W'r 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE   CODE 


OF 


CIVIL   PROCEDUEE. 


THIS  CODE  SHOULD   BE   CITED  AS 

Fairall's  Code  Cw.  Proc. 


T II E 

CODE  OF  CIVIL  PROCEDURE 


OF  THE 


STATE   OF  CALIFORNIA. 

APPROVED    MARCH    11,    1872. 

WITH    AMENDMENTS    UP    TO    AND    INCLUDING    THOSE    OF    THE 
FORTY-FIRST  SESSION  OF  THE  LEGISLATURE,  1915. 


WBiti)  Annotations^ 

Embracing  the  Decisions  of  the  Courts  of  Last  Resort  of  the 
State  of  California 


With   Frequent  Reference  to  the  Decisions   of  the 

Courts   of   Last   Resort   of   Other   States, 

AND  of  the  Federal.  Courts. 


BY 

CHAELES  H.  FAIRALL, 

op   the    SAN    FRANCISCO   BAR, 
AUTHOR  OF  FAIRALL'S  CRIMINAL  LAW  AND  PROCEDURE. 


IN  TWO  VOLUMES. 


VOL.  I. 

Parts  I,  II— §§  1-1059. 


SAN  FRANCISCO: 

BANCROFT-WHITNEY  CO:\IPANY 
1916 


Copyright,  1916, 
BY 

BANCEOFT-WHITNEY  COMPANY. 


San  Franctsco: 
Thf.  Fii.mkr  Brothers  Electrotype  Company, 

TVPOGRAPIIERS   AND   StEREOTYPERS. 


TO 

CHARLES  JOSEPH   HEGGERTY,   ESQ. 

OF  THE  SAN  FRANCISCO  BAR, 

^f)is  WifJtk 

IS   EESPECTFULLY   DEDICATED. 


T^ji^f  D 


PREFACE. 


This  annotated  edition  of  the  Code  of  Civil  Procedure  is  the  result  of 
labors  extending  over  a  period  of  seven  years,  and  while  the  editor  was 
actively  ensraged  in  the  practice  of  the  law.  The  primary  object  in  pub- 
lishing this  edition  was  to  give  the  profession  a  practical,  workable  anno- 
tated code.  To  reduce  the  annotations  to  narrative  form  would  seem  more 
truly  to  subserve  the  real  purpose  of  an  annotated  code :  to  place  before  the 
practitioner  a  general  outline  of  the  law  bearing  on  each  section  as  construed 
by  the  appellate  courts. 

The  result  of  this  effort  is  now  submitted  to  the  judgment  of  the  profes- 
sion ;  and  the  editor  gives,  at  the  outset,  the  assurance  of  a  faithful  attempt 
in  what  he  believes  to  be  the  right  direction,  and  that  he  has  spared  neither 
time  nor  effort  in  the  attempt. 

The  only  satisfaction  the  editor  may  expect  from  the  result  of  his  labors 
is  the  approval  of  the  profession;  for  no  pecuniary  compensation,  calculated 
upon  the  commercial  value  of  the  work,  could  be  at  all  commensurate  with 
the  effort  made  and  the  work  actually  performed.  It  is  therefore  hoped 
that  the  profession,  to  whom  the  work  is  submitted,  and  for  whom  alone 
it  was  undertaken,  will  realize  and  understand  not  only  the  difficulties 
encountered,  but  also  the  prodigious  labor  involved. 

While  endeavoring  always,  in  this  edition,  to  keep  in  view  the  principal 
object  of  the  framers  of  the  code,  viz.,  to  make  legal  proceedings  more 
intelligible,  more  certain,  more  speedy,  and  less  expensive,  the  constant 
aim  has  been  to  combine  what  have  been  proven  by  usage  to  be  the  best 
features  of  code  compilation  and  annotation — to  combine :  1.  A  genuine 
text;  2.  Ample  cross-references;  3.  A  complete  history  of  the  legislation  of 
each  section ;  4.  Full  annotations ;  and  5.  The  original  notes  of  the  code 
commissioners. 

The  aim  has  been,  also,  throughout  the  work,  to  give  the  law  as  it  exists, 
and  the  construction  placed  upon  it  by  the  court ;  to  harmonize  the  decisions 
wherever  a  conflict  was  apparent;  to  explain  discrepancies  and  contradic- 
tions, by  reference  to  the  law  controlling  the  case  under  consideration,  avoid- 
ing, wherever  possible,  any  statement  Avhere  there  is  a  conflict  of  opinion, 
but  where  such  conflict  cannot  be  explained,  to  give  authorities  upon  which 
the  rule  is  based, 

A  genuine  text  is  the  first  essential  of  a  code :  the  law  as  enacted  by  the 
legislature,  and  not  the  law  as  issued  by  the  printer,  is  desired.  Because 
of  errors  of  so  palpable  a  nature  accumulating  in  each  edition  of  the  codes 
as  issued,  the  copy  of  this  code  has  been  diligently  compared  with  the 
original  documents  and  engrossed  bills  on  file  in  the  office  of  the  secretary 
of  state,  so  that  the  present  text  goes  to  press  free  from  the  errors  found  in 
previous  editions. 

In  this  effort  to  secure  accuracy,  much  light  was  thrown  on  the  origin  of 
the  statutes.  Thus,  among  other  things,  it  was  found  that  §§  798,  799,  800, 
and  801  had  never  been  officially  published  in  the  statutes,  but  were  enacted 
April  1,  1872,  and  inserted  in  the  original  edition  of  the  code  published  in 

(vii) 


Vlil  PREFACE. 

that  year.  It  will  be  remembered  that  the  Code  of  Civil  Procedure  was 
appi-oved  by  Governor  Booth  on  March  11, 1872. 

Cross-references  are  made  not  only  to  the  different  parts,  or  departments, 
of  this  code,  but  also  to  the  other  codes,  as  well  as  to  the  judicial  decisions  and 
annotations  of  various  standard  annotated  reports  published  in  America. 

The  legislative  history  of  each  section  has  been  prepared  with  great  care, 
and  with  attention  to  detail;  the  object  in  view  being,  to  give  not  only  the 
source  of  the  statute,  but  also  the  amendments  made  by  the  legislature 
from  time  to  time.  The  value  of  this  department  of  the  code  is  manifest, 
showing,  as  it  does,  the  text  of  each  section  governing  the  action  or  pro- 
ceeding at  the  time  the  decision  of  the  appellate  court  therein  was  rendered. 
A  fuller  use  of  this  legislation  will,  it  is  believed,  explain  many  apparent 
conflicts  in  the  decisions  of  the  appellate  courts. 

The  annotations  in  this  edition  are  extensive  and  complete.  The  arrange- 
ment of  the  notes  is  in  a  convenient  form,  with  headings  in  black-faced  type, 
that  appropriately  indicate  the  subject-matter,  and  aptly  refer  to  the  text  of 
the  statute. 

The  notes  of  the  code  commissioners  have  been  reprinted  in  this  edition 
for  the  purpose  of  further  explaining  and  construing  the  sections  to  which 
they  relate.  These  notes  show  not  only  the  legislation  upon  which  the 
section  is  based,  but  also  the  decisions  of  the  supreme  court;  and  in  many 
cases  it  will  be  found  that  the  code  section  was  based  upon  a  judicial  decis- 
ion of  this  or  of  a  sister  state,  as  well  as  upon  decisions  of  English  courts, 
and  in  some  instances  upon  statements  of  law  contained  in  standard  text- 
books of  law-writers.  These  notes  of  the  code  commissioners  therefore 
furnish  the  truest  guide  to  the  proper  construction  of  the  code ;  and  it  is 
unfortunate  that  hitherto  they  have  not  been  readily  accessible  to  the  pro- 
fession, as  a  more  frequent  reference  to  them,  and  a  careful  study  of  the 
cases  cited  therein,  might  have  tended  to  simplify  our  practice. 

A  careful  and  analytical  study  of  the  decisions  of  the  appellate  courts  con- 
struing the  inapt  legislative  expre.s.sions  in  frequent  amendments  will  convince 
the  profession  that  the  only  solution  of  the  question  of  the  simplification  of 
practice  is  to  take  that  matter  entirely  out  of  the  hands  of  the  legislature, 
and  regulate  practice  by  rules  of  court,  as  has  been  done  successfully  in 
several  states. 

The  great  mass  of  decisions  which  have  accumulated  upon  questions  of 
practice  must  necessarily  have  a  disheartening  effect  upon  a  student  of  the 
law.  We  find  decision  after  decision  upon  questions  so  simple  that  they 
never  should  have  been  entertained  by  any  court.  It  has  been  said,  and 
truly  said,  that  three  fourths  of  the  decisions  of  our  appellate  courts  are 
based  upon  questions  of  practice,  and  it  may  be  further  truthfully  asserted, 
that  at  least  fifty  per  cent  of  these  questions  of  practice  have  been  raised 
and  decided  many  times,  all  of  which  will  be  clear  from  an  examination  of 
the  authorities  cited  in  the  annotations  in  these  volumes. 

CHARLES  H.  FAIR  ALL. 
San  Fea.scisco,  Califoenia. 


GENESIS  AND  GKOWTH  OF  THE  CODES. 


The  adoptiou  of  the  codes  in  1872  grew  out  of  an  effort  to  revise  and  com- 
pile the  laws  of  the  state.  In  1868,  J.  B.  Harmon,  John  Currey,  and  Henry 
P.  Barber  were  appointed  as  commissioners  "to  revi.se  and  compile  all  the  laws 
of  this  state,"  by  "An  Act  to  provide  for  the  revision  and  compilation  of 
the  laws  of  the  state  of  California  and  the  publication  thereof,"  approved 
March  28,  1868  (Stats.  1867-68,  p.  435). 

For  reasons  not  published,  this  commission  was  not  permitted  to  complete 
its  laliors,  but  the  legislature,  by  "An  Act  establisliing  a  commission  for  the 
revision  of  the  laws,"  approved  April  4,  1870  (Stats.  1869-70,  p.  774),  pro- 
vided for  the  appointment  of  another  commission,  consisting  of  three  per- 
sons, to  be  appointed  by  the  governor,  to  "continue  the  labors  "  of  that 
appointed  in  1868,  and  "to  revise  all  the  statutes  of  this  state,  including 
those  enacted  at  the  present  session  of  the  legislature,  and  correct  verbal 
errors  and  omissions,  and  suggest  such  improvements  as  will  introduce 
precision  and  clearness  into  the  wording  of  the  statutes,  and  by  a  supple- 
mental report  thereto  to  designate  the  acts  or  parts  of  acts  which,  in  the 
opinion  of  the  commission,  should  be  repealed,  and  prepare  substitutes 
therefor  when  necessary;  to  recommend  all  such  enactments  as  shall,  in  the 
judgment  of  the  commission,  be  necessary  to  supply  the  defects  of  and  give 
completeness  to  the  existing  legislation  of  the  state,  and  prepare  and  pre- 
sent the  bills  therefor;  to  examine  all  special  acts,  and  such  as  are  confined 
in  their  operation  to  particular  counties  or  cities,  and  to  propose  such 
measures  as  shall  be  necessary  to  give  unity  and  uniformity  thereto,  and 
especially  to  propose,  when  possible,  general  acts,  which  shall  supersede 
the  same ;  to  arrange  the  statutes  in  the  most  systematic  and  convenient 
form,  and  furnish  a  complete  and  alphabetical  list  of  the  matters  contained 
therein,  which,  in  future,  may  be  made  the  basis  of  an  index." 

The  second  code  commission  w^as  composed  of  Ci-eed  Raymond,  John  C. 
Burch,  and  Charles  Lindley.  Differences  of  opinion  arising,  John  H. 
MeKune  w^as  appointed  commissioner  upon  the  retirement  of  Judge  Lindley, 
and  the  complete  drafts  of  the  four  codes  were  issued  by  the  state  printer 
in  1871-72. 

While  the  legislature  adopted  the  drafts  of  the  codes  substantially  as 
reported,  yet  many  amendments  Avere  made,  both  in  the  arrangement  of 
the  subject-matter  and  in  the  language  of  the  text  submitted,  as  will  be  seen 
upon  consulting  the  enrolled  bills  signed  by  Governor  Booth  in  1872. 

The  code  system  is,  for  convenience  and  partial  classification,  divided 
into  four  codes,  to  each  of  which  a  name  is  given;  but  they  are  inseparably 
interwoven  with  one  another,  and  no  one  of  them  is  complete  in  itself,  or 
absolutely  confined  to  a  particular  subject.  (See  Enos  v.  Snyder,  131  Cal. 
72 ;  63  Pae.  170 ;  Lewis  v.  Dunne,  134  Cal.  294 ;  66  Pac.  478.) 

The  idea  prevails  generally,  in  California,  that  our  code  is  but  a  repro- 
duction of  that  of  New  York,  while,  in  fact,  our  Code  of  Civil  Procedure  is 
based  largely  upon  the  Practice  Act  and  the  Probate  Act  of  1851.  Although 
many  of  the  sections  of  these  two  acts  were  substantially  the  same  as  exist- 

{ix) 


X  GENESIS  AND  GROWTH  OP  THE  CODES. 

ing  New  York  statutes,  j-et,  as  a  whole,  they  bear  a  more  striking  resem- 
blance to  the  statutes  of  1850  and  to  the  decisions  of  our  own  state.  It  is 
true  that  David  Dudley  Field  and  his  collaborators  in  New  York  had 
drafted  a  code  system  for  that  state  as  earh^  as  1849-65,  but  it  was  not 
adopted  until  after  1850.  and  indeed  their  draft  of  a  Code  of  Civil  Proce- 
dure was  never  adopted  by  that  state. 

Our  Probate  Act  and  Practice  Act  were  based  almost  entirely  upon  cer- 
tain acts  of  the  first  session  of  our  legislature  (1849-50)  at  San  Jose.  In 
short,  they  were  mere  codifications  of  those  statutes.  As  to  the  origin  of 
the  statutes  themselves  we  are  left  in  doubt.  At  that  time  the  report  of  the 
code  commissioners  of  New  York,  covering  the  subject  of  procedure,  was 
not  available,  and  was  not  given  to  the  legislature  of  that  state  until 
December  31, 1849. 

"While  it  is  true  that  many  of  the  provisions  of  the  acts  of  that  first  ses- 
sion of  our  legislature  are  substantially  the  same  as  the  New  York  statutes, 
yet  such  acts  are  in  no  sense  copies  of  the  laws  of  any  particular  state. 
Such  legislation  was  undoubtedly  the  work  of  the  legislative  judiciary  com- 
mittees, supplemented  by  the  investigations  of  members  of  the  San  Fran- 
cisco bar,  who  were  strenuously  opposing  the  proposition  to  adopt  the  civil 
law,  (as  recommended  by  Governor  Burnett  in  his  message,)  instead  of  the 
common  law.  The  advocates  of  the  common  law  finally  prevailed,  and  it 
was  made  the  rule  of  decision  in  this  state.  The  completion  of  the  labors 
of  these  men  was  the  embodiment,  in  several  acts,  of  the  principles  of 
common-law  procedure,  as  modified  by  legislation  in  the  several  states  of 
the  Union.  The  rules  of  that  practice,  far  from  being  the  work  of  any 
particular  body  of  men,  were  the  common  heritage  of  the  English-speaking 
people,  and  the  result  of  the  exyjerience  of  ages. 

The  statutes  of  all  the  states,  and  the  decisions  of  the  courts,  both  of 
America  and  England,  were  drawn  upon  for  the  principles  embodied  in 
our  first  legislative  enactments,  and  harmonized  to  fit  the  conditions  of  the 
new  state. 

On  March  18,  1872.  after  the  adoption  of  our  code,  David  Dudley  Field 

sent  the  following  telegram  to  the  code  commissioners  of  this  state:  "All 

honor  to  you  for  your  great  work  accomplished!     It  Mali  be  the  boast  of 

California,  that,  first  of  English-speaking  states,   she   set  the   example   of 

written  laws  as  the  necessary  complement  of  a  written  constitution  for  a 

free  people." 

^    ^  C.  H.  F. 


ANALYSIS  OF  CONTENTS  OF  VOLUME  I. 


TITLE  OP  ACT. 

§  1.     Title  and  division  of  this  volume. 

PEELIMINARY  PROVISIONS. 

5    2.    When  this  code  takes  effect.  §  18.  Statutes,    etc.,    inconsistent    with    code   re- 

§     3.     Not  retroactive.  pealed. 

§     4.     Rule  of  construction  of  this  code.  §  19.  This  act,  how  cited,  enumerated,  etc. 

§     5.    Provisions    similar    to    existing    laws,    how  §  -0.  Judicial  remedies  defined. 

construed.  S21.  Division  of  judicial  remedies. 

§     6.     Tenure  of  offices  preserved.  §  22.  Action  defined. 

§     7.     Construction  of  repeal  as  to  certain  offices.  §23.  Special  proceeding  defined. 

§     8.     Actions,  etc.,  not  affected  by  this  code.  §  24.  Division  of  actions. 

§     9.     Limitations  shall  continue  to  run.  §  25.  Civil    actions    arise    out    of    obligations    or 
§  10.     Holidays.  injuries. 

§11.     Same.  §26.  Obligation  defined. 

§12.     Computation  of  time.  §27.  Division  of  injuries. 

§  13.     Certain  acts  not  to  be  done  on  holidays.  §  28.  Injuries  to  property. 

I  14.     "Seal"  defined.  §  29.  Injuries  to  the  person. 

I  15.     Joint  authority.  §  30.  Civil  action,  by  whom  prosecuted. 

§  16.     Words  and  phrases.  §  31.  Criminal  actions. 

§  17.    Certain  terms  used  in  this  code  defined,  §  32.  Civil  and  criminal  remedies  not  merged. 


PART  I. 

COURTS  OF  JUSTICE. 

TITLE  I. 
ORGANIZATION  AND  JURISDICTION. 

Chapter  T.     Courts  of  Justice  in  General.     §§33,34. 
II.     Court  of  Impeachment.     §§35-39. 
III.     Supreme  Court.     §§40-64. 
IV.     Superior  Courts.     §§65-79. 
V.     Justices' Courts.     §§82-119. 

Article  I.     Justices' Courts  in  Cities  and  Counties.     §§85-100. 
II.     Justices' Courts  in  Townships.     §§103-109. 
III.     Justices  of  the  Peace  and  Justices' Courts  in  General.     §§110-119. 
VI.     Police  Courts.     §  121. 
yil.     General  Provisions  Respecting  Courts  of  Justice.     §§  124-153. 
Article  I.     Publicity  of  Proceedings.     §§124,125. 

II.     Incidental  Powers  and  Duties  of  Courts.     §§128-131. 

III.  Judicial  Days.     §§133-135. 

IV.  Proceedings  in  Case  of  Absence  of  Judge.     §§  139,  140. 

V.     Provisions  Respecting  Places  of  Holding  Courts.     §§  142-144. 
VI.     Seals  of  Courts.     §§  147-153. 

CHAPTER  I. 

COURTS  OF  JUSTICE  IN  GENERAL. 

§  33.     Courts  of  justice  in  general. 
I  34.     Courts  of  record. 

CHAPTER  II. 

COURT  OF  IMPEACHMENT. 

§  35.     [Amended  and  reniimbered  section.]  §  38.  Officers  of  the  court. 

§  36.     Members  of  the  court.  §  39.  Trial  of  impeachments  provided  for  in  the 

§  37.    Jurisdiction.  Penal  Code. 

(xi) 


xu 


CONTENTS. 


CHAPTER  Til. 

SUPREME  COURT. 


§  40.  Justices,  elections,  and  terms  of  office. 

§  41.  Coiiiputution  of  years  of  office. 

§  42.  Vacancies. 

§  43.  Departments. 

§  44.  Apportionment  of  business. 

I  45.  Court  in  bank. 

§  46.  Absence  or  disability  of  chief  justice. 

§  47.  Sessions.      Expenses. 

i  48.  Adjournments. 

S  49.  Decisions  in  writing. 

§  50.  Jurisdiction  of  two  kinds. 


§  51.     Original  jurisdiction. 

§  52.     Appellate  jurisdiction. 

§  53.     Powers  in  appealed  cases. 

§  54.     Concurrence  necessary  to  transact  business. 

§  55.     Transfer  of  books,  papers,  and  actions. 

§  56.     Remittiturs  in  transferred  casts. 

§  57.  Appeals  in  probate  proceedings  and  con- 
tested election  cases. 

§  58.  [Related  to  terms  of  district  court.  Re- 
pealed.   §§  59-64.      Same.] 


CHAPTER  IV. 

SUPERIOR  COURTS. 


§  65.    Judges  and  elections. 

§  66.     Counties  having  two  or  more  judges. 

§  67.     Superior   court   of   the   city   and    county    of 

San  Francisco. 
§  67a.  Superior  court  of  Los  Angeles  County. 
§  67b.  Extra  sessions  of  the  superior  court. 
§  68.     Terms  of  office. 
§  69.     Computation  of  years  of  office. 
§  70.     Vacancies. 


§  71 
5  72 


Superior  courts,  by  judges  of  other  counties 

Judges  pro  tempore. 
§  73.     Sessions. 
§  74.     Adjournments. 
§  75.     Jurisdiction  of  two  kinds. 
§  76.     Original  jurisdiction. 
§  77.     Appellate  jurisdiction. 
§  78.     Process. 
§  79.     Transfer  of  books,  papers,  and  actions. 


CHAPTER  V. 

JUSTICES'  COURTS. 

Article  I.     Justices' Courts  in  Cities  and  Counties.     §§82-98. 
II.     Justices' Courts  in  Townships.     §§99-109. 
III.     Justices  of  the  Peace  and  Justices'  Courts  in  General. 


§§  110-119. 


ARTICLE  I. 

JUSTICES'  COURTS  IN  CITIES  AND  COUNTIES. 


§  82.  [Related      to      county      courts. 

§§  83,  84.      Same.] 

§  85.  Justices'  courts  and  justices. 
§  86.      Clerks  of  justices'   courts. 

§  87.  Sheriff  and  deputies. 

§  88.  Offices  and  office  hours. 

§  89.  Actions. 

§  90.  Reassignment  and  transfer  of  actions. 


Repealed. 


§  91.  Payment  of  fees. 

§  92.  Certificates,  transcripts,  and  other  p.npers. 

§  93.  Justices'  docket. 

§  94.  Territorial  extent  of  jurisdiction. 

§  95.  Practice  and  rules. 

§  96.  Attorney.      'Who  shall  not  act  as. 

§  97.  Salaries. 

§  98.  What  justices  successors  of  others. 


ARTICLE  II. 

JUSTICES'  COURTS  IN  TOWNSHIPS. 


§     99.      Justices'     courts    and    justices    in    town- 
ships    having     a     population     between 
two    hundred    and    fifty    thousand    and         § 
four  hundred   thousand.  § 

I  100.      Return   of  process. 

§  101.      Appointment  of  justices'   clerk. 

§  102.      I^uties   of  justices'    clerk. 

§  102a.    Fees. 

§  102b.    Salaries   of   justices   and   clerks. 

§103.  Justices' courts  and  justices.  In  counties.  § 
In  cities  of  various  classes.  Jurisdic-  § 
tion.    Qualifications.    Salaries.     Fees.  § 

§    103 J.   Clerk     to    justice's     court     in     cities     of 


second  and  one  half  and  third  classes, 

duties,    etc. 
103a.   Justices'    clerks,    additional   powers   of. 
103b.   Justices'      clerks      in      counties      of     the 

seventh     class,     appointed     when,     and 

powers    and    duties    of. 

104.  Courts,   where  held. 

105.  What    justice    may    hold    court    for    an- 

other. 

106.  Territorial    extent    of    civil    jurisdiction. 

107.  What   justices   successors   of   others. 

108.  [Related   to   municipal    criminal   court   of 

San  Francisco.  Repealed.  §  109.  Same.] 


ARTICLE  III. 
JUSTICES  OF  THE  PEACE  AND  JUSTICES'  COURTS  IN  GENERAL. 


§  110.  Term  of  office. 

§  1 1 1.  Vacancies. 

§  112.  Civil  jurisdiction. 

$113.  Concurrent  jurisdiction. 


§  114.     Civil  jurisdiction  restricted. 
§115.     Criminal  jurisdiction.       fReppaUd.l 
§  116.     [Amended       and       renumbered       section. 
§§117-119.     Same.] 


CHAPTER  VI. 

POLICE  COURTS. 
I  121.    Provided  for  in  Political  Code. 


CONTENTS.  XIU 

CllAi'TER  VII. 

GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE. 

Article  I.  Publicity  of  Proceedings.     §§  124,  12o. 

II.  Incidental  Powers  uixi  l)uties  of  Courts.     §§  lL'8-131. 

III.  Judicial  Days.     §§  K53-135. 

IV.  Proceetlinjis  in  Case  of  Absence  of  Judge.     §§  139,  140. 

V.     Provisions  Respecting  Places  of  Holding  Courts.     §§  142-144. 
VI.     Seals  of  Courts.     §§147-153. 

ARTICLE  I. 

PUBLICITY  OF  PROCEEDINGS. 

§  124.     Sittings,  public.  * 

§  125.     Sittings,  wlieii  private. 

ARTICLE  II. 

INCIDENTAL  POWERS  AND  DUTIES  OF  COURTS. 

§  128.    Povcers  respecting  conduct  of  proceedings.  §  131.    Probationary    treatment    of    juvenile    of- 

§  129.     Courts  of  record  may  make  rulos.  fenders. 

S  130.    When  rules  take  effect. 

ARTICLE  in. 

JUDICIAL  DAYS. 

§  133.    Days  on  which  courts,  etc.,  may  be  held.  §  135.    Appointments  on  non  judicial  days. 

§  134.    Non-judicial  days. 

ARTICLE  IV. 

PROCEEDINGS  IN  CASE  OF  ABSENCE  OF  .JUDGE. 

§  139.     Adjournment  for  absence  of  judge. 

§140.    Adjournment  till  next  regular  session.     [Repealed.] 

ARTICLE  V. 

PROVISIONS  RESPECTING  PLACES  OF  HOLDING  COURTS. 

§  142.     Change   in  certain  cases  of  place  of  hold-         §  143.     Parties  to  appear  at  place  appointed. 

ing  court,  §  144.     When  sheriff  to  provide  courtrooms,  etc. 

ARTICLE  VI. 

SEALS  OF  COURTS. 

5  147.     What  courts  shall  have  seals.  §  151.     Seals,  how  provided;   private  seals,   when 
§  148.     Seal  of  supreme  court.  used. 

§149.     Seals  of  superior  courts.  §152.     Clerk  of  court  to  keep  seal. 

§  150.    Seals  of  police  courts  of  cities  and  coun-  §  153.    Seals    of   courts,    to    what    documents   af- 
ties.  fixed. 


TITLE  IL 
JUDICIAL  OFFICERS. 

Chapter  I.  Judicial  Officers  in  General.     §§156-162. 

II.  Powers  and  Duties  of  .Judges  at  Chambers.     §§  165-167. 

III.  Disqualifications  of  Judges.     §§170-173. 

IV.  Incidental  Powers  and  Duties  of  Judicial  Officers.     §§  176-179. 

V.  Miscellaneous  Provisions  Respecting  Courts  and  Judicial  Officers.     §§  182-1S8. 

CHAPTER  I. 

JUDICIAL  OFFICERS  IN  GENERAL. 

§156.     Qualifications  of  justices  of  supreme  court.  of  governor. 

§  157.     Qualifications  of  superior  judges.  §  161.     Justices    and    judges    ineligible    to    other 

§158.     Residence  of  superior  judges.  than  judicial  office. 

§  159.     Residence   and  qualification  of  justices   of  §  162.     County    or    prol)ate   judge    who    may    hold 

the  peace.  term    in    another    county.      How    desig- 

§  160.     Judges  holding  superior  courts  at  request  nated.      [Repealed.] 


xiY  CONTENTS. 

CHAPTER  II. 

POWEES  AND  DUTIES  OF  JUDGES  AT  CHAMBERS. 

§  165.    Powers   of  justices    of   supreme    court   at        §  167.     [Related  to  powers   of  probate  judges  at 

chambers.  chambers.     Repealed.] 

§  166.     Powers  of  superior  judges  at  chambers. 

CHAPTER  III. 
DISQUALIFICATIONS  OF  JUDGES. 

§  170.     Disqualification    of    judicial    officer    to    sit  §  172.     No   judicial   officer   to   have   partner   prac- 

or  act  ticing  law. 

§  171.    Judges     and     county     clerks,     when     pro-  §  173.     [Renumbered  and  amended  section.] 

hibited  from  practicing  law. 

CHAPTER  IV. 

INCIDEXTAL  POWERS  AND  DUTIES  OF  JUDICIAL  OFFICERS. 

§  176.     Powers  of  justice  or  judge  out  of  court.  §  178.     To  punish  for  contempt. 

§177.    Powers  of  judicial    officers    as    to    conduct        §179.    To  take  acknowledgments  and  affidavitg, 
of  proceedings. 

CHAPTER  V. 

MISCELLANEOUS  PROVISIONS  RESPECTING  COURTS  AND  JUDICIAL  OFFICERS. 

§  182.     Subsequent     applications     for     orders     re-  §  18.5.  Proceedings  to  be  in  English  language. 

fused,  when  prohibited.  §186.  Abbreviations  and  fitrures. 

§183.    Violations  of  preceding  section.  §187.  Means  to  carry  jurisdiction  into  effect. 

§  184.    Proceedings    not    affected    by    vacancy    in  §  188.  Disposition    of    funds    paid    to     clerk    or 

o&ce.  treasurer  by  order  of  court. 

TITLE  III. 

PERSONS  SPECIALLY  INVESTED  WITH  POWERS  OF  A  JUDICIAL 

NATURE. 

Chapter  L     Jurors.     Articles  I-XII.     §§  190-254. 
II.     Court  Commissioners.     §§258,259. 

CHAPTER  L 

JURORS. 

Article  I.  Jurors  in  General.     §§190-195. 

II.  Qualifications  and  Exemptions  of  Jurors.     §§198-202. 

III.  Of  Selecting  and  Returning  Jurors  for  Courts  of  Record.     §§  204-211. 

IV.  Of  Drawing  Jurors  for  Courts  of  Record.     §§  214-221. 

V.  Of  Summoning  Jurors  for  Courts  of  Record.     §§  225-228. 

VI.  Of  Summoning  Jurors  for  Courts  not  of  Record.     §§230-232. 

Vll.  Of  Summoning  Juries  of  Inquest.     §235. 

VIII.  Obedience  to  Summons,  ho\y  Enforced.     §  238. 

rX.  Of  Impaneling  Grand  Juries.     §§241-243. 

X.  Of  Impaneling  Trial  Juries  in  Courts  of  Record.     §§246-248. 

XL  Of  Impaneling  Trial  Juries  in  Courts  not  of  Record.     §§250,251. 

XIL  Of  Impaneling  Juries  of  Inquest.     §  254. 

ARTICLE  I. 

JURORS  IN  GENERAL. 

§  190.    .Jury  defined.  §  193.    Trial  jury  defined. 

§191.     Different  kinds  of  juries.  §194.     Number  of  a  trial  jury. 

§  192.     Grand  jury  defined.  §  195.     Jury  of  inquest  defined. 

ARTICLE  II. 

QUALIFICATIONS  AND  EXEMPTIONS  OF  JURORS. 

5  198.     Who  competent  to  act  as  juror.  §  201.     Who  may  be  excused. 

§  199.     Who  not  competent  to  act  as  juror.  §  202.     Affidavit  of  claim  to  exemptioa, 

§200.    Who  exempt  from  jury  duty. 


CONTENTS.  XV 

ARTICLE  IIL 

OF  SELECTING  AND  RETURNING  JURORS  FOR   COURTS  OF  RECORD. 

§  204.     Jury-lists,  by  whom  and  when  to  be  made.  §  208.  Certified    list    to    be    filed    with    clerk    of 
§  205.      Selection   niul   listing'  of   persons   suituble                              superior  rourt. 

and  competent  to  serve  as  jurors.  §  209.  Duty  of  clerk.      .lury-boxes. 

§206.      Lists  to  contain  how  many   names.  §210.  Kccular  jurors  to  si-rve  one  year. 

§  207.      Person  who  served  as  juror  during  preced-  §  211.  .lurors  to  bo  drawn  from  boxes. 

ins  year  not  to  be  selected.    [Repealed.] 

ARTICLE  IV. 
OF  DRAWING  JURORS  FOR  COURTS  OF  RECORD. 

§  214.     Order  of  judce   or  judges  for  drawing  of  pealed.] 

jury.  §  218.  Shall  proceed,  when.      [Repealed.] 

§215.    When  clerk  shall  draw.  §219.  Drawing,  how  conducted. 

§  216.     Sheriff    and    judge     to    witness    drawing.  §  220.  Preservation  of  ballots  drawn. 

[Repealed.]  §  221.  Copy    of    list    to    be    furnished    by    clerk. 

§  217.    Drawing,    when    to    be    adjourned.       [Re-  [Repealed.] 

ARTICLE  V. 

OF  SUMMONING  JURORS  FOR  COURTS  OF  RECORD. 

§225.    Sheriff  to  summon  jurors,  how.  §227.    Of  summoning  jurors  to  complete  a  panel. 

§226.     Of  drawing  and   summoning  jurors  to   at-         §228.     Compensation  of  elisor, 
teud  forthwith. 

ARTICLE  VI. 

OF  SUMMONING  JURORS  FOR  COURTS  NOT  OF  RECORD. 

§230.    Jurors  for  justices' or  police  courts.  §232.    Officer's  return. 

§231.    How  to  be  summoned. 

ARTICLE  VII. 
OF  SUMMONING  JURIES  OF  INQUEST. 

§  235.     How  to  be  summoned. 

ARTICLE  VIII. 

OBEDIENCE  TO  SUMMONS,  HOW  ENFORCED. 

§  238.     Attachment  and  fine. 

ARTICLE  IX. 

OF  IMPANELING  GRAND  JURIES. 

§  241.    Grand  juries,  when  and  by  whom  impan-        §  243.    Manner  of  impaneling  prescribed  in  Penal 

eled.  Code. 

§  242.     How  constituted. 

ARTICLE  X. 

OF  IMPANELING  TRIAL  JURIES  IN  COURTS  OP  RECORD. 

§  246.     Clerk  to  call  list  of  jurors  summoned.  §  248.     Counties  having  more  than  one  judge. 

§  247.    Manner  of  impaneling  prescribed  in  part 
two. 

ARTICLE  XL 

OF  IMPANELING  TRIAL  JURIES  IN  COURTS  NOT  OF  RECORD. 

§  250.     i'roceedings  in  forming  jury. 
§  251.     Manner  of  impaneling. 

ARTICLE  XII. 

OF  IMPANELING  JURIES  OF  INQUEST. 

§  254.     Manner  of  impaneling. 

CHAPTER  II. 

COURT  COMMISSIONERS. 

§  258.     Appointment  and  qualifications. 
I  259.    Powers  of  court  commissioners. 


XVI  CONTENTS. 

TITLE  IV. 
MINISTERIAL  OFFICERS  OF  COURTS  OF  JUSTICE. 

Chapter  I.     Of  Ministerial  Officers  Generally.     §  262. 

II.     Secretaries  and  Bailiffs  of  the  Supreme  Court.     §§  265,  266. 
III.     Phonographic  Reporters.     §§  268-274b. 

CHAPTER  I. 

OF  MINISTERIAL  OFFICERS  GENERALLY. 

§  262.     Election,  tt'rms,  powers,  and  duties,  where  prescribed. 

CHAPTER  II. 

SECRETARIES  AND  BAILIFFS  OF  THE  SUPREME  COURT. 

§  265.     Appointment. 

§  266.     Tenure  of  office,  and  dutiei. 

CHAPTER  III. 

PHONOGRAPHIC  REPORTERS. 

?  268.     Phonographic  reporters  for  supreme  court,  §  272.     Oath  of  office. 

■where  provided  for.  §  273.     Reports  prima  facie  correct  statements. 

§269.    Phonographic  reporters  for  superior  courts,  §274.     Fees. 

their  appointment,  and  duties.  §  274a.  Transcribing  of  opinions  and  instructions, 
§  270.     Qualifications     and     test     of     competency.  a  county  charge. 

Pro  tempore  reporters.  §  274b.  Fees    and    compensation    of    phonographic 
§  271.    Attention  to  duties.     Reporters  pro  tern-  reporter. 

pore. 

TITLE  V. 

PERSONS    SPECIALLY    INVESTED    WITH   MINISTERIAL    POWERS 
RELATING  TO  COURTS  OF  JUSTICE. 

Chapter  I.-  Attorneys  and  Counselors  at  Law.     §§275-299. 

II.     Other  Persons  Invested  with  Such  Powers.     §  304, 

CHAPTER  I. 

ATTORNEYS  AND  COUNSELORS  AT  LAW. 

§  275.     Who  may  be  admitted  as  attorneys.  §  286.  Death  or  removal  of  attorney. 

§276.     Qualifications.  §287.  Causes    for    which  court    may    remove    at- 

§  277.     Certificate  of  admission  and  license.  torney. 

§  278.     Oath.  §  288.  Conviction  of  felony. 

§279!     Attorneys  of  other  states.  §289.  Proceedings  for  removal  or  suspension. 

§  280.     Roll  of  attorneys.  §  290.  Accusation. 

§  280a.  Effect    of    diploma    granted    by    Hastings         §  291.  Verification. 

College  of  the  law.  §  292.  Citation  of  accused  by  publication. 

§  280b.  Admission    to    practice    law    on    diplomas         §  293.  Appearance. 

from  certain  universitits.  §  294.  Objections  to  accusation. 

§  281.     Penalty  for  practicing  without  licenge.  §  295.  Demurrer. 

I  282.     Duties.  §  296.  Answer. 

§  283.     Authority.  §  297.  Trial. 

I  284.     Change  of  attorney.  §  298.  Reference  to  take  depositions. 

J  285.    Notice  of  change.  §  299.  Judgment. 

CHAPTER  II. 

OTHER  PERSONS  INVESTED  WITH  SUCH  POWERS, 
g  304.    Receivers,   executors,    administrators,   tind  guardians. 


CONTENTS. 


XVll 


PART  II. 

CIVIL  ACTIONS. 


titlf:  I. 

FORM  OF  CIVIL  ACTIONS. 


§  307.     Onp  fnrm  of  civil  ai'tion  only. 

§  308.    Partios  to  actions,  how  designated- 


§  309.    Special  issues  not  made  by  pleadings,  how 
tried. 


TITLE  IL 
TIME  OF  COMMENCING  CIVIL  ACTIONS. 

Chapter  I.     Time  of  Commencing  Actions  in  General.     §312. 

II.     Time  of  Commencing  Action  for  Recovery  of  Real  Property.     §§  31.""?)28. 
III.     Time  of  Commencing  Actions  Other  than  for  Recovery  of  Real  Property.     §§  335- 

349. 
IV.     General  Provisions  as  to  Time  of  Commencing  Actions.     §§  350-3G3. 

CHAPTER  I. 

TIME  OF  COMMENCING  ACTIONS  IN  GENERAL. 
§  312.     Commencement  of  civil  actions. 


CHAPTER  II. 

TrVIE  OF  COMMENCING  ACTIONS  FOR  RECOVERY  OF  REAL  PROPERTY. 


§315.     When  the  people  will  not  sue. 

§  316.  When  action  cannot  be  brought  by  grantee 
from  the  state. 

§  317.  When  actions  by  the  people  or  their  gran- 
tees are  to  bo  brought  within  five  years. 

§  318.  Seisin  within  five  years,  when  necessary 
in  action  for  real  property. 

§  319.  Such  seisin,  when  necessary  in  action  or 
defense  arising  out  of  title  to  or  rents 
of  real  property. 

§  320.     Entry  on  real  estate. 

§  321.  Possession,  whin  presumed.  Occupation 
deemed  under  legal  title,  unless  adverse. 

§  322.     Occupation    under    written    instrument    or 


judgment,  when  deemed  adverse. 

§  323.  What  constitutes  adverse  possession  un- 
der written  instrument  or  judgment. 

§  324.  Premises  actually  occupied  under  claim 
of  title  deemed  to  be  held  adversely. 

§  325.  What  constitutes  adverse  possession  un- 
der claim  of  title  not  written. 

§  326.  Relation  of  landlord  and  tenant  as  affect- 
ing adverse  possession. 

§  327.  Right  of  possession  not  affected  by  descent 
cast. 

§  328.  Certain  disabilities  excluded  from  time  to 
commence  actions. 


CHAPTER  III. 

TIME    OF   COMMENCING    ACTIONS    OTHER    THAN    FOR    RECOVERY    OF    REAL 

PROPERTY. 


§  335.  Periods  of  limitation  prescribed. 

§  336.  Within  five  years. 

§  337.  Within  four  years. 

§  338.  Within  three  years. 

§  339.  Within  two  years. 

§  340.  Within  one  year. 

§  341.  Within  six  months. 

§  342.  Same. 

§  343.  Actions    for   relief    not   hereinbefore    pro- 
vided for. 


§  344.  Where  cause  of  action  accrues  on  mutual 
account. 

§  345.  Actions  by  tlie  people  subject  to  the  limi- 
tations of  this  chapter. 

§  346.     Action  to  redeem  mortgaire. 

§  347.  Same,  when  some  of  mortgagors  are  not 
entitled  to  redeem. 

§  348.  No  limitations  where  money  deposited  in 
bank. 

§  349.  Time  for  commencing  actions  under  "local 
improvement  act  of  1901." 


XVIU 


COXTENTS. 


CHAPTER  IV. 

GENERAL  PROVISIONS  AS  TO  TIME  OF  COMMENCING  ACTIONS. 


§  350.    "When  an  action  is  commenced. 

§  351.  Exception,  where  defendant  is  out  of  the 
state. 

§  352.  Exception,  as  to  persons  under  disabil- 
ities. 

§  353.  Provision  where  person  entitled  dies  be- 
fore limitation  expires. 

§  354.  In  suits  by  aliens,  time  of  war  to  be  de- 
ducted. 

§  355.  Provision  where  judgment  has  been  re- 
versed. 

§  356.  Provision  where  action  is  stayed  by  in- 
junction. 


§  357.    Disability  must  exist  when  right  of  action 
accrued. 
When  two  or  more  disabilities  exist,  etc. 
This  title  not  applicable  to  actions  against 
directors,  etc.      Limitations  in  such  cases 
prescribed. 
Acknowledgment  or  new  promise  must  be 
in  writing. 

§  361.    Limitation  laws  of  other  states,  effect  of. 
§  362.     Existing  causes  of  action  not  affected. 
§  363.     "Action"  includes  a  special  proceeding. 


§  358. 
§  359. 


§  360. 


TITLE  III. 
PARTIES  TO  CIVIL  ACTIONS. 


§  367.     Action  to  be  in  name  of  party  in  interest.  §  381. 

§  368.  Assignment  of  thing  in  action  not  to  pre- 
judice defense.  §  382. 

§  369.  Executor,  trustee,  etc.,  may  sue  without 
joining  the  persons  beneficially  inter- 
ested. §  383. 

§  370.     Married  woman  as  party  to  action. 

§  371.     Wife  may  defend,  when. 

§  372.    Appearance    of   infant,    etc.,    by   guardian.         §  384. 
May  compromise. 

§  373.     Guardian,  how  appointed.  §  385. 

§  374.  Unmarried  female  may  sue  for  her  own 
seduction. 

§  375.    Father,    etc.,    may    sue    for    seduction    of         §  386. 
daughter,   etc. 

§  376.     Father,   etc.,   may  sue  for  injury  or  death 

of  child.  §  387. 

§  377.    When   representatives   may   sue   for   death 

of    one    caused    by    the    wrongful   act    of         §  388. 
another. 

§  378.    Who  may  be  joined  as  plaintiffs.  §  389. 

I  379.     W^ho  may  be  joined  as  defendants. 

§  380.    Parties   defendant   in   an    action   to    deter-         §  390. 
mine  conflicting  claims  to  real  property. 


Parties  holding  title  under  a  common 
source,  when  may  join. 

Parties  in  interest,  when  to  be  joined. 
When  one  or  more  may  sue  or  defend 
for  the  whole. 

Plaintiff  may  sue  in  one  action  the  dif- 
ferent parties  to  commercial  paper  or 
insurance  policies. 

Tenants  in  common,  etc.,  may  sever  in 
bringing  or  defending  actions. 

Action,  when  not  to  abate  by  death,  mar- 
riage, or  other  disability.  Proceedings 
in  such  case. 

Another  person  may  be  substituted  for 
the  defendant.  Conflicting  claims,  how 
made. 

Intervention,  when  it  takes  place,  and 
how  made. 

Associates  may  be  sued  by  name  of  as- 
sociation. 

Court,  when  to  decide  controversy  or  to 
order  other  parties  to  be  brought  in. 

Actions  against  fire  departments. 


TITLE  IV. 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


§  392.     Certain    actions    to    be    tried    where    the 

subject  or  some  part  thereof  is  situated. 
§  393.     Other    actions,    where    the    cause   or    some 

part  thereof  arose. 
§  394.    Place  of  trial  of  actions  against  counties. 
§  395.    Actions    to    be    tried    in    county    in    which 

defendant     resides,     etc.      If     defendant 

does  not  reside  in  state. 
§  396.    Action  may  be  tried  in  any  county,  unless 

the    defendant    demand    a    trial    in    the 


proper  county. 
§  397.    Place  of  trial  may  be  changed  in  certain 

cases. 
§  398.     When    judge    is    disqualified,    cause    to   be 

transferred. 
§  399.     Papers     to     be     transmitted.      Costs,     etc. 

Jurisdiction,  etc. 
§  400.     Proceedings     after    judgment     in    certain 

cases  transferred. 


TITLE  V. 
MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


§  405.    Actions,  how  commenced. 

§  406.  Complaint,  how  indorsed.  When  sum- 
mons may  be  issued,  and  how  waived. 

§  407.  Summons,  how  issued,  directed,  and  what 
to  contain. 

§  408.  Manner  and  time  of  issuing  alias  sum- 
mons. 

§  409.  Notice  of  the  pendency  of  an  action  af- 
fecting the  title  to  real  property. 

§  410.    Summons,  how  served  and  returned. 


§  411.     Summons,  how  served. 

§  412.  Cases  in  which  service  of  summons  may 
be  by  publication.  Certificate  of  resi- 
dence. 

§413.     Manner  of  publication. 

I  414.  Proceedings  where  there  are  several  de- 
fendants, and  part  only  are  served. 

§  415.     Proof  of  service,  how  made. 

§  416.     When  jurisdiction  of  action  acquired. 


CONTENTS.  XIX 


TITLE  VI. 
PLEADINGS  IN  CIVIL  ACTIONS. 

Chapter  I.  Pleadings  in  Genpral.     §§420-422. 

II.  Complaint.     §§  42;V427. 

III.  Demurrer  to  Coinpl.iint.     §§430-434. 

IV.  Answer.     §§  437-442. 

V.  Demurrer  to  Answer.     §§443,444. 

VI.  Verification  of  I'leadings.     §§  44(>-449. 

VII.  General  Kules  of  Pleading.     §§452-465. 

VIII.  Variance.     Mistakes  in  Pleadings  and  Amendments.     §§469-476. 

CHAPTER  L 

PLEADINGS  IN  GENERAL. 

§420.    Definition  of  pleadings.  of  pleadings. 

§421.    This  code  prescribes   the  form  and   rulos         §422.    What  pleadings  are  allowed. 

CHAPTER  11. 

COMPLAINT. 

5  425.     Complaint,  first  pleading.  §  426a.  Statement  of  facts  in  divorce  complaint. 

§  426.    Complaint,  what  to  contain.  §  427.    What  causes  of  action  may  be  joined. 

CHAPTER  III. 

DEMURRER  TO  COMPLAINT. 

§  430.    When  defendant  may  demur.  complaint  is  amended. 

§  431.    Demurrer  must  specify  grounds.     May  be  §  433.     Objection    not     appearing     on     complaint, 

taken  to  part.      May  answer  and  demur  may  be  taken  by  answer. 

at  same  time.  §  434.    Objections,  when  deemed  waived. 
§  432.    What    proceedings    are    to    be    had    when 

CHAPTER  IV. 

ANSWKR. 

§  437.    Answer,  what  to  contain.  §  440.    Counterclaim  not  barred  by  death  or  as- 
§  437a.  Actions   to   recover   insurance.      What    de-  signment. 

fendant  claiming  exemption  must  set  up.  §  441.    Answer    may    contain    several    grounds    of 
§  438.     When  counterclaim  may  be  set  up.  defense.      Defendant    may    answer    part 

§  439.     When    defendant   omits  to  set   up   counter-  and  demur  to  part  of  complaint, 

claim.  §  442.     Cross-complaint. 

CHAPTER  V. 

DEMURRER  TO  ANSWER. 

§  443.     When  plaintiff  may  demur  to  answer. 
I  444.    Grounds  of  demurrer. 

CHAPTER  VL 

VERIFICATION  OF  PLEADINGS. 

§  446.     Verification  of  pleadings.  strument   set  out  in   answer,   its  execu- 

§  447.     Copy   of   written   instrument   contained   in  tion  admitted,  unless  denied  by  plaintiff 

complaint    admitted,    unless    answer    is  under  oath. 

verified.  §  449.     E.xceptions    to    rules    prescribed    by    two 

§  448.    When   defense  is  founded  on  written   in-  preceding  sections. 

CHAPTER  VII. 

GENERAL  RULES  OF  PLEADING. 

§452.    Pleadings  to  be  liberally  construed.  §454.    How  to  state  an  account  in  a  pleading. 

§  453.     Sham    and    irrelevant    answers,    etc.,    may        §  455.     Description  of  real  property  in  a  pleading, 
be  stricken  out.  §  456.     Judgments,  how  pleaded. 


XX 


CONTENTS, 


§  457.    Conditions  precedent,  how  to  be  pleaded. 
§  458.     Statute  of  limitations,  how  pleaded. 
§  459.     Private  statutes,  how  pleaded. 
§  460.    Libel    and    slander,    how    stated    in    com- 
plaint. 
§  461.    Answer  in  such  cases. 


§  462.  Allegations  not  denied,  when  to  be  deemed 
true.      When  to  be  deemed  controverted. 

§  463.     A  material  allegation  defined. 

§  464.     Supplemental  complaint  and  answer. 

§  465.  Pleadings  subsequent  to  complaint  must 
be  filed  and  served. 


VAEIAXCE. 


CHAPTER  VIII. 

MISTAKES  IN  PLEADINGS  AND  AMENDMENTS. 


§  469.     Material  variance,  how  provided  for. 

§  470.     Immaterial  variance,  how  provided  for. 

§  471.     What  not  to  be  deemed  a  variance. 

§  472.  Amendments  of  course,  and  effect  of  de- 
murrer. 

§  473.  Amendments  by  the  court.  Enlarging 
time   to  plead  and  relieving  from  judg- 


ments, etc. 
§  474.     Suing  a  party  by  a  fictitious  name,  when 

allowed. 
§  475.     No  error   or  defect  to  be  regarded  unless 

it  affects  substantial  rights. 
§  476.     Time  to  amend  or  answer,  running  of. 


TITLE  VII. 
PROVISIONAL  REMEDIES  IN  CIVIL  ACTIONS. 

Chapter  I.  Arrest  and  Bail.     §§478-504. 

II.  Claim  and  Delivery  of  Personal  Property.     §§509-521. 

III.  Injunction.     §§  525-533. 

IV.  Attachment.     §§  537-560. 
V.  Eeceivers.     §§  564-570. 

YI.     Deposit  in  Court.     §§572-574. 


CHAPTER  L 

AEEEST  AND  BAIL. 


§  478.     No  person   to   be   arrested   except   as  pre-  §  492. 

scribed  by  this  code. 

§  479.    Cases  in  which  defendant  may  be  arrested.  §  493. 
§  480.     Order  for  arrest,  by  whom  made. 

§  481.     Affidavit  to  obtain  order,  what  to  contain.  §  494. 

§  482.     Security     by     plaintiff     before     order     of  §  495. 

arrest.  §  496. 

§  483.     Order,  when  made,  and  its  form.  §  497. 

§  484.     Affidavit  and  order  to  be  delivered  to  the  §  498. 

sheriff,  and  copy  to  defendant.  §  499. 

§  485.     Arrest,  how  made.  §  500. 
§  486.     Defendant    to    be    discharged    on    bail    or 

deposit.  §  501. 
§  487.     Bail,  how  given. 

§  488.     Surrender  of  defendant.  §  502. 

§  489.     Same.  §  503. 
§  490.     Bail,  how  proceeded  against. 

§  491.    Bail,  how  exonerated.  §  504. 


Delivery  of  undertaking  to  plaintiff,  and 
its  acceptance  or  rejection  by  him. 

Notice  of  justification.  New  undertaking, 
if  other  bail. 

Qualifications  of  bail. 

Justification  of  bail. 

Allowance  of  bail. 

Deposit  of  money  with  sheriff. 

Payment  of  money  into  court  by  sheriff. 

Substituting  bail  for  deposit. 

Money  deposited,  how  applied  or  disposed 
of. 

Sheriff,  when  liable  as  bail,  and  his  dis- 
charge from  liability. 

Proceedings  on  judgment  against  sheriff. 

Motion  to  vacate  order  of  arrest  or  re- 
duce bail.      Affidavits  on  motion. 

When  the  order  vacated  or  bail  reduced. 


CHAPTER  II. 

CLAIM  AND  DELIVEEY  OF  PEESONAL  PEOPEETY, 


§  509.     Delivery    of    personal    property,    when    it  §  515. 

may  be  claimed.  §  516. 

§  510.  Affidavit  and  its  requisites.  §  517. 
§  511.    Requisition  to  sheriff  to  take  and  deliver 

the  property.  §518. 

§  512.     Security  on  the  part  of  the  plaintiff,   and  §  519. 

proceedings  in  serving  the  order.  §  520. 
§  513.     Exception     to     sureties     and     proceedings 

thereon,  or  on  failure  to  accept.  §  521. 
§  514.    Defendant,  when  entitled  to  redelivery. 


Justification  of  defendant's  sureties. 

Qualification  of  sureties. 

Property,    how    taken    when    concealed    in 

building  or  inclosure. 
Property,  how  kept. 
Claim  of  propertj'  by  third  person. 
Notice   and    affidavit,    when   and   where    to 

be  filed. 
Protection    of    plaintiff    in    possession    of 

property. 


CHAPTER  III. 

INJUNCTION, 


§  525.  Injunction,  what  is,  and  who  may  grant 
it. 

§  526.     When  it  may  be  granted. 

§  526a.  Actions  by  taxpayers  to  enjoin  illegal  ex- 
penditure or  waste  by  public  officers. 

§  527.  Injunction.  Notice.  Party  obtainins  order 
must  be  ready.  Defendant  entitled  to 
continuance.     Procedure, 

§  528.     Injunction  after  answer. 


§  529.     Security  upon  injunction. 

§  530.  When  injunction  for  use  of  water  may 
be  refused  upon  defendant  giving  bond. 

§  531.  Injunction  to  suspend  business  of  a  cor- 
poration, how  and  by  whom  granted. 

§  532.  Motion  to  vacate  or  modify  injunction. 
Bond  on  modification. 

§  533.    W'hen  to  be  vacated  or  modified. 


CONTENTS. 


XXI 


CHAPTER  IV. 

ATTACHMENT. 


§  537.     Attarhmont,  whsn  and  in  what   cases  may 

issui'. 
§  r>:iS.     Affidavit  for  attachmnnt,  what  to  contain. 
S  539.     Undertakin;;    on    attachment.      Exceptions 

to  sureties. 
§  540.     Writ,     to    whom     directed     and     what     to 

state. 
§  541.     Shares  of  stock  and  debts  due  defendant, 

how   attached  and  disposed  of. 
§  542.     How   ri'al   and   personal   property   shall  be 

attached. 
§  542a.  Lien  of  attachment. 
§  543.     Attorney    to    give    written    instructions    to 

sheriff  what  to  attach. 
§  544.     Garnishment,     when    garnishee     liable     to 

plaintiff. 
§  545.     Citation   to   garnishee   to   appear   before   a 

court  or  judge. 
§  546.     Inventory,   how   made.      Party  refusinc:  to 

give  memorandum  may  be  compelled  to 

pay  costs. 
§  547.     Perishal)le  property,  how  sold.     Accounts 

without  suit  to  be  collected. 
§  548.    Property   attached  may   be  sold  as  under 


execution,  if  the  interests  of  the  parties 
require. 

§  549.  When  property  claimed  by  a  third  party, 
how   tried. 

§  550.  If  plaintiff  obtains  judgment,  how  satis- 
fied. 

§  551.  When  there  remains  a  balance  due,  how 
collected. 

§  552.  When  suits  may  be  commenced  on  the 
undertaking. 

§  553.  If  defendant  recovers  judgment,  'what  the 
sheriff   is   to   deliver. 

§  554.     Proceedings  to  release  attachments. 

§  555.  Attachment,  in  what  cases  it  may  be  re- 
leased and  upon  what  terms. 

§  556.  When  a  motion  to  discharge  attachment 
may  be  made,  and  upon  what  grounds. 

§  557.  When  motion  made  on  affidavit,  it  may 
be  opposed  by  affidavit. 

§  558.     When  writ  must  be  discharged. 

§  559.     When  writ  to  be  returned. 

§  560.  Release  of  real  property  from  attach- 
ment. 


CHAPTER  V. 

EECEIVERS. 


§  564.     Appointment  of  receiver.  §  567. 

§  565.     Appointment    of    receivers    upon    dissolu-  §  568. 

tion  of  corporations.  §  569. 

§  566.    Receiver,  restrictions  on  appointment.     Ex  §  570. 

parte  application,  undertalcing  on. 


Oath  and  undertaking  of  receiver. 
Powers  of  receivers. 
Investment  of  funds. 

Disposition  of  unclaimed  funds  in  hands 
of  receiver. 


§  572. 
§  573. 


CHAPTER  VI. 

DEPOSIT  IN  COURT. 


Deposit  in  court. 

Money  paid  to   clerk  must   be   deposited 


§  574. 


with  county  treasurer. 
Manner  of  enforcing  the  order. 


TITLE  VIII. 
TRIAL  AND  JUDGMENT  IN  CIVIL  ACTIONS. 


Judgment  in  General.     §§  577-583. 
Judgment  upon  Failure  to  Answer.     §  585. 
Issues.     Mode  of  Trial,  and  Postponements.     §§  588-596. 
Trial  by  Jury.     §§  600-628. 
Article  I.     Formation  of  Jury.     §§600-604. 
II.     Conduct  of  Trial.     §§607-619. 
III.     The  Verdict.     §§624-628. 
Trial  by  Court.     §§  631-636. 
References  and  Trials  by  Referees.     §§  638-645. 
Provisions  Relating  to  Trials  in  General.     §§  646-663a. 
Article  I.     Exceptions.     §§  646-653. 
II.     New  Trials.     §§  656-663a. 
VIII.     Manner  of  Giving  and  Entering  Judgment.     §§  664-680^^, 


Chapter  I. 

II. 

III. 

IV 


V. 

VI. 

VII. 


CHAPTER  I. 

JUDGMENT  IN  GENERAL. 


§  577.    Judgment  defined. 

!  578.    Judgment   may   be   for   or    against   one   of 

the  parties. 
§  579.    Judgment   may  be   against   one   party   and 

action  proceed  as  to  others. 
§  580.    The  relief  to  be  awarded  to  the  plaintiff. 


§  581.  Action  may  be  dismissed,  or  nonsuit  en- 
tered. 

§  581a.  Dismissal  of  action  for  failure  to  issue 
summons,  when. 

§  581b.  Dismissal  of  actions  after  transfer. 

§  582.    All  other  judgments  are  on  the  merits. 

S  583.    Dismissal  of  actions. 


XX 11 


CONTENTS. 


§  588. 
§  589. 
§  590. 
§  591. 
§  592. 


CHAPTER  II. 

JUDGMENT  UPON  FAILURE  TO  ANSWER. 
§  585.    In  what  cases  judgment  may  be  had  upon  failure  of  defendant  to  answer. 

CHAPTER  III. 

ISSUES.     MODE  OF  TRIAL,  AND  POSTPONEMENTS. 

§  593 


Issue  defined,  and  the  different  kinds. 

Issue  of  law,  how  raised. 

Iesu«  of  fact,  how  raised. 

Issue  of  law,  how  tried. 

Issue    of    fact,    how    tried.      When    issues 

both  of  law  and  fact,  the  former  to  be 

first  disposed  of. 


Clerk  must  enter  causes  on  the  calendar, 

to  remain  until  disposed  of.    When  may 

be  restored. 
§  594.     Parties  may  bring  issue  to  trial. 
§  595.     Motion  to  postpone  a  trial  involving  title 

to  mining  claim. 
§  596.     In  cases  of  adjournment  a  party  may  have 

the  testimony  of  any  witness  taken. 


CHAPTER  IV. 

TRIAL  BY  JURY. 

Article  T.     Formation    of  Jury.     §§  600-f504:. 
IL     Conduct  of  Trial.     §§  607-619. 
nL     Verdict.     §§  624-628. 


ARTICLE  I. 
FORMATION  OP  JURY. 


§  600.    Jury,  how  drawn. 

§  601.    Challenges.      Each  party  entitled   to  four 
peremptory  challenges. 


§  602.    Challenge  of  jurors  for  canse. 
I  603.     Challenges,  how  tried. 
§  604.    Jury  to  be  sworn. 


§  607. 
§  608. 


§  609. 
§  610. 
§  611. 

§  612. 
§  613. 


ARTICLE  II. 

CONDUCT  OF  TRIAL. 


Order  of  proceeding  on  trial. 

Charge  to  the  jury.  Court  must  furnish, 
in  writing,  upon  request,  the  points  of 
law  contained  therein. 

Special  instructions. 

"View  by  jury  of  the  premises. 

Admonition  when  jury  permitted  to  sepa- 
rate. 

Jurv  may  take  with  them  certain  papers. 

Deliberation  of  jury,  how  conducted. 


§  614.  May  come  into  court  for  further  instruc- 
tions. 

§  615.     Proceedings  if  juror  becomes   sick. 

I  616.  When  prevented  from  giving  verdict,  the 
cause  may  be  again  tried. 

§  617.  While  jury  are  absent,  court  may  adjourn 
from  time  to  time.      Sealed  verdict. 

§  618.  Verdict,  how  declared.  Form  of.  Polling 
the  jury. 

§  619.    Proceedings  when  verdict  is  informal. 


ARTICLE  III. 

VERDICT. 


§  624.    General  and  special  verdicts  defined. 

i  625.     When  a  general  or  special  verdict  may  be 

rendered. 
§  626.    Verdict  in  actions  for  recovery  of  money 


or  on  establishing  counterclaim. 
§  627.     Verdict    in    actions    for    the    recovery 

specific  personal  property. 
§  628.     Entry  of  verdict. 


of 


§  631. 
§  632. 
I  633. 


CHAPTER  V. 

TRIAL  BY  COURT. 


When    and    how    trial    by    jury    may    be 

"W&i  vcd.. 
Upon    trial    by    court,    decision   to    be    in 

writing  and  filed  within  thirty  days. 
Facts  found  »nd  conclusions  of  law  must 


be  separately  stated.      Judgment  on. 
§  634.     Waiving  findings  of  fact. 
§635.     Findings,  how  prepared.      [Repealed.] 
§  636.    Proceedings   after   determination   of   issue 

of  law. 


§  638. 
§  639. 
§  640. 


CHAPTER  VI. 

REFERENCES  AND  TRIALS  BY   REFEREES. 


Reference  ordered  upon  agreement  of  par- 
ties, in  what  cases. 
Reference    ordered    on    motion,     in    what 

Referees    in    eminent-domain    proceedings 
involving  city,  etc. 


§  641.  A  party  may  object.     Grounds  of  objection. 

§  642.  Objections,  how  disposed  of. 

§  643.  Referees  to  report  within  twenty  days. 

§  644.  Effect  of  referee's  finding. 

I  645.  How  excepted  to,  etc. 


CONTENTS. 


xxm 


CHAPTER  VII. 

PROVISIONS  RELATING  TO  TRIALS  IN  GENERAL. 

Article  I.     Exc-eptiona.     §§  646-653. 
H.     New  Trials.     §§  656-663a. 


§  646. 
§  647. 

§  648. 
§  649. 

i  650. 


§  656. 
§  657. 
§  658. 
S  659. 


ARTICLE  I. 

EXCEPTIONS. 


"Exreption"  defined.      When  taken. 
Verdict    or    order    in    absence    of    party, 

deemed  excepted  to.  §  651. 

Exception,  form  of.  §  652. 

Bill   of  exceptions,   when  to  be  presented, 

etc.  §  653. 

Bill   of  exceptions.      Presentment   of   bill. 


Duty    of    judge    to    strike    out    useless 

matter. 
Exceptions  after  judgment. 
Proceedings   if  judge   refuse   to   allow   bill 

of   exceptions. 
Settlement  of  bill  of  exceptions. 


ARTICLE  II. 

NEW  TRIALS. 


New  trial  defined. 
When  a  new  trial  may  be  granted. 
Motion  for   new  trial.      Papers. 
Notice  of  motion.    Upon  whom  served,  and 
what  to  contain. 


§  6G0.    Motion,  when  to  he  heard. 
§661.      Record  on  appeal.      [ Repealed.] 
§  662.      New  trial  on  court's  own  motion. 
S  663.     Vacation  of  judgment. 
§  663a.  Notice  of  intention,  service  of. 


[Rpld.] 


CHAPTER  VIII. 

MANNER  OF  GIVING  AND  ENTERING  JUDGMENT. 


§  664.     Judgment    to    be    entered    in    twenty-four 

hours,  etc. 
§  665.     Case  may  be  brought  before  the  court  for 

argument. 
§  666.     When     counterclaim     established     exceeds 

plaintiff's  demand. 
§  667.     In  replevin,   judgment  to  be  in  the   alter- 
native,   and   with    damages.      Gold    coin 

or  currency  judgment. 
§  668.     Judgment-book  to  be  kept  by  the  clerk. 
§  669.     If  a  party  die  after  verdict,  judgment  may 

be  entered,  but  not  to  be  a  lien. 
§  670.  Judgment  roll,  what  constitutes. 
§  671.     Judgment   lien,   when  it   begins   and   when 

it  expires. 
§  672.     Docket   defined.      How  kept,   and  what   to 

contain. 
§  673.    Docket  to  be  open  for  inspection  without 

charge. 


§  674. 

§  675. 
§  675a 

§  676. 

§  677. 
§  677s 
§  678. 
§  678* 

§  679. 


§  679i 
§  680. 
§  680J 


Transcript  to  be  filed  in  any  county,  and 
judgment  to  become  a  lien  there. 

Satisfaction  of  a  judgment,  how  made. 

Satisfaction  of  mortgage  recorded.  Form 
of  satisfaction. 

Undertaking  in  actions  to  set  aside  trans- 
fer of  property. 

Conditions  of  undertaking. 

Filing  and  serving  undertaking. 

Objections  to  sureties. 

Justification  of  sureties.  Approval  and 
disapproval  of  undertaking. 

Objection  because  estimated  value  in  un- 
dertaking less  than  market  value.  New 
undertaking. 

Justification  of  sureties. 

When   undertaking  becomes  effective. 

Judgment  against  sureties. 


TITLE  IX. 
EXECUTION  OF  JUDGMENT  IN  CIVIL  ACTIONS. 

Chapter  I.     Execution.     §§  6Sl-713Vj. 

II.     Proceedings  Supplemental  to   Execution.     §§  714-721. 


CHAPTER  L 

EXECUTION. 


§  681.    Within  what  time  execution  may  issue. 

§  681a.  Stay  of  execution. 

§  682.  Who  may  issue  the  execution,  its  form,  to 
whom  directed,  and  what  it  shall  re- 
quire. 

§  683.     When  made  returnable. 

§  684.  Money  judgments  and  others,  how  en- 
forced. 

§  685.    Execution  after  five  years. 

§  686.  When  execution  may  issue  against  the 
property  of  a  party  after  his  death. 

§  687.     Execution,  how  and  to  whom  issued. 

§  688.  What  liable  to  be  seized  on  execution. 
Property  not  affected  until  levy  made. 

§  689.  When  property  claimed  by  third  party. 
Indemnity. 

§  690.    What  exempt  from  execution. 


§  691.    Writ,  how  executed. 

§  692.     Notice  of  sale  under  execution,  how  given. 

§  693.  Selling  without  notice,  what  penalty  at- 
tached. 

§  694.  Sales,  how  conducted.  Neither  the  officer 
conducting  it  nor  his  deputy  to  be  a 
purchaser.  Real  and  personal  prop- 
erty, how  sold.  Judgment  debtor,  if 
present,  may  direct  order  of  sale,  and 
the  officer  shall  follow  his  directions. 

§  695.  If  purchaser  refuses  to  pay  purchase- 
money,   what  proceedings. 

§  696.  Officer  may  refuse  Euch  purchaser's  sub- 
sequent bid. 

§  697.  These  two  sections  not  to  make  officer 
liable  beyond  a  certain  amount. 


XXIV 


CONTENTS. 


§  698.  Personal  property  not  capable  of  manual 
delivery,  how  delivered  to  purchaser. 

§  699.  Personal  property  not  capable  of  manual 
delivery,  how   sold  and  delivered. 

§  700.  Sale  of  real  property.  What  purchaser 
is  substituted  to  and  acquires. 

§  700a.  When  sales  are  absolute.  What  certifi- 
cate must  show. 

§  701.  Real  property  so  sold,  by  whom  it  may 
be  redeemed. 

§  702.  When  it  may  be  redeemed,  and  redemp- 
tion-money. 

§  703.  When  judgment  debtor  or  another  re- 
demptioner   may  redeem. 

§  704.  In  cases  of  redemption,  to  whom  the  pay- 
ments are  to  be  made. 

§  705.  What  a  redemptioner  must  do  in  order  to 
redeem. 

§  706.  Until  the  expiration  of  redemption-time, 
court  may  restrain  waste  on  the  prop- 
erty.     What  considered  waste. 

§  707.     Rents  and  profits. 

§  708.  If  purchaser  of  real  property  be  evicted 
for  irregularities  in  sale,  what  he   may 


709. 
710. 

710. 

710S. 

711. 

7111. 

712. 

712i. 

713. 

713i. 


recover,  and  from  whom.  When  judg- 
ment to  be  revived.  Petition  for  the 
purpose,  how  and  by  whom  made. 

Party  who  pays  more  than  his  share  may 
compel  contribution. 

Collection  of  moneys  due  from  judgment 
debtor.      Procedure. 

Claimant  of  property  may  give  undertak- 
ing and  release  property. 

Claim  of  property.  Undertaking,  amount 
and  conditions   of. 


Undertaking,    filing 

Undertaking,    objec- 

Justification,  approval 


Claim    of    property, 
and   serving. 

Claim    of    property, 
tions  to. 

Claim  of  property, 
and  disapproval. 

Claim     of      property.      Undertaking,     esti- 
mate of  value,  and  now  undertaking. 

Claim   of   property.      Undertaking,    justifi- 
cation of  sureties. 

Claim    of    property.      Undertaking,    when 
becomes   effectual. 


CHAPTER  II. 

PEOCEEDINGS  SUPPLEMENTAL  TO  EXECUTION. 


§  714.    Debtor  required  to  answer  concerning  his 

property,  when. 
§  715.     Proceedings    to    compel   debtor   to   appear. 

In     what     cases     he     may     be     arrested. 

What  bail  may  be  given. 
§  716.     Any   debtor   of   the   judgment   debtor   may 

pay  the  latter's  creditor. 
§  717.    Examination     of     debtors     of     judgment 


debtor,  or  of  those  having  property  be- 
longing to  him. 

§  718.     Witnesses  required  to  testify. 

§  719.  Judge  may  order  property  to  be  applied 
on  execution. 

§  720.     Proceedings  upon  claim  of  another  party. 

§  721.     Disobedience  of  orders,  how  punished. 


TITLE  X. 
ACTIONS  IN  PARTICULAR  CASES. 

Chapter  L     Actions  for  Foreclosure  of  Mortgages.     §§726-729. 

II.     Actions  for  Nuisance,  Waste,  and  Willful  Trespass,  in  Certain  Cases,  on  Real 
Property.     §§  731-735. 

III.  Actions  to  Determine  Conflicting  Claims  to  Real  Property,  ami  Other  Pro- 

visions Relating  to  Actions  concerning  Real  Estate.     §§  738-751. 

IV.  Actions  for  Partition  of  Real  Property.     §§  752-801. 

V.     Actions  for  Usurpation  of  an  Office  or  a  Franchise.     §§802-810. 
YI.     Actions  against  Steamers,  Vessels,  and  Boats.     §§  813-827. 


CHAPTER  I. 
ACTIONS  FOR  FORECLOSURE  OF  MORTGAGES. 


§  726.     Proceedings  in  foreclosure  suits. 
§  727.     Surplus  money  to  be  deposited  in  court. 
§  728.     Proceedings   when   debt   secured  falls   due 
at  different  times. 


§  729.  Oath  and  undertaking  of  commissioner. 
Report  and  account  of  sale.  Compensa- 
tion of  commissioner. 


CHAPTER  IL 

ACTIONS    FOR    NUISANCE,    WASTE,    AND    WILLFUL    TRESPASS,   IN    CERTAIN 

CASES,  ON  REAL  PROPERTY. 


§  731.     Nuisance      defined.      Abatement      of.      Ac-         §  734. 

tions  instituted,  by  whom. 
§  732.     Waste,  actions  for.  §  735. 

S  733.     Trespass    for    cutting    or    carrying    away 

trees,  etc.,  actions  for. 


Measure     of     damages     in     certain     cases 

under  the  last  section. 
Damages    in    actions    for    forcible    eutry, 

etc.,  may  be  trebled. 


CONTENTS. 


XXV 


CHAPTER  III. 

ACTIONS  TO  DETERMINE   CONFLICTING   CLAIMS  TO  REAL  PROPERTY,   AND 
OTHER  PROVISIONS  RELATING  TO  ACTIONS  CONCERNING  REAL  ESTATE. 


§  738. 

§  739. 
§  740. 

§  741. 

§  742. 

§  743. 

§  744. 
§  745. 


§  752. 
S  753. 

§  754. 

§  755. 
§  756. 

§  757. 

§  758. 
§  759. 

§  760. 
§  761. 

§  762. 

§  763. 


§  764. 

§  765. 
§  766. 
§  767. 
§  768. 
§  769. 

§  770. 

§  771. 

§  772. 

§  773. 
§  774. 


§  775. 
§  776. 


Parties  to  action  to  quiet  title.  Wills 
in  evidence.      Right  to  jury  trial. 

When  plaintiff  rannot  recover  co.sts. 

Where  plaintifT'o  ri^lit  terminates  pend- 
ing suit,  what  he  may  recover. 

When  value  of  improvements  can  be  al- 
lowed as  a  set-off. 

An  order  may  be  made  to  allow  a  party 
to  survey  and  measure  the  land  in  dis- 
pute. 

Order,  what  to  contain,  and  how  served. 
If  unnecessary  injury  done,  the  party 
surveying  to  be  liable  therefor. 

A  mortgage  must  not  be  deemed  a  con- 
veyance, whatever  its  terms. 

When  court  may  grant  injunction;  dur- 
ing foreclosure  ;  after  sale  on  execution, 
before  conveyance. 


§  746.  Damages  may  be  recovered  for  injury  to 
the  possession  after  sale  and  before  de- 
livery of  possession. 

§  747.  Action  not  to  bn  prejudiced  by  aliena- 
tion pending  suit. 

§  748.  Mining  claims,  actions  concerning,  to  be 
governed  by  local  rules. 

§  749.  How  service  may  be  made  in  actions  re- 
lating to  real  property.      [Repealed.) 

§  749.  Determination  of  adverse  claims  to  real 
property.  Unknown  defendants.  Lis 
pendens. 

§750.  Summons;  service,  and  proof  of  service. 
Publication  of  summons. 

§  751.  Judgment  must  not  be  entered  by  de- 
fault. When  entered,  is  conclusive. 
Remedy  is  cumulative. 


CHAPTER  IV. 

ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY. 


Who  may  bring  actions  for  partition.  §  777. 

Interests  of  all   parties  must  be  set  forth 

in  the  complaint.  §  778. 

Lienholders    not    of   record    need    not    be 

made  parties.  §  779. 

Plaintiff  must  file  notice  of  lis  pendens.  §  780. 

Summons.      To   whom   directed,   and   must         §  781. 
contain  what. 

Unknown  parties  may  be  served  by  pub-         §  782. 
lication. 

Answer  of  defendants.       What  to  contain.  §  783. 

Rights  of  all  parties  may  be  put  in  issue         §  784. 
and  determined  in  action. 

Partial  partition.  §  785. 

Rights     of    lienholders.      Appointment     of 

referee.  §  786. 

Lienholders    must    be    notified    to    appear 

before  the  referee  appointed.  §  787. 

Partition  of  real  property.      Referees.     In 

incorporated      city.      Action     of      court.         §  788. 
Sale.     Deed.     In  case  of  death  of  party. 
Attorney's  fees.  §  789. 

Partition   must   be   according   to  rights   of 

parties.       Sale    of    undivided     interests.         §  790. 
Allotment  of  shares  of  each  party. 

Referees  must  make  a  report  of  their 
proceedings.  §  791. 

Court   many   confirm,   etc.,    report.      Judg-         §  792. 
ment  binding  on  whom. 

Judgment   not   to   affect   tenants   for   years 

to  the  whole  property.  §  793. 

Expenses  of  partition  must  be  appor- 
tioned among  the  parties.  §  794. 

A  lien  on  an  undivided  interest  of  any 
party  is  a  charge  only  on  the  share  as- 
signed to  such  party.  §  795. 

Estate  for  life  or  years  may  be  set  off 
in  a  part  of  the  property  not  sold,  when 
not  all  sold.  §  796. 

Application  of  proceeds  of  sale  of  en- 
cumbered property.  §  797. 

Party  holding  other  securities  may  be  re- 
quired first  to  e.xhaust  them.  §  798. 

Proceeds  of  sale,  disposition  of.  §  799. 

When  paid  into  court,   cause  may  be  con- 
tinued   for    determination  of    claims    of         §  800. 
parties.  §  801. 

Sales   by  referees  may  be  public  or  private. 

Court  must  direct  terms  of  sale  or  credit. 


Referees  may  take  securities  for  pur- 
chase-money. 

Tenant  whose  estate  has  been  sold  shall 
receive  compensation. 

Court  may  fix  such  compensation. 

Court  must  protect  tenants  unknown. 

Court  must  ascertain  and  secure  the  value 
of  future  contingent  or  vested  interests. 

Terms  of  sale  must  be  made  known  at 
the  time.     Lots  must  be  sold  separately. 

Who  may  not  be  purchasers. 

Referees  must  make  report  of  sale  to 
court.     Confirmation  or  rejection  of  sale. 

If  sale  confirmed,  order  must  be  made  to 
execute  conveyances. 

Proceeding  if  a  lienholder  becomes  a  pur- 
chaser. 

Conveyances  must  be  recorded,  and  will 
be  a  bar  against  parties. 

Proceeds  of  sale  belonging  to  parties  un- 
known must  be  invested  for  their  benefit. 

Investment  must  be  made  in  the  name  of 
the  clerk  of  the  county. 

When  the  interests  of  the  parties  are  as- 
certained, securities  must  be  taken  in 
their  names. 

Duties  of  the  clerk  making  investments. 

When  unequal  partition  is  ordered,  com- 
pensation may  be  adjudged  in  certain 
cases. 

The  share  of  an  infant  may  be  paid  to 
his  guardian. 

The  guardian  of  an  insane  person  may  re- 
ceive the  proceeds  of  such  party's  in- 
terest. 

Guardian  may  consent  to  partition  with- 
out action,  and  execute  releases.  [Re- 
pealed.] 

Costs  of  partition  a  lien  upon  shares  of 
parceners. 

Court,  by  consent,  may  appoint  single 
referee.      [Repealed.] 

Apportionment  of  expenses  of  litigation. 

Abstract  of  title  in  action  for  partition. 
When  cost  of,  allowed. 

Abstract,  how  made  and  verified. 

Interest  allowed  on  disbursements  made 
under  direction  of  the  court. 


i  802. 
§  803. 


§  804. 


§  805. 


CHAPTER  V. 

ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


Sire  facies  [scire  facias]  abolished. 
Action  may  be  brought  against  any  party 

usurping,  etc.,  any  office  or  franchise. 
Name  of  person  entitled   to  office  may   be 

set     forth    in     the     complaint.      If    fees 

have   been  received   by   the   usurper,    he 

may  be  arrested. 
Judgment    may    determine    the    rights    of 

both  incumbent  and  claimant. 


§  806.     When  rendered  in  favor  of  applicant. 

§  807.  Damages  may  be  recovered  by  successful 
applicant. 

§  808.  W^hen  several  persons  claim  the  same  of- 
fice, their  rights  may  be  determined  by 
a  single  action. 

§  809.  If  defendant  found  guilty,  what  judg- 
ment to  be  rendered  against  him. 

§  810.     Actions  on  information.      Undertaking. 


XXVI 


CONTENTS. 


CHAPTER  VI. 

ACTIONS  AGAINST  STEAMERS,  VESSELS,  AND  BOATS. 


§  813.     When  vessels,   etc.,   are  liable.      Their  lia- 
bilities constitute  liens.  §  822. 

§  814.    Actions,  how  brought.  §  823. 

§815.     Complaint  must  be  verified. 

§  816.     Summons  may  be  served  on  owners,   etc.,         §  824. 
of  vessels. 

§  817.    Plaintiff   may   have   such  vessel,    etc.,    at- 
tached. §  825. 

§  818.    The  clerk  must  issue  the  writ  of  attach- 
ment. 

§  819.     Such  writ  must  be  directed  to  the  sheriff.  §  826. 

§  820.     Sheriff    must    execute    such    writ    without 

delay.  §  827. 

§  821.    The  owner,  master,  etc.,  may  appear  and 


defend  such  vessel. 

Discharge  of  attachment. 

After  appearance,  attachment  may,  on 
motion,  be  discharged. 

"When  not  discharged,  such  vessel,  etc., 
may  be  sold  at  public  auction.  Ap- 
plication of  proceeds. 

Mariners  and  others  may  assert  their 
claim  for  wages,  notwithstanding  prior 
attachment. 

Proof  of  the  claims  of  mariners  and 
others. 

Sheriff's  notice  of  sale  to  contain  meas- 
urement, tonnage,  etc. 


TITLE  XL 
PROCEEDINGS  IN  JUSTICES'  COURTS. 

Chapter  I.     Place  of  Trial  of  Actions  in  Justices' Courts.     §§832-838. 

II.     Manner  of  Commencing  Actions  in  Justices'  Courts.     §§  839-850. 

III.  Pleadings  in  Justices'  Courts.     §§  851-860. 

IV.  Provisional  Remedies  in  Justices' Courts.     §§861-870. 
Article  I.     Arrest  and  Bail.     §§861-865. 

II.     Attachment.     §§  866-869. 
III.     Claim  and  Delivery  of  Personal  Property.     §  870. 
V.     Judgment  by  Default  in  Justices' Courts.     §§871,872. 
VI.     Time  of  Trial  and  Postponements  in  .Justices'  Courts.     §§  873-877. 
Vn.     Trials  in  Justices'  Courts.     §§  878-887. 
Vm.     Judgments  (Other  than  by  Default)  in  Justices'  Courts.     §§  889-900. 
IX.     Executions  from  Justices' Courts.     §§901-905. 

X.     Contempts  in  Justices'  Courts.     §§  906-910. 
XI.     Dockets  of  Justices.     §§911-918. 
XII.     General  Provisions  Relating  to  Justices'  Courts.     §§  919-926. 


CHAPTER  I. 

PLACE  OF  TRIAL  OF  ACTIONS  IN  JUSTICES'  COURTS. 


I  832.     Actions,  where  must  be  commenced. 

I  833.    Place  of  trial  may  be  changed  in  certain 

cases. 
§  834.     Limitation  on  the  right  to  change. 
§  835.     To  what  court  transferred. 


§  836.     Proceedings    after    order    changing    place 

of   trial. 
§  837.    Effect  of  an  order  changing  place  of  trial. 

[Repealed.] 
§  838.     Transfer  of  cases  to  the  superior  court. 


§  839. 

§  840. 
§  841. 
§  842. 

I  843. 
§  844. 


§  851. 
5  852. 
§  853. 
§  854. 

§  855. 


CHAPTER  11. 

MANNER  OF  COMMENCING  ACTIONS  IN  JUSTICES'  COURTS. 


Actions,  how  commenced. 

Summons  may  issue  within  a  year. 

Defendant  may  waive  summons. 

Parties  may  appear  in  person  or  by  at- 
torney. 

When   guardian   necessary,  how  appointed. 

Summons,  how  issued,  directed,  and  what 
to  contain. 


§  845.    Time  for  appearance  of  defendant. 

§  846.     Alias  summons. 

§  847.     Same. 

§  848.    Service  of  summons  outside  of  county. 

§  849.     Summons,   by  whom   and  how   served  and 

returned. 
§  850.    Notice  of  hearing.   Form.   Service.   Service 

by  mail.  Docket  entries. 


CHAPTER  III. 

PLEADINGS  IN  JUSTICES'  COURTS. 


Form  of  pleadings. 

Pleadings  in  justices'  courts. 

Complaint  defined. 

When  demurrer  to  complaint  may  be  put 

in. 
Answer,  what  to  contain. 


§  856.  If  the  defendant  omit  to  set  up  counter- 
claim. 

§  857.    When  plaintiff  may  demur  to  answer. 

§  858.     Proceedings  on  demurrer. 

S  859.     Amendment  of  pleadings. 

S  860.  Answer  or  demurrer  to  amended  plead- 
ings. 


CONTENTS. 


XXVU 


CHAPTER  IV. 

PROVISIONAL  REMEDIES  IN  JUSTICES'  COURTS. 


Article  I.     Arrest  and  Bail.     §§  861-8G5. 
II.     Attachment.     §§  8G6-869. 
III.     Claim  and  Delivery  of  Personal  Property. 


§  870. 


ARTICLE  I. 
ARREST  AND  BAIL. 


8  861.     Ordor  of  arrost.   and   arrest  of  defendant. 
§  862.     Affidavit    and    undertaking    for    order    of 

arrest. 
§  863.     A   defendant   arrested    must   be   taken   be- 


fore the  justice  immediately. 

S  864.    The  officer  must  give  notice  to  the  plain- 
tiff of  arrest. 

§  865.     The  oflicur  must  detain  the  defendant. 


ARTICLE  n. 

ATTACHMENT, 


§  866.    Issue  of  writ  of  attachment. 

§  807.     Attachment,  undertaking  on.       Exceptions 

to  sureties. 
§  868.    Writ  of  attachment,  substance  of.    Officer 


may    take    an    nndertakinif    Instead    of 
levying. 
§  869.     Certain    provisions    apply    to    all    attach- 
ments in  justices'  courts. 


ARTICLE  III. 
CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

S  870.    How  claim  and  delivery  enforced. 


S  871. 


S  873. 

§  874. 


§  875. 
§  876. 


CHAPTER  V. 

JUDGMENT  BY  DEFAULT  IN  JUSTICES'  COURTS. 


Judgment    when    defendant    fails    to    ap- 
pear. 


§  872.    Judgment  against  defendant  on  demurrer. 


CHAPTER  VI. 

TIME  OF  TRIAL  AND  POSTPONEMENTS  IN  JUSTICES'  COURTS. 


Time  when  trial  must  be  commenced. 
When  court  may,  of  its  own  motion,  post- 
pone trial. 
Postponement  by  consent. 
Postponement      upon      application      of      a 


party. 
§  877.     No    continuance    for    more    than   ten    days 
to    bo    granted,     unless    upon    filing    of 
undertaking. 


CHAPTER  VII. 
TRIALS  IN  JUSTICES'  COURTS. 


§  878.  Issue  defined,  and  the  different  kinds. 

§  879.  Issue  of  law,  how  raised. 

I  880.  Issue  of  fact,  how  raised. 

§  881.  Issue  of  law,  how  tried. 

§  882.  Issue  of  fact,  how  tried. 

§  883.  Jury,  how  waivad. 


§  884.  Either  party  failing  to  appear,  trial  may 
proceed  at  request  of  other  party. 

§  885.     Challenges  to  jurors. 

I  886.     Manner  of  pleading  a  written  instrument. 

I  887.  Complaint,  when  accompanying  instru- 
ment deemed  genuine. 


§  889. 
§  890. 

§  891. 
$  892. 
§  893. 


§  894. 


CHAPTER  VIII. 

JUDGMENTS  (OTHER  THAN  BY  DEFAULT)  IN  JUSTICES'  COURTS. 


Judgment  by  confession. 

Judgment   of  dismissal   entered  in  certain 

cases  without  prejudice.  §  895. 

Judgment  upon  verdict.  §  896. 

Entry  of  judgment  in  thirty  days.  §  897. 

Judgment.       Form.       What     must     state,  §  898. 
where     defendant     subject     to     arrest. 

Service   and  entry.  S  899. 

If  the  sum  found  due  exceeds  the  juris-  S  900. 


diction  of  the  justice,  the  excess  may 

be  remitted. 
Offer  to  compromise  before  trial. 
Costs  may  be  included  in  the  judgment. 
Abstract  of  judgment. 
Abstract    may    be    filed    and    docketed    in 

superior  court. 
Effect  of  docketing. 
Judgment  no  lien  unless  recorded. 


XXVlll 


CONTENTS. 


CHAPTER  IX. 

EXECUTIONS   FROM   JUSTICES'   COURTS. 


§  901.     Execution   may   issue   at   any  time   within 

five   years. 
§  901a.  Stay  of  e,\ecution  of  judgment. 
§  902.    Exe'cution,  contents  of. 


§  903.     Renewal  of  execution. 

§  904.     Duty  of  officer  receiving  execution. 

§  905.    Proceedings   supplementary   to   execution. 


§  911. 
§  912. 


§  913. 
§  914. 


§  915. 


CHAPTER  X. 

CONTEMPTS  IN  JUSTICES'  COURTS. 


906.  Contempts  a  justice  may  punish  for. 

907.  Proceedings  for  contempts. 

908.  Same. 


§  909.     Punishments  for  contempts. 
§  910.    The    conviction    must    be    entered    in    the 
docket. 


CHAPTER  XI. 

DOCKETS  OF  JUSTICES. 


Docket,  what  to  contain. 

Entries   therein   prima   facie    evidence    of 

the  fact. 
An  index  to  the  docket  must  be  kept. 
Dockets   must   be   delivered    by   justice   to 

his  successor,  or  to  county  clerk. 
Proceedings    when    office    becomes    vacant, 

and  before  a  successor  is  appointed. 


§  916.  A  justice  may  issue  execution  or  other 
process  upon  the  docket  of  his  prede- 
cessor. 

§  917.  Successor  of  a  justice,  who  shall  be 
deemed. 

§  918.  Two  justices  deemed  successors,  superior 
court  shall  designate  one. 


CHAPTER  XII. 

GENERAL  PROVISIONS   RELATING  TO  JUSTICES'   COURTS. 


§  919.     Justices    may    issue    subpoenas    and    final 

process  to  any  part  of  the  county.  §  923. 

§  920.    Blanks  must  be  filled  in  all  papers  issued         §  924. 
bv  a  justice,  except  subpoenas.  8  925. 

§  921.    Justices    to    receive    all    moneys    collected 

and  pav  same  to  parties.  §  S26. 

§  922.     In    case    of   disability    of   justice,    another 


justice  may  attend  on  his  behalf. 
Justices    may    require    security    for    costs. 
Who  entitled  to  costs.     Attorney's  fee. 
What    provisions     of    code    applicable    to 

justices'  courts. 
Deposit  in  lieu  of  undertaking. 


TITLE  XXL 
PROCEEDINGS    IN   CIVIL   ACTIONS    IN    POLICE    COURTS. 


§  929.     How  commenced. 

I  930.     Summons  must  isKUe  on  filing  complaint. 
§  931.     Defendant    may    plead    orally    or    in   writ- 
ing. 


932.  Trial  by  jury,   when  defendant  is  entitled 

to. 

933.  Proceedings    to    be    conducted    as    in   jus- 

tices' courts. 


TITLE  XIIL 

APPEALS   IN   CIVIL   ACTIONS. 

Chapter  I.  Appeals  in  General.     §§936-959. 

II.  Appeals  to  Supreme  Court.     §§  963-971. 

III.  Appeals  to  Superior  Courts.     §§  974-981. 

IV.  Appeals  from  Probate  Courts.      [Repealed.] 
V.  Appeals  to  County  Courts.     [Repealed.] 


CHAPTER  I. 
APPEALS  IN  GENERAL. 


§  936.    Judgment  and  orders  may  be  reviewed. 

I  937.     Orders  made  out  of  court,  without  notice, 

may  be  reviewed  by  the  jiidee. 
S  938.     Party    aggrieved    may    appeal.      Names    of 

parties. 
§  939.     Within  what  time  appeal  may  be  taken. 
§  940.     Appeal,     how  taken. 
§  941.     Undertaking  or  deposit  on  appeal. 
§  941a.  Appeals.      Alternative  method. 
5  941b.  Notice  of  appeal,  what  to  contain. 
5  941c.  Effect  of  appeal. 
(  942.     Undertaking     on     appeal     from     a     money 

judgment. 


§  943.  Appeal  from  a  judgment  for  deliverj-  of 
documents. 

§  944.  Appeal  from  a  judgment  directing  execu- 
tion of  a  conveyance,  etc. 

§  945.  Undertaking  on  appeal  concerning  real 
property. 

§  946.  Release  of  property  under  levy,  on  ap- 
peal.     Attachment  not  continued. 

§  947.  Undertaking  may  be  in  one  instrument 
or    several. 

§  948.  Justification  of  sureties  on  undertakings 
on  api)r-nl, 

§  949.     Undertakings  in  cases  not  specified. 


CONTENTS. 


XXIX 


5  950.  Wliat  papers  to  ho  used  on  appeal  from 
thi'  .iuil{;infiit. 

§  951.  What  papers  used  on  appeals  from  ordora, 
e.xecpt  orders  grantiu;,'  new  trials. 

§  952.  What  papers  to  he  used  on  appeal  from 
an   order   Ki'aiitinK  a   new   trial. 

§  953.      Copies    and    undertakings,    how    certified. 

§  953a.  Preparation  of  papers  on  appeal.  No- 
tice  to  county  clerk. 

§  953h.    Payment  of  cost  of  transcript. 

§  953c.   Clerk    to    transmit    the    prepared    record 


on  appeal. 
§  954.     ■\Vlien  an  appeal  may  be  dismissed.       AVhen 
not. 
Effect  of  dismissal. 

What    may    be    reviewed    on    appeal    from 
judfiincnt. 

§  957.     Remedial   powers  of  an  appellate  court. 
§  958.     On   jud^rment    on    appeal,    remittitur   must 
be    certified    to    the    clerk    of    the    court 
below. 
Provisions   of   this   chapter   not   applicable 
to  appeals  to  superior  courts. 


5  955 
§  956 


§  959. 


CHAPTER  II. 

APPEALS  TO  SUPREME  COURT. 


§  963.      Cases  in  which  an  appeal  may  be  taken 

from  superior  court. 
§964.      Appeals;     in    what    cases    appealed    from 

.iustices'   courts. 
§  965.      .\ppeals  by  executors  and  administrators. 
§  966.      Acts     of    executors     and     administrators, 

where  appointment  vacated. 
§  967,  §  968.      [None  so  numbered.] 


§  969.  Appeal  from  probate  court,  when  may  be 
taken.      [Repealed.] 

§  970.  E.\ecutors  and  administrators  not  re- 
quired to  give  undertaking  on  appeal. 
[Repealed.] 

§  971.  Acts  of  acting  administrator,  etc.,  not 
invalidated  by  reversal  of  order  ap- 
pointing him.       [Repealed.] 


CHAPTER  III. 

APPEALS  TO  SUPERIOR  COURTS. 


§  974.     Appeal     from     judgment     of     justice's     or 

police   court. 
§  975.     Appeal    on    questions   of  law.      Statement. 
§  976.     Appeal   on   questions   of   fact,    or   law    and 

fact. 
§  977.    Transmission  of  papers  to  appellate  court. 


§  978.     Undertaking  on  appeal. 

§  978a.  Filing  of  undertaking.      Exception   to   and 

.justification   of   sureti's. 
§  979.     Stay  of  proceedings  on  filing  undertaking. 
S  980.     Powers  of  superior  court  on  appeal. 
§  981.    Fees   payable   on   filing   appeal. 


CHAPTER  IV. 

APPEALS  FROM  PROBATE  COURTS. 

[Repealed] 

CHAPTER  V. 

APPEALS  TO  COUNTY  COURTS. 

[Repealed] 


TITLE  XIV. 
MISCELLANEOUS   PROVISIONS. 

Chapter  I.     Proceedings  against  Joint  Debtors.     §§989-994. 


II.  Offer  of  Defendant  to  Comiiromise.     §  99/ 

III.  Inspection  of  Writings.      §  lOUO. 

IV.  Motions  and  Orders.     §§1003-1007. 

V.  Notices,  and  Filing  and  Service  of  Papers. 

VI.  Costs.     §§  1021-1039. 

VII.  General  Provisions.     §§1045-1059. 


§§  1010-1019. 


CHAPTER  L 

PROCEEDINGS  AGAINST  JOINT  DEBTORS. 


§  989.  Parties  not  summoned  in  action  on  joint 
contract  may  be  summoned  after  judg- 
ment. 

S  990.  Summons  in  that  case,  what  to  contain, 
and  how  served. 


§  991.  Affidavit  to  accompany  summons. 

S  992.  Answer.       What  it  may  contain. 

§  993.  What    constitute    the  pleadings  in  the  case. 

§  994.  Issues,  how  tried.    Verdict,  what  to  be. 


CHAPTER  II. 

OFFER  OF  DEFENDANT  TO  COMPROMISE. 
§  997.     Proceedings  on  offer  of  the  defendant  to  compromise  after  suit  brought. 


•yy^ 


CONTENTS. 


CHAPTER  III. 

INSPECTION  OF  WRITINGS. 
{  1000.    A  party  may  demand  inspection  and  copy  of  a  book,  paper,  etc. 


CHAPTER  IV. 

MOTIONS  AND  ORDERS. 


S  1003.  Order  and  motion  defined. 

I  1004.  Motions  and  oriiers.    where  made. 

J  1005.  Notice  of  motion.      When  must  be  given. 

S  1006.  Transfer  of  motions  and  orders  to  show 


cause. 
§  1007.    Order    for   payment    of    money,   how   en- 
forced. 


CHAPTER  V. 

NOTICES,  AND  FILING  AND  SERVICE  OF  PAPERS. 


5  1010.  Notices  and  papers,  how  served. 

5  1011.  When  and  how  served. 

5  1012.  Service  by  mail.  when. 

§  1013.  Service  by  mail_,  how. 

I  1014.  Appearance.    Notices  after  appearance. 

§  1015.  Service  on  non-residents. 

i  1016.  Preceding    provisions    not    to    apply    to 


proceeding    to    bring    party    into    con- 
tempt. 
§  1017.     Service  by  telegraph. 
§  1018.     [No  section  with  this  number.] 
§  1019.     Service    of    pleadings    in    action    for    di- 
vorce for  adultery. 


CHAPTER  VI. 

COSTS. 


i  1021.    Compensation     of     attorneys.      Costs     to         §  1030. 

parties. 
5  1022.     When  allowed  of  course  to  plaintiff.  §  1031. 

S  1023.     Several     actions     brought     on     a     single 

cause  of  action  can  carry  costs  in  but         §  1032. 

one.  §  1033. 

5  1024.     Defendant's    costs    must    be    allowed    of         §  1034. 

course,  in  certain  cases. 
{  1025.     Costs,     when    in    the    discretion    of    the         §  1035. 

court. 
{  1026.     When    the    several    defendants    are    not         §  1036. 

united   in  interest,    costs   may  be   sev- 
ered. 
5  1027.     Costs  on  appeal  §1037. 

5  1028.     Referee's  fees. 
i  1029.     Continuance,    costs    may    be    imposed    as         §  1038. 

condition  of.  §  1039. 


Costs  when  a  tender  is  made  before  suit 
brought. 

Costs  in  action  by  or  against  an  admin- 
istrator, etc. 

Costs  in  a  review  other  than  by  appeal. 

riling  of  and  affidavit  to  bill  of  costs. 

Costs  on  appeal,  how  claimed  and  re- 
covered. 

Interest  and  costs  must  be  included  by 
the  clerk  in  the  judgment. 

When  plaintiff  is  a  non-resident  or  for- 
eign corporation,  defendant  may  re- 
quire security  for  costs. 

If  such  security  be  not  given,  the  action 
may  be  dismissed. 

Costs  when  state  is  a  party. 

Costs  when  county  is  a  party. 


CHAPTER  VII. 
GENERAL  PROVISIONS. 


5  1045.    Lost  papers,  how  supplied. 

{  1046.  Papers  without  the  title  of  the  action, 
or  with  defective  title,  may  be  valid. 

i  1046a.   Filing  of  papers  nunc  pro  tunc. 

S  1047.  Successive  actions  on  the  same  con- 
tract, etc. 

i  1048.     Consolidation  of  several  actions  into  one. 

{  1049.     Actions,  when  deemed  pending. 

I  1050.  Action  to  determine  adverse  claims,  and 
by  sureties. 

I  1051.  Testimony,  when  to  be  taken  by  the 
clerk. 

i  1052.  The  clerk  must  keep  a  register  of  ac- 
tions. 

]  1053.  Two  of  three  referees,  etc.,  may  do  any 
act. 


§  1054.    Time  within  which  an  act  is  to  be  done 

may  be  extended. 
§  1055.     Action  asainst  officer  for  official  acts. 
§  1056.     Corporations     may     become     sureties     on 

undertakings  and  bonds. 
§  1057.     Undertakings    mentioned    in    this     code, 

requisites  of. 
§  1057a.  Justification    by     corporate     security    on 

bonds.      Procedure.     County  clerk  to  is- 
sue certificate.    Pee. 
§  1058.     People    of    state     not    required    to    give 

bonds  when  state  is  a  party. 
S  1059.     Surety    on    appeal    substituted    to    rights 

of  judgment  creditor. 


THE 

CODE  OF  CIVIL  PROCEDUEE 


OF   THK 


STATE  OF  CALIFORNIA. 

IN  POUR  PARTS. 


Title  of  Act.     §  1. 

Preliminary  Provisions.     §§  2-32. 

Part  I. 

Courts  of  Justice.     §§  33-304. 

II. 

Civil  Actions.     §§307-1059. 

III. 

Special  Proceedings  of  a  Civil  Nature. 

IV. 

Evidence.     §§  1823-2104. 

1  Fair.— 

-1                                      (1) 

§§  1063-1822f. 


THE 


CODE  OF  CIVIL  PROCEDURE 


STATE  OF  CALIFORNIA. 

AN  ACT 
TO  ESTABLISH  A  CODE  OF  CIVIL  PROCEDURE. 

[Approved  March  11,  1872.] 

The  People  of  tlie  State  of  California,  represented  in  Senute  and  Assembly,  do  enact  as 

follows: 


TITLE  OF  ACT. 

§   1.     Title  and   division  of  this  volume. 

§  1.  Title  and  division  of  this  volume.  This  act  shall  be  knoAvn  as  The 
Code  of  Civil  Procedure  of  California,  and  is  divided  into  four  parts,  as  fol- 
lows : 

Part  I.  Of  Courts  of  Justice. 

II.  Of  Civil  Actions. 

III.  Of  Special  Proceedings  of  a  Civil  Nature. 

IV.  Of  Evidence. 


This  act,   how  cited.     See  post,  §  19. 
Construction  of  the  codes  and  of  their  various 
sections.    See  Pol.  Code,  §§  4478  et  seq. 

Legislation  §  1.    Enacted  March  11,  1872. 

Constitutionality  of  statute  embracing  more  than 
one  subject.     See  note   Gl   Am.   Dee.   337. 

Statutes  embracing  subjects  not  embraced  in 
title.    See  note  69  Am.  Dec.   648. 


When  title  embraces  more  than  one  subject, 
and  what  it  may  Include.  See  note  79  Am.  St. 
Rep.  456. 

Construction  of  constitutional  provisions  rela- 
tive to  titles  of  statutes.  See  note  1  Ann.  Cas. 
584. 

Single  statute  embodying  title  of  statute  or 
compilation  of  laws  as  affected  by  prohibition 
against  plurality  of  subjects.  See  note  55  L.  R.  A. 
840. 


PRELIMINAEY  PROVISIONS. 


§  2. 

§  3. 

§  4. 

§  5. 

§  6. 
§  7. 
§  8. 
§  9. 
§  10. 
§  11. 
§  12. 
§  13. 
§  14. 
§  15. 
§  16. 
5  17. 


When  this  codes  takes  effect.  §  18. 
Not  retroactive. 

Rule  of  construction  of  this  code.  §  19. 
Provisions    similar    to    existing    laws,    how         §  20. 

construed.  §  21. 

Tenure  of  offices  preserved.  §  22. 
Construction  of  repeal  as  to  certain  offices.        §  23. 

Actions,  etc.,  not  affected  by  this  code.  §  24. 

Limitations  shall  continue  to  run.  §  25. 
Holidays. 

Same.  "  §  26. 

Computation   of   time.  §  27. 

Certain  acts  not  to  be  done  on  holidays.  §  28. 

'•Seal"  defined.  §  29. 

.Joint  authority.  §  30. 

Words  and  phrases.  §31. 

Certain  terms  used  in  this  code  defined.  §  32. 


Statutes,  etc.,  inconsistent  with  code  re- 
pealed. 

This  act,  how  cited,  enumerated,  etc. 

Judicial  remedies  defined. 

Division  of  judicial  remedies. 

Action  defined. 

Special  proceeding  defined. 

Division  of  actions. 

Civil  actions  arise  out  of  obligations  or 
injuries. 

Obligation  defined. 

Division  of  injuries. 

Injuries  to  property. 

Injuries  to  the  person. 

Civil  action,  by  whom  prosecuted. 

Criminal  actions. 

Civil  and  criminal  remedies  not  merged. 


§  2.     When  this  code  takes  effect.     This  code  takes  effect  at  twelve  o  'clock 
noon,  on  the  first  day  of  January-,  eighteen  hundred  and  seventy-three. 

(3) 


§§3,4 


PRELIMINARY   PROVISIONS. 


4 


Effect     of     codes     generally.     Ses     Pol.     Code, 

§§  4478    et    seq. 

Similar  provisions.  See  Civ.  Code,  §  2 ;  Pol. 
Code,  §  2;   Pen.   Code,  §  2. 

Legislation  §  2.    Enacted  March  11,  1873. 

Laws  passed  at  the  same  session  at  which 
the  codes  were  adopted  prevail  over  the 
codes  (Babcock  v.  Goodrich,  47  Cal.  4S8; 
Ex  parte  Newton,  53  Cal.  571);  but  §  3891 


of  the  Political  Code  declares  that  provis- 
ions concerning  revenue  are  to  be  con- 
sidered as  if  passed  and  approved  on  the 
last  day  of  the  session,  and  all  acts  passed 
during  the  session  are  repealed,  except 
acts  amendatory  of  or  carrying  into  effect 
the  codes.  Mitchell  v.  Crosby,  46  Cal.  97; 
Kosasco  v.  Tuolumne  County,  143  Cal. 
482;  77  Pac.  148. 


§  3.     Not  retroactive.     No  part  of  it  is  retroactive,  unless  expressly  so 
declared. 

Moore,  106  Cal.  673;  39  Pac.  1071;  Cook  v. 
Cockins,  117  Cal.  140;  48  Pac.  1025. 
Amendments  are  adjusted  to  the  original 
enactments,  so  that,  in  conjunction,  they 
shall  form  a  perfect  code;  and  the  portion 
of  the  amended  section  left  unchanged 
must  be  considered  as  having  been  the 
law  continuously,  with  the  new  or  changed 
portions  as  new  enactments  that  shall  not 
be  retroactive.  Central  Pacific  E.  R.  Co.  v. 
Shackelford,  63  Cal.  261.  An  amendment 
merely  shortening  the  time  within  which 
an  act  may  be  done,  and  affecting  only  the 
remedy,  leaving  an  adequate  and  avail- 
able remedy,  is  in  no  sense  retroactive 
(Kerckhoft'-Cuzner  Mill  etc.  Co.  v.  01m- 
stead,  85  Cal.  80;  24  Pac.  648);  but  an 
amendment  cannot  change  the  rights  or 
obligations  of  the  parties,  nor  extend  the 
time  for  the  commencement  of  an  action. 
Allen  v.  Allen,  95  Cal.  184;  16  L.  R.  A. 
646;  30  Pac.  213.  Registry  laws  will  not 
be  given  a  retroactive  effect;  and  an 
amendment  authorizing  the  recordation 
will  not  operate  as  a  constructive  notice 
of  an  instrument,  where  it  was  not  valid, 
and  did  not  have  that  effect,  when  exe- 
cuted. Bank  of  Ukiah  v.  Moore,  106  Cal. 
673;  39  Pac.  1071.  A  statute  prescribing 
not  merely  a  rule  of  evidence,  but  a  rule 
of  property,  cannot  be  given  a  retroactive 
effect.  Cook  v.  Cockius,  117  Cal.  140;  48 
Pac.    1025. 

Construction  of  Practice  Act.  The  Prac- 
tice Act  was  given  a  like  construction. 
People  V.  Hays,  4  Cal.  127;  Scale  v.  Mitch- 
ell, 5  Cal.  402;  Stockton  etc.  R.  R.  Co.  v. 
Common  Council,  41  Cal.  147. 

Legislative  expression.  What  is  an  ex- 
press declaration  of  an  intention  to  give  a 
retroactive  operation  may  rest  on  con- 
struction. Dunne  v.  Mastick,  50  Cal.  244; 
Tulley  V.  Tranor,  53  Cal.  274;  Cummings 
v.  Howard,  63  Cal.  503. 

Ex  post  facto  law.  See  note  to  Hart  v. 
State,   88  Am.   Dec.  752. 


Effect  on  pending  proceedings  and  vested 
rights.    See  post,  §  8. 

Effect  of  code  on  existing  statutes.  See  post, 
§  18. 

Similar  provisions.  See  Pen.  Code,  §  3 ;  Pol. 
Code,  §  3;    Civ.   Code,  §  3. 

Legislation  §  3.      Enacted  March  11,  1873. 

Retrospective  law,  what  is.  Justice 
Story,  in  Society  v.  Wheeler,  2  Gall.  (U.  S.) 
139,  Fed.  Cas.  No.  13156,  declares,  "Every 
statute  which  takes  away  or  impairs 
vested  rights  acquired  under  existing  laws, 
or  creates  a  new  obligation,  imposes  a 
new  duty,  or  attaches  a  new  disability,  in 
respect  to  transactions  or  considerations 
already  past,  must  be  deemed  retrospec- 
tive." See  also  note  to  American  Mercan- 
tile Exchange  v.  Blunt,  120  Am.  St.  Rep. 
468. 

Remedial  statutes  should  be  given  a  ret- 
rospective effect,  where  a  repealing  or 
amending  statute  has  no  saving  clause, 
and  such  a  construction  is  necessary  to 
preserve  the  rights  of  the  parties  in  pend- 
ing actions.    Bensley  v.  Ellis,  39  Cal.  309. 

Changing  procedure.  Where  the  change 
affects  merely  the  remedy,  and  the 
method  of  enforcing  the  right,  not  the 
right  itself,  it  is  within  the  control  of  the 
legislature.  Oullahan  v.  Sweeney,  79  Cal. 
537;  12  Am.  St.  Rep.  172;  21  Pac.  960. 
When  a  legal  liability  exists,  a  remedy 
may  be  given  for  such  liability,  where 
none  existed  before.  Chapman  v.  State, 
104  Cal.  690;  43  Am.  St.  Rep.  158;  38  Pac. 
457.  This  principle  is  equally  applicable 
to  criminal  cases:  an  offender  may  be 
tried  by  a  procedure  which  did  not  exist 
when  the  offense  was  committed,  provided, 
the  act  was,  at  the  time  of  its  commission, 
punishable  lay  law  (Ex  parte  Gutierrez,  45 
Cal.  429;  People  v.  Mortimer,  46  Cal.  114; 
People  V.  Soto,  49  Cal.  67);  and  this 
change  may  be  made  to  apply  to  pending 
actions,  where  the  time  within  which  an 
act  may  be  done  is  extended  (Bensley  v. 
Ellis,  39  Cal.  309),  or  shortened.  Kerck- 
hoff-Cuzner  Mill  etc.  Co.  v.  Olmstead,  85 
Cal.  80;  24  Pac.  648. 

Construction  of  amendments  to  codes. 
This  provision  also  aU'ects  amendments  to 
the  original  code.  Hibernia  Sav.  &  L. 
Soc.  V.  Hayes,  56  Cal.  297;  Sharp  v.  Blank- 
enship,    59    Cal.    288;    Bank    of    Ukiah    v. 


CODE  COMMISSIONERS'  NOTE.  It  is  a  rule 
of  construction  founded  on  the  principles  of  gea- 
eral  jurisprudence  that  a  statute  is  not  to  have 
a  retroactive  effect  beyond  the  time  of  its  enact- 
ment. See  the  very  elaborate  and  learned  opinion 
of  Justice  Wells,  an4  also  the  dissenting  opinion 
of  Justice  Heydenfeldt,  in  People  v.  Hays,  4  Cal. 
127,  and  numerous  cases  there  cited.  See  Civ. 
Code,  §  3,   and  note. 


§  4.     Rule  of  construction  of  this  code.     The  rule  of  the  common  lav/,  that 
statutes  in  derogation  thereof  are  to  be  strictly  construed,  has  no  applica- 


RULE  OF  CONSTRUCTION  OF  THIS  CODE. 


§4 


tion  to  this  code.  The  code  estal)lishe.s  the  law  of  tliis  state  respectinf];  the 
subjects  to  which  it  rehites,  and  its  provisions  and  all  proceedin<,^s  under  it 
are  to  be  liberally  construed,  with  a  view  to  effect  its  objects  and  to  pro- 
mote justice. 

736),  in  the  same  manner  as  if  they  were 
new  and  original  pieces  of  legislation. 
Donlon  v.  Jewett,  88  Cal.  .530;  26  Pac.  370. 
The  repeal  of  an  act  effects  the  repeal  of 
an  act  amendatory  of  the  act  repealed. 
Hemstreet  v.  Wassum,  49  Cal.  273.  Under 
tlie  code,  statutes  remedial  in  their  nature 
are  to  be  liberally  construed  in  favor  of 
the  remedy  (Estate  of  McManus,  87  Cal. 
292;  22  Am.  St.  Rep.  250;  10  L.  R.  A.  567; 
25  Pac.  413;  Buck  v.  Eureka,  97  Cal.  135; 

31  Pac.  845;  Br-i'ckett  v.  Banegas,  99  Cal. 
623;  34  Pac.  344;  Continental  Building  etc. 
Ass'n  V.  Hutton,  144  Cal.  609;  78  Pac.  21; 
Union  Lumber  Co.  v.  Simon,  150  Cal.  751;' 
89  Pac.  1077,  1081;  Malone  v.  Big  Flat 
Gravel  Min.  Co.,  93  Cal.  384;  28  Pac.  1063; 
Stonesifer  v.  Kilburn,  94  Cal.  33;  29  Pac. 
332;  Melde  v.  Reynolds,  129  Cal.  308;  61 
Pac.  932),  even  where  it  inflicts  a  penalty. 
Burns  v.  Superior  Court,  140  Cal.  1;  73 
Pac.  597.  Courts  should  always  look  to 
the  substance  of  the  thing,  rather  than  to 
its  name  (Ex  parte  Spencer,  83  Cal.  460; 
17  Am.  St.  Rep.  266;  23  Pac.  395);  and 
each  provision  should  be  referred  to  the 
object  for  which  it  was  intended  or  to 
which  it  relates.  Holbrook  v.  McCarthy, 
61  Cal.  216;  Ex  parte  Reis,  64  Cal.  233;  30 
Pac.  806;  Auzerais  v.  Naglee,  74  Cal.  60; 
15  Pac.  371.  The  statute  should  be  con- 
strued with  the  plain  legislative  intent. 
Blythe  v.  Ayres,  96  Cal.  532;  19  L.  R.  A. 
40;  31  Pac.  915. 

Rules  of  procedure.  Except  in  matters 
which  are  jurisdictional,  rules  of  proce- 
dure should  be  liberally  construed  (Smith 
V.  Whittier,  95  Cal.  279;  30  Pac.  529; 
Buck  v.  Eureka,  97  Cal.  135;  31  Pac.  845); 
and  not  given  a  narrow  or  technical  con- 
struction (Howell  V.  Budd,  91  Cal.  342;  27 
Pac.  747),  but  should  be  made  to  servo 
their  true  purpose,  of  expediting  the  dis- 
position of  causes  upon  their  merits,  rather 
than  of  obstructing  the  action  of  the 
court.    Flagg   v.   Puterbaugh,    98  Cal.  134; 

32  Pac.  863;  Warner  v.  F.  Thomas  etc. 
Works,  105  Cal.  409;  38  Pac.  960.  A  lib- 
eral construction  should  be  given  to  §  1238, 
post  (San  Joaquin  etc.  Irrigation  Co.  v. 
Stevinson,  164  Cal.  221;  128  Pac.  924), 
and  also  to  §  473,  post.  Palmer  &  Rey  v. 
Barclay,  92  Cal.  199;  28  Pac.  226.  The 
rule  that  statutes  in  derogation  of  the 
common  law  are  to  be  strictly  construed 
has  no  application,  to  the  taking  of  depo- 
sitions. Bollinger  v.  Bollinger,  153  Cal. 
190;  94  Pac.  770.  It  will  be  assumed, 
where  necessary  to  give  effect  to  a  pro- 
ceeding, that  the  party  in  interest  will  act 
in  a  lawful  ratlier  than  in  an  unlawful 
manner.  Clark  v.  Palmer,  90  Cal.  504;  27 
Pac.  375. 


Construction  of  codes  with  relation  to  each 
other,  and  reconciling  conflicts  between  titles, 
chapters,  and  articles.  Sec  Pol.  Code,  §§  44H0 
et   sell. 

Rules   for   construction  of  statutes.     See   post, 

§§   lt<.'>S,    1S,")9,    ISlUi. 

Similar  provisions.  See  Pen.  Code,  §4;  Pol. 
Code,  §  4;  Civ.  Code,  §  4. 

Legislation  8  4.     Enacted  March  11,  1872. 

Constitutional   provisions    part    of    law. 

The  law  of  the  state  is  contained  in  the 
constitution  as  w'ell  as  in  the  codes.  Pasa- 
dena v.  Superior  Court,  157  Cal.  781;  109 
Pac.  620. 

Strict  construction.  The  common-law 
rule,  that  statutes  in  derogation  thereof 
should  have  a  strict  construction,  was 
adopted  in  this  state  when  the  common- 
law  rule  was  made  the  rule  of  decision  in 
1850,  and  prevailed  until  the  adoption  of 
the  codes  (Hotaling  v.  Cronise,  2  Cal. 
63;  People  v.  Buster,  II  Cal.  215;  Turner 
V.  Tuolumne  County  Water  Co.,  25  Cal. 
397;  1  Morrison's  Min.  Rep.  107;  Pina  v. 
Peck,  31  Cal.  359),  when  this  rule  of  con- 
struction was  changed  (Blythe  v.  Ayres, 
96  Cal.  532;  19  L.  R.  A.  40;  31  Pac.  915; 
Robinson  v.  Southern  Pacific  Co.,  105  Cal. 
526;  28  L.  R.  A.  773;  38  Pac:  94,  722),  and 
the  law  of  the  subject  to  which  it  relates 
established  (Canavan  v.  Gray,  64  Cal.  7; 
27  Pac.  788;  Smith  v.  McDermott,  93  Cal. 
421;  29  Pac.  34;  Miller  v.  Carr,  116  Cal. 
378;  58  Am.  St.  Rep.  180;  48  Pac.  324). 

Liberal  construction.  This  provision,  re- 
quiring the  code  to  be  given  a  liberal  con- 
struction, is  equivalent  to  a  command  to 
the  courts  (Plummer  v.  Brown,  64  Cal. 
429;  1  Pac.  703;  Bewick  v.  Muir,  83  Cal. 
368;  23  Pac.  389);  but,  while  it  applies  to 
the  codes,  it  has  no  application  to  the  stat- 
utes of  the  state,  as  such  statutes,  when 
in  derogation  of  the  common  law,  are  to 
be  strictlv  constiiied  (Pina  v.  Peck,  31 
Cal.  359;  Estate  of  Jessup,  81  Cal.  408;  6 
L.  R.  A.  594;  21  Pac.  976;  22  Pac.  742, 
1028),  where  such  construction  does  not 
favor  the  imposition  of  a  penalty  or  for- 
feiture. Snell  V.  Bradbury,  139  Cal.  379; 
73  Pac.  150.  Provisions  affirmative  of  the 
common  law  are  to  be  interpreted  as  are 
the  rules  of  the  common  law  (Baker  v. 
Baker,  13  Cal.  95;  Emeric  v.  Alvarado,  90 
Cal.  444;  27  Pac.  356);  but  those  in  dero- 
gation of  the  common  law,  or  out  of  its 
course,  are  to  be  construed  strictly  (Hotal- 
ing V.  Cronise,  2  Cal.  60);  and  re-en- 
acted statutes  are  to  be  construed  in  ac- 
cordance with  the  principles  in  force  at 
the  time  of  the  enactment  (Blvthe  v. 
Ayres,  96  Cal.  532;  19  L.  R.  A.  40;'31  Pac. 
915;  Dixon  v.  Pluns,  98  Cal.  384;  35  Am. 
St.  Rep.  180;  20  L.  R.  A.  698;  33  Pac.  268; 
TSstate    of    Healy,    122    Cal.    162;    54    Pac. 


§4 


PRELIMINARY   PROVISIONS. 


Construction  of  codes  with  relation  to 
each  other.  '-With  relation  to  each  other. 
the  provisions  of  the  four  codes  must  be 
construed  (except  as  in  the  next  two  sec- 
tions provided)  as  though  all  such  codes 
had  been  passed  at  the  same  moment  of 
time,  and  were  parts  of  the  same  statute." 
Pol.  Code,  §  44S0.  While  the  code  provis- 
ions are  controlling  where  they  assume 
to  cover  a  given  subject  (McBride  v.  Fal- 
lon, 65  Cal.  301;  4  Pac.  17),  yet  they  do 
not  necessarily  embody  the  whole  law  of 
that  subject,  as  there  may  be  other  statu- 
tory provisions  not  embraced  in  the  code. 
Estate  of  Apple,  66  Cal.  432;  6  Pac.  7. 
"Where  the  provisions  of  the  several  codes 
are  not  contradictor}',  they  should  be  read 
together,  when  dealing  with  the  same  sub- 
ject-matter (St.  Louis  Nat.  Bank  v.  Gay, 
101  Cal.  286;  35  Pac.  876;  People  v.  Apple- 
garth,  64  Cal.  229;  30  Pac.  805),  and  con- 
strued as  though  passed  in  view  of  each 
other  (Eobinson  v.  Southern  Pacific  Co., 
105  Cal.  526;  2S  L.  R.  A.  773;  38  Pac.  94, 
722),  and  as  parts  of  the  same  statute. 
Estate  of  Weed,  120  Cal.  634;  53  Pac.  30. 
Thus,  where  a  term  is  defined  in  one  code, 
its  use  in  another  code  must  be  deemed 
to  have  been  with  reference  to  such  defi- 
nition. Bruner  v.  Superior  Court,  92  Cal. 
239;  28  Pac.  341;  Keyes  v.  Cyrus,  100  Cal. 
322;  38  Am.  St.  Eep.  296;  34  Pac.  722. 
Where  one  code  authorizes  or  requires  a 
thing  to  be  done,  and  another  provides  the 
means  (Page  v.  Superior  Court,  122  Cal. 
209;  54  Pac.  730),  or  limits  and  defines  a 
power,  and  enumerates  the  circumstances 
under  which  it  may  be  exercised,  they  are 
to  be  construed  as  one  statute  (People  v. 
Fellows,  122  Cal.  233;  54  Pac.  830),  and  the 
general  provisions  of  one  are  modified  by 
the  specific  provisions  of  another  (People 
V.  Xorris,  144  Cal.  422;  77  Pac.  998);  and 
the  provisions  of  the  various  codes  bear- 
ing upon  the  same  subject-matter  must 
be  construed  in  pari  materia.  Estate  of 
Miner,  143  Cal.  194;  76  Pac.  968.  Such  a 
construction  must  therefore  be  given  to 
the  provisions  of  each,  that  all  may,  if 
possible,  have  effect  (Gonzales  v.  Wasson, 
51  Cal.  295) ;  and  every  word  of  each  have 
its  proper  meaning.  Ex  parte  Reis,  64  Cal. 
233;  30  Pac.  806.  It  is  only  where  there 
is  a  conflict  between  the  provisions  of  the 
different  codes  that  it  is  necessary  to  de- 
termine which  shall  prevail  (Clarke  v. 
Mead,  102  Cal.  516;  36  Pac.  862),  but  con- 
flicts should  be  reconciled,  if  possible  (Ex 
parte  Reis,  64  Cal.  233;  30  Pac.  806).  and 
harmonized  and  construed  together.  Weber 
v.  McCleverty,  149  Cal.  316;  86  Pac.  706. 

Rules  of  construction  in  case  of  conflict. 
The  following  rules  are  laid  down  for  the 
construction  of  the  several  codes,  and  the 
different  titles,  chapters,  and  sections 
thereof,   whrre   thoro   is   a   conflict. 

Conflict  between  titles.  "If  the  provis- 
ions of  any  title  conflict  with  or  contra- 
vene  the   provisions   of   another   title,   the 


provisions  of  each  title  must  prevail  as  to 
all  matters  and  questions  arising  out  of 
the  subject  matter  of  such  title."  Pol.  Code, 
§  4481.  This  rule  applies  only  where 
there  is  a  conflict;  it  implies  that  where 
there  is  no  conflict  a  provision  will  be 
valid,  although,  in  the  sense  of  that  rule, 
it  is  not  in  regard  to  a  question  arising 
out  of  the  subject-matter  of  the  title.  Ma- 
lone  V,  Bosch,  104  Cal.  680;  38  Pac.  516. 
It  is  a  cardinal  rule  of  statutory  con- 
struction, that  specific  provisions  upon  a 
particular  subject  control  the  general  pro- 
visions for  the  class  to  which  that  subject 
belongs  (Loudon  etc.  Bank  v.  Parrott,  125 
Cal.  472;  73  Am.  St.  E«p.  64;  58  Pac. 
164) ;  but  where  it  is  evident  from  the 
language  used,  and  from  the  incongruity 
of  the  nature  of  the  different  provisions, 
that  they  are  to  be  understood  as  refer- 
ring respectively  to  distinct  classes,  the 
rule  requiring  the  statutes  to  be  construed 
together  does  not  apply.  People  v.  Xorris, 
144  Cal.  422;  77  Pac.  998.  The  subject- 
matter  of  the  title  should  be  ascertained, 
not  so  much  from  its  head-lines  as  from 
its  contents.  People  v.  Freese,  76  Cal.  633; 
18  Pac.  812.  The  particular  provision  of 
one  title  in  relation  to  the  subject-matter 
will  prevail  over  the  general  provision  of 
another  title  (Fessenden  v.  Summers,  62 
Cal.  484),  especially  when  the  general  pro- 
vision is  silept  on  the  point  (State  v. 
Campbell,  3  Cal.  App.  604;  86  Pac.  840); 
but  if  there  is  any  provision  of  law,  in 
any  other  title,  specially  governing  the 
subject-matter,  it  must  prevail  (Woods  v. 
Varnum,  83  Cal.  46;  23  Pac.  137);  for  the 
provisions  specially  adapted  to  the  sub- 
ject will  always  govern  (People  v.  Central 
Pacific  R.  R.  Co.,  83  Cal.  393;  23  Pac. 
303) ;  but  all  the  provisions  of  the  code 
bearing  upon  a  single  subject-matter  are 
to  be  construed  together  harmoniously  if 
possible.  Estate  of  Clarke,  148  Cal.  108; 
113  Am.  St.  Rep.  197;  7  Ann.  Cas.  306;  1 
L.  R.  A.   (N.  S.)   996;  82  Pac.  760. 

Conflict  between  chapters.  "If  the  pro- 
visions of  any  chapter  conflict  with  or 
contravene  the  provisions  of  another  chap- 
ter of  the  same  title,  the  provisions  of 
each  chapter  must  prevail  as  to  all  mat- 
ters and  questions  arising  out  of  the  sub- 
ject-matter of  such  chapter."  Pol.  Code, 
§  4482.  Where  two  chapters  both  relate 
to  the  same  general  subject-matter,  but 
one  relates  specifically  to  the  particular 
subject-matter  under  consideration,  the 
latter  must  govern.  Ham  v.  Santa  Rosa 
Bank,  62  Cal.  125;  45  Am.  Eep.  654.  Re- 
sort must  always  be  had  to  the  subject- 
matter,  to  determine  whether  it  falls  more 
naturally  in  one  chapter  than  in  another 
(Southern  Pacific  R.  R.  Co.  v.  Painter, 
113  Cal.  247;  45  Pac.  320);  and  the  head- 
ings of  the  chapters  and  titles  may  be 
examined  for  this  purpose.  Keyes  v.  Cy- 
rus, 100  Cal.  322;  38  Am.  St.  Rep.  296; 
34  Pac.  722. 


RULE  OF  CONSTRUCilON  OF  THIS  CODE. 


§4 


Conflict  'between  articles.  "If  the  pro- 
visimis  of  anj-  nrtielo  coiillict  with  or  eon- 
travciio  the  provisions  of  auothcr  article 
of  tlie  same  chapter,  the  provisions  of 
each  article  must  prevail  as  to  all  mat- 
ters and  questions  arising  out  of  the  sub- 
ject-matter of  such  article."  Pol.  Code, 
§  -1483.  In  case  of  conflict,  the  provision 
of  the  article  must  prevail,  under  which 
the  subject-matter  more  properly  comes 
(Odd  Follows'  Sav.  Bank  v.  Bauton,  46 
Cal.  CO-1;  People  v.  Frocse,  S3  Cal.  453;  23 
Pac.  37S),  and  which  deals  specifically 
therewith.  Estate  of  Bergin,  100  Cal.  370; 
34  Pac.  867. 

Conflicting  sections  of  the  same  chapter 
or  article.  "If  conflicting  provisions  are 
found  in  different  sections  of  the  same 
chapter  or  article,  the  provisions  of  the 
sections  last  in  numerical  order  must  pre- 
vail, unless  such  construction  is  inconsis- 
tent with  the  meaning  of  such  chapter  or 
article."  Pol.  Code,  §  4484.  This  rule  does 
not  apply  "where  the  sections  were  passed 
at  different  times,  as  it  is  an  old  and  well- 
settled  rule,  that  when  two  laws  upon  the 
same  subject-matter,  passed  at  dift'erent 
times,  are  inconsistent  with  each  other, 
the  one  last  passed  must  prevail;  so  it  has 
always  been  the  rule,  that,  when  different 
provisions  of  a  statute,  all  passed  at  the 
same  time,  could  not  be  reconciled,  the 
one  last  in  point  of  position  must  prevail; 
this  was  upon  the  theory  that  effect 
should  always  be  given  to  the  later 
rather  than  to  an  earlier  expression  of  the 
legislative  will;  the  presumption  being 
that  the  latter  part  of  the  statute  was 
last  considered:  there  is  no  indication  in 
§  4484  of  the  Political  Code  of  any  intent 
to  change  this  well-established  rule.  Peo- 
ple V.  Dobbins,  73  Cal.  257;  14  Pac.  860. 
In  the  construction  of  statutes,  all  parts 
are  to  be  considered  together,  keeping  in 
view  the  subject-matter  in  order  to  ascer- 
tain the  legislative  intent:  one  clause  may 
enlarge  or  limit  other  provisions;  but  no 
construction  should  be  given  which  will 
lead  to  absurdities,  if  it  can  be  reason- 
ably avoided.  San  Diego  v.  Granniss,  77 
Cal.  511;  19  Pac.  875.  The  sections  of  a 
statute  in  pari  materia  must  be  read  to- 
gether and  effect  given  to  each,  and  so 
construed  as  not  to  render  nugatory  the 
restrictions  of  any  section.  Gleason  v. 
Spray,  81  Cal.  217;  15  Am.  St.  Kep.  47;  22 
Pac.  551;  People  v.  Broadway  Wharf  Co., 
31-  Cal.  33;  Nicolson  Pavement  Co.  v. 
Painter.  35  Cal.  699.  The  different  sec- 
tions of  a  chapter  must  be  construed  so  as 
to  reconcile  apparent  conflicts,  if  possible. 
Emeric  v.  Alvarado,  64  Cal.  529;  2  Pac. 
418.  They  must  be  read  together,  and 
that  interpretation  should  be  placed  upon 
the  language  which  will,  if  possible,  give 
effect  to  each  section,  and  make  it  com- 
patible with  common  sense  and  the  plain 
dictates  of  justice.  People  v.  Waterman, 
31  Cal.  412;  Cullerton  v.  Mead,  22  Cal.  95; 


People  V.  Soeley,  137  Cal.  13;  69  Pac.  693. 
Effect  must  be  given,  us  far  as  possible,  to 
nil  the  sections  upon  the  same  subject, 
jiroviding  a  comi)letc  scheme  covering  the 
subject-matter.  People  v.  Golden  Gate 
Lodge,  128  Cal.  257;   (in  Pac.  865. 

Effect  to  be  given  headings.  While  the 
headings  of  chapters  may  be  resorted  to, 
to  determine  the  correct  interpretation 
of  the  sections  thereof,  yet  they  are  not 
conclusive  of  the  question  of  the  power  of 
the  legislature  to  pass  the  statute.  Ex 
jjarte  Koser,  60  Cal.  177.  Each  article  of 
the  code  is  preceded  by  head-notes,  num- 
bered to  correspond  with  the  sections  fol- 
lowing, and  purporting  to  give,  in  brief, 
the  subject  of  each  of  such  sections;  they 
are  parts  of  the  statute,  limiting  and  de- 
fining the  sections  to  which  they  refer:  to 
refuse  to  give  effect  to  them  according  to 
their  import,  would  be  to  make  the  law, 
not  to  administer  it.  Sharon  v.  Sharon,  75 
Cal.  1;  16  Pac.  345.  These  head-notes  are 
entitled  to  more  consideration,  in  explain- 
ing the  intention  of  the  different  sections, 
where  the  language  is  doubtful,  than  the 
title  of  the  entire  act  (Barnes  v.  Jones,  51 
Cal.  303),  and  may  be  examined  for  the 
purpose  of  determining  the  particular  in- 
tent of  the  legislature  with  regard  to  the 
chapter  in  which  the  section  to  be  con- 
strued is  placed.  Keyes  v.  Cyrus,  100  Cal. 
322;  38  Am.  St.  Eep.  296;  34  Pac.  722.  In 
construing  doubtful  statutes,  the  title  of 
an  act  is  sometimes  resorted  to,  in  order 
to  ascertain  the  legislative  intent  (Peo- 
ple V.  Abbott,  16  Cal.  358;  State  v.  Conk- 
ling,  19  Cal.  501;  People  v.  Board  of 
Supervisors,  36  Cal.  595),  but  it  is  never 
allowed  to  enlarge  or  control  the  body  of 
the  statute.  Hagar  v.  Board  of  Supervi- 
sors, 47  Cal.  222. 

CODE  COMMISSIONERS'  NOTE.  The  rules 
of  statutory  construction  present  one  of  the 
widest  fields  of  learning  known  to  the  lawyer. 
While  it  is  a  general  principle  that  the  will  of 
the  legislature,  as  expressed  in  a  statute,  is  to 
be  carried  into  full  effect,  and  that,  for  the  pur- 
pose of  ascertaining  it,  every  source  of  informa- 
tion is  to  be  resorted  to,  such  as  its  title,  its 
preamble,  its  history,  and  attendant  circum- 
stances, and  above  all,  the  evil  aimed  at  and  the 
remedy  intended  to  be  applied,  it  is  equally  well 
settled  that  a  mure  stringent  rule  was  applicable 
to  a  certain  class  of  statutes,  namely:  to  those 
of  a  penal  nature,  and  those  which  are,  as  it 
was  termed,  in  derogation  of  the  common  law. 
Within  this  latter  category  liave  been  classed 
statutes  prescribing  the  practice  of  the  courts,  iu 
respect  to  which  it  was  remarked  by  the  supreme 
court  of  New  York  (commenting  upon  prorisions 
in  the  Practice  Code  of  that  state,  which  is  in 
most  respects  similar  to  this  code),  that  "the 
rules  and  practice  of  the  court,  being  established 
by  the  court,  may  be  made  to  j'ield  to  circum- 
stances to  promote  the  ends  of  justice.  Not  so 
as  to  a  statute;  it  is  unbending,  requiring  im- 
plicit obedience  as  well  from  the  court  as  from 
its  suitors."  Jackson  v.  Wiseburn,  5  Wend.  137. 
Without  stopping  to  inquire  how  far  this  prin- 
ciple is  applicable  to  statutory  provisions  pre- 
Ecril)ing,  for  example,  the  time  within  which  a 
particular  act  must  be  done  (which  was  the  case 
in  the  instance  referred  to),  it  certainly  should 
not  apply  in  all  its  severity  to  a  system  of  regu- 
lation having  in  view  as  its  sole  object  the 
furtherance   of   justice   and   a   disregard   of   tech- 


§§5-7 


PRELIMINARY   PROVISIONS. 


rigid  and  unbending  statute,  as  construed  by 
some,  a  rule  of  procedure  susceptible  of  easy 
adaptation  to  the  purposes  of  justice  which  it 
alone  has  in  view.  See  tlie  opinion  of  Justice 
Cope.  Jones  v.  Steamship  Cortes,  17  Cal.  487;  79 
Am.  Dec.  142.  See  also  Lucas  v.  Payne,  7  Cal. 
92;  Ward  v.  Severance,  7  Cal.  126;  Chamberlain 
V.  Bell,  7  Cal.  292;  68  Am.  Dec.  260.  See  Civ. 
Code,   §  4,  and  note. 


Bical  strictness.  This  is  the  great  principle  run- 
ning through  all  the  provisions  of  this  code. 
The  chief  design  and  the  merit  of  the  code,  if 
it  has  any,  is  its  attempt  to  make  the  attainment 
of  justice  the  paramount  object,  and  the  use  of 
forms  mere  au.xiliaries,  which,  when  they  come 
in  conflict  with  the  ends  of  justice,  are  to  be 
relaxed.  This  section  was  intended  to  obviate 
much  of  the  difficulty  under  which  courts  have 
labored,    and    to    render    the    code,    instead    of    a 

§  5.    Provisions  similar  to  existing  laws,  how  construed.     The  provisions 

of  this  code,  so  far  as  they  are  substantially  the  same  as  existing  statutes, 

must  be  construed  as  continuations  thereof,  and  not  as  new  enactments. 

framed  with  a  view  to  a  complete  system 
of  law,  with  the  intent  to  disturb  the  ex- 
isting state  of  things  as  little  as  possible 
(People  V.  Bissell,  49  Cal.  407),  and  so  far 
as  they  are  substantially  the  same  as  exist- 
ing statutes  or  common  law,  they  must 
be  construed  as  continuations  thereof. 
Churchill  v.  Pacific  Improvement  Co.,  96 
Cal.  490;  31  Pac.  560.  If  the  statute  of 
limitations  had  commenced  to  run  before 
the  codes  took  effect,  it  continued  to  run, 
notwithstanding  the  passage  of  the  codes, 
and  was  not  lengthened  by  them.  Benja- 
min V.  Eldridge,  50  Cal.  612. 

Construction.  The  word  "construed" 
does  not  mean,  simply,  "to  interpret,"  "to 
explain,"  "to  translate,"  or  "to  show  the 
meaning  of,"  but  is  intended  to  mean 
"regarded"  or  "considered."  Churchill  v. 
Pacific  Improvement  Co.,  96  Cal.  490;  31 
Pac.  560.  This  section  is,  in  part,  a  rule 
of  construction,  and  its  meaning  is,  that 
words  used  in  a  former  statute  on  the 
same  subject  have  the  same  meaning  in 
this  code  as  in  the  former  statute.  Ex 
parte  Eeis,  64  Cal.  233-241;   30  Pac.  806. 


Effect  of  codes  on  existing  statutes.  See  post, 
§18. 

Similar  provisions.  See  Civ.  Code,  §  5 ;  Pen. 
Code,  §  5;    Pol.    Code,  §  5. 

Legislation  §  5.     1.     Enacted  March  11,  1872. 

2.  Amendment  by  Stats.  1901,  p.  117,  and 
held  unconstitutional,  in  Lewis  v.  Dunne,  134 
Cal.  291;  Mr.  Justice  McFarland  saying,  "The 
said  act  ...  is  unconstitutional,  and  void  for 
all  purposes,  and  is  inoperative  to  change  or  in 
any  way  affect  the  law  of  the  state  as  it  stood 
immediately  before  the  approval  of  said  act. 
.  .  .  The  act  covers  one  hundred  and  fifty  pages 
of  the  published  statutes  of  1901;  it  amends 
over  four  hundred  sections:  it  repeals  nearly  one 
hundred  sections;  it  changes  the  numbers  of 
other  sections;  it  adds  a  great  many  new  sec- 
tions; and  it  contains  this  clause,  'Certain  title 
and  chapter  headings  .  .  .  are  hereby  inserted, 
changed,  and  amended,'  and  then  follow  several 
pages  of  insertions,  changes,  and  amendments  of 
such  headings.  .  .  .  We  are  forced  to  the  con- 
clusion that  this  act  is  a  revision,  and  void  for 
want  of  re-enactment  and  publication  at'  large  of 
the  revised  law."  Thus  the  attempted  repeals 
or  attempted  amendments  of  the  Code  of  Civil 
Procedure  as  embodied  in  the  act  of  the  legis- 
lature of  1901  were  declared  unconstitutional 
and  void.  This  act  was  the  result  of  an  act 
approved  March  25,  1895  (Stats.  1895,  p.  345), 
whereby  the  legislature  created  and  established 
"a  commission  for  revising,  systematizing,  and 
reforming  the  laws  of  this  state,"  and  provided 
that  "said  commission,  to  be  known  as  'The 
Commissioners  for  the  Revision  and  Reform  of 
the  Law,'  should  be  appointed  by  the  governor." 
This  commission  was  duly  appointed,  and  there- 
after filed  with  the  secretary  of  state  a  report 
recommending,  among  other  things,  a  revision  of 
the  Code  of  Civil  Procedure,  and  the  legislature 
(Stats.  1901,  p.  117)  embodied  their  recom- 
mendations in  the  act  declared  "unconstitu- 
tional, and  void  for  all  purposes." 

New      enactments.     The      codes      were 


Constitutionality  of  code  amendments  and  re- 
visions.   See  note  36  Am.  St.  Rep.  267. 

CODE  COMMISSIONERS'  NOTE.  The  Po- 
litical Code  contains  a  general  provision  that  ihe 
repeal  of  existing  statutes  shall  not  revive  any  law 
heretofore  repealed  or  suspended,  nor  any  office 
heretofore  abolished,  and  therefore  such  a  pro- 
vision has  not  been  incorporated  herein.  See 
People  V.  Craycroft,  2  Cal.  243;  56  Am.  Dec.  331. 


§  6.  Tenure  of  offices  preserved.  All  persons  who  at  the  time  this  code 
takes  effect  hold  office  under  any  of  the  acts  repealed,  continue  to  hold  the 
same  according  to  the  tenure  thereof,  except  those  offices  which  are  not  con- 
tinued by  one  of  the  codes  adopted  at  this  session  of  the  legislature. 

Similar  provision.    See  Pol.  Code,  §  6. 
Legislation  8  6.     Enacted  March  11,  1873. 

§  7.  Construction  of  repeal  as  to  certain  offices.  When  any  office  is  abol- 
ished by  the  repeal  of  any  act,  and  such  act  is  not  in  substance  re-enacted 
or  continued  in  either  of  the  codes,  such  office  ceases  at  the  time  the  codes 
take  effect. 


Eepeals  by  implication.    See  post,  §  18. 
Legislation  S  7.     Enacted  March  11,  1873. 

Abolition  of  office.  Where  the  act  cre- 
ating an  office  is  repealed,  but  the  office 
is  continued  by  the  Political  Code,  the  in- 
cumbent is  authorized  to  occupy  the  office, 


until  his  successor  qualifies.  People  v.  Bis- 
sell, 49  Cal.  407.  In  the  absence  of  a 
constitutional  inhibition,  the  legislature 
has  power  to  alter  or  abridge  a  term  of 
office  created  by  it  (People  v.  Haskell,  5 
Cal.    357;    People    v.    Squires,    14   Cal.    12; 


ACTIONS  NOT  AFFECTED — LIMITATIONS  CONTINUE  TO  RUN. 


§§B,9 


Cohen  \.  Wright,  22  Cal.  293;  In  re  Bul- 
ger, 45  Cal.  553;  Spring  Valley  Water 
Works  V.  Board  of  Supervisors,  (51  Cal.  3; 
Pennie  v.  Keis,  80  Cal.  2GC;  22  Pac.  17G; 
Peojile  V.  Banvard,  27  Cal.  470),  and  may 
extend  the  term  of  an  incumbent,  pro- 
vided the  extension  does  not  exceoi!  the 
limitations  fixed  by  the  constitution. 
Christy  v.  Board  of  Supervisors,  39  Cal.  3; 
and  see  Miller  v.  Kister,  68  Cal.  142;  8 
J'ac.  813.  The  legislature  may  also  make 
the  enjoyment  of  an  elective  office  depend- 
ent upon  conditions  (Brodie  v.  Campbell, 
17  Cal.  11),  and  may  take  away  from  the 
office  the  duties  and  emoluments  thereof, 
before  the  expiration  of  the  term.  People 
V.  Squires,  14  Cal.  12.  An  incumbent  has 
no  proprietary  interest  in  an  office  created 
by  the  legislature:  it  has  full  control  over 

§  8.    Actions,  etc.,  not  affected  by 

commenced  before  this  code  takes  eft'ec 
its  provisions,  but  the  proceedings  ther 
of  this  code  as  far  as  applicable. 

Similar  provisions.  See  Civ.  Code,  §  6 ;  Pol. 
Code,  §  8.  See  also  repealing  clause  at  end  of 
this  code. 

Legislation  §  8.       1.     Enacted  March  11,  1872. 
3.     Amendment   by    Stats.    1901,    p.  117;    un- 
constitutional.    See   note   ante,  §  5. 

Pending  actions.  Actions  commenced 
before  the  code  went  into  effect  were  gov- 
erned by  the  law  in  force  at  the  time  of 
commencement  (Caulfield  v.  Doe,  45  Cal. 
221;  Hancock  v.  Thorn,  46  Cal.  643;  Strue- 
ven  v.  His  Creditors,  62  Cal.  45) ;  the 
clear  implication  from  this  section  being, 
that  actions  not  commenced  and  rights 
not  vested  prior  to  the  adoption  of  the 
codes  w^ere  to  be  controlled  by  the  codes; 
the  codes  therefore  applying  only  to  new 
actions,  and  to  causes  of  action  which,  un- 
der the  existing  statutes,  were  not  barred 
by  limitation.  Allen  v.  Allen,  95  Cal.  184; 
16  L.  R.  A.  646;  30  Pac.  213.  A  proceed- 
ing for  a  new  trial  after  the  codes  went 
into  effect,  being  a  new  proceeding,  is  gov- 
erned by  the  code  provisions  (Kelly  v. 
Larkin,  47  Cal.  58;  and  see  also  Hodgilon 
V.  Griffin,  56  Cal.  610) ;  but  proceedings 
for  a  new  trial  instituted  before  the  codes 
went  into  effect  were  governed  by  the 
Practice  Act.   Macy  v.  Davila,  48  Cal.  646. 

§  9.  Limitations  shall  continue  to  run.  When  a  limitation  or  period  of 
time  prescribed  in  any  existing  statute  for  acquiring  a  right  or  barring  a 
remedy,  or  for  any  other  purpose,  has  begun  to  run  before  this  code  goes 
into  effect,  and  the  same  or  any  limitation  is  prescribed  in  this  code,  the 
time  which  has  already  run  shall  be  deemed  part  of  the  time  prescribed  as 
such  limitation  by  this  code. 

Existing  actions  not  affected.  See  post,  §  362. 
Limitation  of  actions.  See  post,  §§  312  et  seq. 
Similar  provision.     See  Pol.  Code,  §  9. 

Legislation  §  9.  1.  Enacted  March  11,  1873. 
2.   Amended      by      Code      Amdts.      1873-74, 

p.  279;    (1)   words   "goes  into  effect"   substituted 


such  office,  unless  restricted  by  the  consti- 
tution (Miller  v.  Kister,  68  Cal.  142;  8 
Pac.  813;  Pennie  v.  Eeis,  80  Cal.  266;  22 
Pac.  176) ;  nor  has  an  incumbent  any 
vested  right  in  tlie  office,  which  would  im- 
pair the  right  of  the  legislature  to  in- 
crease or  diminish  the  salary,  or  impose 
Dew  duties,  or  wholly  abolish  the  office 
(Cohen  v.  Wright,  22  Cal.  293);  nor  has 
he  any  contractual  relation  with  tlie  state, 
or  obligation,  which  may  be  impaired  by 
the  abolition  of  the  office  or  the  diminu- 
tion of  the  salary.  Myers  v.  English,  9 
Cal.  341.  There  is  a  clear  distinction, 
however,  between  an  office-holder,  as  such, 
and  one  holding  a  contract  with  the  state 
for  the  performance  of  services.  McDon- 
ald v.  Yuba  County,  14  Cal.  444. 


this  code.  No  action  or  proceeding 
t,  and  no  right  accrued,  is  affected  by 
ein  must  conform  to  the  requirements 

**Eight  accrued."  This  expression  em 
braces  all  civil  and  political  rights,  abso- 
lute and  qualified,  under  the  law  as  it  ex- 
isted prior  to  the  codes,  whether  arising 
out  of  past  contracts  express  or  implied,  or 
ownership  of  property,  or  in  other  words, 
all  vested  rights.  Dewey  v.  Lambier,  7 
Cal.  347;  Cohen  v.  Davis,  20  Cal.  187; 
Welch  V.  Sullivan,  8  Cal.  511;  White  v. 
Moses,  21  Cal.  34;  Scott  v.  Dyer,  54  Cal. 
430.  The  code,  being  remedial  in  its  na- 
ture, is  confined  to  the  remedy,  and  does 
not  extend  to  vested  rights;  a  remedy  is 
not  a  vested  right;  thus,  a  motion  for  a 
new  trial  is  a  remedy,  and  not  a  right. 
Kelly  V.  Larkin,  47  Cal.  58;  Towuley  v. 
Adams,  US  Cal.  3S2;  50  Pac.  550. 

CODE  COMMISSIONERS'  NOTE.  The  repeal 
of  a  statute  conferring  rights  or  presciil>inK  n^ne- 
dies  would  have  the  eilect  to  extinguish  actions 
instituted  under  it,  and  whioh  were  iicudinK  wlieii 
the  repeal  went  into  operation,  if  no  provision 
were  made  enabling  the  court  to  proceed  to  try 
and  determine  them.  McMinn  v.  Bliss,  31  Cal. 
122.  Where  an  inchoate  right  accrued  under  the 
statutes  as  they  existed  previous  to  the  adoption 
of  the  code,  and  by  the  code  the  proceedings  to 
perfect  the  right  are  regulated  and  prescribed, 
such  regulations  and  requirements  must  be  pur- 
sued, or  the  party  is  remediless.  See  particularly 
People  V.  Livingston,  6  Wend.  526;  Sedgwick  on 
Stat,  and  Const.  Law,  679;  see  post,  §  18. 


for  "takes  effect";  and  (2)  the  last  clause  sub- 
stituted for  "the  time  of  limitation  continues  to 
run  and  has  the  like  effect  as  if  the  whole  period 
had  begun  and  ended  after  its  adoption." 

3.   Amendment  by  Code  Amdts.   1901,  p.  117; 
unconstitutional.    See  note  ante,  §  5. 


§10 


PRELIMINARY   PROVISIONS. 


10 


Limitation  of  actions.  Where  the  stat- 
ute of  limitations  commenced  to  run  be- 
fore the  codes  went  into  efifect,  it  contin- 
ued to  run,  and  was  not  extended  by  the 
enactment  of  the  codes;  the  running  of 
the  statute,  in  such  case,  being  governed 
by  the  law  in  force  at  the  time  of  the 
passage  of  the  codes.  Benjamin  v.  El- 
dridge,  50  Cal.  612.  New  and  amended 
sections  of  the  code  are  governed  by  this 
section;  but  they  are  not  taken  to  have 
been  the  law  prior  to  the  time  they  take 


effect.    Central  Pacific  R.  R.  Co.  v.  Shack- 
elford, 63  Cal.  261. 

Retrospective  operation  of  statutes.  See  note 
11   Am.   Dec.    98. 

When  retrospective  operation  of  statutes  is  per- 
missitile.    Kee  note  10  Am.  Dec.  131. 

Retrospective  operation  of  statute  of  limita- 
tions.   See   note   111   Am.   St.   Rep.   4.">.5. 

Retroactive  operation  of  statute  of  limitations. 
See  notes  Ann.  Cas.  1912A,  1041;  4  Ann.  Cas.  166. 

CODE  COMMISSIONERS'  NOTE.  Necessary, 
because  the  statutes  of  limitations  for  civil  ac- 
tions and  proceedings   are   embodied  in  this  code. 


§  10.  Holidays.  Holidays  witliin  the  meaning  of  this  code,  are  every 
Sunday,  the  first  day  of  January,  twelfth  day  of  February,  to  be  known  as 
Lincoln  day,  twenty-second  day  of  February,  thirtieth  day  of  May,  fourth 
of  July,  ninth  day  of  September,  first  J\Ionday  in  September,  twelfth  day  of 
October,  to  be  known  as  "Columbus  day,"  twenty-fifth  day  of  December, 
eveiy  day  on  which  an  election  is  held  throughout  the  state,  and  every  day 
appointed  by  the  President  of  the  United  States  or  by  the  governor  of  this 
state  for  a  public  fast,  thanksgiving  or  holiday.  If  the  first  day  of  January, 
twelfth  daj'  of  February,  twenty-second  day  of  February,  the  thirtieth  day 
of  May,  the  fourth  day  of  July,  the  ninth  day  of  September,  the  twelfth  day 
of  October  or  the  twentj^-fifth  day  of  December  falls  upon  a  Sunday,  the- 
Monday  following  is  a  holidaj^  Every  Saturday  from  twelve  o'clock  noon 
until  twelve  o'clock  midnight  is  a  holiday  as  regards  the  transaction  of  busi- 
ness in  the  public  offices  of  this  state,  and  also  in  political  divisions  thereof 
where  laws,  ordinances  or  charters  provide  that  public  offices  shall  be  closed 
on  holidays;  provided,  this  shall  not  be  construed  to  prevent  or  invalidate 
the  issuance,  filing,  service,  execution  or  recording  of  any  legal  process  or 
written  instrument  whatever  on  such  Saturday  afternoons;  and  provided 
further,  that  the  public  schools  of  this  state  shall  close  on  Saturday,  Sun- 
day, the  first  day  of  January,  the  thirtieth  day  of  May,  the  fourth  day  of 
July,  the  twenty-fifth  day  of  December  and  on  every  day  appointed  by  the 
President  of  the  United  States  or  the  governor  of  this  state  for  a  public  fast, 
thanksgiving  or  holiday.  Said  public  schools  shall  continue  in  session  on 
all  other  legal  holidays  and  shall  hold  proper  exercises  commemorating  the 
day.  Boards  of  school  trustees  and  city  boards  of  education  shall  have 
pow-er  to  declare  a  holiday  in  the  public  schools  under  their  jurisdiction 
when  good  reason  exists  therefor. 


Non-Judicial  days.      See  post,  §  134. 
Last   day   falling   on  holiday.     See   post,  §  13. 
Similar  provisions.     See    Civ.    Code,  §  7;     Pol. 
Code,  §  10. 

Legislation  §  10.  1.  Enacted  March  11,  1873, 
and  then  read:  "Holidays,  within  the  meaning 
of  this  code,  are:  every  Sunday,  the  first  day  of 
January,  the  twenty-second  day  of  February,  the 
fourth  day  of  July,  the  twenty-fifth  day  of  De- 
cember, every  day  on  which  an  election  is  held 
throughout  the  state,  and  every  day  appointed 
by  the  President  of  the  United  States,  or  by  the 
governor  of  this  state,  for  a  public  fast,  thanks- 
giving or  holiday." 

2.  Amended  by  Code  Amdts.  1880,  p.  59, 
adding  (1)  "the  thirtieth  (30th)  day  of  May"; 
and,  at  end,  (2)  "If  the  first  day  of  January, 
the  twenty-second  day  of  February,  the  thirtieth 
day  of  May,  the  fourth  day  of  July,  or  the 
twenty-fifth  day  of  December,  fall  upon  a  Sunday, 
the  Monday  following  is  a  holiday." 

3.  Amended  by  Stats.  1889,  p.  46,  adding 
"the  ninth  day  of  September"   in   both  places. 


4.  Amended  by  Stats.  1893,  p.  186,  adding 
"the   first   Monday  in   October." 

5.  Amended  by  Stats.  1897,  p.  15,  changing 
"the  first  Monday  in  October"  to  "the  first 
Monday   in    September." 

6.  Amended  by  Stats.  1907,  p.  561;  the 
code  commissioner  saying,  "Merely  adds  the  Sat- 
urday half-holiday  sentence,  in  order  to  make 
this  section  correspond  to  the  amendment  adopted 
to  §  10  of  the  Political  Code  in  1905  and  §  7  of 
the  Civil  Code  in  1907." 

7.  Amended  by  Stats.  Extra  Sess.  1907,  p.  7, 
(1)  adding,  at  end  of  first  sentence,  "and  such 
days  as  the  governor  may  declare  as  special 
holidays";  (2)  changing  "this"  to  "that  such" 
after  "provided";  (3)  adding  a  second  proviso, 
reading,  "Provided  further  that  the  governor  of 
the  state  may  declare  special  holidays  and  he 
may  in  one  i)roclamation  designate  one  or  any 
number  of  consecutive  days,  as  special  holidays, 
and  during  any  such  special  holidays  no  public 
duty  shall  be  suspended  or  prohibited  except 
such    as    affect    the    administration   of   justice    in 


11 


LAST  DAY  FALLING  ON  HOLIDAY — COMPUTATION  OF  TIME.  §§  11,  12 


the  courts  of  this  state  as  prescribed  hy  section 
135  of  this  code  fur   the  control  of  sucli  courts." 

8.  Amended  by  Stats.  1909.  p.  22,  (1)  add- 
ing (a)  "the  twelfth  day  of  Octolicr,  to  be  known 
as  'Disoovery  Day,'"  and  (b)  "the  twelfth  day 
of  October";  (2)  canceling  the  amendments  of 
extra   session  of   1907,   noted   supra. 

9.  Amended  by  Stats.  1911,  p.  1122,  (1)  in 
first  sentence,  (a)  omitting  comma  after  "Holi- 
days," thus  making  the  following  phrase  re- 
strictive; (b)  adding  "twelfth  day  of  February, 
to  be  known  as  'Lincoln  Day'";  (c)  substituting 
"Columbus  Day"  for  "Discovery  Day";  (2)  in 
second  sentence,  (a)  adding  "twelfth  day  of 
February";  (b)  substituting  the  verb  "falls" 
for  "fall,"  thus  changing  the  mood;  (3)  in  the 
first  two  sentences  of  the  old  section,  the  definite 
article  "the"  was  used  before  the  day  of  the 
month,  in  each  instance;  (4)  in  third  sentence, 
(a)  substituting  "shall"  for  "may,"  in  the 
clause  "public  ofTices  shall  be  closed";  (b)  add- 
ing all  the  matter  after  the  end  of  the  first  pro- 
vision, from  "and  provided  further,"  to  the  end 
of  the  section. 

Where  last  day  is  a  holiday.  Where  the 
last  day  appoiutcd  for  the  performance  of 
an  act  falls  upon  a  holiday,  the  act  may 
be  performed  at  any  time  during  the  next 
succeeding  day  (Muir  v.  Galloway,  61  Cal. 
4flS;  Blackwood  v.  Cutting  Packing  Co.,  71 
Cal.  461;  12  Pac.  493;  Diggins  v.  Harts- 
horne,  lOS  Cal.  154;  41  Pac.  283;  Northey 
V.  Bankers'  Life  Ass'n,  110  Cal.  547;  42 
Pac.  1079;  Reclamation  District  v.  Hamil- 
ton, 112  Cal.  603;  44  Pac.  1074;  California 
Improvement  Co.  v.  Quinchard,  119  Cal. 
87;  51  Pac.  24;  Crane  v.  Crane,  121  Cal. 
99;   53  Pac.  433;  Frassi  v.  McDonald,  122 


Cal.  400;  55  Pac.  139,  772);  and  this  is 
the  rule,  also,  where  both  of  the  last  two 
days  arc  holidays  (Crane  v.  Crane,  121  Cal. 
99;  53  Pac.  433);  and  where  the  last  day 
is  a  holiday  falling  on  a  Sunday,  and  by 
§  11  of  this  code  the  Monday  following  is 
a  holiday,  in  both  of  which  cases  the  time 
is  extended  so  as  to  include  the  third  suc- 
ceeding day.    Estate  of  Rose,  63  Cal.  346. 

Saturday  afternoon.  Courts  should  treat 
Saturday  afternoon  as  a  legal  holiday. 
People  V.  Heacock,  10  Cal.  App.  450;  102 
Pac.  543. 

Special  holidays.  The  superior  court  has 
jurisdiction,  on  a  day  declared  to  be  a  spe- 
cial holiday,  to  proceed  with  the  trial  of 
a  charge  of  felony.  Eisser  v.  Superior 
Court,  152  Cal.  531;  93  Pac.  85. 

Judicial  act  performed  on  holiday.  A 
prisoner  convicted  of  a  felony  cannot  be 
sentenced  upon  a  legal  holiday.  In  re 
Smith,  152'  Cal.  566;   93  Pac.  191. 

Effect  of  invalid  holiday.  The  duration 
of  an  invalid  holiday  cannot  operate  to 
extend  the  time  to  be  computed  for  serv- 
ing a  statement  on  motion  for  a  new  trial. 
Donovan  v.  ^tna  Indemnity  Co.,  10  Cal. 
App.  723;   103   Pac.  365. 

Judicial  notice.  Courts  take  judicial  no- 
tice of  special  holidays  declared  by  the 
governor.  Poheim  v.  Meyers,  9  Cal.  App. 
31;  98  Pac.  65, 


§  11.  Same.  If  the  first  day  of  January,  the  twenty-second  day  of  Feb- 
ruary, the  thirtieth  day  of  May,  the  fourth  day  of  July,  the  ninth  day  of 
September,  the  twelfth  day  of  October  or  the  twenty-fifth  day  of  December 
fall  upon  a  Sunday,  the  Monday  following  is  a  holiday. 

fall  on  a  Sunday,  the  succeeding  Monday 
is  a  holiday,  and  is  not  to  be  counted  in 
the  computation  of  time  in  which  an  act 
is  to  be  done  (Estate  of  Eose,  63  Cal. 
346);  and  where,  by  contract  executed  on 
a  Sunday,  a  party  is  given  all  of  the  fol- 
lowing day  within  which  to  perform,  no 
portion  of  the  third  day  is  included.  Eopes 
V.  Rosenf eld's  Sons,  145  Cal.  671;  79  Pac. 
354. 


Transfer  of  holiday  from   Sunday  to   Monday. 
See  note  19  L.  R.  A.   320. 


Last  day  falling  on  holiday.    See  post,  §  13. 
Similar    provision.     See    Pol.    Code,  §  11. 

Legislation  §  11.      1.   Enacted  March  11,  1S72. 
3.   Amended  by  Code  Amdts.  1873-74,  p.  280, 
adding  "the  fourth  day  of  July." 

3.  Repeal  by  Stats.  1901,  p.  117;  uncon- 
stitutional.   See  note  ante,  §  5. 

4.  Amended  by  Stats.  1909,  p.  22,  adding 
(1)  "the  thirtieth  day  of  May"  and  (2)  "the 
ninth  day  of  September,  the  twelfth  day  of 
October." 

Holiday  falling  on  Sunday.  Where  any 
of  the  holidays   mentioned  in  this   section 

§  12.     Computation  of  time.     The  time  in  which  any  act  provided  by  law 

is  to  be  done  is  computed  by  excluding  the  first  day,  and  including  the  last, 

unless  the  last  day  is  a  holiday,  and  then  it  is  also  excluded. 

Supervisors,  33  Cal.  487;  Hagenmeyer  v. 
Board  of  Equalization,  82  Cal.  214;  23 
Pac.  14. 

Day  of  the  act  excluded.  It  has  been 
uniformly  held,  from  an  early  day,  to  be 
the  rule  in  this  state,  that,  in  the  compu- 
tation of  time,  the  first  day  is  excluded 
and  the  last  day  included;  differing  from 
the  English  practice,  which  was  the  inclu- 
sive method,  under  which  the  time  began 
to  run  upon  the  day  of  the  happening  of 
the  event   (Scoville  v.  Anderson,  131  Cal. 


Time,  tow  computed.  Year,  week,  and  day, 
defined.     Pol.   Code.  §§  3255   et   seq. 

Similar  provisions.  See  Civ.  Code,  §10;  Pol. 
Code,  §  11. 


Legislation  §  12.       Enacted  March  11,  1873. 

Time,  when  directory.  The  time  pre- 
scribed to  a  public  body,  in  the  exercise  of 
a  function  in  which  the  public  is  con- 
cerned, is  merely  directory,  unless  there 
are  negative  words  restraining  the  exer- 
cise of  the  power  to  that  time.  Tuohy  v. 
Chase,   30   Cal.    524;    People   v.   Board    of 


13 


PRELIMINARY   PROVISIONS. 


12 


590;  63  Pae.  1013 j  Dingley  v.  McDonald, 
124  Cal.  90;  56  Pac.  790;  Perham  v. 
Kuper,  61  Cal.  331;  Misch  v.  Mayhew,  51 
Cal.  514;  Hagenmeyer  v.  Board  of  Equal- 
ization, 82  Cal.  214;  23  Pac.  14;  Landre- 
gan  V.  Peppin,  86  Cal.  122;  24  Pac.  859; 
Derby  v.  Modesto,  104  Cal.  515;  38  Pac. 
9O0;  Bates  v.  Howard,  105  Cal.  173;  38 
Pac.  715;  Bellmer  v.  Blessington,  136  Cal. 
3;  68  Pac.  Ill);  but,  under  our  rule,  the 
last  day  cannot  be  excluded  also.  Lan- 
dregan  v.  Peppin,  86  Cal.  122;  24  Pac.  859. 
Apparently,  however,  the  inclusive  rule 
seems  to  have  obtained  at  one  time  in  this 
state.  People  v.  Clark,  1  Cal.  406;  Price 
V.  Whitman,  8  Cal.  412.  The  exclusive 
rule  applies,  except  where  the  intent  to  in- 
clude is  apparent.  Savings  and  Loan  So- 
cietv  v.  Thompson,  32  Cal.  347;  Derby  v. 
Modesto,  104  Cal.  515;  38  Pac.  900;  Peti- 
tion of  Los  Angeles  Trust  Co.,  158  Cal. 
603;  112  Pac.  56. 

Last  day  falling  on  a  holiday.  The  last 
dav  is  to  be  excluded  when  it  falls  upon  a 
holiday  (Muir  v.  Galloway,  61  Cal.  498; 
Estate  of  Eose,  63  Cal.  346;  Northey  v. 
Bankers'  Life  Ass'n,  110  Cal.  547;  42  Pac. 
1079;  Eobinson  v.  Templar  Lodge,  114  Cal. 
41;  45  Pac.  998;  Crane  v.  Crane,  121  Cal. 
99;  53  Pac.  433;  Frassi  v.  McDonald,  122 
Cal.  400;  55  Pac.  139,  772;  Baxter  v.  Vine- 
land  Irrigation  District,  136  Cal.  185;  68 
Pac.  601;  Blackwood  v.  Cutting  Packing 
Co.,  71  Cal.  461;  12  Pac.  493;  Jenness  v. 
Bowen,  77  Cal.  310;  19  Pac.  522) ;  but  this 
rule  does  not  apply  to  matters  pending  in 
the  supreme  court,  that  court  being  always 
open  for  the  transaction  of  business  (x\d- 
ams  v.  Dohrmann,  63  Cal.  417),  nor  does  it 
apply  to  other  courts,  where  the  business 
is  not  judicial.  Eeclamation  District  v. 
Hamilton.  112  Cal.  603;  44  Pac.  1074. 

Definition  of  terms.  A  day  is  defined 
by  §  3259  of  the  Political  Code  as  the 
period  of  time  between  any  midnight  and 

§  13.     Certain  acts  not  to  be  done  on  holidays.     Whenever  any  act  of  a 

secular  nature,  other  than  a  work  of  necessity  or  mercy,  is  appointed  by  law 
or  contract  to  be  performed  upon  a  particular  day,  which  day  falls  upon  a 
holiday,  such  act  may  be  performed  upon  the  next  business  day  with  the 
same  effect  as  if  it  had  been  performed  upon  the  day  appointed. 

See  Civ.  Code,  §11;  Pol.  v.  Hamilton,  112  Cal.  603;  44  Pac.  1074. 
Thus,  a  criminal  information  maj^  be  filed 
(People  V.  Helm,  152  Cal.  532;  93  Pac.  99), 
and  a  sale  may  be  made  by  a  tax-collector 
(Young  V.  Patterson,  9  Cal.  App.  469;  99 
Pac.  552),  on  a  legal  holiday. 

Contract  to  be  performed  on  holiday. 
Where  the  day  of  performance  of  a  con- 
tract falls  upon  a  holiday,  it  may  be  per- 
formed on  the  succeeding  day.  Hibernia 
Sav.  &  L.  Soc.  V.  O'Grady,  47  Cal.  579; 
Northey  v.  Bankers'  Life  Ass'n,  110  Cal. 
547;  42  Pae.  1079.  And  this  is  the  rule  in 
cases  of  stipulations  of  attorneys  (Black- 
wood V.  Cutting  Packing  Co.,  71  Cal.  461; 


the  midnight  following;  and  fractions  of 
a  day  are  not  regarded  in  law,  unless  the 
order  of  successive  events  is  to  be  ascer- 
tained, or  justice  requires  it  (Derby  v. 
Modesto,  104  Cal.  515;  38  Pac.  900;  People 
V.  Clark,  1  Cal.  406;  Craig  v.  Godfrey,  1 
Cal.  415;  54  Am.  Dec.  299);  and  where  the 
order  of  occurrence  involves  the  legality 
or  propriety  of  private  rights,  fractions 
may  be  regarded.  People  v.  Beatty,  14  Cal. 
566;  Scoville  v.  Anderson,  131  Cal.  590; 
63  Pae.  1013.  A  week  is  defined  by  the 
codes  to  be  a  period  of  seven  consecutive 
days.  Derby  v.  Modesto,  104  Cal.  515;  38 
Pac.  900.  A  month  is  a  calendar  month, 
and  not  a  lunar  month,  unless  otherwise 
designated.  Videau  v.  Griffin,  21  Cal.  389; 
Savings  and  Loan  Society  v.  Thompson,  32 
Cal.  347;  Sprague  v.  Norway,  31  Cal.  173. 
A  year  is  three  hundred  and  sixty-five 
days;  a  half-year,  one  hundred  and  eighty- 
two  days;  a  quarter-year,  ninety-one  days; 
the  added  day  of  a  leap-year,  and  the  day 
immediately  preceding  it,  if  they  occur  in 
any  such  period,  must  be  reckoned  to- 
gether as  one  day.  Pol.  Code,  §3257; 
Brown  v.  Anderson,  77  Cal.  236;  19  Pac. 
487. 

Computation  of  time.  See  notes  7  Am.  Dec. 
250;    78   Am.    St.  Rep.   372. 

How  time  within  which  an  act  is  to  be  done 
is  computed.     See  note   46   Am.  Rep.   410. 

Inclusion  of  day  of  accrual  of  action  in  com- 
puting limitation  against  action.  See  notes  Ann. 
Gas.   1913D,   1068;    12   Ann.  Gas.   58. 

Holidays  as  first  or  last  day  of  time  computed. 
See  note  49  L.  R.  A.  203. 

CODE  COMMISSIONERS'  NOTE.  Price  v. 
Whitman,  8  Cal.  412;  Iron  Mountain  Co.  v. 
Haight,  39  Cal.  540;  Soldier's  Voting  Bill,  45 
N.  H.  612.  A  day  is  not  to  be  considered  a 
imit  to  the  prejudice  of  the  rights  of  a  party, 
and  an  examination  may  be  had  as  to  the  very 
point  of  time  when  the  act  was  done.  Craig  v. 
Godfroy,  1  Cal.  415,  54  Am.  Dec.  299;  People 
V.  Clark,  1  Gal.  406.  Whenever  time  becomes 
important,  courts  will  inquire  into  a  day,  or  even 
a  fractional  portion  of  a  day.  People  v.  Beatty, 
14  Cal.   566. 


Similar   provisions. 
Code,  §  13. 

Legislation  §  13.       Enacted  March  11,  1872. 

Where  day  appointed  by  law  is  a  holi- 
day. The  supreme  court,  under  the  con- 
stitution, being  always  open  for  the  trans- 
action of  business,  is  not  affected  by  this 
section  (Adams  v.  Dohrmann,  63  Cal.  417; 
Herrlich  v.  McDonald,  83  Cal.  505;  23  Pac. 
10;  Niles  v.  Edwards,  95  Cal.  41;  30  Pae. 
134);  neither  is  the  performance  of  min- 
isterial acts  affected  thereby.  Young  v. 
Patterson,  9  Cal.  App.  469;  99  Pac.  552; 
Heisen  v.  Smith,  138  Cal.  216;  94  Am.  St. 
Kep.  39;  71  Pac.  180;  Eeclamation  District 


13 


SEAL,  DEFINED — JOINT   AUTHORITY. 


§§  H  15 


12  Pac.  493);  and  if  the  time  expires  on 
a  holiday,  and  the  next  day  is  a  Sunday, 
the  act  may  be  performed  on  the  succeed- 
ing Monday  (Crane  v.  Crane,  121  Cal.  99; 
53  Pac.  433);  and  if  the  last  day  for  the 
performance  of  an  act  falls  on  a  Sunday, 
it  may  bo  done  on  the  following  Monday. 
Wilcox  V.  Engebretsen,  lUO  Cal.  2SS ;  116 
Pac.  750.  This  section  amounts  to  no  more 
than  a  legal  permission  for  the  postpone- 
ment of  the  act,  and  does  not  prohibit  it 
from  being  done  upon  the  day  designated. 
People  V.  Helm,  152  Cal.  532;   93  Pac.  99. 

§  14.  "Seal"  defined.  When  the  seal  of  a  court,  public  officer,  or  per- 
son is  required  b}^  law  to  be  affixed  to  any  paper,  the  word  "seal"  includes 
an  impression  of  such  seal  upon  the  paper  alone  as  well  as  upon  wax  or  a 
wafer  affixed  thereto. 


Computation  of  time  for  performance  of  act 
required  by  statute,  when  last  day  falls  on  Sun- 
day. .Sco  iKitcs  1:0  Ann.  Ciis.  1318;  7  Ann.  Ca.s. 
3li.");   38   L.  R.  A.   (N.   S.)    11  ()2. 

Validity  of  contract  completed  on  secular  day. 
where  preliminary  negotiations  are  conducted  on 
Sunday.     Sfi-   notp   1  (i   Ann.  «';is.  O.'fJ. 

Computation  of  days  of  grace  allowed  for  tj.tv- 
ment  of  insurance  premium  or  assessment,  where 
date  of  payment  or  expiration  of  such  period  falls 
on  Sunday  or  holiday.  See  nole  23  L.  li.  A. 
(N.  S.)   7J9. 

CODE  COMMISSIONERS'  NOTE.  Sunday  is 
not  ri'};ard<'(l.  .Mcliill  v.  Hank  of  Uuitcd  Slates, 
12   Wheat.   511;    6  L.   Kd.    711. 


Seals.    See  post,  §§  147-153,  1929-1934. 
Abolition  of  seals.     See  Civ.  Code,  §  1629. 
Similar   provision.    See   Pol.   Code,  §  14. 

Legislation  S  14.       Enacted  March  11,  1872. 

Seal,  defined.  A  seal,  at  common  law, 
meant  an  impression  upon  wax  or  wafer, 
or  some  other  tenacious  substance  capable 
of  being  impressed;  but  in  this  state  a  seal 
is  sufficient,  where  the  impression  is  made 
upon  paper  only,  and  not  upon  wax  (Con- 
nolly V.  Goodwin,  5  Cal.  220;  Hastings  v. 
Vaughn,  5  Cal.  Slo);  and  it  may  be  made 
as  well  by  a  pen  as  by  a  stamp.  Hastings 
V.  Vaughn,  5  Cal.  315.  The  court  will  as- 
sume from  the  word  "(Seal),"  after  the 
certificate  of  a  notary,  printed  in  a  tran- 
script, that  the  original  was  properly  exe- 
cuted. Touchard  v.  Crow,  20  Cal.  150;  SI 
Am.  Dec.  108.  In  copying  a  sealed  instru- 
ment, it  is  not  necessary  to  transcribe  the 
seal.  Jones  v.  Martin,  16  Cal.  165;  Smith 
V.  Dall,  13  Cal.  510.  The  omission  of  the 
county  recorder  to  make  any  mark  for  the 
seal  does  not  vitiate  the  writing.  Smith 
V.  Dall,  13  Cal.  510. 

Seal  of  court.  The  seal  affixed  to  a  doc- 
ument, bearing  the  inscription  of  the  court 


to  which  it  belongs,  sufficiently  designates 
the  court,  and  the  omission  to  designate 
the  officer's  official  connection  with  the 
court  is  immaterial.  Touchard  v.  Crow,  20 
Cal.  150;   81  Am.  Dec.  108. 

Seal  of  corporation.  A  corporation  may 
adopt  the  private  seal  of  the  several  trus- 
tees, or  of  any  one  of  them  (Gashwiler  v. 
Willis,  33  Cal.  11;  91  Am.  Dec.  607);  but 
the  seal  of  an  individual,  when  not  so 
adopted  by  the  corporation,  is  not  suffi- 
cient. Kichardson  v.  Scott  River  Water 
etc.   Co.,  22  Cal.  150. 

"Seal,"  defined.    See  note  50  Am.  St.  Rep.  156. 

What  is   "seal."    See   note  Ann.  Gas.  1912C,  42. 

"Seal,"  as  suf&cient  seal.  See  note  11  Ann. 
Cas.    1110. 

"L.  S.,"  as  sufficient  seal.  See  note  11  Ann. 
Cas.  250. 

Sufficiency  of  scroll  as  seal.  See  note  1  L.  R. 
A.  861. 

CODE  C03.IMISSI0NERS'  NOTE.  An  impres- 
sion upon  paper  constitutes  a  gond  seal.  Con- 
nolly V.  Goodwin,  5  Cal.  220.  There  is  "no 
good  reason  why  such  impression  should  not  be 
m.'.de  with  a  pen  as  well  as  with  what  is  techni- 
cally a  stamp.  The  object  is  to  give  character 
to  the  instrument.  .  .  .  This  is  as  well  effected 
by  a  scrawl  witli  the  word  'seal'  within  it,  or 
with  the  initials  'L.  S.'  "  Hastings  v.  Vaughn,  5 
Cal.  315. 


§  15.  Joint  authority.  Words  giving  a  joint  authority  to  three  or  more 
public  officers  or  other  persons  are  construed  as  giving  such  authority  to  a 
majority  of  them,  unless  it  is  otherwise  expressed  in  the  act  giving  the  au- 
thority. 

Similar    provisions.     See    Civ.    Code,  §12;    Pol. 
Code,  §  15. 


Legislation  §  15.       Enacted  March  11,  1S73. 

Authority  of  majority.  Before  the  adop- 
tion of  this  section,  a  grant  of  joint  au- 
thority required  the  presence  and  partici- 
pation of  the  whole  number  to  whom  the 
authority  was  granted,  a  majority  of 
whom,  however,  could  decide  the  question 
(Talcott  V.  Blanding,  54  Cal.  289;  People 
V.  Coghill,  47  Cal.  361;   Wilbur  v.  Lynde, 


49  Cal.  290;  19  Am.  Rep.  645;  People  v. 
Aheru,  52  Cal.  208);  but  this  section  au- 
thorizes a  majority  of  a  quorum  to  act, 
and  to  decide  any  question  (People  v.  Har- 
rington, 63  Cal.  257;  People  v.  Hecht,  105 
Cal.  621;  45  Am.  St.  Rep.  96;  27  L.  R.  A. 
203;  38  Pac.  941);  so  a  majority  of  the 
grand  jury  may  present  an  accusation,  if 
not  an  indictment.  Coffey  v.  Superior 
Court,  2  Cal.  App.  457;  S3  Pac.  580. 


§§  16,  17  PRELIMINARY   PROVISIONS.  14 

§  16.  Words  and  phrases.  Words  and  phrases  are  construed  according 
to  the  context  and  the  approved  usage  of  the  language ;  but  technical  words 
and  phrases,  and  such  others  as  have  acquired  a  peculiar  and  appropriate 
meaning  in  law,  or  are  defined  in  the  succeeding  section,  are  to  be  construed 
according  to  such  peculiar  and  appropriate  meaning  or  definition. 

Similar   provisions.     See   Civ.    Code,  §  13;    Pol.  (Central  Pacific   R.  E.  Co.  v.  Beal,  47  Cal. 

^'"^'''  ^  ^^-  151);  and  if  it  has  both  a  popular  and  a 

Legislation  §  16.      Enacted  March  11,  1873.  technical  signification,  it  will  be  given  its 

Construction  of  words  and  phrases.  The  popular  meaning,  unless  the  subject  or  con. 
rule  here  announced  prevailed  before  the  text  indicates  that  it  was  used  in  its  tech- 
adoption  of  the  codes,  and  applies  alike  to  ^^^^^  sense.  Weill  v.  Keufield,  54  Cal.  Ill; 
contracts,  wills,  statutes,  and  the  constitu-  Towle  v.  Matheus,  130  Cal.  o74;  C2  Pac. 
tion.  Quigley  v.  Gorham,  5  Cal.  418;  63  10^4.  The  word  "assessment,"  m  §  4  of 
Am.  Dec.  139;  Gross  v.  Fowler,  21  Cal.  article  VI  of  the  constitution,  conferring 
392;  Appeal  of  Houghton,  42  Cal.  35;  Peo-  appellate  jurisdiction  in  cases  at  law  m- 
ple  V.  Eddv,  43  Cal.  331;  13  Am.  Eep.  143;  volvmg  "the  legality  of  tax,  impost,  as- 
Weill  V.  Kenfield,  54  Cal.  Ill;  San  T'ran-  sessment,  toll,  or  municipal  fine,"  refers  to 
Cisco  V.  Flood,  64  Cal.  504;  2  Pac.  264;  assessments  relating  to  public  taxation,  or 
Cottle  V.  Spitzer,  65  Cal.  456;  52  Am.  Rep.  'to  raise  funds  for  local  public  improve- 
305-  4  Pac    435.  ments:   it  has  no  reference  to  assessments 

Words  of  common  use.     Words  of  com-  of  corporate  stock.    Bottle  Mining  etc.  Co. 

mon  use  arc  to  be  taken  in  their  plain  and  v.  Kern,  154  Cal.  96;  97  Pac.  25.     The  word 

ordinary     import;      forced     constructions,  "near,"    as    used   m    the    street-assessment 

which   extend   or  limit  the  terms,  are   not  law,  does  not  signify  any  precise  measure 

permissible.     Sprague   v.   Norway,    31   Cal.  of  distance;   it   is   a  relative  term,  and  its 

173;    Rosenberg    v.    Frank,    58  'Cal.    387;  meaning  must   be   determined  by   a  refer- 

Miller  v.  Dunn,  72  Cal.  462;  1  Am.  St.  Rep.  ence    to   the    subject-matter.     Haughawout 

67-  14  Pac.  27.  v-  Percival,  161  Cal.  491;  Ann.  Cas.  1913D, 

Teclmicarwords.     Technical  words  will  H^;   "L19  Pac.  649.     The  words  "husband" 

be  presumed  to  be  used  in  a  technical  sense  and   "wife,"   as    applied   to   domestic   rela- 

(Bruner  v.  Superior  Court,  92  Cal.  239,  28  tions,   have   each   bitt   one   meaning:     'hus- 

Pac.  341),  unless  a  different  intent  is  mani-  band,"  a  man   that   has   a  wife;   "wife,"  a 

fest  from  the  context.     Estate  of  Lufkin,  woman  that  has  a  husband;  the  words  can- 

131  Cal.  291;   63  Pac.  469.     If  a  technical  ^^ot   mean   an   unmarried   man   and   an  un- 

word  is  manifestly  used  in  an  untechnical  married  woman,  nor  a  divorced  man  and  a 

sense,  however,  the   court  will  give  it  the  divorced   woman.     Zanone   v.    Sprague,    16 

meaning   intended   by   the   party   using   it  ^^^-  "^PP-  3^3;  116  Pac.  898. 

§  17.  Certain  terms  used  in  this  code  defined.  Words  used  in  this  code 
in  the  present  tense  include  the  future  as  well  as  the  present ;  words  used 
in  the  masculine  gender  include  the  feminine  and  neuter;  the  singular 
number  includes  the  plural,  and  the  plural  the  singular;  the  word  "person" 
includes  a  corporation  as  well  as  a  natural  person;  the  word  "county" 
includes  "city  and  county";  writing  includes  printing  and  typewriting; 
oath  includes  affirmation  or  declaration ;  and  every  mode  of  oral  statement, 
under  oath  or  affirmation,  is  embraced  by  the  term  "testify,"  and  every 
written  one  in  the  term  "depose" ;  signature  or  subscription  includes  mark, 
when  the  person  cannot  write,  his  name  being  written  near  it  by  a  person 
who  writes  his  own  name  as  a  witness;  provided,  that  when  a  signature  is 
by  mark  it  must,  in  order  that  the  same  may  be  acknowledged  or  may  serve 
as  the  signature  to  any  sworn  statement,  be  witnessed  by  two  persons  wdio 
must  subscribe  their  own  names  as  witness  thereto. 

The  following  words  have  in  this  code  the  signification  attached  to  them  in 
this  section,  unless  otherwise  apparent  from  the  context: 

1.  The  word  "property"  includes  both  real  and  personal  property; 

2.  The  words  "real  property"  are  coextensive  with  lands,  tenements,  and 
hereditaments ; 


15 


WORDS   AND   PHRASES,  DEFINED. 


§17 


3.  The  words  "personal  property"  include  money,  goods,  chattels,  things 
in  action,  and  evidences  of  del^t; 

4.  The  word  "month"  means  a  calendar  month,  unless  otherwise  ex- 
pressed; 

5.  The  word  "will"  includes  codicil; 

6.  The  word  "writ"  signifies  an  order  or  precept  in  writing,  issued  in 
the  name  of  the  people,  or  of  a  court  or  judicial  officer;  and  the  word  "pro- 
cess" a  writ  or  summons  issued  in  the  course  of  judicial  proceedings; 

7.  The  word  "state,"  when  applied  to  the  different  parts  of  the  United 
States,  includes  the  District  of  Columbia  and  the  territories;  and  the  words 
"United  States"  may  include  the  district  and  territories; 

8.  The  word  "section"  whenever  hereinafter  employed,  refers  to  a  sec- 
tion of  this  code,  unless  some  other  code  or  statute  is  expressly  mentioned. 

9.  The  word  "affinity"  when  applied  to  the  marriage  relation,  signifies 
the  connection  existing  in  consequence  of  marriage,  between  each  of  the 
married  persons  and  the  blood  relatives  of  the  other. 

13.  Words  used  in  the  present  tense  include  the 
future,  but  exclude  the  past.  14.  The  word 
'will'  includes  codicils.  15.  The  word  'writ' 
signifies  an  order  or  precept  in  writing,  issued  in 
the  name  of  the  people,  or  of  a  court,  or  judicial 
officer.  IG.  'Process'  is  a  writ  or  summons 
issued  in  the  course  of  judicial  proceedings.  17. 
llie  word  'vessel,'  when  used  with  reference  to 
shipping,  includes  ships  of  all  kinds,  steamboats, 
ai;d  steamships,  canal-boats,  and  every  structure 
adapted    to    be    navigated    from    place    to    place. 

18.  The  term  'peace-officer'  signifies  any  one  of 
the  oflicers  mentioned  in  §  817  of  the  Penal  Code. 

19.  The  term  'magistrate'  signifies  any  one  of 
the   oflicers   mentioned  in  §  806  of  the  Penal  Code." 

3.  Amended  by  Stats.  1873-74,  p.  280,  to 
read  as  at  present,  except  for  the  changes  of 
1903. 

3.  Amendment  by  Stats.  1891,  p.  117;  un- 
constitutional.    See  note  ante,  §  .5. 

4.  Amended  by  Stats.  1903,  p.  134,  (1) 
adding  the  clause,  "the  word  'county'  includes 
'city  and  county,'  "  after  the  words  "a  naturai 
person";  (2)  changing,  after  words  "written 
near  it,"  from  "and  witnessed  by  a  person  who 
writes  his  own  name  as  a  witness"  to  read  to 
end  of  paragraph  as  at  present;  and  (3)  adding 
subds.  8,   9. 

Gender.  The  masculine  includes  the 
feminine  and  the  neuter  gender.  Foltz  v. 
Hoge,  54  Cal.  28;  People  v.  Pico,  62  Cal. 
50;  People  v.  Monteith,  73  Cal.  7;  1-i  Pac. 
373.  Thus,  the  term  "horse"  includes  all 
animals  of  the  horse  kind,  male  and  fe- 
male (People  V.  Pico,  62  Cal.  50),  as  well 
as  a  gelding.  People  v.  Monteith,  73  Cal. 
7;   14   Pac.  373. 

Number.  The  singular  number  includes 
the  plural,  and  vice  versa.  Simonson  v. 
Burr,  121  Cal.  582;  54  Pac.  87;  Quint  v. 
Dimond,  135  Cal.  572;  67  Pac.  1034;  Down- 
ing V.  Rademaeher,  136  Cal.  673;  69  Pac. 
415;  People  v.  Kelly,  146  Cal.  11&;  79 
Pac.  846.  In  applying  this  section  to  the 
construction  of  §§  938,  941,  and  963,  post, 
such  sections  must  be  read  as  if  the  words 
"appeal,"  "appellant,"  and  "party  ag- 
grieved" were  plural.  Estate  of  Sutro,  152 
Cal.  249;  92  Pac.  1027. 

Person.  The  word  "person"  includes  an 
artificial  as  well  as  a  natural  person. 
Spring  Valley   Water  Works  v.  Schottler, 


Notice,  defined.    See  Pol.  Code,  §  4175. 

Process,  defined.    See  Pol.  Code,  §  4175. 

Words  used  in  boundaries,  defined.  See  Pol. 
Code,  §§  390:i-39l)7. 

Words  and  phrases,  defined.  See  Pen.  Code, 
§  7;   Pol.   Code,  §  17;   Civ.  Code,  §  14. 

Legislation  §  17.  1.  Enacted  March  11,  1872, 
based  on  Practice  Act,  §  (347,  which  read:  "Words 
used  in  this  act  in  the  present  tense  shall  be 
deemed  to  include  the  future  as  well  as  the 
present;  words  used  in  the  singular  number  shall 
be  deemed  to  include  the  plural,  and  the  plural 
the  singular;  writing  shall  be  deemed  to  include 
printing  or  printed  paper;  oath  to  include  affirma- 
tion or  declaration;  signature  or  subscription,  1;o 
include  mark  when  the  person  cannot  write,  his 
name  being  written  near  it,  and  witnessed  by  a 
person  who  writes  his  own  name  as  a  witness." 
As  enacted  in  1872,  §  17  read:  "Whenever  the 
terms  mentioned  in  this  section  are  employed  m 
this  code  they  are  employed  in  the  senses  here- 
after affixed  to  them,  except  where  a  different 
sense  plainly  appears:  1.  'Ihe  term  'signature' 
includes  any  name,  mark,  or  sign,  written  with 
intent  to  authenticate  any  instrument  or  writing. 
2.  The  term  'writing'  includes  both  printing  a.iu 
writing.  3.  The  term  'land,'  and  the  phrases 
'real  estate'  and  'real  property,'  includes  lands, 
tenements,  and  hereditaments,  and  all  rights 
thereto,  and  interests  therein.  4.  The  words 
'personal  property'  include  money,  goods,  chat- 
tels, evidence  of  debt,  and  'things  in  action.'  5. 
The  word  'property'  includes  personal  and  real 
property.  G.  Ihe  word  'month'  means  a  calen- 
dar month,  unless  otherwise  expressed;  and 
the  word  'year,'  and  also  the  abbreviation  'A.  D..' 
is  equivalent  to  the  expression  'year  of  our 
Lord.'  7.  The  word  'oath'  includes  'affirmation' 
in  all  cases  where  an  affirmation  may  be  substi- 
tuted for  an  oath;  and  in  like  cases  the  word 
'swear'  includes  the  word  'affirm.'  Every  mode 
of  oral  statement  under  oath  or  affirmation  is 
embraced  by  the  term  'testify,'  and  every  writ- 
ten one  in  the  term  'depose.'  8.  The  word 
'state,'  when  applied  to  the  different  parts  of 
the  United  States,  includes  the  District  of  Colum- 
bia and  the  territories;  and  the  words  'United 
States'  may  include  the  district  and  territories. 
9.  Wh3re  the  term  'person'  is  used  in  this  code 
to  desigaate  the  party  whose  property  may  be 
the  subject  of  any  offense,  action,  or  proceeding, 
it  includes  this  state,  any  other  state,  govern- 
ment, or  country  which  may  lawfully  own  any 
property  within  this  state,  and  all  public  and 
private  corporations  or  joint  associations,  as  well 
as  individuals.  10.  The  word  'person'  includes 
bodies  politic  and  corporate.  11.  The  singular 
number  includes  the  plural,  and  the  plural  the 
singular.  12.  Words  used  in  the  masculine  gen- 
der comprehend  as  well  the  feminine  and  neuter. 


§18 


PRELIMINARY   PROVISIONS. 


16 


62  Cal.  69;  Douglass  v.  Pacific  Mail  S.  S. 
Co.,  4  Cal.  304;  Central  Pacific  E.  K.  Co.  v. 
State  Board  of  Equalization,  60  Cal.  35; 
People  V.  Eiverside,  66  Cal.  2SS;  5  Pac. 
350. 

Writing  A  printed  signature  instead  of 
a  written  one  is  suflicient,  when  appended 
to  a  publislied  resolution  of  a  board  of 
supervisors  (Williams  v.  McDonald,  58 
Cal.  527);  and  an  attorney's  printed  sig- 
nature to  a  pleading  will  not  render  void 
a  judgment.  Hancock  v.  Bowman,  49  Cal. 
413.  Though  not  expressly  authorized  by 
statute,  the  printed  signature  of  the  clerk 
is  sufficient,  where  the  seal  of  the  court  is 
attached  to  the  document  (Ligare  v.  Cali- 
fornia Southern  E.  E.  Co.,  76  Cal.  610;  18 
Pac.  777) ;  and  the  facsimile  of  an  auto- 
graph may  be  adopted  by  a  person,  and 
papers  issued  with  such  an  autograph 
printed  thereon,  issued  by  his  direction, 
are  valid.  Pennington  v.  Baehr,  48  Cal. 
565. 

Property.  The  word  "property,"  when 
used  in  its  ordinary,  popular  sense,  in- 
cludes not  only  visible  and  tangible  prop- 
erty, but  choses  in  action  also,  such  as 
solvent  debts  secured  by  mortgage  (Peo- 
ple V.  Eddy,  43  Cal.  331;  13  Am.  Eep.  143); 
and  the  right  to  appeal  an  action  is  prop- 
erty (People  V.  Cadman,  57  Cal.  562);  but 
the  word  "property"  does  not  include 
"credits,"  within  §  13  of  article  XI  of  the 
constitution  of  1849,  concerning  revenue 
(People  V.  Hibernia  Sav.  &  L.  Soc,  51  Cal. 
243;  21  Am.  Eep.  704;  Bank  of  Mendo- 
cino V.  Chalfant,  51  Cal.  369;  Mackay  v. 
San  Francisco,  113  Cal.  392;  45  Pac.  696); 
nor  does  it  include  a  business,  occupation, 
or  calling  (People  v.  Coleman,  4  Cal.  46; 
60  Am.  Dec.  581);  nor  a  license  to  retail 
intoxicating  liquors.  Hevren  v.  Eeed,  126 
Cal.  219;  58  Pac.  536;  Ex  parte  Christen- 
sen,   85   Cal.   208;   24  Pac.   747. 

Real  property.     "Eeal  property"  is  coex- 


tensive with  lands,  tenements,  and  here- 
ditaments. Summerville  v.  Stockton  Mill- 
ing Co.,  142  Cal.  529;  76  Pac.  243. 

Personal  property.  A  promissory  note, 
under  the  third  subdivision  of  this  section, 
is  personal  property  (Hoxie  v.  Bryant,  131 
Cal.  85;  63  Pac.  153),  as  is  also  money 
(Butler  V.  Baber,  54  Cal.  178);  and  an  un- 
divided interest  in  real  property  converted 
into  a  right  to  receive  money  in  lieu 
thereof.  John  M.  C.  Marble  Co.  v.  Mer- 
chants' Nat.  Bank,  15  Cal.  App.  347;  115 
Pac.  59. 

Undertaking  on  appeal.  This  section 
does  not  apply  to  an  undertaking  on  ap- 
peal; its  signification  is  to  be  determined 
from  the  language  used.  Bergevin  v. 
Wood,  11   Cal.  App.   643;   105  Pac.  935. 

"At."  The  word  "at,"  when  applied  to 
the  place  or  location  of  an  object  is  not 
treated  as  definitely  locative;  it  denotes 
nearness  or  proximity,  and  is  less  definite 
than  "in"  or  "on."  Los  Angeles  County  v. 
Hannon,  159-  Cal.  37;  Ann.  Cas.  1912B, 
1065;   112  Pac.   878. 

"Person,"  as  including  private  corporation.  See 
note  20  Ann.  Cas.   737. 

Who  or  wbat  is  included  in  the  term  "person." 
See  note  19  L.  R.  A.  222. 

What  is  sufficient  signature.  See  note  55  Am. 
Rep.   651. 

Signature  by  mark.    See  note  22  L.  R.  A.  370. 

"Deposition,"  defined.    See  note  13  L.  R.  A.  366. 

As  to  whether  ability  to  write  invalidates  sig- 
nature made  by  mark  or  aid  of  other  person 
guiding  pen.     See  note  7  L.  R.  A.    (N.  S.)    1193. 

"Property,"  as  including  standing  timber, 
within  meaning  of  fire-insurance  policy.  See  note 
6   Ann.    Cas.    569. 

"Property,"  within  false-pretenses  statute,  as 
including  bills  and  notes.  See  note  9  Ann.  Cas. 
970. 

"Personal  property,"  in  will,  as  including 
money.      See   note   Ann.   Cas.    1913D.   857. 

What  is  "month,"  in  computation  of  time. 
See   note   78   Am.    St.   Rep.    384. 

Meaning  of  "month."  See  note  12  L.  R.  A. 
770. 

"Affinity,"  defined.     See  note  11  L.  R.  A.  630. 


§  18.  Statutes,  etc.,  inconsistent  with  code  repealed.  No  statute,  law,  or 
rule  is  continued  in  force  because  it  is  consistent  with  the  provisions  of  this 
code  on  the  same  subject;  but  in  all  cases  provided  for  by  this  code,  all 
statutes,  laws,  and  rules  heretofore  in  force  in  this  state,  whether  consistent 
or  not  with  the  provisions  of  this  code,  unless  expressly  continued  in  force 
by  it,  are  repealed  and  abrogated.  This  repeal  or  abrogation  does  not  re- 
vive any  former  law  heretofore  repealed,  nor  does  it  affect  any  right  already 
existing  or  accrued,  or  any  action  or  proceeding  already  taken,  except  as 
in  this  code  provided;  nor  does  it  affect  any  private  statute  not  expressly 
repealed. 


Effect  of  code  on  prior  statutes.  See  ante,  §  8; 
also   repealing  clause   at   the   end  of   this   code. 

Limitations,  effect  of  code  on.     See  ante,  §  9. 

Retroactive  effect.    See  ante,  §  3. 

Statutes  continued  in  force.  See  Pol.  Code, 
5§  18,    10. 

Vested  rights.    See  ante,  §  8. 

Legislation  §  18.      1.  Enacted  March  11,  1873. 
2.   Amendment    by    Stats.    1901,    p.  118;    un- 
constitutional.   See  note  ante,  §  5. 


Cases  not  provided  for  by  the  code.     In 

cases  not  provided  for  by  the  code,  the 
existing  statutes  governing  the  same  are 
not  repealed  (Whitaker  v.  Haynes,  49  Cal. 
596;  Heppe  v.  Johnson,  73  Cal.  265;  14 
Pac.  833;  Wheatland  Mill  Co.  v.  Pirrie,  89 
Cal.  459;  26  Pac.  964;  Fanning  v.  Leviston, 
93    Cal.    186;    28    Pac.    943;    Golden    Gate 


17 


THIS  CODE,   HOW  CITED,  ENUMERATED,  ETC. 


§19 


Lumber  Co.  v.  Sahrbacher,  105  Cal.  114; 
38  Pac.  63o)  ;  nor  are  subsequent  statutes 
passed  at  the  same  sessiou.  Smith  v.  Mc- 
Dermott,  9;i   Cal.  421;   29  Pac.  34. 

Consistent  statutes.  Before  the  onait- 
ment  of  the  codes,  the  rule  was,  that, 
where  a  later  statute  showed  a  clear  in- 
tent to  prescribe  the  only  rule  which 
should  govern  in  the  cases  provided  for, 
the  former  statute  was  repealed  thereby, 
whether  consistent  or  inconsistent  (Sacra- 
mento V.  Bird,  15  Cal.  294;  Ex  parte 
Smith,  40  Cal.  419);  but  where  such  in- 
tent did  not  appear,  both  statutes  were 
allowed  to  stand  together,  unless  the  re- 
pugnancy between  them  was  irrecon- 
cilable.    Perry   v.   Ames,   26   Cal.   372. 

Inconsistent  provisions.  A  repeal  is 
either  by  express  words  or  by  necessary 
implication:  a  repeal  by  implication  takes 
place  whenever  it  is  apparent  from  the 
subsequent  legislation  that  the  legislature 
did  not  intend  that  the  former  act  should 
remain  in  force  (Christy  v.  Board  of  Su- 
pervisors, 39  Cal.  3);  but  repeals  by  im- 
plication are  not  favored  by  the  courts 
(Merrill  v.  Gorham,  6  Cal.  41;  Scofield  v. 
White,  7  Cal.  400;  People  v.  San  Fran- 
cisco etc.  R.  R.  Co.,  28  Cal.  254;  In  re  Yick 
Wo,  68  Cal.  294;  58  Am.  Rep.  12;  9  Pac. 
139);  and  it  is  only  where  there  is  a  plain 
and  unavoidable  repugnance  that  a  repeal 
by  implication  will  take  place  (Estate  of 
Wixom,  35  Cal.  320;  Ex  parte  Smith,  40 
Cal.  419;  People  v.  Linn,  23  Cal.  150;  Peo- 
ple V.  Sargent,  44  Cal.  430) ;  and  where 
the  former  statute  regulates  the  matter 
only  incidentally,  the  later  statute,  which 
is  made  to  govern  the  whole  subject-mat- 
ter, repeals  so  much  of  the  former  statute 
as  is  in  conflict  (Dobbins  v.  Board  of  Su- 
pervisors, 5  Cal.  414;  People  v.  McGuire, 
32  Cal.  140),  and  then  only  so  far  as  the 
repugnancy  extends  (Crosby  v.  Patch,  18 
Cal.  438);  but,  where  possible,  such  a  con- 
struction will  be  given  the  two  statutes  as 
will  enable  both  to  have  effect.  Crosby  v. 
Patch,  18  Cal.  438;  Pond  v.  Maddox,  38 
Cal.  572;  Cerf  v.  Reichert,  73  Cal.  360; 
15  Pac.  10. 

Express  continuance  in  force.  Where 
an  act  contains  a  clause  repealing  all  laws 
in  conflict  therewith,  a  previous  repugnant 
law  is  repealed  thereby,  unless  the  terms 
of  the  act  show  an  intention  to  keep  such 
previous  law  in  force  (People  v.  Grippen, 
20  Cal.  677);  but  where  such  an  act  does 
not  repeal  a  prior  act,  by  name,  on  the 
same  subject-matter,  it  leaves  in  force  such 
provisions  thereof  as  are  not  in  conflict 
with  the  later  act  (People  v.  Durick,  20 
Cal.  94)  ;  and  where  the  subsequent  stat- 
ute designates  certain  sections  or  portions 
of  the  former  act  as  repealed  by  implica- 
tion, the  portions  not  mentioned  are  con- 


tinued in  force  (Crosby  v.  Patch,  18  Cal. 
438),  and  in  such  cases  the  two  acts  will 
be  construed  together  as  one  act  (Man- 
•love  v.  White,  8  Cal.  376);  but  a  mere 
declaration  in  a  subsequent  statute,  that 
a  repealing  statute  shall  not  repeal  cer- 
tain laws  or  provisions  of  a  prior  act,  will 
not  exempt  them  from  the  repealing  eft'ect 
of  such  prior  act,  nor  will  it  revive  the 
laws  so  repealed.  State  v.  Conkling,  19 
Cal.  501. 

Revival  of  former  laws.  Where  a  gen- 
eral act  is  repealed  as  to  a  part  thereof, 
and  is  afterwards  amended  as  thus  par- 
tially repealed,  the  amendment  will  not 
revive  the  act  as  to  the  portion  repealed. 
People  v.  Tyler,  36  Cal.  522.  The  repeal 
of  a  repealing  act  does  not  revive  the  for- 
mer act,  nor  give  it  any  force  or  efi:eet;  to 
revive  the  former,  it  must  be  re-enacted 
(People  V.  Hunt,  41  Cal.  435;  Meek  v. 
McClure,  49  Cal.  623;  Thomason  v,  Rug- 
gles,  69  Cal.  465;  11  Pac.  20);  but  where 
a  subsequent  special  statute  controls  the 
provisions  of  a  general  statute,  the  latter 
is  revived  by  an  amendment  of  the  for- 
mer, calculated  to  give  effect  to  the  gen- 
eral law.  People  v.  Phopnix,  6  Cal.  92; 
People  V.  Wells,  11  Cal.  329. 

Effect  of  pending  proceeding.  The  por- 
tions of  the  amended  sections  of  the  code, 
which  are  merely  copied  in  the  new  en- 
actment without  change,  are  not  to  be 
considered  as  repealed  thereby  and  again 
re-enacted,  but  to  have  been  the  law  con- 
tinuously, and  the  new  parts  or  changed 
portions  are  not  to  be  taken  as  having 
been  the  law  at  any  time  prior  to  the 
passage  of  the  amended  act.  Central  Pa- 
cific R.  R.  Co.  V.  Shackelford,  63  Cal.  261; 
People  V.  Sutter  Street  Ry.  Co.,  117  Cal. 
604;  49  Pac.  736. 

Implied  repeal  of  statute  by  code,  revision  or 
re-enactment.  See  notes  88  Am.  St.  Kep.  287;  5 
Ann.  Cas.  502. 

CODE  COMMISSIONEES'  NOTE.  "Every 
statute  must  be  considered  accurding  to  what 
appears  to  have  been  the  intention  of  the  legis- 
lature, and  even  though  two  statutes  relating  to 
the  same  subject  be  not  in  terms  repugnant  or 
inconsistent,  if  the  latter  statute  was  clearly 
intended  to  prescribe  the  only  rule  which  should 
govern  in  the  case  provided  for,  it  will  be  con- 
strued as  repealing  the  original  act."  City  and 
County  of  Sacramento  v.  Bird,  15  Cal.  295; 
Sedgwick  on  Stat,  and  Const.  Law,  p.  124 :  also 
note  to  §  8,  ante.  "Whether  consistent  or  not 
with  the  provisions  of  this  code."  See  Perry  v. 
Ames,  26  Cal.  382,  where  it  is  held  that,  "as 
all  laws  are  presumed  to  be  passed  with  delib- 
eration, and  with  full  knowledge  of  all  existing 
ones  on  the  same  subject,  it  is  but  reasonable  to 
conclude  that  the  legislature,  in  passing  a  stat- 
ute, did  not  intend  to  interfere  with  or  abrogate 
any  former  law  relating  to  the  same  matter, 
unless  the  repugnancy  between  the  two  is  irrec- 
oncilable." See  also  Bowen  v.  Lease,  5  Hill,  221, 
from  which  this  language  is  quoted.  In  view  of 
this  decision,  the  language  of  the  text  was  neces- 
sary repealing  all  former  laws  on  the  same  sub- 
ject, whether  consistent  or  not. 


§  19.     This  act,  how  cited,  enumerated,  etc.     This  act,  whenever  cited, 
enumerated,   referred   to,   or   amended,   may   be    designated  simply   as   "The 


1  Fair. — 2 


§§  20-22 


PRELIMINARY   PROVISIONS. 


18 


Code  of  Civil  Procedure,"  adding,  when  necessary,  the  number  of  the  sec- 
tion. 

Legislation  §  19.      Enacted  March  11,  18T3. 

§  20.  Judicial  remedies  defined.  Judicial  remedies  are  such  as  are  ad- 
ministered by  the  courts  of  justice,  or  by  judicial  officers  empowered  for 
that  purpose  by  the  constitution  and  statutes  of  this  state. 

force  a  right  or  redress  an  injury."  Bouv.  Law 
Diet.  Tlie  definition  in  the  text  is  introduced  as 
a  concise  and  convenient  definition  of  judicial 
remedies.  Every  original  application  to  a  court 
of  justice  for  a  judgment  or  order  is  a  remedy. 
Belknap  v.  Waters,  11  N.  Y.  478;  Matter  of 
Cooper,  22  N.  Y.  87;  11  Abb.  Pr.  329;  20  How. 
Pr.    8. 

These  remedies  are  divided  into  two 


Legislation  §  20.     Enacted  March  11,  1872. 

CODE  COMMISSIONEES'  NOTE.  Introduced 
p<^  n  rnncise  and  convenient  definition  of  judicial 
remedies. 

Dei-nition  of  "remedy."  "The  action  or  means 
given  by  law  for  the  recovery  of  a  right."  Tom- 
liu's    Law     Diet.     "The    means    employed    to    en- 

§  21.     Division  of  judicial  remedies. 

classes : 

1.  Actions;  and, 

2.  Special  proceedings. 

Legislation  §  21.       Enacted  March  11,  1873. 

CODE  COMMISSIONERS'  NOTE.  In  the  Mat- 
ter of  Dodd.  27  N.  Y.  633,  a  special  proceeding 
is  said  to  be  limited  to  a  litigation  in  a  court 
of  justice.      So,  also,  the  same  views  are  held  in 


People  V.  Heath,  20  How.  Pr.  307;  People  v. 
Board  of  Police,  39  N.  Y.  506;  affirming  S.  C, 
40  Barb.  626;  but  see  contra.  People  v.  Board- 
man,  4  Keyes,  59;  see  People  v.  Commissioners 
of  Highways,  27  How.  Pr.  158,  and  cases  there 
commented  on;   Wait's  N.  Y.   Code,  §  1. 


§  22.  Action  defined.  An  action  is  an  ordinary  proceeding  in  a  court  of 
justice  by  which  one  party  prosecutes  another  for  the  enforcement  or  pro- 
tection of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  punishment 
of  a  public  offense. 

Legislation  §  22.       Enacted  March  11,  18  73. 

Distinction  between  terms.  An  action, 
as  distinguished  from  the  suit  in  which  it 
is  enforced,  is  simply  the  right  or  power 
to  enforce  an  "obligation,"  or  "what  is 
owed  to  the  plaintiff";  the  "action"  springs 
from  the  "obligation"  whicli  it  seeks  to 
enforce,  and  the  "cause  of  action"  is  sim- 
ply the  "obligation,"  regardless  of  whether 
the  action  is  ex  contractu  or  ex  delicto,  or 
for  compensation,  or  for  damages,  or  for 
restitution,  or  in  rem  or  in  personam ;  the 
"cause  of  action"  is  to  be  distinguished 
from  the  "remedy,"  which  is  simply  the 
means  by  which  the  "obligation,"  or  the 
corresponding  action,  is  effectuated,  and  is 
also  to  be  distinguished  from  the  "relief" 
sought.  Frost  v.  Witter,  132  Cal.  421;  84 
Am.  St.  Rep.  53;  64  Pac.  705. 

Special  proceedings.  According  to  the 
course  of  the  common  law,  probate  mat- 
ters belonged  to  ecclesiastical  jurisdiction; 
thus,  a  proceeding  in  probate  is  not  an 
action  at  law,  as  defined  by  this  section 
(Estate  of  Moore,  72  Cal.  335;  13  Pac.  880; 
McLeran  v.  Benton,  73  Cal.  329 ;  2  Am.  St. 
Eep.  814;  14  Pac.  879);  nor  are  proceed- 
ings in  insolvency  (In  re  Dennery,  89  Cal. 
101;  26  Pac.  639);  nor  proceedings  in  emi- 
nent domain.  John  Heinlen  Co.  v.  Supe- 
rior Court,  17  Cal.  App.  660;  121  Pae.  293. 


CODE  COMMISSIONERS'  NOTE.  An  action 
is  a  lawful  dpni.Tiid  of  a  man's  riL'ht — Co.  l.itt., 
p.  285a,  §492;  Comyn's  Digest,  "Action";  Bank 
of  Commerce  v.  Rutland   etc.  R.   R.   Co.,    10   How. 


Pr.  9;  see  Mayhew  v.  Robinson,  10  How.  Pr. 
164.  Any  judicial  proceeding  which,  if  con- 
ducted to  a  termination,  will  result  in  a  judg- 
ment, is  an  action.  People  v.  County  Judge  of 
Rensselaer,  13  How.  Pr.  400;  see  remarks  of 
Justice  Potter,  in  People  v.  Colborne,  20  Hov.'. 
Pr.  380.  Not  every  judicial  decision  which  ter- 
minates in  a  judgment  constitutes  an  action.  Coe 
V.  Coe,  37  Barb.  233;  14  Abb.  Pr.  88;  see  2 
Wait's  Law  and  Practice,   p.  40. 

What  are  actions.  Under  a  similar  provision 
in  the  New  York  code,  it  was  held  that  a  pro- 
ceeding supplementary  to  execution  was  not  a 
special  proceeding  under  the  code,  but  a  pro- 
ceeding in  the  action.  Dresser  v.  Van  Pelt,  15 
How.  Pr.  19;  Seeley  v.  Black,  35  How.  Pr.  369; 
Lawrence  v.  Farmer's  L.  &  T.  Co.,  6  Duer,  689; 
Bank  of  Genesee  v.  Spencer,  15  How.  Pr.  412. 
An  order  or  decree  having  been  made  in  an 
action,  if  a  party  to  the  action  institutes  pro- 
ceedings to  enforce  it,  it  is  a  proceeding  in  the 
action,  and  not  a  special  proceeding.  Pitt  v. 
Davison,  37  N.  Y.  235;  34  How.  Pr.  374;  3  Abb. 
Pr.  (N.  S.)  405.  Held  otherwise,  however,  if 
proceeding  be  for  punishment,  as  for  contempt,  of 
party  disobeying  order.  See  Holstein  v.  Rice.  24 
How.  Pr.  135;  15  Abb.  Pr.  307;  Forbes  v.  Wil- 
Inrd,  54  Barb.  520.  Proceedings  for  partition  of 
lands  by  summons  and  complaint  are  actions. 
Mvers  v.  Rasback,  2  Code  R.,  p.  13;  4  How.  Pr. 
83;  Backus  v.  Stihvell,  1  Code  R.,  p.  70;  3  How. 
Pr.  318;  contra,  see  Traver  v.  Traver,  3  How.  Pr. 
351;  affirmed  3  How.  Pr.  368:  1  Code  R.,  p.  112; 
explained  in  Row  v.  Row,  4  How.  Pr.  133.  The 
following  have  been  held  actions:  A  proceeding 
to  enforce  mechanic's  lien.  People  v.  County 
Judge  of  Rensselaer,  13  How.  Pr.  398.  To  com- 
pel a  determination  of  claims  relating  to  real  prop- 
erty. Mann  v.  Provost,  3  Abb.  Pr.  446.  To  ob- 
tain the  remedy  given  by  a  writ  of  mandate  whera 
return  is  made  and  issues  joined.  People  v. 
Lewis,  28  How.  Pr.  159;  28  How.  Pr.  470; 
People  V.  Colborne,  20  How.  Pr.  382.  A  pro- 
ceeding by  the  attorney-general  to  annul  a  patent 
granting  lands.  People  v.  Clarke,  11  Barb.  337; 
9   N.   Y.  349. 


19 


DEFINITIONS — DIVISION    OF   ACTIONS — CIVIL   ACTIONS. 


§§23-25 


What  are  not  actions.  A  submission  of  a  con- 
troversy under  §  li;i8,  pest,  of  this  code,  would 
not  be  an  action.  See  decision  on  a  similar  sec- 
tion of  New  York  code,  Lane  v.  Ilopke,  1  Duer, 
701.  Neither  would  an  application  to  vacate  a 
judpinent  rendered  upon  confession.  Belknap  v. 
Waters,  11  N.  Y.  477.  Nor  proceedings  on  the 
reference  of  claims  against  executors  or  adininis- 
trator.s.  Coe  v.  Coe,  .'!7  Barb.  232;  14  Abb.  Pr. 
8(i;  Akely  v.  Akely,  17  How.  Pr.  21.  Nor  a  pro- 
ceeding to  punish  a  party  for  contempt  in  dis- 
obeying order  in  proceedings  supplementary  to 
execution,     llolsteiu    v.    Kice,    24    How.    Pr.    i35; 


Cray  v.  Cook,  15  Abb.  Pr.  308;  Forbes  v.  Willard, 
54  Barb.  520.  Nor  an  application  for  admission 
as  attorney  and  an  order  denving  it.  Matter  of 
Cooper,  22  N.  Y.  Rl ;  Matter' of  the  Graduates, 
20  How.  Pr.  1;  11  Abb.  Pr.  301.  Nor  a  summary 
proceeding  to  remove  tenant  from  ))ossession  of 
demised  premises.  People  v.  Hamilton,  15  Abb. 
Pr.  328:  39  N.  Y.  107;  People  v.  Boardman.  4 
Keyes,  59.  Nor  an  application  for  injunction, 
which  before  answer  is  not  an  ordinary  proceeding 
in  the  action.  Becker  v.  Hager,  8  How.  Pr.  68; 
see  Wait's  N.  Y.  Code,  §  2. 


§  23.     Special  proceeding  defined.     Every  other  remedy  is  a  special  pro- 


ceeding. 

Special  proceedings  of  a  civil  n.iture.  See  post, 
Part  HI,  §§  10G3   et  seq. 

Legislation  S  23.     Enacted  March  11,  1873. 

Special  proceedings.  Any  proceeding  in 
a  court,  which,  under  the  common-law  and 
equity  practice,  was  not  either  an  action 
at  Jaw  or  a  suit  in  equity,  is  a  special  pro- 
ceeding, under  this  section.  In  re  Central 
Irrigation  District,  117  Cal.  3S2 ;  49  Pac. 
354;  Yuba  County  v.  North  America  etc. 
Mining  Co.,  12  Cal.  App.  223;  107  Pac.  139. 
Thus,  a  contest  to  revoke  the  probate  of  a 
will  is  a  special  proceeding  (Estate  of 
Joseph.  118  Cal.  660;  50  Pac.  76S);  and  so 
is  a  proceeding  to  determine  heirship,  un- 
der §  1664,  post  (Smith  V.  Westerfield,  88 
Cal.  374;  26  Pac.  206;  Estate  of  Burton, 
93  Cal.  459;  29  Pac.  36;  Estate  of  Blythe, 
110  Cal.  226;  42  Pac.  641;  Estate  of  Sutro, 
143  Cal.  487;  77  Pac.  402),  and  an  insol- 
vency proceeding  (In  re  Dennery,  89  Cal. 
101;  26  Pac.  639);  and  also  an  action  to 
determine,  upon  reference  by  the  surveyor- 
general,  the  right  to  purchase  school-lands 
from  the  state  (Eisdon  v.  Prewett,  8  Cal. 
App.  435;  97  Pac.  73),  and  an  application 
for  a  writ  of  mandate  (Jones  v.  Board  of 
Police  Commissioners,  141  Cal.  96;  74  Pac. 
696)  ;  but  the  entry  of  judgment  on  an  ap- 
peal bond,  against  the  sureties  thereon,  is 
not  a  special  proceeding.  Hawley  v.  Gray 
Brothers  etc.  Co.,  127  Cal.  560;  60  Pac. 
437.  In  a  special  proceeding  the  court  is 
limited  by  the  terms  and  conditions  of  the 
statute  under  which  such  proceedings   are 


authorized.  Smith  v.  Westerfield,  88  Cal. 
374;   26   Pac.  206. 

CODE    COMMISSIONERS'  NOTE.      "What   is   a 

special  pi-ocec'diiig  /  I'unishraent  of  contempts. 
See  Holstein  v.  Kice,  24  How.  Pr.  135;  15  Abb. 
I'r.  307  ;  Forbes  v.  Willard,  54  Barb.  520;  37  How. 
Pr.  193.  Mandamus  a  special  proceeding.  See 
I'eople  V.  Schoonmaker,  19  Barb.  658;  but  see 
People  V.  Lewis,  28  How.  Pr.  159:  Ct.  of 
App.,  S.  C,  28  How  Pr.  470.  Proceedings  sup- 
plementary to  execution  have  been  held  not  to 
V)e  special  proceedings.  Dresser  v.  Van  Pelt,  'i 
Duer,  688;  15  How.  Pr.  19.  In  the  Matter  of 
Dodd,  27  N.  Y.  629,  it  was  held  that  "to  be  a 
special  proceeding  in  the  sense  of  the  New  Y'ork 
code,  there  must  be  a  litigation  in  a  court  of  .ius- 
tice"  ;  but  a  difTerent  opinion  is  entertained  in 
People  V.  Commissioners  of  Highways,  27  How.  Pr. 
158;  People  v.  Boardman,  4  Keyes,  59.  Part  III 
of  this  code  treats  of  all  such  special  proceedings 
as  writs  of  mandate  and  prohibition.  5  §  106  i- 
1110.       Contesting  elections.      §§1111-1127. 

Summary  proceedings.  §§1132—1178.  Enforce- 
ment of  liens.  §§  1180-1206.  Contempts. 
§§  1209—1222.  Voluntary  dissolution  of  corpora- 
tions. §§  1227-1233.  Eminent  domain  (con- 
demnation of  private  property).  §§1237—1263. 
Escheated  estates.  §§  1269-1272.  Change  of 
names.  §§  1275-1278.  Arbitrations.  §§  1281- 
1290.  Proceedings  in  probate  courts.  §§  1298— 
1346.  Of  sole  traders.  §§  1811-1821.  Proceed- 
ings in  insolvency.  §  1822.  "Special  cases" 
have  been  defined  to  be  "special  proceedings." 
characteristically  differing  from  ordinary  suits 
at  common  law,  but  embracing  such  matters  as 
writs  of  quo  warranto,  mandamus,  inquisitions 
of  lunacy,  and  the  like.  People  v.  Day,  15  Cal. 
91;  Saunders  v.  Ifaynes,  13  Cal.  145;  People  v. 
Schoonmaker,  19  Barb.  657;  Kundolf  v.  Thal- 
heimer,  12  N.  Y.  593 ;  see,  however.  Parsons  v. 
Tuolumne  Water  Co.,  5  Cal.  43;  63  Am.  Dec.  76; 
and  Brock  v.  Bruce,  5  C?il.  279.  Proceedings 
for  partition  are  special  proceedings.  Waterman 
V.  Lawrence,   19   Cal.  218,  79  Am.  Dec.  212. 


§  24.     Division  of  actions. 

1.  Civil;  and, 

2.  Criminal. 

Civil  action,  form  of.      See  post,  §  307. 
Criminal  action.    See  post.  §  31. 

Legislation  §  24.       Enacted  March  11,  1872. 

Civil  actions.  A  civil  action  is  one  aris- 
ing out  of  an  obligation  or  an  injury, 
whether    it    be    at    law    or   in    equity.     Ex 


Actions  are  of  two  kinds: 


parte  Harker,  49  Cal.  465.  Thus,  a  pro- 
ceeding for  the  arrest  of  a  defendant  in 
a  civil  action  is  civil,  and  not  criminal. 
Ex  parte   Harker,   49  Cal.  465. 

Criminal  actions.     A  criminal  action   is 
defined  by  §  6S3  of  the  Penal  Code. 


§  25.     Civil  actions  arise  out  of  obligations  or  injuries. 

arises  out  of — 

1.  An  obligation; 

2.  An  injury. 

Legislation  §  25.       Enacted  March  11,  1872, 


A  civil  action 


§§  26-32  PRELIMINARY   PROVISIONS.  20 

§  26.  Obligation  defined.  An  obligation  is  a  legal  duty,  by  which  one 
person  is  bound  to  do  or  not  to  do  a  certain  thing,  and  arises  from: 

1.  Contract;  or, 

2.  Operation  of  law. 

Obligation,  what  is.  See  Civ.  Code,  §§  142  7,  The  contract  of  the  parties;  or,  2.  The  operation 
1428.  of  law." 

Legislation!  26  1.  Enacted  March  11.  1872,  to  ^xWd"a\"'at  p'fes^e"„t  ^"''"  *«^^-^*' P"  2^^- 
and   then   read:      An    obligation    is    a    legal    duty,  3,   r^        j     ^^^     g^^j        ^q^^  ^^g 

by  which  one  person  is  bound  to  the  performance  stitutional.     See  note  ante,  §  5.  ^  ' 

of  an   act   towards  another,   and   arises   from:    1.  =.  3     • 

§27.     Division  of  injuries.     An  injury  is  of  two  kinds: 

1.  To  the  person ;  and, 

2.  To  property. 

Legislation  g  27.      1,   Enacted  March  11,  1873.        stitutional.     See  note    ante,  §  5. 
2.  Repeal    by    Stats.     1901,    p.  118;     uncon- 

§  28.     Injuries  to  property.     An  injury  to  property  consists  in  depriving 

its  owner  of  the  benefit  of  it,  which  is  done  by  taking,  withholding,  de- 
teriorating, or  destroying  it. 

Legislation  §  28.      1.  Enacted  March  11,  1872.        stitutional.     See  note  ante,  §  5. 
2.  Repeal    by    Stats.     1901,    p.  118;     uncon- 

§  29.  Injuries  to  the  person.  Every  other  injury  is  an  injury  to  the  per- 
son. 

Legislation  §  29.      1.   Enacted  March  11,  1872.        stitutional.     See  note  ante,  §  5. 
2.  Repeal    by    Stats.     1901,    p.  118;     uncon- 

§  30.  Civil  action,  by  whom  prosecuted.  A  civil  action  is  prosecuted  by 
one  party  against  another  for  the  enforcement  or  protection  of  a  right,  or 
the  redress  or  prevention  of  a  wrong. 

Forms  of  action.    See  post,  §  307.  of  a  lien  does  not  depend  upon  possession, 

Legislation  §  30.     1.  Enacted  March  11,  1872.  it  may  be  assicrned,  and  the  assignment  of 

2.  Repeal    by    Stats.    1901,    p.  118;    uncon-  the  claim  carries  with  it  the  right  to  the 

stitutional.    See  note  ante,  §  5.  j-^^  ^g  ^^  incident.      Duncan  V.  Hawn,  104 

Assignment  of  lien.     Where  the  existence  Cal.  14;  37  Pac.  626. 

§  31.  Criminal  actions.  The  Penal  Code  defines  and  provides  for  the 
prosecution  of  a  criminal  action. 

Criminal  action,  defined.    See  Pen.  Code,  §683.  2.  Repeal    by    Stats.     1901,    p.  118;     uncon- 

T      ■  1  I.-       oof        <-o        ij-»T       vii<  orvr.  stitutional.     See  note  ante,  §  5.. 

Legislation  §  31.      1.  Enacted  March  11,  1872.  ^ 

§32.  Civil  and  criminal  remedies  not  merged.  "When  the  violation  of  a 
right  admits  of  both  a  civil  and  criminal  remedy,  the  right  to  prosecute  the 
one  is  not  merged  in  the  other. 

Legislation  §  32.       Enacted  March  11,  1872.  pended     until     the     conviction     of     the     offender. 

^^T.^  /^/^T.»i.«-rc.c.T/%-vrrn-r.c..  xTr.m-r.       /r    •,  Gordon    V.   Hostetter,    37    N.    Y.    99;    4    Abb.    Pr. 

CODE  COMMISSIONERS'  NOTE.      Civil  reme-  rx.    S)    2  6:^:    4    Trans.   App.    375;    Wait's  Ann. 

dies  are  not  merged  in  felonies,  nor  are  they  sus-  jj_  y_  Code   §  7. 


PART  I. 

COURTS  OF  JUSTICE. 

Title  I.     Organization  and  Jurisdiction.     §§  33-153. 
II.     Judicial  Officers.     §§  156-188. 

III.  Persons  Specially  Invested  with  Powers  of  a  Judicial  Nature. 

§§  190-259. 

IV.  Ministerial  Officers  of  Courts  of  Justice.     §§  262-274. 

V.     Persons  Specially  Invested  with  ]\Iinisterial  Powers  Relating 
to  Courts  op  Justice.     §§  275-304. 

Legislation    Part    I.       (Titles   I-V,  §§  33-304.)  substituting   a   new   Part    One   to    take   the   place 

1.   Enacted  March  11,    1S72.  thereof   in   said   Code,    relating   to   Courts   of   Jus- 

2.   Amended     by     Code    Amdts.     1880,     p.  21,  tice,    and    various    officers    connected    therewith." 

by   "An   Act    to    amend   Part   One   of   the    Code   of  This  act  was  declared  unconstitutioual,  iu  People 

Civil   Procedure,    and   each   and   every   title,    chap-  v.  Ransom,  58  Cal.  558. 
ter,    article,    and   section   of   said   Part   One,    and 

(21) 


23 


COURTS   OF    JUSTICE    IN    GENERAL. 


§33 


TITLE  I. 
ORGANIZATION  AND  JURISDICTION. 

Chapter  I.  Courts  of  Justice  in  General.     §§33.34. 

II.  Court  of  Impeachment.     §§  35-39. 

III.  Supreme  Court.     §§  40-G4. 

IV.  Superior  Courts.     §§  65-79. 
V.  Justices'  Courts.     §§  82-119. 

Article  I.     Justices'  Courts  in  Cities  and  Counties.     §§  85-100. 
II.     Justices'  Courts  in  Townships.     §§  103-109. 
III.     Justices  of  the  Peace  and  Justices'  Courts  in  Genoral.     §§  110-119. 
VI.     Police  Courts.     §  121. 
VII.     General  Provisions  respecting   Courts   of   Justice.     §§  124-153, 
Article  I.     Publicity  of  Proceedings.     §§  124,  125. 

II.     Incidental  Powers  and  Duties  of  Courts.     §§  128-131. 
III.     Judicial  Days.     §§  133-135. 

IV.     Proceedings  in  Case  of  Absence  of  .Tudge.     §§  139,   140. 
V.     Provisions  respecting  Places  of  Holding  Courts.     §§  142-144. 
VI.     Seals  of  Courts.     §§147-153. 


CHAPTER  I. 

COURTS  OF  JUSTICE  IN  GENERAL, 

§  .3.^.     Courts  of  justice  in  general. 
§  34.     Courts  of  record. 

§  33.     Courts  of  justice  in  general.    The  following  are  the  courts  of  jus- 
tice of  this  state : 

1.  The  court  of  impeachments; 

2.  The  supreme  court ; 

3.  The  superior  courts; 

4.  The  justices'  courts; 

5.  The  police  courts,  and  such    other  inferior   courts   as  the   legislature 
may  establish  in  any  incorporated  city  or  town,  or  city  and  county. 

sixth   subdivision   of  that   act,   which   reads   "Re- 
corders'   and  other  inforioi-   municipal   courts." 

1.  Jurisdiction  of  courts  in  general.  The  first 
point  decided  by  any  court,  although  it  may  not 
he  in  terms,  is  that  the  court  has  jurisdiction. 
Clary  v.  Hoagland,   6  Cal.   688. 

2.  Void  judgment  if  jurisdiction  be  wanting. 
The  judgment  of  any  court  is  void  where  there 
is  a  want  of  jurisdiction.  Hahn  v.  Kelly,  34  Cal. 
402;    94   Am.  Dec.   742. 

3.  Jurisdiction  of  courts  before  adoption  of 
constitutional  amendments.  Efiect  of  amend- 
ments to  constitution  on  jurisdiction  of  the  courts 
existing  prior  to  their  adoption.  See  Gillis  v. 
Barnelt,  38  Cal.  393.  And  as  to  jurisdiction  of 
courts  existing  prior  to  adoption  of  constitution, 
in  1849.  and  intendments  in  favor  of  their  judg- 
ments,   see  Ryder  v.   Cohn,    37   Cal.   69. 

4.  "Amount  in  controversy."  The  "amount  in 
controversy"  means  the  sum  claimed  in  the  com- 
plaint or  declaration,  so  far  as  relates  to  the 
jurisdiction  of  the  court.  Costs  of  suit,  etc.,  are 
mere  incidents,  not  controlling  the  jurisdiction; 
so  a  judgment  may  be  for  more  than  the  "amount 
in  controversy"  and  not  affect  the  matter  of 
jurisdiction.    Bradley  v.  Kent,  22  Cal.  169. 

5.  Jurisdiction  by  certiorari.  The  jurisdiction 
of  a  court  by  certiorari  (writ  of  review)  does  not 
depend  upon  the  amount  in  controversy  (over- 
ruling People  V.  Carman.  18  Cal.  693).  Winter 
V.   Fitzpatriok.    3.5    Cal.    273. 

6.  Common-law  jurisdiction.  The  phrase, 
"courts  having  common-law  jurisdiction."  dis- 
cussed and  defined  in  Matter  of  Conner,  39  Cal. 
98:   2  Am.   Rep.  427. 

7.  Inquiry  by  one  court  Into  Jurisdiction  of 
another.  The  power  of  a  court  of  law  to  inquire 
into  the  jurisdiction  of  a  court  of  original  juris- 


Judicial  department.    See  Const.,  arts.  Ill,  VI. 

Subd.  5.    See  Const.,  art.  VI,  §  13. 

Jurisdiction  of  above  courts  considered,  post, 
in  the  various  chapters  treating  thereof. 

Court  of  impeachment.      See  post,  §§36  et  seq. 

Supreme  court.     See   post,  §S4U   et    sf 

District  courts  of  appeal.  See  Stats.  1903,  p. 
737. 

Superior  courts.     See  post,  §§  6.5  et  seq. 

Justices'  courts.     See  post,  §§  85  et  seq. 

Police  courts.    See  post,  §  121. 

Legislation  §  33.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  333),  and  then  read: 
"The  following  are  the  courts  of  justice  of  this 
state:  1.  The  court  for  the  trial  of  impeach- 
ments; 2.  The  supreme  court;  3.  The  district 
courts;  4.  The  county  courts;  5.  The  probate 
courts;  6.  The  municipal  criminal  court  of  San 
Francisco;  7.  The  justices'  courts;  8.  The  police 
courts." 

2.  Amended  by  Code  Amdts.  1880,  p.  21. 

3,  Repeal  by  Stats.  1901,  p.  118;  unconstitu- 
tional.     See   note   ante,  §  5. 

Juvenile  court.  The  Juvenile  Court  Law 
of  1911  is  constitutional.  Moore  v.  Wil- 
liams.  19   Cal.  App.  600;    127  Pac.   509. 

Police  court.  A  police  judge,  though  a 
judicial  othcer,  is  also  a  municipal  otiicer. 
People  V.  Henry,  62  Cal.  557. 

CODE  COMMISSIONERS'  NOTE.  Based  upon 
act  of  1863  (Stats.  1863,  p.  333),  with  the  court 
for  the  trial  of  impeachments  and  the  municipal 
criminal  court  of  San  Francisco  added,  and 
"police    courts"    substituted   in   the   place   of   the 


33 


COURTS   OF   JUSTICE    IN   GENERAL. 


24 


diction  by  which  the  judgment  was  rendered  is 
fully  recognized,  but  the  inquiry  is  limited  to  an 
inspection  of  the  record,  and  if  it  does  not  appear 
affirmatively  upon  the  face  of  the  record  that  the 
court  had  no  jurisdiction,  the  impeachment,  for 
all  purposes  of  a  defense  to  the  action  at  law,  has 
failed.  The  jurisdiction  in  courts  of  original  ju- 
risdiction need  not  appear  affirmatively  upon  the 
face  of  the  record,  the  presumption  thereof  com- 
ing to  the  aid  of  the  record.  Carpentier  v.  City 
of  Oakland,   30   Cal.   439. 

8.  Presumption  in  favor  of  jurisdiction.  It  is 
presumed  (where  judgment  is  rendered  by  a  court 
of  original  jurisdiction)  that  the  court  had  juris- 
diction over  the  person  of  the  defendant,  unless 
the  contrary  affirmatively  appears  in  the  record. 
Sharp  v.  Daugney,  33  Cal.  507. 

9.  When  jurisdiction  presumed  in  courts  of 
record.  As  to  courts  of  record,  all  intendments 
are  in  favor  of  the  regularity  of  their  proceed- 
ings. People  V.  Blackwell,  27  Cal.  65;  Hahn  v. 
Kelly,  3-4  Cal.  391;  94  Am.  Dec.  742;  Barrett 
V.  Carney,  33  Cal.  530;  Quivev  v.  Porter,  37 
Cal.  458;  People  v.  Connor,  17  Cal.  361;  People 
V.  Hobson,  17  Cal.  424;  People  v.  Robinson,  17 
Cal.  368;  People  r.  Lawrence,  21  Cal.  372.  See 
generally  Ryder  v.  Cohn.  37  Cal.  69. 

10.  Want  of  jurisdiction,  how  taken  advantage 
of.  In  courts  of  general  jurisdiction,  the  cause 
of  action  need  only  to  be  stated,  and  the  want  of 
jurisdiction  arising  from  the  insufficient  value 
of  the  subject-matter  in  dispute  must  be  taken 
advantage  of  in  some  other  way.  Doll  v.  Feller, 
16  Cal.  432.  In  a  court  of  limited  and  special 
jurisdiction,  every  fact  essential  to  confer  juris- 
diction must  be  alleged.  But  the  rule  is  other- 
wise in  courts  of  general  jurisdiction.  A  de- 
murrer to  their  jurisdiction  only  lies  where  the 
want  of  such  jurisdiction  appears  affirmatively 
upon  the  face   of  the   complaint. 

11.  Jurisdiction  not  presumed  in  courts  not  of 
record.  The  jurisdiction  of  courts  not  of  record 
being  special  and  limited,  the  law  presumes  noth- 
ing in  favor  of  their  jurisdiction,  and  a  party 
who  asserts  a  right  under  a  judgment  rendered 
in  such  a  court  must  show  affirmatively  every 
fact  necessary  to  confer  such  jurisdiction.  Row- 
ley V.  Howard,  23  Cal.  401;  Swain  v.  Chase,  12 
Cal.  283:  Whitwell  v.  Barbier,  7  Cal.  54;  Lowe 
v.  Alexander,  15  Cal.  296;  King  v.  Randlet,  33 
Cal.    318;    Jolley    v.    Foltz,    34    Cal.    321. 

12.  Meaning  of  "within  the  jurisdiction  of  the 
court."  By  the  phrase  "within  the  jurisdiction 
of  the  court"  is  meant  "within  the  state,"  so 
far  as  to  the  necessity  of  producing  a  subscrib- 
ing witness  or  accounting  for  an  omission  so  to 
do.      Stevens   v.   Irwin,    12    Cal.    306. 

13.  Appeals  from  state  to  Federal  courts; 
transfer  of  causes;  conflicts  of  jurisdiction;  ad- 
miralty and  maritime  cases,  etc.  As  to  appeals 
from  state  courts  to  the  supreme  court  of  the 
United  States,  when  allowed,  how  taken,  etc.,  see 
Ferris  v.  Coover,  11  Cal.  175;  Hart  v.  Burnett, 
20  Cal.  171;  Greely  v.  Townsend,  25  Cal.  610. 
It  was  held  that  no  cause  can  be  transferred 
from  a  state  court  to  any  court  of  the  United 
States.  The  Federal  and  state  courts  have  in 
some  cases  concurrent  jurisdiction,  but  the  court 
which  first  has  possession  of  the  subject  must 
decide  it.  Neither  a  writ  of  error  nor  appeal 
lies  to  take  a  case  from  a  state  court  to  the 
supreme  court  of  the  United  States.  An  appeal 
is  allowed  when  the  decision  of  the  state  court 
is  adveise  to  a  law  of  Congress,  treaty,  etc. 
Johnson  v.  Gordon,  4  Cal.  368.  See  this  case 
reviewed  in  Warner  v.  Steamship  Uncle  Sam,  9 
Cal.  697,  and  finally  overruled,  in  most  particu- 
lars, in  Greely  v.  Townsend,  25  Cal.  613;  see 
also  Martin  v.  Hunter's  Lessees,  1  Wheat.  304. 
372;  4  L.  Ed.  97,  113;  Cohen  v.  Virginia,  6 
Wheat.  264;  Waring  v.  Clark,  5  How.  461;  12 
L.  Ed.  237.  As  to  jurisdiction  and  removal  of 
cause  between  state  and  Federal  courts,  see  Cal- 
derwood  v.  Hager,  20  Cal.  167;  Hart  v.  Burnett, 
20  Cal.  169.  The  judge  of  the  United  States 
district  court  for  the  district  of  Oregon  has  not 
jurisdiction,  while  holding  the  circuit  court  of 
the  United  States  for  the  district  of  California, 
to   issue   a   citation   on   a   writ  of   error   from   the 


supreme  court  of  the  United  States  to  the  su- 
preme court  of  this  state.  He  has  not  juris- 
diction either  to  take  or  approve  security  re- 
quired in  order  to  make  the  writ  of  error  a 
supersedeas,  etc.  The  citation  and  security 
taken  would  not  operate  as  a  supersedeas  in  such 
a  case.  Tompkins  v.  Mahoney,  32  Cal.  240. 
The  .jurisdiction  of  the  courts  of  the  United 
States  in  admiralty  and  maritime  causes  is  not 
exclusive;  the  states  have  power  to  confer  upon 
their  courts  all  admiralty  and  maritime  jurisdic- 
tion. Congress  has  not  power  to  make  this  juris- 
diction exclusive  in  the  Federal  courts.  State 
and  Federal  courts  have  in  these  cases  concurrent 
original  jurisdiction.  Johnson  v.  Gordon,  4  Cal. 
368;  see,  however,  Greely  v.  Townsend,  25  Cal. 
613,  overruling  this  case;  Taylor  v.  Steamer 
Columbia,  5  Cal.  268;  Warner  v.  Steamship  Uncle 
Sam,  9  Cal.  697;  Ord  v.  Steamer  Uncle  Sam,  13 
Cal.  369;  and  see  The  Moses  Taylor,  4  Wall. 
(U.  S.)  411;  18  L.  Ed.  397;  The  Hine  v.  Trevor, 
4  AVall.  (U.  S.)  556;  18  L.  Ed.  451.  See  par- 
ticularly Appendix  Pol.  Code,  vol.  2,  p.  344,  note 
to  art.   Ill,  §  2,   Federal  Constitution. 

14.  Actions  against  steamers  and  vessels.  The 
provisions  of  the  code,  §§  813—827,  post,  pro- 
viding for  actions  against  steamers,  vessels,  and 
boats,  confers  upon  the  district  court  admiralty 
jurisdiction  pro  tanto.  The  rule  in  regard  to 
action  in  rem,  in  both  admiralty  and  common-law 
courts,  gives  exclusive  jurisdiction  in  a  given 
case  to  that  tribunal  which  has  acquired  it  by 
a  judicial  seizure  of  the  thing,  and  such  seizure 
has  always  been  essential  to  a  proceeding  in  rem. 
But  our  statute  alters  the  rule.  It  makes  the 
service  of  the  process  upon  a  person  standing  in 
a  particular  relation  to  the  thing  equivalent  to 
its  seizure  for  the  purpose  of  conferring  juris- 
diction ;  and  it  necessarily  follows  that  jurisdic- 
tion in  rem  may  exist  in  several  courts  at  the 
same  time.  The  court,  however,  whose  mesne  or 
final  process  has  first  made  actual  seizure  must 
have  exclusive  power  over  its  disposal  and  the 
distribution  of  the  funds  arising  therefrom.  The 
judgments  of  other  courts,  if  filed  in  the  court 
having  custody  of  the  fund,  are  complete  adjudi- 
cations of  the  subject-matter  of  litigation  which 
they  disclose,  and  entitled  to  distribution  accord- 
ing to  their  respective  merits.  Averill  v.  The 
Hartford,  2  Cal.  308;  but  see  The  Moses  Tavlor. 
4  Wall.  (U.  S.)  411;  18  L.  Ed.  397;  TTie  Hine 
V.  Trevor,  4  Wall.  556;  18  L.  Ed.  451;  see  Ap- 
pendix Pol.  Code,  vol.  2,  p.  344,  note  to  art.  Ill, 
§  2.    Federal   Constitution. 

15.  Admiralty  cases.  A  cause  of  action,  to  be 
cognizable  in  admiralty,  whether  arising  out  of 
a  contract,  claim,  service,  or  obligation  or  lia- 
bility of  any  kind,  must  relate  to  the  business 
of  co.-nmerce  and  navigation.  People  v.  Steamer 
America,  34  Cal.  679;  see  also  this  case  for  the 
manner  of  raising  in  the  state  courts  the  issue 
of  jurisdiction  as  to  whether  the  action  is  within 
maritime   jurisdiction. 

16.  Maritime  causes.  In  a  case  clearly  arising 
on  questions  belonging  to  admiralty  and  mari- 
time transactions,  it  has  been  intimated  that  a 
sttte  court  might  hold  its  jurisdiction  where  the 
people  of  the  state  were  plaintiffs,  and  the  action 
was  for  the  collection  of  state  revenues.  See 
People   v.   Steamer  America,    34   Cal.   681. 

17.  Suits  between  citizens  and  foreigners. 
United  States  courts  have  no  jurisdiction  over 
suits  between  alien  and  alien,  but  are  confined 
to  actions  between  citizens  and  foreigners  (Moss- 
man  V.  Higginson,  4  Dall.  12;  1  L.  Ed.  720; 
Montalet  v.  Murray,  4  Cranch,  46  ;  2  L.  Ed.  545; 
Hodgson  V.  Bowerbank.  5  Cranch,  303;  3  L.  Ed. 
108;  Jackson  v.  Twontyman,  2  Pet.  136;  7  L.  Ed. 
374)  ;  and  where  bvith  parties  to  a  suit  are  aliens, 
the  action  cannot  be  on  that  account  transferred 
from  a  state  to  a  Federal  court.  Orosco  v. 
Gagliardo,    22    Cal.    83. 

18.  When  state  courts  have  jurisdiction  over 
foreign  seamen,  etc.  When  a  foreign  master  of 
a  foreign  vessel  discharges  a  foreign  seaman  for 
no  wrongful  act.  the  seaman  may  maintain  an 
action  for  his  wages  in  a  state  court.  All  per- 
sons in  time  of  peace  (in  such  matters  as  these) 
have   the   right   to   resort    to    the   tribunals   of    the 


25 


COURTS   OF   JUSTICE    IN   GENEILVL. 


§33 


nation  where  they  may  happen  to  be,  for  the  pro- 
tection of  their  riffhts.  The  jurisdiction  of  courts 
over  them  is  cmnijlete,  except  where  it  is  ex- 
cluded by  treaty.  Pugh  v.  (iilUim,  1  t'al.  4Ho ; 
The  Jerusalem.  2  Gall.  191;  Fed.  C'as.  No.  7293; 
Moran  v.  baudin,  2  Pet.  Adni.  Decis.  415;  Fed. 
Cas.  \j.   97f>5. 

19.  State  courts  no  jurisdiction  over  crimes 
against  United  States.  The  state  tribunals  have 
no  jurisdiction  to  punish  crimes  against  the  laws 
of  the  United  States,  as  such.  But  the  same 
act  may  be  an  oll'ense  tigaiiisl  both  the  laws  of 
the  United  States  and  of  this  state.  People  v. 
Kelly,  38  Cal.  145;  99  Am.  Dec.  3U0.  State 
tribunals  have  no  jurisdiction  to  punish  perjury 
against  the  United  States.  State  v.  Adams,  4 
Blackf.  14(j;  State  v.  Pike,  15  N.  H.  83;  People 
V.   Kelly,   38   Cal.   145;   99   Am.   Dec.   300. 

20.  Jurisdiction  of  state  courts  over  action  of 
United  States  land  department.  It  has  been 
questioned  whether  the  cuurts  of  California  have 
jurisdiction  to  review  the  action  of  the  United 
States  land  department  upon  contests  of  rights 
of  preemption  wlien  the  subject-matter  of  the 
investigation,  and  upon  which  the  preference  de- 
pended, were  not  transactions  which  occurred  in 
the  contest,  but  before  it.  Quinn  v.  Kenyon,  38 
Cal.   499. 

21.  Trespass  committed  by  United  States  offi- 
cer. The  fact  that  a  trespass  was  committed  by 
a  marshal  of  the  United  States,  or  by  a  deputy, 
under  cover  of  his  office,  does  not  deprive  the 
district  court  of  jurisdiction  over  the  same. 
Hirsch   v.   Hand,    39   Cal.    315. 

22.  Jurisdiction  of  one  court  cannot  encroach 
upon  that  of  another.  Each  branch  of  the  judi- 
cial department  has  its  functions  assigned  by  the 
constitution.  The  sixth  article  of  the  constitu- 
tion seems  to  have  been  drawn  with  great  skill 
and  care,  and  endeavors  to  establish  a  complete 
judicial  system.  It  not  only  provides  for  the 
establishment  of  the  several  judicial  tribunals, 
but  also  distributes  among  these  tribunals  their 
several  powers.  It  would  derange  our  judicial 
system  if  the  legislature  could  confer  on  one 
court  the  functions  and  powers  which  the  con- 
stitution has  conferred  on  another.  Zander  v. 
Coe,    5    Cal.    230. 

23.  Courts  of  concurrent  jurisdiction  cannot 
interfere  with,  each  other's  actions.  One  court 
has  no  power  to  interfere  with  the  judgments 
and  decrees  of  another  court  of  concurrent  juris- 
diction. The  only  case  in  which  it  will  be 
allowed  is  where  the  court  in  which  the  action 
or  proceeding  is  pending  is  unable,  by  reason 
of  its  jurisdiction,  to  afford  the  relief  sought. 
Anthony  v.  Dunlap,  8  Cal.  26;  Rickett  v.  John- 
son, 8  Cal.  34:  Chipman  v.  Hibbard,  8  Cal.  263; 
Phelan  v.  Smith,  8  Cal.  520;  Uhlfelder  v.  Levy, 
9  Cal.  607;  see  also  Gorham  v.  Toomey,  9  Cal. 
77.  Nor  does  it  make  any  difference  if,  in  a 
suit  in  equity,  new  parties  are  brought  in 
strangers  to  the  action  at  law  sought  to  be 
enjoined.  Uhlfelder  v.  Levy,  9  Cal.  607.  There 
are  exceptions  to  the  general  rule,  however,  as, 
for  instance,  the  same  fraudulent  debtor  might 
confess  different  fraudulent  judgments  in  dif- 
ferent judicial  districts.  It  would  not  then  be 
necessary  for  creditors  to  bring  a  different  suit 
in  each  different  court.  So,  also,  where  the  code 
requires  the  action  to  be  tried  in  a  particular 
county,  it  must  be  brought  there.  Uhlfelder  v. 
Levy,  9  Cal.  607.  Compare  this  case  with  Hey- 
neman  v.  Dannenberg.  6  Cal.  376;  65  Am.  Dec. 
519.  Nor  can  a  statf  court  enjoin  the  proceed- 
ings of  a  Federal  court.  Phelan  v.  Smith,  8  Cal. 
520. 

24.  When  court  has  jurisdiction  by  mandamus. 
If  a  court  entertained  jurisdictinn  of  the  acticin, 
its  proceedings,  however  erroneous  they  may 
have  been,  could  not  have  been  reviewed  in  pro- 
ceedings for  a  mandamus.  People  v.  Pratt,  28 
Cal.  166;  87  Am.  Dec.  110;  Cariaga  v.  Dryden, 
29  Cal.  307.  But  if  the  court  refused  to  act  in 
the  case,  the  question  whether  it  rightfully  so 
refused  mav  be  entertained  in  this  proceeding. 
Beguhl  v.  Swan,  39  Cal.  411.  Where  the  dis- 
tiict  court  has  ordered  a  cause  commenced 
therein  to  be  transferred  to  the  United  States 
circuit  court,  the  supreme  court  has  no  jurisdic- 
tion  to   issue   a   writ   of   mandate   to    comnel    the 


district   judge    to   proceed    with   the    trial    of    the 
cause.      Francisco  v.  Manhuttaa  Ins.  Co.,   36  Cal. 

283. 

25.  When  by  certiorari.  A  writ  of  certiorari 
will  not  lie  to  an  inferior  court  to  annul  an  order 
which  is  merely  erroneous,  but  not  void  in  a 
matter  of  which  such  court  has  acquired  juris- 
diction.     Peojile    V.    KIkins,    4u    Cal.    647. 

26.  Jurisdiction  in  injunction  proceedings.  It 
is  well  settled  that  under  our  judicial  system 
one  court  has  no  jurisdiction  to  enjoin  the  exe- 
cution of  a  decree  of  another  court  of  co-ordinate 
jurisdiction,  unless  it  plainly  appear  that  the 
court  rendering  the  judgment  or  decree  under 
which  proceedings  are  sought  to  be  stayed  "is 
unable  by  reason  of  its  jurisdiction  to  afford 
the  reliei  sought."  Anthony  v.  Dunlap,  8  Cal. 
27;  Rickett  v.  Johnson,  8  Cal.  35;  Chijiman  v. 
Hibbard,  8  Cal.  270;  Gorham  v.  Toomey,  9  Cal. 
77;  Uhlfelder  v.  Levy,  9  Cal.  614;  Hockstacker 
V.  Levy,  11  Cal.  76;  Grant  v.  Quick,  5  Sandf. 
612.  The  fact  that  parties  to  an  injunction  pro- 
ceeding are  not  the  same  as  the  parties  to  the 
judgment  or  decree  sought  to  be  enjoined  does 
not  relieve  tlie  case  from  the  operation  of  this 
rule,  nor  can  the  consent  of  the  parties  change 
the  rule.  It  is  established  and  enforced  not  so 
much  to  protect  the  rights  of  the  parties  as  to 
protect  the  rights  of  the  courts  of  co-ordinate 
jurisdiction,  to  avoid  conflict  of  jurisdiction,  con- 
fusion, and  delay  in  the  administration  of  jus- 
tice. Revalk  v.  Kraemer,  8  Cal.  71;  68  Am.  Dec. 
304.  Proceedings  for  such  purpose  should 
ahvays  be  commenced  in  the  court  rendering  the 
judgment  or  decree  and  having  control  of  its 
execution.      Crowley  v.   Davis,   37   Cal.   268. 

27.  Jurisdiction  in  injunction  proceedings.  A 
court  has  jurisdiction  to  issue  a  restraining  order 
when  at  the  time  of  issuance  there  was  a  suit 
pending  between  the  parties.  Prader  v.  Purkett, 
13    Cal.    588. 

28.  Explanation  of  exclusive  and  concurrent 
jurisdiction.  Their  effect.  There  is  nothing  in 
the  nature  of  jurisdiction  as  applied  to  courts 
which  renders  it  exclusive.  It  is  not  like  a  grant 
of  property  which  cannot  have  several  owners  at 
the  same  time.  It  is  a  matter  of  common  ex- 
perience that  two  or  more  courts  may  have  con- 
current powers  over  the  same  parties  and  the 
same  subject-matter.  Jurisdiction  is  not  a  right 
or  privilege  belonging  to  the  judge,  but  an  au- 
thority or  power  to  do  justice  in  a  given  case, 
when  it  is  brought  before  him.  There  is  no  in- 
stance in  the  whole  history  of  the  law  where  the 
mere  grant  of  jurisdiction  to  a  particular  court 
without  any  words  of  exclusion  has  been  held 
to  oust  any  other  court  of  the  powers  which  it 
before  possessed.  Creating  a  new  forum  with 
concurrent  jurisdiction  may  have  the  effect  of 
withdrawing  from  the  courts  which  before  existed 
a  portion  of  the  cause  which  would  otherwise 
have  been  brought  before  them,  but  it  cannot 
affect  the  power  of  the  old  courts  to  administer 
justice  when  it  is  demanded  at  their  hands. 
Courtwright  v.  Bear  River  etc.  Mining  Co.,  30 
Cal.  580;  quoting  from  Delafield  v.  State  of 
Illinois,    2    Hill,    164. 

29.  Exclusive  jurisdiction.  Where  a  new  right 
is  provided  by  law,  together  with  a  particular 
remedy  for  its  violation,  and  the  statute  pre- 
scribes that  the  remedy  must  be  pursued  in  a 
certain  court,  the  jurisdiction  on  that  subject 
is  exclusive  in  such  court.  Reed  v.  Omnibus  R. 
R.    Co.,    33    Cal.    212. 

30.  Concurrent  jurisdiction.  Where  the  con- 
stitution grants  original  jurisdiction  of  a  par- 
ticular class  of  cases  to  one  court,  without 
expressly  excluding  other  courts  from  exercising 
any  jurisdiction  therein,  those  other  courts  are 
not  for  that  reason  necessarily  excluded  from 
exercising  concurrent  jurisdiction  in  the  same 
class  of  cases.  Courtwright  v.  Bear  River  etc. 
Mining  Co.,  30  Cal.  580  (commenting  on  and 
in  some  particulars  overruling  Zander  v.  Coe,  5 
Cal.  230;  Caulfield  v.  Stevens,  28  Cal.  118:  while 
the  case  of  Perry  v.  Ames,  26  Cal.  383;  Conant 
V.  Conant,  10  Cal.  249;  70  Am.  Dec.  717,  in 
matters  of  concurrent  jurisdiction,  etc.,  are  ap- 
proved). 

31.  Concurrent  Jurisdiction  of  equity  and  law 
courts.     Where    courts    of    law    and    equity    have 


§33 


COURTS   OF    JUSTICE    IN    GENERAL. 


26 


concurrent  jurisdiction,  if  a  court  of  law  has  first 
acquired  jurisdiction  and  decided  a  case,  a  court 
of  equity  will  not  interfere  to  set  aside  thie  judg- 
ment, unless  the  party  has  been  prevented  by 
some  fraud  or  accident  from  availing  himself  of 
the  defense  at  law.  Dutil  v.  Pacheco,  21  Cal. 
43S;  82  Am.  Dec.  749:  Truly  v.  Wanzer,  5  How. 
(U.  S.)  141;  12  L.  Ed.  88;  Allen  v.  Hopson,  1 
Freem.  (Miss.)  276;  Norton  v.  Wood,  22  Wend. 
524;  Smith  v.  Wclver,  9  Wheat.  532,  6  L.  Ed. 
152;    Haden  v.   Garden,    7  Leigh    (Va.),    157. 

32.  Equity  and  law  jurisdiction  over  fraud.  A 
court  of  equity  will  take  jurisdiction  in  cases 
of  fraud,  even  if  founded  on  the  express  pro- 
visions of  statutes,  and  especially  to  guard 
against  the  fraudulent  acts  of  a  debtor.  Heyne- 
man  v.  Dannenberg,  6  Cal.  376;  65  Am.  Dec. 
519;  Adams  v.  Woods,  8  Cal.  156;  68  Am.  Dec. 
313.  Equity  exercises  concurrent  jurisdiction 
with  courts  of  law  in  questions  involving  fraud, 
accident,  or  confidence,  and  there  are  cases  where, 
even  though  an  action  at  law  might  be  main- 
tained, yet  a  bill  in  equity  is  equally  proper. 
See  New  York  Ins.  Co.  v.  Roulet,  24  Wend.  505; 
Story  Eq.,  p  64;  People  v.  Houghtaling,  7  Cal. 
348. 

33.  Equity  jurisdiction,  specific  performance, 
etc.  The  ground  of  the  interference  of  chancery 
in  bills  quia  timet,  and  to  enforce  the  specific 
execution  of  an  agreement,  is  that  there  is  no 
other  adequate  remedy.  If  a  plain,  speedy,  un- 
embarrassed remedy  exists  at  law,  equity  will 
not  interfere.  As  a  general  rule,  equity  will  not 
interfere  in  cases  sounding  in  damages.  But  there 
are  exceptions  to  this  rule.  See  Buxton  v.  Lister, 
3  Atk.  384;  Adderley  v.  Dixon,  1  Sim.  &  S.  607. 
In  these  exceptional  cases,  the  jurisdiction  is  put 
on  the  ground  that  compensation  in  damages 
would  not  afford  a  full,  complete,  and  satisfactory 
remedy,  and  it  is  denied  when  this  is  attainable 
at  law.  The  jurisdiction  attaches  also  in  cases 
of  apprehended  injury,  as  by  sureties,  etc.,  where 
no  loss  has  as  yet  followed.  2  Story  Eq.,  p.  35. 
It  has  been  held  that  in  cases  of  a  general  cove- 
nant to  indemnify,  although  sounding  in  dam- 
ages, equity  will  decree  specific  performance. 
See  Ranelaugh  v.  Hayes,  1  Vern.  189;  Champion 
V.  Brown,  6  Johns.  Ch.  398;  Chamberlain  v. 
Blue.  6  Blackf.  (Ind.)  491;  White  v.  Fratt,  13 
Cal.  521.  But  equity  will  not  assume  jurisdiction 
where  a  remedy  at  law  exists,  and  compel  the 
Kurrender  or  cancellation,  or  enjoin  the  collec- 
tion of  a  promissory  note  or  other  instrument. 
Smith  V.  Sparrow,  13  Cal.  596,  affirming  Lewis 
V.  Tobias,  10  Cal.  574.  See  authorities  cited  in 
last-named   case. 

34.  Equity  jurisdiction  over  judgments  fraudu- 
lently altered,  etc.  When  a  judgment  was  ren- 
dered, and  afterward  fraudulently  altered  so  as 
to  include  a  new  party  not  in  the  first  instance 
included  in  the  judgment,  and  who  had  never 
been  served  with  process,  equity  has  jurisdiction 
of  the  case,  and  may  vacate  the  judgment.  (The 
remedy  by  appeal  might  suffice  in  ordinary  cases 
where  there  was  a  want  of  service.  See  facts 
of  case.)  It  made  no  difference  that  the  judg- 
ment was  void  on  its  face,  as  the  party  wr.s 
liable  to  be  harassed  by  it  and  it  was  about  to 
be  enforced  against  him.  Chester  v.  Miller,  13 
Cal.   558. 

35.  Equity  jurisdiction  complete  between  part- 
nership and  individual  creditors.  A  court  of 
equity  has  jurisdiction  in  cases  where  there  is 
a  conflict  between  partnership  and  individual 
creditors.  Conrov  v.  Woods.  13  Cal.  626;  73  Am. 
Dec.  605;  Place  v.  Sweetzer.  16  Ohio,  142; 
Washburn  v.  Bank  of  Bellows  Falls,  19  Vt.  278- 
286. 

36.  Equity  jurisdiction  to  decree  execution  of 
deed,  etc.  Juri<;diction  of  a  court  of  equity,  to 
decree  a  re-execution  of  a  deed,  is  unquestion- 
able. The  jurisdiction  is  maintained  in  such 
cases  where  the  destruction  would  create  a  defect 
in  the  deraignment  of  the  party's  title  and  thus 
embarrass  the  assertion  of  his  rights  to  the  prop- 
erty.     Cummings  v.  Coe,  10  Cal.  529. 

37.  Equity  jurisdiction  to  decree  alimony.  A 
court  of  equity  has  jurisdiction  to  decree  alimony 
in  an  action  which  has  no  reference  to  a  divorce 
or  separation.  Galland  v.  Galland,  38  Cal.  265,- 
see  dissenting  opin'on  in  same  case. 


38.  Jurisdiction  of  court  over  Infants  In  parti- 
tion suits.  Ibe  proceeding  for  partition  is  a 
special  proceeding,  and  the  statute  prescribes  its 
course  and  effect;  and  though  after  jurisdiction 
has  attached  errors  in  the  course  of  the  cause 
cannot  be  collaterally  shown  to  impeach  a  judg- 
ment, yet,  so  far  at  least  as  the  rights  of  infants 
are  involved,  the  court  has  no  jurisdiction,  ex- 
cept over  the  matter  of  partition,  and  has  no 
power  to  render  a  decree  divesting  an  infant's 
estate,  not  for  the  purpose  of  partition,  but  upon 
an  adverse  claim  by  other  parties.  Waterman  v. 
Lawrence,   19   Cal.   210;    79  Am.   Dec.   212. 

39.  Jurisdiction  of  courts  over  fugitives  from 
Justice  from  other  states.  A  court  of  general 
original  jurisdiction,  exercising  the  usual  powers 
of  a  common-law  court,  has  jurisdiction  to  hear 
and  determine  all  matters,  and  to  issue  all  neces- 
sary writs  for  the  arrest  and  transfer  of  a  fugi- 
tive criminal  to  the  authorized  agent  of  the  state 
from  whence  he  fled.  Whore  a  right  is  estab- 
lished by  law,  such  courts  can  apply  the  appro- 
priate remedy  and  issue  the  necessary  writs 
without  special  legislation.  Matter  of  Romaine, 
23   Cal.    585. 

40.  Jurisdiction  to  review  judgment  on  appeal 
lost,  if  appeal  is  not  taken  in  time.  If  a  court 
has  jurisdiction  to  review  a  judgment  on  an  ap- 
peal taken  within  one  year  after  rendition  of 
the  same,  yet  that  jurisdiction  is  lost  at  the 
expiration  of  the  year.  Haight  v.  Gay,  8  Cal. 
297,  68  Am.  Dec.  323;  affirmed  in  Milliken  v. 
Huber,    21    Cal.    166. 

41.  Effect  of  adjournment  of  court  for  term  on 
its  jurisdiction  of  cases  pending  and  decided.  A 
court  does  not  lose  jurisdiction  by  adjournment 
before  the  case  has  been  finally  determined;  and 
the  court  may  vacate  a  default  if  final  judg- 
ment has  not  been  entered,  even  though  the  court 
has  adjourned  for  the  term.  Wilson  v.  Cleave- 
land,  30  Cal.  193  (and  De  Castro  v.  Richardson, 
25  Cal.  49,  and  Willson  v.  McEvoy,  25  Cal.  169, 
were  held  not  to  be  inconsistent  with  this  rul- 
ing). In  a  proceeding  to  condemn  land  the  dis- 
trict court  did  not  lose  its  power  or  control  over 
the  case  by  reason  of  its  adjournments  at  any 
time.  It  was  unfinished  business,  and  necessarily 
continued  in  court  until  the  deed  was  made  and 
the  money  paid  over  under  the  order  of  the 
court.      Stanford    v.    Worn,    27    Cal.    174. 

42.  Jurisdiction  of  courts  over  cases  decided 
is  lost  by  adjournment  for  the  term.  After  the 
adjournment  of  the  term  the  court  loses  all  con- 
trol over  cases  decided,  unless  its  jurisdiction 
is  saved  by  some  motion  or  proceeding  at  the 
time,  except  in  the  single  case  provided  by 
statute,  where  the  summons  has  not  been  served, 
in  which  the  party  is  allowed  six  months  to 
move  to  set  the  judgment  aside  (Suvdam  v. 
Pitcher,  4  Cal.  280;  Robb  v.  Robb.  6  Cal.  21; 
Morrison  v.  Dapman,  3  Cal.  255;  Shaw  v.  Mc- 
Gregor, 8  Cal.  521:  Bell  v.  Thompson,  19  Cal. 
706;  Lattimer  v.  Ryan,  20  Cal.  632);  but  the 
court  has  power  to  make  an  order  ntinc  wro  tunc, 
or  to  correct  a  mere  clerical  error.  Swain  v. 
Naglee,  19  Cal.  127;  De  Castro  v.  Richardson, 
25   Cal.  49:   see  Willson  v.  McEvoy,   25   Cal.    169. 

43.  Where  general  jurisdiction  exists,  court 
has  full  jurisdiction  in  all  particulars  of  the  case. 
When  a  court  has  general  jurisdiction  of  a  sub- 
ject it  has  power  to  make  a  full  disposition  of 
the  matter  and  conclude  litigation  respecting  it. 
Kennedy  v.  Hammer.   19   Cal.   387. 

44.  Jurisdiction  cannot  be  conferred  by  agree- 
ment of  parties.  A  stipulation  by  parties  waiv- 
ing all  objections  to_  jurisdiction  cannot  confer 
on  a  district  court  jurisdiction  to  try  a  cause 
in  one  county,  when  by  operation  of  law  the 
court  is  adjourned  in  that  county  and  its  term 
commenced  in  another.  Bates  v.  Gage.  40  Cal. 
184:  Smith  v.  Chichester,  1  Cal.  409;  Domingues 
V.  Domingues,  4  Cal.  186;  Norwood  v.  Kenfield, 
34  Cal.  329.  To  sustain  a  personal  judgment 
the  court  must  have  jurisdiction  of  the  subject- 
matter  and  of  the  person.  Where  the  jurisdic- 
tion of  the  court,  as  to  the  subject-matter,  has 
been  limited  by  the  constitution  or  by  statute, 
the  consent  of  parties  cannot  confer  jurisdiction. 
But  when  the  limit  regards  certain  nersons,  they 
may,  if  competent,  waive  their  privilege,  and. 
this   will    give    the    court    jurisdiction.     If,    how- 


27 


COURTS  OF  RECORD. 


§34 


ever,  a  party  has  not  been  brought  into  court, 
and  docs  not  of  liinisi'll'  eoiuo  ii\  luul  waive  tlio 
necessity  of  service,  tlie  court  lias  no  jurisdic- 
tion over  him.  Gray  v.  ilawes,  8  Cat.  o(>2. 
There  is  in  tliese  cases,  iiowever,  a  decided  dis- 
tinction between  want  of  jurisdiction  and  iinnu- 
larity  in  procuring  jurisdiction.  Whitwell  v. 
Barbier,    7    C;il.    (i'S. 

45.  Jurisdiction  cannot  be  divested  by  agree- 
ment of  parties.  Tlie  agreements  of  parlies  can- 
not divest  tile  courts  of  law  or  eciuity  of  their 
proper  jurisdiction.  Muldrow  v.  Korris,  2  t'al. 
74;  5G  Am.  J)ec.  313.  The  consent  of  jiarlies 
cannot  niter  the  jurisdiction  of  courts.  liiddle 
Boggs  V.  ilerecd  Mining  Co.,  14  Cal.  279.  Nor 
can  liny  stipulation  made  by  them  affect  their 
jurisdiction.     Keed  v.  iiernal,  40  Cul.  628. 

46.  Jurisdiction  by  publication  of  summons. 
The  statutory  provisions  for  acquiring  jurisdiction 
of  the  person  of  the  defendant,  by  publication 
of  the  summons  instead  of  a  personal  service, 
must  be  strictly  pursued.  People  v.  Huber,  20 
Cal.  81;  Jordan  v.  Giblin,  12  Cal.  100;  Evertson 
V.  Thomas,  5  How.  Pr.  45;  Kendall  v.  Washburn, 

14  How.  Pr.  ;;so. 

47.  Jurisdiction  in  cases  of  publication,  notice, 
summons,  etc.  Stanford  v.  AVorn,  27  Cal.  174; 
Steinbach  v.  Lesse,  27  Cal.  295;  McMinn  v. 
Whelan,  27  Cal.  300;  Braly  v.  Seaman,  30  Cal. 
(jlO;  Sharp  v.  Uaugnev,  33  Cal.  507;  Townsend 
V.  Tallant,  33  Cal.  45;  91  Am.  Dec.  G17;  Hahn  v. 
Kellv,  34  Cal.  391;  94  Am.  Dec.  742;  Quivev  v. 
Porter.  37  Cal.  458;  McDonald  v.  Katz,  31  Cal. 
169;  Forbes  v.  Hyde,  31  Cal.  342;  Eitel  v.  Poote, 
39    Cal.   439;    see   post,  §§  1010-1017,    inclusive. 

48.  Jurisdiction  by  appearance  of  party  in 
court.  A  court  has  jurisdiction  of  the  person 
where  he  voluntarily  put  in  an  appearance  with- 
out the  issuance  of  summons.  Hayes  v.  Shat- 
tuck,   21    Cal.    51. 

49.  Jurisdiction  of  the  person  by  appearance 
in  an  action.  What  is  an  appearance?  See  post, 
§  1014;  Steinbach  v.  Lesse,  27  Cal.  295;  Seale  v. 
McLaughlin,   28   Cal.   668;    see  post,  §  406. 

50.  Jurisdiction  by  ad:nission  of  service.  See 
Sharp   v.   liruiinings,   35   Cal.    528. 

51.  Jurisdiction  over  persons  appearing  by  at- 
torney. Court  acquires  jurisdiction  only  of  those 
for  whom  the  attorney  finally  appears.  Forbes  v. 
Hyde,    31    Cal.    342. 

52.  Jurisdiction  of  special  cases.  Actions  to 
abate  nuisance.  The  constitution  permits  the 
legislature  to  confer  on  county  courts  ,jurisdic- 
tion  in  "special  cases"  ;  but  the  term  "special 
cases"  was  not  meant  to  include  any  class  of 
cases  for  which  the  courts  of  general  jurisdic- 
tion had  always  supplied  a  remedy.  The  special 
cases,  therefore,  must  be  confined  to  such  new 
cases  as  are  the  creation  of  statutes  and  the 
proceedings  under  which  are  unknown  to  the 
general  framework  of  courts  of  common  law  and 
equity.  The  action  to  prevent  or  abate  nui- 
sances is  not  one  of  these,  and  is  amply  pro- 
vided for  in  courts  of  general  jurisdiction.  In 
conferring  this  power  upon  county  courts,  the 
legislature  exceeded  its  constitutional  authority, 
and  the  portion  of  the  act  which  contains  it  is 
invalid.  Parsons  v.  Tuolumne  County  Water  Co., 
5  Cal.  43:  63  Am.  Dec.  76;  see,  however.  People 
V.   Day,    15   Cal.  91. 

53.  Jurisdiction  of  inferior  courts.  Inferior 
courts  cannot  go  beyond  the  authority  conferred 
upon  them  by  the  statute  under  which  they  act. 
Winter  v.   Fitzpatriek,   35   Cal.   273. 

54.  Jurisdiction  of  courts  of  executive  of  the 
state  by  writ  of  mandate,  etc.  Courts  having 
jurisdiction  of  writ  of  mandamus  may  issue  such 
a  writ  to  the  governor  to  compel  certain  minis- 
terial acts.  Harpending  v.  Haight,  39  Cal.  189: 
2  Am.  Rep.  432  (Temple,  J.,  dissenting  in  an 
elaborate    opinion).      Under    the    distribution    of 

§  34.     Courts  of  record.     The  courts  emimerated  in  the  first  three  sub- 
divisions of  the  last  preceding  section  are  courts  of  record. 

Courts  of  record.     See   Const.,   art.   VI,  §  12. 


powers  by  the  constitution  the  judiciary  are  not 
denied  jurisdiction  in  cases  where  a  fugitive  from 
justice  from  another  stale  is  held  in  custody  b.v 
virtue  of  a  warrant  issued  by  the  executive  of  this 
state.  The  very  object  of  tne  halieas  corpus  was 
to  reach  just  such  cases,  and  while  the  courts 
of  the  state  possess  no  power  to  control  the 
executive  discretion  and  compel  a  surrender,  yet 
he  having  once  acted,  that  discretion  may  be 
examined  into  in  every  case  where  the  liberty  oj 
the  subject  is  involved.  Ex  parte  Manchester, 
5    Cal.    237. 

55.  Jurisdiction  of  courts  to  inquire  into  legis- 
lative proceedings,  constitutionality  of  laws,  etc 
]\lany  provisions  of  the  constitution  are  addressed 
solely  to  the  legislative  department,  and  it  may 
be  said  that  Jill  those  provisions  which  require 
the  legislature  to  do  certain  things,  leaving  the 
means  and  manner  within  the  legislative  discre- 
tion, are  entirely  beyond  the  reach  of  the  judi- 
ciary, whose  functions  are  wholly  different  from 
those  of  the  law-making  power.  Some  of  the 
restrictions  upon  the  powers  of  that  body  are 
addressed  solely  to  the  legislature.  As  an  in- 
stance, I  may  mention  those  provisions  relating 
to  the  qualifications,  elections,  and  returns  of  its 
own  members;  and  although  the  constitution  ex- 
pressly requires  certain  qualifications  to  consti- 
tute a  member  of  either  house,  yet  each  house 
is  expressly  constituted  the  exclusive  judge  of 
those  questions,  and  this  court  could  not.  in  any 
manner,  review  such  a  decision.  The  true  rule 
seems  to  be  this:  that  when  the  right  to  deter- 
mine the  extent  and  effect  of  the  restriction  is 
either  expressly  or  by  necessary  implication  con- 
fided to  the  legislature,  then  the  judiciary  has 
no  right  to  interfere  with  the  legislative  con- 
struction, but  must  take  it  to  be  correct.  But 
in  all  other  cases  or  restriction  it  is  the  right 
and  duty  of  this  court  to  decide  the  effect  and 
extent  of  the  restriction  in  the  last  resort.  And 
as  to  the  question  whether  the  right  to  deter- 
mine the  extent  and  effect  of  the  restriction  is 
vested  in  the  legislature  or  in  the  judiciary,  this 
court  must  equally  determine  in  the  last  resort. 
Kougues  V.  Douglass,  7  Cal.  65;  see  also  Ex  parte 
Shrader,  33  Cal.  279.  But  a  court  cannot  review 
the  act  of  the  legislature  upon  a  question 
whether  or  not  a  certain  enterprise  (such  as  a 
railroad)  is  a  public  benefit  or  use.  The  legis- 
lative declaration  seems  to  be  held  final  as  to 
such  matters.  Napa  Valley  R.  R.  Co.  v.  Board 
of  Supervisors,  30  Cal.  437;  also,  as  to  juris- 
diction of  the  supreme  court  over  a  legislative 
act  declaring  certain  improvements  a  "public 
use,"  see  Sherman  v.  Buick,  32  Cal.  24i;  91 
Am.  Dec.   577. 

56.  Power  of  legislature  over  courts  and  judi- 
cial officers.  A  special  law  directing  a  certain 
court  to  grant  an  order  transferring  an  indict- 
ment pending  therein  against  a  party,  for  mur- 
der, to  another  district  court,  is  constitutional. 
People  V.  Judge  of  Twelfth  Dist.,  17  Cal.  547. 
This  case  also  comments  on  the  general  power 
of  the  legislature  over  courts.  It  has  been  held 
that  the  legislature  can  impose  no  duties  upon 
the  judiciary  but  such  as  are  of  a  judicial  char- 
acter. Tlie  legislature  cannot  delegate  to  a  court 
the  power  of  establishing  town  governments  or 
incorporating  colleges  and  the  like.  People  v. 
Nevada,  6  Cal.  143  :  Burgoyne  v.  Board  of  Super- 
visors, 5  Cal.  9;  Phelan  v.  San  Francisco,  20 
Cal.  39;  affirming  S.  C,  6  Cal.  531.  Nor  can  it 
authorize  a  county  judge  to  designate  the  time 
and  place  of  holding  an  election ;  such  is  not  a 
judicial  net.    Dickey  v.  Hurlburt,  5  Cal.  343. 

57.  Miscellaneous.  See  also  as  to  jurisdiction, 
etc.,  of  the  several  courts  mentioned,  post, 
§§42.  43,  44,  57.  54.  85.  86,  97,  106,  114,  115, 
116,  117,  121,  128,  129,  165,  187,  259,  and  notes. 


Legislation  §  34.     1.   Enacted  March  11,  1873. 

2.  Amended  by  Code  Amdts.  1S80.  p.  21, 
changing  word  "six"  to  "three,"  before  "sub- 
divisions." 


3.  Repeal    by    Stats.     1901,     p.  118;     uncon-- 
Btitutional.    See  note    ante,  §  5. 

Courts    of   record.     At    common    law,    a 
court   of  record  is  one  proceeding  accord- 


§§  35-39 


COURT   OF   IMPEACHMENT. 


28 


ing  to  the  course  of  the  common  law  (Ex 
parte  Thistleton,  52  Cal.  220),  in  which  the 
acts  and  judicial  proceedings  are  enrolled 
for  a  perpetual  memorial  and  testimony. 
Hahn  v.  Kelly,  34  Cal.  391;  94  Am.  Dec. 
742.     Any  court  having  a  clerk  and  bailiif, 


and  power  to  fine  and  imprison,  is  a  court 
of  record;  and  it  is  not  necessary,  to  con- 
stitute such  a  court,  that  it  have  a  seal. 
Ex  parte  Thistleton,  52  Cal.  220. 

CODE     COMMISSIONERS'    NOTE.     Hahn    v. 
Kelly,  34  Cal.  391;  94  Am.  Dec.  742. 


CHAPTER  II. 

COURT  OF  IMPEACHMENT. 


§  35.     fAmended  and  renumbered  section.] 
§  36.    Members  of  the  court. 
§  37.     Jurisdiction. 

§35.      [See  Legislation  §36.] 


§  38.    Officers  of  the  court. 

§  39.    Trial  of   impeachments  provided  for  in  the 
Penal  Code. 


§36.  Members  of  the  court.  The  court  of  impeachment  is  the  senate; 
when  sitting  as  such  court  the  senators  shall  be  upon  oath ;  and  at  least  two 
thirds  of  the  members  elected  shall  be  necessary  to  constitute  a  quorum. 

Amdts.     1880,     p.  22, 
p.  118  ;     uncon- 


Legislation  §  36.  1.  Enacted  March  11.  1873, 
as  §  35,  and  then  read:  "The  court  for  the  trial 
of  impeachments  is  composed  of  the  members  of 
the  senate,   or  a  majority  of  them." 


2.  Amended    by    Code 
and  renumbered  §  36. 

3.  Repeal     by     Stats.     1901, 
stitutional.     See  note  ante,  §  5. 


§  37.  Jurisdiction.  The  court  has  jurisdiction  to  try  impeachments,  when 
presented  by  the  assembly,  of  the  governor,  lieutenant-governor,  secretary 
of  state,  controller,  treasurer,  attorney-general,  surveyor-general,  chief  jus- 
tice of  the  supreme  court,  associate  justices  of  the  supreme  court,  and  judges 
of  the  superior  courts,  for  any  misdemeanor  in  office. 


Officers    liable    to    impeachment, 
art.  IV,  §  18;   Pen.  Code,  §  737. 


See    Const., 


Legislation  §  37.  1.  Enacted  March  11,  1873, 
as  §  36,  and  then  read:  "The  court  has  power  to 
try  impeachments,  when  presented  by  the  assem- 
bly, of  the  governor,  lieutenant-governor,  secre- 
tary of  state,  controller,  treasurer,  attorney- 
general,  surveyor-general,  justices  of  the  supreme 
court,  and  judges  of  the  district  courts,  for  any 
misdemeanor  in  office." 

2.  Amended  by  Code  Amdts.  18SO,  p.  22, 
and  renumbered  §  3  7. 

3,  Repeal  by  Stats.  1901,  p.  118;  uncon- 
stitutional.   See  note    ante,  §  5. 


Trial  of  other  civil  officers.  Civil  offi- 
cers, other  than  those  mentioned  in  this 
section,  are  to  be  tried  for  misdemeanor  in 
office,  as  the  legislature  may  provide  (In 
re  Marks,  45  Cal.  199),  and  a  complaint 
mav  be  filed  by  any  private  person.  Woods 
V.  Varnum.  85  Cal.  639;  24  Pac.  843. 

CODE  COMMISSIONERS'  NOTE.  Const.  1849, 
art.  IV,  §  18. 


§  38.     Officers  of  the  court.     The  officers  of  the  senate  are  the  officers  of 
the  court. 


Legislation  §  38.  1.  Enacted  March  11,  1873, 
as  §  37. 

2.  Re-enacted  by  Code  Amdts.  1880,  p.  22, 
as  §  33,    in    amending  Part   I. 


3.   Repeal    by    Stats.     1901,    p.  118;    uncon- 
stitutional.    See  note  ante,  §  5. 


§  39.     Trial  of  impeachments  provided  for  in  the  Penal  Code.     Proceed- 
ings on  the  trial  of  impeachments  are  provided  for  in  the  Penal  Code. 


Proceedings     for     removal.    See     Pen 

§  737   et   seq. 


as  §  39,  in  amending  Part  I. 

3.   Repeal     by     Stats.     1901,     p.  118;     uncon- 

T«o-i<.i,n«r,  a  on       t      T-        i    i  ■»«•       ui.    -o-vr.  stitutioual.     See  note  ante,  §  5. 
Legislation  §  39.      1.   Enacted  March  11,  1873, 
as  §  38.  CODE    COMMISSIONERS'    NOTE.     See    Pen. 

2.  Re-enacted    by    Code   Amdts.    1880,    p.  22,  Code,  SS  737-753,  inclusive. 


Code, 
Enacted  March  11,  1873, 


29  SUPREME  COURT — TERM  BEGINS,  WHEN.  §§  40,  41 

CHAPTER  III. 

SUPREME  COURT. 

§40.  Justices,  elections,  and  terms  of  office.  §51.  Original  jurisdiction. 

§41.  Computation  of  years  of  office.  §  ■''2-  Apijelliito  jurisdiction. 

§  42.  Vacancies.  §  ^•^-  I'owers  in  appealed  cases. 

§  43  Departments.  §  54.  Concurrence  necessary  to  transact  business. 

§44!  Apportionment  of  business.  §55.  Transfer  of  books,  papers,  and  actions. 

§45  Court  in  bank  §56.  Remittiturs  in  transferred  cases. 

§46!  Absence  or  disability  of  chief  justice.  §57.  Appeals    in    probate    proceedings    and    con- 

§  47.  Sessions.      Expenses.  tested  election  cases.  ,       „ 

§  48.  Adjournments.  S  58.  [Related    to    terms    of    district    court.      Re- 

§49.  Decisions  in  writing.  pealed.      §§  59-04.      Same.] 

§  50.  Jurisdiction  of  two  kinds. 

§  40.     Justices,  elections,  and  terms  of  office.     The  supreme  court  shall 

consist  of  a  chief  justice,  and  six  associate  justices,  who  shall  be  elected 

by  the  qualified  electors  of  the  state  at  large,  at  the  general  state  elections 

next  preceding  the  expiration  of  the  terms  of  office  of  their  predecessors 

respectively,  and  hold  their  offices  for  the  term  of  twelve  years  from  and 

after  the  first  Monday  after  the  first  day  of  January  next  succeeding  their 

election ;  provided,  that  of  the  justices  elected  at  the  general  state  election 

of  eighteen  hundred  and  seventy-nine,  the   chief  justice  shall   go  out   of 

office  at  the  end  of  eleven  years,  and  the  six  associate  justices  shall  have 

so  classified,  or  shall  so  classify  themselves,  by  lot,  that  two  of  them  shall 

go  out  of  office  at  the  end  of  three  years,  two  of  them  at  the  end  of  seven 

years,  and  two  of  them  at  the  end  of  eleven  years  from  the  first  Monday 

after  the  first  day  of  January,  eighteen  hundred  and  eighty;  and  an  entry 

of  such  classification  shall  have  been,  or  shall  be  made  in  the  minutes  o£ 

the  court  in  bank,  signed  by  them,  and  a  duplicate  thereof  filed  in  the  office 

of  the  secretary  of  state. 

Supreme  court.    See  Const.,   art.  VI,  §§2,  3.  58    Am.    Dec.    398;    People   v.    Seannell,    7 

EUgibility.    See  post,  §  156.  ,  „  =„  Cal.   432;    Satterlee    v.    San   Francisco,   23 

Jurisdiction  of  supreme  court.    See  post,  §§  50-  ,^   1    0-1  ^n  i  x      •         •    t-  „        -.^^ 

53  ^  ^  Cal.  314)  ;  and  one  entering  into  possession 

Acts    relating    to    supreme    court    commission.  of  the  office  by  color   of  right,  becomes  a 

See  post,  Appendi.'c,  tit.  "Courts."  .liidge    de   facto.     People    v.    Sassovich,    29 

Legislation  §  40.      1.  En.icted  March  11,  1873,  Cal.   480;    Hull   V.   Superior   Court,   63   Cal. 

and  then  read:    "The  supreme  court  consists  of  a  -ijq 
chief   justice    and   four   associate   justices,    elected 

at  the  judicial  elections,   and  holding  their  offices  CODE  COMMISSIONERS'  NOTE.     Const.,  art. 

for   the   term   of   ten   years   from   the   first   day   of  yi,  §§2,    3.      In    the   case    of    People    v.   Wells,    2 

January   next   after  their   election."  Cal.   198,  the  question  was  raised  whether,  in  the 

2.  Amended  by  Code  Amdts.  1880.  p.  22.  (.^se   where    a   judge    was    absent    from    the    state, 

3.  Repeal  by  Stats.  1901,  p.  118;  uncon-  the  legislature  could  authorize  the  governor  to 
stitutional.     See  note  ante,  §  5.  make    an    appointment    during    the    temporary   ab- 

■w-11- ^--L-'TA.  TT     T         ii  i'i.    i-  j;  sence   of   such    judge.      The   question   was   not  de- 

Eligibility.      Under    the    constitution     of  ci^ed  at  the  time,   the  court  disagreeing,  but  was 

1849,  justices  were  not  required  to  be  law-  afterward  considered,  and  it  was  decided  (S.  C, 

vers,  nor   even  licensed   attorneys.    People  2    Cal.    6I0)    that    such   an   absence   was   not   a 

•'^     -p.'  .     09    p    1     OOP  vacancy  in  office  which  could  be  filled  by  appoint- 

V.    Dorscy,    o.-    oai.    zyo.  ment  of  the  governor,  and  that  a  law  authorizing 

Title   to    office.      The   title   to    office,    of    a  such  an   appointment  was  unconstitutional.      Who 

iudge  of  the  supreme  court,  cannot  be  ques-  are  eligible  to  the  office  of  justice  of  the  supreme 

tioned,    except    in    an    action    brought    for  ««^rt.     See  post.  §  156. 
that  purpose   (People  v.  Olds,  3   Cal.   167; 

§  41.  Computation  of  years  of  office.  The  years  during  which  a  justice 
of  the  supreme  court  is  to  hold  office  are  to  be  computed  respectively  from 
and  including  the  first  IMonday  after  the  first  day  of  January  of  any  one 
year  to  and  excluding  the  first  Monday  after  the  first  day  of  January  of 
the  next  succeeding  year. 

Term,  when  commenced.    See  Const.,  art.  VI,  §  3.  term  to  serve  is  the  chief  justice." 

.^.^^  2.   Amendedby  Code  Amdts.  1880,   p.   23. 

Legislation  §  41.      1.   Enacted  March  11,  187/J.  3^   Repeal    by    Stats.     1901,    p.  lid;     uncon- 

and   then   read:    "The   iustice   having   the   shortest  stitutional.     See  note  ante,  §  5. 


§§42,43 


SUPREME  COURT. 


30 


§  42.  Vacancies.  If  a  vacancy  occur  in  the  office  of  a  justice  of  the 
supreme  court,  the  governor  shall  appoint  an  eligible  person  to  hold  the 
office  until  the  election  and  qualification  of  a  justice  to  fill  the  vacancy, 
which  election  shall  take  place  at  the  next  succeeding  general  election ; 
and  the  justice  so  elected  shall  hold  the  office  for  the  remainder  of  the 
unexpired  term  of  his  predecessor. 


Vacancy  in  office.    See  Const.,  art.  VI,  §  3. 

Vacancy.  See  subject  generally,  Pol.  Code, 
§§  995    et    seq. 

Absence  or  inability  of  chief  justice  to  act. 
See  post.  §  46. 

Vacancy  in  office  of  judge  does  not  aflfect  pend- 
ing proceedings.    See  post,  §  184. 

Legislation  §  42.  1.  Added  by  Code  Amdts. 
ISSO,  p.  23.  The  present  §  50  is  an  amend- 
ment of  the  original  §  42. 

2.  Repeal  by  Stats.  1901,  p.  118;  uncon- 
stitutional.    See  note  ante,  §  5. 

Absence  on  leave.  Absence  of  a  judge 
from  the  state  on  leave  is  not  such  a  va- 


cancy as  can  be  supplied  by  the  executive 
under  legislative  authority.  People  v. 
Wells,  2  Cal.  198;  People  v.^Mizner,  7  Cal. 
519;  People  v.  Whitman,  10  Cal.  38. 

Vacancy  and  removal.  It  is  only  in 
cases  where  there  is  no  incumbent  to  hold 
over,  that  the  appointee  of  the  executive 
can  fill  the  office.  People  v.  Whitman,  10 
Cal.  38.  The  executive  has  no  power  to 
remove  an  officer  whose  term  is  fixed  by 
the  constitution  or  statute.  People  v.  Miz- 
ner,  7  Cal.  519. 


§  43.  Departments.  There  shall  be  two  departments  of  the  supreme 
court,  denominated  respectively  department  one  and  department  two.  The 
chief  justice  shall  assign  three  of  the  associate  justices  to  each  department, 
and  such  assignment  may  be  changed  by  him  from  time  to  time ;  provided, 
that  the  associate  justices  shall  be  competent  to  sit  in  either  department, 
and  may  interchange  with  one  another  by  agreement  among  themselves, 
or  if  no  such  agreement  be  made,  as  ordered  by  the  chief  justice.  The 
chief  justice  may  sit  in  either  department,  and  shall  preside  when  so  sit- 
ting; but  the  justices  assigned  to  each  department  shall  select  one  of  their 
number  as  presiding  justice.  Each  of  the  departments  shall  have  the 
power  to  hear  and  determine  causes  and  all  questions  arising  therein,  sub- 
ject to  the  provisions  in  relation  to  the  court  in  bank.  The  presence  of 
three  justices  shall  be  necessary  to  transact  any  business  in  either  of  the 
departments,  except  such  as  may  be  done  at  chambers;  but  one  or  more  of 
the  justices  may  adjourn  from  time  to  time  with  the  same  effect  as  if  all 
were  present,  and  the  concurrence  of  three  justices  shall  be  necessary  to 
pronounce  a  judgment;  provided,  that  if  three  do  not  concur,  the  cause  may 
be  reheard  in  the  same  department,  or  transmitted  to  the  other  depart- 


1.   Added    by    Code    Amdts. 
present  §  51  is  an    amendment 


ment,  or  to  the  court  in  bank. 

Departments.     See   Const.,    art.   VI,  §  2. 

Legislation  §  43. 
1880,  p.  23.  The 
of  the  original  §  43. 

2.  Repeal    by    Stats.     1901,     p.  118;     uncon- 
stitutional.    See  note  ante,  §  5. 

Where    justices     are     equally     divided. 

Where  the  justices  qualified  to  act  are 
equally  divided,  there  must,  of  necessity, 
be  an  affirmance  of  the  judgment.  Luco  v. 
De  Toro,  88  Cal.  26;  11  L.  R.  A.  513;  25 
Pac.  983;  and  see  Ayres  v.  Bensley,  32 
Cal.  632;  and  see  also  Frankel  v.  Deides- 
heimer,  93  Cal.  73;  28  Pac.  794;  Santa 
Rosa  City  Railroad  v.  Central  Street  Rail- 
way Co.,  112  Cal.  436;  44  Pac.  733.  Where 
the  division  of  the  justices  is  as  to  the 
reversal  or  affirmance  of  the  judgment  on 
appeal  or  writ  of  error,  the  judgment  must 
be  affirmed;  the  general  rule  is,  that,  where 
the  motion  is  such  as  to  make  an  affirma- 


tive decision  indispensable  to  further 
progress  of  the  action,  an  equal  division 
will  stop  the  action;  but  where  the  mo- 
tion is  in  arrest  of  the  progress  of  the 
action,  an  equal  division  is  equivalent  to 
a  denial  of  the  motion,  and  the  case  pro- 
ceeds as  if  the  motion  had  not  been  made; 
thus,  a  rehearing  will  be  denied  by  an 
equal  division  of  the  judges,  and  likewise 
a  motion  for  a  new  trial,  an  appeal  from 
judgment,  and  an  application  for  the  ad- 
mission of  testimony.  Avres  v.  Bensley, 
32  Cal.  632. 

Rehearing.  Power  to  grant  a  hearing  in 
the  supreme  court,  after  a  determination 
in  a  district  court  of  appeal,  expires  thirty 
days  after  the  judgment  has  been  pro- 
nounced in  said  district  court  of  appeal; 
but  it  is  not  necessary  to  file  the  order 
granting  such  hearing  in  the  office  of  the 


31  COURT  IN  BANK — CHIEF  JUSTICE,  ABSENCE  OR  DISABILITY.  §§  44-46 

<;lerk    of    the    supreme    court    within    that  Number  of  Judges  necessary  to  transact  bust- 

time.  People  v.  Rucf,  14  Cal.  App.  581  j  '^^^  °^  ""»•  «•••«  """^  '^"■'-  <-'«■''•  ^^^-^-  ^^si. 
114   Pac.   48,   54. 

§  44,     Apportionment  of  business.     The  chief  justice  shall  apportion  the 

business  to  the  dcparliuents,  and  may,  in  his  discretion,  order  any  cause 
pending  before  the  court  to  be  heard  and  decided  by  the  court  in  bank. 
The  order  may  be  made  before  or  after  judgment  pronounced  by  a  depart- 
ment; but  when  a  cause  has  been  allotted  to  one  of  the  departments,  and 
a  judgment  pronounced  therein,  the  order  must  be  made  within  thirty  days 
after  such  judgment,  and  concurred  in  by  two  associate  justices;  and  if  so 
made,  it  shall  have  the  effect  to  vacate  and  set  aside  the  judgment.  Any 
four  justices  may,  either  before  or  after  judgment  by  a  department,  order 
a  cause  to  be  heard  in  bank.  If  the  order  be  not  made  within  the  time 
above  limited,  the  judgment  shall  be  final;  provided,  that  no  judgment  by 
a  department  shall  become  final  until  the  expiration  of  the  period  of  thirty 
days  aforesaid,  unless  approved  by  the  chief  justice  in  writing,  with  the 
concurrence  of  two  associate  justices. 

Similar  provision  In  constitution.     See  Const.,  ment  of  the  original  §  44. 
art.  VI.  §  2.  2.   Repeal    by    Stats.     1901,    p.  118;     uncon- 

Legislation  §  44.      1.   Added    by    Code  Amdts.  stitutional.     See  note  ante,  §  5. 

18SO,    p.  23.     The    present  §  52    is    an  amend- 

§  45.  Court  in  bank.  The  chief  justice  or  any  four  justices  may  convene 
the  court  in  bank  at  any  time,  and  the  chief  justice  shall  be  the  presiding 
justice  of  the  court  when  so  convened.  The  presence  of  four  justices 
shall  be  necessary  to  transact  any  business,  and  the  concurrence  of 
four  justices  present  at  the  argument  shall  be  necessary  to  pronounce  a 
judgment  in  the  court  in  bank;  provided,  that  if  four  justices  so  present 
do  not  concur  in  a  judgment,  then  all  the  justices  qualified  to  sit  in  the 
cause  shall  hear  the  argument,  but  to  render  a  judgment  a  concurrence  of 
four  justices  shall  be  necessary ;  and  every  judgment  of  the  court  in  bank 
shall  be  final,  except  in  cases  in  which  no  previous  judgment  has  been  ren- 
dered in  one  of  the  departments,  and  in  such  cases  the  judgment  of  the 
court  in  bank  shall  be  final,  unless  within  thirty  days  after  such  judgment 
an  order  be  made  in  writing,  signed  by  five  justices,  granting  a  rehearing. 

Court  in  bank.    See  Const.,  art.  VI,  §  2.  case  is  submitted  on  briefs  alone,   all  the 

Legislation  §  45.     1.  Added    by    Code    Amdts.  justices,    having    an    equal    opportunity    to 

ISSO,    p.  24.     The    present  §  53    is    an    amend-  read    the    argument,    are    deemed    to    have 

"2!  ReS'bfsta^ts'.'-iaoi,    p.  118;    uncon-  been  present  at  the  argument,  within  the 

stitutional.    See  note  ante,  §  5.  meaning    of    the    constitution,    and    all    or 

Hearing  in  bank.     A  rehearing  in  bank  ^ny   of   them   are   qualified  to   join   in   the 

will  not  be   granted,  in   a  case  where   the  '}'l'^'°,^- /^'^^.^^   ^-   Newman,   148   Cal. 

cause  has  been  heard  and  decided  by  the  ■o'^.-h^^^i^l'   'mf      1                   •  •       xu 

supreme   court   in   department,    and   after-  ,  Rehearing.     The  clause  requiring  the  or- 

wards   by   the    court   in   bank.    Hegard   v.  ^^'  granting  a  rehearing  to  be  "signed  by 

ri  ^^£       •      T             „     n^     rrn   n^i     cox     TA  "ve   lusticcs,     IS   Unconstitutional.     Estate 

California  Insurance   Co.,   72   Cal.   53o;   14  „  _  •'           01   o  1    hac     a  t     -da     -r,.     <ii 

p         ISO     o-Q  °^  Jessup,  81  Cal.  408;  6  L.  E.  A.  o94:  21 

Concurrence   of  four   judges.     Where    a       ^^'^-   ^'^'  '^"  ^^^^   '^-'  -^"'■^• 

§46.  Absence  or  disability  of  chief  justice.  In  case  of  the  absence  of 
the  chief  justice  from  the  place  at  which  the  court  in  bank  is  held,  or  his 
inability  to  act,  the  associate  justices  shall  select  one  of  their  own  number 
to  perform  the  duties  and  exercise  the  powers  of  the  chief  justice  during 
such  absence  or  inability  to  act. 


§  §  47,  48  SUPREME  COURT.  32 

Absence    or    disability    of    chief    justice.     See  1880,    p.  24.     The    present  §  54    is    an    amend- 

Coust.,    art.    VI,  §  2.  ment   of   the   original  §  46. 

■  ,   ..       „  ...       -       .jj    J     ,.       ^   J        .     J*  3.   Repeal     by     Stats.     1901,     p.  118;     uncon- 

Legislation  §  46.      1.   Added    by    Code    Amdts.  stitutional.    See  note  ante,  §  5. 

§  47.  Sessions.  Expenses.  The  supreme  court  shall  always  be  open  for 
the  transaction  of  business.  It  shall  hold  regular  sessions  for  the  hearing 
of  causes,  either  in  bank,  or  in  one  or  both  of  its  departments,  at  the  capital 
of  the  state,  commencing  on  the  first  Mondays  of  May  and  second  IMondays 
of  November;  at  the  city  and  county  of  San  Francisco,  commencing  on  the 
second  Mondays  of  January  and  third  Mondays  of  July;  and  at  the  city 
of  Dos  Angeles,  commencing  on  the  first  Mondays  of  April  and  second 
Llondays  of  October;  and  special  sessions  at  either  of  the  above-named 
places  at  such  other  times  as  may  be  prescribed  by  the  justices  thereof. 
The  justices  and  officers  of  the  supreAie  court  shall  be  allowed  their  actual 
traveling  expenses  in  going  to  and  from  their  respective  places  of  residence 
upon  the  business  of  the  court,  or  to  attend  its  sessions.  If  proper  rooms 
in  which  to  hold  the  court,  and  for  the  accommodation  of  the  officers 
thereof,  are  not  provided  by  the  state,  together  with  attendants,  furniture, 
fuel,  lights,  and  stationery,  suitable  and  sufficient  for  the  transaction  of 
business,  the  court,  or  any  three  justices  thereof,  may  direct  the  clerk  of 
the  supreme  court  to  provide  such  rooms,  attendants,  furniture,  fuel,  lights, 
and  stationery ;  and  the  expenses  thereof,  certified  by  any  three  justices 
to  be  correct,  shall  be  paid  out  of  tlie  state  treasury,  for  which  expenses, 
and  to  defray  the  traveling  expenses  of  the  justices  and  officers  of  the 
supreme  court  above  mentioned,  a  sufficient  sum  shall  be  annually  appro- 
priated out  of  any  funds  in  the  state  treasury  not  otherwise  appropriated. 
The  moneys  so  appropriated  shall  be  subject  to  the  order  of  the  clerk  of 
the  supreme  court,  and  be  by  him  disbursed  on  proper  vouchers,  and  the 
same  shall  be  accounted  for  by  him  in  annual  settlements  with  the  con- 
troller of  state  on  the  first  Monday  of  December  of  each  year. 

Always    open.      See    Const.,    art.    VI,  §  2 ;    and  subject   to   the   order  of   the   clerk   of   said   court, 

post,  §  134.  and   by    him    disbursed   on    proper    vouchers,    and 

T..^-„i,f,-^.,  a  Ar?       ^      -n'        t  A  T^ir       1    11    1  a'v'>  ^'^"^  ^^^'^  ^^^''  ^^  accounted  for  by  him,  in  annual 

Legislation  §  47.      1.   Enacted  March  11,  1873,  settlements   with    the    controller   of   state,    on   the 

as§oO     and  then  read:      The  terms  ol   this  court  ^,.^4    Monday    of    December    of    each    year."      The 

must    be    held    at    the    capital    of    the    state.      If  §  51  referred  to  supra  was  embodied  "in  the  pres- 

proper    rooms    in    which    to    hold    the    court,    and  gnt  §  47  in   1880,  when  Part  I  was   amended,   and 

for  the  chambers  of  the  justices,  are  not  provided  ^,^5    jj(jjjgji   y^y   q^^^   Amdts.    1877-78     p    22     and 

by  the   state,   together  with  attendants,   furniture  read,   "The  Justices  and  officers  of  the  court 'shall 

fuel,    ights,  and  stationery,  suitable  and  suftieient  be    allowed    their    actual     traveling     expenses    in 

for    the    transaction    of    business,    the    court    may  g^jng    to    and    from    San   Francisco,    Los    Angeles, 

direct  the  sheriff  of  the  county  in  w-hich  it  is  held  and   the    state   capitol   for   the  purpose   of  holdinff 

to  provide  such  rooms,  attendants,  furniture,  fuel,  terms    of    court,    as    prescribed    in    sections    forty 

lights,   and   stationery;    and  the   expenses   thereof,  jji^e  and  fifty  of  this  chapter" 

certified  by   a  majority   of  the  justices   to   be   cur-  3.   Amended  by  Code  Amdts.  1880,  p   24    and 

rect,  must  be  paid  out  of  the  state  treasury.  renumbered  §  47                                              '  «-        . 

2.   Amended  by   Code  Amdts.   1877-78,  p.  22, 

(1)  by  changing  the  first  sentence  to  read,  "The  Payment   of   expenses.     An   irreo'ularity 

January   and  July   terms   of   this   court   shall  be  in  the  indorsement  of  the  state  controller's 

held  at  the  city  and  county  of  San  Irancisco,  the  4.     *          1.1                                   £  ^'-'"^*"^^^'  ^ 

April  and  October  term  at  the  city  of  Los  Angeles,  warrant     lor     the     expenses     Ot     the     court 

and    the    May    and    November    terms    at    the    state  does   not   render  it   non-transferable   bv   in- 

capi^ol";    (2)  by  changing  the  words  "chambers  dorsement:  and  the  fact  that  the  items  of 

of  the  justices     to     accommodation  of  the  officers  ^         ,            ,        ^^           -,      , 

thereof";   and  (3)  by  adding,  at  the  end  of  the  expense    ordered    and    allowed    have    not 

section,  the  words,   "for  which  e.xpenses,  and  to  been    actually   paid   by  the    clerk  will   not 

defray  the  traveling  expenses  of  the  justices  and  justify  the  treasurer  in  refusing  payment. 

oflticers    of   the    court,    as   specified   in  §  51    of   this  -\t   i.-         t    t>      1             xr        1  i     i-x     /^    f    ■>./^r,       - 

code,    a    sufficient    sum    shall    be    annually    appro-  -[National    liank    V.    Hcrold,     /4    Cal.    603;    £) 

priated    out    of    any    funds    in    the    state    treasury  Am.    St.    Eep.    476;     16    Pac.    507. 
not  otherwise  appropriated;   said  moneys  shall  be 

§  48.  Adjournments.  Adjournments  from  day  to  day,  or  from  time  to 
lime,  are  to  be  construed  as  recesses  in  the  sessions,  and  shall  not  prevent 
the  court,  or  either  of  its  departments,  from  sitting  at  any  time. 


33 


DECISIONS  IN  WRITING ORIGINAL  JURISDICTION. 


§§49-51 


Terms  of  courts.  This  section,  with  §  74.  post, 
does  away  witli  the  terms  of  courts.  And  see 
post,  §§  ,SS.    101,   as  to  justices'   courts. 

Legislation  »  .18.       1.   Added    by    Code    Amdts. 


1880,  p.  2.5,  to  supersede  §§  46,  48,  49,  pro- 
vidiiiK  for  adjournments  and  terms  of  court,  and 
to  conform  to  the  new  constit\ition. 

2.   Kepeal     by     Stats.     1901,     p.  119;     uncon- 
stitutional.   See  note  ante,  $  5. 


§  49.  Decisions  in  writing.  In  the  determination  of  causes,  all  decisions 
of  tlie  supreme  court  iu  bank,  or  in  departments,  shall  be  given  in  writing, 
and  the  grounds  of  the  decision  shall  be  stated. 


Decisions  to  be  in  writing.  See  Const.,  art.  vi, 
§2. 

Legislation  8  49.  1.  Added  hy  Code  Amdts. 
1880,  p.-^r>:  based  on  Stats.  18G3,  p.  .3.T4,  but 
was  not  codified  in  1872,  as  tlie  supreme  court, 
in  Houston  v.  Williams,  13  Cal.  24  [73  Am.  Doc. 
5G.')|,  had  held  unconstitutional  the  provision  re- 
quiring that  "the  reasons  or  grounds  of  the 
decision  shall  be  given  in  a  written  opinion  ac- 
companying the  same";  the  objectionable  feature 
being   eliminated   in    the   present    section. 

2.  Repeal  by  Stats.  1901,  p.  119;  uncon- 
stitutional.   See  note  ante,  §  5. 

CODE    COMMISSIONEES'    NOTE.       The    pro- 


vision of  the  act  of  1863  (Stats.  1863,  p,  334), 
requiring  the  court  to  give  written  opinion  in 
important  ca.ses,  has  been  omitted.  In  Houston 
V.  Williams,  13  Cal.  24,  73  Am.  Dec.  5(5.t,  it  was 
held  that  the  constitutional  duty  of  the  court 
was  discharged  by  the  rendition  of  decisions; 
that  the  legislature  could  no  more  require  the 
court  to  state  the  reasons  for  its  decisions  than 
the  court  could  require  the  legislature  fo  accom- 
pany the  statutes  with  the  reasons  for  their  en- 
actment. Says  Justice  Field:  "No  such  power 
can  exist  in  the  legislative  department,  or  be 
sanctioned  by  any  court  which  has  the  least 
respect  for  its  own  dignity  and  independence." 


§  50.     Jurisdiction  of  two  kinds.     The  jurisdiction  of  the  supreme  court 
is  of  two  kinds : 


1.  Original ;  and, 

2.  Appellate. 


Jurisdiction  generally, 
of  this  chapter. 


See  subsequent  sections 


Legislation  §  50. 
as  §  42. 


1.   Enacted  March  11,  1873, 


2.  Amended    by    Code    Amdts.    1880,    p.  25, 

(1)      renumbering     the      section  §  50,      and      (2) 
changing    the    word    "this"    to    "supreme." 

3.  Kepeal     by     Stats.     1901,     p.  119;     uncon- 
stitutional.   See  note  ante,  §  5. 


§  51.  Original  jurisdiction.  In  the  exercise  of  its  original  jurisdiction  the 
supreme  court  shall  have  power  to  issue  writs  of  mandamus,  certiorari,  pro- 
hibition, and  habeas  corpus;  and  it  shall  also  have  power  to  issue  all  other 
writs  necessary  and  proper  to  the  complete  exercise  of  its  appellate  juris- 
diction. 

those  cases  which  call  in  question  the  juris- 
diction of  an  inferior  court,  board,  or  offi- 
cer (Peojile  V.  Johnson,  30  Cal.  98) ;  and 
the  writ  will  be  granted,  only  when  the  act 
complained  of  is  judicial  in  its  character. 
Spring  Valley  Water  Works  v.  Brvant,  52 
Cal.  132;  Lamb  v.  Sehottler,  54  Cal.  319 
People  V.  Board  of  Education,  54  Cal.  375 
Spring  Valley  Water  Works  v.  San  Fran 
Cisco,  82  Cal.  286;  16  Am.  St.  Eep.  116 
6  L.  R.  A.  756;  22  Pac.  910,  1046 
Quinchard  v.  Board  of  Trustees,  113  Cal. 
664;  45  Pac.  856.  The  writ  cannot  be  used 
as  a  substitute  for  an  appeal,  where  the 
time  for  taking  the  appeal  has  elapsed 
(Faut  V.  Mason,  47  Cal.  7),  as  it  does  not 
lie  where  there  is  an  appeal  (People  v. 
Shepard,  28  Cal.  115;  Stuttmeister  v.  Supe- 
rior Court,  71  Cal.  322;  12  Pac.  270),  or 
where  there  is  any  other  plain,  speedy,  or 
adequate  remedv  (Faut  v.  Mason,  47  Cal.  7; 
Noble  V.  Superior  Court,  109  Cal.  523;  42 
Pac.  155);  neither  can  it  be  used  as  a  writ 
of  error,  to  correct  errors,  either  of  law  or 
of  fact,  committed  within  the  jurisdiction 
of  the  lower  court  or  tribunal.  Central  Pa- 
cific K.  K.  Co.  V.  Board  of  Equalization,  46 
Cal.  667;  Buckley  v.  Superior  Court,  96  Cal. 


Original  jurisdiction.    See  Const.,  art.  vi,  §  4. 

Mandamus.  See  Const.,  art.  vi,  §  4;  see  also 
post.  §§  54,   76,   165,   1084  et  seq.,  1108-1110. 

Certiorari.  See  Const.,  art.  vi,  §  4 ;  see  also 
post,  §§  .54,    76,    165,    1067   et   seq.,    1108-1110. 

Prohibition.  See  Const.,  art.  vi,  §  4 ;  see  also 
post,  §§  54,   76,   165,   1102  et  seq.,   1108-1110. 

Habeas  corpus.  See  Const.,  art.  vi,  §  4 ;  also 
post,  §§  54,  76,  165.  Generally.  Pen.  Code, 
§§  14  73  et   seq. 

Injunction.  Post,  §§  54,  76,  165,  356,  525  et 
seq.,  745,   l:Ul. 

Scire  facias  abolished.    Post,  §  802. 

Quo  warranto.    Post,  §§  76,  803-810. 

Vvrit. 

1.  Defined.    Ante,  §  17. 

2.  Seal.    Post,  §  153. 

3.  Issuance.     Post,  §  54. 

4.  Service  by  telegraph.    Post,  §  1017. 
Powers   of   single  justice   to  issue   writs.    See 

post,  §  54. 

Ne  exeat.    See  post,  §§  478  et  seq. 

Legislation  §  51.  1.  Enacted  March  11,  1872, 
as  §  43  (based  on  Stats.  1863,  p.  334),  and  then 
read:  "Its  original  jurisdiction  extends  to  the 
issuance  of  writs  of  mandate,  review,  prohibition, 
habeas  corpus,  and  all  writs  necessary  to  the 
e.xercise  of  its  appellate  jurisdiction." 

2.  Amended  by  Code  Amdts.  1880,  p.  25,  and 
renumbered  §  51. 

3.  Kepeal  by  Stats.  1901,  p.  119;  unconsti- 
tutional. See  note  ante,  §  5.  For  original  §  51, 
see  ante.  Legislation  §  47. 

Certiorari.     The   jurisdiction   of   the   su- 
preme court,  upon  certiorari,  is  limited  to 
1  Fair. — 3 


§51 


SUPREME    COURT. 


34 


119;  31  Pac.  8;  Sherer  v.  Superior  Court,  96 
Cal.  654;  31  Pac.  565;  Johnston  v.  Board  of 
Supervisors,  104  Cal.  390;  37  Pac.  1046. 

Mandamus.  The  supreme  court  has  origi- 
nal iurisdiction  to  issue  the  writ,  which  is 
provided  for  by  §§  54,  76,  165,  1084,  1108, 
1110,  post.  Hyatt  v.  Allen,  54  Cal.  353; 
Scott  V.  Boyle,  164  Cal.  321;  128  Pac.  941. 
An  application  for  the  writ  will  not  be  en- 
tertained by  the  district  court  of  appeal, 
unless  accompanied  by  a  showing  why  it 
was  not  applied  for  in  the  lower  court,  and 
the  reason  for  its  being  made  in  the  first 
instance  in  the  appellate  court.  Gray  v. 
Mullins,  15  Cal.  App.  118;  113  Pac.  694. 

Prohibition.  At  common  law,  the  writ 
of  prohibition  was  an  original  remedial 
writ,  provided  as  a  remedy  for  the  en- 
croachment of  jurisdiction;  and,  notwith- 
standing this  section  empowers  the  courts 
of  this  state  to  issue  the  writ  to  municipal 
corporations,  or  to  boards  clothed  with  gov- 
ernmental functions,  it  still  retains  its 
character  as  a  prerogative  writ,  to  be 
issued  only  in  the  sound  discretion  of  the 
court.  It  ought  not  to  issue  to  arrest  any 
legislation  ponding  before  a  body  author- 
ized to  legislate  with  reference  to  matters 
of  public  interest.  Spring  Valley  Water 
Works  V.  San  Francisco,  52  Cal.  Ill;  and 
see  Maurer  v.  Mitchell,  53  Cal.  289;  Lamb 
V.  Sehottler,  54  Cal.  319;  People  v.  Board  of 
Election  Commissioners,  54  Cal.  404;  Cam- 
ron  V.  Kcufield,  57  Cal.  550;  Spring  Valley 
Water  Works  v.  Bartlett,  63  Cal.  245; 
Hobart  v.  Tillson,  66  Cal.  210;  5  Pac.  83; 
Spring  Valley  Water  Works  v.  San  Fran- 
cisco, 82  Cal.  286;  16  Am.  St.  Rep.  116;  6 
L.  E.  A.  756;  22  Pac.  910,  1046.  A  district 
court  of  appeal  has  concurrent  jurisdiction 
with  the  supreme  court  in  original  proceed- 
ings for  a  writ  of  prohibition;  and  a  denial, 
by  the  district  court  of  appeal,  of  an  appli- 
cation for  the  writ,  on  its  merits,  is  a  bar 
to  a  subsequent  application. in  the  supreme 
court;  an^  the  only  effectual  method  of  ob- 
taining the  intervention  of  the  supreme 
court,  in  proceedings  before  a  district  court 
of  appeal  for  a  writ  of  prohibition,  is  an 
application  for  a  transfer  of  the  case  to  the 
supreme  court  for  review.  Dawson  v.  Supe- 
rior Court,  158  Cal.  73;  110  Pac.  109. 

Habeas  corpus.  This  writ  is  provided 
for  by  §§  1473  et  seq  of  the  Penal  Code. 
If  the  justices  of  a  district  court  of  appeal 
are  unaVdc  to  concur  in  a  judgment  upon 
application  for  a  discharge  on  habeas  cor- 
pus, the  writ  must  be  denied.  Application 
of  Ladue,  15  Cal.  App.  188;  117  Pac.  586; 
Application  of  Galivan,  17  Cal.  App.  624; 
120  Pac.  1123. 

Writs  abolished.  The  writ  of  ne  exeat  is 
abolished  (§  24,  ante,  §  478,  post),  as  is  also 
the  writ  of  scire  facias  (§  802,  post). 

Necessary  to  appellate  jurisdiction.  The 
phrase  "all  other  writs"  includes  such  other 
writs  as  are  not  enumerated,  which  can 
issue  only  for  the  purpose  of-  completing 
the  exercise  of  its  appellate  jurisdiction  by 


the  supreme  court.  Hyatt  v.  Allen,  54  Cal. 
353.  The  supreme  court  has  power  to  frame 
and  issue  all  writs  and  make  all  rules 
necessary  to  the  exercise  of  its  appellate 
jurisdiction,  where  the  statute  has  not  pro- 
vided one  (Somers  v.  Somers,  Si  Cal.  608; 
22  Pac.  967);  and  in  those  cases  where 
the  constitution  has  conferred  a  right  of 
appeal  to  the  sujireme  court,  and  the  legis- 
lature has  failed  to  provide  a  mode  of 
appeal,  that  court  will  adopt  a  suitable 
mode.  People  v.  Jordan,  65  Cal.  644;  4  Pac. 
683. 

Original  jurisdiction  of  court  of  last  resort  In 
mandamus.  See  notes  20  Ann.  Cas.  184;  58 
L.  R.  A.  833;  38  L.  R.  A.   (N.  S.)   1000. 

CODE  COMMISSIONERS'  NOTE.  Const.,  art. 
vi,  §  4;  Stats.  1863,  p.  334.  The  provision, 
that  the  writ  of  habeas  corpus  may  be  issued  by 
each  of  the  justices,  and  made  returnable  before 
the  court,  or  any  justice  thereof,  or  before  any 
district  court,  etc.,  relates  rather  to  practice 
than  power  of  the  court,  and  has  been  inserted 
in  the  Penal  Code,  under  the  chapter  relating  to 
habeas  corpus.  Part  II,  Title  XII. 

1.  Issuance  of  the  writs  generally.  Before 
the  amendments  of  1862  to  article  vi  of  the  state 
constitution,  the  supreme  court  had  only  appel- 
late jurisdiction  to  issue  any  of  the  writs  men- 
tioned in  the  text,  except  habeas  corpus.  But 
the  supreme  court,  even  then,  might  issue  any 
of  these  writs  in  aid  of  its  appellate  powers.  See 
Ex  parte  Attorney-General,  1  Cal.  85;  White  v. 
Lighlhall,  1  Cal.  347;  People  v.  Turner,  1  Cal. 
143;  52  Am.  Dec.  295;  People  v.  Turner,  1  Cal. 
152  ;  People  v.  Shear,  7  Cal.  139  ;  Warner  v.  Hall, 
1  Cal.  90;  Purcell  v.  McKune,  14  Cal.  230;  Mili- 
ken  V.  Huber,  21  Cal.  166.  Since  the  amend- 
ments to  the  constitution  it  has  original  jurisdic- 
tion to  issue  these  writs.  Tyler  v.  Houghton,  25 
Cal.  26;  Miller  v.  Board  of  Supervisors,  25  Cal. 
93.  See  the  above-cited  cases  as  to  when  these 
writs  lie. 

2.  Writ  of  mandate  (mandamus).  See  cases 
cited  above,  and  also  People  v.  Weston,  28  Cal. 
640;  People  v.  Hubbard,  22  Cal.  36;  People  v. 
Judge  of  Twelfth  District,  17  Cal.  547;  People 
V.  Sexton,  24  Cal.  79;  People  v.  Pratt,  28  Cal. 
166;  87  Am.  Dec.  110;  Hopper  v.  Kalkman,  17 
Cal.  517;  Brooks  v.  Calderwood,  19  Cal.  124; 
Francisco  v.  Manhattan  Ins.  Co.,  36  Cal.  283.  It 
will  compel  the  performance  of  a  ministerial  act. 
Harpending  v.  Haight,  39  Cal.  189;  2  Am.  Rep. 
432.  As  to  when  this  writ  lies,  its  effect,  appli- 
cation,  etc.,  see  post,   §§  1034-1097r 

3.  Writ  of  review  (certiorari).  As  to  cases 
where  a  writ  of  review  (certiorari)  has  been  held 
to  issue,  see  Clary  v.  Hoagland,  5  Cal.  476;  Cali- 
fornia Northern  R.  R.  Co.  v.  Board  of  Super- 
visors, 18  Cal.  671;  Comstock  v.  Clemens,  19 
Cal.  77;  Murray  v.  Board  of  Supervisors,  23  Cal. 
492;  Chard  v.  Harrison,  7  Cal.  113;  Ex  parte 
Field,  1  Cal.  187;  People  v.  Turner,  1  Cal.  143; 
52  Am.  Dec.  295;  People  v.  Turner.  1  Cal.  152; 
Wratten  v.  Wilson,  22  Cal.  465;  People  v.  Su- 
pervisors of  El  Dorado  County,  8  Cal.  53  ;  Miller 
V.  Board  of  Supervisors,  25  Cal.  94;  Hastings  v. 
San  Francisco,  18  Cal.  49.  It  does  not  lie  when 
an  appeal  may  be  taken.  Clary  v.  Hoagland,  13 
Cal.  173;  People  v.  Shepard,  28  Cal.  115;  Gray 
V.  Schupp,  4  Cal.  185.  It  cannot  be  taken  be- 
fore the  inferior  tribunal  has  completed  its  judg- 
ment. Wilson  V.  Board  of  Supervisors,  3  Cal. 
386;  and  see  also,  as  to  its  issuance  and  effect. 
People  V.  Board  of  Delegates,  14  Cal.  479;  Robin- 
son V.  Board  of  Snpervisoj-s,  16  Cal.  208;  El 
Dorado  County  v.  Elstner,  18  Cj.1.  144;  see  also 
Central  Pacific  R.  R.  Co.  v.  Board  of  Equaliza- 
tion,  32   Cal.   582;    34   Cal.   352. 

4.  Review.  The  jurisdiction  of  the  Buprenie 
court,  under  the  amended  constitution,  to  review 
the  yjroceedings  of  inferior  courts,  boards,  and 
officers  upon  certiorari,  is  limited  by  the  very 
nature  of  the  writ  to  cases  where  the  jurisdic- 
tion of  the  inferior  court,  board,  or  officer  is 
impeached.      People    v.    Johnson,    30    Cal.    101. 


35 


APPELLATE   JURISDICTION. 


§52 


Certiorari,  or  writ  of  review,  lies  to  review  the 
proceedings  of  infeiicir  tribunals,  etc.,  only  when 
there  hns  been  an  exocss  of  jurisdiction.  I'coiile 
V.  Johnson,  30  Cnl.  98;  see  Ex  parte  Perkins, 
18  Cal.  60;  Coulter  v.  Stark,  7  Cal.  211;  Kk 
parte  Hanson,  2  Cal.  263:  People  v.  Dwineile, 
29  Cal.  632:  Application  of  Spring  Valley  Water 
Works,  17  Cal.  I.'t2.  But  not  to  correct,  merely, 
errors  of  law.  People  v.  Burney,  29  Cal.  459. 
Under  the  provisions  of  the  constitution,  a  writ 
of  review  (certiorari)  can  be  rifrht fully  issued 
from  the  office  of  the  clerk  of  the  supreme  court, 
only  upon  an  order  of  the  court.  Smith  v.  Oak- 
land, 40  Cal.  481;  see  further,  post,  §§1066- 
1077. 

5.   Writ    of    prohibition.      OriKinal    jurisdiction 


of  supreme  court.  Tyler  ▼.  Houghton,  25  Cal. 
26;  see  cases  cited  in  note  1,  supra;  and  also, 
furtlier,  post,  §§  1102-110.5. 

6.  Kabeas  corpus.  See  Kx  parte  Rowe,  7  Cal. 
17.5;  7  Cal.  IHl;  7  Cal.  184;  Kx  parte  KUis,  11 
Cal.  222;  Kx  parte  Perkins,  18  Cal.  60;  In  re 
Corrvell,  22  f'al.  178;  In  ro  Romaine,  23  Cal. 
58,");  In  re  Perkins,  2  Cal.  424;  In  re  Manchester, 
5  Cal.  237;  People  v.  Turner,  1  Cal.  143;  52 
Am.  Dec.  295;  People  v.  Turner,  1  Cal.  152: 
People  V.  Smith.  1  Cal.  3;  In  re  Ring,  28  Cal. 
247;  Ex  parte  Branigan,  19  Cal.  133;  Ex  parte 
Bird,  19  Cal.  130;  Kx  parte  Queen  of  the  Bay, 
1  Cal.  157;  Ex  parte  Gibson,  31  Cal.  619,  91 
Am.  Dec.  546;  see  further.  Pen.  Code,  §§  1473- 
1505,  inclusive. 


Appellate  jurisdiction.    See  Const.,  art.  vi,  §  4. 
Appeals. 

1.  In  general.    Post,  §§  936  et  seq. 

2.  To  supreme  court.    Post,  §§  963  ct  seq. 


§  52.  Appellate  jurisdiction.  The  supreme  court  shall  have  appellate 
jurisdiction : 

1.  In  all  cases  in  equitj^  except  such  as  arise  in  justices'  courts. 

2.  In  ail  cases  at  law  which  involve  the  title  or  possession  of  real  estate, 
or  the  legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine,  or  in 
which  the  demand,  exclusive  of  interest  or  the  value  of  the  property  in  con- 
troversy, amounts  to  three  hundred  dollars. 

8.  In  all  eases  of  forcible  entry  and  detainer,  proceedings  in  insolvency, 
actions  to  prevent  or  abate  a  nuisance,  and  in  all  such  probate  matters  as 
may  be  provided  by  law. 

4.  In  all  special  proceedings. 

5.  In  all  criminal  cases  prosecuted  hj  indictment,  or  information,  in  a 

court  of  record,  on  questions  of  law'  alone. 

the  clause  granting  to  the  supreme  court 
power  to  issue  all  writs  and  process 
necessary  to  the  exercise  of  its  appellate 
jurisdiction,  conferred  authority  to  issue 
mandamus  and  other  prerogative  writs, 
only  in  aid  of  its  appellate  jurisdiction 
(People  V.  Turner,  1  Cal.  143;  52  Am.  Dee. 
295;  Hyatt  v.  Allen,  54  Cal.  353;  Ex  parte 
Hollis,  59  Cal.  405;  White  v.  Lighthall,  1 
Cal.  347;  Cowell  v.  Buckelew,  14'"Cal.  640; 
Hicks  V.  Michael,  15  Cal.  107);  but,  under 
the  present  constitution,  the  supreme  court 
has,  as  it  had  under  the  amendment  to  the 
constitution  of  1849,  original  jurisdiction 
in  the  issuance  of  such  writs.  Plyatt  v. 
Allen,  54  Cal.  353. 

Suits  in  equity.  The  supreme  court  has 
jurisdiction  in  divorce  cases,  on  appeal; 
and  its  jurisdiction  is  as  broad  as  the  origi- 
nal jurisdiction  in  matters  of  ecjuity. 
Sharon  v.  Sharon,  67  Cal.  1S5;  7  Pac.  456, 
635;  8  Pac.  709;  Wadsworth  v.  Wads- 
worth,  81  Cal.  182;  15  Am.  St.  Rep.  38;  22 
Pac.  648. 

Cases  at  law.  This  term,  as  used  in  the 
constitution,  means  civil  cases,  as  distin- 
guished from  criminal  cases.  People  v. 
.Johnson,  30  Cal.  98;  Wheeler  v.  Donnell, 
110  Cal.  655;  43  Pac.  1. 

Title  to  and  possession  of  real  estate. 
Wliore  a  question  of  title  to  or  right  to  the 
possession  of  lands  is  necessarily  involved, 
the  supreme  court  has  appellate  jurisdic- 
tion (Holman  v.  Taylor,  31  Cal.  338);  but 
where  a  complaint  in  the  superior  court, 
after  transference  from  a  justice's  court, 
is    amended,    alleging  ownership    of   lands, 


Legislation  §  52.  1.  Enacted  March  11,  1873, 
as  §  44,  and  then  read:  "Its  appellate  jurisdic- 
tion extends:  1.  To  all  civil  actions  for  relief 
formerly  given  in  courts  of  equity;  2.  To  all  civil 
actions  in  which  the  subject  of  litigation  is  not 
capable  of  pecuniary  estimation;  3.  To  all  civil 
actions  in  which  the  subject  of  litigation  is  capa- 
ble of  pecuniary  estimation  which  involve  the 
title  or  possession  of  real  estate,  or  the  legality 
of  any  tax,  impost,  assessment,  toll,  or  municipal 
fine,  or  in  which  the  demand,  exclusive  of  inter- 
est, or  the  value  of  the  property  in  controversy, 
amounts  to  three  hundred  dollars;  4.  To  all  spe- 
cial proceedings;  5.  To  all  cases  arising  in  the 
probate  courts;  and,  6.  To  all  criminal  actions 
amounting  to  felony,   on  questions   of  law  alone." 

2.  Amended  by  Code  Amdts.  18SO,  p.  25,  and 
renumbered  §  52. 

3.  Repeal  by  Stats.  1901,  p.  119;  unconstitu- 
tional.   See  note  ante,  §  5. 

Appellate  jurisdiction.  The  essential 
criterion  of  appellate  jurisdiction  is,  that 
it  revises  proceedings  already  instituted, 
and  does  not  institute  them.  People  v.  Tur- 
ner, 1  Cal.  143;  52  Am.  Dec.  295;  and  the 
legislature  cannot  impair  the  exercise  of 
the  appellate  power  conferred  by  the  con- 
stitution. Haight  V.  Gay,  8  Cal.  297;  68 
Am.  Dec.  323;  People  v.'^Bingham,  82  Cal. 
238;  22  Pac.  1039.  Where  the  supreme 
court  has  no  jurisdiction,  it  will  not  decide 
any  legal  questions  raised  (People  v.  .John- 
son, 30  Cal.  98),  but  will  dismiss  the  pro- 
ceeding, of  its  own  motion.  Bienenfeld  v. 
Fresno  Milling  Co.,  82  Cal.  425;  22  Pac. 
1113.  Under  the  constitution  of  1849, 
which  conferred  no  original  jurisdiction, 
except  in  habeas  corpus,  it  was  held  that 


^52 


SUPREME    COURT. 


36 


and  asking  damages  for  a  sum  less  than 
three  hundred  dollars,  to  which  no  answer 
is  filed,  and  judgment  is  taken  by  default, 
the  supreme  court  has  no  jurisdiction. 
Gorton  v.  Ferdinando,  64  Cal.  11;  27  Pac. 
941;  Henigan  v.  Ervin,  110  Cal.  37;  42 
Pac.  457. 

Tax,  toll,  municipal  fine.  The  supreme 
court  lias  appellate  jurisdiction  in  all  cases 
at  law  involving  "the  legality  of  any  tax, 
impost,  assessment,  toll,  or  municipal  fine." 
Bottle  Mining  etc.  Co.  v.  Kern,  154  Cal. 
96;  97  Pac.  25.  Pilotage  allowed  by  an 
act  establishing  pilots  is  not  a  toll,  and  an 
appeal  does  not  lie,  unless  within  the  juris- 
dictional amount.  Harrison  v.  Green,  J.8 
Cal.  94;  and  see  People  v.  .Johnson,  30  Cal. 
98.  A  municipal  fine,  within  the  provision 
of  the  constitution  of  1849,  is  a  fine  im- 
posed by  the  local  laws  of  particular 
places,  such  as  towns  and  cities.  People  v. 
Johnson,  30  Cal.  98. 

Amount  in  controversy.  The  amount  in 
controversy  controls  the  jurisdiction  of 
the  sujireme  court  in  actions  to  recover 
money;  and  the  amount  sued  for,  not  the 
amount  recovered,  is  the  test  of  the  juris- 
diction. People  V.  Madden,  134  Cal.  611; 
66  Pac.  874.  The  demand  spoken  of  in  the 
constitution  is  the  demand  for  judgment, 
evidenced  by  the  prayer  of  the  complaint, 
and  the  statement  of  facts  which  can  up- 
hold the  judgment  prayed  for.  Derby  v. 
Stevens,  64  Cal.  287;  30  Pac.  82.  The  de- 
mand, exclusive  of  interest,  must  amount 
to  three  hundred  dollars  (Doyle  v.  Sea- 
wall, 12  Cal.  280;  Hopkins  v.  Cheeseman, 
28  Cal.  180;  Solomon  v.  Eeese,  34  Cal.  28; 
Maxfield  v.  Johnson,  30  Cal.  545) ;  and  the 
sum  for  which  the  judgment  is  recov- 
ered does  not  affect  the  jurisdiction  on 
appeal.  Solomon  v.  Eeese,  34  Cal.  28; 
Pennybecker  v.  McDougal,  48  Cal.  160; 
McKiernan  v.  Hesse,  51  Cal.  594;  Sanborn 
V.  Superior  Court,  60  Cal.  425.  While  the 
ad  damnum  clause  in  the  complaint  is  the 
best  test  of  jurisdiction  on  appeal  (Bailey 
V.  Sloan,  65  Cal.  387;  4  Pac.  349;  Maxfield 
V.  Johnson,  30  Cal.  545;  Solomon  v.  Eeese, 
34  Cal.  28;  Erving  v.  ISTapa  Vallev  Brew- 
ing Co.,  17  Cal.  App.  367;  119  Pac.  940); 
3'et  it  is  not  conclusive,  where  the  com- 
plaint shows  that  the  sum  is  feignedly  or 
purposely  added  for  the  sole  purpose  of 
obtaining  jurisdiction.  Lehnhardt  v.  Jen- 
nings, 119' Cal.  192;  48  Pac.  56;  51  Pac. 
195.  Where  the  amount  involved  is  less 
than  three  hundred  dollars,  the  proceeding 
will  be  dismissed  by  the  supreme  court,  of 
its  own  motion,  although  the  question  of 
jurisdiction  is  not  raised  by  counsel.  Bien- 
enfeld  v.  Fresno  Milling  Co.,  82  Cal.  425; 
22  Pac.  1113.  Th^  pleading  of  a  counter- 
claim in  excess  of  three  hundred  dollars 
does  not  confer  jurisdiction  (Maxfield  v. 
.Johnson,  30  Cal.  545);  nor  does  the  state- 
ment of  jurisdictional  facts  in  a  counter- 
claim on  an  independent  contract  (Gris- 
wold  V.  Pieratt,  110  Cal.  259;  42  Pac.  820); 


but  where  a  set-off,  less  than  three  hundred 
dollars  in  amount,  exclusive  of  interest,  is 
pleaded  as  purely  defensive  matter  in  re- 
duction or  extinguishment  of  the  claim  of 
the  complaint,  the  court  may  very  prop- 
erly entertain  jurisdiction  (Hart  v.  Coojter, 
47  Cal.  77;  Griswold  v.  Pieratt,  110  Cal.  259, 
265;  42  Pac.  820);  and  if  the  aggregate 
amount  of  the  different  counts  of  a  com- 
plaint exceeds  three  hundred  dollars,  the 
court  has  jurisdiction.  Ventura  County  v. 
Clay,  114  Cal.  242;  46  Pac.  9.  In  certio- 
rari, the  amount  in  controversy  does  not 
affect  the  jurisdiction  (Heinlen  v.  Phillips, 
88  Cal.  557;  26  Pac.  366; .  Costs  are  not 
included  in  determining  the  jurisdictional 
amount  (Maxfield  v.  Johnson,  30  Cal.  545), 
where  the  amount  demanded  in  the  com- 
plaint is  insufficient  to  confer  jurisdiction 
(Henigan  v.  Ervin,  110  Cal.  37;  42  Pac. 
457) ;  neither  is  a  percentage,  added  by  au- 
thoritj'  of  statute.  Zabriskie  v.  Torrey,  20 
Cal.  173. 

Insolvency  proceedings.  An  appeal  also 
lies  in  insolvency  proceedings,  to  review 
the  judgment  (Fisk  v.  His  Creditors,  12 
Cal.  281;  and  see  People  v.  Shepard,  28 
Cal.  115;  People  v.  Eosborough,  29  Cal. 
415);  which  is  not  now  a  special  proceed- 
ing (People  V.  Eosborough,  29  Cal.  415; 
Fisk  V.  His  Creditors,  12  Cai.  281);  but 
neither  certiorari  (People  v.  Shepard,  28 
Cal.  115)  nor  error  lies  in  such  cases. 
People  V.  Shepard,  28  Cal.  115;  Kohlman 
V.  Wright,  6  Cal.  230;  Fisk  v.  His  Cred- 
itors, 12  Cal.  2S1. 

Probate  matters.  In  probate  matters 
an  appeal  lies  from  an  order  directing  pay- 
ment of  a  debt  or  claim,  regardless  of  the 
amount  thereof.  Ex  parte  Orford,  102  Cal. 
656,  36  Pac.  928. 

Special  proceedings.  An  appeal  lies  to 
the  supreme  court  from  a  judgment  in  cer- 
tiorari (Winter  v.  Fitzpatriek,  35  Cal.  269; 
Morley  v.  Elkins,  37  Cal.  454);  in  man- 
damus (Palache  v.  Hunt,  64  Cal.  473;  2 
Pac.  245)  to  compel  a  trial  judge  to  settle 
a  statement  on  motion  for  a  new  trial 
(People  v.  Eosborough,  29  Cal.  415;  Wood 
v.  Strother,  76  Cal.  545;  9  Am.  St.  Eep. 
249;  18  Pac.  766);  in  prohibition  (Santa 
Cruz  Gap  etc.  Co.  v.  Board  of  Supervisors, 
62  Cal.  40) ;  in  an  action  to  determine, 
upon  reference  by  the  surveyor-general, 
the  rights  of  the  respective  parties  to  pur- 
chase school-lands  from  the  state  (Eisdon 
V.  Prewett,  8  Cal.  App.  434;  97  Pac.  73); 
and  in  an  action  brought,  under  the  Bank 
Commissioners'  Act,  to  force  a  bank  into 
liquidation.  People  v.  Bank  of  San  Luis 
Obispo,  152  Cal.  261;  92  Pac.  481;  but 
there  is  no  appellate  jurisdiction  in  the 
supreme  court  in  contempt  cases  (In  re 
Vance,  88  Cal.  262;  26  Pac.  101;  Tyler  v. 
Connolly,  65  Cal.  28;  2  Pac.  414;  Sanchez 
V.  Newman,  70  Cal.  210;  11  Pac.  645),  al- 
though the  amount  of  the  fine  is  within  its 
jurisdiction  (Tyler  v.  Connolly,  65  Cal.  28^ 
2  Pac.  414;  Euggles  v.  Superior  Court,  103 


37 


APPELLATE    JURISDICTION. 


§o2 


Cal.  12S;  37  Pae.  211),  and  the  proceeding 
is  classed  as  criminal.  Tyler  v.  Connolly, 
65  Cal.  2S;  2  Pac.  414. 

Criminal  cases.  Under  the  constitution 
of  1849,  the  supreme  court  had  no  appel- 
late jurisdiction  of  misdemeanors,  or 
crimes  less  than  a  felony,  and  none  could 
be  conferred  by  the  legislature  in  sndi 
cases  (People  v.  Applej^ate,  5  Cal.  211."); 
People  V.  Shear,  7  Cal.  139;  People  v.  Vick, 
7  Cal.  1(17);  People  v.  Fowler,  9  Cal.  85; 
Peoj.Ie  V.  Cornell,  16  Cal.  1S7;  People  v. 
"War,  20  Cal.  117;  People  v.  Burney,  29  Cal. 
459;  People  v.  Johnson,  30  Cal.  98;  Peoide 
V.  Apsar,  35  Cal.  389),  but,  under  the  pres- 
ent constitution  an  appeal  lies  to  the  su- 
preme court  in  cases  of  misdemeanor  pros- 
ecuted by  indictment  or  information 
(People  V.  Pingree,  61  Cal.  141;  People  v. 
Jordan,  65  Cal.  644;  4  Pac.  683),  and  from 
a  .iudgment  rendered  in  a  prosecution  for 
misdemeanor  in  oflice.  People  v.  Kallo(di, 
GO  Cal.  113.  The  district  court  of  ap]>eal 
has  jurisdiction  of  an  appeal  by  the  i)eo- 
plc,  from  an  order  made  Ijefore  judgment, 
setting  aside  an  information  charging  the 
crime  of  murder.  People  v.  White,  161  Cal. 
310;  119  Pac.  79. 

Appeal  to  wrong  court.  An  appeal 
wrongly  taken  to  the  supreme  court  will 
be  ordered  transferred  to  a  district  court 
of  ap]ieal  for  decision  (Bottle  Mining  etc. 
Co.  V.  Kern,  154  Cal.  96;  97  Pac.  25;  Peo- 
ple V.  White,  161  Cal.  310;  119  Pac.  79); 
and  an  appeal  improperly  taken  to  a  dis- 
trict court  of  appeal  must  be  transferred 
to  the  supreme  court.  Erving  v.  Napa 
Valley  Brewing  Co.,  17  Cal.  App.  367;  119 
Pac.  940;  Asiatic  Club  v.  Biggv,  160  Cal. 
713;  117  Pac.  912;  Eisdon  v.  Prewett,  8 
Cal.  434;  97  Pac.  73.  The  jurisdiction  of 
a  district  court  of  appeal  is  limited  to 
cases  wdiere  the  value  of  the  property  in 
controversy  is  less  than  two  thousand  and 
more  than  three  hundred  dollars.  Erving 
V.  Napa  Valley  Brew^ing  Co.,  17  Cal.  App. 
367;  119  Pac.  940;  Bottle  Mining  etc.  Co. 
V.  Kern,  154  Cal.  96;  97  Pac.  25. 

CODE  COMMISSIONERS'  NOTE.  1.  Construc- 
tion of  the  section  generally.  This  section  is 
intended  to  clearly  define  the  appellate  jurisdic- 
tion of  the  supreme  court.  Section  4  of  article 
vi  of  the  constitution,  so  far  as  it  related  to  the 
appellate  power,  as  it  stood  prior  to  amendments 
of  1862,  was  as  follows:  "The  supreme  court 
shall  have  appellate  jurisdiction  in  all  cases 
where  the  matter  in  dispute  exceeds  two  hundred 
dollars,  when  the  lejralily  of  any  tax  or  impost, 
or  municipal  fine,  is  in  question,  and  in  all 
criminal  cases  amounting  to  felony,  on  questions 
of  law  alone.  .  .  ."  And,  as  amended  in  1862, 
is  as  follows:  "The  supreme  court  shall  have  ap- 
pellate jurisdiction  in  all  cases  in  equity;  also, 
in  all  cases  at  law  which  involve  the  title  or 
possession  of  real  estate,  or  the  leffality  of  any 
tax,  impost,  assessment,  toll,  or  municipal  fine, 
or  in  which  the  demand,  exclusive  of  interest,  or 
the  value  of  the  property  in  controversy,  amounts 
to  three  hundred  dollars;  also,  in  all  cases  aris- 
ing in  the  probate  courts:  and  also  in  all  crim- 
inal cases  amounting  to  felony,  on  questions  of 
law  alone.  .  .  ."  To  have  simply  followed  the 
terms  of  the  constitution  in  defining  the  juris- 
diction would  have  conveyed  to  one  not  familiar 
with  the  construction  placed  upon  those  terms  by 


our  court  of  last  r?8ort,  but  «  faint  idea  of  the 
extent  or  limit  of  tliat  jurLsdiclion.  In  Conaiit 
v.  Conant,  10  Cal.  252,  70  Am.  iJec.  717,  which 
was  an  action  for  a  divorce  from  tlie  bonds  of 
nialrimony  by  the  wife  against  her  husband,  an 
objection  was  taken  to  the  hearing  of  the  appeal, 
based  upon  the  ground  of  want  of  a|)pellate  juris- 
diction, because  no  (|uesti(in  of  pro|)(Tty  was  in- 
volved. Said  Field,  J.,  dilivcring  the  opinion  of 
the  court    [quoting  at   length). 

In  Knowles  v.  Yates,  31  Cal.  84,  which  was  a 
proceeding  under  the  act  of  18.50,  providing  f.ir 
contesting  eleclions,  it  was  contended  that,  under 
the  amendment  of  1862,  the  appellate  jurisdic- 
tion of  the  court  was  confined  to  the  class  of 
cases  enumerated  in  article  iv,   aa  amended,   viz.: 

1.  To  cases  in  equity; 

2.  To  the  cases  at  law  involving  questions  of 
property  or  the  legality  of  a  tax,  etc.: 

3.  To  cases  arising  in  the  probate  courts; 

4.  To  criminal  cases; 

-;-And  thai'  therefore  there  was  no  appellate  ju- 
risdiction over  special  proceedings,  or  any  class 
of  cases  not  included  within  the  constitutional 
enumeration.  After  argument  and  reargument, 
the  court,  Currey,  C.  J.,  delivering  the  opinion, 
sustained  the  jurisdiction.  Said  the  learned  jus- 
tice, speaking  for  the  court  [quoting  at  length]. 
In  constructing  this  section  the  commission  kept 
steadily  in  view  these  authoritative  expositions  of 
the  constitution,  and  have  endeavored  to  engraft 
their  results  upon  the  text  of  the  amendments  of 
1862.  They  do  not  use  the  phrases,  "cases  in 
equity,"  "cases  at  law,"  and  it  is  a  little  singular, 
to  say  the  least,  that  those  phrases  were  in- 
serted in  the  constitution  more  than  ten  years 
after  the  adoption  of  the  Tractice  Act,  the  first 
section  of  which  declared  that  there  should  be 
one  form  of  civil  actions,  obliterating  at  once  the 
distinctions  between  actions  at  law  and  suits  in 
equity,  abolishing  the  forms  of  all  such  actions 
and  placing  in  their  stead  the  proceedings  under 
the  Practice  Act.  The  continued  use  of  those 
phrases,  and  of  the  terms  "ejectment," '  "tres- 
pass," "replevin,"  etc.,  when  applied  to  proceed- 
ings in  our  courts,  leads  but  to  confusion,  and 
has  retarded  the  enforcement  of  the  Practice  Act 
in  the  spirit  of  its  conception.  An  enumeration 
of  the  particular  orders,  etc.,  which  are  appli- 
cable per  se,  is  omitted  in  this  part  of  the  code; 
they  will  be  found  in  Part  II,  under  the  title 
"Appeals  in   Civil   Actions." 

2.  Divorce  decree.  The  supreme  court  possesses 
appellate  jurisdiction  from  a  decree  rendered  in 
a  suit  for  divorce.  Conant  v.  Conant,  10  Cal. 
249;    70  Am.  Dec.  717. 

3.  Eeal  property.  Cases  involving  title  to  or 
possession  of  real  property.  Doherty  v.  Thayer, 
31   Cal.   140;   see  also   Paul  v.   Silver,   16   Cal. '73. 

4.  Distinction  between  civil  and  criminal  cases 
involving  municipal  fines,  etc.  "Cases  at  law  or 
civil  actions  involving  legality  of  tax.  imjxjst,  as- 
sessment, toll,  or  municipal  fine."  defit'cd,  and 
held  to  refer  to  civil  cases  as  distinguished  from 
criminal  cases.  The  supreme  court  has  not  juris- 
diction of  a  criminal  case  whenever  it  may  be 
claimed  the  validity  of  a  tax,  etc.,  is  involved. 
People   V.   Johnson,    30   Cal.    98. 

5.  Money  demands.  Value  of  property  in  con- 
troversy. ]5ofore  the  amendments  to  the  consti- 
tution (which  went  into  effect  .January  1,  1863), 
the  appellate  jurisdiction  of  the  supreme  court 
over  money  demands  extends  only  to  cases  where 
the  amount  in  dispute  exceeded  two  hundred  dol- 
lars. Luther  v.  Ship  Apollo,  1  Cal.  15;  Simmons 
V.  Brainard,  14  Cal.  278;  Crandall  v.  Blen.  15 
Cal.  406;  People  v.  Carman,  IS  Cal.  693;  Zabris- 
kie  V.  Torrey,  20  Cal.  173;  Malson  v.  Vaughn.  23 
Cal.  61;  Skillman  v.  Lachman,  23  Cal.  199;  83 
Am.  Dec.  96;  Meeker  v.  Harris,  23  Cal.  285; 
Bolton  V.  Landers,  27  Cal.  106.  And  it  made  no 
difference,  although  the  enforcement  of  a  mechan- 
ic's lien  or  foreclosure  of  a  mortgage  by  which 
the  demand  was  secured  was  asked  for  in  the 
same  case.  Poland  v.  Carrigan,  20  Cal.  174. 
Since  the  adoption  of  the  amendments  (.hinuary 
1,  1863),  the  appellate  jurisdiction  of  the  su- 
preme court  has  extended  over  money  demands, 
etc.,  only  where  the  amount  in  controversy  was 
for  the  sum  of  three  hundred  dollars  or  more. 
Hopkins  v.  Cheeseman,  28  Cal.  180;   Maxfield  v. 


§52 


SUPREME   COURT. 


38 


Johnson,  30  Cal.  545;   Solomon  v.  Reese,  34  Cal. 
28. 

6.  Definition  and  explanation  of  phrases, 
"amount  in  controversy,"  "value  of  property  in 
controversy,"  etc.  In  Gordon  v.  Ross,  2  Cal.  156, 
and  Doyle  v.  Seawall,  12  Cal.  280,  it  was  held 
that  costs  might  be  added  to  the  judgment  of  the 
court  below,  for  the  purpose  of  conferring  appel- 
late jurisdiction  on  the  supreme  court;  and  if, 
when  added,  the  total  amount  exceeded  two  hun- 
dred (now  three  hundred)  dollars,  the  supreme 
court  had  jurisdiction  on  appeal;  but  these  cases 
were  overruled  in  Dumphy  v.  Guindon,  13  Cal. 
28,  and  it  was  held  that  costs  were  merely  inci- 
dental to  the  suit,  and  formed  no  part  of  it  for 
the  purpose  of  an  appeal.  See,  too,  Votan  v. 
Reese,  20  Cal.  89;  Maxfield  v.  Johnson,  30  Cal. 
545;  Bolton  v.  Landers,  27  Cal.  106;  Zabriskie  v. 
Torrev,  20  Cal.  173;  see  also  Conant  v.  Conant, 
10  Cal.  250;  70  Am.  Dee.  717.  It  was  held, 
also,  that  where  the  plaintiff  is  appellant,  and  the 
judgment  is  for  the  defendant,  the  jurisdiction  of 
the  supreme  court  is  determined  by  the  amount 
claimed  by  the  comnlaint,  for  that  is  the  amount 
in  dispute  in  such  cases.  Gillespie  v.  Benson,  18 
Cal.  410;  Votan  v.  Reese,  20  Cal.  89.  And  in 
the  last-cited  case  it  was  said  that  if  the  appeal 
is  by  the  plaintiff,  from  a  judgment  in  his  favor, 
then  the  amount  in  dispute  is  the  difference  be- 
tween the  amount  of  the  judgment  and  the  sum 
claimed  by  the  complaint;  but  this  part  of  that 
decision  was  overruled  in  Solomon  v.  Reese,  34 
Cal.  33.  In  Skillman  v.  Lachman,  23  Cal.  201, 
83  Am.  Dec.  96,  after  quoting  from  and  comment- 
ing on  Gillespie  v.  Benson,  and  Votan  v.  Reese, 
the  court  held:  "So,  upon  the  same  principle,  if 
the  appeal  is  taken  by  the  defendant  from  a  judg- 
ment rendered  against  him  for  a  sum  exceeding 
two  hundred  dollars,  exclusive  of  costs  and  per- 
centage, the  supreme  court  had  [prior  to  1863, 
when  amendments  to  article  vi  of  the  state  con- 
stitution went  into  operation]  jurisdiction  of  the 
case,  because  the  amount  of  the  judgment  is  the 
matter'  in  dispute  on  appeal.  So,  too,  if  the  ap- 
peal is  taken  by  the  defendant  from  a  judgment 
in  his  favor  when  he  has  set  up  a  counterclaim, 
if  that  judgment  is  for  a  sum  more  than  two 
[now,  since  1863,  three]  hundred  dollars  less 
than  he  claims  in  his  answer,  this  court  has  juris- 
diction. The  interest  due  on  the  demand  sued 
for  forms  a  part  of  the  amount  to  be  included  in 
the  estimate  of  the  'amount  in  dispute.'  "  But 
Justice  Sanderson,  in  reviewing  these  cases,  says: 
"In  actions  for  the  recovery  of  money,  this  court 
has  jurisdiction,  if  'the  demand,  exclusive  of  in- 
terest, amounts  to  three  nundred  dollars.'  Const., 
art.  vi,  § -^ .  The  demand,  exclusive  of  interest, 
in  this  case  amounts  to  five  hundred  and  fifty  dol- 
lars. The  language  of  the  constitution  in  respect 
to  the  jurisdiction  of  this  court  is  the  same  asit 
is  in  respect  to  the  jurisdiction  of  the  district 
court,  and  there  can  be,  therefore,  no  difference 
in  the  rules  by  which  questions  as  to  jurisdiction 
of  the  subject-matter  are  to  be  determined  in 
the  two  courts.  For  the  purpose  of  ascertaining 
whether  the  district  court  has  jurisdiction,  we 
look  to  the  complaint,  and  in  this  class  of  cases, 
if  the  sum  sued  for  amounts  to  three  hundred 
dollars,  exclusive  of  interest,  that  court  has  juris- 
diction, and  by  parity  of  reason  this  court  has 
jurisdiction  on  appeal.  The  amount  sued  for.  ex- 
clusive of  interest,  is  the  test  of  the  jurisdiction 
of  this  court,  regardless  of  the  judgment  of  the 
latter  court.  We  dissent  entirely  from  the  dic- 
tum of  the  court  in  the  case  of  Votan  v.  Reese. 
20  Cal.  90,  to  the  effect  that  where  the  plaintiff 
recovers  in  the  district  court  less  than  he  sues 
for,  the  test  of  the  jurisdiction  of  this  court,  in 
the  event  the  plaintiff  appeals,  is  the  difference 
between  the  judgment  of  the  district  court  and 
the  demand  made  in  the  complaint,  exclusive  of 
interest.  All  civil  cases  which  the  district  courts 
have  jurisdiction  to  try,  this  court  has  jurisdic- 
tion to  review,  no  matter  what  the  judgment  of 
the  district  court  may  have  been.  If  the  plain- 
tiff sues  to  recover  a  demand  for  five  hundred 
dollars,  and  the  district  court  gives  him  a  judg- 
ment for  three  hundred  only,  his  demand  does  not 
thereby  become  converted  into  a  demand  for  two 
hundred  dollars  for  the  purpose  of  an  appeal, 
should  he  be  dissatisfied  with  the  judgment  and 
desire   to   bring   his   case   to   this   court.      On   the 


contrary,  in  the  sense  of  the  constitution  his  de- 
mand in  this  court  is  precisely  the  same  that  it 
was  in  the  court  below,  and  is  to  be  ascertained 
by  looking  to  the  complaint,  and  not  by  deduct- 
ing the  judgment  of  the  district  court  from  the 
demand  alleged  in  the  complaint.  In  other  words, 
the  ad  damnum  clause  in  the  complaint  is  the 
test  of  jurisdiction  in  the  court  below."  Maxfield 
V.  Johnson,  30  Cal.  546;  Solomou  v.  Reese,  34 
Cal.   33. 

7.  Certiorari.  Appeal  from  writ  of  certiorari. 
The  supreme  court  has  jurisdiction  over  appeals 
in  cases  of  certiorari.  Morley  v.  Elkius,  37  Cal. 
454;  see,  however,  People  v.  Carman,  18  Cal. 
693. 

8.  Election  cases.  The  supreme  court  has  ap- 
pellate jurisdiction  over  the  decisions  of  county 
courts  iu  election  cases.  Knowles  v.  Yates,  31  Cal. 
82;   Dickinson  v.  Van  Horn,  9  Cal.  207. 

9.  Insolvency  proceedings.  It  was  decided  in 
Kohlman  v.  Wright,  6  Cal.  231,  and  in  Fisk  v. 
His  Creditors,  12  Cal.  281,  not  only  that  the  su- 
preme court  had  jurisdiction  in  error  in  insol- 
vency cases,  but  that  such  errors  might  be  brought 
up  by  appeal.  (This  was  prior  to  the  adoption 
of  the  amendments  to  Const.,  art.  vi.)  The  ju- 
risdiction in  ejror  has  not  been  withdrawn  by  the 
constitutional  amendments.  Section  939  (§336) 
of  the  Practice  Act  gives  an  appeal  from  final 
judgment  in  special  proceedings.  People  v.  Shep- 
ard,   28   Cal.   117. 

10.  Criminal  cases.  The  supreme  court  has  no 
appellate  jurisdiction  in  criminal  cases  of  a  lesser 
grade  than  felony  (not  even  on  a  writ  of  error, 
certiorari,  or  on  appeal).  People  v.  Shear,  7  Cal. 
139;  People  v.  Vick,  7  Cal.  165;  People  v.  Apple- 
gate,  5  Cal.  295;  People  v.  Fowler,  9  Cal.  86; 
People  V.  Cornell,  16  Cal.  187;  People  v.  War,  20 
Cal.  117;  People  v.  Burney,  29  Cal.  459;  People 
V.  Johnson,  30  Cal.  98.  And  the  judgment  of 
conviction  of  the  lower  court,  and  not  the  indict- 
ment, determines  the  character  of  this  class  of 
cases  for  the  purposes  of  appeal.  If  the  indict- 
ment be  for  a  felony,  but  the  judgment  is  for 
only  a  misdemeanor,  the  supreme  court  has  no 
appellate  jurisdiction.  People  v.  Apgar,  35  Cal. 
391,  and  cases  cited.  A  distinction  is  made  where 
there  is  no  evidence  of  a  material  fact,  and  where 
there  is  some  evidence,  but  not  enough  to  sustain 
a  verdict.  The  supreme  court  has  jurisdiction 
on  appeal  in  criminal  cases  over  the  question, 
whether  the  verdict  is  contrary  to  the  evidence  in 
one  case,  as  well  as  in  the  other.  Whether  a  de- 
fendant in  a  criminal  action  is  entitled  to  a  new 
trial  upon  the  ground  that  the  verdict  is  contrary 
to  the  evidence,  is  a  question  of  law,  and  not  a 
question  of  fact,  within  the  meaning  of  article 
vi,  §  4,  of  the  constitution.  People  v.  Jones,  31 
Cal.    565.      See   the   several   opinions   in   the   case. 

11.  Generally,  judgments,  whether  by  default  or 
otherwise,  subject  to  appeal.  It  was  held  that, 
as  to  the  right  of  appeal,  there  is  no  distinction 
between  judgment  by  default  and  judtrment  after 
issue  joined  and  a  trial.  There  is  no  force  in  the 
suggestion  that  the  sunreme  court  exercises  origi- 
nal interest  of  appellate  jurisdiction,  if  it  re- 
views errors  on  appeal  from  judgments  by  default. 
Although  in  such  a  case,  as  a  matter  of  fact,  the 
court  below  does  not  pass  upon  the  sufficiency  of 
the  complaint,  yet  as  a  matter  of  law  it  does. 
Though  entered  by  the  clerk  without  the  direc- 
tion of  the  judge,  it  is  as  much  the  judgment  of 
the  court  as  if  it  had  been  announced  from  the 
bench,  and  the  defendants  are  as  much  entitled 
to  the  opinion  of  the  supreme  court  upon  the 
sufficiency  of  the  complaint  as  they  would  have 
been  had  they  appeared  and  demurred.  Ques- 
tions of  jurisdiction  and  of  the  sufficiency  of  the 
complaint  upon  the  point  whether  the  facts  stated 
constituted  a  cause  of  action  are  never  waived  in 
any  case,  and  may  be  made  for  the  first  time  in 
the  supreme  court.  Hallock  v.  Jaudin,  34  Cal. 
173. 

12.  Order  refusing  transfer  from  district  court 
to  United  States  circuit  court  not  appealable.  It 
was  held  that  from  an  order  refusing  to  transfer 
an  action  from  a  district  court  of  this  state  to 
the  circuit  court  of  the  United  States  no  appeal 
lies.  The  rpniedv  is  bv  mandamus  in  such  cases. 
Hopper  v.  Kalkman,  17  Cal.  517;  Brookg  v.  Cal- 
derwood,   19  Cal.  124. 


39 


POWERS  IN  APPEALED   CASES. 


§53 


13.  Law  of  the  case.  When  a  decision  is  ren- 
dered in  a  particular  case  by  the  supreme  court, 
Buoh  decision,  whether  right  or  wrong,  becomes 
the  law  of  the  case,  and  is  not  subject  to  revision 
on  a  second  appeal.  It  is  conclusive  of  the  rights 
of  the  parties.  Davidson  v.  Dallas,  1.5  Cal.  75 
(see  cases  cited  therein)  ;  Dewey  v.  Gray,  2  Cal. 
376;  Clary  v.  Hoasrland,  .5  Cal.  470;  (i  Cal.  685; 
Gunter  v.  Laflfan,  7  Cal.  592;  Washington  Bridse 
Co.  V.  Stewart,  3  How.  (U.  S.)  413,  424;  11  L. 
Kd.   65S:    Leese  v.   Clark,   20   Cal.   387. 

14.  When  remittitur  has  issued,  jurisdiction  of 
case  is  lost.  Whon  a  remittitur  has  issued,  and 
the   court   has   adjourned   for   the   term   at   which 


judgment  was  given,  the  supreme  court  has  then 
lost  all  further  jurisdiction  over  the  case.  David- 
son V.  Dallas,  15  C.-^l.  76.  The  supreme  court  has 
no  apjjellate  jurisdiction  over  its  own  judgments. 
Leese  v.  Clark,  20  Cal.  387;  but  see  note  to  §  45, 
[§  53,]    post. 

15.  Legislature  can  regulate  mode  of  appeal. 
While  the  legislature  cannot  substantially  impair 
the  right  of  appeal,  it  is  competent  to  regulate 
the  mere  mode  in  which  this  right  must  be  exer- 
cised. Ilaight  V.  Gay,  8  Cal.  297;  63  Am.  Dec. 
323.  And  for  fuller  information  on  the  subject 
of  jurisdiction,  see  notes  to  §§  33,  43,  ante,  and 
84,   85,   97,   104,   114,   post. 


§  53.  Powers  in  appealed  cases.  The  supreme  court  may  affirm,  reverse, 
or  modify  any  judLi;ment  or  order  appealed  from,  and  may  direct  the  proper 
judgment  or  order  to  be  entered,  or  direct  a  new  trial  or  further  proceedings 
to  be  had.  The  decision  of  the  court  shall  be  given  in  writing,  and  in  giving 
its  decision,  if  a  new  trial  be  granted,  the  court  shall  pass  upon  and  deter- 
mine all  the  questions  of  law  involved  in  the  case,  presented  Upon  such  ap- 
peal, and  necessary  to  the  final  determination  of  the  ease.  Its  judgment  in 
appealed  cases  shall  be  remitted  to  the  court  from  which  the  appeal  was 
taken. 

Where  the  appellate  court  directs  the  kind 
of  judgment  to  be  rendered,  instead  of  di- 
recting a  modification  of  the  judgment, 
there  is,  in  effect,  a  reversal.  Argenti  v. 
San  Francisco,  30  Cal.  45S. 

Modification  of  judgment.  The  appellate 
court  may  render  such  judgment  as  the 
court  below  should  have  rendered  (Gahan 
V.  Neville,  2  Cal.  81;  Grayson  v.  Guild,  4 
Cal.  122;  Anderson  v.  Parker,  6  Cal.  197; 
Crosby  v.  McDermitt,  7  Cal.  146;  Wallace 
V.  Eldredge,  27  Cal.  495;  People  v.  Sierra 
Buttes  Quartz  Mining  Co.,  39  Cal.  oil; 
Foucault  V.  Pinet,  43  Cal.  136;  Noonan  v. 
Hood,  49  Cal.  293);  and  may  add  to  the 
judgment  of  reversal,  directions  that  the 
cause  be  tried  de  novo,  or  may  direct  that 
partial  issue  be  tried,  leaving  all  other 
facts  already  found  by  the  court  as  facts 
in  the  case,  or  it  may  enter  or  direct  that 
the  lower  court  enter  judgment  upon  cer- 
tain specified  facts  (Argenti  v.  Sau  Fran- 
cisco, 30  Cal.  458;  and  see  Marziou  v. 
Pioche,  10  Cal.  545;  Soule  v.  Dawes,  14 
Cal.  247;  Soule  v.  Eitter,  20  Cal.  522; 
Myers  v.  McDonald,  68  Cal.  162;  8  Pac. 
809) ;  or  it  may  modify  an  erroneous  judg- 
ment to  conform  to  the  facts,  and,  as 
modified,  affirm  it  (Swan  v.  Talbot,  152 
Cal.  142;  17  L.  E.  A.  (X.  S.)  1066;  94  Pac. 
238;  American-Hawaiian  etc.  Co.  v.  Butler, 
17  Cal.  App.  764;  121  Pac.  709;  Welch  v. 
Ware.  161  Cal.  641;  119  Pac.  1080;  Sterling 
V.  Gregory,  149  Cal.  117;  85  Pac.  305;  Peo- 
ple v.  Kerr,  15  .Cal.  App.  273;  114  Pac. 
584;  Coghlan  v.  Quartararo,  15  Cal.  App. 
662;  115  Pac.  664;  Mannix  v.  Trvon,  152 
Cal.  31;  91  Pac.  983;  Petitpierre"^  v.  Ma- 
guire,  155  Cal.  242;  100  Pac.  690;  Shep- 
pard  V.  Sheppard,  161  Cal.  348;  119  Pac. 
492),  without  directing  an  entire  reversal 
of  the  judgment.  Eedwood  City  Salt  Co. 
V.  Whitney,  153  Cal.  421;  95  Pac.  885; 
Petitpiorre  v.  Maguire,  155  Cal.  242;  100, 
Pac.   690;    Sheppard   v.   Sheppard,   15   Cal, 


Errors  and  defects  are  to  be  disregarded.  Post, 
§  4  75. 

Records,  though  not  conclusive,  are  presumed 
correctly  to  determine  the  rights  of  the  parties. 
Post,  §  1963,  subd.  17. 

Costs  on  appeal.    Post,  §  1027. 

Remittitur.    Post,  §  958. 

Legislation  §  53.  1.  Enacted  March  11,  1872, 
as  §45,  and  then  read:  "The  court  may  reverse, 
affirm,  or  modify  any  order  or  judgment  appealed 
from,  and  may  direct  the  proper  judgment  or 
order  to  be  entered,  or  direct  a  new  trial  or  fur- 
ther proceedings  to  be  had.  Its  judgment  must 
be  remitted  to  the  court  from  which  the  appeal 
was   taken." 

2.  Amended  by  Code  Amdts.  1880,  p.  25,  and 
renumbered  §  53. 

3.  Repeal  by  Stats.  1901,  p.  119;  unconstitu- 
tional.   See  note  ante,  §  5. 

Decision  as  to  moot  questions.  The  court 
will  not  decide  question  not  directly  in- 
volved in  the  case,  and  not  necessary  to 
the  judgment  (West  v.  Smith,  5  Cal.  96), 
nor  indulge  in  the  discussion  of  abstract 
questions  in  a  case  over  which  it  has  no 
jurisdiction  (People  v.  Johnson,  30  Cal. 
98),  nor  decide  moot  cases  (People  v. 
Pratt,  30  Cal.  223),  nor  moot  questions  of 
law  raised  by  counsel.  State  v.  McGlynn, 
20  Cal.  233;  81  Am.  Dec.  118;  Phelan  v. 
Supervisors  of  San  Francisco,  9  Cal.  15. 

Affirmance  of  judgment.  The  dismissal 
of  an  appeal  is,  in  effect,  an  affirmance  of 
the  judgment.  Eowlaud  v.  Kreyenhagen, 
24  Cal.  52. 

Reversal  of  judgment.  The  effect  of  a 
reversal  of  judgment  is  to  restore  the 
rights  of  the  parties  to  the  same  condition 
in  which  they  were  before  the  rendition  of 
the  judgment  reversed.  .Argenti  v.  San 
Francisco,  30  Cal.  458;  Falkner  v.  Hendv, 
107  Cal.  49;  20  Pac.  21,  386;  Eyan  v.  Tom- 
linson,  39  Cal.  639;  Phelan  v.  Supervisors 
of  San  Francisco,  9  Cal.  15;  Stearns  v. 
Aguirre,  7  Cal.  443.  It  does  not  necessarily 
bar  further  proceedings  in  the  action.  Id.; 
Sharp  V.  Miller,  66  Cal.  98;  4  Pac.  1065; 
Myers  v.  McDonald,  68  Cal.  162;  8  Pac.  809, 


§53 


SUPREME    COURT. 


40 


App.  619;  115  Pac.  751.  Modification  of 
the  judgment  appealed  from  will  be  or- 
dered, where  justice  can  be  done,  without 
remanding  for  a  new  trial.  Atherton  v. 
Fowler,  46  Cal.  320;  Daves  v.  Southern 
Pacific  Co.,  98  Cal.  19;  35  Am,  St.  Eep. 
133;  32  Pac.  708.  Judgment  may  be 
modified  by  consent  (Pearsall  v.  Henry, 
153  Cal.  314;  95  Pac.  159),  and  a  decree, 
erroneous  in  form,  may,  without  a  re- 
versal, be  modified  to  conform  to  the  find- 
ings (Barrett-Hicks  Co.  v.  Glas,  14  Cal. 
App.  289,  303;  111  Pac.  760);  as,  where  the 
appellant  Avas  entitled  to  recover  costs  on 
the  trial,  it  may  be  modified  as  to  such 
costs,  without  reversal.  Petitpierre  v.  Ma- 
guire,  155  Cal.  242;  100  Pac.  690.  A  modi- 
fication of  a  fraudulent  judgment  does  not 
operate  to  set  it  aside.  Clark  v.  Dunnam, 
46  Cal.  204. 

When  new  trial  results.  Unless  there  is 
something  in  the  opinion  or  order  of  the 
court  to  the  contrary,  an  order  reversing 
and  refnanding  simplv  accords  a  new  trial 
(Myers  v.  McDonakf,  68  Cal.  162;  8  Pac. 
809);  but  where  a  new  trial  is  not  author- 
ized by  the  language  of  the  judgment,  any 
judgment  rendered  upon  a  new  trial  is  null 
and  void.  Argenti  v.  San  Francisco,  30 
Cal.  458.  The  effect  of  the  order,  "re- 
versed and  remanded,"  is,  simply,  to  set 
aside  the  judgment  and  to  grant  a  new 
trial  (Kyan  v.  Tomlinson,  39  Cal.  639). 
A  case  may  be  remanded  for  a  new  trial 
upon  a  particular  issue  (Mayberry  v. 
Whittier,  144  Cal.  322;  78  Pac.  16);  but 
where  the  new  trial  is  granted  only  on  a 
single  issue,  the  former  determination  of 
the  trial  court  upon  the  remaining  issues 
is  allowed  to  stand.  Duff  v.  Duff,  101  Cal. 
1;  35  Pac.  437.  Thus,  a  judgment  against 
two,  where  only  one  appeals,  may  be  re- 
versed as  to  the  one  who  appeals,  and 
aflBrmed  as  to  the  other  (Minturn  v.  Bay- 
lis,  33  Cal.  129);  or  it  may  be  affirmed 
upon  remission  of  damages.  Doll  v.  Feller, 
16  Cal.  432;  De  Costa  v.  Massachusetts 
Flat  Water  etc.  Co.,  17  Cal.  613;  Muller  v. 
Boggs,  25  Cal.  175;  Lamping  v.  Hyatt,  27 
Cal.  99;  Carpentier  v.  Gardiner,  "29  Cal. 
160;  Atherton  v.  Fowler,  46  Cal.  320.  A 
new  trial  will  be  awarded,  and  not  a  modi- 
fication, where  the  wrong  construction  is 
placed  upon  a  written  instrument  in  evi- 
dence. Hicks  V.  Coleman,  25  Cal.  122;  85 
Am.  Dec.  103.  Where  the  construction 
placed  by  the  lower  court  upon  its  findings 
is  doubtful,  a  new  trial  should  be  ordered. 
Estate  of  Richardson,  94  Cal.  63;  15  L.  R. 
A.  635;  29  Pac.  484.  The  appellate  court 
will  direct  a  new  trial,  where  the  findings 
require  judgment  for  a  party  other  than 
the  one  for  which  judgment  was  had, 
where  the  findings  were  baseil  on  evidence 
erroneously  admitted  or  excluded;  other- 
wise it  will  modifv  the  judgment.  Sun  Ins. 
Co.  V.  White,  118  Cal.  468;  50  Pac.  546. 
A  party  will  not  be  entitled  to  a  new  trial, 
however,  where  the  judgment  is  for  such 


a  small  amount  that  the  court  may  apply 
the  maxim,  De  minimis  non  curat  lex. 
Willson  V.  McEvoy,  52  Cal.  169. 

Direct  proper  judgment.  The  supreme 
court,  on  reversal  of  the  judgment,  has 
power  to  order  judgment  in  favor  of  the 
other  party  (Argenti  v.  San  Francisco,  30 
Cal.  458;  Pollard  v.  Putnam,  54  Cal.  630; 
Schroeder  v.  Schweizer  Llovd  etc.  Gesell- 
sehaft,  60  Cal.  467^  44  Am.  Rep.  61);  or  it 
may  direct  affirmance  upon  the  remission 
of  excessive  damages,  and  if  the  excess  is 
not  remitted,  order  the  cause  remanded  for 
a  new  trial.  Carpentier  v.  Gardiner,  29 
Cal.  160;  Atherton  v.  Fowler,  46  Cal.  323; 
Daves- V.  Southern  Pacific  Co.,  98  Cal.  19; 
35  Am.  St.  Eep.  133;  32  Pac.  70S.  The  su- 
preme court,  under  the  plenary  powers 
vested  in  it  by  this  section,  will  order  a 
judgment  only  in  a  proper  case,  and  a  new 
trial  where  the  action  seems  to  demand  it. 
Alden  v.  Mayfield,  164  Cal.  6;  127  Pac.  44. 

New  trial.  While  the  parties  have  a 
right  to  retry  the  cause  after  judgment 
reversed,  yet  they  cannot  do  so  in  disre- 
gard of  the  opinion  of  the  supreme  court, 
as  the  directions  thereof  become  a  part  of 
the  judgment.  Davidson  v.  Dallas,  15  Cal. 
75.  The  superior  court  can  enter  no  other 
judgment  than  the  one  directed.  Argenti 
v.  Sawyer,  32  Cal.  414.  The  lower  court, 
having  passed  on  the  merits  of  the  con- 
troversy on  reversal  of  the  judgment,  can 
take  no  further  proceedings,  unless  au- 
thorized by  the  supreme  court,  except  such 
as  may  be  necessary  to  give  effect  to  the 
judgment  on  appeal:  the  whole  matter  is 
res  adjudicata  (Crowell  v.  Gilmore,  17  Cal. 
194;  Soule  v.  Ritter,  20  Cal.  522;  McLaugh- 
lin V.  Kellv,  22  Cal.  211;  Marshall  v.  Shaf- 
fer, 32  Cal.  176;  Satterle^  v.  Bliss,  36  Cal. 
489;  Argenti  v.  Sawyer,  32  Cal.  414).  The 
reversal,  by  the  supreme  court  of  the 
United  States,  of  a  judgment  of  affirmance 
of  the  state  supreme  court,  does  not  im- 
mediately reverse  the  judgment  of  the  su- 
perior court:  upon  the  coming  down  of  the 
remittitur,  the  appeal  is  still  pending  in 
the  state  supreme  court,  for  further  dispo- 
sition not  inconsistent  with  the  decision  of 
the  Federal  supreme  court.  Harding  v. 
Harding,  148  Cal.  397;  83  Pac.  434.  If  the 
appellant  dies  after  the  submission  of  the 
appeal,  and  the  judgment  and  order  ap- 
pealed from  are  affirmed,  the  affirmance 
will  be  entered  nunc  pro  tunc  as  of  the 
date  of  the  submission.  Estate  of  Dolbeer, 
149  Cal.  227;  86  Pac.  695.  Where  the  ap- 
pellate court  affirms  an  order  granting  a 
new  trial,  it  is  proper  to  grant  the  new 
trial,  rather  than  to  order  judgment.  Pol- 
litz  V.  Wickersham,  150  Cal.  238;  88  Pac. 
911.  A  new  trial  will  be  awarded,  and  not 
a  modification,  where  a  wrong  construction 
is  jdaced  upon  a  written  instrument  in  evi- 
dence. Hicks  V.  Coleman,  25  Cal.  122;  85 
Am.  Dec.  103.  Extreme  caution  should  be 
exercised  in  refusing  a  new  trial  on  re- 
versal;  it  should  be  refused  only  in  cases 


41 


POWERS  IN  APPEALED  CASES. 


§53 


where  it  is  plain,  either  from  the  pleadings 
or  from  the  nature  of  the  controversy,  that 
the  party  against  whom  the  reversal  is 
I)roeurecl  cannot  prevail.  ttchroeder  v. 
Schweizer  Lloyd  etc.  Gesellschaft,  GO  Cal. 
467;  44  Am.  Kep.  (Jl;  Oakland  Paving  Co. 
V.  Bagge,  79  Cal.  439;  21  Pac.  8.55;  Estate 
of  Kichardson,  94  Cal.  G3;  15  L.  K.  A.  G35; 
29  Pac.  484. 

Written  decisions.  While  the  constitu- 
tion riMjuires  that  all  decisions  shall  be  in 
writing,  yet  the  legislature  cannot  require 
the  supreme  court  to  give  in  writing  the 
reasons  for  its  decision.  Houston  v.  Wil- 
liams, 13  Cal.  24;  73  Am.  Dec.  565;  and  see 
also  Estate  of  .Tessup,  81  Cal.  408;  6  L.  H. 
A.  594;  21  Pac.  976;  22  Pac.  742,  1028. 
There  is  a  distinction  between  the  decision 
of  the  court  and  the  opinion;  the  decision 
is  the  judgment  of  the  court,  w'hile  the 
opinion  is  the  reasons  given  for  the  judg- 
ment. Houston  V.  Williams,  13  Cal.  24;  73 
Am.  Dec.  565;  Wilson  v.  Wilson,  64  Cal. 
92;  27  Pac.  861.  The  trial  court  may  give 
a  wrong  reason  for  its  decision;  yet  if  it 
is  correct  in  law,  it  will  not  be  reversed, 
as  the  ajipellate  court  will  not  review  the 
reasons  for  its  decision:  the  statute  does 
not  make  it  incumbent  upon  the  prevailing 
party  to  defend  the  logic  of  the  trial  judge 
(Chabot  V.  Tucker,  39  Cal.  434;  Dav'ev  v. 
Southern  Pacific  Co.,  116  Cal.  325;  48  Pac. 
117;  Groome  v.  Almstead,  101  Cal.  425;  35 
Pac.  1021;  Shanklin  v.  Hall,  100  Cal.  26; 
34  Pac.  636;  W^hite  v.  Merrill,  82  Cal.  14; 
22  Pac.  1129;  People  v.  Crowey,  56  Cal.  36; 
Clarke  v.  Huber,  25  Cal.  593;  Hubbard  v. 
Sullivan,  18  Cal.  508;  Eleven  v.  Freer,  10 
Cal.  172;  Helm  v.  Dumars,  3  Cal.  454);  be- 
sides, any  unnecessary  expression  of  opin- 
ion by  the  judge  does  not  settle  the  law 
of  the  case.  State  v.  McGlvnn,  20  Cal.  233; 
81   Am.  Dec.  118. 

Remittitur.  The  effect  of  filing  the  re- 
mittitur in  the  lower  court,  where  every- 
thing is  regular,  and  free  from  fraud  or 
imposition,  is  to  deprive  the  supreme  court 
of  jurisdiction,  unless  for  some  valid  rea- 
son the  remij:titur  is  recalled  and  the  juris- 
diction resumed.  Grogan  v.  Ruckle,  1  Cal. 
193;  Mateer  v.  Brown,  1  Cal.  231;  Phelan 
V.  San  Francisco,  20  Cal.  39;  Blanc  v.  Bow- 
man, 22  Cal.  23;  Rowland  v.  Kreyenhaeen, 
24  Cal.  52;  Vance  v.  Pena,  36  'Cal.  328; 
Hanson  v.  McCue,  43  Cal.  178;  People  v. 
Sprague,  57  Cal.  147;  People  v.  McDer- 
mott,  97  Cal.  247;  32  Pac.  7;  Estate  of 
Levinson.  108  Cal.  450;  41  Pac.  483;  42 
Pac.  47  9.  Jurisdiction,  however,  is  not 
lost  until  the  remittitur  is  filed  in  the 
lower  court.  Grogan  v.  Ruckle,  1  Cal.  193; 
Mateer  v.  Brown,  1  Cal.  231.  Where  acci- 
dent, fraud,  imposition,  inadvertence,  or 
mistake  is  shown,  the  supreme  court  may 
recall  the  remittitur  and  stay  proceedings. 
Rowland  v.  Krevenhagen,  24  Cal.  52; 
Vance  v.  Pena,  36' Cal.  328;  Estate  of  .Tes- 
sur.,  81  Cal.  408;  6  L.  R.  A.  594;  21  Pac. 
976;   22  Pac.  742,   1028.     If  the   clerk   im- 


jiroperly  or  improvidcntly  Bonds  the  remit- 
titur to  the  lower  court,  the  sujirfnie  court 
is  not  thereby  deprived  of  jurisdiction 
(Grogan  v.  Ruckle,  1  Cal.  193;  Mateer  v. 
Brown,  1  Cal.  231);  as  where  he  makes  a 
wrong  entry  and  transmits  the  wrong  re- 
mittitur. Vance  v  Pefia,  36  Cal.  328.  In 
such  cases  the  supreme  court  does  not  lose 
jurisdiction,  and  may  recall  the  remittitur 
even  after  it  has  been  filed,  correct  any 
error,  vacate  the  judgment,  and  restore  the 
cause  to  the  calendar.  Vance  v.  Pena,  36 
Cal.  328;  Hanson  v.  McCue,  43  Cal.  178; 
Bernal  v.  Wade,  46  Cal.  640.  On  the  death 
of  one  of  the  parties  after  argument  and 
submission  but  before  decision,  if  the  re- 
mittitur has  been  sent  to  the  lower  court, 
it  may  be  ordered  returned,  judgment  set 
aside,  and  the  court  may  render  a  decision 
as  of  the  date  of  the  submission.  Black  v. 
Shaw,  20  Cal.  68;  Savings  and  Loan  So- 
ciety V.  Gibb,  21  Cal.  595;  Holloway  v. 
Galfiac,  49  Cal.  149.  A  petition  for  re- 
hearing, deposited  in  an  express-office  so 
as  to  reach  the  clerk  within  the  limit  of 
time  fixed  by  the  rule,  will  be  held,  in  con- 
templation of  law,  to  be  in  the  hands  of 
the  clerk,  and  the  remittitur,  having  gone 
down,  will  be  recalled  (Hanson  v.  McCue, 
43  Cal.  178;  Bernal  v.  Wade,  46  Cal.  640); 
but  a  printed  transcript  in  course  of  trans- 
mission is  not  within  this  rule.  Ward  v. 
Healy,  110  Cal.  587;  42  Pac.  1071.  The 
remittitur  will  not  be  recalled  after  a  dis- 
missal for  failure  to  file  a  brief.  People  v. 
McDermott,  97  Cal.  247;  32  Pac.  7. 

CODE  COMMISSIONERS'  NOTE.  1.  When 
court  will  not  reverse  judgment  of  lower  court. 
The  supreme  court  will  not  reverse  an  order  made 
by  a  judge,  refusing  to  grant  a  new  trial,  unless 
there  has  been  a  gross  abuse  of  discretion  in  the 
premises.  The  court  will  not  review  the  verdict 
of  a  jury,  where  the  evidence  is  contradictory,  or 
where  the  jury  refuse  to  give  full  credit  to  the 
testimony  of  witnesses.  Duell  v.  Bear  River  etc. 
Mining  Co.,  5  Cal.  8G.  The  findings  of  a  court, 
etc.,  will  be  taken  to  be  correct,  unless  it  clearly 
appears  to  the  contrary.  Every  intendment  is  in 
favor  of  the  correctness  of  a  court  of  general 
jurisdiction,  unless  it  clearly  appears  to  the  con- 
trary. lilcHenrv  v.  Moore,  5  Cal.  90;  Ford  v.  Hnl- 
ton,  5  Cal.  319;  Morgan  v.  Ilugg,  .5  Cal.  409; 
Ellis  V.  Jean.s,  26  Cal.  272;  Dickinson  v.  Van 
Horn,   9  Cal.  207;    Owen  v.   Morton,   24   Cal.   378. 

2.  Setting  aside  order  granting  new  trial.  The 
supreme  court  have  repeatedly  decided  that  the 
power  to  grant  new  trials  is  one  of  legal  discre- 
tion, and  the  abuse  of  that  discretion,  only,  will 
justify  an  interference  with  the  order.  It  is  only 
in  rare  in.'^tances  and  upon  very  strong  grounds 
that  the  supreme  court  will  set  aside  an  or'ler 
granting  a  new  trial.  Quinn  v  Kenyon,  22  Cal. 
a2. 

3.  When  court  will  not  direct  entry  of  final 
Judgment  of  lower  court.  The  sujireme  court  will 
not  direct  the  entry  of  a  final  judgment  when 
there  are  controverted  facts  to  be  decided.  Lick 
V.  Diaz,   37  Cal.  446. 

4.  Correction  of  false  or  mistaken  entry  or 
order  in  minutes  of  supreme  court.  When  there 
is  a  false  order  entered  by  mistake  by  the  clerk 
of  the  supreme  court,  the  minutes  of  the  chief 
justice  may  be  used  in  a  direct  proceeding  to 
amend  the  record  for  the  purpose  of  correcting 
the  minutes  of  the  clerk,  even  after  a  remittitur 
has  issued.    Vance  v.  Pena    30  Cal.  32-*. 

5.  Correction  of  errors  in  records  of  lower  court. 
The   supreme   court   cannot  correct   errors   in   the 


§§  54^57  SUPREME   COURT.  42 

records  of  a  lower  court.      Applications  for   that  6.  Power  of  court  to  make  rules.     The  power 

purpose  must  be  made  to  the  court  in  the  record  of   the    court    to    make    rules    for    its    government, 

of  which  the  error  exists.    Boston  v.  Haynes,   31  and  the  time  when  such  rules  take  effect,  is  pro- 

Cal.    107.  vided  for  in  §§  129,   130,  post. 

§  54.     Concurrence  necessary  to  transact  business.     The  concurrence  of 

three  justices  of  the  supreme  court  is  necessary  for  the  issuance  of  any  writ, 

or  the  transaction  of  any  business,  except  such  as  can  be  done  at  chambers; 

provided,  that  each  of  the  justices  shall  have  power  to  issue  writs  of  habeas 

corpus  to  any  part  of  the  state  upon  petition  by  or  on  behalf  of  any  person 

held  in  actual  custody,  and  may  make  such  writs  returnable  before  himself 

or  the  supreme  court,  or  any  department,  or  judge  thereof,  or  before  any 

superior  court  in  the  state,  or  any  judge  thereof. 

Concurrence  of  judges.    See  Const.,  art.  vi,  §  2.       from  the  state  are  suspended,  and  a  previ- 
Eusiuess  at  chambers.   Post,  §  16.5.  ous  concurrence  of  such  absent  iustice,  in 

Habeas     corpus.      See     U.     S.     Const.,     art.     v,  nrdpr  mnrlp  rlnrino-  Viic   nh«Pnf>P    i<5   nf  no 

Amdts.:  Const.,  art.  vi,  §  4.  See  also  post,  §§  76,  an  order  made  during  his  absence,  is  ot  no 
165.  Generally.  Pen.  Code,  §§  1268  et  seq.,  1473  effect.  People  V.  Kuef,  14  Cal.  App.  5/6, 
et  seq.,  1492  et  seq.  5S1;  114  Pac.  48,  54.  A  judgment  of  the 
Legislation  g  54.  1.  Enacted  March  11,  1873,  district  court  of  appeal  becomes  final,  Un- 
as §  46,  and  then  read:  "The  presence  of  three  less  within  thirty  davs  after  such  judg- 
Justices  is  necessary  for  the  transaction  of  busi-  mp^it  a  vnlid  order  i'^  iriadp  bv  the  sunremp 
ness,  but  one  or  more  of  the  justices  may  trans-  ment  a  \  aud  order  is  made  Dy  tne  supreme 
act  such  business  as  can  be  done  at  chambers,  court  that  the  cause  be  heard  and  deter- 
and  may  adjourn  the  court  from  day  to  day,  with  mined  by  the  court  last  named.  People  V. 
the  same  effect  as  if  all  "f  ere  pre.sent  "  jj^   f    14  q    j     ^  jg;^     -^^^^  p         43       rj, 

2.  Amended  by  Code  Amdts.  1S80,  p.  25,  and  .      ,.'  „  i-   1   •   1.     '        ,       £  i 
renumbered  §  54.  justices  01  a  district  court  or  appeal  can- 

3.  Repeal  bv  Stats.  1901,  p.  119;  unconstitu-  not  render  a  judgment  (Daggett  v.  South- 
tional.   See  note  ante,  §  5.                  •  ^.^^^  Packing  Co.,   155  Cal.   762;   103  Pac. 

Concurrence,  defined.     The  joint  concur-  202):   the  three  judges  of  that  court  must 

rence   of   four   justices,   necessary    for   the  concur   in    the   judgment.     Application    of 

transaction     of     business     by     the     court,  Ladue,    15    Cal.    App.    ISS;    117    Pac.    586; 

means  a  union  in  action  and  design  of  the  Application   of   Woods,   17   Cal.   App.   323; 

required  number  of  justices  qualified,  with  123  Pac.  1135;  Application  of  Galivan,  17 

power  to  act  at  the  very  moment   of  the  Cal.  App.  624;  120  Pac.  1123. 
decision;  the  functions  of  a  justice  absent 

§  55.  Transfer  of  books,  papers,  and  actions.  All  records,  books,  papers, 
causes,  actions,  proceedings,  and  appeals  lodged,  deposited,  or  pending  in 
the  supreme  court  abolished  by  the  constitution,  are  transferred  to  the  su- 
preme court  herein  provided  for,  which  has  the  same  power  and  jurisdiction 
over  them  as  if  they  had  been  in  the  first  instance  lodged,  deposited,  filed,  or 
commenced  therein,  or,  in  cases  of  appeal,  appealed  thereto. 

Transfer  of  papers.    Const.,  art.  xxii,  §  3.  3.  Repeal  by  Stats.  1901,  p.  119;  unconstitu- 

Leglslation  §  55.      1.   Added    by    Code    Amdts.         tional.    See  note  ante,  §  5. 
t880,   p.  25. 

§  56.  Remittiturs  in  transferred  cases.  In  all  cases  of  appeal  transferred 
to  the  supreme  court, .its  judgments  shall  be  remitted  to  the  superior  courts 
of  the  counties,  or  cities  and  counties  from  which  the  appeals  were  taken 
respectively,  with  the  same  force  and  effect  as  if  said  cases  had  been  ap- 
pealed to  the  supreme  court  from  such  superior  courts. 

Remittitur.    See  post,  §  958. 

Legislation  §  56.     Added  by  Code  Amdts.  1880, 
p.  26. 

§  57.  Appeals  in  probate  proceeding's  and  contested  election  cases.  Ap- 
peals in  probate  proceedings  and  contested  election  cases  shall  be  given 
preference  in  hearing  in  the  supreme  court,  and  be  placed  on  the  calendar 
in  the  order  of  their  date  of  issue,  next  after  cases  in  which  the  people  of  the 
state  are  parties. 

Legislation  8  57.  1.  Added  by  Stats.  1887,  ceedings  shall  be  given  preference  in  hearing  in 
p.    82,    and   then   read:    "Appealsin   probate   pro-         the  supremo  court,  and  be  placed  on  the  calendar 


43  JUDGES  AND  ELECTIONS.  §§  58-65 

in   the   order   of  their  date   of  issue,    next   after  Speedy  determination.      The  law  contem- 

cases   in  which   the  people  of  the  state  are   par-        »,i„<,      ,       .„„i        i*  j.-  n  u^ 

tigg  •'  '^    ^  c     la  c  uic  pa  platcs  a  speedy   (ietoriiunation   of  probata 

2.  Amended  by  Stats.  1903,  p.  69.  cases  and  election  contests.    Estate  of  lley- 

Tho  original  §  57  related  to  jurisdiction  of  dis-  wood,  ];")4  ("al.  .312;  97  Pac  H'J.'j;  Bass  V. 
trict  courts.  Leavitt,  11  Cal.  App.  582;  10.5  Pac.  771. 

§  58.     [Related  to  terms  of  court  in  first  district.     Repealed.] 

Legislation  8  58.      1,  Enacted  March  11,  1872.  4.   Repealed  by   Code  Amdls.   1880,  p.  21,  in 

2.  Amended  by  Code  Amdts.  1873-74,  p.  397.         amending  Part    1. 

3.  Amended  by  Code  Amdts.   1875-76,  p.  83. 

§  59.     [Related  to  terms  of  court  in  second  district.     Repealed.] 

Legislation  §  59.     1.    Enacted  March  11,  1872.  3.   Repealed  by  Code  Amdts.   1880,  p.  21,   in 

2.    Amended  by  Code  Amdts.  1875-76,  p.  83.         amending  Part  I. 

§60.     [Related  to  terms  of  court  in  third  district.     Repealed.] 

Legislation  §  60.      1.  Enacted  March  11,  1872.  3.   Repealed  by  Code  Amdts.   1880,  p.  21,  in 

2.   Amended  by  Code  Amdts.  1877-78,  p.  93.         amending  Part  I. 

§  61.     [Related  to  terms  of  court  in  fourth  district.     Repealed.] 

Legislation  §  61.      1.   Enacted  March  11,  1S72.         amending  Part  I. 
2.    lijpealed  by   Code  Amdts.    1880,   p.   21,   in 

§  62.     [Related  to  terms  of  court  in  fifth  district.     Repealed,] 

Legislation  g  62.      1.   Enacted  March  11,  1872.         amending  Part  I. 
2.   Repealed  by  Code  Amdts.  1880,  p.  21,   in 

§  63.     [Related  to  terms  of  court  in  sixth  district.     Repealed.] 

Legislation  §  63.      1.   Enacted  March  11,  1872.         amending  Part  I. 
2.  Repealed  by  Code  Amdts.   1880,  p.  21,   in 

§  64.     [Related  to  terms  of  court  in  seventh  district.     Repealed.] 

Legislation  S  64.      1.  Enacted  March  11,  1872.  legislature  is  required  to  pass  laws  providing  for 

2.  Amended  by  Code  Amdts.  1875—76,  p.  84.  and  regulating  the  conduct  of  the  election.      And 

3.  Repealed  by  Code  Amdts.  1880,  p.  21,  in  an  election  for  district  judge  would  be  invalid, 
amending  Part  I.  unless   made  in  pursuance  of  the   statutory  regu- 

^^■r^..,  ^^-^^-rr^^-^r^-^-r^-r,^.  ^-r^^^       rr,,  •  latlous.     Pcoplc    V.    WclleT,    11    CbI.    40;    70    Am. 

CODE  COMMISSIONEKS'  NOTE.      The  consti-  jy^^   §54  ;   see  further,  for  elections  to  fill  vacancy, 

tution    art    vi,^  o,    [1849,]   does  not  provide  fully  term,   etc.,   People  v.  Weller,    11    Cal.    77;    People 

for    the    election    of    district   ..ludges.      Statutory  ^    Burbank.  12  Cal.  378;  Brodie  v.  Campbell,  17 

regulations    are   required    to    give    efficacy    to    the  c^l.  11.    See  Pol.  Code,  §§  1042,  1043. 
constitution,    which,    is    not    self-executing.      The 

CHAPTER  IV. 

SUPEEIOE  COURTS. 

§65.    Judges  and  elections.  §71.  Superior  courts,  by  judges  of  other  counties, 

§  66.     Counties  liaving  two  or  more  judges.  §  72.  Judges  pro  tempore. 

§  67.     Superior    court   of   the   city   and   county   of         §  73.  Sessions. 

San  Francisco.  §  74.  Adjournments. 

§  67a.  Superior  court  of  Los  Angeles  County.  §75.  Jurisdiction  of  two  kinds. 

§  67b.  Extra  sessions  of  the  superior  court.  §  76.  Original  jurisdiction. 

§68.     Terms  of  oftice.  §77.  Appellate  jurisdiction. 

§  69.     Computation  of  years  of  office.  §  78.  Process. 

I  70.    Vacancies.  §  79.  Transfer   of   books,    papers,    and    actions. 

§  65.  Judges  and  elections.  There  shall  be  in  each  of  the  organized 
counties,  or  cities  and  counties  of  the  state,  a  superior  court,  for  each  of 
which  one  judge,  and  for  some  of  which  two  or  more  judges,  as  hereinafter 
in  subsequent  sections  specially  provided,  shall  be  elected  by  the  qualified 
electors  of  the  county,  or  city  and  county,  at  the  general  state  elections,  next 
preceding  the  expiration  of  the  terms  of  office  of  their  predecessors  respect- 
ively; provided,  that  in  and  for  the  counties  of  Yuba  and  Sutter  combined 
only  one  superior  judge  shall  be  elected,  who  shall  hold  the  superior  courts 
of  both  said  counties,  and  in  accordance  with  such  rules  for  the  dispatch  of 
business  in  both  said  counties  as  he  may  adopt. 

Number  of  superior  judges.    See  Const,,  art.  vi.  Separate    judges    for    Sutter    and    Yuba.      See 

§  6.  Stats.  1897,  p.  48. 

R/'7"/'^,^a**^*'*"^     °^     superior     courts.      See     post.  Legislation  g  65.      1.   Added    by    Code    Amdts. 

*S  'o-7»-  1880,   p.   26,    to   conform   to   Const.    1879.     The 


§§  66-67a  SUPERIOR  courts.  44 

original  5  65   was  included  in   original   code   chap-  Code   Amdts.    1880,   p.   21,   in   amending  Part   I. 

ter   iv,  §§  54-78,    Title   I,   which  fixed   the   terms,  3.   Repeal   by    Stats.    1901,   p.    119;    unconsti- 

etc,  of  the  district  courts  in  the   seventeen  judi-  tutional.     See  note   ante,  §  5. 
cial  districts   of   the   state,   and  was  repealed  by 

§  66,  Counties  having  two  or  more  judges.  In  each  of  the  counties  of 
Alameda,  Los  Angeles.  Sacramento,  San  Joacjuin,  Santa  Clara,  and  Sonoma, 
there  shall  be  elected  two  judges  of  the  superior  court;  and  in  each  of  said 
counties,  and  in  any  county,  or  city  and  county,  other  than  the  city  and 
county  of  San  Francisco,  in  which  there  shall  be  more  than  one  judge  of  the . 
superior  court,  the  judges  of  such  court  may  hold  as  many  sessions  of  said 
court  at  the  same  time  as  there  are  judges  thereof,  and  shall  apportion  the 
business  among  themselves  as  equally  as  may  be. 

Number  of  superior  judges.    See  Const.,  art.  vi,  3.   Repeal  by  Stats.  1901,  p.  119;  unconstitu- 

§§6,  7.  tional.     See  note   ante,  §  5. 

„    ,        ...  See  ante.  Legislation,   §  65,  for  repeal  of  origi- 

Legislation  §  66.      1.  Added    by    Code    Amdts.  ^gj  s  gg 
18SO.  p.  26,   to  conform  to  Const.   1879. 

§  67.  Superior  court  of  the  city  and  county  of  San  Francisco.  In  the  city 
and  county  of  San  Francisco,  there  shall  be  sixteen  judges  of  the  superior 
court,  any  one  or  more  of  whom  may  hold  court;  and  there  may  be  as  many 
sessions  of  said  court  at  the  same  time,  as  there  are  judges  thereof.  The 
said  judges  shall  choose  from  their  own  number,  a  presiding  judge,  who  may 
at  any  time  be  removed  as  presiding  judge,  and  another  chosen  in  his  place 
by  a  vote  of  any  nine  of  them.  The  presiding  judge  shall  distribute  the  busi- 
ness of  the  court  among  the  judges  thereof,  and  prescribe  the  order  of  busi- 
ness, and  perform  such  other  duties  as  the  judges  of  said  court  may  by  rule 
provide.  The  judgments,  orders  and  proceedings  of  any  session  of  the  su- 
perior court,  held  by  any  one  or  more  of  the  judges  of  said  court,  shall  be 
equally  as  effective  as  if  all  of  said  judges  of  said  court  presided  at  such 
session. 

Within  ninety  daj'S  after  this  act  becomes  a  law,  the  governor  shall  ap- 
point four  judges  of  the  superior  court  in  the  city  and  county  of  San  Fran- 
cisco, in  addition  to  the  twelve  superior  court  judges  already  provided  for 
by  law,  in  and  for  said  city  and  county  of  San  Francisco,  state  of  California, 
who  shall  hold  othce  until  the  first  Monday  after  the  first  day  of  January, 
nineteen  hundred  and  fifteen.  At  the  next  general  election  to  be  held  in 
November,  nineteen  hundred  and  fourteen,  four  additional  judges  of  the 
superior  court  shall  be  elected  in  the  city  and  county  of  San  Francisco,  who 
shall  be  successors  of  the  judges  appointed  hereunder  for  the  term  prescribed 
by  the  constitution  and  by  law.  The  salaries  of  the  said  additional  judges 
shall  be  the  same  in  amount  and  be  paid  in  the  same  manner  and  at  the  same 
time  as  the  salaries  of  the  other  judges  of  the  superior  court  in  and  for  the 
city  and  county  of  San  Francisco,  and  now  authorized  by  law. 

Number  of  superior  judges.    See  Const.,  art.  vi,  presiding  judge,"   after  "removed,"  and   (b)    sub- 

§  6.  stituting   "nine  of  them"  for  "seven  of  them,"   at 

Process.    Post,  §78.  end    of    sentence;     (3)    in    third    sentence,    adding 

.      ,.  at    end,    "and    perform    such    other    duties    as    the 

Legislation  g  07.      1.   Added    by    Code    Amdts.  judges  of  said  court  may  by  rule  provide"  ;   (4)  in 

ISSO,  p.  2G,  to  conform  to  Const.  1879.  fourth  sentence,  substituting  "equallv  as  effective 

3.   Repeal  by  Stats.  1901,  p.  119;  unconstitu-  gg  jf  ^i,  ^f  ^^^jj  judges"   for  "equally  effective  as 

tional.    See  note  ante,  §  5.                            „      ,,s     .  if   all   the   judges";    (5)    adding   the   second   para- 

3.   Amended    by    Stats.    1913,    p.    48,     (1)    in  graph, 

first    sentence    substituting    "there    shall    be    six-  See  ante,  LegislatiJon  §  G5,  for  repeal  of  original 

teen    judges"    for    "there   shall    be    elected    twelve  e  gy_ 
judges";    (2)   in  second  sentence,    (a)    adding   "as 

§  67a.  Superior  court  of  Los  Angeles  County.  In  counties  of  the  first 
class  there  shall  be  eighteen  judges  of  the  superior  court,  any  one  or  more- 


45  EXTRA    SESSIONS   OF   THE    SUPERIOR   COURT.  §  67b 

of  whom  may  hold  court,  and  there  may  be  as  many  sessions  of  said  court 
at  the  same  time  as  tliere  are  ."judf2:es  thereof.  The  said  judf^es  shall  choose 
from  their  OAvn  number  a  presidino:  judire,  who  may  at  any  time  be  removed 
as  presiding  judge  and  another  judge  chosen  in  his  place  by  a  vote  of  any 
twelve  of  them.  The  presiding  judge  shall  distribute  the  business  of  the 
court  among  the  judges  thereof,  and  prescribe  the  order  of  business  and  per- 
form such  other  duties  as  the  judges  of  the  said  court  may  by  rule  provide. 
The  judgments,  orders  and  proceedings  of  any  session  of  the  superior  court 
held  by  any  one  or  more  of  the  judges  of  said  court  shall  be  equally  as  effect- 
ive as  if  all  the  said  judges  of  said  court  presided  at  such  session.  Within 
thirty  days  after  this  act  goes  into  effect,  the  governor  shall  appoint  six  ad- 
ditional judges  of  the  superior  court  in  counties  of  the  first  class  in  addition 
to  the  twelve  superior  court  judges  already  provided  by  law  in  and  for  the 
said  counties  of  the  first  class  who  shall  hold  office  until  the  first  Monday 
after  the  first  da}^  of  January,  nineteen  hundred  and  fifteen.  At  the  next 
general  election  to  be  held  in  November,  A.  D.  nineteen  hundred  and  four- 
teen, six  additional  judges  of  the  superior  court  shall  be  elected  in  counties 
of  the  first  class,  who  shall  be  successors  of  the  judges  appointed  hereunder, 
to  hold  office  for  the  term  prescribed  by  the  constitution  and  by  law.  The 
salaries  of  said  additional  judges  shall  be  the  same  in  amount  and  be  paid 
in  the  same  manner  and  at  the  same  time  as  the  salaries  of  the  other  judges 
of  the  said  counties  of  the  first  class  now  authorized  by  law. 

Legislation  §  67a.      1.   Added  by   Stats.   1909,  appoint    three    additional   judges    of   the    superior 

p.  11.  court  in   counties   of   the   second   class   in   addition 

2.  Amended  by  Stats.  1913,  p.  334,  (1)  in  to  the  nine  superior  court  judges  already  pro- 
first  sentence,  substituting  "In  counties  of  the  vided  for  by  law  in  and  for  the  said  county  of 
first  class  there  shall  be  eighteen  judges"  for  Los  Angeles,  state  of  California,  who  shall  hold 
''In  counties  of  the  second  class  there  shall  be  office  until  the  first  Monday  after  the  first  day 
twelve  judges";  (2)  at  end  of  second  sentence,  of  January,  1911";  (5)  in  sixth  sentence,  sub- 
substituting  "by  a  vote  of  any  twelve  of  them"  stituting  (a)  "in  November,  A.  D.  1914,  six  addi- 
for  "by  a  vote  of  any  seven  of  them";  (3)  at  tional  judges"  for  "in  November,  A.  D.  1910, 
end  of  fourth  sentence,  substituting  "presided  at  three  additional  judges,"  and  (b)  "counties  of 
such  session"  for  "presided  as  such  session,"  the  the  first  class"  for  "counties  of  the  second  class"; 
"as"  of  the  original  section  being  evidently  a  (6)  in  seventh  (the  last)  sentence,  substituting 
typographical  error;  (4)  recasting  the  fifth  sen-  "said  counties  of  the  first  class"  for  "suiierior 
tence,  the  original  reading,  "Within  thirty  days  court  of  Los  Angeles  County." 
after  this  act  becomes  a  law,  the  governor  shall 

§  67b.  Extra  sessions  of  the  superior  court.  Whenever,  in  the  opinion  of 
the  judge  or  a  majority  of  the  judges  of  the  superior  court  of  any  county, 
or  city  and  county,  the  public  interests  so  justify  or  require,  one  or  more 
sessions  of  said  superior  court,  to  be  known  as  extra  sessions  of  said  superior 
court,  may  be  held  in  addition  to  and  at  the  same  time  as  the  sessions  of  said 
court  spoken  of  in  sections  numbered  sixty-six  and  sixty-seven  of  this  code. 

Whenever  the  judge  or  a  majority  of  the  judges  of  the  superior  court  of 
•  any  county  or  city  and  county  shall  decide  that  an  extra  session  of  said 
court  shall  be  held,  said  judge  or  a  majority  of  said  judges  shall  appoint 
the  time  when  said  extra  session  shall  be  held,  but  no  extra  session  of  any 
superior  court  shall  continue  beyond  the  thirty-first  day  of  December  of  the 
year  in  which  such  session  is  established.  The  judge  or  a  majority  of  the 
judges  of  said  superior  court  shall  likewise  appoint  a  place,  within  the 
county  seat  of  said  county  or  city  and  county,  where  such  extra  session  of 
said  court  shall  be  held,  and  shall  have  the  same  power  and  authority  to  pro- 
vide a  place  for  holding  such  extra  session  of  said  court  as  is  had  by  a  judge 
of  a  superior  court  to  provide  a  place  for  holding  a  session  of  a  superior 
court. 


§  67b  SUPERIOR   COURTS.  46 

Whenever,  in  a  county  or  city  and  county  having  but  one  judge  of  the 
superior  court,  said  judge  shall  provide  for  an  extra  session  of  said  court, 
he  shall,  at  the  time  of  so  providing  or  from  time  to  time  during  the  con- 
tinuance of  said  extra  session,  apportion  to  the  judge  who  may  preside  over 
said  extra  session  such  portion  of  the  business  of  said  court  as  he  may  desire, 
and  at  the  close  of  such  extra  session  shall  order  such  portions  of  said  busi- 
ness so  apportioned  and  not  transacted  to  be  transferred  to  himself. 

Whenever,  in  any  countj^  or  city  and  county  having  more  than  one  judge 
of  the  superior  court,  a  majority  of  said  judges  shall  provide  for  an  extra 
session  of  said  court,  a  majority  of  said  judges,  at  the  time  of  so  providing 
or  from  time  to  time  during  the  continuance  of  said  extra  session,  shall  order 
transferred  to  the  judge  who  may  preside  over  such  extra  session  from  the 
judges  to  whom  they  have  been  assigned  according  to  law  or  the  rules  of 
said  court,  such  portions  of  the  business  of  said  court  as  they  may  select; 
and,  at  the  close  of  such  extra  session  shall  order  retransferred  to  the  judges 
of  said  court  such  portions  of  said  business  so  transferred  as  shall  not  have 
been  transacted.  Except  as  above  provided,  any  rules  of  any  superior  court 
relating  to  the  transfer  of  any  business  from  one  judge  of  said  court  to 
another  shall  apply  to  the  transfer  of  any  business  duly  assigned  to  the  judge 
presiding  over  any  extra  session  from  said  judge  to  any  judge  of  said  court. 
Whenever  an  extra  session  of  the  superior  court  of  any  county  or  city  and 
county  has  been  provided  for,  the  judge  or  a  majority  of  the  judges  of  said 
superior  court  shall  invite  and  authorize  a  judge  of  the  superior  court  of 
some  other  county  or  city  and  county  to  hold  and  preside  over  such  extra 
session,  and  upon  such  invitation  and  authorization  such  judge  may  so  serve. 
Upon  the  request  of  the  judge  or  a  majority  of  the  judges  of  the  superior 
court  of  any  county  or  city  and  county,  the  governor  of  the  state  shall  desig- 
nate and  authorize,  to  hold  and  preside  over  such  extra  session  of  the  su- 
perior court  of  said  county  or  city  and  county,  a  judge  of  the  superior  court 
of  some  other  county  or  city  and  county;  and  upon  such  designation  and 
authorization  by  the  governor  such  judge  must  so  serve. 

The  judgments,  orders,  and  proceedings  of  any  extra  session  of  any  su- 
perior court,  held  in  accordance  with  the  provisions  of  this  section,  shall  be 
equally  effective  as  if  any  or  all  of  the  judges  of  said  court  presided  at  such 
session.  Any  judge  or  any  number  of  the  judges  of  any  superior  court  may 
hold  and  preside  over  any  extra  session  of  said  court,  with  or  without,  the 
judge  designated  and  authorized  to  hold  and  preside  over  said  session.  Any 
judge  of  any  superior  court  may  perform  in  connection  with  any  business 
duly  assigned  to  the  judge  presiding  over  any  extra  session  of  said  court  any 
act  which  he  could  perform  in  connection  with  any  business  assigned  to  any 
other  judge  of  said  court.  Any  judge,  holding  or  presiding  over  any  extra 
session  of  a  superior  court,  may  perform  in  chambers  or  in  court,  in  connec- 
tion with  any  business  duly  assigned  to  him,  any  act  which  could  be  per- 
formed by  any  judge  of  said  court,  in  chambers  or  in  court,  in  connection 
with  such  business  if  duly  assigned  to  himself;  but  no  judge,  holding  or 
presiding  over  any  extra  session  of  any  superior  court,  shall  perform,  in 
chambers  or  in  court,  any  act  in  connection  with  any  business  that  has  not 
been  duly  assigned  to  him. 


47     TERMS  OF  OFFICE — SUPERIOR  COURTS,  BY  JUDGES  OF  OTHER  COUNTIES.    §§  68-71 

All  provisions  of  the  laws  of  this  state  applying  to  the  compensation  of  a 
judge  of  a  superior  court,  holding  the  superior  court  in  a  county  other  than 
his  home  county,  shall  apply  to  judges  holding  extra  sessions  of  a  superior 
court  in  any  county  other  than  his  home  county. 

Legislation  g  67b.  AtUkd  by  Stats.  1909,  necessarily  constitutes  a  request  made  by 
P-  1004.  Qjjg  jii'lge.    ^VilliaIns  v.  Hawkins,   2U  Cal. 

Majority  action.     A  request,  made  by  a       App.  161;  128  Pac.  754. 
majority  of  the  judges  of  a  superior  court, 

§  68.  Terms  of  office.  The  term  of  office  of  judges  of  the  superior  court 
shall  be  six  years  from  and  after  the  first  INIonday  of  January  next  succeed- 
ing their  election;  provided,  that  the  twelve  judges  of  the  superior  court 
elected  in  the  city  and  county  of  San  Francisco  at  the  general  state  election 
of  eighteen  hundred  and  seventy-nine  shall  have  so  classified,  or  shall  so 
classify  themselves,  by  lot,  that  four  of  them  shall  go  out  of  office  at  the 
end  of  one  year,  four  of  them  at  the  end  of  three  years,  and  four  of  them  at 
the  end  of  five  years  from  the  first  Monday  of  January,  eighteen  hundred 
and  eighty;  and  the  entry  of  such  classification  shall  have  been,  or  shall  be, 
made  in  the  minutes  of  the  court,  signed  by  them,  and  a  duplicate  thereof 
filed  in  the  office  of  the  secretary  of  state ;  and  provided  further,  that  all  the 
other  superior  judges  elected  at  the  general  state  election  of  eighteen  hun- 
dred and  seventy-nine  shall  go  out  of  office  at  the  end  of  five  years  from  the 
first  Monday  of  January,  eighteen  hundred  and  eighty. 

Term  of  office.    See  Const.,  art.  vi,  §  6.  2.  Repeal  by   Slats.   1901,   p.   119;   unconsti- 

tutional.    See   note  ante,  §  5. 
Legislation  §  68.      1.  Added    by    Code    Amdts.  See   ante,  Legislation  §  65,   for  repeal  of  origi- 

18SO,  p.  27,  to  conform  to  Const.  1879.  nal  §  C8. 

§  69.  Computation  of  years  of  office.  The  years  during  which  a  judge 
of  a  superior  court  is  to  hold  office  are  to  be  computed  respectively  from  and 
including  the  first  Monday  of  January  of  any  one  year  to  and  excluding  the 
first  ]\Ionday  of  January  of  the  next  succeeding  year. 

Computation  of  time.    See  Const.,  art.  vi,  §  6.  Excluding  Monday.     The  constitution  of 

See  ante,  §41.  the  State  seems  to  exclude  the  first  Mon- 

Legislation  §  69.     1.  Added    by    Code    Amdts.  day,  in  computing  the  term  of  the  judges 

ISSO.  p.  27,  to  conform  to  Const.  1879.  of  the  superior  court.   Merced  Bank  v.  Ros- 

2.   Repeal   by   Stats     1901,   p.    119;    unconsti-  ^^^^    j     gg    <.    j     39      3^    p  g^g      33    p 

tutional.     See  note  ante,  S  ;>.  '  >  •  > 

See   ante,   Legislation  §  65,   for   repeal   of   origi-  ToZ, 
nal  §  69. 

§  70.  Vacancies.  If  a  vacancy  occur  in  the  office  of  judge  of  a  superior 
court,  the  governor  shall  appoint  an  eligible  person  to  hold  the  office  until 
the  election  and  qualification  of  a  judge  to  fill  the  vacancy,  which  election 
shall  take  place  at  the  next  succeeding  general  election,  and  the  judge  so 
elected  shall  hold  office  for  the  remainder  of  the  unexpired  term. 

Vacancy.  Legislation  §  70.      1.   Added    by    Code    Amdts. 

1.  Filling.      See     Const.,     art.    vi,    §    6.      See         1880.   p.   27,   to  conform   to   Const.    1879. 

ante,  §  42.  2.   Repeal   by   Stats.    1901,   p.    119;    unconsti- 

2.  In  office,  and  mode  of  supplying.    See  Pol.        tutional.    See  note  ante,  §  5. 

Code,  §§  995  et  soq.  See   ante,   Legislation  §  65,   for  repeal   of  origi- 

3.  Does  not  affect  pending  proceedings.    See        nal  §  70. 
post,  §  184. 

§71.  Superior  courts,  by  judges  of  other  counties.  A  judge  of  any 
superior  court  may  hold  the  superior  court  in  any  county,  at  the  request  of 
the  judge  or  judges  of  the  superior  court  thereof,  and,  upon  the  request  of 
the  governor,  it  shall  be  his  duty  to  do  so;  and  in  either  case  the  judge  hold- 
ing the  court  shall  have  the  same  power  as  a  judge  thereof. 


§§72,73 


SUPERIOR   COURTS. 


48 


acting  legally,  and  upon  a  proper  request, 
in  the  absence  of  any  showing  to  the  con- 
trary. Estate  of  Newman,  75  Cal.  213;  7 
Am/ St.  Eep.  14G;  16  Pac.  SS7;  People  v. 
Ah  Lee  Doon,  97  Cal.  171;  31  Pac.  933. 

Power  of  judge  acting  out  of  county. 
The  provision  gi\ing  a  judge,  holding  court 
in  another  county  on  request,  the  same 
power  as  the  judge  of  that  county,  is  con- 
stitutional (Gardner  v.  Jones,  126  Cal. 
614;  59  Pac.  126;  and  see  also  Kirkwood 
V.  Soto,  87  Cal.  394;  25  Pac.  488);  and  a 
judge  so  acting  has  the  same  power  as  the 
judge  for  whom  he  acts.  Estate  of  New- 
man, 75  Cal.  213;  7  Am.  St.  Rep.  146;  16 
Pac.  887;  People  v.  Ah  Lee  Doon,  97  Cal. 
171;  31  Pac.  933. 


Sitting  for  another  judge.  See  Const.,  art.  vi, 
§  8.    See  post,  §  160. 

Legislation  §  71.  1.  Added  by  Code  Amdts. 
18SO,   p.   27,   to  conform  to  Const.    1879. 

2.  Repeal  by  Stats.  1901,  p.  119;  unconsti- 
tutional.    See   note   ante,  §  .5. 

See  ante,  Legislation  §  65,  for  repeal  of  origi- 
nal 5  71. 

Holding  court  by  request.  This  section 
provides  a  mode  of  securing  the  attend- 
ance of  another  judge,  where  the  judge  of 
the  court  is  disqualified;  a  change  of  the 
place  of  trial  in  criminal  cases,  on  the 
ground  of  the  disqualification  of  the  judge, 
is  not  authorized  by  law  (People  v.  Mc- 
Garvey,  56  Cal.  327),  but  it  is  permissible 
in  civil  cases.  Gage  v.  Downey,  79  Cal. 
140;  21  Pac.  527,  855.  A  judge  "so  holding 
court  in  another  county  is  presumed  to  be 

§  72.  Judges  pro  tempore.  Any  cause  in  a  superior  court  may  be  tried 
by  a  judge  pro  tempore,  who  must  be  a  member  of  the  bar  admitted  to  prac- 
tice before  the  supreme  court,  agreed  upon  in  writing  by  the  parties  litigant, 
or  their  attorneys  of  record,  approved  by  the  court,  and  sworn  to  try  the 
cause;  and  his  action  in  the  trial  of  such  cause  shall  have  the  same  effect  as 
if  he  were  a  judge  of  such  court.  A  judge  pro  tempore  shall,  before  enter- 
ing upon  his  duties  in  any  cause,  take  and  subscribe  the  following  oath  or 
affirmation:  "I  do  solemnly  swear  (or  affirm,  as  the  case  may  be,)  that  I 
will  support  the  constitution  of  the  United  States  and  the  constitution  of 
the  state  of  California,  and  that  I  will  faithfully  discharge  the  duties  of  the 

office  of  judge  pro  tempore  in  the  cause  wherein is  plaintiff,  and is 

defendant,  according  to  the  best  of  my  ability." 


Judge. 

1.  Pro  tempore.    Const.,  art.  vi,  §  8. 

2.  Superior,    must    be    admitted    before    su- 
preme court.     See  post,  §  157. 

Legislation  §  72.      1.  Added    by    Code    Amdts. 


ISSO,  p.   27,  to  conform  to  Const.  1879. 

2.  Repeal  by  Stats.  1901,  p.  119;  unconstitu- 
tional.     See  note  ante,  §  5. 

See  ante,  Legislation  §  65,  for  repeal  of  origi- 
nal §  72. 


§  73.  Sessions.  The  superior  courts  shall  be  always  open  (legal  holidays 
and  non-judicial  days  excepted),  and  they  shall  hold  their  sessions  at  the 
county  seats  of  the  several  counties,  or  cities  and  counties,  respectively. 
They  shall  hold  regular  sessions,  commencing  on  the  first  IMondays  of  Janu- 
ary, April,  July,  and  October,  and  special  sessions  at  such  other  times  as 
may  be  prescribed  by  the  judge  or  judges  thereof;  provided,  that  in  the 
city  and  county  of  San  Francisco  the  presiding  judge  shall  prescribe  the 
times  of  holding  such  special  sessions. 


Duties  of  superior  judges,  generally.  See  Pol. 
Code.  §§  4150,  4151. 

Always  open.  See  Const.,  art.  vi,  §  5 ;  post, 
5  134. 

Holidays,  etc.    See  ante,  §  10;  post,  §§  134,  135. 

Legislation  §  73.  1.  Added  by  Code  Amdts. 
1880,  p.   27,  to  conform  to  Const.  1879. 

2.  Repp:il  by  Stats.  1901,  p.  119;  unconstitu- 
tional.     See  note  ante,  §  5. 

See  ante,  Legislation  §  65,  for  repeal  of  origi- 
nal §  73. 

Superior  court  always  open.  Terms  of 
the  superior  court  were  abolished  by  the 
constitution  of  1879.  In  re  Gannon,  69  Cal. 
541;  11  Pac.  240.  Prior  to  that  time,  it 
was  held,  under  §  76,  post,  which  then  pro- 
vided therefor  and  expressly  authorized  it, 
that  the  superior  court  was  always  open  to 


hear  special  proceedings  of  a  civil  nature. 
Stewart  v.  Mahoney  Mining  Co.,  54  Cal. 
149. 

Ministerial  acts  may  be  performed  on 
holiday.     See  note  ante,  §  13. 

Sessions  of  superior  court.  A  session  of 
court  means  the  time  during  whirdi  the 
court  is  in  fact  held  at  a  place  api>ointed, 
and  engaged  in  the  transaction  of  busi- 
ness. In  re  Gannon,  69  Cal.  541;  11  Pac. 
240;  Falltrick  v.  Sullivan,  119  Cal.  613;  51 
Pac.  947. 

Kecess.  By  the  term  "recess"  is  meant 
the  time  in  which  the  court  is  not  actually 
engaged  in  business.  In  re  Gannon.  69  Cal. 
641;  11  Pac.  240;  Falltrick  v.  Sullivan,  11» 
Cal.  613;  51  Pac.  947. 


49 


ADJOURNMENTS — ORIGINAL  JURISDICTION. 


§§7-i-7G 


§  74.  Adjournments.  Adjournments  from  day  to  day,  or  from  time  to 
time,  are  to  he  construed  as  recesses  in  the  sessions,  and  sluill  not  prevent 
the  court  from  sitting  at  any  time. 

Adiournment  presunied.  Tt  will  be  pre- 
sumed, in  favor  of  a  jiulgment,  that  the 
court  regularly  adjouriu'ij,  altlioujih  the 
record  fails  to  show  it.  Doty  v.  Jenkins, 
U2  L'al.497;  77  Pae.  1104. 


The  jurisdiction  of  the  superior  courts 


Equalization,  43  Cal.  3G5;  Ex  parte  Ben- 
nett, 44  Cal.  S4),  and  does  not  depend  upon 
the  rightfulness  of  the  decision  (Sherer  v. 
Superior  Court,  96  Cal.  653;  31  Pac.  .jlJo), 
3'et  it  may  be  understood  that  the  power 
to  pronounce  the  resulting  judtiment  consti- 
tutes a  I'art  of  the  suljject-inatter  over 
which  jurisdiction  extends.  Crew  v.  Pratt, 
119Cal'.  131;51Pac.  44. 


Adjournments  from  time  to  time  mere  recesses 
in  the  sessions.    See  ante,  §  48. 

Legislation  8  74.  1.  Added  by  Code  Amdts. 
18&0,  p.  -JS,   to  confDrm  to  Const.   1879. 

2.  Kt|)C!il  by  Stats.  1901,  p.  119;  unconstitu- 
tional.    See  note  ante,  §  5. 

Sei-  ante,  Legislation  §  05,  for  repeal  of  origi- 
nal §  7-1. 

§  75.     Jurisdiction  of  two  kinds. 

is  of  two  kinds : 

1.  Original ;  and, 

2.  Appellate. 

Legislation  S  75.  1.  Enacted  March  11,  1873, 
as  §  84.   and  tlien  aiiplied  to  countv  coni'ts. 

3.  Amended  by  Code  Amdts.  1880,  p.  28,  (1) 
renumbering  the  section  §  75,  and  (2)  changing 
the  words   "this   court"   to   "the  superior  courts." 

3.  Repeal  by  Stats.  1901,  p.  119;  unconstitu- 
tional.     See  note  ante,  §  5. 

Jurisdiction,  defined.  While  jurisdiction 
has  been  detined  to  be  the  power  to  hear 
and  determine  (Hickman  v.  O'Neal,  10  Cal. 
292;  Central  Pacific  R.  R.  Co.  v.  Board  of 

§  76.  Original  jurisdiction.  The  superior  courts  sliall  have  original  juris- 
diction : 

1.  In  all  cases  in  equity; 

2.  In  all  civil  actions  in  which  the  subject  of  litigation  is  not  capable  of 
pecuniary  estimation ; 

3.  In  all  cases  at  law  which  involve  the  title  or  possession  of  real  property. 
or  the  legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine,  and  in 
all  other  cases  in  which  the  demand,  exclusive  of  interest  or  the  value  of  the 
property  in  controversy,  amounts  to  three  hundred  dollars. 

4.  Of  actions  of  forcible  entry  and  detainer,  of  proceedings  in  insolvency, 
of  actions  to  prevent  or  abate  a  nuisance,  of  all  matters  of  prolate,  of 
divorce  and  for  annulment  of  marriage,  and  of  all  such  special  cases  ami  pro- 
ceedings as  are  not  otherwise  provided  for. 

5.  In  all  criminal  cases  amounting  to  felony,  and  eases  of  misdemeanor 
not  otherwise  provided  for.  Said  courts  shall  have  the  power  of  naturaliza- 
tion, and  to  issue  papers  therefor.  Said  courts  and  their  judges,  or  any  of 
them,  shall  have  power  to  issue  writs  of  mandamus,  certiorari,  prohibition, 
quo  warranto,  and  of  habeas  corpus  on  petition  by  or  on  behalf  of  any  per- 
son in  actual  custod}^  in  their  respective  counties.  Injunctions  and  writs  of 
prohibition  may  be  issued  and  served  on  legal  holidays  and  non-judicial  days. 

actions  for  relief  formerly  given  in  courts  of 
equity;  2.  To  all  civil  actions  in  which  the  sub- 
jeet  of  litigation  is  not  capable  of  pecuniary  esti- 
mation ;  3.  To  all  civil  actions  (except  actions  of 
forcible  entry  and  detainer)  in  which  the  subject 
of  litigation  is  capable  of  pecuniary  estimation, 
which  involve  the  title  or  possession  of  real 
estate,  or  the  legality  of  any  ta.x,  impost,  assess- 
ment, toll,  or  municipal  fine,  or  in  which  the 
demand,  exclusive  of  interest,  or  the  value  of  the 
property  in  controversy,  amounts  to  three  hun- 
dred dollars;  4.  To  all  special  proceedings  not 
within  the  jurisdiction  of  the  county  and  probate 
courts,  as  defined  in  this  code;  5.  To  the  issuance 
of  writs  of  mandate,  review,  prohibition,  habeas 
corpus,  and  all  writs  necessary  to  the  exercise  of 


Jurisdiction  of  superior  court.  See  Const.,  art. 
vi,  §  5. 

Jurisdiction  in  eminent  domain.  See  post, 
§  1243. 

Venue  of  actions.   Post,  §§  392  et  seq. 

Nuisance,    Post,  §  731. 

Act  conferring  upon  superior  judges  powers  of 
probate,  district,  and  county  judges.  See  Stats. 
1880,   p.   23    (Bancroft  ed.,   p.   115). 

Legislation  §  76.  1.  Added  by  Code  Amdts. 
18SO,  p.  28;  based  on  original  code  §§57,  85, 
defining  the  respective  jurisdiction  of  the  district 
courts  and  the  county  courts  created  by  Const. 
1849.  Original  code  §  57  read:  "The  jurisdiction 
of  the  district  courts  extends;  1.  To  all  civil 
1  Fair. — 4 


§76 


SUPERIOR  COURTS. 


50 


its  powers;  6.  To  the  trial  of  all  indictments  for 
treason,  misprision  of  treason,  murder,  and  man- 
slaughter." Original  code  §  85  read :  "Its  original 
jurisdiction  extends:  1.  To  actions  to  prevent  or 
abate  a  nuisance;  2.  To  actions  of  forcible  entry 
and  detainer;  3.  To  proceedings  in  insolvency; 
4.  To  all  special  cases  or  proceedings  in  vi^hich 
the  law  giving  the  remedy  or  authorizing  the  pro- 
ceedings confers  the  jurisdiction  upon  it;  5.  To 
the  issuance  of  writs  of  mandate,  review,  prohi- 
bition, habeas  corpus,  and  all  writs  necessary  to 
the  exercise  of  its  powers;  6.  To  inquire,  by  the 
intervention  of  a  grand  jury,  of  all  public  offenses 
committed  or  triable  in  the  county;  7.  I'o  the 
trial  of  all  indictments,  except  for  treason,  mis- 
prision of  treason,  murder,  and  manslaughter." 

2.  Repeal  by  Stats.  1901,  p.  119;  unconstitu- 
tional.     See  note  ante,  §  5. 

The  original  §  76  related  to  the  duration  of 
the  terms  of  the  district  courts. 

Original  jurisdiction.  Defining  the  ju- 
risdiction of  a  court  limits  it  (Ex  parte 
Attorney-General,  1  Cal.  85),  but  the  grant 
of  original  jurisdiction,  without  words  of 
exclusion,  does  not  deprive  other  courts 
of  concurrent  jurisdiction.  Courtwright  v. 
Bear  River  etc.  Mining  Co.,  30  Cal.  573; 
Willis  V.  Farley,  24  Cal.  490;  Stoppelkamp 
V.  Mangeot,  42  Cal.  316;  Rosenberg  v. 
Frank,  58  Cal.  387;  Learned  v.  Castle,  67 
Cal.  41;  7  Pac.  34.  Thus,  where  jurisdic- 
tion is  conferred  on  a  justice's  court  in 
certain  eases,  the  district  court  is  not  de- 
prived of  jurisdiction  in  those  cases  where 
the  amount  in  controversy  is  within  its  ju- 
risdiction. Hicks  V.  Bell,  3  Cal.  219;  Yolo 
County  V.  Sacramento,  36  Cal.  193;  Rosen- 
berg V.  Frank,  58  Cal.  387.  Where  juris- 
diction is  conferred  by  the  constitution  on 
courts  of  general  jurisdiction,  it  cannot  be 
taken  away  by  statute.  Hicks  v.  Bell,  3 
Cal.  219;  Fitzgerald  v.  Urton,  4  Cal.  233; 
Caulfield  v.  Stevens,  28  Cal.  118;  Court- 
wright V.  Bear  River  etc.  Mining  Co.,  30 
Cal.  573;  Yolo  County  v.  Sacramento,  36 
Cal.  193;  Stoppelkamp  v.  Mangeot,  42  Cal. 
316. 

Equitable  jurisdiction.  Original  juris- 
diction over  suits  in  ecjuity  is  conferred  by 
the  constitution,  and  any  act  of  the  legis- 
lature seeking  to  take  away  that  jurisdic- 
tion, or  transfer  it  to  another  court,  is 
unconstitutional.  Willis  v.  Farley,  24  Cal. 
490;  and  see  Wilson  v.  Roach,  4  Cal.  362; 
Clarke  v.  Perry,  5  Cal.  58;  63  Am.  Dec.  82; 
Griggs  V.  Clark,  23  Cal.  427.  The  court, 
while  keeping  within  the  rules  and  princi- 
ples upon  which  equitable  jurisdiction  is 
founded,  will  adapt  and  apply  its  jurisdic- 
tion to  such  new  suits  in  equity  as  may 
arise  (Dougherty  v.  Creary,  30  Cal.  290;  89 
Am.  Dec.  116;  and  see  Aldrich  v.  Willis,  55 
Cal.  81);  and,  having  the  same  power  in 
suits  in  equity  as  the  court  of  chancery 
had,  it  will  set  aside  a  judgment  for  fraud 
and  collusion  (Sanford  v.  Head,  5  Cal. 
297),  appoint  a  master  to  execute  a  deed 
for  a  deceased  sheriff  (People  v.  Boring, 
8  Cal.  406;  68  Am.  Dec.  331),  compel 
the  surrender  and  cancellation  of  papers 
(Lewis  V.  Tobias,  10  Cal.  574),  complete 
the  foreclosure  of  a  mortgage  after  the 
death  of  the  mortgagee  (Belloc  v.  Rogers, 


9  Cal.  123),  settle  partnership  accounts 
(Griggs  V.  Clark,  23  Cal.  427),  prevent,  by 
injunction,  irreparable  injury  (Lewis  v. 
Tobias,  10  Cal.  574;  Pixley  v.  Huggins,  15 
Cal.  127),  construe  the  will  of  a  testator 
after  it  had  been  admitted  to  probate 
(Rosenberg  V.  Frank,  58  Cal.  387;  Williams 
V.  W^illiams,  73  Cal.  99;  14  Pac.  394;  Sid- 
dall  V.  Harrison,  73  Cal.  560;  15  Pac.  130; 
McDaniel  v.  Pattison,  98  Cal.  86;  27  Pac. 
651;  32  Pac.  805);  but  it  should  never  en- 
tertain a  suit  to  construe  a  will  that  has 
been  probated,  except  where  there  is  some 
special  reason  for  seeking  its  interpreta- 
tion. Siddall  V.  Harrison,  73  Cal.  560;  15 
Pac.  130.  Testamentary  and  probate  mat- 
ters are  not  exclusively  under  the  jurisdic- 
tion of  the  probate  court;  most  of  the 
jjowers  of  the  probate  court  belong  pecu- 
liarly and  originally  to  a  court  of  chancery, 
and  courts  of  equity  still  retain  jurisdic- 
tion. Clarke  v.  Perry,  5  Cal.  58;  63  Am. 
Dec.  82;  Deck  v.  Gerke,  12  Cal.  433;  73 
Am.  Dec.  555;  Brodrib  v.  Brodrib,  56  Cal. 
563;  Rosenberg  v.  Frank,  .58  Cal.  387;  Wil- 
son V.  Roach,  4  Cal.  362.  In  all  cases 
where  there  are  peculiar  circumstances  of 
embarrassment,  the  superior  court  will 
assume  jurisdiction,  in  probate  matters,  to 
I^revent  waste,  delay,  and  expense,  and 
thus  conclude  the  action  without  vexatious 
litigation  (Deck  v.  Gerke,  12  Cal.  433;  73 
Am.  Dec.  555) ;  and  a  guardian's  account 
may  be  opened  by  a  court  of  equity,  after 
approval  by  the  probate  court  (Brodrib  v, 
Brodrib,  56  Cal.  563);  and  where  the  pow- 
ers of  the  probate  court  are  inadequate  to 
do  justice,  a  court  of  equity  alone  can  and 
will  afford  relief;  but  it  cannot  go  into  an 
accounting  of  a  copartnership,  nor  deter- 
mine the  ownership  of  shares  of  stock  not 
yet  a  part  of  the  estate.  Raisch  v.  Warren, 
18  Cal.  App.  655;  124  Pac.  95. 

Prohibition.  The  writ  does  not  lie  to 
restrain  the  prosecution  of  an  action  by 
citj'  authorities  to  condemn  a  right  of  way 
for  public  purposes.  Bishop  v.  Superior 
Court,  87  Cal.  226;  25  Pac.  435;  Pacific 
Railway  Co.  v.  Wade,  91  Cal.  449;  25  Am. 
St.  Rep.  201;  13  L.  R.  A.  754;  27  Pac.  768. 

Injunction.  One  court  has  no  power  to 
interfere  with  the  judgments  and  decrees 
of  another  court  of  concurrent  jurisdic- 
tion, unless  the  latter  court,  by  reason  of 
want  of  jurisdiction,  is  unable  to  afford  re- 
lief (Anthony  v.  Dunlap,  S  Cal.  26;  Revalk 
V.  Kraemer,  S  Cal.  66;  68  Am.  Dec.  304; 
Chipman  v.  Hibbard,  8  Cal.  268;  Phelan  v. 
Smith,  8  Cal.  520;  Gorham  v.  Toomev,  9 
Cal.  77;  Uhlf elder  v.  Levy,  9  Cal.  607; 
Hockstacker  v.  Levy,  11  Cal.  76;  Crowley 
V.  Davis,  37  Cal.  268;  Flaherty  v.  Kelly,  51 
Cal.  145;  Porter  v.  Garrissino,  51  Cal.  559; 
Wilson  V.  Baker,  64  Cal.  475;  2  Pac.  253; 
Buell  V.  San  Francisco  Sav.  Union,  63  Cal. 
292;  4  Pac.  14):  a  state  court  cannot 
enjoin  proceedings  in  a  Federal  court 
(Phelan  v.  Smith,  8  Cal.  520),  nor  can  one 
superior  court  restrain   another  from  exe; 


51 


ORIGINAL   JURISDICTION. 


§76 


cuting  its  orders  and  decrees.  Kickctt  v. 
Johnson,  8  Cal.  'M;  Kevalk  v.  Kraoiner,  8 
Cal.  66;  68  Am.  Dec.  3U4;  Flaherty  v. 
Kelly,  51  Cal.  145;  Judson  v.  Porter,  51 
Cal.  562;  Wavmire  v.  San  Francisco  etc. 
Ry.  Co.,  112  Cal.  646;  44  Pac.  1US6.  This 
rule  is  not  based  on  the  personal  rights  of 
the  parties  which  they  can  waive,  but 
upon  the  rights  of  courts  of  co-ordinate  ju- 
risdiction, rhlfelder  v.  Levy,  9  Cal.  6U7. 
"With  respect  to  jurisdiction,  the  sujjerior 
courts  of  two  different  counties  of  the 
state  stand  on  the  same  footing.  Kaisch  v. 
Warren,  18  Cal.  App.  655;'  124  Pac.  95. 
The  courts  of  this  state  cannot  restrain 
persons  within  the  state  from  prosecuting 
pending  actions  in  a  foreigu  or  domestic 
court,  except  to  prevent  a  multiplicity  of 
suits  (Spreckels  v.  Hawaiian  Commercial 
etc.  Co.,  117  Cal.  377;  49  Pac.  353);  but 
the  rule  that  one  court  will  not  restrain 
another  does  not  extend  to  actions  re- 
straining sales  of  land  under  execution,  as 
such  actions  are  not  against  the  court 
(Pixley  V.  Huggins,  15  Cal.  127);  nor  does 
this  rule  extend  to  proceedings  which,  by 
law,  are  required  to  be  brought  in  a  par- 
ticular county;  for  if  brought  in  the  wrong 
county,  the  court  has  no  jurisdiction.  L'hl- 
felder  v.  Levy,  9  Cal.  607.  Proceedings  to 
restrain  execution  should  be  instituted  in 
the  court  rendering  the  judgment.  Crow- 
lev  V.  Davis,  37  Cal.  268;  Wilson  v.  Baker, 
64  Cal.  475;  2  Pac.  253;  Buell  v.  San  Fran- 
cisco Savings  Union,  65  Cal.  292;  4  Pac. 
14;  Wavmire  v.  San  Francisco  etc.  Rv.  Co., 
112  Cal.''646;  44Pae.  1086. 

Title  to  and  possession  of  real  estate. 
The  superior  court  has  original  jurisdic- 
tion of  all  questions  pt-rtaiuing  to  the  title 
to  or  the  possession  of  real  pro]iorty;  and, 
having  jurisdiction  of  the  parties  in  an  ap- 
peal from  a  justice's  court,  may  properly 
try  an  issue  as  to  the  right  of  possession 
of  land.  Hart  v.  Carnall-Hopkins  Co.,  103 
Cal.  132;  37  Pac.  196.  Where  the  right  of 
recovery  depends  upon  whether  the  de- 
fendant had  a  defective  or  a  good  title  to 
land,  the  case  in\olves  title  to  land,  and 
the  superior  court  has  jurisdiction.  Coper- 
tini  V.  Oppermann,  76  Cal.  181;  18  Pac. 
256. 

Tax,  impost,  assessment,  etc.  The  supe- 
rior court  has  jurisdiction  in  cases  involv- 
ing less  than  three  hundred  dollars,  where 
the  legality  of  a  tax,  impost,  assessment, 
toll,  or  municipal  fine  is  involved.  Williams 
V.  Mecartney,  69  Cal.  556;  11  Pac.  186; 
Bottle  Mining  Co.  v.  Kern,  154  Cal.  96;  97 
Pac.  25.  An  action  to  recover  a  penalty 
for  exacting  illegal  toll  does  not,  however, 
give  the  court  jurisdiction,  regardless  of 
the  amount  involved  (Brown  v.  Rice,  53 
Cal.  489);  neither  does  an  action  to  re- 
cover unpaid  taxes  (People  v.  Mier,  24  Cal. 
61;  Bell  v.  Crippen,  28  Cal.  327;  People  v. 
Olvera,  43  Cal.  492) ;  but  where  the  action 
is  for  the  purpose  of  enforcing  a  tax  lien 
by  sale  of  the  property,  it  is  an  equitable 


action,  and  the  superior  court  has  jurisdic- 
tion, reganlloKs  of  the  amount.  Pcoi)le  v. 
Mier,  24  Cal.  61;  People  v.  Olvera,  43  Cal. 
492;  Mahlstadt  v.  Blanc,  34  Cal.  577.  An 
action  against  an  assessor  for  a  wrongful 
and  malicious  act  is  not  within  the  juris- 
diction of  the  superior  court,  unless  the 
amount  involved  is  three  hundred  dollars. 
Perkins  v.  Ralls,  71  Cal.  87;  11  Pac.  860. 

Amount  in  controversy.  Jurisdiction  is 
determined  by  the  amount  for  which  judg- 
ment is  asked,  and  not  by  the  averment  of 
damage.  Sanborn  v.  Superior  Court,  60 
Cal.  425.  The  ad  damnum  clause  is  the 
test  of  the  jurisdiction.  Maxfield  v.  .John- 
son, 30  Cal.  545;  Greenbaum  v.  Martinez, 
86  Cal.  459,  461;  25  Pac.  12.  The  demand 
of  the  complaint,  regardless  of  the  find- 
ing, is  the  test  of  jurisdiction  for  the 
value  of  property  claimed.  J.  Dewing  Co. 
v.  Thom].son,  19  Cal.  App.  85;  124  Pac. 
1035.  While  the  amount  claimed  by  the 
plaintiff  in  the  suit  is  the  test  of  the  juris- 
diction of  the  court  (Solomon  v.  Reese,  34 
Cal.  28;  Tulare  v.  Hevren,  126  Cal.  226;  58 
Pac.  530),  yet  it  does  not  conclude  that 
question,  regardless  of  the  allegations  upon 
which  the  liability  is  founded.  Lchnhardt 
V.  .Jennings,  119  Cal.  192;  48  Pac.  56;  51 
Pac.  155.  Costs  constitute  no  part  of  the 
amount  in  controversy,  and  are  not  in- 
cluded for  the  purpose  of  making  the 
jurisdictional  amount.  Maxfield  v.  John- 
son, 30  Cal.  545;  Zabriskie  v.  Torrev,  20 
Cal.  173;  Votan  v.  Reese,  20  Cal.  89.  '  The 
superior  court  has  no  jurisdiction  of  an 
action  upon  a  note  for  two  hundred  dol- 
lars, though  the  principal  and  interest  ex- 
cee<l  the  jurisdictional  amount.  Gallagher 
v.  McGraw,  132  Cal.  601;  64  Pac.  lOSO. 
The  settled  rule  is,  that  the  amount  sued 
for,  exclusive  of  interest,  is  the  test  of  ju- 
risdiction in  all  cases  where  actions  are 
brought  to  recover  money.  Dashiell  v. 
Slingerland,  60  Cal.  653;  Christian  v.  Supe- 
rior Court,  122  Cal.  117;  54  Pac.  518;  Howe 
V.  Halsev,  6  Cal.  Unrep.  148;  54  Pac.  748; 
Gallagher  v.  McGraw,  132  Cal.  601;  64 
Pac.  1080.  Thus,  the  superior  court  has 
not  jurisdiction,  where  the  claims  do  not 
amount  to  three  hundred  dollars,  in  an  ac- 
tion for  a  money  judgment  (Reeg  v.  Mc- 
Arthur,  17  Cal.  App.  203;  19  Pac.  105);  nor 
in  an  action  for  damages  for  injury  to 
lanil,  in  a  sum  less  than  three  hundred  dol- 
lars (Stewart  v.  Birchfield,  15  Cal.  App. 
378;  14  Pac.  999);  and  an  action  to  fore- 
close a  mechanic's  lien,  for  an  amount  less 
than  three  hundred  dollars,  must  show  a 
substantial  compliance  with  the  statute 
creating  the  lieu  (Davis  v.  Treacy,  S  Cal. 
App.  395;  97  Pac.  78);  but  there  are  cases 
where  the  court  has  jurisdiction,  regard- 
less of  the  amount  involved  (Bailey  v. 
Sloan,  65  Cal.  3S7;  4  Pac.  349;  Lord  v. 
Thomas,  3  Cal.  Unrep.  424;  27  Pac.  410); 
as,  where  the  action  puts  in  issue  the  title 
to  real  estate.  Randolph  v.  Kraemer.  106 
Cal.  199;  39  Pac.  533.     If  the  plaintiff,  by 


§76 


SUPERIOR  COURTS. 


52 


mistake,  alleges  an  amount  which  gives 
the  court  jurisdiction,  the  subsequent  dis- 
covery of  the  error  does  not  deprive  the 
court  of  jurisdiction.  Rodley  v.  Currey, 
120  Cal.  541;  52  Pac.  999.  The  several  lia- 
bilities of  different  defendants  cannot  be 
combiued  to  give  jurisdiction  (Thomas  v. 
Anderson,  58  Cal.  99;  Bailey  v.  81oane,  65 
Cal.  387;  4  Pac.  349;  Galloway  v.  Jones,  13 
Pac.  712;  Derby  v.  Stevens,  64  Cal.  287; 
30  Pac.  S20);  and  parties  having  separate 
claims,  each  under  three  hundred  dollars, 
but  no  joint  interest  in  the  aggregate,  can- 
not, by  joinder  of  their  claim,  in  one  action, 
nonfer  jurisdiction  on  the  superior  court. 
Winrod  v.  Wolters,  141  Cal.  399,  403;  74 
Pac.  1037.  Thus,  the  court  has  no  jurisdic- 
tion in  an  action  to  recover  from  each  of 
several  stockholders  of  a  corporation  his 
proportion  of  a  debt,  where  the  amount 
sued  for  is  less  than  three  hundred  dollars, 
though  the  aggregate  amount  sought  is 
more  than  that  sum  (Evans  v.  Bailey,  2 
Cal.  Unrep.  457;  6  Pac.  428;  Derby  v.  Stev- 
ens, 64  Cal.  287;  30  Pac.  820);  but  where 
the  several  liability  of  sureties  is  less  than 
the  jurisdictional  amount,  the  superior 
court  has  jurisdiction.  Moore  v.  MeSleeper, 
102  Cal.  277;  36  Pac.  593.  Where  the  court 
renders  a  judgment  within  its  jurisdiction, 
the  fact  that  the  complaint  prayed  a  re- 
covery in  excess  does  not  affect  the  juris- 
diction. Eeed  v.  Calderwood,  22  Cal.  463. 
If  the  jurisdictional  amount  is  pleaded  in 
the  complaint,  the  defendant  may  set  up 
as  a  counterclaim  a  demand  arising  upon  a 
contract,  although  it  is  insufficient  in 
amount  to  give  the  court  jurisdiction 
(Freeman  v.  Seitz,  126  Cal.  291;  58  Pac. 
690);  but  where  the  counterclaim  so  set  up 
is  less  than  the  jurisdictional  amount,  and 
shows  that  the  plaintiff's  action  is  un- 
founded, the  defendant  is  not  entitled  to 
judsment  on  his  counterclaim.  Griswold 
v.  Pieratt,  110  Cal.  259;  42  Pac.  820.  See 
also  note  ante,  §  52. 

Insolvency.  The  state  courts  have  ju- 
risdiction of  an  action  prosecuted  by 
an  assignee,  appointed  under  the  United 
States  Bankruptcy  Act,  to  recover  the 
assets  of  a  bankrupt  (Dambmann  v.  White, 
48  Cal.  439);  and  the  authority  of  an 
assignee,  under  the  state  insolvent  act,  to 
maintain  such  an  action  cannot  be  col- 
laterally attacked.  Fitzgerald  v.  Neustadt, 
91  Cal.  600;  27  Pac.  936. 

In  probate  proceedings.  The  probate 
jurisdiction  of  the  superior  court  is  sepa- 
rate anrl  distinct  from  its  jurisdiction  in 
ordinarv  civil  actions  (Guardianship  of 
.Allgier,"  65  Cal.  228;  3  Pac.  849;  Estate  of 
Huilson,  63  Cal.  454);  but  most  of  its  gen- 
eral powers  belong  peculiarly  and  origi- 
nally to  the  court  of  chancerv.  Clarke  v. 
Perry,  5  Cal.  58;  63  Am.  Dec.  82.  While 
probate  courts  are  to  be  regarded  as  courts 
of  limited  and  inferior  jurisdiction  (Town- 
send  V.  Gordon,  19  Cal.  188),  yet,  in  pro- 
bate   matters,    they    are    upon    the    same 


footing  with  courts  of  superior  common- 
law  jurisdiction.  Irwin  v.  Scriber,  IS  Cal. 
499.  The  grant  of  jurisdiction  in  probate 
matters  is  part  of  the  general  jurisdic- 
tion of  the  superior  court  (Burris  v.  Ken- 
nedy, 108  Cal..  331;  41  Pac.  458);  and 
where  there  are  two  or  more  judges  of 
the  superior  court,  each  judge  has  juris- 
diction in  probate  matters.  Estate  of  Pear- 
sons, 113  Cal.  577;  45  Pac.  849,  1062.  In 
the  exercise  of  its  probate  ■  powers,  the 
jurisdiction  of  the  superior  court  is  special 
and  limited  (Smith  v.  Westerfield,  88  Cal. 
374;  26  Pac.  2i)6;  Grimes's  Estate  v.  Norris, 
6  Cal.  621;  65  Am.  Dec.  545);  and  it  has 
only  such  powers  as  are  given  by  statute, 
with  the  incidental  power  necessary  to  the 
exercise  of  fhe  power  conferred  (Strong's 
Estate,  119  Cal.  663;  51  Pac.  1078;  Rvder's 
Estate,  141  Cal.  366;  74  Pac.  993);  but  the 
jurisdiction  conferred  upon  it  by  the  con- 
stitution cannot  be  limited  by  statute. 
Heydenfeldt  v.  .Jacobs,  107  Cal.  373;  40 
Pac.  492.  The  statute,  however,  does  not 
confer  on  the  su})erior  court  jurisdiction 
of  all  matters  relating  to  estates  of  de- 
ceased persons.  Bush  v.  Lindsey,  44  Cal. 
121.  It  has  no  power  to  determine  suits 
between  heirs  or  devisees  and  strangers  as 
to  the  title  to  property  in  probate  (Buck- 
ley v.  Superior  Court,  102  Cal.  6;  41  Am. 
St.  Eep.  135;  36  Pac.  360;  Evder's  Estate, 
141  Cal.  369;  74  Pac.  993;  Hevdenfeldt  v. 
.Jacobs,  107  Cal.  373;  40  Pac.  492),  except 
in  appropriate  proceedings,  and  under 
proper  pleadings,  in  the  manner  prescribed 
bv  the  code.  Reither  v.  Murdock,  135  Cal. 
197;  67  Pac.  784;  Estate  of  Heenev,  3  Cal. 
App.  548;  86  Pac.  842.  It  has  the  same 
jurisdiction  in  matters  of  probate  as  in 
suits  in  equity,  in  actions  at  law,  or  in  spe- 
cial proceedings  (Estate  of  Burton,  93  Cal. 
459;  29  Pac.  36),  and  has  jurisdiction  to 
try  and  determine  issues  of  fact  arising  in 
the  proceedings  before  it  (Keller  v.  De 
Franklin,  5  Cal.  432) ;  its  authority  to 
award  costs  comes  from  the  statute.  Henry 
V.  Superior  Court,  93  Cal.  569;  29  Pac.  230. 
The  probate  court  has  exclusive  jurisdic- 
tion to  settle  the  accounts  of  a  living 
guardian  (Allen  v.  Tiffanv,  53  Cal.  16; 
Anderson  v.  Fisk,  41  Cal.  3'08),  but  it  has 
no  jurisdiction  of  controversies  between  a 
guardian  and  his  ward,  after  the  estate 
has  been  expended  for  the  benefit  of  the 
ward,  and  he  has  become  of  age.  Guardian- 
ship of  Kincaid,  120  Cal.  203;  52  Pac.  492. 
Xor  has  it  equitable  jurisdiction  (Meyers 
V.  Farquharson,  46  Cal.  190;  Estate  of 
Clary,  112  Cal.  292;  44  Pac.  569),  although 
it  proceeds  in  accordance  with  the  princi- 
ples of  equity.  Estate  of  Clary,  112  Cal. 
292;  44  Pac.  569.  Nor  can  it  determine 
questions  of  title  to  a  homestead  (Davis  v. 
Caldwell,  12  Cal.  125);  nor  has  it  the 
requisite  machinery  to  trv  questions  of 
fraud  (Curtis  v.  Schell,  129  Cal.  208;  79 
Am.  St.  Rep.  107;  61  Pac.  951);  nor  can  it 
divide    a    homestead    between    the    widow 


53 


ORIGINAL   JURISDICTION, 


§76 


and  the  heirs  (Estate  of  Janios,  2.3  Cal. 
415),  althoiij,'h  it  lias  power  to  set  apart  a 
hoinestoud  for  the  use  of  tlie  family  (Rich 
V.  Tubbs,  41  t'al.  34),  but,  after  tlie  home- 
steail  has  been  set  apart,  it  has  no  .iuris- 
(liction  over  it  for  the  i)urpose  of  distril)U- 
tion  (Estate  of  (lilinore,  SI  Cal.  24U;  22 
Pac.  6.3.3),  nor  has  it  jurisdiction  to  try 
ail  verse  claims  to  the  homestead  (Estate 
of  Kimberly,  97  Cal.  2S1;  32  Pac.  234),  nor 
to  determine  the  rights  of  those  claiming 
adversely  to  the  estate  (Plass  v.  Plass,  121 
Cal.  13.3;  53  Pac.  14S),  nor  to  determine 
the  quality  of  the  title  to  the  pro]>erty 
which  it  distributes  (Estate  of  Dunn,  I\lyr. 
Prob.  122);  but  it  may  delay  the  final  de- 
cree until  the  rights  of  the  parties  can  be 
determined  in  another  forum.  Estate  of 
Burdick,  112  Cal.  387;  44  Pac.  734.  Nor 
has  the  probate  court  jurisdiction  to  in- 
quire into  the  consideration  or  valiility  or 
operation  of  a  deed  of  sejiaration  between 
a  testator  and  his  Avidow.  Corker  v. 
Corker,  S7  Cal.  643;  25  Pac.  922.  The 
court  which  granted'  administration  upon 
the  estate  of  a  person  supposed  to  be  de- 
ceased, but  w^ho  afterwards  appears,  has 
power  to  vacate  the  order  and  annul  the 
proceedings  (Stevenson  v.  Superior  Court, 
62  Cal.  60),  but  it  has  no  power,  after  the 
vacation  of  probate  proceedings,  to  make 
an'v  order  in  the  ])renuses.  Costa  v.  Supe- 
rior Court,  137  Cal.  79;  69  Pac.  840. 

Criminal  cases.  The  superior  court  has 
original  jurisdiction  in  habeas  corpus 
cases,  and  in  all  criminal  cases  amount- 
ing to  felony  (Ex  parte  Williams,  87 
Cal.  78;  24  Pac.  6U2;  25  Pac.  248;  Smith 
V.  Hill,  89  Cal.  122;  26  Pac.  644;  Peo- 
ple V.  Colby,  54  Cal.  184),  and  in  cases 
of  misdemeanor  not  otherwise  provided 
for.  In  re  Grosbois,  109  Cal.  445;  42  Pac. 
444;  Green  v.  Superior  Court,  78  Cal.  556; 
21  Pac.  307,  541;  People  v.  Joselvn.  SO  Cal. 
544;  22  Pac.  217;  In  re  Marks,  4o  Cal.  199; 
People  V.  Lawrence,  82  Cal.  182;  22  Pac. 
1120;  Ex  parte  Wallingford,  60  Cal.  103; 
Gafiford  v.  Bush,  60  Cal.  149;  Ex  parte 
Noble,  96  Cal.  362;  31  Pac.  224.  The  legis- 
lature has  "not  otherwise  provided  for" 
the  following  misdenieanors,  and  the  su- 
perior court  has  original  jurisdiction  in 
such  cases:  1.  Assaults  or  batteries  com- 
mitted upon  public  officers  in  the  dis- 
charge of  their  duties;  2.  Willful  injuries 
to  property;  and  3.  When  the  punishment 
is  by  fine  exceeding  five  hundred  dollars, 
or  by  imjirisonment  exceeding  six  months, 
or  both.  In  re  Grosbois,  109  Cal.  445;  42 
Pac.  444;  Thomas  v.  Justice's  Court,  80 
Cal.  40;  22  Pac.  80.  The  superior  court 
also  has  jurisdiction  of  crimes  which  may 
be  punishable  either  as  a  felony  or  a  mis- 
demeanor; such  as  obtaining  money  by 
false  pretenses  (Ex  parte  Neustadt,  82 
Cal.  273;  23  Pac.  124),  assault  by  means 
likely  to  produce  great  bodilv  injury  (Peo- 
ple V.  Fahey,  64  Cal.  342;  30  Pac.  1030).  a 
public  nuisance  injurious  to  health  (Appli- 


cation of  Kurtz,  68  Cal.  412;  9  Pac.  449); 
but  the  jiresentment  of  a  misdemeanor,  of 
which  the  justice's  court  has  jurisdiction 
by  indictment,  does  not  give  the  superior 
court  jurisdiction.  Ex  jiartc  Wallingford, 
60  Cal.  103;  Green  v.  Superior  Court,  78 
Cal.  556;  21  Pac.  307,  541.  The  jurisdic- 
tion of  the  su})erior  court  over  a  criminal 
case  is  not  dependent  upon  a  compliance 
with  the  provisions  of  §  925  of  the  Penal 
Code.  People  v.  Delhantie,  163  Cal.  461; 
125  Pac.  1066. 

Original  writs.  Mandamus.  The  superior 
court,  and  a  judge  thereof,  has  original 
jurisdiction  to  issue  mandamus,  certiorari, 
]irohibition,  quo  warranto,  and  habeas  cor- 
j)us  (Perry  v.  Ames,  26  Cal.  372;  Reynolds 
V.  County  Court,  47  Cal.  604;  Spring  Val- 
ley Water  Works  v.  Bryant,  52  Cal.  132; 
Garretson  v.  Board  of  Supervisors,  61  Cal. 
54),  and  may  issue  such  writs  to  run  out 
of  the  county  in  which  the  court  is  held. 
Kings  County  v.  Johnson,  104  Cal.  198;  37 
Pac.  870. 

Quo  warranto.  The  mode  of  proceeding 
in  quo  warranto  has  not,  in  modern  times, 
been  very  uniform;  but  in  this  state,  if  the 
proper  parties  are  before  the  court,,  the 
action  may  be  brought  in  the  name  of  the 
attorney-general.  People  y.  Dashaway 
Ass'u,  84^  Cal.  114;  12  L.  R.  A.  117;  24 
Pac.  277. 

Habeas  corpus.  The  superior  court  has 
jurisdiction,  in  habeas  corpus,  to  test  the 
legality  of  the  imprisonment  of  one  held 
under  authority  of  the  Avarrant  of  the  gov- 
ernor of  the  state  for  the  purposes  of 
extradition  (In  re  Robb,  64  Cal.  431;  1 
Pac.  881;  In  re  Manchester,  5  Cal.  237) ;  but 
the  only  thing  that  can  be  inquired  into  is, 
whether  the  prisoner  is  projierly  detained, 
under  the  constitution  'and  laws  (In  re 
Manchester,  5  Cal.  237);  and  the  judges  of 
the  superior  court  have  the  same  authority 
as  the  supreme  court  would  have,  under  a 
writ  issued  bj'  the  supreme  court,  and 
made  returnable  before  a  judge  of  the  su- 
})erior  court.  People  v.  Booker,  51  Cal. 
317;  Ex  parte  Marks,  49  Cal.  680. 

CODE  COMMISSIONERS'  NOTE.  1.  Construc- 
tion of  this  section.  Section  (i  of  article  vi  of 
•  the  onstitution,  which  defines  the  .iurisdiction  of 
the  district  court,  follows  the  language  (so  far 
as  civil  jurisdiction  is  concerned)  of  §  4  of  the 
same  article  relating  to  the  jurisdiction  of  the  su- 
preme court,  and  it  must,  from  the  very  nature 
of  things,  receive  the  same  construction.  AVe 
would  look  in  vain,  giving  to  its  terms  their  ordi- 
nary import,  for  any  power  or  autliority  over  that 
large  class  of  cases  in  which  the  subject  of  liti- 
gation is  incapable  of  pecuniary  estimation,  and 
which  did  not  fall  within  the  jurisdiction  of 
courts  of  eouity,  or  over  that  other  class  known 
as  special  proceedings,  or  for  the  power  to  issue 
writs  of  certiorari,  mandamus,  or  prohibition. 
The  truth  is,  that  the  amendments  of  1802.  in  so 
far  as  they  attempt  to  lix  and  define  the  juris- 
diction of  the  several  courts  of  record,  were  so 
framed  that  to  have  given  their  terms  any  fair  or 
reasonable  construction,  would  have  emasculated 
our  whole  judiciil  system.  To  support  this  propo- 
sition we  need  but  refer  the  lawyer  to  the  terms 
of  those  amendments,  and  invoke  a  comparison 
between  the  power  there  conferred  and  the  power 
now  exercised  by  our  courts  of  record,  and  to  the 


§76 


SUPERIOR  COURTS. 


54 


same  end  ■n-e  need  but  refer  the  layman  to  the 
case  of  Knowles  v.  Yates,  cited  and  quoted  from 
at  length  in  the  note  to  §  44,  [§  52,]  ante,  and  to 
the  able  and  elaborate  opinion  of  Justice  Rhodes, 
in  Courtwrighl  v.  Bear  River  etc.  Mining  Co.,  30 
Cal.  578.  In  the  latter  case,  said  the  learned  jus- 
tice, speaking  for  the  court:  "It  is  a  matter  of 
some  doubt  whether  that  article  [article  vi,  be- 
fore the  amendments]  deserved  the  commendation 
of  having  been  drawn  with  great  skill,  .  .  .  but 
there  is  less  question  that  the  same  cannot  be 
said  of  the  article  [article  vi]  as  it  now  stands." 
See  also  Perry  v.  Ames,  26  Cal.  383.  The  su- 
preme court,  "by  judicial  construction,  has  fixed 
the  limit  of  the  jurisdiction  of  the  different  courts. 
From  the  very  necessities  of  the  case  that  tribu- 
nal was  driven  to  the  adoption  of  the  broadest 
rules  of  constitutional  construction.  Indeed,  it 
may  well  be  doubted  whether  any  rule,  save  that 
of  "necessity  which  knows  no  law,"  could  have 
been  invoked  to  work  out  the  results  at  which 
our  courts  have  arrived.  We  have  referred  to 
these  matters  at  some  length  in  this  and  the  note 
to  §  44,  [§  52.]  ante,  in  order  to  present  the  in- 
herent difficulties  surrounding  the  subject,  and  to 
call  the  special  attention  of  the  profession  to  the 
questions   involved. 

2.  No  appellate  jurisdiction.  The  legislature 
has  no  power  lo  confer  appellate  jurisdiction  on 
district  courts.  Clary  v.  Hoagland.  6  Cal.  688; 
Townsend  v.  Brooks, "5  Cal.  52;  Caultield  v.  Hud- 
son, 3  Cal.  389;  Zander  v.  Coe,  5  Cal.  230.  The 
district  court  has  no  appellate  jurisdiction.  The 
legislature  cannot  provide  for  appeals  from  in- 
ferior courts  to  the  district  court.  People  v.  Per- 
alta,  3  Cal.  379;  Caulfield  v.  Hudson,  3  Cal.  389; 
Hernandes  v.  Simon,  3  Cal.  464;  Gray  v.  Schupp, 
4  Cal.  185;  Reed  v.  ]\IcCormick,  4  Cal.  342; 
Townsend  v.  Brooks,  5  Cal.  52.  Xo  appellate  ju- 
risdiction exists,  even  from  wrobate  courts.  Reed 
V.  McCormick,  4  Cal.  342;  Pond  v.  Pond,  10  Cal. 
495.  Xor  can  a  district  court  review  proceedings 
in  a  justice's  court,  if  the  error  complained  of 
might  have  been  corrected  by  an  appeal  to  the 
county  court.    Gray  v.  Schupp,  4  Cal.  185. 

3.  Admiralty  jurisdiction.  District  courts  have 
admiraltv  jurisdiction  pro  tanto  (post,  §§  813  et 
seq).    Averill  v.  The  Hartford,  2   Cal.   308. 

4.  Jurisdiction  of  mining  claims.  Although  ju- 
risdiction of  mining  claims  is  given  to  justices  of 
the  peace,  '.hat  of  the  district  court  remains  un- 
affected, if  the  amount  in  controversy  exceeds  two 
hundred  [now  three  hundred]  dollars.  Hicks  v. 
Bell,   3    Cal.   224. 

5.  Loses  jurisdiction  of  decided  cause  after  ad- 
journment for  term.  A  court  loses  all  power 
over  a  cause  upon  the  adjournment  of  the  term, 
and  cannot  disturb  its  judgments,  except  in  cases 
provided  bv  the  statute.  Suydam  v.  Pitcher,  4 
Cal.  280;  Whipley  v.  Dewey,   17   Cal.   314. 

6.  Jurisdiction  by  appearance.  An  appearance 
entered  by  attorney  is  a  good  and  sufficient  ap- 
pearance to  bind  the  party.  Such  appearance 
amounts  to  an  acknowledged  waiver  of  service. 
Suydam  v.  Pitcher,  4  Cal.  2  80. 

7.  Actions  to  abate  nuisance.  District  courts 
have  jurisdiction  in  actions  to  abate  nuisances. 
An  act  giving  jurisdiction  of  cases  of  nuisance 
to  the  county  court  cannot  avail  to  take  away  the 
jurisdiction  given  to  the  district  courts  by  the 
constitution.  Fitzgerald  v.  Urton,  4  Cal.  235. 
District  and  county  courts,  under  the  amended 
constitution,  have  concurrent  jurisdiction  in  _  ac- 
tions to  abate  nuisance.  Courtwright  v.  Bear  River 
etc.  Mining  Co.,  30  Cal.  576;  Yolo  County  v.  Sac- 
ramento, 36  Cal.  193.  An  action  to  abate  a  nui- 
sance is  a  case  in  equity,  and  the  district  court 
has  jurisdiction  thereof,  without  regard  to  the 
amount  in  controversy.  Courtwright  v.  Bear  River 
etc.  Mining  Co.,  30  Cal.  573.  And  county  courts 
have  concurrent  jurisdiction  in  these  cases.  People 
V.  Moore,  29  Cal.  427.  District  courts  have  ju- 
risdiction in  onses  of  nuisance,  and  because  an  act 
gives  jurisdiction  in  like  cases  to  the  county  court 
it  does  not  avail  to  take  away  the  jurisdiction  of 
the  district  court  in  these  matters.  Fitzgerald  v. 
Urton,  4  Cal.  235.  But  it  was  decided  that  county 
courts  did  not  have  jurisdiction  in  actions  to  aliate 
a  nuisance.  Parsons  v.  Tuolumne  County  Water 
Co.,  5  Cal.  43:  63  Am.  Dec.  76;  see,  however, 
People  V.  Day,  15  Cal.  91. 


8.  Forcible  entry  and  unlawful  detainer.  Dis- 
trict courts  have  no  jurisdiction  in  actions  of 
forcible  entry  and  unlawful  detainer.  Townsend 
v.  Brooks.  5  Cal.  52. 

9.  Removal  of  causes  from  one  district  to  an- 
other. The  district  court  is  a  court  of  general 
original  jurisdiction.  Its  process  is  coextensive 
with  the  state.  Causes  may  be  removed  from  one 
district  or  county  to  another  county  or  district 
in  the  manner  provided  by  statute.  But  this 
would  not  be  permitted  after  the  party  had  ap- 
peared and  answered  to  the  merits.  Reyes  v. 
Sanford,  5  Cal.  117. 

10.  Verity  of  records.  Correction  of  records. 
An  application  for  mandamus  was  made  to  compel 
a  district  judge  to  sign  what  was  alleged  by  ap- 
plicant as  a  true  bill  of  exceptions,  which  the 
judge  refused  to  sign.  The  judge,  in  answer, 
stated  he  did  sign  a  bill  of  exceptions,  which  he 
believed  to  be  correct.  Applicant  claims  the  right 
to  try  the  issue  by  a  jury.  Held,  such  issues 
could  not  be  tried  by  jury.  The  record  of  a  dis- 
trict court  cannot  be  corrected  by  the  verdict  of 
a  jury.  Courts  of  such  extended  jurisdiction  and 
grave  responsibility  as  the  district  courts  must  be 
trusted  as  to  the  fidelity  of  their  own  records 
People  V.  Judge  Tenth  Judicial  District.  9   Cal.  19 

11.  Cannot  restrain  courts  of  co-ordinate  juris 
diction.  District  courts  cannot  restrain  the  exe 
cution  of  the  judgments  or  orders  of  courts  of  co 
ordinate  jurisdiction.  All  such  proceedings  mus 
be  had  in  the  courts  having  control  of  such  judg 
ments.  Gorham  v.  Tooriiev,  9  Cal.  77;  see  also 
Uhlfelder  v.  Levy,  9  Cal.  607. 

12.  Chancery  supervision  over  and  control  of 
minors.  District  courts  have  the  same  control 
over  the  persons  of  minors,  as  well  as  their  estates, 
that  the  courts  of  chancery  in  England  possess. 
The  jurisdiction  is  conferred  by  the  constitution, 
and  cannot  be  divested  by  any  legislative  enact- 
ment.   Wilson  V.  Roach.  4  Cal.  366. 

13.  Issues  sent  up  formerly  from  probate  courts. 
Power  of  district  court  over  issues  sent  up  from 
probate  courts,  and  over  testamentary  and  pro- 
bate matters  generallv,  see  Pond  v.  Pond.  10  Cal. 
495;  Deck  v.  Gerke,"  12  Cal.  433;  73  Am.  Dec. 
555:  Hope  v.  Jones.  24  Cal.  89.  The  necessary 
provisions  for  trials  in  the  probate  court  are  now 
made. 

14.  Supervision  over  inferior  tribunals.  The 
general  power  of  supervision  over  inferior  tri- 
ijunals  which  pertains  to  the  court  of  king's  bench 
in  England  pertains  to  the  district  courts  of  this 
state.  Miliken  v.  Huber,  21  Cal.  169;  Gurnee  v. 
Maloney,  38  Cal.  85;   99  Am.  Dec.  352. 

15.  Action  for  charging  excessive  railroad  fare. 
Jurisdiction  of  district  court  in  certain  actions 
provided  for  by  statute ;  forfeitures  imposed  on 
railroad  company  for  charging  passengers  excess 
of  fare  (see  Stats.  1863,  p.  296).  Reed  v.  Om- 
nibus R.  R.  Co.,  33  Cal.  212;  Smith  v.  Omnibus 
R.  R.  Co..  36  Cal.  281. 

16.  District  court  to  enter  judgment  prescribed 
by  supreme  court.  When  the  district  court  is 
directed  by  the  supreme  court  to  enter  a  certain 
judgment,  its  duty  is  to  enter  a  judgment  in  con- 
formity with  the  order  of  the  supreme  court. 
Argenti  v.  Sawyer,  32  Cal.  414.  It  cannot  even 
add  interest  to  the  judgment  so  ordered.  Meyer 
V.  Kohn.  33  Cal.  484. 

17.  Judgment  of  district  court  to  meet  the  ex- 
igencies of  the  case.  District  courts  have  power, 
when  not  expressly  limited  by  the  constitution  or 
by  a  statute,  to  pronounce  such  judgment  as  the 
exigencies  of  each  case  require.  Stewart  v.  Levy, 
36  Cal.  160. 

18.  Court  to  direct  payment  of  fees  to  indigent 
witnesses  in  criminal  cases.  District  courts  may, 
in  a  criminal  case,  when  witness  is  poor  or  has 
come  from  another  county,  direct  the  county  treas- 
urer to  pay  the  witness  such  a  sum  as  the  court 
may  name.    Sargent  v.  Cavis,  36  Cal.  552. 

19.  Judgment  of  district  court,  only  void  when 
In  excess  of  jurisdiction.  When  the  district  court 
has  jurisdiction  of  the  person  of  the  defendant 
and  of  the  subject-matter  of  the  action,  its  judg- 
ment, no  matter  how  erroneous,  is  not  void.  A 
judgment  of  a  justice's  court  which  was  in  excess 
of  its  jurisdiction,  and  therefore  void,  was  ren- 
dered, and  the  district  court  rendered  a  judgment 


55 


ORIGINAL   JURISDICTION. 


§70 


founded  upon  the  judgment  rendrred  by  the  jus- 
tice of  the  peace.  Held:  that  thoui;h  the  jiulc- 
meut  of  thr  district  court  was  crroiioous,  yet  it 
was  not  viiid,  and  that  it  was  valid  ajraiust  a  col- 
lateral attack.     Muoro  v.  Martin,  .'iS  Cal.  4?.C,. 

20.  Stipulation  cannot  confer  jurisdiction.  See 
Wicks  V.  Ludwif,',  9  Cal.  173.  A  stipulation  by 
parties,  waivinir  all  objections  to  jurisdiction, 
cannot  confer  on  a  district  court  jurisdiction  to 
try  a  suit  in  one  county,  when  on  that  day.  by 
operation  of  law,  the  court  is  adjourned  in  that 
county  and  its  term  commenced  in  another  county 
of  that  district.    IJates  v.  Gage,  40  Cal.  183. 

21.  Jurisdiction  over  actions  for  usurpation  of 
office,  franchise,  etc.  Title  to  oflice  comes  from 
the  will  of  the  people  as  expressed  through  the 
ballot-box,  and  they  have  a  prerogative  right  to 
enforce  their  will,  when  it  has  been  so  expressed, 
by  excluding  usurpers,  and  jnitling  in  power  such 
as  have  been  chosen  by  themselves.  For  that 
purpose  the  attorney-general,  either  upon  his  own 
suggestion  or  upon  the  complaint  of  a  private 
party,  may  brin<'  an  action  against  any  person 
who  usurps,  intrudes  into,  or  unlawfully  holds 
or  exercises  any  public  office,  civil  or  military, 
or  any  franchise  within  the  state.  The  district 
court  has  jurisdiction  in  these  cases.  People  v. 
Holden,  28  Cal.  123.  See  also  County  Court  Ju- 
risdiction in  Contested  Elections. 

22.  Disposal  of  community  property  by  one 
district  court,  when  divorce  Tras  granted  in  an- 
other court.  Another  court  than  the  one  decree- 
ing a  divorce  may  acquire  jurisdiction  to  dispose 
of  the  community  property  if  it  be  otherwise 
competent.      De  Godey  v.  Godey,  39  Cal.  157. 

23.  Custody  of  children,  alimony,  etc.,  in  such 
a  case.  \\  here  a  wife  sued  for  divorce,  the 
judge  of  the  court  where  the  suit  was  pending 
had  no  jurisdiction,  "pending  the  action,  to  hear 
and  determine  in  the  district  court  of  .in  adjoin- 
ing county  of  the  same  district  an  application  by 
the  wife  for  an  allo\vance  pendente  lite,  and  for 
the  care  and  custody  of  the  children  of  the  mar- 
riage." Bennett  v.  Southard.  35  Cal.  691.  An 
order  for  alimony  and  for  the  custody  of  the 
children,  pendente  lite,  can  only  be  made  by  the 
court  in  which  the  action  for  divorce  is  pending. 
Id. 

24.  Supervision  over  decrees,  orders,  etc.,  of 
Inferior  tribunals.  Correction  of  decrees  f'-audu- 
lently  entered.  It  was  held  that  the  district 
judge,  whilst  sitting  as  in  an  eejuitj'  case,  is  pos- 
sessed of  all  the  powers  of  a  court  of  chancery. 
The  district  court,  being  a  court  of  general  juris- 
diction, can,  in  a  case  in  equity,  where  fraud  and 
collusion  are  charged  against  a  judge  in  entering 
an  order  or  decree,  review  the  same,  and  annul 
it  if  the  facts  justify  such  a  conclusion.  Unless 
a  court  of  general  jurisdiction  possessed  such  a 
power  over  limited  and  inferior  tribunals,  such  as 
probate  courts,  the  rights  of  heirs  and  orphans 
might  be  at  any  time  endangered  without  remedy. 
Sanford  v.  Head,  5  Cal.  297. 

25.  Fraud,  accident,  mistake,  etc.  The  juris- 
diction of  courts  of  equity  originally  embraced 
all  cases  involving  questions  of  fraud,  accident, 
or  confidence.  In  many  cases  of  this  sort,  courts 
of  common  law  have  for  a  long  time  exercised 
jurisdiction,  and  in  many  other  cases,  in  which 
anciently  no  such  remedy  was  allowed,  is  now  ex- 
panded so  as  to  reach  them  :  but  the  jurisdiction 
of  courts  of  equity  is  not  destroyed  or  impaired 
merely  because  courts  of  law  exercise  an  equitable 
jurisdiction  :  jurisdiction  in  such  cases  is  concur- 
rent.   People  V.   Houghtaling.   7   Cal.   348. 

26.  Suit  against  administrator.  It  was  held 
that  an  administrator  might  be  sued  in  the  dis- 
trict court  as  a  court  of  equity,  by  the  people,  to 
compel  him  to  pay  over  certain  moneys  which 
were  collected  by  the  intestate  as  a  tax-collector. 
See  People  v.  Houghtaling.  7  Cal.  348.  The  dis- 
trict court  has  no  jurisdiction  over  an  action 
against  an  administrator  when  he  attempts  to 
make  charges  a?'ainst  the  estate  for  expenses  in 
administering  thereon.  See  Gurnee  v.  Maloney, 
38    Cal.    85;    99    Am.   Dec.    352. 

27.  Jurisdiction  over  claims  against  estate  of  de- 
cedent. The  fact  that  a  claim  against  the  estate 
of  a  deceased  person  has  not  been  presented  to 
the  administrator  does  not  take  away  from  the  dis- 


trict court  jurisdiction  over  such  claim.  Hentsch 
V.  Porter,  10  Cal.  555;  see  Fallon  v.  liutler, 
21  Cal.  24;  Xl  Am.  Dec.  14(1.  commentinir  on  the 
cases  of  Ellissen  v.  Halleck,  6  Cal.  380,  and 
Falkner  v.  Folsom's  Exrg.,  6  Cal.  412;  see  also 
I'echaud  v.  Kinquci,  'J  1  Cal.  7t).  The  district 
court  has  no  jurisdiction  over  the  allowance  or 
aijportionment  of  tlie  commissions  of  the  executors 
and  administrators,  and  if  it  can  interfere  at  all 
with  the  decree  of  the  probate  court,  it'can  only 
do  so  as  a  court  of  chancery,  and  can  go  no 
further  than  to  set  aside  the  decree  on  the  ground 
of  fraud,  or  other  like  ground  of  equitable  inter- 
ference, and  leave  the  parties  to  make  another 
settlement  in  the  probate  court.  Searles  v.  Scott, 
14  Sm.  &  M.  (Miss.)  94;  Hope  v.  Jones.  24  Cal. 
89. 

28.  Foreclosure  of  mortgages  upon  estate  of  de- 
cedent. District  courts  have  jurisdiction  over 
an  action  for  the  foreclosure  of  mortgages  upon 
the  estates  of  decedents,  even  though  the  debt 
was  presented  as  a  claim  against  the  estate  to  the 
administrator  or  executor,  and  allowed  by  him 
and  also  by  the  probate  judge.  If  the  object 
sought  to  be  attained  is  to  subject  the  lands 
mortgaged  to  sale  for  the  satisfaction  of  the  debt, 
and  no  judgment  is  asked  to  bind  the  estate  or 
for  the  payment  of  any  moneys  out  of  the  estate 
(overruling  Ellissen  v.  Halleck.  6  Cal.  336,  and 
Falkner  v.  Folsom's  Exrs.,  6  (^Jal.  412).  Fallon 
V.  Butler,  21  Cal.  24;  31  Am.  Dec.  140;  see  also 
Pechaud  v.  Rinquet,  21  Cal.  76.  In  some  of  the 
earlier  cases  it  was  held  that  a  mortgage  cred- 
itor whose  claim  was  allowed  could  not  maintain 
an  action  in  the  district  court  for  the  foreclosure 
of  his  mortgage,  but  that  his  debt  must  abide  the 
administration  and  settlement  of  the  estate  under 
the  supervision  of  the  probate  court.  Ellissen  v. 
Halleck,  6  Cal.  392;  Falkner  v.  Folsom's  Exrs., 
6  Cal.  412.  But  the  doctrine  of  these  cases  in 
this  respect  may  be  said  to  have  been  disapproved 
by  the  court  in  its  later  decisions,  mainly,  if  not 
entirely,  on  the  ground  that  the  district  court 
had,  under  the  constitution  as  it  then  existed, 
original  jurisdiction  in  law  and  equity  in  all  cases 
where  the  amount  in  dispute  exceeded  two  hun- 
dred dollars,  exclusive  of  interest.  Belloc  v. 
Rogers,  9  Cal.  123;  Hentsch  v.  Porter,  10  Cal. 
559;  Fallon  v.  Butler,  21  Cal.  30;  81  Am.  Dec. 
140.  By  the  constitution  as  amended,  it  is  pro- 
vided that  th*  district  courts  shall  have  original 
jurisdiction  in  all  cases  in  equity.  Const.,  art. 
vi,  §  6.  The  foreclosure  of  mortgages  and  the 
sales  of  premises  for  the  payment  of  debts  there- 
by secured  are  matters  of  purely  equitable  cogni- 
zance. Hence,  a  creditor  of  an  estate  of  a  dece- 
dent whose  debt  is  secured  by  mortgage  may, 
after  having  duly  presented  if  to  the  executor  or 
administrator  and  probate  judge,  whether  it  be 
allowed  or  rejected,  proceed  at  once  to  foreclose 
his  mortgage  in  the  proper  court  of  original 
equitable  jurisdiction.  Willis  v.  Farley,  24  Cal. 
491. 

29.  Equitable  and  complete  relief  to  be  admin- 
istered. It  is  the  duty  of  the  court,  as  a  court 
of  equity,  while  keeping  within  the  rules  and 
principles  on  which  its  remedial  jurisdiction  is 
founded,  to  adapt  its  course  of  proceeding,  as 
far  as  possible,  to  the  existing  state  of  things, 
and  to  apnly  its  jurisdiction  to  all  those  new 
cases  which,  from  the  diversified  transactions 
among  men,  are  continually  arising,  and  to  ad- 
minister justice  and  enforce  right,  for  which  there 
is  no  remedy  save  in  a  court  of  equitv.  Tavlor 
V.  Salmon,  4  Myl.  &  C.  141  ;  Walworth  v.  Holt, 
Id.  635;  Dougherty  v.  Creary,  30  Cal.  297;  89 
Am.  Dec.  116.  See  this  case  as  to  mining  mat- 
ters,  abandonment  of  water,   on   tailings,   etc. 

30.  Enjoining  erection  of  wharves,  etc.  The 
equity  jurisdiction  with  which  our  district  courts 
are  invested  under  the  constitutin:i  is  that  ad- 
ministered in  the  high  court  of  chancery  in  Eng- 
land. People  v.  Davidson,  30  Cal.  390;  and  see 
this  case  as  to  power  of  district  courts  to  enjoin 
erection  of  wharves,  public  nuisance,  and  as  to  its 
equity  powers  generally.    Id. 

31.  Annulment  of  decree  of  county  court  con- 
demning land.  Powers  of  district  court  as  a 
court  of  equity  to  annul  condemnation  of  land  for 
certain  uses,   had  by  order   of   county   court.     See 


77.  78 


SUPERIOR  COURTS. 


56 


San  Francisco  etc.  Water  Co.  v.  Alameda  Water 
Co.,  36  Cal.  63-9. 

32.  Title  or  possession  of  real  property.  Con- 
struction of  the  phrase,  "The  district  court  shall 
have  orijrinal  Jurisdiction  in  all  cases  at  law 
•which  involve  the  title  or  possession  of  real 
property."  See  Holman  v.  Taylor,  31  Cal.  338. 
It  was  "held  that  it  was  not  necessary,  however, 
that  the  title  or  possession  be  put  in  issue,  if 
either  is  alleged  in  the  pleadings  on  either  side; 
as  an  issuable  fact  it  is  sufficient  to  give  the  dis- 
trict court  jurisdiction.  Actions  for  damages 
without  reference  to  the  amount  for  trespass 
upon  lands,  are  within  the  jurisdiction  of  the 
district  court.  Holman  v.  Taylor,  31  Cal.  338. 
But  this  case  was  materially  modified  by  the 
same  justice,  in  Pollock  v.  Cummings,  38  Cal. 
684;  see,  too,  Doherty  v.  Thayer,  31  Cal.  144; 
see  note  to  §  114,  [§  112,]  post,  "Justices' 
Courts."  Two  actions  were  commenced  in  a 
justice's  court  to  recover  damages  to  real  prop- 
erty. The  amount  claimed  was  two  hundred  dol- 
lars. The  answer  of  the  defendants  put  in  is- 
sue the  ownership  of  the  property,  and  moved 
to  transfer  the  cases  to  the  district  court.  The 
motions  were  overruled.  On  appeal  to  the  county 
court  the  order  was  made  granting  transfer  to 
the  district  court.  Held:  the  county  court  had 
authority  to  transfer  the  cases  to  the  district 
court,  under  §  838  (§  581)  of  the  code.  The  fact 
that  the  title  of  the  property  was  involved,  and 
not  the  amount  claimed  in  damages,  established 
the  jurisdiction  cf  the  district  court.  Cullen  v. 
Langridge,  17  Cal.  67. 

33.  Legality  of  any  tax,  impost,  assessment, 
etc.  In  People  v.  Mier.  24  Cal.  61,  the  supreme 
court  held  that  in  actions  to  recover  taxes  (under 
the  somewhat  anomalous  condition  in  which  the 
law  then  stood:  Revenue  Laws  1861—62).  the 
character  of  the  action,  as  to  whether  it  was  a 
case  at  law  or  in  equity,  must  be  determined  by 
the  relief  sought  in  the  prayer  of  the  complaint; 
and  that  when  the  amount  of  the  taxes  sued  for 
was  less  than  three  hundred  dollars,  and  there 
was  no  prayer  for  the  foreclosure  of  the  tax  lien, 
order  of  sale,  etc.,  the  district  court  had  no  ju- 
risdiction. Adhered  to  in  Bell  v.  Crippen.  28 
Cal.  327.  If  the  defense  set  up  in  an  answer  in- 
volves the  legality  of  the  tax  Hn  an  action  in  a 
justice's  court,  brought  for  the  recovery  of_  a 
money  judgment),  the  jurisdiction  of  the  justice 
would  be  ousted  on  the  tiling  of  the  answer. 
PeoTile  V.  Mier,  24  Cal.  61. 

34.  Value  or  amount  of  property  in  contro- 
versy. Before  the  amendments  to  the  state  con- 
stitution (adopted  1862),  the  district  court  had 
jurisdiction,  where  the  amount  sued  for.  exclusive 
of    interest,    exceeded    two   hundred   dollars.     Ar- 


nold V.  Van  Brunt,  4  Cal.  89;  Page  t.  Ellis,  9 
Cal.  248.  But  a  judgment  could  be  rendered  for 
a  less  amount  than  the  sum  prescribed  by  the 
constitution,  limiting  the  jurisdiction  of  the  court 
in  the  commencement  of  the  action.  Jackson  v. 
Whartenby,  5  Cal.  94.  In  actions  for  the  recov- 
ery of  money,  the  district  courts  have  jurisdic- 
tion, if  the  demand  in  the  complaint,  exclusive 
of  interest,  amounts  to  three  hundred  dollars. 
Solomon  v.  Keese,  34  Cal.  32;  see  particularly 
note  6,  §  44,  [  S  52,]  ante. 

35.  Insolvency  proceedings.  Proceedings  in  in- 
solvency (state  law)  are  not.  stricti  juris,  either 
proceedings  in  law  or  equity,  but  a  new  remedy 
or  proceeding,  created  by  statute,  the  administra- 
tion of  which  has  been  vested  in  the  district 
courts  of  this  state,  independently  of  their  com- 
mon-law or  chancery  powers,  as  courts  of  gen- 
eral jurisdiction:  and  second,  wherever  a  new 
right  is  created  by  statute,  and  the  enforcement 
of  such  right  is  committed  to  a  court  even  of 
general  original  jurisdiction,  that  such  court, 
quoad  hoc,  is  an  inferior  court,  and  must  pursue 
the  statute  strictly.  The  district  court  acts  as 
a  court  of  limited  or  inferior  jurisdiction  in  these 
matters.    Cohen  v.  Barrett,  5  Cal.   195. 

36.  Writs  of  mandate.  District  courts  have 
jurisdiction  to  issue  writs  of  mandate.  Perry  v. 
Ames,  26  Cal.  372;  Cariaga  v.  Dryden.  30  Cal. 
246:  Courtwright  v.  Bear  River  etc.  Mining  Co., 
30    Cal.    573. 

37.  Writ  of  review  (certiorari).  District  courts 
have  not  jurisdiction,  by  certiorari  (writ  of  re- 
view), over  the  judgment  rendered  in  a  justice's 
court  in  cases  where  the  error  might  have  been 
corrected  by  an  appeal  to  the  county  court.  Gray 
V.  Schupp.  4  Cal.  185.  When  district  courts 
have  jurisdiction  to  review  cases  by  certiorari 
(or  writ  of  review),  see  People  v.  Hester,  6  Cal. 
680  (and  cases  cited  in  brief  of  petitioner)  ;  see 
further.  Chard  v.  Harrison,  7  Cal.  113;  and  People 
V.  El  Dorado  County  Supervisors,  8  Cal.  58,  over- 
ruling People  V.  Hester,  supra;  also  examine  Mur- 
ray V.  Board  of  Supervisors,  23  Cal.  492  :  Perry 
V.  "Ames,  26  Cal.  372;  Morley  v.  Elkins,  37  Cal. 
454 :  see  also,  on  habeas  corpus.  Perry  v.  Ames, 
26  Cal.  372. 

38.  Formation  of  new  districts.  Jurisdiction 
over  causes  arising  previous  to  formation  of  dis- 
trict. Where  a  new  county  is  created  or  a  new 
district  is  formed  by  statute,  the  district  court 
of  the  new  county  or  (of  the  new  district)  has 
jurisdiction  to  try  all  indictments  for  murder 
found  in  the  county  court  of  the  old  county,  but 
committed  in  the  new  county  after  the  passage  of 
the  act  creating  such  new  county,  provided  the 
trial  is  not  had  until  the  new  county  or  district 
is  organized.    See  People  v.  McGuire,  32  Cal.  140. 


§  77.     Appellate  jurisdiction.     The  superior  courts  shall  have  appellate 

justices'  and  other  inferior  courts  in 
escribed  bv  law. 


jurisdiction  in  such  cases  arising  in 
their  respective  counties  as  may  be  pr 


Appellate  jurisdiction.    See  Const.,  art.  vi,  §  5. 
Appeals  to  superior  court.  See  post,  §§  974-980. 

Legislation  §  77.  1.  Added  by  Code  Amdts. 
1880.  p.  28,  to  conform  to  Const.  1879. 

2.   Repeal  by    Stats.    1901,   p.   119;    unconsti- 
tutional.    See  note  ante,  §  5. 
Original  §  77,  "Adjournment  of  [district]  court." 

Appellate  jurisdiction.  This  section  lim- 
its the  appellate  jurisdiction  of  the  superior 
court  to  the  extent  and  mode  prescribed. 
(Sherer  v.  Superior  Court,  9-1  Cal.  354;  29 
Pac.  716):  the  court  has  appellate  jurisdic- 
tion only  as  prescribed  by  law.  People  v. 
Treadwell,  66  Cal.  400;  .5  Pac.  6S6;  Shealor 
V.  Superior  Court,  70  Cal.  564;  11  Pac.  653. 


CODE  COMMISSIONERS'  NOTE.  [§  57,  origi- 
nal code.]  No  appellate  jurisdiction.  The  legis- 
lature has  no  power  to  confer  appellate  jurisdic- 
tion on  district  courts.  Clary  v.  Hoagland,  6  Cal. 
668;  Townsend  v.  Brooks,  5  Cal.  52;  Caulfield  v. 
Hudson,  3  Cal.  389;  Zander  v.  Coe,  5  Cal.  230. 
The  district  court  has  no  appellate  jurisdiction. 
The  legislature  cannot  provide  for  appeals  from 
inferior  courts  to  the  district  court.  People  v. 
Peralta,  3  Cal.  379;  Caulfield  v.  Hudson,  3  Cal. 
389;  Hernandes  v.  Simon,  3  Cal.  464;  Gray  v. 
Schupp,  4  Cal.  185;  Reed  v.  McCormick,  4  Cal. 
342;  Townsend  v.  Brooks,  5  Cal.  52.  No  appel- 
late jurisdiction  exists  even  from  probate  courts. 
Reed  v.  McCormick,  4  Cal.  342;  Pond  v.  Pond,  10 
Cal.  495.  Nor  can  a  district  court  review  pro- 
ceedings in  a  justice's  court  if  the  error  com- 
plained of  might  have  been  corrected  by  an  appeal 
to  the  county  court.    Gray  v.  Schupp,  4  Cal.  185. 


§  78.     Process.     The  process  of  the  superior  courts  shall  extend  to  all 
parts  of  the  state ;  provided,  that  all  actions  for  the  recovery  of  the  posses- 
sion of,  quieting  the  title  to,  or  for  the  enforcement  of  liens  upon  real  estate, , 
shall  be  commenced  in  the  county  in  which  the  real  estate,  or  any  part 
thereof  affected  by  such  action  or  actions,  is  situated. 


57  TRANSFER   OF   ACTIONS — JUSTICES'    COURTS,  §§  79-85 

Processninsthroughoutstate.    Const.,  art.  vi,  §  5.  Process  nuis  throughout  State.    "Raiscli  V. 
Place  of  trial.      Const.,  art.  vi.  §  5;  post.  S  a!)2.  ^VMtr.M,.   IS  (':,1.  App.  iuu,;    ll'4  Vac.  [):,. 
Legislation  s  78.     1.  Added  by  Code  Anidts.  Veiiue  Of  actions  affecting  real  property 
*1f.**l\'ip..albv  stats.  1901,  p.  119;  unconsti-  i«  "'  any  county  in  which  part  of  the  lan.i 
tutioniil.    See  note  anti",  §  5.  aiicctorl    by    the    action    IS   situateil.     Kim- 
Til. •  original  §  78  was  entitled  "Jud-ments  may  1,;,11  v.  Tripp,  i:i()  ('al.  G.'H  ;  6'J  Pac.  42S. 
be  entered  in  vacation." 

§  79.  Transfer  of  books,  papers,  and  actions.  All  records,  books,  papers, 
causes,  actions,  })i'()cee(Iiii<;-s,  and  appeals  lod^'ed,  deposited,  or  pendiii<>:  i'l  the 
district  court  or  courts,  county  court,  probate  court,  inunicii)al  criminal  court, 
or  municipal  court  of  appeals,  of,  in,  or  for  any  county,  or  city  and  county,  of 
the  state,  abolished  by  the  constitution,  are  transferred  to  the  superior  court 
of  such  county,  or  city  and  county,  which  has  the  same  power  and  jurisdic- 
tion over  them  as  if  they  had  been  in  the  first  instance  lodged,  deposited, 
filed,  or  commenced  therein,  or,  in  cases  of  appeal,  appealed  thereto. 

Transfer   of   books,   papers,    and   actions.      See  2.   Repeal  by   Stats.   1901,  p.   119;   unconsti- 

Coiisl.,   ,'irt.  XX,  §  3;   ante,  §§  .")5.  .^fi.  tutinnal.      See  niite  ante,  §  5. 

Act  conferring  upon  superior  court  powers  of  Judicial  officers.     Justices  of  the   peace 

former  courts.      See  Stats.   1880.  p.  2?,.  „„       .     ..    .    ,  .   ,  .  '    . 

Act    transferring    to    superior   court    business,  ^.^^    judicial    ofhcers,    within    tiie    eon.stitu- 

etc,  of  former  courts.     See  Stats.  1880.  p.  2.  tion.    Kahn  v.  Sutro,  114  Cal.  316;  33  L.  K. 

Legislation  §  79.  1.  Added  by  Code  Amdts.  ^J  .^-^A  1^'  ^^^A^'  ^^  ^^  Mitchell,  120  Cal. 
ISSO,  p.  28.  3S4;  d2  Pac.  (99. 

CHAPTER  V. 

JUSTICES'  COURTS. 
Article  T.     Justices'  Courts  in  Cities  and   Counties.     §§  82-98. 
II.     .Justices'  Courts  in  Townships.     §§  99-109. 
III.     Justices  of  the  Peace  and  Justices'   Courts  in   General.     §§  110-119. 

ARTICLE  I. 

JUSTICES'  COURTS  IN"  CITIES  AND  COUNTIES. 

Payment  of  fees. 

Certificates,  transcripts,  and  other  papers. 

Justices'  docket. 

Territorial  extent  of  jurisdiction. 

Practice  and  rules. 

Attorney.      Who  shall  not  act  as. 

Salaries. 

What  justices  successors  of  others. 

Repealed.] 

Legislation  S§  82,    83.    84.      1.   Enacted   March  2.   Repealed  by  Code  Amdts.   1880,  p.  21,   in 

11,  18  73,  and  related  to  county  courts.  amending  Part  I. 

§  85.  Justices'  courts  and  justices.  There  shall  be  in  every  city  and 
count}^  of  more  than  four  hundred  thousand  population  a  justice's  court  for 
Mdiieh  five  justices  of  the  peace  shall  be  elected  by  the  qualified  electors 
at  the  general  state  election  next  preceding  the  expiration  of  the  terms  of 
office  of  their  predecessors.  Any  of  said  justices  may  hold  court  and  there 
may  be  as  many  sessions  of  said  court  at  the  same  time  as  there  are  justices 
thereof.  Said  justices  shall  choose  one  of  their  number  to  be  presiding 
justice  who  may  at  any  time  be  removed  and  another  appointed  in  his  place 
by  a  vote  of  a  majority  of  them ;  providing,  that  in  the  case  of  the  temporary 
absence  or  disability  of  the  presiding  justice,  any  one  of  the  other  justices, 
to  be  designated  by  the  presiding  justice,  may  act  as  presiding  justice  dur- 
ing such  absence  or  disability.  Each  justice  of  the  peace  so  elected  must 
at  the  time  of  his  election  be  an  elector  of  such  city  and  county,  and  qualified 
to  practice  in  all  the  courts  of  this  state. 


82. 

fRelnted     to      county     courts.     Repealed, 

.         §  91. 

§§  S3,    84.      Same.] 

§  92. 

85. 

.Justices'  courts  and  justices. 

§  93. 

86. 

Clerks  of  justices'   courts. 

§  94. 

87. 

Sheriff  and  deputies. 

§  9.5. 

88. 

Offices  and  office  hours. 

§  96. 

89. 

Actions. 

§  97. 

90. 

Reassignment  and  transfer  of  actions. 

§  98. 

§§ 

82,  83,  84.     [Related  to  county 

courts. 

§§86,87  justices'  COURTS.  58 

Justices,  number,  etc.      Const.,  art.  vi,  §  11.  thousand  population"  for  "one  hundred  thousand 

Justices'  courts.      Compare  §§  103.  110,  post.  population,"  and  (c)  striking  out  "of  such  city  and 

Act   organizing    San    Francisco    justices'   court  county"  after  "qualified  electors";    (2)   in  second 

(Stats.   1865-66,  p.  423;   1869-70,  p.  56;   1871-  sentence,   striking  out  "one"  after  "Any";    (3)   in 

72,  p.  758)  governed  before  1880.  third    sentence,     (a)    striking    out    "The"    as    the 

■  ,   1-       o  r,=       ..      .  jj    J    1,       <-i   J       A      J4.  initial  word  of  the  sentence,   and  (b)  adding  "the" 

legislation  §  85.      1.  Added    by    Code    Amdts.  before  "case"  ;    (4 )  adding  the  final  sentence. 

1880.  p.   -9.  ^n.^c:  i  a  a  n     /i\    •„  The   orisinal§85   defined    the   original   jurisdio 

2.   Amended  by  Stats    1915,  p    1440     (1)    in  tion  of  countv  courts. 

first     sentence,     (a)     substituting      four    hundred 

§  86.  Clerks  of  justices'  courts.  The  supervisors  of  such  city  and  county 
shall  appoint  a  justices'  clerk  on  the  written  nomination  and  recommenda- 
tion of  said  justices,  or  a  majority  of  them,  Avho  shall  hold  office  during 
good  behavior,  and  who  shall  receive  a  salary  of  three  thousand  dollars  a 
year.  Said  justices'  clerk  shall  take  the  constitutional  oath  of  office,  and 
give  bond  in  the  sum  of  ten  thousand  dollars  for  the  faithful  discharge  of 
the  duties  of  his  office,  and  in  the  same  manner  as  is  or  may  be  required  of 
officers  of  such  city  and  county.  A  new  or  additional  bond  may  be  required 
by  the  supervisors  of  such  city  and  county,  and  in  such  amount  as  may 
be  fixed  by  said  supervisors,  whenever  they  may  deem  it  necessary.  The 
said  clerk  may  appoint  a  chief  deputy  and  a  cashier,  each  at  a  salary  of 
eighteen  hundred  dollars  a  year,  and  three  deputy  clerks  and  one  messenger 
each  at  a  salary  of  fifteen  hundred  dollars  a  year.  Said  justices'  clerk,  and 
each  of  said  appointees  shall  have  authority  to  administer  oaths,  take  and 
certify  affidavits  and  issue  and  sign  writs,  summons,  and  all  other  processes, 
in  any  action,  suit  or  proceeding  in  said  justices'  court,  and  generally  to 
do  all  the  acts  specified  in  sections  one  hundred  and  two  and  one  hundred 
and  two  a  of  this  code.  They  shall  be  at  their  respective  offices  for  the 
dispatch  of  official  business  daily,  except  Sundays,  holidays  and  Saturday 
afternoons,  from  the  hour  of  nine  o  'clock  a.  m.  until  five  o  'clock  p.  m.  The 
salaries  of  said  justices'  clerk  and  his  appointees  shall  be  paid  out  of  the 
treasury  of  said  city  and  county  in  the  same  manner  that  salaries  of  officers 
of  such  city  and  county  are  paid,  and  shall  be  in  lieu  of  all  fees  collected 
by  them,  and  all  persons  appointed  to  such  positions  shall,  after  they  have 
served  a  period  of  six  months  in  their  respective  positions,  be  entitled  to 
all  the  benefits  of  the  civil  service  laws  of  this  state. 

Legislation  §  86.      1.  Added    by    Code    Amdts.  pleasure  of  said  clerk.      Said  justices'  clerk  and 

18SO,  p.  29.  deputy  shall   have   authority  to  administer  oaths, 

2.   Amended  by  stats.  1915,  p.  58,  (1)  in  first  and    take    and    certify    affidavits    in    any    action, 

sentence,    substituting   the   final   clause   for   "who  suit,   or  proceeding  in  said  justices'   court." 

shall  hold  office  for  two  years,  and  until  his  sue-  The  amending  act  of  1915  contained  a  repeal- 

cessor  is  in  like  manner  appointed  and  qualified";  ing  clause,  reading,   "Sec.  2.   All  acts  or  parts  of 

(2)    in  second  sentence,   striking  out  "other"   be-  acts  in  conflict  herewith  are  hereby  repealed." 

fore  "officers";    (3)    substituting  the  present  four  .The    original  §  86    defined    the    appellate    juris- 

final  sentences  for  the  former  two  final  sentences,  diction  of  county  courts. 

which  read,    "The  justices'    clerk   shall   have   au-  Liability    of    clerks    of    courts:    1.   On    official 

thority  to  appoint   two   dr-puty   clerks,   for  whose  bonds.   See  note  91   Am.   St.   Rep.   562;    2.  To   in- 

acts   he   shall  be  resnonsiblc^   on  his   official   bund,  dividuals    for    non-pi'Vlorn-'ince    of    official    duties, 

the  said  deputy  cltiks  to  hold  office  during  the  ggg  ^^^^  95  ^m_  g^^  j^^p^  39^ 

§  87.  Sheriff  and  deputies.  The  .sherifi!  of  such  city  and  countj^  shall  be 
ex  officio  an  officer  of  said  court,  and  it  shall  be  his  duty  to  serve  or  execute, 
or  cause  to  be  served  and  executed,  each  and  every  process,  writ,  or  order 
that  may  be  issued  by  said  justices'  court;  provided,  tliat  a  summons  issued 
from  said  court  may  be  served  and  returned  as  provided  in  section  eight 
hundred  and  forty-nine  of  this  code ;  and  that  subpoenas  may  be  issued  by 
the  justices'  clerk  and  served  as  provided  in  section  one  thousand  nine  hun- 
dred and  eighty-seven  and  one  thousand  nine  hundred  and  eighty-eight  of 
this  code.  The  said  sheriff  may  appoint,  in  addition  to  the  other  deputies  al- 
lowed by  law,  three  deputies,  whose  duty  it  shall  be  to  assist  said  sheriff  in 
serving  and  executing  the  process,  writs,  and  orders  of  the  said  justices' 
court.     Said  deputies  shall  receive  a  salary  of  one  hundred  and  twenty-five 


59  OFFICES — REASSIGNMENT   AND   TRANSFER  OP   ACTIONS.  §§88-90 

dollars  per  month  each,  payablo  montlil}'',  out  of  tlie  city  and  county  treas- 
ury, and  out  of  the  special  fee  fund,  after  being  first  allowed  and  audited  as 
other  demands  are  by  law  required  to  l)e  audited  and  allowed.  One  of  said 
deputies  shall  remain  in  attendance  dui-ing  the  sessions  of  said  court,  and  at 
sucli  other  times  as  tlie  said  coui-t  or  tbe  ]>residiug  justice  thereof  may  order 
and  direct,  for  the  purpose  of  attending  to  such  duties  as  may  be  imposed  on 
said  sheriff  or  said  deputies  as  herein  provided,  or  required  by  law.  The  said 
sheriff  shall  be  liable  on  his  official  bond  for  the  faithful  performance  of  all 
duties  re(iuired  of  him,  or  any  of  his  said  deputies. 

Sheriff,  generally.    See  Pol.  Code,  §§  4175  ct  seq.  Tlie  original  §  87  defined  presumptions  in  favor 

Legislation  g  87.      Added       by       Code       Aiudts.         of  judgments  of  county  courts. 
1880,  p.  30. 

§  88.  Offices  and  ofiice  hours.  The  supervisors  of  such  city  and  county 
shall  provide,  in  some  convenient  locality  in  the  city  and  county,  a  suitable 
office,  or  suite  of  offices  for  said  presiding  justice,  justices'  clerk,  deputy 
clerk,  and  deputy  sheriff,  and  ofifices  suitable  for  holding  sessions  of  said 
court,  and  separate  from  one  another,  for  each  of  said  justices  of  the  peace, 
together  with  attendants,  furniture,  fuel,  lights,  and  stationery  sufficient  for 
the  transaction  of  business;  and  if  they  are  not  provided,  the  court  may 
direct  the  sheriff  to  provide  the  same,  and  the  expenses  incurred,  certified  by 
the  justices  to  be  correct,  shall  be  a  charge  against  the  city  and  county  treas- 
ury, and  paid  out  of  the  general  fund  thereof.  The  said  justices,  justices' 
clerk,  and  deputy  clerk,  shall  be  in  attendance  at  their  respective  offices  for 
the  dispatch  of  official  business,  daily,  from  the  hour  of  eight  o'clock  a.  m. 
until  five  o'clock  p.  m. 

Legislation  g  88.     Added      by      Code      Amdts.  The  original  §  88  provided  for  terms  of  county 

1880,  p.  30.  courts  in   the   several  counties. 

§  89.  Actions.  All  actions,  suits,  and  proceedings  in  such  city  and  county 
whereof  justices  of  the  peace  or  justices'  courts  have  jurisdiction,  except 
those  cases  of  concurrent  jurisdiction  that  may  be  commenced  in  some  other 
court,  shall  be  entitled  "In  the  Justices'  Court  of  the  City  and  County  of 

"  (inserting  the  name  of  the  city  and  county),  and  commenced  and 

prosecuted  in  said  justices'  court,  which  shall  be  always  open.  The  original 
process  shall  be  returnable,  and  the  parties  summoned  required  to  appear 
before  the  presiding  justice,  or  1)efore  one  of  the  other  justices  of  the  peace, 
to  be  designated  by  the  presiding  justice,  at  his  office;  but  all  complaints, 
answers,  and  other  pleadings  and  papers,  required  to  be  filed,  shall  be  filed, 
and  a  record  of  all  such  actions,  suits,  and  proceedings  made  and  kept  in  the 
clerk's  office  aforesaid;  and  the  presiding  justice,  and  each  of  the  other 
justices  shall  have  power,  jurisdiction,  and  authority  to  hear,  try,  and  deter- 
mine any  action,  suit,  or  proceeding  so  commenced,  and  which  shall  have 
been  made  returnable  before  him,  or  may  be  assigned  or  transferred  to  him, 
or  any  motion,  application,  or  issue  therein  (subject  to  the  constitutional 
right  of  trial  by  jury),  and  to  make  any  necessary  and  proper  orders  therein. 

Concurrent  jurisdiction.  See  post,  §  113.  1880,  p.  30. 

Jurisdiction  of  justice's  couri.    See  post,  §§  112  The  original  §  89  declared  county  courts  always 

et  seq.  open  for  certain  purposes. 
Legislation  §  89.     Added       by      Code      Amdts. 

§  90.  Reassignment  and  transfer  of  actions.  In  case  of  sickness  or  dis- 
ability or  absence  of  a  justice  of  the  peace  (on  the  return  of  a  summons  or 
at  the  time  appointed  for  trial)  to  whom  a  cause  has  been  assigned,  the  pre- 


§  91  justices'  courts.  60 

siding  justice  shall  reassign  the  cause  to  some  other  justice,  who  shall  pro- 
ceed with  the  trial  and  disposition  of  said  cause  in  the  same  manner  as  if 
originally  assigned  to  him ;  and  if,  at  any  time  before  the  trial  of  a  cause  or 
matter  returnable  or  pending  before  anj^  of  said  justices,  either  party  shall 
object  to  having  the  cause  or  matter  tried  before  such  justice,  on  the  ground 
that  such  justice  is  a  material  witness  for  either  party,  or  on  the  ground  of 
the  interest,  prejudice,  or  bias  of  such  justice,  and  such  objection  be  made  to 
appear  in  the  manner  prescribed  b}^  section  eight  hundred  and  thirty-three 
of  this  code,  the  said  justice  shall  suspend  proceedings,  and  the  presiding 
justice,  on  motion  and  production  before  him  of  the  affidavit  and  proofs, 
shall  order  the  transfer  of  the  cause  or  matter  for  trial  before  some  other 
justice,  to  be  designated  by  him.  The  presiding  justice  may,  in  like  manner, 
assign  or  transfer  any  contested  motion,  application,  or  issue  in  law,  arising 
in  any  cause  returnable  or  pending  before  him  or  any  other  justice,  to  some 
other  justice;  and  the  said  justice,  to  whom  any  cause,  matter,  motion,  appli- 
cation, or  issue  shall  be  so  as  aforesaid  assigned  or  transferred,  shall  have 
power,  jurisdiction,  and  authority  to  hear,  try,  and  determine  the  same 
accordingly. 

Legislation  §  90.     Added      by      Code      Amdts.  The  original  §  90  provided  for  place  of  holding 

ISSO,  p.  31.  county  courts, 

§  91.  Payment  of  fees.  All  legal  process  of  every  kind  in  actions,  suits, 
or  proceedings  in  said  justices'  court,  for  the  issue  or  service  of  which  any 
fee  is  or  may  be  allowed  by  law,  shall  be  issued  by  the  said  justices'  clerk 
upon  the  order  of  the  presiding  justice,  or  upon  the  order  of  one  of  the  jus- 
tices of  the  peace,  acting  as  presiding  justice,  as  in  this  article  provided  ;  and 
the  fees  for  issuance  and  service  of  all  such  process,  and  all  other  fees  which 
are  allowed  by  law  for  any  official  services  of  justices,  justices'  clerk,  or 
sheriff,  shall  be  exacted  and  paid  in  advance  into  the  hands  of  said  clerk, 
and  be  by  him  daily,  or  weekly,  or  monthly,  as  the  supervisors  may  require, 
and  before  his  salary  shall  be  allowed,  accounted  for  in  detail,  under  oath, 
and  paid  into  the  treasury  of  such  city  and  county  as  part  of  the  special  fee 
fund  thereof;  provided,  that  such  payment  in  advance  shall  not  be  exacted 
from  parties  who  may  prove  to  the  satisfaction  of  the  presiding  justice  that 
they  have  a  good  cause  of  action,  and  that  they  are  not  of  sufficient  pecu- 
niary ability  to  pay  the  legal  fees ;  and  no  judgment  shall  be  rendered  in  any 
action  before  said  justices'  court,  or  any  of  said  justices,  until  the  fees  al- 
lowed therefor,  and  all  fees  for  previous  services  therein,  Avhicli  are  destined 
to  be  paid  into  the  treasury,  shall  have  been  paid,  except  in  cases  of  poor 
persons,  as  hereinbefore  provided. 

Fees.    See  Const.,  art.  vi,  §  15.  the  presiding  justice.    Helms  v.  Dunne,  107 

Legislation  §  91.     i.  Added    by    Code    Amdts.  Cal.   117;  40  Pae.  100.     Where  the  process 

18SO,  p.  31.  recites  that  it  was  issue^l  upon  the  order 

2.  Amendment  by  Stats.   1901,   p.   119;   un-  of  the  presiding  iustice,  it  mav  be  proved 

constitutional.      See  note  ante,  §  5.  ,,     ,     .■.'      o-,ipr      •'„    ;,,  'f„„j.    ™'„,ip    L.    the 

LIltlL      Lilt;     UlQcl       Vv  tto     111     Xclt  t     lIltlMc      UV       LUtJ 

Process    on   order    of    presiding   justice.  presiding  justice,   though   there  is  a   mis- 

An  order  of  the  presiding  justice  is  neces-  take    in    his    name.     Helms   v.    Dunne,    107 

sary   to    secure    issuance    of    process;    and  C'al.  117;  40  Pac.  100. 

mandamus  will  not  lie  to  compel  the  clerk  Fees.     The  fee  for  entering  judgment  is 

to  issue  process  without  such  order.     Kos-  two  dollars,  but  the  justice  is  not  author- 

minsky  v.  Williams,   126  C'al.  26;   58  Pac.  ized  to  receive  the  same:  it  must  bo  paid 

310.     The  signature  to  the  process  may  be  to  the  clerk.    Eeid  v.  Groezinger,  115  Cal. 

by  the  clerk,  who  should  sign  as  "justice's  551  j  47  Pac.  374;  Miller  v.  Curry,  113  Cal. 

clerk":  the  process  need  not  be  signed  by  644-  45  Pac.  877. 


61  CERTIFICATES  AXD   OTHER    PAPERS — EXTENT   OF   JURISDICTION. 

§  92.  Certificates,  transcripts,  and  other  papers.  Cases  which  by  the  pro- 
visions of  law  are  rcMiuired  to  be  cei-tilied  to  tlie  superior  court,  by  reason  of 
involving  the  question  of  title  or  possession  of  real  property,  or  the  lefrality 
of  any  tax,  impost,  assessment,  toll,  or  municipal  fine,  shall  be  so  certified  by 
the  presiding  justice  and  justices'  clerk;  and  for  that  purpose,  if  such  ques- 
tion shall  arise  on  the  trial,  while  the  case  is  pendino;  before  one  of  the  other 
justices,  such  justice  shall  certify  the  same  to  the  presiding  justice.  All 
abstracts  and  transcripts  of  judgments  and  proceedings  in  said  court,  or  in 
any  of  the  dockets  or  registers  of  or  deposited  in  said  court,  shall  be  given 
and  certified  from  any  of  such  dockets  or  registers,  and  signed  by  the  pre- 
siding justice  and  clerk,  and  shall  have  the  same  force  and  effect  as  abstracts 
and  transcripts  of  justices  of  the  peace  in  other  cases.  Appeals  from  judg- 
ments rendered  in  said  coui't  shall  be  taken  and  perfected  in  the  manner 
prescribed  by  law ;  but  the  notice  of  appeal,  and  all  the  papers  required  to 
be  filed  to  perfect  it,  shall  be  filed  with  the  justices'  clerk.  Statements  on 
appeal  shall  be  settled  by  the  justice  who  tried  the  cause.  Sureties  on  ap- 
peal, or  on  any  bond,  or  undertaking  given  in  any  cause  or  proceeding  in 
said  court,  when  required  to  justify,  may  justify  before  any  one  of  the 
justices. 

Transfer  to  superior  court.    See  post,  §  838.  ner   v.   Superior   Court,   161   Cal.    209;    118 

Appeals.   Seepost,  §§974etseq.  p^e.    709.      After   a    case    in    the   justice's 

Legislation  §  92.  Added  by  Code  Amdts.  court  of  the  city  and  county  of  San  Fran- 
18SO,  p.  3..>.  Cisco  has  been  assigned  for  trial  to  a  par- 

Undertaking  on  appeal.  An  undertak-  ticular  justice,  the  justification  of  sureties 
ing  on  appeal  from  a  justice's  court,  de  on  an  undertaking  on  appeal  may,  after 
fective  merely,  and  not  a  nullity,  may  due  notice  to  the  adverse  party,  be  taken 
be  cured  by  filing  in  the  superior  court  a  before  any  other  justice  of  the  same  court, 
sufficient  undertaking,  in  jmrsuance  o±  Werner  \.  Superior  Court,  161  Cal.  209; 
leave  first  obtained  from  that  court.     Wer-       118  Pac.  709. 

§93.  Justices'  docket.  In  a  suitable  book,  strongly  bound,  the  justices' 
clerk  shall  keep  a  permanent  record  of  all  actions,  proceedings,  and  judg- 
ments commenced,  had,  or  rendered  in  said  justices'  court,  which  book  shall 
be  a  public  record,  and  be  known  as  the  "justices'  docket,"  in  which  docket 
the  clerk  shall  make  the  same  entries  as  are  provided  for  in  section  nine  hun- 
dred and  eleven  of  this  code,  and  which  said  docket  and  entries  therein  shall 
have  the  same  force  and  effect  as  is  provided  by  law  in  reference  to  dockets 
of  justices  of  the  peace.  To  enable  the  clerk  to  make  up  such  docket,  each 
of  the  justices  shall  keep  minutes  of  his  proceedings  in  every  cause  return- 
able before  or  assigned  or  transferred  to  him  for  trial  or  hearing;  and  upon 
judgment  or  other  disposition  of  a  cause,  such  justice  shall  immediately 
certify  and  return  the  said  minutes,  together  with  all  pleadings  and  papers 
in  said  cause,  to  the  clerk's  office,  who  shall  immediately  thei'eupon  file  the 
same  and  make  the  proper  entries  under  the  title  of  the  action  in  the  docket 
aforesaid. 

Docket.  the  justice's  docket  is  primarv  evidence  ot 

o'  BsiVt^ol^' /olT'&l'^^  ^^  ^^'^'  *^^®  *'^^*^  therein  alleged,  where  they  are 

■  '  ■  not  rebutted  by   anvthing  else  in  the  rec- 

Legislation  §  93.     Added     by     Code     Amdts.  ^^d.    Eauer  v.  Justice's  Court,  115  Cal.  84; 

^^^^'V-3^-  46  Pac.  870. 
Effect  of  entry  in  docket.     The  entry  in 

§  94.  Territorial  extent  of  jurisdiction.  The  jurisdiction  of  the  justices' 
court  of  such  city  and  county  extends  to  the  limits  of  the  city  and  county, 
and  its  process  may  be  served  in  any  part  thereof. 


§§  95-98  justices'  courts.  62 

Jurisdiction.    Post.  §§  112  et  setj.,  925.  1880.  p.  32. 

Process,  where  runs.    See  post,  §  106.  The  original  §  94  provided  that  a  probate  court 

Legislation  §  94.      Added      by      Code      Amdts.        ™"st  be  held  in  each  county. 

§95.  Practice  and  rules.  The  jn.stiees'  conrt  and  the  justices  of  the 
peace  of  every  such  city  and  county  shall  be  governed  in  their  proceedings 
by  the  provisions  of  law  regulating  proceedings  before  justices  of  the  peace, 
so  far  as  such  provisions  are  not  altered  or  modified  in  this  article,  and  the 
same  are  or  can  be  made  applicable  in  the  several  cases  arising  before  them. 
The  justices'  courts  of  such  city  and  county  shall  have  power  to  make  rules 
not  inconsistent  with  the  constitution  and  laws  for  the  government  of  such 
justices'  court  and  the  officers  thereof;  but  such  rules  shall  not  be  in  force 
until  thirty  days  after  their  publication;  and  no  rules  shall  be  made  impos- 
ing any  tax  or  charge  on  any  legal  proceeding,  or  giving  any  allowance  to 
any  justice  or  officer  for  services. 

Provisions  applicable.   See  post,  §§  832-926.  Rules   Of   court,      Eules    of   practice   are 

Rules  of  courts   generally.    See  post   §  129.  properlv    within    the     iurisdiction     of    the 

ISsTi  32°^  ^  •       court.    Ex   parte   Thistleton,   52   Cal.    220; 

Ori'ginal  §  95:  "Judges  of"  [probate  court].  People  V.  Jordan,  65  Cal.  644;  4  Pac.  683. 

§  96.  Attorney.  Who  shall  not  act  as.  It  shall  not  be  lawful  for  any 
justice  of  the  peace,  justices'  clerk,  or  sheriff  of  any  such  city  and  county, 
or  any  of  their  deputies,  to  appear  or  advocate,  or  in  any  manner  act  as  at- 
torney, counsel,  or  agent  for  any  party  or  person  in  any  cause,  or  in  relation 
to  any  demand,  account,  or  claim  pending,  or  to  be  sued  or  prosecuted  before 
said  court  or  justices,  or  either  of  them ;  nor  shall  any  person  other  than  an 
attorney  at  law,  duly  admitted  to  practice  in  courts  of  record,  be  permitted 
to  appear  as  attorney  or  agent  for  any  party  in  any  cause  or  proceeding  be- 
fore said  justices'  court,  or  any  of  said  justices,  unless  he  produce  a  sufficient 
power  of  attorney  to  that  effect,  duly  executed  and  acknowledged  before  some 
officer  authorized  by  law  to  take  acknowledgments  of  deeds,  which  power  of 
attorney,  or  a  copj^  thereof,  duly  certified  by  one  of  the  justices  (who,  on 
inspection  of  the  original,  and  being  satisfied  of  its  genuineness,  shall  certify 
such  copy),  shall  be  filed  among  the  papers  in  such  cause  or  proceeding. 

Judges,  disqualifications  of.      Post,  §§  170-172.  The   original  §  96  provided  for  the  election   of 

_.,.  „         ,,,,„,.,       -.^...^  a  probate   judge  in  the   city  and  county   of   San 

Legislation  §  96.    Added  bv  Code  Amdts.  1880,  Francisco 
p.  33. 

§  97.  Salaries.  The  justices  of  the  peace  shall  receive  for  their  official 
services  the  following  salaries  and  no  other  or  further  compensation,  pay- 
able monthly,  out  of  the  city  and  county  treasury,  after  being  first  allowed 
and  audited,  as  other  similar  demands  are  by  laAv  required  to  be  allowed 
and  audited ;  to  each  of  the  justices  of  the  peace  four  thousand  two  hundred 
dollars  per  annum. 

Legislation  §  97.      1.  Added    by    Code    Amdts.  dollars  per   annum;    to  the   other  justices   of   the 

1880,  p.  33,  and  then  read:   "The  justices  of  the  peace    and   the   justices'    clerk,    each,    twenty-four 

peace,  and  justices'  clerk,  and  his  deputy  shall  re-  hundred  dollars  per  annum;    to  the  deputy  of  the 

ceive  for  their  official   services  the  following  sala-  justices'  clerk,  twelve  hundred  dollars  per  annum." 
ries,  and  no  other  or   further   compensation,   pay-  2.   Amended  by  .Stats.  1905,  p.  9. 

able  monthly,  out  of  the  city  and  county  trensury,  3.   Amended  by   Stats.    1915,   p.   1440,   substi- 

and  out  of  the  special  fee  fund  thereof,  after  being  tuting   "four   thousand   two   hundred   dollars"    for 

first  allowed  and  audited  as  other  similar  demands  "thirty-si.K  hundred    dollars." 

are  by   law   required   to   be   allowed  and   audited:  The    original  §  97    defined    the    jurisdiction    of 

To    the    presiding   justice,    twenty-seven    hundred  probate  courts. 

§  98.  What  justices  successors  of  others.  The  justices  of  the  peace 
elected  in  any  such  city  and  county  at  the  general  election  of  eighteen  hun- 
dred and  seventy-nine,  or  persons  appointed  to  fill  their  places,  are  succes- 
sors of  the  justices  of  the  peace  of  such  city  and  county  who  held  office  af 
the  time  of  such  election;  and  all  records,  registers,  dockets,  books,  papers. 


63  JUSTICES — RETURN  OP  PROCESS.  §§  99,  100 

causes,  actions,  and  proceedings  lodged,  deposited,  or  pending  befoi-e  the 
justices'  court,  or  any  justice  of  any  such  city  and  county,  are  transferred 
to  the  justices'  court  of  such  city  and  county,  herein  provided  for,  which 
shall  have  the  same  power  and  jurisdiction  over  them  as  if  they  had  been 
in  the  first  instance  lodged,  deposited,  tiled,  or  commenced  therein. 

Similar  provisions.  Legislation  S  98.      Added      by      Code      Amdts. 

1.  Supreme  court.    Ante,  §  55.  ISSO,  p.  :5;!. 

2.  Superior  court.     Anti',  §  79.  The  oriKinal  §  98  defined  presumptions  in  favor 
What  justices  auccessors  of  others.  See  post,        of  judgments  of  probate  courts. 

S  1U7. 

ARTICLE  11. 

JUSTICES'  COURTS  IN  TOWNSHIPS. 

§    99.     Justices'    courts    and    justices    in    town-  second  and  one  half  and  third  classes, 

ships     having     a     population     between  duties,    etc. 

two    hundred    and    fifty    thousand    and  §  103a.   Justices'    clerks,    additional  powers   of. 

four  hundred   tliousand.  §  103b.   Justices'      clerics      in      counties      of      the 
§  100.      Return  of  process.  seventh     class,     appointed     when,     and 

§  101.      Appointment  of  justices'   clerk.  powers    and    duties    of. 

§  102.      Duties   of   justices'    clerk.  §  104.      Courts,   where  held. 

§  102a.  Fees.  §  105.  What  justice  may  hold  court  for  an- 
§  102b.    Salaries   of   justices   and   clerks.  other. 

§  103.      Justices'  courts  and  justices.     In  counties.  §  106.      Territorial    extent    of    civil    jurisdiction. 

In  cities  of  various  classes.      Jurisdic-  §  107.      What   justices   successors   of   others. 

tion.    Qualifications.    Salaries.    Fees.  §  108.      [Related   to   municipal    criminal   court   of 
§    103J.   Clerk     to    justice's     court     in     cities     of  San  Francisco.  Repealed.  §  109.  Same.] 

§  99.     Justices'  courts  and  justices  in  townships  having-  a  population 
between  two  hundred   and   fifty  thousand  and  four  hundred  thousand. 

There  shall  be  in  each  township  having  a  population  of  more  than  two  hun- 
dred and  fifty  thousand  and  less  than  four  hundred  thousand,  one  justices' 
court  composed  of  six  justices  of  the  peace,  which  shall  have  the  powers 
and  jurisdiction  prescribed  and  conferred  by  laAv  upon  justices  of  the  peace. 
Said  justices  shall  choose  one  of  their  number  to  be  presiding  justice,  and 
in  case  of  his  disability  or  temporary  absence  he  may  designate  any  one  of 
the  other  justices  to  act  in  his  stead.  Any  of  said  justices  may  hold  court 
and  there  may  be  as  many  sessions  of  said  court  at  the  same  time  as  there 
are  justices  thereof.  The  supervisors  shall  provide  in  a  convenient  locality 
a  suitable  office  for  the  presiding  justice,  justices'  clerk,  and  rooms  suitable 
for  holding  sessions  of  said  court,  separate  from  each  other,  for  each  of 
said'  justices  of  the  peace.  The  said  justices,  justices'  clerk,  and  deputy 
clerk,  shall  be  in  attendance  at  their  respective  offices  for  the  dispatch  of 
official  business  daily  from  nine  o'clock  a.  m.  until  five  p.  m. 

Nothing  in  this  act  shall  affect  the  tenure  of  office  of  any  justice  of  the 
peace  noAV  holding  office. 

Legislation  §  99.      1.  Added  by    Stats.    1911,  taking  effect   said  justice  of  the  peace   shall   or- 

p.  442;  the  act  (adding  §§  99-lb2b)  containing  ganize  said  court  under  the  provision  of  this  act." 
a  saving  clause,  reading,  "Sec.  7.     Nothing  in  this  2.   Amended   by    Stats.    1915,   p.   215,    (1)    in 

act  shall   in  any  way  interfere  with  or  terminate  first    sentence,    substituting    "six    justices    of    the 

the  term  of  office  of  any  person  now  holding  the  peace"  for  "four  justices  of  the  peace";    (2)   add- 

oiBce    of   either  justice   of   the   peace   or   clerk    of  ing  the  saving  clause  at  the  end  of  the  section, 
the  justices'  court,  but  immediately  upon  this  act  The  original  §  99  related  to  probate  courts. 

§  100.  Eeturn  of  process.  Tlio  original  process  in  actions  or  proceedings 
begun  in  said  justices'  court  shall  be  returnable  and  the  parties  summoned 
required  to  appear  before  said  court. 

Legislation  §  100.      1.   Added  by  Stats.   1911,  made  returnable  before  him   or  may  be   assigned 

p.    442     (see    ante,    Legislation  §  99),     and    then  or  transferred  to  him." 

read:  "The  original  process  in  all  actions  or  pro-  2.  Amended  by  Stats.  1913,  p.  1326. 
ceedings  begun  in  said  justices'  court  shall  be  The  original  §  100  (a  part  of  article  i)  related 
returnable,  and  the  parties  summoned  required  to  places  of  holding  probate  courts,  and  was 
to  appear  before  the  presiding  justice  or  before  enacted  March  11,  1872.  and  repealed  by  Code 
one  of  the. other  justices  of  the  peace  to  be  des-  Amdts.  1880,  p.  21,  in  amending  Part  I. 
ignated  by'the  presiding  justice,  and  each  of  the  ProceSS,  how  returnable.  Under  this  sec- 
justices  shall  have  power,  jurisdiction  and  author-  ..  addp.l  in  IQll  a  summons  com- 
ity to  hear,  try  and  determine  any  action  or  pro-  ^^^D  as  aaueu  in  iWli  a  summons  com 
eeeding  so  commenced  and  which  may  have  been  mandmg     the     detendant     to     appear     and 


§§  101-102a  justices'  courts.  64 

answer   before    the    "justices'    court"    was  justices    designated    and    named    therein. 

insiifSeieut  to  give  jurisdiction:   it  should  Nellis  v.  Justices'  Court,  2U  Cal.  App.  394; 

have  required  him  to  ajspear  before  either  129  Pac.  472. 
the  presiding  justice  or  one  of   the   other 

§  101.  Appointment  of  justices'  clerk.  Said  justices  shall  appoint  a  jus- 
tices' clerk  and  assistant  justices'  clerk,  who  shall  hold  office  at  the  pleasure 
of  said  justices  and  shall  give  such  bond  for  the  faithful  performance  of  the 
duties  of  his  office  as  said  justices  may  require.  Each  justice  shall  also  ap- 
point one  deputy  clerk  who  shall  hold  office  at  the  pleasure  of  the  justice 
appointing  him  and  perform  such  duties  as  shall  be  required  by  said  justice 
or  justices'  clerk.  Said  justices'  clerk,  said  assistant  justices'  clerk  and 
said  deputy  clerks  shall  be  authorized  to  administer  oaths  and  take  and 
certify  affidavits.  And  they  shall  each  be  authorized  to  issue  and  sign  writs, 
summons  and  all  other  processes  in  any  actions  or  proceedings  in  said  jus- 
tices' courts  in  the  name  of  the  presiding  justice  or  the  acting  presiding  jus- 
tice substantially  as  follows : ,  Presiding  Justice.     By ,  Clerk. 

Legislation  §  101.      1.   Added  by   Stats.   1911,  tence,    reading,     "Said    justices'    clerk,    and    said 

p.  442.      See  ante.  Legislation  §  99.  deputy   clerks   shall    be    authorized   to    administer 

2.   Amended  by   Stats.    1913,  p.   1326,    (1)    in  oaths  and  take  and  certify  aiifidavits  and  to  issue 

first    sentence,     adding     "and     assistant    justices'  writs,    summons    and    all  "other    processes    in   any 

'clerk";    (2)  recasting  the  section  after  the  second  action  or  proceeding  in  said  justices'   court." 
sentence,     the    original    section,     after    that    sen- 

§  102.  Duties  of  justices'  clerk.  All  papers  to  be  filed  with  the  clerk,  all 
legal  process  of  every  kind  in  actions  or  proceedings  in  said  justices'  court, 
shall  be  issued  by  one  of  said  justices  or  by  said  justices'  clerk,  assistant 
justices'  clerk  or  deputy  justices'  clerk.  Any  one  of  said  justices  or  the 
said  justices'  clerk,  assistant  justices'  clerk  or  said  deputy  clerks  shall  issue. 
sign  and  certify  in  the  name  of  the  presiding  justice  or  acting  presiding 
justice  to  any  and  all  papers,  transcripts  or  records  which  are  required  to 
be  issued,  signed  or  certified  by  said  justices  of  the  peace.  All  complaints, 
answers  and  other  pleadings  and  papers  required  to  be  filed  in  said  justices' 
court  shall  be  filed  with  said  justices'  clerk  who  shall  keep  a  permanent 
record  of  all  such  actions  and  proceedings  in  said  justices'  docket  now  pro- 
vided by  law  to  be  kept. 

Legislation  §  102.       1.  Enacted  by  Stats.  1911,  vided  by  law  to  be  kept." 

p.    443     (see    ante.    Legislation  §  99),    the    section  2.   Amended  by  Stats.   1913,  p.  1327. 
then    reading,     "§    102.      All    legal    processes     oi 

every  kind  in  actions  or  proceedings  in  said  jus-  Issuance   01    prOCeSS.      Under   this  section 

tices'  court  shall  be  issued  by  the  said  justices'  as  added  in  1911,  the  cleric  cannot  issue  the 

clerk    upon    the    order    of    the    presiding    justice.  summons     unless   the   DresirUncr   ■iimtir.p     nf- 

The    said    justices'    clerk    shall    issue,    sign    and  summons,   unless  tne  presuung  ju&tice,  at- 

certify  to  any  and  all  papers,  transcripts  or  rec-  ter  the  commencement  ot  the  action,  makes 

ords  which  are  required  to  be  issued,  signed  or  an   order,  in   writing,   directing  him  to   do 

certified   by   the   said  justice    of   the   peace      All  ^  general  order  to  the  clerk  to  sign  all 

complaints,     answers     and     other     pleadings     and  •'>                                                  .         .    "     j^  ^    "■ 

papers  required  to  be  filed  in  the  justices'  couit,  necessary      legal      process      IS      insufficient, 

shall  be  filed  with  the  said  justices'  clerk,  who  Nellis  V.  Justices'  Court,  20  Cal.  App.  391: 

shall  keep  a  permanent  record  of  all  such  actions  2''9   Pac     472 
and  proceedings  in  the  justices'  docket,  now  pro- 

§  102a.  Fees.  The  fees  for  issuance  of  all  processes  and  all  other  fees, 
which  are  allowed  by  law  for  any  official  service  of  the  justices  of  the  peace 
shall  be  exacted  and  paid  in  advance  into  the  hands  of  said  justices'  clerk 
and  be  by  him  accounted  for  in  detail  under  oath  at  such  times  as  may  be 
required  by  the  board  of  supervisors,  and  paid  into  the  treasury  of  the 
county,  and  all  fees,  fines  and  penalties  received  or  collected  in  said  justices' 
court  shall  be  and  become  the  property  of  the  county. 

Legislation  S  102a.      Added    by    Stats.     1911, 
p.  443.      See  ante,  Legislation  §  99. 


65  SALARIES  AND  FEES  OF  JUSTICES  AND  CLERKS.  §§  102b,  103 

§  102b.  Salaries  of  justices  and  clerks.  Said  justices  of  the  peace  shall 
receive  a  salary  of  three  thousand  dollars  per  year,  and  said  justices'  clerk 
shall  receive  a  salary  of  eighteen  hundred  dollars  per  year,  and  said  deputy 
clerks  shall  each  receive  a  salary  of  one  thousand  two  hundred  dollars  per 
year,  each  payable  in  like  manner  and  out  of  the  same  funds  and  at  like 
times  as  county  officers  are  paid,  and  such  salaries  provided  to  be  paid  to 
said  justices  of  the  peace  shall  be  in  lieu  of  all  fees  due  and  to  become  due 
such  justices  of  the  peace  for  the  performance  of  any  official  act. 

Legislation  §  102b.     Added    by    Stats.    1911, 
p.  443.      See  ante,  Legislation  §  99. 

§103.  Justices'  courts  and  justices.  In  counties.  In  cities  of  various 
classes.  Jurisdiction.  Qualifications.  Salaries.  Fees.  There  shall  be  at 
least  one  justices'  court  in  each  of  the  townships  of  the  state,  for  which  one 
justice  of  the  peace  must  be  elected  by  the  qualified  electors  of  the  town- 
ships, at  the  general  state  election  next  preceding  the  expiration  of  the  term 
of  office  of  his  predecessor.  In  any  county  where  in  the  opinion  of  the  board 
of  supervisors  the  public  convenience  requires  it,  the  said  board  may,  by 
order,  provide  that  two  justices'  courts  may  be  established  in  any  township, 
designating  the  same  in  such  order;  and  in  such  case,  one  justice  of  the  peace 
must  be  elected  in  the  manner  herein  provided  for  each  of  said  courts.  In 
every  city  or  town  of  the  first  and  one  half  class  there  must  be  five  justices 
of  the  peace,  and  in  every  city  or  town  of  the  second  class  there  must  be  two 
justices  of  the  peace,  and  in  every  city  or  town  of  the  second  and  one  half 
class  there  must  be  one  justice  of  the  peace,  and  in  every  city  or  town  of  the 
third  and  fourth  classes  there  must  be  one  justice  of  the  peace,  to  be  elected 
in  like  manner  by  the  electors  of  such  cities  or  towns  respectively ;  and  such 
justices  of  the  peace  of  cities  or  towns  shall  have  the  same  jurisdiction,  civil 
and  criminal,  as  justices  of  the  peace  of  townships  and  township  justices' 
courts.  Said  justices  of  the  peace  of  cities  and  justices'  courts  of  cities 
shall  also  have  jurisdiction  of  all  proceedings  for  the  violation  of  any  ordi- 
nance of  any  city  in  which  courts  are  established,  both  civil  and  criminal, 
and  of  all  actions  for  the  collection  of  any  license  required  by  any  ordinance 
of  any  such  city  or  town,  and  generally  exercise  all  powers,  duties  and  juris- 
diction civil  and  criminal,  of  police  judges,  judges  of  police  courts,  recorder's 
court  or  mayor's  court,  within  such  city.  No  person  is  eligible  to  the  office 
of  justice  of  the  peace  in  any  city  or  town  of  the  first,  first  and  one  half,  sec- 
ond, second  and  one  half  or  third  class,  who  has  not  been  admitted  to  prac- 
tice law  in  a  court  of  record;  and  no  justice  of  the  peace  is  permitted  to 
practice  law  before  another  justice  of  the  peace  in  the  city,  town  or  county 
in  which  he  resides,  or  to  have  a  partner  engaged  in  the  practice  of  law  in 
an}'^  justices'  court  in  such  city,  town  or  county.  Every  city  justice  of  the 
peace  in  any  city  or  town  of  the  first  and  one  half  class  shall  receive  a  salary 
of  three  thousand  dollars  per  annum,  and  every  city  justice  of  the  peace  in 
any  cit}'^  or  town  of  the  second  class  shall  receive  a  salary  of  three  thousand 
six  hundred  dollars  per  annum,  and  every  city  justice  of  the  peace  in  any 
city  or  town  of  the  second  and  one  half  class  shall  receive  a  salary  of  three 
thousand  dollars  per  annum,  and  every  city  justice  of  the  peace  in  any  city 
or  town  of  the  third  class  shall  receive  a  salary  of  two  thousand  dollars  per 
annum,  and  every  city  justice  of  the  peace  in  any  city  or  town  of  the  fourth 

1  Fair. — 5 


103 


justices'  coukts. 


66 


class  shall  receive  a  salary  of  one  thousand  five  hundred  dollars  per  annum; 
and  each  justice  of  the  peace  shall  be  provided  by  the  city  or  town  authori- 
ties with  a  suitable  office  in  which  to  hold  his  court.  Where  the  compensa- 
tion of  the  justice  of  the  peace  of  any  city  or  town  is  by  salary  it  shall  be 
paid  by  warrants  drawn  each  month  upon  the  salary  fund,  or  if  there  be  no 
salary  fund,  then  upon  the  general  fund  of  such  city  or  town ;  such  warrants 
to  be  audited  and  paid  as  salaries  of  any  other  city  officials.  All  fees  which 
are  chargeable  by  law  for  services  rendered  by  such  city  justice  of  the  peace 
in  cities  or  towns  aforesaid  shall  be  by  them  respectively  collected,  and  on 
the  first  Monday  of  each  month  every  such  city  or  town  justice  shall  make 
a  report,  under  oath,  to  the  city  or  toAvn  treasurer,  of  the  amount  of  fees  so 
by  him  collected,  and  pay  the  amount  so  collected  into  the  city  or  town  treas- 
ury, to  the  credit  of  the  general  fund  thereof.  Said  salaries  shall  be  the  sole 
compensation  of  the  said  city  justice. 


Act  of  stats.  1883,  p.  63.  This  section  super- 
seded the  act  of  Stats.  1883,  p.  63,  fixing  juris- 
diction and  providing  compensation  for  justices 
of  the  peace. 

Justices  of  the  peace. 

1.  Eligibility.    See  post,  §  159. 

2.  Disabilities.    See  post,  §§  170  et  seq. 

3.  Fees.    See  Const.,  art.  vi,  §  15. 

Legislation  §  103.  1.  Added  by  Code  Amdts. 
1880,  p.  84,  and  then  read:  "There  shall  be  at 
least  one  justices'  court  in  each  of  the  townships 
of  the  state,  for  which  one  justice  of  the  peace 
shall  be  elected  by  the  qualified  electors  of  the 
township,  at  the  general  state  election  next  pre- 
ceding the  expiration  of  the  term  of  office  of  his 
predecessor;  provided,  that  in  any  county  where, 
in  the  opinion  of  the  board  of  supervisors  the 
public  convenience  requires  it,  the  said  board 
may,  by  order,  provide  that  two  justices'  courts 
may  be  established  in  any  township,  designating 
the  same  in  such  order,  and  in  such  case  one 
justice  of  the  peace  shall  be  elected  in  the  man- 
ner herein  provided  for  each  of  such  courts.  In 
every  city  having  ten  thousand  and  not  more 
than  twenty  thousand  inhabitants  there  shall  be 
one  justice  of  the  peace,  and  in  every  city  having 
twenty  thousand  and  not  more  than  one  hundred 
thousand  inhabitants  two  justices  of  the  peace,  to 
be  elected  in  like  manner  by  the  electors  of  such 
cities  resnectively.  No  person  shall  be  eligible 
to  the  office  of  justice  of  the  peace  in  any  city 
liaving  over  ten  thousand  inhabitants  who  has 
not  been  admitted  to  practice  law  in  a  court  of 
record  ;  and  no  justice  of  the  peace  shall  be  per- 
mitted to  practice  law  before  any  other  justice 
of  the  peace  in  the  city  or  county  in  which  he 
resides,  or  to  have  a  partner  engaged  in  the 
practice  of  law  in  any  justices'  court  in  such  city 
or  county.  Every  justice  of  the  peace  in  any 
city  having  over  ten  thousand  inhabitants  shall 
receive  an  annual  salary  of  two  thousand  dollars 
per  annum,  and  shall  be  provided  by  the  city 
authorities  with  a  suitable  office  in  which  to  hold 
his  court.  All  fees  which  are  by  law  chargealjle 
for  services  rendered  by  such  justices  of  the 
peace  in  the  cities  aforesaid,  shall  be  by  them 
respectively  collected,  and  on  the  first  Jfonday  in 
each  month  every  such  city  justice  of  the  peace 
shall  make  report,  under  oath,  to  the  city  treas- 
urer, of  the  amount  of  fees  so  by  him  collected, 
and  pay  the  amount  so  reported  into  the  city 
treasury,  to  the  credit  of  the  general  fund 
thereof."  ,    ^    , 

2.  Amended  by  Stats.  1891,  p.  456,  (1)  by 
changing  the  second  sentence  to  read,  "In  every 
city  having  fifteen  thousand  and  not  more  than 
thirty-four  thousand  inhabitants,  there  shall  be 
one  justice  of  the  peace,  and  in  every  city  having 
thirty-four  thousand  and  not  more  than  one  hun- 
dred thousand  inhabitants,  two  justices  of  the 
peace,  to  be  elected  in  like  manner  by  the  electors 
of  such  cities,  respectively;  and  such  justices 
of  the  peace  of  cities,  and  justice's  courts  of 
cities,  shall  have  the  same  iurisdiction,  civil  and 


criminal,  as  justices  of  the  peace  of  townships 
and  township  justice's  courts";  and  (2)  by 
changing  "ten  thousand  inhabitants,"  in  both 
places  where  subsequently  printed,  to  "fifteen 
thousand  inhabitants." 

3.  Amended  by  Stats.  1899,  p.  88,  by 
changing  the  section,  after  the  first  sentence,  to 
read,  "In  every  city  or  town  of  the  third  and 
fourth  class  there  shall  be  one  justice  of  the 
peace,  and  in  every  city  or  town  of  the  second 
class  there  shall  be  two  justices  of  the  peace,  to 
be  elected  in  like  manner  by  the  electors  of  such 
cities,  or  towns,  respectively;  and  such  justices 
of  the  peace  of  cities  or  towns,  and  justices' 
courts  of  cities  or  towns,  shall  have  the  same 
jurisdiction,  civil  and  criminal,  as  justices  of  the 
peace  of  townships,  and  township  justices'  courts. 
Said  justices  of  the  peace  of  cities,  and  justices' 
courts  of  cities,  shall  also  have  jurisdiction  of 
all  proceedings  for  the  violation  of  any  ordinance 
of  any  city  in  which  courts  are  established,  both 
civil  and  criminal,  and  of  all  actions  for  the  col- 
lection of  any  license  required  by  any  ordinance 
of  any  such  city  or  town.  No  person  shall  be 
eligible  to  the  office  of  justice  of  the  peace  in 
any  city  or  town  of  the  first,  second,  or  third 
class  who  shall  not  have  been  admitted  to  prac- 
tice law  in  a  court  of  record;  and  no  justice  of 
the  peace  shall  be  permitted  to  practice  law  be- 
fore another  justice  of  the  peace  in  the  city,  or 
town,  and  county  in  which  he  resides,  or  to 
have  a  partner  engaged  in  the  practice  of  law 
in  any  justice's  court  in  such  city,  or  town,  and 
county.  Every  city  justice  of  the  peace  in  any 
city  or  town  of  the  fourth  class  shall  receive  a 
salary  of  fifteen  hundred  dollars  per  annum,  and 
every  city  justice  of  the  peace  in  any  city  or 
town  of  the  second  or  third  class  shall  receive  a 
salary  of  two  thousand  dollars  per  annum,  and 
each  justice  of  the  peace  shall  be  provided  by 
the  city  or  town  authorities  with  a  suitable  office 
in  which  to  hold  his  court.  All  fees  which  are 
chargeable  by  law  for  services  rendered  by  such 
city  justices  of  the  peace  in  the  cities  or  towns 
aforesaid  shall  be  by  them,  respectively,  col- 
lected; and  on  the  first  Monday  of  each  month 
every  such  city  or  town  justice  of  the  peace  shall 
make  a  report,  under  oath,  to  the  city  or  town 
treasurer,  of  the  amount  of  fees  so  by  him  col- 
lected, and  pay  the  amount  so  collected  into  the 
city  or  town  treasury,  to  the  credit  of  the  gen- 
eral fund  thereof.  Said  salaries  shall  be  the  sole 
compensation  of  said  city  justices." 

4.  Amended  by  Stats.  1901,  p.  100;  (1)  in 
the  first  sentence,  (a)  "shall"  is  changed  to 
"must"  twice,  where  printed,  (b)  the  words 
"provided,  that"  are  stricken  out,  and  a  new- 
sentence  begun  with  the  words  "In  any  county," 
(c)  the  words  "provided  that  two"  are  changed 
to  "provide  that  two";  (2)  in  the  second  sen- 
tence, (a)  the  words  "the  third  and  fourth  class 
there  shall  be  one  justice"  are  chan','ed  to  "the 
third  and  the  fourth  class  there  must  be  one 
justice";    (b)    the   words   "the   second   class   there 


67 


SALARIES  AND  FEES  OF  JUSTICES. 


§103 


shall  bo  two  justices"  are  chanRed  to  "the  first 
and  one  half  and  the  si'cond  class  there  must  l>o 
two  justices";  (3)  in  snitcncc  bci;inninK  "Said 
justices,"  after  tlie  words  "such  city  or  town," 
there  is  added  the  clause,  "and  generally  exercise 
all  powers,  duties  and  jurisdiction,  civil  and 
criminal,  of  police  judges,  judges  of  the  police 
court,  recorder's  court,  or  mayor's  court  within 
euch  city"  ;  (4)  entire  sentence  beginning  "Xo 
person  shall"  is  chanjred  to  read,  "Xo  person  is 
eligible  to  the  oflice  of  justice  of  the  peace  in 
any  city  or  town  of  the  first,  first  and  one  half, 
second  or  third  class  who  has  not  been  admitted 
to  practice  law  in  a  court  of  record;  and  no 
justice  of  the  peace  is  permitted  to  practice  law 
before  another  justice  of  the  peace  in  the  city, 
town  or  county  in  which  he  rcKidts.  or  to  have 
a  partner  engaged  in  the  practice  of  law  in  any 
justice's    court    in    such    city,    town    or    county"  ; 

(5)  in  sentence  be,^inning  "Every  city  justice," 
the  last  clause,  beginning  "and  each  justice,"  is 
changed  to  read,  preceded  by  a  semicolon,  "and 
every  city  justice  of  the  peace  in  any  city  or 
town  of  the  second  or  third  class  shall  receive 
a  salary  of  two  thousand  dollars  per  annum; 
and  every  city  justice  of  the  peace  in  any  city 
or  town  of  the  first  and  one  half  class  shall 
receive  a  salary  of  twenty-four  hundred  dollars 
per  annum;  and  each  city  justice  of  the  peace 
shall  be  provided  by  the  city  or  town  aiithorities 
■with  a  suitable  office  in  which  to  hold  his  court"; 

(6)  following  the  words  "his  court,"  a  new  sen- 
tence is  added,  "Where  the  compensation  of  the 
justice  of  the  peace  of  any  city  or  town  is  by 
salary,  it  shall  be  paid  by  warrants  drawn  each 
month  upon  the  salary  fund,  or,  if  there  be  no 
salary  fund,  then  upon  the  general  fund,  of  such 
city  or  town ;  such  warrants  to  be  audited  and 
paid  as  salaries  of  other  city  oScials." 

5.  Amended  again  by  s'lnts.  1901,  p.  119 
(code  commission  amendment)  ;  unconstitutional. 
See  note  ante,  §  5. 

6.  Amended  by  Stats.  1003,  p.  210,  by  (1) 
changing,  in  the  last  sentence,  the  words  "Said 
salaries"  to  "Said  salary,"  and  (2)  adding  the 
proviso,  at  the  end  of  the  section,  "provided, 
that  the  provisions  of  this  section  as  to  the 
establishment  of  justices'  courts  and  city  justices 
of  the  peace  in  cities  or  towns,  shall  not  apply 
to  cities  or  towns  in  which  recorders'  courts  or 
city  or  town  recorders  are  now  or  may  hereafter 
be  established,  and  city  justices'  courts  now  ex- 
isting in  such  cities  or  towns  are  hereby  abol- 
ished." 

7.  Amended  by  Stats.  1905,  pp.  49,  50,  (1) 
in  the  sentence  beginning  "In  every  city  or  town," 
the  words  "first  and  one  half  and  the  second 
class"  were  changed  to  "first  and  one  half  class 
there  must  be  three  justices  of  the  peace,  and 
[in]  every  city  or  town  of  the  second  class"; 
(2)  the  sentence  fixing  the  salary  was  am- nded 
to  read,  "Every  cit}'  justice  of  the  peace  in  any 
city  or  town  of  the  fourth  class  shall  receive  a 
salary  of  fifteen  hundred  dollars  per  annum,  and 
every  city  justice  of  the  peace  in  any  city  or 
town  of  the  third  class  shall  receive  a  salary  of 
two  thousand  dollars  per  annum;  and  every  city 
justice  of  the  peace  in  any  city  or  town  of  the 
first  and  one  half  class  and  the  second  class[,| 
shall  receive  a  salary  of  twenty-four  hundred 
dollars  per  annum;  and  each  city  justice  of  the 
peace  shall  be  provided  by  the  city  or  town 
authorities  with  a  suitable  office  in  which  to  hold 
his  court";  and  (.3)  the  proviso  at  the  end  of 
the  section  was  stricken  out.  There  were  two 
amendments  of  §  103  enacted  on  the  same  day 
(March  3,  1905);  the  first  (Stats.  1905,  p.  49) 
was  to  go  into  effect  immediately,  and  the  second 
(Stats.  1905,  p.  50)  on  the  first  Monday  after 
the  first  day  of  .January,  1907;  they  were  iden- 
tical, except  for  the  changes  indicated  supra  by 
brackets,  the  second  amendment,  on  page  50, 
being  printed  minus  these  changes,  and  contain- 
ing, also,  several  unimportant  typographical  varia- 
tions. 

8.  Amended  by  Stats.  1907,  p.  190,  by 
changing,  in  the  sentence  beginning  "In  every 
city  or  town,"  the  words  "there  must  be  three 
justices"  to  "there  must  be  four  justices." 

9.  Amended  by  Stats.  1909,  p.  47,  (1)  the  first 


two  sentences  reading  the  same  as  the  present 
amendment  (1911);  (2)  the  third  sentence  then 
reailing,  "In  every  city  or  town  of  the  third  and 
the  fourth  class,  there  must  be  one  ju.stice  of  the 
peace,  and  in  every  city  or  town  of  the  first 
and  one  half  class  there  must  be  four  justices 
of  the  peace,  and  in  evury  city  or  town  of  the 
second  class  there  must  be  two  justices  of  the 
peace,  to  be  elected  in  like  manner  by  the  electors 
of  such  cities  or  towns  res))c:ctively ;  and  suili 
justic»8  of  the  peace  of  cities  or  towns  shall 
have  the  same  jurisdiction,  civil  and  criminal,  as 
justices  of  the  peace  of  townships,  and  township 
justices'  courts";  (3)  the  fourth  sentence  had 
(a)  a  comma  after  "cities,"  where  it  is  first 
printed  in  the  sentence,  and  (b)  the  definite 
article  "the"  before  "polics  court,"  in  the  last 
clause;  (4)  the  fifth  sentence,  beginning  "Xo 
person,"  did  not  have  the  words  "second  and 
one  half"  in  the  first  clause;  (5)  the  sixth  sen- 
tence, down  to  the  last  clause,  reading,  "Every 
city  justice  of  the  peace  in  any  city  or  town  of 
the  fourth  class  shall  receive  a  salary  of  fifteen 
hundred  dollars  per  annum,  and  every  city  jus- 
tice of  the  peace  in  any  city  or  town  of  the  third 
class  shall  receive  a  salary  of  two  thousand 
dollars  per  anmiiu,  and  every  city  justice  of  the 
peace  in  any  city  or  town  of  the  first  and  one 
half  class  shall  receive  a  salary  of  three  thou- 
sand dollars  per  annum  and  every  city  justice 
of  the  peace  in  any  city  or  town  of  the  second 
class  shall  receive  a  salary  of  thirty-six  hundred 
dollars  per  annum,"  the  last  clause  reading  the 
same  as  the  present  amendment;  (6)  the  seventh 
sentence,  beginning  "Where  the  compensation," 
did  not  have  the  word  "any"  before  "other  city 
ofiicials,"  at  the  end  thereof;  (7)  the  eighth 
sentence  had  the  words  "of  the  peace,"  aiter 
"town  justice";  (8)  the  last  sentence  then  read, 
"Said  salaries  shall  be  the  sole  compensation  of 
said   city  justices." 

To'R'nship  justices.  This  section  provides 
for  the  selection  of  township  justices  (Peo- 
ple V.  Sands,  102  Cal.  12;  36  Pac.  404; 
People  V.  Cobb,  133  Cal.  74;  65  Pac.  325), 
and  also  for  their  tenure  of  office,  which  la 
four  years.  Bailey  v.  Board  of  Supervi- 
sors, G6  Cal.  10;  56  Am.  Rep.  73;  4  Pac. 
768;  Milner  v.  Eeibenstein,  85  Cal.  593;  24 
Pac.  935;  People  v.  Cobb,  133  Cal.  74;  65 
Pac.  325.  A  justice  of  the  peace,  holding 
office  by  virtue  of  general  laws,  is  a  '"part 
of  the  constitutional  judicial  system  of  the 
state."  Graham  v.  Mayor  and  Board  of 
Trustees,  151  Cal.  465;  91  Pac.  147;  Pcter- 
baugh  V.  Wadham,  162  Cal.  611;  123  Pac. 
804. 

Number  of  justices  of  the  peace.  Where 
a  judicial  township  consists  entirely  of  a 
city  having  a  population  of  more  than  five 
thousand,  and  is  provi.led,  by  charter,  with 
a  city  justice  of  the  peace  appointed  by 
the  city  council,  such  township  is,  under 
§  4101  of  the  Political  Code,  entitled  to 
have  but  one  justice  of  the  peace  elected 
at  a  general  election.  Odell  v.  Kihn,  19 
Cal.  App.  713;  127  Pac.  802.  If  a  town- 
ship is  entitled  to  two  justices  of  the 
peace,  and  two  are  in  fact  voted  for  at  an 
election,  two  should  be  declared  elected, 
though  the  proclamation  called  for  the 
election  of  but  one.  If  only  one  justice 
is  4n  fact  voted  for  at  an  election,  when 
two  should  be  elected,  there  is  a  failure  to 
choose  a  second  justice.  Almon  v.  McEvoy, 
19  Cal.  App.  141;   124  Pac.  874. 

De  facto  officer.  The  incumbent  is  en- 
titled to  discharge  the  duties  and  receive 


§  1031/2 


justices'  courts. 


68 


the  compensation  until  his  successor  quali- 
fies, and  also,  on  the  absolute  failure  of  his 
successor  to  qualify,  to  hold  the  office  for 
the  entire  term  for  which  his  successor 
was  elected.  French  v.  Santa  Clara 
County,  69  Cal.  519;  11  Pac.  30. 

City  justices.  This  section  also  provides 
for  the  election  of  city  justices,  and  for 
their  tenure  of  office,  which  is  fixed  at  two 
years.  Ex  parte  Henshaw,  73  Cal.  486;  la 
Pac.  110;  Alilner  v.  Reibenstein,  85  Cal. 
593;  2i  Pac.  935;  People  v.  Sands,  102  Cal. 
12;  36  Pac.  404.  All  city  justices'  courts 
in  the  state,  whether  in  cities  with  free- 
holders' charters,  or  in  those  organized 
under  the  general  law,  are  dependent  upon 
ihis  section,  and  therefore  upon  the  classi- 
fication act,  for  a  valid  existence  (In  re 
Johnson,  6  Cal.  App.  734;  93  Pac.  199); 
and  where  they  exist  under  a  special  char- 
ter, granted  prior  to  the  adoption  of  the 
present  constitution,  they  are  not  dis- 
turbed or  superseded.  Ex  parte  Arm- 
strong, 84  Cal.  655;  24  Pac.  598.  In  its 
broadest  sense,  the  word  "elected"  means, 
merely,  selected;  hence,  if  a  justice  of  the 
peace  has  been  selected  by  the  votes  of 
several  members  of  a  city  council,  it  is 
tantamount  to  an  election.  Odell  v.  Eihn, 
19  Cal.  App.  713;  127  Pac.  802. 

Salary  of  justice  of  the  peace.  The  inhi- 
bition of  the  constitution  against  increas- 
ing an  officer's  salary  has  reference  only 
to  the  compensation  as  fixed  by  law  when 
his  term  of  office  began;  the  legislature 
has  power,  pending  the  term,  to  lower  the 
compensation,  and  afterwards  raise  it  to  a 
figure  not  in  excess  of  that  fixed  when  the 
term  began.  Puterbaugh  v.  Wadham,  162 
Cal.  611;  123  Pac.  804.  The  prohibition  of 
§  9  of  article  xi  of  the  constitution, 
against  increasing  an  officer's  salary,  is 
directed  to  the  legislature:  it  has  no  appli- 
cation to  an  automatic  increase  in  salary, 
due  to  the  passing  of  a  city,  not  by  legis- 
lative act,  but  by  increased  population, 
from  one  class  to  another.  Puterbaugh  v. 
Wadham.  162  Cal.  611;  123  Pac.  804.  A 
justice  of  the  peace  of  a  city  of  the  second 
and  one  half  class  had  no  right  to  salary 

§  103|.  Clerk  to  justices'  court  in  cities  of  second  and  one  half  and  third 
classes,  duties,  etc.  Every  city  justices'  court  in  any  city  or  town  of  the 
second  and  one  half  class  and  the  third  class  shall  have  a  clerk,  who  shall  be 
appointed  by  the  justice  of  the  peace  of  said  court,  subject  to  the  approval 
of  the  board  of  supervisors  of  the  count}'-,  and  shall  hold  office  during  the 
pleasure  of  said  justice.  Said  clerk  shall  give  a  bond  in  the  sum  of  five 
thousand  dollars,  with  at  least  two  sureties  to  be  approved  by  the  mayor, 
conditioned  for  the  faithful  discharge  of  the  duties  of  his  office.  He  shall 
keep  a  record  of  the  proceedings  of  said  court  and  issue  all  process  ordered 
by  the  justices  of  said  court,  and  receive  and  pay  into  the  city  treasury  all 
fines,  forfeitures  and  fees  paid  into  said  court.  Pie  shall  render  each  month 
to  the  city  council  an  exact  account  under  oath  of  all  fines,  forfeitures  and 
fees  paid  and  collected.    He  shall  prepare  bonds,  justify  bail,  when  the 


until  the  amendment  of  this  section  in 
1911.  Puterbaugh  v.  Wadham,  162  Cal. 
6H;  123  Pac.  804.  The  salary  of  city  jus- 
tices is  paid  by  the  city,  and  payments  are 
made  monthly.  Jenks  v.  Council  of  City 
of  Oakland,  58  Cal.  576;  Los  Angeles 
County  V.  Los  Angeles,  65  Cal.  476;  4  Pac. 
453;  Milner  v.  Eeibenstein,  85  Cal.  593;  24 
Pac.  935. 

City  justices  under  charters.  As  to 
cities  acting  under  a  freeholders'  charter, 
a  city  justice  of  the  peace  is  the  same  as  a 
township  justice,  simply  a  county  or  town- 
ship officer  performing  no  municipal  func- 
tions whatever.  Graham  v.  Mayor  and 
Board  of  Trustees,  151  Cal.  465;  91  Pac. 
147.  Justices'  courts  in  municipalities  are 
part  of  the  constitutional  judiciary.  Peo- 
ple V.  Eansom,  58  Cal.  558;  People  v. 
Sands,  102  Cal.  12;  36  Pac.  404;  Kahn  v. 
Sutro,  114  Cal.  316;  33  L.  R.  A.  620;  46 
Pac.  87;  In  re  Mitchell,  120  Cal.  384;  52 
Pac.  799.  A  police  court  established  by  a 
city  under  a  freeholders'  charter  is  purely 
a  municipal  affair,  and  exempt  from  legis- 
lative control.  Graham  v.  Mavor  and 
Board  of  Trustees,  151  Cal.  465;"  91  Pac. 
147.  The  prosecution  of  offenses  against 
a  state  law  or  a  county  ordinance  is  not  a 
municipal  dut}';  and  the  legislature  cannot 
impose  the  cost  of  performing  this  func- 
tion upon  a  city.  Fleming  v.  Hance,  153 
Cal.  16'2;  94  Pac.  620.  The  requirement  to 
furnish  city  justice  of  the  peace  with  a 
suitable  office  in  which  to  hold  his  court,  is 
not  applicable  to  a  city  having  a  freehold- 
ers' charter,  since  the  constitutional 
amendments  of  1896.  Graham  v.  Mayor 
and  Board  of  Trustees,  151  Cal.  465;  91 
Pac.  147. 

Commitment  on  imperfect  complaint. 
When  a  charge  has  been  examined  by  a 
magistrate,  and  the  evidence  warrants  an 
order  holding  the  defendant  to  answer,  im- 
perfections in  the  complaint  are  cured, 
and  the  commitment  is  legal.  People  v. 
Warner,  147  Cal.  546;  82  Pac.  196;  Ex 
parte  Stevens,  16  Cal.  App.  424;  117  Pac. 
1127. 


68a         justices'  clerks — in  counties  of  the  seventh  class.     §§  103a,  103b 

amount  has  been  fixed  by  the  court  or  justice,  and  may  administer  and  cer- 
tify oaths  and  shall  remain  in  the  courtrooms  of  said  court  during  court 
hours  and  during  such  reasonable  times  thereafter  as  may  be  necessary  for 
the  proper  performance  of  his  duty.  He  shall  have  custody  of  all  records 
and  papers  of  said  justice  court.  Every  clerk  of  the  justices'  court  in  any 
city  or  town  of  the  second  and  one  half  class  shall  receive  an  annual  salary 
of  one  thousand  six  hundred  dollars,  and  every  clerk  of  the  justices'  court 
in  any  city  or  town  of  the  third  class  shall  receive  an  annual  salary  of  one 
thousand  two  hundred  dollars;  said  salaries  shall  respectively  be  payable 
in  equal  monthly  installments  out  of  the  treasury  of  said  cities  and  said 
salaries  shall  be  the  full  compensation  for  all  services  rendered  by  the  clerks 
of  said  courts. 

Legislation  §  1031/2-       1.    Added       by       St<at3.  He    shall    also    render    each    month    to    the    city 

1009,    p.    268,    boinK    then    entitled    "Clerks    in  council,    an    exact     account,    under    oath,     of    all 

cities    of    the    third    class,"    and    the    text    then  tines,     forfeitures    and    fees    paid    and    collected, 

reading,    "§    103 1/^.      Every   city   justice   court   in  He    shall    prepare    bonds,    justify    bail    when    the 

any   city  or  town  of  the  third  class  shall   have   a  amount   has   been   fixed   by   said    court    or   justice 

clerk,    who   shall   be   appointed   by   the   justice   of  and  may   administer  and   certify   oaths,    and   shall 

said   court,   siibject   to   the   approval   of   the   board  remain    in    the    courtrooms    of    said    court    during 

of  supervisors  of  the  county,  and  shall  hold  office  court    hours    and    during    such    reasonable    times 

during   the   pleasure   of   said   justice.      Said   clerk  thereafter    as    may    be    necessary    for    the    proper 

shall    give    a    bond    in    the    sum    of    five    thousand  performance  of  his  duty.      He  shall  have  custody 

dollars,  with  at  least  two  sureties,  to  be  ap-  of  all  records  and  papers  of  said  justice  court." 
proved  by  the  mayor,  conditioned  for  the  faithful  3.   Amended    by    Stats.     1911,    p.    J.214,    and 

discharge    of    the    duties    of    his    office;    he    shall  differed  from  the  present  text,   in  having,    (1)    in 

receive    an    annual    salary    of    one    thousand    two  the  third  sentence,  "justice  of  said  court,"  instead 

hundred    dollars,    payable    in    equal    monthly    in-  of    "justices    of    said    court";     (2)     in    the    fifth 

Btallments  out  of  the  treasury  of  said  city,  which  sentence,   beginning   "He  shall   prepare  bonds,"   a 

salary     shall    be    the    full    compensation    for    all  comma   after   "oaths"    (as   to  the   meaning   of   the 

services     rendered     by     him;     he     shall     keep     a  change   in   1913,    quaere);    (3)    in  the   first   clause 

record  of  the  proceedings  of  said  court  and  issue  of    the    last    sentence,     "one    thousand    four    hun- 

all   process   ordered   by   the  justice   of   said   court,  dred     dollars,"     instead     of     "one     thousand     six 

and    receive    and    pay    into    the    city    treasury    all  hundred  dollars." 
fines,    forfeitures    and    fees   paid    into    said    court.  3.   Amended   by   Stats.    1913,   p.   68. 

§  103a.  Justices'  clerks,  additional  pov^ers  of.  In  every  township 
wherein  provision  is  made  by  law  for  a  clerk,  or  clerks,  for  the  justice  of 
the  peace,  or  the  justices  of  the  peace,  of  such  township,  said  clerk  or 
clerks,  in  addition  to  the  other  powers  conferred  upon  them  by  law,  shall 
have  power  to  administer  and  certify  oaths  to  affidavits,  and  all  papers, 
documents  or  instruments  used  in,  or  in  connection  with,  the  civil  actions  or 
proceedings  in  such  justices  courts  and  to  issue  summons  and  other  writs 
in  civil  actions  in  said  courts  in  the  name  of  the  justice  before  whom  the 
same  is  pending  or  out  of  whose  court  the  same  is  issued. 

Legislation  §  103a.      Added    by    Stats.    1915, 
p.  942. 

§  103b.  Justices '  clerks  in  counties  of  the  seventh  class,  appointed  when, 
and  powers  and  duties  of.  In  any  township  in  a  county  of  the  seventh 
class  having  more  than  one  justice  of  the  peace  as  provided  in  section  one 
hundred  three  of  the  Code  of  Civil  Procedure,  where  in  the  opinion  of  the 
board  of  supervisors  of  the  county,  the  public  convenience  requires  it,  said 
board  may,  by  order,  authorize  a  justices'  court  clerk  and  necessary  dep- 
uties or  a  justice's  court  clerk  for  each  justice  of  the  peace  for  such  town- 
ship to  be  appointed,  maintained  and  supported  as  hereinafter  provided. 
Said  justices  when  so  authorized  as  hereinabove  provided  shall  appoint  a 
justices'  clerk,  who  shall  hold  office  at  the  pleasure  of  said  justices,  and 
shall  give  such  bond  for  the  faithful  performance  of  the  duties  of  his  office 
in  the  sum  of  one  thousand  dollars.  Each  justice  shall  also  appoint  one 
deputy  clerk  when  so  authorized  who  shall  hold  office  at  the  pleasure  of 


§  103b  justices'  courts.  68b 

the  justice  appointing  him  and  perform  such  duties  as  shall  be  required  by- 
said  justices  and  justices'  clerk.  Such  justices'  clerk,  and  such  deputy 
clerks  shall  be  authorized  to  administer  oaths,  take  and  certify  affidavits ; 
and  they  shall  each  be  authorized  to  issue  and  sign  writs,  summons,  and  all 
other  process  in  any  action  or  proceeding  in  the  justice  court  of  the  town- 
ship for  which  they  are  appointed,  or  pending  before  any  justice  of  the 
peace  of  said  township  in  the  name  of  the  justice  before  whom  the  same  is 
pending  or  out  of  whose  court  the  same  is  issued,  which  shall  be  in  sub- 
stantially the  following  form :  ■ ,  Justice  of  the  Peace. 

,  Clerk. 

By ,  Deputy  Clerk. 

All  legal  papers  of  every  kind  in  actions  or  proceedings  in  such  justices' 
court  shall  be  issued  by  the  said  justices'  clerk  in  the  manner  and  form 
hereinabove  set  out.  The  said  justices'  clerk  shall  issue,  sign  and  certify 
to  any  and  all  papers,  transcripts  or  records  which  are  required  to  be  is- 
sued, signed  or  certified  by  the  said  justice  of  the  peace.  All  complaints, 
answers  and  other  pleadings  and  papers  required  to  be  filed  in  said  jus- 
tices' court  shall  be  filed  with  such  justices'  clerk  who  shall  keep  a  per- 
manent record  of  all  such  actions  and  proceedings  in  the  justices'  docket, 
now  provided  by  law  to  be  kept  by  the  justice ;  provided,  that  in  the  event 
that  the  said  board  of  supervisors  shall  deem  one  justice's  clerk  for  each 
justice  of  the  peace  sufficient  to  perform  the  duties  hereinabove  set  out, 
said  board  shall  authorize  the  appointment  of  one  justice's  clerk  for  each 
justice  of  the  peace  and  one  clerk  shall  be  appointed  by  each  of  said  jus- 
tices and  no  deputy  clerks  shall  be  in  such  event  appointed.  And  each  of 
said  clerks  so  appointed  shall  exercise  the  powers  and  fulfill  the  duties 
heretofore  provided  for  a  justice 's  clerk  and  shall  receive  a  salary  of  twelve 
hundred  dollars  per  year  each.  All  fees  for  the  issuance  of  all  process,  or 
other  fees,  which  are  by  law  allowed  for  any  official  service  of  the  justice 
of  the  peace  shall  be  exacted  and  paid  in  advance  into  the  hands  of  the 
justice's  clerk,  which,  together  with  all  fees,  fines,  or  penalties  received  in 
said  justice's  court  shall  be  by  him  accounted  for  in  detail  under  oath  in 
the  manner  provided  by  law  and  paid  into  the  treasury  of  the  county  at 
the  time  and  in  the  manner  as  now  required  by  law  of  the  justice  of  the 
peace.  Said  justices '  clerk  shall  receive  a  salary  of  fifteen  hundred  dollars 
per  year  and  said  deputy  clerks  shall  each  receive  a  salary  of  twelve  hun- 
dred dollars  per  year,  which  shall  be  payable  in  like  manner  and  out  of 
the  same  funds  and  at  like  times  as  county  officers  are  paid.  The  board  of 
supervisors  shall  provide  in  a  convenient  locality  a  suitable  office  for  the 
justices'  clerk.  The  said  justices'  clerk  shall  be  in  attendance  at  his  re- 
spective office  in  the  discharge  of  official  business  daily  from  nine  a.  m.  until 
five  p.  m.  Nothing  in  this  section  shall  in  any  way  interfere  with  or  termi- 
nate the  term  of  office  of  any  person  now  holding  the  office  of  justice  of 
the  peace. 

Legislation  §  103b.     Added    by    Stats.    1915, 
p.  303. 


69 


COURT  HELD  WHERE  AND  WHEN — TERRITORIAL  JURISDICTION.       §§  104-106 


§  104.  Courts,  where  held.  A  justices'  court  may  be  held  at  any  place 
selected  by  the  justice  holding  the  same,  in  the  township  for  which  he  is 
elected  or  appointed;  and  such  court  shall  be  always  open  for  the  trans- 
action of  business. 


Hours  of  justice.    See  aute,  § 
Legislation  8  104.      Added      by 


Code 
1S80,    p.    34;     based    on    original    code 
118,    which   were    based    on    Stats.    1863, 
Original  code    §  112   read:       J'-ivery  justice  of   the 
peace   must  hold  a  justice's  court  in  the   town   or 
cit.v    in    which    he    is    elected."      And    §  118    read: 


Amdts. 
§§  112, 
p.    340. 


"These  courts  may  be  held  at  any  place  selected 
by  the  justice  holding  the  same,  in  the  township 
or  city  for  which  he  is  elected,  and  they  are 
alwnvs  open  for  the  transaction  of  business." 

The  original  §  104  provided  for  the  continu- 
ance of  the  municipal  criminal  court  of  San 
Francisco. 


§  105.  What  justice  may  hold  court  for  another.  A  justice  of  the  peace 
of  any  toAvnship,  or  city,  or  city  and  county  may  hold  the  court  of  any  other 
justice  of  the  peace  of  any  township,  city  and  county,  or  city  within  the  same 
county,  at  his  written  request,  and  while  so  acting  shall  be  vested  with  all 
the  powers  of  the  justice  for  whom  he  so  holds  court.  In  which  case  the 
proper  entry  of  the  proceedings  before  the  attending  justice  subscribed  by 
him  shall  be  made  in  the  docket  of  the  justice  for  whom  he  so  holds  the 
court ;  and  the  same  shall  be  prima  facie  evidence  of  such  proceedings,  and 
form  and  become  a  part  of  the  record  of  any,  or  any  part  of  any  and  all 
actions,  causes,  or  proceedings  had  before  such  attending  justice  Avhile  so 
holding  the  court. 


With  respect  to  superior  courts,  see  ante,  §  71. 

Legislation  §  105.  1.  Added  by  Code  Amdts. 
1880,  p.  34,  and  then  read:  "A  justice  of  the 
peace  of  any  township  may  hold  the  court  of  any 
other  justice  of  the  peace  of  the  same  county,  at 
his  request,  and  while  so  acting  shall  be  vested 
with  the  power  of  the  justice  for  whom  he  so 
holds  court,  in  which  case  the  proper  entry  of 
the  proceedings  before  the  attending  justice,  sub- 
scribed by  him,  shall  be  made  in  the  docket  of 
the  justice  for  whom  he  so  holds  the  court." 

2.  Amended  by  Stats.   1897.  p.  8. 

The  original  §  105  provided  for  the  election 
of  the  judge  of  the  municipal  criminal  court  of 
San  Francisco. 

Justice  holding  court  outside  his  town- 
ship or  city.  Power  is  granted  to  justices, 
by  this  section,  to  hold  or  conclude  pre- 
liminary examinations  outside  of  their 
townships  or  cities.  People  v.  Sansome,  98 
Cal.  235;  33  Pac.  202;  People  v.  Sehorn, 
116  Cal.  503;  48  Pac.  495.  If  there  is  any 
irregularity  in  the  proceedings  to  secure 
the  justice,  it  does  not  affect  the  substan- 


tial rights  of  the  accused,  and  furnishes  no 
grouuds  for  quashing  the  information. 
People  V.  Sehorn,  116  Cal.  503;  48  Pac. 
495;  People  v.  Rodrigo,  69  Cal.  601;  11 
Pac.  481. 

Entry  in  docket.  The  order  requesting 
another  justice  to  act  need  not  set  forth 
the  reasons  therefor;  and  a  failure  to  sub- 
scribe the  docket  by  such  other  justice,  as 
required  by  this  section,  does  not  affect 
the  substantial  rights  of  the  accused:  this 
requirement  is  merely  directory,  and  not 
mandatory.  People  v.  Sehorn,  116  Cal.  503; 
48  Pac.  495. 

Effect  of  failure  to  comply  with  section. 
A  failure  to  follow  the  course  prescribed 
by  this  section  renders  the  judgment  in- 
valid, as  the  justice  of  the  peace  acquires 
no  jurisdiction.  Harlan  v.  Gladding,  7  Cal. 
App.  49;  93  Pac.  400. 


§  106.  Territorial  extent  of  civil  jurisdiction.  The  civil  jurisdiction  of 
justices'  courts  extends  to  the  limits  of  the  towmships  in  which  they  are 
held;  but  mesne  and  final  process  of  any  justices'  court  in  a  county  may  be 
issued  to  and  served  in  any  part  of  the  county. 

Territorial  jurisdiction.  Where  a  party 
has  contracted  to  perform  an  obligation  at 
a  particular  place,  and  resides  in  a  differ- 
ent county,  an  action  to  recover  damages 
for  a  breach  of  this  contract  may  be 
brought  either  in  the  township  or  city 
where  the  contract  was  to  be  performed, 
or  in  that  in  which  the  defendant  resides; 
if  brought  in  the  place  of  performance,  the 
summons  may  be  served  in  the  county  in 
which     the    defendant    resides.      Cole    v. 


Jurisdiction.  See  ante,  §  94,  and  post,  §§112 
et  seq. 

Process,  where  runs.    See  ante,  §  94. 

Legislation  §  106.  Added  by  Code  Amdts. 
1880,  p.  34;  based  on  original  code  §  116,  which 
read:  "The  civil  jurisdiction  of  justice's  courts, 
within  an  incorporated  city,  extends  to  the  limits 
of  such  city,  or  township  in  which  the  city  is 
situated.  Mesne  and  final  process  of  justices' 
courts  may  be  issued  to  any  part  of  the  county 
in  which  they  are  held."  This  enactment  was 
based  on  Stats.  1863,  p.  340. 

The  original  §  106  defined  the  jurisdiction  of 
the  municipal  criminal  court  of  San  Francisco 


§§  107-109  justices'  courts.  70 

Fisher,  66  Cal.  441;  5  Pac.  915.     Since  this  "to  perform,"  so  that  summons,  in  such  a 

decision,   however,   the   second   subdivision  case,  cannot  now  be  served  upon  a  defend- 

of   §  848   has  been   amended  by  the  inser-  ant  residing  in  a  different  county,  except 

tion   of  the  words  "in  writing,"  after  the  ■\vhen  the  contract  is  in  writing, 
word  "contracted,"   and  before  the   words 

§107.  What  justices  successors  of  others.  The  justices  of  the  peace 
elected  in  the  townships  at  the  general  state  election  of  eighteen  hundred 
and  seventy-nine,  or  persons  appointed  to  fill  their  places,  are  successors  of 
the  justices  of  the  peace  of  the  townships,  respectively,  who  held  office  at 
the  time  of  such  election ;  and,  in  case  the  townships  of  any  county  are  here- 
after changed  or  altered,  the  board  of  supervisors  of  such  county  shall  make 
provision  as  to  what  justices  shall  be  successors  of  the  justices  of  townships 
so  changed  or  altered. 

Legislation  §  107.     Added     by     Code     Amdts.       of  local   legislation,   and  establishes,   auto- 

1880,  p.  34      ,„,„„,„,  ..  .„  maticallv,   a   iustice's   court  in   each  town- 

The     oriemal  §  107     defined     presumptions     m  "  1    j   l!      xt,      i        i   v    ;i  i  •   i, 

favor  of  judgrments  of  municipal  criminal   court  Ship  created  by  the  local  body,  which  con- 

of  San  Francisco.  tinues  while   such   township   exists,  and  is 

Change  or  alteration  of  townshiTJ.     The  merged    in    another    justice's    court    when 

constitutional     provision     as     to     justices'  two  townships  are  merged  into  one._  Proulx 

courts  operates,  specifically,  only  by  means  v.  Graves,  143  Cal.  243;  76  Pac.  1025. 

§  108.     [Related  to  municipal  criminal  court  of  San  Francisco.  Repealed.] 

Legislation  §  108.    1.  Enacted  March  11,  1873.        in  amending  Part  I. 
3.  Repealed    by    Code    Amdts.    1880,    p.    21, 

§  109.     [Related  to  municipal  criminal  court  of  San  Francisco.  Repealed.] 

Legislation  §  109.    1.  Enacted  March  11,  1873.        amending  Part  I. 
8.  Repealed  by  Code  Amdts.  1880,  p.  21,  in 


71 


TERM   OP   OFFICE — CIVIL    JURISDICTION. 


§§110-112 


ARTICLE  III. 

JUSTICES  OF  THE  PEACE  AND  JUSTICES'  COURTS  IN  GENERAL. 


S  110.  Term  of  office. 

§  1  1  1.  ^'a^;^IK•i('K. 

§112.  Civil  jurisdiction. 

S  113.  Concurrent  jurisdiction. 


§  114.     Civil  jurisdiction  restricti^d. 
§11.">.     Criininiil  juiisdiction.      [  Kepi'iili'd.  ) 
§  lit).     [  .\iiirii<l<(l    ami    rtMiumbered    st  ction.      §§ 
117-119.    Same.  1 


§  110.  Term  of  office.  Tlio  torni  of  office  of  justices  of  the  peace  shall  be 
four  years  from  and  after  twelve  o'clock  meridian  on  the  first  Monday  after 
the  first  day  of  January  next  succeeding  their  election. 


Legislation  8  110.  1.  Enacted  March  11,  1873, 
as  §  113  (bii.sfd  on  Stats.  1863,  p.  310),  and 
read:  "Justices  of  the  peace  are  elected  l)y  the 
electors  of  their  respective  townshijjs  or  cities, 
at  the  judicial  elections,  and  hold  their  offices 
for  two  yi'ars  from  the  first  day  of  January  next 
following    their   election." 

3.  Amended  by  Code  .\mdts.  1877-78,  p.  97, 
to  read:  ".Justices  of  the  peace  are  elected  by 
the  electors  of  their  respective  cities  or  townships 
at  the  general  elections,  and  hold  their  offices  for 
two  years  from  the  first  day  of  January  next 
following  their  election." 

3.  Amended  by  Code  Amdts.  1880,  p.  35, 
and  renumbered  §  110,  and  then  read:  "The  term 
of  office  of  justices  of  the  peace  shall  be  two 
years  from  the  first  day  of  .January  ne.xt  succeed- 
ing their  election;  provided,  that  all  justices  of 
the  peace  elected  at  the  general  state  election 
of  eighteen  hundred  and  seventy-nine  shall  go 
out  of  office  at  the  end  of  one  year  from  the  first 
dav  of  .Januarv,   eighteen  hundred  and  eighty." 

4.  Amended  by  Stats.   1901,  p.  630. 

The  original  §  110  was  the  last  section  of  chap- 


ter vii,   and   provided   for  officers   and   salaries  of 
municipal  criminal  court  of  San  Francisco. 

Term  of  office.  The  term  of  office  of 
justices  of  the  peace  within  the  city  and 
county  of  San  Francisco  is  two  years.  In 
re  Mitchell,  120  Cal.  .3,84;  .^2  Pac.  799. 

Oreatlon  of  office  of  justice  of  the  peace. 
The  constitution  of  1879  did  not  al»i)lish 
justices'  courts,  but  expressly  retained 
them.  French  v.  Santa  Clara  County,  69 
Cal.  519;  11  Pac.  .30.  A  justice's  court  can- 
not be  created  by  a  city  charter;  the  jus- 
tices of  the  peace  are  elected  at  the  gen- 
eral election,  an'l  qualify  under  the  general 
laws  of  the  state.  People  v.  Sands,  102 
Cal.  12;  36  Pac.  404;  Graham  v.  Mayor  and 
Board  of  Trustees,  151  Cal.  469;  91  Pac. 
148. 


§  111.  Vacancies.  If  a  vacancy  occurs  in  the  office  of  a  justice  of  the 
peace,  the  board  of  supervisors  of  the  county  shall  appoint  an  eligible  person 
to  hold  the  office  for  the  remainder  of  the  unexpired  term. 

Added  by  Code  Amdts.  office  of  township  justices  of  the  peace  are 
filled  by  the  board  of  supervisors  (People 
V.  Taylor,  57  Cal.  620;  French  v.  Santa 
Clara  County,  69  Cal.  519;  11  Pac.  30; 
People  V.  Chaves,  122  Cal.  134;  54  Pac. 
596) ;  but  the  board  cannot  anticipate  a 
future  vacancy,  to  arise  during  the  term 
of  a  newly  elected  board.  People  v.  Ward, 
107  Cal.  236;  40  Pac.  538.  Boards  of  su- 
pervisors have  power  to  appoint  a  justice 
in  a  newly  created  township.  People  v. 
Chaves,  122  Cal.  134;  54  Pac.  596.  Vacan- 
cies in  the  city  of  Oakland  are  filled  by 
the  board  of  supervisors,  and  not  by  the 
mayor;  the  term  of  the  appointee  is  the 
remainder  of  the  unexpired  term  of  the 
original  incumbent.  People  v.  Cobb,  133 
Cal.  74;  65  Pac.  325. 


Legislation  §  111 
1880,   p.   35. 

Vacancy  in  office.  A  failure  to  qualify 
within  the  time  required  causes  a  vacancy 
in  office  (People  v.  Tavlor,  57  Cal.  620; 
Hull  V.  Superior  Court,  63  Cal.  174;  French 
V.  Santa  Clara  County,  69  Cal.  519;  11 
Pac.  30;  People  v.  Perkins,  85  Cal.  509;  26 
Pac.  245);  and  the  death  of  a  person 
elected,  after  qualification,  and  before  the 
expiration  of  his  predecessor's  term,  also 
causes  a  vacancy  (People  v.  Ward,  107  Cal. 
236;  40  Pac.  538);  but  a  vacancy  is  not 
created  by  resignation  before  the  time  of 
qualification  and  entering  upon  the  duties 
of  office.  Miller  v.  Board  of  Supervisors, 
25  Cal.  93. 

Vacancies,  how  filled.     Vacancies  in  the 


§112.  Civil  jurisdiction.  The  justices'  courts  shall  have  civil  jurisdic- 
tion: 

1.  In  actions  arising  on  contract  for  the  recovery  of  money  only  if  the 
sum  claimed,  exclusive  of  interest,  does  not  amount  to  three  hundred  dollars; 

2.  In  actions  for  damages  for  injury  to  the  person  or  for  taking,  detaining, 
or  injuring  personal  property,  or  for  injury  to  real  property  where  no  issue 
is  raised  by  the  verified  answer  of  the  defendant  involving  the  title  to  or 
possession  of  the  same,  if  the  damage  claimed  do  not  amount  to  three  hun- 
dred dollars; 

3.  In  actions  to  recover  the  possession  of  personal  property,  if  the  value  of 
such  property  does  not  amount  to  three  hundred  dollars ; 


112 


JUSTICES     COURTS. 


72 


4.  In  actions  for  a  fine,  penalty,  or  forfeiture,  not  amounting  to  three  hun- 
dred dollars,  given  by  statute,  or  the  ordinance  of  an  incorporated  city  and 
county,  city,  or  town,  where  no  issue  is  raised  by  the  answer  involving  the 
legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine; 

5.  In  actions  upon  bonds  or  undertakings  conditioned  for  the  payment  of 
mone}^  if  the  sum  claimed  does  not  amount  to  three  hundred  dollars,  though 
the  penalty  may  exceed  that  sum  ; 

6.  To  take  and  enter  judgment  for  the  recovery  of  money  on  the  con- 
fession of  a  defendant,  when  the  amount  confessed,  exclusive  of  interest, 
does  not  amount  to  three  hundred  dollars. 

Kelly,  34  Cal.  391;  94  Am.  Dec.  742;  Kaue 
y.  Desmond,  63  Cal,  464) ;  and  jurisdiction 
is  suffieientlv  shown  by  recitals  in  the 
docket.  Cardwell  v.  Sabichi,  59  Cal.  490. 
The  record  must  affirmatively  show  that 
the  action  was  brought  in  the  right  town- 
ship; failure  to  object  does  not  waive  the 
defect  (Lowe  v.  Alexander,  15  Cal.  296); 
and  the  record  must  set  forth  the  facts 
showing  service  and  return  of  summons. 
Lowe  V.  Alexander,  15  Cal.  296;  Blair  v. 
Hamilton,  32  Cal.  49;  Central  Pacific  R.  R. 
Go.  V.  Board  of  Equalization,  32  Cal.  582; 
Jolley  V.  Foltz,  34  Cal.  321.  The  burden  of 
showing  affirmatively  all  matter  necessary 
to  confer  jurisdiction  is  on  the  party  as- 
serting a  right  under  judgment.  Van 
Etten  V.  Jilson,  6  Cal.  19;  Whitwell  v. 
Barbier,  7  Cal.  54;  Swain  v.  Chase,  12  Cal. 
283;  Lowe  v.  Alexander,  15  Cal.  296;  Row- 
lev  V.  Howard,  23  Cal.  401;  King  v.  Rand- 
lett,  33  Cal.  318;  Jolley  v.  Foltz,  34  Cal. 
321;  Ex  parte  Kearnv,  55  Cal.  212;  Kev- 
bers  V.  McComber,  67  Cal.  395;  7  Pac.  838; 
Eltzroth  v.  Ryan,  89  Cal.  135;  26  Pac.  647. 
Where  the  complaint  states  a  cause  of  ac- 
tion within  the  jurisdiction  of  the  court,  a 
demurrer,  on  the  ground  that  the  court 
has  no  jurisdiction,  will  be  overruled. 
Thornton,  J.,  concurring,  in  Schroeder  v. 
Wittram,  66  Cal.  636;  6  Pac.  737.  Parol 
proof  of  the  facts  showing  jurisdiction 
must  be  made  to  appear,  where  the  record 
fails  to  state  such  facts.  Jolley  v.  Foltz,  34 
Cal.  321. 

Determination  as  to  jurisdiction  and  re- 
\'iew.  The  justice's  court  has  power  to 
pass  upon  and  determine  the  facts  upon 
which  its  jurisdiction  depends  (Ex  parte 
Noble,  96'Cal.  362;  31  Pac.  224;  In  re 
Grove  Street,  61  Cal.  438;  Ex  parte 
Sternes,  77  Cal.  156;  11  Am.  St.  Rep.  251; 
19  Pac.  275);  and  it  is  questionable 
whether  such  decision  and  determination, 
being  insufficient,  can  be  attacked  in  a  col- 
lateral proceeding.  Lowe  v.  Alexander,  15 
Cal.  296.  Jurisdiction  is  not  affected  by 
an  erroneous  decision.  Karrv  v.  Superior 
Court,  162  Cal.  281;  122  Pac.  475;  128  Pac. 
760.  One  method  of  attacking  the  juris- 
diction of  a  justice's  court  is  by  appeal  to 
the  superior  court;  but,  after  such  appeal, 
no  further  attack  can  be  made  upon  the 
judgment  given  in  the  justice's  court. 
American  Law  Book  Co.  v.  Superior  Court, 


Local  and  special  legislation  with  respect  to 
jurisdiction  of  justice  prohibited.  Const.  1879, 
art.  iv.  5  25. 

Jurisdiction  of  justice's  court.    See  post,  §  838. 

Justice's  court  cannot  issue  writ  of — 

1.  Mandamus.    See  post,  §  1085. 

2.  Prohibition.    See  post,  §  1103. 

3.  Certiorari.    See  post,  §  1068. 
Confession  of  judgment  In  justices'  courts.    See 

post,  §  1135. 

Transfer  of  cause  to  superior  court,  where  cer- 
tain questions  involved.    See  post,  §  838. 

Legislation  §  112.  1.  Enacted  March  11,  1872. 
as  §  114,  and  then  read:  "The  civil  jurisdiction 
of  these  courts  within  their  respective  townships 
or  cities  extends:  1.  To  an  action  arising  on  con- 
tract, for  the  recovery  of  money  only,  if  the  sum 
claimed,  exclusive  of  interest,  does  not  amount  to 
three  hundred  dollars;  2.  To  an  action  for  dam- 
ages for  injury  to  the  person,  or  for  taking  or 
detaining  personal  property,  or  for  injuring  per- 
gonal property,  or  for  an  injury  to  real  property, 
where  no  issue  is  raised  by  the  answer  involv- 
ing the  plaintiff's  title,  or  possession  of  the  same, 
if  the  damages  claimed  do  not  amount  to  three 
hundred  dollars;  3.  To  an  action  for  a  fine,  pen- 
alty, or  forfeiture,  not  amounting  to  three  hun- 
dred dollars,  given  by  statute  or  the  ordinance 
of  an  incorporated  city  or  town;  4.  To  an  action 
upon  a  bond  or  undertaking  conditioned  for  the 
payment  of  money,  not  amounting  to  three  hun- 
dred dollars,  though  the  penalty  exceed  that  sum; 
the  judgment  to  be  given  for  the  sum  actually 
due.  When  the  payments  are  to  be  made  by  in- 
stallments, an  action  may  be  brought  for  each 
installment  as  it  becomes  due;  5.  To  an  action 
to  recover  the  possession  of  personal  property, 
when  the  value  of  such  property  does  not  amount 
to  three  hundred  dollars;  6.  To  take  and  enter 
judgment  on  the  confession  of  a  defendant,  when 
the  amount  confessed,  exclusive  of  interest,  does 
not  amount  to  three  hundred  dollars." 

2.  Amended  by  Code  Amdts.  1880,  p.  35,  and 
renumbered  §  112. 

The  original  §  112  provided  for  the  place  of 
holding  justices'   courts. 

Jurisdiction.  The  jurisdiction  of  jus- 
tices' courts  is  special  and  limited:  there 
is  no  presumption  in  favor  of  their  juris- 
diction (Rowley  v.  Howard,  23  Cal.  401; 
King  V.  Randlett,  33  Cal.  318);  but  they 
must  strictly  j)ursue  the  powers  conferred 
upon  them.  Jones  v.  Justice's  Court,  97 
Cal.  523;  32  Pac.  575.  Consent  of  the  par- 
ties cannot  confer  jurisdiction  of  the  sub- 
ject-matter (Feillet  v.  Engler,  8  Cal.  76), 
but  can  confer  jurisdiction  of  the  party. 
Ex  parte  Lou  Ah  Sun,  7  Pac.  305.  The 
record  must  affirmatively  show  the  juris- 
diction of  the  justice:  nothing  can  be  taken 
by  implication  (Joyce  v.  Joyce,  5  Cal. 
449;  Van  Etten  v.  Jilson,  6  Cal.  19;  Smith 
V.  Andrews,  6  Cal.  652;  Swain  v.  Chase,  12 
Cal.  283;  Lowe  v.  Alexander,  15  Cal.  296; 
Wratten  v.  Wilson,  22  Cal.  465;  Hahn  v. 


73 


CIVIL   JURISDICTION. 


§112 


164  Cal.  327;  128  Pac.  921.  The  better 
practice,  iu  such  cases,  is,  not  to  ajipeal 
the  case  on  its  merits,  but  to  assail  the 
jurisdiction  by  certiorari,  as  it  is  doubtful 
whether  the  appeal  will  not  estop  a  i)arty 
from  questioniiiii  the  jurisdiction  of  the 
justice's  court.  Clarniss  v.  Superior  Court, 
88  Cal.  413;  26  Pac.  351.  The  mere  exer- 
cise of  jurisdiction  by  a  justice's  court 
cannot  be  reviewed  on  certiorari.  Karry 
V.  Superior  Court,  162  Cal.  2S1;  122  Pac, 
475;  128  Pac.  760. 

Notice  of  trial  as  affecting  jurisdiction. 
A  failure  to  give  notice  of  trial  in  writ- 
inji,',  where  the  jiarties  have  appeared,  ren- 
ders the  judgment  void  (Jones  v.  .Justice's 
Court,  97  Cal.  523;  32  Pac.  575;  Los  An- 
geles V.  Young,  118  Cal.  295;  62  Am.  St. 
Eep.  234;  50  Pac.  534);  but  no  notice  is 
required  as  to  a  partv  in  default.  Stewart 
V.  Justice's  Court,  109  Cal.  616;  42  Pac. 
158. 

No  equitable  jurisdiction.  A  justice's 
court  has  no  jurisdiction  in  equitable  mat- 
ters but  it  may  appoint  a  receiver  of  rents 
and  profits  in  an  ejectment  proceeding  at 
law.  Garniss  v.  Superior  Court,  88  Cal. 
413;  26  Pac.  351. 

Actions  arising  on  contract.  A  judg- 
ment is  a  contract,  within  the  meaning  of 
this  section  (Stuart  v.  Lander,  16  Cal.  372; 
76  Am.  Dec.  538;  Ames  v.  Hoy,  12  Cal. 
11);  and  an  action  against  a  stockholder 
of  a  corporation,  for  his  proportion  of  the 
indebtedness  of  the  corporation,  is  an  obli- 
gation arising  upon  contract,  within  the 
meaning  of  this  section.  Dennis  v.  Supe- 
rior Court,  91  Cal.  548;  27  Pac.  1031;  Ken- 
nedy V.  California  Savings  Bank,  97  Cal. 
93;  "33  Am.  St.  Rep.  163;  31  Pac.  846;  Lar- 
rabee  v.  Baldwin,  35  Cal.  155;  Morrow  v. 
Superior  Court,  64  Cal.  383;  1  Pac.  354. 

Amount  in  controversy.  The  test  of  ju- 
risdiction of  the  justice's  court  over  the 
subject-matter  of  the  controversy  is  the 
principal  sum  sued  for,  exclusive  of  inter- 
est. Zander  v.  Coe,  5  Cal.  230;  Bradley  v. 
Kent,  22  Cal.  169;  Solomon  v.  Reese,  34 
Cal.  28;  Sanborn  v.  Superior  Court,  60  Cal. 
425;  Dashiell  v.  Slingerland,  60  Cal.  653; 
Shealor  v.  Superior  Court,  70  Cal.  564;  11 
Pac.  653;  Hoban  v.  Ryan,  130  Cal.  96;  62 
Pac.  296.  Prior  to  1863,  the  jurisdiction 
of  the  justice's  court  was  only  two  hun- 
dred dollars  (Zander  v.  Coe,  5  Cal.  230; 
Brock  v.  Bruce,  5  Cal.  279;  Ford  v.  Smith, 
5  Cal.  331;  Hart  v.  Moon,  6  Cal.  161;  Small 
V.  Gwinn,  6  Cal.  447;  Freeman  v.  Powers, 
7  Cal.  104;  Feillett  v.  Engler,  8  Cal.  76; 
Malson  v.  Vaughn,  23  Cal.  61);  but  since 
that  time  it  has  been  three  hundred  dol- 
lars. Cariaga  v.  Dryden,  29  Cal.  307;  Max- 
field  V.  Johnson,  30  Cal.  545;  Reed  v. 
Bernal,  40  Cal.  628;  Sanborn  v.  Superior 
Court,  60  Cal.  425;  Bailey  v.  Sloan,  65  Cal. 
387;  4  Pac.  349.  The  ad  damnum  clause  is 
the  test  of  jurisdiction  (Sanborn  v.  Supe- 
rior Court,  60  Cal.  425;  Bailey  v.  Sloan,  65 
Cal.  3S7;  4  Pac.  349;  Lord  v.  Goldberg,  81 


Gal.  596;  15  Am.  St.  Rep.  82;  22  Pac. 
1126);  but  this  is  not  conclusive,  regard- 
less of  the  allegations  of  the  conijdaint. 
Lehnhardt  v.  Jennings,  119  Cal.  192;  48 
Pac.  56;  51  Pac.  195.  Where  the  comi)laint 
shows  an  amount  l>eyond  the  jurisdiction, 
but  the  prayer  is  for  juilgment  within  the 
jurisdiction,  there  is  a  waiver  of  the  ex- 
cess, ami  the  court  has  power  to  try  the 
cause.  Sanborn  v.  Superior  Court,  60  Cal. 
425.  The  i)laiMtiff  has  the  right  to  waive 
any  sum,  to  bring  the  cause  within  the  ju- 
risdiction of  the  court  (Van  Etteu  v.  .lil- 
son,  6  Cal.  19;  Grass  Valley  Quartz  Mining 
Co.  V.  Stackhouse,  6  Cal.  413;  Wrattcn  v. 
Wilson,  22  Cal.  465) ;  but,  the  test  of  juris- 
diction being  the  amount  sued  for,  the 
waiver  must  be  made  before  the  action  is 
commenced;  jurisdiction  cannot  be  con- 
ferred by  -an  amendment  remitting  the 
sum  in  excess  of  the  jurisdictional  amount. 
Hoban  v.  Ryan,  130 'Cal.  96;  62  Pac.  296. 
Where  attorneys'  fees,  stipulated  in  a  note, 
are  demanded  in  addition  to  the  principal 
sum  due,  increasing  the  amount  beyond 
three  hundred  dollars,  the  justice's  court  is 
ousted  of  jurisdiction  (Reed  v.  Bernal,  40 
Cal.  62S;  De  Jarnatt  v.  Marquez,  127  Cal. 
558;  78  Am.  St.  Rep.  90;  60  Pac.  45);  and 
the  justice's  court  has  no  jurisdiction, 
where,  by  trebling  the  damages  in  un- 
lawful detainer,  the  sum  demanded  exceeds 
the  jurisdictional  amount.  Hoban  v.  Ryan, 
130  Cal.  96;  62  Pac.  296.  A  counterclaim, 
to  be  available,  must  be  within  the  juris- 
dictional amount.  Malson  v.  Vaughn,  23 
Cal.  61;  Maxfield  v.  Johnson,  30  Cal.  545. 
Where  two  actions  in  a  justice's  court  are, 
by  stipulation,  consolidated  for  the  pur- 
pose of  trial,  a  verdict  for  a  specified 
amount,  less  than  three  hundred  dollars  in 
each  case,  is  not  uncertain  nor  in  excess 
of  jurisdiction,  though  the  verdict  specifies 
the  aggregate  amount  found,  which  ex- 
ceeds three  hundred  dollars.  La  Due  v. 
Forbes,  19  Cal.  App.  124;  124  Pac.  867. 

Injury  to  real  property.  A  justice's  court 
has  no  jurisdiction  to  receive  evidence  in 
or  to  try  an  issue  involving  title  to  or 
possession  of  real  ptroperty;  where  such 
evidence  is  offered,  it  is  the  duty  of  the  jus- 
tice to  suspend  further  proceedings,  and 
to  certify  the  cause  to  the  superior  court. 
King  V.  Kutner-Goldstein  Co.,  135  Cal.  65; 
67  Pac.  10.  This  section  makes  no  attempt 
to  confer  jurisdiction  upon  justices'  courts 
in  actions  involving  the  right  to  posses 
sion  of  real  property.  O'Meara  v.  Hables, 
163  Cal.  240;  124  ' Pac.  1003.  It  is  not 
enough  that  possession  is  in  fact  in  con- 
troversy, or  incidentally  in  question,  or 
that  the  fact  of  possession  is  in  issue,  to 
oust  the  justice  of  jurisdiction,  within  the 
meaning  of  the  constitution:  the  right  to 
the  possession  must  be  involved.  Pollock 
v.  Cummings,  38  Cal.  683.  The  justice  is 
not  ousted  of  jurisdiction,  where  posses- 
sion only  is  involved  (Livingston  v.  Mor- 
gan, 53  Cal.  23);  nor  where  title  to  land  is 


§112 


JUSTICES      COURTS. 


74 


not  flirectlv  callefl  in  question  (Sehroeder 
V.  Wittram,  66  Cal.  636;  6  Pae.  737), 
although  the  question  need  not  necessarily 
be  raised  by  the  pleadings  (Copertini  v. 
Oppermann,'^76  Cal.  181;  18  Pae.  256;  Hart 
V.  Carnall-Hopkins  Co.,  103  Cal.  132;  37 
Pae.  196);  but  see  contra,  Sehroeder  v. 
Wittram,  66  Cal.  636;  6  Pae.  737;  Living- 
ston V.  Morgan,  53  Cal.  23;  Ghiradelli  v. 
Greene,  56  Cal.  629;  Williams  v.  Meeart- 
ney,  69  Cal.  556;  11  Pae.  186.  The  true  rule 
seems  to  be  this:  If  the  issue  of  title  or 
right  to  the  possession  is  so  involved  that 
it  must  be  deeided  in  order  to  determine 
the  case,  the  superior  court  has  original 
jurisdiction,  whether  the  involution  may 
be  said  to  be  merely  incidental  or  not.  Hart 
V.  Carnall-Hopkins  Co.,  103  Cal.  132;  37 
Pae.  196;  Holman  v.  Taylor,  31  Cal.  338; 
Copertini  v.  Oppermann,  76  Cal.  181;  18 
Pae.  256;  Eaudolph  v.  Kraemer,  106  Cal. 
199;  39  Pae.  533;  Baker  v.  Southern  Cali- 
fornia Ry.  Co.,  110  Cal.  455;  42  Pae.  975. 
An  action  to  recover  half  the  value  of  a 
partition-fence  involves  the  title  of  the  re- 
spective parties  to  their  lands,  and  the 
justice's  court  has  no  jurisdiction  (Holman 
V.  Taylor,  31  Cal.  338);  but  the  title  or 
right  to  the  possession  is  not  put  in  issue 
in  an  action  to  recover  rent  due  on  a  vprit- 
ten  lease,  where  the  action  denies  the 
plaintiff's  title  or  right  to  possession.  Ghir- 
adelli V.  Greene,  56  Cal.  629.  The  jus- 
tice's court  has  jurisdiction  of  an  action  to 
recover  a  deposit  on  the  purchase  of  land, 
where  the  amount  demanded  does  not  ex- 
ceed the  jurisdictional  amount  (Sehroeder 
V.  Wittram,  66  Cal.  636;  6  Pae.  737); 
but  an  action  for  part  payment  of  the 
purchase-money,  because  of  a  defect  of 
title,  involves  the  title  to  real  property, 
and  is  not  within  the  jurisdiction  of  the 
iustiee's  court.  Copertini  v.  Oppermann,  76 
Cal.  181;  18  Pae.  256. 

Transfer  of  cases  to  superior  court.  See 
note  post,  §  838. 

Conversion.  In  an  action  for  the  con- 
version of  grain,  the  question  of  injury 
does  not  involve  the  title  to  or  the  right 
to  the  possession  of  the  ground  on  which 
the  grain  was  grown  (Ethridge  v.  Jackson, 
2  Sawy.  C.  C.  598;  8  Fed.  Cas.  801;  Fed. 
Cas.  No.  4541);  and  the  justice's  court  has 
jurisdiction  of  an  action  to  recover  dam- 
ages for  taking  and  removing  a  fence. 
Livingston  v.  Morgan,  53  Cal.  23. 

Actions  to  recover  personal  property.  In 
an  action  in  a  justice's  court  for  the  recov- 
ery of  specific  personal  property,  the  stand- 
ard of  jurisdiction  is  "the  value  of  the 
property";  and  it  seems  that  the  justice's 
jurisdiction  for  the  incidental  damages  for 
detention  is  unlimited;  at  all  events,  the 
demand  for  damages  cannot  oust  the  jus 
tiee  of  jurisdiction,  if  the  value  of  the 
property  is  less  than  three  hundred  dollars. 
Astell  V.  Phillippi,  55  Cal.  265;  and  see 
post,  §§509-52L 


Action  on  bonds.  A  justice's  court  has 
jurisdiction  of  an  action  to  enforce  a  bond 
given  to  secure  the  payment  of  the  costs 
of  an  attachment  suit,  brought  in  the  supe- 
rior court  and  appealed  to  the  supreme 
court,  even  though  the  appeal  is  pend- 
ing and  undetermined.  Karry  v.  Superior 
Court,  162  Cal.  281;  122  Pae.  475;  128  Pae. 
760. 

Fines,  penalty,  or  forfeiture.  The  jus- 
tice's court  has  jurisdiction  of  actions  to 
recover  a  fine,  penaltj^  or  forfeiture,  where 
the  amount  sued  for  is  within  its  jurisdic- 
tion, unless  a  question  as  to  the  legality  of 
the  tax,  impost,  toll,  assessment,  or  munici- 
pal fine  is  raised.  Williams  v.  Mecartney, 
69  Cal.  556;  11  Pae.  186;  and  see  Randolph 
V.  Kraemer,  106  Cal.  199;  39  Pae.  533. 

Confession  of  judgment.  A  verified  state- 
ment by  the  defendant,  consenting  to  a 
judgment,  specifying  the  amount,  author- 
izes a  judgment  in  accordance  therewith 
(Pond  V.  Davenport,  44  Cal.  481);  and 
such  a  judgment,  rendered  upon  an  insuffi- 
cient statement,  is  not  a  nullity,  and  can- 
not he  attacked  collaterally.  Lee  v.  Figg, 
37  Cal.  328;  99  Am.  Dee.  271.  An  applica- 
tion to  set  aside  confession  of  judgment 
must  show  that  the  claim  was  not  just, 
and  that  the  judgment  ought  not  to  have 
been  confessed.  Arrington  v.  Sherry,  5  Cal. 
513;  Lee  v.  Figg,  37  Cal.  328;  99  Am.  Dee. 
271.  Where  the  insolvency  laws  prohibit 
the  confession  of  judgment  by  a  bankrupt, 
the  assignee  in  insolvency  can  have  the 
judgment  declared  void,  upon  proper  pro- 
ceedings for  that  purpose.  Pehrson  v. 
Hewitt,  79  Cal.  594;  21  Pae.  950.  It  is  not 
necessary  for  a  defendant  to  be  an  execu- 
tion creditor,  in  order  to  maintain  an 
action  to  set  aside  a  confession  of  judg- 
ment to  defraud  creditors;  it  is  suQicient 
if  he  have  an  attachment  (Conroy  v. 
Woods,  13  Cal.  626;  73  Am.  Dee.  605),  as 
creditors  who  have  acquired  liens  upon  a 
debtor's  property,  before  sale,  under  con- 
fessed judgments,  may  attack  the  same  for 
fraud  (Lee  v.  Figg,  37  Cal.  328;  99  Am. 
Dee.  271);  but  the  complaint  must  set 
forth  the  specific  facts  constituting  the 
fraud  (Meeker  v.  Harris,  19  Cal.  278;  79 
Am.  Dec.  21.5;  King  v.  Davis,  34  Cal.  100; 
Lawrence  v.  Gavetty,  78  Cal.  126;  12  Am. 
St.  Rep.  29;  20  Pae.  382;  17  Morrison's 
Min.  Rep.  169;  People  v.  McKenna,  81  Cal. 
158;  22  Pae.  488;  Spring  Valley  Water 
Works  V.  San  Francisco,  82  Cal.'  286;  16 
Am.  St.  Rep.  116;  6  L.  R.  A.  756;  22  Pae. 
910,  1046),  as  a  general  allegation  that  it 
is  fraudulent,  and  was  intended  to  hinder 
and  delav  creditors,  is  not  sufficient.  Pehr- 
son V.  Hewitt,  79  Cal.  594;  21  Pae.  950; 
Albertoli  v.  Branham,  80  Cal.  631;  13  Am. 
St.  Rep.  200;  22  Pae.  404;  Sukeforth  v. 
Lord,  87  Cal.  399;  25  Pae.  497;  Cosgrove  v. 
Fisk,  90  Cal.  75;  27  Pae.  56.  Such  aver- 
ments are  merely  the  conclusions  of  the 
pleader.     Oakland    v.    Carpeutier,    21    Cal. 


75 


CONCl'RKKNT  JURISDICTION. 


i-  113 


642;  Castle  v.  Bader,  23  Cal.  75;  Orovillo 
etc.  R.  R.  Co.  V.  Supervisora  of  Plumas 
Countv,  37  Cal.  354;  Sacramento  Sav.  Bank 
V.  Hyiies,  5U  Cal.  195;  Pavne  v.  Klliott,  54 
Cal.  339;  35  Am.  Rep. "  SO;  Pohrson  v. 
Hewitt,  79  Cal.  594;  21  Pac.  950;  Alber- 
toli  V.  Branham,  SO  Cal.  ()31;  13  Am.  St. 
Rep.  200;  22  Pae.  404;  Sukeforth  v.  L.)r.l, 
87  Cal.  399;  25  Pac.  497;  Cosgrove  v.  Fisk, 
90  Cal.  75;  27  Pae.  56;  Heller  v.  Dyerville 
Mfg.  Co.,  116  Cal.  127;  47  Pat-.  1016. 

Appeals  to  superior  court.  See  notes 
post,  §§  974-980. 

CODE  COMMISSIONERS'  NOTE.  The  preced- 
ing action  is  biised  iipuii  the  iict  of  18113  (Stilts. 
iHfi;^,  p.  340).  hi  ihe  oriuiiiiil  section  the  ju- 
risdiction e.xtt'uded  in  actioi.s  upon  n  contract  or 
to  recover  danipges  to  an  "amount  not  exceeding 
three  hundred  dollars."  The  eonstitutioi  (art. 
vi,  S9)  declares  tliat  the  jurisdiction  of  tliese 
courts  shall  not  trer.ch  upon  the  jurisdiction  of 
courts  of  record,  and  §  6  of  the  same  article  con- 
ferred jurisdiction  in  this  class  of  cases  when  the 
sum  in  controversy  amounts  to  three  liundred  dol- 
lars. To  ohviate  this  constitutional  objection, 
we  have  stricken  out  th.e  words  "does  not  exceed 
three  hundred  dollars,"  wherever  they  occurred 
in  the  original  section,  and  inserted  instead 
thereof  the  words  "does  not  amount  to  three 
hundred  dollars."  Subdivision  5  of  the  origi- 
nal section  gave  these  c;)urts  jurisdiction  of 
actions  of  foreclosure  when  the  debt  secured  did 
not  exceed  three  hundred  dollars,  trenehi:!--  uuon 
the  equity  jurisdiction  cast  by  the  constitution 
upon  the  district  courts;  theref-^re  we  have 
omitted  this  subdivision,  and  for  kindred  rea- 
sons we  have  omitted  the  provisions  of  the  eighth 
subdivision  of  the  original  section,  conferring  ju- 
risdiction upon  justices'  courts  to  determine  the 
risht  to  a  mining  claim,  when  the  value  of  the 
claim  did  not   exceed  three  hundred  dolL^rs. 

1.  Jurisdiction  to  appear  from  records.  The 
record  of  the  proceedings  of  a  justice's  court  must 
afiirmativelv  show  jurisdiction.  Jollev  v.  Foltz, 
34  Cal.  321;  King  v.  Randlett,  33  Cal.  318; 
Rowley  v.  Howard.  23  Cal.  401;  Lowe  v.  Alex- 
ander,   15    Cal.    296. 

2.  Legality  of  tax.  AVhere  the  legality  of  a 
fax  is  put  in  issue,  the  justice  is  ousted  of  juris- 
diction.    People  V.   Jlier,   24   Cal.   61. 

3.  Final  judgments  of  justice  cannot  te  re- 
viewed ty  him.  A  justice  has  no  power  to  va- 
cate a  judgment  of  dismissal  and  reinstate  the 
case.  O'Connor  v.  Blake,"  29  Cal.  312.  A  justice 
has  no  power  to  vacate  or  set  aside  a  judgment 
made  by  him.  except  upon  a  motion  for  a  new 
trial.  And  when  this  is  done  the  proper  remedy 
is  by  certiorari  from  district  or  county  court, 
and  not  by  appeal.  No  appeal  lies  in  such  a  case. 
The  judgment  of  the  district  court  annulling  such 
order  should  not,  however,  affirm  the  original  judg- 
ment.    V.'intcr  v.   Fitzpatrick,   35   Cal.   269. 

4.  Aincndment  of  complaint,  so  as  to  show  ju- 
risdiction. A  justice  has  the  right  to  allow  a 
complaint  to  be  amended  in  all  respects,  so  that 
the  case  may  be  determined  on  its  substantial 
merits;  and  this  whether  the  defect  be  in  the 
statement',  jurisdiction,  or  other  facts.  Li'ihart  v. 
Buiff,  n  Cal.  280:  Wratten  v.  Wilson,  22  Cal. 
465.  '\Vhen  a  complaint  in  a  justice's  court  avers 
a  good  cause  of  action,  and  in  addition  thereto 
avers   and   asks  relief   for  matters  not   within    the 


jurisdiction  of  the  court,  the  oction  iiho\ild  not 
on  that  acccuinl  be  dismissed,  but  the  conn  should 
direct  thi>  complaint  to  be  amended,  or  should 
disregard  the  objeclionuble  matter.  Howard  v. 
A'alentine,  20  Cal.  282:  Van  Ktlen  v.  Jilson,  0 
Ciil.  19:  (irasB  Valley  Quartz  Min.  Co.  v.  Stack- 
hiuse,  6  Cal.  413;  Wratten  v.  Wilson,  22  Cal. 
4  65. 

.').  Granting  appeals,  stay  of  executions,  etc. 
,Tuslic(s  can  exercise  jurisdiction  to  j.'.ra"t  ap- 
I)eals,  and  thereupon  stay  execution,  etc.  Coulter 
v.   .*Si;irk.    7   Cal.   244. 

6.  Deserting  seamen.  Under  the  acts  of  Con- 
press  (1790),  justices  of  the  peace  have  jurisdic- 
tion to  try  and  commit  deserting  seamen,  and  no 
other  c.Mut  has  this  power.  Kx  parte  (,'randall,  2 
Cal.    ]  44. 

7.  Money  demands.  Amount  In  controversy. 
A  judgment  l)y  confession  for  a  greater  amount 
than  (notwithstanding  the  coni|)l;iint  was  within) 
the  jurisdictional  amount  allowed  by  the  constitu- 
tion, was  held  void.  Feillett  v.  Fngler,  8  Cal.  76. 
But  this  case  is  commented  on,  and  it  was  held 
th:it  the  "amount  in  controversy  is  what  deter- 
mines the  jurisdiction."  'I'hat  this  was  the  amount 
sued  for,  exclusive  of  costs.  The  judgment  may 
exceed  the  amount  in  controversy.  Bradley  v. 
Kent,  22  Cal.  169;  but  see  Reed  v.  Bernal,  40 
Cal.  629;  see  note  6  to  §  44,  ante.  Formirly,  un- 
der the  constitution,  the  jurisdiction  of  the  jus- 
tice's court  was  limited,  as  to  money  dema!ids,  to 
an  "amount  not  exceeding  two  hundred  dollars." 
Feilletl  v.  Rngler,  8  Cal.  76;  Zander  v.  Coe,  5 
Cal.  230;  Ford  v.  Smith,  5  Cal.  331;  Brock  v. 
Bruce,  5  Cal.  279;  Hart  v.  Morn,  6  Cal.  161; 
Freeman  v.  Powers,  7  Cal.  104;  Small  v.  Gwinn, 
6  Cal.  447:  Malson  v.  Vaughn,  23  Cal.  61.  But 
since  1863  the  jurisdiction  has  been  established 
at  anv  sum  not  amounting  to  three  hundred  dol- 
lars. 'Cariaga  v.  Dryden,  29  Cal.  307:  Maxfield 
V.  Johnson,  30  Cal.  545;  see  Reed  v.  Bernal,  40 
Cal.  629.  Justices'  courts  would  have  no  juris- 
diction where  a  defendant  sets  up  a  counterclaim 
for  a  sum  exceeding  three  hundred  dollars.  Max- 
field  V.  Johnson,  30  Cal.  545.  Plaintiff  c  .m- 
ineneed  three  actions  in  a  justice's  court  for  the 
recovery  of  the  same  property,  the  action  being 
againslseveral  defendants.  The  property  sued  for 
was  of  value  less  than  three  hundred  dollars. 
Tender  §  1048  of  this  code  ( •!  526)  the  several  ac- 
tions were  consolidated.  The  court  held,  the  value 
of  the  propertv  being  less  than  three  hundred  dol- 
lars, that;  the  justice  had  jurisdiction.  Cariaga  v. 
Dryden.  29  Cal.  307. 

8.  Trespass  on  real  property.  A  justice's  court 
has  jurisdiction  of  an  action  of  trespass  on  real 
property,  the  damages  claimed  being  less  than 
three  hundred  dollars.  Pollock  v.  Cummings,  38 
Cal.  683.  But  the  right  of  possession  miist  not 
be   put   in   issue.     Cornett   v.   Bishop.   39   Cal.   319. 

9.  Damages  for  Injury  to,  or  detention  of,  min- 
ing claims.  It  wa:^  held  that  ju.stices'  courts  could 
not  take  jurisdiction  of  suits  to  recover  damages 
for  ininrv  to  a  mining  claim,  or  for  its  detention. 
Van   Etten   v.  Jilson,   6   Cal.    19. 

10.  Damage  for  diversion  of  water.  Water 
rights.  A  justice  of  the  peace  has  no  power  con- 
ferred upon  him  to  try  a  cause,  where  there  is  an 
alleged  injury  aiising  out  of  a  diversion  of  wafer 
from  the  natural  or  artificial  channel  in  which  it 
is  conducted.  Hill  v.  Newman,  5  Cal.  445;  63 
Am.    Dec.    140. 

11.  Action  for  penalty  for  charging  excessive 
fare  by  railroad  company.  See  Reed  v.  Omnibus 
R.   R.   Co..   33   Cal.   212. 

12.  Judgment  on  confession  of  defendant.  Feil- 
lett V.  Engler..  8   Cal.   76. 

§113.  Concurrent  jurisdiction.  The  justices'  courts  shall  have  ennenr- 
rent  jurisdiction  with  the  superior  courts  within  their  respective  townships: 

1.  In  actions  of  forcible  entry  and  detainer,  where  the  rental  value  of  the 
property  entered  upon  or  unlaw^fully  detained  does  not  exceed  twenty-five 
dollars  per  month,  and  the  whole  amount  of  damages  claimed  does  not  ex- 
ceed two  hundred  dollars; 


§114 


JUSTICES     COURTS. 


76 


2.  In  actions  to  enforce  and  foreclose  liens  on  personal  property,  where 
neither  the  amount  of  the  liens  nor  the  value  of  the  property  amounts  to 
three  hundred  dollars. 

of  damages  claimed  must  not  exceed  two 
hundred  dollars;  and  2.  That  the  rental 
value  of  the  property  must  not  exceed 
twenty-five  dollars  a  month,  as  a  matter 
of  fact  (Ballerino  v.  Bigelow,  90  Cal.  500; 
27  Pac.  372);  and  this  amount  must  be 
computed  bv  excluding  interest.  Hoban  v. 
Ryan,  130  "Cal.  96;  62  Pac.  296.  Where 
the  plaintiff  seeks  to  have  the  damages 
trebled,  and  by  so  doing  exceeds  the  juris- 
dictional amount,  the  court  is  ousted  of 
jurisdiction  (Hoban  v.  Eyan,  130  Cal.  96; 
62  Pac.  296),  and  also  where  the  evidence 
shows  that  the  rental  involved  is  in  excess 
of  twenty-five  dollars  a  mouth,  as  jurisdic- 
tion cannot  be  conferred  by  the  fictitious 
framing  of  a  complaint  to  bring  the  action 
within  the  jurisdictional  amount,  and  thus 
deprive  the  defendant  of  the  right  to  sub- 
mit his  case  to  the  proper  tribunal.  Bal- 
lerino V.  Bigelow,  90  Cal.  500;  27  Pac.  372. 

See 


Concurrent  jurisdiction.  See  Const.,  art.  vi, 
§  11. 

Concurrent  jurisdiction  in  action  for  forcible 
entry  and  detainer.    See  post,  §  1163. 

Forcible  entry.    See  post,  §§  1159  et  seq. 

Legislation  §  113.  Added  by  Code  Amdts. 
1880,  p.  3.5. 

The  original  §  113  provided  for  terms  and  elec- 
tion of  justices  of  the  poacc.    See  ante,  §  110. 

Actions  of  forcible  entry  and  detainer. 

Justices'  courts  have  jurisdiction  concur- 
rent with  the  superior  court  in  cases  of 
unlawful  detainer,  where  the  amount  in- 
A'olved  brings  the  action  within  this  sec- 
tion. Ivory  V.  Brown,  137  Cal.  603;  70 
Pac.  657.  The  constitutional  provision  of 
1849  giving  justices'  courts  jurisdiction  in 
actions  in  forcible  entry  and  detainer  was 
held  to  include  unlawful  detainers  (Caul- 
field  v.  Stevens,  28  Cal.  118;  Brummagim 
V.  Spencer,  29  Cal.  661;  Meeham  v.  Mc- 
Kay, 37  Cal.  154;  Johnson  v.  Chely,  43  Cal. 
299) ;  and  this  section  is  given  the  same 
construction.  Ivory  v.  Brown,  137  Cal.  603; 
70  Pac.  657.  The  test  of  jurisdiction  in 
such  actions  is:   1.  That  the  whole  amount 


Concurrent    and    conflicting    jurisdiction. 
note  29  Am.  St.  Rep.  310. 

Eight  to  control  action  as  between  two  courts 
of  concurrent  jurisdiction.  See  note  Ann.  Cas. 
1912A,  150. 


§  114.  Civil  jurisdiction  restricted.  Except  as  in  the  last  preceding  sec- 
tion provided,  the  jurisdiction  of  the  justices'  courts  shall  not,  in  any  case, 
trench  upon  the  jurisdiction  of  the  several  courts  of  record  of  the  state,  nor 
extend  to  any  action  or  proceeding  against  ships,  vessels,  or  boats,  for  the 
recovery  of  seamen's  wages  for  a  voyage  performed  in  whole  or  in  part 
without  the  waters  of  this  state. 


Not  to  trench  upon  jurisdiction  of  courts  of 
record.    See  Const.,   art.  vi,  §  11. 

Actions  against  vessels.    Post,  §§813  et  seq. 

Legislation  §  114.  1.  Enacted  March  11,  1873, 
as  §  115,  and  then  read:  "The  jurisdiction  con- 
ferred by  the  last  section  shall  not  extend,  how- 
ever: 1.  To  a  civil  action  in  which  the  title  or 
possession  of  real  property  is  put  in  issue;  2.  Nor 
to  an  action  or  proceeding  against  ships,  ves- 
sels, or  boats,  or  against  the  owners  or  masters 
thereof,  when  the  suit  or  proceeding  is  for  the 
recovery  of  seamen's  wages  for  a  voyage  per- 
formed in  whole  or  in  part  without  the  v/aters 
of  this  state." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  399, 
and  the  words  "or  against  the  owners  or  masters 
thereof"  omitted. 

3.  Amended  by  Code  Amdts.  ISSO,  p.  36,  and 
renumbered  §  114. 

The  original  §  114  defined  the  civil  jurisdiction 
of  justices'   courts.    Sec  ants,  §  112. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.    340. 

Cases  involving  title  or  possession  of  real  prop- 
erty. The  constitution  confers  on  the  district 
courts  original  jurisdiction  in  all  cases  at  la->v 
which  involve  the  title  or  possession  of  real  prop- 
erty, and  on  the  supreme  court  appellate  jurisdic- 
tion in  all  such  cases.  Const.,  art.  vi.  S§  4,  6. 
The  ninth  section  of  the  same  article  of  the  con- 
stitution authorizes  the  legislature  to  fix  by  law 
the  powers  of  justices  of  the  peace,  provided  such 
powers  shall  not  in  any  case  trench  upon  the  ju- 
risdiction of  the  several  courts  of  record;  and  the 
act  concerning  the  courts  "f  justice  of  this  state 
and  judicial  officers  provides  that  courts  of  jus- 
tices of  the  peace  shall  not  have  jurisdiction   in  a 


civil  action  in  which  the  title  or  possession  of  real 
estate  shall  necessarily  come  in  question.  Laws 
1863,  p.  340,  ^  49.  The  objection  suggested  is  un- 
tenable, because  the  action,  though  commenced  in 
a  justice's  court  for  damages  ia  a  sum  less  than 
three  hundred  dollars,  upon  the  filing  of  the  de- 
fendant's answer  involved  a  question  of  title  to 
the  land  on  which  stood  the  fence  that  was  de- 
stroyed. The  cause  was  transferred  from  the  jus- 
tice's court  to  the  district  court,  upon  the  filing 
of  the  defendant's  verified  answer,  showing  that 
the  determination  of  the  action  would  necessarily 
involve  the  decision  of  a  question  of  title  to 
real  property,  as  provided  by  the  five  hundred 
and  eighty-first  section  of  the  Practice  Act  (post, 
§  838),  and  upon  its  becoming  so  transferred,  the 
district  court  obtained  complete  jurisdiction  in 
the  premises.  Doherty  v.  Thayer,  31  Cal.  144, 
145.  In  llolman  v.  Taylor,  3l"Cal.  338,  the  title 
of  the  respective  parties  to  certain  parcels  of  real 
estate  was  in  issue,  and  ia  ascertaining  the  mean- 
ing of  the  clause  of  the  constitution,  "all  cases 
at  law  which  involve  the  title  or  possession  of 
real  property,"  the  subject  of  possession  was  con- 
sidered, but  only  by  way  of  argument,  and  for 
the  purpose  of  illustration  ;  and  in  the  discussion 
the  language  of  the  court  was  not  in  all  respects 
sufficiently  guarded  and  definite.  To  constitute  a 
case  which  involves  the  possession  of  real  prop- 
erty, it  is  not  enough  that  the  possession  is  a  fact 
in  controversy,  or  incidentally  in  question,  or  that 
the  fact  of  possession  is  in  issue;  but  the  right' 
of  possession  must  be  involved  in  the  action.  The 
paraphrase  of  the  clause  of  the  constitution,  given 
in  Holman  v.  Taylor,  would  be  more  accurate, 
and  would  nvire  fully  e.xpress  the  meaning  of  that 
clausi',  if  given  in  this  language:  "Cases  at  law 
in   which   the   title   or  right   of   possession   of  real 


77 


POLICE  COURTS   PROVIDED   FOR    IN   POLITICAL  CODE.  §§  115-121 


property  is  a  material  fact  in  the  case,  upuii  which 
the  plaintiff  relies  for  a  recovery,  or  the  defend- 
ant for  a  defense."  The  allcKation  of  the  rinht 
of  possession  is  quite  diffcreni  from  that  of  ims- 
session  in  fact,  which  may  constitute  merely  the 
basi.s  of  some  rifjht  or  claim  con.stitutinc  the  cause 
of  action,  or  tlie  defense  to  the  action.  In  an 
action  for  use  and  occupation,  the  possession  of 
the  defendant  may  he  alleged  on  the  one  side  and 
denied  on  the  other  without  presenting  an  issue 
as  to  the  right  of  possession.  And  so,  in  an  ac- 
tion of  trespass  upon  real  property,  the  plaintiff 
may  recover  upon  allepring  and  showing,  in  addi- 
tion to  the  injury  complained  of.  his  possession  of 
the   premises,   and   his   right   to    the    possession    is 


not  involved  unless  the  defendant  tenders  an  issue 
upon  that  fact,  and  in  such  case,  as  was  said  in 
llolman  v.  Taylor,  the  right  of  recovery  depends 
hoth  upon  possession  in  fact  and  the  right  of 
possession.  It  was  not  the  intention  to  with- 
draw from  justices  of  the  peace  and  oilier  inferior 
courts,  and  confer  upon  the  district  courts,  ju- 
risdiction of  cases  of  the  character  of  those  men- 
tioned,  in  which  the  riglit  of  possession  is  not 
involvtd;  hut  it  was  intended  to  give  to  the  latter 
courts  jurisdiction  of  cases  involving  the  right  of 
possession  of  real  property.  Pollock  v.  Cummings, 
38  Cal.  085.  See  also  Cornett  v.  Hishop,  39  Cal. 
319;  Cullen  ▼.  Langridge,  17  Cal.  69. 


§115.     [Related  to  criminal  jurisdiction.     Repealed.] 


Act  conferring  power  to  act  as  police  judges. 
Act  of  .Stats.  1S8H,  p.  6.3,  was  superseded  by 
§  103,   ante,   as   amended   by   Stats.    1901.    p.    100. 

Legislation  §  115.  1.  Enacted  March  11,  1S73, 
as  §  117. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  283. 

3.  Amended  by  Code  Amdts.  1880,  p.  36,  and 
renumbered  §  11.5  in  amending  Part  I. 


4.  Repeal  by  Stats.  1901,  p.  120;  unconsti- 
tutional.    See  note  ante,  §  fy. 

5.  Repealed  by  Stats.  1907,  p.  682;  the  code 
commissioner  saying,  "Repealed,  as  it  related 
wholly  to  prosecution  of  public  offenses,  and  its 
provisions  were  incorporated  in  the  Penal  Code, 
§  142.5,  as  amended  in  1905."  Stats.  1905, 
p.   705. 


§  116.     [Subject-matter  amended,  and  section  renumbered.] 


Legislation  §  116.    1,  Enacted  March  11,  1873. 
2.    Repealed  by  Code  Amdts.    1880,   p.   21,   in 


amending  Part  I. 


§  117.      [Subject-matter  amended,  and  section  renumbered.] 


Legislation  §  117.    1.  Enacted  March  11,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  283. 

3.  Amended  by  Code  Amdts.  1875-76. 


4.   Repealed  by   Code  Amdts.   1880,  p.  21,  in 

amending  Part   I. 


§  118.      [Subject-matter  amended,  and  section  renumbered.] 


Legislation  §  118.    1.  Enacted  March  11,  1873. 
2.   liepealed   by   Code  Amdts.   1880,   p.   21,   in 


amending  Part  I. 


§  119.     [Subject-matter  amended,  and  section  renumbered.] 


Legislation  §  119. 
1873-74,  p.   383. 


1.   Added    by    Code   Amdts. 


3.  Repealed  by  Code  Amdts.  1880,  p.  21,  in 
amending  Part  I. 


CHAPTER  VI. 

POLICE  COURTS. 


§  121.     Provided  for  in  Political  Code. 

§  121.     Provided  for  in  Political  Code.     Police  courts  are  established  in 

incorporated  cities  and  counties,  cities  and  towns,  and  their  organization, 

jurisdiction,  and  powers  provided  for  in  the  Political  Code,  part  four. 

Grew  V.  Mayor  and  Board  of  Trustees,  55 
Cal.  611;  People  v.  Ransom,  58  Cal.  558; 
Jenks  V.  Council  of  City  of  Oakland,  58 
Cal.  576;  Coggins  v.  Sacramento,  59  Cal. 
599;  Kahn  v.  Sutro,  114  Cal.  316;  33  L.  R. 
A.  620;  46  Pac.  87;  People  v.  Provines,  34 
Cal.  520) ;  and  police  judges,  though  judi- 
cial officers,  are  also  municipal  officers. 
People  V.  Henry,  62  Cal.  557. 

CODE    COMMISSIONEES'    NOTE. '  People    v. 
Provines,  34  Cal.  520. 


Proceedings  in  civil  actions.  See  post,  §§  929 
et  scq. 

Pohce  courts  generally,  their  organization  and 
jurisdiction.     .See   Pol.   Code,  §  §  4424  et  seii. 

Act  transferring  business  to,  after  new  consti- 
tution.   See  Stats.  1880,  p.  2   (Bancroft  ed.,  p.  2). 

Legislation  §  121.    1.  Enacted  March  11,  1873, 
3.   Amended  by  Code  Amdts.  1880,  p.  36,  and 

the  words   "cities  and  counties"   added. 

Police  courts.  Police  courts  constitute 
part  of  the  courts  of  the  state,  and  police 
judges  part  of  the  judiciary  (Ex  parte 
Henshaw,   73   Cal.  486;   15  Pac.   110;   Mc- 


§§  124,  125         GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE. 


78 


CHAPTER  VII. 

GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE. 

Article  I.  Publicity  of  Proceedings.     §§  124,  125. 

II.  Incidental  Powers  and  Duties  of  Courts.     §§  128-13L 

III.  Judicial  Days.     §§  133-135. 

IV.  Proceedings  in  Case  of  Absence  of  Judge.     §§  139,  140. 

V.     Provisions    respecting   Places   of   Holding   Courts.     §§  142-144. 
VI.     Seals  of  Courts.     §§147-153. 


ARTICLE  I. 

PUBLICITY  OF  PROCEEDINGS. 

§  124.     Sittings,  public. 
§125.     Sittings,  when  private. 


§  124.     Sittings,  public.     The  sittin 
public,  except  as  provided  in  the  next 

Publicity  of  proceedings.  U.  S.  Const.,  art.  vi, 
§  1,  Amdts. 

Legislation  §  124.  1.  Enacted  March  11, 1873 ; 
ba.sed  on  Stats.   1863,  p.  342. 

3.  Amended  by  Code  Amdts.  1880.  p.  36,  and 
the  word,  "are"    changed   to   words   "shall  be." 

Public  sittings.  "A  public  trial"  means 
one  not  held  in  secret.  People  v.  Swafford, 
65  Cal.  223;  3  Pac.  809.  The  trial  should 
be  public,  in  the  ordinary,  common-sense 
acceptation  of  the  term;  the  doors  of  the 
courtroom  kept  open;  the  public  admitted; 
the  trial  public  in  all  respects;  with  due 
regard  to  the  size  of  the  courtroom  and 
the  conveniences  of  the  court,  with  the 
right  in  the  court  to  exclude  objectionable 
characters  as  well  as  youths  of  tender 
years,  and  to  do  other  things  which  may 
facilitate  the  proper  conduct  of  the  trial. 
People  V.  Hartman,  103  Cal.  242;  42  Am. 
St.  Rep.  108;  37  Pac.  153.  The  exclusion 
of   spectators  from   the   courtroom   during 

§  125.  Sittings,  when  private.  In  an  action  for  divorce,  criminal  conver- 
sation, seduction,  or  breach  of  promise  of  marriage,  the  court  may  direct  the 
trial  of  any  issue  of  fact  joined  therein  to  be  private,  and  may  exclude  all 
persons  except  the  officers  of  the  court,  the  parties,  their  witnesses,  and  coun- 
sel; provided,  that  in  any  cause  the  court  may,  in  the  exercise  of  a  sound 
discretion,  during  the  examination  of  a  witness,  exclude  any  or  all  other 
witnesses  in  the  cause. 


gs  of  every  court  of  justice  shall  be 

section, 
the  trial,  against  the  objection  of  defend- 
ant, is  a  violation  of  the  constitution;  and 
injurv  to  the  defendant  will  be  presumed 
(People  v.  Hartman,  103  Cal.  242;  42  Am. 
St.  Rep.  108;  37  Pac.  153;  and  see  People 
v.  Kerrigan,  73  Cal.  222;  14  Pac.  849),  but 
this  right  to  a  public  trial  may  be  waived 
by  the  defendant  (People  v.  Tarbox,  115 
Cal.  57;  46  Pac.  896),  and,  in  the  absence 
of  any  showing,  it  will  be  presumed  that 
an  excluding  order  was  with  the  consent 
of  the  defendant.  People  v.  Swafford,  65 
Cal.  223;  3  Pac.  809.  An  order  excluding 
from  the  courtroom  all  persons,  except  the 
judge,  jurors,  witnesses,  and  persons  con- 
nected with  the  cause,  does  not  violate  this 
statutory  provision.  People  v.  Swafford,  65 
Cal.  223;  3  Pac.  809;  People  v.  Tarbox,  115 
Cal.  57;  46  Pac.  896;  People  v.  Kerrigan, 
73  Cal.  222;  14  Pac.  849. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1863. 
p.   842. 


Records  in  divorce  and  attachment  proceedings 
to  be  kept  secret.    See  Pol.  Code,  §  1032. 
Exclusion  of  witnesses.    Post,  §  2043. 

Legislation  §  125.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  342),  and  then  read: 
"§  125.  In  an  action  for  divorce  the  court  may 
direct  the  trial  of  any  issue  of  fact  .ioined  therein 
to  be  private,  and  may  exclude  all  persons,  ex- 
cept the  officers  of  the  court,  the  parties,  their 
witnesses,   and  counsel." 

3.  Amended  by  Code  Amdts.  1873-74,  p. 
284,  the  text  then  reading  as  at  present,  except 
that  it  did  not  have  proviso. 

3.  Amended  by  Code  Amdts.  1880,  p.  36,  and 
proviso   added. 

Private  sittings.  This  section,  permit- 
ting private  sittings  of  the  court,  does  not 
ap[)ly  to  criminal  cases,  but  only  to  civil 
actions.    People  v.  Hartman,  103  Cal.  242; 


42  Am.  St.  Rep.  108;  37  Pac.  153.  The 
object  of  this  section  is  to  secure  decorum 
in  the  conduct  of  trials  involving  the  rela- 
tion of  the  sexes,  and  to  protect  witnesses 
of  refined  sensibilities  from  giving  testi- 
mony of  a  delicate  or  filthy  nature  in  the 
presence  of  a  crowd  of  vulgar  or  curious 
spectators;  it  was  not  intended  for  the 
protection  of  the  public  from  the  influence 
of  revelations  often  made  in  such  cases, 
nor  to  prevent  the  publication  of  the  evi- 
dence. In  re  Shortridge,  99  Cal.  526;  37 
Am.  St.  Rep.  78;  21  L.  R.  A.  755;  34  Pac. 
227;  Ann.  Cas.  1912B,  542,  note. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1863^ 
p.    342. 


79 


POWERS  RESPECTING  CONDUCT  OF  PROCEEDINGS. 


§128 


ARTICLE  11. 

INCIDENTAL  POWERS  AND  DUTIES  OF  COURTS. 


I  131.     Probationary    treutment     of    juvenile     of- 
foLdurs. 


5  128.     Powers  respecting  condiu-t  of  proceedings. 
§  129.     Courts  of  record  may  make  rules. 
I  130.     When  rules  take  effect. 

§  128.  Powers  respecting  conduct  of  proceedings.  Every  court  shall  have 
power : 

1.  To  preserve  and  enforce  order  in  its  immediate  presence; 

2.  To  enforce  order  in  the  proceedings  before  it,  or  before  a  person  or  per- 
sons empowered  to  conduct  a  judicial  investigation  under  its  authority; 

3.  To  provide  for  the  orderly  conduct  of  proceedings  before  it,  or  its 
officers ; 

4.  To  compel  obedience  to  its  judgments,  orders,  and  process,  and  to  the 
orders  of  a  judge  out  of  court,  in  an  action  or  proceeding  pending  therein; 

5.  To  control  in  furtherance  of  justice,  the  conduct  of  its  ministerial 
officers,  and  of  all  other  persons  in  any  manner  connected  with  a  judicial 
proceeding  before  it,  in  every  matter  appertaining  thereto ; 

6.  To  compel  the  attendance  of  persons  to  testify  in  an  action  or  proceed- 
ing pending  therein,  in  the  cases  and  manner  provided  in  this  code ; 

7.  To  administer  oaths  in  an  action  or  proceeding  pending  therein,  and  in 
all  other  cases  where  it  may  be  necessary  in  the  exercise  of  its  powers  and 
duties ; 

8.  To  amend  and  control  its  process  and  orders  so  as  to  make  them  con- 
formable to  law  and  justice. 

Control  conduct  of  persons  connected 
with  proceedings.  The  court  may  order 
the  defendant  to  allow  an  expert  witness 
of  the  plaintiff  to  examine  the  machinery 
of  the  defendant,  in  an  action  for  damages 
occasioned  by  negligence.  Clark  v.  Tulare 
Lake  Dredging  Co.,  14  Cal.  App.  414,  439; 
112  Pac.  564.  Where  the  plaintiff,  in  an 
action  to  recover  for  personal  injuries, 
offers  the  testimony  of  attending  physi- 
cians to  prove  the  nature  and  extent  of 
the  injuries  sustained,  the  court  has  power, 
and  it  is  its  duty,  to  order  a  physical  ex- 
amination in  the  presence  of  the  plaintiff's 
physicians  and  physicians  of  the  defend- 
ant, to  ascertain  the  nature  and  extent  of 
such  injuries.  Johnston  v.  Southern  Pacific 
Co.,  150  Cal.  535;  11  Ann.  Cas.  S41;  89  Pac. 
348. 

Compel  attendance  of  witnesses.  The 
court  has  power,  under  this  section,  to 
compel  the  attendance  of  witnesses  con- 
fined in  the  state  prison.  Willard  v.  Sujie- 
rior  Court,  82  Cal.  456;  22  Pac.  1120. 

Amendment  of  process.  The  court  has 
power  to  amend  its  process,  pending  its 
service.  Baldwin  V.  Foster,  157  Cal.  643; 
108  Pac.  714. 

Control  over  process.  The  court  wherein 
judgment  is  entered  has  control  of  such 
judgment,  and  authority  to  direct  issuance 
and  execution  of  process  thereunder,  in  the 
interest  of  the  party  entitled  thereto;  and 
necessarily,  as  incidental  to  such  power, 
that  of  determining,  in  any  instance,  who 
is  entitled  to  such  process.   Kowe  v.  Blake, 


Power  of  judicial  officers.    See  post,  §  177. 

Contempt.    See  post,  §  1209. 

In  justice's  court.    See  post,  §§  906  et  seq. 

Subd.  6.  Attendance  of  witnesses.  See  post, 
§§  1985  et  seq. 

Subd  7.  Administration  of  oaths.  See  post, 
§§  2093   et  seq. 

Legislation  8  128.  1.  Enacted  March  11,1873; 
based  on  Stats.  1863,  p.  342,  and  on  New  York 
code. 

3.  Amended  by  Code  Amdts.  1880,  p.  37, 
and  words  "Every  court  has  power"  changed  to 
"Every  court  shall  have  power." 

Power  over  conduct  of  proceedings.     It 

is  important  that  courts  of  justice  should 
be  upheld  in  the  enforcement  of  all  neces- 
sary and  reasonable  rules  for  the  orderly, 
speedy,  and  effective  conduct  of  their  du- 
ties. People  V.  Kerrigan,  73  Cal.  222;  14 
Pac.  849;  People  v.  Swafford,  65  Cal.  223; 
3  Pac.  809. 

Obedience  to  orders  and  judgments.  This 
section  provides  power  to  compel  obedi- 
ence to  judgments,  orders,  or  processes 
(Ex  parte  Smith,  53  Cal.  204);  and  when 
an  act  is  within  the  power  of  the  party  to 
perform,  the  court  may  direct  him  to  be 
imprisoned  until  he  complies  with  its  order. 
Ex  parte  Latimer,  47  Cal.  131 ;  People  v. 
Center,  54  Cal.  236;  Ex  parte  Kellogg,  64 
Cal.  343;  30  Pac.  1030. 

Control  conduct  of  ministerial  officers. 
For  the  purpose  of  appeal,  the  supreme 
court  has  power  to  control  the  conduct  of 
the  clerk  of  the  trial  court.  People  v.  Cen- 
ter, 54  Cal.  236;  Winder  v.  Hendrick,  54 
Cal.  275;  Duncan  v.  Times-Mirror  Co.,  109 
Cal.  602;  42  Pac.  147. 


§129 


GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE. 


80 


aside  an  order  inadvertently  made,  the 
court  is  not  bound  by  the  record,  but  may 
receive  evidence  for  that  purpose.  Kauf- 
man V.  Shain,  111  Cal.  16;  52  Am.  St.  Eep. 
139;  43  Pae.  393.  This  power  may  be  exer- 
cised at  anv  time  (Kaufman  v.  Shain,  111 
Cal.  16;  52' Am.  St.  Eep.  l.'^g;  43  Pac.  393; 
Crim  V.  Kessing,  89  Cal.  478;  23  Am.  St. 
Eep.  491;  26  Pac.  1074;  Egan  v.  Egan,  90 
Cal.  15;  27  Pac.  22),  even  after  an  appeal, 
a  judgment  of  affirmance,  and  the  issuance 
of  execution.  Eousset  v.  Boyle,  45  Cal.  64; 
Sheldon  v.  Gunn,  57  Cal.  40;  Boyd  v.  Bur- 
re),  60  Cal.  280;  People  v.  Murback,  64  Cal. 
369;  30  Pac.  608. 

Power  of  courts  to  punish  contempts.  See  note 
12  Am.  Dec.    178. 

Power  of  courts  to  compel  parties  to  convey 
land  or  surrender  property  or  children  situated 
in  another  state.    See  note  67  Am.  Dec.  95. 

Power  to  punish  for  contempt  at  chambers  or 
in  vacation.    See  note  Ann.  Cas.  1913B,  35. 

Power  of  magistrate  to  punish  for  contempt. 
See  note  1  L.  R.  A.   (N.  S.)   1135. 

CODE  COMMISSIONERS'  NOTE.  Subdivisions 
1,  2,  4,  and  the  first  clause  of  subdivision  5,  sub- 
stantially embrace  the  provisions  of  §  65  of  the 
act  of  1863  (Stats.  1863,  p.  342);  the  other  sub- 
divisions are  taken  from  the  New  York  code,  be- 
cause they  concisely  embody  various  statutory 
provisions  scattered  through  our  laws,  or  well-set- 
tled common-law  principles,  applicable  to  the 
powers  of  judicial  tribunals.  This  arrangement 
presents  them  in  a  form  convenient  to  the  profes- 
sion, and  in  their  logical  order. 


112   Cal.   637;   44  Pac.   1084;   McAuliffe  v. 
Coughlin.  105  Cal.  268;  38  Pac.  730. 

Control  over  record.  Every  court  of  rec- 
ord has  the  inherent  right  and  power  to 
cause  its  acts  and  proceedings  to  be  cor- 
rectly set  forth  in  its  records;  the  clerk  is 
but  an  instrument  and  assistant  of  the 
court,  whose  duty  it  is  to  make  memorial  of 
its  orders  and  directions;  and  whenever  it 
is  brought  to  the  knowledge  of  the  court 
that  the  record  made  by  the  clerk  does  not 
correctly  show  the  order  or  direction  which 
Avas  in  fact  made  by  the  court  at  the  time 
it  was  given,  the  authority  of  the  court  to 
cause  its  record  to  be  corrected  in  accord- 
ance with  the  facts  is  undoubted.  Kauf- 
man V.  Superior  Court,  115  Cal.  152;  46 
Pac.  904;  Crim  v.  Kessing,  89  Cal.  478;  25 
Am.  St.  Eep.  491;  26  Pac.  1074.  While  the 
court  has  power  to  correct  and  set  aside  an 
order  entered  inadvertently,  j'et  it  has  no 
authority  to  do  any  more  than  to  make 
those  records  correspond  with  the  actual 
facts;  it  cannot,  under  the  form  of  an 
amendment,  correct  a  judicial  error,  nor 
make  of  record  an  order  or  judgment  which 
was  never  in  fact  given  or  made  (Kauf- 
man v.  Shain,  111  Cal.  16;  52  Am.  St.  Eep. 
139;  43  Pac.  393;  People  v.  Curtis,  113  Cal. 
68;  45  Pac.  180;  People  v.  Durrant,  116 
Cal.  179;  48  Pac.  75);  and  to  correct  or  set 

§  129.  Courts  of  record  may  make  rules.  Every  court  of  record  may 
make  rules  not  inconsistent  with  the  laws  of  this  state,  for  its  own  govern- 
ment and  the  government  of  its  officers ;  but  such  rules  shall  neither  impose 
any  tax,  charge  or  penalty  upon  any  legal  proceeding,  or  for  filing  any 
pleading  allowed  by  law,  nor  give  any  allowance  to  any  officer  for  services. 

When  rules  take  effect.    Post,  §  130.  from    their    operation,    whenever    the    pur- 

Legislation  §  129.  1.  Enacted  March  11,1873;  poscs  of  justice  require  it  (People  v.  Wil- 
based  on  Practice  Act,  §  643,  which  read:  "The  liams,  32  Cal.  280;  Pickett  V.  Wallace  54 
supreme  court  may  make  rules  not  inconsistent  fjo]  147.  c;,,lKvnTi  v  WqUq^o'  7-5  r'oi  -in-. 
with  the  constitution  and  laws  of  the  state,  for  Vf  r>V  '  ^ln\  ^^  ^  '  JT  ^^^^^J^>  '^  ^^^-  -^^'^ 
its  own  government,  and  the  government  of  the  ■'-f  J^a<^-  1'^^),  .Yet  tile  rules  cannot  be 
district  courts,  aud  the  superior  court  of  the  city 
of  San  Francisco;  but  such  rules  shall  not  be  in 
force  until  thirty  days  after  their  adoption  and 
publication."  (The  superior  court  of  San  Fran- 
cisco was  abolished  May  1,  1857.)  When  en- 
acted in  1872,  the  first  clause  of  this  section  was 
the  same  as  the  amendment  of  1880  and  of  the 
present  amendment  (1913),  the  second  clause 
then  reading,  "but  such  rules  must  neither  im- 
pose a  tax  or  charge  upon  any  legal  proceeding 
nor  give  an  allowance  to  anv  officer  for  services." 

2.  Amended  by  Code  A'mdts.  1880,  p.  37, 
changing  the  second  clause  to  read,  "but  such 
rules  shall  neither  impose  any  tax  or  charge  upon 
any  legal  proceeding,  nor  give  any  allowance  to 
any  officer  for  services." 

3.  Amended  by  Stats.  1913,  p.  90,  the  changes 
being  in  the  second  clause. 

Power  to  make  rules.  The  rules  of  court 
are  but  the  means  to  accomplish  the  ends 
of  justice  (Pickett  v.  Wallace,  54  Cal.  147), 
and  may  be  altered  or  amended  from  time 
to  time,  as  the  ends  of  justice  or  the  con- 
venience of  the  court  require.  Meyer  v. 
Tupper,  66  U.  S.  (1  Black)  522;  17  L.  Ed. 
180;  Ex  parte  Thistleton,  52  Cal.  220. 
Although  the  court  has  power  to  suspend 
its   own   rules,  or   except   particular   cases 


changed  to  deprive  a  party  of  a  statutory- 
right.  People  v.  McClellan,  31  Cal.  lOi. 
Eules  cannot  contravene  the  statutes  of 
the  state  (Estate  of  Jessup,  81  Cal.  408; 
6  L.  E.  A.  594;  21  Pac.  976;  22  Pac.  742, 
1028;  People  v.  McClellan,  31  Cal.  101), 
and  the  parties  have  no  unqualified  right 
to  stipulate  for  their  abrogation.  Eeynolds 
V.  Lawrence,  15  Cal.  359.  They  must  be 
construed  the  same  as  statutes  are  con- 
strued (Hanson  v.  McCue,  43  Cal.  178), 
and  they  bind  the  court,  as  well  as  the 
suitor,  until  they  are  abrogated.  Hanson 
V.  McCue,  43  Cal.  178. 

Subjects  governed.  Such  rules  may  pre- 
scribe the  time  for  filing  transcripts  on 
appeal  (McKay  v.  Superior  Court,  86  Cal. 
431;  25  Pac.  10);  and  may  require  a  de- 
posit of  the  clerk's  costs,  on  appeal  from 
a  justice's  court.  Behvmer  v.  Superior 
Court,  18  Cal.  App.  464 j  123  Pac.  340.  A 
rule  of  the  supreme  court,  requiring  points 
and  authorities  in  behalf  of  the  respective 
parties  to  be  filed  within  a  specified  time 


81  rROBATIONARY    TREATMENT   OF   JUVL'NIT.E   OFFENDERS.  §§  130,  131 

after  the  filiii<,'  of  tlie  transcript  confers  rules  he  must  incoriiorate  them  in  tlie  rec- 
rights  that  may  be  enforced  liy  ]iti<,'ants.  onl.  Cutter  v.  f'aruthers,  48  Cal.  178; 
Barnhart  v.  Conlcy,  17  Cal.  App.  23U;   119       Sweeney  v.  Stanford,  60  Cal.  3G2. 

i.""    '•     -.        ,            mi-                                     ^        •,.  Rules  Of  court.    Sir  note  41    Am.  .St.  Rep.  639. 

Proof  of  rules.      Ihe  supreme  court  will  v.-ilidity  of  court  rule  in  contravention  of  oom- 

not    take    judicial    notice    of    the    rules    of  niou  law  or  statute.    Sc<-  ncitc  19  Ann.  Cas.  801. 

the  superior  court    (Warden   v.   Men<iocino  ,   f'^"'''":.  °^  ^°]]^^  ^°  disregard   rules.     See   note 

o          i         on    ,-1    1      r---      /-<    ii                 f         ii  "   Ann.   (as.   592. 

County,  32   Cal.  G.ju;   Cutter  v.   Caruthers, 

48  Cal.  178;   Sweenev  v.  Stanford,  (iO  Cal.  CODE  COMMISSIONERS' NOTE.   Slats.  18C3, 

n/.o\  11  ■       i.  !•  I  P-  •i'^a;    Slats.   187U,   ii.   .'J28. 

362);   and  where  a  party  relies  ui)ou  such 

§  130.  When  rules  take  effect.  Rules  adopted  by  the  supreme  court  shall 
take  effect  sixty  days,  and  rules  adopted  by  superior  courts,  thirty  days 
after  their  publication.  When  adopted  they  shall  be  spread  upon  the  record 
of  the  court,  printed  and  filed  in  the  office  of  the  clerk  of  the  court. 

Legislations  130.     1.   Enacted  March  11,  1873  3.  Amended  by  Stats.  1913,  p.  90,  adding  the 

(based   on   Stats.    1863,    p.   335),    and   then   read:  second    sentence,"  Quasre    as    to    "printed   ...   in 

"The    rules    adopted    by    the    supremo    court    take  the  office  of  the  clerk  of  the  court." 

effect    sixty    davs.    and    those    adopted    bv-  other  „^._„   „„,„„ ,„„„„„.  „„„„      „  .„„„ 

courts,   thirty   dkys,   after   their  pul.lication."  CODE  COMMISSIONERS'  NOTE.    Stats.  1863. 

2.   Amended  by  C'odt   Aiiults.  1880,  p.  37.  P-   •  =  ■■'■ 

§  131.  Probationary  treatment  of  juvenile  offenders.  1.  The  judge  of  the 
superior  court  in  and  for  each  county  or  city  and  county  of  the  state,  or 
where  there  are  more  than  one  judge  of  said  court,  a  majority  of  the  judges 
thereof  by  an  order  entered  in  the  minutes  of  such  court,  may  appoint  seven 
discreet  citizens  of  good  moral  character,  and  of  either  sex,  to  be  knov.-n  as 
probation  committee,  and  shall  fill  all  vacancies  occurring  in  such  committee. 
The  clerk  of  said  court  shall  immediately  notify  each  person  appointed  on 
said  committee  and  thereupon  said  persons  shall  appear  ]:efore  the  judge  of 
said  superior  court  in  said  county  and  qualify  by  taking  oath,  to  be  entered 
in  the  minutes  of  said  superior  court,  to  faithfully  perform  the  duties  of  a 
member  of  such  probation  committee. 

2.  The  members  of  such  probation  committee  shall  hold  office  for  four 
years,  and  until  their  successors  are  appointed,  provided  that  of  those  first 
appointed,  one  shall  hold  office  for  one  year,  two  for  two  years,  two  for  three 
years,  and  two  for  four  years,  the  terms  for  which  the  respective  members 
first  appointed  shall  hold  office  to  be  determined  by  lot  as  soon  after  their 
appointment  as  may  be.  When  any  vacancy  occurs  in  any  probation  com- 
mittee by  expiration  of  the  term  of  office  of  any  member  thereof,  the  suc- 
cessor shall  be  appointed  to  hold  for  the  term  of  four  j^ears;  when  any 
vacancy  occurs  for  any  other  reason,  the  appointee  shall  hold  for  the  unex- 
pired term'  of  his  predecessor. 

3.  The  members  of  the  probation  committee  shall  serve  without  compensa- 
tion. 

4.  The  superior  court  or  any  judge  thereof  may  at  any  time  require  said 
probation  committee  or  a  probation  officer  to  examine  into  the  qualifications 
and  management  of  any  society,  association  or  corporation,  other  than  a 
state  institution,  applying  to  receive  any  child  or  children  under  this  act, 
and  to  report  to  the  court,  provided  that  nothing  in  this  section  shall  be  con- 
strued as  giving  any  probation  committee  or  probation  officer  any  power  to 
enter  any  institution  without  the  consent  of  such  institution. 

It  shall  be  the  duty  of  each  probation  committee  prior  to  December  first  in 
each  year  to  prepare  a  report  in  writing  on  the  qualifications  and  manage- 
ment of  all  societies,  associations  and  corporations,  except  state  institutions, 

1  Fair. — 6 


§  13]  GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE.  82 

applying  for  or  receiving  any  child  under  this  act  from  the  courts  of  their 
respective  counties,  and  in  said  report  said  committee  may  make  such  sug- 
gestions or  comments  as  to  them  may  seem  fit ;  said  report  to  be  filed  in  the 
office  of  the  clerk  of  the  court  appointing  such  committee,  for  the  informa- 
tion of  the  judges  thereof. 

5.  In  counties  of  the  first  class  there  shall  be  one  probation  officer  and  not 
more  than  five  deputy  probation  officers;  in  counties  of  the  second  class,  one 
probation  officer  and  not  more  than  one  deputy  probation  officer;  in  all 
other  counties  there  shall  be  one  probation  officer.  In  any  county  or  city 
and  county  additional  deputy  probation  officers  may  be  appointed  and  their 
appointment  approved  or  disapproved  as  hereinafter  provided,  from  time 
to  time  when  in  the  opinion  of  the  court  it  may  be  necessary,  provided  that 
they  serve  without  salary. 

6.  The  probation  officer  and  deputy  probation  officers  in  all  the  counties  of 
the  state  shall  be  allowed  such  necessary  incidental  expenses  as  may  be  au- 
thorized by  a  judge  of  the  superior  court ;  and  the  same  shall  be  a  charge 
upon  the  county  in  which  the  court  appointing  them  has  jurisdiction,  and 
the  said  expenses  shall  be  paid  out  of  the  county  treasury  upon  a  warrant 
therefor  issued  by  the  said  court. 

7.  The  offices  of  probation  officers  and  deputy  probation  officers  are  hereby 
created.  The  appointments  of  probation  officers  and  deputy  probation 
officers  to  serve  hereunder  in  any  county  or  city  and  county  shall  be  made 
by  the  probation  committee  of  said  county  or  city  and  county  from  discreet 
citizens  of  good  moral  character.  The  appointments  by  each  probation  com- 
mittee shall  be  made  in  writing,  signed  by  a  majority  of  the  members  of 
such  committee,  and  filed  with  the  county  clerk  of  such  county,  and  shall 
be  subject  to  and  shall  take  effect  upon  approval  by  the  judge  of  the  su- 
perior court  appointing  such  committee,  or  by  a  majority  of  the  judges 
thereof  if  there  be  more  than  one;  such  approval  to  be  by  order  entered  in 
the  minutes  of  gaid  court.  The  term  of  office  of  probation  officers  and  of 
deputy  probation  officers  shall  be  two  years  from  the  date  of  the  said  ap- 
proval of  their  several  appointments.  Such  probation  officers  and  deputy 
probation  officers  may  at  any  time  be  removed  by  the  judge  approving  their 
appointment  in  his  discretion. 

8.  Any  of  the  duties  of  the  probation  officer  may  be  performed  by  a  deputy 
probation  officer  and  shall  be  performed  by  him  whenever  detailed  to  per- 
form the  same  by  the  probation  officer ;  and  it  shall  be  the  duty  of  the  pro- 
bation officer  to  see  that  the  deputy  probation  officer  performs  his  duties. 

9.  It  is  the  intention  of  this  act  that  the  same  probation  committees,  the 
same  probation  officers  and  deputy  probation  officers  shall  be  appointed 
and  serve  under  this  act  as  under  the  act  known  as  the  juvenile  court  act, 
and  entitled  ''An  act  defining  and  providing  for  the  control,  protection  and 
treatment  of  dependent  and  delinquent  children ;  prescribing  the  powers 
and  duties  of  courts  with  respect  thereto;  providing  for  the  appointment 
of  probation  officers,  and  prescribing  their  powers  and  duties;  providing  for 
the  separation  of  childi-en  from  adults  when  confined  in  jails  or  other  institu- 
tions; providing  for  the  appointment  of  boards  to  investigate  the  qualifica- 
tions of  organizations  receiving  children  under  this  act,  and  prescribing  the 
dr.ties  of  such  boards;  and  providing  when  proceedings  under  this  act  shall' 


83  PROBATIONARY   TRKATMEXT   OF   JUVENILE   OFFENDERS.  §  l31 

be  admissible  in  evidciiee,"  and  approved  Febrnary  26,  190:^,  or  under  any 
laws  amending  or  supersedin,^  the  saint*. 

10.  Either  at  the  time  of  the  arrest  for  crime  of  any  person  over  sixteen 
years  of  age,  or  at  the  time  of  the  plea  or  verdict  of  guilty,  the  probation 
officer  of  the  county  of  the  jurisdiction  of  said  crime  shall,  when  so  directed 
by  the  court,  inquire  into  the  antecedents,  cliaracter,  history,  family  environ- 
ment and  offense  of  such  person,  and  nnist  rei)ort  the  same  to  the  court  and 
file  his  report  in  writing  in  the  records  of  said  court.  His  report  shall  con- 
tain his  recommendation  for  or  against  the  release  of  such  person  on  proba- 
tion. If  ail}'  such  person  shall  I  e  released  on  probation  and  committed  to 
the  care  of  the  probation  officer,  such  officer  must  keep  a  complete  and  ac- 
curate record  in  suitable  books  of  the  history  of  the  case  in  court  and  of  the 
name  of  the  probation  officer,  and  his  acts  in  connection  with  said  case ;  also 
the  age;  sex;  nativity;  residence;  education;  habits  of  temperance;  whether 
married  or  single;  and  the  conduct,  employment  and  occupation  and  par- 
ents' occupation  and  condition  of  such  person  so  committed  to  his  care 
during  the  term  of  such  probation,  and  the  result  of  such  probation,  which 
record  shall  be  and  constitute  a  part  of  the  records  of  the  court  and  shall 
at  all  times  be  open  to  the  inspection  of  the  court  or  any  person  appointed 
by  the  court  for  that  purpose,  as  well  as  of  all  magistrates  and  the  chief  of 
police  or  other  head  of  the  police,  unless  otherwise  ordered  by  the  court. 
The  said  books  of  record  shall  be  furnished  by  the  county  clerk  of  said 
county,  and  shall  be  paid  for  out  of  the  county  treasury. 

11.  The  probation  officer  shall  furnish  to  each  person  released  on  probation 
and  committed  to  his  care,  a  written  statement  of  the  terms  and  conditions 
of  his  probation,  and  shall  report  to  the  court,  judge,  or  justice  appointing 
liim,  any  violation  or  breach  of  the  terms  and  conditions  imposed  by  such 
court  on  the  person  placed  in  his  care. 

12.  The  probation  officers  and  deputy  probation  officers  appointed  under 
this  section  shall  serve  as  such  probation  officers  in  all  courts  having  original 
jurisdiction  of  criminal  actions  in  this  state. 

13.  Such  probation  officer  and  each  deputy  probation  officer  shall  have,  as 
to  the  person  so  committed  to  the  care  of  such  probation  officer  or  deputy 
probation  officer,  the  powers  of  a  peace-officer. 

Juvenile  court  law.  Stats.  1909,  p.  213.  character,  history,  and  offense  of  persons  over 
T  no-iciofinn  R -1 91  t  A  11  J  1  o.  i  -lAno  t^e  agc  of  sixtcen  years  arrested  for  a  crime 
p.  sr^nf  Z^  Mlk  :  h.  ^T^ttud  Jes'  n*d%.l^rces  -f  -  ^^^  ,  i"Hsdiction  of  the  court  appoint.n. 
of  the  courts  having  original  jurisdiction  of  crimi-  'V'"',  ;"!'•  shall  report  the  same  to  the  court.  It 
nal  actions  in  this  state  shall,  from  time  to  time,  ?hall  be  his  duty  to  make  such  report  of  all  cases 
if  in  their  jud^m.-nt  the  interests  of  justice  will  investigated  by  hira,  of  all  cases  placed  in  his 
be  promoted  thereby,  appoint  a  person  or  per-  ^•'''•^  by  the  court,  and  of  all  other  duties  per- 
sons from  among  the  officers  of  any  charity  or-  formed  by  him  m  the  discharge  of  his  oftice 
ganization,  society,  associated  charitie.s,  or  any  as  shall  be  prescribed  by  the  court  or  judge 
strictly  non, sectarian  charitable  association,  or  making  the  appointment,  or  his  successor,  or 
from  among  the  citizens,  either  men  or  \vomen,  ^'V  the  court  or  judge  assigning  the  case  to 
to  perform  the  duties  of  probation  olhcer,  as  here-  him,  or  his  successor,  which  report  shall  be 
inafter  described,  within  the  jurisdiction  and  fi'ed  with  the  clerk  of  the  court,  or  where 
under  the  direction  of  said  court;  to  hold  such  there  is  no  clerk,  the  justice  thereof.  He  shall 
office  during  the  pleasure  of  the  judge  or  justice  keep  a  complete  and  accurate  record  of  each  rase 
making  such  appointment.  2.  No  probation  offi-  committed  to  his  care,  or  investigated  by  him, 
cer  appointed  under  the  provisions  of  this  sec-  in  suitable  books;  also  a  record  of  the  conduct 
tion  shall  receive  compensation  for  service  as  of  the  person  committed  to  his  care  during  such 
such  probation  officer;  provided,  however,  that  term  of  probation,  which  record  shall  be  a  part 
the  probation  officer  shall  be  allowed  his  neccs-  of  the  records  of  the  court,  and  shall  at  all 
sary  expenses,  and  the  same  shall  be  a  charge  times  be  open  to  the  inspection  of  the  court,  or 
upon  the  county  in  which  the  court  appointing  any  person  appointed  by  the  court  for  that  pur- 
him  has  jurisdiction,  and  the  said  expenses  shall  pose,  as  well  as  of  all  magistrates  and  the  chief 
be  paid  out  of  the  county  treasury  upon  a  war-  of  police  or  other  head  officer  of  P"''"^*"-  ""'•'ss 
rant  therefor  issued  bv  tlie  said  court.  3.  Every  otherwise  ordered  by  the  court.  4.  He  shall  fur- 
probation  officer  so  appointed  shall,  when  so  di'-  nish  to  each  person  released  on  probation  com- 
rected  by  the  court,  inquire  into  the  antecedents,  mitted    to    his    care    a    written    statement    of    the 


§§  133,  134   GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE. 


84 


terms  and  conditions  of  his  probation,  and  shall 
report  to  the  court,  judge,  or  justice  appointing 
him,  any  violation  or  breach  of  the  terms  and 
conditions   imposed   by   such   court   on  the   person 


placed    in    his    care.      5.     Such    probation    officer 
shall  have,   as   to  the  person  so  committed  to  his. 
care,  the  powers  of  a  peace-officer." 
3.   Amended  by  Stats.  1905,  p.  780. 


ARTICLE  III. 

JUDICIAL  DAYS. 


§  133.    Days  on  which  courts,  etc.,  may  be  held. 
§  134.     Non-judicial  days. 


§  135.     Appointments  on  non-judicial  days. 


§  133,  Days  on  which  courts,  etc.,  may  be  held.  Courts  of  justice  may  be 
held  and  judicial  business  transacted  on  any  day,  except  as  provided  in  the 
next  section. 

where  no  objection  was  made  in  the  court 
below  (Peterson  v.  Weissbein,  65  Cal.  42; 
2  Pac.  730;  Gregory  v.  Ford,  14  Cal.  138; 
73  Am.  Dec.  639) ;  and  this  section  does 
not  prohibit  the  transaction  of  ministerial 
acts,  such  as  the  service  of  process  (Recla- 
mation District  v.  Hamilton,  112  Cal.  603; 
44  Pac.  1074;  Heisen  v.  Smith,  138  Cal. 
216;  94  Am.  St.  Eep.  39;  71  Pac.  180),  or 
the  presentation  of  an  information  by  the 
district  attorney  for  filing.  Ex  parte 
Sternes,  82  Cal.  245;  23  Pac.  38;  People  v. 
Nogiri,  142  Cal.  596;  76  Pac.  490;  People 
V.  Helm,  152  Cal.  532;  93  Pac.  99. 


Legislation  §  133.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  343),  and  then  read: 
"The  courts  of  justice  may  be  held,  and  judicial 
business  may  be  transacted,  on  any  day  except 
as  provided  in  the  next  section." 

2.   Amended  by  Code  Amdts.  1880,  p.  37. 

Non- judicial  days.  Non  judicial  days  are 
defined  by  this  section  (Adams  v.  Dohr- 
mann,  63  Cal.  417),  as  qualified  by  §  134, 
post  (Eeclamation  District  v.  Hamilton, 
113  Cal.  603;  44  Pac.  1074);  but  the  su-i 
preme  court  is  expressly  exempted  from  its 
operation.  Adams  v.  Dohrmann,  63  Cal. 
417. 

Ministerial  acts.  The  filing  of  a  com- 
plaint on  a  legal  holiday  is  not  sufficient 
ground    for    setting    aside    the    judgment. 


CODE  COMMISSIONERS'  NOTE.    Stats.  1863, 
p.   343. 


Legal  holidays  and  non-judicial  days. 

1.  Holidays.    Ante,  §§  10-13. 

2.  Courts  always  open.    Const.,   art.  vi,  §  5 ; 
ante,  §§  47,   73,   104. 

3.  Injunctions   and  writs  of  prohibition,  is- 
suance of,  on.    Ante,  §  76,  subd.  5;   Const.,  art. 


§  134.  Non-judicial  days.  No  court,  other  than  the  supreme  court,  must 
be  open  for  the  transaction  of  judicial  business  on  any  of  the  holidays  men- 
tioned in  section  ten,  except  for  the  f ollovv^ing  purposes : 

1.  To  give,  upon  their  recpiest,  instructions  to  jury  when  deliberating  on 
their  verdict ; 

2.  To  receive  a  verdict  or  discharge  a  jury; 

3.  For  the  exercise  of  the  powers  of  a  magistrate  in  a  criminal  action,  or 
in  a  proceeding  of  a  criminal  nature. 

Injunctions  and  writs  of  prohibition  may  be  issued  and  served  on  any  day. 

and  provided  further,  that  injunctions  and  writs 
of  prohibition  may  be  issued  and  served  on  any 
day." 

3.  Amended  by  Stats.  1889,  p.  46,  adding 
"on  the  thirtieth  day  of  May"  and  "on  the  ninth 
day  of  September." 

4.  Amended  by  Stats.  1893,  p.  187,  (1)  in 
introductory  paragraph,  adding  "on  the  first  Mon- 
day of  October";  (2),  in  subd.  3,  adding,  after 
"supreme  court,"   "and  the  superior  courts." 

5.  Amended  by  Stats.  1897,  p.  15,  (1)  chan- 
ging "first  Monday  of  September"  to  "first  Mon- 
day of  October,"  and  (2)  omitting  "or  on  a  day 
appointed  bv  the  President  of  the  United  States." 

6.  Amendment  by  Stats.  1901,  p.  120;  un- 
constitutional.   See  note  ante,  §  5. 

7.  Amended  by  Stats.  1907,  p.  681;  the  code 
commissioner  saying,  "The  amendment  recast  the 
section,  substituting  the  words  'on  any  of  the 
holidays  mentioned  in  §  10,'  instead  of  attempt- 
ing to  mention  the  holidays,  which  are  always 
changing.  The  amendments  are  designed  to  con- 
form to  the  section  in  the  constitution:  See  Rec- 
lamation District  v.  Hamilton,   112  Cal.  610." 

Acts  permitted  on  non-judicial  days.    The 

constitution  does  not  prohibit  legislation 
allowing  or  disallowing  transactions  of 
any  and  all  classes  of  judicial  business  ou 
holidays.    People  v.   Soto,   65   Cal.   621;   4 


Legislation  §  134.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  343),  the  introductory 
paragraph  reading,  "No  court  can  be  opened,  nor 
can  any  judicial  business  be  transacted,  on  Sun- 
day, on  the  first  day  of  January,  on  the  fourth 
of  July,  on  Christmas  or  Thanksgiving  day,  or 
on  a  day  on  which  the  general  or  the  judicial 
election  is  held,  except  for  the  following  pur- 
poses"; subds.  1,  2,  3  (which  ended  section) 
reading  as  at  present. 

2.  Amended  by  Code  Amdts.  1880,  p.  38, 
(1)  changing  introductory  paragraph  to  read: 
"No  court  shall  be  open,  nor  shall  any  judicial 
business  be  transacted  on  Sunday,  on  the  first 
day  of  January,  on  the  twenty-second  day  of  Feb- 
ruary, on  the  fourth  day  of  July,  on  the  twenty- 
fifth*  day  of  December,  on  a  day  in  which  an 
election  is  held  throughout  the  state,  or  on  a 
day  appointed  by  the  President  of  the  United 
States,  or  by  the  governor  of  this  state,  for  a 
public  fast,  thanksgiving,  or  holiday,  except  for 
the  following  purposes";  (2)  adding  at  end  of 
subd.  3,  "provided,  that  the  supreme  court  shall 
always  be   open  for  the   transaction   of  business ; 


85 


APPOINTMENTS  ON  NON-JUDICIAL  DAYS. 


§§  135, 139 


he  computeil  for  serving  a  statoment  on 
motion  for  a  new  trial.  Donovan  v.  /TStua 
Tndomnity  Co.,  10  f'al.  App.  72:5;  10.3  Pa.'. 
.'?<)•".  It  is  autjticatcd  by  the  supreme  court, 
in  Peof)le  v.  Ileacork,  10  Tal.  App.  4nO, 
■l.'O,  102  Par.  ;j}.3,  that  it  would  be  safer 
to  treat  Saturday  afternoon  as  a  lej^al 
holiday,  until  the  question  is  determine.!. 

Ministerial  as  distinguished  from  Judicial  acts 

under  prohibitory  Sunday  laws.  See  notes  1  Ann. 
Cas.  -JTH;    18   Ann.   ('.is.    lolo. 

Transaction   of   judicial   business  on  holidays. 

Sf.'    note    1!)    T..    ]{.    .\.    -.',]  7. 

Validity  of  court  business  transacted  on  legal 
holiday.    See  note  10  I..  K.  ,\.   (N.  S.)   791. 

Receiving  verdict  on  Sunday.  See  note  39 
L.  R.  A.  (N.  S.)  844. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  343. 


Pac.  664;  Diepenbrock  v.  Superior  T'ourt, 
153  Cal.  597;  0.-)  Pac.  1121;  Ex  parte  Smith, 
152  Cal.  5(J6;  93  Pac.  191.  The  sor\  ico  of 
a  statement  on  motion  for  a  new  trial  is 
not  iudicial  business  (Reclamation  District 
V.  Hamilton,  112  Cal.  fi03;  44  Pac.  1074); 
neither  is  the  holding  of  a  spe.ual  election 
(People  V.  Loyalton,  147  Cal.  774;  82  Pac. 
620);  nor  the  filinir  of  a  criminal  informa- 
tion (People  V.  Helm,  152  Cal.  532;  93  Pac. 
99) ;  but  a  prisoner  convicted  of  a  felony 
eaunot  be  .sentenced  upon  a  legal  holidav. 
In  re  Smith,  1,52  Cal.  56G;  93  Pac.  191. 
All  transactions  not  within  the  statutory 
■prohibitions  may  be  done  on  legal  holi- 
days. People  V.  Loyalton,  147  Cal.  774;  S2 
Pac.  620.  The  duration  of  an  invalid  holi- 
day cannot  operate  to  extend  the  time  to 

§  135.  Appointments  on  non-judicial  days.  On  all  special  holidays  lh«^ 
courts  of  this  state  shall  be  open  for  the  transaction  of  any  and  all  judicial 
business,  except  the  trial  of  an  action  or  the  rendition  of  a  judgment  based 
upon  a  contract,  expressed  or  implied,  for  the  direct  payment  of  money. 
Provided,  if  any  day  mentioned  in  section  ten  of  this  code  other  than  a 
special  holiday  happen  to  be  the  day  appointed  for  the  holding  or  sitting  of 
a  court,  or  to  which  it  is  adjourned,  it  shall  be  deemed  appointed  for  or 
adjourned  to  the  next  day. 

Legislation  8  135.  1.  Enacted  March  11,  1873, 
and  then  read:  "If  any  of  the  days  mentioned 
in  tlie  last  section  happen  to  be  the  day  appointed 
for  the  holding  of  a  court,  or  to  wliich  it  is  ad- 
journed, it  is  deemed  appointed  for  or  adjourned 
to  the  next  dav." 

2.  Amended  by  Code  Amdts.  1880,  p.  38,  to 
read:  "If  any  day  mentioned  in  the  last  section 
happen  to  be  the  day  appointed  for  the  holding 
or  sitting  of  a  court,  or  to  which  it  is  adjourned, 
it  shall  be  deemed  appointed  for  or  adjourned  to 
the  next  day." 

3.  Amendment  by  Stats.  1901,  p.  120;  un- 
constitutional.    See   note   ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  682,  to  read: 
"If  any  day  mentioned  in  section  ten  be  a  day 
appointed  for  the  holding  or  sitting  of  any  court, 
other  than  the  supreme  court,  it  is  deemed  ad- 
journed to  the  next  succeeding  judicial  day"; 
the  code  commissioner  s-.ying,  "To  conform  with 
§  10    and    with    the    amendments    made    to  §  134." 

5.  Amended  by  Stats.  Extra  Sess.  190T,  p.  9. 


Exception  unconstitutional.  The  clause 
in  this  section,  "except  the  trial  of  an  ac- 
tion or  the  rendition  of  a  judgment  ija.<ed 
upon  a  contract,  expressed  or  implied,  for 
the  direct  payment  of  money,"  is  unconsti- 
tutional. Diepenbrock  v.  Superior  Court, 
153  Cal.  597;  95  Pac.  1121. 

Judicial  acts  on  special  holidays.  The 
superior  court  has  jurisdiction,  on  a  day 
declared  to  be  a  special  holiday,  to  pro-  eo  I 
with  the  trial  of  a  charge  of  felony.  Risser 
V.  Superior  Court,  152  Cal.  531;  93  Pac.  85. 

Power  of  court  to  sit  and  try  causes  on  legal 
holiday  other  than  Sunday.  See  notes  5  Ann. 
Cas.  919;  11  Ann.  Cas.  559. 


ARTICLE  IV. 
PROCEEDINGS  IN  CASE  OF  ABSENCE  OF  JUDGE. 

§  139.     Adjournment  for  absence  of  judge. 

§  140.     Adjournment     till     next     regular     session.      [Repealed.] 

§  139.  Adjournment  for  absence  of  judge.  If  no  judge  attends  on  the 
day  appointed  for  the  holding  or  sitting  of  a  court,  or  on  the  day  to  Avhich 
it  may  have  been  adjourned,  before  noon,  the  sheriff  or  clerk  shall  adjourn 
the  same  until  the  next  day,  at  ten  o'clock  a.  m.,  and  if  no  judge  attend  on 
that  day,  before  noon,  the  sheriff  or  clerk  shall  adjourn  the  same  until  the 
following  day  at  the  same  hour;  and  so  on,  from  day  to  day,  unless  the  judge, 
by  written  order,  directs  it  to  be  adjourned  to  some  day  certain,  fixed  in 
said  order,  in  which  case  it  shall  be  so  adjourned. 


Non-judicial  day.    Ante,  §§  134,  135. 
Legislation  S  139.    1.  Enacted  March  11,  1873 
(based   on   Stats.    1863,   p.   344),    and   theu   read: 


"If  no  judge  attend  on  the  day  appointed  for 
holding  the  court,  or  on  the  day  to  which  it  may 
have   been  adjourned,   before  noon,   the   sherifT  or 


§§  140-144      GENERAL   PROVISIONS  RESPECTING    COURTS   OF   JUSTICE.  86 

clerk  must  adjourn  the  court  until  the  next  day  adjourneil  by  the  clerk  or  sheriff  on  hi& 
at  ten  o'clock;  and  if  no  judge  attend  on  that  failure  to  appear  bv  UOOll  (People  V.  San- 
day,  before  noon,  the  sheriff  or  clerk  must  ad-  i  „  o<  i^„i  ^'-^  «o  +!,«  ,.^„,.f  J,^-,t  cif  onrJ 
journ  the  court  until  the  following  day,  and  so  ^'liez,  24  Cal.  l/),_as  the  court  may  Sit  and 
on,  from  day  to  day,  for  one  week."  exercise  jurisdiction  in   the  trial   of  cases 

2.  Amended  by  Code  Amdts.  18SO.  p.  38,  and  qj.    f^j.    ^jjg    transaction    of    any    legal    busi- 
then  had  the  words   "for  one  week,"   after    "from  ^^^^  ^^  ^^^,  ^.^      ^^.^            ^^  ^^^^^^    ^^  ^^^, 

day    to    aa>.  .,..,,•'  -,  A  fnr^^-^^ 

3.  Amended  by  Stats.  1907,  p.  681;  the  code  judicial  days.  In  re  Gannon,  b9  Cal.  o41; 
commissioner  saying,  "The  change  strikes  out  j]^  Pac.  240.  Daily  adjournments  mav  be 
the  words  'for  one  week.'  Neither  the  sheriff  ,  -,  n  f  ^^  ~.p„i,  ThoTPaq  v  Fof/artv 
nor  the  clerk  can,  under  the  constitution,  be  au-  ,  ^"i  ,  ^  ,^  ^"^  ^®®  "  -^'^O'"^^  ^-  -^  Ogarty, 
thorized   to    adjourn   court,    and   thus   close   it   fur  19  Lai.  d44. 

a  definite  time,  other  than  from  day  to  day."  Meaning  of  "absent"  or  "absence"   aa  applied 

Adjournment  by   clerk   or   sheriff.     The      to  judge.   See  note  Ann.  Cas.  1912C,  353. 

in  1    P   m«v   nnpn    thp   cniirt   «t   -nv   hour  bp-  CODE  COlVnvUSSIONEES'  NOTE.     Stats.  1863. 

ludge  ma^    open  the  court  at  ^n)    Hour  De  3^^     Thf^mas  v.  Fogany,  19  Cal.  644;  People 

fore  the  close  of  the  day  where  it  had  been       y   Sanchez,  24  Cal.  17. 

§140.     [Adjournment  till  next  regular  session.     Repealed.] 

Sessions.    Ante,  §  73.  tutional.    See  note  ante,  §  5. 

■  ,  ..■       o  1  ^n     -     -r.        .   J  -..^       ,   ,  1    -.  o~o  ■*.   Repealed  by  Stats.   1907,  p.  681 ;  the  code 

Legislations  140.    1.  Enacted  March  11,  18.3.  commissioner  saving,  "Repealed,  because  both  un- 

2.   Amended  by  Code  Amdts.  1880,  p.  38.  necessary    and   unconstitutional." 
8.  Repeal  by  Stats.   1901,  p.   120;    unconsti- 

ARTICLE  V. 

PROVISIONS  EESPECTING   PLACES  OF   HOLDING  COURTS. 

S  142.     Change  in  certain  cases  of  place  of  hold-         §  143.     Parties  to  appear  at  place  appointed. 

ing  court.  §  144.     When   sheriff   to   provide   courtrooms,    etc. 

§  142.  Change  in  certain  cases  of  places  of  holding  court.  The  judge  or 
judges  authorized  to  hold  or  preside  at  a  court  appointed  to  be  held  at  a 
particular  place  in  a  city  and  county,  county,  city,  or  town,  may,  by  an 
order  filed  with  the  city  and  county  or  county  clerk,  and  published  as  he  or 
they  may  prescribe,  direct  that  the  court  be  held  or  continued  at  any  other 
place  in  the  city  and  county,  count}",  city,  or  town  than  that  appointed,  when 
war.  insurrection,  pestilence,  or  other  public  calamity,  or  the  danger  thereof^ 
or  the  destruction  or  danger  of  the  building  appointed  for  holding  the  court 
may  render  it  necessary ;  and  may  in  the  same  manner  revoke  the  order,  and 
in  his  or  their  discretion,  appoint  another  place  in  the  same  city  and  county^ 
county,  city,  or  town,  for  holding  the  court. 

Legislation  §  142.     1.  Enacted  March  11,  1873  the  court,  may  render  it  necessary;  and  may,  in 

(based   on   Stats.    1863,   p.    344),    and   then   read:  the    same   manner,   revoke   the   order,    and,    in   his 

"A  judge  authorized  to  hold  or  preside  at  a  court  discretion,  appoint  another  place  in  the  same  city, 

appointed   to   be  held  in  a   county,   city,   or  town,  town,   or   county,   for  holding  the   court." 
may,  by  an  order  filed  with  the  county  clerk,  and  2.   Amended  by  Code  Amdts.  ISSO,  p.  38. 

Dublished    as    he    mav    prescribe,    direct    that    the  -  .    .   ,  ..........  .^._       .^._ 

?our    be  held  or  continued  at  any  other  place  in  ,„,^°^"  °f  ^"^^  court  to  sit  at  place  other  than 

the    citv,    town,    or    county    than    that    appointed.  county  seat.     See  note   8  Ann.   Cas.  939. 

when  war,   insurrection,  pestilence,   or  other  pub-  CODE  COMMISSIONERS'  NOTE.     Stats.  1863, 

lie   calamity,    or   the    dangers   thereof,    or   the    de-  p_  344_ 

struction   of   the   building   appointed   for   holding 

§  143.  Parties  to  appear  at  place  appointed.  When  the  court  is  held  at 
a  place  appointed,  as  provided  in  the  last  section,  every  person  held  to  ap- 
pear at  the  court  m.ust  appear  at  the  place  so  appointed. 

Legislation  §  143.     1.  Enacted  March  11,  1872;  CODE  COMMISSIONERS'  NOTE.     Stats.  1863.. 

bas(-d  on  Stats.   1863,  p.  344.  p.  344. 

2.   Re-enacted    by    Code    Amdts.    1880,   p.    39, 
in  amending  Part  I. 

§  144.  When  sheriff  to  provide  courtrooms,  etc.  If  suitable  rooms  for 
holding  the  superior  courts  and  the  chambers  of  the  judges  of  said  courts 
are  not  provided  in  any  county  by  the  supervisors  thereof,  together  with 
the  attendants,  furniture,  fuel,  lights  and  stationery,  sufficient  for  the  trans- 
action of  business,  the  courts,  or  the  judge  or  judges  thereof,  may  direct  the 
sheriff  of  the  county  to  provide  such  rooms,  attendants,  furniture,  fuel,  lights 


87      WHAT    COURTS   SHALL    HAVE   SEALS — SEAL    OF   SUPREME   COURT.       §§  147,  148 

and  stationery;  and  the  expenses  incurred,  certified  by  the  jud^'e  or  jnd£?es 
to  be  correct,  are  a  charge  against  the  county  treasury,  and  must  be  paid  out 
of  the  general  fund  thereof. 

against  the  founty  for  suitable  rooms  for 
lioliiiiif,'  court,  an<l  for  tiie  chambers  of  the 
.iu'lt;os,  where  thoy  are  uot  otherwise  pro- 
vided (Ex  parte  Keis,  64  Cal.  233;  30  Pac. 
S06),  an<l  the  expense  thereof  is  to  be  au- 
dited bv  the  judge  of  the  court.  Ex  parte 
Widber,  91'  Cal.  3(57;  27  Pac.  733.  The 
grant  of  power  is  limited  by  the  express 
language  of  the  section,  and  cannot  be  ex- 
tended by  implication;  its  exercise  is  justi- 
fieil  only  by  necessity  (Falconer  v.  lluirhes, 
8  Cal.  App!  56;  96  Pac.  19);  and  the  judges 
are  not  authorized  to  interfere  with  the 
action  of  the  board  of  supervisors  in  such 
matters,  even  though  there  is  an  unneces- 
sary and  unreasonable  delay  on  the  part  of 
the  board  (Los  Angeles  County  v.  Superior 
Court,  93  Cal.  380;  28  Pac.  1062);  nor  are 
the  judges  authorized  to  select  a  particular 
room,  where  another  room  has  been  pro- 
vided by  the  board,  if  it  is  suitable  for  the 
purpose.  San  Joao,uin  County  v.  Budd,  96 
Cal.  47;  30  Pac.  967. 

NOTE.    Stats.  1863, 


Legislation  «  144.  1.  Ennct.'d  M.irch  11.  1872 
(based  on  Stats.  1863,  p.  34.''>),  tiud  then  n-ad : 
"If  suitable  rooms  for  holding  the  district  courts, 
county  courts,  and  probate  courts,  and  the  cham- 
bers of  the  judges  of  such  courts,  be  not  pro- 
vided in  any  county  by  the  supervisors  thereof, 
together  with  attendants,  furniture,  fuel,  lights, 
and  stationery  sufHcient  for  the  transaction  of 
business,  the  courts  may  direct  the  sheriff  of 
such  county  to  provide  such  rooms,  attendants, 
furniture,  fuel,  lights,  and  stationery,  and  the  ex- 
penses thereof  are  a  charge  against  such  county." 

2.  Amended  by  Code  Amdts.  18SO.  p.  3;),"  to 
read  as  at  present,  except  for  the  changes  noted 
by  the  code  commissioner,  infra,  and  those  brack- 
eted  in  and   following  his   not<'. 

3.  Amendment  by  Stats.  1901,  p.  120;  un- 
constitutional.   See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907.  p.  680;  the  code 
commissioner  saying,  "The  amendment  consists 
in  [(!)]  the  insertion  of  the  word  'county'  in 
place  of  'city  and  county,'  where  those  last  words 
occur  in  the  section,  and  in  omitting  the  words 
'city  and  county [,  or]'  when  they  occur  earlier 
in  the  section,  they  being  unnecessary  in  view 
of  the  amendment  to  §  17  adopted  in  1903  (Stats. 
1903,  p.  134)";  (2)  changing  the  words  "courts 
be  not"  to  "courts  are  not";  (3)  changing  the 
words  "shall  be  a  charge"  to  "are  a  charge" ; 
and  (4)  changing,  in  the  last  line,  the  words 
"and   paid   out"   to   "and  must   be  paid   out." 

Power  to  provide  courtrooms.  This  sec- 
tion gives  the  court  power  to  create  charges 


CODE  COMMISSIONERS' 
p.  345. 


ARTICLE  VI. 

SEALS  OF  COURTS. 


§  147.    What  courts  shall  have  seals. 
§  148.     Seal  of  supreme  court. 
§  149.     Seals  of  superior  courts. 

§  150.     Seals  of  police  courts  of  cities  and   coun- 
ties. 


§  151.  Seals,  how  provided;  private  seals,  when 
used. 

§  152.     Clerk  of  court  to  keep  seal. 

§  153.  Seals  of  courts,  to  what  documents  af- 
fixed. 


§  147.     What  courts  shall  have  seals.    Each  of  the  following  courts  shall 
have  a  seal: 

1.  The  supreme  court ; 

2.  The  superior  courts ; 

3.  The  police  court  of  every  city  and  county. 


Seal. 

1.  Defined. 

2.  Of  court,  judicial  notice  taken  of.    Post, 
§  1875,  subd.  4. 

3.  Court   commissioner  may  provide   o£Bcial. 
Post.  S  259,  subd.  5. 

Police  courts. 

1.  Are  not  courts  of  record.    See  ante,  §§33, 
84. 

2.  Have  a  seal.    Post,  §  150. 

Legislation  §  147.  1.  Enacted  March  11.  1872 
(based  on  Stats.  1863,  p.  344),  and  then  read: 
"Each  of  the  following  courts  has  a  seal:  1.  The 
supreme    court;    2.    The    district    courts;    3.    The 


county  courts;  4.  The  probate  courts;  5.  The  mu- 
nicipal criminal  court  of  the  city  and  county  of 
San  P^rancisco;  6.  The  police  court  of  the  city 
and   county  of   San  Francisco." 

2.   Amended  by  Code  Amdts.  1880,  p.  39. 

Effect  of  seal.  The  fact  that  a  court 
has  a  seal  does  not  necessarily,  and  of 
itself,  make  such  court  a  court  of  record- 
Ex  parte  Thistlcton,  52  Cal.  220. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  344. 


§  148.  Seal  of  supreme  court.  The  seal  used  by  the  supreme  court,  abol- 
ished by  the  constitution,  shall  be  the  seal  of  the  supreme  court  herein  pro- 
vided for;  but  the  said  court  may  direct  the  clerk  of  the  supreme  court  to 
provide  two  duplicates  of  said  seal,  each  of  Avhich  shall  be  considered  the 
same  as  and  have  the  same  force  and  effect  as  the  original. 


Legislation  §  148.  1.  Enacted  March  11,  1872 
(based  on  Stats.  1863,  p.  344),  and  then  read: 
"The  seal  now  used  by  the  supreme  court  shall 
be  the  seal  of  that  court ;  and  where  seals  have 
been  provided  for  the  district,  county  and  pro- 
bate   courts,    municipal    criminal    and    the    police 


court  of  the  city  and  county  of  San  Francisco, 
such  seals  shall  continue  to  be  used  as  the  seals 
of  those  courts." 

2.    Amended  by  Code  Amdts.  18SO.  p.  39. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  344. 


§§  149-153         GENERAL  PROVISIONS  RESPECTING  COURTS  OF  JUSTICE.  88 

§  149.  Seals  of  superior  courts.  The  seals  of  the  superior  courts  shall  be 
circular,  not  less  than  one  and  three  fourths  inches  in  diameter,  and  having 
in  the  center  any  word,  words,  or  design  adopted  by  the  judges  thereof,  and 
the  following  inscription  sui^rounding  the  same:  "Superior  Court ,  Cali- 
fornia," inserting  the  name  of  the  county  or  city  and  county;  provided,  that 
the  seal  of  any  such  court,  which  has  been  adopted  previous  to  the  passage 
of  this  act,  shall  be  the  seal  of  such  court  until  another  be  adopted. 

Validating   writs,    process,    and    certificates   is-  For    the    district    courts:    'District    Court,    

sued  from   superior   courts  before   seal  provided.  County,   California.'      (Inserting  the  name  of  the 

See  Stats.   1880,  p.  19.  county;)    2.   For  the  county  courts :    'County  Court. 

T„^joi   ^'^^a^4n      t     -c        .jtvt       u  -i -i    h  o ->">  County,    California.'       (Inserting    the    name 

Legslatxon§149.     1.   Enacted  March  11,  1873  ^f  the  county;)    3.  For  the  probate  cSurts:    'Pro- 

(based   on   Stats     1863,   p.    344)     and   then   read.  ^^^^^    Court,    County,    California.'      (Insert- 

•The  several  district,  county,  and  probate  courts,  j        ^j^^  ^^^^^  ^^  ^^^^  county.)" 
for  which  separa  e  seals  have  not  been  heretoiore  g^   Amended  bv  Code  Amdts.  1880,  p.  39. 

provided,    shall    direct    their   respective    clerks    to  ■  '  ^ 

procure  seals,   which   shall  be  devised  by   the   re-  CODE  COMMISSIONERS'  NOTE.     Stats.  1863, 

spective  judges  of  such  courts,  and  shall  have  the  p.  344. 
following    inscriptions    surrounding   the    same:    1. 

§  150.  Seals  of  police  courts  of  cities  and  counties.  The  police  court  of 
every  city  and  county  may  use  any  seal  having  upon  it  the  inscription, 
"Police  Court ,"  (inserting  the  name  of  the  city  and  county). 

Legislation  §  150.       Added     by     Code     Amdts.  court   may  use   his   private   seal,   whenever   a   seal 

18SO,  p.   39;   based  on  Stats.   1863,  p.   344,   and  is  required." 

original     code  §  150,     both     being     identical,     and  rr^nf  rmvnvTTcaTnvp-pcr  •ktotx-      Gf„f„    iokq 

reading,   "Until  the  seals  devised,   as  provided  in  o^?     COMMISSIONERS'-  NOTE.     Stats.  1863, 

the  last   section,   are  procured,   the   clerk   of   each  P-  ^^4. 

§151.  Seals,  how  provided ;  private  seals,  when  used.  Courts  which  have 
not  the  necessary  seal  provided,  or  the  judge  or  judges  thereof,  shall  request 
the  supervisors  of  their  respective  counties,  or  cities  and  counties,  to  provide 
the  same,  and  in  case  of  their  failure  to  do  so  may  order  the  sheriff  to  pro- 
vide the  same,  and  the  expense  thereof  shall  be  a  charge  against  the  county 
or  city  and  county  treasury,  and  paid  out  of  the  general  fund  thereof;  and 
until  such  seal  be  provided  the  clerk  of  each  court  may  use  his  private  seal 
whenever  a  seal  is  required. 

Legislation  §  151.       Added     by     Code     Amdts.         original  code  supra,  S  150, 
1S80,  p.  39;   based  on  Stats.  1863,  p.  344,  and 

§  152.  Clerk  of  court  to  keep  seal.  The  clerks  of  the  court  shall  keep  the 
seal  thereof. 

Legislation  §  152.    1.  Enacted  March  11,  1873,        keep  the  seal  thereof." 
as  j  iji     (bastd    on    Stats.    1863,    p.    344),    and  3.   Amended  by  Code  Amdts.  1880,  p.  40,  and 

then  read:    "§  152.      The  clerk  of  the  court  must         renumbered  §  152. 

§  153.  Seals  of  courts,  to  what  documents  affixed.  The  seal  of  a  court 
need  not  be  affixed  to  any  proceeding  therein  or  document,  except: 

1.  To  a  writ; 

2.  To  the  certificate  of  probate  of  a  will  or  of  the  appointment  of  an  ex. 
ecutor,  administrator,  or  guardian; 

3.  To  the  authentication  of  a  copy  of  a  record  or  other  proceeding  of  a 
court,  or  of  an  officer  thereof,  or  of  a  copy  of  a  document  on  file  in  the  office 
of  the  clerk. 

Legislation  g  153.    1.  Enacted  March  11,  1873,  "seal  of  a  court"  were  printed  "seal  of  the  court," 

as  §  152     (based    on    Stats.    1863,    p.    344),    and  and   (2)   the  words   "certificate  of  probate,"   "cer- 

then   read:    "The    seal    of   the   court    need   not   be  tificate  of  the  probate." 

afiixed  to  any  proceedings  therein,  except;    1.   To  3.    Amended  by  Code  Amdts.  1880,  p.  40,  and 

a  writ;   2.  To  the  proof  of  a  will,   or  the  appoint-  renumbered  §  153. 

ment  of  an  executor,   administrator,   or  guardian;  ^        „    .^.^  vnTV      <5t.f=    i  obq 

3.  To  the  authentication  of  a  copy  of  a  record  or  CODE  COMMISSIONERS'  NOTE.     Stats.  1863, 

other  proceeding  of  the  court,  or  an  officer  thereof,  P-  S'*-*-      The  provision  permitting  seals  to  be  im- 

for  the  purpose  of  evidence  in  another  court."  pressed  on  paper  is  omitted    as  a  general  provis- 

2.   Amended  by  Code  Amdts.  1873-74,  p.  284,  JO"   'o   the    same    end   is   contained  la   the   prelim- 

to  read  as  at  present,  except  that  (1)   the  worda  m-'^ry  provisions  of  this  code. 


89      QUALIFICATIONS  OF  JUSTICES— RESIDENCE  OF  SUI'ERlOU  JUDGES.       §§  luG-158 

TITLE  II. 
JUDICIAL  OFFICERS. 

Chapter  I.  Judicial  Officers  in  General.     §§  156-102. 

If.  Powers  and  Duties  of  Judges  at  Chambers.     §§  1C5-1G7, 

III.  Disqualifications  of  Judges.     §§  170-173. 

IV.  Incidental  Powers  and  Duties  of  Judicial  Officers.     §§  176-179. 

V.     Miscellaneous  Provisions  respecting  Courts  and  Judicial  Olficcrs.     §§  182-188. 

CHAPTER  L 

JUDICIAL  OFFICERS  IN  GENEEAL. 

§156.    Qualifications  of  justices  of  supreme  court.  §161.    Justices    and    judges    ineligible    to    other 

§157.     Qualilications  of  superior  judges.  than  judicial  office. 

§158.     Ktsidence  of  sujierior  jud),'cs.  §  1C2.     County    or    probate   judge    who    may    hold 

§  159.     Kesidence   and  qualification  of  justices  of  term    in    another    county.     How    desig- 

the   peace.  nated.      [Kepcaled.j 
§  160.     Judges  holding  superior  courts  at  request 

of  governor. 

§  156.  Qualincations  of  justices  of  supreme  court.  No  person  shall  be 
eligible  to  the  office  of  chief  or  associate  justice  of  the  supreme  court  unless 
he  shall  have  been  a  citizen  of  the  United  States  and  a  resident  of  this  state 
for  two  years  next  preceding  his  election  or  appointment,  nor  unless  he  shall 
have  been  admitted  to  practice  before  the  supreme  court  of  the  state. 

Judge   must    be    an   attorney.     Const.,    art.    vi,  3.   Repeal   by   Stats.    1901,  p.   120;   unronsti- 

§  23.  tutional.     See  note   ante,  §  5. 

Legislation  §  156.    1.  Enacted  March  11.  1878  Qualification  Of  judges.     Under  the  old 

(bastd   on   Stats.    1863,   p.   333),   and   then   read:  constitution,    judges    of    the    supreme    court 

•No  person  is  eligible  to  the  office  of  justice  of  -^vere  not  required  to  be  licensed  attorneys. 

the  supreme  court  who  has  not  been  a  citizen  of        -r, ,„  „   ti.^_„.^,.    qo  r'«i    one 

the  United  States  and  a  resident  of  this  state,  for  People  V.  Dorsev,  32  Cal.  296. 

two  years  next  preceding  his  election."  CODE  COMMISSIONERS'  NOTE.     Stats.  1863, 

2.   Amended  by  Code  Amdts.  1880,  p.  40.  p.   333. 

§  157.  Qualifications  of  superior  judges.  No  person  shall  be  eligible  to 
the  office  of  judge  of  a  superior  court  unless  he  shall  have  been  a  citizen  of 
the  United  States  and  a  resident  of  this  state  for  two  years  next  preceding 
his  election  or  appointment,  nor  unless  he  shall  have  been  admitted  to  prac- 
tice before  the  supreme  court  of  the  state. 

Legislation  §  157.     1.  Enacted  March  11,  1873  Eligibility.      Effect     of     promise     nOt    tO 

(based  on  Stats.  1863.  p.  335),  and  then  read:  qualify.     A  promise  bv  a  candidate  for  the 

No    person    is    eligible    to    the    office    of    district  "*  •'  i  ,  i     '   ^  t^      -^     i      j.    t 

judge   who   has   not   been   a   citizen   of  the   United  ofifice,  that  he  would  not  quality  it  elected, 

States  and  a  resident  of  this  state  for  two  years,  does     not     affect     his     eligibility.      Bush     V. 

and   of   the   district   one   year   next   preceding   his  Head    154  Cal    277  •  97  Pac.  512. 
election."  '  '  '  •       -. 

2.  Amended  by  Code  Amdts.  1880,  p.  40.  CODE  COMMISSIONERS'  NOTE.     Stats.  1863, 

3.  Repeal  by  Stats.  1901,  p.  121;  unconsti-  p.  335.  People  v.  Turner,  20  Cal.  144;  People  v. 
tutional.     See  note  ante,  §  5.  De   la   Guerra.  40   Cal.   311. 

§  158.  Residence  of  superior  judges.  Each  judge  of  a  superior  court 
shall  reside  at  the  county  seat  of  tlie  county  in  w-hich  such  court  is  held,  or 
within  three  miles  thereof,  and  within  the  county,  except  that  in  the  counties 
of  Yuba  and  Sutter  the  judge  may  reside  in  either  of  said  counties ;  provided, 
that  when  there  is  more  than  one  judge  of  the  superior  court  in  a  county,  it 
shall  not  be  necessary  for  more  than  one  judge  to  reside  at  the  county  seat, 
as  provided  herein. 

Separate  judges  provided  for  Sutter  and  Yuba  and   each  county   and  probate  judge  must   reside 

counties.    Stats.   1897,  p.  48.  at   the  countv   seat   of  his   respective  county." 

Legislation  g  158.     1.  Enacted  March  11,  1872  2-   A^^^^ed  by   Code  Amdts     1880.   P-   «■   »» 

(based   on   Stats.    1863.   p.    335),    and   then   read:  ^^f-    '  K«^h   judge   of   a   %"P;/^°^   "'"'  i'-''-^'L'"l 

"Each  district  judge  must  reside  in  his  district,  "de   at   the   county   Beat  of  the  county   in  *h.ch 


!§  159, 160 


JUDICIAL   OFPICEES   IN    GENERAL. 


90 


such  court  is  held,  or  within  three  miles  thereof, 
and  within  the  county,  except  that  in  the  coun- 
ties of  Yuba  and  Sutter  the  judge  may  reside  in 
either  of  said  counties." 


3.  Amended  by  Stats.  1891,  p.  277. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1863, 
p.   335. 


§  159.  Residence  and  qualification  of  justices  of  the  peace.  Every  justice 
of  the  peace  shall  reside  in  the  city  and  county,  or  township,  in  which  his 
court  is  held,  and  no  person  shall  be  eligible  to  the  office  of  justice  of  the 
peace  unless  he  shall  have  been  a  citizen  of  the  United  States  and  a  resident 
of  the  city  and  county,  or  countj',  in  which  he  is  to  serve  for  one  year  next 
preceding  his  election  or  appointment. 


Legislation  §  159.  Added  by  Code  Amdts. 
1880,  p.  41. 

The  original  §  159.  enacted  March  11,  1872 
(based  on  Stats.  1863,  p.  335),  read:  "A  resi- 
dence in  an}'  part  of  the  city  and  county  of  San 
Francisco  is,  within  the  meaning  of  the  two  pre- 
ceding sections,  a  residence  in  the  judicial  dis- 
tricts embracing  portions  of  that  city." 

Effect  of  change  of  boundaries  of  town- 
ships. Where  the  boundaries  of  a  township 
are  changed  after  the  election  or  appoint- 
ment of  a  justice  of  the  peace,  so  as  to 


make  him  a  non-resident,  he  is  a  de  facto 
justice  for  that  township,  where  he  con- 
tinues to  act,  and  his  actions  cannot  be 
called  in  question  in  collateral  proceedings. 
People  V.  Sehorn,  116  Cal.  503;  48  Pac. 
495;  People  v.  Eoberts,  6  Cal.  214;  HuU  v. 
Superior  Court,  63  Cal.  174;  People  v. 
Hecht,  105  Cal.  621;  45  Am.  St.  Rep.  96; 
27  L.  R.  A.  203;  38  Pac.  941. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1863, 
p.   335. 

If  bv  rea- 


§  160.    Judges  holding  superior  courts  at  request  of  governor. 

son  of  sickness,  absence,  disability,  or  other  causes,  a  regular  session  of  the 
superior  court  cannot  be  held  in  any  county  by  the  judge  or  judges  thereof, 
or  by  a  superior  judge  requested  b}'  him  or  them  to  hold  such  court,  a  cer- 
tificate of  that  fact  shall  be  transmitted  by  the  clerk  thereof  to  the  governor, 
who  may  thereupon  request  some  other  superior  judge  to  hold  such  court; 
and  a  judge  so  holding  a  court  at  the  request  of  the  governor,  or  at  the  re- 
quest of  the  judge  or  judges  of  said  superior  court,  shall  be  allowed  his 
actual  and  necessary  expenses  in  going  to,  returning  from,  and  attending 
upon  the  business  of  such  court,  which  shall  be  a  charge  against  the  treasury 
of  the  county  where  such  court  is  held,  and  paid  out  of  the  general  fund 
thereof. 

of  a  trial,  even  in  criminal  cases,  with  the 
consent  of  the  defendant.  People  v.  Hen- 
derson, 28  Cal.  465.  This  section  cannot 
be  construed  to  refer  to  the  disqualifica- 
tion of  a  judge  on  account  of  his  interest 
in  the  matter  involved  in  the  proceeding, 
as  mentioned  in  §  170,  post.  .John  Heinlen 
Co.  V.  Superior  Court,  17  Cal.  App.  660; 
121  Pac.  293. 

Presumption  as  to  acts  of  judge  holding 
court  out  of  county.  In  the  absence  of  a 
showing  to  the  contrary,  it  is  presumed 
that  a  judge  holding  court  is  acting  under 
the  proper  authority.  Estate  of  Newman, 
75  Cal.  213;  7  Am.  St.  Rep.  146;  16  Pac. 
887;  Peonle  v.  Ah  Lee  Doon,  97  Cal.  171; 
31  Pac.  933. 

Powers  of  judge  out  of  county.  The 
judge  so  holding  court  may  grant  exten- 
sions of  time  to  make  and  serve  a  state- 
ment on  motion  for  a  new  trial  (Matthews 
V.  Superior  Court,  68  Cal.  638;  10  Pac.  128), 
and  may  send  his  findings  from  another 
court  to  the  «lerk  to  be  filed.  Comstock 
Quicksilver  Mining  Co.  v.  Superior  Court, 
57  Cal.  625. 


Holding  court  for  another  Judge.    Ante,  §  71. 

Legislation  §  160.  i.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  336),  and  then  read: 
■"A  district  judge  may  hold  a  court  in  any  county 
in  this  state,  upon  the  request  of  the  judge  of 
the  district  in  which  such  court  is  to  he  held; 
and  when,  by  reason  of  sickness  or  absence  from 
the  state,  or  from  any  other  cause,  a  court  can- 
not be  held  in  any  county  in  a  district  by  the 
judge  thereof,  a  certificate  of  that  fact  must  be 
transmitted  by  the  clerk  to  the  governor,  who 
may  thereupon  direct  some  other  district  judge 
to  hold  such  court." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  85, 
by  adding,  at  the  end  of  the  section,  "A  district 
judge  may  hear  and  determine  motions  in  actions 
pending  in  any  district,  upon  the  request  of  the 
judge  of  the  district  in  which  the  action  is  pend- 
ing, and  the  stipulation  of  the  parties  to  the 
action.  All  decisions  of  such  motions  shall  be 
filed  and  entered  by  the  clerk  of  the  court  in 
which   such   action  is  pending." 

3.  Amended  by  Code  Amdts.  1880,  p.  41,  to 
read  as  at  present,  e.xcept  that,  (1)  in  first  line, 
a  comma  was  used  after  the  word  "If,"  and  the 
"word  "causes"  was  printed  "cause";  (2)  a  comma 
was  used  between  the  words  "judge  requested," 
and  after  the  word  "court"  in  the  words  "court 
at  the  request";  and  (3)  the  words  "or  at  the 
request  of  the  judge  or  judges  of  said  superior 
court,"  and  the  words  "and  necessary"  before 
the  word   "expenses,"  were  not  used,   as   now. 

4.  Amended  by  Stats.  1887,  p.  147. 

Change  of  judges  during  trial.  The 
judges  may  be  changed  during  the  course 


CODE  COMMISSIONERS' NOTE.  Stats.  1863, 
p.  336.  [See  Cod«  Commissioners'  Note  to  §  161,, 
post.] 


91  JUDGES  INELIGIBLE  TO   OTHER  THAN   JUDICIAL  OFFICE.       §§  161,162 

§161.  Justices  and  judges  inelig^ible  to  other  than  judicial  office.  TIic 
justices  of  the  supreme  court  and  judges  of  the  superior  courts  shall  be  in- 
eligible to  any  other  office  or  public  employment  than  a  judicial  office  or 
employment  during  the  term  for  which  they  shall  have  been  elected. 

Ineligible    to   public    employment.     Const.,    art.  CODE   COMMISSIONERS'  NOTE.    See  People 

Ti,  §  18.  V.  MoUon,  40  Cal.  G48.      '1  he  text  held  to  be  con- 

T  arriciof4<<n  a  1  ai        t      AAA^A    I,,    n  ,1,    A  „,  .J  * .  Btitutional.      Id.     Whsro   the   record  of   the   court 

1880    t,    41  ^  ^"<^«  "°'   «h°^^   f"'-  ^hat  reason   Ihe  judec   of  one 

o     T?  ,,^„„i 'k...    a»„*o     lort-t      ^     101.    „r,.,-^v<■*;  county  holds  court  for  the  judge   of  another,   the 

♦nH^.iV^qi  /n.f  „,.?;    8  =;      '  ^-  •   '*"'=*'"^''"  existence  of  some  one  of  the  causes  mentioned  in 

tutional.    See  note  ante,  §0.  the  statute  will  be  presumed.      Id. 

The    original  §  1()1    provided    for    county    and  ^  couiuc^^. 

probate  judges  holding  court  in  another  county. 

§  162.  [County  or  probate  judge  who  may  hold  term  in  another  county. 
How  designated.     Repealed.] 

Legislation  g  162.    1.  Enacted  March  11,  1873. 
3.   Kepcaledby  Code  Amdts.    1873-74,  p.  285. 


§§  165,  166  POWERS  AND  DUTIES  OF   JUDGES  AT   CHAMBERS. 


92 


CHAPTER  11. 

POWERS  AND  DUTIES  OF  JUDGES  AT  CHAMBERS. 

§  167. 


§  165.     Powers   of   justices    of   supreme   court   at 

chambers. 
§  166.      Powers  of  superior  judges  at  chambers. 


[Related  to  powers  of  probate  judges  at 
chambers.      Repealed.] 


§  165.  Powers  of  justices  of  supreme  court  at  chambers.  The  justices  of 
the  supreme  court,  or  any  of  them,  may,  at  chambers,  grant  all  orders  and 
Avrits  which  are  usually  granted  in  the  first  instance  upon  an  ex  parte  ap- 
plication, except  writs  of  mandamus,  certiorari,  and  prohibition;  and  may, 
in  their  discretion,  hear  applications  to  discharge  such  orders  and  writs. 


Powers  of  judges  out  of  court.     Post,  §  176. 

Legislation  §  165.    1.  Enacted  Ma^-ch  11,  1873. 
2.   Amended  bj-  Code  Amdts.  1880,  p.  41,  and 


(1)  the  words  "or  any"  changed  from  "and 
each,"  and  (2)  the  words  "mandamus,  certi- 
orari,"  changed  from   "review,   mandate." 


§  166.  Powers  of  superior  judges  at  chambers.  The  judge  or  judges  of  a 
superior  court,  or  any  of  them,  may,  at  chambers,  grant  all  orders  and  writs 
Avhich  are  usually  granted  in  the  first  instance  upon  an  ex  parte  application, 
and  may,  at  chambers,  hear  and  dispose  of  such  orders  and  writs ;  and  may 
also,  at  chambers,  appoint  appraisers,  receive  inventories  and  accounts  to  be 
filed,  suspend  the  powers  of  executors,  administrators,  or  guardians  in  the 
cases  allowed  by  law,  grant  special  letters  of  administration  or  guardianship, 
approve  claims  and  bonds,  and  direct  the  issuance  from  the  court  of  all  writs 
and  process  necessary  in  the  exercise  of  their  powers  in  matters  of  probate. 

35  Pac.  341),  extend  time  in  which  to  pre- 


Power  of  judges  out  of  court.      Post,  §  176. 
Chamber  hours  for  judges.      Pol.  Code,  §  4116. 
Power  of  probate  judge  at  chambers.    Post,  §  1035. 

Legislation  §  166.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  336),  and  then  read: 
"District  and  county  judges,  at  chambers,  may 
grant  all  orders  and  writs  which  are  usually 
granted  in  the  first  instance  upon  ex  parte  ap- 
plications, and  may,  at  chambers,  hear  and  dis- 
pose of  such  writs  and  of  motions  for  new  trials." 

3.   Amended  by  Code  Amdts.  18SO,  p.  41. 

Iiocus  of  chambers.  The  judge  may  have 
his  chambers  at  any  place,  within  the  ju- 
risdiction of  the  court,  where  he  may  be 
found.  Estate  of  Lux,  100  Cal.  593;  35 
Pac.  341;  Von  Schmidt  v.  Widber,  99  Cal. 
511;  34  Pac.  109. 

Powers  at  chambers.  Judicial  business 
must  be  transacted  in  court;  the  powers  of 
the  judge  at  chambers  are  limited  to  those 
enumerated  in  this  section.  Carpenter  v. 
Nutter,  127  Cal.  61;  59  Pac.  301.  The  judge 
may,  at  chambers,  grant  all  orders  and 
writs  which  are  usually  granted  in  the  first 
instance  upon  ex  parte  application,  and 
may,  at  chambers,  hear  and  dispose  of 
such  writs.  Real  Estate  Associates  v.  Supe- 
rior Court,  60  Cal.  223;  Kenney  v.  Kelleher, 
63  Cal.  442;  Matthews  v.  Superior  Court, 
68  Cal.  638;  10  Pac.  128;  Vou  Schmidt  v. 
Widber,  99  Cal.  511;  34  Pac.  109;  Estate 
of  Lux,  100  Cal.  593;  35  Pac.  341;  Glass 
V.  Glass,  4  Cal.  App.  604;  88  Pac.  734. 
Thus,  at  chambers,  he  may  dispense  with 
a  bond  on  appeal  by  a  municipal  officer 
(Von  Schmidt  v.  Widber,  99  Cal.  511;  34 
Pae.    109;    Estate    of    Lux,    100    Cal.    593; 


pare  and  serve  a  statement  on  motion  for 
a  new  trial  (Matthews  v.  Superior  Court, 
68  Cal.  638;  10  Pac.  128),  grant  leave  to 
renew  a  motion  (Kenney  v.  Kelleher, 
63  Cal.  442),  make  an  order  to  show  cause, 
by  creditors,  why  an  insolvent  should  not 
be  discharged  (Flint  v.  Wilson,  36  Cal.  24), 
and  appoint  a  receiver  in  insolvency  pro- 
ceedings (Real  Estate  Associates  v.  Supe- 
rior Court,  60  Cal.  223);  but  he  cannot 
grant  a  continuance  at  chambers  (Norwood 
v.  Kenfield,  34  Cal.  329),  nor  discharge  a 
person  accused  of  crime  (Carpenter  v. 
Nutter,  127  Cal.  61;  59  Pac.  301);  neither 
can  he  set  aside  an  execution,  nor  stay  per- 
petually its  enforcement,  on  the  ground 
that  the  judgment  was  erroneous  (Bond  v. 
Pacheco, 'so  Cal.  530);  but  he  may  make 
an  order  suspending  its  operation,  pending 
a  hearing  to  quash  or  recall.  Logan  v. 
Hillegass,  16  Cal.  200;  Chipman  v.  Bow- 
man, 14  Cal.  157;  Bell  v.  Thompson,  19  Cal. 
706;  Sanchez  v.  Carriaga,  31  Cal.  170.  He 
cannot,  at  chambers,  hear  a  motion  to 
strike  out  pleadings  (Bond  v.  Pacheco,  30 
Cal.  530),  nor  enter  an  order  nunc  pro 
tunc,  as  having  been  made  and  entered  by 
the  court.  Hegeler  v.  Henckell,  27  Cal.  491. 
An  appeal  lies  from  an  order  at  chambers, 
regarding  writs  authorized  to  be  granted 
or  denied  out  of  court,  as  such  orders  are 
judgments.  Bond  v.  Pacheco,  30  Cal.  530; 
Brewster  v.  Hartley,  37  Cal.  15;  99  Am. 
Bee.  237;  Clark  v.  Crane,  57  Cal.  629. 


92a 


PO^VERS  AND  DUTIES  OF  JUDGES  AT  CHAMBERS. 


§167 


CODE  COMMISSIONERS'  NOTE.      1.  Granting 

continuances.  It  was  luld  that  a  county  judge 
at  chambers  cannot  grant  a  continuance  of  n  cause 
■which  was  pending  and  set  down  for  trial  at  a 
future  day  in  the  county  court.  Norwood  v.  Kon- 
field,  34  Cal.  3'J9. 

2.  Certiorari  issued  at  chambers.  The  district 
judge  may  issue  writs  of  certiorari,  and  hear 
them  on  their  return,  at  cliambers.  People  v. 
Supervisors  of  Marin  County,  10  Cal.  344. 

3.  Certain  orders  nunc  pro  tunc  cannot  be  made. 
A  judge  at  chambers  cannot  make  an  order  di- 
recting the  clerk  to  enter  in  the  minutes  of  the 
court  nunc  pro  tunc  an  order  alleged  to  have  been 
made  in  open  court.  After  the  adjournment  of 
a  term  the  court  cannot  direct  the  eiitry  nunc  pro 
tunc  of  an  order  made  during  the  adjourned  term 
where  the  records  do  not  show  that  such  an  or- 
der \v:is  made.    Hegeler  v.    tleiickell,  'J7  Cal.    191. 

4.  Hearing  motion  to  strike  out  pleadings.  The 
general  rule  as  to  powers  of  judges  at  chambers 
is,  that  all  judicial  business  must  be  transacted 
in  term,  whether  there  is  any  express  direction 
to  that  effect  or  not.  Such  business  as  may  be 
transacted  out  of  court  is  exceptional,  and  must 
find  its  warrant  in  some  express  provision  of  the 
statute.  Larco  v.  Casaneuava,  30  Cal.  504.  A 
district'  judge  at  chambers  has  not  jurisdiction  to 
hear  motions  to  strike  out  pleadings.  Bond  v. 
Pacheco,  30  Cal.  r-,3'2. 

5.  Order  setting  aside  execution,  etc.  A  judge 
at  chambers  has  no  jurisdiction  to  make  an  order 
setting  aside  an  execution  and  perpetually  stay- 
ing its  enforcement.     Bond  v.  Pacheco.  30  Cal.  .532. 

6.  What  orders  in  insolvency  proceedings  can 
be  made  by  county  judges.  Certain  orders  in  in- 
solvency proceedings  (under  state  act)  can  be 
made  bv  county  judge  at  chambers.  Flint  v.  Wil- 
son. 36  Cal.  24. 

7.  Writs  of  mandate,  review,  quo  warranto,  etc. 
The  legislature  is  not  prohibited  by  the  constitu- 
tion from  conferring  upon  the  judge  authority  to 
hear  and  determine  actions  and  proceedings  at 
chambers.  Such  authority  is  granted  in  respect 
to  writs  of  mandate,  review,  and  quo  warrant'*, 
and  special  proceedings,  to  determine  the  valid- 
ity of  a  corporation  election.  A  decision  in  these 
cases  is  a  judgment,  and  an  appeal  therefrom  is 


given  by  §  963,  post.    Brewster  v.  Hartley,  37  Cal 
15;  99  Am.  Dec.  237. 

8.  Arrest  of  process  Issued  In  void  judgment. 
Where  a  judgment  upon  which  the  execution  is 
based,  and  the  execution  itself,  are  void  upon  their 
face,  a  court  has  entire  control  over  the  process, 
and  may  arrest  it.  A  juage  at  chambers  has  au- 
thority to  order  a  suspension  of  the  execution  till 
a  motion  before  the  court  to  recall  or  quash  it 
can  be  heard.  Logan  v.  Hillegass,  16  Cal.  201; 
see  also  Chipman  v.  Bowman,  14  Cal.  158;  Bell 
v.  Thompson,  19  Cal.  TOti ;  Sanchez  v.  Carriaga, 
81  Cal.  172. 

9.  Judge  at  chambers  cannot  decide  certain 
controversies.  ".Action  for  damages  for  trespass 
alleged  to  have  been  committed  by  defendants 
upon  certain  quartz-mining  claims;  and  also  for 
a  perpetual  injunction  against  future  trespasses, 
which  was  granted.  Defendants  deny  all  the  alle- 
gations of  the  complaint,  and  set  up  ownership  of 
certain  mining-ground.  -Verdict  generally  'for  de- 
fendants,' and  judgment  in  their  favor  for  costs. 
Defendants  move  to  amend  the  judgment  by  dis- 
solving the  injunction.  Motion  denied,  but  the 
judgment  modified  so  as  to  permit  defendants  to 
work  the  ground  set  up  in  their  answer.  After 
the  term  had  expired,  defendants  appeal  from  this 
order  refusing  to  dissolve  the  injunction,  and  sub- 
sequently, upon  defendants  giving  bond,  the  judge, 
in  chambers,  made  an  ex  parte  order  directing 
plaintiffs  to  yield  possession  of  the  ground  de- 
scribed in  the  answer  to  defendants,  which  order 
plaintiffs  refused  to  obey;  and  then  followed  an 
order  to  show  cause  why  they  should  not  be  pun- 
ished for  contempt.  Held;  that  the  court  had  no 
power  to  make  the  ex  parte  order  for  the  restitu- 
tion of  possession  or  the  induction  of  defendants 
into  possession  of  the  premises,  as  this  was  in 
effect,  to  decide  the  whole  controversy  in  limine, 
and  to  execute  the  judgment  by  an  ex  parte  or- 
der; that  the  possession  by  plaintiffs  of  the  prem- 
ises was  property,  and  could  not  be  disposed  of 
except  in  due  course  of  law;  and  that  all  the  sub- 
sequent orders,  for  contempt,  etc.,  being  depend- 
ent on  this,  fall  with  it."  Syllabus  in  Brennan 
V.  Gaston,  17  Cal.  375. 

10.  Making  order  for  discharge  of  guardian, 
etc.      See  note  to  next  section. 


§  167.     [Related  to  powers  of  probate  judges  at  chambers.     Repealed.] 


Legislation  §  167.    1.  Enacted  March  11,  1873. 
2.  Repealed  by  Code  Amdts.  1880,  p.  21,  ii 


amending  Fart  I. 


§  170  DISQUALIFICATIONS   OP    JUDGES.  92b 

CHAPTER  III. 

DISQUALIFICATIONS  OF  JUDGES. 

i  170.    Disqualification    of   judicial    officer   to    Bit  §  172.    No  judicial  officer  to   have  partner  prao- 

or  act.  ticing  law. 

5  171.    Judfcf-s     and     county    clerks,    when    pro-  §  173.     [Renumbered  and  amended  section.] 

hibited  from  practicing  law. 

§  170.  Disqualification  of  judicial  officer  to  sit  or  act.  No  justice,  judge, 
or  justice  of  the  peace  shall  sit  or  act  as  such  in  any  action  or  proceeding : 

1.  To  which  he  is  a  party  or  in  which  he  is  interested ; 

2.  When  he  is  related  to  either  party,  or  to  an  officer  of  a  corporation 
which  is  a  party,  or  to  an  attorney,  counsel,  or  agent  of  either  party,  by 
consanguinity  or  affinity,  within  the  third  degree,  computed  according  to 
the  rules  of  law ;  provided,  however,  that  if  the  parties  to  the  action,  or  the 
executor,  or  administrator  of  the  estate,  or  the  guardian  of  the  minor  or  in- 
competent person,  or  the  receiver,  or  the  commissioner,  or  the  referee,  or 
the  attorney  for  a  party  in  all  special  proceedings  of  a  civil  or  criminal 
nature,  shall  sign  and  file  in  the  action  or  matter,  a  stipulation  in  writing 
waiving  the  disqualification  herein,  the  judge  or  court  may  proceed  with 
the  trial  or  hearing  with  the  same  legal  effect  as  if  no  such  disqualification 
existed. 

3.  When  in  the  action  or  proceeding,  or  in  any  previous  action  or  proceed- 
ing involving  any  of  the  same  issues,  he  has  been  attorney  or  counsel  for 
either  party ;  or  when  he  has  given  advice  to  either  party  upon  any  matter 
involved  in  the  action  or  proceeding ; 

4.  When  it  appears  from  the  affidavit  or  affidavits  on  file  that  either  party 
cannot  have  a  fair  and  impartial  trial  before  any  judge  of  a  court  of  record 
about  to  try  the  case  by  reason  of  the  prejudice  or  bias  of  such  judge,  said 
judge  shall  forthwith  secure  the  services  of  some  other  judge,  of  the  same 
or  another  county,  to  preside  at  the  trial  of  said  action  or  proceeding ;  pro- 
vided, that  in  an  action  in  the  superior  court  of  a  county,  or  of  a  city  and 
county,  having  more  than  one  department,  said  action  shall  be  transferred  to 
another  department  thereof,  and  tried  therein  in  the  same  manner  as  though 
originally  assigned  to  such  department.  The  affidavit  or  affidavits  alleging 
the  disqualification  of  a  judge,  must  be  filed  and  served  upon  the  adverse 
party  or  the  attorney  for  such  party  at  least  one  day  before  the  day  set  for 
trial  of  such  action  or  proceeding;  provided,  counter-affidavits  may  be  filed 
at  least  one  day  thereafter,  or  such  further  time  as  the  court  may  extend 
the  time  for  filing  such  counter-affidavits,  not  exceeding  five  days,  and  for 
this  purpose  the  court  may  continue  the  trial ;  and  in  no  one  cause  or  pro- 
ceeding can  more  than  one  such  change  of  judges  be  had.  But  the  provis- 
ions of  this  section  shall  not  apply  to  the  arrangement  of  the  calendar,  or 
to  the  regulation  of  the  order  of  business,  nor  the  power  of  transferring  the 
action  or  proceeding  to  some  other  court,  or  the  hearing  upon  such  affidavits 
and  counter-affidavits ; 

5.  In  an  action  or  proceeding  brought  in  the  superior  court  or  justices' 
court  by  or  against  the  reclamation  board  of  the  state  of  California,  or 
any  reclamation,  levee,  swamp-land  or  drainage  district,  or  any  public 


93 


DISQUALIFICATION    OF   JUDICIAL    OFFICER    TO    SIT   OR   ACT. 


§170 


agency,  or  trustee,  officer  or  employee  thereof,  affecting  or  relating  to  any 
real  property  or  any  easement  or  right  of  way,  levee,  embankment,  canal, 
or  any  Avork  provided  for  or  approved  by  the  reclamation  board  of  the 
state  of  California,  the  judge  of  the  superior  court  of  the  county,  or  justice 
of  the  peace  of  the  tOAvnship  in  which  such  real  property,  or  any  part 
thereof,  or  such  easement  or  right  of  way,  levee,  embankment,  canal  or 
work,  or  any  part  thereof,  is  situated,  shall  be  disqualified  to  sit  or  act,  and 
such  action,  if  brought  in  the  superior  court,  shall  be  heard  and  tried  by 
some  other  judge  of  the  superior  court  requested  to  sit  therein  by  the 
governor,  or  if  brought  in  the  justices'  court,  by  some  other  justice  of 
the  peace  requested  to  sit  therein  by  the  governor ;  unless  the  parties  to 
the  action  shall  sign  and  file  in  the  action  or  proceeding  a  stipulation  in 
writing,  waiving  the  disqualification  in  this  subdivision  of  this  section  pro- 
vided, in  which  case  such  judge  or  justice  of  the  peace  may  proceed  with  the 
trial  or  hearing  with  the  same  legal  effect  as  if  no  such  legal  disqualification 
existed.  If,  however,  the  parties  to  the  action  shall  sign  and  file  a  stipula- 
tion agreeing  upon  some  other  judge  of  the  superior  court  or  justice  of  the 
peace  to  sit  or  act  in  place  of  the  judge  or  justice  disqualified  under  the 
provisions  of  this  subdivision,  the  judge  or  justice  agreed  upon  shall  be 
designated  by  the  governor  to  sit  in  the  action;  provided,  that  nothing 
herein  contained  shall  be  construed  as  preventing  the  judge  of  the  superior 
court  of  such  county  from  issuing  a  temporary  injunction  or  restraining 
order,  which  shall,  if  granted,  remain  in  force  until  vacated  or  modified 
by  the  judge  designated  by  the  governor  as  herein  provided. 

Nothing  in  this  section  contained  shall  affect  a  party's  right  to  a  change 
of  the  place  of  trial  in  the  cases  provided  for  in  title  four,  part  two  of  this 
code. 


Change  of  ventie.      Post,  §  §  397  et  seq. 

Subd.  2.  Consanguinity  and  aflnity.  See  Civ. 
Code,  §§  1390  et  seq. 

Subd.  3.  Judge  cannot  act  as  attorney.  Post, 
§§  171,  172. 

Legislation  §  170.  1.  Enacted  March  11,  1S73 
(based  on  Stats.  1863,  p.  343),  and  then  read: 
"A  judge  cannot  act  as  such  in  any  of  the  fol- 
lowing cases:  1.  In  an  action  or  proceeding  to 
which  he  is  a  party,  or  in  which  he  is-  interested; 
2.  When  he  is  related  to  either  party  by  con- 
sanguinity or  affinity  within  the  third  degree, 
computed  according  to  the  niles  of  law;  3.  When 
he  has  been  attorney  or  counsel  for  either  party 
in  the  action  or  proceeding;  — But  this  section 
does  not  apply  to  the  arrangement  of  the  calen- 
dar or  the  regulation  of  the  order  of  business, 
nor  to  the  power  of  transfemng  the  cause  to 
another  county." 

3.  Amended  by  Code  Amdts.  18S0,  p.  42,  and 
then  read:  "§  170.  No  justice,  judge,  or  justice 
of  the  peace,  shall  sit  or  act  as  such  in  any  ac- 
tion or  proceeding:  1.  To  which  he  is  a  party,  or 
in  which  he  is  interested;  2.  When  he  is  related 
to  either  party  by  consanguinity  or  affinity  within 
the  third  degree,  computed  according  to  the  rules 
of  law;  3.  When  he  has  been  attorney  or  counsel 
for  either  party  in  the  action  or  proceeding.  But 
the  provisions  of  this  section  shall  not  apply  to 
the  arrangement  of  the  calendar  or  the  regulation 
of   the    order   of   business,    nor   to   the   power   of 


transferring    the    action    or    proceeding   to    some 
other  court." 

3.  Amended  by  Stats.  1893,  p.  234,  and  then 
read:  "§  170.  No  justice,  judge,  or  justice  of 
the  peace  shall  sit  or  act  as  such  in  any  action 
or  proceeding — -1.  To  which  he  is  a  party  or  in 
which  he  is  interested.  2.  When  he  is  related  to 
either  party,  or  to  an  attorney,  counsel,  or  agent 
of  either  party,  by  consanguinity  or  affinity  within 
the  third  degree,  computed  according  to  the  rules 
of  law.  3.  When  he  has  been  attorney  or  coun- 
sel for  either  party  in  the  action  or  proceeding. 
But  the  provisions  of  this  section  shall  not  apply 
to  the  arrangement  of  the  calendar,  or  the  regu- 
lation of  the  order  of  business,  nor  the  power  of 
transferring  the  action  or  proceeding  to  gome 
other  court." 

4.  Amended  by  Stats.  1897,  p.  287,  and  then 
read:  "§  170.  No  justice,  judge,  or  justice  of 
the  peace  shall  sit  or  act  as  such  in  any  action 
or  proceeding:  1.  To  which  he  is  a  party  or  in 
which  he  is  interested.  2.  When  he  is  related  to 
either  party,  or  to  an  attorney,  counsel,  or  agent 
of  either  party,  by  consanguinity  or  affinity,  within 
the  third  degree,  computed  according  to  the  rules 
of  law.  3.  When  he  has  been  attorney  or  coun- 
sel for  either  party  in  the  action  or  proceeding. 
4.  When  it  appears  from  the  affidavit  or  affidavits 
on  file  that  either  party  cannot  have  a  fair  and 
impartial  trial  before  any  judge  of  a  court  of 
record  about  to  try  the  case  by  reason  of  the 
prejudice  or  bias  of  such  judge,  said  judge  shall 
forthwith  secure  the  services  of  some  other  judge, 


§170 


DISQUALIFICATIONS   OF   JUDGES. 


94: 


of  the  same  or  another  county,  to  preside  at  the 
trial  of  said  action  or  proceeding;  provided,  that 
in  an  action  in  the  superior  court  of  a  county, 
or  of  a  city  and  county,  having  more  than  one 
department,  said  action  shall  be  transferred  to 
another  department  thereof,  and  tried  therein  in 
the  same  manner  as  though  originally  assigned 
to  such  department.  The  affidavit  or  affidavits 
alleging  the  disqualification  of  a  judge,  must  be 
filed  and  served  upon  the  adverse  party,  or  the 
attorney  for  such  party,  at  least  one  day  before 
the  day  set  for  trial  of  such  action  or  proceed- 
ing; provided,  counter-affidavits  may  be  filed  at 
least  one  day  thereafter  or  such  further  time  as 
the  court  may  extend  the  time  for  filing  such 
counter-affidavits,  not  exceeding  five  days,  and 
for  this  purpose  the  court  may  continue  the  trial; 
and  in  no  one  cause  or  proceeding  can  more  than 
one  such  change  of  judges  be  had.  But  the  pro- 
visions of  this  section  shall  not  apply  to  the 
arrangement  of  the  calendar,  or  to  the  regulation 
of  the  order  of  business,  nor  the  power  of  trans- 
ferring the  action  or  proceeding  to  some  other 
court,  or  the  hearing  upon  such  affidavits  and 
counter- affidavits." 

5.  Amendment  by  Stats.  1901,  p.  121;  un- 
constitutional.     See  note  ante,  §  5. 

6.  Amended  by  Stats.  1905,  p.  467;  differ- 
ing from  the  text  of  the  amendment  of  1915, 
only  in  not  having  subd.  5  and  the  saving  clause. 

7.  Amended  by  Stats.  1915,  p.  530,  adding 
subd.   5   and   tlie   saving  clause. 

Where  the  judge  is  a  party.  A  judge, 
made  a  party  defendant  to  proceedings  for 
the  partition  of  real  estate,  with  the  alle- 
gation that  he  has  or  claims  an  interest 
therein,  is  disqualified  to  try  the  cause, 
and  has  no  jurisdiction  arbitrarily  to  de- 
termine that  he  has  no  interest,  and  by  an 
ex  parte  order,  made  of  his  own  motion, 
direct  that  the  complaint  be  stricken  from 
the  files.  Younger  v.  Superior  Court,  136 
Cal.  682;  69  Pac.  485;  McClatchy  v.  Supe- 
rior Court,  119  Cal.  413;  39  L.  k  A.  691; 
51  Pac.  696;  Foley  v.  Foley,  120  Cal.  33; 
65  Am.  St.  Piep.  147;  52  Pac.  122. 

Where  judge  is  interested.  A  judge  can- 
not act  in  a  cause  or  proceeding  in  which 
he  is  interested,  directly  or  indirectly 
(Tracy  v.  Colby,  55  Cal.  67;  North  Bloom- 
field  Gravel  Mining  Co.  v.  Keyser,  5S  Cal. 
315;  Blue  Tent  Co.  v.  Kevser,  58  Cal.  329; 
Howell  V.  Budd,  91  Cal.  342;  27  Pac.  747; 
Oakland  v.  Oakland  Water  Front  Co.,  118 
Cal.  249;  50  Pac.  268);  but  his  interest 
must  be  made  clearly  to  appear,  in  order 
to  disqualify.  Heinlen  v.  Heilbron,  97  Cal. 
101;  31  Pac.  838;  Meyer  v.  San  Diego,  121 
Cal.  102;  66  Am.  St.  Rep.  22;  41  L.  E.  A. 
762;  53  Pac.  434.  The  term  "interested," 
however,  embraces  only  a  direct,  proxi- 
mate, substantial,  and  certain  interest  in 
the  result  of  the  action,  and  does  not  in- 
clude a  remote,  indirect,  contincent,  uncer- 
tain, and  shadowy  interest.  Oakland  v. 
Oakland  Water  Front  Co.,  118  Cal.  249;  50 
Pac.  268;  Scaddcn  Flat  Gold  Mining  Co. 
V.  Scadden,  121  Cal.  33;  53  Pac.  440;  Hig- 
gins  V.  San  Diego,  126  Cal.  303;  58  Pac. 
700;  59  Pac.  209.  The  interest  that  dis- 
qualifies a  judge  is  a  property  or  personal 
interest,  an  interest  in  the  event  of  the 
suit,  in  the  judgment  that  may  be  rendered 
therein:  a  mere  sentimental  interest,  or  an 
IntercBt  in  the  facts  that  the  issues  make 


it  necessary  for  a  judge  to  determine  and 
that  may  tend  to  induce  him  to  give  more 
weight  to  the  evidence  for  one  party  than 
to  that  for  the  other,  respecting  such  facts, 
is  not  the  interest  that  will  disqualify. 
Lassen  Irrigation  Co.  v.  Superior  Court, 
151  Cal.  357;  90  Pac.  709.  A  judge  is  inter- 
ested in  an  action  to  establish  the  validity 
cf  bonds,  where  a  bank,  of  which  he  is  a 
stockholder,  is  the  owner  thereof.  Adams 
V.  Minor,  121  Cal.  372;  53  Pac;  815.  W^here 
the  judge  has  disposed  of  all  his  interest 
in  the  subject-matter  of  the  action,  he  is 
not  disqualified  (Gregg  v.  Pemberton,  53 
Cal.  251;  Scadden  Flat  Gold  Mining  Co.  v. 
Scadden,  121  Cal.  33;  53  Pac.  440);  but  his 
disqualification  is  not  removed  by  a  dis- 
posal of  his  stock  after  he  has  heard  the 
evidence,  and  before  the  rendition  of  judg- 
ment. Adams  v.  Minor,  121  Cal.  372;  53 
Pac.  815.  The  interest  of  the  judge  as  a 
taxpayer  does  not  disqualify  him,  in  a  suit 
to  collect  money  demands  against  the 
county  (Higgins  v.  San  Diego,  126  Cal. 
303;  58  Pac.  700;  59  Pac.  209),  nor  where 
the  action  may  result  in  the  diminution  of 
taxes  (Oakland  v.  Oakland  Water  Front 
Co.,  118  Cal.  249;  50  Pac.  268);  nor  is  he 
disqualified  by  reason  of  his  having  pend- 
ing an  independent  action  against  one  of 
the  parties  in  a  case  to  be  tried  by  him, 
in  no  way  connected  with  the  matter  on 
trial  (Southern  California  Motor  Eoad  Co. 
V.  San  Bernardino  Nat.  Bank,  100  Cal.  316; 
34  Pac.  711) ;  but  where  he  claims  an  inter- 
est in  the  land  in  controversy,  adversely 
to  both  parties  litigant,  he  is  disqualified, 
in  an  action  to  determine  the  title  to  such 
land  (Heilhorn  v.  Campbell,  3  Cal.  Unrep. 
204;  23  Pac.  122);  and  he  is  also  disquali- 
fied where  he  is  interested  in  an  estate  in 
probate  (Estate  of  White,  37  Cal.  190),  but 
not  where  he  is  a  mere  creditor.  Regents 
of  University  v.  Turner,  159  Cal."  541;  Ann. 
Cas.  19120.  1162;  114  Pac.  842. 

Power  of  judge  disctualified  by  interest. 
A  judge,  disqualified  by  reason  of  inter- 
est, may  make  an  order  respecting  a  change 
of  name,  fix  the  time  of  hearing  the  appli- 
cation, and  direct  the  giving  of  the  re- 
quired notice;  such  action  relates  solely 
to  the  arrangement  of  the  calendar,  and 
regulation  of  the  order  of  business.  Peti- 
tion of  Los  Angeles  Trust  Co.,  158  Cal.  603; 
112  Pac.  56.  There  is  a  marked  distinction 
between  the  disqualification  of  the  judge 
under  this  section,  and  accidental  disquali- 
fication under  §  160,  ante:  under  §  160,  the 
judge  may  transfer  a  case  to  a  judge  of  his 
own  selection,  but  he  cannot  so  transfer  a 
case  in  which  he  is  interested,  and  whera 
disqualified  by  reason  of  interest,  it  is  his 
legal  duty  to  transfer  the  proceeding.  John 
Heinlen  Co.  v.  Superior  Court,  17  Cal.  App. 
660;  121  Pac.  293. 

Grounds  of  disqualification.   The  grounds 
of    disqualification    of    a    judge    are    only 
those  enumerated   in  this   section    (Patter-  , 
son  V.  Coulon,  123  Cal.  453;   56  Pac,  105;  " 


95 


DISQUALIFICATION   OF  JUDICIAL  OFFICER  TO  SIT  OR  ACT. 


§170 


McCauley  v.  Weller,  12  Cal.  500) ;  but  the 
section  should  be  given  a  broad  and  lib- 
eral, not  a  technical,  construction.  North 
Bloomfield  Gravel  Mining  Co.  v.  Keyser, 
58  Cal.  315.  A  judge  is  not  disqualified, 
under  this  section,  for  counseling  or  ad- 
vising with  persons  who  are  not  parties  to 
the  action  (Lassen  Irrigation  Co.  v.  Supe- 
rior Court,  151  Cal.  357;  90  Pac.  709);  nor 
from  trying  au  action  to  foreclose  a  mort- 
gage against  an  estate,  though  he,  as  an 
attorney,  before  he  became  judge,  signed 
a  petition  for  letters  of  administration  in 
the  matter  of  such  estate;  nor  is  the 
decree  foreclosing  the  mortgage  invalid 
because  the  judge,  presiding  at  the  fore- 
closure suit,  drafted  the  mortgage  while 
practicing  as  an  attorney.  Morrissey  v. 
Gray,  160  Cal.  390;  117  Pac.  438.  Though 
the  judge,  as  prosecuting  attorney,  had, 
sixteen  years  previously,  prosecuted  and 
convicted  a  defendant,  yet  there  is  no  in- 
ference that  he  cannot  try  the  case  with 
perfect  impartiality.  Hoyt  v.  Zumwalt, 
149  Cal.  381;  86  Pac.  602.  The  burden  is 
upon  the  party  seeking  to  show  disqualifi- 
cation; the  question  involved  is  judicial, 
to  be  determined  by  the  tribunal  before 
which  it  is  presented.  Dakan  v.  Superior 
Court,  2  Cal.  App.  52;  82  Pac.  1129. 

Eelationship  to  a  party.  Relationship 
by  consanguinity  or  affinity  within  the 
third  degree,  to  either  party  to  an  action, 
disqualifies  the  judge  from  acting  therein, 
and  he  ought,  of  his  own  motion,  to  de- 
cline to  sit  as  a  judge,  even  when  no 
objections  are  made.  People  v.  De  la 
Guerra,  24  Cal.  73;  De  la  Guerra  v.  Bur- 
ton, 23  Cal.  592.  The  word  "party"  is  not 
confined  to  persons  who  are  parties  of  rec- 
ord, but  includes  all  persons  whose  interest 
is  represented  by  such  parties.  Howell  v. 
Budd,  91  Cal.  342;  27  Pac.  747;  North 
Bloomfield  Gravel  Mining  Co.  v.  Keyser, 
58  Cal.  315;  Fredericks  v.  Judah,  73"^ Cal. 
604;  15  Pac.  305.  The  rule  for  computing 
the  degree  of  relationship  is  the  rule  of  the 
civil  law  (People  v.  De  la  Guerra,  24  Cal. 
73),  and  a  first-cousin  by  marriage,  or  a 
cousin  gernian,  is  not  within  the  prohibited 
degree.  Robinson  v.  Southern  Pacific  Co., 
105  Cal.  526;  28  L.  R.  A.  773;  38  Pac.  94, 
722;  but  see  contra,  People  v.  De  la  Guerra, 
24  Cal.  73.  In  insolvency  proceedings,  the 
term  "parties"  includes  the  insolvent  and 
persons  who  have  filed  claims.  Chinette  v. 
Conklin,  105  Cal.  465;  38  Pac.  1107;  In  re 
Chope,  112  Cal.  630;  44  Pac.  1066. 

Relationship  to  attorney.  It  is  not  essen- 
tial to  the  disqualification  of  the  judge, 
that  an  attorney,  who  was  a  relative  of  the 
judge,  should  be  of  record;  it  is  sufficient 
if  he  is  in  fact  an  attorney  for  the  party. 
Johnson  v.  Brown,  115  Cal.  694;  47  Pac. 
686.  Where  the  judge  is  the  father  of  the 
attorney  who  is  about  to  try  the  cause, 
upon  a  contingent  fee,  depending  upon  the 
success  of  the  action,  the  judge  is  disquali- 
fied by  reason  of  relationship  to  a  party. 


Howell  V.  Budd,  91  Cal.  342;  27  Pac.  747. 
Of  course,  under  the  existing  law,  he  would 
be  disqualified  also  by  reason  of  his  rela- 
tionship to  the  attorney,  as  such;  the  law 
was  amended  at  the  session  of  the  legis- 
lature immediately  after  the  decision  of 
Howell  V.  Budd,  supra.  An  order  extend- 
ing time,  made  by  a  judge  v>'ho  was  dis- 
qualified from  acting,  under  this  section, 
prior  to  its  amendment  in  1905,  was  void. 
Johnson  v.  German -American  Ins.  Co.,  150 
CaL336;  88  Pac.  985. 

judge  formerly  counsel  in  the  proceed- 
ing. The  judge,  having  been  an  attorney 
or  counsel  in  the  proceeding,  is  disquali- 
fied (Barnhart  v,  Fulkerth,  59  Cal.  130; 
Finn  v.  Spagnoli,  67  Cal.  330;  7  Pac.  740), 
and  he  is  also  disqualified  where  he  re- 
ceived a  general  retainer  from  one  of  the 
parties  (Kern  Valley  Water  Co.  v.  McCord, 
70  Cal.  646;  11  Pac.  798);  but  he  is  not 
disqualified  where  he  had  previously  been 
the  attorney  in  another  action  for  one  of 
the  parties,  although  such  action  involved 
one  of  the  issues  in  the  case  on  trial.  Cleg- 
horn  v.  Cleghorn,  66  Cal.  309;  5  Pac.  516. 

Bias  and  prejudice.  The  bias  and  preju- 
dice of  the  judge  was  not  a  ground  for 
disqualification  before  the  amendment  of 
this  section  in  1897,  when  the  fourth  sub- 
division was  added  (People  v.  Mahoney, 
18  Cal.  180;  People  v.  Graham,  21  Cal.  261; 
People  V.  Williams,  24  Cal.  31;  People  v. 
Shuler,  28  Cal.  490;  Hibberd  v.  Smith,  39 
Cal.  145;  Bulwer  Cons.  Mining  Co.  v. 
Standard  Cons.  Mining  Co.,  83  Cal.  613;  23 
Pac.  1109;  Patterson  v.  Conlon,  123  Cal. 
453;  56  Pac.  105);  and  even  the  expression 
of  an  unqualified  opinion  did  not  then  dis- 
qiialify  a  magistrate  from  holding  a  pre- 
liminary examination  (McCauley  v.  Weller, 
12  Cal.  500),  as  the  law  established  a 
different  rule  for  determining  the  disquali- 
fication of  judges  from  that  applied  to 
jurors.  McCauley  v.  Weller,  12  Cal.  500; 
People  V.  Mahoney,  18  Cal.  180.  The  filing 
of  an  affidavit  showing  bias  and  prejudice 
was  then  a  contempt  of  court  (In  re  .Tones, 
103  Cal.  397;  37  Pac.  385);  but,  since  the 
amendment  of  1897,  facts  showing  bias 
and  prejudice,  being  pertinent  and  rele- 
vant, do  not  constitute  contempt.  Works 
V.  Superior  Court,  130  Cal.  304;  62  Pac. 
507.  If  the  affidavit,  however,  fails  to 
state  any  facts,  and  makes  charges  of  cor- 
ruption against  the  judge,  upon  belief 
merely,  it  is  contempt  of  court  (Lamber- 
son  V.  Superior  Court,  151  Cal.  458;  11  L. 
R.  A.  (N.  S.)  619;  91  Pac.  100),  and  the 
judge  is  not  disqualified  from  hearing  said 
contempt  proceedings  by  reason  of  the 
fact  that  his  integrity  has  been  so  at- 
tacked.   Id. 

Affidavits  of  bias  and  prejudice.  The 
right  to  make  and  file  affidavits  is  not  re- 
stricted to  any  particular  party.  Parrish 
V.  Riverside  Trust  Co.,  7  Cal.  App.  95;  93 
Pac.  685.  Upon  a  motion  to  call  in  an- 
other judge,  the  judge  whose  bias  is  alleged 


170 


DISQUALIFICATIONS   OP   JUDGES. 


96 


must  himself  decide  the  motion,  but  he 
must  decide  it  upon  the  facts  averred  in 
the  affidavits,  without  reference  to  his  own 
knowledge  of  his  own  state  of  mind.  Hoyt 
V.  Zumwalt,  149  Cal.  381;  86  Pac.  600; 
Swan  V.  Talbot,  152  Cal.  142;  17  L.  E.  A. 
(N.  S.)  1066;  94  Pac.  238.  Under  the  law 
prior  to  the  addition  of  the  fourth  sub- 
division, the  judge  might  act  upon  his  own 
knowledge  as  to  his  condition  of  mind 
(Southern  California  Motor  Road  Co.  v. 
San  Bernardino  Nat.  Bank,  100  Cal.  316; 
34  Pac.  711);  but,  under  the  present  sec- 
tion, the  knowledge  or  belief  of  the  judge 
as  to  his  qualification  cannot  affect  the 
fact  of  his  disqualification.  Adams  v. 
Minor,  121  Cal.  372;  53  Pac.  815.  Unveri- 
fied statements  of  the  judge  cannot  be 
considered  in  determining  the  question. 
Morehouse  v.  Morehouse,  136  Cal.  332;  68 
Pac.  976;  People  v.  Compton,  123  Cal.  403; 
56  Pac.  44.  Even  if  the  judge  knows  him- 
self to  be  disqualified  in  fact,  he  cannot 
deny  the  motion,  if  the  contrary  appears 
from  the  affidavit  on  file.  People  v.  Comp- 
ton, 123  Cal.  403;  56  Pac.  44.  The  dis- 
qualification of  the  judge  is  to  be  deter- 
mined wholly  from  the  affidavits  and 
counter-affidavits  on  file,  and  if  there  is  no 
conflict  upon  the  affidavits  showing  bias 
and  prejudice,  the  court  must  grant  a 
change  of  venue  (People  v.  Compton,  123 
Cal.  403;  56  Pac.  44;  Bassford  v.  Earl,  162 
Cal.  115;  121  Pac.  395;  People  v.  Comp- 
ton, 123  Cal.  403;  56.  Pac.  44),  but  in 
case  of  conflict  the  court  may  pass  upon 
the  question  of  bias  and  prejudice  (Peo- 
ple v.  Eodley,  131  Cal.  240;  63  Pac.  351), 
and  determine  his  own  qualification.  Tal- 
bot V.  Pirkey,  139  Cal.  326;  73  Pac.  858. 
A  judge  must  not  shirk  the  painful  duty 
imposed  upon  him,  of  being  the  trier  of 
the  question  touching  his  own  bias  or 
other  disqualification.  Swan  v.  Talbot,  152 
Cal.  142;  17  L.  R.  A.  (N.  S.)  1066;  94  Pac. 
238.  It  is  the  duty  of  a  judge,  alleged  to 
be  biased,  to  grant  a  motion  to  call  in  an- 
other judge,  should  bias  or  other  disquali- 
fication be  shown;  but  it  is  equally  his 
duty  to  deny  the  motion,  and  to  sit  in  the 
case  himself,  if,  in  his  judgment,  the  dis- 
qualifying cause  alleged  is  not  sufficiently 
established  by  the  evidence.  Swan  v.  Tal- 
bot, 152  Cal.  142;  17  L.  R.  A.  (N.  S.)  1066; 
94  Pac.  238;  Morehouse  v.  Morehouse,  136 
Cal.  332;  68  Pac.  976;  People  v.  Compton, 
123  Cal.  403;  56  Pac.  44;  Hoyt  v.  Zum- 
walt, 149  Cal.  381;  86  Pac.  600.  The  find- 
ing of  the  trial  judge,  on  conflicting 
affidavits,  is  conclusive  on  appeal,  even 
though  the  question  in  controversy  be  the 
disqualification  of  the  judge  himself.  Estu- 
dillo  v.  Security  Loan  etc.  Co.,  158  Cal. 
66;  109  Pac.  884.  It  is  not  sufficient  that 
the  party  believes  he  cannot  have  a  fair 
and  impartial  trial,  but  the  facts  must  be 
set  forth,  which  would  lead  a  reasonable 
mind  to  believe  that  such  was  the  case. 
People  V.  Findlay,  132  Cal.  301;  64  Pac.  472. 


An  affidavit  made  upon  information  and 
belief  is  not  sufficient:  the  facts  must  be 
stated,  and  the  source  of  the  information 
shown,  upon  which  the  belief  is  based. 
People  v.  Williams,  24  Cal.  31;  Morehouse 
V.  Morehouse,  136  Cal.  332;  68  Pac.  976. 
Facts  must  be  shown  (Dakan  v.  Superior 
Court,  2  Cal.  App.  52;  82  Pac.  1129) ;_  the 
conclusions  of  the  party  are  not  sufficient. 
Hoyt  v.  Zumwalt,  149  Cal.  382;  86  Pac. 
600.  Erroneous  rulings  are  not  evidence 
of  bias.   People  v.  Williams,  24  Cal.  31. 

Test  of  bias.  When  the  facts  would 
justify  a  reasonable  person  in  believing 
that  he  cannot  have  a  fair  and  impartial 
trial  before  the  judge  about  to  try  the 
cause,  another  judge  should  be  called  in. 
Johnston  v.  Dakan,  9  Cal.  App.  524;  99 
Pac.  729. 

Power  of  judge  disqualified  by  bias.  In 
case  of  disqualification,  the  judge  has  no 
power,  except  to  arrange  his  calendar, 
regulate  the  order  of  business  (People  v. 
De  la  Guerra,  24  Cal.  73),  and  transfer  the 
cause  to  another  court  (Livermore  v.  Brun- 
dage,  64  Cal.  299;  30  Pac.  818),  or  grant  a 
motion  for  change  of  venue.  People  v.  Mc- 
Garvev,  56  Cal.  327;  Kern  Vallev  Water 
Co.  V.  MeCord,  79  Cal.  646;  11  Pac.  798.  He 
may  transfer  the  matter  from  his  depart- 
ment to  another  department  of  the  supe- 
rior court  for  hearing,  instead  of  to  the 
superior  court  of  another  county.  Petition 
of  Los  Angeles  Trust  Co.,  158  Cal.  603; 
112  Pac.  56.  A  disqualified  judge  cannot 
preside  at  the  arraignment  of  a  defendant, 
nor  hear  his  plea,  nor  take  any  step  in 
the  prosecution  against  him.  People  v. 
Ebey,  6  Cal.  App.  769;  93  Pac.  379.  A 
disqualification  is  no  ground  for  change  of 
place  of  trial  in  criminal  eases.  People  v. 
McGarvey,  56  Cal.  327.  The  motion  for  a 
change  of  place  of  trial,  in  civil  cases,  on 
account  of  the  disqualification  of  the 
judge,  must  be  granted,  where  the  judge 
is  disqualified,  and  there  is  no  other  su- 
perior judge  present  to  try  the  cause;  but 
it  is  otherwise  where  another  superior 
judge,  who  is  holding  court  at  the  time, 
and  who  is  qualified  to  try  the  cause,  has 
been  called  for  that  purpose,  and  is  ready 
and  willing  to  try  it.  Upton  v.  Upton,  94 
Cal.  26;  29  Pac.  411;  Barnhart  v.  Fulkerth, 
59  Cal.  130;  Livermore  v.  Brundage,  64 
Cal.  299;  30  Pac.  848;  Finn  v.  SpagnoH, 
67  Cal.  330;  7  Pac.  746.  Where  a  qualified 
judge  has  been  called  in  with  the  consent 
of  both  parties,  a  party  is  estopped  to  ob- 
ject, after  trial  has  commenced,  upon  the 
ground  that  such  judge  was  called  in  by 
the  disqualified  judge.  Oakland  v.  Hart, 
129  Cal.  98;  61  Pac.  779.  The  validity  of 
the  transfer  to  another  county  cannot  be 
questioned  in  a  collateral  proceeding. 
Gage  V.  Downey,  79  Cal.  140;  21  Pac.  527, 
855.  Wliere  the  judge  has  jurisdiction  to 
make  an  order  or  render  a  judgment,  it  is 
not  a  subject  for  collateral  attack  (Dore 
V.  Dougherty,  72  Cal.  232;  1  Am.  St.  Rep.' 


97 


NO   JUDICIAL  OFFICER  TO   HAVE  PARTNER  PRACTICING   LAW.       §§  171,  172 


48;  13  Pac.  621;  Johnston  v.  San  Fran- 
cisco Sav.  Union,  75  Cal.  134;  7  Am.  St. 
Rep.  129;  16  Pac.  753;  Gage  v.  Downey,  79 
Cal.  140;  21  Pac.  527,  855;  Hill  v.  City  Cab 
etc.  Co.,  79  Cal.  188;  21  Pac.  728;  Pehr 
son  V.  Hewitt,  79  Cal.  594;  21  Pac.  950); 
but  a  judgment  bv  a  disqualified  judge  is 
void.    Estate  of  White,  37  Cal.  190. 

Selection  of  judge.  •  The  law  selects  the 
judge  to  try  the  action,  where  undisputed 
facts  showing  bias  and  prejudice  are  be- 
fore the  court;  a  disqualified  judge  can 
neither  try  the  case  nor  select  his  own 
judge  to  try  it.  Parrish  v.  Riverside  Trust 
Co.,  7  Cal.  App.  95;  93  Pac.  685.  A  judge 
disqualified  by  relationship  to  an  attorney 
for  a  defendant  iu  a  criminal  case  has 
power  to  select  a  qualified  judge  to  try  the 
case.  Decision  by  the  supreme  court  in 
People  V.  Ebey,  6  Cal.  App.  769,  774;  93 
Pac.  379.  The  express  prohibition  of  this 
section,  that  no  disqualified  judge  shall 
act,  applies  in  construing  §  1054,  post. 
Johnson  v.  German  American  Ins.  Co.,  150 
Cal.  336;  88  Pac.  985. 

Power  of  judge  acting  in  another  county. 
A  judge  called  to  act  for  a  disqualified 
judge  is  not  required  to  deliberate  upon 
the  case,  nor  to  prepare  his  findings  and 
order  for  judgment,  in  the  county  in  which 
the  cause  is  pending.  Estudillo  v.  Security 
Loan  etc.  Co.,  158  Cal.  66;  109  Pac.  884. 

Validity  of  judgment  by  disqualified  judge. 
See  note  84  Am.   Dec.   126. 

Power  of  disqualified  judge  to  make  formal 
orders  or  to  perform  ministerial  acts.  See  note 
5  Ann.  Gas.  975. 

Efi'ect  upon  decision  of  tribunal  of  participa- 
tion by  disqualified  judge  whose  vote  does  not 
produce  result.    See  note  13  Ann.  Cas.  336. 


Disqualification  of  judge  who  Is  resident  or  tax- 
payer in  municipality  which  is  party  to  proceed- 
ings before  him.    See  note  6  Ann.  (as.  40(;. 

Disqualification  of  judge  interested  in  dece- 
dent's estate  to  act  in  estate  matter.  Sue  note 
Ann.   Cas.   1912C,   1165. 

Degree  of  relationship  to  party  necessary  to 
disqualify  judge.    See  note  12  Ann.  Cas.   516. 

Affinity  or  relationship  to  party  as  disqualifica- 
tion of  judge.    See  note  79  Am.  St.  Kep.   199. 

Waiver  of  objection  to  disqualified  judge.  See 
notes   10   Ann.   Cas.   969;    Ann.   Cas.    191J.V,    1072. 

Disqualification  of  judge  by  prior  connection 
with  case.    See  note  25  L.  R.   A.   114. 

Disqualification  of  judge  for  political  bias  or 
prejudice.    See  note  20  Ann.   Cas.  424. 

Membership  in  association  or  body  instigating 
or  conducting  disbarment  proceedings  as  disqual- 
ifying judge  to  sit  in  case.  See  notes  Ann.  Cas. 
1913A,   1229;  39  L.  R.  A.   (N.  S. )    116. 

Prejudice  against  liquor  traffic  as  constituting 
disqualification  of  judge  to  try  case  involving 
liquor  laws.    See  note  Ann.  Cas.   1912A,   1203. 

Signing  petition  for  local  option  election  as 
disqualifying  judge  from  action  thereon.  See 
note  Ann.  Cas.   1912C,  1092. 

CODE  COMMISSIONERS' NOTE.  Stats.  1863, 
p.  343.  The  three  causes  stated  in  the  text  are 
the  only  ones  which  work  a  disqualification  of  a 
judicial  officer.  The  exhibition  by  a  judge  of 
partisan  feeling,  or  the  unnecessary  e.xpression  of 
an  opinion  upon  the  justice  or  merits  of  a  con- 
troversy, though  exceedingly  indecorous,  improper, 
and  reprehensible,  as  calculated  to  throw  sus- 
picion upon  the  judgments  of  the  court  and  bring 
administration  of  justice  into  contempt,  are  not, 
under  the  statute,  sufficient  to  authorize  a  change 
of  venue  on  the  ground  that  the  judge  is  disquali- 
fied from  sitting.  The  law  establishes  a  different 
rule  for  determining  the  qualification  of  judges 
from  that  applied  to  jurors.  The  reason  for  the 
distinction  is  obvious.  The  province  of  the  jury 
is  to  determine  from  the  evidence  the  issues  of 
fact  presented  by  the  parties,  and  their  decision 
is  final  in  all  cases  where  there  is  a  conflict  of 
testimony.  The  province  of  a  judge  is  to  decide 
such  questions  of  law  as  may  arise  in  the  prog- 
ress of  the  trial.  His  decisions  upon  these  points 
are  not  final,  and  if  erroieous,  the  party  has  his 
remedy  by  appeal.  McCauley  v.  Weller,  12  Cal. 
500. 


§  171.  Judges  and  county  clerks,  when  prohibited  from  practicing  law. 
No  justice,  or  judge  of  a  court  of  record,  or  county  clerk,  shall  practice  law 
in  any  court  of  this  state,  nor  act  as  attorney,  agent,  or  solicitor  in  the 
prosecution  of  any  claim  or  application  for  lands,  pensions,  patent  rights, 
or  other  proceedings,  before  any  department  of  the  state  or  general  govern- 
ment, or  courts  of  the  United  States,  during  his  continuance  in  office ;  nor 
shall  any  justice  of  the  peace  practice  law  bsfore  any  justices'  court  in  the 
county  in  which  he  resides. 


Enacted   March  11,  1873 
p.   343);    and   then   read: 


Legislation  §  171.    1 
(based   on   Stats.    1863 

"A  judge  cannot  act  as  attorney  or  counsel  in  a 
court  in  which  he  is  judge,  or  in  an  action  or 
proceeding  removed  therefrom  to  another  court 
for  trial  or  review,  or  in  an  action  or  proceeding 
from  which  an  appeal  may  lie  to  his  own  court." 

3.   Amended  by  Code  Amdts.   1880,   p.   42,   to 
read:    "No  justice  or  judge  of  a  court  of  record 


shall  practice  law  in  any  court  of  this  state  dur- 
ing his  continuance  in  office,  nor  shall  any  justice 
of    the    peace    practice    law    before    any    justice's 
court  in  the  county  where  he  resides." 
3.   Amended  by  Stats.   1881.  p.  78. 

CODE  COMMISSIONERS' NOTE.    Stats.  1863, 
p.   343. 


§  172.  No  judicial  officer  to  have  partner  practicing  law.  No  justice, 
judge,  or  other  elective  judicial  officer,  or  court  commissioner,  shall  have  a 
partner  acting  as  attorney  or  counsel  in  any  court  of  this  state. 


Legislation  §  172.  1.  Enacted  March  11,  1873, 
as  §  173  (based  on  Stats.  1863,  p.  343),  and 
then  read:  "No  judge  or  other  elective  judicial 
officer,  or  district  court  commissioner,  shall  have 
a  partner  acting  as  attorney  or  counsel  in  any 
court  of  this  state." 
1  Fair. — 7 


3.   Amended  by  Code  Amdts.  1880,  p.  42,  and 

renumbered  §  172. 


CODE  COMlVnSSIONEKS' NOTE, 
p.  343. 


Stats.  1863, 


§§  173-178      INCIDENTAIi  POWERS  AND  DUTIES  OF  JUDICIAL  OFFICERS. 


98 


§  173.     [Renumbered  and  amended  section.] 

Legislation  §  173.      Renumbered  §  172  by  Stats.        Legislation  §  172. 
1880,    p.    21,    in    amending    Part    I.      See    ante, 


CHAPTER  IV. 

INCIDENTAL  POWERS  AND  DUTIES  OF  JUDICIAL  OFFICERS. 


§  176.    Powers  of  justice  or  judge  out  of  court. 
§  177.     Powers   of   judicial   officers   as   to   conduct 
of  proceedings. 


§  178.     To  punish  for  contempt. 

§  179.    To  take  acknowledgments  and  afBdavits. 


§  176.  Powers  of  justice  or  judge  out  of  court.  A  justice  or  judge  may- 
exercise  out  of  court  all  the  powers  expressly  conferred  upon  a  justice  or 
judge,  as  contradistinguished  from  the  court. 


Power  of  judge. 

1.  At  chambers.    Ante,  |§  165,  166. 

2.  To  administer  oaths.     Post,  §  179. 

Legislation  §  176.     1.  Enacted  March  11,  1873. 
8.   Amended    by    Code    Amdts.     1880.    p.    42, 

(1)  adding    the    words    "justice    or"    before    the 
word  "judge,"   in  both  places  where  printed,   and 

(2)  omitting    the    comma    after    "exercise"    and 
after  "court,"  in  first  line. 


Power  of  judge  out  of  court.  This  sec- 
tion confers  power  to  extend  the  time  in 
which  to  prepare  and  serve  a  statement  on 
motion  for  a  new  trial,  even  in  a  county 
other  than  that  in  which  the  trial  took 
place.  Matthews  v.  Superior  Court,  68  Cal. 
638;  10  Pae.  128, 


§  177.  Powers  of  judicial  officers  as  to  conduct  of  proceedings.  Every 
judicial  officer  shall  have  power: 

1.  To  preserve  and  enforce  order  in  his  immediate  presence,  and  in  pro- 
ceedings before  him,  when  he  is  engaged  in  the  performance  of  official  duty ; 

2.  To  compel  G?i3edience  to  his  lawful  orders  as  provided  in  this  code ; 

3.  To  compel  the  attendance  of  persons  to  testify  in  a  proceeding  before 
him,  in  the  cases  and  manner  provided  in  this  code ; 

4.  To  administer  oaths  to  persons  in  a  proceeding  pending  before  him,  and 
in  all  other  cases  where  it  may  be  necessary  in  the  exercise  of  his  powers 
and  duties. 


Incidental  powers  of  courts.    Ante,  §  128. 

Legislation  8  177.    1.  Enacted  March  11,  1872. 
2.   Amended  by  Code  Amdts.  1880.  p.  42,   (1) 

in  introductory  paragraph,  substituting  "shall 
have"  for  "has";  (2)  in  subd.  1,  striking  out  (a) 
"the"  before  "proceedings,"  and  (b)  "an"  be- 
fore "official  duty";  (3)  in  subd.  2,  striking  out 
a  comma  after  "orders";  (4)  in  subd.  4,  striking 
out  a  comma  after  "necessary." 

Power  to  compel  witness  to  testify.  This 
section  gives  a  judge,  in  whose  court  an 
action  is  pending,  power  to  order  the  at- 
tendance of  a  witness  before  him  to  make 


a  deposition,  and  may  command  the  wit- 
ness to  answer  proper  interrogatories,  and 
if  his  orders  are  disobeyed,  he  may  punish 
the  witness  for  contempt.  Burns  v.  Supe- 
rior Court,  140  Cal.  1;  73  Pac.  597. 

Power  to  administer  oaths.  A  justice 
of  the  peace  has  power  to  administer 
oaths,  and  to  certify  to  a  complaint  char- 
ging a  person  with  the  commission  of  a 
crime.  People  v.  Le  Roy,  65  Cal.  613;  4 
Pac.  649. 


§  178.  To  punish  for  contempt.  For  the  effectual  exercise  of  the  powers 
conferred  by  the  last  section,  a  judicial  officer  may  punish  for  contempt  in 
the  cases  provided  in  this  code. 


Contempt. 

1.  Generally.    Post,  §  1209. 

2.  In  justices'  courts.    Post,  §  906. 

Legislation  §  178.     1.  Enacted  March  11,  1872. 
2.   Re-enacted   by    Code    Amdts.    1880,   p.    42, 
in  amending  Part  I. 

Power  to  punish  for  contempt.  A  judi- 
cial officer  has  power,  under  this  section, 
and  it  is  his  duty,  to  punish  a  witness  for 
contempt  for  a  refusal  to  answer  pertinent 
questions   upon   the   taking  of   his   deposi- 


tion, and  the  supreme  court  will,  by  writ 
of  mandate,  compel  such  judicial  officer  to 
employ  the  process  of  contempt  against 
the  witness  who  so  refuses.  Crocker  v. 
Conrey,  140  Cal.  213;  73  Pac.  1006. 

Power  of  judges  to  punish  for  contempt.  See 
note  117  Am.  St.  Rep.  956. 

Power  of  magistrate  to  punish  witness  for  con- 
tempt.   See  note  1  L.  R.  A.   (N.  S.)    1135. 

CODE  COMMISSIONERS'  NOTE.  See  post, 
§§  1209  to  1222,  inclusive. 


99 


TO  TAKE  ACKNOWLEDGMENTS  AND  AFFIDAVITS. 


§§  179-182 


§  179.  To  take  acknowledgTiients  and  affidavits.  Each  of  the  justices  of 
the  supreme  court,  and  judges  of  the  superior  courts,  shall  have  power  in 
any  part  of  the  state,  and  every  justice  of  the  peace  within  his  city  and 
county,  or  county,  and  a  judge  of  a  police  or  other  inferior  court  within  his 
city  and  county,  city,  or  town,  to  take  and  certify: 

1.  The  proof  and  acknowledgment  of  a  conveyance  of  real  property,  or 
of  any  other  written  instrument; 

2.  The  acknowledgment  of  satisfaction  of  a  judgment  of  any  court ; 

3.  An  affidavit  or  deposition  to  be  used  in  this  state. 

certificate  of  acknowledgment  is  by  the 
justice  of  the  peace  of  another  county,  it 
must  be  accompanied  by  a  certificate  of 
the  county  clerk  of  that  county,  before  it 
may  be  recorded.  Middlecoff  v.  Hemstreet, 
135  Cal.  173;  67  Pac.  768. 

Power  of  judge  of  an  inferior  court. 
Where  a  city  recorder  has  been  given  the 
power  of  a  justice  of  the  peace,  he  may, 
like  a  justice  of  the  peace,  take  and  cer- 
tify acknowledgments  and  afiidavits. 
Prince  v.  Fresno,  88  Cal.  407;  26  Pac.  606. 


Subd.  1.  Real  property,  acknowledgment  of 
conveyance  of.     See  Civ.  Code,  §§  1180  et  seq. 

Subd.   2.     Satisfaction  of  judgment.  Post,  §  675. 

Subd.   3.      Affidavit.      Post,     §§    2009     et     seq. 

Deposition.    Post,  §§  2019  et  seq. 

Legislation  §  179.  1.  Enacted  March  11,  1873  ; 
based  on  Stats.  1863,  p.  345. 

2.  Amended  by  Code  Amdts.  1880,  p.  42, 
substituting  a  new  introductory  sentence  for  the 
original,  which  read:  "The  justices  of  the  supreme 
court,  and  the  judges  of  the  district  and  county 
courts,  have  power  in  any  part  of  the  state,  and 
justices  of  the  peace  within  their  respective  coun- 
ties, and  police  judges,  and  judges  of  municipal 
courts,  within  their  respective  cities  or  towns,  to 
take  and  certify." 

Power  of  justice  of  the  peace.  A  jus- 
tice of  the  peace  may  take  acknowledg- 
ments, but  his  jurisdiction  in  such  matters 
is  limited  to  his  own  county,  and  where  a 


What  disqualification  prevents  officer  from 
taking  acknowledgment.  See  note  32  Am.  Dec. 
757. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863. 
p.  345. 


CHAPTER  V. 

MISCELLANEOUS  PROVISIONS  RESPECTING  COURTS  AND  JUDICIAL  OFFICERS. 


§  182.  Subsequent  applications  for  orders  re- 
fused, when  proliibited. 

§  183.    Violations  of  preceding  section. 

I  184.  Proceedings  not  affected  by  vacancy  in 
office. 


§  185.     Proceedings  to  be  in  English  language. 
§  186.     Abbreviations  and  figures. 
§  187.     Means  to  carry  jurisdiction  into  effect. 
§  188.      Disposition    of    funds    paid    to    clerk    or 
treasurer  by  order  of  court. 


§  182.     Subsequent  applications  for  orders  refused,  when  prohibited.    Tf 

an  application  for  an  order,  made  to  a  judge  of  a  court  in  which  the  action 
or  proceeding  is  pending,  is  refused  in  whole  or  in  part,  or  is  granted  con- 
ditionally, no  subsequent  application  for  the  same  order  shall  be  made  to 
any  court  commissioner,  or  any  other  judge,  except  of  a  higher  court;  but 
nothing  in  this  section  applies  to  motions  refused  for  informality  in  the 
papers  or  proceedings  necessary  to  obtain  the  order,  or  to  motions  refused 
with  liberty  to  renew  the  same. 

Pac.  487.  A  dismissal  of  the  motion  as  to 
one  party  and  a  denial  as  to  another,  is  a 
final  disposition,  and  a  second  motion  will 
not  be  considered  (Hellings  v.  Duvall,  131 
Cal.  618;  63  Pac.  1017);  but  a  dismissal 
without  prejudice  is  not  a  denial  of  the 
motion.  Wolff  v.  Canadian  Pacific  Ry.  Co., 
89  Cal.  332;  26  Pac.  825.  Striking  a  mo- 
tion from  the  calendar  is  a  denial.  Lang 
V.  Superior  Court,  71  Cal.  491;  12  Pac.  306, 
416.  Granting  leave  to  renew  motions, 
where  jurisdiction  is  not  limited  by  stat- 
ute, is  in  the  discretion  of  the  judge;  and 
this  discretion  will  not  be  interfered  with, 
except  in  cases  of  palpable  abuse.  Bowers 
V.  Cherokee  Bob,  46  Cal.  279;  Hitchcock 
V.    McElrath,    69    Cal.    634;    11    Pac.    487; 


Orders  and  motions  generally.  Post,  §§  1003 
et  seq. 

Orders,  appealable.    Post,  §  939,  subd.  3. 

Legislation  §  182.  1.  Enacted  March  11,  1873; 
based  on  Stats.  1863,  p.  345. 

2.  Amended  by  Code  Amdts.  1880,  p.  43,  (1) 
changing  "can"  to  "shall,"  after  vrords  "same 
order";  (2)  omitting  word  "any"  before  "in- 
formality"; and  (3)  adding  at  end  of  section  the 
clause  beginning  "or  to  motions." 

Application  for  order  after  denial.     The 

court  will  not  enforce  the  rule  of  the  stat- 
ute, where  it  has  acted  prematurely  or  in- 
advertently in  making  an  order  (Odd  Fel- 
lows' Sav.  Bank  v.  Deuprey,  66  Cal.  168;  4 
Pac.  1173);  nor  where  there  was  an  in- 
formality in  the  papers  or  proceedings,  and 
the  motion  is  denied  upon  that  ground. 
Hitchcock    V.    McElrath,    69    Cal.    634;    11 


§§  183-187  MISCELLANEOUS  PROVISIONS.  100 

Johnston  v.  Brown,   115  Cal.  694;  47  Pac.  from  the  files.    People   v.   Center,   61   Cal. 

686.     Leave  may  be  granted  after  an  origi-  191.     If  an  attorney  has  rendered  services 

nal  motion  has  been  denied.    Hitchcock  v.  to  an  executor  in  the  defense  of  a  contest 

McElrath,  69  Cal.  634;   11  Pac.  487;  Ken-  to  a  will,  and  his  application  for  compen- 

ney  v.  Kelleher,  63  Cal.  442;  Johnston  v.  sation  is  denied,  but  with  the  privilege  of 

Brown,  115  Cal.  694;  47  Pac.  686.    The  doc-  renewing  the  same,  he  may  make  a  second 

trine  of  res  adjudicata  is  not  applicable  to  application,  after  judgment  admitting  the 

motions   in   pending   actions.    Johnston   v.  will  to  probate  and   the  perfection  of   an 

Brown,  115  Cal.  694;  47  Pac.  686;  Ford  v.  appeal    from    such    judgment.     Estate    of 

Doyle,    44    Cal.    635;    Bowers    v.    Cherokee  Eiviere,   8   Cal.   App.   773;   98  Pac.  46.     A 

Bob,  46  Cal.  279.     But  a  party  seeking  to  second  motion  for  a  new  trial   cannot  be 

renew  his  motion,  after  a   denial  thereof,  made  after  a  denial  of  the  first:   the  rem- 

must  show  either  that  the  denial  was  for  edy    is    by    appeal    from    the    first    order, 

some  informality  in  the  papers  or  proceed-  Coombs  v.  Hibberd,  43  Cal.  452;  Thompson 

ings,  or  that  he  has  been  granted  permis-  v.  Lynch,  43  Cal.  482;  People  v.  Center,  61 

sion  to  renew  the  same.    Victor  Power  etc.  Cal.   191;  Dorland  v.  Cunningham,  66  Cal. 

Co.  V.  Cole,  11  Cal.  App.  497;  105  Pac.  758.  484;  6  Pac.  135;   Goyhinech  v.  Goyhinech, 

Renewal  of  motion  without  leave.    Where  80  Cal.  409,  410;  22  Pac.  175. 
a  renewal  of  the  motion  is  made  without  ^^.^^^  cOMlvnssiONEES' NOTE.    Stats.  1863. 

leave  or  court,  the  papers  may  be  stricken  p_  345. 

§  183.  Violations  of  preceding  section.  A  violation  of  the  last  section 
may  be  punished  as  a  contempt ;  and  an  order  made  contrary  thereto  may 
be  revoked  by  the  judge  or  commissioner  who  made  it,  or  vacated  by  a  judge 
of  the  court  in  which  the  action  or  proceeding  is  pending. 

Ez  parte   order,   vacating  or  modifying.    Post,        and   the   words   "or   commissioner"    added   before 
§  937.  "who  made  it." 

Legislation  §  183.    1.  Enacted  March  11,  1873  ;  CODE  COMMISSIONERS'  NOTE.    Stats.  1863. 

based  on  Stats.  1863,  p.  345.  p.  345. 

3.   Amended    by    Code    Amdts.    1880,    p.    43, 

§  184.  Proceedings  not  affected  by  vacancy  in  office.  No  proceeding  in 
any  court  of  justice,  in  an  action  or  special  proceeding  pending  therein,  shall 
be  affected  by  a  vacancy  in  the  office  of  all  or  any  of  the  judges  thereof. 

Legislation  §  184.      1.  Enacted  March  11,  1873  of  the  judges,  or  by  the  failure  of  a  term  thereof." 
(based   on   Stats.    1863,    p.    345),   and   then   read:  2.   Amended  by  Code  Amdts.  1880,  p.  43. 

"No    proceeding    in   any    court    of    justice,    in    an  rnTfP  r'mvnvrT«5C!TnTJT'T?<!' -NrnT-p      Qt,t=   ibrq 

action   or   special   proceeding   pending   therein,    is  9??      COMMISSIONERS'  NOTE.     Stats.  1863, 

affected  by  a  vacancy  in  the  office  of  all  or  any  P-  ^*^- 

§  185.  Proceedings  to  be  in  English  language.  Every  written  proceeding 
in  a  court  of  justice  in  this  state  shall  be  in  the  English  language,  and  ju- 
dicial proceedings  shall  be  conducted,  preserved,  and  published  in  no  other. 

Legislation  §  185.    1.  Enacted  March  11,  1873  may    be    either    in    the    English    or    Spanish    lan- 

(based   on   Stats.    1863,   p.    345),   and  then  read:  guage." 

"Every   written   proceeding   in   a   court   of   justice  3.   Amended  by  Code  Amdts.  ISSO,  p.  43. 

in  this   state,    or  before   a  judicial   officer,    except  rnr>P   rrnvrvrrsmnN-PT?*;' MHTP      c!t,tc    1  afi^ 

in  the  counties  of   San  Luis   Obispo,   Santa  Bar-  CODE  COMMISSIONERS  NOTE.    Stats.  1863, 

bara,  Los  Angeles,  and  San  Diego,  must  be  in  the  P-  '**°- 
English    language,    and   in   the    excepted   counties 

§186.  Abbreviations  and  figures.  Such  abbreviations  as  are  in  common 
use  may  be  used,  and  numbers  may  be  expressed  by  figures  or  numerals  in 
the  customary  manner. 

Legislation  §  188.    1.  Enacted  March  11,  1873;  mathematical  signs,  and  similar  signs  used 

based  on  Stats    1863,  p   344.  ^„„„  .,  by  merchants;  this  rule  simply  applies  to 

2.   Re-enacted    by    Code   Amdts.    ISSO,    p.   43,  . -^    .    .  '     .  i         i  if 

in  amending  Part  L  judicial  proceedings  a  rule  elsewhere  uni- 

TT    ^  versal.    Estate  of  Lakemeyer,  135  Cal.  28; 

Abbreviations   in   common   use.     Under  g^  ^^   g^   ^       9g    gg  p^^^   ^g^    j^^     .^  ^; 

the    head    "abbreviations'    are    to    be    m-       p^^^^        155  ^^1.  797;  103  Pac.  312. 
eluded  all  conventional  expressions  or  arbi- 
trary signs  that  have  passed  into  common  CODE  COMMISSIONERS' NOTE.    Stats.  1863. 
use,    such,    for    example,    as    punctuation-       P-  ^'^  • 
marks,    the    Arabic    numerals    and    other 

§  187.  Means  to  carry  jurisdiction  into  effect.  When  jurisdiction  is.  by 
the  constitution  or  this  code,  or  by  any  other  statute,  conferred  on  a  court  * 


101 


MEANS  TO   CARRY  JURISDICTION   INTO  EFFECT. 


§187 


or  judicial  officer,  all  the  means  necessary  to  carry  it  into  effect  are  also 
given;  and  in  the  exercise  of  this  jurisdiction,  if  the  course  of  proceeding 
be  not  specifically  pointed  out  by  this  code  or  the  statute,  any  suitable  pro- 
cess or  mode  of  proceeding  may  be  adopted  which  may  appear  most  con- 
formable to  the  spirit  of  this  code. 

(Thompson  v.  White,  63  Cal.  505;  Gray  v. 
Palmer,  9  Cal.  616;  Packard  v.  Bird,  40 
Cal.  378;  Harris  v.  San  Francisco  Sugar 
Eefining  Co.,  41  Cal.  393;  McFadden  v. 
McFadden,  44  Cal.  306;  Hinds  v.  Gage,  56 
Cal.  486);  and  to  order  the  withdrawal  of 
an  execution  after  return,  for  further  levy. 
Weldon  v.  Rogers,  157  Cal.  410;  108  Pac. 
266.  Under  this  section,  courts  may  inquire 
into  frauds,  mistakes,  and  cognate  matters. 
Cerini  v.  De  Long,  7  Cal.  App.  398;  94  Pac. 
582.  Where  a  foreign  court  has  jurisdic- 
tion to  compel  the  holding  of  a  stockhold- 
ers' meeting,  it  has  jurisdiction  to  make 
its  judgment  in  mandamus  effective  by  ap- 
pointing a  commissioner  to  give  notice  of 
the  time  and  place  of  such  meeting  (Poto- 
mac Oil  Co.  V.  Dye,  14  Cal.  App.  674;  113 
Pac.  126,  130);  but  this  section  does  not 
authorize  a  proceeding  to  compel  one  of 
many  stockholders  in  a  corporation,  made 
defendants  to  a  creditor's  bill  to  reach 
their  unpaid  subscriptions  to  its  stock,  to 
testify  to  or  discover  the  whereabouts  of 
other  defendants,  to  enable  the  plaintiff  to 
serve  them  with  summons.  Union  Collec- 
tion Co.  V.  Superior  Court,  149  Cal.  790; 
87  Pac.  1035.  There  is  nothing  in  the 
Juvenile  Court  Law  to  preclude  the  dis- 
trict attorney  from  making  the  technical 
accusation  against  the  defendant  in  the 
form  of  an  information;  that  law  contem- 
plates an  information  without  any  prelim- 
inary examination,  but  such  an  examina- 
tion, prior  to  an  information,  may  be 
treated  as  surplusage,  and  this  section, 
therefore,  has  no  material  application  to 
the  question.  Edington  v.  Superior  Court, 
IS  Cal.  App.  739;  124  Pac.  450;  128  Pac. 
338.  If  any  judicia.1  wrong  has  been  com- 
mitted in  the  conduct  of  an  election,  the 
superior  court  may,  in  the  exercise  of  its 
equity  powers,  remedy  it.  Cerini  v.  De 
Long,  7  Cal.  App.  398;  94  Pac.  582. 

Process  and  procedure.  The  court  has 
power,  under  this  section,  to  adopt  a  mode 
of  proceeding  in  setting  aside  a  homestead 
(Mawson  v.  Mawson,  50  Cal.  539;  Estate 
of  McCauley,  50  Cal.  544;  Kearney  v. 
Kearney,  72  Cal.  591;  15  Pac.  769;  Brown 
V.  Starr,  75  Cal.  163;  16  Pac.  760;  Estate 
of  Burdick,  76  Cal.  639;  18  Pac.  805;  Es- 
tate of  Walkerly,  81  Cal.  579;  22  Pac.  888; 
Somers  v.  Somers,  81  Cal.  608;  22  Pac. 
967),  and  dealing  with  the  same,  cutting 
down  and  limiting  it  (Estate  of  Burdick, 
76  Cal.  639;  IS  Pac.  805);  requiring  an 
appraiser  to  divide  the  homestead  (Brown 
V.  Starr,  75  Cal.  163;  16  Pac.  760);  authen- 
ticating papers  (Somers  v.  Somers,  81  Cal. 
608;  22  Pac.  967);  enforcing  the  constitu- 
tional rights  of  the  defendant  to  have  wit- 


Legislation  §  187.  1,  Enacted  March  11,  1873; 
based  on   New  York  code. 

3.  Amended  by  Code  Amdts.  1880,  p.  43,  (1) 
adding,  in  first  line,  the  words  "the  constitution 
or,"  and  (2)  changing  "the"  to  "this,"  before 
"jurisdiction." 

The  means  necessary.  This  section  is 
merely  declaratory  of  the  common  law 
(Golden  Gate  Cons.  etc.  Mining  Co.  v.  Su- 
perior Court,  65  Cal.  187;  3  Pac.  628);  but, 
to  make  it  available,  there  must  be  some 
law  conferring  jurisdiction  upon  the  court 
(Tulare  County  v.  Kings  County,  117  Cal. 
195;  49  Pac.  8),  as  it  does  not  confer  juris- 
diction: it  merely  operates  to  enable  the 
court  to  exercise  a  jurisdiction  otherwise 
conferred.  Union  Collection  Co.  v.  Supe- 
rior Court,  149  Cal.  790;  87  Pac.  1035.  The 
provision  is  conformable  to  the  spirit  of 
the  code,  and  is  limited  to  those  cases 
where  no  course  of  procedure  is  pointed 
out  by  the  code  or  some  statute.  Gardner 
V.  Superior  Court,  19  Cal.  App.  548;  126 
Pac.  501.  The  power  should  not  be  exer- 
cised when  the  existing  law,  by  a  reason- 
able construction,  provides  the  process  or 
mode  of  proceeding.  McKendrick  v.  West- 
ern Zinc  Min.  Co.,  165  Cal.  30;  130  Pac. 
865.  Where  neither  the  legislature  nor  the 
rules  of  court  prescribe  any  means  or 
method  for  enforcing  a  right,  the  court 
may  adopt  any  appropriate  and  approved 
mode  of  procedure  that  may  have  been  em- 
ployed by  an  aggrieved  party.  People  v. 
Robinson,  17  Cal.  App.  273;  119  Pac.  527. 
The  superior  court  has  power  to  compel  a 
discovery  in  all  cases,  where,  under  the 
established  rules  of  chancery  practice  ex- 
isting at  the  time  of  the  adoption  of  the 
constitution,  a  party  would  have  been  en- 
titled to  such  relief.  Union  Collection  Co. 
V.  Superior  Court,  149  Cal.  790;  87  Pac. 
3  035.  It  has  power  to  determine  that  the 
amount  of  legal  taxes  due  was  just  and 
legal,  and  to  require  the  payment  thereof 
as  a  condition  to  the  granting  of  an  in- 
junction against  the  execution  of  a  tax 
deed  (San  Diego  Realty  Co.  v.  Cornell,  150 
Cal.  637;  89  Pac.  603);  to  take  evidence  to 
determine  the  degree  of  a  crime  (People 
V.  Chew  Lan  Ong,  141  Cal.  550;  99  Am. 
St.  Rep.  88;  75  Pac.  186);  to  appoint  a 
commissioner  to  sell  land  under  a  decree 
of  foreclosure  (Crane  v.  Cummin 2;s,  137 
Cal.  201;  69  Pac.  984;  Kreling  v.  Kreling, 
118  Cal.  413;  50  Pac.  546);  to  appoint  a 
receiver  to  make  a  conveyance  of  property 
under  decree  of  court  (Scadden  Flat  Gold 
Mining  Co.  v.  Scadden,  121  Cal.  33;  53 
Pac.  440);  to  issue  a  writ  of  assistance  in 
a  judgment  in  ejectment  (Kirseh  v. 
Kirsch,  113  Cal.  56;  45  Pac.  164);  to  make 
interlocutory  decrees  and  orders  in  equity 


§  188  MISCELLANEOUS   PROVISIONS.  102 

nesses  examined  in  open  court  (Willard  Superior  Court,  65  Cal.  187;  3  Pac.  628); 
V.  Superior  Court,  82  Cal.  256;  22  Pac.  enforcing  a  stipulation  of  the  parties 
1120);  levying  taxes  for  road  purposes  (Grady  v.  Porter,  53  Cal.  680);  reviewing 
(Comstock  V.  Yolo  County,  71  Cal.  599;  12  the  ruling  of  a  justice's  eourt  on  appeal 
Pac.  728;  San  Luis  Obispo  County  v.  (Maxson  v.  Superior  Court,  12-4  Cal.  468- 
White,  91  Cal.  432;  24  Pac.  864;  27  Pac.  57  Pac.  379);  and  making  up,  auditing, 
756) ;  adjudicating  the  insolvency  of  a  and  settling  the  account  of  a  guardian  be- 
banking  corporation  (People  v.  Superior  yond  the  jurisdiction  of  the  court.  Trump- 
Court,  100  Cal.  105;  34  Pac.  492);  setting  ler  v.  Cotton,  109  Cal.  250,  41  Pac.  1033; 
aside  and  declaring  fraudulent  proceedings  Graff  v.  Mesmer,  52  Cal.  636. 
in  insolvency   (Estudillo  v.  Meverstein    72 

Pol     Q17.   IP  T3„\,    QRQ\      o„fi,      ■i^-                '•  CODE    COMMISSIONERS'    NOTE.      This    sec- 

Cal.  31/;  13  Pac.  869);  authorizing  service  tion   is   adopted  from  the   Xew   York   code.     The 

or   an   order,   where   a  party   conceals   him-  italicized   words    ["necessary"   and   "or  the   stat- 

self  (Golden  Gate  Cons.  etc.  Mining  Co.  v,  ute"]   have  been  added  by  this  commission. 

§  188.    Disposition  of  funds  paid  to  clerk  or  treasurer  by  order  of  court. 

When  any  money  is  deposited  with  the  clerk  of  any  superior  court  pur- 
suant to  any  action  or  proceeding  therein  or  pursuant  to  any  order,  decree 
or  judgment  of  the  court,  or  when  any  money  is  to  be  paid  to  the  treasurer 
pursuant  to  any  provision  of  this  code,  such  money  shall  be  forthwith 
deposited  with  such  treasurer  and  a  duplicate  receipt  of  the  treasurer 
therefor  shall  be  filed  with  the  auditor.  The  certificate  of  the  auditor  that 
such  duplicate  receipt  has  been  so  filed  shall  be  necessary  before  the  clerk 
or  party  required  to  deposit  such  money  shall  be  entitled  to  a  discharge  of 
the  obligation  imposed  upon  him  to  make  such  deposit.  When  any  money 
so  deposited  is  to  be  withdrawn  or  paid  out,  the  order  directing  such  pay- 
ment or  withdrawal  shall  require  the  auditor  to  draw  his  warrant  therefor 
and  the  treasurer  to  pay  the  same. 

Legislation  §  188.      Added     by     Stats.     1915,         vening  terms,"  was  added  by  Code  Amdts.  1873— 
p.  942.  74,   p.  285,   and  repealed  by  Code  Amdts.  1880, 

Tho  original  §  188,   entitled  "Trials  and  inter-         p.  21,  in  amending  Part  I. 


103 


DEFINITION  OP  JURY. 


§§  190-192 


TITLE  III. 

PERSONS  SPECIALLY  INVESTED  WITH  POWERS  OF  A  JUDICIAL 

NATURE. 


Chapter  I. 
II. 


Jurors.     Articles    I-XII.     §§  190-254. 
Court   Commissioners.     §§  258,  259. 


CHAPTER  L 

JUROES. 

Article  I.  Jurors  in  General.     §§  190-195. 

II.  Qualifications  and  Exemptions  of  Jurors.     §§  198-202. 

III.  Of  Selecting  and  Returning  Jurors  for  Courts  of  Record.     §§  204-211. 

IV.  Of  Drawing  Jurors  for  Courts  of  Record.     §§  214-221. 

V.  Of  Summoning  Jurors  for  Courts  of  Record.     §§  225-228. 

VI.  Of  Summoning  Jurors  for  Courts  not  of  Record.     §§230-232. 

Vn.  Of  Summoning  Juries  of  Inquest.     §  235. 

VIII.  Obedience  to  Summons,  how  Enforced.     §  238. 

IX.  Of  Impaneling  Grand  Juries.     §§241-243. 

X.  Of  Impaneling  Trial  Juries  in  Courts  of  Record.     §§  246-248. 

XL  Of  Impaneling  Trial  Juries  in  Courts  not  of  Record.     §§250,251. 

XII.  Of  Impaneling  Juries  of  Inquest.     §  254. 


ARTICLE  L 

JURORS  IN  GENERAL. 


8  190.    Jury  defined. 

§  191.    Different  kinds  of  juries. 

§  192.    Grand  jury  defined. 


§  193.    Trial  jury  defined. 

§  194.    Number  of  a  trial  jury. 

§  195.     Jury  of  inquest  defined 


§  190.  Jury  defined.  A  jury  is  a  body  of  men  temporarily  selected  from 
the  citizens  of  a  particular  district,  and  invested  with  power  to  present  or 
indict  a  person  for  a  public  offense,  or  to  try  a  question  of  fact. 

Jurors.  3.  Impaneling.    Post,  §§  241-254. 

1.  Qualifications  and      exemptions.       Post,            -r     ^  ,  ..•      »,«^     -    ^           ,  ,,                -„    ~ 
§§198-202  Legislation  §  190.    1.  Enacted  March  11,  1872. 

2.  Selecting    and  summoning.     Post,  §§  204,             ^'  Ke-enacted  by  Code  Amdts.  1880,  p.  44,  in 
233  amending  Part  I. 

§  191.     Different  kinds  of  juries.     Juries  are  of  three  kinds: 

1.  Grand  juries; 

2.  Trial  juries ; 

3.  Juries  of  inquest. 

Legislation  §  191.    1.  Enacted  March  11,  1872. 
2.   Re-enacted  by  Code  Amdts.  1880,  p.  44,  in 


amending  Part  T. 


§  192.  Grand  jury  defined.  A  grand  jury  is  a  body  of  men,  nineteen  in 
number,  returned  in  pursuance  of  law,  from  the  citizens  of  a  county,  or  city 
and  county,  before  a  court  of  competent  jurisdiction,  and  sworn  to  inquire 
of  public  offense  committed  or  triable  within  the  county,  or  city  and  county. 


Grand  Jury. 

1.  Impaneling.    Post,  §§  241-243. 

2.  How  often  drawn.    Const.,  art.  i,  5  8. 

Legislation  §  192.  1.  Enacted  March  11,  1872 
(based  on  Stats.  1863,  p.  630),  and  then  read: 
"A  grand  jury  is  a  body  of  men,  not  less  than 
thirteen  nor  more  than  fifteen  in  number,  re- 
turned at  stated  periods  from  citizens  of  the 
county,  before  a  court  of  competent  jurisdiction, 
and  sworn  to  inquire  of  public  offenses  committed 
or  triable  within  the  county." 


2.  Amended  by  Code  Amdts.  1875-76,  p.  86, 

to  read  as  at  present,  except  that  (1)  it  did  not 
contain  the  words  "or  city  and  county"  in  either 
place;  (2)  the  words  "citizens  of  a  county"  were 
printed  "citizens  of  the  county";  and  (3)  the 
word  "offense"  was  printed  "offenses." 

3.  Amended  by  Code  Amdts.  1880,  p.  44. 

Jurisdiction  of  court.  The  jurisdiction 
of  the  superior  court  to  impanel  a  grand 
jury  is  drawn  from  the  law,  and  not  from 


§§  193-198 


JURORS. 


104 


ever,  unless  both  the  sheriff  and  the  cor- 
oner are  disqualified.  Bruner  v.  Superior 
Court,  92  Cal.  239;  28  Pac.  341. 

See 


any  order  of  the  court.   Bruner  v.  Superior 
Court,  92  Cal.  239;  28  Pac.  341. 

Eeturn  of  grand  jury.  It  is  competent 
for  the  court  to  summon  a  special  venire 
to  complete  the  panel,  instead  of  drawing 
the  requisite  number  from  the  grand  jury 
box.  Levy  v.  Wilson,  69  Cal.  105;  10  Pac. 
272.  The  court  has  no  power  to  appoint 
an  elisor  to  summon  the  grand  jury,  how- 

§  193.  Trial  jury  deSned.  A  trial  jury  is  a  body  of  men  returned  from 
the  citizens  of  a  particular  district  before  a  court  or  officer  of  competent 
jurisdiction,  and  sworn  to  try  and  determine,  by  verdict,  a  question  of  fact. 


Number    necessary   to    form    grand    jury. 
notp  27  L.  R.  A.  846. 

Number  of  grand  jurors  necessary  to  constitute 
quorum.    See  note  Ann.  Cas.  1912C,  30. 

CODE   COMI/nSSIONEES'  NOTE, 
p.   630. 


Stats.  1863, 


Trial  by  jury.    Post,  5  §  600-619. 
Verdict.     Three    quarters    of    jury    can    find. 
Const.,  art.  i,  §  7.    See  also  post,  §  618. 


Legislation  §  193.    1.  Enacted  March  11,  1873. 
2.  Amended    by    Code    Amdts.    1880,    p.    44, 
striking  oat  "unanimous"  before  "verdict." 


§  194.  Number  of  a  trial  jury.  A  trial  jury  shall  consist  of  twelve  men ; 
provided,  that  in  civil  actions  and  cases  of  misdemeanor,  it  may  consist  of 
twelve,  or  of  any  number  less  than  twelve,  upon  which  the  parties  may  agree 
in  open  court. 


Less  than  twelve.    Const.,  art.  i,  §  7. 

Legislation  §  194.  1.  Enacted  March  11,  1872, 
and  then  read:  "A  trial  jury  consists  of  twelve 
men,  unless  the  parties  to  the  action  or  proceed- 
ing agree  upon  a  less  number." 

2.  Amended  by  Code  Amdts.  1880,  p.  44. 

CODE  COIVIMISSIONERS'  NOTE.  A  party  fail- 
ing to  appear  at  the  trial,  it  operated  as  a  con- 
sent on  his  part  that  the  issue  should  be  tried  by 
the  court  without  a  jury.      The  other  party  could 


have  made  thig  consent  mutual  by  submitting  the 
case  to  the  court;  but  if  such  a  course  is  not 
taken,  and  the  party  appearing  calls  for  a  jury, 
he  is  bound  to  take  the  number  required  by  law. 
Twelve  is  the  number,  and  a  less  number  will 
not  constitute  a  legal  jury  without  the  consent  of 
the  adverse  party.  Such  consent  must  be  ex- 
press, and  entered  at  the  time  in  the  minutes  of 
the  court:  it  cannot  be  inferred  from  the  mere 
absence  of  the  adverse  party.  Gillespie  v.  Ben- 
son,  18  Cal.  411. 


§  195.  Jury  of  inquest  defined.  A  jury  of  inquest,  is  a  body  of  men  sum- 
moned from  the  citizens  of  a  particular  district  before  the  sheriff,  coroner, 
or  other  ministerial  officer,  to  inquire  of  particular  facts. 

Legislation  §  195.    1.  Enacted  Marchll,  1873.  2.  Re-enacted  by  Code  Amdts.  1S80.  p.  44. 


ARTICLE  II. 
QUALIFICATIONS  AND  EXEMPTIONS  OF  JUROES. 


§  198.     Who  competent  to  act  as  juror. 
§  199.    Who  not  competent  to  act  as  juror. 
§  200.    Who  exempt  from  jury  duty. 


§  201. 
§  202. 


Who  may  be  excused. 
Affidavit  of  claim  to  exemption. 


§  198.  Who  competent  to  act  as  juror.  A  person  is  competent  to  act  as 
juror  if  he  be : 

1.  A  citizen  of  the  United  States  of  the  age  of  twenty-one  years  who  shall 
have  been  a  resident  of  the  state  and  of  the  county  or  city  and  county  for 
one  year  immediately  before  being  selected  and  returned ; 

2.  In  possession  of  his  natural  faculties  and  of  ordinary  intelligence  and 
not  decrepit; 

3.  Possessed  of  sufficient  knowledge  of  the  English  language. 

See   Const.,   art.  ii,  §  4; 


Residence,  generally. 
Pol.  Code,  §  52. 

Legislation  §  198.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863,  p.  630;  Stats.  1863-64, 
pp.  462,  524),  and  then  read:  "A  person  is  com- 
petent to  act  as  a  juror  if  he  be:  1.  A  citizen  of 
the  United  States,  an  elector  of  the  county,  and 
a  resident  of  the  township  at  least  three  months 
before  being  selected  and  returned;  2.  lu  pos- 
session of  his  natural  faculties  and  not  decrepit; 
3.  Possessed  of  sufficient  knowledge  of  the  lan- 
guage in  which  the  proceedings  of  the  courts  are 
had;  4.  Assessed  on  the  last  assessment-roll  of 
his  county,  on  property  belonging  to  him." 


2.  Amended  by  Code  Amdts.  1875-76,  p.  89, 

inserting,  in  subd.  1.  after  the  word  "county," 
the  words,  in  parentheses,  "(whether  his  name 
be  enrolled  on  the  great  register  of  the  county, 
or  not)." 

3.  Amended  by  Code  Amdts.  1880,  p.  45, 
the  textual  differences  from  the  present  section 
being  noted  infra,  par.   5. 

4.  Amendment  by  Stats.  1901,  p.  121;  un- 
constitutional.     See  note  ante,  §  5. 

5.  Amended  by  Stats.  1915.  p.  826,  (1)  in 
subd.  1,  substituting  "a  resident  of  the  state 
and  of  the  county  or  city  and  county  for  one 
year  immediately   before  being  selected  and  re- 


105 


COMPETENCY    OF   JUROR. 


§199 


turned,"  for  "a  resident  of  the  state  one  year, 
and  of  the  county,  or  city  and  county,  ninety 
days  before  being  selected  and  returned";  (2) 
striking  out  subd.  4,  which  read,  "4.  Assessed  on 
the  last  assessment-roll  of  the  county,  or  city 
and  county,  on  property  belonging  to  him." 

Competency.  This  and  the  next  section 
provide  the  qualifications  of  all  jurors, 
grand  and  trial  alike.  People  v.  Leonard, 
106  Cal.  302,  317;  39  Pac.  617.  Lack  of 
qualification  affects  individual  jurors  only; 
objections  on  that  ground  cannot  be  urged 
to  a  panel.  People  v.  Young,  108  Cal.  8; 
41  Pac.  281;  People  v.  Searcey,  121  Cal.  1; 
41  L.  E.  A.  157;  53  Pac.  359.  In  impanel- 
ing a  jury,  it  is  the  duty  of  the  parties 
to  an  action,  whether  civil  or  criminal,  to 
inquire  first  as  to  the  qualifications  pre- 
scribed by  the  first  and  fourth  subdivisions 
of  this  section;  otherwise  there  is  a  waiver 
of  the  right  to  challenge  for  a  want  of 
such  qualification.  People  v.  Sampo,  17 
Cal.  App.  135;  118  Pac.  957.  It  is  the 
function  of  the  trial  court  to  determine  the 
true  state  of  mind  of  each  member  of  the 
panel,  touching  his  qualifications  to  act. 
People  V.  Loper,  159  Cal.  6;  Ann.  Cas. 
1912B,  1193;  112  Pac.  720. 

Citizenship.  Aliens  are  expressly  pro- 
hibited from  serving  in  the  capacity  of 
jurors.  People  v.  Chung  Lit,  17  Cal.  320; 
People  v.  Chin  Mook  Sow,  51  Cal.  597. 

Residence.  The  juror  must  have  been  a 
resident  of  the  county  for  ninety  days  be- 
fore being  selected  and  returned  (People 
V.  Cochran,  61  Cal.  548) ;  and  the  statute 
formerly  required  that  he  should  be  an 
elector  of  the  county  in  which  he  was  re- 
turned.  Sampson  v.  Schaffer,  3  Cal.  107. 

Natural  capacity.  It  must  be  presumed 
that  the  hearing  of  a  juror  is  normal, 
where  misconduct  of  the  juror  in  listening 
to  the  reading  of  a  newspaper  article  is 
charged.  People  v.  Wong  Loung,  159 
Cal.  520;  114  Pac.  829.  An  objection  to 
the  natural  capacity  of  a  juror,  though  not 
made  upon  his  voir  dire  examination,  is 
not  waived:  he  may  be  excused  whenever 
the  want  of  natural  capacity  appears. 
People  V.  Sampo,  17  Cal.  App.  135;  118 
Pac.  957. 

Knowledge  of  English.  The  juror's 
knowledge  of  the  English  language  must 
be  suflScient  to  enable  him  to  understand 
the  proceedings.  People  v.  Arceo,  32  Cal. 
40. 

Property  qualification.  The  juror  must 
have  been  assessed  on  property  belonging 
to  him:  it  is  not  sufficient  that  he  is  an 
heir  of  a  deceased  person,  who  had  owned 
property  in  the  county  (People  v.  Warner, 
147  Cal.  546;  82  Pac.  196);  but  where  prop- 
erty is  assessed  to  a  partnership,  of  which 
the  juror  is  a  member,  it  is  sufficient.  Peo- 
ple V.  Owens,  123  Cal.  482;  56  Pac.  251.  A 
person  not  assessed  in  the  last  assessment- 
roll    is   not   a   competent   juror.     People  v. 


Warner,  147  Cal.  546;  82  Pac.  196;  Kitts  v, 
Superior  Court,  5  Cal.  App.  462;  90  Pac. 
977.  Lack  of  property  qualification  may 
be  waived,  and  it  is  waived  where  the 
juror  is  accepted  and  sworn  without  objec- 
tion. People  V.  Thompson,  34  Cal.  671; 
People  V.  Mortier,  58  Cal.  262;  People  v. 
Sanford,  43  Cal.  29. 

Mistaken  identity.  A  person  not  sum- 
moned is  not  selected  and  returned  as  re- 
quired by  law,  although  he  bears  the  same 
name  as  a  venireman  whose  name  is  in  the 
box:  he  is  not  a  qualified  juror,  and  may 
be  challenged;  but  it  is  too  late  to  raise  the 
question  after  verdict.  People  v.  Duncan, 
8  Cal.  App.  186,  199;  96  Pac.  414. 

Juror  as  "freeholder."  See  note  Ann.  Cas. 
1913D,  331. 

Constitutionality  of  statute  requiring  juroiB  to 
be  taxpayers.    See  note  32  L.  K.  A.   (N.  S.)   414. 

Waiver  of  property  qualification  of  juror.  See 
note  39  L.  R.  A.   (N.  S.)   967. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  630;  Stats.  1864,  p.  462.  Sampson  v.  Schaflfer, 
3  Cal.  107;  People  v.  Peralta,  4  Cal.  175;  People 
V.  Stonecifer,  6  Cal.  405 ;  People  v.  Chung  Lit, 
17  Cal.  320. 

Subd.  1.  "An  elector  of  the  county,"  etc. 
Sampson  v.  Schaffer,  3  Cal.  107.  "And  a  resi- 
dent." Residence  depends  upon  intention,  as 
well  as  fact,  and  mere  inhabitancy  for  a  short 
period,  against  the  intention  of  acquiring  a  domi- 
cile, would  not  make  a  resident  within  the  mean- 
ing of  the  law.  People  v.  Peralta,  4  Cal.  175.  A 
citizen  of  the  state  who  has  resided  only  fourteen 
days  in  a  county,  and  then  was  absent  several 
months  from  the  state,  with  the  intention  of  re- 
turning to  that  county  as  his  home,  and  does  re- 
turn, and  has  resided  fourteen  days  in  the  county 
since  his  return,  is  qualified  to  act  as  a  juror,  so 
far  as  residence  is  concerned.  If  he  had  resided 
but  one  day,  with  the  intention,  in  good  faith,  of 
making  the  county  his  home,  and  then  left,  with 
the  intention  of  returning  (animus  revertendi), 
and  actually  did  return,  his  residence  would  have 
dated  from  the  day  of  his  first  settlement  or 
arrival  in  the  county,  and  not  from  the  date  of 
his  return.  People  v.  Stonecifer,  6  Cal.  410.  On 
a  motion  for  a  new  trial,  plaintiff's  attorney  (the 
client  being  absent)  made  atTidavit  that  since  the 
trial  he  had  discovered  that  M.,  one  of  the  jurors, 
was  incompetent,  because  a  resident  of  the  state 
only  three  months.  M.  also  made  affidavit  that 
he  was  a  resident  of  the  state  for  that  time  only. 
Held:  that  M.  was  a  competent  juror.  Thomp- 
son V.  Paige,  16  Cal.  78.  In  a  criminal  case,  the 
objection  that  one  of  the  jurors  was  an  alien,  can- 
not be  taken  for  the  first  time  upon  the  motion 
for  a  new  trial,  not  even  if  the  defendant  was 
not  aware  of  the  juror's  alienage  at  the  time  of 
the  verdict.  The  defendant  might  have  examined 
the  juror  on  this  subject  and  exercised  the  right 
of  challenge  before  the  juror  was  sworn.  People 
V.  Chung  Lit,  17  Cal.  322.  See  also  People  v. 
Stonecifer,   6  Cal.  405. 

Subd.  2.  The  words  "and  not  decrepit"  are 
added  to  the  law  as  it  existed  prior  to  the  pas- 
sage of  this  code.  Want  of  hearing,  or  of  sight, 
suffering  from  physical  disease,  which  prevents 
him  from  giving  attention  to  the  proceedings  of 
the  court,  are  enough  to  render  a  juror  disquali- 
fied. Montague  v.  Commonwealth,  10  Gratt.  (Va.) 
767:    People  v.  Arceo,   32   Cal.   45. 

Subd.  3.  See  the  case  of  People  v.  Arceo,  32 
Cal.   40. 

Subd.  4.  A  person  otherwise  qualified  is  not 
a  competent  juror,  unless  he  has  been  assessed 
on  the  last  assessment-roll  of  his  county,  on  prop- 
erty belonging  to  him.  People  v.  Thompson,  34 
Cal.    672. 


§  199.     Who  not  competent  to  act  as  juror.     A  person  is  not  competent 
to  act  as  a  juror: 


200  JUKORS. 


106 


1.  Who  does  not  possess  the  qualifications  prescribed  hy  the  preceding 
section ; 

2.  Who  has  been  convicted  of  malfeasance  in  office  or  any  felony  or  other 
high  crime ;  or 

3.  Who  has  been  discharged  as  a  juror  by  any  court  of  record  in  this  state 
within  a  year,  as  provided  in  section  two  hundred  of  this  code,  or  who  has 
been  drawn  as  a  grand  juror  in  any  such  court  and  served  as  such  within  a 
year  and  been  discharged. 

4.  A  person  who  is  serving  as  a  grand  juror  in  any  court  of  record  in  this 
state  is  not  competent  to  act  as  a  trial  juror  in  any  such  court. 

And  a  person  who  is  serving  as  a  trial  juror  in  any  court  of  this  state  is 
not  competent  to  act  as  a  grand  juror  in  any  such  court. 

Legislation  §  199.  1.  Enacted  March  11,  1873  who  has  been  discharged  within  a  year,  is 
(based  on  Stats.   1863,  p.   630),   and  then  read:        j^^^^    rendered    incompetent    to    sit    upon    a 

"A   person   is    not    competent   to    act    as    a   juror:         „_„„j    -;,,^,r    /a,,,  i;„„t; ^-e   T>,^^f     t  crn    r^^^ 

1.  Who  does  not  possess  the  qualifications  pre-  f^^^^^J^^^  (Application  of  Luef,  150  Cal. 
scribed  by  the  preceding  section;  2.  Who  has  €bo;  89  Tac.  605;  People  V.  Quijada,  lo4 
been  convicted  of  a  felony  or  misdemeanor,  in-  Cal.  243;  97  Pac.  689;  People  v.  Carson, 
"ti^inTendedTy" c'ode  Amdts.  1880,  p.  45.  If  Cal.  164;_  99  Pac._  970) ;  and  the  valid- 
changing  subd.  2  to  read  as  now  printed,  except  ity  01  an  indictment  IS  not  aftected  by  the 
that,  then  ending  the  section,  it  did  not  have,  at  fact  that  a  member  of  the  Hiand  jury  was 
end,  the  word  "or."  ■  disqualified    because    he    had    served    and 

3.  Amendment   by   Stats.    1901,   p.    122,    un-        ,      ^     -,.     ,  i  •  •       ,. 
constitutional.     See  note  ante,  §  5.                    .           been  discharged  as  a  juror  m  the  superior 

4.  Amended    by    Stats.    1905,    p.    70,    adding        court  within  a  vear.     Application  of  Euef, 
BUbds    3   and  4,   and  the  last  paragraph ;    subd    3         -^^q    q^j_    qq-      gg   ^^^     gQg      j^-^^g   ^^    g         . 
then  having  the  words     section  two  hundred  and  .       ^        j.rriiA  /icoaat)         nnn 
three,"     a     manifest     error,     corrected     iu     1909.        rior  Court,  5  Cal.  App.  462;  90  Pac.  977. 
Quaere  as  to  the  "hinging"  of  subd.  4  on  the  in-             Competency    of     jurors    who     have    previously 
troductory  paragrapn.         .,  „„„         „.c:    phnnHtiP-        served  in  cause  involving  same  or  similar  facts. 

5.  Amended  by  btats.   190»,  c.  o4t>,  cnanging  „„.„„   a    \„„    n„o    oki;.   rq  t     t?     a     a7i 

the  section  number  in  subd.    3;    the   act  to  take        See  notes  4  Ann.  Cas.  965,  68  L.  R.  A.  871. 
effect  June  1,  1909.  CODE  COIOIISSIONERS' NOTE.     Stats.  1863, 

Service  within  a  year.     A  trial  juror,      p-  630. 

§  200.  Who  exempt  from  jury  duty.  A  person  is  exempt  from  liability 
to  act  as  a  juror  if  he  be : 

1.  A  judicial,  civil,  or  military  officer  of  the  United  States,  or  of  this  state ; 

2.  A  person  holding  a  county,  city  and  county,  city,  town  or  township 
office; 

3.  An  attorney  at  law,  or  the  clerk,  secretary  or  stenographer  of  an  at- 
torney at  law ; 

4.  A  minister  of  the  gospel,  or  a  priest  of  any  denomination  following  his 
profession ; 

5.  A  teacher  in  a  university,  college,  academy,  or  school ; 

6.  A  practicing  physician,  or  druggist,  actually  engaged  in  the  business  of 
dispensing  medicines ; 

7.  An  officer,  keeper  or  attendant  of  an  almshouse,  hospital,  asylum,  or 
other  charitable  institution ; 

8.  Engaged  in  the  performance  of  duty  as  officer  or  attendant  of  the  state 
prison  or  of  a  county  jail; 

9.  Employed  on  board  of  a  vessel  navigating  the  waters  of  this  state; 

10.  An  express  agent,  mail-carrier,  or  a  superintendent,  employee,  or 
operator  of  a  telegraph  or  telephone  company  doing  a  general  telegraph  or 
telephone  business  in  this  state,  or  keeper  of  a  public  ferry  or  toll-gate ; 

11.  An  active  member  of  the  national  guard  of  California,  or  an  active 
member  of  a  paid  fire  department  of  any  city  and  county,  city,  town,  or 
village  in  this  state,  or  an  exempt  member  of  a  duly  authorized  fire  company; 


107 


WHEN   JUROR    MAY   BE   EXCUSED. 


§201 


12.  A  superintendent,  engineer,  fireman,  brakenian,  motorman,  or  conduc- 
tor on  a  railroad ;  or, 

13.  A  person  drawn  as  a  juror  in  any  court  of  record  in  this  state,  upon 
a  regular  panel,  who  has  served  as  such  within  a  year  or  a  person  drawn 
or  summoned  as  a  juror  in  any  such  court  who  has  been  discharged  as  a 
juror  within  a  year  as  hereinafter  provided ;  provided,  however,  that  in 
counties  having  less  than  five  thousand  population  the  exemption  provided 
by  this  subdivision  shall  not  apply. 


Exemption,  how  claimed.    Post,  §  201. 

Subd.  11.  Exempt  fireman.  Pol.  Code,  §§  3337- 
3339. 

Members  of  national  guard.  See  Pol.  Code, 
§  2098. 

Legislation  §  200.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1853,  p.  59;  Stats.  1862,  p.  375; 
Stats.  1863,  p.  630;  Stats.  1865-66,  p.  30),  and 
then  read:  "A  person  is  exempt  from  liability  to 
act  as  a  juror  if  he  be:  1.  A  judicial,  civil,  or 
military  officer  of  the  United  States,  or  of  the 
state  of  California;  2.  A  person  holding  a  county 
office;  3.  An  attorney  and  counselor  at  law;  4. 
A  minister  of  the  gospel  or  a  priest  of  any  de- 
nomination; 5.  A  teacher  in  a  college,  academy, 
or  school;  6.  A  practicing  physician;  7.  An  offi- 
cer, keeper,  or  attendant  of  an  almshouse,  hos- 
pital, asylum,  or  other  charitable  institution;  8. 
Engaged  in  the  performance  of  duty  as  officer 
or  attendant  of  a  county  jail  or  the  state  prison; 
9.  Employed  on  board  of  a  vessel  navigating  the 
waters  of  this  state;  10.  An  express  agent,  mail- 
carrier,  telegraph-operator,  or  keeper  of  a  public 
ferry  or  toll-gate;  11.  An  active  member  of  the 
fire  department  of  any  city,  town,  or  village  in 
this  state,  or  an  exempt  member  by  reason  of 
five  years  active  service;  12.  A  superintendent, 
engineer,  or  conductor  on  a  railroad." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  285, 
(1)  in  subd.  3,  changing  "An  attorney"  to  "A 
practicing  attorney";  (2)  adding,  at  the  end  of 
subd.  4,  the  words  "following  his  profession" ; 
(3)  adding,  at  the  end  of  subd.  6,  the  words  "or 
dentist";  (4)  in  subd.  10,  substituting  for  "tele- 
graph-operator" the  words  "superintendent,  em- 
ployee, or  operator  of  a  telegraph  line  doing  a 
general  telegraph  business  in  this  state"  ;  and 
(5)  adding  subd.  13,  "An  editor  or  local  reporter 
of  a  newspaper." 

3.   Amended  by  Code  Amdts.  1S75-76,  p.  86, 

(1)  changing  subd.    3   to   "An   attorney   at   law"; 

(2)  striking  out  the  words  "or  dentist"  from  end 
of  subd.  6;  (3)  changing  subd.  11  to  read,  "An 
active  member  of  a  fire  department  of  an>  city, 
town,  or  village  in  the  state,  or  an  exempt  mem- 
ber of  a  duly  organized  fire  company,  who  has 
become  exempt  from  jury  duty  before  the  passage 
of  this  act";  (4)  changing  subd.  13  to  read,  "A 
person    who    served    as    a    juror    in    any    court    of 


record  in  this  state,  for  a  term  thereof  which  has 
expired  within  a  year;  but  this  exemption  shall 
not  extend  to  a  person  who  is  summoned  as  a 
juror  for  the  trial  of  a  particular  case." 

4.  Amended  by  Code  Amdts.  1880,  p.  45,  (1) 
at  end  of  subd.  1,  changing  "the  state  of  Califor- 
nia    to  ''this  state";    (2)   changing  subd.  2,  after 

county,  to  read,  "city  and  county,  or  township 
office';  (3)  in  subd.  5,  adding  "university"  be- 
fore "college" ;  (4)  adding,  after  "physician,"  in 
subd.  6,  "or  druggist,  actually  engaged  in  the 
business  of  dispensing  medicines";  (5)  changing, 
after  "attendant  of,"  in  subd.  8,  to  read,  "the 
state  prison,  or  of  a  county  jail,  or  the  state 
prison";  (6)  changing  subd.  11  to  read,  "An 
active  member  of  the  national  guard  of  Cali- 
fornia, or  an  active  member  of  a  fire  department 
of  any  city  and  county,  city,  town,  or  village  in 
this  state,  or  an  exempt  member  of  a  duly  organ- 
ized fire  company  who  had  become  exempt  from 
jury  duty  before  the  passage  of  this  act"  ;  and 
(7)  changing  subd.  13  to  read:  "A  person  drawn 
as  a  juror  in  any  court  of  record  in  this  state, 
upon  a  regular  panel,  who  has  served  as  such 
within  a  year;  but  this  exemption  shall  not  ex- 
tend to  a  person  who  is  summoned  as  a  juror 
for  the  trial  of  a  particular  case." 

5.  Amended  by  Stats.  1897,  p.  185,  striking 
from  end  of  subd.  11,  "who  had  become  exempt 
from  jury  duty   before   the   passage   of   this   act." 

6.  Amended  by  Stats.  1905,  p.  71,  the  text 
then  being  the  same  as  at  present  (1915),  ex- 
cept for  the  subsequent  changes  noted. 

7.  Amended  by  Stats.  1907,  p.  885,  (1)  in 
subd.  11,  substituting  "authorized"  for  "organ- 
ized," before  "fire  company";  (2)  in  subd.-  13, 
adding  the  proviso. 

8.  Amended  by  Statsi.  1915,  p.  1080,  adding 
"fireman"   in  subd.   12. 

Exemption.  Exemption  is  a  privilege, 
and  not  a  ground  of  challenge.  People  v. 
Owens,  123  Cal.  482;  56  Pae.  251. 

Constitutionality  of  laws  exempting  certain 
classes  of  persons.      See  note  5  Ann.  Cas.   783. 

CODE  COIMMISSIONEES'  NOTE.  Stats.  1863, 
p.  630;  Stats.  1853,  p.  59;  Stats.  1866,  p.  30; 
Stats.  1862,  p.  362.     Subdivision  12,  is  new. 


§  201.  Who  may  be  excused.  A  juror  shall  not  be  excused  by  a  court 
for  slight  or  trivial  cause,  or  for  hardship  or  inconvenience  to  his  business, 
but  only  when  material  injury  or  destruction  to  his  property,  or  of  property 
intrusted  to  him,  is  threatened,  or  when  his  own  health,  or  the  sickness  or 
death  of  a  member  of  his  family,  requires  his  absence. 


Legislation  §  201.  1.  Enacted  March  11,  1873; 
based  on  Stats.  1863,  p.  630. 

3.  Amended  by  Code  Amdts.  1880,  p.  45, 
(1)  changing  the  first  words  of  the  section  from 
"A  juror  cannot  be  excused  by  the  court";  (2) 
omitting  a  comma  after  "hardship";  and  (3) 
changing  "or  of  property  intrusted"  from  "or 
that  of  the  public  intrusted." 

Court  may  excuse.  The  court  may,  of  its 
own  motion,  for  any  good  reason,  exeupe  a 
qualified  juror  from  sitting  on  the  panel  in 
a  criminal  case.  People  v.  Arceo,  32  Cal. 
40. 


Rejecting  or  excusing  juror  without  challenge. 
See  note  1  Am.  St.  Rep.  519. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  630.  It  has  been  held  that  the  court  may, 
for  a  good  reason,  on  its  own  motion,  excuse  or 
set  aside  a  juror  who  is  free  from  any  statutory 
disability,  and  possesses  the  legal  qualifications 
of  a  juror.  Montague  v.  Commonwealth,  10  Gratt. 
(Va.)  767.  And  "even  if  a  juror  has  been  set 
aside  by  the  court  for  an  insufficient  cause,  it 
is  not  a  matter  of  error,  if  the  trial  has  been 
bv  a  jury  duly  sworn  and  impaneled  and  above 
all  exceptions.  Neither  the  prisoner  nor  the  gov- 
erament  in  such  a  case  has  suffered  injury." 
United  States  v.  Cornell,  2  Mason,  91 ;  Fed.  Cas. 


§§202,204  JURORS.  108 

No.  14868;  Tatum  v.  Young,  1  Port.   (Ala.)   298;  and  without  a  reasonable  ground  upon  which  to 

Commonwealth  v.  Hayden,  4  Gray,  19.      Where  a  base  its  actions,  perhaps  it  might  be  error.    See 

court  willfully  and  arbitrarily  rejects  a  juror  not  People  v.  Arceo,   32   Cal.  40. 
disqualified   under   the   provisions   of   the    statute, 

§  202.  Affidavit  of  claim  to  exemption.  If  a  person,  exempt  from  liability 
to  act  as  a  juror  as  provided  in  section  tAvo  hundred,  be  summoned  as  a 
juror,  he  may  make  and  transmit  his  affidavit  to  the  clerk  of  the  court  for 
which  he  is  summoned,  stating  his  office,  occupation,  or  employment ;  and 
such  affidavit  shall  be  delivered  by  the  clerk  to  the  judge  of  the  court  where 
the  name  of  such  person  is  called,  and  if  sufficient  in  substance,  shall  be 
received  as  an  excuse  for  non-attendance  in  person.  The  affidavit  shall 
then  be  filed  by  the  clerk. 

Legislation  §  202.  1.  Added  by  Code  A.mdts.  (1)  changing  "If  a"  from  "If  any,"  in  first  line; 
1873-74,  p.  286.  (2)   changing  "where"  from  "when,"   before  "tha 

2.  Amended    by    Code    Amdts.    1880,    p.    46,        name." 

ARTICLE  III. 
OF  SELECTING  AND  EETURNING  JURORS  FOR  COURTS  OF  RECORD. 

§  204.     Jury-lists,  by  whom  and  when  to  be  made.  §  208.  Certified    list    to    be    filed    with    clerk    of 
§  205.      Selection   and  listing  of  persons  suitable  superior  court. 

and  competent  to  serve  as  jurors.  §  209.  Duty  of  clerk.      Jury-boxes. 

§206.      Lists  to  contain  how  many  names.  §210.  Regular  jurors  to  serve  one  year. 

I  207.      Person  who  served  as  jllror  durLng  preced-  §211.  Jurors  to  be  drawn  from  boxes. 

ing  year  not  to  be  selected.    [Repealed.] 

§  204.  Jury-lists,  by  whom  and  when  to  be  made.  In  the  month  of  Jan- 
uary in  each  year  it  shall  be  the  duty  of  the  superior  court  in  each  of  the 
counties  of  this  state  to  make  an  order  designating  the  estimated  number 
of  grand  jurors,  and  also  the  number  of  trial  jurors,  that  will,  in  the  opinion 
of  said  court,  be  required  for  the  transaction  of  the  business  of  the  court, 
and  the  trial  of  causes  therein,  during  the  ensuing  year;  and  immediately 
after  said  order  designating  the  estimated  number  of  grand  jurors  shall  be 
made,  the  court  shall  select  and  list  the  grand  jurors  required  by  said  order 
to  serve  as  grand  jurors  in  said  superior  court  during  the  ensuing  year,  or 
until  new  lists  of  jurors  shall  be  provided,  and  said  selections  and  listings 
shall  be  made  of  persons  suitable  and  competent  to  serve  as  jurors,  as  set 
forth  and  required  in  sections  two  hundred  and  five  and  two  hundred  and 
six  of  this  code,  which  list  of  persons  so  selected  shall  at  once  be  placed  in 
the  possession  of  the  county  clerk ;  and  immediately  after  said  order  desig- 
nating the  estimated  number  of  trial  jurors  shall  be  made,  the  board  of 
supervisors  shall  select,  as  provided  in  sections  two  hundred  and  five  and 
two  hundred  and  six  of  this  code,  a  list  of  persons  to  serve  as  trial  jurors 
in  the  superior  court  of  said  county  during  the  ensuing  year,  or  until  a  new 
list  of  jurors  shall  be  provided.  In  counties,  and  cities  and  counties  having 
a  population  of  one  hundred  thousand  inhabitants  or  over,  such  selection 
shall  be  made  by  a  majority  of  the  judges  of  the  superior  courts. 

liegislation  §  204.     1.  Enacted  March  11,  1872,  place  designated   by   the  county  judge,   and  make 

and  then  read:  "The  board  of  suprrvisors  of  each  a  list  of  persons  to  serve  as  jurors  in  the  courts 

county    must,    at    their    first    regular    meeting    in  of   record,   held  in   said   city   and   county,    for   the 

each  year,  or  at  any  other  meeting  if  neglected  at  ensuing   year.      And   the   board   of   supervisors   of 

the  first,  make  a  list  of  persons  to  serve  as  jurors  each   of   the  other  counties   of   the   state   must,    at 

in  courts  of  record  for  the  ensuing  year."  its  first  regular  meeting  in   each  year,    or  at   any 

2.   Amended  by  Code  Amdts.  1873-74.  p.  286,  other   mpcting,    if   neglected   at   the   first,    make    a 

to  read:    "The  district  judges  of  the   several  dis-  list   of   persons    to   serve   as   jurors   in   the   courts 

tricts   within   or   embracing  part   of   the   city    and  of  record  in  their  respective  counties  until  a  new 

county    of    San   Francisco,    and    the    county   judge  list  is  provided." 

of    the    county,    and    the    judge    of    the    municipal  3.   Amended  by  Code  Amdts.   1875-76,  p.  86, 

criminal  court  of  San  Francisco,  or  a  majority  of  to     read:     "The     district    judges     of    the     several 

such   judges,   must  meet   in   San  Francisco   in  the  judicial  districts  within  or  embracing  part  of  the 

month  of  December  of  each  year,  at  the  time  and  city  and  county  of  San  Francisco,  and  the  county 


109 


WHO   COMPETENT   TO  SERVE  AS  JURORS. 


205 


judge,  probate  judge,  and  judge  of  the  municipal 
criminal  court  of  said  city  and  county,  or  a 
majority  of  such  judges,  must  meet  in  said  city 
and  county  in  the  month  of  December  of  each 
year,  at  the  time  and  place  designated  by  the 
county  judge,  and  select  a  list  of  persons  to  serv^e 
as  grand  jurors  in  the  county  court,  and  another 
list  of  persons  to  serve  as  trial  jurors  in  the 
courts  of  record  held  in  said  city  and  county  for 
the  ensuing  year.  And  the  board  of  supervisors 
of  each  of  the  other  counties  of  the  state  must, 
at  its  first  regular  meeting  in  each  year,  or  at 
any  other  meeting,  if  neglected  at  the  first,  make 
a  list  of  persons  to  serve  as  jurors  in  the  courts 
of  record,  in  their  respective  counties,  until  a 
new  list  is  provided." 

4.  Amended  by  Code  Amdts.  1880,  p.  46,  to 
read:  "Within  thirty  days  after  the  passage  of 
this  act  the  superior  court  in  each  of  the  coun- 
ties of  this  state  shall  make  an  order  designating 
the  number  of  grand  jurors,  and  also  the  number 
of  trial  jurors  that,  in  the  opinion  of  said  court, 
will  be  required  for  the  transaction  of  the  busi- 
ness of  said  court  during  the  year  ending  on  the 
first  day  of  January,  eighteen  hundred  and  eighty- 
one ;  and  thereafter,  in  the  month  of  January  in 
each  year,  it  shall  be  the  duty  of  said  court  to 
make  an  order  designating  the  estimated  number 
of  grand  jurors,  and  also  the  number  of  trial 
jurors,  that  will,  in  the  opinion  of  said  court,  be 
required  for  the  transaction  of  the  business  of 
the  court,  and  the  court  and  the  trial  of  causes 
therein,  during  the  ensuing  year.  And  immedi- 
ately after  said  order  shall  be  made,  the  board  of 
supervisors  shall  select,  as  provided  in  the  next 
section,  a  list  of  persons  to  serve  as  grand 
jurors  and  trial  jurors  in  the  superior  court  of 
said  county  during  the  ensuing  year,  or  until  a 
new  list  of  jurors  shall  be  provided.  In  cities 
and  counties  having  over  one  hundred  thousand 
inhabitants  such  selection  shall  be  made  by  the 
judges  of  the  superior  court." 

5.  Amended  by  Stats.  1881,  p.  69,  to  read: 
"In  the  month  of  January  in  each  year,  it  shall 
be  the  duty  of  the  superior  court  in  each  of  tha 
counties  of  this  state  to  make  an  order  designat- 
ing the  estimated  number  of  grand  jurors,  and 
also  the  number  of  trial  jurors,  that  will,  in  the 
opinion  of  said  court,  be  required  for  the  trans- 
action of  the  business  of  the  court,  and  the  trial 
of  causes  therein,  during  the  ensuing  year;  and 
immediately  after  said  order  shall  be  made,  the 
board  of  supervisors  shall  select,  as  provided  in 
the  next  section,  a  list  of  persons  to  serve  as 
grand  jurors,  and  also  a  list  of  persons  to  serve 
as  trial  jurors,  in  the  superior  court  of  said 
county,  during  the  ensuing  year,  or  until  new 
lists  of  jurors  shall  be  provided.  In  cities  and 
counties  having  over  one  hundred  thousand  in- 
habitants, such  selection  shall  be  made  by  the 
judges  of  the  superior  court,  or  a  majority  of 
them  if  all  do  not  attend." 

6.  Amended  by  Stats.  1893,  p.  297. 

Designating  number  of  jurors.  There  is 
no  distinction,  in  the  matter  of  selection 


of  grand  jurors  and  trial  jurors:  the 
names  of  all  the  jurors  to  be  selected  are 
placed  in  the  same  box,  and  the  court 
designates  separately  the  number  of  each 
class.  People  v.  Crowey,  56  Cal.  36.  Until 
the  new  list  has  been  certified  and  filed 
with  the  clerk,  a  trial  jury  may  be  selected 
from  the  number  returned  for  the  preced- 
ing year.  People  v.  Richards,  1  Cal.  App. 
566;  82  Pac.  691. 

Order  designating  number.  The  order 
designating  the  number  of  jurors  for  the 
ensuing  year  need  not  be  signed;  being 
made  in  open  court,  its  entry  in  the  min- 
utes is  suflScient.  People  v.  Baldwin,  117 
Cal.  244;  49  Pac.  186. 

Selection  by  board  of  supervisors.  A 
failure  to  show  the  selection,  as  the  jury 
was  in  fact  selected,  or  the  selection  of 
fewer  than  required  by  order  of  the  court, 
is  not  a  material  departure  from  the  forms 
prescribed  in  respect  to  the  drawing  of  a 
jury.  People  v.  Sowell,  145  Cal.  292;  78 
Pac.  717.  The  board  may  select  the  jurors 
at  either  a  regular  or  an  adjourned  meet- 
ing, or  at  a  special  meeting  called  for  that 
purpose.  People  v.  Baldwin,  117  Cal.  244; 
49  Pac.  186. 

Selection  by  judges.  In  cities  and  coun- 
ties having  a  population  of  more  than  one 
hundred  thousand,  jurors  are  selected  in 
January  by  the  judges  of  the  superior 
court,  instead  of  by  the  supervisors. 
Bruner  v.  Superior  Court,  92  Cal.  239;  28 
Pac.  341;  People  v.  Durrant,  116  Cal.  179; 
48  Pac.  75.  Where  the  minutes  kept  by 
the  secretary  of  the  judges  are  incomplete, 
and  do  not  show  the  true  facts  as  to  the 
selection  of  jurors,  the  presiding  judge 
may  order  the  minutes  amended,  so  that 
they  may  accurately  show  what  occurred 
(People  V,  Durrant,  116  Cal.  179;  48  Pac. 
75;  People  v.  Sowell,  145  Cal.  292;  78 
Pac.  717),  under  the  inherent  power  of  a 
court  to  amend  the  record  of  its  transac- 
tions and  proceedings,  as  to  clerical  mat- 
ters, so  as  to  make  it  speak  the  truth. 
People  V.  Durrant,  116  Cal.  179;  48  Pac. 
75;  Kaufman  v.  Shain,  111  Cal.  16;  52  Am. 
St.  Rep.  139;  43  Pac.  393. 

Obtaining  of  jurors.    See  note  53  Am.  Dec.  101. 

§  205.  Selection  and  listing-  of  persons  suitable  and  competent  to  serve 
as  jurors.  The  selections  and  listings  shall  be  made  of  persons  suitable  and 
competent  to  serve  as  jurors,  and  in  making  such  selections  they  shall  take 
the  names  of  such  only  as  are  not  exempt  from  serving,  who  are  in  the  pos- 
session of  their  natural  faculties,  and  not  infirm  or  decrepit,  of  fair  charac- 
ter and  approved  integrity,  and  of  sound  judgment. 

Legislation  S  205.  1.  Enacted  March  11,  1872, 
and  then  read:  "They  must  proceed  to  select  and 
list  from  those  assessed  on  the  assessment-roll 
of  the  previous  year,  suitable  persons,  competent 
to  serve  as  jurors;  and  in  making  such  selection, 
they  must  take  the  names  of  such  only  as  are 
not  exempt  from  serving,  who  are  in  possession 
of  their  natural  faculties,  and  not  infirm  or  de- 
crepit, of  fair  character,  of  approved  integrity, 
and  of  sound  judgment." 

2.  Amended  by  Code  Amdts.  1880,  p.  46,  sub- 


stituting "last  preceding  assessment-roll  of  such 
county,  or  city  and  county,"  for  "assessment-roll 
of  the  previous  year." 

3.  Amended  by  Stats.  1881,  p.  70,  the  first 
sentence  (stricken  out  in  189.3),  reading,  "They 
shall  proceed  to  select  and  list  the  grand  jurors 
required  by  said  order  of  the  superior  court, 
and  then  select  and  list  the  trial  jurors  required 
by  said  order"  ;  the  remainder  of  the  section  be- 
ing the  same  as  the  present  te.xt,  except  for  the 
subsequent  changes,  noted  infra. 


§§  206-208 


JURORS. 


110 


4.  Amended  by  Stats.  1893,  p.  298. 

5.  Amended  by  Stats.  1915,  p.  826,  striking 
out,  after  "serve  as  jurors,"  the  clause,  "who 
are  assessed  on  the  last  preceding  assessment- 
roll  of  such  county,  or  city  and  county." 

Effect  of   summoning  persons   on  panel 


challenged.  That  a  few  persons  summoned 
on  a  second  venire  of  jurors  had  also  been 
summoned  on  the  first,  is  no  basis  for  a 
challenge  to  the  entire  panel.  People  v. 
Vincent,  95  Cal.  425;  30  Pac.  581. 


§  206.  Lists  to  contain  how  many  names.  The  lists  of  jurors,  to  be  made 
as  provided  in  the  preceding  section,  shall  contain  the  number  of  persons 
which  shall  have  been  designated  by  the  court  in  its  order.  The  names  for 
such  lists  shall  be  selected  from  the  different  wards  or  townships  of  the  re- 
spective counties  in  proportion  to  the  number  of  inhabitants  therein,  as 
nearly  as  the  same  can  be  estimated  by  the  persons  making  said  lists ;  and 
said  lists  shall  be  kept  separate  and  distinct  one  from  the  other. 

except  for  an  abuse  of  discretion.    People 
V.  Danford,  14  Cal.  App.  442;  112  Pac.  474. 


Legislation  §  206.  1.  Enacted  March  11,  1873, 
and  then  read:  "Such  lists  must  contain  not  less 
than  one  for  every  hundred  inhabitants  of  each 
township  or  vpard,  having  regard  to  the  popula- 
tion of  the  county,  so  that  the  whole  number  of 
jurors  selected  in  the  county  shall  amount,  at 
least,  to  one  hundred,  and  not  exceed  one  thou- 
sand." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  87, 
to  read:  "The  lists  to  be  made  by  the  board  of 
supervisors  shall  contain  not  less  than  one  hun- 
dred names  and  not  more  than  one  thousand 
names,  and  the  grand-jury  list  for  the  city  and 
county  of  San  Francisco  shall  contain  not  less 
than  one  hundred  and  fifty  names  and  not  more 
than  one  hundred  and  eighty  names,  and  the 
trial-jury  list  for  said  city  and  county  shall  con- 
tain not  less  than  eight  hundred  names  and  not 
more  than  twelve  hundred  names;  and  within  the 
limits  above  prescribed,  the  said  lists  shall  con- 
tain the  names  of  as  many  persons  as  will,  in  the 
judgment  of  the  judges,  or  the  board  of  super- 
visors, be  required  as  jurors  in  the  county  during 
the  year  next  ensuing.  The  names  for  all  such 
lists  shall  be  selected  from  the  different  wards 
or  townships  of  the  respective  counties,  in  pro- 
portion to  the  number  of  inhabitants  therein,  as 
nearly  as  the  same  can  be  estimated  by  the  per- 
sons making  such  lists." 

3.  Amended  by  Code  Amdts.  1880,  p.  46,  to 
read:  "The  list  to  be  made  shall  contain  the 
number  of  persons  which  shall  have  been  desig- 
nated by  the  court.  The  names  for  such  list 
shall  be  selected  from  the  different  wards  or  town- 
ships of  the  respective  counties  in  proportion  to 
the  number  of  inhabitants  therein,  as  nearly  as 
the  same  can  be  estimated  by  the  persons  making 
Buch  list." 

4.  Amended  by  Stats.  1881,  p.  70. 

Construction  of  section.  The  provisions 
of  this  section  are  directory,  and  the  ac- 
tion of   the  judges  will  not  be   disturbed. 


Number  designated.  Where  the  court 
orders  a  number  of  jurors  to  be  drawn, 
but,  through  inadvertence  or  mistake,  an 
omission  to  draw  two  of  the  numbers  on 
the  list  does  not  constitute  a  material  and 
substantial  departure  from  the  law.  Peo- 
ple V.  Sowell,  145  Cal.  292;  78  Pac.  717. 
The  supervisors  are  at  liberty  to  select, 
from  the  names  left  in  the  box  at  the  end 
of  the  year,  the  names  of  such  persons 
as  possess  the  necessary  qualifications  of 
jurors,  and  who  have  not  served  the  previ- 
ous year,  and  make  them  part  of  the  list 
for  the  current  year.  People  v.  Eodley,  131 
Cal.  240;  63  Pac.  351;  People  v.  Eichards, 
1  Cal.  App.  566;  82  Pac.  691. 

Proportionate  selection.  The  list  is  to  be 
composed  of  names  of  persons  from  wards 
or  townships  in  proportion  to  the  inhabi- 
tants, but,  in  the  absence  of  a  showing  to 
the  contrary,  it  will  be  presumed,  where 
none  are  selected  from  a  certain  township, 
that  there  are  no  qualified  jurors  therein. 
People  V.  Sowell,  145  Cal.  292;  78  Pac.  717. 
The  population  may  be  estimated  from  the 
number  of  votes  cast.  People  v.  Eodley, 
131  Cal.  240;  63  Pac.  351. 

List  to  be  kept  separate  and  distinct. 
A  failure  to  keep  a  separate  list  of  jurors 
selected  from  each  township  is  not  a  mate- 
rial departure  from  the  law.  People  v. 
Sowell,  145  Cal.  292;  78  Pac.  717. 

§  207.  [Person  who  served  as  juror  during  preceding  year  not  to  be 
selected.     Repealed.] 

Legislation  §  207.    1.  Enacted  March  11,  1873. 
3.   Repealed  by  Code  Amdts.   1875-76,  p.  87. 

§  208.  Certified  list  to  be  filed  with  clerk  of  superior  court.  A  certified 
list  of  the  persons  selected  to  serve  as  trial  jurors  shall  at  once  be  placed 
in  the  possession  of  and  filed  with  the  clerk  of  the  superior  court. 

Certification  of  list.  Where  the  list  has 
been   regularly   drawn   under  the   order   of 


Legislation  S  208.  1.  Enacted  March  11,  1873, 
and  then  read:  "Certified  lists  of  the  persons 
selected  to  serve  as  jurors  must  at  once  be  placed 
in  the  possession  of  the  county  clerk." 

3.  Amended  by  Code  Amdts.  IS'SO,  p.  46, 
changing  "must"  to  "shall." 

3.  Amended  by  Stats.  1881,  p.  70,  to  read: 
"Certified  lists  of  the  persons  so  selected  to  serve 
as  grand  jurors  and  as  trial  jurors  shall  at  once 
be  placed  in  possession  of  th"  county  clerk." 

4.  Amended  by  Stats.  1S03,  p.  298. 


the  court,  and  the  clerk  of  the  board  of 
supervisors  is  the  same  person  as  the  clerk 
of  the  superior  court,  it  is  unnecessary  to 
certify  to  the  list;  the  clerk  may,  by  tes- 
timony, identify  the  list  at  the  time  of 
trial.  People  v.' Young,  108  Cal.  8:  41  Pac. 
281. 


Ill 


DUTY    OF   CLERK — JURORS  TO    BE  DRAWN   FROM   BOXES,       §§  209-211 


§209.  Duty  of  clerk.  Jury-boxes.  On  receiving  such  lists  the  county 
clerk  shall  file  the  same  in  his  office,  and  write  down  the  names  contained 
thereon  on  separate  pieces  of  paper,  of  the  same  size  and  appearance,  and 
fold  each  piece  so  as  to  conceal  the  name  thereon.  He  shall  deposit  the 
pieces  of  paper  having  on  them  the  names  of  the  persons  selected  to  serve 
as  grand  jurors  in  a  box  to  be  called  the  "grand-jury  box,"  and  those  having 
on  them  the  names  of  the  persons  selected  to  serve  as  trial  jurors  in  a  box 
to  be  called  the  ''trial-jury  box." 


Legislation  §  209.  1.  Enacted  March  11,  1873, 
and  then  read:  "On  receiving  such  lists,  the  clerk 
must  file  the  same  in  his  office,  and  write  down 
the  names  contained  therein  on  separate  pieces 
of  paper,  of  the  same  size  and  appearance,  and 
fold  each  piece  so  as  to  conceal  the  name  thereon, 
and  deposit  them  in  a  box  to  be  called  the  'jury- 
box.'  " 

3.  Amended  by  Code  Amdts.  1875-76,  p.  87, 
to  read:  "On  receiving  such  lists,  the  clerk  must 
file  the  same  in  his  office,  and  write  down  the 
names  contained  therein  on  separate  pieces  of 
paper,  of  the  same  size  and  appearance,  and  fold 
each  piece  so  as  to  conceal  the  name  thereon; 
and,   in  the  city  and  county  of  San  Francisco,  he 


shall  deposit  the  pieces  having  on  them  the 
names  of  persons  selected  to  serve  as  grand 
jurors,  in  a  box  to  be  called  the  'grand-jury  box,' 
and  those  having  on  them  the  names  of  persons 
selected  to  serve  as  trial  jurors,  in  a  box  to  be 
called  the  'trial-jury  box,'  and  in  the  other  coun- 
ties of  the  state  he  shall  deposit  the  said  pieces 
in  a  box  to  be  called  the   'jury-box.'  " 

3.  Amended  by  Code  Amdts.  1880,  p.  47, 
changing  the  first  sentence  to  read  as  at  present, 
and  the  second  sentence  to  read,  "He  shall  de- 
posit the  pieces  of  paper  having  on  them  the 
names  of  the  persons  selected  in  a  box,  to  be 
called  the  'jurj'-box.'  " 

4.  Amended  by  Stats.  1881,  p.  70. 


§  210.     Regular  jurors  to  serve  one  year.     The  persons  whose  names  are 

so  returned  shall  be  known  as  regular  jurors,  and  shall  serve  for  one  year 

and  until  other  persons  are  selected  and  returned. 

The  action  of  a  grand  jury  may  be  con- 
sidered valid  until  the  body  is  discharged 
by  the  court  or  by  operation  of  law:  the 
mere  expiration  of  the  year  does  not  effect 
a  discharge  by  operation  of  law.  People 
V.  Leonard,  106  Cal.  302;  39  Pac.  617. 

Service  of  juror.  Serving  on  a  jury  is 
the  only  way  in  which  a  juror  can  serve, 
within  the  meaning  of  this  section  (Hab 
sey  V.  Superior  Court,  152  Cal.  71,  84;  91 
Pac.  987),  which  is  applicable  laoth  to 
grand  and  to  trial  jurors.  People  v.  Leon- 
ard, 106  Cal.  302;  39  Pac.  617.  The  order 
of  a  trial  court  discharging  a  jury  upon 
reaching  a  verdict  in  any  given  case  does 
not  prove  that  the  individual  jurors  are 
thereby  relieved  from  future  jury  duty. 
People  v.  Gilmore,  17  Cal.  App.  737;  121 
Pac.  697. 


Legislation  §  210.    1.  Enacted  March  11,  1873. 

3.  Amended  by  Code  Amdts.  18S0,  p.  47, 
changing  (1)  "are  known"  to  "shall  be  known," 
and   (2)    "must  serve"  to  "shall  serve." 

Terra  of  service.  This  section  only  lim- 
its the  time  in  which  the  persons  selected 
shall  serve  for  the  purpose  of  the  draw- 
ing and  impanelment  of  the  jury,  and  im- 
poses no  limitations  whatever  upon  the 
life  of  a  jury,  either  grand  or  trial,  once 
drawn  and  impaneled,  and  the  mere  selec- 
tion, listing,  and  returning  of  the  grand 
jurors  for  the  succeeding  year  does  not,  of 
itself,  by  operation  of  law,  discharge  a 
grand  jury  then  in  existence.  Halsey  v. 
Superior  Court,  152  Cal.  71;  91  Pac.  987. 
The  term  of  service  is  one  year,  and  until 
other  persons  are  selected  and  returned. 
In  re  Gannon,  69  Cal.  541;  11  Pac.  240; 
Jacobs  v.  Elliott,  104  Cal.  318;  37  Pac.  942. 


§  211.  Jurors  to  be  drawn  from  boxes.  The  names  of  persons  drawn  for 
grand  jurors  shall  be  drawn  from  the  "grand-jury  box,"  and  the  names  of 
persons  for  trial  jurors  shall  he  drawn  from  the  "trial-jury  box";  and  if, 
at  the  end  of  the  year,  there  shall  be  the  names  of  persons  in  either  of  the 
said  jury-boxes  who  may  not  have  been  drawn  during  the  year  to  serve,  and 
have  not  served  as  jurors,  the  names  of  such  persons  may  be  placed  on  the 
list  of  jurors  drawn  for  the  succeeding  year. 


Legislation  §  211.  1.  Added  by  Code  Amdts. 
1875-76,  p.  87,  and  then  read:  "In  the  city 
and  county  of  San  Francisco,  the  names  of  per- 
sons for  grand  jurors  shall  be  drawn  from  the 
'grand-jury  box,'  and  the  names  of  persons  for 
trial  jurors  shall  be  drawn  from  the  'trial-jury 
box,'  and  in  the  other  counties  of  the  state,  the 
names  of  persons,  whether  for  grand  jurors  or 
trial  jurors,  shall  be  drawn  from  the  'jury-box.'  " 

3.  Amended  by  Code  Amdts.   1880,  p.  47,  to 


read:  "The  names  of  persons,  whether  for  grand 
or  trial  jurors,  shall  be  drawn  from  the  'jury- 
box'  ;  and  if,  at  the  end  of  the  year,  there  shall 
be  the  names  of  persons  in  the  'jury-box'  who 
may  not  have  been  drawn  during  the  year  to 
serve  as  jurors,  the  names  of  such  persons  may 
be  placed  upon  the  lists  of  jurors  drawn  for  the 
succeeding  vear." 

3.   Amended  by  State.  1881,  p.  70. 


§§214,215 


JURORS. 


112 


AKTICLE  IV. 

OF  DRAWING  JURORS  FOR  COURTS  OF  RECORD. 


Shall  proceed,  when.      [Repealed.] 
Drawing,  how  conducted. 
Preservation  of  ballots  drawn. 
Copy    of    list    to    be    furnished   by    clerk. 
[Repealed.] 


§  214.     Order  of  judge   or  judges   for   drawing   of         §  218. 
jury.  §  219. 

§  215.     When  clerk  shall  draw.  §  220. 

I  216.     Sheriff    and    judge    to    witness    drawing.         §  221. 
[Repealed.  ] 

§.217.    Drawing,    when    to    be    adjourned.      [Re- 
pealed.] 

§  214.  Order  of  judge  or  judges  for  drawing  of  jury.  Whenever  the 
business  of  the  superior  court  shall  require  the  attendance  of  a  trial  jury  for 
the  trial  of  criminal  cases,  or  where  a  trial  jury  shall  have  been  demanded 
in  any  cause  or  causes  at  issue  in  said  court,  and  no  jnvy  is  in  attendance, 
the  court  may  make  an  order  directing  a  trial  jury  to  be  drawn,  and  sum- 
moned to  attend  before  said  court.  Such  order  shall  specify  the  number  of 
jurors  to  be  drawn,  and  the  time  at  which  the  jurors  are  required  to  attend. 
And  the  court  may  direct  that  such  causes,  either  criminal  or  civil,  in  which 
a  jury  may  be  required,  or  in  which  a  jury  may  have  been  demanded,  be 
continued,  and  fixed  for  trial  w^hen  a  jury  shall  be  in  attendance. 

required  to  make  an  order  for  the  drawing 
from  the  "regular  jurors"  (Halsey  v.  Supe- 
rior _  Court,  152  Cal.  71;  91  Pac.  987), 
specifying  the  number  of  jurors  to  be 
drawn.  Jackson  v.  Baehr,  138  Cal.  266;  71 
Pac.  1(J7.  A.n  order  changing  the  hour  for 
the  drawing,  fixed  by  the  presiding  judge, 
does  not  inA-alidate  the  drawing.  Levy  v. 
Wilson,  69  Cal.  105;  10  Pac.  272.  An  order 
directing  the  clerk  to  draw  the  names  of 
a  designated  number  of  good  and  lawful 
men  to  be  drawn  from  the  county,  is  a 
sufficient  order.  People  v.  Wheeler,  65  Cal. 
77;  2  Pac.  892.  A  judge,  disqualified  to 
try  a  particular  cause,  may  order  and 
superintend  the  drawing  of  jurors  for  the 
ensuing  term.  Peo[)Ie  v.  Ah  Lee  Doon,  97 
Cal.  171,  31  Pac.  933. 

CODE  COMMISSIONERS'  NOTE.  A  substan- 
tial compliance  with  the  time  of  drawing  jurors, 
as  prescribed  by  this  chapter,  is  perhaps  suffi- 
cient. See  People  v.  Rodrifruez,  10  Cal.  50; 
People  V.  Stuart,  4  Cal.  218;  Thrall  v.  Smiley,  9 
Cal.  537;  see  also  note  to  §  225,  post. 


Summoning  jury.    See  post,  §  226. 

Legislation  §  214.  1.  Enacted  March  11,  1873, 
and  then  read  :  "Not  less  than  ten  nor  more  than 
thirty  days  before  the  commencement  of  any  term 
of  court,  the  judge  thereof,  if  a  jury  will  be 
required  therefor,  must  make  and  file  with  the 
county  clerk  an  order  that  one  be  drawn.  The 
number  to  be  drawn  must  be  fixed  in  the  order; 
if  to  form  a  grand  jury,  it  must  be  twenty-four, 
and  if  a  trial  jury,  such  number  as  the  judge 
may  direct." 

3.  Amended  by  Code  Amdts.  1S73-74,  p.  287, 
to  read:  "Before  the  commencement  of  any  term 
of  court,  the  judge  thereof,  if  a  jury  will  be 
required  therefor,  must  make  and  file  with  the 
county  clerk,  an  order  that  one  be  drawn.  The 
number  to  be  drawn  must  be  named  in  the  order; 
if  to  form  a  grand  jury,  it  must  be  twenty-four, 
and  if  a  trial  jury,  such  number  as  the  judge  may 
direct;  and  the  time  must  be  designated  at  which 
the  drawing  will  take  place." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  88, 
changing  the  last  sentence,  down  to  the  word 
"direct,"  to  read:  "If  to  form  a  grand  jury,  it 
must  be  not  less  than  twenty-five  and  not  more 
than  thirty ;  and  if  to  form  a  trial  jury,  such 
number  as  the  judge  may  direct." 

4.  Amended  by  Code  Amdts.  1880,  p.  47. 

Order  directing  drawing.     The  judge  is 


§  215.  "Wlien  clerk  shall  draw.  Immediately  upon  the  order  mentioned 
in  the  preceding  section  being  made,  the  clerk  shall,  in  the  presence  of  the 
court,  proceed  to  draw  the  jurors  from  the  "trial-jury  box." 


Legislation  §  215.  1.  Enacted  March  11,  1873, 
in  substance,  in  §§215,  216,  217,  218,  which 
then  read:  "215.  At  least  one  day  before  the 
drawing,  the  clerk  must  notify  the  sheriff  and 
county  judge  of  the  time  when  such  drawing  will 
take  place,  which  time  must  not  be  more  than 
three  days  after  the  receipt  by  him  of  the  order 
for  such  drawing."  "216.  At  the  time  so  ap- 
pointed, the  sheriff,  in  person  or  by  deputy,  and 
the  county  judge,  must  attend  at  the  county 
clerk's  office  to  witness  such  drawing,  and  if  they 
do  so,  the  clerk  must,  in  their  presence,  proceed 
to  draw  the  jurors."  "217.  If  the  officers  so  noti- 
fied do  not  appear,  the  clerk  must  adjourn  the 
drawing  until  the  next  day,  and,  by  written 
notice,  require  two  electors  of  the  county  to  at- 
tend such  drawing  on  the  adjourned  day."  "218. 
If,  at  the  adjourned  day,  the  sheriff,  county  judge, 
and  electors,  or  any  two  of  such  persons,  appear, 
the  clerk  must  in  their  presence  proceed  to  draw 
the  jurors." 


3.  By  Code  Amdts.  1873-74,  p.  287,  §§  215 
and  217  were  amended  to  ro.id :  "215.  Before 
the  drawing,  the  clerk  must  notify  the  sheriff 
and  county  judge  of  the  time  appointed  for  such 
drawing."  "217.  If  the  officers  named  do  not 
appear,  the  clerk  must  adjourn  the  drawing  till 
the  next  day,  and,  by  written  notice,  require  two 
electors  of  tlie  county  to  attend  such  drawing  on 
the  adjourned  day." 

3.  By  Code  Amdts.  18SO,  p.  47,  §  215  was 
amended  to  read  as  at  present,  except  that  the 
word  "trial"  was  omitted  before  "jury-box." 

4.  Amended  by  Stats.  1881,  p.  71. 

In  the  presence  of  the  court.  The  origi- 
nal section  required  the  clerk  to  notify  the 
sheriff  and  the  judge  of  the  drawing;  but 
if  they  were  present,  although  not  notified, 
the  drawing  was  valid.  People  v.  Galla- 
gher, 55  Call  462. 


113  DRAWING,  now  CONDUCTED.  §§  21G-220 

§  216.      [Sheriff  and  judge  to  witness  drawing.     Repealed.] 

Legislation  §  216.      See    ante,  Legislation  §  215. 

§  217.      [Drawing,  when  to  be  adjourned.     Repealed.] 

Legislation  §  217.      See    ante,  Legislation  §  215. 

§218.      [Shall  proceed,  when.     Repealed.] 

Legislation  g  218.      See    ante,  Legislation  §  215. 

§  219.  Drawing,  how  conducted.  The  clerk  must  conduct  said  drawing 
as  follows : 

1.  He  must  shake  the  box  containing  the  names  of  the  trial  jurors  so  as 
to  mix  the  slips  of  paper  upon  which  such  names  are  written  as  well  as 
possible;  he  must  then  draw  from  said  box  as  many  slips  of  paper  as  are 
ordered  by  the  court. 

2.  A  minute  of  the  drawing  shall  be  entered  in  the  minutes  of  the  court, 
which  must  show  the  name  on  each  slip  of  paper  so  drawn  from  said  jury- 
box. 

3.  If  the  name  of  any  person  is  drawn  from  said  box  who  is  deceased  or 
insane,  or  who  may  have  permanently  removed  from  the  county,  or  who  is 
exempt  from  jury  service,  and  the  fact  shall  be  made  to  appear  to  the  satis- 
faction of  the  court,  the  name  of  such  person  shall  be  omitted  from  the  list, 
and  the  slip  of  paper  having  such  name  on  it  shall  be  destroyed  and  another 
juror  drawn  in  his  place,  and  the  fact  shall  be  entered  upon  the  minutes 
of  the  court.  The  same  proceeding  shall  be  had  as  often  as  may  be  necessary 
until  the  whole  number  of  jurors  required  be  drawn.  After  the  drawing 
shall  be  completed,  the  clerk  shall  make  a  copy  of  the  list  of  names  of  the 
persons  so  drawn,  and  certify  the  same.  In  his  certificate  he  shall  state 
the  date  of  the  order,  and  of  the  drawing,  and  the  number  of  the  jurors 
drawn,  and  the  time  when,  and  the  place  where  such  jurors  are  required 
to  appear.  Such  certificate  and  list  shall  be  delivered  to  the  sheriff  for 
service. 

Legislation  §  219.    1.  Enacted  March  11,  1873,  the    persons    so    drawn    for    trial    jurors,    and    of 

and    then    read:    "The    cleric    must    conduct    such  those    drawn   for   grand   jurors,    with    their   places 

drawing    as    follows:    1.   He   must    shake    the   box  of  residence,   and   specifying  for  what  court  they 

containing  the  names   of  jurors  returned   to   him,  were   drawn,    must   be   mad-   and   certified   by   the 

from  which  jurors   are  required   to   be   drawn,    so  clerk   and   the    attending   officers   or   persons,    and 

as    to    mix    the    slips    of    paper   upon    which    such  delivered  to  the   sheriff  of  the   county." 

names  were  written,   as  much  as   possible;   2.    He  3.    Amended  by  Code   Amdts.   ISSO,  p.   47,  to 

must  then  publicly  draw  out  of  the  box  as  many  read   the   same  as   at  present,    except   that    (1)    in 

such  slips  of  paper  as  are  ordered  by  the  judge;  subd.    1    (a)    the   words   "the   trial"    were   omitted 

3.   A  minute  of  the  drawing  must  be  kept  by  one  before     the    word    "jurors,"    and     (b)     the    word 

of  the  attending  ofiicers,  in  which  must  be  entered  "said"  was  changed  from   "the";    (2)    in  subd.  2, 

the    name    contained    on    every    slip    of    paper    so  after     the    word    "name,"    the     phraseology    was 

drawn,    before    any    other    slip    is    drawn;    4.    If,  changed  from   "contained   on   every   slip   of  paper 

after    drawing    the    whole    number    required,    the  so   drawn  from  the    'jury-box'";    (3)    in  subd.    3, 

name  of  any  person  has  been  drawn  who  is  dead  (a)   in  first  line,   "said"  was  changed  from  "the," 

or  insane,  or  who  has  permanently  removed  from  (b)    words    "having    such    name    on    it    .shall    be" 

the  county,  to  the  knowledge  of  the  clerk  or  any  were    changed   from    "containing   such    name   be," 

other    attending    officer,    an    entry    of    such    fact  (c)   word  "be,"  between  "required"  and  "drawn," 

must  be  made  in  the  minute  of  tlae  drawine,   and  was    changed    from    "are,"    and     (d)    word    "the" 

the   slip   of  paper  containing  such  name   must   be  omitted  in  words  "number  of  the  jurors." 

destroyed;  5.    Another  name  must  then  be  drawn,  S.   Amended  by  Stats.  1S81,  p.  71. 

in   place   of   that   contained   on   the   slip    of   paper  r<«„i4«„„4.4«...    «*    — j—       rm.                              a 

so   destroyed,   which   must,   in  like  manner,    be  Ceriification   of   Order.     The  purpose   of 

entered  in  the  minutes  of  the  drawing;   6.  The  requiring  the  clerk  to  certify  to  the  date 

same  proceedings  must  be  had 'as  often  as  may  of  the  order  and  of  the  drawing  is  merely 

be   necessary,    until   the   whole   number   of   jurors  ^       iilentificqtion  •   in   order  ofherwit^p  iden- 

required  are  drawn;  7.  The  minute  of  the  draw-  ^PJ  laentincation,  an  order  otnerwise  icien 

ing    must    then    be    signed    by    the    clerk    and    the  titled  IS  sumcient.    People   V.   lams,   5 1    Lai. 

attending    officers    or    persons,    and    iiled    in    the  115. 
clerk's   office;    8.   Separate    lists   of   the    names   of 

§  220.  Preservation  of  ballots  drawn.  After  a  drawing  of  persons  to 
serve  as  jurors,  the  clerk  shall  preserve  the  ballots  drawn,  and  at  the  close 

1  Fair. — 8 


§§  221-226  JURORS.  114 

of  the  session  or  sessions  for  which  the  drawing  was  had,  he  shall  replace  in 
the  proper  box  from  which  they  were  taken  all  ballots  which  have  on  them 
the  names  of  persons  who  did  not  serve  as  jurors  for  the  session  or  sessions 
aforesaid,  and  who  were  not  exempt  or  incompetent. 

Legislation  g  220.    1.  Enacted  March  11,  1873,  3.   Amended  by  Code  Amdts.  1875-70,  p.  88, 

and    then    read:    "After   the    adjournment    of    any  to    read:    "After    a    drawing    of    persons    to    serve 

court    at    which    jurors    have    been    returned,    as  as    jurorg,    the    clerk    muat    preserve    the    ballots 

herein  provided,  the  clerk  must  inclose  the  ballots  drawn;   and  at  the  close  of  the  term  of  the  court 

containing  the  names  of  those  who  attended  and  for  which  the   drawing  was  had,   must  replace   in 

served  as  jurors  in  an  envelope,  under  seal,   and  the  box  from  which   they  were  taken,   all  ballots 

the    ballots    of    those    who    did    not    attend    and  which   have   on  them   the   names   of  persons   who 

serve    must    be    returned    to    the    jury-box.      The  did    not    serve    as   jurors    for   the    term,    and    who 

ballots  sealed  in  envelopes  must  not  be  returned  were   not   excused  because   they   were   exempt   or 

to  the  jury-box  until  all  the  ballots  therein  have  incompetent." 
been  exhausted."  3.   Amended  by  Code  Amdts.  ISSO,  p.  48. 

§  221.     [Copy  of  list  to  be  furnished  by  clerk.     Repealed.] 

Legislation  §  221.    1.  Enacted  March  11,  1873.        in  amending  Part  I. 
3.  Repealed    by    Code    Amdts.    1880,    p.    21, 

ARTICLE  V. 

OF  SUMMONING  JURORS  FOR  COURTS  OF  RECORD. 

§225.     Sheriff  to  summon  jurors,  how.  §227.     Of  summoning  jurors  to  complete  a  panel. 

§226.     Of   drawing   and   summoning  jurors   to  at-         §228.     Compensation  of  elisor, 
tend  forthvdth. 

§  225.  Sheriff  to  summon  jurors,  how.  The  sheriff,  as  soon  as  he  receives 
the  list  or  lists  of  jurors  drawn,  shall  summon  the  persons  named  therein  to 
attend  the  court  at  the  opening  of  the  regular  session  thereof,  or  at  such  ses- 
sion or  time  as  the  court  may  order,  by  giving  personal  notice  to  that  effect 
to  each  of  them,  or  by  leaving  a  written  notice  to  that  effect  at  his  place  of 
residence,  with  some  person  of  proper  age,  or  by  mailing  such  notice  by 
registered  mail,  and  shall  return  the  list  to  the  court  at  the  opening  of  the 
regular  session  thereof,  or  at  such  session  or  time  as  the  jurors  may  be 
ordered  to  attend,  specifying  the  names  of  those  who  were  summoned,  and 
the  manner  in  which  each  person  was  notified. 

Legislation  §  225.    1.  Enacted  March  11,  1873,  lo  secure  honest  and  intelligent  men  for  the  trial, 
and_  then   read:    "As   soon   as   he   receives   the   list  and    it    is    of    no    practical    consequence    in    what 
of    jurors    drawn,    the    sheriff    must    summon    the  order  or  at  what   time   during   the   term  they   are 
persons  named   therein   to   attend,    by   giving   per-  summoned.      It  would  be  productive  of  great  hard- 
sonal    notice    to    each,    or    by    leaving    a    written  ship   to   permit    a    second   trial   upon   a   ground   so 
notice   at   his   place   of   residence,    with    some   per-  technical    and    unsubstantial.      Unless    the    irreg- 
son    of   proper    age,    and    must   return    the    list    to  ularity    complained    of    in    the    formation    of    the 
the   court   at   the   opening   thereof,    specifying    the  jury   goes   to   the   merits   of   the   trial,   or  leads   to 
names  of  those  who  were  summoned  and  the  man-  tlie    inference    of    improper    influence    upon    their 
ner  in  which  each  person  was  notified."  conduct,    their    verdict    should    not    be    disturbed. 
3.   Amended  by  Code  Amdts.  1880,  p.  48.  King  v.  Hart,  4  Barn.  &  Aid.  430;   United  States 
3.   Amended   by    Stats.    1915,   p.    931,    adding  v.    Gilbert,    2    Sum.    19;    Fed.    Cas.    No.    15204; 
"or  by   mailing   such   notice   by   registered   mail."  People  v.  Ransom,  7  Wend.  417;  Amherst  v.  Had- 
TN.  i         j>     ^   _4^       TTT,     XT               -,  ley,    1   Pick.    (JIass.)    3S;    Commonwealth   v.   Jus- 
Inity  of  sneriff.     Whether  a  drawn  or  a  tices    of   Court    of    Sessions,    5    Mass.    435.      In 
special  panel,  the  sheriff  must,  in  the  first  in-  Page  v.  Inhabitants  of  Danvera,  7  Met.   (Mass.) 
stance,  execute  the  order  of  court  in  serv-  327,  it  was   objected  that   certain  of  the  jurors 
,  '                                                               -.           ,.  who  sat  m  the  case  were  not  selected  m  conform- 
ing the   summons;    where  he   was  disquali-  ity  with  law,   and  were  not  qualified  to  act,   and 
fied,  the  venire,  at  common  law,  was  directed  this  fact  the  parties  had  for  the  first  time  learned 

in    the    coroTipr       Pponlp    v     Vflsnnez     9    Cal  since   the    trial    and   decision;    but   the    court,    per 

u>  tne   coroner,     -t'eopie   v.    vasquez,   y   uai.       gj^^^_  ^  ^    ^^.^^.  ..j^  ^^^^^  ^^^  ^^^  irregularity 

App.  Ot;0^  yy  Irac.  JoZ.  in  the  manner  of  selecting  the  jury,  and  if  this 
CODF  COMMISSIONERS'  NOTE.  The  alleged  would  have  been  good  ground  of  exception,  if  sea- 
disqualification  of  one  of  the  jurors  consists  in  sonably  taken,  still  it  came  too  late,  aft_er  pro- 
the  fact  that  his  name  was  not  on  the  venire  re-  ceedmg  to  trial.  The  ground  is  not  that  the 
turned  by  the  sheriff  It  appears,  however,  that  jurors  were  interested  or  prejudiced,  or  otherwise 
hp  had  been  summoned  at  the  commencement  of  personally  improper,  but  thai  there  was  a  mere 
the  term  and  that  his  name  was  entered  on  the  irregularity,  not  apparently  affecting  the  merits, 
minutes  'and  placed  in  the  box,  and  drawn  for  Such  an  objection,  if  available  at  all,  must  be 
the  trial  in  the  same  manner  as  the  other  jurors  seasonably  taken.  This  results  from  strong  con- 
were  drawn.  The  objection,  if  it  had  any  valid-  siderations  of  policy  and  expediency,  rendering  it 
ity  should  have  been  urged  at  the  trial;  it  comes  an  imperative  rule  of  practice.  Thrall  v.  Smiley, 
too  late  after  verdict.      The  object  of  the  law  is  9  Cal.  337. 

§  226.     Of  drawing  and  summoning  jurors  to  attend  forthwith.     When- 
ever jurors  are  not  drawn  or  summoned  to  attend  any  court  of  record  or 


115 


SUMMONING  JURORS  TO  COMPLETE  PANEL. 


§227 


on    foreclosure     of 


session  thereof,  or  a  sufficient  number  of  jurors  fail  to  appear,  such  court 
may  order  a  sufficient  number  to  be  forthwith  drawn  and  summoned  to 
attend  the  court,  or  it  may,  by  an  order  entered  in  its  minutes,  direct  the 
sheriff,  or  an  elisor  chosen  by  the  court,  forthwith  to  summon  so  many  good 
and  lawful  men  of  the  county,  or  city  and  county,  to  serve  as  jurors,  as  may 
be  required,  and  in  either  case  such  jurors  must  be  summoned  in  the  manner 
provided  in  the  preceding  section. 

from  the  body  of  the  county  (Levy  v.  Wil- 
son, 69  Cal.  105;  10  Pac.  272;  People  v. 
Vincent,  95  Cal.  425;  30  Pac.  581;  People 
V.  Hickman,  113  Cal.  80;  45  Pac.  175; 
People  V.  Durrant,  116  Cal.  179;  48  Pac. 
75;  People  v.  Sehorn,  116  Cal.  503;  48 
Pac.  495);  and  it  is  immaterial  whether 
the  order  for  the  special  venire  is  made 
before  or  after  the  commencement  of  the 
sitting  of  the  court  (People  v.  Williams, 
43  Cal.  344;  People  v.  Ah  Chung,  54  Cal. 
398);  and  any  objection  to  the  order 
directing  the  jury  to  be  summoned  must 
be  made  by  challenge  to  the  panel.  People 
V.  Kelly,  46  Cal.  355.  The  court  has  dis- 
cretion to  order  a  jury  drawn  from  the 
box,  or  to  issue  a  special  venire  (Levy  v. 
Wilson,  69  Cal.  105;  10  Pac.  272;  People  v. 
Leonard,  106  Cal.  302;  39  Pac.  617;  People 
y.  Sehorn,  116  Cal.  503;  48  Pac.  495),  and 
it  is  no  ground  of  objection  that  the  regu- 
lar jury  was  not  exhausted.  People  v. 
Durrant,  116  Cal.  179;  48  Pac.  75;  People 
V.  Sehorn,  116  Cal.  503;  48  Pac.  495. 
While  the  better  practice  would  be  to  fill 
the  panel  from  the  jury-box  in  such  cases 
(Levy  V.  Wilson,  69  Cal.  105;  10  Pac.  272; 
People  V.  Suesser,  142  Cal.  354;  75  Pac. 
1093),  yet  it  is  not  even  an  irregularity  to 
order  a  special  venire.  Leahy  v.  Southern 
Pacific  E.  R.  Co.,  65  Cal.  150;  3  Pac.  622; 
People  v.  Prather,  134  Cal.  436;  66  Pac. 
589,  863.  The  court  also  has  power  to 
direct  a  special  venire,  where  the  jurors, 
though  drawn,  have  not  been  summoned 
(People  V.  Devine,  46  Cal.  45;  People  v. 
Vincent,  95  Cal.  425;  People  v.  Sehorn,  116 
Cal.  503;  48  Pac.  495),  and  where  no  list 
of  persons  to  serve  during  the  year  has 
been  made  by  the  board  of  supervisors. 
People  V.  Durrant,  116  Cal.  179;  48  Pac. 
75;  People  v.  Sehorn,  116  Cal.  503;  48  Pac. 
495;  People  v.  Prather,  134  Cal.  436;  68 
Pac.  589,  863.  As  the  matter  of  excusing 
jurors  is  largely  in  the  discretion  of  the 
court,  too  great  liberality  in  excusing  them 
does  not  affect  the  regularity  of  the  spe- 
cial venire.  People  v.  Hickman,  113  Cal. 
80;  45  Pac.  175. 


Elisor.     Appointment    of, 
mortgage.    See  post,  §  726. 

Legislation  §  226.  1.  Enacted  March  11,  1873, 
and  then  read :  "Whenever  jurors  are  not  drawn 
and  summoned  to  attend  any  court  of  record,  or 
a  sufficient  number  of  jurors  fail  to  appear,  such 
court  may,  in  its  discretion,  order  a  sufficient 
number  to  be  forthwith  drawn  and  summoned  to 
attend  such  court;  or  it  may,  by  an  order  entered 
on  its  minutes,  direct  the  sheriff  of  the  county 
forthwith  to  summon  so  many  good  and  lawful 
men  of  his  county  to  serve  as  jurors  as  the  case 
may  require.  And  in  either  case  such  jurors 
must  be  summoned  in  the  manner  provided  by 
the  preceding  section." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  288, 
(1)  changing  the  word  "such"  to  "the,"  in  the 
words  "attend  the  court";  (2)  adding  the  words 
"an  elisor  selected  by  the  court,  or,"  before  "the 
sheriff";  and  (3)  changing  the  word  "his"  to 
"the,"  in  words  "men  of  the  county." 

3.   Amended  by  Code  Amdts.  ISSO,  p.  48. 

Elisor.  An  elisor  is  a  person  appointed 
to  serve  process  or  return  a  jury,  when  the* 
sheriff  and  the  coroner  are  incompetent 
(Bruner  v.  Superior  Court,  92  Cal.  239;  28 
Pac.  341);  but,  unless  both  are  disquali- 
fied, the  court  has  no  power  to  appoint  an 
elisor  (Wilson  v.  Roach,  4  Cal.  362;  Peo- 
ple v.  Fellows,  122  Cal.  233;  54  Pac.  830; 
People  v.  Vasquez,  9  Cal.  App.  545;  99  Pac. 
982) ;  and  before  appointing  an  elisor,  the 
court  should  require  a  showing  that  both 
are  disqualified  (Bruner  v.  Superior  Court, 
92  Cal.  239;  28  Pac.  341;  People  v.  Irwin, 
77  Cal.  494;  20  Pac.  56;  People  v.  Yeatou, 
75  Cal.  415;  17  Pac.  544);  but  if  it  is  ad- 
mitted that  the  sheriff  is  disqualified,  and 
the  coroner  has  acted  on  the  jury  of  in- 
quest, an  elisor  must  be  appointed  (People 
V.  Sehorn,  116  Cal.  503;  48  Pac.  495);  and 
also  where  the  sheriff  is  an  interested 
party  and  there  is  no  coroner  (Pacheco  v. 
Hunsacker,  14  Cal.  120),  and  also  where 
the  coroner  is  unable  to  act  by  reason  of 
sickness.  People  v.  Ebanks,  117  Cal.  652; 
40  L.  R.  A.  269;  49  Pac.  1049.  The  sheriff 
being  disqualified,  his  deputies  are  like 
wise  disqualified.  People  v.  Le  Doux,  155 
Cal.  535;  102  Pac.  517. 

Special  venire.  Where  a  sufficient  num- 
ber of  jurors  fail  to  appear,  of  those  sum- 
moned and  returned  according  to  law,  the 
court  may  fill  the  panel,  by  special  venire. 


§  227.  Of  summoning  jurors  to  complete  a  panel.  When  there  are  not 
competent  jurors  enough  present  to  form  a  panel  the  court  may  direct  the 
sheriff,  or  an  elisor  chosen  by  the  court,  to  summon  a  sufficient  number  of 
persons  having  the  qualifications  of  jurors  to  complete  the  panel  from  the 
body  of  the  county,  or  city  and  county,  and  not  from  the  bystanders;  and  the 


§§  228-232  JURORS.  116 

sheriff  or  elisor  shall  summon  the  number  so  ordered  accordingly  and  return 
the  names  to  the  court. 

Legislation  §  227.  1.  Enacted  March  11,  1873  (1)  changing  the  words  "or  other  proper  ofBcer" 
(based  on  Practice  Act,  §589),  and  then  read:  to  "or  an  elisor  selected  by  the  court,"  and  (2) 
"When  there  are  not  competent  jurors  enough  adding  the  words  "or  elisor"  before  "must  sum- 
present  to  form  a  panel,  the  court  may  direct  the  mon." 

sheriff  or  other  proper  officer  to  summon   a  suffi-  3.   Amended  by  Code  Amdts.  ISSO,  p.  48. 

cicnt  number  of  persons,  having  the  qualification  o         •    -i 

of  jurors,  to  complete  the  panel,  from  the  body  Special  venire   to   complete   panel.     See 

of  the   county  and  not  from  the  bystanders,   and  note  ante,  §  226. 
the  sheriff  must  summon  the  number  so  ordered, 

accordingly,  and  return  the  names  to  the  court."  CODE    COMMISSIONERS'    NOTE.     See   notes 

S.  Amended  by  Code  Amdts.  1873-74,  p.  288,  to  §§  214  and  225,  ante. 

§  228.  Compensation  of  elisor.  An  elisor  who  shall,  by  order  of  a  court 
of  record,  summon  persons  to  serve  as  jurors,  shall  be  entitled  to  a  reason- 
able compensation  for  his  services,  which  must  be  fixed  by  the  court  and  paid 
out  of  the  county,  or  city  and  county  treasury,  and  out  of  the  general  fund 
thereof. 

Legislation  §  228.      1.  Added  by  Code  Amdts.        der,"   and   (2)    the  section  ended  with  the  words 
1875—76.  p.  88,   and  read   as  at  present,   except         "paid  out  of  the  county  treasury." 
that    (1)    the   word    "the"    was   used   before    "or-  2.  Amended  by  Code  Amdts.  1880,  p.  49. 

ARTICLE  VI. 
OF  SUMMONING  JUKOES  FOE  COUETS  NOT  OF  EECOED. 

§230.    Jurors  for  justices' or  police  courts.  §232.     Officer's  return. 

§  231.     How  to  be  summoned. 

§  230.  Jurors  for  justices'  or  police  courts.  When  jurors  are  required  in 
any  of  the  justices'  courts,  or  in  any  police  or  other  inferior  court,  they 
shall,  upon  order  of  the  justice,  or  any  one  of  the  justices  where  there  is 
more  than  one,  or  of  the  judge  thereof,  be  summoned  by  the  sheriff,  con- 
stable, marshal,  or  policeman  of  the  jurisdiction. 

Legislation  §  230.    1.  Enacted  March  11,  1873,  commissioner    saying    in    his    note,    "The    amend- 

and  then  read  :   "When  jurors  are  required  in  any  ment  consists  in  changing  the  word  'if   to  'of   to 

police    or    justice's    court,    they    must,    upon    the  correct  an  error." 

order    of    the    judge    or    justice    thereof,    be    sum-  j       t.    •      ji        t    ^         j. 

moned    by    the    sheriff,     marshal,     policeman,     or  By   Wliom   Summoned.      It   IS   the    duty    of 

constable  of  the  jurisdiction."  the  justice   Or  judge  Ordering  the  jury   to 

2.   Amended  by  Code  Amdts.   1880,  p    49,   to  •      ^^^  g^^  instance,  by  whom   it  shall 

read    as    at   present,    except    that    (1)    it   had    the  ■,    •' '                     -,            -,               '•',,.. 

word   "the"   before   "order,"    and    (2)    the   word  be  summoned;  and  any  error  therein  is  not 

"of"    was    printed    "if"    before    the    words    "the  jurisdictional.    Wittman  v.  Police  Court,  145 

'"Kmended  by  Stats.  1G07,  p.  680  ;  the  code  Cal.  474;  78  Pac.  1052. 

§231.  How  to  be  summoned.  Such  jurors  must  be  summoned  from  the 
persons  competent  to  serve  as  jurors,  residents  of  the  city  and  county,  town- 
ship, city,  or  town  in  which  such  court  has  jurisdiction,  by  notifying:  them 
orally  that  they  are  summoned,  and  of  the  time  and  place  at  which  their 
attendance  is  required. 

Legislation  §  231.     1.  Enacted  March  11,  1873,  them    orally   that   they   are    so   summoned,    and   of 

and  then  read:    "Such  jurors   must  be  summoned  the   time   and  place   at   which   their   attendance   is 

from   the   persons    resident    of   the    city    or    town-  required." 
ship,    competent  to   serve   as  jurors,   by  notifying  3.   Amended  by  Code  Amdts.  1S80,  p.  49. 

§232.  Officer's  return.  The  officer  summoning  such  jurors  shall,  at  the 
time  fixed  in  the  order  for  their  appearance,  return  it  to  the  court  with  a 
list  of  the  persons  summoned  indorsed  thereon. 

Legislation  §  232.    1.  Enacted  March  11,  1873,         their    appearance,    return    it,    Avith    a    list    of    the 
and     thi-n     read:     "The     officer    summoning    such        persons  summoned   indorsed  thereon." 
jurors    must,    at    the   time   fixed  in   the    order   for  3.   Amended  by  Code  Amdts.  1880,  p.  49. 


117      SUMMONING  JURIES  OF  INQUEST — IMPANELING  GRAND   JURIES.       §§235-241 

ARTICLE  VII. 

OF  SUMMONING  JURIES  OF  INQUEST. 
§235.    How  to  be  summoned. 

§235.  How  to  be  summoned.  Juries  of  inquest  shall  be  siiramoned  by  the 
officer  before  whom  the  proceedings  in  which  they  are  to  sit  are  to  be  had, 
or  by  any  sheriff,  consta' le,  or  policeman,  from  the  persons  competent  to 
serve  as  .jurors,  resident  of  the  county,  or  city  and  county,  by  notifying  them 
orally  that  they  are  so  summoned,  and  of  the  time  and  place  at  which  their 
attendance  is  required. 

Legislation  §  235.    1.  Enacted  March  11,  1873,  tent  to  serve  as  jurors,  by  notifying  them  orally 

and  then   read:    "Juries   of   inquest  must   be   sum-  that  they  are   so  summoned,   and  of  the  time  and 

moned  by  the  officer  before  whom  the  proceedings  place  at  which  their  attendance  is  required." 

are   h?.d,    or  any   sheriff,    polictman,    or   constable,  3.   Amended  by  Code  Amdts.  ISSO,  p.  49, 
from   the   persons   resident   of   the   county    compe- 

ARTICLE  VIII. 
OBEDIENCE  TO  SUMMONS,  HOW  ENFORCED. 

§  238.    Attachment  and  fine. 

§  238.  Attachment  and  fine.  Any  juror  summoned,  who  willfully  and 
without  reasonable  excuse  fails  to  attend,  may  be  attached  and  compelled  to 
attend ;  and  the  court  may  also  impose  a  fine  not  exceeding  fifty  dollars, 
upon  which  execution  may  issue.  If  the  juror  was  not  personally  served, 
the  fine  must  not  be  imposed  until  upon  an  order  to  show  cause  an  oppor- 
tunity has  been  offered  the  juror  to  be  heard. 

Legislation  S  238.    1.  Enacted  March  11,  1873  j  "fifty  dollars." 

based  on  Stats.  1863,  p.  630.  ^^t^„   ^^-..-.^-^r.^-,^^-,-^-^^.  -^-rr^r,,-,,      ^ 

3.  Amended    by    Code    Amdts.    1880,    p.    49,  CODE  COMMISSIONERS'  NOTE.    Stats.  1863. 

changing    the    words    "one    hundred    dollars"    to  P-  "30. 

ARTICLE  IX. 

OF  IMPANELING  GRAND  .JURIES. 

§  241.     Grand   juries,  when   and   by   whom   impan-         §  243.     Manner  of  impaneling  prescribed  in  Penal 

tied.  Code. 

i  242.     How  constituted. 

§  241.  Grand  juries,  when  and  by  whom  impaneled.  Every  superior 
court,  whenever  in  the  opinion  of  the  court  the  public  interest  requires  it, 
must  make  and  file  with  the  county  clerk,  an  order  directing  a  jury  to  be 
drawn,  and  designate  the  number,  which,  in  case  of  a  grand  jury,  shall  not 
be  less  than  twenty-five  nor  more  than  thirty.  In  all  counties  there  shall  be* 
at  least  one  grand  jury  drawn  and  impaneled  in  each  year.  Such  order 
must  designate  the  time  at  which  the  drawing  will  take  place.  The  names 
of  such  jurors  shall  be  drawn,  the  list  of  names  certified  and  summoned,  as 
provided  for  drawing  and  summoning  trial  jurors;  and  the  names  of  any 
persons  drawn,  who  may  not  be  impaneled  upon  the  grand  jury,  may  be 
again  placed  in  the  grand-jury  box. 

Summoning  grand  jury.  Const.,  art.  i,  §  8.  clerk  of  their  respective  counties  an  order  direct- 
ing a  jury  to  be  drawn,  and  designating  the  num- 

Legislation  §  241.     1.  Enacted  March  11,  1S73,  ber  which,   in  case   of  a  grand  jury,   sliall   not  be 

and   then  read:    "At  the   opening   of   each   regular  less    than   twenty-five   nor   more   than   thirty.      In 

term     of     the     county     court     (unless     otherwise  all  counties  having  less  than  three  superior  judges 

directed   by    the   judge),    and   as    often   thereafter  there  shall  be  one  grand  jury   drawn  and  impan- 

as  to   the  judge   may   seem   proper,   a   grand   jury  eled    in    each    year,    and    in    all    counties    having 

may  be  impaneled."  three  or  more  superior  judges  there  shall  be  two 

3.   Amended   by  Code   Amdts.    1880,  p.   50,   to  grand  juries   drawn  and   impaneled   in   each   year, 

read:     "Every    superior    court,    whenever    in    the  Such  order  must  designate  the  time  at  which  the 

opinion    of    the    court    the    public    interests    may  drawing    will    take    place.      The    names    of    such 

require   it,    must   make   and   file    with    the    county  jurors  shall  be  drawn,  the  list  of  names  certified 


§§242-246 


JURORS. 


118 


and  summoned  as  provided  for  drawing  and  sum- 
moning trial  jurors;  and  t!u  r  ames  of  any  per- 
sons drawn  who  may  not  be  impaneled  upon  the 
grand  jury  may  be  again  placed  in  the  'jury- 
box.'  " 

3.  Amended  by  Stats.  18S1,  p.  71,  ( I)  trans- 
posing the  words  "may"  and  "must"  in  the  sec- 
ond line,  thus  changing  the  words  to  "must  require 
it,  may  make"  (sic)  ;  (2)  inserting  "court"  be- 
tween the  words  "superior  judges,"  in  both  in- 
stances; and  (3)  inserting  "grand"  before  "jury- 
box,"  in  last  line. 

4.  Amended  by  Stats.  1901,  p.  122;  uncon- 
stitutional.     See  note  ante,  §  5. 

5.  Amended  by  Stats.  1905,  p.  139. 

Impanelrnent.  A  grand  jury  impaneled 
in  accordance  with  this  section  and  §  226, 
ante,  is  valid.  People  v.  McDonnell,  47  Cal. 


134;  Levy  v.  Wilson,  69  Cal.  105;  10  Pac. 
272.  The  grand  jury  was  formerly  a  part 
of  the  old  county  court  system.  Halsey  v. 
Superior  Court,  152  Cal.  71;  91  Pac.  987. 

Time  of  drawing,  and  official  existence. 
The  time  of  drawing  and  of  the  official  ex- 
istence of  the  grand  jury  is  not  fixed.  In  re 
Gannon,  69  Cal.  541,  545;  11  Pac.  240.  A 
grand  jury,  regularly  impaneled  and  organ- 
ized, does  not  become  discharged,  by  opera- 
tion of  law,  by  the  mere  selection,  listing, 
and  returning  of  the  grand  jurors  for  the 
succeeding  year.  Halsey  v.  Superior  Court, 
152  Cal.  71;  91  Pac.  987. 


§242.  How  constituted.  When,  of  the  persons  summoned  as  grand 
jurors  and  not  excused,  nineteen  are  present,  they  shall  constitute  the  grand 
jury.  If  more  than  nineteen  of  such  persons  are  present,  the  clerk  shall 
write  their  names  on  separate  ballots,  Avhich  he  must  fold  so  that  the  names 
cannot  be  seen,  place  them  in  a  box,  and  draw  out  nineteen  of  them,  and 
the  persons  whose  names  are  on  the  ballots  so  drawn  shall  constitute  the 
grand  jury.  If  less  than  nineteen  of  such  persons  are  present,  the  panel 
may  be  filled  as  provided  in  section  two  hundred  and  twenty-six  of  this  code. 
And  whenever,  of  the  persons  summoned  to  complete  a  grand  jury,  more 
shall  attend  than  are  required,  the  requisite  number  shall  be  obtained  by 
writing  the  names  of  those  summoned  and  not  excused  on  ballots,  deposit- 
ing them  in  a  box,  and  drawing  as  above  provided. 
Legislation  §  242.    1.  Enacted  March  11,  1ST3       venire  may  be  ordered  (Levy  v.  Wilson,  69 

Cal.  105;  10  Pac.  272);  and  where  the  im- 
panelrnent differs  only  in  form  from  the 
requirements  of  the  statute,  it  will  not  viti- 
ate a  panel  as  made  up  finally  from  a  spe- 
cial venire.  People  v.  Prather,  134  Cal.  436; 
66  Pac.  589,  863;  People  v.  Leonard,  106 
Cal.  302;  39  Pac.  617. 

Number  of  grand  jurors.  Where  nine- 
teen persons  are  present,  they  constitute  a 
grand  jury,  and  should  the  number  be  less, 
the  panel  may  be  filled  by  special  venire. 
Bruner  v.  Superior  Court,  92  Cal.  239;  28 
Pac.  341.  The  number  of  grand  jurors, 
prior  to  the  amendment  of  this  section  in 
1876,  was  not  less  than  thirteen  nor  more 
than  fifteen.    People  v.  Hunter,  54  Cal.  65. 

§  243.  Manner  of  impaneling  prescribed  in  Penal  Code.  Thereafter  such 
proceedings  shall  be  had  in  impaneling  the  grand  jury  as  are  prescribed  in 
part  two  of  the  Penal  Code. 


(based  on  Stats.  1863,  p.  634),  and  then  read: 
"When,  of  the  jurors  summoned,  not  less  than 
thirteen  nor  more  than  fifteen  attend,  they  shall 
constitute  the  grand  jury.  If  more  than  fifteen 
attend,  the  clerk  must  call  over  the  list  sum- 
moned, and  the  fifteen  first  answering  shall  con- 
stitute the  grand  jury.  If  less  than  thirteen 
attend,  the  panel  may  be  filled  to  fifteen  as  pro- 
vided in  section  two  hundred  and  twenty-six." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  88, 
to  read  as  at  present,  except  that  (1)  in  the 
first  line  the  word  "persons"  was  changed  from 
"jurors,"  and  the  words  "as  grand  jurors"  were 
added  after  "summoned";  (2)  the  words  "clerk 
shall"  were  changed  from  "clerk  must";  and  (3) 
the  words  "of  this  code"  were  added  after  "sec- 
tion two  hundred  and  twenty-six." 

3.  Amended  by  Code  Amdts.  1880,  p.  50. 

Special  venire  to  complete  panel.  For 
any  defect  in  the  original  panel,  a  special 


Formation    of    grand    jury.       See    Pen.    Code, 
§§  894-901. 

Legislation  §  243.    1.  Enacted  March  11,  1873. 


3.   Re-enacted    by   Code   Amdts.    18SO,    p.    50, 
in  amending  Part  I. 


ARTICLE  X. 

OF  IMPANELING  TRIAL  JURIES  IN  COURTS  OF  RECORD. 


246.  Clerk  to  call  list  of  jurors  summoned. 

247.  Manner   of   impaneling  prescribed   in  part 

two. 


§  248.    Counties  having  more  than  one  judge. 


§  246.  Clerk  to  call  list  of  jurors  summoned.  At  the  opening  of  court  on 
the  day  trial  jurors  have  been  summoned  to  appear,  the  clerk  shall  call  the 
names  of  those  summoned,  and  the  court  may  then  hear  the  excuses  of 


119  MANNER  OF  IMPANELING PROCEEDINGS   IN   FORMING  JURY.       §§  247-250 

jurors  summoned.  The  clerk  shall  then  write  the  names  of  the  jurors  pres- 
ent and  not  excused  upon  separate  slips  or  ballots  of  paper,  and  fold  such 
slips  so  that  the  names  are  concealed,  and  there,  in  the  presence  of  the  court, 
deposit  the  slips  or  ballots  in  a  box,  which  must  be  kept  sealed  or  locked 
until  ordered  by  the  court  to  be  opened. 

Legislation  §  246.    1.  Enacted  March  11   1872,  jurors  are  actually  engaged  in  deliberating 

and  read  as  at  present,  except  that   (1)    the  word  „Tinvi    n    -rr^^^ii^t.   „j.   ii,      i.-  i       i.         j- 

"shall,"  after  "clerk,"  was  changed  from  "must,"  ^P^^  a  verdict  at  the  time;   and  when  dis- 

ia  both  instances;  (2)  the  words  "there,"  before  Charged  from  that  verdict,  it  is  the  duty  of 

"in    the   presence,"    was    changed   from    "then";  the  clerk  to  return  their  names  to  the  iurv- 

and   (3)  it  did  not  contain  the  words  "or  locked,  '  i,„„    __  j   ;f  j.i,-      •      „„.     r,^  ..    ■      ,,        ■,    / 

after  the  word  "sealed."  ^^^>  ^°^  ^^  ^'^^^  is  not  done,  it  IS  the  duty 

3.  Amended  by  Code  Amdts.  1880,  p.  50.  of  the  Court  to  discharge  those  jurors  who 


All  names  must  be  placed  in  the  jury- 


have   already   beeu    sworn    on   such    latter 


box.     The  names  of  all  jurors  must  be  put       f"^  ,^°<3  commence  the  impanelment  anew. 
in  the  jury-box  at  the  beginning  of  the  im-       People  v.  Edwards,  101  Cal.  543;  36  Pac.  7. 
panelment  of  the  jury,  unless  some  of  the 

§247.  Manner  of  impaneling-  prescribed  in  part  two.  Whenever  there- 
after a  civil  action  is  called  by  the  court  for  trial,  and  a  jury  is  required, 
such  proceedings  shall  be  had  in  impaneling  the  trial  jury  as  are  prescribed 
in  part  two  of  this  code.  If  the  action  be  a  criminal  one,  the  jury  shall  be 
impaneled  as  prescribed  in  the  Penal  Code. 

Formation  of  jury.  called    for   trial    by   the    court,    such   proceedings 

1.  In  civil  action.    See  post,  §§  600-604.  shall  be  had  in  impaneling  the  trial  jury  as  are 

2.  Criminal  cases.    See  Pen.  Code,  §s  1055-        prescribed  in  Part  II  of  this  code." 

1089.  2*   Amended  by  Coda  Amdts.  18SO,  p.  51. 

Legislation  §  247.  1.  Enacted  March  11,  1873,  ^^'l^^^i  examination  Of  jUTors.     See  note 

and    then   read:    "When   thereafter    an    action    is        ante,  s  193. 

§  248.  Counties  having  more  than  one  judge.  In  any  county  having  two 
or  more  judges  of  the  superior  court,  a  separate  panel  of  jurors  may  be 
drawn,  summoned  and  impaneled  for  each  judge,  or  one  panel  may  be  drawn, 
summoned  and  impaneled  by  any  one  of  the  judges  for  use  in  the  trial  of 
cases  before  any  two  or  more  of  the  judges,  as  occasion  may  require.  In 
such  counties,  when  a  panel  of  jurors  is  in  attendance  for  service  before  one 
or  more  of  the  judges,  whether  impaneled  for  common  use  or  not,  the  whole 
or  any  number  of  the  jurors  from  such  panel  may  be  required  to  attend  and 
serve  in  the  trial  of  cases,  or  to  complete  a  panel,  or  jury,  before  any  other 
of  the  judges.  If  one  of  the  judges  has  a  separate  panel  of  jurors,  no  part 
thereof  shall,  without  his  consent,  be  taken  to  serve  before  another  judge. 

Legislation  §  248.     Added     by     Stats.     1907,  box  full   before   exercising   his   peremptory 

p.   680;   the  code  commissioner  saying    "A  new  challenges;    and   the   panel,   if   incomplete, 

section    settling    the    practice    with    reference    to  i_                 i    .     j  j,      '^     ,i       ■    •    i   •          '-          , 

panels  of  jurors  in  the  superior  court  in  counties  may  be  completed  from  the  trial-jury  panel 

having  two  or  more  judges  of  that  court."  summoned   in    another   department   of   the 

Box    must   be   fuU.     A    defendant    in    a  same  superior  court.   People  v.  Loomer,  13 

criminal  case  is  entitled  to  have  the  jury-  Cal.  App.  654;  110  Pac.  466. 

ARTICLE  XI. 
OF  IMPANELING  TEIAL  JURIES  IN  COURTS  NOT  OF  RECORD. 

§  250.     Proceedings  in  forming  jury. 
§  251.     Manner  of  impaneling. 

§  250.  Proceedings  in  forming  jury.  At  the  time  appointed  for  a  jury 
trial  in  justices',  police,  or  other  inferior  courts,  the  list  of  jurors  summoned 
must  be  called,  and  the  names  of  those  attending  and  not  excused  must  be 
written  upon  separate  slips  of  paper,  folded  so  as  to  conceal  the  names,  and 
placed  in  a  box,  from  which  the  trial  jury  must  be  drawn. 


§§  251-259  COURT  COMMISSIONERS.  120 

Legislation  §  250.    1.   Enacted  March  11,  1873  must    be    written   upon    separate    slips    of   paper, 

(based    on    Practice    Act,  §  588),    and    then    read:  folded  so  as  to  conceal  the  names,   and  placed  in 

"At  the  time  appointed  for  a  jury  trial,  in  police  a  box,   from  which  the  trial  jury  may  be   drawn." 
or  justices'    courts,    the   list   of   jurors    summoned  3.   Amended  by  Code  Amdts.  1880,  p.  51. 

must  be  called,  and  the  names  of  those  attending 

§  251.  Manner  of  impaneling.  Thereafter,  if  the  action  is  a  criminal  one, 
the  jury  must  be  impaneled  as  provided  in  the  Penal  Code;  if  a  civil  one, 
as  provided  in  part  two  of  this  code. 

Similar  provision.    See  ante,  §  247.  3.  Re-enacted   by   Code   Amdts.    18S0,   p.   51, 

„  ,  ,,       ,    ,-    -„_r.  in  amending  Part  I. 

Legislation  g  251.    1.  Enacted  March  11,  1873. 

ARTICLE  XII. 
OF  IMPANELING  JURIES  OF  INQUEST. 

§  254.     Manner  of  impaneling. 

§  254.  Manner  of  impaneling.  The  manner  of  impaneling  juries  of  in- 
quest is  prescribed  in  the  provisions  of  the  different  codes  relating  to  such 
inquests. 

Legislation  §  254.  1.  Enacted  March  11,  1873,  stilute  for  the  then  existing  statutes  on  the  same 
and  then  read;  "The  mode  and  manner  of  im-  subject.  We  had  a  jury  law  applicable  to  thirty- 
paneling  juries  of  inquest  are  provided  for  in  three  counties;  another,  entirely  different  in  its 
the  provisions  of  the  different  codes  relating  to  provisions,  applicable  to  sixteen  counties;  and 
such  inquests."  ^''"    another,    differing    from    both,    applicable    to 

2     Amended  bv  Code   Amdts.  1880,  p.  51.  San  Francisco  alone    (Stats.   1861,   p.   57.3;    Stats. 

„   „^„„      r^u  ■  1863,  p.  630;   Stats.   1864,  p.  524);   and  various 

CODE  COMMISSIONERS' NOTE.     The  commis-  statutes  of  local  application, 
eioners  reported  the  preceding  chapter  as  a  sub- 

CHAPTER  II. 

COURT  COMMISSIONERS. 

§  258.    Appointment  and  qualificationa. 
§  259.     Powers  of  court  commissioners. 

§  258.  Appointment  and  qualifications.  The  superior  court  of  every  city 
and  county  in  the  state  may  appoint  six  commissioners,  to  be  designated  each 
as  "court  commissioner"  of  such  city  and  county;  and  the  superior  court  of 
every  other  county  in  the  state  may  appoint  one  commissioner,  to  be  desig- 
nated as  "court  commissioner"  of  such  county.  Such  commissioners  shall 
be  citizens  of  the  United  States,  and  residents  of  the  city  and  county,  or 
county,  in  which  they  are  appointed,  and  hold  offices  during  the  pleasure 
of  the  courts  appointing  them. 

Court  commissioners.    See  Const.,  art.  vi,  §  14.  single  county  are   assigned  to   different   districts, 

■I  av>  then   a   commissioner  may  be  appointed   to  reside 

Legislation  §  258.     1.  Enacted  March  ll,  ^°Jf  in  each  portion  of  the  county  thus  assigned." 
(based    on    Stats.     1863,     p.     338;     Stats.     18b4,  3.   Amended  by  Code  Amdts.  1880,  p.  51. 

T>    2'>91     and  then  read:   "The  district  courts  may 

annoint     for   each   county   of   their  respective   dis-  CODE   COMMISSIONERS'  NOTE.     Stats.  1863, 

tricts    a  commissioner,  to  be  designated  as  'court  p.  338;    Stats.  1864,  p.  229. 
comm'issioner'    of    the    county.      If   portions    of    a 

8  259.  Powers  of  court  commissioners.  Every  court  commissioner  shall 
have  power : 

1.  To  hear  and  determine  ex  parte  motions  for  orders  and  writs,  except 
orders  or  writs  of  injunction  in  the  superior  court  of  the  county,  or  city  and 
county,  for  which  he  is  appointed;  provided,  that  he  shall  have  power  to 
hear  and  determine  such  motions  only  in  the  absence  or  inability  to  act  of 
the  judge  or  judges  of  the  superior  court  of  the  county,  or  city  and  county; 

2.  To  take  proof  and  report  his  conclusions  thereon  as  to  any  matter  of 
fact  other  than  an  issue  of  fact  raised  by  the  pleadings,  upon  which  informa- 
tion is  required  by  the  court ;  but  any  party  to  the  proceedings  may  except 


121 


POWERS  OF  COURT  COMMISSIONERS. 


§259 


to  such  report  within  five  days  after  written  notice  that  the  same  has  been 
filed,  and  may  argue  his  exceptions  before  the  court  on  giving  notice  of 
motion  for  that  purpose ; 

3.  To  take  and  approve  bonds  and  undertakings  whenever  the  same  may 
be  required  in  actions  or  proceedings  in  such  superior  courts,  and  to  exam- 
ine the  sureties  thereon  when  an  exception  has  been  taken  to  their  suffi- 
ciency, and  to  administer  oaths  and  affirmations,  and  take  affidavits  and 
depositions  in  any  action  or  proceeding  in  any  of  the  courts  of  this  state, 
or  in  any  matter  or  proceeding  whatever,  and  to  take  acknowledgments 
and  proof  of  deeds,  mortgages,  and  other  instruments  requiring  proof  or 
acknowledgment  for  any  purpose  under  the  laws  of  this  state ; 

4.  To  charge  and  collect  the  same  fees  for  the  performance  of  official  acts 
as  are  now  or  may  hereafter  be  allowed  by  law  to  notaries  public  in  this 
state  for  like  services;  provided,  that  this  subdivision  shall  not  apply  to  any 
services  of  such  commissioner,  the  compensation  for  which  is  expressly  fixed 
by  law; 

5.  To  provide  an  official  seal,  upon  which  must  be  engraved  the  words 
"court  commissioner"  and  the  name  of  the  county,  or  city  and  county,  in 
which  said  commissioner  resides ; 

6.  To  authenticate  with  his  official  seal  his  official  acts. 


Judicial  powers,  persons  having,  order  enforced 
before.    Ante,  §  128,  subd.  2. 

References  and  triaJs  by  referees.  See  post, 
§§  638  et  seq. 

Subd.  4.  Fees  of  notaries  public.  See  Pol. 
Code,  §  798. 

Justices  of  the  peace  and  court  commissioners 
are  the  only  judicial  oiflcers  authorized  to  receive 
fees.    Const.,  art.  vi,  §  15. 

Subd.  5.     Official  seals,  defined.    See  ante,  §  14. 

Legislation  §  259.  1.  Enacted  March  11,  18T3 
(based  on  Stats.  1863,  p.  338;  Stats.  1864, 
p.  229),  and  then  read:  "Every  such  commis- 
sioner has  power:  1.  To  hear  and  determine 
ex  parte  motions  for  orders  and  writs  (except 
orders  or  writs  of  injunction)  in  the  district  and 
county  courts  of  the  county  for  which  he  is  ap- 
pointed; 2.  To  talce  proof  and  report  his  conclu- 
sions thereon,  as  to  any  matter  of  fact  (other 
than  an  issue  of  fact  raised  in  the  pleadings), 
upon  which  information  is  required  by  the  court ; 
but  any  party  to  the  proceedings  may  except  to 
such  report  within  four  days  after  written  notice 
that  the  same  has  been  filed,  and  may  argue  his 
exceptions  before  the  court,  on  giving  notice  of 
motion  for  that  purpose;  3.  To  take  and  approve 
bonds  and  undertakings  whenever  the  same  may 
be  required  in  actions  or  proceedings  in  such  dis- 
trict and  county  courts,  and  to  examine  the  sure- 
ties thereon  when  an  exception  has  been  taken  to 
their  sufficiency,  and  to  administer  oaths  and 
affirmations,  and  take  affidavits  and  depositions 
in  any  action  or  proceeding  in  any  of  the  courts 
of  this  state,  or  in  any  matter  or  proceeding 
whatever." 

3.  Amended  by  Code  Amdts.  1877-78,  p.  98, 
to  read  as  at  present,  except  that  (1)  the  intro- 
ductory paragraph,  "Every  court  commissioner 
shall  have  power,"  evidently  through  some  error, 
was  omitted;  (2)  in  subd.  1,  (a)  the  words 
"superior  court"  were  then  printed  "district  and 
county  courts,"  (b)  and  the  words  "or  city  and 
county,"  before  "for  which,"  had  not  then  been 
added;  (3)  in  subd.  2,  the  words  "five  days" 
were  printed  "four  days";  (4)  in  subd.  3,  the 
words  "superior  courts"  were  then  printed  "dis- 
trict and  county  courts";  (5)  in  subd.  4,  the 
word  "now"  was  not  used  before  "expressly" ; 
and  (6)  subd.  5  then  read:  "5.  To  provide,  at  the 
expense  of  the  proper  county,  an  official  seal, 
upon  which  must  be  engraved  the  arms  of  this 
state,    the    words    'court    commissioner,'    and    the 


name  of  the  county  in  which  such  commissioner 
resides." 

3.   Amended  by  Code  Amdts.  1880,  p.  51. 

Power  of  court  commissioner.  The  power 
of  a  court  commissioner  cannot  be  enlarged 
by  consent.  Jackson  v.  Puget  Sound  Lum- 
ber Co.,  123  Cal.  97;  55  Pac.  788. 

Ex  parte  motions.  Thie  court  commis- 
sioner has  no  power  to  hear  a  motion 
(Quiggle  V.  Trumbo,  56  Cal.  626),  or  to 
make  an  order  in  reference  to  the  dissolu- 
tion of  an  injunction,  unless  the  court  re- 
fers such  motion  to  him.  Stone  v.  Bunker 
Hill  Copper  etc.  Mining  Co.,  28  Cal.  497. 

Trial  of  issue.  The  court  commissioner, 
as  such,  has  no  authority  to  try  an  issue 
of  fact  raised  in  the  proceedings  (Jackson 
V.  Puget  Sound  Lumber  Co.,  123  Cal.  97; 
55  Pac.  788);  but  the  taking  of  an  account 
by  reference  in  an  action  for  an  account- 
ing, where  the  issue  is  the  plaintiff's  right 
to  an  accounting,  is  not  a  trial  of  an  issue, 
within  the  meaning  of  the  code.  Harris  v. 
San  Francisco  Sugar  Eefining  Co.,  41  Cal. 
393. 

Approval  of  bonds.  The  court  commis- 
sioner has  no  power  to  approve  the  bond 
of  a  receiver,  whom  he  was  without  juris- 
diction to  appoint.  Quiggle  v.  Trumbo,  56 
Cal.  626. 

Administration  of  oaths.  This  is  a  gen- 
eral authority  given  to  executive  and  ju- 
dicial officers,  and  cannot  be  limited  by 
judicial  construction  to  particular  kinds  of 
oaths.  Haile  v.  Smith,  128  Cal.  415;  60 
Pac.  1032. 

Acknowledgments.  Acknowledgments 

may  be  taken  before  the  commissioner. 
Ma'lone  v.  Bosch,  104  Cal.  680;  38  Pac.  516; 
People  V.  Pacific  Improvement  Co.,  130  Cal. 
442;  62  Pac.  739. 


§259 


COURT    COMMISSIONERS. 


122 


p 


CODE  COMMISSIONERS' NOTE.    Slats.  1863,  question    Btated   by    the    court    but   not    decided, 

qqq     SfatR     1864    D    229  Id.      It   was   held,    that   under    the   Practice    Act, 

Subd    1       ''Except  orders,'  or  writs  of  injunc-  §195,    as    it    existed    before    the    code    (compare 

tion-'  the  court  commissioner  has  no  jurisdiction  §   661  of  this  <=°de),  the   court  commissioner  was 

to  hear  motions  relative  to  the  dissolution  of  an  authorized    to    extend    the    time    for    filing    the 

iniunction     Stone  V    Bunker  Hill  Copper  etc.  Min-  statement  on  motion  for  new  trial,,  twenty  days  in 

ni    Co      28    Cal     497.      Whether   an    appeal    may  addition  to  the  five   or  ten   days  given  by  statute, 
be  taken  from  an  order  of  a  court  commissioner  Commissioners  in  eguity  were  purposely  omit- 

dissolving  an  injunction,  without  first  applying  to  ted  by  the  legislature. 
the    district    court    to    correct    the    error,    was    a 


123  MINISTERIAL  OFFICERS   OP  COURTS  OF  JUSTICE.  §§  262-2G3 

TITLE  IV. 
MINISTERIAL  OFFICERS  OF  COURTS  OF  JUSTICE. 

Chapter  I.     Of  Ministerial  Officers  Generally.     §  262. 

II.     Secretaries  and  Bailiffs  of  the   Supreme  Court.     §§265,266. 
III.     Phonographic  Eeporters.     §§  26S-274b. 

CHAPTER  I. 

OF  MINISTEEIAL  OFFICERS  GENERALLY. 
§  262.    Election,  terms,  powers,  and  duties,  where  prescribed. 

§  262.  Election,  terms,  powers,  and  duties,  where  prescribed.  The  modes 
and  times  of  election,  terms,  powers,  and  duties  of  the  attorney-general, 
clerk  of  the  supreme  court,  reporter  of  the  decisions  of  the  supreme  court, 
clerks,  sheriffs,  and  coroners,  are  prescribed  in  the  Political  and  Penal  Codes. 

Attorney-general.    See  Pol.  Code,  §§  470  et  seq.        ing    the    words    (1)    "and    times,"    (2)    "terms," 
Clerk   of   supreme   court.    Pol.   Code,  §§  749    et        and    (3)    "decisions  of  Uie,"   where  they  are  now 
seq.  printed. 

Reporter    of    supreme    court    decisions.       Pol.  ^^tit.   nn-^irKrrac'Tn-Krrf-Da,  xt/mti-ci      -cr       j   »• 

Code   §5  771  et  seq  CODE   COMMISSIONERS'  NOTE.     For  duties 

County  clerks.    Pol.  Code,  §§  4178,   4179.  °^  attorney-general,  see  Pol    Code    §470;   clerk  of 

Sheriffs.    Pol.  Code,  §§  4157  et  seq.;  Pen.  Code,  supreme  court    see  Pol    Code,   §  7o0;   reporter  of 

§§  1216  et  seq.,  1601  et  seq.  ^^V^n%  ""Y^^ao^a    ^a%\^^°^%^  T^'fe"^''     '  ^7 

Coroners.      Pol.    Code,  §§4143    et    seq.;    Pen.        Pol-   ^ode,    §§  4204,   4205;    and   sheriffs,   see   Pol 

Code    §1510  Code,    §4176;    Pen.    Code,    §§1216    et    seq.,    and 

§§  1601  et  seq.;  coroner."?,  see  Pol.  Code,  §§  4285— 
Legislation  §  262.    1.  Enacted  March  11,  1873.        4290,  inclusire;   Pea.  Code,  §  1510. 
2.  Amended  by  Code  Amdts.  18SO,  p.  52,  add- 

CHAPTER  II. 

SECRETARIES  AND  BAILIFFS  OF  THE  SUPREME  COURT. 

§  265.     Appointment. 

§  266.    Tenure  of  office,  and  duties. 

§  265.  Appointment.  The  justices  of  the  supreme  court  may  appoint  two 
secretaries  and  two  bailiffs,  who  shall  be  citizens  of  the  United  States  and  of 
this  state. 

Legislation  §  265.    1.  Enacted  March  11,  1872,        court  may  appoint  a  secretary  and  bailiff." 
and    then    read :     "The    justices    of    the    supreme  3.   Amended  by  Code  Amdts.  1880,  p.  53. 

§  266.  Tenure  of  office,  and  duties.  The  secretaries  and  bailiffs  shall  hold 
their  offices  at  the  pleasure  of  the  .justices,  and  shall  perform  such  duties  as 
may  be  required  of  them  by  the  court  or  any  justice  thereof. 

Legislation  §  266.  1.  Enacted  March  11,  1873,  hold,"  and  "shall  perform"  read  "must  perform." 
and   as   then   enacted   the   words    "secretaries   and  3.   Amended  by  Code  Amdts.  1880,  p.  53. 

bailiffs    shall   hold"    read    "secretary    and    bailiff 

CHAPTER  IIL 
PHONOGRAPHIC  REPORTERS. 

§  268.    Phonographic  reporters  for  supreme  court,  §  272.    Oath  of  office. 

where  provided  for.  §  273.     Reports   prima   facie   correct   statements. 

§  269.     Phonographic       reporters       for      superior  §  274.     Fees. 

courts,  their  appointment,  and  duties.  §  274a.  Transcribing  of  opinions  and  instructions, 
§  270.     Qualifications     and     test     of     competency.  a  county  charge. 

Pro  tempore  reporters.  §  274b.  Fees    and    compensation    of    phonographic 
§  271.     Attention   to   duties.      Reporters  pro   tem-  reporter. 

pore. 

§  268.     Phonographic  reporters  for  supreme  court,  where  provided  for. 

Phonographic  reporters  for  the  supreme  court  are  provided  for  in  part  three 
of  the  Political  Code. 


§269 


PHONOGRAPHIC   REPORTERS. 


124 


Phonographic  reporters  of  supreme  court. 

1.  Salary.    See  Pol.  Code,  §  739. 

2.  Appointment.    See  Pol.  Code,  §  769. 


S.   Duty.     See  Pol.  Code,  §  770. 
Legislation  §   268.       Added    by    Code    Amdts. 
18SO,   p.    53,    in   amending   Part   I. 


§  269.  Phonographic  reporters  for  superior  courts,  their  appointment,  and 
duties.  The  judge  or  judges  of  any  superior  court  in  the  state  may  appoint 
a  competent  phonographic  reporter,  or  as  many  such  reporters  as  there  are 
judges,  to  be  known  as  official  reporter  or  reporters  of  such  court,  and  to 
hold  office  during  the  pleasure  of  the  judge  or  judges  appointing  them. 
Such  reporter,  or  any  one  of  them,  where  there  are  two  or  more,  must,  at  the 
request  of  either  party,  or  of  the  court  in  a  civil"  action  or  proceeding,  and 
on  the  order  of  the  court,  the  district  attorney,  or  the  attorney  for  defend- 
ant in  a  criminal  action  or  proceeding,  take  down  in  shorthand  all  the  testi- 
mony, the  objections  made,  the  rulings  of  the  court,  the  exceptions  taken, 
all  arraignments,  pleas  and  sentences  of  defendants  in  criminal  cases,  the 
arguments  of  the  prosecuting  attorney  to  the  jury,  and  all  statements  and 
remarks  made  and  oral  instructions  given  by  the  judge ;  and  if  directed  by 
the  court,  or  requested  by  either  party,  must,  within  such  reasonable  time 
after  the  trial  of  such  case  as  the  court  may  designate,  write  out  the  same, 
or  such  specific  portions  thereof  as  may  be  requested,  in  plain  and  legible 
longhand,  or  by  typewriter,  or  other  printing-machine,  and  certify  to  the 
same  as  being  correctly  reported  and  transcribed,  and  when  directed  by  the 
court,  file  the  same  with  the  clerk  of  the  court. 


Legislation  §  269.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1865-66,  p.  232),  and  then  read: 
"The  judge  of  each  judicial  district,  and  each 
county  judge,  may  appoint  a  competent  short- 
hand reporter,  to  hold  office  during  the  pleasure 
of  the  judge,  and  who  must,  at  the  request  of 
either  party,  or  in  the  discretion  of  the  court, 
in  a  civil  action  or  proceeding,  or  criminal  action 
or  proceeding,  on  the  order  of  the  court,  the  dis- 
trict attorney,  or  the  counsel  for  the  defendant, 
take  down  in  shorthand  all  the  testimony,  the  rul- 
ings of  the  court,  the  exceptions  taken,  and  oral 
instructions  given,  and  must,  within  five  days, 
or  such  reasonable  time  after  the  trial  of  such 
case  as  the  court  may  designate,  write  out  the 
same  in  plain,  legible,  longhand  writing,  verify 
and  file  it,  together  with  the  original  shorthand 
writing,  with  the  clerk  of  the  court  in  which  the 
case  was  tried.  The  reporter  of  the  county  court 
of  the  city  and  county  of  San  Francisco  is  ex  of- 
ficio reporter  of  the  probate  and  municipal  crim- 
inal court  of  such  city  and  county." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  288, 
to  read:  "The  judge  of  each  court  of  record  may 
appoint  a  competent  shorthand  reporter,  to  hold 
office  during  the  pleasure  of  the  judge.  Such  re- 
porter must,  at  the  request  of  either  party,  or  of 
the  court,  in  a  civil  action  or  proceeding,  and  on 
the  order  of  the  court,  the  district  attorney,  or 
the  counsel  for  the  defendant  in  a  criminal  action 
or  proceeding,  take  down  in  shorthand  all  the 
testimony,  the  objections  made,  the  rulings  of  the 
court,  the  exceptions  taken,  and  oral  instructions 
given,  and  if  directed  by  the  court,  or  requested 
by  either  party,  must  within  such  reasonable  time 
after  the  trial  of  such  case  as  the  court  may 
designate,  write  out  the  same  in  plain  legible 
longhand,  and  verify  and  file  it  with  the  clerk  of 
the  court  in  which  the  case  was  tried." 

3.  Amended  by  Code  Amdts.  1880,  p.  53,  to 
read:  "The  judge  or  judges  of  any  superior  court 
in  the  state  may  appoint  a  competent  phono- 
graphic reporter,  or  as  many  such  reporters  as 
there  are  judges,  to  be  known  as  official  reporter 
or  reporters  of  such  court,  and  to  hold  office  dur- 
ing the  pleasure  of  the  judge  or  judges  appoint- 
ing them.  Such  reporter,  or  any  one  of  them, 
where  there  are  two  or  more,  shall,  at  the  request 
of  either  party,  or  of  the  court  in  a  civil  action 
or  proceeding,  and  on  the  order  of  the  court,  the 
district  attorney,  or  the  attorney  for  defendant 
in  a  criminal  action  or  proceeding,  take  down  in 


shorthand  all  the  testimony,  the  objections  made, 
the  rulings  of  the  court,  the  exceptions  taken, 
and  oral  instructions  given,  and  if  directed  by 
the  court,  or  requested  by  either  party,  shall, 
within  such  reasonable  time  after  the  trial  of 
such  case  as  the  court  may  designate,  write  out 
the  same  in  plain,  legible  longhand,  and  verify 
and  file  it  with  the  clerk  of  the  court  in  which 
the  case  was  tried." 

4.  Amendment  by  Stats.  1901,  p.  122;  un- 
constitutional.    See   note   ante,  §  5. 

5.  Amended  by  stats.  1903,  p.  234. 

Transcription  of  notes.  The  reporter  is 
not  required  by  this  section  to  transcribe 
or  file  his  notes,  until  his  proper  fees  there- 
for have  been  paid  or  tendered  (Eichards 
V.  Superior  Court,  145  Cal.  38;  78  Pac. 
244) ;  but  on  an  appeal  taken  under  §§  953a 
and  953b,  post,  it  is  his  duty  to  make  the 
transcript  within  twenty  days  after  notice 
of  appeal  has  been  given,  and  to  file  such 
transcript  with  the  clerk;  he  cannot  refuse 
to  file  it  because  his  fees  are  unpaid,  as 
he  has  recourse  against  the  sureties  on  the 
undertaking  given  to  secure  the  payment 
of  such  fees.  Gjurich  v.  Fieg,  160  Cal.  331; 
116  Pac.  745.  The  oflicial  stenographer 
need  not  report  the  arguments  of  counsel. 
Kover  v.  Willmon,  12  Cal.  App.  87;  106 
Pac.  599. 

Stenographer  for  grand  jury.  The  grand 
jury  is  authorized  to  appoint,  as  steno- 
graphic reporter,  any  competent  sten- 
ographer; the  one  selected  need  not  be  the 
official  reporter  of  the  superior  court,  ap- 
pointed under  this  section  and  §§  270,  271, 
post.  People  v.  Delhantie,  163  Cal.  461; 
125  Pac.  1066. 

CODE  COMMISSIONEKS' NOTE.  Stats.  1866, 
p.  232.  See  Stats.  1871-72,  p.  400,  "An  act  pro-" 
viding  for  the  appointment  of  a  reporter  in  the 
first  judicial  district  of  this  state,"  approved 
March  16,  1872. 


125  QUALIFICATIONS    AND    TEST    OF    COMPETENCY.  §§  270,  271 

§  270.  Qualifications  and  test  of  competency.  Pro  tempore  reporters.  No 
person  shall  be  appointed  to  the  position  of  official  reporter  of  any  court  in 
this  state,  except  upon  satisfactory  evidence  of  good  moral  character,  and 
without  being  first  examined  as  to  his  competency  by  at  least  three  members 
of  the  bar  practicing  in  said  court,  such  members  to  be  designated  by  the 
judge  or  judges  of  said  court.  The  committee  of  members  of  the  bar  so 
designated  shall,  upon  the  request  of  the  judge  or  judges  of  said  court,  ex- 
amine any  person  as  to  his  qualifications  whom  said  judge  or  judges  may 
wish  to  appoint  as  official  reporter;  and  no  person  shall  be  appointed  to 
such  position  upon  whose  qualifications  such  committee  shall  not  have  re- 
ported favorably.  The  test  of  competency  before  such  committee  shall  be 
as  follows :  the  party  examined  must  write  in  the  presence  of  said  committee 
at  the  rate  of  at  least  one  hundred  and  fifty  words  per  minute,  for  five  con- 
secutive minutes,  upon  matter  not  previously  written  by  or  known  to  him, 
immediately  read  the  same  back  to  the  committee,  and  transcribe  the  same 
into  longhand  writing,  plainly  and  with  accuracy.  If  he  pass  such  test  satis- 
factorily, the  committee  shall  furnish  him  with  a  written  certificate  of  that 
fact,  signed  by  at  least  a  majority  of  the  members  of  the  committee,  which 
certificate  shall  be  filed  among  the  records  of  the  court.  No  official  reporter 
of  any  court  or  official  reporter  pro  tempore  shall  be  competent  to  act  as 
official  reporter  in  any  court  of  the  state  who  shall  have  failed  and  neglected 
to  transcribe  any  notes  in  a  criminal  proceeding  or  action  on  appeal  and 
which  notes  are  required  by  law  to  be  by  him  transcribed  until  he  shall  have 
fully  completed  and  filed  all  transcription  of  his  notes  in  any  criminal  case 
on  appeal  required  by  law  to  be  by  him  transcribed. 

Legislation  §  270.      1.  Added   by   Code   Amdts.  3.   Amended  by  Code  Amdts.  1880,  p.  53,  and 

1873-74,  p.  402,   as  §  272,   and  then  read:    "No  renumbered  §  270,    and    then   read   as    amendment 

person    shall   be    appointed   to,    or   be   retained    in  of    1909,    except    for    the    addition    made    in    that 

the   position   of   official    reporter    of    any   court   in  year. 

this  state,  without  being  first  examined  as  to  his  3.  Amended  by  Stats.  1909,  c.  708,  adding 
competency  by  at  least  three  members  of  the  bar  the  final  sentence,  beginning  "No  ofiicial  re- 
practicing    in    said    court,     such    members    to    be  porter." 

designated  by  the  judge  of  said  court.      The  com-  The  original  §  270    (now  §  273,  post)   made  the 

mittee  so  selected  shall,   upon  the  request  of  the  transcript  of  the   evidence  by  the  reporter  prima 

judge  of  said  court,  examine  any  person  as  to  his  facie  evidence  of  its  correctness, 
qualifications   whom   said   judge  may   wish   to   ap- 
point or  retain  as  official  reporter,  and  no  person  Qualifications  of  reporter.     Tliis  section 

shall  be  appointed  to,  or  retained  in  such  posi-  relates   exclusively  to   the   official   reporter 

tion.    whose    qualifications    said    committee    shall  _»  .  i.  i    i,  t      i.-    „ 

not  have  reported  favorably.     The  test  of  compe-  of  superior  courts,  and  has  no  application 

tency  before  such  committee  shall  be  as  follows:  to    reporters    appointed   by   magistrates    at 

The  party  examined  must  write,  in  the  presence  preliminary  examination;    in  that   case  the 

of  said  committee,  at  the  rate  of  at  least  one  hun-  '■     ,  r  .  •        xi.    i.    u       i,  ,„       j. j. 

dred    and    forty   words    per    minute    for    five    con-  onlj    provision    IS,    that    he    be    competent, 

secutive     minutes,     upon     matter    not    previously  People   V.    Mclntyre,    127    Cal.    423;    59   Pac. 

written    by    him,    and    transcribe    the    same    into  779.    People    V.    Nunley,    142    Cal.    441;    76 

longhand  writing  with  accuracy.      If  he  pass  said  -p'\n    4.=! 

test    satisfactorily,    the    committee    shall    furnish  J:  ac.  'to. 

him  with  a  written  certificate  of  that  fact,  signed  Stenographer  for  grand  jury.    See  note 

by    at    least    a    majority    of    the    members    of    the         ante    §  269. 
committee,   which  certificate   shall  be  filed   in  the  ' 

records  of  the  court." 

§  271.  Attention  to  duties.  Reporters  pro  tempore.  The  official  reporter 
of  any  superior  court  shall  attend  to  the  duties  of  his  office  in  person,  except 
when  excused  for  good  and  sufficient  reason  by  order  of  the  court,  which 
order  shall  be  entered  upon  the  minutes  of  the  court.  Employment  in  his 
professional  capacity  elsewhere  shall  not  be  deemed  a  good  and  sufficient 
reason  for  such  excuse.  When  the  official  reporter  of  any  court  has  been 
excused  in  the  manner  provided  in  this  section,  the  court  may  appoint  an 
official  reporter  pro  tempore,  who  shall  perform  the  same  duties  and  receive 
the  same  compensation  during  the  term  of  his  employment  as  the  official 
reporter. 


§§  272-274 


PHONOGRAPHIC    REPORTERS. 


126 


Legislation  8  271.  1.  Added  by  Code  Amdts. 
1873-74,  p.  401,  as  §  273. 

3.  Amended  bv  Code  Amdts.  1880,  p.  54,  and 
(1)  renumbered  §  271  ;  (2)  in  the  first  line.the 
words  "superior  court  shall"  changed  from  "dis- 
trict court  must";  (3)  the  article  "a"  omitted 
before  "good  and";  (4)  the  words  "judge  of 
said"  omitted  before  "court  may  appoint";  and 
(5)  the  phraseology  after  the  word  "compensa- 
tion" changed  from  "as  the  official  reporter,  and 
whose  report  shall  have  the  same  legal  effect  as 
the  report  of  the  official  reporter." 

The  original  §  271  (now  §  274,  post)  was  based 


on  Stats.  1868,  p.  45,  and  provided  for  coinpensa- 
tion  of  reporters,  and  was  repealed  by  Code 
Amdts.    1880,   p.   21,   in   amending  Part   I. 

Duties  of  reporter.  The  only  duties  de- 
volving upon  an  official  reporter  are  pre- 
scribed by  this  section.  People  v.  Lon  Me, 
49  Cal.  353;  Charnock  v.  Eose,  70  Cal.  189; 
llPae.  625. 

Application  of  section.  See  note  ante, 
§270. 


§ 


272.  Oath  of  ofl&ce.  The  official  reporter  of  any  court,  or  official  re- 
porter pro  tempore,  shall,  before  entering  upon  the  duties  of  his  office,  take 
and  subscribe  the  constitutional  oath  of  office. 

Application  of  section.     This  section  has 


Legislation  §  272.  1.  Added  bv  Code  Amdts. 
1S73-74,  p.  403,  as  §  274,  and  then  read:  "The 
official  reporter  of  any  court,  or  official  reporter 
pro  tern.,  must,  before  entering  on  the  duties  of 
his  office,  take  and  subscribe  the  following  oath: 
'I  do  swear  (or  affirm)  that  I  will  support  the 
constitution  of  the  United  States  and  the  consti- 
tution of  the  state  of  California,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of  offi- 
cial   reporter    (or    official    reporter    pro    tem.)     of 

the    court,    according    to    the    best    of    my 

ability.'  " 

3.  Amended  by  Code  Amdts.  1880,  p.  54,  and 
renumbered  §  272. 

The  original  §  272  (now  §  270,  ante)  provided 
for  examination  of  official  reporters. 


no  application  to  a  reporter  appointed  by 
a  magistrate  at  a  preliminary  examination. 
People  V.  Nunley,  142  Cal.  441;  76  Pac.  45. 
Oath  of  office.  The  official  reporter  is  an 
officer  of  the  court,  and  is  required  to  take 
the  oath  of  office  (Ex  parte  Eeis,  64  Cal. 
233;  30  Pac.  806);  which  oath  is  for  all 
cases,  and  not  for  a  particular  case,  in 
which  he  may  take,  transcribe,  and  certify 
the  testimony  and  proceedings.  Keid  v. 
Eeid,  73  Cal.  206;  14  Pac.  781. 


§  273.  Reports  prima  facie  correct  statements.  The  report  of  the  official 
reporter,  or  official  reporter  pro  tempore,  of  any  court,  duly  appointed  and 
sworn,  when  transcribed  and  certified  as  being  a  correct  transcript  of  the 
testimony  and  proceedings  in  the  case,  is  prima  facie  evidence  of  such  testi- 
mony and  proceedings. 

prima  facie  evidence  in  felony  cases,  in 
certain  counties;  it  was,  however,  held  that 
such  notes  were  only  prima  facie  evidence 
in  the  court  where  taken,  and  could  not 
be  considered  in  the  supreme  court.  People 
V.  Woods,  43  Cal.  176;  People  v.  Armstrong, 
44  Cal.  326.  In  criminal  actions,  a  tran- 
script of  the  reporter's  notes,  certified  and 
filed  as  provided  by  law  for  the  authenti- 
cation of  the  testimony  of  witnesses  at  pre- 
liminary examinations,  is  placed  upon  the 
same  footing  as  depositions,  and  is  admis- 
sible in  like  eases.  People  v.  Grundell,  75 
Cal.  301;  17  Pac.  214;  Mattingly  v.  Nich- 
ols, 133  Cal.  332;  65  Pac.  748.  In  the 
settlement  of  a  bill  of  exceptions,  the  judge 
may  insert  therein  the  instructions  to  the 
jury  as  actually  given  by  him,  if  the  re- 
porter's transcription  thereof  is  incorrect. 
as  such  transcription  is  only  prima  facie 
evidence.  People  v.  Cox,  76  Cal.  281;  18 
Pac.  332;  People  v.  Leary,  105  Cal.  486;  39 
Pac.  24.  No  further  identification  is  re- 
quired, where  it  is  admitted  that  the  tran- 
script contains  a  correct  statement  of  the 
testimony.  Carpenter  v.  Ashley,  15  Cal. 
App.  461;  115  Pac.  268. 

CODE   COMMISSIONEES'  NOTE.     Stats.  1866, 
p.  232. 


Legislation  §  273.  1.  Enacted  March  11,  1872, 
as  §  270  (based  on  Stats.  1865-66,  p.  232),  and 
read:  "His  report,  written  out  in  longhand  'writ- 
ing, is  prima  facie  a  correct  statement  of  the 
evidence   and  proceedings." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  400, 
to  read:  "The  report  of  the  official  reporter, 
when  appointed  and  acting  in  accordance  with  the 
provisions  of  sections  two  hundred  and  seventy- 
two  and  two  hundred  and  seventy-three  of  this 
code,  and  not  otherwise,  written  out  in  longhand 
writing,  and  certified  as  being  a  correct  tran- 
script of  the  testimony  and  proceedings  in  the 
case,  shall  be  prima  facie  a  correct  statement  of 
such  testimony  and  proceedings." 

3.  Amended  by  Code  Amdts.  1880,  p.  54,  re- 
numbered §  273,  and  then  read:  "The  report  of 
the  official  reporter,  or  official  reporter  pro  tem- 
pore, of  any  court,  duly  appointed  and  sworn, 
when  written  out  in  longhand  writing  and  certi- 
fied as  being  a  correct  transcript  of  the  testimony 
and  proceedings  in  the  case,  shall  be  prima  facie 
a  correct  statement  of  such  testimony  and  pro- 
ceedings." 

4.  Amendment  by  Stats.  1901,  p.  123;  un- 
constitutional.    See   note   ante,  §  5. 

5.  Amended  by  Stats.  1903,  p.  234. 

Transcription  is  evidence.  Prior  to  the 
amendment  of  this  section,  the  reporter's 
notes  were  not  prima  facie  evidence  of  the 
testimony,  but  only  "prima  facie  a  correct 
statement"  of  the  evidence.  Eeid  v.  Eeid, 
73  Cal.  206;  14  Pac.  781;  Estate  of  Benton, 
131  Cal.  472;  63  Pac.  775.  Before  the  en- 
actment of  the  code,  by  Stats.  1867-68, 
p.    425,    the    reporter's    notes    were    made 


§  274.     Fees.     For  his  services,  the  official  reporter  shall  receive  the  fol- 
lowing fees,  except  in  counties  where  a  statute  provides  otherwise : 


127 


FEES. 


§274 


For  reporting  testimony  and  proceedings,  ten  dollars  per  day,  which 
amount,  when  more  than  one  case  is  reported  in  one  day,  must  be  appor- 
tioned by  the  court  between  the  several  eases ; 

For  transcription,  for  one  copy,  twenty  cents  per  hundred  words ;  for  two 
copies  made  at  one  time,  fifteen  cents  each  per  hundred  words;  for  three 
copies  made  at  one  time,  eleven  cents  each  per  hundred  words;  for  four 
copies  made  at  one  time,  nine  cents  each  per  hundred  words ;  and  for  five  or 
more  copies  made  at  one  time,  eight  cents  each  per  hundred  words. 

In  criminal  cases,  the  fees  for  reporting  and  for  transcripts  ordered  by  the 
court  to  be  made  must  be  paid  out  of  the  county  treasury  upon  the  order  of 
the  court;  provided,  that  when  there  is  no  official  reporter  in  attendance, 
and  a  reporter  pro  tempore  is  appointed,  his  reasonable  expenses  for  travel- 
ing and  detention  must  be  fixed  and  allowed  by  the  court  and  paid  in  like 
manner. 

In  civil  cases,  the  fees  for  reporting  and  for  transcripts  ordered  by  the 
court  to  be  made  must  be  paid  by  the  parties  in  equal  proportions,  and  either 
party  may,  at  his  option,  pay  the  whole  thereof;  and,  in  either  case,  all 
amounts  so  paid  by  the  party  to  whom  costs  are  awarded  must  be  taxed  as 
costs  in  the  case.  The  fees  for  transcripts  and  copies  ordered  by  the  parties 
must  be  paid  by  the  party  ordering  the  same.  No  reporter  must  be  required 
to  perform  any  service  in  a  civil  case  until  his  fees  therefor  have  been  paid 
to  him  or  deposited  with  the  clerk  of  the  court. 

which  have  accrued  up  to  the  time  of  the  dis- 
charge of  the  jury.  In  cases  where  a  transcript 
has  been  ordered  by  the  court,  the  expense 
thereof  must  be  paid  equally  by  the  respective 
parties  to  the  action,  or  either  of  them,  in  the 
discretion  of  the  court;  and  no  verdict  or  judg- 
ment can  be  entered  up,  except  the  court  shall 
otherwise  order,  until  the  reporter's  fees  are 
paid,  or  a  sum  equivalent  thereto  deposited  with 
the  clerk  of  the  court.  In  no  case  shall  a  tran- 
script be  paid  for,  unless  ordered  by  either  the 
plaintiff  or  defendant,  or  by  the  court,  nor  shall 
the  reporter  be  required,  in  any  civil  case,  to 
transcribe  his  notes,  until  the  compensation 
therefor  be  tendered  him,  or  deposited  in  court 
for  that  purpose.  The  party  ordering  the  re- 
porter to  transcribe  any  portion  of  the  testimony 
or  proceedings,  shall  pay  the  fees  of  the  reporter 
therefor.  In  criminal  cases,  when  the  testimony 
has  been  taken  down  upon  the  order  of  the 
court,  the  compensation  of  the  reporter  must  be 
fixed  by  the  court,  and  paid  out  of  the  treasury 
of  the  county  in  which  the  case  is  tried,  upon 
the  order  of  the  court." 

3.  Amended  by  Code  Amdts.  1880,  p.  54, 
renumbered  §  274,  and  then  read:  "The  official 
reporter  shall  receive,  as  compensation  for  his 
services  in  civil  actions  and  proceedings  for  tak- 
ing notes,  a  sum,  to  be  fixed  by  the  court  or 
a  judge  thereof,  not  exceeding  ten  dollars  per 
day,  and  for  transcription  a  sum  to  be  in  like 
manner  fixed  not  exceeding  twenty  cents  per 
hundred  words;  provided,  that  when  said  re- 
porter performs  services  in  taking  notes  in  more 
than  one  cause  on  the  same  day,  the  court  or 
judge  thereof  shall  apportion  to  per  diem  allowed 
between  the  several  actions  or  proceedings  in 
which  such  notes  are  taken.  The  shorthand 
notes  so  taken  shall  immediately  after  the  cause 
is  submitted  be  filed  with  the  clerk,  but  for 
the  purpose  of  writing  out  said  notes  the  re- 
porter may  withdraw  the  same  for  a  reasonable 
time.  The  reporter's  fees  for  taking  notes  in 
civil  cases  shall  be  paid  by  the  party  in  whose 
favor  judgment  is  rendered,  and  shall  be  taxed 
up  by  the  clerk  of  the  court  as  costs  against 
the  party  against  whom  judgment  is  rendered. 
In  case  of  the  failure  of  a  jury  to  agree,  the- 
plaintiff    must    pay    the    reporter's    fees    for    timo- 


Legislation  S  274.  1.  Enacted  March  11,  1873. 
as  §  271  (based  on  Stats.  1867-68,  p.  455),  and 
then  read:  "He  shall  receive,  as  compensation 
for  his  services,  not  exceeding  ten  dollars  per 
day  for  taking  notes,  and  not  exceeding  twenty 
cents  per  folio  for  transcription,  to  be  paid  by 
the  party  in  whose  favor  judgment  is  rendered, 
and  be  taxed  up  by  the  clerk  of  the  court  as 
costs  against  the  party  against  whom  judgment 
is  rendered.  In  case  of  failure  of  a  jury  to 
agree,  the  plaintiff  must  pay  the  reporter's  fees 
accrued  to  that  time.  In  cases  where  a  tran- 
script may  be  required  by  the  court,  the  expense 
thereof  must  be  paid  equally  by  the  respective 
parties  to  the  action,  or  either  of  them,  in  the 
discretion  of  the  court;  and  no  verdict  or  judg- 
ment can  be  entered  up,  except  the  court  shall 
otherwise  order,  until  the  reporter's  fees  are  paid, 
or  a  sum  equivalent  thereto  deposited  with  the 
clerk  of  the  court.  In  no  case  shall  the  tran- 
script be  paid  for  unless  specially  ordered  by 
either  plaintiff  or  defendant,  or  by  the  court; 
nor  shall  the  reporter  be  required,  in  any  civil 
case,  to  transcribe  his  notes  until  the  compensa- 
tion per  folio  therefor  be  tendered  to  him  or  de- 
posited in  court  for  that  purpose.  In  criminal 
cases,  when  the  testimony  has  been  taken  down 
by  order  of  the  court,  the  compensation  of  the 
reporter  must  be  fixed  by  the  court  and  paid  out 
of  the  treasury  of  the  county  in  which  the  case 
is  tried,   upon  the  order  of  the  court." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  400, 
to  read:  "The  official  reporter  shall  receive  as 
compensation  for  his  services  in  civil  proceed- 
ings, not  exceeding  ten  dollars  per  day  for  tak- 
ing notes,  and  not  exceedins  twenty  cents  per 
hundred  words  for  transcription.  The  short- 
hand notes  so  taken  sh.nll,  immediately  after  the 
cause  is  submitted,  be  filed  with  the  clerk;  but, 
for  the  purpose  of  writing  out  said  notes,  the 
reporter  may  withdraw  the  same  for  a  reason- 
able time.  The  reporter's  fees  for  taking  notes 
in  civil  cases  shall  be  paid  by  the  party  in  whose 
favor  judgment  is  rendered,  and  shall  be  taxed 
up  by  the  clerk  of  the  court  as  costs  against 
the  party  against  whom  judgment  is  rendered. 
In  case  of  the  failure  of  a  jury  to  agree,  the 
plaintiff  must  pay  the  reporter's  fees,  for  per 
diem,   and   for   transcription   ordered  by   plaintiff, 


274 


PHONOGRAPHIC    REPORTERS. 


128 


employed,  and  for  transcription  ordered  by  plain- 
tiff which  have  accrued  up  to  the  time  of  the 
discharge  of  the  jury.  In  cases  where  a  tran- 
script has  been  ordered  by  the  court,  the  fees 
for  transcription  must  be  paid  by  the  respective 
parties  to  the  action  in  equal  proportions,  or  by 
such  of  them  and  in  such  proportions  as  the 
court,  in  its  discretion,  may  order;  and  no  ver- 
dict or  judgment  shall  be  entered  up,  except  the 
court  shall  otherwise  order,  until  the  reporter's 
fees  are  paid,  or  a  sum  equivalent  thereto  de- 
posited with  the  clerk  of  the  court  therefor.  In 
no  case  shall  a  transcript  be  paid  for  unless 
ordered  either  by  the  plaintiff  or  defendant,  or 
by  the  court;  nor  shall  the  reporter  be  required 
in  any  civil  case  to  transcribe  his  notes  until  the 
fees  therefor  be  tendered  him,  or  a  sufficient 
amount  to  cover  the  same  be  deposited  in  court 
for  that  purpose.  The  party  ordering  the  re- 
porter to  transcribe  any  portion  of  the  testimony 
or  proceedings,  must  pay  the  fees  of  the  rejjorter 
therefor.  In  criminal  cases,  when  the  testimony 
has  been  taken  down  or  transcribed  upon  the 
order  of  the  court,  the  fees  of  the  reporter  shall 
be  certified  by  the  court,  and  paid  out  of  the 
treasury  of  the  county,  or  city  and  county,  in 
which  the  case  is  tried,  upon  the  order  of  the 
court." 

4.  Amended  by  Stats.  1885,  p.  218,  to  read: 
"The  official  reporter  shall  receive  as  compensa- 
tion for  his  services  a  monthly  salary,  to  be 
fixed  by  the  judge  by  an  order  duly  entered  on 
the  minutes  of  the  court,  which  salary  shall  be 
paid  out  of  the  treasury  of  the  county  in  the 
same  manner  and  at  the  same  time  as  the  sala- 
ries of  county  officers;  provided,  that  said 
monthly  salary  for  each  superior  court,  or  de- 
partment thereof,  shall  not  exceed  the  follow- 
ing maximum:  In  counties  having  a  population 
of  one  hundred  thousand  and  over,  three  hun- 
dred dollars;  in  counties  having  a  population 
less  than  one  hundred  thousand  and  exceeding 
fifty  thousand,  two  hundred  and  seventy-five  dol- 
lars; in  counties  having  a  population  less  than 
fifty  thousand  and  exceeding  thirty  thousand, 
two  hundred  and  fifty  dollars;  in  counties  hav- 
ing a  population  less  than  thirty  thousand  and 
exceeding  twenty  thousand,  two  hundred  and 
twenty-five  dollars ;  in  counties  having  a  popula- 
tion less  than  twenty  thousand  and  exceeding  fif- 
teen thousand,  two  hundred  dollars;  in  counties 
having  a  population  less  than  fifteen  thousand 
and  exceeding  twelve  thousand  five  hundred,  one 
hundred  and  seventy-£ve  dollars;  in  counties 
having  a  population  less  than  twelve  thousand 
five  hundred  and  exceeding  ten  thousand,  one 
hundred  and  fifty  dollars;  in  counties  having  a 
population  less  than  ten  thousand  and  exceeding 
seven  thousand  five  hundred,  one  hundred  and 
twenty-five  dollars;  in  counties  having  a  popula- 
tion less  than  seven  thousand  five  hundred  and 
exceeding  five  thousand,  one  hundred  dollars; 
and  in  counties  having  a  population  less  than 
five  thousand,  seventy-five  dollars ;  and,  further 
provided,  that  where  both  parties  to  a  civil 
action,  or  either,  require  the  testimony  therein 
to  be  written  out  in  full  as  the  trial  progresses, 
the  official  reporter  shall  be  allowed  the  extra 
expense  occasioned,  to  be  audited  by  the  judge, 
and  paid  by  the  party  or  parties  ordering  the 
same;  provided  further,  that  in  departments  of 
superior  courts  devoted  exclusively  to  the  trial 
of  criminal  cases,  the  judge  of  the  court  shall, 
in  addition,  fix  and  allow  a  reasonable  com- 
pensation for  the  transcription  of  testimony,  to 
be  paid  out  of  the  county,  or  city  and  county, 
treasury,  upon  the  order  of  the  judge.  In  civil 
cases  in  which  tlie  testimony  is  taken  down  by 
the  official  reporter,  each  party  shall  pay  a  per 
diem  of  two  dollars  and  fifty  cents  before  judg- 
ment or  verdict  therein  is  entered ;  and  where 
the  testimony  is  transcribed,  the  party  or  par- 
ties ordering  it  shall  pay  ten  cents  per  folio 
for  such  transcription  on  delivery  thereof;  said 
per  diem  and  transcription  fees  to  be  paid  to 
the  clerk  of  the  court,  and  by  him  paid  into  the 
treasury  of  the  county,  and  such  portion  as  shall 
be  paid  by  the  prevailing  party  may  be  taxed 
as  costs  in  the  case.  Where  there  is  no  regular 
official    reporter,     and    one    is    appointed    tempo- 


rarily by  the  court,  he  shall  receive  for  his  ser- 
vices and  expenses  of  attendance,  in  lieu  of  the 
salary  provided  in  this  section,  such  compensa- 
tion as  the  court  may  deem  reasonable ;  to  be 
paid,  if  a  civil  case,  by  both  parties,  or  either 
of  them,  as  the  judge  shall  direct;  and,  if  a 
criminal  case,  to  be  paid  out  of  the  treasury  of 
the  county  on  the  order  of  the  court." 

5.  Amendment  by  Stats.  1901,  p.  123;  un- 
constitutional.    See   note   ante,  §  5. 

6.  Amended  by  Stats.  1903,  p.  234. 

Compensation  of  reporters.  The  amend- 
ment of  1885  provided  that  the  compensa- 
tion of  a  reporter  should  be  by  monthly 
salary,  fixed  by  the  judge;  but  this  was 
declared  unconstitutional,  as  imposing 
legislative  functions  upon  the  judiciary. 
Smith  V.  Strother,  68  Cal.  194;  8  Pac.  852; 
McAllister  v.  Hamlin,  83  Cal.  361;  23  Pac. 
357;  Dwyer  v.  Parker,  115  Cal.  544;  47  Pac. 
372;  Taylor  v.  McConigle,  120  Cal.  123; 
52  Pac.  159;  Los  Angeles  v.  Pomeroy,  124 
Cal.  597;  57  Pac.  585;  Stevens  v.  Truman, 
127  Cal.  155;  59  Pac.  397.  The  provision 
in  the  County  Government  Act,  fixing  the 
salary  of  ofllcial  reporters,  is  invalid,  for 
the  reason  that  it  is  not  germane  to  the 
title  of  the  act,  which  was  to  create  a 
"uniform  system  of  county  government." 
Pratt  v.  Browne,  135  Cal.  649;  67  Pac.  1082. 

OflBcial  reporters.  The  term  "official  re- 
porters" means,  only  reporters  appointed 
by  the  superior  court,  and  acting  under 
their  oath  of  office.  Fox  v.  Lindley,  57 
Cal.  650. 

Transcription  ordered  by  court.  Where 
the  transcript  is  ordered  by  the  court,  it 
must  be  paid  for  by  the  losing  party,  and 
becomes  a  necessary  part  of  the  disburse- 
ments of  the  successful  party.  Barkly  v. 
Copeland,  86  Cal.  483;  25  Pac.  1,  405. 
Money  paid  to  the  reporter  for  a  transcript 
of  the  evidence  is  not  recoverable  as  costs, 
unless  made  under  an  order  directing  the 
transcription.  Blair  v.  Brownstone  Oil  etc. 
Co.,  20  Cal.  App.  316;  128  Pac.  1022. 

Transcription  in  criminal  cases.  The 
compensation  for  transcribing  in  criminal 
actions  is  to  be  fixed  by  the  court,  and  is  a 
charge  against  the  county.  Ex  parte  Reis, 
64  Cal.  233;  30  Pac.  806;  Boys'  and  Girls' 
Aid  Society  v.  Eeis,  71  Cal.  627;  12  Pac. 
796;  McAllister  v.  Hamlin,  83  Cal.  361;  23 
Pac.  357;  Ex  parte  Widber,  91  Cal.  367;  27 
Pac.  733.  The  superior  court  has  power  to 
fix  and  order  paid  the  compensation  of  a 
reporter  in  criminal  actions  (Ex  parte  Eeis, 
64  Cal.  233;  30  Pac.  806),  and  to  compel  the 
treasurer,  by  mandamus,  to  pay  the  same, 
wherever  funds  are  applicable  to  the  pay- 
ment thereof  (Stevens  v.  Truman,  127  Cal. 
155;  59  Pac.  397;  Ex  parte  Eeis,  64  Cal. 
233;  30  Pac.  806;  Boys'  and  Girls'  Aid 
Society  v.  Eeis,  71  Cal.  627;  12  Pac.  796; 
Ex  parte  Widber,  91  Cal.  367;  27  Pac.  733) ; 
and  if,  in  a  proper  case,  the  treasurer  re- 
fuses to  pay,  he  is  guilty  of  contempt  (Ex 
parte  Truman,  124  Cal.  387;  57  Pac.  223); 
but  this  section  does  not  authorize  the  pay-  . 
ment  of  traveling  expenses  of  the  reporter. 


129  TRANSCRIBING   OP   OPINIONS  AND   INSTRUCTIONS.         §^  274a,  274b 

Irrgang  v.   Ott,  9   Cal.   App.  440;   99   Pac.  Co.,  20  Cal.  App.  316;  128  Pac.  1022);  nor 

528.     A  statute  authorizing  a  stenographer,  has  the  court  power  to  tax,  as  costs,  fees 

in  counties  of  the  twenty-seventh  class,  to  for  the   transcription   of   testimony,  where 

be  appointed  by  the  judge  of  the  superior  the  judgment  was  reversed  on  appeal  upon 

court  to  report  the  proceedings  at  prelim-  the  judgment  roll,   without  such  transcrip- 

inary  examinations  and  coroner's  inquests,  tion  having  been  used,  and  where  the  ap- 

at    a    salary    of    one    hundred    dollars    per  peal  from  the  order  denying  a  motion  for 

month,  to  be  paid  out  of  the  county  treas-  a   new   trial   was   not   perfected.    Dank   of 

ury,  is  unconstitutional.   Payne  v.  Murphy,  "Woodland  v.  Hiatt,  59  Cal.  580. 

18  Cal.  App.  446;  123  Pac.  350.     The  power  Fee    for   transcription.     See    note    ante, 

of  the  legislature   to   classify   counties  by  §  269. 

population  is  a  power  to  be  exercised  for  Per  diem  of  reporters.  The  court  has  no 
the  limited  purpose  of  enabling  the  com-  power,  by  rule,  to  require  the  per  diem  of 
pensation  of  the  various  officers  to  be  fixed  reporters  to  be  paid,  one  half  by  each  of 
and  adjusted.  Id.  the  parties,  before  the  witnesses  are  exam- 
Transcription  ordered  by  district  attor-  ined  (Meacham  v.  Bear  Valley  Irrigation 
ney.  This  section  is  not  a  limitation  on  Co.,  145  Cal.  606;  68  L.  R.  A.  600;  79  Pac. 
the  power  of  the  district  attorney  to  order  281);  nor,  prior  to  the  amendment  of  1903, 
a  transcript  of  the  testimony  in  criminal  where  the  reporter  voluntarily  took  the  tes- 
cases  at  the  expense  of  the  county.  Yolo  timony  without  requiring  a  deposit,  had 
County  v.  Joyce,  156  Cal.  429;  105  Pac.  125.  the  judge  power,  after  judgment  entered, 
Transcription  ordered  by  party.  Where  to  refuse  to  settle  the  case  until  the  re- 
the  transcription  is  ordered  by  a  party,  and  porter's  fees  were  paid.  James  v,  McCann, 
furnished  at  an  agreed  rate  of  compensa-  93  Cal.  513;  29  Pac.  49. 

tion,    it    cannot    be    taxed     as    costs    (Los  cODE  COIMMISSIONEES' NOTE.    Stats.  1868. 

Angeles  v.  Pomeroy,  124  Cal.  o97;  57  Pac.  p.  455. 
585;  and  see  Blair  v.  Brownstone  Oil  etc. 

§  274a.     Transcribing   of   opinions    and  instructions,    a    county   charge. 

Judges  of  the  superior  court  may  have  any  opinion  given  or  rendered  by 
such  judge  in  the  trial  of  any  action  or  proceeding,  pending  in  such  court, 
or  any  instructions  to  be  given  by  such  court  to  the  jury,  or  any  necessary 
order,  petition,  citation,  commitment  or  judgment  in  any  insanity  proceed- 
ing, probate  proceeding,  proceeding  concerning  new  or  additional  bonds  of 
county  officials,  or  juvenile  court  proceeding,  taken  down  in  shorthand  and 
transcribed  by  the  official  reporter  of  such  court ;  but  if  there  be  no  official 
reporter  for  such  court,  then  by  any  competent  stenographer  or  typewriter, 
(he  cost  thereof  to  be  a  legal  charge  against  the  county,  payable  out  of  the 
general  fund  in  the  county  treasury  in  the  same  manner  as  any  other  claims 
against  the  county,  when  properly  approved  by  the  said  judge  so  ordering 
the  same. 

Legislation  §  274a.      1.   Added  by  Stats.  1907,  citation,  commitment  or  judgment  in  any  insanity 

p.   15,  proceeding,    probate    proceeding,    proceeding    con- 

3.   Amended   by    Stats.    1911,    p.    499,    adding  cerning   new    or   additional    bonds    of   county   offi- 

in  the  first  clause,   after  "given  by  such  court  to  cials,   or  juvenile   court  proceeding." 
the    jury,"     "or     any     necessary     order,     petition, 

§  274b.  Fees  and  compensation  of  phonographic  reporter.  The  phono- 
graphic reporter  shall  receive  for  making  an  original  and  three  carbon 
copies  of  the  portion  of  his  notes  ordered  transcribed,  or  transcribed  in  any 
criminal  case  after  sentence,  the  sum  of  thirty  cents  per  folio;  provided, 
however,  that  he  shall  receive  no  compensation  for  transcribing  any  notes 
unless  the  same  shall  have  been  transcribed  by  him  within  the  time  provided 
by  law. 

Legislation  §  274b.     Added    by    Stats.    1909, 
e.  708. 

1  Fair.— 9 


§275 


ATTORNEYS  AND  COUNSELORS  AT  LAW. 


130 


TITLE  V. 

PERSONS  SPECIALLY  INVESTED  WITH  MINISTERIAL  POWERS  RE- 
LATING  TO  COURTS  OF  JUSTICE. 

Chapter  I.     Attorneys  and  Counselors  at  Law.     §§  275-299. 

H.     Other  Persons  Invested  with  Such  Powers,     §  304. 


CHAPTER  L 

ATTORNEYS  AND  COUNSELORS  AT  LAW. 


§  275.    Who  maybe  admitted  as  attorneys. 

§  276.     Qualifications. 

§  277.    Certificate  of  admission  and  license. 

§  278.     Oath. 

§  279.     Attorneys  of  other  states. 

§  280.     Roll  of  attorneys. 

§  280a.  Effect    of    diploma    granted    by    Hastings 

College  of  the  Law. 
§  280b.  Admission    to    practice    law    on    diplomas 

from  certain  universities. 
§  281.     Penalty  for  practicing  without  license. 
§  282.     Duties. 
§  283.     Authority. 
§  284.     Change  of  attorney. 
§  285.     Notice  of  change. 


286.  Death  or  removal  of  attorney. 

287.  Causes   for   which   court   may  remove   at- 

torney. 

288.  Conviction  of  felony. 

289.  Proceedings  for  removal  or  suspension. 

290.  Accusation. 

291.  Verification. 

292.  Citation  of  accused  by  publication. 

293.  Appearance. 

294.  Objections  to  accusation. 

295.  Demurrer. 

296.  Answer. 

297.  Trial. 

298.  Reference  to  take  depositions. 

299.  Judgment. 


See    sections    immediately 


§  275.  Who  may  be  admitted  as  attorneys.  Any  citizen  or  person  resi- 
dent of  this  state,  who  has  bona  fide  declared  his  or  her  intention  to  become 
a  citizen  in  the  manner  required  by  law,  of  the  age  of  twenty-one  years,  of 
good  moral  character,  and  who  possesses  the  necessary  qualifications  of 
learning  and  ability,  is  entitled  to  admission  as  attorney  and  counselor  in  all 
the  courts  of  this  state.  All  persons  are  attorneys  of  the  supreme  court  who 
were  on  the  first  day  of  January,  eighteen  hundred  and  eighty,  entitled  to 

practice  in  the  court  superseded  thereby. 

entitled  to  be  admitted  as  attorneys,  upon 
the  same  terms  as  males.  Foltz  v.  lioge, 
54  Cal.  28. 

Eight  to  practice  law.  The  right  to 
practice  law  is  not  a  natural  or  a  constitu- 
tional right,  but  a  statutory  privilege, 
subject  to  legislative  control  (Application 
of  Guerrero,  69  Cal.  88;  10  Pac.  261;  Ex 
parte  Eraser,  54  Cal.  94;  Ex  parte  John- 
Bon,  62  Cal.  263) ;  neither  is  it  a  contract, 
nor  a  property  right,  within  the  meaning 
of  the  constitution.  Cohen  v.  Wright,  22 
Cal.  293;  Ex  parte  Yale,  24  Cal.  241;  85 
Am.  Dec.  62. 

Admission  to  the  bar.  The  authority  to 
admit  to  practice  in  all  courts  of  the  state 
is  placed  wholly  within  the  jurisdiction  of 
the  district  courts  of  appeal,  and  the  su- 
preme court  has  no  authority  to  admit 
attorneys  to  practice.  Application  of  Mock, 
146  Cal.  378;  80  Pac.  64.  The  terms  "at- 
torney," "counselor,"  "attorney  at  law," 
are  synonymous.  Pittman  v.  Carstenbrook, 
11  Cal.  App.  224;  104  Pac.  699.  Licenses 
granted  to  attorneys,  under  this  section 
and  §  276,  post,  are  not  affected  by  the 
failure  of  the  legislature  to  define  the  qual- 
ifications that  they  must  possess.  (Obiter.) 
Ex  parte  McManus,  151  Cal.  331;  90  Pac. 
702. 


Attorneys. 

1.  Admission   of 
following. 

2.  Judges  must  have  been  admitted  to  prac- 
tice.   See  ante,  §§  156,  157. 

3.  Kemoval  of.    See    post,  §  287. 
Judicial  and  ministerial  officers. 

1.  Not   to   practice.     See    Pol.    Code,  §4121; 
ante,  §  171. 

2.  Nor  to  have  a  partner.    Ante,  §  172. 

Legislation  §  275.  1.  Enacted  March  11,  1873 
(hased  on  Stats.  1851,  p.  48),  and  then  read: 
"Any  white  male  citizen,  or  white  male  person, 
resident  of  this  state,  who  has  bona  fide  de- 
clared his  intention  to  become  a  citizen  in  the 
manner  required  by  law,  of  the  age  of  twenty- 
one  years,  of  good  moral  character,  and  who  pos- 
sesses the  necessary  qualifications  of  learning 
and  ability,  is  entitled  to  admission  as  attorney 
and   counselor   in   all   courts   of   this   state." 

a.  Amended  by  Code  Amdts.  1877-78,  p.  99, 
to  read  as  at  present,  except  that  the  last  sen- 
tence was  not  then  added. 

3.  Amended  by  Code  Amdts.  1880,  p.  55, 
adding  the  last  sentence. 

Citizenship.  An  alien,  by  filing  his  dec- 
laration of  intention,  does  not  thereby  be- 
come a  citizen  (Orosco  v.  Gagliardo,  22 
Cal.  83);  but  a  bona  fide  declaration  of 
intention  entitles  a  person  to  be  admitted 
to  practice  law  (Alpers  v.  Hunt,  86  Cal. 
78;  21  Am.  St.  Eep.  17;  9  L.  R.  A.  483;  24 
Pac.  846),  provided  such  person  is  eligible 
to  citizenship.  In  re  Hong  Yen  Chang,  84 
Cal.   163;   24  Pac.  156.     Pemales  are  now 


131 


QUALIFICATIONS CERTIFICATE  OF  ADMISSION  AND  LICENSE.       §§  276,  277 


Residence  as  affecting  right  to  admission  to 
bar.    See  note   17  Ann.   Cas.   878. 

CODE  COMMISSIONERS' NOTE.  Stats.  1851, 
p.  48.  An  attorney  at  law  is  not  a  person  hold- 
ing an  oiBce  of  public  trust,  within  the  prohib- 
itory clause  of  §  3,  art.  ii,  of  the  constitution. 
The  right  to  practice  law  is  a  statutory  privilege, 
subject'  to  the  control  of  the  legislature.  The 
right    to    practice    law    is    not    "property"    nor    a 


"contract,"'  within  the  meaning  of  the  constitu- 
tion. The  state  may  e.xclude  from  its  courts 
those  who  are  disloyal  to  the  Federal  as  well  as 
to  the  state  government.  An  oath  may  be  re- 
quired by  the  legislature  of  the  state  from  an  at- 
torney purging  himself  of  certain  imputed  crimes. 
See  Cohen  v.  Wright,  2'2  Cal.  293  ;  Kx  parte  Yale, 
24  Cal.  241 ;  85  Am.  Dec.  62. 


§  276.  Qualifications.  Every  applicant  for  admission  as  an  attorney  and 
counselor  must  produce  satisfactory  testimonials  of  a  good  moral  cliaracter 
and  undergo  a  strict  examination  in  open  court  as  to  his  qualifications  by 
the  justices  of  one  of  the  district  courts  of  appeal. 


Examination  of  candidates.  See  supreme  court 
rule  1. 

Legislation  §  276.     1.  Enacted  March  11,  1873, 

and  then  read:  "Every  applicant  for  admission 
as  attorney  and  counselor  must  produce  satis- 
factory testimonials  of  good  moral  character,  and 
undergo  a  strict  examination,  in  open  court,  as 
to  his  qualifications,  by  the  justices  of  the  su- 
preme  court." 

3.  Amended  by  Code  Amdts.  1873-74,  (1) 
p.  404  (March  18,  1874),  (a)  adding  the  article 
"an"  before  "attorney,"  in  the  first  line,  (b) 
omitting  the  commas  before  and  after  the  words 
"in  open  court,"  and  (c)  adding  "provided,  that 
the  several  county  and  district  courts  of  this 
state  may  admit  applicants  to  practice  as  attor- 
neys  and   counselors   in  their   respective   courts"  ; 

(2)  again    amended,    p.    289    (March    24,    1874), 

(a)  omitting  the  article   "an"   before   "attorney," 

(b)  adding  the  words  "except  as  provided  in  sec- 
tion two  hundred  and  seventy-nine"  before  the 
word   "undergo,"  and  (c)  striking  out  the   proviso; 

(3)  again  amended,  p.  404  (March  30,  1874), 
making  the  section  read  exactly  as  amended 
March   18,    1874. 

3.  Amended  by  Code  Amdts.  1S80,  p.  55, 
(a)  omitting  the  commas  before  and  after  the 
words    "in    open    court,"     (b)    adding,    after    "su- 


preme court,"  the  words  "or  by  the  justices 
sitting  _and  holding  one  of  the  departments 
thereof,"  and  (c)  making  the  proviso  read,  "pro- 
vided, that  the  several  superior  courts  of  this 
state  may  admit  applicants  to  practice  as  attor- 
neys and  counselors  in  their  respective  courts, 
but  not  elsewhere,  upon  strict  examination  in 
open  court,  and  not  otherwise,  and  upon  satis- 
factory  testimonials   of  good   moral   character." 

4.  Amended  by  Stats.  1895,  p.  56,  (1)  add- 
ing "a"  before  "good  moral";  (2)  striking  out 
the  proviso  added  in  1880,  and  substituting 
therefor,  "or  by  not  less  than  three  of  the  su- 
preme court  commissioners,  to  be  designated  ana 
appointed  by  the  chief  justice  of  the  supreme 
court  to  conduct  publicly  the  examination;  such 
commissioners  to  report  the  results  of  the  ex- 
amination to  the  supreme  court  for  final  action.'* 

5.  Amended  by  Stats.  1905,  p.  5. 

Application  of  section.  See  note  ante, 
§  275. 

Legislative  or  judicial  power  to  determine  qual- 
ifications for  admission  to  bar.  See  note  10  Ann. 
Cas.  198. 

CODE  COMMISSIONERS'  NOTE.  See  note  to 
preceding  section. 


§  277.  Certificate  of  admission  and  license.  If,  upon  examination,  he  is 
found  qualified,  the  district  court  of  appeal,  before  which  he  is  examined, 
shall  admit  him  as  an  attorney  and  counselor  in  all  the  courts  of  this  state, 
and  shall  direct  an  order  to  be  entered  to  that  effect  upon  its  records,  and 
that  a  certificate  of  such  record  be  given  to  him  by  the  clerk  of  the  court, 
which  certificate  shall  be  his  license.  Every  person  admitted  to  practice  by 
a  district  court  of  appeal,  either  upon  examination,  or  upon  the  production 
of  a  license  from  another  state,  as  provided  in  section  two  hundred  and 
seventy-nine  of  this  code,  may  practice  as  an  attorney  in  all  of  the  courts 
of  this  state,  including  the  supreme  court ;  and  every  person  now  entitled  to 
practice  in  the  supreme  court  of  this  state  may  practice  as  an  attorney  in 
any  district  court  of  appeal. 


Disbarment.    See  post,  §§  287  et  seq. 

Legislation  §  277.  1.  Enacted  March  11,  1873, 
and  tlun  read:  "If,  upon  examination,  he  is 
found  qualified,  the  court  must  admit  him  as  at- 
torney and  counselor  in  all  the  courts  of  this 
state,  and  shall  direct  an  order  to  be  entered  to 
that  elTect  upon  its  records,  and  that  a  certifi- 
cate of  such  record  be  given  to  him  by  the  clerk 
of   the   court,   which   certificate   is   his   license." 

3.  Amended  by  Code  Amdts.  1880.  p.  56, 
(1)  changing  the  words  between  "qualified"  and 
"and  counselor"  to  read,  "the  supreme  court,  or 
department  thereof  before  which  he  is  examined, 
shall  admit  him  as  an  attorney,"  and  (2)  chan- 
ging the  word  "is,"  in  last  line,  to  "shall  be." 

3.   Amended  by  Stats.  1905,  p.  5. 

Admission  and  license.  The  district 
courts   of   appeal  have   exclusive  power  to 


admit  attorneys  of  other  states  and  coun- 
tries to  practice  in  all  the  courts  of  this 
state.  Application  of  Mock,  146  Cal.  378: 
80  Pac.  64. 

CODE  COMMISSIONERS'  NOTE.  Section  4 
of  the  Statute  of  1861,  p.  40,  was  as  follows: 

"Sec.  4.  The  district  court  and  cou:ity  courts 
of  this  state  are  authorized  to  admit,  as  attorney 
and  counselor  in  their  respective  courts,  any  white 
male  citizen,  or  white  male  person,  who  has  bona 
fide  declared  his  intention  to  become  a  citizen,  of 
the  age  of  twenty-one  years,  and  of  good  moral 
character,  who  possesses  the  requisite  qualifica- 
tions, on  similar  testimonials  and  like  examina- 
tions as  are  required  by  the  preceding  section  for 
admission  by  the  supreme  court,  and  may  direct 
their  clerks  to  give  a  certificate  of  such  admis- 
sion, which  certificate  shall  be  a  license  to  prac- 
tice in  such  courts." 


§§278,279 


ATTORNEYS   AND    COUNSELORS  AT   LAW. 


132 


The  intended  effect  of  the  omission  of  this  sec- 
tion from  the  code  was  to  prevent  district  and 
county  couits  from  admitting  persons  as  attorneys 


and  counselors  in  those  courts.  The  supreme  court 
is  alone  vested  vifith  power  to  admit  attorneys  and 
counselors   to  practice  in   any   court  of  this  state. 


58  Am.  Rep.  545;  10  Pac.  47);  and  by  this 
section  it  is  incumbent  upon  an  attorney 
to  take  an  oath  to  support  the  constitution 
of  the  United  States  and  of  this  state. 
Alpers  V.  Hunt,  86  Cal.  78;  21  Am.  St.  Rep. 
17;  9  L.  R.  A.  483;  24  Pac.  846;  Sears  v. 
Starbird,  75  Cal.  91;  7  Am.  St.  Rep.  123; 
16  Pac.  53i.  The  payment  of  the  Federal 
license  tax  does  not  entitle  an  attorney  to 
practice  without  the  oath  prescribed  by 
statute.    Cohen  v.  Wright,  22  Cal.  293. 

CODE  COIVIMISSIONERS'  NOTE.  Cohen  v. 
Wright.  22  Cal.  293;  Ex  parte  Yale,  24  Cal. 
241;  85  Am.  Dec.  62. 


§  278.  Oath.  Every  person  on  his  admission  must  take  an  oath  to  sup- 
port the  constitution  of  the  United  States  and  the  constitution  of  the  state 
of  California,  and  to  faithfully  discharge  the  duties  of  an  attorney  and 
counselor  at  law  to  the  best  of  his  knowledge  and  ability.  A  certificate  of 
such  oath  must  be  indorsed  upon  the  license. 

Duties.    See  post,  §  282. 

Legislation  §  278.  1.  Enacted  March  11,  1873, 
and  tlien  read:  "Every  person,  on  his  admission, 
must  take  an  oath  to  support  the  constitution 
of  the  United  States  and  of  this  state,  and  to 
discharge  the  duties  of  attorney  and  counselor 
to  the  best  of  his  knowledge  and  ability.  A 
certificate   of  such  oath   must  be   indorsed  on  the 

2.  Amended  by  Code  Amdts.  1880,  p.  56. 

Oath  of  attorney.  The  taking  of  an  oath 
is  a  prerequisite  for  admission  to  practice 
as  an  attorney  and  counselor  at  law,  and  a 
violation  of  such  oath  is  cause  for  disbar- 
ment (Disbarment  of  Cowdery,  69  Cal.  32; 

§  279.  Attorneys  of  other  states.  Every  citizen  of  the  United  States,  or 
person  resident  of  this  state,  who  has,  bona  fide,  declared  his  intention  to 
become  a  citizen  in  the  manner  required  by  law,  who  has  been  admitted  to 
practice  law  in  the  highest  court  of  a  sister  state,  or  of  a  foreign  country, 
where  the  common  law  of  England  constitutes  the  basis  of  jurisprudence, 
may  be  admitted  to  practice  in  all  the  courts  of  this  state,  by  any  district 
court  of  appeal,  upon  the  production  of  his  or  her  license,  and  satisfactory 
evidence  of  good  moral  character;  but  the  court  may  examine  the  appli- 
cant as  to  his  or  her  qualifications. 

mission  from  another  state.  In  re  Hong 
Yen  Chang,  84  Cal.  163;  24  Pac.  156.  A 
practitioner  from  another  state  may  be  ex- 
amined as  to  his  qualifications,  although  he 
has  been  admitted  to  practice  in  the  su- 
preme court  of  the  United  States,  or  in  the 
courts  of  a  sister  state.  Ex  parte  Snelling, 
44  Cal.  553.  As  a  matter  of  comity,  an 
attorney  admitted  to  practice  in  another 
state  may  be,  by  the  supreme  court,  per- 
mitted to  present  arguments  to  it  in  a  par- 
ticular case,  although  it  has  no  power  to 
admit  him  to  practice  (Application  of 
Mock,  146  Cal.  378;  80  Pac.  64);  and  a 
lawyer,  duly  admitted  to  practice  in  an- 
other state,  who  has  been  accustomed  to 
practice  here  as  a  member  of  the  bar,  is  a 
de  facto  officer  of  the  court,  and  the  valid- 
ity of  his  acts  as  such  cannot  be  collat- 
erally attacked.  Garrison  v.  McGowan,  48 
Cal.  592. 

Evidence  of  good  moral  character.  Al- 
though an  attorney  was  admitted  to  prac- 
tice in  another  state,  yet  he  must  furnish 
to  the  court,  upon  his  application  for  ad- 
mission to  practice  in  this  state,  satisfac- 
tory evidence  of  his  good  moral  character. 
Case  of  Lowenthal,6lCal.  122. 

CODE  COMMISSIONERS' NOTE.  [The  entire 
opinion  in  the  case  of  Ex  parte  Snelling,  44  Cal. 
553.] 


"State"  and  "United  States,"  defined.  Ante, 
§  17,  subd.   7. 

Legislation  §  279.  1.  Enacted  March  11,  1873, 
and  then  read:  "Every  white  male  citizen  of 
the  United  States,  who  has  been  admitted  to 
practice  law  in  the  highest  court  of  a  sister 
state,  may  be  admitted  to  practice  in  the  courts 
of  this  state,  upon  the  production  of  his  license 
and  satisfactory  evidence  of  good  moral  charac- 
ter; but  the  court  may  examine  the  applicant 
as  to  his   qualifications." 

3.  Amended  by  Code  Amdts.  1877-78,  p.  99, 
to  read:  "Every  citizen  of  the  United  States 
who  has  been  admitted  to  practice  law  in  the 
highest  court  of  a  sister  state,  may  be  admitted 
to  practice  in  the  courts  of  this  state,  upon  the 
production  of  their  license,  and  satisfactory  evi- 
dence of  good  moral  character,  but  the  court 
may  examine  the  applicant  as  to  their  qualifi- 
cations." 

3.  Amended  by  Code  Amdts.  1880,  p.  56,  to 
read  as  at  present,  except  that  (1)  commas  were 
not  used  before  and  after  the  words  "bona  fide," 
nor  (2)  the  word  "all,"  before  "the  courts,"  nor 
(3)   the  words  "by  anv  district  court  of  appeal." 

4.  Amended  by  Stats.  1905,  p.  6. 

Admission  of  attorneys  from  other  juris- 
dictions. The  admission  of  an  attorney, 
duly  admitted  to  practice  in  another  state, 
may  be  made  on  motion  (Case  of  Lowen- 
thal,  61  Cal.  122);  but  his  personal  pres- 
ence is  necessary  in  court.  Ex  parte 
Snelling,  44  Cal.  553.  A  Mongolian,  not 
being  entitled  to  become  a  naturalized 
citizen  under  the  laws  of  the  United  States, 
cannot  be  admitted  to  practice  in  this 
state,  although  holding  a  certificate  of  ad- 


133  ROLL  OF  ATTORNEYS — DUTIES.  §§280-282 

§  280.  Roll  of  attorneys.  Every  clerk  of  a  district  court  of  appeal  shall 
keep  a  roll  of  attorneys  and  counselors  admitted  to  practice  by  the  court  of 
which  he  is  clerk,  which  roll  must  be  signed  by  the  person  admitted  before 
he  receives  his  license.  Every  clerk  shall,  each  month,  certify  to  the  clerk 
of  the  supreme  court  a  list  of  the  persons  so  admitted  during  the  preceding 
month,  with  such  other  information  as  appears  in  regard  thereto  on  his  roll, 
and  the  clerk  of  the  supreme  court  shall  keep  a  general  roll  of  all  the  attor- 
neys admitted  to  practice. 

Attorneys  of  supreme  court.    Ante,  §  275.  3.  Amended    by    Code    Amdts     1880,    p     56 

Legislation  §  280.     1.  Enacted  March  11,  1873.  Bhall^""^     "^^''^    "^^""^    ™"'*"     *°     "^^''^    '''^^''^ 

and  then   read:    "Each   clerk  must   keep   a   roll   of  3.' Amendment    by    Stats.    1901,    p     123-    un- 

attorneys     and    counselors    admitted    to    practice  constitutional.    See  note  an  e,  §5     '    '"            ' 

by    the    court    of    which    he    is    clerk,    which    roll  4^   Amended  by  Stats.  1905,  p   5, 

must    be    signed    by    the    person    admitted    before  •"  "'"^^''-  *•'"«,  y.  «, 
he   receives  his   license." 

§  280a.  Effect  of  diploma  granted  by  Hasting-s  College  of  the  Law.  Noth- 
ing in  this  chapter  contained  shall  be  construed  as  a  repeal  or  modification 
of  any  existing  provision  of  law  relative  to  the  effect  of  a  diploma  granted 
by  the  Hastings  College  of  the  Law. 

Legislation  g  280a.    Added  by  Stats.  1905,  p.  6. 

§  280b.    Admission  to  practice  law  on  diplomas  from  certain  universities. 

Any  person  producing  a  diploma  of  graduation  from  the  college  of  law  of 
the  University  of  Southern  California,  the  Young  Men's  Christian  Associa- 
tion Law  College  of  San  Francisco,  or  the  San  Francisco  Law  School,  or 
evidence  of  having  satisfactorily  completed  the  three  years'  course  of  study 
prescribed  by  the  department  of  law  of  Leland  Stanford  Junior  University, 
or  the  department  of  jurisprudence  of  the  University  of  California,  or  the 
institute  of  law  of  the  University  of  Santa  Clara,  or  the  college  of  law  of 
Saint  Ignatius  University  shall  be  entitled  to  a  license  to  practice  law  in  all 
the  courts  of  this  state,  subject  to  the  right  of  the  chief  justice  of  the 
supreme  court  of  the  state  to  order  an  examination,  as  in  ordinary  cases  of 
applicants  without  such  diploma  or  other  evidence. 

Legislation  S  280b.     1.  Added  by  Stats.  1907,  3.   Amended  by  Stats.   1913,  p.  88,  inserting 

p.    804,    and    then     read:     "The    diploma    of    the  "or    the    institute    of    law    of    the    University    of 

students    of    the    University   of    Southern    Califor-  Santa   Clara." 

nia  College  of  Law  shall  entitle  the  students  to  4.  Amended  by  Stats.  1915,  p.  660,  (1)  in- 
whom  it  is  issued  to  a  license  to  practice  in  all  serting  "the  Young  Men's  Christian  Association 
the  courts  of  this  state,  without  undergoing  the  Law  College  of  San  Francisco,  or  the  San  Fran- 
examination  required  by  section  two  hundred  cisco  Law  School";  (2)  striking  out  "law"  from 
and  seventy-si.x  of  this  code."  the    phrase    "course    of    law    study    prescribed"; 

3.   Amended   by    Stats.    1909,   p.    541,   recast-  (3)     inserting    "or    the    college    of    law    of    Saint 

ing  the  section.  Ignatius  University." 

§  281.  Penalty  for  practicing  without  license.  If  any  person  shall  prac- 
tice law  in  any  court,  except  a  justices'  court  or  police  court,  without  having 
received  a  license  as  attorney  and  counselor,  he  shall  be  guilty  of  a  contempt 
of  court. 

Contempt.    Post,  §§  1209  et  seq.  3.   Amendment   by    Stats.    1901,   p.    123;    un- 

Justice's  court  practitioners.    Ante,  §  96.  constitutional.    See  note  ante,  §  5. 

T.^ioi.fi^.,  «  0Q1      -.IT        *  A  Tut       V.11    ■ia'r<>  CODE    COMMISSIONERS' NOTE.      Any  person 

Legislation|281.1.  Enacted  March  11,  1873.        ^^^  ^^g^^^   -^  ^j^^  profession   of  law.      The  pro- 

3.    Amended    by    Code    Amdts.     1880,    p.    56,  fession   is  open   to   all,   and  it  is   simply  the  right 

(1)    adding    the    word      court      after      justices,  t^,   practice   in   court   which   is   not   permitted,    ex- 

and     (2)     changing      is       to       shall    be      before  gept    to    those    duly    qualified.     Woods'     Case,    1 

"guilty."  Hopk.  Ch.  7 ;  Cohen  v.  Wright,  22  Cal.  313. 

§  282.     Duties.     It  is  the  duty  of  an  attorney  and  counselor : 

1.  To  support  the  constitution  and  laws  of  the  United  States  and  of  this 
state ; 

2.  To  maintain  the  respect  due  to  the  courts  of  justice  and  judicial  officers ; 

3.  To  counsel  or  maintain  such  actions,  proceedings,  or  defenses  only  as 


282 


ATTORNEYS  AND   COUNSELORS  AT  LAW. 


134 


See 


appear  to  him  legal  or  just,  except  the  defense  of  a  person  charged  with  a 
public  offense; 

4.  To  employ,  for  the  purpose  of  maintaining  the  causes  confided  to  him, 
such  means  only  as  are  consistent  with  truth,  and  never  seek  to  mislead  the 
judge  or  any  judicial  officer  by  an  artifice  or  false  statement  of  fact  or  law ; 

5.  To  maintain  inviolate  the  confidence,  and  at  every  peril  to  himself,  to 
preserve  the  secrets  of  his  client ; 

6.  To  abstain  from  all  offensive  personality,  and  to  advance  no  fact  preju- 
dicial to  the  honor  or  reputation  of  a  party  or  witness,  unless  required  by 
the  justice  of  the  cause  with  which  he  is  charged ; 

7.  Not  to  encourage  either  the  commencement  or  the  continuance  of  an 
action  or  proceeding  from  any  corrupt  motive  of  passion  or  interest ; 

8.  Never  to  reject,  for  any  consideration  personal  to  himself,  the  cause 
of  the  defenseless  or  the  oppressed. 

contempt  of  court  to  send  accusatory, 
threatening,  or  insulting  letters  to  a  grand 
jury,  relating  to  matters  which  are  the  sub- 
ject of  their  investigations.  In  re  Tyler,  64 
Cal.  434;  1  Pac.  884. 

Misconduct  of  attorney  as  contempt  of 
court.    See  note  post,  §  1209. 

To  maintain  only  just  and  legal  actions. 
It  is  a  violation  of  the  duties  of  an  attor- 
ney to  counsel  or  maintain  such  actions  or 
proceedings  as  do  not  appear  to  him  to  be 
just  and  legal.  Disbarment  of  Stephens, 
84  Cal.  77;  24  Pac.  46. 

To  employ  only  such  means  as  are  con- 
sistent with  the  truth.  An  attorney  is 
bound  to  employ,  for  the  purpose  of  main- 
taining such  causes  as  are  confided  to  him, 
only  such  means  as  are  consistent  vrith 
the  truth,  and  never  to  seek  to  mislead  the 
judge,  or  any  other  judicial  officer,  by  arti- 
fice or  false  statements  of  fact  or  of  law. 
In  re  Tyler,  64  Cal.  434;  1  Pac.  8S4;  Guar- 
dianship of  Danneker,  67  Cal.  643;  8  Pac. 
514.  He  is  therefore  bound  to  admit  the 
fault  of  the  record,  where  it  is  due  to  a 
clerical  error.  Grand  Grove  v.  Garibaldi 
Grove,  130  Cal.  116;  80  Am.  St.  Eep.  80; 
62  Pac.  486. 

To  maintain  confidence  of  client.  The 
confidence  reposed  in  an  attorney  is  to  be 
maintained  inviolate;  this  obligation  is  a 
very  high  and  stringent  one,  never  to  be 
relaxed,  except  under  very  exceptional  cir- 
cumstances; fidelity  to  his  client,  under  all 
circumstances,  is  one  of  the  principal  obli- 
gations of  an  attorney.  Disbarment  of 
Cowdery,  69  Cal.  32;  58  Am.  Rep.  545;  10 
Pac.  47.  An  attorney,  in  dealing  with  his 
client,  is  bound  to  the  utmost  good  faith, 
and  the  burden  of  showing  that  the  trans- 
action was  fair  and  reasonable  is  upon  him. 
Valentine  v.  Stewart,  15  Cal.  387;  Kisling 
V.  Shaw,  33  Cal.  425;  91  Am.  Dec.  644; 
Felton  V.  Le  Breton,  92  Cal.  457;  28  Pac. 
490;  Cox  V.  Delmas,  99  Cal.  104;  33  Pac. 
836;  Disbarment  of  Danford,  157  Cal.  425, 
429;  108  Pac.  322;  Cooley  v.  Miller  &  Lux, 
156  Cal.  510,  523;  105  Pac.  981.  An  attor- 
ney dealing  with  a  client  for  his  own 
benefit,  in  regard  to  property  the  subject  of 
his  employment,  is  in  a  hostile  attitude  to 


Subd.   1.      Oath.    Ante,  §  278. 

Subd.  3.     Offender,    public,    defense    of. 
Pen.  Code,  §  987. 

Subd.  5.  Privileged  communications.  See  post, 
§  1881. 

Legislation  §  282.     1.  Enacted  March  11,  1873. 

8.  Amended  by  Code  Amdts.  1880,  p.  56, 
(1)  in  Bubd.  4  omitting  "to"  before  "seek,"  and 
substituting  for  "judges"  the  words  "judge  or 
any  judicial  officer,"  and  (2)  in  subd.  7  adding 
the  word   "corrupt"   before   "motive." 

To  maintain  respect  due  courts.  It  is 
made  the  duty  of  an  attorney  to  maintain 
the  respect  due  to  courts  and  judicial  offi- 
cers. Alpers  V.  Hunt,  86  Cal.  78;  21  Am. 
St.  Eep.  17;  9  L.  R.  A.  483;  24  Pac.  846; 
Sears  v.  Starbird,  75  Cal.  91;  7  Am.  St. 
Rep.  123;  16  Pac.  531.  To  impugn  the  mo- 
tive or  purity  of  a  trial  judge,  in  a  brief 
filed  in  the  supreme  court  on  an  appeal, 
is  a  grave  breach  of  professional  propriety, 
and  will  be  treated  by  the  supreme  court 
as  a  contempt  of  the  latter  court.  Sears 
V.  Starbird,  75  Cal.  91;  7  Am.  St.  Rep.  123; 
16  Pac.  531;  Disbarment  of  Philbrook,  105 
Cal.  471;  45  Am.  St.  Rep.  59;  38  Pac.  511, 
884;  First  Nat.  Bank  v.  Superior  Court,  12 
Cal.  App.  335,  349;  107  Pac.  322.  To  say 
that  the  action  of  the  court  was  "a  most 
covetous  and  wholly  unwarranted  usurpa- 
tion of  power,"  and  to  characterize  it  also 
as  "opera  bouffe,"  is  highly  disrespectful 
to  the  court  and  the  judge.  First  Nat. 
Bank  v.  Superior  Court,  12  Cal.  App.  335; 
107  Pac.  322;  In  re  Shay,  160  Cal.  399;  117 
Pac.  442.  An  attorney  who  contumaciously 
insists  upon  maintaining  a  pleading  assert- 
ing a  claim  after  he  has  knowledge  that  his 
client  has  been  restrained  from  so  doing, 
is  guilty  of  a  contempt  of  court.  Lake  v. 
Superior  Court,  165  Cal.  182;  131  Pac.  371. 
It  is  a  violation  of  the  oath  of  counsel, 
maliciously  to  invite  and  procure  the  pub- 
lication of  false  charges  against  the  judge, 
for  the  purpose  of  improperly  influencing 
him  or  unjustly  discrediting  his  action  in 
a  case,  and  it  is  a  cause  for  disbarment 
(In  re  Collins,  147  Cal.  8;  81  Pac.  220); 
and  it  is  a  violation  of  his  duty,  and  a 
contempt  of  court,  to  answer  as  a  guardian 
ad  litem  in  an  action,  without  an  order 
appointing  him  as  such.  Emeric  v.  Alva- 
rado,  64  Cal.  529;  2  Pac.  418.     It  is  also  a 


135 


DUTIES  OF  ATTORNEYS. 


§282 


his  client;  but  he  is  still  bound  to  the  exer- 
cise of  the  utmost  good  faith,  and  the 
burden  is  upon  him  to  rebut  the  presump- 
tion of  undue  influence.  Beach  v.  Riley,  20 
Cal.  App.  199;  128  Pac.  764.  The  mere  fact 
that  the  relation  of  attorney  and  client 
existed,  and  that  a  claim  by  the  attorney 
ought  to  be  looked  upon  with  suspicion, 
will  not  warrant  the  appellate  court  in 
saying  that  a  verdict  sustaining  the  claim 
was  not  justified,  where  there  is  strong  evi- 
dence that  there  was  a  consideration  there- 
for. Cousins  V.  Partridge,  79  Cal.  224;  21 
Pac.  745.  It  is  the  duty  of  an  attorney, 
employed  to  prosecute  or  defend  an  action, 
to  communicate  to  his  client  any  and  all 
information  he  may  acquire  in  relation  to 
the  subject-matter  of  the  suit;  he  will  be 
presumed  to  have  performed  this  duty,  and 
any  knowledge  or  notice  which  comes  to 
him  regarding  such  subject-matter,  while 
acting  in  such  capacity,  will  be  regarded 
as  constructive  notice  to  his  client.  Bierce 
V.  Red  Bluff  Hotel  Co.,  31  Cal.  160;  Wit- 
tenbrock  v.  Parker,  102  Cal.  93;  41  Am. 
St.  Rep.  172;  24  L.  R.  A.  197;  36  Pac.  374; 
Donald  v.  Beals,  57  Cal.  399.  An  attorney, 
having  acted  as  such  for  one  party  to  a 
suit,  and  having  had  opportunities  to  know 
the  facts  of  his  client's  cause,  cannot  go 
over  to  the  adverse  side  and  render  assist- 
ance (Valentine  v.  Stewart,  15  Cal.  387; 
Disbarment  of  Cowdery,  69  Cal.  32;  58  Am. 
Rep.  545;  10  Pac.  47;  De  Cells  v.  Brunson, 
53  Cal.  372);  and  having  acted  as  attorney 
for  one  side  on  a  former  trial,  the  court 
will  not  permit  him  to  act  on  the  other 
side,  on  a  subsequent  trial  of  the  same 
cause.  Weidekind  v.  Tuolumne  County 
Water  Co.,  74  Cal.  386;  5  Am.  St.  Rep.  445; 
19  Pac.  173.  Where  an  attorney  has  merely 
been  consulted,  without  any  retainer,  as  to 
his  charges  for  the  commencement  and 
prosecution  of  an  action,  and  his  terms 
have  not  been  accepted  by  the  party,  the 
relation  of  attorney  and  client  does  not 
exist,  and  the  attorney  is  at  liberty  to 
accept  a  retainer  from  the  other  side 
(Hicks  v.  Drew,  117  Cal.  305;  49  Pac.  189); 
nor  does  the  relation  of  attorney  and  client 
exist,  where  one,  acting  as  an  agent,  em- 
ploys an  attorney  for  another.  Porter  v. 
Peckham,  44  Cal.  204. 

To  preserve  secrets.  The  secrets  of  the 
client  are  to  be  preserved  inviolate  by  an 
attorney,  where  communicated  to  him  in 
his  professional  capacity.  Valentine  v. 
Stewart,  15  Cal.  387;  Gallagher  v.  William- 
son, 23  Cal.  331;  83  Am.  Dec.  114;  Kisling 
v.  Shaw,  33  Cal.  425;  91  Am.  Dec.  644; 
People  V.  Atkinson,  40  Cal.  284. 

To  abstain  from  offensive  personalities. 
It  is  the  duty  of  an  attorney  to  abstain 
from  offensive  personalities  (In  re  Tyler, 
64  Cal.  434;  1  Pac.  884),  and  to  be  a  para- 
gon of  candor,  fairness,  honor,  and  fidelity 
in  all  his  dealings  with  those  who   place 


their  trust  in  his  ability  and  integrity; 
and  he  will  be  held  to  the  full  measure  of 
what  he  ought  to  be.  Sanguinetti  v. 
Kossen,  12  Cal.  App.  623,  630;  107  Pac.  560. 

To  maintain  honor  or  reputation  of  party 
or  witness.  It  is  the  duty  of  an  attorney 
to  advance  no  fact  prejudicial  to  the  honor 
or  reputation  of  a  party  or  witness,  unless 
required  by  the  justice  of  his  cause.  In  re 
Tyler,  64  Cal.  434;  1  Pac.  884. 

To  observe  good  faith  in  commencement 
of  actions.  An  attorney  should  not  encour- 
age the  commencement  of  an  action  from 
any  corrupt  motive,  or  from  passion  or  in- 
terest. Disbarment  of  Stephens,  84  Cal.  77; 
24  Pac.  46. 

Defend  the  cause  of  the  oppressed.  An 
attorney  is  an  officer  of  the  court,  and 
takes  his  office  with  all  its  burdens,  as  well 
as  with  all  its  rights  and  privileges;  and 
among  the  burdens  thus  assumed  is  the 
duty  to  render  professional  services,  with- 
out compensation,  to  persons  accused  of 
crime,  who  are  destitute  of  means,  upon 
the  appointment  of  the  court;  and  as  such 
services  are  no  charge  against  a  county,  the 
attorney  must  look  to  the  possible  future 
ability  of  the  parties  to  compensate  him. 
Rowe  v.  Yuba  County,  17  Cal.  61. 

May  have  interest  in  result  when.  A 
contract  for  a  contingent  fee  is  not  con- 
trary to  good  morals,  and  is  valid  (Hoffman 
V.  Vallejo,  45  Cal.  564;  Ballard  v.  Carr,  48 
Cal.  74;  Howard  v.  Throckmorton,  48  Cal. 
482;  Gage  v.  Downey,  79  Cal.  140;  21  Pac. 
527,  855;  King  v.  Gildersleeve,  79  Cal.  504; 
21  Pac.  961;  Calanchini  v.  Branstetter,  84 
Cal.  249;  24  Pac.  149;  Thurber  v.  Moves, 
119  Cal.  35;  50  Pac.  1063;  51  Pac.  536); 
but  it  is  otherwise  where  a  third  party,  not 
an  attorney,  contracts  with  an  attorney 
that  he  shall  be  employed  as  counsel  in  a 
case,  in  consideration  that  the  third  party 
shall  be  paid  part  of  the  compensation  re- 
ceived by  such  attorney  for  his  services. 
Alpers  v.  Hunt,  86  Cal.  78;  21  Am.  St.  Rep. 
17;  9  L.  R.  A.  483;  24  Pac.  846. 

Contracts  for  services.  Inducing  a  client 
to  pay  him  a  fee  for  services  which  he 
knows  he  is  not  in  a  position  to  perform, 
is  a  breach  of  the  obligation  of  fidelity  by 
an  attorney.  Disbarment  of  Danford,  157 
Cal.  425.  The  confidential  relation  does 
not  exist,  however,  until  the  contract  for 
services  is  made.  Cooley  v.  Miller  &  Lux, 
156  Cal.  510,  524;  105  Pac.  981. 

Outlays  and  expenses.  In  the  absence 
of  a  special  agreement,  a  client  is  bound 
to  repay  his  attorney  for  all  outlays  made 
by  him  in  the  payment  of  the  expenses  of 
carrying  on  the  litigation,  and  an  attorney 
is  bound  to  bear  his  own  personal  and 
traveling  expenses.  Cooley  v.  Miller  & 
Lux,  156  Cal.  510;  105  Pac.  981. 

Action  for  services.  An  attorney  may, 
in  proving  the  value  of  legal  services,  in- 
clude therein  the  amount  of  a  reasonable 


§282 


ATTORNEYS  AND   COUNSELORS  AT  LAW. 


136 


retaining  fee,  though  not  mentioned  in  his 
complaint.  Aydelotte  v.  Bloom,  13  Cal. 
App.  56;  lOSPac.  877. 

CODE    COMMISSIONERS'    NOTE.      1.  Duties 

cf  attorneys   and   counselors.      The   provisions   of 
ihis  section  are  taken  substantially  from  the  oath 
prescribed   to    advocates    by    the    laws    of   Geneva. 
The  oath  is  as   follows: 
"I  swear  before  God, 

"To  be  faithful  to  the  republic  and  the  canton 
of  Geneva; 

"Never  to  depart  from  the  respect  due  to  the 
tribunals  and  authorities; 

"Never  to  counsel  or  maintain  a  cause  vrhich 
does  not  appear  to  be  just  or  equitable,  unless 
it   be   the   defense   of   an   accused  person; 

"Never  to  employ  knowingly,  for  the  purpose 
of  maintaining  the  causes  confided  to  me,  any 
means  contrary  to  truth,  and  never  to  seek  to 
mislead  the  judges  by  any  artifice  or  false  state- 
ment of  fact  or  law; 

"To  abstain  from  all  offensive  personality,  and 
to  advance  no  fact  contrary  to  the  honor  or  repu- 
tation of  the  parties,  if  it  be  not  indispensable 
to  the  cause  with  which  I  may  be  charged; 

"Not  to  encourage  either  the  commencement  or 
the  continuance  of  a  suit  from  any  motive  of  pas- 
sion   or    interest; 

"Not  to  reject,  for  any  considerations  personal 
to  myself,  the  cause  of  the  weak,  the  stranger, 
or   the   oppressed." 

[The  remainder  of  this  portion  of  the  note, 
being  the  report  of  the  New  York  code  commis- 
sioners, is  omitted,  and  in  place  thereof  is  sub- 
stituted the  Canons  of  Ethics  of  the  American 
Bar  Association.  This  code  of  professional  ethics 
was  adopted  by  the  American  Bar  Association  at 
Seattle,  Washington,  August,  1908.] 

"I.  Preamble.  In  America,  where  the  stability 
of  courts  and  of  all  departments  of  government 
rests  upon  the  approval  of  the  people,  it  is  pecu- 
liarly essential  that  the  system  for  establishing 
and  dispensing  justice  be  developed  to  a  high  point 
of  efficiency,  and  so  maintained  that  the  public 
shall  have  absolute  confidence  in  the  integrity  and 
impartiality  of  its  administration.  The  future  of 
the  republic,  to  a  great  extent,  depends  upon  our 
maintenance  of  justice,  pure  and  unsullied.  It 
cannot  be  so  maintained  unless  the  conduct  and 
the  motives  of  the  members  of  our  profession  are 
such  as  to  merit  the  approval  of  all  just  men. 

"II.  The  canon  of  ethics.  No  code  or  set  of 
rules  can  be  framed  which  will  particularize  all 
the  duties  of  the  lawyer  in  the  varying  phases 
of  litigation  or  in  all  the  relations  of  professional 
life.  The  following  canons  of  ethics  are  adopted 
by  the  American  Bar  Association  as  a  general 
guide,  yet  the  enumeration  of  particulnr  duties 
should  not  be  construed  as  a  denial  of  the  exist- 
ence of  others  equally  imperative,  though  not 
specifically  mentioned. 

"1.  The  duty  of  the  lawyer  to  the  courts.  It 
is  the  duty  of  the  lawyer  to  maintain  tovi^ards 
the  courts  a  respectful  attitude,  not  for  the  sake 
of  the  temporary  incumbent  of  the  judicial  office, 
but  for  the  maintenance  of  its  supreme  impor- 
tance. Judges,  not  being  wholly  free  to  defend 
themselves,  are  peculiarly  entitled  to  receive  the 
support  of  the  bar  against  unjust  criticism  and 
clamor.  Whenever  there  is  proper  ground  for 
serious  complaint  of  a  judicial  officer,  it  is  the 
right  and  duty  of  the  lawyer  to  submit  his  griev- 
ances to  the  proper  authorities.  In  such  cases, 
but  not  otherwise,  such  charges  should  be  encour- 
aged and  the  person  making  them  should  be  pro- 
tected. 

"2.  The  gelection  of  Judges.  It  is  the  duty  of 
the  bar  to  endeavor  to  prevent  political  consid- 
erations from  outweighing  judicial  fitness  in  the 
selection  of  judges.  It  should  protest  earnestly 
and  actively  against  the  appointment  or  election 
of  those  who  are  unsuitable  for  the  bench;  and 
it  should  strive  to  have  elevated  thereto  only  those 
willing  to  forego  other  employments,  whether  of 
a  business,  political,  or  other  character,  which 
may  embarrass  their  free  and  fair  consideration 
of  questions  before  them  for  decision.  The  as- 
piration of  lawyers  for  judicial  position  should  be 
governed  by  an  impartial  estimate  of  their  ability 


to  add  honor  to  the  office,  and  not  by  a  desire 
for  the  distinction  the  position  may  bring  to  them- 
selves. 

"3.  Attempts  to  exert  personal  influence  on  the 
court.  Marked  attention  and  unusual  hospitality 
on  the  part  of  a  lawyer  to  a  judge,  uncalled  for 
by  the  personal  relations  of  the  parties,  subject 
both  the  judge  and  the  lawyer  to  misconstruc- 
tions of  motive,  and  should  be  avoided.  A  lawyer 
should  not  com;nunicate  or  argue  privately  with 
the  judge  as  to  tlie  merits  of  a  pending  cause,  and 
he  deserves  rebuke  and  denunciation  for  any  de- 
vice or  attempt  to  gain  from  a  judge  special  per- 
sonal consideration  or  favor.  A  self-respecting 
independence  in  the  discharge  of  professional 
duty,  without  denial  or  diminution  of  the  cour- 
tesy and  respect  due  the  judge's  station,  is  the 
only  proper  foundation  for  cordial,  personal,  and 
official  relations  between  bench  and  bar. 

"4.  When  counsel  for  an  indigent  prisoner. 
A  lawyer  assigned  as  counsel  for  an  indigent 
prisoner  ought  not  to  ask  to  be  excused  for  any 
trivial  reason,  and  should  always  exert  his  best 
elforts  in  his  behalf. 

'■5.  The  defense  or  prosecution  of  those  ac- 
cused of  crime.  It  is  the  right  of  the  lawyer  to 
undertake  the  defense  of  a  person  accused  of 
crime,  regardless  of  his  personal  opinion  as  to 
the  guilt  of  the  accused;  otherwise  innocent  per- 
sons, victims  only  of  suspicious  circumstances, 
might  be  denied  proper  defense.  Having  under- 
taken such  defense,  the  lawyer  is  bound  by  all 
fair  and  honorable  means,  to  present  every  de- 
fense that  the  law  of  the  land  permits,  to  the  end 
that  no  person  may  be  deprived  of  life  or  liberty, 
but  by  due  process  of  law.  The  primary  duty 
of  a  lawyer  engaged  in  public  prosecution  is  not 
to  convict,  but  to  see  that  justice  is  done.  The 
suppression  of  facts  or  the  secreting  of  witnesses 
capable  of  establishing  the  innocence  of  the  ac- 
cused is  highly  reprehensible. 

"6.  Adverse  influences  and  conflicting  interests. 
It  is  the  duty  of  a  lawyer,  at  the  time  of  re- 
tainer, to  disclose  to  the  client  all  the  circum- 
stances of  his  relations  to  the  parties,  and  any 
interest  in  or  connection  with  the  controversy, 
which  might  influence  the  client  in  the  selection 
of  counsel.  It  is  unprofessional  to  represent  con- 
flicting interests,  except  by  express  consent  of 
all  concerned  given  after  a  full  disclosure  of  the 
facts.  Within  the  meaning  of  this  canon,  a  law- 
yer represents  conflicting  interests  when,  in  be- 
half of  one  client,  it  is  his  duty  to  contend  for 
that  which  duty  to  another  client  requires  him 
to  oppose.  The  obligation  to  represent  the  client 
with  undivided  fidelity,  and  not  to  divulge  his 
secrets  or  confidences,  forbids  also  the  subsequent 
acceptance  of  retainers  or  employment  from 
others  in  matters  adversely  affecting  any  interest 
of  the  client  with  respect  to  which  confidence 
has  been  reposed. 

"7.  Professional  colleagues,  and  conflicts  of 
opinion.  A  client's  profiler  of  assistance  of  addi- 
tional counsel  s'nould  not  be  re^^arded  as  evidence 
of  want  of  confidence,  but  the  matter  should  be 
left  to  the  determination  of  the  client.  A  lawyer 
should  decline  association  as  colleague  if  it  is  ob- 
jectionable to  the  original  counsel,  but  if  the 
lawyer  first  retained  is  relieved,  another  may 
come  into  the  case.  When  lawyers  jointly  asso 
ciated  in  a  cause  cannot  agree  as  to  any  matter 
vital  to  the  interest  of  the  client,  the  conflict  of 
opinion  should  be  frankly  stated  to  him  for  his 
final  determination.  His  decision  should  be  ac- 
cepted, unless  the  nature  of  the  difference  makes 
it  impracticable  for  the  lawyer  whose  judgment 
has  been  overruled  to  co-operate  effective^'.  In 
this  event  it  is  his  duty  to  ask  the  client  to 
relieve  him.  Efforts,  direct  or  indirect,  in  any 
way  to  encroach  upon  the  business  of  anotlier 
lawyer,  are  unworthy  of  those  who  should  be 
brethren  at  the  bar;  but,  nevertheless,  it  is  the 
right  of  any  lawyer,  without  fear  or  favor,  to 
give  proper  advice  to  those  seeking  relief  against 
unfaithful  or  neglectful  counsel,  generally  after 
communication  with  the  lawyer  of  whom  the  com- 
plaint is  made. 

"8.  Advising    upon    the    merits    of    a    client's 
cause.      A   lawyer   should   endeavor   to   obtain   full ' 
knowledge   of   hii    client's    cause    before   advising 


137 


CODE  OP  ETHICS. 


§282 


thereon,  and  he  is  bound  to  give  a  candid  opin- 
ion of  the  merits  and  probable  result  of  pending 
or  contemplated  litigation.  The  miscarriages  to 
which  justice  is  subject,  by  reason  of  surprises 
and  disappointments  in  evidence  and  witnesses, 
and  through  mistakes  of  juries  and  errors  of 
courts,  even  though  only  occasional,  admonish 
lawyers  to  beware  of  bold  and  confident  assur- 
ances to  clients,  especially  where  the  employ- 
ment may  depend  upon  such  assurance.  Whenever 
the  controversy  will  admit  of  fair  adjustment, 
the  client  should  be  advised  to  avoid  or  to  end 
the  litigation. 

"9.  Negotiatioas  with  opposite  party.  A  lawyer 
should  not  in  any  way  communicate  upon  the 
subject  of  controversy  with  a  party  represented 
by  counsel;  much  less  should  he  undertake  to 
negotiate  or  compromise  the  matter  with  him,  but 
should  deal  only  with  his  counsel.  It  is  incum- 
bent upon  the  lawyer  most  particularly  to  avoid 
everything  that  may  tend  to  mislead  a  party  not 
represented  by  counsel,  and  he  should  not  under- 
take to  advise  him  as  to   the  law. 

"10.  Acquiring  interest  in  litigation.  The  law- 
yer should  not  purchase  any  interest  in  the 
subject-matter  of  the  litigation  which  he  is  con- 
ducting. 

"11.  Dealing  with  trust  property.  Money  of 
the  client  or  other  trust  property  coming  into 
the  possession  of  the  lawyer  should  be  reported 
promptly,  and  except  with  the  client's  knowledge 
and  consent  should  not  be  commingled  with  his 
private  property  or  be  used  by  him. 

"12.  Fixing  the  amount  of  the  fee.  In  fixing 
fees,  lawyers  should  avoid  charges  which  over- 
estimate their  advice  and  services,  as  well  as 
those  which  undervalue  them.  A  client's  ability 
to  pay  cannot  justify  a  charge  in  excess  of  the 
value  of  the  service,  though  his  poverty  may  re- 
quire a  less  charge,  or  even  none  at  all.  The 
reasonable  request  of  brother  lawyers,  and  of  their 
widows  and  orphans  without  ample  means,  should 
receive  special  and  kindly  consideration.  In  de- 
termining the  amount  of  the  fee,  it  is  proper  to 
consider:  1.  The  time  and  labor  required,  the 
novelty  and  difficulty  of  the  questions  involved, 
and  the  skill  requisite  properly  to  conduct  the 
cause;  2.  Whether  the  acceptance  of  employment 
in  the  particular  case  will  preclude  the  lawyer's 
appearance  for  others  in  cases  likely  to  arise  out' 
of  the  transaction,  and  in  which  there  is  a  rea- 
sonable expectation  that  otherwise  he  would  be 
employed,  or  will  involve  the  loss  of  other  busi- 
ness while  employed  in  the  particular  case  or 
antagonisms  with  other  clients;  3.  The  custom- 
ary charges  of  the  bar  for  similar  services; 
4.  The  amount  involved  in  the  controversy,  and 
the  benefits  resulting  to  the  client  from  the  ser- 
vices; 5.  The  contingency,  or  the  certainty  of  the 
compensation;  and  6.  The  character  of  the  em- 
ployment, whether  casual  or  for  an  established 
and  constant  client.  No  one  of  these  considera- 
tions, in  itself,  is  controlling.  They  are  mere 
guides  in  ascertaining  the  real  value  of  the  ser- 
vice. In  fixing  fees  it  should  never  be  forgotten 
that  the  profession  is  a  branch  of  the  adminis- 
tration of  justice,  and  not  of  mere  money-getting 
trade. 

"13.  Contingent  fees.  Contingent  fees  lead  to 
many  abuses,  and  where  sanctioned  by  law  should 
be  under  the  supervision  of  the  court. 

"14.  Suing  a  client  for  a  fee.  Controversies 
with  clients  concerning  compensation  are  to  be 
avoided  by  the  lawyer,  so  far  as  shall  be  com- 
patible with  his  self-respect  and  with  his  right 
to  receive  reasonable  recompense  for  his  ser- 
vices; and  lawsuits  with  clients  should  be  re- 
sorted to  only  to  prevent  injustice,  imposition,  or 
fraud. 

"15.  How  far  a  lawyer  may  go  in  supporting 
a  client's  cause.  Nothing  operates  more  cer- 
tainly to  create  or  to  foster  popular  prejudice 
against  lawyers  as  a  class,  and  to  deprive  the 
profession  of  the  full  measure  of  public  esteem 
and  confidence  which  belongs  to  the  proper  dis- 
charge of  its  duties,  than  does  the  false  claim, 
often  set  up  by  the  unscrupulous  in  defense  of 
questionable  transactions,  that  it  is  the  duty  of 
the  lawyer  to  do  whatever  may  enable  him  to 
succeed  in  winning  his  client's  cause.  It  is  im- 
proper  for   a    lawyer   to    assert    in    argument    his 


personal  belief  in  his  client's  innocence  or  in  the 
justice  of  his  cause.  The  lawyer  owes  'entire  de- 
votion to  the  interest  of  the  client,  warm  zeal  in 
the  maintenance  and  defense  of  his  rights,  and 
the  exertion  of  his  utmost  learning  and  ability,' 
to  the  end  that  nothing  be  taken  or  be  withheld 
from  him,  save  by  the  rules  of  law,  legally  ap- 
plied. No  fear  of  judicial  disfavor  gr  public  un- 
popularity should  restrain  him  from  the  full 
discharge, of  his  duty.  In  the  judicial  forum  the 
client  is  entitled  to  the  benefit  of  any  and  every 
remedy  and  defense  that  is  authorized  by  the 
law  of  the  land,  and  he  may  expect  his  lawyer 
to  assert  every  such  remedy  or  defense.  But  it 
is  steadfastly  to  be  borne  in  mind  that  the  great 
trust  of  the  'awyer  is  to  be  performed  within, 
and  not  without,  the  bounds  of  the  law.  The 
office  of  attorney  does  not  permit,  much  less  does 
it  demand  of  him  for  any  client,  violation  of 
law  or  any  manner  of  fraud  or  chicane.  He 
must  obey  his  own  conscience,  and  not  that  of  his 
client. 

"16.  Eestraining  clients  from  improprieties.  A 
lawyer  should  use  his  best  efforts  to  restrain  and 
to  prevent  his  clients  from  doing  those  things 
which  the  lawyer  himself  ought  not  to  do,  par- 
ticularly with  reference  to  their  conduct  towards 
courts,  judicial  officers,  jurors,  witnesses,  and 
suitors.  If  a  client  persists  in  such  wrong-do- 
ing  the   lawyer   should   terminate    their   relation. 

"17.  Ill-feeling  and  personalities  between  ad- 
vocates. Clients,  not  lawyers,  are  the  litigants. 
Whatever  mav  be  the  ill-feeling  existing  between 
clients,  it  should  not  be  allowed  to  influence 
counsel  in  their  conduct  and  demeanor  toward 
each  other  or  toward  suitors  in  the  case.  All 
personalities  between  counsel  should  be  scrupu- 
lously avoided.  In  the  trial  of  a  cause  it  is  in- 
decent to  allude  to  the  personal  history  or  the 
personal  peculiarities  and  idiosyncrasies  of  coun- 
sel on  the  other  side.  Personal  colloquies  be- 
tween counsel,  which  cause  delay  and  promote 
unseemly  wrangling  should  also  be  carefully 
avoided. 

"18.  Treatment  of  witnesses  and  litigants.  A 
lawyer  should  always  treat  adverse  witnesses  and 
suitors  with  fairness  and  due  consideration,  and 
he  should  never  minister  to  the  malevolence  or 
prejudices  of  a  client  in  the  trial  or  conduct  of 
a  cause.  The  client  cannot  be  made  the  keeper 
of  the  lawyer's  conscience  in  professional  mat- 
ters. He  has  no  right  to  demand  that  his  counsel 
shall  abuse  the  opnosite  party,  or  indulge  in  of- 
fensive personalities.  Improper  speech  is  not 
excusable  on  the  ground  that  it  is  what  the  client 
would  say  if  speaking  in  his  own  behalf. 

"19.  Appearance  of  lawyer  as  witness  for  his 
client.  When  a  lawyer  is  a  witness  for  his  client, 
except  as  to  merely  formal  matters,  such  as  the 
attestation  or  custody  of  an  instrument,  and  the 
like,  he  should  leave  the  trial  of  the  case  to  other 
counsel.  Except  when  essential  to  the  ends  of 
justice,  a  lawyer  should  avoid  testifying  in  court 
in    behalf    of    his    client. 

"20.  Newspaper  discussion  of  pending  litiga- 
tion. Newspaper  publications,  by  a  lawyer,  as  to 
pending  or  anticipated  litigation,  may  interfere 
with  a  fair  trial  in  the  courts,  and  otherwise 
prejudice  the  due  administration  of  justice.  Gen- 
erally they  are  to  be  condemned.  If  the  extreme 
circumstances  of  a  particular  case  justify  a  state- 
ment to  the  public,  it  is  unprofessional  to  make 
it  anonymously.  An  ex  parte  reference  to  the 
facts  should  not  go  beyond  quotation  from  the 
records  and  papers  on  file  in  the  court;  but  even 
in  extreme  cases  it  is  better  to  avoid  any  ex 
parte  statement. 

"21.  Punctuality  and  expedition.  It  is  the  duty 
of  the  lawyer  not  only  to  his  client,  but  also  to 
the  courts  and  to  the  public,  to  be  punctual  in 
attendance,  and  to  be  concise  and  direct  in  the 
trial  and  disposition  of  causes. 

"22.  Candor  and  fairness.  The  conduct  of  the 
lawyer  before  the  court  and  with  other  lawyers 
should  be  characterized  by  candor  and  fairness. 
It  is  not  candid  or  fair  for  the  lawyer  know- 
ingly to  misquote  the  contents  of  a  paper,  the 
testimony  of  a  witness,  the  language  or  the  argu- 
ment of  opposing  counsel,  or  the  language  of  a 
decision  or  a  text-book;  or  with  knowledge  of  its 
invalidity,    to    cite   as   authority   a   decision   that 


§282 


ATTORNEYS  AND   COUNSELORS  AT   LAW. 


138 


has  been  overruled,  or  a  statute  that  has  been 
repealed;  or  in  argument  to  assert  as  a  fact  that 
which  has  not  been  proved;  or,  in  those  jurisdic- 
tions where  a  side  has  the  opening  and  closing 
arguments,  to  mislead  his  opponent  by  conceal- 
ing or  withholding  positions  in  his  opening  argu- 
ment upon  which  his  side  then  intends  to  rely. 
It  is  unprofessional  and  dishonorable  to  deal 
other  than  candidly  with  the  facts  in  taking  the 
statements  of  witnesses,  in  drawing  affidavits  and 
other  documents,  and  in  the  presentation  of 
causes.  A  lawyer  s-hould  not  offer  evidence, 
which  he  knows  the  court  should  reject,  in  order 
to  get  the  same  before  the  jury  by  argument  for 
its  admissibility,  nor  should  he  address  to  the 
judge  arguments  upon  any  point  not  properly  call- 
ing for  determination  by  him.  Neither  should 
he  introduce  into  an  argument,  addressed  to  the 
court,  remarks  or  statements  intended  to  in- 
fluence the  jury  or  bystanders.  These  and  all 
kindred  practices  are  unprofessional  and  un- 
worthy of  an  officer  of  the  law,  charged,  as  is 
the  lawyer,  with  the  duty  of  aiding  in  the  ad- 
ministration of  justice. 

"23.  Attitude  toward  Jury.  All  attempts  to 
curry  favor  with  juries  by  fawning,  flattery,  or 
pretended  solicitude  for  their  personal  comfort. 
are  unprofessional.  Suggestions  of  counsel,  look- 
ing to  the  comfort  or  convenience  of  jurors,  and 
propositions  to  dispense  with  argument,  should 
be  made  to  the  court  out  of  the  jury's  hearing. 
A  lawyer  must  never  converse  privately  with 
jurors  about  the  case;  and  both  before  and  dur- 
ing the  trial  he  should  avoid  communicating  with 
them,  even  as  to  matters  foreign  to  the  cause. 

"24.  Bight  of  lawyer  to  control  the  incidents 
of  the  trial.  As  to  incidental  matters  pending 
the  trial,  not  affecting  the  merits  of  the  cause 
or  working  substantial  prejudice  to  the  rights  of 
the  client,  such  as  forcing  the  opposite  lawyer 
to  trial  when  he  is  under  affliction  or  bereave- 
ment, forcing  the  trial  on  a  particular  day,  to  the 
Injury  of  the  opposite  lawyer,  when  no  harm  will 
result  from  a  trial  at  a  different  time;  agreeing 
to  an  extension  of  time  for  signing  a  bill  of  ex- 
ceptions, cross-interrogatories,  and  the  like,  ths 
lawyer  must  be  allowed  to  judge.  In  such  mat- 
ters no  client  has  a  right  to  demand  that  his 
counsel  shall  be  illiberal,  or  that  he  do  anything 
therein  repugnant  to  his  own  sense  of  honor  and 
propriety. 

"25.  Taking  technical  advantage  of  opposite 
counsel.  Agreements  with  him.  A  lawyer  should 
not  ignore  known  customs  or  practice  of  the  bar 
or  of  a  particular  court,  even  when  the  law  per- 
mits, without  giving  timely  notice  to  the  oppo- 
sing counsel.  As  far  as  possible,  important  agree- 
ments affecting  the  rights  of  clients,  should  be 
reduced  to  writing;  but  it  is  dishonorable  to  avoid 
performance  of  an  agreement  fairly  made  because 
it  is  not  reduced  to  writing  as  required  by  rules 
of  court. 

"26.  Professional  advocacy  other  than  before 
courts.  A  lawyer,  openly,  and  in  his  true  char- 
acter, may  render  professional  services  before 
legislative  or  other  bodies,  regarding  proposed 
legislation,  and  in  advocacy  of  claims  before  de- 
partments of  government,  upon  the  same  principles 
of  ethics  which  justify  his  appearance  before  the 
courts;  but  it  is  unprofessional  for  a  lawyer  so 
engaged  to  conceal  his  attorneyship,  or  to  employ 
secret  personal  solicitations,  or  to  use  means, 
other  than  those  addressed  to  the  reason  and 
understanding,  to  influence  action. 

"27.  Advertising,  direct  or  indirect.  The  most 
worthy  and  effective  advertisement  possible,  even 
for  a  young  lawyer,  and  especially  with  his 
brother  lawyers,  is  the  establishment  of  a  well- 
merited  reputation  for  professional  capacity  and 
fidelity  to  trust.  This  cannot  be  forced,  but 
must  be  the  outcome  of  character  and  conduct. 
The  publication  or  circulation  of  ordinary,  simple 
business  cards,  being  a  matter  of  personal  taste 
or  local  custom,  and  sometimes  of  convenience,  is 
not,  per  se,  improper.  But  solicitation  of  busi- 
ness by  circulars  or  advertisements,  or  by  per- 
sonal communications  or  interviews,  not  war- 
ranted by  personal  relations,  is  unprofessional. 
It  is  equally  unprofessional  to  procure  business 
by    indirection,     through    touters    of    any    kind, 


whether  allied  real  estate  firms  or  trust  com- 
panies advertising  to  secure  the  drawing  of  deeds 
or  wills,  or  offering  retainers  in  exchange  for 
executorships  or  trusteeships  to  be  influenced  by 
the  lawyer.  Indirect  advertisement  for  business, 
by  furnishing  or  inspiring  newspaper  comments 
concerning  causes  in  which  the  lawyer  has  been 
or  is  engaged,  or  concerning  the  manner  of  their 
conduct,  the  magnitude  of  the  interests  involved, 
the  importance  of  the  lawyer's  position,  and  all 
other  like  self-laudation,  defy  the  traditiuns  and 
lower  the  tone  of  our  high  calling,  and  are  in- 
tolerable. 

"28.  Stirring  up  litigation,  directly  or  through 
agents.  It  is  unprofessional  for  a  lawyer  to 
volunteer  advice  to  bring  a  lawsuit  except  in 
rare  cases,  where  ties  of  blood,  relationship, 
or  trust  make  it  his  duty  to  do  so.  Stirring  up 
strife  and  litigation  is  not  only  unprofessional, 
but  it  is  indictable  at  common  law.  It  is  dis- 
reputable to  hunt  up  defects  in  titles  or  other 
causes  of  action  and  inform  thereof,  in  order  to 
be  employed  to  bring  suit,  or  to  breed  litigation 
by  seeking  out  those  with  claims  for  personal  in- 
juries or  those  having  any  other  grounds  of  ac- 
tion, in  order  to  secure  them  as  clients,  or  to 
employ  agents  or  runners  for  like  purposes,  or 
to  pay  or  reward,  directly  or  indirectly,  those 
who  bring  or  influence  the  bringing  of  such  cases 
to  his  office,  or  to  remunerate  policemen,  court 
or  prison  officials,  physicians,  hospital  attaches, 
or  others  who  may  succeed,  under  the  guise  of 
giving  disinterested  friendly  advice,  in  influen- 
cing the  criminal,  the  sick,  and  the  injured,  the 
ignorant,  or  others,  to  seek  his  professional  ser- 
vices. A  duty  to  the  public  and  to  the  profes- 
sion devolves  upon  every  member  of  the  bar,  hav- 
ing knowledge  of  such  practices  upon  the  nart 
of  any  practitioner,  immediately  to  inform  there- 
of, to  the  end  that  the  offender  may  be  dis- 
barred. 

"29.  Upholding  the  honor  of  the  profession. 
Lawyers  should  expose  without  fear  or  favor,  be- 
fore the  proper  tribunals,  corrupt  or  dishonest 
conduct  in  the  profession,  and  should  accept  with- 
out hesitation,  employment  against  a  member  of 
the  bar  who  has  wronged  his  client.  The  counsel 
upon  the  trial  of  a  cause  in  which  perjury  has 
been  committed  owe  it  to  the  profession  and  to 
the  public  to  bring  the  matter  to  the  knowledge 
of  the  prosecuting  authorities.  The  lawyer  should 
aid  in  guarding  the  bar  against  the  admission  to 
the  profession  of  candidates  unfit  or  unqualified, 
because  deficient  in  either  moral  character  or 
education.  He  should  strive  at  all  times  to  up- 
hold the  honor  and  to  maintain  the  dignity  of 
the  profession,  and  to  improve  not  only  the  law, 
but  the  administration  of  justice. 

"30.  Justifiable  and  unjustifiable  litigations. 
The  lawyer  must  decline  to  conduct  a  civil  cause 
or  to  make  a  defense  when  convinced  that  it  is 
intended  merely  to  harass  or  to  injure  the  oppo- 
site party  or  to  work  oppression  or  wrong.  But 
otherwise  it  is  his  right,  and,  having  accepted 
retainer,  it  becomes  his  duty  to  insist  upon  the 
judgment  of  the  court  as  to  the  legal  merits  of 
his  client's  claim.  His  appearance  in  court  should 
be  deemed  equivalent  to  an  assertion  on  his  honor 
that,  in  his  opinion,  his  client's  case  is  one  proper 
for  judicial  determination. 

"31.  Eespoiisibility  for  litigation.  No  lawyer 
is  obliged  to  act  either  as  adviser  or  advocate 
for  every  person  who  may  wish  to  become  his 
client.  He  has  the  right  to  decline  employment. 
Every  lawyer,  upon  his  own  responsibility,  must 
decide  what  business  he  will  accept  as  counsel, 
what  causes  he  will  bring  into  court  for  plain- 
tiffs, what  causes  he  will  contest  in  court  for 
defendants.  The  responsibility  for  advising  ques- 
tionable transactions,  for  bringing  questionable 
suits,  for  ursine  questionable  defenses,  is  the 
lawyer's  responsibility.  He  cannot  escape  it  by 
urging  as  an  excuse  that  he  is  only  following 
his    client's    instructions. 

"32.  The  lawyer's  duty  in  Its  last  analysis. 
No  client,  corporate  or  individual,  however  power- 
ful, nor  any  cause,  civil  or  political,  however  im- 
portant, is  entitled  to  receive,  nor  should  any 
lawyer  render,  any  service  or  advice  involving 
disloyalty    to    the   law,    whose    ministers   we    are. 


139 


AUTHORITY. 


§283 


or  disrespect  of  the  judicial  office,  ■which  we  are 
bound  to  uphold,  or  corruption  of  any  person  or 
persons  exercising  a  public  office  or  private  trust, 
or  deception  or  betrayal  of  the  public.  When 
rendering  any  such  improper  service  or  advice, 
the  lawyer  invites  and  merits  stern  and  just  con- 
demnation. Correspondingly,  he  advances  the 
honor  of  his  profession  and  the  best  interests  of 
his  client  when  he  renders  sei'vice  or  gives  iidvice 
tending  to  impress  iipon  the  client  and  his  under- 
taking exact  compliance  with  the  strictest  prin- 
ciples of  moral  law.  He  must  also  observe  and 
.■idvise  his  client  to  observe  the  statute  law,  though 
until  a  statute  shall  have  been  construed  and 
interpreted  by  competent  adjudication,  he  is  free, 
and  is  entitled  to  advise  as  to  its  validity,  and 
as  to  what  he  conscientiously  believes  to  be  its 
just  meaning  and  extent.  But,  above  all.  a  law- 
yer will  find  his  highest  honor  in  a  deserved 
reputation  for  fidelity  to  private  trust  and  to  pub- 
lic duty,  as  an  honest  man  and  as  a  patriotic  and 
loyal  citizen." 

2.  General  rights  of  attorney  and  client. 
Counsel  fees,  etc.  An  attorney  has  a  lien  for  his 
costs  upon  a  judgment  recovered  by  him,  which 
may  be  enforced,  upon  giving  notice  to  the  ad- 
verse party  not  to  pay  the  judgment  until  the 
amount  of  the  costs  be  paid;  and  in  some  cases, 
where  there  has  been  collusion  between  the  par- 
ties to  cheat  the  attorney,  the  court  has  required 
the  client  to  satisfy  them.  But  this  practice  is 
confined  to  some  certain  and  fixed  amount  allowed 
to  an  attorney  by  statute,  and  is  not  extended 
to  cases  where  an  attorney  or  counselor  claims  a 
quantum  meruit  compensation  for  his  services. 
In  this  state  we  have  no  statute  giving  costs  to 
attorneys,  and  they  must  consequently  recover  for 
their  services  in  the  ordinary  mode.  Ex  parte 
Kyle,  1  Cal.  331.  And  as  to  compensation  of  at- 
torneys, see  further,  Mansfield  v.  Borland,  2  Cal. 
507;  Carriere  v.  Minturn,  5  Cal.  435. 

3.  Retaining  fee  in  advance.  An  attorney  is 
entitled  to  his  retaining  fee  in  advance,  unless  he 
stipulates  to  the  contrary.  Cavillaud  v.  Yale,  3 
Cal.  lOS;  59  Am.  Dec.  388.  In  a  suit  for  com- 
pensation, as  attorney  in  a  certain  proceeding,  it 
is  not  competent  to  prove  the  value  of  the  attor- 
ney's services  in  another  proceeding.  A  person 
who  is  not  a  lawyer  is  an  incompetent  witness  to 
prove  the  value  of  legal  services.    Hart  v.  Vidal, 


6  Cal.  56.  How  receivers,  authorized  to  appoint 
and  retain  counsel,  and  to  stipulate  that  the  com- 
pensation of  such  counsel  shall  be  left  to  the  dis- 
cretion of  the  court,  shall  provide  for  the  pay- 
ment of  such  compensation.  See  Adams  v.  Wood, 
8  Cal.  306.  In  suits  by  attorneys  to  recover 
compensation  for  legal  services,  unskillful  or  negli- 
gent conduct  or  the  skill  employed  in  the  case  is 
an  important  inquiry.  A  suit  may  be  won,  and 
yet  the  attorney  be  guilty  of  great  negligence, 
etc.     Bridges  v.  Paige,  13  Cal.  642. 

[3a.]  Negligence  of  or  mismanagement  by  at- 
torney. Wh;it  must  be  shown  to  establish  negli- 
gence on  part  of  attorney.  Hastings  v.  Halleck, 
13  Cal.  203.  Where,  through  the  fault  of  an  at- 
torney, judgment  is  rendered  against  the  client, 
the  latter  has  a  remedy  against  the  attorney,  but 
the  judgment  remains  undisturbed,  unless  some 
fraud  or  collusion,  etc.,  on  the  part  of  the  attor- 
ney is  shown.  Sampson  v.  Ohleyer,  22  Cal.  210, 
and  cases  therein  cited.  As  to  bargain.s  by  an 
attorney  with  a  client,  of  advantage  to  the  for- 
mer, protection  of  the  client  in  such  matters, 
see  Kisling  v.  Shaw,  33  Cal.  425;  91  Am.  Dec. 
644.  For  instances  of  gross  mismanagement  by 
an  attorney,  see  Drais  v.  Hogan,  50  Cal.  121. 

4.  Employing  only  truthful  means.  Seeking  to 
mislead  judges.  See  case  of  Fletcher  v.  Dainger- 
fiebl,  2(1  <  al.  ■l•^7. 

5.  Must  preserve  the  secrets  of  his  client.  Val- 
entine V.  Stewart,  15  Cal.  387;  Gallagher  v.  Wil- 
liamson, 23  Cal.  331;  83  Am.  Dec.  114;  Kisling 
V.  Shaw,  33  Cal.  425;  91  Am.  Dec.  644;  People 
v.  Atkinson,  40  Cal.  284.  What  are  not  privi- 
leged communications.  Hager  v.  Shiudler,  29  Cal. 
47  ;  Satlerlee  v.  Bliss,  36  Cal.  489. 

6.  Espouse  the  cause  of  the  defenseless.  De- 
fend persons  accused  of  crime.  It  is  part  of 
the  general  duty  of  counsel  to  render  their  pro- 
fessional services  to  persons  accused  of  crime, 
who  are  destitute  of  means,  upon  the  appoint- 
ment of  the  court,  when  not  inconsistent  with 
their  obligations  to  others;  and  for  compensation 
they  must  trust  to  the  possible  future  ability  of 
the  parties.  Counsel  are  not  considered  at  liberty 
to  reject,  under  circumstances  of  such  chiracter, 
the  cause  of  the  defenseless  because  no  provision 
for  their  compensation  is  made  by  law.  Rowe  v. 
Yuba  County,  17  Cal.  61. 


§  283.     Authority.     An  attorney  and  counselor  shall  have  authority: 

1.  To  bind  his  client  in  any  of  the  steps  of  an  action  or  proceeding  by  his 
agreement  filed  with  the  clerk,  or  entered  upon  the  minutes  of  the  court,  and 
not  otherwise; 

2.  To  receive  money  claimed  by  his  client  in  an  action  or  proceeding  dur- 
ing the  pendency  thereof,  or  after  judgment,  unless  a  revocation  of  his 
authority  is  filed,  and  upon  the  payment  thereof,  and  not  otherwise,  to  dis- 
charge the  claim  or  acknowledge  satisfaction  of  the  judgment. 

Rogers,  13  Cal.  191;  Sampson  v.  Ohleyer, 
22  Cal.  200);  but  the  attorney  cannot  com- 
promise an  action,  in  defiance  of  the  pro- 
test of  his  client  in  open  court.  Preston  v. 
Hill,  50  Cal.  43;  19  Am.  Eep.  647.  An 
authority  peculiar  to  his  character  as  at- 
torney, in  the  discharge  of  his  duties  and 
functions,  is  conferred  by  this  section. 
Alpers  V.  Hunt,  86  Cal.  78;  21  Am.  St.  Rep. 
17;  9  L.  R.  A.  483;  24  Pac.  846.  This  sec- 
tion refers  only  to  the  "steps  of  an  action" 
after  it  has  been  instituted,  and  pertaining 
to  its  conduct;  it  has  no  application  to  a 
contract  made  before  the  commencement 
of  the  action.  Ephraim  v.  Pacific  Bank,  149 
Cal.  222;  86  Pac.  .507.  So  long  as  the  at- 
torney remains  of  record,  his  right  to 
manage   and   control   the   action   cannot   be 


Legislation  §  283.    1.  Enacted  March  11,  1873. 

3.  Amended  by  Code  Amdts.  1S80,  p.  57, 
changing  "counselor  shall  have"  from  "counselor 
has." 

General  authority.  The  nature  of  the 
relation  of  attorney  and  client  is  that  of 
principal  and  agent;  the  attorney  is  the 
agent  of  his  client  for  all  purposes  of  con- 
ducting the  particular  litigation  (Carter  v. 
Green  Mountain  Gold  Mining  Co.,  83  Cal. 
222;  23  Pac.  317);  but  his  authority  is 
broader  than  that  of  an  ordinary  agent; 
and  because  of  the  particular  nature  of  his 
duties,  he  is  vested  vs'ith  discretionary 
power  of  decision  in  the  management  and 
conduct  of  the  litigation,  and  may  bind  his 
client  by  consenting  to  a  judgment  against 
him,  in  the  absence  of  fraud  or  collusion 
or  insolvency  on  his  ow^n  part   (Holmes  v. 


283 


ATTORNEYS  AND  COUNSELORS  AT  LAW. 


140 


questioned  by  the  client  (Wylie  v.  Sierra 
Gold  Co.,  120  Cal.  485;  52  Pac.  809),  and 
of  course  the  opposite  party  cannot  ques- 
tion it.   Board  of  Commissioners  v.  Younger, 

29  Cal.  147;  87  Am.  Dec.  164.  An  attorney 
appears  in  a  cause  and  participates  in  the 
proceedings  therein  by  the  license  of  the 
court,  of  wnich  he  is  an  officer.  Clark  v. 
Willett,  35  Cal.  534.  An  attorney  in  fact, 
who  is  also  an  attorney  at  law,  however, 
has  no  right  to  sign  a  complaint  as  plain- 
tiff's attorney.  Dixey  v.  Pollock,  8  Cal. 
570.  A  person's  authority  to  enter  into  a 
stipulation  does  not  follow  from  his  gen- 
eral retainer  as  an  attorney.  Teich  v.  San 
Jose  Safe  Deposit  Bank,  8  Cal.  App.  397; 
97  Pac.  167.  An  attorney  employed  by  a 
person  whose  property  has  been  stolen,  to 
assist  the  district  attorney  in  the  prosecu- 
tion of  several  cases  against  the  alleged 
thieves,  with  authority  to  take  such  meas- 
ures as  he  deems  expedient,  has  power  to 
bind  his  client  by  the  employment  of  a 
detective  to  seek  and  obtain  evidence  in 
furtherance  of  the  prosecution.  Kast  v. 
Miller  &  Lux,  159  Cal.  723;  115  Pac.  932. 
In  this  title  and  chapter,  the  term  "attor- 
ney," "counselor,"  "attorney  at  law,"  are 
used  synonymously.  Pittman  v.  Carsten- 
brook,  11  Cal.  App.  224;  104  Pac.  699. 

MaJiner  of  exercising  authority.  The 
object  of  this  section  is,  that,  whenever 
an  attorney  shall  enter  into  an  agreement 
for  the  purpose  of  binding  his  client,  there 
shall  be  such  a  record  thereof  as  will  pre- 
clude any  question  concerning  its  character 
or  effect,  and  that  the  extent  of  the  agree- 
ment may  be  ascertained  by  the  record;  if 
oral,  that  it  shall  be  entered  in  the  min- 
utes, and  if  written,  that  it  shall  be  filed 
with  the  clerk;  it  is  not  intended  to  enlarge 
or  abridge  the  authority  of  the  attorney, 
but  only  to  prescribe  the  manner  of  its 
exercise   (Smith  v.  Whittier,  95   Cal.   279; 

30  Pac.  529;  Preston  v.  Hill,  50  Cal.  43;  19 
Am.  Eep.  647;  Eeclamation  District  v.  Ham- 
ilton, 112  Cal.  603;  44  Pac.  1074);  but  it 
is  not  intended  that  every  admission  or 
agreement  made  during  the  course  of  the 
trial  shall  either  be  in  writing  or  entered 
in  the  minutes;  such  a  literal  construction 
might  lead  to  absurd  consequences.  Con- 
tinental Building  etc.  Ass'n  v.  Woolf,  12 
Cal.  App.  725;  108  Pac.  729. 

Verbal  stipulations.  A  verbal  stipulation 
by  an  attorney,  made  during  the  progress 
of  a  trial,  and  not  entered  in  the  minutes, 
does  not  bind  the  client  (Merritt  v.  "Wil- 
cox, 52  Cal.  238) ;  but  when  entered  in  the 
minutes  it  is  binding,  and  is  a  part  of  the 
judgment  roll.  Kent  v.  San  Francisco  Sav. 
Union,  130  Cal.  401;  62  Pac.  620.  A  verbal 
stipulation,  not  entered  in  the  minutes  nor 
filed  with  the  clerk,  cannot  be  regarded, 
except  so  far  as  it  is  admitted  by  the  par- 
ties against  whom  it  is  sought  to  be  en- 
forced, or  has  been  wholly  or  in  part  exe- 
cuted   (McLaughlin    v,    Clausen,    116    Cal. 


487;  48  Pac.  487);  but  a  verbal  stipulation 
may  be  taken  into  consideration  by  the 
court,  in  the  exercise  of  its  discretion,  upon 
a  motion  to  set  aside  a  default,  even  though 
it  is  not  entered  in  the  minutes.  McGowan 
v.  Kreling,  117  Cal.  31;  48  Pac.  980.  "This 
section  does  not  require  the  construction, 
that  in  no  instance  shall  an  agreement, 
which  the  attorney  may  make  in  behalf  of 
his  client,  be  binding,  unless  entered  in 
the  minutes  of  the  court  or  filed  with  the 
clerk;  its  provisions  have  reference  to  ex- 
ecutory agreements,  and  not  to  those  which 
have  been  wholly  or  in  part  executed;  and 
it  was  with  reference  to  oral  agreements 
of  an  executory  character  that  the  court 
said,  in  its  opinion  in  Borkheim  v.  North 
British  etc.  Ins.  Co.,  38  Cal.  623,  'of  such 
agreements,  therefore,  there  can  be  no  spe- 
cific performance';  if,  under  the  terms  of  a 
mutual  stipulation  which  was  only  verbal, 
one  party  has  received  the  advantage  for 
which  he  entered  into  it,  or  the  other  party 
has,  at  his  instance,  given  up  some  right 
or  lost  some  advantage,  so  that  it  would  be 
inequitable  for  him  to  insist  that  the  stipu- 
lation was  invalid,  he  will  not  be  permitted 
to  repudiate  the  obligation  of  his  own 
agreement  upon  the  ground  that  it  had  not 
been  entered  in  the  minutes  of  the  court 
(Himmelmann  v.  Sullivan,  40  Cal.  125; 
Hawes  v.  Clark,  84  Cal.  272;  24  Pac.  116); 
if  the  party  admits  that  he  made  such 
verbal  stipulation,  it  will  be  as  binding 
upon  him  as  if  it  had  been  entered  in  the 
minutes  of  the  court."  Smith  v.  Whittier, 
95  Cal.  279;  30  Pac.  529;  Patterson  v.  Ely, 
19  Cal.  28;  Reese  v.  Mahoney,  21  Cal.  305; 
Johnson  v.  Sweeney,  95  Cal.  304;  30  Pac. 
540;  Hearne  v.  De  Young,  111  Cal.  373;  43 
Pac.  1108;  Reclamation  District  v.  Ham- 
ilton, 112  Cal.  603;  44  Pac.  1074;  Mc- 
Laughlin V.  Clausen,  116  Cal.  487;  48  Pac. 
487;  Crane  v.  Crane,  121  Cal.  99;  53  Pac. 
433;  Coonan  v.  Loewenthal,  129  Cal.  197; 
61  Pac.  940;  Daneri  v.  Gazzola,  139  Cal. 
416;  73  Pac.  179.  An  unauthorized  stipula^ 
tion  may  be  enforced,  even  if  it  does  not 
comply  with  the  terms  of  this  section,  if 
it  is  not  forbidden  by  some  other  statute 
or  by  some  principle  of  law.  Wall  v.  Mines, 
130  Cal.  27;  62  Pac.  386.  Courts  refuse  to 
settle  disputes  in  regard  to  verbal  agree- 
ments, or  to  try  collateral  issues  for  the 
purpose  of  determining  whether  any  agree- 
ment has  been  made.  Johnson  v.  Sweeney, 
95  Cal.  304;  30  Pac.  540;  Smith  v.  Whittier, 
95  Cal.  279;  30  Pac.  529;  Hearne  v.  De 
Young,  111  Cal.  373;  43  Pac.  1108;  Mc- 
Laughlin V.  Clausen,  116  Cal.  487;  48  Pac. 
487;  McGowan  v.  Kreling,  117  Cal.  31;  48 
Pac.  9S0.  Where  admissions  or  stipula- 
tions of  an  attorney  in  behalf  of  his  client, 
being  yet  executory,  are  denied,  the  only 
proof  of  their  validity  rests  upon  a  compli- 
ance with  the  code  provision,  and  no  other 
proof  can  be  received  (Hearne  v.  De 
Young,  11  Cal.  373;  43  Pac.  1108);  but  if 


141 


AUTHORITY. 


§283 


the  record  shows  the  admission  of  a  fact 
which  makes  the  stipulation  unnecessary, 
and  that  the  court  acted  upon  such  admis- 
sion, and  embodied  it  in  the  bill  of  excep- 
tions, the  fact  cannot  be  traversed  upon 
appeal.  Hearne  v.  De  Young,  111  Cal.  373; 
43  Pac.  1108;  Patterson  v.  Ely,  19  Cal.  28; 
Reese  v.  Malioney,  21  Cal.  305;  Himmel- 
mann  v.  Sullivan,  40  Cal.  125;  Hawes  v. 
Clark,  84  Cal.  272;  24  Pac.  116;  Smith  v. 
Whittier,  95  Cal.  279;  30  Pac.  529.  An  ad- 
mission of  counsel,  in  open  court,  as  to 
immoral  conduct  of  his  client,  even  though 
in  excess  of  his  authority  under  the  above 
section,  is  not  a  ground  of  reversal,  where 
it  clearly  appears  that  the  defendant  was 
not  iniured  therebv.  Qucirolo  v.  Queirolo, 
129  Cal.  686;  82  Pac.  315. 

Written  agreement  not  filed.  The  same 
principles  are  applicable  to  the  enforce- 
ment of  a  written  agreement  not  filed,  as 
govern  a  verbal  agreement  not  entered  in 
the  minutes  of  the  court.  Smith  v.  Whit- 
tier, 95  Cal.  279;  30  Pac.  529. 

Authority  to  appear  for  party.  An  at- 
torney's license  is  prima  facie  evidence  of 
his  authority  to  appear  for  the  person  he 
professes  to  represent  (Clark  v.  Willett,  35 
Cal.  534;  People  v.  Mariposa  County,  39 
Cal.  683);  and  it  will  be  presumed,  where 
an  attornej'-  signs  a  paper,  that  he  was 
authorized  so  to  do.  Ricketson  v.  Torres, 
23  Cal.  636.  The  unauthorized  appearance 
of  an  attorney,  where  there  is  no  fraud 
and  no  allegation  of  insolvency  on  the  part 
of  the  attorney,  does  not  give  the  party  a 
right  to  assail  the  judgment  on  that  ground. 
Holmes  v.  Rogers,  13  Cal.  191.  The  unau- 
thorized appearance  of  an  attorney  may  be 
set  aside  (Garrison  v.  McGowan,  48  Cal. 
592) ;  but  a  default  judgment  entered 
against  a  defendant  will  not  be  vacated, 
where  he  was  informed  of  tlie  fact  of  the 
unauthorized  appearance,  but  took  no  steps 
to  set  it  aside.  Scale  v.  McLaughlin,  28 
Cal.  668.  A  party  cannot  repudiate  an 
unauthorized  appearance  after  three  years, 
for  the  purpose  of  obtaining  a  dismissal  on 
the  ground  that  the  summons  was  not  re- 
turned within  the  time  prescribed  by  law. 
Pacific  Paving  Co.  v.  Vizelich,  141  Cal.  410; 
74  Pac.  352;  and  see  also  Baker  v.  O'Rior- 
dan,  65  Cal.  368;  4  Pac.  232;  Hill  v.  City 
Cab  etc.  Co.,  79  Cal.  188;  21  Pac.  728; 
Hunter  v.  Bryant,  98  Cal.  247;  33  Pac.  51. 
A  parol  agreement  of  employment  is  suffi- 
cient; it  is  not  necessary  for  an  attorney 
to  show  his  authority,  unless  questioned  by 
a  proper  plea.  Holmes  v.  Rogers,  13  Cal. 
191;  Turner  v.  Caruthers,  17  Cal.  431; 
Hayes  v.  Shattuck,  21  Cal.  51;  Ricketson 
V.  Torres,  23  Cal.  636;  Willson  v.  Cleave- 
land,  30  Cal.  192;  Garrison  v.  McGowan,  48 
Cal.  592;  Boston  Tunnel  Co.  v.  McKenzie, 
67  Cal.  485;  8  Pac.  22.  The  adverse  party 
or  his  attorney,  upon  a  mere  suggestion  at 
the  bar,  cannot  deny  the  right  of  a  party 
to   appear  by  the  attorney   of   record,   nor 


deny  that  the  attorney  so  appearing  has 
full  authority  to  prosecute  the  suit;  the 
proper  procedure  is  a  motion  to  dismiss, 
founded  upon  affidavit  of  want  of  author- 
ity, made  by  the  party  whom  the  attorney 
assumes  to  represent.  Turner  v.  Caruthers, 
17  Cal.  431;  Clark  v.  Wilktt,  35  Cal.  534; 
People  V.  Mariposa  County,  39  Cal.  683. 
Where  there  are  several  parties,  each  hav- 
ing separate  attorneys,  one  of  the  attorneys 
cannot  act  for  a  party  he  does  not  repre- 
sent (Hobbs  V.  Duff,  43  Cal.  485);  but 
where  he  does  so  act  for  another  defendant, 
it  will  be  presumed  that  he  has  done  so 
with  the  authority  of  the  attorney  for  such 
party.  McCreery  v.  Everding,  44  Cal.  284. 
Where  an  attorney  appears  for  two  or  more 
persons,  and  signs  as  "attorr.ey  for  de- 
fendants," such  appearance  will  be  limited 
to  the  defendants  for  whom  he  expressly 
appears.     Spangel  v.  Bellinger,  42  Cal.  148. 

Extent  of  authority  to  bind  client.  An 
attorney  may  acknowledge  the  service  of 
papers;  but  such  an  acknowledgment  does 
not  carry  an  admission  of  the  things  re- 
cited therein  (Estate  of  More,  143  Cal. 
493;  77  Pac.  407);  nor  is  it  a  waiver  of 
the  objection  that  the  service  was  too  late. 
Towdy  v.  Ellis,  22  Cal.  650.  The  right  of 
an  attorney  to  sign  pleadings  binding  his 
client  will  be  presumed.  Coward  v.  Clan- 
ton,  79  Cal.  23;  21  Pac.  359;  Duff  v.  Duff, 
71  Cal.  513;  12  Pac.  570;  Kamm  v.  Bank 
of  California,  74  Cal.  191;  15  Pac.  765.  He 
may  stipulate  that  one  action  shall  abide 
and  be  determined  by  the  result  of  another 
action,  and  that  final  judgment  may  be 
entered  upon  such  determination  (Gilmore 
V.  American  Central  Ins.  Co.,  67  Cal.  366; 
7  Pac.  781;  Hills  v.  Sherwood,  33  Cal. 
474);  and  he  may  enter  a  judgment  of 
retraxit  against  his  client  (Merritt  v. 
Campbell,  47  Cal.  542;  Board  of  Commis- 
sioners V.  Younger,  29  Cal.  147;  87  Am. 
Dec.  164) ;  and  he  may  agree  that  the 
court  may  find  additional  facts  to  cover 
all  the  questions  raised  by  the  pleadings 
(Marius  v.  Bicknell,  10  Cal.  217);  that 
damages  may  be  assessed  in  currency 
(Dreyfous  v.  Adams,  48  Cal.  131);  that  a 
deposition  may  be  read  in  evidence  (Rob- 
inson v.  Placerville  etc.  R.  R.  Co.,  65  Cal. 
263;  3  Pac.  878),  and  with  the  same  force 
and  effect,  and  subject  to  the  same  excep- 
tions, as  if  taken  in  the  case  on  trial 
(Brooks  V.  Crosby,  22  Cal.  42;  King  v. 
Haney,  46  Cal.  560;  13  Am.  Rep.  217);  and 
he  has  power  to  extend  the  time  for  giving 
notice  of  appeal  (Simpson  v.  Budd,  91  Cal. 
488;  27  Pac.  758),  and  of  a  motion  for  a 
new  trial  (Simpson  v.  Budd,  91  Cal.  488; 
27  Pac.  758;  Hobbs  v.  Duff,  43  Cal.  485;' 
Gray  v.  Nunan,  63  Cal.  220;  Patrick  v. 
Morse,  64  Cal.  462;  2  Pac.  49;  Briehman  v. 
Ross,  67  Cal.  601;  8  Pac.  316) ;  and  to  agree 
to  the  facts  upon  which  the  cause  shall  be 
determined  (Hess  v.  Bolinger,  48  Cal.  349), 
such  an  agreement  being  like  an  admission 


283 


ATTORNEYS  AND  COUNSELORS  AT  LAW. 


142 


in  the  pleadings  as  to  the  facts  thus  stipu- 
lated (Muller  V.  Eowell,  110  Cal.  318;  42 
Pac.  804) ;  and  he  has  power  to  agree  that 
a  motion  for  a  new  trial  may  be  denied 
(Meerholz  v.  Sessions,  9  Cal.  277;  Brother 
ton  V.  Hart,  11  Cal.  405;  Mecham  v.  Mc- 
Kay, 37  Cal.  154;  San  Francisco  v.  Certain 
Eeal  Estate,  42  Cal.  513;  Erlanger  v.  South- 
ern Pacific  R.  R.  Co.,  10&  Cal.  395;  42  Pac. 
31;  Reay  v.  Butler,  118  Cal.  113;  50  Pac. 
375) ;  but  where  the  agreement  for  the  de- 
nial of  a  motion  for  a  new  trial  is  merely 
for  the  purpose  of  facilitating  the  appeal, 
the  court  will  review  the  question  upon 
appeal.  Mecham  v.  McKay,  37  Cal.  154. 
He  has  power  to  agree  to  the  time  of  ser- 
vice of  statement  on  motion  for  a  new 
trial  (Mills  v.  Dearborn,  82  Cal.  51;  22 
Pac.  1114);  and  to  stipulate  as  to  a  tran- 
script on  appeal  (McCreery  v.  Everding,  44 
Cal.  246),  and  that  the  same  is  true  and 
correct  (Weil  v.  Paul,  22  Cal.  492;,  God- 
chaux  V.  Mulford,  2-6  Cal.  316;  85  Am.  Dee. 
178);  but  such  a  stipulation  merely  obvi- 
ates the  necessity  of  a  certificate  by  the 
clerk  (Todd  v.  Winants,  36  Cal.  129;  Leon- 
ard V.  Shaw,  114  Cal.  69;  45  Pac.  1012), 
and  is  a  substitute  for  the  clerk's  certifi- 
cate to  the  correctness  of  the  transcript 
(Wetherbee  v.  Carroll,  33  Cal.  549);  it 
does  not  waive  the  record  required  by  law 
(Siebe  v.  .Joshua  Hendy  Machine  Works, 
86  Cal.  390;  25  Pac.  14;  Leonard  v.  Shaw, 
114  Cal.  69;  45  Pac.  1102).  He  also  has 
power  to  waive  findings  of  fact  (Dough- 
erty V.  Friermuth,  68  Cal.  240;  9  Pac.  98; 
Smith  V.  Whittier,  95  Cal.  279;  30  Pac. 
529) ;  to  waive  all  errors  in  the  record, 
after  service  of  notice  of  appeal  (Glotz- 
back  v.  Foster,  11  Cal.  37),  and  to  waive 
the  signature  of  the  judge  to  the  bill  of 
exceptions.  Sarver  v.  Garcia,  49  Cal.  218; 
and  see  Meredith  v.  Santa  Clara  Mining 
Ass'n,  60  Cal.  617.  But  an  attorney  has 
no  authority  to  instruct  a  sheriff  to  con- 
duet  a  business  attached,  and  thereby  bind 
his  client  for  expenses  incurred  (Alexander 
v.  Denaveaux,  53  Cal.  663;  affirmed,  59 
Cal.  476),  or  to  compromise  an  action  he 
is  employed  to  prosecute  or  defend  (Am- 
brose V.  McDonald,  53  Cal.  28;  Commercial 
Union  Assur.  Co.  v.  American  Central  Ins. 
Co.,  68  Cal.  430;  9  Pac.  712;  Trope  v. 
Kerns,  83  Cal.  553;  23  Pac.  691;  Smith  v. 
Whittier,  95  Cal.  279;  30  Pac.  529;  Knowl- 
ton  V.  Mackenzie,  110  Cal.  183;  42  Pac. 
580;  Reclamation  District  v.  Hamilton, 
112  Cal.  603;  44  Pac.  1074),  or,  under  his 
general  employment,  to  submit  a  client's 
cause  to  arbitration  (Bates  v.  Visher,  2 
Cal.  355),  or  to  stipulate  for  the  dismissal 
of  an  action,  where  the  party  he  represents 
has  parted  with  his  interest  to  another, 
who  prosecutes  in  his  name  (Walker  v. 
Felt,  54  Cal.  386;  Mastick  v.  Thorp,  29  Cal. 
444;  Dutton  v.  Warschauer,  21  Cal.  609;  82 
Am.  Dee.  765) ;  nor  can  he,  against  the 
objection  of  his  client,  compromise  an  ac- 
tion, and  consent  to  judgment  against  him 


(Preston  v.  Hill,  50  Cal.  43;  19  Am.  Rep. 
647);  nor  has  he  authority  to  convey  the 
title  to  his  client's  land.  Ryan  v.  Tomlin- 
son,  31  Cal.  11. 

Termination  of  authority.  Under  a  gen- 
eral retainer,  the  authority  of  an  attorney 
terminates  with  the  entry  of  final  judg- 
ment, except  for  the  purpose  of  enforcing 
it.  Knowlton  v.  Mackenzie,  110  Cal.  183; 
42  Pac.  580.  He  has  authority  to  take  out 
execution,  and  procure  a  levy  thereof, 
and  receive  and  collect  money  thereunder. 
Jones  V.  Spear,  56  Cal.  163.  The  death  of 
the  client  also  terminates  the  employment 
and  authority  of  the  attorney,  and  no  sub- 
sequent steps  can  be  taken  in  the  case 
under  the  employment.  .Judson  v.  Love,  35 
Cal.  463;  Movie  v.- Landers,  78  Cal.  99;  12 
Am.  St.  Rep.' 22;  20  Pac.  241.  But  where, 
upon  the  death  of  the  party,  pending  an 
appeal,  the  attorney  becomes  the  attorney 
for  his  executors,  he  may  move  to  dismiss 
the  appeal  without  a  formal  substitution, 
if  no  substitution  be  made  before  the  hear- 
ing of  the  motion.  Whartenby  v.  Reay,  92 
Cal.  74;  28  Pac.  56.  Upon  the  death  of 
one  member  of  a  firm  of  attorneys,  the 
client  has  the  right  to  terminate  the  em- 
ployment. Little  V.  Caldwell,  101  Cal.  553; 
40  Am.  St.  Rep.  89;  36  Pac.  107. 

Presumption  in  favor  of  authority  of  attorney. 
See  note   16  Am.  Dec.  98. 

Power  of  client  over  attorney.  See  note  87 
Am.   Dec.   166. 

Authority  of  attorney  to  accept  as  payment  a 
sum  less  than  due.  See  notes  41  Am.  Rep.  847; 
31  L.  R.  A.   (N.   S.)    523. 

Extent  of  client's  control  of  cause.  See  note 
93   Am.   St.   Rep.   170. 

Implied  authority  of  attorney.  See  note  132 
Am.   St.   Rep.   119. 

Implied  authority  of  attorney  to  prosecute  pro- 
ceedings for  review.    See  note   16  Ann.  Cas.   928. 

Right  of  attorney  to  employ  associate  counsel 
or  assistants  at  expense  of  client.  See  note  15 
Ann.  Cas.  1180. 

Authority  of  attorney  to  incur  expenses  inci- 
dent to  suit  for  client.  See  notes  Ann.  Cas. 
1912D,   313;   23   L.  R.   A.    (X.   S.)    702. 

Power  of  attorney  to  withdraw  answer  or  ap- 
pearance and  permit  a  default  judgment.  See 
note  33  L.  R.  A.  515. 

Authority  of  attorney  to  discontinue  suit.  See 
note  4  L.  R.  A.   (N.  S.)   244. 

Authority  of  attorney  to  enter  retraxit.  See 
note  25  L.  R.  A.    (N.  S.)    1313. 

CODE  COMMISSIONERS'  NOTE.  1.  Extent 
of  attorney's  authority.  As  to  the  extent  of  an 
attorney's  authority,  and  wlien  it  is  presumed, 
see  Turner  v.  Caruthers,  17  Cal.  431;  Haves  v. 
Shattuck,  21  Cal.  51;  Ricketson  v.  Torres.  23 
Cal.  636:  Holmes  v.  Rogers,  13  Cal.  191;  Willson 
V.  Cleaveland,  30  Cal.  192;  People  v.  Mariposa 
County,  39  Cal.  683. 

2.  Attorney  in  fact,  but  not  attorney  at  law. 
An  attorney  in  f.<ict,  who  is  not  an  att.-irney  at 
law,  is  not  authorized  to  sign  for  his  principal  a 
complaint  as  "plaintiff's  attorney."  An  action  so 
instituted  is  void,  as  if  commenced  by  an  entire 
stranger  without  authority.  Dixey  v.  Pollock,  8 
Cal.  .570. 

3.  Power  to  bind  client.  Hart  v.  Spalding,  1 
Cal.  213;  Holmes  v.  Rogers,  13  Cal.  191.  The 
agreement  of  an  attorney  to  bind  a  client  in  pro- 
ceedings at'  law  must  be  in  writing,  and  filed  with 
the  clerk,  or  entered  on  the  minutes.  Smith  v. 
Pollock.  2  Cal.  92.  An  ap;reement  of  counsel  for 
a  continuance,  not  reduced  to  writing,  will  be 
disregarded   by    the    court.     Peralta    v.    Mariea.    3 


143 


CHANGE    OF    ATTORNEY. 


§284 


ney  has  no  power  to  farther  act  for  him,  and 
could  not  even  give  notice  of  a  new  trial.  Jud- 
son  V.  Love,  35  Cal.  4(5.'!, 

4.  Notice  to  attorney  is  notice  to  client.  A 
client  charged  with  notice  of  all  errors  of  miscon 
duct  in  the  course  of  the  trial,  etc.,  which  were 
known  to  his  attorney.  Hoogs  v.  Morse,  31  Cal. 
129.  Notice  to  an  attorney  is  notice  to  the 
client,  and  he  is  bound  thereby.  Bierce  v.  Red 
Bluff  Hotel  Co.,  31  Cal.  160. 


Cal.  185.  An  attorney  for  a  party  in  a  proceed- 
ing to  determine  conflicting  claims  to  town  lots 
cannot,  after  the  board  of  trustees  of  the  town 
have  awarded  the  lot  to  his  client,  pass  the  client's 
right  by  a  stipulation  in  the  case  for  the  entry 
of  a  void  judgment.  Ryan  v.  Tomlinson.  31  Cal. 
11.  A  client  cannot  dismiss  a  suit  if  his  attor- 
ney of  record  oppose  it.  Board  of  Commissioners 
v.  Younger,  29  Cal.  147;  87  Am.  Dec.  164.  If 
a  party   to   a   suit   dies   after  judgment,   his   attor- 

§  284.  Change  of  attorney.  The  attorney  in  an  action  or  special  proceed- 
ing may  be  changed  at  any  time  before  or  after  judgment  or  final  deter- 
mination, as  follows : 

1.  Upon  consent  of  both  client  and  attorney,  filed  with  the  clerk,  or 
entered  upon  the  minutes ; 

2,  Upon  the  order  of  the  court,  upon  the  application  of  either  client  or 
attorney,  after  notice  from  one  to  the  other. 


Notice  of  substitution.    See  infra,  §  285.    - 

Legislation  §  284.  1.  Enacted  March  11,  1873, 
and  then  read:  "The  attorney  in  an  action  or 
special  proceeding  may  be  changed  at  any  time 
before  judgment  or  final  determination,  as  fol- 
lows: 1.  Upon  his  own  consent,  filed  with  the 
clerk  or  entered  upon  the  minutes ;  2.  Upon  the 
order  of  the  court  or  judge  thereof,  upon  the  ap- 
plication of  the   client." 

3.  Amended  by  Code  Amdts.  1873-74,  p. 
289,  adding  at  the  end  of  subd.  2  the  words 
"after   notice   to   the   attorney." 

3.   Amended  by  Code  Amdts.  1880,  p.  57. 

Change  of  attorney.  The  change  or  sub- 
stitution of  attorneys  is  regulated  by  this 
section  (Withers  v.  Little,  56  Cal.  370) ; 
but  it  has  no  application  to  criminal  eases. 
Ex  parte  Clarke,  62  Cal.  490;  People  v. 
Garnett,  9  Cal.  App.  194;  98  Pac.  247.  An 
order  associating  a  new  attorney  with  the 
attorney  of  record,  is  not  authorized  by 
the  practice  prescribed  by  this  section. 
Preseott  v.  Salthouse,  53  Cal.  221.  The 
substitution  of  attorneys  does  not  relieve 
a  party  from  an  obligation  created  by  his 
attorney  while  of  record.  Smith  v.  Whit- 
tier,  95"  Cal.  279;  30  Pac.  529.  Service  on 
an  attorney  who  has  not  been  formally  sub- 
stituted, but  who  has  repeatedly  appeared 
in  the  proceedings,  is  sufficient  to  bind 
the  client.  Golden  Gate  Cons.  etc.  Mining 
Co.  V.  Superior  Court,  65  Cal.  187;  3  Pac. 
628.  A  notice  of  motion  for  a  new  trial 
cannot  be  signed  by  one  who  is  not  the 
attorney  of  record  (McMahon  v.  Thomas, 
114  Cal.  5SS;  46  Pac.  732;  Hobbs  v.  Duflf, 
43  Cal.  485;  Preseott  v.  Salthouse.  53  Cal. 
221;  Whittle  v.  Eenncr,  55  Cal.  395),  but 
a  notice  of  appeal  mav.  McDonald  v.  Mc- 
Conkey,  54  Cal.  143. 

By  consent.  The  consent  of  the  attor- 
ney and  the  client  makes  the  change  com- 
plete (Withers  v.  Little.  56  Cal.  370);  and 
the  authority  of  the  substituted  attorney 
cannot  be  inquired  into  by  the  attorney 
for  the  adverse  party.  Withers  v.  Little, 
56  Cal.  370.  Such  adverse  attorney  waives 
objection  to  the  service  of  papers  from  the 
substituted  attorney  by  accepting  service 
thereof.  McDonald  v.  McConkey,  54  Cal. 
143.  If  he  intends  to  rely  upon  a  want  of 
proper  substitution,  it  is  his  duty  to  refuse 


to  receive  papers  from  the  substituted  at- 
torney, and  abstain  from  joining  in  stipu- 
lations with  him.  Livermore  v.  Webb,  56 
Cal.  489. 

By  order  of  court.  Absent  heirs  and 
legatees  have  the  absolute  right  to  have  an 
attorney  selected  by  themselves  substi- 
tuted for  one  appointed  by  the  court  (Lee 
V.  Superior  Court,  112  Cal.  354;  44  Pac. 
666);  but  an  order  of  the  court  substi- 
tuting a  new  attorney  does  not  authorize  a 
guardian  to  make  a  contract  with  the  new 
attorney,  affecting  the  property  of  the 
minor.  'McKee  v.  Hunt,  142  Cal.  526;  77 
Pac.  1103.  The  notice  of  application  to 
substitute  must  be  in  writing  (Rundberg 
V.  Belcher,  118  Cal.  589;  50  Pac.  670);  and 
mandamus  will  lie  to  compel  the  court  to 
make  an  order  substituting  an  attorney  of 
record  for  another,  upon  application  of  the 
client.  People  v.  Norton,  16  Cal.  436; 
Lee  V.  Superior  Court,  112  Cal.  354; 
Rundberg  v.  Belcher  118  Cal.  589;  50  Pac. 
670.  The  interest  or  the  client  is  superior 
to  that  of  the  attorney,  and  he  has  a  right 
to  employ  such  attornev  as  he  will  (Gage 
V.  Atwater,  136  Cal.  170;  68  Pac.  581;  Peo- 
ple V.  Norton,  16  Cal.  436;  Theilman  v. 
Superior  Court,  95  Cal.  224;  30  Pac.  193; 
Faulkner  v.  Hendy,  99  Cal.  172;  33  Pac. 
899;  People's  Home  Sav.  Bank  v.  Superior 
Court,  104  Cal.  649;  43  Am.  St.  Rep.  147; 
29  L.  R.  A.  844;  38  Pac.  452;  Lee  v.  Supe- 
rior Court,  113  Cal.  354;  44  Pac.  666);  and 
the  fact  that  the  client  is  indebted  to  the 
attorney,  who  has  rendered  him  valuable 
services,  does  not  deprive  the  client  of 
this  right.  Gage  v.  Atwater,  136  Cal.  170; 
68  Pac.  581.  A  new  board  of  directors  of 
a  corporation  may  likewise,  on  proper  ap- 
plication, substitute  an  attorney  for  one 
employed  by  the  former  board.  People's 
Home  Sav.  Bank  v.  Superior  Court,  104 
Cal.  649;  43  Am.  St.  Rep.  147;  29  L.  R.  A. 
844;  38  Pac.  452.  It  is  only  necessary  for 
the  party  to  prefer  a  request  therefor,  to 
justify  the  court  in  making  such  change. 
Woodbury  v.  Nevada  Southern  Ry.  Co., 
121  Cal.  165;  53  Pac.  450;  People  v.  Nor- 
ton, 16  Cal.  436;  Board  of  Commissioners 


285 


ATTORNEYS  AND  COUNSELORS  AT  LAW. 


144 


V.  Younger,  29  Cal.  147;  87  Am.  Dec.  164; 
Lee  V.  Superior  Court,  112  Cal.  354;  44 
Pac.  666. 

CODE  COMMISSIONERS'  NOTE.  Authority 
of  attorney  to  act.  Power  of  court  to  pass  upon 
their  authority.  In  the  case  of  Board  of  Com- 
missioners V.  Younger,  29  Cal.  147,  87  Am.  Dec. 
164,  the  commissioners  had  retained  counsel  to 
bring  the  action.  A  trial  had  been  had,  resulting 
in  favor  of  the  commissioners,  and  a  new  trial 
granted.  At  that  stage  of  the  case,  the  commis- 
sioners, without  substituting  another  attorney  of 
record,  and  without  the  knowledge  of  their  at- 
torney of  record,  compromised  the  action,  and  au- 
thorized the  attorney  of  defendant,  in  writing, 
to  appear  for  them  and  dismiss  the  action,  which 
he  did;  but  the  motion  was  resisled  by  the  com- 
missioners' attorney  of  record,  upon  the  ground, 
among  others,  that  he  was  still  the  attorney  of 
record  of  the  commissioners,  and,  as  such,  en- 
titled to  manage  and  control  the  case  until  dis- 
placed and  another  substituted  of  record.  The 
court,  nevertheless,  dismissed  the  action,  and  the 
supreme  court  reversed  the  judgment,  holding,  in 
effect,  that  where  a  party  retains  an  attorney  to 
bring  or  defend  an  action,  the  attorney  has  the 
right  to  control  and  manage  the  case  until  he  has 
been  superseded  by  another  in  the  manner  dic- 
tated by  the  tenth  section  of  the  statute  in  rela- 
tion to  attorneys  and  counselors,  which  provides 
that  an  attorney  in  an  action  or  special  proceed- 
ings may  be  changed  at  any  time  before  final 
judgment:  First,  upon  his  consent,  filed  with  the 
clerk  or  entered  upon  the  minutes;  second,  upon 
the  order  of  the  court,  or  judge  thereof,  on  the 
application  of  the  client.  The  question  there  was, 
whether  the  court  was  bound  to  recognize  the  at- 
torney of  record  as  possessing  the  right  to  manage 
the  case,  or  could,  at  pleasure,  ignore  him  alto- 
gether, and  recognize  another  as  having  that  right. 
But  the  question  here  is,  whether  the  court  has 
the  power  to  inquire  as  to  the  retainer  of  the  at- 
torney, upon  the  suggestion  of  the  client  that  he 
has  abused  the  license  of  the  court,  and  brought 
the  action  without  any  authority.  Upon  such  a 
question  we  have  no  doubt  as  to  the  power.  At- 
torneys are  the  officers  of  the  court,  and  answer- 
able to  it  for  the  proper  performance  of  their 
professional  duties.  They  appear  and  participate 
in  its  proceedings,  only  by  the  license  of  the 
court,  and  if  they  undertake  to  appear  without 
authority  from  the  party  whom  they  profess  to 
represent,   the   act  is   an  abuse  of   the  license   of 


the  court,  which,  upon  the  application  of  the  sup- 
posed client,  the  court  has  the  power  to  inquire 
into  and  correct  summarily.  Otherwise  the  very 
fountain  of  justice  might  become  polluted,  and 
a  license  to  stir  its  v/aters  become  a  license  to 
defile  them.  An  attorney's  license  is  prima  facie 
evidence  of  his  authority  to  appear  for  any  per- 
son whom  he  professes  to  represent,  but  if  the 
supposed  client  denies  his  authority,  the  court 
may  require  him  to  produce  the  evidence  of  his 
retainer  under  the  supervisory  power  v/hich  it 
has  over  its  process  and  the  acts  of  its  oliicers, 
and  that,  too,  in  the  mode  which  was  adopted  in 
this  case,  as  was  suggested  in  Turner  v.  Caruth- 
ers,  17  Cal.  431.  It  has  also  been  held  that  the 
court  may  require  an  attorney  to  show  special  au- 
thority upon  the  application  of  the  opposite  party, 
when  justice  requires  it.  Mclviernan  v.  Patrick, 
was  an  action  by  McKiernan  and  Anderson  as  the 
indorsees  of  two  promissory  notes.  The  defend- 
ants held  a  set-off  against  McKiernan,  and  made 
a  motion  for  an  order  upon  the  plaintiffs'  attor- 
neys to  produce  their  authority  for  using  the 
name  of  Anderson,  which  motion  was  supported 
by  afi  affidavit  to  the  effect  that  the  notes  in  suit 
were  the  exclusive  property  of  McKiernan,  against 
whom  they  held  a  set-off,  that  Anderson  was  a 
myth,  or  if  not,  his  name  had  been  fraudulently 
used,  without  authority,  for  the  purpose  of  avoid- 
ing the  defendants'  set-off  as  a  defense  to  the- 
action.  The  plaintiffs'  attorneys  showed  cause, 
and  informed  the  court  that  they  received  the 
notes  from  McKiernan.  with  instructions  to  sue- 
as  had  been  done;  that  they  had  no  communica- 
tion with  Anderson,  and  had  no  personal  knowl- 
edge of  him.  but  they  understood  that  he  was  a 
friend  and  near  neighbor  of  McKiernan  in  Ala- 
bama; that,  since  the  motion  was  made,  they  had. 
written  to  both  t'ne  plaintiffs  for  information, 
but  had  received  no  answers.  The  court  denied 
the  defendants'  motion.  Subsequently,  judgment, 
passed  for  the  plaintiffs,  and  the  defendants  ap- 
pealed, and  specified  as  error  the  overruling  of 
their  motion  for  a  rule  upon  the  plaintiffs'  attor- 
neys to  show  by  w'nat  authority  they  prosecuted 
the  suit  in  the  name  of  Anderson ;  and  the  ap- 
pellate court'  reversed  the  judgment,  with  in- 
structions to  retry  the  rule,  and  if  the  plaintiffs' 
attorneys  failed  to  produce  satisfactory  authority- 
for  bringing  the  action  in  the  name  of  Anderson, 
to  dismiss  it.  McKiernan  v.  Patrick,  4  How. 
(Miss.)    333:   Clark  v.  Willett,   35  Cal.  538. 

Subd.  2.    See  People  v.  Norton,  16  Cal.  436. 


§285.     Notice  of  change.     When  an  attorney  is  changred,  as  provided  in 

the  last  section,  written  notice  of  the  change  and.  of  the  substitution  of  a 

new  attorney,  or  of  the  appearance  of  the  party  in  person,  must  be  given 

to  the  adverse  party.     Until  then  he  must  recognize  the  former  attorney. 

50  Pac.  1060);  but,  after  a  proper  notice- 
of  substitution  has  been  duly  served,  the 
adverse  party  has  no  right  to  recognize 
any  other  attorney  than  the  substituted 
one.     Preston    v.    Eureka    Artificial    Stone 


Legislation  §  285.    1.  Enacted  March  11,  1872. 

2.  Amended  by  Code  Amdts.  1880,  p.  57, 
(1)  changing  the  period  after  "adverse  party" 
from    a    semicolon,    and     (2)     omitting    a    comma 

after   "Until   then." 

Construction  of  section.  This  section 
does  not  apply  to  criminal  cases;  no  for- 
mal substitution  of  attorneys  is  required 
therein.  People  v.  Garnett,  9  Cal.  App. 
194;  98  Pac.  247. 

Notice  of  change.  Where  attorneys  are 
changed,  written  notice  must  be  served  on 
the  adverse  partv  (Withers  v.  Little,  56 
Cal.  370;  Grant  v.  White,  6  Cal.  55;  Pres- 
cott  V.  Salthouse,  53  Cal.  221);  and  until 
such  written  notice  is  served,  the  original 
attorney  must  be  recognized,  and  all 
papers  served  upon  him  (Grant  v.  White, 
6  Cal.  55;  Abrahms  v.  Stokes,  39  Cal.  150; 
Prescott  V.  Salthouse,  53  Cal.  221;  Withers 
V.  Little,  56  Cal.  370;  Livermore  v.  Webb, 
56  Cal.  489;  Young  v.  Fink,  119  Cal.  107; 


Co.,  54  Cal.  198.  The  requirement  of  writ 
ten  notice  is  for  the  protection  of  the  ad- 
verse party.  Livermore  v.  Webb,  56  Cal. 
489. 

Construction  of  section.  See  note  ante.. 
§  284. 

CODE  COMMISSIONERS'  NOTE.  1.  Attor- 
neys of  record.  If  attorneys  are  changed  in  ac- 
tion, and  there  is  no  regular  substitution  of 
attorneys,  according  to  the  provisions  of  the  stat- 
ute, notices  may  be  served  on  the  attorney  of 
record.    Grant  v.  White,  6  Cal.  55. 

2.  Notice  of  substitution  of  attorneys.  Where, 
at  different  stages  of  the  suit,  different  attorneys- 
have  acted  for  one  of  the  parties,  and  no  notice 
of  substitution  appears,  service  of  notice  upon, 
the  attorney  lasi  acting  and  recognized  by  the 
court,  is  sufficient  to  bind  client.  Roussin  v^ 
Stewart,  33  Cal.  208. 


145  DEATH    OR   REMOVAL    OF    ATTORNEY — CAUSES    FOR    REMOVAL.       §§286,287 

§  286.  Death  or  removal  of  attorney.  When  an  attorney  dies,  or  is  re- 
moved or  suspended,  or  ceases  to  act  as  such,  a  party  to  an  action,  for  whom 
he  was  acting  as  attorne}^,  must,  before  any  further  proceedings  are  had 
against  him,  be  required  by  the  adverse  party,  by  written  notice,  to  appoint 
another  attorney,  or  to  appear  in  person. 

Legislation  §  286.    1.  Enacted  March  11,  1S73.  Cal.  288:   62  Pac.  513;   Troy  Laundry  etc. 

3.   Amended    by    Code    Aradts.     1880,    p.    57,  p„     „     -nr-iia,-^'    Tr,  i      T  „„^   it,,    f         ^■J    n    i 

(1)     adding    a    comma    after    "action,"    after    "as  V  --.Tr^nn    i '^^      nl      "^H    ^"•'    l^.*-^^* 

attorney,"    and    after    "another    attorney."  App.     115;     109    Fac.     36.      All    procecilings 

Notice  to  appoint  another  attorney.    The  are  suspended  from  the  date  of  the  <leath 

...            ^-       J.              •   i.         J.1          t.-       ^„  or    the    attorney    until    the    appearance    or 

written  notice  to  appoint  another  attorney  „.^„„;„j.™„  i.      i    „      t.\,          rr          t         i 

If            ]              1   •         i.              „_„  appointment    of    another.     Troy    Laundry 

in  place  or  one  deceased  is  not  necessary,  in            T^  •         >  t    j     t          i        r,       ■,-, 

,  ^                  ,,               .               ■   J.    1       -ii,      l  etc.   Lo.   V.   Drivers    Ind.   Laundry   Co.,   13- 

where    an    attorney   is    appointed    without  p  ,    .         iirr.Toqpn^   ^k                 "^         ' 

such  notice.    Nicol  v.  San  Francisco,   130  ^-ai.  App.  no,  luy  rac.  db. 

§287.  Causes  for  which  court  may  remove  attorney.  An  attorney  and 
counselor  may  be  removed  or  suspended  by  the  supreme  court,  or  any 
department  thereof,  or  by  any  district  court  of  appeal,  or  by  any  superior 
court  of  the  state,  for  either  of  the  following  causes,  arising  after  his  admis- 
sion to  practice : 

1.  His  conviction  of  a  felony  or  misdemeanor  involving  moral  turpitude^ 
in  which  case  the  record  of  conviction  shall  be  conclusive  evidence ; 

2.  Willful  disobedience  or  violation  of  an  order  of  the  court  requiring  him 
to  do  or  forbear  an  act  connected  with,  or  in  the  course  of  his  profession, 
which  he  ought  in  good  faith  to  do  or  forbear,  and  any  violation  of  the  oath 
taken  by  him,  or  of  his  duties  as  such  attorney  and  counselor ; 

3.  Corruptly  or  willfully  and  without  authority  appearing  as  attorney  for 
a  party  to  an  action  or  proceeding ; 

4.  Lending  his  name  to  be  used  as  attorney  and  counselor  by  another 
person  who  is  not  an  attorney  and  counselor ; 

5.  For  the  commission  of  any  act  involving  moral  turpitude,  dishonesty 
or  corruption,  whether  the  same  be  committed  in  the  course  of  his  relations 
as  an  attorney  or  counselor  at  law,  or  otherwise,  and  whether  the  same  shall 
constitute  a  felony  or  misdemeanor  or  not;  and  in  the  event  that  such  act 
shall  constitute  a  felony  or  misdemeanor,  conviction  thereof  in  a  criminal 
proceeding  shall  not  be  a  condition  precedent  to  disbarment  or  suspension 
from  practice  therefor. 

In  all  cases  where  an  attorney  is  removed  or  suspended  by  a  superior 
court,  the  judgment  or  order  of  removal  or  suspension  may  be  reviewed  on 
appeal  by  the  supreme  court. 

Attorney    has    right    to    make    a    defense.     See  forbear";    (4)   in  subd.  3,  adding  "or  willfully," 
post,  §§292  et  spq.  after    "corruptly";    (5)    in    last    paragraph,    sub- 
Attorney    defending    prosecution   instituted    by  stituting  "superior"  for   "district." 
himself    or    partner    forfeits    license.      See    Pen.  *•   Amendment   by    Stats.    1901,   p.    124;    un- 
Code    §  162  constitutional.     See   note  ante,  §  5. 

5.   Amended   by    Stats.    1911,   p.    848,    (1)    in 

Legislation  §  287.    1.  Enacted  March  11,  1873.  introductory   paragraph,    adding    "or   by    any   dis- 

2.  Amended  by  Code  Amdts.  1873-74,  p.  trict  court  of  appeal";  (2)  in  subdivision  4.  sub- 
289,  (1)  adding  subd.  4;  (2)  changing  the  last  stituting  a  semicolon  for  a  period;  (3)  adding 
paragraph,    after    "suspended    by    a,"    from    "dis-  subdivision   5. 

trict   court   he   may   appeal   to   the   supreme  court,  T>^.rr,««     4..^     ^^-^^-^^     „~     . „j        tt^ 

and  the  judgment  or  order  of  the  district  court  is  Power    to    remove    or    suspend.     Every 

subject,   on   such   appeal,   to   review,   as   in   civil         court  having  power  to  admit  attorneys  to 
actions,"  to  read  as  at  present,  except  the  word        practice   has    inherent   power .  to    disbar    or 

district."                                            ^oo«           r-r  suspond     them,     whenever     tlieir     conduct 

3.  Amended  by  Code  Amdts.  1880,  p.  57,  ,  ^  ,,  j.  V  ->..  i  -•  ,,  .• 
(1)  changing  the  words  in  the  introductory  para-  shows  them  to  be  unfitted  for  the  practice 
graph,  after  "supreme  court,"  from  "and  by  the  of  their  profession  (People  V.  Turner,  1 
district  courts  of  the  state,"  io  read  as  at  Cal.  143 ;  52  Am.  Dec.  295) ;  but  a  lustice's 
present;  (2)  in  subd.  1,  substituting  shall  be"  i  u  u  t,  •  t  t 
for  "is";  (3)  in  subd.  2,  after  "profession,"  <^ourt  has  no  such  power.  Baird  v.  .Tus- 
adding   "which  he   ought  in  good   faith  to  do  or  tice's    Court,    11    Cal.    App.    439;    105    Pae. 

1  Fair. — 10 


§287 


ATTORNEYS  AND  COUNSELORS  AT  LAW. 


146 


259.  Attorneys  are  subject  to  the  author- 
ity of  courts,  and  may,  for  causes  shown, 
be  suspended  or  removed,  and  deprived  of 
the  right  to  pursue  their  profession,  by  the 
supreme  court  (Alpers  v.  Hunt,  86  Cal.  78; 
21  Am.  St.  Rep.  17;  9  L.  R.  A.  483;  24  Pac. 
846);  and  the  supreme  court  may,  of  its 
own  motion,  set  aside,  for  fraud  or  con- 
cealment, an  order  admitting  an  attorney 
to  practice.  Case  of  Lowenthal,  61  Cal. 
122.  While  the  supreme  court  has  both 
original  and  appellate  jurisdiction  in  pro- 
ceedings to  disbar  attorneys,  it  will  not 
exercise  original  jurisdiction,  except  where 
the  prosecution  has  been  instituted  by  a 
bar  association,  or  other  public  body,  in 
the  public  interest.  Disbarment  of  Ashley, 
146  Cal  600;  80  Pac.  1030. 

Causes   of   disbarment.     The   causes   are 
enumerated  in  this  section,  and  an  attor- 
ney  cannot   be   disbarred   for   others   than 
those  enumerated.    In  re  Collins,   147   Cal. 
8;  81  Pac.  220.     Before  the  adoption  of  the 
codes,  however,  it  was  held  that  attorneys 
might   be   disbarred   for   disloyalty   to   the 
national    government,    and    for   refusal    to 
take  the  oath  of  loyaltv  prescribed  by  the 
legislature.    Cohen  v.  Wright,  22  Cal.  293; 
Ex  parte  Yale,  24  Cal.  241;  85  Am.  Dec.  62. 
A  court  has  no  power  to  adjudge  any  man, 
whether    lawyer    or    layman,    "infamous"; 
and  to  incorporate  into  an  order  pronoun- 
cing   an    attorney    guilty    of    contempt    an 
adjudication  that  he  is  infamous,  is  with- 
out precedent,  and  wholly  illegal.    Fletcher 
V.  Daingerfield,  20  Cal.  427.     Where  an  at- 
torney is  charged,  in   disbarment  proceed- 
ings, with  a  crime,  which  charge  is  denied, 
the  court  has  no  jurisdiction  to  prosecute, 
until  he  has  been  convicted  of  such  crime 
(In  re  Tilden,  3  Cal.  Unrep.  383;   25  Pac. 
687);   but   an   attorney   may   be   disbarred 
for  a  violation   of  his  professional   duties, 
although  the  charge  against  him  might  be 
made  ithe  basis  of  an  indictment  or  infor- 
mation.   Disbarment   of   Danford,   157   Cal. 
425;  108  Pac.  322.     If  an  attorney  is  found 
guilty  of  acts  indicating  professional  moral 
depravity,    the    court    cannot,    without    a 
previous  conviction   of   a  criminal   offense, 
take  awav  his  license  as  such  attornev.    In 
re  Treadwell,  67  Cal.  353;   7  Pac.  724.     It 
is    only    when    disbarment    is    sought    upon 
the  mere  ground  that  the  accused  has  been 
guilty  of  a  public  offense  involving  moral 
turpitude,  that  a  case  for  disbarment  can- 
not be   made  until   there  has   been   a   con- 
viction   for    the    offense.     Disbarment    of 
Danford,  157  Cal.  425;  108  Pac.  322.     Con- 
viction of  an  attempt  to  commit  the  crime 
of  extortion  is  a  conviction  of  a  crime  in 
volving  moral  turpitude,  within  the  mean- 
ing of  the  first  subdivision  of  this  section. 
Disbarment  of  Coffey,  123  Cal.  522;  56  Pac. 
448.     A    conviction    for    felony    or    misde- 
meanor   involving    moral    turpitude,    is    a 
ground   for  disbarment,  whether  the  offense 
was  committed  in  a  private  or  professional 
relation.    Ex  parte  Tyler,    107   Cal.    7S;    40 
Pac.  33.     The  proceedings  of  the  court  are 


to  determine  whether  the  attorney  is  enti- 
tled to  continue  to  practice  as  such,  and 
not  whether  he  is  guilty  of  the  commission 
of  a  crime.  In  re  Treadwell,  67  Cal.  353; 
7  Pac.  724;  Ex  parte  Tyler,  107  Cal.  78;  40 
Pac.  33;  Disbarment  of  Wharton,  114  Cal. 
367;  55  Am.  St.  Rep.  72;  46  Pac.  172.  But 
in  those  cases  where  it  is  charged  in  the 
accusation  that  the  attorney  has  violated 
a  law  of  the  state  in  a  matter  distinct 
from  his  professional  conduct  and  obliga- 
tions, and  not  by  virtue  of  his  office  as  an 
attorney,  proceedings  for  his  suspension  or 
disbarment  will  not  be  entertained  by  the 
court  until  after  he  has  been  tried  and 
convicted  of  the  offense  charged.  Ex  parte 
Tvler,  107  Cal.  78;  40  Pac.  33;  Disbarment 
of  Danford,  157  Cal.  425,  428;  108  Pac.  322. 
Disobedience  of  order  of  court.  There 
is  no  limit  to  the  power  of  the  court  to 
suspend  or  disbar  an  attorney,  under  the 
second  subdivision,  and  it  is  not  required 
to  defer  its  action  until  after  the  convic- 
tion of  the  attorney  on  a  criminal  charge. 
Ex  parte  Tyler,  107  Cal.  78;  40  Pac.  33. 

Violation  of  oath.     There   is  no   ground 
for  disbarment,  where  an  attorney  accepts 
payment   for   a  just  claim,  in   good  faith, 
from  an  insolvent  client,  in  goods  at  their 
fair    valuation;    and    he   is   not    acting    in 
fraud  of  his  client,   a   creditor  of  the   in- 
solvent, where  he,  having  a  claim  against 
the    insolvent,    who    has    paid    him    no    re 
tainer,    inadvertently    as    to    such    client, 
accepts  a  retainer  from  tne  insolvent,  and 
becomes  his  attorney.   Disbarment  of  Luce, 
83  Cal.  303;  23  Pac.  350.     It  is  ground  for 
disbarment,  where  he  fraudulently  induces 
his  client  to  verify  a  false  complaint  (Peo- 
ple   v.    Pearson,    55    Cal.    472);    and    also 
where   he   betrays   the   confidences    of    his 
client,   by  the   conversion   of   her  property 
(Disbarment    of    Burris,    101    Cal.    624;    36 
Pac.  101);  and  also  where  he  falsely  repre- 
sents himself  as  admitted  to  practice  in  a 
certain  court,  and  accepts  money  to  appear 
and  contest  an  action  therein   ("Disbarment 
of    Danford,    157    Cal.    425,   429;    108    Pac. 
322);   and  also  where   he  appears  for  the 
prosecution  in  a  criminal  action,  and  after- 
wards   appears    for    the    defense    in     the 
same  action    (Disbarment  of   Stephens,   77 
Cal.    357;    19   Pac.    646);    and   also   where, 
after  having  acted  on  one  side  of  a  cause, 
he    takes   the    other    side.     Disbarment    of 
Cowdery,    69    Cal.    32;    58    Am.    Rep.    545; 
10    Pac.    47.     The    encouragement    of    un 
just    litigation,    from    motives    of    passion 
or    interest,    and    for    the    mere    purpose 
of  gain,  is  also  cause  for  disbarment  (Dis- 
barment of  Stephens,  77  Cal.  357;   19  Pac. 
646) ;  as  is  also  the  failure  and  refusal  to 
pay   monevs    collected   for   his   client    (Ex 
parte  Tyler,  107  Cal.  78;  40  Pac.  33;   Dis- 
barment of   Burris,   101   Cal.    624;    36   Pac. 
101);   and  the  procurement  of  a  false  and 
fraudulent    affidavit    of    service    of    sum- 
mons,   and    inducing    the    court    to    accept 
such  as  genuine   (Disbarment  of  Wharton, 
114  Cal.  367;  55  Am.  St.  Rep.  72;  46  Pac. 


147 


CONVICTION   OF   FELONY. 


§288 


172);  and  the  procurement  and  presenta- 
tion to  the  court  of  a  straw  bond.  Dis- 
barment of  Tyler,  71  Cal.  353;  12  Pac.  289; 
13  Pac.  169. 

Appearing  without  authority.  Where  an 
attorney  appears  as  guardian  ad  litem 
and  answers  without  an  order  of  appoint- 
ment, he  is  guilty  of  contempt  for  misbe- 
havior, and  subject  to  a  proceeding  for 
Temoval  or  suspension.  Emeric  v.  Alva- 
jado,  64  Cal.  529;  2  Pac.  418. 

Lending  name  as  attorney.  The  lending 
of  his  name,  to  be  used  as  attorney  or 
counselor,  to  another  person,  who  is  not  an 
attorney  and  counselor,  is  cause  for  dis- 
barment. Alpers  V.  Hunt,  86  Cal.  78;  21 
Am.  St.  Rep.  17;  9  L.  R.  A.  483;  24  Pac. 
■846. 

Judicial  officer  practicing  law.  The  prac- 
ticing of  law  by  an  attorney  holding  a 
judicial  position  is  not  ground  for  disbar- 
ment. Baird  v.  Justice's  Court,  11  Cal. 
App.  439;  105  Pac.  259. 

Fraud  upon  court.  An  attorney  commits 
a  fraud  upon  the  court,  and  will  be  dis- 
barred, where  he  applies  to  the  court  for 
■admission  in  this  state,  when  his  applica- 
tion is  based  upon  a  certificate  from  a  sis- 
ter state,  which  had  been  canceled  and  set 
aside  before  the  application  was  made  in 
this  state.  In  re  Maxey  (unreported  case 
No.  1252  Civ.,  decided  by  District  Court  of 
Appeals,  First  District,  December  3,  1912). 

Notice  of  hearing.  The  attorney  pro- 
ceeded against  must  be  given  notice  of  the 
charges  against  him,  and  an  opportunity 
to  be  heard  (People  v.  Turner,  1  Cal.  143; 
52  Am.  Dec.  295);  and  the  court  has  no 
power  to  strike  an  attorney's  name  from 
the  rolls  without  affording  him  an  oppor- 
tunity to  be  heard.  Fletcher  v.  Dainger- 
field,  20  Cal.  427. 

Summary  jurisdiction  over  attorneys.  See  note 
2  Am.  St.  Kep.  847. 

General  powers  of  court  to  disbar.  See  note 
114  Am.   St.  Rep.   839. 

Power  of  courts  to  disbar  attorneys.  See  notes 
5  Ann.  Cas.  990;   15  Ann.  Cas.  419. 


Causes  and  proceedings  for  disbarment.  See 
note   il.)   .\m.   Der.   33:{. 

Grounds  for  disbarment.  See  note  45  Am.  St. 
Rep.  71. 

Rigiit  of  attorney  to  review  of  disbarment  pro- 
ceedings.    See   note    10   Ann.   Cas.   •'>  14. 

Conviction  of  attorney  for  crime  as  condition 
precedent  to  disbarment  therefor.  See  note  3 
Ann.  Cas.  847. 

Acquittal  of  criminal  charge  against  attorney 
as  defense  to  disbarment  proceedings  for  same 
offense.     See   note    10  Ann.   (jas.   887. 

Effect  of  pardon  on  right  to  disbar  attorney 
convicted  of  felony.  See  nolo  16  L.  R.  A.  (N.  S.) 
272. 

Acts  not  done  in  practice  of  profession  when 
cause  for  disbarment.    See  note  42  .Am.  T{ep.  557. 

Disbarment  of  attorney  for  act  committed  iu 
another  jurisdiction.    See  note   17  Ann.   Cas.  599. 

Wrongful  retention  of  money  by  attorney  as 
ground  for  disbarment.  See  notes  17  Ann.  C'a.s. 
692;    19   L.    K.   A.    (N.    S.)    414. 

Disbarment  of  attorney  for  fraud  in  procuring 
license  to  practice.    See  note  20  Ann.  Cas.  212. 

■Want  of  due  respect  toward  court  iu  legal 
papers  as  ground  for  disbarment.  See  note  15 
L.  R.   A.    (N.  S.)    525. 

Disbarment  in  one  state  or  concealment  of  that 
fact  as  ground  for  disbarment  in  another  state. 
See  notes  19  L.  R.  A.  (N.  S.)  892;  24  L.  R.  A. 
(N.  S.)    531. 

Criticism  of  decision  of  court  as  ground  for  dis- 
barment. See  notes  15  Ann.  Cas.  205;  17  L.  R.  -V. 
(N.  S.)    572. 

Necessity  for  bad  faith  or  fraudulent  motive 
to  justify  disbarment.    See  note  18  L.  R.  A.  401. 

CODE  COMMISSIONERS'  NOTE.  1.  Attor- 
ney entitled  to  trial  before  his  name  is  stricken 
from  the  roll.  The  name  of  an  attorney  may  be 
stricken  from  the  roll  of  attorneys,  but  such  act 
is  not  to  be  regarded  in  the  light  of  a  punish- 
ment for  contempt,  and  the  attorney  is  entitled 
to  notice  of  the  charges  preferred  against  him, 
and  have  an  opportunity  afforded  him  for  a  de- 
fense. An  appeal  lies  to  the  supreme  court  from 
the  judgment  of  the  district  court  in  such  mat- 
ters. People  V.  Turner,  1  Cal.  143;  52  Am.  Dec. 
295;  and  see  also,  where  it  was  held  that  an  at- 
torney could  not  be  suspended  by  the  district 
court  if  such  attorney  had  been  admitted  and 
licensed  by  the  supreme  court,  People  v.  Turner, 
1  Cal.  190.  An  attorney  is  entitled  to  a  trial 
before  he  can  be  stricken  from  the  rolls.  See 
Fletcher  v.  Daingerfield,  20  Cal.  427. 

2.  Exclusion  of  disloyal  persons  from  practice, 
etc.  Power  of  legislature.  See  also  the  cases 
of  Cohen  v.  Wright,  22  Cal.  322,  and  Ex  parte 
Yale,  24  Cal.  241.  85  Am.  Dec.  62,  wherein  are 
discussed  the  rights  of  the  legislature  to  exclude 
disloyal  persons  from  the  bar,  and  also  to  require 
from"  all  attorneys,  after  their  admission,  certain 
test  oaths  of  loyalty  to  the  government,  etc. 


§  288.  Conviction  of  felony.  In  case  of  the  conviotion  of  an  attorney  or 
-counselor  of  a  felony  or  misdemeanor,  involvino-  moral  turpitude,  the  clerk 
of  the  court  in  which  such  conviction  is  had  shall,  within  thirty  days  there- 
after, transmit  to  the  supreme  court  a  certified  copy  of  the  record  of  convic- 
tion. 

661;   91  Pac.  598;  People  v.  Treadwell,  6G 
Cal.  400;  5  Pac.  686. 

Appeal  from  judgment.  An  appeal  from 
a  judgment  of  conviction  of  a  criminal  of- 
fense suspends  the  judgment  of  the  lower 
court  for  all  jmrposes.  Knowles  v.  Inches, 
12  Cal.  212;  Woodbury  v.  Bowman,  13  Cal. 
634;  People  v.  Frisbie,  26  Cal.  135;  People 
V.  Treadwell,  66  Cal.  400;  5  Pac.  686.  It  is 
not  necessary  that  a  certification  of  the 
transcript  of  conviction  should  be  filed 
within  thirtv  days.  Disbarment  of  Coffey, 
123  Cal.  522;  56  Pac.  448. 


Legislation  8  288.     1.  Enacted  March  11,  1873. 

2.  Amended  by  Code  Amdts.  1880,  p.  57, 
(1)  omitting  a  comma  after  "felony,"  and  add- 
ing one  after  "misdemeanor,"  (2)  changing  the 
word  "such"  from  "a,"  and  (3)  changing  the 
word   "shall"   from  "must." 

Conviction  of  felony.  A  proceeding 
•under  this  section,  to  revoke  a  license  to 
practice  law,  because  of  the  attorney's 
conviction  of  crime,  cannot  be  instituted 
until  the  judgment  of  conviction  becomes 
final.  McKannay  v.  Horton,  151  Cal.  711; 
121  Am.  St.  Eep.  146;  13   L.  R.  A.  (N.  S.) 


§§289-292  ATTORNEYS  AND  COUNSELORS  AT  LAW.  148 

§289.  Proceedings  for  removal  or  suspension.  The  proceedings  to  re- 
move or  suspend  an  attorney  and  counselor,  under  the  first  subdivision  of 
section  two  hundred  and  eighty-seven,  must  be  taken  by  the  court  on  the 
receipt  of  a  certified  copy  of  the  record  of  conviction.  The  proceedings 
under  the  second,  third,  or  fourth  subdivision  of  section  two  hundred  and 
eight3^-seven  may  be  taken  by  the  court  for  the  matters  within  its  knowledge, 
or  may  be  taken  upon  the  information  of  another. 

Legislation  §  289.     1.  Enacted  March  11,  1873.        visions"     from     "second    subdivisions,"     and     (2) 
3.  Amended    by    Code    Amdts.    18SO,    p.    58,        adding   the  word   "the"   before   "matters." 
(1)    changing    "second,    third,    or    fourth    subdi- 

§290.  Accusation.  If  the  proceedings  are  upon  the  information  of  an- 
other, the  accusation  must  be  in  Avriting. 

Legislation  §  290.    1.  Enacted  March  11,  18T3.  812.      It   must   be   made  by   some   one   who 

3.   Re-enacted   by    Code    Amdts.    1880,    p.    58,  jjgg    ^^   least   some    knowledge    on   which    tO 

in  amending  Part  I.  hase  his   charges;   an  accusation   upon   in- 

Accusation.      An   accusation  by   another  formation    is    clearly    insufficient.     In    re 

must    be    on    knowledge,    in    writing,    and  Hotchkiss,  58  Cal.  39.     The  one  who  veri- 

must   state   the   matters   charged;    it   must  fies   an   accusation   for   the   disbarment   of 

also  be  verified  by  some  person,  to  the  ef-  an   attorney   is   deemed   the   accuser,   who- 

fect  that  the  charges  stated  are  true.    Dis-  ever   presents   the   charges.    In   re   Collins, 

barment  of  Hudson,  102  Cal.  467;  36  Pac.  147  Cal.  8;  81  Pac.  220. 

§291.  Verification.  The  accusation  must  state  the  matters  charged,  and 
be  verified  by  the  oath  of  some  person  to  the  effect  that  the  charges  therein 
contained  are  true. 

Legislation  §  291.    1.  Enacted  March  11,  1873.  son,  102  Cal.  467;   36  Pac.  812.     It  is  suffi- 

3.  Re-enacted  by  Code  Amdts.   1880,   p.  58,  dent,  however,  if  the  accusation  is  verified 

in  amending  Part  I.  ^^  ^^^^  person  who  swears  to  the  truth  of 

Verification.     The  verification  cannot  be  the   charge   set   forth.     In   re    Collins,    14T 

made  upon  information  and  belief.    In  re  c^l.  8;  81  Pac.  220. 

Hotchkiss,  58  Cal.  39;  Disbarment  of  Hud- 

§  292.  Citation  of  accused  by  publication.  Upon  receiving  the  accusa- 
tion, the  court  shall  make  an  order  requiring  the  accused  to  appear  and  an- 
swer it  at  a  specified  time,  and  shall  cause  a  copy  of  the  order  and  of  the 
accusation  to  be  served  upon  the  accused  at  least  five  days  before  the  day 
appointed  in  the  order.  If  it  shall  appear  by  affidavit  to  the  satisfaction  of 
the  court  or  judge  that  the  accused  resides  out  of  the  state ;  or  has  departed 
from  the  state;  or  cannot,  after  due  diligence,  be  found  within  the  state;  or 
conceals  himself  to  avoid  the  service  of  the  order  to  show  cause,  the  court  or 
judge  may  direct  the  service  of  a  citation  to  the  accused,  requiring  him  ta 
appear  and  answer  the  accusation,  to  be  made  by  publication  in  a  newspaper 
of  general  circulation  published  in  the  county  in  which  the  proceeding  is 
pending  for  thirty  days.  Such  citation  must  be  directed  to  the  accused, 
recite  the  date  of  the  filing  of  the  accusation,  the  name  of  the  accuser,  and 
the  general  nature  of  the  charges  against  him,  and  require  him  to  appear  and 
answer  the  accusation  at  a  specified  time.  On  proof  of  the  publication  of 
the  citation  as  herein  required  the  court  shall  have  jurisdiction  to  proceed 
to  hear  the  accusation  and  render  judgment  with  like  efiect  as  if  an  order 
to  show  cause  and  a  copy  of  the  accusation  had  been  personally  served  on. 
the  accused. 

Legislation  §  292.    1.  Enacted  March  11,  1873,  to    be    served    upon    the    accused    within    a    pre- 

and    then    read;    "After   receiving    the    accusation  scribed    time    before    the    day    appointed    in    the 

the  court  must,  if  in  its  opinion  the  case  require  order." 

it,    make    an    order   requiring   the    accused    to    ap-  3.   Amended    by    Code    Amdts.     1880,    p.    58, 

pear    and    answer    the    accusation    at    a    specified  the  first  sentence  of  the  present  amendment  then, 

time   in   the   same   or   suljsequent   term,    and    must  constituting  the  entire   section, 

cause  a  copy  of  the  order  and  of  the  accusation  3.  Amended  by  Stats.  1911,  p.  979. 


149  APPEARANCE — PLEADING TRIAL — JUDGMENT.  §§  293-299 

§  293.  Appearance.  The  accused  must  appear  at  the  time  appointed  in 
the  order,  and  answer  the  accusation,  unless,  for  sufficient  cause,  the  court 
-assign  another  day  for  that  purpose.  If  he  do  not  appear,  the  court  may 
proceed  and  determine  the  accusation  in  his  al)sence. 

Legislation  g  293.     1.  Enactod  March  11,  1S73.         clianging     the     period     after     "purpose"     from     a 

2.  Aimndi'd    by    Code    Amdts.    18SO,    p.    58,         semicolon. 

§  294.  Objections  to  accusation.  The  accused  may  answer  to  the  accusa- 
tion either  by  objecting  to  its  sufficiency  or  denying  it. 

Legislations  294.     1.  Enacted  March  11,  1873.         in  amending  Part  I. 

3.  Re-enacted    by    Code    Amdts.    1880,    p.    58, 

§  295.  Demurrer.  If  he  object  to  the  sufficiency  of  the  accusation,  the 
►objection  must  be  in  writing,  but  need  not  be  in  any  specific  form,  it  being 
sufficient  if  it  presents  intelligibly  the  grounds  of  the  objection.  If  he  deny 
the  accusation,  the  denial  may  be  oral  and  without  oath,  and  must  be  entered 
mpon  the  minutes. 

LegLslation  8  295.    1.  Enacted  March  11,  1873.         in  amending  Part  I. 

2.  Ke-enacted    by    Code    Amdts.    1880,    p.    58, 

§  296.  Answer.  If  an  objection  to  the  sufficiency  of  the  accusation  be 
not  sustained,  the  accused  must  answer  within  such  time  as  may  be  desig- 
nated by  the  court. 

Legislation  §  296.     1.  Enacted  March  11,  1873,  3.   Amended    by    Code    Amdts.     1873-74,    p. 

and    then    read:     "If    an    objection    to    the    suffi-  290,   to  read   as  at  present. 

ciency    of    the    accusation    is    not    sustained,    the  3.   Re-enacted    by    Code   Amdts.    1880,    p.    58, 

accused  must   answer  forthwith."  in  amending  Part  I. 

§  297.  Trial.  If  the  accused  plead  guilty,  or  refuse  to  answer  the  accusa- 
tion, the  court  shall  proceed  to  judgment  of  removal  or  suspension.  If  he 
deny  the  matters  charged,  the  court  shall,  at  such  time  as  it  may  appoint, 
proceed  to  try  the  accusation. 

Legislation  §  297.    1.  Enacted  March  11,  1873.  ^0   right   tO   jury   trial.      This   section    is 

3.  Amended    by    Code    Amdts.     18SO,    p.    oo,  ,.,     ,.         i  j    ,,_  -i      ,  , 

•  changing  "shall"  from  "must"  in  both  instances.       Constitutional,  and  the  accused  attorney  is 

Proceedings  on  disbarment.    Proceedings       ^^^    entitled   to   a   trial   by   jury.     Disbar- 

•  on  disbarment  are  peculiar  to  themselves,       "i^nt  of  Wharton,  114  Cal.  367;  55  Am.  St. 
;and  are  governed  by  specific  code  sections;       Kep.  72;  46  Pac.  172, 

hence,  findings  are  not  required,  the  right  ^^^^^  ^j  attorney  to  be  confronted  with  wit- 
to   trial  by   jury   is   denied,   the   statute   or  nesses    against    him    in    disbarment    proceedings. 

"limitations  has  no  application,  and  the  ac-  See  note  6  Ann.  Cas.  582. 

cuser   has  no   right   to   an   appeal.    Disbar-  „  Eight  to  jury  trial  in  disbarment  proceedings. 

:ment   of   Danford,   157   Cal.   425,   430;    108  ^^^  """'^  ^'^°-  ^^'-  l^^^^'  ^^^"■ 
Pac,  322, 

§  298,  Reference  to  take  depositions.  The  court  may,  in  its  discretion, 
•order  a  reference  to  a  committee  to  take  depositions  in  the  matter. 

Legislation  §  298.     1.  Enacted  March  11,  1873.         in  amending  Part  I, 
2.   Re-enacted    by    Code    Amdts.    1880,    p.    58, 

§  299.  Judgment.  Upon  conviction,  in  cases  arising  under  the  first  sub- 
division of  section  two  hundred  and  eighty-seven,  the  judgment  of  the  court 
must  be  that  the  name  of  the  party  shall  be  stricken  from  the  roll  of  attor- 
neys and  counselors  of  the  court,  and  that  he  be  precluded  from  practicing 
as  such  attornej^  or  counselor  in  all  the  courts  of  this  state;  and  upon  con- 
viction in  cases  under  the  other  subdivisions  of  that  section  the  judgment 
•of  the  court  may  be  according  to  the  gravity  of  the  offense  charged ;  depriva- 
tion of  the  right  to  practice  as  attornej^  or  counselor  in  the  courts  of  this 
.state  permanently,  or  for  a  limited  period. 


§304 


OTHER  PERSONS  INVESTED  WITH  MINISTERIAL  POWERS. 


150^ 


Legislation  §  299.    1.  Enacted  March  11,  1872. 

2,  Amended  by  Code  Amdts.  1873-74,  p. 
290  (1)  adding  the  word  "that"  belore  he  be 
precluded,"  and  (2)  changing  from  "second  sub- 
division of  section  two  hundred  and  eighty- 
seven"     the    words     "other    subdivisions    of    that 

*3.  Amended  by  Code  Amdts.  1880,  p.  58,  (1)^ 
adding  the  word  "shall"  before  "be  stricken,' 
and  (2)  substituting  a  semicolon  for  a  dash  after 
"charged." 

Judgment.  Unless  the  court  is  clearly 
satisfied  of  the  guilt  of  the  attorney,  no 
judgment  should  be  entered  in  the  proceed- 
ing to  disbar  him,  except  a  judgment  of 
dismissal.  Disbarment  of  Houghton,  67 
Cal.  511;  8  Pac.  52.     The  court  has  power 


to  render  a  judgment  suspending  an  attor- 
ney from  practice  for  a  definite  period  and 
until  the  performance  by  him  of  a  p»articu- 
lar    condition.      Disbarment    of    Tyler,    78- 
Cal.  307;  12  Am.  St.  Rep.  55;  20  Pac.  674. 

Statute  of  limitations.  The  bar  of  the- 
statute  of  limitations  against  a  civil  or 
criminal  proceeding  will  not  be  considered, 
bv  the  court  in  disbarment  proceedings. 
Ex  parte  Tyler,  107  Cal.  78;  40  Pac.  33. 

Appeal.  An  appeal  may  be  taken  from 
a  judgment  of  disbarment  in  the  superior- 
court.  Disbarment  of  Wharton,  114  Cal.. 
367;  55  Am.  St.  Eep.  72;  46  Pac.  172. 


CHAPTER  II. 

OTHER  PERSONS  INVESTED  WITH  SUCH  POWERS. 
§  304.    Receivers,  executors,  administrators,  and  guardians. 

§  304.  Receivers,  executors,  administrators,  and  guardians.  The  appoint- 
ment, powers,  and  duties  of  receivers,  executors,  administrators,  and  guar- 
dians are  provided  for  and  prescribed  in  parts  two  and  three  of  this  code. 

Receivers.   See  post,  §§  564-569.  Limitation   on   power   to    appoint.     The 

Executors   and  administrators.    See  post,  Part        effect    of    this    section    is    to    confine    the 

"'Guardi^nL'.^PoI't!VM747-i809.  Po^er  to  appoint  a  receiver  to  the  court, 

^    „  ,,,      ^,,   ^0^.0        or  the  judge  thereof:    an   appointment  by 

Legislation  8  304.    1.  Enacted  March  11,  1872.  .•'      ^      .     .  .  -i      rk    -v^r,!^    ^ 

2.  Amended  by  Code  Amdts.  1880.  p.  59,  add-         a    court    commissioner    IS    VOld.     Quibble    V.. 
ing  the  words   "executors,  administrators."  Trumbo,  56  Cal.  626. 

3.  Repeal   by   Stats.    1901,   p.    124;    unconsti- 
tutional.   See  note  ante,  $  5. 


PART  11. 

CIVIL  ACTIONS. 

Title  I.  Form  of  Civil  Actions.     §§307-309. 

II.  Time  of  Commencing  Civil  Actions.     §§  312-363. 

III.  Parties  to  Civil  Actions.     §§  367-390. 

IV.  Place  of  Trial  of  Civil  Actions.     §§  392-400. 

V.  Manner  of  Commencing  Cwil  Actions.     §§  405-416. 

VI.  Pleadings  in  Civil  Actions.     §§  420-476. 

VII.  Provisional  Remedies  in  Civil  Actions.     §§  478-574. 

VIII.  Trial  and  Judgment  in  Civil  Actions.     §§  577-6801^. 

IX.  Execution  of  Judgment  in  Civil  Actions.     §§  681-721. 

X.  Actions  in  Particular  Cases.     §§  726-827. 

XL  Proceedings  in  Justices'  Courts.     §§  832-926. 

XII.  Proceedings  in  Civil  Actions  in  Police  Courts.     §§  929-933. 

XIII.  Appeals  in  CrviL  Actions.     §§  936-980. 

XIV.  Miscellaneous  Provisions.     §  §  989-1059. 

(151) 


153 


FORM  OF  CIVIL  ACTIONS. 


§§307-309 


TITLE  I. 

FORM  OF  CIVIL  ACTIONS. 


307. 
308. 


One  form  of  civil  action  only. 
Parties  to  actions,  how  designated. 


§  309.     Special  issues  not  made  by  pleadings,  how 
tried. 


§  307.     One  form  of  civil  action  only.     There  is  in  this  state  but  one  form 

of  civil  actions  for  the  enforconient  or  protection  of  private  rights  and  the 

redress  or  prevention  of  private  Avrongs. 

38  Cal.  514,  520;  99  Am.  Deo.  423.  Tho 
general  principles,  however,  which  o;overn 
actions  are  not  abolished,  but  remain  the 
same  as  before  the  code.  Lubert  v.  Chau- 
viteau,  3  Cal.  458;  58  Am.  Dec.  415.  The 
distinction  between  law  and  equity  was 
not  intended  to  be  abolished;  only  the 
form,  not  the  substance,  of  actions.  De 
Witt  V.  Hays,  2  Cal.  463;  56  Am.  Dec.  352; 
Wiggins  V.  McDonald,  18  Cal.  126;  Lux  v. 
Haggin,  69  Cal.  255;  4  Pac.  919;  10  Pac. 
674.  The  principles  upon  which  the  rights 
of  the  parties  are  to  be  determined  remain. 
Spect  V.  Spect,  88  Cal.  437;  22  Am.  St. 
Rep.  314;  13  L.  R.  A.  137;  26  Pac.  203. 
The  rules  of  pleading  of  the  old  system 
are  applied,  where  not  inconsistent  with 
the  spirit  of  the  code.  Rowe  v.  Chandler, 
1  Cal.  167.  Thus,  an  action  for  money  had 
and  received  may  be  maintained  against 
one  who  holds  the  plaintiff's  money  with- 
out right,  and  under  an  implied  promise 
to  repaj''  the  same.  Gray  v.  Ellis,  164  Cal. 
481;  129  Pac.  791. 

Word  "action,"  construed.  See  note 
post,  §  363. 

Effect  of  release  of  one  joint  tort-feasor. 
In  an  action  ex  delicto  against  several 
wrong-doers,  charged  with  the  commission 
of  a  joint  tort,  the  release  of  one  of  the 
joint  defendants  is  the  release  of  all,  not- 
withstanding there  was  an  agreement  to 
the  contrary.  Flynn  v.  Manson,  19  Cal. 
App.  400;  126  Pac.  181. 


Legislation  g  307.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  1  (New  Yorli  Code, 
§  f)9),  which  had  (1)  "shall  be"  instead  of 
"is,"  (2)  "action"  instead  of  "actions,"  and  (3) 
"right"   instead  of  "rights." 

But  one  form  of  action.  There  is  but 
one  form  of  civil  action  for  the  enforce- 
ment or  protection  of  private  rights  and 
the  redress  or  prevention  of  private 
wrongs  (Jones  v.  Steamship  Cortes,  17  Cal. 
487;  79  Am.  Dec.  142;  Wiggins  v.  McDon- 
ald, 18  Cal.  126;  Walsh  v.  McKeen,  75  Cal. 
519;  17  Pac.  673;  Hurlbutt  v.  Spaulding 
Saw  Co.,  93  Cal.  57;  28  Pac.  795;  Rowe  v. 
Blake,  99  Cal.  167;  37  Am.  St.  Rep.  45;  33 
Pac.  864;  Barbour  v.  Flick,  126  Cal.  62S; 
59  Pac.  122;  Lux  v.  Higgins,  69  Cal.  255; 
4  Pac.  919;  10  Pac.  674;  Williams  v.  South- 
ern Pacific  R.  R.  Co.,  150  Cal.  t;24;  99  Pac. 
599);  and  any  relief  may  be  granted  which 
is  consistent  with  the  facts  stated  in  the 
complaint.  Walsh  v.  McKeen,  75  Cal.  519; 
17  Pac.  673.  The  relief  asked  is  not  to  be 
denied  because  it  might  have  been  sought 
under  a  different  form  of  action.  Merri- 
man  v.  Walton,  105  Cal.  407;  45  Am.  St. 
Rep.  50;  30  L.  R.  A.  786;  38  Pac.  1108. 
The  code  has  reduced  all  pleading  to  one 
common  system.  Bowen  v.  Aubrev,  22  Cal. 
566;  Huributt  v.  Spaulding  Saw  Co.,  93 
Cal.  55;  28  Pac.  795;  Carpentier  v.  Bren- 
ham,  50  Cal.  549;  Merriman  v.  Walton,  105 
Cal.  403;  45  Am.  St.  Rep.  50;  ,"  L.  R.  A. 
786;  38  Pac.  1108;  Thompson  v.  Laughlin, 
91  Cal.  313;  27  Pac.  752;  Cordier  v.  Schloss, 
12  Cal.  143;  Bostic  v.  Love,  16  Cal.  69; 
Kimball  v.  Lohmas,  31  Cal.  154.  Legal 
relief  and  equitable  relief  are  adminis- 
tered in  the  same  forum.    Grain  v.  Aldrich, 


CODE  COMMISSIONERS'  NOTE.  Probate  pro- 
ceedings are  not  civil  actions  (TOstate  of  Scott,  lo 
Cal.  220),  and  they  are,  therefore,  placed  under 
the  division  (Part  III)  of  this  code  relating  to 
special  proceedings. 


§  308.  Parties  to  actions,  how  designated.  In  such  action  the  party  com- 
plaining is  known  as  the  plaintifiP ,  and  the  adverse  party  as  the  defendant. 

Legislation  §  308.     Enacted  March  11,   1873;  tion  is  made  for  letters  of  administration, 

based     on     Practice     Act,  §  2     (New    York     Code,  •       ,ij      ^^        Mnttpr    nf    tbp    F^l-itp    nf   

§70),   which  had  the  words   "shall  be"   instead  ^^,     in   tne  flatter  ot   tne   J:.state  ot 

of  "is."  Deceased.       O  Brien    v.    ^Nelson,    164    Cal. 

Title  of  proceeding  in  probate.     The  cor-       ^'^J  ^^^  ^^^-  ^^^' 
rect  title  of  a  cause,  in  which  an  applica- 

§  309.  Special  issues  not  made  by  pleadings,  how  tried.  A  question  of 
fact  not  put  in  issue  by  the  pleadings  may  be  tried  by  a  jury,  upon  an  order 
for  the  trial,  stating  distinctly  and  plainly  the  question  of  fact  to  be  tried ; 
and  such  order  is  the  only  authority  necessary  for  a  trial. 

Legislation  §  309.      Enacted   March    11,    1873;  trial  may  be  made,   stating  distinctly  and  plainly 

based    on    Practice   Act,  §  3,    which    read:    "When  the   question  of  fact  to  be  tried;    and   such  order 

a  question  of  fact  not  put  in  issue  by  the  plead-  Bhall  be  the  only  authority  necessary  for  a  trial." 
ings  is  to  be  tried  by  a  jury,   an  order  for  the 


§312 


TIME  OF  COMMENCING  ACTIONS. 


154 


TITLE  11. 
TIME  OF  COMMENCING  CIVIL  ACTIONS. 

Chapter  I.     Time  of  Commencing  Actions  in  General.     §  312. 

II.     Time  of  Commencing  Action  for  Eecovery  of  Real  Property.     §§  315-328. 
III.     Time   of  Commencing   Actions   Other  than  for  Recovery   of  Real   Property. 

§§  335-349. 
rV.     General  Provisions  as  to  Time  of  Commencing  Actions.     §§  350-363. 


CHAPTER  I. 

TIME  OF  COMMENCING  ACTIONS  IN  GENERAL. 

§  312.     Commencement  of  civil  actions. 

§  312.  Commencement  of  civil  actions.  Civil  actions,  without  exception, 
can  only  be  commenced  within  the  periods  prescribed  in  this  title,  after  the 
cause  of  action  shall  have  accrued,  unless  where,  in  special  cases,  a  different 
limitation  is  prescribed  by  statute. 


Legislation  §  312.    1.  Enacted  March  11,  1873; 
■based  on  Stats.   1850,   p.   343. 

3.   Amended  by  Stats.   1897,  p.   16,    (1)   omit- 
ting  the   words    "without    exception"    after    "civil 
actions,"    and     (2)     changing    the    word    "unless 
from  "except." 

Construction  of  section.  When  one  is 
under  disability,  or  when  from  any  cause 
the  right  of  action  is  not  perfect,  the  stat- 
ute does  not  begin  to  run.  Feeney  v. 
Hincklev,  134  Cal.  467;  86  Am.  St.  Rep. 
290;  66>ac.  580.  The  only  statutory  pro- 
vision prescribing  a  rule  different  from 
that  contained  in  this  section  seems  to  be 
I  359,  post,  which  refers  solely  to  actions 
against  directors  or  stockholders  of  cor- 
porations. Pryor  v.  "Winter,  147  Cal.  554; 
109  Am.  St.  Rep.  162;  82  Pac.  202.  Upon 
an  action  against  stockholders  to  enforce 
their  liability,  the  cause  of  action  accrues 
with  the  creation  of  the  debt  sought  to  be 
enforced  (Redington  v.  Cornwell,  90  Cal. 
49;  27  Pac.  40;  Hunt  v.  Ward,  99  Cal.  612; 
37  Am.  St.  Rep.  87;  34  Pac.  335),  and  the 
reason  for  this  seems  to  be,  that  such  an 
obligation  is  a  creature  of  statute,  and  not 
a  contract.  Green  v.  Beekman,  59  Cal.  545; 
Moore  v.  Boyd,  74  Cal.  167;  15  Pac.  670; 
Redington  v.  Cornwell,  90  Cal.  49;  27  Pac. 
40;  Hunt  v.  Ward,  99  Cal.  612;  37  Am.  St. 
Rep.  87;  34  Pac.  335.  Payment  of  a  cor- 
poration note  by  the  sureties  creates  a  new 
and  distinct  debt  against  the  corporation 
and  its  stockholders,  and  the  statute  be- 
gins to  run  against  the  sureties  from  the 
date  of  the  payment  of  the  debt.  Ryland 
V.  Commercial  "etc.  Bank,  127  Cal.  525;  59 
Pac.  989. 

Application  of  title  to  actions  against 
directors  or  stockholders  of  corporations. 
See  note  post,  §  359. 

Extension  of  statute.  An  extension  of 
the  period  of  limitation  of  an  action  is 
valid,  when  made  before  the  former  period 
of  limitation  has  expired.  Weldon  v. 
Rogers,  151  Cal.  432;  90  Pac.  1062. 


Cause  of  action  must  accrue  to  set  stat- 
ute in  motion.  The  accrual  of  a  cause  of 
action  sets  the  statute  of  limitations  run- 
ning (Swamp  Land  District  v.  Glide,  112 
Cal.  85;  44  Pac.  451;  Leonard  v.  Flynn,  89 
Cal.  535;  23  Am.  St.  Rep.  500;  26  Pac, 
1097);  but  this  does  not  imply  the  exist- 
ence of  a  person  legally  competent  to  en- 
force the  action.  Tynan  v.  Walker,  35  Cal. 
634;  95  Am.  Dec.  152. 

When  cause  of  action  accrues.  The  gen- 
eral rule  is,  that  the  statute  of  limitations 
commences  to  run  within  the  prescribed 
period  after  the  cause  of  action  has  ac- 
crued (Hunt  v.  Ward,  99  Cal.  614;  37  Am. 
St.  Rep.  87;  34  Pac.  335;  San  Diego  v. 
Higgins,  115  Cal.  170;  46  Pac.  923);  but 
this  general  rule  is  subject  to  such  different 
rules  as  may  be  prescribed  for  special 
cases.  Cook  v.  Ceas,  143  Cal.  222;  77  Pac. 
65.  Except  in  cases  of  fraud,  the  time  of 
the  act,  and  not  the  time  of  the  discovery, 
sets  the  statute  in  motion.  Lightner  Min- 
ing Co.  V.  Lane,  161  Cal.  689;  Ann.  Cas. 
1913C,  1093;  120  Pac.  771. 

Trustee  must  repudiate  trust.  In  the 
case  of  a  trustee,  only  an  unequivocal  re- 
pudiation of  the  trust  by  him,  with  knowl- 
edge of  this  brought  home  to  the  bene- 
ficiaries of  the  trust,  can  set  the  statute 
in  motion  in  favor  of  the  trustee.  Elizalde 
V.  Murphy,  163  Cal.  681;  126  Pac.  978. 

Judgment  must  be  final.  A  cause  of 
action  upon  a  judgment  does  not  accrue 
until  the  judgment  has  become  final  and 
admissible  in  evidence;  that  is,  after  the 
lapse  of  the  period  within  which  an  appeal 
might  be  taken  from  the  judgment,  if 
none  is  taken  therefrom,  or  after  final  de- 
termination following  an  appeal  so  taken. 
Feeney  v.  Hinckley,  134  Cal.  467;  86  Am. 
St.  Rep.  290;  66  Pac.  580.  Upon  a  judg- 
ment of  a  probate  court  for  partition  of 
real    estate,   the    cause    of    action    accrues 


155 


COMMENCEMENT  OF  CIVIL  ACTIONS. 


§312 


■pon  entry  of  judgment.  Cortez  v.  Su- 
perior Court,  86  Cal.  274;  21  Am.  St.  Kep. 
37;  24  Pac.  1011;  White  v.  Clark,  8  Cal. 
512,513. 

Action  for  damages.  At  law,  a  cause  of 
action  accrues  whenever  there  is  an  injury 
for  which  the  law  has  provided  a  remedy; 
but  in  many  eases  in  equity,  such  as  an 
action  for  partition  by  tenants  in  common 
(Love  V.  Watkins,  40  Cal.  547;  6  Am.  Eep. 
624),  and  an  action  to  cjuiet  title  to  real 
estate,  this  is  not  true.  Arrington  v.  Lis- 
com,  34  Cal.  365;  94  Am.  Dec.  722.  A 
cause  of  action  for  damages  for  the  breach, 
by  abandonment,  of  a  building  contract, 
accrues  at  the  time  of  such  abandonment. 
Bacigalupi  v.  Phcenix  Bldg.  etc.  Co.,  14 
Cal.  App.  632;  112  Pac.  892. 

Obligations  payable  on  demand.  Upon  an 
agreement  to  pay  money  on  demand,  the 
cause  of  action  accrues  on  the  date  of  the 
delivery  of  the  agreement  (Halleck  v. 
Moss,  22  Cal.  266);  and  upon  a  note  pay- 
able upon  demand,  it  accrues  upon  the  exe- 
cution and  delivery  of  the  note.  Ziel  v. 
Dukes,  12  Cal.  479;  Davis  v.  Eppinger,  18 
Cal.  378,  79  Am.  Dec.  184;  Bell  v.  Sackett, 
38  Cal.  407.  The  same  is  true  of  a  certifi- 
cate of  deposit.  Vrummagim  v.  Tallant,  29 
Cal.  503;  89  Am.  Dec.  61.  An  action  to 
recover  dividends  accrues  on  the  refusal  of 
the  corporation  to  pay.  Bills  v.  Silver  King 
Mining  Co.,  106  Cal.  9;  39  Pac.  43.  An  in- 
terest coupon,  attached  to  a  bond,  is  an 
independent  obligation;  and,  when  detached 
from  the  bond  and  transferred  to  another 
than  the  holder  of  the  bond,  the  statute 
begins  to  run  from  the  time  of  its  matu- 
rity. California  Safe  Deposit  etc.  Co.  v. 
Sierra  Valleys  Ey.  Co.,  158  Cal.  690;  Ann. 
Cas.  1912A,  729;  112  Pac.  272. 

Conditional  contracts.  The  cause  of  ac- 
tion for  the  breach  of  a  conditional  or  con- 
tingent contract  does  not  accrue  until  the 
accomplishment  of  the  condition  or  the 
happening  of  the  contingency.  Bartlett  v. 
Odd  Fellows'  Sav.  Bank,  79  Cal.  218,  12 
Am.  St.  Eep.  139;  21  Pac.  743.  The  cause 
of  action  upon  an  agreement  to  give  a 
mortgage  accrues  upon  the  failure  to  tender 
the  mortgage  upon  the  date  agreed.  O'Con- 
nor v.  Dingley,  26  Cal.  11;  Jerome  v.  Steb- 
bins,  14  Cal.  457;  Green  v.  Palmer,  15  Cal. 
411;  76  Am.  Dec.  492.  An  action  for  com- 
missions for  the  sale  of  land  accrues  only 
after  the  sale  is  consummated,  or  tender  of 
performance  of  contract  to  sell.  Dinkel- 
epiel  V.  Nason,  17  Cal.  App.  591;  120  Pac. 
789.  A  promise  to  pay  a  debt  "when  able" 
is  conditional,  and  no  cause  of  action  ac- 
crues thereon  until  the  debtor  is  able  to 
pay;  until  then  the  statute  does  not  com- 
mence to  run.  Van  Buskirk  v.  Kuhns,  164 
Cal.  472;  129  Pac.  587.  Where  the  breach 
of  a  condition  is  overlooked  or  waived,  and 
there  is  no  obligation  to  pay  money,  the 
rights  of  the  parties  continue  as  before, 
without  regard  to  the  breach,  and  the  stat- 


ute does  not  commence  to  run.  Congrega- 
tional Church  Bldg.  Society  v.  Osborn,  153 
Cal.  197;  94  Pac.  881. 

Effect  on  debt  of  extinguishment  of  lien. 
Although  tlie  lien  of  a  mortgage  is  extin- 
guished by  the  barring  of  the  debt  by  the 
statute  of  limitations,  yet  the  mortgagor 
cannot,  without  paying  his  debt,  quiet  his 
title  nor  maintain  ejectment  against  his 
mortgagee  in  possession.  Puekhaber  v. 
Henry,  152  Cal.  419;  125  Am.  St.  Eep.  75; 
14  Ann.  Cas.  844;  93  Pac.  114. 

Presumption  of  demand.  Whenever  a  de- 
mand is  necessary  to  put  the  adverse  party 
in  default,  he  cannot  indefinitely  and  un- 
necessarily extend  the  bar  of  the  statute 
by  deferring  such  demand.  Thomas  v.  Pa- 
cific Beach  Company,  115  Cal.  136,  46  Pac. 
899;  Meherin  v.  San  Francisco  Produce  Ex- 
change, 117  Cal.  215;  48  Pac.  1074;  Witt- 
man  V.  Board  of  Police  Commissioners,  19 
Cal.  App.  229;  125  Pac.  265;  Vickrey  v. 
Maier,  164  Cal.  384;  129  Pac.  273.  Where 
there  is  a  personal  liability  imposed  upon 
a  devisee,  by  the  will,  for  the  payment  of 
money,  the  beneficiary  is  entitled  to  bring 
an  action  to  recover  the  money  of  the  dev- 
isee, if  not  paid  within  a  reasonable  time 
after  the  liability  accrues.  Keir  v.  Keir, 
155  Cal.  96;  99  Pac.  487. 

Actions  on  indemnity.  The  cause  of  ac- 
tion on  an  indemnity  bond  against  dam- 
ages does  not  begin  to  run  until  the  in- 
demnified person  has  actually  paid  the 
damages  against  which  he  was  indemnified 
(Lott  V.  Mitchell,  32  Cal.  23;  Oaks  v. 
Schiefferly,  74  Cal.  478;  16  Pac.  252);  but 
on  a  bond  against  liability  for  damages, 
the  cause  of  action  accrues  as  soon  as  a 
judgment  has  been  rendered  for  damages. 
McBeth  V.  Mclntyre,  57  Cal.  49. 

Specific  performance.  The  statute  does 
not  begin  to  run  against  an  action  to  en- 
force the  specific  performance  of  a  contract 
until  a  breach  thereof  (Vickrey  v.  Maier, 
164  Cal.  384;  129  Pac.  273);  but  it  com- 
mences to  run,  in  such  a  case,  upon  the  vio- 
lation of  an  implied  obligation.  Hopkins 
V.  Lewis,  18  Cal.  App.  107;  122  Pac.  433. 

Warranty  and  guaranty.  An  action  upon 
an  implied  warranty  of  chattels  accrues 
when  the  vendee  is  disturbed  in  his  posses- 
sion. Gross  V.  Kierski,  41  Cal.  111.  The 
liability  of  the  guarantor  of  a  note  secured 
by  mortgage  accrues  at  the  maturity  of  the 
note,  regardless  of  the  exhaustion  of  the 
mortgage  security.  Woolwine  v.  Storrs,  148 
Cal.  7;  113  Am.  St.  Eep.  183;  82  Pac.  434. 

Action  against  remainderman.  If  a 
charge  is  imposed  upon  an  estate  in  re- 
mainder, and  the  liability  of  the  remain- 
derman does  not  mature  until  the  expira- 
tion of  a  life  estate,  the  statute  does  not 
commence  to  run  in  his  favor  until  that 
time  (Keir  v.  Keir,  155  Cal.  96;  99  Pac. 
4S7);  and  the  possession  of  a  tenant  can- 
not be  adverse  to  the  remainderman  until 
the   termination  of  the  life  estate.    Pryor 


§312 


TIME  OP   COMMENCING  ACTIONS. 


156 


Y.  Winter,  147  Cal.  554;  109  Am.  St.  Eep. 
162;  82  Pac.  202. 

Action  on  insurance  policy.  No  action 
can  be  maintained  upon  an  insurance  policy 
until  the  expiration  of  the  time  after  the 
loss  fixed  by  the  policy.  Irwin  v.  Insurance 
Company,  16  Cal.  App.  143;  116  Pac.  294. 
A  condition  in  an  insurance  policy,  that  no 
recovery  can  be  had  unless  suit  is  brought 
within  a  given  time,  is  valid,  where  such 
time  is  not,  in  itself,  unreasonable.  Teb- 
bets  v.  Fidelity  and  Casualty  Co.,  155  Cal. 
137;  99  Pac.  501. 

Statute  may  be  waived.  The  statute  of 
limitations  is  a  statute  of  repose:  it  grants 
a  mere  personal  right,  which  may  be  waived 
either  in  whole  or  in  part.  Tebbets  v. 
Fidelity  and  Casualty  Co.,  155  Cal.  137;  99 
Pac.  501;  Archer  v.  Harvey,  164  Cal.  274; 
128  Pac.  410.  No  distinction,  upon  the 
ground  of  public  policy,  exists  between  the 
right  of  a  party  to  waive  the  plea  of  the 
statute  of  limitations  as  a  defense  to  an 
action,  and  his  right  to  waive  a  portion  of 
the  time  granted  by  the  statute  for  the 
commencement  of  an  action.  Tebbets  v. 
Fidelity  and  Casualty  Co.,  155  Cal.  137;  99 
Pac.  501. 

Pleading  the  statute.  If  the  complaint 
shows  on  its  face  that  the  statute  has  run, 
the  defendant  may  set  up  the  bar,  either 
by  demurrer  or  answer;  but  if  it  does  not 
show  on  its  face  that  the  statute  has  run, 
the  defendant  must  plead  the  defense  of 
the  statute  by  answer.  California  Safe  De- 
posit etc.  Co.  V.  Sierra  Valleys  Ey.  Co.,  158 
Cal.  690;  Ann,  Cas.  1912A,  729;  112  Pac. 
272. 

Discretion  of  court.  Ignorance  of  injury 
will  not  prevent  the  running  of  the  statute 
(Lightner  Mining  Co.  v.  Lane,  161  Cal.  689; 
Ann.  Cas.  1913C,  1093;  120  Pac.  771);  but 
the  court  has  discretion  to  permit  the  stat- 
ute to  be  pleaded,  and,  in  its  discretion, 
may  permit  the  plea  to  be  amended,  by 
designating  the  particular  subdivision  of 
the  section  relied  upon.  St.  Paul  Title  etc. 
Co.  V.  Stensgaard,  162  Cal.  178;  121  Pac. 
731. 

Estoppel  to  plead  statute.  One  may,  by 
his  conduct,  estop  himself  from  pleading 
the  statute.  Phillips  v.  Phillips,  163  Cal. 
530;  127  Pac.  346. 

Laches  may  bar  remedy.  Stale  demands 
will  not  be  aided,  where  the  claimant  has 
slept  upon  his  rights  for  so  long  a  time 
and  under  such  circumstances  as  to  make  it 
inequitable  to  enter  upon  an  inquiry  as  to 
the  validity  thereof;  where  such  is  the  con- 
dition, the  demand  is,  in  a  court  of  equity, 
barred  by  laches  (Suhr  v.  Lauterbach,  164 
Cal.  591;  130  Pac.  2);  but  laches  for  a  time 
less  than  the  statutory  period  is  no  bar, 
where  the  defendant  is  not  prejudiced. 
Shiels  V.  Nathan,  12  Cal.  App.  604;  108 
Pac.  34. 

Suit  for  the  death  of  one  caused  by 
wrongful  act  of  another.  See  note  post, 
§377. 


When  the  statute  commences  to  run.  See 

note  post,  §  337. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  Statute  of  limitations  not  retroactive.  Stat- 
utes of  limitation  do  not  act  retrospectively;  they 
do  not  begin  to  run  until  they  are  passed.  Thus 
an  act  of  April  2,  1855,  limiting  the  lime  for  the 
commencement  of  an  action  on  a  foreign  judg- 
ment to  two  years  could  not  be  pleaded  in  an  ac- 
tion brought  in  1856  on  a  foreign  judgment 
obtained  in  1847.  Nelson  v.  Nelson,  6  Cal.  430; 
see  particularly  Scarborough  v.  Uugan,  10  Cal. 
305;  also  Billings  v.  Hall,  7  Cal.  1;  Billings  v. 
Harvey,  6  Cal.  381. 

2.  When  statute  as  amended  begins  to  run. 
By  the  state  constitution  the  amendment  of  a 
statute  operates  as  an  absolute  repeal  of  the  sec- 
tion amended  (Const.,  art.  iv,  §25),  notwith- 
standing the  amendment  takes  nothing  away  fron» 
the  old  law,  but  simply  re-enacts  the  section 
amended,  with  the  addition  of  a  proviso  in  cer- 
tain cases.  The  act  of  April,  1855,  amending 
§  6  of  the  statute  of  limitations  of  1850,  by  re- 
enacting  the  section,  with  the  addition  of  a  pro- 
viso concerning  actions  under  Spanish  or  Mexi- 
can titles,  repeals  the  section  of  the  law  of  1850 
in  toto.  The  re-enactment  creates  anew  the  rule 
of  action,  and  even  if  there  was  not  the  slightest 
difference  in  the  phraseology  of  the  two,  the  lat- 
ter alone  can  be  referred  to  as  the  law,  and  the 
former  stands,  to  all  intents,  as  if  absolutely  and 
expressly  repealed.  Thus  it  would  follow  that 
the  act  of  1855,  in  this  case,  would  be  the  only 
statute  of  limitations,  and  the  time  fixed  therein 
runs  only  from  the  date  of  that  act.  Billings  v. 
Harvey,  6  Cal.  381;  see  also  Clarke  v.  Huber,  25 
Cal.  593. 

3.  Vested  rights.  Obligations  of  contract  not 
impaired.  An  amendatory  act  to  the  statute  of 
limitations  does  not  divest  any  rights  vested 
under  the  old  law,  for  statutes  of  limitation  atTect 
the  right,  and  not  the  remedy.  See  Billings  v. 
Hall,  7  Cal.  1.  But  it  was  held  that  a  right 
without  a  remedy  is  practically  no  rifrht  at  all, 
and  that  a  statute  of  limitations  can  only  be  con- 
strued to  anply  (in  the  case  of  foreign  judg- 
ments) to  judgments  not  in  esse  at  the  time  of 
the  passage  of  the  act.  Scarborough  v.  Dugan, 
10  Cal.  305;  see,  however,  Civ.  Code,  "Obliga- 
tion," §  1427. 

4.  Fraudulent  concealment.  Statutes  of  limi- 
tation are  passed  to  prevent  the  production  of 
Btale  claims  when,  from  the  lapse  of  time,  it  has 
become  difficult  or  impossible  to  furnish  the 
requisite  proof  to  defeat  them.  They  proceed 
upon  the  theory  that  the  delay,  for  a  fixed  period, 
to  assert  one's  claim,  raises  a  presumption  of 
settlement,  and  that  a  party  ought  not  to  be  after- 
wards harassed  respecting  it.  They  are  not  in- 
tended to  protect  a  party  who  has,  by  fraudulent 
concealment,  delayed  the  assertion  of  a  right 
against  him  until  after  the  expiration  of  the  period 
limited  by  the  statute.  The  question,  whether 
a  fraudulent  concealment  of  the  fact,  upon  the 
existence  of  which  the  cause  of  action  accrues, 
would  avoid  the  statute  of  limitations,  has  fre- 
quently arisen,  and  in  its  decision  thers  is  much 
conflict  of  opinion.  In  courts  of  equity  it  is  the 
settled  doctrine  that  such  concealment  will  pre- 
vent the  operation  of  the  statute,  and  it  is  only 
in  the  application  of  the  doctrine  to  suits  at  law 
that  the  diversity  of  opinion  exists.  See  cases 
cited  and  commented  on,  Kane  v.  Cook,  8  Cal. 
449.  "In  this  diversity  of  opinion,"  say  the 
court,  "we  are  free  to  adopt  the  rule  which  will 
best  tend  to  advance  justice  and  prevent  the  per- 
petration of  fraud:  and  we  therefore  hold,  that 
in  all  cases  a  fraudulent  concealment  of  the 
fact,  upon  the  existence  of  which  the  cause 
of  action  accrues,  is  a  good  answer  to  the  plea 
of  the  statute  of  limitations.  By  the  system  of 
practice  in  this  state  there  is  no  replication  to 
the  answer.  The  fraudulent  concealment  cannot, 
therefore,  be  replied  to  by  pleading,  but  it  may 
be  established  by  proof  on  the  trial,  and  will 
then  just  as  effectually  avoid  the  plea  of  the 
statute."    Kane  v.  Cook,  8  Cal.  449. 

5.  When  cause  of  action  accrues.  The  statute 
provides    that    civil   actions    shall    be    commenced 


.157 


COMMENCEMENT  OF  CIVIL  ACTIONS. 


§312 


•within  certain  periods  therein  prescribed,  "after 
the  cause  of  action  shall  have  accrued."  The 
clause  "after  the  cause  of  action  shall  have  ac- 
crued" does  not,  in  our  judgment,  imply,  in  addi- 
tion, the  existence  of  a  person  legally  competent 
to  enforce  it  by  suit.  If  it  did,  why  in  subse- 
quent parts  of  the  statute  provide  that  the  statute 
shall  not  run  in  certain  cases  specified,  which  are 
excepted  from  the  operation  of  the  statute,  be- 
cause the  persons  in  whose  favor  the  cause  of 
action  exists  are  legally  incompetent  to  sue  '. 
Obviously,  if  the  term  "right  of  action"  implies 
the  existence  of  a  person  competent  to  commence 
an  action,  there  was  no  occasion  for  special  pro- 
visions relieving  persons  not  competent  from  the 
operation  of  the  statute.  Nothing  further  need 
have  been  said,  for  the  courts,  after  having  as- 
certained the  existence  of  a  right  of  action,  would 
have  next  inquired  whether  there  was  any  person 
in  existence  legally  competent  to  enforce  it  by 
suit,  and  computed  the  time  accordingly.  Again, 
if  it  was  the  intention  to  provide  thai  the  statute 
should  run  only  where  tliere  is  both  a  rir.ht  of 
action  and  a  person  to  assert  it,  why  not  insert  a 
.provision  to  that  effect  in  general  terms,  and  not 
take  the  hazard,  by  going  into  details,  of  omit- 
ting cases  which  oupht,  on  the  score  of  equal 
equities,  to  be  included?  But,  again,  if  we  as- 
sume that  the  term  "cause  of  action"  contains 
also  a  general  implication  in  relation  to  disabil- 
ities, what,  in  view  of  the  subsequent  specification 
of  disabilities,  becomes  of  the  settled  rule,  that 
general  words  are.  limited  by  special  words  sub- 
sequently emnloyed,  or  the  maxim,  Exprpssio 
unius  est  exclusio  alterius?  The  tv/enty-fourth 
section  provides  an  exception,  where  the  parly 
entitled  to  bring  an  action  dies  after  the  cause 
of  action  accrued,  and  before  the  expiration  of 
the  time  allowed  for  commencing  the  action,  and 
also  where  the  party  against  wh'im  an  action 
may  be  brought  dies  before  the  expiration  of  the 
time  allowed,  but  no  provision  is  made  excepting 
a  case  where  the  party  who  would  have  been  en- 
titled to  sue  dies  before  the  cause  of  action  has 
accrued.  Nor  do  we  perceive  any  substantial 
reason  why  any  exception  should  be  made.  If 
the  cause  of  action  does  not  accrue  until  after  the 
death  of  the  party  who  would  have  been  entitled 
to  sue,  the  persons  interested  in  his  estate — his 
creditors,  heirs,  and  devisees — have  the  full  time 
allowed  Ijy  the  statute  in  which  to  mo\  e  in  the 
matter  to  obtain  a  grant  of  administration  and 
commence  an  action.  Even  if  we  recognized  the 
doctrine  of  inherent  equity,  or  implied  exception, 
we  are  unable,  independent  of  tlie  judicial  dogma 
that  the  term  "cause  of  action"  also  implies  a 
person  to  sue,  to  perceive  that  this  case  falls 
within  the  principle.  It  certainly  has  less  equity 
than  the  case  where  the  cause  of  action  has  ac- 
•crued  in  the  lifetime  of  the  party;  yet  in  such 
a  case  the  statute  runs  on,  according  to  the  cases 
to  which  we  have  referred,  even  though  there 
may  not  be  forty-eight  hours  of  the  limitation  re- 
maining at  the  time  of  his  death.  The  legislature 
of  this  state  seems  to  have  considered  this  latter 
result  of  the  English  statutes  as  unreasonable, 
and  has  therefore  provided,  as  we  have  seen, 
that  the  time  allowed  to  sue  shall  be  extended, 
if  necessary,  not  to  exceed  six  months  from  his 
death,  thus  affording  time  to  obtain  a  grant  of 
administration  and  sue.  Tynan  v.  Walker,  35 
Cal.  643;  95  Am.  Dec.  152. 

6.  When  cause  of  action  accrues,  trustee  and 
■beneficiary.  Where  a  person  holds  land  in  trust 
for  another,  and  there  is  an  apreement  that  the 
trustee  shall  convey  it  to  the  beneficiary  upon 
the  payment  of  the  purchase-money,  a  cause  of 
action  does  not  arise  to  compel  the  execution  of 
the  trust  until  such  money  is  naid  to  the  trustee, 
and  the  statute  of  limitations  does  not  commence 
to  run  until  that  time.  Millard  v.  Hathaway,  27 
Cal.  120. 

7.  Contribution,  action  for,  when  statute  be- 
gins  to  run.  In  an  action  for  contribution  be- 
tween joint  obligors,  the  statute  of  limitations 
does  not  begin  to  run  until  after  the  payment  of 
the  debt  by  the  plaintifT.  Sherwood  v.  Dunbar, 
6  Cal.  53. 

8.  When  begins  to  run  against  judgment.  The 
statute  of  limitations  commences  to  run  against 
a  judgment  only  from  the  time  of  the  final  entry 
thereof.    Parljp  v.  Williams,  7  Cal.  247. 


9.  Action  to  recover  a  reward  offered  by  publi- 
cation, when  statute  begins  to  run.  In  an  ac- 
tion to  recover  a  reward  olft-iid  "for  such  infor- 
mation as  would  lead  to  the  arrest  and  conviction 
of  the  ofleiider,"  the  statute  of  limitations  could 
not  begin  to  run  until  after  trial  and  conviction. 
Ryer  v.  Stockwell,   14  Cal.   1  :j4  ;   7.;  Am.   Dec.   6.34. 

10.  Fraud.  Limitation  of  an  action  to  set  aside 
deed  fraudulently  obtained  from  a  non  compos 
mentis.  The  statute  does  not  run  against  a 
grantor's  right  to  commence  an  action  to  set  aside 
a  deed  obtained  by  fraud  from  him  when  he  wa* 
insane,  until  he  recovers  his  reason  and  dis- 
covers what  he  has  done.  Crowther  v.  Rowland- 
son,  27  Cal.  37G. 

11.  Fraud.  In  cases  of  fraud,  when  the  stat- 
ute of  limitations  commences  to  run.  See  Oak- 
land V.  Carpentier,  13  Cal.  540. 

•  12.  Actions  for  relief  on  ground  of  fraud. 
Statute  does  not  begin  to  run  against  time  for 
commencing  action  for  relief  on  ground  of  fraud 
until  the  discovery  of  the  fraud.  Currev  v.  Allen, 
34  Cal.  257. 

13.  Monthly  salary,  where  term  Is  for  one  year. 
An  officer  elected  for  a  term  of  one  year,  with  a 
monthly  salary,  the  statute  does  not  commence 
to  run  against  any  portion  of  his  salary  until 
the  expiration  of  his  yearly  term.  Rosborough 
V.  Shasta  River  Canal  Co.,  22  Cal.  556. 

14.  Banker's  certificate  of  deposit.  If  has  been 
held  tliat  the  statute  runs  against  a  banker's  cer- 
tificate of  deposit,  payable  on  demand  from  the 
date  of  the  same,  and  no  special  demand  is  ne- 
cessary. Brumma.jrim  v.  Tallant,  29  Cal.  503: 
89  Am.  Dec.  61.  In  this  respect  a  certificate  of 
deposit  and  a  promissory  note  are  the  same.      Id. 

15.  When  cause  of  action  accrues  on  promis- 
sory note.  Payment  of  interest  on  note  afier  the 
note  has  become  due  does  not  prolong  time  of 
payment  of  note  so  as  to  affect  the  statute  of 
limilations.  A  note  payable  six  months  from 
date,  with  interest  monthly  in  advance,  contained 
the  following  clause :  "In  case  said  interest,  or 
any  part  thereof,  should  become  due  and  remain 
unpaid  after  demand,  then  the  mortgage  given 
by  me,  of  even  date  herewith,  to  secure  the  pay- 
ment of  this  note,  may  be  foreclosed."  The  mort- 
gage contained  a  corresponding  provision.  The 
prompt  payment  of  the  interest  on  demand  did 
not  prolong  the  time  for  the  payment  of  the  note 
beyond  the  time  specified  therein;  and  although 
the  interest  was  paid  until  a  year  before  the 
commencement  of  the  action  to  foreclose  the  mort- 
gage, yet  more  than  four  years  and  six  months 
have  elapsed  since  the  date  of  the  note;  held, 
that  the  note  was  barred  by  tlie  statute  of  limi- 
tations.   Pendleton  v.  Rowe,  34  Cal.  150. 

16.  Promissory  note.  Part  payments.  A  part 
payment  indorsed  upon  a  promissory  note,  made 
before  or  after  the  expiration  of  the  period  fixpd 
by  statute  of  limitations,  does  not  avoid  the  bar 
of  the  statute.     Heinlin  v.  Castro,  22  Cal.   100. 

17.  Promissory  note  payable  on  failure  to  pay 
interest,  etc.  Upon  a  note  payable  six  months 
after  date,  with  interest  payable  monthly,  and 
further  providing  that,  "in  case  default  be  made 
in  any  payment  of  interest  when  the  same  shall 
have  become  due,  then  the  whole  amount  of  prin- 
cipal and  interest  to  become  due  and  payable  im- 
mediately upon  such  default,"  the  cause  of  ac- 
tion, within  the  true  meaning  of  the  statute  of 
limitations,  arises  at  the  expiration  of  the  credit 
fixed  by  the  note,  and  not  at  the  time  when  de- 
fault is  made  in  the  payment  of  the  interest. 
Belloc  V.  Davis,  38  Cal.  247. 

18.  Promissory  note,  with  days  of  grace.  In 
•  computing  the  time  at  which  the  statute  of  limi- 
tations commences  to  run  on  promissory  notes, 
the  day  on  which  the  note  becomes  due  is  ex- 
cluded in  all  cases  when  days  of  grace  are  al- 
lowed. The  statute  runs  from  the  last  day  of 
grace,  excluding  the  day  on  which  the  note  falls 
due.    Bell  v.  Sackett,  38  Cal.  409. 

19.  Agreement  not  to  sue  on  a  demand.  If 
a  party  enters  into  a  valid  agreement,  in  writing, 
with  the  defendant,  not  to  sue  upon  a  particular 
demand,  which  he  holds,  until  the  happening  of  a 
particular  event,  the  running  of  the  statute  is 
suspended  until  the  event  occurs.  Smith  v.  Law- 
rence,  38   Cal.  24;   99  Am.   Dec.   344. 

20.  Covenant  of  warranty  for  quiet  enjoyment. 
Eviction.      Where  a  tenant  in  possession  is  evicted, 


§312 


TIME  OF   COMMENCING   ACTIONS. 


158^ 


the  statute  tpgins  to  run  at  the  time  of  the 
eviction,  whether  such  eviction  be  actual  or  con- 
structive. McGary  v.  Hastings,  39  Cal.  360;  2 
Am.  Rep.  456. 

21.  No  presumption  of  payment  raised  by  stat- 
ute. It  was  formerly  held  that  statutes  of  limi- 
tation proceeded  upon  a  presumption  of  previous 
payment,  and  that  the  effect  of  an  acknowledg- 
ment was  to  rebut  this  presumption  and  place  the 
debt  upon  its  original  footing.  This  view  is  not 
exploded,  and  the  statute  is  universally  regarded 
rs  one  of  repose,  the  benefit  of  which  may  be  re- 
linquished by  the  party  interested,  but  cannot  he 
taken  from  him  without  his  consent.  If  two  or 
more  persons  are  bound,  the  same  protection  is 
afforded  to  each,  and  an  acknowledgment  by  one 
is  not  available  against  the  other,  unless  he  had 
authority  to  make  it.  McCarthy  v.  White,  21  Cal 
502;   82  Am.  Dec.  754. 

22.  Action  to  enforce  or  establish  a  trust 
Where  a  trust  attached  to  a  legal  title  acquired 
through  a  sheriff's  deed,  the  statute  does  not  be 
gin  to  run  until  the  execution  of  the  deed.  Cur 
rey  v.  Allen,  34  Cal.  257. 

23.  Trusts.  Trustee  and  beneficiary.  The  stat 
ute  of  limitations  does  not  run  against  an  ex 
press  continuing  trust  until  the  trustee  places 
himself  in  hostility  to  the  trust.  Schroeder  v, 
Jahas,  27  Cal.  274;  Miles  v.  Thorne,  38  Cal.  335 
99  Am.  Dec.  384.  As  between  trustees  and 
cestui  que  trust,  in  the  case  of  an  express  trust, 
the  statute  of  limitations  does  not  begin  to  run 
until  the  trustee  repudiates  the  trust  by  clear 
and  unequivocal  acts  or  words,  and  claims  thence- 
forth to  hold  the  estate  as  his  own,  not  subject 
to  any  trust,  and  stich  repudiation  and  claim 
are  brought  to  the  knowledge  of  the  cestui  que 
trust.  Hearst  v.  Pujol,  44  Cal.  230;  Baker  v. 
Joseph,  16  Cal.  173.  See  also  Ord  v.  De  La 
Guerra,  18  Cal.  67. 

24.  Trustee  and  beneficiary.  Where  a  party 
holds  the  legal  title  of  land  as  security  for 
money  due  him  by  one  having  the  equitable  es- 
tate, he  cannot,  by  reason  of  the  statute  of  limi- 
tations, be  compelled  to  accept  the  money  and 
execute  a  conveyance  of  the  land  after  four  years 
from  the  time  the  money  falls  due;  yet,  if  he 
voluntarily  receives  the  money  when  tendered, 
after  that  time  he  is  not  discharged  by  the  stat- 
ute from  executing  the  conveyance  and  giving 
a  deed  to  the  beneficiary.  Millard  v.  Hathaway, 
27  Cal.  120. 

25.  Trustee  and  beneficiary.  The  statute  does 
not  run  in  favor  of  a  trustee  as  against  the  bene- 
ficiary while  the  beneficiary  is  in  possession  of 
the  estate,  and  there  is  no  adverse  claim  made 
by  the  trustee.  Love  v.  Watkins,  40  Cal.  548; 
6"Am.  Rep.  624. 

26.  Vendor  and  vendee.  The  statute  does  not 
run  asainst  a  vendee's  right  to  enforce  a  specific 
performance  (execution  of  a  deed,  etc.),  so  long 
as  he  remains  in  possession  with  the  acquiescence 
of  the  vendor.  Love  v.  Watkins,  40  Cal.  548; 
6    Am.   Reo.    624. 

27.  Equitable  and  legal  actions  alike  barred. 
The  statute  of  limitations  is  applicable  alike  to 
all  causes  of  actions,  whether  in  equity  or  at  law. 
Boyd  V.  Blankman,  29  Cal.  19;   87  Am.  Dec.   146. 

28.  Cases  excepted  from  statute  of  limitations. 
It  was  held  "that  statutes  of  limitation  are  to  be 
strictly  construed."  In  Demarest  v.  Wynkoop,  3 
Johns.  Ch.  146.  8  Am.  Dec.  467,  it  was  held  that 
the  court  could  make  no  exception  in  favor  of 
infants,  where  the  statute  had  made  none.  Said 
Mr.  Chancellor  Kent  (p.  142):  "The  doctrine  of 
inherent  equity  creating  an  exception  as  to  any 
disability,  where  the  statute  of  limitations  creates 
none,  has  been  long  and  uniformly  exploded. 
General  words  in  the  statute  must  receive  a  gen- 
eral construction;  and  if  there  be  no  express  ex- 
ception, the  court  can  create  none."  It  was 
agreed,  without  contradiction,  in  Stowell  v.  Zouch, 
Piowd.  369b.  371c,  that  the  general  provision  in 
statute  of  fines  would  have  barred  infants,  ferae 
coverts,  and  the  other  persons  named  in  the  pro- 
viso, equally  with  persons  under  no  disability  if 
they  had  not  been  named  in  the  exception  or 
saving  clause.  So  in  Dupleix  v.  De  Roven.  2 
Vern.  540.  The  lord  keeper  thought  it  very  rea- 
sonable that  the  statute  of  limitations  should  not 


run   when   the   debtor  was   beyond   the   sea;    but" 

there  was  no  saving  in  the  case.  He  could  not 
resist  the  plea  of  the  statute.  See  also  Beck- 
ford  v.  W^ade,  17  Ves.  Jr.  87;  Buckinghamshire  v. 
Drury,  Wilmot's  Opinions,  p.  177,  §194;  Halt 
V.  Wybourn.  2  Salk.  420;  Aubry  v.  Fortescue,  10 
Mod.  206,  where  it  was  held  that  "though  the- 
courts  of  justice  be  shut  by  civil  war,  so  that  no 
original  could  be  sued  out,  yet  the  statute  of  limi- 
tations continued  to  run."  Tynan  v.  Walker,  35 
Cal.   640;   95  Am.  Dec.   152. 

29.  Mortgages.  Mortgage  barred  when  note  ir- 
barred.  "Vi'here  an  action  upon  a  note,  secured 
by  a  mortgage,  is  barred  by  the  statute  of  limita- 
tions, the  mortgagee  has  no  remedy  upon  the 
mortgage  ;  and  though  he  can  follow  distinct  reme- 
dies upon  the  note  or  mortgage,  the  limitatioit 
prescribed  is.  in  both  cases,  the  same.  The  stat- 
ute of  limitations  of  this  state  differs  essentially 
from  the  statutes  of  James  I,  and  from  the  stat- 
utes of  limitation  in  force  in  most  of  the  other 
states.  Those  statutes  apply  in  their  terms  only 
to  particular  legal  remedies,  and  courts  of  equity 
hold  themselves  not  bound  by  them,  except  in 
cases  of  concurrent  jurisdiction,  but  act  merely 
by  analogy  to  them.  Those  statutes,  as  a  gen- 
eral thing,  also  apply,  so  far  as  actions  upon 
written  contracts  not  of  record  are  concerned,, 
only  to  actions  upon  simple  contracts;  that  is, 
contracts  not  under  seal,  fixing  the  limitation  at 
six  years,  and  leaving  actions  upon  snecialties  to 
be  met  by  the  presumption  established  by  the 
rule  of  the  common  law,  that  after  the  lapse  of 
twenty  years  the  claim  has  been  satisfied.  In 
those  statutes  where  specialties  are  mentioned, 
the  limitation  is  generally  fixed  at  either  fifteen 
or  twenty  years.  The  case  is  entirely  different 
in  this  state.  Here  the  statute  applies  equally 
to  actions  at  law  and  to  suits  in  equity.  It  is 
directed  to  the  subject-matter,  and  not  to  the 
form  of  the  action,  or  the  forum  in  which  the  ac- 
tion is  prosecuted.  Nor  is  there  any  distinctioa 
in  the  limitation  prescribed  between  simple  con- 
tracts in  writing  and  specialties.  Where  a  note 
is  secured  by  mortgage  upon  real  property,  and 
subsequently,  after  the  remedy  on  the  note  is- 
barred  by  the  statute,  the  mortgagor  executes  s 
second  mortgage  to  a  third  party,  such  third 
party  can  interpose  the  plea  of  the  statute  of 
limitations  in  a  suit  to  foreclose  the  first  mort- 
gage, and  thus  secure  priority  for  his  subsequent 
mortgage;  and  this,  even  thotigh  the  mortgagor- 
had,  after  the  execution  of  the  second  mortgage, 
and  after  the  note  was  barred,  indorsed  on  the 
first  note  that  he  renewed,  revived,  and  agreed  to 
pay  the  same.  A  mortgagor,  after  disposing  of 
the  mortgaged  premises  by  deed  of  sale,  loses  all 
control  over  them.  His  personal  liability  thereby 
becomes  separated  from  the  ownership  of  the 
land,  and  he  can,  by  no  subsequent  act,  create 
or  revive  charges  upon  the  premises.  He  is,  as- 
to  the  premises,  henceforth  a  mere  stranger. 
And  if,  instead  of  selling  the  premises,  he  execute 
a  second  mortgage  upon  them,  he  is  equally 
without  power  to  destroy  or  impair  the  eificacy 
of  the  lien  thus  created.  As  a  general  rule,  the 
plea  of  the  statute  of  limitation*  is  a  personal 
privilege  of  the  party,  and  cannot  be  set  up  by 
a  stranger.  This  is  true  with  respect  to  personal 
obligations,  which  concern  only  the  party  him- 
self, or  with  respect  to  property  which  the  party 
possesses  the  power  to  charge  or  dispose  of.  But 
with  respect  to  property  placed  by  him  beyond 
his  control,  or  subjected  by  him  to  liens,  he  has 
no  such  personal  i)rivilege.  He  cannot,  at  his 
pleasure,  affect  the  interests  of  other  parties. 
Whether,  wh-ire  a  party  revives  a  note  secured  by 
mortgage  upon  real  estate,  after  the  note  is- 
barred,  he  thereby  revives  the  mortgage,  was  a 
question  raised,  but  not  decided."  See  syllabus 
in  Lord  v.  Morris,  18  Cal.  482,  483;  see  also 
McCarthv  v.  White,  21  Cal.  495;  82  Am.  Dec. 
754;  Heinlin  v.  Castro,  22  Cal.  100;  Coster  t.. 
Brown.  23  Cal.  142;  Cunningham  v.  Hawkins, 
24  Cal.  403:  85  .'^.m.  Dec.  73;  Wormouth  v. 
Hatch,  33  Cal.  121:  Arrington  v.  Liscom,  34. 
Cal.  365;  94  Am.  Dec.  722;  see  particularly 
Grattan  v.  Wiggins,  23  Cal.  16;  Lent  v.  Shear. 
26  Cal.  361;  Le  Roy  v.  Rogers,  30  Cal.  229:  89^ 
Am.   Dec.    88;    Espinosa   v.    Gregory,    40    Cal.    58,. 


159 


COMMENCEMENT  OF  CIVIL  ACTIONS. 


§312 


citing  Hughes  ▼.  Davis.  40  Cal.  117;  Siter  v. 
Jewett,  33  Cal.  92.  "Where  an  action  upon  a 
promissory  note,  secured  by  a  mortgage  of  the 
same  date,  upon  real  property,  is  barred  by  our 
statute  of  limitations,  the  remedy  upon  the  mort- 
gage is  also  barred."  McCarthy  v.  White,  21  Cal. 
495,  82  Am.  Dec.  754,  affirming  Lord  v.  Morris, 
18  Cal.  482. 

30.  Mortg?ge.  A  person  who  purchases  prop- 
erty from  a  mortgagor,  subspi-fuent  to  the  execu- 
tion of  a  mortgage,  may  plead  the  statute  of  limi- 
tations in  an  action  to  foreclose  the  mortgage, 
commenced  after  the  statute  has  run  against  the 
debt  secured  bv  such  mortgage.  McCarthy  v. 
White,  21  Cal.  495;   82  Am.  Dec.  754. 

31.  Renewal  of  note  extends  lien  of  mortgage. 
A  renewal  of  a  note  extends  the  lien  of  the  mort- 
gage given  to  secure  the  note,  so  that  the  statute 
of  limitations  will  not  run  until  the  expiration  of 
the  new  note  given.  See  Lent  v.  Morrill,  25  Cal. 
492.  And  this  renewal  extends  the  mortgage, 
even   against  innocent  purchasers.      Id. 

32.  Joint  mortgage  debtors.  One  being  absent 
from  state.  Three  persons  executed  a  .ioiiit  mort- 
gage to  secure  their  joint  and  several  nfites.  One 
of  the  makers  left  the  state.  The  note  became 
outlaived  as  to  the  two  makers  living  in  the  state. 
Held:  the  lien  of  the  mortgage  was  barred  as 
to  the  two  in  the  state,  and  it  can  only  be  en- 
forced against  the  interest  of  the  one  as  to  whom 
the  note  is  not  barred.  Low  v.  Allen,  26  Cal. 
141. 

33.  Mortgage  not  always  barred  when  debt  for 
which  it  is  given  is  barred.  A  mortgage  given 
to  secure  the  payment  of  a  debt  not  in  writing  is 
a  contract  "founded  upon  an  instrument  in  writ- 
ing," within  the  meaning  of  the  statute  of  limita- 
tions, and  an  action  for  its  foreclosure  may  be 
maintained  at  any  time  within  four  years  from  its 
breach,  notwithstanding  that  the  statute  has  in 
the  mean  time  barred  the  original  debt.  Union 
Water  Co.  v.  Murphy's  Flat  Fluming  Co.,  22  Cal. 
620. 

34.  Right  to  redeem.  Where  the  assignee  of 
one  note  (see  facts  of  case),  having  the  first 
right  to  the  benefit  of  the  mortgage,  forecloses, 
and  the  property  is  sold,  such  foreclosure  and 
sale  extinguish  the  mortgage.  The  holders  of  the 
other  notes  secured  by  the  mortgage  have  a  right 
to  redeem,  but  when  not  made  parties  to  the  ac- 
tion, they  must  assert  this  right  within  four 
years,  or  be  barred  by  the  statute  of  limitations. 
The  right  to  foreclose  and  the  right  to  redeem 
are  reciprocal,  and  the  statute  begins  to  run 
against  the  redemption  at  the  time  the  right  of 
action  accrues  on  the  mortgage.  Grattan  v.  W^ig- 
gins,  23  Cal.  16;  and  see  further,  as  to  right  to 
redeem,  De  Espinosa  v.  Gregory.  40  Cal.  58;  Siter 
V.   Jewett,    33   Cal.    92;    Cunningham   v.   Hawkins, 

24  Cal.  403;  85  Am.  Dec.  73:  Arrington  v.  Lis- 
com,  34  Cal.  365;  94  Am.  Dec.  722. 

35.  Plesding.  Pleaiing  of  the  statute  of  limi- 
tations. See  Smith  v.  Richmond,  19  Cal.  476: 
Lick  V.  Diaz,  30  Cal.  75.  The  defense  of  the 
statute  of  limitations  is  a  personal  privilege  of 
the  debtor,  which  he  may  assert  or  waive  at  his 
option,  but  it  must  be  set  up  in  some  form,  either 
by  demurrer  or  answer,  or  it  will  be  deemed  to 
have  been  waived.  Grattan  v.  Wiggins,  23  Cal. 
16.  It  must  be  pleaded  in  the  first  instance,  and 
has  no  day  of  grace  thereafter.  See  Cooke  v. 
Spears,  2  Cal.  409;  56  Am.  Dec.  348. 

36.  Statute,  how  pleaded  by  demurrer.  A  de- 
fense under  the  statute  of  limitations  cannot  be 
made  by  a  demurrer  which  states  in  general  terms 
that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  The  statute,  in 
order  to  be  available  as  a  defense,  must  be  dis- 
tinctly stated  in  the  demurrer.    Brown  v.  Martin, 

25  Cal.  82:  affirmed  in  Farwell  v.  Jackson,  28 
Cal.  106;  Smith  v.  Richmond.  19  Cal.  476. 

S7.  Eight  to  use  water  by  adverse  use.  See 
American  Company  v.  Bradford,  27  Cal.  360. 

38.  Averment  that  cause  of  action  accrued  more 
than  two  years  prior,  etc.  In  an  action  for  the 
Tslue  of  services  rendered,  a  plea  which  does  not 
aver  that  the  cause  of  action  accrued  more  than 
two  years  before  the  commencement  of  the  ac- 
tion, but  only  that  the  services  conlricted  to  he 
rendered  by  the  plaintiff  were  rendered   more  than 


two  years  before  action  brought,  is  insufficient 
as  a  plea  of  the  statute  of  limitations.  Hartson 
V.  Hardin,  40  Cal.  264. 

39.  Pleading  adverse  possession.  A  plea  of  the 
statute  of  limitations,  which  states  that  the  plain- 
tiff was  not  seised  of  the  land  within  five  years 
before  the  commencement  of  the  action,  is  fatally 
defective  in  not  averring  that  neither  the  plain- 
tiff's predecessor  or  grantor  was  possessed  within 
that  time,  and  also  because  no  adverse  possession 
by  the  defendant  is  alleged  for  any  time  anterior 
to  the  action.    Sharp  v.  Daughney,  33  Cal.  505. 

40.  Allegation  of  adverse  possession,  etc.  The 
statute  is  not  well  pleaded  in  an  answer  which 
states  that  "if  plaintiffs  ever  had  any  right  or 
title  to  their  claims,  or  to  any  portion  thereof, 
they  are  barred  by  the  statute  of  limitations,  as 
the  defendants  have  been  in  the  quiet  and  peace 
able  possession  of  the  same,  adversely  to  the 
plaintiffs,  for  a  period  of  over  five  years."  The 
averment  that  the  plaintiff  is  "barred  by  the  stat- 
ute of  limitations"  is  merely  a  conclusion  of  law. 
It  docs  not  present  any  issuable  fact.  Schroeder 
V.  Jahns,  27  Cal.  274;  Caulfield  v.  Sanders,  17 
Cal.  569.  The  "period  of  over  five  years,"  dur- 
ing which  it  is  alleged  that  defendants  were  in 
adverse  possession,  is  not  charged  as  having  pre- 
ceded the  commencement  of  the  action.  Table 
Mountain  Tunnel  Co.  v.  Stranahan,  31  Cal.  387. 

41.  Adverse  possession  by  tenant  in  common, 
allegation  of.  A  person  depending  upon  an  ad- 
verse possession,  of  a  sufficient  time,  of  land, 
owned  by  himself  and  the  adverse  party  as  ten- 
ants in  common,  must  plead  facts  from  which  it 
will  affirmatively  appear  that  his  possession  was 
of  an  adverse  and  hostile  character;  otherwise 
his  possession  of  land  will  be  deemed  to  be  ac- 
cording to  his  right,  and  in  support  of  the  title 
in  common.  Lick  v.  Diaz,  30  Cal.  65.  See  fur- 
ther, as  to  adverse  possession,  Le  Roy  v.  Rogers, 
30  Cal.  229;  89  Am.  Dec.  88. 

42.  Allegations  of  facts,  not  of  law,  required. 
A  party  relying  on  the  statute  of  limitations 
should  not  allege  matter  of  law,  but  the  facts 
which  bring  it  within  the  statute.  Boyd  v.  Blank- 
man,  29  Cal.  44:  87  Am.  Dec.  146. 

43.  Averment  of  five  years  covers  any  less 
term.  An  answer  averring  that  the  cattse  of  ac- 
tion had  not  accrued  within  five  years  is  suffi- 
cient for  five  years,  and  for  any  period  of  limi- 
tation less  than  five  rears.  Boyd  v.  Blankman,  29 
Cal.  44:  87  Am.  Dec.  146. 

44.  Items  of  account.  Where  the  complaint 
states  a  cause  of  action  for  goods  sold  and  de- 
livered, and  a  bill  of  items  is  annexed  to  the 
same  as  an  exhibit,  with  the  date  of  each  item, 
an  answer  which  refers  to  the  exhibit,  and  avers 
that  the  last  item,  only,  is  within  two  years  pre- 
vious to  the  commencement  of  the  action,  and 
that,  except  as  to  the  last  item,  "no  right  has 
accrued  to  said  plaintiff  by  reason  of  the  matter 
mentioned  and  set  forth  in  said  complaint  at  any 
time  within  two  years  next  preceding  this  ac- 
tion," is  a  good  answer  of  the  statute  of  limita- 
tions to  all  the  items,  except  the  last.  The  words 
"preceding  the  commencement  of  this  action,"  in 
such  answer,  are  equivalent  to  the  words  "preced- 
ing the  filing  of  the  complaint."  Adams  v.  Pat- 
terson, 35  Cal.  122. 

45.  Assumpsit,  A  count  in  a  complaint  in  the 
old  form  of  assumpsit,  for  money  had  and  re- 
ceived, in  which  the  promise  is  laid  of  a  day  more 
than  two  years  prior  to  the  commencement  of 
the  action,  is  demurrable,  on  the  ground  that  it 
shows  the  demand  to  be  barred  by  the  statute  of 
limitations.  Keller  v.  Hicks,  22  Cal.  457;  83  Am. 
Dec.  78. 

46.  Pleading  by  demurrer.  On  demurrer  to  a 
complaint  founded  upon  the  statute  of  limitations, 
if  the  complaint  fails  to  show  whether  the  con- 
tract in  suit  was  verbal  or  in  writing,  it  will  be 
presumed  to  have  been  in  writing,  for  all  the  pur- 
poses of  the  demurrer.  Miles  v.  Thorne,  38  Cal. 
335:  99  Am.  Dec.  384. 

47.  Pleading  by  demurrer.  The  defense  of  the 
statute  of  limitations  may  be  presented  by  de- 
murrer when  it  appears  from  the  complaint  that 
the  period  of  limitation  has  elapsed  since  the 
cause  of  action  accrued  to  the  plaintiff,  and  no 
facts    are    alleged   taking   the    demand    out   of    the 


§  315   TIME  OF  COMMENCING  ACTIONS  FOR  RECOVERY  OF  REAL  PROPERTY.   160 


operation  of  the  statute.  Mason  ▼.  Cronise,  20 
Cal.  211,  affirming  Smith  v.  Richmond,  19  Cal. 
476,  and  Barringer  v.  Warden,  12  Cal.  311.  But 
the  bar  of  the  statute  must  clearly  appear  on  the 
face  of  complaint.  Ord  v.  De  La  Guerra,  18  Cal. 
68. 

48.  By  answer.  But  where  the  demand  is  in 
truth  barred,  but  the  fact  does  not  appear  upon 
the  face  of  the  complaint,  the  defense  of  the  stat- 
ute must  be  made  by  answer.  Smith  v.  Rich- 
mond, 19  Cal.  476. 

49.  New  promise.  A  complaint  upon  a  note 
barred  by  the  statute  is  sufficient,  if  it  alleges 
that  the  defendant  has  within  four  years  of  the 
day  when  the  suit  was  commenced,  "in  writing, 
acknowledged  and  promised  to  pay  the  note." 
Such  allegation  imports  that  the  defendant  signed 
the  writing.  Porter  v.  Elam,  25  Cal.  291;  85  Am. 
Dec.  132.  The  defendant's  signature  to  the  new 
promise  was  necessary,  and  the  new  promise  must 
be  in  writing.  Pena  v.  Vance,  21  Cal.  142.  See 
also,  on  this  point,  Barringer  v.  Warden,  12  Cal. 
811. 

50.  New  promise.  It  is  sufficient,  where  the 
complaint  alleged  an  express  promise  to  pay  a 
debt  which  was  barred  by  the  statute,   to  prove 


an  acknowledgment  of  the  debt'  from  which  a 
promise  to  pay  is  implied.  See  further  facts  con- 
cerning burden  of  proof,  etc,  Farrell  v.  Palmer, 
36  Cal.  187. 

51.  New  promise.  Where  a  creditor  sues  after 
the  statute  has  run  upon  the  original  contract, 
his  cause  of  action  is  not  the  original  contract, 
for  his  action  thereupon  is  barred,  but  it  is  the 
new  promise,  the  moral  obligation  arising  from 
the  original  contract  binding  in  foro  conscientiae, 
notwithstanding  the  bar  of  the  statute  being  the 
consideration  for  the  new  promise.  For  authori- 
ties upon  new  promise,  see  Angell  on  Limitations, 
pp.  218  et  seq.  And  the  action  must  be  brought 
on  the  new  promise  within  four  years.  See  Mc- 
Cormick  v.  Brown,  36  Cal.  184;  95  Am.  Dec.  170, 
and  authorities  therein  cited.  See  further,  as  to 
new  promise,  Smith  v.  Richmond,  19  Cal.  476. 

52.  Pleading  new  promise.  For  payment  of 
debt  outlawed,  etc.  See  Smith  v.  Richmond,  19 
Cal.  476. 

53.  Ejectment.  In  ejectment,  a  plea  of  the 
statute  of  limitations  of  two  years,  under  the  set- 
tler's act  is  no  defense.  Anderson  y.  Fisk,  33 
Cal.  625. 


CHAPTER  II. 
TIME  OF  COMMENCING  ACTIONS  FOB  EECOVERY  OF  EEAL  PROPERTY. 


§315.     When  the  people  will  not  sue.  §322. 

§  316.     When  action  cannot  be  brought  by  grantee 

from  the  state.  §  323. 

§  317.     When  actions  by  the  people  or  their  gran- 
tees are  to  be  brought  within  five  years.         §  324. 
§  318.     Seisin   within   five   years,   when   necessary 

in  action  for  real  property.  §  325. 

§  319.     Such   seisin,   when  necessary   in   action   or 

defense  arising  out  of  title  to  or  rents         §  326. 

of  real  property. 
§  320.     Entry  on  real  estate.  §  327. 

§  321.     Possession,    when   presumed.      Occupation 

deemed    under    legal    title,    unless    ad-         §  328. 

verse. 


Occupation  under  written  instrument  or 
judgment,   when  deemed  adverse. 

What  constitutes  adverse  possession  un- 
der written  instrument  or  judgment. 

Premises  actually  occupied  under  claim 
of  title  deemed  to  be  held  adversely. 

What  constitutes  adverse  possession  un- 
der claim  of  title  not  written. 

Relation  of  landlord  and  tenant  as  affect- 
ing adverse  possession. 

Right  of  possession  not  affected  by  descent 
cast. 

Certain  disabilities  excluded  from  time  to 
commence   actions. 


§  315.  When  the  people  v^dll  not  sue.  The  people  of  this  state  Avill  not 
sue  any  person  for  or  in  respect  to  any  real  property,  or  the  issues  or  profits 
thereof,  by  reason  of  the  right  or  title  of  the  people  to  the  same,  unless — 

1.  Such  right  or  title  shall  have  accrued  within  ten  years  before  any  action 
or  other  proceeding  for  the  same  is  commenced ;  or, 

2.  The  people,  or  those  from  whom  they  claim,  shall  have  received  the 
rents  and  profits  of  such  real  property,  or  of  some  part  thereof,  within  the 
space  of  ten  years. 


Title  by  occupancy.    Civ.  Code,  §  1007. 

Legislation  §  315.  Enacted  March  11,  1873; 
based  on  Stats.  1850,  p.  343. 

Statute  of  limitations  not  applicalale  as 
against  the  state.  The  state  is  not  bound 
by  its  statute  of  limitations,  except  by  ex- 
press words  or  by  necessary  implication 
(Wilhoit  V.  Tubbs,  83  Cal.  279;  23  Pac. 
386;  Russ  v.  Crichton,  117  Cal.  695;  49  Pac. 
1043) ;  nor  is  the  statute  applicable  to  prop- 
erty held  in  trust  by  a  state  institution  or 
a  public  agency  for  a  public  use  (Sixth  Dis- 
trict Agricultural  Ass'n  v.  Wright,  154  Cal. 
119;  97  Pac.  144);  neither  is  the  Federal 
government  bound  by  the  state  statute  of 
limitations.  Mathews  V.  Ferrea,  45  Cal.  51; 
Doran  v.  Central  Pacific  R.  R.  Co.,  24  Cal. 
245;  Gardiner  v.  Miller,  47  Cal.  570;  Jatunn 
V.  Smith,  95  Cal.  154;  30  Pac.  200. 


Accrual  of  title  -within  ten  years.  This 
section  is  construed  to  mean,  that  the  people 
of  the  state  will  not  sue  "for  or  in  respect 
to  real  property,"  except  where  the  cause 
of  action  has  accrued  within  ten  vears. 
People  V.  Center,  66  Cal.  551;  5  Pac!!  263; 
6  Pac.  481. 

With  respect  to  real  property.  The  state 
may  maintain  an  action  with  respect  to  real 
property  at  any  time  within  ten  years;  but 
no  cause  of  action  can  be  brought  to  re- 
cover possession  until  the  state  has  been 
deprived  of  possession.  People  v.  Center, 
66  Cal.  551;  5  Pac.  263;  6  Pac.  481.  The 
state  can  never  be  disseised  of  its  lands 
by  the  adverse  occupancy  of  another  (Wil- 
hoit v.  Tubbs,  83  Cal.  279;  23  Pac.  3S6); 
and  no  title  by  adverse  possession  can  be 
acquired,  as  against  the  state,  to  lands  held 


161      WHEN  ACTION  CANNOT  BE  BROUGHT  BY  GRANTEE  FROM  STATE.       §§  316-318 


in  trust  by  it  for  the  people,  unless  there 
has  been  an  abandonment  of  such  public 
use  by  competent  authority.  People  v. 
Kerber,  152  Cal.  731;  125  Am.  St.  Rep.  93; 
93  Pac.  878.  As  against  the  public,  no  one 
can  acquire,  by  adverse  occupancy,  the 
right  to  obstruct  a  street  dedicated  to  pub- 
lic use,  and  thus  prevent  its  use  as  a  high- 
way. Hoadley  v.  San  Francisco,  50  Cal. 
265;  People  v.  Pope,  53  Cal.  437.  The  title 
to  tide-lands  cannot  properly  be  said  to 
have  "accrued"  to  the  state,  in  the  sense 
in  which  that  term  is  employed  in  this  sec- 
tion (Parish  V.  Coon,  40  Cal.  33);  and  it  is 
doubtful  whether  this  section  is  applicable 
at  all  to  suits  to  recover  possession  of  such 
tide-lands.  People  v.  Kerber,  152  Cal.  731, 
738;  125  Am.  St.  Rep.  93;  93  Pac.  878.     A 

§  316.  When  action  cannot  be  brought  by  grantee  from  the  state.  No 
action  can  be  brought  for  or  in  respect  to  real  property  by  any  person  claim- 
ing under  letters  patent  or  grants  from  this  state,  unless  the  same  might 
have  been  commenced  by  the  people  as  herein  specified,  in  case  such  patent 
had  not  been  issued  or  grant  made. 


suit  by  the  attorney-general,  in  behalf  of 
the  people,  for  the  recovery  of  state  lands, 
may  be  maintained  without  express  statu- 
tory authority.  People  v.  Stratton,  25  Cal. 
242;  People  v.  Center,  66  Cal.  551;  5  Pac. 
263;  6  Pac.  481.  This  section  has  no  ap- 
plication to  an  action  by  an  individual 
holding  under  a  state  patent.  Wilhoit  v. 
Tubbs,  S3  Cal.  279;  23  Pac  286. 

Statute  must  be  pleaded.  The  bar  of 
the  statute  must  be  specifically  pleaded,  to 
be  availed  of.  Osment  v.  McElrath,  68  Cal. 
466;  58  Am.  Rep.  17;  9  Pac.  731;  Wilhoit 
v.  Tubbs,  83  Cal.  279;  23  Pac.  386;  Dougall 
V.  Schulenberg,  101  Cal.  154;  35  Pac.  635. 

CODE  COMlVnSSIONERS'  NOTE.  Stats.  1850, 
p.  343.  See  Farish  v.  Coou,  40  Cal.  33;  Hall  v. 
Bowling,  18  Cal.  619. 


priated  before  the  grant,  or  from  the  date 
of  the  appropriation  if  it  was  made  after 
the  grant,  and  not  from  the  date  of  the  is- 
suance of  the  patent  to  the  land.  Jatunn 
V.  Smith,  95  Cal.  154;  30  Pac.  200;  and  see 
Fremont  v.  Seals,  18  Cal.  433;  Gardiner  v. 
Miller,  47  Cal.  570;  Nessler  v.  Bigelow,  60 
Cal.  98, 


CODE  COMMISSIONERS'  NOTE, 
p.  343. 


Stats.  1850, 


Legislation  8  316.  Enacted  March  11,  1873; 
based  on  Stats.   1850,   p.   343. 

Persons  claiming  from  state.  An  indi- 
vidnal,  claiming  under  a  patent  from  the 
state,  can  maintain  his  action  to  recover 
the  property,  or  the  mesne  profits  thereof, 
at  any  time  within  the  five  years  prescribed 
by  the  statute.  Wilhoit  v.  Tubbs,  83  Cal. 
279;  23  Pac.  386.  In  an  action  involving 
the  use  of  water,  the  statute  runs  from  the 
date  of  the  grant  if  the  water  was  appro- 

§  317.  When  actions  by  the  people  or  their  grantees  are  to  be  brought 
within  five  years.  When  letters  patent  or  grants  of  real  property  issued  or 
made  by  the  people  of  this  state,  are  declared  void  by  the  determination  of 
a  competent  court,  an  action  for  the  recovery  of  the  property  so  conveyed 
may  be  brought,  either  by  the  people  of  the  state,  or  by  any  subsequent 
patentee  or  grantee  of  the  property,  his  heirs  or  assigns,  within  five  years 
after  such  determination,  but  not  after  that  period. 


Legislation  §  317.  1.  Enacted  March  11,  1873  ; 
■based  on  Stats.  1850,  p.  343. 

3.  Amended  by  Code  Amdts.  1873-74,  p. 
291,  (1)  omitting,  after  "competent  court,"  the 
•clause,  "rendered  upon  an  allegation  of  a  fraudu- 
lent suggestion,  or  concealment,  or  forfeiture,  or 
mistake,  or  ignorance  of  a  material  fact,  or 
wrongful  detaining,  or  defective  title,  in  such 
ease";    (2)   changing  the  word  "the"  from  "this," 


in  the  words  "people  of  the  stat%" ;  and  (3) 
omitting  the  word  "same"  before  "property,"  in 
the   words   "grantee  of  the  property." 

Acquisition    of    title    by    prescription    against 
public.    See  note  26  L.  R.  A.  451. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1850, 

p.  343. 


§  318.  Seisin  within  five  years,  when  necessary  in  action  for  real  prop- 
erty. No  action  for  the  recoverj^  of  real  property,  or  for  the  recovery  of 
the  possession  thereof,  can  be  maintained,  unless  it  appear  that  the  plaintiff, 
his  ancestor,  predecessor,  or  grantor,  was  seised  or  possessed  of  the  property 
in  question,  within  five  years  before  the  commencement  of  the  action. 

Legislation  §  318.  Enacted  March  11,  1878; 
based   on  Stats.   1863,   p.    325. 

Application  of  section.  This  section  ap- 
plies to  an  action  to  set  aside  a  convey- 
ance as  obtained  by  fraud  and  undue  influ- 
ence,   and   to    recover   an   interest   in   the 


Adverse  possession.    Post,  §§321  et  seq. 

Trespass   upon  real  property,   action  for,   must 
be  brought  within  three  years.    Post,  §  338. 

Possession,  presumptive  evidence  of  ownership. 
See  post,  §  1963,   subd.    11. 

Action    includes    special    proceeding    of    civil 
aiature.    Post,  §  363. 
1  Fair. — 11 


§  318   TIME  OF  COMMENCING  ACTIONS  FOE  RECOVERY  OF  REAL  PROPERTY.   162 


property  (Murphy  v.  Crowley,  140  Cal.  141; 
73  Pac.  820,  reversing  Murphy  v.  Crowley, 
7  Cal.  Unrep.  49;  70  Pac.  1024;  Page  v. 
Garver,  146  Cal.  577;  80  Pac.  860);  and  is 
to  be  construed  with  §  338,  post;  and  must 
govern,  where,  though  the  principal  ground 
for  relief  is  on  account  of  fraud,  still,  in 
the  action,  the  party  seeks  the  recovery  of 
real  property  on  the  ground  of  such  fraud. 
Unkel  V.  Robinson,  163  Cal.  648;  126  Pac. 
485.  An  action  to  establish  involuntary 
and  resulting  trusts  in  land,  to  enforce  a 
conveyance  of  the  legal  title,  and  to  re- 
cover the  possession  thereof,  is  subject 
wholly  to  this  section,  and  not  to  §  343, 
post.  Bradley  v.  Bradley,  20  Cal.  App.  1; 
127  Pac.  1044. 

Recovery  of  real  property,  or  possession. 
An  action  to  acquire  title  to  a  right  of  way 
is  within  this  section  (Schmidt  v.  Klotz, 
130  Cal.  223;  62  Pac.  470);  as  is  also  an 
action  to  compel  a  conveyance  of  land  and 
correct  a  mistake  in  the  deeds  (Goodnow 
V.  Parker,  112  Cal.  437;  44  Pac.  738;  Union 
lee  Co.  V.  Doyle,  6  Cal.  App.  284;  92  Pac. 
112) ;  and  an  action  to  recover  real  prop- 
erty' and  cancel  a  deed  (Daniels  v.  Dean, 
2  Cal.  App.  421;  84  Pac.  332),  and  an  action 
to  cancel  a  patent  by  the  United  States 
(Curtner  v.  United  States,  149  U.  S.  662; 
37  L.  Ed.  890;  13  Sup.  Ct.  Eep.  985);  and 
an  action  to  determine  title  to  water,  even 
where  the  defense  pleaded  is  fraud  and 
mistake,  whereby  the  legal  title  was  ob-1 
tained,  is  also  within  this  section  (South 
Tule  etc.  Ditch  Co.  v.  King,  144  Cal.  455;  77 
Pac.  1032);  as  is  also  an  action  to  be  let 
into  possession  as  tenant  in  common  to 
land,  possession  of  which  was  obtained 
from  an  ancestor  bv  undue  influence  (Mur- 
phy v.  Crowley,  140  Cal.  141;  73  Pac.  820); 
but  not  an  action  which  does  not  seek  to 
recover  real  property,  but  merely  to  reform 
a  deed  upon  the  ground  of  mutual  mistake. 
Hart  V.  Walton,  9  Cal.  App.  502;  99  Pac, 
719.  In  an  action  to  quiet  title  under  the 
so-called  McEnerney  Act,  proof  of  the 
actual  possession  by  the  plaintiff  of  the 
land  in  question  at  the  time  the  action  was 
commenced  and  when  the  affidavit  accom- 
panying it  was  made,  is  necessary  to  the 
rendition  of  a  judgment  for  the  plaintiff. 
Vanderbilt  v.  All  Persons,  163  Cal.  507; 
126  Pac.  158. 

Possession  required  of  one  who  invokes 
McEnerney  Act.    See  note  post,  §  323. 

Possession  by  one  tenant  in  common.  As 
between  tenants  in  common,  the  possession 
of  one  is  the  possession  of  all;  in  order  to 
set  the  statute  running  in  favor  of  one  ten- 
ant against  his  co-tenant,  it  is  necessary 
that  there  shall  be  an  adverse  possession 
(Watson  V.  Sutro,  86  Cal.  500;  24  Pac.  172; 
25  Pac.  64;  and  see  Love  v.  Watkins,  40 
Cal.  547;  6  Am.  Rep.  624;  Unger  v.  Mooney, 
63  Cal.  586;  49  Am.  Rep.  100);  and  where 
such  possession  is  adverse  for  the  required 
time,  it  will  operate  in  favor  of  a  tenant 


in  common  against  his  co-tenant  (Tully  v. 
Tully,  71  Cal.  338;  12  Pac.  246);  as  where 
they  hold  in  hostility  to  each  other  and  in 
severalty.  Casserly  v.  Alameda  County,  153 
Cal.  170;  94  Pac.  765;  Gregory  v.  Gregory, 
102  Cal.  50;  36  Pac.  364.  The  exercise  of 
unequivocal,  overt,  and  notorious  acts  of 
ownership,  by  a  tenant  in  common  in  pos- 
session, imparts  notice  that  disseisin  is  in- 
tended (Feliz  V.  Feliz,  105  Cal.  1;  38  Pac. 
521);  and  an  open  and  notorious  posses- 
sion, and  claim  of  ownership,  continued  for 
more  than  five  years,  constitutes  an  ouster 
of  co-tenants,  and  the  bar  of  the  statute 
intervenes  (Unger  v.  Mooney,  63  Cal.  586; 
49  Am.  Eep.  100;  Bath  v.  Valdez,  70  Cal. 
350;  11  Pac.  724;  Winterburn  v.  Chambers, 
91  Cal.  170;  27  Pac.  658);  but  where  the' 
possession  of  one  tenant  in  common  has  not 
been  disturbed  by  his  co-tenants,  and  there 
have  been  no  acts  of  exclusion  equivalent 
to  an  ouster,  the  statute  does  not  run  as 
against  his  right  or  title  (McCauley  v. 
Harvey,  49  Cal.  497);  in  other  words,  there 
must  be  a  repudiation  of  the  trust,  and  a 
notice  thereof  brought  home  to  the  eo- 
tenant,  before  any  adverse  possession  can 
arise.  Watson  v.  Sutro,  86  Cal.  500;  24  Pac. 
172;  25  Pac.  64.  The  question  of  whether 
a  person  entered  into  possession  claiming 
ownership  of  the  whole,  or  whether  he  ac- 
knowledged a  co-tenancy,  is  one  of  fact. 
iAlvarado  v.  Nordholt,  95  Cal.  116;  30  Pac. 
211.  A  valid  decree  in  partition  severs 
the  unity  of  possession,  and  is  conclusive 
as  to  all  rights  in  other  parts  of  the  land, 
irrespective  of  the  adverse  possession  by 
those  to  whom  they  were  allotted.  Rich- 
ardson v.  Loupe,  80  Cal.  490;  22  Pac.  227. 

Adverse  possession.  Adverse  possession 
is  merely  possession  hostile  as  against  a 
particular  claim,  to  which  it  is  opposed  in 
proof  (McManus  v.  O'Sullivan,  48  Cal.  7); 
but  it  is  of  the  very  essence  of  adverse 
possession,  that  the  holder  claim  the  right 
to  his  possession,  not  under,  but  in  opposi- 
tion to,  the  title  to  which  his  possession 
is  alleged  to  be  adverse.  Farish  v.  Coon, 
40  Cal.  33.  The  statute  does  not  begin 
to  run  against  a  remainderman  until  the 
termination  of  the  life  estate,  when  he  be- 
comes entitled  to  the  possession.  Pryor  v» 
Winter,  147  Cal.  554;  109  Am.  St.  Rep.  162; 
82  Pac.  202.  And,  although  complete  and 
exclusive,  it  must  also  continue  for  the  full 
period.  Baum  v.  Reay,  96  Cal.  462;  29  Pac. 
117;  31  Pac.  561;  Watts  v.  Gallagher,  97 
Cal.  47;  31  Pac.  626.  Adverse  possession 
does  not  ripen  into  title,  unless  it  is 
continued  uninterruptedly  for  five  years 
(Hayes  v.  Martin,  45  Cal.  559);  and,  to 
effect  a  bar,  the  possession  must  be  con- 
tinuous and  exclusive  for  the  full  period. 
Hagar  v.  Spect,  48  Cal.  406.  It  must  also 
be  actual  and  complete,  as  well  as  continu- 
ous. Kimball  v.  Stormer,  65  Cal.  116;  3 
Pac.  408;  Kockemann  v.  Bickel,  92  Cal. 
665;   28   Pac.  686;   Miller   v.   Bensinger,   3 


163 


SEISIN    WITHIN    FIVE  YEARS,   WHEN   NECESSARY    IN   ACTION. 


§318 


Cal.  Unrep.  704;  31  Pae.  -ITS.  The  pos- 
session of  a  part,  only,  will  not  prevent 
the  bar  of  the  statute  as  to  that  not  in 
possession.  Weed  v.  Snook,  144  Cal.  439; 
77  Pae.  1023.  Title  by  adverse  possession 
may  be  acquired,  though  commenced  under 
a  mistake.  Steckter  v.  Ewing,  6  Cal.  App. 
761;  93  Pae.  286. 

Adverse  possession  must  continue  for  five 
years.  The  occupation  of  land  adversely 
for  five  years  continuously,  without  inter- 
ruption, and  in  compliance  with  all  the  re- 
quirements of  the  law,  vests  absolute  title 
in  the  occupant,  as  much  as  any  written 
conveyance,  which  is  known  as  title  by 
prescription  (Simson  v.  Eckstein,  22  Cal. 
580;  Grattan  v.  Wiggins,  23  Cal.  16;  Le  Roy 
V.  Eogers,  30  Cal.  229;  89  Am.  Dec.  88; 
Arrington  v.  Liscom,  34  Cal.  365;  94  Am. 
Dec.  722;  Cannon  v.  Stockmon,  36  Cal. 
535;  95  Am.  Dec.  205;  San  Francisco  v. 
Fulde,  37  Cal.  349;  99  Am.  Dec.  278;  Mc- 
Manus  v.  O'Sullivan,  48  Cal.  7;  Morris  v. 
De  Celis,  51  Cal.  55;  Langford  v.  Poppe, 
56  Cal.  73;  Pacific  Mut.  Life  Ins.  Co.  v. 
Stroup,  63  Cal.  150;  Johnson  v.  Brown,  63 
Cal.  391;  Thomas  v.  England,  71  Cal.  456; 
12  Pae.  491);  and  is  sutficient  not  only  to 
bar  a  claimant  under  a  legal  title,  but  also 
to  create  a  title.  Owsley  v.  Matson,  156 
Cal.  401,  104  Pae.  983. 

When  possession  is  not  adverse.  The  pos- 
session of  an  administrator  is  the  posses- 
sion of  the  heir.  Spotts  v.  Hanley,  85  Cal. 
155;  24  Pae.  738;  Brenham  v.  Storey,  39 
Cal.  179.  In  case  of  a  trustee,  there  must 
be  an  open  and  unequivocal  repudiation  of 
the  trust  by  the  trustee,  and  actual  knowl- 
edge thereof  by  the  cestui  que  trust,  to  set 
the  statute  running  against  an  action  to 
enforce  the  trust  (Luco  v.  De  Toro,  91  Cal. 
405;  27  Pae.  1082;  Miles  v.  Thome,  38  Cal. 
335;  99  Am.  Dec.  384;  Love  v.  Watkins, 
40  Cal.  547;  6  Am.  Rep.  624;  Hearst  v. 
Pujol,  44  Cal.  230;  Hoffman  v.  Vallejo,  45 
Cal.  564;  Janes  v.  Throckmorton,  57  Cal. 
368),  as  the  possession  of  a  trustee  is  the 
possession  of  the  cestui  que  trust.  Love  v. 
Watkins,  40  Cal.  547;  6  Pae.  624.  The  pos- 
session of  one,  gained  by  a  partial  distribu- 
tion, while  the  estate  remains  unclosed,  is 
the  possession  of  all  the  distributees.  Es- 
tate of  Grider,  81  Cal.  571;  22  Pae.  908. 
A  party  holding  in  one  capacity  cannot 
claim  adversely  in  another.  Roman  Catholic 
Archbishop  v.  Shipman,  79  Cal.  288;  21 
Pae.  830.  The  conveyance  of  title  by  the 
party  in  possession  makes  him  the  tenant 
of  the  grantee  (Brooks  v.  Hyde,  37  Cal. 
366) ;  but  where  he  remains  in  adverse  pos- 
session for  a  period  of  five  years,  he  ac- 
quires a  title  as  against  his  grantee.  Dor- 
land  V.  Magilton,  47  Cal.  485.  An  adverse 
possession,  taken  after  a  deed,  and  held 
the  time  required  by  statute,  is  good  as 
against  the  grantee.  Franklin  v.  Dorland, 
28  Cal.  175;  87  Am.  Dec.  111.  As  between 
a  landlord  and  a  tenant  in  possession,  the 


statute  does  not  run  against  the  landlord 
in  favor  of  the  tenant  (Doolan  v.  Mc- 
Cauley,  66  Cal.  476;  6  Pae.  13U;  Oueto  v. 
Restano,  89  Cal.  63;  26  Pae.  788);  and  the 
same  rule  applies  to  a  subtenant.  Stand- 
ley  V.  Stephens,  66  Cal.  541;  6  Pae.  420; 
Millett  V.  Lagomarsino,  107  Cal.  102;  40 
Pae.  25.  This  is  under  the  general  rule, 
that  a  tenant  cannot  dispute  his  landlord's 
title.  Tewksbury  v.  Magraff,  33  Cal.  237; 
Willson  V,  Cleaveland,  30  Cal.  192.  As  be- 
tween a  mortgagee  in  possession  and  the 
mortgagor,  unless  there  has  been  some 
breach  of  condition  of  the  mortgage,  the 
possession  of  the  mortgagee  is  not  adverse 
to  the  mortgagor.  Husheon  v.  Husheou, 
71  Cal.  407;  12  Pae.  410;  Warder  v.  Enslen, 
73  Cal.  291;  14  Pae.  874.  The  same  rule 
applies  as  between  a  pledgee  and  the 
pledgor  (Cross  v.  Eureka  Lake  etc.  Canal 
Co.,  73  Cal.  302;  2  Am.  St.  Rep.  808;  14 
Pae.  885);  and  also  as  between  a  vendee 
and  the  vendor,  under  a  contract  of  pur- 
chase, unless  there  is  some  hostility,  mani- 
fested by  some  unequivocal  acts  brought 
to  the  knowledge  of  the  vendor  (Kerns  v. 
Dean,  77  Cal.  555;  19  Pae.  817);  but  a 
grantee's  entry  under  purchase  is  adverse 
to  the  grantor,  and  he  may  set  up  an  ad- 
verse title  from  an  independent  source. 
Robinson  v.  Thornton,  102  Cal.  675;  34  Pae. 
120.  When  the  grantor  remains  in  posses- 
sion after  a  sale,  or  subsequently  takes 
repossession,  and  holds  adversely  to  the 
grantee,  he  may  acquire  adverse  title. 
Franklin  v.  Dorland,  28  Cal.  175;  87  Am. 
Dec.  Ill;  Dorland  v.  Magilton,  47  Cal.  485; 
Lord  V.  Sawyer,  57  Cal.  65;  Garabaldi  v. 
Shattuck,  70  Cal.  511;  11  Pae.  778.  The 
statute  does  not  commence  to  run  against 
a  remainderman  until  the  death  of  the  ten- 
ant, as  he  is  not  entitled  to  possession  dur- 
ing the  life  of  the  tenant  (Pryor  v.  Winter, 
147  Cal.  554;  109  Am.  St.  Rep.  162;  82  Pae. 
202);  nor  against  an  infant  until  he  at- 
tains his  majority  (Burton  v.  Robinson,  51 
Cal.  186);  nor  does  it  run  as  against  the 
certificate  of  purchase  of  swamp  or  over- 
flowed lands,  but  commences  to  run  on  the 
date  of  the  issuance  of  the  patent  thereon. 
Manlv  V.  Hewlett,  55  Cal.  94;  Easton  v. 
O'Reillv,  63  Cal.  305;  Wilhoit  v.  Tubbs,  83 
Cal.  279;  23  Pae.  386;  Riverside  Land  etc. 
Co.  v.  Jansen,  66  Cal.  300;  5  Pae.  486; 
O'Connor  v.  Fogle,  63  Cal.  9;  Reed  v. 
Ybarra,  50  Cal.  465.  The  statute  com- 
mences to  run  against  a  purchaser  at  a 
sheriff's  sale  on  the  date  of  the  delivery 
of  the  sheriff's  deed.  Leonard  v.  Flvnn,  89 
Cal.  535;  23  Am.  St.  Rep.  500;  26  Pae.  1097. 
An  action  to  compel  the  conveyance  of 
property  is  not  barred,  so  long  as  the  pur- 
chaser is  in  possession  of  the  property 
agreed  to  be  conveved  (Scadden  Flat  Gold 
Mining  Co.  v.  Scadden,  121  Cal.  33;  53  Pae. 
440) ;  and  where  the  vendee  has  performed 
his  part  of  the  contract,  the  statute  does 
not  commence  to  run  against  his  right  to 


§  318   TIME  OF  COMMENCING  ACTIONS  FOB  RECOVERY  OF  REAL  PROPERTY.   164 


specific  performance,  so  long  as  he  remains 
in  possession  (Fleishman  v.  Woods,  135 
Cal.  256;  67  Pac.  276);  and  where  the  dis- 
tributee of  an  estate  has  held  the  same 
adversely  for  more  than  five  years,  and 
has  paid  all  taxes,  an  action  to  recover  the 
estate  is  barred.  Gavin  v.  Phillips,  12  Cal. 
App.  34;  106  Pac.  424. 

Possession  by  predecessor.  Under  this 
section,  the  grantee  may  tack  to  his  own 
possession  the  possession  of  his  grantor,  for 
the  purpose  of  working  out  a  bar  against 
the  holder  of  the  legal  title  (Franklin  v. 
Borland,  28  Cal.  175;  87  Am.  Dec.  Ill); 
but  where  the  predecessor  is  barred  by  the 
statute,  one  claiming  under  him  is  barred 
also.  Le  Eoy  v.  Rogers,  30  Cal.  229;  89 
Am.  Dec.  88.  An  heir  has  only  such  right 
as  the  ancestor  might  have.  Page  v.  Page, 
143  Cal.  602;  77  Pac.  452. 

Legal  title  not  aided  by  adverse  posses- 
sion. Possession  held  under  legal  title  can- 
not gain  anything  from  adverse  possession, 
Howell  v.  Slausen,  83  Cal.  539;  23  Pac.  692. 

Possession  under  permission.  No  pre- 
scriptive title  can  be  acquired,  where  occu- 
pancy of  the  land  is  under  permission  of 
the  owner  of  the  title.  Feliz  v.  Los  An- 
geles, 58  .Cal.  73;  Ball  v.  Kehl,  95  Cal.  606; 
30  Pac.  780;  Allen  v.  McKay,  139  Cal.  94; 
73  Pac.  713. 

No  adverse  possession  against  public. 
There  can  be  no  adverse  user,  against  the 
public  (Hoadley  v.  San  Francisco,  50  Cal. 
265;  People  v.  Pope,  53  Cal.  437;  Visalia 
V.  Jacob,  65  Cal.  434;  52  Am.  Rep.  303;  4 
Pac.  433;  San  Leandro  v.  Le  Breton,  72 
Cal.  170;  13  Pac.  405;  Hargro  v.  Hodgdon, 
89  Cal.  623;  26  Pac.  1106;  Orena  v.  Santa 
Barbara,  91  Cal.  621;  28  Pac.  268),  of  land 
dedicated  to  a  public  use  (San  Francisco 
V.  Bradbury,  92  Cal.  414;  28  Pac.  803;  Yolo 
County  V.  Barney,  79  Cal.  375;  12  Am.  St. 
Rep.  152;  21  Pac.  833;  Board  of  Education 
V.  Martin,  92  Cal.  209;  28  Pac.  799);  nor 
can  title  to  a  public  street  be  acquired  by 
adverse  user,  except  where  the  land  has 
ceased  to  be  a  public  street,  and  is  held 
hy  the  city  merely  as  a  proprietary  in- 
terest. Red  Bluff  v.  Walbridge,  15  Cal. 
App.  770;  116  Pac.  77.  This  section  ap- 
plies to  adverse  possession  of  squares  by  a 
town,  city,  and  county.  Casserly  v.  Ala- 
meda County,  153  Cal.  170;  94  Pac.  765. 

Payment  of  taxes.  Where  it  is  neces- 
sary to  pay  taxes  to  secure  a  good  title  by 
adverse  Y)Ossession,  such  title  is  defeated 
by  a  failure  to  pay  the  taxes  for  a  single 
year.  Allen  v.  McKay,  139  Cal.  94;  72  Pac. 
713.  There  is  no  adverse  possession,  under 
the  occupation  of  land,  where  the  occupier 
fails  to  pay  the  taxes.  O'Connor  v.  Fogle, 
63  Cal.  9;  Berniaud  v.  Beecher,  71  Cal.  38; 
11  Pac.  802;  Gavin  v.  Phillips,  12  Cal.  App. 
34;  106  Pac.  424.  The  payment  of  taxes 
"by  a  third  person,  merely  as  the  result  of 
an  erroneous  assessment,  does  not  affect 
the  title  to  land  occupied  by  the  owner, 


nor  debar  him  of  his  right  to  have  it 
quieted.  Vanderbilt  v.  All  Persons,  163 
Cal.  507;  126  Pac.  158.  The  proof  of  the 
payment  of  taxes  is  admissible  to  show 
claim  of  title,  and  that  it  had  not  been 
abandoned.  Baum  v.  Reay,  96  Cal.  462; 
29  Pac.  117;  31  Pac.  561;  Southern  Pacific 
R.  R.  Co.  v.  Whittaker,  109  Cal.  268;  41 
Pac.  1083. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  325. 

1.  Real  property.  Oakland  v.  Carpentier,  13 
Cal.  540;  Morton  v.  Folger,  15  Cal.  275;  Fre- 
mont V.  Seals,  18  Cal.  433;  Clarke  v.  Huber,  25 
Cal.  596;  Billings  v.  Harvey,  6  Cal.  383;  Billings 
V.  Hall,  7  Cal.  3.  For  a  digest  of  the  above- 
cited  decisions  on  the  several  points  involved, 
see  note  to  §  312,  ante,  where  these  cases  are 
discussed. 

2.  Division  lines.  Tences.  As  to  division  lines 
between  sdjacent  lands,  acquiescence  for  the  time 
prescribed  by  the  statute  of  limitations  concern- 
ing real  property  may  fix  the  division  line  as  to 
the  owners,  etc.  Sneed  v.  Osborn,  25  Cal.  626, 
and  authorities  cited. 

3.  Eight  to  use  running  water.  Adverse  en- 
joyment. To  acquire  a  right  to  the  use  of  a  run- 
ning stream  by  adverse  enjoyment  or  prescription, 
it  is  necessary  that  such  adverse  enjoyment  or 
prescription  should  have  continued  for  a  period 
corresponding  to  the  time  fixed  by  the  statute  of 
limitations  as  a  bar  to  an  entry  on  land,  viz.,  five 
years.  Crandall  v.  Woods,  8  Cal.  144;  Davis  v. 
Gale,  32  Cal.  26;  91  Am.  Dec.  554. 

4.  Adverse  possessor  allowing  others  below  to 
use  water.  If  one  taking  adverse  possession  of 
water,  as  against  a  prior  appropriator,  suffers 
a  portion  of  the  same  to  flow  down  to  accom- 
modate miners  working  below,  this  does  not  preju- 
dice his  adverse  possession  so  as  to  prevent  the 
running  of  the  statute  of  limitations.  Davis  v. 
Gale,  32  Cal.  26  ;  91  Am.  Dec.  554. 

5.  Water  rights  acquired  by  adverse  posses- 
sion. The  right  to  the  use  of  a  watercourse  in 
the  public  mineral  lands,  and  the  right  to  divert 
and  use  the  water  taken  therefrom,  is  acquired 
by  appropriation  and  use,  the  person  first  ap- 
propriating it  being  deemed  to  have  the  title,  as 
against  all  the  world,  except  the  United  States 
and  persons  claiming  under  them,  to  the  extent 
that  he  thus  appropriated  it  before  the  rights  of 
others  attached.  The  rights  thus  acquired  may 
be  held,  granted,  abandoned,  or  lost  by  the  same 
means  as  a  right  of  the  same  character  issuing 
out  of  lands  to  which  a  private  title  exists.  The 
right  of  the  first  appropriator  may  be  lost,  in 
whole  or  in  some  limited  portions,  by  the  ad- 
verse possession  of  another.  And  when  such 
person  has  had  the  continued,  uninterrupted,  and 
adverse  enjoyment  of  the  watercourse,  or  of  some 
certain  portion  of  it,  during  the  period  limited 
hy  the  statute  of  limitations  for  entry  upon  lands, 
the  law  will  presume  a  grant  of  the  right  so 
held  and  enjoyed  by  him.  Bealey  v.  Shaw.  6 
East,  208;  Balston  v.  Buested,  1  Camp.  463; 
Ricard  v.  Williams,  7  Wheat.  59,  5  L.  Ed.  398; 
Williams  v.  Nelson,  23  Pick.  141,  34  Am.  Dec. 
45;  Colvin  v.  Burnet,  17  Wend.  564;  Hammond 
V.  Zehner,  23  Barb.  473 ;  Yankee  Jim's  Union 
Water  Co.  v.  Crary,  25  Cal.  509;  85  Am.  Dec. 
145. 

6.  Eight  to  water  by  adverse  use,  by  prescrip- 
tion. Burden  of  proof,  etc.  The  general  and  es- 
tablished doctrine  is,  that  an  exclusive  and  unin- 
terrupted enjoyment  of  water,  in  any  particular 
way,  for  a  period  corresponding  to  the  time  lim- 
ited by  statute  within  which  an  action  must  be 
commenced  for  the  recovery  of  the  property  or  of 
the  assumed  right  held  and  enjoyed  adversely, 
becomes  an  adverse  enjoyment  sufficient  to  raise 
a  presumption  of  title  as  against  a  right  in  any 
other  person  which  might  have  been  but  was  not 
asserted.  3  Kent's  Com.,  pp.  441—446;  Bealey  ▼. 
Shaw,  6  East,  214;  Shaw  v.  Crawford,  10  Johns. 
236;  Johns  v.  Stevens,  3  Vt.  316;  Yankee  Jim's' 
Union  Water  Co.  v.  Crary,  25   Cal.  504;   85  Am. 


165 


ENTRY   ON  REAL  ESTATE, 


§§319,320 


Dec.  145.  The  right  \7hich  the  defendants  cl<iim 
under  the  prant,  which  they  assumed  to  exist, 
as  evidenced  bv  their  adverse  use  and  en.ioymeiit 
of  the  water  for  five  years,  they  denominate  an 
easement.  An  easement  or  servitude  may  be 
created  by  grant  or  prescription,  and  when  created 
it  will  pass  liy  conveyance  with  the  dominant 
estate  (that  is,  with  the  est.nte  to  which  it  is 
appurtenant,  as  an  incorporeal  hereditament)  at- 
tached to  the  servient  estate,  subjecting  the  lat- 
ter to  the  benefit  of  the  former.  But  the  owner 
of  tho  easement  or  servitude  has  no  general  prop- 
erty in  nor  seisin  of  the  servient  estate,  though 
lie  may,  by  holding  a  fee  in  the  dominant  estate, 
have  an  estate  of  inheritance  in  the  easement  or 
servitude.  Washburn  on  Easements,  ch.  i,  §1; 
Ersk.  Inst.,  p.  352;  Wolfe  v.  Frost,  4  Sandf.  Ch. 
89.  A  grant  of  an  estate  in  lands,  whether  cor- 
poreal or  incorporeal,  may  be  presumed  from  an 
adverse  enjoyment  for  the  period  corresponding 
to  the  statute  of  limitations  within  which  an  ac- 
tion might  have  lieen  maintained  against  the 
person  holding  and  enjoying  adversely.  But  what 
must  be  the  circumstances  under  which  such  pre- 
sumption may  arise?  In  order  that  the  enjoy- 
ment of  an  easement  in  another's  land  may  be 
conclusive  of  the  right  claimed,  it  must  have  been 
adverse  in  the  legal  sense  of  the  term;  that  is, 
the  right  must  have  been  asserted  under  a  claim 
of   title,   with   the   knowledge  and   acqiiiescence   of 


the  owner  of  the  land,  and  uninterrupted.  The 
burden  of  proving  this  is  on  the  party  claiming 
the  easement.  If  he  leaves  it  doubtful  whether 
the  enjoyment  was  adverse,  known  to  the  owner 
and  uninterrupted,  it  is  not  conclusive  in  his 
favor.  2  (^reenleaf  on  Evidence,  S  539 ;  Green- 
leaf's  Cruise,  tit.  :il,  ch.  i,  note  1  to  §  21,  and 
cases  therein  cited.  According  to  the  common- 
law  system  of  pleading,  a  defendant  could  not 
give  in  evidence  under  the  general  issue,  in  ex- 
cuse or  justification  of  an  alleged  trespass,  a  right 
of  common,  or  a  public  or  private  right  of  way, 
or  a  right  to  an  easement,  nor  any  interest  in 
land  short  of  property  or  right  of  possession. 
Saunders  v.  Wilson,  15  Wend.  338;  Babcoek  v. 
Lamb,  I  Cow.  239:  Rouse  v.  Bardin,  1  H.  Bl. 
352;  2  Saund.  PI.  &  Ev.,  p.  856;  1  Chitty's  Plead- 
ing, p.  505.  A  defense  of  the  kind  mentioned 
had  to  be  pleaded  specially.  The  reason  of  the 
rule  was  to  prevent  surprise.  Demick  v.  Chap- 
man, 11  Johns.  132.  The  rule  of  the  common 
law  here  referred  to  has  not  been  changed  s.)  as 
to  obviate  the  necessity  of  pleading  specially  such 
defense.  By  the  law  of  this  state  the  defendants 
are  bound  to  interpose  their  alleged  right  by  an- 
swer as  well  as  by  evidence,  provided  it  be  con- 
ceded that  plaintiff  had  the  prior  right  and  title 
to  the  waters  of  the  creek.  American  Company 
v.  Bradford,  27  Cal.  366,  367. 

7.   Generally.     See  note  to  §  320,  post. 


§  319.  Such  seisin,  when  necessary  in  action  or  defense  arising  out  of 
title  to  or  rents  of  real  property.  No  cause  of  action,  or  defense  to  an  action, 
arising  out  of  the  title  to  real  property,  or  to  rents  or  profits  out  of  the  same, 
can  be  effectual,  unless  it  appear  that  the  person  prosecuting  the  action,  or 
making  the  defense,  or  under  whose  title  the  action  is  prosecuted,  or  the 
defense  is  made,  or  the  ancestor,  predecessor,  or  grantor  of  such  person  was 
seised  or  possessed  of  the  premises  in  question  within  five  years  before  the 
commencement  of  the  act  in  respect  to  w^hich  such  action  is  prosecuted  or 
defense  made. 

recover  damages  to  real  property,  rents, 
etc.  liagely  v.  Hagely,  68  Cal.  348;  9  Pac. 
305;  Richarrlson  v.  Williamson,  24  Cal.  289. 
It  does  not  bar  the  right  of  a  mortgagor  to 
redeem,  as  against  the  mortgagee  in  pos- 
session, unless  the  mortgagee  has  had  con- 
tinuous adverse  possession  for  five  years 
after  the  breach  of  condition  in  the  mort- 
gage. Warder  v.  Enslen,  73  Cal.  291;  14: 
Pac.  874;  Cohen  v.  Mitchell,  2  Cal.  Unrep. 
629;  9  Pac.  649. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  325. 

1.  Rents  or  profits.  See  Kimball  v.  Lohmas.  31 
Cal.  159,  affirming  Halleck  v.  Mi.xer,  16  Cal.  574. 

2.  In  an  action  to  recover  lands,  the  plaintiff 
can  recover  the  rents  and  prolits  for  three  years 
only,  prior  to  the  commencement  of  the  action, 
if  the  defendant  pleads  the  statute  of  limitations 
as  to  them.  Carpentier  v.  Mitchell,  29  Cal.  330, 
and  authorities  cited  therein  ;  affirming,  also,  Rich- 
ardson v.  Williamson,  24  Cal.  289;  see  also  §  312, 
ante;  see  note  to  next  section. 

§  320.  Entry  on  real  estate.  No  entry  upon  real  estate  is  deemed  suffi- 
cient or  valid  as  a  claim,  unless  an  action  be  commenced  thereupon  within 
one  year  after  making  such  entry,  and  within  five  years  from  the  time  w^hen 
the  right  to  make  it  descended  or  accrued. 

Legislation  §  320.  Enacted  March  11,  1873;  of  the  passage  of  the  amendatory  act. 
based  on  Stats.  1863,  p.  325.  Billings  V.  Harvey,  6  Cal.  381;  Billings  v. 

Effect  of  amendment  of  statute.     Where       jj^j,^  7  ^al.  1 ;  Morton  v.  Folger,  15  Cal. 
the  stjitute   of  limitations  IS  amended,  the       275.  Clarke  v.  Huber,  25  Cal.  593. 
time  fixed  therein  runs  only  from  the  date  '  ' 


Action    includes    special    proceeding    of    civil 
nature.    Post,  §  363. 

Legislation  §  319.      Enacted   March   11,    1873; 
based  on  Stats.  1863,  p.  325. 

Defense  of  actions  concerning  real  estate. 

The  preceding  section  relates  to  actions  for 
the  recovery  of  real  property,  while  this 
relates  to  the  defense  thereof  (Richardson 
V.  Williamson,  24  Cal.  289) ;  but  it  does  not 
apply  to  actions  involving  mere  easements 
in  land  (Woodruff  v.  North  Bloomfield 
Gravel  Mining  Co.,  18  Fed.  753;  9  Sawy. 
441),  nor  to  actions  to  quiet  title  (Brusie 
V.  Gates,  80  Cal.  462;  22  Pac.  284),  nor  to 
cases  where  the  defendant  was  never  in 
the  actual  possession,  and  never  paid  any 
taxes  assessed  against  the  property  (Berni- 
aud  V.  Beecher,  71  Cal.  38;  11  Pac.  802): 
it  applies  to  personal  actions,  founded  upon 
title  to  real  property,   such  as  actions  to 


§  321      TIME  OF   COMMENCING   ACTIONS   FOR   RECOVERY   OF    REAL    PROPERTY.       166 


CODE  COMMISSIONERS'  NOTE.  Stats.  1863, 
p.  325. 

1.  Mexican  grants.  This  chapter  embodies  the 
provisions  of  statutes  existing  prior  to  the  adop- 
tion of  the  code  relative  to  the  time  of  commen- 
cing actions  for  the  recovery  of  real  property. 
They  have  been  carefully  revised  and  placed  in 
logical  order,  but  no  substantial  changes  have 
been  made.  Section  6  of  the  act  of  1863  (Stats. 
1863,  p.  325)  provides,  among  other  things,  that 
"any  person  claiming  real  property,  or  the  pos- 
session thereof,  or  any  right  or  interest  therein, 
under  the  title  derived  from  the  Spanish  or  Mexi- 
can governments,  or  the  authorities  thereof,  which 
shall  not  have  been  fully  confirmed  by  the  gov- 
ernment of  the  United  States,  or  its  legally  con- 
stituted authorities,  more  than  five  years  before 
the  passage  of  this  act,  may  have  five  years  after 
the  passage  of  this  act  in  which  to  commence  his 
action  for  the  recovery  of  such  real  property,  or 
the  possession  thereof,  or  any  right  or  interest 
therein,  or  for  rents  or  profits  out  of  the  same, 
or  to  make  his  defense  to  an  action  founded  upon 
the  title  thereto;  and  provided  further,  that  noth- 
ing in  this  act  shall  be  so  construed  as  to  extend 
or  enlarge  the  time  for  commencing  actions  for 
the  recovery  of  real  estate  or  the  possession 
thereof,  under  title  derived  from  Spanish  or  Mexi- 
can governments,  in  a  case  where  final  confirma- 


tion has  already  been  had,  other  than  is  now 
allowed  under  the  act  to  which  this  act  is  amend- 
atory." As  the  time  fixed  in  this  statute  has  ex- 
pired, and  all  rights  that  have  accrued  under  it 
are  preserved  by  the  saving  clause  in  the  prelim- 
inary part  of  this  code  (see  §8,  ante;  and  see 
Billings  V.  Harvey,  6  Cal.  381),  it  was  thought 
unnecessary  to  insert  any  provisions  excepting 
lands  within  those  grants  from  the  operation  of 
the  general  rule  relating  to  real  actions.  For  de- 
cisions respecting  these  grants,  see  Billings  v. 
Harvey,  6  Cal.  3''81 ;  Billings  v.  Hall,  7  Cal.  1; 
Dominguez  v.  Dominguez,  7  Cal.  424.  Statute 
does  not  begin  to  run  until  after  issuance  of  pat- 
ent. Reed  v.  Snicer,  27  Cal.  58;  Figg  v.  Mayo, 
39  Cal.  262;  Soto  v.  Kroder,  19  Cal.  87;  Judson 
V.  Malloy,  40  Cal.  300;  Johnson  v.  Van  Dyke, 
20  Cal.  225;  Downer  v.  Smith,  24  Cal.  114.  But 
see  the  elaborate  opinion  of  Justice  Field  in  Mont- 
gomery V.  Bevans,  1  Sawy.  653;  Fed.  Cas.  No. 
9735;  also  Palmer  v.  Low,  opinion  by  Sawyer,  J., 
2  Sawy.  248;  Fed.  Cas.  No.  10693;  4  Pac.  Law 
Rep.  No.  20. 

2.  Pleadings.  Anderson  v.  Fisk  36  Cal.  625; 
Ord  V.  De  La  Guerra,  18  Cal.  67;  Richardson  v. 
Williamson.  24  Cal.  289;  Vassault  v.  Seitz,  31 
Cal.  228;  Beach  v.  Gabriel,  29  Cal.  584;  Davis  v. 
Davis,  26  Cal.  23;  85  Am.  Dec.  157;  Mahoney  v. 
Van  Winkle,  33  Cal.  448.    See  note  to  §  312,  ante. 


Adverse  possession.    Post,  §§  322-325. 
Forcible  entry,   one  year.    Post,   §  1172. 
Payment  of  taxes.    See  post,  §  325. 


§  321.  Possession,  v^hen  presumed.  Occupation  deemed  under  legal  title, 
unless  adverse.  In  every  action  for  the  recovery  of  real  property,  or  the 
possession  thereof,  the  person  establishing  a  legal  title  to  the  property  is 
presumed  to  have  been  possessed  thereof  within  the  time  required  by  law, 
and  the  occupation  of  the  property  by  any  other  person  is  deemed  to  have 
been  under  and  in  subordination  to  the  legal  title,  unless  it  appear  that  the 
property  has  been  held  and  possessed  adversely  to  such  legal  title,  for  five 
years  before  the  commencement  of  the  action. 

in  any  kind  of  action,  for  they  occupy  the 
position  of  conflicting  claimants  as  to 
the  true  title,  and  not  as  to  possession  only. 
Where  the  defendant  is  in  possession  as  a 
naked  trespasser,  and  his  right  rests  only 
upon  a  bald  assertion,  which  merely  suffices 
to  put  the  statute  of  limitations  in  motion, 
he  is  not  in  a  position  to  contest  the  title 
of  the  plaintiff,  in  such  a  sense  as  to  de- 
feat a  personal  action;  for  notwithstand- 
ing he  may  have  alleged  title  in  himself, 
it  turns  out  to  be  false,  and  at  the  outcome 
it  is  made  clear  that  title,  although  appar- 
ently a  fact  in  issue,  is  so  in  no  just  sense, 
but  only  in  seeming,  and  is  in  fact  only 
exhibited  by  the  plaintiff  collaterally  for 
the  purpose  of  proving  his  right  to  the 
property  in  the  suit.  Kimball  v.  Lohmas, 
31  Cal.  154;  Halleck  v.  Mixer,  16  Cal.  574. 
Possession,  when  adverse.  To  constitute 
adverse  possession,  and  set  the  statute  of 
limitations  running,  terminating  in  a  bar, 
there  must  be  present,  and  proved,  five  dis- 
tinct elements:  1.  The  possession  must  be 
actual,  exclusive,  open,  and  notorious,  and 
not  clandestine;  2.  It  must  be  hostile  to 
the  plaintiff's  title;  3.  It  must  be  under  a 
claim  of  title,  exclusive  of  any  other  right, 
as  one's  own;  4.  It  must  be  eoiitinuous  and 
uninterrupted  for  five  years  prior  to  the 
commencement  of  the  action,  not  neces- 
sarily next  preceding  that  event;  5.  The 
taxes  must  have  been  paid  for  five  years, 
by  the  occupant.    Unger  v.  Mooney,  63  Cal. 


Legislation  §  321.  Enacted  March  11;  1873; 
based  on  Stats.  1850,  p.  343. 

Kinds  of  adverse  possession.  Adverse 
possession  is  of  different  kinds:  1.  Where 
the  possession  is  taken  by  bow  and  spear, 
without  color  of  title,  but  with  the  intent 
to  claim  the  fee,  exclusive  of  any  other 
right,  and  to  hold  it  against  all  comers; 
and  2.  Where  the  possession  is  taken  under 
a  claim  of  title,  founded  upon  a  written 
instrument,  as  a  conveyance,  or  upon  the 
decree  or  judgment  of  a  court  of  compe- 
tent jurisdiction.  The  first  is  sufficient  to 
put  the  statute  of  limitations  in  motion, 
and,  at  the  expiration  of  five  years,  vests 
in  the  usurper  a  right,  under  the  statute, 
which  is  equivalent  to  title;  but,  until  the 
statute  has  run,  he  is,  as  to  the  true  owner, 
a  mere  intruder  without  right.  It  cannot 
be  said,  in  any  just  sense,  that,  as  between 
him  and  the  true  owner,  a  case  of  conflict- 
ing title  is  presented  until  the  statute  has 
run;  or  that,  until  then,  there  can  be,  as 
between  them,  any  substantial  contest  as 
to  the  title;  but  as  to  the  other  or  second 
kind  of  adverse  possession,  the  case  is 
otherwise:  there,  the  possession  is  accom- 
panied by  at  least  a  colorable  title,  and  an 
actual  and  substantial  contest  as  to  the 
title  must  arise  whenever  the  party  out  of 
possession   undertakes  to  assert   his  rights 


1G7 


POSSESSION,    WHEN    PRESUMED. 


§321 


586;  49  Am.  Rep.  100.  When  so  existing, 
it  not  only  bars  the  remedy,  but  extin- 
guishes the  right  of  the  holder  of  the  title. 
Arrington  v.  Liseom,  34  Cal.  365;  94  Am. 
Dec.  722;  Cannon  v.  Stockmon,  36  Cal.  535; 
95  Am.  Dec.  205;  San  Francisco  v.  Fulde, 
37  Cal.  349;  99  Am.  Dec.  278.  By  adverse 
enjoyment,  water  flowing  through  a  nat- 
ural channel  may  ripen  into  title  (Crandall 
V.  Woods,  8  Cal.  136) ;  as  also  may  the  use 
of  a  ditch  constructed  for  conveying  water. 
Campbell  v.  West,  44  Cal.  646.  It  is  suf- 
ficient to  constitute  adverse  possession  of 
public  lands,  that  the  defendant  claims  the 
right  against  all  the  world,  except  the 
United  States:  it  is  not  necessary  that  it 
be  under  color  of  title.  Page  v.  Fowler,  28 
Cal.  605;  Hayes  v.  Martin,  45  Cal.  559; 
McManus  v.  O'SuUivan,  48  Cal.  7.  A  parol 
gift  of  land,  followed  by  possession  by  the 
donee,  is  a  sufficient  basis  for  the  acquisi- 
tion of  title  by  adverse  possession  (Bald- 
win v.  Temple,'l01  Cal.  396;  35  Pac.  1008), 
and  the  rule  operates  in  favor  of  the  gran- 
tee of  such  parol  donee  (Bakersfield  Town 
Hall  Ass'n  v.  Chester,  55  Cal.  98);  but  a 
mere  trespasser  cannot  invoke  this  rule. 
Page  V.  Fowler,  28  Cal.  605. 

Open  and  notorious.  The  possession 
must  be  actual,  open,  exclusive,  and  notori- 
ous (Thompson  v.  Pioche,  44  Cal.  508; 
linger  v.  Mooney,  63  Cal.  586;  49  Am.  Rep. 
100;  American  Co.  v.  Bradford,  27  Cal. 
360;  Lick  v.  Diaz,  30  Cal.  65;  Garwood  v. 
Hastings,  38  Cal.  216;  Ball  v.  Kehl,  95  Cal. 
606;  30  Pac.  780);  and  the  claim  must  be 
absolute,  that  is,  not  dependable  on  any 
contingency,  and  must  continue  without 
interruption  for  the  statutory  period.  Mc- 
Cracken  v.  San  Francisco,  16  Cal.  591; 
Gernon  v.  Sissons,  21  Cal.  App.  123;  131 
Pac.  85.  The  possession  must  be  of  such  a 
character  as  to  operate  as  notice  to  the 
holder  of  the  legal  title  that  possession  is 
held  under  right  (Maiildin  v.  Cox,  67  Cal. 
387;  7  Pac.  804);  that  is,  it  must  be  suffi- 
ciently open  and  notorious  to  notify  a 
prudent  and  ordinary  owner  of  its  exist- 
ence and  of  its  hostile  character  (De  Frieze 
V.  Quint,  94  Cal.  653;  28  Am.  St.  Rep.  151; 
30  Pac.  1;  Smith  v.  Yule,  31  Cal.  180;  89 
Am.  Dec.  167;  Thompson  v.  Pioche,  44  Cal. 
508;  Thompson  v.  Felton,  54  Cal.  547; 
Unger  v.  Mooney,  63  Cal.  586;  49  Am.  Rep. 
100;  Thomas  v.  England,  71  Cal.  456;  12 
Pac.  491) ;  and  it  must  be  of  such  a  char- 
acter as  to  give  a  right  of  action  to  the 
real  owner.  Hanson  v.  McCue,  42  Cal. 
303;  10  Am.  Rep.  299;  Anaheim  Water  Co. 
V.  Semi-Tropic  Water  Co.,  64  Cal.  185;  30 
Pac.  623;  Lakeside  Ditch  Co.  v.  Crane,  SO 
Cal.  181;  22  Pac.  76;  Alta  Land  etc.  Co.  v. 
Hancock,  85  Cal.  219;  20  Am.  St.  Rep.  217; 
24  Pac.  645;  Sullivan  v.  Zeiner,  98  Cal. 
346;  20  L.  R.  A.  730;  33  Pac.  209.  Such 
possession  will  charge  another,  dealing 
with  the  owner  in  relation  thereto.  Staf- 
ford V.  Lick,  7  Cal.  479;  Hunter  v.  Watson, 


12  Cal.  363;  73  Am.  Dec.  543;  "Woodson  v. 
McCune,  17  Cal.  298;  Havens  v.  Dale,  18 
Cal.  359;  Lestrade  v.  Barth,  19  Cal.  660; 
Dutton  V.  Warschauer,  21  Cal.  609;  82  Am. 
Dec.  765;  Daubenspeck  v.  Piatt,  22  Cal. 
330;  Landers  v.  Bolton,  26  Cal.  393;  Fair 
V.  Stevenot,  29  Cal.  486;  Killey  v.  Wilson, 
33  Cal.  690;  Pell  v.  McElroy,  36  Cal.  268; 
O'Rourke  v.  O'Connor,  39  Cal.  442;  Moss 
V.  Atkinson,  44  Cal.  3;  Hellman  v.  Levy, 
55  Cal.  117;  Pacific  Mut.  Life  Ins.  Co.  v. 
Stroupe,  63  Cal.  150.  Neither  the  cases 
nor  the  text-writers  agree  in  their  classi- 
fication of  notices.  In  most  cases,  all  de- 
scriptions of  notices,  except  positive, — 
those  in  which  the  knowledge  of  the  deed 
is  brought  directly  home  to  the  party, — • 
are  held  to  be  included  among  constructive 
notices;  but  in  others,  all  notices  that  are 
not  deduced  as  conclusive  presumptions  of 
law  arising  from  a  given  state  of  facts, 
are  considered  to  fall  within  the  class  of 
actual  notices.  Fair  v.  Stevenot,  29  Cal. 
486.  In  this  state,  constructive  notice  of 
title  is  founded  upon  the  recordation  of 
the  instrument.  Mesick  v.  Sunderland,  6 
Cal.  297;  Stafford  v.  Lick,  7  Cal.  479. 
Actual  possession  of  land,  with  the  exer- 
cise of  the  usual  acts  of  ownership  and 
dominion  over  it,  operates,  in  law,  as  con- 
structive notice  to  all  the  world  of  the 
claim  of  title  under  which  the  possessor 
holds.  Talbert  v.  Singleton,  42  Cal.  390; 
Pacific  Mut.  Life  Ins.  Co.  v.  Stroupe,  63 
Cal.  150. 

Must  be  hostile.  The  possession  must 
also  be  hostile  to  the  plaintiff's  title, 
Unger  v.  Mooney,  63  Cal.  586;  49  Am.  Rep. 
100.  The  essence  of  adverse  title  is,  that 
the  holder  claims  the  right  to  his  posses- 
sion, not  under,  but  in  opposition  to,  the 
title  to  which  his  title  is  alleged  to  be  ad- 
verse (McManus  v.  O'Sullivan,  48  Cal.  7); 
and  where  the  occupancy  of  land  is  by 
acquiescence  or  permission  of  the  owner,  it 
is  not  adverse  to  the  title  of  the  owner. 
Unger  v.  Moonev,  63  Cal.  586;  49  Am. 
Rep.  100;  Ball  v.  Kehl,  95  Cal.  606;  30  Pac. 
780.  Hostility  to  a  particular  claim  of 
another  party  in  the  action  is  sufficient  to 
raise  the  bar  of  the  statute  between  them 
(McManus  v.  O'Sullivan,  48  Cal.  7),  and 
this  does  not  depend  on  whether  or  not 
the  occupant  had  knowledge  of  his  inter- 
ference with  the  rights  of  the  other  party 
(Grimm  v.  Curley,  43  Cal.  250),  that  being 
only  a  circumstance  tending  to  establish 
more  strongly  the  good  faith  and  exclu- 
siveness  of  the  occupant's  claim.  Silvarer 
V.  Hansen,  77  Cal.  579;  20  Pac.  136.  Hold- 
ing possession  under  another  is  not  adverse 
(Von  Glahn  v.  Brennan,  81  Cal.  261;  22 
Pac.  596);  for  it  is  in  subordination  to 
the  owner's  title.  Frink  v.  Alsip,  49  Cal. 
103;  Gernon  v.  Sisson,  21  Cal.  App.  123; 
131  Pac.  85.  Thus,  the  possession  of  a 
vendee,  under  a  contract  of  sale,  after 
rescission,  is  not   adverse   to   that   of  the 


§  321   TIME  OF  COMMENCING  ACTIONS  FOR  RECOVERY  OF  REAL  PROPERTY.   16S 


vendor  (Frisbie  v.  Price,  27  Cal.  253; 
Simpson  v.  Applegate,  75  Cal.  342;  17  Pac. 
237),  unless  the  vendee  denies  the  relation 
of  landlord  and  tenant,  existing  in  such 
case.  Smith  v.  Shaw,  16  Cal.  88;  Dodge  v. 
Walley,  22  Cal.  224;  83  Am.  Dec.  61;  Bol- 
ton v.  Landers,  27  Cal.  104;  Campbell  v. 
Jones,  38  Cal.  507;  Simpson  v,  Applegate, 
75  Ca'l.  342;  17  Pac.  237.  This  is  so,  where 
a  vendee,  through  fraud  and  mistake,  en- 
ters upon  a  different  tract,  belonging  to 
the  same  vendor.  Parish  v.  Coon,  40  Cal. 
33;  McManus  v.  O'Sullivau,  48  Cal.  7; 
Thompson  v.  Felton,  54  Cal.  547.  A  lease 
of  land  interrupts  the  running  of  the  stat- 
ute in  favor  of  the  lessee.  Abbey  Hoijie- 
stead  Ass'n  v.  Willard,  48  Cal.  614.  The 
general  rule  is,  that  the  tenant  cannot  dis- 
pute his  landlord's  title,  either  during  the 
term  of  the  lease  or  during  his  occupancy 
under  such  entry  (see  Willson  v.  C'leave- 
land,  30  Cal.  192;  Tewksbury  v.  Magraff,  33 
Cal.  237;  Franklin  v.  Merida,  35  Cal.  558; 
95  Am.  Dec.  129);  but  where  the  lessee 
is  deceived  or  imposed  upon  by  the  lessor, 
the  rule  is  otherwise.  Pacific  Mut.  Life 
Ins.  Co.  V.  Stroup,  63  Cal.  150.  The  ac- 
ceptance, by  the  owner,  of  the  possession 
of  his  land  from  another,  does  not  destroy 
his  title  (Baldwin  v.  Temple,  101  Cal.  396; 
35  Pac.  1008);  and  an  offer,  after  title  has 
been  acquired  by  adverse  possession,  to  pur- 
chase of  the  holder  of  the  paper  title  what- 
ever interest  he  may  have,  for  the  purpose 
of  quieting  title,  does  not  give  effect  to 
such  paper  title,  nor  render  invalid  the  title 
of  the  party  making  the  offer.  Furlong  v. 
Cooney,  72  Cal.  322;  14  Pac.  12;  Frick  v. 
Simon,  75  Cal.  337;  7  Am.  St.  Rep.  177; 
17  Pac.  439;  Winterburn  v.  Chambers,  91 
Cal.  170;  27  Pac.  658;  Arrington  v.  Liscom, 
34  Cal.  365;  94  Am.  Dec.  722.  While  an 
offer  to  purchase  or  rent  property,  and  not 
merely  to  purchase  an  outstanding  or  ad- 
verse claim  or  title  to  quiet  possession  or 
protect  from  litigation,  amounts  to  a  rec- 
ognition of  title  (Lovell  v.  Frost,  44  Cal. 
471;  Abbey  Homestead  Ass'n  v.  Willard, 
48  Cal.  614;  Central  Pacific  R.  R.  Co.  v. 
Mead,  63  Cal.  112),  yet  the  purchase  of 
the  outstanding  title,  by  one  in  actual  ad- 
verse possession,  does  not  affect  the  charac- 
ter of  that  adverse  possession  (Winterburn 
V.  Chambers,  91  Cal.  170;  27  Pac.  658),  nor 
estoj)  him  from  setting  up  the  statute  of 
limitations.  Schuhman  v.  Garratt,  16  Cal. 
100;  Cannon  v.  Stockmon,  36  Cal.  535;  95 
Am.  Dec.  205;  Lovell  v.  Frost,  44  Cal.  471. 
In  a  mutual  contract  for  the  exchange 
of  land,  the  time  for  performance  not  being 
specified,  where  one  party  performs,  the 
statute  runs  from  the  date  of  the  delivery 
of  the  deed.  Brennan  v.  Ford,  46  Cal.  7; 
Barron  v.  Frink,  30  Cal.  486;  Hill  v. 
Grigsby,  35  Cal.  656;  Gernon  v.  Sisson,  21 
Cal.  App.   123;    131  Pac.  85. 

Under  claim  of  title.  The  possession 
must  also  be  under  a  claim  of  title,  ex- 
clusive  of   any   other,   as   one's   own.    Mc- 


Cracken  v.  San  Francisco,  16  Cal.  591;  Kile 
V.  Tubbs,  23  Cal.  431;  Kimball  v.  Lohmas, 
31  Cal.  154;  Garrison  v.  McGlocklev,  38 
Cal.  78;  Lovell  v.  Frost,  44  Cal.  471; 
Thompson  v.  Pioche,  44  Cal.  508;  linger  v. 
Mooney,  63  Cal.  586;  49  Am.  Rep.  100. 
The  person  must  not  only  have  possession 
adverse  to  the  true  owner,  but  he  must 
claim  title  as  against  him  during  the  statu- 
tory period.  Lovell  v.  Frost,  44  Cal.  471; 
Rix  V.  Horstmann,  93  Cal.  502;  29  Pac. 
120;  Gillespie  v.  Jones,  47  Cal.  259.  The 
entry  with  color  of  title,  where  the  occu- 
pation is  of  a  broad  nature,  will  be  held 
to  be  coextensive  with  the  deed.  Gunn  v. 
Bates,  6  Cal.  263;  Rose  v.  Davis,  11  Cal. 
133;  Baldwin  v.  Simpson,  12  Cal.  560;  Mc- 
Cracken  v.  San  Francisco,  16  Cal.  591; 
English  V.  Johnson,  17  Cal.  107;  76  Am. 
Dec.  574;  Attwood  v.  Fricot,  17  Cal.  37;  76 
Am.  Dec.  567;  Keane  v.  Cannovan,  21  Cal. 
291;  82  Am.  Dec.  738;  Kile  v.  Tubbs,  23 
Cal.  431,  432;  Hicks  v.  Coleman,  25  Cal. 
122;  85  Am.  Dee.  103;  Hoag  v.  Pierce,  28 
Cal.  187;  Davis  v.  Perley,  30  Cal.  630; 
Walsh  V.  Hill,  38  Cal.  481.  But  this  rule 
is  not  applicable  where  one  conveys  a 
large  tract,  with  no  color  of  title  beyond 
the  possession  of  a  limited  portion  thereof, 
as  the  right  of  possession  cannot  be  so  ex- 
tended (Kile  V.  Tubbs,  23  Cal.  431),  so 
that  the  actual  entry  and  occupation  of  a 
part  of  a  tract,  under  a  deed,  by  one  claim- 
ing the  whole,  gives  adverse  title  only  to 
the  extent  of  his  actual,  as  distinguished 
from  his  constructive,  possession.  Davis  v. 
Perley,  30  Cal.  630.  Acquiescence  in  and 
adoption  of  ambiguous  calls  in  a  deed 
are  conclusive  upon  the  parties  and  their 
privies  (Hastings  v.  Stark,  36  Cal.  122) ;  but 
where  the  parties  are  ignorant  of  the  true 
boundary  line,  and  agree  upon  a  boundary 
line  until  the  true  line  can  be  ascertained, 
the  possession  of  neither  is  adverse  to  the 
other.  Irvine  v.  Adler,  44  Cal.  559;  Quinn 
V.  Windmiller,  67  Cal.  461;  8  Pac.  14 
White  V.  Spreckels,  75  Cal.  610;  17  Pac 
715;  Helm  v.  Wilson,  76  Cal.  476;  18  Pac 
604;  Silvarer  v.  Hansen,  77  Cal.  579;  20 
Pac.  136;  Woodward  v.  Paris,  109  Cal.  12 

41  Pac.  781;  Peters  v.  Gracia,  110  Cal.  89; 

42  Pac.  455.  There  must  be  a  recognition 
of  and  an  acquiescence  in  the  boundary 
line  as  the  true  line,  before  there  is  any 
estoppel  as  to  either  party  (Sneed  v.  Os 
born,  25  Cal.  619;  Columbet  v.  Pacheco,  48 
Cal.  395;  Moyle  v.  Connolly,  50  Cal.  295; 
Biggins  V.  Champlin,  59  Cal.  113;  Cooper 
v.  Vierra,  59  Cal.  282;  Johnson  v.  Brown,  63 
Cal.  391;  Quinn  v.  Windmiller,  67  Cal.  461; 
8  Pac.  14);  but  an  actual  dispute  as  to  the 
boundary  line  is  not  necessary  as  the  basis 
for  an  agreed  boundary.  Helm  v.  Wilson, 
76  Cal.  476;  18  Pac.  604;  Silvarer  v.  Han- 
sen, 77  Cal.  579;  20  Pac.  136.  Where,  how- 
ever, one  coterminous  proprietor  erects  a 
division-fence,  claiming  it  to  be  the  true 
boundary  line,  and  holds  it  adversely  for 
the  required  time,  the  other  party  cannot 
afterwards  question  it,  although  he  never 


169 


POSSESSION,    WHEN    PRESUMED. 


§321 


acquiesced  in  such  erection,  but  actually 
protested  against  it.  Whitman  v.  Steiger, 
46  Cal.  256;  Truett  v.  Adams,  66  Cal.  218; 
5  Pac.  96;  and  see  Quinn  v.  Windmiller, 
67  Cal.  461;  8  Pac.  14.  Possession  of  land 
by  mistake  has  been  said  to  want  the  es- 
sential elements  of  adverse  possession 
(Shells  V.  Haley,  61  Cal.  157);  but  this 
doctrine  has  been  criticised  and  overruled 
(Woodward  v.  Paris,  109  Cal.  12;  41  Pac. 
781;  Grimm  v.  Curley,  43  Cal.  250;  Sil 
varer  v.  Hansen,  77  Cal.  579;  20  Pac.  136 
Mayor  and  Common  Council  v.  Trimble,  41 
Cal.  536) ;  and  a  holding,  b}"  mistake,  ad 
versely,  for  the  time  required  by  the  stat 
ute,  gives  a  perfect  title  to  the  premises 
Woodward  v.  Paris,  109  Cal.  12;  41  Pac 
781;  Arrington  v.  Liseom,  34  Cal.  365;  94 
Am.  Dec.  722;  Cannon  v.  Stockmon,  36 
Cal.  535;  95  Am.  Dec.  205;  Williams  v. 
Sutton,  43  Cal.  65;  Langford  v.  Poppe,  56 
Cal.  73.  The  court  has,  however,  held,  that 
where  the  coterminous  proprietors  are  in 
possession,  under  mutual  mistake  as  to  the 
division  line,  such  possession  is  not  ad- 
verse. Smith  v.  Robarts,  2  Cal.  Unrep.  604; 
9  Pac.  104;  Irvine  v.  Adler,  44  Cal.  559; 
Allen  V.  Reed,  51  Cal.  362;  Shells  v.  Haley, 
61  Cal.  157.  A  user,  which  had  its  origin 
in  a  license  or  a  permission,  may  ripen 
into  a  perfect  title  by  prescription,  if  ex- 
ercised under  claim  of  right.  Barbour  v. 
Pierce,  42  Cal.  657.  Thus,  the  projection 
of  a  house  over  the  land  of  another  may 
become  evidence  of  a  right  to  continue  the 
same.    Gillespie  v.  Jones,  47  Cal.  259. 

Must  be  continuous  and  uninterrupted 
for  five  years.  The  adverse  user  must  be 
under  claim  of  title  for  the  statutory 
period,  with  the  knowledge  and  acquies- 
cence of  the  other  party.  American  Com- 
pany V.  Bradford,  27  Cal.  360;  Alta  Land 
etc.  Co.  V.  Hancock,  85  Cal.  219;  20  Am. 
St.  Rep.  217;  24  Pac.  645;  Faulkner  v. 
Rondini,  104  Cal.  140;  37  Pac.  883.  The 
right  to  overflow  lands  may  be  acquired 
by  adverse  user;  but  there  must  be  an  un- 
interrupted enjoyment  for  the  period  of 
five  years  (Grigsby  v.  Clear  Lake  Water 
Works  Co.,  40  Cal.  396),  and  the  possession 
must  also  be  continuous  (San  Francisco 
V.  Fulde,  37  Cal.  349;  99  Am.  Dec.  278; 
Mayor  and  Common  Council  v.  Trimble,  41 
CaL  536;  Unger  v.  Mooney,  63  Cal.  586; 
49  Am.  Rep.  100;  Nathan  v.  Dierssen,  146 
Cal.  63;  79  Pac.  739),  in  the  party  who 
first  became  adverse,  and  his  successors  in 
interest.  Crandall  v.  Woods,  8  Cal.  136; 
Yankee  Jim's  Union  Water  Co.  v.  Crary, 
25  Cal.  504;  85  Am.  Dec.  145;  San  Fran- 
cisco v.  Fulde,  37  Cal.  349;  99  Am.  Dec. 
278;  Mayor  and  Common  Council  v.  Trim- 
ble, 41  Cal.  536;  Bakersfield  Town  Hall 
Ass'n  V.  Chester,  55  Cal.  98;  MeGrath  v. 
Wallace,  85  Cal.  622;  24  Pac.  793.  An  inter- 
ruption of  the  adverse  possession,  however 
slight,  within  the  period,  prevents  the  ac- 
quisition by  })rescription  (American  Com- 
pany   v.    Bradford,   27    Cal.    360;    Cave    v. 


Crafts,  53  Cal.  135;  Thomas  v.  England,  71 
Cal.  456;  12  Pac.  491;  Alta  Land  etc.  Co.  v. 
Hancock,  85  Cal.  219;  20  Am.  St.  Rep.  217; 
24  Pac.  645;  McGrath  v.  Wallace,  85  Cal. 
622;  24  Pac.  793);  and  this  is  so,  even 
where  the  interruption  was  by  force  or 
fraud  (Mayor  and  City  Council  v.  Trimble, 
41  Cal.  536),  or  by  the  judgment  of  a  court 
(McGrath  v.  Wallace,  85  Cal.  622;  24  Pac. 
793),  and  even  against  a  tenant  in  posses- 
sion, although  the  landlord  was  not  a 
party.  Spotts  v.  Hanley,  85  Cal.  155;  24 
Pac.  738.  But  the  mere  commencement  of 
a  suit,  afterwards  abandoned,  does  not 
disturb  the  possession  (Breon  v.  Robrecht, 
lis  Cal.  469;  62  Am.  St.  Rep.  247;  50  Pac. 
689;  51  Pac.  33),  nor  is  the  possession  in- 
terrupted, where  a  judgment  is  not  exe- 
cuted; there  must  be  an  actual  entry  under 
the  judgment.  Carpenter  v.  Natoma  Water 
etc.  Co.,  63  Cal.  616.  During  the  pendency 
of  an  action  affecting  the  title  to  the 
property,  no  new  right  can  be  acquired, 
because  during  that  period  the  risrht  of 
possession  is  sub  judice.  Kirsch  v.  Kirseh, 
113  Cal.  56;  45  Pac.  164;  Breon  v.  Ro- 
brecht, 118  Cal.  469;  62  Am.  St.  Rep.  247; 
50  Pac.  689;  51  Pac.  33. 

Presumption  as  to  continuance  of  status. 
The  rule  that  status,  once  established,  is 
presumed  to  continue  until  the  contrary 
appears,  applies  to  title;  and  when  once 
shown  to  exist  in  a  party,  he  need  not 
show  he  has  not  parted  with  it.  Metteer 
v.  Smith,  156  Cal.  572;  105  Pac.  735.  It 
must,  however,  be  shown,  where  there  have 
been  several  successive  occupants,  not  only 
that  the  occupation  was  unbroken,  but 
also  that  there  was  a  privity  of  estate  be- 
tween such  occupants  (People  v.  Klumpke, 
41  Cal.  263;  San  Francisco  v.  Fulde,  37 
Cal.  349;  99  Am.  Dec.  278);  but  it  need 
not  be  for  the  five  years  next  preceding  the 
commencement  of  the  action,  for,  when 
title  is  once  acquired,  it  exists  until  lost 
by  another  adverse  possession.  Cannon  v. 
Stockmon,  36  Cal.  535;  95  Am.  Dec.  205; 
Webber  v.  Clarke,  74  Cal.  11;  15  Pac.  431. 
This  is  on  the  theory  that  adverse  pos- 
session for  the  period  prescribed  in  the 
statute  operates  to  convey  a  complete 
title  to  a  party,  as  much  so  as  any  written 
conveyance;  and  such  a  title  is  not  only 
an  interest  in  the  land,  but  it  is  a  title 
of  the  highest  character,  the  absolute  do 
minion  over  it,  and  the  appropriate  mode 
of  conveying  it  is  by  deed.  Grattan  v. 
Wiggins,  23  Cal.  16;  Le  Roy  v.  Rogers,  30 
Cal.  229;  89  Am.  Dec.  88;  Arrington  v. 
Liseom,  34  Cal.  365;  94  Am.  Dec.  722; 
Cannon  v.  Stockmon,  36  Cal.  535;  95  Am. 
Dec.  205;  Owsley  v.  Matson,  156  Cal.  401; 
104  Pac.  983. 

Taxes  must  have  been  paid.  It  is  also 
essential  that  the  taxes  assessed  against 
the  property  shall  have  been  paid  by  the 
occupant.  Central  Pacific  R.  R.  Co.  v. 
Shackelford,  63  Cal.  261;  Unger  v.  Mooney,' 
63  Cal.  586;  49  Am.  Eep.  100. 


§  322      TIME  OF   COMMENCING   ACTIONS   FOR    RECOVERY    OF    REAL    PROPERTY.       170 


CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

Adverse  possession  not  presumed.  Possession 
is   presumed   to    be   in   subordination    to    the    legal 


title,  unless  it  be  admitted  by  the  opposing  party, 
or  found  as  a  fact  that  the  possession  was  ad- 
verse. Sharp  V.  Daugney,  33  Cal.  506.  See  note 
to  §  312,  ante. 


§  322.  Occupation  under  written  instrument  or  judgment,  when  deemed 
adverse.  When  it  appears  that  the  occvipant,  or  those  under  whom  he 
claims,  entered  into  the  possession  of  the  property  under  claim  of  title,  ex- 
clusive of  other  right,  founding  such  claim  upon  a  written  instrument,  as 
being  a  conveyance  of  the  property  in  question,  or  upon  the  decree  or  .iudg- 
ment  of  a  competent  court,  and  that  there  has  been  a  continued  occupation 
and  possession  of  the  property  included  in  such  instrument,  decree,  or  .judg- 
ment, or  of  some  part  of  the  property,  under  such  claim,  for  five  years,  the 
property  so  included  is  deemed  to  have  been  held  adversely,  except  that 
when  it  consists  of  a  tract  divided  into  lots,  the  possession  of  one  lot  is  not 
deemed  a  possession  of  any  other  lot  of  the  same  tract. 

Entry  not  under  written  instrument.    See  post,        document   should   not   be    void    on    its   face 

(Webber  v.  Clarke,  74  Cal.  11;  15  Pac. 
431;  Walsh  v.  Hill,  38  Cal.  481;  Wolf  skill 
V.  Malajowieh,  39  Cal.  276);  for  actual 
knowledge  that  the  instrument  is  void, 
under  which  the  entry  is  made  and  posses- 
sion held,  will  vitiate  the  claim.  Wilson  v. 
Atkinson,  77  Cal.  485;  11  Am.  St.  Eep.  299; 
20  Pac.  66.  Good  faith  in  the  occupant, 
an  actual  belief  that  he  has  a  good  right 
to  the  premises,  an  intent  to  hold  the  same 
against  all  the  world,  are  necessary  to  con- 
stitute occupancy  under  color  of  title. 
McCracken  v.  San  Francisco,  16  Cal.  591; 
Cannon  v.  Union  Lumber  Co.,  38  Cal.  672. 

Possession  founded  on  written  instru- 
ment. An  executory  contract,  the  consid- 
eration having  been  paid,  is  a  suflficient 
basis  of  a  claim  under  color  of  title  (Spect 
v.  Hagar,  65  Cal.  443;  4  Pac.  419);  and 
where  a  person  in  possession  is  an  in- 
truder, but  is  permitted  to  remain  in  pos- 
session under  written  contract  of  sale,  the 
nature  of  his  possession  is  thereby 
changed,  and  he  holds  under  claim  of 
title.  Love  v.  Watkins,  40  Cal.  547;  6  Am. 
Eep.  624.  A  vendee's  actual  possession  of 
the  land,  and  the  exercise  by  him  of  the 
usual  acts  of  ownership,  are,  in  law,  con- 
structive notice  of  his  claim  of  title,  al- 
though the  instrument  under  which  he 
claims  title  is  not  recorded  (Dutton  v. 
Warschauer,  21  Cal.  609;  82  Am.  Dec.  765; 
Talbert  v.  Singleton,  42  Cal.  390;  Moss  v. 
Atkinson,  44  Cal.  3;  Pacific  Mut.  Life  Ins. 
Co.  V.  Stroup,  63  Cal.  150) ;  and  the  subse- 
quent execution  of  a  conveyance  by  deed 
relates  back  to  the  date  of  the  contract, 
and  conveys  an  absolute  title,  notwith- 
standing the  fact  that  the  grantor,  subject 
to  the  contract,  and  before  the  convey- 
ance, mortgaged  the  premises  by  an  abso 
lute  deed  to  a  third  partv.  Pacific  Mut 
Life  Ins.  Co.  v.  Stroup,  63  Cal.  150;  Ar 
rington  v.  Liscom,  34  Cal.  365;  94  Am 
Dec.  722;  Cannon  v.  Stockmon,  36  Cal.  535; 
95  Am.  Dec.  205;  McManus  v.  O'Sullivan, 
48  Cal.  7;  Morris  v.  De  Celis,  51  Cal.  55. 
A  deed,  which  gives  color  of  title,  is  the 


§3i 

Legislation  §  322.  Enacted  March  11,  1873; 
based  on  Stats.  1850,  p.  344. 

Possession,  defined.  Actual  possession 
means  possession  accompanied  by  real  and 
effectual  enjoyment  of  the  property;  that 
possession  which  follows  subjection  of  the 
property  to  the  will  and  dominion  of  the 
claimant,  to  the  exclusion  of  others;  and 
it  must  be  evidenced  by  occupation  or 
cultivation,  or  other  appropriate  use,  ac- 
cording to  the  locality  and  character  of 
the  particular  premises.  W^olf  v.  Baldwin, 
19  Cal.  306;  Davis  v.  Perley,  30  Cal.  630; 
Polack  V.  McGrath,  32  Cal.  15.  Occupancy 
under  a  claim  of  right  must  be  deemed 
adverse.  Knight  v.  Cohen,  7  Cal.  App.  43; 
93  Pac.  396. 

Entry  under  color  of  title.  While  this 
section  does  not  make  a  written  instru- 
ment evidence  of  adverse  possession,  yet  it 
extends  the  adverse  possession  of  a  part 
to  the  whole  of  the  land  embraced  in  the 
instrument  (Christy  v.  Spring  Valley 
Water  Works,  97  Cal.  21;  31  Pac.  1110); 
but  an  entry  under  color  of  title  by  deed 
does  not  extend  the  actual  possession,  by 
construction  of  law,  beyond  the  limits  of 
the  tract  described  in  the  deed.  Davis  v. 
Perley,  30  Cal.  630.  Color  of  title  is  that 
which  in  appearance  is  title,  but  which  in 
reality  is  not  (Wilson  v.  Atkinson,  77  Cal. 
485;  11  Am.  St.  Rep.  299;  20  Pac.  66; 
Packard  v.  Moss,  68  Cal.  123;  8  Pac.  818); 
and  to  give  color  of  title,  the  conveyance 
must  be  good  in  form,  must  contain  a  de- 
scription of  the  property  and  profess  to 
convey  the  title,  and  be  duly  executed; 
containing  these  elements  or  requirements, 
it  will  give  color  of  title,  although  in  fact 
invalid  and  insufiicient  to  pass  title,  or 
actually  void  or  voidable  (Wilson  v.  At- 
kinson, 77  Cal.  485;  11  Am.  St.  Rep.  299; 
20  Pac.  66;  Packard  v.  Moss,  68  Cal.  123; 
8  Pac.  818;  Reynolds  v.  Lincoln,  73  Cal. 
191;  14  Pac.  674;  Silvarer  v.  Hansen,  77 
Cal.  579;  20  Pac.  136;  Kockemann  v. 
Bickel,  92  Cal.  665;  28  Pac.  686);  but  the 


171      OCCUPATION  UNDER  WRITTEN  INSTRUMENT,  WHEN  DEEMED  ADVERSE.       §  322 


measure  of  the  wrongful  possession,  and, 
when  adverse  possession  ripens  into  title, 
it  fixes  the  extent  of  the  right  acquired. 
Packard  v.  Moss,  GS  Cal.  123;  8  Pac.  818. 
A  deed,  void  for  uncertainty  of  descrip- 
tion, gives  right  of  title  to  one  occupying 
under  it  in  good  faith  (Trvon  v.  Huntoon, 
67  Cal.  325;  7  Pac.  741);  "but  a  deed  exe- 
cuted in  a  representative  capacity,  with- 
out authority,  does  not  (McNeil  v.  First 
Couf^regatioiial  Society,  66  Cal.  105;  4  Pac. 
1096) ;  nor  does  a  deed  by  partners,  to  a 
copartner,  of  the  copartnership  lands,  as 
such  conveyance  does  not  change  the  na- 
ture of  the  possession.  Allen  v.  McKay, 
139  Cal.  94;  72  Pac.  713.  A  tax  deed,  iia- 
valid  as  a  conveyance  of  title,  is  sufficient 
to  rJive  color  of  title  (Kockemann  v. 
Bickel,  92  Cal.  665;  28  Pac.  6S6;  Wilson 
V.  Atkinson,  77  Cal.  485;  11  Am.  St.  Rep. 
299;  20  Pac.  66),  and,  although  void  on  its 
face,  is  a  written  instrument,  within  the 
meanin'J  of  this  section.  Wilson  v.  Atkin- 
son, 77  Cal.  485;  11  Am.  St.  Eep.  299;  20 
Pac.  66.  A  tax  deed  is  void  on  its  face, 
where  it  contains  a  recital  that  land  was 
"aesessed  to  A.  B.,  and  all  owners  and 
claimants  known  and  unknown."  Grimm  v. 
O'Conuel],  54  Cal.  522;  Hearst  v.  Eggle- 
stone,  55  Cal.  365;  Wilson  v.  Atkinson,  77 
Cal.  485;  11  Am.  St.  Rep.  299;  20  Pac.  66. 
A  swamp-land  certificate,  where  entry  is 
made  under  it  in  good  faith,  gives  color  of 
title,  and  entry  is  under  color  of  title. 
Goodwin  V.  McCabe,  75  Cal.  584;  17  Pac. 
705.  The  actual  possession  essential, 
under  this  section  and  §  323,  post,  to  sus- 
tain title  by  adverse  possession,  when  such 
title  is  founded  upon  a  written  instrument, 
is  required  of  one  invoking  the  benefit  of 
the  McEnerney  Act.  Lofstad  v.  Murasky, 
152  Cal.  64;  91  Pac.  1008. 

Possession  founded  on  judgment  of 
court.  "The  decree  or  judgment  of  a  com- 
petent court,"  mentioned  in  this  section,  is 
a  decree  or  judgment  adjudging  that  a 
party,  or  his  grantor,  was  the  owner  or 
seised  of  some  estate  in  the  lands.  Pack- 
ard v.  Johnson,  2  Cal.  Unrep.  365;  4  Pac. 
632.  A  void  judgment  is  not  sufficient  to 
establish  a  claim  of  title  (King  v.  Rand- 
lett,  33  Cal.  318);  but  a  sheriff's  deed, 
under  a  void  judgment,  may  give  color  of 
title.  Packard  v.  Johnson,  2  Cal.  Unrep. 
365;  4  Pac.  632;  Packard  v.  Moss,  68  Cal. 
123;  8  Pac.  818;  contra,  Bernal  v.  Gleim, 
33  Cal.  668.  A  sheriff's  deed,  under  judg- 
ment repular  on  its  face,  is  color  of  title, 
within  this  statute.  Webber  v.  Clarke,  74 
Cal.  11;  15  Pac.  431;  Packard  v.  Moss,  68 
Cal.  123;  8  Pac.  818;  Russell  v.  Harris,  38 
Cal.  426;  99  Am.  Dec.  421;  Jones  v.  Gillis, 
45  Cal.  541.  One  who  enters  in  good  faith, 
under  a  sheriff's  deed,  not  void  upon  its 
face,  made  in  pursuance  of  a  judgment  of 
the  superior  court,  and  regular  in  form, 
does  so  under  color  of  title.  Gregorv  v. 
Kavnes,  13  Cal.  591;  Webber  v.  Clarke,  74 
Cal.  11;  15  Pac.  431. 


When  adverse  possession  of  part  treated  as  of 
whole.  See  notes  1'.^  Am.  Dec.  357;  12')  Am.  St. 
Kep.  302. 

Possession  taken  and  held  through  mistake  oi 
ignorance.  See  notes  24  Am.  St.  Kep.  383;  15 
Ann.  Cas.  827  ;  Ann.  Caa.  1912A,  450  ;  21  L.  R.  A. 
830;   33   L.  K.  A.    ( N.   S.)    923. 

Notoriety  essential  to  adverse  possession.    See 

note   2H    Am.    St.   Kep.    1.58. 

Color  of  title.  See  notes  88  Am.  St.  Rep.  702; 
15   L.    i;.   A.    (  N.   S.)    1  178. 

Quitclaim  deed  as  color  of  title  for  purposes  of 
p-i verse  possession.  See  note  4  L.  R.  A.  (N.  S.) 
776. 

Invalid  tax  deed  as  color  of  title.  See  notes  11 
L.  K.  A.   (N.  S.)   772;  27  L.  R.  A.   (N.  S.)   340. 

CODE  COMMISSIONERS'  NOTE.  Slats.  1850, 
p.  343. 

1.  Entering  under  claim  of  title.  The  object 
of  this  section  is  to  define  accurately  under  what 
conditions  a  possession  shall  be  deemed  adverse 
when  the  party  enters  under  a  claim  of  title 
founded  upon  a  written  instrument,  judgment,  or 
decree.  The  person  relying  upon  this  section,  in 
aid  of  his  possession,  must  show  that  he  entered 
not  only  under  a  claim  of  title,  but  that  it  was 
exclusive  of  any  other  right.  Pigg  v.  Mayo,  39 
Cal.  2n2. 

2.  Adverse  possession  of  predecessor.  Posses- 
sion to  be  continuous.  An  adverse  possession  for 
five  years  must  be  continuous  in  the  party  who 
is  the  first  adverse  possessor,  or  in  him  and  his 
grantees,  in  order  lo  acquire  a  perfect  title.  And 
an  adverse  possessor  cannot  add  to  his  own  pos- 
session that  of  the  one  who  preceded  him,  when 
he  did  not  enter  into  possession  under  or  through 
the  one  who  preceded.  Adverse  possession  must 
be  actual,  not  an  assertion  of  possession  by  words 
or  an  action,  and  if  the  continuity  is  broken,  either 
by  fraud  or  by  a  wrongful  entry,  the  protection 
afforded  by  the  statute  of  limitations  is  destroyed. 
San  Francisco  v.  Fulde,  37  Cal.  349;  99  Am.  Dec. 
278. 

3.  Adverse  possession  may  be  at  any  time  prior 
to  action,  not  for  five  years  next  preceding  ac-. 
tion.  The  purchase  of  an  outstanding  adverse 
claim  for  the  purpose  of  quieting  title  to  land  by 
one  in  possession  claiming  adversely  to  all  others, 
does  not  estop  the  purchaser  from  setting  up  the 
statute  against  a  third  party.  An  adverse  pos- 
sessor for  five  years  acquires  a  fee-simple  title  to 
the  land  so  held.  Adverse  possession  need  not  be 
for  the  five  years  next  preceding  the  action ;  an 
adverse  continuous  possession  for  five  years  at 
any  time  prior  to  the  commencement  of  the  ac- 
tion being  suflReient.  A  title  once  acquired  by 
adverse  possession  for  five  years  continues  perfect 
until  conveyed  by  the  possessor,  or  until  lost  by 
another  adverse  possession  for  five  years.  Cannon 
V.  Stockmon,  36  Cal.  535;  95  Am.  Dec.  205.  See 
also,  as  to  adverse  possession,  Arrington  v.  Lis- 
com,  34  Cal.  365;  94  Am.  Dec.  722. 

4.  Effect  of  creation  of  easement  on  adverse 
possession.  The  creation  of  an  easement  upon 
land  does  not  prevent  the  statute  from  being  set 
in  motion  and  running  in  favor  of  a  party  enter- 
ing upon  and  claiming  the  soil  upon  which  the 
easement  has  been  imposed,  adversely  to  the  gran- 
tor of  the  easement.  San  Francisco  v.  Calder- 
wood.  31  Cal.  585:  91  Am.  Dec.  542. 

5.  Adverse  possession.  Case.  A  was  in  pos- 
session of  land  five  years,  under  claim  of  title. 
B  and  C.  and  their  grantors,  during  this  time, 
had  a  perfect  title  to  the  land.  They  sued  D 
and  others  to  recover  possession  of  it,  but  did  not 
make  A  a  party  to  the  action.  B  and  C,  and 
their  assigns,  recovered  judgment,  and,  after  five 
years  had  run.  the  sheriff  turned  A  out  of  pos- 
session under  a  writ  of  restitution,  issued  on  the 
judgment,  and  placed  B  and  C  in  possession.  The 
court  held  that  the  title  of  A,  by  adverse  posses- 
sion, was  not  impaired  bv  this  entrv  of  B  and 
C.  See  Le  Roy  v.  Rogers',  30  Cal.  230;  89  Am. 
Dec.  88. 

6.  Adverse  entry  upon  constructive  possession. 
Adverse  possession  may  be  acquired  to  part  of  a 
tract  of  land  while  the  owner  of  the  true  title  is 
in  the  actual  possession  of  the  other  part.  Ac- 
tual possession  of  a  part,  with  constructive  pos- 
session  of   the    rest,    will   not   prevent   the    statute 


§  323   TIME  OF  COMMENCING  ACTIONS  FOR  RECOVERY  OF  REAL  PROPERTY.   172 


of  limitations  from  running  in  favor  of  one  who 
enters  adversely  upon  the  constructive  possession. 
Davis  V.  Perley,  30  Cal.  630. 

7.  Adverse  possession  of  grantor  against  gran- 
tee. When  a  grantor  takes  adverse  possession 
at  land  granted  by  him,  and  holds  continuous  ad- 
verse possession  for  the  statutory  period,  he  may 
set  up  the  statute  of  limitations  against  the  gran- 
tee. Franklin  v.  Borland,  28  Cal.  175;  87  Am. 
Dec.  111. 

8.  Division  lines.  As  to  location  of  division 
lines,  adverse  possession  may  establish  a  division 
boundary  between  adjacent  owners,  although  it 
may  not  be  the  boundary  specified  in  the  deeds, 
if  the  owners  have  acquiesced  therein  for  the 
length  of  time  prescribed  by  the  statute  of  limi- 
tations as  a  bar  to  the  right  of  entry  upon  real 
property.     Sneed  v.  Osborn,  25  Cal.  619. 

9.  Purchase  at  irregular  sale.  From  lapse  of 
time  and  acquiescence  in  the  possession  of  the 
purchaser,  the  regularity  of  a  sale  under  a  power 
may  be  inferred,  and  a  presumption  indulged  in, 
that  due  notice  thereof,  as  required  by  the  power, 
was  given.  Perfect  title  may  be  acquired  by  ad- 
verse possession  for  the  statutory  time.  Simson 
V.  Eckstein,  22  Cal.  580. 

10.  Adverse  possession  under  claim  of  title. 
It  was  held  that  the  statute  of  limitations  runs 
only  in  favor  of  parties  in  possession  claiming 
title  adversely  to  the  whole  world,  and  not  in 
favor  of  those  who  assert  the  title  to  be  in  others. 
If  it,  therefore,  never  runs  in  favor  of  the  plain- 
tiff, his  grantees  are  in  no  better  position.  To 
render  possession  adverse,  so  as  to  set  in  motion 
the  statute  of  limitations,  it  must  be  accompanied 
with  a  claim  of  title,  and  this  title,  when  founded 
"upon  a  written  instrument  as  being  a  convey- 
ance of  the  premises,"  must  be  asserted  by  the 
occupant  in  good  faith,  in  the  belief  that  he  has 
pood  right  to  the  premises  against  all  the  world. 
The  claim  must  be  absolute,  not  dependent  upon 
any  contingencies,  and  must  be  "exclusive  of  any 
other  right."  And  to  render  the  adverse  posses- 
sion  thus   commenced  effectual   as   a   bar   to   a   re- 


covery by  the  true  owner,  the  possession  must 
continue  uninterrupted  for  five  years,  under  such 
claim.  When  parties  assert,  either  by  declara- 
tion or  by  conduct,  the  title  to  property  to  be  in 
others,  the  statute,  of  course,  cannot  run  in  their 
favor.  Their  possession,  under  such  circumstances, 
is  not  adverse.  McCracken  v.  San  Francisco,  16 
Cal.  635. 

11.  Adverse  possession  under  a  claim  of  title. 
It  was  held,  to  constitute  a  prescription  by  Span- 
ish law,  or  a  foundation  for  adverse  possession 
at  common  law,  the  instrument  under  which  the 
occupant  entered  and  claims  the  premises  must 
purport  in  its  terms  to  transfer  the  title, — must 
be  such  as  would,  in  fact,  pass  the  title  had  it 
been  e.xecuted  by  the  true  owner,  and  in  proper 
form,  with  the  exception,  perhaps,  of  a  contract 
to  convey  after  payment  of  the  consideration;  and 
the  occupant  must  have  entered  under  it  in  good 
faith,  in  the  belief  that  he  had  a  right  to  the 
premises,  and  with  the  intention  to  hold  them 
against  the  world.  The  possession  must  have 
been  adverse  in  its  inception,  and  during  its  con- 
tinuance.    Nieto  V.  Carpenter,  21  Cal.  490. 

12.  Two  kinds  of  adverse  possession.  Adverse 
possession  is  of  different  kinds:  1.  Where  the 
possession  is  taken  by  the  bow  and  spear,  with- 
out color  of  title,  but  with  the  intent  to  claim 
the  fee,  exclusive  of  any  other  right,  and  hold  it 
against  all  comers.  2.  W^here  the  possession  is 
taken  under  a  claim  of  title  founded  upon  a  writ- 
ten instrument,  as  a  conveyance  or  judgment  of 
a  court,  etc.  Either  of  these  kinds  of  adverse 
possession  is  sufficient  to  set  the  statute  in  mo- 
tion. See  the  differences  between  the  rights  ac- 
quired under  them,  discussed  in  the  opinion  of 
the  court.     Kimball  v.  Lohmas,  31  Cal.  154. 

13.  Persons  excepted  from  provisions  of  the 
statute.  Strici  construction  of  the  statute  of 
limitations  formerly  required,  etc.  See  note  to 
§  312,  ante,  case  of  Tynan  v.  Walker,  35  Cal. 
635;  95  Am.  Dec.  152. 

14.  Generally.    See  note  to  §  312,  ante. 


§  323.  What  constitutes  adverse  possession  under  written  instrument  or 
judgment.  For  the  purpose  of  constituting  an  adverse  possession  by  any 
person  claiming  a  title  founded  upon  a  written  instrument,  or  a  judgment 
or  decree,  land  is  deemed  to  have  been  possessed  and  occupied  in  the  follow- 
ing cases : 

1.  Where  it  has  been  usually  cultivated  or  improved; 

2.  Where  it  has  been  protected  by  a  substantial  inclosure ; 

3.  Where,  although  not  inclosed,  it  has  been  used  for  the  supply  of  fuel, 
or  of  fencing-timber  for  the  purposes  of  husbandry,  or  for  pasturage,  or  for 
the  ordinary  use  of  the  occupant ; 

4.  Where  a  known  farm  or  single  lot  has  been  partly  improved,  the  por- 
tion of  such  farm  or  lot  that  may  have  been  left  not  cleared,  or  not  inclosed 
according  to  the  usual  course  and  custom  of  the  adjoining  country,  shall  be 
deemed  to  have  been  occupied  for  the  same  length  of  time  as  the  part  im- 
proved and  cultivated. 


Legislation  §  323.  Enacted  March  11,  1872; 
based  on  Stats.  1850,  p.  344. 

What  constitutes  adverse  possession 
•under  written  instrument.  This  section 
defines  adverse  possession,  but  it  does  not, 
in  itself,  define  the  consequences.  Hagely 
V.  Hagely,  68  Cal.  34S;  9  Pac.  305.  A  con- 
veyance, by  a  partnership  in  possession,  to 
one  of  the  copartners,  does  not  change  the 
character  of  the  possession  (Allen  v.  Mc- 
Kay, 139  Cal.  94;  72  Pac.  713);  and  a  mar- 
ried woman,  without  color  of  title,  and  not 
living  separate  and  afjart  from  her  hus- 
band, cannot  acquire  real  property  as  her 


separate  estate  by  adverse  possession. 
Mattes  V.  Hall,  21  Cal.  App.  552;  132  Pac. 
295.  An  entry  under  a  deed  from  the 
party  in  possession,  is  strong  evidence  of 
adverse  possession  (Andrus  v.  Smith,  133 
Cal.  78;  65  Pac.  320;  Unger  v.  Mooney,  63 
Cal.  586;  49  Am.  Rep.  100);  and  an  entry 
under  a  conveyance  from  a  purchaser  at 
a  tax  sale,  although  the  tax  deed  has  not 
issued,  brings  the  party  within  the  provis- 
ions of  this  section,  if  possession  is  re- 
tained for  five  vears.  Millett  v.  Lagomar- 
sino.  107  Cal.  "l02;  40  Pac.  25.  A  void 
tax  deed,  while  not  proof  of  adverse  title, 


173  ADVERSE  POSSESSION  UNDER  WRITTEN  INSTRUMENT  OR  JUDGMENT.       §  323 


is  admissible  in  evidence,  under  this  sec- 
tion. Simmons  v.  McCarthy,  128  Cal.  455; 
60  Pac.  1037.  One  conveying  by  quitclaim 
deed,  and  thereafter  takinjj  possession, 
which  he  holds  adversely  for  five  years, 
becomes  the  absolute  owner  of  the  title. 
Baker  v.  Clark,  12S  Cal.  181;  60  Pac.  677. 
One  taking  possession  under  a  deed  and 
decree  of  distribution  holds  under  color 
of  title  (Owsley  v.  Matson,  156  Cal.  401; 
104  Pac.  983);  as  does  also  one  taking 
under  a  deed  from  his  wife,  to  property 
belonging  to  her,  but  impressed  with  the 
homestead  character;  and  such  title,  by 
adverse  possession,  may  extinguish  the 
homestead.  Donnelly  v.  Tregaskis,  154 
Cal.  261;  97  Pac.  421.  A  mere  knowledge 
of  a  defect  in  the  title,  or  an  offer  to  buy 
an  outstanding  title,  after  title  has  been 
acquired  by  adverse  possession,  does  not 
break  the  continuity  of  the  adverse  pos- 
session. Montgomerv  &  Mullen  Lumber 
Co.  V.  Quimby,  164  Cal.  250;  12S  Pac.  402. 
To  invoke  the  benefit  of  the  McEnerney 
Act,  the  actual  possession  required  is  the 
same  as  that  required  to  sustain  title  by 
adverse  possession,  when  such  title  is 
founded  upon  a  written  instrument.  Lof- 
stad  V.  Murasky,  152  Cal.  64;  91  Pac.  1008. 

Possession  required  of  plaintiff  under 
the  McEnerney  Act.     See  note  ante,  §  322. 

Cultivation  and  improvement.  Eesidence 
upon  the  property  is  not  necessary.  Bar- 
stow  V.  Newman,  34  Cal.  90;  Goodrich  v. 
Van  Landigham,  46  Cal.  601;  Kelly  v. 
Mack,  49  Cal.  523;  Webber  v.  Clarke,  74 
Cal.  11;  15  Pac.  431;  Andrus  v.  Smith,  133 
Cal.  78;  65  Pac.  320. 

Protecting  inclosures.  An  inclosure  is 
not  necessary,  where  the  land  is  held  in 
subjection  to  the  will  and  domination  of 
the  claimant,  manifested  in  an  appropriate 
manner  (Hicks  v.  Coleman,  25  Cal.  122;  85 
Am.  Dec.  103;  McCreery  v.  Everding,  44 
Cal.  246;  Sheldon  v.  Mull,  67  Cal.  299;  7 
Pac.  710;  Webber  v.  Clarke,  74  Cal.  11; 
15  Pac.  431;  Andrus  v.  Smith,  133  Cal.  78; 
65  Pac.  320);  but,  unless  there  is  some  act 
manifested  to  show  the  domination  of  the 
claimant,  a  mere  claim  will  not  constitute 
adverse  possession.  De  Frieze  v.  Quint,  94 
Cal.  653;  28  Am.  St.  Rep.  151;  30  Pac.  1, 
Where  the  inclosure  is  the  only  evidence 
of  adverse  possession  to  countervail  the 
legal  title,  there  must  be  a  real  and  sub- 
stantial inclosure  and  actual  occupancy. 
Polack  v.  McGrath,  32  Cal.  15;  Wolf  v. 
Baldwin,  19  Cal.  306;  Garrison  v.  Sampson, 
15  Cal.  93;  Jones  v.  Hodges,  146  Cal.  160; 
79  Pac.  869;  Mattes  v.  Hall,  21  Cal.  App. 
552;  132  Pac.  295.  Whether  natural  bar- 
riers are  sufficient  to  serve  as  a  part  of  the 
inclosure,  is  a  question  of  fact  for  the 
jury.  Goodwin  v.  McCabe.  75  Cal.  584;  17 
Pac.  705;  Brumagim  v.  Bradshaw,  39  Cal. 
24;  Southmayd  v.  Hanley,  45  Cal.  101; 
Pierce  v.  Stuart,  45  Cal.  280.  Where  land 
is  fenced  in  connection  with  other  land 
owned  by  the  claimant,  continuous  occu- 
pancy   may   ripen    into   an    adverse    claim 


(Packard  v.  Johnson,  2  Cal.  Unrep.  365; 
4  Pac.  632);  and  also  where  two  adjoining 
owners  in  severalty,  by  mutual  consent,  in- 
clude both  tracts,  with  a  fence  around  the 
exterior  boundaries.  Reav  v.  Butler,  95 
Cal.  206;  30  Pac.  208.  The  protecting  in- 
closure need  not  be  separately  confined, 
but  the  land  may  be  contained  in  an  in- 
closure with  other  lands.  Botsford  v.  Ey- 
raud,  148  Cal.  431;  83  Pac.  1008. 

Use  for  fuel-supply.  An  inclosure  is  not 
required,  where  the  land  is  in  some  way 
subject  to  the  will  of  the  occupant  claim- 
ing; thus,  the  use  of  land  for  firewood, 
and  the  like,  is,  by  this  section,  evidence 
of  possession;  but  the  mere  cutting  up  of 
dead  timber,  or  the  cutting  down  of  trees, 
and  the  removal  thereof  from  the  land,, 
does  not,  of  itself,  establish  adverse  posses- 
sion. Kimball  v.  Stormer,  65  Cal.  116; 
3  Pac.  408. 

Use  for  pasturage.  In  a  grazing- 
country,  herding  sheep  upon  the  land  is  a 
use  in  the  ordinary  and  appropriate  way, 
according  to  the  particular  locality  and 
the  quality  of  the  property  (Andrus  v. 
Smith,  133Y'al.  78;  65  Pac.  320;  Webber  v. 
Clarke,  74  Cal.  11;  15  Pac.  431);  and 
pasturage,  without  inclosure,  may  consti- 
tute adverse  possession  (Webber  v.  Clarke, 
74  Cal.  11;  15  Pac.  431),  even  where  this 
use  is  only  during  the  grazing  season. 
(Coryell  v.  Cain,  16  Cal.  567;  Brumagim  v. 
Bradshaw,  39  Cal.  24;  English  v.  Johnson, 
17  Cal.  107;  76  Am.  Dec.  574;  Montgomery 
&  Mullen  Lumber  Co.  v.  Quimby,  164  Cal. 
250;  128  Pac.  402);  but  it  must  be  used 
continuously  and  uninterruptedly  during 
the  pasturing  season,  at  least  substan- 
tiallv.  Mattes  v.  Hall,  21  Cal.  App.  552; 
132  Pac.  295. 

Ordinary  use.  A  use  in  the  ordinary 
and  appropriate  way  is  suflScient  adverse 
possession.  Coryell  v.  Cain,  16  Cal.  567; 
English  v.  Johnson,  17  Cal.  107;  76  Am. 
Dec.  574;  Brumagim  v.  Bradshaw,  39  Cal. 
24;  Webber  v.  Clarke,  74  Cal.  11;  15  Pac. 
431;  Kockemann  v.  Bickel,  92  Cal.  665;  28 
Pac.  686.  The  use  of  a  town  lot  in  the 
"ordinary  way,"  although  not  fenced  with 
a  substantial  inclosure,  is  sufficient,  under 
the  third  subdivision  of  this  section 
(Kockemann  v.  Bickel,  92  Cal.  665;  28 
Pac.  686);  and  the  cultivation  of  a  town 
lot,  which  has  been  fenced  in  the  usual 
manner,  and  shade-trees  planted  along  the 
fence,  is  not  necessary  to  create  title  by 
adverse  possession.  Gray  v.  Collins,  42  Cal. 
152.  The  cutting  of  grass  upon  lands 
theretofore  inclosed,  and  in  the  possession 
of  another,  is  not,  of  itself,  evidence  of 
possession  of  the  land  on  which  it  grows. 
Page  V.  Fowler,  37  Cal.  100. 

Occupancy  of  part  of  tract.  The  actual 
possession  of  part  of  a  tract  of  land,  by 
a  party  who  entered  under  color  of  title, 
in  good  faith,  claiming  the  whole  under  a 
deed  or  written  instrument,  or  a  decree  or 
judgment  of  a  court  of  competent  juris 
diction,  describing  the  land  by  metes  and 


§  324   TIME  OF  COMMENCING  ACTIONS  FOR  RECOVERY  OF  REAL  PROPERTY.   174 


bounds,  or  other  certain  and  definite  de- 
scription, is  not  limited  to  that  portion  in 
his  actual  possession,  but  his  possession  is 
extended  hy  construction  to  the  entire 
tract,  where  the  unoccupied  portion  is  not 
in  the  actual  possession  of  another  party 
at  the  time  of  entry  (Hicks  v.  Coleman,  25 
Cal.  122;  85  Am.  Dec.  103;  and  see  Plume 
V.  Seward,  4  Cal.  94;  60  Am.  Dec.  599; 
Attwood  V.  Fricot,  17  Cal.  37;  76  Am.  Dec. 
567;  76  Am.  Dec.  567;  English  v.  Johnson, 
17  Cal.  107;  76  Am.  Dec.  574;  Keane  v. 
Cannovan,  21  Cal.  291;  82  Am.  Dec.  738; 
Eussell  V.  Harris,  38  Cal.  426;  99  Am.  Dec. 
421) ;  but  where  a  party  enters  under  a 
deed  from  one  in  the  actual  possession  of 
only  a  small  portion  of  the  land,  and  he 
knows  that  his  grantor  has  no  title  or 
claim  of  title  to  the  remainder,  he  does 
not  thereby  acquire  constructive  posses- 
sion of  anything  but  that  which  was  in  the 
possession  of  his  grantor.  Walsh  v.  Hill, 
38  Cal.  481;  Cannon  v.  Union  Lumber  Co., 
38  Cal.  672.  Where,  however,  the  entry  is 
made  in  good  faith  by  the  grantee,  who 
believes  that  he  has  acquired  a  valid  title 
to  the  whole  tract,  he  establishes  a  posses- 
sion co-extensive  with  the  boundaries  of 
the  deed,  except  as  to  others  in  actual 
possession.  Wolfskill  v.  Malajowich,  39 
Cal.  276. 

Constructive  possession.  Good  faith  is  a 
necessary  element  to  obtain  constructive 
possession  and  entry  under  color  of  title 
(Kile  V.  Tubbs,  23  Cal.  431;  Walsh  v.  Hill, 
38  Cal.  481;  Cannon  v.  Union  Lumber  Co., 
38  Cal.  672;  Wolfskill  v.  Malajowich,  39 
Cal.  276;  Wilson  v.  Atkinson,  77  Cal.  485; 
11  Am.  St.  Rep.  299;  20  Pac.  66);  so  that 
where  a  party  knows  the  instrument  to  be 
absolutely  void,  he  cannot  found  a  claim 
under  color  of  title  upon  it,  and  claim 
constructive  possession.  Wilson  v.  Atkin- 
son, 77  Cal.  485;  11  Am.  St.  Eep.  299;  20 
Pac.  66.  The  statute  distinguishes  be- 
tween an  entry  made  without  any  right, 
and  one  made  under  color  or  claim  of  title. 
Walsh  V.  Hill,  38  Cal.  481.  There  can  be 
no  constructive  possession  without  color  of 
title.  Mattes  v.  Hall,  21  Cal.  App.  552;  133 
Pac.  295.     As  between  a  mere  naked  tres- 

§  324.  Premises  actually  occupied  under  claim  of  title  deemed  to  be  held 
adversely.  Where  it  appears  that  there  has  been  an  actual  continued  occu- 
pation of  land,  under  a  claim  of  title,  exclusive  of  any  other  rig:ht,  but  not 
founded  upon  a  written  instrument,  judgment,  or  decree,  the  land  so  actually 
occupied,  and  no  other,  is  deemed  to  have  been  held  adverselv. 


passer  and  the  actual  owner  of  the  title, 
who  afterwards  enters  on  a  tract,  claiming 
the  whole  thereof,  the  constructive  posses- 
sion acquired  by  the  trespasser  is  overcome 
by  that  of  the  true  owner.  Semple  v.  Cook, 
50  Cal.  26.  The  actual  ouster  of  the 
true  owner  from  some  part  of  the  land 
is  necessary,  in  order  that  an  intruder 
may  obtain  actual  possession.  Kimball  v. 
Stormer,  65  Cal.  116;  3  Pac.  408;  Labory 
V.  Los  Angeles  Orphan  Asylum,  97  Cal. 
270;  32  Pac.  231.  An  entry  under  a  sher- 
iff's deed  which  is  regular  on  its  face,  and 
possession  thereunder,  with  actual  occu- 
pancy of  a  part  of  the  land,  extends  the 
possession  of  the  grantee  to  the  bounds  of 
his  deeds  (Russell  v.  Harris,  38  Cal.  426; 
99  Am.  Dec.  421);  and  the  actual  posses- 
sion by  an  heir,  of  the  estate  of  his  an- 
cestor, claiming  the  whole  estate,  extends 
his  possession,  by  construction,  to  the 
boundaries  of  the  estate  (Dougherty  v. 
Miles,  97  Cal.  568;  32  Pac.  597);  but  a 
party  claiming,  under  title,  two  tracts  of 
land,  cannot  establish  constructive  posses- 
sion of  both  by  proving  possession  of  a 
portion  of  one.  Kimball  v.  Stormer,  65  Cal. 
116;  3  Pac.  408. 

What  is  a  sufficient  plea.  This  section 
need  not  be  pleaded;  it  is  only  necessary 
to  plead  the  section  which  establishes  the 
limitation,  and  the  facts  which  show  ad- 
verse holding  may  be  given  in  evidence 
under  the  plea.  Hagely  v.  Hagely,  68  Cal. 
348;  9  Pac.  305;  Webber  v.  Clarke,  74  Cal. 
11;  15  Pac.  431. 

Evidence  of  possession.  In  an  action  to 
quiet  title,  evidence  of  plaintiff's  actual 
possession  for  any  period,  under  claim  of 
ownership,  is  sufficient  evidence  of  his  title 
as  against  a  trespasser.  Morris  v.  Clarkin, 
156  Cal.  16;  103  Pac.  180. 

Adverse  possession  by  tenant  in  common.    See 

note  109  Am.  St.  Kep.  609. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850. 
p.  343.  A  pretended  possession  of  land  by  an  in- 
closure  which  is  not  substantial,  without  actual 
occupancy  of  any  portion  of  it,  cannot  constitute 
an  adverse  possession.  Borel  v.  Rollins,  30  Cal. 
408.  See,  for  adverse  possession,  Vassault  v. 
Seitz,  31  Cal.  225,  and  notes  to  §§  312.  322,  ante. 


Prescription,  title  by.    Civ.  Code,  §  1007. 

Legislation  8  324.  Enacted  March  11,  1873; 
based   on  Stats.   1850,   p.   344. 

Continual  occupation,  not  under  claim  of 
title.  The  assertion  of  the  right  of  posses- 
sion, whether  by  words  or  by  an  action,  is 
not  the  equivalent  of  possession  in  fact, 
for  the  purpose  of  the  statute  of  limita- 
tions; it  makes  no  difference,  in  respect  to 
the  operation  of  the  statute,  whether  the 


adverse  possession  commenced  or  termin- 
ated either  peaceably  or  forcibly;  and  as 
the  adverse  possession,  when  continued 
during  the  whole  period  of  the  statute, 
ripens  into  a  title  or  constitutes  a  perfect 
defense,  though  it  was  initiated  by  force 
or  fraud,  so  such  possession  may  be  inter- 
rupted by  the  same  means  as  those  by 
which  it  was  acquired.  San  Francisco  v. 
Fulde,  37  Cal.  349;   99  Am.  Dec.  278.     No 


175 


ADVERSE    POSSESSION    UNDER    CLAIM    OF    TITLE    NOT    WRITTEN. 


§325 


is  not  necessary  to  show  the  acquisition  of 
title  by  adverse  possession,  under  §  323, 
ante.  Larsen  v.  All  Persons,  16.3  Cal.  407; 
132Pac.  751. 

Occupancy  under  claim  of  title.     Actual 
oeeui>ancy,  adversely,  under  claim  of  title 
for  the  period  prescribed  by  this  section 
gives  absolute  authority,  and  bars  the  ri^ht 
of  recovery  (Baker  v.  Clark,  128  Cal.  181 
60  Pac.  677;   Arrington  v.  Liscom,  34  Cal 
365;    94    Am.    Dec.    722;    Cannon   v.   Stock 
mon,   36   Cal.   535;   95   Am.   Dec.   205;   Mc 
Cormack  v.  Silsby,  82  Cal.  72;  22  Pac.  874 
McGovern  v.  Mowry,  91  Cal.  38'd;  27  Pac 
746),  of  such  portion  as  is  actually  occu 
pied    (Mattes   v.   Hall,   21    Cal.    App.   552 
132   Pac.   295),  and  the  title   vests  in  the 
party  who   first  becomes  the  adverse  pos- 
sessor,  or   his   grantees   and   successors   in 
interest.    San  Francisco  v.   Fulde,  37   Cal. 
349;  99  Am.  Dec.  278. 

CODE  COMMISSIONERS'  NOTE.     Siats.  1850, 
p.  344.      See  notes  to  §§  312,  322,  323,  ante. 


claim  of  title,  without  actual  and  exclusive 
possession  for  the  period  prescribed  by 
statute,  creates  title  bv  prescription.  How- 
ell v.  Slauson,  83  Cal.  539;  23  Pac.  692; 
People  v.  Center,  66  Cal.  551;  5  Pac.  263; 
6  Pac.  481;  Berniaud  v.  Beecher,  71  Cal. 
38;  11  Pac.  802.  While  residence  is  not  in- 
dispensable to  possession,  yet  the  mere  sow- 
ing of  an  abandoned  road  with  grain  and 
grass,  and  the  grazing  of  cattle  thereon, 
does  not  give  adverse  possession  of  the 
roadway.  Watkins  v.  Lynch,  71  Cal.  21; 
11  Pac.  808.  The  adverse  possession  under 
this  and  the  succeeding  section  is  different 
from  that  required  of  one  who  claims 
under  a  written  instrument.  Cassin  v. 
Nicholson,  154  Cal.  497;  98  Pac.  190.  It 
is  not  necessary  that  the  prescriptive  right 
should  have  its  origin  in  a  grant  from  the 
owners  of  the  land,  or  by  agreement  with 
them.  Bashore  v.  Mooney,  4  Cal.  App.  276; 
87  Pac.  553.  Under  the  McEnerney  Act, 
to  prove  actual  and  peaceable  possession  it 

§  325.  What  constitutes  adverse  possession  under  claim  of  title  not  writ- 
ten. For  the  purpose  of  constituting  an  adverse  possession  by  a  person 
claiming  title,  not  founded  upon  a  written  instrument,  judgment,  or  decree, 
land  is  deemed  to  have  been  possessed  and  occupied  in  the  following  cases 
only: 

1.  Where  it  has  been  protected  by  a  substantial  inclosure. 

2.  Where  it  has  been  usually  cultivated  or  improved. 

Provided,  however,  that  in  no  case  shall  adverse  possession  be  considered 
established  under  the  provisions  of  any  section  or  sections  of  this  code,  un- 
less it  shall  be  shown  that  the  land  has  been  occupied  and  claimed  for  the 
period  of  five  years  continuously,  and  the  party  or  persons,  their  predeces- 
sors and  grantors,  have  paid  all  the  taxes,  state,  county,  or  municipal,  which 
have  been  levied  and  assessed  upon  such  land. 

are  no  equities  in  favor  of  a  person  seek- 
ing by  adverse  possession  to  acquire  title 
to  the  property  of  another.  Glowner  v. 
De  Alvarez,  10  Cal.  App.  194;  101  Pac.  432. 
The  right  to  take  water  from  a  stream,  as 
against  riparian  owners,  may  be  acquired 
by  prescription.  Arroyo  Ditch  etc.  Co.  v. 
Baldwin,  155  Cal.  280;  100  Pac.  874.  The 
actual  possession  of  property  required  to 
be  had  to  give  the  court  jurisdiction  under 
the  McEnerney  Act,  must  be  such  as  is 
necessary  to  sustain  title  by  adverse  pos- 
session, if  maintained  and  continued  for 
the  period  required.  Lofstail  v.  Murasky, 
152  Cal.  64;  91  Pac.  1008.  See  also  Larsen 
V.  All  Persons,  165  Cal.  407;  132  Pac.  751. 
If  a  claim  is  made  to  land  by  virtue  of  an 
adverse  possession  under  a  claim  of  title 
not  written,  no  other  land  than  that  actu- 
ally occupied  is  deemed  to  have  been  held 
adversely.  Los  Angeles  Interurban  Ry.  Co. 
V.  Montijo,  153  Cal.  15;  94  Pac.  97.  To 
constitute  actual  possession  of  land,  it  is 
not  necessary  that  actual  physical  occu- 
pancy by  the  owner  or  by  a  tenant  be 
shown  in  all  cases.  Vanderbilt  v.  All  Per- 
sons,   163    Cal.    507;    126    Pac.    158.     The 


Adverse  possession.    See  ante,  §  321. 

Legislation  §  325.  1.  Enacted  March  11,  1873; 
based  on  Stats.  1850,  p.  345. 

2.  Amended  by  Code  Amdts.  1877-78,  p.  99, 
adding  the  proviso  after  subd.  2. 

3.  Amendment  by  Stats.  1901,  p.  124;  un- 
constitutional.   See  note  ante,  §  5. 

Adverse  possession  under  claim  of  title 
not  written.  The  adverse  possession  re- 
quired under  this  and  the  preceding  sec- 
tion is  different  from  that  required  of  one 
who  claims  under  a  written  instrument. 
Cassin  v.  Nicholson,  154  Cal.  497;  98  Pac. 
190.  This  section  applies  only  in  cases 
Tvhere  there  is  a  contest  between  the  holder 
of  the  legal  title  and  a  party  claiming  to 
have  been  in  possession  for  five  years  ad- 
versely to  such  legal  title;  it  does  not 
apply  where  the  claimant  is  merely  pro- 
tecting his  possession  against  one  who 
entered  thereon  without  right  of  title. 
•Shanahan  v.  Tomlinson,  103  Cal.  89;  36 
Pac.  1009.  Under  this  section,  the  land 
must  have  been  protected  by  a  substantial 
inclosure,  or  usually  cultivated  or  im- 
proved. Los  Angeles  Interurban  Ry.  Co.  v. 
Jdontijo,   153   Cal.   15;   94  Pac.   97.     There 


§  325   TIME  OF  COMMENCING  ACTIONS  FOR  RECOVERY  OF  REAL  PROPERTY.   176 


tacking  of  possessions  is  not  permitted  in 
proving  title  by  adverse  possession.  Messer 
V.  Hibernia  Sav.  &  L.  Soc,  149  Cal.  122; 
84  Pac.  835.  The  possession  for  the  requi- 
site time  must  have  been  peaceable  and  un- 
disputed; and  such  is  not  its  nature  where 
the  title  and  the  right  of  possession  are 
then  being  actually  litigated;  the  period 
of  such  litigation  cannot  be  included  in 
adverse  possession.  Estate  of  Richards, 
154  Cal.  478;  98  Pac.  528.  The  adverse 
possession  of  community  property  by  a 
divorced  wife  does  not  begin  to  become 
prescriptive,  as  to  the  divorced  husband  or 
his  heirs,  in  the  absence  of  a  notice,  either 
actual  or  constructive,  imparting  knowl- 
edge of  the  hostilitv  of  her  possession. 
Tabler  v.  Peverill,  4  Cal.  App.  671;  88  Pac. 
994.  A  title  acquired  by  prescription  is 
good  until  extinguished,  conveyed,  or  lost. 
Strong  v.  Baldwin,  154  Cal.  150;  129  Am. 
St.  Eep.  149;  97  Pac.  178. 

Protection  by  substantial  inclosures. 
Protection  by  a  substantial  inclosure, 
either  by  itself  or  with  other  lands,  for 
the  period  of  five  years,  is  necessary  to 
give  a  title  by  adverse  possession  (Sanchez 
V.  Grace  M.  E.  Church,  114  Cal.  295;  46 
Pac.  2) ;  for,  where  there  is  neither  title 
nor  color  of  title,  there  is  no  presumption 
of  possession  (Mattes  v.  Hall,  21  Cal.  App. 
552;  132  Pac.  295);  but  where  land  thus 
inclosed  is  rented  by  the  claimant,  to  a 
tenant  who  subsequently  attorns,  without 
the  knowledge  of  the  claimant,  to  a  party 
to  whom  patent  has  issued,  and  the  pat- 
entee has  no  knowledge  of  the  pretensions 
or  possession  of  the  latter,  although  mak- 
ing due  inquiry,  the  subsequent  possession 
by  such  tenant  is  not  adverse  to  the  pat- 
entee. Thompson  v.  Felton,  54  Cal.  547. 
There  can  be  no  adverse  possession,  where 
land  has  not  been  protected  by  a  substan- 
tial inclosure,  and  not  cultivated  exclu- 
sively by  the  claimant,  and  taxes  not  paid 
by  him,  although  he  erected  improvements 
thereon.  O'Connor  v.  Fogle,  63  Cal.  9. 
That  property  is  protected  by  a  substantial 
inclosure,  and  that  one  claims  to  be  the 
owner,  is  sufficient  to  support  a  conclusion 
of  actual  possession.  Davis  v.  Crump,  162 
Cal.  513;  123  Pac.  294. 

Usually  cultivated  or  improved.  The 
lands  claimed  must  have  been  usually  cul- 
tivated or  improved  for  the  period  of  five 
years,  in  order  to  give  title  by  adverse 
possession.  Sanchez  v.  Grace  M.  E.  Church, 
114  Cal.  295;  46  Pac.  2;  O'Connor  v.  Fogle, 
63  Cal.  9.  The  lands  may  be  said  to  be 
usually  improved,  where  they  are  improved 
as  similar  property  is  improved.  Allen  v. 
McKav,  120  Cal.  332;  52  Pac.  828;  Gray  v. 
Walker,  157  Cal.  381;  108  Pac.  278.  If 
land  has  been  improved  as  contemplated 
by  this  section,  it  is  not  necessary  that  it 
be  either  cultivated  or  inclosed.  Gray  v. 
Walker,  157  Cal.  381;  108  Pac.  278. 

Payment  of  taxes.  The  payment,  by  the 
claimant,    of    the    taxes    assessed,    if    any, 


against  the  land,  must  be  shown,  since  the 
passage  of  the  amendment  of  1878.  O'Con- 
nor V.  Fogle,  63  Cal.  9;  Central  Pacific  R. 
R.  Co.  V.  Shackelford,  63  Cal.  261;  Unger 
V.  Mooney,  63  Cal.  586;  49  Am.  Rep.  100; 
Standard  Quicksilver  Co.  v.  Habishaw,  132" 
Cal.  115;  64  Pac.  113;  Allen  v.  McKay,  139 
Cal.  94;  72  Pac.  713.  The  provision  for 
the  payment  of  taxes  is  not  retroactive, 
and  did  not  affect  the  holdings  prior  to 
that  amendment  (Sharp  v.  Blankenship,  5& 
Cal.  2SS;  Johnson  v.  Brown,  63  Cal.  391; 
Central  Pacific  R.  R.  Co.  v.  Shackelford,. 
63  Cal.  261;  Heilbron  v.  Heinlen,  72  Cal. 
376;  14  Pac.  24;  Webber  v.  Clarke,  74  Cal. 
11;  15  Pac.  431;  Cook  v.  Cockins,  117 
Cal.  140;  48  Pac.  1025;  Lucas  v.  Provines,. 
130  Cal.  270;  62  Pac.  509;  Strong  v.  Bald- 
win, 154  Cal.  150;  129  Am.  St.  Rep.  149;  97 
Pac.  178),  which  introduced  a  new  element 
in  the  holding  of  land,  in  order  to  create  ad- 
verse possession  (Cook  v.  Cockins,  117  Cal. 
140;  48  Pac.  1025) ;  but  this  element  did  not 
affect  a  title  which  had  ripened  under  a 
former  law  (Sharp  v.  Blankenship,  59  Cal. 
288;  Webber  v.  Clarke,  74  Cal.  11;  15  Pac. 
431;  Woodward  v.  Paris,  109  Cal.  12;  41 
Pac.  781;  Lucas  v.  Provines,  130  Cal.  270; 
62  Pac.  509),  as  the  legislature  could  not 
take  away  such  title.  Arrington  v.  Liscom, 
34  Cal.  365;  94  Am.  Dec.  722;  Cannon  v. 
Stockmon,  36  Cal.  535;  95  Am.  Dec.  205; 
Langford  v.  Poppe,  56  Cal.  73;  Cook  v. 
Cockins,  117  Cal.  140;  48  Pac.  1025.  Pay- 
ment of  taxes  for  five  years  continuously 
is  essential  to  title  by  adverse  possession;, 
title  by  prescription  cannot  be  established,, 
if  the  owner  pays  the  taxes  for  the  fifth 
year.  Glowner  v.  De  Alvarez,  10  Cal.  App^ 
194;  101  Pac.  432;  People's  Water  Co.  v. 
Lewis,  19  Cal.  App.  622;  127  Pac.  506; 
Stanton  v.  Freeman,  19  Cal.  App.  464;  126 
Pac.  377.  Title  by  prescription,  turning 
upon  the  payment  of  taxes,  is  not  made  out, 
where  there  has  been  an  interruption  in 
the  payment  of  taxes  for  the  prescribed 
time.  Commercial  Nat.  Bank  v.  Schlitz,  6' 
Cal.  App.  174;  91  Pac.  750.  When  there  is 
no  tax  on  the  land,  by  reason  of  the  fact 
that  it  is  mortgaged  for  more  than  its 
value,  and  no  tax  was  paid  by  any  one, 
there  is  no  interruption  of  the  adverse 
possession.  Frederick  v.  Dickey,  91  Cal. 
358;  27  Pac.  742.  This  section  requires 
only  the  payment  of  taxes  which  have 
been  levied  and  assessed,  and,  nothing  to 
the  contrary  appearing,  it  will  be  presumed 
that  the  value  of  an  easement  on  or  over 
land  was  included  in  the  taxes  assessed 
against  the  land.  Smith  v.  Smith,  21  Cal. 
App.  378;  131  Pac.  890.  It  is  not  enough 
for  the  claimant  to  prove  that  he  paid  all 
the  taxes  on  land  owned  by  him,  for  the- 
defense  of  the  statute  of  limitations,  by 
adverse  possession,  admits  that  he  does  not 
own  the  land  (Ross  v.  Evans,  65  Cal.  439; 
4  Pac.  443) ;  nor  is  it  sufficient  that  the 
party  thought  or  supposed  that  he  was 
paying  taxes  upon  the  claimed  land.    B.ey- 


177 


ADVERSE    POSSESSION    UNDER    CLAIM    OF    TITLE    NOT    WRITTEN. 


§325 


nolds  V.  Willard,  80  Cal.  605;  22  Pac.  262; 
Standard  Quieksilver  Co.  v.  Ilabishaw,  132 
Cal.  115;  64  Pac.  113.  Reliance  upon  an- 
other, who  agreed  to  pay  the  taxes,  but 
failed  to  do  so,  will  not  relieve  the  claim- 
ant of  his  obligation.  Tuffree  v.  Polhenius, 
108  Cal.  670;  41  Pac.  806.  It  may  be,  if 
such  taxes  were  paid  by  someone  else,  that 
the  adverse  claimant  would  only  be  called 
on  to  prove  that  fact.  Ross  v.  Evans,  65 
Cal.  439;  4  Pac.  443.  Payment  by  the 
mortgagee  of  the  claimant  in  possession,  is 
payment  by  the  claimant.  Brown  v.  Clark, 
89  Cal.  196;  26  Pac.  801.  It  is  not  in- 
tended, however,  that  the  taxes  for  any 
one  3^ear  should  be  paid  more  than  once; 
where  the  land  claimed  is  assessed  both  to 
the  claimant  and  to  the  owner,  payment 
by  the  claimant  protects  his  title.  Cava- 
naugh  V.  Jackson,  99  Cal.  672;  34  Pac.  509. 
If  they  are  paid  by  the  legal  owner,  the 
subsequent  repayment  by  the  claimant  oc- 
cupying the  land  cannot  serve  to  ground 
or  maintain  adverse  possession.  Carpenter 
V.  Lewis,  119  Cal.  18;  50  Pac.  925;  and  see 
Cavanaugh  v.  Jackson,  99  Cal.  672;  34  Pac. 
509.  Where  the  adverse  claimant  pays  all 
the  taxes,  it  is  immaterial  that  the  pos- 
sessor of  the  legal  title  also  paid  them, 
Owsley  V.  Matson,  156  Cal.  401;  104  Pac. 
983.  The  payment  of  taxes  by  the  owner, 
who  has  procured  the  property  to  be 
assessed  to  himself  also,  does  not  stop  the 
running  of  the  statute  in  favor  of  the 
claimant.  Cavanaugh  v.  Jackson,  99  Cal, 
672;  34  Pac.  509,  The  failure  to  pay  the 
taxes  is  conclusive  against  the  claimant 
(Martin  v.  Ward,  69  Cal,  129;  10  Pac. 
276) ;  but,  after  possession  and  the  pay- 
ment of  the  taxes  for  the  time  required  by 
statute,  non-payment  of  the  taxes  there- 
after will  not  defeat  the  title  so  acquired. 
Webber  v.  Clarke,  74  Cal,  11;  15  Pac.  431. 
When  the  fee  has  been  once  acquired  by 
five  years'  adverse  possession,  the  failure 
of  the  adverse  possessor  to  pay  subsequent 
taxes  assessed  on  the  land  does  not  divest 
nor  in  any  way  affect  his  title.  Southern 
Pacific  R.  R.  Co.  v.  Whitaker,  109  Cal. 
268;  41  Pac.  1083,  The  payment  of  taxes 
on  a  designated  tract  is  not  effectual  to 
complete  a  prescriptive  right  to  land  not 
included  within  that  designation.  Eber- 
hardt  v.  Coyne,  114  Cal.  283;  46  Pac.  84; 
McDonald  v.  Drew,  97  Cal.  266;  32  Pac. 
173;  Baldwin  v.  Temple,  101  Cal.  396;  35 
Pac.  1008;  Standard  Quicksilver  Co.  v. 
Habishaw,  132  Cal,  115;  64  Pac.  113. 

Levied  and  assessed.  The  word  "levy" 
refers  to  the  act  of  the  supervisors  in 
making  the  levy,  and  the  word  "assessed" 
refers  to  the  act  of  the  assessor  in  making 
the  assessment,  Allen  v.  McKay,  120  Cal. 
332;  52  Pac.  828.  It  is  immaterial  to 
whom  the  lands  are  assessed,  whether  to 
the  claimant  or  another,  but  the  claimant 
must  show  that  he  or  his  grantors  have 
paid  the  taxes  (Ross  v.  Evans,  65  Cal. 
439;  4  Pac.  443);  and  he  is  not  relieved 
1  Fair. — 12 


from  the  obligation  to  pay,  by  the  fact 
that  the  land  was  not  assessed  separately, 
and  he  was  obliged  to  pay  taxes  assessed 
against  other  lands.  McNoble  v,  Justini- 
ano,  70  Cal,  395;  11  Pac.  742.  Payment  by 
the  owner  adds  nothing  to  his  title,  but  it 
excludes  any  presumption  that  any  taxes 
were  assessed  or  paid  by  the  adv'crse  claim- 
ant. Standard  Quicksilver  Co.  v,  Habishaw,, 
132  Cal,  115;  64  Pac.  113.  The  redemption 
from  a  tax  sale,  by  the  claimant,  cannot 
take  the  place  of  the  payment  of  taxes 
levied  and  assessed  (McDonald  v,  McCoy, 
121  Cal.  55;  53  Pac.  421);  but  the  fact  that 
a  portion  of  the  property  was  jointly 
assessed  to  the  claimant  and  another,  to 
whom  the  claimant  gave  the  money  to  pay 
such  tax,  but  which  was  not  paid,  and  the 
claimant  subsequently  redeemed  the  land 
from  the  tax  sale,  does  not  show  a  failure 
to  pay.  Gray  v.  Walker,  157  Cal.  381;  108 
Pac,  278,  The  burden  of  showing  pay- 
ment of  taxes  is  on  the  claimant,  where  he 
relies  upon  adverse  possession  under  the 
statute  of  limitations,  and  he  must  either 
prove  that  no  taxes  were  levied  upon  the 
land  claimed,  or  that  he  paid  all  the  taxes 
levied  and  assessed  thereon.  Ball  v,  Nich- 
ols, 73  Cal,  193;  14  Pac.  831;  Revuolds  v. 
Willard,  80  Cal.  605;  22  Pac.  262;  Oneto 
V.  Restano,  78  Cal,  374,  375;  20  Pac,  743; 
McGrath  v,  Wallace,  85  Cal,  622;  24  Pac. 
793;  Baldwin  v.  Temple,  101  Cal.  396;  35 
Pac.  1008;  Goodwin  v.  Scheerer,  106  Cal, 
690;  40  Pac.  18;  Eberhardt  v.  Covne,  114 
Cal.  283;  46  Pac.  84;  Allen  v,  McKay,  120 
Cal,  332;  52  Pac,  828;  Standard  Quicksilver 
Co.  v.  Habishaw,  132  Cal,  115,  123;  64  Pac. 
113;  Glowner  v,  De  Alvarez,  10  Cal,  App. 
194;  101  Pac.  432;  Allen  v.  Allen,  159  Cal. 
197;  113  Pac.  160,  If  it  does  not  appear 
that  any  taxes  were  assessed  against  the 
property,  a  failure  to  find  that  claimant 
paid  all  the  taxes  is  immaterial  (Heilbron 
V,  Last  Chance  Water  Ditch  Co.,  75  Cal. 
117;  17  Pac.  65;  Oneto  v.  Restano,  78  Cal. 
374;  20  Pac.  743;  Spargur  v.  Heard,  90 
Cal.  221;  27  Pac.  198),  as  the  party  is  not 
excluded  from  the  benefit  of  the  statute  of 
limitations,  unless  the  property  which  he 
claims  to  hold  adversely  was  actually 
assessed;  it  is  the  duty  of  the  occupant  to 
pay  all  the  taxes  levied  and  assessed. 
Brown  v,  Clark,  89  Cal.  196;  26  Pac,  801; 
Allen  V.  McKay,  120  Cal,  332;  52  Pac.  828; 
Standard  Quicksilver  Co.  v.  Habishaw,  132 
Cal.  115;  64  Pac.  113.  There  may  be  ad- 
verse possession  of  public  property  that 
has  never  been  assessed  for  the  payment 
of  taxes,  Casserly  v,  Alameda  County,  153 
Cal,  170;  94  Pac.  765, 

"Upon  such  land,"  It  is  doubtful  if  the 
word  "land,"  as  used  in  this  section,  was 
intended  to  have  any  other  than  its  real 
meaning;  in  some  legal  connections,  it  is, 
no  doubt,  used  co-extensively  with  "real 
property,"  but,  primarily,  it  means  the  soil 
or  the  earth's  crust;  it  is  not  at  all  clear, 
therefore,  that  the  section  was  intended  to 


I  326      TIME   OF    COMMENCING  ACTIONS   FOB   RECOVERY   OP   REAL    PROPERTY.      178 


Occupied  and  claimed.     See  notes  ante, 

§§321,322,323. 

Support  of  findings  by  the  evidence.  See 
note  post,  §  633. 

Inclosure  of  land  as  essential  to  adverse  pos- 
session.   See  note  Ann.  Gas.  1913A,  750. 

CODE  COMMISSIONERS'  NOTE.  Slats.  1850, 
p.  344. 

Subd.  1.  See  note  to  §  323,  ante.  If  is  only 
necessary  to  show  that  the  land  was  held  in  ad- 
verse possession  by  a  substantial  inclosure,  and 
the  occupation,  cultivation,  or  use  of  the  land 
need  not  be  proved.  Polack  v.  McGrath,  32  Cal. 
15;  see  also  notes  to  §§  312,  322,  ante. 


apply  to  mere  easements  or  appurtenant 
rights;  a  private  ditch  and  water  right, 
used  for  domestic  purposes,  to  water  live- 
stock, and  to  irrigate  a  definite  tract  of 
land,  appurtenant  to  and  passing  with  a 
conveyance  of  the  land,  is  not  required  to 
be  separately  listed  and  taxed,  but  should 
be  considered  as  included  in  the  assess- 
ment of  the  land  (Coonradt  v.  Hill,  79  Cal. 
587;  21  Pac.  1099;  Frederick  v.  Dickey,  91 
Cal.  358;  27  Pac.  742),  and,  nothing  to  the 
contrary  appearing,  it  will  be  presumed 
that  it  was  so  included  in  the  assessment 
of  the  land.  Smith  v.  Smith,  21  Cal.  App. 
378;  131  Cal.  890. 

§  326.  Relation  of  landlord  and  tenant  as  affecting  adverse  possession. 
When  the  relation  of  landlord  and  tenant  has  existed  between  any  persons, 
the  possession  of  the  tenant  is  deemed  the  possession  of  the  landlord  until 
the  expiration  of  five  years  from  the  termination  of  the  tenancy,  or,  where 
there  has  been  no  written  lease,  until  the  expiration  of  five  years  from  the 
time  of  the  last  payment  of  rent,  notwithstanding  that  such  tenant  may 
have  acquired  another  title,  or  may  have  claimed  to  hold  adversely  to  his 
landlord.  But  such  presumptions  cannot  be  made  after  the  periods  herein 
limited. 

Tenant  denying  landlord's  title.  Post,  §  1962, 
subd.  4. 

Legislation  8  326.  Enacted  March  11,  1872; 
based  on  Stats.   1850,  p.  344. 

Possession  of  tenant  deemed  possession 
of  landlord.  The  possession  of  a  mere 
tenant  could  not,  under  any  circumstances, 
be  held  to  be  adverse,  until  the  expiration 
of  five  years  from  the  last  payment  of  the 
rent.  Raynor  v.  Drew,  72  Cal.  307;  13 
Pac.  866.  A  tenant  in  possession  under  a 
parol  lease  for  more  than  one  .year,  the 
conditions  of  which  are  fully  performed, 
is  presumed  to  hold  in  subordination  to 
the  title  of  his  landlord.  Doolan  v.  Mc- 
Cauley,  66  Cal.  476;  6  Pac.  130.  A  party 
is  presumed  to  know  that  the  possession  of 
the  tenant  is  deemed  the  possession  of  the 
landlord  (Mauldin  v.  Cox,  67  Cal.  387;  7 
Pac.  804) ;  but  the  presumption  that  the 
tenant  holds  in  subordination  of  his  land- 
lord ceases  upon  the  expiration  of  the 
term  of  five  years  after  the  expiration  of 
the  lease.  Millett  v.  Lagomarsino,  4  Cal. 
Unrep.  883;  38  Pac.  308.  Possession  under 
an  agreement  to  purchase  is  not  adverse. 
Dresser  v.  Allen,  17  Cal.  App.  508,  510; 
120  Pac.  65.  An  estoppel  against  the  ten- 
ant, in  favor  of  the  landlord's  title,  does 
not  endure  longer  than  the  tenant's  pos- 
session under  the  lease;  and  after  posses- 
sion has  been  restored  to  the  landlord,  the 
tenant  is  released  from  the  estoppel,  and 
if   he  has   paramount  title,   he   may   bring 

§  327.  Right  of  possession  not  affected  by  descent  cast.  The  right  of  a 
person  to  the  possession  of  real  property  is  not  impaired  or  affected  by  a 
descent  cast  in  consequence  of  the  death  of  a  person  in  possession  of  such 
property. 


it  forward  (Willson  v,  Cleaveland,  30  Cal. 
192);  and  where  the  relation  of  landlord 
and  tenant  never  existed,  of  course  this 
section  does  not  apply.  Millett  v.  Lago- 
marsino, 107  Cal.  102;  40  Pac.  25. 

Estoppel  of  tenant  to  deny  title  of  landlord. 

See  note  13  Am.  Dec.  68. 

Adverse  possession  by  tenant.  See  note  53 
L.  R.  A.  941. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  344.  A  tenant  cannot  set  up  title  against  his 
Landlord,  without  first  surrendering  possession. 
Tewksbury  v.  Magraff,  33  Cal.  237,  and  cases 
cited  therein.  A  tenant  may  not  be  estopped, 
where,  in  taking  the  lease,  he  was  imposed  upon 
by  the  lessor.  Gleim  v.  Rise,  6  Watts  (Pa.),  44. 
So  if  the  tenant  has  been  ousted  by  title  para- 
mount, he  may  plead  it  (Haynes  v.  Maltby,  3 
Term  Rep.  441);  also,  that  the  landlord's  title 
has  ceased,  or  has  become  extinguished  (Jackson 
V.  Rowland,  6  Wend.  666,  22  Am.  Dec.  557)  ;  or 
that  he  has  acquired  his  landlord's  title  by  pur- 
chase from  him,  or  at  a  judicial  sale,  or  by  a  re- 
demption. And  if  the  action  is  brought  by  a 
vendee  of  the  landlord,  the  tenant  may  dispute 
the  derivative  title.  Phillips  v.  Pierce,  5  B.  &  C. 
433;  Reay  v.  Cotter,  29  Cal.  168.  So  if  tenant 
did  not  take  possession  under  the  lease,  but  was 
in  possession  at  the  time  he  took  the  lease,  he 
may  dispute  the  landlord's  title  without  first  sur- 
rendering the  possession;  for,  not  having  received 
the  possession  from  him,  he  is  under  no  moral  or 
legal  obligation  to  restore  it  before  adopting  a 
hostile  attitude,  and  he  may  have  attorned  by 
mistake  to  one  who  had  no  title.  Cornish  v. 
Searell,  8  B.  &  C.  471.  To  these  exceptions  may 
be  added,  possibly,  the  case  where  it  appears 
affirmatively  that  both  parties  have  acted  under  a 
mutual  mistake  as  to  vhe  law  in  regard  to  the 
title  of  the  lessor.  Glen  v.  Gibson,  9  Barb.  (N.  Y.) 
638  ;  Tewksbury  v.  Magraflf,  33  Cal.  245. 


179      CERTAIN  DISABILITIES  EXCLUDED  FROM  TIME  TO  COMMENCE  ACTIONS.       §  328 


Legislation  8  327.      Enacted   March   11,    1873; 
based  on  Stats.   1850,  p.  345. 


CODE  COMMISSIONERS'  NOTE. 

p.  344. 


Stats.  1850, 


§  328.  Certain  disabilities  excluded  from  time  to  commence  actions.  If 
a  person  entitled  to  comnienee  an  action  for  the  recovery  of  real  property, 
or  for  the  recovery  of  the  possession  thereof,  or  to  make  any  entry  or  defense 
founded  on  the  title  to  real  property,  or  to  rents  or  services  out  of  the  same, 
is,  at  the  time  such  title  first  descends  or  accrues,  either: 

1.  Under  the  age  of  majority ; 

2.  Insane; 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon  conviction  of  a 
criminal  offense,  for  a  term  less  than  life ; 

The  time,  not  exceeding  twenty  years,  during  which  such  disability  con- 
tinues is  not  deemed  any  portion  of  the  time  in  this  chapter  limited  for  the 
commencement  of  such  action,  or  the  making  of  such  entry  or  defense,  but 
such  action  may  be  commenced,  or  entry  or  defense  made,  within  the  period 
of  five  years  after  .such  disability  shall  cease,  or  after  the  death  of  the  per- 
son entitled,  who  shall  die  under  such  disability;  but  such  action  shall  not 
be  commenced,  or  entry  or  defense  made,  after  that  period, 

is  also  barred,  notwithstanding  his  minor- 
ity. Patchett  V.  Pacific  Coast  Ry.  Co.,  100 
Cal.  505;  35  Pac.  73;  Halleck  v.  Mixer,  16 
Cal.  574;  Cunningham  v.  Ashley,  45  Cal. 
485;  McLeran  v.  Benton,  75  Cal.  329;  2 
Am.  St.  Eep.  814;  14  Pac.  879;  but  see 
contra,  Crosby  v.  Dowd,  61  Cal.  557;  Win- 
terburn  v.  Chambers,  91  Cal.  170;  27  Pac. 
658.  The  statute  is  not  suspended  in  favor 
of  a  minor  claiming  under  an  ancestor  who 
died  after  his  possession  had  been  invaded 
and  the  statute  of  limitations  set  in  mo 
tion  (Crosby  v.  Dowd,  61  Cal.  557;  Mc 
Leran  v.  Benton,  73  Cal.  329;  2  Am.  St 
Rep.  814;  14  Pac.  879;  Alvarado  v.  Nord 
holt,  95  Cal.  116;  30  Pac.  211;  Castro  v, 
Geil,  110  Cal.  292;  52  Am.  St.  Rep.  84;  42 
Pac.  804);  but  where  the  ancestor  died 
before  his  rights  were  invaded,  the  minor 
may  commence  his  action  five  years  after 
attaining  majority.  Crosby  v.  Dowd,  61 
Cal.  557;  McNeil  v.  First  Congregational 
Society,  66  Cal.  105;  4  Pac.  1096.  An 
ouster,  and  notice  thereof,  are  not  sus- 
pended by  the  infancy  of  the  disseised, 
but  the  effect  of  his  knowledge  thereof 
is  suspended  until  his  majority,  and  he  has 
five  years  after  that  date  within  which  to 
bring  the  action  to  recover  the  land.  Win- 
terburn  v.  Chambers,  91  Cal.  170;  27  Pac. 
658.  Prior  to  the  statute  of  1863,  there 
was  no  saving  clause  in  favor  of  infants. 
McLeran  v.  Benton,  73  Cal.  329;  2  Am.  St. 
Rep.  814;  14  Pac.  879. 


(1) 

"is" 

"1. 


War.    Post,  §  354. 

Absence  from  state.    See  post,  §  351. 

Disabilities. 

1.  Successive.     See  post,  §  358. 

2.  Effect  of,   in   action  to  recover  escheated 
property.     See  post,  §  1272. 

Legislation  §  328.  1,  Enacted  March  11,  1873; 
based  on  Stats.   1863,  p.   325. 

3.  Amendment  by  Stats.  1901,  p.  124;  un- 
constitutional.    See  note  ante,  §  5. 

3.   Amended     by     Stats.     1903,    p.     177, 
changing,    in    the   first   paragraph,    the   word 
from     "be";      (2)     changing     subd.     1     from 
Within   the    age    of   majority;    or";     (3)    in    subd. 
2,  omitting  "or"  after  "Insane";    (4)    in  subd.   3, 
omitting    (a)    "for"    before    "life"    and    (b)     "or" 
at    end    of    subdivision;     (5)     omitting    subd.    4, 
which  read:    "4.  A  married  woman,   and  her  hus- 
band   be    a    necessary    party    with    her    in    com- 
mencing   such    action    or    making    such    entry    or 
defense";   and   (6)    in  first  line  of  last  paragraph, 
adding  the  words   "not   exceeding  twenty   years." 

Effect  of  disabilities.  The  provisions  of 
this  section  are  an  exception  to  the  gen- 
eral rule,  that  actions  for  the  recovery  of 
real  property  must  be  brought  within  five 
years  after  the  cause  of  action  has  arisen 
(Southern  Pacific  R.  R.  Co.  v.  Whitaker, 
109  Cal.  268;  41  Pac,  1083);  but  where  the 
statute  of  limitations  has  commenced  to 
run,  no  subsequent  disability  will  stop  it. 
Crosby  v.  Dowd,  61  Cal.  557.  This  section 
will  not  protect  an  heir  not  under  disabil- 
ity, where  the  disability  exists  as  to  a  co- 
heir.   Burton  v.  Robinson,  51  Cal.  186. 

Infancy.  Where  a  cause  of  action  ac- 
crues during  infancy,  the  action  must  be 
commenced  at  any  time  within  five  years 
after  attaining  majority.  Burton  v.  Rob- 
inson, 51  Cal.  186;  Crosby  v.  Dowd,  61  Cal. 
557;  Gates  v.  Lindley,  104  Cal.  451;  38 
Pac.  311.  When  an  infant's  property  is  in 
the  hands  of  an  executor,  trustee,  or 
guardian,  and  they  are  barred,  the  infant 


Disabilities  which  interrupt  operation  of  stat- 
ute of  limitations.    See  note  36  Am.  Dec.  68. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1863, 
p.  325. 


§§  335,  336    ACTIONS  other  than  for  recovery  of  real  property. 


180 


CHAPTER  III. 

TIME   OF   COMMENCING   ACTIONS   OTHER    THAN   FOR   RECOVERY   OF    REAL 

PROPERTY. 


§  335.  Periods  of  limitation  prescribed. 

§  336.  Within  five  years. 

§  337.  Within  four  years. 

§  338.  Within  three  years. 

§  339.  Within  two  years. 

§  340.  Within  one  year. 

§  341.  Within  six  months. 

§  342.  Same. 

§  343.  Actions   for    relief   not    hereinbefore    pro- 
vided for. 


344. 
345. 


I  346. 
I  347. 


348. 
349. 


Where  cause  of  action  accrues  on  mutual 
account. 

Actions  by  the  people  subject  to  the  limi- 
tations of  this  chapter. 

Action  to  redeem  mortgage. 

Same,  when  some  of  mortgagors  are  not 
entitled  to  redeem. 

No  limitations  where  money  deposited  in 
bank. 

Time  for  commencing  actions  under  "local 
improvement  act  of  1901." 


§  335.     Periods  of  limitation  prescribed.     The  periods  prescribed  for  the 

commencement  of  actions  other  than  for  the  recovery  of  real  property,  are 

as  follows: 

breach,  and  put  the  statute  in  motion. 
Vickrey  v.  Maier,  164  Cal.  384;  129  Pac. 
273.  In  the  absence  of  any  provision  to 
the  contrary,  interest  coupons  of  bonds  are 
independent  obligations,  and  the  statute 
begins  to  run  from  the  date  of  their  ma- 
turity, where  they  have  been  detached 
from  the  bonds  and  transferred  to  an- 
other. California  Safe  Deposit  etc.  Co.  v. 
Sierra  Valleys  etc.  Ry.  Co.,  158  Cal.  690; 
112  Pac.  274.  Neither  the  creditor's  ignor- 
ance of  nor  his  inability  to  discover  the 
presence  of  the  judgment  debtor  will  pre- 
vent the  running  of  the  statute  in  the 
latter's  favor.  St.  Paul  Title  etc.  Co.  v. 
Stensgaard,  162  Cal.  178;  121  Pac.  731. 
The  burden  of  proof  is  on  the  defendant; 
he  must  show  the  date  on  which  the  stat- 
ute began  to  run.  Whitcomb  v.  McClin- 
tock,  1  West  Coast  Rep.  876;  Norton  v. 
Zellerbach,  2  Cal.  Unrep.  181;  11  Pac. 
Coast  L.  J.  3.56.  Where  the  bar  of  the 
statute  is  raised,  the  court  should  expressly 
find  whether  the  action  is  barred  by  the 
statute,  and  not  merely  facts  from  which 
it  may  be  inferred  that  the  bar  has  or  has 
not  risen.  Duff  v.  Duff,  71  Cal.  513;  12  Pac. 
570;  Spaulding  v.  Howard,  121  Cal.  194; 
53  Pac.  563. 

Pleading  the  statute  of  limitations.    See 
note  post,  §  458. 


Legislation  §  335.     Enacted   March   11,    1873. 

Limitations  prescribed.  This  section,  as 
well  as  the  title  of  this  chapter,  clearly 
shows  that  the  limitations  therein  fixed  do 
not  apply  to  actions,  where  the  effect 
would  be  to  cut  off  any  portion  of  the  lim- 
itation of  five  years.  Goodnow  v.  Parker, 
112  Cal.  437;  44  Pac.  738.  The  nature  of 
the  right  sued  upon,  and  not  the  form  of 
the  action  or  the  relief  demanded,  deter- 
mines the  applicability  of  the  statute  of 
limitations.  Bell  v.  Bank  of  California, 
153  Cal.  234;  94  Pac.  889.  As  the  statute 
of  limitations  is  applicable  both  to  actions 
at  law  and  to  suits  in  equity,  there  can  be 
no  laches  in  the  delay  to  bring  an  action, 
where  brought  within  the  period  of  limi- 
tation, unless  there  are  some  facts  or  cir- 
cumstances attending  the  delay  that  have 
operated  to  defendant's  injury.  Meigs  v. 
Pinkham,  159  Cal.  104;  112  Pac.  883.  This 
section  has  no  relation  to  an  equitable  pro- 
ceeding to  set  aside  a  fraudulent  deed  to 
real  estate,  where  the  effect  of  it  would  be 
to  restore  the  possession  of  the  premises 
to  the  defrauded  party;  such  proceeding  is 
substantially  one  for  the  recovery  of  real 
property.  Oakland  v.  Carpentier,  13  Cal. 
540.  Where  a  party  is  entitled  to  a  per- 
formance upon  the  part  of  another,  only 
a  tender   or  offer  to   perform   can  work   a 


§  336.     Within  five  years.     "Within  five  years : 

1.  An  action  upon  a  judgment  or  decree  of  any  court  of  the  United  States 
or  of  any  state  within  the  United  States. 

2.  An  action  for  mesne  profits  of  real  property. 

Foreign  3tatute  of  limitations,  effect  of.    Post,        v.   O'Donnell,  139  Cal.  6;   96  Am.  St.  Rep. 

91;  72  Pac.  337.  All  domestic  judgments 
are  embraced  within  its  terms  (Mason  v. 
Cronise,  20  Cal.  211;  Rowe  v.  Blake,  99 
Cal.  167;  37  Am.  St.  Rep.  45;  33  Pac.  864; 
John  Heinlen  Co.  v.  Cadwell,  3  Cal.  App. 
80;  84  Pac.  443;  Hobbs  v.  Duff,  23  Cal. 
596);  and  also  judgments  of  a  sister  state 
(St.  Paul  Title  etc.  v.  Stensgaard,  162 
Cal.  178;  121  Pac.  731);  but  foreign  judg- 
ments are  not,  being  provided  for  by 
§  343,  post.     Dore  v.  Thornburgh,  90  Cal. 


§  3G1. 

Legislation  §  336.  1.  Enacted  March  11,  1873; 
based  on  Stats.  1850,  p.  343. 

3.  Amended  by  Code  Amdts.  1873-74.  p. 
291,  (1)  numbering  the  second  paragraph  as 
subd.  1,  and   (2)   adding  subd.  2. 

Actions  upon  judgments.  This  section 
is  not  applicable  to  the  procedure  contem- 
plated by  §  685,  post  (Doehla  v.  Phillips, 
151  Cal.  488;  91  Pac.  330);  nor  does  it 
control  or  affect  the  operation  of  §  708, 
post,  nor  the  remedy  given  by  it.   Merguire 


181 


WITHIN  FOUR  YEARS. 


§337 


64;  25  Am.  St.  Rep.  100;  27  Pac.  30. 
Under  §  351,  post,  the  statute  does  not  com- 
mence to  run  against  an  action  on  a  judg- 
ment of  a  sister  state,  against  a  non- 
resident, until  the  judgment  debtor  comes 
into  this  state,  and  the  period  of  his  ab- 
sence subsequent  to  his  coming  here  is 
deducted  from  the  statutory  period.  Chap- 
pel  V.  Thompson,  21  Cal.  App.  136;  131 
Pac.  82.  A  decree  for  alimony  is  embraced 
within  this  section  (De  Uprey  v.  De  Uprey, 
23  Cal.  352);  and  for  maintenance  (Simp- 
son V.  Simpson,  21  Cal.  App.  150;  131  Pac. 
99);  so  also  are  foreclosure  decrees  and 
deficiency  judgments.  Stout  v.  Macy,  22 
Cal.  647;  Bowers  v.  Crary,  30  Cal.  621. 
The  docketing  of  a  deficiency  judgment  is 
not  a  new  and  independent  judgment;  it  is 
governed  by  the  decree.  Bowers  v.  Crary, 
•30  Cal.  621.  The  statute  is  set  in  motion 
onl}^  by  a  final  judgment  (Condee  v.  Bar- 
ton, 62  Cal.  1);  and  the  time  is  to  be  com- 
puted from  the  date  on  which  the  judg- 
ment is  entered  of  record,  not  from  the 
date  on  which  the  court  finds  the  party  is 
entitled  to  judgment.  Parke  v.  Williams, 
7  Cal.  247;  Franklin  v.  Merida,  50  Cal. 
289;  Trenouth  v.  Farrirgton,  54  Cal.  273; 
■Condee  v.  Barton,  62  Cal.  1;  Crim  -v.  Kess- 
ing,  89  Cal.  478;  23  Am.  St.  Eep.  491;  26 
Pac.  1074;  Eowe  v.  Blake,  99  Cal.  167;  37 
Am.  St.  Tlep.  45;  33  Pac.- 864;  Edwards  v. 
Hellings,  103  Cal.  204;  37  Pac.  218;  Herr- 
lich  V.  RicDonald,  104  Cal.  551;  38  Pac. 
360.  A  final  judgment  does  not  exist  until 
the  time  for  the  appeal  therefrom  has 
elapsed.  Feeney  v.  Hinckley,  134  Cal.  467; 
86  Am.  St.  Rep.  290;  66  Pac.  580;  Estate 
of  Wood,  137  Cal.  129;  69  Pac.  900.  The 
clerk's  entry  in  the  minutes,  at  the  end  of 
the  trial,  of  the  decision  of  the  judge,  does 
not  constitute  a  judgment.  Crim  v.  Kess- 
ing,  89  Cal.  478;  23  Am.  St.  Rep.  491;  26 
Pac.  1074,  A  defendant  against  whom  a 
judgment  is  rendered,  if  he  wishes  to  set 
the  statute  running,  may  cause  the  judg- 
ment to  be  entered  at  any  time.  Edwards 
V.  Hellings,  103  Cal.  204;  37  Pac.  218. 
The  statute  runs  from  the  date  of  the  mak- 
ing of  a  decree  of  distribution.  Wheeler 
V.  Bolton,  54  Cal.  302.  Where  a  judgment 
is  made  payable  in  installments,  the  stat- 
ute begins  to  run  on  each  installment  from 
the  day  it  becomes  payable  under  the 
judgment.  De  Uprey  v.  De  Uprey,  23  Cal. 
352.  A  judgment  for  costs  on  appeal  is 
barred  within  five  years  after  the  judg- 
ment  is   entered.    Reay   v.   Heazelton,   128 

§  337.     Within  four  years.     Within  four  years : 

1.  An  action  upon  any  contract,  obligation  or  liability  founded  upon  an 
instrument  in  writing  executed  within  this  state ;  provided,  that  wherever 
the  time  within  which  any  such  action  must  be  so  commenced  would  in  any 
■case  expire  by  the  terms  of  this  section  after  the  first  day  of  June,  one  thou- 
sand nine  hundred  and  six  and  before  the  first  day  of  January,  one  thousand 
nine  hundred  and  seven,  such  action  may  be  commenced  at  any  time  before 


Cal.  335;  60  Pac.  977.  In  an  action  against 
a  garnishee  to  recover  the  debt  due  the 
judgment  debtor,  the  plea  of  the  statute 
can  be  made  whenever  it  would  be  good  as 
against  the  judgment  debtor,  but  the  lia- 
bility created  by  the  garnishment  is  never 
barred.  Nordstrom  v.  Corona  City  Water 
Co.,  155  Cal.  206;  132  Am.  St.  Rep.  81;  100 
Pac.  242.  A  failure  to  sue  within  five 
years  does  not  satisfy  the  judgment;  it 
only  bars  the  right  to  enforce  its  satis- 
faction. San  Diego  v.  Higgins,  115  Cal. 
170;  46  Pac.  923.  In  an  action  against 
the  administrator  of  a  judgment  creditor, 
the  personal  privilege  of  the  statute  is  not 
waived  by  its  not  being  pleaded.  Reay  v. 
Heazelton,  128  Cal.  335;  60  Pac.  977.  A 
defendant  sued  on  a  judgment  recovered 
in  another  state  may  plead  the  bar  of  the 
statute,  although  living  in  this  state  under 
an  assumed  name.  St.  Paul  Title  etc.  Co. 
v.  Stensgaard,  162  Cal.  178;  121  Pac.  731. 

Action  to  recover  mesne  profits.  In  an 
action  for  trespass,  rents  and  profits  are 
not  governed  by  this  section.  Carpentier 
V.  Mitchell,  29  Cal.  330.  A  patentee  of 
land  may  bring  an  action  for  the  recovery 
of  rents  at  any  time  within  five  years 
(Wilhoit  V.  Tubbs,  83  Cal.  279;  23  Pac. 
386);  and  an  amended  complaint  filed 
within  that  time  authorizes  the  recovery 
of  all  rents  received  within  the  same 
period.  Pottkamp  v.  Buss,  5  Cal.  Unrep. 
462;  46  Pac.  169. 

Time  limit  on  enforcement  of  Judgments.  See 
note  133  Am.   St.  Rep.  61. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  Domestic  judgments.  The  statute  runs  as 
well  against  judgments  rendered  in  this  state  as 
again.st  foreign  judgments.  Mason  v.  Cronise,  20 
Cal.  218. 

2.  Foreign  judgment.  A  foreign  judgment  is 
not  "a  contract,  .obligation,  or  liability  founded 
upon  an  instrument  in  writing,"  within  the  mean- 
ing of  §  337,  post.    Patten  v.  Ray,  4  Cal.  287. 

3.  A  judgment  payable  in  installments.  The 
statute  begins  to  run  on  a  judgment  payable  in 
installments  from  the  period  fi.xed  for  the  pay- 
ment of  each  installment,  as  it  becomes  due.  De 
Uprey  v.  De  Uprey,  23  Cal.  352. 

4.  Judgment  against  intestate,  obtained  during 
his  life.  By  common  law.  when  the  limitation 
began  to  run,  a  subsequent  disability,  as  death  of 
the  party  bound,  etc.,  did  not  stop  it.  But  this 
doctrine  does  not  apply  where  a  judgment  is  ob- 
tained against  an  intestate  in  his  lifetime,  and  no 
execution  levied.  In  such  case,  the  judgment 
creditor  being  prevented  by  law  from  suing  after 
the  death  of  the  debtor,  the  statute  of  limitations 
ceases  to  run  until  presentation  of  the  claim  to 
the  administrator.    Quivey  v.  Hall.  19  Cal.  98. 

5.  Five-year  limit  on  foreign  judgment.  Caven- 
der  v.  Guild.  4  Cal.  250.  Statute  begins  to  run, 
only  from  the  time  of  final  entry  of  judgment. 
Parke  v.  Williams,  7  Cal.  247. 


§  337       ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY.         182 

the  first  day  of  January,  one  thousand  nine  hundred  and  seven,  with  the 
same  force  and  effect  as  if  commenced  within  four  years  as  in  this  section 

provided. 

2.  An  action  to  recover  a  balance  due  upon  a  mutual,  open  and  current 
account  or  upon  an  open  book-account. 

Four-years  limitation,  where  no  other  provis-  Wallace,  75  Cal.  552;  17  Pac  680;  Mc- 
Carthy V.  Mount  Tecarte  Land  etc.  Co., 
Ill  Cal.  328;  43  Pac.  956;  Thomas  v.  Pacific 
Beach  Co.,  115  Cal.  136;  46  Pac.  899.  An 
action  against  a  county  auditor  for  receiv- 
ing moneys  collected  for  license  taxes,  is 
not  within  this  section.  San  Luis  Obispo 
County  V.  Farnum,  108  Cal.  567;  41  Pac. 
447;  Best  v.  Johnson,  78  Cal.  217;  12  Am. 
St.  Rep.  41;  3  L.  R.  A.  168;  20  Pac.  415. 
An  action  upon  a  note,  praying  subroga- 
tion, is  barred  in  four  years  after  the  ma- 
turity of  the  note.  Campbell  v.  Campbell, 
133  Cal.  33;  65  Pac.  134;  Clausen  v.  Meister, 
93  Cal.  555;  29  Pac.  232.  The  section  ap- 
plies to  an  action  to  enforce  a  mortgage 
executed  by  a  guardian  (Banks  v.  Stock- 
ton, 149  Cal.  599;  87  Pac.  83),  to  an  action 
to  quiet  title  (Burns  v.  Hiatt,  149  CaL 
617;  117  Am.  St.  Rep.  157;  87  Pac.  196), 
to  an  action  between  a  beneficiary  and  his 


ion.    Post,  §  343. 

Legislation  §  337.  1.  Enacted  March  11,  IS'P 
(based  on  Stats.  1850,  p.  345),  and  then  read: 
"Within  four  years:  An  action  upon  any  con- 
tract, obligation,  or  liability  founded  upon  an  in- 
strument  in   writing."  ^„^„    -^ 

2.  Amended    by    Code    Amdts.     1873-74,    p. 
291,    adding   the   words    "executed   in   this    state 
at  end  of  section. 

3.  Amended  bv  Stats.  1906,  p.  5,  (1)  chan- 
ging the  word  "in"  to  "within,"  in  the  second 
line,   and    (2)    adding  the   proviso.  

4.  Amended  by  Stats.  1907,  p.  o99,  (1) 
numbering  the  second  paragraph  as  subd.  1,  and 
(2)   adding  subd.  2. 

General  rule.  The  statute  states  the 
general  rule,  that  actions  founded  upon  an 
instrument  in  writing  are  barred  after  four 
years.  Priet  v.  De  la  Montanya,  3  Cal. 
Unrep.  122;  22  Pac.  171;  Southern  Pacific 
Co.  V.  Prosser,  122  Cal.  413;  52  Pac.  836; 
55  Pac.  145;  People  v,  Weiueke,  122  Cal. 
535;  55  Pac.  579;  Coyle  v.  Lamb,  123  Cal. 


90  Pac.  188),  to  an  action  to  recover  the 
price  of  a  levee  built  on  the  defendant's 
land  (Fabian  v.  Lammers,  3  Cal.  App.  109; 
84  Pac.  432),  and  to  an  action  for  goods 
sold  under  a  contract  in  writing.    Brackett 


264-  55  Pac.  901;  Newhall  v.  Sherman,  124       trustee  (Marston  v.  Kuhland,  151  Cal.  102; 

Cal.'  509;   57  Pac.  387;   Harrigan  v.  Home       ""  ^^- -     ^""•'    "-    --    --'--    --   -'-- 

Life  Ins.   Co.,   128   Cal.   531;   58  Pac.  180; 

61   Pac.   99;    Vandall   v.   Teague,    142   Cal. 

471;  76  Pac.  35.     A  finding  that  the  action 

was   barred   by   the   statute,   and   that   the 

security  was  over  forty  years  past  due  be-       v.  Martens,  4  Cal.  App.  249;   87  Pac.  410 

fore   the   action    was    commenced,   ?s   sufii- 

eient  to  show  that  the"  action  was  barred. 

Marshutz  v.  Seltzor,   5   Cal.   App.   140;   89 

Pac.  877. 

Actions  founded  upon  instruments  in 
vrriting.  Actions  on  bills  and  notes  are 
governed  bv  this  section  (Rogers  v.  Byers, 

1  Cal.  App".  284;  81  Pac.  1123;  Hewel  v, 
Hogin,  3  Cal.  App.  248;  84  Pac.  1002;  Du 
Brutz  V.  Bank  of  Visalia,  4  Cal.  App.  201, 

87   Pac.   467,   469;   Marshutz   v.   Seltzor,   5 

Cal.  App,   140;  89  Pac.  877;  Ball  v.  Lowe, 

1  Cal.  Aip.  228;  81  Pac.  1113;  Palmtag  v. 

Roadhouse,    4    Cal.    Unrep.    205;     34    Pac. 

Ill);   but   the   obligation   of  the  principal 

to  repay  the  surety  is  not  "founded  upon 

a  written  instrument"  (Chipman  v.  Morrill, 

20     Cal.    130;     approved    in    McCarthy    v. 

Mount  Tecarte  Land  etc.  Co.,  Ill  Cal. "328, 

43   Pac.  956,   holding  that   a  resolution   of 

a    corporation     appointing    a    director     as 

manager  does  not  give  the  manager  a  right 

of  action  for  salary  based  upon  an  obliga- 
tion in  wri1ii;g);  but  an  action  to  enforce 

contribution  on  a  bond  is  within  this  sec- 
tion.   Hewlett  V.  Beede,  2  Cal.  App.  561; 

83  Pac.  1086.     A  resolution  of  a  board  of 

directors,  fixing  the  salary  of  an  officer,  is 

a     contract     in     writing     (Rosborough     v. 

Shasta  River  Canal  Co.,  22  Cal.  556);  but 

a  resolution  adopting  plans  and  specifica- 
tions is  not.    Todd  v.  Board  of  Education, 

122    Cal.    106;    54    Pac.    527;    Foorman    v. 


An  action  on  an  implied  warranty  of  an  ar- 
ticle, manufactured,  on  a  written  order,  for 
a  specific  purpose,  is  founded  on  an  instru- 
ment  in   writing,   and   is   also   within   this 
section    (Bancroft   v.    San    Francisco    Tool 
Co.,  120  Cal.  228;  52  Pac.  496);  as  is  also 
an    action    to    recover   rents    due   under    a 
lease  (Coyle  v.  Lamb,  123  Cal.  264;  55  Pac. 
901),   and   an   action   to   foreclose   a   mort- 
gage.   Newhall  v.   Sherman,   124  Cal.   509; 
57  Pac.  387;  Moore  v.  Gould,  151  Cal.  723; 
91  Pac.  616;   California  Title  Ins.  etc.  Co. 
V.  Miller,  3  Cal.  App.  54;  84  Pac.  453.     An 
action  against  a  city  and  county  treasurer 
and   his   sureties,   for  misappropriation   of 
funds,  is  within  this  section   (Priet  v.  De 
la   Montanya,   85   Cal.   148;    24  Pac.   612); 
but   where   the   primary   obligation   of   the 
officer  is  barred,  the  sureties  are  relieved. 
Sonoma  County  v.   Hall,   132   Cal.   589;   62 
Pac.   257,   312;   65   Pac.   12,  459.     A   prom- 
ise,  merely  implied  by  law,   and   not  sup- 
ported by  any  express  terms  in  the  written 
instrument,  does  not  come  within  the  stat- 
ute.   Thomas  v.  Pacific  Beach  Co.,  115  Cal. 
136;    46   Pac.    899.     An    action    to    recover 
on   a  contract  for  street  improvements  in 
front    of    a    government    reservation    in    a 
city,  is  based  either  on  a  contract  founded 
on  an  instrument  in  writing,  or  on  an  obli- 
gation or  liability  arising  out  of  an  assess- 
ment made  in  writing,  and  is  within  this 
section.    Onderdonk   v.    San   Francisco,    7i> 


183 


WITHIN  FOUR  YEARS. 


§337 


Cal.  534;  17  Pac.  678.  A  naked  receipt 
for  money,  not  being  a  contract,  does  not 
import  a  promise  or  obligation  (Ashley  v, 
Vischer,  24  Cal.  322;  85  Am.  Dec.  65; 
Scrivner  v.  Wood"ward,  139  Cal.  314;  73 
Pac.  863),  unless  it  expresses  a  promise. 
Ashley  v.  Vischer,  24  Cal.  322;  85  Am.  Dec 
65.  Where  lands,  upon  the  death  of  a 
person,  are  impressed  with  the  qualities 
of  a  resulting  trust,  such  trust  may  be  en- 
forced at  any  time  within  four  years  after 
such  death.  Keefe  v.  Keefe,  19  Cal.  App. 
310;  125  Pac.  929.  The  four-years  limita- 
tion prescribed  in  this  section  is  applicable 
to  an  action  to  recover  a  proportionate 
part  of  the  expense  of  reclaiming  land 
under  a  written  agreement  (Fabian  v.  Lam- 
mers,  3  Cal.  App.  109;  84  Pac.  432),  and 
to  actions  on  interest  coupons  attached  to 
bonds.  California  Safe  Deposit  etc.  Co.  v. 
Sierra  Vallevs  Ry.  Co.,  158  Cal.  690;  Ann. 
Cas.  1912A,"'729;  112  Pac.  274.  This  sec- 
tion applies  to  an  action  to  recover  dam- 
ages for  the  breach  of  a  written  contract: 
such  action  is  founded  upon  a  written  in- 
strument. Ahlers  v.  Smiley,  163  Cal.  200; 
124  Pac.  827. 

Action  upon  account.  Action  on  an  ac- 
count stated  is  barred,  unless  brought 
within  four  years.  Visher  v.  Wilbur,  5  Cal. 
App.  562;  90  Pac.  1065;  91  Pac.  412. 

Commencement  of  running  of  statute. 
A  surety's  liability  is  not  discharged  until 
four  years  after  his  liability  has  become 
fixed  (Dussol  v.  Brnguiere,  50  Cal.  456) ; 
and  the  statute  commences  to  run  from 
the  date  of  the  affirmance  of  the  judgment 
against  him.  Clark  v.  Smith,  66  Cal.  645; 
4  Pac.  689;  6  Pac.  732.  The  statutory  bar 
intervenes  in  four  years  from  the  date 
when  the  cause  of  action  accrues.  Banks 
V.  Marshall,  23  Cal.  223;  Pendleton  v. 
Rowe,  34  Cal.  149;  Hathaway  v.  Patterson, 
45  Cal.  294;  Hibernia  Sav.  &  L.  Soc.  v. 
O'Grady,  47  Cal.  479.  A  demand  note  is 
due  immediately  upon  delivery,  and  the 
statute  commences  to  run  from  the  date 
thereof,  without  demand.  Jones  v.  Nicholl, 
82  Cal.  32;  22  Pac.  878;  Brummagim  v. 
Tallant,  29  Cal.  503;  89  Am.  Dec.  61;  Bell 
V.  Sackett,  38  Cal.  407;  Collins  v.  Driscoll, 
69  Cal.  550;  11  Pac.  244;  O'Neil  v.  Magner, 
81  Cal.  631;  15  Am.  St.  Rep.  88;  22  Pac. 
B76.  The  date  of  the  delivery,  and  not 
the  date  of  the  note,  fixes  the  period  from 
which  the  statute  runs  against  the  action 
on  the  note.  Collins  v.  Driscoll,  69  Cal. 
550;  11  Pac.  244.  An  absolute  and  uncon- 
ditional guaranty  of  the  payment  of  a 
note  is  broken  when  the  note  matures  and 
remains  unpaid;  the  statute  runs  from 
that  date.  Pierce  v.  Merrill,  128  Cal.  464; 
79  Am.  St.  Rep.  56;  61  Pac.  64;  Coburn  v. 
Brooks,  78  Cal.  443;  21  Pac.  2;  First  Nat. 
Bank  v.  Babcock,  94  Cal.  96;  28  Am.  St. 
Rep.  94;  29  Pac.  415;  London  etc.  Bank 
V.  Smith,  101  Cal.  415;  35  Pac.  1G27; 
Adams  v.  Wallace,  119  Cal.  67;  51  Pac.  14, 


The  action  against  a  surety  on  the  bond 
of  a  public  officer  does  not  accrue  until 
the  expiration  of  the  term  of  office  (People 
v.  Van  Ness,  76  Cal.  121;  18  Pac.  139; 
People  V.  Burkhart,  76  Cal.  606;  18  Pac. 
776),  and  the  statute  commences  to  run 
on  the  expiration  of  his  term  of  office. 
San  Francisco  v.  Heynemann,  71  Cal.  153; 
11  Pac.  870;  People  v.  Weineke,  122  Cal. 
535;  55  Pac.  579  (holding  that  the  statute 
begins  to  run  from  the  date  of  the  delin- 
quency). A  devise  to  one  for  life,  to  go, 
upon  the  death  of  the  devisee,  to  others, 
charged  with  the  payment  of  a  certain 
sum,  does  not  cause  the  obligation  of  pay- 
ment to  mature  until  the  death  of  the 
devisee.  Keir  v.  Keir,  155  Cal.  96;  99 
Pac.  487.  The  statute  does  not  commence 
to  run  against  a  cause  of  action  to  enforce 
specifically,  against  the  distributee  of  the 
estate  of  a  deceased  person,  a  written 
agreement  of  the  deceased  to  convey  to  an 
attorney  an  interest  in  a  water  right,  in 
consideration  of  his  services,  to  be  per- 
formed in  appealing  a  case,  involving  such 
right,  to  the  supreme  court,  until  the  final 
judgment  of  that  court  on  the  appeal. 
Archer  v.  Harvey,  164  Cal.  274;  128  Pac. 
410.  It  is  a  general  rule,  that  the  stat- 
ute does  not  begin  to  run,  when  no  admin- 
istration exists  on  the  decedent's  estate  at 
the  time  the  cause  of  action  accrues.  Es- 
tate of  Bullard,  116  Cal.  355;  48  Pac.  219; 
Hibernia  Sav.  &  L.  Soc.  v.  Boland,  145 
Cal.  626;  79  Pac.  365;  Heeser  v.  Taylor, 
1  Cal.  App.  619;  82  Pac.  977.  Where  a 
mortgagor  dies  after  the  statute  has  com- 
menced to  run,  an  action,  brought  more 
than  four  years  after  the  maturity  of  a 
note,  and  more  than  one  year  after  admin- 
istration is  awarded,  is  barred  (McMillan 
V.  Hayward,  94  Cal.  357;  29  Pac.  774);  it 
may  not  be  barred  as  against  the  estate, 
yet  barred  as  to  subsequent  grantees  made 
parties  as  claiming  an  interest  in  the  prem- 
ises. Hibernia  Sav.  &  L.  Soc.  v.  Farnham, 
153  Cal.  578,  583;  126  Am.  St.  Rep.  129; 
96  Pac.  9.  Where  a  note  and  mortgage  are 
not  mature  at  the  date  of  the  death  of 
the  mortgagor,  the  statute  does  not  com- 
mence to  run  until  letters  of  administra- 
tion are  issued  on  the  decedent's  estate, 
regardless  of  the  lapse  of  time  prior 
thereto.  Hibernia  Sav.  &  L.  Soc.  v.  Farn- 
ham,  153  Cal.  578;  126  Am.  St.  Rep.  129; 
96  Pac.  9;  Estate  of  Bullard,  116  Cal.  355; 
48  Pac.  219;  Hibernia  Sav.  &  L.  Soc.  v. 
Herbert,  53  Cal.  375;  Hibernia  Sav.  &  L. 
Soc.  V.  Conlin,  67  Cal.  178;  7  Pac.  477; 
Danglada  v.  De  la  Guerra,  10  Cal.  386; 
Smith  V.  Hall,  19  Cal.  85.  A  mortgage  by 
a  third  person,  to  secure  the  note  of  an- 
other, may  be  foreclosed  within  the  statu- 
tory period,  although  the  mortgagee  has 
lost  his  right  to  enforce  the  note,  by  fail- 
ure to  present  it  to  the  administrator  of 
the  deceased  maker.  Sichel  v.  De  Carrillo, 
42  Cal.  493.     The  death  of  one  mortgagor 


§337 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


184 


before  the  note  is  barred  does  not  affect 
the  bar  of  the  statute  as  to  his  co-mort- 
gagor. Hibernia  Sav.  &  L.  Soc.  v.  "Wacken- 
reuder,  99  Cal.  503;  34  Pac.  219.  The 
statute  does  not  run  on  a  promissory  note 
from  the  date  of  its  presentation  to  the 
executor  or  administrator,  but  from  the 
date  of  its  rejection  by  the  judge.  Nally 
V.  McDonald,  66  Cal.  530;  6  Pac.  390.  The 
cause  of  action  to  foreclose  a  mortgage  ac- 
crues on  the  maturity  of  the  note  secured 
thereby  (Belloc  v.  Davis,  38  Cal.  242; 
Mason  v.  Luce,  116  Cal.  232;  48  Pac.  72; 
Kichards  v.  Daley,  116  Cal.  336;  48  Pac. 
220),  notwithstanding  a  stipulation  that, 
on  default  of  the  payment  of  interest,  the 
same  should  become  due  and  payable. 
Mason  v.  Luce,  116  Cal.  232;  48  Pac.  72; 
Belloc  V.  Davis,  38  Cal.  242.  Where  an 
action  on  a  note  secured  by  mortgage  is 
barred,  an  action  to  foreclose  the  mortgage 
is  also  barred  (Lord  v.  Morris,  18  Cal. 
482;  McCarthy  v.  White,  21  Cal.  495;  82 
Am.  Dec.  754;  Heinlin  v.  Castro,  22  Cal. 
100;  Booth  V.  Hoskins,  75  Cal.  271;  17  Pac. 
225);  and  an  assignee  of  the  mortgagor 
mav  plead  the  statute.  McCarthy  v.  White, 
21 'Cal.  495;  82  Am.  Dec.  754;  Grattan  v. 
Wiggins,  23  Cal.  16.  No  time  being  speci- 
fied for  payment  in  a  mortgage  or  deed, 
the  presumption  is,  that  it  is  due  imme- 
diately, and  an  action  is  barred  in  four 
years  from  the  delivery  thereof.  Holmes  v. 
West,  17  Cal.  623;  Union  Water  Co.  v. 
Murphy's  Flat  Pluming  Co.,  22  Cal.  620; 
Espinosa  v.  Gregory,  40  Cal.  58;  Estate  of 
Galvin,  51  Cal.  215;  Dorland  v.  Dorland, 
€6  Cal.  189;  5  Pac.  77;  Newhall  v.  Sher- 
man, 124  Cal.  509;  57  Pac.  387.  A  mort- 
gage to  secure  a  debt,  not  evidenced  by  a 
■written  instrument,  is  also  within  the 
statute.  Union  Water  Co.  v.  Murphy's  Flat 
Pluming  Co.,  22  Cal.  620;  Sargent  v.  Wil- 
son, 5  Cal.  504;  Moss  v.  Warner,  10  Cal. 
296;  Mabury  v.  Ruiz,  58  Cal.  11.  Where 
several  notes,  secured  by  the  same  mort- 
gage, fall  due  on  different  dates,  the  stat- 
ute begins  to  run  from  the  date  of  matu- 
rity of  each  note.  Hibernia  Sav.  &  L.  Soe. 
V.  Herbert,  53  Cal.  375.  Coupons  on  mu- 
nicipal bonds  are  not  barred  until  the 
bonds  to  which  they  belong  are  barred 
(.Meyer  v.  Porter,  65  Cal.  67;  2  Pac.  884); 
but,  in  the  absence  of  any  promise  to  the 
contrary,  the  rule  is,  that  the  coupons  are 
independent  obligations,  at  least  when  de- 
tached and  transferred;  and  the  statute 
runs  from  the  maturity  of  each  (California 
Safe  Deposit  etc.  Co.  v.  Sierra  Vallevs  Ey. 
Co.,  158  Cal.  690;  Ann.  Cas.  1912 A,  729; 
112  Pac.  274);  and  where  the  interest  on 
a  note  is  payable  periodically,  and  on  de- 
fault the  whole  becomes  due  and  payable, 
the  statute  commences  to  run  on  the  ma- 
turity of  the  note.  Belloc  v.  Davis,  38  Cal. 
242.  An  action  for  money,  lost  by  deposit- 
ing it  in  a  bank  that  failed,  is  within  the 
statute,  which  begins  to  run  from  the  date 


of  the  failure.  San  Diego  County  v.  Dauer, 
131  Cal.  199;  63  Pac.  338;  and  see  People  v. 
Van  Ness,  79  Cal.  84;  12  Am.  St.  Rep.  134; 
21  Pac.  554;  Mason  v.  Luce,  116  Cal.  232;  48 
Pac.  72;  People  v.  Weineke,  122  Cal.  535; 
55  Pac.  579.  On  a  certificate  of  deposit 
issued  by  a  bank,  payable  on  demand,  the 
statute  begins  to  run  from  the  date  of 
issuance.  Brummagim  v.  Tallant,  29  Cal. 
503;  89  Am.  Dec.  61.  The  statute  does  not 
begin  to  run,  in  the  case  of  an  express 
trust,  until  there  is  brought  home  to  the 
plaintiff  a  knowledge  of  the  repudiation  of 
the  trust,  or  violation  of  its  terms  by  de- 
fendant. Allsopp  v.  Joshua  Hendy  Machine 
Works,  5  Cal.  App.  228;  90  Pac.  39.  In 
an  action  on  a  conditional  or  contingent 
contract,  the  cause  of  action  accrues  when 
the  condition  occurs.  Wolf  v.  Marsh,  54 
Cal.  228.  An  action  on  an  independent 
covenant  to  pay  the  purchase-money  for 
land,  without  any  date  fixed  for  the  deliv- 
ery of  the  deed,  is  barred  in  four  years 
from  the  date  on  which  payment  was  to 
be  made.  Donovan  v.  Judson,  81  Cal.  334; 
6  L.  R.  A.  591;  22  Pac.  682.  Where  a  con- 
tract for  the  delivery  of  water  fixes  no 
time  for  delivery,  but  there  is  an  admission 
that  it  was  to  be  made  on  a  certain  date, 
the  statute  begins  to  run  on  the  day  thus 
fixed,  where  there  is  a  failure  to  perform. 
Richter  v.  Union  Land  etc.  Co.,  129  Cal. 
367;  62  Pac.  39.  The  cause  of  action  on 
an  indemnity  bond  against  damages  ac- 
crues when  the  one  indemnified  has  paid. 
Oaks  V.  Scheifferly,  74  Cal.  478;  16  Pac. 
252.  If  an  action,  as  shown  by  the  record, 
is  not  for  an  accounting,  but  for  the  breach 
of  a  contract  to  pay  a  sum  when  a  sale 
was  made,  and  the  record  is  silent  as  to 
the  date  when  the  sale  was  made  and  the 
purchase-money  paid,  it  shows  no  statutory 
bar  of  the  cause  of  action.  Parker  v. 
Herndon,  19  Cal.  App.  451;  126  Pac.  183. 

Interruption  of  running  of  statute.  A 
distinction  must  be  made  between  a  new 
promise  made  before  an  action  upon  an 
original  contract  is  barred,  and  one  made 
thereafter;  when  it  is  made  before,  the 
debtor  merely  continues  his  liability  for  a 
longer  term,  and  the  action  is  based  upon 
the  original  promise;  in  other  words,  he 
merely  waives  so  much  of  the  period  of 
limitation  as  has  run  in  his  favor.  Con- 
cannon  V.  Smith,  143  Cal.  14;  66  Pac. 
40;  Southern  Pacific  Co.  v.  Pressor,  122 
Cal.  413;  52  Pac.  836;  55  Pac.  145.  An 
amended  complaint  setting  up  a  new  cause 
of  action,  where  the  bar  has  intervened 
after  the  commencement  of  the  action,  and 
before  the  filing  of  the  amended  complaint, 
is  barred  (Campbell  v.  Campbell,  133  Cal. 
33;  65  Pac.  134;  Anderson  v.  Mayers,  50 
Cal.  525;  Meeks  v.  Southern  Pacific  R.  R. 
Co.,  56  Cal.  513;  38  Am.  Rep.  67;  Spauld- 
ing  V.  Howard,  121  Cal.  194;  53  Pac.  563; 
Storer  v.  Austin,  136  Cal.  588;  69  Pac.  297; 


185 


WITHIN  FOUR  YEARS. 


§337 


Jeffers  v.  Cook,  58  Cal.  147);  but  where 
the  amendment  does  not  set  up  a  new 
cause  of  action,  it  is  not.  Rauer's  Law  etc. 
Co.  V.  LeflSngwell,  11  Cal.  App.  494;  105 
Pac.  427.  The  filing  of  the  complaint  sus- 
pends the  running  of  the  statute  as  to 
matters  arising  out  of  the  transaction  set 
forth  therein.  McDougald  v.  Hulet,  132 
Cal.  154;  64  Pac.  278;  Perkins  v.  West 
Coast  Lumber  Co.,  120  Cal.  27;  52  Pac. 
lis.  In  the  case  of  a  note  secured  by  a 
mortgage,  the  mortgagor  cannot,  as  against 
subsequent  lienholders,  or  the  holder  of 
the  equity  of  redemption,  prolong  the 
period  of  the  statute  as  to  an  action  to 
foreclose  on  the  security.  Lord  v.  Morris, 
IS  Cal.  482;  McCarthy  v.  White,  21  Cal. 
495;  82  Am.  Dec.  754;  Lent  v.  Morrill,  25 
Cal.  492;  Low  v.  Allen,  26  Cal.  141;  Lent 
V.  Shear,  26  Cal.  361.  The  prompt  pay- 
ment of  the  interest  on  a  note,  on  demand, 
when  it  falls  due,  does  not  extend  the 
period  within  which  an  action  may  be 
brought  to  foreclose  a  mortgage  given  to 
secure  the  note  (Pendleton  v.  Rowe,  34  Cal. 
149);  and  where  an  action  was  commenced 
before  the  death  of  the  maker,  the  filing 
of  a  supplemental  complaint  is  not  the 
commencement  of  a  new  action.  Hibernia 
Sav.  &  L.  Soe.  v.  Wackenreuder,  99  Cal. 
503;  34  Pac.  219.  An  amendment  to  a 
complaint  seeking  a  foreclosure  relates 
back  to  the  filing  of  the  action,  as  against 
the  original  parties  (Frost  v.  Witter,  132 
Cal.  421;  48  Am.  St.  Rep.  53;  64  Pac.  705); 
and  the  filing  of  the  complaint  suspends 
the  statute  as  to  matters  pleaded.  Perkins 
V.  West  Coast  Lumber  Co.,  120  Cal.  27; 
52  Pac.  118;  McDougald  v.  Hulet,  132  Cal. 
154;  64  Pac.  278.  An  agreement  to  pay, 
made  by  a  third  person,  in  writing  and 
for  a  valuable  consideration,  interrupts 
the  running  of  the  statute,  and  fixes  a 
new  date,  from  which  the  statute  runs  as 
to  such  third  person.  Hawk  v.  Barton,  130 
Cal.  654;  63  Pac.  64.  A  new  promise,  made 
before  the  bar  of  the  statute,  removes  the 
bar,  and  fixes  a  new  period,  from  which 
the  statute  begins  to  run.  Daniels  v.  .John- 
son, 129  Cal.  415;  79  Am.  St.  Rep.  123;  61 
Pac.  1107.  When  an  action  is  commenced 
within  the  period  of  the  statute,  the  sub- 
stitution of  the  pledge  securing  the  note 
is  not  the  substitution  of  a  new  cause  of 
action  so  as  to  raise  the  bar  of  the  statute. 
Merced  Bank  v.  Price,  9  Cal.  App.  177;  98 
Pac.  383.  The  renewal  of  a  note  secured 
by  mortgage  carries  with  it  an  extension 
of  the  lien  of  the  mortgage.  Lent  v.  Mor- 
rill, 25  Cal.  492.  The  lien  is  not  extin- 
guished by  lapse  of  time,  so  long  as  the 
principal  obligation  is  not  barred.  Worth 
V.  Worth,  15'5  Cal.  599;  102  Pac.  663. 
Where,  in  an  action  to  quiet  title,  a  mort- 
gage barred  by  the  statute  is  set  up,  to 
which  the  statute  is  pleaded,  a  decree  of 
foreclosure  cannot  be  entered.  Marshutz 
V.  Seltzor,  5  Cal.  App.  140;  89  Pac.  877. 
Where  the  real  cause  of  action  is  for  the 


recovery  of  money  on  a  promissory  note, 
a  prayer  for  relief  incidental  thereto  does 
not  remove  the  bar  of  the  statute.  Clausen 
v.  Meister,  93  Cal.  555;  29  Pac.  232.  If  a 
note  secured  by  mortgage  is  presented  as 
a  claim  against  the  estate  of  a  deceased 
mortgagor,  but  the  mortgage  is  not  pre 
sented,  the  statute  is  not  suspended  as  to 
the  mortgage;  and  if  not  7)rescnted  within 
the  time  jirescribed,  it  is  barred.  Regents 
of  University  v.  Turner,  159  Cal.  541; 
Ann.  Cas.  1912C,  1162;  114  Pac.  842.  The 
grantee  of  a  mortgagor  may  avail  himself 
of  the  bar  of  the  statute,  although  the 
running  thereof  against  the  mortgagor  has 
been  interrupted  by  his  death  or  by  his 
absence  from  the  state.  California  Title 
Ins.  etc.  Co.  v.  Miller,  3  Cal.  App.  54;  84 
Pac.  453.  A  sufficient  acknowledgment, 
in  writing,  of  the  indebtedness  takes  it 
out  of  the  operation  of  the  statute.  Worth 
v.  Worth,  155  Cal.  599;  102  Pac.  663.  An 
acknowledgment  or  promise,  made  while 
the  original  obligation  is  in  force,  is  an 
original  obligation,  and  lifts  the  bar  of  the 
statute.  McCormack  v.  Brown,  36  Cal.  ISO, 
95  Am.  Dec.  170;  Chaffee  v.  Browne,  109 
Cal.  211;  41  Pac.  1028;  London  etc.  Bank 
V.  Bandemann,  120  Cal.  220;  65  Am.  St. 
Rep.  179;  52  Pac.  583;  Southern  Pacific  Co. 
V.  Prosser,  122  Cal.  413;  52  Pac.  836;  55 
Pac.  145;  Rodgers  v.  Byers,  127  Cal.  528; 
60  Pac.  42;  Pierce  v.  Merrill,  128  Cal.  473; 
79  Am.  St.  Rep.  63;  61  Pac.  67;  Daniels 
v.  Johnson,  129  Cal.  415;  79  Am.  St.  Rep. 
123;  61  Pac.  1107;  Concannon  v.  Smith,  134 
Cal.  14;  66  Pac.  40;  Newhall  v.  Hatch,  134 
Cal.  269;  55  L.  R.  A.  673;  66  Pac.  266.  If 
an  unconditional  acknowledgment  or  prom- 
ise is  maiie  after  the  original  obligation  is 
barred,  the  action  is  upon  the  implied 
promise  raised  by  law  from  the  new  ac- 
knowledgment, or  on  the  new  express 
promise.  McCormick  v.  Brown,  36  Cal. 
180;  95  Am.  Dec.  170;  Chabot  v.  Tucker, 
39  Cal.  434;  Biddel  v.  Brizzolara,  56  Cal. 
374;  Lambert  v.  Schmalz,  118  Cal.  33;  50 
Pac.  13;  Southern  Pacific  Co.  v.  Prosser, 
122  Cal.  413;  52  Pac.  836;  55  Pac.  145; 
Rodgers  v.  Byers,  127  Cal.  52S;  60  Pac.  42; 
Concannon  v.  Smith,  134  Cal.  14;  66  Pac. 
40;  Dearborn  v.  Grand  Lodge,  138  Cal. 
658;  72  Pac.  154.  The  death  of  a  mort- 
gagor, pending  an  action  to  foreclose,  does 
not  abate  the  action,  but  it  may  be  prose- 
cuted against  his  representatives.  Union 
Sav.  Bank  v.  Barrett,  132  Cal.  453;  64  Pac. 
713,  1071. 

Pleading.  A  party  who  assumes  the  pay- 
ment of  a  mortgage  debt  cannot  plead  the 
statute:  all  defenses  against  the  mortgage, 
other  than  payment,  are  expressly  waived. 
Davis  V.  Davis,  19  Cal.  App.  797;  127  Pac. 
1051.  A  party  sued  under  a  fictitious  name 
cannot  set  up  the  intervention  of  the  stat- 
ute, subsequently  to  the  commencement  of 
the  action,  by  a  disclosure  of  his  true 
name.  Hoffman  v.  Keeton,  132  Cal.  195; 
64  Pac.  264;  Farris  v,  Merritt,  63  Cal.  118; 


1338 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


186 


Frost  V.  Witter,  132  Cal.  421;  84  Am.  St. 
Eep.  53;  64  Pac.  705.  The  bar  of  the 
statute  cannot  be  raised  by  demurrer,  un- 
less it  clearly  appears  on  the  face  of  the 
comjdaint.  Lloyd  v.  Davis,  123  Cal.  348; 
55  Pac.  1003.  Where  the  new  promise 
made  is  coupled  with  a  condition,  the  sub- 
stituted conditional  promise  must  be 
pleaded  on  an  action  brought  after  the  bar 
has  intervened  on  the  original  obligation. 
Curtis  V.  Sacramento,  70  Cal.  412;  11  Pac. 
748;  Eodgers  v.  Byers,  127  Cal.  528;  60 
Pac.  42. 

Actions  that  must  be  brought  within 
four  years.     See  note  post,  §  343. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  Construction  of  section.  This  section  has 
been  held  to  refer  to  contracts,  obligations,  and 
liabilities  resting  in  or  growing  out  of  written  in- 
struments, not  remotely  or  ultimately,  but  imme- 
diately. Thus,  where  two  persons  executed  a  note, 
one  as  principal,  and  the  other  as  surety,  and  a 
judgment  obtained  upon  the  note  is  paid  by  the 
surety,  the  obligation  of  the  principal  to  pay  the 
surety  is  not  "founded  upon  a  written  instru- 
ment" within  the  meaning  of  this  section.  Chip- 
man  V.  Morrill,  20  Cal.  131. 

2.  What  is  a  contract  in  writing.  An  order 
entered  on  the  books  of  a  corporation.  A  person 
acted  for  two  years  as  president  of  a  corporation, 
with  an  understanding  that  he  should  be  paid,  but 
with  no  agreement  to  that  effect,  or  as  to  com- 
pensation. Having  been  re-elected  for  the  third 
year,  the  trustees  made  an  order  as  follows:  "Or- 
dered that  the  compensation  of  the  president  be 
established  at  fifty  dollars  per  month."  And 
the  person  continued  to  serve  for  two  years  longer. 
Held:  that  such  order  was  a  contract  to  pay  past 
as  well  as  future  services  at  the  rate  of  fifty  dol- 
lars per  month  and  that  the  order  was  a  contract 
in  writing,  within  the  meaning  of  the  statute  of 
limitations,  both  for  past  as  well  as  present  pay, 
and  that  the  statute  ran  only  from  the  date  of  the 
order.  Rosborough  v.  Shasta  River  Canal  Co., 
22  Cal.  556. 

3.  Audited  accounts.  Accounts  with  the  words 
"audited  and  approved"  and  "certified  to  be  cor- 
rect." writt.  n  on  their  face,  are  instruments  in 
writing,  within  the  meaning  of  this  section.  San- 
nickson  v.  Brown.  5  Cal.  57.  Statute  runs  from 
maturity  of  contract.  The  right  of  action  upon  a 
contract  in  writing  is  not  barred  until  the  lapse 
of  four  years  after  maturity.  Bagley  v.  Eaton  10 
Cal.  126. 


4.  Lost  contract.  The  fact  that  the  contract 
was  in  writing,  and  not  the  present  existence  of 
the  writing  itself,  determines  the  time  within 
which  the  action  must  be  brought.  Bagley  v. 
Eaton.  10  Cal.  126. 

5.  Published  offer  of  reward  held  to  be  a  con- 
tract in  writing,  etc.  Rver  v.  Stockwell,  14  Cal. 
134;  73  Am.  Dec.  634. 

6.  City  bonds,  and  bonds  of  municipal  corpora- 
tions, to  provide  for  payment  of  indebtedness, 
when  not  barred  by  statute  of  limitations.  Under- 
bill V.  Trustees  of  City  of  Sonora,  17  Cal.  173. 

7.  Actions  on  promissory  notes.  Banks  v.  Mar- 
shall, 23  Cal.  223. 

8.  Certificates  of  deposit.  And  of  the  same 
nature  as  promissory  notes  are  certificates  of  de- 
posit. The  statute  runs  from  the  date,  and  no 
demand  is  required  to  set  the  statute  in  motion. 
Brumagim  v.  Tallant,  29  Cal.  503;  89  Am.  Dec. 
61. 

9.  Note  and  mortgage.  A  note  payable  six 
months  after  date,  with  interest  monthly,  in  ad- 
vance, and  "in  case  the  said  interest  or  any  por- 
tion thereof,  should  become  due,  and  remain  unpaid 
after  demand,  then  the  mortgage  given  by  me, 
of  even  date  herewith,  which  is  given  to  secure 
the  payment  of  this  note,  may  be  foreclosed," 
etc.;  and  the  mortgage  contained  a  provision  by 
which  the  mortgagee  was  "empowered  to  fore- 
close said  mbrtgage,  according  to  the  provisions 
in  said  note  contained."  The  court  held  that 
the  prompt  payment  of  the  interest  on  demand, 
when  it  fell  due.  did  not,  under  these  clauses 
in  the  note  and  mortgage,  prolong  the  time  of 
payment  beyond  the  time  specified  in  the  note, 
and  that  a  cause  of  action  accrued  upon  the  note, 
and  to  foreclose  the  mortgage,  immediately  upon 
the  expiration  of  the  six  months,  although  there 
had  been  no  default  in  the  payment  of  interest. 
An  action  not  commenced  within  four  years  after 
the  expiration  of  six  months  from  date  of  the 
note,  is  barred  by  the  statute  of  limitations. 
Pendleton  v.  Rowe,  34  Cal.  149. 

10.  Mortgage.  A  mortgage  given  to  secure  a 
payment  of  a  dfbt,  of  which  there  is  no  written 
agreement,  is  yet  a  contract,  "founded  upon  an 
instrument  in  writing'^;  and  an  action  may  be 
had  at  any  time  within  four  years  of  the  breach 
of  the  morteage,  although  the  original  debt  has 
become  barred.  Union  Water  Co.  v.  Murphy's 
Flat  Fluming  Co.,  22  Cal.  620. 

11.  For  actions  of  foreclosure  and  redemption, 
etc.  See  Grattan  v.  Wiggins,  23  Cal.  16;  Cun- 
ningham V.  Hawkins,  24  Cal.  403;  85  Am.  Dec. 
73. 

12.  Generally.  See  note  to  §  312,  ante,  com- 
menting on  McCarthy  v.  White,  21  Cal.  495;  82 
Am.  Dec.  754:  see  Grattan  v.  Wiggins,  23  Cal. 
16;  see  also  Pearis  v.  Covillaud,  6  Cal.  617;  65 
Am.  Dec.  543;  Lord  v.  Morris,  18  Cal.  482,  com- 
mented on  in  note  to  §  312,  ante. 


§  338.     Within  three  years.     Within  three  years : 

1.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture ; 

2.  An  action  for  trespass  upon  real  property ; 

3.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels,  in- 
cluding actions  for  the  specific  recovery  of  personal  property; 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake.  The  cause  of 
action  in  such  case  not  to  be  deemed  to  have  accrued  until  the  discovery,  by 
the  aggrieved  party,  of  the  facts  constituting  the  fraud  or  mistake. 

V.    Robinson,   163    Cal.   648;    126   Pac.   485. 


Statutory  penalty.    See  post,  §  340.  subd.  1. 

Executor  or  administrator.  Limitation  of  ac- 
tions to  set  aside  sale,  three  years.    T'ust.  §  1573. 

Corporations  and  stockholders,  limitation  as 
to.     S.-.-  post,  §  359. 

Legislation  8  338.  Enacted  March  11,  1873; 
based   on   Stats.    1850,   p.    :!4:;. 

Construction  of  section.  This  section 
must  be  construed  with  §  318,  ante.    Unkel 


Similar  statutes  of  limitation  should  re- 
ceive the  same  construction.  Lightner 
Mining  Co.  v.  Lane,  161  Cal.  689;  Ann. 
Cas.  1913C,  1093:  120  Pac.  771. 

When  section  inapplicable.  This  section 
does  not  apply  to  an  action  to  recover  the 
amount    of    an    assessment    levied    on    the 


187 


WITHIN   THREE   YEARS. 


§338 


capital  stook  of  a  corporation  (Glenn  v. 
Saxton,  68  Cal.  353;  9  Pac.  4-20);  nor  to  an 
action  against  an  innkeeper  as  the  insurer 
of  the  goods  and  property  of  his  guests 
(Churchill  v.  Pacific  Improvement  Co.,  96 
Cal.  490;  31  Pac.  460);  nor  to  an  action  to 
recover  a  fund  based  upon  a  contract  be- 
tween the  state  and  the  purchaser  of 
swamp-lands  (Miller  &  Lux  v.  Batz,  131 
€al.  402;  63  Pac.  680);  nor  to  an  action  for 
the  actual  damages  presupposed  in  the 
treble  damages  provided  for  in  §  3344  of 
the  Political  Code,  for  negligently  causing 
loss  bv  fire  (Phoenix  Ins.  Co.  v.  Pacific 
Lumber  Co.,  1  Cal.  App.  156;  81  Pac.  976); 
nor  to  an  action  for  breach  of  warranty 
(Brackett  v.  Martens,  4  Cal.  App.  249;  87 
Pac.  410;  Murphy  v.  Stelling,  8  Cal.  App. 
702;  97  Pac.  672);  nor  to  an  action 
-against  a  bank,  by  one  of  its  depositors, 
for  damages  resulting  from  its  refusal  to 
pay  checks  drawn  upon  it  by  the  plaintiff. 
Smith's  Cash  Store  v.  First  Nat.  Bank,  149 
Cal.  32;  5  L.  R.  A.  (N.  S.)  870;  84  Pac. 
663. 

Liability  created  by  statute.  Where  the 
liability  of  a  defendant  depends  upon  the 
provisions  of  a  statute,  and  the  relief  de- 
manded by  the  plaintiff  is  derived  from 
the  statute,  and,  but  for  the  statute,  would 
Tiave  no  existence,  the  action  is  upon  a 
liability  created  by  statute,  and  is  there- 
fore barred  in  three  vears.  Harby  v.  Board 
of  Education,  2  Cal.  App.  418;  83  Pac. 
1081;  and  see  Miller  &  Lux  v.  Batz,  142 
€al.  447;  76  Pac.  42.  The  nature,  and  not 
the  form,  of  the  cause  of  action,  deter- 
mines the  applicability  of  the  statute  of 
limitations.  Miller  &  Lux  v.  Batz,  131 
Cal.  402;  63  Pac.  680.  A  proceeding  in 
mandamus,  to  compel  the  issuance  of  a 
warrant  for  a  claim  duly  audited,  is  within 
this  section  (Barber  v.  Mulford,  117  Cal. 
356;  49  Pac.  206),  as  is  also  an  action  by 
the  secretary  of  a  county  board  of  educa- 
tion to  recover  for  services  (Banks  v.  Yolo 
County,  104  Cal.  258;  37  Pac.  900);  and  an 
action  against  a  recorder  for  the  non-pay- 
ment of  fees  (Sonoma  Countv  v.  Hall,  132 
Cal.  589;  62  Pac.  257,  312;  65  Pac.  12,  459; 
Higbv  V.  Calaveras  Countv,  18  Cal.  176; 
People  V.  Van  Ness,  76  Cal,  121;  18  Pac. 
139) ;  and  an  action  by  a  district  attorney 
for  commissions  on  moneys  collected  and 
■debts  recovered  by  him  for  the  county 
(Higby  V.  Calaveras  County,  IS  Cal.  176); 
and  an  action  to  recover  municipal  taxes 
<Perry  v.  Washburn,  20  Cal.  318;  People  v. 
McCreerv,  34  Cal.  432;  People  v.  Hulbert, 
71  Cal.  72;  12  Pac.  43;  San  Francisco  v. 
Luning,  73  Cal.  610;  15  Pac.  311;  Lewis  v. 
Rothchild,  92  Cal.  625;  28  Pac.  805;  Los 
Angeles  Countv  v.  Ballerino,  99  Cal.  593; 
32  Pac.  581;  34  Pac.  329;  San  Diego  v. 
Higgins,  115  Cal.  170;  46  Pac.  923;  Dranga 
V.  Rowe,  127  Cal.  506;  49  Pac.  944);  and 
an  action  against  a  city  to  recover  for 
street  improvements  (Connolly  v.  San 
Francisco,    4    Cal.    Unrep.     134;     33    Pac. 


1109);  and  an  action  against  the  principal 
on  an  official  surety  bond  (Sonoma  County 
V.  Hall,  132  Cal.  589;  62  Pac.  257,  312;  65 
Pac.  459;  Paige  v.  Carroll,  61  Cal.  211), 
but  the  cause  of  action  is  on  the  misfeas- 
ance of  the  officer,  not  on  the  bond.  So- 
noma County  V.  Hall,  132  Cal.  589;  62  Pac. 
257.  312;  65  Pac.  12,  459;  Ventura  County 
V.  Clay,  114  Cal.  242;  46  Pac.  9.  The  stat- 
ing of  an  account  by  the  controller  does 
not  create  a  new  cause  of  action  nor  toll 
the  statute.  People  v.  Melone,  73  Cal.  574; 
15  Pac.  294;  People  v.  Van  Ness,  76  Cal. 
121;  18  Pac.  139.  An  action  against  a 
state  commissioner  to  recover  for  fees  un- 
lawfully retained,  is  barred  in  three  years 
after  the  expiration  of  his  term  of  office. 
People  v.  Van  Ness,  76  Cal.  121;  18  Pac. 
139;  San  Francisco  v.  Heynemann,  71  Cal. 
153;  11  Pac.  870.  In  an  action  on  the 
bond  of  a  county  treasurer,  the  statute 
begins  to  run  when  the  loss  becomes  known 
to  the  county,  and  a  failure  to  pay  at  the 
end  of  his  term  of  office  does  not  create 
a  new  cause  of  action.  San  Diego  County 
V.  Dauer,  131  Cal.  199;  63  Pac.  338.  An 
action  on  a  stockholder's  liability  for  the 
debts  of  a  corporation  is  barred  in  three 
years  from  the  date  when  the  debt  was 
contracted  (Green  v.  Beckman,  59  Cal. 
545;  Moore  v.  Boyd,  74  Cal.  167;  15  Pac. 
670;  Hyman  v.  Coleman,  82  Cal.  650;  16 
Am.  St.  Rep.  178;  23  Pac.  62;  Redington 
v.  Cornwell,  90  Cal.  49;  27  Pac.  40;  Hunt 
v.  Ward,  99  Cal.  612;  37  Am.  St.  Rep.  87; 
34  Pac.  335;  Bank  of  San  Luis  Obispo  v. 
Pacific  Coast  S.  S.  Co.,  103  Cal.  594;  37 
Pac.  499;  Santa  Rosa  Nat.  Bank  v.  Bar- 
nett,  125  Cal.  407;  58  Pac.  85;  Nellis  v. 
Pacific  Bank,  127  Cal.  166;  59  Pac.  830; 
Jones  v.  Goldtree  Bros  Co.,  142  Cal,  383; 
77  Pac,  939),  and  contributions  among 
stockholders  is  regulated  by  the  same  linu- 
tation  (Redington  v.  Cornwell,  90  Cal.  49; 
27  Pac.  40);  and  the  giving  of  a  note  by 
stockholders  will  not  toll  the  liabilitv. 
Hunt  V.  Ward,  99  Cal.  612;  37  Am.  St.  Rep. 
87;  34  Pac.  335;  Bank  of  San  Luis  Obispo 
V.  Pacific  Coast  S.  S.  Co.,  103  Cal.  594;  37 
Pac.  499;  Winona  Wagon  Co.  v.  Bull,  108 
Cal.  1;  40  Pac.  1077;  Santa  Rosa  Nat. 
Bank  v.  Barnett,  125  Cal.  407;  58  Pac.  85; 
Goodall  V.  Jack,  127  Cal.  258;  59  Pac.  575. 
An  action  to  enforce  the  statutory  liabil- 
ity imposed  by  the  laws  of  a  sister  state 
upon  the  stockholders  in  a  banking  corpo 
ration,  for  its  corporate  debts,  is  barred 
in  three  years  from  the  time  the  cause  of 
action  arose.  Miller  v.  Lane,  160  Cal.  90; 
116  Pac.  58.  An  action  against  a  stock- 
holder of  a  bank,  to  recover  for  a  deposit 
made  with  the  bank,  is  limited  to  three 
years  from  the  date  of  the  deposit.  Wells 
V.  Black,  117  Cal.  157;  59  Am.  St.  Rep. 
162;  37  L.  R.  A,  619;  48  Pac,  1090;  Nellis 
V.  Pacific  Bank,  127  Cal.  166;  59  Pac.  830. 
The  liability  of  the  stockholders  of  a  cor- 
poration for  an  overdraft  is  limited  to 
three   years   after   the   overdraft,   and   the 


§338 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


188 


subsequent  giving  of  a  promissory  note  for 
such  overdraft  cannot  toll  the  statute  as 
to  the  stockholders'  liability.  Santa  Kosa 
Bank  v.  Barnett,  125  Cal.  407;  58  Pac.  85. 
An  installment  paid  on  an  assessment  of  a 
reclamation  district,  without  suit,  after 
default,  estops  the  defendant  from  con- 
tending that  the  statute  commenced  to  run 
on  the  date  fixed  by  statute.  Reclamation 
District  V.  Hall,  131  Cal.  662;  63  Pac.  1000. 
An  action  to  enforce  the  assessment  of  a 
swamp-land  district  is  barred  in  three 
vears  after  the  cause  of  action  accrued 
'(People  V.  Hulbert,  71  Cal.  72;  12  Pac.  43), 
and  mandamus  to  compel  the  levy  of  a 
tax  on  the  swamp  lands  is  also  barred 
(Barnes  v.  Glide,  117  Cal.  1;  59  Am.  St. 
Rep.  153;  48  Pac.  804),  as  is  also  an  action 
in  mandamus,  by  a  teacher,  to  secure  rein- 
statement. Harby  v.  Board  of  Education, 
2  Cal.  App.  418;  83  Pac.  1081.  An  action 
in  quo  warranto  for  the  usurpation  of  a 
franchise  is  not  subject  to  the  bar  of  the 
statute,  because  a  continued  use  of  the 
franchise  without  right  is  renewed  usurpa- 
tion, on  which  a  new  cause  of  action  arises 
each  day.  People  v.  Stanford,  77  Cal.  360; 
2  L.  R."  A.  92;  18  Pac.  85;  19  Pac.  693. 
One  claiming  fraud  in  the  execution  of  a 
deed  has  actual  notice  of  the  contents 
thereof  when  the  deed  is  signed,  and  con- 
structive notice  from  its  recordation. 
Loeffler  v.  Wright,  13  Cal.  App.  224;  109 
Pac.  269.  In  the  case  of  a  trustee  of  an 
involuntary  or  constructive  trust,  no  dis- 
affirmance of  the  trust  is  necessary  to  set 
the  statute  of  limitations  in  motion;  but 
the  rule  is  otherwise  in  voluntary  trusts. 
Earle  v.  Bryant,  12  Cal.  App.  553;  107 
Pac.  1018.  The  first  subdivision  of  this 
section  is  not  applicable  to  a  proceeding 
by  a  ward,  after  attaining  majority,  to 
compel  a  settlement  of  accounts  by  the 
guardian.  Cook  v.  Ceas,  147  Cal.  614;  82 
Pac.  370. 

Trespass  on  real  property.  This  section 
governs  actions  to  recover  damages  for 
depasturing  lands  (Triscony  v.  Branden- 
stein,  66  Cal.  514;  6  Pac.  384;  Zumwalt  v. 
Dickey,  92  Cal.  156;  28  Pac.  212),  and  a 
statute  which  gives  a  remedy,  by  process 
in  rem,  against  the  cattle  themselves,  does 
not  take  away  the  remedy  to  recover  dam- 
ages, where  they  have  not  been  distrained; 
but  the  failure  of  the  proprietor  to  do,  in 
connection  with  the  land,  what  the  law  re- 
quires, may  be  availed  of  as  a  defense. 
Triscony  v.  Brandenstein,  66  Cal.  514;  6 
Pac.  384.  This  section  is  not  applicable  to 
an  action  to  quiet  title,  against  a  deed 
given  bv  the  plaintiff.  De  Leonis  v.  Ham- 
mel,  1  Cal.  App.  390;  82  Pac.  349.  The  en- 
tire cause  of  action,  for  an  injury  to  land 
or  a  trespass  upon  real  property,  accrues 
when  the  injury  is  inflicted  or  the  trespass 
committed,  and  is  barred,  unless  suit  is 
brought  within  three  years.  Williams  v. 
Southern  Pacific  R.  R.  Co.,  150  Cal.  624;  89 
Pac.   599.     An   action   to  recover  the   pos- 


session of  real  property,  within  the  mean- 
ing of  the  five-year  statute  prescribed  by 
§  318,  ante,  is  not  subject  to  the  three-year 
limitation  after  discovery  of  the  fraud 
established  by  the  fourth  subdivision  of 
this  section.  Murphy  v.  Crowley,  140  Cal. 
141;  73  Pac.  820.  An  action  to  recover 
damages  for  injury  to  adjoining  lands, 
caused  by  a  bulkhead,  is  not  within  this 
section  (Hicks  v.  Drew,  117  Cal.  305;  49 
Pac.  189;  Zumwalt  v.  Dickey,  92  Cal.  156; 
28  Pac.  212;  Connifif  v.  San  Francisco,  67 
Cal.  45;  7  Pac.  41);  neither  is  an  action  to 
recover  damages  for  the  erection  of  a 
levee  which  deflects  a  river  (Daueri  v. 
Southern  California  Ry.  Co.,  122  Cal.  507  j 
55  Pac.  243;  De  Baker  v.  Southern  Cali- 
fornia Ry.  Co.,  106  Cal.  257;  46  Am.  St. 
Rep.  237^  39  Pac.  610);  but  an  action  to 
recover  damages  for  the  construction  of  a 
railroad,  without  condemnation,  is  within 
this  section  (Robinson  v.  Southern  Cali- 
fornia Ry.  Co.,  129  Cal.  8;  61  Pac.  947),  as 
is  also  an  injunction  to  prevent  an  entry 
upon  land  (Smithers  v.  Fitch,  82  Cal.  153; 
22  Pac.  935),  and  an  action  for  damages 
quare  clausum  fregit.  Potter  v.  Ames,  43 
Cal.  75.  The  erection  of  an  embankment 
across  a  natural  watercourse,  in  such  man- 
ner as  to  obstruct  the  natural  flow,  and 
thereby  cause  the  flooding  of  lands  adjoin- 
ing, is  a  continuing  trespass  (Conniff  v. 
San  Francisco,  67  Cal.  45;  7  Pac.  41);  but 
this  doctrine  applies  only  where  perma- 
nent flooding  amounts  to  a  taking.  Hicks 
v.  Drew,  117  Cal.  305;  49'  Pac.  189.  The 
statute  does  not  commence  to  run  against 
the  right  to  maintain  an  action  for  flood- 
ing lands  until  actual  injury  is  sustained. 
Galbreath  v.  Hopkins,  159  Cal.  297;  113 
Pac.  174.  Where,  in  an  action  of  trespass, 
the  complaint  is  amended  to  include  a  par- 
cel of  land  inadvertently  omitted,  the  fil- 
ing of  the  original  complaint  does  not  stop 
the  running  of  the  statute  against  the  tres- 
pass upon  the  omitted  parcel  (Atkinson  v. 
Amador  etc.  Canal  Co.,  53  Cal.  102);  but 
subsequent  damages,  pending  the  trial  of 
the  action,  may  be  recovered  without  an 
amended  complaint.  McLennan  v.  Ohmen, 
75  Cal.  558;  17  Pac.  687;  Hicks  v.  Drew, 
117  Cal.  305;  49  Pac.  189. 

Claim  and  delivery.  An  action  of  claim 
and  delivery  must  be  brought  within  three 
vears  after  the  conversion  bv  the  bailee.  ' 
Latta  V.  Tutton,  122  Cal.  279;  68  Am.  St. 
Rep.  30;  54  Pac.  844.  An  action  for  un- 
lawful taking  and  detaining  can  be  taken 
at  any  time  within  three  vears.  McCusker 
V.  Walker,  77  Cal.  208;  19  Pac.  382.  The 
third  subdivision  of  this  section  is  appli- 
cable to  all  cases  "of  unlawful  taking  or 
detaining  of  personal  property,"  whatever 
the  form  of  action.  Bell  v.  Bank  of  Cali- 
fornia, 153  Cal.  234;  94  Pac.  889. 

Conversion  of  property.  Conversion  is 
any  distinct  act  of  dominion  wrongfully 
exercised  over  the  property  of  another 
(Horton  v.  Jack,  4  Cal.  Unrep.  758;  37  Pac. 


189 


WITHIN   THREE   YEARS. 


§338 


652) ;  and  a  refusal  to  surrender  property 
on  tender  and  demand  is  a  wrongful  con- 
version (Latta  V.  Tutton,  122  Cal.  279;  68 
Am.  St.  Rep.  30;  54  Pac.  844),  an  action 
for  which  is  within  this  section.  Lowe  v. 
Ozmun,  137  Cal.  257;  70  Pac.  87;  Allsopp 
V.  Joshua  Hendy  Machine  Works,  5  Cal. 
App.  228;  90  Pac.  39.  Property  deposited 
for  safe-keeping  is  converted,  where  there 
is  a  demand  and  a  refusal  to  surrender; 
the  statute  commences  to  run  from  that 
time  (Doyle  v.  Callaghan,  67  Cal.  154;  7 
Pac.  418);  but  where  property  is  deposited 
with  another  for  safekeeping,  and  he  tor- 
tiously  converts  it  to  his  own  use,  and  con- 
veys it  to  another,  the  statute  commences 
to  run,  as  against  such  other  person,  at  the 
time  he  acquires  possession.  Karpending 
V.  Meyer,  55  Cal.  555.  An  action  for  col- 
laterals may  be  maintained  at  any  time 
within  three  years  after  the  refusal  of  de- 
mand for  their  return.  Scrivner  v.  Wood- 
ward, 139  Cal.  314;  73  Pac.  863.  Money 
deposited  to  be  kept  until  demanded  con- 
stitutes an  express  trust,  and  the  statute 
does  not  commence  to  run  until  demand  is 
made.  Zuck  v.  Culp,  59  Cal.  142.  An  ac- 
tion on  the  bond  of  a  sheriff,  for  the  con- 
version of  property  levied  upon  and  sold 
under  attachment,  is  within  this  section 
(Paige  v.  Carroll,  61  Cal.  211);  as  is  also 
any  action  for  trover  and  conversion.  Bell 
v.  Bank  of  California,  153  Cal.  234;  94 
Pac.  889. 

Relief  from  fraud.  Actions  for  relief  on 
the  ground  of  fraud  must  be  commenced 
within  three  j'ears  from  the  time  the  cause 
of  action  accrued  (People  v.  Blankenship, 
52  Cal.  619;  Doyle  v.  Callaghan,  67  Cal. 
154;  7  Pac.  418;  Croghan  v.  Spence,  71 
Cal.  124;  12  Pac.  719;  Gregory  v.  Spieker, 
110  Cal.  150;  52  Am.  St.  Rep.  70;  42  Pac. 
576;  Hunter  v.  Milam,  133  Cal.  601;  65 
Pac.  1079) ;  but  where  fraud  is  relied  upon 
as  a  defense,  and  no  affirmative  relief  is 
asked,  the  three-year  limitation  does  not 
apply.  McColgan  v.  Muirland,  2  Cal.  App. 
6;  82  Pac.  1113.  Wihere  fraud  is  only  an 
incident  to  the  real  cause  of  action,  this 
section  does  not  apply  (Clausen  v.  Meister, 
93  Cal.  555;  29  Pac.  232;  Murphv  v.  Crow- 
ley, 140  Cal.  141;  73  Pac.  820;  Oakland  v. 
Carpentier,  13  Cal.  540;  Stewart  v.  Thomp- 
son, 32  Cal.  260;  Goodnow  v.  Parker,  112 
Cal.  437;  44  Pac.  738;  Campbell  v.  Camp- 
bell, 133  Cal.  33;  65  Pac.  134;  McColgan 
v.  Muirland,  2  Cal.  App.  6;  82  Pac.  1113); 
but  the  action  is  controlled  by  the  statute 
of  limitations  prescribed  in  §  318,  ante. 
Murphy  v.  Crowley,  140  Cal.  141;  73  Pac. 
820  (reversing  Murphy  v.  Crowley,  70  Pac. 
820);  Page  v.  Garver,  146  Cal.  577;  80 
Pac.  860.  An  action  to  cancel  a  patent  for 
land,  procured  by  fraud,  must  be  brought 
within  three  years  from  the  time  the  cause 
of  action  accrued  (People  v.  Blankenship, 
.52  Cal.  619) ;  as  also  must  any  other  ac- 
tion affecting  real  property  for  relief  on 
the  ground  of  fraud  (Duff  v.  Duff,  71  Cal. 


513;  12  Pac.  570;  Gregory  v.  Spieker,  110 
Cal.  150;  52  Am.  St.  Rep.  70;  42  Pac.  576; 
Murphy  v.  Crowley,  140  Cal.  141;  73  Pac. 
820;  Boyd  v.  Blankman,  29  Cal.  19;  87  Am. 
Dec.  146;  Richards  v.  Farmers'  etc.  Bank, 
7  Cal.  App.  387;  94  Pac.  393;  People  v. 
Blankenship,  52  Cal.  619);  such  as  actions 
for  the  reformation  of  a  deed  (Breen  v. 
Donnelly,  74  Cal.  301;  15  Pac.  845),  and  to 
quiet  title  on  the  ground  of  fraud.  Cro- 
ghan V.  Spence,  71  Cal.  124;  12  Pac.  719. 
Where  the  statutory  period,  from  the  date 
of  the  fraud,  has  not  expired,  the  right  to 
maintain  the  action  is  governed,  not  by 
the  doctrine  of  laches,  but  by  the  statute 
of  limitations.  Estudillo  v.  Security  Loan 
etc.  Co.,  149  Cal.  556;  87  Pac.  19.  '  Where 
leave  to  file  an  amended  complaint  is  de- 
nied, and,  pending  an  appeal  from  such 
order,  the  statute  has  run,  upou»  reversal 
of  the  order  an  amended  complaint  may 
be  filed  as  of  the  date  leave  was  asked. 
Hutchinson  v.  Ainsworth,  73  Cal.  452;  2 
Am.  St.  Rep.  823;  15  Pac.  82.  An  action 
to  enforce  a  liability  against  directors,  on 
the  ground  of  fraud,  is  governed  by  this 
section  (Fox  v.  Hale  &  Norcross  etc.  Min. 
Co.,  108  Cal.  369;  41  Pac.  308);  as  is  also 
an  action  against  a  board  of  directors  for 
the  fraudulent  issuance  of  stock  (Smith  v. 
Martin,  135  Cal.  247;  67  Pac.  779),  and  an 
action  for  the  fraudulent  sale  thereof 
(Marks  v.  Evans,  6  Cal.  Unrep.  505;  62 
Pac.  76),  and  an  action  to  set  aside  a  deed, 
on  the  ground  of  fraud  (Watkins  v. 
Bryant,  91  Cal.  492;  27  Pac.  775;  Castro 
V.  Geil,  110  Cal.  292;  52  Am.  St.  Rep.  84; 
42  Pac.  804);  and  a  decree  of  divorce 
(Prewett  v.  Dyer,  107  Cal.  154;  40  Pac. 
105);  but  this  section  does  not  apply  to 
actions  to  quiet  title  against  a  deed,  where 
the  grantee  is  charged  with  a  constructive 
trust  in  favor  of  the  grantor,  or  where 
the  deed  is  procured  as  a  mortgage  to  pay 
past  and  future  advances.  De  Leonis  v. 
Hammel,  1  Cal.  App.  390;  82  Pac.  349. 
The  mere  right  to  commence  an  action  for 
fraud  is  not  assignable  (Archer  v.  Free- 
man, 124  Cal.  528;  57  Pac.  474;  Sanborn 
V.  Doe,  92  Cal.  152;  27  Am.  St.  Rep.  101; 

28  Pac.    105;    Whitney   v.   Kelley,   94   Cal. 
146;  28  Am.  St.  Rep.  106;  15  L.  R.  A.  813; 

29  Pac.  624;  Emmons  v.  Barton,  109  Cal. 
662;  42  Pac.  303);  so  that  the  cause  of 
action  of  a  creditor,  seeking  to  have  a 
fraudulent  conveyance  set  aside,  accrues, 
and  the  statute  begins  to  run,  not  on  the 
date  of  the  fraudulent  conveyance,  but  on 
the  date  on  which  he  recovers  judgment 
against  the  creditor  (Brown  v.  Campbell, 
100  Cal.  635;  38  Am.  St.  Rep.  314;  35  Pac. 
433;  Forde  v.  Exempt  Fire  Co.,  50  Cal. 
299;  Ohm  v.  Superior  Court,  85  Cal.  545; 
20  Am.  St.  Rep.  245;  26  Pac.  244);  and 
the  cause  of  action  does  not  accrue  on  the 
recovery  of  the  judgment,  if  the  judgment 
creditor  has  not  discovered  the  fraud 
(Brown  v.  Campbell,  100  Cal.  6.35;  38  Am 
St.  Rep.  314;  35  Pac.  433;  Shiels  v.  Nathan, 


§338 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


190 


12  Cal.  App.  604;  108  Pac.  34;  Vance  v. 
Supreme  Lodge,  15  Cal.  App.  178;  114  Pac. 
83);  but  the  allegations  must  show  that 
the  acts  of  fraud  were  committed  under 
such  circumstances  that  the  injured  party 
could  not  be  presumed  to  have  any  knowl- 
edge of  them.  Deuike  v.  Santa  Clara  Val- 
ley Society,  9  Cal.  App.  228;  98  Pac.  687. 
The  statute  commences  to  run  against  an 
action  to  cancel  a  fraudulent  deed  by  a 
judgment  creditor,  who  has  received  a 
sheriff's  deed  to  the  debtor's  land,  from 
the  date  of  the  sheriff's  deed.  Chalmers  v. 
Sheehv,  132  Cal.  459;  84  Am.  St.  Eep.  62; 
64  Pac.  709. 

Action  on  the  ground  of  mistake.  An 
action  to  correct  a  mutual  mistake  is 
barred  in  three  years  from  the  discovery 
of  the  mistake.  Eureka  v.  Gates,  137  Cal. 
89;  69  Pa^.  850.  The  limitation  of  the  ac- 
tion is  three  years  from  the  date  of  the 
mistake;  after  the  lapse  of  three  years,  the 
complaint  must  contain  allegations  show- 
ing that  the  mistake  was  discovered 
within  the  three  years.  Smith  v.  Irving, 
3  Cal.  Unrep.  121;  22  Pac.  170.  Knowl- 
edge, by  the"  defendant,  of  the  mistake  is 
immaterial:  he  still  has  the  right  to  rely 
upon  the  mistake,  where  action  is  not 
brought  within  three  years.  Shain  v. 
Sresovich,  104  Cal.  402;  38  Pac.  51.  An 
action  to  recover  an  excess  payment  in 
redemption  of  land,  sold  for  taxes,  cannot, 
by  a  mistake  of  the  auditor,  discovered 
within  three  years,  be  presented  to  a  board 
of  supervisors  and  an  allowance  made  a 
year  after  the  statute  has  run.  Perrin  v. 
Honeycutt,  144  Cal.  87;  77  Pac.  776.  This 
section  is  not  applicable  in  an  action  to 
compel  a  conveyance  to  a  corrected  divis- 
ion line,  agreed  upon  by  adjoining  pro- 
prietors, the  correction  of  the  mistake  in 
the  partition  deed  being  merely  incidental 
to  the  action  (Goodnow  v.  Parker,  112  Cal. 
437;  44  Pac.  738);  neither  does  it  apply 
in  an  action  for  the  breach  of  an  oral  con- 
tract to  cancel  a  note  and  to  return  the 
collateral  (Serivner  v.  Woodward,  139  Cal. 
314;  73  Pac.  863);  nor  in  an  action  for  the 
reformation  of  a  trust  claim,  where  the 
mistake  was  discovered  within  three  years. 
Ward  V.  Waterman,  85  Cal.  488;  24  Pac. 
930.  The  fourth  subdivision  does  not  ap- 
ply in  an  action  to  enforce  rights  under  a 
decree  of  distribution,  as  distinguished 
from  an  action  to  obtain  relief  on  the 
ground  of  mistake  in  such  decree.  Taylor 
v.  McCowen,  154  Cal.  798;  99  Pac.  351. 
When  the  bar  of  the  statute  has  once  at- 
tached to  the  enforcement  of  a  claim,  inci- 
dental equitable  rights  founded  on  mistake 
are  lost.  Banks  v.  Stockton,  149  Cal.  599; 
87  Pac.  83. 

Discovery  of  fraud  or  mistake.  The  dis- 
covery of  fraud  or  mistake  sets  the  statute 
in  motion,  and  it  does  not  begin  to  run 
until  such  discovery.  People  v.  Perris  Irri- 
gation  Dist.,    142   Cal.    601;    76   Pac.    381; 


Eureka  v.  Gates,  137  Cal.  89;  69  Pac.  850;. 
Lightner  Mining  Co.  v.  Lane,  161  Cal.  689;. 
Ann.  Cas.  1913C,  1093;  120  Pac.  771. 
The  complaint  must  contain  averments^ 
however,  showing  that  the  fraud  was  dis- 
covered within  three  years  before  the  com- 
mencement of  the  action.  Le  Koy  v. 
Mulliken,  59  Cal.  281;  Boyd  v.  Blankman,. 
29  Cal.  19;  87  Am.  Dec.  146;  People  v. 
Noyo  Lumber  Co.,  99  Cal.  456;  34  Pac.  96; 
Castro  V.  Geil,  110  Cal.  292;  52  Am.  St. 
Eep.  84;  42  Pac.  804,  In  an  action  to  re- 
cover for  a  trespass  in  a  mine,  the  plain- 
tiff, to  avoid  the  plea  of  the  statute,  may 
prove  the  fraudulent  concealment  of  the 
trespass  without  pleading  it.  Lightner 
Mining  Co.  v.  Lane,  161  Cal.  689;  Ann. 
Cas.  1913C,  1093;  120  Pac.  771.  An  action 
for  relief  on  the  ground  of  fraud  is  barred 
in  three  years  after  the  discovery  thereof. 
Sublette  v.  Tinney,  9  Cal.  423;  People  v. 
Blankenship,  52  Cal.  619;  Watkins  v. 
Bryant,  91  Cal.  492;  27  Pac.  775.  No  lapse 
of  time  or  delay  in  bringing  suit,  however 
long,  will  defeat  the  remedy,  if  the  injured 
party  was,  during  all  of  the  interval, 
ignorant  of  concealed  fraud;  the  statute 
begins  to  run  upon  the  discovery  of  the 
fraud.  McMurray  v.  Bodwell,  16  Cal.  App. 
574;  117  Pac.  627.  An  action  to  charge 
the  defendant  with  a  constructive  trust 
as  to  certain  real  property,  on  the  ground 
that  the  purchase  price  thereof  was  fraud- 
ulently procured  by  the  defendant  from 
the  plaintiff,  is  based  on  fraud  as  the  sub- 
stantive cause  of  action,  and  is  barred  in 
three  years  after  the  discovery,  by  the 
aggrieved  party,  of  the  facts  constituting 
the  fraud.  Unkel  v.  Robinson,  163  CaL 
648;  126  Pac.  485.  Only  an  unequivocal 
repudiation  of  the  trust  by  a  trustee,  with 
knowledge  of  this  brought  home  to  the 
beneficiaries,  can  set  the  statute  in  motion 
in  favor  of  the  trustee.  Elizalde  v.  Mur- 
phy, 163  Cal.  681;  126  Pac.  978.  The  pol- 
icy of  the  law  is,  that  actions  on  the 
ground  of  fraud  should  be  commenced 
within  three  years;  but,  that  innocent 
parties  may  not  suffer  while  in  ignorance 
of  their  rights,  the  statute  excepts  them 
from  the  limitation  until  the  discovery  of 
the  fraud;  the  last  clause  of  the  section 
must  therefore  be  construed  as  an  excep- 
tion, merely,  to  the  general  provision,  and 
be  pleaded  as  such.  Sublette  v.  Tinnev,  9 
Cal.  423;  Smith  v.  Irving,  3  Cal.  Unrep. 
121;  22  Pac.  170.  It  is  not  enough  to  as- 
sert, merely,  that  the  discovery  was  not 
sooner  made;  it  must  appear  that  it  could 
not  have  been  made  by  the  exercise  of 
reasonable  diligence;  and  all  that  reason- 
able diligence  would  have  disclosed,  the 
plaintiff  is  presumed  to  have  known,  the 
means  of  knowledge  in  such  a  case  being 
the  equivalent  of  the  knowledge  which 
would  have  been  procured.  Truett  v. 
Onderdonk.  120  Cal.  581;  53  Pac.  26;  Rob- 
ertson   V.    Burrell,    110    Cal.   568;    42   Pac. 


191 


WITHIN    THREE   YEARS. 


§338 


1086;  Lady  Washington  Consolidated  Co. 
V.  Wood,  ]13  Cal.  482;  45  Pac.  S09.  "Dis- 
covery" and  "knowledge'  are  not  conver- 
tible terms;  and  it  is  not  sufficient  to 
make  a  mere  averment  of  non-diseovery  or 
ignorance,  but  the  facts  from  which  the 
conclusion  follows  must  be  pleaded.  Lady 
Washington  Consolidated  Co.  v.  Wood,  113 
Cal.  482;  45  Pac.  809;  Hecht  v.  Slaney, 
72  Cal.  363;  14  Pac.  SS;  Moore  v.  Bovd,  74 
Cal.  167;  15  Pac.  670;  Lataillade  v.  Orena, 
91  Cal.  565;  25  Am.  St.  Eep.  219;  27  Pac. 
924;  Archer  v.  Freeman,  124  Cal.  528;  57 
Pac.  474;  Lillis  v.  Silver  Creek  etc.  Water 
Co.,  21  Cal.  App.  234;  131  Pac.  344;  Davis 
v.  Hibernia  Sav.  &  Loan  Soc,  21  Cal.  App. 
444,  132  Pac.  462.  The  party  must  show 
diligence  to  detect  the  fraud;  and  also, 
if  he  made  any  discovery,  when  and  how 
it  was  made,  and  why  it  was  not  made 
sooner.  Lataillade  v.  Oreha,  91  Cal.  565; 
25  Am.  St.  Kep.  219;  27  Pac.  924;  Bills  v. 
Silver  King  Mining  Co.,  106  Cal.  9;  39  Pac. 
43;  Tarke  v.  Bingham,  123  Cal.  163;  55 
Pac.  759;  Hecht  v.  Slaney,  72  Cal.  363;  14 
Pac.  88;  Prewett  v.  Dyer,  107  Cal.  154; 
40  Pac.  105;  Archer  v.  Freeman,  124  Cal. 
528;  57  Pac.  474.  The  means  of  knowl- 
edge are  equivalent  to  knowledge.  Lady 
Washington  Consolidated  Co.  v.  Wood.  113 
Cal.  482;  45  Pac.  809;  Moore  v.  Bovd,  74 
Cal.  167;  15  Pac.  670;  Bills  v.  Silver  King 
Mining  Co.,  106  Cal.  9;  39  Pac.  43;  Eobert- 
son  V.  Burrell,  110  Cal.  568;  42  Pac.  1086; 
Lee  V.  McClelland,  120  Cal.  147;  52  Pac. 
300;  Archer  v.  Freeman.  124  Cal.  528;  57 
Pac.  474;  Simpson  v.  Dalziel,  135  Cal.  599; 
67  Pac.  1080;  McMurray  v.  Bodwell,  16 
Cal.  App.  574;  117  Pac.  627.  The  maxim, 
Vigilantibus  non  dormientibus,  ,iura  sub- 
veniunt,  applies  with  aptness  (Hecht  v. 
Slaney,  72  Cal.  363;  14  Pac.  88);  but 
where,  under  the  circumstances,  a  prudent 
man  would  not  be  put  upon  inquiry,  the 
mere  fact  that  means  of  knowledge  were 
open  to  plaintiff,  of  which  he  did  not  avail 
himself,  does  not  debar  him  from  relief; 
the  circumstances  must  be  such  that  in- 
quiry becomes  a  duty,  and  failure  to  make 
it,  a  negligent  omission.  Tarke  v.  Bingham, 
123  Cal.  163;  55  Pac.  759;  Bank  of  Meudo- 
cia  V.  Baker,  82  Cal.  114;  6  L.  R.  A.  833; 
22  Pac.  1037;  Prouty  v.  Devlin,  118  Cal. 
258;  50  Pac.  380.  When  a  party,  against 
whom  a  cause  of  action  exists  in  favor  of 
another,  by  fraud  or  concealment  prevents 
such  other  party  from  obtaining  knowl- 
edge thereof,  the  statute  commences  to 
run,  only  from  the  time  the  cause  of  ac- 
tion is  discovered,  or  might  have  been 
discovered  by  the  exercise  of  diligence. 
Vance  v.  Supreme  Lodge,  15  Cal.  App.  178; 
114  Pac.  83.  If  an  administrator  seeks  to 
administer  upon  the  estate  of  a  living  per- 
son, and  takes  into  his  possession  money 
belonging  to  such  person,  the  latter's  right 
of  action  to  recover  the  money  is  barred, 
where  more  than  four  years  have  elapsed 


since  the  receipt  of  the  money,  and  more 
than  three  years  have  elapsed  since  he 
had  knowledge  of  the  facts.  Fav  v.  Costa, 
2  Cal.  App.  241;  83  Pac.  275.  There 
must  be  a  discovery  of  fraud,  accomplished 
secretly,  in  order  to  set  the  statute  in 
motion.  Gregory  v.  Spieker,  110  Cal.  150; 
52  Am._  St.  Rep.  70;  42  Pac.  576.  Where- 
an  action  for  relief  on  the  ground  of 
fraud  has  been  commenced  in  time,  and 
the  .iudgment  therein  reversed,  the  party 
seeking  relief  has,  under  §  355,  post,  one 
year  thereafter  in  which  to  commence 
a  new  action.  Kenney  v.  Parks,  137  Cal. 
527;  70  Pac.  556.  An  action  to  recover 
money,  fraudulently  obtained,  may  be 
commenced  within  three  years  from  the 
date  of  the  discovery  of  the  fraud.  City 
Savings  Bank  v.  Enos,  135  Cal.  167;  67 
Pac.  52.  This  section  governs  actions  at 
law%  as  well  as  suits  in  equity,  for  relief 
on  the  ground  of  fraud.  Christensen  v.  Jes- 
sen,  5  Cal.  Unrep.  45;  40  Pac.  747. 

Aggrieved  party.  A  relator  suing,  in 
the  name  of  the  state,  to  cancel  a  patent 
to  state  lands,  is  not  an  aggrieved  party, 
within  the  meaning  of  this  section.  People 
v.  Noyo  Lumber  Co.,  99  Cal.  456;  34  Pac. 
96. 

Limitation  of  actions  for  vacating  pro- 
bate sales.     See  note  post,  §  1573. 

Limitations  against  directors  of  corpora- 
tions.    See  note  post,  §  359. 

Bar  of  action  against  administrator  to 
account.     See  note  post,  §  343. 

Fraud  as  preventing  operation  of  statute  of 
limitations.    See  note  60  Am.  Dec.  500. 

As  to  whether  action  based  on  fraud  is  gov- 
erned by  statute  applicable  to  injury  to  property 
or  injury  to  person.  See  note  28  L.  R.  A.  (N.  S.) 
353. 

When  limitations  commences  to  run  against 
action  to  recover  money  paid  by  mistake.  See 
note   11   L.  R.   A.    (N.   S.)    1191. 

Failure  to  notify  other  party  of  mistake  made 
by  him  as  fraud  which  will  toll  statute  of  limita- 
tions.   See  note  21  L.  R.  A.   (N.  S.)   950. 

Effect  of  public  records  as  notice  or  evidence 
of  notice  which  will  set  statute  of  limitations 
running  against  action  based  on  fraud.  See  note 
22  L.  R.  A.    (N.  S.)   208. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  Liability  created  by  statute.  The  claim  of 
a  district  attorney,  for  his  commission  on  debts 
recovered  for  the  county,  comes  within  subdivis- 
ion 1  of  this  section.  Higby  v.  Calaveras  County, 
18  Cal.  176. 

2.  Rents  and  profits.  In  an  action  to  recover 
lands,  the  plaintiff  can  recover  the  rents  and 
profits  for  three  years  only,  prior  to  the  com- 
mencement of  the  action,  if  this  section  is  pleaded. 
Carpentier  v.  Mitchell.  29  Cal.  330;  see  also  Love 
V.  Shartzer,  81  Cal.  487. 

3.  Fraudulent  concealment.  The  statute  of  limi- 
tations is  not  intended  to  protect  a  person  who, 
by  fraudulent  concealment,  has  delayed  the  asser- 
tion of  a  right.    See  Kane  v.  Cook,  8  Cal.  449. 

4.  Allegation  of  discovery.  The  fact  of  the  dis- 
covery of  the  fraud  must  be  alleged  to  have  been 
made  within  three  years.  Sublette  v.  Tinney,  9 
Cal.  423. 

5.  Constructive,  as  well  as  actual,  fraud.  This 
section  is  applicable  to  constructive  as  well  as 
actual  fraud,  and  an  action  grounded  upon  either 
may  be  commenced  within  three  years  after  dis- 


§339 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


.192 


covery.    Boyd  v.   Blankman,    29   Cal.   20;    87   Am. 
Dec.  146. 

6.  When  concealment  is  not  fraudulent.  Where 
three  persons  entered  into  a  partnership  agree- 
ment, by  the  terms  of  which  the  partnership  was 
to  be  kept  secret,  and  plaintiff,  ignorant  of  the 
existence  of  the  partnership,  sold  goods  to  one  of 
the  firm,  individually,  in  1854,  and  afterwards,  in 
1860,  discovering  that  the  partnership  existed  in 
1854,  and  that  the  goods  went  to  the  uses  of  the 
concern,  brought  suit  against  the  three.  Held: 
that  this  agreement  to  keep  the  partnership  secret, 
and   its   mere    concealment    from   plaintiff,    do   not 


amour.t  to  such  a  fraud  as  to  avoid  the  statute  of 
limitations.  Soule  v.  Atkinson,  18  Cal.  225;  79 
Am.  Dec.  174. 

7.  To  what  frauds  section  does  not  apply. 
Subdivision  4,  it  has  been  held,  does  not  apply 
to  an  action  to  set  aside  and  cancel  a  conveyance, 
upon  the  ground  that  it  is  a  cloud  upon  the  title 
of  the  plaintiff,  even  if  the  court  is  asked  to  set 
aside  the  conveyance  because  it  was  made  to  de- 
fraud a  creditor.  See  Hager  v.  Shindler,  29  Cal. 
60;   Stewart  v.  Thompson,  32  Cal.  260. 

8.  Generally.    See  Currey  r.  Allen,  34  Cal.  254. 


§ 


339.     Within  two  years.     Within  two  years : 

1.  An  action  upon  a  contract,  obligation  or  liability  not  founded  upon  an 
instrument  of  writing,  other  than  that  mentioned  in  subdivision  two  of  sec- 
tion three  hundred  thirty-seven  of  this  code ;  or  an  action  founded  upon  an 
instrument  or  writing  executed  out  of  the  state;  or  an  action  founded  upon 
a  contract,  obligation  or  liability,  evidenced  by  a  certificate,  or  abstract  or 
guarantee  of  title  of  real  property,  or  by  a  policy  of  title  insurance ;  pro- 
vided, that  the  cause  of  action  upon  a  contract,  obligation  or  liability  evi- 
denced by  a  certificate,  or  abstract  or  guarantee  of  title  of  real  property,  or 
policy  of  title  insurance  shall  not  be  deemed  to  have  accrued  until  the  dis- 
covery of  the  loss  or  damage  suffered  by  the  aggrieved  party  thereunder. 

2.  An  action  against  a  sheriff,  coroner,  or  constable  upon  a  liability  in- 
curred b}^  the  doing  of  an  act  in  his  official  capacity  and  in  virtue  of  his 
office,  or  by  the  omission  of  an  official  duty,  including  the  non-payment  of 
money  collected  upon  an  execution.  But  this  subdivision  does  not  apply  to 
an  action  for  an  escape. 

e.  Amended  by  Stats.  1913,  p.  332,  (1)  in 
subd.  1,  (a)  substituting  "instrument  or  writ- 
ing" for  "instrument  of  writing,"  in  the  second 
instance  (probably  a  typographical  error),  (b) 
adding  all  the  matter  in  the  subdivision  from  and 
including  the  words,  "or  an  action  founded  upon 
a  contract,"  to  the  end  thereof. 

Obligations   other  than  upon  contracts. 

"Liability"  has  been  defined  as  "respon- 
sibility"; the  state  of  one  who  is  bound, 
in  law  and  justice,  to  do  something  which 
may  be  enforced  by  action;  and  this  lia- 
bility may  arise  from  contracts  express 
or  implied,  or  in  consequence  of  torts  com- 
mitted. Filler  v.  Southern  Pacific  R.  R. 
Co.,  52  Cal.  42;  Wood  v.  Currey,  57  Cal. 
208.  The  word  "liability"  is  the  most  com- 
prehensive of  the  several  terms  used  in 
this  section,  and  includes  both  of  the 
others,  inasmuch  as  it  is  the  condition  in 
which  an  individual  is  placed  after  a 
breach  of  his  contract,  or  a  violation  of 
any  obligation  resting  upon  him  (Lattin  v. 
Gillette,  95  Cal.  317;  29  Am.  St.  Rep.  115; 
30  Pae.  545);  it  also  includes  responsibility 
for  torts,  and  is  applicable  to  all  actions 
at  law,  not  specially  mentioned  in  other 
portions  of  the  statute.  Lowe  v.  Ozmun, 
137  Cal.  257;  70  Pac.  87;  Filler  v.  South- 
ern Pacific  R.  R.  Co.,  52  Cal.  42;  Raynor 
V.  Mintzer,  72  Cal.  585;  18  Pac.  82;  Mc- 
Cusker  v.  Walker,  77  Cal.  208;  19  Pac. 
382;  Lattin  v.  Gillette,  95  Cal.  317;  29 
Am.  St.  Rep.  115;  30  Pac.  545.  Liability 
for  surgical  and  medical- attention  is  lim- 
ited to  two  years  from  the  date  on  which 


Mutual  account.    See  post,  §  344. 

Actions  for  escape.    See  post,  §  340,  subd.  4. 

Legislation  8  339.  1.  Enacted  March  11,  1873 
(subd.  1  based  on  Stats.  1850,  p.  345,  and  subd. 
2  based  on  Stats.  1859,  p.  306),  and  then  read: 
"Within  two  years:  1.  An  action  upon  a  con- 
tract, obligation,  or  liability,  not  founded  upon 
an  instrument  of  writing;  2.  An  action  against 
a  sheriff,  coroner,  or  constable,  upon  the  lia- 
bility incurred  by  the  doing  of  an  act  in  his  offi- 
cial capacity,  and  in  virtue  of  his  office,  or  by 
the  omission  of  an  official  duty,  including  the 
non-payment  of  money  collected  upon  an  e.xecu- 
tion.  But  this  subdivision  does  not  apply  to  an 
action  for  an  escape;  3.  An  action  upon  a  judg- 
ment, or  upon  a  contract,  obligation,  or  liability 
for  the  payment  of  money  or  damages,  founded 
upon  an  instrument  in  writing,  executed  out  of 
this  state;  4.  An  action  to  recover  daraiges  for 
the  death  of  one  caused  by  the  wrongful  act  of 
another." 

2.  Amended  by  Code  Amdts.  1873-74-,  p. 
291,  (1)  at  end  of  subd.  1,  adding  "or  founded 
upon  an  instrument  of  writing  executed  out  of 
the  state";  (2)  in  subd.  2,  changing  "the"  to 
"a,"  before  "liability";  (3)  striking  out  subd.  3; 
(4)  renumbering  subd.  4  as  subd.  3,  and  adding 
thereto  the  words   "or  neglect,"    after   "act." 

3.  Amended  by  Stats.  1905,  p.  231,  striking 
out  subd.  3. 

4.  Amended  by  Stats.  1906,  p.  5,  after  subd. 
2,  adding  the  paragraph,  "Provided,  that  wher- 
ever the  time  within  which  any  action  mentioned 
in  this  section  must  be  so  commenced  would  in 
any  case  expire  by  the  terms  of  this  section 
after  the  first  day  of  June,  one  thousand  nine 
hundred  and  six,  and  before  the  first  day  of 
January,  one  thousand  nine  hundred  and  seven, 
such  action  may  be  commenced  at  any  time  be- 
fore the  first  day  of  January,  one  thousand  nine 
hundred  and  seven,  with  the  same  force  and 
effect  as  if  commenced  within  two  years  as  in 
this  section  provided." 

5.  Amended  by  Stats.  1907,  p.  599;  this 
amendment  dififering  from  the  present  (1913)  as 
noted  infra. 


193 


WITHIN    TWO    YEARS. 


339 


the  cause  of  action  accrued  (Meeks  v. 
Southern  Pacific  K.  R.  Co.,  61  Cal.  149); 
as  is  also  the  liability  for  an  injury  to  pas- 
sengers, occasioned  by  a  railroad  company; 
and  the  lingering  illness  of  the  injured 
person  does  not  toll  the  statute.  Filler  v. 
Southern  Pacific  R.  R.  Co.,  52  Cal.  42.  An 
action  to  recover  a  proportionate  part  of 
the  expense  of  reclaiming  land,  under  a 
written  agreement,  is  not  subject  to  the 
two-year  limitation  prescribed  in  this  sec- 
tion: the  four-year  limitation  prescribed 
in  §  337,  ante,  applies.  Fabian  v.  Lammers, 
3  Cal.  App.  109;  84  Pac.  432.  This  section 
applies  in  an  action  upon  a  parol  war- 
ranty of  merchantability  of  goods  sold, 
and  the  statute  begins  to  run  on  the  date 
of  the  breach  (Brackett  v.  Martens,  4  Cal. 
App.  249;  87  Pac.  410),  and  it  applies  in 
an  action  against  a  bank,  by  one  of  its 
depositors,  for  damages  resulting  from  the 
refusal  of  the  bank  to  pay  checks  drawn 
upon  it  by  the  plaintiff.  Smiths'  Cash 
Store  V.  First  Nat.  Bank,  149  Cal.  32;  5 
L.  R.  A.  (N.  S.)  870;  84  Pac.  663;  and 
in  an  action  brought  after  a  verbal  state- 
ment of  accounts  (Auzerais  v.  Naglee,  74 
Cal.  60;  15  Pac.  371),  and  in  an  action  in 
favor  of  a  fire-insurance  company,  for  the 
negligent  destruction  of  insured  property 
by  fire.  Phoenix  Ins.  Co.  v.  Pacific  Lumber 
Co.,  1  Cal.  App.  156;  81  Pac.  976.  Under 
a  general  retainer,  contemplating  services 
in  possible  distinct  matters  to  be  attended 
to  separately,  the  attorney's  right  of  ac- 
tion, in  the  absence  of  any  understanding 
as  to  time  or  ainount  of  payment,  accrues 
upon  the  performance  and  completion  of 
the  service  in  each  matter.  Osborn  v. 
Hopkins,  160  Cal.  501;  Ann.  Cas.  1913A, 
413;   117  Pac.  519. 

Contracts  not  founded  upon  written  in- 
strument. The  following  are  actions  on 
contract,  within  the  meaning  of  this  sec- 
tion: An  action  on  an  account  current 
(Adams  v.  Patterson,  35  Cal.  122);  for 
services  as  secretary  of  a  corporation,  by  a 
stockholder  (Fraylor  v.  Sonora  Mining  Co., 
17  Cal.  594);  to  recover  deposit  or  pur- 
chase-m.oney  paid  on  abandonment,  breach, 
or  rescission  of  contract  of  sale  (Chipman 
V.  Morrill,  20  Cal.  130;  Lattin  v.  Gillette, 
95  Cal.  317;  29  Am.  St.  Rep.  115;  30  Pac. 
545;  Todd  v.  Board  of  Education,  122  Cal. 
106;  54  Pac.  527;  Patterson  v.  Doe,  130 
Cal.  333;  62  Pac.  569);  to  recover  the  rea- 
sonable value  of  plans  for  a  building 
(Todd  V.  Board  of  Education,  122  Cal.  106; 
54  Pac.  527);  in  assumpsit,  to  enforce  con- 
tribution among  co-obligors  (Chipman  v. 
Morrill,  20  Cal.  130),  and  by  a  surety,  who 
has  paid  the  debt  of  his  principal.  Bray 
V.  Cohn,  7  Cal.  App.  124;  93  Pac.  893. 
An  action  to  cancel  a  note  cannot  be  main- 
tained, where  the  holder  of  the  note  has 
furnished  goods  or  performed  services,  in 
value  equal  to  the  amount  of  the  note, 
after  the  statutory  period,  during  which 
1  Fair. — 13 


an  action  may  be  brought  for  goods  or 
services.  Gates  v.  Lane,  49  Cal.  266. 
There  is  no  breach  of  a  covenant  for  quiet 
and  peaceable  enjoyment,  until  an  eviction 
by  the  true  owner,  or  an  assertion  by  him 
of  paramount  title,  in  such  manner  that 
the  holder  of  the  land  is  compelled  to  yifid 
possession  or  purchase  the  superior  title. 
McCormick  v.  Marcy,  165  Cal.  386;  132 
Pac.  449. 

Action  upon  instrument  executed  out  of 
state.  A  note  dated  in  this  state,  an  1 
signed  by  two  of  the  makers  here,  and  by 
another  outside  of  the  state,  and  sent  to 
the  payee  here,  is  executed  and  delivered 
out  of  the  state  (Loud  v.  Collins,  12  Cal. 
App.  7S6;  108  Pac.  880);  and  where  a  note 
is  executed  in  another  state,  and  secured 
by  a  mortgage  on  property  here,  it  is  like- 
wise an  obligation  executed  out  of  the 
state.  Lilly-Brackett  Co.  v.  Sonnemann, 
157  Cal.  192;  21  Ann.  Cas.  1279;  106  Pac. 
715.  An  action  to  foreclose  a  mortgage 
given  for  a  pre-existing  debt,  contracted 
orally  within  this  state,  is  barred  in  two 
years  from  the  maturity  of  the  debt.  San- 
ford  v.  Bergin,  156  Cal.  43;  103  Pac.  333. 
The  place  of  delivery  is  generally  the  place 
of  execution:  the  place  of  date,  signature, 
and  writing  does  not  necessarily  fix  the 
place  of  execution.  Loud  v.  Collins,  12 
Cal.  App.  786;  108  Pac.  880. 

Action  against  officer.  An  action  to  re- 
cover fees  illegally  exacted  is  within  this 
section.  Trower  v.  San  Francisco,  157  Cal. 
762;   109  Pac.  617. 

Pleading  statute.  A  plea  of  the  statute 
of  limitations,  alleging  that  a  cause  of 
action  is  barred  by  this  section  is  insuf- 
ficient, unless  it  gives  the  particular  sub- 
division thereof.  Welters  v.  Thomas,  3 
Cal.  Unrep.  843;  32  Pac.  565;  contra,  Mul- 
lenary  v.  Burton,  3  Cal.  App.  263;  84  Pac. 
159.  An  objection,  however,  to  the  manner 
of  pleading  the  statute  in  such  cases  is 
waived,  unless  it  is  urged  in  the  trial  court. 
Churchill  v.  Woodworth,  148  Cal.  669;  113 
Am.  St.  Rep.  324;  84  Pac.  155;  Mullenary 
v.  Burton,  3  Cal.  App.  263;  84  Pac.  159. 
Upon  an  appeal  from  a  judgment,  on  the 
judgment  roll,  without  a  bill  of  exceptions 
presenting  the  evidence,  a  finding  against 
a  plea  that  the  action  is  barred  by  the 
statute  is  conclusive.  Murphy  v.  Stelling, 
8  Cal.  App.  702;  97  Pac.  672.  The  statute 
is  not  let  in  by  amended  pleadings,  where 
the  nature  of  the  action  is  not  changed. 
Atlantic  etc.  Ry.  Co.  v.  Laird,  164  U.  S. 
393;  41  L.  Ed.  485;  17  Sup.  Ct.  Rep.  120. 
A  non-resident  mortgagor  cannot  plead  the 
two-year  limitation  of  this  section,  if  he 
has  not  been  in  the  state,  but  a  successor 
to  the  interest  of  the  mortgagor  stands  in 
a  different  position.  Foster  v.  Butler,  164 
Cal.  623;  130  Pac.  6. 

As  to  when  limitations  commences  to  run 
against  action  to  recover  money  collected  by  agent 
or  attorney.    See  note  17  L.  R.  A.  (N.  8.)  660. 


§340 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


194 


3.  Claims  for  recovery '  of  purchase-money  at 
sale  made  by  city.  Claims  ai^ainst  the  city  of 
San  Francisco  by  the  bidders  at  the  attempted 
sale  in  December,  1853,  for  the  purchase-money 
paid  on  such  sale,  are  within  the  fourth  subdivis- 
ion of  the  seventeenth  section  of  the  limitation 
act,  and  are  barred  by  a  failure  to  sue  within  two 
years  from  the  date  of  the  receipt  of  the  money 
by  the  city.  Pimental  v.  San  Francisco,  21  Cal. 
351. 

4.  Receipt  for  money.  A  mere  naked  receipt 
in  writing,  acknowledging  the  delivery  of  money, 
is  not  a  contract,  and  does  not  import  a  promise, 
obligation,  or  liability,  and  an  action  upon  it  i& 
therefore  barred  by  the  statute  of  limitations  in 
two  years.  But  a  receipt  or  acknowledgment,  in 
writing,  for  money,  which  also  contains  a  clause 
stating  that  the  money  received  is  to  be  applied 
to  the  account  of  the  person  from  whom  received, 
partakes  of  the  double  nature  of  a  receipt  and 
contract,  and  shows  upon  its  face  a  liability  to 
account,  and  an  action  upon  it  is  not  barred  by 
the  statute  of  limitations  until  four  years  have 
expired.  Ashley  v.  Vischer,  24  Cal.  322  ;  85  Am. 
Dec.  65. 

5.  Generally.  Note  to  §  337,  ante,  referring  to 
Chipman  v.  Morrill,  20  Cal.  130. 


Running  of  limitations  against  cause  of  action 
arising  in  foreign  jurisdiction.  See  note  5  Ann. 
Cas.  546. 

When  statute  runs  as  to  liability  of  title 
abstractor.    See  note  12  L.  R.  A.  (N.  S.)  454. 

CODE  COMMISSIONERS'  NOTE.  The  first 
and  second  subdivisions  are  based  upon  acts  of 
1850  and  1859  (Stats.  1850,  p.  343;  Stats.  1859, 
p.  306).  The  third  subdivision  is  a  substitute  for 
the  numerous  provisions  relative  to  the  lime  in 
which  actions  may  be  commenced  upon  liabilities 
incurred  without  the  state,  and  founded  upon 
judgments  or  written  instruments.  The  fourth 
subdivision  is  based  upon  act  of  1862  (Stats. 
1862,  p.  447). 

1.  Assumpsit,  for  money  had  and  received.  See 
Keller  v.  Hicks,  22  Cal.  457;  83  Am.  Dec.  78. 

2.  Account.  Items  of,  barred.  Where  an  ac- 
count is  not  a  mutual  one,  the  statute  bars  each 
item  two  years  after  its  delivery.  Adams  v.  Pat- 
terson, 35"  Cal.  122.  Where  a  party  is  selling 
goods  from  time  to  time  and  charging  them,  and 
the  other  pays  him  money  which  he  credits  on 
the  account  as  a  payment,  this  credit  does  not 
make  the  account  a  mutual  one,  within  the  mean- 
ing of  the  statute  of  limitations.  Id.  See  also 
Fraylor  v.  Sonora  Mining  Co.,  17  Cal.  595;  see 
§  344,  post,  and  note. 

§  340.     Within  one  year.     Within  one  year. 

1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  when  the  action 
is  given  to  an  individual,  or  to  an  individual  and  the  state,  except  when  the 
statute  imposing  it  prescribes  a  different  limitation. 

2.  An  action  upon  a  statute,  or  upon  an  uiuiertaking  in  a  criminal  action, 
for  a  forfeiture  or  penalty  to  the  people  of  this  state. 

3.  An  action  for  libel,  slander,  assault,  battery,  false  imprisonment,  seduc- 
tion or  for  injury  to  or  for  the  death  of  one  caused  by  the  wrongful  act  or 
neglect  of  another  or  by  a  dej)ositor  against  a  bank  for  the  payment  of  a 
forged  or  raised  check. 

4.  An  action  against  a  sheriff  or  other  officer  for  the  escape  of  a  prisoner 
arrested  or  imprisoned  on  civil  process. 

5.  An  action  against  a  municipal  corporation  for  damages  or  injuries  to 
property  caused  by  a  mob  or  riot. 

an  act,  or  for  the  performance  of  an  un- 
lawful act,  and  in  the  former  case  it  stands 
in  lieu  of  the  act  to  be  performed;  a  license 
tax  for  the  sale  of  liquors  is  a  debt,  not  a 
penalty,  and  an  action  to  recover  the  tax 
is  not  barred,  under  this  section  (San  Luis 
Obispo  County  v.  Hendricks,  71  Cal.  242; 
11  Pac.  682);  neither  is  an  action  to  en- 
force a  penalty  for  delinquent  taxes.  Los 
Angeles  County  v.  Ballerino,  99  Cal.  593; 
32  Pac.  581;  34  Pac.  329.  An  action  to 
recover  money  paid  under  an  unlawful  sale 
of  stock,  on  a  margin,  is  not  within  this 
section.  Parker  v.  Otis,  130  Cal.  322;  92 
Am.  St.  Eep.  56;  62  Pac.  571,  927.  The 
first  and  second  subdivisions  of  this  section 
relate  exclusively  to  actions  for  a  penalty 
arising  under  a  statute.  San  Luis  Obispo 
Countv  V.  Hendricks,  71  Cal.  242;  11  Pac. 
682. 

Action  upon  uudertaking  In  criminal  ac- 
tion. The  second  subdivision  of  this  sec- 
tion relates  to  a  cause  arising  in  a  criminal 
action.  San  Luis  Obispo  County  t.  Hen- 
dricks, 71  Cal.  242;  11  Pac.  682. 


Post, 


One  year. 

1.  Against  decedent's  representatives. 
§  353. 

2.  After  reversal  on  appeal.    Post,  §  355. 

3.  Entry  upon  jeal  property.    Ante,  §  320. 
Action  against  city  for  injury  from  riot.    See 

Pol.  Code,  §  4454. 

Legislation  §  340.  1,  Enacted  March  11,  1872 
(first  four  sabdivisions  based  on  Stats.  1850, 
p.  343),  (1)  subd.  3  then  ending  with  the  words, 
after  "battery"  "or  false  imprisonment,"  and  (2) 
subd.  5  reading,  "5.  Upon  a  contract,  obligation, 
or  liability  for  the  payment  of  money  incurred 
out  of  this  state  and  not  founded  upon  a  written 
contract." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
292,  (1)  changing  the  words  after  "battery"  to 
"false  imprisonment  or  seduction,"  and  (2)  chan- 
ging subd.  5  to  read  as  at  present,  except  that  the 
word  "or,"  before  "injuries,"  was  then  printed 
"for." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  89, 
(1)  adding  in  subd.  2  the  words,  after  "statute," 
"or  upon  an  undertaking  in  a  criminal  action," 
and  (2)  changing  the  word  "or"  from  "for," 
before  "injuries,"   in   subd.   5. 

4.  Amended  by  Stats.  1905,  p.  232,  omitting 
the  word  "or"  before  "seduction,"  and  adding 
after  that  word   the  rest   of  the   subdivision. 

Action  upon  a  statute  for  a  penalty  or 
forfeiture.  A.  penaltj-  is  in  the  nature  of 
a  punishment  for  the  non-pci^ormance   of 


195 


WITHIN   SIX   MONTHS. 


§§  341-343 


Action  for  libel.  The  limitation  of  ac- 
tions for  libel  is  one  year.  Graybill  v. 
De  Young,  140  Cal.  323;  73  Pac.  1067. 

Action  for  slander.  The  limitation  of 
actions  for  slander  is  one  year.  iSmulIen  v. 
Phillips,  92  Cal.  408;  28  Pac.  442. 

Action  for  false  imprisonment.  The  limi- 
tation of  actions  for  false  imprisonment  is 
one  year,  and  the  statute  commences  to  run 
against  the  action  on  the  date  of  release. 
Krause  v.  Spiegel,  94  Cal.  370;  28  Am.  St. 
Kep.  137;  15  L.  R.  A.  707;  29  Pac.  707. 

Action  for  seduction.  The  limitation  of 
actions  for  seduction  is  one  year,  and  the 
statute  does  not  commence  to  run,  in  the 
case   of   a   minor,   until   the   seduced    minor 


§ 


attains    majority.     Morrell    v.    Morgan,   65 
Cal.  575;  4  Pac.  580. 

Action  for  injuries  to  person  and  charac- 
ter. The  fact  that  counsel  failed  to  note 
,that  this  section  was  amended  so  as  to  in- 
clude injuries  caused  by  wrongful  act  or 
neglect,  is  not  good  ground  to  allow  an 
amendment  setting  up  the  bar  of  the  stat- 
ute. Kudd  V.  Byrnes,  156  Cal.  636;  20  Ann. 
Cas.  124;  26  L.  R.  A.  (N.  S.)  134;  105  Pac. 
957. 

Commencement  of  running  of  statute  of  limita- 
tions   against   action   for   death   by   wrongful   act. 

Sec    note    17    Ann.    Cas.    519. 

CODE  COMMISSIONERS'  NOTE.  The  first 
four  siibdivisiuns  are  Ijased  upon  Stats.  1850,  p. 
34'J.      The  fifth  subdivision  is  new. 


Civ.    Code, 


341.     Within  six  months.     Within  six  months : 
An  action  against  an  officer,  or  officer  de  facto: 

1.  To  recover  any  goods,  wares,  merchandise,  or  other  property,  seized 
by  any  such  officer  in  his  official  capacity  as  tax  collector,  or  to  recover  the 
price  or  value  of  any  goods,  wares,  merchandise,  or  other  personal  property 
so  seized,  or  for  damages  for  the  seizure,  detention,  sale  of,  or  injury  to  any 
goods,  wares,  merchandise,  or  other  personal  property  seized,  or  for  dam- 
ages done  to  any  person  or  property  in  making  anj^  such  seizure. 

2.  To  recover  stock  sold  for  a  delinquent  assessment,  as  provided  in  sec- 
tion three  hundred  and  forty-seven  of  the  Civil  Code. 

erty.  An  action  to  recover  money  paid  to 
a  tax-collector,  under  protest,  must  be  com- 
menced within  six  months.  Cameron  v. 
Smith,  50  Cal.  303;  Woodham  v.  Cline,  130 
Cal.  497;  62  Pac.  822.  In  an  action  for  the 
wrongful  conversion  of  personal  property, 
the  statute  will  not  run,  after  the  com- 
mencement of  the  action,  to  the  date  of 
filing  an  amended  complaint,  though  it 
superadded  iflimaterial  allegations.  Wood- 
ham  V.  Cline,  130  Cal.  497;  62  Pac.  822. 

Action  to  recover  stock  sold  for  delin- 
quent assessment.  The  second  subdivision 
of  this  section  has  no  application  in  action 
relating  to  stock  sold  under  a  void  assess- 
ment (Herbert  Kraft  Co.  Bank  v.  Bank  of 
Orland,  133  Cal.  64;  65  Pac.  143),  and 
applies  only  where  there  has  been  some 
irregularity  in  the  assessment,  or  defect  in 
the  sale  or  notice.  Cheney  v.  Canfield,  158 
Cal.  342;  111  Pac.  92. 

Stats.  1859^ 


Six  months. 

1.  Stock    sold    for    assessment. 
§  347. 

2.  Action  for  taxes  paid  under  protest.     See 
Pol.  Code,  §  3S19. 

3.  Against    county.     Post,  §342;    Pol.    Code, 
§  4075. 

4.  By  decedent's  representatives.    Po.st,  §  353. 

5.  Suits  for  penalties  for  violating  highway 
laws.    See  Pol.   Code,  §  2935. 
Legislation  §  341.     1.   Enacted  March  11,  1873 

(based  on  Stats.  1859,  p.  306),  and  then  read: 
"Within  six  months:  An  action  against  an  officer, 
or  officer  de  facto,  engaged  in  the  collection  of 
taxes;  1.  For  money  paid  to  any  such  officer 
under  protest,  or  seized  by  such  officer  in  his 
official  capacity  as  a  collector  of  taxes,  and 
which,  it  is  claimed,  ought  to  be  refunded;  2. 
To  recover  any  goods,  wares,  merchandise,  or 
other  property  seized  by  any  such  officer  in  his 
official  capacity  as  tax-collector,  or  to  recover  the 
price  or  value  of  any  goods,  wares,  merchandise, 
or  other  personal  property  so  seized,  or  for  dam- 
ages for  the  seizure,  detention,  sale  of  or  injury 
to  any  goods,  wares,  merchandise,  or  other  per- 
sonal property  seized,  or  for  damages  done  to 
any  person  or  property  in  making  any  such 
seizure." 

3.   Amended    by     Code    Amdts.     1873-74,    p. 
292. 

Action  against  an  officer  to  recover  prop- 


CODE  COMMISSIONERS'  NOTE 
p.  306.      See  §  345,  post. 


§  342.  Same.  Actions  on  claims  against  a  county,  which  have  been  re- 
jected by  the  board  of  supervisors,  must  be  commenced  within  six  months- 
after  the  first  rejection  thereof  by  such  board. 


Action. 

1.  ror  riot.    Ante,  §  340,  subd.  5. 

2.  Against    county    on    rejected    claim. 


See 


Pol.    Code,    §  4078. 
Legislation  §  342. 


Enacted    March    11,    1873. 


§  343.  Actions  for  relief  not  hereinbefore  provided  for.  An  action  for 
relief  not  hereinbefore  provided  for  must  be  commenced  within  four  year* 
after  the  cause  of  actio,  si    U  have  accrued. 


§343 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


196 


Bank  deposits,  no  limitation.    Ante,  §  348. 
Legislation  §  3i3.      Enacted   March   11,    1873; 
based   on   Stats.   1850,   p.   34^. 

Application  of  section.  This  section 
governs  the  limitations  of  actions  for  part-, 
nersliip  accounts  (West  v.  Eussell,  74  Cal. 
544;  16  Pac.  392;  Rowe  v.  Simmons,  113 
Cal.  688;  45  Pac.  983);  and  actions  for  an 
accounting  generally  (Allsopp  v.  Joshua 
Hendy  Machine  Works,  5  Cal.  App.  228; 
90  Pac.  39);  and  all  suits  in  equity,  not 
strictly  of  concurrent  cognizance  at  law 
and  in  equity  (Piller  v.  Southern  Pacific 
R.  R.  Co.,  52'Cal.  42;  Dore  v.  Thornburgh, 
90  Cal.  64;  25  Am.  St.  Rep.  100;  27  Pac. 
30);  and  proceedings  for  the  sale  of  real 
property  to  pay  the  debts  of  a  decedent's 
estate  (Estate  of  Crosby,  55  Cal.  574);  but 
where  the  order  of  sale  is  made  more  than 
four  years  before  that  event,  the  sale  may 
be  based  upon  such  order,  and  regarded  as 
a  continuation  of  such  proceeding  (Estate 
of  Montgomery,  60  Cal.  645);  and  the  re- 
vival of  a  judgment  in  favor  of  the  pur- 
chaser at  an  execution  sale,  though  void 
for  irregularity,  is  governed  by  this  section 
(Merguire  v.  O'Donnell,  139  Cal.  6;  96  Am. 
St.  Rep.  91;  72  Pac.  337);  as  is  also  an 
action  upon  a  foreign  judgment  (Patten  v. 
Ray,  4  Cal.  287;  Dore  v.  Thornburgh,  90 
Cal.  64;  25  Am.  St.  Rep.  100;  27  Pac.  30), 
and  mandamus  to  compel  restoration  to 
office.  Farrell  v.  Board  of  Police  Commis- 
sioners, 1  Cal.  App.  5;  81  Pac.  674.  An 
action  to  set  aside  a  deed,  on  the  ground 
of  undue  influence,  comes  within  this  sec- 
tion (Trubody  v.  Trubody,  137  Cal.  172; 
69  Pac.  968),  as  does  also  an  action  to 
enforce  a  vendor's  lien  (California  Savings 
Bank  v.  Parrish,  116  Cal.  254;  48  Pac.  73), 
and  a  refusal  to  convey  according  to  the 
terms  of  the  trust  (Hearst  v.  Pujol,  44  Cal. 
230);  and  this  section  applies  to  suits  for 
equitable  relief  (Teall  v.  Schroder,  158  U. 
S.  172;  39  L.  Ed.  938;  15  Sup.  Ct.  Rep. 
768);  but  it  has  no  application  to  the  pro- 
cedure contemplated  by  §  685,  post  (Doehla 
V.  Phillips,  151  Cal.  488;  91  Pac.  330);  nor 
does  it  negative  the  limitations  expressly 
applicable  to  actions  to  annul  a  void  mar- 
riage. Stierlen  v.  Stierien,  6  Cal.  App.  420; 
92  Pac.  329.  Nor  does  it  govern  an  action 
to  redeem  from  a  deed  absolute  in  form, 
given  as  a  mortgage.  Warder  v.  Enslen, 
73  Cal.  291;  14  Pac.  874.  An  action  to 
recover  a  personal  judgment  for  delinquent 
taxes  is  distinguished  from  a  tax  lien,  al- 
though the  bar  is  not  removed.  San  Fran- 
cisco v.  Luning,  73  Cal.  610;  15  Pac.  311. 
When  a  secured  debt  is  barred  by  the  stat- 
ute, the  right  of  redemption  is  also  barred 
(Green  v.  Thornton,  8  Cal.  App.  160,  96 
Pac.  382);  but  an  action  upon  the  assump- 
tion of  a  mortgage  and  an  agreement  to 
pay  is  not  barred  (Roberts  v.  Fitzallen, 
120  Cal.  482;  52  Pac.  818),  although  an 
oral  contract  to  convey  land  is  (Dodge  v. 
Clark,  17  Cal.  586;  Lowell  v.  Kier,  50  Cal. 


646;  Henderson  v.  Hicks,  58  Cal.  364),  es- 
pecially in  those  cases  where  the  vendee 
has  been  put  in  possession  and  holds  under 
a  contract  of  sale  and  purchase.  Calan- 
chini  V.  Braustetter,  84  Cal.  249;  24  Pac. 
149.  Mandamus  to  compel  the  levy  of  a 
tax  must-  be  brought  within  four  years 
(Barnes  v.  Glide,  117  Cal.  1;  59  Am.  St. 
Rep.  153;  48  Pac.  804);  but  a  lien  tax  is 
not  extinguished  by  the  statute  of  limita- 
tions; it  exists  until  there  is  a  payment, 
or  a  sale  of  the  property  for  the  taxes. 
Lewis  V.  Rothchild,  92  Cal.  625;  28  Pac. 
805.  The  duty  of  an  administrator  to  ac- 
count is  a  continuing  duty,  and  does  not 
become  barred.  Elizalde  v.  Murphy,  163 
Cal.  681;  126  Pac.  978.  This  section,  it 
any,  applies  to  a  proceeding  by  a  ward, 
after  attaining  majority,  to  compel  a  settle- 
ment of  accounts  by  the  guardian.  Cook 
V.  Ceas,  147  Cal.  614,  619;  82  Pac.  370.  It 
is  a  residuary  clause,  which  applies  only 
when  no  other  section  is  applicable.  Unkel 
V.    Robinson,    163    Cal.    648;    126   Pac.   485. 

Actions  for  relief  not  otherwise  provided 
for.  The  word  "hereinbefore"  has  never 
been  held  to  limit  the  operation  of  the  stat- 
ute to  actions  at  law  (Lux  v.  Haggin,  69 
Cal.  255;  4  Pac.  919;  10  Pac.  674),  but  it  is 
intended  to  include  all  actions  at  law  and 
suits  in  equity.  Dore  v.  Thornburgh,  90 
Cal.  64;  25  Am.  St.  Rep.  100;  27  Pac. 
30.  In  an  action  upon  an  independent 
covenant  to  pay  the  purchase-money,  the 
statute  commences  to  run  on  the  date  the 
payment  was  to  have  been  made,  and  is 
barred  in  four  years,  irrespective  of  the 
time  of  execution,  or  tender,  of  convey- 
ance: a  covenant  to  pay  is  independent, 
where  there  is  a  day  fixed  for  the  payment 
and  none  for  the  conveyance,  or  where 
the  day  of  payment  is  to  happen  or  may 
happen  before  the  date  on  which  the  con- 
veyance IS  fixed  to  be  made.  Donovan  v. 
Judson,  81  Cal.  334;  6  L.  R.  A.  591;  22  Pac. 
082.  In  a  quo  warranto  proceeding  to  de- 
termine the  legal  existence  of  a  corpora- 
tion, there  is  no  statute  of  limitations,  be- 
cause, the  usurpation  being  without  right, 
and  continuous,  a  new  cause  of  action  arises 
each  day.  People  v.  Stanford,  77  Cal.  360; 
2  L.  R.  A.  92;  18  Pac.  85;  19  Pac.  693. 
An  action  for  specific  performance  of  a 
contract  to  pay  is  governed  by  this  section, 
where  there  is  no  trust.  Henderson  v. 
Hicks.  58  Cal.  364;  Luco  v,  De  Toro,  91 
Cal.  405;  27  Pac.  1082. 

Actions  involving  trusts.  Where  there 
is  a  trust  created  in  land,  the  statute  com- 
mences to  run  only  on  the  date  on  or  from 
which  the  trust  is  openly  disavowed,  and 
that  fact  is  clearly  and  unequivocally  made 
known  to  the  cestui  que  trust.  Luco  v. 
De  Toro,  91  Cal.  405;  27  Pac.  1082.  The 
repudiation  of  the  trust  must  be  brought 
home  to  the  knowledge  of  the  cestui  que 
trust.  Hovey  v.  Bradbury,  112  Cal.  620; 
44  Pac.  1077;  Norton  v.  Bassett,  154  Cal. 


197 


WHERE  CAUSE  OF  ACTION  ACCRUES  ON  MUTUAL  ACCOUNT. 


§344 


411;  129  Am.  St.  Rep.  162;  97  Pac.  894. 
Where  there  is  a  written  contract,  show- 
ing a  trust  relationship  between  parties,  an 
action  for  an  accounting  based  thereon, 
commenced  within  four  years  from  the 
date  of  the  contract,  is  not  barred  by  the 
statute.  McArthur  v.  Blaisdell,  159  Cal. 
604;  115  Pac.  52.  The  statute  does  not 
commence  to  run  in  favor  of  a  trustee  hold- 
ing the  legal  title  to  land  under  a  positive 
voluntary  trust  resting  in  parol,  until  a 
repudiation  of  the  trust  by  the  trustee, 
with  knowledge  of  the  repudiation  brought 
home  to  the  beneficiaries.  Tavlor  v.  Mor- 
ris, 163  Cal.  717;  127  Pac.  66;"  MacMullan 
v.  Kelly,  19  Cal.  App.  700;  127  Pac.  819. 
The  fund  arising  in  a  county  treasury, 
from  an  accumulation  of  excessive  personal 
property  taxes,  constitutes  an  express  con- 
tinuing trust,  against  which  the  statute 
does  not  begin  to  run  until  such  trust,  with 
the  knowledge  or  on  the  demand  of  the 
taxpayer,  has  been  repudiated.  MaeMullan 
V.  Kelly,  19  Cal.  App.  700;  127  Pac.  819.  A 
resulting  trust  differs  from  a  constructive 
trust,  in  that  the  latter  is  forced  upon  the 
conscience  of  the  trustee  against  his  will, 
and  generally  to  prevent  fraud;  while  an 
express  trust  differs  from  a  resulting  trust, 
only  in  the  manner  in  which  it  is  proven; 
but,  when  proven,  the  resulting  trust  is 
enforced  in  the  same  manner  as  an  express 
trust.  Scadden  Flat  Gold  Mining  Co.  v, 
Scadden,  121  Cal.  33;  53  Pac.  440;  Love  v. 
Watkins,  40  Cal.  547;  6  Am.  Eep.  624.  An 
action  to  enforce  a  constructive  trust  is 
barred  in  four  years  (Hecht  v.  Slaney,  72 
Cal.  363;  14  Pac.  88);  but  a  cause  of  action 
on  an  express  trust  does  not  accrue  until 
there  has  been  a  repudiation  of  the  same. 
Broder  v.  Conklin,  77  Cal.  330;  19  Pac.  513; 
Sandf  oss  v.  Jones,  35  Cal.  481.  The  limita- 
tion of  an  action  on  an  implied  trust  is 
governed  by  this  section  (Piller  v.  Southern 


Pacific  R.  R.  Co.,  52  Cal.  42;  Hecht  v. 
Slaney,  72  Cal.  363;  14  Pac.  88;  Chapman 
v.  Bank  of  California,  97  Cal.  155;  31  Pac. 
896;  Nougues  v.  Newlands,  118  Cal.  102; 
50  Pac.  386;  Kenney  v.  Parks,  137  Cal.  527; 
70  Pac.  556),  and  a  denial  or  a  repudiation 
of  such  a  trust  is  not  necessary  to  set  the 
statute  running.  Hecht  v.  Slaney,  72  Cal. 
363;  14  Pac.  88;  Currcy  v.  Allen,  34  Cal. 
254.  An  action  to  establish  involuntary 
and  resulting  trusts  in  certain  parcels  of 
land  is  not  subject  to  the  four-year  statute 
provided  in  this  section  (Bradley  Bros.  v. 
Bradley,  20  Cal.  App.  1;  127  Pac.  1044); 
nor  is  an  action  based  on  fraud  as  the  sub- 
stantive cause  of  action.  Unkel  v.  Robin- 
son, 163  Cal.  648;  126  Pac.  485.  A  grantee 
who  takes  a  deed  from  a  trustee,  with  full 
knowledge  that  it  is  executed  in  violation 
of  the  trust,  becomes  an  involuntary  trus- 
tee of  the  trust,  east  upon  him  by  opera- 
tion of  law.  Nougues  v.  Newlands,  118 
Cal.  102;  50  Pac.  386;  Lathrop  v.  Bampton, 
31  Cal.  17;  89  Am.  Dec.  141.  The  solution 
of  questions  arising  under  a  plea  of  the 
«tatute,  or  of  laches,  in  eases  where  a  long 
period  of  time  has  intervened  between  the 
origin  of  the  cause  and  the  commencement 
of  an  action  thereon,  depends  upon  the  cir- 
cumstances peculiar  to  each  particular  case. 
Miller  v.  Ash,  156  Cal.  544;  105  Pac.  600. 

Actions  that  must  be  brought  within  four 
years.    See  note  ante,  §  337. 

Limitation  of  actions  for  vacating  pro- 
hate  sales.    See  note  post,  §  1573. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850. 
p.  843.  In  a  suit  to  compel  the  execution  of  a 
deed,  plaintiff  alleged  the  property  was  purchased 
by  him  of  C,  and  by  an  agreement  with  defend- 
ant was  conveyed  directly  to  him  (defendant)  as 
security  for  a  debt,  he  to  make  a  deed  to  the 
plaintiff  upon  payment  of  the  debt.  The  debt  was 
paid,  and  file  deed  demanded,  but  refused.  (See 
facts  of  case,  as  to  the  time  the  statute  was  in 
motion.)  It  was  held  that  this  character  of  case 
did  not  fall  under  subdivision  1  of  §  399,  ante, 
but  fell  within  the  terms  of  this  section.  Dodge 
V.  Clark,  17  Cal.  586. 


§  344.  Where  cause  of  action  accrues  on  mutual  account.  In  an  action 
brought  to  recover  a  balance  due  upon  a  mutual,  open,  and  current  account, 
where  there  have  been  reciprocal  demands  between  the  parties,  the  cause 
of  action  is  deemed  to  have  accrued  from  the  time  of  the  last  item  proved  in 
the  account  on  either  side. 

of  the  account,  which  constitutes  a  debt  or 
claim,  for  which  the  party  in  whose  favor 
it  exists  has  the  right  of  recovery.  Millet 
V.  Bradbury,  109  Cal.  170;  41  Pac.  865. 

Mutual  open  and  current  accounts.  Mu- 
tual accounts  are  made  up  of  matters  of 
set-off,  where  there  is  an  existing  debt  on 
the  one  side,  which  constitutes  a  credit 
on  the  other,  or  where  there  is  an  express 
or  implied  understanding  that  mutual  debts 
shall  be  satisfied  or  set  off  pro  tanto  be- 
tween the  parties.  Norton  v.  Lareo,  30 
Cal.  126;  89  Am.  Dec.  70;  Millet  v.  Brad- 
bury, 109  Cal.  170;  41  Pac.  865.  To  con- 
stitute a  mutual  open  and  current  account, 
there  must  be  reciprocal  demands  between 


Legislation  §  344.  Enacted  March  11,  1873; 
based  on  Stats.   1850,   p.   343. 

Account  stated,  defined.  An  account 
stated  is  a  document,  a  writing,  which 
exhibits  the  state  of  accounts  between  the 
parties,  and  the  balance  owing  from  one 
to  the  other.  Coffee  v.  Williams,  103  Cal. 
550;  37  Pac.  504.  The  term,  "a  balance 
due  upon  an  account,"  implies  an  account 
between  the  two  parties,  in  which  the 
amount  of  the  items  upon  one  side  of  the 
account  is  deducted  from  the  other  side, 
and  the  balance  thus  ascertained;  and  the 
term  "account"  involves  the  idea  of  debt 
and  credit,  and  the  balance  of  an  account 
is  the  result  of  the  debit  and  credit  sides 


§341 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


198 


the  parties.  Fraylor  v.  Sonora  Mining  Co., 
17  Cal.  594;  I'lynn  v.  Seale,  2  Cal.  App. 
665;  84  Pac.  263.  The  term  "reciprocal 
demand,"  in  this  section,  is  only  a  synonj'm 
or  the  equivalent  of  the  term  "mutual  ac- 
counts." Millet  V.  Bradbury,  109  Cal.  170; 
41  Pac.  865.  The  right  to  demand  an 
article  of  property  that  has  been  deposited 
with  another,  and  the  right  to  demand  a 
debt  due  from  the  depositor,  are  not  re- 
ciprocal; if  the  depositor  has  the  right  to 
demand  the  property  itself,  the  other  is 
merely  a  bailee  or  depositary,  and  the 
foundation  of  an  account  is  wanting.  Mil- 
let V.  Bradbury,  109  Cal.  170;  41  Pac.  865, 
General  deposits  made  by  a  corporation  in 
a  bank,  to  which  it  is  indebted  for  over- 
drafts, of  sums  not  greater  than  the  bal- 
ance of  the  indebtedness,  are  presumed  to 
be  made  as  payments  thereupon,  and  do 
not  make  the  account  a  mutual  open  and 
current  one.  Santa  Eosa  Nat.  Bank  v.  Bar- 
nett,  125  Cal.  407;  58  Pac.  85.  A  payment, 
whether  of  money,  or  of  personal  property 
of  a  stipulated  value,  made  on  an  account, 
and  intended  as  a  payment,  and  not  as  a 
set-off  pro  tanto,  does  not  make  the  account 
mutual  (Kocca  v.  Klein,  74  Cal.  526;  16 
Pac.  323);  nor  is  the  account  mutual,  where 
payments  were  made  on  an  open  account 
for  goods  sold  and  delivered,  due  for  more 
than  a  year;  nor  is  the  case  altered  by  the 
fact  that  the  party  once  deposited  a  lump 
of  gold  amalgam  to  be  sold,  the  proceeds 
to  be  applied  to  payment  of  the  account 
(Weatherwax  v.  Cosumnes  Valley  Mill  Co., 
17  Cal.  344);  nor  is  the  account  mutual, 
unless  the  parties  have  dealt  with  each 
other  in  the  same  relation,  and  the  items 
upon  the  different  sides  of  the  account  are 
capable  of  being  set  off  against  each  other 
(Millet  V.  Bradbury,  109  Cal.  170;  41  Pac. 
865);  nor  is  there  a  mutual  account  where 
one  party  is  selling  the  other  goods  from 
time  to  time  and  charging  the  same,  and 
the  other  gives  him  money  which  he  credits 
on  the  account  as  a  payment  (Adams  v, 
Patterson,  35  Cal.  122);  nor  is  there  a 
mutual  account,  where  the  defendant's  tes- 
tator was  indebted  to  the  plaintiff  for  ser- 
vices, and  the  testator  had  intrusted  to 
the  plaintiff  moneys  to  be  expended  for 
the  use  and  benefit  of  the  testator,  and  at 
his  direction,  and  the  testator  died  during 
the  continuance  of  the  trust  (Millet  v. 
Bradbury,  109  Cal.  170;  41  Pac.  865);  nor 
is  the  account  mutual,  where  the  items  of 
the  account  are  all  on  one  side  (Fraylor 
V.  Sonora  Mining  Co.,  17  Cal.  594)  ;  and 
it  is  immaterial  whether  the  account  of 
these  transactions  is  kept  by  one  or  by 
both  of  the  parties,  and  the  form  in  which 
the  account  is  kept  is  also  immaterial. 
Millet  v.  Bra<lburv,  109  Cal.  170;  41  Pac. 
865. 

Nature  and  theory  of  an  accoimt  stated. 
The  theory  upon  which  a  mutual  account 
is   taken   out   of   the   statute   is,   that   the 


obligations  on  the  one  side  are,  in  law, 
applied  as  payments,  or  offsets,  on  the 
other;  but  if  the  transaction  between  the 
parties  does  not  create  a  debt,  or  claim, 
which  may  be  so  applied,  such  transaction 
cannot  be  regarded  as  a  payment,  or  off- 
set, on  the  debt,  nor  be  the  foundation  of 
a  mutual  account  or  reciprocal  demand. 
Millet  v.  Bradbury,  109  Cal.  170;  41  Pac. 
865.  An  account  stated  alters  the  nature 
of  the  original  indebtedness,  and  consti- 
tutes a  new  promise  or  undertaking.  Carey 
V.  Philadelphia  etc.  Petroleum  Co.,  33  Cal. 
694;  Hendy  v.  March,  75  Cal.  566;  17  Pac. 
702;  and  see  Griswold  v.  Pieratt,  110  Cal. 
259;  42  Pac.  820.  The  word  "settle"  has  a 
double  meaning,  and  is  used  alike  to  de- 
note an  adjustment  of  a  demand  and  a 
payment;  and  evidence  is  admissible  to 
explain  in  which  sense  the  word  is  used, 
where  there  is  any  ambiguity.  Auzerais  v. 
Naglee,  74  Cal.  60;  15  Pac.  371.  In  an 
action  on  an  account  stated,  it  is  not  neces- 
sary to  prove  the  account,  or  any  of  its 
items:  the  proof,  in  such  a  case,  is  directed 
to  the  fact  that  the  parties  have  accounted 
together  and  have  agreed  upon  the  balance 
due  (insimul  computassent).  Auzerais  v. 
Naglee,  74  Cal.  60;  15  Pac.  371.  Where, 
after  an  account  stated,  a  sum  is  due  to 
either  of  the  parties,  which  is  not  paid,  but 
is  afterward  thrown  into  a  new  account, 
it  is  again  outside  of  the  statute.  Auzerais 
v.  Naglee,  74  Cal.  60;  15  Pac.  371.  Where 
there  are  demands  on  each  side,  the  strik- 
ing of  a  balance  converts  the  set-off  into  a 
payment,  and  from  that  time  the  statute 
of  limitations  commences  running.  Norton 
V.  Larco,  30  Cal.  126;  89  Am.  Dec.  70.  The 
statute  begins  to  run  when  the  adjustment 
is  made.  Auzerais  v.  Naglee,  74  Cal.  60; 
15  Pac.  371.  Where  the  complaint  states 
a  cause  of  action  for  goods  sold  and  de- 
livered, and  a  bill  of  items  is  annexed  to 
the  same  as  an  exhibit,  with  the  date  of 
each  item,  an  answer  referring  to  the  ex- 
hibit, and  averring  that  only  the  last  item 
is  within  two  years  previous  to  the  com- 
mencement of  the  action,  and  that,  except 
as  to  the  last  item,  "no  action  has  accrued 
to  said  plaintiff  by  reason  of  the  matter 
mentioned  and  set  forth  in  said  complaint, 
at  any  time  within  two  years  next  preced- 
ing the  commencement  of  this  action,"  is 
a  good  plea  of  the  statute  to  all  the  items, 
except  the  last.  Adams  v.  Patterson,  35 
Cal.  122.  The  statute,  as  to  an  accounting, 
begins  to  run  from  the  last  item  charged 
on  either  side.  Moss  v.  Odell,  141  Cal.  335; 
74  Pac.  999.  W^here  the  account  is  not 
mutual,  the  statute  bars  each  item  two 
years  after  its  delivery.  Adams  v.  Patter- 
son, 35  Cal.  122.  The  balance  of  a  mutual 
open  and  current  account  is  assignable. 
Culver  V.  Newhart,  18  Cal.  App.  614;  123 
Pac.  975. 

Account  stated  may  be  oral  or  implied. 
Where    an    open    account    is    orally    stated 


199 


ACTIONS  BY  PEOPLE  SUBJECT   TO  LIMITATIONS. 


§345 


before  the  items  comprising  it  are  barred, 
the  statute  begins  to  run  against  the  stated 
account  from  the  date  of  tlie  statement, 
and  an  action  may  be  brought  thereon  at 
any  time  within  two  years  after  the  state- 
ment (Kahn  v.  Edwards,  75  Cal.  192;  7 
Am.  St.  Rep.  141;  16  Pac.  779;  Baird  v. 
Crank,  98  Cal.  293;  33  Pac.  63;  and  see 
Griswold  v.  Pieratt,  110  Cal.  259;  42  Pac. 
820);  but  an  open  account  already  barred 
cannot  be  relieved  from  the  bar  of  the 
statute  by  an  oral  settlement  of  such  ac- 
count. Auzerais  v.  Naglee,  74  Cal.  60;  15 
Pac.  371.  The  agreement  between  the  par- 
ties to.  an  account  stated,  that  all  the  items 
therein  are  true,  need  not  be  express,  but 
may  be  implied  from  circumstances,  such 
as  the  sending  of  the  account  from  one  to 
the  other,  who  makes  no  objection  thereto 
within  a  reasonable  time.  Mayberry  v. 
Cook,  121  Cal.  588;  54  Pac.  95;  and  see 
Terry  v.  Sickles,  13  Cal.  427;  Auzerais  v. 
Naglee,  74  Cal.  60;  15  Pac.  371;  Hendy  v. 
March,  75  Cal.  566;  17  Pac.  702;  Coffee  v. 
Williams,  103  Cal.  550;  37  Pac.  504.  Where 
an  account  stated  is  assented  to,  either  ex- 
pressly or  impliedly,  it  becomes  a  new  con- 
tract, and  an  action  upon  it  is  not  founded 
upon  the  original  items,  but  upon  the  bal- 
ance agreed  to  by  the  parties.  Coffee  v. 
Williams,  103  Cal.  550;  37  Pac.  504;  Au- 
zerais V.  Naglee,  74  Cal.  60;  15  Pac.  371. 

Correcting  error  in  account  stated.  In 
an  action  on  a  stated  account,  it  is  not 
necessary  to  prove  the  items  of  the  origi- 
nal account,  nor  can  they  be  inquired  into 
or  surcharged,  except  for  some  fraud,  error, 
or  mistake,  which  must  be  set  forth  in  the 
pleadings.  Auzerais  v.  Naglee,  74  Cal.  60; 
15  Pac.  371;  Coffee  v.  Williams,  103  Cal. 
550;  37  Pac.  504;  Mayberry  v.  Cook,  121 
Cal.  588;  54  Pac.  95.  An  account  stated 
may  be  attacked  for  mistake,  but,  as  in 
other  contracts,  the  mistake  must  be  put 
in  issue  by  the  pleadings.  Hendy  v.  March, 
75  Cal.  566;  17  Pac.  702.  Where  the  ac- 
count sued  upon  is  a  defective  memoran- 
dum of  account,  without  dates,  or  any 
balance  struck  or  stated,  and  the  answer 
denies  that  any  account  was  stated,  great 
latitude  is  allowed  in  introducing  evidence 

§345.     Actions  by  the  people  subject  to  the  limitations  of  this  chapter. 

The  limitations  prescribed  in  this  chapter  apply  to  actions  brought  in  the 
name  of  the  state  or  for  the  benefit  of  the  state,  in  the  same  manner  as  to 
actions  by  private  parties,  except  that  actions  for  the  recovery  of  money 
due  on  account  of  the  presence  of  patients  at  the  state  hospitals  may  be 
commenced  at  any  time  within  three  years  after  the  accrual  of  the  same. 

the  state,  according  to  the  maxim.  Nullum 
tempus  occurrit  regi,  has  no  force,  in  the 
face  of  this  section.  San  Francisco  v.  Lun- 
ing,  73  Cal.  610;  15  Pac.  311.  The  statute 
of  limitations  for  breach  of  an  official  bond 
does  not  commence  running  until  the  ex- 
piration of  the  official  term,  and  the  period 
thereafter  required  to  effect  a  bar  is  four 
years.    People  v.  Van  Ness,  79  Cal.  84;  12 


to  disprove  it.  Coffee  v.  Williams,  103  Cal. 
550;  37  Pac.  504.  An  action  to  recover 
money  paid  upon  a  mistake  of  fact,  where 
the  payment  was  upon  a  mutual  open  and 
current  account,  with  reciprocal  demands 
between  the  parties  up  to  within  two  years 
of  the  time  when  the  action  was  brought, 
and  where  the  mistake  upon  which  the  ac- 
tion was  predicated  was  discovered  within 
one  year  next  before  the  action  was 
brought,  is  not  barred  by  the  statute.  01m- 
stead  v.  Dauphiny,  104  Cal.  635;  38  Pac. 
505. 

What  are  mutual  accounts  and  the  applicability 
of  statutes  of  limitations  thereto.  Sue  note  89 
Am.  Dec.  75. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  Mutual  accounts.  Where  there  have  been 
reciprocal  demands  between  the  parties,  upon  a 
mutual  open  and  current  account,  the  statute  of 
limitations  commences  running  at  the  time  of  the 
last  item  of  the  account  proved  on  either  side. 
Norton  v.  Larco,  30  Cal.  126;  89  Am.  Dec.  70. 

2.  Mutual  accounts.  Mutual  accounts  are  made 
up  of  matters  of  setoff,  where  there  is  an  exist- 
ing debt  on  the  one  side  which  constitutes  a 
credit  on  the  other,  or  where  there  is  an  express 
or  implied  understanding  that  mutual  debts  shall 
be  set  off  pro  tanto  between  the  parties.      Id. 

3.  When  property  received  and  credited  makes 
account  mutual.  The  defendants,  being  indebted 
to  the  plaintiffs  on  account,  delivered  to  them  an 
article  of  personal  property,  for  which  the  latter 
gave  the  former  credit  at  a  specified  valuation. 
Held:  that  thereby  the  account  between  the  par- 
ties became  a  mutual  open  and  current  account, 
consisting  of  reciprocal  demands  between  them. 
Id. 

4.  Striking  of  a  balance  on  accounts.  Where 
there  are  demands  on  each  side,  the  striking  of 
a  balance  converts  the  setoff  into  a  payment,  and 
from  that  time  the  statute  of  limitations  com- 
mences running.      Id. 

5.  Mutual  accounts.  Until  a  balance  is  struck, 
a  mutual  account  is  open  and  current.      Id. 

6.  A  payment  does  not  make  an  account  mu- 
tual. A  payment,  whether  it  be  made  in  money 
or  of  an  article  of  personal  property  of  a  stipu- 
lated value,  made  on  an  account  and  intended  as 
a  payment,  and  not  as  a  set-off  pro  tanto,  does 
not  make  an  account  mutual.      Id. 

7.  Payment  on  an  account.  Where  money  is 
delivered  by  one  party  to  the  other,  and  credited 
on  account  by  him  who  received  it,  it  will  be 
treated  as  intended  as  a  payment,  unless  it  is 
shown  to  have  been  delivered  as  a  loan  ;  but  not 
so  with  personal  property,  even  though  a  value 
be  affixed  thereto.  Norton  v.  Larco,  30  Cal.  127; 
89  Am.  Dec.  70:  see  also  Weatherwax  v.  Co- 
sumnes  Valley  Mill  Co.,  17  Cal.  344. 

8.  Generally.  See  note  to  §  339,  ante.  Adams 
V.  Patterson,  35  Cal.  122. 


Action  by  people.    Ante,  §  315. 

Legislation  8  345.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1850,  p.  343),  and  then  read: 
"The  limitations  prescribed  in  this  chapter  apply 
to  actions  brought  in  the  name  of  the  state,  or 
for  the  benefit  of  the  state,  in  the  same  manner 
as  to  actions  by  private  parties." 

3.   Amended  by  Stats.  1905,  p.  487. 

Application  of  section.  The  rule  that 
the  statute  of  limitations  does  not  apply  to 


§346 


ACTIONS  OTHER  THAN  FOR  RECOVERY  OF  REAL  PROPERTY. 


200 


Am.  St.  Eep.  134;  21  Pac.  554.  This  sec- 
tion relates  to  the  actions  mentioned  in 
this  chapter  (People  v.  Center,  66  Cal.  551; 
5  Pac.  263;  6  Pac.  481);  and  it  is  appli- 
cable in  an  action  to  enforce  the  forfeiture 
of  a  corporate  franchise  on  account  of  non- 
user  or  misuser.  People  v.  Stanford,  77 
Cal.  360;  2  L.  R.  A.  92;  18  Pac.  85;  19  Pac. 
693.  An  action  brought  by  the  people,  on 
the  relation  of  the  controller,  against  a 
former  secretary  of  state,  on  an  account 
stated  by  the  controller  under  §  437  of  the 
Political  Code,  for  money  alleged  to  have 
been  received  by  the  defendant  in  his  offi- 

§  346.  Action  to  redeem  mortgage.  An  action  to  redeem  a  mortgage  of 
real  property,  with  or  without  an  account  of  rents  and  profits,  may  be 
brought  by  the  mortgagor  or  those  claiming  under  him,  against  the  mort- 
gagee in  possession,  or  those  claiming  under  him,  unless  he  or  they  have 
continuously  maintained  an  adverse  possession  of  the  mortgaged  premises 
for  five  years  after  breach  of  some  condition  of  the  mortgage. 

"Action"   includes   special  proceeding   of   civil       Am.  Dec.   73.     He  who   seeks   equity  must 


cial  capacity,  but  for  which  he  had  failed 
to  account  or  make  any  settlement  -with. 
the  controller,  is  affected  by  the  statute  of 
limitations  in  the  same  manner  as  it  vrould 
be  were  the  action  brought  by  a  private 
person.  People  v.  Melone,  73  Cal.  574;  15 
Pac.  294. 

Maxim  that  "time  does  not  run  against  the 
crown."    See  note  101  Am.  St.  Rep.  146. 

Running  of  statute  of  limitations  against  siS 
dependent  upon  state  being  real  party  in  interest. 
See   note   8   Ann.   Cas.    702. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 


nature.    Post,  §  363. 

Legislation  §  346.      Enacted  April  1,  1872. 

Action  to  redeem  mortgage  of  real  prop- 
erty. This  section  expressly  relates  to  suits 
in  equity.  Lux  v.  Haggin,  69  Cal.  255;  4 
Pac.  919";  10  Pac.  674.  It  also  applies  to 
cases  in  which  there  has  been  no  fore- 
closure of  the  mortgage  and  equity  of  re- 
demption; but  such  right  is  lost  after  the 
expiration  of  six  months  from  the  sale 
under  foreclosure  proceedings,  except  in 
those  cases  in  which  fraud  has  intervened, 
rendering  the  decree  and  the  sale  there- 
under voidable.  Collins  v.  Scott,  100  Cal. 
446;  34  Pac.  1085.  It  does  not  apply  where 
the  contract  was  entered  into  before  the 
passage  of  the  code  (Allen  v,  Allen,  95  Cal. 
184;  16  L.  E.  A.  646;  30  Pac.  213),  nor  to  a 
conveyance  executed  prior  thereto  (Green 
%-.  Thornton,  8  Cal.  App.  160;  96  Pac.  382)  ; 
nor  does  it  apply  to  a  case  where  it  would 
effect  a  material  change  in  the  rights  and 
obligations  of  the  parties.  Allen  v.  Allen,  27 
Pac.  30.  In  actions  to  redeem  a  mortgage, 
the  limitations  in  this  section  alone  con- 
trol. Warder  v.  Enslen,  73  Cal.  291;  14 
Pac.  874;  De  Cazara  v.  Orena,  80  Cal.  132; 
22  Pac.  74;  Collins  v.  Scott,  100  Cal.  446; 
34  Pac.  1085.  The  right  to  foreclose  a 
mortgage,  and  the  right  to  redeem  there- 
from, before  the  code,  were  reciprocal,  and 
when  one  was  barred,  the  other  was  also 
barred.  Cunningham  v.  Hawkins,  24  Cal. 
403;  85  Am.  Dec.  73;  Arrington  v.  Liscom, 
34  Cal.  365;  94  Am.  Dec.  722;  Espinosa  v. 
Gregory,  40  Cal.  58.  Whenever  a  debt 
secured  by  a  deed  is  barred,  the  right  to 
redeem  is  also  barred.  Hughes  v.  Davis, 
40  Cal.  117;  Espinosa  v.  Gregory,  40  Cal. 
58.  The  right  to  redeem  and  the  right  of 
the  creditor  to  sue  are  reciprocal;  when 
one  is  lost,  the  other  cannot  be  enforced. 
Cunningham  v.   Hawkins,   24   Cal.   403;   85 


do  equity;  and  a  mortgagor  who  seeks  to 
quiet  title  against  the  mortgagee  in  posses- 
sion, must  pay  the  mortgage  as  a  condition 
of  success  in  his  suit.  Brandt  v.  Thomp- 
son, 91  Cal.  458;  27  Pac.  763;  Peshine  v. 
Ord,  119  Cal.  311;  63  Am.  St.  Rep.  131;  51 
Pac.  536;  Booth  v.  Hoskins,  75  Cal.  271; 
17  Pac.  225;  De  Cazara  v.  Orena,  80  Cal. 
132;  22  Pac.  74;  Spect  v.  Spect,  88  Cal. 
437;  22  Am.  St.  Rep.  314;  13  L.  R.  A.  137; 
26  Pac.  203.  If  the  mortgagee,  in  such 
case,  denies  that  there  is  any  equity  to  be 
done  between  him  and  the  mortgagor,  and 
asserts  title  in  himself,  and  otherwise  mani- 
fests adverse  holding,  the  mortgagor,  or 
those  claiming  in  his  right,  must  proceed 
against  the  mortgagee  in  five  years,  or  lose 
all  remedy,  whether  the  debt  or  obligation 
secured  by  the  mortgage  has  been  paid  or 
not.  Peshine  v.  Ord,  119  Cal.  311;  63  Am. 
St.  Rep.  131;  51  Pac.  536;  Warder  v.  Enslen, 
73  Cal.  291;  14  Pac.  874.  Ejectment  can- 
not be  maintained  against  a  mortgagee  in 
possession,  by  the  mortgagor  or  his  as- 
signee, where  the  debt  has  been  barred  by 
the  statute.  Spect  v.  Spect,  88  Cal.  437; 
22  Am.  St.  Rep.  314;  13  L.  R.  A.  137;  26 
Pac.  203;  Peshine  v.  Ord,  119  Cal.  311;  63 
Am.  St.  Rep.  131;  51  Pac.  536. 

Adverse  possession  of  premises.  Where 
a  party  enters  under  a  deed  absolute,  which 
is  given  as  security  for  a  debt,  and  holds 
thereunder,  his  possession  is  not  adverse 
until  he  gives  notice  to  the  grantor  that 
he  claims  to  own  the  land  in  fee;  and  an 
action  to  redeem  from  such  deed  must  be 
commenced  within  five  years  after  an  ad- 
verse claim  of  title  has  been  made  mani- 
fest. Prink  v.  Le  Roy,  49  Cal.  314;  Warder 
v.  Enslen,  73  Cal.  291;  14  Pac.  874;  Peshine 
v.  Ord,  119  Cal.  311;  63  Am.  St.  Eep.  131; 
51  Pac.  536.  A  deed,  absolute  in  form, 
constitutes  a  cloud  upon  the  title  of  the 
grantor,   which   may    be    removed    at    any 


201  REDEMPTION — NO  LIMITATION — COMMENCEMENT  OF  ACTION.       §§  347-349 

lime  upon  doing  equity,  by  redemption  and  provided  there   has   not  been   adverse  pos- 

payment  of  the  amount  due,  regardless  of  session  for  five  years.    Raynor  v.  Drew,  72 

the    possession    of    the    grantee.     Hall    v.  Cal.  307;  13  Pac.  8G6. 

Arnott,  80  Cal.  348;   20  Pac    200.     An  ac-  ^^^^  COMMISSIONERS'  NOTE.   This  section 

tion  to  redeem  may  be  brought  at  any  time,  ^as  added  by  act  of  April  i,  1872  [unpublished). 

§  347.     Same,  when  some  of  mortgagors  are  not  entitled  to  redeem.     If 

there  is  more  than  one  such  mortgagor,  or  more  than  one  person  claiming 
under  a  mortgagor,  some  of  whom  are  not  entitled  to  maintain  such  an  ac- 
tion under  the  provisions  of  this  chapter,  any  one  of  them  who  is  entitled  to 
maintain  such  an  action  may  redeem  therein  a  divided  or  undivided  part  of 
the  mortgaged  premises,  according  as  his  interest  may  appear  and  have  an 
accounting,  for  a  part  of  the  rents  and  profits  proportionate  to  his  interest 
in  the  mortgaged  premises,  on  payment  of  a  part  of  the  mortgage  money, 
bearing  the  same  proportion  to  the  whole  of  such  money  as  the  value  of 
his  divided  or  undivided  interest  in  the  premises  bears  to  the  whole  of  such 
premises. 

Legislation  §  347.      Enacted  April  1,  1873.  was  added  by  act  of  April  1,  1872  [unpublished], 

CODE  COMJMISSIONEKS'  NOTE.    This  section 

§  348,  No  limitations  where  money  deposited  in  bank.  To  actions  brought 
to  recover  money  or  other  property  deposited  with  any  bank,  banker,  trust 
company,  building  and  loan  association,  or  savings  and  loan  society  there 
is  no  limitation. 

Legislation  §  348.     1.  Added  by  Code  Amdts.        an  action  against  a  stockholder  of  a  bank, 

^^l^lLt'Je/hvSt^t..  1915,  p.  684,  inserting  "^?^!;  l^^'^'o^^*^""/,^;^*:^^"  7'  Beckman,  64 
"building  and  loan  association."  <^al-  H' ;  "8  Pac.  110) ;  but  the  right  cannot 

Actions  to  recover  deposits  from  banks,  ^^"^^  ^S^'^'^J  ^^^^A'^^u  ^f^  ^  stockholder 

There  is  no  limitation  to  an  action  brought  %^  ^he  same  time.    Mi  chell  v.  Beckman    64 

to    recover    money    deposited    in    a    bank.  ^al.    117;    28    Pac.    110;    Mokelumne    Hill 

n                /-\j  1   T71  11        .  o      •           t      T>     1  Canal   etc.   Co.  v,  Woodbury,   14  Cal.  265: 

Green  v.  Odd  Fellows    Savings  etc.  Bank,  _      .,              t>     i  •      o^  n  i    rAo      mi. 

«<^  n„i    -71     o   -D^^    OCT     TVT-4.  1    11         T}^^i.  Davidson  V.  Kankm,  34  Cal.  503.     The  ap- 

DO   Cai.   tl;   2  Pac.  887;  Mitciiell  v.  Beck-  ,.     ,.,..        «  .,        . '  .    .        i-  i-     -i.   .-          • 

rvov,   cA  n„i    117    OQ  -D.,      nn    xxT  n     T?^ „  plicability  of  the  statute  of  limitations  is 

man,  64  Cal.  117    28  Pac.  110;  Wells,  i  argo  \   ,         •    "^i  ,      ..          .           ^  i.i,       ■   i..          ■, 

&  Co.  V.  Enright,  127  Cal.  669;  49  L.  R.  A.  determined  by  the  nature  of  the  right  sued 

647;  60  Pac.  439!  A  deposit  i^n  a  bank,  of  "?«"'  7*  ^^ }^^  ^3,™  °^  ^^^  fTr''^^ 
shai^es  of  stock,  as  collateral  security,  is  not       "^^^J'n'"f°o.f.-Q?^     ^'^?o 

_     j„       _*i       J!   „  j_i  j_       •        _  1113,,  XDo  V_  3.1.  CiO-i .  y*!  i  3C.  ooi/. 

a  deposit  of  money  or  other  property  ma'  ' 

bank,  within  this  section.    Bell  v.  Bank  of  Running  of  statute  of  limitations  against  action 

California,  153  Cal.  234;  94  Pac.  889.  It  is  Cas^iTI"  '^^*°"*  °^  ^°''^^'  ^^^  """^^  ^  ^'^' 
uncertain  whether  there  is  any  limitation  to 

§349.  Time  for  commencing  actions  under  "local  improvement  act  of 
1901,"  Any  action  to  contest  an  assessment  levied  by  the  legislative  body 
of  any  municipality  under  the  terms  of  the  "loca'  improvement  act  of  1901," 
must  be  commenced  within  thirty  days  after  the  entry  upon  the  minutes  of 
such  legislative  body  of  the  resolution  provided  for  in  section  eight  of  said 
"local  improvement  act  of  1901." 

Legislation  g  349.     Added  by  Stats.  1901,  p. 

44. 


§§  350,  351      GENERAL  PROVISIONS  AS  TO  TIME  OF  COMMENCING  ACTIONS.  202 


CHAPTER  IV. 

GENEEAL  PROVISIONS  AS  TO   TIME  OF  COMMENCING  ACTIONS. 


§  357.    Disability  must  exist  when  right  of  action 

accrued. 
§  358.     When  two   or  more  disabilities   exist,   etc. 
§  359.     This  title  not  applicable  to  actions  against 

directors,  etc.    Limitations  in  such  cases 

prescribed. 

60.  Acknowledgment  or  new  promise  must  be 
in  writing. 

61.  Limitation  laws  of  other  states,   effect  of. 

62.  Existing  causes  of  action  not  affected. 

63.  "Action"  includes  a  special  proceeding. 


§3 


§  350.     When  an  action  is  commenced. 

§  351.  Exception,  where  defendant  is  out  of  the 
state. 

§  352.  Exception,  as  to  persons  under  disabil- 
ities. 

§  353.  Provision  where  person  entitled  dies  be- 
fore limitation  expires. 

§  354.  In  suits  by  aliens,  time  of  war  to  be 
deducted. 

§  355.  Provision  where  judgment  has  been  re- 
versed. 

§  356.  Provision  where  action  is  stayed  by  in- 
junction. 

§  350.     When  an  action  is  commenced.     An  action  is  commenced,  within 
the  meaning  of  this  title,  when  the  complaint  is  filed. 

Enacted  March  11,  1873;  Co.,  61  Cal.  149.  A  counterclaim,  which  is 
not  barred  at  the  commencement  of  the 
action,  may  be  set  up.  Perkins  v.  West 
Coast  Lumber  Co.,  120  Cal.  27;  52  Pac.  118; 
Lyon  V.  Petty,  65  Cal.  322;  4  Pac.  103. 
Where  a  supplemental  complaint  is  filed, 
bringing  in  new  parties,  as  to  such  parties 
the  suit  is  not  commenced  until  the  filing 
of  the  new  pleading  (Jeffers  v.  Cook,  58 
Cal.  147;  Spaulding  v.  Howard,  121  Cal. 
194;  53  Pac.  563;  Baker  v.  Baker,  136  Cal. 
302;  68  Pac.  971;  Lord  v.  Morris,  18  Cal. 
482;  McCarthy  v.  White,  21  Cal.  495;  82 
Am.  Dec.  754;  Lent  v.  Shear,  26  Cal.  361; 
Lawrence  v.  Ballou,  50  Cal.  258;  Atkinson 
V.  Amador  etc.  Canal  Co.,  53  Cal.  102),  as 
it  would  be  unjust  to  make  defendants  re- 
sponsible for  proceedings  of  which  they 
had  no  notice.   Jeffers  v.  Cook,  58  Cal.  147. 

CODE  COlVnvnSSIONEES'  NOTE.  Stats.  1850, 
p.  343.  To  prevent  the  bar  of  the  statute  of 
limitations,  no  other  proeieding  is  necessary,  ex- 
cept filing  the  complaint,  when,  for  all  purposes 
of  the  statute,  the  action  is  commenced.  The  is 
suance  of  summons  is  not  necessary  to  the  com- 
mencement of  the  action.  Sharo  v.  Maguire,  19 
Cal.  577.  See  also  Allen  v.  Marshall,  34  Cal.  166; 
Pimental  v.  San  Francisco,  21  Cal.  351;  Adams 
V.  Patterson,  35  C4I.  122. 


Legislation  §  350. 
based  on  Stats.  1850,  p.  343 

When  an  action  is  commenced.  An  ac- 
tion is  commenced,  as  to  the  parties  named, 
when  the  complaint  is  filed  in  the  proper 
court,  so  far  as  the  statute  of  limitations 
is  concerned,  and,  to  prevent  the  bar,  no 
other  proceedings  are  necessary.  Sharp  v. 
Maguire,  19  Cal.  577;  Pimental  v.  San 
Francisco,  21  Cal.  351;  Allen  v.  Marshall, 
34  Cal.  165;  Jeffers  v.  Cook,  58  Cal.  147. 
The  issuance  of  a  summons  is  not  neces- 
sary to  the  commencement  of  an  action 
(Sharp  V.  Maguire,  19  Cal.  577;  Pimental 
V.  San  Francisco,  21  Cal.  351;  Allen  v. 
Marshall,  34  Cal.  165) ;  but  this  section 
applies  only  to  the  statute  of  limitations, 
and  not  to  actions  which  must  be  com- 
menced by  filing  a  complaint  and  issuing  a 
summons.  Flaudreau  v.  White,  18  Cal.  639; 
Sharp  V.  Maguire,  19  Cal.  577.  A  new 
cause  of  action  set  out,  or  a  cause  of  action 
extended  to  property  not  embraced  in  the 
original  complaint,  does  not  relate  back, 
for  the  purpose  of  interrupting  the  statute 
of  limitations,  to  the  date  of  filing  the 
original  complaint.  Anderson  v.  Mayers, 
50  Cal.  525;  Meeks  v.  Southern  Pacific  E.  E. 

§  351.  Exception,  where  defendant  is  out  of  the  state.  If,  when  the 
cause  of  action  accrues  against  a  person,  he  is  out  of  the  state,  the  action 
may  be  commenced  within  the  term  herein  limited,  after  his  return  to  the 
state,  and  if,  after  the  cause  of  action  accrues,  he  departs  from  the  state, 
the  time  of  his  absence  is  not  part  of  the  time  limited  for  the  commencement 
of  the  action. 


Legislation  §351.  Enacted  March  11,  1873; 
based  on  Stats.  1850,  p.  343. 

Absence  from  the  state.  When  the  de- 
fendant is  absent  from  the  state  at  the 
time  of  the  maturity  of  his  obligation,  the 
statute  does  not  commence  to  run  until 
he  returns  to  the  state  (Dougall  v.  Sehulen- 
berg,  101  Cal.  154;  35  Pac.  635;  ChappeH 
V.  Thompson,  21  Cal.  App.  136;  131  Pac. 
82;  McCormick  v.  Marcy,  1G5  Cal.  386; 
132  Pac.  449),  and  the  time  of  his  absence 
is  to  be  deducted  from  the  whole  time  run 
(Stone  V.  Hammell,  83  Cal.  547;  17  Am.  St. 


Eep.  272;  8  L.  E.  A.  425;  23  Pac.  703;  San- 
ford  V.  Bergin,  156  Cal.  43;  103  Pac.  333; 
King  V.  Armstrong,  9  Cal.  App.  368;  99 
Pac.  527);  and  successive  absences  from 
the  state  must  be  deducted  from  the  whole 
time  run  since  the  cause  of  action  accrued. 
Eogers  v.  Hatch,  44  Cal.  280;  Watt  v. 
Wright,  66  Cal.  202;  5  Pac.  91.  When  the 
period  of  limitation  has  once  begun  to  run, 
it  cannot,  except  as  provided  by  statute, 
be  postponed,  suspended,  or  interrupted  by 
any  subsequent  condition.  Congregational 
Church  Bldg.  Soc.  v.  Osborn,  153  Cal.  197; 


203 


EXCEPTION,  AS  TO  PERSONS  UNDER  DISABILITIES. 


§352 


94  Pac.  881.  The  word  "return,"  in  this 
section,  applies  to  persons  coming  from 
abroad,  as  well  as  to  citizens  of  this  coun- 
try going  abroad,  for  a  temporary  purpose, 
and  then  returning.  Palmer  v.  Shaw,  16 
Cal.  93;  Rogers  v.  Hatch,  44  Cal.  280.  A 
clandestine  return  to  the  state,  with  in- 
tent to  defraud  a  creditor,  by  setting  the 
statute  in  operation,  and  then  departing, 
is  not  such  a  return  as  the  statute  contem- 
plates, and  has  not  the  effect  of  setting  the 
statute  in  motion.  Palmer  v.  Shaw,  16 
Cal.  93;  Stewart  v.  Stewart,  152  Cal.  162; 
14  Ann.  Cas.  940;  92  Pac.  87.  Where  a 
debtor  departs  from  the  state,  and  returns 
openly,  the  fact  that  the  creditor  did  not 
learn  of  his  presence  here  is  immaterial  in 
determining  whether  the  statute  has  run. 
Stewart  v.  Stewart,  152  Cal.  162;  14  Ann. 
Cas.  940;  92  Pac.  87.  This  section  does 
not  deprive  non-residents  of  the  benefits  of 
the  statute  of  limitations:  it  merely  ex- 
cludes from  computation  the  time  during 
which  any  defendant,  resident  or  non- 
resident, may  have  been  out  of  the  state. 
Foster  v.  Butler,  164  Cal.  623;  130  Pac.  6. 
The  absence  of  a  co-surety  from  the  state 
does  not  extend  the  time  within  which  an 
action  may  be  brought  against  the  prin- 
cipal (Stone  V.  Hammell,  S3  Cal.  547;  17 
Am.  St.  Rep.  272;  8  L.  R.  A.  425;  23  Pac. 
703);  and  the  absence  of  a  mortgagor  from 
the  state  does  not  interrupt  the  running 
of  the  statute  as  to  subsequent  lienhoklers, 
or  holders  of  the  equity  of  redemption. 
Watt  V.  Wright,  66  Cal.  202;  5  Pac.  91. 
The  mortgagor  has  no  power,  by  stipula- 
tion, to  prolong  the  time  of  payment,  or 
in  any  manner  to  increase  the  burdens  on 
mortgaged  premises.  Wood  v.  Goodfellow, 
43  Cal.  185;  Lord  v.  Morris,  18  Cal.  482; 
Lent  V.  Morrill,  25  Cal.  492;  Lent  v.  Shear, 
26   Cal.   361;   Barber  v.  Babel,  36   Cal.   11; 

§  352.  Exception,  as  to  persons  under  disabilities.  If  a  person  entitled  to 
bring  an  action,  mentioned  in  chapter  three  of  this  title,  be,  at  the  time  the 
cause  of  action  accrued,  either : 

1.  Within  the  age  of  majority ;  or, 

2.  Insane ;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  under  the  sentence  of 
a  criminal  court  for  a  term  less  than  for  life  ;  or, 

4.  A  married  woman,  and  her  husband  be  a  necessary  party  with  her  in 
commencing  such  action : 

— The  time  of  such  disability  is  not  a  part  of  the  time  limited  for  the  com- 
mencement of  the  action. 


Sichel  V.  Carrillo,  42  Cal.  493.  A  corpora- 
tion, domiciled  in  another  state,  with  an 
agent  in  this  state  in  possession  of  land 
for  and  in  behalf  of  the  corporation,  is 
not  absent  from  the  state,  within  the  mean- 
ing of  this  section,  and  is  entitled  to  set 
up  the  bar  of  the  statute  as  a  defense 
(Lawrence  v.  Biillou,  50  Cal.  258);  but  a 
failure  to  ai)point  such  agent,  and  prove 
the  fact  at  the  trial,  depiives  a  foreign 
corporation  of  the  right  to  plead  the  stat- 
ute. O'Brien  v.  Big  Casino  Gold  Mining 
Co.,  9  Cal.  App.  283;  99  Pac.  209.  The 
absence  from  the  state  of  the  trustee  of 
an  express  trust  in  land  does  not  relieve 
the  injured  party  from  bringing  an  action 
within  the  limited  time  (Seculovich  v. 
Morton,  101  Cal.  673;  40  Am.  St.  Rep.  106; 
36  Pac.  387),  as  absence  from  the  state, 
in  such  a  case,  does  not  deprive  the  plain- 
tiff of  a  remedy.  Perkins  v.  Wakeham,  86 
Cal.  580;  21  Am.  St.  Rep.  67;  25  Pac.  51; 
Seculovich  v.  Morton,  101  Cal.  673;  40  Am. 
St.  Rep.  106;  36  Pac.  387.  The  plaintiff 
must  allege  absence  from  the  state  on  the 
part  of  the  defendant,  where  such  fact  is 
relied  upon  to  take  the  case  out  of  the 
statute  (Bass  v.  Berry,  51  Cal.  264;  Dougall 
V.  Schulenberg,  101  Cal.  154;  35  Pac.  635); 
but  this  general  exception  does  not  apply 
to  an  action  upon  a  stockholder's  liability, 
which  is  governed  by  §  359,  post.  King  v. 
Armstrong,  9  Cal.  App.  368;  99  Pac.  527. 

What  constitutes  absence  from  state.  See  note 
83  Am.  Dee.  644. 

Return  of  debtor  to  state  sufficient  to  start 
statute  of  limitations  running.  See  note  14  Ann. 
(a.s.  941. 

What  constitutes  "residence  out  of  the  state" 
within  meaning  of  statute.  See  note  17  L.  R.  A. 
(N.    S.)    225. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p  343.  See  Palmer  v.  Shaw,  16  Cal.  93;  Nelson 
V.  Nelson,  6  Cal.  430. 


Disabilities   stopping   running  of   statute.     See 

ante,  §  328. 

Legislation  8  352.  1.  Enacted  March  11,  1872; 
based  on  Stats.   1863,  p.  326. 

2.  Amendment  by  Stats.  1901,  p.  125;  un- 
constitutional.    See   note   ante,  §  5. 

Within  the  age  of  majority.  An  infant 
may  bring  an  action  within  the  statutory 
time  after  attaining  his  majority.    Morrell 


V.  Morgan,  65  Cal.  575;  4  Pac.  580;  Crosby 
V.  Dowd,  61  Cal.  557. 

Disabilities  which  stop  the  running  of 
the  statute.     See  ante,  §  328,  and  note. 

Disabilities  which  interrupt  operation  of  stat- 
ute of  limitations.    See  note  36  Am.  Dec.  68. 

Interruption  of  running  of  statute  of  limita- 
tions on  account  of  infancy  of  heir,  devisee  or  dis- 
tributee.   See  note  3   Ann.   Cas.   837. 


§§  353,  354      GENERAL  PROVISIONS  AS  TO  TIME  OF   COMMENCING  ACTIONS.  204 


CODE  COMMISSIONERS'  NOTE.    Stats.  1863, 

iT  Action  to  set  aside  deed  of  insane  man.  If 
a  person,  while  insane,  is  fraudulently  induced 
to  execute  a  conveyance  of  his  property  lo 
another,  the  statute  of  limitations  will  not  com- 
mence running  against  the  grantor's  right  to  com- 
mence an  action  to  set  aside  the  deed  until  he 
recovers  his  reason  and  discovers  what  he  has 
done.    Crowther  v.  Rowlandson,  27  Cal.  376. 


2.  Married  women.  The  statute  runs  against 
a  married  woman  in  all  those  actions  to  which 
her  husband  is  not  a  necessary  party  with  her, 
in  commoncing  the  action  the  same  as  other  par- 
ties. "Wilson  V.  Wilson,  36  Cal.  447;  95  Am. 
Dec.  194. 

3.  Separate  property.  Actions  may  be  brought 
by  the  wife,  when  they  concern  her  separa+e 
property,  or  are  against  her  husband,  etc.  Wil- 
son V.  Wilson,  36  Cal.  447  ;  95  Am.  Dec.  194. 


§ 


353.    Provision  where  person  entitled  dies  before  limitation  expires.    If 

a  person  entitled  to  bring  an  action  die  before  the  expiration  of  the  time 
limited  for  the  commencement  thereof,  and  the  cause  of  action  survive,  an 
action  may  be  commenced  by  his  representatives,  after  the  expiration  of  that 
time,  and  within  six  months  from  his  death.  If  a  person  against  whom  an 
action  may  be  brought  die  before  the  expiration  of  the  time  limited  for  the 
commencement  thereof,  and  the  cause  of  action  survive,  an  action  may  be 
commenced  against  his  representatives,  after  the  expiration  of  that  time, 
and  within  one  year  after  the  issuing  of  letters  testamentary  or  of  adminis- 
tration. 


Substitution  of  parties.    See  post,  §  38.5. 

Survival  of  actions.  See  post,  §§  385,  1582, 
1584. 

"Action"  includes  special  proceeding  of  civil 
nature.    See  post,  §  363. 

Claim  against  decedent's  estate  which  has  been 
ailowed,  not  aSected  by  statute.    See  post,  §  1569. 

Legislation  §  353.  Enacted  March  11,  1ST3; 
based  on  Stats.   1850,  p.  343. 

Effect  of  death  on  running  of  statute. 
This  section  is  applicable  only  to  causes  of 
action  against  which  the  statute  has  com- 
menced to  run  (Smith  v.  Hall,  19  Cal.  85); 
it  is  imperative,  and  applies  to  all  claims 
arising  upon  a  contract  (Estate  of  Hilde- 
brandt,  92  Cal.  433;  2S  Pac.  4SS);  and 
while  the  first  clause  may,  under  some  cir- 
cumstances, prolong  the  time  originally 
limited,  yet  it  cannot  operate,  in  any  case, 
to  shorten  it.  Lowell  v.  Kier,  50  Cal.  646; 
Smith  V.  Hall,  19  Cal.  So. 

Action  by  representative  of  deceased. 
This  section  does  not  apply  to  an  action 
upon  a  claim  against  the  estate  of  another 
deceased  person  (Morrow  v.  Barker,  119 
Cal.  65;  51  Pac.  i2),  nor  to  an  action  to 
cancel  a  deed  for  fraud  and  undue  influ- 
ence, and  to  recover  an  interest  in  the  real 
propertv  so  obtained.  Page  v.  Garver,  146 
Cal.  577;  80  Pac.  860. 

Action  against  representatives  of  de- 
ceased person.  The  statute  does  not  com- 
mence to  run,  where  administration  has 
not  been  granted  on  an  estate  (Danglada 
v.  De  la  Guerra,  10  Cal.  386;  Smith  v.  Hall, 
19  Cal.  85;  Estate  of  Bullard,  16  Cal.  355; 
48  Pac.  219;  Tynan  v.  Walker,  35  Cal.  634; 
95  Am.  Dec.  152;  Hibernia  Sav.  &  L.  Soc. 
v.  Herbert,  53  Cal.  375;  Casev  v.  Gibbons, 
136  Cal.  368;  68  Pac.  1032);  iior  on  an  ac- 
tion to  foreclose  a  mortgage  not  due  at  the 
death  of  the  mortgagor,  while  there  is  no 
administration  on  the  mortgagor's  estate 
(Heeser  v.  Taylor,  1  Cal.  App.  619;  82  Pac. 
977);    it   does   not   necessarily   extend   the 


time  for  commencing  an  action  against  the 
personal  representatives  of  a  deceased  per- 
son; it  only  gives  the  plaintiff  one  year 
for  the  appointment  of  the  representative, 
where  he  has  not  that  much  time  under  the 
statute  of  limitations  (McMillan  v.  Hay- 
ward,  94  Cal.  357;  29  Pac.  774);  but  the 
statute  is  suspended  only  as  to  the  repre- 
sentative of  the  deceased  person;  as  to  the 
grantee  of  the  mortgaged  premises,  the 
statute  commences  to  run  on  the  death  of 
the  party,  regardless  of  the  appointment 
of  the  administrator.  California  Title  Ins. 
etc.  Co.  V.  Miller,  3  Cal.  App.  54;  84  Pac. 
453.  A  mortgage  is  not  required  to  be 
presented  to  the  representative  of  the 
mortgagor  (Hibernia  Sav.  &  L.  Soc.  v.  Con- 
lin,  67  Cal.  178;  7  Pac.  477);  but  other 
claims  must  be  presented  to  the  adminis- 
trator. Morrow  v.  Barker,  119  Cal.  65;  51 
Pac.  12;  Tvnan  v.  Walker,  35  Cal.  634;  95 
Am.  Dee.  152;  Siehel  v.  Carrillo,  42  Cal. 
493.  Where  a  mortgage  is  given  to  secure 
debts  payable  in  installments,  the  statute 
runs  against  such  installment  from  its  ma- 
turity. Hibernia  Sav.  &  L.  Soc.  v.  Herbert, 
53  Cal.  375;  Tyuan  v.  Walker,  35  Cal.  634; 
95  Am.  Dec.  152. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  "If  a  person  against  whom  an  action  may 
be  brought  die,"  etc.  See  Smith  v.  Hall,  19  Cal. 
85. 

2.  Estates  of  deceased  persons.  Administra- 
tion not  granted.  A  note  due  shortly  after  the 
death  of  the  maker,  in  1852,  letters  of  adminis- 
tration were  issued  in  1856,  and  no  notice  to 
creditors  having  befti  published,  the  note  was 
presented  to  the  administrator  in  1859  and  re- 
jected. Suit  was  brought  on  the  claim  immedi- 
ately after  rejection.  Held:  the  note  was  not 
barred  by  the  statxite  of  limitations.  Smith  v. 
Hall,  19  Cal.  85.  The  statute  of  limitations  does 
not  begin  to  run,  when  no  administration  exists 
on  decedent's  estate  at  the  time  the  cause  of  ac- 
tion accrued.  Danglada  v.  De  la  Guerra,  10  Cal. 
386:  Smith  v.  Hall,  19  Cal.  85;  see  also  Soto  v. 
Kroder,  19  Cal.  87. 


§  354.     In  suits  by  aliens,  time  of  war  to  be  deducted.     When  a  person  is 
an  alien  subject,  or  citizen  of  a  country  at  war  wdth  the  United  States,  the 


205  REVERSAL ACTION   STAYED — DISABILITY — LIMITATION.         §§355-359 

time  of  the  continuance  of  the  war  is  not  part  of  the  period  limited  for  the 
commencement  of  the  action. 

Legislation  8  354.      Enacted  March   11,   1873;  CODE  COMMISSIONERS'  NOTE.    Stats.  1850, 

based  on  Stats.   1850,  p.  343.  p.  34:j. 

§  355.  Provision  where  judgment  has  been  reversed.  If  an  action  is  com- 
menced within  the  time  prescribed  therefor,  and  a  judg'ment  therein  for  the 
plaintiff  be  reversed  on  appeal,  the  plaintiff,  or  if  he  die  and  the  cause  of 
action  survive,  his  representatives,  may  commence  a  new  action  within  one 
year  af  .er  the  reversal. 

Legislation  §  355.  1.  Enacted  March  11,  1872;  59-;  70  Pac.  556.  A  reversal  upon  appeal 
'^t'Xmendment'b;*  gtatl'-1901,  p.  125;  un-  ^oes  not  include  an  annulling  upon  a  writ 
constitutional.     See  note   ante,  §5.  of   review.     Fay  V.   Costa,   2    Cal.   App.   241; 

New  actions.    This  section  permits  a  new  °^  Fac  275. 
action   of  any   kind,   having  for  its   result  CODE  COMMISSIONERS'  NOTE.    Stats.  1850, 

the    same    relief    as    was    obtained    in    the  P-  343. 
original  action.    Kenney  v.  Parks,  137  Cal. 

§356.  Provision  where  action  is  stayed  by  injunction.  When  the  com- 
mencement of  an  action  is  stayed  by  injunction  or  statutory  prohibition,  the 
time  of  the  continuance  of  the  injunction  or  prohibition  is  not  part  of  the 
time  limited  for  the  commencement  of  the  action. 

Legislation  §  356.      Enacted   March   11,    1873;  1S9;    59    Pac.    834.      The    statute    does    not 

based  on  Stats.  1850,  p.  343.  commence  to  run   during  the  pendency  of 

Action  stayed  by  injunction  or  statutory  insolvency  proceedings.     Union    Collection 

prohibition.     Where  an  action  is  stayed  by  Co.  v.  Soule,  141  Cal.  99;  74  Pac.  549.     A 

a   proceeding   in   bankruptcy,    the   time    of  statutory  prohibition,  which  is  not  consti- 

such  suspension  is  deducted  from  the  time  tutional,   is  not  within   this   section,   as   it 

prescribed    by    statute    (Hoff    v.    Funken-  cannot    operate    to    suspend    the    statute, 

stein,   54   Cal.   233),   and   the   period   from  Bates  v.  Gregory,  89  Cal.  3S7;  26  Pac.  8'91. 

the  time  on  which  the  claim  is  presented  The  theory  of  the  statute  of  limitations  is, 

by  the  administrator  until  its  rejection  by  that    the    creditor    has    the    full    statutory 

the  judge,  is  not  included  in  computing  the  time,  whatever  it  may  be,  during  which  he 

running  of  the  statute  against  the  action  may,  of  his  own  volition,  commence  an  ac- 

(Nally  V.   McDonald,   66   Cal.   530;   6   Pac.  tioii.    Hoff  v.  Funkenstein.  54  Cal.  233. 
390) ;  but  the  insolvency  of  a  debtor  does 

^    PvfPTifl    thp    timp   within    whifh    nn    no-  Suspension  of  statute  by  injunction.    See  notes 

not  extena  tne  time  witnm  wnicn  an   ac  4  ^^^^_  ^.^^    ^4.^.  gg  ^    ^    j^_  ^^g;   3  L.  R.  A. 

tion    must    be    commenced    to    foreclose    a        (n.  S.)  1187;  28  L.  R.  A.  (N.  S.)  673. 
mechanic's    lien.    Bradford    v.    Dorsey,    63  cOBB  COMMISSIONERS'  NOTE.   Stats.  1850 

Cal.   122;   Barclay  v.  Blackmton,   127   Cal.       p.  343. 

§  357.  Disability  must  exist  when  right  of  action  accrued.  No  person 
can  avail  himself  of  a  disability,  unless  it  existed  when  his  right  of  action 
accrued. 

Successive   disabilities.     See  post,  §  353;    ante,         based  on  Stats.  1850,  p.  343. 

^  ^^^'  CODE  COMMISSIONERS'  NOTE.    Stats.  1850, 

Legislation  §  357.      Enacted  March   11,    1873;        p.  343. 

§  358.  When  two  or  more  disabilities  exist,  etc.  When  two  or  more  dis- 
abilities coexist  at  the  time  the  right  of  action  accrues,  the  limitation  does 
not  attach  until  they  are  removed. 

Legislation  §  358.     Enacted  March   11,   1873;  CODE  COMMISSIONERS'  NOTE.    Stats.  1850, 

based  on  Stats.   1850,  p.  343.  p.  343. 

§  359.  This  title  not  applicable  to  actions  against  directors,  etc.  Limita- 
tions in  such  cases  prescribed.  This  title  does  not  affect  actions  against 
directors  or  stockholders  of  a  corporation,  to  recover  a  penalty  or  forfeiture 
imposed,  or  to  enforce  a  liability  created  by  law ;  but  such  actions  must  be 
brought  within  three  years  after  the  discovery  by  the  aggrieved  party  of 
the  facts  upon  which  the  penalty  or  forfeiture  attached,  or  the  liability  was 
created. 


§  359  GENERAL  PROVISIONS  AS   TO   TIME  OF    COMMENCING   ACTIONS. 


206 


Director's  personal  liability.  See  Civ.  Code, 
§  309. 

Legislation  §  359.  Enacted  March  11,  1873; 
based  on  Stats.   1850,  p.  343. 

Actions  against  directors  and  stockhold- 
ers of  corporations.     An  action  to  enforce 
the  liability  of  stockholders  is  within  this 
section    (Green   v.   Beckman,   59   Cal.   54.5; 
Hunt  V.  Ward,  99  Cal.  612;  37  Am.  St.  Rep. 
87;   34   Pac.   335;   Moore   v.   Boyd,   74   Cal. 
167;    15   Pac.   670;   O'Neill   v.   Quarnstrom, 
6  Cal.  App.  469;  92  Pac.  391;  King  v.  Arm 
strong,  9  Cal.  App.  368;  99  Pac.  527);  and 
the   giving  of   a   note   as   evidence   of   the 
debt  does  not  extend  the  time  for  bringing 
the  action.    O'Neill  v.  Quarnstrom,  6   Cal. 
App.  469;  92  Pac.  391.     Such  an  action  is 
also    an    obligation    arising    ou    contract. 
Kennedv  v.  California  Sav.  Bank,  97   Cal. 
93;  33  Am.  St.  Eep.  163;  31  Pac.  846;  Lon- 
don etc.  Bank  v.  Parrott,  125  Cal.  472;   73 
Am.  St.  Rep.  64;  58  Pac.  164.     An  attempt 
is  not   made   by  this   section   to   relieve   a 
stockholder  from  his  liability  (Santa  Rosa 
Nat.  Bank  v.  Barnett,  125  Cal.  407;  58  Pac. 
85)  ;  but  it  provides  that  the  action  must 
be  commenced  within  three  years  from  the 
date  on  which  the  debt  is  created,  whether 
the   cause   of   action   has   matured   or   not. 
Green  v.  Beckman,  59  Cal.   545;   Moore  v. 
Boyd,  74  Cal.  167;  15  Pac.  670;  Hyman  v. 
Coleman,  82  Cal.  650;  16  Am.  St.  Rep.  178; 
23  Pac.  62;  Hunt  v.  Ward,  99  Cal.  612;  37 
Am.  St.  Rep.  87;  34  Pac.  335;  Bank  of  San 
Luis  Obispo  v.  Pacific  Coast  S.  S.  Co.,  103 
Cal.  594;  37  Pac.  499;  Wells  v.  Black,  117 
Cal.  157;  59  Am.  St.  Rep.  162;  a7  L.  R.  A. 
619;    48    Pac.    1090;    Johnson    v.    Bank    of 
Lake,  125  Cal.  6;   73  Am.  St.  Rep.  17;   57 
Pac.  664;  London  etc.  Bank  v.  Parrott,  125 
Cal.  472;  73  Am.  St.  Rep.  64;  58  Pac.  164; 
Santa  Rosa  Nat.  Bank  v.  Barnett,  125  Cal. 
407;  58  Pac.  85;  Goodall  v.  Jack,  127  Cal. 
258;    59   Pac.   575;    Ryland   v.   Commercial 
etc.  Bank,  127  Cal.  525;  59  Pac.  989;  Jones 
V.  Goldtree  Bros.  Co.,  142  Cal.  383;  77  Pac. 
939;   Cook  v.   Ceas,  143   Cal.   221;   77   Pac. 
65;  O'Neill  v.  Quarnstrom,  6  Cal.  App.  469; 
92   Pac.   391.     An   action   against  a  stock- 
holder to  enforce  a  liability  created  by  law 
is  barred  by  the  lapse  of  three  years  after 
the  liability  is  created,  although  during  a 
part  of  the  time  he  was  absent  from  the 
state.   King  v.  Armstrong,  9  Cal.  App.  368; 
99  Pac.  527;  O'Neill  v.  Quarnstrom,  6  Cal. 
App.   469;    92   Pac.   391.     An   action   to  en- 
force the  statutory  liability  imposed  by  the 
laws  of  a  sister  state  upon  the  stockhold- 
ers of  a  banking  corporation  is  barred  in 
three  years  after   the  liability  is  created. 
Miller    v.    Lane,    160    Cal.    90;     116    Pac. 
58.     A    stockholder's    responsibility    com- 
mences with  that  of  the  corporation,  and 
continues   during  the   period   of   the   exist- 
ence of  the  indebtedness  (Mokelumne  Hill 
etc.  Mining  Co.  v.  Woodbury,  14  Cal.  265; 
Davidson  v.  Rankin,  34  Cal.  503);  but  the 
suspension   of  the   remedy   of  the  corpora- 
tion does  not  stop  the  running  of  the  stat- 


ute   (Young    V.    Rosenbaum,    39    Cal.    646; 
Hyman  v.  Coleman,  82  Cal.  650;  16  Am.  St. 
Rep.    178;    23    Pac.    62;    O'Neill    v.    Quarn- 
strom,   6    Cal.    App.    469;    92    Pac.    391); 
neither  does  the  extension  of  the  time  of 
payment   in  favor  of  the   corporation   toll 
the    statute    to    enforce    the    stockholder's 
liability.    Hyman  v.  Coleman,  82  Cal.  650; 
16  Am.' St.  Rep.  178;  23  Pac.  62;  Redington 
V.   Cornwell,  90   Cal.   49;   27   Pac.  40.     The 
liability  of  the  stockholder  is  separate  and 
independent,  founded  and  depending  upon 
the   original   liability   of   the   corporation; 
and  the  statute  begins  to  run  in  favor  of 
the  stockholder  from  the  date  of  the  exe- 
cution   of   a  note,   not   from   its   maturity. 
Hunt  V.  Ward,  99  Cal.  612;  37  Am.  St.  Reip. 
87;  34  Pac.  335;  Bank  of  San  Luis  Obispo 
V.  Pacific  Coast  S.  S.  Co.,  103  Cal.  594;  37 
Pac.  499.     The  statute  does  not  commence 
to    run    against    an    action    to    enforce    the 
personal  liability  of  the  stockholder,  until 
the   accrual   of   a   cause   of   action   against 
the  corporation.   .Johnson  v.  Bank  of  Lake, 
125   Cal.    6;    73   Am.   St.  Rep.   17;    57   Pac. 
664;   State  v.  McCauley,  15   Cal.  429;   Mc- 
Bean  v.  Fresno,   112  Cal.   159;   53  Am.  St. 
Rep.   191;    31   L.   R.   A.   794;    44   Pac.   358. 
Thus,  an   action  against  a  stockholder,  to 
recover    a   deposit    with    a    bank,    must    be 
commenced    within    three   years    after   the 
date  of  the  deposit  (Creen  v.  Beckman,  59 
Cal.  545;   Nellis  v.  Pacific  Bank,   127   Cal. 
166;  59  Pac.  830),  as  the  debt  was  created 
and  the  liability  incurred  at  the  time  of 
the  acceptance  of  each  of  the  deposits,  and 
at  the  expiration  of  three  years  the  stock- 
holder's  liability   is   at   an    end.     Wells   v. 
Black,  117  Cal.   157;  59  Am.  St.  Rep.  162; 
37    L.    R.    A.    619;    48   Pac.    1090;    Hunt    v. 
Ward,  99  Cal.  612;  37  Am.  St.  Rep.  87;  34 
Pac.    335;    Bank    of    San    Luis    Obispo    v. 
Pacific  Coast  S.  S.  Co.,  103  Cal.  594;  37  Pac. 
499;   Nellis  v.  Pacific  Bank,  127  Cal.   166; 
59  Pac.  830.     The  right  of  action  against 
the    stockholder,    on    account    of    his    indi- 
vidual responsibility  for  the  debts  and  lia- 
bilities of  the  corporation,  accrues  at  the 
same   time  as  the  right  of  action  against 
the   corporation,  and  is  not  contingent  on 
a   recovery   against   the    corporation.     Da- 
vidson V.  Rankin,  34  Cal.  503;  Mokelumne 
Hill  etc.  Mining  Co.  v.  Woodbury,  14  Cal. 
265;    Larrabee    v.    Baldwin,    35    Cal.    155; 
Young  v.  Rosenbaum,  39  Cal.  646;  Stilphen 
V.   Ware,  45  Cal.   110;   Hyman  v.   Coleman, 
82  Cal.  650;   16  Am.  St.  Rep.  178;  23  Pac. 
62.     The  payment  of  a  note  by  the  sureties 
of   a  corporation   creates  a  new  and  inde- 
pendent liability  on  the  part  of  the  stock- 
holders for  the  debt  thus  paid,  which  lia-    I 
bility   accrues   on   the   date   on   which   the 
note  is  paid  by  the  sureties,  and  is  barred 
in  three  years  thereafter  (Ryland  v.  Com- 
mercial  etc.   Bank,    127   Cal.   525;    59   Pac. 
989) ;    but    a    principal    debtor    is    not    a 
surety.    Mokelumne  Hill  etc.  Mining  Co.  v. 
Woodbury,   14   Cal.  265;   Davidson  v.  Ran- 
kin, 34  Cal.  503;  Young  v.  Rosenbaum,  39 


207 


ACKNOWLEDGMENT  OR  NEW  PROMISE   MUST  BE  IN  WRITING. 


§360 


Cal.  646;  Neilson  v.  Crawford,  52  Cal.  248; 
Sonoma  Valley  Bank  v.  Hill,  59  Cal.  107; 
Morrow  v.  Superior  Court,  64  Cal.  383; 
1  Pac.  354;  Hvman  v.  Coleman,  82  Cal. 
650;  16  Am.  St.  Kep.  178;  23  Pac.  62. 
Overdrafts  create  a  primary  liability  as 
they  occur,  and  the  statute  runs  in  favor 
of  the  stockholder  from  the  date  thereof. 
Santa  Rosa  Nat.  Bank  v.  Barnett,  125  Cal. 
407;  58  Pac.  85.  Where  a  corporation 
guarantees  the  future  payment  of  a  note, 
liability  is  barred  within  three  years  from 
the  date  of  guaranty.  First  Nat.  Bank  v. 
Consolidated  Lumber  Co.,  16  Cal.  App.  267; 
116  Pac.  680.  All  the  statutory  provisions 
on  the  subject  of  the  statute  of  limitations 
are    to    be    considered    together    and    con- 


strued in  view  of  the  presumption  that  the 
legislators  are  acfpiainted  with  well-settled 
principles  of  law,  and  that  they  legislate 
with  reference  thereto.  Pryor  v.  Winter, 
147  CaL  554;  109  Am.  St.  Rep.  162;  82  Pac. 
202. 

Actions  to  enforce  stockholders'  liabil- 
ity.    See  note  ante,  §  338. 

Limitation  of  actions  against  stockholders  or 
corporate  officers.    Stf  note  96  .Am.   St.   lie  p.  9":!. 

Limitation  of  action  to  enforce  stockholder's 
statutory  liability.    .See  note  3  .Vnn.  ('as.  .'iO.'>. 

Accrual  of  right  of  action  to  put  statute  of 
limitations  into  operation  as  to  stockholder's  lia- 
bility for  corporate  debts.  See  note  10  L.  K.  A. 
(N.    S.)    897. 

CODE  C0MMI3SI0NERS'  NOTE.  Stats.  18.50, 
p.  343. 


§  360.  AcknowledgTiient  or  new  promise  must  be  in  writing.  No  ac- 
knowledgment or  promise  is  sufficient  evidence  of  a  new  or  continuing  con- 
tract, by  which  to  take  the  case  out  of  the  operation  of  this  title,  unless  the 
same  is  contained  in  some  writing,  signed  by  the  party  to  be  charged  thereby. 

however   (Sanford  v.  Bergin,   156  Cal.  43; 


Legislation  §  360.  Enacted  March  11,  1873; 
based  on  Stats.   1850,  p.  343. 

New  or  continuing  contract.  The  con- 
sideration for  a  new  promise  is  the  original 
contract,  or  the  moral  obligation  arising 
thereon,  binding  in  foro  conscientis,  not- 
withstanding the  bar  of  the  statute  (Mc- 
Cormick  v.  Brown,  36  Cal.  180;  95  Am.  Dec. 
170;  Chabot  v.  Tucker,  39  Cal.  434;  Wells 
v.  Harter,  56  Cal.  342;  Curtis  v.  Sacra- 
mento, 70  Cal.  412;  11  Pac.  748;  Concan- 
non  V.  Smith,  134  Cal.  14;  66  Pac.  40),  and 
it  is  this  new  contract  that  gives  the  right 
to  recover.  Wells  v.  Harter,  56  Cal.  342. 
There  is  a  distinction  to  be  observed,  where 
the  acknowledgment  or  new  promise  is 
made  after  maturity  and  before  the  bar 
of  the  statute,  and  where  it  is  made  after 
the  bar  has  intervened;  in  the  former  case, 
the  action  is  upon  the  original  contract, 
the  bar  of  the  statute  having  been  lifted 
and  removed  (McCormick  v.  Brown,  36 
Cal.  180;  95  Am.  Dec.  170;  Chaffee  v. 
Browne,  109  Cal.  211;  41  Pac.  1028;  South- 
ern Pacific  Co.  V.  Prosser,  122  Cal.  413; 
52  Pac.  836;  55  Pac.  145;  Rodgers  v.  Byers, 
127  Cal.  528;  60  Pac.  42);  in  the  latter 
case,  the  action  is  upon  the  new  promise. 
Rodgers  v.  Byers,  127  Cal.  528;  60  Pac.  42; 
Coneannon  v.  Smith,  134  Cal.  14;  66  Pac. 
40.  The  action  must  be  brought  upon  the 
original  promise  or  contract,  where  the  ac- 
Icnowledgment  or  new  promise  is  made 
before  the  bar  of  the  statute  (Southern 
Pacific  Company  v.  Prosser,  122  Cal.  413; 
52  Pac.  836;  55  Pac.  145);  but  under  the 
new  promise,  where  made  after  the  bar 
has  intervened.  McCormick  v.  Brown,  36 
Cal.  180;  95  Am.  Dec.  170;  Chaffee  v. 
Browne,  109  Cal.  211;  41  Pac.  1028;  South- 
ern Pacific  Co.  V.  Prosser,  122  Cal.  413;  52 
Pac.  836;  55  Pac.  145;  Rodgers  v.  Byers, 
127  Cal.  528;  60  Pac.  42;   Sanford  v.  Ber 


103  Pac.  333),  unless  the  statute  has  not 
run  before  the  promise.  President  and 
Board  of  Trustees  v.  Stephens,  11  Cal. 
App.  523;  105  Pac.  614.  The  action  upon 
the  new  promise  must  be  commenced 
within  four  years  from  the  date  of  the 
new  promise.  McCormick  v.  Brown,  36  Cal. 
180;  95  Am.  Dec.  170;  Rodgers  v.  Byers, 
127  Cal.  528;  60  Pac.  42.  The  new  prom- 
ise, to  revive  the  cause  of  action,  must 
contain  an  acknowledgment  from  which 
the  law  will  imply  a  promise  to  pay,  and 
be  a  direct  and  unqualified  admission  of 
an  existing  debt.  Visher  v.  Wilbur,  5  Cal. 
App.  562;  90  Pac.  1065;  91  Pac.  412; 
President  and  Board  of  Trustees  v.  Ste- 
phens, 11  Cal.  App.  523;  105  Pac.  614. 

Acknowledgment  or  new  promise  must 
be  in  writing.  To  take  the  debt  out  of  the 
bar  of  the  statute,  or  to  lift  or  remove  the 
bar,  the  acknowledgment  must  be  in  writ- 
ing. Pefia  v.  Vance,  21  Cal.  142;  Heinlin  v. 
Castro,  22  Cal.  100;  Porter  v.  Elam,  25  Cal. 
291,  292;  85  Am.  Dec.  132;  Estate  of  Gal- 
vin,  51  Cal.  215;  Biddel  v.  Brizzolara,  56 
Cal.  374;  Booth  v.  Hoskins,  75  Cal.  271; 
17  Pac.  225;  Pierce  v.  Merrill,  128  Cal. 
473;  79  Am.  St.  Rep.  63;  61  Pac.  67; 
Higgins  V.  Graham,  143  Cal.  131;  76  Pac. 
898.  Oral  promises  are  not  suflScient  to 
take  the  case  out  of  the  two-year  limita- 
tion. Rose  v.  Foord,  3  Cal.  Unrep.  438;  28 
Pac.  229.  A  rehearing  was  denied  in  Rose 
v.  Foord,  96  Cal.  152,  30  Pac.  1114,  holding 
that  no  new  cause  of  action  arises  to  re- 
cover the  purchase-money  until  demand 
made,  and  that  the  statute  does  not  com- 
mence to  run  until  then.  To  revive  a 
claim  barred  by  the  statute,  a  writing  is 
essential,  and  it  must  contain  either  an 
express  or  an  implied  promise  to  pay  an 
existing  debt;  in  the  absence  of  an  express 


gin,  156  Cal.  43;  103  Pac.  333.  The  new  promise,  the  acknowledgment  must  t»e  un- 
promise  to  pay  the  debt  does  not  revive  equivocal,  and  must  contain  a  direct  and 
the  lien  of  the  mortgage  which  secures  it,       unqualified  admission  of  an  existing  debt 


§360 


geneeaij  provisions  as  to  time  op  commencing  actions. 


208 


for  which  the  party  is  liable,  and  which  he 
is  willing  to  par.  Visher  v.  Wilbur,  5  Cal. 
App.  562;  90  Pac.  1065;  91  Pac.  412.  A 
mortgage  barred  by  the  statute  is  not  re- 
newed by  a  renewal  of  the  note  (Wells  v. 
Harter,  56  Cal.  342;  Southern  Pacific  Co. 
V.  Prosser,  122  Cal.  413;  52  Pac.  836;  55 
Pac.  145;  Biddel  v.  Brizzolara,  56  Cal. 
374);  nor  is  the  oral  settlement  of  an  ac- 
count sufficient  to  take  items  out  of 
the  statute,  where  it  is  already  barred. 
Auzerais  v.  Na2;lee,  74  Cal.  60;  15  Pac. 
371;  Kahn  v,  Edwards,  75  Cal.  192;  7  Am. 
St.  Eep.  141;  16  Pac.  779;  Baird  v.  Crank, 
98  Cal.  293;  33  Pac.  63.  An  acknowledg- 
ment of  a  debt  operates  to  start  a  new 
period  of  limitation.  Moore  v.  Gould,  151 
Cal.  723;  91  Pac.  616.  There  is  that  sort 
of  an  implied  acknowledgment,  that  may 
be  inferred  in  the  case  of  every  ofi'er  or 
promise,  that  the  amount  offered  or  prom- 
ised tu  be  paid  is  or  will  become  due;  but 
it  is  not  the  aclNiiowledgment  required  by 
the  statute,  and  it  is  of  no  avail  to  the  plain- 
tiff, because  uo  promise  arises  therefrom 
by  implication;  it  would  be  illogical  to 
infer  from  any  offer  or  promise  to  pay  a 
given  sum  of  money  upon  the  original  con- 
tract, an  acknowledgment,  or  to  infer  a 
promise  more  ■  comprehensive  than  that 
from  which  the  acknowledgment  was  im- 
plied; an  offer  or  promise  to  pay  a  certain 
sum,  or  to  deliver  any  article  of  value  at 
a  specified  time,  in  satisfaction  of  the 
original  debt  upon  which  the  statute  has 
run,  cannot,  by  this  inverse  implication,  be 
construed  as  evidence  of  a  promise  to  pay 
the  whole  debt,  without  a  plain  perversion 
of  the  meaning  and  intention  of  the  provis- 
ion of  the  statute.  McCormick  v.  Brown, 
36  Cal.  180;  95  Am.  Dec.  170.  An  exten- 
sion of  time  for  the  payment  of  a  debt, 
signed  by  the  payee,  raises  an  estoppel  to 
plead  the  statute.  Quanchi  v.  Ben  Lomond 
Wine  Co.,  17  Cal.  App.  565;  120  Pac.  427. 

Signed  by  the  party  to  be  charged.  The 
writing  must  be  signed  by  the  debtor  (Es- 
tate of  Galvin,  51  Cal.  215;  Borland  v. 
Borland,  66  Cal.  189;  5  Pac.  77);  and  it  is 
not  sufficient,  unless  so  signed.  Baird  v. 
Crank,  98  Cal.  293;  33  Pac.  63.  A  sub- 
scription by  the  debtor  is  not  necessary,  if 
it  is  evident,  from  any  part  of  the  instru- 
ment or  acknowledgment,  that  the  debtor 
Qamed  in  it  has  given  to  it  his  assent;  and 
if  an  attestation  appears  anywhere  upon 
the  face  of  the  writing,  it  is  sufficient,  and 
the  party  thus  attesting  is  bound  as  effec- 
tually as  if  he  had  subscribed  his  name  at 
the  foot  (Auzerais  v.  Naglee,  74  Cal.  60; 
15  Pac.  371);  but  the  written  acknowledg- 
ment or  new  promise  must  be  a  distinct, 
direct,  unqualified,  and  unconditional  ad- 
mission of  the  existence  of  the  debt  for 
which  the  party  is  liable  and  willing  to 
pay.  McCormick  v.  Brown,  36  Cal.  180; 
95  Am.  Dec.  170;  FarrL'll  v.  Palmer,  36  Cal. 
187;  Biddel  v.  Brizzolara,  56  Cal.  374; 
Southern   Pacific   Co.  v.  Prosser,   122   Cal. 


413;  52  Pac.  836;  55  Pac.  145;  Pierce  v. 
Merrill,  128  Cal.  473;  79  Am.  St.  Rep.  63; 
61  Pac.  67;  Curtis  v.  Sacramento,  70  Cal. 
412;  11  Pac.  748.  The  purpose  of  this  sec- 
tion is,  to  establish  a  rule,  not  with  respect 
to  the  character  of  the  promise  or  ac- 
knowledgment from  which  the  promise 
may  be  inferred,  but  with  respect  to  the 
kind  of  evidence  by  which  the  promise  or 
acknowledgment  shall  be  proved.  Biddel 
V.  Brizzolara,  56  Cal.  374;  Tuggle  v.  Minor, 
76  Cal.  96;  18  Pac.  131.  This  statute  does 
not  purport  to  make  any  changes  in  the 
effect  of  acknowledgments  or  promises,  but 
simply  to  alter  the  mode  of  their  proof. 
Barron  v.  Kennedy,  17  Cal.  574;  Concannon 
V.  Smith,  134  Cal.  14;  66  Pac.  40.  An 
acknowledgment  by  one  joint  obligor  is  not 
available  to  take  the  debt  out  of  the  bar 
of  the  statute  as  to  the  others,  unless  made 
with  their  authority.  McCarthy  v.  White, 
21  Cal.  495;  82  Am.  Dec.  754;  Lord  v.  Mor- 
ris, 18  Cal.  482.  Where  there  is  but  one 
debt  or  obligation,  an  acknowledgment  and 
promise,  otherwise  sufficient,  to  pay  "our 
indebtedness,"  is  sufficient  under  this  sec- 
tion. Belloc  V.  Davis,  38  Cal.  242.  A 
promise  to  pay  is  raised  by  implication  of 
law  from  an  unqualified  acknowledgment 
(Biddel  v.  Brizzolara,  56  Cal.  374) ;  but  if 
the  acknowledgment  is  accompanied  by 
such  qualifying  expressions  or  circum- 
stances as  repel  the  idea  of  a  contract  to 
pay,  excejit  to  the  extent  or  upon  the  con- 
ditions named,  no  implied  promise  to  pay 
absolutely  is  created.  Biddel  v.  Brizzolara, 
56  Cal.  374;  Curtis  v.  Sacramento,  70  Cal. 
412;  11  Pac.  748.  The  positive  acknowl- 
edgment of  a  pre-existing  debt  is  insuffi- 
cient, if  accompanied  by  a  declaration 
which  is  inconsistent  with  an  intention  to 
pay  (Curtis  v.  Sacramento,  70  Cal.  412;  11 
Pac.  748;  McCormick  v.  Brown,  36  Cal. 
ISO;  95  Am.  Dec.  170);  but  a  suggestion  of 
a  new  mode  of  payment,  as  in  work,  not 
being  made  as  a  condition  to  the  acknowl- 
edgment, does  not  have  the  effect  of 
impairing  the  effect  of  the  admission. 
Southern  Pacific  Co.  v.  Prosser,  122  Cal. 
413;  52  Pac.  836;  55  Pac.  145.  An  agree- 
ment not  to  plead  the  statute  of  limitations 
comes  equally  within  the  statute  (Wells 
Fargo  &  Co.  v.  Enright,  127  Cal.  669;  49 
L.  E.  A.  647;  60  Pac.  439;  State  Loan  etc. 
Co.  V.  Cochran,  130  Cal.  245;  62  Pac.  466, 
600) ;  and  an  agreement  not  to  sue  is  suffi- 
cient consideration  to  support  an  agree- 
ment not  to  plead  the  statute.  Smith  v. 
Lawrence,  38  Cal.  24;  99  Am.  Dec.  344; 
Belloc  V.  Davis,  38  Cal.  242;  Frey  v. 
Clifford,  44  Cal.  335;  Wells  Fargo  &  Co 
v.  Enright,  127  Cal.  669;  49  L.  R.  A.  647; 
60  Pac.  439;  State  Loan  etc.  Co.  v.  Cochran,. 
130  Cal.  245;  62  Pac.  466,  600.  An  ac 
knowledgment  of  the  indebtedness  need 
not  specify  the  amount.  Curtis  v.  Sacra- 
mento, 70  Cal.  412;  11  Pac.  743.  The 
report  of  a  board  of  arbitration  binds  a 
corporation,  the  by-laws  of  which  provide 


209 


ACKNOWLEDGMENT  OR  NEW  PROMISE    MUST  BE  IN  WRITING. 


360 


for  such  a  body;  and  it  is  not  necessary 
that  such  report  be  signed  by  the  corpora- 
tion, to  take  the  debt  out  of  the  statute. 
Dearborn  v.  Grand  Lodge,  138  Cal.  658;  72 
Pac.  154.  Where  a  party  relies  upon  an 
acknowledgment  or  new  promise  to  take 
the  debt  out  of  the  bar  of  the  statute,  he 
must  plead  it.  Smith  v.  Eichmond,  19  Cal. 
476.  An  allegation  that  the  defendant  has 
acknowledged  and  has  promised  to  pay  is 
a  sufficient  allegation  of  the  signature  of 
the  defendant.  Porter  v.  Elam,  25  Cal. 
291;  85  Am.  Dec.  132. 

To  whom  made.  When  the  acknowledg- 
ment is  made  by  an  agent  of  a  corpora- 
tion, it  does  not  bind  him  in  his  individual 
capacity  (Pierce  v.  Merrill,  128  Cal.  473; 
79  Am.  St.  Eep.  63;  61  Pac.  67);  but  an 
acknowledgment  by  an  executrix,  who  has 
a  personal  interest  in  the  estate  of  her 
deceased  husband,  and  who  gives  her  own 
note  for  an  outlawed  debt,  is  founded  upon 
a  sufficient  consideration.  Mull  v.  Van 
Trees,  50  Cal.  547.  The  acknowledgment 
or  promise  must  be  made  to  the  creditor, 
and  not  to  a  stranger  (Biddel  v.  Brizzo- 
lara,  56  Cal.  374;  President  and  Board  of 
Trustees  v.  Stephens,  11  Cal.  App.  523;  105 
Pac.  614;  Kounthwaite  v.  Eounthwaite,  6 
Cal.  Unrep.  878;  68  Pac.  304);  it  may, 
however,  be  made  to  one  known  to  be  the 
agent  or  legal  representative  of  the  cred- 
itor (President  and  Board  of  Trustees  v. 
Stephens,  11  Cal.  App.  523;  105  Pac.  614); 
and  where  made  to  the  administrator  of 
the  estate  of  a  creditor,  it  is  valid,  and 
inures  to  the  benefit  of  the  estate  (Farrell 
V.  Palmer,  36  Cal.  187);  and  au  iudorser 
of  a  note,  to  whom  it  is  afterwards  trans- 
ferred, is  entitled  to  rely  upon,  and  he  has 
the  benefit  of,  the  acknowledgment  or  new 
promise  made  to  the  former  holder.  Smith 
V.  Eichmond.  19  Cal.  476. 

Form  of  acknowledgment  or  promise. 
The  statute  does  not  prescribe  any  form 
in  which  an  acknowledgment  or  promise 
shall  be  made;  the  imperative  thing  is,  that 
it  shall  be  "contained  in  some  writing, 
signed  by  the  party  to  be  charged  thereby," 
this  expression  clearly  indicating  that  it  is 
not  essential  that  the  acknowledgment  or 
promise  shall  be  formal;  and  it  is  sufficient 
if  it  shows  that  the  writer  regards  or  treats 
the  indebtedness  as  subsisting  (Coueannou 
V.  Smith,  134  Cal.  14;  66  Pac.  40;  Worth 
V.  Worth,  155  Cal.  599;  102  Pac.  663);  nor 
need  it  be  made  in  express  words,  but  it 
may  be  implied  from  any  act  or  statement 
which  necessarily  and  directly  admits  or 
presupposes  the  existence  of  and  the  obli- 
gation to  pay  a  debt.  Tuggle  v.  Minor,  76 
Cal.  96;  18  Pac.  131. 

When  made.  It  may  be  made  either  be- 
fore or  after  the  bar  of  the  statute  has 
intervened;  if  before,  the  action  is  on  the 
original  contract;  if  after,  it  is  on  the  new 
promise.  President  and  Board  of  Trustees 
V.  Stephens,  11  Cal.  App.  523;  105  Pac, 
1  Fair. — 14 


614.  The  effect  of  the  acknowledgment 
before  the  bar  of  the  statute,  is  to  continue 
the  liability  until  the  expiration  of  the 
statutory  time  thereafter.  National  Cycle 
Mfg.  Co.  v.  San  Diego  Cycle  Co.,  9  Cal. 
App.  Ill;  98  Pac.  64. 

A  sufficient  acknowledgment.  The  fol- 
lowing have  been  held  sufficient:  Letters 
of  a  liquidating  partner,  acknowledging 
payment  of  partnership  claim,  and  promis- 
ing to  remit  (Osment  v.  McElrath,  68  Cal. 
466;  58  Am.  Eep.  17;  9  Pac.  731;  Ashley 
V.  Vischer,  24  Cal.  322;  85  Am.  Dec.  65; 
Farrell  v.  Palmer,  36  Cal.  187);  a  letter 
written  to  a  creditor  by  his  debtor,  after 
maturity  of  the  debt,  but  before  the  inter- 
vening of  the  bar  of  the  statute,  referring 
specifically  to  the  debt,  and  offering  to 
pay  in  work  (Southern  Pacific  Co.  v.  Pros- 
ser,  122  Cal.  413;  52  Pac.  836;  55  Pac.  145) ; 
the  payment  of  interest  upon  the  debt 
(Barron  v.  Kennedy,  17  Gal.  574);  but  a 
memorandum  for  the  payment  of  the  pur- 
chase price  of  land,  signed  by  the  cred- 
itor, but  not  by  the  debtor,  although  acted 
upon  by  him,  is  not  sufficient,  under  the 
statute,  net  being  signed  by  the  party  to 
be  charged.  Pena  v.  Vance,  21  Cal.  142. 
A  release,  signed  by  the  mortgagee,  of  a 
part  of  the  encumbered  premises,  which 
refers  to  the  indebtedness,  constitutes  an 
acknowledgment,  and  stops  the  running  of 
the  statute.  Chaffee  v.  Browne,  109  Cal. 
211;  41  Pac.  1028.  The  acknowledgment, 
in  a  letter,  of  a  mortgage  indebtedness,  is 
sufficient  to  take  the  ease  out  of  the  opera- 
tion of  the  statute.  Worth  v.  Worth,  155 
Cal.  599;   102  Pac.  663. 

Effect  of  request  not  to  sue.  By  a  re- 
quest for  forbearance  to  sue,  the  debtor 
will  be  estopped  to  plead  the  statute. 
State  Loan  etc.  Co.  v.  Cochran,  130  Cal. 
245;  62  Pac.  466,  600. 

Part  payment.  The  payment  of  a  part 
of  the  debt  or  obligation,  either  of  the 
principal  or  interest,  is  an  acknowledgment 
thereof,  and  takes  it  out  of  the  bar  of  the 
statute  (Barron  v.  Kennedy,  17  Cal.  574); 
but  such  part  payment  must  be  evidenced 
by  writing,  complying  with  the  require- 
ments of  this  section.  Fairbanks  v.  Daw- 
son, 9  Cal.  89;  Lord  v.  Morris,  18  Cal.  482; 
Peria  v.  Vance,  21  Cal.  142;  McCarthy 
v.  White,  21  Cal.  495;  82  Am.  Dec.  754; 
Heinlin  v.  Castro,  22  Cal.  100. 

What  is  acknowledgment  of  ezisting  liability. 
See  noti'  40   Am.  Kep.    160. 

Acknowledgment  of  debt  made  to  stranger. 
See   Tiote   57   Am.   Rep.    334. 

Acknowledgment  sufficient  to  take  debt  out  of 
statute.  See  notes  62  Am.  Dec.  101;  35  Am. 
Rep.  317;  36  Am.  Rep.  197;  58  Am.  Rep.  749; 
102  Am.   St.  Rep.   752. 

Acknowledgment  or  new  promise  by  one  Joint 
debtor.  See  notes  10  Am.  Dec.  695;  17  Ann. 
Cas.  176. 

Payment  of  dividend  by  assignee  of  dettor  does 
not  take  debt  out  of  statute  of  limitations.  See 
note    32    Am.    Rep.    401. 

Indorsement  of  payment  on  promissory  note  by 
holder  as  sufficient  proof  of  part  payment  to  stop 


§361 


GENERAL  PROVISIONS  AS   TO   TIME   OF    COMMENCING   ACTIONS. 


210 


running  of  statute  of  limitations.  See  note  Ann. 
Cas.  1913A,  1223. 

Part  payment  by  joint  debtor  as  suspending 
running  of  statute  of  limitations  to  joint  obligors 
not  authorizing  or  ratifying  such  act.  See  note 
Ann.   fas.    1912D,    1328. 

Payment  on  barred  debt  as  reviving  lien  of 
barred  mortgage  given  to  secure  debt.  See  note 
Ann.   Cas.    1912B,  508. 

Written  promise  or  acknowledgment  relied  on 
to  take  case  out  of  statute  of  limitations  as  aided 
by  other  writings.    See  note  12  Ann.  Cas.  811. 

Person  to  whom  new  promise  must  be  made  to 
remove  bar  of  limitations.  See  notes  5  Ann.  Cas. 
.811;  19  Ann.  Cas.  103;  25  L.  R.  A.  (N.  S.)  805; 
33  L.  K.  A.    (N.  S.)    262. 

Part  payment  in  full  satisfaction  of  debt  as 
removing  bar  of  statute  of  limitations  as  to  part 
not  paid.    See  note  14  Ann.  Cas.  213. 

Giving  check,  bill  or  note  as  part  payment  or 
collateral  security,  as  starting  limitations  run- 
ning anew.  See  notes  15  Ann.  Cas.  332;  18 
L.  K.  A.   (X.  S.)   223;  35  L.  R.  A.   (N.  S.)   97. 

Removal  of  bar  of  limitations  against  action  ex 
delicto  by  new  promise.  See  notes  11  Ann.  Cas. 
180;   13  L.  R.  A.    (N.   S. )   912. 

Application  of  undirected  payment  to  creditor 
ioldiug  several  barred  claims  as  revival  of  any 
of  them.  See  notes  14  Ann.  Cas.  56;  13  L.  R.  A. 
{N.  S.)  1141. 

Effect  of  new  promise  or  part  payment  to  re- 
vive judgment  or  judgment  debt.  See  notes  9 
Ann.  Cas.  254;   8  L.  K.  A.    (N.  S.)   440. 

Application  of  proceeds  of  foreclosed  security 
as  part  payment  sufficient  to  revive  barred  note. 
See  notes  14  Ann.  Cas.  980;  14  L.  R.  A.  (N.  S.) 
479. 

Revival  of  barred  debt  by  application  of  gen- 
eral payment.  See  notes  14  L.  R.  A.  208;  13 
L.  R.  A.   (N.  S.)    1141. 

New  promise  after  bar.  See  note  53  L.  R.  A. 
362. 

Promise  to  pay  as  soon  as  one  can.  See  note 
27  L.  R.  A.   (N.  S.)   300. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1850, 
p.  343. 

1.  New  promise  to  be  in  writing.  At  an  early 
period  after  the  passage  of  the  English  statute  of 
limitations  (21  James  I,  ch.  16),  an  impres- 
sion prevailed  that  the  statute  was  not  to  be 
favored;  and,  accordingly,  a  very  slight  acknowl- 
edgment, proved  by  as  slight  testimony,  was 
permitted  to  overcome  the  statute.  Parsons'  Mer- 
cantile Law,  p.  233;  Dunham  v.  Dodge,  10  Barb. 
(X.  Y.)  568.  But  the  modern  cases  upon  this  sub- 
ject have  established  the  rule,  that,  to  take  a  case 
out  of  the  operation  of  the  statutes,  there  must 
have  been  either  an  express  promise  to  pay,  or 
an  admission  of  the  debt,  in  terms  so  distinct  as 
that  a  promise  might  reasonably  be  inferred 
therefrom.  If,  however,  the  admission  was  ac- 
companied by  qualifying  words,  then  it  would 
not  amount  to  a  promise.  Chitty  on  Contracts, 
pp.  712-714.  The  object  of  our  statute  was  to 
change  a  rule  of  evidence,  and  now  to  require 
•written  where  verbal  testimony  was  formerly 
sufficient.  The  matter  to  be  proved  is  the  ac- 
knowledgment or  promise,  and  the  only  compe- 
tent evidence  is  a  writing  signed  by  the  party 
to  be  charged.  But  whether  the  acknowledgment 
or  promise  will,  when  proved,  be  sufficient  to 
take  the  case  out  of  the  operation  of  the  act,  is 
left  to  depend  upon  reason  and  authority,  as  it 
did  before.  28  Eng.  C.  L.  R.  82;  Fairbanks  v. 
Dawson,  9  Cal.  91.  See  also  Barron  v.  Kennedy, 
17  Cal.  574.  commenting  on  Fairbanks  v.  Daw- 
son. 9  Cal.  89;  and  as  to  effect  of  part  payments 
and  proof  of  acknowledgment  of  debt,  see  these 
cases  ccimniented  on.  and  Fairbanks  v.  Dawson, 
supra,  affirmed,  in  Peiia  v.  Vance,  21  Cal.  142. 
See  further,  Heinlin  v.  Castro,  22  Cal.  100;  Por- 
ter v.  Elam,  25  Cal.  291  ;  85  Am.  Dec.  132. 


2.  Promise  must  be  in  writing.  Where  a 
memorandum-book  was  kept  by  plaintiff  and  a 
passbook  by  defendant,  and  these  books  were 
compared,  the  account  found  to  be  correct,  and 
so  acknowledged  orally  by  the  defendant,  yet  it 
did  not  take  the  case  out  of  the  statute  as  de- 
lined  bv  this  section.  Weatherwax  v.  Cosumnes 
Valley  Mill  Co.,  17  Cal.  344.  The  party  to  be 
charged  must  sign  his  name  to  the  writing.  Pefia 
V.  Vance.  21  Cal.  142. 

3.  Effect  of  statute  of  limitations.  The  stat- 
ute of  limitations  does  not  extinguish  a  debt 
nor  raise  a  presumption  of  its  payment.  It  only 
bars  the  remedy,  and  thus  becomes  a  statute  of 
repose.  McCormick  v.  Brown,  36  Cal.  180;  95 
Am.  Dec.  170. 

4.  New  promise.  Nature  of  action  on  cause 
that  is  barred  by  the  statute.  When  a  creditor 
sues  after  the  statute  has  run  upon  the  original 
contract,  his  cause  of  action  is  not  founded  upon 
the  original  contract,  but  on  the  new  promise ; 
the  moral  obligation  arising  upon  the  original 
contract  being  a  sufficient  consideration  for  a 
new  promise.  McCormick  v.  Brown,  36  Cal.  180; 
95  Am.  Dec.  170. 

5.  Nature  of  the  contract  resulting  from  mak- 
ing the  statutory  acknowledgment  on  new  promise. 
Under  the  statute  of  limitations,  there  are  two 
ultimate  facts  that  may  be  proved  in  the  mode 
therein  prescribed:  a  continuing  contract  and  a 
new  contract.  The  statutory  acknowledgment  or 
promise,  if  made  while  the  original  contract  is  a 
subsisting  liability,  establishes  a  continuing  con- 
tract; while,  if  made  after  the  bar  of  the  statute, 
a  new  contract  is  created.  McCormick  v.  Brown, 
36  Cal.  180;  95  Am.  Dec.  170. 

6.  Limitation  of  action  on  new  promise  to  pay 
judgment.  An  action  on  a  new  promise  to  pay 
a  judgment,  so  as  to  avoid  the  bar  of  the  statute, 
must  be  brought  within  four  years  from  the  mak- 
ing of  the  new  promise.  McCormick  v.  Brown,  36 
Cal.  180;  95  Am.  Dec.  170. 

7.  New  promise  necessary  to  support  action  on 
cause  that  is  barred.  A  creditor  cannot  recover 
after  the  statute  has  run  upon  the  original  con- 
tract or  obligation,  without  a  new  promise.  Mc- 
Cormick V.  Brown,  36  Cal.  180;  95  Am.  Dec.  170. 

8.  Nature  of  new  promise.  The  new  promise 
may  be  either  express  or  implied.  An  e.\press 
promise  can  only  be  established  by  producing  the 
promise  itself,  in  the  form  prescribed  by  this 
section :  while  an  implied  promise  can  only  be 
established  by  the  production,  in  like  form,  of 
the  acknowledgment  prescribed  in  this  section. 
McCormick  v.  Brown,  36  Cal.  180;  95  Am.  Dec. 
170. 

9.  Nature  and  scope  of  acknowledgment.  An 
acknowledgment,  within  the  statute,  to  support 
an  implied  promise,  must  be  a  direct,  distinct, 
unqualified,  and  unconditional  admission  of  the 
debt  which  the  party  is  liable  and  willing  to 
pay.  Such  acknowledgment  cannot  be  deduced 
from  an  offer  or  promise  to  pay  any  part  of  the 
debt,  or  the  whole  debt  in  a  particular  manner, 
or  at  a  specified  time,  or  upon  specified  condi- 
tions. McCormick  v.  Brown,  36  Cal.  180;  95  Am 
Dec.  170. 

10.  Terms  of  express  promise.  An  express 
promise,  to  be  available  to  the  creditor,  must  be 
either  direct,  certain,  and  unconditionally  a  speci- 
fied part  of  the  debt,  or  a  like  offer,  upon  speci- 
fied conditions  as  to  either  time  or  manner,  or 
both,  to  pay  the  whole  or  some  part  of  the  debt, 
or  a  direct  conditional  promise  to  pay  the  whole 
or  a  specified  part  of  the  debt;  but  in  case  of 
such  offer  or  conditional  promise,  the  creditor 
can  only  recover  by  showing  an  acceptance  by 
him  of  the  otTer  as  made,  or  a  performance,  on 
his  part,  of  the  prescribed  conditions  of  the 
promise.  McCormick  v.  Brown,  36  Cal.  180;  95 
Am.  Dec.  170. 

11.  New  promise  generally.  See  Farrell  v.  Pal- 
mer, 36  C:il.  187;  also  Chabot  v.  Tucker,  39  Cal. 
434,  and  authorities  there  cited. 


§  361.  Limitation  laws  of  other  states,  effect  of.  When  a  cause  of  action 
has  arisen  in  another  state,  or  in  a  foreign  country,  and  by  the  laws  thereof 
an  action  thereon  cannot  there  be  maintained  against  a  person  by  reason 
of  the  lapse  of  time,  an  action  thereon  shall  not  be  maintained  against  him 


211 


ACTIONS   BEGUN    NOT   AFFECTED — SPECIAL    PROCEEDING.       §§362,363 


in  this  state,  except  in  favor  of  one  who  has  been  a  citizen  of  this  state,  and 
wlio  has  held  the  cause  of  action  from  the  time  it  accrued. 

secured  by  mortgage,  bars  a  foreclosure 
of  the  mortgage  in  this  state.  Lilly-Brack- 
ett  Co.  V.  Sonnemaun,  157  Cal.  192;  21 
Ann.  Cas.  1279;  106  Pac.  71.5.  The  law  of 
a  foreign  jurisdiction,  with  reference  to 
the  statute  of  limitations,  is  presumed  to 
be  the  same  as  the  law  of  this  state.  Van 
Buskirk  v.  Kuhns,  164  Cal.  472;  129  Pac. 
587. 

Pleading  statute.  The  method  of  plead- 
ing this  section  is  the  same  as  that  in 
pleading  other  sections  of  the  statute  of 
limitations.  Allen  v.  Allen,  95  Cal.  184; 
16  L.  R.  A.  646;  30  Pac.  213.  Where  the 
foreign  land  is  a  part  of  the  statute  of 
limitations,  it  is  sufficiently  pleaded  by 
an  allegation  that  the  action  is  barred 
by  the  provisions  of  this  section.  Lilly- 
Brackett  Co.  v.  Sonnemann,  157  Cal.  192; 
21  Ann.  Cas.  1279;   106  Pac.  715. 


Legislation «  361.  Enacted  March  11,  1872: 
based,  according  to  the  commissioners,  on  Stats. 
1852,  p.  161,  which  read,  "When  the  cause  of 
action  has  arisen  in  another  state  or  a  territory 
of  the  United  States,  or  in  a  foreign  country, 
and  by  the  laws  thereof  an  action  thereon  can- 
not there  be  maintained  against  a  person  by 
reason  of  the  lapse  of  time,  no  action  thereon 
shall  be  maintained  against  him  in  this  state"  ; 
but  it  is  in  the  language  of  Practice  Act,  §  532, 
except  that  the  words  "one  who  has  been  a  citi- 
zen of  this  state,  and"  are  substituted  for  "a 
citizen  thereof." 

Effect  of  law  of  other  states.  This  sec- 
tion refers  to  the  primary  and  original 
jurisdiction  in  which  the  cause  of  action 
arose,  independently  of  the  whereabouts 
of  the  maker  at  the  maturity  thereof. 
McKee  v.  Dodd,  152  Cal.  637;  125  Am.  St. 
fiep.  82;  14  L.  R.  A.  (N.  S.)  780;  93  Pac. 
854.  A  citizen  of  this  state  may  maintain 
an  action  on  a  judgment  recovered  in  an- 
other state,  of  which  he  has  held  the  cause 
of  action  from  the  time  it  accrued,  al- 
though such  an  action  is  barred  by  the 
statute  where  rendered.  Stewart  v.  Spauld- 
ing,  72  Cal.  264;  13  Pac.  661.  The  bar  of 
an    action,   in   a   foreign   state,    on    a   note 


Whether  demands  barred  by  law  of  county 
where  they  originate  are  barred  elsewhere.  See 
note  22   Am.   Dec.   :'G2. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1852, 
p.   161;    Nelson  v.  Nelson,   6  Cal.  430. 


§  362.  Existing  causes  of  action  not  affected.  This  title  does  not  extend 
to  actions  already  commenced,  nor  to  cases  where  the  time  prescribed  in  any 
existing  statute  for  acquiring  a  right  or  barring  a  remedy  has  fully  run, 
but  the  laAvs  now  in  force  are  applicable  to  such  actions  and  cases,  and  are 
repealed  subject  to  the  provisions  of  this  section. 

Repeal  of  limitation.    See  ante,  §§9,  18.  constitutional.    See  note  ante,  §  5. 

NOTE.     See     also 


Legislation  §  362.     1.  Enacted  March  11,  1873. 
3.   Amendment    by    Stats.    1901,    p.    125;    un- 


CODE     COMMISSIONERS' 

§§  5,  9,  ante. 


§363.  "Action"  includes  a  special  proceeding.  The  word  "action"  as 
used  in  this  title  is  to  be  construed,  whenever  it  is  necessary  so  to  do,  as  in- 
cluding a  special  proceeding  of  a  civil  nature. 


Legislation  §  363.      Enacted  April  1,  1873. 

Laches.  The  defense  of  laches  is  differ- 
ent from  the  defense  of  the  statute  of  lim- 
itations which  applies  here.  Cahill  v.  Su- 
perior Court,  145   Cal.  42;   78  Pac.  467. 

Special  proceedings.  Whenever  it  is 
necessary  to  do  so,  the  word  "action,"  as 
used  in  this  title,  is  to  be  construed  as  in- 
cluding   a    special    proceeding    of     a    civil 


nature:  the  application  for  a  writ  of  man- 
date is  a  special  proceeding  of  a  civil 
nature  (Barnes  v.  Gli.le,  117  Cal.  1;  59 
Am.  St.  Rep.  153;  48  Pac.  804;  Jones  v. 
Board  of  Police  Commissioners,  141  Cal. 
96;  74  Pac.  696);  and  so  is  a  probate  pro- 
ceeding.   Estate  of  Crosby,  55  Cal.  574. 

CODE  COMMISSIONERS'  NOTE.     This  section 
was  added  by  act  of  April  1,  1872   [unpublished]. 


§367 


PARTIES  TO   CIVIL  ACTIONS. 


212 


TITLE  III. 
PARTIES  TO  CIVIL  ACTIONS. 


Parties  holding  title  'under  a  common- 
source,  when  may  join. 

Parties  in  interest,  when  to  be  joined. 
When  one  or  more  may  sue  or  defend; 
for  the  whole. 

Plaintiff  may  sue  in  one  action  the  differ- 
ent parties  to  commercial  paper  or  in- 
surance policies. 

Tenants  in  common,  etc.,  may  sever  in- 
bringing   or   defending   actions. 

Action,  when  not  to  abate  by  death,  mar- 
riage, or  other  disability.  Proceedings- 
in  such  case. 

Another  person  may  be  substituted  for- 
the  defendant.  Conflicting  claims,  how- 
made. 

Intervention,  when  it  takes  place,  and. 
how  made. 

Associates  may  be  sued  by  name  of  asso- 
ciation. 

Court,  when  to  decide  controversy  or  to- 
order  other  parties  to  be  brought  in. 

Actions  against  fire  departments. 


§  3C7.    Action  to  be  in  name  of  party  in  interest.        §  381. 
§  368.    Assignment    of    thing    in    action    not    to 

prejudice   defense.  S  382. 

§  369.     Executor,    trustee,    etc.,    may    sue   without 

joining   the   persons    beneficially    inter- 
ested. §  383. 
§  370.     Married  woman  as  party  to  action. 
§  371.     Wife  may  defend,  when. 
§  372.     Appearance    of    infant,    etc.,    by    guardian.         §  384. 

May  compromise. 
§  373.     Guardian,  how  appointed.  §  385. 

§  374.     Unmarried    female   may    sue    for   her   own 

seduction. 
§  375.    Father,    etc.,    may    sue    for    seduction    of        §  386. 

daughter,  etc. 
§  376.     Father,   etc.,  may  sue  for  injury  or  death 

of  child.  §387. 

§  377.     When  representatives   may   sue   for   death 

of   one    caused   by   the   wrongful   act   of         §  388. 

another. 
§378.     Who  may  be  joined  as  plaintiffs. .  §389. 

§  379.     W^ho  may  be  joined  as  defendants. 
§  380.     Parties    defendant   in   an   action   to    deter-         §  390. 

mine  conflicting  claims  to  real  property. 

§  367.  Action  to  be  in  name  of  party  in  interest.  Every  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  except  as  provided  in 
section  three  hundred  and  sixty-nine  of  this  code. 

of  action  against  him  prosecuted  by  the 
real  person  in  interest.  Giselman  v.  Starr,. 
106  Cal.  651;  40  Pac.  8. 

Pleading  statute.  This  objection  is  prop- 
erly taken  by  demurrer,  on  the  ground 
that  it  does  not  state  facts  sufficient  to- 
constitute  a  cause  of  action.  People  v^ 
Haggin,  57  Cal.  579.  Defendant's  objec- 
tion, that  an  action  is  not  brought  in  the- 
name  of  the  real  party  in  interest,  is  with- 
out force,  if  he  can  urge  any  defenses  that 
he  could  make  against  the  real  owner,  and 
if  a  judgment  satisfied  by  the  defendant 
would  protect  him  from  future  annoyance 
or  loss.  Giselman  v.  Starr,  106  Cal.  651; 
40  Pac.  8;  Simpson  v.  Miller,  7  Cal.  App. 
248;  94  Pac.  252.  The  right  of  a  plain- 
tiff to  maintain  an  action  cannot  be  ques- 
tioned, unless  the  defendant  pleads  pay- 
ment or  offset  against  the  person  claiming, 
to  be  the  true  party  in  interest.  Gushee  v. 
Leavitt,  5  Cal.  160;  63  Am.  Dec.  116;  Price- 
V.  Dunlap,  5  Cal.  483. 

Who  is  real  party  in  interest.  The  part\^ 
entitled  to  the  fruits  of  the  action  is  the- 
real  party  in  interest  (Summers  v.  Parish, 
10  Cal.  347);  as  is  also  one  for  whom  a 
contract  is  made.  Western  Development 
Co.  V.  Emery,  61  Cal.  611.  The  person  for 
whose  benefit  a  promise  is  made  by  a  sec- 
ond person  to  a  third  party  is  the  party 
beneficiallv  interested,  and  may  sue.  Wor- 
mouth  V.  Hatch,  33  Cal.  121.  Where  there 
are  distinct  sums  due  distinct  payees,  each- 
payee  is  a  proper  party  plaintiff,  and  can 
maintain  an  action  in  his  individual  name,, 
without  the  authority  of  his  associates. 
Craig  V.  Fry,  68  Cal.  363;  9  Pac.  550.  One 
of   several  parties   jointly  interested   in   a* 


Assignees.    See  post,  §  368. 

Association,  how  may  be  sued.    See  post,  §  388. 
Right  to  sue  on  contract  made  for  one's  bene- 
fit.    See  Civ.   Code,  §  1559. 
Parties  plaintiff,  generally. 

1.  All    persons    interested    may    be    Joined. 
Post,   §§  378,   382. 

2.  If  any  refuse,  they  may  be  made  defend- 
ants.   Post,  §  382. 

Legislation  g  367.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  4.  which  read:  "Every 
action  shall  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  as  otherwise  pro- 
vided in  this  act." 

2.  Amended  by  Code  AJidts.  1880,  p.  63. 

3.  Amendment  by  Stats.  1901,  p.  126;  un- 
constitutional.   See  note  ante,  §  5. 

In  the  name  of  the  real  party  in  interest. 

Actions  must  be  prosecuted  in  the  name  of 
the  real  party  in  interest,  except  as  other- 
wise provided  by  law.  Wiggins  v.  Mc- 
Donald, 18  Cal.  126;  Lucas  v.  Pico,  55  Cal. 
126;  People  v.  Haggin,  57  Cal.  579;  Walsh 
v.  Soule,  66  Cal.  443;  6  Pac.  82;  Craig  v. 
Fry,  68  Cal.  363;  9  Pac.  550;  Woodsum  v. 
Coie,  69  Cal.  142;  10  Pac.  331;  Monterey 
County  V.  Abbott,  77  Cal.  541;  18  Pac.  113; 
20  Pac.  73;  Giselman  v.  Starr,  106  Cal. 
651;  40  Pac.  8.  The  general  rule,  however, 
is  qualified  by  §  369,  post.  Tandv  v. 
Waesch,  154  Cal.  108;  97  Pac.  69;  Oliver 
V.  Walsh,  6  Cal.  456.  An  action  cannot  be 
brought  in  the  name  of  one  other  than  the 
real  party  in  interest,  unless  it  is  one  of 
the  exceptions  to  the  rule  provided  by  stat- 
ute. Dubbers  v.  Goux,  51  Cal.  153.  A 
stranger  to  a  transaction  has  no  right  to 
sue.  Chenery  v.  Palmer,  5  Cal.  131.  A 
plaintiff,  who  is  not  the  real  party  in  in- 
terest, is  not  entitled  to  recover.  Wheatley 
v.  Strobe,  12  Cal.  92;  73  Am.  Dec.  522.  A 
defendant  has   a  right  to   have  the  cause 


213 


ACTION  TO  BE  IN  NAME  OF  PARTY  IN  INTEREST. 


§367 


-cla/im  mav  recover  the  whole  amount  due, 
if  there  is  no  plea  of  necessary  parties 
^plaintiff.  Euss  v.  Tuttle,  158  Cal.  226;  110 
-Pae.  813.  Where  an  injunction  bond  is 
given  to  a  plaintiff  and  others  as  obligees, 
Ihe  plaintiff  alone  may  sue,  where  the 
property  on  which  the  injunction  operated 
was  his  sole  property  and  the  injury  is  to 
him  alone.  Summers  v.  Farish,  10  Cal.  .347. 
An  agent,  in  whose  name  a  deed,  absolute 
in  form,  is  taken  as  security  for  the  debt 
due  the  principal,  is  not  a  necessary  party 
in  an  action  to  have  the  deed  declared  a 
mortgage,  and  foreclosed  (Churchill  v. 
Woodworth,  148  Cal.  669;  113  Am.  St.  Eep. 
324;  84  Pac.  155);  but  the  principal  is  the 
proper  party  to  bring  an  action.  Anglo- 
Calif  ornian  Bank  v.  Cerf,  147  Cal.  384;  81 
Pac.  1077.  Whether  a  judgment,  if  satis- 
fied, would  protect  the  defendant  from 
further  loss  or  annoyance,  is  one  of  the 
tests,  under  this  section,  of  the  real  party 
in  interest.  Simpson  v.  Miller,  7  Cal.  App. 
248;  94  Pac.  252. 

Actions  affecting  public.  A  private  per- 
son has  no  right  to  use  the  name  of  the 
people  in  suing  to  obtain  redress  for 
private  wrongs.  People  v.  County  Judge, 
40  Cal.  479.  Where  there  is  a  statute  re- 
quiring that  it  shall  be  done,  the  people, 
on  the  application  of  the  attorney-general, 
may  bring  an  action  to  compel  a  board  of 
supervisors  to  issue  bonds  for  a  specific | 
purpose  (People  v.  Board  of  Supervisors,! 
50  Cal.  561);  and  a  private  party,  applying 
for  such  relief,  must  have  an  interest,  of 
a  nature  distinguishable  from  that  of  the 
mass  of  the  community.  Linden  v.  Board 
of  Supervisors,  45  Cal.  6.  The  name  of 
the  people  cannot  be  used  in  a  writ  of 
mandamus.  People  v.  Pacheco,  29  Cal.  210. 
The  attorney-general,  where  the  people  are 
interested,  may  delegate  his  authority  to 
sue  (People  v.  Board  of  Supervisors,  36 
Cal.  595) ;  and  where  he  has  given  such 
authority,  and  the  state  is  not  interested, 
and  the  relator  only  is  interested,  the  at- 
torneA^-general  has  no  power  to  control  the 
suit,  cr  to  withdraw  his  consent  to  the 
use  of  the  name  of  the  people.  People  v. 
North  San  Francisco  Homestead  etc.  Ass'n, 
38  Cal.  564.  In  certiorari,  the  people,  as 
an  interested  party,  must  bring  the  action 
to  determine  the  question  of  the  constitu- 
tionality of  an  act  establishing  a  court 
(Fraser  v.  Freelon,  53  Cal.  644);  but  a 
private  party  may  sometimes  maintain  an 
action  for  the  determination  of  a  question 
in  which  the  public  are  interested.  Minor 
v.  Kidder,  43  Cal.  229;  In  re  Marks,  45 
Cal.  199.  Where  a  board  of  supervisors 
has  imposed  a  license  tax,  and  provided 
for  its  collection  in  the  name  of  the  peo- 
ple, the  county  cannot  maintain  an  action 
in  its  own  name  to  recover  the  tax  (Mon- 
terey County  V.  Abbott,  77  Cal.  541;  18 
Pae.  113;  20  Pac.  73);  but  an  action  on  a 
recognizance     in     a     criminal     proceeding 


should  be  in  the  name  of  the  county,  al- 
though the  recognizance  runs  in  the  name 
of  the  people  (Mendocino  County  v.  Lamar, 
30  Cal.  627);  and  an  action  may  be  brought 
in  the  name  of  the  county  to  recover 
money  belonging  to  the  general  fund  of 
the  county.  Solano  County  v.  Neville,  27 
Cal.  465.  Although  a  bond  is  made  in  the 
name  of  the  people,  yet  the  party  for  whose 
benefit  it  was  given  may  sue  and  recover 
thereon.  Baker  v.  Bartol,  7  Cal.  551.  An 
action  on  the  official  bond  of  a  county 
treasurer,  for  failure  to  pay  over  moneys, 
which  are  alleged  to  belong  to  the  county, 
is  properly  brought  in  the  name  of  the 
county.  Mendocino  County  v.  Morris,  32 
Cal.  145.  The  people  are  the  proper  par- 
ties plaintiff  in  an  action  to  recover  a  de- 
linquent swamp-land  assessment,  although 
the  law  provides  that  assessments  shall 
be  collected  in  the  same  manner  as  are 
state  and.  county  taxes  (People  v.  Hagar, 
52  Cal.  171),  but  a  reclamation  district 
may  be  a  party  plaintiff.  People  v.  Haggin, 
57  Cal.  579;  Reclamation  District  v.  Hagar, 
66  Cal.  54;  4  Pac.  945;  Reclamation  Dis- 
trict V.  Parvin,  67  Cal.  501;  8  Pae.  43. 

Actions  by  and  against  corporations.  A 
corporation  must  sue  and  be  sued  in  its 
corporate  name.  Curtiss  v.  Murry,  26  Cal. 
633.  A  suit  to  recover  the  amount  of  a 
subscription  to  stock  of  a  corporation  to 
be  organized,  is  properly  brought  by  the 
corporation,  as  the  real  party  in  interest, 
although  the  subscription  was  payable  to 
a  trustee  or  assignors.  Horseshoe  Pier  etc. 
Co.  V.  Sibley,  157  Cal.  442;  108  Pac.  308. 
Any  action  for  a  recovery  on  a  contract 
to  the  subscription  stock  of  the  corpora- 
tion, must  be  brought  in  the  name  of  the 
corporation,  although  the  subscriptions  are 
made  between  individuals.  Western  Devel- 
opment Co.  V.  Emery,  61  Cal.  611;  Summers 
V.  Farish,  10  Cal.  347;  Wiggins  v.  McDon- 
ald, 18  Cal.  126.  A  cause  of  action  to 
recover  for  misappropriation  of  funds  by 
the  directors,  belongs  to  the  corporation, 
and  not  to  the  stockholders.  Cogswell  v. 
Bull,  39  Cal.  320. 

Actions  by  assignees.  The  assignee  of 
a  judgment  in  favor  of  a  ward,  against  his 
guardian,  may  maintain  an  action  against 
the  sureties  on  the  guardian's  bond.  Heisen 
V.  Smith,  138  Cal.  216;  94  Am.  St.  Rep. 
39;  71  Pac.  180;  Moses  v.  Thorne,  6  Cal. 
87;  Chilstrom  v.  Eppinger,  127  Cal.  326; 
78  Am.  St.  Rep.  46;  5^9  Pac.  696.  The 
assignee  of  a  written  agreement  to  pay 
money  may  maintain  an  action  in  his  own 
name  (Quan  Wye  v.  Chin  Lin  Hee,  123 
Cal.  185;  55  Pac.  783);  as  may  also  the 
assignee  of  a  claim  against  a  county  (First 
National  Bank  v.  Tyler,  21  Cal.  App.  791; 
132  Pac.  1053);  and  so  also  may  the  as- 
signee of  a  contract  of  guaranty  to  secure 
the  payment  of  rent  reserved  in  a  lease 
(Reios  V.  Mardis,  18  Cal.  App.  276;  122 
Pac.  1091);  and  the  assignee  of  a  contract 


§367 


PARTIES  TO   CIVIL   ACTIONS, 


214 


may  sue  for  a  breach  thereof.  Moore  v. 
Waddle,  34  Cal.  145.  The  assignee  of  a 
final  judgment  cannot  maintain  an  action 
against  the  sureties  upon  the  undertaking 
on  appeal.  Chilstrom  v.  Eppinger,  127  Cal. 
326;  78  Am.  St.  Kep.  46;  59  Pac.  696; 
Moses  V.  Thorne,  6  Cal.  87;  and  see  also 
Heisen  v.  Smith,  138  Cal.  216;  94  Am.  St. 
Eep.  39;  71  Pac.  180.  The  verbal  assign- 
ment of  an  account  for  labor  does  not 
make  the  assignee  the  proper  party  plain- 
tiff in  an  action  to  foreclose  a  lien  there- 
for. Eitter  v.  Stevenson,  7  Cal.  388.  The 
delivery  of  a  note  and  mortgage,  without 
any  indorsement  or  written  transfer,  is 
not  such  a  transfer  as  will  deprive  the 
mortgagee  of  the  right  to  sue  thereon  in 
his  own  name,  with  the  consent  of  the 
transferee;  at  most,  it  is  onlj^  a  pledge, 
and,  as  between  the  pledgor  and  the 
pledgee,  the  legal  title  remains  in  the 
former:  the  rule  is,  that,  where  the  plain- 
tiff holds  the  legal  title  to  the  demand,  he 
is  the  real  party  in  interest.  Consolidated 
Nat.  Bank  v.  Hayes,  112  Cal.  75;  44  Pac. 
469.  The  possession  of  a  promissory  note 
is  prima  facie  evidence  of  ownership,  and 
entitles  the  holder  to  sue.  McCann  v. 
Lewis,  9  Cal.  246. 

Action  by  trustees.  Where  a  plaintiff, 
before  the  rendition  of  a  judgment  in 
ejectment,  conveys  the  premises  in  contro- 
versy, an  action  on  the  undertaking  on 
appeal,  given  for  the  sale  and  occupation 
of  the  premises,  is  properly  brought  in  his 
name,  as  he  is  the  trustee  of  an  express 
trust  for  the  benefit  of  his  grantee  (Walsh 
V.  Soule,  66  Cal.  443;  6  Pac.  82);  but  the 
fact  that  the  trustee  of  an  express  trust 
may  maintain  an  action  does  not  affect 
the  right  of  the  real  party  in  interest  to 
maintain  it.  Horseshoe  Pier  etc.  Co.  v. 
Sibley,  157  Cal.  442;  108  Pac.  308. 

Other  actions.  The  widow  of  an  intes- 
tate is  the  proper  party  to  prosecute  a  suit 
to  recover  land.  Page  v.  Garver,  146  Cal. 
577;  80  Pac.  860.  An  action  to  recover 
money  due  an  infant  must  be  brought  in 
the  name  of  the  infant,  bv  his  guardian 
Fox  v.  Minor,  32  Cal.  Ill;  91  Am.  Dec.  566 
A  bankrupt  cannot  maintain  a  suit  in  his 
own  name  in  relation  to  his  own  property 
not  exempt,  pending  proceedings  in  bank 
ruptcy,  after  the  appointment  of  a  trus 
tee.  Simpson  v.  Miller,  7  Cal.  App.  248, 
94  Pac.  252.  In  an  action  for  trespass  on 
real  property,  the  proper  party  plaintiff  is 
the  person  in  actual  possession.  Lightner 
Min.  Co.  v.  Lane,  161  Cal.  689;  Ann.  Cas. 
1913C,  1093;  120  Pac.  771.  The  person 
having  the  possession  of  and  the  legal  title 
to  anything  in  an  action  has  the  right,  as 
the  real  party  in  interest,  to  maintain  the 
action  (Woodsum  v.  Cole,  69  Cal.  142;  10 
Pac.  331);  and  one  who  obtains  title  to  a 
note  and  mortgage  through  a  decree  of 
distribution  is  entitled  to  sue  thereon. 
West  V.  Mears,  17  Cal.  App.  718;  121  Pac. 


700.  An  action  to  condemn  a  particiilar 
riparian  right  is  not  an  action  to  condemn 
absolutely  all  rights  in  and  to  a  part  of 
the  flow  of  the  stream,  and  persons  having 
no  right  or  interest  in  such  riparian  right, 
are  not  proper  parties  to  the  action.  San 
Joaquin  etc.  Irrigation  Co.  v.  Stevinson^ 
164  Cal.  221;  128  Pac.  924. 
Action  by  wife.     See  note  post,  §  370. 

Who  is  real  party  in  interest  within  statute 
defining  parties  by  whom  action  must  be  brought. 
See  note  64  L.  R.  A.   581. 

CODE  COMMISSIONERS'  NOTE.  Stats.  1864, 
p.  29. 

1.  Assignee  of  a  judgment.  A  judgment  is  not 
negotiable,  like  a  bill  of  exchange  by  the  law 
merchant,  but  is  a  mere  chose  in  action,  vesting 
an  equitable  right  in  the  assignee  thereof  to  tin; 
proceeds  of  it,  with  the  right  to  the  usual  and 
legal  means  of  collecting  the  amount  due;  and, 
between  two  bona  fide  purchasers  of  a  judgment, 
the  purchaser  first  in  time  is  prior  in  right. 
Fore   V.    Manlove,    18    Cal.   436. 

2.  Answer,  how  framed.  See  2  Abb.  Forms, 
p.  31:  Voorhees'  N.  Y.  Code,  p.  149,  note. 
Wedderspoon  v.  Rogers,   32   Cal.   569. 

3.  Real  party  in  interest.  Action  must  be  ia 
name  of  real  party  in  interest.  A  stranger  to  a 
transaction  cannot  maintain  a  suit.  Chenery  v. 
Palmer,    5    Cal.    133. 

i.  Real  party  in  interest.  The  possession  of 
a  note,  whether  obtained  before  or  after  matu- 
rity, is  prima  facie  evidence  of  ownership.  The 
averment  of  a  valuable  consideration  lor  tlie 
transfer  to  the  plaintiff  is  generally  immaterial. 
The  transfer,  with  or  without  value,  confers 
upon  the  holder  the  right  of  action ;  and  a  con- 
sideration rieed  not  be  proved,  unless  a  defense 
is  interposed  which  would  otherwise  preclude  a 
recovery.  McCann  v.  Lewis,  9  Cal.  246 :  James. 
V.  Chalmers,  5  Sand.  52;  6  N.  Y.  209.  And  ia 
such  a  case  the  objection  that  the  plaintiff  is 
not  the  owner  of  the  note  is  unavailing.  His. 
right  to  maintain  action  cannot  be  questioned, 
except  the  defendant  pleads  payment  to,  or  off- 
set against,  the  party  alleged  to  be  the  true 
owner.  Price  v.  Dunlap,  5  Cal.  483;  Gushee  v. 
Leavilt,    5    Cal.    160;    63    Am.   Dec.    116. 

5.  Real  party  in  interest,  whether  the  relief 
sought  is  legal  or  equitable.  We  have  but  one 
form  of  action  for  the  enforcement  of  private 
rights,  and,  with  certain  exceptions,  the  code  re- 
quires that  every  action  shall  be  prosecuted  in 
the  name  of  the  real  party  in  interest.  Cases  of 
assignment  are  not  included  in  these  exceptions 
(see  §  369);  and  in  the  form  of  the  remedy  no 
distinction  exists  between  legal  and  equitable 
rights.  In  this  respect  the  two  classes  of  rights, 
are  placed  precisely  upon  the  same  footing,  and 
must  undergo  the  same  remedial  process  for  their 
enforcement.    Wiggins  v.   McDonald.   18   Cal.   127. 

6.  Several  obligees  in  a  bond.  A  bond  given 
to  all  the  obligees  V)y  name,  and  using  no  words 
expressing  a  several  obligation,  yet  necessarily 
creates  a  several  liability,  the  design  of  it  being 
to  secure  each  and  all  of  the  obligees  from  dam- 
ages or  injury.  In  such  cases,  however,  under 
the  common-law  practice,  it  has  been  held  that 
the  suit  was  properly  brought  in  the  name  of  the- 
several  obligees;  and  the  question  was  said  to  be 
purely  technical,  to  wit,  With  whom  was  the 
contract  made? — the  obligation  being  technically" 
to  both  to  pay  whatever  damage  might  be  sus- 
tained by  either,  though,  when  recovered,  the 
money  would  go  to  the  party  who  sustained  the 
injury.  Whatever  the  rule  may  be  under  the  old 
system,  we  think  that,  under  our  system,  the- 
rich*  of  action  is  in  the  p.irty  sustaining  the  in- 
jury; for,  on  a  recovery,  the  other  party,  if  en- 
titled to  receive  the  money  at  all,  if  judgment 
were  had  in  the  name  of  both,  would  hold  it  by 
right  of,  and  as  a  trustee  for,  the  other;  and  our 
Practice  Act.  for  convenience,  has  given  the  right 
to  sue  to  the  party  beneficially  entitled  to  the 
fruits  of  the  action.  Summers  v.  Parish,  10  Cal. 
347;    Prader   v.   Puckett,    13   Cal.    591. 

7.  In  a  joint  bond,  each  party  may  sue  for  his- 
several     damages,     notwithstanding    the     bond     ift 


215 


ACTION  TO  BE  IN  NAME  OF  PARl'Y  IN   INTEREST. 


§367 


made  payable  to  the  obligees  jointly.  Lally  v. 
Wise,  28  Cal.  539.  See  also  Browner  v.  Davis, 
15   Cal.   11. 

8.  Party  beneficially  interested  in  damages  may 
sue  on  bond  given  to  officer,  state,  or  corporation. 
Formerly,  where  a  bond  was  given  to  an  officer, 
state,  or  corporation,  suit  had  to  be  broufiht  in 
the  name  of  the  party  holding  the  legal  title,  for 
the  benefit  of  the  persons  interested;  but  our 
statute  has  introduced  a  new  rule,  and,  by  the 
provisions  of  the  Practice  Act,  the  suit  must  be 
prosecuted  in  the  name  of  the  real  party  in  in- 
terest, i.  e.,  the  party  beneficially  interested  in 
the  damages.  Baker  v.  Bartol,  7  Cal.  551;  Lally 
V.  Wise,  28  Cal.  540;  M'ormouth  v.  Hatch,  33 
Cal.  121.  A  plaintiff,  being  the  real  party  in 
interest,  has  a  right  to  sue  upon  a  b^nid,  though 
made  payable  to  the  people  of  the  state.  Baker 
V.  Bartol,   7   Cal.   551. 

9.  Assignees.  Where  A  owes  B,  and  B  owes 
C,  and  A  and  B,  without  consulting  C,  agree  be- 
tween themselves  that  A  shall  pay  C  what  A 
owes  to  B,  it  was  held  that  an  action  could  not 
be  maintained  by  C  against  A,  for  want  of  priv- 
ity (McLaren  v.  Hutchinson,  18  Cal.  80)  ;  but 
this  was  questioned  and  declared  open  for  fur- 
ther investigation  in  Lewis  v.  Covillaud,  21  Cal. 
189;  and  it  was  also  held,  that  where  A,  B,  and 
C  agre«  among  themselves  that  A  shall  be  liable 
to  C  for  a  debt  due  from  B  to  C,  the  assignee  of 
C  could  sue  in  his  own  name  for  the  debt  due 
from  A.  McLaren  v.  Hutchinson,  22  Cal.  190, 
83   Am.   Dec.  59,   and  cases  therein   cited. 

10.  ActioH  of  ejectment.  Legal  title  to  be 
represented.  In  an  action  of  ejectment,  the  plain- 
tiff suing  for  possession  must  have  or  represent 
the  legal  title:  an  equitable  title  is  not  sufficient. 
The  action  must  be  in  the  name  of  the  party 
holding  the  legal  title.  Emeric  v.  Penniman,  26 
Cal.  123:  see  also  Estrada  v.  Murphy,  19  Cal. 
272;    Clark  v.   Lockwood,   21    Cal.  222. 

11.  Action  by  sheriff  against  party  owing  at- 
tachment debtor.  Where  an  attachment  was  is- 
sued by  the  court  of  first  instance  against  the 
property  of  a  debtor,  and  the  sheriff  had  exe- 
cuted the  same,  and  was  ordered  to  make  the 
amount  due  the  creditor  out  of  the  goods,  chat- 
tels, and  property  of  the  debtor.  Held:  that  the 
sheriff  could  not  maintain  an  action  in  his  own 
name  to  recover  a  sum  owing  to  the  attachment 
debtor  bv  a  third  person  for  goods  sold  and  de- 
livered.    Sublette  v.   Melhado.   1    Cal.   104. 

12.  Sheriff  not  responsible  when  goods  re- 
leased from  attachment  on  sufficient  undertaking. 
An  undertaking  given  to  a  sheriff  to  procure  a 
release  of  goods  attached  is  for  the  benefit  of  the 
plaintiff,  notwithstanding  it  is  in  the  name  of 
the  sheriff,  and  the  plaintiff  may  sue  on  it;  and 
if  the  sheriff  takes  a  sufficient  statutory  under- 
taking, he  has  no  further  responsibility.  Curiae 
V.  Packard,  29  Cal.  194. 

13.  Party  procuring  patent  for  land,  who  has 
no  right  thereto.  Who  may  maintain  action 
against.  If  the  United  States  confirm  a  grant  of 
land,  and  issue  a  patent  therefor,  to  a  party  who 
did  not  own  the  grant  and  had  no  right  to  the 
patent,  the  patentee  can  only  hold  the  legal  title 
in  trust  for  the  real  parties  in  interest;  and  as 
to  who  are  proper  parties  in  an  action  for  affirm- 
ative relief,  see  facts  of  case  in  Salmon  v.  Sy- 
monds,  30  Cal.  306,  and  authorities  there  cited. 
See  also  §  378. 

14.  A  party  plaintiff  who  was  agent  for  defend- 
ants in  the  transaction  complained  of.  The  fact 
that  the  owner  of  a  ship,  lost  while  being  towed 
to  sea,  was  the  agent  for  the  owners  of  the 
steam-tug,  does  not  relieve  the  latter  from  any 
of  the  obligations  under  which  they  contract  with 
others.  White  v.  Steam-tug  Mary  Ann,  6  Cal. 
462  :  65  Am.  Dec.  52?,. 

15.  Corporations  as  plaintiffs.  The  allegation 
that  plaintiff  is  a  corporation  under  the  laws  of 
the  state  is  sufficient  to  establish  the  legal  capa- 
city to  sue.  California  Steam  Nav.  Co.  v.  Wright, 
6  Cal.  258:    65  Am.  Dec.  511. 

16.  Assignable  instruments.  A  contract  not  to 
run  boats  on  a  certain  line  of  travel,  and  on  fail- 
ure to  comply  with  such  contract  to  pay  fifteen 
thousand  dollars,  is  an  instrument  in  writing  for 
the  payment  of  money,  and  assignable  by  our 
laws.  California  Steam  Nav.  Co.  v.  Wright,  6 
CaL  258;   65  Am.  Dec.  511. 


17.  What  may  be  assigned.  Assignees.  Ac- 
ceptance of  orders.  Funds  in  the  hands,  or  to 
come  into  the  hands,  of  the  third  person,  are  as- 
signable, and  the  drawees  having  given  an  order 
and  received  notice  of  ils  acceptance  are  liable 
to  the  payees,  without  any  other  express  promise 
to  pay.  Pope  v.  Iluth,  14  Cal.  407,  and  cases 
cited. 

18.  Acceptance  of  orders.  Where  an  order  is 
drawn  for  an  amount  due,  it  is  a  prima  facie  as- 
signment of  the  debt  due.  Even  if  it  was  only 
for  part  of  a  debt,  no  one  could  make  the  objec- 
tion but  the  defendants.  McKwen  v.  Johnson.  7 
Cal.  260;  Whestley  v.  Strobe,  12  Cal.  97;  73 
Am.  Dec.  522.  It  would  seem  that  a  debtor  may 
accept  orders  in  favor  of  different  persons,  for 
different  portions  of  the  debt,  and  those  accepted 
orders  will  bind  all  parties.  McEwen  v.  Johnson, 
7  Cal.  260. 

19.  Assignment  of  debt  by  parcels.  And  so 
debts  due  a  party  may  by  him  be  split  up  and 
assigned  in  parcels,  and  the  debtor  subjected  to 
costs  of  more  suits  than  was  in  the  first  place 
contemplated,  if  such  debtor  consents  thereto. 
Marzion  v.  Pioche,   8  Cal.  536. 

20.  Agreement  not  to  defend  suit  assignable. 
A  agrees  to  pay  a  certain  sum  of  money  to  B,  if 
B  will  cease  to  defend  a  certain  suit.  Held: 
such  an  agreement  is  assignable,  and  gives  the 
assignee  a  right  to  suit  in  his  own  name.  Gray 
V.  Garrison,  9  Cal.  325. 

21.  Assignable  contract.  A  contract  leasing  a 
stallion  for  a  certain  time,  and  with  a  right  re- 
served to  have  nine  mares  covered  by  the  stud 
during  the  continuance  of  the  lease,  may  be  as- 
signed, and  carries  therewith  all  the  benefits  aris- 
ing out  of  the  contract.  But  the  assignee  must 
give  notice  to  the  lessee  of  the  assignment.  Doll 
V.  Anderson,  27  Cal.  248. 

22.  Contingent  rights  and  interests  are  not  or- 
dinarily assignable  at  law,  but  they  are  in  equity. 
Assignments  of  such  rights  and  interests,  in  be- 
ing, are  upheld  and  enforced  by  courts  of  equity, 
And,  more  than  this,  these  courts  support  and 
give  effect  to  assignments  of  things  which  have 
no  present  actual  existence,  but  rest  in  mere 
possibility;  not  as_a  present  positive  transfer 
operates  in  prjBsenti,  but  as  a  present  contract, 
to  take  effect  and  attach  as  soon  as  the  thing 
comes  in  esse.  Bibend  v.  Liverpool  etc.  Fire  and 
Life  Ins.  Co.,  30  Cal.  78:  Pierce  v.  Robinson,  13 
Cal.  121;  2  Storv's  Eq.,  §  1040;  Mitchell  v.  Win- 
slow,   2    Story,  §  638;    Fed.   Cas.   No.   9673. 

23.  Assignment  of  policy  of  Insurance  to  one 
having  no  interest  in  property  insured.  See  Bi- 
bend V.  Liverpool  etc.  Fire  and  Life  Ins.  Co.,  30 
Cal.   89;   see  also  Civ.  Code,   §§2546-2557. 

24.  Assessment  for  street  improvements  assign- 
able. An  assessment  for  street  improvements 
against  an  owner  of  property  assignable  by  the 
contractor.  Cochran  v.  Collins,  29  Cal.  129.  And 
a  contract  for  improving  a  street  may  be  as- 
signed. See  Taylor  v.  Palmer,  31  CaL  248,  and 
cases  cited. 

25.  Suits  by  assignees.  Where  A  was  indebted 
to  a  company,  and  the  company  indebted  to  B, 
if  all  parties  agreed  that  A  should  pay  his  debt 
to  B  it  is  an  equitable  assignment,  and  the  as- 
signees can  sue  for  the  amount  of  the  assignment. 
V\'iggins  v.  McDonald,  18  Cal.  126.  An  appro- 
priation of  the  fund  is  all  that  is  necessary,  and 
any  act  amounting  to  such  an  appropriation  was 
sufficient  to  constitute  an  equitable  assignment  of 
the  debt.      Id. 

26.  Assignment  of  a  judgment  assignment  of 
debt  on  which  judgment  was  obtained.  It  mat- 
ters not  if  an  assignment  of  a  judgment  is  made, 
and  the  judgment  is  invalid  for  want  of  jurisdic- 
tion, for  the  assignment  of  a  judgment  so  void  is 
an  assignment  of  the  debt  for  which  it  was  ob- 
tained.   Brown  v.  Scott,  25  Cal.  196. 

27.  Cause  of  action  assignable.  Whether  a 
cause  of  action  is  assignable  depends  mainly  upon 
whether,  in  case  of  the  death  of  the  assignor,  it 
would  descend  to  his  representatives.  Znbri'jkie 
V.  Smith,  13  N.  Y.  322;  64  Am.  Dec.  551;  Me- 
Kee  V.  Judd,  12  N.  Y.  622;  64  Am.  Dec.  515; 
Dininny  v  Fay,  38  Barb.  18;  Fried  v.  New  York 
Central  R.  R.  Co.,  25  How.  Pr.  285;  People  v. 
Tioga  Common  Pleas,  19  Wend.  73. 


§368 


PARTIES  TO   CIVIL  ACTIONS. 


216 


28.  Suit  by  assignee  of  personal  property. 
■Where  personal  properly  is  wrongfully  detained, 
the  owner  may  assign  his  title  thereto,  and  the 
assignee  mav  maintain  an  action  therefor.  Cass 
V  Xew  York  etc.  R.  R.  Co.,  1  E.  D.  Smith,  522; 
McGinn  v.  Worden,  3  E.  D.  Smith,  355;  Hall  v. 
Robinson,  2  N.  Y.  295;  The  Brig  Sarah  Ann,  2 
Sumn.  211;  Fed.  Cas.  No.  12342;  2  Hilliard  on 
Torts,  275;  Lazard  v.  Wheeler,  22  Cal.  142. 

29.  A  right  of  action  for  the  wrongful  taking 
and  conversion  of  personal  property  is  assign- 
able, and,  under  the  provisions  of  the  code,  the 
assignee  can  recover  upon  the  same  in  his  own 
name.  McKee  v.  Judd.  12  N.  Y.  622;  64  Am. 
Dec.  515;  Hoyt  v.  Thompson,  5  N.  Y.  347;  see 
also  Xorth  v.  Turner,  9  Serg.  &  R.  244;  LazarJ 
V.  Wheeler,  22  Cal.  142. 

SO.  A  damage  caused  by  trespass  on  land  may 
be  assignable.    More  v.  Mnssini,  32  Cal.  590. 

31.  Causes  of  action  not  assignable.  A  judg- 
ment in  an  action  for  a  non-assignable  tort  be- 
comes a  debt,  but  the  recovery  of  judgment  does 
not  change  the  character  of  the  debt  bo  as  to 
make  it  assignable.  Lawrence  v.  Martin,  22  Cal. 
173. 

32.  Partner  cannot  assign  claim  against  his 
firm.  Assignee  canaot  maintain  an  action  there- 
on. A  partner  who  has  a  claim  against  the  firm 
of  whicli  he  is  a  member,  and  who  cannot  there- 
fore sue  the  firm  at  law,  cannot  confer  upon  his 
assignee  a  right  to  maintain  such  an  action.  If 
he  could  avoid  the  disability  by  assignment,  it 
would  defeat  all  the  substantial  reasons  upon 
which  the  rule  is  founded.  Bullard  v.  Kinney,  10 
Cal.  63. 

33.  Vendor's  lien  not  assignable.  A  vendor's 
lien  cannot  be  assigned.  Baum  v.  Grigsby,  21 
Cal.  172;  81  Am.  Dec.  153;  affirmed  in  Lewis  v. 
Covillaud,  21  Cal.  178;  Williams  v.  Young,  21 
Cal.  227. 

34.  A  cause  of  action  arising  out  of  a  tort  Is 
not  assignable.    Oliver  v.  Walsh,  6  Cal.  456. 

35.  An  assignment  of  an  account  by  indorse- 
ment of  the  word  "assigned,"  signed  by  the  owner 
of  the  account,  is  sufficient.  Ryan  v.  Maddux,  6 
Cal.  247. 

36.  Plaintiff  designated  by  name  of  copartner- 
ship firm.  A  complaint,  which  contains  no  other 
designation   of   the  party  plaintiff  than   the   name 


of  a  partnership  firm,  is  defective.  Oilman  t. 
Cosgrove,  22  Cal.  35G. 

37.  Set-off  judgment  not  defeated  as  a  set-off 

by  assignment.  Where,  in  the  same  action,  two 
judgments  were  entered,  one  for  the  plaintiff  for 
a  certain  sum,  and  one  for  the  defendant  for  a 
less  sum:  Held:  that  defendant  has  a  right  to  set 
off  his  judgment,  pro  tanto,  against  that  of  the 
plaintiff,  and  that  this  right  could  not  be  de- 
feated by  any  assignment  by  plaintiff  of  his  judg- 
ment' before  application  for  the  set-off.  Porter  v. 
Liscom,  22  Cal.  430;   83  Am.  Dec.  76. 

38.  Promise  to  third  party.  Where  the  obliga- 
tion with  which  it  is  sought  to  affect  defendants 
personally  arises  out  of  an  alleged  promise  given 
by  them  to  W.  and  A.  Elder,  of  whom  they  bought 
the  land  mortgaged  by  Pangburn  to  plaintiff,  that 
they  would  pay  a  portion  of  the  purchase-money, 
equal  to  the  amount  due  or  to  grow  due  upon 
the  note  given  by  Pangburn  to  plaintiff,  and  se- 
cured by  said  mortgage,  this  is  not  a  promise  to 
pay  the  debt  of  another,  nor  to  pay  the  Pang- 
burn note,  but  an  original  promise  by  them  to 
the  Elders  to  pay  their  own  debt  to  them,  by  pay- 
ing a  certain  amount  of  money  to  plaintiff.  If 
such  promise  was  given,  plaintiff  could  recover 
upon  it  as  the  party  beneficially  interested.  Wor- 
mouth  V.  Hatch,   33   Cal.  121. 

39.  In  ■whose  name  writ  of  mandate  must  be 
applied  for.  An  application  for  the  writ  of  man- 
date must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  and  if  the  name  of  the  people 
is  used  and  the  people  have  no  interest,  and  the 
relator  alone  is  interested,  the  writ  will  be  de- 
nied.   People  V.  Pacheco,  29  Cal.  210. 

40.  Who  are  proper  parties  in  an  action  for 
partition.  Gates  v.  Salmon,  35  Cal.  576;  95  Am. 
Dec.   139. 

41.  Suit  by  assignee  of  a  claim.  An  absolute 
assignment  of  a  demand  enables  the  assignee  to 
sue  for  and  recover  the  whole  debt,  even  though 
by  the  assignments  he  acquired  only  a  portion  of 
the  demand.    Gradwohl  v.  Harris,  29  Cal.  150. 

42.  Intervention  by  part-owner  of  claim  sued 
on.  If  the  owner  of  a  claim  assigns  it  absolutely, 
retaining,  however,  an  interest  in  it,  he  may  inter- 
vene to  protect  his  interests  in  an  action  brought 
by  the  assignee  to  collect  the  same;  and  if  he 
does  not  intervene,  he  is  bound  by  the  judgment. 
Gradwohl  v.  Hatch,  29  Cal.  150. 


§  368.  Assignment  of  thing  in  action  not  to  prejudice  defense.  In  the 
case  of  an  assignment  of  a  thing  in  action,  the  action  by  the  assignee  is  with- 
out prejudice  to  any  set-off,  or  other  defense  existing  at  the  time  of,  or  before, 
notice  of  the  assignment;  but  this  section  does  not  apply  to  a  negotiable 
promissory  note  or  bill  of  exchange,  transferred  in  good  faith,  and  upon 
good  consideration,  before  maturity. 


Assignment  and   survival  of  causes   of   action. 

See  post,  §§  1582   et   seq. 

Negotiable  instruments,  and  rights  of  parties 
thereto.  Civ.  Code,  §§  3086  et  seq.,  where  the 
subject  is   discussed. 

Thing  in  action,  defined.    Civ.  Code,  §  953. 

Legislation  §  368.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  5  (New  York  Code, 
§  112),  which  had  (1)  the  words  "shall  be"  in- 
stead of  "is"  before  "without,"  (2)  the  word 
"shall"  instead  of  "does"  before  "not  apply," 
and    (3)    the  word  "due"   instead  of   "maturity." 

Assignment    of     thing    in    action.     The 

rule  vi-hich  prevailed  in  equity  is  adopted 
in  this  section  (McCabe  v.  Grey,  20  Cal. 
509),  and  it  embraces  every  kind  of  thing 
in  action,  except  negotiable  paper,  which 
paper  alone  is  excepted  from  its  operation. 
St.  Louis  Nat.  Bank  v.  Gay,  101  Cal.  286; 
35  Pac.  876;  McKenney  v.  Ellsworth,  16.3 
Cal.  326;  132  Pac.  75.  "A  thing  in  action" 
is  a  right  to  recover  money  or  other  per- 


sonal property  by  a  judicial  proceeding 
(Haskins  v.  Jordan,  123  Cal.  157;  55  Pac. 
786);  and  "a  thing  in  action  not  arising 
out  of  contract"  means  a  thing  in  action 
not  arising  out  of  express  contract.  Oliver 
V.  Walsh,  6  Cal.  456.  The  law  does  not 
require  that  the  assignee  for  value  of  a 
thing  in  action  shall  take  it  subject  to 
latent  equities  of  third  persons,  of  which 
he  has  no  notice,  but  only  that  the  assign- 
ment shall  be  subject  to  equities  existing 
in  favor  of  the  debtor.  First  Nat.  Bank 
V.  Perris  Irrigation  Dist.,  107  Cal.  55; 
40  Pac.  45;  Wright  v.  Levy,  12  Cal.  257. 
Equity  will  uphold  assignments,  not  only 
of  choses  in  action,  but  also  of  contingent 
interests  and  expectations,  and  of  things 
which  have  no  present  actual  existence, 
but  rest  in  possibility;  and  an  agreement 
for  such  interests  will  tako  effect  as  such 


217  ASSIGNMENT   OF  THING   IN  ACTION    NOT  TO   PREJUDICE   DEFENSE.         §  368 


assignment,  when  the  subjects  to  which 
tney  refer  have  ceased  to  rest  in  possibil- 
ity, and  have  ripened  into  reality.  Pierce 
V.  Kobinson,  13  Cal.  116.  An  unsatisfied 
judgment  is  a  thing  in  action,  within  this 
section  (Haskins  v.  Jordan,  123  Cal.  157; 
55  Pac.  78(j);  but  an  assignee  thereof,  after 
the  reversal  of  the  judgment,  stands  in  the 
same  position  as  the  assignor.  Reynolds  v. 
Harris,  14  Cal.  (567;  76  Am.  Dee.  459.  The 
rights  of  the  assignee  of  a  judgment  are 
not  affected  by  payments  voluntarily  made 
by  the  judgment  debtor,  notwithstanding 
the  latter  had  no  notice  of  the  assignment. 
Brown  v.  Ayres,  33  Cal.  525;  91  Am.  Dec. 
655.  The  assignee  of  a  judgment  is  simply 
the  holder  of  an  equity,  with  the  right  to 
use  the  assignor's  name  to  enforce  it,  and 
he  occupies  the  position  of  the  assignor  as 
to  all  the  defenses  which  existed  between 
the  original  parties.  Wright  v.  Levy,  12 
Cal.  257.  Equity  will  also  uphold  an  as- 
signment of  the  funds  in  the  hands,  or  to 
come  into  the  hands,  of  another  (Pope  v. 
Huth,  14  Cal.  403;  Pierce  v.  Robinson,  13 
Cal.  116;  Grain  v.  Aldrich,  38  Cal.  514; 
99  Am.  Dec.  423),  and  also  the  assignment 
of  an  insurance  policy,  where  there  is  no 
transfer  of  the  property.  Bergson  v.  Build- 
ers' Insurance  Co.,  38  Cal.  541.  The  lease 
of  a  stallion,  with  a  reservation,  is  assign- 
able, and  the  assignee  is  entitled  to  the 
benefit  arising  out  of  the  contract.  Doll  v. 
Anderson,  27  Cal.  248.  8o  also  is  an  agree- 
ment to  pay  a  certain  sum  of  money  to 
a  defendant  to  sign  a  stipulation  waiving 
a  jury,  and  to  withdraw  a  defense  inter- 1 
posed.  Gray  v.  Garrison,  9  Cal.  325.  An 
order  drawn  for  the  amount  due  the  de- 
fendant is  prima  facie  an  assignment  of 
the  debt  due.  McEwen  v.  Johnson,  7  Cal. 
258;  Wheatley  v.  Strobe,  12  Cal.  92;  73 
Am.  Dec.  522;  Pope  v.  Huth,  14  Cal.  403. 
A  part  of  a  debt  or  demand  cannot  be  as- 
signed, without  the  debtor's  consent,  so 
as  to  give  the  assignee  a  right  of  action, 
for  the  creditor  cannot  split  up  his  cause 
of  action  (Marziou  v.  Pioche,  8  Cal.  522); 
but  such  an  assignment  is  valid  in  equity, 
without  the  consent  of  the  debtor.  Grain 
v.  Aldrich,  38  Cal.  514;  99  Am.  Dee.  423. 
A  partnership  in  an  unsettled  account  is 
not  assignable,  where  there  is  no  balance 
struck,  and  no  promise  on  the  part  of  the 
individual  members  to  pay  their  ascer- 
tained proportions  of  the  amount.  Bullard 
V.  Kinney,  10  Cal.  60.  A  cause  of  action 
for  tort  is  not  assignable  (Lawrence  v. 
Martin,  22  Cal.  173),  unless  reduced  to 
judgment;  then  the  judgment  becomes  a 
debt,  and  is  undoubtedly  assignable.  Oli- 
ver V.  Walsh,  6  Cal.  456. 

Without  prejudice  to  set-oflf  or  other 
defense.  Set-off,  as  used  in  this  section, 
is  applicable  to  demands  independent  in 
their  nature  and  origin;  and  counterclaim 
includes  both  recoupment  and  set-off,  and 
is,  strictly  speaking,  a  pleading  by  which 


matters  arising  out  of  recoupment  or  set- 
off are  averred.  St.  Louis  Nat.  Bank  v. 
Gay,  101  Cal.  286;  35  Pac.  876.  The  as- 
signee takes  for  a  valuable  consideration 
an  assignment  of  a  judgment  subject  to 
the  right  of  set-off  existing  between  the 
parties  at  the  time  of  the  purchase.  Hobbs 
V.  Duff,  23  Cal.  596;  Jones  v.  Chalfant, 
55  Cal.  505.  A  judgment  is  not  available 
as  a  set-off  in  an  action  of  common-law 
jurisdiction,  where  the  parties,  in  such 
case,  are  not  the  same;  but  in  a  court  of 
equity  it  is  otherwise;  the  court  will  look 
beyond  the  nominal  parties  to  the  suit,  to 
the  real  parties  in  interest,  and  adjudi- 
cate the  rights  between  them  accordingly. 
Hobbs  V.  Duff,  23  Cal.  596.  The  assignee 
of  an  unsatisfied  judgment  takes  it  cum 
onere,  subject  to  all  rights  of  set-off  affect- 
ing it  that  the  judgment  debtor  had,  or 
might  acquire,  before  notice  to  him  of  the 
assignment.  Haskins  v.  Jordan,  123  Cal. 
157;  55  Pac.  786.  Under  this  section,  and 
§  1459  of  the  Civil  Code,  a  defendant  may 
avail  himself  of  any  set-off  or  defense  ac- 
quired before  notice  of  the  assignment  of 
any  non-negotiable  cause  of  action.  Helmer 
v.  Parsons,  18  Cal.  App.  450;  123  Pac.  356. 
It  is  the  duty  of  the  proposed  assignee  of 
a  non-negotiable  cause  of  action  to  in- 
quire as  to  any  defenses  or  set-offs  against 
it.  Helmer  v.  Parsons,  18  Cal.  App.  450; 
123  Pac.  356. 

Does  not  apply  to  negotiable  paper.  An 
assignee  or  a  transferee,  bona  fide,  for 
value,  before  maturity,  of  a  promissory 
note  or  other  negotiable  instrument,  takes 
the  same  free  from  all  equities,  counter- 
claims, and  set-offs  (Payne  v.  Benslej^  8 
Cal.  260;  68  Am.  Dec.  318;  Robinson  v. 
Smith,  14  Cal.  94;  Naglee  v.  Lyman,  14 
■Cal.  450);  after  maturity,  a  different  rule 
prevails  as  to  the  first  taker  and  all  sub- 
sequent takers  (Folsom  v.  Bartlett,  2  Cal. 
163;  Vinton  v.  Crowe,  4  Cal.  309;  Fuller 
V.  Hutchings,  10  Cal.  523;  70  Am.  Dec. 
746;  Hayward  v.  Stearns,  39  Cal.  58);  but 
whe.re  the  original  assignee  took  the  in- 
strument before  maturity,  bona  fide,  for 
value,  discharged  of  all  equities,  counter- 
claims, and  set-offs,  all  the  subsequent  in- 
dorsers  will  hold  in  like  manner,  even 
though  they  take  after  maturity.  Bank  of 
Sonoma  County  v.  Gove,  63  Cal.  355 ;  49 
Am.  Rep.  92.  Where  a  non-negotiable  note 
is  transferred  by  assignment  after  matu- 
rity, the  assignee  takes  it  subject  to  all 
equities  and  defenses  which  could  have 
been  urged  against  the  original  payee.  San 
Jose  Ranch  Co.  v.  San  .Jose  Land  etc.  Co.. 
132  Cal.  582;  64  Pac.  1097;  St.  Louis  Nat. 
Bank  v.  Gay,  101  Cal.  286;  35  Pac.  876. 

Before  maturity.  An  assignee,  bona 
fide,  for  value,  of  a  negotiable  instrument, 
before  maturity,  takes  the  same  free  from 
all  equitable  defenses  (Hays  v,  Plummer, 
126  Cal.  107;  77  Am.  St.  Rep.  153;  58  Pac. 
447);  and  an  assignee  of  negotiable  paper, 


§368 


PARTIES  TO   CIVIL  ACTIONS. 


218 


indorsed  and  delivered  before  maturity,  is 
presumed  to  be  the  bona  fide  owner  there- 
of, and  all  intendments  are  in  favor  of 
his  right.  Palmer  v.  Goodwin,  5  Cal.  458. 
A  negotiable  promissory  note,  not  yet  due, 
taken  bona  fide,  as  collateral  security  for 
a  pre-existing  debt,  is  taken  free  from  any 
equities,  defenses,  or  set-offs  existing  be- 
tween the  original  parties  (Payne  v, 
Bensley,  8  Cal.  260;  68  Am.  Dec.  318); 
but  where  assigned  after  maturity,  it  is 
taken  subject  to  equities.  Graves  v.  Mono 
Lake  etc.  Mining  Co.,  81  Cal.  303;  22  Pac. 
665.  An  assignee  after  maturity  takes  the 
same  interest  the  assignor  had,  and  the 
thing  in  action  is  subject  to  the  same  de- 
fenses, legal  and  equitable,  as  if  it  were 
in  the  hands  of  the  assignor.  Folsom  v. 
Bartlett,  2  Cal.  163.  A  check,  after  dis- 
honor, is  taken  subject  to  all  the  defenses 
to  which  it  would  be  subject  in  the  hands 
of  the  original  holder.  Fuller  v.  Hutchings, 
10  Cal.  523;  70  Am.  Dec.  746. 

After  maturity.  A  negotiable  note, 
taken  after  maturity,  is  taken  subject  to 
all  subsisting  equities  between  the  maker 
and  the  payee,  but  not  such  as  subsisted 
between  the  maker  and  an  intermediate 
holder.    Warner  v.  Wilson,  4  Cal.  310. 

Non-negotiable  instrument.  Non-nego- 
tiable paper  is  subject  to  all  set-offs,  equi- 
ties, and  defenses,  legal  and  equitable,  in 
the  hands  of  the  assignee,  that  existed  in 
favor  of  the  payor,  against  the  payee,  at 
the  time  of  the  assignment,  or  of  notice 
thereof  (St.  Louis  Nat.  Bank  v.  Gay,  101 
Cal.  286;  35  Pac.  876;  Mitchell  v.  Hackett, 
14  Cal.  661),  and  is  also  subject  to  all  set- 
offs that  mature  after  notice,  and  before 
suit  brought.  St.  Louis  Nat.  Bank  v.  Gay, 
101  Cal.  286;  35  Pac.  876.  The  answer 
must  show  that  the  counterclaim  or  set-off 
arose  before  the  assignment,  or  before  the 
defendant  had  notice  thereof,  or,  on  mo- 
tion, judgment  for  plaintiff  must  be  en- 
tered on  the  pleadings.  Benham  v.  Connor, 
113  Cal.  168;  45  Pac.  258;  and  see  Hemme 
V.  Hays,  55  Cal.  337;  Loveland  v.  Garner, 
74  Cal  298;  15  Pac.  844;  San  Francisco 
v.  Staude.  92  Cal.  560;  28  Pac.  778. 

Consideration.  The  delivery  of  a  chose 
in  action,  for  a  valuable  consideration, 
without  a  writing,  is  a  sufficient  transfer. 
Bibend  v.  Liverpool  etc.  Fire  and  Life  Ins. 
Co.,  30  Cal.  78.  The  presumption  is,  that 
a  check  was  given  upon  a  valid  considera- 
tion; but  this  presumption  may  be  re- 
butted. Fuller  V.  Hutchings,  10  Cal.  523; 
70  Am.  Dec.  746.  A  valid  consideration  is 
necessary  to  the  validity  of  an  assign- 
ment; a  pre-existing  debt  is  a  valuable 
consideration.  Payne  v.  Bensley,  8  Cal. 
260;  68  Am.  Dee.  318;  Robinson  v.  Smith, 
14  Cal.  94;  Naglee  v.  Lyman,  14  Cal.  450; 
Frey  v.  Clifford,  44  Cal.  335;  Davis  v.  Rus- 
sell, 52  Cal.  611;  28  Am.  Rep.  647;  Sackett 
V.  .Johnson,  54  Cal.  107.  A  claim  may  be 
assigned   either  for   a   valuable   considera- 


tion or  for  collection,  and  may  be  enforced 
by  the  assignee,  subject  to  any  defense  or 
counterclaim  against  the  assignor.  Wat- 
kins  V.  Glas,  5  Cal.  App.  68;  89  Pac.  840. 

Suflaciency  of  assignment.  No  particu- 
lar form  of  words  is  necessary  to  constitute 
an  assignment.  W^iggins  v.  McDonald,  18 
Cal.  126.  An  indorsement  of  an  account, 
"Assigned  to  A  and  B,"  signed  by  the 
owner  of  the  account,  is  sufficient.  Ryan 
V.  Maddux,  6  Cal.  247.  "Please  hold  to  the 
order  of  Messrs.  A  &  B,  of  C,  (£500)  five 
hundred  pounds,  sterling,  of  insurance, 
effected  on  cargo  per  bark  D,  and  oblige," 
is  an  equitable  assignment  of  the  funds  in 
the  hands  or  to  come  into  the  hands  of  the 
drawees,  to  the  payees.  Pope  v.  Huth,  14 
Cal.  403.  "Please  pay  to  the  bearer  of 
these  lines  two  hundred  and  thirty-six  dol- 
lars, and  charge  the  same  to  my  account," 
where  given  for  a  valuable  consideration, 
and  for  the  whole  amount  of  the  demand 
against  the  drawee,  operates  as  an  assign- 
ment of  the  debt  or  fund  against  which  it 
was  drawn.  Wheatley  v.  Strobe,  12  Cal. 
92;  73  Am.  Dec.  522.  A  non-negotiable 
contract,  indorsed  in  blank,  passes  by  de- 
livery, the  same  as  a  negotiable  one,  but 
subject  to  all  equities  and  defenses  exist- 
ing in  favor  of  the  maker  at  the  time  of 
indorsement.  Lucas  v.  Pico,  55  Cal.  126. 
An  order  given  by  a  creditor  on  his  debtor 
is  an  equitable  assignment  of  the  claim, 
where  it  covers  the  full  amount,  without 
acceptance;  and  where  for  less  than  the 
full  amount,  and  accepted,  it  is  an  assign- 
•ment  pro  tanto.  McEwen  v.  Johnson,  7 
Cal.  258;  Wheatley  v.  Strobe,  12  Cal.  92; 
73  Am.  Dec.  522;  Pierce  v.  Robinson,  13 
Cal.  116;  Pope  v.  Huth,  14  Cal.  404;  Grain 
v.  Aldrich,  38  Cal.  514;  99  Am.  Dec.  423. 
"Pay  the  within,  in  case  of  loss,  to  C  D," 
is  a  sufficient  assignment  of  an  insurance 
policy,  where  indorsed  on  the  policy,  which 
was  delivered  to  the  assignee.  Bergson 
V.  Builders'  Ins.  Co.,  38  Cal.  541.  A  nego- 
tiable promissory  note  can  be  transferred 
only  by  indorsement  and  delivery;  and 
such  indorsement  can  be  made  only  by 
writing  the  indorser's  name  on  the  back 
of  the  instrument  if  there  is  room,  and  if 
not,  then  on  a  paper  so  attached  as  in 
effect  to  become  a  part  of  it  (Hays  v. 
Plummer,  126  Cal.  107;  77  Am.  St.  Rep. 
153;  58  Pac.  447);  but  the  assignment  must 
be  delivered,  to  be  valid;  the  mere  signing 
of  an  assignment  is  insufficient  to  transfer 
title.  Ritter  v.  Stevenson,  7  Cal.  388.  An 
agreement  to  pay  the  debts  of  another,  not 
assented  to  by  the  creditor,  as  part  con- 
sideration, is  not  an  assignment,  pro  tanto, 
of  the  debts  to  the  creditor.  McLaren  v. 
Hutchinson,  18  Cal.  80. 

Notice  of  assignment.  Notice  of  assign- 
ment of  a  claim,  other  than  a  negotiable 
instrument  assigned  before  maturity,  is 
necessary  to  protect  the  assignee.  Doll  v. 
Anderson,  27   Cal.  248;   Bank  of  Stockton 


219 


ASSIGNMENT   OF   THING    IN   ACTION    NOT  TO   PREJUDICE    DEFENSE. 


§368 


V.  Jones,  65  Ca'i.  4;j7;  4  Pac.  418;  Hogan 
V.  Black,  66  Cal.  41;  4  Pac.  943;  Renton  v. 
Moiinier,  77  Cal.  449;  19  Pac.  820.  Thus, 
in  the  case  of  a  street  assessment,  settle- 
ment with  the  assignor  and  cancellation 
■of  the  assessment,  before  notice  of  assign- 
ment, is  a  good  defense  to  an  action  by 
the  assignee  (Hogan  v.  Black,  66  Cal.  41; 
4  Pac.  943) ;  and  where  a  promissory  note 
is  assigned  after  maturity,  payment  to  the 
•original  payee,  before  notice  of  the  assign^ 
ment,  discharges  the  maker.  Bank  of 
Stockton  V.  Jones,  65  Cal.  437;  4  Pac.  418. 
The  assignee  of  a  bill  of  goods  to  arrive, 
part  of  the  purchase  price  having  been 
paid,  and  the  balance  to  be  paid  upon  ar- 
rival, on  tendering  such  balance  within  a 
reasonable  time  after  arrival,  is  entitled 
to  possession  of  the  goods,  without  pre- 
vious notice  of  assignment.  Morgan  v. 
Lowe,  5  Cal.  325;  63  Am.  Dec.  132.  The 
■question  of  the  giving  and  the  sufficiency 
of  the  notice  is  for  the  jury.  Renton  v. 
Monnier,  77  Cal.  449;  19  Pac.  820.  Notice 
to  an  agent,  of  facts  arising  from  or  con- 
nected with  the  subject-matter  of  the 
agency,  is  notice  to  the  principal;  and  it 
is  constructive  notice  to  the  principal, 
when  the  notice  comes  to  the  agent  while 
lie  is  concerned  for  the  principal,  and  in 
the  course  of  the  very  transaction.  Bierce 
V.  Red  Bluff  Hotel  Co.,  31  Cal.  160.  But 
an  agent  has  only  such  authority  as  his 
principal  actually  or  ostensibly  confers 
■upon  him;  and  notice  to  the  agent,  of  facts 
not  arising  from  or  connected  with  the  sub- 
ject-matter of  his  agency,  is  not  notice 
to  the  principal,  unless  actually  communi- 
•cated  to  him.  Renton  v.  Monnier,  77  Cal. 
449;   19  Pac.  820. 

Action  by  an  assignee.  An  assignee  may 
■commence  an  action  in  his  own  name,  on 
contracts  and  things  in  action  assigned 
(Wheatley  v.  Strobe,  12  Cal.  92;  73  Am. 
Dec.  522;  Wiggins  v.  McDonald,  18  Cal. 
126;  Gradwohl  v.  Harris,  29  Cal.  150;  Grain 
■V.  Aldrich,  38  Cal.  514;  99  Am.  Dec.  423); 
•and  also  on  a  non-negotiable  instrument, 
indorsed  (Gushee  v.  Leavitt,  5  Cal.  160;  63 
Am.  Dec.  116;  Price  v.  Dunlap,  5  Cal.  483); 
and  on  a  warehouse  receipt,  assigned  in 
good  faith  and  in  the  ordinary  course  of 
iDusiness.  Davis  v.  Russell,  52  Cal.  611; 
28  Am.  Rep.  647.  The  assignee  of  a  non- 
negotiable  contract  is  the  proper  party 
plaintiff;  for  the  holder  of  a  non-negotia- 
lile  contract  is  presumiitively  the  owner, 
and,  as  the  real  party  in  interest,  is  enti- 
tled to  maintain  an  action  thereon  in  his 
■own  name  (Lucas  v.  Pico,  55  Cal.  126; 
Wheatley  v.  Strobe.  12  Cal.  92;  73  Am. 
Dec.  522;  and  see  Dana  v.  San  Francisco, 
19  Cal.  486;  People  v.  Gray,  23  Cal.  125; 
National  Bank  v.  Herold,  74  Cal.  603;  5 
Am.  St.  Rep.  476;  16  Pac.  507;  Woodward 
-V.  Brown,  119  Cal.  283;  63  Am.  St.  Rep. 
108;  51  Pac.  2,  542),  and  he  may  also 
bring    an    action    on    an    account    held    for 


collection,  where  he  has  the  legal  title,  and 
interest  to  the  extent  of  a  fee  or  compen- 
sation. Curtis  V.  Sprague,  51  Cal.  239; 
Toby  V.  Oregon  Pacific  R.  R.  Co.,  98  Cal. 
490;  33  Pac.  550;  Tuller  v.  Arnold,  98  Cal. 
522;  33  Pac.  445;  Greig  v.  Riordan,  99  Cal. 
316;  33  Pac.  913.  On  a  judgment  assigned 
for  value,  or  purciiascd  at  a  sale  under 
execution,  the  purchaser  takes  as  assignee 
(Moses  v.  Thorne,  6  Cal.  87;  Fore  v.  Man- 
love,  18  Cal.  436;  Low  v.  Burrows,  12  Cal. 
181);  but  it  is  otherwise  as  to  an  assign- 
ment after  verdict,  and  before  judgment, 
in  an  action  for  tort,  which  is  unassign- 
able. Lawrence  v.  Martin,  22  Cal.  173. 
The  assignment  of  a  claim  against  a  city, 
on  a  written  contract  for  street  improve- 
ments, is  not  a  mere  assignment,  but  trans- 
fers the  right  to  collect,  demand,  and  re- 
ceive all  moneys  due,  even  if  recovered  on 
quantum  meruit.  Wetmore  v.  San  Fran- 
cisco, 44  Cal.  294.  A  cause  of  action  based 
upon  the  breach  of  a  covenant  in  a  doeil, 
not  running  with  the  land,  does  not  pass 
by  a  conveyance  of  the  land.  Lawrence  v. 
Montgomery,  37  Cal.  183.  The  owner  of 
personal  property  wrongfully  detained  may 
assign  his  title  thereto,  and  the  assignee 
may  maintain  an  action  therefor.  Lazard 
V.  Wheeler,  22  Cal.  139.  A  claim  for  dam- 
ages for  trespass  on  land  is  assignable, 
and  the  assignee  may  maintain  an  action 
to  recover  same  (More  v.  Massini,  32  Cal. 
590),  and  an  agreement  to  pay  money  to  a 
party  to  an  action,  in  consideration  of  his 
withdrawal  of  his  defense  is  also  assign- 
able (Gray  v.  Garrison,  9  Cal.  325),  and 
a  contract  leasing  the  services  of  a  stallion 
is  assignable.  Doll  v.  Anderson,  27  Cal. 
248.  An  order  upon  a  third  person  for  the 
whole  amount  of  a  debt  owing  by  such 
third  person,  operates  as  an  assignment  of 
the  debt,  although  not  accepted  by  the 
debtor.  Wheatley  v.  Strobe,  12  Cal.  92;  73 
Am.  Dec.  522;  Pierce  v.  Robinson,  13  Cal. 
116;  Pope  V.  Huth.  14  Cal.  403;  Thomas 
V.  Rock  Island  etc.  Mining  Co.,  54  Cal.  578. 
Where  an  order  is  for  less  than  the  whole 
amount  of  the  claim,  but  is  made  with  the 
knowledge  and  consent  of  the  drawee,  the 
assignee  must  sue  alone  for  his  portion. 
McEwen  v.  Johnson,  7  Cal.  258;  Grain  v. 
Aldrich,  38  Cal.  514;  99  Am.  Dee.  423; 
Thomas  v.  Rock  Island  etc.  Mining  Co.,  54 
Cal.  578;  Grain  v.  Aldrich,  38  Cal.  514; 
99  Am.  Dec.  423;  Marziou  v.  Pioche,  8  Cal. 
522.  An  assignee,  holding  in  trust  for  an- 
other, may  maintain  an  action  in  his  own 
name.  Grant  v.  Heverin,  77  Cal.  263;  IS 
Pac.  647;  19  Pac.  493.  An  assignment  by 
a  trustee  will  make  the  assignee,  with 
notice  of  the  trust,  a  trustee,  the  same  as 
his  assignor,  and  he  may  maintain  suit  in 
his  own  name.  Grant  v.  Heverin'.  77  Cal. 
263;  18  Pac.  647;  19  Pac.  493.  Where  the 
assignment  of  a  debt  is  absolute,  the  as- 
signee may  recover  the  full  amount  there 
of,   notwithstanding  the  fact  that,  by  the 


§369 


PARTIES  TO   CIVIL  ACTIONS. 


220* 


assignment,  he  acquired  only  a  portion  of 
the  demand.  Ginocchio  v.  Amador  etc. 
Mining  Co.,  67  Cal.  493;  8  Pac.  29;  Grad- 
wohl  V.  Harris,  29  Cal.  150;  Grant  v.  Hev- 
erin,  77  Cal.  263;  IS  Pac.  647;  19  Pac.  493. 
In  an  action  against  an  assignee,  where 
the  consideration  passing  from  him  is  not 
equal  to  the  amount  of  the  paper,  the  re- 
covery is  limited  to  the  amount  actually 
paid  him.  Coye  v.  Palmer,  16  Cal.  158. 
The  assignee  of  a  judgment  cannot  sue 
upon  the  appeal  bond,  without  an  assign- 
ment thereof.    Moses  v.  Thorne,  6  Cal.  87. 

CODE  COMMISSIONERS'  NOTE.  1.  Pur- 
chasers and  assignees  of  judgments.  A  purchaser 
of  a  judgment  is  not  bound  to  inquire  into  latent 
equities  existing  in  the  hands  of  third  parties, 
and  is  not  affected  as  to  third  parties  by  frauds, 
of  which  he  had  neither  actual  nor  constructive 
notice.  Wright  v.  Levy,  12  Cal.  257.  The  rule 
caveat  emptor  applies  as  to  the  right  of  third 
parties  in  the  purchase  of  a  judgment,  as  well  as 
in  the  purchase  of  other  personal  property.  Mit- 
chell V.  Hocketf,  25  Cal.  544;  85  Am.  Dec.  151. 
A  purchaser  of  a  judgment  takes  it  subject  to  all 
set-offs  existing  at  time  of  purchase.  Hobbs  v. 
Duff,  23  Cal.  596;  Porter  v.  Liscom,  22  Cal.  430; 
83  Am.  Dec.  76;  McCabe  v.  Grey,  20  Cal.  509; 
Fore  V.  Manlove,  18  Cal.  436 

2.  Payment  by  a  garnishee.  If  the  judgment 
creditor  assigns  the  judgment,  and  the  judgment 
debtor,  without  notice  of  the  assignment,  after- 
wards pays  the  same  voluntarily  to  the  sheriff, 
by  reason  of  the  service  of  garnishee  process  upon 
him,  the  rights  of  the  assignee  are  not  affected, 
and  he  may  still  enforce  the  judgment.  Brown  v. 
Ayres.  33   Cal.  525;   91  Am.  Dec.  655. 

3.  Promissory  notes  assigned  as  collateral  se- 
curity. A  negotiable  promissory  note,  not  yet 
due,  and  taken  bona  fide  as  collateral  security 
for  a  previous  debt,  is  not  subject  to  a  defense 
existing  at  the  date  of  the  assignment  between 
the  original  parties.  Payne  v.  Benslev,  8  Cal.  260; 
68  Am.  Dec.  318;  Naglee  v.  Lyman,' 14  Cal.  450; 
Robinson  v.  Smith,  14  Cal.  94.  Where  there  is 
any  change  in  the  legal  rights  of  the  parlies  in 
relation  to  the  antecedent  debt,  the  creditor  tak- 
ing the  collateral  security  is  considered  as  a 
holder  for  value,  and  the  paper  not  subject'  to 
equities  existing  between  the  original  parties. 
Naglee  v.  Lyman,  14  Cal.  454.  But  where  A  gave 
his  note  to  B  in  order  that  B  might  raise  money 
on  it  as  collateral  security,  and  B  raised  the  money 


thereon,  and  then  fook  up  the  note  from  the- 
pledgees,  it  was  held  that  B  could  not  sue  on 
the  note,  as  it  had  answered  all  the  purposes  for 
which  it  was  given;  and  an  assignee  of  B,  taking 
the  note  after  maturity,  and  upon  no  new  con- 
sideration, took  it'  subject  to  the  same  defense. 
Coghlin  V.  May,  17  Cal.  515. 

4.  Notes  assigned  and  indorsed  after  maturity. 
An  indorsee,  after  maturity,  takes  the  same  in- 
terest that  the  indorser  had,  and  his  claim  is 
subject  to  the  same  defense.  Folsom  v.  Bartlett, 
2  Cal.  163.  If  a  party  takes  a  note  after  its 
maturity,  he  takes  it  subject  to  all  subsisting  equi- 
ties between  the  maker  and  the  payee,  but  not 
subject  to  such  as  subsisted  between  the  maker 
and  any  intermediate  holder.  Vinton  v.  Crowe, 
4  Cal.  309. 

5.  Transfer  of  check  after  dishonor.  As  to  all 
persons  except  a  bona  fide  holder  without  notice, 
a  check  given  for  a  gambling  debt  is  void.  If  it' 
was  presented  to  the  bank,  and  payment  refused, 
and  then  it  was  transferred,  after  dishonor,  the 
assignee  takes  it  subject  to  all  the  defenses  to 
which  it  was  subject  in  the  hands  of  the  first 
holder.  Puller  v.  Hutchings,  10  Cal.  526;  70  Am. 
Dec.  746. 

6.  Assignment  of  judgment.  The  assignee  of 
the  judgment  is  only  the  holder  of  an  equity, 
with  the  right  to  use  the  judgment  and  the  name 
of  the  plaintiff  to  enforce  it,  and  stands  in  the 
shoes  of  the  assignor  as  to  all  defenses  which 
existed  against  the  judgment  between  the  parties 
to  it.  It  is  like  a  note  assigned  after  due.  '\Vright 
V.  Levy,  12  Cal.  257;  Northam  v.  Gordon,  23  Cal. 
255  ;  Hobbs  v.  Duff,  23  Cal.  596. 

7.  What  assignments  equity  upholds.  Equity 
upholds  assignments,  not  only  of  choses  in  action, 
but  of  contingent  interests  and  expectations,  and 
of  things  which  have  no  actual  existence,  but  vest 
in  possibility.  See  note  to  preceding  section,  and 
the  cases  there  cited,  of  Pierce  v.  Robinson,  13 
Cal.  123;  Bibend  v.  Liverpool  etc.  Fire  and  Life 
Ins.  Co.,  30  Cal.  78;  Pope  v.  Huth,   14  Cal.  403. 

8.  Assigned  account.  As  to  defense  to  as- 
signed account,  see  Duff  v.  Hobbs,  19  Cal.  646. 

9.  Fraudulent  assignor.  A  fraudulent  assignor 
cannot  sue  to  compel  a  reassignment,  etc.  See- 
Gregory  V.  Haworth.  25  Cal.  653. 

10.  Notice  of  assignment.  As  to  when  notice 
of  assignment  is  not  necessary,  see  Morgan  v. 
Lowe,   5   Cal.   325;    63   Am.   Dec.    132. 

11.  Assignee  of  judgment.  An  assignee  of  a 
judgment  and  of  the  sheriff's  certificate  of  sale 
thereunder,  stands  in  the  same  position  as  his 
assignor  when  the  judgment  has  been  reversed, 
and  the  sale  will  be  set  aside,  where  no  loss  will 
occur  to  the  assignee.  Reynolds  v.  Harris,  14 
Cal.  667;  76  Am.  Dec.  459. 

§  369.  Executor,  trustee,  etc.,  may  sue  without  joining  the  persons  bene- 
ficially interested.  An  executor  or  administrator,  or  trustee  of  an  express 
trust,  or  a  person  expressly  authorized  by  statute,  may  sue  without  joining- 
with  him  the  persons  for  w^hose  benefit  the  action  is  prosecuted.  A  person, 
with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another,, 
is  a  trustee  of  an  express  trust,  within  the  meaning  of  this  section. 

Action  by  an  executor  or  administrator. 


Actions  by  executors  and  administrators. 

1.  Jointly  with  heirs  or  devisees,  for  posses- 
sion of  real  estate  or  quieting  title.  Post, 
§  1452. 

2.  Alone.     Post,  §§  1581-1583. 

3.  To  set  aside  fraudulent  deeds  made  by 
deceased.    Post,   §  1589. 

Legislation  §  369.  Enacted  March  11.  1873; 
based  on  Practice  Act,  §  6  (New  York  Code, 
§  113),  which,  as  amended  by  Stats.  1854,  Red- 
ding ed.  p.  59,  Kerr  ed.  p.  84,  read:  "An  exec- 
utor or  administrator,  or  trustee  of  an  express 
trust,  or  a  person  expressly  authorized  by  stat- 
ute, may  sue  without  joining  with  him  tlie  per- 
son or  persons  for  whose  benefit  the  action  is 
prosecuted.  A  trustee  of  an  express  trust  within 
the  meaning  of  this  section,  shall  be  construed 
to  include  a  person,  with  whom,  or  in  whose 
name,  a  contract  is  made  for  the  benefit  of  an- 
other." 


An  administrator  maj^  sue  in  his  own  name, 
as  trustee  of  an  express  trust  (Estate  of 
Callaghan,  119  Cal.  571;  39  L.  E.  A.  689; 
51  Pac.  860),  without  joining  the  heirs  or 
beneficiaries.  Eobertson  v.  Burrell,  110 
Cal.  568;  42  Pac.  1086.  This  is  an  excep- 
tion to  the  general  rule  laid  down  in  §  367, 
ante.  Tandy  v.  VVaesch,  154  Cal.  108;  97 
Pac.  69.  Where  an  insurance  policy  does- 
not  designate  any  beneficiary,  the  admin- 
istrator may  likewise  sue  for  insurance 
on  the  life  of  the  deceased  (Winterhalter 
V.  Workmen's  etc.  Ass'n,  75  Cal.  245;  17" 
Pac.  .1);    and,   being   entitled   to   the   pes- 


221 


EXECUTORS,  ETC.,  NEED  NOT  JOIN   BENEFICIARIES. 


§369 


session  of  the  real  estate  of  the  deceased, 
he  may  maintain  an  action  in  ejectment 
(Curtis  V.  Herrick,  14  Cal.  117;  7:?  Am. 
Dec.  632;  Tescheniacher  v.  Thompson,  18 
Cal.  11;  79  Am.  Dec.  151),  and  no  spe- 
cial authority  of  the  probate  court  is 
necessary  (Halleck  v.  Mixer,  16  Cal.  574), 
^nd  an  action  may  be  brought  at  any  time 
before  administration  is  had  or  decree  of 
distribution  is  made.  Curtis  v.  Sutter,  15 
Cal.  259. 

Trustee  of  an  express  trust.  This  sec- 
tion is  permissive  only,  and  does  not  ex- 
■clude  an  action  in  the  name  of  the  real 
party  in  interest.  Anglo-Californian  Bank 
V.  Cerf,  147  Cal.  384;  81  Pac.  1077.  The 
fact  that  the  trustee  can  maintain  a  suit 
does  not  preclude  the  beneficiary  from 
maintaining  a  like  suit.  Horseshoe  Pier 
«tc.  Co.  V.  Sibley,  157  Cal.  442;  108  Pac. 
308.  He  may  sue  alone,  but  he  is  not 
bound  to  do  so.  Tyler  v.  Houghton,  25 
Cal.  26;  Cerf  v.  Ashley,  68  Cal.  419;  9  Pac. 
658;  Walker  v.  McCu'sker,  71  Cal.  594;  12 
Pac.  723;  Winterhalter  v.  Workmen's  etc. 
Ass'n,  75  Cal.  245;  17  Pac.  1;  Patchett  v. 
Pacific  Coast  Ry.  Co.,  100  Cal.  505;  35 
Pac.  73;  Graham  v.  Franke,  4  Cal.  Unrep. 
899;  38  Pac.  455;  Robertson  v.  Burrell,  110 
Cal.  568;  42  Pac.  1086;  Kellogg  v.  King, 
114  Cal.  378;  55  Am.  St.  Eep.  74;  46  Pac. 
166.  Thus,  a  trustee,  to  whom  a  mortgage 
has  been  assigned  as  security  for  the  debt 
of  the  mortgagee,  may  be  joined  with  the 
mortgagee  as  a  party  plaintiff  in  an  action 
to  foreclose  the  mortgage;  and  if  not 
originally  so  made,  he  may  be  brought  in 
afterwards.  Cerf  v.  Ashley,  68  Cal.  419; 
9  Pac.  658.  That  the  trustee  would  be 
bound  to  bring  an  action  to  prevent  waste 
or  trespass  upon  land,  or  ejectment  to  re- 
cover its  possession  in  case  of  an  ouster, 
does  not  admit  of  doubt;  on  the  contrary, 
should  he  refuse  to  do  so,  his  cestui  que 
trust  may  bring  an  action  to  compel  him 
to  do  so:  such  being  the  case,  it  is  anom- 
alous to  say  that  he  cannot  apply  for 
other  relief,  if  necessary,  in  his  own  name. 
Tyler  v.  Houghton,  25  Cal.  26.  A  trustee 
to  whom  a  chose  in  action  has  been  trans- 
ferred for  collection  is,  in  contemplation 
of  law,  so  far  the  owner  that  he  may  sue 
on  it  in  his  own  name.  Toby  v.  Oresron 
Pacific  R.  R.  Co.,  98  Cal.  490;  33  Pac.  550. 
A  person  contracting  to  purchase  land  in 
fais  own  name,  although  acting  for  an- 
other, may,  without  joining  his  principal, 
sue  on  the  contract.  Tandv  v.  Waesch,  154 
Cal.  108;  97  Pac.  69.  The  first  clause  of 
this  section  has  no  application  where  a 
suit  is  brought  by  trustees,  which  involves 
their  relations  with  the  beneficiaries,  or 
the  relations  of  the  beneficiaries  among 
themselves:  it  applies  only  to  suits  against 
strangers,  which  affect  the  trust  property. 
Mitau  v.  Roddan,  149  Cal.  1;  6  L.  R.  A. 
(N.  S.)  275;  84  Pac.  145.  A  person  may 
be  a  trustee  in  a  transaction   wherein   he 


is  not  acting  in  his  own  interest  solely,  but 
for  others  associated  with  him,  and  where 
the  agreement  was  made  in  his  own  name 
for  the  benefit  of  himself  and  of  such  other 
persons.  McCowen  v.  Pew,  147  Cal.  299; 
81  Pac.  958.  A  trustee  of  an  express  trust 
is  a  person  with  whom  or  in  whose  name  u 
contract  is  made  for  the  benefit  of  another. 
Walter  v.  McCusker,  71  Cal.  594;  12  Pac. 
723;  People  v.  Stacy,  74  Cal.  373;  16  Pac. 
192;  Chin  Kem  You  v.  Ah  Joan,  75  Cal. 
124;  16  Pac.  705.  Where  one  party  is  in 
possession  of  money,  which,  in  equity  and 
good  conscience,  he  is  bound  to  pay  over, 
an  action  may  be  maintained  therefor,  and 
no  privity  is  required,  except  that  which 
results  from  one  person  having  money  of 
another,  which  he  conscientiously  has  no 
right  to  retain.  Kreutz  v.  Livingston,  15 
Cal.  344.  There  need  be  no  allegation  of 
trusteeship,  or  proof  of  it  at  the  trial. 
Corcoran  v.  Doll,  32  Cal.  82;  Walsh  v. 
Soule,  60  Cal.  443;  6  Pac.  82;  Lewis  v. 
Adams,  70  Cal.  403;  59  Am.  Rep.  423;  11 
Pac.  833;  Walker  v.  McCusker,  71  Cal.  594; 
12  Pac.  723.  The  principal  may  sue  on  a 
contract  executed  by  an  agent  without  dis- 
closing his  principal,  but  he  must  show  the 
agency,  and  the  power  of  the  agent  to 
bind  him.  Ruiz  v.  Norton,  4  Cal.  355;  60 
Am.  Dec.  618;  Thurn  v.  Alta  Telegraph 
Co.,  15  Cal.  472;  Swift  v.  Swift,  46  Cal. 
266.  A  contract,  partly  for  the  benefit  of 
one,  made  in  the  name  of  another,  makes 
the  latter  a  trustee  of  an  express  trust. 
Graham  v.  Franke,  4  Cal.  Unrep.  899;  38 
Pac.  455.  Where  incorporators  designate 
one  of  their  number  as  the  party  to  receive 
subscriptions  to  the  capital  stock,  they 
constitute  him  a  trustee  of  an  express 
trust.  West  v.  Crawford,  80  Cal.  19;  21 
Pac.  1123;  Winters  v.  Rush,  34  Cal.  136. 
The  directors  of  an  insane  asylum  may  sue 
as  trustees  of  an  express  trust  (Watt  v. 
Smith,  89  Cal.  602;  26  Pac.  1071),  as  may 
also  one  taking  a  note  or  a  mortgage  in 
his  own  name  for  the  benefit  of  another 
(White  v.  Allatt,  87  Cal.  245;  25  Pac.  420), 
and  also  one  coming  into  possession  with 
notice  of  trust  property.  Lathrop  v.  Bamp- 
ton,  31  Cal.  17;  89  Am.  Dec.  141.  A  party 
to  whom  an  undertaking  on  appeal  is 
given,  and  who  transfers  the  subject- 
matter  of  the  litigation,  becomes  the  trus- 
tee of  the  purchaser.  Walsh  v.  Soule,  66 
Cal.  443;  6  Pac.  82.  A  priest  of  a  Cali- 
fornia Mision,  occupying  a  position  anal- 
ogous to  that  of  a  sole  corporation  in 
England,  may  maintain  an  action  in  his 
own  name  to  recover  possession  of  Mision 
lands.  Santillan  v.  Moses,  1  Cal.  92.  A 
purchaser  at  an  execution  sale  for  the  bene- 
fit of  another,  and  taking  possession  in 
his  own  name,  is  trustee  of  an  express  trust 
(Walker  v.  McCusker,  71  Cal.  594;  12  Pac. 
723);  and  the  state  is  the  trustee  of  an 
express  trust,  where  a  bond  is  executed  in 
the   name   of   the  state  for  the   benefit  of 


369 


PARTIES  TO   CIVIL  ACTIONS. 


222 


a  county  (People  v.  Stacy,  74  Cal.  373;  16 
Pac.  192);  but  a  naked  agency  does  not 
make  the  agent  the  trustee  of  an  express 
trust  (Lineker  v.  Ayeshford,  1  Cal.  75; 
Swift  V.  Swift,  46  Cal.  266);  nor  is  an 
attorney  in  fact  the  trustee  of  an  express 
trust  (Powell  v.  Eoss,  4  Cal.  197);  but  an 
agent,  contracting  in  his  own  name  for  the 
benefit  of  his  principal,  the  agency  being 
known,  may  sue  in  his  own  name.  Salmon 
V.  Hoffman,  2  Cal.  138;  56  Am.  Dec.  322; 
Ord  V.  McKee,  5  Cal.  515;  Winters  v.  Rush, 
34  Cal.  136.  Where  an  agent  makes  an 
assignment  without  authority,  the  assignee 
cannot  maintain  an  action,  even  though 
the  assignment  was  subsequently  ratified 
by  the  principal.  Wittenbrock  v.  Bellmer, 
57  Cal.  12. 

Party  for  whose  benefit  action  is  prose- 
cuted. A  person  for  whose  benefit  a  con- 
tract is  made  may  sue  alone  as  the  real 
party  in  interest,  although  not  a  party  to 
it  (Summers  v.  Farish,  10  Cal.  347;  Wig- 
gins V.  McDonald,  18  Cal.  126;  Lewis  v. 
Covillaud,  21  Cal.  178;  McLaren  v.  Hutch- 
inson, 22  Cal.  187;  83  Am.  Dec.  59;  Morgan 
V.  Overman  Silver  Mining  Co.,  37  Cal.  534; 
Western  Development  Co.  v.  Emery,  61 
Cal.  611;  Sacramento  Lumber  Co.  v.  Wag- 
ner, 67  Cal.  293;  7  Pac.  705;  Malone  v. 
Crescent  City  Mill  etc.  Co.,  77  Cal.  38; 
18  Pac.  858;  Tyler  v.  Mavre,  95  Cal.  160; 
27  Pac.  160;  30  Pac.  196);  but  a  party 
benefited  incidentally  by  a  contract,  who 
is  not  a  party  to  it,  but  for  whose  benefit 
it  was  not  expressly  made,  cannot  main- 
tain suit  thereon  in  his  own  name.  Chung 
Kee  V.  Davidson,  73  Cal.  522;  15  Pac.  100. 

Person  expressly  authorized  by  statute. 
The  first  clause  of  this  section  raises  a  pre- 
sumption against  the  authority  of  any 
officer  to  sue,  unless  specially  authorized 
by  statute,  otherwise  the  officer  must  sue 
on  the  ground  that  he  is  a  trustee  of  an 
express  trust.  Watt  v.  Smith,  89  Cal.  602; 
26  Pac.  1071. 

CODE  COMmSSIONERS'  NOTE.  Stats.  1854, 
p.  64. 

1.  An  executor  or  administrator  may  sue  in  his 
own  name  as  executor  or  administrator.  Curtis  v. 
Herrick,  14  Cal.  117:  73  Am.  Dec.  632:  Tesche- 
macher  v.  Thompson,  18  Cal.  11;  79  Am.  Dec. 
151;  Halleck  v.  Mixer,  16  Cal.  579;  Curtis  v. 
Sutter,  15  Cal.  259;  Corcoran  v.  Doll,  32  Cal. 
82. 

2.  Dampges  for  death  of  decedent.  A  suit 
for  damages  for  the  death  of  decedent  can  be 
brought  only  by  the  administrator  or  executor. 
Kramer  v.  San  Francisco  etc.  R.  R.  Co.,  25  Cal. 
435. 

3.  Legal  title  must  be  represented,  to  recover 
lands.  But  a  person  havinK  the  equitable  title 
cannot  sue  to  recover  possession  of  lands.  Such 
action  must  be  in  the  name  of  the  party  holding 
the  legal  title:  thus,  where  a  prant  of  land  was 
made  to  P.,  which  was  confirmed  by  decree  of  the 
board  of  land  commissioners,  from  which  an  ap- 
peal was  taken  to  the  United  States  district  court. 
Pending  the  appeal,  P.  died,  leaving  a  will.  An 
order  was  made  in  the  United  States  court,  on 
petition  of  the  heirs  of  P..  and  the  executors  of 
the  estate,  substituting  the  heirs  in  the  proceed- 
ings in  place  of  P.,  and  the  court  then  confirmed 
the  land  to   the  heirs,   and  it  was   surveyed,   and 


the  surveyor  approved.  Subsequently,  E.  waa 
appointed  administrator  with  the  will  annexed. 
It  was  held  that  the  legal  title  was  in  the  heirs, 
and  that  the  administrator  could  not  maintain 
an  action  to  recover  possession  of  the  same.  Em- 
eric  V.  Penniman,  26  Cal.  122;  Salmon  v.  Sy- 
monds,  30  Cal.  301. 

4.  Foreclosure  of  a  mortgage  upon  real  prop- 
erty.   See  Burton  v.  Lies,  21  Cal.  87. 

5.  The  heir  must  not  be  joined  with  the  admia- 
istrator,  in  an  action  to  recover  a  debt  due  to 
the  decedent.  The  debts  vest  in  the  adminis- 
trator, and  not  in  the  heir,  for  it  is  personalty, 
and  not  realty.  The  administrator  has  alone  the 
right  to  maintain  the  action.  Grattan  v.  Wig- 
gins, 23  Cal.  IB. 

6.  Action  against  executors  and  administrators. 
It  was  held,  the  general  right  to  sue  an  admin- 
istrator was  taken  away  by  statute,  except  in  case 
of  presentation  and  rejection  of  the  account. 
Ellissen  v.  Halleck,  6  Cal.  386;  Falkner  v.  Fol- 
som's  Executors,  6  Cal.  412. 

7.  Administrator  a  proper  party  to  all  suits 
respecting  property  of  decedent.  The  adminis- 
trator has  possession  of  all  the  real  and  personal 
property  of  the  decedent,  and  is  therefore  a  proper 
party  to  any  suit  concerning  it.  Harwood  v. 
Marye,   8   Cal.   580;   Belloc  v.  Rogers,   9   Cal.   124. 

8.  Administrator  cannot  be  sued  on  a  claim 
until  the  same  has  been  presented  and  rejected. 
The  claimant  must  present  his  claim,  properly 
verified,  to  the  administrator,  that  the  adminis- 
trator and  the  probate  judge  may  determine 
whether  they  will  allow  or  reject  the  claim.  If 
the  claimant  does  not  thus  present  his  claim,  he 
can  maintain  no  action  thereon  against  the  ad- 
ministrator.   Hentsch  v.  Porter,   10  Cal.  559. 

9.  As  to  mortgages.  Hens,  etc.  Their  presen- 
tation, etc.  See  Belloc  v.  Rogers,  9  Cal.  123;  Carr 
V.  Caldwell,  10  Cal.  380;  70  Am.  Dec.  740; 
Hentsch  v.  Porter,  10  Cal.  559.  It  was  held  in 
Fallon  V.  Butler,  21  Cal.  24,  81  Am.  Dec.  140, 
that  an  action  could  be  maintained  against  an  ex- 
ecutor or  administrator  to  foreclose  a  mortgage 
given  by  the  decedent,  although  the  debt  secured 
had  been  presented  to  and  allowed  by  the  admin- 
istrator and  probate  judge,  if  the  action  is  only 
to  reach  the  mortgaged  property,  and  subject  it 
to  sale,  and  have  the  proceeds  applied  to  the  pay- 
merit  of  the  debt  secured,  and  no  judgment  is 
asked  against  the  general  estate  of  the  decedent; 
and  the  cases  of  Ellissen  v.  Halleck,  and  Falkner 
V.  Folsom's  Executors,  were  overruled.  It  waa 
further  held,  that  the  word  "claim"  did  not  em- 
brace mortgage  liens,  etc.  But  this  was  doubted, 
and  it  was  held  that  the  word  "claim"  was  broad 
enough  to  include  a  mortgage,  or  any  other  lien. 
Ellis  V.  Polhemus,  27  Cal.  353.  It  may  be  stated, 
therefore,  that  an  administrator  or  executor  can- 
not be  sued,  unless  the  claimant  present  his  claims 
for  allowance,  and  that  the  rule  applies  equally 
to  mortgages  and  other  liens  as  it  does  to  any 
other  claims.  See,  generally,  Ellis  v.  Polhemus, 
27  Cal.  353;  Willis  v.  Farley,  24  Cal.  491;  Fal- 
lon v.  Butler,  21  Cal.  24;  81  Am.  Dec.  140;  Ellis- 
sen V.  Halleck,  6  Cal.  386;  Falkner  v.  Folsom's 
Executors,  6  Cal.  412;  Hentsch  v.  Porter.  10  Cal. 
555;  Carr  v.  Caldwell,  10  Cal.  380;  70  Am.  Dec. 
740;   Belloc  v.  Rogers,  9  Cal.   123. 

10.  Administrator  cannot  be  joined  with  sur- 
vivor on  joint  obligation.  In  actions  upon  joint 
and  several  obligations,  the  administrator  cannot 
be  joined  with  survivor.  May  v.  Hanson,  6  Cal. 
642:   Humphreys  v.  Crane,  5  Cal.  173. 

11.  Trustees  of  express  trust.  See  Kreutz  v. 
Livingston,  15  Cal.  344,  and  cases  cited  therein. 
A  person  to  whom  a  note  is  payable  for  the  bene- 
fit of  another  is,  under  this  section,  a  trustee  of 
an  express  trust.    Winters  v.  Rush,  34  Cal.  136. 

12.  Attorney  in  fact  is  not  a  trustee.  One  who 
is  described  in  an  instrument,  whether  parol  or 
special,  as  the  attorney  in  fact  of  another,  does 
not  hold  the  character  of  trustee,  and  is  not  a 
necessary  party  to  represent  the  interest  of  the 
principal.  Our  statute  requires  every  action  to  be 
prosecuted  in  the  name  of  the  real  party  in  in- 
terest.   Powell  V.  Ross,  4  Cal.  198. 

13.  Guardian  is  not  trustee  of  express  trust. 
A  guardian  appointed  by  the  probate  court,  under 


223 


marrif:d  woman  as  party  to  action. 


§370 


the  act  which  provides  for  the  appointment  and 
prescribes  the  duties  of  guardians,  is  not  a  trus- 
tee of  an  express  trust,  within  the  meaning  of 
this  section.  Fox  v.  Minor,  :!2  Cnl.  llfi;  91  Am. 
Dec.  566. 

14.  Miscellaneous    actions    on    bonds   taken    in 


name  of  the  people.  Bonds  in  the  name  of  the 
people,  for  the  l)enefit  of  others,  should  be  prose- 
cuted in  the  name  of  the  part.v  in  interest,  al 
though  it  is  made  payable  to  the  people  of  the 
state.    Baker  v.  Bartol,  7  Cal.  551. 


§  370.  Married  woman  as  party  to  action.  When  a  married  woman  is  a 
party,  her  husband  must  be  joined  with  her,  except: 

1.  When  the  action  concerns  her  separate  propertj^  includino^  action  for 
injury  to  her  person,  libel,  slander,  false  imprisonment  or  malicious  prosecu- 
tion, or  her  right  or  claim  to  the  homestead  property,  she  may  sue  alone. 

2.  When  the  action  is  between  herself  and  her  husband,  she  may  sue  or 
be  sued  alone. 

3.  When  she  is  living  separate  and  apart  from  her  husband  by  reason  of 
his  desertion  of  her,  or  by  agreement,  in  writing,  entered  into  between  them, 
she  may  sue  or  be  sued  alone. 

Co.,  63  Cal.  450;  Baldwin  v.  Second  Street 
Cable  K.  R.  Co.,  77  Cal.  390;  19  Pac.  644. 
In  an  action  for  the  false  imprisonment  of 
the  wife,  although  the  recovery  would  be 
community  property,  the  wife  is  a  neces- 
sary party  (Gomez  v.  Scan! an,  155  Cal. 
528;  102  Pac.  12);  and  in  an  action  for 
malicious  prosecution,  the  wife  must  be 
joined  with  her  husband  as  a  party  plain- 
tiff (Williams  v.  Casebeer,  126  Cal.  77;  58 
Pac.  380;  McFadden  v.  Santa  Ana  etc.  Ey. 
Co.,  87  Cal.  464;  11  L.  R.  A.  252;  25  Pac. 
681) ;  and  in  an  action  against  the  wife 
for  personal  injuries,  the  husband  is  a 
necessary  party.  Henley  v.  Wilson,  137 
Cal.  273;  92  Am.  St.  Rep.  160;  58  L.  R.  A. 
941;  70  Pac.  21.  In  an  action  sounding  in 
tort  to  the  wife,  based  on  a  contract,  she 
is  properly  joined  as  plaintiff;  thus,  in  an 
action  against  a  steamer  for  a  breach  of 
contract  to  carry  the  wife  to  a  certain 
port,  the  alleged  breach  consisting  in  carry- 
ing her  to  another  port,  causing  her  deten- 
tion there,  and  consequent  illness  and  other 
injuries,  she  is  a  proper  and  necessary 
party.  Warner  v.  Steamship  Uncle  Sam, 
9  Cal.  697.  The  wife  may,  without  join- 
ing her  husband,  unless  objection  is  raised 
by  special  demurrer,  maintain  an  action 
against  a  person  who,  by  fraudulent  repre- 
sentations concerning  her  husband  brought 
about  her  separation  from  her  husband, 
to  recover  damages  resulting  therefrom. 
Work  V.  Campbell,  164  Cal.  343;  128  Pac. 
943.  The  objection  that  the  plaintiff  is 
a  married  woman,  and  that  her  husband 
should  be  joined  with  her,  is,  in  effect,  a 
plea  of  defect  of  parties  plaintiff;  such 
objection  is  waived  if  not  raised  by  de- 
murrer, where  the  defect  appears  upon  the- 
face  of  the  complaint,  or  by  answer,  where 
it  does  not.  Hayt  v.  Bentel,  164  Cal.  680; 
130  Pac.  432. 

Action  concerning  separate  property.  In 
an  action  concerning  her  sejiarate  estate, 
a  married  woman  may  sue  either  witliout 
her  husband  (Snyder  v.  Webb,  3  Cal.  83; 
Van  Maren  v.  Johnson,  15  Cal.  308;  Dun- 
can V.  Duncan,   6  Cal.  App.   404;   92  Pac. 


Contracts  of  married  women,  generally.  See 
Civ.    Code.  §  158. 

Sole  traders.     Post,  §§  1811  et  seq. 

Legislation  §  370.  1.  Enacted  March  11,  1873; 
basea,  except  subd.  3,  on  Practice  Act,  §  7  (New 
York  Code,  §  114),  as  amended  by  Stats.  1867- 
68,  p.  550;  subd.  3  being  based  on  Stats.  1869- 
70,  p.  226,  and  when  enacted  in  1872,  read, 
"3.  When  she  is  living  separate  and  apart  from 
her  husband,   she  may   sue  or   be  sued  alone." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
293 ;  this  amendment  differing  from  the  present 
(19i3)   as  noted  infra. 

3.  Amendment  by  Stats.  1901,  p.  126;  un- 
constitutional.    See   note  ante,  §  5. 

4.  Amended  by  Stats.  1913,  p.  217,  in  subd. 
1,  adding  "ineluding  action  for  injury  to  her  per- 
son, libel,  slander,  false  imprisonment  or  mali- 
cious prosecution." 

Married  woman  a  party,  joinder  of  hus- 
band. The  common-law  rule  required  the 
husband  to  join  the  wife  in  all  actions  in 
which  she  was  a  party,  plaintiff  or  tlefend- 
ant;  but  that  rule  is  altered  by  this  sec- 
tion, the  provisions  of  which  are  permis- 
sive, and  not  compulsory,  in  their  nature, 
and  for  that  reason  the  husband  may  be 
joined  with  the  wife  as  a  party,  even 
where  she  is  permitted  to  sue  or  to  be 
sued  alone.  Van  Maren  v.  Johnson,  15  Cal. 
308;  Calderwood  v.  Pyser,  31  Cal.  333; 
Corcoran  v.  Doll,  32  Cal.  82;  Snyder  v. 
Webb,  3  Cal.  83;  Marlow  v.  Barlew,  53 
Cal.  456.  The  object  of  this  section  is 
to  avoid  the  necessity  of  a  married  woman 
suing  by  prochein  ami.  Kashaw  v.  Kashaw, 
3  Cal.  312.  In  an  action  concerning  i^rop- 
erty  belonging  to  a  married  woman  as  a 
sole  trader,  her  husband  need  not  be 
joined.  Guttmann  v.  Seaunell,  7  Cal.  455. 
In  an  action  for  injuries  to  her  person,  be- 
fore the  amendment  of  1913,  the  wife 
could  not  sue  alone  (Tell  v.  Gibson,  66 
Cal.  247;  5  Pac.  223;  McFadden  v.  Santa 
Ana  etc.  Ry.  Co.,  87  Cal.  464;  11  L.  R.  A. 
252;  25  Pac.  681);  but  the  husband  merely 
a  formal  party;  the  right  of  action  vv^as 
the  wife's  (McFadden  v.  Santa  Ana  etc. 
Ry.  Co.,  87  Cal.  464;  11  L.  R.  A.  252;  25 
Pac.  681;  Neale  v.  Depot  Railway  Co.,  94 
Cal.  425;  29  Pac.  954);  the  husband  joins 
as  party  plaintiff,  only  because  the  com- 
mon-law rule  requiring  him  to  do  so  is  still 
in  force.    Matthew  v.  Central  Pacific  R.  R. 


§370 


PARTIES  TO   CIVIL   ACTIONS. 


224 


310;   Marlow   v.   Barlew,   53   Cal.   456),   or 
jointly  with  him.     Vau  Maren  v.  Johnson, 
15  Cal.  308.     In  an  action  for  money,  which, 
when  recovered,  will  be  the  wife's  separate 
property,   subject   to  the  management  and 
■jontrol  of  her  husband,  he  may,  but  need 
not  necessarily,  be  joined  with  her  as  plain- 
tiff (Van  Maren  v.  Johnson,  15  Cal.  308); 
and  in  an   action  for  the  purchase-money 
of  her  separate  property,  where  she  alleges 
that  she  had  never  given  her  consent,  either 
in  writing  or  orally,  that  the  money  might 
be  paid  to  her  husband,  although  his  non- 
joinder as  a  party  plaintiff  is  not  ground 
of  demurrer,  yet  the  fact  of  the  payment 
of  the  money  to  him  may  constitute  a  de- 
fense.   Kays"^  v.  Phelan,   19  Cal.   128.     The 
wife    is   the    proper    party    plaintiff    in    an 
action    to   foreclose   a   mortgage,   executed 
by  her  husband,  on  lands  claimed  by  her 
(Kohner   v.   Ashenauer,    17    Cal.   578);    the 
husband  is  not  a  necessary  party  defend- 
ant  in   an   action   against   the   wife,   upon 
an  express  contract  made  by  the  wife,  and 
the  judgment  will  bind  the  wife's  separate 
property    only.     Terry    v.    Superior    Court, 
110  Cal.   85; '42  Pac.  464.     The  wife  may 
bring  an   action   for   converted   goods,   her 
separate  estate  without  her  husband  being 
joined.    Bondy  v.   American   Transfer   Co., 
15  Cal.   App.   746;   115   Pac.  965.     A  judg- 
ment   against    the    wife    alone,    in    a    suit 
brought  against  her  in  her  maiden  name, 
to  quiet  title  to  property  acquired  in  such 
name,    is    not    void.     Emerv    v.    Kipp,    154 
Cal.  83;  129  Am.  St.  Rep.  141;  16  Ann.  Cas. 
792;   97  Pac.  17;   19  L.  R.  A.   (N.  S.)    983. 
The    husband    need    not    be    joined    in    an 
action    concerning    property    belonging    to 
the   wife    as    a    sole    trader    (Guttmann    v. 
Scannell,    7    Cal.    455) ;    nor    in    an    action 
brought  by  the  wife  to  quiet  title  to  her 
separate  property,  on  which  a  homestead 
has   been   declared.    Prey   v.    Stanlev,    110 
Cal.  423;  42  Pac.  908.     The  fact  that  the 
validity  of  the  homestead  is  involved  does 
not   affect   the   right    of    the   wife    to   sue 
alone.     MacLeod   v.   Moran,    11    Cal.    App. 
622;  105  Pac.  932.     A  tenant,  under  a  lease 
of    the    homestead,    executed    by    the    hus- 
band, cannot  hold  adversely  to  either  the 
husband  or  the  wife   (Mauldin  v.  Cox,  67 
Cal.  387;   7  Pac.   804);   but  the  statute  of 
limitations    may    be    pleaded    against    an 
action  by  the  wife,  where  the  facts  estab- 
lish adverse  possession.     Wilson  v.  Wilson, 
36    Cal.    447;    95    Am.    Dec.    194;    Kapp   v. 
Griffith,   42    Cal.    408.     The   earnings   of   a 
wife  for  her  labor  belong  to  her  husband, 
and  he  is  the  proper  party  to  sue  therefor, 
in   the  absence   of   an   agreement   between 
them   making   such   proceeds   her   separate 
property.    Moseley  v.  Heney,  66  Cal.  478; 
6  Pac.  134.     A  right  of  action  for  personal 
injury  is  community  property;   and  in  an 
action    to    recover    for    such    injury,    be- 
fore   the    amendment    of    1913,    the    hus- 
band was  a  necessary  party,  unless  his  wife 
was   living   separate   and   apart.     Lamb   v. 


Harbaugh,  105  Cal.  680;  39  Pac.  56.  The 
wife  cannot  be  sued  alone  in  an  action  con- 
cerning her  separate  property;  thus,  in  an 
action  to  foreclose  a  chattel  mortgage  on 
the  separate  property  of  the  wife,  the  hus- 
band is  a  necessary  party  defendant.  Mc- 
Donald V.  Porsh,  136  Cal.  301;  68  Pac.  817. 

Action  concerning  homestead  property. 
The  husband  is  not  a  necessary  party  in 
an  action  to  quiet  title  to  the  wife's  sepa- 
rate property,  on  which  a  homestead  has 
been  declared;  the  wife  may  sue  alone. 
Prey  v.  Stanley,  110  Cal.  423;  42  Pac.  908. 
The  phrase,  "or  her  right  or  claim  to  the 
homestead  property,"  was  not  in  the  origi- 
nal Practice  Act  section  before  the  amend- 
ment of  1867-78,  and  it  was  held  that  the 
wife  could  not  sue  alone  to  recover  the 
homestead  (Poole  v.  Gerrard,  6  Cal.  71;  65 
Am.  Dee.  481;  Revalk  v.  Kraemer,  8  Cal. 
66;  68  Am.  Dec.  304;  Cook  v.  Kliuk,  8  Cal. 
347;  Marks  v.  Marsh,  9  Cal.  96;  Moss  v. 
Warner,  10  Cal.  296;  Gee  v.  Moore,  14  Cal. 
472;  Guiod  v.  Guiod,  14  Cal.  506;  76  Am. 
Dec.  440),  as  the  husband  alone  had  title 
to  the  homestead  (Gee  v.  Moore,  14  Cal. 
472;  Bowman  v.  Norton,  16  Cal.  213;  Him- 
melmann  v.  Schmidt,  23  Cal.  117;  Brennan 
V.  Wallace,  25  Cal.  lOS;  Brooks  v.  Hyde, 
37  Cal.  366;  Johnston  v.  Bush,  49  Cal.  198), 
and  the  homestead  right  could  not  be  as- 
serted individually,  both  husband  and  wife 
being  required  to  join  (Cook  v.  Klink,  8 
Cal.  347),  and  the  homestead  right  could 
not  then  be  determined,  unless  both  hus- 
band and  wife  were  before  the  court.  Re- 
valk V.  Kraemer,  8  Cal.  66;  68  Am.  Dec. 
304.  But,  since  the  amendment  of  1867—68, 
the  wife  may  sue  or  be  sued  alone,  the  hus- 
band not  being  a  necessary  party  (Marlow 
V.  Barlew,  53  Cal.  456;  Hart  v.  Church, 
126  Cal.  471;  77  Am.  St.  Rep.  195;  58  Pac. 
910;  59  Pac.  296;  Prey  v.  Stanley,  110  Cal. 
423;  42  Pac.  90S);  and  an  action  to  recover 
the  homestead  may  be  maintained  by  the 
wife  in  her  own  name,  without  her  hus- 
band joining  as  a  party  plaintiff.  Mauldin 
V.  Cox,  67  Cal.  387;  7  Pac.  804.  The  com- 
plaint in  such  an  action  must  show  that 
the  land  sued  for  is  covered  by  a  valid 
declaration  of  homestead.  Tappendorff  v. 
Moranda,  134  Cal.  419;  66  Pac.  491.  Where 
a  homestead  was  claimed  by  the  husband, 
in  an  action,  in  which  he  was  the  sole  de- 
fendant, brought  to  foreclose  a  mortgage 
executed  by  him  alone,  after  the  marriage, 
the  rights  of  neither  husband  nor  wife  can- 
be  affected  by  the  proceedings,  the  wife 
not  being  a  party;  and  the  proceedings,  to 
be  conclusive  against  either,  must  include 
both.  Revalk  v.  Kraemer,  8  Cal.  66;  68 
Am.  Dec.  304;  Van  Reynegan  v.  Revalk, 
8  Cal.  75;  Cook  v.  Klink,  8  Cal.  347;  Marks 
v.  Marsh,  9  Cal.  96;  Moss  v.  Warner,  10 
Cal.  296. 

Action  between  husband  and  wife.  In 
such  an  action  the  wife  may  sue  alone,  and* 
it  is  not  necessary  to  introduce  other  par- 


225 


MARRIED   WOMAN   AS   PARTY  TO   ACTION. 


§370 


ties,  and  their  introductiou  caunot  affert 
her  rights.  Kashaw  v.  Kashaw,  3  Cal.  312. 
But  this  section  does  not  contemplate  ac- 
tions in  tort  by  one  spouse  against  the 
other;  it  applies  only  to  actions  for  the 
possession  of  property  rights.  Peters  v. 
Peters,  156  Cal.  32;  23  L.  R.  A.  (N.  S.)  (399; 
103  Pae.  219.  The  wife  may  maintain  a 
suit  against  her  husband,  on  a  promissory 
note  executed  by  him  to  her  before  their 
marriage.  Wilson  v.  Wilson,  3(3  Cal.  447; 
95  Am.  Dec.  194. 

Wife  living  separate  and  apart  from  her 
husband.  Where  the  wife  is  living  sepa- 
rate and  a]>art  from  her  husband,  she  may 
sue  alone  for  damages  for  injury  to  her 
person  (Andrews  v.  Runyon,  65  Cal.  629; 
4  Pac.  669;  Duncan  v.  Duncan,  6  Cal.  App. 
404;  92  Pac.  310;  Baldwin  v.  Second  Street 
Cable  R.  R.  Co.,  77  Cal.  390;  19  Pac.  644; 
Muller  V.  Hale,  138  Cal.  163;  71  Pac.  81); 
but  this  does  not  mean  a  mere  temporary 
absence  of  the  wife;  there  must  be  an 
abandonment  on  the  part  of  either  the  wife 
or  the  husband,  or  a  separation  which  was 
intended  to  be  final.  Tobin  v.  Galvin,  49 
Cal.  34;  Humphrey  v.  Pope,  122  Cal.  253; 
54  Pae.  847.  Where,  however,  a  wife,  who 
has  deserted  her  husband,  before  the  period 
has  expired  entitling  her  to  a  divorce,  in 
good  faith  offers  to  return  and  resume  the 
marital  relations,  to  which  the  husband 
does  not  consent,  she  is  entitled  to  sue 
alone.  Marlow  v.  Barlew,  53  Cal.  456; 
Muller  V.  Hale,  138  Cal.  163;  71  Pac.  81. 
An  action  may  be  maintained  by  the  wife 
for  injuries  sustained  by  the  enticing  away 
of  her  husband.  Humphrey  v.  Pope,  122 
Cal.  253;  54  Pac.  847.  Adverse  possession 
by  the  wife,  as  against  the  husband,  who 
has  deserted  her,  may  be  acquired;  and  as 
to  the  projjerty  so  acquired,  she  may  sue 
or  be  sued  alone.  Union  Oil  Co.  v.  Stew- 
art, 158  Cal.  149;  Ann.  Cas.  1912A,  567; 
110  Pac.  313.  If  a  married  woman,  not 
living  separate  and  apart  from  her  hus- 
band, is  sued  by  a  third  person  for  the 
alleged  conversion  of  a  fund,  the  plaintiff 
cannot  recover  where  the  husband  is  not 
joined  as  a  party  defendant.  Taylor  v. 
Darling,  19  Cal.  App.  232;  125  Pac.  249.  A 
married  woman,  deserted  by  her  husband, 
may  sue  alone  to  recover  damages  for  her 
personal  injuries,  although  such  damages, 
when  recovered,  are  community  property. 
Duncan  v.  Duncan,  6  Cal.  App.  404;  92  Pac. 
310. 

Action  concerning  community  property. 
In  a  suit  to  recover  money  lent  to  the 
wife  to  complete  the  purchase  of  what 
afterwards  becomes  community  property, 
though  the  title  is  taken  in  her  name,  she 
is  not  a  proper  party  defendant  (Althof 
V.  Conheim,  38  Cal.  230;  99  Am.  Dee.  363; 
Maelay  v.  Love,  25  Cal.  367;  85  Am.  Dec. 
133;  Brown  v.  Orr,  29  Cal.  120;  Smith  v. 
Greer,  31  Cal.  476);  and  in  an  action  to 
foreclose  a  mortgage  on  the  community 
1  Fair. — 15 


j>roperty,  the  husband  is  a  necessary  party. 
MeComb  v.  Spangler,  71  Cal.  418;  12  Pac. 
347. 

Judgments  against  married  woman.  See 
note,  55  Am.  Dec.  599. 

CODE  COMMISSIONERS'  NOTE.  Slats.  1868, 
p.  o.>0.  The  third  subdivision  is  taken  from  Stats. 
1870,  p.  226. 

1.  Construction  of  section.  Since  married 
women  can  sue  or  defend  alone,  they  are  respon- 
sible alone  for  costs,  etc.,  of  suit,  if  unsuccessful. 
Ihis  section  provides  in  what  cases  a  married 
woman  may  sue  and  be  sued,  without  imposing 
any  conditions  or  bestowing  any  privileges.  Thus, 
in  the  cases  mentioned,  she  is  put  upon  a  com- 
mon level  with  all  other  parties  to  actions,  no 
discrimination  being  made  in  her  favor  or  against 
her.  Thereafter  the  code  proceeds,  and,  without 
any  distinction  as  to  persons,  prescribes,  in  gen- 
eral terms,  applicable  to  all  alike,  the'  manner 
in  which  actions  shall  be  prosecuted,  and  the  na- 
ture and  form  of  the  judgments  which  shall  be 
rendered,  and  the  manner  in  which  the  same  shall 
be  e.\ocuted.  The  provisions  in  the  code  relat- 
ing to  judgments  do  not  declare  that  judgments 
may  be  rendered  in  favor  of,  but  not  against,  mar- 
ried women;  on  the  contrary,  thev  merely  pro- 
vide, in  general  terms,  when  the  plaintiff  or 
defendant  shall  have  judgment  and  e.\ecution, 
regardless  of  the  fact  whether  they  are  male  or 
female,  married  or  unmarried.  The  provisions 
of  the  Practice  Act",  allowing  a  married  woman 
to  sue  alone,  is  not  merely  the  adoption  of  the 
old  chancery  rule,  allowing  her,  in  certain  cases, 
to  sue  by  her  "next  friend."  It  is  something 
more,  for  it  allows  her  to  sue  alone.  The  office 
which  the  prochein  ami  performed  was  to  be  re- 
sponsible for  costs.  The  old  form  of  suing  by 
prochein  ami  is  abolished,  but  the  right  of  the 
opposite  party  to  recover  costs  is  unimpaired,  an<', 
as  a  necessary  consequence,  resulting  from  dis- 
))ensing  with  the  prochein  ami,  the  married 
woman  has  herself  been  charged  willi  the  respon- 
sibility which  previously  attached  to  him;  and 
there  is  no  good  reason  why  it  should  not  be  so. 
If  she  is  to  be  regarded  as  a  feme  sole  for  any 
purpose  connected  with  litigation,  she  ought  to 
be  so  regarded  for  all.  There  is  no  justice  in  ac- 
cording to  her  all  the  advantages  and  benefits  to 
be  gained  by  an  action,  and  at  the  same  time  ex- 
empting her  from  all  risk  and  responsibility. 
If  she  is  to  be  allowed  the  rights  of  a  suitor, 
she  must,  in  the  absence  of  an  express  provision 
to  the  contrary,  be  held  to  take  also  the  respon- 
sibilities of  a  suitor,  for  they  ought  not  to  be 
separated.  A  question  somewhat  analogous  arose 
in  Alderson  v.  Bell,  9  Cal.  321,  where  the  court 
said:  "In  this  state,  the  wife  can  appear  in  and 
defend  an  action  separately  from  her  husband. 
To  enable  her  to  do  so,  she  must  possess,  as  de- 
fendant, all  the  rights  of  a  feme  sole,  and  be 
able  to  make  as  binding  admissions  in  writing, 
in  the  action,  as  other  parties."  The  question 
has  arisen  in  New  York,  from  which  state  our 
system  is  borrowed,  and  has  been  there  deter- 
mined in  accordance  with  the  views  entertained 
by  us.  In  Moncrief  v.  Ward,  New  York  com- 
mon pleas  (reported  in  note  to  Baldwin  v.  Kim- 
mel,  16  Abb.  Pr.  364),  ihis  same  question  was 
involved,  and  it  was  held  that  an  execution  for 
costs  against  a  married  woman  could  be  enforced 
against  her  separate  estate,  whether  it  contains 
a  direction  to  that  effect  or  not.  Mr.  Justice 
Brady  said:  "Having  the  right  to  sue,  the  power 
must  be  employed  cum  onere.  The  statute  award- 
ing costs  does  not  exempt  a  married  woman, 
either  as  plaintiff  or  defendant,  from  the  pay- 
ment of  costs  when  unsuccessful.  There  is  no 
just  reason  why  she  should  be  thus  exempted. 
ilaving  the  status  of  a  feme  sole  in  the  courts,  if 
she  fail  in  her  action,  it  would  be  unjust  to  com- 
pel her  adversary  to  resort  to  extraordinary  modes 
to  collect  his  costs.  It  cannot  be  that  the  legis- 
lature intended  this.  It  is  true  that,  until  the 
amendment  of  the  code  (§  274)  in  1862,  the  legis 
lature  did  not,  in  express  terms,  provide  that 
costs    could    be    recovered    against    her,    but    such 


§§  371,  372 


PARTIES    TO   CIVIL   ACTIONS. 


226 


was  the  effect  of  the  statutes  then  in  existence, 
as  I  interpret  them.  That  amendment  merely 
declared  the  necessary  legal  conclusion  from  the 
existing  statutes;  no  class  of  suitors,  as  already 
suggested,  having  been  excepted  from  them.  The 
execution  to  compel  the  payment  of  such  costs 
must  be  enforced  against  her  separate  estate, 
whether  so  directed  or  not.  It  cannot  be  em- 
ployed against  the  property  of  another  person, 
per  se."     Leonard  v.  Townseiid.  26  Cal.  44ri. 

2.  Wife  may  choose  whether  she  will  sue  or 
defend  alone,  or  in  connection  with  her  husband. 
It  has  been  held  that  this  section  is  not  obliga- 
tory upon  the  wife  to  sue  or  defend  alone;  it 
confers  only  a  privilege  which,  in  many  instances, 
it  may  be  important  for  her  to  assert,  for  the 
protection  of  her  interests,  and  in  the  e.xercise 
uf  which  the  fullest  liberty  should  be  accorded  to 
her.  Van  Maren  v.  Johnson,  15  Cal.  311;  Kays 
V.  Phelan.   19  Cal.   128. 

3.  Suits  concerning  the  homestead  property. 
The  original  statute,  1851—52.  did  not  contain 
the  clause  "or  her  right  or  claim  to  the  home- 
stead property,"  and  the  phrase  was  added  by 
the  amendment  of  1867-68,  p.  550.  Until  after 
the  passage  of  the  amendment  the  court  had  held 
a  wife  could  not  sue  alone  to  recover  the  home- 
stead. See  Poole  v.  Gerrard,  6  Cal.  71:  65  Am. 
Dec.  481;  Revalk  v.  Kraemer,  8  Cal.  66,  68  Am. 
Dec.  304;  Cook  v.  Klink,  8  Cal.  347;  and  see 
Gee  V.  Moore,  14  Cal.  472,  overruling  these  cases 
in  some  particulars,  but  not  as  to  this  point,  it 
seems;  see  Guiod  v.  Guiod,  14  Cal.  507;  76  Am. 
Dec.  440;  see  also  Moss  v.  Warner,  10  Cal.  296. 
And  it  was  said  that  a  wife  had  no  right  in  the 
homestead,  independent  of  the  husband,  which 
she  could  enforce  against  his  consent,  and  that 
she  could  not  maintain  a  suit  for  it  in  her  own 
name  alone.  Guiod  v.  Guiod,  14  Cal.  506:  76 
Am.  Dec.  440.  And  in  a  suit  against  the  hus- 
band for  a  foreclosure  of  a  mortgage  upon  the 
homestead,  it  has  been  held  that  when  the  hus- 
band appears  and  defends  alone,  any  decision  the 
court  could  make  in  regard  to  the  homestead  could 
not  affect  the  rights  of  the  wife,  she  not  being 
a  party  to  the  suit.  And  such  is  the  nature  of 
the  title  to  the  homestead,  that  the  rights  of  the 
husband  cannot  be  affected  without  affecting 
those  of  the  wife  also.  If  no  binding  decision 
can  be  made  when  one  of  them  only  is  a  party, 
then  it  is  idle  for  the  court  to  make  any  decision 
at  all  in  such  a  case.    Marks  v.  Marsh,  9  Cal.  97. 

§  371.  Wife  may  defend,  when.  If 
the  wife  msiy  defend  for  her  own  right, 
she  may  defend  for  his  right  also. 

Legislation  §  371.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  8,  which  read,  "If  a 
husband  and  wife  be  sued  together,  the  wife  may 
defend  for  her  own  right." 

Defense  liy  wife  to  action  against  her- 
self and  husband.  A  wife  r-an  appear  in 
and  defend  an  action  separately  from  her 
husband  (Alderson  v.  Bell,  9  Cal.  315);  and 
where  sued  with  her  husband,  she  pleads 
a  special  defense,  she  may  defend  as  if  she 
were  sued  separately.  Deuprez  v.  Deuprez, 
5  Cal.  387.  Where  the  wife  is  a  necessary 
party  to  the  full  adjustment  of  the  contro- 
versy, she  should  be  allowed  to  intervene 
(Sargent  v.  Wilson,  5  Cal.  504),  and  to  file 
a  separate  answer,  where  the  action  con- 
cerns   the    homestead    property.     Moss    v. 


4.  Separate  property.  Snyder  v.  Webb,  3  Cal. 
83.  When  the  action  concerns  the  wife's  sepa- 
rate property,  it  has  been  held  she  may  seek  the 
aid  of  the  court  either  with  or  without  her  hus- 
band. Van  Maren  v.  Johnson,  15  Cal.  311:  Kays 
V.  Phelan,  19  Cal.  128;  Calderwood  v.  Pyser,  31 
Cal.  333:   Corcoran  v.  Doll,  32  Cal.  82. 

5.  Foreclosure  of  mortgage  on  wife's  separate 
property.  In  an  action  for  the  foreclosure  of 
mortgage  executed  by  the  husband,  if  the  wife 
alleges  the  land  was  her  separate  property  by  vir- 
tue of  a  previous  conveyance  from  the  husband 
to  her,  she  may  be  made  a  defendant.  Kohner 
V.  Ashenauer,  17  Cal.  578. 

6.  Action  between  wife  and  husband.  Kashaw 
V.  Kashaw,  3  Cal.  312. 

7.  Foreclosure  of  mortgage  executed  by  both 
husband  and  wife.  If  a  wife  executes  a  mort- 
gage with  her  husband,  she  may  be  made  a  party 
defendant  along  with  her  husband  in  an  action 
to  foreclose  the  same,  without  alleging  her  in- 
terest in  the  property  mortgaged.  Anthony  v. 
Nye,  30  Cal.  401. 

8.  Action  for  damages  for  injury  to  the  person 
of  the  wife.  Husband  and  wife  must  be  joined. 
Sheldon  v.  Steamship  Uncle  Sam.  18  Cal.  526;  79 
Am.  Dec.  193. 

9.  Partnership  obligation  contracted  by  wife 
and  third  parties  previous  to  marriage.  The  hus- 
band of  a  married  woman  is  properly  joined  with 
her  as  a  defendant  in  an  action  upon  a  partner- 
ship obligation,  contracted  by  the  wife  and  a 
third  person,  as  partners,  previous  to  the  mar- 
riage, and  while  she  was  a  feme  sole.  Keller  v. 
Hicks,  22  Cal.  457;   83  Am.  Dec.  78. 

10.  When  the  wife  lives  apart  from  husband. 
The  third  subdivision  is  taken  from  the  statutes 
of  1870,  p.  226. 

11.  Sole  trader.  In  a  suit  against  a  married 
woman,  who  is  a  sole  trader,  on  a  contract  made 
by  her,  she  must  be  sued  alone.  McKune  v.  Mc- 
Garvey,  6  Cal.  497.  And  an  action  may  be  main- 
tained by  a  married  woman,  who  is  a  sole  trader, 
in  her  own  name,  without  joining  her  husband. 
Guttmann  v.  Scannell,  7  Cal.  455;  see  also  Cam- 
den V.  Mullen.  29  Cal.  564. 

12.  Damages  to  community  property.  In  an 
action  for  damages  to  the  community  property, 
the  husband  must  sue  alone :  the  wife  cannot  be 
made  a  party.  Sheldon  v.  Steamship  Uncle  Sam, 
18  Cal.  526;"  79  Am.  Dec.  193;  Barrett  v.  Tewfcs- 
bury,  18  Cal.  334. 

a  husband  and  wife  be  sued  together, 
and  if  the  husband  neglect  to  defend, 


Warner,  10  Cal.  296.  If  a  feme  sole  sub- 
sequently marries,  her  husband  should  be 
made  defendant  in  a  .supplemental  plead- 
ing setting  up  the  fact  of  the  marriage. 
Van  Maren  v.  Johnson,  15  Cal.  308. 

CODE  COMMISSIONERS'  NOTE.  The  words 
"and  if  the  husband  neglect,"  etc.,  are  added  to 
the  original  provision  of  §  8  of  the  Practice  Act. 

1.  The  wife  can  appear  in  and  defend  an  ac- 
tion separately  from  her  husband.  To  enable  her 
to  do  so,  she  must  possess,  as  defendant,  all  the 
rights  of  a  feme  sole,  and  be  able  to  make  as 
binding  admissions  in  writing  in  the  action  as 
other  parties.    Alderson  v.  Bell,  9  Cal.  315. 

2.  The  wife  may  defend  for  her  own  right,  as 
well  when  sued  jointly  with  her  husband  as  if  the 
trial  were  separate;  her  defense,  if  a  separate 
one,  could  come  in,  in  either  case.  See  Deuprez 
V.  Deuprez,  5  Cal.  388. 


§  372.  Appearance  of  infant,  etc.,  by  g-iiardian.  May  compromise.  When 
an  infant,  or  an  insane  or  incompetent  person  is  a  party,  he  must  appear 
either  by  his  general  guardian  or  by  a  guardian  ad  litem  appointed  by  the 
court  in  which  the  action  is  pending,  in  each  ease.     A  guardian  ad  litem  may 


227 


APPEARANCE  OF  INFANT,  ETC.,  BY  GUARDIAN. 


§372 


§  3- 


Appointment  of  guardian  ad  litem. 


See  post, 
post, 


be  appointed  in  any  case,  when  it  is  deemed  by  the  eourt  in  which  the  action 
or  proceeding  is  prosecuted,  or  by  a  judge  thereof,  expedient  to  represent 
the  infant,  insane,  or  incompetent  person  in  the  action  or  proceeding,  not- 
withstanding he  may  have  a  general  guardian  and  may  have  appeared  by 
him.  The  general  guardian  or  guardian  ad  litem  so  appearing  for  any  in- 
fant, or  insane  or  incompetent  person  in  any  suit  shall  have  power  to  com- 
promise the  same  and  to  agree  to  the  judgment  to  be  entered  therein  for 
or  against  his  ward,  subject  to  the  approval  of  the  court  in  which  such  suit 
is  pending. 

for  him,  is  not  for  that  reason  void.  Chikls 
V.  Lanterman,  103  Cal.  387;  42  Am.  St. 
Rep.  121;  37  Pac.  3S2;  Emerie  v.  Alvarado, 
64  Cal.  ^529;  2  Pac.  418.  Under  this  section 
and  §  373,  post,  upon  the  application  of  a 
relative,  where  a  plaintiff  sues  to  annul  his 
marriage  on  the  ground  of  mental  incom- 
petency at  the  time  of  the  marriage,  a 
guardian  ad  litem  may  be  appointed  for 
him,  the  evidence  tending  to  show  incom- 
petency. Dunphy  v.  Dunphy,  161  Cal.  380; 
Ann.  Cas.  1913B,  1230;  38  L.  E.  A.  (N.  S.) 
818;  119  Pac.  512.  An  allowance  for  minor 
children  may  be  made  in  a  probate  pro- 
ceeding, on  the  petition  of  any  person,  or 
by  the  court  of  its  own  motion;  it  is  imma- 
terial whether  or  not  a  guardian  ad  litem 
is  appointed.  Estate  of  Snowball,  156  Cal. 
235;  104  Pac.  446. 

Incompetent  person  a  party.  An  action 
must  be  brought  against  an  incompetent 
person,  not  against  his  guardian:  there 
is  no  obligation  on  the  part  of  the  latter 
to  discharge  the  obligation  (Justice  v.  Ott, 
87  Cal.  530;  25  Pac.  691;  Fox  v.  Minor,  32 
Cal.  Ill;  91  Am.  Dec.  566);  and  the  in- 
competent, being  the  aggrieved  party,  may 
appeal  from  an  order  binding  the  guardian. 
In  re  Moss,  120  Cal.  695;  53  Pac.  357. 

General  guardian.  An  infant  may  ap- 
pear by  his  general  guardian  (Gronfier  v. 
Puymirol,  19  Cal.  629;  Smith  v.  McDonald, 
42  Cal.  484;  Emerie  v.  Alvarado,  64  Cal. 
529;  2  Pac.  418;  Western  Lumber  Co.  v. 
Phillips,  94  Cal.  54;  29  Pac.  328);  and  his 
appearance  is  sufficient  to  give  the  court 
jurisdiction  of  an  infant  defendant.  Rich- 
ardson V.  Loupe,  80  Cal.  490;  22  Pac.  227; 
Western  Lumber  Co.  v.  Phillips,  94  Cal.  54; 
29  Pac.  328. 

Guardian  ad  litem.  Where  the  interest 
of  the  infant  requires  it,  the  court  will 
appoint  a  guardian  ad  litem;  but  it  cannot 
do  so  until  the  infant  has  been  brought 
into  court  by  summons.  Gray  v.  Palmer, 
9  Cal.  616;  Johnson  v.  San  Francisco  Sav- 
ings Union,  63  Cal.  554;  MeCloskey  v. 
Sweeney,  66  Cal.  53;  4  Pac.  943.  Service 
upon  the  general  guardian  of  an  infant 
under  fourteen  years  of  age  is  sufficient 
service  upon  the  infant  (Richardson  v. 
Loupe,  80  Cal.  490;  22  Pac.  227);  and  the 
appearance  of  a  general  guardian  is  suffi- 
cient to  give  the  court  jurisdiction  of  the 
person   of   an   infant   defendant;    the   fact 


Guardian     and     ward,     generally.      See 
§§  1747    et   seq. ;    Civ.    Code,  §§  2.36   et   seq. 

Insane  or  incompetent  person.  Civ.  Code, 
§§  36,  38-42.      Guardian  of.     Post,  S§  1763-1766. 

Minors  and  persons  of  unsound  mind,  their 
rights  and  liabilities.    Civ.  Code,  §§33  et  seq. 

Legislation  §  372.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  9  (New  York  Code, 
§  115),  which  read:  "When  an  infant  is  a  party 
he  shall  appear  by  guardian,  who  may  be  ap- 
pointed by  the  court  in  which  the  action  is  prose- 
cuted, or  by  a  judge  thereof,  or  a  county  judge." 
When  enacted  in  1872,  §  372  read:  "When  an 
infant  is  a  party  he  must  appear  by  his  gen- 
eral guardian,  if  he  has  one;  and  if  not,  by  a 
guardian  who  may  be  appointed  by  the  court  in 
which  the  action  is  prosecuted,  or  by  a  judge 
thereof,   or  a  county  judge." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
294,  to  read:  "When  an  infant  is  a  party,  he 
must  appear  either  by  his  general  guardian,  or 
by  a  guardian  appointed  by  the  court  in  which 
the  action  is  prosecuted,  or  by  a  judge  thereof. 
A  guardian  may  be  appointed  in  any  case,  when 
it  is  deemed  by  the  court  in  which  the  action  is 
prosecuted,  or  by  a  judge  thereof,  expedient  to 
represent  the  infant  in  the  action,  notwithstand- 
ing he  may  have  a  general  guardian,  and  may 
have  appeared  by  him." 

3.  Amended  by  Code  Amdts.  1S80,  p.  63, 
and  then  contained  the  first  two  sentences  of  the 
present  section. 

4.  Amended  by  Stats.  1913,  p.  350,  adding 
the  final  sentence. 

Where  infant  is  a  party.  An  infant, 
party  to  an  action,  must  appear,  prosecute, 
and  defend  by  his  general  guardian,  or 
guardian  ad  litem.  Crawford  v.  Neal,  56 
Cal.  321;  Estate  of  Cahill,  74  Cal.  52;  15 
Pac.  364;  Childs  v.  Lanterman,  103  Cal. 
387;  42  Am.  St.  Rep.  121;  37  Pac.  382.  The 
reason  for  this  is  the  supposed  want  of 
discretion  in  the  infant,  and  his  inability 
to  bind  himself,  or  to  appoint  an  attorney 
to  r.epresent  him.  Estate  of  Cahill,  74  Cal. 
52;  15  Pac.  364.  But  a  judgment  is  not 
absolutely  void,  where  no  guardian  is  ap- 
pointed; for  the  failure  to  appoint  a  guar- 
dian does  not  go  to  the  jurisdiction  of  the 
court;  it  is  merely  an  irregularitv.  Estate 
of  Cahill,  74  Cal.  52;  15  Pac.  364;  Foley 
v.  California  Horseshoe  Co.,  115  Cal.  184; 
56  Am.  St.  Rep.  87;  47  Pac.  42.  There  is 
a  distinction  to  be  observed,  and  with  good 
reason,  between  an  action  brought  by  an 
infant  and  one  taken  in  hostilitv  to  him. 
Estate  of  Cahill,  74  Cal.  52;  15' Pac.  364. 
The  supreme  court  has  held,  however,  that, 
notwithstanding  the  provisions  of  this  sec- 
tion, a  judgment  against  an  infant,  in  a 
cause  in  which  no  guardian  was  appointed 


§373 


PARTIES  TO   CIVIL  ACTIONS. 


228 


that  no  guardian  ad  litem  was  appointed 
for  him  is  immaterial.  Western  Lumber 
Co.  V.  Phillips,  94  Cal.  54;  29  Pac.  32S;  and 
see  Gronfier  v.  Puvmirol,  19  Cal.  629;  Smith 
V.  McDonald,  42  Cal.  4S4;  Hill  v.  Den,  54 
Cal.  6.  Where  infants  become  necessary 
parties  during  the  pendency  of  partition 
proceedings,  as  the  successors  of  a  deceiased 
defendant,  they  need  not  be  served  with 
summons:  they  may  be  brought  in  on  mo- 
tion, by  order  of  the  court.  Emeric  v.  Al- 
varado'.  64  Cal.  529;  2  Pac.  418;  Stuart  v. 
Allen,  16  Cal.  473;  76  Am.  Dee.  551.  There 
is  no  provision  for  the  time  of  appointment 
of  a  guardian  ad  litem.  Stuart  v.  Allen,  16 
Cal.  473;  76  Am.  Dec.  551. 

Appointment  and  powers  of  guardian  ad  litem. 

See  note  9  7  Am.   St.   Rep.   995. 

Right  of  parent  or  person  in  loco  parentis  to 
compromise  child's  cause  of  action.  See  note  17 
Ann.   Cas.    608. 

Necessity  for  appointment  of  guardian  ad  litem 
■when  infant  defendant  has  general  guardian. 
See  note  Ann.   Cas.   1912D.   363. 

Guardian  ad  litem.    See  note  32  L.  R.  A.  683. 

Control  of  guardian  ad  litem  over  action.  See 
note   16   L.  R.   A.   50  7. 

CODE  COMMISSIONERS'  NOTE.  1.  Appear 
by  general,  not  special,  guardian.  "The  infant 
must  appear  by  his  general  guardian,  if  he  has 
one."  Spear  v.  Ward,  20  Cal.  660.  But  it  has 
been  held,  that,  although  the  infant  may  have  a 
general  guardian,  yet  the  court  will  appoint  a 
euardian  ad  litem  if  the  interests  of  the  infant 
require  it.  Gronfier  v.  Puymirol,  19  Cal.  629. 
The  words,  "his  general  guardian,  if  he  has  one  ; 
and  if  not,  then  by,"  etc.,  were  not  in  the  sec- 
tion when  the  above  decision  was  rendered. 

2.  Guardian  appointed  by  will  may  act  before 
letters  issue.  If  a  guardian  is  appointed  by  the 
will,  it  is  not  necessary  that  any  letters  of  guar- 
dianship should  issue  to  authorize  the  guardian  to 
act.  The  order  of  appointment,  when  made  by 
the  probate  court,  constitutes  the  authority  of  the 
guardian,  and  the  will,  in  cases  of  testamentary 
appointment,  that  of  guardians  in  other  cases. 
Xorris  v.   Harris,   15   Ca'.   256. 

3.  When  married  women  regarded  as  infants, 
when  under  age.  It  has  been  held  that,  in  some 
instances,    the    disability    of    infancy    attaches    as 


well   to   married  women   under  age   as  it  does   to 
other  infants.     See  Magee  v.  Welsh,    18   Cal.   159. 

4.  Action  in  name  of  infant  for  money  due 
him.  In  an  action  to  recover  money  due  to  an 
infant,  the  action  must  be  brought  by  the  guardian 
in  the  name  of  ihe  infant,  and  not  in  the  name 
of  the  guardian.  Fox  v.  Minor,  32  Cal.  Ill;  91 
Am.  Dec.  566. 

5.  Guardian  ad  litem  not  appointed  until  in- 
fant is  brought  into  court.  The  court  has  no 
right  to  appoint  a  guardian  ad  litem,  until  the 
infant  is  pronerly  brought  into  court.  Gray  V. 
Palmer,  9  Cal.  638. 

6.  Guardian  ad  litem  limited  in  authority.  A 
guardian  ad  litem  has  only  a  special  and  limited 
authority,  and  cannot  go  beyond  it.  Where  guar- 
dians ad  litem  were  appointed  to  represent  an  in- 
fant in  a  suit  for  the  partition  of  real  property, 
they  had  no  authority  to  give  and  gave  no  assent 
to  a  decree,  nor  for  partition  or  division  of  a 
common  estate,  but  for  a  foreclosure  of  all  claim 
of  the  infants,  and  the  quieting  against  Ihem  of 
the  plaintiff's  title  to  the  particular  piece  of  land 
mentioned  in  the  decree.  The  court  might  as  well 
have  entered  a  decree  affecting  their  title  of  de- 
claring void  their  claim  to  any  other  property. 
The  infants  were  not  before  the  court  for  any 
such  purpose,  and  the  appjintment  of  the  guar- 
dian being  a  special  power  exercised  by  the  court, 
and  giving  only  special  and  limited  authority  to 
the  guardians,  it  would  seem  that  their  acts,  so 
far  as  transcending  this  authority,  would  be  void. 
Waterman  v.  Lawrence,  19  Cal.  217;  79  Am.  Dec. 
212. 

7.  Infant's  day  in  court  after  lie  attains  his 
majority,  etc.  At  common  law  when  the  heir 
was  sued  at  law,  upon  a  specialty  obligation  of 
the  ancestor  chargeable  upon  the  inheritance,  he 
might  pray  that  "the  parol  demur" — that  is  to 
say,  that  the  pleadings  or  proceedings  be  stayed 
until  he  should  attain  his  majority.  This  privi- 
lege was  based  on  feudal  reasons,  and  was  con- 
fined to  heirs.  It  did  not  even  extend  to  devisees. 
"Courts  of  equity  did  not,  however,  confine  this 
snecies  of  protection  to  cases  precisely  similar  to 
those  in  which  the  parol  could  demur  at  law:  but 
by  a  kind  of  analog}'  they  adopted  a  second  rule, 
by  which,  in  cases  of  foreclosure  and  partition, 
and  in  all  such  cases  in  which  the  real  estate  of 
an  infant  was  to  be  sold  or  conveyed  under  a  de- 
cree of  the  court,  and,  consequently,  the  execu- 
tion of  the  conveyance  was  necessarily  deferred, 
the  infant  had  an  opportunity,  after  attaining 
twenty-one,  to  show  cause  against  the  decree. 
For  this  purpose  a  provision  was  inserted  in  the 
decree."  Joyce  v.  McAvoy,  31  Cal.  279,  89  Am. 
Dec.  172,  and  cases  there  cited. 


§  373.  Guardian,  how  appointed.  AYhen  a  guardian  ad  litem  is  appointed 
by  the  court,  he  must  be  appointed  as  follows : 

1.  "When  the  infant  is  plaintiff,  upon  the  application  of  the  infant,  if  he 
be  of  the  age  of  fourteen  years,  or  if  under  that  age,  upon  the  application 
of  a  relative  or  friend  of  the  infant. 

2.  When  the  infant  is  defendant,  upon  the  application  of  the  infant,  if 
he  be  of  the  age  of  fourteen  years,  and  apply  wdthin  ten  days  after  the 
service  of  the  summons,  or  if  under  that  age.  or  if  he  neglect  so  to  apply, 
then  upon  the  application  of  a  relative  or  friend  of  the  infant,  or  of  any 
other  party  to  the  action. 

3.  When  an  insane  or  incompetent  person  is  a  party  to  an  action  or  pro- 
ceeding, upon  the  application  of  a  relative  or  friend  of  such  insane  or  in- 
competent person,  or  of  any  other  party  to  the  action  or  proceeding. 


Legislation  g  373.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  10  (Xew  York  Code, 
§  116),  which  read:  "The  guardian  shall  be  ap- 
pointed as  follows:  1.  When  the  infant  is  plain- 
tiff, upon  the  application  of  the  infant,  if  he  be 
of  the  age  of  fourteen  years;  or  if  under  that 
age,  upon  the  application  of  a  relative  or  friend 
of  ihe  infant;   2.   When  the  infant  is  defendant, 


upon  the  application  of  the  infant,  if  he  be  of 
the  age  of  fourteen  years,  and  apply  within  ten 
days  after  the  service  of  the  summons;  if  he  be 
under  the  age  of  fourteen,  or  neglect  so  to  apply, 
then  upon  the  application  of  any  other  party  to 
the  action,  or  of  a  relative  or  friend  of  the  in- 
fant." When  enacted  in  1872  the  introductory 
paragraph  was   changed  to  read,    "When  a  guar- 


229 


SEDUCTION — UNMARRIED  FEMALE  OR  PARENT  MAY  SUE.       §§  374,  375 


dian   is   appointed   by    the   court,   he  must  be   ap- 
pointed  as   follows,"    this    bcins   tho   onlv    change. 
3.    Amended  by  Code    Amdts.  1880.  p".  63. 

Appointment  of  guardian  ad  litem.  The 
appointment  of  a  guardian  ad  litem  may 
be  made  ex  parte.  C^rawford  v.  Neal,  5(i 
Cal.  321;  Emeric  v.  Alvarado,  64  Cal.  529; 
2  Pac.  418;  Granger  v.  Shorriff,  133  Cal. 
416;  65  Pac.  873.  No  notice  of  the  appli- 
cation is  necessary.  Granger  v.  SherriflP, 
133  Cal.  416;  65  Pac.  873.  It  may  be  made 
ore  tenus,  in  open  court;  but  it  is  the 
better  practice  to  file  the  petition,  setting 
forth  the  facts  necessary  to  confer  juris- 
diction. Emeric  v.  Alvarado,  64  Cal.  529; 
2  Pac.  418.  The  court  has  no  jurisdiction 
to  appoint  a  guardian  ad  litem  for  an  in- 
fant until  such  infant  has  been  served  with 
summons.  McCloskey  v.  Sweeney,  66  Cal. 
53;  4  Pac.  943;  Estate  of  Callaghan,  119 
Cal.  571;  39  L.  E.  A.  689;  51  Pac.  860. 

Application  for  family  allowance.  A 
guardian  ad  litem  may  be  ajipointed  for 
the  purpose  of  applying  for  a  family  allow- 
ance, in  a  probate  proceeding.  Estate  of 
Snowball,  156  Cal.  235;  104  Pac.  446. 

Guardian    ad   litem    for   insane    person. 

§  374.     Unmarried  female  may  sue  for  her  own  seduction.     An  unmarried 

female  may  prosecute,  as  plaintiff,  an  action  for  her  own  seduction,  and 

may  recover  therein  such  damages,  pecuniary  or  exemplary,  as  are  assessed 

in  her  favor. 

tion  of  damages.    Lanigan  v.  Neelv,  4  Cal. 
App.  760;  89  Pac.  441. 

"Seduction,"  defined.  Marshall  v.  Tay- 
lor, 98  Cal.  55;  35  Am.  St.  Rep.  144;  32  Pac. 
867. 


Application  for  appointment  of  a  guardian 
for  an  insane  person  may  be  made  ex  parte. 
Boyd  V.  Dodson,  66  Cal.  360;  5  Pac.  617. 
No  notice  of  the  application  is  necessary. 
Emeric  v.  Alvarado,  64  Cal.  529;  2  Pac. 
418. 

Guardian  ad  litem  for  incompetent.  See 
note  ante,  §  372. 

Appointment  of  guardian  ad  litem,  where 
infant  has  general  guardian.  Where  the 
interest  of  the  infant  requires  it,  the  court 
in  which  the  cause  of  action  is  pending 
will  appoint  a  guardian  ad  litem,  even 
though  the  infant  has  a  general  guardian 
(Gronfier  v.  Puymirol,  19  Cal.  629);  but 
the  provisions  of  this  section  apply  only 
to  cases  where  there  is  no  general  guar- 
dian, or  where  the  general  guardian  is  in- 
terested adversely  to  the  ward,  or  docs  not 
act.   Gronfier  v.  Puymirol,  19  Cal.  629. 

CODE  COMMISSIONERS'  NOTE.  This  section 
relates  to  the  appointment  of  a  guardian  ad  litem, 
where  there  is  no  general  guardian.  Spear  v. 
Ward,  20  Cal.  659;  Norris  v.  Harris,  15  Cal. 
255;  Gronfier  v.  Puymirol,  19  Cal.  629.  Seethe 
cases  referred  to  in  note  to  the  preceding  sec- 
tion. 


Exemplary  damages.    See  Civ.  Code,  §  3294. 
Damages  for  seduction.    See  Civ.  Code,  §  3339. 

Legislation  §  374.     Enacted   March    11,    1873. 

Unmarried  female  may  sue  for  her  own 
seduction.  The  word  "seduction,"  as  used 
in  this  section,  means  the  use  of  some  in- 
fluence, promise,  art,  or  means,  upon  the 
part  of  the  male,  by  which  he  induces 
the  female  to  surrender  her  chastity  and 
virtue  to  his  embraces.  Marshall  v.  Tav- 
lor,  98  Cal.  55;  35  Am.  St.  Rep.  144;  32 
Pac.  867;  and  see  Morrell  v.  Morgan,  65 
Cal.  575;  4  Pac.  580.  When  rape  is  shown, 
instead  of  seduction,  it  but  aggravates  the 
offense,  and  justifies  augmented  exemplary 
damages.  Marshall  v.  Taylor,  98  Cal.  55; 
35  Am.  St.  Rep.  144;  32  Pac.  867.  In  an 
action  for  breach  of  promise  of  marriage, 
the  plaintiff  may  plead  seduction,  brought 
about  by  reason  of  the  promise,  in  aggrava- 


In  whom  right  of  action  for  seduction  vests. 
See    note    4    Am.    Dec.    403. 

Eight  of  woman  to  recover  damages  lor  her 
own  seduction.  See  notes  8  Ann.  Cas.  1115;  Ann. 
Cas.    19]  2B.    1062. 

Who  is  real  party  in  interest  by  vhom  action 
for  seduction  must  be  brought.  See  note  64 
L.   R.  A.   622. 

CODE  COMMISSIONERS'  NOTE.  This,  and 
the  succeeding  section,  are  new.  Heretofore  the 
action  could  only  be  in  the  name  of  the  parent, 
or  one  who  stands  in  that  relation,  and  is  sup- 
ported by  the  fiction  that  he  has  suffered  pecuni- 
ary injury  by  loss  of  service,  etc.  The  object  of 
these  sections  is  to  provide  a  remedy  in  favor  of 
the  party  injured,  and  to  make  the  law,  in  this 
respect,  harmonious  with  the  declaration  of  the 
code,  "that  all  actions  must  be  prosecuted  in  the 
i.ame  of  the  real  party,"  etc. 


§  375.  Father,  etc.,  may  sue  for  seduction  of  daughter,  etc.  A  father,  or, 
in  case  of  his  death  or  desertion  of  his  family,  the  mother,  may  prosecute  as 
plaintiff  for  the  seduction  of  the  daugrhter,  and  the  guardian  for  the  seduc- 
tion of  the  ward,  though  the  daughter  or  vvard  be  not  living  with  or  in  the 
service  of  the  plaintiff  at  the  time  of  the  seduction  or  afterwards,  and  there 
be  no  loss  of  service. 


Guardian  ad  litem.    Ante,  §  372.      Appointment 
of.     Ante,  §  373. 

Legislation  §  375.     1.  Enacted  March  11.  1873. 
2.   Amendment    by    Stats.    1901,    p.    126;    un- 
constitutional.   See  note  ante,  §  5. 


Accrual  of  father's  right  of  action  for 
daughter's   seduction.     See   note    1   Ann.   Cas.   3HS. 

Right  of  person  standing  in  loco  paicntis  ta 
maintain  civil  action  for  seduction.  Scd  note  Ann. 
Cas.  1912D,  299. 


§376 


PARTIES  TO   CIVIL   ACTIONS. 


230 


§  376.  Father,  etc.,  may  sue  for  injury  or  death  of  child.  A  father,  or  in 
case  of  his  death  or  desertion  of  his  family,  the  mother,  may  maintain  an 
action  for  the  injury  or  death  of  a  minor  child,  and  a  guardian  for  the  injury 
or  death  of  his  ward,  when  such  injury  or  death  is  caused  by  the  wrongful 
act  or  neglect  of  another.  Such  action  may  be  maintained  against  the  per- 
son causing  the  injury,  or  death,  or  if  such  person  be  employed  by  another 
person  who  is  responsible  for  his  conduct,  also  against  such  other  person. 

Guardian  and  ward.    Post,  §§  1768-1776;  Civ.        United  Railroads,  159  Cal.  270;  Ann.  Cas. 


Code,  §§236-258. 

Legislation  §  376.  1.  Enacted  March  11,  1873, 
in  the  exact  language  of  Practice  Act,  §  11,  and 
then  read:  "A  father,  or,  in  case  of  his  death  or 
desertion  of  his  family,  the  mother,  may  main- 
tain an  action  for  the  injury  or  death  of  a  child, 
and  a  guardian  for  the  injury  or  death  of  his 
ward." 

3.  Amended  by  Code  Amdts.  1873-74,  p. 
294. 

3.  Amendment  by  Stats.  1901,  p.  126;  un- 
constitutional.   See  note  ante,  §  5. 

Action  by  father  for  injury  or  death  of 
child.  This  section  does  not  create  a  right 
of  action,  where  none  existed  before,  but 
merely  designates  the  persons  by  whom  an 
action,  for  the  causes  therein  mentioned, 
which  then  e:;iisted,  or  might  thereafter 
be  created  by  statute,  should  be  brought. 
Kramer  v.  San  Francisco  etc.  R.  R.  Co.,  25 
Cal.  434.  The  anomalies  of  this  section 
are  evidence  of  careless  legislation,  and 
suggest  caution  in  its  construction  and  ap- 
plication. Bond  V.  United  Railroads,  159 
Cal.  270;  Ann.  Cas.  1912C,  50;  113  Pac. 
366.  The  action  provided  for  in  this  sec- 
tion is  a  new  action,  and  not  that  which 
the  deceased  might  have  brought  had  he 
survived.  Lange  v.  Schoettler,  115  Cal. 
388;  47  Pac.  139.  In  an  action  for  the 
death  of  a  child,  the  parent  may  recover 
all  ]iecuniary  loss  suffered.  Bond  v.  United 
Railroads,  159  Cal.  270;  Ann.  Cas.  1912C, 
50;  113  Pac.  366.  It  is  left  to  the  jury,  in 
such  cases,  to  say  what  they  deem  "just"; 
and  if  they  have  not  made  their  estimate 
upon  a  wrong  basis,  nor  acted  under  the 
influence  of  passion  or  prejudice,  their 
judgment  is  final.  Lange  v.  Schoettler,  115 
Cal.  388;  47  Pac.  139;  Skelton  v.  Pacific 
Lumber  Co.,  140  Cal.  507;  74  Pac.  13. 
There  are  no  restrictions  as  to  the  amount 
of  damages  recoverable  in  an  action  for 
death  caused  by  the  defendant's  negli- 
gence, except  that  the  damages  must  be 
just,  and  not  exceed  the  amount  claimed. 
Bowen  v.  Sierra  Lumber  Co.,  3  Cal.  App. 
312;  84  Pac.  1010. 

Measure  of  damages.  The  measure  of 
damages  is  that  ]»rescribed  by  this  and 
the  succeeding  section  (Bond  v.  United 
Railroads,  159  Cal.  270;  Ann.  Cas.  1912C, 
50;  113  Pac.  366);  neither  of  which  sec- 
tions give  redress  or  compensation  for 
mental  distress  consequent  upon  the  death 
of  a  child  (Morgan  v.  Southern  Pacific  Co., 
95  Cal.  510;  29  Am.  St.  Rep.  143;  17  L.  R. 
A.  71;  30  Pac.  603);  nor  for  the  pain  or 
anguish    suffered    by    the    child.     Bond    v. 


1912C,  50;  113  Pac.  366.  The  damages 
recoverable  by  the  father  are  limited  to 
such  losses  as  he  sustains;  the  infant  can 
recover  such  further  damages  as  are  per- 
sonal to  himself  (Durkee  v.  Central  Pacific 
R.  R.  Co.,  56  Cal.  388;  38  Am.  Rep.  59; 
Lange  v.  Schoettler,  115  Cal.  388;  47  Pac. 
13'9) ;  but  the  father  is  not  limited,  in  his 
recovery,  to  the  actual  pecuniary  injury 
sustained  by  reason  of  the  loss  of  the  ser- 
vices of  his  child.  Nehrbas  v.  Central 
Pacific  R.  R.  Co.,  62  Cal.  320;  Beeson  v. 
Green  Mountain  Gold  Mining  Co.,  57  Cal. 
20;  Cook  V.  Clay  Street  Hill  R.  R.  Co.,  60 
Cal.  604.  The  proper  elements  to  be  con- 
sidered by  the  jury  in  awarding  damages 
to  parents  in  such  cases  are:  1.  The  loss 
of  the  child's  services  during  minority;  2. 
The  mental  anguish  and  suffering  of  the 
parents;  3.  The  expenses  for  medical  at- 
tendance; and  4.  The  funeral  expenses. 
Karr  v.  Parks,  44  Cal.  46;  Sykes  v.  Law- 
lor,  49  Cal.  236;  Cleary  v.  City  Railroad 
Co.,  76  Cal.  240;  18  Pac.  269;  and  see  Bond 
V.  United  Railroads,  159  Cal.  270,  276; 
Ann.  Cas.  1912C,  50;  113  Pac.  366.  The 
main  element  of  the  damages  for  the  de- 
termination of  the  injury  is  the  loss  of 
the  child's  services.  Cleary  v.  City  Rail- 
road Co.,  76  Cal.  240;  18  Pac.  269;  Morgan 
V.  Southern  Pacific  Co.,  95  Cal.  510;  29  Am. 
St.  Rep.  143;  17  L.  R.  A.  71;  30  Pac.  603. 
In  the  case  of  a  mother  or  a  wife,  the  jury 
have  been  allowed  to  consider  the  fact  that 
they  were  deprived  of  the  comfort,  society, 
and  protection  of  a  son  or  a  husband;  but 
it  has  always  been  held  that  this  was  in 
strict  accordance  with  the  rule,  that  only 
the  pecuniary  value  of  the  life  to  the 
relatives  could  be  recovered,  the  probable 
comfort,  society,  and  protection  having  a 
pecuniary  value.  Lange  v.  Schoettler,  115 
Cal.  388;  47  Pac.  139. 

Recovery  by  infant.  The  infant  may 
recover  damages  for  such  injuries  as  are 
personal  to  himself,  such  as  physical  and 
mental  pain  and  suffering,  disfigurement, 
etc.,  notwithstanding  the  recovery  of  dam- 
ages by  his  parent  for  the  losses  the  latter 
sustains.  Durkee  v.  Central  Pacific  R.  R. 
Co.,  56  Cal.  388;  38  Am.  Rep.  59.  Where 
the  infant  plaintiff  was  a  female  of  two 
years,  and  the  evidence  showed  that  the 
deceased  father  was  twenty-seven  years 
old,  with  an  expectancy  of  thirty-seven 
years,  and  that  he  earned  forty  dollars  a 
month   and   board,  a  verdict  of  five  thou- 


231 


REPRESENTATIVE  OF  HEIR  MAY  SUE  FOR  DEATH  WHEN. 


§377 


sand  dollars  was  sustained  as  not  excessive. 
Bowen  v.  Sierra  Lumber  Co.,  3  Cal.  App. 
312;  84  Pac.  lOlO. 

Measure  of  damages  for  injuries  causing 
death.   See  note  post,  §  377. 

Who  may  sue  for  wrongful  death.    See  note  12 

Am.  St.  Rep.  869. 

Right  of  parent  to  recover  for  de.ith  of  illegiti- 
mate  child.     See   note    10   Ann.    Oas.    810. 

Right  of  parent  to  recover  for  death  of  adopted 
child.    See  note  15  Ann.  Cas.   148. 

Parent's  right  of  action  at  common  law  for 
loss  of  services  of  minor  child  whose  death  is 
caused  by  negligence.  See  note  18  Ij.  K.  A. 
(N.  S.)   316. 

CODE  COMMISSIONERS'  NOTE.  It  was  held 
that    the    eleventh    section    of    the    Practice'  Act 


(whi(ih  was  in  the  same  terras  as  this  section), 
wliich  provides  that  the  father,  or,  in  case  of  his 
death,  or  desertion  of  his  family,  the  mother,  may 
maintain  an  action  for  the  injury  or  death  of  a 
child,  and  a  guardian  for  the  injury  or  death  of 
his  ward,  does  not  create  a  riRlit  of  action  where 
none  existed  before,  but  merely  designates  the 
persons  by  whom  an  action,  for  the  causes  therein 
mentioned,  which  then  existed,  or  might  there- 
after be  created  by  statute,  should  be  brought; 
and  at  the  time  the  Practice  Act  was  passed,  the 
death  of  a  person  constituted  no  cause  of  action; 
and  the  eleventh  section  of  that  act,  so  far  as  it 
designates  the  parties  by  whom  an  action  for  the 
death  of  a  person  may  be  brought,  is  repealed  by 
(he  act  of  1862  (see  next  section),  which  pro- 
vides that  "every  such  action  shall  be  brought  by 
and  in  the  names  of  the  personal  representatives 
of  such  deceased  person."  Kramer  v.  San  Fran- 
cisco etc.  R.  R.  Co.,  25  Cal.  435. 

§377.  When  representatives  may  sue  for  death  of  one  caused  by  the 
wrongful  act  of  another.  When  the  death  of  a  person  not  being  a  minor 
is  caused  by  the  wrongful  act  or  neglect  of  another,  his  heirs  or  personal 
representatives  may  maintain  an  action  for  damages  against  the  person 
causing  the  death,  or  if  such  person  be  employed  by  another  person  who  is 
responsible  for  his  conduct,  then  also  against  such  other  person.  In  every 
action  under  this  and  the  preceding  section,  such  damages  may  be  given 
as  under  all  the  circumstances  of  the  ease,  may  be  just, 

Legi-slation  §  377.  1,  Enacted  March  11,  1873, 
and  then  read:  "When  the  death  of  a  person  is 
caused  by  the  wrongful  act  or  neglect  of  another, 
his  heirs  or  personal  representatives  may  main- 
tain an  action  for  damages  against  the  person 
causing  the  death;  or  when  the  death  of  a  per- 
son is  caused  by  an  injury  received  in  falling 
through  any  opening  or  defective  place  in  any 
sidewalk,  street,  alley,  square,  or  wharf,  his 
heirs  or  personal  representatives  may  maintain 
an  action  for  damages  against  the  person  whose 
duty  it  was,  at  the  time  of  the  injury,  to  have 
kept  in  repair  such  sidewalk  or  otlier  place.  In 
every  such  action  the  jury  may  give  such  dam- 
ages, pecuniary  or  exemplary,  as,  under  all  the 
circumstances  of  the  case,  may  to  them  seem 
just." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
294. 

3.  Amendment  by  Stats.  1901,  p.  126;  un- 
constitutional.    See   note   ante,  §  5. 


Action  by  heirs  or  personal  representa- 
tives. The  action  may  be  brought  either 
by  the  heirs  of  the  deceased,  or  by  his  per- 
sonal representatives;  and  when  an  action 
is  brought,  and  the  court  has  obtained  .ju- 
risdiction of  it,  that  is  the  only  action  that 
is  permitted,  under  this  section.  Munro  v. 
Pacific  Coast  Dredging  etc.  Co.,  84  Cal. 
515;  18  Am.  St.  Rep.  248;  24  Pac.  303; 
Hartigan  v.  Southern  Pacific  Co.,  86  Cal. 
142;  24  Pac.  851.  This  section  is  general; 
but  actions  for  injuries  arising  out  of  the 
relation  of  employer  and  employee  are  gov- 
erned by  §  1970  of  the  Civil  Code.  Prit- 
chard  v.  Whitney  Estate  Co.,  164  Cal.  564; 
129  Pac.  989.  The  action  under  this  sec- 
tion is  intended  for  the  compensation  of 
the  families  of  persons  killed,  not  for  the 
solacing  of  their  wounded  feelings.  Simo- 
neau  v.  Pacific  Electric  Ey.  Co..  159  Cal. 
494;  115  Pac.  320.  The  word  "heirs,"  in 
this  section,  is  used  in  the  common-law 
sense:  it  includes  all  persons  capable  of 
inheriting  from  the  deceased,  without  any 
reference  to  the   distribution  of  his  prop- 


erty under  a  statute.  Redfield  v.  Oakland 
Consol.  etc.  Ry.  Co.,  110  Cal.  277;  42  Pac. 
822,  1063;  Lange  v.  Schoettler,  115  Cal. 
388;  47  Pac.  139.  The  action  being  purely 
statutory,  and  the  statute  contemplating 
but  one  action  and  one  recovery,  where  a 
child  is  unborn,  and  its  existence  in  its 
mother's  womb  is  unknown  to  the  defend- 
ant when  a  judgment  in  favor  of  the 
widow  or  other  heirs  is  given,  an  action 
cannot  be  maintained  by  the  child  after 
its  birth.  Daubert  v.  Western  Meat  Co., 
139  Cal.  480;  96  Am.  St.  Rep.  154;  69  Pac. 
297;  73  Pac.  244.  A  recovery  in  the  action 
is  a  bar  to  a  further  recovery,  in  a  subse- 
quent action,  by  another  heir,  of  whose 
existence  the  defendant  had  no  knowledge 
at  the  time  of  the  first  action.  Salmon  v. 
Rathjeus,  152  Cal.  290;  92  Pac.  733.  The 
action  must  be  brought  for  the  benefit  of 
all  the  heirs,  or  by  all  the  heirs  for  their 
own  benefit.  Salmon  v.  Rathjens,  152  Cal. 
290;  92  Pac.  733.  The  bringing  of  the 
action  by  the  personal  representatives  of 
the  deceased  does  not  make  the  damages 
any  part  of  the  estate.  Jones  v.  Leouardt, 
10  Cal.  App.  284;  101  Pac.  811.  The  words 
"personal  representatives"  mean  the  ad- 
ministrator or  executor,  and  not  the  heir  or 
next  of  kin.  Munro  v.  Pacific  Coast  Dredg- 
ing etc.  Co.,  84  Cal.  515;  18  Am.  St.  Rep. 
248;  24  Pac.  303;  Burk  v.  Areata  etc.  R.  R. 
Co.,  125  Cal.  364;  73  Am.  St.  Rep.  52;  57  Pac. 
1065.  The  administrator  is  simply  made  a 
statutory  trustee  to  recover  damages  for 
the  benefit  of  the  heirs.  Ruiz  v.  Santa  Bar- 
bara Gas  etc.  Co.,  164  Cal.  188;  128  Pac. 
330.  Where  the  complaint  by  an  adminis- 
trator, in  an  action  for  death,  does  not 
show  that  there  are  heirs,  it  does  not  state 
a  cause   of  action;   the  administrator  can 


§377 


PARTIES  TO  CIVIL  ACTIONS. 


232 


bring  only  such  an  action  as  the  statutory 
trustee  for  heirs,  to  recover  damages  which 
they  have  suffered;  but  where  there  are 
no  heirs,  there  can  be  no  recovery.  Web- 
ster V.  Norwegian  Mining  Co.,  137  Cal.  399; 
92  Am.  St.  Kep.  181;  70  Pa~c.  276;  Jones  v. 
Leonardt,  10  Cal.  App.  284;  101  Pac.  811; 
Ruiz  V.  Santa  Barbara  Gas  etc.  Co.,  164 
Cal.  188;  128  Pac.  330.  An  amended  com- 
plaint, curing  the  defect  of  the  original 
in  not  alleging  that  there  are  heirs,  does 
not  state  a  new  or  different  cause  of  action. 
Ruiz  V.  Santa  Barbara  Gas  etc.  Co.,  164 
Cal.  188;  128  Pac.  330.  The  damages  re- 
covered by  the  administrator,  in  such  an 
action,  are  not  assets  of  the  estate  of  the 
decedent,  but  go  to  the  heirs  and  persons 
injured  by  the  death.  Munro  v.  Pacific 
Coast  Dredging  etc.  Co.,  84  Cal.  515;  18  Am. 
St.  Rep.  248;  24  Pac.  303;  Jones  v.  Leon- 
ardt, 10  Cal.  App.  284;  101  Pac.  811.  The 
heirs  cannot  recover,  where  the  deceased 
was  guilt}'  of  contributory  negligence. 
Shade  v.  Bay  Counties  Power  Co.,  152  Cal. 
10;  92  Pac.  62.  All  the  heirs  should  join  as 
plaintiffs  in  the  action;  and  where  one  does 
not  consent  to  be  joined,  he  may  be  made 
a  defendant.  Salmon  v.  Rathjens,  152  Cal. 
290;  92  Pac.  733.  The  surviving  widow 
may  be  the  sole  heir  of  the  decedent. 
Knott  V.  McGilvray,  124  Cal.  128;  56  Pac. 
789;  Daubert  v.  Western  Meat  Co.,  139  Cal. 
480;  96  Am.  St.  Rep.  154;  69  Pac.  297;  73 
Pac.  244.  In  an  action  by  a  husband  for 
the  death  of  his  wife,  caused  by  the  mal- 
practice of  a  physician,  it  is  not  necessary 
to  allege  expressly  that  he  is  her  heir, 
where  it  is  alleged  she  was  his  wife,  at 
the  time  of  her  death.  Groom  v.  Bangs, 
153  Cal.  456;  96  Pac.  503.  A  special  ad- 
ministrator may  sue,  when  authorized  by 
the  order  appointing  him.  Ruiz  v.  Santa 
Barbara  Gas  etc.  Co.,  164  Cal.  188;  128  Pac. 
330. 

Action  for  death  by  wrongful  act  or  neg- 
lect. An  action  for  damages  for  death  by 
negligence  or  wrongful  act  is  purely  statu- 
tory: no  such  right  existed  at  common  law. 
Burk  V.  Areata  etc.  R.  R.  Co.,  125  Cal.  364; 
73  Am.  St.  Rep.  52;  57  Pac.  1065;  Daubert 
V.  Western  Meat  Co.,  139  Cal.  480;  96  Am. 
St.  Rep.  154;  69  Pac.  297;  73  Pac.  244; 
Pritchard  v.  Whitney  Estate  Co.,  164  Cal. 
564;  129  Pac.  989.  In  order  to  entitle  one 
to  recover,  two  things  must  be  shown:  1. 
The  wrongful  act  or  negligence  of  the  de- 
fendant; 2.  No  want  of  ordinary  care  on 
the  part  of  the  decedent;  the  gravamen  of 
the  action  is  the  negligence  or  wrongful 
act  of  the  defendant;  and  there  can  be  no 
recovery,  where  the  negligence  of  the  de- 
cedent contributed  in  any  degree  to  the 
death,  or  to  the  injury  resulting  in  the 
death.  Gay  v.  Winter,  .3^4  Cal.  153.  Where 
a  widow  sues  for  damages  for  the  death 
of  her  husband,  caused  by  negligence,  the 
social  and  domestic  relations  of  the  par- 
ties,   and    their    kindly    demeanor    toward 


each  other,  are  admissible  to  be  shown,  as 
parts  of  "all  the  circumstances  of  the 
ease."  Beeson  v.  Green  Mountain  Gold 
Mining  Co.,  57  Cal.  20;  Cook  v.  Clay  Street 
HillR.  R.  Co.,  60  Cal.  604;  McKeever  v. 
Market  Street  R.  R.  Co.,  59  Cal.  294;  Nehr- 
bas  V.  Central  Pacific  R.  R.  Co.,  62  Cal. 
320;  Wolford  v.  Lvon  Gravel  etc.  Mining 
Co.,  63  Cal.  483.  "^The  heirs  may  all  be 
joined  as  plaintiffs;  and  the  husband,  as 
the  heir  of  his  deceased  w'ife,  may  bring 
suit  in  his  own  name  as  an  heir,  and  as  the 
guardian  ad  litem  of  the  minor  heirs.  Red- 
field  V.  Oakland  Consol.  etc.  Ry.  Co.,  110 
Cal.  277;  42  Pac.  822,  1063.  Joint  tort- 
feasors are  liable  jointly  and  severally, 
and  they  may  be  sued  jointly  in  one  action, 
or  severally  in  separate  actions.  Grundel 
V.  Union  Iron  Works,  127  Cal.  438;  78  Am. 
St.  Rep.  75;  47  L.  R.  A.  467;  59  Pac.  826. 
If  several  persons  are  guilty  in  common 
of  a  tort,  the  injured  party  may,  at  his 
election,  sue  such  tort-feasor  either  sepa- 
rately or  together.  Butler  v.  Ashworth, 
110  Cal.  614;  43  Pac.  4,  386.  Where  work 
is  being  done  with  tools  and  materials 
directly  over  a  thoroughfare,  where  people 
are  constantly  traveling,  and  have  the  un- 
doubted right  to  travel,  the  law  demands 
the  exercise  of  great  care  and  precaution 
in  the  performance  of  the  work,  in  order 
that  the  travelers  may  not  be  injured. 
Dixon  v.  Pluns,  98  Cal.  384;  35  Am.  St. 
Rep.  180;  20  L.  R.  A.  698;  33  Pac.  268; 
Judson  V.  Giant  Powder  Co.,  107  Cal.  549; 
48  Am.  St.  Rep.  146;  29  L.  R.  A.  718;  40 
Pac.  1020;  Knott  v.  McGilvray,  124  Cal. 
128;  56  Pac.  789.  The  mere  fact  that  a 
child  is  drowned  in  a  public  bathing-house 
is  not  conclusive  proof  of  negligence  on 
the  part  of  the  proprietor.  Flora  v.  Bimini 
Water  Co.,  161  Cal.  495;  119  Pac.  661. 

Damages  recoverable.  The  damages  re- 
coverable are  for  the  injuries  inflicted  upon 
the  plaintiff,  not  for  those  upon  the  dece- 
dent (Redfield  v.  Oakland  Consol.  etc.  Ry. 
Co.,  110  Cal.  277;  42  Pac.  822,  1063;  Bond 
V.  United  Railroads,  159  Cal.  270;  Ann. 
Cas.  1912C,  50;  113  Pac.  366;  Pierce  v. 
United  Gas  etc.  Co.,  161  Cal.  176;  118  Pac. 
700);  and  the  jury  have  power  to  assess 
such  damages  as,  under  all  the  circum- 
stances of  the  case,  may  be  just  (Beeson 
V.  Green  Mountain  Gold  Mining  Co.,  57 
Cal.  20;  McKeever  v.  Market  Street  R.  R. 
Co.,  59  Cal.  294;  Cook  v.  Clav  Street  Hill 
R.  R.  Co.,  60  Cal.  604;  Munro  v.  Pacific 
Coast  Dredging  etc.  Co.,  84  Cal.  515;  18 
Am.  St.  Rep.  248;  24  Pac.  303;  Morgan 
V.  Southern  Pacific  Co.,  95  Cal.  510;  29 
Am.  St.  Rep.  143;  17  L.  R.  A.  71;  30 
Pac.  603);  and  if  they  have  not  made  their 
estimate  upon  a  wrong  basis,  and  have 
not  acted  under  the  influence  of  passion 
and  prejudice,  their  judgment  is  final. 
Lange  v.  Schoettler.  115  Cal.  388;  47  Pac. 
139.  The  rule  of  damages  stated  in  the^ 
last  sentence  of  this  section   is  the  exclu- 


233 


DAMAGES  RECOVERABLE  FOR  DEATH. 


§377 


sive  measure  of  damages  iu  any  action 
for  injuries  causing  death  (Bond  v.  United 
Kailroads,  159  Cal.  270;  Ann.  Cas.  1912C, 
50;  113  Pac.  3G6) ;  and  is  a  direct  de- 
termination of  the  legislature  that  the 
policy  adopted  by  other  states  in  that  re- 
gard shall  not  exist  in  this  state.  Kedfield 
V.  Oakland  Consol.  etc.  Kv.  Co.,  110  Cal. 
277;  42  Pac.  822,  1063.  The  general  lan- 
guage of  the  last  clause  of  this  section  is 
used  with  reference  to  the  fact  that  the 
damages  allowed  by  the  statute  to  be  re- 
covered are  usually  prospective  iu  their 
nature,  and  necessarily  based  upon  proba- 
bilities; therefore  the  estimate  of  such 
damages  must  necessarily  call  for  the  exer- 
cise of  a  very  large  discretion  upon  the 
part  of  the  jury,  who  must  keep  iu  view 
the  fact  that  the  measure  thereof  is  what 
shall  fairly  seem  to  be  the  pecuniary  in- 
jury or  loss  of  the  plaintiff.  De  Haven,  J., 
concurring,  in  Morgan  v.  Southern  Pacific 
Co.,  95  Cal.  510;  29  Am.  St.  Kep.  143;  17 
L,  E.  A.  71;  30  Pac.  603.  The  jury  are 
not  limited,  in  assessing  damages,  to  the 
actual  pecuniary  injury  sustained  by  the 
plaintiff"  by  reason  of  the  loss  of  the  ser- 
vices of  the  deceased.  Nehrbas  v.  Central 
Pacific  E.  E.  Co.,  62  Cal.  320;  Clearv  v. 
€ity  Eailroad  Co.,  76  Cal.  240;  18  Pac.  269; 
Skelton  v.  Pacific  Lumber  Co.,  140  Cal.  507; 
74  Pac.  13.  If  the  amount  of  damages 
awarded  is  large,  the  court  cannot,  for  that 
reason,  say  they  are  excessive.  Aldrich  v. 
Palmer,  24  Cal.  513;  Morgan  v.  Southern 
Pacific  Co.,  95  Cal.  510;  29  Am.  St.  Eep. 
143;  17  L.  E.  A.  71;  30  Pac.  603;  Eedfield 
V.  Oakland  Consol.  etc.  Ey.  Co.,  110  Cal. 
277;  42  Pac.  822,  1063;  Skelton  v.  Pacific 
Lumber  Co.,  140  Cal.  507;  74  Pac.  13. 
Compensatory,  and  not  exemplary  or  vin- 
dictive, damages  may  be  allowed,  and  these 
must  be  confined  to  the  pecuniary  loss 
suffered,  including  comfort,  society,  etc., 
of  the  deceased.  Munro  v.  Pacific  Coast 
Dredging  etc.  Co.,  84  Cal.  515;  18  Am.  St. 
Eep.  248;  24  Pac.  303.  Exemplary  dam- 
ages cannot  be  allowed.  Lange  v.  Schoett- 
ler,  115  Cal.  388;  47  Pac.  139.  The  stat- 
ute of  1862  expressly  provided  that  the 
jury  might  give  exemplary  damages,  and 
this  provision  was  carried  into  the  first 
edition  of  the  code  (Lange  v.  Schoettler, 
115  Cal.  388;  47  Pac.  139;  Munro  v.  Pacific 
Coast  Dredging  etc.  Co.,  84  Cal.  515;  18 
Am.  St.  Eep.  248;  24  Pac.  303;  Morgan  v. 
Southern  Pacific  Co.,  95  Cal.  510;  2^9  Am. 
St.  Eep.  143;  17  L.  E.  A.  71;  30  Pac.  603; 
but  damages  cannot  be  recovered  for  grief, 
mental  suffering,  or  sorrow.  Munro  v.  Pa- 
cific Coast  Dredging  etc.  Co.,  84  Cal.  515; 
18  Am.  St.  Eep.  248;  24  Pac.  303;  Beeson 
V.  Green  Mountain  Gold  Mining  Co.,  57 
Cal.  20.  Evidence  as  to  necessary  medical 
attention  is  proper  on  the  question  of  dam- 
ages: Simoneau  v.  Pacific  Electric  Ey., 
159  Cal.  494;  115  Pac.  320;  but  in  order 
to   recover   such   charges   for   medical  and 


hospital  services  rendered,  they  must  have 
been   paid.    Salmon   v.   Eathjeus,    152   Cal. 
290;    92   Pac.   733.     In   order   that   funeral 
expenses  may  be  recovered,  they  must  be 
pleaded  as  special  damages.    Gay  v.   Win- 
ter, 34  Cal.  153.     In  all  actions  for  injuries 
causing  death,  the  damages  are  limited  to 
the  pecuniary  loss  suffered,  by  the  person 
or  persons  for  whose   benefit  the   right  of 
action  is  given,  from  the  death  or  injury 
of  the   victim.    Bond   v.  United  EailroaiLs, 
159  Cal.  270;  Ann.  Cas.  1912C,  50;  113  Pac. 
366.     Pecuniary  damages  are  limited  to  the 
jirobablS  value  of  the  life  of  the  deceased 
to   relatives.     Morgan   v.   Southern   Pacific 
Co.,  95  Cal.  510;  29  Am.  St.  Eep.  143;   17 
L.  E.  A.  71;  30  Pac.  603;  Pepper  v.  South- 
ern Pacific  Co.,  105  Cal.  389;  38  Pac.  974; 
Lange  v.  Schoettler,  115  Cal.  388;  47  Pac. 
139.     The  i^ecuniary  interest  of  children  in 
the  lives  of  their  parents   does  not  neces- 
sarily  end   with   their  attaining  majority; 
the  jury  must  take  into  consideration  and 
allow  for  the  probable  loss  of  any  benefit 
of     i)ecuuiary    value    which     the     children 
would  probably  receive  from  their  parents 
at  the  age   of  majority.    Eedfield   v.  Oak- 
land Consol.  etc.  Ey.  Co.,  110  Cal.  277;  42 
Pac.  822,  1063;  Valente  v.  Sierra  Eailwav 
Co.,    158    Cal.    412;    111    Pac.    95;    Bond    v. 
United  Eailroads,  159  Cal.  270;   Ann.  Cas. 
1912C,  50;   113  Pac.  366.     Children  have  a 
right  to  demand  from  their  father  a  com- 
fortable   support    and    a    reasonably    good 
education  until  of  sufficient  age  to   main- 
tain   themselves;     and    where    the    father, 
whilst  able  to  perform  this  duty,  loses  his 
life  through  the  negligence  of  another,  it 
was  the  intention  of  the  statute  to  compel 
the  offending  party  to  make  fair  and  just 
compensation   for   the  loss;   to   accomplish 
that  end,  a  larger  sum  would  be  required 
for   a   numerous    family   than    for    one   of 
but   one   or   two  persons;   in   like   manner, 
if  there  is  a  surviving  widow,  who,  if  her 
husband  were  alive,  would  be  entitled  to 
support  from  him,  appropriate  to  his  cir- 
cumstances and  standing  in  life,  she  would 
be  entitled  to  be  fairly  and  justly  compen- 
sated for  the  loss,  in   this  respect,   which 
she  suffered  bv  his  death.    Taylor  v.  West- 
ern Pacific  E."^E.  Co.,  45  Cal.  323.     In  de- 
termining the  amount  of  damages  to  the 
children,  caused  by  the  death  of  the  parent, 
the  jury  may  take  into  consideration  the 
value    of    nurture    and    instruction,    moral 
and     physical     and     intellectual    training, 
which  a  parent  gives  to  children.    Eedfield 
V.   Oakland   Consol.  etc.   Ey.   Co.,  110   Cal. 
277;  42  Pac.  822,  1063.     The  proof  of  the 
value    of    the    deceased    as    a   wage-earner 
is  not  the  only  element  of  damages  to  be 
considered  by  the  jury.    Skelton  v.  Pacific 
Lumber  Co.,  140  Cal.  507;  74  Pac.  13.     Evi- 
dence of  the  business  and  education  of  the 
decedent,  and  of  his  habits  of  sobriety  and 
economy,    are    also    admissible.     Tavlor    v. 
Western   Pacific    E.    E.    Co..   45    Cal.    323. 


sy78 


PARTIES  TO   CIVIL   ACTIONS. 


234 


The  theory  of  this  section  is,  that  those 
who  are  entitled  to  recover  damages  have 
a  pecuniary  interest  in  the  life  of  the  per- 
son killed,'  and  hence  the  amount  of  re- 
covery is  limited  to  the  value  of  that  in- 
terest; but  "pecuniary  interest"  does  not 
mean  a  precise  sum  in  money,  measured 
and  demonstrated  by  evidence.  Ruppel  v. 
United  Eailroads,  1  Cal.  App.  666;  82  Pac. 
1073.  A  life  annuity  in  favor  of  the  de- 
ceased is  not  a  measure  of  damages.  Red- 
field  v.  Oakland  Consol.  etc.  Ev.  Co.,  110 
Cal.  277;  42  Pac.  822,  1063.  If  tfee  facts 
are  clear  and  undisputed,  and  no  other  in- 
ference than  that  of  negligence  can  be 
drawn  from  them,  the  court  may  draw  the 
inference,  and  grant  a  nonsuit,  where  the 
plaintiff  is  guilty  of  contributor^'  negli- 
gence. Shade  v.  Bay  Counties  Power  Co., 
152  Cal.  10;  92  Pac.  62.  If  liability  for 
an  injury  caused  by  blasting  depends  upon 
negligence,  the  person  who  has  an  inde- 
pendent contract  for  the  blasting  is  liable 
for  the  negligence,  and  not  the  party  who 
let  the  contract.   Houghton  v.  Loma  Prieta 

§  378.  Who  may  be  joined  as  plaintiffs.  All  persons  having  an  interest 
in  the  subject  of  the  action,  and  in  obtaining  the  relief  demanded,  may  be 
joined  as  plaintiffs,  except  when  otherwise  provided  in  this  title, 

tion   raised,    though    they    do   not   have   a 
joint    interest    adverse    to    the    defendant, 


Lumber  Co.,  152  Cal.  500;  14  Ann.  Gas. 
1159;  14  L.  R.  A.  (N.  S.)  913;  93  Pac.  82. 
The  plaintiff,  in  an  action,  in  this  state, 
to  recover  for  an  injury  causing  death  in 
a  foreign  state,  must  allege  and  prove  the 
law  of  such  foreign  state,  giving  a  right 
of  action  for  the  death.  Ryan  v.  North 
Alaska  Salmon  Co.,  153  Cal.  438;  95  Pac. 
862.  The  rule  of  damages  is  discussed  in 
Durkee  v.  Central  Pacific  R.  R.  Co.,  56  Cal. 
388;  38  Am.  Rep.  59;  Bowen  v.  Sierra  Lum- 
ber Co.,  3  Cal.  App.  312;  84  Pac.  1010. 

Elements  and  measure  of  damages  for  wrong- 
ful death.    See  note   12  Am.  St.  Rep.   37.5. 

Measure  of  damages  recoverable  by  parent  for 
death  of  minor  child  by  wrongful  act.  See  note 
Ann.  Cas.   1912C,  58. 

CODE  COICMISSIONERS'  NOTE.  This  section 
is  intended  as  a  substitute  for  "An  Act  requir- 
ing compensation  for  causing  death  by  wrongful 
act,  neglect,  or  default."  Stats.  1862,  p.  447. 
The  portion  of  that  act  relating  to  the  time  in 
which  the  action  must  be  commenced  is  inserted 
in  chapter  III  of  the  title  relating  to  the  lime 
in  which  civil  actions  must  be  commenced.  See 
Kramer  v.  San  Francisco  etc.  R.  R.  Co.,  25  Cal. 
435. 


Co-tenants.    Post,  §  381. 

Special  partners.    Civ.  Code,  §  2492. 

Other  parties,  bringing  in.    Post,  §  389. 

Misjoinder  and  non-joinder  of  plaintiffs.  Post, 
§  430. 

Legislation  §  378.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  12  (New  York  Code, 
§  117),  the  only  change  being  to  substitute  the 
word  "title"  for  "act." 

Persons  having  interest,  joined  as  plain- 
tiffs. All  persons  in  interest  as  plaintiffs 
should  be  joined  as  such  (Whitney  v. 
Stark,  8  Cal.  514;  68  Am.  Dec.  360;  Gor- 
man V.  Russell,  14  Cal.  531);  but  no  one 
can  be  both  plaintiff  and  defendant;  a 
party  cannot  have  a  right  of  action  against 
himself  as  debtor  or  tort-feasor:  Brown 
V.  Mann,  71  Cal.  192;  12  Pac.  51;  Byrne 
V.  Byrne,  94  Cal.  576;  29  Pac.  1115;  30 
Pac.  196.  A  person  interested  both  as 
plaintiff  and  defendant  must  be  made  de- 
fendant; but  this  rule  is  dispensed  with, 
where  it  is  impracticable  or  very  incon- 
venient, as  in  cases  of  joint  associations 
composed  of  numerous  individuals.  Gor- 
man v.  Russell,  14  Cal.  531.  Generally, 
several  persons,  who  have  a  common  inter- 
est in  the  subject-matter  of  the  action,  and 
the  right  to  ask  the  same  remedy  against 
the  defendant,  may  properly  be  joined  as 
plaintiffs.  People  v.  Morrill,  26  Cal.  336; 
Toomey  v.  Knobloch,  8  Cal.  App.  585;  97 
Pac.  529.  Several  parties,  having  one  com- 
mon interest  in  the  subject-matter  of  the 
action,  may  join  as  plaintiffs,  although 
they  claim  under  distinct  titles  and  have 
different  interests  (Churchill  v.  Lauer,  84 
Cal.  233;  24  Pac.  107);  and  several  par- 
ties,  all   interested  in   the  principal   ques- 


may  join  as  plaintiffs,  particularly  where 
such  joinder  will  prevent  a  multiplicity  of 
suits.  People  v.  Morrill,  26  Cal.  336; 
Owen  V.  Frink,  24  Cal.  171.  Several  abut- 
ting property-owners,  each  with  a  distinct 
parcel  of  land,  all  watered  successively  by 
the  same  stream,  may  unite  as  plaintiffs  in 
an  action  seeking  the  redress  of  a  com- 
mon grievance.  Daly  v.  Ruddell,  137  Cal. 
671;  70  Pac.  784;  Los  Robles  Water  Co. 
V.  Stoneman,  146  Cal.  203;  79  Pac.  880; 
Barham  v.  Hostetter,  67  Cal.  272;  7  Pac. 
689;  Foreman  v.  Boyle,  88  Cal.  290;  26 
Pac.  94.  Tenants  in  common  may  main- 
tain a  joint  action  for  the  diversion  of 
the  waters  of  a  ditch,  such  action  being  in 
the  nature  of  an  action  for  the  abatement 
of  a  nuisance.  Parke  v.  Kilham,  8  Cal. 
77;  68  Am.  Dec.  310;  De  Johnson  v.  Sepul- 
beda,  5  Cal.  149.  In  an  action  in  trover, 
all  parties  in  interest  should  be  joined  as 
plaintiffs,  and  failure  so  to  join  may  be 
pleaded  in  abatement.  Whitney  v.  Stark, 
8  Cal.  514;  68  Am.  Dec.  360.  A  trustee,  to 
whom  a  mortgage  has  been  transferred  by 
the  mortgagee  to  secure  a  debt,  may  be 
joined  in  an  action  to  foreclose  the  mort- 
gage. Cerf  V.  Ashley,  68  Cal.  419;  9  Pac. 
658.  Parties  holding  distinct  water  rights, 
regulated  by  a  contract,  jointly  exercised 
by  all,  are  properly  united  as  plaintiffs  in 
an  action  for  the  enforcement  of  such  con- 
tractual rights  (Daly  v.  Ruddell,  137  Cal. 
671;  70  Pac.  784;  Los  Roblos  Water  Co. 
V.  Stoneman,  146  Cal.  203;  79  Pac.  880); 
but  where  several  riparian  owners  of  dis- 


235 


PERSONS  HAVING  INTEREST JOINED  AS  PLAINTIFFS. 


§378 


tinct  parcels  of  land,  which  are  supplied 
with  water  from  the  same  source,  join  in 
an  action  to  jirevent  the  diversion  of  the 
waters,  and  also  ask  for  damages  sever- 
ally to  plaintiffs,  the  cause  of  action  for 
damages  to  each  of  the  plaintiffs,  being 
several  and  individual,  cannot  be  joined 
with  the  cause  of  action  for  an  injunction, 
which  is  common  to  them  all.  Barham  v. 
Hostetter,  67  Cal.  272;  7  Pac.  689;  Fore- 
man V.  Boyle,  88  Cal.  290;  26  Pac.  94.  An 
attorney  in  fact,  not  a  trustee,  is  not  a 
necessary  party  to  a  suit  to  represent  his 
principal.  Powell  v.  Ross,  4  Cal.  197. 
Where  the  plaintiff  brings  a  suit  upon  a 
bill  of  lading,  made  to  the  plaintiff  jointly 
with  another,  he  has  no  separate  cause 
of  action.  Mayo  v.  Stansburj^,  3  Cal.  465. 
Where  a  purchase  is  made  on  a  joint  con- 
tract of  two,  one  cannot  sue  for  damages 
sustained  by  himself  alone.  McGilvery  v. 
Moorhead,  3  Cal.  267.  Under  a  lease  made 
jointly  by  two  parties,  to  a  third  party, 
by  the  terms  of  which  each  of  the  lessors 
was  to  receive  an  equal  jiortion  of  the  rent, 
both  lessors  are  properly  joined  as  plain- 
tiffs, in  an  action  to  recover  restitution 
and  damages  on  a  breach  of  the  contract 
by  the  lessee.  Treat  v.  Liddell,  10  Cal.  302. 
In  an  action  to  quiet  title,  brought  by  the 
vendor  against  his  vendee,  under  a  con- 
tract of  sale,  the  right  to  purchase  under 
which  had  not  been  forfeited  at  the  time 
of  the  commencement  of  the  action,  a  sub- 
sequent vendee,  under  another  contract,  is 
a  necessary  party  to  the  complete  deter- 
mination or  settlement  of  the  question. 
Birch  V.  Cooper,  136  Cal.  636;  69  Pac.  420. 
Where  a  party  agreed  to  pay  the  debt  of 
another,  a  suit  cannot  be  maintained  by 
either  the  person  to  whom  the  debt  was 
owing,  or  his  assignee,  neither  having  been 
a  party  to  the  agreement,  nor  assented 
to  it,  nor  sought  to  connect  themselves 
with  it,  until  the  commencement  of  the 
action.  McLaren  v.  Hutchinson,  18  Cal. 
SO.  Where  the  defendant  is  indebted  to 
another  person,  and  he  to  the  plaintiff,  and 
all  parties  agree  that  the  defendant  shall 
pay  his  indebtedness  to  the  plaintiff,  there 
is  an  equitable  assignment  of  the  debt,  and 
the  plaintiff  may  maintain  an  action  there- 
on against  the  defendant.  Wiggins  v.  Mc- 
Donald, 18  Cal.  126.  Where  a  business  is 
destroyed  by  fire,  through  the  negligence 
or  wrongful  act  of  the  defendant,  the 
owner  of  the  building  and  the  insuring 
company  are  properly  joined  as  plaintiffs, 
although  the  owner  alleges  and  seeks  to 
recover  special  damages  to  his  business  by 
reason  of  such  negligence  or  wrongful  act, 
in  which  damage  the  insurer  has  no  in- 
terest. Fairbanks  v.  San  Francisco  etc. 
Ry.  Co.,  115  Cal.  579;  47  Pac.  450;  and 
see  also  People  v.  Morrill,  26  Cal.  336; 
Owen  V.  Frink,  24  Cal.  171.  When  a  cit- 
izen has  been  injured  through  the  failure 
of  a  state  oflQcer  to  do  his  duty,  the  state 


is  not  a  proper  part}'  in  an  action  to  re- 
cover damages  for  such  injury.  Nougues 
V.  Douglass,  7  Cal.  65.  Where  the  non- 
joinder does  not  appear  on  the  face  of  the 
complaint,  it  may  he  taken  advantage  of, 
either  by  the  answer,  or  by  the  apportion- 
ment of  the  damages  at  the  trial.  Whit- 
ney V.  Stark,  8  Cal.  514;  68  Am.  Dec.  360. 
Where  there  is  no  showing  of  the  impair- 
ment of  substantial  rights,  a  judgment  will 
not  be  reversed  for  multifariousness  and 
misjoinder.  Asevado  v.  Orr,  100  Cal.  293; 
34  Pac.  777;  Shade  v.  Sisson  Mill  etc.  Co., 
115  Cal.  357;  47  Pac.  135;  Daly  v.  Ruddell, 
137  Cal.  671;  70  Pac.  784.  In  an  action  to 
cancel  liens  for  street-work,  the  owners  in 
severalty  of  separate  lots  may  be  joined 
as  plaintiffs,  this  section  expressly  author- 
izing the  joinder  of  plaintiffs,  in  one  ac- 
tion, to  accomplish  a  common  purpose. 
Toomey  v.  Knobloch,  8  Cal.  App.  585;  97 
Pac.  529.  In  an  action  for  the  specific 
performance  of  a  contract  to  purchase, 
brought  by  one  of  two  purchasers,  the 
other  having  received  his  share,  the  court, 
in  the  absence  of  a  demurrer  for  non- 
joinder, may  grant  a  decree  in  favor  of  the 
plaintiff  alone.  Stevens  v.  Los  Angeles 
Dock  etc.  Co.,  20  Cal.  App.  743;  130  Pac. 
197. 

CODE  COMMISSIONERS'  NOTE.  1.  "Having 
an   interest  in  the    subject   of   the    action."     See 

§  .367,  ante,  and  notes.  In  an  action  of  trover, 
all  parties  in  interest  should  be  joined.  AVhitney 
V.  Stark,  8  Cal.  .514;   68  Am.  Dec.  360. 

2.  "Except  when  otherwise  provided  in  this 
title."    See  the  following  notes. 

3.  "Assignees  of  things  in  action."  See  §  368, 
ante,  and  notes. 

4.  Executors,  administrators,  and  trustees.  See 
§  369,  ante,  and  notes. 

5.  Married  women.  See  §§  370,  371,  ante,  and 
notes. 

6.  For  infants  and  guardian.  See  §  372,  ante, 
and  notes. 

7.  Actions  by  parents  in  certain  cases.  See 
§§  37.T.  376,  ante,  and  notes. 

8.  Actions  by  heirs  and  personal  representatives 
for  death  of  person  by  wrongful  act.  See  preced- 
ing section. 

9.  When  one  or  more  parties  may  sue  or  de- 
fend for  all  the  parties  in  interest.  See  §  382, 
post. 

10.  Actions  to  quiet  title.     See  §  738,  post. 

11.  Parties  having  an  interest.  Who  are  proper 
parties  to  equity  actions.  Who  are  the  proper 
and  necessary  parties  to  a  suit  in  equity,  is  a  sub- 
ject of  great  practical  importance,  and  oftentimes 
of  no  inconsiderable  difficulty.  It  is  the  constant 
aim  of  a  court  of  equity  to  do  complete  justice, 
by  deciding  upon  and  settling  the  rigrhts  of  all 
parties  interested  in  the  subject  of  the  suit,  so  as 
to  make  the  performance  of  the  decree  of  the  court 
perfectly  safe  to  those  compelled  to  obey  it,  and 
to  prevent  further  litigation.  For  this  purpose, 
all  persons  materially  interested,  either  legally  or 
beneficially,  in  the  subject-matter  of  the  suit, 
ought  generally  to  be  made  parties  thereto,  either 
as  plaintiffs  or  defendants,  so  that  there  may  be 
a  complete  decree,  which  shall  bind  them  all. 
Mitford's  Pleading,  6th  Am.  ed.,  p.  189;  1  Dan- 
iell's  Chancery  PI.  &  Pr.,  p.  40;  Storv's  Eq.  PI., 
§  72  ;  People  v.  Morrill,  26  Cal.  360,  361.  The  rule, 
as  stated  and  illustrated  in  King  v.  Berry's  Exec- 
utors, 3  N.  J.  Eq.  52,  is,  that  all  persons  legally 
or  beneficially  interested  in  the  subject-matter  and 
result  of  a  suit  must  be  parties;  and  to  the  same 
effect  are  the  foll;jwing  cases:  Mechanics'  Bank 
V.  Seton,  1  Pet.  306;   7  L.  Ed.  156;   Caldwell  v. 


§378 


PARTIES  TO   CIVIL   ACTIONS. 


23d 


Taggart,  4  Pet.  190;  7  L.  Ed.  828;  Marshall  ▼. 
Beverley,  5  Wheat.  313;  5  L.  Ed.  97;  Connecti- 
cut V.  Pennsylvania,  5  Wheat.  424;  5  L.  Ed. 
125;  Williams  v.  Russell,  19  Pick.  165;  to  which 
many  others  might  be  added.  But  to  this  gen- 
eral rule  there  are,  according  to  the  authorities, 
exceptions.  Mitford's  Pleadinc  p.  190;  Story's 
Eq.  PI.,  §§76,  76a.  76b,  76c;  Wiser  v.  Blackly, 
1  Johns.  Ch.  437.  These  it  is  not  necessary  to 
notice  in  this  place,  as  no  question  is  presented 
requiring  it.  There  is  a  distinction  made  in  some 
of  the  authorities  between  the  subject-matter  of 
the  suit  and  the  ob.iect  of  the  suit;  and  it  has 
been  said,  that  it  is  not  all  persons  who  have  an 
interest  in  the  subject-matter  of  the  suit,  but,  in 
general,  those  only  who  have  an  interest  in  the 
object  of  the  suit,  who  are  ordinarily  required  to 
be  made  parties.  Calvert  on  Parties,  pp.  5,  6,  10, 
11.  The  general  rule  on  the  subject  may  be 
stated  to  be,  that  all  are  necessary  parlies  who 
have  an  interest  in  the  subject-matter,  which  may 
be  affected  by  the  decree.  Smith  v.  Trenton  Dela- 
ware I-'alls  Companv,  4  N.  J.  Eq.  508;  Crease  v. 
Babcock,  10  Met.  (Mass.)  531.  This  rule  is 
founded  on  the  principle  of  preventing  future  liti- 
gation and  avoiding  a  multiplicity  of  suits,  by 
adjudicating  upon  the  rights  of  all  parties  upon 
whom  a  decree  may  or  ought  to  operate.  But 
this  rule  requiring  all  in  interest  to  be  before  the 
court,  is  one  somewhat  of  convenience,  and  will 
pot  be  rigidly  enforced  where  its  observance  would 
be  attended  with  great  inconvenience,  and  answer 
no  substantially  beneficial  purpose.  It  will  be 
modified,  or  partially  dispensed  with,  in  the  dis- 
cretion of  the  court,  as  justice  and  the  exigencies 
of  the  case  may  require.  Having  thus  referred 
generally  to  the  rule  of  courts  of  equity  in  rela- 
tion to  what  persons  ought  to  be  made  parties  to 
a  suit,  we  shall  proceed  directly  to  the  considera- 
tion of  tl'.e  question  in  issue,  that  is  to  say.  the 
objection  that  there  is  a  misjoinder  of  parties  de- 
fendants, and  an  improper  union  of  causes  of  ac- 
tion, or  in  other  words,  that  the  complaint  is 
fatally  infected  with  the  vice  of  multifarious- 
ness. A  bill  in  equity  is  said  to  be  multifarious 
when  distinct  and  independent  matters  are  joined 
therein ;  as,  for  example,  the  uniting  of  several 
matters  perfectly  distinct  and  unconnected  agains' 
one  defendant,  cr  the  demand  of  several  matters 
of  a  distinct  and  independent  nature  against  sev- 
eral defendants.  But  the  case  of  each  particular 
defendant  must  be  entirely  distinct  and  independ- 
ent from  that  of  the  other  defendants,  or  the 
objection  cannot  prevail:  for,  as  said  by  Judge 
Story,  "the  case  of  one  may  be  so  entire  as  to  be 
incapable  of  being  prosecuted  in  several  suits, 
and  yet  some  other  defendant  may  be  a  necessary 
party  to  some  portion  only  of  the  case  stated.  In 
the  latter  case  the  objection  of  multifariousness 
could  not  be  allowed  to  prevail.  So  it  is  not  in- 
dispensable that  all  the  parties  should  have  an  in- 
terest in  all  the  matters  contained  in  the  suit;  it 
will  be  sufficient  if  each  party  has  an  interest  in 
some  matters  in  the  suit,  and  they  are  connected 
with  the  others."  Story's  Eq.  PI.,  §§  271,  271a. 
The  same  authority  lays  it  down,  that  "to  sup- 
port the  objection  of  multifariousness,  because  the 
bill  contains  different  causes  of  suit  against  the 
same  person,  two  things  must  concur:  first,  the 
different  grounds  of  suit  must  be  wholly  distinct; 
secondly,  each  ground  must  be  suflScient,  as  stated, 
to  sustain  a  bill.  If  the  grounds  be  not  entirely 
distinct  and  unconnected,  if  they  arise  out  of  one 
and  the  same  transaction,  or  series  of  transac- 
tions, forming  one  course  of  dealing,  and  all  tend- 
ing to  one  end,  if  one  connected  story  can  be  told 
of  the  whole,  the  objection  does  not  apply."  Id., 
§  271b.  When  the  point  in  issue  is  a  matter  of 
common  interest  among  all  the  parties  to  the  suit, 
though  the  interests  of  the  several  defendants  are 
otherwise  unconnected,  still  they  may  be  joined. 
In  Salvidge  v.  Hyde,  5  Madd.  138,  Sir  John  Leach! 
vice-chancellor,  said:  "If  the  objects  of  the  suit 
be  single,  but  it  happens  that  different  persons 
have  separate  interests,  indistinct  questions  which 
arise  out  of  the  single  object,  it  necessarily  fol- 
lows that  such  different  persons  must  be  brought 
before  the  court,  in  order  that  the  suit  may  con- 
clude  the   whol«   subject."      In  Boyd   v.   Hoyt,    5 


Paige  Ch.  78,  Mr.  Chancellor  Walworth  laid  down 
the  same  doctrine,  in  substantially  the  language 
used  by  Sir  John  Leach  in  Salvidge  v.  Hyde;  and 
Mr.  Daniell,  in  the  first  volume  of  his  excellent 
work  on  Pleading  and  Practice  in  the  High  Court 
of  Chancery,  at  page  386,  says,  in  reference  to 
the  doctrine  held  in  Salvidge  v.  Hyde,  there  is  no 
doubt  that  the  learned  judge  stated  the  principle 
correctly,  though  in  the  application  of  it  he  went, 
in  the  opinion  of  Lord  Eldon,  too  far.  1  Jac. 
151.  In  Whaley  v.  Dawson,  2  Sch.  &  Lef.  370, 
Lord  Redesdale  observed,  that,  in  the  English 
cases,  where  demurrers,  because  the  plaintiff  de- 
manded in  his  bill  matters  of  distinct  natures 
against  several  defendants  not  connected  in  inter- 
est, have  been  overruled,  there  has  been  a  gen- 
eral right  in  the  plaintiff  covering  the  whole  case, 
although  the  rights  of  the  defendants  may  have 
been  distinct.  In  such  cases  the  court  proceeds 
on  the  ground  of  preventing  multiplicity  of  suits, 
when  one  general  right  is  claimed  by  the  plaintiff 
against  all  the  defendants;  and  so  in  Dimmock  v. 
Bixby.  20  Pick.  368,  the  court  held  that  where 
one  general  right  is  clairned  by  the  plaintiff,  al- 
though the  defendants  may  have  separate  and  dis- 
tinct rights,  the  bill  of  complaint  is  not  multi- 
farious. In  the  elaborate  case  of  Campbell  v. 
Mackay,  1  Myl.  &  C.  e03,  Lord  Cottenham  held 
that  where  the  plaintiffs  have  a  common  interest 
against  all  the  defendants  in  a  suit,  as  to  one  or 
more  of  the  questions  raised  by  it,  so  as  to  make 
them  all  necessary  parlies  for  the  purpose  of  en- 
forcing that  common  interest,  the  circumstance 
of  the  defendants  being  subject  to  distinct  liabil- 
ities, in  respect  to  different  branches  of  the  sub- 
ject-matter, will  not  render  the  bill  multifarious. 
In  the  same  case  his  lordship  observed  that  it 
was  utterly  impossible,  upon  the  authorities,  to 
lay  down  anv  rule  or  abstract  proposition  as  to. 
what  constitutes  multifariousness  which  can  be 
made  universally  applicable.  The  only  way,  he 
said,  of  reconciling  the  authorities  upon  the  sub- 
ject is  by  adverting  to  the  fact,  that,  although 
the  books  speak  generally  of  demurrers  for  multi- 
fariousness, yet,  in  truth,  such  demurrers  may  be 
divided  into  two  kinds,  one  of  which,  properly 
speaking,  is  on  account  of  a  misjoinder  of  causes 
of  action,  that  is  to  say,  uniting  claims  of  so  dif- 
ferent a  character  that  the  court  will  not  permit 
them  to  be  litigated  in  one  record,  even  though 
the  plaintiff  and  defendants  may  be  parties  to  the 
whole  transactions  which  form  the  subject  of  the 
suit.  The  other  of  which,  as  applied  to  a  bill,  isT 
that  a  party  is  brought  as  a  defendant  upon  a  rec- 
ord with  a  large  portion  of  which,  and  with  the 
case  made  by  it,  he  has  no  connection  whatever. 
A  demurrer  for  such  cause  is  an  objection  that 
the  complaint  sets  forth  matters  which  are  multi- 
farious, and  the  real  cause  of  objection  is,  as 
illustrated  by  the  old  form  of  demurrer,  that  it 
puts  the  parties  to  great  and  useless  expense; 
an  objection  which  has  no  application  in  a  case 
of  mere  misjoinder  of  parties.  L^pon  this  sub- 
ject, Judge  Story  says:  "In  the  former  class  of 
cases,  where  there  is  a  joinder  of  distinct  claims 
between  the  same  parties,  it  has  never  been  held, 
as  a  distinct  prooosition,  that  they  cannot  be 
united,  and  that  the  bill  is  of  course  demurrable 
for  that  cause  alone,  notwithstanding  the  claims 
are  of  a  similar  nature,  involving  similar  prin- 
ciples and  results,  and  may,  therefore,  without 
inconvenience,  be  heard  and  adjudged  together. 
If  that  proposition  were  to  be  established  and 
carried  to  its  full  extent,  it  would  go  to  prevent 
the  unitins  of  several  instruments  in  one  bill, 
although  the  'Parties  were  liable  in  respect  to 
each,  and  the  same  parties  were  interested  in  the 
property  which  was  the  subject  of  each" ;  and, 
after  giving  an  example  in  illustration  of  the  in- 
convenience of  an  opposite  doctrine,  he  continues: 
"Such  a  rule,  if  established  in  equity,  would  be 
very  mischievous  and  oppressive  in  practice,  and 
no  possible  advantage  could  be  gained  by  it.  It 
would  be  a  multiplication  of  suits  in  cases  where 
it  could  answer  no  assignable  purpose  but  to  have 
the  subject-matter  split  into  a  variety  of  separate 
bills" ;  and  further,  he  denies  that  such  a  rule 
has  been  established,  but  says,  on  the  contrary,  a 
different  doctrine  has  been   maintained,  which  is 


237 


PERSONS  HAVING  INTEREST — JOINED  AS  PLAINTIFFS. 


§378 


supported  by  the  most  satisfactorv  authority 
(Story's  Eo.  PI.,  §§531,  532);  and  lie  states,  in 
conclusion,  the  result  of  the  princii)les  of  the  cases 
on  the  sub.ject  to  be,  that,  where  there  is  a  com- 
mon liability  in  the  defendants,  and  a  common 
interest  in  the  plaintiffs,  dilferent  claims  to  prop- 
erty, at  least  if  the  subjects  are  such  as  may  with- 
out inconvenience  be  joined,  may  be  united  in  one 
and  the  same  suit:  and  further,  that,  where  the 
interests  of  the  plaintiffs  are  the  same,  allhoush 
the  defendants  may  not  have  a  coextensive  com- 
mon interest,  but  their  interests  may  be  derived 
under  different  instruments,  if  the  peneral  ob- 
ject of  the  bill  will  be  promoted  by  their  being 
united  in  a  sins'le  suit,  the  court  will  not  hesitate 
to  sustain  the  bill  ajrainst  all  of  them.  Ibid., 
§§  533,  534;  Wilson  v.  Castro,  31  Cal.  426. 

12.  Parties  interested  in  annulling  patent.  Per- 
sons not  owning  a  joint  i.Uerest  in  the  real 
estate,  yet  if  they  have  a  common  interest  in  an- 
nulling: a  patent  therefor,  they'may  be  joined  as 
plaintiffs.  People  v.  Morrill,  26  Cal.  352;  see 
also  People  v.  Stratton,  25  Cal.  244. 

13.  Action  by  assignee  of  eciuitable  title  for 
specific  performance.  Where  A  contracts  for  the 
conveyance  of  certain  lands  to  B,  the  assignees 
of  B,  who  had  the  eauitable  title,  may  jointly 
maintain  an  action  against  A  for  a  specific  per- 
formance.   Owen  V.  Frink,  24  Cal.  177. 

14.  Joint  action  by  several  holders  of  mechan- 
ics' liens.  Several  parties,  holding  mechanics' 
liens,  may  be  joined  for  the  enforcement  of  the 
liens,  even  though  they  hav.-!  no  common  interest 
together.     Barber  v.  Reynolds,  33  Cal.  502. 

15.  Agents,  action  by.  Generally,  agents  can- 
not maintain  action  in  their  own  name  for  causes 
arising  out  of  the  subject-matter  of  the  agency. 
Lineker  v.  Ayeshford,  1  Cal.  75;  Phillips  v.  Hen- 
shaw,  5  Cal.  509.  But,  if  a  note  is  payable  to 
a  person,  as  agent  of  another,  yet  he  may  sue  in 
his  own  name  at  law.  Ord  v.  McKee,  5  Cal.  515. 
If  two  agents  are  employed  to  do  a  certain  busi- 
ness, each  agent  may,  in  some  cases,  maintain  a 
separate  action  for  his  expenses.  Conner  v.  Hutch- 
inson, 12  Cal.  127. 

16.  Principals,  when  they  may  sue  in  their  own 
names  on  contracts  made  by  their  agents.  See 
Ruiz  V.  Norton,  4  Cal.  359 ;  Brooks  v.  Minturn, 
1  Cal.  482;  Thurn  v.  Alta  Telegraph  Co.,  15  Cal. 
472;  Lubert  v.  Chauviteau,  3  Cal.  462;  58  Am. 
Dec.  4  1  5. 

17.  Assignees.  Generally  an  assignee  may  bring 
an  action  in  his  own  name.  Wheatley  v.  Strobe, 
12  Cal.  98;  73  Am.  Dec.  522.  If  the  assignment 
was  absolute  of  a  whole  demand,  although  he  only 
acquired  a  portion  thereof,  yet  the  assignee  may 
sue  for  the  whole  debt.  Gradwohl  v.  Harris,  29 
Cal.  150.  But  the  assignment  of  a  portion  of  a 
debt  does  not  constitute  the  assignee  a  joint 
owner  in  the  whole  debt,  and  he  need  not  neces- 
sarily be  joined  as  a  party  in  an  action  to  recover 
the   debt.     Leese  v.  Sherwood,  21  Cal.  152. 

18.  Assignment  of  contract  as  security  for  debt, 
etc.  "An  assi"nmeni  nf  a  contract  as  a  secur- 
ity for  a  debt,  and  also  in  consideration  of  a 
covenant  not  to  sue  upon  the  debt,  entitles  the 
assignee  to  sue  on  the  contract  in  his  own  name." 
Warner  v.  Wilson,  4  Cal.  310  (syllabus)  :  see  also 
Gray  v.  Garrison,  9  Cal.  325.  When  assignee  of 
a  judgment  may  sue  on  appeal  bond.  See  Moses 
V.  Thorne.  6  Cal.  88. 

19.  Indorsers  and  indorsees.  The  holder  of 
a  non-negotiable  note  may  maintain  an  action 
against  the  person  assigning  the  same  to  him,  and 
also  against  every  one  from  whose  hands  the  note 
has  passed  by  assignment.  Hamilton  v.  McDon- 
ald. 18  Cal.  128.  If  a  new  promise  has  been 
made  to  a  payee,  a  subsequent  indorsee  succeeds 
to  the  rights  of  the  payee,  and  may  maintain  an 
action  upon  it.     Smith  v.  Richmond.  19  Cal.  476. 

20.  Joint  contracts,  bills  of  lading,  and  leases. 
As  to  joint  contracts,  both  joint  contractors  must 
be  joined  as  plaintiffs  in  an  action  thereon,  not- 
withstanding only  one  of  the  contractors  has  sus- 
tained damage.  See  McGilvery  v.  Moorhead,  3 
Cal.  267.  A  suit  being  brought  upon  a  bill  of 
lading  made  to  the  plaintiff  jointly  with  another 
party.      Held:  the  plaintiff  had  no  separate  cause 


of  action.  ^Tavo  v.  Stan-sbury,  3  Cal.  465.  Also, 
as  to  joint  leases,  see  Treat  v.  Liddell,  10  Cal. 
302. 

21.  Actions  by  or  against  counties.  See  Pol. 
Code,  SS  4000,  4003.  and  4452,  and  notes.  See 
also  People  v.  Myers,  15  Cal.  33;  Mendocino 
County  v.  Lamar,  30  Cal.  627;  Mendocino  County 
V.  Morris,  32  Cal.  145;  Placer  County  v.  Astin, 
8  Cal.  305;  Price  v.  Sacramento  County,  6  Cal. 
254;  Board  of  Supervisors  v.  Bird,  31  Ca\.  66; 
Solano  County  v.  Neville,  27  Cal.  468;  Sharp  v. 
Contra  Costa  County.  34  Cal.  284. 

22.  Ejectment  suits.  "All  persons  having  an 
interest  in  the  subject  of  the  action,"  etc.  Ac- 
tions of  ejectment  must  beproBccuted  in  (he  name 
of  the  real  party  in  interest.  Ritchie  v.  Dorland, 
6  Cal.  33.  See  also  Seaward  v.  Malotte,  15  Cal. 
304;  Collier  v.  Corbett,  15  Cal.  183;  Stark  v. 
Barrett,  15  Cal.  361:  Touchard  v.  Crow,  20  Cal. 
162;  81  Am.  Dec.  108.  If  the  action  is  brought 
for  the  community  property  of  husband  and  wife, 
the  action  should  be  by  the  husband  alone.  Mott 
V.  Smith,  16  Cal.  533.  An  heir  at  law  can  main- 
tain the  action  without  entry  upon  the  land.  See- 
Soto  V.  Kroder.  19  Cal.  87;  see  also  Estate  of 
Woodworth,  31  Cal.  604;  Updeeraff  v.  Trask,  Iff 
Cal.  458. 

23.  Non-resident  alien.  A  non-resident  alieni 
may  be  plaintiff  in  an  action  of  ejectment.  State 
V.  Rogers,  13  Cal.  165. 

24.  Party  to  a  fraud.  A  party  to  a  fraud  can- 
not maintain  an  action  thereon.  Depuy  v.  Wil- 
liams, 26  Cal.  313. 

25.  Partners.  Actions  against  each  other.  One 
partner  cannot  sue  tlie  other  in  an  action  at  law. 
The  remedy  is  by  bill  in  equity  for  a  dissolution 
and  an  account.    Barnstead  v.  Empire  Mining  Co.. 

5  Cal.  299;  Stone  v.  Fouse,  3  Cal.  292;  Russell 
V.  Ford,  2  Cal.  86;  see  also  Buckley  v.  Carlisle, 
2  Cal.  420. 

26.  Church,  who  represents  in  an  action.  Priest' 
may  have  power  to  sue  for  the  church.  See  San- 
tillan  V.  Moses,  1  Cal.  94. 

27.  The  state  may  be  a  party.  Civil  actions. 
See  State  v.  Poulterer,  16  Cal.  532.  A  private 
person  cannot  bring  a  suit  for  private  wrongs  in 
the  name  of  the  state.  See  People  v.  Pafheco,  29 
Cal.  210.  The  state  cannot  be  plaintiff  in  cer- 
tain actions,  where  it  has  no  interest.  See  People 
V.  Stratton,  25  Cal.  244. 

28.  Who  may  cring  action  to  annul  patents  to 
mines.  The  state,  and  persons  who  have  a  right 
to  mine  on  the  land,  under  the  mining  laws  of 
this  state,  may  be  joined  as  plaintiffs  in  an  ac- 
tion to  annal  a  patent  for  land  sold  illegally. 
People  V.  Morrill,  26  Cal.  352:  Wilson  v.  Castro, 
31  Cal.  420;  see  also,  however.  People  v.  Strat- 
ton. 25  Cal.  244. 

29.  State  cannot  be  sued.  Except  as  may  be 
authorized   by   some    statute.     People   v.    Talmage, 

6  Cal.  256. 

30.  Administrators,  when  proper  parties.  In 
an  action  to  recover  judgment  on  a  promissory 
note,  the  suggestion  of  the  death  of  the  defend" 
ant,  and  the  substitution  of  iiis  administrator,  and 
the  continuance  of  the  suit  against  him,  subject 
the  proceedings  to  such  rules  of  the  Probate  Act 
as  are  applicable  to  proceedings  for  the  collec- 
tion of  claims  against  an  estate  of  a  deceased  per- 
son. Myers  v.  Mott,  29  Cal.  359;  89  Am.  Dec. 
49. 

31.  Administrators,  when  parties.  Though  the 
defendant  in  such  an  action  be  described  in 
the  captio!!  of  the  complaint  as  administrator,  yet 
the  facts  show  that  it  is  not  sought  to  charge  him 
as  administrator,  and  no  relief  is  sought  against 
the  estate.  Held:  that  the  objection  that  he  is 
sued  in  his  representative  capacity  is  untenable. 
People  V.  Houghtaling,  7  Cal.  348;  Lathrop  v. 
Bampton.  31  Cal.  17;  89  Am.  Dec.  141. 

32.  Same  person  interested  both  as  plaintiff  and 
defendant.  Person  being  payee  of  a  note  and 
mortgage,  and  also  payer  of  the  same  jointly  with^ 
others,  may  sue  the  other  joint  payers.  Where 
thirteen  persons  made  a  joint  and  several  prom- 
issory note,  pavable  to  thpee  of  their  number,  and 
all  joined  in  the  execution  of  a  mortgage  to  se- 
cure the  payment  of  the  note,  the  plaintiffs  being 


§^579 


PARTIES  TO   CIVIL   ACTIONS. 


238 


both  payers  and  payees  in  the  note,  and  the  mort- 
gagors and  raortgaRees  in  the  mortgage,  and,  sub- 
sequently, the  payees  of  the  note  broug-ht  suit 
against  the  other  makers,  and  for  a  foreclosure 
of  the  mortgage.  Held:  That  the  suit  was  prop- 
erly brought,  and  plaintiffs  were  entitled  to  a 
judgment  of  foreclosure.  McDowell  v.  Jacobs,  10 
Cal.  387. 

33.  Actions  to  foreclose  mortgages.  The  plain- 
tiff had  the  right  to  go  into  equity  and  foreclose 
the  mortgage  given  to  the  principal  to  secure  the 
note,  if  he  was  really  interested  in  the  subject- 
matter.     Ord  V.  McKee,  5  Cal.  515. 

34.  Mortgage  given  to  secure  separate  debts  of 
several  persons  as  mortgagees.  "Where  a  mort- 
gage is  given  to  secure  the  separate  debts  of 
several  persons  as  mortgagees,  iV  is  a  several 
security,  and  may  be  enforced  by  each  creditor, 
as  in  case  of  a  separate  mortgage.  But  when  other 
parties  are  interested  in  the  property,  the  court 
will  require  them  to  be  brought  in,  before  order- 
ing a  sale  or  foreclosure."  Tvler  v.  Yreka  Water 
Co.,  14  Cal.  212  (syllabus). 

35.  Actions  by  assignees  to  foreclose  mortgage. 
Where  an  assignment  of  a  note  and  mortgage  has 
been  made  to  plaintiffs,  to  indemnify  them  as 
sureties  on  a  bail  bond  for  the  assignor,  and 
where  suit  is  then  pending  on  such  bond,  it  is 
proper  for  them  as  such  assignees,  to  institute 
suit  on  the  note  and  mortgage ;  and  a  decree  of 
foreclosure  in  such  case,  with  directions  to  pay 
the  money  into  court,  to  await  the  further  decree 
of  the  court,  is  proper,  or  at  least  there  is  no 
error  in  such  a  decree  to  the  prejudice  of  the  de- 
fendants.     Hunter  v.  Levan,  11  Cal.  11. 

36.  Stranger  in  interest.  A  mere  stranger,  who 
voluntarily  pays  money  due  on  a  mortgage,  and 
fails  to  take  an  assignment  thereof,  but  allows  it 
to  be  canceled  and  discharged,  cannot  afterwards 
come  into  equity,  and,  in  the  absence  of  fraud, 
accident,  or  mistake  of  fact,  have  the  mortgage 
reinstated  and  himself  substituted  in  the  place  of 
the  mortgagee.  Guv  v.  Du  Uprey,  16  Cal.  195; 
76  Am.  Dec.  518. 

37.  Parties  plaintiff  in  suit  on  injunction  bond. 
If  several  parties  are  severally  in  possession  of 
and  cultivating  in  separate  parcels  a  tract  of  land, 
and  are  sued  jointly  in  ejectment  to  recover  pos- 


session of  the  whole  tract,  and  an  injunction  is 
obtained,  restraining  them  jointly  from  taking 
off  the  crops,  these  parties  cannot  maintain  a 
joint  action  for  damages  on  the  injunction  bond, 
provided  their  damages  are  not  joint.  They  cm 
maintain  a  joint  action  for  such  damages,  only, 
as  are  joint,  such  as  attorneys'  fees.  Fowler  v. 
Frisbie.  37  Cal.  34. 

38.  Action  on  injunction  bond  for  several  dam- 
ages. The  fact  that  the  plaintiff  brings  a  joint 
action  against  several  persons  as  trespassers,  and 
obtains  an  injunction  against  them  jointly,  does 
not  estop  him,  in  an  action  brought  against  him 
on  the  injunction  bond,  from  showing  that  the 
damages  were  several,  and  from  claiming  that 
they  cannot  maintain  a  joint  action  for  several 
damages.     Fowler  v.  Frisbie,  37  Cal.  34. 

■  39.  Party  plaintiff  in  action  for  deceit.  An  ac- 
tion for  deceit  in  the  sale  of  land,  to  which  the 
grantor  had  no  title,  should  be  brought  by  all  the 
grantees  jointly,  unless  there  has  been  a  convey- 
ance of  the  cause  of  action  to  the  plaintiff.  A 
conveyance  by  one  of  the  grantees  to  the  others, 
of  his  interest  in  the  land,  does  not  assign  the 
cause  of  action  for  deceit,  so  as  to  enable  the  as- 
signees to  sue  for  the  deceit  in  their  names.  Law- 
rence V.  Montgomery.  37  Cal.  183. 

40.  Plaintiffs  in  suit  upon  covenants  in  a  deed. 
All  the  grantees  should  join  as  plaintiffs  in  an 
action  upon  either  a  direct  or  implied  covenant 
in  a  deed,  that  the  grantor  has  not  sold  or  en- 
cumbered the  land,  or  that  he  is  seised  of  and 
has  a  right  to  convey  the  same.  A  deed  of  the 
land  by  one  of  the  grantees  to  another,  does  not 
convey  to  him  the  cause  of  action  upon  such  cove- 
nant.    Lawrence  v.  Montgomery,  37  Cal.  183. 

41.  Parties  having  a  part-interest  must  be  joined. 
All  the  parties  having  a  part-interest  in  the  sub- 
ject-matter should  be  joined  as  plaintiffs,  but  the 
defect  must  be  taken  advantage  of  by  answer  or 
apportionment  of  damages,  where  it  does  not  ap- 
pear on  the  face  of  the  complaint.  Whitney  v. 
Stark,  8  Cal.  514:  68  Am.  Dec.  360. 

42.  Constructive  parties  in  action  upon  bond. 
In  an  action  upon  a  bond  or  written  undertaking, 
there  can  be  no  constructive  parties  jointly  liable 
with  the  proper  obligors.  Lindsay  v.  Flint,  4  Cal. 
88. 


§  379.  Who  may  be  joined  as  defendants.  Any  person  may  be  made  a 
defendant  who  has  or  claims  an  interest  in  the  controversy  adverse  to  the 
'plaintiff,  or  w^ho  is  a  necessary  party  to  a  complete  determination  or  settle- 
ment of  the  question  involved  therein.  And  in  an  action  to  determine  the 
title  or  right  of  possession  to  real  property  which,  at  the  time  of  the  com- 
mencement of  the  action,  is  in  the  possession  of  a  tenant,  the  landlord  may 
he  joined  as  a  party  defendant. 


Joining  landlord.    Civ.  Code,  §  1949. 
Parties  to  foreclosure.     Post,  §  726. 
Corporation  stockholders.    Const.,  art.  xii,  §§3, 
4;   Civ.   Code,  §  322. 

Associates,  suing  by  common  name.    Post,  §  388. 

Quieting  title.     Sop  post,  §  738. 

Executors,    unqualified,    need    not    be    joined. 

Post.  5   ir)H7. 

Fresh  parties,  bringing  in.    Post,  §  389. 

Service  on  one  defendant  out  of  several,  effect 
of.    Post,  §  414. 

State,  suits  against.  Suits  may  be  brought 
against  state  in  such  manner  and  in  such  courts 
as   shall  be  directed  by  law.    Const.,   art.   xx,  §  6. 

Legislation  8  379.  Enacted  March  11,  1873; 
based  on  l^ractice  Act,  §  13  (New  York  Code, 
§  113),  which  read:  "Any  person  may  be  made 
a  defendant,  who  has  or  claims  an  interest  in 
the  controversy,  adverse  to  the  plaintiff,  or  who 
is  a  necessary  party  to  a  complete  determination 
or   settlement   of   the   question    involved   therein." 

Parties  having  Interest,  joined  as  de- 
fendants. The  formor  rule  in  equity  is 
substantially  adopted  in  this  section,  un- 
der which   the  parties  interested  not  only 


in  the  cause  of  action,  but  also  in  the  relief 
to  be  obtained,  or  who  would  be  affected 
by  the  granting  or  withholding  of  such  re- 
lief, were  proper  parties.  Shakespear  v. 
Smith,  77  Cal.  638;  11  Am.  St.  Eep.  327; 
20  Pac.  294;  Gardner  v.  Samuels,  116  Cal. 
84;  58  Am.  St.  Eep.  135;  47  Pac.  935;  Wil- 
son V.  Gastro,  31  Cal.  420.  The  "contro- 
versy" referred  to  in  this  section  is  the 
claim  for  relief,  set  forth  in  the  complaint, 
made  by  the  plaintiff  against  the  defend- 
ant. Gardner  v.  Samuels,  116  Cal.  84;  58 
Am.  St.  Rep.  135;  47  Pac.  935.  All  per- 
sons interested  in  the  subject-matter  of 
the  litigation,  adverse  to  the  plaintiff, 
should  be  made  parties  defendant.  Shake- 
spear V.  Smith,  77  Cal.  638;  11  Am.  St.  Rep. 
327;  20  Pac.  294;  Randall  v.  Duff,  79  Cal. 
115;  3  L.  R.  A.  754;  19  Pac.  532;  21  Pac. 
610;  Birch  v.  Cooper,  136  Cal.  636;  69  Pac. 
420.     Persons  who   cannot   be   affected   by 


239 


PERSONS  HAVING  INTEREST — JOINED  AS  DEFENDANTS. 


§379 


the  jiulgment  are  not  proper  parties  (Smith 
V.  Lawrence,  38  Cal.  24;  99  Am.  Dee.  344); 
but  accommodation  grantees  are  necessary 
parties  defendant,  and  they  have  a  right 
to  be  heard  at  law  in  their  own  defense, 
before  a  court  of  chancery  can  pronounce 
definitely  on  their  claims.  Knowles  v. 
Inches,  12  Cal.  212.  The  owner  of  an 
equitable  right  to  a  part  of  the  proceeds 
of  a  note  is  not  a  necessary  party  to  an 
action  on  the  note.  Smith  v.  Woods,  164 
Cal.  291;  128  Pac.  748.  An  action  at  law 
for  damages  cannot  be  maintained  against 
several  defendants  jointly,  where  each 
acted  independently  of  the  others,  and 
there  was  no  concert  or  unity  of  design 
among  them.  Miller  v.  Highland  Ditch  Co., 
87  Cal.  430;  22  Am.  St.  Rep.  254;  25  Pac. 
550;  Lang  v.  Lilley  and  Thurston  Co.,  20 
Cal.  App.  223;  128  Pac.  1028.  Where  a 
wife  brings  an  action  to  quiet  title  to  land, 
to  remove  a  cloud  created  by  her  hus- 
band's deed,  the  grantee  of  the  husband 
is  the  only  necessary  party  defendant:  the 
holders  of  a  mortgage  executed  by  such 
grantee  are  not.  Peralta  v.  Simon,  5  Cal. 
313.  An  administrator  has  no  interest  in, 
nor  is  he  a  proper  party  to,  suits  to  deter- 
mine controversies  between  the  different 
heirs  as  to  their  rights  of  inheritance.  Es- 
tate of  Healy,  137  Cal.  474;  70  Pac.  455; 
Estate  of  Wright,  49  Cal.  550;  Rosenberg 
V.  Frank,  58  Cal.  387;  Roach  v.  Cofifey,  73 
Cal.  281;  14  Pac.  840;  Goldtree  v.  Thomp- 
son, 83  Cal.  420;  23  Pac.  383;  Jones  v. 
Lament,  118  Cal.  499;  62  Am.  St.  Rep.  251; 
50  Pac.  766;  McCabe  v.  Healy,  138  Cal.  81; 
70  Pac.  1008.  The  administrator  of  a  de- 
ceased debtor  or  promisor  may  be  joined 
with  survivors  jointly  liable  with  the  dece- 
dent to  the  plaintiff  (Lawrence  v.  Doolan, 
68  Cal.  309;  5  Pac.  484;  9  Pac.  159);  and 
the  administrator  of  a  deceased  executor 
may  be  joined  with  the  surviving  executor 
in  an  action  to  recover  attorneys'  fees  for 
services  rendered  the  executors  jointly 
(Briggs  V.  Breen,  123  Cal.  657;  56  Pac. 
633,  886) ;  but  before  the  adoption  of  the 
codes  it  was  otherwise.  Humphreys  v. 
Crane,  5  Cal.  173.  Adverse  claimants  to 
the  rent  of  property  are  all  necessary  par- 
ties to  an  action  by  a  tenant  to  obtain  a 
decision  as  to  who  is  entitled  to  receive 
the  rent.  McDevitt  v.  Sullivan,  8  Cal.  592. 
An  attorney,  charged  with  being  a  party 
to  a  fraud  in  obtaining  judgment  for  his 
client,  is  properly  joined  with  his  client 
in  a  suit  to  set  aside  the  judgment.  Crane 
v.  Hirshfelder,  17  Cal.  467.  Contractors 
under  an  independent  contract  are  alone 
responsible  for  injuries  occurring  in  the 
progress  of  the  work,  before  completion 
and  acceptance.  Bcswell  v.  Laird,  8  Cal. 
469;  68  Am.  Dec.  345.  In  an  action  to 
foreclose  a  lien  on  lots  assessed  for  street- 
work,  the  contractor  may  properly  join  as 
defendants,  in  one  action,  all  the  owners 
in  common  of  several  lots  (Barber  Asphalt 


Pav.  Co.  v.  Crist,  21  Cal.  App.  1;  130  Pac. 
435);  in  an  action  to  cancel  a  deed  of 
trust,  the  beneficiaries  are  not  necessary 
parties  defendant:  their  interest  is  rejire- 
sented  by  the  trustee.  Watkins  v.  Bryant, 
91  Cal.  492;  27  Pac.  775.  Judgment  must 
be  rendered  severally,  not  jointly:  a  JU(U- 
ment  against  a  surviving  obligor  must  be 
payable  de  bonis  propriis,  and  a  judgment 
against  an  administrator  must  be  payable 
de  bonis  testatoris,  in  due  course  of  admin- 
istration. Bank  of  Stockton  v.  Howland, 
42  Cal.  129;  Briggs  v.  Breen,  123  Cal.  657; 
56  Pac.  633,  886.  Two  defendants,  whose 
liability  is  based  upon  different  theories, 
cannot  be  joined.  Ilannon  v.  Nuevo  Land 
Co.,  14  Cal.  App.  700;  112  Pac.  1103.  One 
of  the  promisors  on  a  bond,  joint  and  sev- 
eral in  form,  may  be  sued  separately  there- 
on. Goff  V.  Ladd,  161  Cal.  257;  118  Pac. 
792.  Stockholders  may  be  made  parties, 
and  several  judgments  may  be  entered 
against  those  served,  or  who  appear. 
Turner  v.  Fidelity  Loan  Concern,  2  Cal. 
App.  122;  83  Pac.  62,  70.  All  stockholders, 
including  a  corporation  stockholder,  who 
were  such  when  the  debt  of  a  corporation 
was  incurred,  may  be  joined  as  parties  de- 
fendant. Kiefhaber  Lumber  Co.  v.  New- 
port Lumber  Co.,  15  Cal.  App.  37;  113  Pac. 
691.  If  stockholders,  in  behalf  of  the  cor- 
poration and  other  stockholders,  sue  the 
corporation  for  acts  complained  of,  that 
could  not  have  been  consummated  other- 
wise than  by  the  aid  of  the  directors,  such 
directors  are  proper  parties  defendant. 
Harvey  v.  Meigs,  17  Cal.  App.  353;  119 
Pac.  941.  A  temporary  injunction,  re- 
straining the  payment  of  dividends  on 
stock  in  a  corporation,  or  enjoining  the 
stockholders  from  voting  for  the  election 
of  directors,  will  not  be  granted,  unless 
the  stockholders  whose  rights  are  affected 
are  made  parties  to  the  action.  Willis  v. 
Lauridson,  161  Cal.  106;  118  Pac.  530. 
Parties  necessary  to  a  complete  deter- 
mination. An  executor  may  be  joined  with 
the  administrator  of  a  deceased  executor, 
in  an  action  to  recoA'er  attorneys'  fees  for 
services  rendered  to  the  executors  jointly. 
Briggs  V.  Breen,  123  Cal.  657;  56  Pac.  633, 
886.  Fictitious  depositaries  of  title  are 
necessary  parties  defendant,  and  they 
have  a  right  to  be  heard  at  law  in  their 
own  defense,  before  a  court  of  chancery 
can  pronounce  definitely  on  their  claims. 
Knowles  v.  Inches,  12  Cal.  212.  An  as- 
signee in  insolvency  is  a  necessary  party 
in  an  action  to  recover  the  possession  of 
property,  and  to  set  aside  a  conveyance 
thereof,  alleged  to  have  been  made  by  the 
judgment  debtor  in  fraud  of  the  creditors. 
Pfister  v.  Dascey,  65  Cal.  403;  4  Pac.  393. 
In  an  action  for  the  rescission  of  a  sale 
and  conveyance  of  property  to  trustees  for 
a  corporation,  on  the  ground  of  fraud,  the 
joinder  of  an  English  stockholder,  as  a 
plaintiff,   with   the   corporation   defrauded, 


§379 


PARTIES  TO  CIVIL  ACTIONS. 


240 


is  not  a  fatal  misjoinder,  where  he  holds 
bonds  and  stocks  of  the  corporation,  that 
may  have  to  be  canceled  or  transferred  as 
a  part  of  the  relief  asked.  California  Farm 
etc.  Co.  V.  Schiappa-Pietra,  151  Cal.  732; 
91  Pae.  593.  The  grantor  is  a  proper  but 
not  a  necessary  party  defendant  in  an 
action  to  subject  to  the  lien  of  a  judgment 
the  property  alleged  to  have  been  fraudu- 
lently conveyed.  Blanc  v.  Paymaster  Min- 
ing Co.,  95  Cal.  524;  29  Am.  St.  Bep.  149; 
30  Pac.  765.  A  guardian  is  not  a  proper 
party  in  an  action  affecting  only  the  ward's 
interest.  O'Shea  v.  Wilkinson,  95  Cal.  454; 
30  Pac.  5S8.  The  guardian  appears  in  the 
action,  sim]ily  to  manage  and  take  care  of 
the  interests  of  the  infant,  and  is  no  more 
a  party  to  the  action  than  the  attorney 
who  a^jpears  for  one  who  has  attained  his 
majority.  Emerie  v.  Alvarado,  64  Cal.  529; 
2  Pac.  418;  Justice  v.  Ott,  87  Cal.  530;  25 
Pac.  691;  O'Shea  v.  Wilkinson,  95  Cal.  454; 
30  Pac.  588.  The  heirs  of  a  deceased  mort- 
gagor are  not  necessary  parties  to  an  ac- 
tion to  foreclose  the  mortgage.  Finger  v. 
McCaughey,  119  Cal.  59;  51  Pac.  13;  Cun- 
ningham V.  Ashley,  45  Cal.  485;  De  Halpin 
V.  Oxarart,  58  Cal.  101;  Bayly  v.  Muehe,  65 
Cal.  345;  3  Pae.  467;  4  Pac.  486;  Monterey 
County  V.  Cushing,  83  Cal.  507;  23  Pac. 
700;  Spotts  V.  Hanle}',  85  Cal.  155;  24  Pac. 
738;  Collins  v.  Scott,  100  Cal.  446;  34  Pac. 
1085.  Several  tort-feasors,  not  acting  in 
concert  or  by  unity  of  design,  are  not 
liable  to  a  joint  action  for  damages,  al- 
though the  consequences  of  the  several 
torts  have  united  to  produce  an  injury  to 
the  plaintiff,  but  a  joint  action  may  be 
maintained  to  restrain  them  all  from  con- 
tinuing the  wrong.  Miller  v.  Highland 
Ditch  Co.,  87  Cal.  430;  22  Am.  St.  Rep. 
254;  25  Pae.  550;  People  v.  Gold  Run  etc. 
Min.  Co..  66  Cal.  138;  56  Am.  Rep.  80;  4 
Pac.  1152.  To  restrain  the  issuance  of 
bonds  by  a  corporation,  it  is  necessary  that 
some  of  the  persons  to  whom  the  bonds  are 
to  be  issued  shall  be  made  parties.  Hutch- 
inson V.  Burr,  12  Cal.  103;  Patterson  v. 
Board  of  Supervisors,  12  Cal.  105.  To 
restrain  the  opening  of  a  road  by  the  road- 
overseer  of  the  district,  the  board  of  super- 
visors are  properh-  joined  as  defendants 
with  the  road-overseer,  where  the  com- 
plaint alleges  that  there  never  has  been 
any  road  or  highway  over  or  across  the 
premises,  and  that  one  of  the  defendants, 
who  is  the  road-overseer,  and  who  is  in- 
solvent, instigated  and  abetted  by  the 
other  defendants,  who  are  the  board  of 
supervisors,  had  trespassed  upon  the  plain- 
tiff's premises,  etc.,  for  the  purpose  of  con- 
structing the  road.  Myers  v.  Daubenbiss, 
84  Cal.  1;  23  Pac.  102*7.  The  real  owner 
of  the  equity  of  redemption  is  a  necessary 
party,  in  an  action  to  foreclose  a  fraudu- 
lent mortgage.  Randall  v.  Duff,  79  Cal. 
115;  3  L.  R.  A.  754;  19  Pac.  532;  21  Pac. 
610.     Where  a  husband  is  sued  in  an  action 


of  partition  of  land  claimed  as  the  home- 
stead, the  wife  is  a  necessary  party.  De 
Uprey  v.  De  Uprey,  27  Cal.  329;  87  Am. 
Dee.  81.  Where  H.  &  Co.  was  sued  as  a 
partnership^  but  there  was  a  failure  to 
prove  that  others  were  connected  with  H. 
in  the  transaction,  "&  Co."  may  be  treated 
as  surplusage,  and  the  action  proceed 
against  H.  alone.  Mulliken  v.  Hull,  5  Cal. 
245.  The  non-joinder  of  a  secret  partner, 
whose  relation  to  the  firm  was  not  known 
to  the  plaintiff,  cannot  be  objected  to  by 
the  defendant.  Tomlinson  v.  Spencer,  5 
Cal.  291.  Vv'here  producers  contract  to  sell 
their  product  to  an  association,  which 
brings  an  action  for  an  accounting,  and 
each  producer  is  equitably  interested  in 
the  fund  derived  from  a  sale  of  the  sea- 
son's product  held  by  the  plaintiff  for  dis- 
tribution, a  demurrer  for  misjoinder  of 
causes  and  parties  defendant  is  properly 
overruled.  California  Raisin  Growers' 
Ass'n  V.  Abbott,  160  Cal.  601;  117  Pac.  767. 
Where  a  consignment  of  merchandise  was 
made  to  two  defendants  as  partners,  and, 
after  a  dissolution  of  the  partnership,  two 
sales  of  a  portion  of  the  goods  were  made, 
one  by  each,  and  each  received  the  pur- 
chase-money, the  partnership  continues  for 
the  i^urpose  of  fulfilling  engagements,  and 
the  defendants  are  jointly  liable.  Johnson 
V.  Totten,  3  Cal.  343;  58  Am.  Dec.  412.  In 
an  action  for  a  dissolution  and  accounting, 
all  persons  having  an  interest  in  the  part- 
nership are  necessary  parties  (Settembre  v. 
Putnam,  30  Cal.  490;  Young  v.  Hoglan, 
52  Cal.  466;  Wright  v.  Ward,  65  Cal.  525; 
4  Pac.  534);  and  the  assignee  of  a  partner 
is  a  necessary  party  to  such  action,  because 
no  complete  determination  of  the  contro- 
versy^ can  be  had  without  his  presence. 
Cuvamaca  Granite  Co.  v.  Pacific  Paving 
Co.",  93  Cal.  252;  30  Pac.  525;  Harrison 
V.  McCormick,  69  Cal.  616;  11  Pac.  456. 
Where  two  persons  purchased  partnership 
property  from  one  of  two  partners,  who 
had  taken  forcible  possession,  the  other 
partner  cannot  maintain  a  joint  action 
against  the  partner  selling  and  the  pur- 
chasers. Mason  v.  Tipton,  4  Cal.  276.  A 
patentee  is  a  necessary  party  in  an  action 
to  avoid  or  set  aside  a  patent  for  fraud  in 
its  procurement,  and  his  right  cannot  be 
impaired  or  determined  in  an  action  be- 
tween third  parties.  Boggs  v.  Merced  Min- 
ing Co.,  14  Cal.  279.  In  an  action  against 
a  trustee,  for  an  accounting,  the  bene- 
ficiaries are  necessary  parties,  to  protect 
the  trustee  against  further  litigation.  Ali- 
son V.  Goldtree,  117  Cal.  545;  49  Pac.  571. 
There  is  a  broad  distinction  between  ac- 
tions brought  in  opposition  to  trusts  and 
those  brought  to  enforce  them;  in  the 
former,  the  beneficiaries  are  not  necessary 
parties;  in  the  latter,  thev  are.  Watkins 
V.  Bryant,  91  Cal.  492;  27  Pac.  775.  In 
an  action  for  the  rescission  of  a  sale  and 
conveyance   of  property  to  trustees  for  a 


241 


PERSONS  HAVING  INTEREST — JOINED  AS  DEFENDANTS, 


§379 


corporation,  the  trustees,  if  they  hold  title 
to  the  property  at  the  beginuing  of  the 
action,  are  properly  joined  as  parties  de- 
fendant; they  ilo  not  become  improper  par- 
ties because,  pending  the  action,  they  part 
with  their  interest.  California  Farm  etc. 
Co.  V.  Schiappa-Pietra,  151  Cal.  732;  91 
Pac.  593.  Where  an  intestate  had  violated 
a  contract,  made  in  his  lifetime,  to  leave 
a  will  in  fy,vor  of  his  nephew,  who  had 
fully  jierformed  the  contract  on  his  part, 
and  the  nephew  brings  an  action  to  en- 
force a  constructive  trust  against  the  heirs, 
the  administrator  has  no  interest  in  the 
litigation,  and  is  not  a  necessary  part}'. 
McCabe  v.  Healy,  138  Cal.  81;  70  Pac.  1008. 
A  subsequent  vendee  is  a  necessary  party 
to  an  action  by  his  vendor  against  the  first 
vendee  to  quiet  title  to  land.  Birch  v. 
Cooper,  136  Cal.  636;  69  Pac.  420.  The 
vendee  of  land,  purchasing  after  the  ter- 
mination of  a  lease  thereon,  is  a  proper 
party  defendant  in  an  action  by  the  lessee 
against  the  lessor-vendor  to  recover  for  the 
value  of  improvements  made,  where  the 
complaint  asks  to  have  the  amount  de- 
clared a  lien  on  the  land,  and  the  land 
sold  in  satisfaction  thereof.  Gardner  v. 
Samuels,  116  Cal.  84;  58  Am.  St.  Eep.  135; 
47  Pac.  935.  A  promise  to  pay  for  im- 
provements is  personal,  and  does  not  run 
with  the  land  (Gardner  v.  Samuels,  116 
Cal.  84;  58  Am.  St.  Eep.  135;  47  Pac.  935); 
and  such  agreement  does  not  bind  the  as- 
signee of  the  lessor  of  land,  where  the 
breach  of  covenant  took  place  before  he 
took  possession.  Bailey  v.  Richardson,  66 
Cal.  416;  5  Pac.  910.  In  the  absence  of 
an  agreement  in  the  lease  to  that  effect, 
the  tenant  has  no  lien  on  the  land  for  im- 
provements placed  thereon,  during  the 
term  of  his  lease,  under  an  agreement  with 
his  landlord  to  pay  for  the  same  at  the 
expiration  of  the  lease.  Gardner  v.  Sam- 
uels, 116  Cal.  84;  58  Am.  St.  Rep.  135;  47 
Pac.  935.  In  a  judgment  creditors'  suit 
upon  a  stockholder's  subscription,  all  the 
stockholders  should  be  made  parties,  so 
far  as  practicable,  unless  some  valid  ex- 
cuse is  shown  for  not  bringing  them  in. 
Turner  v.  Fidelity  Loan  Concern,  2  Cal. 
App.  122;  83  Pac.  62,  70.  Where  the  com- 
l)laint  charged  that  a  defendant  was  in- 
debted to  the  plaintiffs,  and  had  combined 
with  another  to  defraud  them,  such  defend- 
ant is  a  necessary  party.  Lucas  v.  Payne, 
7  Cal.  92.  In  the  absence  of  any  provision 
by  the  legislature,  the  state  cannot  be 
sued  (People  v.  Talmage,  6  Cal.  256);  and 
it  is  not  a  necessary  party  to  a  suit  by  a 
citizen,  who  claims  to  have  been  injured 
by  the  alleged  failure  of  a  state  officer 
to  do  his  dutv.  Nougues  v.  Douglass,  7 
Cal.  65. 

Defendant  in  action  to  determine  title 

or   right    of   possession   to    real    property. 

Before  the  adoption  of  this  section,  if  the 

landlord   was  joined  with  his  tenant,   and 

1  Fair. — 16 


the  evidence  at  the  trial  did  not  show  that 
he  was  in  possession  of  any  part  of  the 
premises,  he  was  entitled  to  a  nonsuit 
(Hussman  v.  Wilke,  50  Cal.  250);  but  the 
court  had  power  to  substitute  the  landlord 
for  the  tenant  in  possession,  in  an  action 
in  ejectment,  after  notice  and  motion  for 
that  purpose.  Reay  v.  Butler,  69  Cal.  572; 
11  Pac.  463.  The  tenant  having  notified 
the  landlord,  as  required  by  the  Civil  Code, 
of  the  pendenc}'  of  an  action,  and  per- 
mitted him  to  appear  and  defend  in  the 
tenant's  name,  the  latter  cannot  interfere 
with  any  of  the  subsequent  proceedings  to 
the  landlord's  injury.  Valentine  v.  Ma- 
honey,  37  Cal.  389.  The  landlord  and  a 
tenant  in  possession  are  proper  parties 
defendant.  Easton  v.  O'Reilly,  63  Cal.  305; 
Oakland  Gas  Light  Co.  v.  Dameron,  67  Cal. 
663;  8  Pac.  595. 

How  judgment  may  he.  See  note  post, 
§§578,579. 

CODE    COMMISSIONERS'   NOTE.      1.  Parties 

unitel  in  interest.  All  yiin'ties  united  in  interest 
should  be  joined      See  §  i!82,  post. 

2.  Tenants  in  common.  One  or  more  may  be 
defendants.  See  §384,  post;  also  §378,  ante, 
note.     See  also  S  382,  post. 

3.  When  one  party  may  defend  for  all.  See 
§  382,  post. 

4.  Married  women.    See  §  370,  ante. 

5.  Executor,  administrator,  etc.    See  §  369,  ante. 

6.  Infants,  guardians,  etc.    See  §  372,  ante. 

7.  Trustees  of  express  trust.     See  §  369,  ante. 

8.  Partners.  May  be  sued  in  firm  name.  §  388, 
post. 

9.  Actions  to  quiet  title.    See  §  738,  post. 

10.  Personal  representatives  and  successors  in 
interest.    See  §  38.5,  post. 

11.  Parties  severally  liable  upon  the  same  obli- 
gation.     See  §  383,  post. 

12.  If  a  necessary  party  will  not  consent  to 
be  joined  as  plaintiff,  he  may  be  made  defendant. 
See  S  382,  post. 

13.  Substitution  of  another  party  as  defendant. 
See  §  386,  post.  See  also  §  389,  post,  party  desir- 
ing to  be  made  a  defendant. 

14.  Interveners.     See  §  387,  post. 

15.  Action  against  state.  The  state  cannot  be 
sued.     People  v.  Talmage,  6  Cal.  256. 

16.  Construction  of  section  as  to  ejectment 
suits.  Former  law  as  to  landlord  and  tenant, 
when  parties  to  ejectment  suit  modified.  The  last 
sentence,  "And  in  an  action  to  determine  the  title 
or  right  of  possession  to  real  property,  which,  at 
the  time  of  the  commencement  of  the  action,  is 
in  the  possession  of  a  tenant,  the  landlord  may 
be  joined  as  a  party  defendant,"  was  added  to 
avoid  the  rule  laid  down  in  Dimick  v.  Deringer, 
32  Cal.  48S,  that,  "when  the  premises  are  in  pos- 
session of  a  tenant,  the  tenant  is,  and  the  land- 
lord is  not,  a  proper  party  defendant."  All  who 
have  given  the  subject  any  consideration  will. con- 
cede that  the  plaintiff  ou,<;ht  to  have  the  right  to 
make  the  landlord  a  party  to  the  action,  and  to 
bind  him  by  the  judgment,  otherwise  he  would, 
in  every  such  case,  be  driven  to  two  actions  to 
determine  what  could  as  well  be  settled  in  one. 
The  additional  clause  changes,  to  a  great  extent, 
the  construction  heretofore  given  to  this  section 
(Practice  Act,  §  13)  by  our  courts.  The  reasons 
for  the  change  are  apparent,  and  attention  has 
long  since  been  called  to  its  necessity  by  our  su- 
preme court.  In  Valentine  v.  Mahoney,  37  Cal. 
393,  the  court  say:  "It  was  decided  at  an  early 
day  in  this  court,  that  the  provision  of  this  sec- 
tion, that  'any  person  may  be  made  a  defendant 
who  has  or  claims  an  interest  in  the  controversy 
adverse  to  the  plaintiff.'  was  not  applicable  to 
actions  of  ejectment  (Garner  v.  Marsh-ill.  9  '^'■1. 
270;   see  also  Hawlvins  v.  Rechert,  28   Cal.  534)^ 


§379 


PARTIES  TO   CIVIL   ACTIONS. 


242 


and  that  construction  has  prevailed  to  the  pres- 
ent time.  But  it  is  readily  seen  that  in  all  cases 
in  which  the  defendant  is  holding  under  a  lease, 
and  the  lessor's  title  is  in  issue,  it  is  proper,  if 
not  necessary,  that  the  latter  should  have  an 
opportunity  to  participate  in  the  defense,  for  no 
one  is  as  competent  to  present  and  defend  his 
title  as  he.  The  landlord,  having  been  in  posses- 
sion, and  having  transferred  it  to  the  tenant, 
ought  not  to  be  deprived  of  the  possession  at  the 
expiration  of  the  term  by  proceedings  in  which 
he  could  take  no  part.  And,  on  the  other  hand, 
the  party  holding  the  true  title  might  be  kept  out 
of  possession  for  years,  should  the  person  claim- 
ing the  adverse  title  lease  the  premises  to  differ- 
ent persons  for  such  short  terms  that  the  tenancy 
of  any  one  would  expire  before  a  suit  against  him 
could  be  prosecuted  to  final  judgment.  But  this 
construction  of  that  section  has  been  too  long 
maintained  to  be  departed  from  by  the  courts,  and 
if  a  change  in  the  rule  is  desirable  or  necessary, 
it  must  come  from  the  legislature.  Considera- 
tions of  the  character  alluded  to  have  induced  the 
courts  to  give  some  regard  to  the  rights  and  posi- 
tion of  the  landlord,  and  it  is  held  that  when  the 
tenant  has  notified  the  landlord  of  the  pendency 
of  the  action,  and  has  permitted  him  to  appear 
and  defend  in  the  tenant's  name,  the  tenant  can- 
not interfere  with  any  subsequent  proceedings  to 
the  prejudice  of  the  landlord.  See  Button  v.  War- 
schauer,  21  Cal.  619;  82  Am.  Dec.  76.5;  Calder- 
wood  V.  Brooks,  28  Cal.  156;  Dimick  v.  Deringer, 
32  Cal.  488.  In  Button  v.  Warsehauer,  although 
the  opinion  of  Mr.  Chief  Justice  Field  was  not 
e-xpressly  concurred  in  by  Mr.  Justice  Cope  and 
Mr.  Justice  Norton,  it  is  apparent  that  the  case 
is  authority  for  the  position  above  stated,  from 
the  fact  that  the  tenant,  who  was  the  defendant, 
executed  a  release  of  errors,  and  that,  notwith- 
standing this,  the  court,  at  the  instance  of  the 
landlord  of  the  defendant,  reviewed  the  cause  and 
reversed  the  judgment.  If  the  landlord,  though 
not  nominally  a  party  to  the  record,  when  once 
permitted  by  the  tenant  to  appear  and  defend  the 
action,  can  insist  upon  the  right  to  conduct  the 
defense  from  that  point,  this  right  cannot  spring 
from  the  notice  from  the  tenant  to  assume  the 
burden  of  the  defense,  but  proceeds  from  the  fact 
that  he  will  be  affected  by  the  judgment.  The 
judgment  is  conclusive,  both  upon  the  landlord 
and  tenant,  in  a  subsequent  action  between  them, 
involving  the  issue  of  eviction  of  the  tenant  by 
virtue  of  the  judgment   (Wheelock  v.  Warsehauer, 

21  Cal.  309;  Wheelock  v.  Warsehauer,  34  Cal. 
265);  and  this  is  another  instance  in  which  the 
judgment  binds  others  than  the  parties  to  the  rec- 
ord and  their  privies.  A  possible  future  contro- 
versy between  the  landlord  and  tenant  was  not 
the  only  nor  the  principal  purpose  in  view  in 
securing  to  the  landlord  the  right  to  defend  the 
action  in  the  tenant's  name,  but  it  was,  that  the 
issue  between  the  plaintiffs  and  the  landlord's 
title  might  be  litigated  and  determined."  Valen- 
tine V.  Mahoney,  37  Cal.  393.  The  change  made 
materially  modifies  the  decisions  of  the  supreme 
court  as  to  proper  parties  to  an  ejectment  suit. 
Among  the  decisions  thus  modified,  to  some  ex- 
tent at  least,  are  the  following:  Winans  v.  Christy, 
4  Cal.  70;  60  Am.  Dec.  597;  Ritchie  v.  Borland, 
6  Cal.  33;  Garner  v.  Marshall,  9  Cal.  268;  War- 
ing  V.    Crow,    11    Cal.    366;    Sampson   v.    Ohleyer, 

22  Cal.  200;  Hawkins  v.  Reichert,  28  Cal.  535; 
Dimick  v.  Deringer.  32  Cal.  489;  Valentine  v. 
Mahoney,  37  Cal.  393.  And  this  modification  ex- 
tends also  to  other  cases.  The  rule  of  law  laid 
down  by  the  supreme  court  heretofore  has  been, 
that  ejectment  was  a  possessory  action,  and  must 
be  brought  against  the  occupant;  it  determines 
no  rights  but  those  of  possession  at  the  time,  and 
it  matters  not  who  has,  or  claims  to  have,  the 
title  of  the  premises.  Garner  v.  Marshall,  9  Cal. 
268;  Burke  v.  Table  Mountain  Water  Co.,  12  Cal. 
403;  Dutton  v.  Warsehauer,  21  Cal.  609;  82  Am. 
Dec.  765;  Fogarty  v.  Sparks,  22  Cal.  148;  Owen 
v.  Fowler.  24  Cal.  192;  Lyle  v.  Rollins,  25  Cal. 
440;  Hawkins  v.  Reichert,  28  Cal.  534;  Klink  v. 
Cohen,  13  Cal.  623. 

17.  Parties  to  a  foreclosure  suit.      It  has  been 
held,   in   an   action   for   the   foreclosure   of  a  mort- 


gage, if  the  creditor,  the  debtor,  and  the  title  to 
the  mortgaged  premises  are  before  the  court,  it 
has  jurisdiction  of  the  case,  though  there  may  be 
other  holders  of  distinct  liens  who  might  have 
been  made  parties  to  the  suit,  and  were  omitted. 
Hayward  v.  Stearns,  39  Cal.  58. 

18.  A  defendant  in  possession,  not  directly  in- 
terested in  the  question  in  litigation  between  other 
parties  to  the  action,  should  not  be  affected  by 
the  results  of  such  litigation.  Welton  v.  Palmer, 
39  Cal.  456. 

19.  Foreclosure  of  mortgages.  In  actions  to 
foreclose  mortgages,  all  persons  interested  should 
be  made  parties;  and  as  to  who  should  be  joined 
as  defendants,  see  Burton  v.  Lies,  21  Cal.  87; 
Boggs  V.  Fowler,  16  Cal.  559;  76  Am.  Dec.  561; 
Goodenow  v.  Ewer,  16  Cal.  461;  76  Am.  Dec. 
540;  Horn  v.  Jones,  28  Cal.  194;  De  Leon  v. 
Higuera,  15  Cal.  483;  Montgomery  v.  Tutt,  11 
Cal.  307;  Luning  v.  Brady,  10  Cal.  265;  Hocker 
V.  Reas,  18  Cal.  650;  Bludworth  v.  Lake,  33  Cal. 
255;  Id.,  33  Cal.  265;  Carpentier  v.  Williamson, 
25  Cal.  159;  Belloc  v.  Rogers,  9  Cal.  123;  Fallon 
V.  Butler.  21  Cal.  24;  81  Am.  Dec.  140;  Skinner 
V.  Buck,  29  Cal.  2.53;  Eastman  v.  Turman,  24 
Cal.  382;  Heyman  v.  Lowell,  23  Cal.  106.  All 
persons  interested  in  the  premises  prior  to  a  suit 
brought  to  foreclose  a  mortgage,  or  to  enforce  a 
mechanic's  lien,  whether  purchasers,  lienholders, 
devisees,  remaindermen,  reversioners,  or  encum- 
brancers, must  be  made  parties,  otherwise  their 
rights  will  not  be  affected.  Persons  who  acquire 
interests  by  conveyance  or  encumbrance  after  suit 
brought  need  not  be  made  parties;  and  who  are 
and  who  are  not  proper  parties  to  a  foreclosure 
suit,  is  carefully  discussed  in  Whitney  v.  Hig- 
gins.  10  Cal.  547,  70  Am.  Dec.  748,  and  authori- 
ties there  cited.  A  tenant  need  not,  from  the 
mere  fact  of  his  tenancy,  be  made  a  party  to  the 
foreclosure  suit.  McDermott  v.  Burke,  16  Cal. 
580. 

20.  Community  property.  Where  the  commu- 
nity property  of  husband  and  wife,  or  the  separate 
property  of  the  wife,  is  the  subject  of  an  action 
for  foreclosure.  See  Kohner  v.  Ashenauer,  17 
Cal.  578;  Revalk  v.  Kraeraer,  8  Cal.  66;  68  Am. 
Dec.  304;  Marks  v.  Marsh,  9  Cal.  96;  Powell  v. 
Ross,  4  Cal.  197;  see  note  to  §§  370,  371,  ante. 

21.  Equitable  actions.  All  persons  interested 
legally  or  beneficially  should  be  made  parties.  See 
Wilson  V.  Castro,  31  Cal.  420,  commented  on  in 
note  to  §  378,  ante. 

22.  Trustees  and  assignees.  If  a  debtor  as- 
signs his  property  to  trustees,  to  be  by  them  sold, 
and  proceeds  divided  pro  rata  among  the  cred- 
itors, one  creditor  cannot,  after  the  property  has 
been  converted  into  money,  maintain  an  action 
against  the  trustees  for  an  accounting  and  for 
judgment  for  his  pro  rata  share,  without  making 
the  other  creditors  parties  and  the  assignor  a  de- 
fendant. McPherson  v.  Parker,  30  Cal.  455;  89 
.^.m.  Dec.  129.  Where  A  owed  plaintiff,  and  con- 
veyed his  property  to  B,  to  be  sold  for  his  bene- 
fit, and  drew  an  order,  in  favor  of  plaintiff,  on 
B,  who  accepted  it,  and  it  was  charged  that  B  had 
subsequently  conveyed  a  portion  of  the  property 
to  A  without  consideration,  praying  that  B  be 
compelled  to  execute  the  trust  in  favor  of  plain- 
tiff. Held:  that  A  was  a  proper  and  necessary 
party  to  the  action.  Lucas  v.  Payne,  7  Cal.  92. 
In  an  action  by  one  of  several  cestuis  que  trust, 
to  declare  and  enforce  an  implied  trust  in  rela- 
tion to  land,  all  the  persons  who  are  entitled  to, 
or  claim  to  be  entitled  to,  a  portion  of  the  trust 
estate,  are  proper  parties  defendant.  Jenkins  v. 
Frink,  30  Cal.  586;  89  Am.  Dec.  134. 

23.  Assignees.  The  vendor,  or  the  assignee  of 
the  rights  and  claims  of  the  vendor,  is  not  bound 
to  know  every  assignee,  though  they  were  numer- 
ous.    Truebody  v.  Jacobson,  2  Cal.  286. 

24.  Parties  to  action  between  mining  partners, 
and  to  dissolve  mining  partnership.  Where  two 
of  three  partners  in  a  mine  make  a  contract  with 
a  person  not  interested  in  the  same,  by  which  he 
becomes  entitled  to  a  share  of  their  interests,  and 
a  like  share  of  the  profits  of  their  interests,  the 
two  are  the  only  necessary  parties  defendant  in 
an  action  brought  by  the  person  they  contract 
with,  to  determine  his  right  to  a  share  in  the  mine 


243      PARTIES  DEFENDANT  IN  ACTION  TO  DETERMINE  CONFLICTING  CLAIMS.      §  380 


and  a  corrpsponding  share  of  ths  pr;)fits  on  their 
interest.  But  in  an  action  to  tal'e  account  of  a 
mining  partnership  and  dissolve  the  same,  and 
sever  the  interests  of  the  several  partners,  all 
those  owning  interests  in  the  partnershi])  are 
necessary  parties.  Settembre  v.  Putnam,  30  Cal. 
490  (syllabus). 

25.  Persons  not  made  parties  not  affected  by 
suit,  'i'he  rights  of  a  third  party  cannot  be  de- 
termined or  impaired  in  any  suit  between  two 
other  parties.  Boggs  v.  Merced  Mining  Co.,  114 
Cal.  279. 

26.  Parties  to  action  to  enjoin  issuance  of 
county  bonds,  etc.  In  an  action  to  enjoin  the 
issuance  of  bonds,  it  may  be  necessary  that  some 
of  the  persons  to  whom  the  bonds  are  to  be  issued 
should  be  joined  as  defendants.  See  Hutchinson 
V.  Burr,  12  Cal.  103;  Patterson  v.  Board  of  Super- 
visors, 12  Cal.  105. 

27.  Attorney  joined  with  his  client,  when. 
Where  there  has  been  fraud  in  obtaining  a  judg- 
ment, if  the  attorney  is  a  party  to  the  fraud  he 
may  be  joined  with  his  client  as  a  defendant,  in 
an  action  to  set  aside  the  judgment.  Crane  v. 
Hirshfelder,   17  Cal.  467. 

28.  Unknown  defendant.  When  the  name  of 
the  defendant  is  unknown,  fictitious  name  may  be 
tised,  etc.      See  §  474,  post. 

29.  Real  estate  may  be  made  a  party  in  actions 
in  rem,  as  for  collection  of  taxes,  etc.  See  People 
V.  Rains,  23  Cal.  131. 

30.  Principal  and  agent,  or  attorney.  When 
the  principal,  or  when  the  agent,  is  liable.  See 
Engels  V.  Heatly,  5  Cal.  136;  Haskell  v.  Cornish, 
13  Cal.  45;  McDonald  v.  Bear  River  etc.  Mining 
Co.,  13  Cal.  221;  Shaver  v.  Ocean  Mining  Co.,  21 
Cal.  45 ;  Love  v.  Sierra  Nevada  etc.  Mining  Co., 
32  Cal.  639;  91  Am.  Dec.  602;  Hall  v.  Crandall, 
29  Cal.  568;   89  Am.  Dee.   64. 

31.  Actions  against  counties,  supervisors,  etc. 
See  §  378,  ante,  and  note.  In  an  action  against 
or  for  a  county,  it  must  be  in  the  name  of  the 
county,  not  in  the  name  of  the  people.  People  v. 
Myers,  15  Cal.  33;  McCann  v.  Sierra  County,  7 
Cal.  121;  Price  V.  Sacramento  County,  6  Cal.  254; 
see  also,  however,  Oilman  v.  Contra  Costa  Countv, 
8  Cal.  52;  68  Am.  Dec.  290;  Hastings  v.  San 
Francisco,  18  Cal.  49.  The  right  to  sue  a  county 
is  not  confined  to  actions  of  tort,  malfeasance, 
etc.,  but  extends  to  all  accounts  after  their  pres- 
entation to  the  board  of  supervisors.  People  v. 
Board  of  Supervisors,  28  Cal.  431.  But  the  ac- 
count or  claim,  of  whatever  nature,  must  have 
been  first  presented  to  the  supervisors,  and  re- 
jected, before  any  action  thereon  can  be  main- 
tained against  the  county.  McCann  v.  Sierra 
County,  7  Cal.  121.  The  agents  of  the  county, 
and  its  officers,  may  be  joined  as  defendants  in 
certain  cases.  McCann  v.  Sierra  County,  7  Cal. 
121.  At  least  a  majority  of  the  piembers  of  the 
■board  of  supervisors  should  be  made  defendants 
in  an  action  brought  to  enjoin  the  board  from 
purchasing  property  for  the  use  of  the  county. 
Trinity  County  v.  McCammon,  25  Cal.  119;  see 
further.   Political  Code,   S  4000. 

32.  Joinder  of  parties  who  have  no  joint  in- 
terest. It  seems  that  the  joinder  of  two  persons 
as  co-defendants,  who  have  no  joint  interest  in 
the  subject:matter  of  the  suit,  and  are  under  no 


joint  liability,  will,  unless  the  mistake  be  cor- 
rected in  the  court  below,  bo  error.  Sterling  v. 
liiinson.   1   Cal.    I7s. 

33.  Accommodation  grantees  and  fictitious  de- 
positaries of  title.  When  may  be  made  parties. 
It  was  shown  that  some  of  the  parlies  were  mere 
accommodation  grantees  and  fictitious  depositaries 
of  title;  but  it  was  held  that  they  have  a  right  to 
be  heard  at  law  in  their  own  defense,  before 
courts  of  chancery  can  pronounce  definitely  on 
their  claims,  however  false  they  may  appear, 
inter   alia.      Knowles    v.   Inches,    12    Cal.    212. 

34.  Action  against  one  attaching  creditor  by 
a  subsequent  attaching  creditor.  Property  was 
seized  under  two  attachments,  and  wa.s  claimed 
by  a  third  party.  Both  attaching  creditors  in- 
demnified the  sheriff,  who  proceeded  to  sell  it, 
and  paid  the  proceeds  to  the  first  attaching  cred- 
itor, the  amount  not  equaling  his  judgment;  and 
afterwards  the  party  claiming  the  property  ob- 
tained judgment  against  the  sheriff  for  the  value 
of  the  property.  Held:  That  the  recourse  must 
be  had  against  the  first  attaching  creditor,  for 
whose  benefit  the  property  was  sold.  In  such  a 
case  the  attaching  creditors  do  not  stand  in  the 
position  of  joint  trespassers,  the  seizure  of  the 
second  being  subject  to  the  first.  Davidson  v. 
Dallas,  8  Cal.  227. 

35.  Actions  against  contractors  by  third  par- 
ties for  damages  to  property  of  such  parties. 
Where  parties  employed  architects,  reputed  to  be 
skilled  in  their  profession,  to  construct,  at  a 
designated  point  on  a  creek,  a  dam  or  embank- 
ment, of  certain  specific  dimensions,  capable  of 
resisting  all  floods  and  freshets  of  the  stream  for 
the  period  of  two  years,  and  to  deliver  it  com- 
pletely by  a  given  time,  and  before  the  embank- 
ment was  completed  it  was  broken  by  a  sudden 
freshet',  and  a  large  body  of  water,  confined  by 
it,  rushed  down  the  channel  of  the  stream,  carry- 
ing away  and  destroying  in  its  course  the  store 
of  plaintiffs,  with  their  stock  of  merchandise. 
The  employers  exercised  no  supervision,  gave  no 
directions,  furnished  no  materials,  nor  had  they 
accepted  the  work.  Plaintiffs  brought  suit  to  re- 
cover the  damage  sustained  by  them  against  the 
employers  and  contractors.  Held:  that  the  lat- 
ter alone  were  liable.  The  relation  of  the  par- 
ties is  that  of  independent  contractors.  The 
relation  of  master  and  servant,  or  superior  and 
subordinate,  did  not  exist  between  them,  and 
therefore  the  doctrine  respondeat  superior  does 
not  apply  to  the  case.  Boswell  v.  Laird,  8  Cal. 
469;    68   Am.    Dec.    345. 

36.  Actions  on  contracts.  In  an  action  on  a 
contract,  only  the  contractors  therein  can  be 
made  parties.     See   Barber  v.   Cazalis,    30   Cal.  92. 

37.  Actions  against  public  officers.  A  public 
officer,  who  stands  in  the  relation  of  agent  of  the 
government,  or  of  the  public,  is  not  personally 
liable  upon  contracts  made  by  him  as  such  officer, 
and  within  the  scope  of  his  'legitimate  duties; 
but  this  reason  does  not  apply  when  neither  the 
government  nor  the  public  in  any  way  can  be 
considered  or  held  responsible  for  a  contract 
made  by  a  person,  although  a  public  officer. 
Dwindle  V.   Henriquez.   1  Cal.  392. 

38.  Action  for  malicious  prosecution.  Dreux  v 
Domec,  18  Cal.  83. 


§  380.  Parties  defendant  in  an  action  to  determine  conflicting-  claims  to 
real  property.  In  an  action  brought  b}'  »  person  ont  of  possession  of  real 
property,  to  determine  an  adverse  claim  of  an  interest  or  estate  therein,  the 
person  making  such  adverse  claim  and  persons  in  possession  may  be  joined 
as  defendants,  and  if  the  judgment  be  for  the  plaintiff,  he  may  have  a  writ 
for  the  possession  of  the  premises,  as  against  the  defendants  in  the  action, 
against  whom  the  judgment  has  passed. 


Actions  to  quiet  title.     See  post,  §  738. 
Writ  of  possession.     See  post,  §  682. 
Tresh  parties,  bringing  in.     See  post,  §  3  89. 
Kon-joinder  or  misjoinder  of  parties.    See  post, 
5  430. 


Legislation  §  380.  1.  Enacted  March  11,  1872, 
and  then  read:  "In  an  action  brought  by  a  per- 
son out  of  possession  of  real  property  to  deter- 
mine an  adverse  claim  of  an  interest  or  estate 
therein,    the    person    making    such    adverse    claim 


PARTIES  TO   CIVIL  ACTIONS. 


244 


in  possession,  the  plaintiff  cannot  have 
judgment  that  his  title  be  quieted,  and 
that  defendant  be  removed  from  posses- 
sion; because  the  findings  and  the  judg- 
ment, so  far  as  the  possession  is  concerned, 
are  in  contradiction  of  the  complaint,  and 
the  plaintiff  cannot  have  a  judgment  in 
direct  contradiction  of  the  complaint. 
Bryan  v.  Tormey,  3  Cal.  Unrep.  85;  21 
Pac.  725;  Von  Drachenfels  v.  Doolittle,  IT 
Cal.  295;  19  Pac.  51,S. 

Writ  for  possession  of  the  premises. 
Where  the  gravamen  of  an  action  is  to 
determine  conflicting  claims  to  real  prop- 
erty, brought  by  a  person  in  possession  at 
the  time  the  action  is  commenced,  but  who, 
during  pendency,  is  turned  out  of  posses- 
sion, a  judgment  in  favor  of  the  plaintiff 
may  provide  for  a  restitution  of  the  prem- 
ises; and  the  action  remains  an  equitable 
one.  Polack  v.  Gurnee,  66  Cal.  266;  5  Pac. 
229,  610;  Kitts  v.  Austin,  83  Cal.  167;  23 
Pac.  290.  And  where  the  answer  of  a  de- 
fendant out  of  possession  sets  up  an  ad- 
verse claim  of  title,  which  is  found  to  be 
superior  to  that  of  the  plaintiff,  the  court 
may  award  possession  to  such  defendant. 
Kitts  V.  Austin,  83  Cal.  167;  23  Pac.  290. 

Who  may  be  dispossessed  under  writ  of  posses- 
sion.   See  note  39  Am.  Dec.  311. 


§381 

and  all  persons  in  possession  must  be  joined  as 
defendants." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
295. 

Action  to  recover  adverse  claims  to  real 
property.  A  person  out  of  possession  may 
maintain  an  action  to  quiet  title.  People 
V.  Center,  6'6  Cal.  551;  5  Pac.  263;  6  Pac 
481;  Bryan  v.  Tormey,  3  Cal.  Unrep.  85 
21  Pac.  725;  Hyde  v.  Eedding,  74  Cal.  493 
16  Pac.  380;  Castro  v.  Barry,  79  Cal.  443 

21  Pac.  946;  Brusie  v.  Gates,  80  Cal.  462 

22  Pac.  284;  McGrath  v.  Wallace,  85  Cal 
622;  24  Pac.  793. 

Judgment.  The  findings  are  sufficient  if 
they  follow  the  language  of  the  pleadings, 
or  if  they  make  definite  reference  to  the 
pleadings.  Hihn  v.  Peck,  30  Cal.  280; 
Bryan  v.  Tormey,  3  Cal.  Unrep.  85;  21 
Pac.  725.  Where  it  is  adjudicated  that  the 
judgment  defendant  has  no  adverse  claim 
to  or  interest  in  the  property  in  contro- 
versy, the  subject  of  the  litigation  is  ex- 
hausted, and  if  the  plaintiff  is  out  of  pos- 
session, the  judgment  necessarily  entitles 
him  to  possession.  Landregan  v.  Peppin, 
94  Cal.  465;  29  Pac.  771;  Merritt  v.  Camp- 
bell, 47  Cal.  542.  Where  the  complaint 
alleges  that  the  plaintiff  was  the  owner 
and  in  possession,  and  the  findings  are  that 
he  is  the  owner,  but  that  the  defendant  is 

§  381.  Parties  holding  title  under  a  common  source,  when  may  join.  Anjr 
two  or  more  persons  claiming  any  estate  or  interest  in  lands  under  a  com- 
mon source  of  title,  whether  holding  as  tenants  in  common,  joint  tenants, 
coparceners,  or  in  severalty,  may  unite  in  an  action  against  any  person  claim- 
ing an  adverse  estate  or  interest  therein,  for  the  purpose  of  determining  such 
adverse  claim,  or  of  establishing  such  common  source  of  title,  or  of  declaring 
the  same  to  be  held  in  trust,  or  of  removing  a  cloud  upon  the  same. 

64  Cal.  134;  49  Am.  Kep.  686;  27  Pac.  863. 
It  is  otherwise  in  equity,  for  an  account- 
ing. Goodenow  v.  Ewer,  16  Cal.  461;  76- 
Am.  Dec.  540;  Abel  v.  Love,  17  Cal.  233. 
The  principle  enunciated  in  Pico  v.  Colum- 
bet,  supra,  has  no  application  to  the  case 
of  money  received  by  one  tenant  in  com- 
mon from  sales  of  water,  or  profits  derived 
from  the  operation  of  a  ditch  or  mine. 
Abel  V.  Love,  17  Cal.  233.  Where  an  es- 
tate is  sold  in  lots,  to  different  persons,, 
the  purchasers  cannot  unite  in  an  action 
for  specific  performance:  each  purchaser's 
case  being  distinct,  and  depending  upon 
its  own  i^eculiar  circumstances,  there  must 
be  distinct  and  separate  actions.  Owen  v. 
Frink,  24  Cal.  171.  One  of  two  tenants 
in  common  of  personal  property  can  main- 
tain replevin  against  the  other,  where 
there  is  an  agreement  that  on  a  sale  of 
the  property  the  proceeds  shall  be  equally 
divided.  Hewlett  v.  Owens,  50  Cal.  474. 
Persons  having  a  common  interest  in  the 
subject  of  an  action  to  redeem,  and  in  ob- 
taining the  general  relief  demanded,  may 
join  as  plaintiffs  (Wadleigh  v.  Phelps,  149 
Cal.  627;  87  Pac.  93)^  as  also  may  persons.  • 


Co-tenants  may  sever.     See  post,  §  384. 
Ejectment.     See  post,  §  738,  and  ante,  §  379. 
Quieting  title.     See  post,  §  738. 
Joint  tenants.    See  post,  §  384. 

Legislation  §  381.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1867-68,  p.  158),  and  then 
read:  "Persons  .claiming  an  interest  in  lands 
under  a  common  source  of  title  may  unite  as 
plaintiffs  in  an  action  against  any  person  claim- 
ing an  adverse  interest  therein,  for  the  purpose 
of  d'-terraining  such  adverse  claim,  or  of  estab- 
lishing such  common  source  of  title,  or  of  de- 
claring the  same  to  be  held  in  trust,  or  for 
removing   a   cloud    thereon." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
295. 

Joinder  of  parties  holding  title  under 
common  source.  The  general  rule  is,  that 
unconnected  parties  may  join  in  bringing 
a  bill  in  equity,  where  there  is  one  con- 
nected interest  'among  them  all,  centering 
in  the  point  in  issue  in  the  case.  Owen  v. 
Frink,  24  Cal.  171.  An  action  to  recover 
rents  and  profits  could  not  be  maintained 
at  law  Vjy  one  tenant  in  common  against 
another,  before  the  adoption  of  the  code, 
and  under  the  common-law  rule.  Pico  v. 
Columbot,  12  Cal.  414;  73  Am.  Dec.  550; 
Howard  v.  Throckmorton,  59  Cal.  79;  Mc- 
Cord  V.   Oakland  Quicksilver  Mining   Co., 


245 


JOINDER  OF  PARTIES — ONE  OR  MORE  MAY  SUE  OF  DEFEND. 


§382 


claiming  as  devisees  under  the  same  will, 
and  seeking  to  remove  from  tlieir  title  the 
cloud  of  a  fraudulent  deed  that  affects 
the  whole  land,  (iillespie  v.  Gouly,  152 
Cal.  6i'S;  93  Pac.  85(5.  Tenants  in  common 
of  an  irrigation-ditch  may  join  in  an  ac- 
tion for  an  injunction  to  i)revent  the  stop- 
page of  the  How  of  water  in  such  ditch, 
notwithstanding  their  several  ownerships 
of  lands,  and  of  water  to  irrigate  the  same 
I'rom  said  ditch.  Smith  v.  Stearns  Rancho 
•Co.,  129  Cal.  58;  61  Pac.  662;  i^os  Robles 
Water  Co.  v.  Stoneman,  146  C-'al.  203;  79 
Pac.  880.  The  joinder  of  tenants  in  com- 
mon in  real  actions  was  not  permissible, 
l;efore  the  code  (De  .lohnson  v.  Sepulbeda, 
5  Cal.  149;  Throckmorton  v.  Burr,  5  Cal. 
400;  Welch  v.  Sullivan,  8  Cal.  165);  but 
for  injuries  to  their  common  property,  as 
trespass  quare  clausum  fregit,  nuisance, 
and  the  like,  all  were  required  to  join.  De 
Johnson  v.  Sepulbeda,  5  Cal.  149.  A  tenant 
in  common  may  recover  an  entire  tract 
against  all  persons  in  possession,  except 
tis  co-tenants  (Stark  v.  Barrett,  15  Cal. 
361;  Touchard  v.  Crow,  20  Cal.  150;  81 
Am.  Dec.  108;  Touchard  v.  Keyes,  21  Cal. 
202;  Mahoney  v.  Van  Winkle,  21  Cal.  552; 
Carpentier  v.  Mendenhall,  28  Cal.  484;  87 
Am.  Dec.  135);  and  he  may  m.aintain  an 
action  for  the  recovery  of  land,  without 
joining  his  co-tenants  (Morenhaut  v.  Wil- 
son, 52  Cal.  263);  and,  where  ousted  by  a 
co-tenant,  he  may  maintain  ejectment,  un- 
less such  co-tenant  is  acting  as  his  bailiff, 
by  agreement,  when  an  action  for  an  ac- 
counting lies.  Pico  V.  Columbet,  12  Cal. 
414;  73  Am.  Dec.  550;  Carpentier  v.  Web- 
ster, 27  Cal.  524;  Carpentier  v.  Mendenhall, 
28  Cal.  484;  87  Am.  Dec.  135;  Carpentier 
V.  Gardiner,  29  Cal.  160;  Carpentier  v. 
Mitchell,  29  Cal.  330.  Damages  may  be 
recovered  for  ouster  by  a  co-tenant,  the 
same  as  for  ouster  by  a  stranger;  but  the 
only  damages  the  plaintiff  is  entitled  to 
recover  are  such  as  grow  out  of  and  are 
incident  to  the  ouster  upon  which  the  re- 
covery rests.  Carpentier  v.  Mitchell,  29 
■Cal.  330.  Where  there  is  an  ouster  by  a 
stranger,  who  afterwards  purchases  the 
interest  of  the  co-tenant,  and  becomes  a 
tenant  in  common  in  possession,  his  pos- 
session then  loses  its  hostile  character,  and 
damages  are  limited  to  those  of  the  period 
from  the  date  of  the  ouster  to  the  date  on 
which  he  became  the  tenant  in  common. 
Carpentier  v.  Mendenhall,  28  Cal.  484;  87 

§  382.  Parties  in  interest,  when  to  be  joined.  When  one  or  more  may  sue 
or  defend  for  the  whole.  Of  the  parties  to  the  action,  those  who  are  unitod 
in  interest  must  be  joined  as  plaintiffs  or  defendants;  but  if  the  consent  of 
any  one  who  should  have  been  joined  as  plaintiff  cannot  be  obtained,  he  may 
be  made  a  defendant,  the  reason  thereof  being  stated  in  the  complaint;  and 
when  the  question  is  one  of  a  common  or  general  interest,  of  many  persons, 
or  when  the  parties  are  numerous,  and  it  is  impracticable  to  bring  them  all 
before  the  court,  one  or  more  may  sue  or  defend  for  the  benefit  of  all. 


Am.  Dec.  135.  In  an  action  to  quiet  title, 
the  comi)laint  should  set  forth  tliat  the 
]>laintift"s  deraign  their  title  from  the  same 
source,  and  this  allegation  must  be  proved, 
and  be  found  by  the  court,  where  that  fact 
is  in  issue;  but  where  there  is  no  plea 
of  misjoinder  of  plaintiffs,  the  failure  of 
the  plaintiffs  so  to  plead  and  of  the  court 
so  to  find  is  immaterial.  Dewey  v.  Par- 
cells,  137  Cal.  305;  70  Pac.  174.  The  ad- 
ministrator of  a  deceased  co-tenant's  estate 
may  be  joined  as  plaintiff  with  the  surviv- 
ing co-tenants,  in  all  cases  in  which  the 
deceased  co-tenant  could  have  been  joined, 
until  the  administration  of  the  estate  rep- 
resented is  closed,  or  the  property  dis- 
tributed under  decree  of  the  probate  court. 
Meeks  v.  Hahu,  20  Cal.  620;  Touchard  v. 
Keyes,  21  Cal.  202;  Goller  v.  Fett,  30  Cal. 
481;  Reynolds  v.  Hosmer,  45  Cal.  616. 
Joint  tenants  were  formerly  required  to 
join,  where  the  land  was  held  jointly. 
Dewey  v.  Lambier,  7  Cal.  347;  Cohas  v. 
Raisin,  3  Cal.  443.  Parties  making  sepa- 
rate instruments  to  secure  the  same  debt 
may  join  as  plaintiffs  in  an  action  to  re- 
deem (Wadleigh  v.  Phelps,  149  Cal.  627; 
87  Pac.  93),  and  devisees  under  a  will  may 
join  in  an  action  to  remove  a  cloud  affect- 
ing the  lands  of  both.  Gillespie  v.  Gouly, 
152  Cal.  643;  93  Pac.  856. 

CODE  COMMISSIONEES'  NOTE.  Stats.  18C7- 
68,   p.   158. 

1.  Actipns  respecting  common  property.  Ac- 
tions for  the  diversion  of  the  waters  of  ditches 
are  in  the  nature  of  actions  for  the  abatement  of 
tiuisance,  and  may  be  maintained  by  tenants  in 
common  in  a  joint  action.  De  Johnson  v.  Sepul- 
beda, 5  Cal.  151;  Parke  v.  Kilham,  8  Cal.  79; 
68  Am.  Dec.  310.  Tenants  in  common  in  a  mine 
may  sue  jointly  to  recover  possession  of  all  of 
their  several  undivided  interests.  Goller  v.  Fett, 
30  Cal.  481.  And  the  executor  of  a  tenant  in 
common  can  be  united  with  the  surviving  co-ten- 
ants. Touchard  v.  Keyes,  21  Cal.  202.  A  tenant 
in  common,  employed  as  agent,  may  sue  his  co- 
tenant  for  the  services  rendered  in  resoect  to  the 
land.  Thompson  v.  Salmon,  18  Cal.  632.  One  of 
several  tenants  in  common  has  a  right  to  sue 
alone  for  his  moiety.  Covillaud  v.  Tanner,  7 
Cal.  38. 

2.  Action  of  ejectment,  where  there  are  sev- 
eral co-tenants.  In  this  state,  two  or  more  of 
several  co-tenants  cannot  be  joined  as  parties  in 
an  action  of  ejectment.  The  rule  which  deter- 
mines whether  tenants  in  common  should  sue 
jointly  or  severally  depends  upon  the  nature  of 
their  interest  in  the  matter  or  thing  which  is  in 
controversy.  For  injuries  to  their  common  prop- 
erty, as  trespass  quare  clausum  fregit,  or  nui- 
sance, etc.,  they  should  all  be  joined;  but  they 
must  sue  severally  in  real  actions,  geTierally.  as 
they  all  have  separate  titles.  See  Coke  Lit., 
p.  197;  De  Johnson  v.  Sepulbeda,  5  Cal.  151. 


§382 


PARTIES  TO   CIVIL   ACTIONS. 


246; 


Joinder,  misjoinder,   non-joinder.     Post,   §  430. 
Executors,     etc.,     not    qualified,     need    not    be 
Joined.    Post,  §  1587. 

Legislation  §  382.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  14  (New  York  Code, 
§  119),  which  had  the  word  "shall"  instead  of 
"must"   before   "be  joined." 

Joinder    of   parties   united   in   interest. 

All  parties  in  interest  must  be  joined, 
either  as  plaintiffs  or  as  defendants  (Wil- 
liams V.  Southern  Pacific  R.  E.  Co.,  110 
Cal.  457;  42  Pac.  974;  Birch  v.  Cooper,  136 
Cal.  636;  69  Pac.  420);  and  this  rule  is 
general,  and  applies  to  undertakings,  obli- 
gations, and  promises  of  all  possible  de- 
scriptions. Moreing  v.  Weber,  3  Cal.  App. 
14;  84  Pac.  220.  The  rule  requiring  all 
parties  in  interest  to  be  before  the  court 
is  somewhat  one  of  convenience,  and  will 
not  be  rigidly  enforced,  where  its  obser- 
vance would  be  attended  with  great  in- 
convenience, and  answer  no  substantially 
beneficial  purpose,  but  will  be  modified  or 
partially  dispensed  with,  in  the  discretion 
of  the  court,  as  justice  and  the  exigeucies 
of  the  case  may  require.  Wilson  v.  Castro, 
31  Cal.  420.  When  an  objection  is  not 
taken  either  by  demurrer  or  answer,  defect 
of  parties  is  deemed  waived.  Dunn  v. 
Tozer,  10  Cal.  167;  Wendt  v.  Ross,  33  Cal. 
650;  Rutenberg  v.  Main,  47  Cal.  213; 
Trenor  v.  Central  Pacific  R.  R.  Co.,  50  Cal. 
222;  Foley  v.  Bullard,  99  Cal.  516;  33  Pac. 
1081.  Parties  plaintiff  are  all  who  are  in- 
terested as  plaintiffs  in  the  subject-matter 
of  the  action.  Whitney  v.  Stark,  8  Cal. 
514;  68  Am.  Dec.  360; "^People  v.  Morrill, 
26  Cal.  336;  Salmon  v.  Rathjens,  152  Cal. 
290;  92  Pac.  733. 

Party  refusing  to  join  may  be  made  de- 
fendant. Where  antagonism  of  interests 
exists,  a  person  who  is  a  necessary  party 
plaintiff,  but  who  cannot  be  joined  because 
of  such  antagonistic  interests,  may  be  made 
a  party  defendant.  Bvrue  v.  Byrne,  94 
Cal.  576;  29  Pac.  1115*;  30  Pac.  196.  A 
partner,  interested,  but  who  refuses  to  join 
as  plaintiff,  may  be  made  a  party  defend- 
ant, the  reason  therefor  being  stated  in 
the  complaint  (Nightingale  v.  Scannell,  6 
Cal.  506;  65  Am.  Dec.  525;  O'Connor  v. 
Irvine,  74  Cal.  435;  16  Pac.  236;  Cuyamaca 
Granite  Co.  v.  Pacific  Paving  Co.,  95  Cal. 
252;  30  Pac.  525);  and  if  the  consent  of 
an  heir,  who  should  be  joined,  cannot  be 
obtained,  he  may  be  made  a  defendant. 
Salmon  v.  Rathjens,  152  Cal.  290;  92  Pac. 
733. 

Effect  of  joinder,  as  defendant,  of  one 
refusing  to  become  plaintiff.  See  note  post, 
§  3!i.:. 

Joinder  where  question  is  of  common  in- 
terest and  parties  are  numerous.  A  party, 
who  seeks  to  avail  himself  of  the  pro- 
visions of  this  section,  must  allege  facts 
which  bring  his  case  within  the  provisions: 
he  must  show  that  the  question  is  one  of 
common  or  general  interest,  of  many  per- 


sons, or  that  parties  are  numerous,  and 
that  it  is  impracticable  to  bring  them  all. 
before  the  court.  Carey  v.  Brown,  58  Cal- 
180.  In  an  action  upon  the  joint  indebted- 
ness of  two  partners,  the  complaint  should 
be  against  both,  as  both  are  united  in  in- 
terest. Baker  &  Hamilton  v.  Lambert,  5- 
Cal.  App.  708;  91  Pac.  340.  If  an  obliga- 
tion is  joint,  and  not  joint  and  several,  the 
joint  obligors  must  all  be  made  parties. 
Moreing  v.  Weber,  3  Cal.  App.  14;  84  Pac. 
220.  The  second  pledgee  of  a  note  and 
mortgage,  though  not  the  holder  thereof, 
is  entitled  to  foreclose  the  same,  where  the 
first  pledgee,  who  is  the  holder,  is  made  a 
party  to  the  action.  Patten  v.  Pepper- 
Hotel  Co.,  153  Cal.  460;  96  Pac.  296.  This- 
section  applies  to  an  action  for  partition, 
brought  for  the  benefit  of  all  persons  in- 
terested in  the  estate.  Adams  v.  Hopkins,. 
69  Pac.  228.  It  permits  the  joinder,  in 
actions  of  condemnation,  of  all  defendants 
whose  lands  are  affected  by  the  action. 
Sacramento  County  v.  Glann,  14  Cal.  App. 
780;  113  Pac.  360.  This  section,  and  §  383,. 
post,  authorize  the  joinder  of  a  wife  with 
her  husband,  in  an  action  against  him 
to  recover  for  necessaries  contracted  for 
solely  by  him.  Evans  v.  Noonan,  20  Cal. 
App.  288;  128  Pac.  794.  A  complaint,  in 
which  there  is  united  with  some  defend- 
ants another,  against  whom  no  liability  is 
alleged  or  recovery  sought,  is  not  neces- 
sarily defective.  Asevado  v.  Orr,  100  Cal.. 
293;  34  Pac.  777.  This  section  is  a  re-en- 
actment of  §  14  of  the  Practice  Act,  which- 
was  construed  as  intended  to  apply  to  suits, 
in  equity  and  not  to  actions  at  law.  An- 
drews V.  Mokelumne  Hill  Co.,  7  Cal.  330.. 
In  equity  proceedings,  the  rule  is  relaxed,, 
requiring  all  persons  materially  interested 
to  be  before  the  court;  it  is  always  dis- 
pensed with,  where  it  is  inconvenient  or  im- 
practicable to  get  them  before  the  court,  as- 
in  the  case  of  joint  associations  composed 
of  numerous  individuals.  Von  Schmidt  v. 
Huntington,  1  Cal.  55;  Gorman  v.  Russell,. 
14  Cal.  531.  All  parties  to  joint  contracts 
must  be  made  parties  defendant.  Harrison 
v.  McCormiek,  69  Cal.  616;  11  Pac.  456; 
Farmers'  Exchange  Bank  v.  Morse,  129  Cal. 
239;  61  Pac.  1088.  Where  all  parties  to  a 
contract  are  not  made  parties,  the  plain- 
tiff is  not  entitled  to  recover,  because  the 
allegations  and  the  proof  will  not  corre- 
spond (Cotes  v.  Campbell,  3  Cal.  191;  Mor- 
rison V.  Bradley  etc.  Corporation,  5  Cal.. 
503;  Farmer  v.  Cram,  7  Cal.  135;  Harrison 
V.  McCormiek,  69  Cal.  616;  11  Pac.  456); 
and  several  persons,  contracting  together 
with  the  same  party  for  one  and  the  same 
act,  are  regarded  as  jointly,  and  not  in- 
dividually or  separately,  liable,  in  the  ab- 
sence of  any  words  to  show  that  a  distinct 
as  well  as  an  entire  liability  was  intended 
to  be  fastened  upon  the  promisors.  Har- 
rison v.  McCormiek,  69  Cal.  616;  11  Pac^ 
456.     In  an  action  to  enforce  a  joint  note^ 


247 


JOINDER — PARTIES  NUMEROUS  AND  INTEREST  COMMON. 


§382 


upon  which  there  is  no  several  liability,  all 
the  joint  makers  must  be  united.  Farmers' 
Exchange  Bank  v.  Morse,  129  Cal.  239;  61 
Pac.  1088.  In  an  action  for  an  injunction, 
the  joinder  of  all  tortfeasors  as  defend- 
ants is  permissible.  Miller  v.  Highland 
Ditch  Co.,  87  Cal.  430;  22  Am.  St.  Kep.  254; 
25  Pac.  550.  A  stockholder  may  sue  in  be- 
half of  himself  and  other  stockholders,  for 
a  misappropriation  of  the  funds  of  the  cor- 
jioration  (Neall  v.  Hill,  16  Cal.  145;  76 
Am.  Dec.  508;  Wickersham  v.  Crittenden, 
93  Cal.  17;  28  Pac.  788);  and  all  who  par- 
ticipate in  such  fraudulent  acts  are  prop- 
erly joined  as  defendants  (Andrews  v. 
Pratt,  44  Cal.  309);  for,  each  of  them  be- 
ing alleged  to  have  been  in  some  way  con- 
nected with  the  transaction,  complete  jus- 
tice cannot  be  done  in  their  absence;  and 
it  is  not  necessary  that  the  plaintiff  join 
with  him  other  stockholders,  or  make  them 
defendants,  as  he  has  a  right  to  bring  the 
action  in  his  own  behalf  and  for  his  indi- 
vidual account,  as  well  as  in  behalf  of 
other  stockholders.  Wickersham  v.  Crit- 
tenden, 93  Cal.  17;  28  Pac.  788.  The  cor- 
poration is  not  a  necessary  party  defend- 
ant, although  the  suit  by  the  plaintiff  is, 
in  reality,  in  behalf  of  the  corporation. 
Beach  v.  Cooper,  72  Cal.  99;  13  Pac.  161; 
Neall  V.  Hill,  16  Cal.  145;  76  Am.  Dec.  508. 
This  section  (§14  of  the  Practice  Act) 
does  not  apply  to  an  action  brought  by  one 
for  himself  and  in  behalf  of  others,  to  re- 
move a  cloud  from  a  title,  and  for  an  in- 
junction, where  the  right  sought  to  be  en- 
forced is  not  general  and  common  to  all. 
Gibbons  v.  Peralta,  21  Cal.  629.  Where  a 
creditor  of  one  class  sues  for  the  benefit  of 
all  creditors  similarly  situated,  the  cred- 
itors of  another  class  cannot  claim  the 
benefit  of  the  action;  and  thus,  where  a 
judgment  creditor  sues,  and  provision  is 
inserted  in  the  judgment  for  the  relief  of 
other  judgment  creditors,  it  will  include 
only  such  as  were  judgment  creditors  at 
the  time  the  action  was  commenced,  and 
will  not  include  such  as  were  creditors  at 
large,  without  judgment  at  that  time,  who 
became  judgment  creditors  after  the  entry 
of  such  judgment.  Baines  v.  West  Coast 
Lumber  Co.,  104  Cal.  1;  37  Pac.  767;  Von 
Schmidt  v.  Huntington,  1  Cal.  55.  A 
creditor  may  sue  the  stockholders  of  a  cor- 
poration on  their  liability  as  stockholders, 
for  the  benefit  of  all  the  creditors.  Baines 
V.  Babcock,  95  Cal.  581;  29  Am.  St.  Rep. 
158;  27  Pac.  674;  30  Pac.  776.  In  an 
action  to  compel  a  reconveyance  of  real 
property,  alleged  to  have  been  secured  by 
conspiracy  and  fraud,  all  persons  who  have 
participated  in  the  alleged  fraud,  and  all 
persons  claiming  an  interest  in  the  prop- 
erty through  or  by  means  of  the  alleged 
fraudulent  transactions,  may  be  joined  as 
parties  defendant.  Raynor  v.  Mintzer,  67 
Cal.  159;  7  Pac.  431.  A  suit  by  one  per- 
son for  the  partition  of  real  estate,  for  the 


benefit  of  all  having  a  community  of  inter- 
est in  the  proi)erty,  has  the  effect  to  stop 
the  running  of  the  statute  of  limitations 
as  to  all.  Adams  v.  Hopkins,  144  Cal.  19; 
77  Pac.  712.  Where  a  partner  sues  alone, 
and  no  objection  is  made,  either  by  de- 
murrer or  answer,  he  may  recover  the 
whole  amount  due  the  partnership  (Wil- 
liams v.  Southern  Pacific  Co.,  110  Cal.  457; 
42  Pac.  974);  the  reason  for  this  rule  be- 
ing, that  the  interest  of  the  partner  ex- 
tends to  the  entire  demand,  and  payment 
to  one  partner  discharges  the  debtor's  lia- 
bility to  the  firm,  and  the  recovery  by  one 
partner  has  the  same  effect.  Williams  v. 
Southern  Pacific  Co.,  110  Cal.  457;  42  Pac. 
974;  Andrews  v.  Mokelumne  Hill  Co.,  7 
Cal.  330;  McCord  v.  Seale,  56  Cal.  262; 
Webb  V.  Trescony,  76  Cal.  621;  18  Pac.  796; 
Weinreich  v.  Johnston,  78  Cal.  254;  20  Pac. 
556;  Baxter  v.  Hart,  104  Cal.  344;  37  Pac. 
941.  In  a  suit  by  one  partner,  making  the 
other  defendant  because  he  refuses  to  join 
in  the  action,  the  recovery  must  be  entire 
for  the  whole  injury;  the  law  will  not 
tolerate  the  division  of  a  joint  right  of 
action.  Nightingale  v.  Scannell,  6  Cal. 
506;  65  Am.  Dec.  525.  A  member  of  a  re- 
ligious corporation  may  prosecute  an  action 
for  the  benefit  of  himself  and  all  the  other 
members  of  the  association,  to  prevent  a 
wrongful  exchange  of  creed  or  denomina- 
tion, or  the  diversion  of  the  property. 
Baker  v.  Ducker,  79  Cal.  365;  21  Pac.  764. 
One  member  of  a  voluntary  association 
may  sue  for  all  the  members.  Gieske  v. 
Anderson,  77  Cal.  247;  19  Pac.  421;  Baker 
V.  Ducker,  79  Cal.  365;  21  Pac.  764;  Flor- 
ence V.  Helms,  136  Cal.  613;  69  Pac.  429. 
A  member  of  a  voluntary  association, 
elected  the  treasurer  thereof,  may  main- 
tain a  suit  in  behalf  of  himself  and  other 
members  of  the  association,  except  the 
former  treasurer  thereof,  to  compel  him  to 
pay  over  the  funds  in  his  hands  belonging 
to  the  association,  which  properly  belong 
in  the  custody  of  the  treasurer,  and  which 
the  former  treasurer,  on  demand,  refused 
to  pay  over.  Gieske  v.  Anderson,  77  Cal. 
247;  19  Pac.  421.  An  action  may  be  main- 
tained under  this  section,  where  the  plain- 
tiffs allege  that  they  are  members  of  an 
association,  and  that  the  action  is  prose- 
cuted in  behalf  of  the  association  and  all 
the  members  thereof.  Florence  v.  Helms, 
136  Cal.  613;  69  Pac.  429. 

CODE  COMMISSIONERS'  NOTE.  1.  Joint  as- 
sociations composed  of  many  individuals.  In 
cases  of  joint  associations  which  consist  of  a 
great  many  individuals,  and  when  it  would  be 
very  inconvenient  or  almost  impossible  to  join 
them,  one  or  more  may  sue  or  defend  for  all.  See 
Von  Schmidt  v.  Huntington,  1  Cal.  55 ;  Gorman 
V.  Russell,  14  Cal.  531. 

2.  Action  by  stockholder  against  corporation 
and  certain  trustees  for  negligence  on  part  of 
trustees.  An  action  was  brought  to  compel  an 
account  and  obtain  a  settlement  of  the  affairs  of 
a  corporation.  Tlie  plaintiff  was  a  stockholder, 
and  the  corT>oration  and  four  of  the  trustees  were 
made  defendants.  It  was  alleged  that  these  trus- 
tees were  the  owners  of  stock  sufiScient  to  enable 


§383 


PARTIES  TO  CIVIL  ACTIONS. 


248 


them  to  control  the  business  of  the  company,  and 
various  acts  of  fraud  and  mismanagement  were 
charged  against  them  in  the  complaint.  It  was  de- 
cided that  a  stockholder  could  maintain  an  action 
in  equity  for  an  account  (Angell  and  Ames  on  Cor- 
porations. §  312:  Robinson  v.  Smith,  3  Paige  Ch. 
222:  24  Am.  Dec.  212):  and  that  where  no  ob- 
jection was  interposed,  that  all  the  stockholders 
were  not  made  parties,  the  trustees  and  corpora- 
tion could  be  sued  alone,  and  made  the  only  par- 
ties. The  trustees  will  be  compelled  to  make 
good  any  loss  occasioned  by  their  negligence  or 
improper  conduct.  See  Neall  v.  Hill,  16  Cal.  151; 
76  Am.  Dec.  508. 

3.  Decree  in  action  brought  by  one  for  himself 
and  on  behalf  of  others.  Where  an  action  is 
brought  by  one  of  several  persons,  claiming  title 
from  a  common  source,  in  his  own  behalf,  and  in 
behalf  of  all  others  interested  in  the  same  man- 
ner as  himself,  to  set  aside  a  deed  executed  to 
others  by  the  same  grantor,  under  whom  plaintiff 
claims,  on  the  ground  of  fraud,  the  parties  named 
in  the  complaint,  for  whose  benefit  the  qotion  is 
brought,  are  entitled  to  the  benefit  of  the  decree 


declaring  the  deed  fraudulent.  Hurlbutt  v. 
Butenop,   27  Cal.  .50. 

4.  Partner  suin?  for  injury  to  partnership 
property     and    making    copartner    a    defendant. 

When  one  partner  siit's  for  an  injury  to  the  part- 
nership property,  and  makes  his  copartner  a  de- 
fendant for  want  of  his  consent  to  join  as  plain- 
tiff, the  recovery  must  be  entire  for  the  whole 
injury.  The  law  will  not  tolerate  a  division  of  a 
joint  right  of  action  into  several  actions.  The 
whole  cause  of  action  must  be  determined  in  one, 
and  thus  avoid  a  multiplicity  of  suits.  In  such 
a  ease,  the  partner  recovering  is  liable  to  account 
to  his  copartner  defendant,  and  the  latter  is  in- 
terested immediately  in  the  event  of  the  suit. 
Nightingale  v.  Scannell,  6  Cal.  509:  65  Am.  Dec. 
525.  But  this  case  did  not  decide  that  such  a 
nonjoinder  of  the  niaintiffs  would  be  nermitted 
under  the  code.      The  question  was  not  raised.     Id. 

5.  Section  applies  only  to  suits  in  equity.  It 
was  held  that  this  section  was  intended  to  apply 
to  suits  in  equity,  and  not  to  actions  at  law. 
Andrews   v.   Mokelumne  Hill   Co.,  7  Cal.  333. 


§  383.  Plaintiff  may  sue  in  one  action  the  different  parties  to  commercial 
paper  or  insurance  policies.  Persons  severally  liable  upon  the  same  obliga- 
tion or  instrument,  including  the  parties  to  bills  of  exchange  and  promissory 
notes,  and  sureties  on  the  same  or  separate  instruments,  may  all  or  any  of 
them  be  included  in  the  same  action,  at  the  option  of  the  plaintiff;  and  all 
or  any  of  them  join  as  plaintiffs  in  the  same  action,  concerning  or  affecting 
the  obligation  or  instrument  upon  which  they  are  severally  liable.  Where 
the  same  person  is  insured  by  tM^o  or  more  insurers  separately  in  respect  to 
the  same  subject  and  interest,  such  person,  or  the  payee  under  the  policies, 
or  the  assignee  of  the  cause  of  action,  or  other  successor  in  interest  of  such 
assured  or  payee,  may  join  all  or  any  of  such  insurers  in  a  single  action  for 
the  recovery  of  a  loss  under  the  several  policies,  and  in  case  of  judgment  a 
several  judgment  must  be  rendered  against  each  of  such  insurers  according 
as  his  liability  shall  appear. 

action  upon  the  contract;  and  this  rule 
applies  to  undertakings,  obligations,  and 
promises  of  all  possible  descriptions.  More- 
ing  V.  Weber,  3  Cal.  App.  14;  84  Pac.  220. 
This  section  is  in  the  exact  language  of 
§  15  of  the  Practice  Act,  which  latter  sec- 
tion was  said  to  be  in  derogation  of  the 
common  law,  which  required  that  one  or 
all,  and  not  an  intermediate  number,  should 
be  sued.  Stearns  v.  Aguirre,  6  Cal.  176; 
People  V.  Love,  25  Cal.  520.  This  section 
jiermits  all  or  any  of  the  persons  severally 
liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  ex- 
change and  promissory  notes,  to  be  joined 
as  defendants;  but  where  the  promise  is 
separate  and  distinct,  the  promisors  cannot 
be  joined.  Thomas  v.  Anderson,  58  Cal.  99. 
The  object  of  this  section  is  solely  the 
avoidance  of  a  multiplicity  of  actions. 
Loustalot  v.  Calkins,  120  Cal.  688;  53  Pac. 
258.  By  §  15  of  the  Practice  Act,  the  com- 
mon-law rule  that  one  or  all,  and  not  any 
intermediate  number,  may  be  sued,  was 
changed;  and,  under  that  section,  a  plain- 
tiff could,  at  his  election,  sue  one  or  more, 
or  all  of  the  persons  severally  liable  upon 
the  same  obligation  or  instrument.  People 
V.  Love,  25  Cal.  520.  The  joinder  of  all 
the    defendants   in   a   complaint   does   not 


Judgment  for  or  against  one  or  more  of  several 
parties.    See  post,  §§  414,   578,  579. 

Legislation  §  383.  1.  Enacted  March  11,  1873, 
in  the  e.xact  language  of  Practice  Act,  §  15  (New 
York  Code,  §  120),  and  then  read:  "Persons 
severally  liable  upon  the  same  obligation  or  in- 
strument, including  the  parties  to  bills  of  ex- 
change and  promissory  notes,  and  sureties  on 
the  same  or  separate  instruments,  may  all  or  any 
of  them  be  included  in  the  same  action,  at  the 
option  of  the  plaintiff." 

3.  Amended  by  Stats.  1897,  p.  19,  to  read: 
"Persons  severally  liable  upon  the  same  obliga- 
tion or  instrument,  including  the  parties  to  bills 
of  exchange  and  promissory  notes,  and  sureties 
on  the  same  or  separate  instruments,  may  all  or 
any  of  them  be  included  in  the  same  action,  at 
the  option  of  the  plaintiff;  and  all  or  any  of 
them  join  as  plaintiffs  in  the  same  action,  con- 
cerning or  affecting  the  obligation  or  instrument 
upon  which   they   are  severally  liable." 

3.    Amended  by  Stats.  1903,  p.  203. 

Parties  liable  upon  the  same  obligation. 

A  j>laintiff  may,  at  his  election,  sue  one  or 
more,  or  all,  of  the  persons  severally  liable 
upon  the  same  obligation  or  instrument 
(Stearns  v.  Aguirre,  6  Cal.  176;  People  v. 
Evans,  29  Cal.  429;  Hurlbutt  v.  N.  W. 
Spaulding  Saw  Co.,  93  Cal.  55;  28  Pac.  795; 
Kurtz  V.  Forquer,  94  Cal.  91;  29  Pac.  413; 
London  etc.  Bank  v.  Smith,  101  Cal.  415; 
35  Pac.  1027;  Kreling  v.  Kreling,  118  Cal. 
413;  50  Pac.  546;  Slater  v.  McAvov,  123 
Cal.  437;  56  Pac.  49);  but  where  the  lia- 
bility  is  joint,  all  must  be   united,  in  an 


249 


JOINDER — PARTIES  NUMEROUS  AND  INTEREST  COMMON. 


§382 


prevent  the  plaintiff  from  going  to  trial 
before  Boine  of  them  have  been  served. 
People  V.  Evans,  29  Ca).  429;  Reed  v.  Cal- 
derwood,  22  C'al.  463;  People  v.  Love,  25 
Cal.  520.  Where  a  sheriff  executed  two 
attachments  upon  the  same  property,  which 
was  claimed  by  a  third  person,  and  each 
of  the  attaching  creditors  e.xecutcd  to  the 
sheriff  an  indemnifying  bond,  the  liability 
of  the  attaching  creditors  is  several,  and 
not  joint,  and  each  bond  must  be  sued  on 
as  an  independent  obligation.  White  v. 
Fratt,  13  Cal.  521.  The  joinder  of  co-de- 
fendants is  at  the  option  of  the  plaintiff. 
People  V.  Love,  25  Cal.  520;  Powell  v. 
Powell,  48  Cal.  234;  Heppe  v.  Johnson,  73 
Cal.  265;  14  Pac.  833;  Kurtz  v.  Forquer, 
94  Cal.  91;  29  Pac.  413;  Sacramento  v. 
Dunlap,  14  Cal.  421;  People  v.  Hartley,  21 
Cal.  585;  82  Am.  Dec.  758. 

Joinder  of  sureties.  The  sureties  on  a 
several  obligation  may  be  sued  alone,  at 
the  election  of  the  plaintiff.  London  etc. 
Bank  v.  Smith,  101  Cal.  415;  35  Pac.  1027. 
The  joinder  of  an  indorser  and  the  maker 
of  a  promissory  note  is  permissible,  untler 
this  section  (Loustalot  v.  Calkins,  120  Cal. 
688;  53  Pac.  258;  Hubbard  v.  University 
Bank,  125  Cal.  684;  58  Pac.  297);  and  each 
one  who  writes  his  name  upon  the  note  is 
a  party  to  it;  and,  from  its  original  charac- 
ter, each  party  to  it  is  an  original  under- 
taker. Eiggs  v.  Waldo,  2  Cal.  485;  56  Am. 
Dec.  356.  From  the  earliest  judicial  his- 
tory of  this  state,  makers  and  indorsers 
of  negotiable  promissory  notes  have  been 
joined  as  parties  defendant,  and  no  ques- 
tion as  to  the  correctness  of  the  practice 
has  ever  been  suggested.  Loustalot  v. 
Calkins,  120  Cal.  688;  53  Pac.  258;  Pierce 
V.  Kennedy,  5  Cal.  138;  Ford  v.  Hendricks, 
34  Cal.  673;  Jones  v.  Goodwin,  39  Cal.  493; 
2  Am.  Rep.  473;  Fessenden  v.  Summers,  62 
Cal.  484;  Young  v.  Miller,  63  Cal.  302. 
The  distinction  at  common  law,  and  in 
most  of  the  states,  between  guarantor  and 
surety  has  been  done  away  with  by  our 
Civil  Code,  and  the  guarantor  has  been 
practically  reduced  to  the  footing  of  a 
surety,  and  has  less  protection  than  the 
indorser;  there  is  this  distinction  to  be 
observed,  however:  the  obligation  of  the 
surety  arises  out  of  the  instrument,  while 
that  of  the  guarantor  is  separate  and  apart 
from  it;  the  guarantor  becomes  liable  im- 
mediately upon  the  failure  of  his  principal 
to  perform  (except  in  case  of  guaranty  of 
collectibility),  but  this  liability  grows  out 
of  such  failure  to  perform,  and  not  out  of 
the  instrument;  the  surety  may  be  joined 
with  his  f)rincipal,  under  this  section,  but 
it  is  thought  the  guarantor  cannot;  it  is 
barely  possible,  but  not  probable,  that  a 
case  may  arise  where  the  guarantor's  lia- 
bility arises  out  of  the  instrument.  Car- 
man v.  Plass,  23  N.  Y.  286.  Where  an 
administrator  gives  two  bonds,  one  on  his 
qualification  as  administrator  and  the  other 


ui)on  a  sale  of  real  estate,  the  conditions 
and  the  sureties  on  each  bond  being  the 
same,  the  sureties  are  properly  joined  as 
co-defendants,  having  assumed  a  common 
burden.  Powell  v.  Powell,  48  Cal.  234; 
licppe  V.  .Johnson,  73  Cal.  265;  14  Pac.  833. 
The  sureties  on  a  bond  to  sell  real  estate, 
given  b}'  a  deceased  administrator,  the  es- 
tate being  unadministered,  are  proper  par- 
ties defendant  in  an  action  to  recover 
moneys  realized  from  the  sale  of  such  real 
estate  (Slater  v.  McAvoy,  123  Cal.  437;  56 
Pac.  49) ;  and  they  are  the  jiroper  parties 
to  make  the  settlement  (People  v.  Jenkins, 
17  Cal.  500;  Slater  v.  McAvoy,  123  Cal. 
437;  56  Pac.  49);  and  also  in  an  account- 
ing against  a  deceased  guardian.  Zurfluh 
V.  Smith,  135  Cal.  644;  67  Pac.  1089;  Rei- 
ther  V.  Murdoch,  135  Cal.  197;  67  Pac.  784. 

Joinder  of  insurers.  Where  two  insur- 
ance companies  insure  a  building  against 
loss,  both  uniting  in  the  policy  for  sepa- 
rate amounts,  and  the  loss  occurs  within 
the  policies,  the  two  companies  are  sev- 
erally liable  upon  the  same  obligation  or 
instrument,  and  may  be  joined  as  co-de- 
fendants, at  the  option  of  the  plaintiff. 
Bernero  v.  South  British  etc.  Ins.  Co.,  65 
Cal.  386;  4  Pac.  382;  Blasingame  v.  Home 
Ins.  Co.,  75  Cal.  633;  17  Pac.  925. 

What  judgment  must  be  rendered.  Where 
a  plaintiff  sues,  jointly,  two  or  more  de- 
fendants on  a  joint  and  several  contract 
or  obligation,  one  of  whom  defaults,  and 
judgment  is  taken  against  him  on  such  de- 
fault, this  releases  the  other  defendants. 
Stearns  v.  Aguirre,  6  Cal.  176. 

Joinder  of  husband  and  wife.  See  note 
ante,  §  382. 

CODE  COMMISSIONERS'  NOTE.  1.  Plaintiff 
may  elect  whicli  one  or  v/hat  number  of  many 
persons  severally  liable  he  will  sue.  This  sec- 
tion changes  the  common-law  rule,  that  one  or  all, 
and  not  any  intermediate  number,  may  be  sued. 
Under  this  section,  a  plaintiff  may,  at  his  elec- 
tion, sue  one  or  more,  or  all  the  persons  severally 
liable,  upon  the  same  obligation  or  instrument. 
People  V.  Love.  25  Cal.  526;  Stearns  v.  Aguirre, 
6  Cal.  183;  see  also  People  v.  Frisbie,  18  Cal. 
402;    Lewis   v.    Clarkin,   18   Cal.  399. 

2.  Judgment  may  be  for  or  against  one  of  sev- 
eral defendants,  and  otherwise  as  to  the  other 
defendants.  See  §§  578,  579,  post.  Lewis  v. 
Clarkin,  18  Cal.  399;  People  v.  Frisbie,  18  Cal. 
402. 

3.  Indorsers.  When  jointly,  and  not  severally, 
liable.  A  note  was  payable  to  A,  and,  previously 
to  its  delivery  to  the  payee,  was  indorsed  by  B 
and  C.  These  parties  were  accommodation  in- 
dorsers. .\.n  indorsement  was  made  by  two  per- 
sons, upon  an  agreement  with  each  other,  that 
they  would  each  become  surety  if  the  other 
would,  or  in  other  words,  that  they  would  be- 
come sureties  together.  It  wag  decided  that  the 
indorsers  were  guarantors  (see  facts),  and  were 
jointly,  and  not  severally,  liable  to  payee,  etc. 
Brady  v.  Reynolds,  13  Cal.  31. 

4.  There  must  be  express  words  to  create  a 
several  liability.  See  Chitty  on  Contracts,  n.  96 ; 
1  Chitty's  Pleading,  p.  41 ;  Brady  v.  Reynolds.  13 
Cal.  32. 

5.  Judgment  against  one  is  bar  to  action 
against  other  parties  on  a  joint  contract.  A 
judgment  against  one  on  a  joint  contract  of  sev- 
eral is  a  bar  to  an  action  asrainst  the  others. 
Smith  v.  Black,  9  Serg.  &  R.  (Pa.)  142;  11  Am. 
Dec.  686;  Ward  V.  Johnson,  13  Mass.  148.  When 
the    cause    of    action    is   joint,    and    not    joint    and 


§§  384,  385 


PARTIES  TO  CIVIL  ACTIONS. 


250 


several,  the  entire  cause  of  action  is  merged  in 
the  judgment.  See  also  Pierce  v.  Kearney,  5 
Hill  (N.  Y. ),  86;  Taylor  v.  Claypool,  5  Blackf. 
557;  Bradv  v.  Reynolds,  13  Cal.  33. 

6.  Administrator  not  joined  with  survivor  on 
several  contract.  In  cases  of  joint  and  several 
contracts,  an  administrator  cannot  be  joined  with 
the  survivor,  for  one  is  charged  de  bonis  testa- 
toris,  and  the  other  de  bonis  propriis.  Hum- 
phreys V.  Crane.   5  Cal.   173. 

7.  Judgment  in  suit  on  joint  and  several  bond. 
In  an  action  upon  a  joint  and  several  bond,  where 
all  the  persons  who  sign  it  are  made  defe;idants 
in  the  complaint,  the  plaintiff  may  go  to  trial,  if 
he  elects  so  to  do,  before  all  the  defendants  are 
served,  and  may  dismiss  as  to  some  of  the  de- 
fendants, and  take  judgment  against  the  others. 
People  v.  Evans,  29  Cal.  '429. 

8.  When  a  bond  is  joint,  and  not  several.  A 
bond  in  this  form:  Know  all  men,  That  we,  A, 
as  principal,  and  B,  C,  and  D,  as  sureties,  are 
bound  unto  the  people  in  the  several  sums  af- 
fi.xed  to  our  names,  viz.:  B,  in  the  sum  of  ten 
thousand  dollars;  C,  in  the  sum  of  five  thousand 
dollars;  D,  in  the  sum  of  three  thousand  dollars, 
etc.,    "for   the  which   payment    well   and   truly   to 

§  384.  Tenants  in  common,  etc.,  may  sever  in  bringing  or  defending  ac 
tions.  All  persons  holding  as  tenants  in  common,  joint  tenants,  or  copar- 
ceners, or  any  number  less  than  all,  may  jointly  or  severally  commence  or 
defend  any  civil  action  or  proceeding  for  the  enforcement  or  protection  of 
the  rights  of  such  party. 


be  made  we  severally  bind  ourselves,  our  heirs, 
etc.,  and  signed  and  sealed  by  the  obligors,  is 
held  to  be  an  instrument  embracing  several  dis- 
tinct obligations,  each  of  which  is  a  joint  obliga- 
tion of  the  principal  and  one  surety,  and  not 
joint  and  several.  People  v.  Hartley,  21  Cal.  585  ; 
82  Am.  Dec.  758. 

9.  Suit  on  separate  indemnifying  bonds  for  the 
same  attached  property.  .\  sheriff  seized  goods 
on  two  attachments,  for  different  plaintiffs.  The 
plaintiffs  in  the  attachment  suits  executed  to  the 
sheriff  separate  indemnifying  bonds.  It  was  de- 
cided that  there  is  no  joint  liability  between  the 
plaintiffs  to  the  sheriff.  Each  bond  must  be 
sued  on  as  an  independent  obligation.  White  v. 
Fratt,  13  Cal.  521. 

10.  Action  on  note  secured  by  mortgage.  The 
maker  executes  and  delivers  to  the  same  person 
a  promissory  note,  and  a  mortgage  to  secure  the 
same,  and  this  person  indorses  the  note  and  as- 
signs the  mortgage  to  a  third  person,  who  brings 
an  action  on  the  note  and  to  foreclose  the  mort- 
gage. It  was  held  that  the  indorser  and  maker 
of  the  note  were  properly  joined  as  defendants. 
Eastman  v.  Turman,  24  Cal.  379. 


Co-claimants,  united  as  plaintiffs.    Ante,  |  381. 

Legislation  §  384.      Enacted    March    11,    1873; 
based  on  Stats.   1867-68,   p.   62. 

Joinder  of  tenants  in  common.  Co-ten- 
ants may  sue  alone  or  jointly  touching 
matters  affecting  common  property  or  es- 
tate. Clark  V.  Huber,  20  Cal.  196;  Tou- 
chard  v.  Keyes,  21  Cal.  202;  Goller  v.  Fett, 
30  Cal.  481;  Reynolds  v.  Hosmer,  4,5  Cal. 
616;  Morenhaut  v.  Wilson,  .52  Cal.  263; 
Himes  v.  Johnson,  61  Cal.  259;  Moulton  v. 
McDermott,  80  Cal.  629;  22  Pac.  296;  Lee 
Chuck  V.  Quan  Wo  Chong  &  Co.,  91  Cal. 
593;  28  Pac.  45;  Kimball  v.  Tripp,  136  Cal. 
631;  69  Pac.  428;  Miller  v.  Kern  County, 
137  Cal.  516;  70  Pac.  549;  Harlow  v.  Stan- 
dard Improvement  Co.,  145  Cal.  477;  78  Pae. 
1045.  A  co-tenant  of  the  plaintiff  is  not 
a  necessary  party  in  an  action  for  the 
wrongful  diversion  of  water  from  a  ditch 
and  lands  owned  by  the  plaintiff  and  others. 
Himes  v.  Johnson,  61  Cal.  259.  Co-dis- 
tributees are  tenants  in  common;  and  one 
tenant,  suing  alone,  may  recover  the  entire 
tract  of  land  from  an  intruder.  Moulton 
V.  McDermott,  80  Cal.  629;  22  Pac.  296. 
The  personal  representative  of  a  deceased 
co-tenant  may  join  with  the  surviving  co- 
tenants.  Tou'chard  v.  Keyes,  21  Cal.  202; 
Goller  V.  Fett,  30  Cal.  481;  Reynolds  v. 
Hosmer,  45   Cal.   616.     One  co-tenant   can- 


not recover  all  the  rents  and  profits,  even 
as  against  a  trespasser  (Clark  v.  Huber,  20 
Cal.  196;  Muller  v.  Boggs,  25  Cal.  175;  Lee 
Chuck  V.  Quan  Wo  Chong  &  Co.,  91  Cal. 
593;  28  Pac.  45);  but,  under  an  agreement 
apportioning  the  rents  and  profits,  whereby 
one  co-tenant  is  to  receive  them  every 
alternate  six  months,  perhaps  a  co-tenant, 
in  a  proper  action,  would  be  entitled  to 
recover  all  the  rents  and  profits  due  for 
periods  allotted  to  him.  Lee  Chuck  v. 
Quan  Wo  Chong  &  Co.,  91  Cal.  593;  28  Pac. 
45.  An  heir,  as  tenant  in  common,  may 
sue  alone,  under  this  section,  regarding  the 
subject-matter  affecting  the  common  es- 
tate. Kimball  v.  Tripp,  136  Cal.  631;  69 
Pac.  428.  A  husband  is  not  a  necessary 
party  in  an  action  by  his  wife  to  quiet 
title  to  her  separate  property,  upon  which 
a  homestead  has  been  declared  for  their 
joint  benefit.  Prey  v.  Stanley,  110  Cal. 
423;  42  Pac.  908.  Husband  and  wife  may 
sue  jointly  as  tenants  in  common,  in  an 
action  for  trespass.  Wagoner  v.  Silva,  139 
Cal.  559;  73  Pac.  433.  A  surviving  partner 
may  sue  alone  regarding  the  subject-matter 
of  the  firm's  property.  Miller  v.  Kern 
County,  137  Cal.  516;  70  Pac.  549. 

CODE  COMMISSIONERS'  NOTE.      Stats.  1867, 
p.  62. 


§  385.  Action,  when  not  to  abate  by  death,  marriage,  or  other  disability. 
Proceedings  in  such  case.  An  action  or  proceeding  does  not  abate  by  the 
death,  or  any  disability  of  a  party,  or  by  the  transfer  of  any  interest  therein, 
if  the  cause  of  action  survive  or  continue.  In  case  of  the  death  or  any  dis- 
ability of  a  party,  the  court,  on  motion,  may  allow  the  action  or  proceeding 
to  be  continued  by  or  against  his  representative  or  successor  in  interest. 


251 


ACTION  DOES   NOT  ABATE  WHERE  CAUSE   OF   ACTION    SURVIVES. 


§385 


In  case  of  any  other  transfer  of  interest,  the  action  or  proceeding  may  be 
continued  in  the  name  of  the  orisjinal  party,  or  the  court  may  allow  the  per- 
son to  whom  the  transfer  is  made  to  be  substituted  in  the  action  or  proceed- 


ing. 

If  party  die,  Judgment  against  his  representa- 
tivfe  must  be  that  he  pay  in  due  course  of  ad- 
ministration.   I'ost,  §  1504. 

Necessity  for  claiming  against  estate  of  de- 
-ceased.     Post.  §§  1493,    1502. 

Death  after  verdict  or  decision,  and  before 
Judgment.    See  post,   §  669. 

Survival  of   actions.    See  post,  §§  1582   et   seq. 

Legislation  S  385.  1.  Enacted  March  11,  1873; 
basfd  on  Practice  Act,  §  16  (New  York  Code, 
§  16),  which  read:  "An  action  shall  not  abate 
by  the  death,  or  other  disability  of  a  party;  or 
by  the  tran.sfer  of  any  interest  therein,  if  the 
cause  of  action  survive  or  continue.  In  case  of 
the  death,  or  other  disability  of  a  party,  the 
court,  on  motion,  may  allow  the  action  to  be  con- 
tinued by  or  against  his  representative  or  suc- 
cessor in  interest.  In  case  of  any  other  transfer 
of  interest,  the  action  may  be  continued  in  the 
name  of  the  original  party;  or  the  court  may 
allow  the  person  to  whom  the  transfer  is  made, 
to  be  substituted  in  the  action."  When  enacted 
in  1872,  the  section  read  as  at  present,  e.xcept 
that  the  words  "death  or  any  disability"  then 
xead  "death,  marriage,  or  other  disability,"  in 
both   instances. 

3.  Amended  by  Code  Amdts.  1873-74-,  p. 
295. 

Action  does  not  abate,  where  the  cause 
of  action  survives.  This  section  is  per- 
missive, and  appeals  to  the  discretion  of 
the  court  (Fay  v.  Steubenrauclj?  138  Cal. 
656;  72  Pac.  156;  Emerson  v.  McWhirter, 
128  Cal.  268;  60  Pac.  774);  and  should  re- 
ceive a  liberal  construction,  with  a  view 
to  effect  its  object  and  promote  justice. 
Plummer  v.  Brown,  64  Cal.  429;  1  Pac. 
703;  Crescent  Canal  Co.  v.  Montgomery, 
124  Cal.  134;  56  Pac.  797.  If  this  section 
is  applicable  to  the  case  of  a  corporation, 
it  does  not  authorize  the  continuance  of 
the  action  against  the  corporation  itself, 
"but  allows  the  action  to  be  continued  only 
against  the  "representative  or  successor  in 
interest"  brought  in  on  motion.  Crossman 
v.  Vivienda  Water  Co.,  150  Cal.  575;  89 
Pac.  335.  It  applies  to  the  supreme  court, 
except  where  the  code  otherwise  provides, 
or  where  it  is  evidently  applicable  only  to 
the  trial  court.  Trumpler  v.  Trumpler,  123 
Cal.  248;  55  Pac.  1008;  People  v.  Mullan, 
■65  Cal.  396;  4  Pac.  348.  It  does  not  make 
■distinctions  dependent  upon  the  stages  of 
the  action  or  proceeding.  Ex  parte  Con- 
naway,  178  U.  S.  421;  44  L.  Ed.  1134;  20 
Sup.  Ct.  Rep.  951.  It  does  not  apply  in  a 
■contest  for  the  purchase  of  state  land, 
w^hich  has  been  referred  to  the  courts,  and 
where  the  applicant  dies  pending  the  ac- 
tion. Polk  V.  Sleeper,  158  Cal.  632;  112 
-Pac.  179.  In  case  a  corporation,  which  is 
.a  party,  is  dissolved,  the  action  may  be 
continued,  only  as  against  the  representa- 
■tive  or  successor  in  interest  brought  in  on 
motion;  the  remedy  is  against  the  di- 
Tcctors,  as  trustees,  and  the  stockholders. 
Grossman  v.  Vivienda  Water  Co.,  150  Cal. 
-575,  581;  89  Pac.  335.     The  substitution  of 


the  representative  of  a  deceased  person  as 
a  party,  pending  an  appeal,  should  be  fol- 
lowed by  a  like  substitution  in  the  trial 
court  in  order  properly  to  determine  the 
responsibility  for  the  costs  ui)on  appeal. 
Reay  v.  Heazelton,  128  Cal.  335;  60  Pac. 
977.  The  court  cannot  permit  a  person  to 
be  substituted  as  plaintiff,  in  place  of  the 
then  plaintiff,  on  the  ground  that  the  per- 
son substituted  was  the  real  party  in  in- 
terest at  the  commencement  of  the  action. 
Dubbers  v.  Goux,  51  Cal.  153.  The  right 
of  action  against  a  person  for  wrongful  im- 
prisonment ceases  upon  his  death.  Marker 
V.  Clark,  57  Cal.  245.  A  former  applica- 
tion for  a  writ  of  mandate  against  a  city 
treasurer  does  not  bar  an  action  against 
the  city.  Madary  v.  Fresno,  20  Cal.  App. 
91;  128  Pac.  340.  In  an  action  of  eject- 
ment, brought  by  a  lessee  for  the  benefit 
of  the  lessor,  the  court  may,  after  the  ex- 
piration of  the  lease,  allow  the  substitu- 
tion of  a  plaintiff  who  has  succeeded  to 
the  whole  title  (Cassin  v.  Nicholson,  154 
Cal.  497;  9S  Pac.  190);  and  in  an  action 
to  determine  an  adverse  claim  to  real  prop- 
erty, it  has  power  to  substitute  a  special  ad- 
ministrator for  the  general  administrator 
as  a  partv  defendant.  McNeil  v.  Morgan, 
157  Cal.  373;  108  Pac.  69.  A  transfer,  by 
the  defendant,  of  attached  real  estate, 
pending  the  principal  suit,  is  not  such  a 
transfer  as  entitles  the  transferee  to  be 
substituted  as  a  party  defendant.  Ander- 
son V.  Sehloesser,  153  Cal.  219;  94  Pac.  885. 
If  a  suit  on  assigned  claims,  commenced 
in  a  state  court,  is  transferred  to  a  Fed- 
eral court,  but  the  cause  of  action  is  trans- 
ferred to  the  plaintiff's  assignor,  the  action 
may  be  continued  either  in  the  name  of 
the  original  party  or  in  that  of  the  trans- 
feree. Davis  V.  Eawhide  Gold  Mining  Co., 
15  Cal.  App.  108;  113  Pac.  898.  An  action 
abates  upon  a  showing  of  the  institution 
and  pendency  of  a  prior  action  between 
the  same  parties  upon  the  same  subject- 
matter.  Fresno  Planing  Mill  Co.  v.  Man- 
ning, 20  Cal.  App.  766;  130  Pac.  196.  If 
a  husband  and  wife  were  properly  joined 
as  plaintiffs  in  the  first  instance,  a  per- 
sonal representative  for  the  husband  may 
be  substituted  upon  his  death,  pending  suit. 
Gomez  v.  Scanlan,  155  Cal.  528;  102  Pac. 
12.  If,  pending  an  action  to  foreclose  a 
mortgage  given  to  secure  a  note,  the  note 
and  mortgage  are  assigned,  and  are  subse- 
quently distributed  by  a  decree  of  distribu- 
tion in  the  estate  of  the  assignee,  the  dis- 
tributee, as  a  successor  in  interest,  may  be 
substituted  as  plaintiff  in  the  foreclosure 
suit.  Blinu  Lumber  Co.  v.  McArthur,  150 
Cal.  610;  89  Pac.  436.  Where,  pending  a 
suit    commenced    in    this    state,    against    a 


§385 


PARTIES  TO   CIVIL  ACTIONS. 


252 


non-resident  defendant,  the  property  in- 
Aolved  is  transferred  to  a  resident  of  this 
state,  the  death  of  the  original  defendant, 
subsequently  to  such  transfer,  does  not 
confer  upon  the  transferee  any  right  of 
substitution  as  representative  of  the  origi- 
nal defendant.  Anderson  v.  Schloesser,  153 
Cal.  219;  94  Pac.  885. 

Does  not  abate  by  death.  On  the  death 
of  a  party  in  this  state,  whatever  property 
he  has  vests  immediately,  by  operation  of 
law,  in  his  heirs,  subject  to  the  lien  of  the 
administrator  to  pay  the  debts  of  the  es- 
tate. Beckett  v.  Selover,  7  Cal.  215;  68 
Am.  Dec.  237;  Updegraff  v.  Trask,  IS  Cal. 
458;  Meeks  v.  Hahn,  20  Cal.  620.  When- 
ever, by  reason  of  the  death  of  a  defend- 
ant, the  case  becomes  such  that  execution 
cannot  be  legally  issued,  an  attachment 
must  of  necessity  cease,  whether  judgment 
has  been  procured  or  not,  in  an  action  in 
which  attachment  issued  and  was  levied. 
Myers  v.  Mott,  29  Cal.  359;  89  Am.  Dec. 
49;  afSrmed  in  Hensley  v.  Morgan,  47  Cal. 
622;  Ham  v.  Cunningham,  50  Cal.  365.  The 
common-law  rule,  that  a  personal  right  of 
action  dies  with  the  person,  is  inapplicable 
where  the  plaintiff  dies  after  a  judgment 
in  his  favor,  which  has  not  been  vacated. 
Fowden  v.  Pacific  Coast  S.  S.  Co.,  149  Cal. 
151;  86  Pac.  178.  This  section  does  not 
have  the  effect  of  abating  an  action  against 
a  corporation  after  its  legal  death,  by  a 
forfeiture  of  its  charter  for  the  non-pay- 
ment of  its  license  taxes,  when  construed 
with  §  10a  of  the  act  of  June  13,  1906 
(Stats.  Extra  Sess.  1906,  p.  22),  providing 
that  the  trustees  may  maintain  or  defend 
any  action  or  proceeding  then  pending,  in 
behalf  of  or  against  the  corporation,  and 
§  400  of  the  Civil  Code.  Lowe  v.  Supreme 
Court,  165  Cal.  708;  134  Pac.  190.  A  judg- 
ment against  a  person,  who  is  dead  at  its 
rendition,  is  valid,  until  reversed  or  set 
aside  by  some  competent  judicial  author- 
ity, and  it  cannot  be  collaterallv  attacked. 
Tyrrell  v.  Baldwin,  67  Cal.  1;  6  Pac.  867. 
Where  a  party  dies  after  verdict,  but  be- 
fore judgment,  judgment  will  be  entered 
in  accordance  with  the  verdict  (Judson  v. 
Love,  35  Cal.  463),  and  where  a  party  dies 
after  judgment,  but  before  notice  of  appeal 
is  filed,  the  appeal  will  be  dismissed.  Jud- 
eon  V.  Love,  35  Cal.  463;  Shartzer  v.  Love, 
4  0  Cal.  93.  Where,  pending  an  appeal,  the 
defendant  dies,  and  the  court,  on  plain- 
tiff's motion,  substitutes  his  executor,  no- 
tice must  be  served  on  the- executor;  and  if 
notice  is  served,  and  the  executor  does  not 
appear  and  answer,  nor  adopt  the  answer 
of  the  testator  as  his  own,  and  judgment 
is  subsequently  entered  in  tho  testator's 
name  and  in  his  favor,  this  judgment  is 
not  one  in  favor  of  the  executor;  for,  as 
to  him,  the  case  has  never  been  tried,  and 
the  judgment  a  nullity.  McCreerv  v.  Ever- 
ding,  44  Cal.  284.  When  a  husband  and 
wife  sue  to  recover  the  homestead,  and  the 
wife  dies  without  issue,  pending  suit,  the 


husband  cannot  recover.  Gee  v.  Moore,  14 
Cal.  472.  An  assignee  or  grantee  is  the 
legal  representative  of  the  assignor  or 
grantor,  and,  as  such,  is  entitled  to  de- 
fend in  his  name.  Plummer  v.  Brown,  64 
Cal.  429;  1  Pac.  703;  Malone  v.  Big  Flat 
Gravel  Mining  Co.,  93  Cal.  384;  28  Pac. 
1063;  Trumpler  v.  Trumpler,  123  Cal.  2*48; 
55  Pac.  1008.  An  action  to  foreclose  a 
mortgage  does  not  abate  on  the  death  of 
the  defendant,  pending  suit,  but  survives 
against  the  estate.  Hibernia  Sav.  &  L.  Soc. 
V.  Wackenreuder,  99  Cal.  503;  34  Pac.  219; 
Union  Sav.  Bank  v.  Barrett,  132  Cal.  453; 
64  Pac.  713,  1071.  Upon  the  appointment 
of  a  personal  representative  of  the  defend- 
ant, the  plaintiff  has  the  same  right  to  pro- 
ceed against  him  as  he  would  have  against 
the  original  defendant.  Union  Sav.  Bank 
V.  Barrett,  132  Cal.  453;  64  Pac.  713,  1071. 
If,  pending  an  action  on  a  note  and  mort- 
gage, they  are  assigned,  and  the  assignee 
dies,  whereupon  his  estate  is  distributed  to 
his  widow,  she  may,  as  a  successor  in  in- 
terest, be  properly  substituted  as  plaintiff 
in  the  foreclosure  suit.  Blinn  Lumber  Co. 
V,  Me  Arthur,  150  Cal.  610;  89  Pac.  436. 

Effect  of  transfer  of  interest.  The  last 
clause  of  this  section  has  reference  to  the 
transfer  of  interest  before  judgment;  after 
judgment,  others  succeeding  to  interests  in 
the  property  affected  take  the  same  sub- 
ject to  t^e  judgment,  and  with  all  of  its 
protection.  Emerson  v.  McWhirter,  128 
Cal.  268;  60  Pac.  774.  The  last  clause  of 
this  section  is  permissive,  and  the  discre- 
tion of  the  court,  in  making  the  order,  is 
to  be  exercised  in  view  of  all  the  attend- 
ing circumstances.  Emerson  v.  McWhirter,. 
128  Cal.  268;  60  Pac.  774;  Hentig  v.  John- 
son, 12  Cal.  App.  423;  107  Pac.  582.  An  as- 
signee for  the  benefit  of  creditors  may  be 
substituted  as  a  party,  in  place  of  the  as- 
signor (Wilson  V.  Baker,  64  Cal.  475;  2 
•Pac.  253);  but  the  assignee  need  not  be 
substituted:  he  may  prosecute  or  defend 
in  the  name  of  his  assignor.  Stewart  v. 
Spaulding,  72  Cal.  264;  13  Pac.  661.  The 
court  rendering  a  judgment  has  control  of 
such  judgment,  and  authority  to  direct  the 
issuance  and  execution  of  process  there- 
under, and  to  determine  who  is  entitled 
thereto.  Eowe  v.  Blake,  112  Cal.  637;  44 
Pac.  1084;  McAuliffe  v.  Coughlin,  105  Cal. 
268;  38  Pac.  730.  Where  the  court,  in 
the  exercise  of  such  jurisdiction,  makes 
an  order  which  involves  the  determina- 
tion that  an  assignee  was  entitled  to  have 
process,  such  determination  is  conclusive, 
without  any  express  finding  that  such  as- 
signee was  the  owner  of  the  judgment,  or 
that  the  application  was  upon  notice  to 
the  judgment  plaintiff.  Rowe  v.  B]ake.  112 
Cal.  637;  44  Pac.  1084;  Hibernia  Sav.  &  L. 
Soc.  V.  Lewis,  117  Cal.  577;  47  Pac.  602; 
49  Pac.  714.  Against  a  collateral  attack,. 
it  will  be  presumed  that  the  application 
for  such  order  was  regularly  made  upon 
notice  to  the  parties  interested,  and  that 


253 


EFFECT   OF   TRANSFER   OF   INTEREST — SUBSTITUTION    OF   PARTIES.         §  385 


the  court,  upon  competent  evidence,  found 
and  determined  the  ownership  of  the  judg- 
ment, and  who  was  entitled  to  have  process 
for  its  execution.  Grim  v.  Kessing,  89  Cal. 
478;  23  Am.  St.  Eep.  491;  26  Pac.  1074; 
Caruthers  v.  Hensley,  90  Cal.  559;  27  Pac. 
411.  The  conveyance  by  the  plaintiff  of  the 
demanded  premises,  or  a  portion  thereof, 
pending  the  action,  does  not  necessarily 
defeat  the  suit  (Moss  v.  Shear,  30  Cal. 
467;  Barstow  v.  Newman,  34  Cal.  90);  and 
the  transfer  of  the  real  estate  under  at- 
tachment in  the  action  is  not  such  a  trans- 
fer of  an  interest  in  the  action  as  will  give 
the  transferee  the  right  to  be  substituted 
as  a  party  (Anderson  v.  Schloesser,  153 
Cal.  219;  94  Pac.  885),  but  the  acquirement 
of  a  pledge  by  the  pledgee,  pending  an 
action  on  the  note  secured  thereby,  gives 
the  pledgee  the  right  to  be  substituted. 
Merced  Bank  v.  Price,  9  Cal.  App.  177;  9S 
Pac.  383.  The  use  of  the  name  of  a  per- 
son as  a  nominal  plaintiff  is  not  improper, 
where  such  person  has  been  authorized  to 
act.  Cobb  v.  Doggett,  142  Cal.  142;  75 
Pac.  785.  A  purchaser  pendente  lite,  on 
giving  notice  of  such  purchase,  may  be 
substituted  in  place  of  the  original  party, 
under  this  section,  and  thus  conserve  his 
rights,  or  he  may  permit  the  action  to  con- 
tinue in  the  name  of  the  grantor,  but,  in 
either  event,  he  is  equally  bound  by  the 
judgment  with  his  grantor  (Hibernia  Sav. 
&  L.  Soc.  v.  Lewis,  117  Cal.  577;  47  Pac. 
602;  4<)'  Pac.  714;  Hohn  v.  Pauly,  11  Cal. 
App.  724;  106  Pac.  266);  and  he  has  con- 
trol of  the  action,  both  in  the  court  be- 
low and  in  the  supreme  court.  Trumpler 
v.  Trumpler,  123  Cal.  248;  55  Pac.  1008; 
People  V.  Mullan,  65  Cal.  396;  4  Pac.  348. 
Where  the  parties  to  an  action  have  dis- 
posed of  all  their  interest  to  a  third  party, 
and  thereafter,  upon  appeal,  by  fraudu- 
lent means,  procure  a  reversal,  the  supreme 
court  will  recall  the  remittitur,  stay  the 
proceedings  of  the  court  below,  and  assert 
its  jurisdiction  over  the  appeal,  on  the 
ground  that  its  jurisdiction  cannot  be  di- 
vested by  such  fraud  and  irregularity. 
Trumpler  v.  Trumpler,  123  Cal.  248;  55 
Pac.  1008;  Rowland  v.  Kreyenhagen,  24 
Cal.  52;  Vance  v.  Pena,  36  Cal.  328;  Han- 
son V.  McCue,  43  Cal.  178;  Bernal  v.  Wade, 
46  Cal.  640;  Holloway  v.  Galliac,  49  Cal. 
149;  People  v.  McDermott,  97  Cal.  247;  32 
Pac.  7;  In  re  Levinson,  108  Cal.  450;  41 
Pac.  483;  42  Pac.  479.  One  who  has  no 
further  interest  in  the  matter  in  litiga- 
tion has  no  right  to  interfere  with  the 
control  of  the  suit  respecting  it.  Harlan 
Douglas  Co.  V.  Moncur,  19  Cal.  App.  177; 
124  Pac.  1053.  A  grantee,  pendente  lite, 
unless  substituted  as  plaintiff,  acquires  no 
right  which  he  can  enforce  in  an  action, 
or  under  the  judgment.  Walsh  v.  Soule,  66 
Cal.  443;  6  Pac.  82.  Where  the  plaintiff, 
pendente  lite,  parts  with  his  interest,  the 
action  may  be  continued  in  his  name,  un- 
less  the   transferee   makes   an   application 


to  be  substituted.  Camarillo  v.  Fenlon,  49 
Cal.  202.  The  court  should  permit  the  sub- 
stituted party  to  file  an  amended  com- 
plaint; otherwise  he  may  be  seriously  em- 
barrassed on  the  trial.  Northern  Railway 
Co.  V.  Jordan,  87  Cal.  23;  25  Pac.  273. 
Substitution  may  be  had  of  a  new  corpo- 
ration, in  place  of  the  old  one,  in  a  pro- 
ceeding to  condemn  lands  under  the  right 
of  eminent  domain.  California  Central  Ry. 
Co.  V.  Hooper,  76  Cal.  404;  IS  Pac.  599. 
In  an  action  to  enforce  a  lien,  a  grantee, 
pendente  lite,  of  the  land  in  controversy, 
claiming  under  the  defendant,  may  appear 
and  move  to  vacate  a  judgment  and  open 
a  default.  McKendrick  v.  Western  Zinc 
Mining  Co.,  165  Cal.  24;  130  Pac.  865. 

Substitution  of  parties.  An  assignee  or 
transferee  cannot  acquire  any  right  which 
can  be  enforced,  in  his  own  name,  in  an 
action,  or  under  the  judgment,  unless  sub- 
stituted. Walsh  V.  Souie,  66  Cal.  443;  6 
Pac.  82.  Parties  substituted  take  up  the 
controversy  in  the  condition  in  which  they 
find  it,  and  subject  to  the  terms  of  stipu- 
lations theretofore  entered  into  by  the 
original  parties.  De  Temple  v.  Alexander, 
53  Cal.  3.  Where  the  property  in  contro- 
versy is  conveyed  pendente  lite,  and  no 
substitution  is  asked  for,  the  action  pro- 
ceeds in  the  name  of  the  original  plaintiff, 
and  no  application  to  or  order  by  the  court 
is  necessary.  Malone  v.  Big  Flat  Gravel 
Mining  Co.,  93  Cal.  384;  28  Pac.  1063.  The 
practice  in  this  state  is  well  settled,  on 
the  death  of  a  party  to  an  action,  to  allow 
the  substitution  of  his  legal  representa- 
tive, upon  the  suggestion  of  the  death,  and 
on  an  ex  parte  motion  showing  the  ap- 
pointment and  qualification  of  the  admin- 
istrator. Taylor  v.  Western  Pacific  R.  R. 
Co.,  45  Cal.  323;  Emeric  v.  Alvarado,  64 
Cal.  529;  2  Pac.  418;  Kittle  v.  Belleaarde, 
86  Cal.  556;  25  Pac.  55;  Campbell  v.  West, 
93  Cal.  653;  29  Pac.  219,  645;  De  Leonis 
V.  Walsh,  140  Cal.  175;  73  Pac.  813.  Sub- 
stitution of  parties  is  not  such  an  amend- 
ment of  the  pleadings  as  is  required  to  be 
made  on  notice,  or  to  be  engrossed  other- 
wise than  entered  in  the  minutes  of  the 
court.  Kittle  v.  Bellegarde,  86  Cal.  556; 
25  Pac.  55;  Farrell  v.  Jones,  63  Cal.  194; 
Brock  V.  Martinovich,  55  Cal.  516.  An 
allegation  of  the  representative  capacity 
of  a  substituted  executor,  filed  by  leave  of 
the  court,  in  connection  with  a  showing 
that  the  action  was  continued  in  his  name, 
is  a  sufficient  showing  of  the  appointment 
and  qualification  of  the  legal  representa- 
tive. Campbell  v.  West,  93  Cal.  653;  29 
Pac.  219,  645.  A  different  party  cannot 
be  substituted  as  plaintiff,  on  the  ground 
that  he  was  the  real  party  in  interest  when 
the  action  was  commenced.  Dubbers  v. 
Goux,  51  Cal.  153.  Where  it  is  admitted 
in  open  court,  by  all  the  parties,  that, 
under  the  will  of  the  decedent,  the  claim 
in  the  action  has  been  decreed  by  the  pro- 
bate   court   to   the   legatee   named   in   tha 


385 


PARTIES   TO   CIVIL  ACTIONS. 


25# 


will,  the  court  may  make  an  order  substi- 
tuting such  distributee  as  plaintiff.  Cock- 
rill  V.  Clyma.  98  Cal.  123;  32  Pac.  888. 
The  substitution  "in  case  of  any  other 
transfer  of  interest,"  must  be  made  by 
supplemental  complaint  or  answer.  Camp- 
bell V.  West,  93  Cal.  653;  29  Pac.  219,  645; 
Ford  V.  Bushard,  116  Cal.  273;  48  Pac.  119. 
In  case  of  assignment,  the  supplemental 
complaint  should  set  out  such  assignment, 
which  is  an  issuable  fact,  and  if  denied, 
its  proof,  as  in  all  other  cases  of  assign- 
ment, is  vital  to  a  recovery.  Ford  v.  Bush- 
ard, 116  Cal.  273;  48  Pac.  119;  Murdock  v. 
Brooks,  38  Cal.  596;  Eead  v.  Buffum,  79 
Cal.  77;  12  Am.  St.  Rep.  131;  21  Pac.  555. 
A  purchaser  pendente  lite  need  not  be  sub- 
stituted as  a  party  plaintiff.  Stufflebeem 
v.  Adelsbach,  135  Cal.  221;  67  Pac.  140; 
Sears  v.  Ackerman,  138  Cal.  583;  72  Pac. 
171.  "Where  an  action  is  commenced  by 
the  general  guardian  of  an  infant,  and  the 
infant  subsequently  appears  by  a  guardian 
ad  litem,  this  is  substitution,  and  not  in- 
tervention; the  guardian  ad  litem  takes 
the  case  in  the  state  in  which  he  finds  it. 
Temple  v.  Alexander,  53  Cal.  3.  Where 
there  is  an  action  pending  to  enforce  a 
lien  against  real  property,  and  the  defend- 
ant owner  conveys  his  interest  by  a  deed 
which  is  recorded,  and  the  action  is  there- 
after continued,  in  the  name  of  the  origi- 
nal defendant,  to  judgment,  the  grantee 
may  move,  in  his  own  name,  to  set  the 
judgment  aside,  and  appeal  from  an  order 
denying  the  motion.  Malone  v.  Big  Flat 
Gravel  Mining  Co.,  93  Cal.  384;  28  Pac. 
1063;  Plummer  v.  Brown,  64  Cal.  429;  1 
Pac.  703;  People  v.  MuUan,  65  Cal.  396; 
4  Pac.  348.  The  right  of  a  grantee,  as 
legal  representative,  cannot  be  enforced  in 
his  own  name,  unless  he  is  substituted  as 
plaintiff.  Walsh  v.  Soule,  66  Cal.  443;  6 
Pac.  82.  The  assignor  may  settle  a  claim, 
where  the  assignee  is  not  substituted. 
Hogan  v.  Black,  66  Cal.  41;  4  Pac.  943. 
As  between  the  assignor  and  the  assignee, 
the  assignment  transfers  the  interest  of 
the  plaintiff  in  the  subject-matter  of  the 
action,  but  the  assignee  cannot  avail  him- 
self of  the  benefit  of  the  same  against  the 
defendant,  without  notifying  him  of  the 
assignment,  or  without  having  himself  sub- 
stituted for  the  plaintiff.  Hogan  v.  Black, 
66  Cal.  41;  4  Pac.  943;  Doll  v.  Anderson, 
27  Cal.  248.  A  part  interest  may  be  as- 
signed, under  this  section;  and  the  assignee 
must  be  joined  as  plaintiff  with  the  as- 
signor (Cerf  V.  Ashlev,  68  Cal.  419;  9  Pac. 
658;  Cramer  v.  Tittle',  79  Cal.  332;  21  Pac. 
750) ;  and  the  rights  of  such  grantee  and 
his  protection,  under  this  section,  are  the 
same  as  though  he  acquired  the  entire  in- 
terest (Crescent  Canal  Co.  v.  Montgomery, 
124  Cal.  134;  56  Pac.  797);  and  he  may 
move  the  court  to  set  aside  a  judgment  en- 
tered by  stipulation  of  the  original  de- 
fendants to  the  action,  in  fraud  of  his 
rights.    Cramer  v.   Tittle,   79   Cal.  332;    21 


Pac.  750;  Crescent  Canal  Co.  v.  Mont- 
gomery, 124  Cal.  134;  56  Pac.  797.  Where- 
the  plaintiff  transfers  his  interests  to 
others,  and  the  action  is  prosecuted  in  his 
name,  without  a  substitution  of  parties  or 
a  change  of  attorneys  of  record,  a  stipu- 
lation for  dismissal  by  the  original  plain- 
tiff is  a  flagrant  breach  of  good  faith,  and 
an  order  of  dismissal,  entered  on  such- 
stipulation,  should  be  promptly  vacated. 
Walker  v.  Felt,  54  Cal.  386.  Where,  pend- 
ing litigation,  the  defendant  transfers  his. 
interest  to  a  third  person,  and  subsequently 
enters  into  a  fraudulent  stipulation  with 
the  plaintiff,  allowing  him  to  take  judg- 
ment, such  judgment  will  be  set  aside,  on 
motion  of  the  purchaser.  Plummer  v. 
Brown,  64  Cal.  429;  1  Pac.  703;  People  v. 
Mullan,  65  Cal.  396;  4  Pac.  348;  Crescent 
Canal  Co.  v.  Montgomery,  124  Cal.  134;  56 
Pac.  797.  Where  the  plaintiff  disposes  of 
his  interest,  the  substitution  of  the  trans- 
feree as  plaintiff  is  a  matter  in  which  the 
defendant  is  not  concerned,  and  in  which 
he  cannot  move;  it  concerns  only  the  origi- 
nal plaintiff  and  the  transferee;  as  against 
the  defendant,  the  former  has  a  right  to 
remain  in  court  until  the  case  is  disposed 
of.  Hestres  v.  Brennan,  37  Cal.  385.  The 
defendant  can  take  advantage,  by  supple- 
mental answer,  of  such  transfer.  Moss  v. 
Shear,  30  Cal.  467;  Barstow  v.  Newman,. 
34  Cal.  90;  Hestres  v.  Brennan,  37  Cal.  385. 
The  joinder  of  a  transferee  in  an  action  to 
foreclose  a  mortgage  is  proper,  if  not  neces- 
sary. Cerf  v.  Ashley,  68  Cal.  419;  9  Pae.. 
658.  Infant  heirs  succeeding  are  substi- 
tuted, ex  parte,  on  motion.  Emeric  v.  Al- 
varado,  64  Cal.  529;  2  Pac.  418.  The  want 
of  substitution  of  a  representative  does 
not  render  the  judgment  of  the  appellate 
court  void.  Phelan  v.  Tyler,  64  Cal.  80;  2S 
Pac.  114.  The  death  of  an  interested  party 
in  no  way  aft'ects  an  appeal,  and  it  will 
proceed  without  a  substitution  of  his  per- 
sonal representative.  Davies  &  Henderson 
Lumber  Co.  v.  Gottschalk,  81  Cal.  641;  22: 
Pac.  860.  A  representative  should  be  sub- 
stituted in  all  cases,  under  this  section, 
where  the  action  does  not  abate  on  the- 
death  of  the  partv.  Union  Savings  Bank 
v.  Barrett,  132  Cal.  453;  64  Pac.  713,  1071; 
Daneri  v.  Gazzola,  139  Cal.  416;  73  Pac. 
179;  De  Leonis  v.  Walsh,  140  Cal.  175;  73; 
Pac.  813.  The  substitution  of  heirs  and 
representatives  is  authorized  by  this  sec- 
tion (Hibernia  Sav.  &  L.  Soc.  v.  Wacken- 
reuder,  99  Cal.  503;  34  Pac.  219),  which 
may  be  made  on  an  ex  parte  suggestion 
and  proof  of  death,  without  any  amend- 
ment of  the  complaint,  though  all  subse- 
quent proceedings  should  be  in  the  name- 
of  the  substituted  party.  Kittle  v.  Belle- 
garde,  86  Cal.  556;  25  Pac.  55.  Personal 
representatives  are  not  proper  parties  to. 
be  substituted,  where  the  decedent  had 
transferred  his  interest;  the  action  must. 
either  be  continued  in  decedent's  name  by 
the   transferee,   or   the   latter  substituted.- 


255 


EFFECT  OF  DISABILITY  OF  PARTY. 


§385 


Tuffree  v.  Stearns  "Ranches  Co.,  124  Cal. 
306;  57  Pac.  69;  Daneri  v.  Gazzola,  139 
Cal.  416;  73  Pac.  179;  Blinn  Lumber  Co. 
.V.  Mc Arthur,  150  Cal.  610;  89  Pac.  436. 
Where  the  defendant  transfers  his  interest, 
pendente  lite,  to  one  having  notice  of  the 
pendency  of  the  action,  the  transferee  may 
elect  to  be  substituted  as  defendant  or  to 
defend  in  the  name  of  the  original  defend- 
ant, who  thereupon  becomes  merely  a  nomi- 
nal party,  and  upon  his  death  his  repre- 
sentatives cannot  be  substituted.  Tuffree 
V.  Stearns  Eanchos  Co.,  124  Cal.  306;  57 
Pac.  69.  Where  the  respondent  dies  pend- 
ing an  appeal,  his  personal  representatives 
must  be  substituted  in  the  supreme  court; 
substitution  in  the  trial  court,  after  ap- 
peal taken,  is  not  noticed  by  the  supreme 
court.  Lyons  v.  Roach,  72  Cal.  85;  13  Pac. 
151.  An  action  in  ejectment  survives  the 
death  of  the  defendant,  pendente  lite,  and 
the  representative  of  the  deceased  may  be 
substituted.  Barrett  v.  Birge,  50  Cal.  655. 
Where  the  personal  representatives  are 
substituted,  the  judgment  does  not  bind 
the  transferee,  and  does  not  protect  the 
adverse  party.  Daneri  v.  Gazzola,  139  Cal. 
416;  73  Pac.  179. 

Effect  of  disability  of  party.  An  appeal 
may  be  prosecuted  by  a  bankrupt  or  his 
assignee,  under  this  section,  though  the 
bankruptcy  was  adjudicated  before  the 
taking  of  the  appeal.  O'Neil  v.  Dough- 
erty, 46  Cal.  575.  An  assignee  for  the 
benefit  of  creditors  may  be  substituted  as 
a  party,  in  the  place  of  an  assignor  in  a 
pending  action.  Wilson  v.  Baker,  64  Cal. 
475;  2  Pac.  253.  Where  one  of  the  plain- 
tiffs in  an  action  is  adjudged  an  insolvent 
during  its  pendency,  his  assignee  need  not 
be  substituted  in  his  place.  Stewart  v. 
Spaulding,  72  Cal.  264;  13  Pac.  661.  Upon 
the  expiration  of  the  term  of  a  public  offi- 
cer, the  court,  upon  the  proper  suggestion 
of  the  fact,  will  order  the  substitution 
of  his  successor  as  defendant.  Ex  parte 
Tinkum,  54  Cal.  201;  Jordan  v.  Hubert,  54 
Cal.  260, 

SutTivorship  of  actions.  See  note  53  Am.  Rep. 
525. 

Effect  of  death  of  party.  See  note  29  Am.  St. 
Rep.  816. 

Substitution  of  personal  representative.  See 
note  50  Am.  St.  Rep.  742. 

Effect  of  death  of  party  on  action  for  death 
by  wrongful  act.    See  note  70  Am.  St.  Rep.  685. 

Survival  of  action  for  death  by  wrongful  act 
after  death  of  wrongdoer.  See  notes  12  Ann.  Cas. 
462;  11  L.  R.  A.   (N.  S.)   1157. 

Survival  of  action  for  death  by  wrongful  act 
after  death  of  beneficiary.  See  uoie  17  Ann.  Cas. 
773. 

Whether  statutory  action  for  wrongful  death 
survives  to  personal  representative  of  original 
beneficiary.    See  note  24  L.  R.  A.   (N.  S.)   S44. 

CODE  COMMISSIONERS'  NOTE.  1.  Construc- 
tion of  lection.  This  rule  as  to  right  of  a  third 
person,  under  our  statute,  to  be  made  a  party, 
where  he  is  directly  intere.'^ted  in  the  subject- 
matter  in  litigation,  as  it  existed  upon  this  sub- 
ject, both  at  law  and  in  chancery,  has  been  al- 
tered by  the  Practice  Act  of  this  state,  by  the 
sixteenth  and  seventeenth  sections  of  which  it  is 
provided  that,  in  case  of  the  transfer  of  any  in- 


terest in  the  action  durinq;  the  prndcncy,  the 
suit  may  be  continued  in  the  name  of  the  oiinj- 
n.il  party,  or  the  court  may  allow  the  person  to 
whom  the  transfer  is  made  to  be  substituted  in 
the  action.  Again,  it  is  provided  that  the  court 
shall  order  parties  to  be  brought  in,  if  thore  can- 
uot  be  a  complete  determination  of  the  action 
without  prejudice  to  their  interests.  Brooks  v. 
Hager.  5  Cal.  282. 

2.  Judgment  for  or  against  a  party  deceased. 
See  §  669,  post;  see  also  Judson  v.  Love,  35  CaL 
464. 

3.  Transfer  of  cause  of  action  in  cject-jient. 
The  transfer,  by  the  plaintiff  in  ejecimpnt,  of  the 
dnmandtd  premises,  pending  the  action,  is  a 
transfer  of  the  cause  of  action,  within  the  pro- 
visions of  this  section,  and  the  artion  m.iy  he 
continued  in  the  name  of  the  original  plaintiff. 
Mo.ss  V.  Shear,  30  Cal.  468. 

4.  Transfer  of  plaintiff's  Interest  in  cause  of 
action.  If  the  plaintiff  has  conveyed  the  de- 
manded premises,  pending  ejectment,  the  court, 
by  the  consent  of  both  the  plaintiff  and  vendee, 
may  make  an  order  continuing  the  action  in  the 
name  of  the  original  plaintiff.  Moss  v.  Shear,  30 
Cal.  46R. 

5.  Plaintiff  may  recover  after  sale  of  land.  If 
the  action  is  continued,  as  above  stated,  in  the 
name  of  the  original  plaintiff,  notwithstanding 
the  premises  have  been  transferred  by  him,  he 
may  recover  judgment  for  both  possession  and 
the   rents   and   profits.     Moss  v.  Shear,  30  Cal.  46S. 

6.  Death  of  one  of  several  respondents.  If 
one  of  several  respondents  died  before  notice  of 
appeal  was  filed,  a  motion  to  dismiss  the  appeal 
as  to  him  must  be  granted.  Shartzer  v.  Love,  40 
Cal.  96;  Judson  v.  Love,  35  Cal.  463. 

7.  Husband  cannot  recover  homestead  on  der.th 
of  wife.  If  the  wife  die  after  an  action  has  been 
commenced  by  herself  and  husband  for  the  home- 
stead, a  recovery  by  the  husband  is  defeated,  al- 
though his  right  to  recover  existed  at  the  time 
when  the  action  was  begun.  Gee  v.  Moore,  14 
Cal.  472,  overruling  Taylor  v.  Hargous,  4  Cal. 
273;  60  Am.  Dec.  606:  Pools  v.  Gerrard,  6  Cal. 
71;  65  Am.  Dec.  481;  Revalk  v.  Kraemer,  8  Cal. 
73;   68  Am.  Dec.  304. 

8.  Death  of  party  to  a  divorce  suit  abates  ac- 
tion. Partitioner's  community  property.  A  sup- 
plemental decree  in  the  divorce  suit,  after  death 
of  husband,  under  which  the  plaintiff  claims  to 
be  the  owner  of  the  whole  land  sued  for.  was,  in 
our  judgment,  null  and  void,  as  against  the  heirs 
at  law.  By  the  death  of  the  husband,  the  suit 
abated,  for  all  the  purposes  of  further  judicial 
action  therein,  on  the  subject  of  partitioning  the 
common  property,  and  the  court  had  no  jurisdic- 
tion to  adjudge  that  the  property  should  be  sold 
and  the  proceeds  divided,  without  a  revivor  as  to 
the  heirs.  No  such  revivor  was  had,  and  the  in- 
terest of  the  heirs  was,  therefore,  unaffected  by 
the  supplemental  decree,  and  the  transactions  un- 
der   it.     Ewald  V.  Corbett,  32  Cal.  499. 

9.  Where,  during  action  in  name  of  husband 
and  wife,  they  are  divorced.  An  action  begun  by 
husband  and  wife  in  their  joint  names,  does  not 
abate  in  consequence  of  a  divorce.  Calderwood 
V.  Pyser,  31  Cal.  335. 

1,0.  Conveyance  of  demanded  land,  pending 
suit.  The  conveyance  of  demanded  uremises,  by 
the  plaintiff  in  ejectment,  pending  the  suit,  to  a 
person  not  a  party  to  the  action,  does  not  neces- 
sarily defeat  the  action.  Moss  v.  Shear,  30  Cal. 
468  ;  Barstow  v.  Newman,  34  Cal.  90. 

11.  Continuation  of  action  in  name  of  execu- 
tor on  death  of  party.  What  is  a  sufficient  sug- 
gestion of  death  of  principal,  and  a  revival  of 
the  cause  in  the  name  of  the  executor.  See  Greg- 
ory V.  Haynes,  21  Cal.  443. 

12.  Death  of  appellant  after  argument  of  his 
case  on  appeal.  The  death  of  an  appellant  after 
argument  of  his  case  upon  appeal,  does  not  con- 
stitute any  ground  for  delaying  a  decision  or  de- 
parting from  the  ordinary  course  of  procedure, 
except  as  to  the  entry  of  the  judgment  which 
may  be  rendered.  The  entry  should  be  of  a  dav 
anterior  to  the  appellant's  death.  King  v.  Dunn 
21  Wend.  (N.  Y.)  253;  Campbell  v.  Mesier.  4 
Johns.  Ch.  335;  8  Am.  Dec.  570;  Miller  v.  Gunn, 
7  How.  Pr.   159;   Black  v.   Shaw.  20  Cal.   69. 

13.  Death  of  appellant  previous  to  argument 
on  appeal.     The  rule  is  different  from  that  above 


386 


PARTIES  TO  CIVIL  ACTIONS. 


256 


stated  if  the  death  occurs  previous  to  the  argu- 
ment; in  that  event,  further  proceedings  can 
only  be  liad  upon  leave  given  after  suggestion  of 
the  death  is  made.    Black  v.   Shaw,  20  Cal.  69. 

14.  Defendants  cannot  change  plaintiffs.  The 
substitution  of  one  person  as  plaintiff  in  place  of 
another,  in  case  of  a  transfer  of  the  cause  of 
action,  is  a  matter  which  the  defendant  cannot 
move.  It  concerns  only  the  plaintiff,  or  the  per- 
son to  whom  the  transfer  is  made.  If  the  plain- 
tiff desires  to  take  advantage  of  the  transfer  for 
any  cause,  he  must  do  so  by  supplemental  an- 
swer. As  against  a  defendant,  a  plaintiff  has  a 
right  to  stay  in  court  till  his  case  has  been  tried. 
Hestres  v.  Brennan,  37  Cal.  385. 

15.  Mode  of  showing  the  death  of  a  party  and 
substitution  of  his  legal  representatives.  The 
death  of  a  party,  pendente  lite,  should  be  made 
known  by  suggestion  of  that  fact  to  the  court, 
and  the  action  continued  by  order  of  the  court 
against  the  representative  oif  the  party  deceased, 
of  which  he  must  be  duly  notified  before  he  can 
be  affected  by  further  proceedings  in  the  action. 
Judson  ▼.  Love.  35  Cal.  464. 

16.  Suggestion  of  the  death  of  party.  When 
it  may  be  made.  It  is  regular  and  proper  to 
suggest  the  death  of  a  party  to  an  action  in  any 
court,  and  at  any  stage  of  the  proceedings.  And 
the  death  of  a  party  occurring  before  the  appeal 
taken  may  be  shown  in  this  court  bv  affidavit  of 
the  fact.    Judson  v.  Love,  35  Cal.  464. 


17.  Ceath  of  the  defendant  during  the  pen- 
dency of  an  action.  In  an  action  to  recover  judg- 
ment on  a  promissory  note,  the  suggestion  of  the 
death  of  the  defendant,  and  the  substitution  of 
his  administrator,  and  the  continuance  of  the 
suit  against  him,  subject  the  proceedings  to  such 
rules  of  the  Probate  Act  as  are  applicable  to 
proceedings  for  the  collection  of  claims  against 
an  estate  of  a  deceased  person.  Myers  ▼.  Mott, 
29   Cal.  359;    89  Am.  Dec.  49. 

18.  Judgment  against  administrators  enforcing 
attachment  lien.  If  the  defendant  dies  after  tha 
service  of  summons  and  the  levy  of  an  attach- 
ment on  his  property,  and  before  judgment,  and 
the  administrator  is  substituted,  and  the  action 
continued  against  him,  the  court  cannot  render  a 
judgment  enforcing  the  lien  of  the  attachment  by 
a  sale  of  the  attached  property,  and  an  applica- 
tion of  the  proceeds  to  the  satisfaction  of  the 
demand.  Myers  v.  Mott,  29  Cal.  359;  89  Am. 
Dec.  49. 

19.  Purchase  of  property  pendinf;  an  action  to 
recover  possession  of  it.  One  who  buys  land 
during  the  pendency  of  an  action  to  recover  pos- 
session of  it,  in  wliich  his  grantor  is  a  defend- 
ant, may  thereafter  continue  the  defense  in  the 
name  of  his  gr.intor,  or  may  cause  himself  to  be 
substituted  in  his  place,  lilastick  v.  Thorp,  29 
Cal.  444. 


§  386.  Another  person  may  be  substituted  for  the  defendant.  Conflicting 
claims,  how  made.  A  defendant,  against  whom  an  action  is  pending  upon  a 
contract,  or  for  specific  personal  property,  may,  at  any  time  before  answer, 
upon  affidavit  that  a  person  not  a  party  to  the  action  makes  against  him, 
and  without  any  collusion  with  him,  a  demand  upon  such  contract,  or  for 
such  property,  upon  notice  to  such  person  and  the  adverse  party,  apply  to 
the  court  for  an  order  to  substitute  such  person  in  his  place,  and  discharge 
him  from  liability  to  either  party,  on  his  depositing  in  court  the  amount 
claimed  on  the  contract,  or  delivering  the  property  or  its  value  to  such  per- 
son as  the  court  may  direct;  and  the  court  may,  in  its  discretion,  make  the 
order.  And  whenever  conflicting  claims  are  or  may  be  made  upon  a  person 
for  or  relating  to  personal  property,  or  the  performance  of  an  obligation,  or 
any  portion  thereof,  such  person  may  bring  an  action  against  the  conflicting 
claimants  to  compel  them  to  interplead  and  litigate  their  several  claims 
among  themselves.  The  order  of  substitution  may  be  made  and  the  action 
of  interpleader  may  be  maintained,  and  the  applicant  or  plaintiff  be  dis- 
charged from  liability  to  all  or  any  of  the  conflicting  claimants,  although 
their  titles  or  claims  have  not  a  common  origin,  or  are  not  identical,  but  are 
adverse  to  and  independent  of  one  another. 


Legislation  §  386.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  658,  as  amended  by 
Stats.  1854,  Redding  ed.  p.  72,  Kerr  ed.  p.  102, 
§  70,  which  had  the  word  "due"  before  "notice 
to  such  person,"  and  with  this  omission  the  sec- 
tion was  enacted  in  1872,  ending  with  the  words 
"make  the  order." 

2.  Amended  by  Stats.  18S1,  p.  19,  (1)  chan- 
ging the  word  "such"  before  "contract"  and  be- 
fore "property"  from  the  words  "the  same,"  and 
(2)  adding  the  rest  of  the  section  after  the 
•words   "make  the  order." 

3.  Amendment  by  Stats.  1901,  p.  126;  un- 
constitutional.    See   note   ante,  §  5. 

Intervention  by  substituticn  of  defend- 
ant. A  party  sued  upon  a  debt,  contract, 
or  claim,  upon  which  another  has  or  claims 
a  demand,  or  right  to  receive  the  money, 
may,  before  answer,  file  an  affidavit  set- 
ting: up  such  facts,  and  have  an  order  made 
.thereon,  substituting  such  claimant  as  de- 


fendant in  his  place  or  stead;  and  by  pay- 
ing the  money  into  the  court  he  may  be 
relieved  of  all  further  liability.  Pfister 
V.  Wade,  69  Cal.  133;  IQ  Pac.  369;  Howell 
V.  Stetefeldt  Furnace  Co.,  69  Cal.  153;  10 
Pac.  390;  Cross  v.  Eureka  Lake  etc.  Canal 
Co.,  73  Cal.  302;  2  Am.  St.  Rep.  SOS;  14 
Pac.  885;  San  Francisco  Sav.  Union  v. 
Long,  123  Cal.  107;  55  Pac.  70S;  137  Cal. 
68;  69  Pac.  687;  Orient  Ins.  Co.  v.  Peed, 
81  Cal.  145;  22  Pac.  484;  Woodmen  of  the 
Word  V.  Eutledge,  133  Cal.  640;  65  Pac. 
1105;  Kimball  v.  Eichardson-Kimball  Co., 
Ill  Cal.  3S6;  43  Pac.  1111.  A  person  seek- 
ing to  bring  in  a  party  to  litigate  his 
claim,  must  show  that  such  person  claims 
an  interest  in  the  property,  or  has  made  a 
deuiund   therefor.     McGorray  v.   Stockton 


257 


CONFLICTING   CLAIMS — SUBSTITUTION. 


§386 


Snv.  &  L.  Soc,  131  Cal.  321;  63  Pac.  479. 
The  order  should  specifically  state  the 
nature  and  character  of  the  claim  of  the 
defendant.  Warnock  v.  Harlow,  96  Cal. 
298;  31  Am.  St.  Rep.  209;  31  Pac.  106. 
There  must  be  claims  to  be  litigated,  or 
an  order  for  intervention  cannot  be  made. 
Cahoon  v.  Levy,  4  Cal.  243. 

Interpleader,  wliere  there  are  conflicting 
claims.  The  second  clause  of  this  section 
makes  no  provision  for  an  order  permitting 
the  plaintiff  in  an  action  of  interpleader 
to  pay  the  money  into  court  or  to  deliver 
the  property.  Kimball  v.  Richardson-Kim- 
ball Co.,  Ill  Cal.  386;  43  Pac.  1111;  Fox 
V.  Sutton,  127  Cal.  515;  59  Pac.  939.  This 
section  applies  to  conflicting  claims  of  at- 
torneys to  a  particular  fuud  for  their  fees 
(Sullivan  v.  Lusk,  7  Cal.  App.  1S6;  94  Pac. 
91,  92),  and  in  an  action  to  compel  defend- 
ants to  litigate  among  themselves  their 
claims  to  certain  moneys  in  the  hands  of 
plaintiff.  Water  Supply  Co.  v.  Sarnow,  6 
Cal.  App.  586;  92  Pac.  667.  Where  a  case 
is  a  proper  one  for  an  interpleader,  and 
the  plaintiff's  complaint  is  sufficient,  an 
order  will  be  made  discharging  him  from 
liability  to  the  conflicting  claimants,  and 
requiring  them  to  litigate  their  several 
claims  among  themselves.  Interlocking 
Stone  Co.  v.  Scribner,  19  Cal.  App.  344; 
126  Pac.  178.  Until  an  order  is  obtained 
therefor,  a  party  cannot,  of  his  own  voli- 
tion, relieve  himself  of  responsibility  by 
volunta,rily  placing  the  property  or  money 
in  the  hands  of  the  clerk,  which  would  not 
then,  in  any  proper  sense,  be  in  the  cus- 
tody of  the  law.  Kimball  v.  Richardson- 
Kimball  Co.,  Ill  Cal.  386;  43  Pac.  1111. 
An  interpleader  will  be  sustained  against 
persons  who  claim,  legally  or  equitably, 
the  same  thing,  debt,  or  duty,  whenever 
it  is  necessary  for  the  protection  of  one 
"who  has  incurred  no  independent  liability 
to  any  of  the  claimants  and  who  does  not 
himself  claim  an  interest  in  the  matter. 
Pfister  V.  Wade,  56  Cal.  43;  Sullivan  v. 
Lusk,  7  Cal.  App.  186;  94  Pac.  91,  92. 
Where  one  of  two  claimants  of  the  same 
fund  litigates  it  and  secures  judgment, 
the  other,  standing  by,  cannot  deprive 
hira  of  the  fruits  of  his  labor,  by  com- 
pelHng  him  to  litigate  again  his  right  to 
the  fund.  Wilson  v.  Heslep,  4  Cal.  300. 
Defendants  in  interpleader  are  persons 
having  adverse  interests.  McDevitt  v. 
.Sullivan,  8  Cal.  592.  Notice  of  the  claim 
to  the  debtor  is  necessary,  in  order  to 
make  him  liable  to  the  claimant.  Hogan 
V.  Black,  66  Cal.  41;  4  Pac.  943.  It  is^  an 
inflexible  rule,  that  the  thing  to  which  the 
parties  make  adverse  claims  must  be  one 
and  the  same  thing,  or  in  other  words,  the 
claims  must  be  identical;  there  may  be 
cases  in  which  all  the  fund  (where  the 
plaintiff  sustains  to  it  the  mere  relation 
of  a  stockholder  or  trustee)  may  not  be 
claimed  by  each  of  the  defendants;  but 
the  defendants  must  assert  adverse  claims 
1  Fair. — 17 


to  all  and  every  pnrt  of  it.  Pfister  v. 
Wade,  56  Cal.  43.  An  action  in  inter- 
l)leader  cannot  be  employed  to  determine 
disputed  claims  between  the  plaintiff  aud 
the  defendants;  the  amounts  claimed  by 
the  defendants,  or  any  of  them,  must  be 
admitted  by  the  plaintiff,  and  he  must 
be  a  mere  uninterested  stakeholder;  and 
where  one  of  them  claims  more  than  the 
plaintiff  admits  to  be  due,  the  interpleader 
is  defeated:  the  general  rule  is,  that  an 
interpleader  cannot  be  invoked,  where  the 
plaintiff  denies  the  claim;  but  a  denial, 
made  in  another  action,  does  not  defeat 
an  interpleader  subsequently  filed.  Orient 
Ins.  Co.  v.  Reed,  81  Cal.  14.5;  22  Pac.  484. 
It  is  essential  to  the  right  of  interpleader, 
that  the  person  standing  in  the  position  of 
a  stakeholder  is  ignorant  of  the  rights 
of  the  different  claimants  of  the  fund, 
debt,  duty,  or  property  owing  by  him  or 
in  his  possession,  or  that  there  is  some 
doubt  as  to  whom  he  shall  deliver  the 
property,  pay  the  debt,  or  render  the  duty, 
so  that  he  cannot  safely  do  so  to  auy  one 
of  them.   Pfister  v.  Wade,  56  Cal.  43. 

The  pleadings.  Defects  in  matter  of 
formal  allegation  may  be  cured  by  amend- 
ment. Orient  Ins.  Co.  v.  Reed,  81  Cal.  115; 
22  Pac.  484.  A  demurrer  must  be  made 
or  an  objection  must  be  raised  to  the  com- 
plaint, or  any  objection  to  the  p]aintiff"s 
right  of  action  will  be  deemed  waived. 
San  Francisco  Sav.  Union  v.  Long,  123  Cal. 
107;  55  Pac.  708;  Woodmen  of  the  World 
V.  Eutledge.  133  Cal.  640;  65  Pac.  110.3. 
The  plaintiff  may  dismiss  the  proceeding 
at  any  time,  upon  the  payment  of  costs, 
where  no  counterclaim  has  been  fiiled  or 
affirmative  relief  asked.  Kaufman  v.  Su- 
perior Court.  115  Cal.  152;  46  Pac.  904. 

Order  of  substitution.  An  interlocutory 
order,  requiring  the  defendants  to  come  in 
and  litigate  their  conflicting  claims,  should 
not  be  made  until  it  has  first  been  deter- 
mined that  the  plaintiff  has  a  right  to 
bring  the  action.  San  Francisco  Sav.  Union 
V.  Long,  123  Cal.  107;  55  Pac.  708.  Per- 
sons brought  in  in  invitum,  under  this 
section,  are  entitled  to  a  change  of  place 
of  trial  to  the  county  in  which  they  re- 
side. Howell  v.  Stetefeldt  Furnace  Co.,  69 
Cal.  153;  10  Pac.  390. 

Liability  of  plaintiff.  Where  an  inter- 
locutory order  is  made,  bringing  in  the 
conflicting  claimants,  and  dismissing  the 
plaintiff,  he  ceases  to  be  a  narty  to  the 
action,  and  is  not  responsible  for  costs. 
San  Francisco  Sav.  Union  v.  Long,  137 
Cal.  68;  69  Pac.  387.  It  is  not  necessary 
that  the  plaintiff'  in  a  bill  for  interpleader 
shall  ofl'er  to  pay  the  costs  of  a  previous 
suit  by  one  of  the  defendants  against  him: 
such  costs  are  taxable  in  that  action. 
Orient  Ins.  Co.  v.  Reed,  81  Cal.  145;  22 
Pac.  4S4. 

Conllictins  claimants.  A  corporation 
paying  the  money  into  court,  and  comply- 
ing   with    the    provisions    of    this    section, 


ism 


PARTIES  TO   CIVIL  ACTIONS. 


258 


8  Cal.  592;  Warnock  v.  Harlow,  96  Cal. 
298;  31  Am.  St.  Rep.  209;  31  Pac.  166.  In 
such  cases  the  court  may  make  an  order 
directing  the  tenant  to  pay  the  amount  of 
the  rents  sti]nilated  in  the  lease  into  court, 
and  thus  absolve  the  tenant  from  liability 
to  any  of  the  parties.  Schluter  v.  Harvey, 
65  Cal.  158;  3  Pac.  659.  Interpleader  by 
a  judgment  debtor  is  not  allowable,  under 
this  section.  Collins  v.  Augell,  72  Cal.  513; 
14  Pac.  135. 

CODE  COMMISSIONERS'  NOTE.  This  is 
§  658  of  the  Practice  Act,  taken  from  its  place 
and  inserted  here  because  it  relates  to  parties 
to  actions. 

When  tenant  finds  there  are  adverse  claimants 
to  property  he  has  rented.  When  there  are  ad- 
verse claimants  to  the  property,  a  tenant  siiould 
tile  a  bill  of  interpleader,  making  them  parties 
thereto,  and  offering  to  pay  the  rents  into  cimrt 
to  abide  its  ultimate  decision.  McDevitt  v.  Sulli- 
van, 8  Cal.  592. 


may  have  the  claimants  to  dividends  sub- 
stituted in  its  place  as  defendants,  and  be 
relieved  of  all  responsibility.  Cross  v. 
Eureka  Lake  etc.  Canal  Co.,  73  Cal.  302;  2 
Am.  St.  Rep.  SOS;  14  Pac.  885.  An  insur- 
ance company  sustaining  a  loss,  involving 
conflicting  claims  to  the  money  payable 
thereunder,  may  file  an  action  in  inter- 
pleader, and  have  an  arder  directing  it 
to  pay  the  money  into  court,  and  thus  be 
discharged  from  further  liabilitv.  Orient 
Ins.  Co.  V.  Reed,  81  Cal.  145;  22"  Pac.  484. 
A  tenant  may  file  a  complaint  in  inter- 
pleader, making  all  the  adverse  claimants 
to  the  rents  parties  defendant,  and  pay 
the  same  into  court,  to  abide  the  ultimate 
decision  (McDevitt  v.  Sullivan,  8  Cal.  592; 
Schluter  v.  Harvey,  65  Cal.  158;  3  Pac. 
659) ;  also  on  other  claims,  where  there  is 
privity  of  estate  between  the  claimants 
and   the   landlord.     McDevitt   v.    Sullivan, 

§  387.  Intervention,  when  it  takes  place,  and  how  made.  At  any  time 
before  trial,  any  person,  who  has  an  interest  in  the  matter  in  litigation,  or 
in  the  success  of  either  of  the  parties,  or  an  interest  against  both,  may  inter- 
vene in  the  action  or  proceeding.  An  intervention  takes  place  when  a 
third  person  is  permitted  to  become  a  party  to  an  action  or  proceeding  be- 
tween other  persons,  either  by  joining  the  plaintiff  in  claiming  what  is  sought 
by  the  complaint,  or  by  uniting  with  the  defendant  in  resisting  the  claims 
of  the  plaintiff,  or  by  demanding  anything  adversely  to  both  the  plaintiff 
and  the  defendant,  and  is  made  by  complaint,  setting  forth  the  grounds  upon 
which  the  intervention  rests,  filed  by  leave  of  the  court  and  served  upon  the 
parties  to  the  action  or  proceeding  who  have  not  appeared,  and  upon  the 
attorneys  of  the  parties  who  have  appeared,  who  may  answer  or  demur  to 
it  W'ithin  ten  days  from  the  service  thereof,  if  served  wdthin  the  county 
wherein  said  action  is  pending,  or  within  thirty  days  if  served  elsewhere. 


Eminent  domain.    Intervention  in.    Post,  §  1246. 

Legislation  §  387.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §§  659-661  (Stats.  1854, 
Redding  ed.  p.  73,  Kerr  ed.  p.  102,  §§  71-73), 
which  read:  "§  71  [§  659].  Any  person  shall  be 
entitled  to  intervene  in  an  action  who  has  an 
interest  in  the  matter  in  litigation,  in  the  suc- 
cess of  either  of  the  parties,  to  the  action  or 
an  interest  against  both.  An  intervention  takes 
place,  when  a  third  person  is  permitted  to  be- 
come a  party  to  an  action  between  other  per- 
sons, either  by  joining  the  plaintiff  in  claiming 
what  is  sought  by  the  complaint,  or  by  uniting 
with  the  defendant  in  resisting  the  claims  of  the 
plaintiff,  or  by  demanding  anything  adversely 
to  both  the  plaintiff  and  defendant."  "§  72 
[§660 J.  A  third  person  may  intervene  either 
before  or  after  issue  has  been  joined  in  the 
cause."  "§73  [§661].  The  intervention  shall 
be  by  petition  or  complaint,  filed  in  the  court 
in  which  the  action  is  pending,  and  it  must  set 
forth  the  grounds  on  which  the  intervention 
rests;  a  copy  of  the  petitions  or  complaint  shall 
be  served  upon  the  party  or  parties  to  the  action 
against  whom  anything  is  demanded,  who  shall 
answer  it  as  if  it  were  an  original  complaint  in 
the  action."  When  enacted  in  1872,  the  section 
read  the  same  as  when  amended  by  Code  Amdts. 
1873-74,  p.  296,  down  to  the  words  "action  or 
proceeding,"  the  section  ending,  after  these 
words,  with  the  clause,  "who  may  answer  it  as 
if  it  were  an  original   complaint." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
296,  and  then  read:  "Any  person  may,  before 
the   trial,    intervene   in   an   action   or   proceeding, 


who  has  an  interest  in  the  matter  in  litigation, 
in  the  success  of  either  of  the  parties,  or  an  in- 
terest against  both.  An  intervention  takes  place 
when  a  third  person  is  permitted  to  become  a 
party  to  an  action  or  proceeding  between  other 
persons,  either  by  joining  the  plaintiff  in  claim- 
ing what  is  sought  by  the  complaint,  or  by  unit- 
ing with  the  defendant  in  resisting  the  claims 
of  the  plaintiff,  or  by  demanding  anything  ad- 
versely to  both  the  plaintiff  and  the  defendant, 
and  is  made  by  complaint,  setting  forth  the 
grounds  upon  which  the  intervention  rests,  filed 
by  leave  of  the  court  and  served  upon  the  par- 
ties to  the  action  or  proceeding  who  have  not 
appeared,  and  upon  the  attorneys  of  the  parties 
who  have  appeared,  who  may  answer  or  demur 
to  it  as  if  it  were  an  original  complaint." 

3.  Amendment  Dy  Stats.  1901,  p.  127;  un- 
constitutional.    See  note   ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  703;  the  code 
commissioner  saying,  "The  amendment  consists 
in  adding  the  words,  'within  ten  days  from  the 
service  thereof,  if  served  within  the  county 
wherein  said  action  is  pending,  or  within  thirty 
days  if  served  elsewhere,'  thus  removing  any 
ambiguity  respecting  the  time  within  which  the 
complaint   in   intervention   must   be   answered." 

Interest  in  the  matter  In  litigation. 
Any  one  having  an  interest  in  the  matter 
in  litigation  may  be  permitted  to  inter- 
vene before  the  trial  of  the  action  or  the 
hearing  of  the  proceedings.  Leonis  v.  Bis- 
cailuz,    101    Cal.    330;    35    Pae.    875,     "To 


259 


INTERVENTION — WHEN  TAKES  PLACE — UOW   MADE. 


§387 


intervene"  is  to  ai)pear  as  a  party,  to  pro- 
tect some  right,  or  an  interest  affected 
thereby,  in  a  pending  action,  carried  on 
by  other  persons,  wliere  the  intervener  has 
not  the  right  to  institute  or  carry  on  the 
proceeding  himself.  Estate  of  Ghio,  15" 
Cal.  552;  137  Am.  St.  Rep.  145;  .S?  L.  K. 
A.  (N.  S.)  549;  I  US  Pac.  516.  Where  the 
court  allows  a  party  to  intervene,  the 
plaintiff  cannot  afterwards,  by  a  dismissal 
of  the  action  as  to  some  of  the  defendants, 
deprive  such  party  of  the  right  to  a  judg- 
ment on  his  claim,  unless  the  court  sets 
aside  the  order  allowing  intervention. 
Townsend  v.  Driver,  5  Cal.  App.  581;  90 
Pac.  1071.  The  interest  entitling  a  person 
to  intervene  must  be  one  created  by  a 
claim  to  the  demand  in  a  suit,  or  a  claim 
to  or  lien  upon  the  property  which  is  the 
subject  of  the  litigation.  Horn  v.  Volcano 
Water  Co.,  13  Cal.  62;  73  Am.  Dee.  569; 
Eobinson  v.  Crescent  City  Mill  etc.  Co., 
93  Cal.  316;  28  Pac.  950.  The  code  does 
not  attempt  to  state  what  or  how  great 
the  interest  shall  be,  in  order  to  give  the 
right  to  intervene;  any  interest  is  suffi- 
cient. Coffey  V.  Greenfield,  55  Cal.  382; 
Kimball  v.  Richardson-Kimball  Co.,  Ill 
Cal.  386;  43  Pac.  1111;  Dennis  v.  Kolm,  131 
Cal.  91;  63  Pac.  141.  If  one  has  any  inter- 
est in  the  subject-matter  of  the  litigation, 
or  in  the  success  of  some  of  the  parties,  he 
has  the  right  to  intervene  (Coffey  v.  Green- 
field, 55  Cal.  382;  Moran  v.  Bonvnge,  157 
Cal.  295;  107  Pac.  312);  but  the  interest 
must  be  direct,  in  the  subject-matter  of 
the  action  (Brooks  v.  Hager,  5  Cal.  281; 
Yuba  County  v.  Adams,  7  Cal.  35;  Davis 
V.  Eppiuger,  18  Cal.  378;  79  Am.  Dec.  184; 
Coburn  v.  Smart,  53  Cal.  742),  either  for 
or  against  one  of  the  parties,  or  ailversely 
to  both  (Stieh  v.  Dickinson,  38  Cal.  608; 
Moran  v.  Bonynge,  157  Cal.  295;  107  Pac. 
312);  and  it  must  be  of  such  immediate 
and  direct  character  that  he  will  either 
gain  or  lose  by  the  direct  legal  operation 
and  effect  of  the  judgment.  Horn  v.  Vol- 
cano Water  Co.,  13  Cal.  62;  73  Am.  Dec. 
569.  In  an  action  of  accounting  between 
partners,  the  firm  cretlitors  may  join  in 
an  intervention  to  share  in  a  fund  in  the 
hands  of  one  of  the  partners,  the  pro- 
ceeds of  a  fraudulent  sale  of  firm  property 
(Grossini  v.  Perazzo,  66  Cal.  545;  6  Pac. 
450);  but  an  attaching  creditor  of  an  in- 
dividual partner's  interest  in  the  partner- 
ship has  no  such  interest  in  proceedings 
to  wind  up  the  affairs  of  the  partnership 
as  entitle  him  to  intervene.  Isaacs  v. 
Jones,  121  Cal.  257;  53  Pac.  793,  1101.  A 
creditor,  by  garnishment,  may  intervene 
in  an  action  and  set  up  his  rights,  under 
this  section.  Dore  v.  Dougherty,  72  Cal. 
232;  1  Am.  St.  Rep.  48;  13  Pac.  621.  Exe- 
cution and  attachment  creditors  may  in- 
tervene to  defeat  the  lien  of  a  prior  at- 
tachment (Horn  V.  Volcano  Water  Co.,  13 
Cal.    62;    73    Am.   Dec.    569;    Davis    v.    Ep- 


idnger,  18  Cal.  378;  79  Am.  Dec.  184; 
Speyer  v.  Ihmels,  21  Cal.  280;  81  Am.  Dec. 
157;  McComb  v.  Reed,  28  Cal.  281;  87  Am. 
Dec.  115;  Coghill  v,  Marks,  29  Cal.  673; 
Coffey  V.  GretMifield,  55  Cal.  382);  as  also 
may  one  who  has  procured  a  garnishment. 
Kimball  v.  Richar<lson-Kimball  Co.,  lH 
Cal.  386;  43  Pac.  1111.  Where,  in  an  ac- 
tion, money  claimed  to  belong  to  the 
debtor  is  attached,  a  third  person,  claim- 
ing it,  may  intervene  (Dennis  v.  Kolm, 
131  Cal.  91;  63  Pac.  141);  as  also  may 
an  administrator,  who  claims  that  a  note 
and  mortgage,  sued  upon,  belong  to  the 
estate  of  his  decedent  (Stich  v.  Dickin- 
son, 38  Cal.  608) ;  and  also  the  assignee 
of  an  interest,  pendente  lite  (Lough- 
borough V.  McNevin,  74  Cal.  250;  5  Am. 
St.  Rep.  435;  14  Pac.  369;  15  Pac.  773); 
and  also  the  assignee  of  the  subject-matter, 
who  still  retains  an  interest  therein,  al- 
though the  assignment  is  general  (Grad- 
wohfv.  Harris,  29  Cal.  150);  and  also  the 
assignee  of  a  pledge.  Loughborough  v. 
McNevin,  74  Cal.  250;  5  Am.  St.  Rep. 
435;  14  Pac.  369;  15  Pac.  773.  The  claim- 
ant of  an  interest  in  a  fund  or  property 
held  in  trust,  sought  to  be  reached  by 
creditor's  bill,  which  is  founded  upon  an 
agreement  between  the  parties,  entered 
into  prior  to  the  execution  of  the  trust, 
and  which  was  to  have  been  included  in 
the  trust,  but  was  not,  may  intervene,  set 
up  facts,  and  have  the  trust  agreement 
reformed  so  as  to  protect  his  interests. 
Ward  V.  Waterman,  85  Cal.  488;  24  Pac. 
930.  The  judgment  creditors  of  a  dece- 
dent may  intervene  to  set  aside,  as  to 
them,  an  attachment  procured  on  a  debt 
not  yet  due  (Davis  v.  Eppinger,  18  Cal. 
378;  79  Am.  Dec.  184;  Speyer  v.  Ihmels, 
21  Cal.  280;  81  Am.  Dec.  157),  the  attach- 
ment of  a  debt  not  yet  due  being  void  as 
to  creditors  whose  interests  are  affected 
injuriously  thereby.  Davis  v.  Eppinger, 
IS  Cal.  378;  79  Am.  Dec.  184.  Judgment 
creditors  having  liens  may  intervene  as 
subsequent  debtors  in  a  foreclosure  suit 
against  a  common  debtor  (Horn  v.  Volcano 
Water  Co.,  13  Cal.  62;  73  Am.  Dec.  569); 
as  also  may  judgment  creditors  of  the 
same  class  with  the  plaintiff,  in  an  action 
by  creditor's  bill,  to  reach  unpaid  subscrip- 
tions to  the  stock  of  a  debtor  corporation. 
Baines  v.  West  Coast  Lumber  Co.,  104  Cal. 
1;  37  Pac.  767.  An  actual  settler  on 
swamp-lands  may  intervene  in  an  action 
to  determine  who  is  entitled  to  purchase; 
and  if  the  petition  does  not  show  the  right 
to  intervene,  the  court  may,  in  its  discre- 
tion, allow  the  intervener,  as  amicus  curia;, 
to  remain  in  the  case  for  the  purpose  of 
showing  that  neither  of  the  parties  is  en- 
titled to  purchase,  where  he  is  not  allowed 
to  take  anvthing  by  the  judgment.  McNee 
V.  Lynch,  "88  Cal.  519;  26  Pac.  508.  He 
may  intervene  before  judgment,  but  not 
afterwards.    Smith  v.  Roberts,  1  Cal.  App. 


§387 


PARTIES  TO   CIVIL   ACTIONS. 


260 


14S;  81  Pac.  102(1.  An  intervention  may 
be  had  in  an  action  to  foreclose  a  me- 
chanic's lien,  and  will  be  as  much  a  com- 
pliance with  law  as  the  institution  of  an 
original  suit  (Mars  v.  McKay,  14  Cal.  127; 
Sheldon  v.  Gunn,  56  Cal.  5S2) ;  and  a  mort- 
gagee holding  a  prior  mortgage  may  inter- 
vene in  such  an  action  (Walker  v.  Hauss- 
Hijo,  1  Cal.  1S3;  Van  Winkle  v.  Stow,  23 
Cal.  457) ;  as  also  may  mortgagee,  subse- 
quent to  a  mechanic's  lien  for  labor  done, 
if  he  makes  timely  application  (Hocker 
V.  Kelley,  14  Cal.  164) ;  but  material-men 
who  have  not  filed  liens  cannot  intervene. 
Walker  v.  Hauss-Hijo,  1  Cal.  1S3.  The 
statute  must  be  strictly  complied  with,  in 
order  to  give  rights  under  the  mechanic's 
lien  law.  Davis  v.  Livingston,  29  Cal.  2S3. 
In  an  action  to  determine  the  right  to  a 
mining  claim,  under  §  3226  of  the  United 
States  Revised  Statutes,  only  such  persons 
as  have  filed  claims  to  the  land  in  the 
United  States  land-office  may  intervene. 
Mont  Blanc  etc.  Mining  Co.  v.  Debour,  61 
Cal.  364.  Persons  having  an  interest  in 
property  involved  in  an  action  to  quiet 
title  mav  intervene  (Townsend  v.  Driver, 
5  Cal.  App.  581;  90  Pac.  1071);  but  a  third 
party  cannot  intervene  in  an  action  in 
ejectment  to  quiet  title  (Eosecrans  v.  Ells- 
v/orth,  52  Cal.  509),  by  alleging  title  ad- 
versely to  both  parties  (Porter  v.  Garris- 
sino.  51  Cal.  559) ;  nor  in  proceedings  to 
condemn  a  particular  riparian  right.  San 
.Joaquin  etc.  Irrigation  Co.  v.  Stevinson, 
164  Cal.  221;  128  Pac.  924.  An  insane  per^ 
son  may  intervene,  where  otherwise  quali- 
fied, but  he  can  appear  only  by  general 
guardian  or  guardian  ad  litem,  and  the 
court  has  authority  to  appoint  a  guardian 
ad  litem  in  intervention,  just  as  it  has  in 
other  cases.  Securitv  Loan  etc.  Co.  v, 
Kauffman,  108  Cal.  214;  41  Pac.  467;  Craw- 
ford V.  Neal,  56  Cal.  321.  The  sureties  of 
a  defendant  on  a  replevin  bond  may  in- 
tervene, as  they  will  be  affected  by  the 
judgment.  Coburn  v.  Smart,  53  Cal.  742; 
Brooks  V.  Hager,  5  Cal.  281.  Bondholders 
interested  in  the  success  of  a  defendant 
may  intervene,  but,  like  him,  they  cannot 
seek  anv  affirmative  relief.  Boskowitz  v. 
Thompson,  144  Cal.  724;  78  Pac.  290. 
Stockholders  may  intervene,  where  the 
corporation  refuses  to  answer,  or,  having 
properly  answered,  does  not  defend  in 
good  faith.  Wavmire  v.  San  Francisco  etc. 
Ey.  Co.,  112  CaL  646;  44  Pac.  1086.  Where 
a  debt  secured  by  mortgage  is  barred  by 
statute,  the  mortgage  is  also  barred;  and 
where  one  acquires  a  lien  on  the  property 
subsequently  to  the  mortgage,  he  may  in- 
tervene and  plead  the  statute,  to  the  ex- 
tent of  his  interest,  in  an  action  to  fore- 
close the  mortgage.  Coster  v.  Brown,  23 
Cal.  142;  Grattan  v.  Wiggins,  23  Cal.  16; 
Lord  V.  Morris,  IS  Cal.  482;  McCarthy  v. 
White,  21  Cal.  495;  82  Am.  Dec.  754;  Low 
V.   Allen,   26   Cal.   141;   Lent  v.   Shear,   26 


Cal.  361;  Wood  v.  Goodfellow,  43  Cal.  185. 
The  mortgagee,  when  entitled  to  imm.e- 
diate  possession  under  the  recorded  mort- 
gage, may  intervene  in  an  action  by  a 
third  person  to  recover  from  the  mortgagor 
the  specific  property;  and  the  fact  that 
the  plaintiff  takes  the  property,  and  gives 
the  statutory  bond,  does  not  defeat  the 
mortgagee's  right  to  intervene.  Martin  v. 
Thompson,  63  Cal.  3.  The  lien  of  a  mort- 
gage upon  a  growing  crop  is  not  lost  by 
severance  or  tortious  removal  by  a  third 
person.  Martin  v.  Thompson,  63  Cal.  3; 
W^ilson  v.  Prouty,  70  Cal.  196;  11  Pac.  608; 
Chittenden  v.  Pratt,  89  Cal.  178;  26  Pac. 
626.  A  mortgagee,  subsequent  to  the  one 
in  foreclosure  proceedings,  may  intervene 
to  show  that  the  mortgage  sought  to  be 
foreclosed  is  barred  by  the  statute.  Coster 
V.  Brown,  23  Cal.  142.  A  simple  contract 
creditor  of  a  common  debtor  cannot  inter- 
vene in  an  action  to  foreclose  a  mortgage 
executed  bv  such  common  debtor  (Horn 
v.  Volcano  "Water  Co.,  13  Cal.  62;  73  Am. 
Dec.  569) ;  nor  can  general  creditors  in- 
tervene, unless  they  have  acquired  some 
lien  upon  the  subject-matter  of  the  action. 
Davis  V.  Eppinger,  18  Cal.  378;  79  Am.  Dec. 
184;  Spever  v.  Ihmels,  21  Cal.  280;  81  Am. 
Dec.  157;  Coghill  v.  Marks,  29  Cal.  673. 
A  wife  may  intervene  in  an  action  to  fore- 
close a  mortgage  on  property  claimed  as  a 
homestead.  Sargent  v.  Wilson,  5  Cal.  504; 
Moss  V.  Warner,  10  Cal.  296;  Mabury  v. 
Ruiz,  58  Cal.  11;  Fitzsrerald  v.  Fernandez, 
71  Cal.  504;  12  Pac.  562;  Booth  v.  Hoskins, 
75  Cal.  271;  17  Pac.  225.  An  adminis- 
trator cannot  intervene  in  a  suit  brought 
to  determine  a  controversy  between  differ- 
ent heirs  as  to  their  respective  rights  of 
inheritance,  in  which  no  claim  is  m.ade 
against  the  estate  of  the  deceased  or 
against  the  adminif  trator,  or  against  his 
right  to  retain  possession  of  the  property 
during  the  administration  of  the  estate, 
or  against  the  application  of  any  prop- 
erty' in  his  hands  to  the  purpose  of  such 
administration.  Estate  of  Hcaly,  137  Cal. 
474;  70  Pac.  455;  Roach  \.  Coffey,  73  Cal. 
281;  14  Pac.  840;  Estate  of  Jessup,  80  Cal. 
625;  22  Pac.  260;  Goldtree  v.  Thompson, 
83  Cal.  420;  23  Pac.  383;  .Jones  v.  Lamont, 
118  Cal.  499;  62  Am.  St.  Rep.  251;  50  Pac. 
766.  When  the  complaint  in  intervention 
shows  the  intervener  to  be  the  real  party 
in  interest,  he  has  the  right  to  intervene. 
Robinson  v.  Crescent  City  Mill  etc.  Co.,  93 
Cal.  316;  28  Pac.  950. 

How  Intervention  is  made.  The  right 
to  intervene  is  jjurely  statutory,  and  the 
statute  prescribes  the  mode;  intervention 
is  made  by  complaint,  setting  forth  the 
grounds  upon  which  the  intervention  rests, 
filed  by  leave  of  the  court,  and  served 
upon  the  parties  to  the  action,  who  may 
answer  or  demur  as  if  it  were  an  original 
complaint.  Chase  v.  Evoy,  58  Cal.  348. 
Application  for  leave  to  intervene  may  be 


261 


INTERVENTION — WHEN  TAKES  PLACE — HOW   MADE. 


§387 


granted  ex  parte.  Spanagel  v.  Reay,  47 
Cal.  608;  People  v.  Pfeiffer,  59  Cal.  89; 
Kimball  v.  Richardsou-Kiniball  Co.,  Ill 
Cal.  o8(J;  43  Pac.  1111.  Where  the  inter- 
vener is  allowed  to  defend  in  the  name  of 
a  defendant  in  the  action,  no  harm  results 
to  him  from  an  erroneous  ori_ler.  Muller 
V,  Carey,  58  Cal.  538.  The  intervener  is 
to  be  regarded  as  a  plaintiff  or  as  a  defend- 
ant in  the  action,  unless  he  seeks  some- 
thing adversely  to  both,  according  as  is 
the  part}"  for  whose  success  he  seeks  to 
intervene,  and  is  limited  to  the  same  pro- 
cedure and  remedies  as  is  such  original 
party,  either  for  the  purpose  of  defeating 
the  action  or  of  resisting  the  claim  of  the 
plaintiff.  Boskowitz  v.  Thompson,  144  Cal. 
724;  78  Pac.  290.  The  complaint  must 
affirmatively  show  the  facts  which  entitle 
the  petitioner  to  intervene.  People  v.  Tal- 
mage,  6  Cal.  256.  Where  the  intervener 
joins  the  defendant  in  resisting  the  plain- 
tiff's claim,  the  complaint  in  intervention 
is,  in  effect,  an  answer  to  the  complaint 
of  the  plaintiff.  People  v.  Perris  Irriga- 
tion Dist.,  132  Cal.  289;  64  Pac.  399,  773; 
Henry  v.  Vinelaud  Irrigation  Dist.,  14U 
Cal.  376;  73  Pac.  1061.  The  rules  appli- 
cable to  pleadings  in  general  apply  witli 
equal  force  to  pleadings  in  intervention. 
Hadsall  v.  Case,  15  Cal.  App.  541;  115  Pac. 
330.  Intervention  is  treated  as  a  com- 
plaint, by  this  section,  to  which  either 
party  may  demur,  answer,  or  file  a  cross- 
complaint  (Wall  v.  Mines,  130  Cal.  27;  62 
Pac.  386);  and  the  plaintiff  must  meet  the 
issues  raised  by  the  complaint,  so  long  as 
he  seeks  relief  in  the  action.  Townsend 
V.  Driver,  5  Cal.  App.  581;  90  Pac.  1071. 
A  complaint  in  intervention,  to  recover  a 
share  of  commissions,  alleging  the  placing 
of  the  property  in  the  plaintiff's  hands,  to 
be  sold  upon  specified  terms  as  to  the  di- 
vision of  the  profits,  is  sufficient,  if  it  does 
not  allege  performance  (Gorliam  v.  Hei- 
man,  90  Cal.  346;  27  Pac.  289),  and  its  in- 
sufficiency must  be  objected  to  by  demur- 
rer, to  be  available  on  appeal  (Gorham  v. 
Heiman,  90  Cal.  346;  27  Pac.  289);  and 
an  objection  because  of  the  insufficiency 
of  the  complaint  or  the  want  of  right, 
must  be  made  at  the  time,  or  the  right  to 
object  will  be  considered  waived.  Mc- 
Kenty  v.  Gladwin,  10  Cal.  227;  Smith  v. 
Penny,  44  Cal.  161;  Bangs  v.  Dunn.  66  Cal. 
72;  4  Pac.  963;  People  v.  Eeiu.  76  Cal.  269; 
18  Pac.  309.  It  cannot  be  raised  for  the 
first  time  in  the  supreme  court.  People  v. 
Reis,  76  Cal.  269;  18  Pac.  309.  All  objec- 
tion thereto  is  waived  by  entering  into  a 
stipulation  with  the  intervener,  that  his 
claim  shall  be  determined  upon  certain 
facts.  Douner  v.  Palmer,  51  Cal.  629. 
Averments,  in  an  answer  to  a  complaint 
in  intervention,  must,  under  the  statute, 
be  considered  denied  by  the  intervener. 
(Pearson  v.  Creed,  78  Cal.  144;  20  Pac. 
302) ;    and   an   allegation,    in   a   complaint 


in  intervention,  that  the  partnership  pre- 
viously existing  between  the  i)]aintiff  and 
the  defendant  had  never  been  dissolved, 
is  deemed  to  be  denied  by  the  answer. 
Strong  V.  Stapp,  74  Cal.  280;  15  Pac.  835. 
A  failure  to  find  on  an  immaterial  issue 
is  not  error,  and  does  not  affect  the  judg- 
ment. Gorham  v.  Heiman,  90  Cal.  346;  27 
Pac.  289.  An  averment  in  the  complaint, 
not  denied,  need  not  be  found  (Gorham  v. 
Heiman,  90  Cal.  346;  27  Pac.  289;  Grossini 
V.  Perazzo,  66  Cal.  545;  6  Pac.  450);  and 
the  decision  thereon  cannot  be  controlled 
or  reviewed  by  mandamus.  People  v.  Sex- 
ton, 37  Cal.  532;  People  v.  Hubbard,  22 
Cal.  34;  People  v.  Pratt,  28  Cal.  166;  87 
Am.  Dec.  110;  People  v.  Weston,  2S  Cal. 
639.  The  order  dismissing  an  intervention 
should  state  precisely  the  grounds  relied' 
on.  Coffey  v.  Greenfield,  62  Cal.  602;  Kiler 
v.  Kimbal,  10  Cal.  267;  McGarrity  v.  By- 
ington,  12  Cal.  426;  People  v.  Banvanl, 
27  Cal.  470;  Sanchez  v.  Nearj',  41  Cal. 
485,  486;  Poehlniann  v.  Kennedy,  48  Cal. 
201;  Silva  v.  Holland,  74  Cal.  530:  16  Pac. 
385;  Miller  v.  Luco,  80  Cal.  257;'  22  Pac. 
195;  Belcher  v.  Murphy,  81  Cal.  39;  22 
Pac.  264;  Shain  v.  Forbes,  82  Cal.  577;  23 
Pac.  198;  Bronzan  v.  Drobaz,  93  Cal.  647; 
29  Pac.  254;  People  v.  Sansome,  98  Cal. 
235;  33  Pac.  202.  The  inaction  of  defend- 
ants in  permitting  their  default  does  not 
preclude  an  intervener  rrom  his  relief. 
Townsend  v.  Driver,  5  Cal.  App.  581;  90 
Pac.  1071.  An  order  of  the  court,  con- 
solidating cases  and  providing  for  inter- 
vention, although  irregular,  must  be  ex- 
cepted to.  Bangs  v.  Dunn,  66  Cal.  72;  4 
Pac.  963;  People  v.  Reis,  76  Cal.  269;  18 
Pac.  309. 

Intervention  must  be  before  trial.  In- 
tervention may  be  made  before  issue  is 
joined  (Brooks  v.  Hager,  5  Cal.  281;  Coburn 
v.  Smart,  53  Cal.  742),  or  afterwards,  at 
any  time  after  the  commencement  of  the 
action  (Ah  Goon  v.  Superior  Court,  61  Cal. 
555;  Robinson  v.  Crescent  City  Mill  etc. 
Co.,  93  Cal.  316;  28  Pac.  950;  Leouis  v. 
Biscailuz,  101  Cal.  330;  35  Pac.  875;  Hiber- 
nia  Sav.  &  L.  Soc.  v.  Churchill,  128  Cal. 
633;  79  Am.  St.  Rep.  73;  61  Pac.  278),  or 
before  the  trial,  if  the  complaint  therein 
raises  no  issues  other  than  those  raised  by 
the  answer  on  file.  Coburn  v.  Smart,  53 
Cal.  742.  It  may  be  had  even  after  the 
cause  is  called  for  trial,  but  before  it  is 
comm.enced  (Ah  Goon  v.  Superior  Court, 
61  Cal.  555),  but  it  cannot  be  allowed  after 
trial.  Johnson  v.  San  Francisco  Sav. 
Union,  63  Cal.  554.  Judgment  creditors 
may  intervene  at  any  time  before  judg- 
ment is  entered.  Speyer  v.  Ihmels,  21  Cal. 
280;  81  Am.  Dec.  157.  A  default,  by 
which  all  the  issues  tendered  by  the  com- 
plaint are  admitted  in  plaintiff's  favor,  is 
equivalent  to  a  trial,  and  shuts  out  in- 
tervention. Hibernia  Sav.  &  L.  Soc.  v. 
Churchill,   128   Cal.   633;    79   Am.    St.   Rep. 


§387 


PARTIES   TO   CIVIL  ACTIONS. 


262 


73;  61  Pac.  278.  After  final  judgment  and 
decree,  the  application  to  intervene  must 
be  denied.  Hooker  v.  Kelley,  14  Cal.  164; 
Laugenour  v.  Shanklin,  57  Cal.  70;  Carey 
V.  Brown,  58  Cal.  180;  Cunningham  v. 
Shanklin,  60  Cal.  118;  Owens  v.  Colgan, 
97  Cal.  454;  32  Pac.  519;  Leonis  v.  Bis- 
cailuz,  101  Cal.  330;  35  Pac.  875;  Baines 
V.  West  Coast  Lumber  Co.,  104  Cal.  1;  37 
Pac.  767.  There  is  no  authority  for  in- 
tervention, after  judgment,  and  while  the 
cause  is  pending  on  appeal;  a  stranger  to 
the  record  cannot  be  heard  on  appeal. 
Leonis  v.  Biscailuz,  101  Cal.  330;  35  Pac. 
875.  The  general  rule  is,  that  intervention 
cannot  be  allowed  after  final  judgment 
(Owens  v.  Colgan,  97  Cal.  454;  32  Pac.  519; 
Laugenour  v.  Shanklin,  57  Cal.  70;  Carey 
v.  Brown,  58  Cal.  180;  Baines  v.  West 
Coast  Lumber  Co.,  104  Cal.  1;  37  Pac.  767); 
but  where  the  plaintiff  attempts  to  sue  in 
behalf  of  others,  and  the  would-be  inter- 
vener is  interested  in  the  thing  recovered, 
the  rule  is  otherwise,  and  he  may  be  per- 
mitted to  intervene  after  judgment  and 
before  distribution,  so  as  to  receive  his 
share  (Carey  v.  Brown,  58  Cal.  180);  and 
where  the  cause  is  reversed,  and  remanded 
for  retrial,  intervention  may  be  had  (Leonis 
V.  Biscailuz,  101  Cal.  330;  35  Pac.  875), 
as  it  may,  also,  after  the  decision  in  a 
contest  of  the  right  to  purchase  public 
lands  (Laugenour  v.  Hennagin,  59  Cal. 
623;  Cunningham  v.  Shanklin,  60  Cal.  118), 
and  after  an  interlocutory  order  for  an 
accounting,  not  establishing  any  indebted- 
ness (Clarke  v.  Baird,  98  Cal.  642;  33  Pac. 
756) ;  but  not  after  an  interlocutory  de- 
cree in  partition,  fixing  the  respective  in- 
terests of  the  parties.  Leonis  v.  Biscailuz, 
101  Cal.  330;  35  Pac.  875. 

What  may  be  demanded.  Intervening 
creditors  cannot  raise  or  litigate  a  ques- 
tion as  to  the  validity  of  a  note  and  mort- 
gage as  between  the  original  parties:  all 
they  can  demand  is  a  judgment  protecting 
their  interests,  and  preventing  the  enforce- 
ment of  the  judgment  to  their  prejudice 
(Horn  V.  Volcano  Water  Co.,  13  Cal.  62; 
73  Am.  Dec.  569) ;  .nor,  in  an  action  brought 
by  an  assignee  to  foreclose  a  mortgage 
executed  by  a  husband,  can  the  wife,  in- 
tervening, question  the  validity  of  the 
assignment  of  the  mortgage,  nor  demur  to 
the  complaint  on  this  ground;  the  only 
question  that  can  be  considered  is  the 
homestead  character  of  the  property.  Ma- 
bury  V.  Euiz,  58  Cal.  11. 

Pleadings  and  proceedings.  Allegations 
in  a  complaint  in  intervention,  traversing 
the  complaint  of  the  plaintiff,  have  the 
same  effect  as  denials  in  an  answer  have, 
.  and  require  affirmative  proof  by  the  plain- 
tiff, to  entitle  him  to  judgment.  Spever  v. 
Ihmels,  21  Cal.  2S0;  81  Am.  Dec.  1.5'7.  A 
plaintiff,  against  whom  no  affirmative  re- 
lief is  sought,  may  dismiss  his  action  at 
any    time,   both   as   against   the   defendant 


and  the  intervener  (Henry  v.  Yineland 
Irrigation  Dist.,  140  Cal.  376;  73  Pac. 
1061) ;  and  an  intervener,  against  whom  no 
relief  is  sought,  may  dismiss  his  complaint 
of  intervention  at  any  time,  and  abandon 
the  contest  (Sheldon  v.  Gunn,  56  Cal.  582); 
and  the  court  may  set  aside  an  order,  made 
ex  parte,  allovring  the  complaint  in  inter- 
vention to  be  filed,  and  dismiss  the  com- 
plaint. People  v.  Pfeiffer,  59  Cal.  89. 
Where  the  intervener  claims  an  interest 
in  the  subject-matter  of  the  action,  ad- 
verse to  both  parties,  and  the  complaint  in 
intervention  is  answered  by  the  plaintiff, 
and  material  issues  are  raised,  the  nonsuit 
of  the  plaintiff,  on  motion  of  the  defend- 
ant, does  not  affect  the  intervener,  and  the 
issues  raised  by  the  complaint  in  inter- 
vention and  the  answer  thereto  remain. 
Poehlmann  v.  Kennedy,  48  Cal.  201.  The 
plaintiff  has  a  right  to  an  appeal  where 
intervention  is  granted  in  a  justice's  court, 
and  to  have  the  superior  court  pass  upon 
the  sufficiency  of  his  demurrer  to  the  com- 
plaint, without  any  statement  of  the  case. 
Eossi  V.  Superior  Court,  114  Cal.  371;  46 
Pac.  177;  Southern  Pacific  E.  E.  Co.  v. 
Superior  Court,  59  Cal.  471.  Where  the 
complaint  in  intervention  is  not  properly 
set  out  in  the  record,  the  supreme  court 
will  presume  that  the  demurrer  thereto 
was  properly  overruled.  Kimball  v.  Eich- 
ardson-Kimball  Co.,  Ill  Cal.  386;  43  Pac. 
1111.  A  judgment  in  favor  of  the  inter- 
vener, against  the  defendant,  will  not  be 
reversed  upon  appeal  of  the  plaintiff, 
where  he  is  not  aggrieved  therebv.  People 
V.  Eeis,  76  Cal.  269;  18  Pac.  309.  Where 
the  defendant  and  the  intervener  prose- 
cute separate  appeals  from  a  judgment  in 
favor  of  the  plaintiff,  and  from  an  order 
denying  a  new  trial,  the  afiirmance  of  the 
judgment  and  order  on  the  appeal  of  the 
defendant  does  not  operate  to  oust  the 
authority  of  the  supreme  court  to  reverse 
it  afterwards,  on  the  appeal  by  the  inter- 
vener. Donner  v.  Palmer,  45  Cal.  180. 
Formerly,  an  order  denying  a  motion  to 
intervene  was  not  appealable  (Wenborn  v. 
Boston,  23  Cal.  321);  but  now  an  appeal 
may  be  taken  from  an  order  sustaining  an 
objection  to  the  right  to  intervene.  Stich 
V.  Dickinson,  38  Cal.  608.  The  sureties  on 
a  replevin  bond  are  entitled  to  intervene; 
and  where  their  motion  for  leave  to  inter- 
vene is  denied,  they  may  immediately  pros- 
ecute an  appeal.  Coburn  v.  Smart,  53  Cal. 
742;  People  v.  Grant,  45  Cal.  97.  Where 
permission  has  been  given  to  intervene,  the 
intervener  may  appeal  from  the  judgment, 
although  no  judgment  was  rendered  against 
him.  People  v.  Perris  Irrigation  District, 
132  Cal.  2S9;  64  Pac.  399,  773. 

Who  may  become  interveners.  See  note  15  Am. 
Deo.   162. 

Origin  and  nature  of  intervention.  See  note  16 
Am.  Dec.  177. 

Intervention.     See   note   12^   Am.   St.   Rep.   280. 

Right  of  contract  creditors  to  intervene  In 
equity.    S^'e  notf  :;  i\nn.  Cas.  1091. 


263 


ASSOCIATES  MAY  BE  SUED  BY   NAME  OF  ASSOCIATION. 


§388 


Bight  of  claimant  of  attached  property  to  in- 
tervene. See  notes  18  Ann.  Cas.  594;  23  Ij.  K.  .V. 
(N.  «.)   536. 

Right  of  adverse  claimant  to  intervene  in  action 
for  partition.    See  nolo  20  Ann.  Ciis.  82. 

Right  of  surety  to  intervene  in  an  action 
against  principal  or  principal  in  action  against 
surety.     Soe  note   G8  h.   R.   A.   736. 

CODE  COMMISSIONERS'  NOTE.  1.  Interven- 
tion may  take  place  either  before  or  after  issue 
joined.  A  party  has  the  right  to  intervene  in 
an  action  in  case  of  the  transfer  of  any  interest 
during  the  pendency  thereof,  or  wiien  he  is 
directly  interested  in  the  sub.iect-raatter  in  liti- 
gation, and  this  can  be  done  either  before  or 
after  issue  lias  been  joined  in  the  case.  Brooics 
V.  Hager,  5  Cal.  281. 

2.  What  interest  is  necessary  to  entitle  party 
to  intervene.  Before  a  parly  may  intervene  in 
an  action  between  tliird  parties,  lie  must  have 
such  nil  interest  in  the  matter  in  litigation  of 
such  a  direct  and  immediate  character  that  the 
intervener  will  either  gain  or  lose  by  the  direct 
legal  operation  and  effect  of  the  judgment.  It 
must  be  an  interest  created  by  a  claim  to  the 
demand,  or  some  part  thereof,  in  suit  or  a  claim 
to  or  lien  upon  the  property,  or  some  part  there- 
of, wliich  is  the  subject  of  litigation.  Horn  v. 
Volcano  Water  Co.,  13  Cal.  62;  73  Am.  Dec. 
569;    see  also  Montgomery  v.  Tutt,    11   Cal.   307. 

3.  Assignor  of  a  claim  retaining  an  interest 
therein  may  intervene  in  an  action  by  assignee 
thereon.  If  a  party  assigns  a  claim  absolutely, 
retaining,  however,  an  interest  in  it,  he  may  in- 
tervene to  protect  his  interest  in  an  action  brought 
by  the  assignee  to  collect  the  same,  and  if  he 
does  not  intervene,  he  is  bound  by  tlie  judgment. 
Gradwohl  v.   Harris,   29   Cal.   150. 

4.  Who  may  intervene  in  foreclosure  suit.  A 
simple  cojitract  creditor  cannot  intervene  in  a 
foreclosure  suit.  But  judgment  creditors,  being, 
as  such,  subsequent  encumbrancers,  may  inter- 
vene; and  a  court  may  order  them  to  be  made 
parties  by  an  amendment  of  the  complaint,  or  on 
petition  of  intervention.  Horn  v.  Volcano  Water 
Co.,  13  Cal.  62;  73  Am.  Dec.  569. 

5.  When  co-tenants  cannot  intervene  in  action 
by  one  of  the  tenants  in  common.  Where  one 
tenant  in  common  sues  to  recover  possession  of 
the  premises,  and  the  damages  sustained  by  the 
ouster,  his  co-tenants  cannot  intervene.  Donner 
V.  Palmer,  23  Cal.  40. 

6.  Sut sequent  mortgagee  no  right  of  interven- 
tion in  action  to  enforce  lien.  A  mortgagor  of 
a  ditch,  subsequent  to  the  lien,  has  no  absolute 
right  to  intervene  in  an  action  to  enforce  the 
mechanic's  lien  on  the  ditch.  And  when  the  suit 
has  been  pending  some  time,  and  the  application 
to  intervene  was  made  just  as  plaintiff  was  tak- 
ing judgment,  the  application  was  too  late,  and 
therefore  properly  refused.  Hocker  v.  Kellev,  14 
Cal.  164. 

7.  Eight  to  intervene  in  a  suit  where  property 
is  attached.  If  the  first  attachment  was  fraudu- 
lently obtained,  and  the  debtor  has  not  sufficient 
property  to  pay  both  claims,  a  subsequent  at- 
taching creditor,  who  has  his  attachment  levied 
on  the  property  previously  levied  on  by  a  prior 
attaching  creditor,  may  intervene  in  the  action 
betvi-een  the  first  attaching  creditor  and  the  de- 
fendant.   Coghill  V.   :Marks,   29  Cal.   673. 

8.  Intervention  by  judgment  creditors  In  at- 
tachment suits.  Judgment  creditors  can  inter- 
vene in  an  attachment  suit,  and  have  the  attach- 
ment set  aside,  because  as  to  them  it  was  void. 
Davis  V.  Eppinger,  18  Cal.  378;  79  Am.  Dec.  184. 

9.  Intervention  by  subsequent  attaching  cred- 
itors in  attachment  suit.  Where  an  attachment 
has  lieen  levied  upon  the  property  of  a  defend- 
ant in  an  action  to  recover  money,  a  subsequent 
attaching  creditor  may  intervene,  any  time  before 
judgme:it  is  entered,  and  dispute  the  validity  of 
the  first  attachment.  Speyer  v.  Ihmels,  21  Cal. 
280,  81  Am.  Dec.  157,  sustaining  Davis  v.  Ep- 
pinger, 18  Cal.  378,  79  Am.  Dec.  184,  and  Horn 
v.  Volcano  Water  Co.,  13  Cal.  62;  73  Am.  Dec. 
569.      In  a   case  like   this,  before   the  passage  of 


this  provision  of  the  code,  and  as  doubtless  may 
still  be  done,  the  proceedings  would  have  been 
by  a  separate  action,  in  the  nature  of  a  bill  in 
chancery,  as  in  the  case  of  Heyneman  v.  Dan- 
nenberg,  6  Cal.  376,  65  Am.  Dec.  519;  or  by  a 
motion  to  the  court,  as  in  Dixey  v.  Pollock,  8 
Cal.  570;  Spever  v.  Ihmels,  21  Cal.  280;  81 
Am.  Dec.  157. 

10.  Owner  of  lien  subsequent  to  mortgage  may 
Intervene  and  plead  statute  of  limitations  as  to 
mortgage.  If  an  acti(jn  is  brought  to  foreclose 
a  mortgage  barred  by  statute  of  limitations,  one 
who  has  purcJiased  or  acquired  a  lien  on  the 
property  subsequent  to  the  mortgage  has  a  right 
to  intervene  and  plead  the  statute  of  limitations. 
Coster  V.  Brown,  23  Cal.  142. 

11.  Intervention  by  creditors  in  an  action  on  a 
fraudulent  note  and  mortgage.  In  an  action  on 
a  note  and  morigage,  when'  creditors  of  the  de- 
fendant intervened,  alleging  the  note  and  mort- 
gage to  be  fraudulent  as  against  them,  the  in- 
terveners cannot  prevent  a  judgment  for  plaintiff 
against  defendant.  The  most  they  can  claim  is 
protection  against  the  enforcement  of  the  judg- 
ment to  their  prejudice.  Horn  v.  Volcano  Water 
Co.,  13  Cal.  62  ;  73  Am.  Dec.  569. 

When  defendant  alone  can  object.  If  the 
proceedings  between  the  debtor  and  a  prior  cred- 
itor are  not  void,  but  voidable,  the  defendant  can 
alone  object.    Di.\ey  v.  Pollock,   8  Cal.  570. 

12.  Wife  may  intervene  In  action  to  foreclose 
mortgage  on  homestead.  The  wife  is  a  proper 
party  defendant  in  a  suit  to  foreclose  a  mortgage 
executed  ujjon  premises  claimed  as  a  homestead. 
If  not  made  such  a  party,  she  may  intervene,  or, 
by  permission  of  the  court,  be  allowed  to  file  a 
separate  answer.  Moss  v.  Warner.  10  Cal.  297; 
.Sargent  v.  Wilson,  5  Cal.  504.  See  also  Dillon 
v.  Byrne,  5  Cal.  456. 

13.  Intervention  by  county  to  recover  tax  on 
property  which  is  the  subject  of  an  action.  A 
had  property  deposited  with  B,  which  was  taxed 
by  the  county,  and  payment  demanded  of  both 
A  and  B,  and  it  was  held  that  in  an  action  con- 
cerning the  money,  the  county  might  intervene 
so  as  to  recover  the  tax.  Yuba  County  v.  Adams, 
7  Cal.  37. 

14.  Intervention  of  same  effect  as  commencing 
an  original  action.  In  an  action  to  foreclose  a 
mechanic's  lien,  the  interveners  having  filed  their 
intervention  and  become  parties  to  the  suit  within 
the  prescribed  time  and  during  the  existence  of 
the  lien,  the  effect  of  their  position  is  precisely 
the  same  as  if  they  had  commenced  an  original 
action.     Mars  v.  McKay,  14  Cal.  129. 

15.  Petition  of  intervener  treated  as  a  dec- 
laration or  complaint.  See  People  v.  Talmage,  6 
Cal.  258. 

16.  Onus  probandi  as  to  action  between  plain- 
tiff and  interveners.  "Where  a  subsequent  at- 
taching creditor  intervenes  in  an  action  for  the 
purpose  of  setting  aside  an  attachment  issued 
therein,  on  the  ground  that  there  is  no  debt  due 
from  the  defendant  to  the  plaintiff,  the  allega- 
tions in  the  pleading  on  the  part  of  the  inter- 
vener, traversing  the  complaint,  have  the  same 
effect  as  denials  in  an  answer,  and  require  af- 
firmative proof  by  the  plaintiff  of  his  cause  of 
action,  in  default  of  which  the  intervener  will 
have  judgment,  in  his  favor."  Spever  v.  Ihmels, 
21  Cal.  280  (syllabus)  ;  81  Am.  Dec. "157. 

17.  Objection  to  intervention  in  trial  below 
cannot  be  made  on  appeal.  An  objection  cannot 
be  made  on  appeal  for  the  first  time  that  certain 
persons  could  not  intervene  in  an  action  prose- 
cuted in  an  inferior  court.  McKenty  v.  Gladwin, 
10  Cal.  227. 

18.  Decision  of  lower  court  as  to  right  of  par- 
ties to  intervene  cannot  be  reviewed  on  man- 
damus. A  motion  for  leave  to  intervene  in  an 
action,  made  at  any  stage  of  the  proceedings, 
presents  a  judicial  question,  the  decision  of  which 
cannot  be  reviewed  or  controlled  by  the  supreme 
court  by  mandamus,  however  erroneous  it  may  be. 
People  v.   Sexton.  37   Cal.  532. 

Generally.  See  Dutil  v.  Pacheco,  21  Cal.  441 ; 
82  Am.  Dec.  749. 


§  388.     Associates  may  be  sued  by  name  of  association.     When  two  or 
more  persons,  associated  in  any  business,  transact  such  business  under  a 


§388 


PARTIES  TO   CIVIL   ACTIONS. 


264 


common  name,  whether  it  comprises  the  names  of  such  persons  or  not,  the 
associates  may  be  sued  by  such  common  name,  the  summons  in  such  cases 
being  served  on  one  or  more  of  the  associates;  and  the  judgment  in  the 
action  shall  bind  the  joint  property  of  all  the  associates,  and  the  individual 
property  of  the  party  or  parties  served  with  process,  in  the  same  manner 
as  if  all  had  been  named  defendants  and  had  been  sued  upon  their  joint 
liability. 


Partners  under  fictitious  name  must  file  certifi- 
cate.   See  Civ.  Code,  §§  2466  et  seq. 

Legislation  §  388.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  656  (Stats.  1854,  Red- 
ding ed.  p.  72,  Kerr  ed.  p.  102,  §  68),  reading 
as  at  present  down  to  the  words  "more  of  the 
associates."  the  section  then  proceeding,  "but 
the  judgment  in  such  case  shall  bind  only  the 
joint  property  of  the  associates."  When  en- 
acted in  1872,'  the  section  read  the  same  as  now, 
except  for  the  clause,  "and  the  individual  prop- 
ertv  of  the  partv  or  parties  served  with  process." 

2,  Amendment  by  Stats.  1901,  p.  127;  un- 
constitutional.    See   note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  704;  the  code 
commissioner  saying,  "The  words  'and  the  in- 
dividual property  of  the  party  or  parties  served 
with  process'  h.ave  been  added,  thus  avoiding 
multiplicity  of  suits." 

Parties  associated  in  business.  Two  or 
more  persons,  transacting  business  under  a 
common  name,  may  be  sued  under  such 
common  name  (Hearst  v.  Egglestone,  55 
Cal.  365;  Harrison  v.  McCormick,  69  Cal. 
616;  11  Pac.  456;  Goodlett  v.  St.  Elmo  In- 
vestment Co.,  94  Cal.  297;  29  Pac.  505); 
but  the  plaintiff  is  not  bound  to  sue  them 
bv  their  common  name.  Harrison  v.  Mc- 
Cormick, 69  Cal.  616;  11  Pac.  456.  Where 
it  is  allesed  in  the  complaint  that  the  de- 
fendant is  a  copartnership,  but  no  attempt 
is  made  to  allege  who  comjirise  it,  the  ac- 
tion is  one  under  this  section.  .John  Boll- 
man  Co.  V.  S.  Bachman  &  Co.,  16  Cal.  App. 
589,  590;  117  Pac.  690.  Many  exceptions 
exist  to  the  general  rule,  that,  in  equity, 
all  must  be  parties  who  have  an  interest 
in  the  object  of  the  suit;  but  all  persons 
in  being,  capable  of  appearing,  who  are 
interested,  must  be  brought  into  court. 
Los  Angeles  County  v.  Winans,  13  Cal. 
App.  234;  109  Pac.  640.  Before  the  amend- 
ment of  the  Practice  Act,  in  a  case  where 
the  plaintiff  sued  H.  &  Co.  under  their 
common  name,  alleging  that  other  persons 
composing  the  firm  were  unknown  to  him, 
and  on  the  trial  was  unable  to  prove  that 
there  was  any  person  or  persons  associated 
with  n.,  it  was  held  that  the  words  "& 
Co."  might  be  stricken  out  and  the  cause 
proceed  against  H.  alone.  Mulliken  v. 
Hull,  r)  Cal.  245.  Plaintiff  may  .join  as  de- 
fendants all  claiming  title  adversely  from 
a  common  source,  whether  they  are  a  vol- 
untary association,  copartners,  or  individ- 
uals. Senior  v.  Anderson,  115  Cal.  496;  47 
Pac.  454.  A  judgment  not  appealed  from 
cannot  be  modified.  .John  Bollman  Co.  v. 
S.  Bachman  i:  Co.,  16  Cal.  App.  589;  117 
Pac.  690. 

Common  name.  The  action  must  be 
against  the  parties  in   the   association,   in 


the  name  in  which  they  transact  their 
business.  liing  v.  Randlett,  33  Cal.  318. 
Persons  who  have  been  carrj'ing  on  busi- 
ness under  a  common  name  may  be  sued  in 
such  name.  San  Francisco  Sulphur  Co.  v. 
.^tna  Indemnity  Co.,  11  Cal.  App.  695;  106 
Pac.  111.  A\  here  a  party  seeks  the  ad- 
vantages secured  to  him  by  this  section, 
he  ought  to  show  substantially,  in  his  com- 
plaint, that  the  conditions  stated  therein 
exist  in  his  case.  Welsh  v.  Kirkpatriek,  30 
Cal.  202;  89  Am.  Dec.  85;  Maclay  Co.  v. 
Meads,  14  Cal.  App.  363;  112  Pac.  195;  113 
Pac.  364.  The  benefit  fund  of  an  unincor- 
porated society  belongs  absolutely  to  the 
beneficiaries,  when  named;  and  an  action 
cannot  be  maintained,  under  this  section, 
by  personal  representatives.  Swift  v.  San 
Francisco  Stock  etc.  Board,  67  Cal.  567;  8 
Pac.  94;  Hoeft  v.  Supreme  Lodge,  113  Cal. 
91;  33  L.  R.  A.  174;  45  Pac.  185.  Ac- 
tions against  partnerships  may  be  brought 
against  the  individual  partners,  or  against 
the  firm  name  under  which  the  partnership 
transacts  business.  Harrison  v.  McCormick, 
69  Cal.  016;  11  Pac.  456.  A  copartnership 
sued  in  its  common  name,  under  this  section, 
as  it  stood  prior  to  its  amendment  in  1907, 
was  regarded  as  a  distinct  entity.  John 
Bollman  Co.  v.  S.  Bachman  &  Co.,  16  Cal. 
App.  589;  117  Pac.  690.  Where  associates 
are  not  sued  in  their  common  name,  but  in 
their  individual  names,  this  section  does 
not  apply.  Feder  v.  Epstein,  69  Cal.  456; 
10  Pac.  785;  Davidson  v.  Knox,  67  Cal. 
143;  7  Pac.  413.  A  suit  against  a  copart- 
nership, in  its  common  name,  is  not  a  suit 
against  the  individuals  comprising  the 
copartnership.  John  Bollman  Co.  v.  S. 
Bachman  &  Co.,  16  Cal.  App.  589;  117  Pac. 
690.  Where  the  members  of  a  firm  are 
described  as  defendants  in  the  caption  of 
the  complaint,  but  in  the  body  thereof  as 
defendant,  in  the  singular  number,  a  de- 
murrer for  ambiguity  should  be  sustained, 
and  a  judgment  based  thereon  must  be 
reversed.  Hawlev  Bros.  Hardware  Co.  v. 
Brownstone,  123'  Cal.  643;  56  Pac.  468. 
The  action  must  be  brought  against  all 
members  of  the  partnership;  where  brought 
against  the  individuals,  this  section  does 
not  applv.  Harrison  v.  McCormick,  69  Cal. 
616;  11  Pac.  456;  Oilman  v.  Cosgrove,  22 
Cal.  356;  Cotes  v.  Campbell,  3  Cal.  191; 
Morrison  v.  Bradley,  5  Cal.  503;  Farmer 
v.  Cram,  7  Cal.  135.  A  dormant  partner 
need  not  be  joined  as  a  party  defendant, 
because   he   stands   in   the   relation   of   an 


265 


COURT  DETERMINES   CONTROVERSY    WHEN — PARTIES    BROUGHT    IN. 


§389 


undisclosed  principal.  Toinlinson  v.  Spen- 
cer, 5  Cal.  291.  The  association  designated 
by  the  common  name  is  the  only  proper 
party  defendant,  under  this  section;  ami 
the  only  judgment  authorized  thereumler, 
prior  to  the  amendment  of  .1907,  was  a 
judgment  binding  the  joint  property  of  the 
associates.  John  Bollman  Co.  v.  S.  Bach- 
man  &  Co.,  16  Cal.  App.  589;  117  Pae.  690. 
An  action  by  an  association,  in  the  com- 
mon name,  is  not  within  tliis  section;  the 
names  of  the  i)artners  should  be  given. 
Gilman  v.  Cosgrove,  22  Cal.  356;  Harrison 
V.  McCormick,  69  Cal.  616;   11  Pac.  456. 

Judgment  binds  joint  property.  Under 
this  section,  there  can  Le  no  judgment 
against  the  separate  property  of  any  asso- 
ciate or  partner,  not  served  or  made  a 
party;  the  judgment  is  a  lien  only  upon  the 
individual  interests  of  those  served.  Da- 
vidson V.  Knox,  67  Cal.  143;  7  Pac.  413; 
Feder  v.  Epstein,  69  Cal.  456;  10  Pac.  785; 
Golden  State  etc.  Iron  Works  v.  David- 
son, 73  Cal.  389;  15  Pac.  20.  Judgment 
for  or  against  one  or  more  of  several  de- 
fendants, under  §§578,  579,  post,  is  author- 
ized only  under  the  rules  established  by 
the  code  or  the  general  principles  of  law 
(McDonald  v.  Porsh,  136  Cal.  302;  68  Pac. 
817),  and  a  sale  under  it  transfers  only 
the  individual  interest  of  the  partners 
made  parties.  Golden  Gate  etc.  Iron  Works 
V.  Davidson,  73  Cal.  389;  15  Pac.  20; 
Davidson  v.  Knox,  67  Cal.  143;  7  Pac.  413. 
Where  an  association  of  persons,  transact- 
ing business  under  a  common  name,  con- 
tracts a  debt,  secured  by  a  mortgage  of 
one  or  more  of  the  associates,  or  of  a  third 
person,    the    mortgagee,    in    his    action    to 


foreclose,  may  proceed  against  the  associa- 
tion, under  this  section,  for  the  purjiose  of 
olit;uning  a  deficiency  judgment  binding 
only  the  joint  projierty  of  the  associates. 
Gooillett  V.  St.  Elmo  Investment  Co.,  94 
Cal.  297;  29  Pac.  505.  The  joint  property 
of  all  the  defendants  may  be  l)0und  by  the 
service  of  summons  upon  one  or  more  of 
a  larger  number  of  associates.  Los  An- 
geles County  V,  Winans,  13  Cal.  App.  234; 
109  Pac.  640.  Service  on  one  partner,  in 
an  action  against  the  copartnership,  binds 
the  firm  property;  but  it  will  not,  where 
the  action  is  against  the  partners  as  in- 
dividuals. Maelay  Co.  v.  Meads,  14  Cal. 
App.  363;  112  Pac.  195. 

Right  of  unincorporated  association  to  sue  in 
association  name  in  absence  of  permissive  statute. 
See  note  6  Am.  St.  Rep.   833. 

CODE  COMMISSIONERS'  NOTE.  This  is  sub- 
stantially §  656  of  the  Practice  Act,  inserted 
here  as  the  appropriate  place  for  it. 

1.  Action  may  be  brought  against  a  defend- 
ant, but  not  for  a  plaintiff,  in  firm  name.  De- 
fendants may  be  sued  in  firm  name,  but  an  action 
cannot  be  brought  by  plaintiffs  in  firm  name. 
Oilman   v.   Cosgrove,   22   Cal.   357. 

2.  Plaintifif  cannot  sue  in  the  name  of  the 
firm.  A  complaint  should  set  forth  the  names  of 
the  individuals  composing  the  firm  as  plaintiffs, 
if  the  action  is  intended  to  be  in  behalf  of  the 
individuals  composing  such  firm.  Gilman  v.  Cos- 
grove, 22  Cal.  357. 

3.  Complaint  in  an  action  against  a  company 
by  its  company  name.  If  the  complaint  does  not 
show  the  existence  of  the  conditions  provided  for 
in  this  section,  and  a  judgment  is  rendered  by 
default,  it  is  a  debatable  question  whether  or 
not  the  judgment  is  void.  But  if  the  conditions, 
as  required  by  this  section,  appear  in  the  com- 
plaint, and  the  summons  was  served  on  one  of  the 
members  of  the  company,  and  judgment  is  had 
by  default  against  the  company,  the  judgment 
may  be  enforced  against  the  joint  property  of 
the  company.  Welsh  v.  Kirkpatrick,  30  Cal.  202; 
89  Am.  Dec.  85. 


§  389.     Court,  when  to  decide  controversy  or  to  order  other  parties  to  be 

brought  in.  The  court  may  determine  any  controversy  between  parties  be- 
fore it,  when  it  can  be  done  without  prejudice  to  the  rights  of  others,  or  by 
saving  their  rights;  but  when  a  complete  determination  of  the  controversy 
cannot  be  had  without  the  presence  of  other  parties,  the  court  must  then 
order  them  to  be  brought  in,  and  to  that  end  may  order  amended  and  sup- 
plemental pleadings,  or  a  cross-complaint  to  be  filed,  and  summons  thereon 
to  be  issued  and  served.  And  when,  in  an  action  for  the  recovery  of  real 
or  personal  property,  or  to  determine  conflicting  claims  thereto,  a  person, 
not  a  party  to  the  action, .but  having  an  interest  in  the  subject  thereof,  makes 
application  to  the  court  to  be  made  a  party,  it  may  order  him  to  be  brought 
in,  by  the  proper  amendment. 


Joining  landlord.  Ante,  §  379;  Civ.  Code, 
§  1949. 

Party,  adding  and  striking  out  name  of.  Ante, 
§  473. 

Legislation  §  389.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  17  (New  York  Code, 
§  122),  which  read  same  as  §  389  now  reads, 
down  to  the  words  "presence  of  other  parties," 
thereafter  reading  and  ending  "the  court  shall 
order  them  to  be  brought   in." 

3.  Amended  by  Stats.  1897.  p.  9,  to  read  as 
at  present,  but  not  containing  the  clause,  "or  to 
determine   conflicting   claims   thereto." 

3.  Amendment  by  Stats.  1901,  p.  127;  un- 
constitutional.    See   note   ante,  §  5. 


4.  Amended  by  Stats.  1907,  p.  704;  the  code 
commissioner  saying,  "The  words  'or  to  deter- 
mine conflicting  claims  thereto'  have  been  added, 
thus  authorizing  the  bringing  in  of  new  parties 
in  actions  to  determine  conflicting  claims  of  real 
or  personal  property,  and  thus  avoiding  multi- 
plicity of  actions." 

Construction  of  section.  This  section  is 
applicable  to  proceedings  for  the  revoca- 
tion of  the  probate  of  a  will;  it  does  not 
apply  merely  to  parties  who  were  not 
named  in  the  first  instance.  San  Francisco 
Protestant     Orphan     Asylum    v.     Superior 


§389 


PARTIES   TO   CIVIL  ACTIONS. 


266 


Court,  116  Cal.  443;  48  Pae.  379.  The 
right  to  have  new  parties  brought  in  under 
this  section  still  exists,  and  this  may  be 
done  -whenever  the  court  finds  it  necessary 
for  a  proper  determination  of  the  contro- 
versv  before  it.  Merchants'  Trust  Co.  v. 
Bentel,  10  Cal.  App.  75;  101  Pac.  31. 

Saving  rights  of  others.  The  right  to 
bring  in  new  parties  is  to  be  exercised 
when  the  court  finds  them  necessary  for 
the  proper  determination  of  the  contro- 
versy before  it;  but  this  right  is  subject 
to  its  power  to  determine  the  controversy 
before  it,  without  bringing  in  new  parties, 
when  it  can  be  done  without  prejudice  to 
the  rights  of  others,  or  by  a  saving  of  their 
rights.  O'Connor  v.  Irvine,  74  Cal.  43.5;  16 
Pac.  236;  Alison  v.  Goldtree,  1J7  Cal.  545; 
49  Pac.  571;  Merchants'  Trust  Co.  v.  Ben- 
tei.  10  Cal.  App.  75;  101  Pac.  31.  A  stock- 
holder is  a  proper  party  defendant,  and 
should  be  permitted  to  be  made  such,  upon 
proper  application,  where  it  is  alleged  that 
the  corporation  will  not  defend  in  good 
faith.  Wavmire  v.  San  Francisco  etc.  Ry. 
Co.,  112  Cal.  646;  44  Pac.  1086. 

When  new  parties  may  be  brought  in. 
Where  other  jiersons  are  interested  in  the 
subject-matter,  witliout  whose  ]iresence  the 
controversy  cannot  be  fully  determined, 
the  court  should  order  them  brought  in 
(Settembre  v.  Putnam,  30  Cal.  490:  Gates 
V.  Lane,  44  Cal.  392;  Robinson  v.  Gleason, 
53  Cal.  38;  Harrison  v.  McCormick,  69 
Cal.  616;  11  Pac.  456;  O'Connor  v.  Irvine, 
74  Cal.  435;  16  Pac.  236;  Tregear  v.  Eti- 
wanda  Water  Co.,  76  Cal.  537;  9  Am.  St. 
Rep.  245;  18  Pac.  658;  Winter  v.  McMillan, 
87  Cal.  256;  22  Am.  St.  Rep.  243;  25  Pac. 
407;  Cuyamaca  Granite  Co.  v.  Pacific  Pav- 
ing Co.,  95  Cal.  252;  30  Pac.  525) ;  although 
the  parties  to  the  action  have  not  objected 
to  such  defect  of  parties;  and  the  failure 
of  the  court  to  order  such  necessary  par- 
ties to  be  brought  in,  is  fatal  to  the  judg- 
ment (O'Connor  v.  Irvine,  74  Cal.  43.5;  16 
Pac.  236;  Settembre  v.  Putnam,  30  Cal.  490, 
498;  Gates  v.  Lane,  44  Cal.  392;  Winter  v. 
McMillan,  87  Cal.  256;  22  Am.  St.  Rep.  243; 
25  Pac.  407;  Alison  v.  Goldtree,  117  Cal. 
545;  49  Pac.  571;  Mitau  v.  Roddan,  149  Cal. 
1 ;  6  L.  R.  A.  (N.  S.)  275;  84  Pac.  145) ;  but 
this  section  does  not  authorize  the  court 
to  bring  into  the  action,  for  determination, 
a  controversy  between  one  of  the  parties 
and  a  stranger,  which  is  irrelevant  to  the 
action  between  the  parties  before  it.  Al- 
pers  V.  Bliss,  145  Cal.  565;  79  Pac.  171. 
Persons  receiving  an  interest  pendente  lite 
must  be  brought  in,  when  their  presence 
is  necessary  to  a  full  determination  of  the 
controversy.  Ashton  v.  Heggerty,  130  Cal. 
516;  62  Pac.  934;  Treasurer  v.  Commercial 
Coal  Mining  Co.,  23  Cal.  390;  Ralston  v. 
Bank  of  California,  112  Cal.  208;  44  Pac. 
476.  It  is  the  policy  of  the  law,  and  the 
peculiar  province  of  a  court  of  equity,  to 
have  a  complete  determination  of  a  con- 
troversy before  the  court,  when  it  can  be 


done;  but  when  this  cannot  be  done  with- 
out the  presence  of  other  parties,  they  may 
be  brought  in,  under  the  provisions  of  this 
section  (Newhall  v.  Bank  of  Livermore, 
136  Cal.  533;  69  Pac.  248;  Boskov/itz  v. 
Thompson,  144  Cal.  724;  78  Pac.  290; 
Churchill  v.  Woodworth,  148  Cal.  609;  113 
Am..  St.  Rep.  324;  84  Pac.  155);  but  the 
attention  of  the  court  must  be  called  to 
the  defect,  in  some  manner.  Syvertson  v. 
Butler,  3  Cal.  App.  345;  85  Pac.  164. 
Where  the  contest  can  be  settled  without 
affecting  the  rights  of  others,  there  is  no 
ground  or  reason  for  bringing  in  other  par- 
ties; such  procedure  is  not  required  by 
this  section  (Lvtle  Creek  Water  Co.  v. 
Perdew,  65  Cal.  447;  4  Pac.  426;  Mer- 
chants' Trust  Co.  V.  Bentel,  10  Cal.  App. 
75;  101  Pac.  31);  nor  can  the  court  order 
other  parties  to  be  brought  in,  when,  on 
the  coming  in  of  the  answer,  it  is  of  the 
opinion  that  they  are  not  necessary  to  a 
full  determination  of  the  controversy. 
Hughson  v.  Crane.  115  Cal.  404;  47  Pac. 
120;  Syvertson  v.  Butler,  3  Cal.  App.  345; 
85  Pac.  164.  A  plaintiff,  not  knowing 
which  one  of  two  defendants  is  liable  for 
a  wrongful  act,  cannot  implead  them  to- 
gether, and  ask  the  court  to  fix  the  liabil- 
ity, without  stating  a  cause  of  action 
against  either.  Hannon  v.  Nuevo  Land 
Co.,  14  Cal.  App.  700;  112  Pac.  1103.  In 
a  controversy  involving  the  obligation  of 
three  defendants  to  pay  the  balance  due 
on  a  promissory  note,  the  question  of  con- 
tribution among  the  co-guarantors  is  tiot 
necessary  to  its  determination.  Merchants' 
Trust  Co.  V.  Bentel,  10  Cal.  App.  75;  101 
Pac.  31.  Though  a  defendant,  after  an- 
swer, is  adjudicated  a  bankrupt,  this  does 
not  affect  the  foreclosure  of  a  mechanic's 
lien  against  his  property,  by  the  plaintiff, 
nor  require  that  the  trustee  in  bankruptcy 
shall  be  made  a  party  to  the  action.  Krit- 
zer  V.  Tracy  Engineering  Co.,  16  Cal.  App. 
287;  116  Pac.  700. 

Issuance  of  alias  summons.  See  note 
post,  §  40S. 

Parties  necessary  to  a  complete  deter- 
mination. A  subsequent  vendee  is  a  neces- 
sary party  to  an  action  to  quiet  title,  and 
should  be  brought  in.  Birch  v.  Cooper,  136 
Cal.  636;  69  Pac.  420.  A  person  claiming 
an  interest  in*  the  controversy  is  entitled 
to  come  in  and  defend  such  interest.  Wil- 
son V.  Baker,  64  Cal.  475;  2  Pac.  253.  The 
beneficiary  is  a  necessary  party  in  an  ac- 
tion to  declare  a  trust  and  compel  the  per- 
formance of  it,  where  the  trustee  claims 
to  own  the  property  in  his  own  right,  to 
the  exclusion  of  the  beneficiary.  O'Connor 
V.  Irvine,  74  Cal.  435;  16  Pac.  236.  The 
beneficiary  in  possession,  for  whose  benefit 
the  plaintiff  holds  the  legal  title,  is  a 
proper  party,  and  may  be  brought  in  by 
cross-complaint.  Winter  v.  McMillan,  87 
Cal.  256;  22  Am.  St.  Rep.  243;  25  Pac.  407. 
In  an  action  to  restrain  the  collection  of 
an  excessive  assessment  for  interest  on  the 


267 


SUPPLEMENTAL    PLEAUINGS — WAIVER   OF   OBJECTION. 


§389 


bonds  of  an  irrigation  district,  broufjht 
agaiiist  the  eolleetor,  neither  the  irrigation 
district,  its  agent  for  the  sale  of  the  bonds, 
nor  the  holder  of  illegal  bonds,  is  a  neces- 
sary party,  and  should  not  be  brought  in. 
Hughson  V.  Crane,  115  Cal.  404;  47  Pac. 
120.  In  an  action  on  a  joint  contract,  all 
the  parties  thereto  must  be  brought  in. 
Harrison  v.  McCormiek,  69  Cal.  616;  11 
Pac.  456;  Gates  v.  Lane,  44  Cal.  392; 
Cuyamaca  (Jraiiite  Co.  v.  Pacific  Paving 
Co.,  95  Cal.  252;  30  Pac.  525.  In  an  action 
to  foreclose  a  mortgage  upon  an  undivided 
interest,  a  prior  mortgagee  of  the  whole 
estate  is  a  projier  party  defendant,  and, 
by  cross-com'idaint,  he  may  bring  in  the 
owners  of  the  other  undivided  interests 
and  the  subsequent  mortgagee,  and  ask  the 
foreclosure  of  his  mortgage.  Newhall  v. 
Bank  of  Livermore,  136  Cal.  533;  69  Pac. 
248.  Where  a  third  party  hobls  two  mort- 
gages, one  on  the  land  in  litigation  and 
the  other  on  another  parcel,  he  may  set 
up  both  mortgages  ami  have  them  fore- 
closed. Stockton  Sav.  &  L.  Soe.  v.  Harrold, 
127  Cal.  612;  60  Pac.  165;  and  see  Brill  v. 
Shively,  93  Cal.  674;  29  Pac.  324;  Newhall 
V.  Bank  of  Livermore,  136  Cal.  533;  69 
Pac.  248.  In  an  action  to  compel  a  cor- 
jioration  to  transfer  stock,  sold  under  fore- 
closure of  a  mortgage  thereon,  the  mort- 
gagor is  not  a  necessary  party,  and  need 
not  be  brought  in.  Tregear  v.  Etiwanda 
Water  Co..  76  Cal.  537;  9  Am.  St.  Rep.  245; 
18  Pac.  658.  A  motion  to  vacate  a  pre- 
vious order,  sustaining  a  demurrer  to  the 
cross-complaint  of  the  defendant,  made 
p^fter  some  of  the  defendants  have  an- 
swered, should  be  entertained,  where  no 
final  judgment  has  been  entered  in  favor 
of  such  defendants.  De  la  Beekwith  v. 
Superior  Court,  146  Cal.  496;  80  Pac.  717. 
In  a  partnership  accounting,  the  assignee 
of  a  partner  is  a  necessary  party,  and 
should  be  brought  in.  Cuvamaca  Granite 
Co.  V.  Pacific  Paving  Co.,  "95  Cal.  252;  30 
Pac.  525.  A  purchaser,  after  issue  joined, 
is  properly  ordered  in  as  a  party  defend- 
ant, so  that  the  whole  controversy  may  be 
determined.  Robinson  v.  Gleason,  53  Cal. 
38.  Different  persons,  using  the  waters  of 
a  stream,  under  separate  appropriations, 
are  tenants  in  common,  and  any  one  may 
maintain  a  suit  to  enjoin  trespass  and 
diversion  of  water  without  joining  the 
others,  and  the  failure  to  bring  them  in  is 
not  error.  Lvtle  Creek  Water  Co.  v.  Per- 
dew.  65  Cal.  447;  4  Pac.  426. 

Supplemental  pleadings.  Where  facts 
occur  subsequently  to  the  filing  of  a  plead- 
ing, and  which  change  the  liability  of  the 
defendant,  and  a  third  party  becomes  in- 
terested, and  a  necessary  party  by  reason 
thereof,  as  by  the  marriage  of  a  female 
defendant,  or  by  the  purchase  of  an  in- 
terest jiendente  lite,  such  party  should  be 
brought  in  by  supplemental  pleadings.  Van 
Maren  v.  Johnson,  15  Cal.  308;  McMinn 
V.   O'Connor,   27   Cal.   238;   Moss  v.   Shear, 


30  Cal.  467.  But  simply  ordering  parties 
brought  in,  or  inserting  necessary  facts  in 
the  pleadings  and  their  names  as  parties, 
does  not  give  the  court  jurisdiction  over 
them;  as  to  them,  it  is  a  new  action;  their 
names  must  be  inserted  in  the  summons, 
and  process  served  on  them,  the  same  as 
in  an  original  suit,  unless  they  voluntarily 
appear.  Pico  v.  Webster,  14  Cal.  202;  73 
Am.  Dec.  047;  Powers  v.  Braly,  75  Cal. 
237;  17  Pac.  197. 

Cross-complaint.  Necessary  parties  may 
be  brought  in  by  way  of  cross-complaint. 
Winter  v.  McMillan,  87  Cal.  256;  22  Am. 
St.  Rep.  243;  25  Pac.  407;  Eureka  v.  Gates, 
120  Cal.  54;  52  Pac.  125;  Lewis  v.  Fox,  122 
Cal.  244;  54  Pac.  823.  Leave  to  file  a 
cross-complaint,  bringing  in  new  parties, 
made  ex  parte,  may  be  vacated  without 
notice,  by  the  judge  who  made  it.  Alpers 
V.  Bliss,  145  Cal.  565;  79  Pac.  171.  New 
issues  cannot  be  set  up  by  cross-complaint, 
nor  can  new  parties  be  brought  in  to  set 
up  an  issue  not  involved  in  the  original 
action.  East  Riverside  Irrigation  Dist.  v. 
Holcomb,  126  Cal.  315;  58  Pac.  817.  The 
general  rule  is,  that  a  plaintiff  may  select 
the  parties  defendant,  and  that  new  par- 
ties, brought  in  against  his  will,  cannot  be 
allowed  to  set  up  against  him  new  de- 
fenses and  atfirmative  causes  of  action 
which  the  original  defendant  could  not  set 
up,  especially  where  the  granting  of  the 
relief  sought  by  the  complaint  could  not 
prejudice  the  new  matters  and  causes  of 
action  sought  to  be  adjudicated.  East 
Riverside  Irrigation  Dist.  v.  Holcomb,  126 
Cal.  315;  58  Pac.  817. 

Alias  summons.  Where  parties  are 
brought  in  by  order  of  the  court,  or  by 
stipulation  of  the  parties,  there  may  be 
service  of  an  alias  summons  by  publica- 
tion. Bank  of  Venice  v.  Hutchinson,  19 
Cal.  App.  219;  125  Pac.  252. 

Waiver  of  objection.  An  objection  that 
one  interested  in  the  litigation  should 
have  been  made  a  partj'  is  waived,  unless 
presented  bv  demurrer  or  answer.  Bell  v. 
Solomons,  142  Cal.  59;  75  Pac.  649. 

Amendment  of  pleading  by  changing  character 
in  which  defendant  is  sued  as  bringing  in  new 
parties.    See  iiotf,   10  Ann.  Cas.   150. 

CODE  COMMISSIONERS'  NOTE.  1.  Applica- 
tion and  construction  of  section.  See  Brooks  v. 
Hager,  5  Cal.  281;  see  note  1  to  §385,  ante; 
and  note  1  to  §  oS7,  ante. 

2.  Clause  additional  to  the  section  as  it  stood 
before  the  adoption  of  the  Code  of  Civil  Procedure. 
Tlie  last  sentence,  commencing,  "And  when,  in  an 
action  for  the  recovery  of  real  or  personal  prop- 
erty," etc.,   is   a   new  provision. 

3.  All  rights  determined  in  one  action.  A 
court  of  e(|uity  will  not  permit  litigation  by 
piecemeal.  Hie  whole  subject-matter,  and  nil 
the  parties,  should  be  before  it,  and  tlieir  re- 
spective claims  determined  once  and  forever. 
AVilson  V.  Lassen,  5  Cal.  116.  The  rights  of  all 
should  be  adjusted,  and  nothing  left  open  for 
future  litigation,  if  it  can  be  helped.  Ord  v. 
McKee,  5  Cal.  516. 

4.  Order  to  bring  in  other  parties.  Where  it 
turns  out,  upon  the  trial,  that  a  complete  de- 
termination of  the  controversy  cannot  be  had 
without  the  presence  of  other  parties,  the  court 
should,    of    its    own    motion,    order    them    to    be 


§390 


PARTIES  TO   CIVIL  ACTIONS. 


268 


brought  in  before  a  final  disposition   of   the  case. 
Settembre  v.   Putnam.   30  Cal.   497. 

5  Court  may  bring  in  other  parties,  without 
waiting  for  demurrer.  The  omission  of  the  ae- 
f.-ndant  to  demur  for  want  of  parties,  does  not 
affect  the  power  of  the  court,  under  this  section 
of  the  code,  from  directing  other  parties  to  be 
Irousht  in,  if  it  finds  that  it  cannot  completely 
determine  the  case  in  their  absence.  Grain  v. 
Aldrich,  38  Cal.  514:  99  Am.  Dec.  423.  But  the 
right  of  demurrer  was  given  to  enable  the  court 
to  bring  in  necessarv  parties.  Warner  v.  Steam- 
ship  Uncle   Sam,   9   Cal.   097. 

6.  What  may  be  tried  in  partition.  Any  ques- 
tion affecting  the  right  of  the  plaintiff  to  a  parti- 
tion, or  the  rights  of  each  and  all  of  the  parties 
in  the  land,  may  be  put  in  issue,  tried,  and  de- 
termined in  such  action.  De  Uprey  v.  De  Uprey, 
27  Cal.  330;  87  Am.  Dec.  81. 

7.  Parties  to  suit  for  partition.  A  married 
woman,  whose  husband  is  sued  in  partition,  is  a 
necessary  party,  if  she  claims  a  homestead  right 
to  or  an  interest  in  the  property  in  dispute.  De 
Uprev  V.  De  Uprey,  27  Cal.  329;  87  Am.  Dec. 
81. 

8.  Disclaimer  in  partition.  In  an  action  of 
partition,  a  defendant  cannot  claim  that  the  ac- 
tion be  dismissed  as  to  him,  on  the  ground  that 
his  answer  disclaims  any  interest  in  the  land, 
unless    he    has    made    the    disclaimer    in    absolute 

§  390.  Actions  against  fire  departments.  Causes  of  action  upon  contract, 
or  for  damages  arising  out  of,  or  pertaining  or  incident  to  the  official  ad- 
ministration of  the  fire  departments  created  by  acts  of  the  legislature  of 
this  state,  shall  be  brought  directly  by  and  against  the  municipality  by  its 
corporate  name  wherein  the  damage  was  sustained.  And  the  said  boards 
of  fire  commissioners  shall  not  be  sued  as  such,  except  to  compel  or  restrain 
the  performance  of  acts  proper  to  be  compelled  or  restrained  under  and  not 
within  the  discretion  intended  to  be  conferred  by  this  act. 

Legislation  §  390.      1.  Added  by  Stats.  1885,  3.   Repeal  by  Stats.  1901,  p.  128;  unconstitn- 

p.  92.  tional.    See  note  ante,  §  5. 


and  unconditional  terms.    De  Uprey  v.  De  Uprey, 
27  Cal.  329;  87  Am.  Dec.  81. 

9.  Wife  must  be  brought  in,  in  action  to  fore- 
close mortgage  on  homestead.  In  an  action  to 
foreclose  a  mortgage  against  a  husband,  where 
the  defendant  sets  up  the  right  of  homestead,  the 
court  should  order  the  wife  of  defendant  to  be 
brought  in  as  a  party,  as  no  decision  upon  tha 
question  of  homestead  can  be  conclusive,  either 
upon  the  husband  or  the  wife,  unless  both  are 
parties.    Marks  v.  ]\Iarsh,  9  Cal.  96. 

10.  Even  accommodation  grantees  and  ficti- 
tious depositaries  of  title  may  be  brought  in. 
Although  some  of  the  parties  may  be  mere  ac- 
commodation grantees  and  fictitious  depositaries 
of  title,  still  they  have  a  rieht  to  be  heard  at 
law  in  their  own  defense,  before  courts  of  chan- 
cery can  pronounce  definitely  on  their  claims. 
Knowles  v.  Inches,   12   Cal.   213. 

11.  Who  are  unnecessary  parties,  and  need  not 
be  brought  in.     See  Peralta  v.  Simon,  5  Cal.  313. 

12.  If  persons  are  not  made  parties,  they  are 
unaffected  by  judgment.  Persons  not  parties  to 
a  suit  in  ejectment,  and  in  possession  before  and 
at  the  time  it  is  brought,  or  tliose  claiming 
under  them,  cannot  be  ousted  by  the  writ  of  res- 
titution issued  upon  a  judgment  therein,  in  favor 
of  the  plaintiff.  See  also,  for  other  particulars, 
Sampson  v.  Ohleyer,  22  Cal.  200. 


269      CERTAIN    ACTIONS    TO    BE    TKIED    WnERE   THE   SUBJECT    IS   SITUATED.       §  392 


TITLE  IV. 
PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


§  392.  Certain  actions  to  be  tried  where  the  sub- 
ject or  some  p.art  thereof  is  situated. 

§  393.  Other  actions,  where  the  cause  or  some 
part  thereof  arose. 

§  394.     Place  of  trial  of  actions  against  counties. 

§  395.  Actions  to  be  tried  in  county  in  whiih  de- 
fendant resides,  etc.  If  defendant  does 
not  reside  in  state. 

§  396.     Action  may  be  tried  in  any  county,  unless 


the    defendant    demand    a   trial    in    the 

proper  county. 
§  397.    Place  of  trial  may  be  changed  in  certain 

cases. 
§  398.    When   judge   is   disqualified,    cause   to   be 

transferred. 
§  399.    Papers     to     be     transmitted.      Costs,    etc. 

.Tiirisdiction,  etc. 
§  400.     Proceedings     after     judgment     in     certain 

cases  transferred. 


§  392.  Certain  actions  to  be  tried  where  the  subject  or  some  part  thereof 
is  situated.  Actions  for  the  following  causes  must  be  tried  in  the  connty 
in  which  the  subject  of  the  action,  or  some  part  thereof,  is  situated,  subject 
to  the  power  of  the  court  to  change  the  place  of  trial,  as  provided  in  this 
code : 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest  therein, 
or  for  the  determination  in  any  form,  of  such  right  or  interest,  and  for  in- 
juries to  real  property; 

2.  For  partition  of  real  property; 

3.  For  the  foreclosures  of  all  liens  and  mortgages  on  real  property. 
Where  the  real  property  is  situated  partly  in  one  county  and  j)aitly  in 

another,  the  plaintiff  may  select  either  of  the  counties,  and  the  county  so 
selected  is  the  proper  county  for  the  trial  of  such  action 


Riot.  Actions  for  damages  caused  by,  must  be 
tried  in  county  in  which  property  injured  is  situ- 
ated.   Pol.  Code,  §  4453. 

Legislation  §  392.  1.  Enacted  March  11,  18T3; 
based  on  Practice  Act,  §  18,  as  amended  by 
Stats.  1861,  p.  494,  which  (1)  had  the  word 
"shaU"  instead  of  "must,"  and  the  word  "act" 
instead  of  "code,"  in  the  first  paragraph,  (2) 
in  subd.  2,  had  the  word  "the"  before  "parti- 
tion," (3)  subd.  3  ended  with  the  words  "real 
property,"  and  (4)  section  ended  with  the  para- 
graph, "Provided,  that  where  such  real  property 
is  situate  partly  in  one  county  and  partly  in  an- 
other, the  plaintiff  may  select  either  of  said 
counties,  and  the  county  so  selected  shall  be 
the  proper  county  for  the  trial  of  any,  or  all,  of 
such  actions  as  are  mentioned  in  the  first,  second, 
and  third,  subdivisions  of  this  section."  When 
enacted  in  1872,  the  proviso  paragraph  was 
changed  to  read:  "Vv'here  the  real  property  is 
situated  partly  in  one  county  and  partly  in  an- 
other, the  plaintiff  may  select  either  of  the 
counties,  and  the  county  so  selected  is  the  proper 
county   for   the   trial   of  such   action." 

3.  Amended  by  Code  Amdts.  1875-76,  p_. 
90,  and  in  subd.  3  the  words  "a  mortgage  of" 
changed  to   "all   liens   and   mortgages   on." 

3.  Amended  by  Stats.  18S9.  p.  3.52,  (1) 
'omitting,  in  subd.  2.  the  word  "the"  before  "par- 
tition," and  (2)  adding,  at  end  of  subd.  3,  after 
v/ords  "such  action,"  the  iiroviso,  "provided, 
that  in  the  case  mentioned  in  this  subdivision, 
if  the  plaintiff  prays  in  his  complaint  for  an  in- 
junction pending  the  action,  or  applies  pending 
the  action  for  an  injunction,  the  proper  county 
for  the  trial  shall  be  the  county  in  which  the 
defendant  resides  or  a  majority  of  the  defend- 
ants reside  at  the  commencement  of  the  action." 

4.  Amendment  by  Stats.  1901,  p.  128;  un- 
constitutional.    See   note   ante.  §  5. 

5.  Amended  by  Stats.  1907,  p.  700;  the  code 
commissioner  saying,  "The  former  provision  at 
the  end  of  the  section,  that  if  in  an  action  to 
recover  real  property  an  injunction  is  at  any 
time  applied  for,  the  proper  county  for  the  trial 
is  that  in  which  the  defendant  resides,  is  omitted. 


The  old  provision  is  inconsistent  with  §  5  of  arti- 
cle vi  of  the  constitution,  requiring  actions  of 
this  character  to  be  brought  in  the  county  in 
which     the    property,     or    some    part    thereof,    is 

situated." 

County  where  the  subject  of  the  action 
is  situated.  This  section  is  a  limitation  of 
the  general  jurisdiction  of  the  superior 
court,  and  is  to  be  strictly  construed;  it 
goes  no  further  than  to  prohibit  the  com- 
mencement of  certain  enumerated  actions 
affecting  real  property,  in  counties  other 
than  those  in  which  the  land  is  situated. 
Miller  &  Lux  v.  Kern  County  Laud  Co.,  140 
Cal.  132;  73  Pac.  836;  Wood  v.  Thompson, 
5_  Cal.  App.  247;  90  Pac.  38.  As  this  sec- 
tion declares  an  exception  to  the  general 
rule,  the  conditions  under  which  the  ex- 
ception is  claimed  must  be  clearly  and  dis- 
tinctly shown.  Smith  v.  Smith,  88  dxl.  572; 
26  Pac.  3.56;  Bradv  v.  Times-Mirror  Co., 
106  Cal.  56;  39  Pac"  209.  It  is  only  where 
real  estate  alone  is  the  subject-matter  of 
the  suit  that  the  provisions  of  this  section 
can  be  invoked  against  the  defendant. 
Smith  V.  Smith,  88  Cal.  572;  26  Pac.  356; 
Anaheim  Odd  Fellows'  Hall  Ass'n  v. 
Mitchell,  6  Cal.  App.  431;  92  Pac.  531.  An 
action  for  the  determination,  in  any  form, 
of  a  right  of  interest  in  real  estate,  is 
triable  in  the  county  in  which  the  prop- 
erty is  situated.  Franklin  v.  Button,  79 
Cal.  605;  21  Pac.  964.  The  word  "action" 
does  not  include  "special  jtroceedings"; 
and  as  originally  enacted,  §§  392  to  395 
referred   only   to   "actions"   as   defined   by 


§392 


PLACE  OF  TKIAL  OF  CIVIL  ACTIONS. 


270 


§  22,  ante,  and  not  to  "special  proceedings" 
as  defined  by  the  sections  following  §  22. 
Santa  Kosa  "v.  Fountain  Water  Co.,  133 
Gal.  579;  71  Pac.  1123,  1136;  Lake  Pleas- 
anton  Water  Co.  v.  Contra  Costa  Water 
Co.  67  Cal.  659;  8  Pac.  501;  Aliso  Water 
Co.'  V.  Baker,  95  Cal.  268;  30  Pac.  537; 
Siskivou   County  v.  Gamlich,   110   Cal.   94; 

42  Pac.  468;  Southern  Pacific  R.  R.  Co.  v. 
Southern  California  Ry.  Co.,  Ill  Cal.  221; 

43  Pac.  602;  San  Francisco  etc.  Ry.  Co.  v. 
Gould,  122  Cal.  601;  55  Pac.  411;  Alameda 
County  V.  Crocker,  125  Cal.  101;  57  Pac. 
766.  The  nature  of  an  action  is  deter- 
mined by  the  nature  of  the  relief  that  can 
be  granted  in  it.  Robinson  v.  Williams,  12 
Cal.  App.  515;  107  Pac.  705.  Actions  are 
deemed  transitory,  where  the  transactions 
upon  which  they  are  founded  may  occur 
anywhere;  local,  where  their  cause  is  in 
its  nature  essentially  local.  Ophir  Silver 
Mining  Co.  v.  Superior  Court,  147  Cal.  467; 
3  Ann.  Cas.  340;  82  Pac.  70.  The  pro- 
vision as  to  the  place  where  the  action 
shall  be  tried  does  not  affect  the  jurisdic- 
tion of  the  court  (Herd  v.  Tuohy,  133  Cal. 
55;  65  Pac.  139;  Grocers'  Fruit  etc.  Union 
V.  Kern  County  Land  Co.,  150  Cal.  466; 
89  Pac.  120),  but  is  a  matter  of  legislative 
regulation.  Security  Loan  etc.  Co.  v, 
KauflTman,  108  Cal'  214;  41  Pac.  467. 
There  is  a'  distinction  between  the  juris- 
diction of  courts,  and  the  right  to  have 
the  action  tried  in  the  county  of  defend- 
ants' residence:  the  court  may  have  juris- 
diction, and  still  the  defendant  may  be  en- 
titled to  have  the  place  of  trial  changed. 
State  V.  Campbell,  3  Cal.  App.  602;  86  Pac. 
840.  Each  of  the  defendants  has  a  right 
to  the  trial  of  the  cause  in  the  county 
in  which  the  land  is  situated  (O'Neil  v. 
O'Xeil,  54  Cal.  187),  but  there  is  no  re- 
quirement that  actions  for  injury  to  real 
property  shall  be  commenced  in  that 
county.  Miller  &  Lux  v.  Madera  Canal 
etc.  Co.,  1.55  Cal.  59;  22  L.  R.  A.  (N.  S.) 
391;  99  Pac.  502.  The  proper  place  for 
the  trial  of  an  action  for  injury  to  real 
property  is  in  the  county  where  such  prop- 
erty is  situated  (Miller  &  Lux  v.  Kern 
County  Land  Co.,  6  Cal.  Unrep.  684;  65 
Pac.  312),  where  a  change  of  the  place  of 
trial  may  be  ordered  for  special  reasons. 
Oj)hir  Silver  Mining  Co.  v.  Superior  Court, 
147  Cal.  467;  3  Ann.  Cas.  340;  82  Pac.  70. 
Where  an  action  against  a  corporation  for 
injury  to  real  estate  is  brought  in  the 
county  where  it  has  its  principal  place  of 
business,  which  is  not  that  where  the  land 
is  situated,  the  defendant  cannot  demand, 
as  a  matter  of  right,  and  without  any 
nhowing  of  grounds,  that  the  place  of  trial 
be  changed.  Miller  &  Lux  v.  Kern  County 
Land  Co.,  134  Cal.  586;  66  Pac.  856.  See 
also  Miller  &  Lux  v.  Kern  County  Land 
Co.,  140  Cal.  132;  73  Pac.  836.  An  action 
to  enforce  a  trust  in  land  should  be  tried 
in  the  county  where  the  land  is  situated, 
though    an   incidental    accounting   is    also 


asked  for.  Hannah  v.  Canty,  1  Cal.  App. 
225;  81  Pac.  1035.  An  action  for  the  de- 
struction of  the  plaintiff's  buildings  by  fire, 
caused  by  negligence,  must  be  tried  in  the 
county  where  the  land  is  situated  (Las 
Animas  etc.  Land  Co.  v.  Fat  jo,  9  Cal.  App. 
318;  99  Pac.  393),  as  must  also  an  action 
to  cancel  a  contract  for  the  purchase  of 
land.  Robinson  v.  Williams,  12  Cal.  App. 
515;  107  Pac.  705.  lu  an  action  to  recover 
real  property,  the  complaint  need  not  state 
the  residence  of  the  parties:  the  location 
of  the  land  determines  the  venue.  Doll 
V.  Feller,  16  Cal.  432.  An  action  to  quiet 
title  to  land  must  be  brought  in  the  county 
where  the  land  is  situated  (Fritts  v.  Camp, 
94  Cal.  393;  29  Pac.  867;  Pacific  Yacht 
Club  V.  Sausalito  Bay  W^ater  Co.,  98  Cal. 
487;  33  Pac.  322);  as  must  also  an  action 
brought  on  a  trust  deed  (Staacke  v.  Bell, 
125  Cal.  309;  57  Pac.  1012;  More  v.  Su- 
perior Court,  64  Cal.  345;  28  Pac.  117; 
Le  Breton  v.  Superior  Court,  66  Cal.  27; 
4  Pac.  777) ;  and  an  action  to  reform  a 
contract  of  sale  of  land  (Franklin  v.  But- 
ton, 79  Cal.  605;  21  Pac.  964);  and  an 
action  to  set  aside  a  fraudulent  sale  of 
land  by  an  administrator,  and  to  annul  the 
order  of  sale.  Sloss  v.  De  Toro,  77  Cal. 
129;  19  Pac.  233.  Domestic  corporations, 
as  well  as  natural  persons,  have  the  right 
to  have  real  or  quasi-real  actions  tried  in 
the  county  in  which  the  land  is  situated. 
Cook  v.  Ray  Mfg.  Co.,  159  Cal.  694;  115 
Pac.  318.  An  action  for  the  specific  per- 
formance of  a  contract  for  the  sale  of  land 
may  be  commenced  in  the  county  of  the 
principal  place  of  business  of  a  corporation 
defendant,  but  the  corporation  has  the 
right  to  have  the  place  of  trial  changed  to 
the  county  where  the  land  is  situated. 
Grocers'  Fruit  Growing  Union  v.  Kern 
County  Land  Co.,  150  Cal.  466;  89  Pac.  120. 
The  court  assumed,  in  an  action  to  set 
aside  conveyances  of  land,  release  of  in- 
terest therein,  and  certain  assignments  of 
mortgages,  that  such  action  w^as  a  real 
action,  and  wdthin  the  provisions  of  this 
section.  Kimball  v.  Tripp,  136  Cal.  631; 
69  Pac.  428.  An  action  to  cancel  a  de- 
ficiency judgment,  improperly  rendered  in 
another  county,  in  a  foreclosure  suit,  upon 
ex  parte  application,  after  the  right  thereto 
had  been  lost  by  the  decree,  and  a  levy 
thereunder  made,  upon  lands  in  another 
county,  seems  to  have  been  properly 
brought  in  the  county  in  which  the  lands 
levied  upon  are  situated.  Herd  v.  Tuohv, 
133  Cal.  55;  65  Pac.  139.  Though  an  ac- 
tion has  been  properly  commenced  under 
this  section,  yet  the  court  is  bound  by  the 
mandatory  terms  of  §  394,  post,  concerning 
a  transfer  of  the  action.  Yuba  County  v. 
North  America  etc.  Mining  Co.,  12  Cal. 
App.  223;  107  Pac.  139. 

"Or  some  part  thereof  is  situated."  An 
action  for  the  partition  of  distinct  parcels 
of  land,  situated  in  different  counties,  may 
be   brought    in    any   county   in    which   any 


271 


VENUE  OF  ACTIONS — POWER  OP  COURT — REAL   PROPERTY. 


§392 


portion  of  the  Land  is  situated;  tlie  term 
"real  property"  is  used  in  the  code,  and 
the  term  "real  estate"  is  used  in  the  con- 
stitution, and  either  term,  in  its  popular 
as  well  as  in  its  legal  acceptation,  is  broad 
enough  to  include  several  distinct  parcels 
of  land,  as  well  as  one  entire  tract. 
Murphy  v.  Superior  Court,  138  Cal.  69;  70 
Pac.  1070.  An  action  must  be  wholly  local 
in  its  nature,  under  this  section,  to  entitle 
it  to  be  tried  in  a  county  other  than  that 
of  the  residence  of  the  defendant;  and  if 
real  and  personal  actions  are  joined,  the 
case  falls  within  §  395,  post,  and  must  be 
tried  in  the  county  of  the  residence  of  the 
defendant.  Smith  v.  Smith,  88  Cal.  572; 
2G  Pac.  356;  Warner  v.  Warner,  100  Cal. 
11;  34  Pac.  523;  Booker  v,  Aitken,  140  Cal. 
471;  74  Pac.  11. 

Subject  to  power  of  court  to  change 
venue.  Where  an  action  is  brought  in  the 
wrong  county,  a  motion  for  a  change  of 
venue,  and  not  a  demurrer,  is  the  proper 
remedy.  Watts  v.  White,  13  Cal.  321.  A 
demand  filed  is  essential  to  the  validity  of 
an  application  for  a  change  of  venue. 
Estrada  v.  Orena,  54  Cal.  407;  Byrne  v. 
Byrne,  57  Cal.  348;  Warner  v.  Warner,  100 
Cal.  11;  34  Pac.  523.  Where  an  action  to 
compel  the  conveyance  of  laud  is  com- 
menced in  the  county  in  which  the  land  is 
situated,  the  place  of  trial  may  be  changed, 
either  by  consent  of  the  parties  or  by  order 
of  the  court,  to  another  county,  to  promote 
the  convenience  of  the  witnesses.  Duffv  v. 
Duffy,  104  Cal.  602;  38  Pac.  443.  "By 
amending  his  complaint,  the  plaintiff  can- 
not deprive  the  defendant  of  any  right 
existing  at  the  time  the  motion  is  made 
for  change  of  venue.  Buell  v.  Dodge,  57 
Cal.  645;  Ah  Fong  v.  Sternes,  79  Cal.  30; 
21  Pac.  381;  Brady  v.  Times-Mirror  Co., 
106  Cal.  56;  39  Pac.  209;  Remington  Sew- 
ing Machine  Co.  v.  Cole,  62  Cal.  311.  One 
of  several  defendants  may  apply  for  a 
change  of  venue,  and  he  is  entitled  to  have 
such  change,  on  a  proper  showing,  not- 
withstanding a  co-defendant  has  waived 
his  right  to  a  change.  O'Neil  v.  O'Neil,  54 
Cal.  187;  Warner  v.  Warner,  100  Cal.  11; 
34  Pac.  523;  Pieper  v.  Centinela  Land  Co., 
56  Cal.  173;  McKenzie  v.  Barling,  101  Cal. 
459;  36  Pac.  8.  The  right  of  change  is 
absolute;  the  court  has  no  discretion  in  the 
matter,  where  timely  application  and 
proper  showing  is  made  (Watts  v.  White, 
13  Cal.  321;  Hennessy  v.  Nicol,  105  Cal. 
138;  38  Pac.  649);  but  the  court  is  not 
bound,  of  its  own  motion,  to  change  the 
place  of  trial.  Watts  v.  White,  13  Cal.  321 
(overruling,  so  far  as  conflicting,  Vallejo 
v.  Eandall,  5  Cal.  461).  The  right  to  a 
change  of  the  place  of  trial  of  a  cause 
involving  the  title  to  or  the  right  to  the 
possession  of  real  property  is  a  legal  right, 
and  may  be  waived  (Watts  v.  White,  13 
Cal.  321;  Vallejo  v.  Randall,  5  Cal.  461; 
O'Neil  V.  O'Neil,  54  Cal.  187;  Hearne  v. 
De   Young,   111   Cal.   373;   43   Pac.    1108); 


but  the  waiver  of  the  right,  by  one  defend- 
ant, does  not  affect  the  rigiit  of  the  others. 
O'Neil  V.  O'Neil,  54  Cal.  1S7.  The  right  is 
waived  by  consenting  to  a  trial  in  an- 
other county  (Duffy  v.  Duffy,  104  Cal.  602; 
88  Pac.  443);  and  also  by  stipulating  that 
the  case  be  set  for  trial  at  a  time  to  suit 
the  convenience  of  a  judge  called  in  to 
try  the  cause.  Schultz  v.  McLean,  109  Cal. 
437;  42  Pac.  557. 

Venue  of  actions  for  recovery  of  real 
property.  Actions  to  recover  real  proj)- 
erty,  or  an  interest  therein,  or  for  injuries 
thereto,  or  for  determining  any  right  or 
interest  therein,  must  be  commenced  in  the 
county  in  which  the  land  is  situated. 
Baker  v.  Fireman's  Fund  Ins.  Co.,  73  Cal. 
182;  14  Pac.  686;  Williams  v.  Hall,  79  Cal. 
606;  21  Pac.  965.  The  constitution  re- 
quires that  "all  actions  for  the  recovery  of 
the  possession  of,  quieting  the  title  to,  or 
for  the  enforcement  of  liens  upon  real 
estate,  shall  be  commenced  in  the  county 
in  which  the  real  estate,  or  any  part 
thereof,  affected  by  such  action  or  actions, 
is  situated"  (Goldtree  v.  McAlister,  86  Cal. 
93;  23  Pac.  207;  24  Pac.  801;  Campbell  v. 
West,  86  Cal.  197;  24  Pac.  1000;  Rogers 
V.  Cady,  104  Cal.  288;  43  Am.  St.  Rep. 
100;  38  Pac.  81;  Herd  v.  Tuohy,  133  Cal. 
55;  65  Pac,  139;  Miller  &  Lux  v.  Kern 
County  Land  Co.,  140  Cal.  132;  73  Pac. 
836;  Campbell-Kawannanakoa  v.  Camp- 
bell, 152  Cal.  201;  92  Pac.  184);  and  this 
provision  is  not  retroactive  (Watt  v. 
Wright,  66  Cal.  202;  5  Pac.  91);  nor  does 
it  provide  that  the  action  shall  be  tried, 
but  simply  that  it  shall  be  commenced,  in 
the  county  in  which  the  land  is  situated 
(Duffy  v.  Duffy,  104  Cal.  602;  38  Pac.  443); 
and  the  statutory  provision  of  the  third 
subdivision  of  this  section  is  not  an  ele- 
ment going  to  the  jurisdiction  of  the  court, 
but  is  a  matter  of  legislative  regulation. 
Security  Loan  etc.  Co.  v.  Kauft'mann,  108 
Cal.  214;  41  Pac.  467.  The  privilege 
secured  to  a  defendant,  under  this  section, 
may  be  lost  by  laches,  or  waived  by  sub- 
mitting to  the  jurisdiction  of  the  court  of 
another  county,  and  the  like.  Warner  v. 
Warner,  100  Cal.  11;  34  Pac.  523. 

For  determination  of  right  or  interest. 
An  action  for  the  determination  of  a  right 
or  interest,  in  any  form,  in  real  estate,  is 
triable  in  the  county  where  the  land  is 
situated  (Williams  v.  Hall,  79  Cal.  606;  21 
Pac.  965;  Bentley  v.  Fraser,  16  Cal.  App. 
560;  117  Pac.  683);  as  is  also  an  action 
for  the  reformation  of  a  contract  of  sale 
of  land  (Franklin  v.  Dutton,  79  Cal.  605; 
21  Pac.  964);  and  an  action  for  partition 
is  maintainable  in  any  county  in  which  a 
part  of  the  property  is  situated.  Middle- 
coff  v.  Cronise,  155  Cal.  185;  17  Ann.  Cas. 
1159;  100  Pac.  232.  An  action  to  annul  or 
cancel  a  mortgage  is  one  for  the  deter- 
mination of  a  right  or  interest  in  real 
property  (Smith  v.  Smith,  88  Cal.  572;  26 
Pac.    356;    Baker   v.    Fireman's   Fund   Ins. 


§392 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


272 


Co.,  73  Cal.  182;  14  Pac.  686);  as  is  also 
an  action  to  enforce  a  trust  in  real  prop- 
erty, and  to  avoid  a  deed  (Booker  v. 
Aitken,  140  Cal.  471;  74  Pac.  11);  and  an 
action  for  the  rescission  of  the  sale  of  a 
mine  and  water  rights.  Hartley  v.  Eraser, 
16  Cal.  App.  560;  117  Pac.  6S3. 

Venue  in  actions  for  injury  to  real  prop- 
erty. An  action  for  injury  to  real  prop- 
erty is  within  this  section  (People  v.  Selby 
Smelting  etc.  Co.,  163  Cal.  84;  Ann.  Cas. 
1913E,  1267;  124  Pac.  692,  1135),  although 
caused  by  acts  done  in  another  county 
(Last  Chance  Water  Ditch  Co.  v.  Emigrant 
Ditch  Co.,  129  Cal.  277;  61  Pac.  960),  and 
an  action  to  abate  a  nuisance,  also  caus- 
ing injury  to  real  property.  Marysville  v. 
North  Bloomfield  etc.  Mining  Co.,  66  Cal. 
343;  5  Pac.  507.  An  action  to  enjoin  the 
diversion  of  water  from  a  ditch  situated  in 
two  counties  may  be  brought  in  either 
county;  and  a  corporation  defendant  hav- 
ing its  principal  place  of  business  in  the 
county  other  than  that  in  which  the  action 
is  brought,  is  not  entitled  to  a  change  of 
the  place  of  trial  to  that  county.  Last 
Chance  Water  Ditch  Co.  v.  Emigrant  Ditch 
Co.,  129  Cal.  277;  61  Pac.  960.  An  action 
to  enjoin  the  erection  of  a  dam,  which  will 
permanently  injure  real  estate,  is  within 
this  section  (Drinkhouse  v.  Spring  Valley 
Water  Works,  80  Cal.  308;  22  Pac.  252); 
as  is  also  an  action  to  restrain  mining 
upon  certain  land  (Ophir  Silver  Mining  Co. 
v.  Superior  Court,  147  Cal.  467;  3  Ann. 
Cas.  340;  82  Pac.  70),  and  an  action  for 
damages  occasioned  by  the  destruction  of 
buildings  by  fire.  Las  Animas  etc.  Land 
Co.  V.  Fatjo/9  Cal.  App.  318  ;  99  Pac.  393. 

For  partition  of  real  property.  An  ac- 
tion for  the  partition  of  real  property 
among  tenants  in  common,  who  derive  title 
from  the  same  source,  is  within  this  sec- 
tion. Murphv  v.  Superior  Court,  138  Cal. 
69;  70  Pac.  1070. 

For  the  foreclosure  of  liens  and  mort- 
gages. An  action  to  enforce  a  vendor's 
lien  on  land  is  within  this  section  (South- 
ern Pacific  E.  R.  Co.  v.  Pixley,  103  Cal. 
118;  37  Pac.  194;  Baker  v.  Fireman's  Fund 
Ins.  Co.,  73  Cal.  182;  14  Pac.  6S6) ;  as  is 
also  an  action  for  the  foreclosure  of  a 
mortgage  (Goldtree  v.  McAlister,  86  Cal. 
93;  23  Pac.  407;  24  Pac.  801;  Campbell  v. 
West,  86  Cal.  197;  24  Pac.  1000;  Staacke 
V.  Bell,  125  Cal.  309;  57  Pac.  1012),  and  an 
action  to  foreclose  a  tax  lien  (People  v. 
Plumas-Eureka  Mining  Co.,  51  Cal.  566); 
and  an  action  to  cancel  a  mortgage  for 
fraud.  Bailey  v.  Co.x,  102  Cal.  333;  36 
Pac.  650.  In  an  action  to  foreclose  a  mort- 
gage on  land,  the  plaintiff  must  both  allege 
and  prove  that  the  land  is  situated  in  the 
county  in  which  the  action  is  })rought. 
Campbell  v.  West,  86  Cal.  197;  24  Pac, 
1000.  Every  court  takes  judicial  notice 
of  the  existence  and  boundaries  of  the  ter- 
ritory within  which  it  exercises  jurisdic- 
tion, as  well  as  of  the  subject-matter  over 
which  jurisdiction  has  been  conferred  on 
Lt.    People   V.   Oakland   Water  Front   Co., 


lis  Cal.  234;  50  Pac.  305.  A  decree  of  fore- 
closure, rendered  by  the  court  of  the  wrong 
countv,  is  void.  Rogers  v.  Cady,  104  Cal. 
288 ;  43  Am.  St.  Rep.  100 ;  38  Pac.  81. 

Personal  actions.  An  action  for  an  ac- 
counting, even  though  iuvolving  real  es- 
tate, is  personal,  and  is  not  within  this 
section.  Clark  v.  Brown,  83  CaL  181;  23 
Pac.  2S9;  Smith  v.  Smith,  SS  Cal.  572;  26 
Pac.  358.  Such  an  action  must  be  tried 
in  the  county  where  the  defendant  resides, 
although  the  land  is  situated  in  another 
county.  Smith  v.  Smith,  SS  Cal.  572;  26 
Pac.  356;  Warner  v.  Warner,  100  Cal.  11; 
34  Pac.  523;  Bailey  v.  Cox,  102  Cal.  333; 
36  Pac.  650;  GrifSn  etc.  Co.  v.  Magnolia 
etc.  Fruit  Cannery  Co.,  107  Cal.  378;  40 
Pac.  495.  Nor  is  an  action  for  the  breach 
of  a  covenant  in  a  deed,  nor  an  action  for 
the  cancellation  of  a  deed,  for  a  divorce, 
and  for  a  division  of  the  community  prop- 
erty, within  this  section  (Warner  v.  War- 
ner, 100  Cal.  11;  34  Pac.  523);  nor  an  ac- 
tion for  the  removal  of  a  trustee  of  real 
property  (More  v.  Superior  Court,  64  Cal. 
345;  28  Pac.  117);  nor  an  action  for  the 
settlement  of  a  trust  in  relation  to  real 
and  personal  property  (Le  Breton  v.  Su- 
perior Court,  66  Cal.  27;  4  Pac.  777);  nor 
an  action  in  the  nature  of  a  creditor's  bill, 
to  set  aside  a  deed  made  by  an  executor, 
on  the  ground  of  fraud  (Beach  v.  Hodg- 
don,  66  Cal.  187;  5  Pac.  77)  ;  nor  an  action 
in  which  mandamus  is  sought,  to  compel  the 
sheriff  to  execute  a  deed  (McMillan  v.  Rich- 
ards, 9  Cal.  365;  70  Am.  Dec.  655)  ;  nor  an 
action  to  recover  the  purchase-money  for 
land  sold  (Samuel  v.  Allen,  98  Cal.  400;  33 
Pac.  273)  ;  nor  an  action  against  a  wife  to 
recover  the  cost  of  a  party- wall  (Anaheim 
Odd  Fellows'  Hail  Ass'n  v.  Mitchell,  6  Cal. 
App.  431;  92  Pac.  331);  nor  an  action  for 
damages  for  the  fraud  of  an  agent  in  the 
sale  of  shares  of  stock.  Krogh  v.  Pacific 
Gateway  etc.  Co.,  11  Cal.  App.  237;  104 
Pac.  698.  An  action  to  remove  a  trustee 
of  mining  property  is  personal:  he  has  the 
right  to  have  the  cause  tried  in  the  county 
of  his  residence.  Golden  Cross  Mining  etc. 
Co.  V.  Spiers,  115  Cal.  247;  47  Pac.  108. 

Forum  in  which  action  for  damages  to  realty 

must  be  brought.    See  note  3   Ann.   Cas.  344. 

Venue  of  action  to  recover  shares  of  stock. 
See  note  Ann.  Cas.  1913D,  506, 

Venue  of  action  to  set  aside  transfer  of  realty 

■within  state  as  in  fraud  of  creditors.  See  note 
Ann.  Cas.  1913D,  6G3. 

CODE  COMMISSIONEKS'  NOTE.  1.  Actiona 
to  foreclose  mortgages  must  be  tried  in  the 
county  in  which  the  subject  of  tiie  action,  or 
some  part  thereof,  is  situated.  Vallejo  v.  Ran- 
dall, 5  Cal.  462;  but  see  Watts  v.  White,  13  Cal. 
324,  overruling  this  case  in  some  particulars. 

2.  Residence  of  parties  in  actions  concerning 
real  property  is  immaterial.  It  is  unnecessary 
to  mention  the  residence  of  the  parties,  or  either 
of  them,  in  actions  concerning  real  property.  The 
statute  only  provides  for  the  trial  of  actions  in 
certain  counties;  and  with  reference  to  actions 
to  recover  real  property,  the  situation  of  the 
premises,  ^nd  not  the  re.sidence  of  the  parties, 
determines  the  county.  Doll  v.  Feller,  16  Cal. 
433. 

3.  Mining  claims  are  within  the  provisions  of 
this  section.  See  IIuRhes  v.  Devlin,  23  Oal.  506, 
affirming  Watts  v.  White,  13  Cal.  324. 


273      VENUE — PENALTY  OR  FORFEITURE — PUBLIC  OFFICER — COUNTY.       §§393,394 


4.  Not  applicable  to  probate  proceedinss.  This 
seclion.  does  not  apply  to  probate  proceedings. 
Estate  of  Scott,  15  Cal.  220. 

5.  Court  is  not  bound,  on  its  own  motion,  to 
change  the  venue.  It  is  a  matter  of  right  as  to 
the  parties,  however.  For  cunvenienre,  parties 
have  a  riglit  to  a  trial  of  jjarticnlar  cases  in  par- 
ticular counties.  This  is  a  more  privilege.  «'hich 
may  be  waived  by  those  entitled  to  it.  It  must 
be  claimed  at  the  proper  time,  and  in  the  proper 
way.      It  is  not,  by  our  statute,  matter  in  abate- 


ment of  the  writ,  but  a  mere  privilege  of  trial 
of  the  suit  in  the  given  county.  The  party  de- 
siring a  change  of  venue  should  move  the  court 
to  change  the  place  of  trial,  and  then  the  court, 
in  the  proper  case,  has  no  discretion  to  refuse 
the  motion.  It  seems  to  be  made  by  the  statute 
a  matter  of  peremptory  risht.  We  think  the 
court  is  not  bound,  of  its  own  motion,  to  change 
the  venue,  and  overrule  so  far  the  case  of  Va- 
llejo  V.  Randall,  5  Cal.  461,  if  that  case  is  to  be 
so  construed.     Watts  v.  White,  13  Cal.  324. 


§  393.  Other  actions,  where  the  cause  or  some  part  thereof  arose.  Ac- 
tions for  the  following  causes  must  be  tried  in  the  county  where  the  cause, 
or  some  part  thereof,  arose,  subject  to  the  like  power  of  the  court  to  change 
the  place  of  trial : 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  statute ;  except, 
that  when  it  is  imposed  for  an  offense  committed  on  a  lake,  river,  or  other 
stream  of  water,  situated  in  two  or  more  counties,  the  action  may  be  brought 
in  any  county  bordering  on  such  lake,  river,  or  stream,  and  opposite  to  the 
place  where  the  offense  was  committed ; 

2.  Against  a  public  officer,  or  person  especially  appointed  to  execute  his 
duties,  for  an  act  done  by  him  in  virtue  of  his  office ;  or  against  a  person 
who,  by  his  command  or  in  his  aid,  does  anything  touching  the  duties  of 
such  officer. 

which  the  estate  is  being  administered, 
particularly  in  the  absence  of  a  motion  to 
retain  the  case  in  the  county  for  the  con- 
venience of  witnesses.  Thompson  v.  Wood, 
115  Cal.  301;  47  Pac.  50.  In  an  action  for 
false  imprisonment,  the  defendant  has  the 
right  to  have  the  place  of  trial  changed 
to  the  county  of  his  residence.  Ah  Fong 
V.  Sternes,  79  Cal.  30;  21  Pac.  381.  Statu- 
tory provisions  determining  the  proper 
place  of  trial  do  not  affect  the  jurisdic- 
tion of  the  court.  Herd  v.  Tuohy,  133  Cal. 
55;  65  Pac.  139.  Probate  proceedings  were 
not  civil  actions,  within  the  meaning  of 
§§  18-21  of  the  Practice  Act.  Estate  of 
Scott,  15  Cal.  220.  An  action  for  damages 
for  fraud  in  the  sale  of  stock  is  personal 
and  transitory,  and  not  within  this  section. 
Krogh  V.  Pacific  Gateway  etc.  Co.,  11  Cal. 
App.  237;  104  Pac.  698. 


Legislation  §  393.  Enacted  March  11,  18T2; 
based  on  Practice  Act,  §  19  (New  York  Code, 
§  124). 

Actions  defined.  The  word  "actions,"  as 
used  in  this  section,  refers  to  such  actions 
as  are  defined  in  §  22,  ante,  and  does  not 
include  "special  proceedings."  Santa  Rosa 
V.  Fountain  Water  Co.,  138  Cal.  579;  71 
Pac.  1123,  1136. 

Actions  for  the  recovery  of  a  penalty. 
An  action  for  the  recovery  of  a  statutory 
penalty  must  be  tried  in  the  county  where 
the  cause  of  action,  or  some  part  thereof, 
arose.  Ah  Fong  v.  Sternes,  79  Cal.  30;  21 
Pac.  381. 

Actions  against  a  public  officer.  The 
second  subdivision  of  this  section  applies 
only  to  such  afiirmative  acts  of  an  officer 
as  directly  interfere  with  the  personal 
rights  or  property  of  the  person  complain- 
ing, such  as  wrongful  arrests,  trespass,  and 
conversion,  and  not  to  mere  omissions  or 
neglect  of  official  duty.  McMillan  v.  Rich- 
ards, 9  Cal.  365;  70  Am.  Dec.  655;  Bonestell 
V.  Curry,  153  Cal.  418;  95  Pac.  887;  State 
Commission  v.  Welch,  154  Cal.  775;  99  Pac. 
181.  An  executor  is  not  a  public  officer, 
within  this  section;  and  he  is  entitled  to 
have  a  change  of  venue  to  the  county  of 
his  residence,  when  sued  in  the  county  in 


CODE  COMMISSIONERS'  NOTE.  The  second 
subdivision  of  this  section,  which  provides  that 
actions  against  a  public  otificer  for  acts  done  by 
him  in  virtue  of  his  office,  shall  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof, 
arose,  applies  only  to  affirmative  acts  of  the 
officer,  by  which,  in  the  execution  of  process,  or 
otherwise,  he  interferes  with  the  property  or 
rights  of  a  third  person,  and  not  to  mere  omis- 
sions or  neglect  of  official  duty.  Elliot  v.  Cronk, 
13  Wend.  35;  Hopkins  v.  Haywood.  13  Wend. 
265;  McMillan  v.  Richards,  9  Cal.  420;  70  Am. 
Dec.  655. 


§  394.  Place  of  trial  of  actions  against  counties.  An  action  or  proceed- 
ing against  a  county,  or  city  and  county,  may  be  commenced  and  tried  in 
such  county,  or  city  and  county,  unless  such  action  or  proceeding  is  brought 
by  a  county,  or  city  and  county,  in  which  case  it  may  be  tried  in  any  county, 
or  city  and  county,  not  a  party  thereto.  Whenever  an  action  or  proceed- 
ing is  brought  by  a  county,  city  and  county,  or  city,  against  a  resident  of 
another  county,  city  and  county,  or  city,  or  a  corporation  doing  business 

1  Fair. — 18 


§395 


PLACE  OF  TRIAL  OP  CIVIL  ACTIONS. 


274 


in  the  latter,  the  action  or  proceeding  must  be,  on  motion  of  the  said  de- 
fendant, transferred  for  trial  to  a  county,  or  city  and  county,  other  than 
the  plaintiff,  if  the  plaintiff  is  a  county,  or  city  and  county,  and  other  than 
that  in  which  the  plaintiff  is  situated,  if  the  plaintiff  is  a  city,  and  other 
than  that  in  which  the  defendant  resides  or  is  doing  business  or  is  situated. 
Whenever  an  action  or  proceeding  is  brought  against  a  county,  city  and 
county,  or  city,  in  any  county,  or  city  and  county,  other  than  the  defend- 
ant, if 'the  defendant  is  a  county,  or  city  and  county,  or,  if  the  defendant 
is  a  city,  other  than  that  in  which  the  defendant  is  situated,  the  action  or 
proceeding  must  be,  on  motion  of  the  said  defendant,  transferred  for  trial 
to  a  county,  or  city  and  county,  other  than  that  in  which  the  plaintiff,  or 
any  of  the  plaintiffs,  resides,  or  is  doing  business,  or  is  situated,  and  other 
than  the  plaintiff  county,  or  city  and  county,  or  county  in  which  such  plain- 
tiff city  is  situated,  and  other  than  the  defendant  county,  or  city  and  county, 
or  county  in  which  such  defendant  city  is  situated.  In  any  action  or  pro- 
ceeding, the  parties  thereto  may,  by  stipulation  in  vv^riting,  or  made  in  open 
court,  and  entered  in  the  minutes,  agree  upon  any  county,  or  city  and 
county,  for  the  place  of  trial  thereof.  This  section  shall  apply  to  actions 
or  proceedings  now^  pending  or  hereafter  brought. 

Actions  against  cities  for  injuries  from  molia.       Yuba   County  v.  North  America   etc.   Min- 


See  Pol.  Code,  §  4453. 

Legislation  8  394.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1854,  Redding  ed.  p.  45,  Kerr 
ed.  p.  194),  and  then  read:  "§  394.  Actions 
against  counties  may  be  commenced  and  tried 
in  any  county  in.  the  judicial  district'  in  which 
such  county  is  situated,  unless  such  actions  are 
between  counties,  in  which  case  they  may  be 
commenced  and  tried  in  any  county  not  a  party 
thereto." 

2.  Amended  by  Stats.  1881,  p.  23,  to  read: 
"An  action  against  a  county,  or  city  and  county, 
may  be  commenced  and  tried  in  such  county,  or 
city  and  county,  unless  such  action  is  brought 
by  a  county,  or  city  and  county,  in  which  case 
it  may  be  commenced  and  tried  in  any  county, 
or  city  and  county,  not  a  party  thereto." 

3.  Amended  by  Stats.  1S91,  p.  56,  by  add- 
ing the  proviso:  "provided  further,  that  when- 
even  an  action  is  brought  by  a  county  or  city 
against  citizens  of  another  county,  or  a  corpora- 
tion doing  business  in  the  latter,  the  action  must 
he,  on  the  motion  of  the  defendant,  transferred 
for  trial  to  a  county  other  than  the  plaintiff,  if 
the  plaintiff  be  a  county,  and  other  than  that  in 
which  the  plaintiff  is  situated  if  the  plaintiff  be 
a  city." 

4.  Amendment  by  Stats.  1901,  p.  128;  un- 
constitutional.     See  note  ante,  §  5. 

5.  Amended  by  Stats.  1907,  p.  700,  (1) 
in  the  first  sentence,  striking  out  "city  and 
county,"  after  "county,"  in  the  three  instances; 
(2)  changing  the  proviso  into  a  sentence,  and 
incidentally  striking  out  "provided  further, 
that";  (3)  substituting  "residents"  for  "citi- 
zens"; (4)  inserting  "or  city"  after  "another 
county";  (5)  substituting  "is"  for  "be"  in  the 
two  instances.  The  code  commissioner  says,  in 
his  note,  "The  word  'citizen'  is  stricken  out,  and 
the  word  'residence'  is  inserted,  that  having 
been  the  legislative  intent  in  the  original  enact- 
ment of  the  section." 

6.  Amended  by  Stats.  1915,  p.  721,  the  old 
iection  being  recast,  and  two  new  sentences 
added  at  the  end  thereof. 

Section  not  special  legislation.  This  sec- 
tion is  not  sjjecial  leg^islation,  merely  be- 
cause it  provides  a  different  rule  in  tlie 
case  of  non-resident  defendants  from  that 
■which     applies     to     resident     defendants. 


ing  Co.,  12  Cal.  App.  223;  107  Pac.  139. 

Action  defined.  The  word  "action,"  as 
used  in  this  section,  does  not  include  a 
special  proceeding.  Santa  Rosa  v.  Foun- 
tain Water  Co.,  138  Cal.  579;  71  Pac.  1123, 
1136. 

Action  by  a  county.  Where,  in  an  ac- 
tion by  a  county  against  the  county  treas- 
urer and  the  sureties  on  his  bond,  a  motion 
is  made  by  a  substituted  administrator  of 
a  deceased  surety  for  a  change  of  the  place 
of  trial  to  the  county  of  the  residence  of 
the  surety,  the  burden  of  proof  is  on  such 
administrator  to  show  that  none  of  the 
other  defendants  resided  in  the  county  at 
the  time  suit  was  brought.  Modoc  County 
V.  Madden,  136  Cal.  134;  68  Pac.  491; 
Hearne  v.  De  Young,  111  Cal.  373;  43  Pac. 
IIO'S;  Greenleaf  v.  Jacks,  133  Cal.  506;  65 
Pac.  1039.  This  section  applies  to  an  ac- 
tion by  a  county  against  a  non-resident  to 
enjoin  the  pollution  of  a  stream  (Yuba 
County  V.  North  America  etc.  Mining  Co., 
12  Cal.  App.  223;  107  Pac.  139);  and  to  all 
actions  brought  by  the  state.  State  v. 
Campbell,  3  Cal.  App.  602;  86  Pac.  840. 
The  language  of  this  section  which  applies 
to  an  action  by  a  county,  as  plaintiff, 
against  a  corporation  doing  business  in 
another  county,  is  mandatory,  that  the 
action  must,  on  motion  of  the  defendant, 
be  transferred  to  a  county  other  than  the 
plaintiff.  Yuba  County  v.  North  America 
etc.  Mining  Co.,  12  Cal.  App.  223;  107  Pac. 
139. 

Venwe  of  action  against  municipal  corporation. 

See  note  25  L.  R.  A.  (N.  S.)  711. 

CODE  COMMISSIONEES'  NOTE.  Stats.  1854, 
p.  194. 


§  395.     Actions  to  be  tried  in  county  in  which  defendant  resides,  etc.     If 
defendant  does  not  reside  in  state.     In  all  other  cases,  the  action  must  be 


275 


VENUE RESIDENT  AND  NON-RESIDENT  DEFENDANTS. 


§395 


tried  in  the  county  in  which  the  defendants,  or  some  of  them,  reside  at  the 
commencement  of  the  action,  or  if  it  be  an  action  for  injury  to  person,  or 
property,  or  for  death  from  wrongful  act,  or  negligence,  in  the  county  where 
the  injury  occurs,  or  the  injury  causing  death  occurs,  or  in  the  county  in 
which  the  defendants,  or  some  of  them,  reside  at  the  commencement  of  the 
action.  If  none  of  the  defendants  reside  in  the  state,  or,  if  residing  in  the 
state,  and  the  county  in  which  they  reside  is  unknown  to  the  plaintiff,  the 
same  may  be  tried  in  any  county  which  the  plaintiff  may  designate  in  his 
complaint,  and  if  the  defendant  is  about  to  depart  from  the  state,  such  ac- 
tion may  be  tried  in  any  county  where  either  of  the  parties  reside,  or  service 
is  had,  subject  however,  to  the  power  of  the  court  to  change  the  place  of 
trial,  as  provided  in  this  code.  If  any  person  is  improperly  joined  as  a 
defendant,  or  has  been  made  a  defendant  solely  for  the  purpose  of  having 
the  action  tried  in  the  county  where  he  resides,  his  residence  must  not  be 
considered  in  determining  which  is  the  proper  county  for  the  trial  of  the 
action. 

proceedings,  such  as  those  for  the  con- 
demnation of  land  (Santa  Rosa  v.  Foun- 
tain Water  Co.,  138  Cal.  579;  71  Pac.  1123, 
1136);  nor  to  an  action  to  set  aside  a  deed. 
Sloss  V.  De  Toro,  77  Cal.  129;  19  Pac.  233. 
Actions  for  the  condemnation  of  land  must 
be  brought  and  tried  in  the  county  where 
the  land  is  situated,  unless  transferred  to 
another  county,  as  provided  in  this  sec- 
tion. Santa  Rosa  v.  Fountain  Water  Co., 
138  Cal.  579;  71  Pac.  1123,  1136.  Con- 
demnation proceedings  should  be  tried  in 
the  county  where  the  land  is  situated,  al- 
though the  defendants  therein  reside  else- 
where. John  Heinlen  Co.  v.  Superior  Court, 
17  Cal.  App.  660;  121  Pac.  293.  The  de- 
fendant's right  to  have  an  action  tried  in 
the  county  of  his  residence  is  subordinate 
to  the  direction  in  §  392,  ante,  that  a  local 
action,  as  one  to  enforce  a  trust  in  mining 
property,  must  be  tried  in  the  county  where 
the  property  is  situated.  McFarland  v. 
Martin,  144  Cal.  771;  78  Pac.  239.  One 
who  properly  should  have  been  made  a 
plaintiff,  but  who  refuses  to  become  such, 
and  is  therefore  made  a  nominal  defend- 
ant, is  not  a  "defendant"  within  this  sec- 
tion. Donohoe  v.  Wooster,  163  Cal.  114; 
124  Pac.  730.  The  proceedings  for  the  set- 
tlement of  an  estate,  and  matters  con- 
nected therewith,  is  not  a  civil  action, 
within  the  meaning  of  this  section,  so  as 
to  transfer  it  from  one  county  to  another. 
Estate  of  Scott,  15  Cal.  220.  The  posi- 
tive provision  of  the  statute,  that  actions 
shall  be  commenced  in  a  particular  county, 
must  be  carried  out;  but  that  does  not 
prohibit  a  change  of  the  place  of  trial. 
Uhlfelder  v.  Levy,  9  Cal.  607.  The  term 
"proper  county"'  means  the  county  in 
which  the  action  is  required  to  be  trieil, 
subject  to  the  power  of  the  court  to  change 
the  place  of  trial.  Cook  v.  Pendergast, 
61  Cal.  72.  The  right  of  a  plaintiff',  by 
this  section,  to  have  an  action  tried  in  a 


Change  of  venuo  in  criminal  actions.  See  Pen. 
Code,  §§  1033,  1034. 

Legislation  g  395.  1.  Enacted  March  11,  1873  j 
based  on  Practice  Act,  §  20  (New  York  Code, 
§  125),  as  amended  by  Stats.  1858,  p.  82,  -which 
read :  "In  all  other  cases,  the  action  shall  be 
tried  in  the  county  in  which  the  defendants,  or 
any  one  of  them,  may  reside  at  the  commence- 
ment of  the  action ;  or,  if  none  of  the  defend- 
ants reside  in  the  state,  or,  if  residing  in  this 
state,  the  county  in  which  they  so  reside  be  un- 
known to  the  plaintiff,  the  same  may  be  tried 
in  any  county  which  the  plaintiff  may  designate 
in  his  complaint;  and  if  any  defendant  or  de- 
fendants may  be  about  to  depart  from  the  state, 
su.'h  action  may  be  tried  in  any  county  where 
either  of  the  parties  may  reside  or  service  be 
had  ;  subject,  however,  to  the  power  of  the  court 
to  change  the  place  of  trial  as  provided  in  this 
act."  When  enacted  in  1872,  (1)  the  words 
^'action.  If  none"  read  "action;  or,  if  none," 
(2)  the  words  "residing  in  the  state,"  read  "re- 
siding in  this  state,"  (3)  and  the  section  ended 
with  the  words  "provided  in  this  code." 

2.  Amendment  by  Stats.  1901,  p.  128;  un- 
constitutional.    See  note   ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  700,  the  code 
commissioner  saying,  "The  last  sentence  of  this 
section  has  been  added,  and  the  amendment 
thereby  made  is  intended  to  reach  cases  where  a 
person  has  been  made  a  defendant  solely  for  the 
purpose  of  having  an  action  tried  in  the  county 
wherein  he  resides,  thus  taking  away  from  the 
defendant  properly  joined  and  from  the  real  de- 
fendants the  rights  of  change  of  venue  intended 
to  be  vouchsafed  to  them  in  other  sections  of  the 
code." 

4.  Amended  by  Stats.  1911,  p.  847,  adding 
to  the  end  of  the  first  sentence  all  the  matter 
beginning  with  "or  if  it  be  an  action  for  injury," 
the  other  sentences  not  being  amended. 

Construction  of  section.  This  section 
applies  to  an  action  for  damages  for  per- 
sonal injuries  (McDonald  v.  California 
Timber  Co.,  151  Cal.  159;  90  Pac.  548); 
and  also  to  actions  brought  by  the  state 
(State  V.  Campbell,  3  Cal.  App.  602;  86 
Pac.  840) ;  and  to  an  action  for  the  fraud 
of  an  agent  in  the  sale  of  corporate  stock 
(Krogh  V.  Pacific  Gateway  etc.  Co.,  11 
Cal.  App.  237;  104  Pac.  698);  and  to  an 
action  on  a  note  past  due,  without  refer- 
ence to  the  place  of  its  execution  or  pay- 
ment (Bell  V.  Camm,  10  Cal.  App.  388;  102 
Pac.  225);  but  it  does  not  apply  to  special 


§395 


PLACE  OF  TRIAL  OF  CIVIL   ACTIONS. 


275 


county  other  than  that  in  which  the  de- 
fendant resides,  is  exceptional;  and  if 
he  -svould  claim  such  right,  he  must  bring 
himself  within  the  terms  of  the  exception. 
Brady  v.  Times  Mirror  Co.,  106  Cal.  56; 
39  Pac.  209. 

Residence  of  parties.  The  right  of  the 
defendant  to  have  the  action  tried  in  the 
county  where  he  resides  at  the  tim„e  of  the 
commencement  of  the  suit,  is  provided 
bv  this  section  (Palmer  &  Eey  v.  Barclay, 
92  Cal.  199;  28  Pac.  226) ;  and  where  there  is 
no  express  provision  to  the  contrary,  the 
proper  county  for  trial,  subject  to  the 
power  of  the  court  to  change  the  place 
of  trial  on  account  of  convenience  of  wit- 
nesses, disqualification  of  judge,  and  in- 
ability to  have  an  impartial  trial,  is  the 
county  in  which  the  defendants,  or  some 
of  them,  reside  at  the  commencement  of 
the  action.  Bonestell  v.  Curry,  153  Cal. 
■418;  95  Pac.  887.  A  personal  action  to 
recover  a  money  judgment  is  triable  in 
the  county  of  defendant's  residence  (Ana- 
heim Odd  Fellows'  Hall  Ass'n  v.  Mitchell, 
6  Cal.  App.  431;  92  Pac.  331);  as  is  also 
an  action  to  compel  a  county  treasurer 
to  pay  over  certain  moneys  to  the  state 
treasurer.  State  Commission  v.  Welch, 
154  Cal.  775;  99  Pac.  181.  If  one  defend- 
ant resides  in  one  county  and  a  co-de- 
fendant in  another  county,  the  plaintiff 
mav  have  the  cause  tried  in  either  county. 
O'Brien  v.  O'Brien,  16  Cal.  App.  193;  116 
Pac.  696;  Hellman  v.  Logan,  148  Cal.  58; 
82  Pac.  848.  An  action  to  recover  dam- 
ages for  the  loss  of  property  by  fire,  caused 
by  the  negligence  of  the  defendants,  may 
be  brought  in  the  county  of  the  residence 
of  either  defendant.  Quint  v.  Dimond, 
135  Cal.  572;  67  Pac.  1034.  An  action  to 
recover  a  partnership  interest,  and  for 
an  accounting,  must  be  tried  in  the  county 
in  vrhich  the  defendants,  or  some  of  them, 
reside  at  the  commencement  of  the  ac- 
tion; it  is  only  where  none  of  the  de- 
fendants are  residents  of  the  state  that 
the  plaintiff  can  designate  in  his  complaint 
the  place  of  trial  (Banta  v.  Wink,  119 
Cal.  78;  51  Pac.  17);  and  the  burden  of 
proof  is  on  the  moving  party  to  show  that 
no  defendant  resides  in  the  county  where 
the  suit  is  commenced.  Modoc  County  v. 
Madden,  136  Cal.  134;  68  Pac.  491.  'The 
test  is.  Does  one  of  the  necessary  parties 
reside  in  the  county  where  the  action  is 
brought?  and  if  so,  it  may  be  trieil  there. 
Hellman  v.  Logan,  148  Cal.  58;  82  Pac. 
848.  In  the  United  States  generally,  and 
particularly  in  this  state,  the  distinction 
between  local  and  transitory  actions,  so 
far  as  any  consequence  attends  it,  de- 
pends entirely  upon  statutory  law,  and  does 
not  coincide  with  or  depend  upon  the  dis- 
tinction between  actions  in  rem  and  ac- 
tions in  personam  (Fresno  Nat.  Bank  v. 
Superior  Court,  83  Cal.  491;  24  Pac.  157); 
but  an  action  to  compel  the  execution  of 


a  deed  does  not  involve  the  determination 
of  an  interest  in  real  property,  and  it 
may  be  commenced  and  tried  in  the  county 
where  the  relator  resides.  McMillan  v. 
Eichards,  9  Cal.  365;  70  Am.  Dec.  655. 

Where  residence  of  defendant  is  un- 
known. The  right  to  designate  the  county 
in  which  to  bring  the  action  is  not  an 
arbitrary  right,  or  optional  with  the 
plaintiff  upon  a  mere  statement  that  the 
residence  of  the  defendant  is  unkuowo 
to  him;  he  must  state  facts  sufficient  to 
show  that  he  has  resorted  to  such  means 
to  ascertain  the  defendant's  residence  as 
would  be  expected  of  a  reasonable  man 
in  seeking  in  good  faith  to  make  the 
discovery.  Mahler  v.  Drummer  Boy  Gold 
Mining  Co.,  7  Cal.  App.  190,  192,  93  Pac. 
1064. 

Venue  in  actions  against  corporations, 
generally.  A  corporation  may  be  sued  in 
the  county  where  it  has  its  principal  place 
of  business.  Fresno  Nat.  Bank  v.  Supe- 
rior Court,  83  Cal.  491;  24  Pac.  157;  Buck 
V.  Eureka,  97  Cal.  135;  31  Pac.  845;  Whit& 
V.  Fresno  Nat.  Bank,  98  Cal.  166;  32  Pac. 
979;  Trezevant  v.  W.  R.  Strong  Co.,  102 
Cal.  47;  36  Pac.  395. 

Corporations,  as  well  as  natural  persons, 
are  entitled  to  have  personal  or  transitory 
actions  tried  in  the  county  of  their  resi- 
dence. Krogh  V.  Pacific  Gateway  etc.  Co.,. 
11  Cal.  App.  237;  104  Pac.  698.  An  ac- 
tion against  a  corporation  to  recover  dam- 
ages for  injuries  to  real  property  may  be 
brought  and  tried  in  the  county  where 
its  principal  place  of  business  is  situated, 
although  not  the  one  in  which  the  land 
is  located.  Miller  &  Lux  v.  Kern  County 
Land  Co.,  134  Cal.  586;  66  Pac.  856.  Ac- 
tions against  foreign  corporations  may  be 
brought  and  tried  in  any  county  of  the 
state,  in  the  absence  of  a  statute  con- 
ferring upon  them  a  county  residence. 
Waechter  v.  Atchison  etc.  Ry.  Co.,  10  Cal. 
App.  70;  101  Pac.  41;  Thomas  v.  Placer- 
ville  etc.  Mining  Co.,  65  Cal.  600;  4  Pac. 
641. 

Constitutional  provision  as  to  venue  of 
actions  against  corporations.  Under  §  16 
of  article  XII  of  the  constitution,  a  per- 
sonal action  against  a  domestic  corporation 
may,  at  the  option  of  the  plaintiff,  be 
commenced  in  one  of  the  designated  coun- 
ties, other  than  the  one  in  which  the  de- 
fendant has  its  principal  place  of  business, 
and  may  be  prosecuted  to  final  judgment 
where  commenced,  unless  the  defendant 
can  allege  and  show  some  sufficient  ground 
for  a  change  of  the  place  of  trial,  dis- 
tinct from  the  fact  that  the  residence  of 
the  corporation  is  in  another  county  (Cook 
V.  Ray  Mfg.  Co.,  159  Cal.  694;  115  Pac. 
318);  but  that  section  applies  only  to 
domestic  corporations  or  asEociations,  and 
not  to  foreign  corporations  (Waechter  v. 
Atchison  etc.  Ry.  Co.,  10  Cal.  App.  70;  101 
Pac.  41);  and  its  provisions  are  applicable 


277 


CORPORATIONS    DEFENDANT — RESIDENCE — CUANGE    OF    VENUE. 


§395 


in  actions  in  tort  as  well  as  in  actions  on 
contracts.  Miller  &  Lux  v.  Kern  County 
Land  Co.,  134  Cal.  586;  G6  Pac.  856;  Lewis 
V.  South  Pac.  Coast  R.  R.  Co.,  66  Cal.  209; 
-5  Pac.  79;  Fresno  Nat.  Bank  v.  Superior 
•Court,  83  Cal.  491;  24  Pac.  157;  Treze- 
vaut  V.  W.  R.  Stronjr  Co.,  1C2  Cal.  47;  36 
Pac.  395;  Brady  v.  Times-Mirror  Co.,  106 
Cal.  56;  39  Pac.  209.  The  word  "may" 
does  not  mean  "must,"  in  the  provision 
of  that  section,  that  a  corporation  "may 
be  sued  in  the  county  where  the  contract 
is  made  or  is  to  be  performed,  or  where 
the  obligation  or  liability  arises  or  the 
breach  occurs;  or  in  the  county  where 
the  principal  place  of  business  of  such 
corjioration  is  situated."  Miller  &  Lux 
V.  Kern  County  Land  Co.,  134  Cal.  586; 
66  Pac.  856;  Griffin  &  Skelly  Co.  v.  Mag- 
nolia etc.  Fruit  Cannerj^  Co.,  107  Cal.  378;  40 
Pac.  495.  Nor  does  that  section  violate  the 
fourteenth  amendment  of  the  Federal 
constitution,  in  depriving  domestic  corpo- 
rations of  the  equal  protection  of  the  laws. 
€ook  V.  Ray  Mfg.  Co.,  159  Cal.  694;  115 
Pac.  318. 

Eesidence  of  corporations.  The  place 
■of  residence  of  a  corporation,  foreign  or 
domestic,  is  the  place  where,  by  its  ar- 
ticles of  incorporation,  it  has  its  prin- 
■cipal  place  of  business  (Waechter  v.  At- 
chison etc.  Ry.  Co.,  10  Cal.  App.  70;  101 
Pac.  41;  Krogh  v.  Pacific  Gateway  etc. 
Co.,  11  Cal.  App.  237;  104  Pac.  698);  and 
the  principal  place  of  business  of  a  domes- 
tic corporation  is  its  residence,  within  the 
meaning  of  this  section.  California  South- 
ern R.  R.  Co.  V.  Southern  Pacific  R.  R.  Co., 
65  Cal.  394;  4  Pac.  344;  Waechter  v.  At- 
chison etc.  Ry.  Co.,  10  Cal.  App.  70;  101 
Pac.  41;  Krogh  v.  Pacific  Gateway  etc.  Co., 
11  Cal.  App.  237;  104  Pac.  698";  .Jenkins 
-V.  California  Stage  Co.,  22  Cal.  537;  Mc- 
Sherry  v.  Pennsylvania  etc.  Mining  Co., 
97  Cal.  637,  643;"  32  Pac.  711;  Trezevant 
V.  W.  R.  Strong  Co.,  102  Cal.  47;  36  Pac. 
^95;  Buck  v.  Eureka,  97  Cal.  135;  31  Pac. 
845;  but  see  Cohn  v.  Central  Pacific  R. 
H.  Co.,  71  Cal.  488;  12  Pac.  498;  Howell  v. 
Stetefeldt  Furnace  Co.,  69  Cal.  153;  10 
Pac.  390.  Compliance  by  a  foreign  cor- 
poration with  the  laws  of  this  state  in 
regard  to  the  establishment  of  a  principal 
place  of  business  in  this  state,  does  not 
make  it  a  domestic  corporation.  Waechter 
V.  Atchison  etc.  Ry.  Co.,  10  Cal.  App.  70; 
101  Pac.  41.  A  municipal  corporation, 
though  not  capable  of  having  a  "resi- 
dence," in  the  ordinary  and  restricted 
sense  of  that  word,  occupies  a  position 
at  least  as  favorable  as  a  trading  corpo- 
ration, and,  a  fortiori,  a  municipal  corpo- 
ration "resides"  where  its  territory  is,  and 
where  all  its  constituents  reside.  Buck  v. 
Eureka,  97  Cal.  135;  31  Pac.  845. 

Right  of  corporations  to  change  of  venue. 
Where  a  suit  is  not  commenced  in  any  one 
of  the  counties  designated  in  §  16  of  article 


XII  of  the  constitution,  the  defendant  is 
entitled,  upon  motion  and  a  projjcr  show- 
ing, to  have  the  place  of  trial  changed  to 
the  county  of  its  principal  place  of  busi- 
ness. Cohn  V.  Central  Pacific  R.  R.  Co., 
71  Cal.  488;  12  Pac.  498;  California  South- 
ern R.  R.  Co.  v.  Southern  Pacifi"'  R.  R.  Co., 
65  Cal.  293;  4  Pac.  12;  Fresno  Xrit.  Bank 
V.  Superior  Court,  S3  Cal.  491;  24  Pac.  157. 
A  corporation,  on  being  sued  in  the  county 
where  the  liability  arose,  cannot  insist 
upon  a  change  of  venue  to  the  county  in 
which  it  has  its  principal  place  of  busi- 
ness. Trezevant  v.  W.  R.  Strong  Co.,  102 
Cal.  47;  3G  Pac.  395.  A  change  of  venue 
can  be  granted,  although  au  action  is 
brought  in  a  county  designate  1  by  the 
constitutional  rule  of  procedure;  luit  this 
change  cannot  be  made  on  the  ground, 
merely,  that  the  legislature  has  provided 
that  some  other  county  is  the  proper 
county  because  that  would  amount,  pro 
tanto,  to  a  legislative  repeal  of  a  constitu- 
tional provision:  grounds  for  such  change 
must  be  shown.  Miller  &  Lux  v.  Kern 
County  Land  Co.,  134  Cal.  586;  66  Pac. 
856;  Lewis  v.  South  Pacific  Coast  R.  R. 
Co.,  66  Cal.  209;  5  Pac.  79;  Fresno  Nat. 
Bank  v.  Superior  Court,  83  Cal.  491;  24 
Pac.  157;  Trezevant  v.  W.  R.  Strong  Co., 
102  Cal.  47;  36  Pac.  395.  The  plaintiff  is 
entitled  to  the  constitutional  right  to  sue 
a  corporation  in  the  county  where  the  con- 
tract was  made,  only  when  it  is  the  sole 
defendant;  but  where  the  plaintiff  joins  as 
defendant  one  residing  in  another  county, 
he  thereby  waives  the  benefit  of  the  pro- 
vision, and  cannot  dejirive  such  defendant 
of  his  right,  under  this  section,  to  have 
the  action  tried  in  the  county  of  his  resi- 
dence. Griffin  etc.  Co.  v.  Magnolia  etc. 
Fruit  Cannery  Co.,  107  Cal.  378;  40  Pac. 
495;  Brady  v.  Times-Mirror  Co.,  106  Cal. 
56;  39  Pac.  209;  Smith  v.  Smith,  88  Cal. 
572;  26  Pac.  356.  If  an  action  is  brought 
in  one  county,  for  the  conversion  of  goods 
by  a  corporation  having  its  principal  place 
of  business  in  another  county,  the  defend- 
ant, upon  demand  duly  made  therefor,  is, 
in  the  absence  of  a  counter-showing,  en- 
titled to  an  order  changing  the  place  of 
trial  to  the  county  of  his  residence.  Wong 
Fung  Hing  v.  San  Francisco  Relief  etc. 
Funds,  15  Cal.  App,  537;  115  Pac.  331.  If 
a  transitory  action  is  not  brought  in  the 
county  of  the  residence  of  personal  defend- 
ants, the  joinder  of  a  foreign  corporation 
as  a  co-defendant  will  not  prevent  a  change 
of  the  place  of  trial  to  the  county  of  their 
residence.  Pittman  v.  Carstenbrook,  11  Cal. 
App.  224;  104  Pac.  699. 

Right  to  change  of  venue.  It  is  the 
statutory  right  of  the  defendant  to  have 
the  place  of  trial  changed  to  the  county 
of  his  residence,  upon  proper  and  timely 
application,  there  being  no  counter-appli- 
cation to  have  the  trial  retained  for  the 
convenience  of  witnesses.   Bailey  v.  Sloan, 


§395 


PLACE  OF  TRIAL  OF  CIVIL   ACTIONS. 


27& 


65  Cal.  387;  4  Pac.  349.  The  test  of  the 
right  to  a  change  of  venue  is  to  be  made 
by  ascertaining  who  are  necessary  parties 
to  the  action  as  set  forth  in  the  complaint 
(Hellman  v.  Logan,  148  Cal.  58;  82  Pac. 
84S) :  and  the  right  to  the  change  must 
be  determined  by  the  condition  of  things 
existing  at  the  time  the  parties  claiming 
it  first  appeared  in  the  action.  Remington 
Sewing  Machine  Co.  v.  Cole,  62  Cal.  311; 
Ah  Fong  V.  Sternes,  79  Cal.  30;  21  Pac. 
381;  McKenzie  v.  Barling,  101  Cal.  459; 
36  Pac.  8.  When  a  local  is  joined  with  a 
transitory  cause  of  action,  the  defendant 
is  entitled,  under  this  section,  to  have  the 
place  of  trial  changed  to  the  county  of  his 
residence  (Smith  v.  Smith,  88  Cal.  572;  26 
Pac.  356;  Warner  v.  Warner,  100  Cal.  11; 
34  Pac.  523;  Bailey  v.  Cox,  102  Cal.  333;  36 
Pac.  650) ;  and  also  in  a  personal  action, 
to  recover  a  personal  judgment.  Anaheim 
Odd  Fellows'  Hall  Ass'n  v.  Mitchell,  6  Cal. 
App.  431;  92  Pac.  331.  If  all  the  defend- 
ants are  non-residents  of  the  county  in 
which  the  action  is  brought,  any  one  of 
them  is  entitled  to  a  change  of  the  place 
of  trial,  notwithstanding  the  opposition  of 
the  others.  Ludington  Exploration  Co.  v. 
La  Fortuna  etc.  Mining  Co.,  4  Cal.  App. 
369;  88  Pac.  290;  Wood  v.  Herman  Min- 
ing Co.,  139  Cal.  713;  73  Pac.  588;  but  see 
Mahler  v.  Drummer  Bov  Gold  Mining  Co., 
7  Cal.  App.  190;  93  Pac.  1064.  Where  the 
action  is  dismissed  as  to  certain  defend- 
ants, the  others  are  entitled  to  a  change 
of  venue  to  thQ  county  of  their  residence. 
Remington  Sewing  Machine  Co.  v.  Cole,  62 
Cal.  311. 

Defeat  of  right  to  change  of  venue. 
The  plaintiff  cannot  deprive  the  defendant 
of  the  right  to  a  change  of  venue,  under 
this  section,  by  joining  with  him,  as  a  de- 
fendant, one  who  resides  in  the  county 
where  the  action  is  brought,  but  against 
whom  no  cause  of  action  is  stated,  or  from 
whom  no  relief  is  demanded.  Savward  v. 
Houghton,  82  Cal.  628;  23  Pac.  120;  Mc- 
Kenzie V.  Barling,  101  Cal.  459;  30  Pac.  8; 
Brady  v.  Times-Mirror  Co.,  lOG  Cal.  56;  39 
Pac.  209;  Thompson  v.  Wood,  115  Cal.  301; 
47  Pac.  50;  McDonald  v.  California  Tim- 
ber Co.,  151  Cal.  159;  90  Pac.  548.  The 
joining,  as  a  party  defendant,  of  one 
against  whom  no  cause  of  action  is  stated, 
does  not  deprive  the  other  defendant  of 
the  right  to  have  the  action-  brought  in 
the  county  of  his  resi<lence;  nor  does  the 
joinder  of  a  person  as  a  defendant,  who 
refuses  to  become  a  plaintiff,  deprive  a 
non-resident  defendant  of  the  right  to  a 
change  of  the  place  of  trial  (Donohoe  v. 
Woostcr,  163  Cal.  114;  124  Pac.  730);  nor 
does  the  plaintiff's  ignorance  of  the  de- 
fendant's residence  debar  the  latter  of  his 
right  to  have  the  place  of  trial  changed 
to  the  county  of  his  residence.  Thurber 
v.  Thurber,  113  Cal.  607;  45  Pac.  852. 

Application  for  change  of  venue.  The 
jiarty  seeking  to  avail  Liniself  of  the  right 


granted  should  make  his  application  for 
the  change  of  venue  upon  his  first  appear- 
ance in  court  (Powell  v.  Sutro,  80  Cal.  559; 
22  Pac.  308);  otherwise  he  waives  it. 
Cook  V.  Pendergast,  61  Cal.  72;  Hearne- 
V.  De  Young,  111  Cal.  373;  43  Pac.  1108; 
Remington  Sewing  Machine  Co.  v.  Cole,  62 
Cal.  311.  Under  this  section,  and  §  396,. 
post,  but  one  right  is  given  to  a  defend- 
ant in  a  personal  action  to  move  to  change 
the  jilace  of  trial  of  the  action  to  the 
county  of  his  residence,  and  but  one  time 
is  fixed  when  he  may  assert  it;  even  then, 
only  upon  a  sufficient  showing  in  his  affi- 
davit of  merits  is  he  entitled  to  an  order 
therefor.  McNeill  &  Co.  v.  Doe,  163  Cal. 
338;  125  Pac.  345.  In  order  properly  to 
raise  the  issue  as  to  a  fraudulent  attempt 
to  prevent  a  change  of  venue,  as  by  a 
fraudulent  joinder  of  a  defemlant  for  that 
purpose,  the  fraud  should  be  distinctly 
specified  in  the  notice  of  motion.  Hender- 
son V.  Cohen,  10  Cal.  App.  580;  102  Pac- 
S2G. 

Granting  of  application.  In  an  action 
for  alimony,  the  defendant  has  the  right 
to  have  the  cause  tried  in  the  count.y  of 
his  residence,  and  an  application,  under 
this  section,  for  removal  thereto  must  be 
granted,  before  other  or  further  proceed- 
ings in  the  case.  Hennessv  v.  Nicol,  105 
Cal.  138;  38  Pac.  649.  Where  there  are 
two  or  more  defendants,  the  cause  is  prop- 
■erly  transferred  for  trial  to  the  county  of 
^the  residence  of  the  only  necessary  and 
proper  partv.  Hartley  v.  Fraser,  16  Cal- 
App.  560;  117  Pac.  683. 

Denial  of  application.  An  action  for 
damages  for  the  destruction  of  plaintiff's 
buildings  by  fire,  caused  by  negligence,  is 
triable  in  the  county  where  the  land  is 
situated;  and  the  defendants  cannot,  under 
this  section,  have  the  action  removed  to- 
the  countv  of  their  residence.  Las  Animas 
etc.  Land  Co.  v.  Fatjo,  9  Cal.  App.  318;  99 
Pac.  393.  A  motion  for  a  change  of  venue 
is  properly  denied,  where  one  of  the  de- 
fendants, whose  residence  is  in  the  county 
where  the  action  was  commenced,  is  a 
proper  party,  and  does  not  join  in  the  mo- 
tion. Paxton  V.  Paxton,  150  Cal.  667;  89 
Pac.  1083.  A  defendant  who  moves  for  a 
change  to  the  county  of  his  residence,  must 
show  by  his  moving-papers  that  none  of" 
the  other  defendants  reside  in  the  county 
in  which  the  action  is  brought,  or  the- 
motion  will  be  denied  (Greenleaf  v.  Jacks,. 
133  Cal.  506;  65  Pac.  1039);  and  the  motion 
will  also  be  denied  where  the  complaint 
fails  to  show  the  residence  of  the  defend- 
ant, if  he  does  not  prove  in  what  county 
he  resides.  Hearne  v.  De  Young,  111  Cal. 
373;  43  Pac.  1108.  If  any  of  the  defend- 
ants reside  in  the  county  in  which  the  suit 
is  brought,  a  motion  to  change  the  place 
of  trial  to  a  county  in  which  other  defend- 
ants reside  will  be  refused,  unless  all  of 
the  defendants  join  in  the  motion,  or  good 
reason    is    shown    why    they    have    not   so 


279 


ACTION  TRIABLE  WHERE — DEMURRER — CHANGE  OF  VENUE. 


§396 


joined.  McKenzie  v.  Barliup,  101  Cal.  459; 
36  Pac.  8;  Quint  v.  Dimond,  135  Cal.  572; 
67  Pat'.  1034;  Mahler  v.  Drummer  Boy 
Gold  Mining  Co.,  7  Cal.  App.  190;  93  Pac. 
1064;  Sullivan  v.  Lusk,  7  Cal.  App.  186; 
94  Pac.  91,  92. 

Discretion  of  court.  When  proper  appli- 
cation is  made  for  a  change  of  venue,  the 
court  has  no  discretion  to  refuse  to  hear 
the  motion,  or  to  impose  terms  as  a  con- 
(iition  precedent  to  the  hearing.  Hennessy 
V.  Nicol,  105  Cal.  138;  38  Pac.  649.  The 
discretion  of  the  court  in  granting  or  re- 
fusing a  motion  for  a  change  of  venue,  is 
not  always  controlling;  and  where  the  rec- 
ord discloses  no  reason  for  not  granting 
a  change  of  venue,  the  order  denying  the 
motion  cannot  be  justified  on  the  ground 
that  the  granting  of  such  orders  is  in  the 
discretion  of  thfe  court.  Carr  v.  Stern,  17 
Cal.  App.  397;  120  Pac.  35. 

Appeal.  An  order  refusing  to  grant  a 
change  of  venue,  where  one  of  the  defend- 
ants resides  in  the  county  in  which  the 
action  is  brought,  will  not  be  disturbed. 
Hirsehfeld  v.  Sevier,  77  Cal.  448;  19  Pac. 
819.  The  question  whether  a  defendant 
resides  in  the  county  to  which  a  transfer 
is  requested  is  to  be  determined,  primarily, 
by  the  court  in  which  the  action  is  insti- 
tuted, and  its  finding  will  not  be  disturbed 
on  appeal,  where  the  evidence  was  conflict- 
ing, though  it  was  entirely  documentary. 
Bradley  v.  Davis,   156   Cal.   267;   104  Pac. 


302;  Ifcnderson  v.  Cohen,  10  Cal.  App.  580; 
102  Pac.  826. 

Transfer  of  case.  The  court  to  which 
the  case  is  transferred  acquires  jurisdic- 
tion at  the  moment  the  court  transferring 
the  case  loses  jurisdiction,  (-'hase  v.  Su- 
jierior  Court,  154  Cal.  789;  99  i-'ac.  355. 

Trial  of  actions,  where  the  subject,  or 
some  part  tnereof,  is  situated.  See  note 
ante,  §  392. 

Constitutional  right  of  party  defendant  to  be 
sued  in  county  of  his  residence.  See  note  Ann. 
Cas.    1912C,   614. 

Venue  of  action  for  death  caused  by  negli- 
gence.   Sec  not.:-  4   L.  K.  A.    ( N.   8.)    20;'.. 

Venue  of  action  in  state  court  against  foreign 
corporation.    See  notf  70  L.  R    t^.   (N.  S.)   C'JG. 

CODE  COMMISSIONERS"  NOTE.  1.  Corpo- 
ration has  a  residence  where  its  principal  oflice 
or  pl.'ice  of  business  is  established,  and  is  in- 
ckulcfl  within  the  provisions  of  this  section. 
Jf-nkins  v.  California  Stage  Co.,  22  Cal.  53S ; 
see  also  Lousiville  R.  R.  Co.  v.  Letson,  2  How. 
(U.  S.)  497;  11  L.  Ed.  353:  Angell  and  Ames 
on   Corporations,   pp.   6,   265.  404-407,   440. 

2.  Action  tried  where  defendant  resides.  De- 
fendant hns  a  right  to  have  the  case  tried  in  the 
county  where  he  resides,  except  in  the  cases 
otherwise  provided  by  this  code.  Loehr  v.  La- 
tham,  15  Cal.  418. 

3.  When  a  public  officer  is  defendant.  See 
§  393,  ante,  and  note. 

i.  Not  applicable  to  probate  proceedings.  This 
section  does  not  ap])lv  to  probate  proceedings. 
See  Estate  of  Scott,  15  Cal.  220. 

5.  Habeas  corpus  not  to  run  out  of  county. 
The  writ  of  habeas  corpus  should  not  issue  to 
run  out  of  the  county,  unless  for  good  cause 
shown,  as  the  absence,  disability,  or  refusal  to 
act  of  the  local  judge,  or  other  reason  showing 
that  the  object  and  reason  of  the  law  requires 
its  issuance.     Ex   parte  Ellis,  11  Cal.  225. 


§  396.  Action  may  be  tried  in  any  county,  unless  the  defendant  demand 
a  trial  in  the  proper  county.  If  the  comity  in  which  the  action  is  commenced 
is  not  the  proper  county  for  the  trial  thereof,  the  action  may,  notwithstand- 
ing, be  tried  therein,  unless  the  defendant,  at  the  time  he  answers  or  demurs, 
files  an  affidavit  of  merits,  and  demands,  in  writing,  that  the  trial  be  had  in 
the  proper  county. 

ticular  case,  determine  whether  there  has 
been  undue  delay.  Pascoe  v.  Baker,  158 
Cal.  232;  110  Pac.  815.  The  right  to  a 
change  of  the  place  of  trial  is  a  mere  privi- 
lege, and  is  waived  by  failure  to  make 
application  therefor  at  the  proper  time 
(Cook  v.  Pendergast,  61  Cal.  72;  Reming- 
ton Sewing  Machine  Co.  v.  Cole,  62  Cal. 
311;  Ah  Fong  v.  Sternes,  79  Cal.  30;  21 
Pac.  381;  Powell  v.  Sutro,  80  Cal.  559;  22 
Pac.  308;  Pennie  v.  Visher,  94  Cal.  323;  29 
Pac.  711;  Herd  v.  Tuohy,  133  Cal.  55;  65 
Pac.  139;  Bell  v.  Camm,  10  Cal.  App.  388; 
102  Pac.  225);  but  the  right  is  not  waived 
by  filing  an  amended  demurrer.  Pittman 
V.  Carstenbrook,  11  Cal.  App.  224;  104  Pac. 
699.  The  defendant  does  not  appear  and 
demur,  within  the  meaning  of  this  section, 
until  he  files  the  demurrer;  and  it  is  suffi- 
cient to  file  the  notice,  affidavit,  and  de- 
man<l  at  the  same  time  with  the  filing  of 
the  demurrer  (Fletcher  v.  Magiunis,  136 
Cal.  362;  68  Pac.  1015);  but  it  comes  too 
late  after  the  demurrer  is  amended.   Union 


Legislation  §  396.    1.  Enacted  March  11,  1S72. 

2.  Amendment  by  Stats.  1901,  p.  129;  un- 
constitutional.     See  note  ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  701;  the  code 
commissioner  saying,  "The  words  'appears  and' 
are  omitted  before  the  word  'answers.'  as  super- 
fluous." 

Application  of  section.  This  section  is 
applicable  to  actions  brought  by  the  state. 
State  V.  Campbell,  3  Cal.  App.  602;  86  Pac. 
840. 

Actions  according  to  residence  of  par- 
ties.    See  note  ante,  §  395. 

When  application  for  change  of  venue 
must  be  made.  An  application  for  a 
change  of  the  place  of  trial  must  be  made 
by  the  defendant  in  his  answer,  or  con- 
temporaneously with  the  filing  of  the  an- 
swer of  a  demurrer  (Cook  v.  Pendergast, 
61  Cal.  72;  Tooms  v.  Randall,  3  Cal.  438; 
Reyes  v.  Sanford,  5  Cal.  117;  Pearkes  v. 
Freer,  9  Cal.  642;  Jones  v.  Frost,  28  Cal. 
245;  Mahe  v.  Reynolds,  38  Cal.  560);  and 
must  be  prosecuted  with  diligence;  but  the 
trial  court  must,  upon  the  facts  of  the  par- 


396 


PLACE  OF  TRL\L  OF  CIVIL  ACTIONS. 


280 


Lumber  Co.  v.  Metropolis  Construction  Co., 
13  Cal.  App.  5S4;  110  Pac.  329.  Tiie  de- 
fendant must  also  appear,  and  demur  or 
answer,  at  the  same  time  that  he  makes 
his  application  for  a  change  of  the  place 
of  trial.  Nicholl  v.  Nicholl,  66  Cal.  36;  4 
Pac.  SS2;  Bagley  v.  Cohen,  121  Cal.  604; 
53  Pac.  1117.  If  the  grounds  upon  which 
the  motion  is  made  appear  upon  the  face 
of  the  complaint,  the  demand  sliould  be 
made  at  or  before  the  time  of  filing  the 
demurrer,  or  the  motion  will  be  deemed 
waived.  Pearkes  v.  Freer,  9  Cal.  612.  A 
fraudulent  joinder  of  a  fictitious  defend- 
ant, for  the  purpose  of  defeating  the  real 
defendant's  right  to  have  the  cause  re- 
moved to  the  proper  county  for  trial,  will 
not  prevent  the  real  defendant,  upon  mo- 
tion, from  securing  a  removal  of  the  cause 
to  the  proper  county;  and  where  fraud  in 
joining  a  resident  of  the  county  to  prevent 
removal  is  the  ground  of  the  motion,  it 
should  be  distinctly  specified  in  the  notice. 
McDonald  v.  California  Timber  Co.,  151 
Cal.  159;  90  Pac.  548.  An  action  com- 
menced in  a  justice's  court,  and  trans- 
ferred to  the  superior  court,  cannot  be 
transferred  to  the  county  of  the  defend- 
ant's residence,  where  the  demand  was  not 
made  at  the  time  of  his  appearance  in  the 
justice's  court.  Powell  v.  Sutro,  80  Cal. 
559;  22  Pac.  308.  A  demurrer  or  answer 
to  an  amended  complaint,  by  a  defendant 
who  has  demurred  to  the  original  com- 
plaint, does  not  constitute  a  first  appear- 
ance, within  this  section;  the  filing  of  an 
amended  complaint  is  not  the  commencing 
of  a  new  action.  Jones  v.  Frost,  28  Cal. 
245.  A  defendant  who  demurs  to  a  com- 
plaint without  answering  must  demand  a 
transfer  before  or  when  he  demurs.  Cook 
V.  Pendergast,  61  Cal.  72.  The  plaintiff 
cannot  resist  a  motion  for  change  of  venue, 
made  on  the  ground  that  the  action  was 
not  commenced  in  the  proper  county,  by  a 
showing  of  convenience  of  witnesses,  un- 
less an  answer  has  been  filed  and  issue 
,1oined.  Cook  v.  Pendergast,  61  Cal.  72. 
An  order  refusing  to  change  the  place  of 
trial,  made  upon  conflicting  affidavits,  is 
not  reviewable.  Bernon  v.  Bernon,  15  Cal. 
App.  3-11;  114  Pao.  1000. 

Affidavit  of  merits.  To  make  a  prima 
facie  sho'.ving  on  advice  of  counsel,  the 
affidavit  of  merits  should  state  that  the 
defendant  fully  and  fairly  stated  "all  the 
facts  of  the  case"  to  his  counsel,  and  that, 
after  making  such  statement,  he  was  ad- 
vise<l  by  such  counsel  that  he  had,  and 
that  he  verily  believes  that  he  has,  a  good 
and  substantial  defense  to  the  action  upon 
the  merits;  but  where  the  affidavit  alleges 
that  he  has  stated  fully  and  fairly  "the 
case,"  it  is  sufficient  (Woodward  v.  Backus, 
20  Cal.  137;  Reidy  v.  Scott,  53  Cal..  69; 
Rowland  v.  Coyne,  55  Cal.  1;  Watkins  v. 
Degener,  63  Cal.  500;  Buell  v.  Dodge,  63 
Cal.  553;  Eathgeb  v.  Tiscornia,  66  Cal.  96; 


4  Pac.  987;  Nolan  v.  McDuffie,  125  Cal. 
334;  58  Pac.  4);  but  an  affidavit  that  the 
defendant  has  stated  "his"  case  is  not  suffi- 
cient. Nickerson  v.  California  Raisin  Co., 
61  Cal.  268;  People  v.  Larue,  66  Cal.  235; 

5  Pac.  157;  Morgan  v.  McDonald,  70  Cal. 
32;  11  Pac.  350.  Belief  in  the  advice  of 
the  attorney  need  not  be  stated.  Watt  v. 
Bradley,  95  Cal.  415;  30  Pac.  557.  The 
terms  "attorney,"  "counselor,"  and  "attor- 
ney at  law"  are  used  synonymously.  Pitt- 
man  V.  Carstenbrook,  11  Cal.  App.  224;  104 
Pac.  699.  An  affidavit  by  one  of  several 
defendants,  in  behalf  of  all,  is  sufficient 
(Rowland  v.  Coyne,  55  Cal.  1;  Watkins  v. 
Degener,  63  Cal.  500;  People  v.  Larue,  66 
Cal.  235;  5  Pac.  157;  Palmer  &  Rey  v. 
Barclay,  92  Cal.  199;  28  Pac.  226;  Mc- 
Sherry  v.  Pennsylvania  etc.  Mining  Co., 
97  Cal.  637;  32  Pac.  711;  Wood  v.  Herman 
Mining  Co.,  139  Cal.  713;  73  Pac.  588); 
as  is  also  an  affidavit  by  a  party's  attor- 
ney if  it  shows  the  merits,  and  adequate 
excuse  for  not  being  made  by  the  defend- 
ant personally  (Nicholl  v.  Nicholl,  66  Cal. 
36;  4  Pac.  SS2) ;  but  such  an  affidavit  is 
insufficient,  where  the  attorney  does  not 
state  that  he  knows  the  facts  of  the  case, 
or  that  the  defendant  has  fully  and  fairly 
stated  his  whole  case  to  him,  or  fails  to 
state  a  good  excuse  for  the  failure  of  the 
defendant  personally  to  make  it.  Bailey  v. 
Taaffe,  29  Cal.  422.  An  insufficient  affi- 
davit may  be  amended  after  the  time  of 
appearing  and  demurring  or  answering, 
and  by  a  defendant  other  than  he  who  first 
made  the  affidavit.  Palmer  &  Rey  v.  Bar- 
clay, 92  Cal.  199;  28  Pac.  226;  Nolan  v. 
McDuffie,  125  Cal.  334;  58  Pac.  4.  The 
omission  of  the  title  of  the  cause  or  court 
will  not  invalidate  the  affidavit,  where  the 
action  is  intelligently  referred  to  therein. 
Watt  V.  Bradley,  95  Cal.  415;  30  Pac.  557. 
The  transfer,  when  title  to  real  estate  is 
involved,  should  be  made  on  mere  sug- 
gestion; it  is  unnecessary  to  file  an  affi- 
davit. Fritts  V.  Camp,  94  Cal.  393;  29  Pac. 
867.  If  the  complaint  does  not  show  the 
residence  of  the  defendant,  the  burden  of 
proof  is  cast  upon  him  to  show  the  county 
of  his  residence,  if  he  would  secure  a 
change  of  venue;  and  if  there  are  several 
defenilants,  he  must  show  that  none  of 
them  are  residents  of  the  county  in  which 
the  action  is  brought.  Hearne  v.  De  Young, 
111  Cal.  373;  43  Pac.  1108;  Greenleaf  v. 
Jacks,  133  Cal.  506;  65  Pac.  1039;  Green- 
leaf  v.  Jack,  135  Cal.  154;  67  Pac.  17; 
Quint  V.  Dimond,  135  Cal.  572;  67  Pac. 
1034;  Modoc  County  v.  Madden,  136  Cal. 
134;  68  Pac.  491.  WTien  the  application  is 
made  on  the  ground  of  convenience  of  wit- 
nesses, an  affidavit  of  merits  is  not  re- 
quired (Pascoe  V.  Baker,  158  Cal.  232;  110 
Pac.  815) ;  nor  is  the  afildavit  required  on 
a  motion  by  the  plaintiff  for  a  retransfer 
of  the  ease.  Pascoe  v.  Baker,  158  Cal.  232; 
110  Pac.  815. 


281 


DEMAND  IN  WRITING,  AND  AFFIDAVIT  OF   MERITS. 


§396 


Demand  in  writing,  and  affidavit  of 
merits.  To  secure  a  change  of  place  of 
trial,  there  must  be  a  demand  in  writing 
and  an  affidavit  of  merits;  the  affidavit  of 
merits  may  be  amended.  Jaques  v.  Owens, 
18  Cal.  App.  114;  122  Pac.  430.  The  pro- 
cedure for  asserting  the  right  to  a  change 
of  place  of  trial,  is  not  regulated  solely  by 
this  section,  but  by  §  397,  Dost,  also.  Bohn 
V.  Bohn,  104  Cal.  532;  129  Pac.  981.  On  ap- 
peal from  an  order  changing  the  place  of 
trial,  the  record  should  show  the  demand 
for  the  change,  and  also  whether  the  re- 
spondent had  answered  or  demurred  at  the 
time  he  filed  his  affidavit  of  merits  and 
inade  demand  for  such  change.  Harrison  v. 
Cousins,  16  Cal.  App.  515;  117  Pac.  564. 
The  effect  of  the  demand  and  motion  is  to 
intercept  all  judicial  action,  and  to  suspend 
the  power  of  the  court  to  act  upon  any  other 
question,  until  it  has  been  determined;  the 
hearing  cannot  be  postponed  until  the  an- 
swer is  filed,  nor  for  the  purpose  of  per- 
mitting the  plaintiff's  cross-motion  to  be 
heard  at  the  same  time;  nor  can  the  court 
rule  upon  the  demurrer  filed,  or  consider 
the  propriety  of  the  amendment  to  the 
complaint,  or  impose  any  terms  as  a  con- 
dition for  the  transfer  of  the  case;  the 
defendants  are  entitled  to  have  the  motion 
determined  upon  the  conditions  existing 
at  the  time  of  their  appearance,  and  to 
have  all  judicial  action  in  the  case  deter- 
mined in  the  superior  court  of  the  proper 
countv.  Heald  v.  Hendy,  65  Cal.  321;  4 
Pac.  27;  Ah  Fong  v.  Sternes.  79  Cal.  30; 
21  Pac.  381;  Hennessv  v.  Nicol,  105  Cal. 
138;  38  Pac.  649;  Griffin  etc.  Co.  v.  Mag- 
nolia etc.  Fruit  Cannery  Co.,  107  Cal.  378; 
40  Pac.  495;  Thurber  v.  Thurber,  113  Cal. 
607;  45  Pac.  852;  Nolan  v.  McDuffie,  125 
Cal.  334;  58  Pac.  4.  Actions  involving  real 
estate  must  be  transferred  on  demand:  the 
court  has  no  discretion.  "Watts  v.  White, 
13  Cal.  321.  The  convenience  of  witnesses 
should  be  considered,  and  the  motion  denied 
if  the  convenience  of  witnesses  or  the  ends 
of  justice  require  that  the  action  be  re- 
tained in  the  county  where  the  action  is 
pending.  Loehr  v.  Latham,  15  Cal.  418; 
Jenkins  v.  California  Stage  Co.,  22  Cal. 
537;  Hanchett  v.  Finch,  47  Cal.  192;  Ed- 
wards V.  Southern  Pacific  R.  R.  Co.,  48 
Cal.  460;  Hall  v.  Central  Pacific  R.  R.  Co., 
49  Cal.  454;  Reavis  v.  Cowell,  56  Cal.  588. 
All  the  defendants  must  join  in  the  de- 
mand, in  personal  actions  (Pieper  v.  Cen- 
tinela  Land  Co.,  56  Cal.  173;  Remington 
Sewing  Machine  Co.  v.  Cole,  62  Cal.  311; 
McKenzie  v.  Barling,  101  Cal.  459;  36  Pac. 
8) ;  but  a  defendant  against  whom  no  re- 
lief is  sought,  or  who  is  improperly  joined, 
need  not  unite  in  a  demand,  or  be  consid- 
ered in  determining  the  proper  countv  of 
the  trial.  Buell  v.  Dodge,  57  Cal.  645;  Rem- 
ington Sewing  Machine  Co.  v.  Cole,  62  Cal. 
311;  Savward  v.  Houghton,  S2  Cal.  628; 
McKenzie  v.  Barling.  101  Cal.  459;  36  Pac. 
8j    Bailey   v.   Cox,    102    Cal.   333;    36   Pac. 


650;  Brady  v.  Times  Mirror  Co.,  106  Cal. 
56;  39  Pac.  209.  Persons  properly  plain- 
tiffs, and  made  defendants  without  any 
allegation  that  they  refused  to  join  the 
jtlaintitF  in  commencing  the  suit,  shouM 
not  be  considered  in  determining  the  ajipli- 
cation  by  other  defendants  for  a  change  of 
venue  on  the  ground  of  residence.  Read 
V.  San  Diego  Union  Co.,  6  Cal.  Uurep.  703; 
65  Pac.  567.  The  question  as  to  who  are 
proper  and  necessary  defendants  must  be 
determined  from  the  complaint;  and  the 
effect  of  the  complaint  cannot  be  varieii 
by  the  affidavit  filed.  McKenzie  v.  Bar- 
ling, 101  Cal.  459;  36  Pac.  8;  Quint  v. 
Dimond,  135  Cal.  572;  67  Pac.  1034;  and 
see  Lakeshore  Cattle  Co.  v.  Modoc  Land 
etc.  Co.,  lOS  Cal.  261;  41  Pac.  472;  Bowers 
v.  Modoe  Land  etc.  Co.,  117  Cal.  50;  48 
Pac.  979.  Only  those  who  are  residents 
of  the  state  need  join  in  the  demand  to 
change  the  place  of  trial  (Banta  v.  Wink, 
119  Cal.  78;  51  Pac.  17);  and  only  the  de- 
fendants who  are  served,  or  who  have  ap- 
peared, need  join  in  the  demand  (Rathgeb 
V.  Tiscornia,  66  Cal.  96;  4  Pac.  987;  Mc- 
Sherry  v.  Pennsylvania  etc.  Mining  Co., 
97  Cal.  637;  32  Pac.  711;  Wood  v.  Herman 
Mining  Co.,  139  Cal.  713;  73  Pac.  5SS); 
but  all  necessary  defendants  who  have 
been  served,  or  who  have  appeared,  must 
join  in  the  motion  where  the  action  is 
brought  in  the  proper  countv.  Pittman  v. 
Carstenbrook,  11  Cal.  App.  "224;  104  Pac. 
699.  Defendants  who  have  appeared  and 
demanded  the  change  of  place  of  trial  to 
the  county  of  their  residence,  cannot  be 
deprived  of  the  right  by  other  defendants, 
who  appear  after  the  demand  and  consent 
to  a  trial  in  the  county  where  the  action 
was  commenced,  if  it  affirmatively  appears 
that  no  defendants  reside  in  the  county. 
Wood  V.  Herman  Mining  Co.,  139  Cal.  713; 
73  Pac.  588;  Pieper  v.  Centinela  Land  Co., 
56  Cal.  173.  The  demand  of  a  defendant 
sued  under  his  true  name,  with  others  sued 
under  fictitious  names,  the  return  of  sum- 
mons showing  service  on  the  former  only, 
and  the  affidavit  showing  that  all  the  de- 
fendants are  residents  of  another  county, 
cannot  be  defeated  by  the  subsequent  re- 
turn of  an  alias  summons,  stating  that  one 
of  the  defendants  sued  under  a  fictitious 
name  is  a  resident  of  the  county  in  which 
the  action  is  brought,  in  the  absence  of 
an  amendment  of  the  complaint  describ- 
ing him  under  his  true  name,  and  of  an 
affidavit  or  a  showing  by  the  plaintiff  as 
to  the  person  intended  to  be  sued  under 
such  fictitious  name.  Bachman  v.  Cathry, 
113  Cal.  498;  45  Pac.  814;  Alameda  Countv 
V.  Crocker,  125  Cal.  101;  57  Pac.  766.  AJl 
the  defendants  must  join  in  the  demand, 
or  sufficient  reason  must  be  shown  for  fail- 
ure to  join,  or  it  must  be  made  to  appear 
that  those  who  have  not  joined  are  not 
jiroper  parties.  Piejter  v.  Centinela  Land 
Co.,  56  Cal.  173;  McKenzie  v.  Barling,  101 
Cal.  459;  36  Pac.  8;  Wood  v,  Herman  Min- 


§396 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


282 


ing  Co.,  139  Cal.  713;  73  Pac.  58S.  The 
discretion  of  the  court  in  determining  the 
motion  for  a  change  of  the  place  of  trial, 
on  the  ground  of  the  convenience  of  wit- 
nesses, will  not  be  disturbed,  where  no 
abuse  of  discretion  is  shown.  Pascoe  v. 
Baker,  158  Cal.  232;  110  Pac.  81.5.  A 
party  may,  either  expressly  or  by  impli- 
cation, waive  his  right  to  have  a  cause 
tried  in  a  particular  countv.  Hearne  v. 
De  Young,  111  Cal.  373;  43  Pac.  1108.  If 
the  county  in  which  the  action  is  com- 
menced is  not  the  proper  place  for  the 
trial  thereof,  the  only  remedy  of  the  de- 
fendant is  a  demand  for  a  change  of  venue, 
and  if  he  fails  to  demand  the  transfer,  he 
waives  objection  to  the  venue.  Herd  v. 
Tuohy,  133  Cal.  .55;  65  Pac.  139. 

Actions  against  corporations.  The  pro- 
visions of  §  16  of  article  XII  of  the  con- 
stitution, as  to  the  jurisdiction  of  corpo- 
rations, are,  in  effect,  permissive,  and  were 
intended  to  give  the  plaintiff  the  right 
to  select  the  county  in  which  to  try  the 
action;  and  the  superior  court  of  any 
county  in  the  state  is  not,  by  that  section, 
deprived  of  jurisdiction  to  hear  all  classes 
of  actions  generally  within  the  limits  of 
the  jurisdiction  conferred  upon  it  by  §  5 
of  article  "VT.  Bond  v.  Karma-Ajax  Consol. 
Mining  Co.,  15  Cal.  App.  469;  115  Pac.  254. 
Whether  affidavits  contradicting  the  com- 
plaint as  to  the  county  where  the  alleged 
liability  of  a  corporation  was  incurred  can 
be  used  to  vary  or  contradict  the  allega- 
tions of  the  complaint,  has  not  been  de- 
cided, except  where  the  order  has  been  sus- 
tained on  the  ground  of  a  conflict  of  evi- 
dence. Lake  Shore  Cattle  Co.  v.  Modoc 
Land  etc.  Co.,  108  Cal.  261;  41  Pac.  472; 
Bowers  v.  Modoc  Land  etc.  Co.,  117  Cal. 
50;  48  Pac.  979;  Brown  v.  San  Francisco 
Sav.  Union,  122  Cal.  648;  55  Pac.  598;  but 
see  McSherry  v.  Pennsvlvania  etc.  Mining 
Co.,  97  Cal.  637;  32  Pac.  711.  The  affi- 
davit, where  the  facts  contained  therein 
are  not  in  the  complaint,  or  are  stated  as 
conclusions,  may  be  used  to  show  the 
county  where  the  contract  was  made  or 
was  to  be  performed,  or  where  the  obli- 
gation or  liability  arose  or  the  breach 
occurred,  or  the  location  of  the  principal 
business  place  of  the  defendant  corpora- 
tion. Ivey  v.  Kern  Countv  Land  Co.,  115 
Cal.  196,  197;  46  Pac.  926;  Byrum  v.  Stock- 
ton etc.  Agricultural  Works,  91  Cal.  657; 
27  Pac.  1093.  If  the  county  in  which  the 
action  was  brought  is  not  the  county  where 
the  contract  was  made  or  was  to  be  per- 
formed, or  in  which  the  obligation  or  lia- 
bility was  incurred  or  the  breach  occurred, 
the  defendant  corporation  is  entitled  to  a 
change  of  the  fdace  of  trial  to  the  county 
where  its  jirinei7>al  plar-e  of  business  is 
located.  Cohn  v.  Central  Pacific  R.  R.  Co., 
71  Cal.  488;  12  Pac.  49S.  The  defendant 
corporation  cannot  require  a  change  of  the 
place  of  trial  to  the  county  where  its  prin- 
cipal place  of  business  is  located,  merely 


because  it  is  the  place  of  its  residence;  for 
the  constitution  gives  to  the  plaintiff  the 
right  to  sue  the  corporation  in  any  of 
the  counties  therein  referred  to:  1.  Where 
the  contract  is  made;  2.  Where  it  is  to  be 
performed;  3.  Where  the  obligation  or  lia- 
bility arises;  4.  Where  the  breach  occurs; 
and  5.  In  the  county  where  the  princi- 
pal place  of  business  is  situated;  and  the 
option  thus  given  includes  more  than  the 
bare  right  to  choose  the  county  where 
the  complaint  shall  be  filed  in  the  first  in- 
stance; it  confers  also  upon  the  plaintiff 
the  right  to  prosecute  such  action  in  the 
county  where  it  is  commenced,  unless  the 
place  of  trial  is  changed  for  some  other 
reason  than  that  of  the  residence  of  the 
defendant.  Miller  &  Lux  v.  Kern  County 
Land  Co.,  134  Cal.  5S6;  66  Pac.  856;  and 
see  also  Lewis  v.  South  Pacific  Coast  R.  R. 
Co.,  66  Cal.  209;  5  Pac.  79;  Fresno  Nat. 
Bank  v.  Superior  Court,  83  Cal.  491;  24 
Pac.  157;  Trezevant  v.  W.  R.  Strong  Co., 
102  Cal.  47;  36  Pac.  395;  Ivey  v.  Kern 
County  Land  Co.,  115  Cal.  196;  46  Pac. 
926;  Brown  v.  San  Francisco  Sav.  Union, 
122  Cal.  648;  55  Pac.  598;  C.  E.  \Vhitney 
&  Co.  V.  Sellers'  Commission  Co.,  130  Cal. 
188;  62  Pac.  472;  Bank  of  Yolo  v.  Sperry 
Flour  Co.,  141  Cal.  314;  65  L.  R.  A.  90; 
74  Pac.  855.  The  joinder  of  other  defend- 
ants, in  an  action  against  a  corporation, 
is  a  waiver  by  the  plaintiff  of  his  right  to 
have  the  action  tried  in  the  counties  desig- 
nated by  the  constitution;  and  the  proper 
place  of  trial  must  be  determined  by  the 
provisions  of  the  code.  Brady  v.  Times 
Mirror  Co.,  106  Cal.  56;  39  Pac.  209;  Grif- 
fin etc.  Co.  V.  Magnolia  etc.  Fruit  Cannery 
Co.,  107  Cal.  378;  40  Pac.  495;  Miller  & 
Lux  V.  Kern  County  Land  Co.,  134  Cal. 
586;  66  Pac.  856;  Aisbett  v.  Paradise 
Mountain  Mining  etc.  Co.,  21  Cal.  App. 
267;  131  Pac.  776.  A  foreign  corporation 
may  be  sued  in  any  county  in  the  state; 
and  having  no  residence  in  any  county  in 
the  state,  it  cannot  demand  transfer  on 
the  ground  of  residence.  Thomas  v.  Placer- 
ville  etc.  Mining  Co.,  65  Cal.  600;  4  Pac. 
641.  A  municipal  corporation  resides  in 
the  county  wherein  its  territory  lies,  within 
the  meaning  of  this  section,  and  may  de- 
mand that  the  trial  be  held  in  the  county 
of  its  residence.  Buck  v.  Eureka,  97  Cal. 
135;  31  Pac.  845. 

Proper  county.  The  "proper  county"  is 
the  county  in  which  actions  are  required 
to  be  tried,  "subject  to  the  power  of  the 
court  to  change  the  place  of  trial"  by 
§§  392,  393,  394,  395,  ante.  Cook  v.  Pender- 
gast,  61  Cal.  72;  Paige  v,  Carroll,  61  Cal. 
215. 

Jurisdiction.  Generally,  the  jurisdiction 
of  the  court  is  not  affected  by  the  fact 
that  the  action  was  not  commenced  in  the 
proper  county  (Herd  v.  Tuohy,  133  Cal. 
55;  65  Pac.  139;  Miller  &  Lux  v.  Kern 
County  Land  Co.,  140  Cal.  132;  73  Pac. 
836) ;   but  actions  to  recover  realty  must 


283 


PERSONAL  AND  TRANSITORY   ACTIONS. 


§396 


te  commenrod  in  the  county  where  the 
property  is  situateii,  othorvviso  the  court 
is  without  jurisiliction,  and  the  case  must 
be  dismissed;  change  of  place  of  trial  is 
not  the  proper  remedy,  under  such  circum- 
stances (Urton  V.  Woolsey,  87  Cal.  38; 
25  Pac.  154;  Fritts  v.  Camp,  94  Cal.  393; 
29  Pac.  867;  Pacific  Yacht  Club  v.  Sau- 
salito  Bay  Water  Co.,  98  Cal.  4S7;  33  Pac. 
322;  Waters  v.  Pool,  130  Cal.  136;  62  Pac. 
385;  Herd  v.  Tuohy,  133  Cal.  55;  65  Pac. 
139),  and  a  motion  to  tiismiss  for  want  of 
jurisdiction  is  not  waived  by  the  subse- 
quent filing  of  a  demurrer,  answer,  or  de- 
mand for  a  change  of  venue.  Fresno  Nat. 
Bank  v.  Superior  Court,  83  Cal.  491;  24 
Pac.  157.  Where  an  action  to  procure  the 
cancellation  of  agreements  relating  to  land 
situated  in  several  counties  is  commenced 
in  one  of  such  counties,  the  defendant  can- 
not, by  disclaiming  any  interest  in  the 
land  situated  in  such  county,  demand  a 
change  of  the  place  of  trial  to  the  county 
of  his  residence,  in  which  part  of  the  land 
is  situated.  Pennie  v.  Visher,  94  Cal.  323; 
29  Pac.  711.  Where  a  new  county  is 
created  after  the  commencement  of  an 
action  to  enforce  a  lien  upon  real  estate, 
the  court  is  not  divested  of  jurisdiction,  if 
such  real  estate  is  situated  in  the  new 
county.  Security  Loan  etc.  Co.  v.  Kauff- 
man,  108  Cal.  214;  41  Pac.  467. 

Personal  and  transitory  actions.  If  the 
•complaint  be  regarded  as  stating  two  sepa- 
rate causes  of  action,  upon  one  of  which 
the  defendant  would  be  entitled  to  a 
change  of  venue,  but  not  upon  the  other, 
it  should  be  construed  most  strongly 
against  the  plaintiff,  and  the  defendant's 
demand  for  a  change  of  venue  should  be 
granted.  Ah  Fong  v.  Sternes,  79  Cal.  30; 
21  Pac.  381;  Brady  v.  Times  Mirror  Co., 
106  Cal.  56;  39  Pac.  209;  Griffin  etc.  Co. 
■V.  Magnolia  etc.  Fruit  Cannery  Co.,  107 
Cal.  378;  40  Pac.  495.  Conditions  exist- 
ing at  the  time  of  the  appearance,  so  far 
as  the  pleadings  are  concerned,  determine 
the  proper  county  for  the  trial  of  personal 
actions;  the  dismissal  of  the  action  against 
a  co-defendant,  who  did  not  join  in  the 
demand,  after  demand  and  motion  have 
been  made,  cannot  confer  the  right  to  a 
change.  Remington  Sewing  Machine  Co. 
V.  Cole,  62  Cal.  311;  Ah  Fong  v.  Sternes, 
79  Cal.  30;  21  Pac.  381.  The  fact  that 
some  of  the  defendants  are  non-residents 
of  the  state  does  not  deprive  the  other 
defendants  of  the  right  to  have  the  case 
tried  in  the  county  in  which  they,  or  some 
of  them,  reside  at  the  commencement  of  • 
the  action.  Banta  v.  Wink,  119  Cal.  7S; 
51  Pac.  17.  All  actions  for  the  recovery 
of  money  must  be  tried  in  the  county 
where  the  defendant  resides,  unless  he 
directly  or  impliedly  consents  to  a  trial 
elsewhere.  State  v.  Campbell,  3  Cal.  App. 
602;  86  Pac.  840.  An  action  for  fraud  in 
the  sale  of  stock  is  personal  and  transitory, 
and  not  within  this  section.    Krogh  v.  Pa- 


cific  Gateway   etc.   Co.,  11   Cal.   App.   237; 

104  Pac.  698.  The  place  for  commencing 
the  action  is  not  necessarily  the  proper 
county  for  the  trial.  Hancock  v.  Burton, 
61  Cal.  70;  Warner  v.  Warner,  100  Cal.  11; 
34  PaQ.  523;  Duffy  v.  Duffy,  104  Cal.  602; 
38  Pac.  443;  Staacke  v.  Bell,  125  Cal.  309; 
57  Pac.  1012.  If  the  case  is  not  one  of 
those  mentioned  in  §§  392,  393,  and  394, 
ante,  the  residence  of  the  defendant  is 
the  proper  county  for  the  trial;  and  if  the 
action  has  been  commenced  elsewhere,  it 
is  the  right  of  the  defendant  to  have  the 
place  of  trial  changed  to  the  proper  county: 
the  statute  is  peremptory,  and  the  court 
has  no  discretion  in  the  matter.  Watkins 
V.  Degener,  63  Cal.  500;  McFarland  v.  Mar- 
tin, 144  Cal.  771;  78  Pac.  239;  Loehr  v. 
Latham,  15  Cal.  418;  Smith  v.  Smith,  83 
Cal.  572;   26  Pac.  356;   Hennessy  v.   Nicol, 

105  Cal.  138;  38  Pac.  649;  Thurber  v.  Thur- 
ber,  113  Cal.  607;  45  Pac.  852;  Booker  v. 
Aitken,  140  Cal.  471;  74  Pac.  11;  Schilling 
V.  Buhne,  139  Cal.  611;  73  Pac.  431.  The 
county  of  the  residence  of  one  proper  and 
necessary  defendant  is  a  proper  county  for 
the  trial.  Hirschfeld  v.  Sevier,  77  Cal. 
448;  19  Pac.  819;  McKenzie  v.  Barling,  101 
Cal.  459;  36  Pac.  8;  Hearne  v.  De  Young, 
111  Cal.  373;  43  Pac.  1108;  Greenleaf  v. 
Jacks,  133  Cal.  506;  65  Pac.  1039;  Quint 
v.  Dimond,  135  Cal.  572;  67  Pac.  1034; 
Modoc  County  v.  Madden,  136  Cal.  134;  68 
Pac.  491.  The  consent  of  resident  defend- 
ants to  a  change  to  a  county  which  would 
be  the  proper  county  as  to  the  other  de- 
fendants were  they  not  joined,  does  not 
make  it  obligatory  upon  the  court  to  order 
the  transfer.  Hirschfeld  v.  Sevier,  77  Cal. 
448;  19  Pac.  819;  Greenleaf  v.  Jack,  135 
Cal.  154;  67  Pac.  17.  One  involuntarily 
substituted  as  the  solo  defendant  in  an 
action  is  entitled  to  a  change  of  the  place 
of  trial  to  the  county  of  his  residence,  not- 
withstanding the  failure  of  the  original  de- 
fendant to  demand  such  a  change.  Howell 
V.  Stetefeldt  Furnace  Co.,  69  Cal.  153;  10 
Pac.  390.  An  association  of  persons,  al- 
though not  formally  a  corporation,  may  be 
sued  in  the  county  where  its  liability  arose. 
Kendrick  v.  Diamond  Creek  etc.  Mining 
Co.,  94  Cal.  137;  29  Pac.  324.  Executors 
sued  upon  a  claim  against  the  estate  of 
the  decedent,  in  th-e  county  in  which  the 
estate  is  being  administered,  but  who  re- 
side in  another  county,  are  entitled,  upon 
proper  motion,  to  a  change  of  venue  to 
the  county  of  their  residence,  where  no 
counter-motion  is  made  that  the  case  be 
retained  for  the  convenience  of  witnesses, 
and  no  facts  are  shown  in  reply  to  the 
motion.  Thompson  v.  Wood,  115  Cal.  301; 
47  Pac.  50.  A  change  of  place  of  trial 
cannot  be  demanded  on  the  ground  of  resi- 
dence, in  an  action  taken  to  the  superior 
court  by  appeal  or  transfer  from  a  jus- 
tice's court.  Gross  v.  Superior  Court,  71 
Cal.  382;  12  Pac.  264;  Luco  v.  Superior 
Court,    71    Cal.   555;    12   Pac.   677.     Where 


§397 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


28^ 


the  pla,intiff  unites  in  the  same  action  a 
local  cause  of  action  with  one  that  is 
transitory,  the  defendant  is  entitled  to 
have  the' action  tried  in  the  county  of  his 
residence,  and  also  where  the  principal  ob- 
ject of  the  action  is  the  adjustment  of 
questions  personal  in  character;  an  action 
must  be  wholly  local  in  its  nature,  to  en- 
title it  to  be  tVied  in  a  county  other  than 
that  of  the  residence  of  the  defendant; 
the  plaintiff  cannot,  by  writing  in  his  com- 
plaint matters  which  form  the  subject  of 
a  personal  action  with  matters  which  form 
the  subject  of  a  local  action,  compel  the 
defendant  to  have  both  actions  tried  in  a 
county  other  than  that  in  which  he  resides. 
Smith  V.  Smith,  88  Cal.  572;  26  Pac.  356; 
Warner  v.  Warner,  100  Cal.  11;  34  Pac. 
523;  Bailev  v.  Cox,  102  Cal.  333;  36  Pac. 
650;  Booker  v.  Aitken,  140  Cal.  471;  74 
Pac.  11. 

Notice  of  application.  No  notice  of  the 
application  for  a  change  of  venue  is  re- 
quired, where  there  are  no  contesting  affi- 
davits: the  court  must  make  the  order  for 
the  change,  as  demanded,  regardless  of 
notice.  Bohn  v.  Bohn,  16  Cal.  App.  179; 
116  Pac.  568.  No  notice  of  the  application 
for  a  change  of  the  place  of  trial  need  be 
given  to  non-resident  co-defendants  who 
have  not  been  served  with  summons  nor 
made  an  appearance.  Wood  v.  Herman 
Mining  Co.,  139  Cal.  713;  73  Pac.  588. 

Waiver  of  right  to  change  of  venue.  A 
party  may  waive  his  absolute  right  to  a 
change  of  the  place  of  trial,  and  there  is 

§ 


a  waiver  where  the  procedure  for  assert- 
ing it  is  not  followed.  Bohn  v.  Bohn,  164 
Cal.  532;  129  Pac.  981.  A  defendant,  when 
served  with  summons,  is  bound  to  appear 
and  either  demur  or  answer;  and  his  de- 
mand for  a  change  of  venue  can  be  made 
only  at  the  time  he  answers  or  demurs. 
Witter  V.  Phelps,  163  Cal.  655;  126  Pac. 
593.  A  party  cannot  be  deprived  of  the 
right  of  transfer  by  an  amendment  of  the 
complaint.  Buell  v.  Dodge,  57  Cal.  645; 
Bradv  v.  Times  Mirror  Co.,  106  Cal.  56; 
39  Pac.  209. 

Conflicting  evidence.  Where  the  evi- 
dence as  to  residence  is  conflicting,  the  de- 
termination of  the  trial  court  as  to  the 
proper  county  will  not  be  reversed  upon, 
appeal.  Creditors  v.  Welch,  55  Cal.  469; 
Hastings  v.  Keller,  69  Cal.  606;  11  Pac. 
218;  Daniels  v.  Church,  96  Cal.  13;  30  Pac. 
798;  Ludwig  v.  Harry,  126  Cal.  377;  58 
Pac.  858.  The  court  will  not  go  into  the 
merits  of  the  action,  on  a  motion  to  change 
the  place  of  trial.  O'Brien  v.  O'Brien,  16 
Cal.  App.  193;  116  Pac.  696.  The  affidavit 
of  a  party,  other  than  the  defendant,  oa  a 
motion  for  a  change  of  venue,  in  order  to 
be  of  any  value  as  proof  on  the  question 
of  residence,  must  state  some  fact  or  facts 
to  aid  the  court  in  forming  a  conclusion 
upon  that  question.  O'Brien  v.  O'Brien,  16- 
Cal.  App.  103;  116  Pac.  692. 

Timeliness  of  motion  for  change  of  venue  or 
change   of  judge  made   after  trial  of  csuse.    See 

note  8  Ann.  (."us.  758. 

CODE  COMMISSIONERS'  NOTE.  See  note  to- 
§  397,  post. 


397.     Place  of  trial  may  be  changed  in  certain  cases.    The  court  may, 
on  motion,  change  the  place  of  trial  in  the  f  oUowino;  cases : 

1.  When  the  county  designated  in  the  complaint  is  not  the  proper  county  j 

2.  When  there  is  reason  to  believe  that  an  impartial  trial  cannot  be  had 
therein ; 

3.  When  the  convenience  of  witnesses  and  the  ends  of  justice  would  be 
promoted  by  the  change ; 

4.  When  from  any  cause  there  is  no  judge  of  the  court  qualified  to  act. 

Appeal  from  order  as  to  change  of  venue.  Post,  of  the  court,  does  not  affect  the  jurisdic- 
tion. White  V.  Superior  Court,  110  Cal.  60; 
42  Pac.  480.  This  section  is  applicable,  in 
counties  having  more  than  one  judge,  only 
when  no  judge  is  qualified  to  act.  Petition 
of  Los  Angeles  Trust  Co.,  158  Cal.  603;  112 
Pac.  56. 

Criminal  actions.  This  section  has  nO' 
application  to  criminal  actions.  People  v. 
Ebey,  6  Cal.  App.  769;  93  Pac.  379. 

Where  county  designated  is  not  proper 
county.  The  authority  given  to  the  court 
by  this  section,  to  change  the  place  of  trial 
when  the  county  designated  in  the  com- 
plaint is  not  the  proper  county,  is  a  limi- 
tation upon  its  power,  and  necessarily  im- 
plies that  if  the  county  designated  in  the 
complaint  is  the  proper  county,  the  place 
of  trial  cannot  be  changed,  except  for  some 
good  reason  authorized  by  the  code.    Mc- 


§  939,  subd.  3 

Judge,  when  disqualified.    See  ante,  §  170. 

Mandamus  and  prohibition.  Controlling  action 
of  court  on  motion  to  change  place  of  trial  by 
resort  to  these  writs.    See  post,  §§  1085,  1102. 

Legislation  §  397.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  21  (New  York  Code, 
§  126),  the  words  "in  the  action,"  at  the  end 
of  subd.  4,  being  omitted  when  adopted  in  1872, 
Bubd.  4,  then  reading,  "4.  When  from  any  cause 
the  judge   is  disqualified   from  acting." 

3.  Amendment  by  Stats.  1901,  p.  129;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  701;  the  code 
commis.sioner  saying,  "Subdivision  4  is  so 
amended  that  there  need  not  be  any  change  from 
the  place  of  trial,  if  there  is  any"  judge  v/ithin 
the  county  not  disqualified  from"  acting.  This 
was  certainly  the  real  legislative  intent." 

Transfer  from  one  department  to  an- 
other. A  transfer  from  one  department  of 
the  same  court  to  another,  by  order  of  the 
presiding   judge,    in   violation  of  the   rules 


285 


IMPARTIAL  TRIAL — WAIVER — CONVENIENCE  OF  WITNESSES. 


§397 


Farland  v.  Martin,  144  Cal.  771;  78  Pac. 
239. 

Residence.  Conditions  cannot  be  im- 
posed, where  the  defencUuit  maizes  a  de- 
nianti,  at  the  proper  time  and  in  the  proper 
manner,  for  a  tduinge  of  the  plai-e  of  trial 
to  the  countv  of  his  residone'e.  Ilenuessy 
V.  Nicol,  105  Cal.  138;  38  Pac.  (NO. 

Where  impartial  trial  cannot  be  had. 
The  place  of  trial  may  also  be  changed  on 
the  ground  that  a  fair  and  impartial  trial 
cannot  be  had  in  the  county  where  the 
action  was  commenceil.  Cook  v.  Peuder- 
gast,  61  Cal.  72;  Grewell  v.  Walden,  23  Cal. 
165. 

"Waiver  of  right.  The  right  to  have  the 
cause  tried  in  a  particular  county  is  a  per- 
sonal privilege,  which  the  party  may 
waive,  either  expressly  or  by  impliaation 
(Tooms  V.  Randall,  3  Cal.  438;  Keyes  v. 
Sanford,  5  Cal.  117;  Pearkes  v.  Freer,  9 
Cal.  642;  Watts  v.  White,  13  Cal.  321; 
Jones  V.  Frost,  28  Cal.  245;  Cook  v.  Pen- 
dergast,  61  Cal.  72;  Powell  v.  Sutro,  SO 
Cal.  559;  22  Pac.  308;  Warner  v.  Warner, 
100  Cal.  11;  34  Pac.  523;  Brady  v.  Times- 
Mirror  Co.,  106  Cal.  56;  39  Pac.  209; 
Hearne  v.  De  Young,  111  Cal.  373;  43  Pac. 
1108;  Herd  v.  Tuohy,  133  Cal.  55;  65  Pac. 
139);  but  in  an  action  concerning  real  es- 
tate, a  failure  to  appeal  from  the  first  or- 
der denying  the  motion  for  a  change,  for 
want  of  an  affidavit  of  merits,  is  not  a 
waiver  of  the  right  to  move  again  for  the 
transfer  of  the  cause  to  the  proper  county 
(Fritts  V.  Camp,  94  Cal.  393;  29  x^ac.  867); 
nor  is  the  filing  of  a  motion  to  strike  out 
portions  of  the  complaint  a  waiver  of  the 
right  to  demand  a  change  of  the  place  of 
trial  (Wood  v.  Herman  Mining  Co.,  139 
Cal.  713;  73  Pac.  588);  neither  is  the  rijrht 
waived  by  amending  the  demurrer.  Pitt- 
man  V.  Carsteubrook,  11  Cal.  App.  224;  104 
Pac.  699. 

Change  for  convenience  of  witnesses. 
The  place  of  trial  may  be  changed  for  the 
convenience  of  witnesses  (Haun  v.  Robin- 
son, 162  Cal.  760;  121  Pac.  1132);_and  the 
trial  court  has  a  wide  discretion  in  appli- 
cations on  this  ground  (Pascoe  v.  Baker, 
158  Cal.  232;  110  Pac.  815),  and  its  rulings 
will  not  be  disturbed,  where  the  affidavits 
as  to  residence  are  conflicting.  Bernou  v. 
Bernou,  15  Cal.  App.  341;  114  Pac.  1000. 
The  court  must  grant  the  change,  if  the 
afiSdavits  show  clearly  that  the  conve- 
nience of  the  witnesses  will  be  promoted 
thereby  (Thompson  v.  Brandt,  98  Cal.  155; 
32  Pac.  890;  Ivey  v.  Kern  County  Land  Co., 
115  Cal.  196;  46  Pac.  926;  C.  E.  Whitney 
&  Co.  V.  Sellers'  Commission  Co.,  130  Cal. 
188;  62  Pac.  472);  and  the  court  may  con- 
sider the  relative  expense  of  jiroducing  evi- 
dence; but  the  affidavits  should  set  forth 
the  particulars  regarding  such  expense 
(Schilling  v.  Buhne,  139  Cal.  611;  73  Pac. 
431;  Miller  &  Lux  v.  Kern  County  Land 
Co.,  140  Cal.  132;   73  Pac.  836);   and  must 


show  that  the  witnesses  are  material  ami 
necessary  to  the  defendant,  and  must  state 
what  is  expecte<l  to  be  proved  by  them, 
that  the  court  may  judge  of  their  mate- 
riality. Eiinis-Brown  Co.  v.  Long,  7  Cal. 
Apj).  313;  94  Pac.  250.  The  determination 
of  a  motion  for  the  rechange  of  a  cause  to 
the  first  place  of  venue,  for  the  convenience 
of  witnesses,  rests  largely  in  the  discretion 
of  the  court,  and  will  not  be  disturbed  on 
appeal,  except  for  abuse  of  discretion. 
Wong  Fung  Hing  v.  San  Francisco  Relief 
etc.  Funds,  15  Cal.  App.  537;  115  Pac.  331. 
A  refusal  to  change  the  place  of  trial  for 
the  convenience  of  witnesses  is  an  abuse  of 
discretion,  where  there  is  practically  no 
legal  showing  in  opposition  to  the  motion. 
Carr  v.  Stern,  17  Cal.  App.  397;  120  Pac. 
35.  There  is  no  abuse  of  discretion  in 
'denying  a  motion  for  a  change,  on  the 
ground  of  the  convenience  of  witnesses,  if 
the  affidavits  of  the  plaintiff,  in  opposition 
to  the  motion,  show  that  his  witnesses  will 
be  inconvenienced.  McNeill  &  Co.  v.  Doe, 
163  Cal.  338;  125  Pac.  345.  Where  the 
convenience  of  witnesses  is  alleged  in  op- 
position to  the  motion  for  change  on  the 
ground  of  the  residence  of  the  defendant, 
the  evidence  as  to  the  convenience  of  the 
witnesses  should  be  as  full  and  particular 
as  that  required  upon  the  application  to 
transfer  the  trial.  Loehr  v.  Latham,  15 
Cal.  418.  The  plaintiff  may  move  to  change 
the  place  of  trial  after  the  issues  are  made, 
on  the  ground  that  the  convenience  of  wit- 
nesses and  the  ends  of  justice  will  thereby 
be  promoted  (Cook  v.  Pendergast,  61  Cal. 
72);  and  when  the  application  is  made  on 
this  ground,  no  affidavit  of  merits  is  neces- 
sary. Pascoe  V.  Baker,  158  Cal.  232;  110 
Pac.  815.  In  an  action  to  foreclose  a  mort- 
gage upon  land  situated  partly  in  two 
counties,  where  the  affidavits  establish 
clearly  that  the  convenience  of  the  wit- 
nesses will  be  promoted  by  a  change,  the 
motion  should  be  granted.  Thompson .  v. 
Brandt,  98  Cal.  155;  32  Pac.  890.  Where 
the  action  is  brought  to  quiet  title  to  stock 
of  a  corporation  defendant  having  its  prin- 
cipal place  of  business  in  the  county  to 
which  the  change  of  venue  is  sought,  and 
the  transactions  involved  were  concluded 
in  that  county,  and  the  plaintiff's  grantor 
and  all  the  defendants  owning  stock  reside 
therein,  and  the  plaintiff  has  business 
relations  therein,  the  motion  is  properly 
granted.  Grant  v.  Bannister,  145  Cal.  219; 
78  Pac.  653.  A  motion  either  to  change 
the  place  of  trial,  or  to  retain  it  for  trial 
in  a  county  other  than  the  proper  county, 
based  upon  the  convenience  of  witnesses, 
will  not  be  entertained,  where  the  defend- 
ant appears  by  demurrer  only.  Wong  Fung 
Hing  V.  San  Francisco  Relief  etc.  Funds, 
15  Cal.  App.  537;  115  Pac.  331.  Until  an 
answer  is  filed  and  issues  of  facts  are 
joined,  it  cannot  be  said  that  a  production 
of  witnesses  upon  a  trial  will  be  required. 


§397 


PLACE  OF  TRIAL  OF   CIVIL  ACTIONS. 


286 


Wong  Fung  Hing  v.  San  Francisco  Relief 
etc.  Funds,  15  Cal.  App.  537;  115  Pae.  331. 

Motion  for  change.  This  section  con- 
templates that  the  order  shall  be  made  "on 
motion,"  but  the  basis  of  the  motion  is  the 
demand  and  the  affidavit  of  merits;  the 
"motion"  is  the  formal  application  in  court 
for  the  order.  Jaques  v.  Owens,  18  Cal. 
App.  114;  122  Pac.  430.  The  motion  must 
be  made  upon  notice  to  the  plaintiff,  which 
notice  must  be  in  writing,  and  conform  to 
the  requirements  of  §  1010,  post.  Bohn  v, 
Bolin,  164  Cal.  532;  129  Pac.  981.  To  ob- 
tain a  change  of  the  place  of  trial,  an  ap- 
plication must  be  made  to  the  court  for  an 
order  of  transfer;  such  api>lication  is  a 
motion,  and,  under  this  section,  the  motion 
for  the  change  must  be  made,  in  addition 
to  the  demand  and  affidavit.  Bohn  v.  Bohn, 
164  Cal.  532;  129  Pac.  981.  Upon  the  mo- 
tion, the  question  of  residence  must  be 
decided  upon  probative  facts;  these  are 
the  facts  that  should  be  set  forth  in  the 
affidavit.  Bernou  v.  Bernou,  15  Cal.  App. 
341;  114  Pac.  1000.  A  corporation  sued, 
in  a  transitory  action,  in  a  countj^  other 
than  that  of  its  principal  place  of  business, 
may  insist  upon  a  change  of  the  place  of 
trial.  Krogh  v.  Pacific  Gateway  etc.  Co., 
11  Cal.  App.  237;  104  Pac.  698.  If  there 
are  several  defendants  in  a  personal  action, 
a  non-resident  defendant,  moving  alone,  is 
not  entitled  to  have  the  place  of  trial 
changed  to  the  countj^  of  his  residence,  in 
the  absence  of  a  showing  that  none  of  the 
other  defendants  are  residents  of  the 
county  in  which  the  action  was  brought. 
Donohoe  v.  Wooster,  163  Cal.  114;  124  Pac. 
730.  In  condemnation  proceedings,  the 
place  of  trial  cannot  be  changed  to  the 
place  of  residence  of  the  defendants. 
Santa  Rosa  v.  Fountain  Water  Co.,  138  Cal. 
579;  71  Pac.  1123,  1136.  The  right  to  a 
change  of  the  place  of  trial  must  be  deter- 
mined by  the  conditions  existing  at  the 
time  of  the  appearance  of  the  party  de- 
manding the  change.  Donohoe  v.  Wooster, 
1IJ3  Cal.  114;  124  Pac.  730. 

When  an  appeal  may  be  taken.  An  ap- 
peal may  be  taken  directly  ujmn  an  order 
changing  or  refusing  to  change  the  place 
of  trial.  Remington  Sewing  Machine  Co. 
V.  Cole,  62  Cal.  311;  Broder  v.  Conklin,  98 
Cal.  360;  33  Pac.  211;  San  .Joaquin  Countv 
v.  Superior  Court,  98  Cal.  602;  33  Pac.  482 
Under  the  Practice  Act,  an  appeal  did  not 
lie  from  an  or<ier  granting  a  change  of 
the  place  of  trial;  the  remedy  for  an  erro 
neous  change  of  place  of  trial  was  by  ap 
peal  from  the  final  judgment.  Juan  v, 
Ingoldsby.  6  Cal.  439;  Martin  v.  Travers 
7  Cal.  253;  People  v.  Sexton,  24  Cal.  78 
Although  the  taking  of  an  appeal  from  an 
onler  denying  a  motion  to  change  the 
jilace  of  trial  entitles  the  appellant  to  a 
continuance  of  the  general  cause  in  the 
court  below  while  the  aitpeal  is  yjendintr, 
yet  it  does  not  follow  that  the  trial  court 


has,  by  reason  of  the  pendency  of  the  ap- 
peal, lost  jurisdiction  of  the  case  or  that  a 
trial  of  the  case,  pending  the  appeal,  would 
be  a  proceeding  without  or  in  excess  of 
the  jurisdiction  of  the  trial  court;  it  might 
amount  to  an  error  for  which  the  judgment 
would  be  reversed  on  appeal,  but  there  can 
be  no  such  excess  of  jurisdiction  as  to 
authorize  a  writ  of  prohibition.  People  v. 
Whitnej^,  47  Cal.  584;  Southern  Pacific 
R.  R.  Co.  V.  Superior  Court,  63  Cal.  607;. 
Howell  V.  Thompson,  70  Cal.  635;  11  Pac. 
789.  A  judgment  against  the  appellant,, 
after  an  appeal  from  and  before  the  re- 
versal of  the  order  refusing  to  change  the 
place  of  trial,  will  be  reversed  upon  appeal 
from  the  judgment,  without  inquiry  as  to 
the  commission  of  errors  on  the  trial,  al- 
though the  appellant  may  have  appeared 
at  the  trial  and  contested  the  right  of  the 
respondent  to  recover.  Howell  v.  Thomp- 
son, 70  Cal.  635;  11  Pac.  789;  Pierson  v, 
McCahill,  23  Cal.  249.  The  place  for  filing 
the  notice  and  undertaking  on  appeal  fron. 
an  order  changing  the  place  of  trial  to  an- 
other county,  is  in  the  office  of  the  clerk 
of  the  superior  court  of  the  county  which 
made  the  order;  if  filed  with  the  clerk  of 
the  county  to  which  the  transfer  is  made, 
the  appeal  is  ineffectual,  and  will  be  dis- 
missed. Mansfield  v.  O'Keefe,  133  Cal.  362; 
65  Pac.  825.  Although  the  affidavit  upon 
which  the  application  to  change  the  venue 
is  made  may  not  show  any  legal  cause  for 
the  change,  still,  if  the  court  grants  the 
application,  it  has  acted  judicially  upon  a 
matter  within  its  cognizance,  and  the  order 
is  valid  and  conclusive,  unless  reversed  on 
appeal.  People  v.  Sexton,  24  Cal.  78.  The 
action  of  the  court  in  proceeding  to  trial, 
pending  an  appeal  from  an  order  denying 
a  motion  for  a  change  of  the  place  of 
trial,  is  not  void,  and  will  not  be  stayed 
by  writ  of  prohibition.  People  v.  Whitney, 
47  Cal.  584;  Howell  v.  Thompson,  70  Cal. 
635;  11  Pac.  789;  Southern  Pacific  R.  R. 
Co.  V.  Superior  Court,  63  Cal.  607.  If  the 
motion  for  a  change  of  the  place  of  trial, 
on  the  ground  that  a  fair  and  impartial 
trial  cannot  be  had,  is  made  upon  conflict- 
ing affidavits,  a  denial  of  the  motion  will 
be  sustained  on  appeal,  where  the  voir 
dire  examination  of  the  jurors  is  not  ia 
the  record,  and  it  does  not  appear  that  a 
single  citizen  liable  for  jury  duty  in  the 
county  is  disqualified  from  giving  the 
plaintiff  a  fair  and  impartial  trial.  Car- 
penter v.  Sibley,  15  Cal.  App.  589;  119 'Pac. 
391. 

Change  of  venue.    See  note  74  Am.  Dec.  241. 

Number  of  times  party  is  entitled  to  change  of 
venue.    See  note  7  Ann.  Cas.  304. 

County  to  which  venue  may  be  changed  in  ab- 
sence of  statute  requiring  change  to  be  to  nearest 
or  adjoining  county.    See  note  9  Ann.  Cas.  177. 

CODE  COMMISSIONERS'  NOTE.  1.  Motion, 
when  made.  "Where  the  convenience  of  witnesses 
is  the  ground  of  the  motion,  it  should  not  be 
made  till  after  issue  joined.    Hubbard  v.  National 


287 


PLACE    OF    TRIAL    MAY    BE    CHANGED    IN    CERTAIN    CASES. 


§397 


Pi-otection  Ins.  Co.,  11  How.  Pr.  149;  Merrill 
V.  Grinnell,  10  How.  Pr.  31;  12  N.  Y.  Leg.  Obs. 
286;  Hinchman  v.  Butler,  7  Huw.  Pr.  462;  Hart- 
man  V.  Spencer,  5  Huw.  Pr.  135 ;  see  also  Sup. 
Ct.  Rules,  pp.  r)9,  e;o. 

2.  When  motion  must  be  made.  In  Re.ves  v. 
Sanford,  5  Cal.  117,  and  in  Tooms  v.  Randall,  3 
Gal.  438,  it  was  held  that  an  objection  to  the 
venue  must  be  made  in  the  answer,  and  conies 
too  late  after  an  answer  to  the  merits;  it  follows 
that  such  a  motion,  on  grounds  disclosed  by  the 
complaint,  must  be  made  before  or  at  the  time 
of  filing  demurrer.  By  filing  a  demurrer,  and 
consenting  to  set  the  case  for  trial  at  a  par- 
ticular day,  the  defendant  waives  his  right  to 
move  for  a  change  of  venue.  Pearkes  v.  Freer, 
9  Cal.  643;  see  also  Jones  v.  Frost,  28  Cal.  246. 
See  §  396,  which  modifies  the  rule  of  these  dis- 
tinctions in  some  respects. 

3.  Parties,  and  not  court,  to  make  motion. 
Motion  should  be  made  by  the  parties  to  the 
suit,  and  not  bv  the  court  in  the  first  instance. 
Watts  V.  White,  13  Cal.  324. 

4.  Change  of  venue  discretionary  with  judge. 
The  granting  of  a  change  of  venue  on  the  ground 
that  a  fair  and  impartial  trial  cannot  be  had,  and 
other  grounds,  is  discretionary  with  the  courts, 
and  is  subject  to  revision,  only  in  cases  of  clear 
abuse.  Watson  v.  Whitnev,  23  Cal.  373;  Sloan 
V.  Smith,  3  Cal.  410;  Pierson  v.  McCahill,  22 
Cal.  131;  People  v.  Sexton,  24  Cal.  78;  People 
V.  Fisher,  6  Cal.  155,  commenting  on  People  v. 
Lee,  5  Cal.  354.  And  the  granting  of  time  to 
file  counter-affidavits,  on  a  motion  to  change  the 
place  of  trial,  is  a  matter  of  discretion  in  the 
lower  court.    Pierson  v.  McCahill,   22  Cal.   127. 

5.  When  change  of  venue  is  not  discretionary. 
The  court  has  no  discretion  as  to  change  of  venue 
when  an  action  concerning  real  estate  is  brought 
in  the  wrong  county.  A  motion  to  change  the 
place  of  trial,  and  not  a  demurrer,  is  the  proper 
proceeding,  and  the  trial  must  be  changed  as  a 
matter  of  right.    Wafts  v.  White,  13   Cal.  321. 

6.  Eight  to  change  place  of  trial  may  be 
waived.  For  convenience,  parties  have  a  right  to 
a  trial  of  particular  cases  in  particular  counties. 
Tliis  is  a  mere  privilege,  which  may  be  waived 
by  those  entitled  to  it.  It  must  be  claimed  at 
the  proper  time,  and  in  the  proper  way.  It  is 
not,  by  our  statute,  matter  in  abatement  of  the 
writ,  ijut  a  mere  privilege  of  trial  of  the  suit 
in  the  given  county.  The  party  desiring  a  change 
of  venue  should  move  the  court  to  change  the 
place  of  trial,  and  then  the  court,  in  the  proper 
case,  has  no  discretion  to  refuse  the  motion.  It 
seems  t6  be  a  matter  of  peremptory  right.  We 
think  the  court  is  not  bound,  of  its  own  motion, 
to  change  the  venue,  and  overrule,  so  far,  the 
case  of  Vallejo  v.  Randall,  5  Cal.  461,  if  that 
case  is  to  be  so  construed.  Watts  v.  White  13 
Cal.  324. 

7.  Ptesisting  change  of  v?nue.  What  facts 
should  govern  court  in  granting  change.  When 
a  defendant  applies  for  a  change  of  the  place  of 
trial,  on  the  ground  that  the  action  was  not 
brought  in  the  county  where  he  resides,  the  plain- 
tiff has  a  right  to  oppose  the  motion,  by  showing 
that  the  "convenience  of  witnesses  and  the  ends 
of  justice  would  be  promoted"  by  refusing  the 
change,  and  such  facts  should  govern  and  con- 
trol the  court  in  determining  the  question  whether 
the  application  for  the  change  should  be  granted 
or  not.  Loehr  v.  Latham,  15  Cal.  418;  Pierson 
v.  McCahill,  22  Cal.  127;  Jenkins  v.  California 
Stage  Co.,  22  Cal.  538  ;  see  also  Fickens  v.  Jones 
(not  reported)  ,   2  Parker's  Cal-  Dig.,  p.  82. 

8.  Opposing  the  motion.  The  motion,  on  the 
part  of  the  defendant,  to  change  the  place  of  trial 
for  the  convenience  of  witnes.';es,  may  be  re- 
sisted by  the  plaintiff  by  affidavit,  showing  that 
he  has  an  equal  or  greater  number  of  material 
witnesses  than  the  defendant,  residing  in  or  near 
the  county  in  which  venue  is  laid.  Gilbert  v. 
Chapman,  1  How.  Pr.  56 ;  Spencer  v.  Hulbert,  2 
Cai.  374;  Du  Boys  v.  Fronk,  3  Cai.  95;  Stouten- 
bergh  v.  Legg,  2  Johns.  481  ;  Anonymous,  7 
Cow.  102;  Onondaga  Countv  Bank  v.  Shepherd, 
19  Wend.  10;  Sherwood  v.  Steele,  12  Wend.  294. 
9.  When  action  commenced  in  wrong  court,  it 
may  yet  be  retained  there,  if  convenience  of  wit- 
nesses require  it.  Practice  in  such  case.  When 
defendant  was  not  sued  in  the  county  of  his  resi- 
dence, and  moved  to  change  the  place  of  trial  to 


such  county,  plaintiff  may  make  a  counter-motion 
to  retain  the  cause  on  account  of  convenience  of 
witnesses,  and  then  defendant  can  reply  to  the 
allegations  as  to  the  convenience  of  witnesses;  or 
plaintiff,  instead  of  a  counter-motion,  may  simply 
resist  the  motion  of  defendant,  but  reasonable 
time  should  be  allowed  defendant,  if  desired,  to 
meet  the  matter  set  up  in  opposition  to  the 
origiiK'.l  motion.  Loehr  v.  Latham,  15  Cal.  418; 
Pierson  v.  McCahill,  22  Cal.  127.  But  if  tho 
plaintiff  should  neglect  to  present  the  facts  as  to 
convenience  of  witnesses,  and  the  place  of  trial 
should  once  be  changed  to  the  county  where  de- 
fendant resides,  it  is  doubtful  whether  the  plain- 
tiff can  afterwards  apply  to  the  court  to  which  it 
has  thus  been  removed,  to  have  it  sent  back 
again.     Pierson  v.  McCahill,  22  Cal.  127. 

10.  The  affidavit  by  plaintiff  to  retain  a  cause 
for  trial  in  a  county  not  the  residence  of  the  de- 
fendant, upon  the  ground  of  convenience  of  wit- 
nesses, must  contain  the  names  of  the  witnesses^ 
and  the  evidc-nce  as  to  the  convenience  should 
be  as  full  and  particular  as  that  which  is  re- 
quired upon  application  for  this  cause  to  transfer 
the  trial  to  another  county.  Loehr  v.  Latham,  15 
Cal.  418. 

11.  Alftdavit  on  motion  for  change  of  venue 
must  state  what.  The  facts  should  be  stated  in 
the  affidavit  in  such  a  manner  as  to  enable  the 
court  to  draw  its  own  inference  whether  or  not 
an  impartial  trial  could  be  had  in  the  particular 
case,  admitting  that  a  prejudice  did  exist  in  the 
community  against  the  defendant.  Sloan  v.  Smith,. 
3  Cal.  412. 

12.  Where  the  witnesses  of  plaintiff  reside  in 
the  place  from  which  defendant  applies  to  move 
the  trial.  If  the  affidavit  of  a  defendant  for  a 
change  of  venue,  because  a  fair  trial  cannot  be 
had,  shows  that  all  the  witnesses  of  the  plaintiff 
reside  in  the  place  from  which  the  defendant 
seeks  to  remove  the  cause,  it  has  an  appearance 
as  though  he  was  endeavoring  to  escape  from 
the  effects  of  their  testimony  by  a  removal  of 
the  cause,  and  should  cause  the  application  to  be 
reL'arded  with  suspicion.  Sloan  v.  Smith,  3  CaL 
412. 

13.  The  plaintiff  in  an  action  may  have  the 
place  of  trial  changed  upon  a  proper  showing, 
equally  with  the  defendant.  There  is  nothing  in 
the  statute  forbidding  it.  This  section  does  not 
confine  this  motion  to  the  defendant,  but  leaves, 
it  open  for  both  parties.  As  a  general  rule,  the 
action  should  be  commenced  in  the  county  where 
the  defendants  reside;  but  if,  after  the  issues  are 
made  up  and  eacli  party  knows  the  facts  neces- 
sary to  be  proved,  the  plaintiff  should  find  that 
the  convenience  of  his  witnesses  requires  that  the 
trial  should  be  had  in  some  other  countj',  where 
the  cause  of  action  arose,  and  where  his  wit- 
nesses reside,  he  is  certainly  as  much  entitled  to 
a  change  as  the  defendant  would  be  under  the 
same  circumstances,  and  he  should  not  be  denied 
that  right  because  he  has  brought  his  action  in 
the  county  where  the  defendants  reside,  or  where 
the  personal  property  in  controversy  may  happen 
to  be  found.  The  present  case  shows  the  im- 
portance of  thus  establishing  the  rule.  (See 
facts.)  Grewell  v.  Walden,  23  Cal.  169.  In  New 
York,  however,  it  was  held  that  the  plaintiff"  can- 
not directly  move  to  change  his  venue,  but  may 
change  it,  by  amending  his  complaint,  of  course, 
within  the  time  allowed,  or  by  motion  for  leave 
to  amend,  after  the  time  to  amend,  of  course,  has 
expired.  Swartwout  v.  Payne,  16  Johns.  149; 
Wakeman  v.  Sprague,  7  Cow.  164. 

14.  Where  a  strong  prejudice  exists,  so  that  a 
fair  and  impartial  trial  cannot  be  had.  See 
Fickens  v.  Jones  (not  reported),  2  Parker's  Cal. 
Dig.,   p.   82. 

15.  The  influence  of  the  ofl^ice  of  sheriff  is  not 
sufficient  cause  to  change  the  venue,  on  the 
ground  that  it  will  prevent  a  fair  and  impartial 
trial.     Baker  v.   Sleight,  2   Cai.   46. 

16.  The  existence  of  a  party  spirit  in  the  county 
where  the  venue  is  laid,  against  the  party  making 
the  application,  is  not  adequate  ground  for  chan- 
ging the  place  of  trial.  Zobleskie  v.  Bander,  1 
Cai.  487. 

17.  Where  there  are  more  defendants  than  one, 
all  must  join  in  the  motion.  Saillv  v.  Hutton.  6 
Wend.  508;  Welling  v.  Sweet,  1  How.  Pr.  156. 
And  where  all  do  not  so  join,  good  reason  must 
be   shown   therefor.     Id.     And  this  doctrine   was 


398 


PLACE  OF  TRIAL  OF   CIVIL   ACTIONS. 


288 


established  in  Fickens  v.  Jones   (not  reported),  2 
Parker's   Cal.   Dig.,   p.   82. 

18.  When  all  defendants  need  not  join  in  mo- 
tion. In  an  action  against  several  defendants, 
where  some  of  them  have  suffered  default,  the 
others  may  move  to  change  the  venue.  Chace  v. 
Benham,  12  Wend.  200.  So  if  the  action  be  in 
form  against  several  defendants,  and  process  be 
served  upon  a  part  only.  Brittan  v.  Peabody,  4 
Hill,  62.  n. 

19.  Incapacity  of  judge  to  act.  Section  170  of 
this  code  provides  that  "A  judge  cannot  act  as 
such  in  any  of  the  following  cases:  When  he  is 
related  to  either  party  by  consanguinity  or  atWnity 
within  the  third  degrf-e.  .  .  .  But  this  section 
does  not  apply  to  the  arrangement  of  the  calendar 
or  the  regulation  of  the  order  of  business." 
These  are  the  only  exceptions  mentioned.  This 
section  (§  397)  of  the  code  authorizes  the  court 
to  change  the  place^  of  trial,  "when,  from  any 
cause,  the  judge  is  disqualified  from  acting  in  the 
action."  These  are  mere  formal  matters,  which 
determine  no  question  in  dispute  between  the  par- 
ties, in  any  way  affecting  the  merits  of  the  con- 
troversy. But,  beyond  these  acts,  the  judge  is 
totally  disqualified  from  sitting  in  the  case. 
Even  if  no  objection  is  made,  he  has  no  right 
to  act,  and  ought,  of  his  own  motion,  to  decline 
to  sit  as  judge.  In  Oakley  v.  Aspinwall,  3  N.  Y. 
547,  where  a  judge  sat  in  the  case  at  the  earnest 
solicitation  of  the  party  most  interested  in  ex- 
cluding him,  and  with  the  consent  of  both  par- 
ties, it  was  held  that  the  judgment  which  de- 
pended upon  his  concurrence  was  vitiated.  People 
V.  De  la  Guerra,  24  Cal.  77;  see  also  De  la  Guerra 
V.  Burton,  23  Cal.  592. 

20.  Incapacity  of  judge,  exhibition  of  partisan 
feeling  by  judge,  etc.  The  exhibition,  by  a  judge, 
of  partisan  feeling,  or  the  unnecessary  expression 
of  an  opinion  upon  the  justice  or  merits  of  a 
controversy,  though  exceedingly  indecorous,  im- 
proper, and  reprehensible,  as  calculated  to  throw 
suspicion  upon  the  judgment  of  the  court,  and 
bring  the  administration  of  justice  into  con- 
tempt, is  not,  under  our  statute,  sufficient  to  au- 
thorize a  change  of  venue,  on  the  ground  that 
the  judge  is  disqualified  from  sitting.  The  law 
establishes  a  different  rule  for  determining  the 
qualification  of  judges  from  that  applied  to 
jurors.  McCauley  v.  Weller,  12  Cal.  523;  see 
also  People  v.  Williams,  24  Cal.  31. 

21.  Change  of  venue  in  probate  court.  When 
the  probate  judge  is  interested  in  an  estate,  or 
in  money  coming  to  the  heirs  therefrom,  he  has 
no  jurisdiction  to  act  as  judge  therein,  and  should 
grant  a  change  of  venue.  It  is  no  excuse  for 
refusing  a  change  of  venue,  in  such  case,  to  say 
that  the  judge  decided  correctly  upon  the  matter 
I)efore  him.  after  refusing  such  change  of  venue 
Estate  of  White,  37  Cal.  190. 

22.  Fraudulent  debtor  confessing  several  fraud- 
ulent   judgments    in    different    courts.     See    Uhl- 


felder  v.  Levy,  9  Cal.  607. 

23.  The  effect  of  an  appeal  from  order  refus- 
ing change  of  venue  is  to  stay  all  further  pro- 
ceedings in  the  action  until  the  determination  of 
such  appeal.     Pierson  v.  McCahill,  23  Cal.  249. 

2'i.  Transfer  of  actions  to  United  States  courts. 
See  Greely  v.  Townsend,  25  Cal.  604;  People  v. 
Hager,  20  Cal.  167;  Calderwood  v.  Braly,  23 
Cal.  97;  Magraw  v.  McGlynn,  32  Cal.  257.  See 
the  subject  fully  discussed  in  notes  13,  14,  15, 
16,  of  §  33,  ante.  The  provisions  of  "An  Act  to 
provide  for  certifying  and  removing  certain  cases 
from  the  courts  of  this  state  to  the  United  States 
circuit  courts,  and  to  remove  by  writ  of  error 
certain  cases  from  the  supreme  court  of  this 
state  to  the  supreme  court  of  the  United  States," 
passed  April  9.  1855  (Stats.  1855.  p.  80),  have 
been  omitted  from  the  code.  It  has  been  held 
that  the  state  legislature  had  no  power  to  confer 
jurisdiction  on  the  Federal  courts,  nor  to  pro- 
vide for  the  mode  of  exercising  its  jurisdiction. 
Say  the  court  in  Greely  v.  Townsend:  The  origin 
and  history  of  the  act  of  the  9th  of  April,  ]  ^55 
(Stats.  1855,  p.  80),  are  well  known.  Five 
months  prior  to  its  passage  the  then  supreme 
court  of  this  state,  in  the  case  of  Johnson  v. 
Gordon,  4  Cal.  368.  had  decided  that  the  twenty- 
fifth  section  of  the  Federal  Judiciary  Act  of  1789 
was  unconstitutional,  and  declared  that  no  case 
could  be  taken  from  a  state  to  a  Federal  court 
by  writ  of  error  or  otherwise.  The  decision  was 
made  upon  the  authoritj'  of  the  court  of  appeals 
of  Virginia,  in  the  case  of  J'artiu  v.  Hunter's 
Lessee,  and  in  harmony  with  the  ultra  state 
rights  doctrine  of  Calhoun  and  his  political  fol- 
lowers, the  soundness  of  which  is  now  undergo- 
ing its  last  test  upon  the  bloody  battle-fields  of 
the  republic.  Startled  by  the  judicial  enuncia- 
tion of  this  doctrine  by  the  highest  court  of  the 
state,  .  .  .  the  legislature  sought  to  provide  a 
remedy  against  its  supposed  evils  by  interposing 
a  barrier  to  its  further  judicial  progress,  ap- 
parently without  pausing  to  consider  whether  a 
remedy  was  within  the  constitutional  reach  of 
state  legislation.  The  motive  was  a  good  one; 
but,  as  all  must  admit,  the  power  was  wanting. 
It  is  not  within  the  constitutional  power  of  a 
state  legislature  to  confer  jurisdiction  upon 
Federal  courts,  or  prescribe  the  means  or  mode 
of  its  exercise.  That  subject  belongs  exclusively 
to  the  Federal  government,  and  must  be  regulated 
solely  by  the  Federal  constitution  and  the  laws 
of  Congress.  While,  therefore,  I  appreciate  the 
motive  of  the  legislature  in  passing  the  act  in 
question,  I  am  compelled  to  deny  its  power,  and 
must  hold  that,  so  far  as  the  act  attempts  to 
prescribe  a  rule  for  judicial  conduct  in  cases 
like  the  present,  it  is  wholly  inoperative.  Greely 
V.  Townsend,  25  Cal.  613:  see  also  People  v. 
Judge  of  Jackson  Circuit  Court,  21  Mich.  577; 
4  Am.  Rep.  504. 


§  398.  When  judge  is  disqualified,  cause  to  be  transferred.  If  an  action 
or  proceeding  is  commenced  or  pending  in  a  court,  and  the  judge  or  justice 
thereof  is  disqualified  from  acting  as  such,  or  if,  from  any  cause,  the  court 
orders  the  place  of  trial  changed,  it  must  he  transferred  for  trial  to  a  court 
the  parties  may  agree  upon,  by  stipulation  in  writing,  or  made  in  open 
court  and  entered  in  the  minutes;  or,  if  they  do  not  so  agree,  then  to  the 
nearest  or  most  accessible  court,  where  the  like  objection  or  cause  for  mak- 
ing the  order  does  not  exist,  as  follows : 

1.  If  in  a  superior  court,  to  another  superior  court. 

2.  If  in  a  justices'  court,  to  another  justices'  court  in  the  same  county. 


Legislation  S  398.    1.  Enacted  March  11,  1873. 

2.  Amended  by  Stats.  1881,  p.  23,  to  read 
as  at  present,  except  for  the  words  "or  most 
accessible,"  added  in  1897;  (1)  changing  "for 
any  cause"  to  "from  any  cause,"  (2)  omitting 
the  words  "to  be"  before  the  word  "changed," 
(3)  in  siibd.  1,  changing  the  word  "district"  to 
"superior"  in  both  instances,  (4)  renumbering 
subd.  4  as  Bubd.  2,  (5)  omitting  subd.  2  and 
fiubd.   3,   which   read:    "2.   If   in   a   county   court, 


to  some  other  county  court;   3.   If  in  the  probate 
court,   to  some  other  probate  court." 
3.   Amended  by  Stats.   1897.  p.  184. 

When  judge  is  disqualified.  This  sec- 
tion applies  to  the  judge  acting  at  the  time 
of  the  application,  and  not  necessarily  to 
the  superior  judge  of  the  county.  Paige  v. 
Carroll,   61   Cal.   215;    Upton   v,  Upton,   94 ' 


289 


NEAREST  COURT — MANDAMUS — DISQUALIFIED  JUDGE. 


§398 


Cal.  26;  29  Pac.  411;  Krumdick  v.  Crump, 
98  Cal.  117;  32  Pac.  800.  The  eoustruction 
of  this  section  shouhi  be  liberal,  with  a 
view  to  effect  its  object  and  to  promote 
justice.  Paige  v.  Carroll,  61  Cal.  215. 
Where  the  motion  for  change  of  venue  is 
presented  for  hearing  before  a  .iudge  who 
is  qualified  to  try  the  case,  the  motion  is 
properly  denied.  Santa  Cruz  Bank  v.  Tay- 
lor, 125  Cal.  249;  57  Pac.  987;  Paige  v. 
Carroll,  61  Cal.  215;  Finn  v.  Spaguoli,  67 
Cal.  330;  7  Pac.  746;  Upton  v.  Upton,  94 
Cal.  26;  29  Pac.  411;  Krumdick  v.  Crump, 
98  Cal.  117;  32  Pac.  800.  A  motion  on  the 
ground  of  bias  or  prejudice  of  the  judge 
must  be  decided  ujton  the  affidavits  filed: 
the  judge  is  not  permitted  to  use  his  own 
knowledge  ot  the  matter  (People  v.  Hub- 
bard, 22  Cal.  34;  People  v.  Comptou,  123 
Cal.  403;  56  Pac.  44;  People  v.  Blackman, 
127  Cal.  248;  59  Pac.  573;  Morehouse  v. 
Morehouse,  136  Cal.  332;  68  Pac.  976),  ex- 
cept where  the  ground  of  disqualification 
alleged  is  the  interest  of  the  judge;  the 
knowledge  of  the  judge  in  such  case  would 
be  more  certain  and  satisfactory  than  any 
evidence.  Southern  California  etc.  Road 
Co.  V.  San  Bernardino  Nat.  Bank,  100  Cal. 
316;  34  Pac.  711.  The  burden  is  on  the 
moving  party  to  show  disqualification; 
there  is  no  presumption  of  disqualification. 
Dakan  v.  Superior  Court,  2  Cal.  App.  52; 
82  Pac.  1129.  The  right  to  make  and 
file  an  affidavit  as  to  the  disqualification 
of  a  judge  is  not  restricted  to  any  particu- 
lar party.  Parrish  v.  Riverside  Trust  Co., 
7  Cal.  Al>p.  95;  93  Pac.  685.  Even  if  no 
objection  is  made,  a  disqualified  judge  has 
no  right  to  act,  and  ought,  of  his  own  mo- 
tion, to  decline  to  sit  as  a  judge.  People 
V.  De  la  Guerra,  24  Cal.  73;  Tracy  v.  Colby, 
55  Cal.  67.  A  judgment,  after  an  improper 
refusal  to  grant  a  change  of  venue  on  the 
ground  of  the  disqualification  of  the  judge, 
is  void,  and  will  be  reversed  on  appeal, 
"without  consideration  of  its  merits  (Mever 
v.  San  Diego,  121  Cal.  113;  53  Pac.  1128); 
but  jurisdiction  is  not  divested  by  giving 
notice  of  the  motion;  and  if  the  motion  is 
properly  denied,  the  judgment  is  not 
affected  thereby.  Dakan  v.  Superior  Court, 
2  Cal.  App.  52;  82  Pac.  1129.  By  the 
change  of  venue  granted  by  a  judge  who  is 
a  party  to  or  interested  in  the  action,  juris- 
diction is  conferred  upon  the  court  to 
■which  the  transfer  is  made.  Oaklaml  v. 
Hart,  129  Cal.  98;  61  Pac.  779.  There  is 
BO  presumption  that  a  judge  is  disquali- 
fied; whether  disqualification  exists  is  a 
judicial  question,  to  be  determined  by  the 
tribunal  before  which  it  is  presented,  and 
the  facts  establishing  it  must  be  set  forth 
by  affidavits.  Dakan  v.  Superior  Court,  2 
Cal.  App.  52;  82  Pac.  1129. 

Nearest  and  most  accessible  court.     The 
words  "most  accessible"  mean  most  accessi- 
ble from'  the  court   in  which  the  action   is 
pending;    and   the   words    "nearest    court" 
1  Fair. — 19 


mean  the  court  nearest  that  in  which  the 
action  is  pending;  but  the  "most  a(;cessi- 
ble"  court  may  not  be  the  "nearest"  court. 
Anaheim  Water  Co.  v.  Jurupa  Land  etc. 
Co.,  128  Cal.  568;  61  Pac.  80.  The  deter- 
mination of  this  question  is  a  matter 
within  the  jurisdiction  of  the  disqualified 
judge,  and  an  error  therein  would  not  ren- 
der the  judgment  void.  Gage  v.  Downey, 
79  Cal.  i40;  21  Pac.  527,  855.  In  case  of 
the  disqualification  of  a  judge,  the  law 
selects  the  judge  to  try  the  cause;  the  dis- 
qualified judge  has  no  discretion  in  the 
selection.  Parrish  v.  Riverside  Trust  Co., 
7  Cal.  App.  95;  93  Pac.  685.  A  judge  who 
is  interested  in  an  action  or  proceeding  can 
only  act  as  directed  by  law;  he  cannot 
transfer  the  same  to  a  judge  of  his  own 
selection,  nor  call  in  any  other  judge  to 
try  the  cause.  John  Heinlen  Co.  v.  Superior 
Court,  17  Cal.  App.  660;  121  Pac.  293.  The 
provision  for  a  change  to  another  county 
is  applicable,  only  when  all  the  judges  of 
the  county  are  disqualified,  and  there  is  no 
judge  of  the  court  qualified  to  act.  Peti- 
tion of  Los  Angeles  Trust  Co.,  158  Cal. 
603;  112  Pac.  56. 

Transfer  nlay  be  compelled.  Mandamus 
will  issue  to  enforce  the  right  of  transfer 
(Livermore  v.  Brundage,  64  Cal.  299;  30 
Pac.  848;  Krumdick  v.  Crump,  98  Cal.  117; 
32  Pac.  800) ;  and  prohibition  will  issue 
to  restrain  a  judge  from  proceeding  in  the 
action,  where  he  is  disqualified  by  reason 
of  interest,  although  the  court  in  which 
he  presides  has  jurisdiction  of  the  action 
(North  Bloomfield  etc.  Mining  Co.  v.  Key- 
ser,  58  Cal.  315;  Havemeyer  v.  Superior 
Court,  84  Cal.  327;  18  Am.  St.  Rep.  192; 
10  L.  R.  A.  627;  24  Pac.  121);  but  the 
showing  of  bias  and  prejudice  must  be 
clear,  or  prohibition  will  not  issue.  Dakan 
V.  Superior  Court,  2  Cal.  App.  52;  82  Pac. 
1129.  While  the  motion  remains  undeter- 
mined, prohibition  will  not  issue  (Chester 
V.  Colby,  52  Cal.  516;  Havemeyer  v.  Su- 
perior Court,  84  Cal.  327;  18  Am.  St.  Rep. 
192;  10  L.  R.  A.  627;  24  Pac.  121);  and  the 
right  to  claim  a  transfer  is  waived  by  a 
subsequent  stipulation  that  the  cause  may 
be  set  for  trial  at  any  time  that  may  suit 
the  convenience  of  the  judge  called  to  try 
the  same,  and  by  an  appearance  before  the 
judge  called  to  preside,  without  objection, 
and  obtaining  leave  to  file  an  amended 
complaint,  and  arguing  the  demurrer  there- 
to. Schultz  v.  McLean,  109  Cal.  437;  42 
Pac.  557.  By  consenting  to  the  calling  in 
of  a  qualified  judge,  the  party  is  precluded, 
from  raising  the  question  of  irregularity 
of  manner  in  calling  him  in,  or  of  his  right 
to  hear  the  cause.  Oakland  v.  Hart,  129 
Cal.  98;  61  Pac.  779. 

Power  of  disqualified  judge.  The  power 
of  the  disqualified  judge  is  limited,  so  that 
he  may  not  act  at  all,  except  so  far  as  the 
action  may  be  affected  by  the  arrangement 
of  the  calendar  of  his  court  for  regulation 


§§  399,  400 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


290 


of  the  order  of  'business,  and  except  to 
transfer  the  case  to  some  other  court  for 
trial;  he  has  but  one  thing  to  do,  and  it  is 
his  duty  to  do  that  thing  at  once;  there 
should  be  no  postponement  on  account  of 
the  absence  of  the  adverse  party,  no  con- 
tinuances, no  time  given  for  the  filing  of 
briefs,  no  holding  under  advisement,  no 
entertaining  of  any  counter-motion  based 
upon  grounds  calling  for  the  exercise  of 
judicial  discretion.  People  v.  De  la  Guerra, 
24  Cal.  73;  Estate  of  White,  37  Gal.  190; 
Livermore  v.  Brundage,  64  Cal.  299;  30 
Pac.  848;  Krumdiek  v.  Crump,  98  Cal.  117; 
32  Pac.  800;  Anaheim  Water  Co.  v.  Jurupa 
Land  etc.  Co.,  128  Cal.  568;  61  Pac.  80. 
The  dismissal  of  an  action  involves  judicial 
discretion;  and  if  made  by  a  disqualified 
judge,  it  is  void.  People  v.  De  la  Guerra, 
24  Cal.  73.  A  motion  for  a  new  trial  must 
be  transferred  for  hearing,  where  the  judge 
becomes  disqualified;  the  hearing  and  dis- 
position of  a  motion  for  a  new  trial  amounts 
to  a  trial,  within  the  meaning  of  this  sec- 
tion. Finn  v.  Spagnoli,  67  Cal.  330;  7  Pac. 
746.  A  cause  which  the  judge  is  disquali- 
fied to  try  may  be  transferred  by  him  to 


another  department  of  the  same  court,  in- 
stead of  to  the  superior  court  of  another 
county.  Petition  of  Los  Angeles  Trust  Co., 
158  Cal.  603;  112  Pac.  56;  Kegents  of  Uni- 
versity V.  Turner,  159  Cal.  541;  Ann.  Cas. 
1912C\  1162;  114  Pac.  842.  A  disqualified 
judge  may  call  in  a  judge,  who  is  not  dis- 
qualified, to  act  in  his  place.  Upton  v. 
Upton,  94  Cal.  26;  29  Pac.  411;  Paige  v. 
Carroll,  61  Cal.  215.  The  disqualified  judge 
has  no  discretion:  he  must  perform  the 
duty  imposed  by  this  section  (Parrish  v. 
Eiverside  Trust  Co.,  7  Cal.  App.  95;  93  Pac. 
685) ;  and  the  duty  imposed  is  not  satis- 
fied by  simply  calling  in  a  judge  who  is  not 
disqualified.  Remy  v.  Olds,  5  Cal.  Unrep. 
182;  42  Pac.  239.  'This  section  applies  to  a 
proceeding  in  eminent  domain,  where  the 
judge  is  disqualified  for  interest.  John 
Heinlen  Co.  v.  Superior  Court,  17  Cal.  App; 
660;  121  Pac.  293.  A  disqualified  judge 
may  arrange  the  calendar  and  adjust  the 
order  of  business,  but  it  has  no  power  to 
take  any  preliminary  step  in  the  prosecu- 
tion of  a  criminal  ease.  People  v.  Ehey,  6 
Cal.  App.  769;  93  Pac.  379. 


§399.  Papers  to  be  transmitted.  Costs,  etc.  Jurisdiction,  etc.  When 
an  order  is  made  transferring  an  action  or  proceeding  for  trial,  the  clerk 
of  the  court  or  justice  of  the  peace,  must  transmit  the  pleadings  and  papers 
therein  to  the  clerk  or  justice  of  the  court  to  which  it  is  transferred.  The 
costs  and  fees  thereof,  and  of  filing  the  papers  anew,  must  be  paid  by  the 
party  at  whose  instance  the  order  was  made  when  the  action  or  proceeding 
was  originally  commenced  in  the  proper  county.  In  all  other  cases  such 
costs  and  fees  shall  be  paid  by  the  plaintitf.  The  court  to  which  an  action 
or  proceeding  is  transferred  has  and  exercises  over  the  same  the  like  juris- 
diction as  if  it  had  been  originally  commenced  therein. 

Younglove   v.    Steinman,    80    Cal.    375;    22 
Pac.  189. 

Costs  and  fees.  One  party  may  pay  the 
costs,  and  procure  the  transfer  of  the 
papers  in  the  case,  where  they  aie  prop- 
erly chargeable  to  the  other  party.  Brooks 
V.  Douglass,  32  Cal.  208.  The  order  chan- 
ging the  place  of  trial  does  not  become 
void  for  non-payment  of  costs.  Chase  v. 
Superior  Court,  154  Cal.  789;  99  Pac.  355. 
Before  the  amendment  to  this  section  in 
1909,  the  costs  and  fees  were  payable  by 
the  party  at  whose  instance  the  order  was 
made.  Modoc  County  v.  Madden,  136  Cal. 
134;  68  Pac.  491;  Estep  v.  Armstrong,  69 
Cal.  536;  11  Pac.  132.  The  order  changing 
the  place  of  trial  divests  the  transferring 
court  of  jurisdiction,  and  vests  it  in  the 
court  to  which  the  transfer  is  made.  Chase 
V.  Superior  Court,  154  Cal.  789;  99  Pac.  355^ 


Costs. 

1.  On  removal  of  criminal  action,  chargeable 
against  county.    See  Pol.   Code,  §§  4345-4347. 

2.  On    changing    place    of   trial,    in   justice's 
court.     See  post,  §  836. 

Legislation  8  399.    1.  Enacted  March  11,  1873. 

3.  Amendpd  by  Stats.  1909,  c.  723.  in  sen- 
tence beginning  "The  costs,"  adding,  after  "was 
made,"  the  words  "when  the  action  or  proceeding 
was  originally  commenced  in  the  proper  county. 
In  all  other  cases  such  costs  and  fees  shall  be 
paid  by  the  plaintiff." 

Order  of  transfer.  An  order  for  transfer 
gives  jurisdiction  to  the  court  of  the  county 
to  which  the  action  is  transferred;  such 
jurisdiction  is  not  affected  by  irregularities 
in  the  manner  of  transmitting  the  papers, 
and  an  objection  thereto  will  not  be  heard 
for  the  first  time  on  appeal.  People  v. 
Suesser,  142  Cal.  354;  75  Pac.  1093.  It  is 
not  necessary  that  the  court  acting  upon 
the  motion  in  the  case,  shall  have  juris- 
diction by  a  previous  filing  of  the  notice. 


§400.  Proceedings  after  judgment  in  certain  cases  transferred.  When 
an  action  or  proceeding  affecting  the  title  to  or  possession  of  real  estate  has 
been  brought  in  or  transferred  to  any  court  of  a  county  other  than  the 


291  REAL  PROPERTY — CASE  TRANSFERRED — DUTY  OF  CI.ERK.  §  400 

county  in  which  the  real  estate,  or  some  portion  of  it,  is  situated,  the  clerk 
of  such  court  must,  after  final  judirment  therein,  certify,  under  his  seal  of 
office,  and  transmit  to  the  corresponding  court  of  the  county  in  which  the 
real  estate  affected  by  the  action  is  situated,  a  copy  of  the  judgment.  The 
clerk  receiving  such  copy  must  file,  docket,  and  record  the  judgment  in  the 
records  of  the  court,  briefly  designating  it  as  a  judgment  transferred  from 
court  (naming  the  proper  court). 

Legislation  s  400.     Enacted  March   11,   1873.       to   the   probate   Court   of   another   county; 

Trial  of  issue  in  probate.  The  probate  and  the  result  of  the  trial  can  be  certified 
court  of  one  county  has  jurisdiction  to  to  the  former  court.  People  v.  Almy  46 
change  the  place  of  trial  of  an  issue  of  fact       Cal.  245.  ' 


§§405,406 


MANNER    OF    COMMENCING    CIVIL    ACTIONS. 


292 


TITLE  V. 
MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


§  405.    Actions,  how  commenced. 

§  406.     Complaint,     how     indorsed.      When     sum- 

nio)is   may   be   issued,   and   how  waived. 
§  407.     Summons,  how  issued,  directed,  and  what 

to  contain. 
§  408.     Manner  and  time  of  issuing  alias  summons. 
§  409.     Notice     of     the     pendency     of     an     action 

affecting  the  title  to  real  property. 
5  410.     Summons,  how  served  and  returned. 


§411. 
§  412. 


§  413. 
§  414. 


§  415. 
§  416. 


Summons,  how  served. 

Cases  in  which  service  of  summons  may 
be  by  publication.  Certificate  of  resi- 
dence. 

Manner  of  publication. 

Proceedings  where  there  are  several  de- 
fendants, and  part  only  are  served. 

Proof  of  service,  how  made. 

When  jurisdiction  of  action  acquired. 


§  405.     Actions,  how  commenced.     Civil  actions  in  the  courts  of  this  state 
are  commenced  by  filing  a  complaint. 

complaint  was  ever  filed,  the  defendant, 
on  an  appeal  taken  by  him,  is  estopped  to 
deny  that  it  was  duly  filed.  Mahlstadt  v. 
Blanc,  3i  Cal.  577.  The  filing  of  the  com- 
plaint operates  to  stop  the  running  of  the 
statute  of  limitations,  only  as  to  those  who 
were  made  defendants  at  the  time  it  was 
filed;  the  filing  of  a  supplemental  com- 
plaint is  the  commencement  of  a  new  ac- 
tion as  to  added  defendants.  Jeffers  v. 
Cook,  58  Cal.  147.  The  statute  of  limita- 
tions declares  that  the  action  shall  be 
deemed  commenced,  within  its  meaning, 
"when  the  complaint  has  been  filed  in  the 
proper  court":  the  filing  of  the  complaint, 
without  the  issuance  of  summons  thereon, 
stojjs  the  running  of  the  statute.  Pimental 
V.  San  Francisco,  21  Cal.  351;  Allen  v. 
Marshall,  34  Cal.  165.  The  failure  of  a 
corporation  to  file  its  articles  of  incorpora- 
tion, simply  deprives  it  of  the  right  to 
maintain  an  action  until  the  statute  is  com- 
plied with.  Eiverdale  Mining  Co.  v.  Wicks, 
14  Cal.  App.  526;  112  Pac.  896. 

CODE  COMMISSIONERS'  NOTE.  1.  Actions, 
when  commenced.  Actions  are  commenced  by 
filing  complaint  and  issuing  summons.  Dupuy  v. 
Shear,  29  Cal.  239.  And  an  action  is  not  com- 
menced until  the  issuance  of  summons  under 
the  provisions  of  the  statute  limiting  the  time 
for  the  enforcement  of  mechanics'  liens.  Green 
V.  Jackson  Water  Co.,  10  Cal.  375.  The  pro- 
visions of  §  350.  that  actions  are  commenced 
within  the  meaning  of  the  statute  of  limitations, 
upon  the  filing  of  a  complaint  without  the  issuance 
of  summons,  does  not  apply  to  time  of  commen- 
cing an  action  for  the  enforcement  of  a  mechanic's 
such  an  action  is  not  commenced  until  corn- 


Legislation  §  405.  1.  Enacted  March  11,  1873  ; 
based  on  Practice  Act,  §  22  (New  York  Code, 
§  127),  as  amended  by  Stats.  1855,  p.  303,  which 
read:  "Civil  actions  in  the  district  courts,  supe- 
rior court  of  the  city  of  San  Francisco,  and  the 
county  courts,  shall  be  commenced  by  the  filing 
of  a  complaint  with  the  clerk  of  the  court  in 
which  the  action  is  brought,  and  the  issuing  of  a 
summons  thereon;  provided,  that  after  the  filing 
of  the  complaint  a  defendant  in  the  action  may 
appear,  answer  or  demur,  whether  the  summons 
has  been  issued  or  not,  and  such  appearance,  an- 
swer or  demurrer  shall  be  deemed  a  waiver  of 
summons."  When  enacted  in  1872,  §  405  had 
the  words  "and  the  issuing  of  summons  thereon'' 
at  the  end  of  the  section. 

2.   Amended    by  Code  Amdts.  1873-74,  p.  296. 

Actions,  how  commenced.  Under  the 
Practice  Act,  civil  actions  were  commenced 
by  filing  the  complaint  with  the  clerk  ot 
the  court,  and  the  issuance  of  summons 
thereon  (Ex  parte  Cohen,  6  Cal.  318;  Peo- 
ple v.  O'Neil,  47  Cal.  109;  Ex  parte  Hollis, 
59  Cal.  405;  Huerstal  v.  Muir,  62  Cal.  479; 
Adams  v.  Patterson,  35  Cal.  122) ;  and  the 
action  was  not  deemed  commenced  until 
summons  was  actually  issued.  Flandreau 
v.  White,  18  Cal.  639;  Green  v.  Jackson 
Water  Co.,  10  Cal.  374;  Sharp  v.  Maguire, 
19  Cal.  577.  The  mode  of  commencing  an 
action,  and  of  acquiring  jurisdiction  of  the 
parties,  is  controlled  by  the  code,  and  not 
by  the  common  law.  Dupuy  v.  Shear,  29 
Cal.  238;  Adams  v.  Patterson,  35  Cal.  122. 
Where  no  complaint  is  filed,  an  action  can- 
not be  considered  as  commenced.  Tinn  v. 
United  States  District  Attorney,  148  Cal. 
773;  113  Am.  St.  Eep.  354;  84  Pac.  152. 
An  action  was  commenced  when  the  origi- 
nal complaint  was  filed  (Allen  v.  Marshall, 
34  Cal.  165);  but  where  the  complaint  did 
not  state  a  cause  of  action  until  the  amend- 
ment thereof,  the  suit  was  not  deemed  com- 
mence<l  until  the  filing  of  the  amended 
complaint.  Anderson  v.  Mayers,  50  Cal. 
525.     Where  there  is  no  evidence  that  the 


plaint    is    filed    and    summons    issued.     See    Flan- 
dreau V.  White.   18  Cal.   640. 

2.  Action  commenced,  within  the  meaning  of 
statute  of  limitations.  The  action  is  commenced, 
within  the  meaning  of  the  title  as  to  time  of 
commencing  actions,  as  soon  as  the  complaint  is 
filed.  See  note  to  §  350,  ante  (statute  of  limita- 
tions), referring  to  Sharp  v.  Maguire,  19  Cal. 
577;  Pimental  v.  San  Francisco,  21  Cal.  351; 
Allen  V.  Mar.shall,  34  Cal.  165;  Adams  v.  Pat- 
terson, 35  Cal.  124. 

§  406.  Complaint,  how  indorsed.  When  summons  may  be  issued,  and  how 
waived.  The  clerk  must  indorse  on  the  complaint  the  day,  month,  and  year 
that  it  is  filed,  and  at  any  time  within  one  year  thereafter,  the  plaintiff  may 
have  a  summons  i.ssued,  and  if  the  action  be  brougcht  against  two  or  more 
defendants,  who  reside  in  different  counties,  may  have  a  summons  issued 
for  each  of  such  counties  at  the  same  time.     But  at  any  time  within  the 


293 


SUMMONS — ISSUANCE — SERVICE — WAIVER. 


§406 


year  after  the  complaint  is  filed,  the  defendant  may,  in  writing,  or  by  ap- 
pearing and  answering  or  demurring,  waive  the  issuing  of  summons ;  or,  if 
the  action  be  brought  upon  a  joint  contract  of  two  or  more  defendants,  and 
one  of  them  has  appeared  within  the  year,  the  otlier  or  others  may  be  served 
or  appear  after  tlie  year  at  any  time  before  trial. 

Service  of  summons.  When  the  defend- 
ant is  found  iuid  actually  served,  the  court 
acquires  Juris<[i(-tion  of  his  person;  and  the 
question  whether  there  has  been  reasonable 
diligence  in  making  the  service  within  the 
time  limited,  is  left  open,  to  be  considered 
and  decided  by  the  court  upon  the  facts 
of  the  case.  Murray  v.  Gleeson,  lUO  Cal. 
511;  35  Pac.  SS. 

Waiver  of  summons  by  appearance.  Ap- 
pearance by  attorney,  whether  authorized 
or  not,  binds  the  party,  excei)t  in  case  of 
the  fraud  or  insolvency  of  the  attorney 
(Suydam  v.  Pitcher,  4  Cal.  280;  Holmes  v. 
Rogers,  13  Cal.  191;  Sampson  v.  Ohleyer, 
22  Cal.  200) ;  and  answering  is  an  apj/ear- 
ance,  and  a  waiver  of  the  issuing  of  sum- 
mons (Hayes  v.  Shattuck,  21  Cal.'ol;  Shay 
V.  Superior  Court,  57  Cal.  5-11);  as  is  also 
consent  to  time  of  trial,  after  appearance. 
Cronise  v.  Carghill,  4  Cal.  120.  Where 
counsel  appears  exjiresslj^  for  two  named 
defendants,  his  signature  to  papers  in  the 
case,  thereafter,  as  attorney  for  the  de- 
fendants, will  be  considered  as  limited  to 
those  for  whom  he  expressly  appeared. 
Spangel  v.  Dellinger,  42  Cal.  148;  Hobbs  v. 
Duff,  43  Cal.  485;  K-nney  v.  Parks,  120  Cal. 
22;  52  Pac.  40.  Where  one  appears,  and 
objects  only  to  the  consideration  of  the 
case,  or  to  the  procedure,  for  want  of  juris- 
diction, the  appearance  is  special;  where 
he  ajipears,  and  asks  for  any  relief  which 
could  be  given  to  a  party  only  in  a  pend- 
ing case,  the  appearance  is  general,  no 
matter  hov.r  carefully  or  expressly  it  may 
be  stated  that  the  appearance  is  special;  it 
is  the  character  of  the  relief  asked,  not  the 
intention  of  the  party  that  it  shall  or  shall 
not  constitute  a  general  appearance,  which 
is  material.  In  re  Clarke,  125  Cal.  388:  58 
Pac.  22. 


Admission  of  service  ty  defendant.    Post,  §  415. 
Alias  summons.    Post,  §  408. 
Appearance.    Post,  §§  416,  1014. 

Legislation  S  406.  1,  Enacted  March  11,  1872; 
based  (in  Practice  Act,  §  23,  as  amended  by 
Stats.  1860,  p.  298,  which  read:  "The  clerk  shall 
indorse  on  the  complaint,  the  day,  month,  and 
year,  the  same  is  tiled,  and  at  any  time  within 
one  year  after  the  filing  of  the  same,  the  plain- 
tiff may  have  a  summons  issued.  'IMie  summons 
shall  be  signed  by  the  clerk  and  directed  to  the 
defendant,  and  be  issued  under  the  seal  of  the 
court."  When  enacted'  in  1872,  §  406  read: 
"The  clerk  must  indorse  on  the  complaint  the 
day,  month,  and  year  that  it  is  filed,  and  at  any 
time  within  one  year  thereafter  the  phiinlilf  may 
have  summons  issued.  But  at  any  time  after  the 
complaint  is  filed  the  defendant  may,  in  writing, 
or  by  appearing  and  answering  or  demurring, 
waive  the  issuing  of  summons." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  296. 
"3.  Amendment  by  Stats.  1901,  p.  129;  un- 
constitutional.     See  note  ante,  §  5. 

Issuance  of  summons.  The  only  object 
of  the  summons  is  to  bring  a  party  into 
court:  if  that  object  is  attained  by  the  ap- 
pearance and  pleading  of  the  party,  there 
can  be  no  injury  to  him.  Smith  v.  Curtis, 
7  Cal.  5S4;  P^rd  v.  Bushard,  116  Cal.  273; 
48  Pac.  119.  A  summons  is  to  be  issued, 
as  a  matter  of  course,  upon  application  to 
the  clerk;  no  order  by  the  court  or  judge 
is  required.  Dupuj'  v.  Shear,  29  Cal.  238. 
The  Practice  Act  required  that  a  copy  of 
the  complaint,  certified  by  the  clerk,  should 
be  served  with  the  summons;  and  it  v/as 
held  that  the  summons  was  not  issued, 
withiu  the  meaning  of  that  act,  unless  ac- 
companied by  a  certified  copy  of  the  com- 
plaint, and  all  papers  essential  to  a  vali<l 
personal  service  on  the  defendant,  duly 
attested.  Eeynolds  v.  Page,  35  Cal.  296. 
If  no  summons  is  issued  within  a  year 
after  the  filing  of  the  complaint,  the  action 
may  properly  be  dismissed.  Eeynolds  v. 
Page,  35  Cal.  296;  Grie^sbv  v.  Napa  County, 
36*Cal.  585;  95  Am.  Dec.  213;  Carpentier 
V.  Minturn,  39  Cal.  450;  Linden  etc.  Min- 
ing Co.  V.  Sheplar,  53  Cal.  245;  Cowell  v. 
Stuart,  69  Cal.  525;  11  Pac.  57;  Kubli  v. 
Hawkett,  89  Cal.  638;  27  Pac.  57;  First 
Nat.  Bank  v.  Nason,  115  Cal.  626;  47  Pac. 
595;  People  v.  Jefferds,  126  Cal.  296;  58 
Pac.  704. 

Time  of  issuance.  The  time  w-ithin 
which  a  summons  can  be  issued  is  limited 
to  one  vear  after  the  filing  of  the  com- 
plaint, bupuy  V.  Shear,  29  Cal.  238.  Be- 
fore the  amendment  of  §  23  of  the  Practice 
Act  in  1860,  a  summons  could  be  issued 
at  any  time  after  filing  the  complaint;  but 
it  was  doubtless  found  that  to  permit  sum- 
mons to  be  issued  at  any  time  would  in- 
definitely extend  the  statute  of  limitations. 
Dupuy  V.  Shear,  29  Cal.  238;  Eeynolds  v. 
Page.  35  Cal.  296. 


CODE  COMMISSIONERS'  NOTE.  1.  Sum- 
mons is  waived  by  voluntary  appearance  of  de- 
fendant. Although  the  action  is  said,  by  §  405 
of  the  code,  to  be  commenced  by  the  tiling"  a  com- 
plaint and  issuing  a  summons,  yet  by  §  416  it  is 
provided  that  a  voluntary  appearance  shall  be 
equivalent  to  personal  service  of  the  summons. 
Putting  in  an  answer  is  an  appearance,  and  such 
appearance  must  be  held  to  be  a  waiver  of  the 
mere  formality  of  issuing  a  summons,  the  service 
of  which,  in  such  case,  becomes  unnecessary. 
The  only  purpose  of  the  summons  is  to  bring  tlie 
defendant  into  court.  It  is  constantly  said  by 
courts,  when  actions  are  commenced  by  the  ser- 
vice of  process,  as  by  capias  ad  respondendum, 
that  a  voluntary  appearance  waives  all  defects  of 
process,  even  when  objection  is  taken  in  the  same 
action.  Under  our  practice,  the  plaintiff,  by  fil- 
ing his  complaint,  goes  himself  into  court;  and 
although  he  may  not  choose  to  take  out  a  sum 
mons,  we  think  he  cannot  object  to  the  defendant 
coming  in  and  answering  the  complaint,  any  more 
than  he  could  object  to  the  defendant's  voluntary 
appearance  after  the  plaintiff  had  taken  out  a 
summons  which  he  did  not  choose  to  serve. 
Quite   as   little   can    the   defendant    in   a   collateral 


406 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


294 


action  object  that  there  was  no  ac.iou  pending, 
after  having  voluntarily  put  in  an  answer  to  the 
complaint  on  file.    Hayes  v.  Shattuck,  21  Cal.  54. 

2.  Summons  is  waived  by  appearance  of  de- 
fendant's attorney.  See  Suydam  v.  Pitcher.  4  Cal. 
280. 

3.  When  appearance  by  mistake  does  not  avoid 
issuance  of  summons.  If  an  attorney,  authorized 
to  appear  for  a  part,  only,  of  several  defendants, 
inadvertently  files  an  answer  for  all,  and,  dis- 
covering his  mistake,  obtains  an  order  allowing 
him  to  withdraw  his  answer  and  file  a  new  one, 
limited  to  the  defendants  for  whom  he  intended 
to  answer,  the  court  acquires  jurisdiction  only 
of  those  defendants  for  whom  the  attorney  finally 
appears.    Forbes  v.  Hyde,  31  Cal.  342. 

4.  Time  when  suinuior.s  may  issue.  In  ISGO, 
this  section  was  amended  so  as  to  read  as  fol- 
lows: "And  at  any  time  within  one  year  after 
the  filing  of  the  same,  the  plaintiff  may  have  a 
summons  issued."  These  are  the  only  provisions 
prescribing  the  mode  of  commencing  suits  and 
authorizing  the  issue  of  a  summons.  The  sum- 
mons authorized  by  this  section  to  be  issued, 
whether  one  or  more,  issues  as  a  matter  of  course 
vipon  application  to  the  clerk.  The  party,  upon 
filing  his  complaint  and  ijaying  the  costs,  has  a 
right  to  it,  and  no  order  by  the  court  or  judge 
is  required.  But  the  section  was  amended  in 
1860,  and  limited  the  time  within  which  the  sum- 
mons provided  for  in  that  and  the  preceding 
section  could  be  issued  to  one  year  after  the  fil- 
ing of  the  complaint.  This  is  an  amendment 
which  merely  affects  the  mode  of  proceeding,  and 
all  procetdings  thereafter  taken  must  be  in  ac- 
cordance with  that  provision.  A  summons  there- 
after to  be  issued  as  a  matter  of  absolute  right, 
must  issue  by  virtue  of  the  provisions  of  the 
section  as  amended,  because  there  is  no  other 
provision  authorizing  the  issue  of  any  summons. 
Conceding,  then,  that  under  the  provisions  of 
§§  405  and  406,  a  party  may  have  more  than  one 
summons  issued  on  the  same  complaint,  they 
must  all  be  issued  within  the  time  prescribed, 
for  if  he  relies  upon  the  provisions  of  that  sec- 
tion to  establish  his  right,  he  cannot  have  moro 
than  these  provisions  authorize.  A  technical 
alias  summons  is  not  known  to  our  law,  and,  in 
fact,  under  our  system  of  practice,  there  is  no 
necessity  for  one.  The  summons  specifies  no  re- 
turn-day, and  when  it  has  once  been  issued,  it 
may  be  served  and  returned  at  any  time,  without 
reference  to  the  time  of  the  commencement  of 
the  next  term  of  court.  It  is  served  by  deliver- 
ing a  copy  to  the  defendant.  If  more  than  one 
summons  is  authorized  by  the  Practice  Act,  the 
second  has  no  necessary  connection  with  or  de- 
pendence upon  the  first.  It  is  based  upon  the 
complaint  alone.  Tlie  capias  ad  respondendum, 
under  the  common-law  system,  was  returnable  at 
the  next  succeeding  term  of  the  court,  and  a  re- 
turn of  the  writ  was  a  necessary  prerequisite  to 
the  is.suing  of  an  alias.  It  was  also  necessary, 
on  return  of  the  capias,  that  a  continuance-roll 
should  be  made  up,  and,  unless  there  was  a  con- 
tinuance, there  was  nothing  to  connect  an  alias, 
or  pUiries,  with  the  capias  upon  which  it  de- 
pended, and  the  suit  failed.  Unless  the  con- 
tinuity of  the  proceedings  was  kept  up  by  a 
continuance-roll  from  the  issuing  of  the  capias  to 
the  issuing  of  the  alias  or  pluries  upon  which  the 
defendant  was  arrested,  the  issue  of  the  capias 
within  th"  time  specified  in  the  statute  of  limita- 
tions would  not  save  the  action,  where  the  arrest 
was  made  on  an  alias  issued  after  the  statute 
had  run  tipon  the  demand  in  suit.  A  party 
might,  doubtless,  issue  as  many  writs  of  capias 
as  he  pleased  on  the  same  demand,  without  refer- 
ence to  the  return  of  the  prior  writ :  but  in  such 
cage  the  suing  out  of  such  writ  would  be  the 
institution  of  a  new  suit,  and  not  be  a  process 
in  the  same  suit.  But  these  principles  have  no 
relevancy  to  our  system.  Dupuy  v.  Shear,  29 
Cal.  2  11. 

5.  Service  of  summons  after  notice  of  motion 
to  dismiss  for  want  of  prosecution.  If  notice  is 
given  of  a  motion  to  di.smiss  an  aftion  for  want 
of  prosecution,  before  summons  is  served,  and  the 
plaintiff  then  serves  the  summons,  and  at  the  end 
of  ten  days  takes  a  default,  but  judgment  is  not 
entered  up,  the  entry  of  the  default  does  not  pre- 
clude the  court  from  dismissing  the  action.      The 


dismissal  takes  effect  by  relation  back  to  the 
time  of  service  of  the  motion.  Grigsby  v.  Napa 
County,   36  Cal.   585;   95  Am.  Dec.  213. 

6.  Dismissing  action  for  want  of  prosecution. 
This  court  will  not  reverse  a  judgment  dismiss- 
ing an  action  for  want  of  prosecution,  unless 
there  has  been  an  abuse  of  discretion  in  the 
court  below  in  giving  the  judgment ;  and  it  de- 
volves upon  the  appellant  to  show  such  abuse  of 
discretion;  and  allowing  an  action  to  rest  vvith- 
out  service  of  summons,  for  two  years  and  eight 
months  after  the  summons  is  issued,  is  such  a 
want  of  diligence  as  to  justify  the  court  in  dis- 
missing the  action.  Grigsby  v.  Kapa  County,  36 
Cal.  585;   95  Am.  Dec.  213. 

7.  When  the  court  must  order  summons  to 
issue.  If  the  court  had  any  authority  to  direct 
a  second  summons  to  issue,  after  the  expiration 
of  a  year  from  the  filing  of  the  complaint,  it 
must  be  because,  by  filing  the  complaint,  and  is- 
suing a  summons  thereon,  a  suit  had  been  com- 
menced, within  the  meaning  of  the  provisions  of 
the  Practice  Act,  and  there  was  thenceforth  a 
suit  pending  and  within  the  control  of  the  court, 
which  the  court,  by  virtue  of  its  general  powers 
over  the  subject-matter,  was  authorized  to  dis- 
pose of;  and,  as  incident  to  this  power,  it  was 
authorized  to  direct  process  to  issue  for  the  pur- 
pose of  acquiring  jurisdiction  of  the  person.  We 
can  perceive  no  other  ground  upon  which  to  base 
the  power  of  the  court  to  make  the  order.  Con- 
ceding this  authority  to  exist,  the  exercise  of  t-he 
power  rests  in  the  sound  legal  discretion  of  the 
court.  Ihe  order  for  the  issue  of  the  summons 
in  the  first  instance  (see  facts)  was  made  upon 
an  ex  parte  application,  and,  doubtless,  without 
much  consideration.  Afterwards,  the  question 
was  more  fully  considered  upon  the  motion  to 
vacate  the  order  and  set  aside  the  summons,  when 
both  parties  were  heard  upon  the  merits.  The 
cotirt  then  came  to  the  conclusion  that  the  order 
had  been  made  and  the  summons  issued  improvi- 
dently,  and  the  summons  was  thereupon  set  aside. 
The  court,  upon  a  full  hearing,  exercised  its 
judicial  discretion,  and  we  are  not  prepared  to 
sav  it  was  not  soundly  exercised.  Dupuy  v. 
Shear,   29   Cal.   242. 

8.  Issuance  of  summons  within  one  year. 
What  constitutes  issuance  of  summons.  Section 
410  provides  that  "at  any  time  within  one  year 
after  the  filing  of  the  same  [the  complaint]  the 
plaintiff  may  have  summons  issued"  ;  and  §  28 
provides  that  "a  copy  of  the  complaint  shall  be 
served  with  the  summons."  Under  this  last  pro- 
vision, the  service  of  a  copy  of  the  complaint  is 
held  to  be  essential  to  a  valid  service.  I\IcMillan 
V.  Reynolds,  11  Cal.  373.  ^^■hat  is  intended  by 
the  terms  "issuing  a  summons  thereon,"  and 
"may  have  a  summons  issued"  ?  Does  this  stat- 
ute simply  mean  the  delivery  of  the  technical 
summons  alone,  duly  signed  and  sealed?  or  does 
it  mean  that  the  summons  shall  be  issued  with 
the  accompanying  copy  of  the  complaint,  which 
is  absolutely  necessary  to  enable  the  plaintiff  to 
procure  a  valid  service?  It  is  evident  to  our 
minds  that  the  latter  is  the  true  construction. 
To  adhere  strictly  to  the  letter  in  this  instance, 
and  hold  the  delivery  of  a  summons  sufficient, 
would  truly  be  to  stick  in  the  bark.  The  issu- 
ing of  the  summons  intended,  is  issuing  it  ac- 
companied with  everything  necessary  to  enable 
the  party,  when  he  receives  it,  to  make  it  avail- 
able for  the  purpose  of  effecting  a  valid  service. 
The  issuing  of  a  summons  without  a  copy  of  the 
complaint  would  be  a  nugatory  act,  whereas 
something  practicTl  must  have  been  intended. 
The  summons  cannot  be  said  to  be  issued,  witliin 
the  moaning  of  the  act,  till  it  is  in  a  condition 
to  serve.  Before  the  amendment  of  1860,  the 
summons  might  be  issued  at  any  time  after  fil- 
ing the  complaint ;  but  by  the  amendment  of  that 
year  it  could  only  be  issued  within  a  year.  It 
was  doubtless  found  that  to  permit  the  summons 
to  be  issued  at  any  time,  without  limitation,  en- 
abled plaintiffs  to  indefinitely  extend  the  statute 
of  limitations.  At  all  events,  the  amendment 
was  adopted,  and  it  was  evidently  the  intention 
to  require  parties  to  proceed  with  their  litigation 
within  a  reasonable  time — to  place  themselves,  at 
least,  in  a  condition  to  effect  service  of  process. 
And  we  think  the  summons  not  issued,  within 
the  meaning  of  the  act,   till  all  the  papers  essen- 


295 


SUMMONS,    HOW    ISSUED,    DIRECTED,    AND    WHAT    TO    CONTAIN. 


407 


tial  to  enable  the  plaintiff  to  make  a  valid  per- 
sonal appearance  on  the  defendants,  duly  at- 
tested,   are   placed   at    his   disposal.     Reynolds    v. 


Page,    35  Cal.   300;   see  also  opinion  of  Rhoades, 
J.,  dissent  ifip. 

9.   Generally.    See  note  2  to  §  405. 


§  407.  Summons,  how  issued,  directed,  and  what  to  contain.  The  sum- 
mons must  be  directed  to  the  defendant,  signed  by  the  clerk,  and  issued 
under  the  seal  of  the  court,  and  must  contain : 

1.  The  names  of  the  parties  to  the  action,  the  court  in  which  it  is  brought, 
and  the  county  in  which  the  complaint  is  filed; 

2.  A  direction  that  the  defendant  appear  and  answer  the  complaint 
within  ten  days,  if  the  summons  is  served  within  the  county  in  which  the 
action  is  brought ;  within  thirty  days,  if  served  elsewhere ; 

3.  A  notice  that,  unless  the  defendant  so  appears  and  answers,  the  plain- 
tiff will  take  judgment  for  any  money  or  damages  demanded  in  the  com- 
plaint as  arising  upon  contract,  or  will  apply  to  the  court  for  any  other  relief 
demanded  in  the  complaint. 

3.  Amended  by  Stats.  1897,  p.  53. 

4.  Amendment  by  Stats.  1901,  p.  129;  un- 
constitutional.     See  note  ante,  §  5. 

Signed  by  the  clerk.  The  provision  of 
this  section,  that  the  summons  must  be 
signed  by  the  clerk,  is  sufficiently  complied 
with  by  affixing  a  printed  signature. 
Ligare  v.  California  Southern  R.  B.  Co., 
76  Cal.  610;  18  Pac.  777. 

Names  of  the  parties.  The  form  of  the 
summons  is  prescribed  by  law,  and  is  man- 
datory, not  directory;  it  must  contain  all 
that  is  required  by  the  statute,  whether 
deemed  needful  or  not,  and,  among  other 
things,  it  must  state  the  names  of  all  the 
parties  (Lyman  v.  Milton,  44  Cal.  630; 
Ward  V.  Ward,  59  Cal.  139);  but  the  name 
of  the  attorney  is  not  a  part  of  the  sum- 
mons. People  V.  Wrin,  143  Cal.  11;  76  Pac. 
646.  Where  there  are  several  defendants 
to  the  action,  it  is  not  sufficient  to  desig- 
nate some  as  et  al.,  which  indicates  that 
there  are  some  parties  who  are  not  named. 
Lyman  v.  Milton,  44  Cal.  630;  Ward  v. 
Ward,  59  Cal.  139. 

The  court  in  which  it  is  brought.  A 
summons  which  wrongly  designates  the 
court  of  the  county  in  which  brought  is 
sufficient  in  this  regard,  if  issued  under 
the  seal  and  attested  by  the  judge  of  the 
proper  court.    Crane  v.  Brannan,  3  Cal.  192. 

Direction  to  appear.  The  date  for  the 
appearance  of  the  defendant  must  be  fixed 
as  prescribed  by  the  code  (Deidesheimer 
V.  Brown,  8  Cal.  339);  and  where  radically 
defective,  the  service  must  be  set  aside. 
State  V.  Woodlief,  2  Cal.  241;  Porter  v. 
Hermann,  8  Cal.  619.  The  date  of  the  ap- 
pearance depends  upon  the  date  of  the  ser- 
vice. Savings  and  Loan  Society  v.  Thomp- 
son, 32  Cal.  347.  The  defendant  must 
appear  specially,  and  move  to  dismiss  a 
defective  summons  (Lvman  v.  Milton,  44 
Cal.  630;  Kent  v.  West,''50  Cal.  185;  Arroyo 
Ditch  etc.  Co.  v.  Superior  Court,  92  Cal. 
47;  27  Am.  St.  Eep.  91;  28  Pac.  54);  for 
defects  are  waived  by  pleading.  Sears  v. 
Starbird,  78  Cal.  225;  20  Pac.  547. 


Style  of  process.    Const.,  art.  vi,  §  20. 
Sovereignty,   resides  in.  the  people.    Pol.  Code, 
§  30. 

Legislation  §  407.  1.  Enacted  March  11,  1873  ; 
based  on  Practice  Act,  §§  23,  24,  25,  26.  (See 
ante.  Legislation  §  406,  for  §23.)  As  amended 
by  Stats.  1859,  p.  39,  §  24  read:  "The  summons 
shall  state  the  parties  to  the  action,  the  court 
in  which  it  is  brought,  the  county  in  which  the 
complaint  is  filed,  the  cause  and  general  nature 
of  the  action,  and  require  the  defendant  to  ap- 
pear and  answer  the  complaint  within  the  time 
mentioned  in  the  next  section,  after  the  service 
of  summons,  exclusive  of  the  day  of  service,  or 
that  judgment  by  default  will  be  taken  against 
him,  according  to  the  prayer  of  the  complaint, 
briefly  stating  the  sum  of  money  or  other  relief 
demanded  in  the  complaint,  and  the  clerk  shall 
also  indorse  on  the  summons  the  names  of  the 
plaintiff's  attorneys."  Practice  Act,  §  25,  read: 
"The  time  in  which  the  summons  shall  require 
the  defendant  to  answer  the  complaint,  shall  be 
as  follows:  1.  If  the  defendant  is  served  within 
the  county  in  which  the  action  is  brought,  ten 
days:  2.  If  the  defendant  is  served  out  of  the 
county,  but  in  the  district  in  which  the  action 
is  brought,  twenty  days;  3.  In  all  other  cases, 
forty  days."  Practice  Act,  §  26  (New  York 
Code,  §  129),  read:  "There  shall  also  be  inserted 
in  the  summons  a  notice,  in  substance,  as  fol- 
lows: 1.  In  an  action  arising  on  contract  for  the 
recovery  o:ily  of  money  or  damages,  that  the 
plaintiff  will  take  judgment  for  a  sum  specified 
therein,  if  the  defendant  fail  to  answer  the  com- 
plaint; 2.  In  other  actions,  that  if  the  defendant 
fail  to  answer  the  complaint,  the  plaintiff  will 
apply  to  the  court  for  the  relief  demanded 
therein."  When  enacted  in  1872,  §  407  read  the 
same  as  at  present  to  the  end  of  ^ubd.  1,  and 
the  remainder  of  the  section  read:  "2.  Tlie  cause 
and  general  nature  of  the  action;  3.  A  direction 
that  the  defendant  appear  and  answer  the  com- 
plaint within  ten  days,  if  the  summons  is  served 
within  the  county  in  which  the  action  is  brought; 
within  twenty  days,  if  served  out  of  the  county 
tut  in  the  district  in  which  the  action  is  brought, 
and  within  forty  days  if  served  elsewhere;  4.  In 
an  action  arising  on  contract,  for  the  recovery  of 
money  or  damages  only,  a  notice  that  unless 
the  defendant  so  appears  and  answers  the  plain- 
tiff will  take  judgment  for  the  sum  demanded 
in  the  complaint  (stating  it)  ;  5.  In  other  actions, 
a  notice  that  unless  defendant  so  appears  and 
answers  the  plaintiff  will  apply  to  the  court  for 
the  relief  demanded  in  the  complaint.  The  name 
of  the  plaintiff's  attorney  must  be  indorsed  on 
the  summons." 

3.    Amended    by    Code    Amdts.    1880,    p.    13, 

(1)  changing  subd.  2  to  read:  "2.  A  statement 
of    thn    nature    of    the    action    in    general    terms"  ; 

(2)  changing  subd.  3,  after  the  words  "brought," 
to  read,  "within  thirty  days,  if  served  else- 
where." 


407 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


296 


Notice  to  be  contained  in  summons. 
This  section  does  not  assume  to  declare  the 
particulars  of  the  summons,  but  it  declares 
the  matters  it  must  contain;  and  a  sub- 
stantial compliance  with  its  requirements 
is  all  that  is  required.  Stanquist  v.  Heb- 
bard,  122  Cal.  268;  54  Pac.  841;  Granger 
V.  Sherriflf,  133  Cal.  416;  65  Pac.  873.  A 
notice  that  the  plaintiff  will  take  judgment 
for  the  relief  demanded  in  the  complaint 
is,  in  substance,  a  notice  that  he  will  apply 
to  the  court  for  the  relief.  Clark  v.  Palmer, 
90  Cal.  504;  27  Pac.  375;  People  v.  Dodge, 
104  Cal.  487;  38  Pac.  203.  A  summons 
that  does  not  apprise  the  defendant  that, 
upon  his  failure  to  appear  and  answer,  the 
plaintiff  will  take  judgment  against  him,  is 
fatallv  defective.  Porter  v.  Hermann,  8 
Cal.  619;  Keybers  v.  McComber,  67  Cal. 
395;  7  Pac.  838.  Eeference  to  the  com- 
plaint on  file  is  sufficient,  even  though 
there  is  an  amended  complaint.  Dowling 
V.  Comerford,  99  Cal.  204;  33  Pac.  853. 
Formerly,  the  code  required  the  summons 
to  state  the  cause  and  general  nature  of 
the  action  (King  v.  Blood,  41  Cal.  314; 
Bewick  v.  Muir,  83  Cal.  368;  23  Pac.  389; 
People  V.  Dodge,  104  Cal.  487;  38  Pac. 
203) ;  but  it  was  then  held  that  the  sum- 
mons was  sufficient,  if  it  stated  the  nature 
of  the  action  in  general  terms  (Bewick  v. 
Muir,  83  Cal.  368;  23  Pac.  389;  People  v. 
Dodge,  104  Cal.  487;  38  Pac.  203),  or  if 
the  nature  of  the  action  was  described  by 
reference  to  the  complaint  served  there- 
with (Calderwood  v.  Brooks,  28  Cal.  151); 
it  was  sufficient,  however,  if  it  stated  sub- 
stantially the  cause  and  general  nature  of 
the  action  set  forth  in  the  complaint  (Peo- 
ple V.  Greene,  52  Cal.  577);  and  if  defect- 
ively stated,  it  made  the  action  voidable 
only.  People  v.  Dodge,  104  Cal.  487;  38 
Pac.  203.  The  summons  is  not  void  be- 
cause the  relief  asked  for  is  stated  in  the 
alternative.  Stanquist  v.  Hebbard,  122  Cal. 
268;  54  Pac.  841.  If  the  summons  is 
radically  defective  for  want  of  legal  suf- 
ficiency, the  whole  proceeding  may  be 
dismissed,  but  not  for  want  of  some  imma- 
terial recitation  which  does  not  affect  the 
rights  of  the  parties  (Polock  v.  Hunt,  2 
Cal.  193;  Whitwell  v.  Barbier,  7  Cal.  54); 
but  the  court  has  power  to  amend  a  sum- 
mons, pending  its  service.  Baldwin  v. 
Foster,  157  Cal.  643;  108  Pac.  714.  While 
the  Practice  Act  required  the  answer  to  be 
filed  within  a  limited  time  after  service  of 
the  summons,  yet  the  defendant  could  put 
in  an  answer  at  any  time  before  final  judg- 
ment, even  after  default  entered,  and  with- 
out application  to  the  court  for  that  pur- 
pose.   Stevens  v.  Boss,  1  Cal.  94. 

Amendment  of  summons.  The  summons 
is  the  process  whereby  parties  defendant 
are  brought  into  court  so  as  to  give  the 
court  jurisdiction  of  their  persons.  Nellis 
V.  Justices'  Court,  20  Cal.  App.  394;  129 
Pac.    472.     The    court    has    full    power    to 


amend  its  process,  pending  service  thereof; 
and  it  must  be  presumed,  where  an  amended 
summons  is  collaterally  attacked,  that  it 
was  properly  issued  upon  an  order  of  the 
court,  where  nothing  appears  to  the  con- 
trary. Baldwin  v.  Foster,  157  Cal.  643;  108 
Pac.  714. 

Effect  of  summons  issued  without  seal  of  court. 

See  note  20  L.  R.  A.  425. 

Description  of  parties  in  process.  See  note  40 
L.  R.  A.    (N.  S.)   566. 

CODE  COMMISSIONEES'  NOTE.  The  preced- 
ing section  embodies  iii  a  condensed  form  the 
substance  of  §§24,  25,  and  26,  and  the  last 
clause  of  §  23,   of  the  Practice  Act. 

1.  Form  of  summons.  Proceeding  by  defend- 
ant on  defective  summons.  "The  summons  is 
the  process  by  which  parties  defendant  are 
brought  into  court,  so  as  to  give  the  court  juris- 
diction of  their  persons.  Its  form  is  prescribed 
by  law:  and  whatever  the  form  may  be,  it  must 
be  observed,  at  least  substantially.  It  may  be 
that  a  summons,  under  our  system,  is  required 
to  state  more  than  is  necessary  for  the  informa- 
tion of  the  defendant;  that  a  copy  of  the  com- 
plaint served  by  the  sheriff  or  the  attorney 
would  have  been  all  that  is  needful.  If  that  be 
so,  it  is  a  matter  for  the  legislature,  and  not  for 
the  courts.  We  entertain  no  doubt  that  a  sum- 
mons must  contain  all  that  is  required  by  the 
statute,  whether  deemed  needful  or  not,  and, 
among  other  things,  must  state  the  parties  to 
the  action.  It  may  be  that  when  the  defendant 
moved  to  quash  the  summons  for  insufficiency, 
the  court  might  have  entertained  a  counter- 
motion  to  have  it  amended,  by  inserting  the 
omitted  names  of  the  defendants,  and,  on  its  be- 
ing so  amended,  might  have  denied  the  original 
motion.  In  Polock  v.  Hunt,  2  Cal.  193,  it  was 
held  that  the  court  had  power  to  amend  the 
summons  so  as  to  make  it  conform  to  the  law, 
when  it  operated  no  hardship  or  surprise  to  the 
defendants.  No  such  counter-motion,  however, 
was  made  in  this  case,  and  we  cannot  pass  upon 
that  question."     Lyman  v.   Milton,  44   Cal.   630. 

Motion  to  dismiss  defective  summons.  "A  de- 
fendant has  a  right  to  appear  for  the  purpose  of 
moving  to  dismiss  a  defective  summons,  and  it  is 
error  in  the  court  to  refuse  him  that  privilege. 
Nor  does  the  fact  that  he  afterwards  appears  and 
answers  waive  his  right  or  cure  the  error." 
Deidesheimer  v.  Brown,  8  Cal.  339;  Gray  v. 
Hav/es,  8  Cal.  569  ;     Lyman  v.  Milton,  44    Cal.  630. 

2.  Defective  summons.  Summons  must  ap- 
prise defendant  of  what.  In  an  action  for  fraudu- 
lently converting  money  of  plaintiff,  it  was  held 
that  "the  summons  was  fatally  defective  in  this, 
that  it  did  not  apprise  the  defendant  that,  upon 
his  failure  to  appear  and  answer,  the  plaintiff 
would  take  judgment  against  him  for  fraudu- 
lently converting  the  property  of  the  plaintiff. 
The  notice  in  the  summons  was  that  "if  you  fail 
to  appear  and  answer  the  said  complaint,  as 
above  required,  the  said  plaintiff  will  take  judg- 
ment against  you  for  the  said  sum  of  $11,156.62, 
interest  and  costs,"  etc.  Under  such  a  notice 
the  plaintiff  could  only  take  an  ordinary  judg- 
ment upon  default  for  the  money  demanded.  A 
defective  summons  will  not  sustain  a  judgment 
by  default.  State  v.  Woodlief,  2  Cal.  241;  Por- 
ter V.   Hermann,   8   Cal.    625. 

3.  Defective  summons  will  not  support  judg- 
ment by  default.  If  the  summons  be  extremely 
defective  in  not  conforming  to  the  provisions  of 
the  code,  it  is  insufficient  to  support  a  judgment 
by  default.    State  v.  Woodlief,  2  Cal.  242. 

4.  Amendment  of  summons.  Court  has  power 
to  amend  rummons  so  as  to  make  it  conform  to 
law,  if  it  operates  no  hardship  or  surprise  to 
defendants.  Polock  v.  Hunt,  2  Cal.  194;  Lyman 
V.  Milton,  44  Cal.  630. 

5.  Object  of  summons.  Appearance  sufficient. 
The  only  object  of  a  summons  is  to  bring  a 
party  into  court,  and  if  that  object  be  obtained 
by  the  appearance  and  pleading  of  a  party,  there 
can  be  no  injury  to  him.  Smith  v.  Curtis,  7  Cal. 
587. 


297     ISSUANCE  OF  ALIAS  SUMMONS — NOTICE  OP  PENDENCY  OF  ACTION.      §§408,409 


6.  Time  In  which  summons  shall  require  de- 
fendant to  answer.  Subdivision  :i  of  this  section 
allows  a  party  ten  days  after  the  service  of  the 
summons  to  file  his  answer,  if  served  in  the 
county;  twenty  days  if  out  of  the  county,  but 
■within  the  judicial  district;  and  forty  days  in  all 
other  cases.  A  nonresident  of  the  "state  would 
therefore  come  under  the  last  clause,  and  be  en- 
titled to  forty  days  after  the  service  of  the  sum- 
mons.    Grewell   v.   Henderson,    '>   Cal.   465. 

Time  to  answer  when  summons  is  served  by 
publication.  And  if  summons  is  served  by  publi- 
cation on  defendant,  non-resident  of  the  state, 
he  has  forty  days  after  the  lapse  of  the  period 
of  publication.     Grewell  v.   Henderson,  5   Cal.  4(i.5. 

7.  Judicial  notice  of  local  divisions  of  state, 
counties,  etc.,  under  subdivision  3.  Courts  take 
judicial  notice  of  the  territorial  e.xtent  of  the 
jurisdiction  and  sovereignty  exercised  de  facto 
by  their  own  government,  and  of  the  local  divis- 
ions of  the  country,  as  into  states,  counties, 
cities,    towns,    and    the    like,    so    far    as    political 


government    is   concerned.     People  v.  Smith,    1  Cal. 
9  ;    see  also  §  1H7."),  post. 

8.  Answer  filed  after  time  for  answering  has 
expired.  It  is  perhai)S  not  strictly  reRular  to 
file  the  answer  after  the  time  for  answering  has 
ex|)ircd,  without  leave  of  the  court.  Hut  if  the 
default  of  the  defendant  had  not  been  entered, 
we  think  the  filing  was  not  a  nullity.  It  was, 
at  most,  a  mere  irregularity,  for  wliich  the  an- 
swer might  have  been  stricken  out,  but  on  ac- 
count of  which  the  plaintiff  was  not  entitled  to 
liave  it  set  aside,  unless  the  court,  in  the  exer- 
cise of  its  discretion,  deemed  such  to  be  the 
proper  course.  'J'he  whole  proceedings  were  in 
fieri,  and  our  opinion  is,  that  the  court  had 
absolute  power,  either  to  retain  the  answer  or 
to  permit  another  to  be  filed,  or  to  pursue  what- 
ever course  in  that  respect  the  justice  of  the 
case  required.  A  defendant  cannot,  for  these 
purposes,  be  considered  in  default  until  his  de- 
fault has  been  actually  entered  in  accordance 
with  the  statute.  Bowers  v.  Dickerson,  18  Cal. 
421. 


§  408.  Manner  and  time  of  issuing  alias  summons.  If  the  summons  is  re- 
turned without  being  served  on  any  or  all  of  the  defendants,  or  if  it  has  been 
lost,  the  clerk,  upon  the  demand  of  the  plaintiff,  may  issue  an  alias  sum- 
mons in  the  same  form  as  the  original;  provided,  that  no  such  alias  summons 
shall  be  issued  after  the  expiration  of  one  year  from  the  date  of  the  filing  of 
the  complaint. 

New  summons,  In  action  for  forcible  entry  and 
detainer.     See  post,  §  1167. 

Legislation  §  408.  1.  Enacted  March  11,  1873, 
and  then  read:  "If  the  summons  is  returned 
without  being  served  on  any  or  all  of  the  defend- 
ants, the  clerk,  upon  the  demand  of  the  plaintiff, 
may  issue  an  alias  summons  in  the  same  form 
as  the  original." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  90, 
adding  the  words  "or  if  it  has  been  lost." 

3.  Amended  by  Stats.   1887,  p.   50. 

4.  Amendment  by  Stats.  1901,  p.  130;  un- 
constitutional.     See  note  ante,  §  5. 

Time  for  issuance  of  alias  summons. 
The  clerk  cannot  issue  an  alias  summons 
after  the  time  fixed  by  statute  (White  v. 
Superior  Court,  126  Cal.  245;  58  Pac.  450; 
Modoc  Land  etc.  Co.  v.  Superior  Court, 
128  Cal.  255;  60  Pac.  848;  Siskivou  County 
Bank  v.  Hoyt,  132  Cal.  81;  64  Pac.  118; 
Sharpstein  v.  Eells,  132  Cal.  507;  64  Pac. 
1080;  Grant  v.  Mc Arthur,  137  Cal.  270; 
70  Pac.  88;  Swortfiguer  v.  White,  141  Cal. 
576;  75  Pac.  172);  but  this  does  not  impair 
the  power  of  the  court  to  authorize  a  sum- 
mons to  be  withdrawn  for  further  service 
or  service  by  publication.  Rue  v.  Quinn, 
137  Cal.  651;  66  Pac.  216;  70  Pac.  732.  An 
alias  summons,  issued  at  any  time  prior 
to   the   commencement   of   the   publication 

§  409.  Notice  of  the  pendency  of  an  action  affecting  the  title  to  real  prop- 
erty. In  an  action  affecting  the  title  or  the  right  of  possession  of  real 
property,  the  plaintiff,  at  the  time  of  filing  the  complaint,  and  the  defendant, 
at  the  time  of  filing  his  answer,  when  atifirmative  relief  is  claimed  in  such 
answer,  or  at  any  time  afterAvards,  may  record  in  the  office  of  the  recorder 
of  the  county  in  which  the  property  is  situated,  a  notice  of  the  pendency  of 
the  action,  containing  the  names  of  the  parties,  and  the  object  of  the  action 
or  defense,  and  a  description  of  the  property  in  that  county  affected  thereby. 
From  the  time  of  filing  such  notice  for  record  only,  shall  a  purchaser  or  en- 
cumbrancer of  the  property  affected  thereby  be  deemed  to  have  constructive 


service  ordered,  is  sufficient  to  sustain  a 
default  judgment.  Doyle  v.  Hampton,  159 
Cal.  729;  116  Pac.  39.  The  issuance  of  an 
alias  summons  may  be  assuined  from  the 
recitals  of  the  judgment.  Doyle  v.  Hamp- 
ton, 159  Cal.  729^  116  Pac.  39. 

Form  of  alias  summons.  The  provision 
of  this  section  as  to  the  form  of  an  alias 
summons  means  no  more  than  that  it  shall 
conform  to  the  requirements  of  §  407,  ante; 
it  does  not  preclude  the  insertion  therein 
of  the  name  of  a  defendant,  omitted, 
through  a  clerical  error,  from  the  origi- 
nal summons.  Doyle  v.  Hampton,  159  Cal. 
729;  116  Pac.  39.  This  section  has  no  ref- 
erence to  the  service  of  an  alias  summons, 
where  parties  are  brought  in  by  order  of 
the  court,  or  by  stipulation,  under  the  pro- 
vision of  §  389,  ante,  and  does  not  preclude 
service  by  publication.  Bank  of  Venice  v. 
Hutchinson,  19  Cal.  App.  219;  125  Pac. 
252.  Unlike  a  summons,  the  length  of 
l^ersonal  notice,  by  citation,  in  a  probate 
proceeding,  may  be  prescribed  by  the 
court;  otherwise  it  is  five  days.  San  Fran- 
cisco Protestant  Orphan  Asylum  v.  Su- 
perior Court,  116  Cal.  443;  48  Pac.  379. 


409 


MANNER  OF  COMMENCING  CIVIL  ACTIONS, 


298 


notice  of  the  pendency  of  the  action,  and  only  of  its  pendency  against  parties 
designated  by  their  real  names. 


Lis  pendens,  in  suit  to  quiet  title.  See  post, 
S  749. 

Partition.  Recording  notice  of  suit.  Post, 
§  75o. 

Person  in  possession  of  real  property,  action 
against,  cannot  be  prejudiced  by  any  alienation 
made  by  him.     Post,  §  747. 

Legislation  §  409.  1.  Enacted  March  11,  1S73  ; 
ba.sed  on  Practice  Act,  §  27  (New  York  Code, 
§  132),  which,  as  amended  by  Stats.  1871- 1 2, 
p.  189,  read:  "In  an  action  aiifecting  the  title  to 
real  property,  or  the  right  to  the  possession  of 
real  property,  the  plaintiff,  at  the  time  of  filing 
his  complaint,  and  the  defendant,  at  the  time  of 
filing  his  answer,  when  affirmative  relief  is 
claimed  in  such  answer,  or  at  any  time  after- 
wards, may  record  with  the  county  recorder  of 
the  county  in  which  the  property  is  situated,  a 
notice  of  the  pendency  of  the  action,  containing 
the  names  of  the  parties  to  and  the  object  of  the 
action,  and  a  description  of  the  property  in 
that  county  affected  thereby;  and  the  defendant 
may  also,  in  such  notice,  state  the  nature  and 
extent  of  the  relief  claimed  in  the  answer.  From 
the  time  of  filing  for  record  only,  shall  the 
pendency  of  the  action  be  constructive  notice  to 
a  purchaser  or  encumbrancer  of  the  property 
affected  therebv."  When  enacted  in  1872,  (1) 
the  words  "the  title  to,"  before  "real  property," 
were  omitted,  (2)  after  the  latter,  the  words  "or 
the  right  to  the  possession  of  real  property" 
were  omitted.  (3)  before  "complaint,"  the  word 
"his"  was  changed  to  "the,"  (4)  the  words 
"record  with  the  county  recorder"  were  changed 
to  "file  with  the  recorder,"  (5)  the  words  "or 
defense"  were  added  before  "and  a  de.scription,^^ 
(6)  the  clause  beginning  "and  the  defendant" 
and  ending  "answer"  was  omitted,  (7)  the  words 
"filing  for  record  only,  shall"  were  changed  to 
"filing,  only,  is."  and  (8)  the  word  "be"  was 
omitted   before    "constructive." 

2.  Amended   by  Code  Aradts.  1873-74,  p.  297. 

3.  Amendment  by  Stats.  1901,  p.  130;  un- 
constitutional.     See  note  ante,  §  5. 

Notice  of  pendency  of  action.  The  com- 
mon-law doctrine  in  reference  to  pur- 
chasers pendente  lite  is  qualified  by  this 
section;  and  a  purchaser  pendente  lite, 
though  not  a  party,  is  not  bound  by  the 
result  of  the  controversy,  unless  notice  of 
lis  pendens  is  filed  with  the  recorder. 
Eichardsou  v.  White,  18  Cal.  102;  Ault  v. 
Gassaway,  18  Cal.  205;  Grattan  v.  "Wig- 
gins, 23"  Cal.  16;  Horn  v.  Jones,  28  Cal. 
194;  Corwin  v.  Bensley,  43  Cal.  253;  Par- 
tridge V.  Shepard,  71  Cal.  470;  12  Pac.  4S0; 
Warnock  v.  Harlow,  96  Cal.  298;  31  Am. 
St.  Eep.  209;  31  Pac.  166;  McNamara  v. 
Oakland  Building  etc.  Ass'n,  132  Cal.  247; 
64  Pac.  277.  Notice  of  lis  pendens  is  not 
jurisdictional.  Blackburn  v.  Bucksport  etc. 
R.  R.  Co.,  7  Cal.  A  pp.  649;  95  Pac.  668. 

Character  of  actions  to  which  applicable. 
The  common-law  doctrine  of  lis  pendens 
did  not  apply  to  proceedings  before  a 
board  exercising  quasi-judicial  functions, 
but  only  to  those  before  a  court;  and  the 
statute  has  not  so  extended  it.  Curran  v. 
Shattuck,  24  Cal.  427.  The  object  of  the 
rule  in  equity  was,  not  to  restrict  the  right 
of  alienation  of  the  prevailing  party,  but 
to  hold  the  interest  of  the  losing  party  sub- 
servient to  the  judgment.  Corwin  v.  Ben- 
sley, 43  Cal.  253;  Welton  v.  Cook,  61  Cal. 
481.  It  does  not  apply  to  proceedings  in 
ejectment,  but  to  proceedings  in  chancery, 


the  purpose  of  which  is  to  "affect  titles" 
by  turning  equitable  estates  into  legal 
ones,  or  to  enforce  liens  upon  legal  es- 
tates (Wattson  v.  Dowling,  26  Cal.  124); 
nor  does  it  apply  to  actions  affecting  the 
possession  of  real  property,  but  only  to 
actions  which  operate  directly  on  the  title, 
and  by  the  result  of  which  some  change 
as  to  the  title  is  wrought;  examples  of 
which  are  found  in  actions  for  the  con- 
demnation of  real  estate,  and  for  the  spe- 
cific performance  of  contracts  relating 
thereto,  for  the  foreclosure  of  mortgages 
or  other  liens,  and  the  like.  Long  v, 
Neville,  29  Cal.  131;  Partridge  v.  Shepard, 
71  Cal.  470;  12  Pac.  480.  The  filing  of  a 
notice  of  lis  pendens  affects  only  those 
parties  designated  by  their  real  names. 
Davidson  v.  All  Persons,  18  Cal.  App.  723; 
124  Pac.  570.  Notice  of  lis  pendens,  filed 
during  the  pendency  of  a  divorce  suit,  has 
no  legal  significance.  Mayberry  v.  Whit- 
tier,  144  Cal.  322 ;  78  Pac.  16.  A  purchaser 
of  land  is  not  affected  by  proceedings  for 
its  condemnation,  where  no  notice  of  lis 
pendens  is  filed  (Bensley  v.  Mountain  Lake 
Water  Co.,  13  Cal.  306;  73  Am.  Dec.  575), 
as  this  section  applies  to  condemnation 
proceedings;  and  the  word  "purchaser"  in- 
cludes those  who  acquire  a  homestead  in- 
terest in  the  property.  Roach  v.  Riverside 
Water  Co.,  74  Cal.  263;  15  Pac.  776;  Mc- 
Namara V.  Oakland  Building  etc.  Ass'n, 
132  Cal.  247;  64  Pac.  277.  It  also  applies 
to  an  action  to  foreclose  the  lien  of  a 
street  assessment.  Page  v.  W.  W.  Chase 
Co.,  145  Cal.  578;  79  Pac.  278.  A  defend- 
ant asking  afiirmative  relief  in  a  cross- 
complaint  may  file  a  lis  pendens  (Black- 
burn V.  Bucksport  etc.  R.  R.  Co.,  7  Cal. 
App.  649;  95  Pac.  668);  and  notice  of  an 
action  affecting  the  title  to  real  estate  may 
be  recorded.  De  Wolfskill  v.  Smith,  5  Cal. 
App.  175;  89  Pac.  1001. 

Filing  of  notice  for  record.  The  plain- 
tiff in  an  action  to  establish  aud  enforce 
a  trust,  who  has  filed  notice  of  lis  pendeus 
therein,  is  entitled  to  be  made  a  party  to 
the  foreclosure  of  a  lien  upon  the  proji- 
ertv.  Raudall  v.  Duff,  79  Cal.  115;  3  L.  R. 
A.  "754;  19  Pac.  532;  21  Pac.  610.  The 
mere  pendency  of  an  action  does  not,  as 
at  common  law,  charge  a  subsequent  pur- 
chaser; but  notice  of  lis  pendens  must  ap- 
pear of  record.  Warnock  v.  Harlow,  96 
Cal.  298;  31  Am.  St.  Rep.  209;  31  Pac.  166; 
Carpenter  v.  Lewis,  119  Cal.  18;  50  Pac. 
925;  Commercial  Bank  v.  Pritchard,  126 
Cal.  600;  59  Pac.  130.  This  section  ap- 
plies only  to  actions  pending,  not  to  judg- 
ments and  decrees  rendereil,  which,  at  com- 
mon law,  were  notice  to  all  persons.  Grat- 
tan v.  Wiggins,  23  Cal.  16,  17;  Horn  v. 
Jones,  28  Cal.  194.  The  filing  of  a  notice 
of  lis  pendens  in  an  action  to  foreclose  a 
mortgage  does  not  operate  as  notice  to  the 


299 


NOTICE — ACTUAL  AND   CONSTRUCTIVE— EFFECT. 


§409 


grantees  of  the  mortgagor;  they  must  be 
maile  jiartios.    Jeffers  v.  Coolt,  58  C'al.   147. 

Constructive  and  actual  notice.  Tlio  ob- 
ject of  tl:e  notice  is  to  K'^'c  the  opportu- 
nity of  defense,  and  also  to  notify  third 
persons  of  the  litigation,  that  they  may  not 
pur>-hase,  except  advisedly  (Kichardson  v. 
White,  IS  Cal.  102) ;  and  was  intended  as 
a  substitute  for  the  rule,  that  the  pen- 
dency of  the  suit  was  itself  constructive 
notice;  and  where  a  party  has  actual  no- 
tice, he  is  as  much  bound  by  the  judg- 
ment as  if  lis  pendens  had  been  filed. 
Sampson  v.  Ohlcyer,  22  Cal.  200;  Black- 
burn V.  Bucksport  etc.  R.  R.  Co.,  7  Cal. 
A  pp.  649;  95  Pac.  668.  The  rules  of  law 
relating  to  actual  notice,  and  the  effect 
thereof  upon  parties  dealing  with  or  tak- 
ing possession  of  the  property  in  litigation, 
are  in  no  sense  changed  by  this  section. 
Sampson  v.  Ohleyer,  22  Cal'.  200.  The  fil- 
ing of  the  notice  of  lis  pendens  does  not 
operate  as  a  prior  recording  of  a  subse- 
quent conveyance;  nor  is  the  uotice  such 
an  instrument  as  the  statute  contemplates. 
VVarnock  v.  Harlow,  96  Cal.  298;  31  Am. 
St.  Rep.  209;  31  Pac.  166.  The  word  "in- 
strument," as  used  in  the  code,  will  invari- 
ably be  found  to  indicate  some  written 
paper  or  instrument,  signed  and  delivered 
by  one  person  to  another,  transferring  the 
title  to  or  creating  a  lien  upon  property, 
or  giving  a  right  to  a  debt  or  duty:  it  no- 
where embraces  a  writ  of  any  kind.  Hoag 
V.  Howard,  55  Cal.  564;  Warnoek  v.  Har- 
low, 96  Cal.  298;  31  Am.  St.  Rep.  209;  31 
Pac.  166.  Inquiry  whether  the  purchaser 
had  actual  notice  is  unnecessary,  for,  by 
the  terms  of  the  statute,  the  notice  of  lis 
pendens  filed  with  the  recorder  is  the  only 
notice  of  the  pendency  of  the  action  that 
binds  subsecjuent  encumbrancers  or  pur- 
chasers.   Corwin  v.  Bensley,  43  Cal.  253. 

Subsequent  purchaser  or  encumbrancer. 
If  any  defendant,  against  whom  judgment 
is  rendered,  was  in  possession  at  the  time 
of  the  commencement  of  the  action,  any 
other  party  who  took  possession  after  the 
filing  of  the  notice  of  lis  pendens,  or  with 
actual  notice  of  the  pendency  of  the  ac- 
tion, is  bound  by  the  judgment,  and  may 
be  dispossessed  by  execution,  the  same  as 
though  he  were  a  partv  to  the  judgment. 
Fogarty  v.  Sparks,  22  Cal.  142.  The  effect 
of  the  notice  of  lis  pendens  is  to  make  a 
subsequent  purchaser  a  mere  volunteer, 
affected  by  the  judgment  rendered  in  the 
action.  Gregory  v.  Haynes,  13  Cal.  591; 
Haynes  v.  Calderwood,  23  Cal.  409.  In  an 
action  affecting  title  to  real  estate,  the 
notice  of  lis  pendens  binds  purchasers 
from  the  defendants,  who  can  only  take 
subject  to  the  decree  rendered  in  the  ac- 
tion. Curtis  v.  Sutter,  15  Cal.  259;  Welton 
V.  Cook,  61  Cal.  481.  Notice  of  lis  pendens 
is  unnecessary,  in  an  action  to  enforce  a 
tax  lien  on  property;  the  assessment  cre- 
ates a  lien  which  is  not  extinguished  until 
the  tax  is  paid  or  the  property  is  sold;  and 


the  lien  of  the  judgment,  by  operation  of 
law,  relates  back  to  and  takes  effect  from 
the  date  of  the  assessment.  Reeve  v.  Ken- 
nedy, 43  Cal.  643.  Where  a  notice  of  lis 
pendens  is  filed,  the  defendant  cannot,  by 
transfer  of  his  possession,  defeat  the  ac- 
tion; if  the  law  were  otherwise,  it  would 
be  in  the  j)ower  of  the  defendant  to  put 
the  plaintiff  to  a  new  action  as  often  as 
he  thought  ju'oper  to  assign.  Sampson  v. 
Ohleyer,  22  Cal.  200;  Ferrca  v.  Chabot,  63 
Cal.  564. 

The  law  of  lis  pendens.  See  rotes  14  Am.  Dec. 
774;   39  Am.  Hep.  487;   56  Am.  St.  Hep.  Hr,:i. 

Effect  01  lis  pendens  upon  prior  executory  con- 
tract for  sale  of  land.    S^f  noU'  7  Ann.  (as.  Kiyj. 

Application  of  doctrine  of  lis  pendens  to  pur- 
chase after  judgmeut  and  before  institution  of 
proceedings  to  review.    See  note  9  Ann.  Cas.  987. 

i'lliug  of  lis  pendens  as  notice  of  assignment 
See  note  66  h.  K.   A.   771. 

Protection  to  one  purchasing  after  decree  and 
before  any  steps  have  been  taken  to  review  the 
same.    See  note  lu  L.  K.  A.    (N.  S.)   443. 

Effect  of  filing  of  lis  pendens  on  marketability 
of  title.    See  note  38  L.  K.  A.   (N.  S.)   29. 

CODE  COMMISSIONERS'  NOTE.  1.  Construc- 
tion of  section.  Applicable  to  suits  in  ejectment. 
Secliou  27  of  the  Practice  Act  reads  as  follows: 
"In  an  action  affecting  the  title  of  real  prop- 
erty, the  plaintiff,  at  the  time  of  filing  the  com- 
plaint, and  the  defendant,  at  the  time  of  filing 
his  answer,  when  affirmative  relief  is  claimed  in 
such  answer,  or  at  any  time  afterwards,  may  file 
with  the  recorder  of  the  county  in  whicli  the 
property  is  situated,  a  notice  of  the  pendency  of 
the  action,  containing  the  names  of  the  parties 
to,  and  the  object  of,  the  action  or  defense,  and 
a  description  of  the  property  in  that  county  af- 
fected thereby;  and  the  defendant  may  also,  in 
such  notice,  state  the  nature  and  extent  of  the 
relief  claimed  in  the  answer.  From  the  time 
of  filing,  only,  is  the  pendency  of  the  action  con- 
structive notice  to  a  purchaser  or  encumbrancer 
of  the  property  affected  thereby."  This  was  held, 
however,  to  have  no  relation  to  proceedings  in 
ejectment,  but  to  proceedings  in  chancery,  the 
purpose  of  which  is  to  aft'ect  titles  by  turning 
equitable  estates  into  legal  ones  or  to  dispose  of 
legal  estates  by  vendition  for  the  purpose  of 
satisfying  liens  upon  Ihem,  etc.  Wattson  v. 
Dowling,  26  Cal.  125.  So,  also,  it  was  held  that 
the  section  did  not  apply  to  actions  aft'ecting  the 
possession  of  real  property,  but  only  to  actions 
affecting  the  title — it  was  held  that  the  section 
only  applied  "to  actions  which  operate  directly 
upon  the  title,  and  by  the  result  of  which  some 
change  as  to  the  title  is  wrought;  examples  of 
which  are  found  in  actions  for  the  condemnation 
of  real  estate  and  the  specific  performance  of 
contracts  relating  thereto,  for  the  foreclosure  of 
mortgages,  or  other  liens  and  the  like."  Long 
V.  Neville,  29  Cal.  135.  In  order  to  remedy  this 
defect,  if  it  could  be  so  called,  and  make  the 
section  applicable  to  ejectment  suits,  the  legis- 
lature of  1872  passed  the  following  act:  Stals. 
1871-72,  p.  189.  "An  Act  to  amend  an  act  en- 
titled An  Act  to  regulate  proceedings  in  civil 
cases  in  courts  of  justice  of  this  state,  passed 
April  twenty-ninth,  eighteen  hundred  and  fifty- 
one."  Approved  March  2,  1872.  [Quoting  the 
act.]  But  as  this  act  is  amendatory  of  an  act 
which  is  repealed  by  the  code,  it  does  not  affect 
§  409,  and  is  repealed  when  the  code  takes  ef- 
fect, that  is,  on  the  first  day  of  January,  1873. 
See  §  18,  ante.  Section  409,  however,  accom- 
plishes the  same  object  by  omitting  the  words 
"title  to"  between  the  words  "affecting"  a?)d 
"real  property."  So  that  now  the  cases  of  Watt- 
son  V.  Dowling,  26  Cal.  125,  and  Long  v.  Neville, 
29  Cal.  135,  so  far  as  they  hold  that  this  sec- 
tion is  not  applicable  to  ejectment  suits,  etc., 
cease  to  be  of  any  effect.  It  is  clear  that  an 
action  which  affects  the  right  to  possession  of 
real  property  certainly  mt-st  be  held  as  "affect- 
ing real  property,"  and  consequently  this  sec- 
tion is  applicable  to  suits  in  ejectment  and  ac- 
tions   affecting    the    right    to    possession    of    real 


§409 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


300 


property    in    like    manner    with    actions    affecting 
ihe  title  to  real  property.  „•   u      j 

2.  Application  of  section.  In  Richardson  v. 
White  Iri  Cal.  106,  this  section  was  held  to  ap- 
ply to'  those  purchasing  or  taking  encumbrances 
upon  the  property  after  filing  of  notice  of  pen- 
dency of  the  action  (Ault  v.  Gassaway,  18  Cal. 
lio5);  but  this  section  only  applies  to  actions 
pending,  and  not  to  judgments  and  decrees  ren- 
dered, which,  at  common  law,  it  would  seem, 
were  'notice  to  all  persons.  Sorrell  v.  Carpenter, 
2  P.  Wms.  482;  24  Eng.  Reprint,  825;  Searle 
V.  Lane,  2  Vern.  37,  88;  23  Eng.  Reprint,  634, 
667;  Monell  v.  Lawrence,  12  Johns.  534;  Wat- 
lington  V.  Howley,  1  Dessaus.  (S.  C.)  170; 
Grattan  v.   \Viggins,   23    Cal.   38. 

3.  Section  not  applicable  to  proceedings  be- 
fore supervisors.  The  common-law  doctrine  of 
lis  pendens  does  not  apply  to  the  proceedings  be- 
fore a  board  of  supervisors.  Curran  v.  Shattuck, 
24  Cal.  434. 

4.  Purchaser  in  good  faith,  with  no  notice  of 
lis  pendens.  Where  proceedings  for  the  con- 
demnation of  property  were  pending,  a  purchaser 
in  good  faith,  where  no  notice  of  pendency  of  ac- 
tion is  filed,  is  unaffected  by  the  proceedings. 
Bensley  v.  Mountain  Lake  Water  Co.,  13  Cal. 
307;   73   Am.  Dec.   575. 

5.  Notice  of  pendency  of  suit  must  be  filed,  to 
have  effect  to  charge  purchaser.  Under  our  stat- 
ute, the  mere  pendency  of  a  suit  does  not  charge 
the  purchaser  of  the  subject  of  it  as  a  purchaser 
pendente  lite,  at  common  law.  A  notice  of  lis 
pendens,  to  have  that  effect,  must  be  filed  or  ap- 
pear of  record.  Head  v.  Fordyce,  17  Cal.  151. 
The  general  rule  is,  that  one  not  a  party  to  a 
suit  is  not  affected  by  the  judgment.  The  ex- 
ception at  common  law  is,  that  a  pendente  lite 
purchaser,  though  not  a  party,  was  so  affected; 
the  qualification  of  the  doctrine  made  by  our 
statute  is,  that  such  purchaser  is  not  affected, 
unless  notice  of  such  lis  pendens  be  filed  with 
the  recorder.  It  is  not  necessary  to  consider 
whether  actual  notice  would  not  supply  the  place 
of  this  constructive  notice,  for  the  bill  makes  no 
such  case.  The  common-law  doctrine  of  lis  pen- 
dens rests  upon  the  fiction  of  notice  to  all  per- 
sons of  the  pendency  of  suits;  and  to  remedy  the 
evils  which  might  grow  out  of  the  transfer  of 
apparent  legal  titles  or  rights  of  action  to  per- 
sons ignorant  of  litigation  respecting  them,  this 
provision  was  inserted  in  our  statute.  We  con- 
sider our  statute,  not  as  giving  new  rights  to  the 
plaintiff,  but  as  a  limitation  upon  the  rights 
which  he  had  before.  If  no  lis  pendens  be  filed, 
the  party  acquiring  an  interest  or  claim,  pen- 
dente lite,  stands  wholly  unaffected  by  the  suit. 
If  he  has  any  rights  which,  but  for  the  suit,  he 
could  set  up,  he  may  still  maintain  those  rights. 
But  he  would  not  be  foreclosed  by  a  judgment 
against  the  party  to  the  suit,  from  whom  he  ob- 
tained his  assignment.  The  object  of  the  statute 
evidently  was  to  add  to  the  common-law  rule  a 
single  term,  to  wit,  to  require  for  constructive 
notice  not  only  a  suit,  but  filing  a  notice  of  it; 
so  that  this  rule  is  as  if  it  read:  "The  com- 
mencement of  a  suit  and  the  filing  of  notice  of  it 
are  constructive  notice  to  all  the  world  of  the 
action,  and  purchasers  or  assignees,  afterwards 
becoming  such,  are  mere  volunteers,  and  bound 
by  the  judgment.  Richardson  v.  White,  18  Cal. 
106.  The  rule  of  law  v/as  settled,  that  "every 
man  is  presumed  to  be  attentive  to  what  passes 
in  the  courts  of  justice  of  the  state  or  sov- 
ereignty where  he  resides.  And  therefore  a  pur- 
chase made  of  property  actually  in  litigation, 
pendente  lite,  for  a  valuable  consideration,  and 
without  any  express  or  implied  notice,  in  point 
of  fact,  affects  the  purchaser  in  the  same  man- 
ner as  if  he  had  such  notice;  and  he  will  ac- 
cordingly be  bound  by  the  judgment  or  decree 
in  the  suit."  1  Story's  Equity,  §  405.  This  rule 
sometimes  operated  as  a  hardship  upon  parties 
who  had  no  actual  notice,  and  the  code  (§409) 
provides  that  the  plaintiff  or  defendant  may  file 
a  notice  of  the  pendency  of  the  action  with  the 
recorder  of  the  county  in  which  the  property  is 
situated,  and  the  law  provides,  that,  "from  the 
time  of  filing  only  shall  the  pendency  of  the  ac- 
tion be  constructive  notice  to  a  purchaser  or  en- 
cumbrancer of  the  property  affected  thereby." 
In  no  other  respect  are  the  rules  of  law  relating 
to   the   subject   changed   by  the   statute.     A   pur- 


chaser or  encumbrancer  of  property,  instead  of 
being  required  to  examine  all  the  suits  pending 
in  the  several  courts,  to  ascertain  whether  any 
of  them  relate  to  or  affect  the  real  estate  he  is 
negotiating  about,  has  now  only  to  examine  the 
notices  ot  lis  pendens  tiled  in  the  recorder's 
otifice  of  tile  couuiy  where  the  real  estate  is  situ- 
ated, and  he  is  only  bound  by  constructive  notice 
of  what  may  there  appear.  'Ihe  rules  of  law 
relating  to  actual  notice  of  a  pending  action,  and 
the  effect  of  such  actual  notice  upon  parties  deal 
ing  with  or  taking  possession  of  property  in 
litigation,  are  in  no  sense  changed  by  this  sec- 
tion of  the  Practice  Act,  but  remain  the  same 
as  before  this  law  was  passed.  Richardson  v. 
White,  18  Cal.  102;  Bensley  v.  Mountain  Lake 
Water  Co.,  13  Cal.  306;  73  Am.  Dec.  575;  Head 
V.  Fordyce,  17  Cal.  149;  Ault  v.  Gassaway,  18 
Cal.  205;   Sampson  v.  Ohleyer,   22   Cal.  210. 

6.  Purchaser  during  pendency  of  action,  but 
where  no  notice  is  filed.  If  a  party  purchases 
land  during  the  pendency  of  an  action  to  fore- 
close a  mortgage  on  it,  but  where  no  notice  of 
lis  pendens  has  been  filed,  and  he  purchase  with- 
out notice,  after  entry  of  default  but  before  final 
judgment,  he  is  not  bound  by  the  judgment,  even 
if  final  judgment  gives  constructive  notice  to  par- 
ties dealing  with  the  subject-matter.  Abadie  v. 
Lobero,   36  Cal.  400. 

7.  Effect  of  a  notice  of  pendency  of  action 
upon  subsequent  purchasers.  It  was  held  that 
the  efl'ect  of  the  lis  pendens  was  to  make  a  sub- 
sequent purchaser  a  mere  volunteer,  affected  by 
the  judgment  rendered,  or  which  might  be  ren- 
dered, in  the  suit,  of  the  peiidency  of  which 
notice  was  given.  Gregory  v.  Haynes,  13  Cal. 
594;  see  also  Gregory  v.  Haynes,  21  Cal.  446; 
and  these  cases  are  aftirmed  in  Haynss  v.  Calder- 
wood,  23  Cal.  410;  see  also  Curtis  v.  Sutter,  15 
Cal.  263.  Where  an  action  to  set  aside  a  fraudu- 
lent deed  was  commenced,  and  a  notice  of  the 
pendency  of  the  action  was  filed,  it  was  held 
that  a  party  who  bought  of  the  defendant  subse- 
quent to  the  filing  of  the  notice  of  lis  pendens 
was  bound  by  the  decree.  Hurlbutt  v.  Butenop, 
27  Cal.  56.  And  in  an  action  to  foreclose  a 
mortgage,  a  purchaser,  subsequent  to  notice  of 
lis  pendens  filed,  was  held  to  stand  in  the  same 
position  as  his  grantor,  as  to  the  issuance  of  a 
writ  of  assistance  in  favor  of  a  purchaser  under 
the  decree  of  foreclosure.  Montgomery  v.  Byers, 
21  Cal.  107.  A  notice  of  lis  pendens  having 
been  duly  filed,  a  party  purchising  from  the 
defendant  while  the  action  was  pending,  and  af- 
ter the  notice  was  filed,  is  bound  and  estopped 
by  the  judgment  therein.  Calderwood  v.  Tevis, 
23   Cal.   337. 

8.  Subsequent  purchaser  with  notice  of  lis 
pendens.  A  purchaser  of  land,  with  notice  of 
the  pendency  of  an  action  for  the  foreclosure  of 
a  mortgage  on  it,  or  a  purchaser  after  final  judg- 
ment, in  either  case  is  bound  by  the  judgment. 
Abadie  v.   Lobero,   36  Cal.   399. 

9.  Purchaser  pendente  lite,  estopped  by  the 
decree.  If  an  action  is  brought  against  a  cor- 
poration to  foreclose  a  mortgage,  purporting  to 
have  been  executed  by  it,  and  a  lis  pendens  is 
filed,  and  a  decree  is  rendered  enforcing  the 
mortgage,  a  party  who  buys  the  mortgaged  prop- 
erty, pendente  lite,  at  sheriff's  sale,  made  on  a 
judgment  which  does  not  enforce  a  lien  older 
than  the  lis  pendens,  is  estopped  from  saying 
that  the  mortgage  was  not  the  act  of  the  cor- 
poration. A  party  who  has  no  interest  in  mort  - 
gaged  property  at  the  time  an  action  is  brought 
to  foreclose  the  mortgage,  and  who  liuys,  pen- 
dente lite,  and  after  a  lis  pendens  has  been  filed, 
is  not  a  necessarv  party  to  the  foreclosure.  Horn 
V.  Jones,  28  Cal.  194. 

10.  Actual  notice  of  pendency  of  action,  of 
same  effect  as  filing  of  notice  of  lis  pendens.  If 
notice  of  lis  pendens  is  filed,  there  can  be  no 
doubt  that  every  party  acquiring  an  interest  in 
the  premises  subse(;ne:it  to  the  filing  would  have 
been  bound  by  the  judgment  in  the  foreclosure 
suit  without  being  made  a  party.  Hurlbutt  v. 
Butenop,  27  Cal.  56;  Horn  v.  Jones,  28  Cal. 
194;  Haynes  v.  Calderwood,  23  Cal.  409.  It 
does  not  appear  in  this  case  that  a  notice  of  lis 
pendens  was  in  fact  filed.  But  the  object  of  fil- 
ing such  a  notice  is  to  afford  constructive  notice 
of  the  pendency  of  the  action.  T'his  is  the  only 
effect    indicated    by    the    code    (§  409).     Th"    ob- 


301 


SUMMONS — COMPLAINT SERVICE — RETITRN. 


§410 


ject  bring  to  afford  notice,  actual  notioc  must 
certainly  be  as  effectual  as  constructive  notice 
under  the  statute.  We  can  perceive  no  good 
reason  why  a  party  taking  an  interest  in  a  tract 
of  land,  pending  a  proceeding  to  foreclose  a 
inorfg.TKe  upon  it.  with  actual  notice  of  the  ac- 
tion, should  not  be  bound  by  the  .iudgment,  al- 
though no  notice  of  lis  pendens  has  been  filed. 
We  think  he  is,  and  so  hold  the  law  to  be. 
Sharp  V.  Lumlev,  ,T4  Cal.  615;  see  also  Sampson 
V.   Ohlevor,   22   Cal.   210. 

11.  What  constitutes  actual  notice  of  pendency 
of  action.  In  this  case  a  foreclosure  suit  was 
commenced  before  the  petition  in  insolvency  was 
filed.  In  the  schedule  attached  to  the  petition 
in  insolvency,  the  debt,  and  the  mortgage  upon 
the  land  in  controversy  to  secure  it,  were  specifi- 


§ 


See 


See 


cally  described,  and  this  stntomont  appended: 
"Suit  for  foreclosure  commenced."  And  the  or- 
der of  the  .iudge  expressly  provided  "that  all 
actions  now  pending  may  be  prosecuted  to  judg- 
ment," This  order  allowed  the  action  for  fore- 
closure to  proceed;  and  the  assignee  in  insol- 
vency, and  all  parties  [lurchasing  from  him.  had 
notice  of  tbe  pendency  of  the  foreclosure  suit, 
and  tlipv  are  l)Ound  by  the  judgment.  Sharp  v. 
Lumlev,"  34   Cal.    615. 

Sntricient  notice  to  put  one  on  inquiry  as  to 
pendency  of  action.  See  Grattan  v.  Wigging, 
23    Cal.   38. 

12.-  When  an  action  is  considered  pending.  An 
action  is  still  pending,  after  a  default,  until 
final  judgment  has  been  entered.  Abadie  v. 
Lobero,  36  Cal.  400. 

410.  Summons,  how  served  and  returned.  The  summons  may  be  served 
by  the  sheriff  of  the  county  where  the  defendant  is  found,  or  by  any  other 
person  over  the  age  of  eighteen,  not  a  party  to  the  action.  A  copy  of  the 
complaint  must  be  served,  with  the  summons,  upon  each  of  the  defendants. 
When  the  summons  is  served  by  the  sheriff,  it  must  be  returned,  with  his 
certificate  of  its  service,  and  of  the  service  of  any  copy  of  the  complaint, 
where  such  copy  is  served,  to  the  office  of  the  clerk  from  which  it  issued. 
When  it  is  served  by  any  other  person,  it  must  be  returned  to  the  same  place, 
with  an  affidavit  of  such  person  of  its  service,  and  of  the  service  of  a  copy 
of  the  complaint,  where  such  copy  is  served. 

3.  Amended  by   Stats.  1893,   p.   207. 

4.  Amendment    by    Stats.    1901,    p.    130;    un- 

con.stitutional.      See   note  ante,  §  5. 

Copy  of  complaint  must  be  served.  A 
copy  of  the  complaint  must  be  served  with 
the  summons.  Southern  Pac.  E.  R.  Co.  v. 
Superior  Court,  59  Cal.  471.  The  Practice 
Act  did  not  require  a  copy  to  be  served  on 
each  defendant:  service  of  a  copy  on  one 
of  the  defendants  residing  in  the  county 
was  sufficient.  Calderwood  v.  Brooks,  28 
Cal.  151.  Where  the  summons  has  never 
been  served  upon  the  defendant,  the  ser- 
vice of  an  amended  complaint  upon  him 
is  void.  Powers  v.  Braly,  75  Cal.  237;  17 
Pac.  197. 

Keturn  of  sheriff.  In  making  service  of 
the  summons,  and  in  the  return  thereof, 
the  provisions  of  the  statute  must  be,  and 
must  appear  to  have  been,  substantially 
observed  and  followed  by  the  officer; 
otherwise  the  proceedings  cannot  be  sup- 
ported upon  a  direct  appeal.  People  v. 
Bernal,  43  Cal.  385.  The  failure  of  the 
return  to  show  that  a  copy  of  the  com- 
plaint was  served  is  a  mere  irregularity, 
and  does  not  affect  the  validity  of  the 
judgment.  Shirran  v.  Dallas,  21  Cal.  App. 
405;  132  Pac.  88,  454.  The  officer  may  al- 
ways amend  his  return  so  as  to  conform 
to  the  facts,  if  there  are  no  intervening 
riohts  to  be  affected.  Newhall  v.  Provost, 
6  Cal.  85;  Gavitt  v.  Doub,  23  Cal.  78;  Rous- 
set  v.  Bovle,  45  Cal.  64;  Hewell  v.  Lane, 
53  Cal.  213;  People  v.  Murback,  64  Cal. 
369;  30  Pac.  608;  Allison  v.  Thomas,  72 
Cal.  562;  1  Am.  St.  Rep.  89;  14  Pac.  309; 
Estate  of  Newman,  75  Cal.  213;  7  Am.  St. 
Rep.  146;  16  Pac.  887;  People  v.  Golden- 
son,  76  Cal.  328;  19  Pac.  161;  McGrath  v. 
Wallace.  116  Cal.  548;  48  Pac.  719.  A 
mistake  in  the  date  of  the  sheriff's  return 


Process,  liov.f  returnable  to  another  county. 
Pol.  Code,  §  4158. 

Ketura   of    sheriff,    prima   facie   evidence. 
Pol.  Code,  §  4159. 

Delay  of  sheriff  in  making  return,  liability. 
See   Pol.  Code,  §  4160. 

Legislation  §  410.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  28,  as  amended  by 
Stats.  1869-70,  p.  574,  which  read:  "The  sum- 
mons shall  be  served  by  the  sheriff  of  the  county 
where  the  defendant  is  found,  or  by  his  deputy, 
or  by  a  person  specially  appointed  by  him  or 
appointed  by  a  judge  of  the  court  in  which  the 
action  is  brought,  or  by  any  white  male  citizen 
of  the  United  States  over  twenty-one  years  of 
age,  who  is  competent  to  be  a  witness  on  the  trial 
of  the  action,  except  as  hereinafter  provided;  a 
copy  of  the  complaint  shall  be  served  with  the 
summons.  Where  the  summons  is  served  by  the 
sheriff  or  his  deputy,  it  shall  be  returned,  with 
the  certificate  or  affidavit  of  the  officer  of  its 
service  and  of  the  service  of  the  copy  of  the 
complaint,  to  the  office  of  the  clerk  from  which 
the  summons  issued.  When  the  summons  is 
served  by  any  other  person,  as  before  provided, 
it  shall  be  returned  to  the  office  of  the  clerk  from 
which  it  issued,  with  the  affidavit  of  such  person 
of  its  service,  and  of  the  service  of  a  copy  of 
the  complaint.  If  there  be  more  than  one  de- 
fendant in  the  action,  and  such  defendants  reside 
within  the  county,  a  copy  of  the  complaint  need 
be  served  on  only  one  of  the  defendants."  When 
enacted  in  1872,  §  410  read:  "The  summons  may 
be  served  by  the  sheriff  of  the  county  where 
the  defendant  is  found,  or  by  any  other  person 
not  a  party  to  the  action.  A  copy  of  the  com- 
plaint must  be  served  with  the  summons,  unless 
there  is  more  than  one  defendant  residing  in  the 
same  county,  in  which  case  a  copy  of  the  com- 
plaint must  he  served  upon  one  of  them.  When 
the  summons  is  served  by  the  sheriff  it  must  be 
returned,  with  his  certificate  of  its  service,  and 
of  the  service  of  a  copy  of  the  complaint,  to  the 
office  of  the  clerk  from  wliieh  it  issued.  When 
it  is  served  by  any  other  person  it  must  be  re- 
turned to  the  same  place,  with  an  affidavit  of 
such  person  of  its  service,  and  of  the  service  of 
a  copy  of  the  complaint." 

2.  Amended  by  Stats.  1873-74,  p.  297,  to 
read  as  at  present,  except  that  the  words  "upon 
each  of  the  defendants"  were  changed  from  "un- 
less two  or  more  defendants  are  residents  of  the 
same  county,  in  which  case  a  copy  of  the  com- 
plaint need  only  be  served  upon  one  of  such 
defendants." 


§410 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


302 


m 

Sea 


ay  be  corrected  at  any  time.  Eitter  v. 
.^^auuell,  11  Cal.  238;  70  Am.  Dec.  775; 
Herman  v.  Santee,  103  Cal.  519;  42  Am. 
St.  Eep.  145;  37  Pac.  509.  It  will  be  pre- 
sumed in  favor  of  the  officer  who  has  the 
general  power  of  making  the  service,  that 
he  discharged  his  duty  in  the  legal  mode. 
Curtis  V.  Herrick,  14  Cal.  117;  73  Am.  Dec. 
632.  A  defendant  who  was  legally  served, 
and  who  did  not  defend,  on  the  ground 
that  he  was  not  the  party  intended  to  be 
served,  cannot,  after  judgment  against 
him,  resist  its  enforcement  on  that  ground. 
Brum  V.  Ivins,  154  Cal.  17;  129  Am.  St. 
Eep.  137;  96  Pac.  876.  A  return,  that  the 
defendant  cannot  be  found  within  the 
county,  is  sufficient.  Rue  v.  Quinn,  137 
Cal.  651;  66  Pac.  216;  70  Pac.  732. 

Service  by  one  other  than  sheriff.  The 
right  to  serve  process  does  not  belong  to 
every  private  individual;  it  is  restricted  to 
a  particular  class,  and  as  to  them,  it  is 
given  to  be  exercised  only  under  particu- 
lar circumstances,  and,  to  be  legal,  the 
service  must  be  by  some  one  authorized, 
as  well  by  personal  capacity  to  act  as  by 
the  existence  of  the  particular  facts  which 
impart  the  authority  or  control  the  mode 
of  action;  the  validity  of  the  act  of  ser- 
vice depends  upon  its  being  authorized, 
and  it  must  appear  in  the  record.  McMil- 
lan V.  Reynolds,  11  Cal.  372.  The  pro- 
vision authorizing  service  by  one  other 
than  the  sheriff  has  been  held  constitu- 
tional. Hibernia  Sav.  &  L.  Soc.  v.  Clarke, 
110  Cal.  27;  42  Pac.  425;  Hahn  v.  Kelly, 
34  Cal.  391;  94  Am.  Dec.  742. 

Aifidavit  of  service.  A  certificate  by  a 
constable  is  not  sufficient  to  confer  juris- 
diction (Berentz  v.  Belmont  Oil  Mining 
Co.,  148  Cal.  577;  113  Am.  St.  Rep.  308; 
84  Pac.  47;  Berentz  v.  Kern  King  Oil  etc. 
Co.,  7  Cal.  Unrep.  214;  84  Pac.  45);  nor 
is  one  bv  a  deputy  sheriff.  Reinhart  v. 
Lugo,  86'Cal.  395;  21  Am.  St.  Rep.  52;  24 
Pac.  1089.  Where  the  service  is  made  by 
one  other  than  the  sheriff,  or  the  person  ap- 
pointed by  the  judge,  the  affidavit  should 
show  that  such  person  possessed  the  quali- 
fications enumerated  in  the  section;  but  an 
objection  goes  only  to  the  formality  of  the 
return,  which  may  be  amended;  and  the 
judgment  is  good  against  a  collateral  at- 
tack for  a  mere  irregularity  of  service. 
Dorente  v.  Sullivan,  7  Cal.  279;  Pellier  v. 
Gillespie,  67  Cal.  582;  8  Pac.  185.  The 
statute  does  not  require  the  summons  to 
be  filed,  but  only  returned  with  the  affi- 
davit of  service  to  the  ofllce  of  the  issuing 
clerk;  and  whore  returned  and  filed  with 
the  affidavit  annexed,  this  is  sufficient. 
Hibernia  Sav.  &  L.  Soc.  v.  Clarke,  110  Cal. 
27;  42  Pac.  425.  The  affidavit,  when  made 
by  a  person  other  than  the  sheriff,  must 
state  that  at  the  time  of  service  the  per- 
son making  the  same  was  over  eighteen 
vcars  of  age.  Maynard  v.  MacCroUish,  57 
Cal.  355;  Howard  v.  Galloway,  60  Cal.  10; 
Weil    V.    Bent,    60    Cal.    603;    Doerfler    v. 


Schmidt,  64  Cal.  265;  30  Pac.  816;  Lyons 
V.  Cunningham,  66  Cal.  42;  4  Pac.  938; 
Barney  v.  Vigoureaux,  75  Cal.  376;  17  Pac. 
433;  Horton  v.  Gallardo,  88  Cal.  531;  26 
Pac.  375;  Herman  v.  Santee,  103  Cal.  519; 
42  Am.  St.  Rep.  145;  37  Pac.  509.  Where 
a  person  other  than  the  sheriff  attempts 
to  make  service  upon  a  defendant  within 
the  county,  he  should,  as  a  rule,  be  re- 
quired to  show,  in  his  affidavit,  the  nature 
of  the  eft'ort  made  by  him  to  serve  the 
party,  and,  where  practicable,  give  the 
reasons  why  service  could  not  be  made. 
Kahn  v.  Matthai,  115  Cal.  689;  47  Pac.  698. 
An  affidavit  of  service  of  summons  may  be 
amended  nunc  pro  tunc.  Woodward  v. 
Brown,  119  Cal.  283;  63  Am.  St.  Rep.  108; 
51  Pac.  2,  542.  It  need  not  appear  by  the 
return  that  the  party  serving  a  summons 
in  unlawful  detainer  did  so  at  the  request 
of  the  plaintiff  or  his  attorney.  Block  v. 
Kearney,  6  Cal.  Unrep.  660;  64  Pac.  267. 
It  is  the  fact  of  profjer  service,  and  not 
the  proof  thereof,  that  gives  the  court  ju- 
risdiction. Morrissey  v.  Gray,  160  Cal. 
390;  117  Pac.  438. 

Amendment  of  return.  The  power  of 
the  court  to  order  returns  amended  is  not 
affected  by  mere  lapse  of  time,  or  by  the 
fact  that  the  officer  making  the  return  is, 
at  the  time  of  the  proposed  amendment, 
out  of  office.  Morrissey  v.  Gray,  160  Cal. 
390;  117  Pac.  438.  The  amendment  of  the 
return  is  permitted  in  support  of  the  judg- 
ment actually  given,  but  not  where  the 
effect  would  be  to  avoid  the  judgment,  or 
render  it  erroneous,  or  subject  it  to  re- 
versal. Morrissey  v.  Gray,  160  Cal.  390; 
117  Pac.  438.  Where  the  facts  conferring 
jurisdiction  exist,  but  the  record  of  them, 
by  way  of  the  return,  is  defective,  great 
liberality  is  allowed  in  permitting  an 
amended  return  to  be  filed.  Morrissey  v. 
Gray,  160  Cal.  390;  117  Pac.  438. 

Service  of  process  by  attorney  or  agent  of 
plaintiff.    See  note  102  Am.  St.  llvp.  694. 

CODE  COMMISSIONERS'  NOTE.  1.  Service 
of  summons  by  person  otber  than  the  slieriff. 
Formerly  §  28  of  the  Practice  Act  provided  that 
"service  of  summons  might  be  made  by,"  among 
other  persons,  "any  white  male  citizen  over 
twenty-one  years  of  age,  who  is  competent  to  be 
a  witness  on  the  trial  of  the  action,"  etc.,  and 
"a  copy  of  the  complaint,  certified  by  the  clerk, 
should  be  served  with  the  summons."  Under 
these  provisions,  affidavits  of  service  of  summons 
were  held  to  be  defective,  which  did  not  state 
that  the  person  serving  it  was  a  white  male  citi- 
zen, and  over  twenty-one  years  of  age,  and 
competent  to  testify;  and  that  a  certified  ropy 
of  the  complaint  accompanied  the  summons.  See 
McMillan  v.  Revnolds,  11  Cal.  378:  Hahn  v. 
Kellv,  34  Cal.  404;  94  Am.  Dec.  742;  Reynolds 
V.  Page,  35  Cal.  299;  Curtis  v.  Herrick,  14  Cal. 
119;  73  Am.  Dec.  632.  It  will  be  observed,  how- 
ever, that  §  410  of  the  code  omits  the  retiuire- 
ments,  that  the  person  making  service  shall  be  a 
"wliite  male  citizen  of  the  age  of  twenty-one 
years,"  and  also  that  the  copy  of  the  complaint 
shall  be  certified  by  the  clerk,  etc.  The  only 
requirement  is,  that  he  shall  not  be  a  party  to 
the  action.  Of  course,  as  a  matter  of  proof  of 
service,  he  must  be  competent  to  make  an  affida- 
vit. See  also  Dimick  v.  Campbell.  31  Cal.  239; 
ITahn  v.  Kelly,  34  Cal.  391,  94  Am.  Dec.  742, 
affirmed  in  Quivey  v.  Porter,  37  Cal.  458;  see 
also  Reynolds  v.  Page,  35  Cal.  299. 


303 


SUMMONS — SERVICE,  HOW  MADE,  AND  KINDS  OF. 


§411 


2.  Service  by  deputy,  and  his  return  thereon. 
The  return  of  the  service  of  summons  issued  in 
an  action  was  signed  Elijnli  T.  Cole,  D.  S.,  and 
it  was  held  th.it  such  a  return  was  insuthcient  to 
prove  service,  and  that  the  act  and  return  of  a 
deputy  is  a  nullity,  unless  done  in  the  name  and 
by  the  authority  of  the  sheriflf.  Rowley  v.  How- 
aid,  23  Cal.  403,  affirming  Joyce  v.  Joyce,  5  Cal. 
449 ;  and,  to  the  same  effect,  see  Lewes  v. 
Thompson,  3  Cal.  2G6. 

3.  Return  by  sheriff.  Amendments  thereto. 
Correction  of  mistakes.  The  slieriff  has  no  right, 
after  malting  a  return,  to  nmend  it  so  as  to  af- 
fect  rights   which   have   already   vested.     Newhall 


V.  Provost,  6  Cal.  87.  But  a  mistake  in  the  date 
may  be  corrected  any  time.  Ritter  v.  Scannell, 
11   Cal.   249;    70  Am.   Dec.   775. 

4.  Service  where  there  are  more  than  one  de- 
fendant residing  in  same  county.  Where  the 
aftidavit  states  the  co\inty  in  which  service  was 
made,  and  one  of  defendants  makes  default,  it 
will  Ido  presumed  that  he  was  a  resident  of  the 
county  where  service  was  made.  A  copy  of  the 
compI.Tint  need  be  served  on  but  one  of  several 
defendants  residing  in  same  county.  Calderwood 
V.  Brooks,  28  Cal.   1.'53. 

5.  Proof  of  service  of  summons  and  complaint. 
See  §  415,  post,  and  notes. 


§  411.  Summons,  how  served.  The  summons  must  be  served  by  deliver- 
ing a  copy  thereof  as  foliows: 

1.  If  the  suit  is  against  a  corporation  formed  under  the  laws  of  this  state : 
to  the  president  or  other  head  of  the  corporation,  vice-president,  secretary, 
assistant  secretary,  cashier  or  managing  agent  thereof. 

2.  If  suit  is  against  a  foreign  corporation,  or  a  non-resident  joint-stock 
company  or  association,  doing  business  and  having  a  managing  or  business 
agent,  cashier  or  secretary  within  this  state :  to  such  agent,  cashier  or  secre- 
tary. 

3.  If  against  a  minor,  under  the  age  of  fourteen  years,  residing  within 
this  state :  to  such  minor,  personally,  and  also  to  his  father,  mother,  or 
guardian:  or  if  there  be  none  within  this  state,  then  to  any  person  having 
the  care  or  control  of  such  minor,  or  with  whom  he  resides,  or  in  whose 
service  he  is  employed. 

4.  If  against  a  person  residing  within  this  state  who  has  been  judicially 
declared  to  be  of  unsound  mind,  or  incapable  of  conducting  his  own  affairs, 
and  for  whom  a  guardian  has  been  appointed :  to  such  person,  and  also  to 
his  guardian. 

5.  If  against  a  county,  city  or  town:  to  the  president  of  the  board  of 
supervisors,  president  of  the  council  or  trustees,  or  other  head  of  the  legisla- 
tive department  thereof. 

6.  In  all  other  cases  to  the  defendant  personally. 

Kinds  of  service.     Service  of  summona 

may  be  personal,  or,  in  some  cases,  by  pub- 


Association,  service  may  be  on  one  of  members 
of.     Ante,  §  388. 

Return  of  summons.    Post,  §  581a. 
Telegraph,  service  by.    Post,  §  1017. 

Legislation  §  411.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  29,  as  amended  by  Stats. 
1861,  p.  496),  and  then  read:  "§  411.  The  sum- 
mons must  be  served  by  delivering  a  copy  thereof, 
as  follows:  1.  [Same  as  the  present  amendment 
(1915)];  2.  If  the  suit  is  against  a  foreign  cor- 
poration, or  a  non-resident  joint-stock  company 
or  association  doing  business  and  having  a  man- 
aging or  business  agent,  cashier,  or  secretary 
within  this  state:  to  such  agent,  cashier,  or  secre- 
tary; 3.  If  against  a  minor  under  the  age  of  four- 
teen years:  to  such  minor  personally,  and  also 
to  his  father,  mother,  or  guardian  ;  or  if  there  be 
none  within  the  state,  then  to  any  person  having 
the  care  or  control  of  such  minor,  or  with  whom 
he  resides,  or  in  whose  service  he  is  employed; 
4.  If  against  a  person  judicially  declared  to  be 
of  unsound  mind  or  incapable  of  conducting  his 
own  atfairs,  and  for  whom  a  guardian  has  been  ap- 

f)oinled:  to  such  guardian ;"  [subds.  5  and  6  read- 
ng  the  same  as  the  present  amendment  ( 1915  ).  | 
S.  Amended  by  Code  Amdts.  1873-74,  p.  298. 
3.  Amended  by  Stats.  1915,  p.  943,  (1)  in 
subd.  1,  inserting  "vice-president"  and  "assist- 
ant secretary";  (2)  in  subd  2,  striking  out 
"the"  in  the  phrase  "If  the  suit";  (3)  in  subd. 
3,  second  clause,  "this"  substituted  for  "the," 
in  the  phrase  "within  the  state."  The  other 
changes  are  in  matters  of  punctuation,  probably 
the  result  of  carelessness. 


lication.  People  v.  Huber,  20  Cal.  81. 
"Personal  service"  means  the  actual  de- 
livery of  the  process  to  the  defendant  in 
person.  Holiness  Church  v.  Metropolitan 
Church  Association,  12  Cal.  App.  44.5;  1(J7 
Pac.  633.  Personal  service  of  -writs  and 
process  can  only  be  made  by  delivery  to 
the  person  (Edmondson  v.  Mason,  16  Cal. 
386) ;  and  where  the  return  shows  that 
the  summons  was  served  upon  one  not 
designated  as  the  defendant,  it  is  insuffi- 
cient. Adams  v.  Town,  3  Gal.  247.  "Per- 
sonal service"  upon  a  corporation,  domestic 
or  foreign,  is  made,  under  this  section,  by 
delivering  a  copy  of  the  summons,  together 
with  a  copy  of  the  complaint,  to  certain 
designated  officers  thereof.  Holiness  Church 
v.  Metropolitan  Church  Association,  12  Cal. 
App.  445;  107  Pac.  633.  A  party  regularly 
served,  though  by  a  wrong  name,  is  bound, 
unless  he  comes  in  and  sets  up  the  mis- 
nomer and  whatever  defense  he  may  have. 
Brum  V.  Ivins,  154  Cal.  17;  129  Am.  St. 
Eep.  137;  96  Pac.  876.  Service  on  a  for- 
eign corporation,  in  a  manner  other  than 


§411 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


304 


that  authorized  by  §  405  of  the  Civil  Code, 
though  a  person  desiguated  by  such  cor- 
poration, resident  in  the  state,  is  a  con- 
structive and  not  a  personal  service.  Holi- 
ness Church  v.  Metropolitan  Church  Asso- 
ciation, 12  Cal.  App.  445;  107  Pac.  633. 

Service  in  suit  against  domestic  corpora- 
tion. In  a  suit  against  a  domestic  cor- 
poration, service  must  be  upon  its  presi- 
dent or  other  head,  or  on  its  secretary, 
cashier,  or  managing  agent;  service  upon 
"J.  S.,  one  of  the  proprietors  of  the  com- 
pany," is  insufficient.  O'Brien  v.  Shaw's 
Flat  etc.  Canal  Co.,  10  Cal.  343.  Service 
must  be  made  upon  one  of  the  officers 
named  in  the  statute.  Aiken  v.  Quartz 
Rock  etc.  Mining  Co.,  6  Cal.  186;  O'Brien 
V.  Shaw's  Flat  etc.  Canal  Co.,  10  Cal.  343. 
Service  on  the  receiving  and  paying  teller 
of  a  bank  cannot  bind  the  corporation 
(Kennedy  v.  Hibernia  Sav.  &  L.  Soc,  38 
Cal.  151;  Blanc  v.  Paymaster  Mining  Co., 
95  Cal.  524;  29  Am.  St.  Rep.  149;  30  Pac. 
765) ;  but  service  upon  a  president  de  jure 
is  sufficient.  Eel  River  Nav.  Co.  v.  Struver, 
41  Cal.  616.  While  the  service  may  be 
on  the  president,  yet  the  sheriff  making 
the  service  must  make  the  return  accord- 
ing to  the  fact.  People  v.  Lee,  128  Cal. 
330;  60  Pac.  854. 

Action  against  a  foreign  corporation. 
A  foreign  corporation  must  be  "doing  busi- 
ness" in  this  state,  to  justify  service  upon 
it  through  a  managing  agent.  Dickinson  v. 
Zubiate  Min.  Co.,  11  Cal.  App.  656;  106 
Pac.  123.  A  single  transaction  by  a  for- 
eign corporation  does  not  constitute  doing 
business  within  the  state,  so  as  to  author- 
ize the  service  of  summons.  Jameson  v. 
Simbnds  Saw  Co.,  2  Cal.  App.  582;  84  Pac. 
289.  The  service  must  be  upon  the  per- 
son designated  by  the  corporation  as  its 
agent,  cashier,  or  secretary.  Eureka  etc. 
Canal  Co.  v.  Superior  Court,  66  Cal.  311; 
5  Pac.  490;  Jameson  v.  Simonds  Saw  Co., 
2  Cal.  App.  582;  84  Pac.  289.  Service  upon 
a  traveling  solicitor,  not  shown  to  be  a 
partner  or  managing  agent  of  a  copart- 
nership, is  not  sufficient.  Booth  v.  Gamble- 
Eobinson  Commission  Co.,  139  Cal.  175;  72 
Pac.  908.  Service  is  also  insufficient,  when 
made  on  a  person  whose  name  is  appended 
to  advertisements  as  general  manager  of  a 
railroad  "route,"  and  who  is  not  a  party 
to  the  action,  nor  has  ever  been  the  man- 
aging or  business  agent,  cashier,  or  sec- 
retary of  the  defendant,  within  this  state. 
Norton  v.  Atchison  etc.  R.  R.  Co.,  97  Cal. 
388;  33  Am.  St.  Rep.  198;  30  Pac.  585;  32 
Pac.  452.  The  term  "business  agent"  does 
not  mean  every  person  intrusted  with  a 
commission  or  an  employment  by  a  foreign 
corporation:  it  means  one  performing  the 
duties  of  managing  agent,  cashier,  or  sec- 
retary of  the  corporation.  .Jameson  v. 
Simonds  Saw  Co.,  2  Cal.  App.  582;  84  Pac. 
289.  The  service  of  summons,  in  this 
state,  upon  the  president  of  a  foreign  cor- 


poration, is  insufficient  to  support  a  judg- 
ment by  default,  where  neither  the  com- 
plaint nor  the  affidavit  of  service  of  sum- 
mons shows  the  required  statutory  facts. 
R.  H.  Herron  Co.  v.  Westside  Electric  Co., 
18  Cal.  App.  778;  124  Pac.  455. 

Service  in  action  against  a  minor.  The 
third  subdivision  of  this  section,  providing 
for  service  upon  an  infant,  has  no  applica- 
tion to  the  service  of  a  notice  in  a  special 
proceeding.  Estate  of  Hamilton,  120  Cal. 
421;  52  Pac.  708.  The  provision  requiring 
personal  service  upon  an  infant  under  the 
age  of  fourteen,  and  also  upon  his  guar- 
dian, is  mandatory.  Gray  v.  Palmer,  9  Cal. 
616.  An  infant  under  the  age  of  fourteen 
years,  not  served  with  process,  cannot 
nominate  the  attorney,  nor  can  the  court 
appoint  a  guardian  ad  litem  until  after 
service  upon  him  (McCloskey  v.  Sweeney, 
66  Cal.  53;  4  Pac.  943;  Redmond  v.  Peter- 
son, 102  Cal.  595;  41  Am.  St.  Rep.  204;  36 
Pac.  923;  Johnson  v.  San  Francisco  Sav. 
Union,  63  Cal.  554),  as  the  court  has  no 
right  to  appoint  a  guardian  until  the  in- 
fant is  brought  into  court.  Emeric  v. 
Alvarado,  64  Cal.  529;  2  Pac.  418.  Suffi- 
ciency of  service  of  summons  upon  minors. 
Richardson  v.  Loupe,  80  Cal.  490;  22  Pac. 
227. 

Service  in  action  against  person  of  un- 
sound mind.  In  an  action  against  an  in- 
competent person,  service  must  be  upon 
both  the  incompetent  and  his  guardian 
(Justice  V.  Ott,  87  Cal.  530;  25  Pac.  691); 
but  where,  although  the  person  is  alleged 
to  be  insane,  it  does  not  apear  that  any 
guardian  has  been  judicially  appointed, 
service  upon  the  defendant  personally  is 
sufficient.  Sacramento  Sav.  Bank  v.  Spen- 
cer, 53  Cal.  737.  No  valid  judgment  can 
be  rendered  against  an  insane  person,  un- 
less he  has  been  served  with  summons. 
In  re  Lambert,  134  Cal.  626;  86  Am.  St. 
Rep.  296;  55  L.  R.  A.  856;  66  Pac.  851. 

What  return  sufficient  in  justice's  court. 
Cardwell  v.  Sabichi,  59  Cal.  490. 

Citation,  how  served.  See  note  post, 
§  1709. 

Service  of  process  on  one  of  several  partners. 
See  notes  44  Am.  Dec.  570;  20  Ann.  Cas.  1238. 

Service  of  process  on  corporations.  See  note 
66  Am.  Dec.   119. 

Who  is  "agent"  within  statute  providing  for 
service  of  process  on  agent  of  foreign  corporation. 
See  note  19  Ann.  Cas.  200. 

Who  may  be  served  in  suit  against  foreign  cor- 
poration.   See  note  23  L.  R.  A.  490. 

Who  is  managing  agent  of  foreign  corporation 
for  purposes  of  service  of  process.  See  note  4 
L.  R.  A.   (N.  S.)   460. 

Service  of  process  upon  foreign  corporation  not 
doing  business  in  state  as  basis  of  judgment  in 
personam.    See  note  8  L.  R.  A.   (N.  S.)   538. 

Right  to  serve  process  in  action  against  corpo- 
ration upon  non-resident  officer  who  is  within 
state  as  party  or  witness.  See  note  24  L.  R.  A. 
(N.   S.)    276. 

CODE  COMMISSIONERS'  NOTE.  1.  Service 
of  summons  on  officers  of  corporation.  Service 
must  be  on  one  of  the  officer.s  mentioned  in  sub- 
division 1  of  this  section.  Aiken  v.  Quartz  Rock 
Mariposa  Mining  Co.,  6  Cal.  186;  and  a  return  is 
sufficient  which  states  that  service  was  made  on 


305  SERVICE   BY    PUBLICATION — CERTIFICATE  OP  RESIDENCE.  §  412 

J.    S.,    one    of    the    "proprietors"    of    a    company;  tions,  5  637;   1    Tidd's  Prarticp,  p.  116;   McQueen 

it  must  state  that  such  person  was  either  "presi-  v.  Mifl'llctnwn  MimufacturiiiK  Co.,  16  Johns.  C. 
(lent  or  head   of  the  corporation,   secretary,   cash-  4.   Infant    under    fourteen    years    of    age,    how 

ier,     or     managing     agent     thereof."      O'Brien     v.  served.      Wlien   llie   suit   is  against   a  minor  under 

Shaw's   Flat  etc.   Canal   Co.,    10   Cal.   343;    Adams  tlie    ago    of    fourteen,    service    is    to    be    made    by 

V.  Town,   3   Cal.  247.  delivering   a   copy    of    summons    and    complaint    to 

2.  Service  of  summons  on  officers  of  corpora-  him  personally,  and.  also,  to  his  father,  mother, 
tlon.  Where  tlu^  return  of  the  sherilT  slatiMl  that  or  guardian,  etc.;  and  in  cases  where  such  in- 
service  was  made  "on  A  and  B,  the  presid  Mif  fant  resides  out  of  the  state,  and  his  residence 
and  secretary  of  the  corporation,"  it  was  lii>ld  is  known  to  plaintiff,  a  copy  of  the  summons 
that  it  was  primary  evidence  that  the  persons  should  be  deposited  in  the  post-office,  directed 
named  were  such  ofTicers,  and  that  the  return  was  to  the  infant,  in  the  same  manner  as  if  he  were 
not  erroneous  on  account  of  its  form.  Rowe  v.  over  fourteen.  Gray  v.  Palmer,  9  Cal.  638. 
Table  Mountain  Water  Co.,  10  Cal.  441;  Wilson  5.  What  constitutes  personal  service.  The 
V.   Spring  Hill  Quartz-Mining  Co.,   10   Cal.  44r>.  personal    service    of    writs    and    process    can    only 

3.  Service  on  officers  of  corporation.  Man-  be  made  by  delivering  a  copy  to  the  party  upon 
aging  agent,  defined.  In  a  case  where  the  corpora-  whom  the  service  is  required.  So  far  as  sum- 
tion  was  a  banking  firm,  it  was  lield  that  service  mons  is  concerned,  the  statute  designates  the 
on  the  "teller"  of  the  bank  was  not  sufficient.  mode  (§  411).  Independently  of  the  statute,  the 
It  must  be  strictly  on  the  preside;it,  or  other  mode  would  be  by  showing  the  original  under 
head  of  the  corporation,  secretary,  cashier,  or  the  seal  of  the  court,  and  delivering  a  copy, 
managing    agent.     Kennedy    v.    Hibernia  Sav.  &  L.  Edmondson  v.  Mason,  16  Cal.  3SS. 

Soc,  38  Cal.  154.  If  service  is  made  on  an  6.  Service  of  summons.  Ecdelivery  and  ser- 
agent  of  a  corporation,  it  must  be  on  the  man-  vice  after  retvirn.  After  a  summons  has  been 
aging  agent,  and  not  on  one  of  its  general  business  served  on  some  of  the  defendants  and  returned, 
agents.  See  Kennedy  v.  Hibernia  Sav.  &  L.  the  court  may  order  that  it  should  be  redeliv- 
Soc,  38  Cal.  154.  At  common  law,  service  was  ered  to  plaintiff  for  further  service  on  other  de- 
required  on  the  president  or  principal  officer  of  fendants,  either  in  the  same  or  another  county. 
the    corporation.     Angell    and    Ames    on    Corpora-  Hancock  v.  Preuss,  40  Cal.  572. 

§  412.  Cases  in  which  service  of  summons  may  be  by  publication.  Cer- 
tificate of  residence.  "Where  the  person  on  wiiom  service  is  to  be  made 
resides  out  of  the  state;  or  has  departed  from  the  state;  or  cannot,  after  due 
diligence,  be  found  wuthin  the  state ;  or  conceals  himself  to  avoid  the  service 
of  summons;  or  is  a  corporation  having  no  managing  or  business  agent, 
cashier  or  secretary,  or  other  officer  upon  whom  summons  may  be  served, 
who,  after  due  diligence  cannot  be  found  within  the  state,  and  the  fact  ap- 
pears by  affidavit  to  the  satisfaction  of  the  court,  or  a  judge  thereof;  and  it 
also  appears  by  such  affidavit,  or  by  the  verified  complaint  on  file,  that  a 
cause  of  action  exists  against  the  defendant  in  respect  to  whom  the  service 
is  to  be  made,  or  that  he  is  a  necessary  or  proper  party  to  the  action ;  or  when 
it  appears  by  such,  affidavit,  or  by  the  complaint  on  file  [t]  herein,  that  it 
is  an  action  which  relates  to  or  the  subject  of  which  is  real  or  personal  prop- 
erty in  this  state,  in  which  such  person  defendant  or  corporation  defendant 
has  or  claims  a  lien  or  interest,  actual  or  contingent,  therein,  or  in  which  the 
relief  demanded  consists  wholly  or  in  part  in  excluding  such  person  or  cor- 
poration from  any  interest  therein,  such  court  or  judge  may  make  an  order 
that  the  service  be  made  by  the  publication  of  the  summons ;  provided,  that 
where  service  is  sought  to  be  made  upon  a  person  who  cannot,  after  due 
diligence,  be  found  within  the  state  it  must  first  appear  to  the  court  by  the 
affidavit  aforesaid  that  there  has  not  been  filed,  on  behalf  of  such  person,  in 
the  county  where  such  action  is  pending,  the  certificate  of  residence  provided 
for  by  section  one  thousand  one  hundred  and  sixty-three  of  the  Civil  Code 
in  the  county  in  which  the  action  is  brought ;  or  that  said  certificate  was  so 
filed  and  that  the  defendant  cannot  be  found  at  the  place  named  in  said  cer- 
tificate, which  latter  fact  must  be  made  to  appear  by  the  certificate  of  the 
sheriff  of  the  county  wherein  said  defendant  claims  residence  in  and  by  said 
certificate  of  residence,  and  which  certificate  of  said  sheriff  must  show  that 
service  of  said  summons  was  attempted  upon  said  defendant  at  the  place 
named  in  said  certificate  of  residence  but  that  said  defendant  was  not  to  be 
found  thereat. 

Summons.  2.   Service  of,  in  justice's  court,  by  publica- 

1.   Publication    of,    In    suit    to    quiet    title,  tlon.     See  post,  §  849. 

when  authorized.      See  post,    §§  749,    750. 
1  Fair.— 20 


§412 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


306 


Legislation  §  412.  1.  Knacted  March  11,  1873; 
based  on  Practice  Act,  §  30  (New  York  Code, 
§135);  and  the  section  then  read:  "Where  the 
person  on  whom  the  service  is  to  be  made  re- 
sides out  of  the  state,  or  has  departed  from  the 
state,  or  cannot,  after  due  diligence,  be  found 
within  the  state,  or  conceals  himself  to  avoid  the 
service  of  summons,  or  is  a  foreign  corporation 
having  no  managing  or  business  agent,  cashier,  or 
secretary  within  the  state,  and  the  fact  appears 
by  affidavit  to  the  satisfaction  of  the  court,  or 
a  judge  thereof,  or  a  county  judge,  and  it  also 
appears  by  such  affidavit,  or  by  the  verified 
complaint  on  file,  that  a  cause  of  action  exists 
against  the  defendant  in  respect  to  whom  the 
service  is  to  be  made,  or  that  he  is  a  necessary 
or  proper  party  to  the  action,  such  court  or 
judge  may  make  an  order  that  the  service  be 
made  by  the  publication  of  the  summons."  When 
enacted  in  1872,  (1)  the  phrase  was  added,  "or 
is  a  foreign  corporation  having  no  managing  or 
business  agent,  cashier,  or  secretary  within  the 
state";  (2)  "also  appears  by  such  affidavit,  or 
by  the  verified  complaint  on  file,"  was  substi- 
tuted for  "shall  in  like  manner  appear" ;  and 
the  words  "judge  may  make"  were  substituted 
for  "judge  may  grant." 

2.  Amended  by  Code  Amdts.  1880,  _p.  13, 
striking  out  the  words  "or  a  county  judge." 

3.  Amended  by  Stats.  1893,  p.  285,  adding, 
before  "such  court  or  judge,"  and  after  "party 
to  the  action,"  near  the  end  of  the  section,  "or 
when  it  appears  by  such  affidavit,  or  by  the 
complaint  on  file  [tjherein,  that  it  is  an  action 
which  relates  to  or  the  subject  of  which  is  real 
or  personal  property  in  this  state,  in  which  such 
person  defendant,  or  foreign  corporation  defend- 
ant has  or  claims  a  lien  or  interest,  actual  or 
contingent,  therein,  or  in  which  the  relief  de- 
manded consists  wholly  or  in  part  in  excluding 
such  person  or  foreign  corporation  from  any  in- 
terest therein." 

4.  Amendment  by  Stats.  1901,  p.  130;  un- 
constitutional.     See  note  ante,  §  5. 

5.  Amended  by  Stats.  1905,  p.  141,  (1)  sub- 
stituting semicolons  for  commas,  in  the  first  part 
of  the  section,  before  the  phrases  beginning  "or 
has  departed,"  "or  cannot,"  "or  conceals  him- 
self," "or  is  a  foreign  corporation";  (2)  adding 
the  proviso. 

6.  Amended  by  Stats.  1913,  p.  69  (approved 
April  23,  1913),  (1)  after  the  words  "or  secre- 
tary within  the  state,"  adding  "or  is  a  domestic 
corporation  the  officers  and  agents  of  which, 
upon  whom,  under  the  law,  service  may  be  made 
binding  upon  the  corporation,  cannot  after  due 
diligence,  be  found  within  the  state";  (2)  sub- 
stituting a  semicolon  for  a  comma  before  "pro- 
vided," and  adding  a  comma  after  that  word. 

7.  Amended  by  Stats.  1913,  p.  1422  (ap- 
proved May  20,  1913),  (1)  striking  out  the  word 
"foreign"  before  "corporation"  in  the  three  in- 
stances; (2)  recasting  the  amendment  of  April 
23d,   noted  supra. 

Service  by  publication.  This  section  is 
general,  and  in  terms  applies  to  all  ac- 
tions; it  is  not  invalid  because  it  includes 
proceedings  purely  in  personam  as  well  as 
proceedings  in  rem.  Perkins  v.  Wakehara, 
86  Cal.  580;  21  Am.  St.  Eep.  67;  25  Pac.  51. 
Service  of  summons  by  publication  is  set 
on  foot  by  an  affidavit  showing  the  exist- 
ence of  the  statutory  facts.  Hahn  v. 
Kelly,  34  Cal.  391;  91  Am.  Dec.  742.  The 
facts  may  appear  either  by  affidavit  or 
verified  comj)laint,  or  by  both  (Ligare  v. 
California  Southern  R.  R.  Co.,  76  Cal.  610; 
18  Pac.  777) ;  but  where  the  complaint  is 
unverified,  the  affidavit  must  state  facts 
showing  that  a  cause  of  action  exists 
against  the  defendant.  Yolo  County  v. 
Knight,  70  Cal.  430;  11  Pac.  6G2.  All  of 
the  required  facts  must  appear;  the  exist- 
ence of  one  condition  is  not  enough  (Braly 
V.  Seaman,  30  Cal.   610);   but  where  the 


affidavit  is  sufficient  in  form,  the  court 
must  accept  the  statements  as  true,  and 
make  the  order  as  demanded.  Dunlap  v. 
Steere,  92  Cal.  344;  27  Am.  St.  Rep.  143; 
16  L.  E.  A.  361;  28  Pac.  563.  The  exist- 
ence of  a  cause  of  action  against  the  de- 
fendant is  a  jurisdictional  fact.  Columbia 
Screw  Co.  v.  Warner  Lock  Co.,  138  Cal. 
445;  71  Pac.  498;  Estate  of  McNeil,  155 
Cal.  333;  100  Pac.  1086. 

Where  defendant  conceals  himself. 
Where  the  defendant  conceals  himself  to 
avoid  service,  he  cannot  complain  of  want 
of  personal  service  (Ware  v.  Robinson,  9 
Cal.  107);  nor,  where  the  facts  of  conceal- 
ment and  residence  appear  to  exist,  has 
he  the  right  to  question  the  truth  of  the 
allegations  after  the  expiration  of  six 
months;  he  is  deemed  to  be  in  court,  un- 
der such  circumstances,  and  must  be  held 
to  know  the  allegations  of  the  complaint, 
and  to  admit  them  to  be  true  (Ware  v. 
Robinson,  9  Cal.  107;  Jordan  v.  Giblin,  12 
Cal.  100) ;  and  where  the  affidavit  shows 
that  he  resides  within  the  state,  but  has 
disappeared,  and  cannot  be  found  therein, 
and  it  appears  that  he  is  concealing  him- 
self to  avoid  service,  an  order  of  publica- 
tion is  properly  made.  Bradford  v.  Mc- 
Avoy,  99  Cal.  324;  33  Pac.  1091.  Proof 
that  the  defendant  secreted  himself  to 
avoid  service  may  be  made,  to  avoid  a  dis- 
missal under  §  581a;  but,  where  the  evi- 
dence is  conflicting,  a  finding  that  he  did 
so  secrete  himself  is  conclusive  upon  ap- 
peal. Wilson  V.  Leo,  19  Cal.  App.  793;  127 
Pac.  1043.  The  return  of  the  officer  is 
sufficient  evidence  of  due  diligence;  and 
where  the  affidavit  shows  that  the  defend- 
ant resides  in  the  township  or  county,  and 
sets  out  the  facts  respecting  his  absenting 
himself  from  his  home,  there  is  a  sufficient 
showing  to  justify  an  order  of  publication. 
Seaver   v.   Fitzgerald,  23   Cal.   85. 

Where  the  defendant  is  absent  or  is  a  non- 
resident. Where  the  affidavit  shows  that 
the  plaintiff  has  a  cause  of  action  against 
the  defendant,  and  refers  to  his  verified 
complaint  containing  a  like  showing,  and 
that  the  defendant  is  a  non-resident  of  the 
state,  it  is  sufficient  to  warrant  an  order 
of  service  of  summons  by  publication. 
Anderson  v.  Goff,  72  Cal.  65;  1  Am.  St. 
Rep.  34;  13  Pac.  73.  Where  the  affidavit 
shows  that  the  person  upon  whom  service 
is  to  be  made  resides  out  of  the  state,  it 
is  not  necessary  to  set  forth  that  such 
person  cannot,  after  due  diligence,  be 
found  within  the  state.  Parsons  v.  Weis, 
144  Cal.  410;  77  Pac.  1007.  While  the  pro- 
visions of  this  section  for  service  upon  non- 
residents by  publication  are  general,  and  in 
terms  apply  to  all  actions,  yet  the  section 
is  not  invalid  because  it  includes  proceed- 
ings purely  in  personam.  Perkins  v.  Wako- 
ham,  86  Cal.  580;  21  Am.  St.  Rep.  67;  25 
Pac.  51.  A  corporation  is  deemed  to  have 
departed  from  the  state  when  all  its  agents 
and    oflScers,    upon    whom    service   can   be 


307 


SERVICE   BY   PUBLICATION — ORDER — AFFIDAVIT,    AND    CONTENTS.  §  412 


mafle,  have  departed  therefrom.  McKen- 
-drick  V.  Western  Ziuc  Mining  Co.,  16.5  Cal. 
24;  130  Pac.  865. 

Actions  relating  to  real  estate.  An  ac- 
tion for  the  s[»ei-ific  perforinaiice  of  a  con- 
tract for  the  oonve3'ance  of  real  estate  is 
an  action  for  the  determination  of  a  riglit 
or  interest  in  real  property.  Tutt  v.  Davis, 
13  Cal.  App.  715;  110  Pac.  690.  Service 
of  process,  in  an  action  for  the  specific  per- 
formance of  a  contract  for  the  sale  of 
real  property,  may  be  made  by  publication. 
Tutt  V.  Davis,  13  Cal.  App.  715;  110  Pac. 
690.  In  an  attachment  suit  against  a 
wife's  separate  estate,  jurisdiction  of  her 
husband,  as  a  co-defendant,  may  be  ob- 
tained by  publication  of  summons  against 
him,  where  he  cannot  be  personally  served. 
Bank  of  Venice  v.  Hutchinson,  19  Cal. 
App.  219;  125  Pac.  252. 

Service  on  foreign  corporation.  Where 
a  foreign  corporation  defendant  has  no 
agent  in  this  state,  service  may  be  made 
upon  the  secretary  of  state.  Olender  v. 
Crvstalline  Mining  Co.,  149  Cal.  482;  86 
Pac.  1082. 

Service  under  McEnerney  Act.  The 
method  of  giving  notice  prescribed  in  this 
section  is  valid.  Title  etc.  Restoration  Co. 
V.  Kerrigan,  150  Cal.  289;  119  Am.  St.  Rep. 
199;  88  Pac.  356;  8  L.  R.  A.  (N.  S.)  682. 

Service  under  Torrens  Act.  Service  of 
notice,  under  the  Torrens  Act,  must  be  per- 
sonal, except  where,  under  this  section  and 
§  413,  post,  service  may  be  made  by  pub- 
lication. Robinson  v.  Kerrigan,  151  Cal. 
40;  121  Am.  St.  Rep.  90;  12  Ann.  Cas.  829; 
90  Pac.  129. 

Order  for  publication.  An  order  for  the 
publication  of  summons  will  be  upheld, 
where  the  necessary  facts  are  set  forth  in 
the  affidavit.  Rue  v.  Quinu,  137  Cal.  651; 
66  Pac.  216;  70  Pac.  732;  Merchants'  Nat. 
Union  v.  Buisseret,  15  Cal.  App.  444;  115 
Pac.  58;  Emery  v.  Kipp,  1.54  Cal.  83;  129 
Am.  St.  Rep.  141;  19  L.  R.  A.  (N.  S.)  983; 
97  Pac.  17;  Roberts  v.  Jacob,  154  Cal.  307; 
97  Pac.  671;  223  U.  S.  261;  56  L.  Ed.  429; 
32  Sup.  Ct.  Rep.  303.  Otherwise,  the  trial 
judge  does  not  abuse  his  discretion  in  re- 
fusing to  make  such  order.  Bender  v.  Hut- 
ton,  160  Cal.  372;  117  Pac.  322. 

Service  in  divorce  cases.  A  provision 
for  alimony,  in  a  decree  of  divorce,  ob- 
tained against  a  husband  in  another  state, 
upon  substituted  service  of  summons,  is 
void  for  want  of  jurisdiction  of  the  hus- 
band. In  re  McMullin,  164  Cal.  504;  129 
Pac.  773;  Application  of  McMullen,  19 
Cal.  App.  481;  126  Pac.  368. 

Necessity  of  affidavit.  Where  the  facts 
in  the  affidavit  are  sufficient  to  justify  a 
finding,  that  the  defendant  cannot,  after 
due  diligence,  be  found  within  the  state, 
an  order  of  service  by  publication  is 
proper.  Merchants'  Nat.  Union  v.  Buis- 
seret, 15  Cal.  App.  444;  115  Pac.  58.  An 
affidavit  for  the  publication  of  summons, 
in  an  action  in  which  the  complaint  is  not 


verified,  must  state  probative  facts  upon 
which  the  court  can  ultimately  conclude 
that  a  cause  of  action  against  defendant 
exists  and  that  he  is  a  necessary  and 
proi)er  ])arty.  People  v.  Mulcahy,  159  Cal. 
34;  112  Pac.  853.  This  section  is  not 
effective,  unless  strictly  ]iursued.  Ricket- 
son  V.  Richardson,  26  Cal.  149.  A  judg- 
ment by  default,  based  on  insufficient  ser- 
vice by  j>ublication,  will  be  set  aside  on 
motion.  Wilson  v.  Leo,  19  Cal.  App.  793; 
127  Pac.  1043.  A  money  judgment  can- 
not be  rendered  against  a  non-resident 
upon  service  by  publication,  where  there 
is  no  showing  of  jurisdiction  of  the  court 
over  property  of  such  non-resident  within 
the  state.  Merchants'  Nat.  Union  v.  Buis- 
seret, 15  Cal.  App.  444;  115  Pac.  58.  The 
rendition  of  a  judgment  upon  service  by 
publication,  where  the  affidavit  is  suffi- 
cient, is  not  a  violation  of  any  constitu- 
tional guaranty  of  due  process  of  law. 
Roberts  v.  Jacob,  154  Cal.  307;  97  Pac. 
671;  223  U.  S.  261;  56  L.  Ed.  429;  32  Sup. 
Ct.  Rep.  303.  Where  the  affidavit  is  insuffi- 
cient, an  order  for  service  by  publication, 
inadvertently  and  improj^erly  made,  is 
properly  quashed.  Wilson  v.  Leo,  19  Cal. 
App.  793;  127  Pac.  1043.  There  is  no  pro- 
vision, in  terms,  in  this  section,  that  the 
date  of  the  affidavit  shall  be  disclosed 
therein,  but  it  is  indicated  clearly  that  the 
affidavit  must  be  presented  and  verified  at 
the  time  of  the  application  for  the  order. 
Bank  of  Venice  v.  Hutchinson,  19  Cal. 
App.  219;  125  Pac.  252.  The  plaintiff,  to 
avail  himself  of  constructive  service  of 
summons,  must  in  fact  have  exercised  due 
diligence:  a  mere  formal  compliance  with 
the  i^rovisions  of  the  statute,  or  a  state- 
ment to  that  effect  in  his  affidavit,  will 
not  suffice.  Stern  v.  .ludson,  163  Cal.  726; 
127  Pac.  38.  The  affidavit  must  be  filed 
before  trial,  and  the  order  of  publication 
may  be  made  only  upon  a  sufficient  affi- 
davit, otherwise  the  court  has  no  juris- 
diction; but,  where  the  order  is  not  void, 
the  court  cannot  set  it  aside,  except  upon 
notice.  Zumbusch  v.  Superior  Court,  21 
Cal.  App.  76;  130  Pac.  1070. 

Contents  of  affidavit.  An  affidavit 
which  fails  to  show  whether  the  residence 
of  the  defendant  was  known  to  the  plain- 
tiff, or  that  he  did  not  know  where  he 
might  be  found,  is  insufficient.  Braly  v. 
Seaman,  30  Cal.  610.  The  facts  set  forth 
in  the  affidavit  must  show  that  due  dili- 
gence was  used  to  find  the  defendant 
within  the  state,  and  that  he  could  not  be 
found.  Rue  v.  Quinn,  137  Cal.  651;  66  Pac. 
216;  70  Pac.  732;  Merchants'  Nat.  Union 
v.  Buisseret,  15  Cal.  App.  444;  115  Pac.  58. 
The  affidavit  must  show  with  accuracy  the 
efforts  made  to  serve  the  defendant  (Kahn 
v.  Matthai,  115  Cal.  689;  47  Pac.  698);  and 
such  an  inquiry  should  be  shown  as  that 
the  court  may  say  that  due  diligence  has 
been  exercised  (Roberts  v.  Jacob,  154  Cal. 
307;    97   Pac.   671;   Jacob   v.    Roberts,   223 


412 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


30& 


U.  S.  261;  56  L.  Ed.  429;  32  Sup.  Ct.  Rep. 
303);  but  where  the  exercise  of  diligence 
was  merely  an  inquiry  of  one  friend  of  the 
defendant!^  as  to  his  whereabouts,  the 
showing  is  insufficient.  Swain  v.  Chase,  12 
Cal.  283.  Where  the  defendant  is  alleged 
to  be  a  non-resident,  the  affidavit  need  not 
show  diligence.  Anderson  v.  Goff,  72  Cal. 
65;  1  Ani.  St.  Rep.  34;  13  Pac.  73;  Parsons 
V.  Weis,  144  Cal.  410;  77  Pac.  1007;  John- 
son V.  Miner,  144  Cal.  785;  78  Pac.  240. 
A  showing  that  the  defendant  resides  out 
of  the  state  is  sufficient.  Furnish  v.  Mul- 
lan,  76  Cal.  646;  18  Pac.  854.  Where  the 
affidavit  gives  in  detail  the  facts  showing 
the  attempts  to  serve  the  defendant  in 
several  counties  specified,  the  court  is  au- 
thorized to  infer  diligence  therefrom. 
Ligare  v.  California  Southern  R.  R.  Co., 
76  Cal.  610;  18  Pac.  777;  Chapman  v. 
Moore,  151  Cal.  509,  513;  121  Am.  St.  Rep. 
130;  91  Pac.  324.  It  is  not  required  by 
this  section  that  the  affidavit  shall  state 
that  the  residence  of  the  defendant  is  not 
known  to  the  affiant  (Ligare  v.  California 
Southern  R.  R.  Co.,  76  Cal.  610;  18  Pac. 
777);  but  an  affidavit  in  the  language  of 
the  statute  is  not  sufficient.  Ricketson  v. 
Richardson,  26  Cal.  149.  Unless  the  affi- 
davit contains  some  evidence  tending  to 
establish  every  material  jurisdictional 
fact,  the  judge  has  no  legal  authority  to 
make  the  order.  Forbes  v.  Hyde,  31  Cal. 
342.  The  affidavit  should  be  prepared 
with  reference  to  the  condition  of  things 
as  they  exist  at  the  time  the  order  for 
publication  is  made.  Forbes  v.  Hyde,  31 
Cal.  342;  Cohn  v.  Kember,  47  Cal.  144.  In 
a  proceeding  based  upon  constructive  ser- 
vice, the  conditions  of  the  statute  m.ust  be 
strictly  pursued.  Cohn  v.  Kember,  47  Cal. 
144.  It  is  not  required  that  it  shall  ap- 
pear that  a  writ  of  attachment  has  been 
levied  as  a  preliminary  step  to  the  order 
of  publication;  the  court  may  not  require 
anything  in  addition  to  the  requirements 
of  the  code.  Johnson  v.  Miner,  144  Cal. 
785;  78  Pac.  240.  To  authorize  service  by 
publication,  it  must  appear  that  a  cause 
of  action  exists  against  the  defendant. 
Estate  of  McNeil,  155  Cal.  333;  100  Pac. 
1086.  Facts  sufficient  to  constitute  a 
cause  of  action  must  be  shown,  either  by 
the  complaint  or  the  affidavit.  Braly  v. 
Seaman,  30  Cal.  610;  Yolo  County  v. 
Knight,  70  Cal.  430;  11  Pac.  662;  Colum- 
bia Screw  Co.  v.  Warner  Lock  Co.,  118 
Cal.  445;  71  Pac.  498.  Where  no  affidavit 
is  filed,  the  complaint  must  be  verified. 
People  V.  Mulcahy,  159  Cal.  34;  112  Pac. 
853.  Where  the  complaint  is  not  verified, 
an  affi'iavit,  made  by  the  attorney,  in  or- 
der to  show  the  existence  of  a  cause  of 
action,  must  state  that  the  facts  are  within 
his  knowledge.  Columbia  Screw  Co.  v. 
Warner  Lock  Co.,  138  Cal.  445;  71  Pac. 
498.  Where  the  plaintiff  is  absent  from 
the  county,  his  attorney  may  make  the 
affidavit,   if   the  facts  are   known   to  him, 


and  it  may  be  made  upon  information  and 
belief.  Rue  v.  Quinn,  137  Cal.  651;  66 
Pac.  216;  70  Pac.  732.  An  affidavit,  by 
the  attorney  for  the  plaintiff,  on  informa- 
tion and  belief,  that  the  defendant  is  in, 
fact  within  the  state,  and  conceals  him- 
self to  avoid  service  of  summons,  is  only 
prima  facie  evidence  of  these  facts;  if 
untrue  in  point  of  fact,  the  defendant 
may,  at  any  time,  institute  suit  to  set 
aside  the  judgment,  on  the  ground  of 
fraud.  Ware  v.  Robinson,  9  Cal.  107.  The 
ultimate  facts  of  the  statute  are  to  be 
found  from  the  probative  facts  in  the  affi- 
davit. Ricketson  v.  Richardson,  26  Cal. 
149;  Braly  v.  Seaman,  30  Cal.  610;  Forbes 
V.  Ilvde,  31  Cal.  342;  Yolo  County  v. 
Knight,  70  Cal.  430;  11  Pac.  662.  Where 
the  affidavit  is  false,  the  judgment  by  de- 
fault is  properly  vacated.  Dunlap  v. 
Steere,  92  Cal.  344;  27  Am.  St.  Rep.  143; 
16  L.  R.  A.  361;  28  Pac.  563;  Fealev  v. 
Fealey,  104  Cal.  354;  43  Am.  St.  Rep.  Ill; 
38  Pac.  49;  Sullivan  v.  Lumsden,  118  Cal. 
664;  50  Pac.  777;  Par.sons  v.  Weis,  144  Cal. 
410;  77  Pac.  1007.  The  judgment  of  the 
superior  court  imports  absolute  verity; 
and  defects  in  or  the  insufficiency  of  the 
affidavits  and  order  showing  service  by 
publication  cannot  be  considered  in  a  col- 
lateral attack  upon  a  judgment  which  re- 
cites the  service  of  summons  by  publica- 
tion. McCauley  v.  Fulton,  44  Cal.  355. 
The  primary  object  and  purpose  of  the 
signature  of  the  officer  to  the  jurat  is  to 
witness  the  signature  of  the  affiant.  Bank 
of  Venice  v.  Hutchinson,  19  Cal.  App.  219; 
125  Pac.  252.  An  obvious  mistake  appear- 
ing in  the  jurat  does  not  vitiate  either  the 
affidavit  or  the  order.  Bank  of  Venice  v. 
Hutchinson,  19  Cal.  App.  219;  125  Pac.  252. 
Where  the  date  is  omitted  in  the  jurat,  it 
will  be  presumed  that  the  affidavit  was 
made  at  the  time  of  presentation,  nothing 
to  the  contrary  appearing.  Banlc  of  Venice 
v.  Hutchinson,  19  Cal.  App.  219;  125  Pac. 
252. 

Affidavit  and  order  not  part  of  judgment 
roll.  People  v.  Thomas,  101  Cal.  571;  36 
Pac.  9. 

Sufficiency  of  affidavit.  Roberts  v.  Jacob, 
154  Cal.  307;  97  Pac.  671. 

Showing  of  diligence  necessary.  Chap- 
man v.  Moore,  151  Cal.  509;  121  Am.  St. 
Rep.  130;  91  Pac.  324. 

Constructive  or  substituted  service  on  resident 
in  action  in  personam  as  due  process  of  law.  See 
note  35  L.  R.  A.    (N.  S.)    292. 

CODE  COMMISSIONERS'  NOTE.  1.  Applica- 
ble to  corporations.  This  section  would  have  been 
applicable  to  corporations  without  specially  men- 
tioning them,  the  word  "person"  covering  artifi- 
cial as  well  as  natural  persons.  See  Douglass  v. 
Pacific  Mail   S.   S.   Co.,  4  Cal.  304. 

2.  Section  to  be  strictly  pursued.  It  has  been 
held  that  the  sections  providing  for  the  service 
of  summons  on  a  defendant  by  publication,  were 
in  derogation  of  the  common  law,  and  must  be 
strictlv  pursued.  Ricketson  v.  Richardson,  26 
Cal.  i.52;  Jordan  v.  Giblin,  12  Cal.  102;  Braly 
V.  Seaman,  30  Cal.  617;  Forbe.s  v.  Hyde,  31 
Cal.  342;  People  v.  Huber,  20  Cal.  81;  McMinn 
v.  Whelan,  27  Cal.  309;  but  see  §  4,  ante,  and 
see  Hahn  v.   Kelly,    34  Cal.  391 ;  94  Am.  Dec.  742. 


309 


SERVICE   BY   PUBLICATION — ORDER — AFFIDAVIT,   AND    CONTENTS.  §  412 


3.  Requisites  of  affidavit  for  order  of  publi- 
-cation.  Sections  412  and  413  treat  of  the  same 
geiieial  suliject.  ami  they  must  be  read  toKetlier, 
ior  tlie  purpose  of  ascertahiiug  what  the  altida- 
vit  and  order  sliould  contain,  in  order  to  satisfy 
the  law  and  make  the  service  complete.  It  must 
appear  from  the  alhdavit  that  the  person  upon 
whom  service  is  to  be  made  either  resides  out 
of  the  state  or  has  departed  from  the  state,  or 
cannot,  after  due  diligence,  be  found  within  the 
-State;  or  that  he  conceals  himself  to  avoid  ser- 
vice, and  tliat  tlie  plnintiff  has  a  cause  of  action 
against  him;  or  that  he  has  a  cause  of  action, 
to  the  complete  determination  of  which  he  is  a 
necessary  or  proper  party;  and  also  whether  his 
residence  is  known,  and  if  known,  it  should  be 
stated.  An  affidavit  which  merely  repeats  the 
language  or  substance  of  the  statute  is  not  sutii- 
cient.  Unavoidably,  the  statute  cannot  go  into 
details,  but  is  compelled  to  content  itself  with 
a  statement  of  the  ultimate  facts,  which  must  be 
made  to  appear,  leaving  the  detail  to  be  sup- 
plied by  the  affidavit  from  the  facts  and  circum- 
stances of  the  particular  case.  Between  the  stat- 
ute and  the  atlidavit  there  is  fi  relation  which  is 
analogous  to  that  existing  between  a  pleading 
and  the  evidence  which  supports  it.  The  ulti- 
mate facts  of  the  statute  must  be  proved,  so  to 
speak,  by  the  affidavit,  by  showing  tha  probatory 
facts  upon  which  each  ultimate  fact  depends. 
These  ultimate  facts  are  conclusions  drawn  from 
the  existence  of  other  facts,  to  disclose  which  is 
the  special  office  of  the  affidavit.  To  illustrate: 
It  is  not  fcuflicient  to  state  generally,  that,  after' 
due  diligence,  the  deieudant  cannot  be  found 
■within  the  state,  or  that  the  plaintiff  has  a  good 
cause  of  action  against  him,  or  that  he  is  a 
necessary  party;  but  the  acts  constituting  due 
diligence,  or  the  facts  showing  that  he  is  a  neces- 
sary party,  should  be  stated.  To  hold  that  a 
bald  repetition  of  the  statute  is  sufficient,  is  to 
strip  the  court  or  judge  to  whom  the  application 
is  made  of  all  judicial  functions,  and  allow  the 
party  himself  to  determine,  in  his  own  way,  the 
existence  of  jurisdictional  facts, — a  practice  too 
dangerous  to  the  rights  of  defendants  to  admit 
•of  judicial  toleration.  The  ultimate  facts  stated 
in  the  statute  are  to  be  found,  so  to  speak,  by 
the  court  or  judge  from  the  probatory  facts 
stated  in  the  affidavit,  before  the  order  for  publi-; 
cation  can  be  legally  entered.  The  affidavit  must 
show  whether  the  residence  of  the  person  upon 
whom  service  is  sought  is  known  to  the  affiant, 
and  if  known,  the  residence  must  be  stated.  It 
is  true  that  this  is  not  required,  in  terms,  in 
§  412,  which  is  more  especially  devoted  to  the 
affidavit;  but,  as  we  have  already  said,  the  whole 
statute  upon  the  subject  of  service  by  publica- 
tion is  to  be  read  together,  and  §  41.3  requires 
that,  where  the  residence  is  known,  the  order 
shall  direct  a  copy  of  the  summons  and  com- 
plaint to  be  forthwith  deposited  in  the  post- 
office,  directed  to  the  person,  to  be  served  at  his 
place  of  residence.  In  granting  th^  order,  the 
court  or  judge  acts  judicially,  and  can  know 
nothing  about  the  facts  upon  which  the  order  is 
to  be  granted,  except  from  the  affidavit  presented 
by  the  applicant.  Ricketson  v.  Richardson,  26 
Cal.  152.  See  also  Brady  v.  Seaman,  30  Gal. 
617;   Jordan  v.  Giblin,  12  Cal.  100. 

4.  Affidavits  to  obtain  order  of  publication, 
■what  facts  must  be  stated  therein.  Section  412 
provides,  that  "When  the  person  on  whom  the 
service  is  to  be  made  resides  out  of  the  state, 
.  .  .  and  the  fact  shall  appear  by  affidavit  to 
the  satisfaction  of  the  court,  or  a  judge  thereof, 
.  .  .  such  court  or  judge  may  grant  an  order 
that  the  service  be  made  by  publication  of  sum- 
mons." The  fact  must  appear  by  affidavit,  be- 
fore jurisdiction  to  make  the  order  attaches. 
That  is  to  say,  there  must  be  an  affidavit  con- 
taining a  statement  of  some  fact  ^'hich  would 
Toe  legal  evidence,  having  some  appreciable  ten- 
dency to  make  the  jurisdictional  fact  appear,  for 
the  judge  to  act  upon,  before  he  has  any  juris- 
diction to  make  the  order.  Unless  the  affidavit 
contains  some  such  evidence,  tending  to  establish 
every  material  jurisdictional  fact,  the  judge  has 
no  legal  authority  to  be  satisfied,  and.  if  he 
makes  the  order,  he  acts  vrithnut  jurisdiction, 
and  all  proceedings  based  upon  it  are  void.  But 
lie  is  only  tn  be  satisfied  upon  some  evidence 
presented  in  the  form  prescribed  :  and  if  the  affi- 
davit presents  legal  evidence  which  has  an  ap- 
preciable tendency  to  prove  every  material  juris- 
dictional  fact,   and   the   mind   of  the   judge    is   too 


easily  satisfied,  this  is  but  error,  for  he  was 
authorized  to  weigh  the  testimony,  and  if  satis- 
fied, make  the  order.  It  is  therefore  not  void, 
but    erroneous.      Forbes  v.  Hyde,  31  Cal.  3.')0. 

5.  Affida-vit  must  sho^w  cause  of  action.  Tlie 
statute  provides  that  "When  the  person  on  whom 
the  service  is  to  be  made  resides  out  of  the 
state,  .  .  .  and  the  fact  shall  appear  by  affidavit, 
.  .  .  and  it  shall  in  like  manner  appear,  that  a 
cause  of  action  exists  against  the  defendant  in 
respect  to  whom  the  service  is  to  be  made,  or 
that  he  is  a  necessary  or  proper  party  to  the  ac- 
tion, such  court  or  judge  may  grant  an  order," 
etc.  The  existence  of  a  cause  of  action,  etc., 
then,  is  also  a  jurisdictional  fact  which  must  ap- 
pear "in  like  manner,"  that  is  to  say,  by  affida- 
vit. The  statute  as  clearly  makes  a  cause  of 
action,  as  non-residence,  a  jurisdictional  fact, 
and  we  can  no  more  disregard  the  one  than  the 
other.  If  this  fact  does  not  appear  by  the  affi- 
davit upon  which  the  order  for  publication  was 
founded,  then  there  was  a  want  of  jurisdiction, 
and  the  order  and  publication  are  void.  The 
only  statement  in  the  affidavit  is  the  following: 
"Deponent  further  says,  that  he  is  a  counselor 
at  law  and  resides  in  this  city,  and  that  he  has 
a  good  cause  of  action  in  this  suit  against  the 
said  defendant,  and  that  he  is  a  necessary  and 
proper  party  defendant  thereto,  as  he  verily  be- 
lieves." What  "fact  appears  by  affidavit"  here? 
Simply  that  the  affiant  believes  he  has  a  good 
cause  of  action  in  this  suit  against  defendant, 
and  believes  that  Harris  is  a  necessary  and 
proper  party  defendant.  But  such  an  averment 
is  neither  the  statement  of  an  ultimate  fact,  such 
as  is  required  to  be  stated  in  a  pleading,  nor  of 
a  probative  fact  from  which  such  ultimate  fact 
may  be  deduced,  nor  a  fact  of  any  sort  which  in 
any  way  legally  tends  to  prove  such  ultimate  or 
probative  fact,  or  from  which  it  may  be  inferred. 
It  is  not  the  statement  of  a  fact  at  all.  It  is 
merely  the  statement  of  the  opinion  of  the  wit- 
ness in  relation  to  a  point  upon  which  the  judge 
is  required  to  form  his  own  opinion  upon  facts 
which  must  appear  by  affidavit.  The  judge  may 
have  entire  confidence  in  the  ability  of  the  affi- 
ant as  a  lawyer,  and  in  his  opinion  upon  a  ques- 
tion of  law,  and  the  witness  may  be  equally  well 
qualified  to  determine  the  point;  but  the  law 
does  not  permit  him  to  act  upon  such  confidence 
or  qualifications.  Facts  are  the  proper,  and  only 
proper,  subjects  to  be  set  out  in  affidavits,  un- 
der the  provisions  of  the  statute,  to  serve  as  the 
basis  of  judicial  action.  The  affiant's  general 
expression  of  opinion  or  belief,  without  the  facts 
upon  which  it  is  founded,  is  in  no  sense  legal 
evidence,  and  does  not  tend,  in  any  degree,  to 
prove  the  jurisdictional  facts,  without  which  the 
judge  had  no  authority  to  make  the  order. 
Forbes  v.  Hyde.  31  Cal.  3.53.  Under  this  sec- 
tion of  the  code,  the  complaint,  if  verified,  may 
be   used   to   show   that   a   cause   of   action   exists. 

6.  Affidavit  that  defendant  was  concealing  him- 
self. Could  not  be  found  after  due  diligence, 
etc.  An  affidavit  of  an  attorney  for  the  plaintiflf, 
for  an  order  of  publication  of  summons  on  de- 
fendant, which  shows  that  diligent  search  had 
been  made  for  him  by  the  sheriff,  and  that  ho 
was  concealing  himself  to  avoid  service,  was  held 
to  be  sufficient.  Anderson  v.  Parker,  G  Cal.  201. 
Tlie  affidavit  states  that  the  defendant.  D.  C. 
Seaver,  was  at  the  time  a  resident  of  the  first 
township,  in  the  county  of  Contra  Costa;  that 
he  had  occupied  a  house  on  a  tract  of  land  claimed 
by  him  to  be  his  own  and  which  he  had  culti- 
vated up  to  the  commencement  of  the  suit,  and 
for  a  long  time  previous;  that  on  the  twenty- 
second  day  of  October,  the  day  before  the  com- 
mencement of  the  suit,  he  left  his  residence,  in- 
forming his  servants  that  he  would  be  back  that 
evening  or  the  next  day;  that  the  summons  in 
the  suit  was  put  in  the  hands  of  a  proper  con- 
stable, who  made  diligent  search  and  was  wholly 
unablfi  to  serve  it;  that  Seaver  had  not  returned 
to  his  residence,  and  that  he  believed  he  con- 
cealed himself  for  the  purpose  of  avoiding  the 
service  of  the  summons;  and  that  the  claim  sued 
on  is  a  just  debt.  The  return  of  the  summons 
by  the  constable  is,  "Not  found  in  the  county." 
The  return  of  the  officer,  that  the  party  could 
not  be  found,  is  sufficient  evidence  of  proper  dili- 
gence, and  the  affidavit  of  the  plaintiff  in  that 
action,  showing  that  the  defendant  resided  in 
the  township  and  county,  and  the  facts  respect- 
ing his  absenting  himself  from  his  home,  show 
sufficient   to    entitle    the   plaintiff   to    the    order   of 


§413 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


3ia 


publication.  Seaver  v.  Fitzgerald,  23  Cal.  90. 
An  affidavit  for  order  of  publication  of  sum- 
mons, stating  that  defendant  C.  could  not,  after 
due  diligence,  be  found  in  the  county;  that  in- 
quiry h;id  been  made  of  one  F.,  an  intimate 
friend  of  defendant,  as  to  his  whereabouts,  and 
F.  was  unable  to  give  the  information;  and  that 
plaintiff  did  not  know  where  defendant  could  be 
found  within  the  state, — was  held  to  be  insuffi- 
cient. The  affidavit  does  not  show  that  defend- 
ant had  left  the  state,  or  that  any  diligence  had 
been  used  to  ascertain  his  whereabouts,  beyond 
inquiry  of  a  single  individual,  and  no  pretense 
was  made  that  defendant  was  concealing  himself 
to  avoid  service.    Swain  v.  Chase,   12  Cal.   285. 

7.  Residence,  when  known,  to  be  stated.  Resi- 
dence, if  known,  should  be  stated  in  the  affidavit. 
Gray  v.  Palmer.  9  Cal.  637. 

8.  Afiidavit  made  a  long  time  before  order  of 
publicf.tiou.  Objection  was  mode  that  it  was  in- 
competent for  the  court  to  make  the  order  upon 
aindavits  some  four  months  old — it  is  plain,  to 
our  minds,  from  an  examination  of  §§412  and 
413  of  the  code,  that  the  affidavits  should  be  pre- 
pared with  reference  to  the  condition  of  things 
as  they  exist  at  the  time  when  the  order  for 
publication  is  applied  for — the  residence  of  the 
dei'endanf,  or  the  inability  to  find  him  ^t  that 
time.  The  proceedings  are  to  follow  each  other 
in  reasonably  quick  succession.  The  order  for 
publication,  when  made,  must  "direct  a  copy  of 
the  summons  and  complaint  to  be  forthwith  de- 
posited in  the  post-office,  directed  to  the  person 
to  be  served,  at  his  place  of  residence,"  when 
known.  It  must  not  only  be  deposited,  but  it 
must  be  done  forthwith.  The  object  of  the  stat- 
ute is,   if  possible,   to   secure   actual  notice   of   the 


pendency  of  the  action.  In  this  and  the  neigh- 
boring states  and  territories,  the  residences  of  a- 
large  portion  of  the  people  are  notoriously  'tem- 
porary. It  is  important,  therefore,  that  the  in- 
quiry as  to  residence  should  be  directed  to  the 
time  when  the  order  and  deposit  in  the  post- 
office  is  to  be  made;  and  we  have  no  doubt  that 
it  was  so  intended  by  the  legislature.  If  an  affi- 
davit can  be  used  as  the  basis  of  an  order  which 
was  made  four  months  before  the  order,  it  can 
be  used  when  made  four  years  before;  and  in 
both  cases  there  would  be  great  probability  that 
the  notice  contemplated  by  the  statute  woiild 
fail  of  reaching  the  defendant.  In  many  in- 
stances the  party  to  be  served  may  have  returned, 
and  could  be  easily,  if  inquiry  were  to  be  made 
at  a  later  period.  In  People  v.  Huber,  20  Cal.. 
82,  the  court  say:  "The  Practice  Act  contem- 
plates that  the  judge  must  be  satisfied,  by  affi- 
davit, of  the  absence  of  the  defendant  at  the 
time  when  he  is  applied  to  for  his  order,  and 
when  it  is  to  take  effect.  If  an  order  might  be 
procured  in  advance,  and  held  four  days  before 
taking  out  the  summons,  it  might  be  so  held  for 
a  much  longer  tin»e,  and  so  that  when  the  sum- 
mons actually  issues  the  defendant  may  have  re- 
turned to  the  state."  We  have  no  doubt  of  the 
correctness  of  this  view.  If  the  question  were 
presented  to  us  on  appeal  from  the  judgment,  we 
should  not  hesitate  to  reverse  it,  on  the  ground 
that  the  affidavits,  made  so  long  a  time  before 
obtaining  the  order  for  publication  based  on 
them,  would  be  totally  insufficient  to  show  a 
non-re.sidence,  or  absence  from  the  state,  or  that 
the  defendant  could  not,  after  due  diligence,  be 
found  within  the  state  at  the  time  of  procuring 
the  order.    Forbes  v.  Hyde,  31  Cal.  351. 


§  413.  Manner  of  publication.  The  order  must  direct  the  publication  to 
be  made  in  a  newspaper,  to  be  designated,  as  most  likely  to  give  notice  to 
the  person  to  be  served,  and  for  such  length  of  time  as  may  be  deemed  rea- 
sonable, at  least  once  a  week ;  but  publication  against  a  defendant  residing 
out  of  the  state,  or  absent  therefrom,  must  not  be  less  than  tw^o  months.  In 
case  of  publication,  where  the  residence  of  a  non-resident  or  absent  defend- 
ant is  known,  the  court  or  judge  must  direct  a  copy  of  the  summons  and 
complaint  to  be  fortlnvith  deposited  in  the  post-office,  directed  to  the  person 
to  be  served,  at  his  place  of  resideuce.  Yv^hen  publication  is  ordered,  per- 
sonal service  of  a  copy  of  the  summons  and  complaint  out  of  the  state  is 
equivalent  to  publication  and  deposit  in  the  post-office,  and  in  either  ease 
the  service  of  the  summons  is  complete  at  the  expiration  of  the  time  pre- 
scribed by  the  order  for  publication. 


Publication. 

1.  Proof  of.    Post,  §§  2010,  2011. 

2.  Of  summons,   in  suit  to  quiet  title,  man- 
ner  of.     See    post,  §§  749,    750. 

Judgment  by  default.     Post,  §  585,  subd.  3. 

Legislation  §  413.  1.  Enacted  March  11,  1872; 
identical  with  Practice  Act,  §  31  (New  York 
Code,  §  135),  as  amended  bv  Stats.  1871-72, 
p.  190. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  299, 
(1)  adding  the  word  ".".nd"  before  the  words 
"in  either  case,"  which,  in  the  original,  began 
a  sentence;  and  (2)  omitting  after  "order  for 
publication"  (the  end  of  the  present  section)  the 
sentence,  "In  actions  upon  contracts  for  the 
direct  payment  of  money,  the  court  in  its  dis- 
cretion may,  instead  of  ordering  publication,  or 
may  after  publication,  appoint  an  attorney  to 
appear  for  the  nonresident,  absent,  or  concealed 
defendant,  and  conduct  the  proceedings  on  his 
part." 

3.  Amendment  by  Stats.  1901,  p.  131;  un- 
constitutional.     See  note  ante,  §  5. 

Constructive  service.  The  power  of  the 
legislature  to  provide  for  constructive  ser- 
vice of  process  is  well  settled.  Eitel  v. 
Foote,  39  Cal.  439;  (r.-ill  v.  Poso  Irrigation 
Dist.,  87  Cal.  140;  26  Pac.  797. 


The  order  of  publication.  Where  the 
affidavit  is  sufficient  to  sustain  the  order, 
it  is  immaterial  that  the  ,iudge  had  other 
sources  of  information  (Ligare  v.  Califor- 
nia Southern  R.  E.  Co.,  76  Cal.  610;  18 
Pac.  777),  but  the  order  must  be  based 
solely  on  facts  stated.  Ricketson  v.  Rich- 
ardson, 26  Cal.  149.  The  provision  that 
the  order  must  direct  a  copy  to  be  depos- 
ited in  the  post-office,  where  the  residence 
of  a  non-resident  or  absent  resident  is 
known,  is  applicable  only  in  these  cases. 
Ligare  v.  California  Southern  R.  R.  Co.,. 
76  Cal.  610;  18  Pac.  777.  Where  the  affi- 
davit shows  that  the  residence  of  the  per- 
son to  be  served  is  known,  the  court  must 
also  direct  a  cojiy  of  the  complaint  to  be 
deposited  in  the  post-office,  directed  to 
him,  at  such  place  of  residence;  and  it 
must  appear  that  this  direction  has  been 
complied  with.  Parsons  v.  Weis,  144  Cal. 
410;  77  Pac.  1007.  The  deposit  of  sum- 
mons and  complaint  may  be  made  in  any 


311 


SERVICE  BY    PUBLICATION — EFFECT   OF — DEPOSIT    OF   COPY. 


§413 


post-office.  Mudge  v.  Steinhart,  78  Cal. 
34;.  12  Am.  St.  Kep.  17;  20  Pac.  147. 
Where  the  plaintiff  fails  to  procure  the 
service  within  the  time  fixed  for  its  re- 
turn, he  is  entitled  to  a  new  summons,  and 
a  continuance  of  the  case  until  he  can  pro- 
cure service,  by  publication  or  otherwise. 
Seaver  v.  Fitzgerald,  23  Cal.  83. 

Personal  service  out  of  the  state.  Per- 
sonal service  out  of  the  state  may  be 
made,  only  after  publication  has  been  or- 
dered. McBlain  v.  McBlain,  77  Cal.  507; 
20  Pac.  61.  To  be  effective,  this  section 
must  be  strictly  pursued.  Ricketson  v, 
Eichardson,  26  Cal.  149. 

Sufficiency  of  affidavit.  San  Diego  Sav, 
Bank  v.  Goodsell,  137  Cal.  420;  70  Pac. 
299. 

The  publication.  Publication  affects  only 
the  service  of  summons,  and  the  defendant 
has  forty  days  to  answer  after  the  lapse 
of  the  period  of  publication.  Grewell  v. 
Henderson,  5  Cal.  465;  Stearns  v.  Aguirre, 
6  Cal.  176.  A  publication  once  every 
week,  for  fourteen  weeks,  consecutively, 
answers  the  reciuirement  of  an  order  for 
publication  for  the  period  of  three  cal- 
endar months.  Savings  and  Loan  Society 
V.  Thompson,  32  Cal.  347;  Derby  &  Co.  v. 
Modesto,  104  Cal.  515;  38  Pac.  900.  Where, 
at  the  time  of  the  institution  of  the  suit, 
and  for  several  days  afterwards,  the  de- 
fendant was  a  resident  of  the  state,  but  at 
the  time  of  filing  the  affidavit  he  was 
beyond  its  limits,  a  publication  for  the 
period  of  thirty  days  was  insufficient, 
where  the  statute  required  three  months. 
Jordan  v.  Giblin,  12  Cal.  100.  A  publica- 
tion against  a  defendant  residing  out  of 
the  state,  or  absent  therefrom,  must  not 
be  less  than  two  months,  and  thirty  days 
must  elapse  after  that  time,  before  default" 
can  be  taken.  Foster  v.  Vehmeyer,  133 
Cal.  459;  65  Pac.  974.  Where,  pending 
publication,  an  order  is  made,  substituting 
attorneys,  the  publication  maj^  be  com- 
pleted as  commenced,  with  the  original  at- 
torney's name  indorsed  on  the  summons. 
Dunlap  v.  Steere,  92  Cal.  344;  27  Am.  St. 
Eep.  143;  16  L.  R.  A.  361;  28  Pac.  563. 
Publication  made  in  a  daily  paper,  regu- 
larly issued  on  Sundays,  does  not  vitiate 
the  service,  on  the  ground  that  Sunday  is 
dies  non.  Savings  and  Loan  Society  v. 
Thompson,  32  Cal.  347;  Derby  &  Co.  v. 
Modesto,  104  Cal.  515;  38  Pac.  900;  Smith 
V.  Hazard,  110  Cal.  145;  42  Pac.  465.  That 
the  paper  designated  is  the  one  most  likely 
to  give  notice  to  the  person  to  be  served, 
need  not  be  stated  in  the  order.  Seaver 
V.  Fitzgerald,  23  Cal.  85. 

Deposit  of  copy  in  post-office.  The  sum- 
mons must  not  only  be  deposited,  but  it 
must  also  be  done  "forthwith"  (Forbes  v. 
Hyde,  31  Cal.  342);  that  is,  as  soon  as, 
by  reasonable  exertion,  it  may  be,  which 
will  vary  according  to  the  circumstances 
of  each  particular  case;  like  the  term 
"immediately,"  "forthwith"  is  not,  in  law, 
necessarily  construed  as  the  time  immedi- 


ately succeeding,  without  an  interval,  but 
an  effectual  and  lawful  time,  allowing  all 
the  adjuncts  and  accom])lements  necessary 
to  give  an  act  to  be  performed  full  legal 
effect.  Anderson  v.  Ggff,  72  Cal.  65;  1  Am. 
St.  Rep.  34;  13  Pac.  73.  Where  the  de- 
posit of  a  copy  is  made  on  the  day  the 
order  is  signed,  the  omission  therefrom  of 
the  word  "forthwith,"  does  not  render  the 
proceedings  void,  where  the  jurisdictional 
facts  are  stated.  Anderson  v.  Goff,  72  Cal. 
65;   1  Am.  St.  Rep.  34;  13  Pac.  73. 

CODE  COMMISSIONERS'  NOTE.  1.  Addi- 
tional requirements  under  Statute  1871-72.  The 
legislature  of  1871-72  pa.ssed  the  folIowiriK  act  : 
Stats.  1871-72,  p.  392.  "An  Act  concerning  sc  r- 
vice  of  summons  upon  absent  defendants  by  pub- 
lication." Approved  March  15,  1872.  [Quoting 
the  act.] 

2.  Form  of  order  for  publication.  When  it 
may  be  issued,  and  what  facts  must  be  stated. 
An  order  to  publish  a  summons  cannot  be  niailo 
in  advance  of  tlie  issuance  of  the  summons.  If, 
after  complaint  filed,  and  before  any  summons  was 
issued,  the  judge  ordered  that  "summons  do  is- 
sue," and  that  it  be  published,  and  without  any 
further  order  summons  was  subsequently  issued 
and  published,  the  court  did  not  require  juris- 
diction, and  the  order  was  a  nullity.  A  judge 
cannot  order  a  summons  to  issue,  but  can  only 
order  a  summons  already  issued  to  be  served  in 
a  special  manner.     People  v.  Huber,  20  Cal.  81. 

3.  Publication  of  summons  on  supplemental 
complaint,  where  summons  was  published  on 
original  complaint.  If  an  order  is  made  for  pub- 
lication of  summons,  and  a  summons  is  issued, 
and  a  supplemental  complaint  was  afterwards 
filed  and  a  summons  issued  thereon,  the  original 
action  becomes  merged  in  the  action  as  supple- 
mented, and  tlie  court  will  not  acquire  jurisdic- 
tion of  the  person  of  absent  defendants  by 
publication  of  the  original  summons,  but  the- 
summons  issued  on  the  supplemental  complaint 
must  be  published  also.  McMinn  v.  Whelan,  2  7 
Cal.  300;  see  also  Forbes  v.  Hyde,  31  Cal.  342; 
People  V.  Huber,  20  Cal.  81;  see  also  Lawrence 
V.  Bolton,  3  Paige,  295;  Scudder  v.  Voorhis,  1 
Barb.  55. 

4.  Order  designating  newspaper  need  not  state 
what.  Tlie  order  of  publication  is  not  defective 
because  in  designating  the  newspaper  in  which  to 
publish  the  summons,  it  did  not  state  that  such 
paper  was  "most  likely  to  give  notice  to  the  per- 
son to  be  served,"  or  which  summons  was  to  be 
thus  published.  The  order  directs  the  summons 
to  be  published  in  a  certain  newspaper,  with  the 
time  it  was  to  be  thus  published,  and  the  pre- 
sumption is,  that  the  justice  designated  such 
particular  paper  because  it  was  most  likely  to 
give  notice  to  the  person  to  be  served,  but  it  was 
not  necessary  for  him  to  state  in  the  order  that 
such  was  his  reason.  Seaver  v.  Fitzgerald,  23 
Cal.  91. 

5.  Published  summons  must  agree  with  origi- 
nal summons.  The  summons  cannot  be  altered, 
and  no  new  matter  can  be  interpolated,  after  the 
order  for  its  pulilication  is  made.  It  must  be 
published  in  the  form  in  which  it  existed  when 
the  order  for  its  publication  was  made.  McMiun 
V.  Whelan,  27  Cal.  314.  But  if  a  comparison  of 
the  published  summons  w'ith  the  original  shows 
that  the  difference  between  the  two  are  purely 
literal,  and  the  sense  and  meaning  of  the  original 
and  of  the  published  version  of  the  summons  are 
identical,  that  is  enough.  Sharp  v.  Daugney,  33 
Cal.  513. 

6.  Constitutionality  of  section,  so  far  as  it  re- 
lates to  appointment  of  attorney,  etc.  It  has 
been  contended  tliat  this  section,  so  far  as  it 
allows  the  court  to  appoint  attorneys  for  defend- 
ants in  lieu  of  publication,  was  "unconstitutional 
and  against  the  principles  of  free  government," 
under  the  provision  in  the  constitution,  that  no 
person  shall  "be  deprived  of  life,  liberty,  or  prop- 
erty without  due  process  of  law."  But  the  con- 
Btitutionality  of  this  section  was  upheld  by  the 
court,   in  Ware  v.  Robinson,   9  Cal.   111. 

7.  When  the  court  may  appoint  attorney.  If 
the  defendant  is  rnncealed  for  the  purpose  of 
avoiding   service.      See   Ware   v.   Robinson.    9   Cal. 


§414 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


312 


107.  "Where  the  defendant  cannot,  after  due 
diligence,  be  found.  See  Jordan  v.  Giblin,  12  Cal. 
100  See  also,  as  to  judgment  against  detend- 
ants  iu  such  cases,  §  473,  post,  where,  within 
six  months  of  rendition  of  judgment,  the  court 
may  allow  defendant  to  answer  to  the  merits  of 
■original  action;  and  in  this  connection  see  Jor- 
dan V.  Giblin,  12  Cal.  100. 

8.  How  time  of  publication  is  computed... 
I'ormerly,  publication  was  required  (against  a 
lion-resi'dent  of  the  state)  to  be  at  least  once  a 
week,  and  for  a  time  "not  less  than  three 
miinths."  Under  the  law  as  it  then  stood,  it  was 
held  that  a  summons  published  "from  the  10th  of 
January  to  the  9th  of  April,  inclusive,"  *as  pub- 
lished for  the  period  of  three  full  calendar 
months.  The  9th  of  January  and  the  10th  of 
April  cannot  be  included.  The  summons  had 
been  published  for  three  calendar  months  at  the 
close  of  the  9th  day  of  April,  and  the  first  day 
of  the  forty  within  which  defendant  was  required 
to  answer  was  on  the  10th  of  April.  Savings 
and  Loan  Society  v.  Thompson,  32  Cal.  350. 
AVhere  the  last  day  of  the  publication  of  a  sum- 
mons occurs  in  the  same  week  in  which  the  three 
months  expires,  the  publication  was  held  to  have 
been  made  for  a  sufficient  time,  and  the  court 
Tias  acquired  jurisdiction,  although  this  day  is 
not  fully  three  months  from  the  first  day  of  pub- 
lication. Savings  and  Loan  Society  v.  Thompson, 
32  Cal.  352  ;  see  also  Ronkendurff  v.  Taylor's 
Lessees,  4  Pet.  361;  7  L.  Ed.  886.  The  month 
contemplated  by  this  section  (§413)  is  a  calen- 
dar, not  a  lunar,  month.  Savings  and  Loan 
Society  v.  Thompson,  32  Cal.  350;  Sprague  v. 
Korway.   31   Cal.   173;   see   §  17,   ante,  subd.  6. 

9.  Mailing  summons  and  complaint,  directed 
to  residence  of  defendant.  If  the  residence  of  a 
non-resident  of  the  state  or  an  absentee  is 
known,  a  copy  of  the  complaint  and  summons 
must  be  put  into  the  post-office,  directed  to  such 
defendant    at   his   place   of   residence,    and   this   is 


the   ca.ie   also   as   to   an    infant   tinder  the   age   of 
fourteen  years.     Gray  v.  Palmer,  9  Cal.  638. 

10.  Defendant  has  forty  days  after  last  day  of 
publication  to  answer.  The  defendant,  after  the 
last  day  of  publication,  has  forty  days  in  which 
to  file  answer.  Service  of  summons  is  complete 
at  the  expiration  of  the  period  of  publication, 
and  the  time  for  answering  commences  to  run  at 
that  time.  Grewell  v.  Henderson,  5  Cal.  465; 
see  also  Savings  and  Loan  Society  v.  Thompson, 
32  Cal.  352. 

11.  Justices'  practice.  Order  of  publication 
made  by  justice  of  the  peace.  This  and  the  fol- 
lowing section  are  made  specially  applicable  to 
justices'  courts.  See  §  849,  post.  Section  845, 
post,  relating  to  practice  in  justices'  courts,  fixes 
twelve  days  as  the  time  within  which  summons 
must  require  defendant  to  answer;  but  §  849,  by 
permitting  service  to  be  made  lay  publication, 
necessarily  requires  that  the  time  should  exceed 
ten  days,  and  that  the  provisions  of  this  section 
(§  412)  and  the  following  section  (§  413)  should 
be  pursued  in  justices'  courts.  Hisler  v.  Carr, 
34  Cal.  646;  see  also  Seaver  v.  Fitzgerald,  23 
Cal.  86. 

12.  General  effect  of  judgment  obtained  by 
publication  of  summons,  etc.  A  judgment  ob- 
tained by  publication  of  summons  against  a  de- 
fendant out  of  the  state  in  which  the  judgment 
is  rendered,  though  it  may  be  enforced  against 
his  property  in  that  state,  has  no  binding  force 
in  personam,  and  is  a  mere  nullity  when  at- 
tempted to  be  enforced  in  another  state.  Kane 
V.  Cook,  8  Cal.  449;  see  note  to  §  415,  post. 

13.  When  judgment  may  be  attacked  for  defect 
in  affidavit  or  order  for  publication.  See  the  very 
elaborate  opinions  in  the  case  of  Hahn  v.  Kelly, 
34  Cal.  391,  94  Am.  Dec.  742,  contained  in  note 
to  §415,  post;  also  Jordan  v.  Giblin,  12  Cal. 
100;  People  v.  Huber,  20  Cal.  81;  Forbes  v. 
Hyde,  31  Cal.  342;  Braly  v.  Seaman,  30  Cal.  610. 


§  414.  Proceedings  where  there  are  several  defendants,  and  part  only  are 
served.  When  the  action  is  against  t'^vo  or  more  defendants  jointly  or  sev- 
erally liable  on  a  contract,  and  the  summons  is  served  on  one  or  more,  but 
not  on  all  of  them,  the  plaintiff  may  proceed  against  the  defendants  served 
in  the  same  manner  as  if  they  were  the  only  defendants. 

Joining   persons   severally   liable   upon   instru-        Cal.     577;     23     Pac.     198.     In     an     action 

against  a  married  woman,  the  husband  is 
a  necessary  party  defendant,  and  must  also 
be  served;  he  is  joined  solely  for  .the 
protection  of  the  v^if  e.  McDonald  v.  Porsh, 
136  Cal.  301;  68  Pac.  817.  The  bringing 
of  an  action  against  all  the  guarantors 
upon  a  joint  and  several  obligation  is  not 
a  waiver  of  the  right  to  their  several 
liability,  although  judgment  is  obtained 
against  some,  and  others  have  not  been 
served.  Melander  v.  Western  National 
Bank,  21  Cal.  App.  462;   132  Pac.  265. 

Service  on  all  essential  to  a  several 
judgment.  Service  upon  all  the  defend- 
ants, whether  charged  as  joint  or  several 
debtors,  is  essential  to  the  validity  of  a 
several  judgment  against  each.  Treat  v. 
McCall,  10  Cal.  511;  Bowen  v.  May,  12 
Cal.  348;  Schloss  v.  White,  16  Cal.  65. 
Where  only  one  of  two  defendants,  jointly 
indebted,  is  served,  a  several  judgment 
may  be  entered  against  him.  Hirsehfield 
V.  Franklin,  6  Cal.  607.  In  an  action 
against  partners,  the  plaintiff  may  proceed 
against  the  defendants  alone  who  are 
served;  to  sustain  a  judgment  against  a 
defendant,  he  must  have  been  served  with 
l^rocess,  or  brought  into  court  through 
some  form  of  law.  Ingraham  v.  Gilde- 
meester,   2   Cal.   88;   Schloss  v.  White,  16 


meuts.     Ante.  §  383. 

Judgment  against  some  defendants,  proceedings 
continuing  against  others      Post,  §  579. 

Joint  debtors,  proceedings  against,  after  Judg- 
ment against  some.     Post,  §§  989  et  seq. 

Legislation  §  414.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  32  (New  York  Code, 
§  135),  which  read;  "Where  the  action  is  against 
two  or  more  defendants,  and  the  summons  is 
served  on  one  or  more,  but  not  on  all  of  them, 
the  plaintiff  may  proceed  as  follows:  1.  If  the 
action  be  against  the  defendants  jointly  indebted 
upon  a  contract,  he  may  proceed  against  the 
defendant  served,  unless  the  court  otherwise 
direct;  and  if  he  recover  judgment,  it  may  be 
entered  against  all  the  defendants  thus  jointly 
indebted,  so  far  only  as  that  it  may  be  enforced 
against  the  joint  property  of  all,  and  the  sepa- 
rate property  of  the  defendant  served;  or,  2.  If 
the  action  be  against  defendants  severally  liable, 
he  may  proceed  against  the  defendants  served, 
in  the  same  manner  as  if  they  were  the  only 
defendants." 

Construction  of  section.  This  section 
does  not  apply  to  actions  for  the  foreclo- 
sure of  mortgages  on  real  estate.  Bowen  v. 
May,  12  Cal.  348. 

Defendants  jointly  and  severally  liable. 
In  an  action  against  two  or  more  defend- 
ants, the  plaintiff,  failing  to  make  out  the 
joint  liability  of  all,  may  take  judgment 
against  one  or  more.  Rowe  v.  Chandler,  1 
Cal.  167;  Sterling  v.  Hanson,  1  Cal.  478; 
Lewis  V.  Clarkin,  18  Cal.  399;  People  v. 
Prisbie,  18  Cal.  402;  Shain  v.  Forbes,  82 


313 


JUDGMENT,    WHERE    ALL    NOT    SERVED — PARTNERSHIPS. 


§414 


Cal.  65.  In  an  action  against  three  co- 
partners, where  one  did  not  apj)ear,  and 
no  default  was  entered  against  him,  and  it 
appeared  that  he  died  after  the  action  was 
commenced,  the  verdict  should  have  been 
entered  only  against  the  others,  who  an- 
swered; if  he  was  served  and  failed  to 
answer,  his  default  should  have  been  regu- 
larly entered;  if  he  was  not  served,  the 
action  should  have  regularly  proceeded 
against  the  defendants  who  were  served, 
or  who  api)eared  and  answered.  Alpers  v. 
Schammel,  75  Cal.  590;  17  Pac.  708.  At 
common  law,  where  a  joint  action  was 
brought  against  several  defendants,  and 
one  of  them  was  not  served,  no  judgment 
could  be  effective  against  the  rest  until 
such  defendant  was  driven  to  outlawry. 
Stearns  v.  Aguirre.  6  Cal.  176. 

Proper  judgment,  where  all  not  served. 
In  an  action  upon  a  joint  and  several 
promissory  note,  where  one  of  the  defend- 
ants makes  default,  and  the  other  answers, 
it  is  error  to  enter  final  judgment  against 
the  defaulting  defendant,  pending  the 
proceeding.  Stearns  v.  Aguirre,  6  Cal.  176; 
Ware  v.  JRobinson,  9  Cal.  107.  When  the 
action  is  against  several  defendants 
jointly,  only  a  portion  of  whom  are  served, 
judgment  may  be  taken  against  those  who 
are  served,  and  proceedings  afterwards 
had  against  those  not  served.  Roberts  v. 
Donovan,  70  Cal.  lOS;  9  Pac.  180;  11  Pac. 
599.  In  an  action  against  defendants  sev- 
erally liable,  the  clerk  may,  upon  the  ap- 
plication of  the  plaintiff,  enter  judgment, 
upon  default,  against  the  parties  served, 
without  regard  to  the  other  parties  named 
in  the  complaint.  Kelly  v.  Van  Austin,  17 
Cal.  564.  In  an  action  against  several  de- 
fendants on  their  joint  contract,  for  the 
recovery  of  damages  only,  the  clerk  has 
power  to  enter  the  separate  defaults  of 
those  defendants  who  have  been  served 
and  have  not  answered,  and  to  enter  a 
joint  judgment  by  default  against  all  of 
those  served,  although  other  of  the  defend- 
ants have  not  been  served;  but  he  has  no 
power  to  enter  a  judgment  by  default 
against  a  part  only  of  the  defendants,  who 
have  been  served  and  have  not  answered. 
Wharton  v.  Harlan,  68  Cal.  422;  9  Pac. 
727.  In  an  action  on  a  joint  demand 
against  two  defendants,  where  service  was 
made  on  one,  who  answered,  but  service 
was  not  made  on  the  other,  who  did  not 
appear,  judgment  entered  against  the 
former  is  not  void.  Kelly  v.  Bandini,  50 
Cal.  530.  In  an  action  against  defendants 
jointly  and  not  severally  liable,  where  all 
are  not  served,  the  clerk  may,  upon  appli- 
cation of  the  plaintiff,  enter  judgment 
against  all,  to  be  enforced  against  the 
joint  property  of  all,  and  the  separate 
property  of  those  served;  entry  in  any 
other  form  is  unavailing  for  any  purpose. 
Kelly  V.  Van  Austin,  17  Cal.  564;  Wallace 
V.  Eldredge,  27  Cal.  495;  and  see  Glidden 


V.  Packard,  28  Cal.  649;  Willson  v.  Cleave- 
land.  30  Cal.  192;  Welsh  v.  Kirkpatrick, 
30  Cal.  202;  89  Am.  Dec.  85;  Providence 
Tool  Co.  V.  Prader,  32  Cal.  634;  91  Am. 
Dec.  598;  Sacramento  County  v.  Centra! 
Pacific  K.  R.  Co.,  61  Cal.  250;  .Tunkans  v. 
Bergin,  64  Cal.  203;  30  Pac.  G27;  Reinhart 
v.  Lugo,  86  Cal.  395;  21  Am.  St.  Rep.  52; 
24  Pac.  1089;  Lacoste  v.  Eastland,  117  Cal. 
673;  49  Pac.  1046;  Kennedy  v.  Mulligan, 
136  Cal.  556;  69  Pac.  291.  "The  party  not 
served  is  not  a  proper  party  defendant  in 
an  action  on  the  judgment  against  the 
party  served.  Tav  v.  Hawlev,  39  Cal.  93; 
Stewart  v.  Spaulding,  72  CaL  264;  13  Pac. 
661;  Cooper  v.  Burch,  140  Cal.  548;  74  Pac. 
37.  In  an  action  against  two  or  more  de- 
fendants, where  all  are  not  served,  the 
judgment  must  bind  the  joint  property  of 
all.  Bovven  v.  May,  12  Cal.  348.  Where 
the  action  is  upon  a  joint  and  several  con- 
tract, the  court  may  proceed  against  one 
defendant,  who  voluntarily  appears,  and 
render  judgment  against  him.  Bell  v. 
Adams,  150  Cal.  772;  90  Pac.  118.  In  an 
action  against  the  defendants  jointly,  on  a 
joint  and  several  obligation,  the  entry  of 
final  judgment,  upon  default,  against  one. 
Is  a  discharge  of  the  other.  Stearns  v. 
Aguirre,  6  Cal.  176.  In  an  action  against 
two  partners,  both  of  whom  were  served, 
where  the  answer  denied  the  indebtedness, 
and  the  plaintiff  failed  to  establish  a  joint 
indebtedness,  a  verdict  in  favor  of  one  and 
against  the  other  is  valid.  Rowe  v.  Chan- 
dler, 1  Cal.  167.  In  an  action  against  co- 
partners, in  which  all  the  individuals 
composing  the  firm  are  set  forth,  in  the 
complaint  and  summons,  judgment  cannot 
be  rendered  against  those  who  have  not 
been  served  and  who  do  not  appear. 
Davidson  v.  Knox,  67  Cal.  143;  7  Pac.  413; 
Feder  v.  Epstein,  69  Cal.  456;  10  Pac.  785. 
Evidence  that  an  action  is  against  the  in- 
dividual members  of  a  partnership,  doing 
business  under  a  particular  firm  name,  can- 
not serve  as  an  allegation  of  that  fact. 
San  Francisco  Sulphur  Co.  v.  JEtn&  In- 
demnity Co.,  11  Cal.  App.  695;  106  Pac. 
111.  If  a  complaint  is  against  persons  in- 
dividually named,  the  addition  of  words 
describing  a  partnership  cannot  make  the 
partnership  described  a  party  defendant  to 
the  action.  Maclay  Co.  v.  Meads,  14  Cal. 
App.  363;  112  Pac.  195.  A  partnership 
is  properly  sued,  where  the  action  is  ex- 
pressly brought  against  it  as  such.  Maclay 
Co.  V.  Meads,  14  Cal.  App.  363;  112  Pac. 
195. 

CODE  COMMISSIONERS'  NOTE.  1.  Construc- 
tion of  section  generally.  Section  32  of  the 
Practice  Act,  from  which  this  section  is  taken, 
reads  as  follows:  "§32.  Where  the  action  is 
against  two  or  more  defendants,  and  the  sum- 
mons is  served  on  one  or  more,  but  not  on  all  of 
them,  the  plaintiff  may  proceed  as  follows: 
1.  If  the  action  be  aeainst  the  defendants  jointly 
indebted  upon  a  contract,  he  may  proceed  against 
the  defendant  served,  unless  the  court  otherwise 
direct;    and   if   he    recover  judgment,    it   may    be 


414 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


314 


entered  against  all  the  defendants  thus  jointly 
indebted,  so  far  only  as  that  it  may  be  enforced 
against  the  joint  property  of  all,  and  the  sepa- 
rate property  of  the  defendant  served;  or,  2.  If 
the  action  be  apainst  defendants  severally  liable, 
he  may  proceed  against  the  defendants  served, 
in  the  same  manner  as  if  they  were  the  only  de- 
fendants." This  section  provides  that:  "If  the 
action  be  against  defendants  jointly  indebted  upon 
a  contract,  he  may  proceed  against  the  defend- 
ants served,  unless  the  court  otherv^ise  direct," — 
that  is  to  say,  unless  the  court  requires  the  other 
defendants  to  be  served  before  proceeding  to  trial 
and  judgment.  If  he  does  "proceed  against  the 
defendants  served,"  the  section  provides  that  he 
shall  take  judgment:  against  all  of  the  defendants, 
to  be  enforced  against  the  joint  property  of  all 
the  defendants,  and  the  separate  p"roperly  of  those 
served.  By  the  terms  of  the  statute,  the  plain- 
tiff proceeds  only  against  the  defendants  served, 
and  judgment  is  entered  against  them,  but  not 
against  those  who  were  not  served.  The  defend- 
ants not  served  are  not  bound  by  the  judgment, 
nor  are  they  personally  liable  for  its  satisfaction; 
but  the  statute  provides  that  the  property  in 
which  they  are  jointly  interested  with  the  other 
defendants  may  be  taken  in  execution  for  the 
satisfaction  of  the  judgment.  This  provision  of 
the  statute  will  hereafter  be  noticed.  When  cases 
involving  this  or  similar  provisions  of  the  stat- 
utes of  other  states  have  been  under  considera- 
tion, it  has  been  repeatedly  held  that  the  statute 
changed  the  common-law  rule,  which  is,  that,  in- 
an  action  upon  a  joint  contract,  the  plaintiff  must 
recover  against  all  or  none.  People  v.  Frisbie,  18 
Cal.  402;  Lewis  v.  Clarkin,  18  Cal.  399.  The 
language  of  those  cases  clearly  indicates  that, 
under  the  statutory  rule,  the  plaintiff'  may  re- 
cover upon  a  joint  contract  against  one,  or  any 
number  less  than  all  of  the  joint  debtors,  that 
is  to  say,  he  may  take  judgment  in  the  usual 
form  against  those  served,  and,  in  addition,  the 
judgment  may  be  enforced  against  the  joint  prop- 
erty of  all  the  joint  debtors.  But  the  judgment 
is  against  those  only  who  were  served  with  pro- 
cess. The  statute  provides  that  the  "joint  prop- 
erty" of  all  the  defendants  may  be  taken  in  exe- 
cution for  the  satisfaction  of  the  judgment,  but 
none  of  the  cases  in  this  court  defines  such  joint 
property.  We  have  not  noticed  in  any  of  the 
cases  in  New  York  that  the  question  has  been 
distinctly  passed  upon  as  to  what  property  con- 
stitutes the  "joint  property"  mentioned  in  the 
statute ;  but  it  is  assumed  in  several  cases  that 
it  is  partnership  property  which  is  meant  by  that 
term.  Mason  v.  Denison,  15  Wend.  64;  Mervin 
v.  Kumbel,  23  Wend.  293;  Sterne  v.  Bentley.  3 
How.  Pr.  331.  In  Mason  v.  Denison,  it  is  said 
that  the  term  applies  to  the  property  which  one 
defendant  might  apply  to  the  satisfaction  of  the 
debt,  without  consulting  his  co-contractor.  Ac- 
cepting the  restriction  indicated  in  that  case,  or 
even  limiting  the  meaning  of  "joint  property" 
to  partnership  property  of  the  persons  alleged 
to  be  joint  debtors,  we  are  utterly  unable  to  see 
how  a  judgment  that  is  to  be  enforced  against 
the  interest  in  such  property  of  a  person  who 
has  not  been  served  with  process,  and  has  not 
appeared  in  the  action,  can  be  maintained.  It 
is  a  cardinal  principle  of  jurisprudence,  that  a 
judgment  shall  not  bind  or  conclude  a  man, 
either  in  respect  to  his  person  or  property,  un- 
less he  has  had  his  day  in  court.  No  person 
shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law,  says  the  constitu- 
tion; but  this  principle  is  older  than  written  con- 
stitutions, and,  without  invoking  the  constitu- 
tional declaration,  every  person  may,  as  a  matter 
of  common  right,  insist  that  he  be  heard  in  his 
own  defense  before  judgment  passes  which  binds, 
charges,  or  injuriously  affects  his  person  or  his 
estate.  It  is  no  answer  to  say  that  the  judg- 
ment affects  only  the  joint  property  of  the  de- 
fendants,— property  that  either  of  the  debtors 
might  apply  to  the  satisfaction  of  the  common 
debt, — for  that  assumes  that  the  defendants  are 
j  )int  debtors,  and  that  may  be  to  the  defendant 
who   is   not   served   the   vital   point   of   the   contro- 


versy. He  may  be  ready  to  admit  every  allega- 
tion of  the  complaint,  except  that  he  is  a  party 
to  the  contract;  or  he  may  even  admit  the  con- 
tract, and  yet  be  ready,  if  an  opportunity  were 
presented,  to  make  a  successful  defense,  on  the 
ground  of  fraud,  failure  of  consideration,  pay- 
ment, accord  and  satisfaction,  etc.  The  defend- 
ant who  is  served  may  be  ignorant  of  the  defenses 
upon  which  his  co-defendants  would  rely;  or  he 
may,  either  negligently  or  purposely,  omit  to 
present  them.  And,  whatever  his  answer  may 
be,  he  only  appears  for  himself;  and  there  is 
nothing  in  the  law  regulating  the  acquisition  or 
disposition  of  joint  property  which  confers  upon  . 
one  joint  owner  the  right  to  defend  actions  for 
his  fellows.  Unless  it  can  be  shown  that  such 
property  is  under  the  ban  of  law,  a  judgment 
which  subjects  to  execution  the  interest  of  a 
person  who  has  no  opportunity  to  be  heard  in  the 
action  cannot  be  upheld  without  violating  prin- 
ciples which  lie  at  the  base  of  all  judicial  pro- 
ceedings.   Tay  v.  Hawley,  39   Cal.   95. 

2.  Constitutionality  of  section.  See  note  1. 
There  have  been  several  cases  in  this  court  in- 
volving the  consideration  of  this  statute,  and  this 
question  does  not  seem  to  have  been  presented 
or  considered,  but  the  validity  of  the  statute 
seems  to  have  been  tacitly  assumed.  In  New 
York  the  validity  of  a  similar  statute  is  recog- 
nized, and  actions  on  the  judgment  have  been 
maintained  against  the  defendants  not  served. 
Dando  v.  Doll,  2  Johns.  87;  Bank  of  Columbia 
v.  Newcomb,  6  Johns.  98;  Taylor  v.  Pettibone, 
16  Johns.  66.  In  the  subsequent  case  of  Mer- 
vin V.  Kumbel,  23  Wend.  293,  it  was  considered 
that  the  authority  of  those  cases  was  binding 
upon  the  coart;  but  it  is  evident  from  the  opin- 
ions delivered  in  the  case,  and  particularly  that 
of  Mr.  Justice  Bronson,  that  the  judgment,  so 
far  as  it  aft'ects  the  defendants  not  served,  can- 
not be  sustained  on  any  sensible  or  even  plausi- 
ble ground.  To  say  that  a  person  is  liable  to 
an  action  on  a  judgment,  but  that  he  may,  in 
that  action,  litigate  the  cause  of  action  upon 
which  the  judgment  was  rendered — to  hold  that 
he  may  be  sued  upon  the  judgment,  but  that  if 
he  pleads  the  proper  matters  in  defense,  the  judg- 
ment is  not  even  prima  facie  evidence  against 
him — is,  to  our  minds,  altogether  unsatisfactory 
and  illogical.  There  is  a  further  ground  for  hold- 
ing that  the  defendant  who  was  not  served  ia 
not  a  proper  party  to  an  action  on  the  judgment. 
Provision  is  made  in  the  code,  by  which  a  de- 
fendant who  was  not  originally  served  with  the 
summons  may  be  bound  by  the  judgment.  (§§  989 
to  994.)  He  is  summoned  to  show  cause  why 
he  should  not  be  bound  by  the  judgment,  and  he 
may  answer  the  complaint,  as  he  might  have  done 
had  he  been  originally  served,  or  he  may  deny 
the  judgment,  or  may  set  up  any  defense  that 
may  have  arisen  subsequently  to  the  judgment. 
These  proceedings  furnish,  in  our  opinion,  the 
exclusive  mode  by  which  he  can  be  bound  by  the 
judgment,  and  they  necessarily  imply  that  he  is 
not  already  bound  by  it.  The  action  is  really  an 
action  on  the  original  joint  contract,  and  matters 
of  defense  in  respect  to  the  judgment  are  merely 
incidental  to  the  action,  ^\'ere  it  not  for  the 
statute,  no  action  could  be  maintained  against 
him  on  the  contract,  for  the  reason  that  it  would 
become  merged  in  the  first  judgment;  and  the 
merger  is  restrained,  only  for  the  purpose  and 
to  the  extent  of  enabling  the  proceedings  to  be 
had  as  prescribed  in  the  statute.  Those  provis- 
ions of  the  statute  are  useless  if  it  is  true  that 
an  action  can  be  maintained  on  the  judgment 
against  a  defendant  not  served  in  the  former  ac- 
tion.   Tay  V.  Hawley,  39  Cal.  97. 

3.  Personal  judgment  cannot  be  entered  against 
one  of  several  defendants  jointly  liable.  In  an 
action  against  defendants  jointly  liable,  it  was 
held  to  be  errur  to  enter  a  personal  judgment 
asainst  one  of  the  defendants  who  was  not  served 
with  process.  Treat  v.  McCall,  10  Cal.  512.  And 
where  all  defendants  were  jointly  liable  and  all 
served,  judgment  by  default  cannot  be  entered 
against    one   of    them.      This    section    of    the    code 


315 


SERVICE — PROOF,    HOW    MADE — RETURN    BY    SHERIFF. 


§415 


applies    only    where    all    of    the    defendants    have 
not  been   served.    Stearns  v.  Agnirre,  7  Cal.  419. 

4.  Section  not  applicable  to  foreclosing  suits. 
It  was  held  that  this  iirovision,  which,  in  an  ac- 
tion against  two  or  more  defendants,  all  of  whom 
■were  not  served  with  process,  authorized  judg 
-inent  to  be  entered  to  bind  the  joint  property  of 
all,  did  not  apply  to  proceedinsrs  for  the  fore- 
-closuro  of  a  mortgage  upon  real  estate.  Bowen  v. 
May,  12  Cal.  351. 

5.  Appearance  recited  in  record  confined  to  par- 
ties served.  Where  the  record  recites,  in  general 
terms,  the  appearance  of  the  parties,  such  api)rar- 
tince  will  be  confined  to  those  parties  served  with 
process.  Miller  v.  Ewing,  8  Smcdes  &  M.  4'2  1'. 
Torrey  v.  Jordan,  4  How. 
McKinstry,  2  Smedes  & 
Toomer,  14  Smedes  &  M. 
13  Cal.  5G0. 

6.  Where  plaintiff  waives  right  to  delay  trial 
until  all  the  defendants  were  served.  See  Meagher 
V.  Gagliardo,  ;!.5  Cal.  (i02. 

7.  Judgment  cannot  be  had  against  defendant 
not  served.  In  an  action  against  defendant  sued 
«s  partners  it  was  held  that  to  .sustain  a  judg- 
ment against  a  defendant  he  must  be  served  with 
process,  or  brought  into  court  through  some  of 
the    forms    of    law.     Ingraham    v.    Gildemester,    2 


(Miss.)  401;  Dean  v. 
M.  213;  Edwards  v. 
76;   Chester  v.  Miller, 


Cal.  89;  see  also  Estell  v.  Chenery,  3  Cal.  468. 
And  where  process  was  not  served  on  a  party  iu 
a  suit  against  several  defendants  jointly  liable, 
he  cannot  be  made  a  defendant  in  a  suit  upon  the 
judgment  against  the  party  served.  Tay  v.  Haw- 
ley,   39   Cal.   9.i. 

8.  Actions  against  defendants  severally  liable, 
and  action  against  defendants  jointly  liable.  It 
was  held  that  "if  the  action  be  against  defend- 
ants severally  liable,  the  clerk  can,  upon  ap])Ii- 
cation  of  the  plaintiff,  enter  judgment  upon 
default  against  the  parties  served,  without  regard 
to  the  other  parlies  named  in  the  complaint.  If 
the  action  be  against  defendants  jointly  and  not 
severally  liable,  and  only  a  portion  of  them  are 
served,  the  clerk  can  also,  upon  like  application, 
enter  judgment;  but  in  that  case  it  must  be  en- 
tered against  all  the  defendants,  and  so  as  to  be 
enforced  against  the  joint  property  of  all.  and 
the  separate  property  of  those  served."  Kelly  v. 
Van  Austin,  17  Cal.  566.  But  see  Tay  v.  Haw- 
ley,  supra. 

9.  For  several  judgments  against  defendants, 
etc.,  see  §§  578,   579,  post. 

10.  When  one  or  more  may  sue  or  defend  for 
all.      See  §§  382,  383,  384,  ante. 

11.  For  proceedings  against  joint  debtors,  see 
§§  989-994. 

415.     Proof  of  service,  how  made.     Proof  of  the  service  of  summons  and 
■complaint  must  be  as  follows: 

1.  If  served  by  the  sheriff,  his  certificate  thereof; 

2.  If  by  any  other  person,  his  affidavit  thereof ;  or, 

3.  In  case  of  publication,  the  affidavit  of  the  printer,  or  his  foreman,  or 
principal  clerk,  showing  the  same;  and  an  affidavit  of  a  deposit  of  a  copy 
of  the  summons  in  the  post-office,  if  the  same  has  been  deposited ;  or, 

4.  The  written  admission  of  the  defendant. 

In  case  of  service  otherwise  than  by  publication,  the  certificate  or  affidavit 
must  state  the  time  and  place  of  service. 


§ 


Proof  of  service  by  affidavit.    See  post,  §  2009. 

Legislation  §  415.  1.  Enacted  March  11,  1872; 
^ased  on  Practice  Act,  §§  33,  34  (New  York 
Code,  §  138).  When  enacted  in  1872,  (1)  in 
*he  first  paragraph,  the  words  after  "service" 
were  changed  from  "of  the  summons  shall  be  as 
follows";  (2)  in  subd.  2,  the  clause,  "or  his 
■deputy,  the  affidavit  or  certificate  of  such  sheriff 
-or  deputy,"  was  omitted,  and  "his  certificate 
thereof"  inserted;  (3)  in  subd.  3,  the  word  "has" 
was  changed  from  "shall  have"  ;  in  subd.  5 
(which  was  §  34),  the  word  "must"  was  changed 
irom  "shall,"  and  the  word  "the"  omitted  before 
"service." 

2.  Amendment  by  Stats.  1901,  p.  131;  un- 
constitutional.     See  note  ante,  §  5. 

Return  of  service  by  sheriff.  The  sher- 
iff's return  is  prima  facie  evidence  of  ser- 
vice (People  V.  Lee,  128  Cal.  330;  60  Pac. 
&54) ;  and  a  description,  iu  the  return,  of 
the  party  served  as  an  officer  of  a  cor- 
poration, is  prima  facie  evidence  of  the 
status  of  that  person.  Kowe  v.  Table 
Mountain  Water  Co.,  10  Cal.  441;  Wilson 
V.  Spring  Hill  Quartz  Mining  Co.,  10  Cal. 
445;  Golden  Gate  Consol.  Mining  Co.  v. 
Superior  Court,  65  Cal.  187;  3  Pac.  628; 
Keener  v.  Eagle  Lake  Land  etc.  Co.,  110 
•Cal.  627;  43  Pac.  14.  A  deputy's  return 
must  be  in  the  name  of  the  sheriff.  .Joyce 
■V.  Joyce,  5  Cal.  449;  Eovpley  v.  Howard,  23 
■Cal.  401;  Eeinhart  v.  Lugo,  86  Cal.  395; 
21  Am.  St.  Eep.  52;  24  Pac.  1089.  A  cer- 
tificate return  by  a  constable  is  sufficient, 
^nly    in     a     justice's     court.      CardvFell    v. 


Sabichi,  59  Cal.  490;  Berentz  v.  Belmont 
Oil  Mining  Co.,  148  Cal.  577,  580;  113  Am. 
St.  Rep.  308;  84  Pac.  47.  The  return  may 
be  amended.  Pico  v.  Sunol,  6  Cal.  294; 
Drake  v.  Duvenick,  45  Cal.  455;  Estsrte  of 
Newman,  75  Cal.  213;  7  Am.  St.  Rep.  146; 
16  Pac.  887;  Herman  v.  Santee,  103  Cal. 
519;  42  Am.  St.  Rep.  145;  37  Pac.  509. 
The  presumption  is  in  favor  of  the  valid- 
ity of  the  return  (Curtis  v.  Herrick,  14 
Cal.  117;  73  Am.  Dec.  632;  Brown  v.  Law- 
son,  51  Cal.  615),  unless  it  appears  on  the 
face  thereof  that  it  is  insufficient  (People 
V.  Bernal,  43  Cal.  385);  and  the  presump- 
tion of  the  legality  of  service  will  not 
overcome  facts  to  the  contrary  in  the  re- 
turn (Hahn  v.  Kelly,  34  Cal.  391;  94  Am. 
Dec.  742) ;  as  where,  in  an  action  against 
a  domestic  corjjoration,  the  return  shows 
the  defendant  to  be  a  foreign  corporation. 
Elder  v.  Grunsky,  127  Cal.  (37;  59  Pac.  3oO. 
The  sheriff's  return  is  not  traversable;  nor 
will  the  court  permit  it  to  be  collaterally 
attacked,  even  where  he  is  shown  to  be 
guilty  of  fraud  and  collusion;  the  law  pre- 
sumes that  every  officer  will  fully  perform 
his  duty,  and  that  he  has  done  so  in  everv 
instance,  until  the  contrary  is  shown;  a 
fortiori,  it  will  never  bend  this  principle 
upon  the  hypothesis  that  a  sworn  officer 
of  the  law  will  commit  perjury.  Egery  v. 
Buchanan,  5  Cal.  53;  Johnson  v.  Gorham, 


§415 


MANNER  OF  COMMENCING  CIVIL  ACTIONS, 


31& 


6  Cal.  195;  65  Am.  Dec.  501.  The  sheriff's 
return  is  suiEcient  to  show  the  date  of  ad- 
mission of  service.  Crane  v.  Brannan,  3 
Cal.  192;  Alderson  V.  Bell,  9  Cal.  315;  Mont- 
gomery V.  Tutt,  11  Cal.  307.  The  official 
capaciV  of  the  officer  making  the  service 
must  be  stated  in  the  return.  Roveley  v. 
Howard,  23  Cal.  401.  The  court  may  allow 
proof  of  service  to  be  amended  and  filed 
nunc  pro  tunc  as  of  the  date  of  judgment, 
if  the  return  is  omitted  or  incorrectly 
made,  but  the  facts  exist  which  give  the 
court  jurisdiction.  Herman  v.  Sautee,  103 
Cal.  5i9;  42  Am.  St.  Eep.  145;  37  Pac.  509; 
overruling  Eeinhart  v.  Lugo,  86  Cal.  395; 
21  Am.  St.  Eep.  52;  24  Pac.  1089;  Howard 
v.  McChesney,  103  Cal.  536;  37  Pac.  523; 
Woodward  v"  Brown,  119  Cal.  283;  63  Am. 
St.  Eep.  108;  51  Pac.  2,  542;  Bank  of  Or- 
land  v.  Dodson,  127  Cal.  208;  78  Am.  St. 
Eep.  42;  59  Pac.  584.  The  clerk,  in  the 
absence  of  proof  of  service,  cannot  enter 
default  of  defendant.    Stearns  v.  Aguirre, 

7  Cal.  443;  Kellv  v.  A^an  Austin,  17  Cal. 
564;  Glidden  v.  Packard,  28  Cal.  649;  Will- 
son  V.  Cleaveland,  30  Cal.  192;  Welsh  v. 
Kirkpatrick,  30  Cal.  202;  89  Am.  Dec.  85; 
Bond  v.  Pacheco,  30  Cal.  530;  Eeinhart  v. 
Lugo,  86  Cal.  395;  21  Am.  St.  Eep.  52;  24 
Pac.  1089.  Where  the  original  summons, 
with  proof  of  service,  is  lost  from  the 
files  of  the  court,  the  order  of  the  court, 
upon  proof  of  the  loss,  that  a  copy  thereof 
may  be  filed  and  used  in  place  of  the 
original,  is  a  determination  that  such  copy 
is  a  correct  copy  of  the  original,  and  it  is 
entitled  to  the  same  weight  as  original. 
Hibernia  Sav.  &  L.  Soc.  v.  Matthai,  116 
Cal.  424;  48  Pac.  370. 

Affidavit  of  return  by  other  person. 
The  return  must  show  that  the  person  mak- 
ing service  is  properly  qualified.  McMillan 
V.  Reynolds,  11  Cal.  372.  A  return  stating 
that  a  copy  of  the  summons  was  personally 
served  on  the  defendant  is  proof  that  a 
copy  of  the  summons  was  delivered  to  de- 
fendant personally,  and  is  sufficient  to 
give  the  court  jurisdiction.  Drake  v.  Duve- 
nick,  45  Cal.  455.  The  return,  where  ser- 
vice was  by  another  than  the  sheriff,  may 
be  amended.  Herman  v.  Santee,  103  Cal. 
519;  42  Am.  St.  Eep.  145;  37  Pac.  509.  A 
return,  which  states  the  facts  making  the 
affiant  a  competent  witness,  is  sufficient, 
without  stating  that  he  is  competent. 
Dimick  v.  Campbell,  31  Cal.  238.  There  is 
a  presumption  that  the  defendant  resides 
in  the  county  in  which  he  is  served  with 
process.  Calderwood  v.  Brooks,  28  Cal. 
151;  King  v.  Blood,  41  Cal.  314;  Pellier  v. 
Gillespie,  67  Cal.  582;  8  Pac.  185.  The 
affidavit  of  the  person  making  the  service, 
where  it  is  the  only  evidence  of  service, 
must  show  the  facts  required  by  the  stat- 
ute, and  must  be  sworn  to  before  it  can 
be  used  as  evidence.  Hamilton  v.  Hamil- 
ton. 20  Cal.  App.  117;  128  Pac.  338.  The 
affidavit  being  the  only  evidence  of  ser- 
vice, the  court  acquires  no  jurisdiction  un- 


less it  is  made  as  required  by  law.  Ham- 
ilton V.  Hamilton,  20  Cal.  117;  128  Pac. 
338.  If  the  summons  was  duly  and  regu- 
larly served,  a  defendant  admitting  the- 
fact  in  his  application  to  vacate  a  default 
judgment,  is  in  no  position  to  object  to 
defects  in  the  affidavit  of  service.  Ham- 
ilton v.  Hamilton,  20  Cal.  App.  117;  128 
Pac.  338. 

Return  in  cases  of  service  by  publica- 
tion. The  affidavit  and  the  order,  direct- 
ing the  publication  of  the  summons,  con- 
stitute no  part  of  the  judgment  roll.  Hahn 
v.  Kelly,  34  Cal.  391;  94  Am.  Dec.  742. 
Proof  that  the  order  of  publication  was 
complied  with,  and  showing  a  compliance 
with  the  law,  is  a  sufficient  showing  of 
such  service.  Sharp  v.  Daugney,  33  Cal. 
505.  Where  the  affidavit  of  proof  of  pub- 
lication shows  the  time  and  place  of  the 
hearing,  that  it  was  made  by  the  "prin- 
cipal clerk"  of  the  designated  newspaper, 
and  that  he  had  charge  of  all  the  adver- 
tisements therein,  there  is  a  substantial 
compliance  with  the  requirements  of  this 
section.  Pool  v.  Simmons,  134  Cal.  621;  66 
Pac.  872.  Where  it  is  clear  from  the  affi- 
davit that  there  is  but  one  clerk  in  the 
newspaper-office,  it  is  unnecessary  that  he 
should  describe  himself  as  principal  clerk. 
Gray  v.  Palmer,  9  Cal.  616.  An  affidavit 
showing  that  the  summons  was  printed 
weekly,  for  the  required  time,  in  a  news- 
paper published  both  daily  and  weekly,  is- 
sufficient.  Woodward  v.  Brown,  119  Cal. 
283;  63  Am.  St.  Eep.  108;  51  Pac.  2,  542. 
Where  the  affidavit  of  the  printer  states 
that  the  summons  was  published  one 
month,  but  the  judgment  states  that  it 
was  published  three  months,  or  that  ser- 
vice has  been  had  upon  the  defendant,  it 
will  be  presumed  that  other  proof  than 
that  contained  in  the  judgment  roll  was 
rendered;  to  presume  to  the  contrary 
would  be  to  deny  to  the  record  that  abso- 
lute verity  which  must  be  accorded  to  it. 
Hahn  v.  Kelly,  34  Cal.  391;  94  Am.  Dec. 
742.  Where  proof  is  made  of  service  by 
publication,  proof  of  service  by  the  sheriff 
is  unnecessary.  Seaver  v.  Fitzgerald,  23 
Cal.  85.  Proof  of  service  by  publication 
is  by  the  affidavit  of  the  printer,  or  his 
foreman  or  principal  clerk,  setting  forth 
the  fact,  and  where  and  how  long,  and  an 
affidavit  showing  a  deposit  in  the  post- 
office,  if  such  deposit  was  made.  Hahn  v. 
Kelly,  34  Cal.  391;  94  Am.  Dec.  742.  It 
is  immaterial  by  whom  the  deposit  of  sum- 
mons in  the  post-office  is  made.  Sharp  v. 
Daugney,  33   Cal.  505. 

Admission  of  service,  An  acknowledg- 
ment of  service  is  sufficient,  only  when 
reduced  to  writing  and  subscribed  by  the 
party;  a  verbal  acknowledgment  to  the 
sheriff  will  not  suffice.  Montgomery  v. 
Tutt,  11  Cal.  307.  When  the  proof  of  ser- 
vice consists  of  written  admissions  of  the 
defendants,  such  admissions,  to  be  avail- 
able, should  be  accompanied  by  some  evi- 


317 


JURISDICTION    ACQUIRED    WHEN — SERVICE — APPEARANCE. 


§416 


dence  of  the  genuineness  of  the  signatures 
of  the  parties;  in  the  absence  of  such  evi- 
dence, the  court  cannot  notice  them 
(Alderson  v.  Bell,  9  Cal.  315;  Hahn  v.  Kelly, 
S4  Cal.  391;  94  Am.  Dec.  742);  but  where 
the  judgment  recites  that  the  defendant 
was  regularly  served  with  process,  the  pre- 
sumption follows,  that  there  existed  every 
fact  essential  to  the  jurisdiction  of  the 
person.  Shirran  v.  Dallas,  2i  Cal.  App. 
405;    132   Pac.   88,   454. 

CODE  COMMISSIONERS'  NOTE.  1.  What  is 
meant  by  proof  of  service.  Effect  of  judgment 
on  defective  service.  Said  Sanderson,  J.,  in  his 
elaborate  and  able  opinior.  in  the  case  of  Hahn  v. 
Kelly,  34  Cal.  403,  94  Am.  Dec.  742:  "There 
are  two  modes"  [reprinting  to  the  last  paragraph 
of  the  opinion  on  p.  41].  See  also,  as  to  juris- 
diction of  defendant  by  service  of  summons  and 
in  support  of  the  case  of  Hahn  v.  Kelly,  above 
cited,  the  following  cases:  Sharp  v.  Brunnings, 
35  Cal.  528:  Quivey  v.  Porter,  37  Cal.  458. 

2.  Judgment  cannot  be  attacked  collaterally  on 
defective  return.  If  the  return  is  defective,  the 
defendant  must  appeal  from  the  judgment.  A 
mere  irregularity  of  service  is  not  sufficient  to 
enable  him  to  attack  the  judgment  collaterally. 
Dorente  v.  Sullivan,  7  Cal.  280;  see  Hahn  v. 
Kelly,  34  Cal.  403;  94  Am.  Dec.  742  (note  1, 
supra)  ;   Peck  v.  Strauss,   33  Cal.  678. 

3.  A  sheriff's  return  is  not  traversable,  and  a 
court  will  not  permit  it  collaterally  to  be  at- 
tacked, even  if  the  officer  is  shown  to  have  been 
guilty  of  fraud  and  collusion.  Sewell  on  Sheriifs, 
p.  387;  Watson  on  Sheriffs,  p.  72;  Egery  v.  Bu- 
chanan, 5  Cal.  56. 

4.  Service  by  sheriff  on  officers  of  a  corpora- 
tion.   See  §411,   ante,  notes   1,  2,  3. 

5.  Presumption  in  favor  of  return,  when  place 
vrhere  served  is  not  stated.  When  the  place  where 
the  writ  was  served  is  not  stated  in  the  return, 
the  court  should  assume  that  it  was  served  within 
the  jurisdiction  of  the  sheriff"  to  whom  it  was  di- 
rected. Crane  v.  Brannan,  3  Cal.  194;  Pico  v. 
Sunol,  6  Cal.  294. 

6.  Return  by  deputy  to  be  made  in  name  of 
principal.  If  a  return  is  made  by  a  deputy,  it 
must  be  made  in  the  name  of  the  sheriff.  Joyce 
V.  Joyce,  5  Cal.  449;  Rowley  v.  Howard.  23  Cal. 
401;  see  [code  commissioners']  note  to  §410, 
ante. 

7.  Affidavit  of  service  by  person  other  than 
sheriff  or  deputy.  The  affidavit  of  the  person 
serving  the  summons  must  show  all  the  facts 
which  are  required  to  make  a  valid  service  under 
the  provisions  of  the  four  preceding  sections.  The 
facts  necessary  to  show  a  valid  service  must  ap- 
pear affirmatively.  See  McMillan  v.  Reynolds,  11 
Cal.  372;  Dimick  v.  Campbell,  31  Cal.  238;  see 
also  Peek  v.   Strauss,  33   Cal.   678. 

8.  Proof  of  service  by  publication.  The  pub- 
lication of  summons  may  be  proved  by  the  affi- 
davit of  the  clerk,  of  the  publisher  of  the  paper, 
and  the  fact  that  the  summons  was  deposited  in 
a  pnst-office  may  also  be  proved  by  affidavit;  nor 
is  it  necessary  that  the  constable  (in  justice's 
court)  state  in  his  return  on  the  summons  that 
such  publication  was  made  and  such  deposit  made 
in  the  post-office.  Seaver  v.  Fitzgerald,  23  Cal. 
86. 

9.  Affidavit  of  publication  by  printer.  An  affi- 
davit in  the  following  terms,  "H.  F.  W.,  prin- 
cipal clerk  in  the  office  of  the  Union,"  etc., 
"deposes  and  says  that  the  notice,"  etc.,  was  held 
insufficient.  By  the  third  subdivision  of  this  sec- 
tion the  faftt  that  service  has  been  made  by  pub- 
lication  is   to   be   proved   by   the    "affidavit   of   the 


printi-r,  his  foreman,  or  principal  clerk."  These 
are  the  only  persons  competent  to  testify  on  the 
subject.  Thai  the  affiant  was  one  of  the  three 
is  itself  a  substantive  fact,  and  must  be  proved 
as  such  before  the  court  in  which  the  action  is 
pending  can  render  judgment  against'  the  par- 
tic's  to  whom  notice  i.s  intended  to  be  K'vi^n. 
In  the  affidavit  above  given  the  affiant  swears 
to  nothing  except  as  to  matters  set  forth  after 
the  word  "deposes."  He  names  himself  as  prin- 
cipal clerk,  but  he  does  not  swear  that  such  was 
his  position  in  fact.  Ex  parte  Bank  of  Monroe, 
7  Hill,  178;  42  Am.  Dec.  61;  Cunningham  v. 
Goelet,  4  Den.  71;  Staples  v.  Fairchild,  3  N.  Y. 
44;  Payne  v.  Young,  8  N.  Y.  158;  see  particu- 
larly, for  correct  form,  2  Barb.  Ch.  Prac.  706; 
and  Hill  v.  Hoover,  5  Wis.  370;  Steinbach  v. 
Leese,  27  Cal.  299.  But  it  was  held  that  if  there 
is  but  one  clerk  in  a  printing-office  he  need  not 
be  described  in  the  affidavit  of  publication  as 
"principal"  clerk.  See  Gray  v.  Palmer,  9  Cal. 
616.  And  it  was  held  that  an  objection  that  the 
affidavit  was  made  by  a  publisher  and  proprietor, 
and  not  by  the  "printer,  foreman,  or  principal 
clerk,"  was  fully  met  by  Bunce  v.  Reed,  16  Barb. 
347.  It  was  held  in  that  case  that  for  th;-  pur 
poses  of  the  question,  printers  and  pvrblishers 
might  be  considered  synonymous,  the  latter  be- 
ing within  the  spirit  of  the  statute.  Sharp  v. 
Daugney,  33  Cal.  513.  And  so,  also,  the  affidavit 
of  the  "proprietor"  of  a  printing-office  was  held 
sufficient.  Proprietor  and  printer  are  regarded  as 
synonymous  terms.  Quivey  v.  Porter,  37  Cul. 
464.  Where  the  affidavit  of  the  printer  was  to 
the  effect  that  publication  had  been  made  one 
month,  but  the  judgment  of  the  court  recites  that 
it  was  published  three  months,  the  recital  im- 
parts absolute  verity,  and  it  must  be  presumed 
that  some  additional  proof  had  been  made  to  the 
court  before  judgment.  Hahn  v.  Kelly,  34  Cal. 
403;  94  Am.  Dec.''742. 

10.  Affidavit  of  deposit  of  summons  In  post- 
office.  It  is  not  a  ground  for  objection  to  the 
affidavit  that  it  does  not  state  that  the  deposit 
was  made  in  a  United  States  post-office,  nor  that 
there  was  communication  by  mail  between  the 
place  of  deposit  and  the  place  to  which  the  pack- 
age was  addressed.  Sharp  v.  Daugney,  33  Cal. 
514.  And  a  copy  of  summons  and  complaint  must 
be  mailed  to  a  minor  under  fourteen  years  of 
age.  A  failure  to  do  so  cannot  be  rectified  by 
the  appearance  of  the  mother  of  the  child  on  her 
own  behalf.    Gray  v.  Palmer,   9  Cal.  616. 

11.  Admission  of  service  by  defendant.  An 
admission  of  service  must  be  in  writing,  signed 
by  the  defendant;  an  oral  admission  will  not  be 
sufficient.  Montgomery  v.  Tutt,  11  Cal.  307. 
The  place  of  service  need  not  be  stated  in  the 
admission.  The  statute  does  not  require  an  ad- 
mission of  service  to  designate  the  place  where 
the  service  was  made.  The  object  of  such  desig- 
nation, when  required,  is  to  determine  the  period 
within  which  the  answer  must  be  filed,  or  when 
default  may  be  taken.  Alderson  v.  Bell,  9  Cal. 
321;  Crane  v.  Brannan,  3  Cal.  194.  And  gen- 
erally, as  to  admission  of  service,  see  Sharp  v. 
Brunnings,  36  Cal.  533;  Crane  v.  Brannan,  3 
Cal.  194. 

12.  Evidence  of  genuineness  of  written  admis- 
sions of  defendants.  Proof  of  signatures.  It  is 
well  settled  that  courts  will  take  judicial  notice 
of  the  signatures  of  their  officers,  as  such,  but 
there  is  no  rule  which  extends  such  notice  to  the 
signatures  of  parties  to  a  cause.  When,  there- 
fore, ihe  proof  of  service  of  process  consists  of 
the  written  admissions  of  defendants,  such  ad- 
missions, to  be  available  in  the  action,  should 
be  accompanied  with  some  evidence  of  the  genu- 
ineness of  the  signatures  of  the  parties.  In  the 
absence  of  such  evidence,  the  court  cannot  notice 
them.  Litchfield  v.  Burwell,  5  How.  Pr.  346; 
Alderson  v.   Bell,   9   Cal.   321. 


§  416.  When  jurisdiction  of  action  acquired.  From  the  time  of  the  ser- 
vice of  the  summons  and  of  a  copy  of  the  complaint  in  a  civil  action,  ■where 
service  of  a  copy  of  the  complaint  is  required,  or  of  the  completion  of  the 
publication  when  service  by  publication  is  ordered,  the  court  is  deemed  to 


§416 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


318 


have  acquired  jurisdiction  of  the  parties,  and  to  have  control  of  all  the  sub- 
sequent proceedings.  The  voluntary  appearance  of  a  defendant  is  equiva- 
lent to  personal  service  of  the  summons  and  copy  of  the  complaint  upon 
him. 


Admission  of  service.    Ante,  §  415. 
Appearance.     Post,  §  1014. 
Waiver  of  summons.    Ante,  §  406. 

Legislation  §  416.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  35  (New  York  Code, 
§  139),  which  read:  "From  the  time  of  the 
service  of  the  summons  and  copy  of  complaint 
in  a  civil  action,  the  court  shall  be  deemed  to 
have  acquired  jurisdiction,  and  to  have  control  of 
all  the  subsequent  proceedings.  A  voluntary 
appearance  of  a  defendant  shall  be  equivalent  to 
personal  service  of  the  summons  upon  him. 
V»"hen  enacted  in  1872,  (1)  the  word  "is,"  in 
both  instances,  was  changed  from  "shall  be, 
and  (2)  the  last  sentence  was  changed  to  begin 
with  "The"  instead  of  "A." 

3.   Amended   by  Code  Amdts.  1873-74,  p.  299. 

Jurisdiction  of  the  parties.  A  judgment 
obtained  by  fraud,  or  rendered  by  a  court 
not  having  jurisdiction,  may  be  treated 
as  an  absolute  nullity  from  the  start.  Car- 
pentier  v.  Oakland,  30  Cal.  439.  Where 
the  defendant,  in  an  action  upon  a  domes- 
tic judgment,  was  not  served  with  sum- 
mons in  the  original  action,  evidence  to 
impeach  the  judgment  for  want  of  service 
is  admissible;  but  if  the  parties  stipulate 
that  there  was  no  service,  and  evidence  is 
admitted  to  that  effect,  without  objection, 
it  is  the  duty  of  the  court  to  declare  the 
judgment  void,  upon  the  admitted  facts. 
People  v.  Harrison,  107  Cal.  541;  40  Pac. 
956.  The  court  has  no  jurisdiction  to 
grant  relief  against  defendants,  without 
service  upon  them  of  a  cross-complaint 
filed  in  the  action,  although  they  made  de- 
fault. White  V.  Pattonj^S?  Cal.  151;  25 
Pac.  270.  Want  of  jurisdiction  may  be 
raised  at  any  time.  Hastings  v.  Cunning- 
ham, 39  Cal.  137;  Hahn  v.  Kelly,  34  Cal. 
391;  94  Am.  Dec.  742;  Pearson  v.  Pearson, 
46  Cal.  609;  People  v.  Thomas,  101  Cal. 
571;  36  Pac.  9.  Until  fraud  or  want  of 
jurisdiction  is  shown  in  the  proper  mode, 
and  according  to  the  proper  rules  of  evi- 
dence, a  judgment  obtained  by  fraud,  or 
rendered  by  a  court  not  having  jurisdic- 
tion, is  not  void;  for  it  has  the  form  and 
semblance  of  a  valid  judgment,  and  it  may 
be  enforced  as  such  until  reversed  or  set 
aside  by  some  proceedings.  Carpentier  v. 
Oakland,  30  Cal.  439.  The  power  of  a 
court  of  law  to  inquire  into  jurisdiction  is 
limited  to  an  inspection  of  the  record. 
Carpentier  v.  Oakland,  30  Cal.  439;  Hahn 
v.  Kellv,  34  Cal.  391;  94  Am.  Dec.  742; 
Hobbs  V.  Duff,  43  Cal.  485;  Hodgdon  v. 
Southern  Pacific  R.  R.  Co.,  75  Cal.  642;  17 
Pac.  928;  Hill  v.  City  Cab  etc.  Co.,  79  Cal. 
188;  21  Pac.  728;  Crim  v.  Kessing,  89 
Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  Colton  Land  etc.  Co.  v.  Swartz,  99 
Cal.  278;  33  Pac.  878;  Estate  of  Eichhoff, 
101  Cal.  600;  36  Pac.  11;  Butler  v.  Soule, 
124  Cal.  69;  56  Pac.  601;  People  v.  Perris 
Irrigation  Dist.,  132  Cal.  289;  64  Pac.  399, 
773.     The    presentations    of     a    false    affi- 


davit, for  the  purpose  of  obtaining  an  or- 
der for  service  of  summons  by  publication, 
is  an  act  of  fraud,  and  any  judgment 
which  rests  ujion  it  must  be  set  aside. 
Dunlap  V.  Steere,  92  Cal.  344;  27  Am.  St. 
Rep.  143;  16  L.  E.  A.  361;  28  Pac.  563. 
The  first  point  decided  by  any  court,  al- 
though it  may  not  be  in  terms,  is  that 
the  court  has  jurisdiction;  otherwise  it 
would  not  proceed  to  determine  the  rights 
of  the  parties.  Clary  v.  Hoagland,  6  Cal. 
685;  Coulter  v.  Stark,  7  Cal.  244.  In  suits 
in  personam,  in  courts  other  than  admi- 
ralty, no  man  can  be  deprived  of  his  prop- 
erty without  first  having  been  personally 
cited  to  appear  and  make  his  defense,  ex- 
cept by  virtue  of  some  positive  statutory 
enactment.  Loring  v.  Illsley,  1  Cal.  24; 
Parsons  v.  Davis,  3  Cal.  321;  Schloss  v. 
White,  16  Cal.  65;  Rowley  v.  Howard,  23 
Cal.  401;  Linott  v.  Rowland,  119  Cal.  452; 
51  Pac.  687;  Whitwell  v.  Barbier,  7  Cal. 
54;  Gray  v.  Hawes,  8  Cal.  562;  Sharp  v. 
Daugney,  33  Cal.  505.  The  fact  of  ser- 
vice is  material,  and  from  the  time  service 
is  made,  the  court  is  deemed  to  have  ac- 
quired jurisdiction;  the  return  of  service 
may  be  formal  or  informal,  perfect  or 
imperfect,  still,  if  it  is  in  fact  made,  the 
court  acquires  jurisdiction  of  the  person  of 
defendant,  and  the  judgment  thereafter 
rendered  cannot  be  attacked  collaterally. 
Drake  v.  Duvenick,  45  Cal.  455;  Sacra- 
mento Sav.  Bank  v.  Spencer,  53  Cal.  737; 
Kevbers  v.  McComber,  67  Cal.  395;  7  Pac. 
S3S;  Estate  of  Eichhoff,  101  Cal.  600;  36 
Pac.  11;  Herman  v.  Santee,  103  Cal.  519; 
42  Am.  St.  Rep.  145;  37  Pac.  509.  Juris- 
diction is  given,  in  this  state,  by  a  form 
of  notice  prescribed  by  statute,  which, 
in  such  cases,  must  be  substantially  pur- 
sued; and  where  a  general  power  of  serv- 
ing process  is  given  to  an  officer,  a  general 
return  of  service  is  sufficient,  but  where 
the  power  to  serve  process  is  exceptional 
and  given  only  on  prescribed  conditions 
there  the  authority  is  special,  and  the  par 
ticular  facts  must  be  shown,  in  order  to 
give  effect  to  the  service.  McMillan  v 
Reynolds,  11  Cal.  372;'  Sharp  v.  Daugney 
33  Cal.  505;  Linott  v.  Rowland,  119  Cal 
452;  51  Pac.  687.  It  is  immaterial  whether 
the  jurisdiction  of  the  court  appears  affirm 
atively  upon  the  judgment  roll  or  not,  for 
if  it  does  not,  it  will  be  conclusively  pre 
sumed.  Hahn  v.  Kelly,  34  Cal.  391;  94  Am 
Dec.  742;  Hobbs  v.  Duff,  43  Cal.  485;  But 
ler  v.  Soule,  124  Cal.  69;  56  Pac.  601 
People  V.  Perris  Irrigation  Dist.,  132  Cal. 
289;  64  Pac.  399,  773. 

Effect  of  iiregularities.  Presumptions  in 
favor  of  judgment.  Where  the  order  of 
service  by  publication  fails  to  direct  the 
summons   to    be    deposited    "forthwith"   ia 


319 


JURISDICTION  ACQUIRED  WHEN — PRESUMPTIONS. 


§416 


the  post-office,  but  the  summons  was  so 
deposited,  the  omission  of  the  word  "fortli- 
witli"  from  the  order  is  a  mere  irregu- 
laritj^,  which  might,  perhaps,  be  good  cause 
to  set  aside  the  proceedings  on  a  direct 
motion  for  that  purpose,  but  would  not 
afl'ect  the  judgment.  Anderson  v.  Goff, 
72  Cal.  65;  1  Am.  St.  Eep.  34;  13  Pac.  73. 
Where  service  is  made  by  publication  of 
summons  against  an  absent  defendant, 
a  personal  judgment  cannot  be  entered 
against  him.  Anderson  v.  Goff,  72  Cal.  65 
1  Am.  St.  Rep.  34;  13  Pac.  73;  Blumberg 
V.  Birch,  99  Cal.  416;  37  Am.  St.  Rep.  67 
34  Pac.  102;  De  la  Montanya  v.  De  la  Men 
tanva,  112  Cal.  101;  53  Am.  St.  Rep.  165 
32  L.  R.  A.  82;  44  Pac.  345.  The  jurisdic- 
tion of  all  our  courts  is  special  and  lim- 
ited, as  defined  by  the  constitution,  and 
they  do  not  proceed  according  to  the 
course  of  the  common  law,  but  according 
to  the  course  of  the  code,  which  prescribes, 
in  almost  every  particular,  a  course  very 
different  from  that  of  the  common  law. 
Hahn  v.  Kelly,  34  Cal.  391;  94  Am.  Dec. 
742.  Where  there  is  no  proof  in  the  record, 
of  what  was  done  in  obtaining  service, 
it  will  be  presumed  that  legal  service  was 
in  fact  made;  but  where  the  record  shows 
what  was  done  to  obtain  service,  it  cannot 
be  presumed  that  something  different  was 
in  fact  done.  Hahn  v.  Kelly,  34  Cal.  391; 
94  Am.  Dec.  742;  Latta  v.  Tutton,  122  Cal. 
279;  68  Am.  St.  Rep.  30;  54  Pac.  844. 
Unless  the  record  shows  to  the  contrary,  it 
will  be  presumed,  in  support  of  the  judg- 
ment, that  a  court  of  general  jurisdiction 
acquired  the  necessary  jurisdiction  over 
the  parties;  in  this  respect,  the  record 
cannot  be  impeached,  in  a  collateral  pro- 
ceeding, by  proof  aliunde.  Hahn  v.  Kelly, 
34  Cal.  391;  94  Am.  Dec.  742;  Sharp  v. 
Brunuings,  35  Cal.  528;  Reily  v.  Lancaster, 
39  Cal.  354,  356;  Eitel  v.  Foote,  39  Cal. 
439;  Branson  v.  Caruthers,  49  Cal.  374; 
McCauley  v.  Fulton,  44  Cal.  355.  The  pre- 
sumptions of  law  are  in  favor  of  the  juris- 
diction and  of  the  regularity  of  proceed- 
ings of  superior  courts,  or  courts  of  gen- 
eral jurisdiction,  but  they  are  not  in  favor 
of  the  jurisdiction  and  regularity  of  the 
proceedings  of  inferior  courts,  or  courts 
of  limited  jurisdiction,  and  parties  who 
claim  any  right  or  benefit  under  their  judg- 
ments must  show  their  jurisdiction  affirm- 
atively; the  only  limitation  put  upon  the 
rule  is  founded  upon  a  distinction  between 
courts.  Barrett  v.  Carney,  33  Cal.  530; 
Hahn  v.  Kelly,  34  Can.  391;  94  Am.  Dec. 
742;  Ryder  v.  Cohn,  37  Cal.  69;  Quivey 
V.  Porter,  37  Cal.  458;  Mahoney  v.  Mid- 
dleton,  41  Cal.  41;  McKinley  v.  Tuttle, 
42  Cal.  570;  Drake  v.  Duvenick,  45  Cal. 
455;  Wood  v.  Jordan,  125  Cal.  261;  57  Pac. 
997.  Upon  a  collateral  attack,  recitals, 
in  the  judgment,  of  service  upon  defend- 
ant, are  conclusive  of  the  question  of 
jurisdiction  of  his  person,  where  the  judg- 
ment is  rendered   by   a  court   of   superior 


jurisdiction.  McCauley  v.  Fulton,  44  Cal. 
355;  Drake  v.  Duvenick,  45  Cal.  455;  An- 
derson V.  Goff,  72  Cal.  65;  1  Am.  St.  Rep. 
34;  13  Pac.  73;  Estate  of  Newman,  75  Cal. 
213;  7  Am.  St.  Rep.  146;  16  Pac.  887.  The 
recitals  in  a  judgment  are  the  court's  rec- 
ord of  its  own  acts,  and  although,  upon  a 
direct  appeal,  the  juris<iiction  of  the  court 
is  not  to  be  established  by  its  mere  asser- 
tion, in  the  judgment,  that  it  acquired 
jurisdiction,  yet  if  such  recital  finds  sup- 
port in  other  portions  in  the  record,  which, 
under  any  condition  of  facts,  could  exist, 
it  will  be  presumed,  in  the  absence  of  a 
contrary  showing,  that  such  condition  of 
facts  existed.  Sichler  v.  Look,  93  Cal.  600; 
29  Pac.  220.  The  validity  of  a  tax  judg- 
ment is  to  be  ascertained  by  the  same 
tests,  has  the  benefit  of  the  same  presump- 
tions, is  subject  to  attack  in  the  same  mode 
and  by  the  same  means,  as  the  judgment 
in  an  action  of  any  other  class.  Eitel  v. 
Foote,  39  Cal.  439;  Mayo  v.  Haynie,  50  Cal. 
70;  Wood  V.  Jordan,  125  Cal.  261;  57  Pac. 
997;  People  v.  Perris  Irrigation  Dist.,  132 
Cal.  289;  64  Pac.  399,  773.  The  validity 
of  the  judgment  is  to  be  conclusively  pre- 
Bumed  from  the  existence  of  the  judgment 
itself,  unless  it  affirmatively  appears  from 
the  record  that  the  court  had  not  juris- 
diction. Hahn  v.  Kelly,  34  Cal.  391;  94  Am. 
Dec.  742.  The  summons  to  be  served  is 
any  legal  summons  issued  in  the  case;  and 
where  the  first  summons  has  been  returned 
not  served,  the  second  summons  is  the  one 
to  be  served  by  publication,  the  first  one 
having  no  longer  any  force.  Seaver  v. 
Fitzgerald,  23  Cal.  86.  A  summons  which 
does  not  comply  with  the  requirements  of 
law  will  not  support  a  judgment  by  de- 
fault. State  V.  Woodlief,  2  Cal.  241;  Por- 
ter V.  Hermann,  8  Cal.  619;  People  v.  Weil, 
53  Cal.  253.  Where  no  sv"immons  is  issued, 
and  no  service  made  until  four  years  after 
the  filing  of  the  complaint,  the  court  does 
not  obtain  jurisdiction.  Revnolds  v.  Page, 
35  Cal.  296.  There  is,  however,  a  very 
decided  distinction  between  want  of  juris- 
diction and  irregularity  in  procuring  juris- 
diction; the  true  test  in  such  cases  is, 
whether  the  omission  complained  of  is  of 
substance  or  of  form;  if  of  substance,  the 
judgment  is  a  nullity;  if  of  form,  only  an 
irregularity.  Whitwell  v.  Barbier,  7  Cal. 
54.  Irregularities  and  defects  in  the  sum- 
mons, or  in  the  service  or  return  thereof, 
are  immaterial,  when  the  defendant  ap- 
pears in  the  action.  Blackburn  v.  Bucks- 
port  etc.  R.  R.  Co.,  7  Cal.  App.  649;  95  Pac. 
668.  Upon  the  appearance  of  a  defendant, 
the  court  acquires  jurisdiction.  Hodgkin> 
V.  Dunham,  10  Cal.  App.  690;  103  Pac.  351. 
A  defective  statement  in  a  summons  does 
not  render  judgment  by  default,  after  per- 
sonal service,  susceptible  to  collateral  at- 
tack. Keybers  v.  McComber,  67  Cal.  395; 
7  Pac.  838;  Dore  v.  Doughertv,  72  Cal. 
232;  1  Am.  St.  Rep.  48;  73  Pac.  621;  People 
v.   Dodge,   104  Cal.  487;   38   Pac.   203.     In 


§416 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


320 


case  of  collateral  attack  upon  a  judgment 
for  lack  of  jurisdiction,  all  presumptions 
not  contradicted  by  or  inconsistent  with 
the  record  are  in  favor  of  the  correctness 
of  the  judgment;  the  main  difference  be- 
tween a  collateral  attack  and  a  direct  at- 
tack is,  that,  in  the  former,  the  record 
alone  can  be  inspected,  and  is  conclusively 
presumed  to  be  correct;  while  on  direct 
attack  the  true  facts  may  be  shown,  and 
thus  the  judgment  itself,  on  appeal,  may 
be  reversed  or  modified.  Lyons  v.  Eoach, 
84  Cal.  27;  23  Pac.  1026;  Sichler  v.  Look, 
93  Cal.  600;  29  Pac.  220;  Kahn  v.  Matthai, 
115  Cal.  689;  47  Pac.  698.  Where  the  ap- 
pearance is  general,  although  stated  to  be 
special,  it  must  be  considered  as  a  general 
appearance  in  the  case.  Thompson  v.  Al- 
ford,  128  Cal.  227;  60  Pac.  686.  Where  the 
court  acquires  jurisdiction  by  service  of 
its  process,  it  does  not  lose  it  by  neglect 
to  make  proof  of  such  service  a  matter 
of  record;  the  subsequent  amendment  of 
the  record,  by  supplying  such  proof,  will 
support  the  judgment.  Hibernia  Sav.  &  L. 
Soc.  V.  Matthai,  116  Cal.  424;  48  Pac.  370. 
And  if  judgment  is  prematurely  entered 
thereafter,  it  is  only  an  irregularity:  it 
will  not  be  set  aside,  unless  it  appears  that 
the  result  will  be  different  from  that  al- 
readv  reached.  California  Casket  Co.  v. 
McGinn,  10  Cal.  App.  5;  100  Pac.  1077, 
1079.  In  an  action  for  divorce,  the  court 
has  no  jurisdiction  to  award  alimony, 
where  the  defendant  was  not  in  the  state 
when  the  action  was  begun,  nor  afterwards 
made  any  appearance  in  the  action;  the 
court  has  jurisdiction,  iu  such  cases,  only 
to  decree  dissolution  of  the  marriage.  De 
la  Montanya  v.  De  la  Montauva,  112  Cal. 
101;  53  Am.  St.  Rep.  165;  32  L.  R.  A.  82; 
44  Pac.  345. 

When  jurisdiction  of  the  person  is  ac- 
quired. The  affidavit  for  service  by  pub- 
lication should  show  with  accuracy  the 
efforts  made  to  serve  the  defendant  with 
summons,  and  the  reason  why  such  service 
could  not  be  made.  Kahn  v.  Matthai,  115 
Cal.  689;  47  Pac.  698;  Rue  v.  Quinn,  137 
Cal.  651;  66  Pac.  216;  70  Pac.  732.  The 
affidavit  must  show  two  facts:  1.  The  ex- 
ercise of  due  diligence  to  find  the  defend- 
ant within  the  state;  and  2.  The  failure 
to  find  him,  after  due  diligence.  Rue  v. 
Quinn,  137  Cal.  651,  655;  66  Pac.  216;  70 
Pac.  732.  The  fact  of  service,  not  the 
proof  thereof,  gives  the  court  jurisdiction, 
and  it  has  authority  to  receive  an  amended 
affidavit  of  service  after  judgment,  and 
before  the  roll  is  made  up.  Estate  of  New- 
man, 75  Cal.  213;  7  Am.  St.  Rep.  146;  16 
Pac.  887;  Sichler  v.  Look,  93  Cal.  600;  29 
Pac.  220;  Herman  v.  Santee,  103  Cal.  519; 
42  Am.  St.  Rep.  145;  37  Pac.  509;  Bank  of 
Orland  v.  Dodson,  127  Cal.  208;  78  Am. 
St.  Rep.  42;  59  Pac.  584.  The  court  does 
not  acquire  jurisdiction,  by  constructive 
service  of  summons  by  publication  in  a 
foreclosure  suit,  to  enter  or  docket  a  per- 


sonal judgment  against  the  defendant  for 
any  deficiency  left  unpaid  by  the  proceeds 
of  the  sale.  Blumberg  v.  Birch,  99  Cal. 
416;  37  Am.  St.  Rep.  67;  34  Pac.  102;  Latta 
V.  Tutton,  122  Cal.  279;  68  Am.  St.  Rep. 
30;  54  Pac.  844.  The  return  need  not  show 
anything  not  required  by  the  statute. 
Williamson  v.  Cummings  Rock  Drill  Co., 
95  Cal.  652;  30  Pac.  762.  Where  the  affi- 
davit is  insufficient,  the  clerk  has  no  au- 
thority to  enter  default,  and  the  court  has 
no  jurisdiction  to  enter  judgment:  both 
default  and  judgment,  so  entered,  are  void. 
Herman  v.  Santee,  103  Cal.  519;  42  Am. 
St.  Rep.  145;  37  Pac.  509.  The  service 
of  the  summons  and  complaint  gives  the 
court  jurisdiction  in  personam  to  try  and 
determine  every  description  of  question, 
whether  dilatory  or  in  chief,  that  can  pos- 
sibly arise  in  the  action,  and  if  the  affi- 
davit showing  service  fails  to  show  that 
the  affiant  was  competent  at  the  date  of 
the  service,  it  is  but  an  irregularity,  to 
be  disposed  of  by  motion  to  quash,  or  by 
grant  of  further  time  to  answer,  or  to  be 
the  basis  of  a  motion  in  arrest,  or  for  a 
new  trial,  or  of  proceedings  in  error,  but 
it  does  not  show  a  want  of  jurisdiction. 
Peck  V.  Strauss,  33  Cal.  678;  Drake  v, 
Duvenick,  45  Cal.  455;  Ex  parte  Ah  Men, 
77  Cal.  198;  11  Am.  St.  Rep.  263;  19  Pac. 
380;  Meredith  v.  Santa  Clara  Mining 
Ass'n,  60  Cal.  617.  Defendants  not  served 
are  not  bound  by  the  judgment,  nor  are 
they  personally  liable  for  its  satisfaction; 
the  statute  provides  that  property  in 
which  they  are  jointly  interested  with 
other  defendants  may  be  taken  in  execu- 
tion to  satisfy  the  judgment.  Tay  v.  Haw- 
ley,  39  Cal.  93;  Stewart  v.  Spaulding,  72 
Cal.  264;  13  Pac.  661.  The  purpose  in 
effecting  service  of  summons  upon  a  de- 
fendant in  a  civil  action,  whether  personal 
or  merely  constructive,  is  to  acquire  that 
jurisdiction  of  his  person  which  is  or- 
dinarily indispensable  to  enable  the  court 
to  proceed  to  judgment;  and  if  such  ser- 
vice, of  the  one  character  or  the  other, 
is  effected  pursuant  to  the  provisions  of 
law,  in  a  case  where  the  subject-matter  is 
itself  one  cognizable  by  the  court  before 
which  the  defendant  is  cited  to  appear,  it 
results,  upon  general  principles,  that  the 
court  may  rightly  proceed  to  determine 
the  case,  and  that  its  judgment  cannot  be 
questioned  for  mere  lack  of  jurisdiction 
to  render  it.  People  v.  Bernal,  43  Cal.  385. 
Defendants,  by  pleading  to  the  merits  of 
the  case,  waive  any  objection  they  may 
have  to  defects  in  the  process  and  its  ser- 
vice. Desmond  v.  Superior  Court,  59  Cal. 
274;  Sears  v.  Starbird,  78  Cal.  225;  20  Pac. 
547.  The  presumption  of  service  by  de- 
livery to  the  defendant  personally  arises 
from  the  affidavit  that  the  affiant  "per- 
sonally served"  the  defendant.  Drake  v. 
Duvenick,  45  Cal.  455.  The  code  requires 
that  the  summons  shall  be  embodied  iu  the 
judgment    roll;    but,    where    absent   there- 


321 


JURISDICTION   ACQUIRED  WHEN APPEARANCE. 


§416 


from,  if  it  appears  that  it  was  in  fact 
issued,  that  it  was  sufticient  in  form,  ami 
that  it  was  duly  served,  a  sullieient  prima 
facie  showing  is  made  to  give  the  court 
jurisdiction  of  the  {>erson  of  defen<lant, 
and  to  support  the  judgment  upon  direct 
attack  by  api)eal.  Kahn  v.  Matthai.  115 
Cal.  6S9;  47  Pac.  698.  A  recital  in  the 
judgment  that  the  defendant  was  duly 
served  is  a  direct  adjudication  upon  the 
point,  and  is  as  conclusive  upon  the  par- 
ties as  any  other  fact  decided,  if  it  does 
not  appear  affirmatively,  from  other  por- 
tions of  the  record,  that  the  recital  is  un- 
true. Hahn  v.  Kelly,  34  Cal.  391;  94  Am. 
Dec.  742.  Where  the  defendant  was  never 
served,  the  court  never  acquired  juris<lic- 
tion  to  enter  judgment  against  him.  Bar- 
ney V.  Vigoureaux,  75  Cal.  376;  17  Pac. 
433.  Service  upon  the  attorney  in  fact  of 
the  defendant  is  not  service  upon  the  de- 
fendant, and  the  court  does  not  acquire 
jurisdiction  over  the  defendant.  Drake  v. 
Duvenick,  45  Cal.  455.  Where,  in  an  ac- 
tion in  a  justice's  court,  the  complaint  was 
filed  against  a  corporation,  and  the  return 
showed  service  of  summons,  addressed  to 
the  corporation,  upon  a  member  of  the 
corporation,  the  court  did  not  acquire  juris- 
diction over  the  defendant  cor})oration. 
King  V.  Randlett,  33  Cal.  318.  The  de- 
fendant is  presumed  to  be  a  resident  of 
the  county  wherein  he  is  served.  King  v. 
Blood,  41  Cal.  314. 

Voluntary  appearance.  Courts  will  not 
take  judicial  notice  of  the  signatures  of 
the  parties  to  the  cause:  when  proof  of 
service  consists  of  the  written  admission 
of  the  defendants,  such  admission,  to  be 
available,  should  be  accompanied  with 
some  evidence  of  the  genuineness  of  the 
signatures.  Alderson  v.  Bell,  9  Cal.  315. 
An  appearance  entered  by  the  attorney  of 
the  party,  whether  authorized  or  not,  is  a 
good  and  sufficient  appearance  to  bind  the 
party,  except  where  fraud  is  used,  or  the 
attorney  is  unable  to  respond  in  damages. 
Suydam  v.  Pitcher,  4  Cal.  280.  When^  at- 
torneys inadvertently  appear  and  answer 
for  all  the  defendants,  intending  to  appear 
and  answer  for  only  part  of  them,  and, 
upon  discovery  of  the  mistake,  the  answer 
and  appearance  are,  by  order  of  the  court, 
withdrawn,  the  court  has  no  jurisdiction, 
in  consequence  of  inadvertence.  Forbes  v. 
Hyde,  31  Cal.  342.  Although  no  summons 
is  issued,  the  authority  of  the  attorney 
"to  appear  will  be  presumed,  although  there 
is  no  evidence  of  such  authority,  if  noth- 
ing to  the  contrary  appears.  Suydam  v. 
Pitcher,  4  Cal.  280;  Turner  v.  Caruthers, 
17  Cal.  431;  Haves  v.  Shattuck,  21  Cal.  51; 
Ventura  County  v.  Clay,  119  Cal.  213;  51 
Pac.  189;  Pacific  Paving  Co.  v.  Vizelich, 
141  Cal.  4;  74  Pac.  352.  The  appearance 
of  a  licensed  attorney  and  counselor  is 
prima  facie  evidence  that  he  has  been 
retained  in  the  cause:  it  would  be  a  dan- 
1  Fair. — 21 


gerous  j)ractice  to  afTord  litigants  the  op- 
portunity to  avail  themselves  of,  or  to 
escape  from  the  judgments  of  courts  upon, 
such  a  plea.  Suydam  v.  Pitcher,  4  Cal. 
280;  Holmes  v.  Rogers,  13  Cal.  191;  Samp- 
son V.  Ohleyer,  22  Cal.  200.  A  special 
appearance  may  be  made  for  the  purpose 
of  quashing  the  summons  or  proof  of  ser- 
vice, but  a  demurrer  to  the  complaint  is 
a  submission  to  jurisdiction.  McDonald  v. 
Agnew,  122  Cal'.  448;  55  Pac.  125.  The 
appearance  of  the  defendant  after  judg- 
ment, to  move  to  dismiss  the  case,  does  not 
cure  the  fatal  defect  of  want  of  jurisdic- 
tion. Deidesheimer  v.  Brown,  8  Cal.  339. 
Where  a  party  is  not  brought  into  court, 
nor  does  he  come  in  and  thus  waive  the 
necessity  of  service,  the  court  has  no  juris- 
diction over  him,  and  a  judgment  against 
him  is  a  nullity.  Gray  v.  Hawes,  8  Cal. 
562.  Where  an  attorney  appears,  and  ob- 
jects only  because  the  court  has  not  ac- 
quired jurisdiction  of  the  person  of  the 
defendant,  the  appearance  is  special,  and 
no  statement  to  that  effect,  in  notice  or 
motion,  is  required,  or  can  have  any  effect 
if  made.  Security  Loan  etc.  Co.  v.  Boston 
etc.  Fruit  Co.,  126  Cal.  418;  58  Pac.  941; 
59  Pac.  296;  Thompson  v.  Alford,  128  Cal. 
227;  60  Pac.  686.  The  recital  of  appear- 
ance in  the  record  is  never  conclusive; 
and  where  the  expression  is  general,  it  is 
confined  to  those  parties  who  have  been 
served.  Chester  v.  Miller,  13  Cal.  558. 
Where  an  attorney  appears  for  a  defend- 
ant in  a  court  of  general  jurisdiction,  the 
court  thereby  acquires  jurisdiction  of  the 
person  of  the  defendant;  if  such  appear- 
ance was  without  authority,  that  fact  can- 
not be  shown,  as  a  defense  at  law,  in  a  suit 
upon  the  judgment:  the  defendant  is  left 
to  his  remedy  against  the  attorney  for 
damages  if  solvent,  or  to  his  remedy  in 
equity  if  insolvent.  Carpentier  v.  Oakland, 
30  Cal.  439.  Where  the  answer  has  the 
signature  of  the  attorney  of  record  and 
that  of  an  associate  attorney  attached  to 
it,  the  court  is  not  bound  to  determine 
whether  the  signature  of  the  attorney  of 
record  was  put  there  by  the  associate  with- 
out his  authority.  W^illson  v.  Cleaveland, 
30  Cal.  192.  Where  the  defendant  appears 
and  asks  some  relief  which  can  only  be 
granted  on  the  hypothesis  that  the  court 
has  jurisdiction  of  the  cause  and  of  his 
person,  a  special  appearance  is  converted 
into  a  general  one:  it  is  a  submission  to 
the  jurisdiction  of  the  court,  as  completely 
as  if  he  had  been  regularly  served  with 
process,  whether  such  an  apj)earance,  upon 
its  terms,  is  limited  to  a  special  appear- 
ance or  not.  Security  Loan  etc.  Co.  v. 
Boston  etc.  Fruit  Co.,  126  Cal.  41 S;  58 
Pac.  941;  59  Pac.  296;  Thompson  v.  Alford, 
128  Cal.  227;  60  Pac.  686.  It  is  the  char- 
acter of  the  relief  asked,  and  not  the  in- 
tention of  the  party  that  it  shall  or  shall 
not   constitute  a  general  appearance,  that 


§416 


MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


322 


is  material.  Securitv  Loan  etc.  Co.  v.  Bos- 
ton etc.  Fruit  Co./l26  Cal.  418;  58  Pac. 
941 J  59  Pac.  296.  The  voluntary  appear- 
ance of  the  defemlant  is  equivalent  to  per- 
sonal service  of  summons  and  a  copy  of  the 
complaint  upon  him,  and  an  appearance 
without  being  summoned  confers  jurisdic- 
tion equally  with  appearance  after  being 
summoned;  under  our  practice,  a  person 
who  is  not  named  in  the  complaint  nor 
served  with  summons,  and  who  is  inter- 
ested in  the  matter  in  litigation,  may  be- 
come a  party  by  obtaining  leave  to  file  a 
complaint  in  intervention.  Tyrrell  v.  Bald- 
win, 67  Cal.  1;  6  Pac.  867.  Jurisdiction 
of  the  persons  of  original  defendants  may 
be  acquired  by  the  service  of  the  summons 
or  b}'  their  voluntary  appearance:  what- 
ever jurisdiction  is  acquired  by  service  is 
therefore  acquired  by  voluntary  appear- 
ance. Hibernia  Sav.  &  L.  Soc.  v;  Cochran, 
141  Cal.  653;  75  Pac.  315.  Putting  in  an 
answer  is  an  appearance,  and  such  appear- 
ance is  a  waiver  of  the  mere  formality  of 
the  issuing  of  the  summons:  the  only  pur- 
pose of  the  summons  is  to  bring  the  de- 
fendant into  court.  Hayes  v,  Shattuck,  21 
Cal.  51;  Shay  v.  Superior  Court,  57  Cal. 
541.  Where  the  complaint  is  filed,  and  the 
attorneys  for  the  defendant  appear  for 
him,  and  file  a  notice,  "We  have  been  re- 
tained by  and  hereby  appear  for  the  above- 
named  defendant  in  the  above-entitled 
action,"  the  court  thereby  acquires  juris- 
diction of  the  defendant,  although  no  sum- 
mons is  issued.  Dyer  v.  North,  44  Cal.  157. 
Where  the  court  has  jurisdiction  of  the 
subject-matter,  and  all  the  parties  are  be- 
fore it,  the  filing  of  a  cross-complaint, 
ordered  by  the  court,  does  not  affect  its 
jurisdiction.  Hansen  v.  Wagner,  133  Cal. 
69;  65  Pac.  142.  The  voluntary  appear- 
ance of  a  defendant,  by  his  attorney,  is 
equivalent  to  personal  service  of  the  sum- 
mons and  complaint.  Western  Lumber  etc. 
Co.  V.  Merchants'  Amusement  Co.,  13  Cal. 
App.  4;  108  Pac.  891. 

CODE  COMMISSIONERS' NOTE.     1.  When  the 

court  acquires  jurisdiction.  In  order  to  give  a 
court  jurisdiction  of  the  subject-matter,  so  as  to 
enable  it  to  issue  orders  or  process,  it  is  neces- 
sary that  the  action  should  be  commenced  as  pre- 
scribed by  §  405,  ante.  Ex  parte  Cohen,  6  Cal. 
320. 

2.  Appearance  defined.    See  §  1014,  post. 

3.  Voluntary  appearance  of  defendant.  The 
only  object  of  a  summons  is  to  bring  a  party  into 
court;   and  if  that  object  be  attained  by  the  ap- 


pearance and  pleading  of  a  party,  there  can  be 
no  injury  to  him.  Smith  v.  Curtis,  7  Cal.  587. 
And  if  no  summons  was  issued,  and  yet  the  de- 
fendant appears,  the  court  by  his  appearance  ac- 
quired jurisdiction.  Hayes  v.  Shattuck,  lil  Cal. 
54.  A  voluntary  appearance  is  sufficient  to  con- 
fer jurisdiction.  See  Mahlstadt  v.  Blanc,  34  Cal. 
577. 

4.  Appearance  by  attorney.  An  appearance  en- 
tered by  attorney,  vyhether  authorized  or  not,  was 
held  a  good  and  sufficient  appearance  to  bind  the 
party,  except  in  those  cases  where  fraud  has  been 
used,  or  it  is  shown  the  attorney  is  unable  to 
respond  to  damages.  An  appearance  by  attorney 
at  common  law,  and  by  the  express  letter  of  our 
statute,  amounts  to  an  acknowledgment  or  waiver 
of  service.  Suydam  v.  Pitcher,  4  Cal.  280.  And 
the  authority  of  an  attorney  to  appear  is  pre- 
sumed. Suydam  v.  Pitcher,  4  Cal.  280;  Hayes 
V.  Shattuck,  21  Cal.  54;  see  also  Carpentier  v. 
Oakland,  30  Cal.  439. 

5.  Appearance  by  attorney.  Attorney  has  man- 
agement of  case.  A  party  to  an  action  may  ap- 
pear in  his  own  proper  person,  or  by  attorney, 
but  he  cannot  do  both.  If  he  appears  by  attor- 
ney, he  must  be  heard  through  him,  and  such  at- 
torney has  the  management  and  control  of  the 
action.  Board  of  Commissioners  v.  Younger,  29 
Cal.   149;    87   Am.  Dec.   164. 

6.  Appearance  by  mistake  of  attorney.  Where 
an  attorney  only  authorized  to  appear  for  a  few 
of  several  defendants  inadvertently  files  an  an- 
swer for  all,  and  discovering  the  mistake  obtains 
an  order  to  withdraw  his  answer  and  file  a  new 
one  limited  to  the  defendants  for  whom  he  in- 
tended to  answer,  the  court  has  jurisdiction  only 
of  those  defendants  for  whom  the  attorney  finally 
appears.     Forbes   v.   Hyde,   31    Cal.    346. 

7.  Genuineness  of  signature  of  attorney  of  rec- 
ord. If  the  signature  of  the  attorney  of  record, 
and  that  of  an  associate  attorney  is  affixed  to  the 
pleadings,  the  court  will  not  strike  it  out.  The 
court  will  not  try  the  question,  whether  the 
signature  of  the  attorney  of  record  was  genuine 
or  put  there  by  his  associate  without  his  au- 
thority.   Wilson  V.  Cleaveland,   30  Cal.  200. 

8.  Defendant  served  with  process,  but  not 
given  statutory  time  for  appearance.  In  case 
that  the  defendant,  although  served  with  process, 
was  not  given  the  time  allowed  by  statute  to  ap- 
pear and  answer,  this  would  be  good  reason  in 
the  court  below  to  have  quashed  the  writ  upon 
motion  by  amicus  curiae,  or  for  extension  of  time 
to  appear  and  answer  on  motion  of  defendant; 
it  would  have  been  a  good  objection  also  on  er- 
ror, arrest  of  judgment,  or  motion  for  a  new 
trial,  but  the  defendant  having  been  summoned 
to  appear  on  a  day  certain,  it  cannot  be  said  that 
the  court  had  no  jurisdiction  of  the  person,  so  as 
to  render  its  judgment  a  nullity.  Whitwell  v. 
Barbier,  7  Cal.  64. 

9.  Defendant  must  have  been  cited  to  appear, 
before  judgment  can  be  entered  against  him.  In 
suits  in  personam  in  courts  other  than  admiralty 
courts,  no  man  can  be  deprived  of  his  property 
without  having  been  first  personally  cited  to  ap- 
pear and  make  his  defense,  unless  by  virtue  of 
some  positive  statutory  enactment.  Loring  v. 
Illsley,   1  Cal.  29. 

10.  Judgment  cannot  be  sustained  if  defend- 
ant was  not  served  and  did  not  appear.  See  opin- 
ion in  case  of  Hawkins  t.  Abbott,  40  Cal.  640. 


323 


PLEADINGS — DEFINITIJNS — FORMS  AND  RULES. 


§§420,421 


TITLE  VI. 
PLEADINGS  IN  CIVIL  ACTIONS. 

Chapter  I.  Pleadings  in  General.     §§  420-422. 

11.  Complaint.     §§  425-427. 

III.  Demurrer  to  Complaint.     §§  430-434. 

IV.  Answer.     §§  437-442. 

V.  Demurrer  to  Answer.     §§  443,  444. 

VI.  Verification  of  Pleadings.     §§  446-449. 

VII.  General  Rules  of  Pleading.     §§  4.52-465. 

VIII.  Variance.     Mistakes  in   Pleadings   and   Amendments. 


§§469-476, 


CHAPTER  I. 

PLEADINGS  IN  GENERAL. 


§  420.    Definition  of  pleadings. 

§  421.     This   code   prescribes   tlie    form   and   rules 


of  pleadings. 
§  422.     What  pleadings   are  allowed. 


§  420.     Definition  of  pleadings.     The  pleadings  are  the  formal  allegations 

by  the  parties  of  their  respective  claims  and  defenses,  for  the  judgment  of 

the  court. 

and  also  a  petition  for  letters  of  admin- 
istration. Duff  V.  Duff,  71  Cal.  513;  12 
Pac.  570.  While  the  word  "practice"  in- 
cludes all  "pleadings,"  yet  "pleadings" 
never  includes  all  "practice."  People  v. 
Central  Pacific  R.  R.  Co.,  83  Cal.  393;  23 
Pac.  303. 


CODE   COMMISSIONERS'  NOTE.      As  to  par- 
ties intervening,  see  §  387,  ante. 


Legislation  §  420.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,  §  36. 

Pleadings  or  formal  allegations.  The 
term  "pleading"  includes  a  sworn  petition, 
complaint,  or  affidavit,  without  regard  to 
what  it  may  be  termed,  upon  which  an 
order  to  show  cause  is  made  (California 
Title  Ins.  etc.  Co.  v.  Consolidated  Pied- 
mont Cable  Co.,  117  Cal.  237;  49  Pac.  1; 
Duff  V.    Duff,    71    Cal.   513;    12   Pac.   570), 

§  421.  This  code  prescribes  the  form  and  rules  of  pleadings.  The  forms 
of  pleading  in  civil  actions,  and  the  rules  by  which  the  sufficiency  of  the 
pleadings  is  to  be  determined,  are  those  prescribed  in  this  code. 

no  longer  exist.  Bowen  v.  Aubrey,  22  Cal. 
566.  There  is  only  one  form  of  action  in 
this  state:  it  has  no  name,  and  no  action 
can    be    defeated     because     not     properly 


One  form  of  action.    Ante,  §  307. 
Rules    of    pleading,    generally.       Post,    §§    452 
et  seq. 

Legislation  §  421.  Enacted  March  11,  1873; 
based  un  Practice  Act,  §  37  (New  York  Code, 
§  140),  which  read:  "All  the  forms  of  pleadings 
in  civil  actions,  and  the  rules  by  which  the  suf- 
ficiency of  the  pleadings  shall  be  determined, 
shall  be  those  prescribed  in  this  act." 

Rules  prescribed  by  the  code.  The  words 
"this  code,"  in  this  section,  refer  to  the 
Code  of  Civil  Procedure.  People  v.  Central 
Pacific  R.  R.  Co.,  S3  Cal.  393;  23  Pac.  303. 
The  character  and  sufficiency  of  a  pleading 
will  be  determined  by  the  court  from  the 
facts  alleged  in  it.  McDougald  v.  Hulet, 
132  Cal.  154;  64  Pac.  278.  It  is  not  what 
a  pleading  is  called,  but  the  facts  which 
it  sets  up,  that  determines  its  character. 
McDougald  v.  Hulet,  132  Cal.  154;  64  Pac. 
278. 

Forms  of  actions  abolished.  Under  the 
code,  we  have  but  one  system  of  rules 
respecting  pleadings,  which  governs  all 
cases,  both  actions  at  law  and  suits  in 
equity:  the  former  distinctions  between 
common-law  pleading  and  equity  pleading 


named.  Faulkner  v.  First  Nat.  Bank,  130 
Cal.  258;  62  Pac.  463.  All  actions  are  now, 
in  effect,  special  actions  on  the  case. 
Rogers  v.  Duhart,  97  Cal.  500,  505;  32  Pac. 
570.  It  was  the  design  of  the  framers  of 
the  new  system  to  make  the  pleadings  con- 
form, so  far  as  possible,  to  the  old  chan- 
cery, rather  than  to  the  common-law, 
forms,  for  the  obvious  reason  that  the 
chancery  forms  are  better  adapted  to  the 
new  system,  which  requires  the  pleader  to 
state,  in  ordinary  and  concise  language, 
the  facts  constituting  his  cause  of  action 
or  defense.  Brown  v.  Martin,  25  Cal.  82; 
Johnson  v.  Polhemus,  99  Cal.  240;  33  Pac. 
908.  The  common-law  system  of  pro- 
cedure has  been  abolished,  with  a  view  to 
the  removal  of  all  stumbling-blocks,  and 
to  substitute  simplicity  and  directness  for 
complexity  and  circuity  of  action.  Kim- 
ball V.  Lohmas.  31  Cal.  154.  The  com- 
plaint now  merely  consists  of  a  statement 


§422 


PLEADINGS   IN    GENERAL. 


324 


of  the  facts  constituting  the  cause  of  ac- 
tion, in  ordinary  and  concise  language 
(Wright  V.  Superior  Court,  139  Cal.  469; 
73  Pac.  145);  but  the  defendant  may  set 
out  the  statement  in  two  separate  forms, 
where  there  is  a  doubt  as  to  his  ability 
safely  to  plead  the  case  in  one  mode  only. 
Wilson  V.  Smith,  61  Cal.  209.  While  the 
distinctions  in  the  form  of  actions  ex 
delicto  and  ex  contractu  are  abolished,  and 
one  form  of  action,  only,  is  substituted,  yet 
the  principles  of  law  which  govern  such 
actions  are  retained.  Lubert  v.  Chauvi- 
teau,  3  Cal.  4.58;  58  Am.  Dec.  415.  Relief 
is  administered  without  reference  to  the 
technical  and  artificial  rules  of  the  com- 
mon law  upon  this  subject,  and  the  only 
restrictions  upon  the  pleader,  in  respect  to 
stating  the  different  causes  of  action  in 
the  same  complaint,  are  those  imposed  by 
statute.  Jones  v.  Steamship  Cortes,  17 
Cal.  487;  79  Am.  Dec.  142.  In  an  action 
for  the  conversion  of  personal  propert3^  it 
is  immaterial  in  which  mode  the  plaintiff 
seeks  redress;  he  may  waive  the  tort  and 
sue  in  assumpsit;  whether  he  claims  in 
assumpsit,  as  upon  a  sale,  or  for  the  value 
of  the  goods,  as  by  conversion,  he  can 
establish  only  a  pecuniary  obligation, 
which  the  defendant  may  controvert  by 
any  facts  connected  with  the  transaction 
out  of  which  the  plaintiff's  claim  arose. 
Story  etc.  Commercial  Co.  v.  Story,  100 
Cal.  30;  34  Pac.  671.  It  is  error  to  sup- 
pose, that,  because  the  statute  abolishes 
the  distinctions  in  the  form  of  actions, 
it  is  immaterial  what  the  substantial  alle- 


gations of  pleadings  are,  or  that  all  the 
distinctions  which  the  law  makes  in  causes 
of  action  are  swept  away.  Sampson  v. 
Shaeffer,  3  Cal.  196;  Miller  v.  Van  Tassel, 
24  Cal.  459;  Story  etc.  Commercial  Co.  v. 
Story,  100  Cal.  30;  34  Pac.  671;  Marsteller 
V.  Leavitt,  130  Cal.  149;  62  Pac.  384. 
While  the  mere  forms  of  pleadings  are 
simplified,  yet  the  body  of  the  law  is  pre- 
served, with  those  general  principles  and 
unerring  rules,  those  sound  and  logical 
conclusions,  which  constitute  its  justice 
and  justify  its  glorv  as  a  science.  Samp- 
son V.  Shaeffer,  3  'Cal.  196.  Where  the 
allegations  in  the  complaint  were  not  sup- 
ported by  the  evidence,  because  the  plain- 
tiff had  mistaken  his  form  of  action,  yet, 
his  remedy  being  in  contract  and  not  in 
tort,  such  a  variance,  under  the  former 
practice,  was  ground  for  reversal.  Butler 
V.  Collins,  11  Cal.  391.  The  statute  makes 
no  distinction  between  the  rules  of  plead- 
ing applicable  to  natural  persons  and  those 
applicable  to  artificial  persons:  it  does  not 
give  one  rule  to  determine  the  effect  of  a 
I^leading  when  the  defendant  is  an  indi- 
vidual, and  another  and  different  rule 
when  the  defendant  is  a  corporation.  San 
Francisco  Gas  Co.  v.  San  Francisco,  9  Cal. 
453. 

CODE  COMMISSIONERS'  NOTE.  Under  the 
code,  we  have  but  one  system  of  rules  respecting 
pleadings,  which  s;overn  all  cases,  both  at  law 
and  in  equity.  Bowen  v.  Aubrey,  22  Cal.  569; 
Payne  v.  Treadwell,  16  Cal.  243:  see  also  East- 
erly V.  Bassig:nano,  20  Cal.  489:  Goodwin  v. 
Hammond,  13  Cal.  169;  73  Am.  Dec.  574;  Riddle 
V.  Baker.  13  Cal.  302;  Piercy  v.  Sabin,  10  Cal. 
27;   70  Am.  Dec.  692. 


§  422.     What  pleadings  are  allowed.     The  only  pleadings  allowed  on  the 
part  of  the  plaintiff  are : 

1.  The  complaint ; 

2.  The  demurrer  to  the  answer ; 

3.  The  demurrer  to  the  cross-complaint; 

4.  The  answer  to  the  cross-complaint. 
And  on  the  part  of  the  defendant : 

1.  The  demurrer  to  the  complaint ; 

2.  The  answer; 

3.  The  cross-complaint; 

4.  The  demurrer  to  the  answer  to  the  cross-complaint. 

defendant,  or  his  or  their  attorney  thereto,  shall 
be  served  with  a  copy  thereof,  and  shall  have 
the  same  time  thereafter  to  plead  thereto  that   is 


Legislation  §  422.  1.  Enacted  March  11,  1873  ; 
based  on  Practice  Act,  §  38,  as  amended  by 
Stats.  186.5-66,  p.  701,  which  read:  "The  plead- 
ings on  the  part  of  the  plaintiff  shall  be  the 
complaint  or  deninrrer  to  the  defendant's  answer; 
the  pleadings  on  the  part  of  the  defendant  to  the 
original  complaint  or  cross-complaint  of  a  co- 
defendant  shall  be  the  demurrer  or  answer. 
When  a  defendant  is  entitled  to  relief  as  against 
the  plaintiff  alone,  or  against  the  plaintiff  and  a 
co-defendant,  he  may  make  a  separate  statement 
in  his  answer  of  the  necessary  facts,  with  a 
prayer  for  the  relief  sought,  instead  of  bringing 
a  distinct  cross-action.  All  pleadings  subsequent 
to  the  original  complaint  shall  be  filed  with  the 
clerk,  and  a  copy  thereof  served  on  the  adverse 
party  or  his  attorney,  if  the  adverse  party  or  his 
attorney  live  within  the  county  where  the  action 
is  pending;  provided,  that  when  the  answer  con- 
tains   a    cross-complaint,    the    parties    plaintiff    or 


allowed  for  pleading  to  the  original  complaint 
after  service  of  the  summons."  Wj^ien  enacted 
in  1872,  §  422  read  as  at  present,  except  that 
it  did  not  contain  subds.  3,  4,  in  either  place. 

2.  Amendment  by  Stats.  1901,  p.  132;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Code   Amdts.   1907,  p.  705. 

The  only  pleadings  allowed.  The  only 
pleadings  allowed  are  prescribed  in  this 
section.  Estate  of  Wooten,  56  Cal.  322; 
People  V.  Superior  Court,  114  Cal.  466;  46 
Pac.  383.  A  replication  has  no  place  under 
our  system  of  pleading  (Moore  v.  Copp, 
119   Cal.  429;   51   Pac.   630);   and  dilatory 


325 


COMPLAINT — IS    FIRST   PLEADING — CONTENTS. 


§§425,426 


pleas  are  made  causes  of  demurrer  (Brown 
V.  Martin,  25  Cal.  82) ;  and  a  eross-com- 
plaint  is  a  pleading  on  the  part  of  the  de- 
fendant. Wood  V.  Johnston,  8  Cal.  App. 
258;   96  Pac.  508. 

CODE  COMMISSIONERS'  NOTE.  In  their 
report  to  the  lefrislaturc,  the  commissioners  say: 
"\Ve  have  been  urged  to  restore  the  "reply,"  and 
the  arguments  in  favor  of  its  restoration  are  con- 
vincing. Were  we  making  the  law,  instead  of 
drafting  a  bill  to  be  passed  upon  by  the  lawmak- 


ing  power,  we  would  feel  no  hesitation  whatever 
as  to  our  course.  The  "reply"  once  formed  a  part 
of  our  system  of  pleading,  and  after  a  short  trial 
it  was  abandoned.  Were  we  to  restore  it,  we 
would  be  met  with  this  fact  as  an  objection. 
After  careful  consideration  we  have  determined 
not  to  move  in  the  premises.  The  "cross-com- 
plaint" has  been  omitted,  for  we  think  it  may  be 
safely  said  that  no  member  of  the  profession  has 
ever  found  any  use  for  it.  Nothing  can  bo  brought 
into  a  case  by  "cross-complaint"  that  could  not, 
under  our  system,  be  brought  in  by  answer." 


CHAPTER  II. 

COMPLAINT. 


S  426a.  Statement  of  facts  in  divorce  complaint. 
§  427.     What  causes  of   action   may  be  joined. 

The  first  pleading  on  the  part  of  the 


§  425.    Complaint,  first  pleading. 
§  426.     Complaint,  what  to  contain. 

§  425.     Complaint,  first  pleading. 

plaintiff  is  the  complaint. 

Legislation  §  425.      Enacted   March   11,    1873. 

§  426.     Complaint,  what  to  contain.     The  complaint  must  contain : 

1.  The  title  of  the  action,  the  name  of  the  court  and  county  in  which  the 
action  is  brought,  and  the  names  of  the  parties  to  the  action ; 

2.  A  statement  of  the  facts  constituting  the  cause  of  action,  in  ordinary 
and  concise  language; 

3.  A  demand  of  the  relief  Avhieh  the  plaintiff  claims.     If  the  recovery  of 
money  or  damages  be  demanded,  the  amount  thereof  must  be  stated. 

Title.   Papers  defectively  entitled.   Post,  §  I04ti.       tainty  and  ambiguity  should  be  sustained. 

■Hawley  Bros.  Hardware  Co.  v.  Brown- 
stone,  123  Cal.  643;  56  Pac.  468.  A  mis- 
take in  the  designation  of  the  court,  how- 
ever, is  not  such  irregularity  as  will  affect 
substantial  rights,  and  mav  be  disregarded. 
Ex  parte  Fil  Ki,  79  Cal.  584;  21  Pac.  974. 
Statement  of  cause  of  action.  The 
"cause  of  action"'  is  a  present,  subsisting 
cause  of  action,  entitling  the  plaintiff  to 
judgment,  at  the  time  the  action  is  com- 
menced. Hentsch  v.  Porter,  10  Cal.  555. 
A  complaint,  to  be  good,  must  show  a 
cause  of  action  in  favor  of*  the  plaintiff 
and  against  the  defendant,  existing  at  the 
time  the  action  is  commenced.  Affierbaeh 
V.  McGovern,  79  Cal.  268;  21  Pac.  837. 
Where  only  the-  facts  constituting  the 
cause  of  action  are  to  be  alleged,  under 
the  code,  it  is  not  requisite  to  aver  cither 
the  consideration  or  the  promise,  when  lia- 
bility is  implied  from  the  facts  alleged. 
McFarland  v.  Holcomb,  123  Cal.  84;  55 
Pac.  761.  The  complaint  should  state  ex- 
pressly and  in  direct  terms  the  facts  con- 
stituting the  cause  of  action;  inference, 
argument,  and  hypothesis  are  not  per- 
mitted. .Joseph  V.  Holt,  37  Cal.  250;  Green 
v.  Palmer.  15  Cal.  411;  76  Am.  Dee.  492; 
Hibernia  Sav.  &  L.  Soc.  v.  Thornton,  117 
Cal.  481;  49  Pac.  573.  Argumentative 
pleading  is  not  permissible  under  the  code, 
any  more  than  it  was  at  common  law. 
Burkett  v.  Griffith,  90  Cal.  532;  25  Am. 
St.  Rep.  151;  13  L.  R.  A.  707;  27  Pac.  527. 
Where   the   facts   stated   in   the   complaint 


Venue.     Ante,  §§  392-4U0. 

Parties.     Ante,  §§  367-390. 

Parties,  misjoinder  or  non-joinder.    Post,  §  430. 

Association  may  be  sued  under  common  name. 
Ante,  §  388. 

Intervention.    Ante,  §  387. 

Pictitious  names  for  defendants.    Post,  §  474. 

Abbreviations   and  numerals.    Ante,  §  186. 

Construction  of  pleadings  to  be  liberal.  Post, 
§452. 

Errors  and  defects  to  be  disregarded.  Post, 
§  475. 

Material  allegations,  not  controverted,  taken 
as  true.     Post,  §  462. 

Service  of  complaint.     Ante,  §  410. 

Several  causes   of   action,   uniting.    Post,  §  427. 

Pleading,  in  particular  cases.    See  specific  title. 

Amendment. 

1.  Of  pleadings.     Post,  §§  472,  473. 

2.  Of  complaint.     Post,  §  432. 

Effect  of  setting  out  written  instrument,  if 
genuineness  not  denied  on  oath.    Post,  §§  447-449. 

Variance.     Post.  §§  469  et  seq. 

Gold  coin,  allegations  to  obtain  judgment  in. 
Post,  §  G67. 

Supplemental  complaint.     Post,  §  464. 

Verification  of  pleadings.    Post,  §  446. 

Legislation  §  426.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  39  (New  York  Code, 
§142).  When  enacted  in  1872,  (1)  in  the  in- 
troductory paragraph,  "'must'"  was  changed  from 
"shall";  (2-)  in  subd.  1,  (a)  "specifying"  was 
omitted  before  "the  name,'"  (b)  the  words  "the 
name  of""  were  omitted  before  "county,"  (c)  and 
the  words  "plaintiff  and  defendant"  were  omitted 
at  the  end  of  the  subdivision;  (3)  in  subd.  3, 
"must"   was   changed   from   "shall." 

The  title  of  the  action.  The  caption  is 
no  part  of  the  com.plaint,  unless  referred  to 
by  appropriate  allegations  in  the  body 
thereof;  but  where  the  caption  of  the  com- 
plaint conflicts  with  the  facts  stated  in 
the   body   thereof,   a   demurrer   for   uncer- 


§426 


COMPLAINT. 


32fi 


are  substantially  those  required  to  sup- 
Ijort  a  particular  coramou-iaw  action,  the 
principles  of  pleading  and  practice  which 
apply  to  such  commou  law  action  are  ap- 
plicable to  the  facts  pleaded.  Faulkner  v. 
First  Nat.  Bank,  1.30  Cal.  258;  62  Pac.  463. 
The  complaint  should  be  founded  upon  the 
theory  under  which  the  plaintiff  is  en- 
titled to  recover,  and  should  state  all  the 
facts  essential  to  support  that  theory; 
failing  in  these  respects,  it  is  radically 
defective,  and  docs  not  state  facts  sufli- 
cient  to  constitute  a  cause  of  action. 
Buena  Vista  Fruit  etc.  Co.  v.  Tuohy,  107 
Cal.  243;  40  Pac.  386.  The  cause  of  ac- 
tion is  made  up  of  facts  upon  which  the 
plaintiff's  right  to  sue  is  based,  and  upon 
Tvhich  the  defendant's  duty  has  arisen, 
coupled  with  facts  which  constitute  the 
latter's  wrong.  Hutchinson  v.  Aiusworth, 
73  Cal.  452;  2  Am.  St.  Eep.  823;  15  Pac. 
82.  Evidence  of  facts,  or  stipulations  as 
to  the  facts  of  the  case,  cannot  make  a 
case  broader  than  it  appears  from  the 
allegations  of  the  pleadings,  nor  do  they 
entitle  a  party  to  any  relief  beyond  that 
to  which  he  is  entitled  by  the  averments. 
Hicks  V.  Murray,  43  Cal.  515.  The  facts 
set  up  in  the  pleading  determine  its  char- 
acter and  sufKcienev.  McDougald  v. 
Hulet,  132  Cal.  154;  64  Pac.  278. 

Ordinary  and  concise  language.  The 
ultimate,  and  not  the  probative,  facts  are 
to  be  alleged  in  a  pleading  (McCaughey 
V.  Schuette,  117  Cal.  223;  59  Am.  St.  Rep. 
176;  46  Pac.  666;  48  Pac.  1088);  and  words 
should  be  given  their  ordinary  meaning, 
unless  modified  by  the  context.  Christen- 
sen  v.  Cram,  156  Cal.  633;  105  Pac.  950. 
The  defendant  is  entitled  to  a  distinct 
statement  of  the  facts  asserted  by  the 
])laintiff  to  exist:  alternative  allegations 
are  not  permitted.  Jamison  v.  Kino-,  50 
Cal.  132.  A  complaint,  to  be  suflScient, 
must  contain  a  statement  of  facts  which, 
without  the  aid  of  conjectured  facts  not 
stated,  show's  a  complete  cause  of  action. 
Going  V.  Dinwiddle,  86  Cal.  633;  25  Pac. 
129.  In  pleading,  the  essential  facts,  ui^on 
which  the  legal  points  in  the  controversy 
depend,  should  be  stated  with  clearness 
and  precision,  so  that  nothing  is  left  for 
the  court  to  surmise.  Gates  v.  Lane,  44 
Cal.  392.  This  section  contemplates  the 
English  language;  a  foreign  language  is 
not  "ordinary  language,"  within  the  mean- 
ing of  that  provision.  Stevens  v.  Ko- 
bayshi,  20  Cal.  App.  153;  128  Pac.  419. 
It  is  sufficient  to  state  in  ordinary  and 
concise  language  the  facts  constituting  the 
cause  of  action:  if  the  defendant  desires 
further  particulars,  he  may  call  for  them, 
and  they  must  be  given  to  him  within  a 
reasonable  time.  Avdelotte  v.  Bloom,  13 
Cal.    App.  56;    108   Pac.   877. 

Sufficiency  of  facts.  Every  fact  which  a 
plaintiff  will  be  called  upon  to  prove  at 
the  trial  must  be  averred  in  his  com{>laint. 
Henke    v.    Eureka    Endowment    Ass'n,    100 


Cal.  429;  34  Pac.  1089.  Where  a  com- 
plaint sets  forth  a  number  of  causes  of 
action,  in  separate  counts,  a  general  de- 
murrer interposed  to  the  complaint,  as  a 
whole,  will  not  be  sustained,  if  any  single 
count  states  facts  sufficient  to  constitute  a 
cause  of  action.  Krieger  v.  Feeny,  14  Cal. 
App.  538;  112  Pac.  901.  Though  "the  aver- 
ments of  a  complaint  do  not  involve  the 
statement  of  an  express  promise  to  pay  a 
stipulated  sum  for  merchandise  furnished, 
3'et  they  may  still  be  sufficient  to  entitle 
the  plaintiff  to  a  judgment  for  whatever 
the  evidence  may  disclose  that  the  mer- 
chandise is  reasonably  worth.  Krieger  v. 
Feeny,  14  Cal.  App.  538;  112  Pac.  901. 
In  an  action  by  a  vendor  to  recover  dam- 
ages for  the  breach  of  a  contract  for  the 
sale  and  purchase  of  real  estate,  where  the 
vendor  agreed  to  put  the  vendee  in  pos- 
session, allegations,  in  the  complaint,  of 
contemporaneous  oral  understandings,  do 
not  excuse  the  necessity  of  an  allegation 
of  actual  delivery  of  possession  by  the 
vendor.  Pierce  v.  Edwards,  150  Cal.  650; 
89  Pac.  600.  A  complaint  in  an  action 
upon  a  note,  set  forth  therein,  which  shows 
that  it  was  made  payable  to  the  order  of 
a  bank,  and  not  to  the  plaintiff,  and  which 
does  not  allege  any  indorsement  or  trans- 
fer of  the  note  to  the  plaintiff,  does  not 
state  a  cause  of  action.  Ball  v.  Lowe,  135 
Cal.  678;  68  Pac.  106.  Unless  there  is  a 
contract  in  writing,  signed  by  the  party 
to  be  charged,  authorizing  a  real-estate 
broker  to  sell  or  exchange  real  propertj', 
the  broker  cannot  recover  his  commissions. 
Zeimer  v.  Antisell,  75  Cal.  509;  17  Pac. 
642;  McPhail  v.  Buell,  87  Cal.  115;  25  Pac. 
266;  Dolan  v.  O'Toole,  129  Cal.  488;  62 
Pac.  92;  Jamison  v.  Hyde,  141  Cal.  109; 
74  Pac.  695;  Dreyfus  v.  Richardson,  20 
Cal.  App.  800;  130  Pac.  161;  Navlor  v. 
Ashton,  20  Cal.  App.  544;  130  Pac.  181; 
Holland  V.  Flash,  20  Cal.  App.  686;  130 
Pac.  32.  A  general  authority  given  to 
brokers,  to  negotiate  a  loan  upon  the  de- 
fendant's property,  at  a  specified  rate  of 
interest,  which  is  not  successfully  nego- 
tiated, cannot  be  construed  as  a  general 
authority  to  negotiate  a  sale  or  exchange 
of  the  property.  Holland  v.  Flash,  20  Cal. 
App.  686;  130  Pac.  32.  A  complaint 
against  a  judicial  officer  for  false  im- 
prisonment must  aver,  in  terms,  that  the 
acts  constituting  the  imprisonment  were 
without  or  in  excess  of  his  jurisdiction,  or 
facts  from  which  a  vv^ant  of  jurisdiction  ap- 
pears. Going  V.  Dinwiddle,  86  Cal.  633; 
25  Pac.  129.  In  an  action  of  forcible  entry 
and  unlawful  detainer,  it  is  not  necessary 
for  the  plaintiff  specially  to  plead  punitive 
damages.  San  Francisco  etc.  Society  v. 
Leonard,  17  Cal.  App.  254;  119  Pac.  405. 
One  who  claims  that  his  conduct  has  been 
influenced,  to  his  prejudice,  by  alleged 
false  statements  of  another,  must  allege 
that  he  believed  them  to  be  true,  and  re- 
lied on  them  in  his  subsequent  actions  re- 


327 


SUFFICIENCY    OP   FACTS. 


426 


lating  to  the  subject  tliereof.  Burke  v. 
Maguire,  154  Cal.  450;  'J8  Pac.  21.  One 
who  seeks  equity  must  do  equity:  a  com- 
plaint in  equity  which  •does  not  offer  to  do 
equity,  is  demurrable.  Buena  Vista  Fruit 
etc.  Co.  V.  Tuohy,  107  Cal.  243;  40  Pac. 
386.  An  allegation  in  the  comphiint,  "that 
the  said  defendant  executed  to  this  plain- 
tiff a  promissory  note,"  is  equivalent  to  an 
allegation  "that  the  defendant  made  his 
note  payable  to  the  plaintiff";  and  an 
averment  that  the  defendant  executed  to 
the  plaintiff  his  note  in  writing  includes 
and  imports  a  delivery  of  the  same  to  the 
plaintiff'.  Hook  v.  White,  36  Cal.  299.  The 
common  counts  for  money  had  and  re- 
ceived may  be  used  to  recover  money  ob- 
tained by  false  and  fraudulent  rei)resenta- 
tious.  Minor  v.  Baldridge,  123  Cal.  187; 
55  Pac.  783;  Winkler  v.  Jerrue,  20  Cal. 
App.  555;  129  Pac.  804.  If  money,  accord- 
ing to  the  allegations  of  a  complaint  to 
recover  money  paid  for  a  subscription  to 
stock,  is  paid  on  account  of  a  subscription 
for  the  purchase  of  stock  in  one  corpora- 
tion, but  is  diverted  to  payment  on  ac- 
count of  stock  in  another  corporation,  and 
it  is  shown  that  certain  named  defend- 
ants acted  as  agents  of  both  corporations 
in  the  matter,  the  complaint  states  a  good 
cause  of  action  against  both  the  corpora- 
tion defendant  and  the  agents.  Gray  v. 
Ellis,  164  Cal.  481;  129  Pac.  791.  The  an- 
jiexing  of  a  contract  to  complaint,  and 
making  it  a  part  thereof,  cannot  supply 
the  want  of  the  essential  averments  in  the 
pleading.  Hayt  v.  Bentel,  164  Cal.  680; 
130  Pac.  432.  A  complaint  in  an  action  to 
recover  damages  for  an  assault  and  bat- 
tery is  sufficient,  where  the  assault,  the 
means  employed,  and  the  character  thereof 
are  fully  set  forth.  Jones  v.  Lewis,  19 
Cal.  App.  575;  126  Pac.  853.  Where  the 
complaint,  in  an  action  for  goods  sold  and 
delivered,  alleges  a  sale  and  delivery  to 
defendants  other  than  the  corporation  de- 
fendant, and  that  such  corporation  assumed 
the  liability  of  such  other  defendants,  the 
sale  and  delivery  alleged  is  material  to  the 
alleged  liability  of  the  corporation,  and 
the  plaintiff  is  bound  by  the  material  al- 
legations of  his  complaint.  Napa  Valley 
Packing  Co.  v.  San  Francisco  Relief  etc. 
Funds,  16  Cal.  App.  461;  118  Pac.  469. 
Where  the  terms  of  a  special  contract  have 
been  varied  or  modified  by  the  agreement 
of  the  parties,  an  action  for  the  amount 
earned  should  be  in  the  form  of  indebita- 
tus assumpsit,  and  not  upon  the  contract. 
Naylor  v.  Adams,  15  Cal.  App.  548;  115 
Pac.  335.  In  a  complaint  for  the  foreclo- 
sure of  a  mechanic's  lien,  an  allegation  of 
the  agreed  price,  both  in  the  claim  of  lien 
and  in  the  complaint,  is  a  sufficient  prima 
facie  allegation  of  value,  and  is  sufficient, 
in  the  absence  of  a  demurrer  for  uncer- 
tainty. Coghlan  v.  Quartararo,  15  Cal. 
App.  662;  115  Pac.  664.  The  rule  which 
permits  the  pleader  to  declare  upon  a  con- 


tract in  ha;c  verba  is,  and  must  be,  limited 
to  cases  where  the  instrument  set  out  con- 
tains the  formal  contract,  showing  in  ex- 
press terms  the  promises  and  undertaking 
on  both  sides.  Joseph  v.  Holt,  37  Cal.  250. 
A  contract  in  writing  may  be  declared  on 
according  to  its  legal  effect,  or  in  hsec 
verba.  Joseph  v.  Holt,  37  Cal.  250.  A 
complaint  for  relief  against  a  judgment  or 
decree,  on  the  ground  of  alleged  fraud  in 
its  procurement,  which  does  not  state  nor 
show  any  fact  constituting  a  defense  to 
the  merits  of  the  original  action,  and 
which  does  not  show  that  the  moving  party 
is  able  to  present  to  the  court  the  evi- 
dence constituting  that  defense,  does  not 
state  a  cause  of  action.  Bell  v.  Thomp- 
son, 147  Cal.  689;  82  Pac.  327.  The  com- 
plaint, in  an  action  to  recover  upon  an 
assigned  claim,  should  state  that  the  plain- 
tiff is  the  owner  of  the  claim.  Krieger  v. 
Feeny,  14  Cal.  App.  538;  112  Pac.  901. 
The  allegation  that  a  certain  condition 
exists  because  of  a  certain  fact,  neces- 
sarily carries  with  it  the  im])lication  that 
that  fact  also  exists.  Bank  of  Anderson  v. 
Home  Ins.  Co.,  14  Cal.  App.  208;  111  Pac. 
507.  The  use  of  adverbs,  such  as  "will- 
fully," "unlawfully,"  "wrongfully,"  "ille- 
gally," "groundless,"  etc.,  cannot  supply 
omitted  facts.  Going  v.  Dinwiddle,  86  Cal. 
633;  25  Pac.  129.  The  use  of  the  terms 
"wrongfully,"  "unlawfully,"  "illegally," 
and  "without  authority  of  law,"  are  mere 
conclusions  of  law.  Hedges  v.  Dam,  72 
Cal.  520;  14  Pac.  133.  The  word  "due,"  in 
a  finding,  is  not  the  equivalent  of  "un- 
paid." Ryan  v.  Jacques,  103  Cal.  280,  37 
Pac.  186.  The  time  of  alleged  ouster  is 
not  material  in  a  complaint  in  ejectment. 
Kidder  v.  Stevens,  60  Cal.  414;  Collier  v. 
Corbett,  15  Cal.  183.  Where  the  pleading 
shows  that  a  cause  of  action  would  not 
arise  until  the  expiration  of  a  certain 
period,  it  must  appear  that  such  time  had 
elapsed  before  suit  was  commenced.  Dovle 
V.  Phoenix  Ins.  Co.,  44  Cal.  264.  The  alle- 
gation of  unnecessary  matter  may  be 
treated  as  surplusage.  Rogers  v.  Duhart, 
97  Cal.  500;  32  Pac.  570.  An  allegation  of 
actual  fraud  is  not  sustained  by  proof  of 
mistake;  nor  can  it  be  said  that  mistake, 
as  a  legal  proposition,  amounts  to  construc- 
tive fraud.  Mercier  v.  Lewis,  39  Cal.  532. 
An  allegation  as  to  the  filing  of  a  bond  is 
sufficient,  without  an  averment  of  its  exe- 
cution and  delivery.  Sacramento  County  v. 
Bird,  31  Cal.  66.  Where  the  complaint 
alleged  that  the  plaintiff  was  entitled,  by 
virtue  of  a  prior  appropriation,  to  all  the 
water  flowing  in  a  caiion  at  the  head  of  a 
ditch,  and  that  the  defendant  diverted  the 
water  to  the  plaintiff's  damage,  it  is  not 
necessary  to  state  whether  the  water  was 
supplied  at  th^  head  of  the  ditch  by  one  or 
more  smaller  streams.  Priest  v.  Union  Canal 
Co.,  6  Cal.  170.  In  an  action  brought  on 
a  stockholder's  liability,  an  averment  that 
the  corporation  became  indebted  to  a  cer- 


§426 


COMPLAINT. 


328 


tain  amount  is  a  sufficient  allegation  of 
the  creation  of  the  indebtedness,  as  against 
a  general  demurrer:  and  any  ambiguity  or 
uncertainty  is  waived  by  failure  to  demur 
on  these  grounds.  Duke  v.  Huntington, 
130  Cal.  272;  62  Pac.  510;  Whitehurst  v. 
Stuart,  129  Cal.  194;  61  Pac.  963.  Allega- 
tions must  be  accepted  as  true  upon 
demurrer,  so  far,  only,  as  they  relate  to 
matters  of  fact,  as  distinguished  from 
matters  of  law.  Ohm  v.  San  Francisco,  92 
Cal.  437;  28  Pac.  580.  The  complaint  of 
a  married  woman,  in  an  action  to  recover 
damages  for  an  alleged  wrongful  seizure 
of  her  personal  property,  which  fails  to 
state  that  the  property  was  her  separate 
property,  is  defective.  Thomas  v.  Des- 
mond, 63  Cal.  426.  A  complaint,  although 
insufficient  to  correct  a  mistake  in  a  deed, 
may  yet  be  sufficient  as  a  complaint  in  an 
action  to  quiet  title.  Smith  v.  Matthews, 
81  Cal.  120;  22  Pac.  409.  An  allegation 
that  the  plaintiff  is  seised  in  fee,  is  of  an 
ultimate  fact,  and  is  a  sufficient  statement 
of  the  right  of  the  plaintiff,  in  an  action 
of  ejectment  or  to  quiet  title.  Heeser  v. 
Miller,  77  Cal.  192;  19  Pac.  375;  Pavne  v. 
Treadwell,  16  Cal.  220;  Garwood  v.  Has- 
tings. 38  Cal.  216;  Ferrer  v.  Home  Mut. 
Ins.  Co.,  47  Cal.  416;  Rough  v.  Simmons, 
65  Cal.  227;  3  Pac.  804;  15  Morrison's 
Min.  Eep.  298.  Ultimate  facts,  only, 
should  be  pleaded:  neither  evidence  nor 
conclusions  of  law  should  be  set  forth. 
Hubbell  V.  Hubbell,  7  Cal.  App.  661;  95 
Pac.  664.  Pleadings  are  to  be  most  strictly 
construed  against  the  party  making  them. 
Campbell  v.  Jones,  38  Cal.  507.  The  suffi- 
ciency of  the  complaint  to  support  the 
judgment  must  be  reviewed  upon  an  ap- 
T)eal  from  the  judgment.  Wells  Fargo  & 
Co.  V.  McCarthy,  5  Cal.  App.  301;  90  Pac. 
203. 

Evidence  and  law  not  to  be  pleaded.  The 
facts  must  be  distinguished  from  evidence 
of  the  facts;  the  latter  pertains  to  the 
trial,  and  has  no  place  in  the  pleadings. 
Green  v.  Palmer,  15  Cal.  411;  76  Am. 
Dec.  492.  There  is  no  necessity  to  put 
the  law  into  the  pleading  (People  v.  Com- 
mon Council,  85  Cal.  369;  24  Pac.  727), 
nor  is  it  necessary  to  allege  matter  of  law 
in  the  complaint  (Board  of  Supervisors  v. 
Bird,  31  Cal.  66) ;  nor  need  matters  im- 
plied by  law  be  pleaded  (Wilhoit  v.  Cun- 
ningham, 87  Cal.  453;  25  Pac.  675;  Kraner 
V.  Halsey,  82  Cal.  209;  22  Pac.  1137);  nor 
need  probative  facts  be  averred  in  the 
complaint  (Dambmann  v.  White,  48  Cal. 
439),  and  they  will  be  stricken  out  as  sur- 
plusage, on  motion  (Miles  v.  McDermott, 
31  Cal.  270;  Gates  v.  Salmon,  46  Cal.  361); 
nor  should  presumptions  of  law  be  stated. 
Henke  v.  Eureka  Endowment  Ass'n,  100 
Cal.  429;   34  Pac.   1089. 

Presumptions  need  not  be  averred.  Pre- 
sumptions of  law  need  not  be  averred. 
Henke  v.  Eureka  Endowment  Ass'n,  100 
Cal.  429;  34  Pac.  1089;  Cuthill  v.  Peabody, 


19  Cal.  App.  304;  125  Pac.  926.  Where  a 
contract  is  required  to  be  in  writing,  the 
presumption  that  it  was  in  writing  ueces- 
sarilv  follows  the  allegation  of  its  making. 
Cuthill  v.  Peabody,  19  Cal.  App.  304;  125 
Pac.  926.  Fraud  is  not  presumed;  and 
whenever  it  constitutes  an  element  of  a 
cause  of  action  of  an  affirmative  nature,  or 
is  invoked  as  conferring  a  right,  it  must  be 
alleged.  Estate  of  Yoell,  164  Cal.  540; 
129  Pac.  999.  The  plaintiff,  in  an  action 
on  a  promissory  note,  is  presumed  to  be  the 
owner  and  holder  of  the  note  at  the  com- 
mencement of  the  action:  no  allegation  as 
to  ownership  is  required.  Pryce  v.  Jor- 
dan, 69  Cal.  569;  11  Pac.  185;  Kirk  v. 
Roberts,  3  Cal.  Unrep.  671;  31  Pac.  620; 
Hook  V.  White,  36  Cal.  299.  Whatever  is 
an  essential  element  to  a  cause  of  action 
must  be  presented  by  a  distinct  averment; 
it  cannot  be  left  to  an  inference  to  be 
drawn  from  the  construction  of  an  instru- 
ment, whether  set  forth  by  copy  in  the 
body  of  the  complaint,  or  attached  thereto 
as  an  exhibit.  Hibernia  Sav.  &  L.  Soc.  v, 
Thornton,  117  Cal.  481;  49  Pac.  573. 

Legal  conclusions.  In  legal  proceedings, 
it  is  the  means  by  which  a  result  is  to  be 
reached  which  must  determine  whether  a 
given  conclusion  is  one  of  fact  or  law;  if 
from  the  facts  in  evidence  the  result  can 
be  reached  by  that  process  of  natural  rea- 
soning adopted  in  the  investigation  of 
truth,  it  becomes  an  ultimate  fact,  to  be 
found  as  such;  if,  on  the  other  hand,  re- 
sort must  be  had  to  artificial  processes  of 
law  in  order  to  reach  a  final  determination, 
the  result  is  a  conclusion  of  law.  Levins 
V.  Eovegno,  71  Cal.  273;  12  Pac.  161.  An 
averment  or  a  statement  may  be  of  a  fact 
or  of  a  conclusion  of  law,  according  to  the 
context.  Levins  v.  Rovegno,  71  Cal.  273; 
12  Pac.  161;  Turner  v.  White.  73  Cal.  299; 
14  Pac.  794;  Lataillade  v.  Orena,  91  Cal. 
565;  25  Am.  St.  Rep.  219;  27  Pac.  924.  A 
conclusion  of  law  tenders  no  issue:  a  com- 
plaint depending  upon  such  an  allegation 
is  insufficient  and  demurrable.  Callahan 
V.  Broderick,  124  Cal.  80;  56  Pac.  782; 
Branham  v.  Mayor  and  Common  Council, 
24  Cal.  585;  Aurrecoechea  v.  Sinclair,  60 
Cal.  532;  Johnson  v.  Kirby,  65  Cal.  482;  4 
Pac.  458;  Spring  Valley  Water  Works  v. 
San  Francisco,  82  Cal.  286;  16  Am.  St. 
Eep.  116;  6  L.  R.  A.  756;  22  Pac.  910,  1046; 
Glide  V.  Dwver,  83  Cal.  477;  23  Pac.  706; 
Ohm  v.  San  Francisco,  92  Cal.  437;  2S  Pac. 
580.  A  conclusion  of  law  is  not  required 
to  be  denied  in  the  answer.  People  v. 
Hastings,  29  Cal.  449.  A  statement  of  con- 
clusions of  law  is  not  the  statement  of  an 
issuable  fact,  and  should  be  avoided.  Going 
V.  Dinwiddle,  86  Cal.  633;  25  Pac.  129; 
Postal  Telegraph  Cable  Co.  v.  Los  Angeles, 
164  Cal.  156;  128  Pac.  19.  A  statement 
that  the  parties  entered  into  a  parol  con- 
tract of  partnership  is  not  the  statement 
of  a  mere  legal  conclusion;  it  presents  an 
issuable    fact.     Doudell    v.    Shoo,    20    Cal. 


329 


STATEMENT — ALLEGATIONS — DEFECTS   CURED   HOW. 


§426 


App.  424;  129  Pac.  478.  An  averment  that 
one  is  the  "owner  and  holder"  of  an  in- 
strument, is  sinijily  the  averment  of  a  con- 
elusion  of  law.  Weddersjtoon  v.  Rogers, 
32  Cal.  569;  Poorman  v.  Mills  &  Co.,  35 
Cal.  118;  95  Am.  Dec.  90;  Hook  v.  White, 
36  Cal.  299;  Kennedy  etc.  Lumber  Co.  v. 
S.  S.  Construction  Co.,  123  Cal.  584;  56 
Pac.  457;  Curtin  v.  Kowalsky,  145  Cal.  431; 
78  Pae.  962;  People's  Home  Sav.  Bank  v, 
Stadtmuller,  150  Cal.  106;  88  Pac.  280.  An 
allegation  of  joint  liability  is  but  a  legal 
conclusion  (Ghiradelli  v.  Bourland,  32  Cal. 
585);  as  is  also  an  allegation,  made  on  in- 
formation and  belief,  that  no  notice  was 
given:  it  is  not  an  averment  of  a  fact. 
Stokes  V.  Geddes,  46  Cal.  17.  Where  the 
pleader,  in  an  action  to  quiet  title,  sets 
forth  specifically  the  links  in  his  chain  of 
title,  a  general  allegation  of  ownership 
will  be  treated  as  a  mere  conclusion  of 
law  from  the  facts  stated.  Gruwell  v.  Sey- 
bolt,  82  Cal.  7;  22  Pac.  938;  Kidwell  v, 
Ketler,  146  Cal.  12;  79  Pac.  514;  and  see 
Dye  V.  Dye,  11  Cal.  163;  Levins  v.  Ro- 
vegno,  71  Cal.  273;  12  Pac.  161;  Turner  v. 
White,  73  Cal.  299;  14  Pac.  794;  Heeser  v. 
Miller,  77  Cal.  192;  19  Pae.  375;  Savings 
and  Loan  Society  v.  Burnett,  106  Cal.  514; 
39  Pac.  922.  The  words,  "there  is  now 
due,"  etc.,  present  but  a  conclusion  of  law, 
and  not  an  averment  of  a  fact;  the  breach 
of  the  contract  to  pay  is  of  the  essence  of 
the  cause  of  action,  and  must  be  alleged; 
a  failure  to  allege  which  is  a  defect,  going 
to  the  statement  of  the  cause  of  action, 
which  is  not  waived  by  a  failure  to  demur. 
Ryan  v.  HoUiday,  110  Cal.  335;  42  Pac, 
891;  Frisch  v.  Caler,  21  Cal.  71;  Roberts 
v.  Treadwell,  50  Cal.  520;  Scroufe  v.  Clay, 
71  Cal.  123;  11  Pac.  882;  Barney  v.  Vigo- 
reaux,  92  Cal.  631;  28  Pac.  678.  Where 
the  complaint  shows  that  the  defendant 
threatened  to  sell  the  property  of  the  plain- 
tiff for  the  non-payment  of  an  illegal  tax, 
but  fails  to  show  that  the  defendant  was 
at  that  time  armed  with  any  authority, 
real  or  apparent,  to  carry  out  his  threat, 
there  is  no  showing  of  any  legal  duress  of 
person  or  property,  sufficient  to  establish 
compulsion  or  coercion.  Bank  of  Santa 
Rosa  V.  Chalfant,  52  Cal.  170.  In  the 
absence  of  all  explanation,  the  court  is 
justified  in  directing  the  jury  to  infer  a 
conversion  or  an  ouster  from  the  fact  of 
demand  and  refusal  of  a  co-tenant  to  be 
let  into  possession.  Carpentier  v.  Men- 
denhall,  28  Cal.  484;  87  Am.  Dec.  135.  The 
right  to  possession  follows  as  a  conclusion 
of  law  from  seisin,  and  need  not  be  al- 
leged. Payne  v.  Treadwell,  16  Cal.  220; 
Boles  V.  Weifenback,  15  Cal.  144;  Salmon 
V.  Symonds.  24  Cal.  260;  Keller  v.  De 
Oeana,  48  Cal.  638;  Hihn  v.  Mangenberg, 
89  Cal.  268;  26  Pac.  968;  F.  A.  Hihn  Co.  v. 
Fleckner,  106  Cal.  95;  39  Pac.  214;  Mc- 
Caughey  v.  Schuette,  117  Cal.  223;  59  Am. 
St.  Rep.  176;  46  Pac.  666;  48  Pac.  1088; 
Fredericks  v.  Tracy,  98  Cal.  658;  33  Pac. 
750. 


Defective  statement  of  facts.  Statements 
of  facts  must  be  concisely  made,  and,  when 
once  made,  should  not  be  repeated.  Green 
V.  Palmer,  15  Cal.  411;  76  Am.  Dec.  492. 
Only  the  ultimate  facts  need  be  pleaded. 
Green  v.  Palmer,  15  Cal.  411:  Babcock  v. 
Goodrich,  47  Cal.  488.  Pleadings  do  not 
subserve  the  i)urpose  intended,  where  the 
court  is  compelled  to  surmise  essential 
facts.  Gates  v.  Lane,  44  Cal.  392.  If  facts 
are  stated,  although  imperfectly,  showing 
the  liability  of  the  defendant,  the  com- 
plaint must  be  sustained.  Ryan  v.  Jacques, 
103  Cal.  280;  37  Pac.  186;  Tehama  County 
V.  Bryan,  68  Cal.  57;  8  Pac.  673;  Harnish 
V.  Braraer,  71  Cal.  155;  11  Pac.  888; 
Brown  v.  Weldon,  71  Cal.  393;  12  Pac. 
280;  Hughes  v.  Alsip,  112  Cal.  587;  44 
Pac.  1027.  Irrelevant  and  surplus  matter, 
although  objectionable,  will  not  vitiate 
the  complaint,  if  otherwise  sufficient. 
Smith  V.  Matthews,  81  Cal.  120;  22  Pac. 
409.  Irregularities  or  defects  in  the  state- 
ment of  a  cause  of  action  may  be  waived 
by  failing  to  answer,  or  by  answering  to 
the  merits;  but  a  defective  cause  of  ac- 
tion is  not  cured  by  failure  to  answer  or 
by  verdict.  Harmon  v.  Ashmead,  60  Cal. 
439;  Abbe  v.  Marr,  14  Cal.  210;  Choynski 
V.  Cohen,  39  Cal.  501;  2  Am.  Rep.  476. 
Where  one  count  in  the  complaint  is  de- 
fective, the  judgment  must  be  reversed, 
notwithstanding  the  other  counts  may  be 
good,  where  the  verdict  is  general,  and  it 
is  not  certain  upon  which  count  it  was 
founded.  Barron  v.  Frink,  30  Cal.  486. 
The  judgment  cannot  be  sustained,  unless 
the  iiroof  establishes  the  cause  of  action 
alleged  in  the  complaint,  even  though  a 
different  cause  of  action  is  fully  proven. 
Nichols  V.  Randall,  136  Cal.  426;  69  Pac. 
26;  Benedict  v.  Brav,  2  Cal.  251;  56  Am. 
Dec.  332;  Stout  v.  CoflSn,  28  Cal.  65;  Mon- 
dran  v.  Goux,  51  Cal.  151;  Devoe  v.  De- 
voe,  51  Cal.  543;  Murdock  v.  Clarke,  59 
Cal.  683;  Bryan  v.  Tormey,  84  Cal.  126; 
24  Pac.  319.  One  good  count  in  the  com- 
plaint, sustained  by  the  findings,  will 
support  the  judgment,  which  will  not  be 
reversed  because  of  the  insufficient  state- 
ment of  other  causes  of  action.  Terrill  v. 
Terrill,  109  Cal.  413;  42  Pac.  137;  Hunt 
V.  San  Francisco,  11  Cal.  250;  Barron  v. 
Frink,  30  Cal.  486;  Bernstein  v.  Downs, 
112  Cal.  197;  44  Pac.  557.  A  substantial 
averment  of  facts,  although  defective  in 
form,  will  support  the  verdict  or  a  de- 
fault judgment.  People  v.  Rains,  23  Cal. 
127.  Where  each  count  is  sufficient  as 
against  a  general  demurrer,  the  complaint 
is  sufficient  to  support  the  verdict  and 
judgment.  Bernstein  v.  Downs,  112  Cal. 
197;  44  Pac.  557. 

Defective  allegations,  how  cured.  Defec- 
tive allegations  are  cured  by  verdict;  all  in- 
tendments will  be  made  in  support  of  the 
judgment  thereon.  Cutting  Fruit  Packing 
Co.  V.  Canty,  141  Cal.  692;  75  Pac.  564: 
Hentsch  v.  Porter,  10  Cal.  555;  People  v. 
Rains,  23  Cal.  127;  San  Francisco  v.  Pennie, 


§426 


COMPLAINT. 


330 


93  Cal.  465;  29  Pac.  66;  Kimball  v.  Eichard- 
son-Kimball  Co.,  Ill  Cal.  386;  43  Pac.  1111. 
Defects  in  manner,  rather  than  in  matter, 
of  averment  do  not  render  the  complaint 
so  radically  insufficient  as  not  to  sustain 
the  judgment.  Eussell  v.  Mixer,  42  Cal. 
475.  Averments  lacking  in  the  complaint 
cannot  be  supplied  by  a  general  reference 
to  recitals  of  facts  in  an  exhibit  annexed 
to  and  made  a  part  of  the  complaint. 
Mayor  and  Common  Council  v.  Signoret,  50 
Cal.  298.  The  entire  absence  of  any  al- 
legation whatever  is  not  within  the  rule 
that  the  defective  allegation  of  a  fact  may 
be  cured  by  default  or  verdict.  Hentsch 
V.  Porter,  10  Cal.  555;  Richards  v.  Trav- 
elers Ins.  Co.,  80  Cal.  505;  22  Pac.  939.  A 
defective  complaint  is  cured  by  the  judg- 
ment, as  to  all  such  averments  as  may,  by 
fair  and  reasonable  intendment,  be  found 
to  have  been  pleaded.  Alexander  v.  Mc- 
Dow,  108  Cal.  25;  41  Pac.  44.  Tender  of 
issue  of  seisin  or  ownership  at  the  date  of 
bringing  suit  in  ejectment  should  be  made; 
but  the  defendant  may  tender  the  issue  in 
his  answer,  and  where  this  is  done,  the  de- 
fect in  the  complaint  is  cured.  Vance 
V.  Anderson,  113  Cal.  532;  45  Pac.  816; 
Schenck  v.  Hartford  Fire  Ins.  Co.,  71  Cal. 
28;  11  Pac.  807;  Cohen  v.  Knox,  90  Cal. 
266;  13  L.  E.  A.  711;  27  Pac.  215;  Die- 
fendorfiE  v.  Hopkins,  95  Cal.  343;  28  Pac. 
265;  30  Pac.  549;  San  Diego  County  v. 
Seifert,  97  Cal.  594;  32  Pac.  644. 

Breach  of  duty.  An  action  upon  a  con- 
tract must  show  a  breach  thereof.  Rich- 
ards V.  Travelers  Ins.  Co.,  80  Cal.  505;  22 
Pac.  939;  Morgan  v.  Menzies,  60  Cal.  341; 
Du  Brutz  V.  Jessup,  70  Cal.  75;  11  Pac. 
498.  If  there  is  not  an  entire  failure  to 
state  the  fact  of  a  breach  of  the  contract 
sued  upon,  or  to  allege  the  non-payment  of 
money  sought  to  be  recovered,  and  the 
averment  is  simply  uncertain  and  defective, 
the  defect  can  be  reached  only  by  spe- 
cial demurrer,  particularly  designating  the 
specific  point  at  which  it  is  aimed.  Grant 
V.  Sheerin,  84  Cal.  197;  23  Pac.  1094.  Where 
each  count  of  the  complaint  alleges  that 
the  defendant  "has  not  paid  any  part  of 
the  amount  due,  as  aforesaid,"  this  is  not 
a  legal  conclusion,  but  a  sufficient  aver- 
ment of  non-pavment.  Krieger  v.  Feenv, 
14  Cal.  App.  538;  112  Pac.  901.  A  com- 
plaint to  recover  a  deposit  made  upon  a 
contract  to  sell  land  is  sufficient,  where 
the  facts  stated  therein  show  that  the 
plaintifif  has  done  all  that  was  required  of 
him.  Snowden  v.  Derrick,  14  Cal.  App. 
309;  111  Pac.  757.  A  complaint  to  re- 
cover damages  for  the  breach  of  a  contract 
to  construct  a  building,  which  alleges  a 
failure  to  do  the  work,  an  abandonment 
thereof  in  an  uncompleted  condition,  a 
refusal  by  the  defendant  to  perform  the 
contract,  and  the  reasonable  cost  of  com- 
pleting the  building,  states  a  sufficient 
cause  of  action  as  against  a  general  de- 


murrer. Bacigalupi  v.  Phoenix  Bldg.  etc. 
Co.,  14  Cal.  App.  632;  112  Pac.  892.  In 
an  action  to  enjoin  a  continuous  trespass 
on  a  right  of  v/ay,  it  is  not  necessary  to 
allege,  in  the  complaint,  that  the  plaintiff 
was  the  owner  of  the  right  of  way  at  the 
time  the  right  to  the  use  thereof  was  first 
violated.  Miller  &  Lux  v.  Kern  County 
Land  Co.,  154  Cal.  785;  99  Pac.  179.  The 
complaint  in  an  action  on  a  contract  to  sell 
a  crop,  estimated  to  contain  twenty  car- 
loads, more  or  less,  alleging  the  delivery 
to  the  defendant  of  nine  car-loads,  and 
the  acceptance  thereof  and  part  payment 
therefor  by  him,  and  seeking  to  recovei 
the  balance  due,  states  a  cause  of  action. 
Hills  V.  Edmund  Peycke  Co.,  14  Cal.  App. 
32;  110  Pac.  1088.  Where,  in  an  action  to 
foreclose  a  mechanic's  lien,  the  building 
contract  provides  for  the  submission  of 
disputes  to  arbitration,  the  complaint  must 
show  a  compliance  with  such  provision; 
but  where  it  avers  the  completion  of  the 
contract,  the  acceptance  of  the  building, 
and  states  no  dispute,  there  is  a  waiver, 
by  such  acceptance,  of  the  defendant's 
right  to  have  any  dispute  settled  by  arbi- 
tration. Burke  v.  Dittus,  8  Cal.  App.  175; 
96  Pac.  330.  An  averment  in  a  complaint, 
that  a  specified  sum  "is  now  due  _  and 
owing,"  etc.,  though  the  statement  of  a 
legal  conclusion,  in  which  the  material  fact 
of  non-payment  is  implied,  is  sufficient  to 
sustain  a  judgment  by  default.  Penrose 
V.  Winter,  135  Cal.  289;  67  Pac.  772  (over- 
ruling Ryan  v.  Holliday,  110  Cal.  335;  42 
Pac.  891);  and  see  Burke  v.  Dittus,  8  Cal. 
App.  175;  96  Pac.  330.  A  complaint  for  a 
judgment  against  the  estate  of  a  deceased 
executrix  cannot  be  held  good  as  a  com- 
plaint in  equity  to  follow  a  trust  fund,  and 
to  obtain  an  order  on  the  administrator  of 
her  estate  to  tiirn  over  to  the  plaintiff  the 
share  of  the  trust  fund  claimed  by  the 
plaintiff,  when  no  breach  of  trust  is  al- 
leged in  the  complaint,  made  by  either  the 
executrix  or  her  administrator.  Burke  v. 
Maguire,  154  Cal.  456;  98  Pac.  21.  In  an 
action  to  recover  money  alleged  to  be  due 
on  a  contract,  an  averment  that  the  de- 
fendant has  "failed,  neglected,  and  re- 
fused to  pay,"  said  money,  or  any  part 
thereof,  is  a  sufficient  allegation  of  non- 
pavment,  when  tested  bv  general  demur- 
rer. O'Hanlon  v.  Denvir,  81  Cal.  60;  15 
Am.  St.  Rep.  19;  22  Pac.  407;  Eankin  v. 
Sisters  of  Mercv,  82  Cal.  88;  22  Pac.  1134; 
Grant  v.  Sheerin,  84  Cal.  197;  23  Pac. 
1094;  Gardner  v.  Donnelly,  86  Cal.  367; 
24  Pac.  1072;  Irwin  v.  Insurance  Com- 
pany, 16  Cal.  App.  143;  116  Pac.  294.  Such 
an  averment  was  held  not  sufficient,  in 
Scroufe  v.  Clay,  71  Cal.  123;  11  Pac.  SS2. 
A  complaint  which  alleges,  in  effect,  that 
the  defendant  cut  a  canal  through  the 
natural  bank  of  a  river,  and,  after  so  doing, 
failed  to  take  proper  precautions  to  pre- 
vent the  waters  of  the  river  from  flooding 


331 


ANTICIPATING    DEFENSE PLEADING    WRITTEN    INSTRUMENT. 


§426 


the  plaintiff's  land,  and  also  alleges  that 
the  waters  of  the  river  did  in  fact  flood 
his  land  to  his  injury,  sufficiently  states  a 
cause  of  action  as  afitaiust  a  general  de- 
murrer. Perkins  v.  Blauth,  163  Cal.  7S2; 
127  Pac.  50.  A  complaint  on  a  contract  to 
sell  and  improve  a  lot  states  no  cause  of 
action,  where  it  docs  not  allege  any  con- 
tract to  convey.  Hoffman  v.  Osborn,  15 
Cal.  App.  125;  113  Pac.  705.  Where  a  con- 
tract is  payable  in  installments,  and  suit 
is  brought  for  a  breach  of  such  contract, 
the  complaint  should  not  only  allege  that 
the  defendant  has  made  default  in  the  pay- 
ment of  one  or  more  of  the  installments, 
but  also  that  such  default  has  continued 
for  the  prescribed  period.  Southern  Cali- 
fornia Alusic  Co.  v.  Skinner,  17  Cal.  App. 
2U5;     119     Pac.    lOG. 

Allegations  must  be  direct.  Material 
allegations  must  be  distinctly  stated  in 
pleadings,  and  are  not  to  be  inferrerl  from 
doubtful  or  obscure  language.  Campbell 
V.  Jones,  38  Cal.  507.  It  is  not  sufficient 
to  state  a  material  fact,  in  a  complaint, 
by  way  of  recital;  it  should  be  directly 
averred.  Denver  v.  Burton,  28  Cal.  549. 
A  complaint  should  allege  a  material  fact 
by  way  of  direct  averment,  and  not  by  in- 
ference.   Stringer  v.  Davis,  30   Cal.  318. 

Consideration.  A  written  contract  car- 
ries with  it  the  presumption  of  a  considera- 
tion, as  a  matter  of  law;  and  the  burden 
is  cast  upon  the  defendant  to  show  the 
contrarj',  to  avoid  the  contract.  Cuthill  v. 
Peabody,  19  Cal.  App.  304;  125  Pac.  926. 
It  is  not  necessary  to  a  good  complaint  that 
the  consideration  of  a  contract  should  be 
alleged.  Cuthill  v.  Peabody,  19  Cal.  App. 
304;  125  Pac.  926.  It  is  not  necessary  to 
aver  a  consideration  in  a  complaint,  where 
it  is  implied  by  law  (Henke  v.  Eureka 
Endowment  Ass'n,  100  Cal.  429;  34  Pac. 
1089);  nor  is  it  necessary  to  aver  either 
a  consideration  or  a  promise,  where  either 
is  implied  as  a  legal  conclusion  from  the 
facts  alleged.  Krieger  v.  Feeny,  14  Cal. 
App.  538;  112  Pac.  901.  No  special  aver- 
ment of  a  consideration  is  necessary  in 
support  of  an  instrument  in  writing  im- 
porting a  consideration;  the  necessity  of 
pleading  a  consideration  is  obviated,  not 
by  the  mode  of  pleading  it,  but  by  the 
fact  that  it  is  in  writing.  Henke  v.  Eureka 
Endowment  Ass'n  100  Cal.  429;  34  Pac. 
1089;  and  see  McCartv  v.  Beach,  10  Cal. 
461;  Wills  V.  Kempt,  17  Cal.  98;  Goddard 
v.  Fulton,  21  Cal.  430.  A  complaint  for 
the  specific  performance  of  a  contract  for 
the  sale  of  land  must  allege  the  adequacy 
of  the  consideration  received  by  the  de- 
fendant. Sunrise  Land  Co.  v.  Root,  160 
Cal.   95;    116   Pac.    72. 

Anticipating  defenses.  It  is  not  neces- 
sary, in  a  complaint,  to  anticipate  or  nega- 
tive any  defense  or  counterclaim.  Hills  v. 
Edmund  Pevcke  Co..  14  Cal.  App.  32;  110 
Pac.  1088;  Kirk  v.  Roberts.  3  Cal.  Unrep. 
671;  31  Pac.  620.     If  relief  and  discharge 


is  set  out  in  bar  of  the  action,  still,  under 
our  system  of  jdeading,  which  i)ermits  no 
replication,  the  defense  of  fraud  is  open  to 
the  plaintiff,  without  special  averment; 
and  it  is  equally  open  to  him  to  rebut  the 
effect  of  a  release,  by  the  same  evidence, 
when,  though  not  pleaded  by  the  defend- 
ant, it  is  oft'ered  and  admitted  in  evidence. 
Montgomery  v.  Kauer,  125  Cal.  227;  57 
Pac.  894.  The  anticipation  of  a  defense 
may  render  the  complaint  objectionable 
for  uncertainty.  Munson  v.  Bowcn,  80  Cal. 
572;  22  Pac.  253.  If  there  was  a  mistake 
in  inserting  the  name  of  the  jiayee  of  a 
note  sued  upon,  the  facts  constituting  such 
mistake  must  be  set  forth  in  the  complaint. 
Ball  V.  Lowe,  135  Cal.  678;  68  Pac.  106. 
Where  the  complaint  states  a  cause  of  ac- 
tion, the  defendant,  if  he  admits  such  facts, 
must,  to  set  up  a  defense,  allege  new  mat- 
ter sufficient  to  defeat  the  legal  operation 
of  the  facts  stated  in  the  complaint.  Mc- 
Donald  V.    Davidson,   30   Cal.    173. 

Allegations  on  information  and  belief. 
Where  the  allegations  of  the  comjjlaint  re- 
late to  facts,  the  truth  of  which  is  par- 
ticularly within  the  knowledge  of  the  de- 
fendant, there  can  be  no  valid  objection 
to  their  being  based  on  information  and 
belief;  and  §  446  seems  to  contemplate  that 
the  averments  of  a  pleading  may  be  so 
based;  the  fact  that  the  records  of  the  de- 
fendant, a  corporation,  were  open  to  the 
inspection  of  the  plaintiff  does  not  affect 
the  rule,  for  the  reason  that  such  records 
may  be  contradicted,  if  they  do  not  speak 
the  truth.  McDermont  v.  Anaheim  Union 
Water  Co.,  124  Cal.  112;  56  Pac.  779.  A 
complaint  alleging  that  certain  services 
were  to  be  performed  for  the  plaintiff  by 
the  defendant,  implies  an  agreement  to  pay 
a  quantum  meruit,  and  is  good,  as  against 
a  general  demurrer,  so  far  as  the  question 
of  consideration  is  concerned.  Semi-Tropie 
Spiritualists'  Ass'n  v.  Johnson,  163  Cal. 
639;  126  Pac.  488.  If  a  verified  complaint 
alleges  facts  "on  information  and  belief," 
such  averments  do  not  present  anything 
more  than  hearsay  testimony,  incompetent 
for  the  proof  of  a  fact.  Kullman  v.  Su- 
perior Court,  15  Cal.  App.  276;  114  Pac. 
589. 

Pleading  a  written  instrument.  A  con- 
tract may  be  declared  on  according  to  its 
legal  effect,  or  in  hasc  verba;  and  where 
the  latter  is  the  case,  it  must  be  taken 
and  considered  as  a  part  of  the  complaint 
(Murdock  v.  Brooks.  38  Cal.  596;  Lambert 
v.  Haskell,  80  Cal.  611;  22  Pac.  327; 
White  v.  Soto,  82  Cal.  654;  23  Pac.  210); 
and  this  course  is  more  consistent  with 
the  mode  of  pleading  adopted  in  this  state 
.Joseph  V.  Holt,  37  Cal.  250.  A  copy  of  a 
note  annexed  to  the  complaint,  and  re- 
ferred to  therein,  forms  a  part  of  the  com- 
plaint. Ward  V.  Clav,  82  Cal.  502;  23  Pac. 
50,  227;  Whitby  v.  Rowell,  82  Cal.  6.15;  2.3 
Pac.  40.  382;  Savings  Bank  v.  Burns,  104 
Cal.    473;    38    Pac.    102.     Matters    of   sub- 


H26 


COMPLAINT. 


332 


stance  must  be  alleged  in  direct  terms, 
and  not  by  way  of  recital  or  reference, 
much  less  by  exhibits,  merely  attached  to 
the  pleading;  whatever  is  an  essential  ele- 
ment to  the  cause  of  action  must  be  pre- 
sented by  a  distinct  averment,  and  cannot 
be  left  to  an  inference  to  be  drawn  from 
the  construction  of  a  document  attached 
to  the  complaint.  Burkett  v.  Griffith,  90 
Cal.  532;  25  Am.  St.  Eep.  151;  13  L.  R.  A. 
7C7;  27  Pac.  527;  Hiberuia  Sav.  &  L.  Soc. 
V.  Thornton,  117  Cal.  481;  49  Pac.  573. 
To  plead  an  instrument  by  setting  it  forth 
in  full  is  a  recognized  mode  of  pleading  in 
this  state;  the  instrument  must  be  one  on 
which  an  action  or  defense  is  founded, 
and  must  be  free  from  defect  or  ambi- 
guity; and  if  not,  the  pleader  must  put 
some  construction  upon  it  by  averment; 
all  that  is  accomplished  by  setting  forth 
the  instrument  in  full  is  to  allege  its  ex- 
istence and  character;  it  does  not  involve 
an  assertion  of  the  truth  of  preliminary 
or  collateral  matters  recited  therein.  Lam- 
bert V.  Haskell,  80  Cal.  611;  22  Pac.  327. 
Where  a  subsequent  count  refers  to  a  pre- 
ceding count,  which  is  definite  and  cer- 
tain, and  prays  that  it  be  deemed  and 
taken  as  a  part  of  the  cause  of  action  as 
though  set  out  at  length,  such  reference  is 
sufficient,  and  it  is  unnecessary  to  repeat 
at  length,  in  each  of  the  succeeding  counts, 
the  facts  therein.  Treweek  v.  Howard,  105 
Cal.  434;  39  Pac.  20.  Records  and  papers 
cannot  be  made  a  part  of  the  pleading  by 
merely  referring  to  them,  and  praying 
that  they  may  be  made  a  part  of  such 
pleading,  without  annexing  the  originals 
or  copies  as  exhibits,  or  incorporating 
them  with  it,  so  as  to  form  a  part  of  the 
record  in  the  case.  People  v.  De  la  Guerra, 
24  Cal.  73;  Mayor  and  Common  Council  v. 
Signoret,  50  Cal.  298;  Lambert  v.  Haskell, 
80  Cal.  611;  22  Pac.  327;  Ward  v.  Clay, 
82  Cal.  502;  23  Pac.  50,  227;  Whitby  v. 
Rowell,  82  Cal.  635;  23  Pac.  40,  382.  The 
rule  as  to  exhibits  is  the  same,  whether 
the  instrument  is  set  forth  by  a  copy  in 
the  body  of  the  complaint  or  is  attached 
thereto  as  an  exhibit.  Hibernia  Sav.  &  L. 
Soc.  V.  Thornton,  117  Cal.  481 :  49  Pac. 
573.  There  is  no  difference  between  set- 
ting forth  an  exhibit  in  an  instrument, 
such  as  an  undertaking^  in  the  body  of 
the  yjleading,  or  in  annexing  it  as  an  ex- 
hibit and  making  it  part  of  the  pleading 
by  proper  reference;  in  each  case  the 
copy  is  a  part  of  the  pleading.  Lambert 
V.  "Haskell,  80  Cal.  611;  22  Pac.  327. 
Where  a  note  is  sued  upon,  a  copy  thereof 
in  the  complaint  need  not  show  the  inter- 
nal-revenue stamp  required  upon  the  origi- 
nal note;  in  order  to  defeat  recovery  on 
an  unstamped  note,  it  must  appear  not  only 
that  it  is  unstamped,  but  also  that  the 
stamp  has  been  fraudulently  omitted, 
which  can  be  done  only  by  answer.  Hal- 
lock  V.  Jaudin,  34  Cal.  167. 


Demand  of  relief.  The  theory  of  the 
provision  that  the  complaint  must  contain 
a  demand  of  the  relief  which  the  plaintiff 
claims,  is,  that  the  plaintiff  shall  not  only 
state  the  specific  facts  which  constitute 
his  cause  of  action,  but  that  he  shall  also 
state  the  specific  relief  to  vv'hich  he  con- 
siders himself  entitled;  the  policy  is,  to 
apprise  the  opposite  party  of  the  precise 
nature  of  the  demand,  in  order  that  he 
may  come  prepared  to  meet  it.  Nevada 
County  etc.  Canal  Co",  v.  Kidd,  37  Cal.  282. 

Any  relief  embraced  in  the  issues  may 
be  granted.  Where  the  issues  are  clearly 
shown  in  the  complaint  and  answer,  the 
court  is  authorized  to  grant  any  relief 
embraced  therein.  Hurlbutt  v.  Spaulding 
Sav.  Co.,  93  Cal.  55;  28  Pac.  795;  Blumberg 
v.  Birch,  99  Cal.  416;  37  Am.  St.  Rep.  67; 
34  Pac.  102.  The  complaint,  while  setting 
forth  a  single  cause  of  action,  may,  at 
the  same  time,  ask  for  different  relief 
from  different  defendants:  the  character 
of  the  complaint  is  to  be  determined  from 
its  contents,  rather  than  from  a  misnomer 
on  the  part  of  the  pleader.  Security  Loan 
etc.  Co.  v.  Mattern,  131  Cal.  326;  63  Pac. 
482.  Legal  and  equitable  relief  are  ad- 
ministered in  the  same  forum,  according 
to  the  same  general  plan;  and  a  party 
cannot  be  denied  his  rights,  merely  be- 
cause he  is  not  entitled  to  relief  at  law 
or  in  equity,  as  the  ease  may  be;  he  can 
be  sent  out  of  the  court  only  where,  upon 
his  facts,  he  is  entitled  to  no  relief,  either 
at  law  or  in  equity.  Grain  v.  Aldrich,  38 
Cal.  514;  99  Am.  Dec.  423.  The  amount 
for  which  judgment  is  demanded  in  the 
complaint  determines  the  iurisdiction 
(Rodley  v.  Curry,  120  Cal.  541;  52  Pac. 
999) ;  but  the  prayer  of  the  complaint  does 
not  conclude  the  question  of  jurisdiction, 
regardless  of  the  allegations  on  which  it 
is  founded.  Lehnhardt  v.  Jennings,  119 
Cal.  192;  48  Pac.  56;  51  Pac.  195;^  Jack- 
son v.  Whartenby,  5  Cal.  94.  Where  the 
facts  may  constitute  two  or  more  different 
causes  of  action,  and  may  authorize  dif- 
ferent judgments,  the  prayer  becomes  sig- 
nificant, and  may  determine  the  nature  of 
the  action.  Nevada  Countv  etc.  Canal 
Co.  V.  Kidd,  37  Cal.  282;  People  v.  Mior, 
24  Cal.  61;  Arrington  v.  Liscom,  34  Cal. 
365;  94  Am.  Dec.  722.  A  court  of  equity 
will  not,  even  under  a  prayer  for  general 
relief,  permit  a  party  to  go  beyond  the 
scope  of  the  case  made  by  the  bill;  nor 
will  it,  ordinarily,  permit  a  bill,  framed 
for  one  purpose,  answer  for  another  and 
distinct  purpose,  especially  if  the  defend- 
ant might  be  surprised  or  preiudiced 
thereby.  Johnson  v.  Polhemus,  99  Cal. 
240;  33  Pac.  90S.  Where  the  allegations 
of  the  complaint  are  insufficient  to  entitle 
the  plaintiff  to  introduce  proofs  as  to  any 
damages  suffered  by  him,  that  fact  does 
not  impair  its  sufficiency  to  establish  his 
right  to  equitable  relief;  nor  is  it  any  ob- 


333 


AMENDMENTS — ESTOPPEL — PLEADINGS. 


§426 


jection  to  the  complaint,  that  a  judgment 
for  damages  and  for  preventive  relief  is 
sovif,fht  in  the  same  action.  Bradley  v. 
An^lo-Amcrican  Gas  etc.  Co.,  102  t'al.  627; 
36  Pac.  1011.  The  legislature  is  not  pro- 
hibited from  regulating  the  practice  and 
jtroceedings  in  suits  in  equity  because  the 
constitution  has  conferred  upon  the  supe- 
rior court  jurisdiction  in  such  cases;  and 
having  such  power,  it  cannot  be  doubted 
that  it  has  also  the  power  to  regulate  the 
jiractice  of  granting  preventive  relief. 
Wright  V.  Superior  Court,  139  Cal.  469;  73 
Pac.  145.  Where  the  complaint  sets  forth 
only  one  cause  of  action,  and  the  relief 
sought  has  reference  only  to  this  cause  of 
action,  it  is  no  objection  to  the  complaint 
that  the  relief  sought  is  not  single. 
Wickersham  v.  Crittenden,  93  Cal.  17;  28 
Pac.  7SS;  and  see  Montgomerv  v.  Mc- 
Laury,  143  Cal.  83;  76  Pac.  964.  The 
right  to  both  legal  and  equitable  relief  is 
based  upon  the  same  facts.  San  Diego 
Water  Co.  v.  San  Diego  Flume  Co.,  108 
Cal.  549;  29  L.  R.  A.  839;  41  Pac.  495. 
In  a  case  of  an  equitable  character,  the 
prayer  of  the  complaint  may  be  dis- 
regarded, where  the  facts  stated  are  suffi- 
cient to  support  the  decision.  Wakefield 
V.  Wakefield,  16  Cal.  App.  113;  116  Pac. 
309.  The  relief  demanded  in  the  com- 
plaint does  not  indicate  the  character  of 
the  action;  the  substance  of  the  action 
determines  its  character,  and  this  must 
generally  be  ascertained  by  a  reference  to 
the  allegations  of  the  complaint,  without 
regard  to  the  nature  of  the  relief  pra3'ed 
for.  Bartlev  v.  Fraser,  16  Cal.  App.  560; 
117  Pac.  683. 

Amendments.  An  amended  complaint 
supersedes  the  original.  Bray  v.  Lowery, 
163  Cal.  256;  124  Pac.  1004.  Where  lio 
attempt  is  made  to  state  a  new  cause 
of  action  in  an  amended  complaint,  the 
amendment,  though  made  after  the  ex- 
piration of  the  period  of  limitation  for 
the  action,  relates  back  to  the  time  of 
its  commencement.  Euiz  v.  Santa  Bar- 
bara Gas  etc.  Co.,  164  Cal.  1,88;  128 
Pac.  330.  The  complaint,  whether  origi- 
nal or  amended,  can  properly  speak  only 
of  things  which  occurred  either  before  or 
concurrently  with  the  commencement  .of 
the  action.  California  Farm  etc.  Co.  v. 
Schiappa-Pietra,  151  Cal.  732;  91  Pac.  593. 
Where,  in  order  to  prevent  the  bar  of  the 
statute,  the  complaint  was  filed  on  the 
last  day,  the  statute  is  not  pleadable, 
either  by  demurrer  or  answer,  merely  be- 
cause the  signature  to  the  complaint  is 
omitted;  an  unsigned  complaint  is  not 
void.  Canadian  Bank  v.  Leale,  14  Cal. 
App.  307;  111  Pac.  759.  In  an  action  of 
forcible  entry  and  unlawful  detainer,  it 
is  an  abuse  of  discretion  to  refuse  to  al- 
low the  plaintiff  to  amend  his  complaint 
so  as  to  set  up  special  damages,  where  the 
application  to  amend  is  made  before  trial, 
and  there   is  no   objection   of   surprise   on 


the  part  of  defendant.  San  Francisco 
etc.  Building  Society  v,  Leonard,  17  Cal. 
App.  254;  119  Pac.  4(15.  A  cause  of  action 
to  quiet  title  is  not  changed  l)y  an  amend- 
ment, where  the  first  complaint  states  the 
wrongful  claim  of  defendant  in  general 
terms,  while  the  second  gives  the  details. 
Henrv  v.  Phillips,  163  Cal.  135;  Ann.  Cas. 
1914A,  39;  124  Pac.  837.  Where  the  com- 
plaint, with  proposed  amendments,  states 
a  cause  of  action,  refusal  to  allow  the 
amendments  is  error.  Campbell-Kixwan- 
nanakoa  v.  Campbell,  152  Cal.  201 ;  93  Pac. 
184.  A  cause  of  action  to  recover  dam- 
ages for  the  breach  of  a  contract,  as  set 
forth  in  an  original  complaint,  in  which 
the  plaintiffs  are  described  as  "formerly 
copartners,"  is  not  chanf^ed  bv  nn  amend- 
ment which  avers  that  the  plaintiffs  con- 
tinued to  be  copartners  in  the  subject- 
matter  of  the  litigation.  Ahlers  v.  Smiley, 
163  Cal.  200;   124  Pac.  827. 

Estoppel  must  Ije  pleaded.  Napa  Valley 
Packing  Co.  v.  San  Francisco  Relief  etc. 
Funds,  16  Cal.  App.  461;   118  Pac.  469. 

What  answer  must  contain.  See  note 
post,  §  437. 

Contracts  that  must  be  in  writing.  See 
Civ.  Code,  §  1624. 

Allowance  of  common  counts  under  code  sys- 
tem.   See  note  57  Am.  Dec.  .544. 

CODE  COMMISSIONERS'  NOTE.  1.  General 
rules  of  pleading  under  the  code.  The  court,  in 
the  ease  of  Grpon  v.  Pnlmer,  1  .'i  Cal.  414,  76  Am. 
Dec,  492.  lay  down  the  following  valuable  rules 
to   hp   observed  in   pleadins: 

[We  prive  the  entire  manual  written  by  David 
Dudley  Field,  from  which  the  court  makes  only 
certain  extracts.  We  have  also  inserted  the  title 
of  cases  and  a  dijrest  of  various  decisions  under 
the  rules,  which  they  are  intended  to  explain. 
The  rules  {renerally,  however,  are  as  given  in 
Green   v.   Palmer. — Ed.] 

First  rule.  The  pleadings  must  be  true.  That 
is  to  say.  the  pleader  must  set  forth  his  case 
as  he  believes  it.  In  this  respect,  pleadings 
under  the  code  differ  much  from  pleadings  at 
common  law;  for.  though  it  was  sometimes  said 
to  be  a  rule  of  that  law  that  the  truth  .should 
be  stated,  yet  it  was  equally  a  rule,  that  certain 
fictions  should  be  stated:  which  was  much  as  if 
one  should  say.  the  pleadings  must  be  true,  ex- 
cept when  required  to  be  false.  Thus  the  decla- 
rations in  trover  and  ejectment  were  standing 
falsehoods:  while  the  general  issue  in  ass\nnpsit. 
the  statements  under  a  videlicet,  the  usual  aver- 
ments of  place,  time,  and  amount,  and  many 
other  allegations,  were  little  better.  When  a 
lawyer  wrote  out  a  st.itement  and  put  it  on  the 
files  of  a  court,  that  his  client  was  possessed  of 
a  ship,  had  casually  lost  it.  and  the  defendant 
had  found  it,  the  truth  being  that  his  client  had 
never  had  possession,  while  the  defendant  had 
had  the  ship  in  his  own  hands  from  the  time  it 
was  built;  it  is  difficult  to  conceive  of  a  man  of 
education  being  reduced  to  a  position  more  dis- 
tasteful. Not  a  single  purpose  of  pleading  was 
subserved  by  such  statement.  It  did  not  apprise 
the  defendant  of  the  nature  of  the  plaintiff's 
claim:  it  did  not  inform  the  court  or  jury  of 
that  which  they  were  to  try;  and  it  did  not  pre- 
serve a  record  of  the  point  decided.  When  to 
such  a  statement  the  defendant  pleaded  the  gen- 
eral issue,  that  plea  being  nearly  universal,  it 
might  truly  be  said  that  in  no  stage  of  the  pro- 
ceedings, before  or  at  the  trial,  or  when  judg- 
ment was  rendered,  did  the  records  of  the  court 
contain  anything  from  which  one  could  gather 
the    nature    of    the    controversy.      Every    word    of 


§42G 


COMPLAINT. 


334 


truth  in  the  whole  proceeding  was  oral  and  un- 
recorded; everythinK  which  was  written  down 
was  deceptive  and  false.  So  of  an  action  of  eject- 
ment, under  our  revised  statutes,  even  after  the 
uncouth  barbarisms  of  fictitious  plaintiffs  and 
casual  ejectors  had  been  abolished.  The  plain- 
tiff was  obliRed  to  allege,  falsely  in  most  cases, 
that  on  some  day  after  his  title  accrued  he  was 
possessed  of  the  premises  in  question,  and  that 
the  defendant  afterwards  entered  into  them,  and 
unlawfully  withheld  them  from  the  plaintiff.  The 
defendant  pleaded  that  he  was  not  guilty  of  un- 
lawfully withholding  the  premises.  These  plead- 
ings seem  to  have  been  framed  on  the  model  of 
those  in  trover,  and  answered  as  little  the  true 
purpose  of  pleadings.  Neither  the.  parties,  nor 
the  court,  nor  the  jury,  before  the  oral  develop- 
ments of  the  trial,  could  guess  the  claim  or  de- 
fense: and  the  record  afterwards  did  not  show 
what  had  been  really  decided.  The  usual  aver- 
ments in  assault  and  battery  were  that  the  de- 
fendant assaulted  and  beat  the  plaintiff  with 
sticks,  stones,  knives,  etc.,  though  the  defend- 
ant had  but  couched  the  plaintiff  with  the  tip 
of  his  finger.  If  a  note  made  at  Singapore  or 
Calcutta  were  brought  to  suit  in  a  county  in  this 
state,  the  court  was  innocently  informed  that 
Singapore  or  Calcutta  lay  in  that  county.  These 
were  some,  and  some  only,  of  the  untruths  which 
common-law  pleading  required,  recommended,  or 
encouraged.  Under  this  code,  however,  the  rule 
is  universal  and  inexorable,  that  nothing  what- 
ever should  be  alleged  which  is  not  believed  to 
be  true;  and  the  lawyer  who  inserts  any  state- 
ment, no  matter  how  trivial,  which  he  does  not 
believe,  violates  that  rule,  and  with  it,  his  duty 
as  an  officer  of  the  law.  It  has  been  argued,  and 
sometimes  adjudged,  that  the  plaintiff  may  still 
set  forth  his  case  in  different  counts,  as  they  were 
called.  But  consider  for  a  moment  what  those 
counts  were.  They  were  generally  not  different 
causes  of  action,  but  different  forms  of  stating 
the  same  cause.  Now,  as  there  can  be  but  one 
true  statement  of  one  transaction,  and  as  the  code 
requires  the  pleadings  to  be  true,  it  should  seem 
to  follow  that  different  ways  of  stating  the  same 
claim  are  no  longer  permissible.  They  were  never 
permitted  in  a  bill  of  equity.  If  the  plaintiff  have 
different  causes  of  action,  he  may,  of  course,  and 
should,  set  them  forth;  but  he  should  not  set  forth 
the  same  cause  of  action  in  different  forms;  and 
when  he  sets  forth  different  causes,  they  should 
be  called  claims  or  causes  of  action,  and  not 
counts,  because  the  term  count  conveys  a  wrong 
impression  and  tends  to  preserve  a  nomenclature, 
and,  with  the  nomenclature,  rules  no  longer  in 
existence. 

Second  rule.  Facts  only  must  be  stated.  This 
means  the  physical  facts  cognizable  by  the  senses 
or  capable  of  being  shown  to  a  jury  without  the 
aid  of  legal  inferences;  the  facts,  as  contradis- 
tinguished from  the  law,  from  argument,  from 
hypothesis,  and  from  the  evidence  of  the  facts. 
A  legal  inference  or  conclusion  from  the  facts 
should  not  be  stated;  that  is  not  the  province  of 
the  pleadings  under  our  system,  which  is,  to  de- 
velop the  facts.  To  apply  the  law  to  the  facts — 
that  is,  to  draw  thence  legal  inferences  or  con- 
clusions— is  the  province  of  the  court.  See  Levin- 
son  V.  Schwartz,  22  Cal.  229;  Payne  v.  Treadwell, 
5  Cal.  310;  Payne  v.  Treadwell,  16  Cal.  246,  over- 
ruling Godwin  v.  Stebbins,  2  Cal.  105.  The  words 
"wrongful  or  unlawful,"  when  conclusions  of  law. 
See  Payne  v.  Treadwell,  16  Cal.  246.  An  aver- 
ment that  the  plaintiff  was  the  owner  or  holder 
of  a  note  is  not  the  averment  of  an  issuable  fact, 
it  is  but  the  averment  of  a  conclusion  of  law. 
Wedderspoon  v.  Rogers,  32  Cal.  572;  so,  also, 
that  a  certain  amount  is  due  upon  a  note.  Frisch 
V.  Caler,  21  Cal.  71.  An  averment  that  a  "loca- 
tion was  duly  and  properly  made,  according  to 
the  provisions  of  an  act,"  is  a  legal  conclusion, 
the  conditions  of  the  act,  and  the  performance 
thereof,  should  be  stated.  People  v.  Jackson,  24 
Cal.  632.  The  promise  to  pay  alleged  in  the  com- 
mon counts  in  assumpsit  were  merely  conclusions 
of  law.  Wilkins  v.  Stidger.  22  Cal.  235:  83  Am. 
Dec.  64,     Where  goods  were  sold  on  credit,  a  gen- 


eral averment  in  an  answer  that  the  "term  of 
credit  has  not  expired"  is  a  conclusion  of  law. 
Levinson  v.  Schwartz,  22  Cal.  229.  An  averment 
"that  any  rieht  that  plaintiffs  may  have  ever  had 
to  the  possession,"  etc.,  they  forfeited  by  a  non- 
compliance with  the  rules,  customs,  and  regula- 
tions of  the  miners  of  the  diggings  embracing  the 
claims  in  dispute,  prior  to  the  defendant's  entry, 
is  a  statement  of  a  conclusion  of  law.  Dutch  Flat 
Water  Co.  v.  Mooney,  12  Cal.  534.  The  averment 
in  the  complaint  that  the  ayuntamiento  had  full 
power  and  lawful  authority  to  do  the  act  in  ques- 
tion is  but  an  averment  of  a  conclusion  of  law, 
and  does  not  tender  an  issue  of  fact.  Branham  v. 
Mayor  and  Common  Council,  24  Cal.  602.  Argu- 
ment in  a  pleading  is  equally  inappropriate,  for 
that  is  to  be  made  orally  before  the  court,  when 
the  facts  are  developed.  Hypothetical  statements 
are  improper,  for  the  court  is  to  deal  not  with 
hypothetical  eases,  but  with  the  facts  of  the  case 
in  hand.  Snow  v.  Halstead,  1  Cal.  361.  The  de- 
fendant's pretenses  are  equally  improper,  as  they 
are  not  the  facts  of  the  plaintiff's  case.  The  facts 
must  be  carefully  distinguished  from  the  evidence 
of  the  facts.  The  latter  pertains  to  the  trial,  and 
has  no  place  in  the  pleadings.  Coryell  v.  Cain,  16 
C.Tl.  567;  Willson  v.  Cleaveland,  30  Cal.  200; 
Larco  v.  Casaneuava,  30  Cal.  565;  Racouillat  v. 
Rene,  32  Cal.  455;  Depuy  v.  Williams,  26  Cal. 
214.  But  inasmuch  as  the  evidence  is  but  a 
series  of  facts,  it  has  sometimes  been  thought  diffi- 
cult to  distinguish  between  the  greater  facts  which 
ought  to  be  set  forth  in  a  pleading  and  those  other 
and  lesser  facts  which  go  to  prove  the  former. 
There  ought,  however,  to  be  no  embarrassment  on 
the  part  of  any  lawyer  who  has  ever  framed  or 
who  understands  special  verdicts.  These  have 
been  long  known,  and  the  rule  is  as  old  as  their 
existence,  that  they  must  contain  the  facts  found 
and  not  the  evidence  to  prove  them.  The  essen- 
tial facts  must  be  stated  directly,  in  unequivocal 
language,  and  not  left  to  be  inferred.  The  lan- 
guage of  a  pleading  is  construed  most  strongly 
against  the  pleader.  Campbell  v.  Jones,  38  Cal. 
508;  Moore  v.  Besse,  30  Cal.  572;  but  see  also 
Marshall  v.  Shaffer,  32  Cal.  191.  Facts  which 
are  material  should  be  stated  in  the  pleadings  by 
direct  averment,  and  not  by  inference.  Stringer 
V.  Davis,  30  Cal.  318.  Allegations  simply  by  way 
of  recitals  are  insufficient.  Stringer  v.  Davis,  30 
Cal.  318;  Denver  v.  Burton,  28  Cal.  549;  Shafer 
V.  Bear  River  etc.  Mining  Co.,  4  Cal.  294;  see 
particularly  Halleck  v.  Mixer,  16  Cal.  577.  The 
next  rule,  however,  gives  us  a  satisfactory  test  by 
which  to  distinguish  the  facts  from  the  evidence. 
Third  rule.  Those  facts,  and  those  only,  must 
be  stated  which  constitute  the  cause  of  action,  the 
defense,  or  the  reply.  Therefore:  First.  Each 
party  must  allege  every  fact  which  he  is  required 
to  prove,  and  will  be  precluded  from  proving  any 
fact  not  alleged.  For  example,  when  a  writing  is 
by  the  statute  of  frauds  made  necessary  to  the 
validity  of  a  contract,  the  writing  must  be  averred, 
that  being  one  ox  the  facts  necessary  to  consti- 
tute a  cause  of  action.  The  plaintiff,  on  his  part, 
must  allege  all  th&t  he  will  have  to  prove  to  main- 
tain his  action;  the  defendant,  on  his  part,  all 
that  he  must  prove  to  defeat  the  plaintiff,  after 
the  complaint  is  admitted  or  proved.  See  also 
Jerome  v.  Stebbins.  14  Cal.  458;  Racouillat  v. 
Rene,  32  Cal.  455.  Second.  He  must  allege 
nothing  affirmatively,  which  he  is  not  required  to 
prove.  This  is  sometimes  put  in  the  following 
form:  that  is  to  say,  that  those  facts,  and  those 
only,  should  be  stated  which  the  party  would  be 
required  to  prove.  But  this  is  inaccurate,  as 
negative  allegations  are  frequently  necessary,  and 
they  are  not  to  be  proved  (Payne  v.  Treadwell, 
16  Cal.  243);  as,  for  example,  in  an  action  on  a 
promissory  note,  the  plaintiff  must  allege  not  only 
the  making  of  the  note,  but  that  it  has  not  been 
paid.  The  rule,  however,  applies  to  all  affirma- 
tive allegations,  and,  thus  applied,  is  universal. 
Xo  matter  what  averments  were  held  to  be  neces- 
sary in  the  former  scheme  of  pleading,  nothing  of 
an  affirmative  character  is  now  necessary  beyond 
what  the  party  must  prove.  For  instance,  it  is 
enough   to   allege    that   the   defendant   published   a 


335 


STATEMENT — CONCISENESS — REPETITIONS. 


§426 


libel  of  the  plaintiff,  without  addiiij,'  that  he  ilid 
it  falsely  or  maliciously;  the  falsehood  being  pre- 
sumed, and  the  malice  being  inferred  from  the 
falsehood.  It  must  be  recollected,  then,  in  the 
first  place,  that  every  fact  essential  to  the  claim 
or  defense  should  be  stated.  If  this  part  of  the 
rule  be  violated,  the  adverse  party  may  demur. 
In  the  second  place,  that  nothing  should  be  stated 
which  is  not  essential  to  the  claim  or  defense,  or, 
in  other  words,  that  none  but  issuable  facts  should 
be  stated.  If  this  part  of  the  rule  be  violated, 
the  adverse  party  may  move  to  strike  out  the  un- 
essential parts.  See  Piercy  v.  Sabin,  10  Cal.  22; 
70  Am.  Dec.  ()92.  What  is  and  what  is  not  es- 
sential, an  uninstructed  person  might  not  readily 
discover,  but  a  lawyer  ought  not  to  be  in  doubt. 

An  unessential,  or,  what  is  the  same  thing,  an 
immaterial  allegation,  is  one  which  can  be  stricken 
out  from  the  pleading  without  leaving  it  in- 
sufficient, and,  of  course,  need  not  be  proved  or 
disproved.  See  S  463,  post.  The  following  ques- 
tion will  determine  in  every  case  whether  an  alle- 
gation be  material.  Can  it  be  made  the  subject 
of  a  material  issue?  In  other  words,  if  it  be 
denied,  will  the  failure  to  prove  it  decide  the 
cause  in  whole  or  in  part?  If  it  will  not,  then 
the  fact  alleged  is  not  material;  it  is  not  one  of 
those  which  constitute  the  cause  of  action,  de- 
fense, or  reply.  To  illustrate  this,  let  us  sup- 
pose an  ultimate  fact,  upon  the  establishment  of 
which  the  claim  or  defense  depends,  and  that  the 
establishment  of  this  fact  depends  upon  the  es- 
tablishment of  three  or  four  prior  facts,  which, 
being  established,  prove  this.  It  is  the  ultimate 
fact,  and  not  the  prior  or  probative  facts,  which 
should  be  set  forth.  Miles  v.  McDermott,  31  Cal. 
272;  Grewell  v.  Walden,  23  Cal.  169;  see  also 
Marshall  v.  Shaffer,  32  Cal.  193.  As,  for  example, 
an  action  upon  the  covenants  of  a  deed;  the  exe- 
cution and  delivery  of  the  deed  are  ultimate  facts 
upon  which  the  claim  depends.  When  these  come 
to  be  proved,  it  may  appear,  perhaps,  that  the 
deed  was  delivered  first  in  escrow,  till  the  per- 
formance of  certain  conditions  by  the  grantee; 
that  these  were  afterwards  performed,  and  then 
the  delivery  became  absolute.  These,  however, 
are  circumstances  which,  though  they  will  appear 
in  proof,  should  not  be  pleaded.  Or,  take  the 
case  of  an  action  for  land,  where  the  question  is 
one  of  boundary.  The  point  in  issue  is,  whether 
the  defendant  is  in  possession  of  the  plaintiff's 
land,  that  being  affirmed  by  the  plaintiff  and 
denied  by  the  defendant.  It  would  be  out  of 
place  for  either  party  to  insert  in  his  pleading 
a  correspondence  respecting  the  dividing  fence, 
or  the  acts  of  the  parties  toward  a  practical  loca- 
tion, because,  however  important  these  might  be 
in  evidence,  they  might  not  determine  the  cause, 
since,  if  the  correspondence  or  the  practical  loca- 
tion were  disproved,  the  question  of  the  true 
boundary,  according  to  the  deeds,  would  still  re- 
main. If,  in  an  action  for  a  libel,  the  defendant 
justifies,  he  must  allege  the  truth  of  the  charge, 
not  the  defendant's  admissions  tending  to  prove 
the  truth,  since  the  admissions  might  be  dis- 
proved, and  yet  the  charge  be  true.  So,  in  an 
action  upon  a  mortgage,  if  the  defeiise  be  pay- 
ment, the  fact  of  payment  must  be  alleged,  not 
the  evidence  of  the  plaintiff's  admission  that  it 
had  been  paid,  since  there  may  have  been  no  ad- 
mission, but  nevertheless  a  payment. 

It  has  been  already  said  that  some  latitude  is 
allowable  in  respect  to  the  number  of  facts  to  be 
stated,  depending  upon  the  relief  sought.  In  an 
action  to  enforce  a  written  agreement,  nothing 
behind  the  fact  of  the  agreement  need  be  alleged; 
while  in  an  action  to  reform  an  instrument,  the 
circumstances  under  which  it  was  made  may  be 
most  properly  set  forth.  It  results,  then,  from 
what'  has  been  stated,  under  the  present  rule:  first, 
that  the  pleader  must  insert  in  his  pleading  what- 
ever he  is  to  prove;  secondly,  that  he  must  insert 
no  affirmative  allegation  which  he  is  not  to  prove; 
and  thirdly,  that  what  he  does  insert  must  be  de- 
cisive of  some  part  of  the  cause,  one  way  or  the 
other.  In  an  action  of  ejectment  to  obtain  a  re- 
covery, the  title  of  the  plaintiff  is  the  ultimate 
fact — the  fact  in   issue.      The  facts  going  to   sup- 


port his  alle!'cd  title  are  probative  facts,  which, 
if  disputed  bv  the  defendant,  are  facts  in  contro- 
versy. Marshall  v.  Shaffer,  32  Cal.  193,  and 
cases  cited.  Complaint  should  not  state  facts 
anticipating  a  defense.  The  only  object  to  be 
gained  by  such  pleading  is  to  put  the  adverse 
party  upon  his  oath  without  making  him  a  wit- 
ness, and  the  effect  of  allowing  this  would  be  to 
establish  a  system  of  discovery  in  conflict  with 
the  spirit  of  the  statute.  Canfield  v.  Tobias,  21 
Cal.  3.51.  It  W3S  held  to  be  bad  pleading  to  slate 
in  the  complaint  a  discharge  in  insolvency,  or  a 
new  promise.  Nothing  which  constitutes  matter 
of  defense  should  be  averred  in  the  complaint. 
The  former  is  a  matter  of  defense,  to  be  set  up 
by  the  defendant;  and  the  latter  is  a  matter  of 
replication,  either  by  way  of  plea  or  evidence,  as 
the  system  of  pleading  may  be.  Smith  v.  Rich- 
mond, 19  Cal.  483. 

rourth  rule.  All  statements  must  be  concisely 
made,  and  when  once  made,  must  not  be  repeated. 
At  common  law,  as  well  as  in  chancery,  the  plead- 
ings were  the  very  opposite  of  concise.  If  there 
were  lawyers  who  thought  differently,  they  were 
swayed  by  peculiarities  of  taste  or  education. 
The  "terseness  of  the  common  law"  had  as  little 
to  justify  or  recommend  it  as  those  other  abused 
phrases,  "The  law  is  the  perfection  of  reason," 
and  "The  wisdom  of  our  ancestors."  Even  the 
forms  with  which  we  are  most  familiar,  the  tradi- 
tional forms  in  daily  use,  appear  to  have  been 
framed  with  an  irresistible  instinct  towards  the 
use  of  several  words  to  express  the  meaning  of 
one.  If  the  declaration  was  for  money  lent,  that 
•was  set  forth  as  "money  lent  and  advanced" ;  if 
for  money  paid,  it  was  for  money  "paid,  laid  out, 
and  expended":  if  for  money  received,  it  was, 
"had  and  received" ;  as  if,  in  each  instance,  one 
of  these  words  did  not  express  as  much  as  all  of 
them.  There  were  really  no  concise  pleadings  at 
common  law,  excepting  the  fictitious  ones.  A 
declaration  on  the  case,  or  in  covenant,  or  in  as- 
sumpsit on  a  policy  of  insurance,  or  other  special 
agreement,  was  long,  involved,  and  full  of  repe- 
titions. The  declarations  in  trover,  ejectment,  and 
replevin  were  short;  but  they  were  false,  or  dis- 
closed nothing.  Every  pleading  that  set  forth 
the  facts,  set  them  forth  wrapped  in  a  cloud  of 
words.  A  statute  referred  to  was  "the  statute  in 
such  case  made  and  provided."  The  spirit  of  re- 
dundancy went,  indeed,  beyond  pleadings,  and 
pervaded  all  writings  which  came  from  the  hands 
of  lawyers.  Conveyances  piled  expression  upon 
expression,  till  the  sense  was  nearly  lost  sight 
of.  Land  was  "given,  granted,  bargained,  sold, 
aliened,  remised,  released,  conveyed,  and  con- 
firmed," two  or  three  times  over  in  every  deed. 
Statutes  were  overloaded,  till  the  head  grew 
weary  with  their  endless  involutions.  Thus,  also, 
such  words  as  "duly,"  "wrongfully,"  and  "unlaw- 
fully," so  frequently  used  in  pleadings,  might 
better  be  omitted.  They  tender  no  issue,  and 
serve  only  to  detract  from  that  logical  directness 
and  simplicity  of  statement  which  ought  always 
to  be  observed  in  a  pleading.  Miles  v.  McDer- 
mott, 31  Cal.  272;  Halleck  v.  Mixer,  16  Cal.  574. 
See,  as  to  surplusage,   §§  4.53  to  465,  post. 

There  never  was  a  greater  slander  upon  the 
code  than  to  say  that  it  permits  long  pleadings. 
On  the  contrary,  it  enjoins  conciseness  every- 
where; and  if  in  any  pleading  that  was  ever  writ- 
ten under  its  rule  there  be  an  unnecessary  word, 
it  was  put  there  in  disregard  of  its  provisions. 
Nor  is  it  possible  to  frame  or  conceive  of  a  sys- 
tem proceeding  upon  the  idea  of  disclosing  the 
facts  of  the  case,  which  could  require  greater  con- 
ciseness than  is  here  required.  If  pleadings  are 
not  to  set  forth  the  real  claim  and  defense,  they 
are  useless,  and  had  better  be  dispensed  with.  A 
summons  to  appear  before  the  court  and  jury  on 
a  particular  day,  to  try  the  rights  of  the  parties 
on  a  particular  subject,  would  be  just  as  useful. 
But  if  a  pleading  is  to  be  a  statement  of  the 
claim  or  defense,  can  the  wit  of  man  contrive  to 
make  it  briefer  than  a  concise  statement  of  the 
facts?  If  an  immaterial  statement  be  inserted, 
or  even  an  unnecessary  word,  the  courts  have  the 
power  to   strike  it   out.     To   avoid  repetition,   as 


§426 


COMPLAINT. 


336 


well  as  to  obtain  conciseness,  logical  order  is 
necessary.  There  are  persons  who  are  incapable 
of  making  a  logical  statement  of  anything,  and 
such  persons  will  be  bad  pleaders  under  the  code. 
But  a  man  of  education,  as  every  lawyer  is  sup- 
posed to  be,  ought  to  have  no  difficulty  in  setting 
forth  any  occurience  in  its  logical,  which  is  its 
natural,  order.  And  if  he  does  this,  and  sets 
forth  only  the  facts  on  which  his  case  hinges,  and 
uses  no  more  words  than  are  necessary,  we  shall 
have  brevity  and  substance,  and  hear  no  more  of 
long  pleadings,  unnecessary  recitals,  or  immate- 
rial averments.  The  foregoing  are  general  rules, 
applicable  alike  to  the  complaint  and  answer. 
How  successfully  and  rapidly  they  will  develop 
the  issues  if  they  be  strictly  applied,  is  easily  to 
be  seen,  since  every  allegation  must  be  essential 
to  some  part  of  the  claim  or  defense,  and  the 
denial  of  any  one  must  be  so  far  decisive  of  the 
case.  At  common  law  each  plea  was  to  be  an  an- 
swer to  the  whole  declaration;  and  as  there  might 
be  as  many  pleas  as  one  wished,  every  material 
allegation  might  be  successively  denied.  All  this 
may  be  done  under  the  code  in  less  time,  with 
greater  certainty,  and  in  fewer  words.  The  plead- 
ings will  be  considered  in  the  order  in  which  they 
naturally  occur,  omitting,  however,  any  observa- 
tions respecting  the  demurrer.  There  is  nothing 
in  the  frame  of  that  which  requires  particular 
notice,  further  than  to  observe  that  it  does  not 
perform  an  office  so  extensive  as  it  performed  in 
common-law  pleadings.  There  are  many  objec- 
tions formerly  brought  before  the  court  upon  de- 
murrer, which  are  now  brought  before  it  upon  a 
simple  motion. 

The  complaint.      This  is  to  contain: 

1.  The  title.  Specifying  the  name  of  the  court 
in  which  the  action  is  brought,  the  name  of  the 
county  in  which  the  plaintiff  desires  the  trial  to 
be  had,  and  the  names  of  the  parties  to  the  action 
[i.  6.,  all  the  parties,  plaintiff  and  defendant], 

■ Court, 

County  of , 

A,  B,  &  C,  D, 

agt. 

E,  F,  G,  H,  &  J,  K. 

2.  The  statement.  A  plain  and  concise  state- 
ment of  the  facts  constituting  a  cause  of  action, 
without  unnecessary  repetition. 

A  B,  plaintiff,  complains  [or  alleges], 

First 

Second 

Third 

And  so  on;  or  if  there  be  more  than  one  cause 
of  action,  which  may  be  united  under  §  427,  post, 
thus: 

A  B,  plaintiff,    complains    [or  alleges]. 

For  a  first  cause  of  action: 

First 

Second 

Third 

For  a  second  cause  of  action: 

First 

Second 

Third 

And  50  on. 

There  is  an  advantage  in  numbering  fhe  alle- 
gations, as  it  tends  to  produce  clearness  of  state- 
ment, logical  order,  and  conciseness,  and  separates 
the  allegations,  leading  to  singleness  of  issues. 

3.  The  demand.  A  demand  of  the  relief  to 
which  the  plaintiff  supposes  himself  entitled.  If 
the  recovery  of  money  be  demanded,  the  amount 
thereof  must  be  stated. 

Wherefore  the  plaintiff  demands  judgment  that 

he    recover   of   the    defendant    the    sum   of    $ , 

with  interest  from  the  day  of  ,   or  judgment 

that  the  defendant  execute  and  deliver  to  the 
plaintiff  a  conveyance  of,  etc.,  and  be  also  en- 
joined from,  etc. 

Some  attorneys  add:  "And  that  the  plaintiff 
may  have  such  other  relief  as  the  case  requires," 
copying  the  prayer  for  relief  formerly  used  in 
chancery;  bat  this  is  useless,  since  the  court  must 
give  such  relief  as  the  case  requires,  whether  de- 
manded or  not.  See  §  580.  It  is,  besides,  unau- 
thorized. See  Rollins  v.  Forbes,  10  Cal.  299; 
Truebody    v.    Jacobson,    2    Cal.    269;    People    v'. 


Turner,  1  Cal.  152.  Demand  for  treble  damage* 
must  be  expressly  inserted.  See  Chipman  t. 
Emeric,  5  Cal.  239. 

2.  Object  of  code  to  narrow  the  evidence  on 
trial.  It  was  the  intention  of  the  code  to  require 
the  pleadings  to  be  so  framed  as  not  only  to  ap- 
prise the  parties  of  the  facts  to  be  proved  by  them 
respectively,  but  to  narrow  the  proofs  on  the  trial. 
Piercy  v.    Sabin,  10  Cal.  22;   70  Am.  Dec.  692. 

3.  Complaint  must  contain  name  of  court  and 
county  where  action  is  brought.  So  far  as  con- 
cerns the  place  of  trial  of  civil  actions,  see  §§  392 
to  400,  inclusive. 

4.  Complaint  must  contain  names  of  the  par- 
ties to  the  action.  As  to  who  are  the  proper  par- 
ties in  an  action,  see  §§  308,  and  367  to  389, 
inclusive. 

5.  Averment  in  complaint  which  must  be  made 
to  authorize  arrest  of  defendant.  Porter  v.  Her- 
man, 8  Cal.  623;  Ex  parte  Cohen,  6  Cal.  318; 
Davis  V.  Robinson,  10  Cal.  411. 

6.  Pleading  in  actions  to  recover  the  posses- 
sion of  real  property.  It  is  u.sual  to  speak  of 
the  action  to  recover  the  possession  of  real  prop- 
erty as  an  action  of  ejectment,  and  it  is  possible 
that  with  the  technical  designation  it  is  sometimes 
thought  that  some  of  the  technical  allegations 
peculiar  to  the  old  form  of  the  action  are  still 
necessary;  but  such  is  not  the  case.  There  is  but 
one  form  of  civil  actions  in  this  state,  and  all  the 
forms  of  pleadings  and  the  rules  by  which  their 
sufficiency  is  to  be  determined  are  prescribed  by 
the  code.  Tlie  complaint  must  contain  "a  state- 
ment of  the  facts  constituting  the  cause  of  action, 
in  ordinary  and  concise  language,"  and  it  may  be 
verified  by  the  oath  of  the  party,  in  which  case 
the  answer  must  also  be  verified.  The  system  in 
this  state  requires  the  facts  to  be  alleged  as  they 
exist,  and  repudiates  all  fictions;  and  only  such 
facts  need  be  alleged  as  are  required  to  be  proved, 
except  to  negative  a  possible  performance  of  the 
obligation  which  is  the  basis  of  the  action,  or  to 
negative  an  inference  from  an  act  which  is  iu 
itself  indifferent.  Now,  what  facts  must  be  proved 
to  recover  in  ejectment?  These  only:  that  the 
plaintiff  is  seised  of  the  premises,  or  of  some  es- 
tate therein  in  fee,  or  for  life,  or  for  years,  and 
that  the  defendant  was  in  their  possession  at  the 
commencement  of  the  action.  The  seisin  is  the 
fact  to  be  alleged.  It  is  a  pleadable  and  issuable 
fact,  to  be  established  by  conveyances  from  a  para- 
mount source  of  title,  or  by  evidence  of  prior 
possession.  It  is  the  ultimate  fact  upon  which 
the  claim  to  recover  depends,  and  it  is  facts  of 
this  character  which  must  be  alleged,  and  not  the 
prior  or  probative  facts  which  go  to  establish  them. 
It  is  the  ultimate  facts — which  could  not  be  struck 
out  of  a  pleading  without  leaving  it  insufficient — 
and  not  the  evidence  of  those  facts,  which  must 
be  stated.  It  is  sufficient,  therefore,  in  a  com- 
plaint in  ejectment,  for  the  plaintiff  to  aver  in 
respect  to  his  title,  that  he  is  seised  of  the  prem- 
ises, or  of  some  estate  therein  iu  fee,  or  for  life, 
or  for  years,  according  to  the  fact.  The  right  to- 
the  possession  follows  as  a  conclusion  of  law  from 
the  seisin,  and  need  not  be  alleged.  The  posses- 
sion of  the  defendant  is  of  course  a  pleadable  and 
issuable  f;',ct,  and  the  only  question  of  difficulty 
arises  from  the  supposed  necessity  of  negativing 
its  possible  rightful  character.  That'  negative 
allegations,  which  are  not  required  to  be  proved, 
may  in  some  actions  be  necessary,  may  be  ad- 
mitted: but  is  there  any  such  necessity  as  to  the- 
possession  of  the  defendant  in  an  action  of  eject- 
ment ?  It  seems  to  us  that  the  substance  of  a 
complaint  in  ejectment  under  our  practice  is  this: 
"A  owns  certain  real  property,  or  some  interest 
in  it;  the  defendant  has  obtained  possession  of  it, 
and  withholds  the  possession  from  him."  If  the 
defendant's  holding  rests  upon  any  existing  right, 
he  should  be  compelled  to  show  it  affirmatively  in 
defense.  The  right  of  possession  accompanies  the 
ownership,  and  from  the  allegation  of  the  fact  of 
ownership — which  is  the  allegation  of  seisin  in 
"ordinary  language" — the  right  of  present  posses- 
sion is  presumed  as  a  matter  of  law.  We  do  not 
think,  therefore,  any  allegation  beyond  that  of 
possession  by  the  defendant  is  necessary,  except 


337 


PLEADINGS — ACTIONS  TO  RECOVER  REAL  PROPERTY. 


§426 


that  he  withholds  the  possession  from  the  plain- 
tiff. The  allegation  that  the  possession  is  "wrong- 
ful or  unlawful"  is  not  the  statement  of  a  fact, 
but  of  a  conclusion  of  law.  The  words  are  mere 
surplusage,  and,  though  they  do  not  vitiate,  they 
do  no  good.  The  withholding  of  the  possession 
from  one  who  is  seised  of  the  premises  is  pre- 
sumptively adverse  to  his  right,  and  wrongful. 
It  is  by  force  of  this  presumption  that  the  plain- 
tiff can  rest,  in  the  first  instance,  his  case  at  the 
trial  upon  proof  of  his  seisin,  and  of  the  posses- 
sion by  the  defendant.  From  these  facts,  when 
established,  the  law  implies  a  right  to  the  pres- 
ent possession  in  the  phiintiir,  and  a  holding  ad- 
verse to  that  right  in  the  defendant. 

Where  the  plaintiff  has  been  in  possession  of 
the  premises  for  which  he  sues,  it  will  be  suffi- 
cient for  him  to  allege  in  his  complaint  such  pos- 
session, and  the  entry,  ouster,  and  continued 
withholding  by  the  defendant.  Such  allegations 
are  proper  when  they  correspond  with  the  facts, 
but  they  are  not  essential,  as  is  thought  by  many 
members  of  the  bar.  In  this  state,  the  posses- 
sion does  not  always  accompany  the  legal  title. 
I'he  statute  authorizes  a  sale  and  conveyance  of 
land  held  adversely  by  third  persons;  and  the 
legal  title  is  frequently  held  by  parties  who  never 
had  the  possession.  In  the  courts  of  New  York 
• — and  it  is  well  known  that  the  Practice  Code 
was  taken  principally  from  the  Code  of  Procedure 
of  that  state — there  was  at  one  time  some  con- 
flict of  opinion  as  to  what  were  sufficient  allega- 
tions in  a  complaint  in  ejectment  under  the  code. 
It  is  now,  however,  settled  by  the  supreme  court 
of  that  state  substantially  in  accordance  with  the 
views  we  have  expressed.  In  Ensign  v.  Sherman, 
14  How.  Pr.  439,  the  plaintiff  averred  in  her  com- 
plaint that  she  had  lawful  title,  as  the  owner  in 
fee-simple,  to  the  real  estate  in  controversy,  which 
was  desciibed;  that  the  defendant  was  in  posses- 
sion of  it,  and  unlawfully  withheld  possession 
thereof  from  her;  and,  on  demurrer,  the  complaint 
was  held  sufficient.  Walter  y.  Lockwood,  23  Barb. 
22S,  is  to  the  same  effect.  In  Sanders  v.  Leavy, 
16  How.  Pr.  308,  the  complaint  was  similar  to  the 
complaint  in  the  cases  cited,  and  was  demurred 
to  on  the  ground  that  it  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action;  because,  first, 
it  did  not  allege  that  the  plaintiff  or  his  grantor 
was  ever  in  possession ;  and  second,  it  did  not 
allege  that  such  possession  was  disturbed  and  they 
were  evicted  by  the  defendant,  his  grantors,  or 
predecessors.  And  it  was  contended  on  the  argu- 
ment, as  in  the  case  at  bar,  that  the  allegations 
as  to  the  plaintiff's  title  and  the  defendant's  pos- 
session were  not  averments  of  facts,  but  of  con- 
clusions of  law  ;  but  the  court  held  the  complaint 
sufficient,  and  gave  judgment  against  the  de- 
murrer. "To  recover  real  estate,"  said  Mr.  Jus- 
tice Ingraham,  in  delivering  the  opinion,  "what 
is  it  necessary  for  the  plaintiff  to  prove  ?  Two 
things:  first,  that  he  is  the  owner  of  the  prop- 
erty; secondly,  that  the  defendant  withholds  from 
him  the  possession  without  right.  Both  facts  are 
plainly  averred  in  the  complaint."  The  designa- 
tion of  the  withholding  of  the  possession  by  the 
defendant,  in  the  cases  cited,  as  unlawful,  is  not 
considered  as  constituting  any  valid  ground  of  ob- 
jection. In  Sanders  v.  Leavy,  the  attention  of  the 
court  was  specially  directed,  in  the  argument  of 
counsel,  to  this  mode  of  characterizing  the  act. 
For  the  reasons  we  have  already  stated,  we  con- 
sider it  unnecessary  to  give  it  any  character  by 
special  designation;  for,  being  against  one  who 
is  seised  of  the  premises,  it  is  presumptively  ad- 
verse and  wrongful.  To  allege  that  it  is  unlaw- 
ful, is  merely  to  state  that  which  follows  under 
the  circumstances,  as  a  conclusion  of  law  from 
the  act  itself. 

The  decisions  of  this  court  in  respect  to  the 
necessary  allegations  of  a  complaint  in  ejectment 
have  not  been  uniform,  and  perh;ji)s  on  no  one 
subject  of  pleading  is  there  so  much  embarrass- 
ment felt  by  the  profession  in  coti.se(|uence.  In 
Gladwin  v.  Stebbins  (reported  as  Godwin  v.  Steb- 
bins,  in  2  Cal.  105),  the  complaint  averred  that 
the  plaintiffs  were  "lawfully  entitled  to  the  pos- 
session of  the  premises,"  and  the  court  held  that 
1  Fair. — 22 


the  allegaticjn  was  of  a  material  fact,  and  there- 
fore sufficient.  In  this  respect  we  think  the  opin- 
ion cannot  be  sustained.  The  averment  is  clearly 
a  mere  statement  of  a  conclusion  of  law.  In 
Payne  v.  Treadwell,  5  Cal.  310,  the  complaint 
alleged  that  the  plaintiffs  had  "lawful  title  as 
owners  in  fee-simple  of  the  premises,"  and  "that 
the  defendant  is  in  possession  and  unlawfully 
witliholds  the  same";  and  on  demurrer  the  court 
held  the  complaint  insufficient.  "Xotwilhsland- 
ing,"  said  Chief  Justice  Murray,  in  delivering  the 
opinion,  "our  statute  has  dispensed  with  the  old 
form  of  pleading,  and  it  is  no  longer  necessary  to 
allege  a  fictitious  demise,  etc.,  still  I  apprehend 
that  facts  sufficient  must  be  pleaded  to  show  the 
plaintiff's  right  to  recover,  and  it  will  not  do  to 
state  conclusions  of  law  in  place  thereof.  The 
allegation  that  the  defendant  is  in  possession,  and 
unlawfully  withholds  the  premises,  is  insufficient; 
it  is  a  conclusion  of  law  drawn  from  the  char- 
acter of  defendant's  possession,  the  circumstances 
of  which  should  be  stated."  The  decision,  as  is 
apparent,  does  not  relate  to  the  allegation  as  to 
the  plaintiff's  title,  notwithstanding  the  general 
observations  of  the  chief  justice;  it  applies  only 
to  the  allegation  as  to  the  withholding  of  the  pos- 
session by  the  defendant.  So  far  as  this  was 
alleged  to  have  been  unlawful,  the  allegation  was 
of  a  conclusion  of  law.  But  the  giving  of  a  cer- 
tain character  to  the  withholding,  as  unlawful,  did 
not  change  the  material  fact  that  the  possession 
was  withheld;  and  this,  as  we  have  seen,  taken 
in  connection  with  the  previous  allegations  of  title 
in  the  plaintiff,  and  possession  by  the  defendant, 
was  sulticient.  A  more  particular  statement  of 
"the  circumstances"  of  the  defendant's  possession 
or  withholding  is  not  necessary,  under  our  system 
of  practice.  The  decision,  in  this  respect,  has 
tended  to  produce  inconvenience  to  practitioners, 
and  prolixity  in  pleading,  and  we  have  no  hesita- 
tion in  overruling  it. 

In  Gregory  v.  Haynes,  13  Cal.  591,  it  was  held 
that  the  findings  by  the  court  below — that'  one  of 
the  defendants,  and  not  the  plaintiff,  was  the 
owner,  and  entitled  to  the  possession  of  the  prop- 
erty in  controversy,  and  that  the  defendants  did 
not  unlawfully  detain  the  same  from  the  plaintiff 
—would  not  support  the  judgment,  and  the  de- 
cision was  based  upon  the  ground  that  the  owner- 
ship and  right  of  possession  were  not  facts,  in  the 
legal  sense  of  that  term,  but  conclusions  of  law. 
We  have  had  great  doubt  of  the  correctness  of 
this  decision,  ever  since  it  was  rendered;  and 
upon  the  examination  which  we  have  given  to  the 
subject,  in  considering  the  case  at  bar,  we  are 
satisfied  that  we  erred,  and  are  glad  we  have  an 
opportunity,  at  so  early  a  day,  of  correcting  our 
error.  The  fact  was  found  that  one  of  the  de- 
fendants was  the  owner  of  the  premises  in  con- 
troversy, and  that  fact  alone  was  sufficient  to 
support  the  judgment  against  the  plaintiff,  nothing 
else  having  been  found  to  qualify  the  right  to  the 
possession  which  accompanies  the  title.  The  bal- 
ance of  the  findings  might  have  been  treated  as 
surplusage.  The  claim  of  the  plaintiff  having 
been  thus  disposed  of,  it  was  unnecessary  to  find 
as  to  the  character  of  the  defendants'  detention 
of  the  premises.  In  Boles  v.  Weifenback,  15  Cal. 
144,  and  Boles  v.  Cohen,  15  Cal.  150,  the  opinion 
states  that  substantial  averments  of  the  com- 
plaint were  only  that  the  plaintiffs  were  the  own- 
ers of  the  property  in  question,  and  that  the 
defendant  was  in  possession  of  it.  It  does  not 
state  that  there  was  any  averment  that  the  pos- 
session was  withheld  from  the  plaintiffs.  If  such 
averment  were  in  fact  made  in  the  complaint,  the 
decision  cannot  be  sustained.  Payne  v.  Treadwell, 
16  Cal.  243;  see  also  Payne  v.  'freadwell,  5  Cal! 
310.  When  a  complaint  will  be  treated  as  a 
declaration  in  ejectment.  See  Ramirez  v.  Murray, 
4  Cal.  293.  It  is  better  to  simplify  the  pleadings 
by  allowing  these  general  averments  in  actions  of 
ejectment  than  to  introduce  the  unnecessary  con- 
fusion which  long  and  complex  statements  of  the 
facts  must  necessarily  produce.  A  holding  over 
by  the  plaintiff  is,  in  effect,  an  ouster,  and  may 
be  so  charged.  If  in  every  case  all  the  facts 
connected  with  the  title  and  the  wrongful  acts  of 


§426 


COMPLAINT. 


338 


the  defendant  be  inserted  in  the  complaint,  the 
pleadings  would  be  swollen  to  immoderate  dimen- 
sions, without  benefit  to  the  parties.  Garrison  v. 
Sampson,  15  Cal.  95. 

Residence  of  parties  not  to  be  alleged.  Doll  v. 
Feller,  16  Cal.  432. 

Averment  of  title  in  general  terms  or  specific 
deraignment  of  title — facts  to  be  set  out  in  latter 
case.  Castro  v  Richardson,  18  Cal.  478.  Title 
or  possession  to  be  stated.  Id. ;  Steinback  v. 
Fitzpatrick,  12  Cal.  295;  Salmon  v.  Symonds,  24 
Cal.  266;  Marshall  v.  Shafter,  32  Cal.  176;  Yount 
V.  Howell,  14  Cal.  465. 

Ouster.  An  allegation  of  wrongful  withhold- 
ing of  possession  has  the  same  effect  as  an  alle- 
gation of  ouster.  Marshall  v.  Shafter,  32  Cal. 
176.  Ouster.  Wrongful  withholding  of  posses- 
sion must  be  stated.  Id.  Exact  time  of  ouster 
need  not  be  alleged.  Collier  v.  Corbett,  15  Cal. 
183.  When  ouster  is  alleged  to  have  taken  place 
before  title  accrued  to  party  ousted,  it  is  a  fatal 
defect.  See  Coryell  v.  Cain,  16  Cal.  567.  When 
prior  possession  is  claimed,  actual  ouster  must 
be  alleged.  Watson  v.  Zimmerman,  6  Cal.  46;  see 
also  Boles  v.  Cohen,  15  Cal.  150.  In  the  case  of 
Coryell  v.  Cain,  it  was  held,  that,  under  the  facts 
in  that  case,  the  complaint  should  only  have  al- 
leged, that  on  some  day  designated,  the  plaintiffs 
were  possessed  of  the  land,  describing  it;  that 
wliile  thus  possessed  the  defendant  entered  upon 
the  same  and  ousted  them,  and  has  ever  since 
withheld  the  possession  from  them,  to  their  dam- 
age— specifying  such  sum  as  might  cover  the 
value  of  the  use  and  occupation  from  the  date  of 
the  ouster.  Coryell  v.  Cain,  16  Cal.  571.  The 
mesne  conveyances,  through  which  title  is  de- 
rived, are  matters  of  evidence,  and  should  not  be 
stated  at  length  in  the  complaint.  Id.  A  con- 
tinued adverse  holding  must  be  alleged  in  com- 
plaint. Steinback  v.  Fitzpatrick,  12  Cal.  295. 
Unnecessary  description  and  evidence  of  facts 
should  be  stricken  from  complaint.  Willson 
V.  Cleaveland,  30  Cal.  192.  In  our  practice,  to 
entitle  the  plaintiff  in  ejectment  to  recover,  it  is 
only  necessary  to  establish  his  right  of  posses- 
sion and  the  occupation  of  the  defendant  at  that 
time.  The  date  at  which  plaintiff's  right  accrued 
or  the  defendant's  occupation  commenced,  is  ma- 
terial only  with  reference  to  the  claim  for  mesne 
profits.  See  Yount  v.  Howell,  14  Cal.  465;  Stark 
v.  Barrett,  15  Cal.  365.  If  action  is  for  two 
separate  pieces  of  land,  the  complaint  must  set 
out  each  of  the  two  candies  of  action  separately, 
and  each  cause  of  action  must  affect  all  the  par- 
ties to  the  action,  and  not  require  trials  to  be 
held  in  different  places.  Boles  v.  Cohen,  15  Cal. 
150.  The  complaint  may  ask,  in  addition  to  a 
recovery  of  the  property,  an  injunction,  restrain- 
ing the  commission  of  trespass  in  the  nature  of 
waste,  pending  the  action.  The  grounds  of  equity 
interposition  should  be  stated  subsequently  to 
and  distinct  from  those  upon  which  the  judg- 
ment at  law  is  claimed.  Natoma  etc.  Mining  Co. 
T.  Clarkin,  14  Cal.  544.  A  complaint  that  al- 
leges he  is  in.  possession  in  one  place,  and  in 
another  avers  that  he  is  not,  shows  no  cause  of 
action.  Dickinson  v.  Maguire,  9  Cal.  46.  A  com- 
plaint in  ejectment,  alleging  title  in  plaintiff 
under  a  sheriff's  sale,  made  by  one  sheriff,  and 
a  deed  e.xecuted  by  his  successor,  was  held  suffi- 
cient. Alderson  v.  Bell,  9  Cal.  315.  The  allega- 
tion of  the  value  of  the  use  and  occupation,  rents, 
and  profits  of  the  premises,  for  the  period  which 
the  defendants  were  in  the  wrongful  possession 
and  excluded  the  plaintiff,  is  sufficient  to  charge 
defendants,  without  any  averment  that  they  re- 
ceived such  rents  and  profiis.  The  terms  "rents 
and  profits"  are  not  here  used  in  a  technical  sense. 
The  whole  averment  is,  in  effpct,  only  that  the 
value  of  the  use  of  the  prpmis(>s.  while  plaintiffs 
were  wrongfully  excluded,  was  the  amount  stated. 
Patterson  v.  Ely.  19  Cal.  40.  As  to  actions  of 
ejectment  for  mineral  lands,  as  to  what  are  ne- 
•cessary  averments  and  sufficient  pleadings,  see 
Smith  V.  Doe,  15  Cal.  100.  The  complaint  in  an 
action  for  the  recovery  of  the  possession  of  real 
property   is   not   required   to   be   in   any   particular 


form:  it  must  be  controlled  by  the  facts  of  the 
case  which  are  sought  to  be  put  in  issue.  See 
the  matter  discussed  in  Caperton  v.  Schmidt,  26 
Cal.  490;  85  Am.  Dec.  187. 

7.  Actions  of  ejectment.  What  must  be 
averred.  The  law  in  respect  to  actions  of  eject- 
ment has  been  materially  modified  by  §  379,  ante; 
see  cases  there  cited,  and  compare  for  sufficiency 
of  pleadings.  There  is  no  room  for  doubt  that 
whenever  a  landlord  is  entitled  to  bring  an  ac- 
tion under  that  act  against  a  tenant  at  sufferance, 
after  having  given  the  requisite  notice  to  quit, 
etc.,  he  may,  instead  of  proceeding  under  that 
act',  maintain  an  action  of  ejectment.  In  such 
action  it  is  not  requisite  that  the  complaint  should 
state  the  tenancy,  its  termination,  the  notice, 
etc.;  and  when  it  appears  from  the  pleadings  that 
such  tenancy  existed,  it  will  be  presumed,  in  sup- 
port of  the  judgment  in  favor  of  the  landlord, 
that  it  was  proven  on  the  trial  that  he  had  taken 
the  necessary  steps  to  terminate  the  tenancy  be- 
fore the  commencement  of  the  action,  and  was 
then  entitled  to  recover,  unless  the  contrary  is 
shown  by  a  statement  or  a  bill  of  exceptions. 
McCarthy  v.  Yale,  39  Cal.  585. 

Complaint  in  ejectment.  Although  it  is  thought 
by  many  that  a  style  of  pleading  in  the  action 
of  ejectment  which  would  show  the  right  or  title 
under  which  the  plaintiff  claims  the  possession, 
and  the  true  position  of  the  defendant,  both  in 
respect  to  the  title  and  the  possession,  would  be 
far  preferable  to  the  present  system,  and  would 
enable  the  judgment  roll  to  exhibit  the  issues 
which  were  tried  and  determined  with  more  dis- 
tinctness and  certainty,  yet  the  present  system 
has  become  so  completely  established  that  a 
change,  if  any  is  desirable,  ought  to  come  from 
the  legislature.  The  complaint  in  this  case  al- 
leges Ihe  damages  sustained  by  the  entry  and 
withholding  of  the  possession  by  the  defendant, 
and  the  value  of  the  mesne  profits;  and  we  enter- 
tain no  doubt  that  they  are  sufticient  to  support 
the  judgment.  The  judgment  does  not  specify 
whether  the  sum  of  three  hundred  dollars  was 
awarded  for  the  damages  or  mesne  profits,  or  for 
both;  but  the  presumption  is,  that  the  judgment 
was  sustained  by  the  evidence;  and  whether  that 
sum  was  awarded  for  one  or  both  of  those  de- 
mands, the  jud?ment  is  a  bar  to  a  further  re- 
covery for  the  same  cause.  McCarthy  v.  Yale,  39 
Cal.  585;   Id.,  July  term,  1872. 

8.  Action  to  quiet  title  to  land.  It  has  been 
held  that  complaint  must  aver  that  plaintiff  was 
in  possession.  See  Pralus  v.  Jefferson  Gold  etc. 
Mining  Co.,  34  Cal.  558 ;  Brooks  v.  Calderwood, 
34  Cal.  5G3.  But  not  necessarily  so,  under  this 
code.     See  §  738,  post,  and  notes. 

9.  Where  corporations  are  plaintiffs.  It  must 
be  alleged  that  the  party  plaintiff  is  a  corpora- 
tion incorporated  under  the  laws  of  this  state, 
etc.  See  California  Steam  Nav.  Co.  v.  Wright,  6 
Cal.  258;  65  Am.  Dec.  511;  Cumberland  College  v. 
Ish,  22  Cal.  641;  see,  however,  Shoe  &  Leather 
Bank  v.  Brown,  9  Abb.  Pr.  218;  see  also  Con- 
necticut Bank  v.  Smith,  9  Abb.  Pr.  168;  see 
this  case,  also,  as  to  foreign  corporation  requir- 
ing same  allegation.  It  is  unnecessary  to  specify 
the  date  and  title  of  the  acts  amending  the  act 
incorporating  the  corporation.  It  is  sufficient  to 
designate  the  original  act  of  incorporation,  and 
refer  generally  to  the  other  acts  amendatory 
thereof.  Sun  Mutual  Ins.  Co.  v.  Dwight,  1  Hilt. 
51.  In  a  suit  brought  by  a  corporation  or  its 
assignee,  upon  an  agreement  with  the  corpora- 
tion, no  specific  allegation  of  the  incorporation 
of  the  company  is  necessary.  A  statement  of  the 
name  of  the  corporation  and  of  the  making  of  the 
agreement  between  the  defendant  and  the  com- 
pany, and  of  what  the  company  did  in  fulfill- 
ment of  the  agreement,  includes  the  idea  of  the 
legal  existence  of  the  company;  and  the  fact  of 
incorporation  is  mere  evidence  in  support  of  it, 
not  essential  to  be  particularly  stated  in  the 
pleading.  Norris  v.  Stops,  Hob.  211;  Henriques 
v.  Dutch  West  India  Co.,  2  Ld.  Raym.  1536; 
Bank  of  United  States  v.  Hask'ins.  1  Johns.  Cas. 
132;  Bennington  Iron  Co.  v.  Rutherford.  IS  N. 
J.  L.  105;  35  Am.  Dec.  528;  18  N.  J.  L.  158; 
Harris  v.  Muskingum  Mfg.  Co.,  4  Blackf.  (Ind.) 
267;   29  Am.  Dec.   372;   Richardson  v.   St.  Joseph 


S39 


CORPORATIONS — DIVORCE,   ETC. — FRAUD,   ETC. — LIENS. 


§426 


Iron  Co.,  5  Blackf.  140;  33  Am.  Dec.  4(50; 
Dutchess  Cotton  Alnnufactory  v.  IJiivis,  14  John.s. 
239;  7  Am.  Dec.  45!);  Bank  of  Utica  v.  Smalley, 
2  Cow.  770,  778;  14  Am.  Dec.  S'JG;  MicluKan 
Bank  v.  Williams,  5  Wend.  478,  482;  Kennedy 
-V.  Cotton,  2S  liarb.  59. 

10.  Pleadings  in  actious  against  corporations. 
See  precediuf;  note;  also  Californi.i  Stoam  Nav. 
Co.  V.  Wright,  (>  Cal.  258;  G'>  Am.  Dec.  511; 
Lincoln  v.  Colnsa  County,  28  Cal.  t)G2  ;  and  see 
iioti'   to   §  354,   Civ.   Code,    subd.   2. 

11.  Suits  against  corporations,  municipal  and 
others.  In  an  action  against  a  mujiicipal  corpo- 
r.ation,  the  complaint  set  out  the  bond  sued  on; 
avers  the  defendant  to  be  a  corporation;  that  the 
corporiition  made  and  delivered  the  bond  on  good 
consideration,  and  this  was  done  under  an  ordi- 
nance passed  by  the  proper  agents  of  the  corpo- 
ration, having  authority  for  that  purpose;  and 
that  the  defendant  has  failed  to  pay.  This  is 
enough,  prima  facie,  to  show  a  liability  on  the 
part  of  the  corporation.  We  see  no  more  neces- 
sity for  a  plaintiff  suing  a  corporation  on  a  note 
or  bond,  to  set  out  the  ordinance  which  em- 
powered the  corporate  authorities  to  make  the  con- 
tract, than  for  a  plaintiff,  suing  a  principal  on  a 
note  executed  by  attorney,  to  set  out  in  the  com- 
plaint the  power  of  attorney.  Nor  is  it  necessary 
to  set  out  the  vote  or  other  proceedings  of  the  cor- 
porate agents,  nor  to  give  any  further  descrip- 
tion of  the  agents  than  that  given  in  the  com- 
plaint. The  bonds  themselves  are  set  out  or 
minutely  described,  and  these  show  by  whom 
they  were  executed;  and  the  persons  signing 
them  are  averred  to  be  the  agents  of  the  corpo- 
ration, duly  empowered  for  that  purpose.  Under- 
bill V.  Trustees  of  City  of  Sonora,  17  Cal.  176. 
Tlie  complaint  was  held  to  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  Where  the 
allegation  is,  that  the  plaintiff,  as  a  justice  of 
the  peace,  performed  services,  at  the  request  of 
the  district  attorney  for  that  county,  in  cases 
Wherein  the  people  of  the  state  were  plaintiffs, 
to  the  amount  of  three  thousand  two  hundred 
dollars,  "and  that  the  defendant  thereby  became 
and  is  liable  to  pay  the  said  sum,"  there  is  no 
allegation  of  the  means  by  which  the  county 
became  liable.  It  is  not  alleged  that  the  ser- 
vices were  rendered  for  or  were  procured  by  the 
county,  or  that  the  county  received  any  benefit 
from  their  performance;  nor  is  it  stated  that 
judgments  were  rendered  in  those  cases,  nor  that 
the  defendants  in  those  actions  have  not  paid, 
or  were  unable  to  pay,  for  the  services.  Miner 
V.  Solano  County,  26  Cal.  116. 

12.  Actions  by  and  against  counties.  Counties 
are  quasi-corporations,  and  have  power  to  sue 
and  be  sued.  See  Pol.  Code,  §§  4003,  4075.  The 
right  to  sue  a  county  is  not  limited  to  cases  of 
tort,  malfeasance,  etc.,  but  is  given  in  every  case 
of  account.  See,  for  decisions  on  former  law. 
Price  v.  Sacramento  County,  6  Cal.  2  54;  McCann 
V.  Sierra  County,  7  Cal.  123.  Under  the  law 
prior  to  adoption  of  code,  the  claim  must  first 
have  been  presented  to  supervisors  and  rejected; 
and  it  is  probable  that  such  continues  to  be  the 
law  under  the  code.  See  the  sections  of  Political 
Code  above  cited,  and  also  the  cases  cited  in 
this  note. 

13.  Actions  by  and  between  husband  and  wife. 
Action  for  division  of  community  property  after 
decree  of  divorce  averments  in  complaint.  Sue 
Johnson  v.  Johnson,  11  Cal.  200;  70  Am.  Dec. 
774;  Dye  v.  Dye,  11  Cal.  163.  Action  by  wife 
to  recover  homestead  granted  away  by  husband 
alone.  Harper  v.  Forbes,  15  Cal.  202.  Suit  for 
distributive  share  of  estate  of  alleged  deceased 
husband,  averment  of  existence  of  marriage. 
Letters  v.  Cady,  10  Cal.  533;  People  v.  Ander- 
son, 26  Cal.  129.  No  allegation  of  separate 
property  is  required  in  complaint  in  an  action 
against  the  wife  for  her  separate  debt,  for  which 
she  was  liable  in  personam  before  coverture. 
Bostie  V.  Love,  16  Cal.  69.  Allegation  as  to 
married  woman  being  a  sole  trader.  Aiken  v. 
Davis,    17    f'al.    119. 

14.  Complaint  for  relief  generally  on  the 
ground  of  fraud.  Facts  constituting  the  fraud  to 
be  set  out.  Kent  v.  Snvder,  30  Cal.  066;  Porter 
v.  Hermann,  8  Cal.  62.3.  The  fraud  is  the  sub- 
stantial cause  for  action,  not  the  discovery 
thereof;  and  if  the  fraud  occurred,  before  com- 
mencing action,  more  than  the  stated  time  within 


which  actions  may  be  brought,  the  cause  of  ac- 
tion is  barred  by  the  statute  of  limitations. 
Carpentier  v.  Oakland,  30  Cal.  444;  Sublette  v. 
Tinney,  9  Cal.  423;  see,  however,  Boyd  v. 
Blankman,   29   Cul.  20;   87   .\m.   Dec.    140. 

15.  Action  to  vacate  judgment  on  ground  of 
fraud,  etc.  See  Bibend  v.  Kreutz,  20  Cal.  109; 
Snow  v.  Halstead,  1  Cal.  359;  Castle  v.  Bader, 
23  Cal.  75;  Riddle  v.  Baker,  13  Cal.  295;  Meeker 
V.  Harris,  19  Cal.  278;  79  Am.  Dec.  215;  Crano 
v.    Hirshfelder,    17   Cal.   407. 

16.  Action  to  cancel  conveyance  on  the  ground 
of  fraud.  As  to  statement  of  particular  facta 
and  circumstances,  which  may  be  required  to 
show,  on  the  face  of  complaint,  that  the  convey- 
ance was  fraudulently  made,  see  Kohner  v.  Ash- 
enauer,  17  Cal.  578.  Averment  that  grantee 
was  a  fictitious  person,  and  that  the  conveyance 
was  made  to  hinder  and  defraud  creditors.  Pur- 
kitt  V.  Polack,  17  Cal.  327.  General  averment 
of  fraud  as  to  conveyance,  that  it  was  to  hinder 
and  defraud  creditors,  etc.  See  Harris  v.  Taylor, 
15  Cal.  348;  also  Hager  v.  Shindler,  29  (,'al.  47. 
The  facts  constituting  the  fraud  must  be  defi- 
nitely and  specifically  alleged.  Castle  v.  Bader, 
23  Cal.  75;  Snow  v.  Halstead,  1  Cal.  359;  Oak- 
land V.  Carpentier,  21  Cal.  642.  So,  also,  to 
vacate  a  patent  on  the  ground  of  its  fraudulent 
procurement.  Semple  v.  Hagar,  27  Cal.  106. 
Where  a  deed  was  deposited  with  third  person, 
to  be  delivered  to  grantee,  but  grantor  sub- 
sequently directs  third  person  not  to  deliver 
deed,  it  must  be  averred  that  third  person  has 
or  is  about  to  deliver  such  deed,  or  threatens 
so  to  do.  See  Fitch  v.  Bunch,  30  Cal.  208.  Gen- 
erally as  to  averments  in  complaint,  in  action  to 
set  aside  a  conveyance,  on  ground  of  fraud,  see 
cases  above  cited,  and  also  Watts  v.  White,  13 
Cal.  321;  People  v.  Jackson,  24  Cal.  632;  Hager 
V.  Shindler,  29  Cal.  47;  De  Leon  v.  Higuera,  15 
Cal.  483. 

17.  Complaint  to  set  aside  fraudulent  convey- 
ance. In  a  suit  for  a  fraudulent  conveyance,  it 
is  not  irrelevant  or  redundant  to  set  out  in  de- 
tail the  inceptive  steps  which  culminated  in  the 
alleged  fraudulent  convevance.  Perkins  v.  Center, 
35  Cal.  714. 

18.  Complaint  to  compel  reconveyance  of  one 
of  two  tracts  of  land  granted  by  mistake.  In  an 
action  to  compel  reconveyance  of  one  of  two 
tracts  of  land  described  in  the  same  deed,  which 
it  is  averred  was  conveyed  by  mistake,  the  com- 
plaint must  show  clearly  that  a  mistake  was 
committed,  or  explain  why  the  plaintiff  included 
in  the  conveyance  the  second  tract,  after  having 
described  the  one  intended  to  be  conveyed.  Bar- 
field  V.   Price,   40   Cal.   535. 

19.  What  allegations  sufficient  for  injunctions. 
See  Bigelow  v.  Gove,  7  Cal.  135;  Tuolumne 
Water  Co.  v.  Chapman,  8  Cal.  392  ;  Knowles  v. 
Inches,  12  Cal.  212;  Henshaw  v.  Clark,  14  Cal. 
460;  Hicks  v.  Michael,  15  Cal.  107;  Head  v. 
Fordyce,  17  Cal.  149;  Hicks  v.  Compton,  18  Cal. 
206.  If  the  complaint  does  not  show  that  no 
adequate  or  complete  remedy  at  law  exists,  then 
injunction  cannot  be  granted.  Leach  v.  Day,  27 
Cal.  645;  Tomlinson  v.  Rubio.  16  Cal.  202;  De 
Witt  V.  Hays,  2  Cal.  463;  56  Am.  Dec.  352. 
See  also  McCann  v.  Sierra  County,  7  Cal.  121. 
See,  generally,  for  miscellaneous  matters  relating 
to  sufficiency  of  averments,  the  above-cited  cases, 
and  also  O'Conner  v.  Cnrbitt,  3  Cal.  370;  Hihn 
V.  Peck,  18  Cal.  640;  Smith  v.  Sparrow,  13  Cal. 
596;  Coker  v.  Simpson,  7  Cal.  340;  More  v.  Ord, 
15  Cal.  204;  McDonald  v.  Bear  River  etc.  ilin- 
ing  Co.,  15  Cal.  145;  Sanchez  v.  Carriaga,  31 
Cal.  170;  Logan  v.  Hillegass,  16  Cal.  200.  An 
allegation,  simply,  of  great  and  irreparable  in- 
jury is  insufficient;  the  facts  stated  must  show 
the  court  that  the  apprehension  of  such  injurv 
is  well  founded.  De  Witt  v.  Havs.  2  Cal.  403"; 
56  Am.  Dec.  352;  Waldron  v.  Marsh,  5  Cal.  119; 
Branch  Tnvniiike  Co.  v.  Board  of  Supervisors, 
13   Cal.   190;    Leach   v.   Day,   27   Cal.   643. 

20.  Action  to  foreclose  mortgage,  liens,  etc. 
Averments  of  ownership  of  note  and  mortgage. 
Rollins  V.  Forbes,  10  Cal.  299.  Mortgage  stipu- 
lating for  payment  of  counsel  fees,  not  exceeding 
five  per  cent  of  the  amount  due.  see  Carriere  v. 
Minturn,  5  Cal.  435.  A  general  averment,  that 
a  person  who  is  joined  as  defendant  with  mort- 
gagor has  or  claims  to  have  some  interest  in  the 
premises,     sufficient.      See    Anthony    v.     Nye,     30 


§426 


COMPLAINT. 


340 


Cal.  401;  see,  generally,  Vassault  v.  Austin,  32 
Cal.  597;  Stringer  v.  Davis,  30  Cal.  318;  Shafer 
V  l^ear  River  etc.  Mining  Co.,  4  Cal.  294;  Hunt 
V.  "Waterman,  12  Cal.  301. 

21.  Eedemption  of  mortgage.  No  alleeation 
of  tender  of  amount  due  upon  mortgage,  previous 
to  beginning  action,  need  be  made.  Daubenspeck 
V.   Piatt,   22   Cal.   330. 

22.  More  than  one  ground  of  action  stated  in 
complaint.  Action  on  contract,  etc.  It  is  neces- 
sary only  for  plaintiffs  to  state  the  facts  of  their 
case  in  ordinary  and  concise  language,  and  if 
such  facts  shovs^ed  that  they  had  a  right  of  ac- 
tion against  the  defendants,  it  is  clearly  suffi- 
cient, even  though  it  also  showed  that  they  had 
a  right  to  recover  upon  two  different  legal 
grounds.  It  may  be  (see  facts  of  case)  that  the 
plaintiffs  paid  the  money  to  the  defendants  by 
mistake,  and  also  hold  them  liable  as  indorsers 
or  guarantors.  Either  would  constitute  a  good 
cause  of  action,  and  it  does  not  make  their  com- 
plaint insufficient  because  they  have  two  grounds 
of  recovery  instead  of  one.  Mills  v.  Barney,  22 
Cal.  247. 

23.  Action  on  contract.  Complaint  on  con- 
tract for  purchase  by  defendant  of  certain  goods, 
to  aver  a  readiness  or  offer  of  delivery  or  per- 
formance.    Barron  v.  Frink,  30  Cal.  486. 

24.  Complaint  on  executory  contract.  In  Dun- 
ham V.  Pettee,  8  N.  Y.  512,  it  was  held,  that  in 
an  e.xecutory  contract  for  the  sale  of  a  quantity 
of  iron,  to  be  paid  for  on  delivery  within  a  cer- 
tain period,  the  obligations  of  the  one  party  to 
pay  and  the  other  to  deliver  were  mutual  and 
dependent;  and  that  in  an  action  by  the  seller 
for  the  price,  it  was  not  enough  simply  to  show 
the  default  of  the  purchaser,  but  that  he  must 
show  that  he  was  ready  or  offered  to  deliver  the 
property.  That  whichever  party  in  such  casb 
seeks  to  enforce  the  contract  against  the  other 
must  show  performance,  or  a  tender  of  perform- 
ance, or  a  readiness  to  perform  on  his  part;  and 
that,  until  that  is  shown,  he  himself  is  in  de- 
fault.    Barron  V.  Frink,  30  Cal.  488. 

25.  Averment  of  damages  in  complaint  for 
breach  of  contract.  In  a  suit  to  recover  dam-' 
ages  for  breach  of  a  contract,  it  is  suflicient  that 
the  complaint  alleges  the  contract,  tlie  breach 
complained  of,  and  general  damages.  Barber  v. 
Cazalis,  30  Cal.  96. 

26.  Contract  may  be  set  forth  in  complaint  in 
the  precise  terms  in  which  it  is  written,  or  ac- 
cording to  its  legal  effect.  A  contract  may  be 
declared  on  according  to  its  legal  effect,  or  in 
ha?c  verba.  If  the  former  mode  should  be  adopted, 
then  the  defendant  may,  by  the  rule  of  the 
common  law  in  a  proper  case,  crave  oyer  of  the 
instrument;  and  if  it  appear  that  its  provisions 
have  been  misstated,  he  may  set  out  the  con- 
tract in  hiec  verba,  and  demur  on  the  ground  of 
the  variance.  But  where  the  plaintiff  sets  forth 
the  contract  in  the  terms  in  which  it  is  written, 
and  then  proceeds  by  averment  to  put  a  false 
construction  upon  the  terms,  the  allegations,  as 
repugnant  to  the  terms,  should  be  regarded  as 
surplusage  to  be  struck  out  on  motion.  1  Chittv's 
Pleading,  p.  232;  Stoddard  v.  T'readwell,  26  Cal. 
300;  see  also  Joseph  v.  Holt.  37  Cal.  ^50.  And 
consideration  need  not  be  alleged  for  a  contract 
if  the  contract  be  set  out  in  complaint  in  the 
very  terms  in  which  it  is  written.  See  McCartv 
V.  Beach,  10  Cal.  461;  Wills  v.  Kempt,  17  Cal. 
101:  see  Civ.  Code,  §§1614,  1629.  A  written 
agreement  imports  consideration,  and  seals  are 
abolished. 

27.  Complaint  on  written  contract.  Joseph  v. 
Holt,    37    Cal.    250. 

28.  What  should  be  stated  in  complaint  in  an 
action  on  a  contract.  The  party  to  a  written 
contract  who  has  performed  his  part  of  it,  can 
bring  an  action  against  the  other  party  who  has 
failed  to  fulfill,  for  work  and  labor  done  and 
performed;  but  the  execution  of  the  contract,  its 
terms,  the  performance  of  the  same  on  the  part 
of  the  plaintiff,  and  the  non-performance  by  the 
other  party,  and  the  damages  sustained,  should 
be  alleged,  and  if  there  has  been  variation  from 
the  terms  of  the  written  contract  in  the  pro- 
gress of  the  work,  by  consent  of  the  parties,  that 
fact  should  also  be  averred,  and  the  perform- 
ance of  the  contract  as  varied  stated  in  the  com- 
plaint. When,  by  the  terms  of  the  contract,  the 
Darty    who    has    failed   to    fulfill    was    to    execute 


his  note  for  the  money  due,  bis  failure  to  do  to- 
should  be  averred,  for  the  ground  of  action 
against  him  is  his  failure  to  execute  the  note. 
O'Connor  v.  Dingley,  26  Cal.  17;  see  also,  for 
pleadint;s  on  contract,  Kalkman  v.  Baylis,  23 
Cal.   303. 

29.  Assignment  of  breach  of  contract  of 
guaranty.    Dabovich  v.  Emeric,  7  Cal.  209. 

30.  Complaint,  where  correction  of  mistake  in 
contract  is  sought.  If  a  material  clause  has  been 
omitted  by  mistake  in  drawing  up  a  contract,  a 
party  seeking  to  avail  himself  of  the  actual  con- 
tract must  obtain  a  reformation  of  the  writing, 
by  a  distinct  proceeding  to  reform  it,  or  by 
specially  pleading  the  mistake  in  the  suit  in 
which  the  contract  is  pleaded,  and  asking  its 
correction  as  independent  relief.  Under  a  plead- 
ing which  simply  states  the  terms  of  a  con 
tract,  the  introduction  of  a  written  agreement 
respecting  the  subject-matter  cannot  be  followed 
by  oral  'proof  of  a  material  clause  alleged  to- 
have  been  omitted  by  mistake  from  the  writing. 
Pierson   v.   McCahill,   21    Cal.   122. 

31.  Action  upon  an  assignment  of  contract.  If 
an  action  be  brought  on  an  assignment  of  a  con- 
tract to  one  party  by  another,  the  pleadings 
should  at  least  have  alleged  a  positive  transfer 
or  assignment,  and  the  character  of  it,  so  that 
the  other  party  might  be  put  upon  notice  of  what 
he  had  to  meet.    Stearns  v.  Martin,  4  Cal.  229. 

32.  The  performance  of  conditions  precedent 
must  be  alleged.  And  if  not  alleged,  the  failure 
to  do  so  must  be  taken  advantage  of  by  de- 
murrer in  the  lower  court.  The  defect  cannot 
be  shown  after  verdict  rendered.  Happe  v.  Stout^ 
2  Cal.  462 

33.  Waiver  of  tort.  As  to  waiver  of  tort  and 
maintenance  of  action  upon  other  grounds,  see 
Lubert  v.  Chauviteau,  3  Cal.  458;  58  Am.  Dec. 
415;  Miller  v.  Van  Tassel,  24  Cal.  463.  But  so, 
nlso,  if  the  failure  to  comply  with  a  contract  is 
a  tort,  the  party  aggrieved  may  bring  an  action 
in  tort,  instead  of  an  action  upon  the  contract. 
Sheldon  v.  Steamship  Uncle  Sam,  18  Cal.  526; 
79   Am.   Dec.    193. 

34.  Assumpsit.  Waiver  of  tort.  If  personal 
propei'.ty  has  been  wrongfully  taken,  the  tort  may- 
be waived  and  an  action  in  nature  of  assumpsit 
be  maintained  for  the  recovery  of  the  value  of 
the  property  so  taken.  Pratt  v.  Clark,  12  Cal. 
89. 

35.  Action  of  trover.  See  Pelberg  v.  Gor- 
ham,  23  Cal.  349;  Nickerson  v.  California  Stage 
Co.,  10  Cal.  520.  Conversion  is  the  gist  of  the 
action  of  trover,  and  must  be  alleged.  Rogers  t. 
Huie,  2  Cal.  571;   56  Am.  Dec.  363. 

36.  Complaint  in  replevin.  Lazard  v.  Wheeler, 
22  Cal.  139  :  lialleck  v.  Mixer,  16  Cal.  574. 

37.  Complaint  in  actions  to  recover  property 
seized  by  sheriff  under  process.  See  §  689,  post; 
see  also  Ghiradelli  v.  Bourland,  32  Cal.  585; 
Kendall  v.  Clark,  10  Cal.  17;  70  Am.  Dec.  691; 
Towdy  V.  Ellis,  22  Cal.  650;  Killey  v.  Scannell, 
12  Cal.  73. 

38.  Condition  precedent  to  be  alleged.  If  the 
payment  of  a  promissory  note  is  agreed  by  the 
parties  to  be  made  conditional  upon  the  payment 
by  the  payee  of  a  certain  debt  of  the  payor,  such 
payment  is  a  condition  precedent,  and  must  be 
alleged  in  complaint  to  have  been  made,  or  plain- 
tiff's right  of  action  on  the  note  is  demurrable. 
Rogers  v.   Cody,   8   Cal.   32-1. 

39.  Complaints  in  action  for  purchase-money 
for  goods  sold  and  delivered.  The  sale  and  de- 
livery of  the  goods  to  the  defendant,  the  place 
and  the  manner  in  which  the  indebtedness  ac- 
crued, and  whether  it  was  on  account  of  defend- 
ant or  another,  must  be  alleged.  Mershon  v. 
Randall,  4  Cal.  324.  Also,  the  amounts  due  sev- 
erally for  either  goods  or  money.  Cordier  ▼. 
Schloss,  18  Cal.  576.  It  is  a  sufficient  allesation. 
which  states  that  defendant  is  indebted  to  plain- 
tiff in  a  certain  sum  for  goods  sold  and  delivered 
to  him  at  his  reriuest,  and  that  defendant  has 
never  paid  for  them.  Abadie  v.  Carrillo,  32  Cal. 
172  An  allegation  setting  forth  that  plaintiffs 
had  purchased  "a  quantity  of  malt  from  P.  &  W., 
then  and  there  acting  as  the  agents  of  defend- 
ant." is  only  another  form  of  declaring  that  they 
had  purchased  from  the  defendant.  It  is  suffi- 
ciently certain  to  prevent  any  misapprehension 
of  its  meaning,  and  is  no  good  cause  for  de- 
murrer.   Cochran  v.  Goodman,  3  Cal.  245. 


Ml 


DEMAND   AND   REFUSAL — CONSPIRACY — DAMAGES. 


§426 


40.  Facts  which  must  be  stated  in  complaint 
■Jn  such  action.  The  nuuphunt  contains  several 
•cijuiit.s,  whicli  art'  in  tlie  ordinary  form  of  counts 
in  indt'bitatus  assumpsit,  for  ^oods  sold  and  de- 
livered, and  money  paid  and  expended;  and  it  is 
objected  to,  not  by  demurrer,  but  after  answer, 
as  defective  in  not  stating  facts  sufficient  to  con- 
stitute a  cause  of  action.  The  objection  is  not 
well  taken.  The  complaint  is  sutTn'ient  in  its 
allegations,  and  if  they  were  deemed  too  gen- 
oral,    the    defendant    could    have    ai)plied    for    and 

■obtained  an  order  upon  the  plaintiffs  to  furnish 
a  bill  of  particulars.  It  states  a  promise  by  the 
defendant,     and     its     consideration     and     breach. 

-Alien  V.  Patterson,  7  N.  Y.  476;  57  Am.  Dec. 
342;  Beekman  v.  Platner,  15  Barb.  550;  Adam 
V.  Holley.  12  How.  Pr.  326;  Cudlipp  v.  Whipple, 
1  Abb.  Pr.  107;  Freeborn  v.  Glazer,  10  Cal. 
338. 

41.  Complaint  in  action  for  moneys  had  and 
received,  loaned  or  paid  out,  etc.  If  the  action 
is  for  money  had  and  received  to  the  use  of  the 
plaintiff,  and  the  facts  stated  in  the  complaint 
show  clearly  that  the  defendants  are  in  posses- 
sion of  money  which,  in  equity  and  conscience, 
they  are  bound  to  pay  over,  it  is  not  demurrable. 
Kreutz  v.  Livingston,  15  Cal.  346.  A  demand 
must  be  alleged  in  the  complaint.  Reina  v.  Cross, 
6  Cal.  31.  Where  the  complaint  shows  the  de- 
mand to  be  barred  by  the  statute  of  limitations, 
it  is  demurrable.  See  Keller  v.  Hicks,  22  Cal. 
457 ;  83  Am.  Dec.  78.  Averments  in  action  to 
recover  money  loaned.  See  Lambert  v.  Slade,  3 
Cal.  330.  And  it  was  held  that  in  an  action  to 
recover  money  laid  out  and  expended  for  another's 
benefit,  the  complaint  stated  a  sufficient  cause  of 
action,  which  averred  that  defendant  was  justly 
dndebted  to  plaintiff  in  the  sum  of  three  thousand 
dollars,  for  money  paid,  laid  out,  and  expended 
for  the  use  and  benefit  of  defendant,  and  at  his 
special  instance  and  request,  to  wit,  at,  etc.,  and 
on  the  first  day  of  April,  1857,  and  in  the  sum 
of  three  thousand  dollars,  for  money  found  to  be 
■  due  from  the  defendant  to  plaintiff  on  an  ac- 
count then  stated  between  them,  and  the  defend- 
ant being  so  indebted  to  the  plaintiff,  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the 
place  aforesaid,  undertook  and  faithfully  prom- 
ised the  plaintiff  to   pay   the   same,   etc.,   and  that 

•said  sum  is  due  and  unpaid.  De  Witt  v.  Porter, 
13   Cal.    171.      An    averment  in   a   complaint,    that 

•  defendant  owes  plaintiff  a  certain  sum  for  pro- 
fessional services  rendered  at  a  certain  lime,  at 
defendant's  request,  is  sufficient,  without  alleging 
the  value  of  the  services,  or  defendant's  promise 
to  pav  therefor.  Wilkins  v.  Stidger,  22  Cal.  235; 
83  Am.  Dec.  64. 

42.  Money  had  and  received.  A  complaint 
for  money  had  and  received  must  allege  a  de- 
mand, or  it  is  demurrable.  Greenfield  v.  Steamer 
■Gunnell.  6  Cal.  68. 

43.  When  tender  of  purchaEe-money  is  to  be 
averred.  In  an  action  for  non-delivery  of  pro- 
duce contracted  for  and  to  be  delivered  on  demand 
and  upon  payment,  it  is  not  necessary  to  aver 
an  actual  tender;  an  averment  that  plaintiff  was 
ready  and  willing   to   receive   and   pay   for   it   was 

:Sufricient.  1  Parsons  on  Contracts,  p.  449;  Crosby 
V.  Watkins,   12  Cal.   88. 

44.  When  a  demand  must  be  averred.  An  al- 
legation that  defendant  sold  to  plaintiffs  certain 
produce,  and  after  the  sale  executed  a  guaranty 
that  the  share  of  plaintiffs  should  be  at  their 
disposal,  and  stating  that  a  demand  for  the  same 
and  the  refusal  of  the  defendant  to  deliver,  is 
demurrable,  as  it  should  have  contained  an  as- 
signment of  the  breach  of  the  contract  of  guar- 
anty, for  the  material  point  at  issue  is,  whether 
the  defendant  undertook  to  deliver.  In  this  case 
the  sale  operated  as  a  delivery.  There  was  no 
necessity  of  a  demand  on  defendant,  unless  for 
the  purpose  of  enabling  him  to  comply  with  his 
guaranty.     Dabovich  v.   Emeric,   7   Cal.   212. 

45.  Averment  of  a  refusal  to  execute  a  deed. 
It  was  held  that  the  failure  to  aver  refusal  is 
fatal  to  the  action,  and  may  be  taken  advantage 
of  on  the  ground  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion. (See  facts.)  Dodge  v.  Clark.  17  Cal.  586. 
A    refusal,    or    a    breach    of    a    contract,    must    be 

iStated  in  direct,  plain,  and  unequivocal  words. 
3Ioore  v.  Besse.   30   Cal.   570. 

46.  When  and  how  papers  and  records  can  be 


made  part  of  a  pleading.  Records  and  papers 
cannot  be  made  a  part  of  a  pleading  by  merely 
referring  to  them,  and  praying  that  they  may  be 
taken  as  a  part  of  snch  pleading,  without  annex- 
ing the  originals  or  copies  as  exhibits,  or  incor- 
porating them  with  it,  so  as  to  form  a  part  of 
the  record  in  the  cause.  People  v.  De  la  Guerra, 
24  Cal.  78.  In  an  action  to  foreclose  a  mort- 
gage, the  complaint  referred  to  a  copy  of  the 
mortgage  annexed,  and  referred  thereto  for  a 
correct  description  of  the  land,  and  this  was  held 
sufficient  for  the  purposes  of  the  action.  See 
Emeric  v.  Tarns,  6  Cal.  155. 

47.  Complaints  in  actions  to  compel  an  account. 
In  an  action  to  compel  an  account,  a  comi)laint 
is  sufiicient  to  entitle  plaintiff  to  a  decree  direct- 
ing an  account  which  alleges  that  plaintiff  and 
defendants  are  parties  in  a  company  known  as 
the  "Miners'  Ditch  Company";  that  defendants 
exclude  plaintiff  from  participation  in  the  busi- 
ness or  benefit  from  it;  that  they  have  received 
large  sums  of  money  from  the  same,  and  refuse 
to  account  or  pay  him  anything,  etc.  Smith  v. 
Fagan,  17  Cal.  178.  A  request  for  and  refusal 
to  account  must  be  alleged  in  complaint.  Bush- 
nell  V.  McCauley,  7  Cal.  421.  A  complaint  in 
an  action  for  rents  and  proceeds  from  the  leasing 
and  the  sale  of  certain  property  containing  .-in 
averment,  in  general  terms,  that'  a  copartnership 
exists  as  to  the  property  between  plaintiff'  ami 
defendants,  without  averring  any  partnership 
agreement,  and  then  states  that  plaintiff  acquired 
his  interest  in  the  property  by  the  purchase  of 
an  undivided  interest  from  other  persons  than 
defendants,  does  not  state  facts  sufficient  either 
for  a  dissolution  and  settlement  of  the  affairs  of 
a  partnership,  or  for  a  partition.  Bradley  v. 
Harkness,    26   Cal.   69. 

48.  Complaint  in  actions  to  recover  specific 
personal  property.  Complaint  will  be  held  de- 
fective if  it  appears  that  defendant  came  right- 
fully to  the  possession  of  the  property,  and  no 
averment  is  made  of  demand  and  refusal  to  de- 
liver the  property.  Campbell  v.  Jones,  38  Cal. 
508. 

49.  Demand  and  refusal,  how  pleaded.  An 
averment  that  defendant  "has  failed,  refused,  and 
neglected  so  to  return"  the  property  sued  for,  is 
not  an  allegation  of  the  special  and  formal  de- 
mand and  refusal  to  deliver,  required  in  actions 
to  recover  specific  personal  property.  Campbell 
V.  Jones,  38  Cal.  508. 

50.  Complaint  In  an  action  for  conspiracy. 
Where  two  or  more  persons  are  sued  for  a  wrong 
done,  it  may  be  necessary  to  prove  a  previous 
combination,  in  order  to  secure  a  joint  recovery; 
but  it  is  never  necessary  to  allege  it,  and  if 
alleged,  it  is  not  to  be  considered  as  the  gist 
of  the  action.  That  lies  in  the  wrongful  and 
damaging  act  done.  Herron  v.  Hughes,  25  Cal. 
560. 

51.  Pleadings  in  actions  for  damages.  What 
must  be  averred.  See  Tuolumne  County  Vv'ater 
Co.  V.  Columbia  etc.  Water  Co.,  10  Cal.  193; 
Hoffman  v.  Tuolumne  County  Water  Co.,  10  Cal. 
413;  see  also  Hanson  v.  Webb,  3  Cal.  236. 
Grounds  of  damages  to  be  specially  averred. 
Stevenson  v.  Smith,  28  Cal.  102;  87  Am.  Dec. 
107.  So,  also,  for  loss  of  time,  compensation 
for  wages  paid,  etc.  Dabovich  v,  Emeric,  12  Cal. 
171.  And  if  treble  damages  be  given  by  statute, 
such  must  be  stated,  or  statute  recited  in  plead- 
ings.   Chipman  v.  Emeric,  5  Cal.  239. 

52.  Complaint  in  action  for  damages.  This 
case  was  for  damages  sustained  by  the  plaintiff, 
by  reason  of  the  refusal  of  the  defendant,  sheriff 
of  Siskiyou  County,  to  execute  to  him  a  deed  for 
land  bought  at  public  sale;  but  the  complaint  is 
fatally  defective  in  this,  that  it  alleges  special 
damages  arising  from  the  inability  to  get  rents 
and  profits  from  the  estate,  a  tavern  in  Yreka, 
without  averring  that  the  defendant  in  execution 
had  any  title  to  the  premises,  or  that  the  plain- 
tiff, if  the  sheriff  had  made  him  a  deed,  would 
have  been  either  entitled  to  receive  or  been  able 
to  recover  jiossession  of  the  property,  or  rents,  or 
profits.     Knight   v.   Fair,   12  Cal.   297. 

53.  Complaint  in  suit  for  damages  against  com- 
mon carrier.  It  is  unnecessary  to  state  a  tender 
of  fare.  An  allegation  of  the  plaintiff's  readi- 
ness and  willingness  to  pay  the  carrier  th.e  legal 
amount  of  fare  is  sufficient.  Tarbell  v.  Central 
Pacific  R.  R.  Co.,  34  Cal.  622. 


§42G 


COMPLAINT. 


342 


64.  Damages  for  diversion  of  water.  McDonald 
T.  Bear  River  etc.  Mining  Co.,  15  Cal.  145; 
Gale  V.  Tuolumne  Water  Co.,  14  Cal.  25;  Leigh 
Co.  V.  Independent  Ditch  Co.,   8   Cal.   323. 

55.  Actions  for  damage  or  trespass.  The  words, 
"with  force  and  arms,  lircike  and  entered,"  do 
not  confine  the  proof  to  the  direct  and  immediate 
damages,  in  the  same  manner  as  in  the  old 
action  uf  trespass,  and  the  tacts  being  clearly 
set  out  in  the  complaint,  the  addition  of  these 
words  is  surplusage.  Darst  v.  Rush,  14  Cal.  81. 
Averment  of  possession  to  sustain  complaint  for 
trespass.  McCarron  v.  OXonnell,  7  Cal.  152. 
As  to  matters  generally,  see  Gates  v.  Kiefif,  7 
Cal.  124. 

56.  Damages  for  infringement  on  franchise.  In 
an  action  to  recover  damages,  by  the  owner  of  a 
licensed  ferry,  against  a  party  alleged  to  have 
run  a  ferry  withiu  the  limits  prohibited  by  lavv', 
it  was  held  that  the  complaint  should  have  al- 
leged that  defendant  ran  his  ferry  for  a  fee  or 
reward,  on  the  promise  or  expectation  ■  of  it,  or 
that  he  ran  it  for  other  than  his  own  personal 
use  or  that  of  his  family;  that  the  omission  of 
those  allegations  was  fatal.  Hanson  v.  Webb,  3 
Cal.  237. 

57.  Complaint  in  action  of  account  between  co- 
tenants.  The  complaint  avers  a  tenancy  in  com- 
mon between  the  parties;  the  sole  and  exclusive 
possession  of  the  premises  by  the  defendant;  the 
receipt  by  him  of  the  rents,  issues,  and  profits 
thereof;  a  demand  by  the  plaintilf  of  an  account 
of  the  same,  and  the  payment  of  his  share ;  the 
defendant's  refusal;  and  that  the  rents,  issues, 
and  profits  amount  to  eighty-four  thousand  dol- 
lars. These  averments,  and  not  the  form  in  which 
the  prayer  for  judgment  is  couched,  must  deter- 
mine the  character  of  the  pleading.  The  com- 
plaint is  designated  a  bill  in  equity;  but  the 
designation  does  not  make  it  such.  There  are  no 
special  circumstances  alleged  which  withdraw  the 
case  from  the  ordinary  remedies  at  law,  and  re- 
quire the  interposition  of  equity.  The  action  is 
a  common-law  action  of  account,  and,  viewed  in 
this  light,  the  complaint  is  fatally  defective.  It 
does  not  aver  that  the  defendant  occupied  the 
premises  upon  any  agreement  with  the  plaintiff, 
as  receiver  or  bailiff  of  his  share  of  the  rents 
and  profits.  It  is  essential  to  a  recovery  that 
this  circumstance  exists,  and  equally  essential  to 
the  complaint  that  it  be  alleged.  Pico  v.  Colum- 
bet,  12  Cal.  419;   73  Am.  Dec.  550. 

58.  Suits  for  divorce.  What  must  be  averred. 
In  an  action  for  divorce  on  the  ground  of  adul- 
tery, the  charge  should  have  been  stated  with 
reasonable  certainty  as  to  time  and  place,  so  as 
to  have  enabled  the  defendant  to  prepare  to  meet 
it   on   the   trial.     Conant   v.   Conant,    10    Cal.   254; 

70  Am.  Dec.  717.  The  information  should  ex- 
tend to  the  particular  place  or  locality  where  it 
occurred,  though  the  name  of  the  person  with 
whom  may  be  unknown.  Conant  v.  Conant,  10 
Cal.  254;  70  Am.  Dec.  717;  see  also  Codd  v.  Codd, 
2  Johns.  Ch.  224;  Wood  v.  Wood,  2  Paige,  118; 
Richards  V.  Richards,  V/right  (Ohio),  302;  Stokes 
V.  Stokes,  1  Mo.  322;  Wright  v.  Wright,  3  Tex. 
168.  Averment  of  residence  in  state  for  six 
months  before  applying  for  divorce.  Civ.  Code, 
§128;  Bennett  v.  Bennett,  28  Cal.  599;  see,  gen- 
erally,  Civ.  Code,  §§  82-148,  inclusive,  and  notes. 

59.  Complaint  averring  failure  or  insuflaciency 
of  consideration.  See  Keller  v.  Hicks,  22  Cal. 
457:  S3  Am.  Dee.  78.  But  a  partial  failure  of 
consideration  cannot  be  pleaded.  See  Reese  v. 
Gordon,   19  Cal.   147. 

60.  Actions  on  notes,  bills  of  exchange,  etc. 
Complaint  upon  promissory  note  should  allege 
the  non-payment  thereof,  not  that  a  certain 
amount   is   due  thereon.     Frisch   v.   Caler,    21    Cal. 

71  ;  Brown  v.  Orr,  29  Cal.  120.  Where  com- 
plaint stated  that  defendant  made  and  delivered 
note  to  plaintiff,  a  further  allegation,  that  plain- 
tiff "is  still  the  owner  and  holder  of  the  note," 
is  a  conclusion  of  law.  See  Wedderspoon  v. 
Rogers,  32  Cal.  569.  A  complaint,  which  re- 
gards the  maker  and  the  guarantor  of  a  note  as 
joint  makers,  and  contains  no  allegation  of  de- 
mand and  notice,  is  demurrable.  Lightstone  v. 
Laurencel,  4  Cal.  277.  In  a  suit  against  the 
maker  of  a  note,  or  the  acceptor  of  a  bill  of  ex- 
change, where  the  place  of  payment  is  fixed,  an 
averment  of  presentment  at  that  place,  and  re- 
fusal   to    pay,    is    unnecessary.     Montgomery    v. 


Tutt,  11  Cal.  307.  No  allegation  of  a  promise  in 
writing  is  required  in  a  suit  brought  upon  a 
promise  made  by  the  defendant  to  accept  a  dralt 
which  another  might  draw  to  him.  Wakefield  v. 
Greenhood.  29  Cal.  597.  An  indorser  of  a  note, 
payable  on  demand,  demand  not  being  made  until 
tnirteen  months  after  the  indorsement  to  plain- 
tiff, is,  prima  facie,  not  liable.  The  delay  is 
unreasonable.  In  such  case,  tacts  to  excuse  the 
delay  are  an  essential  part  of  the  complaint,  and 
must  be  alleged.  Jerome  v.  Stebbins,  14  Cal. 
457.  Where  demand  is  barred,  new  promise  to 
be  alleged.    Smith  v.  Richmond,  19  Cal.  476. 

61.  Pleading  statute  of  limitation.  New  prom- 
ise, etc.  See  note  to  §  312,  aijte ;  see  also,  par- 
ticularly, §  458,  post. 

62.  Actions  upon  undertakings.  Description  of 
the  bond  in  complaint.  Mills  v.  Gleason,  21  Cal.. 
274;  Morgan  v.  Thrift,  2  Cal.  562;  Baker  v. 
Cornwall,  4  Cal.  15.  Action  for  breach,  no 
notice  to  defendant  need  be  averred.  People  v.. 
Edwards,  9  Cal.  286.  Undertaking  on  appeal. 
Tissot  v.  Darling,  9  Cal.  278.  Bond  for  release 
of  property  attached.  Palmer  v.  Melvin,  6  Cal. 
651;  McMillan  v.  Dana,  18  Cal.  339;  William- 
son v.  Blattan,  9  Cal.  500.  Actions  against 
sureties  on  injunction  bonds.  Tarpey  v.  Shillen- 
berger,  10  Cal.  390;  Lally  v.  Wise,  28  Cal.  540. 
Recognizance  under  Penal  Code.  People  v.  Smith, 
18  Cal.  498;  Mendocino  County  v.  Lamar,  30 
Cal.  627.  Undertaking  given  in  replevin  suit. 
Clary  v.  Rolland,  24  Cal.  147;  Mills  v.  Gleason,. 
21  Cal.  274. 

Actions  on  official  bonds  Averments  in  com- 
plaint. Mendocino  County  v.  Morris,  32  Cal. 
145;  Ghiradelli  v.  Bourland,  32  Cal.  585;  Van. 
Pelt  V.  Littler,  14  Cal.  194;  Sacramento  County 
V.  Bird,  31  Cal.  66. 

63.  Action  for  collection  of  taxes.  People  v. 
Pico,  20  Cal.  595;  People  v.  Holladay,  25  CaL 
300. 

64.  Claims  against  estates  of  decedent's  execu- 
tors and  administrators.  The  failure  of  plaintiff 
to  aver  in  complaint,  in  an  action  upon  a  claim 
against  an  estate,  its  presentation  to  and  rejec- 
tion by  the  administrator,  is  an  objection  that 
is  demurrable  on  the  ground  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.  Ellissen  v.  Halleck,  6  Cal.  393; 
Falkner  v.  Folsom's  Executor,  6  Cal.  412; 
Hentsch  v.  Porter,  10  Cal.  558;  but  these  cases 
are  overruled  by  Fallon  v.  Butler,  21  Cal.  24; 
81  Am.  Dec.  140;  and  the  correctness  of  the 
latter  decision  is  questioned  in  Ellis  v.  Polhemus, 
27  Cal.  354.  The  case  of  Ellissen  v.  Halleck,  C 
Cal.  393.  is  referred  to  in  the  following  cases: 
Falkner  v.  Folsom's  Executor,  6  Cal.  412;  Mc- 
Cann  v.  Sierra  County,  7  Cal.  123;  Williamson 
V.  Blattan,  9  Cal.  500;  Piercy  v.  Sabin,  10  Cal. 
30;  70  Am.  Dec.  692;  Willis  v.  Farley,  24  Cal.- 
498. 

65.  Complaint  by  or  against  executor,  etc. 
Complaint  must  allege  that  executor  is  entitled 
to  sue  in  that  capacity;  or  if  suit  is  against  an 
administrator,  the  complaint  must  show  that  the 
party  sued  was  appointed  and  was  acting  in  such 
capacity.    Barfield  v.  Price,  40  Cal.   ?<^H. 

66.  Complaint  against  absent  debtor.  If  the- 
plaintiff  desire  to  subject  the  assets  of  an  absent 
debtor  to  the  payment  of  his  claim,  he  must 
show  that  he  is  without  a  remedy  at  law  ;  and  if 
the  complaint  discloses  such  remedy  at  law,  it- 
will  be  dismissed  upon  demurrer.  Lupton  v. 
Lupton,   3   Cal.  120. 

67.  Filing  supplemental  complaint.  It  was. 
held  that  it  is  no  objection  to  a  supplemental, 
complaint  that  it  prays  for  a  different  relief, 
and  fails  to  bring  in  all  the  other  creditors,  who- 
are  alleged  by  the  defense  as  entitled  to  a  rat- 
able distribution.  (See  facts.)  Baker  v.  Bartol,. 
6    Cal.    483. 

6S.  Demand  for  relief.  See  §  580,  post.  The 
court  will  grant  such  relief  as  the  facts  stated. 
in  the  complaint  will  justify.  People  v.  Turner, 
1  Cal.  152:  Truebody  v.  Jacobson,  2  Cal.  269; 
Rollins  V.  Forbes,  10  Cal.  299.  A  complaint  in 
trespass  may  conclude  with  a  demand  for  in- 
junction. Gates  v.  Kieff,  7  Cal.  125.  So,  also, 
where  action  is  brought  to  test  priority  of  ap- 
propriation of  water.  Marius  v.  Bicknell,  10 
Cal.  217.  Demand  for  treble  damages  must  be 
expressly  inserted.  How  inserted.  See  Chip- 
man  v.  Emeric,  5  Cal.  239. 


343  STATEMENT — DIVORCE — CAUSES  OF  ACTION  UNITED.         §§  426a,  427 

§  426a.  Statement  of  facts  in  divorce  complaint.  Tn  an  action  for  divorce 
the  complaint  must  set  forth,  for  the  statistics  required  to  be  eollocted  by 
the  state  bureau  of  vital  statistics,  among  other  matters  as  near  as  can  be 
ascertained  the  following  facts: 

(1)  The  state  or  country  in  which  the  parties  were  married. 

(2)  The  date  of  marriage. 

(3)  The  date  of  separation. 

(4)  The  number  of  3'ears  from  marriage  to  separation. 

(5)  The  number  of  children  of  the  marriage,  if  any,  and  if  none,  a  state- 
ment of  that  fact. 

(6)  The  ages  of  the  minor  children. 

Legislation  §  426a.     Added    by    Stats.     1913, 
p.   232. 

§  427.  What  causes  of  action  may  be  joined.  The  plaintiff  may  unite 
several  causes  of  action  in  the  same  complaint,  where  they  all  arise  out  of : 

1.  Contracts,  express  or  implied ; 

2.  Claims  to  recover  specific  real  property,  with  or  without  damages  for 
the  withholding  thereof,  or  for  waste  committed  thereon,  and  the  rents  and 
profits  of  the  same ; 

3.  Claims  to  recover  specific  personal  property,  with  or  without  damages 
for  the  withholding  thereof; 

4.  Claims  against  a  trustee  by  virtue  of  a  contract  or  by  operation  of  law ; 

5.  Injuries  to  character; 

6.  Injuries  to  person; 

7.  Injuries  to  property ;  " 

8.  Claims  arising  out  of  the  same  transaction,  or  transactions  connected 
with  the  same  subject  of  action,  and  not  included  within  one  of  the  fore- 
going subdivisions  of  this  section. 

The  causes  of  action  so  united  must  all  belong  to  one  only  of  these  classes, 
and  must  affect  all  the  parties  to  the  action,  and  not  require  different  places 
of  trial,  and  must  be  separately  stated;  but  an  action  for  malicious  arrest 
and  prosecution,  or  either  of  them,  may  be  united  with  an  action  for  either 
an  injury  to  character  or  to  the  person;  provided,  however,  that  in  any  ac- 
tion brought  by  the  husband  and  wife,  to  recover  damages  caused  by  any 
injury  to  the  wife,  all  consequential  damages  suffered  or  sustained  by  the 
husband  alone,  including  loss  of  the  services  of  his  said  wife,  moneys  ex- 
pended and  indebtedness  incurred  by  reason  of  such  injury  to  his  said  wife, 
may  be  alleged  and  recovered  without  separately  stating  such  cause  of 
action  arising  out  of  such  consequential  damages  suffered  or  sustained  by 
the  husband;  provided,  further,  that  causes  of  action  for  injuries  to  person 
and  injuries  to  property,  grov,ing  out  of  the  same  tort,  may  be  joined  in 
the  same  complaint,  and  it  is  not  required  that  they  be  stated  separately. 

Legislation  §  427.         1.   Enacted      March      11,  out    in    1913);     (2)    in   final    paragraph,    adding 

1872;    based    on    Practice   Act,  §  64    (New   York  the  second  proviso. 

Code,  §  167),  as  amended  by  Stats.  1855,  p.  196.  Joindpr   of   rant!f>«5   of  nrtion    in    p-enpral 

The  changes   therefrom  are  noted   infra.  m,          ,    •      "I.  ^^^^^^   °^    aCtlon,    111    general. 

3.  Amendment  by  Stats.   1901,  p.   133;  un-  J- be  plaintiff  may  unite  several   causes   of 

constitutional.     See  note  ante,  §  5.  action,   where   all   the   matters   complained 

subd    8°^'^'"^'"^  ^^  ^*''*®-  *^<*'^'  P-  "^OS,  adding  of  ^re  parts  of  one  transaction  (Pfister  v. 

^"4."  Amended  by  Stats.  1913,  p.  219,    (1)   in  Dascey,  65   Cal.  403;   4  Pac.   393;   Kyle  v. 

introductory   paragraph,   striking   out   "they,"   be-  Craig,   125   Cal.    107;   57  Pac.   791);   and  the 

fore    "all   arise";    (2)    adding   the   first   proviso  fact  that  both  legal  and  equitable  causes 

to  the  end  of  the  final  paragraph.  ^        j.-                   •    •       j     i                ^             1     ]      iu 

5.  Amended  by  Stats    1915,  p.  30,  (1)  in  in-  ^^  action  are  jomed  QOes  not  preclude  the 

troductory  paragraph,  inserting  "they"  (stricken  Court  from  granting   the    relief   warranted 


§427 


COMPLAINT. 


344 


by  the  facts.  Gray  v.  Dougherty,  25  Cal. 
266.  It  is  the  settled  practice  in  equity, 
in  order  to  avoid  a  multiplicity  of  suits, 
to  allow  suit,  in  the  same  action,  for 
every  species  of  relief  necessary  to  secure 
the  rights  of  the  plaintiff  in  the  subject- 
matter.  Doudell  V.  Shoo,  20  Cal.  App.  424; 
129  Pac.  478.  There  is  no  requirement  in 
the  code  that  distinct  causes  of  action 
shall  correspond  to  or  be  consistent  with 
each  other.  Cowan  v.  Abbott,  92  Cal.  100; 
28  Pac.  213.  Causes  of  action  cannot  be 
united,  except  when  authorized  by  stat- 
ute (Smith  V.  Omnibus  E.  E.  Co.,  36  Cal. 
281;  Dyer  v.  Barstow,  50  Cal.  652;  Rey- 
nolds V.  Lincoln,  71  Cal.  183;  9  Pac.  176; 
12  Pac.  449;  Stark  v.  Wellman,  96  Cal. 
400;  31  Pac.  259;  Mallory  v.  Thomas,  98 
Cal.  644;  33  Pac.  757;  Thelin  v.  Stewart, 
100  Cal.  372;  34  Pac.  861);  and  although 
expressly  authorized,  yet  the  plaintiff  is 
not  compelled  to  unite  them.  Eealty  Con- 
struction etc.  Co.  V.  Superior  Court,  156  Cal. 
543;  132  Pac.  1048.  Damages  arising  from 
single  wrongs,  though  at  dift^ereut  times, 
make  but  one  cause  of  action.  Hall  v. 
Susskind,  109  Cal.  203;  41  Pac.  1012.  A 
demurrer  is  properly  sustained  to  a  com- 
plaint which  shows  a  misjoinder  of  causes  of 
action  aud  of  parties.  Lapique  v.  Munroe, 
19  Cal.  App.  253;  125  Pac.  760. 

Causes  of  action  ajrising  out  of  con- 
tracts. Several  causes  of  action  arising 
out  of  contracts  are  properly  united.  Kel- 
ler V.  Hicks,  22  Cal.  457;  83  Am.  Dec.  78. 
Thus,  a  cause  of  action  based  upon  an  ex- 
press contract  may  be  united  with  one 
based  upon  an  implied  contract.  Cowan  v. 
Abbott,  92  Cal.  100;  28  Pac.  213;  01m- 
stead  V.  Dauphiny,  104  Cal.  635;  38  Par. 
505.  An  action  upon  a  contract  for  the 
direct  payment  of  money  may  be  united 
with  one  arising  out  of  a  contract,  wherein 
the  damages  for  its  breach  are  unliqui- 
dated, and  for  which  the  plaintiff  is  not 
entitled  to  a  writ  of  attachment.  Bald- 
win V.  Napa  etc.  Wine  Co..  137  Cal.  646; 
70  Pac.  732;  Hathaway  v.  Davis,  33  Cal. 
161.  There  is  no  misjoinder  of  causes  of 
action  in  a  suit  in  equity  to  settle  the  af- 
fairs of  a  partnership,  where  the  subject- 
matter  of  the  suit  relates  to  but  one 
transaction,  and  the  principal  relief  asked 
is  to  establish  the  partnership  and  for  an 
accounting  of  the  partnership  assets  and 
business.  Doudell  v.  Shoo,  20  Cal.  App. 
424;  129  Pac.  478;  Bremner  v.  Leavitt, 
109  Cal.  130;  41  Pac.  859.  A  cause  of  ac- 
tion for  work  and  labor  performed  by  the 
plaijitiff  for  the  defendant  may  be  joined 
with  a  similar  cause  assigned  to  the  plain- 
tiff. Fraser  v.  Oakdale  Lumber  etc.  Co., 
73  Cal.  187;  14  Pac.  829.  A  cause  of  ac- 
tion for  damages  for  breach  of  contract, 
with  each  term  of  the  contract  separately 
and  specifically  alleged,  and  all  summed  up 
in  one  general  allegation  of  damages,  may 
be  joined  with  a  cause  of  action  on  quan- 
tum meruit,  which  particularizes  each  item 


of  work  and  labor  performed  and  mate- 
rials furnished,  and  the  reasonable  value 
thereof,  where  they  all  arise  out  of  con- 
tracts expressed  or  implied.  Eemy  v.  Olds, 
88  Cal.  537;  26  Pac.  355.  A  cause  of  ac- 
tion for  a  commission,  based  upon  a  sale 
of  property  made  under  a  given  state  of 
facts,  may  be  united  with  a  cause  of  ac- 
tion based  upon  a  sale  made  under  another 
state  of  facts;  both  causes  of  action  being 
based  upon  the  same  contract,  and  the 
plaintiff  being  entitled  to  recover  upon 
either,  he  should  not  be  compelled  to  elect 
upon  which  he  will  proceed.  Eucker  v. 
Hall,  105  Cal.  425;  38  Pac.  962;  Wilson  v. 
Smith,  61  Cal.  209.  In  an  action  for  the 
l^urohase  price  of  goods,  an  allegation  that 
a  further  sum  is  due  as  interest  does  not 
constitute  a  separate  cause  of  action. 
Friend  &  Terry  Lumber  Co.  v.  Miller,  67 
Cal.  464;  8  Pac.  40.  The  owner  of  prop- 
erty adjacent  to  a  street  is  not  a  party 
to  a  contract  for  the  improvement  of  the 
street,  made  between  the  contractor  and 
the  superintendent  of  streets,  within  the 
meaning  of  the  first  subdivision  of  this 
section.  Dyer  v.  Barstow,  50  Cal.  652. 
The  plaintiff  may  unite,  or  sue  separately 
on,  causes  of  action  for  the  foreclosure  of 
a  lien  for  street-work,  as  to  each  lot,  under 
the  same  contract,  although  one  person  may 
own  two  or  more  of  such  lots.  Eealty  Con- 
struction etc.  Co.  v.  Superior  Court,  165 
Cal.  543;  132  Pac.  1048.  Several  causes 
of  action  upon  contracts  for  the  direct 
payment  of  money  may  be  united,  where 
one  of  them  is  secured  by  pledge  of  per- 
sonal property,  while  the  others  are  un- 
secured. Baldwin  v.  Napa  etc.  Wine  Co., 
137  Cal.  646;  70  Pac.  732.  Where  the  con- 
tract alleged  is  an  entirety,  and  the  de- 
fendant's promises  are  all  founded  upon 
tbe  same  consideration,  the  plaintiff  may 
ask  for  a  money  judgment,  and  for  the 
s^jecific  performance  of  an  agreement  to 
convey;  and  it  is  his  duty  to  unite  both 
in  the  same  action,  if  he  wishes  to  enforce 
both.  Mann  v.  Higgins,  83  Cal.  66;  23  Pae. 
206. 

Causes  of  action  on  contract  and  tort. 
A  cause  of  action  for  breach  of  contract 
cannot  be  joined  with  one  for  injuries  re- 
sulting from  a  tort  (Stark  v.  Wellman,  96 
Cal.  400;  31  Pac.  259);  nor  can  a  cau^e  of 
action  for  the  violation  of  the  terms  of  an 
express  contract  be  joined  with  one  for 
the  conversion  of  personal  propertv  (Stark 
V.  Wellman,  96  Cal.  400;  31  Pac.  2.d9)  ;  but, 
if  they  arise  out  of  the  same  transaction, 
actions  ex  delicto  and  actions  ex  contractu 
may  be  joined.  Bonlden  v.  Thompson,  21 
Cal.  App.  279;  131  Pac.  755. 

Claims  to  recover  specific  real  property. 
A  claim  to  recover  specific  real  property, 
with  damages  for  the  withholding  thereof, 
or  for  waste  committed  thereon,  and  the 
rents  and  profits  of  the  same,  may  be 
united.  Furlong  v.  Cooney,  72  Cal.  322; 
14  Pac.  12;   Sullivan  v.  Davis,  4  Cal.  291. 


345 


CAUSES  OF  ACTION    UNITED — MUST  AFFECT   ALL  PARTIES. 


§427 


Causes  of  action  to  recover  possession  of 
several  distinct  and  separate  parcels  of 
land  may  be  united,  where  they  are  sepa- 
rately stated,  affect  all  the  parties  to  the 
action,  and  do  not  require  diiferent  places 
of  trial.  Boles  v.  Cohen,  15  Cal.  150. 
Claims  for  rents,  issues,  and  profits,  and 
for  damaj^cs  for  withholding,  in  an  action 
to  recover  specific  real  property,  are  in 
the  nature  of  alleged  trespass  for  mesne 
profits,  which  can  be  recovered  only  after 
or  contemporaneously  with  judgment  for 
the  recovery  of  possession  of  the  demanded 
premises;  and,  when  united  with  eject- 
ment, judgment  for  such  damages  can  be 
rendered  only  when  there  is  also  judgment 
for  recovery  of  possession.  Locke  v. 
Peters,  Go  Cal.  161;  3  Pac.  657.  Specific 
real  property,  with  damages,  may  be  re- 
covered; but  recovery  of  damages  cannot 
be  had,  where  the  plaintiff  fails  to  recover 
the  property.  Carpentier  v.  Mendenhall, 
28  Cal.  484;  87  Am.  Dec.  135.  A  cause  of 
action  to  recover  possession  of  real  prop- 
erty may  be  joined  with  one  for  rents,  is- 
sues, and  profits.  Beckman  v.  Waters,  3 
Cal.   App.  734;   86  Pac.  997. 

Claims  to  recover  specific  personal  prop- 
erty. A  cause  of  action  to  recover  specific 
personal  property,  with  or  without  dam- 
ages for  the  withholding  thereof,  cannot 
be  united  with  a  cause  of  action  for  in- 
jurv  to  the  property.  Hall  v.  Susskind, 
109"  Cal.  203;  41  Pac'.  1012. 

Claims  against  a  trustee.  A  claim  to 
enforce  an  express  or  implied  trust  may 
be  united  with  a  claim  to  enforce  a  ven- 
dor's lien  existing  without  anv  written  con- 
tract. Burt  v.  Wilson,  28  Cal'.  632;  87  Am. 
Dee.  142,  The  cause  of  action  in  a  com- 
plaint, under  §  738,  post,  is  not  within  the 
purview  of  the  fourth  subdivision  of  this 
section.  Eevnolds  v.  Lincoln,  71  Cal.  183; 
9  Pac.  176";  12  Pac.  449.  A  complaint 
which  states  one  cause  of  action  in  eject- 
ment and  one  for  the  establishment  of  a 
trust,  is  good,  in  the  absence  of  a  demur- 
rer for  misjoinder  of  causes  of  action. 
Everson  v.  Mayhew,  85  Cal.  1;  21  Pac. 
431;  24  Pac.  382.  Several  causes  of  action 
upon  claims  against  a  trustee,  by  virtue 
of  a  contract  or  by  operation  of  law,  may 
be  united,  though  they  may  relate  to  dis- 
tinct parcels  of  real  estate.  Murphy  v. 
Crowley,  140  Cal.  141;   73  Pac.  820. 

Injuries  to  character.  In  an  action  for 
conspiracy,  which  in  one  aspect  is  for  the 
publication  of  a  libel,  and  in  another  is 
for  malicious  prosecution,  each  cause  of 
action  should  be  separately  stated  in  the 
complaint,  so  that  the  defendant  may  plead 
to  them  separately.  W^hite  v.  Cox,  46  Cal. 
169.  Where  the  complaint  alleges  wrong- 
ful acts  of  the  defendant,  by  which  the 
property  of  the  plaintiff  is  damaged,  his 
character  injured,  and  his  health  perma- 
nently impaired,  there  is  a  misjoinder  of 
distinct  causes  of  action.  Lamb  v.  Har- 
baugh,  105  Cal.  680;  39  Pac.  56. 


Injuries  to  person.  A  cause  of  action 
for  injury  to  the  person  cannot  be  joined 
with  one  for  injury  to  property.  Thelin  v. 
Stewart,  100  Cal.  372;  34  Pac.  861;  Scher- 
merhorn  v.  Los  Angeles  Pacific  R.  R.  Co., 
18  Cal.  Apj..  434;    123  Pac.  351. 

Injuries  to  property.  Anv  number  of 
separate  causes  of  action  for  distinct  nui 
sauces  may  be  united,  where  thev  affect 
all  the  parties.  Astill  v.  South  Yuba  Water 
Co.,  146  Cal.  55;  79  Pac.  594.  A  cause  of 
action  to  abate  a  nuisance  may  be  united 
with  one  to  recover  damages  incurred  by 
reason  thereof.  Grandona  v.  Lovdal,  "0 
Cal.  161;  11  Pac.  623.  A  complaint  seek- 
ing an  injunction  against  the  operation  of  a 
quarry,  and  for  damages  sustained  thereby, 
does  not  set  up  two  causes  of  action. 
Rooney  v.  Gray  Bros.,  145  Cal.  753;  79 
Pac.  523.  Where  the  several  owners  of  a 
stream  join  as  plaintiffs  in  an  action  for 
damages  for  diverting  the  waters  of  the 
stream,  and  for  an  injunction  to  restrain 
the  further  diversion  thereof,  the  com- 
plaint is  subject  to  a  demurrer,  both  for  a 
misjoinder  of  parties  plaintiff  and  for  a 
misjoinder  of  causes  of  action.  Foreman 
V.  Boyle,  88  Cal.  290;  26  Pac.  94. 

Transactions  connected  with  same  sub- 
ject-matter. A  cause  of  action  to  quiet 
title  and  to  declare  a  deed  a  mortgage, 
arising  out  of  the  same  transaction,  is  not 
a  union  of  two  causes  of  action.  Louvall 
V.  Gridley,  70  Cal.  507;  11  Pac.  777.  Two 
or  more  causes  of  action  against  a  toll- 
collector,  for  penalties  incurred  for  de- 
manding and  collecting  excessive  toll,  are 
improperly  united,  even  if  separately 
stated.  Brown  v.  Rice,  51  Cal.  489.  An 
action  to  foreclose  a  mortgage  executed 
by  two  persons,  to  secure  a  note  made  by 
one  of  them,  and  praying  for  judgment 
againsc  the  maker  of  the  note  and  for  a 
decree  of  foreclosure  against  both,  is  not 
demurrable  on  the  ground  of  misjoinder 
of  causes  of  action.  Rollins  v.  Forbes,  10 
Cal.  299;  Althof  v.  Conheim,  38  Cal.  230; 
99  Am.  Dec.  363;  Bailey  v.  Dale,  71  Cal. 
34;  11  Pac.  804;  Levy  v.  Noble,  135  Cal- 
559;  67  Pac.  1033. 

Causes  of  action  must  affect  all  parties. 
Causes  of  action  which  do  not  affect  the 
same  parties  cannot  be  properly  unitetl 
(.Johnson  v.  Kirbv,  65  Cal.  482;  4  Pac.  4.1S; 
Hall  V.  Susskind,  109  Cal.  203;  41  Pac. 
1012);  but  a  cause  of  action  against  a  de- 
fendant individually  may  be  united  with  a 
like  cause  of  action  against  him  in  a  repre- 
sentative capacity.  Sacramento  County  v. 
Glann,  14  Cal.  App.  780;  113  Pac.  360. 
A  complaint  stating  eighteen  separate  and 
distinct  causes  of  action,  all  in  one  count, 
and  affecting  eighteen  different  persons, 
is  defective  (People  v.  Central  Pacific 
R.  R.  Co..  83  Cal.  393;  23  Pac.  303);  but, 
it  having  been  settled  that  a  defendant 
who  is  the  owner  of  all  the  lots  in  a 
foreclosure  suit  may  be  joined  in  a  simple 
action  to  enforce  the  lien,  no  difference  is 


§427 


COMPLAINT. 


346 


perceivable,  where  the  single  action  is 
brought  against  three  owners  in  common 
of  all  the  lots  in  suit  (Barber  Asphalt  Pav- 
ing Co.  V.  Crist,  21  Cal.  App.  1;  130  Pac. 
435);  and  where  the  suit  is  upon  several 
distinct  contracts,  by  the  same  parties,  re- 
lating to  the  same  transaction,  involving 
joint  and  joint  and  several  liabilities.  Me- 
lander  v.  Western  National  Bank,  21  Cal. 
App.  462;   132  Pac.  265. 

Causes  of  action  must  belong  to  the  same 
class.  A  complaint  cannot  mingle  several 
distinct  causes  of  action,  not  all  belonging 
to  any  one  of  the  classes  mentioned.  Cos- 
grove  v.  Fisk,  90  Cal.  75;  27  Pac.  56. 
Several  causes  of  action,  all  arising  out  of 
injury  to  the  person,  or  all  arising  out  of 
injury  to  property,  may  be  united,  pro- 
vided that  all  the  causes  of  action  so 
united  belong  to  one  of  the  classes  desig- 
nated in  this  section.  Schermerhorn  v. 
Los  Angeles  etc.  R.  R.  Co.,  18  Cal.  App. 
454;   123  Pac.  351. 

Causes  of  action  must  be  separately 
stated.  The  provision  for  a  separate  state- 
ment of  causes  of  action  does  not  author- 
ize the  joinder  of  separate  causes  of 
action  to  enforce  separate  forfeitures 
arising  under  a  statute.  Smith  v.  Omnibus 
E.  E.  Co.,  36  Cal.  281;  Eeed  v.  Omnibus 
E.  E.  Co.,  33  Cal.  212.  Where  the  com- 
plaint includes  two  or  more  of  the  several 
classes,  and  does  not  separately  state  the 
causes  of  action,  but  unites  them  in  one 
count,  there  is  a  clear  violation  of  the 
provisions  of  the  act  (McCarty  v.  Fre- 
mont, 23  Cal.  196) ;  but  a  misjoinder  of 
causes  of  action,  which  does  not  affect  the 
substantial  rights  of  the  parties,  is  not 
ground  for  a  reversal  of  the  judgment. 
Eeynolds  v.  Lincoln,  71  Cal.  183;  9  Pac. 
176;  12  Pac.  449.  Pleading  one  cause  of 
action  in  several  counts  does  not  affect 
the  substantial  rights  of  the  opposing 
party.  Pennie  v.  Hildreth,  81  Cal.  127;  2:^ 
Pac.  398.  The  statement  of  a  cause  of 
action  in  several  counts,  instead  of  one, 
does  not,  of  itself,  render  the  complaint 
ambiguous  and  uncertain,  or  open  to  a 
general  demurrer.  Demartin  v.  Albert,  68 
Cal.  277;  9  Pac.  157.  The  common  counts 
cannot  all  be  united  in  one  count  as  one 
cause  of  action,  without  any  specification 
of  the  sums  due  upon  each  several  causes 
of  action.  Buckingham  v.  Waters,  14  Cal. 
146.  Each  count  must  contain  all  the 
facts  necessary  to  constitute  a  cause  of  ac- 
tion, and  its  defects  cannot  be  supplied 
from  statements  outside  of  it,  unless  ex- 
pressly referred  to  in  it,  and  not  then  if 
matters  in  it  relate  to  the  gravamen. 
Haskell  v.  Haskell,  54  Cal.  262;  Baldwin 
V.  Ellis,  68  Cal.  495;  9  Pac.  652;  Pennie 
V.  Hildreth,  81  Cal.  127;  22  Pac.  398;  Bid- 
well  v.  Babcock,  87  Cal.  29;  25  Pac.  752; 
Green  v.  Clifford,  94  Cal.  49;  29  Pac.  331; 
Reading  v.  Beading,  96  Cal.  4;  30  Par-. 
803;  Hopkins  v.  Contra  Costa  County,  106 
Cal.   566;   39   Pac.   933;   Barlow   v.   Burns, 


40  Cal.  351.  Where  separate  counts  are  not 
necessary,  and  where  the  entire  complaint 
states  a  cause  of  action,  the  judgment  will 
not  be  reversed  on  the  ground  that  each 
cause  in  the  complaint  is  not  complete. 
Pennie  v.  Hildreth,  81  Cal.  127;  22  Pac. 
398.  Forcible  entry  and  forcible  detainer 
are  distinct  offenses,  or  separate  causes  of 
action,  and  should  be  separately  stated 
(Valencia  v.  Couch,  32  Cal.  339;  91  Am. 
Dee.  589);  but  the  complaint  cannot  be 
amended  for  the  purpose  of  stating  forci- 
ble entry  and  forcible  detainer  in  separate 
counts,  where  no  objection  is  raised  by 
demurrer  to  the  complaint,  which  does  not 
separately  state  each  distinct  offense. 
Valencia  v.  Couch,  32  Cal.  339;  91  Am. 
Dec.  589.  Where  the  gist  of  the  action  is 
negligence,  the  plaintiff  may  set  forth  all 
the  facts,  the  indirect  consequences  of 
which  resulted  in  the  injuries  complained 
of.  Fraler  v.  Sears  Union  Water  Co.,  12 
Cal.  555;  73  Am.  Dec.  562.  A  motion  to 
compel  a  plaintiff  to  elect  between  counts 
is  properly  denied,  where,  in  the  first 
count,  he  alleges  delivery  to  the  defend- 
ants, under  an  agreement  to  make  returns 
of  i^roceeds  at  a  given  price,  and  the  sec- 
ond count  is  laid  on  quantum  valebat, 
and  the  third  count  alleges  an  agreement 
to  sell  and  deliver  for  a  fixed  price.  Es- 
trella  Vinevard  Co.  v.  Butler,  125  Cal. 
232;  57  Pac.  980;  Cowan  v.  Abbott,  92 
Cal.  100;   28  Pac.  213. 

Remedy  where  causes  of  action  not 
separately  stated.  Where  causes  of  action 
may  be  properly  united,  but  are  not 
separately  stated,  the  remedy  is  not  by  de- 
murrer, but  by  a  motion  to  make  the  plead- 
ing more  definite  and  certain,  by  separat- 
ing and  distinctly  stating  the  different 
causes  of  action.  City  Carpet  Beating  etc. 
Works  v.  .Jones,  102  Cal.  506;  36  Pac.  841; 
and  see  Bernero  v.  South  British  etc.  Ins. 
Co.,  65  Cal.  386;  4  Pac.  382;  Eraser  v. 
Oakdale  Lumber  etc.  Co.,  73  Cal.  187;  14 
Pac.  829;  Jacob  v.  Lorenz,  98  Cal.  332; 
33  Pac.  119;  Murphy  v.  Crowley,  140  Cal. 
141;  73  Pac.  820.  The  defect  of  a  failure 
to  state  separately  the  causes  of  action 
united  in  the  complaint  cannot  be  reached 
by  a  motion  to  dismiss  the  action.  Wat- 
son v.  San  Francisco  etc.  R.  R.  Co.,  50  Cal. 
523.  Where  the  complaint  improperly 
unites  two  causes  of  action,  advantage  of 
the  defect  must  be  taken  by  demurrer,  or 
it  is  waived.  Reynolds  v.  Lincoln,  71  Cal. 
183;  9  Pac.  176;  12  Pac.  449.  It  is  not 
waived,  however,  where  the  defendant 
submits  to  trial,  the  objection  having  been 
previously  raised  by  demurrer.  Thelin  v. 
Stewart,  100  Cal.  372;  34  Pac.  861. 

Joinder  and  splitting  of  claims  for  injury  to 
person  and  property  arising  out  of  single  tort. 
See  notes  3  Ann.  Cas.  464;  Ann.  Cas.  1912D, 
256. 

Necessity  under  code  practice  that  causes  of 
action  joined  alfect  all  parties  defendant.  See 
note,  3  Ann.  Cas.  285. 


347 


WHEN   DEFENDANT   MAY   DEMUR. 


§430 


Joinder  of  causes  of  action  accruing  to  plaintiff 
Individually  and  in  representative  capacity.  See 
note  Ann.  ('.as.   ISUUl'..    I'J.SS. 

Whether  injuries  both  to  person  and  to  prop- 
erty constitute  but  one  or  more  than  one  cause  of 
acUon.  S.e  notes  50  L.  R.  A.  161;  36  L.  R.  A. 
(N.  S.)   240. 

Conclusiveness  of  judgment  in  wife's  suit  for 
personal  injuries  in  husband's  action  for  loss  of 
services  and  expenses.  See  note  10  L.  R.  A. 
(N.    S.)    140. 

Eight  of  husband  to  recover  for  loss  of  con- 
sortium through  personal  injury  to  wife.  See  note 
33  L.  K.  A.    (N.  S.)    104-2. 

Right  to  join  in  one  complaint  claims  of  ordi- 
nary and  gross  negligence  arising  out  of  one  state 
■of  facts.    See  note  31  L.  R.  A.   (N.  S.)   1.^58. 

CODE  COMMISSIONERS'  NOTE.  1.  Con- 
tracts express  or  implied.  A  cau.se  of  action 
against  an  indorser  on  the  note,  and  a  cause  of 
action  in  equity  to  foreclose  the  mortgage,  were 
held  to  be  properly  joined.  Eastman  v.  Turman, 
24  Cal.  382.  Mo.rtgage  assigned  as  security  for 
debt  due  by  mortgagee — assignee  may  unite  his 
causes  of  action  against  mortgagor,  mortgagee, 
and  parties  having  liens  or  eneuinbrances  on  the 
property  mortgaged,  and  make  these  persons  al! 
parties.  Farwell  v.  Jackson,  28  Cal.  107.  Ac- 
tion for  foreclosure  of  mortgage  made  by  hus- 
tand  and  wife  together  to  secure  a  note  made 
■only  by  husband,  cause  of  action  against  hus- 
"band  for  amount  due  on  note  and  interest,  and 
also  against  husband  and  wife  for  foreclosure 
and  sale  of  property,  held  to  be  properly  united. 
Tlollins  V.  Forbes,  10  Cal.  299.  Legal  and  equi- 
table claims,  founded  upon  instruments  in  writ- 
ing, may  be  united.  Gray  v.  Dougherty,  2.5  Cal. 
■266.  Cause  of  action  for  enforcement  of  trust, 
■either  express  or  implied,  may  be  united  with 
<;ause  of  action  to  enforce  vendor's  lien  e.xisting 
-without  any  written  contract.  Both  of  the  claims 
teing  founded  on  trusts,  one  lying  in  contract 
and  the  other  arising  by  act  and  operation  of 
law.    Burt  v.  Wilson,   23   Cal.  638;   87  Am.  Dec. 


142.  See  also,  generallv,  under  this  head,  Keller 
V.  Hioks.  22  Cal.  4.57;  83  Am.  Dec.  78;  Weaver 
V.   Conger,    10   Cal.    233. 

2.  Claims  to  recover  specific  real  property, 
with  or  without  damages,  or  for  waste  and  the 
rents  or  profits.  Sullivan  v.  Davis.  4  Cal.  291; 
Gale  V.   'ruoliimne  Water  Co.,    14   Cal.   'J.5. 

3.  Injuries  to  property.  More  v.  Massini,  32 
Cal.  .595.  596,  Claims  for  value  of  the  property 
destroyed,  and  for  the  damages  caused  by  its 
destruction,  may  be  united.  Tendesen  v.  Mar- 
shall, 3  Cal.  440.  Uniting  claim  for  injury  and 
damages.  S-'^^p  Fraler  v.  Scars  Union  Water  Co., 
12   Cal.   555;   73   Am.  Dec.  562. 

4.  Causes  of  action  separately  stated.  Though 
united  in  one  complaint,  the  different  causes  of 
action  must  be  separately  stated.  McCarty  v. 
I'remont,  23  Cal.  197;  Buckingham  v.  Waters, 
14  Cal.  146;  Cordier  v.  Schloss.  18  Cal.  581. 
Kjeetment  may  be  for  two  distinct  pieces  of 
land,  but  the  two  causes  of  action  must  be 
separately  stated,  affect  all  the  parties  to  the 
aetion,  and  not  require  different  places  of  trial. 
Boles  V.  Cohen,   15   Cal.   150. 

5.  Generally.  A  complaint  against  a  sheriff 
and  his  sureties,  averrinsr  trespass  of  sheriff  and 
against  his  sureties  as  signers  of  the  bond,  and 
not  otherwise,  the  causes  are  not  properly 
united.  Ghiradelli  v.  Bourland,  32  Cal.  585. 
Claim  for  damages  for  personal  tort  cannot  be 
united  with  claim  properly  cognizable  in  court 
of  equity.  Mayo  v.  Madden,  4  Cal.  27.  .\  claim 
for  the  possession  of  real  property,  with  dam- 
ages for  detention,  cannot  be  joined  in  the  same 
complaint,  under  any  system  of  pleading,  with  a 
claim  for  consequential  damages  arising  from  a 
change  of  a  road,  by  which  a  tavern-keeper  may 
have  been  injured  in  his  business.  Bowles  v. 
Sacramento  Turnpike  etc.  Co.,  5  Cal.  225.  A 
claim  for  damages  may  be  united  with  a  demand 
for  a  statutory  penalty,  in  an  action  against  a 
sheriff  for  failing  to  execute  and  return  process. 
There  is  no  necessity  for  bringing  two  suits. 
Pearkes  v.  Freer,   9  Cal.  642. 


CHAPTER  III. 

DEMUEEEE  TO  COMPLAINT. 


430. 
431. 


When  defendant  may  demur. 

Demurrer  must  specify  grounds.      May  be 

taken  to  part.      May  answer  and  demur 

at  same  time. 


§  432.  What  proceedings  are  to  be  had  when 
complaint  is  amended. 

§  433.  Objection  not  appearing  on  complaint, 
may  be  taken  by  ansv/er. 

§  434.     Objections,  when  deemed  waived. 

§430.  When  defendant  may  demur.  The  defendant  may  demur  to  the 
complaint  within  the  time  required  in  the  summons  to  answer,  when  it  ap- 
pears upon  the  face  thereof,  either: 

1.  That  the  court  has  no  jurisdiction  of  the  person  of  the  defendant,  or 
the  subject  of  the  action; 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

3.  That  there  is  another  aetion  pending  between  the  same  parties  for  the 
same  cause ; 

4.  That  there  is  a  defect  or  misjoinder  of  parties  plaintiff  or  defendant; 

5.  That  several  causes  of  action  have  been  improperly  united,  or  not  sepa- 
rately stated ; 

6.  That  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action ; 

7.  That  the  complaint  is  ambiguous ; 

8.  That  the  complaint  is  unintelligible  ;  or, 

9.  That  the  complaint  is  uncertain. 


General  and  special  demurrer.    See  post,  §  431. 
Demurring  and  answering  at  same  time.    Post, 
§  431.  441. 


Serving  demurrer.    Post,  §  465. 
Judgment  on  demurrer.     Post,  §  636. 
Demurrer  is  an  appearance.    Post,  §  lOl^i. 


§430 


DEMURRER   TO    COMPLAINT. 


348 


Waiving  objections  by  not  demniiing.  Post, 
§  434. 

Legislation  §  430.  1.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,  §  40  (New  York 
Code,  §  144),  as  amended  by  Stats.   1859,  p.   139. 

2.  Amendment  by  Stats.  1901,  p.  133;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  706,  (1) 
striking  out  the  word  "or"  at  the  end  of  subds. 
1,  2  3,  4,  6;  (2)  in  subd.  5,  adding,  after  the 
word  "or,"  the  words  "not  separately  staled" ; 
(3)  rearranging  subd.  7  into  the  present  subds. 
7,  8,  9,  that  subdivision  formerly  reading.  "7. 
That  the  complaint  is  ambiguous,  unintelligible, 
or   uncertain." 

Objections  ttiat  may  be  reached  by  de- 
murrer. The  code  contemplates  oue  demur- 
rer to  a  pleading,  in  which  may  be  taken 
any  or  all  of  the  objections  enumerated  in 
this  section  (People  v.  Central  Pacific  K.  E. 
Co.,  76  C'al.  29;  18  Pac.  90);  and  no  grounds 
of  demurrer,  other  than  those  enumerated, 
can  be  considered.  Kyle  v.  Craig,  12.5  C'al. 
107;  57  Pac.  791;  Mitchell  v.  Steelman,  8 
Cal.  363;  Hentsch  v.  Porter,  10  Cal.  555; 
Bernero  v.  South  British  etc.  Ins.  Co.,  65 
Cal.  386;  4  Pac.  382.  A  demurrer  is  a 
pleading-,  within  the  meaning  of  the  stat- 
ute and  the  common  law.  Davis  v.  Honev 
Lake  Water  Co.,  98  Cal.  415;  33  Pac.  270. 
The  oiSce  of  the  demurrer  is,  not  to  set 
out  the  facts,  but  merely  to  raise  ques- 
tions of  law  as  to  the  sufSciency  of  the 
facts  to  constitute  a  cause  of  action  or 
defense.  Brenuan  v.  Ford,  46  Cal.  7;  Cook 
V.  De  la  Guerra,  24  Cal.  237.  The  legal 
character  of  the  causes  of  demurrer  is  the 
same,  whether  assigned  in  a  demurrer  or 
in  an  answer.  Brown  v.  Martin,  25  Cal. 
82.  Want  of  consideration  for  the  execu- 
tion of  an  instrument,  apparent  from  the 
averments  of  the  complaint,  may  be  taken 
advantage  of  by  demurrer  (MeCarty  v. 
Beach,  10  Cal.  461;  Mulford  v.  Estudillo, 
17  Cal.  618);  and  also  where  the  agree- 
ment sued  on  is  within  the  statute  of  frauds 
(Harper  v.  Goldschmidt.  156  Cal.  245;  134 
Am.  St.  Rep.  124;  104  Pac.  451V  and  the 
failure  of  a  complaint,  based  upon  alleged 
fraud,  to  aver  facts  showing  fraud,  is 
ground  of  demurrer.  Cosgrove  v.  Fisk,  90 
Cal.  75;  27  Pac.  56;  Pavne  v.  Elliot,  54 
Cal.  339;  35  Am.  Eep.^SO;  Pehrson  v. 
Hewitt,  79  Cal.  594;  21  Pac.  950.  Conclu- 
sions of  law  are  not  admitted  by  a  demur- 
rer. Buttner  v.  Kasser,  19  Cal.  App.  755; 
127  Pac.  811.  The  pleading  must  show  on 
its  face  a  cause  of  demurrer.  Mulford  v. 
Estudillo,  17  Cal.  618;  Miles  v.  Thorne,  38 
Cal.  335;  99  Am.  Dee.  384.  Thus,  a  failure 
to  serve  a  copy  of  the  complaint  with  the 
summons  is  not  a  ground  of  demurrer,  the 
omission  not  appearing  on  the  face  of 
the  complaint.  Ghiradelli  v.  Greene,  56 
Cal.  629.  Only  the  defects  appearing  on 
the  face  of  the  complaint  can  be  reached 
by  demurrer;  defects  or  uncertainties, 
made  apparent  only  by  allegation  of  facts, 
cannot  be  raised  bv  it.  Cook  v.  De  la 
Guerra,  24  Cal.  237";  Kamm  v.  Bank  of 
California,  74  Cal.  191;  15  Pac.  765;  Mul- 
ford  V.   Estudillo,   17   Cal.   618;   Ghiradelli 


V.  Greene,  56  Cal.  629.  Irrelevant  and  im- 
material matters  in  the  complaint,  which 
do  not  affect  the  suflQciency  thereof,  can- 
not be  reached  by  demurrer,  but  must  be 
made  the  subject  of  a  motion  to  strike 
out.  Bremner  v.  Leavitt,  109  Cal.  130;  41 
Pac.  859.  An  objection  to  a  pleading^ 
which  contains  all  the  essential  averments,, 
but  states  them  in  form  too  general  tO' 
enable  the  defendant  to  meet  them  by  a 
specific  technical  defense,  should  be  met, 
not  by  demurrer,  but  by  motion  to  make 
the  pleading  more  specific.  Pfister  v. 
Wade,  69  Cal.  133;  10  Pac.  369;  but  see- 
contra,  McFarland  v.  Holcomb.  123  Cal. 
84;  55  Pac.  761.  The  prayer  of  the  com- 
plaint is  not  a  subject  of  demurrer  (Rol- 
lins V.  Forbes,  10  Cal.  299;  De  Leon  v. 
Higuera,  15  Cal.  483;  Poett  v.  Stearns,  28 
Cal.  226;  Althof  v.  Conheim,  38  Cal.  230; 
99  Am.  Dec.  363;  Bailev  v.  Dale,  71  Cal. 
34;  11  Pac.  804;  Levy  V.  Noble,  135  Cal. 
559;  67  Pac.  1033);  neither  is  surplusage 
(Mitchell  V.  Steelman,  8  Cal.  363);  nor  will 
a  matter  of  form  be  noticed  on  demurrer 
(Phelps  V.  Owens,  11  Cal.  22;  Ward  v. 
Clay,  82  Cal.  502;  23  Pac.  50,  227);  hence, 
failure  to  specify  the  name  of  the  county,, 
or  the  court  or  the  title,  or  that  the  com- 
p)laint  does  not  show  where  either  of  the 
parties  resides,  is  not  a  ground  of  demur- 
rer (Otero  V.  Bullard,  3  Cal.  188);  nor  is 
an  exception  to  an  executor's  account 
a  pleading  which  may  be  demurred  to  (Es- 
tate of  Sanderson,  74  Cal.  199;  15  Pac. 
753) ;  nor  can  want  of  verification  of  plead- 
ings be  raised  by  demurrer  (Turner  v. 
Hamilton,  13  Wyo.  408;  80  Pac.  664) ;  nor 
is  the  non-appearance,  in  the  record,  of 
the  Christian  name  of  one  plaintiff,  a  good 
ground  of  demurrer  (Nelson  v.  Highland, 
13  Cal.  74);  nor  is  the  setting  up  two  ac- 
counts for  one  cause  of  action,  in  the  com- 
plaint (Kyle  V.  Craig,  125  Cal.  107;  57 
Pac.  791);  nor  is  an  objection  that  the- 
statute  gives  a  person  another  remedy 
(Triscony  v.  Brandensteiu,  66  Cal.  514;  6 
Pac.  384);  nor  a  failure  to  allege  special' 
damage  in  an  action  for  breach  of  con- 
tract (MeCarty  v.  Beach,  10  Cal.  461); 
nor  a  failure  to  show  that  plaintiffs  were 
innocent  purchasers  in  good  faith  and- 
without  notice.  McDermont  v.  Anaheim. 
Union  Water  Co.,  124  Cal.  112;  56  Pac. 
779. 

Plea  of  limitations.  The  bar  of  the  stat- 
ute of  limitations  may  be  taken  advantage- 
of  by  demurrer,  where  the  defect  clearly 
and  affirmatively  appears  on  the  face  of 
the  complaint.  Sublette  v.  Tinney,  9  Cal. 
423;  Barringer  v.  Warden,  12  Cal.  311;. 
Ord  V.  De  la  Guerra,  18  Cal.  67;  Smith  v. 
Hall,  19  Cal.  85;  Mason  v.  Cronise,  20  Cal. 
211;  Brown  v.  Martin,  25  Cal.  82;  Harmon 
V.  Page,  62  Cal.  448;  Farris  v.  Merritt,  63" 
Cal.  118;  Cameron  v.  San  Francisco,  68 
Cal.  390;  9  Pac.  430;  Wise  v.  Williams,. 
72  Cal.  544;  14  Pac.  204;  Wise  v.  Hogan,. 
77  Cal.  184;  19  Pac.  278;  Jenness  v.  Boweu,. 


549 


LACK   OF   LEGAL   CAPACITY — ABATEMENT — MISJOINDER. 


§430 


77  Cal.  310;   19  Pac.   522;   Doe   v.   Sanger, 

78  Cal.  150;  20  Pac.  3(56;  Kraner  v.  Hal- 
sey,  82  Cal.  209;  22  Pat-.  1137;  Kedington 
V.  Cornwel],  90  Cal.  49;  27  Pac.  40;  Pleas- 
ant V.  Samuels,  114  Cal.  34;  4.5  Pac.  998; 
Williams  v.  Bergin,  116  Cal.  56;  47  Pac. 
877;  McFarland  v.  Holcomb,  123  Cal.  84; 
55  Pac.  761;  Lloyd  v.  Davis,  123  Cal.  348; 
55  Pac.  1003.  Where  a  counterclaim  ap- 
pears upon  the  face  of  the  answer  to  be 
barred  by  the  statute,  it  must  be  specially 
pleaded  to  by  demurrer  on  that  ground, 
or  it  is  waived.  Bliss  v.  Sneath,  119  Cal. 
526;  51  Pac.  848.  A  demurrer  on  the 
ground  of  the  bar  of  the  statute  is  sus- 
tained, not  because  the  complaint  states, 
.as  the  time  when  the  cause  of  action  ac- 
crued, any  period,  the  time  from  which  to 
the  commencement  of  the  action  corre- 
sponds with  the  time  prescribed  in  any 
particular  statute  as  bar,  but  because  the 
time,  as  stated  since  it  accrued,  exceeds 
the  time  defined  as  a  limitation  of  actions 
of  that  nature.  Boyd  v.  Blankman,  29  Cal. 
19;  87  Am.  Dec.  146.  Where  an  allegation 
of  the  complaint  is  consistent  with  the 
conclusion  that  the  debt  is  not  barred,  the 
defense  must  be  raised  by  plea,  and  not 
by  demurrer.  Curtiss  v.  .<^tna  Life  Ins. 
Co.,  90  Cal.  245;  25  Am.  St.  Rep.  114;  27 
Pac.  211.  The  bar  of  the  statute  must  be 
■deemed  to  be  included  within  the  ground  of 
want  of  facts  sufficient  to  constitute  a 
cause  of  action,  though  it  is  not  specified 
in  the  code  as  a  ground  of  demurrer.  Bell 
V.  Bank  of  California,  153  Cal.  234;  94 
Pac.  S89.  Where  the  complaint  shows  that 
the  statute  has  run,  the  defendant  may  set 
it  up  either  by  demurrer  or  answer;  but 
■when  the  complaint  does  not  so  show,  the 
defendant  must  plead  his  right  by  answer. 
California  Safe  Deposit  etc.  Co.  v.  Sierra 
Talleys  Ry.  Co.,  158  Cal.  690;  Ann.  Cas. 
1912A,  729;    112  Pac.   274. 

Want  of  jurisdiction.  Lack  of  jurisdic- 
tion must  appear  on  the  face  of  the  com- 
plaint, to  be  a  ground  of  demurrer.  Doll 
V.  Feller,  16  Cal.  432. 

Lack  of  legal  capacity  to  sue.  It  must 
affirmatively  appear  that  the  plaintiff  has 
no  legal  capacity  to  sue,  to'be  a  ground  of 
demurrer.  Swamp  etc.  Land  District  v. 
Peck,  60  Cal.  403;  Miller  v.  Lueo,  80  Cal. 
^57;  22  Pac.  195;  Wilhoit  v.  Cunningham, 
87  Cal.  453;  25  Pac.  675;  Locke  v.  Klun- 
ker,  123  Cal.  231;  55  Pac.  993;  Redding 
Gold  etc.  Mining  Co.  v.  National  Surety 
Co.,  18  Cal.  App.  488;  123  Pac.  544.  The 
want  of  capacity  to  sue  can  be  raised  by 
demurrer,  onlj'  it  appears  upon  the  face  of 
the  complaint.  Redding  Gold  Min.  Co.  v. 
National  Surety  Co.,  18  Cal.  App.  488;  123 
Pac.  544.  The  objection  that  the  plaintiff 
has  not  legal  capacity  to  sue  must  be  taken 
by  demurrer  or  answer,  or  it  is  waived. 
Bollinger  v.  Bollinger,  154  Cal.  695;  99 
Pac.  196.  The  authority  of  the  attorney- 
general  to  institute  an  action  in  behalf  of 
the  people,  to  determine  adverse  claims  to 


real  property,  does  not  come  within  an  ob- 
jection, raised  by  demurrer,  of  want  of 
cai)acity  in  the  plaintiff  to  sue,  and  it  is 
doubtful  if  it  comes  within  any  of  the 
grounds  of  demurrer  mentioned  in  this  sec- 
tion; the  proper  practice  is  to  move  to  dis- 
miss the  information.  People  v.  Oakland 
Water  Front  Co.,  118  Cal.  234;  50  Pac.  305. 

Plea  in  abatement.  The  general  rule  as 
to  pleas  in  abatement  is,  that,  before  one 
suit  can  be  pleaded  in  abatement  of 
another,  it  must  appear  that  the  plaintiffs 
are  the  same  in  both  suits.  Ilcii'rich  v. 
Romer,  16  Cal.  App.  433;  118  Pac.  458. 
The  pendency  of  a  prior  action,  between 
the  same  parties,  for  the  same  cause,  is  a 
good  plea  in  abatement.  Goytino  v.  Mc- 
Aleer,  4  Cal.  App.  655;'  88  Pac.  991.  The 
general  rule  is,  that  articles  of  incorpora- 
tion must  be  of  record  in  the  clerk's  office 
at  the  time  that  a  plea  in  abatement  is 
interposed;  otherwise  the  plea  is  good. 
Riverdale  Mining  Co.  v.  Wicks,  14  Cal. 
App.    526;    112    Pac.    896. 

Defect  or  misjoinder  of  parties.  The 
word  "defect,"  as  used  in  the  fourth  sub- 
division, means  a  defect  in  the  complaint, 
by  reason  of  having  either  too  many  or 
too  few  parties.  Rowe  v.  Chandler,  1  Cal. 
167.  Misjoinder  of  parties  may  be  taken 
advantage  of  by  demurrer  (Warner  v.  Wil- 
son, 4  Cal.  310;  Peralta  v.  Simon,  5  Cal. 
313;  Jacks  v.  Cooke,  6  Cal.  164):  but  a  de- 
murrer does  not  lie,  where  a  defect  of  par- 
ties does  not  appear  on  the  face  of  the 
complaint.  Cook  v.  De  la  Guerra,  24  Cal. 
237;  Frost  v.  Harford,  40  Cal.  165.  Mis- 
joinder of  parties,  not  appearing  on  the 
face  of  the  complaint,  is  not  a  ground  of 
demurrer  (Frost  v.  Harford,  40  Cal.  165); 
and  where  there  is  but  one  party  defend- 
ant, a  demurrer  for  misjoinder  of  parties 
defendant  is  properly  overruled.  Loren- 
zana  v.  Camarillo,  45  Cal.  125.  Where  a 
complaint  is  filed  against  several  defend- 
ants, for  several  and  distinct  causes,  hav- 
ing no  relation  to  or  dependence  upon  one 
another,  a  demurrer  for  misjoinder  of  par- 
ties and  of  causes  of  action  will  be  sus- 
tained; but  where  several  persons  have 
been  jointly  concerned  in  a  series  of  fraud- 
ulent transactions,  they  mav  be  united  as 
defendants  in  an  action  to  annul  the  fraud- 
ulent acts.  Andrews  v.  Pratt,  44  Cal.  309. 
The  non-joinder  of  necessary  parties,  plain- 
tiff or  defendant,  should  be  taken  ad- 
vantage of  by  demurrer  (Andrews  v. 
Mokelumne  Hill  Co.,  7  Cal.  330;  Whitnev 
v.  Stark,  S  Cal.  514;  68  Am.  Dec.  360;  Mac- 
Leod V.  Moran,  11  Cal.  App.  622;  ]05  Pac. 
932;  Redfield  v.  Oakland  Consol.  Street 
Ry.  Co.,  no  Cal.  277;  42  Pac.  822,  1063); 
and  if  not  taken  by  demurrer  or  answer, 
it  is  waived.  Baker  &  Hamilton  v.  Lam- 
bert. 5  Cal.  App.  708;  91  Pac.  340;  Farmer 
V.  Behmer,  9  Cal.  App.  773;  100  Pac.  901. 
The  failure  of  a  partner  to  join  his  co- 
partners as  parties  plaintiff  should  be 
taken    advantage    of    by    demurrer    (Wil- 


§430 


DEMURRER  TO   COMPLAINT. 


350 


liams  V.  Southern  Pacific  R.  E.  Co.,  110  Cal. 
457;  42  Pac.  974);  as  should  also  the  point 
that  a  person  is  a  necessary  party  defend- 
ant. MacLeod  v.  Moran,  11  Cal.  App.  622; 
105  Pac.  932.  In  an  action  of  foreclosure, 
a  general  allegation  that  the  defendant 
had  or  claimed  some  interest  in  the  mort- 
gaged premises  is  suiBcient  as  against  a 
demurrer  on  the  ground  of  defect  of  par- 
ties. Poett  V.  Stearns,  2S  Cal.  226.  A  de- 
fendant against  whom  a  sufficient  cause 
of  action  is  alleged  cannot  demur  for  mis- 
joinder of  defendants,  unless  his  interests 
would  be  affected  thereby.  Gardner  v. 
Samuels,  116  Cal.  84;  58  Am.  St.  Rep.  135; 
47  Pac.  935.  A  defect  in  parties  plaintiff, 
apparent  upon  the  face  of  the  complaint, 
or  it  appearing  therefrom  that  the  plain- 
tiff has  not  the  legal  capacity  to  sue,  must 
be  taken  advantage  of  by  demurrer,  on 
either  ground,  or  it  is  waived.  Tingley  v. 
Times  Mirror,  151  Cal.  1;  89  Pac.  1097. 
An  objection  for  non-joinder  of  the  hus- 
band, as  a  necessary  party  plaintiff,  in  an 
action  by  the  wife,  must  be  specially  urged 
by  demurrer  if  the  matter  appears  on  the 
face  of  the  complaint,  or  by  answer  if  it 
does  not  so  appear.  Work  v.  Campbell, 
164  Cal.  343;  128  Pac.  943.  Where  new 
parties,  plaintiff  and  defendant,  were 
joined,  in  an  amended  complaint,  without 
leave  of  coiirt,  it  must  be  presumed,  upon 
appeal,  that  such  complaint  was  filed  by 
leave  of  court;  and,  as  it  supersedes  the 
original,  an  objection  thereto  cannot  be 
raised  upon  special  demurrer  to  the  com- 
plaint, but  only  on  motion  to  strike  out. 
Harvey  v.  Meigs,  17  Cal.  App.  353;  119 
Pac.  941. 

Several  causes  of  action  improperly 
united,  or  not  separately  stated.  This  sec- 
tion applies  to  causes  of  action  which 
cannot  be  embraced  in  the  same  action, 
though  separately  stated,  and  not  to  causes 
of  action  which  may  properly  be  joined  in 
the  same  action,  but  which  are  not  sepa- 
rately stated;  the  remedy  for  the  latter 
is  by  motion  to  make  the  pleadings  more 
definite  and  certain.  City  Carpet  Beating 
etc.  Works  v.  Jones,  102'Cal.  506;  36  Pac. 
841;  Bernero  v.  South  British  etc.  Ins.  Co., 
65  Cal.  386;  4  Pac.  382;  Fraser  v.  Oakdale 
Lumber  etc.  Co.,  73  Cal.  187;  14  Pac.  829; 
.Tacob  V.  Lorenz,  98  Cal.  332;  33  Pac.  119; 
Sutter  County  v.  McGriff,  130  Cal.  124;  62 
Pac.  412;  San  Francisco  Paving  Co.  v. 
Fairfield,  134  Cal.  220;  66  Pac.  255;  Mur- 
phy V.  Crowley,  140  Cal.  141;  73  Pac.  820; 
but  see  contra,  McFarland  v.  Holeomb, 
123  Cal.  84;  55  Pac.  761.  The  fact  that 
several  causes  of  action  were  not  sepa- 
rately stated  was  not  ground  of  demurrer 
prior  to  the  amendment  of  1907  to  this 
section.  Huene  v.  Cribb,  9  Cal.  App.  141; 
98  Pac.  78.  A  joinder  of  causes  of  action, 
not  all  belonging  to  any  one  of  the  classes 
mentioned  in  §  427,  ante,  renders  the  com- 
plaint obnoxious  to  a  demurrer  on  the 
ground    that   several    causes   of   action    are 


improperly  united.  Cosgrove  v.  Fisk,  90> 
Cal.  75;  27  Pac.  56;  Watson  v.  San  Fran- 
cisco etc.  R.  R.  Co.,  41  Cal.  17;  Barber 
Asphalt  Paving  Co.  v.  Crist,  21  Cal.  App. 
1;  130  Pac.  435.  Thus,  a  joinder  of  a. 
cause  of  action  for  injuries  to  a  wife, 
with  one  in  favor  of  the  husband  for 
loss  of  the  services  of  and  expenses  in- 
curred for  the  wife,  renders  the  complaint 
subject  to  demurrer  for  an  improper  joinder 
of  causes  of  action  (McKuue  v.  Santa 
Clara  Valley  Mill  etc.  Co.,  110  Cal.  480; 
42  Pac.  980);  but  a  demurrer  for  mis- 
joinder of  causes  of  action  will  not  lie 
because  several  species  of  remedy  may  be 
had  in  the  enforcement  of  a  single  right. 
Beronio  v.  Ventura  County  Lumber  Co., 
129  Cal.  232;  79  Am.  St.  Rep.  118;  61 
Pac.  958.  To  entitle  the  plaintiff  to  puni- 
tive damages  in  an  action  for  trespass 
to  real  property,  circumstances  of  aggra- 
vation must  be  pleaded  in  such  a  man- 
ner as  that  there  shall  be  no  ambiguity 
or  uncertainty  in  determining  that  they 
are  set  forth  solely  for  the  purpose  of  es- 
tablishing such  claim;  and  if  they  ar& 
pleaded  in  such  a  manner  as  would  be 
proper  in  an  action  brought  to  recover 
damages  other  than  those  for  the  tres- 
pass, the  complaint  will,  for  that  reason, 
be  subject  to  a  demurrer  for  misjoinder 
of  causes  of  action.  Lamb  v.  Harbaugh, 
105  Cal.  680;  39  Pac.  56.  While  a  de- 
murrer lies  where  different  causes  of  action 
are  not  separately  stated,  yet  the  fact  that 
two  independent  contracts  are  included  in 
one  count  is  not  prejudicial  error,  where 
they  are  treated  as  one.  Fairchild  etc.  Co. 
V.  Southern  Refining  Co.,  158  Cal.  264; 
110  Pac.  951.  A  complaint  in  an  action 
to  foreclose  a  street  assessment,  which 
otherwise  states  a  good  cause  of  action^ 
is  not  demurrable  because  containing  a 
prayer  for  attorney's  fees.  Millsap  v.  Bal- 
four, 154  Cal.  303;  97  Pac.  668.  The  seek- 
ing of  different  kinds  of  relief  does  not 
establish  different  causes  of  action :  a  de- 
mand for  alternative  monetary  relief  is 
not  subject  to  the  objection  that  the  com- 
plaint states  two  causes  of  action.  Messer 
v.  Hibernia  Sav.  &  L.  Soc,  149  Cal.  122; 
84  Pac.  835. 

Insufficiency  of  facts  to  constitute  a 
cause  of  action.  This  section  applies  to 
those  cases  in  which  no  cause  of  action 
whatever  arises  from  the  complaint,  and 
does  not  include  cases  in  which  misjoinder 
of  parties  appears  upon  the  face  of  the 
pleading.  Summers  v.  Parish,  10  Cal.  347; 
Tatum  v.  Rosenthal,  95  Cal.  129;  29  Am.  St. 
Rep.  97;  30  Pac.  136.  A  general  demurrer 
cannot  reach  objections  going  only  to  a 
part  of  the  cause  of  action.  McCann  v. 
Pennie,  100  Cal.  547;  35  Pac.  158.  In- 
sufficiency of  the  facts  alleged  may  be 
tested  by  general  demurrer.  Callahan  v. 
Broderick,  124  Cal.  80;  56  Pac.  782.  In- 
ferential statements,  or  statements  by  way 
of  recital,  cannot  be  attacked  by  general 


351 


mSUPFlCIENCY  OF  FACTS  TO  CONSTITUTE   CAUSE  OF  ACTION. 


§430 


demurrer:  it  is  available  only  where  there 
is  a  total  absence  of  some  material  fact. 
Bliss  V.  Siioath,  103  Cal.  43;  3G  Pac.  1029; 
Santa  Barbara  v.  Ehlred,  108  Cal.  294;  41 
Pac.  410;  Puller  Desk  Co.  v.  McDade,  113 
Cal.  300;  45  Pac.  694;  McKay  v.  New 
York  Life  Ins.  Co.,  124  Cal.  270;  56  Pac. 
1112.  A  complaint  entitling  the  plaintiff 
to  relief,  either  legal  or  equitable,  is  not 
demurrable  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause 
of  action  (White  v.  Lyons,  42  Cal.  279; 
Mora  V.  Le  l\oy,  58  Cal.  8;  McPhcrson  v. 
Weston,  64  Cal.  275;  30  Pac.  842;  Huls- 
man  v.  Todd,  96  Cal.  228;  31  Pac.  39; 
Whitehead  v.  Sweet,  126  Cal.  67;  58  Pac. 
376;  Jones  v.  Iverson,  131  Cal.  101;  63 
Pac.  135;  Poett  v.  Stearns,  28  Cal.  226); 
and  where  a  complaint  states  a  cause  of 
action  addressed  either  to  the  legal  or 
equitable  side  of  the  court,  it  is  good  as 
against  a  general  demurrer  (Swan  v.  Tal- 
bot, 152  Cal.  142;  17  L.  R.  A.  (N.  S.)  1066; 
94  Pac.  238);  but  the  complaint  must  allow 
a  cause  of  action  in  the  plaintiff,  or  the 
general  demurrer  will  lie:  it  is  not  suffi- 
cient that  it  show  a  cause  of  action  in 
somebody.  Dixon  v.  Cardozo,  106  Cal.  506; 
39  Pac.  857.  A  complaint  sufficient  to  sus- 
tain judgment  is  good  as  against  general 
demurrer.  Lawrence  Nat.  Bank  v.  Kowal- 
sky,  105  Cal.  41;  38  Pac.  517.  A  failure 
to  state  all  the  facts  essential  to  recovery 
mav  be  attacked  bv  general  demurrer. 
Tehama  County  v.  Bryan,  68  Cal.  57;  8 
Pac.  673;  Hariiish  v.  Bramer,  71  Cal.  155; 
11  Pac.  888.  The  pleader,  in  counting 
upon  a  contract  according  to  its  legal  ef- 
fect, is  not  required  to  allege  that  the 
conditions  stated  are  all  of  the  conditions 
of  the  contract.  Smith  v.  Jaecard,  20  Cal. 
App.  280;  128  Pac.  1023.  A  failure  to  al- 
lege the  presentation  of  a  claim  to  the 
administrator  and  a  rejection  by  him, 
before  the  commencement  of  the  action, 
is  a  ground  of  general  demurrer;  without 
it  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action. 
Hentsch  v.  Porter,  10  Cal.  555;  Ellissen  v. 
Halleck,  6  Cal.  .'!S6;  Burke  v.  Mnguire, 
154  Cal.  456;  9S  Pac.  21.  A  failure  to 
allege  non-payment  of  money  sought  to  be 
recovered  may  be  reached  by  general  de- 
murrer, on  the  ground  that  the  complaint 
states  no  cause  of  action.  Grant  v.  Sheerin, 
84  Cal.  197;  23  Pac.  1094;  Richards  v. 
Travelers  Ins.  Co.,  80  Cal.  505:  22  Pac. 
939;  Bliss  V.  Sneath,  103  Cal.  43;  36  Pac. 
1029.  An  insufficient  cause  of  action  in 
intervention  is  properly  met  by  demurrer, 
and  not  by  motion  to  strike  out.  Cameron 
V.  Ah  Quong,  8  Cal.  App.  310;  96  Pac. 
1025.  Where  the  facts  necessary  to  sus- 
tain a  cause  of  action  are  shown  to  ex- 
ist, although  inaccurately  or  ambiguously 
stated,  or  appear  by  necessary  im]>lication, 
a  general  demurrer  to  the  complaint  will 
be  overruled  (Amestov  v.  Electric  Rapid 
Transit    Co.,    95    Cal.    311;    30    Pac.    550); 


such  defects  can  be  reached  only  by  special 
demurrer  (Semi-Tropic  Spiritualists'  Ass'u 
V.  Johnson,  163  Cal.  639;  126  Pac.  488); 
as  the  complaint  will  be  held  good,  where 
the  necessary  allegations  ap])ear  by  way 
of  legal  conclusions,  in  the  absence  of  a 
special  demurrer.  Wells  Pargo  &  Co.  v. 
McCarthy,  5  Cal.  App.  301;  90  Pac.  203. 
If  there  is  not  an  entire  failure  in  a  com- 
plaint to  state  non-payment,  the  averment 
is  simply  defective,  and  can  be  reached 
only  by  special  demurrer  directed  to  that 
point.  Burke  v.  Dittus,  8  Cal.  App.  175; 
96  Pac.  330.  The  failure  of  the  plaintiff, 
in  an  action  on  an  assigned  claim,  to  aver 
that  he  was  the  owner  thereof  at  the  time 
of  the  commencement  of  the  action,  is 
ground  for  special  demurrer,  but  is  good  as 
against  a  general  demurrer.  Krieger  v. 
Feeny,  14  Cal.  App.  538;  112  Pac.  901. 
By  anticipating  a  defense,  in  addition  to 
stating  a  cause  of  action,  the  complaint  is 
not  rendered  bad  as  against  a  general  de- 
murrer. Munson  v.  Bowen,  80  Cal.  572; 
22  Pac.  253.  The  b^r  of  the  statute  of 
limitations  cannot  be  raised  under  a  gen- 
eral demurrer  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause 
of  action.  Brown  v.  Martin,  25  Cal.  82; 
Farwell  v.  .Jackson,  28  Cal.  105;  California 
Safe  Deposit  etc.  Co.  v.  Sierra  Vallevs 
Ry.  Co.,  158  Cal.  690;  Ann.  Cas.  1912A, 
729;  112  Pac.  274.  The  failure  of  a  plain- 
tiff corporation  to  aver  that  it  is  a  cor- 
poration is  not  available,  either  upon 
general  demurrer  for  want  of  a  cause  of 
action,  or  upon  special  demurrer  for  want 
of  capacity  to  sue.  Los  Angeles  Ry.  Co. 
V.  Davis,  146  Cal.  179;  106  Am.  St.  Rep. 
20;  79  Pac.  865.  The  defense  of  laches 
may  be  raised  by  demurrer:  it  is,  in  sub- 
stance, a  defense  that  the  bill  does  not 
show  equity,  or  in  the  language  of  this 
section,  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of 
action.  Kleinclaus  v.  Dubard,  147  Cal. 
245;  81  Pac.  516;  Wadleisrh  v.  Phelps,  149 
Cal.  627;  87  Pac.  93.  A  clerical  error  in  a 
complaint  cannot  be  taken  advantage  of 
bv  general  demurrer.  Blasingame  v.  Home 
Ins.  Co.,  75  Cal.  633;  17  Pac.  925.  An  ob- 
jection that  the  averments  of  a  complaint 
are  contradictory  cannot  be  raised  upon 
a  general  demurrer:  it  must  be  presented 
bv  a  special  demurrer  for  uncertainty 
(Heeser  v.  Miller,  77  Cal.  192;  19  Pac. 
375;  Churchill  v.  Lauer,  84  Cal.  233;  24 
Pac.  107) ;  nor  can  an  objection  to  a  vari- 
ance between  an  exhibit  and  the  allega- 
tions of  a  complaint  be  raised  by  general 
demurrer  (Blasingame  v.  Home  Ins.  Co., 
75  Cal.  633;  17  Pac.  925;  San  Francisco 
Sulphur  Co.  V.  ..^tna  Indemnity  Co.,  11 
Cal.  App.  695;  106  Pac.  Ill);  nor  can  ob- 
jection be  taken  for  defectiveness  in  the 
complaint,  because  the  facts  are  inarlifi- 
cially  stated.  Nevin  v.  Thompson,  4  Cal. 
Unrep.  390;  35  Pac.  160.  A  cause  of  ac- 
tion stated  in  only  one  of  several  counts 


§430 


DEMURRER   TO   COMPLAINT. 


353 


of  a  complaint  is  sufficient  as  against  a 
demurrer  ou  the  ground  "that  said  com- 
plaint does  not  allege  facts  sufficient  to 
constitute  a  cause  of  action."  Jensen  v. 
Dorr,  159  Cal.  742;  116  Pac.  553.  Where 
the  complaint  in  a  suit  brought  for  breach 
of  a  contract  payable  in  installments  fails 
to  show  that  an  installment,  the  payment 
of  which  was  required  under  the  contract, 
had  been  due  and  unpaid  for  the  pre- 
scribed period,  it  shows  no  cause  of  action 
upon  the  contract.  Southern  California 
Music  Co.  V.  Skinner,  17  Cal.  App.  205; 
119  Pac.  106.  Where  there  is  no  attempt 
to  aver  non-payment  of  money  due  upon 
a  contract,  either  by  an  allegation  amount- 
ing only  to  a  conclusion  of  law,  or  other- 
wise, the  complaint  does  not  state  a  cause 
of  action;  and  this  can  be  urged  at  any 
time,  even  without  a  demurrer.  Burke  v. 
Dittus,  8  Cal.  App.  175;  96  Pac.  330.  The 
failure  of  a  corporation  to  allege  that  it 
has  filed  its  articles  is  not  a  failure  to  al- 
lege a  cause  of  action,  and  is  therefore 
not  a  ground  of  den^urrer.  Bernheim  Dis- 
tilling Co.  V.  Elmore,  12  Cal.  App.  So;  106 
Pac.  720;  Eiverdale  Mining  Co.  v.  Wicks, 
14  Cal.  App.  526;  112  Pac.  896.  A  de- 
murrer to  a  complaint  for  a  money  judg- 
ment on  a  promissory  note  and  for  breach 
of  contract,  should  be  sustained,  on  the 
ground  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of 
action,  where  the  note  is  not  due,  and  no 
breach  of  the  contract  is  shown.  Southern 
California  Music  Co.,  17  Cal.  App.  205; 
119    Pac.    106. 

Ambiguity,  uncertainty,  and  unintelligi- 
iDility.  That  the  complaint  is  ambiguous, 
unintelligible,  or  uncertain  is  made  a 
ground  of  demurrer:  a  motion  to  make  it 
more  definite  and  certain  is  not  proper  prac- 
tice. McFarland  v.  Holcomb,  123  Cal.  84; 
55  Pac.  761.  Ambiguity  and  uncertainty 
are  made  separate  grounds  of  demurrer 
by  this  section.  Wilhoit  v.  Cunningham, 
87  Cal.  453;  25  Pac.  675.  Unintelligibility 
is  a  ground  of  demurrer  (Tibbets  v. 
Riverside  Land  etc.  Co.,  61  Cal.  160);  as 
is  also  uncertainty  (Kraner  v.  Halsey, 
82  Cal.  209;  22  Pac.  1137;  Mallory  v. 
Thomas,  98  Cal.  644;  33  Pac.  757;  South- 
ern California  Music  Co.  v.  Skinner,  17 
Cal.  App.  205;  119  Pac.  106;  Du  Bois  v. 
Padgham,  18  Cal.  App.  298;  123  Pac.  207); 
but  uncertainty  does  not  include  ambi- 
guity. Kraner  v.  Halsey,  82  Cal.  209;  22 
Pae.  1137.  The  objection  of  uncertainty 
goes  rather  to  the  doubt  as  to  what  the 
pleader  means  by  the  facts  alleged,  not  to 
the  failure  to  allege  sufficient  facts.  Cal- 
lahan V.  Broderick,  124  Cal.  80;  56  Pac. 
782.  A  complaint  is  neither  ambiguous 
nor  uncertain,  where  the  precise  purpose 
of  the  action  and  the  relief  sought  clearly 
appear.  Doudell  v.  Shoo,  20  Cal.  App. 
424;  129  Pac.  478.  Where  the  complaint 
is  easy  of  comprehension  and  free  from 
reasonable  doubt,  it  is  not  subject  to  de- 
murrer ou  the  ground  of  ambiguity.     Sal- 


mon V.  Wilson,  41  Cal.  595;  Applegarth 
V,  Dean,  68  Cal.  491;  13  Pac.  587;  Kraner 
V.  Halsey,  82  Cal.  209;  22  Pac.  1137; 
Whitehead  v.  Sweet,  126  Cal.  67;  58  Pac. 
376;  Jones  v.  Iverson,  131  Cal.  101;  63 
Pac.  135.  A  mere  clerical  error  in  the 
complaint  is  not  objectionable  to  a  de- 
murrer for  ambiguity,  unintelligibility,  and 
uncertainty.  Fay  v.  McKeever,  59  Cal. 
307;  Hawley  Bros.  Hardware  Co.  v.  Brown- 
stone,  123  Cal.  643;  56  Pac.  468.  A  com- 
plaint which  in  one  part  avers  a  covenant 
for  a  lease,  and  in  another  states  matter 
which  constitutes  a  contract  for  a  present 
lease,  is  ambiguous.  Crow  v.  Hildreth, 
39  Cal.  618.  A  complaint  for  trespass, 
which  fails  to  state  separately  the  items 
of  damages  to  the  premises,  and  the  dam- 
ages sustained  by  injuries  to  the  plain- 
tiff's business,  is  subject  to  a  demurrer  for 
uncertainty.  Mallory  v.  Thomas,  98  Cal. 
644;  33  Pac.  757;  Lamb  v.  Harbaugh,  105 
Cal.  680;  39  Pac.  56.  A  failure  to  set 
forth  the  items  of  an  account  in  a  com- 
plaint is  not  a  ground  for  a  demurrer  for 
ambiguity  or  uncertainty.  Burns  v.  Cush- 
ing,  96  Cal.  669;  31  Pac.  1124;  Rogers  v. 
Duff,  97  Cal.  66;  31  Pac.  836;  Farwell  v. 
Murray,  104  Cal.  464;  38  Pnc  199;  Pleas- 
ant V.  Samuels,  114  Cal.  34;  45  Pac.  998; 
Long  Beach  City  School  Dist.  v.  Dodge, 
135  Cal.  401;  67  Pac.  499.  A  failure  to 
state  the  times  at  which  services  were 
rendered,  or  when  the  claim  for  the  items 
thereof  accrued,  does  not  authorize  a  de- 
murrer for  ambiguitv  or  uncertainty.  Mc- 
Farland V.  Holcomb,  123  Cal.  84;  55  Pac, 
761.  A  failure  to  state,  in  an  action  to 
foreclose  a  lien,  the  date  when  such  lien 
was  filed  and  recoriled,  renders  it  subject 
to  a  demurrer  for  uncertainty.  William- 
son V.  Joyce,  137  Cal.  151;  69  Pac.  980. 
The  objection  that  two  causes  of  action 
are  not  separately  stated  cannot  be  taken 
by  demurrer.  Murphy  v.  Crowley,  140  Cal. 
141;  73  Pac.  820.  A  complaint  to  annul 
a  corporate  assessment  on  the  ffround  of 
illegality  in  the  proceedings,  which  fails 
to  allege  the  matters  constituting  such 
illegality,  is  demurrable  for  uncertainty. 
Hennessey  v.  Alleghany  Mining  Co.,  159 
Cal.  398;  113  Pac.  107l"  Where  the  prop- 
erty of  an  estate,  such  as  notes  and  mort- 
gages, is  alleged  to  have  been  concealed, 
but  uncertainty  appears  in  the  description 
thereof,  and  no  reasonable  excuse  is  given 
why  they  are  not  particularly  describe<l, 
a  special  demurrer  on  such  grounds  is 
properly  sustained.  Burke  v.  Maguire,  154 
Cal.  456;  98  Pac.  21.  Uncertainty,  in 
pleading,  is  not  material,  unless  it  works 
a  substantial  injury.  Krieger  v.  Feeny, 
14  Cal.  App.  538;  li2  Pac.  901.  Less  cer- 
tainty is  required  in  the  allegations  of  the 
complaint,  where  the  facts  are  such  as 
that  plaintiff  cannot,  from  their  nature, 
have  as  full  information  as  the  defendant. 
Harvev  v.  Meigs,  17  Cal.  App.  353;  119 
Pac.  941. 


353 


JURISDICTION — MISJOINDER — INSUFFICIENCY,   ETC. 


§430 


StatiErg  different  cause  of  action  in  different 
counts  under  code.    See  note  72  Am.   Dec.  588. 

Speaking  demurrers.  Sue  note  14  Ann.  Ca«. 
348. 

CODE     COMMISSIONERS'     NOTE.      1.  Court 

has  uu  jurisdiction  of  the  person  of  defeuaaut, 
or  the  subject  of  the  action.  See  Willis  v.  i'ar- 
ley,  li4  Cal.  491;  EUissen  v.  llallecli,  6  Cal. 
iJStJ.  in  courts  of  general  jurisdictiun  the  want 
of  jurisdiction  must  appear  ainrmatively  on  face 
of  complaint,  but  such  is  not  the  case  with  courts 
of  special  or  limited  jurisdiction,  and  in  the  last- 
named  court  every  fact  necessary  to  give  juris- 
diction must  appear  in  the  complaint.  Doll  v. 
Feller,  16  Cal.  4.i2. 

2.  Plaintiff  has  not  legal  capacity  to  sue. 
When  plaintiff  has  not  legal  capacity  to  sue  be- 
cause he  is  not  a  real  party  in  interest.  White 
V.  Steam-tug  Mary  Ann,  6  Cal.  462;  65  Am. 
Dec.   523;   Oliver  v.   Walsh,   G   Cal.   450. 

3.  Another  action  pending  between  same  par- 
ties for  same  cause.  Cunningham  v.  Harris,  5 
Cal.  81  ;  iS'ickerson  v.  California  Stage  Co.,  10 
Cal.  520;  Barnett  v.  Kilbourue,  3  Cal.  327; 
Ayres  v.  Bensley,  32  Cal.  620.  The  defense  of 
a  prior  lis  pendens  is  available,  only  vvliere  the 
plaintiff,  at  least,  in  botli  actions,  is  the  same 
person.  Certain  Logs  of  Mahogany,  2  Sumn. 
593;  Fed.  Cas.  No.  2559;  Wadleigh  v.  Veazie,  3 
Sumn.  165;  Fed.  Cas.  No.  17031;  O'Connor  v. 
Blake,  29  Cal.   314. 

4.  Defect  or  misjoinder  of  parties.  See  §  434, 
post.  Where  a  defect  of  parties  is  apparent  upon 
the  face  of  the  complaint,  the  objection  must  be 
taken  by  demurrer,  or  the  same  will  be  waived. 
Dunn  V,  Tozer,  10  Cal.  170;  VN'arner  v.  Wilson, 
4  Cal.  310;  Andrews  v.  Mokehimne  Hill  Co.,  7 
Cal.  330;  Alvarez  v.  Brannan,  7  Cal.  503;  68 
Am.  Dec.  274;  Eowe  v.  Bacigalluppi,  21  Cal. 
635;  Mott  v.  Smith,  16  Cal.  557;  Sampson  v. 
Schaeffer,  3  Cal.  202;  Beard  v.  Knox,  5  Cal. 
257;  63  Am.  Dec.  125;  Tissot  v.  Throckmorton, 
6  Cal.  473;  McKune  v.  McGarvey,  6  Cal.  498; 
Burroughs  v.  Lott,  19  Cal.  125;  Barber  v.  Rey- 
nolds, 33  Cal.  497.  In  Summers  v.  Farish,  the 
court  seem  to  infer  that  a  demurrer  on  the  ground 
"that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action/'  and  which 
then  specifies  that  the  complaint  shows  no  joint 
cause  of  action  in  the  plaintiff,  and  that  it  prays 
for  a  judgment  in  favor  of  three  plaintiffs  for  an 
injury  done  to  one,  was  a  good  demurrer  for  mis- 
joinder of  parties ;  but  this  point  was  not  ex- 
pressly decided.  See  Summers  v.  Farish,  10  Cal. 
350;  but  see  also  Grain  v.  Aldrich,  38  Cal.  521  ; 
99  Am.  Dec.  423;  Wilson  v.  Castro,  31  Cal. 
427—431.  Although  the  defendant  does  not  de- 
mur for  want  of  parties,  it  does  not  affect  the 
power  of  the  court  under  the  code  (§  389,  ante) 
from  ordering  other  parties  to  be  brought  in, 
when  such  parties  are  necessary  to  a  complete 
determination  of  the  case.  Grain  v.  Aldrich,  38 
Cal.  514;  99  Am.  Dec.  423.  Complaint  is  not 
demurrable  because  the  Christian  names  of  par- 
ties are  not  stated.  Nelson  v.  lligliland,  13  Cal. 
74.  The  court  having  overruled  a  demurrer  made 
by  defendants  on  the  ground  of  a  misjoinder  of 
parties  plaintiff,  the  plaintiffs  then  moved  to  amend 
the  complaint  by  striking  out  the  names  of  the 
plaintiffs  thus  averred  to  be  improperly  joined, 
and  the  defendants  resisted  successfully  such 
motion.  Such  action  on  the  part  of  defendants 
■was  held  to  be  a  w.-iiver  of  the  objection  of  mis- 
joinder raised  bv  their  demurrer.  Summers  v. 
Farish,  10  Cal.  347;  see  §§  367-389,  ante,  and 
notes. 

5.  Several  causes  of  action  improperly  united. 
If  not  demurred  to,  or  the  objection  is  not  made 
by  answer,  it  is  deemed  waived.  Macondray  v. 
Simmons,  1  Cal.  393;  Marius  v.  Bicknell,  10 
Cal.  224;  Gates  v.  Kieff,  7  Cal.  124;  Jacks  v. 
Cooke.  6  Cal.  164.  A  declaration  which  imorop- 
erly  joins  an  action  of  trespass  quare  clausum 
fregit,  ejectment,  and  prayer  for  relief  in  chan- 
cery, is  demurraijle.  Bigelow  v.  Gove,  7  Cal.  134. 
A  demurrer  lies  to  a  complaint  which  asks  for 
equitable  relief,  if  the  law  and  equity  are  in- 
separably mixed  together;  but  a  demurrer  can- 
not be  sustained  on  the  ground,  merely,  that  the 
complaint  seeks  a  remedy  at  law.  ,Tiid  an  enni- 
table   relief  also.     See   Gates  v.   Kieff,   7   Cal.  125; 

1  Fair. — 23 


Weaver  v.  Conger,  10  Cal.  237  ;  Rjllins  t.  Forbes, 
10  Cal.  300;  Marius  v.  Bicknell,  10  Cal.  224; 
but  see  Bigelow  v.  Gove,  7  Cal.  133,  above  cited. 
And  as  to  uniting  improperly  several  causes  of 
action,  see  Kolliiis  v.  Forbes,  10  Cal.  300;  Gale 
v.  Tuolumne  Water  Co.,  14  Cal.  28;  People  v. 
Skidmore,  17  Cal.  200;  Garr  v.  Redman,  6  Cal. 
574;    see   notes   to  §427.  ante. 

6.  When  complaint  does  not  state  facts  suffi- 
cient to  constitute  cause  of  action.  See  notes  to 
§  426,  ante.  But  this  ground  is  confined  to  cases 
in  which  no  cause  of  action  at  all  is  shown  by 
the  complaint.  Summers  v.  Farish,  10  Cal.  347. 
And  if  complaint  contain  several  causes  of  ac- 
tion, and  defendant  demur  to  whole  complaint, 
yet  if  one  cause  of  action  is  good,  although  all 
others  are  bad,  still  the  demurrer  cannot  be  sus- 
tained. Stoddard  v.  Treadwell,  26  Cal.  294. 
It  is  provided  that,  unless  the  demurrer  shall 
distinctly  specify  the  grounds  upon  which  any 
of  the  objections  to  the  complaint  are  taken,  it 
shall  be  disregarded,  excepting,  only,  the  objec- 
tion to  the  jurisdiction  of  the  court;  and  the  ob- 
jection that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  See 
§§  431,  434,  post.  Sections  431  and  434,  post, 
are  to  be  read  in  conjunction.  To  give  effect  to 
the  former,  without  regard  to  the  excepted  ob- 
jections specified  in  the  latter,  would  be  to  abro- 
gate an  important  provision  of  the  statute.  This 
we  have  no  right  to  do,  and  hence  (say  the 
court)  :  "We  hold  the  objection  taken  by  demur- 
rer to  the  complaint,  that  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  to  bo 
well  and  sufficiently  assigned  in  the  language  of 
the  statute."  Kent  v.  Snyder,  30  Cal.  672;  see 
also  Williamson  v.  Blattan,  9  Cal.  501.  A  de- 
fect sufficient  to  defeat  the  present  right  of  plain- 
tiff, in  whole  or  in  part,  may  be  shown  as  a 
ground  of  demurrer.  Hentsch  v.  Porter,  10  Cal. 
555.  If  the  complaint  states  a  condition  prece- 
dent, does  not  show  performance,  the  defect  muat 
be  taken  advantage  of  by  demurrer  in  the  court 
below.  It  is  too  late  to  take  advantage  of  such 
defect  after  verdict.  Happe  v.  Stout,  2  Cal.  460. 
So,  also,  a  similar  rule  prevails  as  to  an  omis- 
sion to  aver  delivery  in  suit  on  a  bond.  Garcia 
V.  Satrustegui,  4  Cal.  244.  A  complaint  dis- 
closing the  fact  that  the  subject  had  been  liti- 
gated in  a  former  suit  between  the  same  par- 
ties, and  that  in  such  action  the  plaintiff  in  this 
action  had  g.'t  up  the  same  equity  whicli  he 
claims  by  this  complaint,  the  complaint  was  held 
bad  on  demurrer,  and  was  ordered  to  be  dis- 
missed. Barnett  v.  Kilbourne.  3  Cal.  327.  Ac- 
tion brought  prematurely,  before  any  injury  had 
occurred,  demurrable  on  ground  that  complaint 
does  not  state  facts  sufficient  to  constitute  cause 
of  action.  (See  facts.)  Harvey  v.  Chilton,  11 
Cal.  114.  An  action  upon  an  undertaking  to  re- 
lease property  from  an  attachment.  The  com- 
plaint did  not  aver  that  the  property  attached 
was  released  upon  the  delivery  of  the  undertak- 
ing, and  it  was  held  that  in  this  respect  it  was 
defective,  and  could  be  taken  advantage  of  by 
demurrer,  on  the  ground  that  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion without  further  specification.  Williamson  v. 
Blattan,  9  Cal.  501  ;  referring  to  Palmer  v.  Mel- 
vin,  6  Cal.  651;  Haire  v.  Baker,  5  X.  Y.  357; 
.Johnson  v.  Wetmore,  12  Barb.  433;  Ellissen  v. 
Halleck,  6  Cal.  386.  Objections  to  the  demand 
for  relief  in  complaint  cannot  be  made  by  de- 
murrer.   Rollins  v.  Forbes,   10   Cal.  299. 

7.  When  the  complaint  is  ambiguous,  unin- 
telligible, or  uncertain.  The  demurrer  should 
specify  in  what  the  uncertainty  or  ambiguity 
consists.  Blanc  v.  Klumpke,  29  Cal.  156;  see 
also  Powell  v.  Ross,  4  Cal.  197.  For  general 
matters,  see  Brown  v.  Martin,  25  Cal.  88;  Men- 
docino County  v.  Morris.  32  Cal.  145;  People  v. 
Love,  25  Cal.  526.  Jf  complaint  unites  two 
causes  of  action  improperly,  or  is  unintelligible, 
ambiguous,  or  uncertain,  these  objections  must 
be  taken  by  demurrer,  or  they  are  waived.  Law- 
rence V.   Montgomery,   37   Cal.   183. 

8.  Demurrers  to  whole  complaint  not  good, 
where  some  of  the  causes  of  action  are  sufficient. 
If,  where  several  causes  of  action  are  alleged, 
there  are  facts  stated  sufficient  to  sustain  any 
one  of  the  causes,  a  demurrer  to  the  whole  com- 
plaint   cannot   be   sustained.     Stoddard   v.   Tread- 


§431 


DEMURRER   TO    COMPLAINT. 


354 


well  2S  Cal.  294;  Barber  v.  Cazalis,  30  Cal. 
92-  ''Whiting  v.  Heslep,  4  Cal.  327;  Weaver  v. 
Conger,  10  Cal.  233;  Young  v.  Pearson,  1  Cal. 
448.  Even  if  demurrer  is  good  as  to  part  of  a 
complaint  (though  not  to  all  of  it),  but  is  made 
to  the  whole,  then  it  cannot  be  sustained.  Peo- 
ple V.  Morrill.   26   Cal.   360. 

9.  Demurrer  when  demand  appears  to  be  barred 
by  statute  of  limitations.  Statute  should  be  dis- 
tinctly stated  in  demurrer.  Brown  v.  Martin,  25 
Cal.  89:  Farwell  v.  Jackson,  28  Cal.  106.  It 
was  formerly  doubted  whether  a  defendant  in 
equity  could,  by  demurrer,  make  the  ob,iectioa 
that  the  remedy  was  barred  by  lapse  of  time,  or 
whether  he  must  not  resort  to  his  plea  (answer); 
but  it  now  seems  to  be  settled  that  if  it  appears 
upon  the  face  of  the  complaint  that  the  suit  is 
barred  by  lapse  of  time,  the  defendant  may  de- 
mur. Humbert  v.  Rector  of  Trinity  Church.  7 
Paige  Ch.  197;  Sublette  v.  Tinney,  9  Cal.  423; 
Smith  V.  Richmond,  19  Cal.  476.  But  the  bar 
must  clearlv  appear,  in  order  to  sustain  demur- 
rer. Ord  V."  De  la  Guerra,  18  Cal.  67;  Smith  v. 
Richmond,  19  Cal.  47G;  Barringer  v.  Warden, 
12   Cal.   313  ;    Grattan  v.  Wiggins,   23   Cal.   16. 

10.  What  is  admitted  by  demurrer.     A  demur- 

§  431.  Demurrer  must  specify  grounds.  May  be  taken  to  part.  May 
answer  and  demur  at  sam.e  time.  The  demurrer  must  distinctly  specify  the 
E^rounds  upon  which  any  of  the  objections  to  the  complaint  are  taken.  Un- 
less it  does  so,  it  may  be  disregarded.  It  may  be  taken  to  the  whole  com- 
plaint, or  to  any  of  the  causes  of  action  stated  therein,  and  the  defendant 

may  demur  and  answer  at  the  same  time. 

Meigs,    17    Cal.    App.    353;    119    Pac.    941; 
Krieger   v.   Feeny,    14    Cal.   App.    538;    112 


rer  admits  the  truth  of  such  facts  as  are  issu- 
able and  well  pleaded  ;  but  it  does  not  admit  the 
conclusions  which  counsel  may  choose  to  draw 
therefrom,  although  they  may  be  stated  in  the 
complaint.  It  is  to  the  soundness  of  those  con- 
clusions, whether  stated  in  the  complaint  or  not, 
that  a  demurrer  is  directed,  and  to  which  it  ap- 
plies the  proper  test.  Branham  v.  Mayor  and 
Common  Council,  24  Cal.  602;  Tuolumne  County 
Water   Co.  v.   Chapman,   8   Cal.   392. 

11.  General  matters.  The  office  of  a  demurrer 
is  to  raise  issues  of  law,  and,  therefore,  it  should 
not  state  facts.  Cook  v.  De  la  Guerra,  24  Cal. 
239.  Courts  take  no  notice  of  mere  defects  in 
form,  where  the  demurrer  is  general.  Phelps  v. 
Owens,  11  Cal.  22;  Otero  v.  Bullard.  3  Cal.  188. 
Demurrer  to  unessential  parts  nf  complaint. 
Green  v.  Palmer,  15  Cal.  411;  76  Am.  Dec.  492. 
Demurrer  must  come  within  one  of  the  seven 
grounds  allowed  by  the  code.  Hentsch  v.  Porter, 
10  Cal.  555.  Objections  to  prayer  of  complaint 
cannot  be  made  by  demurrer.  Rollins  v.  Forbes, 
10  Cal.  299.  If  demurrer  is  overruled,  and  de- 
fendant answers,  such  answer  is  a  waiver  of  the 
demurrer.     De   Boom   v.   Priestly,    1    Cal.    206. 


Legislation  §  431.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §§  41,  42.  These  sec- 
tions read:  "§  41  [New  York  Code,  §  145J.  The 
demurrer  shall  distinctly  specify  the  grounds 
upon  which  any  of  the  objections  to  the  com- 
plaint are  taken.  Unless  it  do  so,  it  may  be 
disregarded."  "§42  [New  York  Code,  §  151]. 
The  defendant  may  demur  to  the  whole  com- 
plaint, or  to  one  or  more  of  several  causes  of 
action  stated  therein,  and  answer  the  residue ; 
or  may  demur  and  answer  at  the  same  time." 

2.  Amendment  by  Stats.  1901,  p.  133;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  706,  changing 
the  word  "or"  to  "and,"  after  "therein." 

Demurrer  must  specify  grounds.  Un- 
less the  demurrer  (lifstiuetl}'  specifies  the 
grounds  upon  which  any  of  the  objections 
to  the  complaint  are  taken,  it  should  be 
disregardeil,  excepting  only  the  objection 
to  the  jurisdiction  of  the  court,  and  the 
objection  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion. Kent  V.  Snyder,  30  Cal.  666.  A  gen- 
eral demurrer  need  not  specify  the  grounds 
on  which  the  objections  to  the  complaint 
are  taken:  it  is  sufficient  if  it  alleges  that 
the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  Ellis- 
sen  V.  Halleck,  6  Cal.  386.  No  particular 
specification  is  required  in  a  demurrer  for 
want  of  facts.  California  Safe  Deposit 
etc.  Co.  V.  Sierra  Vallevs  Rv.  Co.,  158  Cal. 
690;  Ann.  Cas.  1912A,'^729;^  112  Pac.  274. 
A  merely  defective  averment  of  an  es- 
sential allegation  can  be  reached  only  by 
special  demurrer,  directed  to  the  vulner- 
able point.  Burke  v.  Dittus,  8  Cal.  Apji. 
175;  96  Pac.  330.  A  complaint  having 
more  than  one  count  will  stand,  as  against 
a  general  demurrer,  if  any  one  count  states 
a  cause  of  action.  Smith  v.  Jaccard,  20 
Cal.   App.   280;    128   Pac.   1023;   Harvey  v. 


Pac.  901.  A  special  demurrer  to  the  whole 
complaint,  on  the  ground  of  ambiguity 
and  uncertainty,  is  bad,  if  a  good  cause 
of  action  is  elsewhere  stated,  but  is  good 
as  to  the  particular  part  to  which  the 
demurrer  is  directed.  Jones  v.  Iverson, 
131  Cal.  101;  63  Pac.  135.  A  demurrer 
for  ambiguity,  uuintelligibility,  and  un- 
certainty must  specifv  the  particulars  on 
which  it  is  based.  Blanc  v.  Klumpke,  29 
Cal.  156;  Yolo  County  v.  Sacramento,  36 
Cal.  193;  Lorenzana  v.  Camarillo,  45  Cal. 
125;  Demartin  v.  Albert,  GS  Cal.  277;  9 
Pac.  157;  Moyle  v.  Landers,  83  Cal.  579; 
23  Pac.  798;  Daggett  v.  Gray,  110  Cal. 
169;  42  Pac.  568;  A.  F.  Sharpleigh  Hard- 
ware Co.  V.  Kuippenberg,  133  Cal.  308;  65 
Pac.  621.  A  complaint  stating  improperly 
and  defectively  all  the  essential  facts  can 
be  reached  only  by  special  demurrer,  par- 
ticularly designating  the  specific  point  at 
which  it  is  aimed.  Himmelmann  v.  Span- 
agel,  39  Cal.  401;  Tehama  County  v.  Bryan, 
68  Cal.  57;  8  Pac.  673;  Harnish  v.  Bramer, 
71  Cal.  155;  11  Pac.  888;  Grant  v.  Sheerin, 
84  Cal.  197;  23  Pac.  1094;  Eachus  v.  Los 
Angeles,  130  Cal.  492;  SO  Am.  St.  Rep. 
147;  62  Pac.  829;  Merritt  v.  Glidden,  39 
Cal.  559;  2  Am.  Rep.  479;  .Jones  v.  Iverson, 
131  Cal.  101;  63  Pac.  135;  Burke  v.  Dittus, 
8  Cal.  App.  175;  96  Pac.  330.  Particular 
defects  to  which  objection  is  made  for  in- 
sufficiency of  the  complaint,  which  are  not 
specified  in  the  demurrer,  cannot  be  con- 
sidered on  appeal.  Oleovich  v.  Grand 
Trunk  Ry.  Co.,  20  Cal.  App.  349;  129  Pac. 
290.  Where  the  complaint  is  ambiguous 
and     uncertain,    a     demurrer     specifically 


355 


MUST  SPECIFY  GROUNDS — DEMUR  AND   ANSWER  AT  SAME  TIME. 


§431 


stating  these  as  causes  of  demurrer,  and 
giving  the  reasons  therefor,  should  be  sus- 
tained. I'almer  v.  Lavij^ne,  1U4  Cal.  30; 
37  Pac.  775.  A  demurrer  on  the  ground 
that  the  complaint  is  ambiguous,  uncer- 
tain, and  unintelligible,  is  properly  over- 
ruled, where  the  complaint  is  not  defective 
in  all  three  points  (Kraner  v.  Halsey,  82 
Cal.  209;  22  Pac.  1137;  White  v.  Allatt, 
87  Cal.  245;  25  Pac.  420;  Wilhoit  v.  Cun- 
ningham, 87  Cal.  453;  25  Pac.  G75;  Spar- 
gur  V.  Heard,  90  Cal.  221;  27  Pac.  19S; 
Greenebaum  v.  Taylor,  102  Cal.  624;  36 
Pac.  957);  but  where  the  specification  is 
on  the  ground  of  uncertainty  only,  the 
demurrer  will  not  be  overruled,  merely  be- 
cause it  contains  a  conjunctive  assign- 
ment of  ambiguity,  unintclligibility,  and 
uncertainty  (Field  v.  Audrada,  106  Cal. 
107;  39  Pac.  323);  and  a  demurrer  on  the 
ground  that  it  cannot  be  ascertained 
from  the  complaint  what  the  contract 
sued  on  is,  is  insufficient  (Sharpleigh 
Hardware  Co.  v.  Knippenberg,  133  Cal. 
3CS;  65  Pac.  621);  as  is  also  a  demurrer 
for  misjoinder  of  causes  of  action  (O'Cal- 
laghan  v.  Bode.  84  Cal.  489;  24  Pac.  269; 
Healy  v.  Visalia  etc.  R.  R.  Co.,  101  Cal. 
585;  36  Pac.  125);  and  also  one  for  mis- 
joinder of  parties,  which  does  not  specify 
wherein  the  misjoinder  exists.  O'Callaghan 
V.  Bode,  84  Cal.  489;  24  Pac.  269;  Gardner 
V.  Samuels,  116  Cal.  84;  58  Am.  St.  Rep. 
135;  47  Pac.  935.  It  must  specify  the  par- 
ticular misjoinder  (People  v.  Morrill,  26 
Cal.  336) ;  and  who  else  should  have  been 
joined,  or  in  what  manner  the  misjoinder 
consists.  Kreling  v.  Kreling,  118  Cal.  413; 
50  Pac.  546;  Tatum  v.  Rosenthal,  95  Cal. 
129;  29  Am.  St.  Rep.  97;  30  Pac.  136. 
But  a  demurrer  which  specifies  as  one  of 
its  grounds  the  bar  of  the  statute  of  limi- 
tations is  sufficient  (Williams  v.  Bergin, 
116  Cal.  56;  47  Pac.  877);  and  a  statement 
that  the  cause  of  action  is  barred  by  the 
statute  of  limitations  is  sufficient  in  form 
(Brennan  v.  Ford,  46  Cal.  7) ;  but  the  bar 
of  the  statute  must  be  specifically  stated 
in  the  demurrer  as  the  ground  relied  on. 
McFarland  v.  Holcomb,  123  Cal.  84;  55 
Pac.  761;  Brown  v.  Martin,  25  Cal.  82; 
Farwell  v.  .Jackson,  28  Cal.  105.  Except 
where  the  benefit  of  the  statute  of  limita- 
tions is  claimed,  a  general  demurrer  need 
not  specify  the  particulars  wherein  the 
complaint  fails  to  state  facts  sufficient  to 
constitute  a  cause  of  action:  it  is  enough 
to  state  that  the  complaint  does  not  state 
such  facts.  Burke  v.  Maguire,  154  Cal. 
456;  98  Pac.  21.  A  demurrer  for  want  of 
legal  capacity  to  sue  must  point  out 
specifically  such  want  of  cariacitv  (Los 
Angeles  R.  Co.  v.  Davis,  146  Cal.  179;  106 
Am.  St.  Rep.  20;  79  Pac.  865);  and  the 
want  of  legal  capacity  of  the  plaintiff  to 
enter  into  the  contract  sued  on,  in  order 
to  entitle  him  to  recover  therein,  must  be 
distinctly  presented  in  the  demurrer.  Mc- 
Daniel   v.   Yuba    County,    14    Cal.    444.     A 


demurrer  on  the  ground  that  the  plaintiffs 
have  no  legal  capacity  to  sue  is  too  broad, 
where  one  of  the  jdaintiffs  has  the  right. 
O'Callaghan  v.  Bode,  84  Cal.  489;  24  I'ac. 
269.  The  impro]ier  uniting  of  two  causes 
of  action  in  one  count  will  not  be  con- 
sidered upon  appeal,  where  it  was  not 
made  a  ground  of  demurrer.  Bernero  v. 
South  British  etc.  Ins.  Co.,  65  Cal.  386;  4 
Pac.  382.  Inconsistency  between  allega- 
tions in  the  declaration  and  in  the  contract 
on  which  it  is  based  cannot  be  considered, 
when  not  made  one  of  the  grounds  of 
demurrer.  Montifiori  v.  Engels,  3  Cal.  431. 
Where  the  complaint  states  facts  sufficient 
to- constitute  a  cause  of  action  and  to  en- 
title the  plaintiff  to  the  relief  asked,  a 
general  demurrer  thereto  should  be  over- 
ruled. Sisk  V.  Caswell,  14  Cal.  App.  377: 
112  Pac.  185. 

Demurrer  to  whole  or  part  of  complaint. 
Where  the  complaint  states  two  separate 
and  distinct  causes  of  action,  a  general 
demurrer  is  properly  sustained,  if  neither 
count  states  a  cause  of  action:  it  is  not 
necessary  that  the  demurrer  should  refer 
to  either  of  the  counts  separately. 
Churchill  v.  Pacific  Improvement  Co.,  96 
Cal.  490;  31  Pac.  560.  A  demurrer  stating 
only  one  or  more  of  the  grounds  enumer- 
ated in  §  430,  ante,  contains  nothing  irrele- 
vant and  nothing  redundant.  Davis  v. 
Honey  Lake  Water  Co.,  98  Cal.  415;  33 
Pac.  270.  A  demurrer  to  the  whole  com- 
plaint will  be  overruled,  if  any  sufficient 
cause  of  action  is  set  forth  in  the  com- 
plaint. Young  V.  Pearson,  1  Cal.  448; 
Knowles  v.  Baldwin,  125  Cal.  224;  57  Pac. 
988.  A  demurrer,  on  the  ground  of  the 
bar  of  the  statute  of  limitations  to  the 
whole  cause,  will  not  be  sustained,  where 
recovery  can  be  had  for  any  part  of  the 
claim  sued  for.  Movie  v.  Landers,  3  Cal. 
Unrep.  113;  21  Pac' 1133;  Nelson  v.  Mer- 
ced County,  122  Cal.  644;  55  Pac.  421; 
Seehrist  v.  Rialto  Irrigation  Dist.,  129  Cal. 
640;  62  Pac.  261. 

Demur  and  answer  at  the  same  time. 
This  section  authorizes  the  filing  of  a 
demurrer  and  an  answer  at  the  same  time. 
People  V.  McClellan,  31  Cal.  101.  If  the 
defendant  wishes  to  obtain  a  decision 
upon  a  question  of  law  arising  on  the 
face  of  the  complaint,  in  advance  of  the 
trial,  upon  an  issue  of  fact  joined,  the 
proper  practice  is  to  do  so  by  demurrer, 
in  terms,  as  a  distinct  pleading:  the  prac- 
tice of  mixing  matters  of  law  and  fact  in 
the  same  pleading  should  be  discoun- 
tenanced. Brooks  V.  Douglass,  32  Cal.  208. 
An  answer  alleging  that  a  debt,  if  due, 
was  due  to  two  parties  as  partners,  does 
not  amount  to  a  demurrer  to  a  complaint 
in  the  name  of  one  of  such  j)arties:  a 
pleading  which  is  half  demurrer  and  half 
answer  cannot  be  sustained.  Andrews  v. 
Mokelumne  Hill  Co.,  7  Cal.  330.  Where 
there  is  an  answer  to  the  merits  after  the 
filing   of  a  demurrer,   it   will   be   presumed 


§§  432,  433 


DEMURRER   TO    COMPLAINT. 


356 


that  the  demurrer  was  waived.  Moran  v. 
Abbev,  58  Cal.  163;  Bliss  v.  Sneath,  103 
Cal.  43;  36  Pa<'.   1029. 

CODE  COMMISSIOKSRS'  NOTE.  1.  DeiriJrter 
must  distinctly  specify  grounds  of  olDJection.  bee 
note  6  to  §  430,  ante;  also  Kent  v.  Snyder,  30 
Cal.   666. 


2.  Waiver  of  demurrer.  An  answer  put  in 
subsequently  to  a  demurrer,  is  a  waiver  of  tha 
demurrer.  De  Boom  v.  Priestly,  1  Cal.  206; 
Pierce  v.  Minturn,  1  Cal.  470;  Brooks  v.  Miu- 
turn,   1   Cal.  481. 

3.  May  demur  and  answer  at  the  same  time. 
People   V.   McClellan,    31    Cal.    103. 

4.  Demurrer  should  be  filed  as  a  separata 
pleading.    See  Brooks  v.  Douglas,   32  Cal.  208. 


§  432.     What  proceedings  are  to  be  had  when  complaint  is  amended.     If 

the  complaint  is  amended,  a  copy  of  the  amendments  must  be  filed,  or  the 
court  may,  in  its  discretion,  require  the  complaint  as  amended  to  be  filed, 
and  a  copy  of  the  amendments  or  amended  complaint  must  be  served  upon 
the  defendants  affected  thereby.  The  defendant  must  answer  the  amend- 
ments, or  the  complaint  as  amended,  within  ten  days  after  service  thereof, 
or  such  other  time  as  the  court  may  direct,  and  judgment  by  default  may  be 
entered  upon  failure  to  answer,  as  in  other  cases. 

in  the  original  by  the  engrossment  of  the 
comjtlaint  as  amended.  Kediugtou  v. 
Corn  well,  90  Cal.  49;  27  Pac.  40.  Where 
a  judgment  by  default  against  a  defend- 
ant has  been  entered,  service  of  an 
amended  complaint  thereafter  filed  need 
not  be  made  against  such  defendant;  but 
a  complaint  amended  after  default,  and 
before  judgment,  must  be  served.  Cole  v. 
Eoebling  Construction  Co.,  156  Cal.  443; 
105  Pac.  255.  A  new  demurrer  is  not  re- 
quired, where  brief  additions  made  to  a 
complaint,  by  way  of  immaterial  inter- 
lineations, do  not  make  the  pleading  an 
amended  complaint.  Flood  v.  Templeton, 
148  Cal.  374;  83  Pac.  148.  The  service  of 
an  amended  complaint  implies  its  filing. 
Billings  v.  Palmer,  2  Cal.  App.  432;  83 
Pac.   1077. 

CODE    COMMISSIONERS'    NOTE.     It    is    the 

universal  practice  in  this  state  to  answer  amended 
complaints  within  the  same  time  after  service  of 
a  copy  as  in  the  case  of  a  service  of  a  summims 
with  a  copy  of  the  original  complaint,  and  the 
court  seldom  fixes  any  specific  time  for  answer- 
ing in  such  cases.  The  court  has,  undoubtedly, 
the  power  to  fix  the  time,  but  where  no  time  is 
fixed  the  answer  must  be  made  within  the  same 
time  as  is  allowed  in  case  of  service  of  copy  of 
original  complaint  with  summons.  People  v. 
Rains,  23  Cal.  130.  If  the  complaint  is  amended, 
and  defendant  asks  an  order  permitting  his  an- 
swer on  file  to  stand  as  the  answer  to  the 
amended  complaint,  the  answer  is  to  be  treated 
as  if  filed  when  the  order  was  made.  Jlulford  v. 
Estudillo,  32  Cal.  131.  If  the  time  allowed  t) 
answer  is  until  the  plaintiff  shall  select  on  which 
count  of  the  complaint  he  will  go  to  trial,  the 
plaintiff  is  rea,uired  to  serve  a  copy  of  complaint 
with  notice  of  his  election.  Willson  v.  Cleave- 
land,  30  Cal.  192.  As  to  amended  complaint, 
see  also  Nevada  County  etc.  Canal  Co.  v.  Kidd, 
28  Cal.  673. 


Amendment,  generally.    Post,  §§  472,  473. 

Legislation  §  432.  1.  Enacted  March  11,  1873 ; 
based  on  Practice  Act,  §  43,  as  amended  by 
Stats.  1855,  p.  196,  which  read:  "If  the  com- 
plaint be  amended,  a  copy  of  the  amendments 
shall  be  filed,  or  the  court  may  in  its  discretion 
require  the  complaint  as  amended  to  be  filed,  and 
a  copy  of  the  amendments  shall  be  served  upon 
every  defendant  to  be  affected  thereby,  or  upon 
his  attorney,  if  he  has  appeared  by  attorney;  the 
defendant  shall  answer  in  such  time  as  may  be 
ordered  by  the  court,  and  judgment  by  default 
may  be  entered  upon  failure  to  answer,  as  in 
other  cases."  When  enacted  in  1872,  §  432  read: 
"If  the  complaint  is  amended,  a  copy  of  the 
amendments  must  be  filed,  or  the  court  may,  in 
its  discretion,  require  the  complaint,  as  amended, 
to  be  filed,  and  a  copy  of  the  amendments  to  bo 
served  upon  the  defendants  affected  thereby. 
The  defendant  must  answer  the  complaint,  as 
amended,  within  such  time  as  the  court  may 
direct,  and  judgment  by  default  may  be  entered 
upon  failure  to  answer,   as  in  other  cases." 

3.   Amended  by  Code  Amdts.   1S80,  p.  2. 

Proceedings  when  complaint  is  amended. 

This  section  applies  to  amendments  made 
after  answer,  or  after  the  trial  of  an  issue 
of  law  arising  on  demurrer.  McGary  v. 
De  Pedrorena,  58  Cal.  91.  It  also  applies 
to  amendments  made  after  the  parties 
have  been  brought  into  court,  and  does 
not  require  a  mode  of  service  differing 
from  that  in  other  cases.  Dowling  v. 
Comerford,  99  Cal.  204;  33  Pac.  853. 
Where  the  plaintiff  wishes  to  amend  after 
a  demurrer  to  the  complaint  is  sustained, 
he  must  request  leave  at  that  time.  Varni 
V.  Devoto,  10  Cal.  App.  304;  101  Pac.  934. 
An  amendment  to  the  complaint,  whether  it 
consists  of  a  mere  additional  averment  or 
effects  a  change  in  the  original,  may  be 
filed  by  itself,  without  bein?  incorporated 


§  433.     Objection  not  appearing  on  complaint,  may  be  taken  by  answer. 

When  any  of  the  matters  enumerated  in  section  four  hundred  and  thirty 

do  not  appear  upon  the  face  of  the  complaint,  the  objection  may  be  taken 

by  answer. 

Legislation  s  433.     Enacted  March  11,  1872;       the  answer  (Rowe  v.  Chandler,  1  Cal.  167; 

based    on    Prartu-e    Act,  §  44     (New    York    Code,  rpatnm    v     T?n<5PntVinl     Qt    Pn!      I^Q-    "^Q    Am 

§  147),   which   had   "section  fortv"   instead  of  the  latum    V.    Itosentnai,    yo    l.ai.    1-if ,    ^y    Am. 

present  "section  four  hundred  and  thirty."  St.    Rep.    97;    30    PaC.    136);    and    where    it 

Defects  not  appearing  on  face  of  com-  does  not  clearly  appear  on  the  face  of  the 

plaint.     A  defect  not  ajjpearing  on  the  face  complaint,   it   must  be   objected   to  by   an- 

of   the   complaint  may   be   objected   to   by  swer    (Wise   v.   Williams,   72   Cal.   544;    14 


357 


DEFECTS  NOT  APPEARING OBJECTION  WAIVED  WHEN. 


§434 


of  legal  capacity  in  the  plaintiff  to  sue, 
which  does  not  appear  in  the  complaint, 
can  be  raised  only  Ijy  answer  (Swamp  etc. 
Land  District  v.  Feck,  60  Cal.  403) ;  the 
general  issue  is  not  sufficient.  California 
Steam  Nav.  Co.  v.  Wright,  8  Cal.  583.  A 
failure  to  allege  that  the  plaintiff  is  a  cor- 
poration, and  hence  entitled  to  sue,  must 
be  objected  to  by  answer:  it  is  not  avail- 
able upon  general  demurrer.  Los  Angeles 
Ry.  Co.  V.  Davis,  146  Cal.  179;  106  Am.  St. 
Eep.  20;  79  Pac.  865.  The  pendency  of  an- 
other action  is  a  good  plea  in  abatement, 
when  pleaded  in  bar.  Govtino  v.  McAloer, 
4  Cal.  App.  655;  88  Pac.  891.  The  defend- 
ant may  set  up  the  bar  of  the  statute  of 
limitations  either  by  demurrer  or  by  an- 
swer, if  the  complaint  shows  on  its  face 
that  the  statute  has  run;  otherwise  he  must 
plead  his  right  by  answer.  California  Safe 
Deposit  etc.  Co.  v.  Sierra  Valleys  Rv.  Co., 
158  Cal.  690;  Ann.  Cas.  1912A,  729;  112 
Pac.  274. 

CODE  COMMISSIONERS'  NOTE.  If  the  de- 
fect does  not  appear  upon  the  face  of  the  com- 
plaint, the  objection  may  be  taken  by  answar, 
and  where  the  defendant  did  not  know  that  too 
many  parties  were  joined  as  plaintiffs  until  the 
same  was  made  apparent  in  evidence,  he  should 
be  allowed  leave  to  amend  his  answer  during  the 
trial.    Gillam  v.  Sigman,  29  Cal.  637. 


Pac.  204;  and  see  Willis  v.  Farley,  24  Cal. 
490;  Harmon  v.  Page,  62  Cal.  448;  German 
Sav.  &  L.  Soc.  v.  Hutcliinson,  OS  Cal.  52; 
8  Pac.  627;  Williams  v.  Southern  Pacific 
E.  E.  Co.,  110  Cal.  457;  42  Pac.  974),  or  it  is 
deemed  to  be  waived.  Tinglev  v.  Times 
Mirror  Co.,  151  Cal.  1;  89  Pac.  1097.  Equi- 
table considerations  not  appearing  on  the 
face  of  the  complaint  should  be  presented 
by  answer,  where  they  merit  the  attention 
of  the  court,  and  are  sufficient  to  warrant 
the  withholding  of  the  decree  from  the 
plain.tiff.  Lange  v.  Geiser,  138  Cal.  6S2;  72 
Pac.  343.  A  failure  to  serve  a  copy  of  the 
complaint  on  the  defendants  with  the  sum- 
mons must  be  objected  to  by  answer  (Ghi- 
radelli  v.  Greene,  56  Cal.  629) ;  as  must 
also  an  objection  to  misjoinder  of  causes  of 
action  (.Jacks  v.  Cooke,  6  Cal.  164),  and 
also  an  objection  to  misjoinder  of  parties, 
where  the  misjoinder  does  not  appear  on 
the  face  of  the  complaint.  Warner  v.  Wil- 
son, 4  Cal.  310;  Jacks  v.  Cooke,  6  Cal.  164; 
Hastings  v.  Stark,  36  Cal.  122;  Rutenberg 
v.  Main,  47  Cal.  213;  Tingley  v.  Times 
Mirror  Co.,  151  Cal.  1;  89  Pac.  1097.  The 
omission  of  an  affidavit,  essential  to  the 
validity  of  an  assignment,  must  be  objected 
to  by  answer,  where  it  does  not  appear  on 
the  face  of  the  complaint.  Wilhoit  v.  Cun- 
ningham, 87  Cal.  453;  25  Pac.  675.     Want 

§  434.  Objections,  when  deemed  waived.  If  no  objection  be  taken,  either 
by  demurrer  or  answer,  the  defendant  must  be  deemed  to  have  waived  the 
same,  excepting  only  the  objection  to  the  jurisdiction  of  the  court,  and  the 
objection  that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

Legislation  §  434.  Enacted  March  11,  1873; 
based  on  Prac'tice  Act,  §  45  (New  York  Code, 
§  148),  which  had  (1)  the  word  "sach"  after  "If 
no,"  and   (2)   the  word  "shall"  instead  of  "must." 

Defects  waived  by  failure  to  object.     All 

merely  technical  objections  to  the  com- 
plaint are  waived  by  failure  to  demur.  Den- 
nison  v.  Chapman,  105  Cal.  447;  39  Pac.  61. 
An  informality  in  the  pleading  is  waived 
by  failure  to  demur  (Cronise  v.  Carghill,  4 
Cal.  120);  as  is  also  an  objection  to  alle- 
gations, by  way  of  recital.  Fuller  Desk  Co. 
V.  McDade,  113  Cal.  360;  45  Pac.  694. 
Although  defects  in  the  mode  of  alleging  a 
cause  of  action  do  not  impair  the  validity 
of  a  judgment,  yet  they  should  be  presented 
by  special  demurrer.  Schmidt  v.  Market 
Street  etc.  E.  R.  Co.,  90  Cal.  37;  27  Pac.  61; 
Kimball  v.  Richardson-Kimball  Co.,  Ill 
Cal.  386;  43  Pac.  1111;  Bringham  v.  Knox, 

127  Cal.  40;  59  Pac.  198;  Larkin  v.  Mullen, 

128  Cal.  449;  60  Pac.  1091;  Eachus  v.  Los 
Angeles,  130  Cal.  492;  80  Am.  St.  Rep.  147; 
62  Pac.  829.  An  objection  going  to  the 
sufficiency  of  the  statement  of  facts  in  the 
complaint,  but  not  to  the  sufficiency  of  the 
facts  themselves,  is  waived,  unless  pre- 
sented bv  special  demurrer  (Conde  v.  Drei- 
sam  Gold  Mining  Co.,  3  Cal.  App.  583;  86 
Pac.  825);  a  complaint  lacking  the  essen- 
tial and  necessary  allegations  is  not  cured 


by  verdict  or  judgment.  Arnold  v.  Ameri- 
can Ins.  Co.,  148  Cal.  660;  84  Pac.  182.  An 
objection  to  matter  not  appearing  upon  the 
face  of  the  complaint,  except  that  the  com- 
plaint fails  to  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  must  be  taken  by 
answer,  or  it  is  deemed  to  be  waived.  Baker 
&  Hamilton  v.  Lambert,  5  Cal.  App.  708 ;  91 
Pac.  340;  Pryal  v.  Pryal,  7  Cal.  Unrep.  134; 
71  Pac.  802;  Mitau  v.  Roddan,  149  Cal  1; 
6  L.  R.  A.  (N.  S.)  275;  84  Pac.  145;  Tin- 
gley V.  Times  Mirror  Co.,  151  Cal.  1;  89  Pac. 
1097;  Los  Angeles  Ry.  Co.  v.  Davis,  146 
Cal.  179;  106  Am.  St.  Rep.  20;  79  Pac.  865. 
Any  uncertainty  of  statement  in  the  com- 
plaint is  waived,  where  objection  thereto 
was  not  made  in  the  lower  court  (Parke  & 
Lacy  Co.  v.  Inter  Nos  Oil  etc.  Co.,  147  Cal. 
490;  82  Pac.  51);  as  is  also  an  objection 
that  the  complaint  fails  to  contain  certain 
allegations,  which  would  make  it  more  cer- 
tain. Wyman  v.  Hooker,  2  Cal.  App.  36;  83 
Pac.  79.  An  objection  for  want  of  verifi- 
cation is  waived,  if  not  made  before  an- 
swer. Greenfield  v.  Steamer  Gunnell,  6  Cal. 
67.  An  objection  for  failure  to  allege  the 
delivery  of  a  bond  sued  on  is  waived  by 
failure  to  take  advantage  of  it  by  de- 
murrer (Garcia  v.  Satrustegui,  4  Cal.  244); 
as  is  also  an  objection  for  failure  to  allege 


§434 


DEMURRER   TO   COMPLAINT. 


358 


the  performance  of  a  condition  precedent, 
in  an  action  on  a  contract,  setting  up  the 
condition  (Happe  v.  Stout,  2  Cal.  460) ;  and 
also  an  objection  for  failure  to  state  sepa- 
rately a  distinct  cause  of  action  (Valencia 
V.  Couch,  32  Cal.  339;  91  Am.  Dec.  589; 
Bernero  v.  South  British  etc.  Ins.  Co.,  65 
Cal.  386;  4  Pac.  382),  and  an  objection  for 
failure  to  join  the  husband  as  a  party,  in 
an  action  by  the  wife  (Work  v.  Campbell 
164  Cal.  343;  128  Pac.  943);  and  an  ob- 
jection for  misjoinder  of  causes  of  action 
(Macondray  v.  Simmons,  1  Cal.  393;  Jacks 
V.  Cooke,  6  Cal.  164;  Marius  v.  Bicknell,  10 
Cal.  217;  Lawrence  v.  Montgomery,  37  Cal. 
183;  McClory  v.  McClory,  38  Cal."575;  Cox 
V.  "Western  Pacific  R.  E.  Co.,  47  Cal.  87; 
Eoberts  v.  Eldred,  73  Cal.  394;  15  Pac.  16; 
Witkowski  v.  Hern,  82  Cal.  604;  23  Pac. 
132;  Eversdon  v.  Mayhew,  85  Cal.  1;  21 
Pac.  431;  24  Pac.  382;  Healy  v.  Visalia  etc. 
R.  R.  Co.,  101  Cal.  585;  36  Pac.  125;  Mc- 
Kune  V.  Santa  Clara  Vallev  Mill  etc.  Co., 
110  Cal.  480;  42  Pac.  980;  ""Fellows  v.  Los 
Angeles,  151  Cal.  52;  90  Pac.  137);  and  an 
objection  for  misjoinder  of  parties  (Warner 
V.  Wilson,  4  Cal.  310;  -Jacks  v.  Cooke,  6 
Cal.  164;  Tissot  v.  Throckmorton,  6  Cal. 
471;  Dunn  v.  Tozer,  10  Cal.  167;  Van  Maren 
V.  Johnson,  15  Cal.  308;  Mott  v.  Smith,  16 
Cal.  533;  Eowe  v.  Bacigalluppi,  21  Cal.  633; 
Gillam  v.  Sigman,  29  ^Cal.  637;  McKee  v. 
Greene,  31  Cal.  418;  Calderwood  v.  Pyser, 
31  Cal.  333;  Hastings  v.  Stark,  36  Cal.'l22; 
Rutenberg  v.  Main,  47  Cal.  213;  Tennant 
V.  Pfister,  51  Cal.  511;  Heinlen  v.  Heilbron, 
71  Cal.  557;  12  Pac.  673;  Gruhn  v.  Stanley, 
92  Cal.  86;  28  Pac.  56;  Ah  Tong  v.  Earle 
Fruit  Co.,  112  Cal.  679;  45  Pac.  7;  Kerry 
V.  Pacific  Marine  Co.,  121  Cal.  564;  66  Am. 
St.  Rep.  65;  54  Pac.  89;  Hopper  v.  Barnes, 
113  Cal.  636;  45  Pac.  874;  Kippen  v.  Ollas- 
son,  136  Cal.  640;  69  Pac.  293;  Dewey  v. 
Parcells,  137  Cal.  305;  70  Pac.  174);  and 
an  objection  for  non-joinder  of  parties 
(Ashton  V.  Zeila  Mining  Co.,  134  Cal.  408; 
66  Pac.  494;  Reclamation  District  v.  Van 
Loben  Sels,  145  Cal.  181;  78  Pac.  638;  Wil- 
liams V.  Southern  Pacific  R.  R.  Co.,  110  Cal. 
•  457;  42  Pac.  974;  Ah  Tong  v.  Earle  Fruit 
Co.,  112  Cal.  679;  45  Pac.  7;  Smith  v.  Cuca- 
monga  Water  Co.,  160  Cal.  611;  117  Pac. 
764),  where  the  party  not  joined  is  not  an 
indispensable  party.  Potter  v.  Dear.  95  Cal. 
.578;  30  Pac.  777."  An  objection  for  non- 
joinder cannot  be  taken  on  appeal.  Beard 
V.  Knox,  5  Cal.  252;  63  Am.  Dec.  125. 
Where  a  defect  in  parties  plaintiff  is  ap- 
parent upon  the  face  of  the  complaint,  or 
where  it  appears  therefrom  that  plaintiff 
has  not  the  legal  capacity  to  sue,  an  objec- 
tion on  either  ground  must  be  taken  by  de- 
murrer, or  is  waived;  or  if  such  defects  do 
not  appear  upon  the  face  of  the  complaint, 
any  objection  or  defense  thereto  must  be 
taken  advantage  of  by  answer,  or  it  is 
waived.  Tingley  v.  Times  Mirror  Co.,  151 
Cal.  1;  89  Pac.  "l 097.  Where,  in  an  action 
by  heirs,  the  defendant  goes  to  trial  with- 


out raising  the  issue,  by  answer,  that  there 
are  other  heirs,  the  objection  that  there 
are  other  heirs  is  waived.  Salmon  v.  Rath- 
jens,  152  Cal.  290;  92  Pac.  733.  Where  a 
partner  is  sued  individually  upon  a  part- 
nership obligation,  the  plaintiff  may  re- 
cover, if  the  defendant  fails  to  plead  a 
non-joinder  of  his  copartner:  such  failure 
is  a  waiver  of  the  objection.  Baker  &  Ham- 
ilton v.  Lambert,  5  Cal.  App.  70S;  91  Pac. 
340.  The  non-joinder  of  a  tenant  as  a 
party  to  an  injunction  suit  cannot  be  urged, 
when  not  raised  by  demurrer  or  answer. 
Farmer  v.  Behmer,  9  Cal.  App.  773;  100 
Pac.  901.  Objection  to  defect  of  parties 
cannot  be  taken  by  nonsuit  (Whitney  v. 
Stark,  8  Cal.  514;  68  Am.  Dec.  360;  Rowe 
V.  Bacigalluppi,  21  Cal.  633;  Pavisich  v. 
Bean,  48  Cal.  364;  Williams  v.  Southern 
Pacific  R.  Co.,  110  Cal.  457;  42  Pac.  974); 
hence,  a  failure  properly  to  object  renders 
valid  a  judgment  against  those  named 
therein,  and  authorizes  its  introduction  un- 
der the  averments  of  the  original  com- 
plaint, in  an  action  on  such  judgment. 
Lewis  V.  Adams,  70  Cal.  403;  59  Am.  Rep. 
423;  11  Pac  833.  A  defect  of  parties  plain- 
tiff, which  does  not  appear  upon  the  face 
of  the  complaint,  is  waived,  unless  objec- 
tion thereto  is  raised  by  answer.  Russ  v. 
Tuttle,  158  Cal.  226;  ll'o  Pac.  813.  Want 
of  legal  capacity  of  the  plaintiff  to  sue  is 
waived,  where  not  objected  to  by  demurrer 
or  answer.  Phillips  v.  Goldtree,  74  Cal.  151; 
13  Pac.  313;  15  Pac.  451;  Baldwin  v.  Sec- 
ond Street  Cable  R.  R.  Co.,  77  Cal.  390;  19 
Pac.  644;  Quan  Wye  v.  Chin  Lin  Hee,  123 
Cal.  185;  55  Pac.  783;  Susanville  v.  Long, 
144  Cal.  362;  77  Pac.  987;  Cook  v.  Fowler, 
101  Cal.  89;  35  Pac.  431.  An  objection, 
that  a  cause  of  action  failed  to  state  the 
appointment  of  a  guardian  ad  litem,  not 
having  been  taken  by  demurrer  or  answer, 
is  waived,  and  cannot  be  raised  on  appeal 
(Wedel  v.  Herman,  59  Cal.  507) ;  and  an 
objection  amounting  to  grounds  of  special 
demurrer  will  not  be  considered  for  the 
first  time  on  appeal  (Gale  v.  Tuolumne 
County  Water  Co.,  44  Cal.  43);  and  the 
objection  is  waived,  by  a  failure  to  plead 
in  abatement  that  articles  of  incorporation 
have  not  been  filed  (Southern  Pacific  R.  R. 
Co.  V.  Purcell,  77  Cal.  69;  18  Pac.  886; 
Ontario  State  Bank  v.  Tibbits,  80  Cal.  68; 
22  Pac.  66;  South  Yuba  Water  etc.  Co.  v. 
Rosa,  80  Cal.  333;  22  Pac.  222;  Riverdale 
Mining  Co.  v.  Wicks,  14  Cal.  App.  526;  112 
Pac.  896)  ;  and  that  a  foreign  corporation 
has  not  complied  with  the  statute  authoriz- 
ing it  to  do  business  in  the  state.  Bern- 
heim  Distilling  Co.  v.  Elmore,  12  Cal.  App. 
85;  106  Pac.  720.  The  privilege  of  the  stat- 
ute of  limitations  is  waived,  if  not  taken 
advantage  of  by  demurrer  or  answer  (Grat- 
tan  V.  Wiggins,  23  Cal.  16;  Brown  v.  Mar- 
tin, 25  Cal.  82;  People  v.  Broadway  Wharf 
Co.,  31  Cal.  33;  Kelley  v.  Kriess,  68  Cal. 
210;  9  Pac.  129;  Gilbert  v.  Sleeper,  71  Cal. 
290;  12  Pac.  172;  Reagan  v.  Justice's  Court, 


359 


WAIVER  OP  OBJECTIONS — ANSWER  TO  CONTAIN  WHAT. 


§437 


7."  Cal.  2.".T;  17  Pac.  19,3;  Allen  v.  Haley, 
77  Cal.  575;  20  Pac.  90);  and  where  the  de- 
fendant seeks,  by  general  demurrer,  to 
avail  himself  of  the  personal  privilege  of 
the  bar  of  the  statute,  he  must  specify  such 
privilege  as  a  particular  ground  of  his  gen- 
eral demurrer,  or  it  is  deemed  to  be  waived. 
Burke  v.  Maguire,  154  Cal.  4.j6;  98  Pac.  21. 
Although  it  a]ipears  upon  the  face  of  the 
complaint  that  the  cause  of  action  is 
barred,  yet  the  privilege  is  not  waived  by 
a  failure  to  demur,  as  it  may  be  set  up  by 
answer.  California  Safe  De])Osit  etc.  Co.  v. 
Sierra  Vallevs  Ry.  Co.,  158  Cal.  690;  Ann. 
Cas.  1912A,  729;  112  Pac.  274.  An  objec- 
tion that  securities  sued  on  do  not  import 
a  consideration  must  be  taken  advantage 
of  by  demurrer,  or  it  is  waived.  Powell  v. 
Eoss,  4  Cal.  197.  A  defect  in  the  title,  in 
not  showing  the  trust  relation  of  the  plain- 
tiffs, cannot  be  objected  to  otherwise  than 
by  special  demurrer.  Lasar  v.  .Johnson,  125 
Cal.  549;  58  Pac.  161.  Objection  to  the 
failure  to  allege  the  presentation  of  a  claim 
to  the  administrator  of  an  estate  is  waived 
by  a  failure  to  demur  on  such  grounds;  the 
objection  that  the  complaint  was  not  suffi- 
ciently definite  and  certain,  and  that  it  did 
not  state  facts  sufficient  to  constitute  a 
<>ause  of  action,  does  not  raise  the  ques- 
tion. Hentsch  v.  Porter,  10  Cal.  555;  Chase 
V.  Evov,  58  Cal.  .348;  Coleman  v.  Wood- 
-worth, '28  Cal.  567;  Bank  of  Stockton  v. 
Howland,  42  Cal.  129;  Bemmerlv  v.  Wood- 
ward, 124  Cal.  568;  57  Pac.  561.  Where 
one  count  of  a  complaint  is  good,  the  ob- 
jection that  the  other  counts  do  not  state 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion, is  not  waived  by  failure  to  demur. 
Lyden  v.  Spohn-Patrick  Co.,  155  Cal.  177; 
100  Pac.  2.36.  An  error  in  overruling  a  de- 
murrer to  a  complaint  is  cured,  where  the 
plaintiff  subsequently  amends  his  complaint 
in  the  particular  to  which  the  demurrer 
was  directed,  and  the  amended  complaint 
is  not  demurred  to.  Walsh  v.  McKeen,  75 
Cal.  519;  17  Pac.  673. 

Objection  for  insufficiency  of  facts,  not 
■waived.  An  objection  that  the  complaint 
does  not  state  facts  sufficient  to  constitute 
a   cause   of  action,   may  be   urged   at   any 


time,  without  demurrer  (Flood  v.  Temple- 
ton,  148  Cal.  374;  83  Pac.  148;  Arnold  v. 
American  Ins.  Co.,  148  Cal.  6(30;  St  Pac. 
182;  Neale  v.  Morrow,  163  Cal.  445;  145 
Pac.  1052;  Wells  Fargo  &  Co.  v.  McCarthy, 
5  Cal.  App.  301;  90  Pac.  203;  Burke  v. 
Dittus,  8  Cal.  App.  175;  96  Pac.  330;  Cam- 
eron V.  Ah  Quong,  8  Cal.  App.  310;  96  Pac. 
1025),  except  where  the  benefit  of  a  per- 
sonal privilege,  such  as  the  statute  of  limi- 
tations, is  claini(>d;  consequently,  an  objec- 
tion to  the  failure  of  the  comjdaint  against 
an  estate,  on  a  contract,  to  allege  the  pre- 
sentation of  a  claim  to  the  administrator  is 
not  waived,  nor  has  the  administrator  any 
power  to  waive  it.  Burke  v.  Maguire,  154 
Cal.  456;  98  Pac.  21.  Where  the  complaint 
of  an  intervener,  upon  which  the  judgment 
in  his  favor  is  based,  fails  to  state  a  cause 
of  action  for  want  of  essential  facts,  objec- 
tion thereto  is  not  waived  by  failure  to  de- 
mur. Cameron  v.  Ah  Quong,  8  Cal.  App.  310; 
96  Pac.  1025.  A  stipulation  that  a  general 
demurrer  may  be  overruled  does  not  estop 
the  defendant  from  relying  on  the  failure 
of  the  complaint  to  state  a  cause  of  action, 
at  any  subsequent  stage  of  the  proceed- 
ings. Hitchcock  V.  Caruthers,  82  Cal.  523; 
23  Pac.  48;  Evans  v.  Gerken,  105  Cal.  311; 
38  Pac.  725;  Morris  v.  Courtney,  120  Cal. 
63;  52  Pac.  129.  The  fact  that  the  de- 
murrer was  overruled  by  consent  does  not 
preclude  the  defendant  from  attacking  the 
judgment  on  the  ground  that  it  rests  on  a 
complaint  inherently  defective.  Banburv 
v.  Arnold,  91  Cal.  606;  27  Pac.  934;  Jones 
V.  Los  Angeles  etc.  Ry.  Co.,  4  Cal.  Unrep. 
755;  37  Pac.  656.  The  failure  of  the  com- 
plaint to  state  facts  sufficient  to  constitute 
a  cause  of  action  cannot  be  disregarded  on 
appeal,  though  a  demurrer  was  interposed 
on  such  ground  and  overruled.  Conde  v. 
Dreisam  Gold  Mining  Co.,  3  Cal.  App.  583; 
86  Pac.  825;  Haskell  v.  Moore,  29  Cal. 
437.  A  general  demurrer  is  not  waived  by 
the  filing  of  an  answer  subsequently  to 
the  overruling  of  the  demurrer.  Hurlev  v. 
Ryan,  119  Cal.  71;  51  Pac.  20;  Curtiss  v. 
Bachman,  84  Cal.  216;  24  Pac.  379. 

CODE  COMMISSIONERS'  NOTE.    See    note  8 
to  §  430,  ante. 


CHAPTER  IV. 

ANSWEE. 


§  437.     Answpr,  what  to  ront;iin. 

§  437a.  Actions  to  recover  insurance.  What  de- 
fendant claiming  exemption  must  set 
up. 

§  438.     When  counterclaim  may  be  set  up. 

§  439.  When  defendant  omits  to  set  up  counter- 
claim. 


§  440.  Counterclaim  not  barred  by  death  or  as- 
siynmont. 

§  441.  Answer  may  contain  several  grounds  of 
defense.  Defendant  may  answer  part 
and  demur  to  part  of  complaint. 

§  442.     Cross-complaint. 


§  437.     Answer,  v/hat  to  contain.     The  answer  of  the  defendant  shall  con- 
tain : 

1.  A  general  or  specific  denial  of  the  material  allegations  of  the  complaint 
controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or  counterclaim. 


§437 


ANSWER. 


360 


If  the  complaint  be  verified,  the  denial  of  each  allegation  controverted 
must  be  specific,  and  be  made  positivel}^  or  according  to  the  information 
and  belief  of  the  defendant.  If  the  defendant  has  no  information  or  belief 
upon  the  subject  sufficient  to  enable  him  to  answer  an  allegation  of  the  com- 
plaint, he  may  so  state  in  his  answer,  and  place  his  denial  on  that  ground. 
If  the  complaint  be  not  verified,  a  general  denial  is  sufficient,  but  only  puts 
in  issue  the  material  allegations  of  the  complaint. 

373;  105  Pac.  130.  If  several  material 
facts  are  stated  conjunctively  in  a  verified 
complaint,  an  answer  which  undertakes  to 


Fleas  in  abatement.    See  ante,  §  430. 
Amendment.    Post,  §§  472,  473. 
Appearance,  answering  is.      Post,  §  1014. 
Counterclaim.     Post,  §§  438-441. 
Cross-complaint.    Post,  §  442. 
Death  of  party.     Ante,  §  385. 
Disability  of  party.    Ante,  §  385. 
Errors   and   defects   to   be    disregarded. 


Post, 


§4^ 


Gold,  coin,  etc.  Allegations  as  to  money  being 
payable  in,  should  be  denied.    Post,  §  667. 

Striking  out.     Post,  §  453. 

Supplemental  answer.    Post,  §  464. 

Time  to  answer,  extension  of.     Post,  §  1054. 

Writing,  setting  forth,  in  answer,  effect  of. 
Post,  §§  448,  449. 

Particular  actions,  answers  in.  See  specific 
title. 

Legislation  §  437.  1.  Enacted  March  11,  1873; 
evidently  based  on  Practice  Act,  §  46,  as  amended 
by  Stats.  1865-66,  p.  702,  which  read:  "The 
answer  of  the  defendant  shall  contain:  1.  If 
the  complaint  be  verified,  a  specific  denial  to 
each  allegation  of  the  complaint  controverted  by 
the  defendant,  or  a  denial  thereof  according  to 
his  information  and  belief;  if  the  complaint  be 
not  verified,  then  a  general  denial  to  each  of  said 
allegations,  but  a  general  denial  shall  only  put 
in  issue  the  material  and  express  allegations  of 
the  complaint.  2.  A  statement  of  matter  in 
avoidance,  a  counterclaim  constituting  a  defense, 
or  the  subject-matter  of  cross-complaint  which 
may  entitle  a  defendant  to  relief  against  the 
plaintiff  alone,  or  against  the  plaintiff  and  a  co- 
defendant."  When  enacted  in  1872,  (1)  in 
subd.  1,  (a)  "shall  only  put"  was  changed  to 
"only  puts."  and  (b)  the  words  "and  express" 
were"  stricken  out  before  "allegations';  (2)  subd. 
2  was  changed  to  read,  "2.  A  statement  of  any 
new  matter  in  avoidance,  or  constituting  a  de- 
fense  or  counterclaim." 

2,   Amended   by  Code  Amdts.  1873-74,  p.  300. 

Form  of  denial.  Any  form  of  denial 
•which  fairly  meets  and  traverses  the  alle- 
gations is  admissible;  the  form  of  the 
denial,  if  not  evasive,  is  immaterial ;  it  may 
be  a  direct  denial,  or  an  assertion  contro- 
verting what  the  plaintiff  allecres.  Hill  v. 
Smith,  27  Cal.  476.  The  fact  that  the  trav- 
erse is  in  an  affirmative  instead  of  a  nega- 
tive form  is  immaterial  (Scott  v.  Wood, 
81  Cal.  398;  22  Pac.  871);  and  it  is  not 
essential  that  the  traverse  shall  be  ex- 
pre.ssed  in  negative  words:  an  averment,  in 
the  answer,  controverting  what  is  alleged 
in  the  complaint,  is  equivalent  to  a  denial 
(Perkins  v.  Brock,  80  Cal.  320;  22  Pac.  194; 
Stetson  V.  Briggs,  114  Cal.  511;  46  Pac. 
603);  and  an  affirmative  allegation  in  the 
com[ilaint  may  be  traversed  in  the  answer 
by  an  affirmative  allegation  inconsistent 
with  it.  Siter  v.  Jewett,  33  Cal.  92;  Church- 
ill V.  Baumann,  95  Cal.  541;  3  Pac.  770. 
The  statement  that  the  defendant,  for  an- 
swer, says  that  he  denies,  etc.,  is  a  good 
denial  (Espinosa  v.  Gregory,  40  Cal.  58); 
but  a  denial  in  the  conjunctive  is  bad. 
Bartlett  Estate  Co.  v.  Fraser,  11  Cal.  App. 


deny  these  averments  as  a  whole,  conjunc- 
tively stated,  is  evasive,  and  an  admission 
of  the  allegations  thus  attempted  to  be 
denied.  Doll  v.  Good,  38  Cal.  287;  Gulf  of 
California  Nav.  etc.  Co.  v.  State  Investment 
etc.  Co.,  70  Cal.  586;  12  Pac.  473;  Westbay 
V.  Gray,  116  Cal.  660;  48  Pac.  800;  Duck- 
worth V.  Watsonville  Water  etc.  Co.,  150 
Cal.  520;  89  Pac.  338;  Blodgett  v.  Scott,  11 
Cal.  App.  310;  104  Pac.  842;  Kinney  v. 
Maryland  Casualty  Co.,  15  Cal.  App.  571, 
573;  115  Pac.  456.  The  defendant  is  not 
required  to  deny  the  allegations  in  any 
more  specific  language  than  that  in  which 
they  are  set  forth  in  the  complaint.  Mc- 
Donald V.  Pacific  Debenture  Co.,  146  Cal. 
667;  80  Pac.  1090.  An  issue  is  made  up 
when  a  proposition  is  affirmed  on  one  side 
and  denied  on  the  other,  and  it  is  immate- 
rial whether  the  denial  precedes  or  follows 
the  affirmation;  where  a  negative  allega- 
tion is  necessary  in  stating  the  cause  of 
action,  it  must,  of  course,  precede  an  aver- 
ment of  the  fact  negatived,  but  its  position 
upon  the  record  does  not  render  it  inoper- 
ative or  useless;  it  constitutes  the  basis  of 
the  issue  joined  by  the  subsequent  aver- 
ment, and  the  latter  operates  as  a  traverse, 
and  not  as  an  averment  of  new  matter. 
Frisch  v.  Caler,  21  Cal.  71.  The  answer  i's 
sufficient  if  it  states  facts  inconsistent  with 
the  allegations  of  the  complaint,  and  which, 
if  true,  would  defeat  the  plaintiff's  right  to 
recover.  Pfister  v.  Wade,  69  Cal.  133;  10 
Pac.  369.  Any  allegation  in  the  answer, 
which,  if  found  to  be  true,  necessarily 
shows  that  the  allegation  of  the  complaint, 
as  to  the  same  matter,  is  untrue,  is  a  good 
traverse,  and  sufficient  as  a  denial.  Burris 
V.  People's  Ditch  Co.,  104  Cal.  248;  37  Pac, 
922.  The  defendant  should  set  forth  the 
true  nature  of  his  defense  in  his  answer. 
Walton  V.  Minturn,  1  Cal.  362.  A  denial, 
whether  general  or  special,  puts  in  issue 
only  the  allegations  of  the  complaint;  the 
difference  between  a  general  and  a  special 
denial,  in  this  respect,  is  only  in  the  extent 
to  which  the  allegations  are  traversed. 
Coles  v.  Soulsby,  21  Cal.  47. 

The  general  denial.  The  common-law  rule 
has  been  changed  as  to  what  may  be  proved 
under  the  general  issue,  so  that,  under  our 
system,  a  special  defense  must  be  specially 
pleaded;  a  general  denial  puts  in  issue  only 
the  material  allegations  of  the  complaint 
(Elder  v.  Spinks,  53  Cal.  293;  Michalitschke 


361 


DENIAL — THE  GENERAL  AND  THE  SPECIFIC. 


§437 


Bros.  &  Co.  V.  Wells  Fargo  &  Co.,  118  Cal. 
683;  50  Pac.  847),  and  puts  in  issue  only 
the  material  allofiations  of  an  unverified 
complaint.  Glazier  v.  Clift,  10  Cal.  803; 
Mentone  Irrij^ation  Co.  v.  Kcdlands  Elec- 
tric Litjht  etc.  Co.,  155  Cal.  323;  7  Ann. 
Cas.  1222;  22  L.  R.  A.  (N.  S.)  382;  100  Pac. 
1082;  San  Francisco  Commercial  Agency  v. 
Widemann,  19  Cal.  App.  209;  124  Pac.  1056. 
A  denial,  whether  general  or  special,  puts 
in  issue  only  the  allegations  of  the  com- 
plaint: the  difference  between  a  general 
and  a  special  denial,  in  this  respect,  is  only 
iu  the  extent  to  which  the  allegations  are 
traversed.  Coles  v.  Soulsby,  21  Cal.  47.  A 
general  denial  of  an  unverified  complaint 
to  quiet  title  puts  iu  issue  the  plaintiff's 
interest  in  or  ownership  of  the  land  (Pen- 
nie  V.  Hildreth,  81  Cal.  127;  22  Pac.  398); 
and  a  general  denial  of  an  unverified  com- 
plaint by  an  administrator  puts  in  issue 
the  appointment,  qualification,  etc.,  of  the 
plaintiff  (Pennie  v.  Hildreth,  81  Cal.  127; 
22  Pac.  398) ;  and  a  general  denial  of  value, 
in  such  a  complaint,  puts  in  issue  the  value. 
Paden  v.  Goldbaum,  4  Cal.  Unrep.  767;  37 
Pac.  759.  A  general  denial  of  an  unveri- 
fied complaint,  in  an  action  by  the  assignee 
of  a  cause  of  action,  puts  in  issue  the  as- 
signment and  the  plaintiff's  right  to  sue, 
and  the  burden  is  upon  the  plaintiff  to 
prove  the  assignment.  Brown  v.  r^urtis.  12S 
Cal.  193;  60  Pac.  773.  In  ejectment,  the 
defendant  may,  under  a  general  denial, 
show  that  the  consideration  of  the  deed, 
upon  which  the  plaintiff  bases  his  title  and 
right  of  entry,  was  illegal,  and  the  deed 
therefore  void.  Sparrow  v.  Rhoades,  76 
Cal.  208;  9  Am.  St.  Rep.  197;  18  Pac.  245. 
The  general  denial  has  the  same  influence 
as  the  general  issue  at  common  law  (Pierev 
V.  Sabin,  10  Cal.  22;  70  Am.  Dec.  692; 
Gavin  v.  Annan,  2  Cal.  494,  and  McLarren 
V.  Spalding,  2  Cal.  510),  and  should  not  be 
stricken  out  as  sham  or  frivolous;  under  it, 
payment  or  failure  of  consideration  may  be 
proved;  it  admits  nothing,  under  our  stat- 
ute, but  the  execution  of  the  instrument 
declared  on.  Brooks  v.  Chilton,  6  Cal.  640. 
A  general  denial  of  an  unverified  complaint 
on  a  promissory  note  does  not  put  in  issue 
the  due  execution  of  the  note;  hence  judg- 
ment cannot  be  rendered  against  the  de- 
fendant on  the  pleadings  (Hastings  v.  Dol- 
larhide,  18  Cal.  390;  Davanay  v.  Eggcnhoff, 
43  Cal.  395);  and  the  denial  cannot  be 
stricken  out  as  sham;  the  defendant  has 
the  right  to  put  the  plaintiff  to  proof  of 
his  demand,  and  require  that  he  establish 
it  by  evidence  admissible  for  such  purpose. 
Fay  V.  Cobb,  51  Cal.  313.  A  want  of  lc?al 
capacity  to  sue  is  a  personal  disability, 
that  may  or  may  not  be  set  up  by  the  de- 
fendant: a  general  denial  does  not  raise 
this  issue.  California  Steam  Nav.  Co.  v. 
Wrieht,  8  Cal.  585;  White  v.  Moses,  11  Cal. 
6S;  Bank  of  Shasta  v.  Bovd,  39  Cal.  604; 
34  Pac.  337;  Brown  v.  Curtis,  128  Cal.  193; 
60  Pac.  773.  The  allegation  of  non-pay- 
ment   of    a    promicsory    note    is    material: 


when  the  complaint  is  not  verified,  non- 
payment is  put  in  issue  by  a  general  denial. 
Ba'nk  of  Shasta  v.  Boyd",  99  Cal.  604;  34 
Pac.  337. 

The  specific  denial.  Tf  no  general  denial 
is  made,  and  specific  denials  are  resorted 
to,  there  must  be  an  actual  <lcnial,  and  not 
one  evasive  in  form  and  substance.  Mars- 
ters  V.  Lash,  61  Cal.  622.  The  rules  of 
pleading,  under  our  system,  are  intended 
to  prevent  evasion,  and  to  require  a  denial 
of  every  specific  averment  in  a  sworn  com- 
plaint, in  substance  and  in  spirit,  and  not 
merely  a  denial  of  its  literal  truth:  when- 
ever the  defendant  fails  to  make  such  de- 
nial, he  admits  the  averment.  Doll  v.  Good, 
38  Cal.  287  This  was  the  law  of  the  old 
equit}'  system  of  pleading,  the  rules  of 
which  were  probably  the  most  perfect  for 
the  elucidation  of  truth  ever  devised,  and 
they  are  not  less  the  rules  of  our  present 
system.  Blankman  v.  Vallejo,  15  Cal.  638. 
The  allegations  of  a  pleading  are  taken 
most  strongly  against  the  pleader;  hence, 
it  is  necessary  that  he  should  make  with 
distinctness  and  precision,  and  without 
evasion,  the  allegations;  where  the  plead- 
ings are  verified,  it  is  necessary  to  shape 
their  allegations  and  denials  so  as  to  cor- 
respond with  at  least  the  admitted  facts. 
Landers  v.  Bolton,  26  Cal.  393.  The  eva- 
sion of  a  material  or  controlling  allegation 
of  the  complaint  is  a  significant  circum- 
stance against  the  defendant.  Baker  v. 
Baker,  13  Cal.  87.  In  an  action  to  fore- 
close a  mortgage,  a  denial  of  the  authority 
of  the  officers  of  the  corporation  defendant 
to  execute  the  mortgage,  without  a  denial 
of  a  ratification  alleged,  does  not  raise  a 
material  issue,  and  the  plaintiff  is  entitled 
to  judgment.  Gribble  v.  Columbus  Brew- 
ing Co.,  100  Cal.  67;  34  Pac.  527.  In  an 
action  to  foreclose  a  laborer's  lien,  a  denial 
that  the  plaintiff  did  work  "as  a  miner"  is 
equivocal  and  evasive,  and  raises  no  issue. 
Curnow  v.  Happy  Valley  etc.  Hydraulic 
Co.,  68  Cal.  262;  9  Pac.  149.  In  an  action 
against  the  indorser  of  a  note,  a  denial  of 
due  or  legal  notice  of  the  presentation  of 
the  note  for  payment,  and  of  the  non-pay- 
ment thereof,  raises  no  issue  of  fact.  Young 
V.  Miller,  63  Cal.  ."02.  A  denial  that  an 
official  act  alleged  was  originally  per- 
formed by  the  officer  in  his  official  capa- 
city is  evasive,  and  tenders  no  material 
issue.  Shepard  v.  McNeil,  33  Cal.  72.  To 
deny  that  no  part  of  the  principal  sum 
mentioned  in  a  promissory  note  sued  on 
has  been  paid,  and  to  deny  that  the  whole 
of  the  principal  sum  and  interest  has  not 
been  paid,  is  evasive,  and  does  not  present 
a  sufficient  denial  of  an  allegation  of  non- 
payment. Westbay  v.  Gray,  116  Cal.  660; 
48  Pac.  800.  A  denial  of  the  value  of  prop- 
erty sued  for,  in  the  language  of  the  com- 
plaint, is  evasive  and  of  no  effect.  Mars- 
ters  V.  Lash,  61  Cal.  622.  A  release  should 
be  specially  pleaded.  Grunwald  v.  Freese, 
4  Cal.  Unrep.  182;  34  Pac.  73. 


§437 


ANSWER. 


362 


Denial  of  material  or  immaterial  allega- 
tions. A  mere  denial  that  the  plaintiff  is 
the  owner  of  a  note  sued  on,  which  appears 
to  have  been  made  to  the  plaintiff,  tenders 
no  material  issue,  and  is  irrelevant.  Wed- 
derspoon  v.  Rogers,  32  Cal.  569;  Poorman 
V.  Mills,  35  Cal.  118;  95  Am.  Dec.  90;  Frost 
V.  Harford,  40  Cal.  165;  Monroe  v.  Fohl,  72 
Cal.  568;  14  Pac.  514;  Bank  of  Shasta  v. 
Bovd,  99  Cal.  604;  34  Pac.  337.  The  de- 
nial of  allegations  of  indebtedness,  as  to 
time,  amount,  work,  etc.,  in  the  words  of 
the  complaint,  raises  an  immaterial  issue, 
instead  of  meeting  the  substantial  matter 
averred,  and  is  therefore  insufficient.  Caul- 
field  V.  Sanders,  17  Cal.  569.  Immaterial 
allegations  in  a  complaint  need  not  be  an- 
swered (Doyle  V.  Franklin,  48  Cal.  537); 
and  where  they  are  answered,  both  the 
complaint  and  the  answer,  so  far  as  tliey 
relate  thereto,  must  be  disregarded,  when 
the  sufficiency  of  the  pleading  and  the 
issues  is  brought  in  question  (Jones  v. 
Petaluma.  36  Cal,  230;  Canfield  v.  Tobias, 
21  Cal.  349);  nor  is  the  defendant  bound  to 
answer  matters  of  evidence  which  the 
plaintiflf  chooses  to  allege  in  his  complaint; 
if  the  plaintiff  requires  testimony  of  the 
defendant,  the  proper  mode  is  to  put  him 
on  the  stand  as  a  witness.  Racouillat  v. 
Rene,  32  Cal.  450, 

Statement  of  new  matter.  All  new  mat- 
ter of  defense  must  be  specially  pleaded 
in  the  answer.  Walton  v.  Minturn,  1  Cal. 
362;  Piercv  v.  Sabin,  10  Cal.  22;  70  Am. 
Dec.  692;  Moss  v.  Shear,  30  Cal.  467;  Coles 
V.  Soulsbv,  21  Cal.  47;  Glazer  v.  Clift,  10 
Cal.  303;'Michalitschke  v.  Wells  Fargo  & 
Co.,  118  Cal.  683;  50  Pac.  847;  Hawkins  v. 
Borland,  14  Cal.  413;  Hatton  v.  Gregg,  4 
Cal.  App.  542;  88  Pac.  594;  Robinson  v. 
American  Fish  etc.  Co.,  17  Cal.  App.  212, 
221;  119  Pac.  388.  A  denial,  whether  gen- 
eral or  specific,  puts  in  issue  only  the  al- 
legations of  the  complaint;  new  matter 
must  be  specially  pleaded,  and  w^hatever 
admits  that  a  cause  of  action,  as  stated 
in  the  complaint,  once  existed,  but  at  the 
same  time  avoids  it,  i,  e,,  shows  that  it  has 
ceased  to  exist,  is  new  matter;  it  is  that 
matter  which  the  defendant  must  affirma- 
tivclv  establish.  Coles  v.  Soulsbv,  21  Cal. 
47;  Moss  v.  Shear,  30  Cal.  467;  Wilson  v. 
California  Central  R.  R.  Co.,  94  Cal.  166; 
17  L.  R.  A.  685;  29  Pac.  861.  Whether 
the  matter  is  new  or  not,  must  be  deter- 
mined from  the  matter  itself,  and  not  from 
the  form  in  which  it  is  pleaded;  the  test  is, 
whether  it  operates  as  a  traverse,  or  by 
wav  of  confession  and  avoidance,  Frisch  v. 
Caler,  21  Cal.  71.  New  matter  is  that 
which  admits  that  the  cause  of  action 
stated  in  the  complaint  once  existed,  but 
at  the  same  time  avoids  it.  that  is,  shows 
that  it  has  ceased  to  exist;  such  as  release, 
and  accord  and  satisfaction;  it  is  a  matter 
arising  subsequently  to  the  origin  of  the 
cause  of  action,  and  which  the  defendant 
must  affirmatively  plead  and  establish;  but 
it  is  otherwise  as  to  matter  showing  that 


a  cause  of  action  did  not  exist  when  the 
action  was  begun,  and  going  to  prove  that 
a  cause  of  action  had  not  accrue  i  v/hen 
the  suit  was  brought,  which,  at  common 
law,  it  Tvas  permissible  to  show,  under  the 
general  issue,  and  new  matter  was  not,  ac- 
cording to  the  strict  original  principles  of 
the  common  law,  admissible  under  the  gen- 
eral issue,  any  more  than  under  the  system 
established  by  the  code.  Landis  v.  Mor- 
rissey,  69  Cal.  83;  10  Pac.  258.  New  matter 
is  that  which,  under  the  rules  of  evidence, 
the  defendant  must  affirmatively  establish; 
if  the  onus  of  proof  is  thrown  upon  the 
defendant,  the  matter  to  be  proved  by  him 
is  new  matter;  a  defense  that  concedes 
that  the  plaintiff  once  had  a  good  cause  of 
action,  but  insists  that  it  no  longer  exists, 
involves  new  matter,  Piercy  v.  Sabin.  10 
Cal,  22;  70  Am.  Dec.  692;  Coles  v.  Soulsby, 
21  Cal.  47.  New  matter  is  something  re- 
lied on  by  the  defendant,  which  is  not  put 
in  issue  by  the  plaintiff:  anything  show- 
ing that  the  plaintiff  has  not  the  right  of 
recovery  at  all,  or  to  the  extent  he  claims, 
on  the  case  as  he  makes  it,  is  not  new  mat- 
ter, and  may  be  given  in  evidence  upon  an 
issue  joined  by  an  allegation  in  the  com- 
plaint and  its  denial  in  the  answer.  Bridges 
V.  Paige,  13  Cal.  640;  Bank  of  Paso  Robles 
V.  Blackburn,  2  Cal.  App.  146;  83  Pac.  262. 
If  the  answer,  directly  or  by  necessary  im- 
plication, admits  the  truth  of  all  the  es- 
sential allegations  of  the  complaint  which 
show  a  cause  of  action,  but  sets  forth  facts 
from  which  it  results  that,  notwithstand- 
ing the  truth  of  the  allegations,  no  cause 
of  action  existed  in  the  plaintiff  at  the 
time  the  action  was  brought,  those  facts 
are  new  matter;  but  if  those  facts  only 
show  that  some  essential  allegation  of  the 
complaint  is  not  true,  then  such  facts  are 
not  new  matter,  but  only  a  traverse.  God- 
dard  v.  Fulton,  21  Cal.  430;  Frisch  v.  Caler, 
21  Cal.  71.  Any  matter  which  does  not 
avoid  or  discharge  a  cause  of  action  there- 
tofore existing,  but  the  purpose  of  which 
is  to  show  that  the  alleged  cause  of  action 
never  did  exist,  and  that  material  allega- 
tions of  the  complaint  are  not  true,  is  not 
new  matter  required  to  be  specially  pleaded. 
Churchill  v.  Baumann,  95  Cal.  541;  30  Pac. 
770.  The  defense  that  the  defendant  ac- 
quired title  to  the  property  affected  in  an 
ejectment  suit,  subsequentl.v  to  the  com- 
mencement of  the  action  and  to  his  answer 
therein,  is  new  matter,  and  must  be  set  up 
by  a  supplemental  answer  in  the  nature 
of  a  plea  puis  darrein  continuance.  Moss 
V,  Shear,  30  Cal.  467.  Evidence  that  an 
injury  charged  to  the  nejligence  of  the  de- 
fendant was  caused  b.v  the  negligence  of  a 
third  part.v,  is  matter  of  denial,  simply, 
and  not  new  matter  of  defense.  Jackson 
V.  Feather  River  etc.  Water  Co.,  14  Cal. 
18.  In  an  action  for  goods  sold  and  deliv- 
ered, evidence  that  the  goods  were  sold  on 
a  credit  which  had  not  expired  when  the 
action  was  commenced  is  not  new  matter. 
Landis  v.   Morrissey,   69   Cal.   83;    10   Pac. 


363 


NEW     MATTER — VERIFIED     COMPLAINT — POSITIVE    DENIAL. 


§437 


258.  An  averment  that  a  third  ]iarty,  not 
sued,  is  the  owner  of  the  property  aliccted 
by  the  complaint,  is  not  new  matter,  but 
merely  a  traverse  of  the  allej];ation  of  the 
complaint  as  to  ownership.  Eobinson  v. 
Merrill,  87  Cal.  11;  25  Pac.  162.  The  de- 
fendant may,  in  ejectment,  under  the 
general  denial,  give  in  evidence  title  in 
himself:  the  allegation  of  such  title  in  the 
answer  does  not  constitute  new  matter,  nor 
present  any  new  issue.  Marsliall  v.  Shaf- 
fer, 32  Cal.  176.  A  defense  of  unslsillful 
work  is  new  matter,  and  must  be  set  up  in 
an  action  on  the  contract  for  pavment. 
Kendall  v.  Vallejo,  1  Cal.  371.  The  de- 
fense of  payment  is  not  ordinarily  new 
matter,  an<l  need  not  be  set  up  as  a  special 
defense  (Brown  v.  Orr,  29  Cal.  120;  Da- 
vanay  v.  Eggenhoff,  43  Cal.  395;  Fairchild 
V.  Amsbaugh,  22  Cal.  572;  Wetmorc  v.  San 
Francisco,  44  Cal.  294;  Mendocino  Countv 
V.  Johnson,  125  Cal.  337;  58  Pac.  5);  but 
may  be  put  in  issue  by  a  general  denial. 
Davanay  v.  Eggenhoff"  43  Cal.  395.  The 
plea  of  former  recovery  is  new  matter, 
and  must  be  set  up  in  the  answer,  such 
defenses  admitting  the  contract  as  alleged, 
but  avoiding  it  by  matter  ex  post  facto 
(Pierey  v.  Sabin,  10  Cal.  22;  70  Am.  Dec. 
692);  and  in  an  action  on  a  promissory 
note,  pleas  of  want  of  consideration  and 
payment  are  afOrmative  defenses,  and  must 
be  pleaded.  Pastene  v.  Pardini,  135  Cal. 
431;  67  Pac.  681.  A  levy  of  execution  on 
personal  property,  sufficient  to  satisfy  the 
judgment,  is  not  a  payment:  that  fact 
must  be  alleged  as  new  matter.  Mulford 
v.  Estudillo,  ^23  Cal.  94.  The  defense  of 
negligence  of  a  fellow-servant  cannot  be 
invoked,  unless  it  is  pleaded.  Eeeve  v, 
Colusa  Gas  etc.  Co.,  152  Cal.  99;  92  Pac. 
89.  If  the  plaintiff  omits  to  set  forth  the 
entire  transaction  out  of  which  his  claim 
arose,  the  defendant  may  supply  this  omis- 
sion by  setting  forth  in  his  answer  the 
omitted  facts;  the  plaintiff  cannot  select 
an  isolated  act  or  fact,  which  is  only  one 
of  a  series  of  acts  or  steps  in  the  entire 
transaction,  and  insist  upon  a  judgment  ou 
this  fact  alone,  if  the  fact  is  so  connected 
with  others  that  it  forms  only  a  portion 
of  the  transaction.  Storv  &  Isham  Com- 
mercial Co.  v.  Story,  lOO' Cal.  30;  34  Pac. 
671.  If  the  answer  to  a  complaint  in  eject- 
ment fails  to  state  a  specific  and  definite 
time  of  the  making  of  a  verbal  lease,  and 
the  plaintiff  fails  to  demur  specially  to  the 
answer,  the  defendant  is  entitled  to  render 
such  time  specific  and  definite  by  proof. 
Armstrong  v.  Garate,  15  Cal.  App.  57;  113 
Pac.  698.  In  an  action  by  a  vendor  to 
quiet  title,  where  the  contract  of  sale  pro- 
vides for  a  rescission  of  the  contract  by 
the  vendor  upon  default  of  the  purchaser 
in  payment  of  purchase-money,  the  facts 
entitling  the  defendant  to  a  return  of  pur- 
chase-money paid  must  be  specially  pleaded. 
Stratton  v.  California  Land  etc.  Co.,  86 
Cal.   353;   24  Pac.   1065.     In   an   action   for 


the  recovery  of  real  projjerty,  a  title  by 
prescription,  if  not  pleaded,  is  not  in  issue. 
Allen  v.  McKay  &  Co.,  6  Cal.  Unrep.  993; 
70  Pac.  8.  Where  both  parties  treat  an 
afiirmative  defense  as  denied,  the  want  of 
a  formal  answer  thereto  will  be  deemed 
waived.  Kern  Vallev  Bank  v.  Kochn,  19 
Cal.    App.   247;    125    Pac.   358. 

Denial,  where  the  complaint  Is  verified. 
A  general  denial  of  all  the  allegations  of 
a  verified  complaint,  followed  by  s-^paratc 
general  denials  of  each  si)ccific  allegation, 
is  not  sufficient  to  raise  an  issue  upon  the 
facts  stated  in  the  complaint.  Hensley  v. 
Tartar,  14  Cal.  508.  Where  the  answer  to 
a  verified  complaint  does  not  deny  the 
facts  therein  alleged,  the}'  are  deemed  to 
be  admitted.  Blanck  v.  Commonwealth  etc. 
Corporation,  19  Cal.  App.  720;  127  Pac. 
805;  Rose  v.  Lelande,  20  Cal.  App.  502; 
129  Pac.  599;  Alden  v.  Mayfield,  ]64  Cal. 
6;  127  Pac.  45.  The  rules  of  pleading,  in 
answer  to  a  verified  complaint,  as  to  facts 
presumptively  known,  apply  as  well  to  cor- 
porations defendant  as  to  individuals. 
Zany  v.  Eawhide  Gold  Mining  Co.,  15  Cal. 
App.  373;  114  Pac.  1026. 

When  denial  must  be  positive.  The 
forms  of  denial  prescribed  by  statute — 
positively,  and  upou  information  and  be- 
lief— cannot  be  indiscriminately  used;  if  the 
facts  alleged  in  the  com])]aint  are  jiresump- 
tively  within  the  knowledge  of  the  defend- 
ant, he  must  answer  positively:  a  denial 
upon  information  and  belief  will  be  treated 
as  an  evasion.  Curtis  v.  Richards,  9  Cal. 
33.  An  averment  of  a  fact  peculiarly 
within  the  knowledge  of  the  defendant, 
and  which  is  a  part  of  his  official  duty  to 
know,  must  be  made  positively,  and  not 
upon  information  and  belief.  McCon- 
oughey  v.  Jackson,  101  Cal.  265;  40  Am. 
St.  Rep.  53;  35  Pac.  863.  Where  the  facts 
stated  in  a  verified  complaint  are  presump- 
tively known  to  the  defendant,  or  where 
he  has  the  means  of  ascertaining,  as  by 
consulting  public  records,  whether  or  not 
such  facts  are  true,  a  positive  answer  is 
required  to  raise  an  issue:  an  evasive  an- 
swer, on  information  and  belief,  raises  no 
issue,  but  admits  the  verified  allegations 
so  answered.  Mulcahv  v.  Bucklev,  100  Cal. 
484;  35  Pac.  144;  Mullally  v.  Townsend, 
119  Cal.  47;  50  Pac.  1066;  Raphael  Weill 
&  Co.  V.  Crittenden,  139  Cal.  488;  73  Pac. 
238;  Jensen  v.  Dorr,  159  Cal.  742;  116  Pac. 
553;  Bartlett  Estate  Co.  v.  Eraser.  11  Cal. 
App.  373;  105  Pac.  130;  Reclamation  Dis- 
trict V.  Snowball,  160  Cal.  695;  117  Pac. 
905;  118  Pac.  514,  515;  Le  Breton  v.  Stan- 
ley Contracting  Co..  15  Cal.  App.  429;  114 
Pac.  1028,  1030;  Zanv  v.  Rawhide  Gold 
Mining  Co.,  15  Cal.  App.  373;  114  Pac. 
1026.  A  defendant  is  not  at  liberty  to  an- 
swer any  allegation  for  want  of  informa- 
tion and  belief  upon  the  subject,  sufficient 
to  enable  him  to  answer  it,  when  he  may 
be  presumed  to  know,  or  when  he  is  aware 
before  answering,   that   he   has   the   means 


§437 


ANSWER, 


364 


of  ascertiining  whether  or  not  such  al- 
legation is  true;  and  such  an  answer  is 
improper,  where  it  appears  that  the  de- 
fendant knew,  before  answering,  that  he 
could  certainly  ascertain  whether  or  not 
the  plaintiti'  had  recorded  his  claim  of  lien, 
as  alleged  in  the  complaint,  by  examining 
a  public  record  in  the  county  in  which  the 
land '  upon  which  the  lien  is  claimed  is 
situated  (Mulcahy  v.  Buckley,  lUO  Cal. 
484;  35  Pac.  144);  but  the  sufficiency  of  a 
recorded  document  to  create  a  mechanic's 
lien  may  be  denied  upon  information  and 
belief.  Hagman  v.  Williams,  88  Cal.  14t); 
25  Pac.  1111.  It  is  difficult  to  define  with 
more  exact  precision  when  an  answer 
should  be  positive  in  its  denials,  than  to 
say  that  when  the  material  facts  alleged 
in  the  complaint  are  presumptively  within 
the  knowledge  of  the  defendant,  he  must 
traverse  them,  if  he  undertakes  to  do  so 
at  all,  directly  and  positively,  or  he  must 
show  how  it  is  that  he  is  without  knowl- 
edge of  such  material  facts;  he  must, 
by  a  proper  statement  of  facts  or  cir- 
cumstances, overcome  the  presumption  of 
knowledge  on  his  part,  which  being  done, 
his  answer  on  information  and  belief  will 
be  deemed  all  that  the  law  requires.  Vas- 
sault  v.  Austin,  32  Cal.  597;  Brown  v. 
Scott,  25  Cal.  189;  Loveland  v.  Garner,  74 
Cal.  298;  15  Pac.  844;  Gribble  v.  Columbus 
Brewing  Co.,  100  Cal.  67;  34  Pac.  527. 
Eules  of  pleading  are  intended  to  prevent 
evasion,  and  require  a  denial  of  every 
averment  in  a  sworn  complaint,  in  sub- 
stance and  in  spirit,  and  not  merely  a 
denial  of  its  literal  truth.  Doll  v.  Good,  38 
Cal.  287;  Zany  v.  Rawhide  Gold  Min.  Co., 
15  Cal.  App.  373;  114  Pac.  1026;  Kinney 
v.  Maryland  Casualty  Co.,  15  Cal.  App. 
571;  115  Pac.  456. 

Denial  on  information  and  belief.  The 
only  object  in  requiring  the  defendant  to 
state  his  belief  is  to  dispense  with  the 
necessity  of  proof  on  the  part  of  the  plain- 
tiff; and  if  he  admits  that  he  believes  the 
fact  to  be  true,  it  stands  as  confessed;  the 
clear  result  of  the  requirement  is,  that  the 
defendant  must  state  his  actual  belief, 
whether  founded  upon  mere  hearsay  evi- 
dence, general  report,  or  other  informa- 
tion; and  when  he  does  so  state  it,  he  is 
precluded  from  controverting  the  alleged 
fact  which  he  believes,  but  does  not  know, 
to  exist;  and  the  practical  result  is,  that 
the  plaintiff  may  establish  the  existence  of 
a  fact,  not  known  to  the  defendant,  by  the 
defendant's  more  belief,  based  upon  in- 
conifietent  evidence;  the  statute  changes 
the  law  of  evidence  in  favor  of  the  plain- 
tiff, and  against  the  defendant;  it  permits 
the  [)laintiff  to  verify  his  complaint,  and 
then  the  defendant  is  compelled  to  state 
his  belief  as  to  facts  he  does  not  know  to 
exist,  and  when  those  facts,  unknown  to 
the  defendant,  are  alleged  and  sworn  to  by 
the  plaintiff,  upon  his  own  knowledge,  the 
defendant   is   compelled   either   to   believe 


them  to  be  true  or  to  believe  the  plaiiitiflf 
guilty  of  perjury.  The  object  of  the  stat- 
ute is  to  sift  the  conscience  of  the  defend- 
ant, and  obtain  from  him  his  belief; 
he  must  answer  according  to  his  belief, 
whether  that  belief  is  founded  upon  suffi- 
cient or  insufficient  inform.ation;  the  word 
"belief,"  as  used  in  the  statute,  is  to  be 
taken  in  its  ordinary  sense,  and  means  the 
actual  conclusion  of  the  defendant,  drawn 
from  information ;  there  is  a  clear  distinc- 
tion between  positive  knowledge  and  mere 
belief,  and  they  cannot  both  exist  together. 
Humphreys  v.  McCall,  9  Cal.  59;  70  Am. 
Dec.  621.  A  denial  "upon  his  information 
and  belief,"  instead  of  in  the  statutory  lan- 
guage, "according  to  his  information  and 
belief,"  is  sufficient  (Kirstein  v.  Madden, 
38  Cal.  158),  being  substantially  the  same 
as  a  denial  "according  to  his  information 
and  belief."  Roussin  v.  Stewart,  33  Cal. 
208.  A  denial  upon  information  and  belief 
is  not  sufficient  to  justify  the  dissolution 
of  a  temporary  restraining  order  or  injunc- 
tion on  the  ground  that  the  equities  of  the 
bill  are  fully  denied  by  the  answer.  Porter 
V.  Jennings,  89  Cal.  440;  26  Pac.  965;  Din- 
gley  V.  Buckner,  11  Cal.  App.  181;  104  Pac. 
478;  Chace  v.  .Jennings,  3  Cal.  Unrep.  474; 
28  Pac.  681.  As  to  matters  not  presumably 
within  the  knowledge  of  a  defendant,  a 
denial  upon  information  and  belief  is  per- 
missible, and  a  specific  denial  of  each  of 
the  allegations  as  to  such  matters  is  not  es- 
sential, although  the  complaint  is  verified. 
Jensen  v.  Dorr,  159  Cal.  742;  116  Pac.  553. 
The  defendant  may  not  answer  an  allega- 
tion, the  truth  of  which  he  may  ascertain 
from  the  public  records,  by  an  averment 
that  he  has  no  information  or  belief  on  the 
subject.  Mulcahy  v.  Buckley,  100  Cal.  484; 
35  Pac.  144.  An  administrator  may  deny, 
upon  information  and  belief,  an  allegation 
that  his  intestate  executed  certain  deeds. 
Thompson  v.  Lynch,  29  Cal.  189.  In  an  ac- 
tion to  foreclose  a  mortgage,  allegations  in 
the  answer  of  a  wife,  denying,  upon  in- 
formation and  belief,  that  the  mortgagee 
delivered  the  mortgage  to  her,  or  to  her 
and  her  husband,  at  her  request,  do  not 
amount  to  a  denial  that  the  document  was 
delivered  to  her. husband  acting  for  her,  or 
negative  in  any  way  the  presumption  of 
her  full  knowledge  of  the  transaction.  Phil- 
lips V.  Phillips,  163  Cal.  530;  127  Pac.  346. 
A  denial  in  the  answer,  for  want  of  infor- 
mation and  belief,  framed  in  the  conjunc- 
tive form,  that  plaintiff  is  now,  and  at  all 
times  mentioned  in  the  complaint  has  been, 
a  corporation,  etc.,  is  insufficient  to  raise 
an  issue.  Bartlett  Estate  Co.  v.  Fraser,  11 
Cal.  App.  373;  105  Pac.  130.  If  a  defend- 
ant, presumeil  to  know  the  facts,  has  a 
lack  of  knowledge  in  fact,  an  explanation 
is  essential,  where  he  makes  a  denial  upon 
information  and  belief,  as  to  how  it  hap- 
pens that  he  is  without  such  knowledge. 
Zany  v.  Rawhide  Gold  Mining  Co.,  15  Cal. 
App.  373;  114  Pac.  1026. 


365 


ANSWER  TO  CONTAIN  WHAT — GENERAL  RULES — DENIAL. 


§437 


Defenses  that  are  admissiljle  without  being  spe- 
cially pleaded.    Sec  iioU-  ti'.»  Am.  l)i-<-.  To,"). 

^^  heu  denials  on  information  and  belief  are  per- 
missible. See  notes  70  Am.  Dec.  025;  133  Am. 
St.   Kep.   106. 

Sufficiency  of  general  denial  coupled  with  ad- 
missions.   See  note  13  Ann.  t';is.  8.S4. 

Action  of  replevin  as  subject  to  counterclaim. 
See  notes  Ann.  C'as.  19i;iA,  105;  '^A  L.  K.  A. 
(X.  S.)    74  8. 

Necessity  that  defendant  designate  counter- 
claim as  such  in  pleading.  See  note  Ann.  Cas. 
lyiJA,    1079. 

EHect  of  denial  on  information  and  belief  of 
matter  necessarily  within  knowledge  of  defend- 
ant.   See  notes  Ann.  Cas.  1912C,  283;  30  L.  K.  A. 

(\.  a.)  771. 

CODE  COMMISSIONERS'  NOTE.  1.  Answer 
to  contain  what.  General  rules.  The  answer. 
Tliis   is   to    contain: 

1.  A  general  or  specific  denial  of  each  mate- 
rial allegation  of  the  complaint  controverted  by 
llie  dt'leiidant,  or  oi  any  knowledge  or  informa- 
tion thereof  sufficient  to  form  a  belief. 

A  general  denial  asserts  in  a  single  sentence 
that  every  allegation  of  the  complaint  is  untrtie. 
When  a  complaint  is  false  in  every  one  of  its 
allegations,  the  defendant  may,  if  he  chooses, 
group  them  together,  instead  of  denying  each  al- 
legation in  its  turn,  and  may  thus  make  the 
denial  general,  so  as  to  cover  all  the  allegations 
at  once.  But  this  is  far  from  being  equivalent 
to  the  general  issue  in  common-law  pleadings; 
for  that,  besides  denying  all  the  plaintiff's  alle- 
gations, denied  also  that  he  had  any  cause  of 
action,  even  if  his  allegations  were  true,  and  thus 
enabled  the  defendant  not  onl^  to  adduce  evi- 
dence in  disproof  of  the  plaintiff's  case,  but  gen- 
erally in  discharge  of  it,  if  not  disproved.  A 
specific  denial  siiigles  out  specific  allegations, 
and  denies  them.  All  allegations  not  denied  are, 
for  the  purposes  of  the  action,  taken  as  true.  An 
express  admission  is,  therefore,  improper.  lu 
equity  pleadings,  under  the  former  system,  e.x- 
press  admissions  were  proper,  and  often  neces- 
sary; but  in  this  respect,  as  in  others,  there  is 
a  wide  difference  between  that  system  and  the 
one  established  by  the  code.  A  denial  must  be 
of  the  substance  of  the  allegation,  not  of  its  form. 
When,  therefore,  as  is  sometimes  the  case,  a  de- 
fendant denies  that  an  allegation  is  true  in  man- 
ner and  form  as  stated,  or  denies  that  he  did 
what  is  charged  against  him  at  the  time  and 
place  stated,  he  puts  himself  upon  the  form  of 
the  statement,  rather  than  upon  its  substance, 
and  fails  to  make  that  denial  which  the  law  re- 
quires. His  answer  is,  then,  what  is  sometimes 
called  a  negative  pregnant;  that  is,  a  denial 
whose  truth  was  consistent  with  the  truth  of 
every  material  part  of  the  allegation  denied.  A 
denial  need  not  be  in  the  very  language  of  the 
allegation  denied,  though  that  is  the  best  mode, 
when  it  can  be  done  with  truth.  Sometimes  it 
is  necessary  to  make  wha.t  may  be  called  a  par- 
tial denial;  as,  for  example,  when  the  complaint 
professes  to  give  the  substance  of  an  agreement, 
which  the  defendant  does  not  admit  to  be  cor- 
rectly given,  he  may  answer  that  the  only  agree- 
ment made  on  the  subject  was  as  follows,  and 
then   it   set  forth, 

2.  A  statement  of  new  matter  in  avoidance  or 
constituting  a  defense  or  counterclaim,  in  ordin- 
ary and  concise  language,  without  repetition. 

AH  the  defenses  must  be  kept  distinct.  Each 
of  them  should  begin  with  some  expression  to 
indicate  that  it  is  a  new  defense,  thus:  And  for 
a  further  defense,  the  defendant  answers  or  al- 
leges, etc.  (See  Gates  v.  Kieff,  7  Cal.  125.) 
Every  defense,  legal  and  equitable,  may  be  inter- 
posed. 

A  counterclaim  is  a  rrossdemand — a  claim  of 
the  plaintiff  against  the  defendant.  It  is  more 
exten.sive  than  set-off,  the  latter  being  confined 
to  money  claims,  and  those  of  a  partifular  de- 
scription, while  the  former  extends  not  only  to 
money  claims,  but  to  recoupment  and  to  equi- 
table defenses,  when  affirmative  relief  is  sought 
on  the  part  of  the  defendant.  The  main  design 
is,  as  far  as  possible,  to  dispose  of  the  whole 
controversy  between  the  parties  in  one  action, 
avoiding  thus  the  multiplication  of  suits,  and 
bringing    the    whole    of    a    transaction,    or    a    con- 


nected series  of  transactions,  into  one  view,  to 
be  judged  as  a  whule.  The  counterclaim  must 
show  a  cause  of  action  in  favor  of  a  defendant 
and  against  a  plaintiff,  between  whom  a  several 
judgment  might  be  had  in  the  action.  If,  for 
example,  the  claim  and  defense  be,  as  Ihey  gen- 
erally are,  such  that  tlie  plaintiff  might  recover 
against  one  of  several  defendants,  thai  defendant 
may,  on  his  part,  assert  his  counterclaim  against 
the  plaintiff.  The  cause  of  action  set  forth  in 
the  counterclaim  must  arise  either  out  of  the 
contract  or  transaction  set  forth  in  the  complaint 
as  the  foundation  of  the  plaintiff's  claim,  as  in 
case  of  independent  covenants  in  a  deed;  or  it 
must  be  connected  with  the  subject  of  the  ac- 
tion, as  in  case  of  an  assault  upon  the  defend- 
ant by  the  plaintiff  which  led  to  the  violence 
charged  in  the  complaint;  or  if  the  action  itself 
be  on  contract,  then  any  other  cause  of  action, 
arising  also  on  contract  and  existing  at  the  com- 
mencement of  the  action,  may  be  the  ground  of 
a  cotmterclaim. 

In  the  answer,  as  well  as  in  the  complaint,  it 
is  desirable  to  break  the  matter  into  distinct 
paragraphs,   and  to  numb(!r  them. 

When,   therefore,   a   complaint  is  brought  to  an 
attorney,    and    he    is    to    prepare    an    answer,    his 
first    qtiestion    of    his    client    should    be:    "Is    any 
part    of    this    complaint    false  T'    and    if    it    be    so, 
that  part  must  be  specified  and   denied;   he  should 
next  inquire  if  there  be  any  defense  whicli  would 
discharge    the    defendant    if    the    complaint    were 
proved    to    be    true;    and,    lastly,    he    should   learn 
if    there    be   a    counterclaim    which    will    avail    his 
client.      The    different   defenses   naturally   preseiit 
themselves  in   the  following  order: 
Denial. 
General. 
Specific. 
Total. 
Partial. 
Defenses  in  discharge. 
Counterclaim. 
Set-off. 
Recoupment. 

Other    claim    of    defendant    on    same    contract 
or    transaction. 

Other    claim     of    defendant     connected    with 
the   subject   of  action. 

Money    claim    on    separate    contract    against 
money   claim   on    contract. 

P'quitable   defense,    with   a   claim   of   affirma- 
tive   relief. 

The  true  design  of  pleading  is  sometimes  mis- 
apprehended. It  is  not  to  exercise  the  art  of 
lawyers,  but  to  obtain  justice  for  clients;  and  in 
furtherance  of  that  design,  it  seeks  to  ascertain 
and  record  the  facts  of  the  controversy.  To  as- 
certain the  facts,  it  is  necessary  that  each  party 
make  his  own  statement  of  them,  and  when  the 
points  of  disagreement  are  ascertained,  evidence 
is  called  in.  There  are  persons  who  prefer  oral 
pleading  at  the  trial.  Others  prefer  oral  plead- 
ing in  the  presence  of  a  judge,  preparatory  to 
the  trial;  and  of  that  opinion  are  some  distin- 
guished lawyers  in  EngHnd.  The  arguments  for 
it  are,  that  it  is  simpler,  quicker,  and  more  cer- 
tain. The  majority,  however,  are  in  favor  of 
written  pleadings  exchanged  between  the  parties 
before  the  trial.  They  reason  thus  :  If  there  were 
but  two  parties,  and  those  near  the  judge,  oral 
pleading  might  be  preferable;  but  when  the  par- 
ties are  numerous,  or  distant,  the  inconvenience 
of  bringing  them  all  before  the  judge  at  the  same 
time,  to  make  their  respective  statements  and 
counter-statements,  would  be  hardly  tolerable. 
Therefore,  they  would  neither  call  in  the  jury 
nor  bring  the  parties  before  the  judge,  till  they 
had  interchanged  with  each  other  written  state- 
ments of  the  facts,  and  ascertained  the  points 
of  difference.  In  what  manner  to  order  these 
written  statements,  so  that  they  shall  most  surely 
and  most  easily  evolve  the  points  of  difference", 
is  the  problem  of  pleading.  How  this  problem 
is  solved  with  us,  is  submitted  to  the  judgment 
of   those   who   reason    for   themselves. 

The  common  law  sought,  by  its  peculiar  scheme 
of  written  altercations,  to  bring  out  the  precise 
points  in  dispute,  and  in  doing  so,  instituted  an 
intricate  and  toilsome  process,  which  wearied 
the  attorney  and  the  suitor,  and  failed  to  attain 
the  end    ^i     last.      And  even  if   it  had   been  true, 


§437 


ANSWER. 


366 


as  its  friends  claimed  for  it,  that  this  scheme 
was  entirely  successful  in  the  production  of  sin- 
gle and  close  issues,  ihat  would  not  have  decided 
the  question  of  retaining  it.  tor  it  could  not 
have  been  maintained  in  any  respect,  without  up- 
holding the  distinction  between  legal  and  equi- 
table proceedings,  nor  could  it  have  been  main- 
tained in  its  integrity  without  retaining  the 
forms  of  action.  They  greatly  err,  who  conceive 
that  they  can  abolish  the  forms  of  action,  and 
yet  preserve,  as  a  whole,  that  mass  of  regula- 
tions, subtilities,  and  conceits,  which  formed 
what  was  styled  the  system  of  pleading  at  com- 
mon law.  Some  of  the  rules  might  perhaps  have 
been  preserved,  when  the  forms  of  pleading  were 
abolished;  but  greater  inconvenience  and  confus- 
ion would  have  resulted  from  an  attempt  to 
modify  the  system  for  the  purpose  of  adapting 
it  to  a  single  form  of  action,  than  from  its  en- 
tire reconstruction.  Whatever  was  useful  in  the 
old  system  of  common  law  or  equity  was  of 
course  ready  for  use  in  the  new;  but  the  old  had 
to  be  taken  down,  and  a  new  one  reconstructed, 
if  any  permanent  good  was  to  be  accomplished. 
ITiese"  may  be  regarded  as  legal  axioms:  first, 
that  no  scheme  of  procedure  can  last  which  does 
not  provide  for -the  adjudication  of  the  whole  of 
a  controversy,  be  it  partly  legal  and  partly  equi- 
table, in  one  action:  secondly,  that  neither  the 
common-law  pleading  nor  the  equity  pleadings 
subserved  that  purpose  and  attained  tliat  end; 
and,  therefore,  thirdly,  that  a  new  system  was 
indispensable,  selecting  what  was  good  in  each, 
and  adding  what  seemed  to  be  necessary  to  make 
a  consistent  whole.  It  certainly  would  be  agree- 
able to  know  that  in  obtaining  the  beaefils  of  a 
new  and  uniform  system,  we  did  not  lose  a  sin- 
gle advantage  of  either  of  the  old.  Let  us  see 
whether  such  be  not  the  fact.  In  the  first  place, 
there  were,  under  the  old  system,  in  the  greater 
number  of  the  cases,  no  real  issues  whatever; 
the  issues  were  nominal  in  all  cases  of  general 
pleading,  as  has  been  already  explained.  So  far. 
certainly,  the  advantage  is  greatly  on  the  side 
of  the  code.  In  the  ne.xt  place,  the  advanlage  in 
respect  to  that  smaller  number  of  cases  where 
the  pleading  was  special,  is  also  on  the  side  of 
the  code.  NVhat  produces  an  issue  ?  An  allega- 
tion denied.  Under  the  code  the  defendant  must 
deny  or  discharge  himself;  and  if  he  discharge 
himself,  his  allegations  in  discharge  are  denied 
by  force  of  the  law.  Here  there  is  no  general 
pleading  till  you  get  beyond  the  answer,  and 
then  for  the  first  time  you  meet  the  general  is- 
sue— a  statutory  general  issue.  The  defenses  by 
discharge  are  few  in  comparison  with  defenses 
by  denial,  not  more  probably  than  as  one  to  ten. 
And  if  the  affirmations  and  denials  are  stated 
with  ordinary  skill,  they  constitute  issues  as  sim- 
ple and  precise  as  it  is  possible  to  put  in  words. 
It  is  only  when  the  pleader  is  ignorant  of  his 
art  that  they  are  otherv/ise.  If  a  pleading  con- 
tain involved  statements,  or  immaterial  aver- 
ments, lay  it  I'.ot  to  the  account  of  the  law  which 
is  violated,  but  to  him  who  disregards  it.  The 
remedy  is  with  the  courts.  If  he  who  assumes 
to  act  as  attorney  be  so  faulty  in  his  mind  or 
education  as  to  be  unable  to  make  a  plain  and 
logical  statement,  or  to  contradict  one  with  pre- 
cision, the  court  can  rectify  the  pleading,  and 
punish  him.  They  are  also  vested  with  the  power 
to  make  general  ryles  for  the  purpose  of  carry- 
ing the  code  into  full  effect.  If  they  find  plead- 
ers inattentive,  let  them  establish  as  a  positive 
rule  what  is  now  the  dictate  of  convenience,  and 
require  the  allegations  to  be  separated,  to  be 
confined  each  to  a  single  point,  and  to  be  num- 
bered. If  issues  as  single  and  as  narrow  as  it 
is  possible  to  produce  are  not  thus  seci:reil.  it  is 
not  possible  to  secure  them  by  any  schemes  of 
legislation  or  any  rules  of  court. 

2.  Difference  hetween  effect  of  general  and  spe- 
cial denial.  A  denial,  whether  general  or  special, 
only  puts  in  issue  the  allegations  of  the  com- 
plaint. The  difference  between  a  general  and 
special  denial  in  this  respect  is  only  in  the  ex- 
tent to  which  the  allegations  are  traversed.  Coles 
V.  Soulsby.  21   Cal.  47. 

3.  General  denial.  In  an  action  for  malicious 
jjrosecution,  the  defendants  filed  a  genera!  denial, 
and  also  averred  that  they  had  nothing  to  do 
with  the  prosecution,  except  as  witnesses;  plain- 


tiff filed  a  replication  taking  issue  on  this  aver- 
ment. If  plaintiff  regarded  this  as  a  good  defense 
and  joined  issue  on  it,  defendants  cannot  com- 
plain ;  though,  probably,  the  matter  was  put  ia 
issue  by  the  general  denial,  and  the  replication 
was  unnecessary.  Dreux  v.  Domec,  18  Cal.  83 ; 
White  V.  Moses,  11  Cal.  69;  Brooks  v.  Chilton, 
6  Cal.  640. 

4.  Qualified  general  denial.  A  general  denial 
of  the  averments  of  a  verified  complaint,  with 
the  qualifying  words,  "except  as  hereinafter  ad- 
mitted," does  not  put  in  issue  any  of  its  allega- 
tions.   Levinson  v.   Schwartz,  22  Cal.  229. 

5.  Specific  denial.  A  specific  denial  to  each 
allegation  of  a  complaint  is  a  separate  denial  of 
the  particular  allegation  controverted.  The  plain- 
tiff, if  he  verified  his  complaint,  could  compel 
the  defendant  to  deny  specifically  each  separate 
allegation.  San  Francisco  Gas  Co.  v.  San  Fran- 
cisco, 9  Cal.  453.  The  rules  of  pleading  are 
meant  to  prevent  evasion,  and  require  a  denial  of 
every  specific  averment  in  a  verified  complaint, 
in  substance  and  in  spirit,  and  not  merely  a  de- 
nial of  its  literal  truth;  and  whenever  the  de- 
fendant fails  to  make  such  denial,  he  admits  the 
averment.  Blankman  v.  Yallejo,  15  Cal.  638;  see 
also   Fish  v.  Redington,   31   Cal.   lt;5. 

6.  In  ejectment,"  all  matter  of  defense  must  be 
stated  in  answer.  In  ejectment,  the  defendant 
is  bound  to  bring  forward  all  matter  of  a  strictly 
defensive  character,  or  be  precluded  from  again 
litigating  the  same;  but  he  is  not  bound  to  set 
up  or  litigate  new  matter  constituting  a  cause 
of  action  in  his  favor.  Ayres  v.  Bensley,  32  Cal. 
620. 

7.  Denial  on  information  and  belief.  If,  from 
the  nature  of  the  fact  alleged,  the  knowledge  is 
presumptively  on  information,  defendant  is  not 
bound  to  deny  positively,  but  only  "according 
to  his  information  and  belief" ;  in  such  case  he 
must  answer  according  to  both  his  information 
and  belief.  The  word  "belief"  means  the  actual 
conclusion  of  the  defendant  drawn  from  infor- 
mation. Humphreys  v.  McCall,  9  Cal.  59;  70  Am. 
Dec.  621.  A  denial  is  not  sufficient  which  stales 
that  the  defendant,  a  municipal  corporation,  his 
no  knowledge  or  information  "in  respect  to  the 
obligations  of  a  count  in  a  verified  complaint, 
and  therefore  denies  the  same."  San  Francisco 
Gas  Co.  V.  San  Francisco,  9  Cal.  453 ;  see  also 
Brown  v.  Scott,  25  Cal.  189,  and  cases  there 
cited;  also  Fish  v.  Redington,  31  Cal.  185. 

8.  Denial  on  information  and  belief  by  admin- 
istrator. An'  allegation,  by  an  administrator,  as 
defendant,  which  "avers,  on  information  and  be- 
lief, that  no  such  deed  or  deeds  were  ever  exe- 
cuted," is  a  sufficient  denial  of  an  allegation  in 
the  complaint  that  decedent  executed  and  deliv- 
ered the  particular  deeds  referred  to.  Thompson 
V.  Lynch,  29  Cal.  189. 

9.  Denial  on  information  and  belief,  when  in- 
sufficient.  If  the  averments  of  a  verified  com- 
plaint are  presumptively  within  the  knowledge 
of  the  defendant,  a  denial  of  the  same  in  the  an- 
swer, according  to  his  information  and  belief,  is 
evasive  of  the  issue  tendered.  It  should  state 
how  it  happened  that  defendant  is  not  informed 
of  the  fact  alleged.  Brown  v.  Scott,  25  Cal.  194. 
And  as  to  what  may  and  what  may  not  be  denied 
upon  information  and  belief,  see  Humphreys  v. 
McCall,  9  Cal.  59;  70  Am.  Dec.  621;  Kuhland  v. 
Sedgwick,  17  Cal.  123;  Vassault  v.  Austin,"  32 
Cal.  597;  Ord  v.  Steamer  Uncle  Sam,  13  Cal. 
369;  San  Francisco  Gas  Co.  v.  San  f^rancisco,  9 
Cal.  453;  Brown  v.  Scott,  25  Cal.  189;  Fish  v. 
Redington,  31  Cal.  185.  An  averment  of  the 
death  of  plaintiff's  ancestor,  in  a  verified  com- 
plaint, will  not  be  controverted  by  answer,  "that 
defendant  has  not  sufficient  knowledge  to  form 
a  belief,"  and  therefore  neither  admits  nor  de- 
nies. Anderson  v.  Parker,  6  Cal.  197.  The 
allegation  of  a  verified  complaint  cannot  be  con- 
troverted by  a  denial  of  sufficient  knowledge  or 
information  upon  the  subject  to  form  a  belief. 
Curtis  V.  Richards,  9  Cal.  33;  San  Francisco 
Gas  Co.  V.  San  Francisco,  9  Cal.  453.  A  denial 
"on  information  and  belief"  is  sufficient.  It  is 
not  necessary   to   follow  the   precise  words  of  the 


367 


DENIALS— SUFFICIENT   AND   INSUFFICIENT. 


§437 


statute,    by    saying    "on    his    itiforiniitinn    and    be- 
lief," etc.    RoiKsin  v.   Stewart,  3:5  Cal.  208. 

10.  What  are  good  denials.  Instead  of  deny- 
iug  the  complaint  in  e.xpress  terni.s,  averments 
that  the  defendant  did  not  commit  ihe  act  charsed, 
or  that  the  facts  allesed  to  exist  do  not  exist, 
traverse  the  matters  alleged,  and  are  good  denials 
of  the  allegations  of  complaint.  Hill  v.  Smith,  27 
Cal.  479.  If  defendant  does  not  deny  the  charges 
in  a  complaint,  making  out  a  prima  facie  case 
for  the  plaintiffs,  on  him  will  rest  the  onus  of 
proving  his  aflirmative  allegations.  Thompson  v. 
Lee,  8  Cal.  275.  See  also  Caulfleld  v.  Sanders, 
17  Cal.  569.  Averments  of  mere  evidence  are 
not  admitted  by  failure  to  deny  Iheni  in  the  an- 
swer. Racouillat  v.  Rene,  32  Cal.  450.  If  the 
complaint  i.''  verified,  a  general  denial  in  the 
answer  admits  all  its  material  allegations.  Pico 
V.  Colimas,   32  Cal.   57.'^. 

11.  Denial,  when  sufficient,  "upon  information 
and  belief."  A  denial  of  a  material  allegation 
of  a  complaint,  "upon  information  and  belief,"  is 
a  sufficient  denial  to  raise  issue  thereupon.  Jones 
V.  Petaluma,  36  Cal.  231,  afifirming  Vassault  v. 
Austin,  32  Cal.  597,  and  Roussin  v.  Stewart,  33 
Cal.  208. 

12.  What  is  a  sufficient  denial.  Waiving  in- 
sufficiency of  denial.  Where  certain  material  al- 
legations of  the  complaint  were  so  defectively 
denied  that  such  denials  might,  upon  motion, 
have  been  stricken  out  as  sham  and  irrelevant, 
yet,  without  any  objection,  the  plaintiff  was 
allowed  to  introduce  evidence  in  support  of  the 
averments,  during  the  trial  it  was  held  that,  by 
the  introduction  of  such  evidence,  the  plaintiff 
waived  all  objection  to  sufficiency  of  such  denial, 
and  the  court  properly  refused  to  instruct  the 
jury  that  the  facts  averred  were  admitted  to  be 
true,  because  not  properlv  denied.  Tvnan  v. 
Walker.   35  Cal.   635;   95   Am.   Dec.   152. 

13.  Denial  of  material  allegations  only  suffi- 
cient. A  denial  of  the  ultimate  facts,  or  ma- 
terial allegations  of  the  complaint,  is  sufificient. 
Moore  V.  Murdock,  26  Cal.  524;  Racouillat  v. 
Rene,   32   Cal.  450. 

14.  What  is  a  sufficient  denial  to  put  plaintiff 
on  proof  as  to  a  contract.  Murphy  v.  Napa 
County.   20  Cal.  487. 

15.  Setting  forth  contract  in  terms  in  answer. 
Defendant  mav  ask  profert  of  a  written  instru- 
ment, or  may,  if  it  is  misstated  in  complaint,  set 
fortii  i"i  his  answer  the  contract  in  haec  verba, 
and  then  demur  on  the  ground  of  variance.  Stod- 
dard  V.  Treadwell,   26   Cal.  294. 

16.  Matter  contained  in  complaint  by  way  of 
anticipating  a  defense  need  not  be  denied.  The 
complaint  stated  a  cause  of  action  for  goods  sold, 
and,  in  addition,  with  a  view  to  meet  a  probable 
defense  of  payment  based  upon  the  giving  of 
certain  notes  by  defendant  and  a  receipt  in  full 
by  plaintiff,  stated  the  making  of  the  notes  and 
receipt  and  alleged  facts  attending  the  transac- 
tion, which,  if  true,  avoided  its  effect  as  payment 
by  reason  of  fraud  and  misrepresentation  on  the 
part  of  defendant.  The  answer  admitted  the 
original  demand,  and  averred  payment  by  the 
noies  referred  to  in  the  complaint,  but  did  not 
deny  the  alletrations  in  the  complaint  respecting 
the  fraud  of  defendant  in  the  transaction.  It 
was  held  that  the  allegations  of  the  complaint  in 
reference  to  the  transaction,  claimed  to  operate 
as  payment,  were  not  material  allegations  requir- 
ing a  denial,  and  wore  not  therefore  admitted 
by  the  failure  of  defendant  to  deny  them.  Can- 
field  V.  Tobias,  21   Cal.  349. 

17.  Conclusions  of  law  must  not  be  denied. 
Denial  of  debt,  without  a  denial  of  any  of  the 
facts  from  which  the  debt  followed,  as  a  conclu- 
sion of  law,  raises  no  issue.  Curtis  v.  Richards, 
9  Cal.  33;  Wells  v.  McPike,  21  Cal.  215.  A 
denial  of  a  conclusion  of  law,  without  the  denial 
of  the  facts,  is  insufficient.  Nelson  v.  Murray, 
23  Cal.  338;  Wedderspoon  v.  Rogers,  32  Cal. 
569;  People  v.  Board  of  Supervisors,  27  Cal.  655. 

18.  Denial  of  conclusions  of  law  admission  of 
certain  facts.  If  a  complaint  alleges  that  de- 
fendant "wrongfully  and  unlawfully"  took  and 
carried   away   personal   property,    and    the   answer 


denies  that  defendant  "wrongfully  and  unlaw- 
fully" took  and  carried  it  away,  it  is  an  admis- 
sion of  the  taking  and  carrying  away,  and  only 
a  denial  of  its  wrongful  character.  Lay  v.  Neville, 
25  Cal.  549. 

19.  Answering  one  of  several  averments.  An 
averment  purporting  to  answer  the  wh(de  com- 
plaint, but  in  fact  only  answering  one  of  the  two 
averments,  is  bad.  This  was  the  rule  at  common 
law,  and  it  apjilies  under  our  system.  Wallace  v. 
Bear  River  etc.   Mining  Co.,    is' Cal.   -liil. 

20.  General  denial  under  forcible  entry  and  de- 
tainer act.  Under  the  act  concerning  forcible 
entries  and  unlawful  detainer,  a  verified  "general 
denial"  was  a  sufficient  denial  of  a  complaint 
duly  verified.    Sullivan  v.  Cary,   17  Cal.  85. 

21.  Denial  of  conclusion  of  law  and  immaterial 
issues  insufficient  denial.  The  complaint  alleged 
that  on  a  certain  day  plaintiff  was  the  owner  and 
in  possession  of  the  pro))erly,  and  that  its  value 
was  a  certain  sum.  The  answer,  denying  that 
on  the  day  specified  "the  plaintiff  was  the  owner 
and  lawfully  in  possession,"  and  as  to  its  value, 
averring  that  the  defendant  has  no  knowledge, 
etc.,  and  therefore  denies  that  it  is  worth  the 
said  sum,  is  insufficient,  because  it  raises  an  im 
material  issue  as  to  time;  and,  as  to  the  pos- 
session of  the  property,  it  amounts  merely  to 
a  conclusion  of  law.  Kuhland  v.  Sedgwick,  17 
Cal.  123.  An  answer  to  allegations  in  a  com- 
plaint which  states  the  rendition  of  a  judgment 
against  the  defendant,  and  states  the  character 
of  the  judgment,  denying  that  the  defendant  be- 
came or  was  lawfully  bound  by  the  judgment,  is 
only  a  denial  of  a  conclusion  of  law,  and  does  not 
raise  an  issue  of  fact.  If  the  judgment  can  be 
attacked  collaterally,  the  answer  must  specify 
the  points  of  its  invalidity.  People  v.  Board  of 
Supervisors,  27  Cal.  655.  And  if  the  passage  of 
a  municipal  ordinance  is  alleged,  an  answer  stat- 
ing, in  general  terms,  that  the  ordinance  is  void 
and  illegal,  is  insufficient,  as  no  issue  of  fact  is 
raised.  People  v.  Board  of  Supervisors,  27  Cal. 
655. 

22.  What  are  deemed  Insufficient  denials.  In 
a  suit  to  recover  the  possession  of  personal  prop- 
erty, an  averment,  that  the  "plaintiff  was  the 
owner  and  in  possession  of  the  property,"  is  not 
traversed  by  an  answer  which  denies  that  the 
"plaintiff  was  the  owner  and  entitled  to  the  pos- 
session of  the  property."  Nor  is  the  averment 
that  the  "defendant  wrongfully  took  the  property 
from  plaintiff's  possession,  and  from  thence  to 
the  time  the  action  was  commenced  wrongfully 
detained  the  same,"  traversed  by  a  denial  "that 
the  defendant  at  any  time  wroiigfullv  took  and 
detained  the  property  from  the  plaintiff.  If  the 
answer  does  not  traverse  the  material  allegations 
of  the  complaint,  and  does  not  set  forth  facts 
sufficient  to  constitute  a  defense,  and  the  plead- 
ings are  not  verified,  a  closing  denial,  that  "the 
defendants,  denying  each  and  every  allegation  set 
forth  in  plaintiff's  complaint  not  consistent  with 
the  foregoing  answer."  fails  to  raise  anv  issue, 
and  is  bad.  Richardson  v.  Smith,  29  Cal.  530. 
An  answer  is  insufficient  and  bad  if  it  does  not 
deny  any  of  the  material  allegations  of  a  verified 
complaint,  either  positively  or  according  to  in- 
formation and  belief:  these  are  the  only  forms 
in  which  the  allegations  of  a  verified  complaint 
can  be  controverted  so  as  to  raise  an  issue.  A 
denial  in  any  other  form  is  unknown  to  our  sys- 
tem of  practice,  and  is  bad.  San  Francisco  Gas 
Co.  V.  San  Francisco,  9  Cal.  453. 

23.  What  are  deemed  sham  or  irrelevant  an- 
swers. Sham  or  irrelevant  answers  may  be 
stricken  out,  on  motion.  Answers  consisting  in 
whole  or  in  part  of  defective  denials,  which  do 
not  explicitly  traverse  the  material  allegations 
of  the  complaint,  are,  as  to  such  denials,  sham 
and  irrelevant,  within  the  meaning  of  the  code 
Tynan  v.  Walker,  35  Cal.  646,  95  Am.  Dec.  152, 
citing  People  v.  McCumber,  18  N.  Y.  315;  72 
Am.   Dec.   515;    Gay   v.   Winter,    34   Cal.   153.' 

24.  Denial  of  allegations  stated  conjunctively 
in  verified  complaint.  An  answer  is  insufficient 
which  attempts  to  deny  these  alleirations  as  ."> 
whole,    conjunctively    stated.      And    the    allegation 


437 


ANSWER. 


368 


thus  attempted  to  be  denied  is,  in  fact,  admitted. 
Doll  V.  Good,  38  Cal.  287.  The  material  facts 
of  the  complaint,  slated  conjunctively,  except  the 
allegation  that  by  reason  of  the  premises  the 
plaintiff  has  been  injured  and  sustained  damage 
in  the  sum  of  ten  thousand  dollars,  are  under- 
taken to  be  answered  by  the  defendants  denying 
them  as  a  whole,  as  conjunctively  stated,  as  will 
be  seen  by  placing  any  one  aggregated  statement 
of  facts  in  the  complaint  in  juxtaposition  with 
the  answer  thereto.  This  mode  of  answering  is 
in  violation  of  the  principles  of  common-law 
pleading,  and  not  less  so  of  the  statute,  which 
provides  that  the  defendant's  answer  to  a  verified 
complaint  shall  contain  a  specific  denial  to  each 
allegation  of  the  complaint  controverted,  or  a  de- 
nial thereof  according  to  the  defendants'  infor- 
mation and  belief.  Those  interested,  and  who 
have  any  doubt  on  the  subject,  will  find  the  fol- 
lowing authorities  worthy  of  careful  examination: 
Blankman  v.  Vallejo,  15  Cal.  638;  Kuhland  v. 
Sedgwick,  17  Cal.  123;  Caulfield  v.  Sanders,  17 
Cal.  569;  Brown  v.  Scott,  25  Cal.  195;  Landers 
V.  Bolton,  26  Cal.  417;  Busonius  v.  Coffee,  14 
Cal.  91;  Hensley  v.  Tartar,  14  Cal.  508;  Hop- 
kins V.  Everett,  6  How.  Pr.  159;  Salinger  v. 
Lusk,  7  How.  Pr.  430;  Davison  v.  Powell,  16 
How.  Pr.  467:  Shearman  v.  New  York  Central 
Mills,  1  Abb.  Pr.  187;  Baker  v.  Bailey,  16  Barb. 
54;  Fish  v.  Redington.  31  Cal.   194. 

25.  Insufficient  denial  is  admission  of  truth  of 
averments  iu  complaint.  On  failure  of  proper 
denials,  plaintiff  is  entitled  to  judgment  upon  the 
pleadings.  The  rules  of  pleading,  under  our 
system,  are  intended  to  prevent  evasion  and  to 
require    a    denial    of    every    specific    averment    in 

•  a  sworn  complaint,  in  substance  and  in  spirit, 
and  merely  a  denial  of  its  literal  truth,  and 
whenever  the  defendant  fails  to  make  such  denial 
he  admits  the  averment.  Doll  v.  Good,  38  Cal. 
290,  citing,  as  authority.  Smith  v.  Richmond,  15 
Cal.  501;  Blankman  v.  Vallejo,  15  Cal.  638; 
Castro  V.  Wetmore.  16  Cal.  380;  Hissins  v.  Wor- 
tell,  18  Cal.  333;  Woodworth  v.  Knowlton,  22 
Cal.  169;  Landers  v.  Bolton,  26  Cal.  417;  Mor- 
rill V.  Morrill.  26  Cal.  292;  Camden  v.  Mullen, 
29    Cal.   564;    Blood  v.   Light,    31    Cal.    115. 

26.  Failure  to  deny,  ■when  not  an  admission. 
If  a  complaint  alleges  the  value  of  all  the  prop- 
erty destroyed,  for  which  the  action  is  brought, 
in  gross — for  some  items  of  which  no  recovery 
can  be  had — an  answer  containing  no  denial  of 
the  averment  of  value,  does  not  thereby  admit 
the  value  of  the  property  for  which  a  recovery 
may  be  had.  Nunan  v.  San  Francisco,  38  Cal. 
689. 

27.  Denial  of  averment  in  the  exact  words  of 
the  complaint.  Denial  of  immaterial  issues.  A 
denial  of  a  debt  as  to  time,  amount,  and  work, 
in  the  precise  words  of  the  complaint,  raises  only 
an  immaterial  issue  upon  these  particulars,  in- 
stead of  meeting  the  substantial  matter  averred, 
and  is  therefore  bad.  Caulfield  v.  Sanders,  17 
Cal.  569.  The  code  system  is  intended  to  pre- 
vent evasion,  and  to  require  a  denial  of  each 
specific  averment  in  a  verified  complaint  in  sub- 
stance and  in  spirit,  and  not  merely  a  denial  of 
its  literal  truth;  and  whenever  the  defendant 
fails  to  make  such  denial,  h?  admits  the  allega- 
tions. Smith  V.  Richmond,  15  Cal.  501;  see 
Camden  v.  Mullen,  29  Cal.  564;  Leffingwell  v. 
Griffing,  31  Cal.  231  :  Landers  v.  Bolton,  26  Cal. 
416.  A  denial  merely  of  what  is  non-essential 
in  the  allegations  of  a  complaint,  is  an  admission 
of  all  that  is  es.sential  to  a  recovery.  Leffingwell 
V.  Griffing.  31  Cal.  231. 

28.  Denial  of  indebtedness  in  exact  amount  is 
bad.  ^Vhere  the  complaint,  verified,  avers  that 
defendant  is  indebted  to  plaintiff  for  goods,  wares, 
and  merchandise,  sold  and  delivered,  in  the  sum 
of  eight  hundred  and  twenty-eight  dollars  and 
sixteen  cents,  an  answer  denying  that  defendant 
is  indebted  in  the  sum  of  eight  hundred  and 
twenty-eight  dollars,  sixteen  cents,  as  is  set  out 
in  the  complaint,  is  bad.  Higgins  v.  Wortell,  18 
Cal.  330;  see  Woodworth  v.  Knowlton,  22  Cal. 
164;  Towdy  v.  Ellis,  22  Cal.  650;  Verzan  v.  Mc- 
Gregor, 23  Cal.  339. 


29.  Other  insufficient  and  bad  denials.  Where 
an  allegation  in  a  verified  complaint  embraces 
several  distinct  propositions  stated  conjunctively, 
a  denial  iu  the  answer,  of  the  entire  averments 
following  the  exact  words  of  the  complaint,  raises 
no  issues,  and  is  bad.  Woodworth  v.  Knowlton, 
22  Cal.  164;  Reed  v.  Calderwood,  32  Cal.  109. 
When  several  averments  are  not  joined  by  the 
conjunction  "and,"  a  denial  of  the  allegations, 
conjunctively,  will  not  amount  to  a  denial  of  the 
allegations;  each  proposition  should  be  sepa- 
rately denied.  Fitch  v.  Bunch,  30  Cal.  208;  More 
V.  Delvalle,  28  Cal.  170;  Fish  v.  Redington,  31 
Cal.  185.  An  answer  to  a  material  allegation 
of  a  verified  complaint  which  denies  the  same 
upon  information  and  belief,  is  insufficient.  Nel- 
son v.  Murray,  23  Cal.  338. 

30.  Other  insufficient  denials.  An  answer  to  a 
verified  complaint  which  denies  "generally  and 
specifically  each  and  every  material  allegation  in 
the  complaint,  the  same  as  if  such  an  allegation 
were  herein  recapitulated,"  and  also  denying  each 
allegation  in  the  same  form,  with  certain  quali- 
fications and  exceptions,  does  not  raise  an  issue 
upon  any  fact  staled  in  the  complaint.  Hensley 
V.  Tartar,  14  Cal.  508.  An  allegation,  in  a  veri- 
fied complaint,  that  "defendants  wrongfully  and 
unlawfully  entered  upon  and  dispossessed"  plain- 
tiff, is  not  sufliciently  denied  by  a  denial  that 
"defendants  wrongfully  and  unlawfully  entered 
and  dispossessed  plaintiff",''  because  such  denial 
admits  entry  and  ouster.  Busenius  v.  Coffee,  14 
Cal.  91. 

31.  Consistency  of  answer  in  all  its  parts. 
Where  the  admissions  in  an  answer  are  opposed 
to  its  general  denials,  the  denials  will  be  dis-^ 
regarded,  and  judgment  given  upon  the  former, 
where  the  complaint  is  verified,  and  the  answer 
consists  of  such  admissions  and  denials.  Fre- 
mont V.  Seals,  18  Cal.  433;  see  also  Klink  v. 
Cohen,  13  Cal.  623;  Uridias  v.  Morrell,  25  Cal. 
35.  Where  an  amended  answer  is  inconsistent 
with  the  original  answer,  the  two  cannot  stand 
together.  Kuhland  v.  Sedgwick,  17  Cal.  123.  A 
verified  answer  must  not  deny  in  one  sentence 
what  it  admits  lo  be  true  in  the  next.  Hensley 
v.  Tartar,   14  Cal.  508. 

32.  Sufficiency  of  denial,  how  to  be  determined. 
In  order  to  determine  whether  the  denials  of  an 
answer  are  evasive,   each  separate   denial  of   each 

separate    averment    must    be    taken    by    itself If 

the  answer  to  a  particular  averment  is  a  denial 
of  it,  and  there  is  no  admission  in  the  answer 
inconsistent  v/ith  the  denial,  an  issue  is  fairly 
made.    Racouillat  v.  Rene,  32  Cal.  450. 

33.  Misjoinder  and  non-joinder  of  parties  plain- 
tiff and  defendant.  Objection  to  misjoinder  of 
parties  defendant  should  be  taken  by  demurrer 
or  answer.  An  answer  will  not  be  treated  as 
a  plea  in  abatement  for  a  misjoinder  of  parties 
defendant,  after  the  testimony  has  disclosed  a 
proper  cause  of  action  against  them.  Warner  v. 
Wilson,  4  Cal.  33  3.  Where  two  are  joined  as 
plaintiff  in  an  action  for  the  recovery  of  posses- 
sion of  land,  a  denial  in  the  answer,  that  the 
plaintiffs  were  in  possession  of  the  land,  does  not 
raise  the  issue  of  a  misjoinder  of  either  of  the 
plaintiffs.  Gillam  v.  Sigman.  29  Cal.  r,^7.  For 
non-joinder  of  parties  plaintiff,  see  Whitney  v. 
Stark.  8  Cal.  516;  68  Am.  Dec.  360.  And  for 
answer  setting  up  misjoinder  and  non-joinder  of 
parlies.     Fulton    v.    Cox,    40    Cal.     105. 

34.  An  answer  is  not  evidence.  Goodwin  v. 
Hammond,  13  Cal.  168;  73  Am.  Dec.  574.  Nor 
does  it  require  two  witnesses  to  controvert  a 
verified  answer.  Bostic  v.  Love,  16  Cal.  69; 
Blankman  v.  Vallejo,   15  Cal.   638. 

35.  What  proof  may  be  made  under  specific 
and  general  denials.  See  Jackson  v.  Feather 
River  etc.  Water  Co.,  14  Cal.  18;  Hawkins  v. 
Borland,  14  Cal.  413.  It  was  held,  that  defend- 
ant may  prove  an  eviction  on  a  claim  for  rent 
in  arrear,  under  the  plea  nil  debit,  or  general 
denial.  McLarren  v.  Spalding,  2  Cal.  510.  But 
this  was  overruled  in  Piercy  v.  Sabin,  10  Cal. 
30;  70  Am.  Dec.  692;  and  consequently  an  evic- 
tion must  be  set  up  in  the  answer. 


369 


ALLEGATIONS  ADSflTTED  WHEN — NEW   MATTER. 


§437 


36.  Allegations  of  complaint  admitted,  ■when 
not  denied.  t'lilrss  the  answor  denies  Ihe  alio 
gatioiis  of  the  coniplainf ,  they  are  admitted,  and 
constitute  conclusive  evidence  of  the  extent  of 
the  damages  claimed.  Patterson  v.  Ely.  19  Oal. 
28.  The  failure  to  deny  a  material  allefration 
is  an  admission  of  the  facts  contained  in  such 
averment,  and  such  admission  is  conclusive. 
Burke  v.  Table  Mountain  Water  Co.,  12  Cal.  403. 
Under  the  code,  a  specific  denial  of  one  or  more 
allegations  is  held  to  be  an  admission  of  all  others 
well  pleaded.  De  Ro  v.  Cordes,  4  Cal.  117.  An 
admission  without  fraud  to  rights  of  client,  by 
an  attorney  of  record,  of  the  correctness  of  an 
amount  due,  for  which  .iudgment  is  taken,  de- 
stroys the  effect  of  a  denial  in  an  answer.  Taylor 
V.  Randall,  .5  Cal.  79.  An  answer  is  not  proof 
for  defendant,  but  an  admission  in  the  answer  of 
a  fact  stated  in  the  complaint  is  conclusive  evi- 
dence against  him.  Blankman  v.  Vallejo,  15  Cal. 
f).38.  If  the  complaint  contains  two  causes  of 
action,  and  the  answer  takes  issue  on  the  allega- 
tions of  but  one,  plaintiff  is  entitled  to  judgment 
on  the  other.    T^eflingwell  v.  Griffing,   31   Cal.  231. 

37.  Allegations  not  denied  are  deemed  to  be 
admitted.  The  intent  of  the  statute  is  fully  car- 
ried out  by  excluding  parol  testimony  to  contra- 
dict a  deed;  but  where  parties  admit  the  real 
facts  of  the  transaction  in  their  pleadings,  these 
admissions  are  to  be  taken  as  modifications  of 
the  instrument.  Lee  v.  Evans,  8  Cal.  424.  No 
evidence  is  required  as  to  facts  not  denied.  Pat- 
terson v.  Ely.  19  Cal.  28. 

38.  What  must  be  specifically  stated  in  an- 
swer. Special  defenses.  Statute  of  limitations, 
see  §  458.  post,  also  note  47,  post.  Release. 
Coles  V.  Soulsby,  21  Cal.  50;  Turner  v.  Caruthers, 
17  Cal.  431.  Statute  of  frauds.  Osborne  v.  Endi- 
cott,  6  Cal.  149:  65  Am.  Dee.  498.  Subse- 
quently acquired  title  by  defendant  in  ejectment. 
Moss  V.  Shear,  30  Cal.  468.  Transfer  of  title 
by  plaintiff.  Id.  Tax  titles.  Russell  v.  Mann, 
22  Cal.  132.  Tax  titles  accruing  after  action 
commenced.  McMinn  v.  O'Connor,  27  Cal.  246; 
see  "Supplemental  Answer."  Composition  with 
creditors.  Smith  v.  Owens,  21  Cal.  11.  Counter- 
claim should  be  pleaded.  Hicks  v.  Green,  9  Cal. 
74.  Disclaimers.  Noe  v.  Card,  14  Cal.  576;  De 
Uprey  v.  De  Uprey,  27  Cal.  331;  87  Am.  Dec. 
81.  Equitable  titles,  defenses,  and  estoppels. 
Clarke  v.  Huber,  25  Cal.  597;  Carpentier  v.  Oak- 
land, 30  Cal.  439:  Flandreau  v.  Dovrney,  23  Cal. 
354;  Blum  v.  Robertson,  24  Cal.  146;  Downer 
V.  Smith,  24  Cal.  124.  Estoppels.  Clarke  v. 
Huber,  25  Cal.  593.  An  estoppel  by  deed  or 
matter  of  record  should  be  pleaded  as  such,  where 
there  is  an  upporiunity  to  plead  it.  Flandreau 
V.  Downey,  23  Cal.  354.  Eviction  of  the  ten- 
ant must  be  set  up  when.  Piercy  v.  Sabin,  10 
Cal.  30;  70  Am.  Dec.  692.  For  fixture  of  min- 
ing claims.  Wiseman  v.  McNulty,  25  Cal.  230; 
Dutch  Flat  Water  Co.  v.  Tklooney,  12  Cal.  534. 
Former  recovery.  Vance  v.  Olinger,  27  Cal.  358; 
Marshall  v.  Shafter,  32  Cal.  176.  Fraud,  etc. 
People  V.  Board  of  Supervisors,  27  Cal.  656. 
Grant  of  an  easement  of  servitude.  American 
Company  v.  Bradford,  27  Cal.  368.  Misjoinder 
of  parties  plaintiff,  owing  to  matters  which  have 
occurred  pending  the  action,  must  be  taken  by 
supplemental  answer,  or  it  is  waived.  Calder- 
wood  v.  Pyser,  31  Cal.  333.  New  matter  must 
be  specially  pleaded.  Coles  v.  Soulsby,  21  Cal. 
47.  New  matter  occurring  after  issue  joined 
must  be  set  up  by  supplemental  answer.  Jessup 
V.  King,  4  Cal.  331.  Payment.  Coles  v.  Soulsbv, 
21  Cal.  47;  Frisch  v.  Caler.  21  Cal.  71.  In 
Frisch  v.  Caler,  21  Cal.  71,  it  is  held  that  a  plea 
of  payment  is  not  new  matter,  and  in  Fairchild 
V.  Am.sbaugh,  22  Cal.  575,  the  court  say,  it  fol- 
lows, that  it  is  not  necessary  to  set  it  up  as  a 
special  defense  in  the  answer;  but  this  is  op- 
posed to  the  opinion  of  Field,  C.  J.,  in  Green 
V.  Palmer,  15  Cal.  417;  76  Am.  Dec.  492;  and 
Burnett,  J.,  in  Piercy  v.  Sabin,  10  Cal.  27;  70 
Am.  Dec.  692;  and  to  the  numerous  authorities 
in  New  York  and  elsewhere;  see  Voorhees'  New 
York    Code,    8th    ed.,    pp.    274,    284b;     Vansant- 

1  Fair. — 24 


voord's  Pleading,  p.  454;  see  Piercy  ▼.  Sabin,  10 
Cal.  30;  70  .Xm.  Dec.  602.  Cnworkmanlike  man- 
ner of  doing  work.  Kendall  v.  Vallcj'i,  1  Cal. 
371.  \\'ant  of  capacitv  in  a  plaintiff  to  sue. 
ralifornia  Steam  Nav.  Co.  v.  Wright,  8  Cal.  ."iSS. 
That  items  in  an  account  are  overcharged.  Terry 
V.  Sickles,  13  Cal.  427.  Abandonment  of  land 
need  not  be  pleaded.  Willson  v.  Cleaveland.  30 
Cal.  192.  Abandonment  was  affirmatively  averred 
by  the  defendant  in  St.  John  v.  Kidd,  26  Cal. 
266.  Abandonment.  Tooms  v.  Randall,  3  Cal. 
438;  Hentsch  v.  Porter.  10  Cal.  555.  Another 
action  pending  was  pleaded  in  the  case  of  O'Con- 
nor V.  Blake.  29  Cal.  314;  Calaveras  County  v. 
Brnckway.  30  Cal.  325.  Accord  and  satisfaction. 
Coles  v.  Soulsby,  21  Cal.  47;  Piercy  v.  Sabin, 
10  Cal.  30;   70  Am.  Dec.  692. 

39.  Pleading  discharge  in  Insolvency.  Rahm 
V.  Minis,   •!()  Cal.  41 1 . 

40.  Pleading  equitable  titles.  It  is  not  the 
province  of  the  jury,  but  of  the  court,  to  pass 
upon  the  e(|uitable  title  set  up  in  the  answer, 
and  it  must  be  sufficiently  pleaded  to  authorize 
the  court  to  grant  a  decree  which  will  estop  the 
further  prosecution  of  the  action.  Downer  v. 
Smith.  24  Cal.  114;  Arguello  v.  Edinger,  10  Cal. 
150;  Lestrade  v.  Barth,  19  Cal.  660;  Patterson 
V.  Ely,  19  Cal.  2r!;  Estrada  v.  Murphy,  19  Cal. 
248;  Meador  v.  Parsons,  19  Cal.  294;  Blum  v. 
Robertson,  24  Cal.  127;  Davis  v.  Davis,  26  Cal. 
38;  85  Am.  Dee.  157;  Clarke  v.  Huber,  25  Cal. 
593. 

41.  New  matter  set  up  in  answer.  Where  the 
pleadings  are  verified,  every  matter  of  defense 
not  directly  responsive  in  the  allegations  of  that 
complaint  must  be  alleged  in  the  answer.  Terry 
V.  Sickles.  13  Cal.  427.  New  matter  must  be 
specially  pleaded;  and.  in  ejectment,  a  transfer 
of  title  by  the  plaintiff,  or  a  title  acquired  by 
defendant  pending  the  action,  must  be  pleaded  by 
supplemental  answer,  or  it  cannot  be  given  ia 
evidence.    Moss  v.  Shear,  30  Cal.  4(iS. 

42.  Introduction  of  new  matter  in  avoidance. 
When  defendant  seeks  to  introduce  into  the  case 
a  defense  not  disclosed  by  the  pleadings;  when 
something  relied  on  by  defendant  which  is  not 
put  in  issue  by  the  plaintiff,  this  is  new  matter. 
Bridges  v.  Paige  13  Cal.  640;  see  also  Coles  v. 
Suulsby,  21  Cal.  47. 

In  Piercy  v.  Sabin,  10  Cal.  27,  70  Am.  Dec. 
692,  the  court  say:  "Under  §437,  there  are  only 
two  classes  of  defense  allowed.  The  first  con- 
sists of  a  simple  denial;  and  the  second,  of  the 
allegation  of  new  affirmative  matter.  And  as 
the  code  has  abolished  all  distinctions  in  the 
forms  of  action,  and  requires  only  a  simple  state- 
ment of  the  facts  constituting  the  cause  of  action 
or  defense,  these  two  classes  of  defense  must  be 
the   same  in  all   cases. 

"The  plaintiff  is  required  to  state  in  his  com- 
plaint the  facts  that  constitute  his  cause  of  ac- 
tion; and  it  seems  to  have  been  the  intention  of 
the  code  to  adopt  the  true  and  just  rule,  that  the 
defendant  must  either  deny  the  facts  as  alleged 
or  confess  and  avoid  them.  It  is  certain  that 
where  new  matter  exists  it  must  be  stated  in  the 
answer.  The  answer  'shall  contain  a  statement 
of  any  new  matter  constituting  a  defense."  The 
language  of  this  section  is  very  clear,  that  this 
new  matter,  whatever  it  may  be,  must  be  set  up 
in  the  answer.  The  question  then  ari.ses.  What 
is  'new  matter,'  in  the  contemplation  of  the  code 
itself?  New  matter  is  th.Tt  which,  under  the  rules 
of  evidence,  the  defendant  must  affirmatively  es- 
tablish. If  the  onus  of  proof  is  thrown  upon  the 
defendant,  the  matter  to  be  proved  by  him  is  new 
matter.  A  defense  that  concedes  that  the  plain- 
tiff once  had  a  good  cause  of  action,  but  insists 
that  it  no  loneer  exists,  involves  new  matter. 
1  Chitty's  Pleading,  p.  472:  Gilbert  v.  Cram,  12 
How.  Pr.  455;  Radde  v.  Ruckgaber,  3  Duer,  685; 
Brazil  v.  Ishani.  12  X.  Y.  17. 

"If  facts  which  occur  subsequently  to  the 
date  of  the  original  transaction  do  not  consti- 
tute new  matter,  what  facts  do  constitute  itf 
And  if  any  subsequent  matter  can  properly  be 
called  'new  matter,'  must  not  all  subsequent  mat- 


§437 


ANSWER, 


370 


ters  be  equally  entitled  to  the  same  designation  I 
Tlie  languape  of  the  code  is  explicit,  that  the 
'answer  shall  contain  a  statement  of  any  new 
matter  constituting  a  defense.'  The  code  maltes 
no  distinction  between  ditferent  classes  of  new 
matter.  AH  new  matter  of  defense  must  be 
stated  in  the  answer. 

"This  feature  of  the  code  is  one  of  the  most 
beneficial  and  obvious  improvements  upon  the 
former  system.  This  classification  of  defenses 
is  simple,  logical,  and  just.  Each  party  is  dis- 
tinctly apprised  of  all  the  allegations  to  be 
proven  by  the  other;  and  each  is,  therefore, 
prepared  to  meet  the  proofs  of  his  adversary. 
The  plaintiff  is  compelled  to  set  out  every  fact 
necessary  to  constitute  his  cause  of  action,  and 
the  defendant  every  new  matter  of  defense.  This 
is  required  by  the  true  principles  of  pleading. 
1  Chitty's  Pleading,  p.  526. 

"Two  of  the  leading  ends  contemplated  by  the 
code  are  simplicity  and  economy.  Adams  v. 
Hackett,  7  Cal.  187.  As  contributing  to  the  at- 
tainment of  these  ends,  it  was  the  intention  of 
the  code  to  require  the  pleadings  to  be  so 
framed  as  not  only  to  apprise  the  parties  of  the 
facts  to  be  proved  by  them,  respectively,  but 
to  narrow  the  proofs  upon  the  trial.  The  in- 
tention is  clearly  shown,  not  only  by  the  spirit 
and  general  scope  of  the  system,  but  by  par- 
ticular provisions.  The  different  provisions  of  the 
act,  when  construed  together  and  legitimately  ap- 
plied, lead  to  this  conclusion. 

"If  we  take  the  theory  to  be  true,  that,  under 
our  system,  the  defendant,  by  simply  denying  the 
allegations  of  the  complaint,  may  give  in  evi- 
dence all  matters  which  could  be  formerly  given 
in  evidence  under  the  general  issue,  it  is  diffi- 
cult to  perceive  what  purpose  the  code  has  ac- 
complished by  the  provisions  of  §  437.  The 
classification  of  defenses  therein  found  would 
be  substantially  useless.  In  vain  has  that  sec- 
tion provided  that  the  answer  shall  contain  a 
statement  of  any  new  matter  constituting  a  de- 
fense, when  nearly  all  such  matter  could  be 
given  in  evidence  under  a  simple  denial  in  the 
answer.  Under  the  former  system,  almost  every 
matter  in  discharge  of  the  action  could  be  given 
in  evidence  under  the  general  issue. 

"But  this  theory  would  seem  to  be  liable  to 
the  most  substantial  objections,  and  to  lead,  in 
practice,  to  bad  results. 

"The  plaintiff  states  the  facts  that  constitute 
his  cause  of  action.  He  is  not  required  to  state 
conclusions  of  law.  The  liability  of  the  defend- 
ant is  the  result  or  conclusion  which  the  law 
draws  from  the  facts  alleged.  If  a  complaint' 
should  only  allege  that  the  defendant  was  in- 
debted to  the  plaintiff  in  a  named  sum,  which 
the  defendant  refused  to  pay,  the  complaint 
would  not  state  facts  sufficient  to  constitute  a 
cause  of  action.  The  complaint  must  allege  the 
facts  that  constitute  the  indebtedness.  When, 
therefore,  the  facts  constituting  the  cause  of 
action  are  stated,  a  simple  denial  of  these  facts 
can  properly  put  in  issue  only  the  constituent 
facts,  and  not  the  mere  conclusion  from  the 
facts.  The  plaintiff,  therefore,  comes  prepared 
to  prove  the  facts,  as  alleged.  But  if  the  de- 
fendant, under  his  simple  denial,  is  permitted  to 
prove  almost  everything  in  discharge  of  the  ac- 
tion, the  plaintiti  cannot  know  how  to  avoid 
surprise  upon  the  trial,  unless  he  comes  pre- 
pared to  meet  every  possible  ground  that  may  be 
taken  by  the  defendant.  The  result  is  a  great 
and  unnecessary  increase  of  costs  in  many  cases. 
The  plaintiff  is  not  to  blame,  because  he  could 
not  know  what  he  had  to  meet.  The  defendant 
is  not  to  blame,  because  he  only  wished  to  deny 
the  allegations  of  the  complaint,  and  not  to  in- 
troduce any  new  matter.  But  the  rule  would 
not  allow  him  to  do  so,  in  a  form  that  would 
apprise  the  plaintiff  clearly  of  all  he  intended, 
and  no  more.  The  rule  made  his  answer  wider 
than  he  intended.  He  simply  denied  the  allega- 
tions of  the  complaint.  He  could  do  no  less,  if 
he  defended  at  all. 

"If  it  be  said  that,  under  §  441,  the  defend- 
ant may  plead  as  many  defenses  as  he  may  have, 
and    in    this    way    compel    the    plaintiff    to    come 


prepared  to  meet'  as  many  grounds  as  he  would 
have  had  to  meet  under  the  general  issue,  we  re- 
ply, that  the  argument  is  not  sound.  Under  the 
view  we  have  taken,  the  defendant  may  protect 
himself  against  unnecessary  costs  by  only  put- 
ting in  issue  the  allegations  of  the  complaint,  or 
by  conceding  them  to  be  true  and  setting  up  new 
matter,  thus  narrowing  the  proofs  upon  the  trial. 
So  under  our  view,  the  plaintiff  is  protected 
against  sham  defenses. "  which  may  be  stricken 
out  on  motion.  Post,  §  453.  A  sham  answer  is 
one  good  in  form,  but  false  in  fact,  and  not 
pleaded  in  good  faith.  It  sets  up  new  matter 
which  is  false.  Nichols  v.  Jones,  6  How.  Pr. 
355;  Ostrom  v.  Bi.xby,  9  How.  Pr.  57,  215,  217; 
Voorhies'  Code,  p.  177,  note  B. 

"But  if  it  be  true  that  under  a  simple  denial 
in  the  answer  the  defendant  may  give  in  evidence 
any  defense  formerly  admissible  under  the  gen- 
eral issue,  the  provisions  of  §  453,  allowing  sham 
answers  to  be  stricken  out,  would  possess  but  very 
little  practical  utility.  A  simple  denial  could  not 
be  treated  as  a  sham  answer;  and  yet  all  the 
purposes  of  vexation  could  be  as  well  accom- 
plished by  it  as  by  separate  defenses.  So  the 
provisions  of  §  441,  requiring  defenses  to  be  sepa- 
rately stated,  would  be  almost  useless.  As  most 
of  these  new  matters  could  be  given  in  evidence 
under  the  neg^itive  answer,  they  need  not  be  stated 
at  all. 

"Anciently,  in  England,  the  general  issue  was 
seldom  pleaded,  except  when  the  defendant  meant 
wholly  to  deny  the  allegations  of  the  declaration. 
Matters  in  discharge  of  the  action  were  specially 
pleaded.  But  by  acts  of  Parliament  special  mat- 
ter was  allowed  to  be  given  in  evidence,  under 
the  general  issue,  in  certain  cases,  affecting  pub- 
lic otificers.  The  rule  was  gradually  extended  to 
other  cases.  It  was  the  opinion  of  Sir  William 
Blackstone  that  this  relaxation  of  strictness,  an- 
ciently observed,  did  not  produce  the  confusion 
anticipated.  This  supposition  prevailed  for  a  long 
time,  but  subsequent  experience  led  to  a  change 
of  opinion.  The  result  of  this  change  was  the 
adoption  of  the  Reg.  Gen.  Hil.  T.,  4  W.,  p.  4, 
'which  puts  an  end  to  the  misapplication  and  abuse 
of  the  general  issue,  and  compels  a  defendant,  in 
terms,  to  deny  particular  parts  of  the  declaration, 
and  to  plead  specially  every  matter  of  defense,  not 
merelv  consisting  of  denial  of  the  allegations  of 
the  declaration.'  1  Chitty's  Pleading,  pp.  473,  512. 
"These  regulations  restored  the  ancient  rule, 
and  placed  the  science  of  pleading  upon  its  true 
principle.  The  framers  of  the  New  York  code, 
from  which  ours  is  mainly  taken,  would  seem  to 
have  intended  to  accomplish  the  same  result.  It 
has  been  there  held,  and  seems  now  to  be  the 
well-settled  rule,  that  new  matter  must  be  set 
forth  in  the  answer.  Payment,  an  award,  or  a 
former  recovery,  must  be  pleaded.  Calkins  v. 
Packer,  21  Barb.  275;  Brazil  v.  Isham,  12  N.  Y. 
17.  Such  defenses  admit  the  contract  as  alleged, 
but  avoid  it  by  matters  ex  post  facto. 

"The  decisions  of  this  court  have  not  been  uni- 
form upon  this  question.  The  classification  of 
defenses,  under  §  45  of  the  Practice  Act  of  1850, 
was  the  same  as  that  under  J  437  of  our  present 
code.  It  was  held  by  this  court,  in  several  cases, 
that  all  new  matter  must  be  set  up  in  the  answer. 
Ladd  V.  Stevenson,  1  Cal.  18;  Grogan  v.  Ruckle,  1 
Cal.  195;  Walton  v.  Minturn,  1  Cal.  363;  Kendall 
V.  Vallejo,  1  Cal.  372.  But  in  the  ease  of  Gavin 
V.  Annan,  2  Cal.  494,  it  was  held  that  a  general 
denial  has  the  same  influence  as  the  general  issue 
at  common  law,  and,  under  it,  accord  and  satis- 
faction may  bo  shown.  To  the  same  effect  was 
the  decision  in  the  case  of  McLarren  v.  Spalding, 
2  Cal.  510." 

The  general  denial  only  puts  in  issue  averments 
made  in  the  complaint.  New  matter  must  be  spe- 
cially pleaded,  and  must  be  affirmatively  estab- 
lished. Glazer  v.  Clift,  10  Cal.  303.  Where  a 
negative  allegation  is  made,  preceding  an  aver- 
ment by  the  opposite  party  of  the  fact  negatived, 
it  constitutes  the  basis  of  the  issue  joined  by  the 
subsequent  averment,  and  the  matter  traverses  the 
negative  allegation,  and  is  not  new  matter.  Frisch 
V.  Caler,  21  Cal.  71.  As  to  what  is  and  is  not 
new  matter,  see  also  Goddard  v.  Fulton,  21   Cal. 


371 


INSURANCE — EXEMPTION — WHAT  MUST  BE  SET  UP. 


§437a 


430;  Woodworth  v.  Knowlton,  22  Cal.  1G4;  Mul- 
ford  V.  Estudillo,  23  Cal.  94;  Ayres  v.  Beiisley, 
32  Cal.  620;  Cole.s  v.  Soulsby,  21  Cal.  47. 

M'here  the  averments  of  an  answer,  although 
stated  in  an  affirmative  form,  are,  in  effect,  only 
a  denial  of  the  allegations  of  the  oomnlaint,  they 
do  not  constitute  new  matter,  within  the  meaning 
of  our  Practice  Act.  If  the  an.swer,  either  di- 
rectly or  bv  way  of  necessary  implication,  ad- 
mits the  trnth  of  all  the  essential  averments  of 
the  coninlniiif  which  show  a  cause  of  action,  but 
sets  forth  facts  from  which  it  results  that,  not- 
■withstiuulinK  the  truth  of  the  allegations  of  the 
complaint,  no  cause  of  .action  existed  in  the  plain- 
tiff at  the  time  the  action  was  brought,  those  facts 
are  new  matter;  but  if  the  facts  averred  in  the 
answer  only  show  that  some  essential  allegation 
of  the  complaint  is  untrue,  then  they  are  not  new 
matter,  but  only  a  traverse.  And,  generally,  as 
to  new  matter,  see  Goddard  v.  Fulton,  21  Cal. 
430. 

43.  Matter  in  abatement.  Pleas  in  abatement 
are  not  favored,  and  the  party  must  prove  the 
plea  as  pleaded.  Thompson  v.  Lyon,  14  Cal.  39. 
Failure  to  join.  Whitney  v.  Stark,  8  Cal.  514;  68 
Am.  Dec.  360.  Pendency  of  prior  action.  Primm 
V.  Gray,  10  Cal.  522;  Thompson  v.  Lyon,  14  Cal. 
39;  Calaveras  County  v.  Erockway,  30  Cal.  325; 
People  V.  De  la  Guerra,  24  Cal.  73;  O'Connor  v. 
Blake,  29  Cal.  312.  Misjoinder  or  misnomer  of 
parties  defendant.  Warner  \.  \\ilson,  4  Cal.  310; 
Dunn  V.  Tozer,  10  Cal.  170;  Rowe  v.  Bacigalluppi, 
21  Cal.  633.  Change  of  venue.  Tooms  v.  Ran- 
dall, 3  Cal.  438.  Non-presentation  of  claim  to 
administrator.  Hentsch  v.  Porter,  10  Cal.  555. 
Wherever  the  defense  is  that  the  plaintiff  cannot 
maintain  any  action  at  any  time,  it  must  be 
pleaded  in  bar:  but  matter  which  only  defeats  the 
present  proceeding,  and  does  not  show  that  the 
plaintiff  is  forever  concluded,  must  generally  be 
pleaded  in  abatement.  Hentsch  v.  Porter,  10  Cal. 
555.  Want  of  authority  in  the  attorney  of  rec- 
ord to  commence  an  action,  cannot  be  pleaded  in 
abatement.    Turner  v.  Caruthers.   17  Cal.  431. 

44.  Answer  to  enable  court  to  render  cross-judg- 
ment for  defendant  for  value  of  personal  property. 
In  a  suit  to  recover  personal  property,  in  order 
to  enable  the  defendant  to  obtain  the  value  of  the 
property  on  judgment  of  dismissal  against  the 
plaintiff  for  default,  the  answer  must  contain  some 
averment  as  to  the  change  of  possession  from  de- 
fendant to  plaintiff.  The  judgment  of  return  or 
value  is  in  the  nature  of  a  cross-judgment,  and 
must  be  based  upon  proper  averments.  Where 
plaintiff  takes  the  property,  the  defendant  must 
claim  its  return  in  his  answer,  to  enable  the  court 
to  give  the  judgment  in  the  alternative  form. 
Gould  V.  Scannell,  13  Cal,  430. 

45.  Objection  to  pleading,  when  deemed  waived. 
Improper  pleading,  how  cured.  Where  an  equi- 
table estoppel  in  pais  is  not  properly  pleaded,  but 
on  the  trial  evidence  is  introduced  without  ob- 
jection,   in    the    same    manner    as    if    it    had    been 


properly  pleaded,  and  a  verdict  is  rendered  upon 
the  evidence  without  objection,  the  objection  to 
the  pleading  will  be  deemed  waived,  and  the  case 
will  be  considered  as  though  the  estoppel  had  been 
properly  pleaded.  Davis  v.  Davis,  26  Cal.  38; 
85  Am.  Dec.  157.  The  introduction  of  evidence 
without  objectign  in  support  of  it  will  not  cure 
the  omission  of  speciallv  pleading  a  defense. 
Smith  V.  Owens,  21  Cal.  11;  McComb  v.  Reed,  28 
Cal.  281  :  87  Am.  Dec.  1  15. 

46.  Answers  in  justification.  See  Thornburgh 
V.  Hand.  7  Cal.  5.J4 :  Walker  v.  Woods,  15  Cal. 
66;  Glazer  v.  Clift,  10  Cal.  303;  Coles  v.  Soulsby, 
21  Cal.  47,  and  cases  cited;  Killey  v.  Scannell, 
12  Cal.  73;  Lenlz  v.  Victor,  17  Cal.  271;  Knox 
V.  Marshall.  19  Cal.  617;  Pico  v.  Colimas,  32  Cal. 
578;  Towdy  v.  Ellis,  22  Cal.  650;  Richardson  v. 
Smith,  29  Cal.  529;  McComb  v.  Reed,  28  Cal. 
281  :  87  Am.  Dee.  115. 

47.  Pleading  statute  of  limitation.  See  §§  312- 
363,  ante,  and  notes,  and  particularly  §  458,  post. 

48.  Answer  in  ejectment  suit.  For  general  mat- 
ters, see  Hawkins  v.  Reichert,  28  Cal.  534; 
Schenk  v.  Evoy,  24  Cal.  113;  Blankman  v.  Vallejo, 
15  Cal.  638;  Piercy  v.  Sabin,  10  Cal.  22;  70 
Am.  Dec.  692;  Powell  v.  Oullahan,  14  Cal.  114; 
Williams  v.  Young,  17  Cal.  403;  La  Rue  v.  Oppen- 
heimer,  20  Cal.  .517;  Gregory  v.  Haynes,  13  Cal. 
591;  Bodlev  v.  Ferguson,  30  Cal.  511;  Smith  v. 
Doe,  15  Cal.  100;  Marshall  v.  Shafter,  32  Cal. 
176;  Stephens  v.  Mansfield,  11  Cal.  363;  Patter- 
son V.  Ely,  19  Cal.  28;  McGarvey  v.  Little,  15 
Cal.  31;  Guy  v.  Hanly,  21  Cal.  397;  Bell  v. 
Brown,  22  Cal.  671;  Ladd  v.  Stevenson,  1  Cal. 
18;  Moss  v.  Shear,  25  Cal.  44;  85  Am.  Dec.  94; 
Burke  v.  Table  Mountain  Water  Co.,  12  Cal.  403; 
Willson  V.  Cleaveland.  30  Cal.  192;  Busenius  v. 
Coffee,  14  Cal.  91;  Lestrade  v.  Barth.  19  Cal. 
660;  Estrada  v.  Murphy,  19  Cal.  248;  Meador  v. 
Parsons,  19  Cal.  294;  Davis  v.  Davis,  26  Cal.  38; 
85  Am.  Dec.  157;  Downer  v.  Smith,  24  Cal.  124; 
Blum  V.  Robertson,  24  Cal.  146 ;  see,  however, 
§  379,  ante,  which  materially  changes  the  former 
law  as  to  ejectment  cases. 

49.  Stating  fraud  sufficiently  in  answer.  Gushee 
V.  Leavitt,  5  Cal.  IRQ;  63  Am.  Dec.  llfi;  Ward 
V.  Packard,  18  Cal.  391;  Lamott  v.  Butler.  13 
Cal.  32;  Kinney  v.  Osborne,  14  Cal.  112;  King 
V.  Davis,  34  Cal.  100;  People  v.  Board  of  Super- 
visors, 27  Cal.  656. 

50.  Actions  for  divorce.  Conant  v.  Conant,  10 
Cal.  249;  70  Am.  Dec.  717;  Washburn  v.  Wa.sh- 
burn,  9  Cal.  475;  Fox  v.  Fox,  25  Cal.  587;  Ben- 
nett V.  Bennett,  28  Cal.  599. 

51.  Verification  of  inconsistent  answer,  when 
perjury.  Pleadings  will  be  construed  most  strongly 
against  the  pleader.  When  a  fact  which  is  di- 
rectly averred  in  one  part  of  a  verified  pleading 
is  in  another  part  directly  denied,  whether  it  be 
in  the  statement  of  several  causes  of  action  in  a 
complaint  or  of  several  defenses  in  an  answer, 
the  party  verifying  it  is  guilty  of  perjury.  Bell 
V.  Brown,  22  Cal.  671. 


§  437a.  Actions  to  recover  insurance.  What  defendant  claiming  exemp- 
tion must  set  up.  In  an  action  to  recover  upon  a  contract  of  insurance 
wherein  the  defendant  claims  exemption  from  liability  upon  the  ground  that, 
although  the  proximate  cause  of  the  loss  was  a  peril  insured  against,  the 
loss  was  remotely  caused  by  or  would  not  have  occurred  but  for  a  peril 
excepted  in  the  contract  of  insurance,  the  defendant  shall  in  his  answer  set 
forth  and  specify  the  peril  which  was  the  proximate  cause  of  the  loss,  in 
what  manner  the  peril  excepted  contributed  to  the  loss  or  itself  caused  the 
peril  insured  against,  and  if  he  claim  that  the  peril  excepted  caused  the  peril 
insured  against,  he  shall  in  his  answer  set  forth  and  specify  upon  what 
premises  or  at  wdiat  place  the  peril  excepted  caused  the  peril  insured  against. 


Legislation  §  437a. 
p.  836. 


Added    by     Stats.     1907, 


5  438 


ANSWER. 


372 


§438.  When  counterclaim  may  be  set  up.  The  counterclaim  mentioned 
in  the  last  section  [section  four  hiuulred  and  thirty-seven]  must  be  one  exist- 
ing in  favor  of  a  defendant  and  against  a  plaintiff,  between  whom  a  several 
judgment  might  be  had  in  the  action,  and  arising  out  of  one  of  the  follow- 
ing causes  of  action : 

1.  A  cause  of  action  arising  out  of  the  transaction  set  forth  in  the  com- 
plaint as  the  foundation  of  the  plaintiff's  claim,  or  connected  with  the  sub- 
ject of  the  action ; 

2.  In  an  action  arising  upon  contract;  any  other  cause  of  action  arising 
also  upon  contract  and  existing  at  the  commencement  of  the  action. 

Dismissing   action,   where   counterclaim.     Post,        or  setoff  are  averred.    St.  Louis  Nat.  Bank 

V.  Gay,  101  Cal.  2S6;  35  Pac.  876.  A  coun- 
terclaim must  in  some  way  qualify  or  de- 
feat the  judgment  to  which  the  plaintiff  is 
otherwise  entitled;  in  a  foreclosure  suit,  a 
defendant  who  is  personally  liable  for  the 
debt,  or  whose  land  is  bound  by  the  lien,, 
may  properly  introduce  an  offset;  but 
where  his  personal  liability  is  not  in  ques- 
tion, and  where  he  disclaims  all  interest  in 
the  mortgaged  premises,  he  cannot  counter- 
claim against  the  plaintiff  on  a  note,  bond, 
or  covenant.  Meyer  v.  Quiggle,  140  Cal. 
495;  74  Pac.  40.  To  require  a  finding  upon 
any  affirmative  matter  urged  to  a  counter- 
claim, it  must  constitute  a  defense  thereto,, 
and  be  supi^orted  by  some  evidence.  L. 
Scatena  &  Co.  v.  Van  Loben  Sels,  19  Cal. 
App.  423;  126  Pac.  187.  A  demand  that 
does  not  conform  to  the  provisions  of  this, 
section  is  not  available  as  a  counterclaim. 
Harron  v.  Wilson,  4  Cal.  App.  488;  88  Pac. 
512.  Cross-demands  against  the  estate  of 
a  deceased  jierson,  are  ineffectual  as  coun- 
terclaims, if  they  are  barred  by  the  statute- 
of  limitations,  and  were  not  presented  to- 
the  ])ersonal  representative  of  the  deceased.. 
C.  Moore  v.  Gould,  151  Cal.  723;  91  Pac. 
616. 

How  pleaded.  A  counterclaim  must  be 
denoininated  as  such  in  the  answer,  in  or- 
der to  be  effective  (Carpenter  v.  Hewel,  67 
Cal.  5S9;  8  Pac.  314;  Brannan  v.  Paty,  58 
Cal.  330)  and  where  affirmative  matter  is 
designated  a  counterclaim,  the  defendant, 
cannot,  after  the  trial,  treat  the  same  as  a 
cross-complaint,  and  take  judgment  on  that 
theory.  McAbee  v.  Randall,  41  Cal.  136. 
The  form  in  which  the  plaintiff  sets  out  his 
cause  of  action  is  not  conclusive  upon  the- 
right  of  the  defendant  to  set  forth  his 
counterclaim  in  his  answer;  but  if  other 
facts  in  the  same  transaction  are  so  con- 
nected with  those  set  forth  in  the  com- 
plaint as  to  defeat  their  legal  effect,  the 
defendant  may  set  them  up,  regardless  of 
the  form  which  the  plaintiff  may  have 
chosen  for  jiresenting  his  own  side  of  the 
ease.  Storv  &  Isliam  Commercial  Co.  v. 
Story,  lOO'  Cal.  30;  34  Pac.  671.  New- 
matter  constituting  a  counterclaim  is 
deemed  controverted  by  the  plaintiff,  and 
the  burden  of  proof  is  on  the  defendant. 
Herold  v.  Smith,  34  Cal.  122. 

Must  exist  in  favor  of  defendant  and 
against  plaintiff.     The  test  is  very  simple 


§  581. 

Omission  to  set  up  counterclaim  prevents  future 
actiou  thereon.     Post,  §  439. 

Compensated,     cross-demands     deemed.      Post. 

§  440. 

Legislation  §  438.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  47  (Ne-vv  York  Code, 
§  150),  as  amended  by  Stats.  1860,  p.  299,  -which 
read:  "The  county  [counterjclaim  mentioned  in 
the  last  section  shall  be  one  existing  in  favor 
of  the  defendant  or  plaintiff,  and  against  a 
plaintiff  or  defendant,  between  whom  a  several 
judgment  might  be  had  in  the  action  and  arising 
out  of  one  of  the  following  causes  of  action: 
1.  A  cause  of  action  arising  out  of  the  trans- 
action set  forth  in  the  complaint  or  answer,  as 
the  foundation  of  the  plaintiff's  claim,  or  defend- 
ant's defense,  or  connected  with  the  subject  of 
the  action.  2.  In  an  action  arising  upon  con- 
tract; any  other  cause  of  action  arising  also 
upon  contract  and  existing  at  the  commencement 
of  the   action." 

Counterclaim,  defined.  This  section  de- 
fines what  a  counterclaim  is,  as  well  as 
when  it  may  be  jdeaded;  it  practically  says 
that  a  counterclaim  is  defined  to  be  what 
the  section  says  may  be  pleaded  as  such. 
Ainsworth  v.  Bank  of  California,  119  Cal. 
470;  63  Am.  St.  Ptep.  135;  39  L.  E.  A.  686; 
51  Pac.  952.  To  constitute  a  counterclaim, 
the  facts  must  be  such  as  would  entitle  the 
defendant  to  relief  against  the  plaintiff  in 
a  separate  action;  the  subject-matter  of 
the  answer  may  be  a  good  defense  to  the 
action,  but  it  is  not  a  counterclaim,  un- 
less the  defendant  can  recover  judgment 
thereon  in  an  independent  action.  Belleau 
v.  Thompson,  33  Cal.  495.  The  term  "coun- 
terclaim" is  broader  in  its  scope  and  mean- 
ing than  "set-off,"  and  includes  not  only 
demands  which  are  the  subject  of  set-off 
and  recouj)ment,  but  also  equitable  de- 
mands; a  set-off,  prior  to  the  code,  could, 
in  most  of  the  states,  only  be  interposed 
where  the  demand  was  certain,  or  capable 
of  being  nia<le  certain  by  calculation,  and 
could  not  be  sustained  for  unliquidated 
(iamages  in  a  court  of  law.  Roberts  v. 
Donovan,  70  Cal.  108;  9  Pac.  180;  11  Pac. 
599.  The  term  "set-off"  differs  from  "re- 
coupment," in  that  it  is  more  i)roj)erly 
applicable  to  demands  indejicudcnt  in  their 
nature  and  origin,  while  "recoupment" 
simidy  implies  a  cutting  down  of  a  demand 
by  deduf'tions  arising  out  of  the  same 
transaction;  and  "counterclaim,"  as  used  in 
the  code,  includes  both  recoupment  and  set- 
off, and  is,  strictly  speaking,  a  i)leading  by 
which   matters  arising  out   of   recoupment 


373 


COUNTERCLAIM — MATTER  CONSTITUTING. 


§438 


by  which  it  may  be  (leterinined  what  is  a 
proper  subject  of  couuterclaiin:  it  must  be 
a  claim  existing,  aii'i  constituting  a  right 
of  action,  in  favor  of  the  defendant  ami 
against  the  plaintiff  at  the  time  of  the  com- 
mencement of  the  action.  Chase  v.  E'voy, 
58  Cal.  348.  A  judgment  against  parties 
alleged  to  be  beneficially  interested  in  a 
claim  sued  upon  is  not  the  subject  of  a 
counterclaim;  and  the  fact  that  such  par- 
ties are  insolvent  does  not  change  the  rule. 
Duff  V.  Hobbs,  19  Cal.  (340.  In  an  action 
by  an  administrator  on  a  promissory  note, 
the  defendant  cannot  counterclaim  his 
alleged  share  in  an  indebtedness  of  the  de- 
cedent to  a  corporation  formed  by  them  as 
partners,  for  which  alleged  indebtedness  no 
claim  was  ])resented  against  the  estate. 
Eeed  v.  Johnson,  127  Cal.  538;  59  Pae.  986. 
In  an  action  against  an  administrator  on 
■a  promissory  note,  where  the  defendant 
alleged  in  his  answer  that  his  intestate 
signed  the  note  for  the  accommodation  of 
a  co-maker,  and  that,  prior  to  the  com- 
mencement of  the  action,  the  plaintiff  was 
indebted  to  such  co-maker,  and  such  co- 
maker assigned  said  indebtedness,  after 
the  death  of  the  intestate,  to  another  of 
the  co-makers  for  the  benefit  of  the  latter 
and  of  the  intestate,  the  facts  stated  do 
not  constitute  a  counterclaim.  Chase  v. 
Evoy,  58  Cal.  348.  A  surety  cannot  set  up 
a  counterclaim  existing  in  favor  of  his 
principal;  nor  can  a  counterclaim  against 
the  plaintiff  and  another  person  be  set  up; 
nor  one  in  favor  of  the  defendant  and  a 
stranger  to  the  action;  nor  one  in  favor  of 
another  person:  the  test  being,  whether  the 
defendant  could  maintain  an  independent 
action  on  the  demand.  Eoberts  v.  Donovan, 
70  Cal.  108;  9  Pac.  180;  11  Pac.  599;  Chase 
V.  Evoy,  58  Cal.  340;  Stockton  Rav.  &  L. 
Soc.  V.  Giddings,  96  Cal.  84;  30  Pac.  1016. 
Where  three  defendants  are  sueil  on  a  joint 
Isond,  the  counterclaim  of  one  aeainst  the 
plaintiff  cannot  be  interposed.  Roberts  v. 
Donovan,  70  Cal.  108;  9  Pac.  180;  11  Pac. 
599.  The  counterclaim  of  one  defendant 
cannot  be  interposed  in  an  action  against 
two  or  more.  McDonald  v.  Poole,  113  Cal. 
437;  45  Pac.  702. 

Demands  must  be  reciprocal.  The  rights 
of  several  parties  to  ])]ead  a  counterclaim 
in  defense  to  an  action  by  one  against  the 
others,  for  a  breach  of  their  respective 
obligations  arising  out  of  the  facts  in  fon- 
troversy  are  reciprocal;  the  entire  transac- 
tion, and  the  rights  resulting  therefrom, 
are  to  be  determined  by  the  court.  Story 
&  Isham  Commercial  Co.  v.  Story.  100  Cal. 
30;  34  Pac.  671.  A  surety  on  a  note  given 
for  the  purchase  price  of  ])roperty,  cannot 
set  up  as  a  counterclaim  the  breach  of  the 
contract  of  warranty,  not  being  a  party 
-to  it.  Stockton  Sav.  &  L.  Soc.  v.  Giddings, 
96  Cal.  84;  31  Am.  St.  Rep.  181;  21  L.  R.  A. 
406;  30  Pac.  1016-. 

Partnership  demands.  A  defendant  can- 
not set  up  a  counterclaim  against  the 
•plaintiff  and  several  other  persons  as   co- 


partners. Wood  V.  Brush,  72  Cal.  224;  13 
I'ac.  627.  In  an  action  for  breaidi  of  a 
covenant  to  indemnify  the  plaintiff"  against 
liabilities,  the  defendant  cannot  set  up,  as 
a  counterclaim,  demands  whicdi  were  mat- 
ters of  {iartnership  between  the  parties. 
Haskell  v.  Moore,  29  Cal.  437.  in  an  ac- 
tion for  goods  sold  ami  delivered,  j)artuer- 
ship  claims,  unadjusted,  which  may  be  the 
subject  of  an  accounting,  do  not  constitute 
proper  counterclaim.  Lane  v.  Turner,  114 
Cal.  396;  46  Pac.  290. 

Counterclaim  arising  out  of  transaction 
set  forth  in  the  complaint.  A  matter  that 
docs  not  arise  out  of  the  transaction  set 
forth  in  the  coiii()]aint,  and  which  is  not 
the  subject  of  the  action,  does  not  consti- 
tute a  counterclaim.  James  v.  Center,  53 
Cal.  31;  Ilarron  v.  Wilson,  4  Cal.  App.  488; 
88  Pac.  512.  A  contract  is  a  transaction, 
but  a  transaction  is  not  necessarily  a  con- 
tract. Roberts  v.  Donovan,  70  Cal.  108;  9 
Pac.  180;  11  Pac.  599.  In  ejec.tment,  where 
the  defendant,  after  denying  the  owner- 
ship of  the  plaintiff  and  averring  title  in 
himself,  sets  up  a  lease  to  the  plaintiff  from 
himself,  and  claims  thereunder  rent  for  use 
and  occupation,  no  matters  arising  out  of 
the  transaction  or  connected  with  the  sub- 
ject of  the  action  being  alleged,  a  proper 
counterclaim  is  not  stated.  Carpenter  v. 
Hewel,  67  Cal.  589;  8  Pac.  314.  A  counter- 
claim for  indebtedness  due  cannot  be  set  up 
in  a  proceeding  in  unlawful  detainer  (Kelly 
V.  Teague,  63  Cal.  68),  as  neither  a  counter- 
claim or  cross-complaint  is  jiermissil>le  in 
such  actions.  Knight  v.  Black,  19  Cal. 
App.  518;  126  Pae.  512.  In  an  action 
to  foreclose  a  mortgage,  an  averment  of 
the  answer,  that  after  the  e.xecution 
thereof,  the  defendant  sold  the  plain ti.ff  an 
interest  in  certain  property  as  jiart  of  the 
consideration  for  the  cancellation  of  the 
mortgage,  is  a  valid  counterclaim.  Rich- 
mond V.  Lattin,  64  Cal.  273;  30  Pac.  818. 
In  an  action  by  a  lessee  against  the  lessor 
for  the  foreclosure  of  a  mortgage,  rent  due 
from  the  lessee  to  the  lessor  need  not  be 
set  up  as  a  counterclaim,  and  the  failure 
so  to  set  it  up  is  not  a  waiver,  there  being 
no  connection  between  the  note  and  th-^ 
mortgage  and  the  lease  of  the  promises, 
which  were  separate  and  distinct  contracts. 
Brosnan  v.  Kramer,  135  Cal.  36;  66  Pac. 
979.  In  an  action  founded  on  tort,  the 
facts  may  be  of  such  character  that  a 
counterclaim  or  cross-complaint  wdll  lie.  on 
the  theory  that  the  tort  is  a  transaction 
(Glide  v.  Kayser,  142  Cal.  419;  76  Pac.  50; 
and  see  Meyer  v.  Quiggle,  140  Cal.  495;  74 
Pac.  40) ;  but  a  counterclaim  or  cross-com- 
plaint, founded  on  damages  to  real  prop- 
erty, cannot  be  properly  pleaded  to  a 
complaint  for  the  recovery  of  personal 
property.  Glide  v.  Kayser,  142  Cal.  419;  76 
Pac.  50.  In  an  action  to  quiet  title,  de- 
mand for  damages  for  breach  of  a  contract 
is  not  a  proper  subject  of  counterclaim, 
where  it  does  not  arise  out  of  any  trans- 
action   set    forth    in    the    complaint    as    a 


§438 


ANSWER. 


374 


foundation  of  the  plaintiff's  claim,  nor  have 
anv  connection  with  the  land.  Meyer  v. 
Quiggle,  140  Cal.  495;  74  Pac.  40.  In  an 
action  to  quiet  title  brought  by  one  in 
possession,  the  answer  of  the  defendant, 
stating  facts  essential  to  a  complaint  in 
ejectment,  and  demanding  possession  of  the 
premises,  does  not  constitute  a  counter- 
claim. Moyle  V.  Porter,  51  Cal.  639.  In 
an  action  to  foreclose  a  street  assessment, 
the  defendant  cannot  set  up  a  counterclaim 
for  damages  to  the  land  in  the  jirosecution 
of  the  work.  Engebretsen  v.  Gay,  158 
Cal.  27;  109  Pac.  879.  In  an  action  for 
services  in  making  an  abstract  of  title,  the 
claim  of  the  defendant,  that,  as  the  ab- 
stract was  not  made  in  time,  he  thereby 
suffered  damages  through  the  loss  of  a  con- 
tingent real  estate  investment,  cannot  be 
set  up  as  a  counterclaim.  Pendleton  v. 
Cline,  85  Cal.  142;  24  Pac.  659.  In  an  ac- 
tion for  the  balance  due  on  a  note  secured 
by  pledge,  after  sale  thereof,  a  counter- 
claim cannot  be  set  up  for  damages  occa- 
sioned by  negligence  in  the  use  of  the 
pledge,  where  the  defendant  consented  to 
such  use.  Damon  v.  Waldteufel,  99  Cal. 
234;  33  Pac.  9C3.  In  an  action  on  a  prom- 
issory note,  the  defendant  may  allege  that 
ue  is  an  indorser  for  accommodation  only, 
and  that  no  demand  for  payment  was  made 
on  the  maker,  or  notice  of  dishonor,  etc., 
given  him  as  an  indorser;  but  he  cannot 
set  up  the  same  as  a  counterclaim,  praying 
it  to  be  adjudged  that  he  is  in  no  wise  in- 
debted or  liable  to  the  plaintiff  on  the 
note.  Belleau  v.  Thompson,  33  Cal.  495.  In 
a  proceeding  by  an  heir  to  procure  the  pay- 
ment of  an  allowed  claim,  the  claim  of  the 
executor  that  the  claimant  be  charged  with 
the  value  of  the  use  and  occupation  of 
property  of  the  estate  in  his  possession,  is 
properly  a  counterclaim,  and  must  be  set 
up  by  pleading.  Estate  of  Couts,  100  Cal. 
400;  34  Pac.  865.  In  an  action  to  recover 
money  claimed  to  be  due,  the  value  of  the 
use  and  occupation  of  premises  held  by  the 
plaintiff  under  a  third  party,  by  title  ad- 
verse to  the  defendant,  cannot  be  set  up  as 
a  counterclaim.  Quinn  v.  Smith,  49  Cal. 
163.  In  an  action  for  the  restitution  of 
money  received  by  virtue  of  a  judgment 
of  foreclosure,  reversed  as  to  some  prop- 
erty included  in  the  mortgage,  but  finally 
affirmed  as  to  all  the  other  property,  a  de- 
ficiency judgment  is  a  proper  subject  of 
counterclaim.  Dowdell  v.  Carpy,  137  Cal. 
333;  70  Pac.  167.  In  an  action  upon  a 
money  demand,  founded  upon  a  contract, 
the  defendant  cannot  file  a  counterclaim  or 
cross-complaint  setting  up  a  mere  naked 
trespass  on  his  property  after  the  com- 
mencement of  the  action.  Wausrenheim  v. 
Graham,  39  Cal.  169.  Where  collaterals  are 
lost  throujih  the  negligence  of  the  pledgee, 
he  is  answerable  for  the  loss,  and  the 
pledgor  may  set  up  a  counterclaim  for  the 
loss,  in  an  action  uj)on  the  prinfipnl  debt. 
Hawlev  P.ros.  Fl;ir<hvare  Co.' v.  Brownstone 
123  Cal.  643;  .56  Pac.  46S.     Where,  in  prac- 


tice, the  rebates  of  half  the  commissions 
on  shipments  made  by  the  defendant  to 
the  plaintiff  were  i^aid  at  the  end  of  each 
year,  only  such  rebates  on  commissions  due 
at  the  end  of  any  year  which  exjiires  be- 
fore the  commencement  of  the  action  are 
the  projDer  subject  of  a  counterclaim.. 
L.  Scatena  &  Co.  v.  Van  Lobeu  Sols,  19> 
Cal.  App.  423;  126  Pac.  187. 

Action  arising  upon  contract.  Where 
the  claim  of  the  plaintiff  arises  on  con- 
tract, the  defendant  may  counterclaim  any 
cause  arising  upon  a  contract  that  existed 
at  the  commencement  of  the  action.  Stod- 
dard v.  Treadwell,  26  Cal.  294.  While  a 
counterclaim  sounding  in  tort  cannot  be 
set  up  as  a  defense  to  an  action  arising  upon 
contract,  yet  a  promise  to  pay  damages  for 
an  injury  resulting  from  tort  is  a  matter 
arising  upon  contract,  and,  as  such,  may 
be  pleaded  as  a  counterclaim  to  an  action 
founded  ujion  contract.  Poly  v.  Williams, 
101  Cal.  648;  36  Pac.  102.  An  action  for 
the  breach  of  a  contract  to  deliver  mer- 
chandise is  an  action  arising  upon  contract, 
and  a  counterclaim  may  be  set  up  by  the- 
defendant  therein  for  goods  sold  and  de- 
livered. Davis  v.  Hurgren,  125  Cal.  4S;  57 
Pac.  684.  In  an  action  upon  an  original 
contract,  a  substituted  contract,  supersed- 
ing the  original,  cannot  be  pleaded  as  a. 
counterclaim,  under  the  first  subdivision  of 
this  section;  but,  the  facts  showing  a  cause 
of  action  in  favor  of  the  defendant,  and 
it  being  a  different  contract  from  that 
described  in  the  complaint,  it  may  be  prop- 
erly pleaded  under  the  second  subdivis- 
ion. Griswold  v.  Pieratt,  110  Cal.  259,  42 
Pac.  820.  Where  money  advanced  to  a 
mortgagee  by  a  mortgagor,  with  interest, 
thereon,  is  to  be  applied  in  payment  of  a. 
mortgage  if  a  survey  of  the  mortgaged, 
property  is  confirmed,  but  is  to  be  returned 
with  interest  if  not  confirmed,  there  can 
be  no  counterclaim  for  further  interest,  in 
a  proceeding  to  foreclose  the  mortgage,, 
after  the  payments  and  the  interest  thereon 
amount  to  the  sum  of  the  mortgage  debt,, 
and  the  survey  is  confirmed.  Coleman  v.. 
Commins,  77  Cal.  548;  20  Pac.  77.  In  an 
action  by  a  vendor  to  foreclose  agreements 
for  the  sale  of  land,  the  vendee  is  entitled 
to  set  up,  as  a  counterclaim,  an  indebted- 
ness due  him  from  the  vendor,  under  a: 
contract,  entered  into  subsequently  to  the- 
breach  of  the  agreement  sued  on,  whereby 
the  vendor  agreed  to  purchase  his  equitable- 
interest  in  the  land,  and  to  enforce  a  ven- 
dor's lien  therefor.  Eogers  Development 
Co.  v.  Southern  California  Real  Estate  Inv. 
Co.,  159  Cal.  735;  35  L.  R.  A.  (N.  S.)  543; 
115  Pac.  934.  In  an  action  founded  on 
contract,  the  defendant  may  set  up,  by 
way  of  counterclaim,  a  cause  of  action,  in 
his  favor,  against  the  plaintiff,  for  a  bal- 
ance due  on  an  open  mutual  and  current 
account.  Lindsay  v.  Stewart,  72  Cal.  540;^ 
14  Pac.  516.  In  an  action  by  an  adminis- 
trator to  recover  a  mortgage  debt  due  the- 
estate,   promissory  notes,   assigned   before 


375 


COUNTERCLAIJI — AMOUNT— STATUTE  OF  LIMITATIONS. 


§438 


maturity,  may  be  set  up  as  a  counterclaim 
by  the  assignee,  although  uot  presented  for 
allowance,  if  action  could  be  maintained 
on  them  at  the  commencement  of  the  fore- 
closure suit;  but  if  the  notes  were  assigned 
after  maturity,  the  assignee  takes  them 
subject  to  all  existing  erpiitics  between  the 
maker  and  the  payee,  and  they  cannot  be 
the  subject  of  a  counter(daim,  but  must  he 
set  up  as  an  equitable  defense.  Lyon  v. 
Petty,  U5  Cal.  :V22;  4  Pac.  103.  In  an  ac- 
tion by  a  guarantor  of  rent,  to  have  it  de- 
creed what  amount  was  due  and  un])aid, 
the  lessor  may  set  up,  by  way  of  counter- 
claim, the  contract  of  guaranty  and  the 
amount  due  thereunder,  and  seek  judgment 
therefor  against  the  plaintiff  (McDougald 
V.  llulet,  132  Cal.  151;  61  Pac.  278);  and 
a  prayer  for  general  relief  is  a  sufficient 
foundation  for  any  relief  appropriate  to  the 
facts  stated.  Rogers  Development  Co.  v. 
Southern  California  etc.  Inv.  Co.,  159  Cal. 
735;  115  Pac.  934.  In  an  action  for  moneys 
deposited  with  the  plaintiff,  a  note  secured 
by  a  mortgage  cannot  be  set  up  as  a  coun- 
terclaim or  set-off.  McKean  v.  German- 
American  Sav.  Bank,  118  Cal.  334;  50  Pac. 
65fi. 

Amount  of  counterclaim.  Under  the  first 
subdivision,  the  amount  of  the  counter- 
claim is  of  no  jurisdictional  moment.  Gris- 
wold  V.  Pierat't,  110  Cal.  259;  42  Pac.  820. 
In  an  action  on  a  contract,  another  cause 
of  action  on  a  contract,  in  favor  of  the  de- 
fendant, may  be  set  up  as  a  counterclaim, 
although  it  does  not  amount  to  three  hun- 
dred dollars.  Freeman  v.  Seitz,  126  Cal. 
291;  58  Pac.  690.  A  counterclaim  or  set-off 
of  less  than  three  hundred  dollars,  in  an 
action  in  the  superior  court,  pleaded  as 
defensive  matter,  can  be  properly  enter- 
tained, and  is  as  much  a  matter  of  defense 
as  w^ould  be  the  plea  of  the  payment  of  a 
like  sum.  Freeman  v.  Seitz,  126  Cal.  291; 
58  Pac.  690.  An  action  in  a  justice's  court 
may  be  restrained,  where  the  defendant 
has  a  counterclaim  for  more  than  three 
hundred  dollars,  arising  out  of  the  transac- 
tion upon  which  the  claim  is  founded,  and 
neither  party  can  secure  adequate  relief 
without  having  the  subject  of  the  counter- 
claim passed  upon.  Gregorv  v.  Diggs,  113 
Cal.  196;  45  Pac.  261. 

Complaint  suspends  limitations  on  coun- 
terclaim. The  filing  of  the  original  com- 
plaint operates  to  suspend  the  statute  of 
limitations  as  to  a  demand  which  is  the 
subject  of  a  counterclaim  (McDougald  v. 
Huiet,  132  Cal.  154;  64  Pac.  278),  if  it  was 
not  then  barred,  though,  if  standing  alone, 
the  statute  would  run  against  it  before  the 
answer  is  filed.  Perkins  v.  West  Coast 
Lumber  Co.,  120  Cal.  27;  52  Pac.  118. 

Scope  and  office  of  counterclaim  under  the  code. 
See  note  89  Am.  Dee.  4S2. 

CODE  COMMISSIONERS' NOTE.  1.  Counter- 
claim, evidence  of.  Loss  of  profits  as  a  counter- 
claim. Unliquidated  damages  as  counterclaim. 
Counterclaim,  when  not  set  up  in  answer,  evi- 
dence thereof,  etc.  In  Stoddard  v.  Treadwell,  26 
Cal.  303-309,  Justice  Shaffer,  in  a  very  elaborate 


oiiini.in    upon    these   subjects   says    fthe   code   com- 
missioners  (luote    si.x    pages    thori'from]. 

2.  When  set-off  is  allowed,  and  what  set-off 
may  consist  oi.  A  decree,  reiulered  in  an  action 
on  a  l)on(l.  and  to  foreclose  a  mortgaKe  as  secu- 
rity therefor,  v.liieh,  after  reciting  the  amount 
found  due  on  the  bond,  directed  that  the  mort- 
frased  premises  be  sold,  and  out  of  the  proceeds, 
the  costs  and  the  amount  found  due  on  the  bond 
and  accruing  interest  be  paid,  and  the  sheriff  pay 
such  surplus  into  court,  but  that  if  the  proceeds 
were  insufficient  to  pay  the  debt,  interest,  and 
costs,  the  sheriff  should  report  tlie  amount  of  such 
defirieney  or  balance,  and  the  plaintiff  have  exe- 
eiili<in  ajrainst  the  defendants  for  the  deficiency, 
merecs  the  original  debt  in  such  judgment,  so  far 
as  to  make  it  a  certain  and  liquidated  demand, 
e.\isting  at  the  date  when  the  amount  of  balance 
was  ascertained  by  the  sheriff,  sufficient  as  a 
foundation  of  a  right  of  action  or  setoff.  A  cestui 
que  trust,  who  is  insolvent,  cannot,  in  equity,  en- 
force and  collect,  through  his  trustee,  a  judgment 
against  a  party  who  holds  a  just  and  valid  de- 
mand against  the  cestui  que  trust,  which  he  has 
no  means  of  enforcing  or  collecting  if  a  set-off  is 
denied;  and  it.  is  unnecessary  thai  the  demand 
sought  to  be  used  as  a  set-off  should  be  in  the 
form  of  a  personal  judgment.  Ilobbs  v.  Duff,  23 
Cal.  .t96.  The  next  position  is,  that  the  rules  of 
set-off  are  the  same  in  equity  as  at  law.  It  is 
true  that  courts  of  law  and  equity  follow  the  same 
general  doctrines  on  the  subject  of  set-off;  but 
where  some  equity  intervenes,  independent  of  the 
fact  of  mutual  unconnected  debts,  courts  of  equity 
will  take  jurisdiction,  and  determine  the  matter 
upon  the  principles  of  natural  equity.  And  when 
the  law  could  not  give  a  proper  remedy,  as  in  the 
ease  of  the  insolvency  of  one  of  the  parties,  equity 
will  atford  relief.  Barbour  on  Set-off,  p.  190; 
Lindsay  v.  Jackson,  2  Paige,  581.  The  demands 
in  this  case  are  judgments,  and  the  aid  of  a  court 
of  equity  is  invoked  because  the  defendants  iu 
one  of  the  judgments  are  insolvent,  and  the  plain- 
tiff in  the  other  is  not  the  real  party  in  interest, 
but  a  trustee  for  the  insolvent  defendants  in  the 
other  judgments.  Each  of  these  facts  forms  a 
ground  for  applying  to  a  court  of  equity,  and  en- 
titles the  pjaintiffs  to  equitable  relief.  On  a  com- 
plaint filed  to  set  off  one  judgment  or  decree 
against  another,  the  jurisdiction  of  a  court  of 
chancery  is  more  extensive  than  that  of  common- 
law  courts.  In  equity,  a  set-off  in  such  cases  is 
a  matter  of  right,  and  not  of  discretion,  and  it 
depends,  not  upon  the  statutes  of  set-off,  but  upon 
the  e(|uitable  jurisdiction  of  the  court  over  its 
suitors.  Barbour  on  Set-off,  p.  194.  And  the 
set-off  will  be  allowed  as  between  the  real  par- 
ties in  interest,  regardless  of  a  nominal  party. 
O'Connor  v.  Murphy,  1  H.  Bl.  657.  A  person  wlio 
holds  a  claim  as  a  trustee  cannot  have  it  set  otlf 
against  a  demand  due  from  him  in  his  own  right. 
Fair  v.  Mclver,  16  East,  130.  And  upon  the  same 
principle,  we  think  it  clear  th.Tt  a  set-off  should 
be  made  in  equity  as  between  the  real  parties  in 
interest,  even  though  one  of  the  judgments  is  in 
the  name  of  a  trustee,  who  holds  for  the  use  and 
benefit  of  such  real  parties.  Wolf  v.  Beales.  6 
Berg.  &  R.  242:  9  Am.  Dec.  425;  Barbour  on 
.Setoff,  pp.  16,  71-73.  In  other  words,  the  court 
will  decree  a  sot-off  as  between  the  real  owners 
or  persons  beneficially  interested  in  the  several 
demands.  Russell  v.  Conway,  11  Cal.  93.  An- 
other position  taken  by  the  appellants  is,  that 
Fisher  should  have  pleaded  the  balance  due  on 
the  judgment  of  foreclosure,  as  a  set-off  against 
the  damages  in  the  action  brought  by  Wm.  R. 
Duff  against  him  and  the  Knoxes  for  a  specific 
performance;  and  not  having  done  so,  the  plain- 
tiffs clain;ing  under  him  are  estopped  or  barred 
from  maintaining  this  action.  If  he  had  so 
pleaded  it  in  that  suit,  it  would  probably  have 
been  held  that  the  court  could  not  entertain  the 
defense  or  allow  the  set-off  in  that  action,  on  the 
same  grounds  that  it  was  ruled  nut  in  the  subse- 
quent action  of  Duff  v.  Hobbs,  19  Cal.  646.  But, 
independent  of  that,  it  is  clear  that  a  party  does 
not  lose  his  right  to  bring  a  separate  action  for 
a  demand  which  he  might  have  pleaded  as  b  set- 


§439 


ANSWER. 


376 


off  but  neglected  to  do.  Barbour  on  Set-off,  p.  21, 
Ho'bbs  V.  Duff.  23  Ca!.  628. 

3.  Offsets.  What  may  be.  Action  on  an  ap- 
peal bond,  in  which  defendants  claim  the  right  to 
offset  the  balance  of  a  decree  in  a  foreclosure  suit, 
which  they  have  purchased  and  now  hold  against 
D.  and  r!,  and  eleven  other  defendants  in  that 
suit,  upon  the  ground  that  D.  and  R.  are  the  par- 
ties beneficially  interested  in  the  claim  in  suit  in 
this  action,  and  that  they  and  the  other  eleven 
defendants  in  the  decree  sought  to  be  offset  are 
insolvent.  It  was  decided  that  the  set-off  cannot 
be  allowed,  as  well  because  of  the  provisions  of 
this  section,  which  requires  a  counterclaim  to  be 
between  parties  to  the  record,  between  whom  a 
several  judgment  might  be  had  in  the  action,  as 
of  the  provisions  of  S§  626  and  666,  post,  which 
would  require  a  judgment  for  the  excess  to  be 
_given  against  the  plaintiff,  although,  as  against 
him,  it  is  not  claimed  that  defendants  have  any 
demand.  The  matter  set  up  in  the  answer  is  not 
a  defense,  legal  or  equitable,  in  any  other  sense 
than  as  being  purely  an  offset,  and,  therefore, 
such  matter  cannot  be  relied  on  as  an  equitable 
defense  independent  of,  and  beyond  the  right  of, 
offset  given  by  the  code.  Duff  v.  Hobbs,  19  Cal. 
646,  commenting  on,  and  in  some  particulars  dis- 
approving, Naglee  v.  Palmer,  7  Cal.  543,  and  Rus- 
sell v.  Conway,  11  Cal.  93,  and  citing  as  authority 
the  cases  of  Wheeler  v.  Raymond,  5  Cow.  231 ; 
Warner  v.  Barker,  3  Wend.  400;  Spencer  v.  Bab- 
cock,  22  Barb.  326;  Ferreira  v.  Depew,  4  Abb. 
Pr.  131. 

i.  What  constitutes  an  offset.  A  claim,  to  con- 
stitute a  set-off,  must  be  such  that  the  party 
pleading  it  could  obtain  a  several  judgment  upon 
it;  and  a  joint  debt  cannot  be  made  a  set-off 
against  a  several  one.  To  justify  the  allowance 
of  a  set-off  of  joint  debt  due  from  plaintiff,  and 
another  against  the  individual  claim  of  plaintiff, 
upon  equitable  grounds,  besides  showing  that  the 
joint  debtors  owe  a  considerable  amount,  and  that 
their  property  is  encumbered  by  judgments,  mort- 
gages, and  attachments,  it  must  also  be  shown 
that  they  are  insolvent,  or  that  the  defendants  are 
in  danger  of  losing  their  demand.  Howard  v. 
Shores,  20  Cal.  277. 

5.  Damages  for  breach  of  contract  as  a  coun- 
terclaim. If  plaintiff  asks,  in  his  complaint,  for 
damages  for  the  breach,  on  the  part*  of  the  de- 
fendant, of  a  written  contract  between  the  parties, 
the  defendant  may  interpose  in  his  answer  a 
counterclaim  for  damages  for  a  breach  of  the  con- 
tract by  plaintiffs.    Dennis  v.  Belt,  30  Cal.  247. 

6.  Counterclaim  defined.  A  counterclaim  is  a 
cause  of  action  in  favor  of  the  defendant,  upon 
which  he  might  have  sued  the  plaintiff  and  ob- 
tained affirmative  relief,  in  a  separate  action.  Bel- 
leau  V.  Thompson,  33  Cal.  495. 

7.  A  joint  claim  by  two  persons  must  not  be  set 
up  as  a  counterclaim  by  the  defendant,  but  he  may 
amend  and  aver  that  the  whole  interest  therein 
had  been  transferred  lb  him.  Stearns  v.  Martin, 
4  Cal.  229;  but  if  the  legal  and  equitable  liabili- 
ties on  claims  of  money  become  vested  in  or  may 
be  urged  against  one,  they  may  be  set  off  against 
separate    demands,    and    vice    versa.      Russell    v. 


Conway,   11   Cal.   101;   Collins  v.  Butler,   14   Cal. 
223. 

8.  What  is  necessary  to  constitute  set-off  at  law. 
To  authorize  a  set-off  at  law,  the  debts  must  be 
between  the  parties  in  their  own  rights,  and  must 
be  of  the  same  kind  and  quality,  and  be  clearly 
ascertained  or  liquidated;  they  must  be  certain 
and  determined  debts.  Naglee  v.  Palmer,  7  Cal. 
543  ;  see  this  doubted,  however,  in  Duff  v.  Hobbs, 
19  Cal.  646. 

9.  What  may  be  set  up  as  a  counterclaim,  etc., 
in  sui's  on  contracts.  Plaintiff  sues  for  balance 
due  on  a  contract  for  erecting  a  building,  and  a 
small  sum  for  extra  work.  Defendant  seeks  to 
offset  a  claim  for  two  and  one  third  months'  rent 
lost  by  him,  because  of  the  neglect  of  plaintiff  to 
finish  the  building  within  the  time  specified  in 
the  contract,  defendant  having  at  the  date  of  the 
contract  leased  the  building  to  responsible  ten- 
ants, the  lease  to  take  eft'ect  from  the  time  of  its 
completion,  as  required  under  the  contract;  but  it 
was  decided  that  defendant  cannot  offset  his  rents, 
because  the  circumstances  show  that  the  contract 
was  modified  by  the  parties  as  to  the  time  for  the 
completion  of  the  building.  McGinley  v.  Hardy, 
18  Cal.  115. 

10.  Copartnership  claims,  debts,  etc.,  as  set- 
offs, when.  A  party  may  purchase  cross-demanda 
against  a  partnership,  and  set  them  up  as  a  de- 
fense to  a  debt  due  by  him  to  a  partnership. 
Naglee  v.  Minturn,  8  Cal.  540;  Marye  v.  Jones, 
9  Cal.  335.  In  a  suit  to  recover  damages  for 
breach  of  a  covenant  to  indemnify  plaintiff  against 
liabilities,  the  defendant  cannot  set  up  as  a  coun- 
terclaim demands  which  were  matters  of  part- 
nership between  the  parties.  Haskell  v.  Moore, 
29  Cal.  437.  When  partners  are  sued  as  factors, 
their  claim  for  disbursements,  commissions,  etc., 
need  not  be  stated  in  their  answer  as  set-offs. 
Lubert  v.  Chauviteau,  3  Cal.  463 ;  58  Am.  Dec. 
415. 

11.  Equity  will  enforce  set-off,  when.  When 
the  parties  have  mutual  demands  against  each 
other,  which  are  so  situated  that  it  is  impossible 
for  the  party  claiming  a  set-off  to  obtain  satisfac- 
tion of  his  claim  by  an  ordinary  suit  at  law  or 
in  equity,  then  upon  the  filing  of  a  bill  a  court 
of  equity  will  enforce  the  equitable  set-off.  Rus- 
sell v.  Conway,  11  Cal.  93;  see  also  Collins  v. 
Butler,  14  Cal.  227;  Hobbs  v.  Duff,  23  Cal.  596. 

12.  Judgments,  when  set-offs,  and  how.  When 
a  person  seeks  to  set  off  judgments  in  different 
courts,  he  must  go  into  the  court  in  which  the 
judgment  against  himself  was  recovered.  Russell 
v.  Conway,  11  Cal.  101.  See  also,  as  to  judg- 
ments as  set-offs,  Beckman  v.  Manlove,  18  Cal. 
388;  Collins  v.  Butler,  14  Cal.  227;  Porter  v. 
Liscom,  22  Cal.  430;  83  Am.  Dec.  76;  and  par- 
tiffularly  Hobbs  v.  Duff,  23  Cal.  596. 

13.  Breach  of  warranty  as  counterclaim  by  way 
of  recoupment.    See  Earl  v.  Bull,  15  Cal.  425. 

14.  Set-offs  should  be  specially  pleaded.  See 
Hicks  V.  Green,  9  Cal.  75;  Wallace  v.  Hear  River 
etc.  Mining  Co.,  18  Cal.  461;  Bernard  v.  Mullot, 
1  Cal.  368;  Cole  v.  Swanston,  1  Cal.  51;  52  Am. 
Dec.  288. 


§439.  When  defendant  omits  to  set  up  counterclaim.  If  the  defendant 
omits  to  set  up  a  coimterclaim  upon  a  cause  arising  out  of  the  transaction 
set  forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  neither 
he  nor  his  assignee  can  afterwards  maintain  an  action  against  the  plaintiff 
therefor. 


Legislation  8  439.  1.  Enacted  March  11,  1873. 
and  thi'n  read:  "If  the  defendant  omit  to  set 
up  a  counterclaim  in  the  cases  mentioned  in  the 
first  subdivision  of  the  last  section,  neither  he 
nor  his  assignee  can  afterwards  maintain  an 
action  against  the  plaintiff  therefor." 

2.  Amendment  by  Stats.  1901,  p.  134;  un- 
constitutional.     See  note  anti-,  §  5. 

3.  Amended  by  Stats.  1907,  p.  706;  the  code 
commissioner  saying,  "The  causes  of  action,  with 
respect  to  which  the  defendant  is  oljliged  to 
Assert  a   counterclaim,    are   limited   to   those   aris- 


ing out  of  the  transaction  set  forth  in  the  com- 
plaint." 

Effect  of  failure  to  set  up  counterclaim. 

This  section  refers  to  the  cause  of  action 
provided  for  in  the  first  subdivision  of 
§  438,  ante.  Brosnau  v.  Kramer,  135  Cal. 
36;  66  Pac.  979.  A  defendant  may  set  up 
new  matter  in  his  answer,  constituting  a 
counterclaim,  and  have  any  affirmative  re- 


377 


COUNTERCLAIM — NOT  BARRED  WHEN — MAY  BE  SET  UP  WHEN. 


§440 


damages,  conceding  that  it  is  a  cross-de- 
mand, should  he  i)leaded.  Perkins  v.  West 
Coast  Lumber  (Jo.,  o  (Jal.  App.  G74;  48  Pac. 
982.  The  failure  to  assert  a  cross-claim 
when  a  demand  is  ])rpsented  for  payment 
does  not  involve  a  waiver  of  the  counter- 
claim. iStoddard  v.  Trea.iwell,  26  (al.  294. 
A  claim  for  rents  received  by  a  mortgagee 
for  the  use  of  the  mortgagor  is  not  l)arred 
by  a  failure  to  set  them  up  as  a  counter- 
claim in  an  action  to  foreclose  tlie  mort- 
gage. Freeman  v.  Campbell,  109  Cal.  .SGO; 
42  Pac.  35.  A  claim  for  money,  the  pro- 
ceeds of  crops,  paid  to  a  mortgagee,  under 
a  mistake  that  he  was  entitled  to  such  pro- 
ceeds, which  had  been  assigned  by  the 
mortgagor  before  answer  filcl  in  the  fore- 
closure suit,  is  not  so  legally  connected 
with  the  subject  of  the  action  as  to  be 
barred  by  failure  to  plead  it  as  a  counter- 
claim. Gregory  v.  Clabrough,  129  Cal.  475; 
&2  Pac.  72. 


lief  to  which  he  may  be  entitled;  but  it 
does  not  follow  therefrom  that  he  is  com- 
pelled to  do  so;  such  a  rule  might  become 
mischievous  in  its  results,  for  the  defend- 
ant might  then  be  wholly  unprepared  to 
make  out  his  ease  for  the  want  of  testi- 
mony, which,  at  another  time,  might  be  at 
his  command;  and  while  the  statute  pro- 
vides that  the  defendant  may  set  out  new 
matter  as  a  defense  in  his  favor,  and  ob- 
tain afTirmative  relief,  yet  it  nowhere  pro- 
vides that  he  shall  do  it,  under  a  jienalty 
of  forfeiture  of  his  claim:  he  may  there- 
fore do  it  or  not,  at  his  option.  Ayres  v. 
Bensley,  32  Cal.  G20.  Damages  for  deceit 
in  the  sale  of  property  must  be  set  up  as  a 
counterclaim  in  an  action  to  recover  the 
purchase-money:  an  action  cannot  be  main- 
tained therefor,  as  an  independent  action, 
unless  brought  before  the  commencement 
of  the  action  for  the  purchase-money.  Col- 
lins V.  Townsend,  58  Cal.  608.  To  be  avail- 
able, a  defendant's  claim  for  unliquidated 

§  440.  Counterclaim  not  barred  by  death  or  assignment.  When  cross- 
demands  have  existed  between  persons  under  such  circumstances  that,  if  one 
had  brought  an  action  against  the  other,  a  counterclaim  could  have  been 
set  up,  the  two  demands  shall  be  deemed  compensated,  so  far  as  they  equal 
each  other,  and  neither  can  be  deprived  of  the  benefit  thereof  by  the  assign- 
ment or  death  of  the  other. 

Legislation  g  440.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  48,  which  read:  "When 
crossdt:mands  have  existed  between  persons,  un- 
der such  circumstances,  tliat  if  one  had  brought 
an  action  against  the  other,  a  counterclaim  could 
have  been  set  up,  neitlier  shall  be  deprived  of 
the  benefit  thereof,  by  the  assignment  or  death 
of  the  other;  but  the  two  demands  [shall]  be 
deemed  compensated,  so  far  as  they  equal  each 
other."  When  enacted  in  1872,  (1)  the  word 
"can,"  before  the  words  "be  deprived,"  was 
changed  from  "shall,"  (2)  the  word  "must"  was 
added  before  "be  deemed,"  and  (3),  at  the  end 
of  the  section,  this  sentence  was  added:  "But  a 
claim  existing  in  favor  of  the  maker  of  a  nego- 
tiable instrument  and  against  a  holder  after 
maturity,  intermediate  between  the  pa.vee  and 
the   last  holder,    is  not  a  cross-dtniaiid.  ' 

2.    Amended    by  Code  Amdts.  1873-74,  p.  300. 

Cross-demands  must  exist.  The  rights  of 
the  parties  under  this  section  are  mutual. 
Moore  v.  Gould,  151  Cal.  723;  91  Pac.  616. 
The  mere  existence  of  cross-demands  will 
not  justify  a  set-off  in  a  court  of  chancery: 
there  must  be  some  peculiar  circumstances, 
based  upon  equitable  grounds,  to  warrant 
the  court  in  interfering;  and  if  there  are 
cross-demands  between  the  parties,  of  such 
a  nature  that,  if  both  were  recoverable  at 
law,  they  would  be  the  subject  of  a  set-off, 
then,  and  in  such  a  case,  if  either  of  the 
demands  be  a  matter  of  equitable  Jurisdic- 
tion, the  set-off  will  be  enforced  in  equity; 
as,  for  example,  if  a  legal  debt  is  due  to 
the  defendant  by  the  jdaintiff,  and  the 
plaintiff  is  the  assignee  of  a  legal  deljt  due 
to  a  third  person  from  the  plaintiff,  which 
has  been  duly  assigned  to  himself,  a  court 
of  equity  will  set  off  the  one  against  the 
other,  if  both  debts  could  properly  be  the 
subject    of    a    set-off    at    law    (Naglee    v. 


Palmer,  7  Cal.  543),  and  will  do  equity  to 
the  defendant,  although  no  offset  or  quan- 
tum meruit  is  pleaded.  Turner  v.  Fidelity 
Loan  Concern,  2  Cal.  App.  122;  83  Pac. 
62,70. 

Counterclaim  may  be  set  up  when  two 
demands  are  compensated.  The  demand 
that  may  be  used  to  compensate  another, 
under  this  section,  must  be  such  as  would, 
constitute  the  subject-matter  of  the  statu- 
tory counterclaim;  counterclaims  differ 
from  the  equitable  right  of  set-off,  which 
requires  some  peculiar  circumstances,  based 
uj^on  equitable  grounds,  such  as  fraud,  in- 
solvency, or  the  like,  to  warrant  the  inter- 
ference of  the  court;  both  the  statutory- 
right  and  the  equitable  right,  however,  are 
founded  on  the  idea  that  mutual  existing 
indebtedness,  arising  out  of  contracts  be- 
tween parties  to  the  record,  creates  a  com- 
pensation or  payment  of  both  demands,  so 
far  as  they  equal  each  other;  but,  under 
the  code,  the  two  demands  must  be  mutual, 
and  coexist  as  separate  causes  of  action 
at  the  commencement  of  the  action  upon 
the  principal  demand.  Lyon  v.  Petty,  65 
Cal.  322;  4  Pac. -103.  Cross-demands,  un- 
der this  section,  can  be  deemed  comj^en- 
sated,  so  far  as  they  equal  each  other,  only 
under  such  circumstances  as  where,  if  one 
jiarty  should  bring  an  action  against  an- 
other, a  counterclaim  could  be  set  up.  Mc- 
Kean  v.  German- American  Sav.  Bank,  IIS 
Cal.  334;  50  Pac.  656.  Thus,  in  an  account- 
ing, the  defendant  is  entitled  to  credit  for 
payments  made  by  him  to  the  plaintiff, 
and    the    cross-demands    must    be    deemed 


§441 


ANSWER. 


378 


compensated  so  far  as  they  equal  each 
other.  Dillon  v.  Cross,  5  Cal.  App.  766;  91 
Pae.  439.  Promissory  notes  of  a  deceased 
person,  due  at  the  time  of  his  death,  but 
upon  which  no  claims  were  presented,  and 
upon  which  action  was  barred  at  the  time 
of  the  commencement  of  an  action  by  his 
administrator  to  foreclose  a  mortgage  held 
by  the  deceased,  not  due  at  the  time  of 
his  death,  are  not  subject  to  counterclaim 
or  set-off;  neither  constituting  a  cause  of 
action  upon  which  a  counterclaim  was 
maintainable  at  the  commencement  of  the 
foreclosure  suit,  nor  constituting  such  coun- 
terclaim at  the  time  of  the  death  of  the 
decedent,  the  mortgage  debt  not  then  be- 
ing due,  and  no  cause  of  action  existing 
thereon.  Lyon  v.  Petty,  65  Cal.  322;  4  Pac. 
103.  A  draft  drawn  by  the  plaintiff  on 
the  defendant,  but  not  presented  or  paid, 
creates  no  cause  of  action  in  the  defend- 
ant, and  consequently  creates  no  riaht  of 
set-oflf.  Wakeman  v.  Vanderbilt,  3  Cal.  380. 
Where  a  vendor  owes  the  vendee  a  sum 
sufficient  to  pay  the  contract  liability,  and 
the  one  debt  can  offset  the  other,  the  two 
demands,  so  far  as  they  equal  each  other, 
are  deemed  compensated,  under  this  sec- 
tion. Williams  v.  Pratt,  10  Cal.  App.  625; 
103  Pac.  151. 

Effect  of  death  of  party.  This  section  re- 
lates to  the  situation  of  the  parties  at  the 
time  of  the  commencement  of  the  action; 
the  death  of  one  of  the  parties  to  the  de- 
mand, though  before  the  maturity'  thereof, 
does  not  change  their  relative  rights  in 
pleading  a  counterclaim,  or  in  compensat- 
ing the  claims  so  far  as  they  equal  each 
other,  provided  the  set-off  is  due  wheu  the 
action  is  commenced.  Ainsworth  v.  Bank 
of  California,  119  Cal.  470;  63  Am.  St.  Rep. 
135;  39  L.  R.  A.  686;  51  Pac.  952. 

Effect  of  assignment  by  party.  The 
owner  of  premises  cannot  set  off  a  claim  for 
damages,  sustained  by  being  compelled  to 
make  repairs  on  certain  work  done  by  a 
contractor,  against  the  assignee  of  the  con- 
tractor, where  such  claim  arose  after  notice 
of    the    assignment.     First    Nat.    Bank    v. 

§  441 .  Answer  may  contain  several  grounds  of  defense.  Defendant  may- 
answer  part  and  demur  to  part  of  complaint.  The  defendant  may  set  forth 
by  answer  as  many  defenses  and  counterclaims  as  he  may  have.  They  must 
be  separately  stated,  and  the  several  defenses  must  refer  to  the  causes  of 
action  which  they  are  intended  to  answer,  in  a  manner  by  which  they  may 
be  intellirribly  distinguished.  The  defendant  may  also  answer  one  or  more 
of  the  several  causes"  of  action  stated  in  the  complaint  and  demur  to  the 
residue. 

Legislation  §  441.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  49  (New  York  Code, 
§  150),  which  had  (1)  the  words  "shall  each," 
instead  of  "must,"  before  "be  separately,"  and 
(2)  the  word  "shall,"  instead  of  "must,"  before 
"refer";   but  did   not  have  the  last  sentence. 


Perris  Irrigation  Dist.,  107  Cal.  55;  40  Pac. 
45.  One  judgment  may  be  set  off  against 
another  judgment  rendered  in  the  same 
court  (Haskins  v.  Jordan,  123  Cal.  157;  55 
Pac.  786);  and  a  judgment  in  favor  of  the 
defendant  may  be  set  off  pro  tanto  against 
a  judgment  in  favor  of  the  plaintiff  in  the 
same  action;  and  this  right  of  set-off  is  not 
lost  by  assignment,  by  the  plaintiff,  before 
making  the  motion  to  offset  (Porter  v.  Lis- 
com,  22  Cal.  430;  83  Am.  Dec.  76);  but  the 
assignee  of  a  judgment,  to  use  it  as  an  off- 
set to  a  judgment  against  himself,  must 
show  that  he  is  the  absolute  ov>'ner  of  the 
judgment  and  holds  beneficial  control  of  it. 
Jones  v.  Chalfant,  55  Cal.  505.  The  as- 
signee of  a  judgment  is  deemed  to  have 
notice  of  all  the  matters  disclosed  by  the 
record  in  the  action  in  which  the  judgment 
was  rendered,  and  therefore  takes  judg- 
ment subject  to  the  right  of  set-off  dis- 
closed in  the  record.  Hobbs  v.  Duff,  23  Cal. 
596.  The  purchaser  and  assignee  of  a  judg- 
ment, even  for  a  valuable  consideration 
and  without  notice,  takes  subject  to  a  right 
of  set-off  existing  at  the  time  of  the  as- 
signment. McCabe  v.  Grev,  20  Cal.  509; 
Porter  v.  Liscom,  22  Cal.  430;  83  Am.  Dec. 
76;  St.  Louis  Nat.  Bank  v.  Gay,  101  Cal. 
286;  35  Pac.  876;  Haskins  v.  Jordan,  123 
Cal.'  157;  55  Pac.  786.  The  judgment 
against  an  assignor  of  the  plaintiff  or 
party  beneficially  interested  cannot  be 
pleaded  as  a  set-off  or  counterclaim.  Duff' 
v.  Hobbs,  19  Cal.  646.  Where  the  relation 
of  debtor  and  creditor  exists  between  the 
parties,  and  one  becomes  vested  with  a 
right  of  action  against  the  other,  such 
right  is  assignable,  and  enforceable  by  the 
assignee,  subject  to  any  defense  or  counter- 
claim against  the  assignor.  Watkius  v. 
Glas,  5  Cal.  App.  68;  89  Pac.  840. 

CODE  COMMISSIONERS'  NOTE.  Vinton  v. 
Crowe,  4  Cal.  309.  The  last  clause  is  added  to 
ihe  section  at  the  instance  of  Justice  V.'allace. 
Although  a  party  may  set  up  an  equitable  defense 
to  an  action  at  law,  his  remedy  is  not  confined  to 
that  proceeding.  He  may  let  the  judgment  go  at 
law,  and  file  his  bill  in  equity  for  relief.  Lor- 
raine V.  Long,  6  Cal.  453. 


Defendant  may  set  up  all  his  defenses. 

That  tlio  defendant  may  set  forth  as  many 
defenses    as    he    thinks   proper,    is    a   right 


fully  recognized,  as  is  also  the  fact  that 
pleading  one  defense  cannot  be  held  a 
waiver  of  another  in  the  same  answer, 
even  though  inconsistent.  Bell  v.  Brown, 
22  Cal.  671;  Snipsic  Co.  v.  Smith,  7  Cal. 
App.  150;  93  Pac.  1035;  Harding  v.  Hard- 
ing, 148  Cal.  397;  83  Pac.  434;  and  see 
McDonald  v.  Southern  California  Ry.  Co., 


379 


MAY  SET   UP   ALL   DEFENSES — INCONSISTENT  DEFENSES. 


§441 


101  Cal.  206;  35  Pac.  643,  646.  The  de- 
fendant may  rely  on  several  distinct  de- 
fenses: he  is  not  concluded  by  one  plea, 
so  long  as  he  has  others  which  go  to  the 
whole  action  (Youngs  v.  Bell,  4  Cal.  201)  j 
nor  is  he  required  to  elect  between  de- 
fenses. Harding  V.  Harding,  148  Cal.  397; 
83  Pac.  434,  If  the  plaintiff  objects  to  in- 
consistent defenses,  he  must  move  to  strike 
out  one  or  the  other,  or  apply  for  an  order 
compelling  the  defendant  to  elect  as  to 
which  one  he  will  rely  upon.  Buhne  v. 
Corbett,  43  Cal.  264;  Banta  v.  Siller,  121 
Cal.  414;  53  Pac.  935.  Inconsistent  de- 
fenses and  hypothetical  pleadings  are  per- 
mitted. Eppinger  v.  Kendrick,  114  Cal. 
620;  46  Pac.  613.  The  defendant  may  plead 
any  and  all  of  his  defenses,  and  they  may 
be  inconsistent  with  one  another,  and  the 
effect  of  a  denial  in  one  defense  is  not 
aided  by  setting  up  affirmative  matter  in 
another.  Miles  v.  Woodward,  115  Cal.  308; 
46  Pac.  1076;  Shepherd-Teague  Co.  v.  Her- 
mann, 12  Cal.  App.  394;  107  Pac.  622. 
He  may  set  up  negative  as  well  as  affirma- 
tive defenses;  and  affirmative  matter,  sepa- 
rately pleaded,  does  not  operate  as  a  waiver 
or  withdrawal  of  the  denial  in  another  por- 
tion of  the  answer.  Billings  v.  Drew,  52 
Cal.  565.  He  may  deny  that  he  controlled 
the  instrument  causing  an  accident,  and, 
as  a  separate  defense,  may  deny  that  the 
accident  occurred  through  his  negligence, 
and  allege  contributory  negligence  of  the 
plaintiff.  Banta  v.  Siller,  121  Cal.  414;  53 
Pac.  935.  If  a  plea  or  defense,  separately 
pleaded,  contain  several  matters,  these 
should  not  be  repugnant  or  inconsistent 
in  themselves;  but  the  plea  or  defense,  re- 
garded as  an  entirety,  if  otherwise  suffi- 
cient in  form  or  substance,  is  not  to  be 
defeated  or  disregarded,  merely  because 
it  is  inconsistent  with  some  other  defense. 
Buhne  v.  Corbett,  43  Cal.  264.  The  object 
of  sworn  pleadings  is  to  elicit  the  truth; 
therefore  the  answer  should  be  consistent, 
and  not  deny  in  one  sentence  what  is  ad- 
mitted to  be  true  in  the  next.  Hensley  v. 
Tartar,  14  Cal.  508.  A  statement  in  one 
defense  cannot  be  used  as  evidence  upon 
another  issue;  to  allow  such  would  be  to 
deprive  the  defendant  of  the  benefit  of  his 
denials.  McDonald  v.  Southern  California 
Ry.  Co.,  101  Cal.  206;  35  Pac.  643,  646. 
In  an  action  for  a  statutory  penalty  for 
a  failure  to  make  and  post  reports  of  a 
mining  corporation,  the  defendant  may 
deny  the  violation  of  the  statute,  and,  by 
separate  defense,  aver  matters  in  extenua- 
tion, excuse,  and  defense;  and  the  effect 
of  a  denial  in  one  defense  is  not  waived 
by  the  setting  up  of  affirmative  matter  in 
another;  and,  in  such  case,  it  is  incumbent 
upon  the  plaintiff  to  prove  the  defendant's 
violation  of  the  statute.  Miles  v.  Wood- 
ward, 115  Cal.  308;  46  Pac.  1076.  Incon- 
sistency between  defenses  will  not  justify 
striking  out  other  defenses.  Baker  v. 
Southern  California  Ey.  Co.,  106  Cal.  257; 
46  Am.  St.  Kep.  237;  39  Pac.  610;  McDon- 


ald V.  Southern  California  Ey.  Co.,  101 
Cal.  206;  35  Pac.  643,  646.  A  denial  of 
the  title  of  the  plaintiff,  and  a  separate 
defense  of  the  statute  of  limitations,  are 
not  inconsistent  defenses.  Willson  v. 
Cleaveland,  30  Cal.  192. 

Bight  to  plead  inconsistent  defenses.  See  note 
48  L.  R.  A.  177. 

CODE  COMMISSIONERS'  NOTE.  Inconsistent 
defenses.  In  Bell  v.  Brown,  22  Cal.  079,  the 
court  say:  "The  question  of  inconsistent  defenses 
and  hypothetical  pleadings  under  the  code  has 
been  adjudicated  by  the  courts  of  other  states  in 
numerous  cases,  and  the  right  of  a  defendant  to 
set  forth  as  many  defenses  as  he  thinks  proper 
is  fully  recognized,  and  also  that  pleading  one 
defense  cannot  be  held  a  waiver  of  another  in  the 
same  answer,  even  though  inconsistent.  In  Sweet 
V.  Tuttle,  14  N.  Y.  465,  Mayhew  v.  Robinson,  10 
How.  Pr.  162,  and  Bridge  v.  Payson,  5  Sandf. 
210,  a  general  denial  and  plea  of  nonjoinder  of 
defendants  were  united  and  held  good.  So  in 
Gardner  v.  Clark,  21  N.  Y.  399,  where  a  plea  of 
performance  and  a  former  action  pending  were 
joined.  So  in  Doran  v.  Dinsmore,  20  Hov;'.  Pr. 
503,  where  a  general  denial  was  coupled  with  a 
plea  of  payment.  So  in  Mott  v.  Burnett,  2  K.  D. 
Smith,  52,  it  w^as  held  that  the  defendant  might 
deny  making  the  note  sued  on,  allege  a  set-off, 
and  that  one  of  the  makers  of  the  note  had  been 
discharged  by  the  holder.  In  an  action  to  re- 
cover personal  property  it  was  held  the  defend- 
ant might  answer  by  a  general  denial,  and  set  up 
a  justification  of  the  taking.  Hackley  v.  Ogmun, 
10  How.  Pr.  44.  In  slander,  that  lie  may  deny 
the  charge  and  also  justify.  Orrasbv  v.  Douglas, 
5  Duer,  665;  Butler  v.  Wentworth,  17  Barb. 
C49;  Butler  v.  Wentworth,  9  How.  Pr.  282.  So, 
also,  that  pleas  which  were  not  inconsistent  un- 
der the  former  practice  are  good  as  answers  under 
the  code.  Lansingh  v.  Parker,  9  How.  Pr.  288. 
Held,  too,  that  a  defendant  should  never  be  re- 
quired to  elect  between  a  denial  of  a  material 
allegation  of  the  complaint  and  new  matter  con- 
stituting a  defense  (Hollenbeck  v.  Clow,  9  How. 
Pr.  289)  ;  and  that  it  was  not  necessary  that  the 
several  defenses  in  an  answer  should  be  consist- 
ent with  each  other.  Stiles  v.  Comstock,  9  How. 
Pr.  48.  Also,  that  denials  of  allegations  in  the 
complaint  may  be  coupled  with  a  defense  of  the 
statute  of  limitations.  Ostrom  v.  Bi.xby,  9  How. 
Pr.  57.  Held,  too,  that  a  defense  might  be  hypo- 
thetically  predicated  upon  a  fact  alleged  in  the 
complaint,  as  an  answer  after  denying  that  the 
plaintiff  was  the  owner  of  the  note  sued  on, 
averred  that  if  the  plaintifl  is  the  owner,  he  took 
it  with  notice  of  a  failure  of  the  consideration. 
Brown  v.  Ryckman,  12  How.  Pr.  313.  Or  if  ths 
defendants,  by  their  agents,  ever  issued  the  cer- 
tificate of  deposit  sued  on,  the  same  has  been 
paid.  Doran  v.  Dinsmore,  20  How.  Pr.  503.  Also 
held  that  an  implied  admission  in  one  of  the  de- 
fenses set  up  in  an  answer  will  not  conclude  or 
estop  the  defendant  from  proving  another  defense 
set  up  in  the  same  answer,  as  each  defense  in  an 
answer  stands  by  itself,  and  an  admission  in  one 
is  not  available  against  the  others.  Swift  v. 
Kingsley,  24  Barb.  541.  In  the  case  of  Ketcham 
V.  Zereiga,  1  E.  D.  Smith,  553,  this  question  was 
very  fully  examined,  and  the  right  of  a  defend- 
ant to  file  inconsistent  defenses  and  hypothetical 
pleadings,  under  proper  circumstances,  was  fully 
maintained.  In  the  case  of  Youngs  v.  Bell,  4  Cal. 
201,  the  right  of  a  defendant  to  set  up  several 
distinct  defenses,  and  to  rely  upon  all  of  them  in 
order  to  put  the  plaintiff  to  his  proof,  was  sus- 
tained, and  it  was  held  that  he  was  not  concluded 
by  one  plea,  so  long  as  he  had  others  which  went 
to  the  whole  action.  See  also  Kidd  v.  Laird,  15 
Cal.  182;  76  Am.  Dec.  472.  We  are  aware  that 
there  are  several  decisions,  both  in  our  own  and 
other  courts,  which  have  laid  down  contrary  views, 
but  the  weight  of  principle  and  authority  is  in 
favor  of  the  rule,  that,  under  proper  circum- 
stances, a  defendant'  may  set  up  several  defenses 
in  his  answer,  inconsistent  with  each  other,  though 


§442 


ANSWER. 


380 


miffht  be  inconsistent  with  each  other,  were  re- 
o,uired  each  to  be  consistent  with  itself.  Bell  v. 
Brown,  22  Cal  679:  see  also  Klink  v.  Cobpn.  13 
Cal.  623;  Uridias  v.  Morrell,  25  Cal.  31;  Willson 
V.  Cleaveland,  30  Cal.  192;  Racouillat  v.  Rene, 
32  Cal.  450." 

2.  Generally.  See  Mudd  v.  Thompson,  34  Cal. 
46:  Carpentier  v.  Small,  35  Cal.  347;  Racouillat 
V.  Rene,  32  Cal.  450. 


each  defense  must  be  consistent  with  itself.  The 
cases  decided  bv  the  court  of  appeals  in  the  state 
of  New  York,  and  reported  in  Sweet  v.  Tuttle  14 
N  Y  465,  and  Gardner  v.  Clark,  21  N.  Y.  399, 
seem  to  have  settled  the  rule  in  that  state.  The 
Tiew  we  t.nke  harmonizes  the  new  code  with  the 
well-established  principle  of  the  old  system  of 
practice.  Works  on  pleading  are  full  of  prece- 
dents and  forms  recognizing  fully  the  right  of  a 
defendant  to  file  several  pleas,  which,  though  they 

§  442.  Cross-complaint.  Whenever  the  defendant  seeks  affirmative  relief 
a<'ainst'  any  party,  relating  to  or  depending  upon  the  contract  or  trans- 
action upon  which  the  action  is  brought,  or  affecting  the  property  to  which 
the  action  relates,  he  may,  in  addition  to  his  answer,  file  at  the  same 
time,  or  by  permission  of  the  court  subsequently,  a  cross-complaint.  The 
cross-complaint  must  be  served  upon  the  parties  affected  thereby,  and  such 
parties  may  demur  or  answer  thereto  as  to  the  original  complaint.  If  any 
of  the  parties  affected  by  the  cross-complaint  have  not  appeared  in  the  ac- 
tion, a  summons  upon  the  cross-complaint  must  be  issued  and  served  upon 
them  in  the  same  manner  as  upon  the  commencement  of  an  original  action. 

App.  518;  126  Pac.  512),  and  a  cross-com- 
plaint is  not  authorized  in  a  justice's  court: 
it   is   confined   to   actions   in    the    superior 


Original  complaint.    Ante,  §§  426,  427. 

Dismissing  action,  where  cross-complaint.  Post, 
i  581. 

Legislation  §  442.  1.  Added  by  Code  Amdts. 
1873-74.  p.   301    (changes  noted  infra). 

2.  Amendment  by  Stats.  1901,  p.  134;  un- 
constitutional.     See   note   ante,  §  5. 

3.  Amended  by  Stats.   1907,  p.  706. 

4.  Amended  by  Stats.  1909,  p.  966,  adding 
the  final   sentence. 

5.  Amended  by  Stats.  1915.  p.  298,  eliding 
"to  the  action,"  after  "party"  (added  in  1907). 

Nature  and  elements.  A  cross-complaint 
must  state  facts  sufficient  to  entitle  the 
pleader  to  affirmative  relief:  it  cannot  be 
aided  by  averments  in  any  of  the  other 
pleadings,  and  must  fall,  unless  sustained 
by  its  own  allegations;  like  the  complaint, 
it  should  contain  all  the  requisite  facts. 
Coulthurst  V.  Coulthurst,  58  Cal.  239; 
Kreichbaum  v.  Melton,  49  Cal.  50.  A 
cross-complaint  must  state  a  separate  and 
independent  cause  of  action  upon  a  con- 
tract, under  the  second  subdivision  of 
§  438,  ante,  which  is  subject  to  the  same 
grounds  of  demurrer  as  an  original  com- 
plaint. Ilarron  v.  Wilson,  4  Cal.  App.  488; 
88  Pac.  512.  It  must  stand  or  fall  on  its 
own  allegations  of  facts.  Collins  v.  Bart- 
lett,  44  Cal.  371.  To  constitute  a  counter- 
claim or  cross-complaint,  the  relief  sought 
must,  to  some  extent,  defeat,  overcome,  or 
affect  the  plaintiff's  cause  of  action,  or 
lessen,  modify,  or  interfere  with  the  relief 
to  which  the  plaintiff  is  entitled.  Yorba  v. 
Ward,  109  Cal.  107;  38  Pac.  48;  41  Pac. 
793.  A  cross-complaint  is  unnecessary 
where  the  relief  demanded  can  be  had 
upon  the  denials  and  averments  of  the  an- 
swer; but  it  is  proper  where  full  relief 
cannot  be  given  the  defendant  upon  the 
answer,  and  it  is  sought  to  have  the  whole 
controversy  between  the  parties  finally  ad- 
judicated and  settle/!  in  one  action.  Mar- 
tin V.  Molora,  4  Cal.  App.  298;  87  Pac. 
1104.  Neither  a  counterclaim  nor  a  cross- 
complaint  is  permissible  in  actions  of  un- 
lawful detainer  (Knight  v.  Black,  19  Cal. 


court.    Purcell  v.  Eichardson,  164  Cal.  150; 
128  Pac.  31. 

Permission  of  the  court.  The  action  of 
the  court  in  overruling  the  demurrer  of 
new  parties  brought  in  by  way  of  cross- 
complaint  may  be  taken  as  evidence  of  its 
consent  to  a  cross-complaint.  Syvertson  v. 
Butler,  3  Cal.  App.  345;  85  Pac.  164. 

Relief  must  relate  to  or  depend  upon 
the  transaction  upon  which  the  action  is 
brought.  Any  person  made  a  defendant  is 
authorized  to  set  up  by  cross-complaint  his 
right  to  affirmative  relief,  depending  upon 
the  contract  or  transaction  upon  which  the 
action  is  brought,  or  affecting  the  property 
to  which  the  action  relates.  Lowe  v.  Su- 
perior Court,  165  Cal.  708;  134  Pac.  190. 
The  cause  of  action  set  up  in  the  cross- 
complaint  must  relate  to  or  depend  upon 
the  contract  or  transaction  upon  which 
the  plaintiff's  action  is  brought,  or  af- 
fect the  property  to  which  it  relates;  and 
in  an  action  to  foreclose  a  material-man's 
lien,  a  cross-complaint  which  alleges  that 
the  defendant,  to  avoid  litigation,  paid  to 
the  plaintiff,  upon  a  date  prior  to  that 
upon  which  the  complaint  alleges  the  con- 
tract for  the  materials  was  made,  a  sum 
of  money  in  excess  of  what  was  then  due 
him,  and  which  asks  judgment  for  such 
excess,  is  not  authorized  bv  this  section. 
Clark  V.  Taylor,  91  Cal.  552;  27  Pac.  860. 
In  an  action  for  the  foreclosure  of  an 
equitable  mortgage  securing  a  promissory 
note,  the  defendant  cannot  set  up,  by  way 
of  cross-complaint,  a  cause  of  action 
against  the  plaintiff  for  the  improper  levy 
of  an  attachment  of  the  property  of  the 
defendant,  in  a  prior  action  instituted  by 
the  plaintiff  on  the  note.  Clark  v.  Kellev, 
163  Cal.  207;  124  Pac.  846.  In  an  action 
to  enjoin  a  diversion  of  water,  a  cross- 
complaint,    claiming   rights    in    the    water 


381 


CROSS-COMPLAINT AFFECT  SAJIE   PROPERTY SERVICE,    ETC, 


H42 


diverted,  but  which  nowhere  shows  that 
the  defendant  owns  or  holds  by  rif^ht  any 
lands  riparian  to  the  stream,  ancl  merely 
-avers  that  he  owns  several  lots,  and  has 
possession  and  control  of  others,  without 
averrinj^  that  he  possesses  or  controls  them 
by  right,  and  states  that  the  stream  flows 
through  its  natural  channel,  over  and 
across  the  land  of  the  defendant;  without 
stating  that  it  flows  across  the  lots  owned 
by  him,  does  not  state  a  cause  of  action  or 
ground  of  cross-complaint.  Silver  Creek 
etc.  Water  Co.  v.  Hayes,  113  Cal.  142;  45 
Pac.  191.  In  an  action  to  set  aside  cer- 
tain proceedings  as  to  laud,  to  which  plain- 
tiff asserts  title,  the  defendant,  being  a 
purchaser  in  ])ossession,  may  maintain  a 
cross-complaint  to  quiet  his  title  as  against 
a  void  and  fraudulent  deed  to  the  plain- 
tiff. Stephenson  v.  Deuel,  12o  Cal.  656;  58 
Pac.  258.  In  an  action  to  foreclose  a  street 
assessment,  a  cross-complaint  cannot  be 
interposed  for  injuries  to  the  land  in  the 
2)roseeution  of  the  work.  Engebretsen  v. 
Gay,  158  Cal.  27;  109  Pac.  879.  This  sec- 
tion authorizes  a  cross-complaint  for  the 
specific  performance  of  an  agreement  to 
convey  the  premises  to  defendant,  in  an 
action  to  recover  buildings  removed  from 
the  plaintiff's  land.  Hall  v.  Cole,  4  Cal. 
Unrep.   92S:    .38  Pac.   894. 

Must  affect  property  to  which  the  action 
relates.  This  section  authorizes  a  cross- 
complaint  whenever  the  defendant  seeks 
afBrmative  relief  affecting  the  property 
to  which  the  action  relates,  and  seemingly 
permits,  in  an  action  regarding  real  es- 
tate, the  assertion  of  a  title  indejiondent 
of  and  paramount  to  that  of  the  plaintiff. 
Taylor  v.  McLain,  64  Cal.  513;  2  Pac.  399; 
Martin  v.  Molera,  4  Cal.  App.  298;  87  Pac. 
1104.  In  an  action  for  damages  for  in- 
juries to  personal  property,  damages  for  a 
trespass  upon  real  estate  is  not  a  proper 
subject  for  cross-comjilaint,  unless  con- 
nection between  the  causes  of  action  is 
shown.  Demartin  v.  Albert,  68  Cal.  277; 
9  Pac.  157.  A  cross-complaint  must  af- 
fect the  same  property  as  that  affected  by 
the  original  complaint;  a  claim  for  an  en- 
tirely distinct  piece  of  property  or  ease- 
ment, not  in  any  way  connected  with  that 
described  in  the  original  complaint,  cannot 
be  set  up  by  cross-complaint.  Bulwer  Con- 
sol.  Mining  Co.  v.  Standard  Consol.  Min- 
ing Co.,  83  Cal.  589;  23  Pac.  1102.  Where 
the  original  action  relates  to  and  affects 
two  parcels  of  property,  the  defendant  is 
entitled  to  interpose,  by  cross-complaint, 
any  defense  he  may  have  as  to  either  or 
both,  and  to  ask  any  affirmative  relief 
necessary  and  proper.  Eureka  v.  Gates, 
120  Cal.  54;  52  Pac.  125.  The  requisite  of 
connection  of  the  defendant's  cause  of  ac- 
tion with  the  subject  of  the  plaintiff's 
action  is  not  defined  or  restricted  by  this 
section;  nor  is  it  provided  that  the  af- 
firmative relief  sought  shall  affect  only  the 
property  to  which  the  plaintiff's  action  re- 
lates:   only    some    connection    is    required. 


Stockton  Sav.  &  L.  Soc.  v.  Harrold,  127 
Cal.  612;  60  Pac.  165.  In  ejectment,  a 
cross-complaint  as  to  other  land  is  im- 
])roi)er.  McFarland  v.  Matthai,  7  Cal. 
A  J)]).  599;  95  Pac.  179. 

Must  be  served  on  parties  affected.  Ser- 
vice of  the  cross-coniiijaint  should  Ije  made 
on  the  plaintiff;  but  where  no  right  of  his 
was  prejudiced  by  the  omission  to  serve 
him,  the  judgment  will  not  be  reversed  be- 
cause of  it,  especially  where  all  matters 
of  substance  charged  in  the  com{)laint 
were  pleaded  affirmatively  in  the  answer, 
which  was  served  on  him,  so  that  he  met, 
in  the  prosecution  of  his  own  action,  every 
issue  which  would  have  been  tendered  to 
him  had  he  been  served  also  with  the 
cross-complaint.  Mackenzie  v.  Hodgkin, 
126  Cal.  591;  77  Am.  St.  Rep.  209;  59  Pac. 
36.  It  may  be  served  on  the  plaintiff's 
attorney  (Ritter  v.  Eraash,  11  Cal.  App. 
258;  104  Pac.  592),  and  upon  either  the 
adverse  party  or  his  attorney.  Wood  v. 
.Johnston,  8  Cal.  App..  258;  96  Pac.  508. 
A  cross-complaint  affecting  the  interest  of 
defaulting  defendants  must  be  served  upon 
them.  Hibernia  Sav.  &  L.  Soc.  v.  Fella,  54 
Cal.  598.  A  party  defendant  both  to  the 
complaint  and  cross-com.plaint,  in  a  fore- 
closure suit,  is  entitled  to  service  upon  him 
of  the  cross-complaint,  which  prays  that 
the  defendants,  and  all  persons  claiming 
under  them,  be  barred  and  foreclosed  of 
all  their  rights,  claim,  and  equity  of  re- 
demption, although  the  cross-com))]aint 
does  not  allege  that  such  defendant  claims 
an  interest  in  the  premises.  Houghton  v. 
Tibbets,  126  Cal.  57;  58  Pac.  318. 

New  parties  cannot  be  brought  in.  Since 
the  amendment  of  1907  to  this  section,  new 
parties  cannot  be  brought  into  the  case 
by  v/av  of  cross-complaint.  Merchants' 
Trust  Co.  V.  Bentel,  10  Cal.  App.  75;  101 
Pac.  31;  Clark  v.  Kelley,  163  Cal.  207;  124 
Pac.  846.  The  defendant  in  an  action  to 
quiet  title  may,  by  cross-complaint,  bring 
in  whatever  parties  are  necessary  to  a  de- 
termination of  the  controversy;  and  where 
the  defendant  claims  under  an  execution 
sale  of  the  interest  of  a  beneficiary  in  pos- 
session, for  whose  benefit  the  plaintiff 
holds  the  legal  title,  such  beneficiary  is  a 
proper  and  necessary  party,  and  may  be 
brought  in  by  the  cross-complaint.  Winter 
V.  McMillan,"  87  Cal.  256;  22  Am.  St.  Rep. 
243;  25  Pac.  407. 

Pleading  to  cross-complaint.  The  pro- 
vision of  this  section,  that,  where  a  cross- 
complaint  has  been  served  by  the  defend- 
ant claiming  affirmative  relief,  the  party 
served  "may  demur  or  answer  thereto  as  to 
the  original  complaint,"  is  an  exception  to 
the  rule  that  new  matter  in  avoidance  or 
constituting  a  defense  or  counterclaim 
must  be  deemed  controverted.  Moore  v. 
Copp,  119  Cal.  429;  51  Pac.  630.  The  de- 
fense of  an  action  pending  does  not  apply 
to  cross-suits.  Helfrich  v.  Romer,  16  Cal. 
App.  433;  118  Pac.  458.  Matters  of  af- 
firmative   defense    and    counterclaim    are 


;§  443,  444 


DEMURRER  TO  ANSWER. 


382 


deemed  denied,  and  this  rule  is  operative, 
although  the  defendant  erroneously  styles 
the  pleading  a  cross-complaint.  Pfister  v. 
Wade,  69  Cal.  133;  10  Pac.  369. 


Nature  and  extent  of  cross-lDills.  See  note  83- 
Am.  Dee.  251. 

Use  of  cross-complaint  to  bring  in  new  parties. 
See  note  26  L.  R.  A.   (N.  S.)   127. 


CHAPTER  V. 

DEMUKRER  TO  ANSWER. 


§  443.     When  plaintiff  may  demur  to  answer. 


§  444.     Grounds  of  demurrer. 


Demurrer  to  complaint.     Ante,  §  430. 

Service  of  demurrer.    Post,  §  465. 

Time  to  demur,  extending.     Post.  §  1054. 

Time  to  answer,  when  demurrer  overruled, 
begins  to  run  from  service  of  notice  of  decision. 
Post,  §  476. 


§  443.  When  plaintiff  may  demur  to  answer.  The  plaintiff  may  within 
ten  da3'S  after  the  service  of  the  answer  demur  thereto,  or  to  one  or  more 
of  the  several  defenses  or  counterclaims  set  up  therein. 

Answer  and  demurrer  applicable  to  origi- 
nal pleading.  This  section  is  applicable 
only  to  the  original  pleadings  iu  a  cause, 
and  not  to  pleadings  which  are  amended 
or  presented  at  the  trial,  or  during  its 
progress:  where  a  complaint  is  amended 
at  the  trial,  the  court  has  the  same  right 
to  exercise  its  discretion  in  determining 
the  time  within  which  an  answer,  or  a  de- 
murrer thereto,'  shall  be  filed,  as  it  has  in 
determining  whether  it  will  allow  the 
amended  pleading;  and  its  discretion  ia 
not  abused  by  refusing  time  within  which 
the  plaintiff  shall  demur  to  an  amended 
pleading,  where  no  ground  of  demurrer  ap- 
pears. Schultz  V.  McLean,  109  Cal.  437; 
42  Pac.  557. 

Disposition  of  demurrer.  Where  the  rec- 
ord does  not  show  that  a  demurrer  to  the 
answer  was  disposed  of,  a  judgment  in 
favor  of  the  plaintiff  is  irregular.  Huse 
V.  Moore,  20  Cal.  115.  The  trial  of  the 
case  while  a  demurrer  to  the  answer  is 
still  pending  amounts  only  to  an  irregu- 
larity not  justifying  the  granting  of  a  new- 
trial.    Calderwood  v.  Tevis,  23  Cal.  335. 


Legislation  §  443.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  50  (New  York  Code, 
§  152),  as  amended  bv  Stats.  1865-66,  p.  702, 
which  read:  "When  tne  answer  contains  matter 
in  avoidance,  or  a  counterclaim,  the  plaintiff 
may,  within  the  number  of  days  in  which  the 
defendant  is  by  the  summons  required  to  answer, 
to  be  computed  from  the  time  of  the  service  of 
a  copy  of  such  answer,  demur  to  the  same  for 
insufficiency,  stating  therein  the  grounds  of  such 
demurrer;  and  when  the  answer  contains  a  cross- 
complaint,  the  parties  against  whom  relief  is 
therein  demanded  may  demur  or  answer  thereto 
within  the  like  period.  Sham  and  irrelevant 
answers  and  defenses,  and  so  much  of  any  plead- 
ing as  may  be  irrelevant,  redundant,  or  imma- 
terial, may  be  stricken  out,  upon  motion,  upon 
such  terms  as  the  court  in  its  discretion  may 
impose."  When  enacted  in  1872,  §  443  read: 
"The  plaintiff  may,  within  the  same  length  of 
time  after  service  of  the  answer  as  the  defendant 
is  allowed  to  answer  after  service  of  summons, 
demur  to  the  answer  of  the  defendant." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  301, 
adding  the  clause,  at  the  end  of  the  section,  "or 
to  one  or  more  of  the  several  defenses  or  coun- 
terclaims set  up  in  the  answer." 

3.  Amendment  by  Stats.  1901,  p.  134;  un- 
constitutional.     See  note  ante.  §  5. 

4.  Amended  by  Stats.  1907,  p.  706;  the  code 
commissioner  saying,  "The  time  within  which  the 
plaintiff  may  demur  to  the  answer  is  more  defi- 
nitely  and  clearly  fixed  by  the  amendment.'' 

§  444.     Grounds  of  demurrer.     The  demurrer  may  be  taken  upon  oue  or 
more  of  the  following  grounds : 

1.  That  several  causes  of  counterclaim  have  been  improperly  joined,  or 
not  separately  stated ; 

2.  That  the  answer  does  not  state  facts  sufficient  to  constitute  a  defense  or 
counterclaim ; 

3.  That  the  answer  is  ambiguous ; 

4.  That  the  answer  is  unintelligible ;  or 

5.  That  the  answer  is  uncertain. 


Whether  a  demurrer  to  a  separate  defense  may 
be  carried  back  to  the  complaint  where  the  de- 
fendant has  also  pleaded  a  general  denial.  See 
note  26  L.  R.  A.   (X.  S.)   117. 


Grounds  of  demurrer.     Ante,  §  430. 

Legislation  g  444.    1.  Enacted  March  11,  1872. 

2.  .\m.ndment  by  Stats.  1901,  p.  134;  un- 
constitutional.     Sec  note  ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  707,  (1)  add- 
ing the  words  "or  not  separately  stated,"  at  the 
end  of  subd.  1;  and  (2)  rearranging  subd.  3, 
and  making  subds.  4  and  5.  the  original  subd.  3 
readinir.  "That  the  answer  is  ambiguous,  unin- 
telligible,   or   uncertain." 


Grounds  of  demurrer.  A  demurrer  may- 
be made  to  a  counterclaim,  on  the  ground 
that  it  does  not  state  facts  sufficient  to 
sustain  it.  Bliss  v.  Sueath,  lia  Cal.  526; 
51  Pac.  S48.  In  an  action  to  recover  per- 
sonal property,  an  answer  which  denies 
that  the  plaintiff  is  the  owner  of  the  prop- 
erty  is   not   demurrable   upon   the   ground 


383 


DEMURRER — GROUNDS    OF — MUST    BE    DEFINITE — WAIVER. 


§444 


that  it  does  not  state  facts  sufficient  to 
constitute  a  defense.  Carman  v.  Ross,  G4 
Cal.  249;  29  Pac  510.  An  objection  to  an 
answer,  on  the  ground  that  separate  de- 
fenses are  not  separately  stated,  cannot  be 
taken  by  demurrer:  such  defect  can  be 
reached  only  by  motion  to  strike  out,  or  by 
sonie  other  appropriate  proceedinji;.  llagolv 
V.  Ha<i;ely,  G8  Cal.  34 S;  9  Pac.  30.5.  An  ob- 
jection to  an  answer  for  uncertainty  should 
be  taken  by  demurrer.  Ilarnej'  v.  Mc- 
Leran,  66  Cal.  34;  4  Pac.  884.  An  an- 
swer is  bad  for  amtnp;uity,  where  it  is  • 
impossible  to  determine  therefrom  what 
portion  is  intended  to  constitute  a  lejral 
defense  to  the  action,  and  what  portion 
a  cross-complaint.  O'Connor  v.  Frasher,  53 
Cal.  43.5.  The  answer  of  a  sheriff,  in  an 
action  for  damages  for  seizing  goo<ls, 
claimed  by  the  plaintiff,  under  a  writ  of  at- 
tachment asjainst  his  vendor,  which  denies 
the  plaintiff's  title,  and  pleads  that  the 
sale  to  him  was  pretended,  false,  and 
fraudulent,  and  made  with  the  purpose  and 
intent  to  hinder,  delay  and  defraud  his 
creditors,  is  demurraVjle  on  account  of  the 
general  allegation  of  fraud.  Sukeforth  v. 
Lord,  87  Cal.  399;  25  Pac.  497.  In  an  ac- 
tion to  determine  conflicting  claims  to 
state  lands,  the  defendant  is  piractically 
out  of  court,  where  a  demurrer  is  sustained 
on  the  ground  that  the  answer  does  not 
show  that  he  is  entitled  to  purchase.  Eam- 
sey  V.  Flournoy,  58  Cal.  260.  The  plain- 
tiff is  privileged  to  take  advantage  of  the 
insufficiency  of  the  answer  by  demurrer  or 
by  motion  for  judgment,  either  of  which, 
If  finally  successful,  is  sufficient  as  a  foun- 
dation for  a  judgment.  Le  Breton  v.  Stan- 
ley Contracting  Co.,  15  Cal.  App.  429;  114 
Pac.  1028. 

Demurrer  must  be  definite.  A  demurrer 
will  be  disregarded,  where  it  is  so  indefinite 
that  it  is  imi>ossib]e  to  determine  there- 
from to  what  portion  of  the  answer  it  re- 
lates. Carman  v.  Eoss,  64  Cal.  249,  29  Pac. 
510.  The  demurrer  must  be  directed  to 
the  whole  of  the  pleading,  or  to  a  par- 
ticular and  sejiarate  count,  or  statement  of 
a  cause  of  action  or  defense:  a  demurrer 
to  all  of  the  defendant's  answer  after  a 
certain  line  and  page  is  insufficient  (Locke 
V.  Peters,  65  Cal.  161;  3  Pac.  657);  and  a 
demurrer  to  the  whole  answer  is  improper, 
though  good  as  against  a  counterclaim, 
where  the  answer  also  contained  a  denial 
constituting  a  valid  defense  to  the  action. 
Eich  v.  Greeley,  112  Cal.  171;  44  Pac.  483. 

Waiver  of  demurrer.  Filing  an  answer 
to  a  cross-complaint  waives  a  demurrer 
previously  filed  thereto.  Booth  v.  Chap- 
man, 59  Cal.  149.  The  failure  of  the  court 
to  pass  upon  a  demurrer  to  an  answer  is 
not  an  error  of  which  the  defendant  can 
complain,  where  it  does  not  attend  the 
trial,  nor  object  to  a  trial  at  the  time,  and 
the  plaintiff  insists  upon  trying  the  issues 
of  fact:  Fincher  v.  Malcomson,  96  Cal.  38; 
30  Pac.  835;  and  see  McCarthy  v.  Yale,  39 


Cal.  5S5;   Pilcox  V.   Lang,  78   Cal.   118;   20 
Pac.  297. 

Waiver  by  failure  to  demur.  Inconsis- 
tent defenses  are  waived,  if  not  objected  to 
by  demurrer  or  motion  to  strike  out.  Uri- 
dias  v.  Morrell,  25  Cal.  31;  Klink  v.  Cohen, 
13  Cal.  023.  An  objection  to  an  answer 
for  uncertainty  in  denial  is  waived  by  a 
failure  to  demur  therefor.  Harney  v.  Mc- 
Leran,  6G  Cal.  34;  4  Pac.  884.  An  objec- 
tion that  matter  alleged  does  not  consti- 
tute a  counterclaim,  and  is  not  recognized 
by  law  as  a  defense,  is  not  waived  by  a 
failure  to  demur,  but  may  V)e  taken  at  any 
time.  MacDougall  v.  Maguire,  35  Cal.  274; 
95  Am.  Dec.  98.  A  counterclaim  barred 
by  the  statute  of  limitations  must  be  spe- 
cially pleaded  to  by  demurrer  on  this 
ground,  or  it  is  waived,  and  a  judgment 
in  favor  of  the  counterclaim  will  be  af- 
firmed on  apiieal,  if  the  record  does  not 
show  that  the  statute  was  relied  upon  as 
a  defense.  Bliss  v.  Sneath,  119  Cal.  526; 
51  Pac.  848. 

CODE  COMMISSIONERS'  NOTE.  When  in- 
fonsistpnt  defenses  are  .set  up,  the  defect  must  be 
reached  by  motion  to  strike  out  one  of  the  de- 
fenses. If  a  motion  to  strike  out  will  not  reach 
or  cure  the  defect,  then  the  objection  may  be 
reached  by  demurrer;  and  if  no  oVjjection  be  taken 
to  the  answer  on  this  ground,  defendant,  on  the 
trial,  may  rely  on  any  of  his  defenses,  as  under 
the  old  system.  Klink  v.  Cohen,  1.3  Cal.  623; 
affirmed  in  Uridias  v.  Morrell,  25  Cal.  37;  see 
also  Arnold  v.  Dimon,  4  Sandf.  C80,  and  cases 
cited  in  Van  Santvoord's  Pleading,  p.  287.  But 
a  demurrer  cannot  be  stricken  out  as  a  sham  or 
irrelevant  defense;  it  can  only  be  disposed  of  in 
the  usual  way.  Larco  v.  Casaneuava,  30  Cal.  560. 
Where  the  plaintiff  claims  that  all  the  denials  are 
bad,  if  the  answer  contains  no  new  matter,  he 
may  test  the  sufficiency  of  the  denials  by  a  mo- 
tion for  .iuderaent  upon  the  pleadings,  or  by  mo- 
tion to  strike  out  the  answer  on  the  ground  that 
it  is  sham  and  irrelevant.  If  some  of  the  denials 
are  good,  and  the  others  bad,  he  may  move  to 
strike  out  the  latter.  Answers  consisting  of 
denials,  which  do  not  e-xplicitly  traverse  the  mate- 
rial allegations  of  the  complaint,  we  hold  so  far 
sham  and  irrelevant  within  the  meaning  of  the 
statute.  Gay  v.  Winter.  34  Cal.  161;  see  also 
People  V.  McCumber,  18  N.  Y.  315;  72  Am.  Dec. 
515.  Though  certain  defenses,  by  way  of  set-off, 
are  pleaded  in  the  answer  in  a  very  informal  and 
inartificial  manner,  yet,  if  the  facts  showing  that 
they  constitute  valid  claims  against  the  plaintiff 
are  sufficiently  stated,  the  defense  ought  not  to 
be  struck  out.  Wallace  v.  Bear  Kiver  etc.  Min- 
ing Co.,  18  Cal.  461.  An  answer  without  a  veri- 
fication to  a  complaint,  duly  verified,  may  be 
stricken  out  on  motion,  and  judgment  asked  as 
u;jon  a  default.  Drum  v.  Whiting,  9  Cal.  422. 
The  motion  in  this  case  to  strike  out  the  answers, 
because  denying  on  information  and  belief,  was 
properly  overruled.  Comerford  v.  Dupuy,  17  Cal. 
308.  A  verified  answer,  which  in  any  part  con- 
tains a  distinct  denial  of  a  fact  material  to  plain- 
tiff's recovery,  cannot,  no  matter  how  defective 
it  may  be.  be  treated  as  a  nullity,  so  as  to 
entitle  plaintiff  to  judgment  on  the  pleadings. 
Ghirardelli  v.  McDerraott,  22  Cal.  539.  When 
jjlaintiff  moves  an  affidavit  to  strike  out  a  defense 
as  "sham,"  the  defendant  can  defeat  the  motion 
by  making  aftidavit  that  his  defense  is  made  in 
good  faith.  Gostorfs  v.  Taaffe,  18  Cal.  385;  Wed- 
derspoon  v.  Rogers.  32  Cal.  569,  and  cases  there 
cited.  Inability  of  counsel  to  obtain  defendant's 
verification  in  time  cannot  avail  in  resisting  a 
motion  to  strike  out.  and  for  judgment  after  the 
answer  is  filed.  Drum  v.  Whiting,  9  Cal.  422. 
If  an  answer  is  filed,  raising  an  issue,  and  a  trial 


§446 


VERIFICATION  OF  PLEADINGS. 


384 


is  had.  and  witnesses  are  sworn  and  examined, 
and  the  court  takes  the  case  into  consideration, 
it  cannot  then  strike  out  the  answer  of  the  de- 
fendant and  enter  his  default.  Abbott  v.  Doug- 
lass, 2S  Cal.  295.  For  what  have  been  held  to 
be  sham  and  irrelevant  defenses,  see  McDonald  v. 
Bear  River  etc.  Mining  Co.,  15  Cal.  145;  Weimer 
V.  Lowery.  11  Cal.  104;  Bates  v.  Sierra  Nevada 
etc.  Mining  Co.,  18  Cal.  171.  Defendants  were 
sued  on  a  note.      The  complaint  was  not  verified. 


but  set  out  the  note.  Defendants  pleaded  pay- 
ment. Plaintiff,  on  affidavits  that  the  plea  was 
false  and  p'caded  in  bad  faith,  moved  to  strike 
out  the  answer,  and  for  judgment,  which  was 
granted.  The  ruling  of  the  court  was  right. 
"Sham"  answers  and  defenses  are  such  as  are 
good  in  form,  but  false  in  fact,  and  pleaded  in 
bad  faith;  and  that  such  answers,  when  consist- 
ing of  affirmative  defenses,  should  be  stricken  out. 
Gostorfs  V.  Taafife,  18  Cal.  385. 


CHAPTER  VI. 

VERIFICATION  OF  PLEADINGS. 


§  44  6.     Verification  of  pleadings. 

§  447.     Copy   of   written   instrument   contained   in 

complaint    admitted,    unless    answer    is 

verified. 
I  448.     When   defense    is    founded    on   written   in- 


strument set  out  in  answer,  its  execu- 
tion   admitted,    unless    denied   by   plain- 
tiff under  oath. 
§  449.     Exceptions    to    rules    prescribed    by    two 
preceding   sections. 


§  446.  Verification  of  pleadings.  Every  pleading^  must  be  subscribed  by 
the  party  or  liis  attorney;  and  when  the  complaint  is  verified,  or  when  the 
state,  or  any  officer  of  the  state,  in  his  official  capacity,  is  plaintiff,  the  an- 
swer must  be  verified,  unless  an  admission  of  the  truth  of  the  complaint 
might  subject  the  party  to  a  criminal  prosecution,  or,  unless  an  officer  of  the 
state,  in  his  official  capacity,  is  defendant.  In  all  cases  of  a  verification  of 
a  pleading,  the  affidavit  of  the  party  must  state  that  the  same  is  true  of  his 
own  knowledge,  except  as  to  the  matters  wdiich  are  herein  stated  on  his 
information  or  belief,  and  as  to  those  matters  that  he  believes  it  to  be  true ; 
and  where  a  pleading  is  verified,  it  must  be  by  the  affidavit  of  a  party,  unless 
the  parties  are  absent  from  the  county  w^here  the  attorney  has  his  office, 
or  from  some  cause  unable  to  verify  it,  or  the  facts  are  within  the  knowledge 
of  his  attorney  or  other  person  verifying  the  same.  When  the  pleading  is 
verified  by  the  attorney,  or  any  other  person  except  one  of  the  parties,  he 
must  set  forth  in  the  affidavit  the  reasons  why  it  is  not  made  by  one  of  the 
parties.  When  a  corporation  is  a  party,  the  verification  may  be  made  by 
any  officer  thereof.  When  the  state,  or  any  county  thereof,  or  any  officer 
of  the  state,  or  of  any  county  thereof,  in  his  official  capacity  is  plaintiff,  the 
complaint  need  not  be  verified. 


Attorneys'  power  to  bind  client.    Ante,  §  283. 

Verifying  accusation  for  disbarment  of  attor- 
ney.    S.-e  ante,  §  291. 

Petition  by  creditor  to  appraise  homestead 
must  be  verified.    See  Civ.  Code,  §  1246. 

Legislation  §  446.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  51  (New  York  Code, 
§  156),  as  amended  bv  Stats.  1862,  p.  562, 
Practice  Act,  §  52  (New  York  Code,  §  157)  ;  as 
amended  by  Stats.  1862,  p.  562,  and  Practice  Act, 
§  55  (New  York  Code,  §  157).  These  sections 
read:  "§51.  Every  pleading  shall  be  subscribed 
by  the  party,  or  his  attorney,  and  when  the  com- 
plaint is  verified  by  affidavit,  the  answer  shall 
be  verified  also,  except  as  provided  in  the  next 
•action."  "§  52.  The  verification  of  the  answer, 
required  in  the  last  section,  may  be  omitted  when 
an  admission  of  the  truth  of  the  complaint  might 
subject  the  party  to  prosecution  for  felony  or 
misdemeanor."  "§  55.  In  all  cases  of  the  veri- 
fication of  a  pleading,  the  affidavit  of  the  party 
shall  state  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  which  are 
therein  stated  on  his  information  or  belief,  and 
as  to  those  matters,  that  he  believes  it  to  be 
true.  And  where  a  pleading  is  verified,  it  shall 
be  by  the  affidavit  of  the  party,  unless  he  be 
absent  from  the  county  whtre  the  attorney  re- 
sides, or  from  some  cause  unable  to  verify  it,  or 
the  facts  are  within  the  knowledge  of  his  attor- 
ney,  or  other  person   verifying   the   same.      When 


the  pleading  is  verified  by  the  attorney,  or  any 
other  person  except  the  party,  he  shall  set  forth 
in  the  affidavit  the  reasons  why  it  is  not  made 
by  the  party.  When  a  corporation  is  a  party, 
the  verification  may  be  made  by  any  officer 
thereof;  or  when  the  state,  or  any  officer  thereof 
in  its  behalf,  is  a  party,  the  verification  may  be 
made  by  any  person  acquainted  with  the  facts, 
except  that  in  actions  prosecuted  by  the  attorney- 
general  in  behalf  of  the  state  the  pleadings  need 
not,   in  any  case,   be  verified." 

3.  Amendment  by  Stats.  1901,  p.  134;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  190T,  p.  707;  the  code 
commissioner  saying,  "The  words  'where  the 
attorney  had  his  office'  have  been  substituted  for 
the  words  'where  the  attorney  resides,'  and  the 
last   sentence  has  been  added." 

Necessity  for  and  object  of  verification. 

The  requirement  as  to  the  verification  of 
the  pleadings  must  be  complied  with,  to 
give  validity  to  acts  pursuant  thereto. 
Wall  v.  Mines,  l.SO  Cal.  27;  62  Pac.  38(3. 
The  object  of  the  verification  is  to  insure 
good  faith  in  the  averments  of  the  party. 
Patterson  v.  Ely,  19  Cal.  28;  Sileox  v. 
Lang,  78  Cal.  118;  20  Pac.  297.  The_  proper 
practice,  where  the  answer  is  unverified,  ia 


385 


VERIFICATION — SUFFICIENCY,  ETC. — BY   CORPORATION. 


§446 


to  interjiose  a  motiou  to  strike  from  the 
files,  for  ju(li>inent  ou  the  pleailinjjs,  or  for 
judgment  for  want  of  answer,  llearst  v. 
ilart,  128  Cal.  327;  60  Pae.  84(5;  and  see 
Drum  V.  Whitino:,  1)  Cal.  -!22;  McCullouiih 
V.  Clark,  41  Cal.  298.  Upon  the  filing  of 
an  amended  comjilaint,  the  averments  of 
the  orijjinal  cannot  be  used  to  disprove 
those  of  the  amended  complaint,  although 
by  the  verification  of  the  original  the 
plaintiff  makes  the  statements  his  own. 
Johnson  v.  Powers,  ti5  Cal.  179;  o  P:u',  625. 

Pleadings  which  must  be  verified.  .\ 
petition  for  habeas  corpus  must  be  verified. 
Ex  parte  Walpole,  84  Cal.  .384;  24  Pac.  308. 
Exhibits  consisting  of  pleaiiings  and  pro- 
ceedings in  an  action  brought  in  the  name 
of  the  United  States  need  no  further  veri- 
fication than  the  certificate  of  the  clerk 
of  the  circuit  court  of  the  United  States. 
Ely  v.  Frisbie,  17  Cal.  2-50.  This  section 
applies  only  to  the  verification  of  plead- 
ings: a  claim  of  lien  is  not  a  pleading. 
Parke  &  Lacv  Co.  v.  Inter  Nos  Oil  etc.  Co., 
147  Cal.  490;'  82  Pac.  51. 

When  answer  must  be  verified.  In  an 
action  on  a  promissory  note,  where  the 
complaint  is  verified,  a  sworn  answer  is 
necessary.  Brooks  v.  Chilton,  6  Cal.  640. 
An  answer  without  a  verification  may  be 
stricken  out  on  motion,  v/here  the  com- 
plaint is  duly  verified.  Drum  v.  Whiting, 
9  Cal.  422.  But  where  the  answer  is  veri- 
fied, and  denies  a  single  fact  material  to  a 
recovery  by  the  plaintiff,  it  cannot  be 
treated  as  a  nullity.  Ghirardelli  v.  McDer- 
mott,  22  Cal.  539.  In  condemnation  pro- 
ceedings brought  in  the  name  of  a  county, 
the  answer  need  not  be  verified.  Monterey 
County  V.  Gushing,  83  Cal.  507;  23  Pac.  700; 
San  Francisco  v.  Itsell,  80  Cal.  57;  22  Pac. 
74.  Correcting  the  answer,  in  regard  to 
paging  and  numbering  pleadings,  to  con- 
form with  a  rule  of  the  court,  does  not 
modify  or  change  its  denials  or  averments 
so  as  to  require  verification,  and,  when  the 
answer  is  refiled  by  leave  of  court,  it  can- 
not be  stricken  out.  Buell  v.  Beckwith,  59 
Cal.  480. 

Waiver  of  verification.  A  waiver  of  the 
verification  of  the  answer,  where  the  com- 
plaint is  verified,  does  not  admit  the  suffi- 
ciency of  the  answer,  nor  dispense  with  the 
necessity  of  a  specific  denial.  Harney  v. 
Porter,  62  Cal.  511.  A  plaintiff  will  be 
held  to  have  waived  all  objection  to  the 
verification,  by  a  failure  to  except  to  it  at 
the  proper  time,  and  will  not  be  allowed 
to  raise  the  point  for  the  first  time  on  ap- 
peal. McCullough  V.  Clark,  41  Cal.  298; 
San  Francisco  v.  Itsell,  80  Cal.  57;  22  Pac. 
74. 

Sufficiency  of  verification.  The  code 
does  not  require  the  defendant,  when  the 
answer  is  verified,  to  state  in  the  affidavit 
that  he  has  heard  the  foregoing  answer 
read,  and  knows  the  contents  thereof:  the 
matters  stated  on  information  or  belief,  re- 
quired by  the  code,  are  used  in  opposition 
1  Fair. — 25 


to  the  rest  of  the  answer,  that  is,  to  the 
matters  stated  positively.  Fleming  v.  Wells, 
65  Cal.  336:  4  I'ac.  197.  A  verilication  is 
sufficient,  which  states  that  the  party  has 
read  the  foregoing  petition,  and  is  ac- 
(piainted  with  the  contents  thereof,  and 
the  same  is  true,  of  his  own  knowledge 
and  belief:  the  words  ''and  belief"  are 
mere  surplusage.  Seattle  Coal  etc.  Co.  v. 
Thomas,  57  Cal.  197.  A  statement  in  the 
verification,  that  "the  matters  set  forth  in 
the  foregoing  answer  are  true,"  is  the 
equivalent  of  a  statement  that  "the  fore- 
going answer  is  true."  Fleming  v.  Wells, 
65  Cal.  336;  4  Pac.  197.  A  verification, 
that  the  foregoing  complaint  is  true,  of 
liis  own  knowledge,  but  not  containing 
the  statement  that  he  has  read  the  com- 
j)laint,  or  heard  the  complaint  reail.  and 
knows  the  contents  thereof,  is  sufficient 
(Patterson  v.  Ely,  19  Cal.  28;  Fleming  v. 
Wells,  65  Cal.  336;  4  Pac.  197);  as  is  also 
a  verification,  although  not  in  the  exact 
language  of  the  statute,  stating  "that  the 
foregoing  answer  is  true,  of  this  defend- 
ant's own  knowle<lge,  except  as  to  the 
matters  therein  stated  to  be  upon  the  in- 
formation and  belief  of  defendants,  and 
as  to  those  matters  he,  this  defendant, 
believes  the  same  to  be  true."  Ely  v. 
Frisbie,  17  Cal.  250;  Patterson  v.  Ely,  19 
Cal.  28;  Kirk  v.  Rhoades,  46  Cal.  398. 

Verification  upon  information  and  belief. 
The  verification  of  a  petition  in  insolvency, 
upon  information  and  belief,  is  sufficient, 
though  the  statute  does  not  prescribe  the 
form  of  the  verification,  since,  where  there 
are  several  creditors  having  several  debts, 
some  of  the  matters  must  necessarily  be 
stated  upon  the  information  and  belief  of 
each  of  the  affiants.  Weight  v.  Cohn,  88 
Cal.  328;  26  Pac.  600.  In  an  accusation 
to  disbar  an  attorney,  a  verification,  by 
affidavit  made  upon  the  information  and 
belief  of  a  person,  without  explanation 
why  it  was  not  made  by  one  of  the  in- 
formants, and  without  stating  any  other 
reason  why  he  makes  it,  is  insufficient. 
In  re  Hotehkiss,  58  Cal.  39.  If,  in  the 
body  of  an  answer,  no  fact  is  stated  upon 
information  and  belief,  the  verification  is 
a  positive  affirmance  of  the  truth  of  the 
allegations  of  the  answer.  Christopher  v. 
Condogeorge,  128  Cal.  581;  61  Pac.  174; 
Patterson  v.  Ely,  19  Cal.  28. 

Verification  by  one  co-party.  A  verifica- 
tion by  one  co-plaintiff  or  co-defendant  is 
a  sufficient  verification.  Patterson  v.  Ely, 
19  Cal.  28;  Claiborne  v.  Castle,  98  Cal.  30; 
32  Pac.  807;  Butterfield  v.  Graves,  138  Gal. 
155;  71  Pac.  510.  Where  there  is  but  one 
defendant,  and  the  record  states  that  the 
answer  was  verified,  it  will  be  inferred 
therefrom  that  the  verification  was  by 
such  defendant.  Roberts  v.  Eldred,  73  Cal. 
394;  15  Pac.  16. 

Where  corporation  Is  party.  The  veri- 
fication of  a  petition  by  a  corporation, 
signed  bv  one  who  therein  states  that  he 


§446 


VERIFICATION  OF  PLEADINGS, 


386 


is  the  vice-president  of  the  corporation,  is 
suflScient.  Alvord  v.  Spring  Vallev  Gold 
Co.,  106  Cal.  574;  40  Pac.  27. 

Verification  by  attorney.  An  attorney 
or  other  person  can  only  verify  by  reason 
of  the  existence  of  one  of  these  conditions, 
viz.,  1.  The  absence  of  the  party  from  the 
county  where  the  attorney  has  his  office; 
2.  The  inability  of  the  party,  from  some 
other  cause,  to  verify  it;  and  3.  That  the 
facts  are  within  the  knowledge  of  the  at- 
torney or  other  person  verifying  the  same; 
hence,  under  the  third  condition,  an  attor- 
ney or  other  person  must  have  personal 
knowledge  of  the  facts,  and  it  follow?, 
necessarily,  that  he  must  verify  from  such 
knowledge,  and  not  from  information  and 
belief  (Silcox  v.  Lang,  78  Cal.  118;  20 
Pac.  297;  Columbia  Screw  Co.  v.  Warner 
Lock  Co.,  138  Cal.  445;  71  Pac.  498);  and 
the  affidavit  of  an  attorney,  which  does 
not  state  that  the  facts  are  within  his 
knowledge,  but  merely  that  the  facts  are 
more  fully  known  to  him  than  to  the  de- 
fendants, is  insufficient,  under  this  third 
condition.  Silcox  v.  Lang,  78  Cal.  118;  20 
Pac.  297.  A  verification  by  an  attorney, 
setting  forth  the  fact  that  he  is  a  resi- 
dent of  the  county,  and  that  plaintiffs  are 
absent  from  such  county,  is  sufficient  to 
authorize  the  verification:  it  gains  no  ad- 
ditional force  by  the  addition,  that  it  is 
for  that  reason  that  it  is  made  by  the  at- 
tornev.  Stephens  v.  Parrish.  83  Cal.  561; 
23  Pac.  797. 

Verification  at  trial.  Where  the  com- 
plaint is  verified,  it  is  not  error  to  permit 
the  defendant  to  verify  his  answer  on  the 
day  of  trial,  unless  it  is  shown  that  the 
plaintiff  is  thereby  taken  by  surprise. 
Angier  v.  Masterson,  6  Cal.  61.  Where 
the  court  refused  to  permit  the  answers  to 
be  verified,  and  struck  them  out  without 
notice,  when  the  action  came  to  trial,  more 
than  six  months  after  they  were  filed,  and 
after  depositions  had  been  taken,  there 
was  error  and  an  abuse  of  discretion. 
Lattimer  v.  Ryan,  20  Cal.  628.  Where, 
by  mistake,  a  copy  of  a  verified  answer 
was  filed,  and  no  objection  was  raised 
thereto  until  the  close  of  the  plaintiff's 
evidence,  there  was  such  an  abuse  of  dis- 
cretion in  the  court  in  refusincr  to  permit 
the  answer  to  be  verified  and  filed  as  to 
require  a  reversal  of  the  judgment.  Ar- 
rington  v.  Tupper,  10  Cal.  464. 

Wlio  may  take  jurat.  A  county  re- 
corder, having  authority  to  take  an  affi- 
davit to  be  used  in  any  court  of  justice, 
has  authority  to  take  a  jurat,  which  is,  in 
form  and  substance,  an  affidavit  (Pfeiffer 
v.  Riehn,  13  Cal.  643);  and  the  district  at- 
torney, also,  has  authority  to  take  a  veri- 
fication of  the  answer.  Haile  v.  Smith, 
128  Tal.  415;  60  Pac.  1032. 

Pleading  must  be  signed.  By  the  pro- 
visions of  this  section,  every  pleading 
must  be  subscribed  by  the  plaintiff  or  his 
attorney;  hence,  all  pleadiners  must  be  in 
writing  or  printed:   the  party  is  precluded 


from  making  any  oral  pleading  whatever. 
People  V.  Superior  Court,  114  Cal.  466;  46 
Pac.  383.  Thus,  a  stipulation,  entered  in 
the  minutes,  waiving  the  plea  of  the  stat- 
ute of  limitations  set  up  in  the  answer, 
does  not  amount  to  an  amendment  of  the 
answer  so  as  to  render  a  finding  on  snch 
issue  unnecessary.  Spreckels  v.  Ord.  72 
Cal.  86;  13  Pac.  158.  An  attorney  in  fact, 
who  is  not  an  attorney  at  law,  cannot  sign 
his  name  to  the  complaint,  for  his  prin- 
cipal, as  "plaintiff's  attorney":  an  action 
so  begun  is  void.  Dixey  v.  Pollock.  8  Cal. 
570.  Where  the  attorne.v's  name  is  printed, 
instead  of  v.-ritten.  at  the  end  of  the  com- 
plaint, the  judgment  is  not  thereby  ren- 
dered void  or  erroneous.  Hancock  v. 
Bowman,  49  Cal.  413.  Where  the  court  al- 
lowed an  attorney  to  insert  an  omitted 
signature  to  an  amended  complaint  to 
which  an  answer  had  been  filed,  the  de- 
fendant is  not  entitled  as  of  right  to  demur 
or  to  answer  anew.  Smith  v.  Dorn,  96  Cal. 
73;  30  Pac.  1024.  Where  an  attachment 
was  issued  on  a  complaint,  made  out  on 
a  printed  form,  and  the  blanks  were  filled 
in  by  the  clerk  of  the  court  at  the  re- 
quest of  the  plaintiff,  but  no  name  was 
signed  to  it  until  the  next  day,  and  after 
other  attachments  were  issued  on  the  same 
property,  when  it  was  signed  by  the  clerk, 
with  the  name  of  the  plaintiff's  attorney', 
the  action  of  the  clerk,  though  not  correct, 
is  merelv  an  irregularitv.  Dixev  v  Pol- 
lock, 8  Cal.  570. 

Manner  and  sufficiency  of  verification  of  plead- 
ing by  corporation.  See  note  Ann.  Cas.  1913A, 
212. 

CODE  COMMISSIONERS'  NOTE.  The  pro- 
visions of  §  2  of  an  act  relating:  to  pleading:s  in 
behalf  of  the  state,  or  officers  thereof,  have  been 
carried  into  the  preceding  section.  Stats.  1864, 
p.  261. 

1.  What  is  a  sufficient  verification.  Where,  in 
ejectment,  the  verification  to  the  complaint,  made 
by  one  of  the  plaintiffs,  is,  that  "the  foregoing 
complaint  is  true  of  his  own  knowledge,  except 
as  to  the  matters  therein  stated  on  the  informs 
tion  and  belief  of  the  plaintiffs,  and  as  to  the 
matters  he  believes  it  to  be  true."  the  verifica- 
tion. thou?-h  it  does  not  follow  the  precise  form 
of  the  statute,  yet  is  sufficient,  although  the  per- 
son making  the  oath  does  not  state  that  he  has 
read  the  complaint,  or  heard  the  complaint  read, 
and  knows  the  contents  thereof.  Copies  of  the 
pleadings  and  proceedinss  in  an  action  in  the 
United  States  circuit  court,  which  were  attached 
to  an  answer  as  exhibits,  need  no  further  verifi- 
cation than  what  arises  from  the  averment  in  the 
answer,  that  they  are  such  copies:  no  distinct 
verification  of  them  is  requisite:  were  it  other- 
wise, the  certificate  of  the  United  States  circuit 
court  is  sufficient.  Ely  v.  Frisbie,  17  Cal.  250. 
If  the  pleading  does  not  contain  a  statement  of 
any  matter  on  information  and  belief,  there  need 
be  no  expression  of  belief  in  the  affidavit  as  to 
any  such  matter.  If  he  avers  matters  positively, 
the  verification  will  be  sufficient  if  his  affidavit 
states  that  the  pleading  is  true  of  his  own  knowl- 
edge: if  he  aver  matter  "upon  information  and 
belief,"  or  "upon  information  or  belief."  the  veri- 
fication will  be  sufficient  if  his  affidavit  states 
that  as  to  the  matters  thus  averred  he  believes 
the  pleading  to  be  true.  The  mere  observance 
of  the  precise  letter  of  the  statute  is  not  required. 
It  was  not  necessary  that  the  verification  sho^ild 
have  been  made  by  both  of  the  niaintiffs.  The 
affid.;vif  of  one  of  them  was  sufficient.    Patterson 


387 


VERIFICATION — WRITTEN   INSTRUMENT — WHAT   ADMITTED. 


§447 


V.  Ely,  19  Cal.  28.  Attorney  of  plaintiff,  being 
a  notary  public,  may  attest  the  verification  of  the 
coniijliiiiit.     Kuliland"  V.   Sedgwick,    17  Cal.   123. 

2.  What  is  accomplished  by  verification.  Ob- 
jections to  verification  when  made,  etc.  lly  veri- 
fication of  tho  complaint  the  plaintiff  can  require 
a  sworn  denial,  and  thus  prevent  the  defendant 
from  interposing  a  peneral  denial  in  suits  on 
promissory  notes  or  bills  of  exchange.  Brooks  v. 
Chilton,  6  Cal.  640.  Objection  to  the  want  of 
verification  of  a  complaint,  where  the  same  is  re- 
quired by  the  code,  must  be  taken  either  before 
answer  or  with  answer.  The  filing  of  an  answer 
is  a  waiver  of  the  objection.  Greenfield  v.  Steamer 
Gunnell,  6  (^al.  69.  An  attorney  in  fact,  who  is 
not  an  attorney  at  law,  cannot  sign  his  name  to 
a  complaint  for  his  principal  as  "plaintiff's  at- 
torney," and  an  action  so  attempted  to  lie  com- 
meiiced  is  void,  as  began  without  authority  by  an 
entire  stranger  to  the  plaintiff.  Di.xey  v.  Pollock, 
8  Cal.  .570;  see  Willson  v.  Cleaveland,  HO  Cal. 
192.  An  answer  to  a  verified  complaint  must  be 
verified,  or  it  will  be  stricken  out  on  motion,  and 

§  447.  Copy  of  written  instrument  contained  in  complaint  admitted,  un- 
less answer  is  verified.  When  an  action  is  brought  upon  a  written  instru- 
ment, and  the  complaint  contains  a  copy  of  such  instrument,  or  a  copy  is 
annexed  thereto,  the  genuineness  and  due  execution  of  such  instrument  are 
deemed  admitted,  unless  the  answer  denying  the  same  be  verified. 

Denial  of  written  instrument  under  oath.  See  that  the  representatives  of  the  deceased 
post,  §  887. 

Legislation  §  447.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §53,  which  had  (1)  the 
word  "contained"  instead  of  "contains"  and  (2) 
the   Words   "shall  be"  instead  of  "are." 


an  application  for  a  judgment  as  upon  default 
may  be  made  at  the  same  time;  but  the  answer 
need  not  be  verified  when  the  defendant  would  bn 
excused  from  testifying  as  a  witness  to  the  truth 
of  any  matter  denied  by  such  answer.  Drum  v. 
Whiting.  9  Cal.  -122. 

3.  At  what  times  verification  may  be  made.  To 
a  complaint  verified,  the  defendant  filed  a  copy 
of  the  original  verified  answer  by  mistake;  deposi- 
tions were  taken  under  the  pleading,  and  subse- 
quently went  to  trial.  After  the  close  of  the  plain- 
tiff's evidence,  his  counsel  then  for  the  first  time 
brought  the  mistake  to  the  notice  of  the  court  by 
moving  for  judgment  by  default.  He'd:  that  the 
court  should  even  then  have  allowed  ths  defend- 
ant to  have  verified  his  answer.  Arrington  v. 
Tupper,  10  Cal.  464;  see  also  Laltimer  v.  Ryan, 
20  Cal.  628.  When  the  complaint  is  verified,  it 
is  no  error  to  allow  the  defendant  to  verify  his 
answer  before  trial,  unless  such  would  act  as  a 
surprise  to  the  plaintiff.  Angier  v.  Masterson,  6 
Cal.  61. 


Verification  of  answer  ■where  action  is 
on  written  in.strument.  The  genuineness 
and  the  due  execution  of  an  instrument 
are  regarded  as  admitted,  where  a  copy  of 
the  instrument  is  attached  to  the  com- 
plaint and  the  answer  is  not  verified  (Horn 
V.  Volcano  Water  Co.,  13  Cal.  62;  73  Am. 
Dec.  569;  Board  of  Supervisors  v.  Bird,  31 
Cal.  66;  Corcoran  v.  Doll,  32  Cal.  82;  Bur- 
nett V.  Stearns,  33  Cal.  468;  Brown  v.  Wel- 
don,  71  Cal.  393;  12  Pae.  280;  Waldrip 
v.  Black,  74  Cal.  409;  16  Pac.  226;  Ward 
V.  Clay,  82  Cal.  502;  23  Pac.  50,  227;  Bank 
of  Shasta  v.  Boyd,  99  Cal.  604;  34  Pac. 
337;  Countv  Bank  v.  Greenberg,  127  Cal. 
26;  59  Pac.  139;  Hearst  v.  Hart,  128  Cal. 
327;  60  Pac.  846;  Cutten  v.  Pearsall,  146 
Cal.  690;  81  Pac.  25);  and  this  admission 
covers  the  whole  tenor  and  effect  of  the 
instrument  (Burnett  v.  Stearns,  33  Cal. 
468;  Ward  v.  Clay,  82  Cal.  502;  23  Pac. 
50,  227) ;  but,  in  an  action  against  the 
maker  of  a  note,  the  indorsement  thereon 
is  not  admitted  by  a  failure  to  deny  it 
under  oath.  Grogan  v.  Ruckle,  1  Cal.  193; 
Youngs  v.  Bell,  4  Cal.  201;  Hastings  v. 
Dollarhide,  18  Cal.  390;  Mahe  v.  Eevnolds, 
38  Cal.  560.  The  representative  of  the 
estate  of  a  person  whose  signature  appears 
on  a  bond  sued  on  need  not  deny  on  oath 
its  execution  by  the  deceased,  in  order  to 
prevent  its  being  considered  as  admitted : 
the  statute  does  not  extend  to  any  others 
than  those  who  are  alleged  to  have  signed 
the  instrument,  who  are  supposed  to  know 
the  genuineness  of  their  own  signatures, 
and   it  would   be  unreasonable  to  suppose 


party  possess  the  same  knowledge.  Heath 
v.  Lent,  1  Cal.  410.  In  an  action  upon  a 
note  and  mortgage,  the  terms  of  the  prom- 
ise sought  to  be  enforced,  including  the 
kind  of  money  to  be  paid,  must  be  ascer- 
tained and  determined  from  an  inspection 
and  construction  of  the  note;  but  where 
the  note  is  set  out  in  the  complaint,  and 
its  execution  is  not  denied  in  the  answer, 
a  finding  upon  these  matters,  whether  it 
agrees  or  disagrees  with  the  terms  of  the 
note,  is  wholly  nugatory.  Burnett  v. 
Stearns,  33  Cal.  468.  Where  the  answer 
fails  to  deny  under  oath  the  genuineness 
and  due  execution  of  the  note  of  a  cor- 
poration, it  is  not  necessary  to  prove  that 
the  secretary  and  president  of  the  corpora- 
tion, who  signed  the  same,  were  empow- 
ered by  the  corporation  so  to  do.  Smith 
V.  Eureka  Flour  Mills  Co.,  6  Cal.  1. 

CODE  COMMISSIONERS'  NOTE.  The  genu- 
ineness and  due  execution  of  a  note,  a  copy  of 
which  is  incorporated  in  the  comnlaint.  is  ad- 
mitted, if  the  answer  be  not  verified.  Horn  v. 
Volcano  Water  Co.,  13  Cal.  62;  73  Am.  Dec. 
569;  Kinney  v.  Osborne,  14  Cal.  113;  see  also 
Corcoran  v.  Doll,  32  Cal.  83;  Burnett  v.  Stearns. 
33  Cal.  473.  And  if  a  copy  of  a  bond  be  set  out 
in  the  complaint,  an  answer  denying  its  execu- 
tion must  be  verified,  or  else  the  execution  is 
deemed  admitted,  .^iacramento  County  v.  Bird.  31 
Cal.  66.  In  a  suit  brought  against  the  maker 
of  a  promissory  note,  by  a  special  indorsee,  the 
plaintiff  must  prove  the  genuineness  of  the  in- 
dorsement, although  the  defendant  has  not  denied 
the  same  under  oath.  Grogan  v.  Ruckle,  1  Cal. 
158:  citing  also  Hardman  v.  Chamberlin.  Morris 
(Iowa).  104:  see  also  Youngs  v.  Bell,  4  Cal.  201. 
It  is  clear  that  this  section  does  not  extend  to 
.Tuy  other  parties  than  those  who  are  alleged  to 
have  signed  the  instrument.  Where  an  instru- 
ment is  alleged  in  the  complaint  to  have  been 
executed  by  the  intestate,  it  is  not  necessary  that 
his  administrator  should  deny  the  signature  of 
the  intestate  on  oath.  It  must  be  proved.  Heath 
V.  Lent,  1  Cal.  410. 


§448 


VERIFICATION  OF  PLEADINGS. 


388 


§  448.  When  defense  is  founded  on  written  instrument  set  out  in  answer, 
its  execution  admitted,  unless  denied  by  plaintiff  under  oath.  When  the 
defense  to  an  action  is  founded  on  a  written  instrument,  and  a  copy  thereof 
is  contained  in  the  answer,  or  is  annexed  thereto,  the  genuineness  and  due 
execution  of  such  instrument  are  deemed  admitted,  unless  the  plaintiff  file 
with  the  clerk,  within  ten  days  after  receiving  a  copy  of  the  answer,  an 
affidavit  denying  the  same,  and  serve  a  copy  thereof  on  the  defendant. 

891;    Xewsom   v.   Woollacott,   5   Cal.   App. 

722;   91   Pae.   347;   California  Packers   Co. 


Legislations  448.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  54,  as  amended  by 
Stats.  1865-66,  p.  702,  which  read:  "\Yhen  the 
defense  to  an  action  is  founded  on  a  written  in- 
strument, and  a  copy  thereof  is  contained  in  the 
answer,  or  is  annexed  thereto,  the  genuineness 
and  due  execution  of  such  instrument  shall  be 
deemed  admitted  unless  the  plaintiflf  file  with  the 
clerk,  five  days  before  the  commencement  of  the 
term  at  which  the  action  is  to  be  tried,  an  affi- 
davit denying  the  same;  provided,  that  the  due 
execution  of  the  instrument  shall  not  be  deemed 
to  be  admitted  by  a  failure  to  controvert  the 
same  on  oath,  as  prescribed  in  this  and  the  last 
preceding  section,  unless  the  party  controverting 
the  same  is,  upon  demand,  permitted  to  inspect 
the  original  before  filing  such  answer."  When 
§  448  was  enacted  in  1872,  (1)  the  words  "shall 
be"  were  changed  to  "are,"  and  (2)  the  proviso 
was  stricken  out. 

3.   Amended    by  Code  Amdts.  1873-74,  p.  301. 

Execution  and  genuineness  of  instru- 
ment admitted,  unless  denied  under  oath 
by  plaintiff.  The  genuineness  and  the  due 
execution  of  an  instrument,  pleaded  in  the 
answer,  are  admitted  by  the  failure  to  file 
an  affidavit  of  denial.  Sloan  v.  Diggins,  -±9 
Cal.  38;  Clark  v.  Child,  66  Cal.  87;  i  Pac. 
1058;  Eosenthal  v.  Merced  Bank,  110  Cal. 
198;  42  Pac.  640;  Cordauo  v.  Wright,  159 
Cal.  610;  Ann.  Cas.  1912C,  1044;  115  Pae. 
227.  The  admission  is,  that  the  coutraet 
is  what  it  purports  on  its  face  to  be,  and 
that  the  matters  cited  in  it  are  true,  and 
that  it  was  executed  and  delivered  by  the 
parties  who  signed  it,  and  in  the  capacity 
in  which  they  appear  to  have  acted.  Sloan 
V.  Diggins,  49  Cal.  38.  By  "genuineness" 
is  meant  nothing  more  than  that  the  in- 
strument is  not  spurious,  counterfeit,  or 
of  different  import,  on  its  face,  from  the 
one  executed,  but  that  it  is  the  identical 
instrument  executed  by  the  party.  Moore 
V.  Copp,  119  Cal.  429;  51  Pac.  63o\  An  in- 
strument is  genuine  which  is  in  fact  what 
it  purports  to  be;  and  it  is  executed,  only 
when  the  parties  thereto  have  signed, 
sealed,  and  delivered  it  in  the  mode  pre- 
scribed by  law.  Sloan  v.  Diggins,  49  Cal. 
38.  The  execution  of  a  written  instru- 
ment includes  its  delivery.  Clark  v.  Child, 
66  Cal.  87;  4  Pac.  1058.  It  is  not  neces- 
sary to  establish  the  authority  of  an  agent 
or  partner  purporting  to  sign  the  names  of 
the  plaintiffs  to  the  instrument.  Knight  v. 
Whitmore,  125  Cal.  198;  57  Pac.  891.  The 
effect  of  the  admission  of  the  genuineness 
and  the  due  execution  of  the  instrument, 
pleaded  Vjy  the  defendant,  and  not  <lenied, 
is  to  avoid  the  necessity  of  proof  of  its 
genuineness  and  due  execution.  Carpenter 
V.  .Shinners,  108  Cal.  359;  41  Pac.  473; 
Knight  V.  Whitmore,  125  Cal.  198;  57  Pac. 


Merritt  Fruit  Co.,  6  Cal.  App.  507;  92 
Pac.  509.  The  section  applies  only  to  the 
parties  to  the  instrument,  and  not  to 
strangers  thereto  (Marx  v.  Ealey,  6  Cal. 
App.  479;  92  Pac.  519);  it  applies  to  a 
written  contract  set  up  in  the  answer 
(Eeynolds  v.  Pennsjdvania  Oil  Co.,  150  Cal. 
629;  89  Pac.  610),  and  to  a  check  set  forth 
in  the  answer  (Newsom  v.  Woollacott,  5 
Cal.  App.  722;  91  Pac.  347);  but  not  to  a 
letter,  pleaded  in  the  answer,  which  is 
merelv  explanatory  of  a  previous  letter. 
Marx"  v.  Ealey  &  Co.,  6  Cal.  App.  479;  92 
Pac.  519.  A  release  set  up  in  the  answer 
is  admitted  by  a  failure  to  deny  its  exe- 
cution by  affidavit;  hence,  it  must  be  taken 
to  be  w^hat  it  appears  on  its  face  to  be. 
Peterson  v.  Taylor,  4  Cal.  Unrep.  335;  34 
Pac.  724;  Crowley  v.  City  Eailroad  Co.,  60 
Cal.  628;  California  Packers  Co.  v.  Merritt 
Fruit  Co.,  6  Cal.  App.  507;  92  Pac.  5U9; 
Xewsom  v.  Woollacott,  5  Cal.  App.  722;  91 
Pac.  347;  Clark  v.  Child,  66  Cal.  87;  4  Pac. 
1058. 

Defenses  admissible  on  failure  to  deny 
execution.  Although  the  genuineness  and  the 
execution  of  an  instrument  set  up  in  the  an- 
swer are  deemed  admitted  by  a  failure  to 
file  an  affidavit  denying  it,  yet  the  plaintiff 
may  controvert  it  by  evidence  of  fraud, 
mistake,  undue  influence,  compromise,  pay- 
ment, statute  of  limitations,  estoppel,  and 
like  defenses;  in  short,  he  may,  by  evi- 
dence, controvert  the  instrument  upon  any 
and  all  grounds,  other  than  its  due  execu- 
tion or  genuineness.  Moore  v.  Copp,  119 
Cal.  429;  51  Pac.  630;  Eevnolds  v.  Pennsyl- 
vania Oil  Co.,  150  Cal.  629;  89  Pac.  610. 
Evidence  of  mistake,  fraud,  and  the  like, 
may  be  given  to  controvert  the  instrument, 
although  its  genuineness  and  due  execu- 
tion are  admitted.  Newsom  v.  Woollacott, 
5  Cal.  App.  722;  91  Pac.  347;  California 
Packers  Co.  v.  Merritt  Fruit  Co.,  6  Cal. 
App.  507;  92  Pac.  509.  Although  the 
plaintiff'  did  not  file  an  affidavit  denying 
the  genuineness  and  the  due  execution  of 
an  instrument  set  up  in  the  answer,  yet  all 
other  affirmative  allegations  thereof  are 
deemed  denied,  and  the  burden  of  proof  is 
on  the  defendant  to  establish  them.  Clarke 
v.  Fast,  128  Cal.  422;  61  Pac.  72.  The  affi- 
davit is  not  evidence,  but  is  only  a  part  of 
the  pleadings  (Gernon  v.  Sisson,  21  Cal. 
App.  123;  131  Pac.  85);  and  its  terms  and 
legal  effect  are  to  be  determined  from  an 


389 


DEFENSES   ADMISSIBLE — NEW   MATTER — EXCEPTION    TO    RL'LES.  §  449 


inspection  of  tlie  instnimont  itself  (New- 
soni  V.  Woollai-ott,  fj  Cal.  App.  722;  91  Pac. 
347);  it  stands  as  an  exjionent  of  the  facts 
therein  set  out,  to  be  construed  by  the 
court,  and  the  conclusions  of  law  are  to  be 
deduced  therefrom.  Car]>enter  v.  Shinners, 
108  Cal.  359;  41  Pac.  473.  Althou<,'h  an 
affidavit  of  the  plaintiff,  denying  the  genu- 
ineness and  the  due  execution  of  a  note, 
pleaded  in  the  answer,  conies  too  late,  yet 
he  has  the  right  to  controvert  the  note  by 
shov.-ing  any  other  matters  in  confession  or 
avoidance  thereof.  Mvers  v.  Sierra  Valley 
Stock  etc.  Ass'n,  122  Cal.  6(59;  55  Pac.  689. 
The  failure  of  the  plaintiff,  in  an  action 
to  foreclose  a  mortgage,  to  file  an  affidavit 
(ienying  the  genuineness  and  the  due  exe- 
cutiou  of  a  written  instrument,  set  forth  in 
the  answer,  purporting  to  extend  the  time 
of  payment  of  the  note  secured  by  the 
mortgage,  does  not  preclude  proof  by  the 
plaintiff  that  the  extension  of  time  was 
without  consideration.  Brooks  v.  .Tohnson, 
122  Cal.  569;  55  Pac.  423.  An  admission  of 
the  genuineness  of  a  note,  not  purjiorting 
to  have  been  made  by  the  corporation  de- 
fendant, does  not  involve  an'  admission 
that  it  was  a  corporation  note:  it  may  be 
showm  that  it  was  not  authorized  by  the 
directors,  and  was  without  consideration. 
Myers  v.  Sierra  Valley  etc.  Ass'n,  122  Cal. 
669;  55  Pac.  689.  Where  a  copy  of  a  deed 
is  annexed  to  the  answer  of  the  defendant, 
and  the  plaintiff  fails  to  deny  it  by  af3- 
davit,  it  is  not  necessary  for  the  defendant 
to  offer  the  deed  in  evidence.  Eosenthal 
V.  Merced  Bank,  110  Cal.  198;  42  Pac.  640; 
Eianda  v.  V\"atsonville  Water  etc.  Co.,  152 
Cal.  523;  93  Pac.  79.  A  will  set  up  in  an 
answer,  which  is  not  alleged  to  have  been 
admitted  to  probate,  is  not  an  instrument 
up)on  which  any  defense  or  cause  of  action 
can  be  founded;  its  genuineness  and  due 
execution  are  not  admitted  by  the  failure 
of  the  plaintiff  to  deny  the  same  by  affi- 
davit. Estate  of  Christensen,  135  Cal.  674; 
68    Pac.    112.     Where    the    defendant    sets 


forth  in  his  answer  a  written  release  as  a 
bar  to  the  i>laiiififf's  cause  of  action,  and 
on  the  trial  introduces  evidence  showing 
that  such  release  has  never  been  delivered, 
he  is  estopped  from  claiming  the  Vjenefit  of 
the  admission  arising  out  of  the  plaintiff's 
failure  to  deny  by  affidavit  the  genuine- 
ness and  the  due  execution  of  the  instru- 
ment. Clark  v.  ChibI,  66  Cal.  87;  4  Pac. 
105S.  Where  the  defendant,  in  an  action 
upon  an  alleged  joint  contract,  set  up  sepa- 
rate contracts  for  the  same  matter,  the 
plaintiffs,  notwithstanding  their  failure  to 
file  the  affidavit  required  by  this  section, 
are  not  precluded  from  proving  by  parol 
the  contract  alleged  in  the  comjdaint.  Fox 
V.  Stockton  etc.  Agricultural  Works,  73 
Cal.  273;  15  Pac.  430. 

New  matter  as  a  defense  to  instrument. 
While  new  matter  in  an  answer  is  deemed 
controverted  without  any  s]iecial  rejdica- 
tion,  and  the  plaintiff  has  the  right,  while 
not  denying  the  genuineness  and  the  due 
execution  of  the  instrument  set  out  in  the 
answer,  to  show  other  matters  in  confes- 
sion or  avoidance  thereof,  yet  the  court, 
unless  he  brings  to  its  attention  his  pur- 
pose to  offer  such  evidence,  cannot  assume 
that  he  desires  to  make  any  such  defense; 
and  where  a  motion  is  made  by  the  de- 
fendant to  dismiss  a  petition,  on  the  ground 
of  failure  of  the  pietitioner  to  deny  the 
genuineness  and  the  due  execution  of  an 
instrument  set  out  in  the  answer,  is  not 
opposed  on  the  ground  that  the  petitioner 
desires  to  show  that  it  was  not  freely  en- 
tered into,  or  for  an  adequate  considera- 
tion, or  that  it  was  superseded  by  a 
subsequent  agreement,  or  that  its  per- 
formance was  waived,  but  was  opposed  on 
other  grounds,  the  motion  is  jjroperly 
granted.  Estate  of  Garcelon,  104  Cal.  570; 
43  Am.  St.  Rep.  134;  32  L.  E.  A.  595;  38 
Pac.  414. 

CODE  COMMISSIONERS'  NOTE.  Seo  Ely  v. 
Frisbie,  17  Cal.  250,  cited  in  note  1,  5  446,  ante. 


§  449.  Exceptions  to  rules  prescribed  by  two  preceding"  sections.  But 
the  execution  of  the  instrument  mentioned  in  the  two  preceding  sections,  is 
not  deemed  admitted  by  a  failure  to  deny  the  same  under  oath,  if  the  party 
desiring  to  controvert  the  same  is,  upon  demand,  refused  an  inspection  of 
the  original.  Such  demand  must  be  in  writing,  served  by  copy,  upon  the 
adverse  party  or  his  attorney,  and  filed  with  the  papers  in  the  case. 


Inspection  of  writings,  order  for.    Post,  §  1000. 

Legislation  §  449.  1.  Enarted  March  11,  1872; 
■based  on  the  proviso  of  Practice  Act,  §  54,  as 
amended  by  Stats.  1865-66,  p.  702,  which  read: 
"Provided,  that  the  due  execution  of  the  instru- 
ment shall  not  be  deemed  to  be  admitted  by  a 
failure  to  controvert  the  same  on  oath,  as  pre- 
scribed  in    this    and    the   last   preceding   section, 


unless  the  party  controverting  the  same  is,  upon 
demand,  permitted  to  inspect  the  original  before 
filing  such  answer."  When  eiiacted  in  1872, 
§  449  constituted  the  first  paragraph  of  the  pres- 
ent section,  except  that  the  word  "instrument" 
was   then   printed    "instruments." 

3.    Amended    by    Code    Amdts.    1880,    p.    Ill, 
adding  the  last  sentence. 


§452 


GENERAL   RULES   OF   PLEADING. 


390 


CHAPTER  VII. 

GENERAL  RULES  OF  PLEADING. 


5  452.  Pleadings  to  he  liberally  construed. 

i  453.  Sham    and    irrelevant    answers,    etc.,    may 

be  stricken  out. 

5  454.  How  to  state  an  account  in  a  pleading. 

!  455.  Description  of   real   property  in  a  pleading. 

i  456.  Judgments,  how  pleaded. 

457.  Conditions  precedent,  how  to  be  pleaded. 

i  458.  Statute  of  limitations,  how  pleaded. 

i  459.  Private  statutes,  how  pleaded. 


§  460.  Libel  and  slander,  how  stated  in  com- 
plaint. 

§  461.     Answer  in  such  cases. 

§  462.  Allegations  not  denied,  when  to  be  deemed 
true.    When  to  be  deemed  controverted. 

§  463.     A  material  allegation  defined. 

§  464.     Supplementiil  complaint  and  answer. 

§  465.  Pleadings  subsequent  to  complaint  must 
be  filed   and  served. 


§452.  Pleadings  to  be  liberally  construed.  In  the  construction  of  a 
pleading,  for  the  purpose  of  determining  its  effect,  its  allegations  must  be 
liberally  construed,  with  a  view  to  substantial  justice  between  the  parties. 

of  the  pleader  (Farish  v.  Coon,  40  Cal.  33) ; 
but  averments  contained  in  a  paper,  not  a 
part  of  the  pleading,  although  filed  with  it, 
cannot  be  considered  in  connection  there- 
with. Kimball  v.  Union  Water  Co.,  44  Cal. 
173;   13  Am.  Rep.  157. 

Construction  against  pleader.  Gould,  in 
his  work  on  Pleading,  p.  141,  §  169,  says: 
"The  rule  is  founded,  not  only  upon  the  pre- 
sumption that  each  party's  statement  is  the 
most  favorable  to  himself,  of  which  his  case 
will  admit;  but  also  upon  the  obviously  rea- 
sonable principle,  that  it  is  incumbent  on 
each  pleader,  in  stating  the  ground  of  his 
action  or  defense,  to  explain  himself  fully 
and  clearly;  any  ambiguity,  uncertainty, 
or  omission  in  the  pleadings,  must  there- 
fore be  at  the  peril  of  that  party  in  whose 
allegations  it  occurs."  The  pleader  selects 
the  language,  and  should  make  himself 
clear,  and  where  there  are  two  intend- 
ments, the  pleading  will  be  construed 
against  the  pleader;  the  rule  is  enforced 
under  the  reformed  procedure,  which  re- 
quires liberality  in  the  construction  of 
pleadings,  where  the  pleading  is  reasonably 
capable  of  two  constructions,  one  favorable 
and  the  other  unfavorable  to  the  pleader, 
and  where  there  is  an  omission  of  a  fact 
essential  to  be  pleaded.  Woodroof  v. 
Howes,  88  Cal.  184,  198;  26  Pac.  Ill;  Green 
V.  Covillaud,  10  Cal.  317;  70  Am.  Dec.  725; 
Landers  v.  Bolton,  26  Cal.  393;  Castro  v. 
Clarke,  29  Cal.  11,  16;  Rogers  v.  Shannon, 
52  Cal.  99;  Glide  v.  Dwyer,  83  Cal.  477;  23 
Pac.  706;  Silver  Creek  etc.  Water  Co.  v. 
Hayes,  113  Cal.  142;  45  Pac.  191.  And, 
in  the  absence  of  a  special  demurrer,  where 
the  pleading  is  capable  of  different  con- 
structions, that  which  the  pleader  gives  it, 
or  which  the  court  finds  necessary  to  sup- 
port the  action,  will  be  adopted.  Ryan  v. 
Jaques,  103  Cal.  280;  37  Pac.  186.  The 
rules  of  pleading,  upon  which  the  state- 
ment of  the  cause  of  action  or  defense 
depends,  are  founded  upon  good  sense; 
their  object  is  precision  and  brevity,  which 
should  characterize  all  pleadings;  the  plead- 
ings ought  to  be  so  drawn  that  a  good  issue 
may  be  joined  thereon,  and  the  court  be 
entitled  to  give  a  judgment;  it  was  a  rule 
of  the  common  law,  firmly  established  and 


Legislation  §  452.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  70  (New  York  Code, 
§  159).  When  enacted  in  1872,  (1)  the  word 
"effect"  was  changed  from  "effects,"  and_  (2) 
the   word    "must"  was  changed  from   "shall." 

Construction  by  the  court.  Pleadings 
must  be  construed  by  the  court,  as  a  mat- 
ter of  law:  in  no  case  should  the  construc- 
tion of  pleadings  be  left  to  the  jury.  Tevis 
v.  Hicks,  41  Cal.  123,  127;  Taylor  v.  Mid- 
dleton,  67  Cal.  656,  657;  8  Pac.  594;  15 
Morr.  Min.  Rep.  284;  Glide  v.  Dwyer,  83 
Cal.  477,  479;  23  Pac.  706.  .This  section 
should  be  given  a  liberal  construction. 
Williams  v.  Pomona  Valley  Hospital  Ass'n, 
21  Cal.  App.  359;  131  Pac.  888. 

Defects  not  affecting  substantial  rights. 
It  is  a  maxim,  that  the  law  respects  form 
less  than  substance  (Civ.  Code,  §  3528); 
therefore  it  is  the  duty  of  the  court,  at 
every  stage  of  the  proceedings,  to  disre- 
gard any  defect  of  pleading  which  does 
not  affect  the  substantial  rights  of  the  par- 
ties. Eachus  V.  Los  Angeles,  130  Cal.  492; 
80  Am.  St.  Rep.  147;  62''Pac.  829;  Manning 
V.  App  Consol.  Gold  Mining  Co.,  149  Cal. 
35;  84  Pac.  657.  A  complaint  is  sufficient, 
where  a  substantial  cause  of  action  is 
alleged.  Ingraham  v.  Lyon,  105  Cal.  254; 
38  Pac.  892.  Grammatical  inaccuracies  do 
not  vitiate  a  pleading  (In  re  Ramazzina, 
110  Cal.  488;  42  Pac  970);  and  an  alle- 
gation of  a  conclusion  of  law  may  be  dis- 
regarded (Doyle  v.  Phoenix  Ins.  Co.,  44 
Cal.  264) ;  but  the  pleading  should  show 
clearly  and  affirmatively  the  relief  de- 
manded.   Bigelow  V.  Gove,  7  Cal.  133. 

Pleading  construed  as  a  whole.  The 
pleading  must  be  construed  as  a  whole. 
Nevada  County  etc.  Canal  Co.  v.  Kidd,  28 
Cal.  673.  Its  sufficiency  is  to  be  deter- 
mined from  its  general  scope  and  tenor 
(Glide  v.  Dwyer,  83  Cal.  477;  23  Pac.  706; 
Bates  v.  Babcock,  95  Cal.  479;  29  Am.  St. 
Rep.  133;  16  L.  R.  A.  745;  30  Pac.  605; 
Sprigg  v.  Barber,  122  Cal.  573;  55  Pac. 
419) ;  and  every  allegation  is  to  be  regarded 
with  reference  to  the  context.  Alemany  v. 
Pctaluma,  38  Cal.  553.  It  is  therefore  not 
permissible  to  treat  an  isolatdl  sentence, 
separated  from  the  context  ami  from  other 
j)ortions  of  the  pleading,  as  an  independent 
averment,  contrary  to  the  manifest  intent 


391 


CONSTRUCTION — INFERENCES — GENERAL    ALLEGATIONS. 


§452 


constantly  acted  ui)on,  that  a  i)lcailing 
should  be  most  strongly  taken  against  its 
author.  Estate  of  Wickershum,  153  Cal. 
603;  96  Pae.  311;  Evinger  v.  Moran,  14  Cal. 
App.  328;  112  Pae.  68.  But,  however,  where 
the  ambiguity  has  been  j^ointed  out  by  spe- 
cial demurrer,  which  the  court  has  sus- 
tained, on  appeal,  after  refusal  to  amend, 
the  ambiguity  and  uncertainty  will  be  re- 
solved against  the  i)leader.  Mctntyre  v. 
Hauser,  131  Cal.  11;  63  Pae.  69.  But  this 
rule  will  not  operate  to  force  a  construc- 
tion that  will  lead  to  absurdities,  if  the 
pleading  is  reasonably  susceptible  of  a 
different  interpretation.  Marshall  v.  Shaf- 
ter,  32  Cal.  176.  An  interpretation  which 
gives  effect  is  preferred  to  one  that  makes 
void.  Civ.  Code,  §  3541.  The  interpreta- 
tion must  be  reasonable.  Civ.  Code,  §  3542. 
The  rule  never  requires  a  pleader  to  antici- 
pate a  defense,  or  to  negative  the  existence 
of  all  other  facts  whatsoever.  Woodroof 
V.  Howes,  88  Cal.  184,  198;  26  Pae.  Ill; 
Jaffe  V.  Lilienthal,  86  Cal.  91;  24  Pae.  835. 
If,  then,  the  allegation  is  not  susceptible 
of  two  meanings,  but  the  question  is  as  to 
its  sufficiency,  it  will  be  given  the  mean- 
^  ing  the  pleader  places  on  it,  if  it  is  reason- 
ably capable  of  such  construction.  Moore 
V.  Moore,  56  Cal.  89.  The  pleading  upon 
which  a  judgment  is  founded  will  be  given 
as  favorable  an  interpretation  as  its  gen- 
eral scope  will  warrant  (Fudickar  v.  East 
Eiverside  Irrigation  Dist.,  109  Cal.  29;  41 
Pae.  1024) ;  and  defects  in  the  pleading, 
consisting  of  facts  appearing  by  implica- 
tion only,  are  cured  by  verdict  or  findings 
necessarily  implying  the  existence  of  said 
facts;  but  this  rule  does  not  apply  where 
the  findings  are  contrary  to  the  inference 
or  implication.  Hildreth  v.  Montecito  Creek 
Water  Co.,  139  Cal.  22;  72  Pae.  395. 
Where  a  defect  might  have  been  obviated 
by  amendment,  and  the  party  proceeds  to 
trial  without  objecting  thereto,  he  cannot 
raise  the  objection  for  the  first  time  upon 
appeal.  Hill  v.  Haskin,  51  Cal.  175;  Du 
Bois  v.  Podgham,  18  Cal.  App.  298;  123 
Pae.  207. 

Facts  not  alleged  will  not  be  assumed. 
It  is  an  established  maxim  of  jurispru- 
dence, peculiarly  applicable  to  pleadings, 
that  that  which  does  not  appear  to  exist  is 
to  be  reearded  as  if  it  did  not  exist.  Civ. 
Code,  §3530;  Slater  v.  McAvoy,  123  Cal. 
437;  56  Pae.  49;  Hildreth  v.  Montecito 
Creek  Water  Co.,  139  Cal.  22;  72  Pae.  393. 
In  the  construction  of  a  pleading,  nothing 
can  be  assumed  in  favor  of  the  pleader 
which  has  not  been  averred  (Cogswell  v. 
Bull,  39  Cal.  320;  Harris  v.  Hillegass,  54 
Cal.  463;  Smith  v.  Buttner,  90  Cal.  95;  27 
Pae.  29);  but,  on  the  contrary,  agreeably 
to  the  maxim  just  quoted,  the  court  will 
assume,  where  a  fact  is  not  alleged,  that 
it  does  not  exist  (Slater  v.  McAvov,  123 
Cal.  437,  439;  56  Pae.  49;  Hildreth  v. 
Montecito  Creek  Water  Co.,   139   Cal.  22; 


72  Pae.  395),  or  that  it  occurred  at  a  time 
or  place  or  in  a  manner  to  defeat  the  claim 
of  the  ])leader.  Triscony  v.  Orr,  49  Cal. 
612;  Collins  v.  Townsend,  58  Cal.  608;  Hays 
V.  Steiger,  76  Cal.  555;  18  Pae.  670;  People 
v.  Wong  Wang,  92  Cal.  277;  28  Pae.  270; 
Krause  v.  Sacramento,  48  Cal.  221;  Ben- 
ham  V.  Connor,  113  Cal.  168;  45  Pae.  258; 
Siskiyou  Lumber  etc.  Co.  v.  Rostcl,  121  Cal. 
511,  513;  53  Pae.  1118;  Lewiston  Turnpike 
Co.  V.  Shasta  etc.  Wagon  Road  Co.,  41  Col. 
562.  No  intendment  can  be  indulged  in 
aid  of  a  pleading  (Callahan  v.  Loughran, 
102  Cal.  476,  482;  36  Pae.  835):  whatever 
facts  are  necessary  to  the  cause  of  action 
must  be  alleged,  or  they  will  be  taken  as 
having  no  existence  (Callahan  v.  Lough- 
ran, 102  Cal.  476;  36  Pae.  835;  Hildreth  v. 
Montecito  Creek  Water  Co.,  139  Cal.  22;  72 
Pae.  395);  and  it  will  be  presumed  that 
every  fact  that  can  be  proved  has  been 
alleged.  Gruwell  v.  Seybolt,  82  Cal.  79; 
22  Pae.  938.  The  court  cannot  insert  any 
necessary  issuable  facts  in  a  pleading  (Guy 
v.  Washburn,  23  Cal.  Ill;  Moore  v.  Bessc, 
30  Cal.  570,  572) ;  and  any  inference  against 
the  pleader,  plainly  deducible  from  a  fail- 
ure to  allege  facts,  must  be  drawn  by  the 
court.  Chipman  v.  Em.eric,  5  Cal.  49;  03 
Am.  Dec.  80. 

General  allegations  controlled  by  those 
that  are  specific.  General  allegations  in  a 
pleading  are  controlled,  limited,  and  modi- 
fied by  particular  ones.  Hinkley  v.  Field's 
Biscuit  etc.  Co.,  91  Cal.  141;  27  Pae.  594; 
Gruwell  v.  Seybolt,  82  Cal.  7;  22  Pae.  938. 
This  is  in  harmony  with  the  maxim,  that 
particular  expressions  qualify  those  that 
are  general.  Civ.  Code,  §  3534.  But  incon- 
sistent allegations  nullify  one  another. 
Dickinson  v.  Maguire,  9  Cal.  46. 

Dilatory  pleas  not  favored.  The  party 
making  a  dilatory  plea  relies  upon  tech- 
nical law  to  defeat  his  adversary:  he  is 
therefore  held  to  technical  exactness  in  his 
pleading.   Thompson  v.  Lyon,  14  Cal.  39,  42. 

CODE  COMMISSIONERS'  NOTE.  All  plead- 
ing is  taken  most  strongly  against  the  pleader 
(Kashaw  v.  Kashaw,  3  Cal.  322;  Moore  v.  Besse, 
30  Cal.  570;  Green  v.  Covillaud,  10  Cal.  317;  70 
Am.  Dec.  725)  ;  but  this  rule  does  not  apply 
whore  the  pleader  confesses  his  pleading  is  bad, 
and  that  it  imperfectly  and  ambiguously  expresses 
his  meaning  and  intent,  and  therefore  appeals  to 
the  mercy  of  the  court  to  be  allowed  to  amend 
it  in  furtherance  of  justice,  so  as  to  present  his 
case  more  clearly.  Nevada  County  etc.  Canal  Co.  v. 
Kidd,  28  Cal.  684;  see  also  Felch  v.  Beaudry,  40 
Cal.  440.  Nor  does  the  rule  apply  when  it  would 
make  the  pleading  absurd,  if  it  will  bear  any 
other  construction.  Marshall  v.  Sliafter,  32  Cal. 
176.  In  construing  a  pleading,  an  isolated  sen- 
tence should  not  be  taken  separated  from  its  con- 
text, and  the  effect  of  an  independent  averment 
given  to  it,  unless  from  the  whole  pleading  such 
appears  to  have  been  the  plain  intent.  Parish  v. 
Coon,  40  Cal.  33.  By  substantial  justice  is  meant 
substantial  legal  justice,  to  be  ascertained  and 
determined  by  fixed  rules  and  positive  statutes, 
and  not  the  abstract  and  varying  notions  of 
equity  which  may  be  entertained  by  each  in- 
dividual. Stevens  v.  Ross,  1  Cal.  98;  see  also 
Rowe  V.  Chandler,  1  Cal.  167. 


453 


GENERAL   RULES   OF   PLEADING. 


392 


§  453.  Sham  and  irrelevant  answers,  etc.,  may  be  stricken  out.  Sham 
and  irrelevant  answers,  and  irrelevant  and  redundant  matter  inserted  in  a 
pleading,  may  be  stricken  out,  upon  such  terms  as  the  court  may,  in  its  dis- 
cretion, impose. 


Legislation  §  453.  Enacted  March  11,  1872, 
based  on  Practice  Act,  §  50.  as  amended  by  btats. 
1&65-66  p.  702,  and  Practice  Act,  §  5  <  (isew 
York  Code,  §  160).  So  much  of  §  50  as  relates 
to  the  subject  read:  "Sham  and  irrelevant  an- 
swers and  defenses,  and  so  much  of  any  plead- 
ing as  may  be  irrelevant,  redundant,  or  imma- 
terial mav  be  stricken  out,  upon  motion,  upon 
such  terms  as  the  court  in  its  discretion  may  im- 
pose." And  §  57  read:  "If  irrelevant  or  reaun- 
dant  matter  be  inserted  in  a  pleading,  it  may  De 
stricken  out  by  the  court  on  motion  of  any  per- 
son aggrieved  thereby." 

What  is  a  sham  answer.  A  sham  answer 
is  one  good  in  form,  but  false  in  fact,  and 
not  pleaded  in  good  faith.  Piercy  v.  Sabin, 
10  Cal.  22;  70  Am.  Dec.  692;  Greenbaum 
V.  Turrill,  57  Cal.  285;  Gostorfs  v.  Taaffe, 
18  Cal.  385;  Wedderspoon  v.  Rogers.  32' 
Cal  569;  Continental  Building  etc.  Ass'u 
V.  Boggess,  1-45  Cal.  30,  3i;  78  Pae.  245. 
A  frivolous  answer  is  one  that  denies  no 
material  averment  in  the  complaint  and 
sets  up  no  defense:  such  an  answer  entitles 
the  plaintiff  to  judgment  on  the  pleadings 
(Hemme  v.  Hays,  55  Cal.  337);  but  where 
the  answer  is  rendered  evasive  by  a  mere 
clerical  error,  a  judgment  on  the  pleadings 
is  not  warranted.  Raker  v.  Bueher,  100 
Cal.  214;  34  Pac.  654,  849.  The  code  does 
not  change  the  common-law  rule  in  regard 
to  striking  out  sham  answers:  an  answer 
cannot  be  stricken  out  upon  this  ground, 
where  it  sets  up  a  sufficient  defense  (Green- 
baum V.  Turrill,  57  Cal.  285) ;  as  where  it 
traverses  all  the  allegations  of  the  com- 
plaint (Brooks  V.  Chilton,  6  Cal.  640,  642; 
Abbott  V.  Doualass,  28  Cal.  295,  297;  Fay 
V.  Cobb,  51  Cal.  313,  315),  or  the  greater 
part  thereof  (Lybecker  v.  Murray,  58  Cal. 
186) ;  or  even  one  material  allegation  CBank 
of  Shasta  v.  Bovd,  99  Cal.  604;  34  Pac. 
337;  Toland  v.  Toland.  123  Cal.  140;  55 
Pac.  681;  Oroville  etc.  R.  R.  Co.  v.  Super- 
visors, 37  Cal.  354) ;  but  where  it  raises  an 
issue  on  immaterial  matters  only,  it  may 
be  stricken  out.  Loveland  v.  Garner,  74 
Cal.  298,  300;  15  Pae.  844.  It  will  be  seen, 
therefore,  that  it  results  from  the  eases, 
that  it  is  only  where  a  defendant,  in  bad 
faith,  presents  a  defense  which  is  mani- 
festly false  on  its  face,  or  where  the  an- 
swer denies  no  material  allegation  of  the 
complaint,  or  sets  up  no  defense,  that  the 
answer  may  be  stricken  out:  the  court  will 
be  liberal  in  the  allowance  of  amendments, 
where  the  answer  is  susceptible  of  amend- 
ment by  a  statement  of  known  facts,  so  as 
to  constitute  a  defense.  Burns  v.  Scooffv, 
98  Cal.  271;  33  Pac.  86.  A  mere  inconsis- 
tency between  the  facts  alleged  and  those 
adduced  at  the  trial  does  not  justify  the 
court  in  granting  the  motion  to  strike  out; 
and  the  correctness  of  the  order  is  to  be 
tested  by  reference  to  the  state  of  the 
pleadings  at  the  time  it  was  made.    Baker 


V.  Southern  California  Ry.  Co.,  106  Cal. 
257;  46  Am.  St.  Rep.  237;  39  Pac.  610.  A 
demurrer,  not  being  a  defense,  could  not, 
under  the  Practice  Act,  be  stricken  out  as 
sham  (Larco  v.  Casaneuava,  30  Cal.  560, 
566);  and  of  course  it  cannot,  under  the 
code,  since  it  only  authorizes  the  striking 
out  of  "answers,"  and  not  "defenses,"  as 
provided  in  §  50  of  the  Practice  Act.  See 
Davis  V.  Honey  Lake  Water  Co.,  98  Cal. 
415;  33  Pac.  270.  The  court  should  strike 
out  improper  matter  from  the  counterclaim. 
Bartlett  Estate  Co.  v.  Fraser,  11  Cal.  App. 
373;  105  Pac.  130. 

Irrelevant  and  redundant  matter.  A 
pleading  should  be  confined  to  a  simple 
narrative  of  such  facts  as  are  necessary  to 
constitute  a  cause  of  action  or  defense,  and 
should  state  the  ultimate  facts  only  (Mitch- 
ell V.  Steelman,  S  Cal.  363),  and  not  pro- 
bative facts  or  conclusions  of  law.  Cali- 
fornia Raisin  Growers'  Ass'n  v.  Abbott, 
160  Cal.  601;  117  Pac.  767.  Irrelevant,  im- 
material, and  evidentiary  matter,  having 
no  office  to  fill,  should  not  be  inserted  in  a 
pleading,  nor  allowed  to  encumber  the  rec- 
ord (Larco  v.  Casaneuava,  30  Cal.  560,  565; 
Eich  V.  Greeley,  112  Cal.  173;  44  Pac.  483; 
Green  v.  Palmer,  15  Cal.  414;  76  Am.  Dec. 
492);  and  such  matter  will  be  stricken  out 
on  motion  (Coryell  v.  Cain,  IB  Cal.  572; 
Smith  V.  Richmond,  19  Cal.  480;  Bowen  v. 
Aubre.y,  22  Cal.  570;  Patterson  v.  Key- 
stone Mining  Co.,  30  Cal.  364;  Bruck  v. 
Tucker,  42  Cal.  351),  as  will  also  irrelevant 
matter  blended  with  allegations  of  mate- 
rial facts  (Willson  v.  Cleaveland,  30  Cal. 
192);  but  the  court  is  not  bound  to  strike 
out  matters  so  blended,  where  the  adverse 
party  is  not  prejudiced  thereby.  Sloane  v. 
Southern  California  Ry.  Co.,  Ill  Cal.  668, 
684;  32  L.  R.  A.  193;  44  Pac.  320.  Words 
of  description,  such  as  "duly,"  "wrong- 
fully," and  "unlawfully,"  which  tender  no 
issue,  and  detract  from  the  directness  and 
simplicity  of  a  pleading,  will  also  be 
stricken  out  (Miles  v.  McDermott,  31  Cal. 
271),  as  well  as  all  surplusage  (Wheeler  v. 
West,  78  Cal.  95;  20  Pac.  45;  Warner  v. 
Steamship  Uncle  Sam,  9  Cal.  736;  Mitchell 
V.  Steelman,  8  Cal.  369;  Mora  v.  Le  Rov, 
58  Cal.  10;  Millan  v.  Hood,  3  Cal.  Unrep. 
548;  30  Pac.  1107),  and  irrelevant  matter, 
not  constituting  a  cause  of  action  or  de- 
fense (Boggs  v.  Clark,  37  Cal.  236;  Bates 
v.  Sierra  Nevada  etc.  Mining  Co.,  18  Cal. 
171;  Weimer  v.  Lowerv,  11  Cal.  104;  Sileox 
v.  Lang,  78  Cal.  118;  "20  Pac.  297;  Barklv 
v.  Copeland,  74  Cal.  1;  5  Am.  St.  Rep.  413;' 
15  Pac.  307),  and  matter  of  inducement, 
which  adds  nothing  to  the  sufficiency  of 
the  pleading  (Henke  v.  Eureka  Endowment 
Ass'n,  100  Cal.  429;  34  Pac.  1089;  Bremner 


393 


MOTION   TO  STRIKE  OUT — HEARING — SHAM    ANSWERS. 


§453 


V.  Leavitt,  109  Cal.  130;  41  Pac.  859);  but 
facts  whii'h  constitute  a  necessary  part  of 
the  pleading,  although  defectively  stated, 
cannot  be  reached  by  the  motion.  Jackson 
V.  Lebar,  53  Cal.  255;  Swain  v.  Burnette, 
76  Cal.  303;  18  Pac.  394;  Baker  v.  South- 
ern California  By.  Co.,  106  Cal.  257;  4(5 
Am.  St.  Eep.  237;  39  Pac.  610;  McDermont 
V.  Anaheim  Union  Water  Co.,  124  Cal.  112; 
56  Pac.  779.  The  matter  to  be  stricken 
out  must  be  redundant  and  irrelevant  as 
to  the  pleading  in  which  it  occurs,  not  as 
to  a  cause  of  action  or  defense  stated 
in  another  pleading.  Nevada  County  etc. 
Canal  Co.  v.  Kidd,  28  Cal.  673. 

Necessity  and  suflR.ciency  of  motion  to 
strike  out.  Where  the  facts  alleged  in  a 
pleading  are  redundant,  the  pro])er  remedy 
is  a  motion  to  strike  out,  ami  not  by 
demurrer.  Henke  v.  Eureka  Endowment 
Ass'n,  100  Cal.  429;  34  Pac.  1089;  Mitchell 
V.  Steelman,  8  Cal.  363.  The  motion  should 
be  specific,  and  clearly  point  out  the  par- 
ticular matters  objected  to.  People  v.  Em- 
pire Gold  etc.  Mining  Co.,  33  Cal.  171.  It 
must  not  be  directed  against  the  whole 
pleading,  but  against  particular  words, 
clauses,  sentences,  and  allegations.  Con- 
tinental Building  etc.  Ass'n  v.  Bosgess,  145 
Cal.  30;  78  Pac.  245.  The  court  cannot 
strike  out  matter  of  its  own  motion.  Cur- 
tis V.  Sprague,  41  Cal.  59. 

Motion  to  strike  out  answer,  and  hear- 
ing thereon.  The  motion  must  be  made 
upon  notice.  A  rata  v.  Tellurium  etc.  Min- 
ing Co.,  65  Cal.  340;  4  Pac.  195.  If  made 
upon  uncontroverted  aflSdavits  showing  the 
falsity  of  the  plea  and  the  bad  faith  of 
the  defendant,  it  will  be  stricken  out,  but 
where  the  defendant  supports  his  plea  by 
an  affidavit,  stating  specifically  his  grounds, 
he  cannot,  as  a  general  rule,  be  deprived 
of  a  trial  in  the  ordinary  mode.  Gostorfs 
V.  Taaflfe,  18  Cal.  385.  The  court  cannot 
dispose  of  the  defendant's  answer  in  a 
summary  way,  nor  inquire,  in  advance  of 
the  trial,  as  to  the  good  faith  of  the  de- 
fendant in  pleading  his  defense.  Fay  v. 
Cobb,  51  Cal.  313.  Under  no  possible  cir- 
cumstances can  the  court  hear  oral  testi- 
mony on  the  issue  of  the  falsity  of  the 
plea,  in  advance  of  the  trial.  Abbott  v. 
Douglass,  28  Cal.  295.  The  true  rule  seems 
to  be,  that  the  answer  must  appear  to  be 
sham  on  its  face  (Sweetman  v.  Ramsey,  22 
Mont.  323;  56  Pac.  361),  or  by  reference 
to  some  matter  dehors  the  record,  of  which 
the  court  may  take  judicial  notice.  Edson 
V.  Dillaye,  8  How.  Pr.  273;  1  Bac.  Abr.  32. 
All  objections  to  the  allegations  on  the 
ground  that  they  are  sham  and  irrelevant 
are  waived  bv  introducing  evidence.  Tvnan 
V.  Walker,  35  Cal.  634;  95  Am.  Dec."l52; 
Silvarer  v.  Hansen,  77  Cal.  579;  20  Pac. 
136.  Where  the  name  of  the  attoi^ey  of 
record  appears  at  the  foot  of  an  answer, 
in  connection  with  the  name  of  other  coun- 
sel, the  court,  on  motion  to  strike  out  the 


answer,  will  not  try  the  question  whether 
the  signature  is  genuine,  or  was  put  there 
by  associate  counsel  without  any  express 
authority.  Willson  v.  Cleaveland,  30  Cal. 
192.  The  action  of  the  court  will  not  be 
disturbed,  except  for  an  abuse  of  discre- 
tion. Clapp  V.  Vatcher,  9  Cal.  App.  462; 
99  I-'ac.  549.  A  counterclaim  cannot  be 
stricken  out  without  notice  to  the  defend- 
ant. Curtis  V.  Sprague,  41  Cal.  55.  The 
correctness  of  an  order  striking  a  special 
defense  from  the  original  answer  is  to  be 
tested  by  reference  to  the  state  of  the 
pleadings  at  the  time  the  onler  was  made; 
and  it  cannot  be  supported  upon  the  ground 
that  the  defendant  subsequently  amended 
his  answer  by  setting  up  an  inconsistent 
defense:  tlie  question  is,  whether  the  facts 
as  pleaded  would  constitute  a  defense  to 
the  cause  of  action  stated  in  the  complaint. 
Baker  v.  Southern  California  Ev.  Co.,  106 
Cal.  257;  46  Am.  St.  Rep.  237;  39  Pac.  610. 

What  constitutes  frivolous  answer.  See  note  70 
Am.  Dfc.  6:!n, 

Striking  out  answer  as  sham.  See  note  72  Am. 
Dec.  ."j'il. 

Sham  pleadings.  See  note  113  Am.  St.  Rep. 
639. 

COBE  COMMISSIONERS'  NOTE.  1.  Sham  an- 
swers. .See  piirticulnrly  Piercy  v.  Sabin,  10  Cal. 
27;  70  Am.  Dec.  692,  commented  on  in  note  42 
to  §  437,  ante.  A  sham  answer,  said  the  court, 
in  Piercy  v.  Sabin,  10  Cal.  27,  70  Am.  Dec.  692, 
was  one  good  in  form,  but  false  in  fact,  and  not 
pleaded  in  good  faith.  The  same  definition,  sub- 
stantially, was  given  by  tlie  court  of  appeals  of 
New  York  in  the  case  of  the  People  v.  McCuraber, 
18  N.  Y.  315;  72  Am.  Dec.  .515.  It  was  sug- 
gested, however,  that  the  power  to  strike  out 
should  be  carefully  exercised,  and  not  extended 
beyond  its  just  limits.  "It  is  a  power,"  said  the 
court,  "simply  to  inquire  whether  there  is  in  fact 
any  question  to  be  tried,  and  if  there  is  not,  but 
the  defense  is  a  plain  fiction,  to  strike  out  the 
fictitious  defense.  Where  a  defendant,  on  a  mo- 
tion to  strike  out  his  defense  as  sham,  supports 
it  by  an  affidavit,  stating  specially  its  grounds, 
he  cannot,  as  a  general  rule,  be  deprived  of  a 
trial  in  the  ordinary  mode — a  case  for  striking  out 
does  not  exist."'  Whether  the  statute  applies 
to  any  but  affirmative  defenses,  it  is  unnecessary 
to  determine;  but  there  is  no  doubt  that  where 
affirmative  matter  is  falsely  pleaded  for  the  pur- 
pose of  delay,  it  should  be  stricken  out.  If  the 
defense,  however,  be  bona  fide,  the  affidavit  of 
the  defendant  to  that  effect  will  be  a  sufficient 
answer  to  any  attempt  to  strike  it  out.  (iastorfs 
V.  Taaffe,  18  Cal.  387.  When  the  plaintiff  claims 
that  all  the  denials  are  bad,  if  the  answer  con- 
tains no  new  matter,  he  may  test  the  sufficiency 
of  the  denials  by  a  motion  for  judgment  upon 
the  pleadings,  or  by  motion  to  strike  out  the  an- 
swer, on  the  ground  that  it  is  sham.  If  some 
of  the  denials  are  deemed  good  and  the  othprs 
bad,  he  may  move  to  strike  out  the  latter.  This 
course  is  authorized  under  this  section.  Answers 
consisting  of  denials  which  do  not  explicitly 
traverse  the  material  allegations  of  the  complaint, 
we  hold  to  be  so  far  sham  and  irrelevant,  within 
the  meaning  of  the  statute.  People  v.  McCumber, 
18  X.  Y.  315;  72  Am.  Dec.  515;  Gay  v.  Winter, 
34  Cal.  161. 

2.  Immaterial,  redundant,  or  irrelevant  mat- 
ter. All  redundant,  immaterial,  or  irrelevant 
matter  should  be  stricken  out.  Bowen  v.  Aubrey, 
22  Cal.  566;  Guy  v.  Washburn,  23  Cal.  Ill; 
Willson  V.  Cleaveland,  30  Cal.  192;  Larco  v. 
Casaneuava,  30  Cal.  561;  Felch  v.  Beaudry,  40 
Cal.  440. 

3.  Frivolous  defense.  An  answer  by  the  payor 
of    a   note,    that    the    plaintiff   is    not    the    lawful 


454 


GENERAL   RULES   OF   PLEADING. 


394 


owner  or  holder  of  the  instrument  sued  on,  when 
upon  its  face  it  runs  to  him,  and  which  discloses 
no  issuable  fact  in  support  of  such  denial,  is  sim- 


ply frivolous.  Felch  v.  Beaudry,  40  Cal.  440. 
See  further  sections  of  this  code,  relating  to  com- 
plaint, answer,  and  demurrer. 


§  454.  How  to  state  an  account  in  a  pleading.  It  is  not  necessary  for  a 
party  to  set  forth  in  a  pleading  the  items  of  an  account  therein  alleged,  but 
he  must  deliver  to  the  adverse  party,  within  five  days  after  a  demand  thereof 
in  writing,  a  copy  of  the  account,  or  be  precluded  from  giving  evidence 
thereof.  The  court  or  judge  thereof  may  order  a  further  account  when  the 
one  delivered  is  too  general,  or  is  defective  in  any  particular. 

Exhibiting    origiual    account,    and    delivering        does    not    preclude    the    party   from    giving 

evidence  thereof,  as  the  truth  of  the  items 
is  the  very  point  at  issue:  it  is  only  where 
the  party  refuses  to  furnish  any  account, 
after  demand  in  writing,  that  he  is  pre- 
cluded from  giving  evidence  thereof.  Gra- 
ham V.  Harmon,  84  Cal.  181;  23  Pac.  1097. 
This  section  is  applicable  to  a  claim  for  an 
aggregate  amount  for  labor  done  and  mate- 
rials furnished  for  the  construction  of  a 
vessel.  Jensen  v.  Dorr,  159  Cal.  742;  116 
Pac.  553. 

Bill  of  particulars  of  account  stated.  In 
an  action  upon  a  stated  account,  a  party 
is  not  authorized,  under  this  section,  to  de- 
mand a  bill  of  particulars  of  the  items  of 
the  original  account  upon  which  the  stated 
account  is  based:  the  stated  account  is  a 
new  contract,  and  the  items  of  the  original 
account  are  merged  therein  (Auzerais  v. 
Naglee,  74  Cal.  6U;  15  Pac.  371);  but  the 
party  is  entitled  to  a  copy  of  the  alleged 
stated  account.  Coffee  v.  Williams,  103 
Cal.  550;  37  Pac.  504.  A  complaint  in  the 
form  of  a  common  count  for  goods  sold 
and  delivered,  is  suflScient  as  a  statement 
of  a  cause  of  action:  the  defendant  may 
always  exact  his  statement  of  the  particu- 
lars of  the  account.  Salinas  Valley  Lumber 
Co.  V.  Magne-Silica  Co.,  159  Cal.  182;  112 
Pac.  1089. 

Further  account  on  order  of  court.  If 
the  bill  of  particulars  is  too  general,  the 
party  cannot  ignore  it,  but  should  ask  for 
a  further  account  (Providence  Tool  Co.  v. 
Prader,  32  Cal.  634;  91  Am.  Dec.  598);  and, 
when  furnished,  it  supersedes  the  other. 
Ames  V.  Bell,  5  Cal.  App.  1;  89  Pac.  619. 
When  the  account  furnished  is  adjudged 
defective,  and  the  court  or  .Judge  orders  a 
further  account,  the  order  must  state  the 
particulars  in  reference  to  which  a  further 
specification  is  required.  Conner  v.  Hutch- 
inson, 17  Cal.  279.  If  the  bill  of  particu- 
lars furnished  under  such  order  is  not 
satisfactory  to  the  party,  and  he  intends 
to  object  to  the  introduction  of  evidence 
on  the  subject,  he  must  obtain  an  order, 
previous  to  the  trial,  to  exclude  such  evi- 
dence. Conner  v.  Hutchinson,  17  Cal.  279; 
McCarthv  v.  Mount  Tecarte  Land  etc.  Co., 
110  Cal.' 687;  43  Pac.  391.  An  amended 
bill  of  particulars  may  include  items  of  a 
general  account  for  services  not  specifically 
mentioned  in  previous  bills.  Ames  v.  Bell, 
5  Cal.  App.  1;  89  Pac.  619.  Where  the 
court,  of  its  own  motion,  orders  a  further 


copy  to  adverse  party.    See  post,  §  886. 

Legislation  §  454.  1.  Enacted  March  11,  1872; 
based  on  l^ractice  Act,  §  56  (New  York  Code, 
§  158).  When  enacted  in  1872,  (1)  in  first  line, 
the  words  "is  not"  were  changed  from  "shall  not 
be,"  and  (2)  the  word  "must,"  before  "deliver," 
was  changed  from   "shall." 

2.   Amended  by  Code  Amdts.  18SO.  p.  2. 

Purpose  and  effect  of  bill  of  particu- 
lars. The  object  of  the  bill  of  particulars 
is  to  amplify  the  pleadings  and  apprise 
the  adverse  party  of  the  specific  demand 
against  him.  Auzerais  v.  Naglee,  74  Cal. 
60;  15  Pac.  371;  Ames  v.  Bell,  5  Cal.  App. 
1;  89  Pac.  619.  The  eft'ect  of  the  bill  is  to 
restrict  the  evidence  and  limit  the  re- 
covery to  the  matters  set  forth  therein. 
Ames  V.  Bell,  5  Cal.  App.  1;  89  Pac.  619; 
Edelman  v.  McDonell,  126  Cal.  210;  58  Pac. 
528.  It  becomes  a  part  of  the  pleading  of 
the  party,  and  he  must  recover,  if  at  all,  on 
the  cause  therein  stated.  Chapman  v.  Bent, 
6  Cal.  Unrep.  740;  65  Pac.  959.  A  de- 
fendant can  ascertain  the  items  of  a  claim, 
under  this  section.  Donegan  v.  Houston,  5 
Cal.  App.  626;  90  Pac.  1073.  A  demand 
for  a  copy  of  the  account  is  the  only  rem- 
edy of  a  party,  who  is  dissatisfied  with  the 
general  allegation  of  indebtedness  in  the 
pleading  of  his  adversarv.  Wise  v.  Hogan, 
77  Cal.  184;  19  Pac.  278;' Burns  v.  Cushing, 

96  Cal.  669;  31  Pac.  1124;   Rogers  v.  Duff, 

97  Cal.  66;  31  Pac.  836;  Farwell  v.  Murray, 
104  Cal.  464;  38  Pac.  199;  Pleasant  v. 
Samuels,  114  Cal.  34;  45  Pac.  998;  McFar- 
land  V.  Holcomb,  123  Cal.  84;  55  Pac.  761; 
.lewell  V.  Colonial  Theater  Co.,  12  Cal.  App. 
681;  108  Pac.  527;  Aydelotte  v.  Bloom,  13 
Cal.  App.  56;  108  Pac.  877.  If  no  bill  of 
particulars  is  demanded,  each  item  of  the 
account  may  be  proved  under  the  general 
allegation  of  the  pleading.  Knight  v.  Russ, 
77  Cal.  410;  19  Pac.  698;  Burns  v.  Cushing, 
96  Cal.  669;  31  Pac.  1124;  Tompkins  v. 
Mahoney,  32  Cal.  231;  McFarland  v.  Hol- 
comb, 123  Cal.  84;  55  Pac.  761.  In  an  ac- 
tion for  legal  services,  a  bill  of  particulars 
may  be  demanded,  though  the  complaint  is 
not  subject  to  special  demurrer  for  am- 
biguity and  uncertainty.  Burns  v.  Cushing, 
96  Cal.  669;  31  Pac.  1124.  In  an  action  for 
services  anri  traveling  expenses,  any  uncer- 
tainty as  to  the  sum  claimed  for  either 
item  may  be  cured  by  a  bill  of  particulars, 
.lewell  V.  Colonial  Theater  Co.,  12  Cal.  App. 
681;  108  Pac.  527.  A  mistake  in  the  items 
of    the    account,    discovered    at    the   trial, 


395 


BILL  OP  PARTICULARS — WAIVER — REALTY — DESCRIPTION. 


§455 


account,  it  cannot  preclude  the  pnrty  from 
giving  evidence,  because  of  his  failure  so 
to  furnish  a  further  account.  Hart  v.  Spect, 
62  Cal.  IST. 

Waiver  of  objection  to  bill  of  particu- 
lars. Ulijcctioii  to  a  liill  of  partiiulars 
may  be  waived  by  delay  (Ames  v.  IJoll,  5 
Cal.  Aj)p.  ];  89  Pae.  611));  and  tlicre  is  a 
waiver,  by  a  failure  to  object  to  the  form 
or  substance  of  the  account  furnished,  un- 
til the  commencement  of  the  trial.  Denui- 
son  V.  Smith,  1  Cal.  437.  Where  a  bill  of 
]iarticulars  is  not  so  complete  as  the  de- 
fendant desires,  or  is  objectional)le  in  any 
resjicct,  he  waives  his  right  to  have  the 
jdaintifr  precluded  from  giving  evidence 
thereof,  if  he  fails  to  ask  for  a  further 
account,  or  to  make  any  objection  to  the  one 
delivered.  Union  Lumber  Co.  v.  Morgan, 
162  Cal.  722;  124  Pac.  228. 

Amendment  of  bill  of  particulars.  See  note  51 
Am.  St.  Rep.  421. 

Bill  of  particulars  in  negligence  cases.  See  note 
3   Ann.  Cas.   161. 

CODE  COMMISSIONERS'  NOTE.  The  objec- 
tion that  a  bill  of  partieulars  is  not  properly 
verified  by  the  oath  of  the  party  comes  too  late 
upon  the  trial.  If  the  bill  is  not  satisfactory  to 
the  defendant,  either  because  it  is  defective  in 
form  or  in  substance,  or  becau.se  it  is  not  veri- 
fied by  the  plaintiff,  he  should  immediately  re- 
turn it,  or  move  the  court  for  a  further  amended 
bill.  Deunison  v.  Smith,  1  Cal.  437;  see  also 
Providence  Tool  Co.  v.  Prader,  32  Cal.  634;  91 
Am.  Dec.  598;  Conner  v.  Hutchinson,  17  Cal. 
280.      in    an    action    upon    a    note,    defendant,    in 


peneral  terms,  without  items,  set  up  an  account 
for  work  and  labor,  and  for  money  paid,  etc. 
Plaintiff  asked  for  a  copy  of  the  account,  which 
was  furni.«hi'd  by  defendant.  Plaintiff  gave  notice 
that  he  would  move  the  court  "for  a  further  ac- 
count of  particulars,"  etc.;  and  on  hearing,  the 
court  ordered  the  same,  which  defendant  sup- 
plied. On  the  trial,  plaintiff  offered  his  note, 
and  rested.  Def<'ndant  offered  evidence  of  the 
account  set  up  in  the  answer,  to  which  plaintiff 
objected,  on  the  ground  that  "defendant  had  not 
furnished  an  additional  bill  of  particulars,"  and 
the  court  ruled  out  the  evidence.  This  was  an 
erroneous  rulinp;:  first,  because  the  order  for  a 
further  account  was  defective,  in  not  slating  the 
particulars,  in  reference  to  which  a  further  speci- 
fication was  required:  and  second,  if  the  bill  of 
particulars,  delivered  under  the  order  of  the  court, 
was  not  satisfactory,  and  plaintiff  intended  to 
object  to  any  evidence  upon  the  subject,  he  should 
have  obtained,  previous  to  the  trial,  an  order 
excluding  such  evidence.  Where  a  copy  of  the 
account  sued  on,  or  set  forth  in  the  answer,  is 
called  for  under  this  section  of  the  code,  the 
items  of  the  account  furnished  must  be  stated 
with  as  much  particularity  as  the  nature  of  the 
case  admits  of;  but  the  law  does  not  require  im- 
possibilities; and  if  the  party  gives  the  items 
as  definitely  as  he  can,  he  does  not  forfeit  his 
rights  because  of  his  inability  to  comply  with  a 
further  demand  for  particulars.  Conner  v.  Hutch- 
inson, 17  Cal.  280.  Where  the  complaint  set 
forth  the  bill  of  sale  in  its  precise  words,  it  was 
held  not  to  be  defective  in  the  description  of  the 
quantity  of  the  goods  sold.  A  party  must  be 
presumed  to  know  what  was  intended  by  his  own 
account.  Cochran  v.  Goodman,  3  Cal.  244.  If, 
in  an  action  to  recover  a  certain  amount  due  for 
legal  services,  the  complaint  is  in  general  terras, 
and  the  defendant  asks  for  and  receives  a  bill  of 
particulars,  he  can  make  no  objection  to  ad- 
milting  evidence  under  it.  Tompkins  v.  Mahoney, 
32  Cal.  231. 


§  455.  Description  of  real  property  in  a  pleading.  In  an  action  for  the 
recovery  of  real  proiJerty,  it  must  be  described  in  the  complaint  with  such 
certainty  as  to  enable  an  officer,  upon  execution,  to  identify  it. 

scription  calling  for  a  definite  starting- 
point,  the  first  line  being  a  given  tlistanco 
therefrom  to  a  station  fence-post,  and  all 
the  other  lines  being  described  by  courses, 
distances,  and  monuments,  is  sufficient. 
Muir  V.  Meredith,  82  Cal.  19;  22  Pac.  1080. 
Where  the  starting-point  in  a  description 
is  sufficiently  definite  and  certain,  and 
there  can  be  but  one  such  point,  this  is 
sufficient,  as  against  an  objection  that  tho 
starting-point  is  not  given.  Sherman  v. 
McCarthy,  57  Cal.  507.  Where,  in  the  com- 
jjlaint,  the  lot  and  block  numbers  are  given, 
and  reference  is  made  to  a  certain  plat  of 
the  town,  and  the  street  names  and  dis- 
tances are  given,  but  reference  is  made  to 
the  caption  of  the  comjilaint  for  the  name 
of  the  county,  there  is  a  sufficient  descrip- 
tion of  the  premises,  and  the  county  is 
sufficiently  indicated.  Doll  v.  Feller,  16  Cal. 
432.  Where  the  complaint  gives  the  name 
of  the  county  where  suit  is  brought,  but 
fails  to  mention  the  state,  there  is  no  fatal 
defect.  More  v.  Del  Valle,  28  Cal.  170.  A 
description  of  the  premises  as  being  in  a 
certain  county  and  state,  giving  the  num- 
ber of  acres,  the  commonly  known  name  of 
the  property,  and  also  the  distance  in  a 
certain  direction  from  a  named  town,  is 
sufficient.     Whitney    v.    Buckman,    19    Cal. 


Legislation  §  455.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  58,  which  read:  "In  an 
action  for  the  recovery  of  real  property,  such 
property  shall  be  described,  with  its  metes  and 
bounds,   in  the   complaint." 

Sufficiency  of  description  of  realty.     A 

description  by  name  may  be  sufficient, 
where  the  land  is  known  by  a  particular 
name.  Hildreth  v.  White,  66  Cal.  549;  6 
Pac.  454.  A  description  of  land  by  name 
is  as  good  as  one  by  metes  and  bounds,  if 
it  can  be  rendered  certain  by  evidence; 
and  the  fact  that  the  Spanish  name  of 
property,  when  translated  into  English,  is 
meaningless,  does  not  alter  or  aflfect  its  de- 
scriptive quality.  Castro  v.  Gill,  5  Cal.  40; 
People  V.  Leet,  23  Cal.  161;  Phelan  v. 
Poyoreno,  74  Cal.  448;  13  Pac.  681;  16  Pac. 
241.  A  description  is  sufficient,  where  a 
ranch  is  designated  by  name,  with  the 
statement  that  it  is  bounded  by  certain 
misions,  and  contains  si.K  square  leagues. 
More  V.  Del  Valle,  28  Cal.  170.  The  de- 
scription of  land  in  a  complaint,  as  being 
in  a  certain  township,  county,  and  state, 
and  bounded  on  one  side  by  a  certain 
avenue,  and  on  the  other  side  by  the  land 
of  a  certain  person,  and  on  the  other  two 
sides  by  a  certain  creek,  is  sufficient.  Hihn 
V.  Mangenberg,  89  Cal.  268;  26  Pac.  968; 
Lawrence  v.  Davidson,  44  Cal.  177.     A  de- 


§456 


GENERAL   RULES   OF   PLEADING. 


396 


300.  The  sufficiency  of  the  description  of 
the  premises  is  a  question  of  fact  for  the 
court  or  jury  to  determine,  where  the  de- 
scription does  not  appear,  on  the  face  of 
the  complaint,  to  be  insufficient.  Moss  v. 
Shear,  30  Cal.  467.  A  description  giving 
the  starting-point  as  a  certain  distance 
from  a  government  base  line,  thence  east 
a  given  distance,  thence  south  to  a  certain 
point,  thence  west  to  the  source  of  a  cer- 
tain creek,  and  down  said  creek  to  place 
of  beginning,  is  sufficient.  Carpentier  v. 
Grant,  21  Cal.  140.  In  actions  before  jus- 
tices of  the  peace,  strictness  of  description 
is  not  required;  and  the  identification  is 
sufficient,  where  the  premises  are  described 
as  a  tract  of  land  in  a  certain  county,  ten 
miles  from  a  certain  town,  of  a  given  num- 
ber of  acres,  known  as  part  of  a  certain 
ranch,  on  the  west  side  of  and  bordering 

§  456.  Judgments,  how  pleaded.  In  pleading  a  judgment  or  other  deter- 
mination of  a  court,  officer,  or  board,  it  is  not  necessary  to  state  the  facts 
conferring  jurisdiction,  but  such  judgment  or  determination  may  be  stated 
to  have  been  duly  given  or  made.  If  such  allegation  be  controverted,  the 
party  pleading  must  establish  on  the  trial  the  facts  conferring  jurisdiction. 


a  certain  creek,  and  opposite  the  premises 
of  a  certain  person.  Hernandez  v.  Simon, 
4  Cal.  182. 

CODE  COMMISSIONERS'  NOTE.  This  sec- 
tion formerly  was  as  follows:  "In  an  action  for 
the  recovery  of  real  property,  such  property  shall 
be  described,  with  its  metes  and  bounds,  in  the 
complaint."  Foreclosure  suits  were  not  controlled 
by  this  section  (Emeric  v.  Tams,  6  Cal.  156); 
and  under  this  section  as  it  then  stood,  it  was 
held  that  a  complaint  describing  land  by  a  cer- 
tain name  was  as  good  a  description  as  one  by 
metes  and  bounds,  if  it  can  be  rendered  suffi- 
ciently certain  by  evidence.  Castro  v.  Gill,  5 
Cal.  40;  Stanley  v.  Green,  12  Cal.  148;  see  also 
Doll  V.  Fellers,  16  Cal.  432 ;  Whitney  v.  Buck- 
man,  19  Cal.  300;  Paul  v.  Silver,  16  Cal.  73; 
Green  v.  Palmer,  15  Cal.  411;  76  Am.  Dec.  492; 
Grady  v.  Early,  13  Cal.  103;  Carpentier  v. 
Grant,  21  Cal.  140;  Moss  v.  Shear,  30  Cal.  468. 
The  language  of  the  section,  as  it  now  stands, 
seems  to  express  the  general  intent  of  the  decis- 
ions of  our  supreme  court.  For  description  of 
real  property,  see  Piercy  v.  Crandall,  34  Cal.  344. 


Judgment  as  an  estoppel.     See  post,  §  1908. 

Legislation  §  456.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  59  (New  York  Code, 
§161).  When  enacted  in  1872,  (1)  the  words 
"court,  officer,  or  board,  it  is  not"  were  changed 
from  "court  or  officer  of  especial  jurisdiction,  it 
shall  not  be,"  and  (2)  the  word  "must"  was 
changed  from  "shall  be  bound  to." 

Jurisdiction  of  a  superior  court.  A  gen- 
eral averment  of  the  jurisdiction  of  the 
court  that  rendered  judgment  is  sufficient 
(Murdock  v.  Brooks,  38  Cal.  596),  and  im- 
plies all  things  essential  to  jurisdiction. 
Hibernia  Sav.  &  L.  Soc.  v.  Boyd,  1.55  Cal. 
193;  100  Pac.  239.  An  allegation,  that  the 
plaintiff  recovered  judgment  in  the  su- 
perior court  is  sufficient.  McCutcheon  v. 
Weston,  6.5  Cal.  37;  2  Pac.  727;  Campe  v. 
Lassen,  67  Cal.  139;  7  Pac.  430;  Weller 
V.  Dickinson,  93  Cal.  108;  28  Pac.  8.54;  High 
V.  Bank  of  Commerce,  9.5  Cal.  386;  29  Am. 
St.  Eep.  121;  30  Pac.  556.  An  allegation, 
that  the  court  "adjudged"  that  the  defend- 
ant "should  pay"  to  the  plaintiff  a  certain 
sum,  is  not  a  sufficient  allegation  that  the 
judgment  was  duly  given.  Edwards  v.  Hel- 
lings,  99  Cal.  214;  33  Pac.  799.  An  allega- 
tion that  an  appeal  was  dismissed  by  the 
superior  court,  if  not  complying  with  this 
section,  is  cured  by  an  allegation  in  the 
answer,  that  the  court  made  an  order  that 
the  aj)peal  be  <lismissed,  which  said  judg- 
ment was  duly  made,  duly  rendered,  and 
duly  given.  Moffat  v.  Green  wait,  90  Cal. 
368;  27  Pac.  2!t6. 

Appointment  of  assignees  and  receivers. 
The  appointment  of  an  assignee  in  insol- 
vency is  sufficiently  alleged  by  an  aver- 
ment that  he  was  appointed  by  an  order  of 
the  proper  court  "duly  given  and  made." 
Bull  v.  Houghton,  65  Cal.  422;  4  Pac.  529. 
An   allegation,    that   the   court   duly   gave 


and  made  an  order  appointing  an  assignee 
on  the  return-day  of  notice  to  the  credi- 
tors, and  a  finding  that  the  order  was 
duly  given  and  maile,  constitute  a  sufficient 
averment  and  finding.  Pomeroy  v.  Gregory, 
66  Cal.  5(2;  6  Pac.  492.  An  allegation, 
that  the  court,  by  its  order  duly  given, 
made,  and  entered,  discharged  an  assignee 
from  all  further  duty  as  such,  and  by  an- 
other order,  then  duly  given,  made,  and 
entered,  appointed  another  assignee,  is  suffi- 
cient to  allege  jurisdiction  to  appoint  an- 
other assignee.  Freeman  v.  Spencer,  128 
Cal.  394;  60  Pac.  979.  An  allegation  that 
the  order  appointing  a  receiver  was  duly 
made,  is  equivalent  to  an  allegation  that 
all  jurisdictional  prerequisites  to  the  ap- 
pointment existed.  Title  Insurance  etc.  Co. 
V.  Grider,  152  Cal.  746;  94  Pac.  601. 

Jurisdiction  of  a  probate  court.  The  ju- 
risdiction of  a  probate  court  need  not  be 
alleged  in  pleading  a  judgment  of  such 
court,  but  the  judgment  may  be  stated  to 
have  been  duly  given  and  made.  Beans  v. 
Emanuelli.  36  Cal.  117;  Wise  v.  Hogan,  77 
Cal.  184;  19  Pac.  27S;  Smith  v.  Andrews, 
6  Cal.  652.  The  jurisdiction  of  the  su- 
perior court  to  appoint  administrators  and 
executors  need  not  be  alleged.  Collins  v. 
O'Laverty,  136  Cal.  31;  68  Pac.  327;  Judah 
V.  Fredericks,  57  Cal.  389.  A  defective 
allegation,  that  the  plaintiff,  by  order  and 
decree  of  the  court,  was  duly  appointed 
administrator,  and  duly  qualified  as  such, 
is  cured  by  admissions  and  averments  in 
the  answer,  recognizing  the  representative 
character  of  the  plaintiff  as  administrator. 
Kreling  v.  Kreling,  118  Cal.  413;  50  Pac. 
546.  An  allegation,  that  letters  of  admin- 
istration were  issued  by  the  su[)erior  court 
to  the  plaintiff,  who  duly  qualified  as  ad- 


m 


JURISDICTION — JUSTICE,    MAYOR,  CITY   COUNCIL,   ETC. 


§456 


ministrator,  is  a  sufiitient  averment  of  the 
representative  capacity  of  the  plaintiff. 
McCutcheon  v.  Weston,  65  Cal.  37;  2  Pac. 
727.  A  complaint  averring  that  a  will  ha<l 
been  duly  probated  by  the  sujierior  court 
of  the  county  where  the  deceased  resided 
and  owned  property  at  the  time  of  his  de- 
cease, is  a  suliicient  allegation  that  the 
will  was  admitted  to  probate  by  the  judg- 
ment of  the  superior  court:  if  the  judg- 
ment admitting  the  will  to  probate  is 
])Jeaded  at  all,  the  adverb  "duly"  is  all  that 
is  required.  Riddell  v.  Harrcll,  71  Cal.  254; 
12  Pac.  67. 

Jurisdiction  of  a  justice  of  the  peace. 
The  jurisdiction  of  a  justice  of  the  peace 
must  be  atiirniatively  shown  by  a  party 
asserting  a  right  under  a  judgment  by  such 
justice.  Swain  v.  Chase,  12  ("al.  2S3;  Row- 
ley V.  Howard,  23  Cal.  401;  .Jolley  v.  Foltz, 
34  Cal.  321.  An  allegation,  in  an  answer, 
that  a  judgment  given  by  a  justice  of  the 
peace  was  "duly  rendered,"  is  not  suffi- 
cient: that  term  is  not  equivalent  to 
"given  or  made."  Young  v.  Wright,  52  Cal. 
407. 

Jurisdiction  of  a  mayor.  An  allegation, 
in  an  action  to  recover  moneys  from  a  city 
treasurer,  that  "an  order  was  made  and  en- 
tered by  the  mayor,"  removing  the  defend- 
ant from  office,  is  sufficient.  Los  Angeles 
V.  Melius,  59  Cal.  444. 

Jurisdiction  of  a  city  council.  An  alle- 
gation, that  a  city  council  "duly  passed 
and  adopted"  an  ordinance,  is  sufficient 
(Los  Angeles  v.  Waldron,  6.3  Cal.  283;  3 
Pac.  890);  as  is  also  an  allegation  that  a 
city  council  duly  made  and  gave  its  de- 
termination to  order  certain  work  done 
(Pacific  Paving  Co.  v.  Bolton,  97  Cal.  8; 
31  Pac.  625),  and  an  allegation,  in  an  ac- 
tion to  enforce  the  lien  of  a  street  assess- 
ment, that  all  the  several  acts  required  to 
be  done  by  said  city  council,  and  by  said 
superintendent  of  streets,  has  been  duly 
done,  made,  and  performed,  in  the  manner 
and  at  the  times  and  in  the  form  required 
by  law,  is  sufficient.  Bituminous  Lime  Rock 
etc.  Co.  v.  Fulton,  4  Cal.  Unrep.  151,  33 
Pac.  1117.  Though  a  complaint  alleges 
that  the  common  council  "duly  gave  and 
made"  its  order  and  resolution  ordering 
certain  work  to  be  done,  any  legal  intend- 
ment following  such  allegation  is  rendered 
ineffectual  by  the  pleading  of  a  resolution 
of  intention  showing  that  the  council  never 
acquired  jurisdiction.  Crouse  v.  Barrows, 
156  Cal.  154;  103  Pac.  894. 

Jurisdiction  of  a  Ijoard  of  supervisors. 
An  allegation  that  a  board  of  supervisors 
duly  made  and  passed  a  resolution  of  in- 
tention to  make  a  street  improvement,  is 
sufficient.  Buckman  v.  Hatch,  139  Cal.  53; 
72  Pac.  445.  An  allegation  that  a  contract 
was  signed  by  the  chairman  of  the  board 
of  supervisors,  under  the  authority  of  the 
board,  and  was  executed  in  pursuance  of 
Its  orders  and  determinations  in  that  be- 
half,   duly    given   and   made,   is   sufficient. 


Babcock  V.  Goodrich,  47  Cal.  -488.  An  alle- 
gation that  a  board  of  supervisors  duly  de- 
clared an  irrigation  district  duly  organized, 
is  not  an  averment  of  the  fact  or  acts  re- 
quired by  the  legislature  to  confer  jurisdic- 
tion on  the  board,  or  to  constitute  the 
organization  of  the  irrigation  district,  nor 
is  it  an  averment  that  the  order,  resolu- 
tion, or  declaration  of  the  board  of  super- 
visors had  been  duly  given  or  made.  Decker 
v.  Perry,  4  Cal.  Unrep.  488;  35  Pac.  1017. 
An  allegation  that  a  board  of  supervisors 
duly  made  and  passed  a  resolution  setting 
aside  an  assessment  for  street  improve- 
ment, and  directing  the  superintendent  to 
issue  a  new  one,  is  a  statement,  in  legal 
effect,  that  everything  necessary  to  be 
done  to  give  the  resolution  validity  had 
been  done.  Williams  v.  Bergin,  127  Cal. 
578;  60  Pac.  164.  It  is  sufficient  to  aver, 
substantially,  that  an  order  granting  a 
franchise  was  duly  given  or  made.  Gurnsey 
v.  Northern  California  Power  Co.,  7  Cal. 
App.  534;  94  Pac.  858.  Although  an  ordi- 
nance is  pleaded  by  implication  it  is  good 
against  a  general  demurrer.  Gurnsey  v. 
Northern  California  Powder  Co.,  7  Cal. 
App.  534;  94  Pac.  858;  Lane  v.  Williams, 
156  Cal.  269;  104  Pac.  301. 

Pleading  of  judgments  of  justices  and  other  in- 
ferior officers.    See  note  27  Am.  Dec.  144. 

CODE  COIUMISSIONERS'  NOTE.  1.  Gener- 
ally. In  th's  case  the  certificate  states  that 
A.  W.  Bradford  is  surro<;ate  of  the  city  and 
county  of  New  York,  and  acting  clerk  of  the 
surrogate's  court;  that  he  has  compared  the 
transcript  of  the  papers  with  the  original  rec- 
ords in  the  matter  of  the  estate  of  William 
Young,  and  finds  the  same  to  be  correct,  and  a 
true  copy  of  all  the  proceedings;  and  that  the 
certificate  is  in  due  form  of  law — in  testimony 
whereof  he  sets  his  hand  and  affixes  his  seal  of 
office.  We  do  not  see  what  more  could  be  re- 
quired to  authenticate  to  us  the  records  which 
the  officer  certifies.  If  the  papers  show  upon 
their  face  the  jurisdiction  of  the  court,  it  is  not 
necessary  that  the  complaint  should  aver  this 
jurisdiction;  and  if  it  were,  then  the  defect 
should  have  been  noticed  by  demurrer,  not  by 
motion  to  e.xclude,  or  objection  to  the  admissi- 
bility of  the  transcript.  Here  it  seems  the  sur- 
rogate is  judge  and  clerk  of  the  court.  This  be- 
ing so,  it  was  only  necessary  that  the  certificate 
should  state  the  main  facts  which  are  made  ne- 
cessary by  the  acts  of  Congress  to  the  authentica- 
tion of  the  records  of  a  court  which  has  both 
judge  and  clerk.  Low  v.  Burrows,  12  Cal.  188. 
In  an  action  on  a  note,  the  answer  alleged  the 
discharge  in  insolvency  of  defendant.  Plaintiff 
demurred  to  the  answer,  on  the  ground  that  it 
did  not  allege  that  the  note  was  described,  set 
forth,  and  included  in  defendant's  schedule.  It 
was  decided  that,  under  this  section  of  the  code, 
it  was  sufficient  to  allege  in  the  answer  that  a 
judgment  had  been  duly  rendered,  discharging 
defendant  from  the  demand  sued  on ;  and  that 
whether  the  demand  was  sufficiently  described 
was  matter  of  evidence,  to  be  determined  on  the 
trial,  by  inspection  of  the  record.  Hanscom  v. 
Tower,   17  Cal.  521. 

2.  Judgments  of  justices'  courts.  A  person  as- 
serting a  right  under  the  judgment  of  a  justice 
must  affirmatively  show  every  fact  necessary  to 
confer  such  jurisdiction.  Swain  v.  Chase,  12  Cal. 
283. 

3.  Judgment  of  a  probate  court.  Where  a 
judgment  of  the  prcihate  court  is  pleaded,  it  is 
unnecessary  to  allege  the  facts  conferring  juris- 
diction,  but   the  judgment  may  be   stated  to  have 


§457 


GENERAL    RULES    OF   PLEADING. 


398 


been  duly  rendered.    Beans  v.  Emanuelli,   36   Cal. 

4.  Judgment  of  a  board.  The  words  "or  board" 
are  an  addition  to  the  old  section.  See  Himmel- 
man  v.  Danos,  35  Cal.  448.  It  was  held  that 
a  complaint  to  recover  an  assessment  on  a  lot  in 


San  Francisco  for  street  improvements  should 
show,  either  by  general  or  special  averment,  a 
compliance,  by  the  board  of  supervisors,  with  all 
the  steps  prescribed  by  statute  to  confer  juris- 
diction upon  the  board.  Himme'iman  v.  Danos, 
35  Cal.  448. 


§457.  Conditions  precedent,  how  to  be  pleaded.  In  pleading  the  per- 
formance of  conditions  precedent  in  a  contract,  it  is  not  necessary  to  state 
the  facts  showing  such  performance,  but  it  may  be  stated  generally  that  the 
party  duly  performed  all  the  conditions  on  his  part,  and  if  such  allegation 
be  controverted,  the  party  pleading  must  establish,  on  the  trial,  the  facts 
showing  such  performance. 


Conditions   precedent.     See    Civ.    Code,  §§  1436 
et   seq. 

Legislation  §  457.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  60  (New  York  Code, 
§  162),  which  (1)  had  the  words  "shall  not  be,^ 
instead  of  "is,"  before  the  words  "not  necessary, 
and  (2)  the  word  "shall,"  instead  of  "must,"  be- 
fore "establish." 

General  allegation  of  performance.  An 
allegation,  that  the  plaintiff  did  all  the 
work  in  said  contract  mentioned,  and  duly 
performed,  on  his  part,  in  every  respect, 
the  said  work,  according  to  the  specifica- 
tions and  terms  of  the  contract,  sufficiently 
avers  performance:  it  is  not  a  statutory 
averment  of  performance  of  conditions 
precedent.  California  Improvement  Co.  v. 
Eeynolds,  123  Gal.  88;  55  Pac.  S02;  City 
Street  Improvement  Co.  v.  Marysville,  155 
Cal.  419;  23  L.  E.  A.  (K  S.)  317;  101  Pac. 
308.  An  allegation,  that  the  plaintiff  has 
fully  performed,  on  his  part,  all  the  cove- 
nants of  the  contract,  is  sufficiently  explicit 
(California  Steam  Nav.  Co.  v.  Wright,  6 
Cal.  258;  65  Am.  Dec.  511);  and  an  allega- 
tion, that  the  defendant  duly  performed 
all  the  conditions  of  the  contract  on  his 
part  to  be  kept  and  performed,  is  suffi- 
cient (Griffiths  v.  Henderson,  49  Cal.  5GG) ; 
as  is  also  an  allegation  that  the  plaintiff 
has  performed  all  and  singular  his  agree- 
ments and  covenants  with  the  defendant 
(Moritz  v.  LaA'elle,  77  Cal.  10;  11  Am.  St. 
Kep.  229;  18  Pac.  803);  and  an  averment 
that  the  plaintiff  has  duly  performed  all 
of  the  conditions  of  said  contract  to  be 
performed  by  him  to  this  time.  Smith  v. 
Mohn,  87  Cal.  489;  25  Pac.  696.  Certain 
conditions  subsequent,  the  non-performance 
thereof,  matters  of  defense,  and  certain 
negative  prohibited  acts,  need  not  be 
pleaded  by  the  plaintiff;  but  the  rule  does 
not  extend  to  the  essence  of  the  cause  of 
action.  Arnold  v.  American  Ins.  Co.,  148 
Cal.  660;  84  Pac.  182.  A  complaint  that 
avers  a  full  performance  of  the  contract,  is 
sufficient,  in  the  absence  of  a  special  de- 
murrer for  uncertaintv.  Wyman  v.  Hooker, 
2  Cal.  App.  36;  83"  Pac.  79.  It  is  not 
necessary  to  plead  specially  the  facts  con- 
stituting an  estoppel.  City  Street  Improve- 
ment Co.  V.  Marvsville,  155  Cal.  419;  23 
L.  R.  A.  (N.  S.)  317;  101  Pac  308.  This 
section  applies  to  building  contracts.  Need- 
ham  V.  Chandler,  8  Cal.  App.  124;  96  Pac. 
325. 


Conditions  precedent.  Conditions  prece- 
dent must  be  pleaded  in  all  cases,  except- 
ing those  arising  out  of  contract.  People 
V.  Holladay,  25  Cal.  300;  Cavillaud  v. 
Yale,  3  Cal.  108;  58  Am.  Dec.  388;  Rogers 
V.  Codv,  S  Cal.  324;  Kelly  v.  Mack,  45  Cal. 
303;  Laffey  v.  Kaufman,  134  Cal.  391;  86 
Am.  St.  Rep.  283;  66  Pac.  471.  No  obliga- 
tion of  a  contract  is  regarded  as  a  condi- 
tion precedent,  unless  made  so  by  the 
express  terms  of  the  contract,  or  by  neces- 
sary implication;  whether  the  condition  is 
precedent  or  otherwise,  the  breach  of  it 
does  not  constitute  a  defense.  Redpath  v. 
Evening  Express  Co.,  4  Cal.  App.  361;  88 
Pac.  287. 

Demand  for  deed.  A  vendee  is  not  re- 
quired to  allege  demand  for  a  deed  from 
vendor,  before  commencing  suit  to  recover 
damages  for  breach  of  contract  to  convey 
land.  Gray  v.  Dougherty,  25  Cal.  266.  An 
answer  alleging  a  demand,  and  also  alleg- 
ing that  the  defendants  have  duly  per- 
formed all  the  requirements  of  said  deed 
of  trust  and  agreement  on  their  part  to 
be  performed  as  a  condition  precedent  to 
the  sale  of  the  land,  is  sufficient,  as  against 
an  objection  that  no  demand  in  writing  is 
alleged.  Meetz  v.  Mohr,  141  Cal.  667;  75 
Pac.  29S. 

Performance  of  conditions  of  policy. 
An  allegation,  that  all  the  conditions  of 
said  policy  were  duly  performed  and  kept 
by  the  plaintiff,  is  sufficient  (Blasingame 
V.  Home  Insurance  Co.,  75  Cal.  633;  17  Pac. 
925) ;  as  is  also  an  allegation  that  the  plain- 
tiffs have  duly  complied  with  all  the  terms 
and  conditions  of  said  insurance  policy  by 
them  to  be  kept  or  performed.  Richards 
V.  Travelers  Ins.  Co.,  89  Cal.  170;  23  Am. 
St.  Rep.  455;  26  Pac.  762.  The  plaintiff 
is  required,  in  his  complaint,  only  to  aver 
the  performance  of  the  prescribed  condi- 
tions; but  in  case  of  a  promissory  warranty 
that  he  will  do  something,  an  aver- 
ment of  such  stipulation,  and  of  its  per- 
formance, is  required.  Cowan  v.  Phenix 
Ins.  Co.,  78  Cal.  181;  20  Pac.  408;  and  see 
Breedlove  v.  Norwich  Union  Fire  Ins.  Soc, 
124  Cal.  164;  56  Pac.  770;  Gillon  v.  North- 
ern Assurance  Co.,  127  Cal.  480;  59  Pac. 
901.  Where  the  policy  provided  for  the 
production  of  a  certificate  of  a  magistrate, 
notary,  or  commissioner,  stating  that  he 
has  examined  the  circumstances  attending 


3D9 


PERFORMANCE  OF  CONDITIONS — STATUTE  OF   LIMITATIONS. 


§458 


the  loss,  etc.,  an  allegation  that  the  plain- 
tiff has  duly  fulfilled  all  the  conditions  of 
such  insurance  on  his  i)art  is  sufMcicnt. 
Ferrer  \.  Home  Mutual  Ins.  Co.,  47  Cal. 
416.  A  waiver  of  y)ayinont  of  premium  is 
admissible,  under  the  general  allegation 
of  j)erformance  of  conditions.  Berliner  v. 
Travelers  Ins.  Co.,  121  Cal.  451;  5:5  Pac. 
9:^2.  In  an  action  on  a  policy  insuring  a 
building  while  occupied  as  a  dwelling- 
house,  a  failure  to  allege  that  the  loss  oc- 
curred while  the  building  was  so  occupied 
is  fatal  (Allen  v.  Home  Insurance  Co.,  133 
Cal.  29;  65  Pac.  K'.S):  the  allegation  of 
such  fact  is  of  the  essence  of  the  right  to 
recover,  and  is  not  merely  a  condition 
precedent.  Raulet  v.  Northwestern  Na- 
tional Ins.  Co..  157  Cal.  213;   107  Pac.  292. 

CODE  COMMISSIONERS'  NOTE.  If  the  ac- 
tion is  on  an  executory  contract,  and  each  party 
has  somethinj  to  perforin  before  the  other  can 
be  placed  entirely  in  default,  the  party  seeking 
to  enforce  it  aeainst  the  other  must  aver  in  his 
complaint  a  performance  or  tender  of  perform- 
ance,   or    a    readiness    to    perform,    on    his    part. 

§458.  Statute  of  limitations,  how  pleaded.  In  pleading  the  statute  of 
limitations  it  is  not  necessary  to  state  the  facts  showing  the  defense,  but  it 
may  be  stated  generally  that  the  cause  of  action  is  barred  by  the  provisions 

of  section  (giving  the  number  of  the  section  and  subdivision  thereof. 

if  it  is  so  divided,  relied  upon)  of  the  Code  of  Civil  Procedure;  and  if  sucli 
allegation  be  controverted,  the  party  pleading  must  establish,  on  the  trial, 
the  facts  showing  that  the  cause  of  action  is  so  barred. 

Legislation  §  458.      Knacted  March  11,  18T2, 


Rarron  v.  l>iiik.  30  Cal.  486;  see  Mickle  ▼.  San- 
chez, 1  Cal.  200.  An  averment  that  the  plaintiff 
has  fully  performed,  on  his  part,  all  conditions 
of  the  contract,  is  an  allegation  of  performance 
sufiiciently  explicit  under  this  section.  California 
Steam  Nav.  Co.  v.  Wripht,  ti  C.&\.  2.'>8;  65  Am. 
Dec.  511.  A  general  statement  of  the  perform- 
ance of  conditions  precedent,  is  sufficient  in  cases 
of  contract,  but.  in  all  oilier  cases,  the  facts 
.showing  a  performance  mu.st  be  specially  pleaded. 
If  an  act  of  the  lecislature  prescribes  conditions 
precedent  on  the  i)erformance  of  which  title  to 
land  may  be  recovered,  in  pleading  such  title  a 
performance  of  all  ihe  acts  required  under  the 
law  must  be  averred.  People  v.  Jackson,  24  Cal. 
G.30;  see  al.so.  generally,  Benslev  v.  Atwill,  12 
Cal.  231;  Gibbons  v.  Scott,  15  Ca'l.  284;  Himme! 
man  v.  Danos.  35  Cal.  448.  The  perfor;iiance 
of  all  conditions  which  are  precedent  to  the  lia- 
bility of  the  defendant,  whether  founded  upon  a 
contract  or  a  statute,  must  be  alleged  in  some 
form,  either  general  or  special.  In  actions  upon 
contracts,  a  general  allegation  of  performa'ice  of 
conditions  precedent  is  under  this  section  (§  457) 
of  the  code  sufficient.  Hut  a  general  allei;atioii 
of  performance  of  conditions  prescribed  by  a  stat- 
ute has  not  been  so  declared,  and  is  not,  there- 
fore, sufficient.  Himinelman  v.  Danos,  35  Cal. 
448;  citing  the  cases  of  Dye  v.  Dye,  11  Cal.  163; 
People  V.  Jackson,  24  Cal.  630. 


Eeference  to  section  of  statute  of  limita- 
tions. Setting  up  the  statute  of  limita- 
tions by  reference  to  sections  of  this  code, 
is  a  sufficient  pleading  of  a  prescriptive 
right.  Alhambra  Addition  Water  Co.  v. 
Richardson,  72  Cal.  598;  14  Pac.  379; 
Churchill  v.  Louie,  135  Cal.  608;  67  Pac. 
1052.  The  statute  of  limitations  is  suffi- 
ciently pleaded  by  reference,  in  the  an- 
swer, to  the  sections  of  the  code.  Packard 
V.  Johnson,  2  Cal.  Unrep.  365;  4  Pac.  632; 
Alhambra  Addition  Water  Co.  v.  Richard- 
son, 72  Cal.  598;  14  Pac.  379;  Webber  v. 
Clarke,  74  Cal.  11;  15  Pac.  431;  Allen  v. 
Alien,  95  Cal.  184;  16  L.  R.  A.  646;  30 
Pac.  213.  The  defense  of  the  statute  of 
limitations  may,  under  this  section,  be 
pleailed  by  a  mere  reference  to  the  sec- 
tions pleaded:  it  is  not  necessary  to  state 
the  facts.  Lillis  v.  People's  Ditch  Co.,  3 
Cal.  Unrep.  494;  29  Pac.  780;  Churchill  v. 
Woodworth,  148  Cal.  669;  113  Am.  St.  Rep. 
324;  84  Pac.  155.  By  the  averment  that 
the  action  is  barred  by  the  provisions  of  a 
designated  section  of  the  code,  the  statute 
is  sufficiently  pleaded.  Lilly-Brackett  Co. 
V.  Sounemann,  157  Cal.  192";  21  Ann.  Cas. 
1279;  106  Pac.  715.  A  plea  of  the  statute 
of  limitations,  alleged  in  the  form  pre- 
scribed by  this  section,  is  sufficient  for  all 
purposes.  Miller  v.  Lane,  160  Cal.  90;  116 
Pac.  58.     The  rule  established  by  this  sec- 


tion was  intended  to  simplify  the  form  of 
pleading  the  defense  of  the  statute  of  limi- 
tations, and  is  one  which  the  court  can- 
not depart  from  on  a  conjecture  that  the 
legislature  intended  to  except  from  its 
operation  cases  of  the  kind  provided  for 
by  §  361,  ante;  hence,  pleading  the  bar  of 
such  section  by  reference  to  its  number  is 
sufficient.  Allen  v.  Allen,  95  Cal.  184;  16 
L.  R.  A.  646;  30  Pac.  213.  In  pleading 
the  statute  of  limitations,  the  proper  course 
is  to  plead  the  section  establishing  the 
time  of  limitation,  omitting  all  reference 
to  explanatory  sections.  Webber  v.  Clarke, 
74  Cal.  11;  15  Pac.  431;  Hagely  v.  Hagely, 
68  Cal.  348;  9  Pac.  305.  Where  the  sec- 
tion contains  subdivisions,  pleading  the 
statute  by  reference  to  the  section  alone 
is  insufficient:  the  number  of  the  subdi- 
vision must  also  be  given.  W'olters  v. 
Thomas,  3  Cal.  Unrep.  843;  32  Pac.  565. 
In  pleading  the  defense  of  the  statute  of 
limitations,  it  is  not  necessary  to  set  up 
the  section  and  subdivision  of  the  statute. 
if  the  facts  showing  the  bar  of  the  statute 
are  alleged.  Osborn  v.  Hopkins,  160  Cal. 
501;  Ann.  Cas.  1913A,  413;  117  Pac.  519. 
The  legal  effect  of  pleading  the  bar  of  the 
statute  by  reference  to  the  section  relied, 
upon,  by  an  averment  that  the  action  is 
barred  by  that  section,  is  the  same  as  the 
plea  non  assumpsit  infra  sex  annos,  to 
which  the  reply  was  assumpsit  infra  sex 
annos.    Biddel  v.  Brizzolara,  56  Cal.  374. 


§459 


GENERAL   RULES   OF   PLEADING. 


400 


Allegation. of  limitations.  A  general  al- 
legation, that  the  action  is  barred  by  the 
statute  prescribing  two  or  any  other  num- 
ber of  years  as  the  limitation  for  bringing 
the  action,  is  insufEcient.  Sehroeder  v. 
Jahns,  27  Cal.  274.  An  allegation,  that 
the  cause  of  action  did  not  accrue  within 
two  years  next  "preceding  the  commence- 
ment' of  the  action,"  is  not  defective,  in 
alleging  a  conclusioil  of  law;  it  is  not  ne- 
cessary to  allege  that  it  was  more  than 
two  years  next  preceding  the  filing  of  the 
complaint.  Adams  v.  Patterson,  35  Cal. 
122.  An  allegation,  that  every  item  of  the 
said  account  prior  to  such  day  is  barred  by 
time,  and  defendant  pleads  and  relies  upon 
the  statute  of  the  state  of  California, 
entitled  "An  Act  defining  the  time  of  com- 
mencing civil  actions,"  in  bar  of  any  re- 
covery of  said  action,  is  fatally  defective. 
Caulfield  v.  Sanders,  17  Cal.  569.  An  aver- 
ment, in  an  action  for  personal  services, 
that  the  plaintiff's  cause  of  action  for  com- 
pensation for  said  services  did  not  accrue 
within  the  two  j'ears  next  before  the  com- 
mencement of  this  action,  is  sufficient  (Os- 
born  V.  Hopkins,  160  Cal.  501;  Ann.  Cas. 
1913A,  413;  117  Pac.  519);  but  a  plea,  not 
averring  that  the  cause  of  action  accrued, 
but  only  that  the  services  contracted  to  be 
performed  by  the  plaintiff  were  rendered, 
more  than  two  years  before  the  action  was 
brought,  is  insufficient.  Hartson  v.  Hardin, 
40  Cal.  264.  An  allegation  in  the  answer, 
that  the  defendant  has  been  in  the  quiet 
and  peaceable  possession  of  the  lands  in- 
volved, adversely  to  the  plaintiff,  for  a 
period  of  over  five  years,  will  be  construed 
to  relate  to  the  five  years  next  preceding 
the  filing  of  the  answer,  and  not  to  those 
preceding  the  commencement  of  the  ac- 
tion. Table  Mountain  Tunnel  Co.  v.  Strana- 
han,  31  Cal.  387.  An  allegation,  that  the 
action  is  barred  by  the  statute,  is  not  a 
statement  of  fact,  but  a  mere  conclusion 
of  law.    Sehroeder  v.  Jahns,  27   Cal.   274; 


Table  Mountain  Tunnel  Co.  v.  Stranahan, 
31  Cal.  387.  Where  the  defendant  pleads 
the  bar  of  the  statute,  it  is  not  necessary 
for  him  to  rebut,  in  advance,  matter  which 
the  plaintiff'  might  set  up  in  avoidance. 
Anderson  v.  Fisk,  36  Cal.  625.  Where  the 
statute  of  limitations  applying  only  to  a 
particular  class  of  cases  is  intended  to  be 
relied  upon,  it  must  be  pleaded  specially; 
a  plea  of  the  general  statute  is  not  suffi- 
cient. Howell  V.  Eogers,  47  Cal.  291. 
When  pleading  the  bar  of  the  statute, 
under  the  old  rule  the  facts  were  required 
to  be  stated,  and  the  court  aiiplied  the 
law:  it  was  not  necessary  for  the  defend- 
ant to  plead,  in  separate  defenses,  all  the 
statutes  on  which  he  intended  to  rely. 
Boyd  V.  Blankman,  29  Cal.  19;  87  Am.  Dec. 
146. 

Burden  of  proof.  If  controverted,  it 
devolves  upon  the  defendant  to  show  that 
a  cause  of  action  is  barred.  Black  v.  Ver- 
mont Marble  Co.,  1  Cal.  App.  718;  82  Pac. 
1U6U. 

Waiver  of  manner  of  pleading.  An  ob- 
jection to  the  nian)ier  of  pleading  the  bar 
of  the  statute  is  waived  by  failure  to  urge 
it  in  the  trial  court.  Churchill  v.  Wood- 
worth,  148  Cal.  669;  113  Am.  St.  Rep.  324; 
84  Pac.  155. 

Finding  as  to  limitations.  It  is  not 
necessarj'^  to  find,  in  direct  language,  that 
the  action  is  barred  by  the  statute:  to  find 
the  facts  which  show  that  it  is  so  barred 
is  sufficient.  O'Neill  v.  Quarnstrom,  6  Cal. 
App.  469,  92  Pac.  391. 

CODE  COMMISSIONERS'  NOTE.  The  com- 
missioners say,  in  their  reyurt,  that  they  intro- 
duced this  section,  believing  that  a  pleading 
under  it  will  be  more  concise,  and  at  the  same 
time  will  afford  to  the  opposite  party  all  the  in- 
formation necessary  to  enable  him  to  meet  the 
defense  made.  The  utility  of  the  section  is  mani- 
fest. For  instance,  if  the  action  be  for  the  re- 
covery of  the  possession  of  a  mining:  claim, 
instead  of  the  lengthy  averments  now  required, 
the  plea  will  be  as  follows:  "Defendant  avers 
that  the  cause  of  action  is  barred  by  the  provis- 
ions of  §  320  of  the  Code  of  Civil  Procedure." 


§  459.  Private  statutes,  how  pleaded.  In  pleading  a  private  statute,  or 
an  ordinance  of  a  county  or  municipal  corporation,  or  a  right  derived  there- 
from, it  is  sufficient  to  refer  to  such  statute  or  ordinance  by  its  title  and 
the  day  of  its  passage.  In  pleading  the  performance  of  conditions  precedent 
under  a  statute  or  an  ordinance  of  a  county  or  municipal  corporation,  or  of 
a  right  derived  therefrom,  it  is  not  necessary  to  state  the  facts  showing  such 
performance,  but  it  may  be  stated  generally  that  the  party  duly  performed 
all  the  conditions  on  his  part  required  thereby ;  if  such  allegations  be  con- 
troverted the  party  pleading  must  establish  on  the  trial  the  facts  showing 
such  performance. 


Legislation  ft  459.  1.  Enacted  March  11.  1873; 
based  on  Practice  Art,  §  61  (New  York  Code, 
§  163),  which  read:  "In  pleading  a  private  stat- 
ute, or  a  right  derived  therefrom,  it  shall  be 
Kufficient  to  refer  to  such  statute  by  its  title  and 
the  day  of  its  passage,  and  the  court  shall  there- 
upon take  judicial  notice  thereof."  When  en- 
acted in  1872,  (1)  the  word  "shall,"  before  "suffi- 
cient,"   was   changed   to   "is,"   and    (2)    the   final 


clause,    beginning   "and   the   court,"   was   stricken 
out. 

2.  Amendment  by  Stats.  1901,  p.  135;  un- 
constitutional.   See  note  ante,  §  .'>. 

3.  Amended  by  Stats.  1907,  p.  707;  the  code 
commissioner  saying,  "The  words  'or  an  ordi- 
nance of  a  county  or  municipal  corporation'  have 
been  added  in  the  first  sentence,  and  the  whole 
of  the  second  sentence  has  been  added,  the  latter 


401 


ORDINANCES — LIBEL    AND   SLANDER ANSWER. 


§§460,  -iGl 


amendment  beinp  made  on  the  suggestion   of  the 
attorney^encral." 

Pleading  ordinances.  The  provision  of 
§  765  of  the  Municipal  Corporation  Act, 
that  it  shall  not  be  necessary  to  plead  or 
to  prove  the  existence  or  valiility  of  any 
ordinance  of  a  city  of  the  fifth  class,  is 
unconstitutional,  being  a  special  statute; 
hence,  an  ordinance  of  a  city  of  the  fifth 
class  is  subject  to  the  provisions  of  this 
section,  ami  therefore  pleading  an  ordi- 
nance as   "that  certain   ordinance  of   said 


city,  known  as  ordinance  No.  00,"  is  in- 
sufficient. Tulare  v.  Hovren,  12G  Cal.  22(i; 
58  Pac.  530.  Although  the  various  ordi- 
nances are  not  set  out  in  ha?c  verba,  nor 
pleaded  as  authorized  by  this  section,  yet, 
as  against  a  general  demurrer,  their  ex- 
istence must  be  considered.  Amestoy  v. 
Electric  etc.  Transit  Co.,  95  Cal.  31  f;  30 
Pac.  550. 

CODE  COMMISSIONERS'  NOTE.    See  Dye  v. 
Dye,   11   Cal.   163. 


§  460.  Libel  and  slander,  how  stated  in  complaint.  In  an  action  for  libel 
or  slander  it  is  not  necessary  to  state  in  the  complaint  any  extrin.sic  facts 
for  tlie  purpose  of  showing  the  application  to  the  plaintiff  of  the  defamatory 
matter  out  of  which  the  cause  of  action  arose;  but  it  is  sufficient  to  state, 
generally,  that  the  same  was  published  or  spoken  concerning  the  plaintiff; 
and  if  such  allegation  be  controverted,  the  plaintiff  must  establish  on  the 
trial  that  it  was  so  published  or  spoken. 

Libel  and  slander.    See  Civ.  Code,  §§44etseq.        Dreyfus,  122  Cal.  58;  54  Pac.  389.     "Where 

it  is  alleged  that  the  words  were  spoken 
of  and  concerning  the  plaintiff,  and  in  the 
presence  and  hearing  of  the  plaintiff  and 
others  named,  an  allegation  that  they  were 
understood    by    those    who    heard    them    is 


Legislation  §  460.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  62  (New  York  Code, 
§  164),  which  had  (1)  the  words  "shall  not,"  in- 
stead of  "is,"  in  the  first  line,  (2)  the  words 
"shall  be,"  instead  of  "is,"  before  "sufficient," 
and  (3)  the  word  "shall,"  instead  of  "must," 
before  "establish." 

Libelous  words.  An  allegation  that 
words  were  spoken  of  and  concerning  the 
plaintiff  is  sufficient,  where  such  words  are 
actionable  per  se.  Rhodes  v.  Naglee,  66 
Cal.  677;  6  Pac.  863;  Hitchcock  v.  Caruth- 
ers,  82  Cal.  523;  23  Pac.  48.  The  induce- 
ment and  the  colloquium  are  dispensed 
with  by  this  section;  and  if  the  words 
charged  are  libelous  in  themselves,  the 
plaintiff  is  required  to  allege  only  that 
they  were  spoken  "of  and  concerning  the 
plaintiff";  if  not  libelous  in  themselves, 
or  if  they  require  proof  to  determine  their 
meaning  or  to  show  that  they  are  libelous, 
or  if  they  are  in  a  foreign  language,  it  is 
necessary  to  make  such  allegation  as  will 
show  them  to  be  actionable;  but  where  the 
words  are  in  the  English  language,  it  will 
be  presumed  that  they  are  understood  by 
the  person  hearing  them,  and  an  allega- 
tion to  that  effect  is  not  required;  the 
statute  dispenses  with  the  innuendo  and 
the  colloquium,  only  so  far  as  they  ^ow 
that  the  defamatory  words  applied  to  the 
plaintiff.  Harris  v.  Zanone,  93  Cal.  59;  28 
Pac.  845.  The  office  of  the  innuendo  is, 
merely,  to  interpret  the  meaning  of  the 
language  used;  and  if  the  natural  import 
of  the  language  is  not  actionable,  the 
innuendo  cannot  serve  to  introduce  a 
broader  meaning  to  make  it  so.    Grand  v. 

§  461.  Answer  in  such  cases.  In  the  actions  mentioned  in  the  last  section 
the  defendant  may,  in  his  answer,  allege  both  the  truth  of  the  matter 
charged  as  defamatory,  and  any  mitigating  circumstances,  to  reduce  the 
amount  of  damages;  and  whether  he  prove  the  justification  or  not  he  may- 
give  in  evidence  the  mitigating  circumstances. 

1  Fair. — 26 


unnecessary.     Rhodes    v.    Naglee     66    Cal. 
677;  6  Pac.  863. 

Libel  in  foreign  language.  A  libel  pub- 
lished in  a  foreign  language  mav  be 
pleaded  by  using,  instead  of  a  copy  of  the 
original,  a  correct  translation,  alleging  it 
to  be  such.  Stevens  v.  Kobavshi,  20  Cal 
App.  153;  128  Pac.  419.  Where  the  .Japa- 
nese word  "mekake"  may  be  translated 
either  "mistress"  or  "concubine,"  the  use 
of  theword  "concubine,"  in  rendering  that 
word  into  English,  is  immaterial,  and  an 
objection  based  on  the  use  of  the  latter 
word  cannot  be  sustained.     Id. 

CODE   COMMISSIONERS'  NOTE.     Where  the 

words  complained  of  were  not.  in  themselves 
libelous,  it  should  be  averred  what  the  defendant 
intended  and  understood  them  to  mean,  and  what 
they  were  understood  to  mean  by  those  to  whom 
they  were  published.  And  where  the  complaint 
only  averred  a  libelous  intent  and  meaning  on 
deiendant  s  part  in  publishing  the  words,  yet  if 
there  was  no  averment  that  they  were  so  under- 
stood by  those  to  whom  they  were  published  the 
complaint  is  defective  and  demurrable.  Mav'nard 
V.  Inreman's  Fund  Ins.  Co.,  34  Cal.  57-  91  Am 
Dec.  672  citing  many  authorities,  and  araong^ 
them  the  following:  Goodrich  v.  Woolcott,  3  Cow 
2d9;  Andrews  v.  Woodmansee,  15  Wend  234- 
^  1*^°"  ,o- T^Y'"'*''™*'  '^  "^^'end.  320:  De.xter  v'. 
o^='''''nl^  1°^'^^-  239;  Peake  v.  Oldham,  1  Cowp. 
275;  98  Eng.  Reprint,  1083.  See  also,  gen- 
erally, Bradley  v.  Gardner,  10  Cal.  371-  Thrall 
V    Smiley,   9   Cal.   529;   Butler  v.  Howes,'   7   Cal 


§462 


GENERAL    RULES   OF   PLEADING, 


402 


Libel  and  slander.    See  Civ.  Code,  §§  44  et  seq. 

Legislation  8  461.  Enacted  March  11,  1873; 
rc-enactment  of  Practice  Act,  §  63  (New  York 
Code,  §  165). 

Justification  and  mitigation.  To  consti- 
tute a  .iustifieation,  the  answer  must  aver 
the  truth  of  the  defamatory  matter 
charged;  without  which,  the  facts  detailed 
can  avail  only  in  mitigation  of  damages; 
setting  up  facts  tending  only  to  establish 
the  truth  of  such  matter  is  insufficient. 
Thrall  v.  Smiley,  9  Cal.  529.  If,  in  a  libel 
suit,  the  defendant  pleads  justification,  he 
may  also  plead,  with  his  affirmance  of  good 
faith  and  honest  belief,  all  facts  and  cir- 
cumstances in  support  thereof,  within  his 
knowledge  at  the  time  of  the  publication, 
even  if  they  tend  to  establish  the  truth  of 
the  charge;  and  if  ke  desires  to  plead  jus- 
tification, and  also  the  truth  or  partial 
truth  in  mitigation,  he  must  plead  these 
facts  and  circumstances  in  mitigation. 
Davis  V.  Hearst,  160  Cal.  143;  116  Pac.  530. 
Only  such  mitigating  circumstances  as  were 
within  the  knowledge  of  the  defendant 
when  he  spoke  the  words  complained  of 
can  be  alleged  in  the  answer.  Barkly  v. 
Copeland,  74  Cal.  1;  5  Am.  St.  Rej).  413; 
15  Pac.  307.  The  mitigating  circum- 
stances permitted  to  be  pleaded  and  proved 
must  be  such  as  tend  to  rebut  the  pre- 
sumption of  malice,  or  to  reduce  its  de- 
gree; all  libels  are  conclusively  presumed 
to  be,  in  some  degree,  malicious;  but  there 
are  different  degrees  and  phases  of  malice; 
and   some   actionable   defamatory   publica- 

§462.  Allegations  not  denied,  when  to  he  deemed  true.  When  to  be 
deemed  controverted.  Every  material  allegation  of  the  complaint,  not  con- 
troverted by  the  answer,  must,  for  the  purposes  of  the  action,  be  taken  as 
true ;  the  statement  of  any  new  matter  in  the  answer,  in  avoidance  or  con- 
stituting a  defense  or  counterclaim,  must,  on  the  trial,  be  deemed  contro- 
verted by  the  opposite  party. 


tions  are  in  fact  published  without  actual 
malice;  it  is  eminently  just,  therefore, 
that  the  defendant,  with  a  view  to  reduce 
the  damages,  should  be  allowed  to  rebut 
the  presumption  of  malice  by  proof  of 
what  the  statute  terms  "mitigating  cir- 
cumstances," that  is  to  say,  the  circum- 
stances under  which  the  publication  was 
made,  and  the  real  motives  that  induced 
it;  but  absence  of  actual  malice  cannot  be 
shown  in  bar  of  the  action.  Wilson  v. 
Fitch,  41  Cal.  363;  Lick  v.  Owen,  47  Cal. 
252.  While  it  is  ordinarily  true  that  privi- 
lege is  to  be  pleaded  as  an  affirmative  mat- 
ter of  defense  to  an  action  for  libel,  yet 
W'here  the  complaint  shows  on  its  face 
that  the  publication  was  privileged,  the 
point  may  be  raised  on  general  demurrer. 
Gosewisch  v.  Doran,  161  Cal.  511;  Ann. 
Cas.  1913D,  442;  119  Pac.  656. 

Plea  of  justification  in  libel  or  slander.  See 
note  91  Am.  St.  Rep.  29':;. 

Pleading  the  truth  in  action  for  libel  or 
slander.    See  note  21  L.   K.  A.   511. 

Pleading  truth  as  a  defense  to  a  civil  action 
for  libel  and  slander.  See  note  31  L.  R.  A. 
(N.    S.)     138. 

CODE  COMMISSIONEES'  NOTE.  The  answer 
must  aver  the  truth  of  the  defamatory  matter 
charged,  if  justification  is  soupht.  Facts  which 
only  teud  to  establish  the  truth  of  such  matter 
are  not  sufficient  allegations.  Without  an  aver- 
ment of  its  truth,  the  fact  detailed  can  only  avail 
in  mitigation  of  damages.  Thrall  v.  Smil?y,  9 
Cal.  529.  The  defendant  may  prove  the  plain- 
tiff's words  immediately  after  defendant  uttered 
the  slanderous  words.  Bradley  v.  Gardner,  10 
Cal.  371. 


CroBS-complaint,  must  be  replied  to.  See  ante, 
§  442. 

Answers.     See  generally,  ante,  §  437. 
Material  allegations.    Post,  §  463. 

Legislation  §  462.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  65  (New  Yorli  Code, 
§  168),  as  amended  by  Stats.  1865-66,  p.  703, 
which  read:  "Every  material  allegation  of  the 
complaint  or  cross-complaint  not  controverted  by 
the  answer  thereto,  shall  for  the  purposes  of  the 
action  be  taken  as  true;  the  statement  of  matters 
in  avoidan'-e  shall  on  the  trial  be  deemed  contro- 
verted by  the  adverse  party." 

Material  allegations  must  be  contro- 
verted. Immaterial  allegations  in  a  com- 
plaint need  not  be  denied;  and  failure  to 
answer  them  is  not  an  admission.  Eacouil- 
lat  V.  Rene,  32  Cal.  450;  .Jones  v.  Petaluma, 
36  Cal.  230.  A  mere  denial  of  non-essential 
averments  of  a  complaint  is  an  admission  of 
all  that  is  essential  to  recovery.  Leffingwell 
v.  Griffing,  31  Cal.  231.  Allegations  in  an- 
ticipation of  the  defense  are  not  admitted 
by  failure  to  deny  them.  Canfield  v.  Tobias, 
21   Cal.  349.     General  denials  of  the  alle- 


gations of  a  complaint  do  not  amount  to  a 
specific  denial  thereof;  hence,  the  material 
allegations  of  a  verified  complaint  are  ad- 
mitted. Dewey  v.  Bowman,  8  Cal.  145; 
Kensley  v.  Tartar,  14  Cal.  508.  An  answer 
denying,  as  a  w^hole,  the  conjunctive  alle- 
gatioiis  of  a  verified  complaint,  is  evasive, 
and  an  admis,sion  of  the  allegations.  Fish 
V.  Redington,  31  Cal.  185.  Where  the  de- 
nial is  in  the  conjunctive,  and  does  not 
constitute  a  denial  of  the  averments  of  the 
complaint,  the  averments  are  admitted. 
Nolan  V.  Hentig,  138  Cal.  281;  71  Pac.  440. 
Where  the  answer  specifically  denies  only 
two  allegations  of  the  complaint,  all  the 
others,  well  pleaded,  are  admitted.  De  Ro 
V.  Cordes,  4  Cal.  117.  Where  the  com- 
plaint avers  that  work  was  done  in  con- 
sideration of  a  certain  promise,  and  the 
answer  only  denies  that  the  i)laintiff  did 
the  work,  no  proof  is  required  from  the 
plaintiff  as  to  the  consideration  upon  which 
it  was  performed.    Mathewson  v.  Fitch,  22 


403 


MATERIAL  ALLEGATIONS — FAILURE  TO  DENY. 


§462 


Cal.  86.  Conclusion  of  law  from  facts 
stated  do  not  call  for  a  denial.  Kidwell  v. 
Ketler,  146  Cal.  12;  79  Pac.  rA4.  Matters 
of  evidence  set  up  in  the  complaint  are  not 
admitted  either  by  a  failure  to  deny,  or  by 
a  defective  denial.  Racouillat  v.  Rene,  32 
Cal.  450.  In  an  action  for  divorce,  alle- 
gations of  residence  must  be  proven, 
whether  denied  or  not  (Bennett  v.  Bennett, 
28  Cal.  599);  and  if  the  complaint  avers 
the  marriage  of  the  plaintiff  and  the  de- 
fendant, failure  to  deny  the  averment  is 
an  admission  of  the  fact.  Fox  v.  Fox,  25 
Cal.  587.  The  first  clause  of  this  section 
applies  to  an  allegation  in  an  answer,  in 
an  action  upon  a  street  assessment,  that  a 
certain  resolution  was  not  "duly"  passed. 
Pacific  Paving  Co.  v.  Diggins,  4  Cal.  App. 
240;  87  Pac.  415.  An  allegation,  in  a  veri- 
fied complaint,  of  an  entry  by  the  defend- 
ant and  ouster  by  the  plaintiff,  is  admitted 
by  a  denial  in  the  answer,  that  the  defend- 
ant wrongfully  and  unlawfully  entered  and 
dispossessed  the  plaintiff:  such  denial  re- 
lates to  the  character,  and  not  to  the 
exi.stence,  of  these  facts.  Busenius  v.  Coffee, 
14  Cal.  91.  A  denial  that  the  defendant 
has  unlawfully,  wrongfully,  and  in  viola- 
tion of  the  plaintiff's  rights,  had  the  pos- 
session, etc.,  is  a  mere  denial  of  the 
character  and  not  of  the  fact  of  possession, 
and  is  an  admission  of  it,  and  such  admis- 
sion is  conclusive.  Burke  v.  Table  Moun- 
tain Water  Co.,  12  Cal.  403.  A  motion  for 
judgment  on  a  pleading  is  properly  granted, 
where  the  complaint  is  sufficient  in  all  re- 
spects, and  the  answer  does  not  deny  any  of 
the  material  allegations  thereof,  and  fails 
to  present  anything  by  way  of  new  matter 
to  bar  or  defeat  the  action.  San  Francisco 
v.  Staude,  92  Cal.  560;  28  Pac.  778;  Felch 
V.  Beaudry,  40  Cal.  439;  Hemme  v.  Hays, 
55  Cal.  337;  Loveland  v.  Garner,  74  Cal. 
298;  15  Pac.  844.  Wliere  the  complaint  al- 
leges that  an  assignment  of  guaranty  was 
made  for  a  good  consideration,  failure  to 
deny  the  allegation  is  an  admission  of  the 
consideration.  Cunningham  v.  Norton,  5 
Cal.  Unrep.  85;  40  Pac.  491.  Imperfect 
and  defective  denials,  if  acted  upon  at  the 
trial  as  sufficient,  are  in  no  sense  admis- 
sions of  the  allegations  of  a  pleading  which 
are  attempted  to  be  denied.  Loftus  v. 
Fischer,  106  Cal.  616;  39  Pac.  1064.  Ob- 
jections to  defective  denials  are  waived, 
if  not  taken  before  the  introduction  of 
evidence.  Tevis  v.  Hicks,  41  Cal.  123; 
Stockton  etc.  Agricultural  Works  v.  Glens 
Falls  Ins.  Co.,  121  Cal.  167;  53  Pac.  565. 
Where  the  denials  were  defective,  and  the 
plaintiff  had  gone  into  the  evidence  in  re- 
lation to  them  without  question,  it  is  proper 
to  refuse  to  instruct  that  certain  facts 
were  settled,  for  the  purposes  of  the  trial, 
by  the  admissions  of  the  defendant  in  not 
denying  them  in  his  answer.  Tvnan  v. 
Walker.  35  Cal.  634;  95  Am.  Dec.  152.  In 
passing  upon  a  motion  for  a  new  trial,  the 


court  may  proj)erly  consider  admissions 
which  follow  a  failure  to  deny  material 
allegations  of  the  complaint.  Blodgett  v. 
Scott,  11  Cal.  App.  310;   104  Pac.  842. 

When  allegations  In  complaint  deemed 
true.  There  is  no  issue  to  be  tried,  and 
the  material  allegations  of  the  complaint 
must  be  taken  as  true,  where  the  answer 
fails  to  put  them  in  issue,  or  to  confess  and 
avoid  them  (Patterson  v.  Ely,  19  Cal.  28; 
Brown  v.  Scott,  25  Cal.  189;  Fish  v.  Red- 
ington,  31   Cal.   185;   Pomeroy  v.   Gregory, 

06  Cal.  572,  574;  6  Pac.  492,  493;  Prentice 
v.  Miller,  82  Cal.  570;  23  Pac.  189;  Ortega 
V.  Cordero,  88  Cal.  221;  26  Pac.  80;  Lan- 
ders V.  Bolton,  26  Cal.  393;  McGowan  v. 
McDonald,  111  Cal.  57;  52  Am.  St.  Rep. 
149;  43  Pac.  418),  and  the  plaintiff  is  en- 
titled to  judgment  on  the  pleadings.  Blod- 
gett V.  Scott,  11  Cal.  App.  310;  104  Pac. 
S42.  The  failure  to  deny  allegations  of 
facts  which  create  a  presumption,  ailmits 
the  correctness  of  such  allegations,  and  the 
presumption  thus  created  by  law  operates 
to  cast  on  the  defendant  the  burden  of 
proof,  even  though  such  presumption  is  one 
of  evidence,  and  not  one  of  pleading;  its 
effect  is  to  require  a  statement,  in  the  com- 
plaint, of  matters  necessary  to  show  the 
right  to  recover;  but  it  does  not  compel 
the  formal  proof  of  matters  which,  being 
alleged,  are  admitted  either  expressly  or 
impliedly,  and  such  cases  are  subject  to 
the  general  rules  of  procedure  prescribed 
by  this  section.  Oakland  Bank  v.  Sullivan, 
107  Cal.  428;  40  Pac.  546;  Stockton  v. 
Dahl,  66  Cal.  377;  5  Pac.  682.  Allegations 
in  the  complaint,  not  controvertdl  in  the 
action,  must,  for  the  purposes  of  the  ac 
tion,  be  taken  as  true  (Crandall  v.  Parks, 
152  Cal.  772;  93  Pac.  1018);  they  become 
admitted  facts  in  the  case.  Merguire  \. 
O'Donnell,  103  Cal.  50;  36  Pac.  1033.  Facts 
distinctly  and  clearly  averred  in  the  com- 
plaint, and  not  denied  in  the  answer,  are 
admitted;  evidence  in  support  of  them  is 
unnecessary.  Hanson  v.  Fricker,  79  Cal. 
283;  21  Pac.  751.  Failure  to  deny  a  ma- 
terial allegation  of  a  complaint  is  an  ad- 
mission thereof:  a  finding  to  the  contrary 
is  erroneous.   Campe  v.  Lassen,  67  Cal.  139; 

7  Pac.  430.  All  the  material  allegations 
of  a  verified  petition,  in  the  nature  of  a 
complaint,  to  show  cause,  not  denied  under 
oath,  are  to  be  taken  as  true:  further  evi- 
dence in  support  of  them  is  unnecessary. 
California  Title  Ins.  etc.  Co.  v.  Consoli- 
dated Piedmont  Cable  Co.,  117  Cal.  237; 
49  Pac.  1.  Failure  to  deny  the  execution 
of  a  mortgage  containing  a  provision  for 
the  payment  of  attorneys'  fees,  where  the 
complaint  sets  up  the  mortgage  and  alleges 
its  due  execution,  is  an  admission  of  the 
right  to  attorneys'  fees.  Hubbard  v.  Uni- 
versity Bank,  125  Cal.  684;  58  Pac.  297. 
The  corporate  existence  of  a  company  is 
admitted  bj'  a  failure  to  deny  the  allega- 
tion of  such  fact:   a  finding  against   such 


§462 


GENERAL    RULES   OF   PLEADING. 


40^ 


admission  cannot  be  sustained.  Moynihan 
V.  Drobaz,  124  Cal.  212;  71  Am.  St.  Rep. 
46;  56  Pac.  1026.  Where  title  to  property 
is  distinctly  averred  in  the  complaint  and 
not  denied  in  the  answer,  the  fact  is 
deemed  admitted;  no  evidence  is  necessary 
upon  such  point.  Pov^ell  v.  Oullahan,  14 
Cal.  114.  "Where  the  answer  fails  to  deny 
the  allegation  that  the  plaintiff  succeeded 
to  the  rights  of  another  person  in  land, 
and  that  he  is  the  owner  thereof,  the  plain- 
tiff's ownership  is  admitted.  White  v. 
Costigan,  138  Cal.  564;  72  _Pac._  178. 
Ownership  alleged,  and  not  denied,  is  ad- 
mitted. Santa  Barbara  v.  Eldred,  108  Cal. 
294;  41  Pac.  410;  McGowan  v.  McDonald, 
111  Cal.  57;  52  Am.  St.  Rep.  149;  43  Pac. 
418.  The  allegation  of  extra  work,  in  an 
action  to  foreclose  a  mechanic's  lien,  is 
admitted  by  a  failure  to  deny:  this  admis- 
sion supports  the  lien.  McGinty  v.  Morgan, 
122  Cal.  103;  54  Pac.  392.  The  validity 
of  proceedings  under  a  void  statute  is  not 
admitted  by  a  failure  to  deny  that  such 
proceedings  were  duly  and  regularly  taken. 
People  V.  Hastings,  29  Cal.  449.  Where  a 
fact  is  expressly  alleged  in  the  complaint, 
and  not  specifically  denied  in  the  answer, 
the  jury  should  be  instructed  that  such 
fact  is  admitted.  Tevis  v.  Hicks,  41  Cal. 
123.  Where,  from  the  whole  conduct  of  a 
cause,  it  appears  that  a  particular  fact 
is  admitted  by  the  parties,  the  jury  have 
the  right  to  draw  the  same  conclusion  as 
to  that  fact  as  if  it  were  proven  in  evi- 
dence, and  to  draw  such  conclusion  as  to 
all  the  issues  on  the  record.  Powell  v. 
Oullahan,  14  Cal.  114.  Where,  in  action 
for  property  destroyed,  the  complaint  al- 
leges the  value  of  all  such  property,  in 
gross,  for  some  items  of  which  no  recovery 
can  be  had,  the  answer,  which  contained 
no  denial  of  the  averment  of  value,  will 
not  be  held  as  admitting  the  A^alue  of  the 
property  for  which  a  recovery  may  be  had. 
Nunan  v.  San  Francisco,  38  '^Cal.  689.  An 
objection  to  an  assessment,  on  the  ground 
of  the  invalidity  of  the  statute,  is  not 
obviated  by  a  failure  to  deny  an  allega- 
tion that  the  assessment  was  duly  and 
regularly  made.  People  v.  Hastings,  29 
Cal.  449. 

Affirmative  matter  in  answer  deemed 
controverted.  Affirmative  matter  in  the 
answer  is  deemed  controverted  (People  v. 
De  la  Guerra,  24  Cal.  73;  Brvan  v.  Maume, 
28  Cal.  238;  Doyle  v.  Franklin,  40  Cal.  106; 
Brooks  V.  Haslam,  65  Cal.  421;  4  Pac.  399; 
Williams  v.  Dennison,  94  Cal.  540;  29  Pac. 
946;  Haines  v.  Snedigar,  110  Cal.  18;  42 
Pac.  462;  Reed  v.  Johnson,  127  Cal.  538; 
59  Pac.  986;  Green  v.  Duvergey,  146  Cal. 
379;  80  Pac.  234;  Sarnighausen  v.  Scannell, 
11  Cal.  App.  652;  106  Pac.  117),  as  is  also 
new  matter  (Lillis  v.  People's  Ditch  Co., 
3  Cal.  Unrep.  494;  29  Pac.  780;  Newsom 
V.  Woollacott,  ."  Cal.  App.  722;  91  Pac. 
347;  Burke  v.  Superior  Court,  7  Cal.  App. 


178;  93  Pac.  1058),  where  it  does  not  call 
for  affirmative  relief  in  behalf  of  the  de- 
fendant. Melander  v.  Western  National 
Bank,  21  Cal.  App.  462;  132  Pac.  265.  The 
admission  of  the  execution  and  genuine- 
ness of  an  instrument  set  up  in  the  answer 
is  not  an  admission  of  new  matter  p!ea<led 
therein,  or  that  the  instrument  relates  to 
the  transaction  set  out  in  the  complaint. 
Newsom  v.  Woollacott,  5  Cal.  App.  722; 
91  Pac.  374.  Affirmative  matter  set  up  in 
the  answer,  such  as  undue  influence  and 
unfair  advantage,  is  deemed  denied.  Ran- 
kin V.  Sisters  of  Mercy,  82  Cal.  88;  22  Pac. 
1134.  A  contract  so  pleaded  may  be  showa 
by  the  plaintiff  to  have  been  procured  by 
fraud,  menace,  or  duress,  without  any 
pleading  on  his  part.  Sarnighausen  v. 
Scannell.  11  Cal.  App.  652;  106  Pac.  117. 
A  replication  traversing  new  matter  al- 
leged in  the  answer  is  unnecessary,  and 
has  no  place  in  our  system  of  pleading: 
the  plaintiff  will  be  deemed  to  have  pleaded 
any  new  matter  in  avoidance  of  a  counter- 
claim or  affirmative  defense  set  up  in  the- 
answer,  and  may  give  evidence  of  such 
matter  in  avoidance.  Grangers'  Business 
Ass'n  V.  Clark,  84  Cal.  201;  23  Pac.  1081. 
The  burden  of  proof  is  on  the  defendant 
to  establish  affirmative  matter  set  up  in 
the  answer.  Bryan  v.  Maume,  28  Cal.  238; 
Brooks  V.  Haslam,  65  Cal.  421;  4  Pac.  399; 
Reed  v.  Johnson,  127  Cal.  538;  59  Pac.  986; 
Clarke  v.  Fast,  128  Cal.  422;  61  Pac.  72; 
Green  v.  Duvergev,  146  Cal.  379;  80  Pac. 
234;  Merced  Bank  v.  Price,  145  Cal.  436; 
78  Pac.  949;  People  v.  De  la  Guerra,  24 
Cal.  73.  For  instance,  he  must  prove  the 
law  of  a  sister  state,  when  relied  on  as  a. 
defense.  Peck  v.  Noee,  154  Cal.  351;  97 
Pac.  865.  Where  a  husband  conveys  prop- 
erty to  his  wife,  in  reliance  upon  an  oral 
agreement  that  she  would,  upon  his  death, 
transfer  a  certain  portion  of  it  to  desig- 
nated parties,  the  wife,  by  consenting  to- 
such  arrangement,  is  estopped  from  ques- 
tioning his  power  thus  to  effectuate  his  in- 
tention without  her  consent  in  writing; 
and  in  an  action  by  the  beneficiaries  to  en- 
force the  constructive  trust,  allegations  in 
the  answer  of  the  wife,  setting  up  the  com- 
munity character  of  the  property,  au- 
thorize them  to  rely  upon  such  estoppel, 
without  pleading  it  specially.  Lauricella 
V.  Lauricella,  161  Cal.  61;  118  Pac.  430. 
In  an  action  to  quiet  title,  where  the  an- 
swer sets  up  a  deed  from  the  plaintiff  to- 
the  defendant,  and  alleges  a  delivery  of 
the  deed  by  the  plaintiff,  such  allegation 
is  deemed  to  be  controverted.  Drinkwater 
V.  Hollar,  6  Cal.  App.  117;  91  Pac.  664. 

Counterclaim  and  set-off  deemed  contro- 
verted. An  answer,  wherein  is  set  up  a 
counterclaim  or  set-off,  is  not  a  cross-com- 
plaint: no  denial  thereof  by  the  plaintiff^ 
is  required.  Herold  v.  Smith,  34  Cal.  122; 
Jones  V.  Jones,  38  Cal.  584.  The  allega- 
tions of  a  pleading  that  are,  strictly  speak- 


405 


COUNTERCLAIM — BAR    OP   STATUTE — MATERIAL    ALLEGATION. 


§463 


ing,  of  a  character  to  be  treated  as  a 
<iefense  or  counterclaim,  are  to  be  taken  as 
denied,  thou<ih  the  pleading  is  denomi- 
nated an  answer,  counterclaim,  or  cross- 
complaint.  IMistcr  V.  Wade,  f)9  Cal.  133; 
10  Pac.  369.  No  replication  is  recjuired  to 
raise  an  issue  upon  the  matter  of  a  counter- 
■claim;  its  allegations  are  deemed  denied, 
and  the  plaintiff,  besides  introducing  evi- 
dence in  denial  thereof,  may  also  prove 
any  affirmative  matter  as  a  defense  to  the 
counterclaim,  without  pleading  it.  L.  Scat- 
«na  &  Co.  V.  Van  Loben  Sels,  19  Cal.  App. 
423;  126  Pac.  187.  Where  the  answer  sets 
up  a  counterclaim  barred  by  the  statute 
of  limitations,  the  plaintiff  is  considered 
to  have  pleaded  the  statute  by  way  of 
replication  to  the  counterclaim  (Curtiss  v. 
Sprague,  49  Cal.  301);  but  where  it  ap- 
pears on  the  face  of  the  counterclaim  that 
it  is  barred,  it  must  be  demurred  to  on  that 
ground,  and  will  not  be  deemed  contro- 
verted, under  the  provisions  of  this  sec- 
tion, as,  under  §§  443,  444,  ante,  the  plain- 
tiff is  authorized  to  demur  on  the  ground 
that  the  answer  does  not  set  up  facts  suffi- 
cient to  constitute  a  counterclaim.  Bliss  v. 
Sneath,  119  Cal.  526;  51  Pac.  848.  An  ex- 
ception to  the  rule  that  all  new  matter 
constituting  a  defense  or  counterclaim 
must,  at  the  trial,  be  deemed  controverted, 
is  found  in  §  442,  ante:  where  a  cross- 
complaint  has  been  served  by  a  defendant 
claiming  affirmative  relief,  the  party  served 
may  demur  or  answer  thereto  as  to  au 
original  complaint;  but  fraud  or  mistake, 
as  a  defense,  may  be  shown  by  the  plain- 
tiff, to  rebut  the  allegations  in  the  answer, 
w^ithout  any  replication  on  his  part.  Moore 
V.  Copp,  119  Cal.  429;  51  Pac.  630.  The 
plaintiff  may,  in  avoidance  of  defendant's 
set-off,  show  a  countervailing  indebtedness 
•of  defendant  to  plaintiff's  assignor.    Davis 

§  463.  A  material  allegation  defined.  A  material  allegation  in  a  plead- 
ing is  one  essential  to  the  claim  or  defense,  and  which  could  not  be  stricken 
from  the  pleading  without  leaving  it  insufficient. 

leged  in  the  complaint;  it  is  not  only  not 
necessary,  but  highly  improper.   Eacouillat 


V.  Rawhide  Gold  Mining  Co.,  15  Cal.  App. 
108;   113  Pac.  898. 

When  plea  of  bar  of  statute  deemed  con- 
troverted. The  statute  of  limitations, 
pleaded  in  bar,  in  an  answer,  is  deemed 
controverted  (Fox  v.  Tay,  89  Cal.  339;  23 
Am.  St.  Kep.  474;  24  Pad  855;  26  Pac.  897; 
Pierce  V.  Southern  Pacific  ('o.,  120  Cal.  150; 
40  L.  R.  A.  350;  47  Pac.  874;  52  Pac.  302; 
London  etc.  Bank  v.  Parrott,  125  Cal.  472; 
73  Am.  St.  Rep.  64;  58  Pac.  164;  Hibernia 
Sav.  &  L.  Soc.  V.  Boland,  145  Cal.  626;  79 
Pac.  365;  Curtiss  v.  Sprague,  49  Cal.  301); 
and  it  devolves  upon  the  defendant  to  es- 
tablish the  facts  necessary  to  support  it. 
Pierce  V.  Southern  Pacific  Co.,  120  Cal.  156; 
40  L.  R.  A.  350;  47  Pac.  874;  52  Pac.  302. 
The  second  clause  of  this  section  applies, 
where  a  defendant  a<lm.its  that  it  is  a  for- 
eign corporation,  but  pleads  the  bar  of  the 
statute.  Black  v.  Vermont  Marble  Co.,  1 
Cal.  App.  718;  82  Pac.  1060.  The  statute 
of  limitations,  set  up  as  an  affirmative  <le- 
fense  in  the  answer,  may  be  controverted 
by  the  plaintiff,  without  pleading,  by  prov- 
ing any  facts  tending  to  rebut  it  (Hi- 
bernia Sav.  &  L.  Soc.  V.  Boland,  145  Cal. 
626;  79  Pac.  365;  Williams  v.  Dennison,  94 
Cal.  540;  29  Pac.  946;  London  etc.  Bank 
V.  Parrott,  125  Cal.  472;  73  Am.  St.  Rep. 
64;  58  Pac.  164);  hence,  the  correct  ap- 
plication of  payments,  under  §  1479  of  the 
Civil  Code,  may  be  shown  for  that  purpose. 
London  etc.  Bank  v.  Parrott,  125  Cal.  472; 
73  Am.  St.  Rep.  64;  58  Pac.  164. 

CODE  COMMISSIONERS'  NOTE.  Allecations 
of  matters  of  evidence  are  not  admitted,  however, 
though  no  denial  is  made  by  the  answer.  Ra- 
couillat  V.  Rene,  32  Cal.  450.  If  an  ultimate 
fact  is  admitted  in  the  record,  the  court  will  not 
consider  probative  facts  for  the  purpose  of  es- 
tablishinfj,  modifving,  or  overcoming  it.  Mulford 
V.  Estudillo,  32  Cal.  131. 


Immaterial   allegations  need  not  be   answered. 
See  ante,  §  462. 

Legislation  §  463.     Enacted   March   11,   1873; 
re-enactment  of  Practice  Act,  §  66. 

What     are     material     allegations.     The 

test  of  materiality  is.  Can  the  averment  be 
stricken  from  the  pleading  without  leav- 
ing it  insufficient?  Thus,  in  an  action  on 
a  note  executed  by  two  defendants, 
averred  to  be  j^artners,  the  denial  of  the 
existence  of  the  partnership,  without  the 
denial  of  the  execution  of  the  note,  en- 
titles the  plaintiff  to  judgment  on  the 
pleadings,  as  the  allegation  of  the  partner- 
ship is  immaterial.  Whitwell  v.  Thomas, 
9  Cal.  499.  Allegations  to  intercept  and 
cut  off  defenses  are  superfluous  and  imma- 
terial in  the  complaint.  Canfield  v.  Tobias, 
21  Cal.  349;  Sterling  v.  Smith,  97  Cal.  343; 
32   Pac.  320.     Evidence  should  not  be  al- 


V.  Rene,  32  Cal.  450.  In  an  action  for 
goods  sold  and  delivered,  an  allegation  as 
to  the  sale  and  delivery  of  the  goods  is 
a  material  one.  Napa  Valley  Packing  Co. 
V.  San  Francisco  Relief  etc.  Funds,  16  Cal. 
App.  461;  118  Pac.  469.  Where  a  defend- 
ant alleges  that  certain  representations  are 
"false  and  untrue  in  every  material  re- 
spect," he  should  point  out  specifically 
what  is  material.  Woodson  v.  Winchester, 
16  Cal.  App.  472;  117  Pac.  565. 

CODE  COMMISSIONERS'  NOTE.  See  S  426, 
ante;  Green  v.  Palmer,  15  Cal.  413;  76  Am.  Dec. 
492;  Whitwell  v.  Thomas,  9  Cal.  499.  In  an 
action  on  a  contract,  an  averment  in  the  com- 
plaint that  the  contract  was  payable  in  a  .specific 
kind  of  monev  is  a  material  allegation.  Wallace 
V.  Eldredge,  27  Cal.  498, 


§464 


GENERAL  RULES  OF  PLEADING. 


406 


§  464.  Supplemental  complaint  and  answer.  The  plaintiff  and  defend- 
ant, respectively,  may  be  allowed,  on  motion,  to  make  a  supplemental  com- 
plaint or  answer,  alleging  facts  material  to  the  case  occurring  after  the 
former  complaint  or  answer. 


Ameudments    to    pleadings.     Post,  §§  472,   473. 

Legislation  §  464.  Enacted  March  11,  1873; 
based  on  last  sentence  of  Practice  Act,  §  67,  as 
amended  by  Stats.  1865-66,  p.  703,  wnich  read: 
"Where  circumstances  occurring  subsequently  to 
the  commencement  of  the  action  render  it  proper 
the  same  mav  be  presented  by  supplemental 
pleadings  and"  issue  taken  thereon  in  the  same 
manner  as  in  the  case  of  original  pleadings 
The  first  part  of  §  67  formed  the  basis  of  §  472; 
q.  v.,    post. 

When  supplemental  pleading  proper.    The 

right  to  file  a  supplemental  complaint  can 
be  exercised  only  with  reference  to  matter 
consistent    with    and    in    aid    of    the    case 
made  by  the  original  complaint,  and  which 
occurred    between    the    time    of    filing    the 
original  complaint  and  the  trial   or  judg- 
ment in  the  action.    Gleason  v.  Gleason,  54 
Cal.  135;  Jacob  v.  Lorenz,  98  Cal.  332;   33 
Pae.   119;   Gordon   v.   San   Diego,   108   Cal. 
264;  41  Pac.  301.     The  fact  to  be  alleged 
in  the  amended  or  supplemental  pleading- 
must  be  materia],  and  relate  to  the  original 
case.    Brown   v.   Valley  View   Mining  Co., 
127  Cal.  630;  60  Pac.  424;  Baker  v.  Brickell, 
102  Cal.  620;   36  Pac.  950.     Changing  the 
character  of  the  original  bill,  and  praying 
for   different    relief,    does   not    render    the 
supplemental    bill    defective;    every    addi- 
tional or  pertinent  fact  either  enlarges  or 
limits   the   right   to   relief,    or   affects   the 
nature  of  it;  but  where  the  subject-matter 
is  the  same,  the  supplemental  bill  is  proper. 
Baker   v.   Bartol,    6    Cal.   483.     The   plain- 
tiff may  be  allowed  to  file  a  supplemental 
complaint     setting    up     matter     consistent 
with  and  in   aid  of  the  original  cause  of 
action,  and  calling  for  different  and  addi- 
tional relief.   Melvin  v.  E.  B.  &  A.  L.  Stone 
Co.,    7    Cal.    App.    324;    94    Pac.    389.     The 
office  of  the  supplemental  complaint  is  to 
bring  to  the  notice  of  the   court   and   the 
opposite  party  things  which  have  occurred 
after  the  commencement  of  the  action,  and 
which  do  or  may  affect  the  rights  asserted 
and    the     relief    asked    in     the     action    as 
originally  instituted.    California  Farm  etc. 
<''o.    v.    Schiappa-Pietra,    151    Cal.    732;    91 
Pac.   593.     A  new   and  independent   cause 
of  action  cannot  be  substituted  by  way  of 
supplemental   complaint.    Gleason   v.   Glea- 
son, 54  Cal.  135;  .Jacob  v.  Lorenz,  98  Cal. 
332;    33   Pae.   119;    Gordon   v.   San   Diego, 
108  Cal.  264;  41  Pac.  301.     Another  action, 
in    another    county,    to    recover    the    same 
property,  by  the  plaintiff,  against  some  of 
the  defendants,   may  be   set  up   in  a  sup- 
plemental   answer.     Keech    v.   Beatty,    127 
Cal.  177;  59  Pac.  837.    Facts  occurring  sub- 
sequently   to   the   filing   of    the    complaint, 
an<l    which    change    the    liabilities   of    the 
defendants,    cannot    be    incorporated    into 
the  comfilaint  by  an   amendment,  without 
jjresenting  averments  inconsistent  with  the 


date  of  the  commencement  of  the  action. 
Van  Maren  v.  .Johnson,  15  Cal.  308.  Where,, 
during  the  pendency  of  an  action  to  re- 
cover personal  property,  the  defendant  is 
required  to  deliver  the  property  to  another 
person  entitled  to  its  possession,  as  against 
both  the  plaintiff  and  the  defendant,  that 
fact  should  be  set  up  by  supplemental  an- 
swer. Bolander  v.  Gentry,  36  Cal.  105; 
95  Am.  Dec.  162.  Discharge  by  insolvency, 
after  answer,  may  also  be  pleaded  by  way 
of  supplemental  answer  (Rahm  v.  Minis, 
40  Cal.  421);  as  may  also  title  acquired 
after  the  commencement  of  the  action 
(Bagley  v.  Ward,  37  Cal.  121;  99  Am. 
Dee.  256;  McMinn  v.  O'Connor,  27  Cal. 
238;  Thompson  v.  Mclvay,  41  Cal.  221), 
and  the  termination  of  the  plaintiff's  title 
after  answer.  Moss  v.  Shear,  30  Cal.  467; 
Barstow  v.  Newman,  34  Cal.  90;  Hestres 
V.  Brennan,  37  Cal.  385.  A  failure  so 
to  plead  renders  evidence  of  title  subse- 
quently' acquired  inadmissible.  McMinn  v. 
O'Connor,  27  Cal.  238;  Bagley  v.  Ward, 
37  Cal.  121;  99  Am.  Dec.  256.  Damages 
accruing  after  the  institution  of  an  action 
to  enjoin  a  threatened  injury  are  prop- 
erly set  up  in  a  supplemental  complaint, 
being  a  right  arising  out  of  and  con- 
sistent with  such  injunctive  relief.  Jacob 
V.  Lorenz,  98  Cal.  332;  33  Pac.  119.  Dam- 
ages may  be  awarded  in  a  judicial  proceed- 
ing for  further  injuries  resulting  after  the 
commencement  thereof,  without  a  supple- 
mental pleading.  Hicks  v.  Drew,  117  Cal. 
305;  49  Pac.  189.  Where  the  original  com- 
plaint is  founded  on  an  express  contract  to 
pay  a  fixed  sum  for  services  for  a  certain 
period,  a  supjplemental  complaint  setting 
up  the  terms  of  employment  should  not  be 
allowed.  Brown  v.  Valley  View  Mining 
Co.,  127  Cal.  630;  60  Pae.  424.  Where  an 
insurance  policy  was  made  payable  to  the 
mortgagee,  a  supplemental  complaint,  in  an 
action  upon  a  new  agreement,  setting  up 
the  fact  that  such  person  has  ceased  to 
have  any  interest  in  the  policy  is  proper:  it 
does  not  change  the  cause  of  action.  Stock- 
ton etc.  Agricultural  W^orks  v.  American 
Fire  Ins.  Co.,  121  Cal.  182;  53  Pac.  573. 
Insurance-money  paid  by  a  mortgagee 
after  the  commencement  of  foreclosure  pro- 
ceedings, under  provisions  authorizing  him 
to  keep  the  property  insured  on  the  fail- 
ure of  the  mortgagor  to  do  so,  should  be  set 
up  in  a  supplemental  complaint.  Washburn 
V.  Wilkinson,  59  Cal.  538.  In  an  action 
for  claim  and  delivery,  against  a  sheriff, 
where,  at  the  time  the  property  was  taken 
by  him  under  a  writ  of  attachment,  the 
judgment  was  not  barred,  it  is  not  error 
to  refuse  to  permit  a  supplemental  com- 
plaint   to    be    filed,    setting    up    that    the 


407 


SUPPLEMENTAL  PLEADINGS — FILING SERVICE. 


§465 


judgment  obtained  in  such  action  was 
barred  at  the  time  of  filing  the  amended 
complaint,  many  years  after  the  taking, 
and  after  the  sheriff  had  gone  out  of  ofKice. 
Paulson  V.  Nuiiau,  72  Tal.  2-i:5;  i:'.  Pac.  (i2f;. 
Effect  of  filing  supplemental  complaint. 
By  the  filing  of  a  suijplcmental  complaint 
and  the  issuance  of  a  summons  thereon, 
the  original  action  becomes  merged  in  the 
action  as  supplemented  by  the  addition  of 
parties  and  subject-matter.  McMinn  v. 
Whelan,  27  Cal.  300.  The  filing  of  a  sup- 
plemental com])laint  after  the  death  of  the 
defendant,  continuing  the  action  against 
his  representatives,  is  not  the  commence- 
ment of  a  new  action  so  as  to  affect  the 
bar  of  the  statute  of  limitations.  Hibernia 
Sav.  &  L.  Soc.  V.  Wackenreuder,  99  Cal. 
503;  34  Pac.  2.19.  The  action,  as  to  the 
new  ground  set  up  in  the  supplemental 
complaint,  must  be  considered  as  com- 
menced when  the  supplemental  complaint 
is  filed.  Valensin  v.  Valensin,  73  Cal.  106; 
14  Pac.  397.  Where  an  action  is  prema- 
turely brought,  the  original  complaint  must 
fail,  and  a  supplemental  complaint  has  no 
place  as  a  pleading.  Morse  v.  Steele,  132 
Cal.  456;  64  Pac.  690.  Where  no  cause  of 
action  existed  at  the  time  of  the  com- 
mencement of  the  suit,  the  action  cannot 
be  maintained  by  filing  a  supplemental 
complaint  founded  on  matters  that  subse- 
quently occurred.  Wittenbrock  v.  Bellmer, 
57  Cal.  12;  Gordon  v.  San  Diego,  108  Cal. 
264;  41  Pac.  301;  Hill  v.  Den,  121  Cal.  42; 


53  Pac.  642;  Lewis  v.  Fo-x:,  122  Cal.  244;  54 
Pac.  823. 

New  or  substituted  parties.  The  rei>re- 
sentative  cajiacity  of  a  substituted  i)lain- 
tiff  may  be  set  up  by  way  of  amended 
complaint,  and  need  not  be  pleaded  by  sup- 
jilemcntal  complaint,  when  made  on  the 
l»art  of  the  plaintiff.  Campbell  v.  West,  93 
Cal.  053;  29  Pac.  219,  645.  The  claimants 
of  projierty,  brought  in  as  new  parties  to 
a  foreclosure  suit,  by  supplemental  corn 
plaint  filed  more  than  four  years  after  tho 
cause  of  action  accrue<l  against  them,  may 
plead  the  bar  of  the  statute.  Spaulding  v. 
Howard,  121  Cal.  194;  53  Pac.  503  A 
court  of  equity  will  not  allow  the  real  hold- 
ers of  the  title,  who  were  not  parties  to  a 
decree  of  foreclosure,  to  be  made  such  by 
a  supplemental  com])laint,  where  the  ap- 
plication is  made  more  than  five  years 
after  the  entry  of  the  decree.  Hcyman  v. 
Lowell,  23  Cal.  106.  Where  suit  is  brought 
by  a  female,  who  subsequently  marries,  her 
husband  should  be  made  a  party:  this 
should  be  done  by  a  supplemental  com- 
plaint, and  not  by  an  amendment  to  the 
original.  Van  Maren  v.  Johnson,  15  Cal. 
308. 

Eight  to  set  up  judgment  in  another  court  by 
amendment  or  supplemental  complaint.  See  note 
49  Ij.  R.  a.    (N.  S.)   283. 

CODE  COMMISSIONEES'  NOTE.  If  the  de- 
fendant demurs  to  the  complaint,  the  plaintiff 
must,  on  motion,  be  allowed  leave  to  amend  his 
complaint  before  a  decision  on  the  demurrer  is 
rendered.    Lord  v.  Hopkins,   30  Cal.  76. 


Post, 


§  465.     Pleadings  subsequent  to  complaint  must  be  filed  and  served.     All 

pleadings  subsequent  to  the  complaint,  must  be  filed  with  the  clerk,  and 
copies  thereof  served  upon  the  adverse  party  or  his  attorney. 

complaint  must  be  served  upon  all  adverse 
parties  who  are  to  be  bound  by  the  judg- 
ment, whether  it  materially  affects  them 
or  not,  no  judgment  can  be  sustained 
against  one  upon  whom  such  amended  com- 
plaint was  not  served  (Linott  v.  Rowland, 
119  Cal.  452;  51  Pac.  687);  a  defendant 
who  answers  an  amended  complaint  waives 
service  of  a  copy  thereof,  and  he  cannot 
object  because  his  co-defendants  were  not 
served.  McGary  v.  Pedroreiia,  58  Cal.  91. 
Where  the  amendment  is  a  mere  matter  of 
form,  in  the  nature  of  a  bill  of  particulars, 
neither  republication  of  the  summons  nor 
service  on  the  defendant  is  required.  Wood- 
ward V.  Brown,  119  Cal.  283;  63  Am.  St. 
Eep.  108;  51  Pac.  2,542.  The  issues  are  not 
changed  by  striking  from  the  title  of  the 
action  the  names  of  one  or  more  defend- 
ants, nor  is  any  additional  answer  rendereil 
necessary:  a  complaint  so  amended  is  not 
such  a  one  as  by  the  law  or  the  rules  of 
the  court  is  required  to  be  served  upon  the 
defendants,  or  by  which  they  are  entitled 
to  answer.  Harney  v.  Corcoran,  60  Cal. 
314.  An  amendment  to  the  complaint  must 
be  served  on  all  the  defendants  affected 
thereby,  but,  in  the  absence  of  a  showing 


Service  of  papers.    Post,  §§  1011  et  seq 
Amendment    of     pleadings,    gervice    of. 
§  472  ;    ante,  §  432. 

Extending    time    to    serve    papers.      See  post, 

§   10.'')4. 

Legislation  g  465.    1.  Enacted  March  11,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
301,  adding  the  words  "copies  thereof"  before  the 
word   "served." 

Pleading  must  be  filed.  A  pleading  pre- 
pared for  the  purpose  of  filing  is  not  a 
pleading  in  fact  until  it  is  filed  and  made 
a  part  of  the  record.  Fletcher  v.  Maginnis, 
136   Cal.   3G2;    68   Pac.    1015. 

Service  of  pleadings.  An  amendment  to 
the  complaint,  filed  as  "of  course,"  must 
be  served  upon  the  adverse  parties,  who 
are  to  be  bound  by  the  judgment,  whether 
it  materially  affects  them  or  not.  Elder  v. 
Spinks,  53  Cal.  293.  A  complaint  amended 
after  default  must  be  served  upon  all  the 
defendants:  a  party  cannot  be  deprived 
of  the  right  to  answer  an  amended  plead- 
ing, even  after  entry  of  a  default  against 
him  on  the  original  pleading;  for,  by 
amending  in  matter  of  substance,  the 
plaintiff  opens  the  default  on  the  original 
pleading.  Thompson  v.  .Tohnson,  60  Cal. 
292;  Eeinhart  v.  Lugo,  86  Cal.  395;  21  Am. 
St.  Rep.  52;  24  Pac.  1089.     As  the  amended 


§469 


MISTAKES  IN  PLEADINGS  AND  AMENDMENTS. 


408 


to  the  contrary,  it  will  be  presumed,  on 
appeal,  that  the  amendments  were  properly 
served;  and  an  objection  to  the  complaint 
is  not  available  to  reverse  the  judgment, 
where,  taken  in  counection  with  the  ex- 
hibits annexed  thereto,  it  shows  a  cause 
of  action.  Eiverside  County  v.  Stockman, 
124  Cal.  222;  56  Pac.  1027.  "Where  the  rec- 
ord shows  service  of  an  amended  complaint 
on  a  party  for  whom  an  attorney  appeared, 
it  must  be  presumed  that  service  upon  the 
attorney  also  was  shown  to  the  court, 
although  no  record  of  it  has  been  pre- 
served. Canadian  etc.  Trust  Co.  v.  Clarita 
etc.  Investment  Co.,  140  Cal.  672;  74  Pac. 
301.  Where  the  plaintiff  gives  the  de- 
fendant written  notice,  to  which  is  at- 
tached a  copy  of  a  supplemental  complaint, 
that,  on  a  certain  day,  he  will  ask  leave  of 
the  court  to  file  such  complaint,  and  the 
court  permits  the  filing  thereof,  the  de- 
fendant   should    be    served    with    a    copy 


thereof  after  it  is  filed.  Galliano  v.  Kil- 
foy,  94  Cal.  86;  29  Pac.  416.  Where,  in  an 
action  against  several  defendants,  judg- 
ment is  entered  against  a  defaulting  de- 
fendant, it  is  unnecessary  to  serve  a  copy 
of  an  amended  complaint,  thereafter  filed, 
upon  him:  he  is  no  longer  an  adverse 
party.  Cole  v.  Eoebling  Construction  Co., 
156  Cal.  443;  105  Pac.  255.  Where  the  de- 
fendant is  allowed  time  to  answer,  until 
the  plaintiff  elects  upon  which  count  of 
the  complaint  he  will  go  to  trial,  the  plain- 
tiff should  serve  a  copy  of  the  complaint, 
with  notice  of  his  election.  Willson  v. 
Cleaveland,  30  Cal.  192. 

Acknowledgment  of  service.  A  written 
acknowledgment  of  service  of  a  cross-com- 
plaint, indorsed  thereon,  and  signed  by  the 
plaintiff's  attorney,  is  sufficient  proof  of 
due  service  thereof.  Wood  v.  Johnston,  8 
Cal.  App.  258;  96  Pac.  508. 


CHAPTER  VIII. 

VAEIANCE.     MISTAKES  IN  PLEADINGS  AND  AMENDMENTS. 


§  469.     M^aterial  variance,  how  provided  for. 
§  470.     Immaterial  variance,  how  provided  for. 
§  471.     What  not  to  be  deemed  a  variance. 
§  472.    Amendments  of  course,   and  effect  of  de- 
murrer. 
§  473.     Amendments  by  the  court.     Enlarging  time 


to  plead  and  relieving  from  judgments, 

etc. 
§  474.    Suing  a  party  by  a  fictitious  name,  when 

allowed. 
§  475.     No   error  or  defect  to  be  regarded  unless 

it  affects  substantial  rights. 
§  476.     Time  to  amend  or  answer,  running  of. 


§  469.  Material  variance,  how  provided  for.  No  variance  between  the 
allegation  in  a  pleading  and  the  proof  is  to  be  deemed  material,  unless  it 
has  actually  misled  the  adverse  party  to  his  prejudice  in  maintaining  his 
action  or  defense  upon  the  merits.  "Whenever  it  appears  that  a  party  has 
been  so  misled,  the  court  may  order  the  pleading  to  be  amended,  upon  such 
terms  as  may  be  just. 


Immaterial  variance.     Post,  §  470. 
Variance,  and  failure  of  proofs.    Post,  §  471. 
Immaterial   errors,    generally.     See  post,  §  475. 

Legislation  §  469.  1.  Enacted  March  11,  1873 ; 
based  on  Practice  Act,  §  579,  which  read:  "A 
variance  between  the  proof  on  the  trial  and  the 
allegations  in  a  pleading,  shall  be  disregarded  as 
immaterial,  unless  the  court  be  satisfied  that  the 
adverse  party  has  been  misled  to  his  prejudice 
thereby." 

2.  Amended  by  Code  Amdts.  1873-74,  p. 
302,  (1)  changing  the  word  "has"  from  "have," 
before  "actually,"  (2)  changing  the  word  "ap- 
pears" from  "is  alleged,"  after  "Whenever  it," 
and  (3)  omitting,  after  the  word  "misled,"  the 
clause,  "that  fact  must  be  proved  to  the  satisfac- 
tion of  the  court,  and  thereupon  the  court  may 
order  the  pleading  to  be  amended,  upon  such 
terms  as  may  be  just." 

Doctrine  of  variance.  The  doctrine  of 
variance  has  been  greatly  mitigated  in  its 
application,  as  well  by  the  English  stat- 
utes as  by  the  provisions  of  this  code;  but 
the  former  operate  only  by  providing  for 
amendments,  and  the  latter  mainly  in  the 
same  way,  though  also  modifying  the  rules 
of  evidence;  otherwise  the  doctrine  re- 
mains unaffected,  and  is  recognized  and 
affirmed  by  the  curative  statutes  them- 
selves;   the    rule,    therefore,   is   the   same, 


under  our  system  of  practice,  as  at  com- 
mon law,  except  in  so  far  as  the  conse- 
quences of  a  variance  may,  under  the 
statutes,  be  obviated  at  the  trial.  Higgins 
V.  Graham,  143  Cal.  131;  76  Pac.  898.  This 
section  applies  to  an  action  by  stock-brok- 
ers to  recover  moneys  advanced  upon  the 
purchase  and  sale  of  stocks  (see  Pollitz  v. 
Wickershani,  150  Cal.  238;  88  Pac.  911), 
and  to  an  action  to  rescind  a  voidable  con- 
tract (Maionchi  v.  Nicholini,  1  Cal.  App. 
690;  82  Pac.  1052);  but  it  does  not  apply 
to  a  notice  of  lien.  Lucas  v.  Eea,  10  Cal. 
App.  641;  102  Pac.  822.  The  effect  of  a 
variance  between  a  pleading  and  the  proof 
is  not  governed  by  the  same  rules  as  in 
the  case  of  a  variance  between  notice  of 
claim  of  lien  and  the  proof;  the  notice  of 
claim  of  lien  must  contain  a  correct  state- 
ment of  the  facts  required  by  the  statute, 
and  unless  so  stated,  no  lien  can  be  en- 
forced; while  a  variance  between  the 
pleading  and  the  proof  is  not  material, 
unless  the  adverse  party  has  been  misled 
thereby  to  his  prejudice.  Santa  Monica 
Lumber  etc.  Co.  v.  Hege,  119  Cal.  376;  51 


409 


IMMATERIAL   VARIANCE. 


§469 


Pac.  555.  If  facts  are  correctly  stated  in 
notice  of  lien,  the  full  amount  of  the  con- 
tract price  with  credits,  or  the  true  amount 
after  deducting  credits,  need  not  be  pleaded. 
Star  Mill  etc.  Co.  v.  Porter,  4  Cal.  A  pp. 
470;   88   Pac.  497. 

Application  of  variance  to  notice  of  lien. 
See  note  post,  §  1187. 

Immaterial    variances.     A    variance    be- 
tween   the   pleadintf   and   the   proof   is   not 
material,  unless  the  adverse  party  has  been 
thereby   misled   to   his   prejudice.     Barrett- 
Hicks  Co.   V.   Glas,  14   Cal.  App.   289;    111 
Pac.  760;  Wood  v.  James,  15  Cal.  App.  253; 
114   Pac.   587;    Hoover   v.    Lester,    16   Cal. 
App.    151;    IIG   Pac.   382;    California   Port- 
land Cement  Co.  v.  Wentworth  Hotel  Co., 
16  Cal.  App.  692;  118  Pac.  103,  113;  Chris- 
tenson  Lumber  Co.  v.  Bucklev,  17  Cal.  App. 
37;  118  Pac.  466;  Ostrom  v.  Woodbury,  18 
Cal.    App.    142;    122    Pac.    825;    Culver    v. 
Newhart,  18  Cal.  App.  614;   123  Pac.  975; 
Union  Collection  Co.  v.  Rogers,  18  Cal.  App. 
205;    122   Pac.  970;   Taylor  v.   Morris,   163 
Cal.  717;  127  Pac.  66.     An  immaterial  vari- 
ance may  be  disregarded  (Crocker  v.  Gar- 
land, 7  Cal.  Unrep.  275;  87  Pac.  209;  Pogue 
v.  Ball,  4  Cal.  App.  406;  88  Pac.  376;  S\ar 
Mill  etc.  Co.  V.  Porter,  4  Cal.  App.  470;  88 
Pac.  497;   Foster  v.  Carr,  135   Cal.   83;   67 
Pac.  43),  where  the  defendant  is  not  actu- 
ally misled  to  his  prejudice  in  maintaining 
his  defense  upon  the  merits.    Abner  Doble 
Co.    V.    Kevstone   Consol.   Mining   Co.,    145 
Cal.  490;  78  Pac.  1050;  Carter  v.  Baldwin, 
95  Cal.  475;  30  Pac.  595;  Bode  v.  Lee,  102 
Cal.   583;   36   Pac.   936;   Holt  v.   Holt,   120 
Cal.  67;  52  Pac.  119;  Herman  v.  Heeht,  116 
Cal.   553;   48  Pac.   611;   California  Annual 
Conference  v.   Seitz,   74   Cal.  287;   15   Pac. 
839;  Lvles  v.  Perrin,  134  Cal.  417;  66  Pac. 
472;  Knox  v.  Higby,  76  Cal.  264;   18  Pac. 
381.     A   variance   that   could  not  possibly 
have  misled  the  defendant  to  his  prejudice 
must  be  disregarded  on  appeal.    Nordstrom 
v.  Corona  City  Water  Co.,  155  Cal.  206;  132 
Am.   St.  Rep.  81;    100  Pac.  242;   Bollinger 
V.    Bollinger,    154    Cal.    695;    99    Pac.    196. 
Immaterial  variances   will  be   disregarded 
on  appeal,  as  not  affecting  the  substantial 
rights  of  the  parties.    Miller  v.  Ballerino, 
135   Cal.   566;   67  Pac.   1046;   68  Pac.   600; 
Carter  v.  Rhodes,  135  Cal.  46;  66  Pac.  985; 
21   Morr.   Min.  Rep.   694.     A   variance  be- 
tween the  findings  and  the  allegations,  as 
to  matters  not  affecting  the  judgment  or 
the   rights   of   the   parties,   is   immaterial. 
Bollinger    v.    Bollinger,    154    Cal.    695;    99 
Pac.  196.     Where  the  variance  does  not  go 
to  the  measure  of  the  defendant's  liability, 
but  merely  to  the  identity  of  the  subject- 
matter  upon  which  that  liability  is  founded, 
it  will  be  disregarded  as  immaterial.   Clark 
V.  Chapman,  98  Cal.  110;  32  Pac.  812;   33 
Pac.  750.     The  misspelling  of  a  word  does 
not  constitute  a  material  variance  (People 
V.  Cummings,  57  Cal.  88);  neither  does  the 
use  of  abbreviations;  nor  the  use  of  words 
and  figures,   instead  of  figures  only.    Cor- 


coran  v.   Doll,  32   Cal.   82.     Any   variance 
that   could    not   have   misled    or   surprised 
the  defentiant  to  his  prejudice  in  maintain- 
ing his  defense  upon  the  merits,  is  immate- 
rial ((^uackenbush  v.  Sawyer,  54  Cal.  439); 
and   the  court  must,  in   every  stage  of  an 
action  or  j>roceeding,  disregard  any  defect 
in  a  pleading  or  i)roceeding  that  does  not 
substantially  affect  the  rights  of  the  par- 
ties.   Miller  v.  Ballerino,   133   Cal.  oHH;   67 
Pac.  1046;  68  Pac.  600;  Antonelle  v.  Ken- 
nedy   etc.    Lumber    Co.,    140    Cal.    309;    73 
Pac.    966.     Where    the    entire    contract    is 
set  up  in  the  answer,  with  the  sjiecial  aver- 
ment of  the  breach  of  an  alleged  condition 
precedent,  the  defendant  cannot  be  allowed 
to  say  that  he  was  misled  by  the  plaintiff's 
failure  to  aver  what  the  defendant  knew, 
pleaded,  and  relied  upon.   Antonelle  v.  Ken- 
nedy etc.  Lumber  Co.,  140  Cal.  309;  73  Pac. 
966.     Whei'e  it  cannot  be  determined  until 
after  the  evidence  has  been  received,  whether 
there  is  a  variance  between  the  allegations 
of  the  complaint  and  the  evidence  offered, 
and  the  defendant  does  not  make  it  appear 
that   he   is   in    any    respect   misled    to   his 
prejudice,  no  error  is  committed  in  strik- 
ing out  the  testimony.    Moore  v.  Douglas, 
132  Cal.  399;  64  Pac'  705.     Where  there  is 
a  difference  between  the  allegations  in  the 
complaint  and  the  proofs  as  to  the  amount 
of  money  to  be  paid,  such  difference  is  one 
only  in  quantity  and  extent,  and  does  not 
constitute  a  legal  variance,  and  could  not 
have  misled  the  plaintiff  to  his  prejudice 
in  maintaining  his  defense  upon  the  merits 
to  the  defendant's  cross-complaint,  nor  can 
it   prevent   the   court   from   adjudging  the 
relief    to    which    the    parties    are    entitled. 
Peasley  v.  Hart,  65   Cal.  522;   4  Pac.  537. 
Where  the   complaint  alleges  a  joint  pur- 
chase by  a  partnership  and  one  of  its  mem- 
bers individually,  and  the  evidence  merely 
shows  a  sale  to  the  partnership,  the  vari- 
ance is  not  material    (Redwood  City  Salt 
Co.  v.  Whitney,  153  Cal.  421;  95  Pac.  885); 
nor    is   the   variance    material,    where    the 
difference  between  the  contract  offered  and 
received    in    evidence    and    the    contract 
pleaded  in  the  complaint  was  merely  as  to 
the  price  to  be  paid  for  the  work  (Christen- 
son  Lumber  Co.  v.  Buckley,   17   Cal.  App. 
37;  118  Pac.  466);  nor  where  the  complaint 
alleges   that    goods   damaged   through   the 
negligence    of    the    defendant    were    in    a 
building  of  the  plaintiff,  and  the  proof  is 
that  some  of  them  were  on  the  roof  of  the 
building  (Yik  Hon  v.  Spring  Vallev  Water 
Works,  65  Cal.  619;  4  Pac.  666);  nor  where 
the  complaint,  in  an  action   for   damages, 
alleges  that  the  defendants  owned,  as  ten- 
ants in  common,  the  entire  block  in  front 
of   which   the   accident   occurred,   and   the 
proof  is  that  they  owned  distinct  parcels 
thereof   in   severalty    (Gay   v.   Winter,    34 
Cal.  153) ;  nor  where  the  complaint  alleges 
a   false   arrest   and   imprisonment   upon    a 
charge  of  larceny,  and  the  evidence  is  con- 
flicting as  to  whether  the  arrest  was  upon 


§469 


MISTAKES  IN  PLEADINGS  AND  AMENDMENTS. 


410 


that  ground  or  upon  a  charge  of  disturb- 
ing the  peace.  Sebring  v.  Harris,  20  Cal. 
App.  56;  128  Pac.  7.  Where  the  complaint 
alleges  that  the  defendant  entered  on  a 
date  subsequent  to  that  shown  by  the  evi- 
dence, there  is  a  variance;  but,  as  the  de- 
fendant was  not  misled  to  his  prejudice, 
it  is  immaterial.  Amador  Gold  Mine  v. 
Amador  Gold  Mine,  11 4  Cal.  346;  46  Pac. 
80.  In  an  action  for  libel,  proof  that  the 
libel  included  others  besides  the  plaintiff 
is  not  a  variance.  Robinett  v.  McDonald, 
65  Cal.  611;  4  Pac.  651.  The  variance  be- 
tween the  description  in  an  authorization 
to  sell  land  and  that  in  the  printed  receipt 
on  the  back  thereof,  is  not  fatal,  where 
both  refer  to  an  attached  diagram,  and  all 
parties  had  reference  to  the  same  property. 
Melone  v.  Ruffino,  129  Cal.  514;  79  Am.  St. 
Eep.  127;  62  Pac.  93.  In  an  action  for 
damages  caused  by  fire,  the  place  of  the 
origin  of  the  fire  is  not  material,  and  the 
defendant  could  not  have  been  misled  by 
a  variance  upon  the  point,  to  its  prejudice, 
in  maintaining  its  defense  upon  the  merits. 
Butcher  v.  Vaca  Valley  etc.  Ry.  Co.,  2  Cal. 
Vnrep.  427;  5  Pac.  359.  Where  the  com- 
plaint avers  generally  that  property  was 
loaned  to  the  defendant,  and  that  he  con- 
verted it  to  his  own  use,  and  the  evidence 
shows  that  it  was  loaned  for  a  special  pur- 
pose, but  the  defendant  did  not  use  it  for 
that  purpose,  but  converted  it  to  his  own 
use,  the  variance  is  immaterial,  as  the  ad- 
verse party  was  not  misled  to  his  prejudice. 
Hitchcock  V.  McElrath,  72  Cal.  565;  14 
Pac.  305.  Where  a  total  failure  of  consid- 
eration is  set  up  in  the  answer,  but  the 
proof  shows  a  partial  failure  only,  the  vari- 
ance is  not  an  available  one.  Plate  v.  Vega, 
31  Cal.  383. 

Proofs  under  pleadings.  A  party  mak- 
ing an  allegation  that  a  sale  was  in  writ- 
ing is  not  thereby  precluded  from  proving 
that  the  sale  was  a  verbal  one.  Patter- 
son V.  Keystone  Mining  Co.,  30  Cal.  360. 
Where  the  complaint  alleges  an  express 
promise  to  pay  a  debt,  barred  by  the  stat- 
ute of  limitations,  it  is  competent  to  prove 
an  acknowledgment  from  which  a  promise 
to  pay  is  implied.  Farrell  v.  Palmer,  36 
Cal.  187. 

How  variance  objected  to.  Variance 
may  be  taken  advantage  of,  either  by  ob- 
jecting to  the  admissibility  of  the  evidence 
or  by  motion  for  nonsuit.  Elmore  v.  El- 
more, 114  Cal.  516;  46  Pac.  458.  Where 
the  cause  of  action  shown  by  the  evidence 
is  somewhat,  but  not  radically,  different 
from  that  stated  in  the  complaint,  the  ob- 
jection of  variance  should  be  presented 
either  by  a  specific  objection  to  the  evi- 
dence, or  by  a  motion  for  a  nonsuit  on  that 
particular  ground.  Eversdon  v.  Mayhew, 
85  Cal.  1;  21  Pac.  431;  24  Pac.  382.  A 
material  variance  between  the  contract  as 
alleged  and  as  proved  is  a  ground  of  non- 
suit, unless  the  plaintiff  obtains  leave  to 
amend  his  complaint  so  as  to  make  it  con- 


form to  the  proofs.  Tomlinson  v.  Monroe, 
41  Cal.  94.  A  serious  variance,  claimed  to 
exist  between  the  evidence  of  the  plaintiff 
and  that  of  his  principal  witness,  cannot 
be  considered  on  a  motion  for  nonsuit 
Wassermann  v.  Sloss,  117  Cal.  425;  59  Am. 
St.  Rep.  209;  38  L.  R.  A.  176;  49  Pac.  566. 
The  question  of  variance  cannot  be  raised 
for  the  first  time  on  appeal  (Bell  v. 
Knowles,  45  Cal.  193;  Knox  v.  Higby,  76 
Cal.  264;  18  Pac.  381;  Bode  v.  Lee,  102 
Cal.  583;  36  Pac.  936;  Baxter  v.  Hart,  104 
Cal.  344;  37  Pac.  941;  Swamp  Land  Dist.  v. 
Glide,  112  Cal.  85;  44  Pac.  451;  Barrell  v. 
Lake  View  Land  Co.,  122  Cal.  129;  54  Pac. 
594;  Yik  Hon  v.  Spring  Valley  Water 
Works,  65  Cal.  619;  4  Pac.  666),  because 
the  plaintiff  is  thereby  deprived  of  an 
opportunity  to  amend  his  complaint  to  obvi- 
ate the  objection  of  variance.  Davey  v. 
Southern  Pacific  Co.,  116  Cal.  325;  48  Pac. 
117.  Where  a  party  desires  to  raise  the 
question  as  to  any  variance  shown  between 
allegations  in  a  pleading  and  the  proof 
offered  at  the  trial,  such  objection  must  be 
presented  to  the  trial  court;  otherwise  it 
is  waived.  California  Portland  Cement  Co. 
V.  Wentworth  Hotel  Co.,  16  Cal.  App.  692; 
118  Pac.  103,  113;  Rutz  v.  Obear,  15  Cal. 
App.  435;  115  Pac.  67. 

Amendment  to  cure  variance.  Objec- 
tions on  the  ground  of  variance  between 
the  allegations  of  the  complaint  and  the 
proof  offered  should  be  made  at  the  trial, 
so  that,  if  well  taken,  the  complaint  may 
be  amended.  Knox  v.  Higby,  76  Cal.  264; 
18  Pac.  381.  Under  this  section,  amend- 
ments of  pleadings  may  be  allowed,  upon 
terms.  Hedstrom  v.  Union  Trust  Co.,  7 
Cal.  App.  278;  94  Pac.  386.  Where  the 
case  as  proved  and  as  found  is  not  the  case 
made  by  the  complaint,  the  judgment  will 
be  reversed  on  appeal,  in  order  that  the 
complaint  may  be  properly  amended.  Brvan 
V.  Tormey,  84  Cal.  126;  24  Pac.  319. 
Where  the  complaint  is  for  goods  sold  to 
two  defendants  jointly,  a  judgment  ren- 
dered against  one  will  be  reversed,  so  that 
the  complaint  may  be  amended;  but  the 
issue  cannot  be  changed  in  the  supreme 
court.  Dobbs  v.  Purington,  136  Cal.  70;  68 
Pac.  323.  Where  the  complaint  states  a 
cause  of  action  upon  an  unconditional  con- 
tract, but  the  plaintiff  introduces  the  con- 
tract in  evidence,  which  limits  the  liability 
of  the  defendant  to  certain  losses,  the  court 
may  permit  the  complaint  to  be  amended. 
Clark  V.  Phcenix  Ins.  Co.,  36  Cal.  168. 
Under  the  Practice  Act  of  1850,  where  the 
defect  did  not  appear  on  the  face  of  the 
complaint,  the  defendant  could  bring  it 
forward  by  his  answer,  and  then,  in  cer- 
tain cases,  as  a  matter  of  course,  and  in 
others,  on  application  to  the  court,  and  on 
such  terms  as  were  proper,  the  plaintiff 
could  amend  by  adding  or  striking  out  the 
name  of  any  party,  or  by  correcting  a  mis- 
take in  the  name  of  a  party,  or  a  mistake 
in  any  other  respect,  and,  upon  the  amended 


411 


IMMATERIAL   VARIANCE — FINDINGS — AMENDMENTS. 


§470 


missiniiprs.  It  accords  with  the  construction 
placed  l)y  the  courts  upon  the  section  as  it 
originally  stood.  Catlin  v.  Gunter,  10  How.  Pr. 
321;  Cothcal  v.  TalmadKe,  1  K.  1).  Smith,  575; 
and  SCO  also  Befjan  v.  O'Rielly,  32  Cal.  11;  Plate 
V.   Vega,    31    Cal.   383. 


•comjilaint  and  the  answer  thereto,  the  par- 
ties were  ready  to  proceed  to  trial  ui)ori 
the  substantial  merits.  Kowe  v.  Chan<ller, 
1  Cal.  1G7. 

CODE    COMMISSIONERS'   NOTE.      The    latter 
part   of   this   section   has   been   added   by   the   com- 

§  470.  Immaterial  variance,  how  provided  for.  Where  the  variance  is 
not  material,  as  provided  in  the  last  section,  the  court  may  direct  the  fact 
to  be  found  according  to  the  evidence,  or  may  order  an  immediate  amend- 
ment, without  costs. 

Variance,  material.    Ante,  §  469. 

Legislation  8  470.      Enacted  March  11,  1873. 

Finding  according  to  evidence.  If  evi- 
dence, not  eonstitutiiijT  a  material  vari- 
ance, is  received  at  the  trial,  and  the 
plaintiff  does  not  claim  that  he  was  misled 
by  its  introduction,  or  in  any  way  pre- 
vented from  maintaininjj  his  cause  of  ac- 
tion upon  its  merits,  and  does  not,  either 
by  motion  to  reopen  the  cause,  or  after- 
wards, upon  his  motion  for  a  new  trial, 
make  it  appear  to  the  court  that  he  was 
prejudiced  thereby,  or  in  any  way  prevented 
from  introducing  evidence,  or  that  he  was 
able  to  present  any  evidence  that  would 
tend  to  overcome  the  testimony,  the  evi- 
dence, and  the  findings  thereon,  are  to  be 
regarded  as  if  defen'dant  had  amended  his 
answer  so  as  to  present  these  issues,  prior 
to  entering  upon  the  trial,  or  even  prior 
to  the  introduction  of  any  testimony:  the 
court  may  properly  consider,  in  making  up 
its  decision,  any  evidence,  by  depositions 
or  otherwise,  relevant  to  the  issues  made 
bv  an  amended  answer.  Firebaugh  v.  Bur- 
bank,  121  Cal.  186;  53  Pac.  560.  Where 
there  is  an  immaterial  variance,  of  such 
character  as  not  to  mislead  the  defendant, 
the  court  should  admit  the  evidence  and 
find  the  facts  accordingly,  or  direct  an 
amendment.  Cobb  v.  Doggett,  142  Cal.  142; 
75  Pac.  785.  Although  there  is  a  variance 
between  the  allegations  of  the  complaint 
and  the  proof,  yet  the  court  should  find 
according  to  the  evidence,  and,  if  no  other 
defense  is  established,  should  enter  judg- 
ment thereon  for  t"he  plaintiff,  where  he  is 
entitled  thereto.  Herman  v.  Heeht,  116 
Cal.  553;  48  Pac.  611.  Where  the  variance 
between  the  allegations  and  the  proof  is 
such  that  the  defendant  was  not  misled  in 
mistaking  his  defense,  the  court  should 
find  the  fact  according  to  the  evidence, 
without  any  amendment  of  the  complaint. 
Duke  V.  Huntington,  130  Cal.  272;  62  Pac. 
510.  Where  a  party  has  not  been  misled 
to  his  prejudice,  in  view  of  the  pleadings 
and  the  evidenr-e.  the  facts  should  be  found 
according  to  the  evidence.  Lackmann  v. 
Kearney,  142  Cal.  112;  75  Pac.  668.  Where 
the  variance  is  immaterial,  the  court  may 
properly  find  according  to  the  evidence. 
Vestal  V.  Young,  147  Cal.  715;  82  Pac.  381; 
Maionchi  v.  Nicholini,  1  Cal.  App.  690;  82 
Pac.  1052.  In  an  action  brought  to  en- 
force   a    special    promise    alleged    to    have 


been  made  on  a  certain  day,  the  plaintiff 
may  recover  upon  i)roof  that  the  promise 
was  made  at  any  time  before  the  com- 
mencement of  the  action,  and  need  not 
prove  that  it  was  made  on  or  about  the 
time  alleged  in  the  complaint.  Biven  v. 
Bostwick,  70  Cal.  639;  11  Pac.  790. 

Amendment  to  conform  to  proofs.  A 
variance  between  the  complaint  an<l  the 
evidence  may  be  obviated  by  an  amend- 
ment of  the  complaint  so  as  to  conform  to 
the  proof  (Barrell  v.  Lake  View  Land  Co., 
122  Cal.  129;  54  Pac.  594),  where  the  vari- 
ance is  not  material  (Hedstrom  v.  Union 
Trust  Co.,  7  Cal.  App.  278;  94  Pac.  386; 
Ramboz  v.  Stansbury,  13  Cal.  App.  649; 
110  Pac.  472);  but  the  amendment  cannot 
go  beyond  the  proof  (McDougald  v.  Argo- 
naut Land  etc.  Co.,  117  Cal.  87;  48  Pac. 
1021) ;  and  the  court  may  permit  the 
amendment  either  on  its  own  motion  or  on 
the  motion  of  the  ])laintiff  (Valencia  v. 
Couch,  32  Cal.  339;  91  Am.  Dec.  589),  even 
during  the  trial  (Carpentier  v.  Small.  33 
Cal.  346;  Clark  v.  Phcenix  Ins.  Co.,  36  Cal. 
168;  Farmers'  Nat.  Gold  Bank  v.  Stover,  60 
Cal.  387);  it  has  a  discretion  to  allow  the 
plaintiff  so  to  amend  his  complaint  (Yonli 
v.  Yordi,  6  Cal.  App.  20;  91  Pac.  348; 
Doherty  v.  California  Navigation  etc.  Co.. 
6  Cal.  App.  131;  91  Pac.  419),  and  it  is 
justified  in  allowing  the  amendment  (Mills 
V.  .Jackson,  19  Cal.  App.  695;  127  Pac. 
655),  even  without  notice  to  the  defendant. 
Eamboz  v.  Stansbury,  13  Cal.  App.  649; 
110  Pac.  472.  Upon  discovering  a  vari- 
ance, the  court  should  order  the  pleading 
amended,  before  making  its  findings  or 
judgment.  Hedstrom  v.  Union  Trust  Co.,  7 
Cal.  App.  278;  94  Pac.  386.  The  defend- 
ant may  present,  in  his  answer,  any  matter 
constituting  a  defense,  and  the  court  may 
permit  him  to  amend  his  answer,  in  order 
to  plead  such  matter,  even  after  the  trial 
has  commenced.  Firebaugh  v.  Burbank,  121 
Cal.  186;  53  Pac.  560.  An  allegation  ren- 
dered necessary  by  technical  statutory 
rules  mav  be  supplied  by  amendment.  Frost 
V.  Witter,  132  Cal.  421;  84  Am.  St.  Rep. 
53;  64  Pac.  705.  While  the  variance  may 
not  be  material,  yet,  if  objection  is  made 
on  that  ground,  good  practice  requires  an 
explanation  of  the  variance,  and  any  errors 
found  in  an  instrument  set  out  in  the  com- 
plaint should  be  corrected  bv  amendment. 
Ball  V.  Putnam,  123  Cal.  134";  55  Pac.  773. 


§§471,472 


MISTAKES  IN  PLEADINGS  AND  AMENDMENTS. 


412: 


"Where  the  evidence  conclusively  shows  the 
party  to  be  entitled  to  relief,  an  amend- 
ment should  be  allowed  or  directed,  in  or- 
der to  conform  the  pleadings  to  the  facts 
which  ought  to  be  in  issue.  Connalley  v. 
Peck.  3  Cal.  75;  Ward  v.  Waterman,  85 
Cal.  4S8;  24  Pac.  930.  In  cases  coming 
under    this    section,    amendments    to    the 


§ 


pleading  should  not  only  be  allowed,  but 
required,  not  for  the  purpose  of  framing 
issues  for  the  trial,  but  to  supply  technical 
defects.  Hedstrom  v.  Union  Trust  Co.,  7 
Cal.  App.  278;  94  Pac.  386.  The  pleadings- 
may,  under  this  section,  be  amended  with- 
out terms.  Hedstrom  v.  Union  Trust  Co.,. 
7  Cal.  Aj.p.  278;  94  Pac.  386. 


471.  What  not  to  be  deemed  a  variance.  Where,  however,  the  allega- 
tion of  the  claim  or  defense  to  which  the  proof  is  directed,  is  unproved,  not 
in  some  particular  or  particulars  only,  hut  in  its  general  scope  and  mean- 
ing, it  is  not  to  be  deemed  a  case  of  variance,  within  the  last  two  sections^ 
but  a  failure  of  proof. 


Proof. 

1.  Generally.     Post,  §§  1824,  1869. 

2.  Failure    of,    dismissal   for.      Post,    §    581, 
Bubd.  5. 

Legislation  §  471.      Enacted  March  11,  1872. 

Amendment  on  total   failure   of   proof. 

This  section  virtually  forbids  amendments, 
except  where  the  allegation  of  the  claim  or 
defense  would  be  changed  in  its  general 
scope  and  meaning.  Atlantic  etc.  Ky.  Co. 
V.  Laird,  164  U.  S.  393;  41  L.  Ed.  485;  17 
Sup.  Ct.  Eep.  120.  Variance  between  the 
allegations  of  the  complaint  and  the  proof, 
eveu  if  such  as  actually  to  mislead  the  de- 
fendant, does  not  necessarily  constitute  a 
failure  of  proof.  Pollitz  v.  Wickersham, 
150  Cal.  238;  88  Pac.  911.  Where  the  alle- 
gations to  which  the  proof  is  directe<l  are 


not  proved,  not  in  some  particular  or- 
particulars  only,  but  in  their  general  scope- 
and  meaning,  it  is  error  to  allow  the  plain- 
tiff to  file  a  second  amended  complaint, 
which  changes  the  proceeding  from  an  ac- 
tion ex  delicto  to  an  action  ex  contractu. 
Hackett  v.  Bank  of  California,  57  Cal.  335. 
In  an  action  for  slander,  the  allegata  and 
probata  must  substantially  correspond:  the- 
plaintiff  is  not  entitled  to  recover  upon 
proof  of  words  not  set  forth,  or  upon  a 
failure  to  prove  the  slanderous  words 
alleged.  Haub  v.  Friermuth,  1  Cal.  App. 
556;  82  Pac.  571. 

CODE  COMMISSIONERS'  NOTE.  The  allega- 
tions and  proof  must  agree.  For  actions  ex  con- 
tractu and  general  matters,  see  Hathaway  ▼.. 
Ryan,  35  Cal.   188. 


§  472.  Amendments  of  course,  and  effect  of  demurrer.  Any  pleading 
may  be  amended  once  by  the  party  of  course,  and  without  costs,  at  any 
time  before  answer  or  demurrer  filed,  or  after  demurrer  and  before  the 
trial  of  the  issue  of  law  thereon,  by  filing  the  same  as  amended  and  serving 
a  copy  on  the  adverse  party,  who  may  have  ten  days  thereafter  in  Mdiich 
to  answer  or  demur  to  the  amended  pleading.  A  demurrer  is  not  waived  by 
filing  an  answ- er  at  the  same  time ;  and  when  the  demurrer  to  a  complaint 
is  overruled  and  there  is  no  answer  filed,  the  court  may,  upon  such  terms  as 
may  be  just,  allow  an  answer  to  be  filed.  If  a  demurrer  to  the  answer  be 
overruled,  the  facts  alleged  in  the  answer  must  be  considered  as  denied,  to 
the  extent  mentioned  in  section  four  hundred  and  sixty-two. 


Complaint,   amended,  filing.     Ante,    §  432. 
Answer    no   waiver    of   demurrer.     Ante,  §  431. 

Legislation  §  472.  1.  Enacted  March  11,  1872; 
hased  on  Practice  Act,  §  67,  as  amended  by  Stats. 
1865-66,  p.  703,  which  read:  "After  demurrer, 
and  before  the  trial  of  the  issue  of  law  thereon, 
the  pleadings  demurred  to  may  be  amended  as  of 
course  and  without  costs  by  filing  the  same  as 
amended  and  serving  a  copy  thereof  on  the  ad- 
verse party  or  his  attorney  within  ten  days,  who 
shall  have  ten  days  thereafter  in  which  to  demur 
or  answer  thereto ;  but  a  party  shall  not  so  amend 
more  than  once.  A  demurrer  shall  not  be  deemed 
waived  by  the  filing  of  an  answer  at  the  same 
time  of  filing  the  demurrer;  and  when  the  de- 
murrer to  a  complaint  is  overruled,  and  there  is 
no  answer  filed,  the  court  may  upon  terras  allow 
an  answer  to  be  filed.  If  a  demurrer  to  the 
answer  be  overruled,  the  facts  alleged  in  the  an- 
swer shall  be  considered  as  denied  to  the  extent 
mentioned  in  section  sixty-five.  Where  circum- 
stances occurring  subsequently  to  the  commence- 
ment of  the  action  render  it  proper,  the  same 
may  be  presented  by  supplemental  pleadings  and 


issue  taken  thereon  in  the  same  manner  as  in 
the  case  of  original  pleadings."  The  last  sen- 
tence formed  the  basis  of  §  464,  ante.  The  en- 
actment of  1872  had  (1)  the  word  "must"  instead 
of  the  words  "may,  upon  such  terms  as  may  be 
just,"  and  (2)  the  word  "is"  instead  of  "be," 
before  "overruled." 

3.   Amended  by  Code  Amdts.  1873-74,  p.  302. 

3.  Amendment  by  Stats.  1901,  p.  135;  un- 
constitutional.   See  note  ante,  §  5. 

Amendment  as  of  course.  The  plaintiff 
is  entitled  to  file  the  first  amendment  of 
his  complaint  as  of  course,  where  there  has 
been  no  trial  on  the  issue  of  law.  Young  v. 
Fink,  119  Cal.  107;  50  Pac.  1060;  Allen  v. 
Marshall,  34  Cal.  165.  Any  pleading  which 
may  be  amended  once  as  of  course,  and 
without  costs,  may  be  so  amended  wittout 
application  to  the  court,  or  permission 
therefrom:  it  is  a  right  conferred  upon  the- 


413 


AMENDMENT  OF  COURSE — DEMURRER,  EFFECT  OF  RULING  ON. 


§472 


parties,  equally  with  that  of  i)li'ailin,?  origi- 
nally, a  right  the  court  cannot  take  from 
a  party  to  an  action,  and  it  must  bo  exer- 
cist'd  within  the  time  and  in  the  manner 
spocifioil  in  the  code;  it  is  quite  distinct 
from  the  numerous  cases  in  which  amend- 
ments to  pleadings  cau  only  be  made  by 
leave  of  the  court.  Spoouer  v.  Cady,  4  Cal. 
Unrep.  539;  36  Pac.  104.  An  amended  an- 
swer cannot  be  filed  as  of  course  after 
a  demurrer  to  the  original  answer  has  been 
disj>osed  of,  nor  after  the  time  within 
which  the  plaintiff  might  have  demurred, 
but  did  not,  has  expired.  Tinglev  v.  Times 
Mirror  Co.,  151  ("al.  1;  89  Pac.  1097;  Maiiha 
V.  Union  Fertilizer  Co.,  151  Cal.  5S1  ;  91 
Pac.  393.  This  section  is  to  be  liberally 
construed,  so  as  to  confer  an  equal  right 
to  amend  upon  both  parties  as  to  all  plead- 
ings, but  not  so  as  to  confer  greater  rights 
upon  one,  in  that  respect,  than  are  accorded 
to  the  other,  or  to  work  a  hardship  upon 
either  party,  or  to  interfere  with  the  j)ro- 
gress  of  a  trial  after  the  issues  of  fact  have 
been  made.  Tingley  v.  Times  Mirror  Co., 
151  Cal.  1;  S9  Pac.  1097.  A  defendant  has 
not  an  absolute  right,  under  this  section, 
to  file  an  amended  answer-  at  any  time  be- 
fore trial  (Manha  v.  Union  Fertilizer  Co., 
151  Cal.  581;  91  Pac.  393);  and  it  is  not 
an  abuse  of  discretion  to  refuse  to  allow 
further  amendments,  after  a  demurrer  has 
been  sustained  to  a  third  amended  com- 
plaint. Billesbach  v.  Larkej',  161  Cal.  649; 
120  Pac.  31.  The  right  to  amend,  after 
the  filing  of  a  demurrer,  is  absolute,  only 
when  it  is  exercised  before  the  demurrer 
is  argued  and  submitted.  Stewart  v.  Doug- 
lass, 148  Cal.  511;  83  Pac.  699;  Manha  v. 
Union  Fertilizer  Co.,  151  Cal.  581;  91  Pac. 
393.  Upon  the  reversal  of  a  judgment  for 
the  plaintiff,  his  right  to  amend  the  com- 
plaint is  generally  a  matter  of  absolute 
right,  and,  when  it  is  refused,  the  court 
must  be  able  to  say  that  the  complaint 
cannot  be  amended  so  as  to  state  a  good 
cause  of  action.  Norton  v.  Bassett,  158  Cal. 
425;  111  Pac.  253.  In  general,  the  ques- 
tion whether  or  not  the  court  has  abused 
its  discretion  in  granting  or  refusing  per- 
mission to  amend,  depends  upon  the  ques- 
tion whether  the  amendment  is  such  a 
permissible  one  as  will  perfect  a  cause  of 
action  imperfectlv  pleaded.  Norton  v.  Bas- 
sett, 158  Cal.  425;  111  Pac.  253.  An 
amended  demurrer  relates  to  the  time  of 
the  filing  of  the  original  demurrer,  and 
may  be  made  as  of  course.  Pittman  v.  Car- 
stenbrook,  11  Cal.  App.  224;  104  Pac.  699. 
Answer  after  demurrer  overruled.  When 
a  demurrer  to  the  complaint  is  overruled, 
and  there  is  no  answer  on  file,  it  is  within 
the  discretion  of  the  court  to  grant  leave 
to  answer,  or  to  enter  final  judgment,  espe- 
cially where  the  demurrer  was  manifestly 
frivolous,  and  confessedly  put  in  to  obtain 
time.  Barron  v.  Deleval,  58  Cal.  95.  The 
party  whose  demurrer  is  overruled  ought 
to  be  required  to  obtain  leave  to  answer, 


to  satisfy  the  court  that  he  has  a  substan- 
tial defense  on  the  merits  to  the  action; 
the  allowance  of  leave  to  answer  rests  in 
the  discretion  of  the  court  below,  subject 
to  review  in  case  of  it's  arbitrary  or  unrea- 
sonable exercise.  Thornton  v.  Borland,  12 
Cal.  438;  Gillan  v.  Hutchinson,  16  Cal.  153. 
When  a  demurrer  to  the  complaint  is  over- 
ruled, it  is  not  necessary  that  the  order 
fix  the  time  within  which  the  answer  must 
be  filed,  although  the  court  has  power  to 
fix  such  time  as  it  may  deem  proper;  but 
if  not  fixed,  the  defendant  should  ansv.-er 
within  the  same  time  as  in  case  of  service 
of  a  coi)y  of  the  original  complaint  with 
summons.  Peojile  v.  Rains,  23  Cal.  127. 
Where  the  defense  is  invalid,  it  is  not 
error  to  refuse  to  permit  the  defendant  to 
amend  his  answer  after  judgment  sustain- 
ing a  demurrer  thereto.  Gillan  v.  Hutchin- 
son, 16  Cal.  153.  A  refusal  to  allow  an 
amon<lment  cannot  be  reviewed  on  an  ap- 
peal from  an  order  denying  a  new  trial, 
where  the  notice  of  intention  to  move  for 
a  new  trial -fails  to  set  forth  in  what  par- 
ticular the  court  abused  its  discretion. 
Cook  V.  Suburban  Realty  Co.,  20  Cal.  App. 
538;   129  Pac.  801. 

Effect  of  sustaining  demurrer.  When  a 
demurrer  to  the  complaint  is  sustained  on 
the  ground  that  it  does  not  state  a  cause 
of  action,  without  leave  to  amend,  the  de- 
fendant is  entitled  to  have  final  judgment 
entered  in  his  favor.  Mora  v.  Le  Roy,  58 
Cal.  8.  Where  the  order  refusing  leave  to 
amend  the  complaint  is  inserted  in  the 
order  sustaining  the  demurrer  thereto,  it 
cannot  be  presumed  that  the  plaintiff  asked 
leave  to  amend  in  advance  of  the  ruling 
on  the  demurrer;  the  order  denying  the 
right  to  amend  is  deemed  excepted  to  by 
force  of  the  statute,  and  the  plaintiff  is  not 
required  to  move  to  vacate  or  modify  it, 
in  order  to  have  the  point  reviewed  on  ap- 
peal. Schaake  v.  Eagle  Automatic  Can  Co., 
135  Cal.  472;  63  Pac.  1025;  67  Pac.  759. 
Where  the  demurrer  to  the  complaint  is 
sustained,  with  leave  to  amend,  but  the 
plaintiff  declines  to  do  so,  the  judgment 
will  not  be  reversed  on  appeal,  in  order  to 
allow  an  amendment.  Sutter  v.  San  Fran- 
cisco, 36  Cal.  112.  When  the  demurrer  to 
the  complaint  is  sustained,  the  plaintiff  is 
entitled  to  amend,  unless  the  complaint  is 
so  defective  that  it  cannot  be  made  good. 
Ridgway  v.  Began,  2  Cal.  Unrep.  718;  12 
Pac.  343.  Where  the  demurrer  to  the  com- 
plaint is  sustained,  and  plaintiff  did  not 
ask  leave  to  amend,  he  cannot  raise  the 
point  on  appeal.  Durrell  v.  Dooner,  119 
Cal.  411;  51  Pac.  628. 

Demurrer  not  waived  by  answering.  It 
seems  to  have  been  formerly  held  that  the 
filing  of  an  answer  after  the  overruling  of 
the  demurrer  is  a  waiver  of  the  demurrer; 
but  by  this  section,  as  amended,  it  is  ex- 
pressly enacted,  that  the  demurrer  is  not 
waived  by  the  filing  of  an  answer  at  the 
same   time.     Curtiss   v.   Bachmau,   84    Cal. 


«  473  MISTAKES   IN   PLEADINGS   AND   AMENDMENTS.  414 

216'   24  Pac    379      A  demurrer  for  insuflS-  not  fix  the  time  within  which  the  answer  must 

cieucv  of  the  complaint  to  state  a  cause  of  ^^  S'^d-     The  court  has  power  to  fix  such  time 

"-1CUI.J    ui   luv  ^"     1  fy).    answering,    but    where    no    time    is    fixed,    the 

action   IS  not  waived   by   tiJing  an   answer  defendant   sliould   answer   within   the   same   time 

at  the  same  time,  or  subsequently   to  the  as  in  case  of  service  of  a  copy  of  the  original 

filinff  and  overruling  of  the  demurrer,  nor  complaint.    People  v.  Rains,  23  Cal.  128.     Where 

i^     j„.f     4.    „ J    V,,   ,.„_/i^„4-      xj,,«i„,r   ,T  3   demurrer  to  a  complaint  is   sustained,   and  plain- 

is   the   defect   cured   by   ;^erdict.     Hurley   v.  ^.^^  declines  to  amend,  and  appeals  from  the  judg- 
Eyan,    119    Cal.    71;    51    Pac.    20.      It    being  ment    and   the  "order    sustaining    the    demurrer,    if 
expressly  enacted  that  the  demurrer  is  not  the  order  sustaining  the  demurrer  is  affirmed,  the 
waived   bv   the   filing-  of   the   answer   at   the  supreme    court    cannot    then    grant    plaintiff    leave 
,.     '           J!     i.-  '•    -J.    ■           J.          •        1    1  to    amend    his    complaint.     People    v.    Jackson,    24 
same  time,  a  fortiori  it  is  not  waived  by  cal.  633.     If  the  plaintiff  amends  his  complaint, 
the    filing   of   an    answer,   upon    leave    given  and   the   defendant   obtains   an   order   allowing   his 
bv  the  court,  subsequently  to  the  filing  and  answer   on    file    to    stand   as   the    answer   to    the 
„^.^^„i;v,^     ^-p     +!,«     ,1^^.,',,.^^^       n,-,^4-X^„     ^  amended    complaint,    the   answer   is    to    be    treated 
overruling    of    the    demurrer.     Curtiss    v.  ^^  jf  g,g^  ^i,g„   the  order  is  made.    Mulford  v. 
Baehman,  84  Cal.  216;  24  Pac.  379.  Estudillo,  32  Cal.  131.     The  filing  of  a  new  com- 
Filing  amended  pleading  as  waiver  of  objection  P'^'"*'  «^*er  demurrer  has  been  sustained,  is  not 
to    sustaining    or    overruling    of    demurrer.      See  commencing  a  new  action.    Jones  v.  1- rost,  28  Cal. 
notes  19  Ann.  Cas.  306;  Ann.  Cas.  1913B,  388.  ^46.      The    parl.v    desiring    amendment    after    de- 
Right    to    amend    pleading   after   default   judg-  ™urrer   sustained    must   make   his   motion   to   the 
ment.    See  note  Ann    Cas    1913B,  481  court,   and  if  he  does  not  so   move,  he  cannot  ob- 
Amendment     of     pleading     as     requiring     new  J^ct    on    appeal    that    he    was    not    permitted    to 
process.    See  note  Ann.  Cas.  1913B,  831.  amend.    Smith  v.  Yreka  Water  Co.,   14  Cal.   201. 

Where  the  complaint  is  defective,  the  court  must 
CODE  COMMISSIONERS'  NOTE.  The  origi-  sustain  the  demurrer,  giving  leave  to  the  plain- 
nal  section  (S  67)  has  been  changed  so  as  to  tiff  to  amend  his  complaint,  and  if  the  plaintiff 
permit  amendments  of  course  before  answer  or  then  does  not  amend,  final  judgment  should  be 
demurrer.  The  last  clause  of  the  original  sec-  given.  Gallagher  v.  Delaney,  10  Cal.  410.  The 
tion  is  in  substance  embodied  in  the  last  section  defense  relied  on  in  the  answer  being  invalid, 
of  the  preceding  chapter.  If  the  defendant  de-  permission  to  amend  after  judgment  sustaining 
murs  to  the  complaint,  the  plaintiff  must  not  a  demurrer  to  the  answer  was  properly  refused, 
be  denied  leave  to  amend  his  complaint  before  The  allowance  of  the  amendment  was  matter  of 
the  decision  on  the  demurrer,  and  if  the  demur-  discretion,  for  the  abuse  of  which  only  could  the 
rer  is  sustained,  the  plaintiff  must  have  leave  to  supreme  court  interfere.  Gillan  v.  Hutchinson, 
amend  his  complaint,  unless  it  is  so  defective  16  Cal.  153.  See  also  Thornton  v.  Borland,  12 
that  It  cannot  be  remedied  by  amendment.  Lord  Cal.  438;  Seale  v.  McLaughlin,  28  Cal.  668.  An- 
V.  Hopkins,  30  Cal.  76.  When  a  demurrer  is  swer  cannot  be  struck  out  for  failing  to  pay  da- 
overruled,   with   leave   to   answer,   the  order  need  murrer   fees.     People   v.    McClellan,    31    Cal.    101. 

§  473.  Amendments  by  the  court.  Enlarging  time  to  plead  and  relieving 
from  judgments,  etc.  The  court  may  in  furtherance  of  justice,  and  on  such 
terms  as  may  be  proper,  allow  a  party  to  amend  any  pleading  or  proceeding 
by  adding  or  striking  out  the  name  of  any  party,  or  by  correcting  a  mistake 
in  the  name  of  a  party,  or  a  mistake  in  any  other  respect ;  and  may,  upon 
like  terms,  enlarge  the  time  for  answer  or  demurrer.  The  court  may  like- 
wise, in  its  discretion,  after  notice  to  the  adverse  party,  allow,  upon  such 
terms  as  may  be  just,  an  amendment  to  any  pleading  or  proceeding  in  other 
particulars ;  and  may  upon  like  terms  allow  an  answ^er  to  be  made  after  the 
time  limited  by  this  code ;  and  may,  also,  upon  such  terms  as  may  be  just, 
relieve  a  party  or  his  legal  representative  from  a  judgment,  order,  or  other 
proceeding  taken  against  him  through  his  mistake,  inadvertence,  surprise, 
or  excusable  neglect ;  provided,  that  application  therefor  be  made  within  a 
reasonable  time,  but  in  no  case  exceeding  six  months  after  such  judgment, 
order,  or  proceeding  was  taken.  When  from  any  cause  the  summons  in  an 
action  has  not  been  personally  served  on  the  defendant,  the  court  may  allow, 
on  such  terms  as  may  be  just,  such  defendant  or  his  legal  representative,  at 
any  time  within  one  year  after  the  rendition  of  any  judgment  in  such  action, 
to  answer  to  the  merits  of  the  original  action.  AVhen,  in  an  action  to  recover 
the  possession  of  personal  property,  the  person  making  any  affidavit  did  not 
truly  state  the  value  of  the  property,  and  the  officer  taking  the  property,  or 
the  sureties  on  any  bond  or  undertaking  is  sued  for  taking  the  same,  the 
officer  or  sureties  may  in  their  answer  set  up  the  true  value  of  the  property, 
and  that  the  persou  in  whose  behalf  said  affidavit  was  made  was  entitled 
to  the  possession  of  the  same  when  said  affidavit  was  made,  or  that  the 
value  in  the  affidavit  stated  was  inserted  by  mistake,  the  court  shall  dis- 


415 


RELIEF — APPLICATION   FOR,  AND  NATURE  AND  SCOPE  OF. 


§473 


regard  the  value  as  stated  in  the  affidavit,  and  give  judgment  according  to 
the  right  of  possession  of  said  property  at  the  time  the  affidavit  was  made. 

Relief  from  judgment  in  justice's  court.    See       errors  which  might  be  the  subject  of  review 
post,  §  859.  OQ  appeal  therefrom  may  be  considered  oa 

an  a])peal  from  an  order  denying  the  mo- 
tion. People  V.  Greene,  74  Cal.  400;  5  Am. 
St.  Rep.  448;  16  Pac.  197.  Where  judg- 
ment was  entered  by  default,  after  service 
of  summons  by  publication,  and  a  motion  is 
made  to  set  it  aside,  six  years  after  entry 
thereof,  the  attack,  while  it  may  be  said 
to  be  direct,  is,  in  a  technical  sense,  col- 
lateral; it  is  a  proceeding  aside  from  or 
outside  of  the  regular  proceetlings  in  the 
case.  People  v.  Norris,  144  Cal.  422;  77 
Pac.  998.  The  court  may  vacate  a  judg- 
ment entered  by  it,  by  other  proceedings 
than  by  a  motion  for  a  new  trial;  ami  an 
error  committed  in  vacating  the  judgment 
can  be  corrected  on  a  direct  appeal,  but 
on  a  collateral  attack  the  order  will  be 
deemed  to  have  been  properly  made. 
Storke  v.  Storke,  111  Cal.  514;  44  Pac. 
173;  Butler  v.  Soule,  124  Cal.  69;  56  Pac. 
601.  A  party  making  a  collateral  attack 
upon  a  judgment  or  order  must  show  by 
the  record  lack  of  jurisdiction.  Galvin  v. 
Palmer,  134  Cal.  426;  66  Pac.  572.  A 
motion,  under  this  section,  is  usually  made 
and  determined  upon  affidavits  alone,  as 
authorized  by  §  2009,  post.  Guardianship 
of  Van  Loan,  142  Cal.  423;  76  Pac.  37. 
Upon  a  motion  by  a  defendant  to  vacate 
a  judgment  by  default,  the  better  prac- 
tice is  to  make,  prepare,  and  exhibit  to  the 
court  the  answer  he  proposes  or  desires  to 
make.    Bailey  v.  Taaffe,  29  Cal.  422. 

Nature  and  scope  of  relief  provided. 
This  section  is  remedial  in  its  nature,  and 
is  to  be  liberally  construed,  with  a  view 
to  promote  justice.  Palmer  &  Rev  v.  Bar- 
clay, 92  Cal.  199;  28  Pac.  226;  Malone  v. 
Big  Flat  Gold  Mining  Co.,  93  Cal.  384;  28 
Pac.  1063;  Mitchell  v.  California  etc.  S.  S. 
Co.,  156  Cal.  576;  105  Pac.  590;  Norton  v. 
Bassett,  158  Cal.  425;  111  Pac.  253;  Burr 
V.  United  Railroads,  163  Cal.  663;  126  Pac. 
873;  Application  of  Johnson,  7  Cal.  App. 
436;  94  Pac.  592;  Lemon  v.  Hubbard,  10 
Cal.  App.  471;  102  Pac.  554;  San  Fran- 
cisco etc.  Home  Bldg.  Soc.  v.  Leonard,  17 
Cal.  App.  254;  119  Pac.  405;  Jaques  v. 
Owens,  IS  Cal.  App.  114;  122  Pac.  430. 
The  plaintiff,  as  well  as  the  defendant, 
may  invoke  its  relief  (Lemon  v.  Hubbard, 
10  Cal.  App.  471;  102  Pac.  554);  and  it  is 
applicable  to  the  determination  of  the 
question  whether  a  decree  as  to  property 
conforms  to  due  process  of  law.  Hoffman 
•v.  Superior  Court,  151  Cal.  386;  90  Pac. 
939. 

Discretion  of  court  in  granting  or  refus- 
ing relief.  The  granting  of  relief,  under 
this  section,  is  largely  within  the  discre- 
tion of  the  court  (Malone  v.  Big  Flat 
Gravel  Mining  Co.,  93  Cal.  384;  28  Pac. 
1063;  Webster  v.  Somer,  159  Cal.  459;  114 
Pac.    575;    Link   v.   Jarvis,   5    Cal.    Unrep. 


Legislation  g  473.  1.  Enacted  March  11,  1872; 
basul  on  Pra(ti(^e  Act,  §  68,  as  amended  by  Stats. 
18G.'J-t)6,  p.  843,  which  read:  "The  court  may, 
in  furlherancc  of  ju.stice,  and  on  such  terms  as 
may  be  proper,  amend  any  pleading  or  proceed- 
ings by  adding  or  strikiuK  out  the  name  of  any 
party,  or  by  correcting  a  mistake  in  the  name  of 
a  party,  or  a  mistake  in  any  other  respect,  and 
may,  upon  like  terms,  enlarge  the  time  for  an 
answer  or  demurrer,  or  demurrer  to  an  answer 
filed.  The  court  may  likewise,  upon  affidavit 
showing  good  cause  therefor,  after  notice  to  the 
adverse  party,  allow,  upon  such  terms  as  may  be 
just,  an  amendment  to  any  pleading  or  proceed- 
ing in  other  particulars,  and  may,  upon  like 
terras,  allow  an  answer  to  be  made  after  the  time 
limited  by  this  act;  and  may,  upon  such  terras 
as  may  be  just,  and  upon  payment  of  costs,  re- 
lieve a  party  or  his  legal  representatives  from 
a  judgment,  order,  or  other  proceeding  taken 
against  him  through  his  mistake,  inadvertence, 
surprise,  or  excusable  neglect;  and  when,  for  any 
cause  satisfactory  to  the  court,  or  the  judge  at 
chambers,  the  party  aggrieved  has  been  unable 
to  apply  for  the  relief  souglit  during  the  term 
at  which  such  judgment,  order,  or  proceeding 
comi)!ained  of  was  taken,  the  court,  or  the  judge 
at  chambers  in  vacation,  may  grant  the  relief 
upon  application  made  within  a  reasonable  time, 
not  exceeding  tive  months  after  the  adjournment 
of  the  term.  When,  from  any  cause,  the  sum- 
mons and  a  copy  of  the  complaint  in  an  action 
have  not  been  personally  served  on  the  defend- 
ant, the  court  may  allow,  on  such  terms  as  may 
be  just,  such  defendant  or  his  legal  representa- 
tives at  any  time  within  six  months  after  the 
rendition  of  any  judgment  in  such  action,  to  an- 
swer to  the  merits  of  the  original  action."  When 
enacted  in  1872,  (1)  the  word  "an"  was  omitted 
before  the  words  "answer  or  demurrer,"  and,  im- 
mediately after  these  words,  the  words  "or  de- 
murrer   to    an    answer    filed"    were    also    omitted, 

(2)  the  word   "act"   was  changed   to   "code,"   and 

(3)  the  word  "representatives"  was  changed  to 
"representative." 

3.   Amended  by  Code  Amdts.  1873-74.  p.  302, 

(I)  inserting  the  words  "allow  a  party  to,"  be- 
fore "amend  any";  (2)  changing  the  word  "pro- 
ceedings"   to    "proceeding,"    before    "by    adding"  ; 

(3)  adding  the  words  "in  its  discretion,"  instead 
of  "upon  aiSdavit  showing  good  cause  therefor"  ; 

(4)  inserting  the  word  "also"  instead  of  the 
words  "may,  upon  such  terms  as  may  be  just, 
and  upon  payment  of  costs";  (5)  after  the  word 
"legal,"  changing  "representatives"  to  "repre- 
sentative"; (6)  changing  the  word  "cause"  to 
"reason";  (7)  changing  the  words  "at  cham- 
bers," after  "judge,"  to  "thereof"'  (8)  changing 
the  words  "been  able"  to  "failed,"  before  "to 
apply";  (9)  changing  the  words  "at  chambers," 
before  "in  vacation,"  to  "thereof";  (10)  chan- 
ging, after  "exceeding,"  the  word  "five"  to  "six"; 

(II)  omitting  the  words  "and  a  copy  of  the  com- 
plaint," after  "summons";  (12)  changing  the 
word  "have"  to  "has,"  before  "not  been";  (13) 
changing  the  words  "six  months"  to  "one  year," 
before  "after  the  rendition";  (14)  adding  the 
last  sentence,  beginning  "When,  in  an  action," 
which  read  as  at  present,  except  that  it  did  not 
contain  the  words  "or  undertaking,"  after  "auy 
bond." 

3.   Amended  by  Code  Amdts.  1880,  p.  2. 

Application  for  relief,  how  made.     An 

application  for  relief,  under  this  section, 
must  be  by  a  proceeding  in  the  cause 
wherein  the  default  was  taken,  and  not  by 
a  separate  suit  for  relief  against  the  judg- 
ment. Estate  of  Griffith,  84  Cal.  107;  23 
Pac.  528;  24  Pac.  381.  A  motion  to  set 
aside  a  judgment  is  a  direct  and  not  a  col- 
lateral attack  upon  such  judgment;  hence, 


§473 


MISTAKES   IN   PLEADINGS   AND    AMENDMENTS. 


416 


750;  33  Pac.  206;  Murphy  v.  Stelling,  1 
Cal.  App.  95;  81  Pac.  730;  Pelegrinelli  v. 
McCloud  Eiver  Lumber  Co.,  1  Cal.  App. 
593;  82  Pac.  695;  Freeman  v.  Brown,  5 
Cal.  App.  516;  90  Pac.  970;  Doherty  v. 
California  Nav.  etc.  Co.,  6  Cal.  App.  131; 
SI  Pac.  419;  Klokke  v.  Raphael,  8  Cal. 
App.  1;  96  Pac.  392;  Lemon  v.  Hubbard, 
10  Cal.  App.  471;  102  Pac.  554) ;_  though 
in  some  cases  it  is  without  any  discretion 
iu  the  premises.  Holiness  Church  v.  Metro- 
politan Church  Ass'n,  12  Cal.  App.  445; 
107  Pac.  633.  The  principal  purpose  of 
vesting  the  court  with  discretionary  power 
is  to  enable  it  so  to  mold  and  direct  its 
proceedings  as  to  dispose  of  cases  on  their 
substantial  merits,  when  this  can  be  done 
without  injustice  to  either  partv.  Ward 
V.  Clay,  82  Cal.  502;  23  Pac.  50,  227.  The 
effect  of  the  qualifying  phrase,  "on  such 
terms  as  may  be  just,"  in  this  section,  is, 
not  to  give  the  court  power  or  discretion 
to  refuse  the  relief  when  the  statutory 
conditions,  expressed  and  implied,  are  met, 
but  merely  to  confer  upon  it  the  power, 
when  it  finds  the  defendant  entitled  to  the 
relief,  to  consider  whether  or  not  the  de- 
fendant maj'  not  have  been  negligent  in 
a  degree  which  would  amount  to  laches, 
or  create  an  estoppel,  and  whether  or  not 
the  plaintiff,  or  his  successor,  may  not 
have  innocently,  on  the  faith  of  the  judg- 
ment, incurred  costs  or  expenses  which  the 
defendant,  in  justice,  should  refund,  and 
to  impose  on  the  defendant  such  terms  as 
may  be  necessary  to  do  complete  justice 
between  the  parties,  and  to  fix  the  time 
for  filing  the  answer,  and  limit  and  define 
its  character,  so  that  it  shall  be  addressed 
to  the  merits.  Grav  v.  Lawlor,  151  Cal. 
352;  Poland  v.  All  Persons,  160  Cal.  486; 
Osmont  V.  All  Persons,  165  Cal.  587. 

Power  of  appellate  court  under  this  sec- 
tion. An  appellate  court,  whether  this 
section  is  applicable  to  it  or  not,  should, 
when  the  facts  justify  it,  allow  a  tran- 
script to  be  filed  after  the  time  fixed,  and 
retain  the  appeal  (Estate  of  Keating,  158 
Cal.  109;  110  Pac.  109);  but  if  rules  simi- 
lar to  those  governing  applications  for 
relief  under  this  section  are  to  be  applied 
in  the  appellate  court,  the  party  asking 
relief  from  his  default  must  at  least  show 
that  he  has  consulted  counsel,  and  has  been 
advised  by  them  that  he  has  reasonable 
ground  to  expect  a  reversal  if  the  appeal 
is  heard  upon  its  merits.  Erving  v.  Napa 
Valley  Brewing  Co.,  16  Cal.  App.  41;  116 
Pac.  331.  An  appeal  is  not  subordinate 
to  an  application  for  relief,  under  this  sec-. 
tion.  Nevin  v.  Gary,  12  Cal.  App.  1;  106 
Pac.  422.  A  clerical  error,  disclosed  by 
the  pleadings,  will  be  corrected  in  the  ap- 
pellate court,  at  the  appellant's  cost,  where 
no  motion  was  made  for  its  correction  in 
the  court  below.  Tryon  v.  Wutton,  13  Cal. 
490. 

Remedy  provided  for  mistakes  of  law 
and  fact.     The   court  lias   j)ower  to  allow 


an  amendment  correcting  mistakes  of  law 
as  well  as  of  fact  (Ward  v.  Clay,  82  Cal. 
502;  23  Pac.  50,  227;  Gould  v.  Stafford, 
101  Cal.  32;  35  Pac.  429;  Mitchell  v.  Cali- 
fornia etc.  S.  S.  Co.,  156  Cal.  576;  105  Pac. 
590;  Churchill  v.  More,  7  Cal.  App.  767; 
96  Pac.  lUS;  Dent  v.  Superior  Court,  7  Cal. 
App.  683;  95  Pac.  672;  Amestoy  Estate  Co. 
V.  Los  Angeles,  5  Cal.  App.  273;  90  Pac. 
42),  and  to  grant  relief  against  a  mistake 
in  any  respect;  although,  it  may  be,  the 
court  should  require  a  stronger  showing  to 
justify  relief  from  the  effect  of  a  mistake 
of  law  than  in  case  of  a  mistake  as  to  a 
matter  of  fact.  Ward  v.  Clay,  82  Cal.  502; 
23  Pac.  50,  227.  Not  all  mistakes  of  law 
are  to  be  relieved  against;  a  sound  discre- 
tion, controlled  by  an  enlightened  judg- 
ment, keeping  in  view  public  interests,  and 
the  due  and  orderly  administration  of  the 
law,  is  to  be  exercised  in  granting  that 
relief  which  justice  between  the  parties 
requires.  Douglass  v.  Todd,  96  Cal.  655;  31 
Am.  St.  Rep.  247;  31  Pac.  623.  Where  a 
party  has,  in  good  faith,  made  an  earnest 
effort  to  ascertain  the  condition  of  his 
case,  and  has  availed  himself  of  such 
means  as  would  be  ordinarily  employed, 
but  is  misled  thereby,  he  can  justly  claim 
that  his  mistake  was  not  the  result  of  neg- 
ligence, and  he  cannot  be  deprived  of  the 
remedy  provided  by  this  section.  Melde 
V.  Reynolds,  129  Cal.  308;  61  Pac.  932. 
The  general  rule,  that  a  party  cannot  be 
relieved  from  an  ordinary  contract,  which 
is  in  its  nature  final,  on  account  of  a  mis- 
take of  law,  does  not  apply  to  proceedings 
in  an  action  at  law,  pending  and  undeter- 
mined. Gould  V.  Stafford,  101  Cal.  32;  35 
Pac.  429.  Courts  have  power,  under  this 
section,  to  relieve  parties  from  mistakes 
as  to  the  legal  effect  of  acts  of  their  attor- 
neys. Broderick  v.  Cochran,  18  Cal.  App. 
202;  122  Pac.  972.  A  mistake  in  the  name 
of  a  partv  may  be  corrected.  Nisbet  v. 
Clio  Mining  Co.,  2  Cal.  App.  436;  83  Pac. 
1077.  The  correction  of  a  mistake  as  to 
the  names  of  the  assignors  of  a  cause  of 
action  does  not  affect  the  identity  of  the 
cause  of  action  sued  upon,  as  respects  the 
statute  of  limitations.  Nellis  v.  Pacific 
Bank,  127  Cal.  166;  59  Pac.  830.  A  mis- 
take as  to  the  date  upon  which  the  ser- 
vice of  summons  was  made  is  such  a 
mistake  as  is  clearly  contemplated  by  this 
section,  and  against  which  the  court  may 
grant  relief  by  vacating  a  judgment  by 
default.  Miller  v.  Carr,  116  Cal.  378;  58 
Am.  St.  Rep.  180;  48  Pac.  324.  An  alle- 
gation in  a  cross-complaint,  that,  at  the 
time  an  agreement  was  executed,  both  par- 
ties intended  that  it  should  include  the 
property  sued  for,  and  that  the  same  was 
omitted  through  a  mistake,  is,  in  the  ab- 
sence of  a  demurrer,  a  sufiicient  allegation 
of  the  mistake  in  the  execution  of  the 
agreement.  Peasley  v.  McFadden,  68  Cal. 
611;  in  Pac.  179.  Relief  on  the  ground 
of  a  mistake  of  fact,  not  discovered  within 


417 


ERRORS — CLERICAL    AND    JUDICLVL CORRECTION    OP. 


§473 


six  months  after  the  entry  of  the  decree, 
is  not  confinetl  to  a  motion  under  this  sec- 
tion (Gerig  v.  Loveland,  130  Cal.  512;  62 
Pac.  830);  but  equitable  relief  may  be  had, 
upon  the  setting;  out,  in  exteuso,  of  the 
facts  justifying  such  relief,  in  addition  to 
the  ordinary  statements  of  the  cause  of 
action.  Brackett  v.  Banegas,  116  ('al.  278; 
58  Am.  St.  Kep.  Hit;  48  Pac.  90. 

Correction  of  clerical  errors.  The  au- 
thority of  the  court  to  cause  its  records 
to  be  corrected  in  accordance  with  the 
facts,  is  undoubted.  Kaufman  v.  Shain, 
111  Cal.  16;  52  Am.  St.  Rep.  139;  43  Pac. 
393.  The  court  may,  at  any  time,  amend 
a  judgment,  whore  the  record  discloses 
that  the  entry  on  the  minutes  does  not 
correctly  state  the  judgment  (Scamman  v. 
Bonslett,  118  Cal.  93;  62  Am.  St.  Rep.  226; 
50  Pac.  272) ;  it  has  power,  at  all  times, 
in  a  projier  case,  to  direct  any  amendment 
or  correction  in  a  judgment,  to  the  end 
that,  as  entered,  it  may  express  what  was 
rendered,  and  the  record  thus  made  to 
speak  the  fact   (Cosby  v.   Superior   Court, 

110  Cal.  45;  42  Pac.  460);  and,  while  it 
has  physical  control  of  its  records,  may 
amend  its  judgment  or  orders,  where  the 
record  furnishes  the  data  by  which  to 
amend,  and  where  the  necessity  for  the 
amendment  is  apparent  upon  the  record 
(Bostwick  V.  McEvoy,  62  Cal.  496;  Dickey 
V.  Gibson,  113  Cal.  26;  54  Am.  St.  Rep. 
321;  45  Pac.  15;  Scamman  v.  Bonslett,  118 
Cal.  93;  62  Am.  St.  Rep.  226;  50  Pac.  272)  ; 
and  it  is  its  duty  so  to  amend  its  judgment 
or  record  as  to  make  it  conform  to  its 
actual  decision  (Canadian  etc.  Trust  Co.  v. 
Clarita  etc.  Investment  Co.,  140  Cal.  672; 
74  Pac.  301;  O'Brien  v.  O'Brien,  124  Cal. 
422;  57  Pac.  225);  but  not  to  express  some- 
thing the  court  did  not  pronounce,  even 
though  the  amendment  embraces  matters 
that  ought  to  have  been  pronounced.  First 
Nat.  Bank  v.  Dusy,  110  Cal.  69;  42  Pac. 
476.  The  court  may  amend  its  judgments 
or  orders  while  the  records  are  under  its 
control,  and  where  they  furnish  the  data 
by  which  to  amend,  and  the  necessity  for 
the  amendment  is  manifest  therein  (Bost- 
wick V.  McEvoy,  62  Cal.  496);  but  the 
court  may  amend  its  record  upon  any  com- 
petent  legal    evidence.     Kaufman   v.    Shain, 

111  Cal.  16;  52  Am.  St.  Rep.  139;  43  Pac. 
393.  Any  error  or  defect  in  the  record, 
occurring  through  acts  of  omiKsion  or  com- 
mission of  the  clerk,  that  may  be  termed 
a  clerical  mis])rision,  if  the  record  affords 
evidence  thereof,  may  be  corrected  at  any 
time  by  the  court,  upon  its  own  motion  or 
upon  the  motion  of  an  interested  party, 
either  with  or  without  notice  (Scamman  v. 
Bonslett.  118  Cal.  93;  62  Am.  St.  Rep.  226; 
50  Pac.  272;  Dickev  v.  Gibson,  113  Cal.  26; 
54  Am.  St.  Rep.  321;  45  Pac.  15),  even 
after  appeal  and  affirmance  of  judgment, 
and  the  issuance  and  service  of  execution 
(Rousset  V.  Boyle,  45  Cal.  64),  providing 
the  party  moving  proceeds  with  due  dili- 

1  Fair. — 27 


gence  (IFcgoler  v.  Ilenckell,  27  Cal.  491), 
and  the  mistake  is  one  which  does  not  go 
to  the  merits  of  the  case.  Fallon  v.  Brit- 
tan,  84  Cal.  511;  24  Pac.  381;  Egan  v. 
Kgan,  90  CaL  15;  27  Pac.  22;  O'Brien  v. 
O'Brien,  124  Cal.  422;  57  Pac.  225.  Such 
amendments  can  be  maile  after  the  expira- 
tion of  six  months  from  the  entry  of  the 
judgment  (Egan  v.  Egan,  90  Cal.  15;  27 
Pac.  22),  but  they  do  not  operate  to  exteml 
the  time  for  taking  an  appeal  from  the 
decree.  Fallon  v.  Brittan,  84  Cal.  511;  24 
Pac.  381.  An  error  of  descri])tion  in  a 
name,  which  is  apparent  upon  the  face  of 
the  record,  and  amounting  only  to  a  cleri- 
cal error,  may  be  corrected  by  the  court 
at  any  time.  Fallon  v.  Brittan,  84  Cal.  511, 
24  Pac.  381.  The  fact  that  the  judgment 
is  signed  by  the  judge  does  not  show  that 
the  mistake  is  not  a  clerical  error.  Bem- 
merly  v.  Woodward,  124  Cal.  568;  57  Pac. 
561.  The  action  of  the  clerk  in  inserting 
in  a  decree  of  foreclosure  the  amount  of 
costs  as  claimed  by  the  plaintiff,  before  the 
same  has  been  taxed  or  ascertained,  is  a 
mere  clerical  misprision,  which  may  be 
amended  by  the  court,  and  does  not  affect 
the  validity  of  the  decree,  or  the  validity 
of  the  order  of  sale  thereunder.  Janes  v. 
Bullard,  107  Cal.  130;  40  Pac.  108.  If  one 
person  is  named  as  defendant  in  a  suit, 
and  is  served  with  summons,  and  suffers 
default,  but  by  a  clerical  misprision  a  de- 
cree is  entered  against  another,  the  error 
may  be  corrected  at  any  time  by  the  court, 
and  its  power  to  do  so  is  not  affectcii  by 
the  fact  of  an  appeal  taken  in  the  name  of 
the  misnamed  defendant.  Fay  v.  Stuben- 
rauch,  141  Cal.  573;  75  Pac.  174.  An  acci- 
dent in  entering  judgment  against  two 
defendants  instead  of  one,  if  not  corrected 
before  motion  to  set  it  aside  is  made,  may 
be  corrected  by  amendment,  in  the  discre- 
tion of  the  court.  Lewis  v.  Rigney,  21  Cal. 
268.  Where  the  court,  by  its  decree,  or- 
dered encumbered  property  to  be  sold  by 
the  sheriff,  while  the  order,  made  and  en- 
tered the  same  day,  appointed  a  commis- 
sioner to  discharge  the  same  duty,  this  is 
a  mere  oversight  by  the  court,  which  may 
be  remedied  at  any  time  on  motion,  by 
striking  out  the  word  "sheriff,"  wherever 
it  occurs,  and  inserting  "commissioner." 
McDermot  v.  Barton,  106  Cal.  194;  39  Pac. 
538.  Where  a  defendant  is  convicted  of 
practicing  dentistry  without  a  license,  and 
judgment  is  rendered  against  him,  an  erro- 
neous recital  in  the  entry  of  the  judgment, 
that  the  defendant  had  been  convicted  of 
practicing  "medicine"  without  a  license,  is 
a  mere  clerical  mistake,  which  the  court 
mav  amend  to  conform  to  the  facts.  Ex 
parte  Hornef,  154  Cal.  355;  97  Pac.  891. 

Correction  of  judicial  errors.  A  judi- 
cial error  can  be  remedied,  only  through 
motion  for  a  new  trial  or  on  appeal  (Egan 
V.  Etjan,  90  Cal.  15;  27  Pac.  22;  O'Brien 
V.  O'Brien,  124  Cal.  422;  57  Pac.  22.'^; 
Canadian  etc.  Trust  Co.  v.  Clarita  etc.  In- 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


418 


vestment  Co.,  140  Cal.  672;  74  Pac.  301);  it 
cannot  be  summarily  corrected  at  any  time. 
Forrester  v.  Lawler,  14  Cal.  App.  171;  111 
Pac.  2S4.  The  court  has  no  power,  after 
the  entry  of  judgment,  to  correct  judicial 
omissions  or  mistakes  (First  Nat.  Bank  v. 
Dusy,  110  Cal.  69;  42  Pac.  476),  or  to  make 
a  new  order,  directing  a  relief  different 
from  that  embraced  in  the  original  order 
and  judgment;  and  where  the  judgment 
is  entered  by  the  clerk  exactly  as  ordered 
by  the  court,  there  is  no  mistake  or  mis- 
prision of  the  clerk;  if  any  error  is  com- 
mitted in  rendering  the  judgment,  it  is  a 
judicial  error,  which  can  be  remedied  only 
by  an  appeal  or  by  a  motion  for  a  new 
trial.  Bryne  v.  Hoag,  116  Cal.  1;  47  Pac. 
775;  Lemon  v.  Hubbard,  10  Cal.  App.  471; 
102  Pac.  554.  Where  judgment  was  en- 
tered against  an  administrator,  substi- 
tuted for  a  deceased  plaintiff,  and  a  blank 
was  left  for  costs  against  the  plaintiff  per- 
sonally, such  judgment  cannot,  years  after- 
wards, be  amended  by  the  record  as  a  mere 
clerical  misprision,  so  as  to  make  the  costs 
chargeable  against  the  estate;  and  there 
being  no  record  evidence  to  show  that 
the  judgment  entered  was  not  the  correct 
judgment  of  the  court,  it  must,  if  errone- 
ous, stand  as  the  judgment  until  reversed. 
Leonis  v.  Leffingwell,  126  Cal.  369;  58  Pac. 
940.  A  record  sent  to  the  supreme  court 
cannot  be  assailed  by  evidence  of  lower 
dignity  than  itself;  if  it  is  incorrect,  the 
court  below,  on  a  proper  showing  by  evi- 
dence, has  power  to  alter  it  so  as  to  make 
it  speak  the  truth.  Boyd  v.  Burrel,  60  Cal. 
280. 

Matters  which  may  be  amended.  A 
void  process  cannot  be  amended,  but  an 
erroneous  process  may.  Kewmark  v.  Chap- 
man, 53  Cal.  557.  Proof  of  service  of  sum- 
mons may  be  amended,  where  imperfect 
(Herman  v.  Santee,  103  Cal.  519;  42  Am. 
St.  Eep.  145;  37  Pac.  509);  as  may  also 
an  insufficient  affidavit  of  merits,  on  mo- 
tion to  change  the  place  of  trial.  Palmer 
&  Piey  V.  Barclay,  92  Cal.  199;  28  Pac.  226; 
Jaques  v.  Owens,  18  Cal.  App.  114;  122 
Pac.  430.  An  affidavit  and  undertaking 
on  attachment,  before  the  amendment  of 
1909  to  §  558,  post,  was  not  amendable. 
Tibbet  v.  Tom  Sue,  122  Cal.  206;  54  Pac. 
741.  No  substantial  change  can  be  made 
in  an  allowed  claim  after  the  expiration 
of  the  time  allowed  for  the  presentation 
of  claims  (Estate  of  Sullenberger,  72  Cal. 
549;  14  Pac.  513;  Estate  of  Turner,  128 
Cal.  388;  60  Pac.  967);  and  an  application 
to  amend  for  inadvertence  or  mistake  can- 
not be  made  after  the  expiration  of  six 
months  from  the  allowance  of  the  claim. 
Estate  of  Turner,  128  Cal.  388;  60  Pac.  967. 
A  claim  of  lien  is  not  capable  of  being 
amended  or  reformed  (Madera  Flume  etc. 
Co.  V.  Kendall,  120  Cal.  182;  65  Am.  St. 
Kep.  177;  52  Pac.  304),  but  a  cost-bill  is. 
Burnham  v.  Hays,  3  Cal.  115;  58  Am.  Dec. 
389.     A  stipulation,  entered  into  between 


attorneys  in  a  pending  action,  which  per- 
forms the  function  of  a  replication  to  the 
answer,  may  be  amended  or  set  aside,  as 
if  it  were  a  pleading.  Ward  v.  Clay,  82 
Cal.  502;  23  Pac.  50,  227.  The  trial  court 
cannot,  after  a  judgment  has  been  affirmed 
on  appeal,  change  or  modify  such  final 
judgment.  Wickersham  v.  Crittenden,  103 
Cal.  582;  37  Pac.  513. 

Liberality  in  allowing  amendments  to 
pleadings.  As  experience  shows  that,  in 
the  attainment  of  justice  by  resort  to  judi- 
cial tribunals,  amendments  to  pleadings 
are  of  ever-recurring  necessity,  the  ten- 
dency of  judicial  decision  is  towards  liber- 
ality in  permitting,  where  it  can  be  done 
without  working  great  delay,  such  amend- 
ments as  facilitate  the  production  of  all 
the  facts  bearing  upon  the  questions  in- 
volved. Burns  v.  Scooffy,  98  Cal.  271;  33 
Pac.  86.  The  liberality  required  in  allow- 
ing amendments  to  pleadings  should  be 
exercised  only  in  the  furtherance  of  jus- 
tice (Bank  of  Woodland  v.  Heron,  122  Cal. 
107;  54  Pac.  537);  and  such  amendments 
should  be  allowed  at  any  stage  of  the  trial, 
in  the  furtherance  of  justice  (Link  v.  Jar- 
vis,  5  Cal.  Unrep.  750;  33  Pac.  206;  Han- 
son V.  Stinehoff,  139  Cal.  169;  72  Pac.  913; 
Tingley  v.  Times  Mirror  Co.,  151  Cal.  1; 
89  Pac.  1097),  where  they  do  not  seriously 
impair  the  rights  of  the  opposite  party: 
this  rule  is  particularly  applicable  to 
amendments  to  the  answer.  Gould  v.  Staf- 
ford, 101  Cal.  32;  35  Pac.  429.  It  is 
proper  to  allow  the  pleadings  to  be 
amended  so  that  they  shall  conform  to 
the  grounds  upon  which  the  case  must  be 
tried.  Chalmers  v.  Chalmers,  81  Cal.  81; 
22  Pac.  395.  It  is  within  the  discretion 
of  the  court  to  permit  the  plaintiff  so  to 
amend  his  complaint  as  to  correct  an  in- 
consistency between  the  allegations  and 
the  prayer  (French  v.  McCarthy,  125  Cal. 
508;  58  Pac.  154);  and  he  should  be  per- 
mitted BO  to  amend  his  complaint  as  to 
present  his  legal  rights  for  the  determina- 
tion of  the  jury,  otherwise  the  case  should 
be  dismissed.  McDonald  v.  Bear  Eiver  etc. 
Mining  Co.,  15  Cal.  145.  Where  the  plain- 
tiff has  a  good  cause  of  action,  which,  by 
accident  or  mistake,  he  has  failed  to  set 
out  in  his  complaint,  the  court,  on  motion 
for  judgment  on  the  pleadings,  should,  on 
his  application  so  to  do,  permit  him  to 
amend;  but  w^here  he  fails  to  make  such 
application,  the  defendant  is  entitled  to 
judgment  on  the  pleadings.  Kelley  v. 
Kriess,  68  Cal.  210;  9  Pac.  129.  There  is 
no  error  in  permitting  the  plaintiff  so  to 
amend  his  complaint  as  to  express  the 
cause  of  action  originally  intended,  but 
not  clearly  expressed,  where  such  inten- 
tion can  be  gathered  from  the  face  of  the 
pleading.  Nevada  County  etc.  Canal  Co. 
v.  Kidd,  28  Cal.  673.  Permission  to  amend 
should  be  granted,  unless  it  is  clear  to  the 
trial  court  that  a  defective  complaint  can- 
not  be  amended  so   as  to   obviate   objec- 


419 


AMENDMENTS — LIBERALITY  IN  ALLOWING — DISCRETION. 


§473 


tions  made  thereto.  Payne  v.  Baehr,  153 
Cal.  441;  95  Pac.  895.  Where  the  amended 
complaint  is  unobjectionable,  and  judg- 
ment is  rendered  thereupon,  the  fact  that 
the  original  complaint  did  not  state  a 
cause  of  action  is  immaterial.  Hunter  v. 
Bryant,  98  Cal.  247;  33  Pac.  51.  Where 
an  action  was  tried,  on  both  sides,  upon 
a  Avrong  theory,  the  plaintiff  will  be  per- 
mitted, upon  reversal  of  the  judgment,  to 
amend  his  complaint  so  as  to  avail  him- 
self of  any  equities,  where,  under  plead- 
ings properly  framed  for  that  jjurpose,  he 
might  be  entitled  to  a  judgment  for  spe- 
cific performance,  or  some  other  equitable 
relief.  Fudickar  v.  East  Riverside  Irriga- 
tion Dist.,  109  Cal.  29;  41  Pac.  1024.  In 
an  action  to  recover  for  services,  it  is 
error  not  to  permit  the  complaint  to  be 
amended  so  as  to  state  the  value  of  the 
services.  Cowdery  v.  McChesnev,  124  Cal. 
363;  57  Pac.  221.  Where  the  plaintiff,  in 
replevin,  discovers,  before  trial,  that  he  is 
not  entitled  to  all  of  the  property  sued  for, 
it  is  within  the  discretion  of  the  court  to 
permit  the  complaint  to  be  so  amended  as 
to  exclude  therefrom  the  portion  to  which 
he  is  not  entitled.  Mills  v.  Jackson,  19 
Cal.  App.  695;  127  Pac.  655.  It  can  very 
rarely  happen  that  a  court  will  be  justi- 
fied in  refusing  a  party  leave  to  amend 
his  pleading  so  that  he  may  properly  pre- 
sent his  case,  and  obviate  any  objection 
that  the  facts  constituting  his  cause  of 
action  or  his  defense  are  not  embraced 
within  the  issues,  or  properly  presented 
by  his  pleading;  this  rule  is  especially 
cogent  where  the  objection  to  the  testi- 
mony is,  not  that  it  is  then  for  the  first 
time  brought  to  the  notice  of  the  adver- 
sary, but  that,  by  reason  of  the  language 
of  the  pleading,  it  is  not  within  the  terms 
of  the  issue.  Guidery  v.  Green,  95  Cal. 
630;  30  Pac.  786;  Crosby  v.  Clark,  132  Cal. 
1;  63  Pac.  1022.  Where  amendments  pro- 
posed to  a  complaint,  together  with  the 
complaint,  state  a  cause  of  action,  the  re- 
fusal to  allow  such  amendments  is  error. 
Campbell-Kawannanakoa  v.  Campbell,  152 
Cal.  201;  92  Pac.  184.  To  strike  out  a 
pleading  susceptible  of  being  amended  by 
a  statement  of  facts  known  to  exist,  and 
which  constitute  a  cause  of  action  or  de- 
fense to  the  action,  is  a  harsh  proceeding, 
and  should  be  resorted  to  only  in  extreme 
cases:  to  refuse  permission  to  answer,  with 
a  valid  defense  in  hand,  can  be  justified 
only  in  the  face  of  facts  showing  willful 
neglect,  inexcusable  carelessness,  or  irrep- 
arable injury  to  the  plaintiff.  Burns  v. 
Scooffy,  98  Cal.  271;  33  Pac.  86.  A  de- 
fective complaint  in  an  attachment  suit 
may  be  amended  without  afl'ecting  the  at- 
tachment lien;  and  an  objection  that  the 
amendment  stated  a  different  cause  of  ac- 
tion from  that  declared  on  in  the  origi- 
nal complaint  cannot  be  urged  for  the  first 
time  in  a  collateral  suit  on  a  bond  given 
for    a    release    of    the    attachment.     Ham- 


mond v.  Starr,  79  Cal.  556;  21  Pac.  971. 
Whore  the  com{)laint  states  a  cause  of 
action,  it  is  an  abuse  of  discretion,  ap- 
parent uiion  the  face  of  the  record,  to 
sustain  demurrers  thereto,  on  any  ground, 
without  granting  leave  to  amend;  but 
where  the  fault  cannot  be  remedied,  or  it 
is  evident  that  there  is  a  want  of  facts, 
further  amendments  should  be  refused. 
Schaake  v.  Eagle  Automatic  Can  Co.,  135 
Cal.  472;  63  Pac.  1025;  67  Pac.  759.  While 
it  is  generally  a  matter  of  absolute  rule 
to  permit  the  plaintiff  to  amend  his  com- 
l)laint,  yet  permission  may  be  refused, 
where  the  complaint  cannot  be  so  amended 
as  to  state  a  good  cause  of  action  (People 
v.  Mount  Shasta  Mfg.  Co.,  107  Cal.  256; 
40  Pac.  391);  and  where  the  complaint 
is  incapable  of  amendment,  in  any  radical 
particular,  the  refusal  of  the  court  to 
allow  the  plaintiff  to  amend  is  not  error 
(San  .Toaquin  etc.  Irrigation  Co.  v.  Stanis- 
laus County,  155  Cal.  21;  99  Pac.  365); 
and  where  the  granting  of  an  application 
for  leave  to  amend  will  work  a  continu- 
ance of  the  trial,  the  refusal  is  justified. 
Manha  v.  Union  Fertilizer  Co.,  151  Cal. 
581;  91  Pac.  393.  A  plaintiff  who  declines 
to  amend  his  complaint,  when  offered  the 
opportunity  to  do  so,  cannot  afterwards 
be  allowed  to  treat  it  as  amended,  where 
no  amendment  was  in  fact  made.  Carpen- 
tier  v.  Brenham,  50  Cal.  549;  Guidery  v. 
Green,  95  Cal.  630;  30  Pac.  786.  Error  of 
the  court  in  striking  out  portions  of  an 
original  complaint,  is  waived  by  filing  an 
amended  complaint  subsequently.  Collins 
V.  Scott,  100  Cal.  446;  34  Pac.  1085.  There 
is  no  distinction  Vjetween  an  amendment 
"to"  a  pleading  and  an  amendment  "of"  a 
pleading.  Giddinas  v.  76  Land  and  Water 
Co.,  109  Cal.  116;  41  Pac.    788. 

Discretion  as  to  aiiiendments.  The  court 
always  has  a  discretion  to  grant  or  to 
refuse  leave  to  amend,  under  this  section 
(Norton  v.  Bassett,  158  Cal.  425;  111  Pac. 
253;  Smith  v.  Riverside  Groves  etc.  Co., 
19  Cal.  App.  165;  124  Pac.  870);  and  where 
it  abuses  or  illegally  exercises  such  dis- 
cretion, its  action  will  be  corrected  on 
appeal  (Cooke  v.  Spears,  2  Cal.  409;  56 
Am.  Dec.  348) ;  but  the  appellate  court 
will  not  interfere  with  the  action  of  the 
lower  court,  unless  it  is  shown  by  the 
record  that  there  has  been  an  abuse  of 
discretion.  Stewart  v.  Douglass,  148  Cal. 
511;  83  Pac.  699;  Thornton  v.  Borland,  12 
Cal.  438;  Robinson  v.  Smith,  14  Cal.  254; 
Gillan  v.  Hutchinson,  16  Cal.  153;  Les- 
trade  v.  Barth,  17  Cal.  285;  Wixon  v.  De- 
vine,  91  Cal.  477;  27  Pac.  777.  The  refusal 
of  the  trial  court  to  allow  amendments  is 
not,  per  se,  error.  Emeric  v.  Alvarado,  90 
Cal.  444;  27  Pac.  356.  Where  the  com- 
plaint is  amended  at  the  trial,  the  court, 
in  the  exercise  of  its  discretion,  may  de- 
termine the  time  within  which  the  answer 
or  a  demurrer  thereto  shall  be  filed;  and 
where   this    discretion   is   not   abused,    the 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


420 


action  of  the  lower  court  will  not  be  re- 
viewed. Schultz  V.  McLean,  109  Cal.  437; 
42  Pac.  557.  In  an  ordinary  case  of  ab- 
sence of  averment,  or  of  insufficient  aver- 
ment, it  is  an  abuse  of  discretion  to  refuse 
leave  to  amend.  Robertson  v.  Burrell,  110 
Cal.  568;  42  Pac.  1086.  In  an  action  for 
damages  for  the  death  of  a  person,  it  is 
not  error  for  the  court,  in  its  discretiofi, 
during  the  progress  of  the  trial,  and  sev- 
eral months  after  the  answer  is  filed,  to 
refuse  to  allow  an  amendment  to  the  an- 
swer, alleging,  on  information  and  belief, 
the  existence  of  other  heirs,  so  as  to  au- 
thorize the  admission  of  evidence  on  that 
subject,  where  the  defendant  has  rested 
until  such  time,  without  alleging  the  ex- 
istence of  other  heirs,  and  without  show- 
ing why  an  earlier  objection  was  not  made. 
Salmon  v.  Rathjens,  152  Cal.  290;  92  Pac. 
733.  Leave  to  file  an  additional  answer, 
which  raises  an  issue  antagonistic  to  that 
made  by  the  complaint  and  the  defend- 
ant's original  answer,  is  a  matter  resting 
in  the  sound  discretion  of  the  court,  and 
refusal  to  allow  the  filing  of  such  answer 
will  not  be  interfered  with,  in  the  absence 
of  anything  tending  to  show  an  abuse  of 
discretion  (Harney  v.  Corcoran,  60  Cal. 
314) ;  but  where  it  clearly  appears  that 
a  proposed  amendment  is  in  furtherance 
of  justice,  and  is  seasonably  presented  at 
an  opportune  time,  a  refusal  to  allow  it  is 
an  abuse  of  the  discretion  committed  to 
the  trial  court  by  this  section.  San  Fran- 
cisco etc.  Home  Bldg.  Soc.  v.  Leonard,  17 
Cal.  App.  254;  119  Pac.  405.  It  is  not  an 
abuse  of  discretion  for  the  court  to  refuse 
to  allow  the  filing  of  an  answer  which 
changes  the  issue  already  made  in  the  case 
(Harney  v.  Corcoran,  60  Cal.  314);  or  to 
refuse  leave  to  amend,  in  the  absence  of 
a  specification  of  what  amendment  could 
be  made,  or  which  was  desired  to  be  made 
(Burling  v.  Newlands,  112  Cal.  476;  44 
Pac.  810);  or  to  refuse  to  allow  the  plain- 
tiff to  file  a  second  amended  complaint, 
where  the  transcript  does  not  show  that 
any  proposed  amendment  was  served  or 
presented,  or  that  the  notice  of  motion 
pointed  out  the  precise  amendment  which 
the  plaintiff  would  ask  leave  to  make  or 
to  file  (Martin  v.  Thompson,  62  Cal.  618; 
45  Am.  Rep.  663);  or  to  refuse  to  allow 
an  amendment  to  an  answer,  in  order  to 
plead  the  statute  of  limitations,  where  the 
application  therefor  was  not  made  until 
after  the  trial  and  submission  of  the  cause 
(San  Joaquin  Valley  Bank  v.  Dodge,  125 
Cal.  77;  57  Pac.  687);  or  to  refuse  to  per- 
mit the  plaintiff  to  amend  his  complaint, 
after  the  trial  had  been  in  progress  several 
days,  and  he  had  notice  that  the  defend- 
ant considered  his  complaint  defective, 
where  a  continuance  would  be  the  result 
(Hancock  v.  Hubbell,  71  Cal.  537;  12  Pac. 
618);  or  to  refuse  to  permit  the  defend- 
ant to  file  an  amended  answer,  where  the 
matters     of     amendment     are     sufficiently 


pleaded  in  the  original  answer  (Heilbron 
v.  Kings  River  etc.  Canal  Co.,  76  Cal.  11; 
17  Pac.  933);  nor  is  it  an  abuse  of  dis- 
cretion for  the  court  to  permit  the  de- 
fendant, at  the  close  of  the  trial,  so  to 
amend  his  answer  as  to  set  up  the  pen- 
dency of  another  action,  involving  the 
same  subject-matter  (Coubrough  v.  Adams, 
70  Cal.  374;  11  Pac.  634);  or  to  allow  an 
answer  to  be  amended,  in  order  to  admit 
written  evidence,  well  known  to  the  plain- 
tiff long  before  the  trial,  where  he  could 
not  be  surprised  by  its  production,  and 
where  its  admission  is  eminently  just,  to 
settle  the  rights  of  the  parties  upon  the 
merits  (Hart  v.  British  etc.  Ins.  Co.,  80 
Cal.  440;  22  Pac.  302);  or  to  allow  the 
correction  of  an  evident  mistake,  made  in 
describing  land  sought  to  be  recovered 
(Heilbron  v.  Heinlen,  72  Cal.  376;  14  Pac. 
24) ;  or  to  allow  an  amendment,  in  order 
to  change  an  action  seeking  to  recover  on 
a  contract  to  an  action  on  quantum  meruit 
(Cox  V.  McLaughlin,  76  Cal.  60;  9  Am.  St. 
Rep.  164;  18  Pac.  100);  and  the  court,  in 
its  discretion,  may  allow  a  motion  to  be 
renewed,  which  it  has  previously  denied. 
Mace  V.  O'Reilley,  70  Cal.  231;  11  Pac. 
721.  Where  the  court  allows  the  plain- 
tiff at  once  to  amend  his  complaint,  which 
is  done  in  a  few  lines,  there  is  no  abuse 
of  discretion  in  ruling  the  defendant  to 
an  immediate  answer,  which  is  made  at 
once,  briefly,  sufficiently,  and  without  any 
inconvenience:  such  action  cannot  be  con- 
strued as  a  surprise  sprung  upon  the  de- 
fendant. Ellen  V.  Lewison,  SS  Cal.  253;  26 
Pac.  109.  After  a  final  judgment  sustain- 
ing a  demurrer  to  a  complaint,  the  action 
of  the  court  in  setting  aside  the  judg- 
ment, and  permitting  the  plaintiff  to  file 
an  amendment  so  as  to  set  up  a  mistake, 
is  an  abuse  of  discretion,  where  the  mis- 
take was  apparent  upon  the  face  of  the 
instrument  sued  on,  and  was  known  to  the 
plaintiff  months  before  the  commencement 
of  the  action.  Weisenborn  v.  Neumann,  60 
Cal.  376. 

Amendments  should  be  in  furtherance  of 
justice.  The  court  has  power  to  allow 
amendments  at  any  stage  of  the  proceed- 
ings, in  the  advancement  of  justice;  and 
this  i>ower  should  be  liberally  exercised,  in 
order  to  secure  a  fair  and  sjieedy  trial  on 
the  merits,  where  the  adverse  party  will 
not  be  prejudiced.  Lestrade  v.  Barth,  17 
Cal.  285;  Hayden  v.  Havden,  46  Cal.  332; 
Walsh  V.  McKeen,  75  Cal.  519;  17  Pac. 
673;  Beronio  v.  Southern  Pacific  R.  R.  Co., 
86  Cal.  415;  21  Am.  St.  Rep.  57;  24  Pac. 
1093;  Hibernia  Sav.  &  L.  Soc.  v.  Jones, 
89  Cal.  507;  26  Pac.  1089;  Burns  v.  Scooffy, 
98  Cal.  271;  33  Pac.  86.  Leave  to  amend, 
when  addressed  to  the  discretion  of  the 
court,  should  be  liberally  granted,  in  order 
to  subserve  the  ends  of  justice  (Robert- 
son v.  Burrell,  110  Cal.  568;  42  Pac.  1086; 
McMillan  v.  Dana,  18  Cal.  339;  Kirby  v. 
Superior  Court,  68  Cal.  604;  10  Pac.  119),  . 


421 


AMENDMENTS — CHANGING  PARTIES  AND  CAUSE  OF  ACTION. 


H73 


and  to  secure  a  fair  and  speedy  trial  on 
the  merits  (Smith  v.  Yreka  Water  Co.,  14 
Cal.  201;  Hay  den  v.  Hay  den,  46  Cal.  332; 
Farmers'  Nat.  Gold  Bank  v.  Stover,  60  Cal. 
387),  where  the  adverse  party  will  not  be 
prejudieed.  Kirstein  v.  Madden,  38  Cal. 
158;  Wells  Farfi;o  &  Co.  v.  McCarthv,  5 
Cal.  App.  301;  90  Pae.  203.  The  power 
of  the  court  to  allow  amendments  to  be 
made  is  granted  in  general  terms,  unquali- 
fied by  anything  that  relates  to  the  juris- 
diction of  the  court;  the  mere  fact  that 
the  matters  to  be  amended  relate  to  the 
jurisdiction  of  the  court  does  not  affect 
the  power  of  the  court  to  allow  the  amend- 
ments (Contra  Costa  Coal  Mines  K.  R.  Co. 
V.  Moss,  23  Cal.  323);  nor  is  the  power  of 
the  court  to  allow  amendments  limited  by 
the  character  of  the  mistake  that  calls 
forth  its  exercise:  the  fact  that  the  pro- 
j)Osed  amendment  is  based  merely  upon 
a  mistake  of  law  is  immaterial.  Gould  v. 
Stafford,  101  Cal.  32;  3.5  Pac.  429.  The 
court  should  allow  an  amendment,  when- 
ever it  appears  that  a  party  has  committed 
a  mistake,  or  error  has  occurred  which 
could  not  have  been  reasonably  avoided. 
Smith  v.  Brown,  5  Cal.  118.  Amendments 
are  not  allowed  as  matter  of  course,  but 
only  upon  good  cause  shown  therefor. 
Hayden  v.  Hayden,  46  Cal.  332.  In  pass- 
ing upon  an  application  for  leave  to 
amend,  the  controlling  principle  must  be, 
whether  the  amendment  is  in  furtherance 
of  justice;  and  the  application  should  be 
refused  where  the  demand  is  unconscion- 
able. Daley  v.  Russ,  86  Cal.  114;  24  Pac. 
867.  The  court  has  no  power  to  strike 
out  allegations  that  will  deprive  a  party 
of  an  opportunity  to  try  the  question  of 
his  right  to  a  portion  of  the  property  in- 
volved in  the  action.  Howell  v.  Foster,  65 
Cal.  169;  3  Pac.  647.  A  motion  to  amend 
the  findings  of  fact,  conclusions  of  law, 
and  decree,  after  the  decree  has  been  en- 
tered in  the  case  is  irregular  practice:  the 
appropriate  proceeding  is  a  motion  for  a 
new  trial.  Pico  v.  Sepulveda,  66  Cal.  336; 
5  Pac.  515. 

Amendment  in  superior  court  of  plead- 
ings in  justice's  court.  Upon  an  appeal 
from  a  judgment  of  a  justice's  court,  on 
questions  of  law  and  fact,  the  superior 
court  may  allow  amendments  to  the  plead- 
ings, where  issues  of  fact  were  made  in 
the  court  below  (Ketchum  v.  Superior 
Court,  65  Cal.  494;  4  Pac.  492);  and,  also, 
where  the  action  is  certified  from  a  jus- 
tice's court  to  the  superior  court,  the  latter 
may  permit  amendments  showing  that  the 
title  to  or  the  possession  of  real  property 
is  involved  in  the  action,  and  that  there- 
fore the  superior  court  has  jurisdiction; 
or  it  may  permit  amendments  in  any  other 
respect,  to  the  same  extent  as  if  the  action 
had  been  commenced  therein.  Baker  v. 
Southern  California  Ry.  Co.,  114  Cal.  501; 
46  Pac.  604. 


Amendments  changing  parties.  A  party 
having  leave  to  amend  may  l)ring  in  new 
parties,  without  special  permission,  where 
they  are  j)roper  or  necessary  jjarties.  Lou- 
vall  v.  Gridley,  70  Cal.  507;  11  Pac.  777. 
The  court  may  allow  the  plaintiff  to  amend 
his  com[)laint,  by  adding  the  name  of  an- 
other party  plaintiff,  where  it  does  not 
affect  the  substantial  rights  of  the  par- 
ties (Polk  V.  Conin,  9  Cal.  56;  Blood  v. 
Fairbanks,  48  Cal.  171);  or  by  striking  out 
the  name  of  a  l>arty,  on  like  conditions 
(Tormey  v.  Pierce,  49  Cal.  306);  or  by 
striking  from  the  caption  of  the  complaint 
the  names  of  certain  defendants,  where 
the  other  defendants  are  not  prejudiced 
thereby.  Doane  v.  Houghton,  75  Cal.  360; 
17  Pac.  426.  Where  an  order  is  made  by 
the  court,  striking  names  from  the  com- 
plaint, it  is  not  necessary  to  file  an 
amended  complaint  in  the  names  of  the 
remaining  plaintiffs.  Tormey  v.  Pierce,  49 
Cal.  306.  A  complaint  against  a  person 
in  his  representative  capacity  cannot  be 
so  amended  as  to  state  a  cause  of  action 
against  him  personally:  such  amendment 
would  be  an  entire  change  of  the  party 
defendant,  and  present  a  different  suit. 
Stcrrett  v.  Barker,  119  Cal.  492;  51  Pac. 
695.  The  substitution  of  one  party  for 
another,  by  order  of  court,  is  not  such  an 
amendment  of  a  pleatling  as  is  required 
to  be  made  on  notice,  or  to  be  engrossed 
otherwise  than  to  be  entered  in  the  min- 
utes of  the  court;  an  order  of  court  allow- 
ing the  amendment  of  a  pleading,  by 
adding  or  striking  out  the  name  of  a 
party,  is  different  from  an  order  of  court 
substituting  a  party:  the  substitution  is 
made  by  the  court,  whereas  the  amend- 
ment is  allowed  to  be  made  by  the  party; 
an  amendment,  by  adding  or  striking  out 
the  name  of  a  party,  is  allowed  only  at 
the  instance  of  the  party  whose  pleading 
is  to  be  so  amended,  while  the  substitu- 
tion may  be  had  at  the  instance  of  either 
party;  the  addition  or  the  striking  out  of 
the  name  of  a  party  may  require  a  dif- 
ferent defense,  but  the  substitution  of  a 
party  necessitates  no  change  in  that  re- 
gard. Kittle  V.  Bellegarde,  86  Cal.  556; 
25  Pac.  55. 

Amendment  of  complaint,  changing  cause 
of  action.  A  complaint  cannot  be  so 
amended  as  to  introduce  a  new  cause  of 
action,  particularly  where  such  new  cause 
of  action  is  barred  by  the  statute  at  the 
time  of  the  proposed  amendment  (Peiser 
V.  Griflin,  125  Cal.  9;  57  Pac.  690);  nor 
is  the  plaintiff  at  liberty  to  strike  out  the 
entire  substance  and  prayer  of  his  com- 
plaint, and  insert  a  new  cause  of  action 
by  way  of  amendment  (Frost  v.  Witter, 
132  Ca"i.  421;  84  Am.  St.  Rep.  53;  64  Pac. 
705) ;  but  an  amendment  to  the  complaint 
may  be  allowed,  where  it  does  not  change 
the  nature  of  the  action,  or  state  an  en- 
tirely   new    cause    of    action,    although    it 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


422 


enlarges  or  adds  to  the  property  described 
in  the  original  complaint.  Bulwer  (Jousol. 
Mining  Co.  v.  tttaudard  Consol.  Mining 
Co.,  S3  Cal.  613;  23  Fac.  1109.  The  rule 
that  a  new  or  different  cause  of  action 
cannot  be  introduced  by  an  amendment 
must  be  accepted  with  some  qualification; 
for  the  most  common  kinds  of  amendments 
are  those  where  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause 
of  action;  therefore  all  that  can  be  re- 
quired is,  that  a  wholly  different  cause 
of  action  shall  not  be  introduced;  or  in 
other  words,  the  matter  of  amendment 
must  not  be  foreign  to  the  original  com- 
plaint. Frost  V.  Witter,  132  Cal.  421;  84 
Am.  St.  Eep.  53;  64  Pac.  705.  A  plaintiff 
should  not  be  allowed  to  amend  his  dec- 
laration so  as  to  change  the  proceeding 
from  an  action  ex  contractu  to  an  action 
ex  delicto  (Kamirez  v.  Murray,  5  Cal. 
222);  or  an  action  ex  delicto  to  an  action 
ex  contractu.  Hackett  v.  Bank  of  Cali- 
fornia, 57  Cal.  335.  Where  a  cause  of 
action  is  limited  to  a  claim  presented  to 
the  administrator,  and  objections  to  the 
complaint  cannot  be  met,  the  complaint 
cannot  be  amended  so  as  to  set  up  a  new 
cause  of  action,  upon  a  subsequent  condi- 
tional promise.  Morehouse  v.  Morehouse, 
140  Cal.  88;  73  Pac.  738.  An  amendment 
changing  only  the  remedy,  and  not  the 
cause  of  action,  is  permissible.  Frost  v. 
Witter,  132  Cal.  421;  84  Am.  St.  Eep.  53; 
64  Pac.  705.  A  cause  of  action  at  law 
may  be  so  amended  as  to  change  it  into 
a  suit  in  equity  (Walsh  v.  McKeen,  75  Cal. 
519;  17  Pac.  673),  where  the  claim,  as 
presented  to  the  executor,  and  upon  which 
it  is  based,  stated  all  the  facts  upon  which 
the  plaintiff  relied.  Porter  v.  Fillebrown, 
119  Cal.  235;  51  Pac.  322.  Under  proper 
circumstances,  the  trial  court  may  permit  a 
cross-complaint  in  an  action  to  be  amended 
so  as  to  set  up  fraud,  even  after  the  case 
has  been  submitted  for  decision.  .Jackson 
V.  Jackson,  94  Cal.  446;  29  Pac.  957.  In 
an  action  of  replevin,  it  is  not  error  for 
the  court  to  grant  leave  to  the  plaintiff 
to  amend,  after  the  evidence  is  closed,  or 
before  final  submission  of  the  case,  so  as 
•  to  transform  the  action  virtually  into  one 
of  trover,  charging  the  defendant  with 
converting  property,  and  claiming  dam- 
ages accordingly.  Henderson  v.  Hart,  122 
Cal.  332;  54  Pac.  1110.  Where  actual  dam- 
ages are  sought  to  be  recovered,  there  is 
no  change  of  the  cause  of  action,  if  the 
plaintiff  is  permitted  so  to  amend  as  to 
charge  that  the  acts  were  willful  and  wan- 
ton. Esrey  v.  Southern  Pacific  Co.,  103 
Cal.  541;  37  Pac.  500.  Where  slanderous 
words,  laid  in  the  original  complaint,  are 
not  qualified  or  altered  in  their  sense  or 
meaning  by  those  ]>roved  to  have  been 
used  by  the  defendant,  and  the  former 
are  clearly  embraced  in  the  latter,  and 
both  substantially  charge  to  the  same 
effect,  and  the  plaintiff  amendcil  his  com- 


plaint by  inserting  the  wo"rds  proved,  the 
cause  of  action  is  not  thereby  changed. 
Smullen  v.  Phillips,  92  Cal.  408;  28  Pac. 
442.  The  plaintiff  has  the  right  to  aban- 
don a  demand  made  in  his  complaint,  and 
to  strike  it  therefrom  by  way  of  amend- 
ment; and  if  the  complaint  still  states  a 
cause  of  action,  the  court  should  compel 
the  defendant  to  plead  to  it.  St.  Clair  v. 
San  Francisco  etc.  Ry.  Co.,  142  Cal.  647; 
76  Pac.  485.  An  amendment  to  a  com- 
l^laint  is  properly  allowed  to  be  filed, 
although  it  omits  one  of  the  causes  of  ac- 
tion set  forth  in  the  original  complaint: 
the  defendant  cannot  be  injured  by  the 
abandonment  of  a  cause  of  action  allowed 
against  him  (Coneannon  v.  Smith,  134  Cal. 
14;  66  Pac.  40);  but  where  the  amend- 
ment amounts  to  a  discontinuance  or 
abandonment  of  the  action  as  originally 
brought,  its  allowance  is  improper.  Hines 
v.  Ward,  121  Cal.  115;  53  Pac.  427.  The 
objection  to  an  amended  complaint,  alleged 
to  have  been  filed  by  leave  of  court,  can- 
not be  raised  upon  special  demurrer  to  the 
complaint,  but  only  on  motion  to  strike 
out.  Harvey  v.  Meigs,  17  Cal.  App.  353; 
119  Pac.  941. 

Amendment  after  demurrer  sustained. 
The  plaintiff  should  be  allowed  to  amend 
his  complaint,  where  a  demurrer  thereto 
has  been  sustained  (Lord  v.  Hopkins,  30 
Cal.  76) ;  but  it  is  not  error  to  refuse  per- 
mission to  amend,  where  it  is  apparent  that 
the  amendment  would  produce  no  valid 
cause  of  action  or  defense.  Gillan  v. 
Hutchinson,  16  Cal.  153;  Levinson  v. 
Schwartz,  22  Cal.  229;  Shepard  v.  McNeil, 
38  Cal.  72;  Ferrer  v.  Home  Mutual  Ins.  Co., 
47  Cal.  416.  An  amendment  of  the  com- 
plaint, after  the  filing  of  a  demurrer,  but 
before  the  hearing  thereon,  should  be  al- 
lowed, the  same  as  though  the  demurrer 
had  been  sustained  (Lord  v.  Hopkins,  30 
Cal.  76;  Gallagher  v.  Delauey,  10  Cal.  410; 
Thornton  v.  Borland,  12  Cal.  438;  Smith 
v.  Yreka  Water  Co.,  14  Cal.  201),  and  with- 
out prejudice  to  an  injunction  issued  on 
the  original  complaint.  Barber  v.  Rey- 
nolds, 33  Cal.  497.  After  the  overruling 
of  the  demurrer,  an  amendment  of  the 
complaint  may  be  allowed,  the  same  as 
though  the  demurrer  had  been  sustained. 
Phelan  v.  Supervisors,  9  Cal.  15.  On  sus- 
taining the  demurrer,  it  is  not  error  to 
fail  to  give  leave  to  amend,  where  the 
party  does  not  ask  for  such  leave,  or  for 
any  other  order  on  the  subject.  Smith  v 
Taylor,  82  Cal.  533;  23  Pac.  217;  San  Fran 
Cisco  Paving  Co.  v.  Fairfield,  134  Cal.  220 
66  Pac.  255;  Williamson  v.  Joyce,  140  Cal 
669;  74  Pac.  290.  An  order  sustaining  a 
demurrer,  without  leave  to  amend,  ordi- 
narily disposes  of  the  ease;  and,  in  the 
absence  of  any  directions  from  the  court, 
it  is  the  duty  of  the  clerk  to  enter  an 
appropriate  judgment.  Le  Breton  v.  Stan- 
ley Contracting  Co.,  15  Cal.  App.  429;  114 
Pac.  1028.     Where  the  defense  relied  upon 


423 


TIME  TO   AMEND AMENDMENT  TO  ANSWER. 


473 


in  tho  answer  is  invalitl,  it  is  not  error 
to  refuse  iierniissioii  to  amend,  after  judg- 
ment sustuininy  a  demurrer  to  tho  answer. 
Uillau  V.  ilutc^^hinsou,  10  Cal.  153. 

Time  to  amend.  A  motion  to  amend  is 
always  in  time,  where  it  immediately  fol- 
lows the  objection  to  tho  sufficiency  of  the 
comjdaint  or  answer:  a  motion  to  amend 
the  complaint  does  not  come  too  late  be- 
cause it  is  not  made  until  after  the  de- 
fendant's motion  for  a  nonsuit.  Valencia 
V.  Couch,  32  Cal.  339;  91  Am.  Dec.  589. 
The  court  has  discretion  to  limit  the  time 
in  which  an  amended  complaint  shall  be 
filed:  it  may  direct  that  it  be  filed  within 
twenty-four  hours,  where  the  plaintiff  is 
familiar  with  the  facts.  Bchultz  v.  Mc- 
Lean, 109  Cal.  437;  42  Pac.  557.  While  it 
is  not  often  necessary  to  amend  a  com- 
plaint after  the  case  has  been  submitted, 
yet  there  is  no  limitation  as  to  the  time, 
before  judgment  entered,  when  the  power 
of  the  court  ceases:  even  after  judgment 
the  power  may  be  exercised  for  the  relief 
of  a  party,  where  the  judgment  results 
from  mistake,  inadvertence,  surprise,  or 
excusable  neglect.  Lee  v.  Murphy,  119  Cal. 
364;  51  Pac.  549,  955.  Where  a  defend- 
ant, upon  the  plaintiff's  motion  for  judg- 
ment on  the  pleadings,  intends  to  abandon 
his  answer  and  substitute  another  in  its 
stead,  he  should  make  application  for  leave 
before  the  judgment  for  the  plaintiff  is 
ordered.  Felch  v.  Beaudry,  40  Cal.  439. 
It  is  proper  to  permit  an  answer  to  be 
amended  after  the  jury  is  impaneled, 
where  the  plaintiff  is  not  taken  by  sur- 
prise, or  does  not  suffer  any  injury.  Bero- 
nio  V.  Southern  Pacific  R.  R.  Co.,  86  Cal. 
415;  21  Am.  St.  Rep.  57;  24  Pac.  1093. 
After  a  judgment  is  reversed,  the  parties 
have,  in  the  court  below,  the  same  rights 
which  they  originally  had,  and  that  court 
has  discretion  to  permit  any  proper  amend- 
ment to  the  pleadings.  Heidt  v.  Minor, 
113  Cal.  385;  45  Pac.  700.  It  is  not  error 
for  the  court  to  refuse  to  allow  the  plain- 
tiff to  amend  his  complaint,  pending  a  mo- 
tion for  a  new  trial,  so  as  to  strike  out 
an  unnecessary  averment.  Gilliam  v. 
Brown,  126  Cal.  160;  58  Pac.  466.  The 
privilege  of  amending,  after  trial  of  the 
issue  of  law  raised  by  the  demurrer,  is 
not  one  of  right,  but  one  resting  in  the 
discretion  of  the  trial  court;  if  the  plain- 
tiff desires  to  amend  again,  he  should  ap- 
ply to  the  court  below,  and  if  refused, 
take  his  exception:  it  is  too  late  to  make 
the  point  for  the  first  time  on  appeal, 
when  nothing  in  the  record  shows  abuse 
of  discretion.  Schaake  v.  Eagle  Automatic 
Can  Co.,  135  Cal.  472;  63  Pac.  1025;  67 
Pac.  759;  Buckley  v.  Howe,  86  Cal.  596; 
25  Pac.  132;  Vanii  v.  Devoto,  10  Cal.  App. 
304;  101  Pac.  934.  In  an  action  to  re- 
cover personal  property,  no  judgment  can 
be  rendered  directing  the  return  of  the 
property  to  the  defendant,  or  in  his  favor 
for  its  value,  where  it  has  been  delivered 


to  the  plaintiff,  under  proceedings  in  the 
action,  until  the  defendant  asserts  his 
formal  claim  for  return  of  the  property, 
or  its  value,  in  the  answer;  and  there  can 
be  no  reason  why  the  record  should  not 
be  rounded,  and  a  formal  claim  inserted 
in  the  answer,  at  any  time  prior  to  the 
actual  entry  of  judgment.  Pico  v.  Pico, 
56  Cal.  453.  Where  there  is  unreasonable 
delay  in  presenting  an  amendment  to  a 
pleading,  the  court  may  properly  refuse 
to  allow  it;  and  where  there  is  no  intima- 
tion of  excuse  for  delay  in  presenting 
amendments  long  before  allowed,  until  the 
case  is  declared  substantially  closed,  they 
must  be  refused  when  presented.  Emeric 
V.  Alvarado,  90  Cal.  444;  27  Pac.  356.  Tho 
court  does  not  err  in  refusing  the  defend- 
ant leave  to  file  an  amended  answer  on  the 
eve  of  the  trial,  where  the  jury  is  in  at- 
tendance, and  the  cause  is  afterwards  tried 
as  if  all  the  matters  set  forth  in  the 
amended  answer  were  pleaded.  Shadburne 
v.  Daly,  70  Cal.  355;  18  Pac.  403.  Where 
a  case  has  been  at  issue  nearly  two  years, 
and  the  trial  has  commenced,  a  proposed 
amendment  to  the  answer,  tendering  new 
issues,  is  properly  refused.  Page  v.  Wil- 
liams, 54  Cal.  562.  The  court  cannot  allow 
an  amendment  to  the  complaint,  when 
more  than  one  year  has  elapsed  since  the 
rendition  and  entry  of  final  judgment: 
such  amendments  are  only  allowed  for  cleri- 
cal misprisions,  when  the  means  for  mak- 
ing them,  and  the  right  to  make  them, 
are  furnished  by  the  record  itself.  Kirby 
v.  Superior  Court,  08  Cal.  604;  10  Pac.  119. 
Where  a  party  admits,  in  his  answer,  a 
material  allegation,  and  the  case  is  tried 
and  judgment  rendered,  and  a  new  trial 
is  granted,  he  should  not  be  allowed  to 
amend  his  answer  by  changing  the  admis- 
sion into  a  denial.  Spanagel  v.  Reay,  47 
Cal.  608.  Where  a  defendant,  in  his  an- 
swer, virtually  admits  a  material  allega- 
tion of  the  complaint,  and  allows  such 
admission  to  stand  for  nearly  a  year,  and 
until  the  day  of  trial,  before  attempt- 
ing to  controvert  it,  the  refusal  of  the 
court  to  allow  a  proposed  amendment  to 
the  answer,  which  is  not  positive  in  its 
nature,  is  not  an  abuse  of  discretion.  Cook 
V.  Suburban  Realty  Co.,  20  Cal.  App.  538; 
129  Pac.  801.  After  a  motion  for  a  change 
of  place  of  trial,  the  court  cannot  enter- 
tain a  motion  or  make  an  order  for  tho 
amendment  of  the  complaint  in  the  matter 
of  parties,  any  more  than  in  the  matter 
of  substantive  averments;  and  if,  upon  the 
case  as  it  is  then  presenteil,  the  defendants 
are  entitled  to  have  their  motion  granted, 
they  are  entitled  to  have  all  judicial  action 
in  the  cause  determined  in  the  superior 
court  of  their  own  county.  Brady  v. 
Times  Mirror  Co.,  106  Cal.  50;  39  Pac.  209. 
Amendment  to  answer.  Amendments 
are  allowed  to  tho  defendant  with  much 
more  caution  than  to  the  plaintiff;  yet,  in 
a  proper    case,   and   with    the    spirit    of 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


424 


equity,  the  same  indulgence  will  be 
granted  to  the  defendant  as  to  the  plain- 
tiff. Connalley  v.  Peck,  3  Cal.  75;  Hooper 
V.  Wells  Fargo  &  Co.,  27  Cal.  11;  85  Am. 
Dec.  211;  Carpentier  v.  Brenham,  50  Cal. 
5-19.  The  plaintiff  cannot  claim  the  right 
to  enforce  a  judgment,  which,  through  the 
mistake  and  excusable  neglect  of  the  de- 
fendant, was  rendered  in  his  favor:  if  the 
defendant  has,  without  any  fault  on  his 
part,  been  prevented  from  presenting  his 
defense,  it  is  but  simple  justice  that  he 
should  have  an  opportunity  so  to  do. 
Melde  v.  Reynolds,  129  Cal.  "SOS;  61  Pac. 
932.  Where  a  defense  is  defectively 
pleaded,  and  the  evidence  thereunder  is 
objected  to,  the  defendant  should  be  al- 
lowed to  obviate  such  defect  by  amend- 
ment (Carpentier  v.  Small,  35  Cal.  346; 
Baker  v.  Southern  California  Ry.  Co.,  106 
Cal.  257;  46  Am.  St.  Rep.  237;  39  Pac. 
610) ;  but  a  proposed  amendment  to  an  an- 
swer, not  constituting  a  defense  to  the 
cause  of  action,  nor  the  proper  subject  of 
a  counterclaim,  is  properlv  refused.  Wig- 
more  V.  Buell,  116  Cal.  94;  47  Pac.  927. 
Where  the  answer  in  a  foreclosure  suit 
admits  the  due  execution  and  acknowledg- 
ment of  the  mortgage,  a  proposed  amend- 
ment, denying  such  acknowledgment,  is 
properly  refused:  an  amendment  to  the 
answer  should  not  be  allowed  so  as  to 
permit  a  merely  legal  defense  which  is  in- 
equitable (Bank  of  Woodland  v.  Heron, 
122  Cal.  107;  54  Pac.  537),  or  to  permit 
the  setting  up  of  a  defense  that  could  not 
be  made  under  the  original  answer.  Dorn 
V.  Baker,  96  Cal.  206;  31  Pac.  37;  Duff  v. 
Duff,  101  Cal.  1;  35  Pac.  437;  Ferrer  v. 
Home  Mutual  Ins.  Co.,  47  Cal.  416;  Edgar 
V.  Stevenson,  70  Cal.  286;  11  Pac.  704. 
The  court  may,  in  its  discretion,  allow  an 
amended  answer  to  be  filed,  omitting  a 
defense  stated  in  the  original  answer,  and 
averring  an  entirely  different  one:  the 
defendant  can  generally  set  up  as  many 
defenses  as  he  may  have.  Gould  v.  Staf- 
ford, 101  Cal.  32;  35  Pac.  429;  Carrie  v. 
Cloverdale  Banking  etc.  Co.,  90  Cal.  84;  27 
Pac.  58.  The  action  of  the  court  in  re- 
fusing to  allow  the  filing  of  an  amended 
answer,  except  to  the  portion  of  the  com- 
plaint amended,  is  not  error,  where  the 
remainder  of  the  proposed  answer  does  not 
differ,  in  any  essential,  from  the  answer 
on  file.  Hawthorne  v.  Siegel,  88  Cal.  159; 
22  Am.  St.  Rep.  291;  25  Pac.  1114.  It  is 
proper  to  deny  a  motion  to  file  an  amend- 
ment to  the  answer  so  as  to  set  up  a  judg- 
ment of  a  court  having  no  jurisdiction  of 
the  subject-matter  as  a  bar  to  the  action. 
Kirsch  v.  Smith,  64  Cal.  13;  27  Pac.  942. 
Where  the  complaint  is  verified,  and  the 
answer  tenders  no  material  issue,  and  is 
evasive,  not  verified,  nor  any  offer  made 
to  verify  it,  there  is  no  error  in  refusing 
to  allow  the  filing  of  an  amended  answer. 
Shepard  v.  McNeil,  38  Cal.  72.  The  court 
may  allow  a  defendant  bo  to  amend  his 


cross-complaint  as  to  aver  a  tender  to  the 
plaintiff,  before  suit,  and  the  deposit  of 
the  amount  in  question  in  court.  Crosby 
v.  Clark,  132  Cal.  1;  63  Pac.  1022.  An 
amendment,  which  changes  an  admission 
into  a  denial,  cannot  be  allowed;  but  where 
it  is  not  inconsistent  with  the  admission, 
but  is  in  harmony  with  it,  and  does  not 
negative  the  admission,  but  explains  it, 
it  may  be  allowed.  McPherson  v.  Weston, 
85  Cal.  90;  24  Pac.  733.  The  fact  that 
new  matter,  proposed  to  be  set  up  oy 
amendment,  was  known  to  the  defendant 
at  the  time  of  filing  the  original  answer, 
is  no  good  reason  why  the  amendment 
should  not  be  permitted.  Pierson  v.  Mc- 
Cahill,  22  Cal.  127;  Farmers'  Nat.  Gold 
Bank  v.  Stover,  60  Cal.  3S7;  Sharon  v. 
Sharon,  77  Cal.  102;  19  Pac.  230.  Where, 
in  an  action  for  divorce,  the  answer  does 
not  contain  any  prayer  for  affirmative  re- 
lief, the  defect  is  cured  by  an  amendment 
containing  such  praver.  Mayr  v.  Mayr, 
161  Cal.  134;  118  Pac.  546.  Where  a  judg- 
ment is  reversed,  and  remanded  for  a 
new  trial,  it  is  not  error  for  the  court, 
before  such  trial,  to  permit  the  defendant 
so  to  amend  his  answer  as  that  complete 
justice  may  be  done  between  the  parties; 
and  it  is  within  the  discretion  of  the  court 
to  allow  a  further  amendment  to  such  an- 
swer, during  the  second  trial,  where  the 
plaintiff  is  not  prejudiced  thereby.  Mc- 
Pherson V.  Weston,  85  Cal.  90;  24  Pac.  733. 
An  amended  answer,  filed  without  leave 
of  court,  after  issue  joined,  may  be 
stricken  from  the  files.  Worley  v.  Spreck- 
els  Bros.  Commercial  Co.,  163  Cal.  60;  124 
Pac.  697.  A  defendant  cannot  answer  an 
amended  comjdaint  by  the  allegation  that 
it  has  been  improperly  filed:  he  should 
present  an  objection  to  such  improper  filing 
of  the  amendment,  if  an  opportunity  offers, 
or  move  to  strike  the  amended  pleading 
from  the  files.  Wheeler  v.  West,  78  Cal. 
95;  20  Pac.  45.  The  order  granting  leave 
to  the  defendant  to  amend  his  answer  is 
no  part  of  the  judgment  roll,  and  is  not 
required  to  be  entered  thereon.  Segerstrom 
v.  Scott,  16  Cal.  App.  256;  116  Pac.  690. 

Amendment  setting  up  statute  of  limita- 
tions. It  was  formerly  the  rule,  that, 
where  the  defendant  failed  to  plead  the 
statute  of  limitations  at  the  proper  time, 
he  could  not  be  permitted  to  amend  his 
answer,  introducing  such  plea,  except  to 
further  the  ends  of  justice  (Cooke  v. 
Spears,  2  Cal.  409;  56  Am.  Dec.  348),  and 
that  the  court  did  not  err  in  refusing  to 
permit  the  defendant  to  set  up  the  bar  of 
the  statute  after  he  had  answered  to  the 
merits.  Stuart  v.  Lander,  16  Cal.  372;  76 
Am.  Dec.  538.  But  the  statutes  of  limita- 
tion have  become  rules  of  property,  and 
are  favored  in  law.  San  Diego  Realty  Co. 
v.  McGinn,  7  Cal.  App.  264;  94  Pac'  374. 
Where  an  amended  complaint,  curing  a  de- 
fect, does  not  state  a  new  or  different 
cause  of  action,  it  is  error  for  the  court 


425 


AMENDMENTS — EFFECT  OF — TO  CONFORM    TO    PROOF. 


§473 


to  refuse  to  permit  it  to  be  filed  on  the 
ground  that  a  new  cause  of  action,  then 
barred  by  the  statute,  is  therein  stated. 
Ruiz  V.  Santa  Barbara  Gas  etc.  Co.,  164 
Cal.  188;  128  Pac.  330.  A  new  cause  of 
action  cannot  be  introduced  into  the  com- 
plaint, under  the  guise  of  an  amendment, 
so  as  to  a,yoid  the  bar  of  the  statute. 
Nellis  V.  Pacific  Bank,  127  Cal.  166;  59  Pac. 
830.  Where  the  effect  of  the  proposed 
amendment  to  the  complaint  would  be,  not 
to  state  a  new  cause  of  action  against  the 
original  defendants,  but  only  an  original 
cause  of  action  against  a  new  defendant, 
the  latter  may  effectually  plead  the  bar  of 
the  statute.  Harrison  v.  McCormick,  122 
Cal.  651;  55  Pac.  592.  It  is  not  error  to 
permit  the  defendant,  in  his  amended 
answer,  to  plead  the  statute  of  limitations, 
where  its  consideration  did  not  enter  into 
the  judgment.  Hibernia  Sav.  &  L.  Soc.  v. 
Jones,  89  Cal.  507;  26  Pac.  1089.  The  stat- 
ute of  limitations  commences  to  run  from 
the  date  of  the  filing  of  an  amended  com- 
plaint stating  a  new  cause  of  action.  An- 
derson V.  Mayers,  50  Cal.  525.  A  failure 
to  find  upon  a  plea  of  the  statute  of  limi- 
tations is  not  material,  where  the  other 
facts  found  are  sufficient  to  support  the 
judgment.  Richter  v.  Henningsan,  110  Cal. 
530;  42  Pac.  1077.  The  question  of  the 
statute  of  limitations  cannot  be  raised 
upon  an  appeal  from  a  judgment  by  de- 
fault, taken  upon  a  judgment  roll  contain- 
ing Rcither  answer  nor  demurrer.  Hunter 
V.  Bryant,  98  Cal.  247;  33  Pac.  51. 

Amendment  to  conform  to  proof. 
Amendments  to  pleadings,  so  as  to  enable 
the  party  to  prove  all  the  facts  necessary 
to  his  cause  of  action  or  defense,  are 
favored,  subject  to  the  right  of  the  oppo- 
site party  to  a  continuance  in  case  of  sur- 
prise, or  subject  to  such  other  terms  as 
may  be  just.  Crosby  v.  Clark,  132  Cal. 
1;  63  Pac.  1022.  The  court  may,  in  fur- 
therance of  justice,  permit  the  defendant, 
even  after  the  evidence  is  closed,  to  deny, 
by  an  amended  answer,  certain  averments 
to  the  complaint  (Hibernia  Sav.  &  L.  Soc. 
V.  Jones,  89  Cal.  507;  26  Pac.  1089),  if  an 
opportunity  is  afforded  to  meet  the  amend- 
ment. Anglo-California  Bank  v.  Field,  154 
Cal.  513;  98  Pac.  267.  Where  a  complaint, 
praying  for  legal  relief,  states  facts  en- 
titling the  plaintiff  to  equitable  relief, 
the  court  nmy,  even  during  the  trial,  per- 
mit the  prayer  to  be  so  amended  as  to 
ask  for  the  appropriate  equitable  relief. 
Walsh  V.  McKeen,  75  Cal.  519;  17  Pac. 
673.  Where,  at  the  close  of  the  trial,  the 
plaintiff  declines  to  amend  his  complaint, 
upon  opportunity  offered  by  the  court  so 
to  do,  whereupon  the  court  announced 
that,  should  it  become  necessary,  it  would, 
of  its  own  motion,  amend  the  complaint 
to  make  it  conform  to  the  case  made,  and 
the  suit  is  decided  against  the  plaintiff, 
without  any  amendment  being  made,  the 
plaintiff  cannot  afterwards  be  allowed   to 


treat  the  complaint  as  amended.    Carpeu- 
tier  V.  Brenham,  50  Cal.  549. 

Effect  of  amended  upon  original  plead- 
ing. An  amended  pleading  supersedes  the 
original.  Barber  v.  iievnobls,  33  Cal.  497; 
Kelly  v.  McKibben,  54'Cal.  192;  Kentfield 
v.  Hayes,  57  Cal.  409;  Thompson  v.  John- 
son, 60  Cal.  292;  Mott  v.  Mott,  82  Cal.  413; 
22  Pac.  1140,  1142;  Schneider  v.  Brown, 
85  Cal.  205;  24  Pac.  715;  La  Societe 
Fran^aise  etc.  v.  Weidmann,  97  Cal.  507; 
32  Pac.  583;  Collins  v.  Scott,  100  Cal.  446; 
34  Pac.  10S5;  Miles  v.  Woodward,  115  Cal. 
308;  46  Pac.  1076;  Witter  v.  Bachman,  117 
Cal.  318;  49  Pac.  202;  Linott  v.  Rowland, 
119  Cal.  452;  51  Pac.  687;  Nellis  v.  Pacific 
Bank,  127  Cal.  166;  59  Pac.  830;  Welsh  v. 
Bardshar,  137  Cal.  154;  69  Pac.  977; 
Rooney  v.  Gray,  145  Cal.  753;  79  Pac.  523. 
After  a  pleading  has  been  amended,  admis- 
sions in  the  original  pleading  cannot  there- 
after be  introduced  in  evidence  against 
the  party  making  them.  Miles  v.  Wood- 
ward, 115  Cal.  308;  46  Pac.  1076.  Where 
an  amended  complaint  has  been  filed,  the 
original  ceases  to  perform  any  further 
function  as  a  pleading  (Barber  v.  Rey- 
nolds, 33  Cal.  497;  Kelly  v.  McKibben, 
54  Cal.  192;  Kentfield  v.  Hayes,  57  Cal. 
409;  Thompson  v.  Johnson,  60  Cal.  292; 
Schneider  v.  Brown,  85  Cal.  205;  24  Pac. 
715;  La  Societe  Fran^aise  etc.  v.  Weid- 
mann, 97  Cal.  507;  32  Pac.  583;  Collins  v. 
Scott,  100  Cal.  446;  34  Pac.  1085;  Miles  v. 
Woodward,  115  Cal.  308;  46  Pac.  1076); 
and  has  the  effect  to  vacate  the  default  of 
the  defendant  previously  entered.  Kelly 
v.  McKibben,  54  Cal.  192;  Schneider  v. 
Brown,  85  Cal.  205;  24  Pac.  715;  Linott  v. 
Rowland,  119  Cal.  452;  51  Pac.  687.  Where 
the  amendment  more  fully  sets  forth  the 
cause  of  action  defectively  alleged  in  the 
original  complaint,  it  merely  supersedes 
the  original,  and  takes  its  place,  without 
affecting  the  identity  of  the  original. 
Nellis  V.  Pacific  Bank,  127  Cal.  166;  59 
Pac.  830.  An  amendment  to  the  com- 
plaint, in  matter  of  substance,  after  entry 
of  default,  constitutes  a  new  complaint, 
and  has  the  effect  of  opening  the  default 
(Witter  V.  Bachman,  117  Cal.  318;  49  Pac. 
202) ;  it  only  supersedes  the  pleadings 
founded  upon  the  original  complaint:  it 
does  not  affect  a  cross-complaint,  or  the 
names  joined  thereon,  nor  does  the  cross- 
complaint  fall  with  the  fall  of  the  plain- 
tiff's complaint.  Mott  v.  Mott,  82  Cal.  413; 
22  Pac.  1140,  1142.  Where  issues  are 
joined  and  trial  had  upon  a  second 
amended  complaint,  errors  in  rulings  made 
upon  the  former  complaints  are  imma- 
terial. Rooney  V.  Gray,  145  Cal.  753;  79 
Pac.  523.  The  original  complaint  may  be 
considered  as  a  part  of  the  record  of  the 
case,  for  the  purpose  of  showing  when  the 
action  was  commenced,  and  whether  or 
not  a  new  or  different  cause  of  action  was 
introduced  by  the  amendment,  and  for  the 
determination  of  other  questions  that  may 


§473 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


426 


arise,  which  often  become  material  on  ap- 
peal; it  is  always  included  in  the  judg- 
ment roll.  Eedington  v.  Cornwell,  90  Cal. 
49;  27  Pac.  40;  Collins  v.  Scott,  100  Cal. 
446;  34  Pac.  1085.  An  amended  complaint, 
stating  no  new  cause  of  action,  relates 
back  to  the  time  of  the  commencement  of 
the  action,  for  the  purposes  of  the  statute 
of  limitations  (Smullen  v.  Phillips,  92  Cal. 
408;  28  Pac.  442;  White  v.  Soto,  82  Cal. 
654;  23  Pac.  210);  it  does  not  change  the 
time  of  the  running  of  the  statute  of 
limitations  beyond  the  date  of  the  filing 
of  the  original  complaint,  as  against  the 
original  defendant;  but  it  runs  to  the  date 
of  the  amendment  as  against  a  grantee  of 
the  defendant,  then  for  the  first  time  made 
a  party  (Frost  v.  Witter,  132  Cal.  421;  84 
Am.  St.  Rep.  53;  64  Pac.  705);  and,  though 
made  after  the  expiration  of  the  period 
of  limitation  for  the  action,  relates  back 
to  the  time  of  its  commencement.  Ruiz  v. 
Santa  Barbara  Gas  etc.  Co.,  164  Cal.  188; 
128  Pac.  330.  The  findings  need  only  refer 
to  the  complaint  as  amended.  Whitehead 
V.  Sweet,  126  Cal.  67;  58  Pac.  376.  Where 
reference  is  made  in  a  judgment  to  a  find- 
ing, and  in  the  finding  to  the  complaint, 
which  was  amended,  for  a  description  of 
property,  the  reference,  though  inexcus- 
ably circuitous,  is  not  ambiguous,  and 
unmistakably  refers  to  the  amended  com- 
plaint. Kelly  V.  McKibben,  54  Cal.  192. 
An  error  committed  in  overruling  a  de- 
murrer to  the  complaint  is  cured  by  a 
subsequent  amendment  to  the  complaint, 
although  an  action  at  law  is  changed  into 
a  suit  in  equity.  Walsh  v.  McKeen,  75  Cal. 
519;  17  Pac.  673.  Unless  new  matter  in- 
serted in  an  amended  complaint  is  entirely 
foreign  to  the  cause  of  action  in  the 
original  complaint,  the  question  will  not 
arise,  on  motion  to  strike  out,  whether  the 
amendments  in  the  amended  complaint  go 
further  than  is  allowed  by  the  code:  mat- 
ter contained  in  an  amended  complaint  is 
not  irrelevant  or  redundant  to  a  cause  of 
action  set  out  in  the  original  complaint  in 
the  same  action.  Nevada  Countj^  etc. 
Canal  Co.  v.  Kidd,  28  Cal.  673.  An 
amended  complaint,  not  allowed  to  be  filed, 
cannot  be  considered  as  any  part  of  the 
showing  on  which  a  temporary  injunction 
was  granted,  and  can  only  be  considered 
in  the  light  of  a  counter-affidavit,  on  a 
motion  to  dissolve  the  injunction.  Meetz 
V.  Mohr,  141  Cal.  667;  75  Pac.  298.  An 
amendment  as  to  a  matter  of  substance 
opens  up  a  default,  and  gives  the  defend- 
ant in  default  the  right  to  appear  and 
answer  (Thompson  v.  Johnson,  60  Cal. 
292);  but  an  amended  complaint  which 
brings  in  new  parties,  in  which  a  default- 
ing defendant  is  not  interested,  is  not  an 
amendment  in  matter  of  substance,  and 
does  not  open  up  the  default,  nor  re- 
quire the  service  of  the  amended  complaint 
upon  the  defaulting  party.  San  Diego 
Savings  Bank  v.  Goodsell,  137  Cal.  420;  70 


Pac.  299.  A  supplemental  complaint  is  not 
an  amendment  to  a  pleading,  as  it  leaves 
the  former  pleading  intact;  but  an  amend- 
ment to  a  pleading  makes  a  substituted 
pleading.  Giddings  v.  76  Land  and  Water 
Co.,  109  Cal.  116;  41  Pac.  788.  An 
amended  answer  supersedes  the  original, 
and  destroys  its  effect  as  a  pleading  (Gil- 
man  V.  Cosgrove,  22  Cal.  356;  Welsh  v. 
Bardshar,  137  Cal.  154;  69  Pac.  977; 
Evinger  v.  Moran,  14  Cal.  App.  328;  112 
Pac.  68) ;  and  all  questions  in  relation  to 
the  abandoned  answer  are  waived  by  filing 
the  amended  answer.  Kentfield  v.  Hayes, 
57  Cal.  409.  An  amended  answer,  improp- 
erly filed,  and  stricken  out  on  motion,  does 
not  supersede  the  original  answer,  nor 
can  the  court  render  judgment  against  the 
defendant,  in  such  a  case,  because  there 
is  no  pleading  on  file;  while  an  amended 
pleading  supersedes  the  original,  yet  it 
must  be  a  valid,  subsisting  pleading,  en- 
titled to  recognition  as  such,  in  the  place 
and  stead  of  that  which  it  supersedes;  if 
it  is  a  usurper,  and  exists  only  until  the 
court  can  strike  it  out  of  existence  because 
it  is  void  ab  initio,  it  fills  no  such  office, 
and  it  cannot  be  treated  as  void  because 
filed  without  leave  of  the  court.  Spooner 
V.  Cady,  4  Cal.  Unrep.  539;  36  Pac.  104. 
Where  an  amended  answer  is  filed  pending- 
a  motion  for  judgment  upon  the  pleadings, 
such  motion  cannot  be  determined  upon 
the  original  answer,  but  must  depend  upon 
the  sufficiency  of  the  amended  answer. 
Evinger  v.  Moran,  14  Cal.  App.  328;  112 
Pac.  68. 

Correction  of  matters  relating  to  bills 
of  exceptions.  Relief  may  be  granted  from 
a  default  in  failing  to  comply  with  the 
statute  in  presenting  a  bill  of  exceptions 
(People  v.  Everett,  8  Cal.  App.  430; 
97  Pac.  175);  or  in  failing  to  serve  a 
proposed  bill  of  exceptions  within  the 
prescribed  time,  where  objection  to  the  set- 
tlement is  made  on  that  ground.  Dernham 
V.  Bagley,  151  Cal.  216;  90  Pac,  543;  Sauer 
V.  Eagle  Brewing  Co.,  3  Cal.  App.  127;  84 
Pac.  425;  Pollitz  v.  Wickersham,  150  Cal. 
238;  88  Pac.  911.  The  judge  has  no  power 
to  extend  the  time  for  the  settlement  of 
a  bill  of  exceptions  beyond  thirty  days, 
without  the  consent  of  the  adverse  partj^; 
nor  can  he  grant  an  extension  after  the 
moving  party  has  made  default,  where  no 
excuse  for  delay  is  shown,  or  any  other 
facts  from  which  relief  could  be  claimed, 
or  any  application  made  to  obtain  such 
relief.  Cameron  v.  Areata  etc.  R.  R.  Co., 
129  Cal.  279;  61  Pac.  955.  A  mistake  of 
one  day,  by  the  plaintiff,  in  giving  eleven 
days'  notice  of  the  presentation  of  a  bill 
of  exceptions  for  settlement,  after  the  ser- 
vice of  proposed  amendments  thereto,  does 
not  make  the  settlement  thereof  erroneous, 
where  a  proper  case  for  relief,  under  this 
section,  was  established  by  affidavits,  and 
by  all  the  circumstances  of  the  case,  show- 
ing that    the  mistake  was    the  result  of 


427 


AMENDMENTS — JUDGMENTS — MOTION   TO  VACATE,   ETC. 


§473 


excusable  inadvertence  on  the  part  of  the 
plaintiff's  attorney.  Kaltschmidt  v.  Weber, 
145  Cal.  596;  79  Pac.  272.  A  bill  of  excep- 
tions may  be  corrected  (Merced  Bank  v. 
Price,  152  Cal.  697;  93  Pac.  866);  but  not 
after  it  is  prepared  and  settled,  pending 
an  appeal;  nor  can  the  record  be  amended 
by  the  appellate  court,  which  must  review 
the  order  upon  the  same  record  upon  which 
it  was  made.  Baker  v.  Borello,  131  Cal. 
615;  63  Pac.  914.  An  order  scttlinj:^  a  bill 
of  exceptions  on  motion  for  a  new  trial 
may  be  vacated.  Donnelly  v.  Tregaskis,  7 
Cal.  App.  317;  94  Pac.  383.  A  person  con- 
victed of  a  felony  is  not  entitled  to  notice 
of  a  proceeding  by  the  state  to  correct  an 
error  in  the  bill  of  exceptions,  where  the 
course  adopted  is  in  full  accord  with  the 
practice  recognized  b}^  this  section,  which 
does  not  require  notice  to  be  given  of  an 
application  for  the  correction  of  a  mistake 
in  the  record.  People  v.  Southern,  118  Cal. 
359;  50  Pac.  545.  The  supreme  court  will 
not  attempt  to  control  the  action  of  the 
court  below  in  refusing  to  settle  a  bill  of 
exceptions:  that  is  a  matter  within  the 
discretion  of  the  lower  court,  assuming 
that  it  has  power  to  grant  relief.  Stone- 
sifer  V.  Armstrong,  86  Cal.  594;  25  Pac. 
50.  On  appeal  from  an  order  refusing  to 
grant  relief  from  a  default,  in  failing  to 
serve  a  proposed  statement  on  appeal 
within  the  prescribed  time,  the  sole  ques- 
tion to  be  considered  is,  whether  the  trial 
court  abused  its  discretion  in  making  such 
order.  Utah-Nevada  Co.  v.  De  Lamar,  9 
Cal.   App.   759;    100  Pac.   884. 

Statement  on  motion  for  new  trial  or  on 
appeal.  Under  §  68  of  the  Practice  Act, 
the  court  had  power  to  cancel  the  certifi- 
cate settling  the  statement  on  appeal,  on 
becoming  satisfied  that  the  statement,  as 
settled,  was  erroneous,  and  that  the  cer- 
tificate was  made  through  inadvertence; 
provided  the  error  was  corrected,  either 
during  the  term  or  within  five  months 
thereafter.  Flynn  v.  Cottle,  47  Cal.  526.  A 
statement  on  motion  for  new  trial  may  be 
amended  to  speak  the  truth.  Estate  of 
Thomas,  155  Cal.  488;  101  Pac.  798.  In 
the  absence  of  any  showing  relieving  a 
party  from  default  in  serving  a  statement 
on  motion  for  a  new  trial,  such  statement 
cannot  be  considered  on  appeal.  King  v. 
Dugan,  150  Cal.  258;  88  Pac.  925. 

Motion  to  vacate,  or  motion  for  new 
trial.  Where  a  motion  for  a  new  trial  was 
brought  up  ex  parte  by  opposing  counsel, 
and,  without  argument  or  submission  by 
the  moving  party,  or  opportunity  to  his 
counsel  to  be  heard,  was,  by  the  court, 
inadvertently  and  improvidently  denied, 
without  consideration  of  the  merits,  the 
court  has  power,  upon  an  ex  parte  showing, 
by  the  affidavit  of  the  moving  party,  of 
facts  showing  inadvertence  and  improvi- 
dence, to  vacate  the  order  and  to  restore 
the  motion  to  the  calendar  for  argument. 
Whitney  v.   Superior  Court,   147   Cal.  536; 


82  Pac.  37.  After  the  court  has  rendered 
judgment  in  accordance  with  its  findings, 
neither  the  findings  nor  the  judgment  can 
be  change<l,  except  through  a  motion  for  a 
new  trial,  or  ujjon  a{)i)eal:  a  subsequent 
modification,  otherwise  made,  is  unauthor- 
ized (Knowlton  v.  Mackenzie,  110  Cal.  183; 
42  Pac.  580);  but  the  superior  court  has 
jurisdiction  to  vacate  a  judgment  entered 
by  it,  by  other  jiroceedings  than  a  motion 
for  a  new  trial;  and  if  error  has  been  com- 
mitted, it  can  only  be  corrected  on  a  direct 
appeal:  on  a  collateral  attack,  the  order 
vacating  the  judgment  will  be  deemed  to 
have  been  properly  made.  Storke  v.  Storke, 
111  Cal.  514;  44  Pac.  173.  A  superior 
court  can  set  aside  its  judgments,  only 
upon  application,  under  this  section,  within 
a  reasonable  time,  or  on  motion  for  a  new 
trial  (Fabretti  v.  Superior  Court,  77  Cal. 
305;  19  Pac.  481);  it  has  no  power  to 
modify  an  order  granting  a  new  trial,  by 
adding  conditions  not  therein  expressed, 
except  by  proceedings  under  this  section, 
or  by  an  entry  nunc  pro  tunc.  Frost  v. 
Los  Angeles  Ey.  Co.,  165  Cal.  365;  132 
Pac.  1043.  A  petition  for  a  rehearing  is 
a  proceeding  unknown  to  the  practice  of 
the  superior  court.  Fabretti  v.  Superior 
Court,  77  Cal.  305;  19  Pac.  481.  A  party 
cannot,  under  the  form  of  a  motion  to 
amend  the  judgment,  obtain  relief,  which, 
if  proper  to  be  granted  under  any  circum- 
stances, should  be  sought  through  a  motion 
for  a  new  trial.  Egan  v.  Egan,  90  Cal.  15; 
27  Pac.  22.  An  application  to  set  aside 
a  judgment  should  be  by  motion  for  a  new 
trial,  where  the  moving  party  is  repre- 
sented by  an  attorney  at  the  trial;  but  it 
is  properly  made  by  motion,  under  this 
section,  where  it  is  founded  on  the  facts 
that  the  moving  party  was  not  present  at 
the  trial,  either  in  person  or  by  attorney, 
and  that  he  had  no  notice  of  the  judgment 
until  the  lapse  of  the  term  at  which  it 
was  rendered.  McKinley  v.  Tuttle,  34  Cal. 
235.  Where  a  mortgagor  conveys  the 
mortgaged  premises,  and  the  mortgage  is 
foreclosed  in  an  action  in  which  summons 
is  served  on  the  mortgagor  alone,  the  plain- 
tiff cannot  obtain  relief  by  bringing  a  new 
action  against  the  mortgagor  and  the  gran- 
tee: he  must  seek  relief  by  a  motion  in 
the  original  action.  Aldrich  v.  Stephens, 
49  Cal.  676.  Where  a  party  moves  for  a 
new  trial,  it  will  be  presumed  that  such 
motion  is  pending  and  undetermined  at  the 
time  he  makes  a  subsequent  motion  to 
vacate  the  decree.  Johnson  v.  Keed,  125 
Cal.  74;  57  Pac.  680. 

Judgments  which  may  be  vacated.  The 
court  has  power  to  vacate  an  order  ap- 
pointing a  receiver,  made  before  the  trial, 
notwithstanding  the  pendency  of  a  motion 
for  a  new  trial  (Copper  Hill  Mining  Co.  v. 
Spencer,  25  Cal.  11;  People  v.  Loucks,  28 
Cal.  68) ;  and  to  vacate  an  improvident 
order  denying  a  motion  for  a  new  trial, 
and  to  restore  the  motion  to  the  calendar 


473 


MISTAKES    IN   PLEADINGS   AND   AMENDMENTS. 


428 


for  argument  (Whitney  v.  Superior  Court, 
147  Cal.  536;  82  Pae.  37);  and  to  vacate 
or  modify  an  order  setting  aside  a  home- 
stead, and  it  is  its  duty  to  hear  and  deter- 
mine the  matter  when  presented  to  it;  and 
mandamus  may  issue  to  compel  the  court  to 
hear  and  determine  the  motion  upon  its 
merits.  Cahill  v.  Superior  Court,  145  Cal. 
42;  78  Pac.  467.  An  order  admitting  an 
alien  to  citizenship  may  be  vacated,  upon 
a  proper  showing  made  within  time.  Tinn 
V.  United  States  District  Attorney,  148 
Cal.  773;  113  Am.  St.  Rep.  354;  84  Pac. 
152. 

Amendment  of  judgment.  The  superior 
court  has  power  to  amend  a  judgment,  at 
any  time,  as  to  immaterial  matters  occa- 
sioned by  inadvertence;  but  not  where 
the  amendment  would  materially  affect 
the  rights  of  litigants  objecting  thereto. 
Calkins  v.  Monroe,  17  Cal.  App.  324;  119 
Pac.  680.  A  judgment  cannot  be  amended 
where  there  is  no  element  of  mistake,  in- 
advertence, surprise,  or  excusable  neglect. 
Mann  v.  Mann,  6  Cal.  App.  610;  92  Pac. 
740.  To  entitle  a  party  to  an  order  amend- 
ing the  judgment,  order,  or  decree,  he  must 
establish  that  the  entry,  as  made,  does  not 
conform  to  what  the  court  ordered.  First 
Nat.  Bank  v.  Dusy,  110  Cal.  69;  42  Pac. 
476.  Where  the  defendant  was  sued  and 
served  and  judgment  entered  against  him 
under  the  same  name,  it  is  error  for  the 
court  afterwards,  without  notice  to  the 
defendant,  to  make  an  order,  on  the  motion 
of  the  plaintiff,  amending  the  judgment, 
by  altering  the  prspnomen  of  the  defend- 
ant: the  action,  in  such  case,  is  against 
one  person,  and  the  judgment  against  an- 
other, as,  prima  facie,  two  different  names 
signify  two  different  persons.  McISTally  v. 
Mott,  3  Cal.  235.  Where  an  amendment  is 
made  to  a  judgment  in  matter  of  sub- 
stance, whereby  it  is  made  to  grant  relief 
different  from  that  granted  when  it  was 
rendered,  it  is  absolutely  void  as  against 
a  party  having  no  notice  of  the  applica- 
tion to  amend  it;  and  where  a  proposed 
addition  to  the  judgment  is  a  mere  after- 
thought, and  forms  no  part  of  the 
judgment  as  originally  intended  and  pro- 
nounced, it  cannot  be  brought  in  by  way 
of  amendment.  Scamman  v.  Bonslett,  118 
Cal.  93;  62  Am.  St.  Rep.  226;  50  Pac.  272. 
Where  the  accident  of  entering  judgment 
against  both  defendants  happens  to  the 
prejudice  of  the  plaintiff,  and  this  error 
is  not  corrected  before  a  motion  to  set 
aside  is  made,  it  is  discretionary  with 
the  court  below  to  grant  the  application 
of  the  plaintiff  to  correct  the  judgment, 
and  its  action  in  denying  it  will  not  be 
disturbed  on  appeal.  Lewis  v.  Rigney  21 
Cal.  268. 

Judgment  nunc  pro  tunc.  The  court 
may,  at  any  time,  render  or  amend  a  judg- 
ment nunc  pro  tunc;  but  this  power  is 
confined  to  cases  where  the  record  dis- 
closes that  entry  on  the  minutes  does  not 


correctly  give  the  exact  judgment  of  the 
court.  Morrison  v.  Dapman,  3  Cal.  255. 
All  courts  have  the  power  to  correct  cleri- 
cal errors,  and  to  enter  a  judgment  nunc 
pro  tunc,  when  the  record  discloses  the 
error.  Swain  v.  Naglee,  19  Cal.  127. 
Where  the  clerk  has  neglected  to  enter  the 
judgment  for  two  years  after  its  rendition, 
the  supreme  court  will  direct  the  court  be- 
low to  cause  the  judgment  to  be  entered 
nunc  pro  tunc  as  of  the  time  it  should 
have  been  entered.  Cutting  Fruit  Packing 
Co.  V.  Canty,  141  Cal.  692;  75  Pac.  564. 
A  judge  at  chambers  has  no  power  to  make 
an  order  directing  the  clerk  to  enter  in 
the  minutes,  nunc  pro  tunc,  an  order  al- 
leged to  have  been  made  in  open  court, 
where  there  is  nothing  in  the  record  to 
show  whether  such  order  was  made.  Heg- 
eler  v.  Henckell,  27  Cal.  491.  The  object 
of  entering  judgments  and  decrees  as  of 
some  previous  date  is  to  supply  matters 
of  evidence  and  to  rectify  clerical  mis- 
prisions, but  not  to  enable  the  court  to 
correct  judicial  errors;  and  where  costs 
were  not  prayed  for,  and  the  judgment  is 
silent  as  to  them,  the  court  cannot  after- 
wards remedy  the  error  by  ordering  an 
amendment,  nunc  pro  tunc,  so  as  to  include 
costs.  Estate  of  Potter,  141  Cal.  424;  75 
Pac.  850. 

Proof  of  service  before  default  granted. 
The  fact,  and  not  the  proof,  of  service 
gives  the  court  jurisdiction;  and  lack  of 
jurisdiction  must  be  affirmatively  shown 
by  the  record.  Guardianship  of  Eikeren- 
kotter,  126  Cal.  54;  58  Pac.  370.  A  judg- 
ment by  default,  rendered  where  the  proof 
was  imperfect,  is  not  void,  if  service  was 
in  fact  made;  and  the  court  may  allow 
the  proof  of  service  to  be  amended  and 
filed  as  of  the  date  of  the  judgment.  Her- 
man V.  Santee,  103  Cal.  519;  42  Am.  St. 
Rep.  145;  37  Pac.  509;  Hibernia  Sav.  &  L. 
Soc.  V.  Matthai,  116  Cal.  424;  48  Pac.  370. 
Before  default  can  be  regularly  taken, 
there  must  be  positive  and  sufficient  evi- 
dence in  court  of  due  service:  no  substan- 
tial defect  in  that  respect  can  be  cured 
by  subsequent  knowledge  of  the  fact. 
Reinhart  v.  Lugo,  86  Cal.  395;  21  Am.  St. 
Rep.  52;  24  Pac.  1089.  After  service,  the 
court  acquires  jurisdiction,  by  reason  of 
the  defendant's  default,  to  enter  judgment 
against  him:  it  is  not  necessary  that  a 
formal  default  should  have  been  previ- 
ously entered  by  the  clerk,  nor  that  the 
summons,  with  proof  of  service,  should 
be  then  on  file  with  the  clerk;  nor  is  juris- 
diction lost  by  the  neglect  to  make  proof 
of  such  service  a  matter  of  record  before 
judgment;  and  where  the  court,  after  judg- 
ment, amends  the  record,  by  supplying 
proof  of  service,  it  is  as  effective  to  sup- 
port the  judgment  as  if  it  had  been  filed 
before  its  entry.  Hibernia  Sav.  &  L.  Soc. 
v.  Matthai,  116  Cal.  424;  48  Pac.  370. 
Where  there  has  been  neither  personal 
service   upon    nor   appearance   by   the   de- 


429 


DEFAULTS — PROOF  OF  SERVICE — DISCRETION  IN  VACATING. 


§473 


fendant,  a  judgment  by  default  is  utterly 
void.  Glidden  v.  Packard,  28  Cal.  649.  A 
finding  of  due  service  is  not  conclusive 
proof,  where  the  defendant  does  not  an- 
swer, as  against  the  evidence  of  service 
found  in  the  judgment  roll;  and  a  default 
judgment,  entered  on  a  void  certificate  of 
service,  is  void,  though  there  is  a  finding 
of  service,  because,  where  there  is  no 
answer,  the  summons,  with  proof  of  ser- 
vice, must  be  made  a  part  of  the  judgment 
roll.  Reinhart  v.  Lugo,  86  Cal.  395,  396; 
21  Am.  St.  Rep.  52;  24  Pac.  1089.  Where 
the  aflSdavit  of  service  by  mail  is  insuffi- 
cient, a  default  is  improperly  entered. 
Hogs  Back  Consol.  Mining  Co.  v.  New 
Basil  Consol.  Mining  Co.,  63  Cal.  121.  A 
judgment  by  default,  rendered  upon  an 
attempted  service  by  publication,  is  void 
for  want  of  jurisdiction,  where  the  judg- 
ment roll  does  not  contain  the  affidavit  for 
publication,  nor  the  order  of  court  direct- 
ing it.  People  V.  Greene,  74  Cal.  400;  5 
Am.  St.  Rep.  448;  16  Pac.  197.  An  affi- 
davit of  service,  which  does  not  show  that 
the  affiant  was  over  the  age  of  eighteen 
years  at  the  time  of  service,  is  insufficient 
to  support  a  judgment  by  default.  May- 
nard  v.  MacCrellish,  57  Cal.  355;  Howard 
V.  Galloway,  60  Cal.  10.  The  clerk  has 
no  authority  to  enter  the  default  of  a  de- 
fendant upon  a  void  certificate  of  service: 
his  act  in  doing  so  is  a  nullity.  Reinhart 
V.  Lugo,  86  Cal.  395;  21  Am.  St.  Rep.  52; 
24  Pac.  1089. 

Discretion  in  vacating  defaults.  In  the 
matter  of  opening  defaults,  much  is  con- 
fided to  the  discretion  of  the  court;  and 
where  the  circumstances  are  such  as  to 
lead  the  court  to  hesitate,  it  is  better  to 
resolve  the  doubt  in  tavor  of  the  appli- 
cation, so  as  to  secure  a  trial  and  judg- 
ment on  the  merits.  Wolff  &  Co.  v.  Cana- 
dian Pacific  Ry.  Co.,  123  Cal.  535;  56  Pac. 
453;  Merchants'  Ad-Sign  Co.  v.  Los  An- 
geles Bill  Posting  Co.,  128  Cal.  619;  61  Pac. 
277;  Petition  of  Tracey,  136  Cal.  385;  69 
Pac.  20;  Watson  v.  San  Francisco  etc. 
R.  R.  Co.,  41  Cal.  17;  Grady  v.  Donahoo, 
108  Cal.  211;  41  Pac.  41;  Banta  v.  Siller, 
121  Cal.  414;  53  Pac.  935.  The  granting 
or  refusing  of  an  application  to  set  aside 
a  default  or  a  default  judgment  will  not 
be  disturbed,  unless  a  clear  abuse  of  legal 
discretion  is  shown.  Haight  v.  Green,  19 
Cal.  113;  Woodward  v.  Backus,  20  Cal. 
137;  Reese  v.  Mahoney,  21  Cal.  305;  Howe 
v.  Independence  Consol.  Gold  etc.  Mining 
Co.,  29  Cal.  72;  Bailey  v.  Taaffe,  29  Cal. 
422;  Davis  v.  Rock  Creek  Lumber  etc. 
Mining  Co.,  55  Cal.  3.59;  36  Am.  Rep.  40; 
Freeman  v.  Brown,  55  Cal.  465;  Moore  v. 
Kellogg,  58  Cal.  385;  Dougherty  v.  Nevada 
Bank,  68  Cal.  275;  9  Pac.  112;  Hitchcock 
v.  McElrath.  69  Cal.  634;  11  Pac.  487; 
Garner  v.  Erlanger,  86  Cal.  60;  24  Pac. 
805;  Malone  v.  Big  Flat  Gravel  Mining 
Co.,  93  Cal.  384;  28  Pac.  1063;  Williani- 
Bon   v.   Cunii;  ings  Rock   Drill   Co.,   95   Cal. 


652;  30  Pac.  762;  Edwards  v.  Ilellings,  103 
Cal.  204;  37  Pac.  218;  Bell  v.  Peck,  104 
Cal.  35;  37  Pac.  760;  Harbaugh  v.  Honey 
Lake  Valley  Land  etc.  Co.,  109  Cal.  70; 
41  Pac.  792;  Smith  v.  Smith,  113  Cal.  268; 

45  Pac.  332;  Rauer  v.  Wolf,  115  Cal.  100; 

46  Pac.  902;  First  Nat.  Bank  v.  Nason,  115 
Cal.  626;  47  Pac.  595;  McGowan  v.  Krel- 
ing,  117  Cal.  31;  48  Pac.  980;  Morton  v. 
Morton,  117  Cal.  443;  49  Pac.  557;  Foley 
V.  Folev,  120  Cal.  33;  65  Am.  St.  Rep.  147; 
52  Pac.  122;  Brooks  v.  Johnson,  122  Cal. 
569;  55  Pac.  423;  Brittan  v.  Oakland  Bank, 

124  Cal.  282;  71  Am.  St.  Rep.  58;  57  Pac. 
84;    San   Joaquin    Valley   Bank    v.    Dodge, 

125  Cal.  77;  57  Pac.  687;  NicoU  v.  Weldon, 
130  Cal.  666;  63  Pac.  63;  Winchester  v. 
Black,  134  Cal.  125;  66  Pac.  197;  Palace 
Hardware  Co.  v.  Smith,  134  Cal.  381;  66 
Pac.  474;  Langford  v.  Langford,  136  Cal. 
507;  69  Pac.  235;  Grant  v.  McArthur,  137 
Cal.  270;   70  Pac.  88;  Moore  v.  Thompson, 

138  Cal.  23;  70  Pac.  930;  O'Brien  v.  Leach, 

139  Cal.  220;  96  Am.  St.  Rep.  105;  72  Pac. 
1004;  Alferitz  v.  Cahen,  145  Cal.  397;  78 
Pac.  878;  Estate  of  Sheppard,  149  Cal.  219; 
85  Pac.  312;  Webster  v.  Somer,  159  Cal. 
459;  114  Pac.  575;  Jergins  v.  Schenck,  162 
Cal.  747;  124  Pac.  426;  Lang  v.  Lillev,  164 
Cal.  294;  128  Pac.  1026;  Murphy  v."  Stel- 
ling,  1  Cal.  App.  95;  81  Pac.  730;  Pele- 
grinelli  v.  McCloud  River  Lumber  Co.,  1 
Cal.  App.  593;  82  Pac.  695;  Freeman  v. 
Brown,  5  Cal.  App.  516;  90  Pac.  970;  Wells 
Fargo  &  Co.  v.  McCarthy,  5  Cal.  App.  301; 

90  Pac.  203;  Yordi  v.  Yordi,  6  Cal.  App.  20; 

91  Pac.  348;  Bond  v.  Karma-Ajax  Mining 
Co.,  15  Cal.  App.  469;  115  Pac.  254;  Sheehy 
V.  Minaker,  16  Cal.  App.  437;  117  Pac.  616; 
Blumer  v.  Mayhew,  17  Cal.  App.  223;  119 
Pac.  202;  Behymer  v.  Superior  Court,  18 
Cal.  App.  464;  123  Pac.  340;  Redding  Gold 
etc.  Mining  Co.  v.  National  Surety  Co.,  18 
Cal.  App.  488;  123  Pac.  544;  Kearney  v. 
Palmer,  18  Cal.  App.  517;  123  Pac.  611; 
Smith  V.  Riverside  Groves  etc.  Co.,  19  Cal. 
App.  165;  124  Pac.  870;  Doherty  v.  Cali- 
fornia Navigation  etc.  Co.,  6  Cal.  App. 
131;  91  Pac.  419;  Oppenheimer  v.  Radke 
&  Co.,  165  Cal.  220;  131  Pac.  365.  The 
appellate  court  will  not  interfere  with  the 
action  of  the  trial  court  in  making  an 
order  setting  aside  a  default  and  judgment 
thereon,  and  permitting  the  defaulting 
party  to  answer,  where  there  is  a  sufficient 
affidavit  of  merits,  and  there  is  no  abuse 
of  discretion.  Reinhart  v.  Lugo,  86  Cal. 
395;  21  Am.  St.  Rep.  52;  24  Pac.  1089. 
Great  latitude  is  allowed  the  court  in  exer- 
cising its  discretion  in  setting  aside  a  de- 
fault, inadvertently  permitted  by  a  party 
having  a  substantial  defense.  Hitchcock  v. 
McElrath,  69  Cal.  634;  11  Pac.  487.  The 
discretion  of  the  court  in  granting  or  deny- 
ing a  motion  to  set  aside  a  default  or  a 
default  judgment  is  best  exercised  when 
it  tends  to  bring  about  a  judgment  on  the 
merits.  Pearson  v.  Drobaz  Fishing  Co.,  99 
Cal.  425;  34  Pac.  76;  San  Joaquin  Valley 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


430 


Bank  v.  Dodge,  125  Cal.  77;  57  Pac.  687; 
Nicoll  V.  Weldon,  130  Cal.  666;  63  Pac. 
63;  Mitchell  v.  California  etc.  S.  S.  Co.,  156 
Cal.  576;  105  Pac.  590;  McDougald  v. 
Hulet,  132  Cal.  154;  64  Pac.  278;  Andrus 
V.  Smith,  133  Cal.  78;  65  Pac.  320.  Where 
one  of  two  defendants  is  not  a  party  in 
interest,  and  relies  upon  the  promise  of 
his  co-defendant  to  save  him  harmless  in 
the  action,  and  a  default  is  entered  as  to 
both,  there  is  no  abuse  of  discretion  in 
opening  the  default  as  to  the  party  not  in 
interest  (Santa  Barbara  Live  Stock  etc. 
Co.  V.  Thompson,  46  Cal.  63);  nor  is  there 
an  abuse  of  discretion  in  setting  aside  a 
default,  where  a  stenographer  made  a 
mistake  in  writing  the  defendant's  cor- 
porate name  in  the  title  to  the  demurrer 
to  the  complaint,  and  the  defendant  moved 
promptly  to  have  the  default  set  aside. 
Will  V.  Lytle  Creek  Water  Co.,  100  Cal. 
344;  34  Pac.  830.  There  may  be  circum- 
stances in  which  it  is  i^roper  for  the  court 
to  grant  leave  to  move,  even  a  third  time, 
to  set  aside  a  default.  Hitchcock  v.  Mc- 
Elrath,  69  Cal.  634;  11  Pac.  487.  The  re- 
fusal of  the  court  to  vacate  a  judgment  by 
default  for  failure  to  answer  within  the 
time  limited,  is  not  an  abuse  of  discretion, 
in  the  absence  of  a  valid  stipulation  from 
the  plaintiff's  attorney  or  of  an  order  of 
the  court  extending  the  time  (Wylie  v. 
Sierra  Gold  Co.,  120  Cal.  485;  52  Pac.  809); 
nor  is  it  an  abuse  of  discretion  to  refuse 
to  set  aside  a  default  or  a  default  judg- 
ment, where  the  applicant  is  guilty  of  in- 
excusable neglect,  or  the  grounds  upon 
which  the  relief  is  sought  are  insufficient 
(Grant  v.  White,  57  Cal.  141;  Moore  v. 
Kellogg,  58  Cal.  385;  Youngman  v.  Ten- 
ner, 82  Cal.  611;  23  Pac.  120;  O'Connor  v. 
Ellmaker,  S3  Cal.  452;  23  Pac.  531;  Dusy 
v.  Prudom,  95  Cal.  646;  30  Pac.  798;  Wil- 
liamson V.  Cummings  Rock  Drill  Co.,  95 
Cal.  652;  30  Pac.  762;  Bradford  v.  Mc- 
Avoy,  99  Cal.  324;  33  Pac.  1091;  Edwards 
V.  Hellings,  103  Cal.  204;  37  Pac.  218;  Bell 
V.  Peck,  104  Cal.  35;  37  Pac.  766;  Whit- 
ney V.  Daggett,  108  Cal.  232;  41  Pac.  471; 
Shay  V.  Chicago  Clock  Co.,  Ill  Cal.  549;  44 
Pac.  237;  Rauer  v.  Wolf,  115  Cal.  100;  46 
Pac.  902;  Wylie  v.  Sierra  Gold  Co.,  120  Cal. 
485;  52  Pac.  809);  nor  is  it  an  abuse  of 
discretion  to  render  a  judgment  by  de- 
fault, or  to  refuse  a  motion  to  open  the 
default,  where  the  party  is  regularly 
served,  and  leaves  the  state  without  an- 
swering, and  his  attornevs  do  not  answer 
for  him.  Hancock  v.  Pico,  40  Cal.  153.  A 
motion  to  set  aside  a  .judgment  upon  the 
ground  that  there  ha^l  been  neither  an 
appearance  by  the  defendant  nor  service 
upon  him,  is  not  a  matter  of  discretion  in 
the  lower  court,  but  a  matter  of  pure  legal 
right,  not  arising  under  the  provisions  of 
this  section.  Hunter  v.  Bryant,  98  Cal. 
247;  33  Pac.  51.  It  is  the"  duty  of  the 
appellate  court  to  reverse  the  action  of 
the  trial  court,  where  it  is  obliged  to  say 


that,  in  setting  aside  a  default  and  vacat- 
ing a  judgment,  an  abuse  of  discretion 
was  involved.  Redding  Gold  etc.  Mining 
Co.  v.  National  Surety  Co.,  18  Cal.  App. 
488;  123  Pac.  544. 

When  default  may  be  set  aside.  The 
court  may  vacate  a  default  judgment,  ob- 
tained upon  a  defective  complaint,  and 
permit  the  plaintiff  to  amend  the  com- 
plaint. Lemon  v.  Hubbard,  10  Cal.  App. 
471;  102  Pac.  554.  A  default  judgment 
should  be  set  aside,  where  application  is 
promptly  made,  and  the  plaintiff  is  not 
injured,  and  where  there  was  no  neglect 
or  omission  on  the  part  of  the  defendant 
or  his  counsel,  but,  through  the  inadver- 
tence and  neglect  of  an  emjiloyee  of  the 
defendant,  the  papers  in  the  case  were  mis- 
laid on  the  removal  of  the  attorney  of 
record,  and  the  default  judgment  was  ren- 
dered before  the  defendant  knew  that  the 
case  was  set  for  trial  or  that  the  attorney 
had  ceased  to  attend  to  it.  Grady  v.  Dona- 
hoo,  108  Cal.  211;  41  Pac.  41.  Judgment 
by  default  against  a  defendant  should  be 
vacated,  where  he  was  misled  by  incor- 
rect information  of  the  time  of  the  com- 
mencement of  the  suit,  appearing  in  a 
regularly  issued  publication,  containing  in- 
formation of  court  proceedings,  and  relied 
upon  by  the  business  community.  Watson 
V.  San  Francisco  etc.  R.  R.  Co.,  41  Cal.  17. 
A  judgment  by  default  against  a  corpora- 
tion is  properly  vacated  for  excusable 
neglect,  where  its  agent  was  misled  by  the 
lawyer  "j^laintiff,  possibly  unintentionally, 
and  where  there  is  a  sufficient  affidavit  of 
merits.  Craig  v.  San  Bernardino  Invest- 
ment Co.,  101  Cal.  122;  35  Pac.  558. 
Where  the  trial  court  is  convinced  that 
the  plaintiff's  conduct,  as  to  agreements 
for  continuances,  after  default,  has  de- 
ceived the  defendant,  it  may  properly  set 
aside  a  judgment  by  default.  McGowan 
V.  Kreling,  117  Cal.  31;  48  Pac.  980.  A 
judgment  by  default  should  be  set  aside, 
where  the  defendants,  Misirjn  Indians,  are 
helpless  and  ignorant,  and  totally  unac- 
quainted with  the  English  language  and 
with  modes  of  judicial  proceedings,  and 
are  incapable  of  attending  to  their  inter- 
ests. Byrne  v.  Alas,  68  Cal.  479;  9  Pac. 
850.  Where  a  person  claiming  an  interest 
in  land  moves  to  set  aside  a  judgment  by 
default,  entered  against  it  in  an  action  to 
enforce  an  assessment,  on  the  ground  that 
he  knew  nothing  of  the  commencement  of 
the  action,  or  its  pendency,  or  of  the 
judgment  therein,  until  the  judgment  was 
rendered,  and  states  facts  constituting  a 
l)erfeet  defense,  the  court  may  vacate  such 
judgment  and  grant  permission  to  the  de- 
fendant to  answer  to  the  merits  of  the 
original  action.  Reclamation  District  v. 
Coghill,  56  Cal.  607.  An  application  to 
set  aside  a  judgment  by  default  may  be 
granted  to  enable  the  defendant,  who  was 
not  properly  served  with  summons,  to  plead 
the    statute    of   limitations    as    a    defense. 


431 


DEFAULTS — WHEN   MAY   BE,   AND   WHO   MAY   HAVE,   SET  ASIDE. 


§473 


San  Diego  Realty  Co.  v.  McGinn,  7  Cal. 
App.  264;  94  Pac.  374.  Where  a  demurrer 
is  still  on  file  ami  undisposed  of,  a  default 
entered  against  the  defendant  is  prema- 
ture, and  should  be  set  aside.  Tregambo 
V.  Comanche  Mill  etc.  Co.,  57  Cal.  501. 
A  judgment  by  default  will  be  reversed, 
where  the  court  strikes  out  an  answer,  filed 
in  time,  though  not  served  until  two  days 
afterwards.  Lybecker  v.  Murray,  58  Cal. 
186.  Where  a  demurrer  to  the  complaint 
was  overruled,  and  the  defendant  was 
given  time  to  answer,  but  the  record  does 
not  disclose  that  any  notice  of  the  order 
overruling  the  demurrer  was  served  upon 
the  defendant,  a  default  and  judgment 
entered  against  him  should  be  set  aside, 
upon  application  made  within  proper  time. 
Chamberlin  v.  Del  Norte  County,  77  Cal. 
150;  19  Pac.  271.  Doubt  as  to  the  grant- 
ing of  relief  under  this  section  should  be 
resolved  in  favor  of  the  application,  so  as 
to  secure  a  trial  upon  the  merits:  an  order 
granting  an  application  to  open  a  default 
will  be  looked  upon  more  favorably  upon 
appeal,  than  one  refusing  the  application 
(Jergins  v.  Schenck,  162  Cal.  747;  124  Pac. 
426),  since,  where  the  application  is  re- 
fused, the  defendant  may  be  deprived  of 
a  substantial  right,  whereas,  nothing  to  the 
contrary  being  shown,  it  may  be  assumed 
that  the  pl?intiff  will  be  able,  at  any  time, 
to  establish  his  cause  of  action.  Nicoll  v. 
Weldon,  130  Cal.  666;  63  Pac.  63.  The 
court  may,  at  any  time,  set  aside  a  default 
judgment,  entered  by  the  clerk,  where  it 
appears  on  the  judgment  roll  that  he  had 
no  power  to  enter  it  (Yv'^harton  v.  Harlan, 
€8  Cal.  422;  9  Pac.  727;  Willson  v.  Cleave- 
land,  30  Cal.  192),  even  although  the 
judgment,  if  it  be  for  money,  has  been 
satisfied.  Patterson  v.  Keeney,  165  Cal. 
465;  132  Pac.  1043.  The  clerk"  has  no  au- 
thority to  enter  a  judgment  by  default,  on 
notice  by  the  defendant  to  the  plaintiff 
that  he  will  move  before  the  court  commis- 
sioner to  dissolve  an  attachment  issued  in 
the  cause  (Glidden  v.  Packard,  28  Cal. 
649) ;  nor  has  he  jurisdiction  to  hear  the 
plaintiff's  application  for  default  and  judg- 
ment based  upon  his  affidavits  (Oliphant  v. 
Whitney,  34  Cal.  25);  nor  has  he  power 
to  determine  upon  what  papers  or  evidence 
the  court  acted  (Walsh  v.  Hutchings,  60 
Cal.  228) ;  nor  has  he  any  means  of  know- 
ing what  has  been  done,  beyond  what  is 
disclosed  by  his  files,  and  the  record  made 
in  the  regular  course  of  procedure;  and 
when  an  answer  is  filed  in  due  time,  he  has 
all  that  he  is  authorized  to  look  to,  in 
order  to  determine  whether  a  default  is 
due  or  not.  Oliphant  v.  Whitney,  34  Cal. 
25.  The  statutory  provision  that  the  clerk 
must  enter  judgment  "immediately"  after 
entering  default  is  merely  directory;  his 
failure  to  do  so  does  not  render  void  a 
judgment  subsequently  entered  upon  such 
default.  Edwards  v.  Hellings,  103  Cal. 
204;  37  Pac.  218.     It  is  not  error  for  the 


court  to  enter  a  default  and  judgment  for 
the  plaintiff,  where  a  frivolous  demurrer 
is  filed,  and  no  leave  to  file  an  answer  is 
requested.  Scale  v.  McLaughlin,  28  Cal. 
668.  A  motion  to  set  aside  a  judgment 
by  default  is  properly  denieil,  where  the 
defendant  was  duly  served,  but  held  the 
summons  and  complaint  more  than  ten 
days  without  examining  them,  believing 
that  the  suit  would  be  tried  in  another 
county,  where  the  cause  of  action  arose, 
and  when  he  finally  left  the  papers  with 
his  attorney,  the  time  for  answering  had 
expired.  Garner  v.  Erlauger,  86  Cal.  60; 
24  Pac.  805.  It  is  not  error  to  refuse  to 
set  aside  a  default  for  mere  irregularity 
in  the  service  of  summons,  or  for  a  de- 
fective return.  Dorente  v.  Sullivan,  7  Cal. 
279.  A  clerical  error,  or  a  mere  slip  of 
the  pen,  is  not  ground  for  vacating  a  judg- 
ment by  default,  on  the  ground  of  irregu- 
larity in  service.  Alexander  v.  McDow, 
108  Cal.  25;  41  Pac.  24.  An  order  setting 
aside  a  default  and  judgment,  and  restor- 
ing an  answer  to  the  files,  forms  no  part 
of  the  judgment  roll.  Von  Schmidt  v.  Von 
Schmidt,  104  Cal.  547;  38  Pac.  361. 

Who  may  have  default  set  aside.  The 
plaintiff  may  move  to  set  aside  a  default, 
although  such  default  was  entered  at  his 
instance.  Thompson  v.  Alford,  128  Cal. 
227;  60  Pac.  686.  Where  a  tenant  in  pos- 
session has,  through  neglect  or  by  design, 
permitted  a  default  to  be  entered  against 
him,  the  landlord  may,  upon  a  proper  show- 
ing, moving  in  the  name  of  the  tenant, 
have  such  default  set  aside.  Dimick  v. 
Deringer,  32  Cal.  488.  The  successor  in 
interest  to  property  involved  in  the  action 
may  move  to  set  aside  a  default  judgment 
entered  against  his  grantor.  People  v.  Mul- 
lan,  65  Cal.  396;  4  Pac.  348.  Where  the 
defendant  received  no  notice  of  the  order 
dismissing  his  demurrer,  and  the  court  did 
not  refuse  leave  to  answer,  the  defendant 
is  not  deprived  of  his  right  to  move  that 
the  default  be  set  aside  by  the  lapse  of  the 
prescribed  time  before  the  entry  of  de- 
fault. Winchester  v.  Black,  134  Cal.  125; 
66  Pac.  197.  Where  the  judgment  against 
a  defendant  and  his  wife  is  vacated,  on 
her  motion,  so  far  as  her  rights  are  con- 
cerned, the  plaintiff  may  have  her  default 
set  aside,  and  the  time  fixed  in  which  to 
answer,  where  there  is  nothing  in  the 
record  to  show  that  her  rights  would,  in 
any  respect,  be  impaired  thereby.  Thomii- 
son  v.  Alford,  135  Cal.  52;  66"  Pac.  983. 
This  section  expressly  extends  to  the  "legal 
representative"  of  a  deceased  defendant 
the  right  "to  answer  to  the  merits  of  the 
action."  Davidson  v.  All  Persons,  18  Cal. 
App.  723;  124  Pac.  570.  The  legal  rep- 
resentative of  a  party  to  an  action  is 
entitled  to  relief,  upon  such  terms  as  may 
be  just,  from  a  default  taken  against  him 
through  mistake,  inadvertence,  surprise,  or 
excusable  neglect.  Plummer  v.  Brown,  64 
Cal.  429;   1  Pac.  703.     Where  a  judgment 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


432 


quieting  title  against  an  administrator  is 
rendered  in  favor  of  the  holder  of  a  tax 
deed,  a  denial  of  the  application  of  the 
heirs  to  set  aside  the  judgment  and  to 
permit  them  to  answer  will  not  be  dis- 
turbed, where  no  abuse  of  discretion  is 
shown.  Cass  v.  Hutton,  155  Cal.  103;  99 
Pac.  493. 

When  judgments  vacated.  Power  is  con- 
ferred upon  courts  of  record,  by  this  sec- 
tion, to  relieve  from  a  judgment  taken 
through  surprise,  excusable  neglect,  etc.; 
and  by  §  859,  post,  the  power  to  grant  such 
relief  is  expressly  given  to  justices'  courts. 
Hubbard  v.  Superior  Court,  9  Cal.  App. 
166;  98  Pac.  394.  This  section  was  not 
designed  for  the  relief  of  persons  not 
served  with  summons,  who  permit  a  judg- 
ment to  be  taken  against  them  with  their 
full  knowledge  and  consent.  Boland  v.  All 
Persons,  160  Cal.  486;  117  Pac.  547.  A 
judgment  entered  without  findings  is  not 
within  the  purview  of  this  section.  Sav- 
ings and  Loan  Society  v.  Thorne,  67  Cal. 
53;  7  Pac.  36.  Courts  are  always  inclined 
to  be  liberal  in  relieving  parties  laboring 
under  disabilities  from  the  effect  of  de- 
crees which  appear  to  be  unjust,  and  which 
deprive  them  of  their  rights:  the  lower 
court  is  warranted  in  vacating  such  de- 
crees, upon  diligent  application  and  a  rea- 
sonable showing.  Estate  of  Ross,  140  Cal. 
282;  73  Pac.  976.  A  mere  error  or  irregu- 
larity in  making  out  a  bill  of  costs  does 
not  invalidate  a  judgment  otherwise  cor- 
rect. Castle  V.  Bader,  23  Cal.  75.  Where 
an  answer  is  improperly  stricken  out,  a 
motion,  after  decree,  to  vacate  the  judg- 
ment, to  reinstate  the  answer,  and  to  re- 
store the  cause  to  the  calendar  for  trial, 
should  be  granted.  Bernheim  v.  Cerf,  123 
Cal.  170;  55  Pac.  759.  Where  a  motion  to 
vacate  a  judgment  for  mistake  has  been 
denied  under  this  section,  the  sole  ques- 
tion upon  an  appeal  from  the  order  of 
denial  is,  whether  the  trial  court  abused 
its  discretion.  Alferitz  v.  Cahen,  145  Cal. 
397;  78  Pac.  878.  An  order  of  the  superior 
court,  attempting  to  set  aside  its  judgment 
affirming  a  judgment  of  a  justice's  court, 
upon  an  appeal  on  questions  of  law  alone, 
upon  a  petition  for  a  rehearing,  is  coram 
non  judice,  and  void.  Fabretti  v.  Superior 
Court,  77  Cal.  305;  19  Pae.  481. 

Who  may  have  judgment  vacated.  Only 
a  party  to  the  action,  or  his  legal  repre- 
sentative, can  move  to  set  aside  a  judg- 
ment. Smith  V.  Roberts,  1  Cal.  App.  148; 
81  Pac.  1026.  Where  a  motion  is  made  by 
the  legal  representative  of  a  plaintiff,  to 
set  aside  a  judgment  taken  against  him, 
on  the  ground  of  mistake,  inadvertence, 
surprise,  or  excusable  neglect,  he  must 
show  such  a  state  of  facts  as  would  sup- 
I)ort  a  similar  application  by  the  plaintiff. 
Corwin  v.  Bensley,  43  Cal.  253.  One  not 
a  party,  nor  the  legal  representative  of  a 
party,  to  an  action  brought  to  decide  con- 
flicting claims;   to  jjurchase  state  lands,  is 


not  entitled,  though  a  settler  on  the  land, 
to  have  a  judgment  therein  set  aside  so  as 
to  allow  him  to  intervene.  Smith  v.  Rob- 
erts, 1  Cal.  App.  148;  81  Pac.  1026.  The 
purchaser  of  all  the  jaroperty  involved  in 
an  action  of  partition  is  the  legal  repre- 
sentative of  all  the  nominal  parties  to  the 
action,  within  the  meaning  of  this  sec- 
tion; and,  under  §  385,  ante,  he  has  control 
of  the  action,  and  has  the  right  to  move, 
in  the  appellate  court,  to  recall  a  remit- 
titur obtained  by  fraud  of  nominal  par- 
ties to  the  record,  in  taking  steps  adverse 
to  his  rights.  Trumpler  v.  Trumpler,  123 
Cal.  248;  55  Pac.  1008.  Whether  the  judg- 
ment is  either  for  or  against  a  party,  he 
niaj^  pray  for  relief,  under  this  section. 
Brackett  v.  Banegas,  99  Cal.  623;  34  Pac. 
344.  Where  the  court  orders  notice  to 
be  given  of  a  decree  terminating  a  life 
estate,  a  party  not  personally  served,  who 
moves  promptly,  and  within  six  months 
thereafter,  to  vacate  such  decree,  is  en- 
titled to  relief.  Petition  of  Tracey,  136 
Cal.  385;  69  Pac.  20.  A  judgment  cannot 
be  vacated  upon  the  application  of  a  de- 
fendant not  affected  thereby.  Churchill  v. 
More,  7  Cal.  App.  767,  771;  96  Pac.  108. 

Showing  necessary  to  vacate  judgment. 
A  judgment  by  default  cannot  be  vacated, 
under  this  section,  without  a  suflBcient 
showing  (Ritter  v.  Braash,  11  Cal.  App. 
258;  104  Pac.  592);  nor  can  a  decree,  valid 
on  its  face,  be  set  aside  without  notice 
and  a  hearing.  Andreen  v.  Andreen,  15 
Cal.  App.  728;  115  Pac.  761.  Nor  can  a 
default  and  judgment,  regularly'  entered 
against  a  litigant,  be  set  aside  and 
vacated,  except  upon  a  showing  that  they 
were  taken  against  him  through  his  mis- 
take, inadvertence,  surprise,  or  excusable 
neglect.  Redding  etc.  Mining  Co.  v.  Na- 
tional Suretv  Co.,  18  Cal.  App.  488;  123 
Pac.  544;  Harlan  v.  Smith,  6  Cal.  173; 
Chase  v.  Swain,  9  Cal.  130;  People  v. 
O'Connell,  23  Cal.  281;  Bailey  v.  Taaffe, 
29  Cal.  422.  A  motion  to  set  aside  a  judg- 
ment is  properly  denied,  where  summons 
was  personally  served,  and  the  affidavit 
makes  no  averment  of  mistake,  surprise 
or  inadvertence,  or  any  attempt  to  account 
for  the  failure  to  answer  within  the  pre- 
scribed time.  Harlan  v.  Smith,  6  Cal.  173. 
Where  a  non-resident  has  not  been  per- 
sonally served  within  this  state,  the  court 
has  power,  on  motion,  where  the  return 
of  service  is  shown  to  be  false,  to  quash 
the  service  of  summons  and  vacate  the 
judgment;  and  any  fact  going  to  show 
the  invalidity  of  the  judgment  may  be 
presented  at  the  hearing  of  the  motion. 
Norton  v.  Atchison  etc.  R.  R.  Co.,  97  Cal. 
388;  33  Am.  St.  Rep.  19S;  30  Pac'  585;  32 
Pac.  452.  Application  to  vacate  an  order 
sustaining  a  demurrer  may  be  made,  with- 
out any  showing  of  mistake,  inadvertence, 
or  excusable  neglect.  De  la  Beckwith  v. 
Superior  Court,  146  Cal.  496;  80  Pac.  717. 
On  a  motion  to  set  aside  a  default  judg- 


433 


JUDGMENTS — VACATING — SHOWING AFFIDAVIT  OF  MERITS. 


§473 


inent,  the  defendant  may  waive  an  objec- 
tion for  want  of  service  of  summons,  and 
still  have  relief,  under  this  section,  on 
the  ground  of  mistake  and  inadvertence. 
Martz  V.  American  Bran  Gold  Co.,  IGl 
Cal.  531;  119  Pac.  909.  From  the  fact 
that  the  relief  to  be  afforded  is  the  privi- 
lege of  answering  "to  the  merits  of  the 
original  action,"  the  condition  is  implied, 
that  the  defendant  must  have  a  suflieient 
answer  to  present,  that  is,  he  must  have 
a  good  defense  to  the  action  on  the  merits: 
this  being  one  of  the  conditions  of  the 
statute,  the  defendant  must  show  that  such 
defense  exists.  Gray  v.  Lawlor,  151  Cal. 
356;  90  Pac.  691;  Haub  v.  Leggett,  160 
Cal.  491;  117  Pac.  556.  There  is  no  error 
in  denying  the  defendant's  motion  to  set 
aside  a  judgment  against  him,  where  there 
is  an  averment  that  gave  the  court  juris- 
diction, and  the  defendant  was  informed 
of  the  fact,  made  no  objection,  took  no 
steps  to  vacate  it,  and  did  not  have  a 
meritorious  defense.  Scale  v.  McLaughlin, 
28  Cal.  668.  A  party  seeking  to  have  a 
judgment  set  aside  on  the  ground  of  acci- 
dent or  surprise  must  also  show  that  he 
has  been  injured,  and  that  a  different  re- 
sult might  be  reached  in  case  of  another 
trial,  should  the  judgment  be  set  aside  and 
a  new  trial  granted.  McGuire  v.  Drew,  83 
Cal.  225;  23  Pac.  312.  Where  a  default 
judgment  is  void  because  there  is  no  proof 
of  service,  but,  at  the  hearing  of  the  mo- 
tion to  vacate,  proof  is  made  of  the  fact 
of  service  at  the  time  mentioned  in  the 
void  certificate  of  service,  the  court  is  not 
justified  in  refusing  the  motion.  Eeinhart 
v.  Lugo,  86  Cal.  395;  21  Am.  St.  Eep.  52; 
24  Pac.  1089.  A  defendant  corporation 
is  entitled  to  have  a  judgment  against  it 
vacated,  upon  a  showing  that  it  was  ren- 
dered without  actual  service  of  summons 
upon  any  officer  or  agent  of  the  corj^ora- 
tion,  and  without  actual  knowledge,  on  its 
part,  of  the  pendency  of  the  action.  Martz 
v.  American  Bran  Gold  Co.,  161  Cal.  531; 
119  Pac.  909.  A  default  for  failure  to 
answer  is  improjierly  set  aside,  where  there 
was  no  service  of  the  moving  papers,  and 
the  application  was  heard  and  decided  in 
the  absence  of  the  plaintiff's  attorney,  who 
had  no  notice  of  the  motion,  and  no  reason- 
able excuse  was  given  for  the  failure  to 
answer  within  the  proper  time.  Reilly  v. 
Euddock,  41  Cal.  312.  The  court  will  hear 
counter-affidavits  as  to  an  excuse  for  per- 
mitting the  default.  Douglass  v.  Todd.  96 
Cal.  655;  31  Am.  St.  Eep.  247;  31  Pac.  623. 
The  motion  to  set  aside  a  default,  and 
to  fix  a  time  for  the  defendant  to  plead, 
does  not  presumptively  involve  the  de- 
termination of  any  facts  presented  on  a 
motion  to  vacate  the  judgment:  the  two 
motions  are  separate  and  distinct  from 
each  other,  depend  upon  distinct  record, 
and  seek  flistinct  relief.  Thompson  v.  Al- 
ford,  128  Cal.  227;  60  Pac.  686.  A  judg- 
ment by  default,  reciting  the  fact  that  the  . 
1  Fair. — 28 


defendant  was  duly  served,  cannot  be  set 
aside  on  motion,  where  there  is  no  evi- 
dence, either  in  or  dehors  the  reconl,  tend- 
ing to  rebut  the  recitals  in  the  judgment. 
Whitney  v.  Daggett,  108  Cal.  232;  41  Pac. 
471.  An  application  to  set  aside  a  default 
judgment,  which  exi)rcssly  refers  to  and 
makes  all  the  pai)crs  and  proceedings  on 
file  or  of  record  part  of  the  moving  j>apers, 
and  which  is  an  amendment  of  a  former 
application,  will  be  so  reganled  for  the 
purpose  of  determining  the  question  of 
diligence.  Wolff  v.  Canadian  Pacific  Ry. 
Co.,  89  Cal.  332;  26  Pac.  825.  Where  there 
is  a  perfect  affidavit  of  merits,  and  the 
default  is  properly  excused,  the  judgment 
may  be  set  aside,  to  permit  the  plea  of 
discharge  in  insolvency  or  bankruptcy,, 
w^here  the  application  contains  a  state- 
ment of  discharge  in  iusolvencv.  Tuttle 
V.  Scott,  119  Cal.'5S6;  51  Pac.  849.  Where 
the  motion  to  vacate  a  judgment  by  de- 
fault is  made  on  the  ground  that  the  court 
had  no  jurisdiction  to  render  any  judg- 
ment, by  reason  of  failure  to  serve  the 
summons,  the  question  whether  the  facts 
stated  in  the  application  would  constitute 
a  defense  to  the  action,  is  immaterial. 
Mott  Iron  Works  v.  West  Coast  Plumbing 
etc.  Co.,  113  Cal.  341;  45  Pac.  683.  Where 
a  defendant  seeks  relief,  under  this  sec- 
tion, from  a  default  judgment  in  an  action 
to  quiet  title  under  the  McEnerney  Act, 
the  affidavit  on  the  motion,  stating  facts 
sufficient  to  show  that  the  claimant  had 
a  "valid  adverse  interest"  in  the  prop- 
erty involved  in  the  action  when  it  was 
begun,  is  sufficient.  Davidson  v.  All  Per- 
sons, 18  Cal.  App.  723;  124  Pac.  570. 
Where  the  defendant  has  actual  notice  of 
the  time  and  place  of  trial,  and  that  no 
further  postponement  would  be  agreed  to 
by  the  opposing  party,  and  the  case  is 
tried  in  his  absence,  he  is  not  entitled  to 
have  the  judgment  vacated  and  a  new 
trial  granted  on  the  ground  of  accident 
and  surprise.  McGuire  v.  Drew,  83  Cal. 
225;  23  Pac.  312.  Where  a  motion  for  a 
new  trial  was  denied  on  the  ground  that 
the  moving  affidavits  were  not  filed  in 
time,  a  subsequent  motion  to  set  aside  the 
judgment,  on  the  ground  of  excusable  ne- 
glect, will  also  be  denied,  if  sufficient  rea- 
sons are  not  shown  for  the  delay  in  filing 
the  affidavits  on  the  former  motion.  Heine 
V.  Treadwell,  72  Cal.  217;  13  Pac.  503. 

Affidavit  of  merits.  An  affidavit  of 
merits  is  required  in  proceedings  for  re- 
lief under  this  section  (Nevada  Bank  v. 
Dresbach,  63  Cal.  324;  Quan  Quock  Fong 
V.  Lyons,  20  Cal.  App.  668;  130  Pac.  33); 
and  the  defendant  must  show  that  he  has 
a  good  defense  to  the  action  on  the  merits. 
People  V.  Eains,  23  Cal.  127;  Grav  v.  Law- 
lor, 151  Cal.  352;  12  Ann.  Cas.  990;  90  Pac. 
691.  Where  no  affidavit  of  merits  is  made, 
an  explanation  should  be  given.  Bailey  v. 
Taaffe,  29  Cal.  422.  In  the  absence  of  a 
showing   of   merits,   relief   will   be   denied.. 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


434 


Eeese  v.  Mahoney,  21  Cal.  305;  Bailey  v. 
Taafe,  29  Cal.  422;  Parrott  v.  Den,  34  Cal. 
79.  No  affidavit  of  merits  is  necessary  on 
a  motion  to  vacate  a  judgment  rendered 
upon  an  invalid  stipulation  (Toy  v.  Has- 
kell, 128  Cal.  558;  79  Am.  St.  Rep.  70;  61 
Pac.  89);  nor  on  a  motion  to  set  aside  a 
judgment,  entered  upon  a  fraudulent  stipu- 
lation, where  the  record  shows  that  there 
is  a  meritorious  defense  (Crescent  Canal 
Co.  V.  Montgomery,  124  Cal.  134;  56  Pac. 
797);  nor  on  a  motion  to  vacate  a  judg- 
ment based  upon  want  of  jurisdiction  of 
the  person  (Maclay  Co.  v.  Meads,  14  Cal. 
App.  363;  112  Pac.  195;  113  Pac.  364);  nor 
on  a  motion  to  set  aside  a  decree  in  a 
divorce  suit  (Cottrell  v.  Cottrell,  S3  Cal. 
457;  23  Pac.  531);  nor  where  the  judg- 
ment shows  upon  its  face  that  it  was  im- 
providently  made  (Clarke  v.  Baird,  98  Cal. 
642-,  33  Pac.  756) ;  nor  where  the  judg- 
ment is  void:  in  this  class  of  cases  the 
defendant  is  entitled  to  relief,  indepen- 
dently of  the  statute.  Norton  v.  Atchison 
etc.  R.  R.  Co.,  97  Cal.  388;  33  Am.  St.  Rep. 
198;  30  Pac.  585;  32  Pac.  452.  The  court 
may  grant  leave  to  the  defendant  to  amend 
his  affidavit,  and  to  file  the  same.  Palmer 
V.  Barclay,  92  Cal.  199;  28  Pac.  226.  The 
affidavit  cannot  be  controverted  (Reclama- 
tion District  v.  Coghill,  56  Cal.  607) ;  nor 
can  counter-affidavits  be  received  (Francis 
V.  Cox,  33  Cal.  323;  Gracier  v.  Weir,  45 
Cal.  53) ;  nor  can  the  merits  of  the  case 
be  tried  (Rauer's  Law  etc.  Co.  v.  Gilleran, 
138  Cal.  352;  71  Pac.  445);  but  where  the 
court  deems  further  affidavits  necessary, 
the  hearing  may  be  continued  for  that 
purpose.  Melde  v.  Re.ynolds,  129  Cal.  308; 
61  Pac.  932.  Where  the  affidavit  is  insuffi- 
cient, the  court  should  not  set  aside  the 
judgment;  it  has  no  authority  to  waive  a 
proper  affidavit.  Morgan  v.  McDonald,  70 
Cal.  32;  11  Pac.  350.  A  verified  answer  is 
a  sufficient  showing  of  merits.  Fulweiler 
V.  Hog's  Back  Consol.  Mining  Co.,  83  Cal. 
126;  23  Pac.  65.  The  affidavit  may  be 
made  by  counsel,  where  the  defendant  is 
ignorant,  and  unacquainted  with  modes  of 
judicial  proceedings  (Byrne  v.  Alas,  68 
Cal.  479;  9  Pac.  850);  and  it  is  not  objec- 
tionable because  made  by  an  attorney. 
Will  V.  Lytle  Creek  Water  Co.,  100  Cal. 
344;  34  Pac.  830.  A  personal  affidavit  is 
not  jurisdictional.  Melde  v.  Reynolds,  129 
Cal.  308;  61  Pac.  932.  The  affidavit  must 
state  that  the  defendant  has  fully  and 
fairly  stated  the  facts  of  the  case  to  his 
counsel:  a  statement  that  he  has  stated  the 
facts  of  his  defense  to  counsel  is  insuffi- 
cient (Morgan  v.  McDonald,  70  Cal.  32;  11 
Pac.  350) ;  and  it  is  also  insufficient,  that  he 
stated  "his  case"  to  his  counsel  (People  v. 
Larue,  66  Cal.  235;  5  Pac.  127);  and  that 
he  had  fully  and  fairly  stated  to  counsel 
all  the  facts  constituting  the  defense 
(Palmer  &  Rey  v.  Barclay,  92  Cal.  199;  28 
Pac.  226);  and  that  lie  had  fairly  and 
fully  stated  "all  the  facts"  to  his  counsel. 
Jensen   v.   Dorr,   9   Cal.   App.    19;   98   Pac. 


46.  It  is  not  essential  that  the  affidavit 
disclose  facts  constituting  a  defense. 
Rauer's  Law  etc.  Co.  v.  Gilleran,  loS  Cal. 
352;  71  Pac.  445;  Woodward  v.  Backus, 
20  Cal.  137;  Francis  v.  Cox,  33  Cal.  323; 
Reidy  v.  Scott,  53  Cal.  69.  The  rule  that 
a  party  moving  to  vacate  a  judgment  by 
default  cannot  be  deprived  of  relief  be- 
cause the  affidavit  is  overcome  by  counter- 
affidavits,  does  not  apply  where  no  case 
of  inadvertence  or  excusable  neglect  is 
shown.  Bond  v.  Karma-Ajax  Consol.  Min- 
ing Co.,  15  Cal.  App.  469;  115  Pac.  254. 
Where  the  affidavit  is  materially  deficient 
in  showing  that  the  default  occurred 
through  mistake,  inadvertence,  surprise,  or 
excusable  neglect,  or  that  the  defendant 
has  a  meritorious  defense  to  the  action, 
the  judgment  should  not  be  vacated. 
Bailey  v.  Taaffe,  29  Cal.  422.  An  affida- 
vit showing  that  the  defense  is  of  a  tech- 
nical character,  not  aifecting  the  merits  of 
the  case,  is  insufficient  (People  v.  Rains, 
23  Cal.  127);  as  is  also  an  affidavit  stating 
facts  that  would  not  constitute  a  defense 
to  the  action  upon  the  merits  (Tuttle  v. 
Scott,  119  Cal.  586;  51  Pac.  849);  and  an 
affidavit  containing  no  averment  of  mis- 
take, inadvertence,  surprise,  or  any  at- 
tempt to  account  for  failure  to  answer 
within  the  time  allowed  by  law,  where 
personal  service  of  summons  was  made 
(Harlan  v.  Smith,  6  Cal.  173);  and  an 
affidavit,  that  the  affiant  was  fully  advised 
of  the  facts  and  circumstances  involved  in 
the  defense.  Quan  Quock  Fong  v.  Lyons 
20  Cal.  App.  668;  130  Pac.  33.  Where  the 
affidavit  discloses  a  degree  of  negligence 
carelessness,  and  lack  of  diligence,  hardly 
to  be  expected  of  a  prudent  business  man 
the  application  should  be  denied.  Coleman 
V.  Rankin,  37  Cal.  247;  Wolff  &  Co.  v 
Canadian  Pacific  Ry.,  89  Cal.  332;  26  Pac 
825.  An  affidavit  by  the  defendant's  at 
torney,  that  he  has  examined  the  defend 
ant's  title,  and  verily  believes,  from  such 
examination,  that  it  is  better  than  the 
plaintiff's,  does  not  show  a  meritorious 
defense.  Bailey  v.  Taaffe,  29  Cal.  422. 
The  default  should  be  set  aside,  where 
there  is  a  sufficient  affidavit,  and  the  facts, 
if  proved,  would  constitute  a  meritorious 
defense.  Reidv  v.  Scott,  53  Cal.  69;  Burns 
v.  Seooffy,  98  Cal.  271;  33  Pac.  86.  Where 
a  foreign  corporation  failed  to  designate 
an  agent  in  this  state,  and  no  service  by 
publication  was  made,  but  a  substituted 
service  upon  the  secretary'  of  state,  a 
motion  to  vacate  a  judgment  by  default 
against  such  coriioration  must  be  denied, 
where  there  is  no  showing  of  a  meritorious 
defense  to  the  action,  and  the  defendant 
does  not  ask  to  be  allowed  to  come  in  and 
make  such  defense.  Olender  v.  Crvstalline 
Mining  Co.,  149  Cal.  482;  86  Pac.  1082. 
The  statute  of  limitations  is  a  defense  on 
the  merits,  which  may  be  set  up  after  a 
default  has  been  vacated  (Lilly-Brackett 
jC'o.  v.  Sonnemanu,  157  Cal.  192;  21  Ann. 
Cas.   1279;   106  Pac.  715);   and  where  the 


435 


ATTORNEYS — MISTAKE  OR   NEGLECT  OF — VOID   JUDGMENTS. 


§473 


bar  of  the  statute  is  plea<1ed  as  a  defense, 
that  is  a  sufficient  answer  to  the  merits 
to  justify  the  opening  of  a  default.  San 
Diego  Realty  Co.  v.  McGinn,  7  Cal.  App. 
-264;  94  Pac.  374. 

Mistake  or  neglect  of  attorney.  Judg- 
ment by  default  may  be  sot  aside  on  ac- 
count of  the  mistake,  inadvertence,  or 
excusable  neglect  of  the  attorney  (O'Brien 
V.  Leach,  139  Cal.  220;  96  Am.  St.  Rep. 
105;  72  Pac.  1004);  but  an  attorney's  igno- 
rance of  the  limit  of  the  court's  power  to 
extend  time  is  inexcusable  neglect.  Utah- 
Nevada  Co.  V.  De  Lamar,  9  Cal.  App.  759; 
100  Pac.  884.  Ignorance  of  the  law  re- 
quiring an  answer  to  be  filed  within  ten 
days  is  no  ground  for  setting  aside  a  judg- 
ment by  default.  Chase  v.  Swain,  9  Cal. 
130.  Because  more  time  was  required  to 
prepare  the  answer  than  in  ordinary  cases, 
and  because  the  defendant's  attorney  was 
compelled  to  be  absent  during  a  part  of 
the  time,  are  not  good  grounds  for  setting 
aside  a  judgment  by  default.  Bailey  v. 
Taaffe,  29  Cal.  422.'  A  judgment  by  de- 
fault cannot  be  set  aside  upon  a  mere 
abstract  allegation  of  the  attorney's  in- 
advertence in  drafting,  serving,  or  filing 
the  answer:  reasons,  causes,  and  excuses 
for  inadvertence,  must  be  stated;  and  a 
judgment  by  default  should  not  be  va- 
cated, merely  on  the  ground  of  the  attor- 
ney's mistake  in  believing  that  the  service 
of  notice  of  the  overruling  of  the  demurrer 
to  the  complaint  was  unauthorized  by  law. 
Shearman  v.  Jorgensen,  106  Cal.  483;  39 
Pac.  863.  There  is  no  abuse  of  discretion  in 
setting  aside  a  judgment  by  default,  where 
the  attorney  was  mistaken,  owing  to  an 
-error  of  his  clerk,  as  to  the  time  the  case 
was  set  for  trial,  and  did  not  appear 
(Dougherty  v.  Nevada  Bank,  68  Cal.  275; 
9  Pac.  112) ;  nor  where  the  plaintiff's  at- 
torney resided  at  a  considerable  distance 
from  the  place  of  trial,  and  he  had  reason 
to  believe  that  the  case  would  not  be  trie<l 
when  called.  Cameron  v.  Carroll,  67  Cal. 
500;  8  Pac.  45.  Where  the  attorney  for 
the  plaintiff  voluntarily  absents  himself 
to  attend  a  trial  in  another  county,  not 
in  the  capacity  of  an  attorney,  but  as  a 
witness,  and  after  having  agreed  to  dis- 
miss the  cause,  and  judgment  goes  for  the 
defendant,  the  facts  are  not  suflicieut  to 
authorize  the  vacation  of  the  judgment. 
Gray  v.  Sabin,  87  Cal.  211;  25  Pac.  422. 
A  judgment,  erroneous  in  substance,  en- 
tered, after  the  sustaining  of  a  demurrer, 
in  the  absence  of  the  defendant's  attor- 
ney, and  against  his  express  directions  to 
the  clerk,  may  be  vacated,  where  the  de- 
fendant, on  learning  of  its  entry,  promptly 
moved  to  set  it  aside.  City  Street  Im- 
provement Co.  V.  Emmons,  138  Cal.  297; 
71  Pac.  332.  A  default  should  be  set 
aside,  where  it  was  occasioned  by  the  in- 
advertence of  the  clerk  of  the  supreme 
court,  in  failing  to  make  an  entry  of  the 
issuance  of  a  remittitur,  and  in  mislead- 
ing the  attorney  of  the  defendant  by  his 


statements.  Hogs  Back  Consol.  etc.  Min- 
ing Co.  V.  New  Basil  Consol.  etc.  Mining 
Co.,  65  Cal.  22;  2  Pac.  489.  Where  the 
defendant's  attorney  was  misled,  through 
a  misunderstanding  in  a  conversation  with 
an  attorney  for  the  plaintiff,  into  the  be- 
lief that  the  trial  would  be  postponed,  the 
defendant's  motion  to  vacate  the  judg- 
ment and  to  grant  a  new  trial  should  be 
granted  (Symous  v.  Bunnell,  80  Cal.  330; 
22  Pac.  193);  and  also  where  it  is  shown 
the  defendant  and  his  attorney  resided 
at  a  great  distance  from  the  county  seat; 
that  they  were  not  notified  that  the  case 
was  set  for  trial,  and  did  not  hear  that 
it  had  been  set  until  it  was  too  late  to 
be  present  and  answer;  and  that  they  had 
a  good  and  substantial  defense  to  the 
action  on  the  merits  (Buell  v.  Emerich, 
85  Cal.  116;  24  Pac.  644);  and  also  where 
it  is  shown  that  the  merits  were  not  passed 
upon  on  a  first  appeal;  that  no  service  of 
an  amended  complaint  was  made  and  no 
notice  of  the  filing  thereof  given,  except 
a  copy  mailed  to  the  attorney  of  one  of 
the  defendants,  who  did  not  receive  it 
until  a  month  after  mailing,  and  who  had 
no  knowledge  of  the  date  of  mailing;  and 
that  the  defendants  were  not  guilty  of 
any  negligence  in  failing  to  demur  or  an- 
swer to  the  amended  complaint.  Malone 
V.  Big  Flat  Gravel  Mining  Co.,  93  Cal. 
384;  28  Pac.  1063.  Where  the  defendant's 
attorneys  were  misled,  and  the  defend- 
ant's failure  to  be  represented  at  the  trial 
was  the  result,  and  the  neglect  was  ex- 
cusable, the  refusal  of  the  court  to  vacate 
and  set  aside  the  judgment  will  be  re- 
versed on  appeal.  Melde  v.  Revnolda,  129 
Cal.  308;  61  Pac.  932. 

Vacation  of  void  judgments.  A  void 
judgment  is  not  one  entered  through  mis- 
take, inadvertence,  surprise,  or  excusable 
neglect,  and  is  not  governed  by  this  sec- 
tion. Stierlen  v.  Stierlen,  18  Cal.  App. 
609;  124  Pac.  226,  228;  People  v.  Greene,  74 
Cal.  400;  5  Am.  St.  Rep.  448;  16  Pac.  197; 
Lapham  v.  Campbell,  61  Cal.  296;  Baker 
v.  O'Riordan,  65  Cal.  368;  4  Pac.  232. 
Where  the  judgment  is  in  fact  void,  the 
party  against  whom  it  was  rendered  has 
an  absolute  right,  without  invoking  this 
section,  to  have  it  vacateil:  he  is  not  re- 
quired to  show  that  he  has  a  meritorious 
defense  to  the  action,  as  a  condition  to 
the  granting  of  such  right.  German  Sav. 
&  L.  Soc.  v.  Bien,  18  Cal.  App.  267;  122 
Pac.  1096.  Where  the  judgment  is  not 
void  on  its  face,  a  motion  will  not  lie  to 
vacate  it  after  the  time  limited  by  statute; 
and  in  all  cases,  after  the  lapse  of  such 
time,  when  the  attempt  is  made  to  vacate 
the  judgment  by  a  proceeding  for  that 
purpose,  an  action  regularly  brought  is 
preferable,  and  should  be  required;  but  a 
judgment  void  on  its  face  may  be  at- 
tacked at  any  time,  directly  or  collater- 
ally. People  V.  Harrison,  84  Cal.  607;  24 
Pac.  311;  People  v.  Blake,  84  Cal.  611;  22 
Pac.   1142;   24  Pac.  313;   Wharton  v.  Har- 


§473 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


436 


Ian,  68  Cal.  422;  9  Pac.  727;  People  v. 
Davis,  143  Cal.  673;  77  Pac.  651.  A  judg- 
ment, void  on  its  face,  may  be  vacated 
upon  motion  (Jacks  v.  Baldez,  97  Cal.  91; 
31  Pac.  899),  at  any  time  after  its  entry 
(People  V.  Greene,  74  Cal.  400;  5  Am.  St. 
Eep.  448;  16  Pac.  197);  and  this  right 
exists  independently  of  any  statutory  pro- 
vision (George  Frank  Co.  v.  Leopold  & 
Perron  Co.,  13  Cal.  App.  59;  108  Pac.  878); 
and  this  rule  applies  to  a  deficiency  judg- 
ment in  the  foreclosure  of  a  mortgage. 
Latta  V.  Tutton,  122  Cal.  279;  6S  Am.  St. 
Eep.  30;  54  Pac.  844.  The  power  of  the 
court  to  vacate  a  judgment  or  order,  void 
upon  its  face,  is  not  extinguished  by  lapse 
of  time,  but  may  be  exercised  whenever  the 
matter  is  brought  to  the  attention  of  the 
court;  and  while  a  motion  for  such  action, 
on  the  part  of  the  court,  is  appropriate,  yet 
neither  a  motion,  nor  notice  to  the  adverse 
party,  is  essential:  the  court  has  power 
to  take  such  action,  on  its  own  motion, 
without  application  on  the  part  of  any 
one.  People  v.  Davis,  143  Cal.  673;  77  Pac. 
651.  A  judgment,  void  upon  its  face,  and 
which  requires  only  an  inspection  of  the 
judgment  roll  to  show  its  invalidity,  will 
be  set  aside,  on  motion,  by  the  court  ren- 
dering it,  at  anj^  time  after  its  entry 
(People  V.  Temple,  103  Cal.  447;  37  Pac. 
414);  and  where  the  moving  party  has 
succeeded  to  the  rights  of  the  defendant, 
his  motion  to  set  aside  the  judgment  can- 
not be  defeated  by  mere  delay,  however 
great.  People  v.  Goodhue,  80  Cal.  199;  22 
Pac.  66.  Where  a  judgment  by  default 
is  void  because  entered  by  the  clerk  with- 
out authority,  there  is  no  ground  for  a 
resort  to  a  court  of  equity:  the  court  in 
which  such  judgment  was  rendered  can, 
on  motion,  at  any  time,  arrest  all  process 
issued  therein  by  its  clerk.  Chipman  v. 
Bowman,  14  Cal.  157;  Logan  v.  Hillegass, 
16  Cal.  200;  Bell  v.  Thompson,  19  Cal.  706; 
Sanchez  v.  Carriaga,  31  Cal.  170;  Murdock 
V.  De  Vries,  37  Cal.  527.  Judgment  with- 
out personal  service  of  summons,  or  au- 
thorized appearance  by  the  defendant,  is 
void;  but  it  may  be  shown  that  the  judg- 
ment is  void  only  in  certain  ways,  and  the 
superior  court  cannot  set  aside  such  judg- 
ment, except  on  the  evidence  found  in  the 
judgment  roll,  where  more  than  six  months 
have  elapsed  since  its  rendition.  People  v. 
Harrison,  107  Cal.  541;  40  Pac.  956.  A 
judgment  void  upon  its  face  is  one  which 
appears  to  be  void  from  an  inspection  of 
the  judgment  roll;  and  the  mere  absence  of 
a  paper  from  the  roll,  such  as  the  return 
of  the  officer  showing  service  of  summons, 
cannot  invalidate  the  judgment,  where  the 
judgment  itself  recites  the  fact  that  the 
defendant  was  duly  served  (People  v.  Har- 
rison, 84  Cal.  607;  24  Pac.  311;  Latta  v. 
Tutton,  122  Cal.  279;  68  Am.  St.  Eep.  30; 
54  Pac.  844;  Butler  v.  Soule,  124  Cal.  69; 
56  Pac.  601);  and  before  the  amendment 
of  1895  to  §  670,  post,  neither  the  affidavit 
nor  order  of  publication  was  a  part  of  the 


roll,  and  could  not  be  considered  on  a  motion 
to  vacate  the  judgment.  People  v.  Temple, 
103  Cal.  447;  37  Pac.  414;  Jacks  v.  Baldez, 
97  Cal.  91;  31  Pac.  899;  Canadian  etc. 
Trust  Co.  V.  Clarita  etc.  Investment  Co., 
140  Cal.  672;  74  Pac.  301.  A  judgment 
rendered  without  service  of  summons  upon 
the  defendant,  either  actual  or  construc- 
tive, is  void.  People  v.  Harrison,  107  Cal. 
541;  40  Pac.  956.  A  judgment  rendered, 
without  personal  service,  and  upon  a  pub- 
lication of  summons  not  based  upon  any 
affidavit  or  order  of  publication,  is  void; 
and  the  court  has  no  power  to  set  it  aside,, 
upon  evidence  not  found  in  the  judgment 
roll,  where  more  than  six  months  have 
elapsed  since  its  rendition.  People  v.  Har- 
rison, 107  Cal.  541;  40  Pac.  956.  Where 
proof  of  service  of  summons  on  the  de- 
fendant is  not  made  as  required  by  law,, 
the  court  acquires  no  jurisdiction  of  his 
person,  and  a  judgment  rendered  against 
him,  without  such  proof,  is  invalid  and 
void,  and  may  be  set  aside  upon  motion. 
Eeinhart  v.  Lugo,  86  Cal.  395;  21  Am.  St. 
Rep.  52;  24  Pac.  1089.  Where  defects  in 
the  return  of  service  cannot  be  supplied 
by  presumption,  and  the  record  fails  to 
show  jurisdiction,  a  judgment  by  default, 
upon  such  return,  is  void  for  want  of  juris- 
diction. Pioneer  Land  Co.  v.  Maddux,  109- 
Cal.  633;  50  Am.  St.  Eep.  67;  42  Pac.  295. 
A  judgment  is  not  void  because  it  gives 
relief  in  excess  of  that  prayed  for;  and  the 
lower  court  has  no  power  to  amend  or 
modify  it  as  to  the  excess,  as  an  act  done 
without  jurisdiction.  Cohen  v.  Cohen,  150- 
Cal.  99;  11  Ann.  Cas.  520;  88  Pac.  267. 
In  a  foreclosure  suit,  where  the  complaint 
does  not  make  a  case  entitling  the  plaintiff" 
to  a  personal  judgment  against  the  de- 
fendant, and  the  decree  does  not  declare 
any  personal  liability,  an  ex  parte  amend- 
ment, after  the  entry  of  the  final  decree, 
establishing  the  personal  liability  of  the 
mortgagor,  and  directing  the  clerk  to  enter 
a  deficiency  judgment  against  him,  is  with- 
out jurisdiction,  and  void.  Scamman  v, 
Bonslett,  118  Cal.  93;  62  Am.  St.  Eep.  226; 
50  Pac.  272.  A  judgment  in  a  foreclosure 
suit,  commenced  in  a  county  other  than 
that  where  the  mortgaged  premises  are 
situated,  is  void.  Eogers  v.  Cady,  104  Cal 
288;  43  Am.  St.  Eep.  100;  38  Pac.  81. 

Notice.  Actual  notice  of  the  entry  of  an 
order  appealed  from,  established  by  satis- 
factory evidence  of  record,  starts  the  time 
running  without  service  of  written  notice. 
Estate  of  Keating,  158  Cal.  109;  110  Pac. 
109.  The  object  of  notice  is  to  bring  home 
to  the  attorney  knowledge  of  a  fact  upon 
which  he  is  called  to  act:  where  he  has 
direct  and  positive  knowledge,  written 
notice  is  unnecessarv.  Bell  v.  Thompson, 
S  Cal.  App.  483;  97  Pac.  158.  The  notice 
of  motion  to  set  aside  a  judgment  by  de- 
fault need  not  state  in  detail  the  facts 
upon  which  the  relief  is  asked:  it  is  suffi- 
cient if  it  states  the  grounds  upon  which 
the  motion  will  be  made.  O'Brien  v.  Leach, 


437 


JUDGMENTS — VACATING — NOTICE — TIME  TO  MOVE, 


§473 


139  Cal.  220;  96  Am.  St.  Eep.  105;  72  Pac. 
1004. 

Time  within  which  party  must  move. 
Under  the  Practice  Act,  it  was  uecessary 
for  a  party  to  take  initiatory  steps  to 
obtain  the  relief  authorized,  before  the 
expiration  of  the  term  at  which  final  judg- 
ment was  rendered,  in  all  cases,  except 
those  in  which  the  defendant  had  been  per- 
sonally served  with  summons,  in  which 
cases  the  court  could,  upon  such  terms  as 
might  be  just,  allow  the  defendant  to  an- 
swer to  the  merits  at  any  time  within  six 
months  after  the  rendition  of  judgment 
(Casement  v.  Kinggold,  28  Cal.  335);  and, 
after  the  expiration  of  the  term,  no  power 
remained  in  the  court  to  set  aside  a  judg- 
ment or  to  grant  a  new  trial  (Baldwin  v. 
Kramer,  2  Cal.  582;  Morrison  v.  Dapman, 

2  Cal.  255;  Suydam  v.  Pitcher,  4  Cal.  280; 
Lattimer  v.  Ryan,  20  Cal.  628;  People  v. 
•Greene,  74  Caf.  400;  5  Am.  St.  Rep.  448; 
16  Pac.  197);  but,  since  the  Practice  Act, 
the  legislature  has  enlarged  the  power  of 
the  court  to  set  aside  judgments,  and  to 
Telieve  a  party  from  an  unjust  or  an  im- 
properly obtained  judgment,  at  any  time, 
■upon  good  cause  shown.   People  v.  Lafarge, 

3  Cal.  130.  The  court  has  the  inherent 
light  and  power,  at  any  time,  to  cause  its 
Acts  and  proceedings  to  be  correctly  set 
forth  in  its  records;  but  it  cannot,  under 
the  pretense  of  an  amendment,  revise  a 
judgment  after  the  right  to  correct  it  in 
.any  form  has  become  final.  Forrester  v. 
Xiawler,  14  Cal.  App.  171;  111  Pac.  284. 
Mere  clerical  misprisions  or  omissions  are 
subject  to  correction  at  any  time,  by  an 
■order  entered  for  that  purpose,  but  acts 
not  within  that  category  must  be  distin- 
guished. Cosby  V.  Superior  Court,  110  Cal. 
45;  42  Pac.  460.  To  obtain  relief  under 
this  section,  application  must  be  made 
within  the  time  prescribed:  the  court  has 
no  power  to  vacate  a  judgment  or  order, 
not  void  upon  its  face,  after  the  expira- 
tion of  the  time  limited  by  this  section. 
Hartman  v.  Olvera,  49  Cal.  101;  Amestoy 
Estate  Co.  v.  Los  Angeles,  5  Cal.  App.  273; 
SO  Pac.  42;  Estate  of  Cahalan,  70  Cal.  604; 
12  Pac.  427;  Dunsmuir  v.  Coffey,  148  Cal. 
137;  82  Pac.  682;  Moore  v.  Superior  Court, 
86  Cal.  495;  25  Pac.  22;  Tinu  v.  United 
States  District  Attorney,  148  Cal.  773;  113 
Am.  St.  Rep.  354;  84  Pac.  152;  Estate  of 
Dunsmuir,  149  Cal.  67;  84  Pac.  657;  Steen 
"V.  Santa  Clara  Valley  Mill  etc.  Co.,  4  Cal. 
App.  448;  88  Pac.  499.  Jurisdiction  to 
modify  or  vacate  a  default,  decree,  or 
judgment  is  lost,  where  the  time  for  the 
proceeding  has  expired.  Reed  v.  Reed,  9 
Cal.  App.  748;  100  Pac.  897;  Steen  v.  Santa 
Clara  Valley  etc.  Co..  4  Cal.  App.  448;  88 
Pac.  499;  Andreen  v.  Andreen,  15  Cal. 
App.  728;  115  Pac.  761;  Boland  v.  All  Per- 
sons. 160  Cal  486;  117  Pac.  547.  A  judg- 
ment will  not  be  vacated  upon  motion, 
made  after  the  lapse  of  the  prescribed 
period,  unless  it  is  void  upon  its  face; 
which  is  quite  consistent  with  the  propo- 


sition, that  a  motion  made  within  the 
statutory  period  may  be  granted  as  well 
when  the  defendant  is  wholly  without 
fault  as  when  he  has  been  guilty  of  a  mis- 
take, inadvertence,  surjirise,  or  excusable 
neglect.  Norton  v.  Atchison  etc.  R.  R.  Co., 
97  Cal.  388;  33  Am.  St.  Rep.  198;  30  Pac. 
585;  32  Pac.  452.  Where  a  judgment  was 
vacated  for  inadvertence,  and  the  time  to 
appeal  from  an  order  vacating  it  had  ex- 
pired, without  any  apjieal  therefrom  or 
modification  thereof,  anil  there  is  a  second 
judgment  or  decree,  not  void  upon  its  face, 
which  it  is  sought  to  vacate  and  set 
aside,  the  notice  of  motion  therefor,  if 
served  and  filed  nearly  ten  months  after 
the  entrv  of  decree,  comes  too  late.  But- 
ler V.  Soule,  124  Cal.  69;  56  Pac.  601.  An 
action  to  cancel  and  set  aside  a  judgment, 
brought  more  than  five  years  after  the 
entry  of  judgment,  is  barred  by  laches 
and  gross  carelessness  affirmatively  ap- 
pearing in  the  complaint.  Hildreth  v. 
.Tames,  109  Cal.  301;  41  Pac.  1039.  A 
judgment,  not  void  on  its  face,  cannot  be 
vacated  on  a  mere  motion,  made  years 
after  its  rendition  (People  v.  Harrison.  84 
Cal.  607;  24  Pac.  311;  People  v.  Blake.  84 
Cal.  611;  22  Pac.  1142;  24  Pac.  313);  but 
resort  should  be  had  to  an  action,  and  all 
parties  interested  should  be  notified  and 
have  an  opportunity  to  be  heard  (People 
v.  Temple,  103  Cal.  447;  37  Pac.  414): 
nor  can  the  judgment  be  vacated,  on  a 
mere  motion,  after  the  lapse  of  twenty- 
three  years,  where  the  moving  party's 
grantor  was  personally  served  five  montlis 
prior  to  the  entry  of  the  judgment.  People 
V.  Goodhue,  80  Cal.  199;  22  Pac.  66.  A 
mere  error  of  the  court  cannot  be  taken 
advantage  of  on  motion  to  set  aside  a  de- 
fault judgment,  where  such  motion  is  made 
nearly  five  years  after  the  rendition  of 
the  judgment.  People  v.  Wrin,  143  Cal. 
11;  76  Pac.  646.  A  judgment,  not  void 
on  its  face,  reciting  that  the  defendant 
was  duly  served  with  process,  cannot  be 
set  aside,  on  motion  made  sixteen  years 
after  the  judgment  was  entered,  on  the 
ground  that  the  summons  was  not  per- 
sonally serveil  on  the  defendant,  and  was 
published  without  an  affidavit,  where  the 
deputy  clerk  and  the  district  attorney  at 
the  time  the  action  was  pending  testified 
that  no  affidavit  for  publication  had  been 
filed,  and  there  was  no  such  filing  on  the 
register  of  actions.  People  v.  Harrison,  84 
Gal.  607;  24  Pac.  311.  A  motion  to  set 
aside  a  judgment,  upon  the  ground  that 
it  appears  upon  its  face  that  the  court 
had  no  jurisdiction  of  the  person  of  the 
defendant,  is  a  direct  attack  upon  the 
judgment,  and  is  not  barred  by  the  mere 
lapse  of  time.  Rue  v.  Quinn,  137  Cal.  651; 
66  Pac.  216;  70  Pac.  732.  The  court  may, 
at  any  time,  set  aside  a  judgment  by  de- 
fault, entered  by  the  clerk,  where  it  ap- 
pears from  the  judgment  roll  that  he  had 
no  power  to  enter  it.  Young  v.  Fink,  119 
Cal.   107;   50   Pac.   1060.     The  time   within 


§473 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


438^ 


which  a  judgment,  the  invalidity  of  which 
does  not  appear  upon  its  face,  may  be  set 
aside  upon  motion,  seems  not  to  have  been 
definitely  determined,  further  than  that  it 
may  be  done  within  the  time  limited  by 
this  section.  People  v.  Thomas,  101  Gal. 
571;  36  Pac.  9.  Where  a  judgment  is 
regular  on  its  face,  with  no  question  as 
to  the  jurisdiction  of  the  court,  a  motion 
to  set  it  aside,  not  made  within  the  pre- 
scribed time,  should  be  denied.  Young  v. 
Fink,  119  Cal.  107;  50  Pac.  1060.  An 
erroneous  judgment  is  not  void;  hence,  it 
cannot  be  set  aside  on  motion  after  the 
expiration  of  the  time  limited  by  this  sec- 
tion. Blondeau  v.  Snyder,  95  Cal.  521;  31 
Pac.  591;  and  see  Estate  of  Dunsmuir,  149 
Cal.  67;  84  Pac.  657.  The  limitation  of 
time  prescribed  by  this  section  is  a  limi- 
tation of  the  time  within  which  the  appli- 
cation must  be  made,  and  not  of  the  time 
within  which  it  must  be  heard  or  deter- 
mined. Wolff  v.  Canadian  Pacific  Ry.  Co., 
89  Cal.  332;  26  Pac.  825.  The  superior 
court  has  no  power  or  authority  to  vacate 
or  modify  its  judgment,  on  account  of 
judicial  error,  after  the  time  therefor  has 
expired,  no  matter  how  apparent  such 
error  may  be  on  the  face  of  the  record: 
its  power  thereafter  is  limited  to  the  cor- 
rection of  mere  clerical  misprisions  on  the 
record,  or  to  the  excision  of  such  parts 
of  the  record  as  appear  or  can  be  shown 
to  be  void  for  lack  of  jurisdiction  or 
power  (Grannis  v.  Superior  Court,  146  Cal. 
245;  106  Am.  St.  Rep.  23;  79  Pac.  891); 
nor  has  the  superior  court  jurisdiction  to 
entertain,  after  the  time  specified  in  this 
section,  a  petition  to  set  aside  a  decree  for 
fraud,  or  because  the  court  was  imposed 
upon  by  false  testimony:  a  court  of  equity 
can  grant  the  proper  relief.  Estate  of 
Hudson,  63  Cal.  454.  While  an  appeal 
from  a  judgment  is  pending,  the  court  in 
which  the  judgment  was  rendered  has  no 
power  to  correct  or  amend  it.  Shay  v. 
Chicago  Clock  Co.,  Ill  Cal.  549;  44  Pac. 
237;  Kirby  v.  Superior  Court,  68  Cal.  604; 
10  Pac.  119.  An  order  vacating  and  set- 
ting aside  a  judgment  and  granting  a  new 
trial  will  be  reversed,  when  the  time  in 
which  the  motion  might  have  been  made 
for  a  new  trial  had  passed,  and  the  right 
to  move  therefor  gone.  Hegeler  v.  Henck- 
ell,  27  Cal.  491.  The  court  has  power 
to  allow  amendments  to  judgments,  re- 
gardless of  the  lapse  of  time,  where  the 
record,  as  entered  by  the  clerk,  fails  to 
conform  to  the  judgment  rendered  by  the 
court.  Forrester  v.  Lawler,  14  Cal.  App. 
171;  111  Pac.  284;  Erickson  v.  Stockton 
etc.  R.  R.  Co.,  148  Cal.  206;  82  Pac.  961; 
San  Francisco  v.  Brown,  153  Cal.  644;  96 
Pac.  281.  .\n  application  to  amend  or 
correct  a  bill  of  exceptions,  or  statement 
of  the  case,  after  settlement,  is  governed 
ViV  the  time  limitation  of  this  section. 
S'prigg  V.  Barber,  118  Cal.  591;  50  Pac. 
682;    Donnelly   v.   Tregaskis,    7    Cal.    App. 


317;  94  Pac.  383;  Merced  Bank  v.  Price^ 
152  Cal.  697;  93  Pac.  866;  Estate  of 
Thomas,  155  Cal.  488;  101  Pac.  798.  The 
same  rule  applies  to  bills  of  exceptions  as 
to  statements  on  motion  for  a  new  trial, 
in  the  respect  that  the  party  moving  for- 
a  new  trial  must  prepare  and  serve  his 
bill  of  exceptions  within  the  time  allowed 
by  law,  or  it  cannot  be  settled,  either  at, 
the  hearing  of  the  motion  or  on  appeal. 
Stonesifer  v.  Armstrong,  86  Cal.  594;  25 
Pac.  50.  The  court  has  power,  and  has  a 
large  discretion,  to  settle  a  statement  on 
motion  for  a  new  trial,  on  the  ground  of 
inadvertence,  surprise,  or  excusable  neglect,, 
though  not  presented  within  the  time 
allowed  by  law  (Banta  v.  Siller,  121  Cal. 
414;  53  Pac.  935);  or  to  allow  a  bill  of 
exceptions  to  be  settled,  for  use  on  the 
motion  for  a  new  trial,  after  the  time  lim- 
ited, upon  a  showing  of  sufficient  excuse.. 
Mattern  v.  Alderson,  18  Cal.  App.  590;; 
123  Pac.  972.  Any  relief  from  a  failure 
to  file  the  required  notice  of  appeal  within 
the  prescribed  time,  if  it  can  be  given  at 
all,  must  be  sought  in  the  lower  court- 
Estate  of  Keating,  158  Cal.  109;  110  Pac. 
109.  The  grounds  for  contesting  a  will,, 
after  its  admission  to  probate,  cannot  be- 
amended  after  the  lapse  of  the  year  lim- 
ited for  the  institution  of  the  contest,  so 
as  to  add  an  independent  cause  of  con- 
test; but  an  amplification  of  the  original 
ground  may  properly  be  considered  as  a 
more  definite  statement  of  what  was  form- 
erly averred,  after  the  expiration  of  the 
year.  Estate  of  Wilson,  117  Cal.  262;  49' 
Pac.  172,  711.  The  trial  court  is  without 
power,  under  this  section,  to  relieve  a 
party  from  the  consequences  of  his  failure- 
to  serve  and  file  his  notice  of  motion  for 
a  new  trial  within  the  time  allowed  by 
law.  Union  Collection  Co.  v.  Oliver,  162. 
Cal.  755;   124  Pac.  435. 

Limitation  of  six  months.  The  extreme 
limit  of  time  within  which  an  application 
may  be  made  to  vacate  a  judgment,  under 
this  section,  is  six  months.  Wharton  v. 
Harlan,  68  Cal.  422;  9  Pac.  727;  Wolff  v. 
Canadian  Pacific  Ry.  Co.,  89  Cal.  332;  26- 
Pac.  825;  Hill  v.  Beatty,  61  Cal.  292. 
Where  the  judgment  is  unauthorized,  the 
court  may  set  it  aside  at  any  time  within, 
six  months  after  its  entry,  even  upon  its- 
own  motion,  and  without  any  request  there- 
for. Kaufman  v.  Shain,  111  Cal.  16;  52; 
Am.  St.  Rep.  139;  43  Pac.  393.  A  judg- 
ment, not  void  on  its  face,  nor  fraudulent,, 
cannot  be  set  aside  on  mere  motion,  unless 
made  within  the  six  months'  limitation  of 
this  section.  People  v.  Goodhue,  80  Cal. 
199;  22  Pac.  66;  People  v.  Harrison,  84 
Cal.  607;  24  Pac.  311;  People  v.  Blake,  84 
Cal.  611;  22  Pac.  1142;  24  Pac.  313;  Moore- 
V.  Superior  Court,  86  Cal.  495;  25  Pac. 
22;  Jacks  v.  Baldez,  97  Cal.  91;  31  Pac- 
899;  Norton  v.  Atchison  etc.  R.  R.  Co.,  97 
Cal.  388;  33  Am.  St.  Rep.  198;  30  Pac. 
585;  32  Pac.  452;  Brackett  v.  Banegas,  99« 


439 


JUDGMENTS — VACATING SIX    MONTHS'    LIMITATION. 


§473 


Cal.  623;  34  Pac.  344;  People  v.  Temple, 

103  Cal.  447;  37  Pac.  414;  People  v.  Dodge, 

104  Cal.  487;  38  Pac.  203;  Butler  v.  Soule, 
124  Cal.  69;  56  Pac.  601;  Estate  of  Eiker- 
enkotter,  126  Cal.  54;  58  Pac.  370;  May  v. 
Hatcher,  130  Cal.  627;  63  Pac.  33.  A  judg- 
ment against  a  dead  corporation  may  be 
vacated  within  six  months  after  its  entry. 
Grossman  v.  Vivienda  Water  Co.,  150  Cal. 
575;  89  Pac.  335.  Where  the  parties  en- 
tered into  a  stipulation  as  to  the  judgment, 
but  it  was  erroneously  rendered  in  excess 
of  such  stipulation,  a  motion,  made  more 
than  six  months  thereattcr,  to  obtain  re- 
lief therefrom,  cannot  be  granted.  Dyer- 
ville  Mfg.  Co.  V.  Heller,  102  Cal.  615;  36 
Pac.  928.  Where  delay  was  assented  to  by 
the  opposing  party,  or  does  not  appear  to 
have  been  injurious  to  his  rights,  the  six 
months'  limitation  should  be  considered  as 
the  only  limit  of  reasonable  time.  Wolff  v. 
Canadian  Pacific  Ry.  Co.,  89  Cal.  332;  26 
Pac.  825.  A  motion  to  vacate  the  judgment 
for  want  of  findings  is  not  limited  to  six 
months  from  the  time  of  the  entry  of  judg- 
ment (Mace  V.  O'Keilley,  70  Cal.  231;  11 
Pac.  721);  and  where  findings  are  neces- 
sary, a  judgment  entered  without  them 
may  properly  be  set  aside  after  a  lapse 
of  more  than  six  months,  this  section  not 
being  applicable.  Savings  and  Loan  Soci- 
ety V.  Thorne,  67  Cal.  53;  7  Pac.  36.  A 
bill  of  exceptions  or  statement,  settled 
after  an  appeal  taken,  may  be  corrected 
by  proper  proceedings,  if  commenced 
within  six  months  after  settlement:  in 
such  cases  the  court  is  empowered  to  settle 
the  bill  or  statement,  that  is,  to  complete 
the  record,  after  and  for  the  purposes  of 
the  appeal  taken.  Baker  v.  Borello,  131 
Cal.  615;  63  Pac.  914.  An  application  to 
amend  or  correct  a  bill  of  exceptions  or 
statement,  made  more  than  six  months 
from  the  date  of  the  certification,  is  too 
late.  Merced  Bank  v.  Price,  152  Cal.  697; 
93  Pac.  866;  Sprigg  v.  Barber,  118  Cal. 
591;  50  Pac.  682.  No  relief  can  be  granted 
to  a  party,  after  service  of  the  proposed 
bill  of  exceptions  and  amendments,  where 
the  prescribed  six  months  in  which  such 
relief  might  be  granted  has  long  since 
passed.  Moultrie  v.  Tarpio,  147  Cal.  376; 
81  Pac.  1112.  The  taking  and  entering  of 
a  default  by  the  clerk  or  by  the  court,  at 
the  instance  of  the  adverse  party,  fixes  the 
beginning  of  the  period  of  six  months 
within  which  the  motion  to  set  aside  the 
default  must  be  made.  Title  Insurance  etc. 
Co.  V.  King  Land  etc.  Co.,  162  Cal.  44; 
120  Pac.  1066.  Application  to  set  aside 
a  judgment  must  be  made  within  six 
months  after  the  entry  thereof,  even 
though  the  mistake,  inadvertence,  sur- 
prise, or  excusable  neglect  has  been  caused 
or  brought  about  by  fraud  practiced  by 
the  party  in  whose  favor  the  judgment  or 
proceeding  was  taken:  after  that  period, 
the    question    of    mistake,    etc.,    whatever 


the  remedy  in  equity  may  be,  cannot  be 
tried  bv  afTidavit  on  motion  for  summary 
relief.  'Wharton  v.  Harlan,  68  Cal.  422;  9 
Pac.  727;  Dverville  Mfg.  Co.  v.  Heller,  102 
Cal.  615;  3^6  Pac.  928.  Where  the  pro- 
posed statement  on  motion  for  a  new  trial 
embodies  the  evidence,  but  does  not  con- 
tain a  specification  of  the  particulars 
wherein  it  is  alleged  to  be  insuflficient  to 
sustain  the  verdict,  prior  to  its  settlement 
by  the  judge,  it  may  be  amended  b}'  the 
insertion  of  such  specifications,  at  any  rea- 
sonable time  after  its  proposal:  the  six 
months'  limitation,  as  provided  by  this 
section,  does  not  apply.  Smith  v.  Stockton, 
73  Cal.  204;  14  Pac.  675.  Where,  after 
a  judgment  by  default,  the  defendant  ap- 
peals on  the  ground  of  defective  service 
by  publication,  the  judgment  will  not  be 
disturbed:  the  remcily  is  by  motion  in 
the  court  below,  within  six  months  after 
the  judgment.  Guy  v.  Ide,  6  Cal.  99;  65 
Am.  Dec.  490.  The  mere  serving  and  filing 
of  a  notice  of  motion,  before  the  expiration 
of  the  six  months,  that  an  application  for 
relief  from  a  judgment  will  be  made,  is 
not  the  making  of  the  application  within 
six  months  (Thomas  v.  Superior  Court,  6 
Cal.  App.  629;  92  Pac.  739):  a  motion  is 
an  application  for  an  order;  and  the  appli- 
cation is  that  which  is  to  be  made  within 
the  six  months.  Brownell  v.  Superior 
Court,  157  Cal.  703;  109  Pac.  91.  The  rule 
of  diligence  required  in  making  the  appli- 
cation does  not  control  the  subsequent  pro- 
ceedings, nor  is  six  months  necessarily  a 
measure  of  reasonable  time  for  the  subse- 
quent diligence:  if  the  application  is  made 
within  six  months,  the  court  is  free  to  dis- 
pose of  it  as  the  exigencies  of  business  and 
the  circumstances  of  the  case  permit. 
Wolff  v.  Canadian  Pacific  Ry.  Co.,  123  Cal. 
535;  56  Pac.  453.  If  a  sufficient  applica- 
tion is  made  within  six  months,  the  matter 
may  be  determined  after  that  time. 
Brownell  v,  Superior  Court,  157  Cal.  703; 
109  Pac.  91.  A  second  application  for  re- 
lief will  not  be  entertained,  unless  made 
within  six  months.  Thomas  v.  Superior 
Court,  6  Cal.  App.  629;  92  Pac.  739. 
Where  the  record  does  not  show  error,  and 
resort  must  be  had  to  evidence  aliunde, 
notice  must  be  given,  of  a  motion  to  amend 
the  judgment,  to  the  parties  to  be  affected 
thereby,  and  this  motion  must  be  made 
within  six  months,  except  where  personal 
service  has  not  been  had,  in  which  case 
the  court  may  grant  relief  within  one  year 
after  entry  of  judgment.  Scamman  v. 
Bonslett,  118  Cal.  93;  62  Am.  St.  Rep.  226; 
50  Pac.  272.  An  equitable  action  to  set 
aside  a  judgment,  on  the  ground  of  fraud 
in  its  procurement,  may  be  made  after  the 
expiration  of  six  mouths.  Estate  of  Hud- 
son, 63  Cal.  454;  California  Beet  Sugar 
Co.  v.  Porter,  68  Cal.  369;  9  Pac.  313;  Ex- 
Mission  Land  etc.  Co.  v.  Flash,  97  Cal. 
610;    32    Pac.    600.     A    judgment    of    the 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


440 


former  probate  court,  procured  by  fraud, 
could  not  be  reached  by  a  mere  motion, 
under  this  section,  unless  it  was  made 
within  six  months  after  the  rendition  of 
judgment:  the  only  remedy  of  the  party 
aggrieved  was  by  an-  independent  suit  in 
equity,  and  the  issuing  and  serving  of  sum- 
mons thereon,  the  matter  having  passed 
beyond  the  jurisdiction  of  the  superior 
court  as  a  court  of  probate.  Dean  v.  Su- 
perior Court,  63  Cal.  473.  A  judgment, 
regular  on  its  face,  cannot  be  set  aside, 
on  motion,  after  six  months  from  the  en- 
try of  judgment,  on  the  ground  of  mis- 
take, inadvertence,  or  excusable  neglect,  in 
not  answering,  or  on  the  ground  that  it 
was  procured  by  fraud  and  without  notice, 
where  the  amended  complaint  in  the  case, 
in  pursuance  of  a  verbal  agreement,  was 
not  personally  served.  Young  v.  Fink,  119 
Cal.  107;  50  Pac.  1060.  The  court  has  no 
power  to  set  aside  the  default  of  a  de- 
fendant, who  has  been  personally  served, 
unless  the  application  therefor  is  made 
within  six  months  after  the  default  was 
entered.  Title  Insurance  etc.  Co.  v.  King 
Land  etc.  Co.,  162  Cal.  44;  120  Pac.  1066. 
A  judgment  by  default  cannot  be  set  aside, 
after  the  expiration  of  the  prescribed  time, 
unless  it  is  void;  and  where  the  court  has 
jurisdiction,  and  the  affidavit  of  publica- 
tion of  summons,  though  defective,  shows 
some  diligence,  and  the  order  therefor  is 
valid,  the  judgment  is  also  valid.  People 
V.  Wrin,  143  Cal.  11;  76  Pac.  646. 

Reasonable  time.  Terms  of  court  are 
now  abolished;  but  the  relief  that  form- 
erly could  be  had  during  a  term  may  be 
sought  within  a  reasonable  time,  which  is 
defined  to  be  six  months,  except  where  per- 
sonal service  has  not  been  had,  in  which 
case  the  court  may  grant  relief  within 
one  year.  People  v.  Greene,  74  Cal.  400; 
5  Am.  St.  Rep.  448;  16  Pac.  197;  Wiggin 
V.  Superior  Court,  68  Cal.  398;  9  Pac.  646; 
Canadian  etc.  Trust  Co.  v.  Clarita  Invest- 
ment Co.,  140  Cal.  672;  74  Pac.  301;  People 
V.  Davis,  143  Cal.  673;  77  Pac.  651.  Where 
an  ap])lication  to  vacate  a  judgment  by 
default  is  made  immediately  after  the  de- 
fault, and  so  soon  that  no  considerable  de- 
lay or  injury  is  occasioned  to  the  plaintiff, 
the  defendant  should  be  given  an  oppor- 
tunitv  to  defend  upon  the  merits.  Grady 
V.  Donahoo,  108  Cal.  211;  41  Pac.  41.  A 
motion  to  vacate  a  judgment  on  the 
ground  that  it  is  void  on  its  face,  is  not 
a  collateral  but  a  direct  attack,  and  such 
motion  may  be  made  within  a  reasonable 
time  after  the  expiration  of  the  time  lim- 
ited bv  this  section.  Reinhart  v.  Lugo,  86 
Cal.  395;  21  Am.  St.  Rep.  52;  24  Pac.  1089; 
People  v.  Thomas,  101  Cal.  571;  36  Pac.  9; 
People  v.  Temple,  103  Cal.  447;  37  Pac. 
414;  People  v.  Dodge,  104  Cal.  487;  38 
Pac.  203;  People  v.  Harrison,  107  Cal.  541; 
40  Pac.  956.  The  superior  court,  in  setting 
aside  an  order  or  judgment  made  inad- 
vertently  or  through  mistake,   must  exer- 


cise its  jurisdiction  within  a  reasonable 
time.  Fabretti  v.  Superior  Court,  77  Cal. 
305;  19  Pac.  481.  "What  is  a  reasonable 
time,  short  of  the  extreme  limit  of  six 
months,  within  which  a  motion  may  be 
made  to  set  aside  a  judgment,  not  void 
upon  its  face,  must  depend  somewhat  on 
the  circumstances  of  each  particular  case, 
all  of  which  should  be  considered  by  the 
court,  and  is  not  definitely  determined, 
further  than  that  it  will  not  extend  beyond 
the  limit  fixed  by  this  section.  People  v. 
Temple,  103  Cal.  447;  37  Pac.  414;  Wolff 
V.  Canadian  Pacific  Ry.  Co.,  89  Cal.  332; 
26  Pac.  825;  Smith  v.  Pelton  Water  Wheel 
Co.,  151  Cal.  394;  90  Pac.  932,  1135.  The 
question  is  one  largely  within  the  discre- 
tion of  the  trial  court.  George  Frank  Co. 
V.  Leopold  &  Ferron  Co.,  13  Cal.  App.  59; 
108  Pac.  878.  Twelve  years  from  the  ren- 
dition of  the  judgment  is  not  a  reasonable 
time.  People  v.  Temple,  103  Cal.  447;  37 
Pac.  414.  If,  under  this  section,  a  defend- 
ant may  be  relieved,  on  motion,  from  a 
default  judgment  taken  against  him 
through  his  mistake  or  excusable  neglect, 
provided  his  motion  is  made  within  a  rea- 
sonable time,  not  exceeding  six  months, 
a  fortiori  he  should  be  relieved,  on  motion 
made,  within  the  same  time,  when  he  is 
not  guilty  of  any  neglect.  Norton  v. 
Atchison  etc.  R.  R.  Co.,  97  Cal.  388;  33  Am. 
St.  Rep.  198;  30  Pac.  585;  32  Pac.  452. 
Where  the  complaint  is  unverified,  and 
the  court  inadvertently  strikes  out  the 
answer  on  motion  of  the  plaintiff,  the  de- 
fendant not  having  appeared,  and  judg- 
ment goes  for  the  plaintiff,  and  he  moves 
promptly  to  vacate  the  judgment  on  dis- 
covery of  the  error,  the  allowance  of  the 
motion  does  not  prejudice  any  of  the  de- 
fendant's rights.  Bernheim  v.  Cerf,  123 
Cal.  170;  55  Pac.  759;  Whitney  v.  Superior 
Court,  147  Cal.  536;  82  Pac.  37. 

Limitation  one  year,  in  absence  of  per- 
sonal service.  One  who  has  only  con- 
structive notice  of  a  suit  brought  against 
him  may  invoke  the  benefit  of  this  sec- 
tion, and  defend  upon  the  merits  (Zobel 
V.  Zobel,  151  Cal.  98;  90  Pac.  191);  and 
the  judgment  may  be  vacated,  within  the 
time  prescribed,  though  the  proceedings  by 
publication  were  regular  and  the  judgment 
is  valid  upon  its  face.  Fox  v.  Townsend, 
149  Cal.  659;  87  Pac.  82.  The  one-year 
clause  of  this  section  applies  to  cases 
where  service  was  by  publication,  and  may 
possibly  apply  where  personal  service  was 
of  such  character  as  to  be  equivalent  to  no 
service  at  all;  but  it  does  not  apply  where 
the  summons  was  personally  served.  Young 
v.  Fink,  119  Cal.  107;  50  Pac.  1060.  Ser- 
vice by  publication,  under  the  order  of 
court,  has  the  same  effect  as  service  by 
either  of  the  other  statutory  modes,  ex- 
cept that,  where  service  is  by  publication 
alone,  the  defendant,  on  a  proper  showing, 
may  be  allowed  to  answer  to  the  merits 
at    any    time    within    one    year   after    the 


441 


JUDGMENTS — VACATING REASONABLE    TIME ONE    YEAR, 


§473 


rendition  of  iudgment.  Dunlap  v.  Steere, 
92  Cal.  344;  27  Am.  St.  Kep.  143;  16  L.  R.  A. 
361;  28  Pac.  563.  A  judgment  by  de- 
fault should  be  set  aside,  as  inadvertently 
entered,  on  motion  made  within  one  year 
after  the  entry  thereof,  where  service  was 
by  publication,  but  no  copy  of  the  sum- 
mons, by  mail  or  otherwise,  was  served  on 
the  defendants,  who  were  non-residents 
and  whose  residence  was  known,  and  the 
order  for  publication  required  copies  of 
the  summons  to  be  mailed  to  each  of  them. 
Schart  v.  Schart,  116  Cal.  91;  47  Pac.  927. 
A  judgment  by  default,  not  void  on  its 
face,  where  service  was  by  publication, 
cannot  be  set  aside  on  motion  made  more 
than  one  year  after  the  entry  of  judg- 
ment. Howard  v.  McChesney,  103  Cal.  536; 
37  Pac.  523.  A  judgment  by  default  can- 
not be  set  aside  on  motion,  not  made 
within  a  year  after  the  entry  thereof, 
w^here  the  ground  of  the  motion  is,  not 
that  summons  was  not  duly  served  on  the 
defendant,  but  that  the  record  does  not 
show  service,  and  there  is  no  showing  of 
any  defense  to  the  action  or  injury  to  the 
mover.  Whitney  v.  Daggett,  108  Cal.  232; 
41  Pac.  471.  A  defendant,  not  served  with 
summons,  against  whom  a  false  return  of 
service  thereof  was  made,  has  the  abso- 
lute right,  upon  application  within  six 
months  after  the  entry  of  judgment,  and 
upon  proof  of  the  facts,  to  have  the  judg- 
ment vacated  for  want  of  jurisdiction,  and 
the  service  of  summons  quashed,  without 
condition:  such  application  is  not  within 
this  section.  Waller  v.  Weston,  125  Cal. 
201;  57  Pac.  892.  A  judgment  upon  a 
fraudulent  claim,  entered  upon  the  de- 
fendant's default,  after  publication  of 
summons,  is  not  void,  and  cannot  be  set 
aside  upon  motion  not  made  within  one 
year.  Dunlap  v.  Steere,  92  Cal.  344;  27 
Am.  St.  Rep.  143;  16  L.  R.  A.  361;  28 
Pac.  563.  Where  an  amended  complaint 
was  not  served  upon  the  defendant  a 
judgment  entered  thereon  is  void,  and  may 
be  vacated,  upon  motion,  within  one  year 
after  its  entry.  Reinhart  v.  Lugo,  86  Cal. 
395;  21  Am.  St.  Rep.  52;  24  Pac.  1089. 
A  motion  to  vacate  a  judgment  cannot  be 
made  after  the  expiration  of  six  months, 
or  with  respect  to  one  ground  for  setting 
aside  the  default,  after  one  year,  unless  it 
is  void  on  its  face.  Norton  v.  Atchison 
etc.  R.  R.  Co.,  97  Cal.  388;  33  Am.  St.  Rep. 
198;  30  Pac.  585;  32  Pac.  452.  This  sec- 
tion is  wholly  independent  of  the  remedy 
by  appeal,  and  the  year's  limitation  pre- 
scribed is  not  affected  by  the  shortening 
of  the  time  for  appeal.  Fox  v.  Townsend, 
2  Cal.  App.   193;  S3  Pac.  272. 

Constructive  service  of  process.  Ser- 
vice of  summons  by  mailing,  pursuant  to 
an  order  for  its  publication,  is  not  personal 
service;  and  a  defendant  so  served  is  en- 
titled to  have  his  default  set  aside,  with- 
out any  showing  of  mistake,  inadvertence, 
surprise,     or     excusable     neglect      (Lilly- 


Brackeit  Co.  v.  Sonnemann,  157  Gal.  192; 
21  Ann.  Cas.  1279;  106  Pac.  715);  nor  is 
service  of  summons  upon  a  foreign  cor- 
poration personal,  and  the  court  must, 
upon  apj)lication  made  in  due  time,  relieve 
the  defendant  from  a  judgment  entered 
against  it:  in  such  a  case  the  court  has  no 
discretion.  Holiness  Church  v.  Metropoli- 
tan Church  Ass'n,  12  Cal.  App.  445;  107 
Pac.  633.  A  motion  to  vacate  a  judgment 
by  default,  based  upon  constructive  ser- 
vice by  publication,  may  be  made,  even 
after  the  expiration  of  ten  years  or  more 
after  its  entry,  where  no  jurisdiction  was 
ever  acquired,  and  the  judgment  is  erro- 
neous and  void.  People  v.  Pearson,  76  Cal. 
400;  18  Pac.  424. 

Vacation  of  judgment  of  dismissal.  A 
judgment  of  dismissal,  sending  plaintiff 
out  of  court  without  the  relief  to  which 
he  is  entitled,  is  a  judgment  against  him, 
and  in  favor  of  the  defendant;  and  if  he 
consents  to  the  dismissal  to  his  injury, 
under  an  excusable  mistake  of  fact,  he  is 
not  barred  of  relief.  Palace  Hardware  Co. 
V.  Smith,  134  Cal.  381;  66  Pac.  474.  Even 
if  §  581,  post,  which  authorizes  a  dismissal 
when  the  plaintiff  abandons  the  case,  were 
mandatory,  the  party  in  default  may  apply 
for  relief  under  this  section,  w^here  his 
neglect  is  excusable.  Rosenthal  v.  Mc- 
Mann,  93  Cal.  505;  29  Pac.  121.  Where 
an  action  is  dismissed  upon  the  plaintitt  s 
direction,  it  is  within  the  discretion  of  the 
court  to  vacate  such  dismissal,  although 
entered  by  the  clerk.  Wolters  v.  Rossi,  126 
Cal.  644;  59  Pac.  143.  A  stipulation  for 
the  dismissal  of  an  action,  signed  only  by 
the  plaintiff,  and  not  by  his  attorney  of 
record,  and  made  without  his  consent,  is 
invalid,  and  the  court  should  correct  its 
erroneous  judgment  of  dismissal,  based 
upon  such  stipulation,  by  setting  the  judg- 
ment aside,  upon  motion  properly  made  to 
that  effect  by  plaintiff,  through  his  attor- 
ney. Toy  V.  Haskell,  128  Cal.  558;  79  Am. 
St.  Rep.  70;  61  Pac.  89.  A  motion  to  dis- 
miss an  action  for  want  of  prosecution  is 
one  resting  largely  in  the  discretion  of  the 
court,  and  an  order  granting  it  will  not  be 
interfered  with  on  appeal,  unless  such  dis- 
cretion is  abused.  Moore  v.  Thompson, 
138  Cal.  23;  70  Pac.  930.  There  is  no 
error  in  refusing  to  set  aside  a  judgment 
dismissing  an  action  for  failure  to  file 
an  amended  complaint  within  the  time 
allowed,  where  the  affidavits  and  counter- 
affidavits  upon  the  application  do  not  show 
an  abuse  of  discretion.  Rauer  v.  Wolf, 
115  Cal.  100:  46  Pac.  902. 

Decree  in  divorce  proceedings.  The  su- 
perior court  has  jurisdiction  to  vacate  a 
judgment  of  divorce  by  other  proceedings 
than  a  motion  for  a  new  trial.  Storke  v. 
Storke,  111  Cal.  514;  44  Pac.  173.  A  final 
decree  of  divorce,  entered  without  a  pre- 
vious interlocutory  decree,  is  wholly  void 
as  a  final  judgment  granting  an  immedi- 
ate   divorce,    and    it    is    within    the    power 


^473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


442 


of  the  superior  court,  at  any  time,  'on  tlie 
motion  of  either  party,  or  of  its  own  mo- 
tion, to  declare  it  null  in  so  far  as  it  pur- 
ports to  be  of  such  effect;  but  such  decree 
may  be  vacated,  under  this  section,  so  far 
as  it  purports  to  award  an  absolute  di- 
vorce, leaving  the  judgment,  in  so  far  as 
it  may  determine  that  the  plaintiff  is  en- 
titled to  a  divorce,  neither  modified  nor 
affected  by  an  order  vacating  such  decree. 
Grannis  v.  Superior  Court,  146  Cal.  245; 
106  Am.  St.  Eep.  23;  79  Pac.  891.  It  may 
nevertheless  stand  as  a  valid  interlocutory 
decree,  if,  in  form,  it  is  sufficient  there- 
for. Claudius  v.  Melvin,  146  Cal.  257;  79 
Pac.  897.  The  authority  of  the  court  to 
vacate  a  judgment  of  divorce,  on  mere 
motion,  is  limited,  by  this  section,  to  six 
months  after  its  entry.  Storke  v.  Storke, 
116  Cal.  47;  47  Pac.  869;  48  Pac.  121. 
Within  six  months  after  the  rendition  of 
a  decree  of  divorce,  the  trial  court  may 
relieve  the  party  against  whom  judgment 
was  rendered,  on  the  ground  of  mistake, 
inadvertence,  surprise,  or  excusable  ne- 
glect. Deyoe  v.  Superior  Court,  140  Cal. 
476;  98  Am.  St.  Eep.  73;  74  Pac.  28;  Es- 
tate of  Wood,  137  Cal.  129;  69  Pac.  900. 
After  the  court  has  rendered  and  entered 
judgment  on  an  issue  presented  in  an 
action  for  divorce,  the  judgment  cannot 
be  vacated,  except  by  such  proceedings  as 
would  authorize  the  court  to  vacate  a 
judgment  in  any  other  action.  Storke  v. 
Storke,  116  Cal.  47;  47  Pac.  869;  48  Pac. 
121.  If  the  defendant,  in  an  action  for 
divorce,  is  served  by  publication,  he  may 
apply  for  relief,  under  this  section,  at  any 
time  within  one  year  from  the  entry  of 
the  interlocutory  decree:  after  that  time, 
the  final  decree  must  stand.  Andreen  v. 
Andreen,  15  Cal.  App.  728;  115  Pac.  761. 
The  court  should  be  very  liberal  in  grant- 
ing applications  to  set  aside  defaults  in 
divorce  actions,  where  it  appears  at  all 
probable  that  there  was  no  service,  either 
personal  or  by  publication.  McBlain  v. 
McBlain,  77  Cal.  507;  20  Pac.  61;  Cot- 
trell  V.  Cottrell,  83  Cal.  457;  23  Pac.  531. 
There  is  no  abuse  of  discretion  in  deny- 
ing a  motion  to  set  aside  a  judgment  by 
default  in  a  divorce  case,  where  the  evi- 
dence adduced  thereupon  is  conflicting. 
Morton  v.  Morton,  117  Cal.  443;  49  Pac. 
557.  An  action  to  procure  a  judgment  of 
divorce  is  a  purely  personal  action,  which 
cannot  survive  the  death  of  either  party; 
and  where  the  plaintiff  in  such  an  action 
dies  subsequently  to  the  entry  of  a  judg- 
ment decreeing  a  divorce  in  her  favor,  the 
court  is  deprived  of  all  power  to  review 
its  action  and  determine  her  right  to  a 
divorce.  Kirschner  v.  Dietrich,  110  Cal. 
502;  42  Pac.  1064.  Where  a  child  is 
adopted  subsequently  to  a  decree  of  di- 
vorce, the  superior  court  thereby  loses 
jurisdiction  to  modify  the  decree  relat- 
ing to  the  child's  custody.  Younger  v. 
Younger,   106   Cal.   377;    39   Pac.    779.     In 


an  action  of  divorce,  where  service  is  by 
publication,  but  the  defendant,  prior  to 
the  beginning  of  the  action,  leaves  the 
state  with  the  children  of  the  marriage, 
and  the  court  grants  a  decree,  it  has  no 
jurisdiction  to  provide  therein  for  alimony 
or  support  of  the  plaintiff,  or  for  the  sup- 
port, custody,  or  control  of  the  children, 
if  they  are  in  a  foreign  jurisdiction,  and 
the  judgment  may  be  vacated  upon  de- 
fendant's motion,  without  reference  to  this 
section.  De  la  Montanya  v.  De  la  Mon- 
tanya,  112  Cal.  101;  53  Am.  St.  Eep.  165; 
32  L.  E.  A.  82;  44  Pac.  345.  Upon  a 
wife's  motion  to  vacate  a  decree  of  di- 
vorce, where  the  petition  states  that  she 
obtained  an  order  for  the  payment  of 
counsel  fees  upon  the  motion,  but  does  not 
state  the  grounds  of  her  motion,  nor  the 
facts  on  which  she  relied  for  support,  all 
presumptions  are  in  favor  of  the  jurisdic- 
tion of  the  court;  and  if  the  period  of 
six  months  allowed  by  this  section  has  not 
elapsed,  it  will  be  presumed  that  she  at- 
tempted to  make  a  motion  for  relief  under 
this  section.  Grannis  v.  Superior  Court, 
143  Cal.  630;  77  Pac.  647.  Pending  a 
decision  in  an  action  for  divorce,  where 
the  parties  enter  into  a  stipulation  fixing 
their  property  rights,  but  the  court  de- 
clines to  incorporate  such  stii^ulation  in 
the  judgment,  the  court  has  no  jurisdic- 
tion, under  this  section,  upon  a  motion 
made  more  than  six  months  after  the 
entry  of  the  judgment,  to  order  it  to  be 
amended  by  incorporating  such  stipulation 
therein.  Egau  v.  Egan,  90  Cal.  15;  27  Pac. 
22.  A  decree  for  the  permanent  mainte- 
nance of  a  wife  and  child  when  living  to- 
gether, may  be  modified  by  the  court,  but 
the  modified  decree  cannot  be  attacked  by 
a  petition  for  a  new  modification  thereof, 
for  matters  occurring  before  its  rendition, 
on  a  mere  affidavit  which  shows  no  cir- 
cumstance of  mistake,  inadvertence,  sur- 
prise, or  excusable  neglect.  Smith  v. 
Smith,  113  Cal.  268;  45  Pac.  332.  A  judg- 
ment by  default,  in  an  action  for  divorce 
on  the  ground  of  the  adultery  of  the  wife, 
assigning  to  the  husband  all  the  commu- 
nity property,  and  awarding  to  him  the 
four  minor  children,  three  of  whom  are 
girls,  the  eldest  only  eight  years  of  age, 
is  a  harsh  judgment,  and,  upon  motion  to 
vacate  it,  the  court  should  be  prompt 
to  set  it  aside,  and  allow  the  defendant 
to  answer,  so  that  the  case  may  be  heard 
and  determined  on  the  merits.  Mulkey  v. 
Mulkey,  100  Cal.  91;  34  Pac.  621.  In  an 
action  for  divorce,  as  in  any  other,  where 
the  defendant  makes  default,  and  suffers 
judgment  upon  a  mere  ex  parte  showing, 
his  remedy,  in  seeking  relief,  is  under  this 
section,  and  not  by  motion  for  a  new  trial 
(Foley  V.  Foley,  120  Cal.  33;  65  Am.  St. 
Eep.  147;  52  Pac.  122);  and  where  the 
question  of  alimony  is  at  issue,  and  there 
is  no  finding  and  the  decree  is  silent  on 
the  subject,  the  court,  after  entry  of  judg- 


443 


RELIEF — ORDERS  IN   PROBATE — STIPULATION — TERMS. 


§473 


ment,  has  no  further  jurisdiction  over  the 
parties  or  the  subject-matter;  and  the  ap- 
pearance of  the  defendant  in  the  subse- 
quent matter  of  a  motion  for  permanent 
alimony  does  not  have  the  effect  of  re- 
opening the  judgment  or  authorizing  its 
amendment  by  motion.  O'Brien  v.  O'Brien, 
124  Cal.  422;  57  Pac.  225.  In  order  to 
set  aside  a  judgment  by  default  in  an 
action  of  divorce,  no  affidavit  of  merits 
is  required  (McBlain  v.  McBlain,  77  Cal. 
507;  20  Pac.  61;  Mulkey  v.  Mulkey,  100 
Cal.  91;  34  Pac.  (521);  and  there  is  no 
statutory  provision  requiring  that  proof 
of  any  other  fact  shall  be  made  by  aflS- 
davit,  nor  is  there  any  decision  of  the 
supreme  court  to  that  effect.  Cottrell  v. 
Oottrell,  83  Cal.  457;  23  Pac.  531. 

Appointment  of  guardians.  Upon  a  mo- 
tion, by  a  person  entitled  to  letters  of 
guardianship  of  the  person  of  a  minor,  to 
set  aside  an  order  granting  letters  to  an- 
other person,  made  without  the  knowledge 
or  consent  of  the  moving  party,  no  further 
affidavit  of  merits  is  necessary  than  the 
showing  that  she  is  a  competent  and  fit 
person  to  have  the  care,  control,  and  cus- 
tody of  such  minor.  Guardianship  of  Van 
Loan,  142  Cal.  423;  76  Pac.  37.  Where 
the  record  discloses  that  the  court  had 
no  power  to  make  the  order  appointing  a 
guardian,  such  order  is  void  upon  its  face, 
and  it  can  be  attacked  at  any  time.  Guar- 
dianship of  Eikerenkotter,  126  Cal.  54;  58 
Pac.  370. 

Orders  in  probate.  Relief  may  be  had 
in  probate  matters,  under  this  section 
(Levy  V.  Superior  Court,  139  Cal.  590;  73 
Pac.  417),  which  contemplates  a  motion  in 
the  cause  in  which  the  default  was  taken, 
and  not  a  separate  suit  with  separate 
pleadings.  Estate  of  Griffith,  84  Cal.  107; 
23  Pac.  528;  24  Pac.  381.  A  probate  order 
is  not  "taken,"  within  the  meaning  of  this 
section,  until  the  formal  order  is  signed 
and  filed.  Brownell  v.  Superior  Court,  157 
■Cal.  703;  109  Pac.  91.  No  relief  can  be 
granted  to  the  heirs,  upon  the  ground  that 
they  had  no  notice  or  knowledge  of  pro- 
ceedings for  the  sale  of  the  real  property 
of  the  decedent,  where  the  facts  show  that 
they  did  have  notice,  and  where  the  statu- 
tory mode  of  acquiring  jurisdiction  was 
followed.  Estate  of  Leonis,  138  Cal.  194; 
71  Pac.  171.  The  probate  court  has  not 
power  to  revoke  its  decree,  after  it  has 
become  final  by  the  lapse  of  time  to  ap- 
peal therefrom  (Estate  of  Nolan,  145  Cal. 
559;  79  Pac.  428);  nor  has  it  power  to 
vacate  an  order  of  sale  of  real  property, 
made  on  constructive  notice,  whore  it  is 
supported  by  an  uuassailed  finding  that 
the  sale  was  for  the  best  interests  of  the 
estate  (Estate  of  Leonis,  138  Cal.  194;  71 
Pac.  171);  but  it  has  power  to  grant  the 
motion  of  a  minor  heir  to  set  aside  the 
confirmation  of  a  sale,  on  the  ground  he 
lias  been  defrauded  (Application  of  .John- 
son,  7   Cal.  App.   436;   94  Pac.   592);    and 


to  vacate  a  decree  of  distribution,  upon 
a  proper  showing  (Pedroreua  v.  Superior 
Court,  80  Cal.  144;  22  Pac.  71);  and  to 
relieve  the  preterniitte<l  minor  grandchild 
of  a  deceased  testator  from  the  effects  of 
a  decree  of  distribution,  under  the  terms 
of  the  will,  on  the  ground  of  inadvertence 
and  excusable  neglect  (Estate  of  Koss,  140 
Cal.  282;  73  Pac.  976);  and  to  set  aside 
a  decree  of  final  discharge  of  an  admin- 
istrator, made  and  entered  inadvertently 
ami  ex  parte  (Wiggin  v.  Superior  Court, 
68  Cal.  398;  9  Pac.  646);  and  to  vacate 
and  set  aside  an  order  settling  the  final 
account  of  the  administrator  and  dis- 
tributing the  estate,  upon  application  of 
the  minor  heirs,  made  within  the  time  pre- 
scribed (Estate  of  Hickey,  129  Cal.  14;  61 
Pac.  475) ;  and  to  vacate  an  order  setting 
aside  a  homestead,  on  application  of  the 
executors  and  an  heir,  made  within' six 
months,  on  the  ground  of  inadvertence, 
surprise,  and  excusable  neglect.  Levy  v. 
Superior  Court,  139  Cal.  590;  73  Pac.  417. 
The  superior  court,  in  an  equitable  pro- 
ceeding, may  set  aside  a  decree  of  a  pro- 
bate court,  obtained  by  fraud,  and  without 
notice  to  the  party  against  whom  it  was 
rendered:  such  a  decree  is  void,  and  the 
plaintiff  is  entitled  to  relief  beyond  any 
which  the  court  could  give  him  under  this 
section,  and  to  have  the  judgment  set 
aside  and  annulled  absolutely.  Baker  v. 
O'Eiordan,  65  Cal.  368;  4  Pac.  232. 

Relief  against  judgments  on  stipulations. 
A  motion  to  set  aside  a  judgment  rendered 
on  an  invalid  stipulation  need  not  be  in 
accordance  with  this  section.  Tov  v.  Has- 
kell, 128  Cal.  558;  79  Am.  St.  Eep.  70;  61 
Pac.  89.  The  court  has  power  to  relieve 
parties  from  the  effects  of  a  stipulation 
which  admits  as  a  fact  that  which  is  not 
true,  if  the  application  therefor  is  made 
in  time.  Ward  v.  Clay,  82  Cal.  502;  23 
Pac.  50,  227.  Where  there  is  matter  of 
record  by  which  an  amendment  can  be 
made,  it  is  within  the  power  of  the  court 
to  make  it,  notwithstanding  the  rule  as 
to  time  laid  down  in  this  section,  and 
this  applies  to  clerical  misprisions;  but  a 
judgment  in  excess  of  a  stipulation  is  erro- 
neous, and  the  error  being  one  of  law  com- 
mitted at  the  trial,  the  remedy  is  either 
by  motion  for  a  new  trial  or  by  appeal, 
and  not  by  a  motion  under  this  section. 
Dyerville  Mfg.  Co.  v.  Heller,  102  Cal.  615; 
36  Pac.  928.  Where  judgment  is  rendered 
in  an  action  involving  title  to  real  prop- 
erty, in  which  the  defendant  has  trans- 
ferred his  interest,  and  entered  into  a 
fraudulent  stipulation  with  the  plaintiff 
for  the  entry  of  judgment  in  his  favor, 
the  motion  of  the  successor  in  interest  of 
the  defendant,  to  set  aside  and  vacate 
such  judgment,  is  properly  granted.  Cres- 
cent Canal  Co.  v.  Montgomery,  124  Cal. 
134;  56  Pac.  797. 

Imposition  of  terms  as  condition  for 
granting    relief.     The    payment    of    costs 


473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


444 


was  formerly  required  as  a  condition 
precedent  to  granting  an  application  to 
set  aside  a  judgment  by  default  (Roland 
V.  Krevenhagen,  18  Cal.  455;  People  v. 
O'Connell,  23  Cal.  281;  Bailey  v.  Taaffe, 
29  Cal.  422;  Leet  v.  Grants,  36  Cal.  288; 
Watson  V.  San  Francisco  etc.  R.  R.  Co., 
41  Cal.  17;  Swift  v.  Canovan,  47  Cal.  86; 
Heermanr  v.  Sawyer,  48  Cal.  562;  Ryan 
V.  Mooney,  49  Cal.  33;  Clune  v.  Sullivan, 
56  Cal.  249) ;  and  judgment,  vacated  upon 
the  payment  of  costs,  remained  in  force 
until  the  costs  were  paid.  Gregory  v. 
Haynes,  21  Cal.  443.  A  complaint  might 
have  been  amended  by  striking  out  the 
names  of  some  of  the  plaintiffs  therefrom, 
without  the  payment  of  costs  (Tormey  v. 
Pierce,  49  Cal.  306) ;  but  the  payment  of 
costs  is  no  longer  required.  Cottrell  v. 
Cottrell,  83  Cal.  457;  23  Pae.  531.  Con- 
ditions may  be  imposed  in  granting  relief 
under  this  section  (McCarty  v.  Wilson,  2 
Cal.  App.  154;  83  Pac.  170);  but  the  court 
has  no  power  to  impose  costs  as  a  condi- 
tion to  the  vacation  of  the  judgment. 
Waller  v.  Weston,  125  Cal.  201;  57  Pac. 
892.  The  allowance  of  the  application  to 
set  aside  a  judgment  by  default  should 
be  u^ion  such  terms  and  conditions  as  the 
circumstances  may  warrant.  Pearson  v. 
Drobaz  Fishing  Co.,  99  Cal.  425;  34  Pac. 
76.  It  is  not  an  abuse  of  discretion  for 
the  court  to  impose  terms  upon  which  the 
defendant  may  be  allowed  to  amend  his 
answer,  where  there  was  a  delay  of  two 
years,  and  the  plaintiff  and  his  counsel 
come  a  considerable  distance  to  the  place 
of  trial,  and  a  further  continuance  is 
necessary.  Culverhouse  v.  Crosan,  94  Cal. 
544;  29  Pac.  1100.  Where  the  circum- 
stances justify  it,  the  court  does  not  abuse 
its  discretion  in  vacating  a  judgment  by 
default  without  imposing  terms  as  a  con- 
dition. Robinson  v.  Merrill,  80  Cal.  415; 
22  Pac.  260.  Where  a  party  is  subjected 
to  delay  or  inconvenience  in  having  a  de- 
fault set  aside,  he  can  be  compensated 
therefor  by  the  terms  which  the  court 
will  impose  as  a  condition  of  granting 
the  motion  (Nicoll  v.  Weldon,  130  Cal. 
666;  63  Pac.  63);  and  if  the  delay  is  sat- 
isfactorily explained,  the  court  has  power, 
upon  terms,  to  accept  such  explanation, 
and  to  make  a  final  order  granting  the 
motion.  Wolff  v.  Canadian  Pacific  Ry.  Co., 
123  Cal.  535;  56  Pac.  453.  An  amendment 
may  be  permitted,  upon  such  terms  as 
may  be  just  (Williams  v.  Mver,  150  Cal. 
714;  89  Pac.  972),  on  the  trial  of  a  case 
within  the  original  jurisdiction  of  the  su- 
perior court;  it  is  also  allowable  on  a  trial 
de  novo  within  its  appellate  jurisdiction. 
Ketchum  v.  Superior  Court,  65  Cal.  494; 
4  Pac.  492.  The  phrase,  "on  such  terms 
as  may  be  just,"  does  not  authorize  the 
refusal  of  the  relief  sought,  when  the 
statutory  conditions  are  met;  but  it  does 
authorize  the  imposition  of  such  terms  as 
may  be  necessary   to   do   complete  justice 


between  the  parties.  Gray  v.  Lawlor,  151 
Cal.  352;  12  Ann.  Cas.  990;  90  Pac.  691^ 
No  error  is  committed  in  permitting  an 
amendment  of  the  complaint,  upon  terms,, 
where  it  does  not  operate  as  a  surprise  to 
the  defendant,  nor  work  any  hardship- 
upon  him.  Riverside  Land  etc.  Co.  v.  Jen- 
sen, 73  Cal.  550;  15  Pac.  131;  Bean  v. 
Stoneman,  104  Cal.  49;  37  Pac.  777;  38 
Pac.  39.  After  a  motion  for  a  nonsuit,  the 
court  may,  upon  terms,  allow  an  amend- 
ment of  the  declaration,  where  it  will  not 
ojjerate  as  a  surprise  upon  the  defendants; 
but  if  this  is  not  done,  the  plaintiff'  cannot 
recover.  Farmer  v.  Cram,  7  Cal.  135.  In 
setting  aside  a  default  judgment,  it  is- 
proper  to  impose  terms  which  will  leave 
the  plaintiff  secure  in  his  right  to  subject, 
certain  property  of  the  defendant  to  satis- 
faction of  any  judgment  he  may  obtain.. 
Douglass  V.  Todd,  96  Cal.  655;  31  Am.  St. 
Rep.  247;  31  Pac.  623.  Where  the  court 
allows  the  proposed  amendment  of  the. 
complaint,  upon  a  condition  which  is  not 
accepted,  the  plaintiff  cannot  afterwards 
complain  of  the  denial  of  his  application,, 
where  the  court  does  not  abuse  its  discre- 
tion. Wise  V.  Wakefield,  118  Cal.  107;  50 
Pac.  310;  Eltzroth  v.  Ryan,  91  Cal.  584;  27 
Pac.  932.  Where,  by  reason  of  the  defend- 
ant's proposed  amendments  to  his  answer,, 
the  court  is  satisfied  that  the  plaintiff  is- 
taken  by  surprise,  and  that  he  requires 
further  time  to  meet  the  defense,  it  can 
continue  the  case,  and  impose  such  terms- 
as  will  compensate  the  plaintiff  for  the  ex- 
jjeuse  and  delay  caused  thereby.  Guidery 
V.  Green,  95  Cal.  630;  30  Pac.  786.  Where 
a  judgment  is  reversed  on  appeal,  with 
leave  to  the  plaintiff  to  amend,  the  lower- 
court  has  no  power  to  make  a  conditional 
order  requiring  the  plaintiff  to  pay  the- 
costs  of  the  appeal,  with  its  accruing  costs,, 
as  a  condition.  Dixon  v.  Risley,  114  Cal- 
204;  46  Pac.  5. 

Waiver  of  objections  and  of  relief.  A 
party  may  waive  and  abandon  his  right 
to  relief  under  this  section,  by  not  press- 
ing his  motion  to  a  ruling  by  the  court. 
Johnson  v.  German  American  Ins.  Co.,  150 
Cal.  336;  88  Pac.  985;  King  v.  Dugan,  150 
Cal.  258;  88  Pac.  925.  Where  counsel  for 
both  sides  are  present  at  the  hearing  of 
the  motion  to  vacate  a  judgment,  and  con- 
test the  same,  there  is  a  waiver  of  written, 
notice.  Acock  v.  Halsey,  90  Cal.  215;  27 
Pac.  193;  Toy  v.  Haskell,  128  Cal.  558;  79 
Am.  St.  Rep.  70;  61  Pac.  89.  A  default 
is  waived,  where  the  party  subsequently 
a])pears,  files  pleadings,  and  goes  to  trial 
upon  the  merits.  Sawtelle  v.  Muncy,  116 
Cal.  435;  48  Pac.  387.  A  party  defend- 
ant, by  making  a  motion  to  vacate  a  judg- 
ment against  it,  on  the  ground  that  the 
affidavit  of  publication  of  summons  was 
insufficient,  and  that  the  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause 
of  action,  thereby  puts  in  a  general  ap- 
pearance,  instead    of   a   special    one,    and. 


445 


PRESUMPTIONS — APPExVLABLB   ORDERS,    DISPOSITION   OF. 


§473 


waives  all  objection  to  the  judgment  for 
want  of  jurisdiction  of  his  person.  Se- 
curity Loan  etc.  Co.  v.  Boston  etc.  Fruit 
Co.,  126  Cal.  41S;  58  Pac.  941;  5!)  Pac.  296. 
Presumptions  as  to  judgment.  Every 
presumption  will  be  indulged  in  favor  of 
the  validity  of  a  judgment:  any  condition 
of  facts  consistent  with  its  validity  will 
be  presumed  to  have  existed,  rather  than 
one  that  will  defeat  it.  Canadian  etc. 
Trust  Co.  V.  Clarita  etc.  Investment  Co., 
140  Cal.  672;  74  Pac.  301.  Recitals  in  a 
decree  of  foreclosure  must  be  deemed  to 
be  true,  and  to  import  absolute  verity, 
where  there  is  nothing  in  the  judgment 
roll  to  contradict  or  impeach  them:  they 
are  conclusive  as  to  a  tenant  in  possession 
under  the  mortgagor,  who  moves  to  vacate 
the  decree  for  want  of  jurisdiction  over 
the  person  or  the  subject-matter.  Butler  v. 
Soule,  124  Cal.  69;  56  Pac.  601.  Where 
the  plaintiff,  in  an  action  to  quiet  title 
under  the  McEnerney  Act,  makes  the  re- 
quired affidavit  as  to  persons  claiming  any 
interest  in  the  property  adversely  to  him, 
the  findings  and  decree  are  not  conclusive 
of  the  truth  of  such  affidavit,  if  shown  to 
be  false  and  fraudulent  as  against  a  party 
not  served  with  summons,  who  asks  relief 
under  this  section,  and  directly  and  un- 
equivocally states  that  the  plaintiff  knew, 
at  the  commencement  of  the  action,  and 
when  he  took  his  decree,  that  the  claim- 
ant had  an  interest  in  the  property.  Da- 
vidson V.  All  Persons,  18  Cal.  App.  723; 
124  Pac.  570.  Where  there  is  nothing  in 
the  record  to  show  the  character  of  a  pro- 
posed amendment,  it  will  be  presumed  that 
the  action  of  the  court  in  refusing  the 
application  to  amend  is  correct.  Jessup 
V.  King,  4  Cal.  331.  Where  an  amended 
answer,  filed  in  the  name  of  a  deceased 
defendant,  on  the  day  when  the  executors 
were  substituted,  recites  that  it  was  filed 
by  leave  of  the  court,  and  is  found  among 
the  pleadings,  and  it  appears  that  the 
cause  was  tried  without  objection,  it  must 
be  presumed,  upon  appeal,  that  it  was 
treated  as  a  pleading  in  the  case,  although 
filed  after  the  defendant's  death,  and  no 
order  of  the  court  allowing  the  amend- 
ment appears  in  the  record.  Frazier  v. 
Murphy,  133  Cal.  91;  65  Pac.  326.  Where 
a  judgment  by  default  is  rendered  against 
the  defendant,  and  an  appeal  is  taken 
from  an  order  denying  his  motion  to  set 
aside  the  default  and  to  be  allowed  to 
answer,  and  where  there  is  nothing  in  the 
judgment  roll  inconsistent  with  the  find- 
ing of  due  service  of  summons,  and  where 
nothing  further  is  shown  on  the  subject, 
it  will  be  presumed,  in  support  of  the 
judgment,  that  the  finding  was  based  upon 
service  made  in  pursuance  of  the  statute. 
La  Fetra  v.  Gleason,  101  Cal.  246;  35  Pac. 
765.  If  any  matters  could  have  been  pre- 
sented to  the  court  below  which  would 
have  authorized  an  amended  judgment,  it 
must  be  presumed,  upon  appeal,  that  such 


matters  were  so  presented,  and  that  the 
judgment  was  rendered  in  accordance 
therewith.  Canadian  etc.  Trust  Co.  v. 
Clarita  etc.  Investment  Co.,  140  Cal.  672; 
74  Pac.  301.  Where  a  judgment  is  claimed 
to  be  void  because  it  is  a  second  judg- 
ment, the  former  one  having  been  set 
aside  by  the  court,  and  it  is  claimed  that 
the  order  setting  aside  the  former  judg- 
ment is  void,  it  will  be  presumed  that  the 
order  vacating  the  first  judgment  was 
properly  made,  and  that  the  court  had 
jurisdiction  to  enter  the  second  judgment. 
Butler  V.  Soule,  124  Cal.  69;  56  Pac.  601. 

Appealable  orders.  An  order  denying 
relief  under  this  section  is  appealable. 
Freeman  v.  Brown,  4  Cal.  App.  108;  87 
Pac.  204.  As  to  the  right  of  appeal,  there 
is  no  distinction  between  judgments  by 
default  and  judgments  after  issue  joined 
and  a  trial.  Hallock  v.  Jaudin,  34  Cal. 
167.  An  order  entering  a  default  is  not 
appealable;  but  one  made  after  final  judg- 
ment, denying  the  plaintiff's  motion  to  set 
aside  a  judgment  by  default,  previously 
entered,  and  to  fix  a  time  for  the  defend- 
ant to  plead,  is  appealable  (Thompson  v. 
Alford,  128  Cal.  227;  60  Pac.  686);  and, 
unless  the  appeal  is  taken  within  sixty 
days,  it  must  be  dismissed  (Doyle  v.  Re- 
public Life  Ins.  Co.,  125  Cal.  15;  57  Pac. 
667);  and  an  order  refusing  to  set  asiile 
a  judgment  on  a  motion  is  appealable. 
De  la  Montanya  v.  De  la  Montanya,  112 
Cal.  101;  53  Am.  St.  Rep.  165;  32  L.  R.  A. 
82;  44  Pac.  345.  Where  a  judgment  is 
voidable,  but  not  void  on  its  face,  it  can 
be  corrected  only  on  appeal,  or  on  motion 
to  set  it  aside,  in  the  court  where  ren- 
dered, within  six  months  after  the  rendi- 
tion thereof;  and  if  the  motion  is  denied, 
an  appeal  lies  from  the  order  of  denial. 
People  V.  Dodge,  104  Cal.  487;  38  Pac.  203. 
If  a  judgment  is  not  void  on  its  face,  an 
order  purporting  to  set  it  aside  is  an  abso- 
lute nullity,  and  it  is  not  necessary  for 
the  plaintiff  to  appeal  therefrom:  the  court 
may,  of  its  own  motion,  set  aside  such 
order  at  anv  time.  People  v.  Davis,  143 
Cal.  673;  77  Pac.  651.  Where  a  judg- 
ment is  taken  against  a  defendant,  either 
through  mistake,  inadvertence,  surprise,  or 
excusable  neglect,  relief  should  be  sought 
in  the  court  below:  an  appeal  should  not 
be  taken  on  the  judgment  roll  alone,  where 
no  defect  is  disclosed  in  the  record.  John- 
ston V.  Callahan,  146  Cal.  212;  79  Pac.  870. 
W'here  the  court  adds  the  costs  to  the 
amount  of  the  judgment^  after  the  time 
for  filing  the  memorandum  has  expired, 
and  after  an  appeal  has  been  perfected, 
the  error  can  be  corrected  only  on  an  ap- 
peal from  such  order.  Jones  v.  Frost,  28 
Cal.  245. 

Disposition  of  appeal.  The  question  of 
the  service  of  summons  is  one  of  fact; 
and  if  the  evidence  is  conflicting,  and  the 
court  finds  that  service  was  made,  and 
there  is  sufficient  evidence  to  support  the 


S473 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


44& 


finding,  the  judgment  will  not  be  disturbed 
on  appeal.  Hunter  v.  Bryant,  98  Cal.  247; 
33  Pae.  51;  Mott  v.  West  Coast  Plumbing 
etc.  Co.,  113  Cal.  341;  45  Pac.  683.  The 
trial  court  has  a  wide  discretion,  under 
this  section,  and  its  action  will  not  be  dis- 
tui-bed  on  appeal,  unless  it  clearly  appears 
there  has  been  an  abuse  of  discretion. 
Hole  V.  Takekawa,  165  Cal.  372;  132  Pac. 
445.  On  an  appeal  from  an  order  refus- 
ing to  vacate  a  judgment  by  default,  all 
presumptions  are  in  favor  of  the  order 
of  the  lower  court;  where  the  evidence  is 
conflicting,  the  judgment  will  be  afiirmed. 
Security  Loan  etc.  Co.  v.  Estudillo,  134 
Cal.  166;  66  Pac.  257.  An  order  vacating 
a  judgment,  setting  aside  a  default,  and 
giving  leave  to  answer,  will  be  affirmed 
on  appeal,  although  the  clerk  certified  to 
the  transcript,  where  there  was  no  bill  of 
exceptions,  or  certificate  of  the  judge  iden- 
tifying the  papers.  Walsh  v.  Hutchings, 
60  "Cal.  228.  The  use  of  the  word  "execu- 
tor," instead  of  "executors,"  in  a  notice 
of  appeal,  is  evidently  one  of  the  scrivener, 
and  could  not  be  misleading,  and  will  be 
disregarded  on  appeal.  Estate  of  Nelson, 
128  Cal.  242;  60  Pac.  772.  Where  the 
court  grants  leave  to  file  an  amended  com- 
plaint, and  only  amendments  to  the  com- 
plaint were  filed,  and  there  is  nothing  in 
the  record  to  show  that  counsel  for  the 
defendant  was  not  present  and  consenting, 
the  appellate  court  will  not  disregard  such 
amendments:  that  leave  was  granted  to 
file  an  amended  complaint,  while  only 
amendments  to  the  complaint  were  filed, 
will  be  regarded  as  an  error  of  the  clerk. 
Reynolds  v.  Hosmer,  45  Cal.  616.  A  mis- 
take will  be  disregarded  upon  appeal,  where 
its  amendment,  if  it  had  been  moved  for, 
would  have  followed  as  a  matter  of  course. 
Estate  of  Nelson,  128  Cal.  242;  60  Pac. 
772.  Where  a  bill  of  exceptions,  used  on 
the  motion  for  a  new  trial,  was  not  served 
in  time,  and  the  record  shov/s  no  relief 
from  the  default,  the  bill  cannot  be  con- 
sidered on  appeal.  King  v.  Dugan,  150 
Cal.  258;  88  Pae.  925.  Where  a  demurrer 
to  the  complaint  is  sustained,  and  the 
plaintiff  declines  to  amend,  and  appeals 
from  the  judgment  and  the  order  sustain- 
ing the  demurrer,  the  supreme  court  can- 
not so  modify  the  judgment  as  to  grant 
him  leave  to  amend  his  complaint.  People 
V.  Jackson,  24  Cal.  630.  Where  a  defend- 
ant supposed  he  had,  in  his  answer,  denied 
the  material  allegations  of  the  complaint, 
and  the  court  sustained  his  view  of  the 
answer,  the  a^'pellate  court,  when  it  re- 
verses the  judgment  may  allow  the  court 
below  to  exercise  its  discretion  in  permit- 
ting the  answer  to  be  amended.  Fish  v. 
Redington,  31  Cal.  185. 

When  equity  will  grant  relief.  After 
adjournment  of  a  term,  a  party  who  sought 
to  set  aside  a  judgment  on  the  ground  of 
fraud  or  surprise  had,  umler  the  old  law,  to 
proceed  by  bill  in  equity.    Robb  v.  Robb, 


6  Cal.  21.  A  party  was  not  confined  to- 
his  remedy  by  statute,  but  could  resort 
to  a  court  of  equity  for  relief  against 
a  judgment  obtained  through  fraud  or 
surprise.  Carpentier  v.  Hart,  5  Cal.  406. 
Even  now,  a  party  against  whom  an  un- 
just judgment  has  been  obtained,  through 
accident,  mistake,  or  fraud,  may,  in  cer- 
tain cases,  maintain  a  suit  in  equity  to 
set  aside  a  judgment.  Sullivan  v.  Lums- 
den,  118  Cal.  664;  50  Pac.  777;  Fox  v. 
Townsend,  2  Cal.  App.  193;  83  Pac.  272; 
Rauer's  Law  etc.  Co.  v.  Standley,  3  Cal. 
App.  44;  84  Pac.  214.  Courts  of  equity, 
in  granting  relief  against  a  judgment,  are 
not  confined  to  eases  of  fraud,  actual  or 
constructive  (Herd  v.  Tuohy,  133  Cal.  55; 
65  Pac.  139) ;  but  have  jurisdiction,  in 
proper  eases,  which  are  not  very  numer- 
ous, to  set  aside  judgments  rendered  in 
other  actions,  and  to  grant  new  trials 
thereof;  but  it  must  be  made  to  appear 
with  reasonable  certainty  that  the  new 
trial  would  result  in  a  judgment  more- 
favorable  to  the  party  asking  it  than  that 
sought  to  be  set  aside.  Painter  v.  J.  B.. 
Painter  Co.,  133  Cal.  129;  65  Pac.  311. 
A  court  of  equity  will  not  interfere  and 
set  aside  a  judgment  at  law,  except  where 
it  has  been  obtained  through  fraud,  or 
through  some  accident  or  mistake,  without 
laches  on  the  part  of  the  party  complain- 
ing, and  after  all  remedy  at  law  has  been 
lost  (Mastick  v.  Thorp,  29  Cal.  444);  nor 
will  a  court  of  equity,  in  an  independent 
proceeding,  set  aside  the  judgment  of  an- 
other court,  except  upon  a  very  clear  and 
satisfactory  showing.  Reay  v.  Treadwell, 
140  Cal.  412;  73  Pac.  1078;  74  Pac.  352. 
Though  an  application  to  set  aside  a  judg- 
ment is  made  under  this  section,  that  fact 
alone  should  not  deprive  the  applicant  of 
relief  outside  of  this  section,  if  the  show- 
ing made  entitles  him  to  it.  Young  v. 
Fink,  119  Cal.  107;  50  Pac.  1060.  The 
remedy  by  motion,  under  this  section,  to 
be  relieved  from  a  judgment,  does  not 
exclude  or  displace  the  remedy  in  equity, 
nor  is  it  an  adequate  substitute  therefor. 
Bacon  v.  Bacon,  150  Cal.  477;  89  Pac.  317. 
The  denial  of  a  motion,  made  under  this 
section,  to  vacate  a  decree,  does  not  bar 
relief,  in  equity,  for  fraud.  Estudillo  v. 
Security  Loan  etc.  Co.,  149  Cal.  556;  87 
Pac.  19.  The  rule  under  which  a  court 
of  equity  declines  to  interfere  to  give  re- 
lief against  a  judgment  fraudulently  ob- 
tained, until  after  such  application  has- 
been  made  to  the  court  in  which  such, 
judgment  was  rendered,  has  no  applica- 
tion, where  relief  has  been  sought  and 
denied  in  that  court:  the  denial  of  that 
court  to  grant  relief  gives  to  a  court  of 
equity  the  same  authority  to  interfere  as 
if  the  other  court  were  powerless  to  render 
aid.  Merriman  v.  Walton,  105  Cal.  403;  45 
Am.  St.  Rep.  50;  30  L.  R.  A.  786;  38  Pac. 
1108.  To  entitle  a  defendant  to  relief 
against  a  judgment  or  decree  on  the  ground 


447 


RELIEF — NONE  IN  EQUITY,  WHERE  LEGAL  REMEDY  EXISTS. 


§473 


of  fraud,  it  must  appear  that  he  had  good 
defense  on  its  merits,  and  that  such  de- 
fense has  been  lost  to  him  without  any 
fault  on  his  part.  Collins  v.  Scott,  100 
Cal.  446;  34  Pac.  1085;  Eldred  v.  White, 
102  Cal.  600;  36  Pac.  944.  Equity  has 
power  to  grant  relief  against  a  fraudu- 
lent judgment,  establishing  right  to  prop- 
erty, as  against  parties  who  purchased 
such  property  with  notice.  Haydeu  v. 
Hayden,  46  Cal.  332.  Where  a  party,  by 
the  wrongful  acts  of  the  other  party,  is 
placed  in  a  position  from  which  he  can 
only  be  relieved  by  a  court  of  equity,  he 
may  obtain  relief  by  an  independent  action 
instituted  for  that  purpose.  Kelley  v. 
Krciss,  68  Cal.  210;  9  Pac.  129.  The  fraudu- 
lent conduct  of  the  attorney  of  a  party 
recovering  a  judgment  may  afford  suffi- 
cient ground  for  enjoining  the  judgment. 
Thompson  v.  Laughlin,  91  Cal.  313;  27  Pac. 
752.  Upon  an  application  to  vacate  a 
judgment,  there  may  be  some  reason  for 
sending  a  defendant  into  a  court  of  equity, 
which  does  not  apply  where  the  judgment 
is  void  for  defects  appearing  on  the  roll, 
and  which  thus  bears  on  its  face  the  evi- 
dence of  its  invalidity  (Wharton  v.  Har- 
lan, 68  Cal.  422;  9  Pac.  727;  Young  v. 
Fink,  119  Cal.  107;  50  Pac.  1060);  and  the 
rule  is,  and  should  be,  that,  where  the 
judgment  does  not  show  on  its  face  that 
it  is  void,  and  the  motion  is  not  made 
under  nor  within  the  time  prescribed  by 
this  section,  the  party  should  be  remitted 
to  his  equitable  action.  Young  v.  Fink, 
119  Cal.  107;  50"  Pac.  1060.  Unless  the 
invalidity  of  a  judgment  is  apparent  from 
the  judgment  roll,  the  court  rendering  it 
has  no  power,  in  the  absence  of  an  applica- 
tion made  within  the  time  specified  in  this 
section,  to  make  an  order  vacating  or  set- 
ting aside  such  judgment:  the  sole  remedy 
of  the  aggrieved  party,  who  may  not  in 
fact  have  been  served,  is  to  be  found  in  a 
new  action  on  the  equity  side  of  the  court. 
People  V.  Davis,  143  Cal.  673;  77  Pac.  651. 
Where  a  judgment  does  not  appear,  on  the 
face  of  the  judgment  roll,  to  be  invalid, 
all  who  purchase,  after  its  entry,  in  good 
faith,  for  a  valuable  consideration,  and 
without  notice,  will  be  protected  by  it. 
Hayden  v.  Hayden,  46  Cal.  332.  A  judg- 
ment taken  by  fraud,  without  notice  to 
the  injured  party,  is  absolutely  void;  it  is 
not  taken  through  mistake,  inadvertence, 
surprise,  or  excusable  neglect;  and  the 
party  against  whom  it  is  taken  has  a 
right  to  an  original  action  to  have  it  an- 
nulled by  a  court  of  equity.  California 
Beet  Sugar  Co.  v.  Porter,  68  Cal.  369;  9 
Pac.  313.  While  a  judgment,  void  in  fact 
for  want  of  jurisdiction  over  the  person 
of  the  defendant,  may  be  vacated  on  mo- 
tion, j'et  the  more  appropriate  remedy  is 
an  equitable  action  to  vacate  the  judg- 
ment. People  V.  Thomas,  101  Cal.  571;  36 
Pac.  9.  Where  a  justice  of  the  peace  en- 
ters a  judgment  according  to  law,  he  has 


no  right  to  alter  it  afterwards,  without 
notice  to  the  defendant,  so  as  to  nialce  it 
an  illegal  or  improper  judgnuMit,  and 
equity  has  jurisdiction  to  vacate  the  judg- 
ment thus  altered.  Chester  v.  Miller,  13 
Cal.  558.  Where  a  justice's  judgment  has 
been  procured  by  fraud,  and,  on  motion, 
the  justice  grants  an  order  opening  the 
judgment,  but  afterwards,  without  notice, 
vacates  the  order,  his  action  in  vacating 
the  order  is  equivalent  to  a  denial  of  the 
motion,  and  there  is  no  appeal  to  the  su- 
perior court  from  this  order:  a  court  of 
equity  will  give  relief  against  the  judg- 
ment. Merriman  v.  Walton,  105  Cal.  403; 
45  Am.  St.  Rep.  50;  30  L.  E.  A.  786;  38 
Pac.  1108.  The  correct  procedure  to  ob- 
tain relief  from  a  judgment  obtained 
through  fraud  is  by  a  motion  to  vacate  the 
judgment,  which,  if  granted,  will  afford 
the  most  expeditious  mode  of  relief;  but, 
where  the  motion  is  unsuccessful,  the  in- 
jured party  is  entitled  to  a  regular  trial 
in  equity,  upon  the  issue  of  fraud  in  the 
procurement  of  the  judgment.  Estudillo 
V.  Security  Loan  etc.  Co.,  149  Cal.  556;  87 
Pac.  19.  A  complaint  in  equity  to  vacate 
a  judgment  at  law  does  not  authorize  the 
interposition  of  the  court,  where  such 
complaint  contains  no  allegation  of  fraudu- 
lent intent,  nor  a  mistake  in  obtaining 
the  judgment  in  the  original  action.  Le 
Mesuager  v.  Variel,  144  Cal.  463;  103  Am. 
St.  Eep.  91;  77  Pac.  988.  In  an  action 
to  set  aside  a  judgment  alleged  to  have 
been  procured  by  fraud,  the  facts  and  cir- 
cumstances constituting  the  alleged  fraud 
must  be  averred:  it  is  not  sufficient  to 
make  the  averment,  in  general  terms,  that 
the  judgment  was  fraudulent.  Castle  v. 
Bader,  23  Cal.  75.  A  plaintiff's  action  to 
set  aside  a  decree,  based  upon  the  ground 
of  fraud,  accident,  or  mistake,  must  not 
only  aver  the  facts  constituting  his  ease, 
but,  if  they  are  denied,  prove  them  also. 
Eichoff  V.  Eichoff,  107  Cal.  42;  48  Am.  St. 
Rep.  110;  40  Pac.  24. 

Equity  will  not  take  jurisdiction,  where 
there  is  legal  remedy.  Equity  will  not 
give  its  aid  to  relieve  a  party  from  the 
effect  of  a  judgment,  where  there  is  an 
ample  remedy  at  law.  Imlay  v.  Carpen- 
tier,  14  Cal.  173;  Borland  v.  Thornton,  12 
Cal.  440;  Ede  v.  Hazen,  61  Cal.  360; 
Ketchum  v.  Crippen,  37  Cal.  223;  Califor- 
nia Beet  Sugar  Co.  v.  Porter,  68  Cal.  369; 
9  Pac.  313;  Heller  v.  Dyerville  Mfg.  Co., 
116  Cal.  127;  47  Pac.  1016.  Where  courts 
of  law  and  equity  have  concurrent  juris- 
diction, and  a  court  of  law  has  first  ac- 
quired jurisdiction  and  decided  a  case,  a 
court  of  equity  will  not  interfere  to  set 
aside  the  judgment,  unless  the  party  has 
been  prevented,  through  fraud  or  accident, 
from  availing  himself  of  the  defense  at 
law  (Dutil  V.  Paeheco,  21  Cal.  438;  82  Am. 
Dec.  749) ;  nor  can  the  assistance  of  equity 
to  set  aside  a  judgment  be  invoked,  in  a 
distinct  action,  so  long  as  the  remedy  by 


§473 


MISTAKES   IN    PLEADINGS   AND    AMENDMENTS. 


448 


motion  in  the  original  case  exists  (Bibend 
V.  Kreutz,  20  Cal.  109;  Merriman  v.  Wal- 
ton, 105  Cal.  403;  45  Am.  St.  Rep.  50;  30 
L.  R.  A.  786;  38  Pac.  1108);  but  this  rule 
does  not  apply,  where  a  judgment  is  fraud- 
ulently taken  against  an  injured  party, 
and  executed  by  a  sale  of  his  real  prop- 
erty (California  Beet  Sugar  Co.  v.  Porter, 
68  Cal.  369;  9  Pac.  313);  and  when  the 
time  within  which  the  motion  may  be 
made  has  expired,  and  there  has  been  no 
laches  or  want  of  diligence  on  the  part 
of  the  party  asking  relief,  there  is  noth- 
ing in  reason  or  propriety  to  prevent  the 
interference  of  equity.  Brackett  v.  Bane- 
gas,  116  Cal.  278;  58  Am.  St.  Eep.  164;  48 
Pac.  90;  Bibend  v.  Kreutz,  20  Cal.  109; 
People  V.  Lafarge,  3  Cal.  130;  Carpentier 
V.  Hart,  5  Cal.  406;  Robb  v.  Robb,  6  Cal. 
21;  Pico  V.  Carillo,  7  Cal.  30.  The  statu- 
tory remedy  by  motion  to  obtain  relief 
against  an  unjust  judgment,  before  the 
court  rendering  it,  was  formerly  available 
only  during  the  term  at  which  the  judg- 
ment was  rendered;  but  this  remedy  was 
held  not  to  be  exclusive,  as  it  would 
often  result  in  a  denial  of  obvious  justice. 
Bibend  v.  Kreutz,  20  Cal.  109.  Where 
judgment  is  rendered  against  a  defendant 
after  his  discharge  in  insolvency,  in  a  suit 
previously  instituted,  he  has  a  complete 
remedy  at  law,  and  is  not  entitled  to  re- 
lief in  equity,  by  means  of  an  injunction 
to  restrain  the  enforcement  of  the  judg- 
ment. Eahm  v.  Minis,  40  Cal.  421.  Where 
there  has  been  no  service  on  the  defend- 
ant, it  is  not  necessary  to  file  a  bill  in 
chancery  to  vacate  a  judgment  by  default: 
it  may  be  set  aside  or  reopened  on  motion, 
within  the  time  allowed  by  law.  Pico  v. 
Carillo,  7  Cal.  30.  A  defendant  is  not 
bound  to  resort  to  a  remedy  by  motion 
to  set  aside  a  judgment  taken  against  him, 
where  there  was  no  service  of  summons 
upon  him,  or  the  affidavit  of  service  is 
false.  Lapham  v.  Campbell,  61  Cal.  296. 
A  judgment  taken  against  a  corporation, 
through  the  fraud  of  its  directors,  may  be 
set  aside,  either  before  or  after  the  ex- 
piration of  six  months;  but  the  remedy 
l)y  motion  on  the  ground  of  fraud  is  not 
exclusive  of  the  remedy  by  a  suit  in 
equity,  unless  such  remedy  by  motion  is 
perfectly  adequate.  Ex-Mission  Land  etc. 
Co.  V.  Flash,  97  Cal.  610;  32  Pac.  600.  The 
remedy  against  an  execution  issued  on  a 
judgment  claimed  to  have  been  discharged 
by  a  decree  in  insolvency  is  by  motion,  and 
not  by  a  bill  in  equity  for  an  injunction. 
Green  v.  Thomas,  17  Cal.  86. 

Equity  will  not  interfere  to  correct 
errors.  A  court  of  equity  will  never  set 
aside  a  judgment  for  mere  error,  whether 
of  law  or  of  fact,  committed  in  the  rendi- 
tion of  the  judgment  (Wickersham  v.  Com- 
erford,  104  Cal.  494;  38  Pac.  101;  Estate 
of  Griffith,  84  Cal.  107;  24  Pac.  381);  nor 
will  it  intervene  to  correct  mere  clerical 
errors:   it  has  no  jurisdiction   to  amend  a 


judgment  to  insert  an  omitted  contract 
therein  (Hull  v.  Calkins,  137  Cal.  84;  69 
Pac.  838);  it  will,  however,  correct  a  mis- 
take of  law;  but,  wherever  inadvertence 
or  mistake  is  held  to  be  ground  for  set- 
ting aside  a  judgment,  it  will  be  noticed 
that  it  is  not  a  mistake  of  law,  or  an  in- 
advertent conclusion  as  to  what  the  law 
is,  but  a  mistake  or  an  inadvertence  in 
doing  something  not  intended  to  be  done. 
Sullivan  v.  Lumsden,  118  Cal.  664;  50 
Pac.  777.  A  mere  naked  mistake  of  law, 
unattended  with  any  special  circumstances, 
such  as  misrepresentation,  undue  influence, 
or  misplaced  confidence,  constitutes  no 
ground  for  relief  in  a  court  of  equity 
(Goodeuow  v.  Ewer,  16  Cal.  461;  76  Am. 
Dec.  540),  save  in  exceptional  cases;  but 
relief  will  be  granted  in  the  original  ac- 
tion, upon  motion  or  supplemental  bill. 
Brackett  v.  Banegas,  116  Cal.  278;  58  Am. 
St.  Eep.  164;  48  Pac.  90.  Though  a  judg- 
ment will  not  be  interfered  with  for  mere 
error,  yet  want  of  notice  to  the  defend- 
ant, and  his  consequent  inability  to  be 
heard,  may  be  a  sufficient  ground  for  re- 
lief in  equity,  even  where  the  failure  to 
defend  is  not  chargeable  to  the  plain- 
tiff, and  a  fortiori  where  it  is  so  charge- 
able. Herd  v.  Tuohy,  133  Cal.  55;  65  Pac. 
139.  The  dismissal  of  an  appeal,  for  in- 
advertently omitting  to  file  the  undertak- 
ing thereon  within  the  statutory  time,  is 
not  a  ground  for  relief  in  equity.  Daly  v. 
Pennie,  86  Cal.  552;  21  Am.  St.  Rep.  61; 
25  Pac.  67. 

Fraud  must  be  extrinsic  or  collateral. 
To  authorize  a  court  of  equity  to  set  aside 
and  annul  a  judgment,  on  the  ground  of 
fraud  in  its  procurement,  the  fraud  must 
be  extrinsic  or  collateral  to  the  questions 
examined  and  determined  in  the  action, 
and  must  have  prevented  a  fair  submis- 
sion of  the  controversv  (Pico  v.  Cohn,  91 
Cal.  129;  25  Am.  St.  Eep.  159;  13  L.  E.  A. 
336;  25  Pac.  270;  27  Pac.  537;  Hanlev  v. 
Hanley,  114  Cal.  690;  46  Pac.  736;  Steen 
v.  March,  132  Cal.  616;  64  Pac.  994);  and 
a  court  of  equity  will  not  grant  relief  for 
fraud  involved  in  any  matter  upon  which 
the  decree  was  rendered.  Fealev  v.  Fealev, 
104  Cal.  354;  43  Am.  St.  Eep.  Ill;  38  Pac. 
49;  Estate  of  Griffith,  84  Cal.  107;  23  Pac. 
52S;  24  Pac.  381.  In  applications  for  re- 
lief under  this  section,  no  distinction  is 
made  between  extrinsic  or  other  fraud. 
Application  of  Johnson,  7  Cal.  App.  436; 
94  Pac.  592.  When  an  equitable  action  is 
brought  to  set  aside  a  judgment  at  law, 
the  attack,  although  not  collateral,  is 
always  indirect.  Le  Mesnager  v.  Variel, 
144  "Cal.  463;  103  Am.  St.  Rep.  91;  77 
Pac.  988.  An  attack  upon  a  judgment, 
for  fraud  in  its  procurement,  is  a  direct 
attack,  since  the  establishment  of  fraud 
shows  that  no  judgment  was  rendered;  but 
the  fraud  from  which  relief  may  be  had 
does  not  include  a  judgment  regularly  ob- 
tained  upon    a    fraudulent     claim     or     by 


449 


RELIEF — DILIGENCE — EVIDENCE — DEFINITIONS. 


§473 


false  testimony:  it  is  limited  to  the  fraud 
in  procuring  the  judgment.  Parsons  v. 
Weis,  144  Cal.  410;  77  Pac.  1007.  The 
rule  that  fraud  relating  to  the  merits  of 
the  controversy  is  concluded  by  the  judg- 
ment, does  not  apply,  where  the  defendant 
had  no  knowledge  of  the  pendency  of  the 
action.  Dunlap  v.  Steere,  92  Cal.  344;  27 
Am.  St.  Rep.  14.3;  16  L.  R.  A.  361;  28  Pac. 
563.  The  failure  of  a  party  to  introduce 
evidence,  known  by  him  to  exist,  tending 
to  overthrow  his  case,  is  not  ground  for  a 
suit  to  set  aside  the  judgment:  it  is  not 
a  fraud  extrinsic  or  collateral  to  the  mat- 
ter examined  in  the  first  suit.  Estate  of 
Griffith,  84  Cal.  107;  23  Pac.  528;  24  Pac. 
381.  The  judgment  will  not  be  vacated, 
merely  because  it  was  obtained  by  forged 
documents  or  perjured  testimony,  or  by 
the  bribing  of  a  witness  to  swear  falsely. 
Pico  V.  Cohn,  91  Cal.  129;  2.5  Am.  St.  Rep. 
159;  13  L.  R.  A.  336;  25  Pac.  270;  27  Pac. 
537. 

Diligence  and  absence  of  negligence.  A 
party  against  whom  an  alleged  fraudulent 
judgment  has  been  obtained,  and  who 
seeks  to  have  it  set  aside  on  the  ground 
of  fraud,  should  show  that  he  had  made 
a  motion  to  have  it  set  aside  when  he 
had  an  opportunity  to  do  so;  otherwise  it 
■would  appear  that  he  had  not  used  due 
and  proper  diligence  to  avoid  its  eflfect. 
Chielovieh  v.  Krauss,  2  Cal.  Unrep.  643; 
9  Pac.  945.  A  court  of  equity  will  not 
grant  relief  from  a  judgment  obtained  by 
fraud,  unless  the  party  seeking  relief  has 
been  free  from  negligence:  where  the  judg- 
ment was  the  result  of  his  carelessness,  he 
is  not  entitled  to  relief  (Quinn  v.  Weth- 
erbee,  41  Cal.  247;  Champion  v.  Woods, 
79  Cal.  17;  12  Am.  St.  Rep.  126;  21  Pac. 
534) ;  nor  will  a  court  of  equity  annul  a 
judgment  at  law,  after  the  lapse  of  thir- 
teen months,  where  to  do  so  would  be 
tinjust  and  inequitable,  and  where  the 
effect  would  be  to  allow  the  applicant  to 
avoid  the  payment  of  his  just  debts  by 
pleading  the  statute  of  limitations  in  a 
subsequent  action.  Eldred  v.  White,  102 
Cal.  600;  36  Pac.  944.  A  party  may  obtain 
relief  against  an  unjust  judgment,  by 
«quitable  action  to  set  it  aside,  where  no 
want  of  diligence  is  imi)utable  to  him  in 
seeking  relief.  Bibend  v.  Kreutz,  20  Cal. 
109.  A  judgment  will  be  set  aside  on  the 
ground  of  fraud,  only  where  the  fraud  was 
practiced  in  obtaining  the  judgment,  and 
the  party  against  whom  it  was  rendered, 
a.nd  his  counsel,  are  free  from  negligence: 
equity  will  be  concluded  by  the  judgment 
at  law,  where  fraud  is  equally  a  defense 
as  in  equity.  Zellerbach  v.  Allenberg,  67 
Cal.  296;  7  Pac.  90S.  The  plaintiff  can- 
not attack  the  settlement  and  dismissal 
of  an  action,  upon  an  insufficient  showing 
of  fraud,  where  there  is  a  delay  of  four- 
teen vears  in  asserting  the  facts.  Truett 
V.  Onderdonk,  120  Cal.  581;  53  Pac.  26. 
1  Fair. — 29 


Evidence.  On  a  motion  to  set  aside  a 
judgment,  the  true  facts  may  be  shown 
by  any  competent  evidence.  McKinley  v. 
Tuttle,  34  Cal.  235.  Where  a  judgment 
by  default  was  taken  after  service  by 
publication,  and  motion  is  made,  six  years 
after  entry  thereof,  to  vacate,  no  evidence 
in  the  record  is  admissible  to  imj)each  it: 
the  rule  is  otherwise,  where  a  direct  attack 
is  made  on  the  judgment,  by  appeal  or 
motion  within  the  time  prescribed.  People 
v.  Norris,  144  Cal.  422;   77  Pac.  998. 

Definition  of  words  and  phrases.  A  de- 
fault occurs  when  the  defendant  fails  to 
answer  or  demur,  as  prescribed  in  §§  850, 
871  et  seq.,  post.  Weimmer  v.  Sutherland, 
74  Cal.  341;  15  Pac.  849.  A  motion  is  an 
application  for  an  order.  Brownell  v. 
Superior  Court,  157  Cal.  703;  109  Pac.  91. 
The  settlement  of  a  bill  of  exceptions  is 
a  "proceeding"  (People  v.  Everett,  8  Cal. 
App.  430;  97  Pac.  175;  Dernham  v.  Baglev, 
151  Cal.  216;  90  Pac.  543;  Freeman  v. 
Brown,  5  Cal.  App.  516;  90  Pac.  970;  Stone- 
sifer  V.  Kilburn,  94  Cal.  33;  29  Pac.  332); 
as  is  also  the  settlement  of  a  statement  on 
motion  for  a  new  trial  (Banta  v.  Siller, 
121  Cal.  414;  53  Pac.  935);  there  being  no 
substantial  difference  between  a  bill  of 
exceptions  and  a  statement  (Sauer  v.  Eagle 
Brewing  Co.,  3  Cal.  App.  127;  84  Pac. 
425);  but  the  mere  reservation  of  an  ob- 
jection to  the  service  of  a  proposed  bill 
of  exceptions  does  not  constitute  a  "pro- 
ceeding," within  the  meaning  of  this  sec- 
tion. Pollitz  V.  Wickersham,  150  Cal.  238; 
88  Pac.  911.  A  mere  memorandum  entered 
in  the  rough  minutes  of  the  clerk  is  not 
an  order.  Brownell  v.  Superior  Court,  157 
Cal.  703;  109  Pac.  91.  Where  findings  are 
required,  there  is  no  "rendition"  of  the 
judgment,  until  they  are  filed  with  the 
clerk;  if  none  are  required,  there  is  no 
"rendition"  of  the  judgment  until  the  de- 
cision is  entered  in  the  official  minutes  of 
the  court.  Id.  The  word  "taken,"  as  used 
in  this  section,  is  equivalent  to  "rendi- 
tion." Id.  The  "surprise"  contemplated 
by  this  section  is  "some  condition  or  situa- 
tion in  which  a  party  to  a  cause  is  unex- 
pectedly placed  to  his  injury,  without  any 
default  or  negligence  of  his  own,  which 
ordinary  prudence  could  not  have  guarded 
against."  Porter  v.  Anderson,  14  Cal.  App. 
716;  113  Pac.  345. 

How  far  amendments  altering  or  varying  cause 
of  action  are  allowed.    See  note  34  Am.  Dec.  158. 

Amendments  stating  new  cause  of  action.  See 
notp  51   Am.   St.  Rep.  414. 

Amendment  of  pleadings  on  trial.  See  note  5 
Ann.  Cas.   074. 

Amendment  of  pleading  by  changing  character 
in  which  defendant  is  sued  as  bringing  in  new 
parties.    See  note  10  Ann.  Cas.  150. 

Amendment  of  pleading  in  respect  to  descrip- 
tion of  land  in  controversy.  See  note  14  .Vnn. 
Cas.  455. 

Eight  to  amend  pleading  after  default  Judg- 
ment.   See  note  Ann.  Cas.   l'913B,  481. 

Right  to  amend  complaint  by  adding  or  sub- 
stituting new  plaintiff  suing  for  use  of  original 
plaintiff.    See  note  Ann.  Cas.  1913B,  110. 


§473 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


450 


Amendment  to  cure  defect  for  which  motion  in 
arrest  of  judgment  has  been  made.  See  note  67 
L.  R.  A.   (N.  S.)   179. 

Relation  of  new  pleadings  to  statutes  of  limita- 
tions. See  notes  3  L.  R.  A.  (N.  S.)  260;  33 
L.  R.  A.    (N.   S.)    196. 

Eight  to  amend  pleadings  after  final  decision 
on  appeal.    See  note  18  L.  R.  A.   (N.  S.)   263. 

CODE  COMMISSIONERS'  NOTE.  1.  Adding 
or  striking  out  parties.  If  plaintiff's  testimony 
on  trial  shows  that  there  is  a  non-joinder  of  per- 
sons who  should  have  been  plaintiffs,  and  a  mo- 
tion for  a  nonsuit  is  made  on  this  ground,  the 
court  may  allow  an  amendment  by  adding  the 
name  of  a  co-plaintiff.  Acquital  v.  Crowell,  1 
Cal.  191;  Heath  v.  Lent,  1  Cal.  412.  After  or- 
dering defendants,  against  whom  no  proof  is  ad- 
duced, to  be  stricken  from  the  pleadings,  can 
they  be  reinstated  during  the  progress  of  the 
trial?  Beach  v.  Covillaud,  2  Cal.  287.  After  the 
close  of  plaintiff's  evidence,  the  complaint  may 
be  amended,  by  adding  the  name  of  another  party 
plaintiff,  if  it  does  not  affect  the  substantial 
rights  of  the  parties.  Polk  v.  Coffin,  9  Cal.  56. 
If  judgment  is  entered  against  "the  defendants," 
and  a  portion  of  them  were  not  sued,  though 
their  names  appeared  as  defendants,  by  a  mis- 
take of  the  clerk  in  entitling  the  cause,  the  error 
may  be  corrected.  Browner  v.  Davis,  15  Cal.  9. 
If  a  court  alters  a  judgment,  without  notice,  so 
as  to  include  a  party  not  served  with  process, 
if  not  void  it  is  voidable  at  the  election  of  the 
party.  Chester  v.  Miller,  13  Cal.  558.  If  a 
judgment  entered  embraces  more  parties  than  the 
testimony  justifies,  the  proper  practice  is  to  move 
to  correct  the  judgment  in  the  court  below. 
Mulliken  v.  Hull,  5  Cal.  245.  A  court  may 
order  judgment  creditors,  as  subsequent  encum- 
brancers, to  be  made  parties  to  an  action  by  an 
amendment  of  the  complaint.  Horn  v.  Volcano 
Water  Co.,  13  Cal.  70;  73  Am.  Dec.  569.  Mo- 
tions to  add  or  strike  out  parties,  etc.,  see  Bowe 
V.   Chandler,    1   Cal.    175. 

2.  Extending  time  for  answer  or  demurrer. 
This  can  be  done  whenever  the  ends  of  justice 
seem  to  require  it.  Wood  v.  Fobes,  5  Cal.  62 ; 
Drum  V.  Whiting,  9  Cal.  422;  Thornton  v.  Bor- 
land, 12  Cal.  438. 

3.  Amending  complaint.  If  the  proof  does  not 
sustain  the  allegations  of  the  complaint,  but  the 
proof  is  sufficient  to  entitle  the  plaintiff  to  relief 
in  a  court  of  equity,  under  properly  framed  plead- 
ings, an  amendment  should  be  allowed  conform- 
ing the  pleadings  to  the  facts  which  should  be  in 
issue.  Connalley  v.  Peck,  3  Cal.  75;  McDonald 
V.  Bear  River  etc.  Mining  Co.,  15  Cal.  145; 
Nevada  County  etc.  Canal  Co.  v.  Kidd,  28  Cal. 
673.  The  plaintiff  brought  action  in  assumpsit 
to  recover  rent  for  premises,  the  possession  of 
which  he  had  previously  recovered  by  ejectment 
against  the  defendant.  After  the  trial  and  ver- 
dict, which  was  set  aside  by  the  court,  he 
amended  his  complaint  to  make  it  in  form  an 
action  of  trespass  for  mesne  profits.  This  should 
not  have  been  permitted.  Such  an  amendment 
would  virtually  change  an  action  ex  contractu 
into  an  action  ex  delicto.  Ramirez  v.  Murray,  5 
Cal.  222.  Facts  which  occur  subsequent  to  the 
filing  of  the  original  complaint,  and  which  change 
the  liabilities  ot  the  defendants,  and,  in  conse- 
quence, the  character  of  the  judgment  which  is 
sought,  cannot  be  incorporated  into  the  original 
complaint  by  an  amendment,  without  presenting 
averments  inconsistent  with  the  date  of  the  com- 
mencement of  the  action.  Van  Maren  v.  Johnson, 
15  Cal.  308.  Refusing  to  allow  a  plaintiff  to 
strike  out  a  claim  for  damages,  without  regard 
to  the  purpose  which  may  influence  him,  is  error. 
Grass  Valley  Quarlii  Mining  Co.  v.  Stackhouse,  6 
Cal.  413.  The  wife  is  a  proper  party  defendant 
in  a  suit  for  the  foreclosure  of  a  mortgage  exe- 
cuted upon  premises  claimed  as  a  homestead. 
When  not  maae  a  party,  she  may  intervene,  or, 
by  permission  of  the  court,  be  allowed  to  file 
a  separate  answer,  the  plaintiff  having  the  liberty 
to  amend  his  complaint,  if  any  matters  are  set 
up  in  the  answer  which  he  might  wish  to  antici- 


pate by  further  allegations.  Moss  v.  Warner,  10 
Cal.  296.  If  the  complaint  avers  the  ownership 
of  land  in  the  bed  of  and  on  the  banks  of  a 
stream,  and  work  done  thereon  to  dig  a  canal  and 
build  a  dam  to  use  the  waters  of  the  stream, 
and  is  framed  for  a  judgment  to  recover  posses- 
sion of  the  property  from  one  who  is  averred  to 
have  ousted  plaintiff,  the  plaintiff  should,  on  mo- 
tion to  that  eft'ect,  be  allowed  to  amend  his  com- 
plaint by  inserting  therein  averments  of  his  prior 
appropriation  of  water  and  a  diversion  by  de- 
fendant, with  prayer  for  an  injunction.  Nevada 
County  etc.  Canal  Co.  v.  Kidd,  28  Cal.  673.  A 
complaint  cannot  be  amended  in  the  supreme 
court  so  as  to  make  it  correspond  with  the  ver- 
dict. The  district  court,  in  a  proper  case,  before 
judgment,  may  direct  the  complaint  to  be  so 
amended.  Hooper  v.  Wells  Fargo  &  Co.,  27  Cal. 
35;  85  Am.  Dec.  211.  Plaintiff  may  amend  his 
complaint  at  any  time  before  issuance  of  sum- 
mons without  leave  of  the  court,  if  there  has  been 
no  appearance  of  defendant.  Allen  v.  Marshall, 
34  Cal.  165. 

4.  Amendment  to  answer.  A  joint  claim  by 
two  persons  cannot  be  pleaded  as  a  counterclaim 
by  one  defendant;  but  he  may  amend,  and  aver 
that  the  whole  interest  therein  has  been  trans- 
ferred to  him.  Stearns  v.  Martin,  4  Cal.  229. 
Because  new  matter  set  up  by  an  amendment 
was  well  known  to  the  defendant  at  the  time  he 
filed  his  original  answer,  is  no  good  reason  for 
declining  to  permit  amendment.  Pierson  v.  Mc- 
Cahill,  22  Cal.  127.  An  amended  answer  super- 
sedes the  original,  and  destroys  its  effect  as  a 
pleading.  Oilman  v.  Cosgrove,  22  Cal.  356;  Jones 
V.  Frost,  28  Cal.  246. 

5.  Setting  aside  judgment  by  default.  Bailey 
V.  Taaffe,  29  Cal.  422.  A  judgment  by  default 
may  be  set  aside  on  the  ground  of  fraud  or  sur- 
prise. Bidleman  v.  Kewen,  2  Cal.  250.  An 
order  of  court  setting  aside  a  default  and  judg- 
ment entered  during  vacation  is  regular  and  cor- 
rect, where  there  has  been  no  service  of  summons 
upon  the  defendants.  Pico  v.  Carrillo,  7  Cal.  30. 
In  an  action  of  ejectment  against  two  defendants, 
one  who  was  served  with  summons  and  made  de- 
fault, and  without  any  service  being  made  upon 
the  other,  a  judgment  was  entered  against  both 
for  possession  of  the  premises  and  costs.  On  ap- 
plication of  the  defendant  not  served,  an  order 
made  at  a  subsequent  term  of  the  court,  setting 
aside  the  entire  judgment  as  to  both  defendants, 
with  leave  to  the  defendant  not  served  to  answer, 
was  not  error.  The  effect  of  such  an  order  is, 
not  to  set  aside  the  default  of  the  defendant  who 
had  been  served,  as  to  permit  his  co-defendant 
to  defend  for  both.  A  new  judgment  may  be  at 
once  entered  by  the  plaintiff  against  the  default- 
ing defendant.  Lewis  v.  Rigney,  21  Cal.  268.  A 
defendant  who,  having  sutTered  a  default,  has 
obtained  from  the  plaintiff  a  stipulation  that  the 
default  may  be  set  aside,  must  use  reasonable 
diligence  in  applying  to  the  court  therefor,  or  his 
riglit  to  it  will  be  lost.  Reese  v.  Mahoney,  21 
Cal.  305.  A  motion  may  be  made  to  set  aside 
a  default  entered  by  a  clerk  at  any  time  before 
final  judgment  is  rendered  in  the  action,  not- 
withstanding the  court  has  adjourned  for  the 
term  at  which  the  default  was  entered,  and  be- 
fore the  motion  is  made  to  vacate  it.  The  court 
does  not  lose  jurisdiction  to  vacate  a  default 
because  the  term  at  which  it  was  entered  has  ad- 
journed, unless  final  judgment  has  been  entered 
in  the  action.  Willson  v. '^Cleaveland,  30  Cal.  192. 
Where  the  defendant  moves  to  compel  the  plain- 
tiff to  elect  which  count  of  the  complaint  he  will 
go  to  trial  on,  and  the  court  makes  an  order  ex- 
tending the  time  to  answer  until  the  decision  of 
the  motion,  and  the  motion  is  sustained,  a  default 
of  the  defendant,  entered  by  the  clerk  in  less  than 
ten  days  after  the  plaintiff  serves  notice  of  his 
election,  is  void,  and  the  court  may  set  it  aside 
upon  suggestion,  without  any  aflidavit  of  merits. 
Willson  V.  Cleaveland,  30  Cal.  192.  If  the  ten- 
ant sued  in  ejectment  has,  by  neglect  or  design, 
suffered  a  default,  the  landlord  may,  upon  a 
proper  showing  and  motion  in  the  name  of  the 
tenant,    have    the    default    set    aside.     Dimick    v. 


451 


JUDGMENTS — SETTING  ASIDE — AMENDMENTS. 


§473 


DrrinRpr.  32  Cal.  488.  A  .iudsmpnt  by  dpfault 
will  not  be  opened  unless  it  be  shown  that  the 
judijmpnt.  as  it  stands,  is  unjust,  and  an  aflidavil 
as  to  merits  is  necessary.  Parrot t  v.  Den,  34  Cal. 
79.  Where  a  case  in  the  twelfth  district  was  set 
lor  trial  on  a  particular  day,  with  the  knowledge 
and  consent  of  defendant's  attorney,  and  he  then, 
two  or  three  days  before  the  day  of  trial,  (roes 
into  Alameda  County  to  try  another  cause  there, 
without  making  any  arransenient  in  respect  to 
the  first  case,  in  which,  on  the  day  fixed,  plain- 
tiff had  .iudgment,  no  one  appearing  for  defend- 
ant, except  to  state  the  fact  of  the  attorney's 
absence,  and  to  ask  a  postponement,  which  was 
denied.  It  was  held  that  the  supreme  court 
would  not  review  the  action  of  the  court  below 
in  refusing  to  set  aside  the  judgment  because  of 
the  absence  of  said  attorney.  Ilaight  v.  Green,  19 
Cal.  113.  A  judgment  by  default  should  not  be 
set  aside  by  the  court,  unless  the  defendant  shows 
by  competent'  proof  that  the  judgment  was  en- 
tered through  mistake,  inadvertence,  surprise,  or 
excusable  neglect  on  his  part :  and  the  payment 
of  the  costs  should  be  imposed  as  a  condition  of 
setting  aside  the  judgment  bv  default.  People  v. 
O'Connell,  23  Cal.  281;  Bailey  v.  Taaffe,  29  Cal. 
422. 

6.  What  must  be  shown  to  authorize  the  set- 
ting aside  of  a  judgment.  No  particular  form  is 
reiuiired  by  the  code  in  which  application  shall  be 
made  for  setting  asidye  judgment.  All  that  is  re- 
quired is  that  the  facts  shall  be  set  forth,  and  if 
they  show  a  case  coming  within  the  rule,  it  is 
sufficient.  People  v.  Lafarge,  3  Cal.  130.  An  affi- 
davit to  the  effect  that  an  instrument  has  been 
materially  altered,  without  showing  in  any  man- 
ner in  what  the  alteration  consists,  furnishes 
insufficient  grounds  upon  which  to  base  a  motion 
to  set  aside  a  judgment.  Taylor  v.  Randall,  5  Cal. 
79.  An  affidavit  of  merits,  without  any  averment 
of  mistake,  surprise,  or  excusable  neglect,  is  not 
sufficient  to  warrant  the  opening  a  default,  where 
personal  service  of  summons  was  made.  Harlan 
V.  Smith,  6  Cal.  173.  An  affidavit  by  defendant' 
that  he  was  under  the  impression,  when  he  re- 
tained counsel  in  a  cause,  that  the  time  to  an- 
swer had  not  expired,  that  he  did  not  recollect' 
the  precise  day  upon  which  the  summons  and 
complaint  were  served,  that  he  was  quite  ill  at 
the  time,  and  did  not  as  carefully  note  the  time 
as  he  otherwise  would,  is  not  sufficient  to  set 
aside  a  judgment  by  default.  Elliott  v.  Shaw,  16 
Cal.  377;  see  also  People  v.  Rains,  23  Cal.  128; 
Bailey  v.  Taaffe,  29  Cal.  422.  An  order  opening 
a  default  will  not  be  granted,  unless  there  is  an 
affidavit  of  merits.  Parrott  v.  Den,  34  Cal.  79; 
Reese  v.  Mahoney,  21  Cal.  305;  see  also  Bailev  v. 
Taaffe,  29  Cal.  422;  Woodward  v.  Backus, "  20 
Cal.  137;  Francis  v.  Cox,  33  Cal.  323. 

7.  Setting  aside  judgment  by  default.  Judg- 
ment by  default  may  be  set  aside  on  the  ground 
of  surprise.  Bidleman  v.  Kewen,  2  Cal.  248.  It 
is  no  ground  for  setting  aside  a  judgment  by  de- 
fault that  the  defendant  did  not  know  that  the 
law  required  him  to  answer  in  ten  days.  Chase 
V.  Swain,  9  Cal.  130.  The  court  may  set  aside 
a  default  and  judgment  entered  during  vacation, 
when  there  has  been  no  service  of  summons  upon 
the  defendants.  Pico  v.  Carrillo,  7  Cal.  32.  Where 
two  defendants  are  jointly  sued,  and  service  had 
on  both,  the  clerk  of  the  court  cannot  enter  judg- 
ment by  default  against  one,  and  his  act  in  so 
doing  is  without  color  of  law  and  void,  and  may 
be  disregarded  or  set  aside.  Stearns  v.  Aguirre, 
7  Cal.  443;  see  Glidden  v.  Packard,  28  Cal.  651; 
Welsh  V.  Kirkpatrick,  30  Cal.  205;  89  Am.  Dec. 
85;  Willson  v.  Cleaveland,  30  Cal.  198;  Bond  v. 
Pacheco.  30  Cal.  530. 

8.  Setting  aside  judgment  on  ground  of  mis- 
take. A  judgment  will  not  be  set  aside  on  the 
application  of  a  creditor  of  the  judgment  debtor, 
upon  the  ground  that  the  judgment  was  taken  for 
more  than  was  actually  due  upon  the  note,  when 
it  appears  that  a  mistake  of  but  a  very  small 
amount  only  was  made  in  calculating  the  interest 
due  upon  the  note.    Ziel  v.  Dukes,  12  Cal.  482. 

9.  Amendment  made  nunc  pro  tunc.  A  court 
may    at    any    time    render   or    amend    a    judgment 


nunc  pro  tunc,  when  the  record  shows  that  the 
entry  on  the  minutes  does  not  correctly  give  what 
was  "the  judgment  of  the  court.  Morrison  v.  Dap- 
man,  3  Cal.  255.  But  after  adjournment  of  the 
term  the  court  cannot  direct  the  clerk  to  enter 
in  the  minutes  nunc  pro  tunc,  an  order  made  at 
the  adjourned  term,  if  there  is  nothing  in  the  rec- 
ord disclosing  the  fact  that  any  such  order  had 
ever  been  made.  Hegeler  v.  Ilenckell,  27  Cal. 
491;  Hranger  v.  Chevalier,  9  Cal.  172.  Entering 
judgments  nunc  pro  tunc  on  death  of  appellant. 
Black  V.  Shaw,  20  Cal.  68;  see  Swain  v.  Naglee, 
19  Cal.  127. 

10.  Judgment,  when  vacated.  This  section  of 
the  code  applies  not  only  to  cases  where  a  judg- 
ment has  been  taken  regularly  without  personal 
service,  as  upon  publication  of  summons,  but  also 
to  cases  of  judgments  entered  erroneously  with- 
out any  service  of  summons  or  appearance  of  de- 
fendant. Lewis  V.  Rigney,  21  Cal.  263.  Where  a 
judgment  is  taken  by  plaintiffs,  in  the  absence  of 
defendants  and  their  counsel,  and  this  absence  re- 
sults from  a  mutual  and  honest  mistake  between 
them  as  to  the  retainer  of  the  latter,  the  judg- 
ment will  be  set  aside.  McKinley  v.  Tuttle,  34 
Cal.  235.  After  a  conditional  order  to  set  aside- 
a  judgment,  the  court,  in  deciding  a  motion  to- 
place  the  cause  on  the  calendar  for  trial,  "orders- 
that  said  motion  be  and  the  same  is  hereby  denied,, 
and  the  judgment  will  remain."  Held:  that  this 
was  a  distinct  adjudication  that  the  previous  or- 
der had  not  taken  effect;  and  held  further,  that 
this  order  directing  the  judgment  remain,  being 
the  last  in  the  case,  and  not  having  been  appealed 
from,  it  took  the  place  of  any  previous  order  in 
reference  to  vacating  the  judgment.  Gregory  ▼. 
Haynes,  21  Cal.  443.  If  an  appeal  is  taken  from 
a  judgment  rendered,  the  court  below  loses  all 
control  over  the  judgment  and  cannot  amend  it. 
Brvan  v.  Berry,  3  Cal.  134. 

il.  When  defendant  is  permitted  to  verify  an- 
swer. Where  the  complaint  is  verified,  the  de- 
fendant may  be  allowed  to  verify  his  answer 
before  trial,  unless  it  is  shown  that  the  plaintiff 
is  thereby  taken  by  surprise.  Angier  v.  Master- 
son,  6  Cal.  61;  see  also  Laltimer  v.  Ryan,  20  Cal. 
628. 

12.  Amendment  after  reversal  of  judgment. 
When  a  final  judgment,  sustaining  demurrer  to 
the  complaint,  was  reversed,  the  plaintiiT  had  the 
right  to  amend,  on  application  to  the  court  below. 
Williamson  v.  Blattan,  9  Cal.  500;  see  also  Mc- 
Donald V.  Bear  River  etc.  Mining  Co.,  15  Cal. 
149;  Fish  v.  Reddington,  31  Cal.  186. 

13.  Amendments  to  findings.  Amending  bill  of 
costs.  A  judge  cannot  change  his  findings  of  facts 
after  the  entry  of  judgment  on  the  findings  and 
adjournment  of  the  term.  Carpentier  v.  Gardiner, 
29  Cal.  160;  Kimball  v.  Lohmas,  31  Cal.  154. 
Under  this  section  of  the  code,  the  court'  may,  in 
the  exercise  of  its  discretion,  allow  the  amend- 
ment of  a  bill  of  costs,  and  the  affidavit  accom- 
panying it.  Burnham  v.  Hays,  3  Cal.  115;  58 
Am.  Dec.  389. 

14.  Amending  return  of  sheriff.  A  sheriff  can- 
not, after  making  a  return,  amend  it  so  as  to 
affect  rights  which  had  already  vested  in  third 
parties.  Newhall  v.  Provost,  6  Cal.  87;  Webster 
V.  Haworth,  8  Cal.  25;  68  Am.  Dec.  287.  But 
sheriffs  should  be  allowed  to  amend  their  returns 
so  as  to  make  them  conform  to  the  true  state  of 
facts,  and  to  correct  errors  and  mistakes.  Gavilt 
V.  Doub,  23  Cal.  78. 

15.  Amendment  on  discovery  of  fraud.  Fraud 
discovered  after  suit  brought  will  entitle  the  party 
to  amend  his  action  so  as  to  include  it.  Truebody 
V.  Jacobson,  2  Cal.  269;  Matoon  v.  Eder,  6  Cal. 
61;  Davis  v.  Robinson,  10  Cal.  412. 

16.  Pleading  statute  of  limitations  by  way  of 
amendment.  The  plea  of  the  statute  of  limita- 
tions is  not  favored,  unless  in  aid  of  justice;  but 
it  should  be  permitted  to  be  pleaded  at  any  time, 
when  justice  will  be  attained  thereby.  Cooke  v. 
Spears,  2  Cal.  409;  56  Am.  Dec.  348;  Stuart  v. 
Lander,  16  Cal.  372:  76  Am.  Dec.  538.  Two 
defendants  filed  a  joint  plea  of  the  statute  of 
limitations,  and  the  plea  being  held  bad  as  to  one 
defendant,   the   court,   on   the   trial,   permitted   the 


§474 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


452 


other  defendant  to  amend  and  file  a  separate  plea 
of  the  statute.  This  was  held  not  to  be  error. 
Robinson  v.  Smith,  14  Cal.  254. 

17.  Referees  cannot  permit  amendments.  Ref- 
erees cannot  allow  parties  to  alter  or  amend  plead- 
ings, after  a  case  has  been  referred  to  them.  De 
la  Riva  v.  Berreyesa,  2  Cal.  195. 

18.  Substitution  of  papers  or  pleadings.  The 
substitution  of  papers  (or  pleadings  in  a  case)  is 
always  within  the  discretion  of  the  court,  and  no 
notice  of  the  motion  to  apply  for  it  need  be  given, 
when  the  notice  of  it  can  be  of  no  use.  Benedict 
V.  Cozzens,  4  Cal.  381.  But  where  a  pleading  in 
a  pending  action  is  lost,  its  place  can  only  be 
supplied  by  motion  based  on  affidavits,  showing 
what  the  lost  pleading  contained,  and  a  service 
of  personal  notice  upon  the  opposite  party,  which 
notice  must  be  sufficiently  explicit  to  advise  him 
of  what  is  intended,  as  well  as  to  enable  him  to 
controvert  the  affidavits  submitted.  People  v. 
Cazalis,  27  Cal.  522. 

19.  Amendments  should  be  readily  and  freely 
allowed.  The  greatest  latitude  and  liberality 
should  be  e.xercised  in  permitting  amendments  to 
pleading,  so  that  delays  may  be  avoided  and  jus- 
tice promoted.  Butler  v.  King,  10  Cal.  342; 
Roland  v.  Krevenhagen,  18  Cal.  455;  McMillan 
V.  Dana,  18  Cal.  339;  Smith  v.  Yreka  Water  Co., 
14  Cal.  201. 

20.  Amendments  during  progress  of  trial.  The 
court  may  allow  pleadings  to  be  amended  so  as  to 
supply  a  defect  or  omission,  even  after  the  com- 
mencement of  a  trial.  Gavitt  v.  Doub,  23  Cal. 
78.  A  court  may  permit  a  plaintiff,  after  the  de- 
fendants have  closed  their  case  and  before  the 
case  is  submitted,  to  supply  an  omission  in  the 
testimony  occasioned  by  mistake  or  inadvertence; 
such  action  is  no  ground  for  reversal,  unless  it 
appear  that  injustice  has  been  done  by  an  abuse 
of  discretion.  Priest  v.  Union  Canal  Co.,  6  Cal. 
170.  After  the  motion  for  a  nonsuit,  the  court 
may,  upon  terms,  permit  an  amendment  of  the 
complaint,  if  it  would  not  operate  as  a  surprise 
upon  the  defendant;  but  if  this  is  not  done,  the 
plaintiff  cannot  recover.  Farmer  v.  Cram,  7  Cal. 
13.5.  The  court  may  permit,  after  the  close  of 
plaintiff's  evidence,  the  complaint  to  be  amended 
by  the  addition  of  the  name  of  another  party 
plaintiff,  if  it  does  not  affect  the  substantial  rights 
of  the  parties.  Polk  v.  Coffin,  9  Cal.  56.  If  the 
defendant  in  an  action  to  recover  possession  of 
real  estate  has  acquired  title  to  the  demanded 
premises  pending  the  litigation,  and  has  not 
pleaded  such  title  in  a  supplemental  answer,  and 
for  that  reason  his  proof  of  such  title  is  excluded 
by  the  court,  it  is  not  an  abuse  of  discretion  of 
the  court  to  deny  his  application  made  during  the 


trial  for  permission  to  amend  his  answer  so  as  to 
obviate  the  objection.  McMinn  v.  O'Connor,  27 
Cal.  248.  If  testimony  offered  by  the  defendant 
is  rejected  by  the  court  because  an  averment  of 
the  complaint  to  which  it  relates  is  not  properly 
denied  in  the  answer,  the  defendant  should  be 
allowed  to  amend  his  denial  if  he  asks  to  do  so. 
When  it  is  discovered,  during  the  progress  of  the 
trial,  the  pleadings  are  so  defective  that  the  real 
subject  of  dispute  cannot  be  finally  determined, 
the  court,  if  an  application  is  made  therefor, 
should  allow  amendments  on  such  terms  as  may 
be  just.  Stringer  v.  Davis,  30  Cal.  318.  The 
.  answer  may  be  verified  even  after  the  close  of  the 
case  on  the  part  of  the  plaintiff.  Arrington  v. 
Tupper,  10  Cal.  464.  Two  defendants  filed  a 
joint  plea  of  the  statute  of  limitations,  and  the 
plea  being  held  bad  as  to  one  defendant,  the 
court,  on  the  trial,  permitted  the  other  defend- 
ant to  file  a  separate  plea  of  the  statute.  This 
was  not  such  a  gross  abuse  of  discretion  as  to 
enable  the  supreme  court  to  revise  it.  Robinson 
V.  Smith,  14  Cal.  254.  The  court  below  has 
power  to  grant  amendments  whenever,  at  any 
stage  of  the  trial,  they  will  assist  the  purposes 
of  justice,  and  this  power  should  be  liberally  ex- 
ercised to  secure  a  fair  and  speedy  trial  on  the 
merits.  Lestrade  v.  Earth,  17  Cal.  285;  see 
Peters  v.  Foss,  16  Cal.  357.  When  it  appears  by 
the  plaintiff's  testimony  that  there  is  a  misjoinder 
of  persons  who  should  have  been  made  plaintiffs, 
and  a  motion  for  a  nonsuit  is  made  on  this  ground, 
the  court  may  allow  an  amendment  by  adding  the 
name  of  a  co-plaintiff.  Acquital  v.  Crowell,  1  Cal. 
192.  A  motion  to  amend  a  complaint  is  not  too 
late  because  made  after  the  plaintiff  has  closed 
his  testimony  and  the  defendant  has  moved  for  a 
nonsuit.  A  motion  to  amend  is  always  in  time 
when  it  immediately  follows  an  objection  to  the 
complaint  or  answer.  Valencia  v.  Couch,  32  Cal. 
340;  91  Am.  Dec.  589. 

21.  Amendments,  where  made.  Amendments 
correcting  mistakes,  etc.,  should  be  made  by  mo- 
tion in  the  court  below,  not  in  the  supreme  court. 
Whitney  v.  Buckman,  13  Cal.  536;  Anderson  v. 
Parker,  6  Cal.  197;  Guy  v.  Ide,  6  Cal.  99;  65  Am. 
Dec.  490; 

22.  Supplemental  complaint  as  amendment. 
Facts  which  occur  subsequent  to  the  filing  of  the 
original  complaint,  and  which  change  the  liabili- 
ties of  the  defendant,  and  in  consequence,  the 
character  of  the  judgment  which  is  sought,  cannot 
be  incorporated  with  the  original  complaint  by  an 
amendment  without  presenting  averments  incon- 
sistent with  the  date  of  the  action.  They  must 
be  presented  in  the  form  of  a  supplemental  com- 
plaint.   Van  Maren  v.  Johnson,  15  Cal.  311. 


§  474.  Suing  a  party  by  a  fictitious  name,  when  allowed.  When  the 
plaintiff  is  ignorant  of  the  name  of  a  defendant,  he  must  state  that  fact  in 
the  complaint,  and  such  defendant  may  be  designated  in  any  pleading  or 
proceeding  by  any  name,  and  when  his  true  name  is  discovered,  the  plead- 
ing or  proceeding  must  be  amended  accordingly. 

Effect  on  limitations.  A  defendant,  sued 
and  served  under  a  fictitious  name,  where 
the  plaintiff  did  not  know  his  true  name, 
is  a  party  to  the  action  from  its  com- 
mencement; and  this  date  must  control  for 
the  purposes  of  the  statute  of  limitations. 
Hoffman  v.  Keeton,  132  Cal.  195;  6i  Pac. 
264. 

Ignorance  of  true  name  must  be  real. 
The  plaintiff's  ignorance  of  the  true  name 
of  the  defendant  must  be  real,  and  not 
feigned;  it  must  not  be  "willful"  igno- 
rance, or  such  as  might  be  removed  by  mere 
inquiry,  or  a  resort  to  means  of  informa- 
tion easily  accessible.  Kosencrantz  v. 
Eogers,  40   Cal.   489;   Bachman  v.  Cathry, 


Legislation  §  474.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  69  (New  York  Code, 
§  175),  which  (1)  did  not  have  the  words  "he 
must  state  that  fact  in  the  complaint,  and,"  and 
(2)  had  the  word  "may"  instead  of  "must,"  be- 
fore "be  amended." 

Suing  under  fictitious  name.  The  de- 
fendant may  be  sued  under  a  fictitious 
name,  only  when  the  plaintiff  does  not 
know  his  true  name;  and  although  the  in- 
dividual who  is  served  under  such  fictitious 
name  may  be  substituted  as  a  defendant, 
yet,  until  such  substitution  is  made,  the 
rights  of  other  parties  to  the  action  will 
not  be  affected  by  such  service  nor  by  his 
appearance.  Bachman  v.  Cathry,  113  Cal. 
498;  45  Pac.  814. 


453 


FICTITIOUS  NAiME — ALLEGATION!: 


AMENDMENT — JUDGMENT, 


^■iU 


113  Cal.  498;  45  Pac.  814.  A  party  sued 
under  a  fictitious  name  is  entitled  to  have 
the  service  of  summons  set  aside  and  the 
action  dismissed,  upon  a  showing  that  the 
]>laiutiff  could  have  ascertained  his  true 
nam©  by  examining  the  records  of  the 
countv.  Irving  v.  Carpentier,  7U  Cal.  23; 
11  Fa'c.  391. 

Allegation  of  ignorance  of  defendant's 
true  name.  A  party,  sued  and  served  with 
summons  under  a  fictitious  name,  though 
not  named  as  a  defeudant,  is  entitled  to 
have  such  service  set  aside  and  to  have 
the  action  dismissed,  as  against  him,  where 
there  is  no  averment  that  the  plaintiff  did 
not  know  the  true  name  of  the  person  in- 
tended to  be  made  a  defendant,  which 
might  easily  have  been  learned.  Rosen- 
crantz  v.  Rogers,  40  Cal.  489.  Parties  sued 
under  fictitious  names,  where  the  comi)laiut 
does  not  show  who  are  intended  to  be  sued, 
are  not  affected  by  the  judgment.  Ford 
v.  Doyle,  37  Cal.  346;  People  v.  Herman,  45 
Cal.  689.  In  an  action  to  annul  a  cer- 
tificate of  purchase  of  state  lands,  where 
there  is  no  allegation  that  the  name  of 
the  holder  is  unknown,  there  is  no  founda- 
tion for  bringing  an  action  against  a 
fictitious  person,  and  no  authority  to  make 
service  of  summons  by  publication.  Peo- 
ple v.  Herman,  45  Cal.  689.  Where  the 
fact  that  the  true  name  of  a  defendant, 
sued  under  a  fictitious  name,  was  unknown, 
is  alleged  in  the  complaint,  followed  by  a 
prayer  that,  when  discovered,  the  com- 
plaint might  be  arhended  to  allege  his  true 
name,  and  an  injunction  followed  the  com- 
plaint, directed  to  and  served  upon  the 
defendant  under  a  fictitious  name,  and  in 
the  affidavit  for  a  w^rit  of  attachment  the 
defendant  was  described  as  the  person 
served  with  the  injunction,  and  at  the 
hearing  the  court  found  the  true  name  of 
the  defendant,  and  so  stated  it  in  the 
judgment,  this  is  sufficient.  Ex  parte  Ah 
Men,  77  Cal.  198;  11  Am.  St.  Rep.  263; 
19  Pac.  380.  A  plaintiff's  allegation,  that 
he  is  ignorant  of  the  name  of  a  defendant 
su«d  under  a  fictitious  name,  is  not  traver- 
sable, either  by  the  answer  or  in  any  other 
mode.  Irving  v.  Carpentier,  70  Cal.  23;  11 
Pac.   391. 

Amendment  of  complaint.  By  §  39  of 
the  Practice  Act  it  was  provided  that  the 
complaint  should  contain  the  names  of  the 
parties  to  the  action,  plaintiff  and  defend- 
ant; and  it  was  held  that  there  was  no 
conflict  between  §  39  and  §  69;  the  former 
gave  the  general  rule,  and  the  latter  pro- 
vided an  exception  to  it.  Rosencrantz  v. 
Rogers,  40  Cal.  489.  By  §  69  of  the  Prac- 
tice Act  it  w^as  provided  that  when  the 
true  name  of  the  defendant  was  discov- 
ered the  pleading  might  be  amended,  where 
it  was  intended  that  the  judgment  should 
bind  persons  sued  by  fictitious  names: 
there  is  as  little  room  for  question  that 
such  was  the  proper  course  as  there  would 
be  where  the  plaintiff  discovers   that,   by 


mistake,  he  has  sued  the  defendant  by  a 
wrong  name.  McKinlay  v.  Tuttlc,  42  Cal. 
57U.  No  judgment  can  be  taken  and  en- 
forced against  a  party,  sued  under  a 
fictitious  name,  where  the  complaint  is  not 
amended  by  inserting  his  true  name  when 
ascertained.  Farris  v.  Merritt,  03  Cal.  118. 
The  complaint  must  be  amended  by  in- 
serting the  true  names,  wlien  ascertained, 
of  parties  sued  under  fictitious  names, 
either  before  or  after  service  of  process, 
so  as  to  allege  that  they  are  the  persons 
to  be  bound  by  the  judgment.  McKinlay 
V.  Tuttle,  42  Cal.  570;  Campbell  v.  Adams, 
50  Cal.  203;  Baldwin  v.  Morgan,  50  Cal. 
585;  Farris  v.  Merritt,  63  Cal.  118.  A 
defendant,  sued  and  served  under  a  ficti- 
tious name,  who  appears  and  answers,  does 
not  thereby  waive  an  amendment  to  the 
complaint,  describing  him  by  his  true 
name.  McKinlay  v.  Tuttle,  42  Cal.  570. 
An  amendment  of  the  complaint,  inserting 
the  defendant's  true  name,  when  sued  un- 
der a  fictitious  name,  does  not  change  the 
cause  of  action.  Farris  v.  Merritt,  63  Cal. 
118. 

Service  of  amended  complaint.  Where 
the  complaint  is  amended  when  the  case 
comes  up  for  trial,  by  inserting  the  true 
name  of  a  defendant  sued  under  a  fictitious 
name,  service  of  the  amended  complaint  is 
not  required  to  be  made  on  him,  nor  is 
he  entitled  to  ten  days  in  which  to  answer. 
Brock  V.  Martinovich,  55  Cal.  516. 

Validity  of  judgment,  where  name  is 
fictitious.  A  judgment  by  default,  against 
a  defendant  sued  under  a  wrong  name,  is 
not  void,  where  he  was  served  with  pro- 
cess. Welsh  v.  Kirkpatrick,  30  Cal.  202; 
89  Am.  Dec.  85.  Where  a  party,  sued  and 
served  under  a  fictitious  name,  answers, 
the  judgment  against  him  is  not  voiil,  and 
cannot  be  attacked  collaterally,  though 
the  complaiut  was  not  amended  by  insert- 
ing his  true  name.  Campbell  v.  Adams,  50 
Cal.  203;  Baldwin  v.  Morgan,  50  Cal.  585. 
Where  a  company,  sued  under  a  wrong 
name,  answers,  and  judgment  is  rendered 
against  it  under  its  true  name,  the  supreme 
court  will,  on  appeal,  direct  the  complaint 
to  be  amended,  as  of  a  date  anterior  to  the 
judgment,  by  substituting  the  true  name. 
Mahon  v.  San  Rafael  Turnpike  Road  Co., 
49  Cal.  269.  A  judgment  against  a  party 
sued  under  a  fictitious  name  will  not  be 
reversed  on  appeal,  but,  in  order  to  sup- 
port the  judgment,  the  lower  court  will 
be  directed  to  amend  the  complaint  as  of 
a  date  ])rior  to  the  judgment  (Alameda 
County  V.  Crocker,  125  Cal.  101;  57  Pac. 
766;  Baldwin  v.  Bornheimer,  48  Cal.  433; 
Blackburn  v.  Bucksport  etc.  R.  R.  Co.,  7 
Cal.  App.  649;  95  Pac.  668);  but  such  a 
judgment  was  reversed  in  McKinlay  v. 
Tuttle,  42  Cal.  570;  San  Francisco  v.  Burr, 
4  Cal.  Unrep.  631;  36  Pac.  771.  Where  a 
defendant  is  sued  under  a  fictitious  name, 
but  is  served  under  his  true  name,  the 
omission  to  amend  the  complaint  by  sub- 


§475 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


454 


stituting  his  true  name  is  an  irregularity 
for  which  the  decree  will  be  reversed;  but 
the  judgment  is  not  void,  nor  can  it  be 
attacked  collaterally.  Baldwin  v.  Morgan, 
50  Cal.  585.  Where  a  party  defendant  is 
sued  and  answers  under  a  wrong  name,  and 
judgment  is  entered  against  him  accord- 
ingly, no  advantage  can  be  taken  of  the 
misnomer.  McCreery  v.  Everding,  54  Cal. 
168. 

Method  of  pleading  misnomer.  A  plea 
in  abatement  was  formerly  the  proper  way 
to   raise   the   objection   of   misnomer;   and 


the  question  whether  a  defendant  has  been 
sued  under  his  proper  name  is  probably 
nothing  more  than  matter  in  abatement, 
and  is  analogous  to  the  case  of  a  mis- 
nomer, which  never  renders  a  judgment 
void.  Welsh  v.  Kirkpatrick,  30  Cal.  202; 
89  Am.  Dec.  85. 

CODE  COMMISSIONERS'  NOTE.  The  words, 
"he  must  state  that  fact  in  the  complaint,"  are 
added  to  the  original  section,  so  that  it  may  ap- 
pear upon  the  face  of  the  proceedings  that  the 
name  is  a  fictitious  one.  See,  generally,  Rosen- 
crantz  v.  Rogers,  40  Cal.  491;  Morgan  v.  Thrift, 
2  Cal.  562. 


§  475.  No  error  or  defect  to  be  regarded  unless  it  affects  substantial 
rights.  The  court  must,  in  ever}^  stage  of  an  action,  disregard  any  error, 
improper  ruling,  instruction,  or  defect,  in  the  pleadings  or  proceedings 
which,  in  the  opinion  of  said  court,  does  not  affect  the  substantial  rights  of 
the  parties.  No  judgment,  decision,  or  decree  shall  be  reversed  or  affected 
by  reason  of  any  error,  ruling,  instruction,  or  defect,  unless  it  shall  appear 
from  the  record  that  such  error,  ruling,  instruction,  or  defect  was  preju- 
dicial, and  also  that  by  reason  of  such  error,  ruling,  instruction,  or  defect, 
the  said  party  complaining  or  appealing  sustained  and  suffered  substantial 
injury,  and  that  a  different  result  would  have  been  probable  if  such  error, 
ruling,  instruction,  or  defect  had  not  occurred  or  existed.  There  shall  be 
no  presumption  that  error  is  prejudicial,  or  that  injury  was  done  if  error  is 
shown. 


Similar  provision.    Pen.  Code,  §§  1258,  1404. 

Legislation  §  475.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  71  (New  York  Code, 
§  176),  which  read:  "The  court  shall,  in  every 
stage  of  an  action,  disregard  any  error  or  defect 
in  the  pleadings,  or  proceedings,  which  shall  not 
affect  the  substantial  rights  of  the  parties;  and 
no  judgment  shall  be  reversed  or  affected  by  rea- 
son of  such  error  or  defect."  When  enacted  in 
1872,  (1)  the  word  "shall,"  after  "The  court," 
was  changed  to  "must,"  and  (2)  the  same_  word, 
before  "not  affect,"  was  changed  to  "does." 

3.   Amended  by  Stats.  1S97,  p.  44. 

Construction  of  section.  This  section 
applies  to  immaterial  errors  or  defects  in 
the  statement  of  an  election  contest 
(Chatham  v.  Mansfield,  1  Cal.  App.  298; 
82  Pac.  343),  and  also  to  those  in  the  form 
of  a  judgment  (Sherwood  v.  Wallin,  1  Cal. 
App.  532;  82  Pac.  566),  and  to  those  in 
rendering  a  judgment  against  a  wife  alone, 
in  a  joint  action  against  her  and  her  hus- 
band (McKee  v.  Cunningham,  2  Cal.  App. 
684;  84  Pac.  260),  and  to  those  in  holding 
a  decree  to  be  valid.  Fogg  v.  Perris  Irri- 
gation Dist.,  154  Cal.  209;  97  Pac.  316. 

Substantial  injury  necessary.  A  judg- 
ment will  not  be  reversed,  unless  the  com- 
plaining party  has  suffered  substantial 
injury.  Bird  v.  Utica  Gold  Mining  Co.,  2 
Cal.  App.  674;  84  Pac.  256;  Block  v. 
Kearney,  6  Cal.  Unrep.  660;  64  Pac.  267; 
Bollinger  v.  Bollinger,  154  Cal.  695;  99 
Pac.  196;  Compressed  Air  etc.  Co.  v.  West 
San  Pablo  Land  etc.  Co.,  9  Cal.  App.  361; 
99  Pac.  531;  Preston  v.  Central  California 
etc.  Irrigation  Co.,  11  Cal.  App.  190;  104 
Pac  462;  Bradley  v.  Bush,  11  Cal.  App. 
287;    104  Pac.  845;   Peters   v.   Peters,   15G 


Cal.  32;  23  L.  E.  A.  (N.  S.)  699;  103  Pac. 
219;  Fogg  v.  Perris  Irrigation  Dist.,  1j4 
Cal.  209;  97  Pac.  316;  Dennis  v.  Crocker- 
Huflfman  Land  etc.  Co.,  6  Cal.  App.  58;  91 
Pac.  425.  Error  without  prejudice  is  not 
a  ground  for  reversal.  Reynolds  v.  Lin- 
coln, 71  Cal.  183;  9  Pac.  176;  12  Pac.  449; 
Allen  V.  McKay,  139  Cal.  94;  72  Pac.  713. 
A  judgment  will  not  be  reversed  for  a 
mere  technical  error  of  law,  which,  after 
the  case  has  been  tried,  is  of  too  little 
consequence  to  be,  in  any  substantial  sense, 
a  prejudicial  error:  such  error,  unaccom- 
panied by  injury,  will  be  disregarded  on 
appeal.  Sloaue  v.  Southern  California  Ry. 
Co.,  Ill  Cal.  668;  32  L.  E.  A.  193;  44 
Pac.  320;  Baker  v.  Southern  California  Ry. 
Co.,  114  Cal.  501;  46  Pac.  604;  Smith  v. 
Smith,  119  Cal.  183;  48  Pac.  730,  51  Pac. 
183;  Hirshfeld  v.  Weill,  121  Cal.  13;  53 
Pac.  402;  Holland  v.  McDade,  125  Cal.  353; 
58  Pac.  9;  Stephenson  v.  Deuel,  125  Ca2 
656;  58  Pac.  258;  Foerst  v.  Kelso,  131  Cal. 
376;  63  Pac.  681.  Errors  not  affecting  the 
substantial  rights  of  the  parties  may  be 
disregarded  (Gassen  v.  Bower,  72  Cal.  555; 
14  Pac.  206);  they  are  unavailing  on  ap- 
peal, even  when  the  subject  of  exception, 
and  much  less  so  when  permitted  without 
exception.  Paige  v.  O'Neal,  12  Cal.  483. 
When  a  case  has  been  tried  and  judgment 
rendered  on  the  facts,  it  must  appear  that 
some  substantial  right  of  a  party  has  been 
affected,  or  some  prejudicial  error,  as  dis- 
tinguished from  an  abstract  error,  suffere(l 
by  him,  in  order  to  warrant  a  reversal. 
Eooney   v.    Gray   Bros.,    145    Cal.    753;    79 


455 


JUDGMENTS — REVERSAL INJURY,  WHAT  NECESSARY. 


§475 


Pac.  523.  A  misnomer  iu  entitling  the 
name  of  the  court,  on  the  face  of  the  com- 
plaint only,  is  a  defect  not  affecting  the 
substantial  rights  of  the  defendant.  Ex 
parte  Fil  Ki,  79  Cal.  584;  21  Pac.  974. 
Where  the  substantial  rights  of  the  par- 
ties have  not  been  affected  by  a  misjoinder 
of  causes  of  action,  a  judgment,  rendered 
after  the  trial  of  the  case  upon  its  merits, 
should  not  be  reversed  because  the  court 
overruled  the  demurrer  for  such  mis- 
joinder. Eeynolds  v.  Lincoln,  71  Cal.  183; 
9  Pac.  176;  12  Pac.  449;  Asevado  v.  Orr, 
100  Cal.  293;  34  Pac.  777;  Hirshfeld  v. 
Weill,  121  Cal.  13;  53  Pac.  402.  A  judg- 
ment should  not  be  reversed  because  of 
an  alleged  error  or  defect  in  the  summons, 
which  is  claimed  not  to  state  the  cause  and 
general  nature  of  the  action,  where  such 
error  or  defect  is  more  technical  than 
real.  King  v.  Blood,  41  Cal.  314.  A  judg- 
ment, otherwise  valid,  will  not  be  reversed, 
merely  because  the  action  is  brought  in 
the  name  of  a  reclamation  district,  instead 
of  in  the  name  of  the  people;  the  real 
party  in  interest  being  the  reclamation  dis- 
trict. Reclamation  District  v.  Hagar,  66 
Cal.  54;  4  Pac.  945.  An  error  of  the 
superior  court  in  vacating  a  void  order 
made  by  a  justice  of  the  peace,  is  a  harm- 
less error.  Baird  v.  Justice's  Court,  11 
Cal.  App.  439;  105  Pac.  259.  Where  the 
complaint  alleged  that  the  defendant  was 
indebted  to  the  plaintiff  therein  in  the 
sums  "hereinbefore"  stated,  but  in  the 
copy  of  the  complaint  served  on  the  de- 
fendant with  the  copy  of  the  summons  the 
word  "hereinbefore"  was  written  "herein- 
after," the  variance  is  immaterial:  it  could 
not  have  misled  the  defendant  nor  have 
affected  his  substantial  rights.  Fraser  v. 
Oakdale  Lumber  etc.  Co.,  73  Cal.  187;  14 
Pac.  829.  Harmless  error  in  giving  in- 
structions is  no  ground  for  reversal  of 
judgment.  Los  Angeles  Cemetery  Ass'n 
v.  Los  Angeles,  103  Cal.  461;  37  Pac.  375; 
Chapell  V.  Schmidt,  104  Cal.  511;  38  Pac. 
892;  People  v.  Stanton,  106  Cal.  139;  39 
Pac.  525;  Baker  v.  Borello,  131  Cal.  615; 
63  Pac.  914;  Dunlap  v.  Plummer,  1  Cal. 
App.  426;  82  Pac.  445.  Where  dates  in 
the  complaint  and  in  the  finding  are  erro- 
neous, they  should  be  corrected  by  amend- 
ment; but  where  they  are  harmless,  the 
judgment  will  not  be  reversed  because 
thereof.  Thomas  v.  Jameson,  77  Cal.  91; 
19  Pac.  177.  Where,  before  judgment,  de- 
livery of  property  sought  to  be  recovered 
is  made  to  the  plaintiff,  a  judgment  in 
favor  of  the  plaintiff  for  its  possession  is 
not  void  or  erroneous  because  not  in  the 
alternative,  and  cannot  be  reversed.  Clau- 
dius V.  Aguirre,  89  Cal.  501;  26  Pac.  1077. 
The  sufficiency  of  a  notice  is  not  impaired 
by  its  being  directed  to  the  attorneys  for 
the  "executor,"  where  there  were  three 
executors;  the  amendment,  in  such  case, 
follows  as  a  matter  of  course.  Estate  of 
Nelson,  128  Cal.  242;  60  Pac.  772.     Where 


an  amende<l  decree,  rendered  at  the  same 
time  as  the  final  decree,  is  simply  what 
the  original  decree  should  have  been,  and 
does  no  injustice  to  the  defendant,  it  will 
not  be  disturbed  on  appeal  on  account  of 
an  alleged  irregularity  not  affecting  the 
merits.  Gronfier  v.  Minturn,  5  Cal.  492. 
The  order  in  which  motions  are  overruled 
does  not  in  any  way  affect  the  substantial 
rights  of  the  parties:  this  is  a  harmless 
irregularity,  and  will  be  disregarded  on 
appeal.  Pennie  v.  Visher,  94  Cal.  323;  29 
Pac.  711. 

Error  must  change  result.  No  judgment 
will  be  reversed  for  error,  unless  a  differ- 
ent result  would  have  been  probable  but 
for  the  error.  Estate  of  Morey,  147  Cal. 
495;  82  Pac.  57.  To  reverse  the  judgment 
of  the  court  below,  and  send  the  case  back 
for  a  new  trial,  when  the  only  result  would 
be  a  judgment  the  same  as  that  appealed 
from,  would  be  an  unjust  hardship  on  the 
party,  and  a  sacrifice  of  substance  to 
form.  First  Nat.  Bank  v.  Henderson,  101 
Cal.  307;  35  Pac.  899.  A  judgment,  other- 
wise properly  rendered,  will  not  be  re- 
versed because  of  an  immaterial  error  iu 
apportioning  costs,  which,  if  corrected, 
would  not  benefit  the  appellant.  George  v. 
Silva,  68  Cal.  272;  9  Pac.  257.  Where  the 
complaint,  on  its  face,  shows  that  the 
plaintiff  could  not,  in  any  event,  recover 
upon  the  cause  of  action  set  forth  therein, 
and  no  amendment  could  cure  it,  no  erro- 
neous ruling  at  the  trial  will  justify  a 
reversal  of  the  judgment  against  him. 
Peters  v.  Peters,  156  Cal.  32;  23  L.  R.  A. 
(N.  S.)  699;  103  Pac.  219.  The  mere  fail- 
ure to  include  in  the  judgment  a  clause 
which  could  not  have  any  operative  effect, 
or  confer  any  right  or  protection  upon 
either  the  plaintiff  or  the  defendant,  does 
not  affect  the  substantial  rights  of  either 
party,  and  is  not  a  sufficient  ground  for 
reversal  of  the  judgment.  Claudius  v. 
Aguirre,  89  Cal.  501;  26  Pac.  1077.  An 
objection,  by  demurrer,  that  the  plaintiff 
improperly  joined  causes  of  action,  be- 
comes immaterial,  where  judgment  was 
given  for  only  one  of  the  causes  of  action. 
Harris  v.  Smith,  132  Cal.  316;  64  Pac.  409. 

Injury  must  be  to  appellant.  This  sec- 
tion applies  in  ease  of  immaterial  errors 
or  defects  in  a  judgment  in  favor  of  a  de- 
fendant, in  whose  interests  the  plaintiff 
has  no  concern.  People  v.  Eea,  2  Cal.  App. 
109;  83  Pac.  165.  A  judgment  or  order 
will  not  be  reversed  for  any  error  that 
does  not  injure  the  appellant.  Peters  v. 
Peters,  156  Cal.  32;  23  L.  R.  A.  (N.  S.)  699; 
103  Pac.  219.  Where  an  appellant  has  no 
interest  in  the  subject-matter  of  the  de- 
cree, and  he  is  in  no  way  aggrieved  there- 
by, the  action  of  the  court,  conceding  that 
it  erred,  will  not  be  reviewed  on  appeal. 
Foster  v.  Bowles,  138  Cal.  449;  71  Pac.  49o. 
A  decree  declaring  the  plaintiff  the  owner 
of  land,  and  quieting  his  title  thereto, 
although  it  might    have    been    drawn  for 


§475 


MISTAKES   IN    PLEADINGS   AND   AMENDMENTS. 


456 


a  reconveyance,  or  might  have  ordered  a 
cancellation  of  the  deeds,  cannot  injure  a 
defendant  who  has  no  beneficial  interest  in 
the  land.  Jones  v.  Jones,  140  Cal.  587; 
74  Pac.  143.  Upon  appeal  by  one  defend- 
ant from  a  several  judgment  against  him, 
which  is  supported  by  the  complaint,  it 
does  not  concern  him  that  there  is  no 
separate  finding  upon  the  issue  made  by 
the  separate  answer  of  a  co-defendant  not 
appealing.  Dobbs  v.  Purington,  13(i  Cal. 
70;  68  Pac.  323.  The  failure  of  the  court 
to  find  upon  a  plea  of  the  statute  of  limi- 
tations, set  up  by  the  respondent,  is  en- 
tirely immaterial  to  the  appellant.  Merrill 
V.  Clark,  103  Cal.  367;  37  Pac.  238.  Where, 
in  an  action  against  two  defendants,  the 
jury  rendered  a  verdict  for  the  "defend- 
ant," the  defect  is  immaterial,  and  no  sub- 
stantial rights  of  the  plaintiff  are  affected. 
Willard  v.  Archer,  63  Cal.  33. 

Matters  of  discretion.  Judgment  will 
not  be  reversed  because  of  the  action  of 
the  court  in  matters  as  to  which  it  has 
discretion,  where  such  discretion  is  not 
abused.    Lee  v.  Southern  Pacific  E.  E.  Co., 

101  Cal.  118;  35  Pac.  572;  Wolff  v.  Wolff, 

102  Cal.  433;  36  Pac.  767,  1037;  Stockton 
etc.  Agricultural  Works  v.  Houser,  103 
Cal.  377;  37  Pac.  179.  The  action  of  the 
trial  court  in  refusing  to  reopen  the  case, 
after  the  close  of  the  trial,  to  allow  the 
introduction  of  additional  evidence,  is  not 
an  abuse  of  discretion,  where  there  was  no 
excuse  for  not  having  produced  the  evi- 
dence at  the  trial.  Consolidated  Nat.  Bank 
v.  Pacific  Coast  S.  S.  Co.,  95  Cal.  1;  29  Am. 
St.  Eep.  85;  30  Pac.  96.  Where  two  de- 
fendants filed  a  joint  plea  of  the  statute  of 
limitations,  and  the  plea  was  held  bad  as 
to  one,  and  the  other  was  permitted  to 
file  a  separate  plea,  there  is  not  such  a 
gross  abuse  of  discretion  as  to  enable  the 
appellate  court  to  revise  it.  Eobinson  v. 
Smith,  14  Cal.  254.  An  order  granting  a 
new  trial  will  not  be  reversed  on  the 
ground  of  surprise,  unless  there  has  been 
an  abuse  of  discretion  in  the  court  below. 
Nooney  v.  Mahoney,  30  Cal.  226.  Where 
the  defendant  asks  leave,  at  the  trial,  to 
verify  his  answer,  pending  the  motion  of 
the  plaintiff  to  strike  it  out,  the  refusal 
of  the  court  to  allow  the  defendant  to  do 
so  is  such  abuse  of  discretion  as  amounts 
to  error.  Lattimer  v.  Eyan,  20  Cal.  628. 
Where  the  defendant  filed  a  copy  of  the 
original  verified  answer  by  mistake,  which 
was  not  discovered  until  after  the  case  was 
opened  to  the  jury,  the  refusal  of  the  court 
to  allow  the  defendant  to  correct  the  error 
was  an  abuse  of  discretion  requiring  the 
reversal  of  the  judgment  and  the  granting 
of  a  new  trial.  Arrington  v.  Tupper  10 
Cal.  464. 

Record  must  show  error.  A  judgment 
rendered  upon  a  complaint,  after  a  demur- 
rer thereto  has  been  improperly  overruled, 
must  be  reversed  upon  appeal,  unless  it 
clearly  appears  that  no  injury  to  the  de- 


fendant resulted  therefrom.  Thelin  v. 
Stewart,  100  Cal.  372;  34  Pac.  861.  The 
ruling  of  the  trial  court  in  excluding 
depositions  in  behalf  of  the  plaintiff  can- 
not be  deemed  prejudicial,  where  the  tran- 
script does  not  show  their  contents  or 
materiality.  Glenmore  Distilling  Co.  v. 
Craig,  128  Cal.  264;  60  Pac.  858.  Where 
an  action  upon  a  lost  note  was  unsuccess- 
fully defended  after  tender  of  an  indem- 
nity bond  in  the  complaint,  and  the  record 
on  appeal  does  not  show  what  costs  had 
accrued  at  the  time  the  bond  was  filed,  or 
when  it  was  tendered,  the  judgment  for 
costs  will  not  be  disturbed  on  appeal. 
Farmers'  Exchange  Bank  v.  Altura  Gold 
Mill  etc.  Co.,  129  Cal.  263;  61  Pac.  1077. 

Immaterial  defects  in  complaint.  This 
section  applies  in  case  of  immaterial  errors 
or  defects  in  a  complaint.  Pettit  v.  For- 
syth, 15  Cal.  App.  149;  113  Pac.  892. 
Although  a  pleading  is  subject  to  criti- 
cism for  ambiguity,  yet  a  reversal  of  the 
judgment  is  not  justified  therefor,  unless 
it  is  radically  defective.  Gassen  v.  Bower, 
72  Cal.  555;  14  Pac.  206.  Where  the  aver- 
ments of  a  complaint  are  simply  uncertain 
and  defective,  but  are  sufficient  when 
tested  only  by  a  general  demurrer,  and 
substantially  state  a  cause  of  action,  a  re- 
versal of  the  judgment  is  not  justified. 
Grant  v.  Sheerin,  84  Cal.  197;  23  Pac.  1094. 
A  judgment  will  not  be  reversed  for  un- 
certainty of  the  complaint  alone,  where 
the  answer  and  trial  show  that  the  defend- 
ant was  not  misled  to  his  injury.  Williams 
V.  Casebeer,  126  Cal.  77;  58  Pac.  380.  A 
complaint,  defective  in  form,  but  not  in 
substance,  can  be  reached  only  by  special 
demurrer  that  it  is  ambiguous  or  uncer- 
tain; but  such  defect,  not  affecting  the 
substantial  rights  of  the  parties,  will  be 
disregarded  on  appeal.  Eachus  v.  Los 
Angeles,  130  Cal.  492;  80  Pac.  147.  Absurd 
and  inconsistent  allegations  in  a  complaint, 
the  truth  of  which  is  impossible,  may  be 
disregarded  as  surplusage.  Board  of  Super- 
visors V.  Bird,  31  Cal.  66.  A  complaint 
stating  facts  sufficient  to  sustain  a  judg- 
ment for  damages,  but  not  containing  a 
formal  allegation  of  the  amount  of  dam- 
ages sustained,  but  concluding  with  a 
prayer  for  judgment  for  the  sum  stated,  is 
sufficient:  errors  or  defects  will  be  disre- 
garded on  appeal.  Eiser  v.  Walton,  78  Cal. 
490;  21  Pac.  362.  An  objection  to  the  com- 
plaint, for  lack  of  direct,  positive  allega- 
tions, will  be  disregarded  on  appeal,  where 
there  was  an  attempt  to  allege  what  should 
have  been  alleged  in  plain,  direct,  and  posi- 
tive language:  the  failure  so  to  do  consti- 
tutes a  defect,  which  does  not  affect  the 
substantial  rights  of  the  parties.  Maggini 
V.  Pezzoni,  76  Cal.  631;  18  Pac.  687.  Al- 
though the  prayer  of  a  bill  is  inartificially 
framed,  under  the  general  prayer  for  re- 
lief, yet  the  court  may  disregard  the  mis- 
takes, and  treat  them  as  surplusage,  and 
grant  such  relief  as  will  conform  to  the 


457 


DEFECTIVE  COMPLAINT  CURED — AMENDMENTS  ALLOWED. 


§475 


bill.  Truebody  v.  Jacobson,  2  Cal.  269. 
An  action  does  not  fail  because  the  plain- 
tiff niaiies  a  mistake  as  to  the  form  of  his 
remedy:  he  can  be  sent  out  of  court  upon 
his  facts,  only  when  he  is  not  entitled  to 
relief  either  at  law  or  in  equity.  Bedolla 
V.  Williams,  15  Cal.  App.  738;  115  Pac.  747. 
Where  only  one  cause  of  action  is  stated 
in  the  complaint,  but  one  portion  thereof 
is  introduced  with  the  words,  "For  a  sepa- 
rate and  second  cause  of  action,  plaintiff 
avers,"  etc.,  this  mistaken  designation  will 
be  disregarded  as  an  error  not  affecting 
the  substantial  rights  of  the  parties.  Mur- 
ray V.  Murray,  115  Cal.  266;  56  Am.  St. 
Eep.  97;  37  L.  E.  A.  626;  47  Pac.  37. 

Answer  curing  defective  complaint.  A 
defective  averment  in  a  complaint  is  im- 
material, where  it  is  cured  by  the  answer. 
Burns  v.  Cushing,  96  Cal.  669;  31  Pac. 
1124;  Shively  v.  Semi-Tropic  Land  etc. 
Co.,  99  Cal.  259;  33  Pac.  848;  Walkerley  v. 
Greene,  104  Cal.  208;  37  Pac.  890;  Daggett 
V.  Gray,  110  Cal.  169;  42  Pac.  568;  Vance 
V.  Anderson,  113  Cal.  532;  45  Pac.  816. 
The  failure  of  the  complaint  to  state  suffi- 
cient facts  is  cured  by  the  statement  of 
the  omitted  facts  in  the  other  pleadings: 
the  fact  that  there  is  a  demurrer  does  not 
take  it  out  of  the  rule  of  express  aider. 
Cohen  v.  Knox,  90  Cal.  266;  13  L.  R.  A. 
711;  27  Pac.  215.  The  omission  of  an  alle- 
gation in  the  complaint  may  be  so  aided 
by  an  averment  of  that  fact  in  the  answer 
as  to  uphold  the  judgment.  Daggett  v. 
Gray,  110  Cal.  169;  42  Pac.  568.  The  fail- 
ure of  the  complaint  to  set  forth  material 
facts,  so  that  no  cause  of  action  is  stated, 
is  immaterial,  where  the  answer  avers  such 
facts,  and  the  defect  is  cured.  Shively  v. 
Semi-Tropic  Land  etc.  Co.,  99  Cal.  259;  33 
Pac.  848.  The  objection  that  the  com- 
plaint does  not  aver  that  any  motion  was 
made  in  the  suit,  is  not  tenable,  where 
the  defect,  if  any,  is  cured  by  the  answer, 
which  sets  out  the  motion,  with  the  affi- 
davit on  which  it  was  made,  and  the  order 
of  the  court  denying  the  same.  Herd  v. 
Touhy,  133  Cal.  55;  65  Pac.  139.  Where 
the  petition  for  an  alternative  writ  of 
mandate  is  defective,  the  supreme  court 
will  not  sustain  a  demurrer  to  the  petition 
to  quash  the  writ,  where  matters  set  out 
in  the  answer  are  of  such  a  nature  as  to 
cure  the  defects  in  the  petition.  Walkerley 
V.  Greene,  104  Cal.  208;  37  Pac.  890.  The 
failure  to  aver  non-payment  is  not  fatal, 
nor  ground  for  a  reversal  of  the  judgment, 
where  the  pleadings  of  the  opposite  party 
show  non-payment.  Abner  Doble  Co.  v. 
Keystone  Consol.  Mining  Co.,  145  Cal.  490; 
78  Pac.  1050.  Where  the  complaint  alleges 
that  the  plaintiff  was  in  the  possession  of 
the  property,  and  entitled  thereto,  on  the 
day  before  the  commencement  of  the  ac- 
tion, whatever  defect  there  may  be  in  such 
allegation  is  cured  by  an  answer  that  de- 
nies the  plaintiff's  right  of  possession  on 
the  day  named.    Flinn  v.  Ferry,   127   Cal. 


648;  60  Pac.  434.  Where  there  is  a  failure, 
in  the  complaint,  to  aver  the  ultimate  fact 
that  the  plaintiff  was  the  owner  and  enti- 
tled to  the  possession  of  the  property  when 
the  action  was  commenced,  the  defect  is 
not  cured  by  a  mere  denial,  in  the  answer, 
that  the  plaintiff  was  the  owner  or  entitled 
to  the  possession  of  the  goods  at  the  time 
allegeil,  "or  at  any  other  time":  an  in- 
sufficient complaint  is  cured  by  the  answer, 
only  where  the  material  facts  omitted  are 
supplied  by  the  averments  of  the  answer. 
Vanalstine  v.  Whelan,  135  Cal.  232;  67 
Pac.  125. 

Allowance  or  refusal  of  amendments. 
Where  all  the  matters  averred  in  a  pro- 
posed amended  answer  might  have  been 
proved  under  the  original  answer,  the  judg- 
ment will  not  be  reversed  because  of  the 
refusal  of  the  court  to  allow  the  filing 
of  such  amended  answer  (Edgar  v.  Steven- 
son, 70  Cal.  286;  11  Pac.  704);  nor  because 
the  court  refused  to  allow  the  defendant 
to  amend  his  answer,  where  both  parties 
introduced  evidence  just  as  if  the  answer 
were  perfect  in  the  particulars  sought  to 
be  amended.  Southern  Pacific  R.  R.  Co. 
V.  Purcell,  77  Cal.  69;  18  Pac.  886.  The 
failure  to  make  an  amendment,  allowed 
formally  upon  the  record,  does  not  neces- 
sitate a  reversal  of  the  judgment:  the 
record  will  be  ordered  corrected  to  conform 
with  the  order  permitting  the  amendment. 
French  v.  McCarthy,  125  Cal.  508;  58  Pac. 
154.  An  error  committed  by  the  court  in 
refusing  to  allow  an  amendment,  is  cured 
by  receiving  the  evidence  and  making  a 
finding  upon  the  very  matter  to  which  the 
amendment  was  directed;  and,  where  no 
objection  was  made  to  the  evidence  in  sup- 
port of  the  finding  at  the  trial,  it  cannot 
be  contended  that  such  finding  was  not 
within  the  issues.  McDougald  v.  Hulet, 
132  Cal.  154;  64  Pac.  278.  Where  the  rec- 
ord fails  to  show  any  request  for  leave 
to  amend  the  complaint,  a  reversal  of 
judgment  cannot  be  had  upon  that  ground 
on  appeal.  Prince  v.  Lamb,  128  Cal.  120; 
60  Pac.  689.  Where  the  gist  of  the  action, 
as  stated  in  the  original  complaint,  is  the 
same  as  that  contained  in  the  complaint 
upon  which  the  trial  was  had,  and  the 
amended  complaint  was  filed  upon  terms 
with  which  the  plaintiff  complied,  there  is 
nothing  to  work  any  hardship  or  surprise 
upon  the  defendant,  nor  is  there  any  error 
therein.  Riverside  etc.  Irrigation  Co.  v. 
Jensen,  73  Cal.  550;  15  Pac.  131.  Where 
a  defendant,  without  leave  of  court,  filed 
an  amended  answer,  which  is  stricken  out 
at  the  trial,  on  motion,  but  is  allowed  to 
be  filed  on  request,  the  error,  if  any,  in 
striking  out  the  answer  in  the  presence  of 
the  jury,  is  cured  bv  the  request.  Risdon  v. 
Yates, 'l45  Cal.  210;  78  Pac.  641.  Where 
the  plaintiff  is  permitted  at  the  trial  to 
amend  the  statement  of  his  cause  of  action, 
and  the  amendment  is  not  made  and  filed 
until   after   the  verdict  and  the   entry   of 


§475 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


458 


judgment,  but  the  case  is  tried  with  refer- 
ence to  it,  the  defendant  is  not  prejudiced. 
Stark  V.  Wellman,  96  Cal.  400;  31  Pac. 
259.  Where  the  court  allows  an  attorney 
to  insert  an  omitted  signature  to  a  com- 
plaint, to  which  an  answer  has  been  filed, 
and  the  court  overrules  an  objection  of  the 
defendant  thereto,  and  denies  his  motion 
to  answer  or  demur  to  the  complaint  as 
signed,  but  an  amended  answer  is  in  fact 
filed  after  the  close  of  the  plaintiif's  evi- 
dence, no  substantial  rights  of  the  defend- 
ant are  affected.  Smith  v.  Dorn,  96  Cal. 
73;  30  Pac.  1024.  The  defendant  is  not 
prejudiced  by  the  court's  refusal  to  allow 
him  to  amend  his  answer,  where  he  is 
afterwards  allowed  to  file  an  amended 
answer,  after  all  the  amendments  to  the 
complaint  are  filed,  and  in  which  he  sub- 
stantially denies  all  the  material  aver- 
ments of  the  complaint  as  amended.  Frey 
v.  Vignier,  145  Cal.  251;  78  Pac.  733. 
Where,  on  appeal,  the  defendant  appears  to 
have  lost  his  case  for  want  of  evidence, 
and  not  by  reason  of  any  defect  in  his 
answer,  he  is  not  prejudiced  or  injured  by 
the  refusal  of  the  court  to  permit  him  to 
amend  his  answer  to  conform  to  the  proof. 
Green  v.  Burr,  131  Cal.  236;  63  Pac.  360. 
Eefusal  of  the  court  to  permit  the  plain- 
tiff to  strike  out  a  claim  for  damages  is 
error:  he  has  a  right  to  waive  a  recovery, 
without  regard  to  the  purpose  which  may 
influence  him.  Grass  Valley  Quartz  Min- 
ing Co.  V.  Staekhouse,  6  Cal.  413.  Where 
a  defendant  obtrudes  himself  into  an  ac- 
tion, without  opposition,  but  the  com- 
plaint is  not  amended  by  adding  his  name, 
as  it  might  be,  and  he  avails  himself  of 
all  the  rights  and  privileges  of  a  defend- 
ant, his  substantial  rights  are  not  affected 
by  the  failure  to  amend,  nor  is  the  judg- 
ment affected  by  reason  of  the  defect. 
Tj'rrell  v.  Baldwin,  67  Cal.  1;  6  Pac.  867. 
Notice  should  be  given  of  a  motion  for 
leave  to  file  an  amended  complaint;  but 
where  the  motion  should  be  granted  were 
due  notice  given,  the  granting  of  leave 
to  amend,  without  notice,  is  without  preju- 
dice. Baker  v.  Southern  California  Ry. 
Co.,  114  Cal.  501;  46  Pac.  604.  The 
amendment  of  the  complaint  to  conform 
to  the  jjroof  does  not  change  the  cause  of 
action,  nor  can  it  operate  to  the  prejudice 
of  the  defendant.  Blankenship  v.  Whaley, 
142  Cal.  566;  76  Pac.  235.  Where  the  ver- 
dict is  for  actual  damage  in  excess  of  that 
alleged  in  the  complaint,  and  the  evidence 
was  not  sufficient  to  warrant  the  excess, 
it  is  error  to  allow  an  amendment  of  the 
complaint,  after  verdict,  in  order  to  sus- 
tain the  verdict;  and  on  appeal,  while  the 
judgment  will  not  be  reversed,  the  court 
will  be  directed  to  modify  it  by  reducing 
it  to  the  extent  of  the  excess.  Clark  v. 
San  Francisco  etc.  Ry.  Co.,  142  Cal.  614; 
76  Pac.  507. 

Striking    out    pleadings.     Error    of    the 
court    in    refusing    to    strike    out    portions 


of  the  complaint,  if  harmless,  will  be  dis- 
regarded on  appeal.  Hunt  v.  Davis,  135 
Cal.  31;  66  Pac.  957.  An  error  in  strik- 
ing out  or  in  refusing  to  strike  out  the 
allegations  in  a  complaint  or  denials  in  an 
answer,  will  not  justify  a  reversal,  where 
such  rulings  are  without  prejudice.  Sloane 
V.  Southern  California  Ry.  Co.,  Ill  Cal. 
668;  32  L.  R.  A.  193;  44  Pac.  320.  There 
is  no  prejudicial  error  in  striking  out  a 
part  of  the  defendant's  answer,  where 
every  material  issue  is  before  the  court 
after  the  objectionable  part  is  stricken 
out.  Santa  Ana  v.  Brunner,  132  Cal.  234; 
64  Pac.  287.  Striking  from  the  answer  the 
denial  of  the  corporate  existence  of  the 
plaintiff  is  not  reversible  error,  where  the 
plaintiff  is  afterwards  permitted  to  put 
in  evidence  the  certificate  of  incorpora- 
tion.   People  V.  Hagar,  52  Cal.  171. 

Variance.  Immaterial  variances  are  to 
be  disregarded  on  the  trial,  or  whenever 
the  question  may  be  presented:  this  is  a 
most  beneficial  statutory  provision,  and 
should  be  liberally  construed  and  carried 
out.  Began  v.  O'Reilly,  32  Cal.  11.  The 
judgment  will  not  be  reversed  because  of 
immaterial  variance  (Houghton  v.  Trumbo, 
103  Cal.  239;  37  Pac.  152;  Bancroft  Co.  v. 
Haslett,  106  Cal.  151;  39  Pac.  602);  nor 
on  the  ground  of  variance  between  the 
pleadings  and  the  proof,  where  such  vari- 
ance has  not  misled  the  appellant  to  his 
prejudice  (Began  v.  O'Reilly,  32  Cal.  11; 
Ah  Goon  V.  Tarpey,  2  Cal.  Unrep.  483;  7 
Pac.  188);  nor  because  of  a  variance  be- 
tween the  proof  and  the  averments  of  the 
complaint,  where  the  defendant  makes  no 
objection  on  that  ground  (Marshall  v.  Fer- 
guson, 23  Cal.  65);  nor  because  of  a  tech- 
nical variance  between  the  evidence  and 
finding  of  facts  and  the  pleading,  where 
no  objection  was  made  thereto  at  the  trial 
(Dikeman  v.  Norrie,  36  Cal.  94) ;  nor 
where  there  is  a  variance  in  the  contract 
between  the  parties  as  stipulated  at  the 
trial  and  that  alleged  in  the  complaint, 
and  no  objection  is  made  on  this  ground, 
at  any  stage  of  the  proceedings  (Colfax 
etc.  Fruit  Co.  v.  Southern  Pacific  Co.,  118 
Cal.  648;  40  L.  R.  A.  78;  50  Pac.  775); 
nor,  in  an  action  for  conversion,  because 
of  a  variance  between  the  date  of  the  con- 
version alleged  in  the  complaint  and  that 
established  by  the  proof,  if  prior  to  the 
commencement  of  the  action  (Bancroft 
Co.  V.  Haslett,  106  Cal.  151;  39  Pac.  602); 
nor,  in  an  action  on  a  bond,  where  it  is 
alleged  in  the  complaint  that  it  was  exe- 
cuted bj'  certain  persons,  and  the  proof 
is,  that  it  was  executed  by  only  some  of 
such  persons  (Kurtz  v.  Forguer,  94  Cal. 
91;  29  Pac.  413);  nor,  where  the  complaint 
is  sufficient  as  against  a  general  demurrer, 
and  sustains  the  judgment,  because  of  a 
variance  between  the  proof  and  the  alle- 
gations (Carter  v.  Rhodes,  135  Cal.  46;  66 
Pac.  985;  Miller  v.  Ballerino,  135  Cal.  566; 
67  Pac.  1046;  68  Pac.  600);  nor  where  the 


459 


EXHIBITS — MISNOMER — MISJOINDER RULINGS. 


§475 


averment  in  the  complaint  is,  that  the 
contract  price  of  materials  was  what  they 
were  reasonably  worth,  and  the  notice  of 
lien  provides  that  they  were  to  be  paid  for 
at  current  marUct  prices.  Santa  Monica 
Lumber  etc.  Co.  v.  Hege,  119  Cal.  376;  51 
Pac.  555.  Where  the  proof  is  at  variance 
with  the  allegation  of  the  complaint  as 
to  the  sale  of  property  for  a  specified 
amount,  a  finding  that  the  amount  of  the 
sale  is  as  alleged  is  not  sustained  by  the 
evidence,  and  the  judgment  should  be  re- 
versed. Pettinger  v.  Fast,  87  Cal.  461;  25 
Pac.  680.  A  defense  not  pleaded  cannot 
be  considered,  though  shown  by  the  evi- 
dence: the  rule  as  to  curing  defects  by 
litigating  a  question  without  objection, 
applies  only  where  the  pleading  is  de- 
fective, and  not  where  there  is  a  total 
abseui-e  of  averment.  Wilson  v.  White,  81 
Cal.  239;  24  Pac.  114. 

Variance  between  complaint  and  ex- 
hibit. Any  variance  between  the  terms 
of  a  contract  as  alleged  in  the  complaint, 
and  those  of  a  copy  attached  thereto,  is 
only  an  ambiguity  or  uncertainty,  which 
is  removed  by  the  finding  of  the  court 
that  the  copy  as  set  forth  in  the  complaint 
is  the  contract  into  which  the  parties  en- 
tered. Cutting  Fruit  Packing  Co.  v.  Canty, 
141  Cal.  692;  75  Pac.  564. 

Misnomer.  The  mere  error  of  one  let- 
ter in  a  defendant's  christian  name,  as 
"Dellie,"  instead  of  "Dollie,"  is  immate- 
rial, where  she  is  the  person  the  plaintiff 
seeks  to  bind  by  the  action.  Thompson  v. 
Alford,  135  Cal.  52;  66  Pac.  983.  Where 
the  relief  granted  in  a  case  is  limited  to 
an  injunction,  the  fact  that  a  party,  neces- 
sary only  to  a  different  brancli  of  the  case, 
is  sued  by  a  wrong  name,  does  not  preju- 
dice the  defendant:  the  misnomer  is  im- 
material. Parrott  v.  B^ers,  40  Cal.  614. 
The  middle  initial  is  a  material  part  of  a 
name;  and  where  the  parties  sued  and 
served  appear  to  be  two  different  persons, 
from  a  variance  in  the  middle  initial,  and 
there  is  no  proof,  in  the  record,  of  the 
service  of  summons  on  the  defendant  sued, 
a  judgment  rendered  against  him  by  de- 
fault will  be  reversed  on  appeal.  Hough- 
ton V.  Tibbets,  126  Cal.  57;  58  Pac.  318. 

Misjoinder  of  parties.  A  judgment,  after 
trial  upon  the  merits,  will  not  be  reversed 
because  the  court  improperly  overruled  a 
demurrer  upon  the  ground  of  misjoinder 
of  parties,  where  no  substantial  right  of 
the  parties  was  affected  thereby.  W^oolla- 
cott  V.  Meekin,  151  Cal.  701;  91  Pac.  612. 
Where  an  action  is  brought  against  a  city 
and  the  city  treasurer,  the  city,  being 
alone  liable,  cannot  complain  of  error  as 
to  the  misjoinder.  Madarv  v.  Fresno,  20 
Cal.  App.  91;  128  Pac.  34o!^ 

Rulings  on  demurrer.  This  section  ap- 
plies to  cases  of  immaterial  errors  or  de- 
fects in  rulings  on  demurrers.  Pettit  v. 
Forsyth,   15   Cal.   App.   149;   113  Pac.   892; 


ITentig  v.  Johnson,  8  Cal.  App.  221;  96 
Pac.  390.  Where  there  is  no  substantial 
injury,  the  imi)roper  overruling  of  a  de- 
murrer to  the  complaint  for  uncertainty 
or  ambiguity  is  not  ground  for  reversal. 
Holland  v.  McDade,  125  Cal.  353;  58  Pac. 
9;  Stephenson  v.  Deuel,  125  Cal.  656;  58 
Pac.  258;  Foerst  v.  Kelso,  131  Cal.  376; 
63  Pac.  681.  A  corporation  debtor  cannot 
be  prejudiced  by  the  overruling  of  its 
demurrers,  where  the  record  shows  that 
all  of  its  interests  have  passed  to  the  pur- 
chaser at  a  receiver's  sale,  who  apjieared 
in  the  action  adversely  to  the  appellant, 
and  is  recognized  in  the  decree  as  its  suc- 
cessor in  interest.  Citizens'  Bank  of  Los 
Angeles  v.  Los  Angeles  Iron  etc.  Co.,  131 
Cal.  187;  82  Am.  St.  Rep.  341;  63  Pac.  462. 
Where  a  complaint  contains  two  counts, 
the  action  of  the  court  in  overruling  a 
demurrer  thereto  on  the  ground  of  mis- 
joinder of  causes  of  action,  if  error,  is 
without  injury,  where  one  count  is  wholly 
abandoned  at  the  trial,  and  the  verdict 
is  for  a  smaller  sum  than  that  claimed 
in  the  other  count.  Gillaspie  v.  Hagans, 
90  Cal.  90;  27  Pac.  34.  Where  two  counts 
in  a  complaint  are  evidently  intended  to 
represent  the  same  cause  of  action,  it  is 
not  prejudicial  error  to  sustain  a  demurrer 
to  the  first,  where  the  plaintiff  is  not  in- 
jured therebv.  Consolidated  Nat.  Bank  v. 
Pacific  Coast  S.  S.  Co.,  95  Cal.  1;  29  Am. 
St.  Rep.  85;  30  Pac.  96.  Where  there  is 
enough  matter  in  the  answer,  well  pleaded, 
to  constitute  a  good  defense  to  the  action, 
the  overruling  of  a  demurrer  to  the  an- 
swer does  not  affect  any  substantial  right 
of  the  plaintiff,  and  the  judgment  will  be 
affirmed.  Younglove  v.  Nixon,  61  Cal.  301. 
The  overruling  of  a  demurrer,  before  the 
overruling  of  an  improper  motion  for  a 
change  of  venue,  is  a  harmless  irregu- 
larity, in  no  way  affecting  the  substantial 
rights  of  the  parties,  which  will  be  disre- 
garded on  appeal.  Pennie  v.  Vislier,  94 
Cal.  323;  29  Pac.  711. 

Rulings  on  evidence.  The  erroneous  ex- 
clusion or  rejection  of  evidence,  not  affect- 
ing the  substantial  rights  of  the  appellant, 
is  not  ground  for  a  reversal  of  the  judg- 
ment (Alexander  v.  Central  Lumber  etc. 
Co.,  104  Cal.  532;  38  Pac.  410;  Hoult  v. 
Ramsbottom,  127  Cal.  171;  59  Pac.  587; 
Glenmore  Distilling  Co.  v.  Craig,  128  Cal. 
264;  60  Pac.  858;  St.  Vincent's  Institution 
V.  Davis,  129  Cal.  17;  61  Pac.  476;  Hud- 
son V.  Hudson,  129  Cal.  141;  61  Pac.  773; 
Bosqui  V.  Sutro  R.  R.  Co.,  131  Ca),  390; 
63  Pac.  682;  Carpv  v.  Dowdell,  131  Cal. 
499;  63  Pac.  780;  People  v.  Harlan,  133 
Cal.  16;  65  Pac.  9;  Hunter  v.  Milam,  133 
Cal.  601;  65  Pac.  1079;  Harp  v.  Harp, 
136  Cal.  421;  69  Pac.  28;  McMulliu  v. 
McMullin,  140  Cal.  112;  73  Pac.  808); 
neither. is  the  erroneous  admission  of  evi- 
dence, where  the  substantial  rights  of 
the  appellant  are  not  affected   (Peoide   v. 


§475 


MISTAKES   IN   PLEADINGS   AND   AMENDMENTS. 


460 


Daniels,  105  Cal.  262;  38  Pac.  720;  People 
V.  Clark,  106  Cal.  32;  39  Pac.  53;  Hewes 
V.  Germain  Fruit  Co.,  106  Cal.  441;  39 
Pac.  853;  People  v.  Maroney,  109  Cal.  277; 
41  Pac.  1097;  Simmons  v.  McCarthy,  128 
Cal.  455;  60  Pac.  1037;  Coonan  v.  Lowen- 
thal,  129  Cal.  197;  61  Pac.  940;  Hunter  v. 
Milam,  133  Cal.  601;  65  Pac.  1079;  Rowe 
V.  Hibernia  Sav.  &  L.  Soc,  134  Cal.  403; 
66  Pac.  569;  Bacon  v.  Kearney  Vineyard 
Syndicate,  1  Cal.  App.  275;  82  Pac.  84; 
Bird  V.  Utica  Gold  Mining  Co.,  2  Cal. 
App.  674;  84  Pac.  256;  Stone  v.  San  Fran- 
cisco Brick  Co.,  13  Cal.  App.  203;  109  Pac. 
103;  Higgins  v.  Los  Angeles  Ry.  Co.,  5 
Cal.  App.  748;  91  Pac.  344);  nor  are  erro- 
neous or  unimportant  rulings  upon  the 
evidence,  which  do  not  materially  injure 
the  appellant.  Duffy  v.  Duffy,  104  Cal. 
602;  38  Pac.  443;  People  v.  Worthington, 
115  Cal.  242;  46  Pac.  1061;  People  v. 
Barthleman,  120  Cal.  7;  52  Pac.  112;  Hud- 
son V.  Hudson,  129  Cal.  141;  61  Pac.  773; 
People  V.  Wynn,  133  Cal.  72;  65  Pac.  126. 
The  admission  of  immaterial  evidence  is 
harmless,  and  will  be  disregarded  on  ap- 
peal, where  it  did  not  and  could  not  affect 
the  question  at  issue,  nor  prejudicially 
affect  the  appellant.  Redfield  v.  Oakland 
Consol.  etc.  Ry.  Co.,  112  Cal.  220;  43  Pac. 
1117;  People  v.  Helm,  152  Cal.  532;  93 
Pac.  99.  An  error  in  the  admission  of 
immaterial  evidence  is  cured  by  the  sub- 
sequent amendment  of  the  complaint,  be- 
fore the  close  of  the  trial,  making  the 
evidence  material.  Curtiss  v.  ^Etna  Life 
Ins.  Co.,  90  Cal.  245;  25  Am.  St.  Rep.  114; 
27  Pac.  211.  There  is  no  prejudicial  error 
in  sustaining  an  objection  to  questions 
asked  of  a  witness,  where  he  is  after- 
wards permitted  to  and  does  fully  answer 
them.  Consolidated  Nat.  Bank  v.  Pacific 
Coast  S.  S.  Co.,  95  Cal.  1;  29  Am.  St.  Rep. 
85;  30  Pac.  96.  Where  a  special  contract 
for  the  performance  of  work  was  proved, 
the  judgment  will  not  be  reversed  because 
of  the  admission  of  testimony  of  the  value 
of  the  plaintiff's  services,  the  action  being 
brought  upon  quantum  meruit.  De  Boom 
v.  Priestly,  1  Cal.  206. 

Failure  to  rule  on  objection.  Where  no 
possible  injury  could  have  resulted  to  the 
appellant  by  reason  of  the  court's  failure 
to  rule  upon  a  demurrer,  the  judgment 
should  not  be  reversed.  Ferrier  v.  Ferrier, 
64  Cal.  23;  27  Pac.  960.  The  failure  of 
the  court  to  rule  upon  objections  made  to 
evidence  offered  in  support  of  the  defense 
is  immaterial  error,  where  the  defense  is 
not  so  pleaded  as  to  be  available.  Cali- 
fornia Raisin  Growers'  Ass'n  v.  Abbott, 
160  Cal.  601;  117  Pac.  767. 

Verdict  curing  error.  The  general  rule 
as  to  the  effect  of  a  verdict  upon  defects 
in  pleading  is,  that,  wherever  facts  are  not 
expressly  stated,  which  are  so  essential  to 
a  recovery  that,  without  proof  of  them  on 
the    trial,    a    verdict    could    not    have    been 


rendered  under  the  direction  of  the  court, 
there  the  want  of  the  express  statement  is 
cured  by  verdict,  provided  the  complaint 
contains  terms  sufficiently  general  to  com- 
prehend the  facts  in  fair  and  reasonable 
intendment.  Garner  v.  Marshall,  9  Cal. 
268.  The  expression,  "cured  by  verdict," 
signifies  that  the  court  will,  after  verdict, 
presume  or  intend  that  the  particular  thing 
which  appears  to  be  defectively  or  imper- 
fectly stated  or  omitted  in  the  pleadings 
was  duly  proved  at  the  trial.  Treanor  v. 
Houghton,  103  Cal.  53;  36  Pac.  1081.  De- 
fective allegations  in  the  complaint  are 
cured  by  a  verdict,  and  all  intendments 
will  be  made  in  support  of  the  judgment 
thereon.  Cutting  Fruit  Packing  Co.  v. 
Canty,  141  Cal.  692;  75  Pac.  564.  Where 
the  complaint  contains  the  substantial  aver- 
ments of  a  cause  of  action  though  defective 
in  form  and  certainty,  the  defect  is  cured 
by  a  verdict  or  default  (People  v.  Rains,  23 
Cal.  127);  but  where  there  is  an  entire  ab- 
sence of  a  material  allegation,  the  rule  that 
a  defective  pleading  may  be  corrected  by 
verdict  has  no  application.  Richards  v. 
Travelers  Ins.  Co.,  80  Cal.  505;  22  Pac.  939. 
Where  a  cause  was  tried  without  any  ob- 
jection to  the  sufficiency  of  the  complaint 
to  present  the  issue,  it  must  be  held,  after 
verdict,  that  the  issue  was  sufficiently  pre- 
sented. Cortelyou  v.  Jones,  132  Cal.  131; 
64  Pac.  119. 

Judgment  curing  findings.  Where  the 
verdict  is  manifestly  erroneous,  the  judg- 
ment, modified  by  the  court,  with  the  as- 
sent of  the  plaintiff,  is  without  prejudice 
to  the  defendant,  and  will  be  affirmed.  Pet- 
tit  v.  Forsyth,  15  Cal.  App.  149;  113  Pac. 
892.  An  erroneous  finding,  if  disregarded 
by  the  judgment,  is  without  prejudice. 
Pugh  v.  Moxley,  164  Cal.  374;  128  Pac. 
1037.  Where  a  cause  is  properly  decided 
upon  the  issues  raised  by  special  defenses, 
and  the  decision  does  not  necessarily  rest 
upon  the  allegations  of  the  complaint,  the 
latter  become  immaterial;  whether  the  find- 
ing, as  to  them,  was  or  was  not  contrary 
to  the  evidence  is  of  no  consequence.  Rauer 
v.  Fay,  128  Cal.  523;  61  Pac.  90.  A  de- 
termination by  the  court  as  to  whether  its 
findings  as  signed  and  filed  have  been  sur- 
reptitiously altered  will  rarely  be  disturbed 
on  appeal.   Morrison  v.  McCue,  45  Cal.  118. 

Conclusions  of  law.  The  words,  "Let 
judgment  and  decree  be  entered  accord- 
ingly," added  to  the  findings  of  fact,  must 
be  held,  on  appeal,  to  be  a  sufficient  state- 
ment of  the  conclusions  of  law,  where  it  is 
evident  that  any  more  specific  conclusions 
of  law  must  have  been  in  favor  of  the  party 
for  whom  judgment  was  ordered:  the  ab- 
sence of  more  specific  conclusions  is  not  an 
error  or  defect  aft'ecting  any  substantial 
right  for  which  the  judgment  should  be  re- 
versed. Rea  V.  Haffenden,  116  Cal.  596;  48 
Pac.  716. 

Clerical  errors.  A  clerical  mistake  in  the 
finding  of  a  probative  fact  is  immaterial, 


461 


FINDINGS,  OMITTED,  CONFLICTIN( 


-DESCRIPTION — WAIVER. 


5  475 


where  other  facts  support  the  judgment. 
Welsh  V.  Bardshar,  ]37  Cal.  154;  G9  Pac. 
977.  The  action  of  the  clerk  in  entering 
judgment  for  an  amount  in  excess  of  that 
specified  in  the  summons,  is  not  ground  for 
reversing  the  judgment,  but  the  superior 
court  will  be  directed  to  order  its  clerk  to 
modify  its  judgment  properly.  Alexander 
V.  Mcbow,  108  Cal.  25;  41  Pac.  24.  A  judg- 
ment against  a  defendant,  otherwise  prop- 
erly rendered,  will  not  be  reversed,  merely 
because  the  amount  of  the  costs  of  one 
plaintiif,  instead  of  being  entered  in  his 
favor,  is  erroneously  included  in  the  judg- 
ment in  favor  of  the  other.  George  v.  Silva, 
68  Cal.  272;  9  Pac.  257.  Where  the  court 
orders  the  true  name  of  a  defendant,  sued 
and  served  under  a  fictitious  name,  to  be 
inserted  in  the  complaint,  in  place  of  the 
fictitious  name,  the  order  is  a  sufficient 
amendment,  and  a  finding  that  such  amend- 
ment was  made  is  correct,  though  it  was 
not  in  fact  made;  the  error,  if  any,  being 
merely  clerical,  may  be  corrected  by  the 
court  at  any  time,  and  will  be  disregarded 
on  appeal  as  immaterial.  Hoffman  v.  Kee- 
ton,  132  Cal.  195;  64  Pac.  264.  A  decree  of 
foreclosure,  erroneous  because  of  the  entry 
of  costs  by  the  clerk  before  taxation,  is 
amendable,  and  the  subsequent  action  of 
the  court  in  taxing  costs  is  an  amendment 
curing  the  error.  Janes  v.  Bullard,  107 
Cal.  130;  40  Pac.  108. 

Omitted  findings.  The  judgment  will 
not  be  reversed  because  of  the  want  of  a 
finding  on  a  particular  issue,  which  is  not 
prejuclicial  to  the  appellant  (McCourtney 
v.  Fortune,  57  Cal.  617;  Winslow  v.  Gohran- 
sen,  88  Cal.  450;  26  Pac.  504);  nor  because 
of  the  failure  to  find  on  an  affirmative  de- 
fense (Mushet  V.  Fox,  6  Cal.  App.  77;  91 
Pac.  534) ;  nor  because  of  the  failure  to  find 
on  issues,  where  finding  thereon  could  not 
have  changed  the  judgment  (Fogg  v.  Perris 
Irr.  District,  154  Cal.  209;  97  Pac.  316),  or 
where  the  finding  thereon  would  have  been 
adverse  to  the  appellant.  Winslow  v.  Goh- 
ransen,  88  Cal.  450;  26  Pac.  504.  After 
judgment  has  been  entered  upon  the  find- 
ings, the  court  cannot  cause  to  be  filed  an 
omitted  finding;  and  the  judgment  should 
not  be  reversed  on  that  ground,  where  a 
finding  upon  that  issue  is  but  a  conclusion 
of  law  from  the  other  facts  found.  Eichter 
v.  Henningsan,  110  Cal.  530;  42  Pac.  1077. 

Conflicting  findings.  The  court  should 
not  strain  the  language  of  the  finding  to 
make  out  a  case  of  conflict:  the  finding 
should  be  reconciled,  if  it  can  be  reason- 
ably done.  Alhambra  Addition  Water  Co. 
V.  Richardson,  72  Cal.  598,  606;  14  Pac.  379; 
Heaton-Hobson  etc.  Law  Offices  v.  Arper, 
J45  Cal.  282;  78  Pac.  721.  A  finding,  by 
the  court,  of  evidence  of  title,  rather  than 
of  the  ultimate  fact  of  title,  in  an  action 
for  the  wrongful  seizure  of  property,  is  an 
error  or  defect  not  affecting  the  substan- 
tial rights  of  the  parties,  and  should  be  dis- 
regarded  on   appeal,   where   the   court   had 


found  that  the  plaintiff  was  the  owner  and 
entitled  to  the  possession  of  the  property 
at  the  time  of  the  commencement  of  the  ac- 
tion. Averett  v.  Sobrunes,  79  Cal.  207;  21 
Pac.  739. 

Errors  in  description.  Errors  in  descrip- 
tion, which  could  not  and  which  do  not  mis- 
lead the  opposite  party,  will  be  disregarded 
on  appeal.  Reclamation  District  v.  Ilamil- 
ton,  112  Cal.  603;  44  Pac.  1074.  The  judg- 
ment will  not  be  reversed  because  of 
uncertainty  of  description,  which  might 
prevent  the  judgment  from  being  executed, 
unless  the  defendant  may  be  prejudiced  by 
the  defective  description.  Asbill  v.  Stan- 
dley,  3  Cal.  Unrep.  665;  31  Pac.  738.  Where 
the  judgment  refers  to  the  finding,  and  the 
finding  refers  to  the  complaint,  for  a  de- 
scription, the  reference  is  inexcusably  cir- 
cuitous, but  not  ambiguous,  wlicre  there  is 
but  one  complaint:  the  judgment  may  be 
modified  so  as  to  make  the  description  cer- 
tain.   Kelly  V.  McKibben,  54  Cal.  192. 

Waiver  of  defects,  errors,  and  objections. 
An  error  in  overruling  a  demurrer  to  a 
separate  defense  in  the  answer,  is  without 
prejudice  to  the  plaintiff,  and  is  waived 
by  the  defendant,  where  he  subsequently 
abandons  the  defense.  Burroughs  v.  De 
Couts,  70  Cal.  361;  11  Pac.  734.  Where 
the  plaintiff  could  not  file^a  sufficient  bill, 
and  did  not  ask  leave  to  amend,  error  will 
not  be  presumed.  Robertson  v.  Burrell,  110 
Cal.  568;  42  Pac.  1086.  Where  a  party 
withholds  an  objection  founded  upon  a  de- 
fect, so  as  to  induce  his  opponent  to  rely 
on  his  pleading  as  sufficient  until  too  late 
to  correct  it,  there  is  a  fraud  upon  justice, 
preventing  a  fair  trial,  which  will  not  be 
tolerated.  Greiss  v.  State  Investment  etc. 
Co.,  98  Cal.  241;  33  Pac.  195;  Abner  Doble 
Co.  V.  Keystone  Consol.  Min.  Co.,  145  Cal. 
490;  78  Pac.  1050.  The  filing  of  an  amended 
complaint  supersedes  any  other  complaint, 
and  is  a  waiver  of  any  error  of  the  court 
in  rulings  made  in  any  previous  complaint. 
Brittan  v.  Oakland  Bank  of  Savings,  112 
Cal.  1;  44  Pac.  339;  Collins  v.  Scott,  100 
Cal.  446;  34  Pac.  1085;  Ganeeart  v.  Henry, 
98  Cal.  281;  33  Pac.  92.  By  answering  an 
amended  complaint,  the  defendant  waives 
the  objection  that  it  alleges  a  new  cause  of 
action  arising  after  the  institution  of  the 
suit.  Witkowski  v.  Hern,  82  Cal.  604;  23 
Pac.  132.  All  questions  in  relation  to  an 
amended  answer  are  waived  by  the  filing 
of  an  amended  answer,  upon  which  the  de- 
fendant goes  to  trial.  Kentfield  v.  Hayes, 
57  Cal.  409.  W^here  separate  defenses  are 
set  up  in  the  answer,  and  a  demurrer  is 
sustained  to  one  or  more  of  them,  an 
amended  answer,  subsequently  filed,  oper- 
ates as  a  waiver  of  error  as  to  such  de- 
fenses as  are  pleaded  anew,  but  not  as  to 
defenses  to  which  the  demurrer  was  sus- 
tained, and  which  are  not  again  pleaded. 
Hagely  v.  Hagely,  68  Cal.  348;  9  Pac.  305. 
An  objection  to  a  pleading  is  waived,  if 
not  taken  at  or  V -rore  the  trial:  it  cannot 


§476 


MISTAKES    IN    PLEADINGS   AND    AMENDMENTS. 


462 


be  urged  for  the  first  time  on  appeal.  Bax- 
ter V.  Hart,  104  Cal.  344;  37  Pac.  941. 
"Where  there  is  no  objection  to  the  plead- 
ings, or  to  the  sufficiency  of  the  evidence  to 
support  the  findings,  all  errors  and  omis- 
sions are  cured  by  the  verdict,  and  waived, 
and  cannot  be  urged  for  the  first  time  on 
appeaL    Treanor  v.  Houghton,  103  Cal.  53; 

36  Pac.  1081.  Where  there  was  no  special 
demurrer  to  the  complaint,  any  grounds 
thereof  must  be  deemed  waived.  Cutttiug 
Fruit  Packing  Co.  v.  Canty,  141  Cal.  692; 
75  Pac.  564.  Objections  are  waived,  where 
the  demurrer  is  general,  and  no  special 
grounds  are  specified  therein.  Daggett  v. 
Gray,  110  Cal.  169;  42  Pac.  568.  Where  a 
party  was  in  court  when  a  motion  was 
made,  he  cannot  object  that  he  had  no  no- 
tice of  the  proceeding:  his  presence  consti- 
tuted a  waiver  of  notice.  Herman  v. 
Santee,  103  Cal.  519;  42  Am.  St.  Rep.  145; 

37  Pac.  509.  Where  no  exception  was 
taken  to  the  order  of  the  court  below,  in 
overruling  a  motion  to  set  aside  the  judg- 
ment and  quash  the  execution,  the  question 
cannot  be  reviewed  on  appeal.  Smith  v. 
Curtis,  7  Cal.  584.  Where,  at  the  close  of 
the  testimony  in  a  criminal  trial,  one  judge 
took  the  place  of  another,  and  heard  the 
argument  and  received  the  verdict,  and  the 
judge  who  first  gat  in  the  case  afterwards 
resumed  his  seat,  and  passed,  without  ob- 
jection, on  the  motion  for  a  new  trial,  the 
defendant  waived  any  further  control  of 
the  proceedings  and  the  passing  of  sen- 
tence. People  V.  Henderson,  28  Cal.  465. 
Where  judgment  is  entered  on  a  verdict, 
■without  any  special  findings  of  fact,  there 
is  a  waiver  of  such  findings,  and  the  irregu- 
larity must  be  disregarded,  where  it  does 
not  affect  the  substantial  rights  of  the  par- 
ties. King  v.  Ponton,  82  Cal.  420;  22  Pac. 
1087.  Where  the  parties  to  an  action 
agree  upon  the  facts,  subject  to  all  legal 
objections,  and  the  agreed  statement  of 
facts  is  admitted  in  evidence  without  ob- 
jection, neither  party,  upon  appeal,  can 
raise  the  point  that  some  of  the  admitted 
facts  were  not  admissible  in  evidence  under 
the  pleadings.  Hess  v.  Bolinger,  48  Cal. 
349.  Where  a  cause  is  tried  as  if  the  com- 
plaint were  in  all  respects  sufficient,  and  no 
error  or  defect  in  the  record  is  found  which 
affects  the  substantial  rights  of  the  parties, 

§  476.  Time  to  amend  or  answer,  running  of.  When  a  demurrer  to  any- 
pleading  is  sustained  or  overruled,  and  time  to  amend  or  answer  is  given, 
the  time  so  given  runs  from  the  service  of  notice  of  the  decision  or  order. 

1083.     Where  a  demurrer  is  overruled,  and 


the  judgment  will  not  be  reversed.  People 
V.  Reis,  76  Cal.  269;  18  Pac.  309.  Where 
the  plaintiff  amends  his  complaint,  making 
two  counts  instead  of  one,  he  cannot  com- 
plain of  error  of  the  court  in  sustaining  the 
demurrer  to  the  original  complaint.  Gale  v. 
Tuolumne  Water  Co.,  14  Cal.  25.  Where  a 
public  corporation  and  its  board  of  direc- 
tors are  made  defendants,  and  disclaim  all 
personal  interest  in  the  controversy,  and 
judgment  is  rendered  against  the  corpora- 
tion, but  all  the  defendants  join  in  a 
motion  for  a  new  trial,  the  plaintiff  is  not 
injured  by  the  joinder  of  such  defendants 
in  the  motion.  Boehmer  v.  Big  Rock  Irri- 
gation Dist.,  117  Cal.  19;  48  Pac.  908. 
Where  a  trial  is  had  without  objection  that 
a  stipulated  prayer  was  not  formally  added 
to  the  complaint,  the  defendant  suffers  no 
substantial  injury.  Murphy  v.  Stelling,  8 
Cal.  App.  702;  97  Pac.  672.  Where  the 
denial  of  an  allegation  of  the  complaint 
was  treated  as  sufficient  to  raise  an  issue, 
the  question  of  its  sufficiency  will  be  dis- 
regarded on  appeal,  after  judgment  against 
the  plaintiff.  Rowland  v.  Madden,  72  Cal. 
17;  12  Pac.  226,  870.  The  judgment  will 
not  be  reversed  upon  an  objection,  in  the 
nature  of  a  demurrer  to  the  answer,  on  the 
ground  that  the  facts  stated  are  insufficient 
to  constitute  a  defense,  when  made  on  ap- 
peal for  the  first  time,  and  the  point  was 
fully  litigated  on  the  trial.  Lee  v.  Figg,  37 
Cal.  328;  99  Am.  Dec.  271.  Where  the  re- 
spondent excepted  to  the  sufficiency  of  the 
sureties  within  five  days  after  the  filing  of 
an  undertaking  on  appeal,  he  is  not  injured 
by  the  failure  of  the  appellant  to  serve  no- 
tice of  appeal  on  the  day  the  undertaking 
was  filed.  Mokelumne  Hill  etc.  Mining  Co. 
v.  Woodbury,  10  Cal.  185.  Where  a  ruling 
striking  out  some  of  the  denials  of  an  an- 
swer has  been  obviated  by  an  amended 
pleading,  and  the  defendant  has  been  able 
to  present  to  the  court  his  entire  cause  of 
action  or  defense,  the  ruling  is  without 
prejudice,  and  will  be  disregarded  on  ap- 
peal. Sloane  v.  Southern  California  Ry. 
Co.,  Ill  Cal.  668;  32  L.  R.  A.  193;  44  Pac. 
320. 

CODE  COIUMISSIONEIIS'  NOTE.  Besran  v. 
O'Reilly,  32  Cal.  12;  Peters  v.  Foss,  20  Cal.  586; 
Stout  V.  "  Coffin,  28  Cal.  65;  Zei^ler  v.  Wells 
Fargo  &  Co.,  28  Cal.  263;  Mendocino  County  v. 
Morris,  32  Cal.  145;  Plate  v.  Vega,  31  Cal.  3S3. 


Time  to  answer.    Ante,  §§  432.  472,  473. 

Notice,   service   of.     Post,  §§  1010  et  seq. 

Legislation  8  476.  1.  Added  by  Code  Amdts. 
1873-74,  p.  304. 

2.  Amendment  by  Stats.  1901,  p.  135;  un- 
constitutional.   See  note  ante,  §  5. 

Time  to  amend  or  answer  after  demurrer. 

This  section  relates  only  to  the  right  to 
amend  or  answer,  and  does  not  affect  the 
right  to  move  for  a  dismissal.  San  .Jose 
Land  etc.  Co.  v.  Allen,  129  Cal.  247,-  61  Pac, 


time  is  given  to  answer,  if  the  notice  re- 
quired by  this  section  is  not  given  or 
waived,  the  time  to  answer  does  not  run, 
and  judgment  by  default  cannot  be  en- 
tered; but,  if  notice  of  a  decision  on  de- 
murrer is  given  or  waived,  the  appellant 
should  make  that  fact  appear  in  the  record. 
Chamberlin  v.  Del  Norte  Countj*-,  77  Cal. 
150;    19   Pae.   27J.     Written   notice   of  the 


463  DEMURRER — TIME  TO  ANSWER  OR  AMEND  AFTER.  §  476 

overruling  of  a  demurrer  is  waived  by  Cal.  App.  432;  83  Pac.  1077.  Where  the 
the  presence  in  court  of  the  attorney  for  the  judgment  recites  that  the  time  for  answer- 
demurring  party,  at  the  time  of  the  ruling:  ing  had  expired,  and  the  record  is  silent  as 
the  time  to  amend  or  answer  runs,  in  such  to  the  time  allowed  therefor,  as  well  as  to 
case,  from  the  time  the  ruling  is  made.  the  giving  of  notice  of  the  overruling  of 
"Wall  V.  Heald,  95  Cal.  364;  30  Pac.  551.  the  demurrer,  it  will  be  presumed  that^the 
The  time  of  the  default  runs  from  the  date  court  had  satisfactory  evidence  that  the 
of  the  filing  of  the  pleading,  and  not  from  time  for  answering  had  expired.  Catanich 
the  date  of  service.    Billings  v.  Palmer,  3  v.  Hayes,  52  Cal.  338. 


§§478,479 


ARREST  AND   BAIL. 


464 


TITLE  VII. 
PROVISIONAL  REMEDIES  IN  CIVIL  ACTIONS. 


Chapter  I.     Arrest  and  Bail.     §§478-504. 

II.     Claim  and  Delivery  of  Personal  Property. 

III.  Injunction.     §§  525-533. 

IV.  '  Attachment.     §§  537-560. 
V.     Eeeeivers.     §§  564-570. 

VI.     Deposit  in  Court.     §§  572-574. 


§§  509-521. 


CHAPTER  L 
AREEST  AND  BAIL. 


§  478.  No  person  to  be  arrested  except  as  pre- 
scribed by  this  code. 

§  479.     Cases  in  which  defendant  may  be  arrested. 

I  480.     Order  for  arrest,  by  whom  made. 

§  481.     Affidavit  to  obtain  order,  what  to  contain. 

§  482.     Security  by  plaintiff  before  order  of  arrest. 

§  483.     Order,  when  made,  and  its  form. 

§  484.  Affidavit  and  order  to  be  delivered  to  the 
sheriff,  and  copy  to  defendant. 

§  485.    Arrest,  how  made. 

§  486.  Defendant  tto  be  discharged  on  bail  or 
deposit. 

§  487.    Bail,  how  given. 

§  488.     Surrender  of  defendant. 

I  489.     Same. 

§  490.     Bail,  how  proceeded  against. 

§  491.     Bail,  how  exonerated. 


§  492.  Delivery  of  undertaking  to  plaintiff,  and 
its  acceptance  or  rejection  by  him. 

§  493.  Notice  of  justification.  New  undertaking, 
if  other  bail. 

§  494.     Qualifications  of  bail. 

§  49.5.     Justification  of  bail. 

§  496.     Allowance  of  bail. 

§  497.     Deposit  of  money  with  sheriff. 

§  498.     Payment  of  money  into  court  by  sheriff. 

§  499.     Substituting  bail  for  deposit. 

§  500.  Money  deposited,  how  applied  or  dis- 
posed of. 

§  501.  Sheriff,  when  liable  as  bail,  and  his  dis- 
charge from  liability. 

§  502.     Proceedings  on  judgment  against  sheriff. 

§  503.  Motion  to  vacate  order  of  arrest  or  re- 
duce bail.      Affidavits  on  motion. 

§  504.     When  the  order  vacated  or  bail  reduced. 


§  478.     No  person  to  be  arrested  except  as  prescribed  by  this  code.     No 

person  can  be  arrested  in  a  civil  action,  except  as  prescribed  in  this  code. 

Who  exempt  from  arrest.  Attendance 
upon  any  court  as  a  witness,  juror,  or 
party,  only  exempts  the  person  so  in  at- 
tendance from  arrest  in  a  civil  action,  but 
not  from  obeying  an  ordinary  process  of 
the  court.    Page  v.  Randall,  6  "Cal.  32. 


CODE  COMMISSIONERS'  NOTE.  Benninghoff 
V.  Oswell,  37  How.  Pr.  235;  Williams  v.  Bacon, 
10  Wend.    (N.  Y.)    636. 


Legislation  S  478.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  72  (New  York  Code, 
§  179),  which  had  (1)  "shall"  for  "can,"  (2) 
"by"   for  "in,"   and   (3)    "act"   for  "code." 

Civil  action,  -vfliat  is.  A  proceeding  for 
the  settlement  of  the  estate  of  a  deceased 
person  is  not  a  civil  action,  within  the  pro- 
vision of  the  constitution  prohibiting  im- 
prisonment for  debt.  Ex  parte  Smith,  53 
Cal.  204;  Carpenter  v.  Superior  Court,  75 
Cal.  596;  19  Pac.  174. 

§  479.  Cases  in  which  defendant  may  be  arrested.  The  defendant  may 
be  arrested,  as  hereinafter  prescribed,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause  of  action 
arising  upon  contract,  express  or  implied,  when  the  defendant  is  about  to 
depart  from  the  state  with  intent  to  defraud  his  creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property  embezzled^ 
or  fraudulently  misapplied,  or  converted  to  his  own  use,  by  a  public  officer, 
or  an  officer  of  a  corporation,  or  an  attorney,  factor,  broker,  agent,  or  clerk, 
in  the  course  of  his  employment  as  such,  or  by  any  other  person  in  a  fidu- 
ciary capacity ;  or  for  misconduct  or  neglect  in  office,  or  in  a  professional 
employment,  or  for  a  willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property  unjustly 
detained,  when  the  property  or  any  part  thereof,  has  been  concealed,  re- 
moved, or  disposed  of,  to  prevent  its  being  found  or  taken  by  the  sheriff. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting  the  debt 
or  incurring  the  obligation  for  which  the  action  is  brought ;  or  in  concealing 


465 


AGEN  CY — FRAUDULENT   TRANSFER — PLEADINGS — VERDICT. 


§479 


or  disposing  of  the  property  for  the  taking,  detention,  or  conversion  of 
which  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property,  or  is 
about  to  do  so,  with  intent  to  defraud  his  creditors. 

^^''"L      <.  o  .    »R   loo-,    10QA        ^^^-     Where    a    debt    is   fraudulentlv    con- 

1.  Of    witness.       See    post,    §§    1993,   1994,        iraotaA   K,r  nr,/.  r^^„,u^     „*  .    '       i  • 
2067-2070.                                                                     iractea  Dy  one  member  of  a  copartnership, 

2.  Of    person    suspected    of    embezzlement       the  others  being  ignorant  of  tlie  fraud,  the 
from    or   concealment   of  papers   of   an   estate. 
See   post,    §  1460. 

3.  Of   debtor,    when   ordered  in    supplemen- 
tary proceedings.     See  post,   §  715. 

4.  Of     witness     disobeying     subpoena.      See 
5  1993. 

5.  Of   executor,   to    compel   attendance.     See 
post,  §  1440. 

6.  For  disobedience  of  order  to  produce  will. 
See   post,    §  1302. 

7.  When  ordered  in  action  for  forcible  entry 
and  detainer.    See  post,  §  1168. 
Executor,  attachment  of,  for  failure  to  account. 

See  post,  §§  1627,    1628. 

Legislation  §  479.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  73  (New  York  Code, 
§  179),  which  (1)  had,  in  the  introductory  para- 
graph, after  the  word  "cases,"  the  words  "aris- 
ing after  the  passage  of  this  act,"  (2)  in  subd.  1, 
after  the  words  "his  creditors,"  had  the  clause, 
"or  when  the  action  is  for  willful  injury  to  per- 
son, to  character,  or  to  property,  knowing  the 
property  to  belong  to  another,"  and  (3)  in  subd. 
8,  instead  of  the  words  "to  prevent  its  being," 
had  "so  that  it  cannot  be."  When  enacted  in 
1872,  §  479  •  contained  only  two  additions  to  the 
Practice  Act;  (1)  in  subd.  2,  the  word  "fraudu- 
lent" was  added  before  "misconduct,"  and  (2)  in 
subd.  3,  the  word  "fraudulently"  was  added  be- 
fore "concealed." 

2.   Amended  by  Code  Amdts.  1873-74,  p.  304. 

Scope  of  section.  There  are  many  cases 
within  the  provisions  of  this  section,  in 
which  the  acts  justifying  the  arrest  may  be 
committed  after  the  action  is  commenced. 
Ex  parte  Howitz,  2  Cal.  App.  752;  84  Pac. 
229.  This  code  prescribes  the  writs  by 
which,  and  the  proceedings  upon  which,  a 
defendant  may  be  arrested  in  a  civil  ac- 
tion: the  writ  of  ne  exeat  not  being  among 
the  number,  the  superior  court  has  no  power 
to  issue  it.    Ex  parte  Hariier,  49  Cal.  465. 

Agency    of   defendant.     Where    the    de- 
fendant received  money  as  agent,  he  can- 
not be  arrested  without  a  showing  of  some       fraud  and  deceit  in  contracting^adebt,  "it 
fraudulent   conduct   on   his   part,   or   a    de-       '  ... 

mand  on  him  by  the  principal,  and  a  re- 
fusal to  pay.  In  re  Holdforth,  1  Cal.  438. 
Averments  that  the  defendant  received  per- 
sonal property  in  a  fiduciary  capacity,  as 
the  agent  of  the  plaintiff,  and  that  he  was 
guilty  of  fraud  in  receiving  and  convert- 
ing it  to  his  own  use,  are  not  sufficient  to 
warrant  a  judgment  for  the  imprisonment 
of  the  defendant  on  the  ground  of  fraud. 
Pavne  v.  Elliot,  54  Cal.  339;  35  Am.  Eep. 
80.- 

Fraudulent  transfer  of  property.  The 
transfer  of  property,  with  intent  to  hinder, 
delay,  and  defraud  creditors,  does  not  make 
the  party  receiving  such  property  liable  to 
arrest  on  either  mesne  or  final  process: 
such  a  case  does  not  fall  within  the  provis- 
ions of  the  code  or  of  the  constitution, 
where  an  arrest  may  be  had  in  a  civil  ac- 
tion. Cooper  V.  Nolan,  138  Cal.  248;  71  Pac. 
1  Fair. — 30 


liability  to  an  action  for  tlie  fraud  is  iim- 
itcd  to  the  partner  committing  the  same, 
unless  the  others  assent  thereto,  or  ratify 
it  by  adopting  the  fraudulent  act,  or  re- 
taining its  fruits  with  knowledge  thereof. 
Stewart  v.  Levy,  36  Cal.  159. 

Pleadings.  Matters  pleaded  to  show 
fraud,  which  show  no  connection  with  the 
conversion  complained  of,  and  no  relation 
between  the  plaintiff  and  the  defendant 
setting  forth  fraud  on  the  plaintiff's  rights, 
are  too  general  and  indefinite,  and  are  in- 
sufficient. Kullmann  v.  Greenebaum,  84 
Cal.  98;  24  Pac.  49.  Alternative  or  dis- 
junctive pleadings  are  not  permitted:  to 
charge  a  defendant  with  receiving  or  col- 
lecting money  as  the  agent,  or  attorney  in 
fact,  of  the  plaintiff,  is  insufficient.  Porter 
v.  Hermann,  8  Cal.  619.  Where  the  char- 
acter or  capacity  in  which  a  party  is  alleged 
to  have  acted  is  essential  to  the  charge  of 
fraud,  that  character  or  capacity  must  be 
averred  in  direct  and  positive  terms,  or  the 
charge  must  fall.  Porter  v.  Hermann,  8 
Cal.  619. 

Proof  of  fraud.  Fraud  on  the  part  of 
the  defendant  is  necessary,  in  order  that  he 
may  be  arrested  in  a  civil  action  for  debt. 
In  re  Holdforth,  1  Cal.  438.  The  fraudu- 
lent intent  to  procure  goods  without  pay- 
ment is  consummated  when  the  possession 
of  the  goods  is  obtained  without  payment, 
according  to  the  terms  of  sale:  the  debt  is, 
under  such  circumstances,  fraudulently  con- 
tracted; and  though  payment  after  this 
might  satisfy  the  debt,  yet  it  would  not  re- 
move the  taint  of  fraud.  Stewart  v.  Levy, 
36    Cal.    159.     To    sustain    allegations    of 


IS  necessary  to  prove  that  the  representa- 
tions alleged  to  have  been  fraudulent  and 
deceitful  were  not  true.  Belden  v.  Hen- 
riques,  8  Cal.  87. 

Form  of  verdict.  A  special  verdict,  that 
the  defendant  was  not  guilty  of  fraud,  is 
not  inconsistent  with  a  general  verdict 
giving  judgment  against  him  for  funds  in 
his  hands  belonging  to  the  plaintiff.  Port- 
land Cracker  Co.  v.  Murphy,  130  Cal.  649; 
63  Pac.  70.  Where  the  defendant  denies 
the  indebtedness,  and  also  denies  the  com- 
mission of  the  alleged  fraud,  a  general  ver- 
dict in  favor  of  the  plaintiff  does  not 
amount  to  a  finding  against  the  defendant 
upon  the  issue  joined  as  to  fraud  in  con- 
tracting the  debt.  Merritt  v.  Wilcox,  52 
Cal.  238. 

Arrest  on  final  process.  The  liberty  of 
the  citizen  is  not  to  be  imperiled  by  the 
presumption  that  a  process  has  been  issued 


§479 


ARREST   AND   BAIL, 


466 


in  a  proper  ease:  under  such  a  presumption, 
there  is  not  a  single  case  in  which  a  party 
might  not  be  arrested  and  imprisoned  on 
final  process,  although  fraud  never  entered 
into  the  elements  of  the  original  suit  or 
controversy.  Matoon  v.  Eder,  6  Cal.  57. 
While  the  arrest  of  a  defendant  on  final 
process  is  not  expressly  authorized  by  stat- 
ute, yet,  as  the  issue  of  fraud  may  be 
framed  and  tried,  and  the  defendant  ad- 
judged guilty  upon  proper  proof,  and  as 
the  constitution  does  not  prohibit,  but  by 
implication  authorizes,  imprisonment  for 
fraud,  the  courts  may  order  execution 
against  the  person  of  a  defendant  ad- 
judged guilty  of  fraud.  Stewart  v.  Levy, 
36  Cal.  159.  An  execution  against  a  person 
can  issue  only  under  the  direction  of  the 
court,  based  upon  the  special  facts  found, 
and  such  facts  cannot  be  considered  by 
the  jury,  unless  averred  in  the  pleadingsj 
it  must  be  warranted  by  the  judgment, 
and  it  has  no  validity  if  in  excess  thereof; 
to  authorize  an  arrest  on  execution,  the 
fraud  must  be  stated  in  the  judgment;  the 
facts  upon  which  the  charge  is  based  must 
be  specifically  alleged  in  the  complaint, 
in  order  to  authorize  the  judgment  con- 
victing the  defendant  of  fraud;  the  judg- 
ment is  the  determination  of  the  rights  of 
the  parties  upon  the  facts  pleaded,  for  the 
judgment  cannot,  in  any  event,  exceed  the 
relief  warranted  by  the  case  stated  in  the 
complaint.  Davis  v.  Robinson,  10  Cal.  411. 
The  courts  have  power  to  pronounce  such 
judgment  as  the  exigencies  of  the  case  re- 
quire, by  virtue  of  their  organization  and 
common-law  powers,  except  when  limited 
by  statute;  and  it  would  be  an  absurd 
provision  of  law  to  authorize  the  arrest  of 
a  party  accused  of  a  fraudulent  act,  and 
to  require  his  discharge  upon  his  being 
found  guilty.  Stewart  v.  Levy,  36  Cal.  159. 
A  party  cannot  be  imprisoned  under  a 
judgment  in  a  civil  action  for  assault  and 
battery:  such  judgment  is  as  much  a  debt 
as  though  recorded  in  an  action  of  as- 
sumpsit. Ex  parte  Prader,  6  Cal.  239.  A 
defendant  in  custody  under  civil  process 
will  be  delivered  over  to  the  agent  of  an- 
other state  upon  the  proper  requisition  in 
a  criminal  action;  the  interests  of  a  private 
suitor  being  subordinate  to  those  of  the 
people.    Ex  parte  Rosenblat,  51  Cal.  2S5. 

Right  to  jury  trial.  The  question  of 
fraud  must  be  submitted  to  the  jury,  ex- 
cept so  far  as  may  be  necessary  to  au- 
thorize the  arrest  of  a  pending  action;  to 
justify  execution  against  the  person,  which 
may  be  followed  by  imprisonment,  an  is- 
sue must  be  framed,  and  determined  like 
issues  of  fact  raised  upon  the  pleadings; 
fraud  is  an  ofl'ense  involving  moral  turpi- 
tude, and  is  followed  by  im[nisonnient,  not 
merely  as  a  means  of  enforcing  payment, 
but  also  as  a  punishment,  and  the  rigiit  to 
submit  the  question  of  indebtedness  to  the 
jury   being  inviolate,  it  would   be  strange 


to  deny  a  jury  trial  upon  a  question  in- 
volving loss  of  character  and  liberty. 
Davis  V.  Robinson,  ID  Cal.  411.  Imprison- 
ment for  debt,  except  in  cases  of  fraud,  is 
prohibited  by  the  constitution;  conse- 
quently, every  intendment  must  be  in 
favor  of  the  liberty  of  the  subject,  and  his 
right  to  trial  by  jury,  which  is  likewise  se- 
cured.  Matoon  v.  Eder,  6  Cal.  57. 

Arrest  under  civil  process  for  breach  of  war- 
ranty.   See  note  20  L.  R.  A.   (N.  S.)   844. 

Bight  to  arrest  In  breach  of  promise  case.  See 
note  59  L.  R.  A.  9.57. 

Bight  to  arrest  partner  in  civil  action  or  pro- 
ceeding.   See  note  4  h.  R.  A.   (N.  S.)   130. 

CODE    COMMISSIONEES'    NOTE.      1.  Injury 

to  persons.  Subd.  1.  The  first  subdivision  of 
the  section  (73)  of  the  Practice  Act,  for  which 
this  is  a  substitute,  provided  that  "the  defendant 
may  be  arrested,  where  the  action  is  for  willful 
injury  to  person  or  character."  It  was  held,  that 
this  provision  was  in  conflict  with  §  15  of  article 
I  of  the  constitution.  Southworth  v.  liesing,  3 
Cal.  378;  Ex  parte  Prader,  6  Cal.  239;  see  also 
In  re  Holdforth,  1  Cal.  438. 

2.  Actions  not  arising  out  of  contract.  The 
defendant  may  be  arrested  in  an  action  to  recover 
from  an  innkeeper  for  baggage  lost  at  his  hotel. 
People  V.  Willett,  2t)  Barb.  78.  So  in  an  action 
for  a  false  warranty.  Fowler  v.  Abrams,  3  E.  D. 
Smith,  1,  13.  So  in  an  action  for  fraudulent 
misrepresentations  as  to  the  responsibility  of  a 
party,  whereby  credit  was  given.  Sherman  v. 
Brantley,  7  Rob.   (N.  Y.)   55. 

3.  Agents.  Subd.  2.  In  an  action  to  recover 
money  received  by  a  person  as  agent,  he  cannot 
be  arrested  without  showing  some  fraudulent  con- 
duct on  his  part,  or  a  demand  on  him  by  the 
principal  and  a  refusal  by  him  to  pay.  In  re 
Holdforth,  1  Cal.  438.  A,  being  the  owner  of 
an  invoice  of  goods  in  the  city  of  Kew  York, 
sold  one  half -interest  therein  to  B  with  an  ar- 
rangement that  the  latter  should  proceed  to  San 
Francisco  and  there  dispose  of  the  same  on  joint 
account.  Held,  that  this  constituted  a  partner- 
ship between  them,  and  that  B  was  not  an  ayent, 
and  not  subject  to  arrest  in  an  action  by  A  to 
recover  a  part  of  the  proceeds  of  the  sales.  Soule 
v.  Hayward,  1  Cal.  345. 

4.  Fraudulent  intent.  Subd.  3.  Pike  v.  Lent, 
4  Sandf.  650;  Roberts  v.  Randel,  3  Sandf.  710; 
Watson  V.  McGuire,  33  How.  Pr.  87;  Sherlock  v. 
Sherlock,  7  Abb.  Pr.  (N.  S.)  22;  Merrick  v. 
Suydam,  1  Code  Rep.   (N.  S.)  212. 

5.  Obligation.  Debt.  Subd.  4.  The  alleged 
fraud  must  be  directly  connected  with  the  debt 
or  obligation.  Oatley  v.  Lewin,  47  Barb.  18. 
"Debt"  and  "obligation"  have  the  same  meaning: 
both  import  a  contract  liability.  McGovern  v. 
Payn,  32  Barb.  83;  Smith  v.  Corbiere,  3  Bosw. 
634;  Ely  v.  Steigler,  9  Abb.  Pr.  (N.  S.)  35. 
But  in  Crandall  v.  Bryan,  15  How.  Pr.  48,  it 
was  held  that  the  term  "obligation"  was  intended 
to  include  those  cases  where  the  action  would  not 
sound  in  contract. 

6.  Allegations  of  fraud.  The  allegations  in 
the  application  must  satisfy  the  judge  judicially, 
but  the  material  facts  may  be  stated  upon  infor- 
mation and  belief,  if  accompanied  by  statements 
of  the  nature  and  sources  of  the  information. 
Crandall  v.  Bryan,  15  How.  Pr.  48;  5  Abb.  Pr. 
162.  A  defendant  cannot  be  arrested  for  fraudu- 
lent misrepresentations  in  obtaining  money,  when 
the  representations  were  made  after  the  money 
was  obtained.    Snow  v.  Halstead,  1  Cal.  361. 

7.  Evidence.  To  sustain  the  allegations  of 
fraud  and  deceit  in  contracting  a  debt,  it  is  ne- 
cessary to  prove  that  the  representations  alleged 
to  have  been  fraudulent  and  deceitful  were  not 
true.    Belden  v.  Henriques,   8  Cal.  87. 

8.  Fraudulent  intent.  Subd.  5.  Proof  of  an 
actual  intent  to  defraud  is  necessary.  Pacific 
Mutual  Ins.  Co.  v.  Machado,  16  Abb.  Pr.  451; 
Caldwell's  Case,  13  Abb.  Pr.  405;  Krauth  v.  Vial, 
10  Abb.  Pr.  139. 


467 


ORDER   FOR   ARREST — AFFIDAVIT — SUFFICIENCY   OF.  §§480,481 


CODE  COMMISSIONERS'  NOTE.  Granting 
an  or(ii>r  of  arrost  is  discretionary  with  the  judge. 
Knickerbocker  Life  Ins.  Co.  v.  Kcclesine,  G  -Abb. 
Pr.  (N.  S.)  9;  Davis  v.  Scott.  15  Abb.  Pr.  127; 
Lapeoug  v.  Hart,  9  How.  Pr.  541. 


§  480.  Order  for  arrest,  by  whom  made.  An  order  for  the  arrest  of  the 
defendant  must  be  obtained  from  a  judge  of  the  court  in  which  the  action 
is  brought. 

Legislations  480.  1,  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  74  (New  York  Code, 
§  180),  which  had  the  word  "shall,"  instead  of 
"must." 

2.  Amended  by  Code  Amdts.  1880,  p.  3,  omit- 
ting from  the  end  ckf  the  section,  after  "brought," 
the  words  "or  from  a  county  judge." 

§  481.  Affidavit  to  obtain  order,  what  to  contain.  Tlio  order  may  be 
made  whenever  it  appears  to  the  judge,  by  the  affidavit  of  the  plaintiff,  or 
some  other  person,  that  a  suf^cient  cause  of  action  exists,  and  that  the  case 
is  one  of  those  mentioned  in  section  four  hundred  and  seventy-nine.  The 
affidavit  must  be  either  positive  or  upon  information  and  belief;  and  when 
upon  information  and  belief,  it  must  state  the  facts  upon  which  the  informa- 
tion and  belief  are  founded.  If  an  order  of  arrest  be  made,  the  affidavit 
must  be  filed  with  the  clerk  of  the  court. 

fendant  was  guilty  of  fraud  either  in  pro- 
curing the  property  involved  in  the  action, 
or  in   withholding   the   purchase-money   re- 


Legislation  8  481.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  75  (New  York  Code, 
§  181),  which  had  (1)  the  words  "shall  appear'| 
instead  of  "appears,"  and  (2)  the  word  "shall" 
instead   of   "must"    wherever   these  words   appear. 

3.  Amended  by  Code  Amdts.  1873-74,  p.  305, 
changing,  at  the  end  of  the  section,  the  word 
"court"    from   "county." 

Sufficiency  of  affidavit.  That  it  may  "ap- 
pear" to  the  judge,  it  is  necessary  that  the 
facts  shall  be  stated  by  competent  evi- 
dence; but  it  is  competent  to  present  them 
bv  affidavit.  Neves  v.  Costa,  5  Cal.  App. 
lil;  89  Pac.  860.  The  arrest  upon  affidavit 
is  intended  merely  to  secure  the  presence 
of  the  defendant  until  final  .iudgment;  and 
in  order  to  detain  and  imprison  his  person 
afterwards,  the  fraud  must  be  alleged  in 
the  complaint,  be  passed  upon  by  the  jury, 
and  be  stated  in  the  judgment.  Davis  v. 
Robinson,  10  Cal.  411.  The  jurisdiction  to 
issue  an  order  of  arrest  depends  upon  the 
affidavit  required  by  this  section  (Ex  parte 
Howitz,  2  Cal.  App.  752;  84  Pac.  229; 
Neves  v.  Costa,  5  Cal.  App.  Ill;  89  Pac. 
860);  and  an  insufficient  affidavit  makes 
the  order  of  arrest  void:  a  warrant  issued 
thereunder  does  not  authorize  the  deten- 
tion of  the  defendant.  Ex  parte  Fknnioto, 
120  Cal.  316;  52  Pac.  726.  The  affidavit 
must  disclose  that  a  suffieient  cause  of  ac- 
tion exists,  and  that  the  case  is  one  of 
those  for  which  the  remedy  of  arrest  is 
provided  (McGilvery  v.  Morchead,  2  Cal. 
607);  and  that  the  case  is  one  mentioned 
in  §  479,  ante  (Neves  v.  Costa,  5  Cal.  App. 
Ill;  89  Pac.  860);  and  the  power  of  the 
court  is  limited  to  the  facts  and  conditions 
which  are  made  to  appear  therein.  Lay  v. 
Superior  Court,  11  Cal.  App.  5.j8;  105  Pac. 
775.  A  party  is  entitled  to  an  order  of 
arrest,  where  the  circumstances  detailed 
would  induce  in  a  reasonable  mind  the  be- 
lief that  a  fraud  was  intended  to  be  per- 
petrated: it  is  not  necessary  that  he  should 
show  positively  the  commission  of  a  fraud 
(Southworth  v.  Resing,  3  Cal.  377);  but 
circumstances  must  be  disclosed  from  which 
an    inference   can   be    drawn   that    the   de- 


ceived from  the  sale  thereof,  as  the  agent 
for  the  plaintiff.  In  re  Holdforth,  1  Cal. 
438.  As  a  matter  of  practice,  it  is  safest 
to  order  an  arrest,  even  in  cases  of  doubt, 
because  the  defendant  is  protected  against 
abuse  of  the  process  by  the  undertaking 
of  the  plaintiff,  while,  on  the  other  hand, 
frauds  are  proverbially  concocted  with  so 
much  artfulness 'and  ingenuity  as  to  ren- 
der them  at  all  times  difficult  to  be  ex- 
posed; and  when  a  case  actually  exists,  the 
plaintiff  is  remediless  without  process  of 
arrest:  a  different  rule  would  almost,  if  not 
certainly,  destroy  its  efficiency  as  a  legal 
remedy.  Southworth  v.  Resing,  3  Cal.  377. 
The  facts  necessary  to  be  shown  must  ap- 
pear by  the  positive  averments  of  the  affi- 
davit: a  reference  to  the  complaint,  or  to 
any  other  paper,  to  show  what  the  affidavit 
itself  should  disclose,  although  it  is  posi- 
tively averred  that  such  complaint  or  paper 
is  true,  is  insufficient.  McGilvery  v.  More- 
head,  2  Cal.  607;  Ex  parte  Fkumoto,  120 
Cal.  316;  52  Pac.  726.  It  is  not  enough  to 
assert  a  fraudulent  intent  in  general  terms: 
the  specific  facts  must  be  shown,  that  the 
court  itself  may  deduce  the  fraud,  and  the 
question  of  sufficiency  not  left  to  be  passed 
upon  by  the  party.  Ex  parte  Fkumoto,  120 
Cal.  316;  52  Pac.  726.  The  affidavit  may 
be  based  on  information  and  belief  (Ma- 
toon  v.  Eder,  6  Cal.  57);  but  statements 
of  fact,  made  upon  information  and  belief, 
or  which  are  of  such  a  character  that  they 
could  only  be  so  made,  without  stating  the 
facts  upon  which  such  information  and 
belief  are  founded,  are  fatally  defective. 
Ex  parte  Fkumoto,  120  Cal.  3*^16;  52  Pac. 
726.  The  court  has  no  jurisdiction  to  make 
an  order  for  arrest,  where  the  affidavit  does 
not  aver  that  the  indebtedness  sued  for,  or 
any  other  cause  of  action,  exists:  sucli  an 
affidavit  is  fatally  defective  (In  re  Vinich, 
86  Cal.  70;  26  Pac.  52S);  and  where  there 


M82 


ARREST  AND  BAIL. 


468 


is  a  total  defect  of  evidence  as  to  any  es- 
sential fact  in  the  affidavit,  the  court  acts 
without  any  jurisdiction,  and  the  act  is 
void;  but  where  the  court  has  jurisdiction, 
and  makes  a  mistake  concerning  the  just 
weight  and  importance  of  the  evidence, 
the  act  is  merely  erroneous,  and  is  good 
until  reversed.  Dusy  v.  Helm,  59  Cal.  188. 
The  presentation  of  such  evidence,  as,  alone, 
would  be  receivable  upon  the  trial  of  an 
action  to  justify  an  ordinary  judgment  for 
money,  is  required  of  a  plaintiff  who  de- 
sires, in  a  civil  action,  to  enforce  his  claim, 
at  the  outset,  by  the  arrest  and  imprison- 
ment of  the  defendant,  that  is.  to  have 
execution  before  obtaining  judgment.  Ex 
parte  Fkumoto,  12(1  Cal.  ;;ili;  .ii:  Pac  72ii. 
Where  the  judge  has  no  jurisdiction  to  act, 
his  order  of  arrest  is  void;  and  whether  he 
has  jurisdiction,  must  be  determined  from 
the  affidavit  itself,  and  not  from  what  the 
judge  thinks  it  authorizes  him  to  do;  the 
court  cannot  confer  jurisdiction  by  merely 
assuming  it,  nor  can  its  determination  that 
it  has  jurisdiction  confer  it;  and  the  plain- 
tiff must  see  to  it  that  he  is  clothed  with 
actual,  not  merely  apparent,  authority,  be- 
fore he  can  deprive  the  defendant  of  his 
liberty.  Fkumoto  v.  Marsh,  130  Cal.  66; 
80  Am.  St.  Eep.  73;  62  Pac.  303,  509.  An 
averment  that  goods  were  carried  away  in 
an  express  wagon,  to  a  place  unknown  to 
the  plaintiff,  is  not  sufficient  to  show  a 
fraudulent  purpose:  they  may  have  been 
thus  taken  for  sale  or  storage,  in  perfect 
good  faith.  Ex  parte  Fkumoto,  120  Cal. 
316;  52  Pac.  726.  That  the  defendant 
"will  escape  from  the  state,"  etc.,  is  a  mere 
statement  of  the  conclusion  or  belief  of  the 
affiant,  and,  without  the  statement  of  the 
facts  from  which  such  conclusion  is  drawn, 
or  upon  which  such  belief  is  founded,  is 
not  evidence  upon  which  the  court  is  at 
liberty  to  act.  Id.  Tnat  the  defendant 
"will  escape  from  the  state,"  and  thus  "de- 
fraud and  cheat  the  plaintiff,"  is  not  the 
equivalent  of  the  statutory  requirement, 
"that  he  is  about  to  depart  from  the  state, 
with  intent  to  defraud  his  creditors":  when 
the  language  of  such  a  statute  is  departed 
from,  the  party  must,  at  his  peril,  employ 

§  482.  Security  by  plaintiff  before  order  of  arrest.  Before  making  the 
order,  the  judge  must  require  a  written  undertaking  on  the  part  of  the 
plaintiff,  with  sureties  in  an  amount  to  be  fixed  by  the  judge,  which  must 
be  at  least  five  hundred  dollars,  to  the  effect  that  the  plaintiff  will  pay  all 
costs  which  may  be  adjudged  to  the  defendant,  and  all  damages  which  he 
may  sustain  by  reason  of  the  arrest,  if  the  same  be  wrongful,  or  without 
sufficient  cause,  not  exceeding  the  sum  specified  in  the  undertaking.  The 
undertaking  must  be  filed  with  the  clerk  of  the  court. 


words  of  equivalent  import,  and  a  failure 
in  this  respect  is  fatal.  Id. 

New  affidavits.  Where  a  party  is  once 
arrested  and  discharged,  he  cannot  be  ar- 
rested again  in  the  same  action;  and  it  be- 
ing always  presumed  that  the  plaintiff,  in 
his  affidavit  for  arrest,  states  his  ease  as 
fully  as  he  can  to  effect  his  object,  new  or 
different  affidavits  cannot  bo  allowed  at 
pleasure:  a  different  rule  would  lead  to  har- 
assing arrests,  and  open  a  wide  door  to 
perjury.  McGilvery  v.  Morehead,  2  Cal. 
607. 

Objection  to  affidavit.  Objection  to  the 
insufficiency  of  the  affidavit  cannot  be  set 
up  by  third  parties,  nor  even  by  the  de- 
fendant himself  after  judgment:  by  put- 
ting in  bail  and  neglecting  to  move  to  be 
discharged,  he  consents  to  process,  and 
waives  all  irregularities.  Matoon  v.  Eder, 
6  Cal.  57. 

CODE  COMMISSIONERS'  NOTE.     1.  Affidavit. 

The  affidavit  must  show  the  facts  relied  upon  by 
positive  averment ;  and  it  is  not  sufficient  to  refer 
to  the  complaint,  or  to  any  other  paper,  to  show 
what  the  affidavit  ought  itself  to  disclose.  Mc- 
Gilvery V.  Morehead,  2  Cal.  607.  To  entitle  a 
party  to  the  remedy  of  arrest,  it  is  not  necessary 
to  show  positively  the  commission  of  a  fraud. 
It  is  sufficient  if  the  circumstances  detailed  would 
induce  a  reasonable  belief  that  a  fraud  was  in- 
tended. Southworth  v.  Resinp,  3  Cal.  377.  An 
affidavit  for  arrest,  made  on  information  and  be- 
lief, that  the  defendant  has  been  guilty  of  fraud 
in  contracting  the  debt,  or  in  endeavoring  to  pre- 
vent its  collection,  in  the  terms  required  by  stat- 
ute, and  followed  by  an  averment  of  the  facts  on 
which  the  belief  is  founded,  also  stated  on  infor- 
mation and  belief,  is  sufficient.  Matoon  v.  Eder, 
6  Cal.  57;  City  Bank  v.  Lumley,  28  How.  Pr. 
397;  Blason  v.  Bruno,  21  How.  Pr.  112;  12  Abb. 
Pr.  265;  38  Barb.  520;  Cook  v.  Roach,  21  How. 
Pr.  152;  Peel  v.  Elliott.  16  How.  Pr.  481.  In- 
sufficiency of  the  affidavit  on  which  the  writ  of 
arrest  issues  cannot  be  set  up  in  defense  by  third 
parties,  nor  by  the  defendant  himself  after  judg- 
ment.     Matoon  v.  Eder,  6  Cal.  57. 

2.  Order  of  arrest.  The  order  of  arrest  is  only 
an  intermediate  remedy  or  process  to  secure  the 
presence  of  the  party  until  final  judgment,  and 
the  facts  on  which  it  is  based  must  be  affirma- 
tively found,  and  the  fraud  stated  in  the  judg- 
ment, in  order  to  authorize  an  arrest  on  final 
process.  Matoon  v.  Eder,  6  Cal.  57.  It  is  best 
to  award  an  arrest  even  in  cases  of  doubt,  for  the 
defendant  is  protected  by  his  bond  from  abuse 
by  the  process,  without  which  process  the  plain- 
tiff may  be  remediless.  Southworth  v.  Resing, 
3  Cal.  377;  see  also  Davis  v.  Robinson,  10  Cal. 
411. 


Undertakings. 

1.  Generally.     Post.  §  lii.")(i. 

2.  Court     commissioner's     power 
Ante.    §  259. 


to     take. 


Legislation  g  482.  1.  Enacted  March  11,  1873; 
baKr-c]  on  I'ractici-  Act,  §  70  (New  York  Code, 
§  182},    which    read:    "Before    making    the    order, 


the  judge  shall  require  a  written  undertaking  oi 
tliH  part  of  the  plaintiflf,  with  sureties,  to  the 
cfTert  that  if  the  defendant  recover  judgment,  the 
idaintiff  will  pay  all  costs  and  charges  that  may 
be  awarded  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  arrest, 
not  exceeding  the  sura  specified  in  the  undertak- 
ing,  which  shall  be  at  least  five  hundred  dollars. 


469 


ORDER  FOR   ARREST — SURETIES — DUTY   OF   SHERIFF.  §§483-485 


Each  of  the  surftics  shall  annex  to  the  undertak- 
ing an  affidavit  that  he  is  a  resident  and  house- 
holder, or  freeholder,  within  the  state,  and  worth 
double  the  sum  specified  in  the  undertaking,  over 
and  above  all  his  debts  and  liabilities,  exclusive 
of  property  exempt  from  execution.  The  under- 
taking shall  be  liled  with  the  clerk  of  the  court." 
When  enacted  in  1872,  (1)  the  word  "shall"  was 
changed  to  "must,"  wherever  it  occurs,  and  (2) 
the  sentence  beginning  "Each  of  the  sureties" 
•was  omitted. 

2.    Amended  by  Code  Amdts.  1873-74,  p.  305. 

Damages  for  wrongfully  procuring  ar- 
rest. Daiiinges  for  wroiigt'nlly  securiiiff  the 
arrest  of  a  defemlant  siioulil  not  be  im- 
posed on  the  party  applying  for  the  order, 
■where  the  .iudge  to  whom  the  application 
■was  made  had  jurisdiction  to  pass  upon  the 
BufRciency  of  the  evidence  disclosed  by  the 
affidavit,  unless  there  was  an  entire  lack 
of  evidence  of  some  essential  fact  which 
the  law  requires  to  be  shown.  Dusv  v.  Helm, 
-59Cal.  188. 

Action  on  undertaking  in  justice's  court. 
A    defendant,    arrested   in    an    action    in    a 


§ 


justice's  court,  and  subsequently  dis- 
charged, cannot  maintain  an  action  on  the 
undertaking  given  to  procure  his  arrest, 
jjending  an  appeal  by  the  plaintiff  to  the 
superior  court  from  the  judgment  of  the 
justice.  Stechhan  v.  Koraback,  67  Cal.  29; 
7  Pac.  7. 

CODE  COMMISSIONERS'  NOTE.  The  form  of 
aflidavit  of  the  sureties  is  omiltid.  Section  1057 
of  this  code  prescribes  the  form  to  be  used  when- 
ever an  undertaking  is  reciuired.  The  undertaking 
may  be  executed  by  any  person,  at  the  instance 
of  the  plaiiitilT,  who  will  undertake  unqualifiedly 
that  the  plaintiff  will  indemnify  the  defendant 
for  all  damages  he  may  sustain.  Lefhngwell  v. 
Chave,  19  How.  Pr.  54;  10  Abb.  Pr.  472;  5 
Bosw.  70.'J;  Bellinger  v.  Gardner,  2  Abb.  Pr. 
441;  Askins  v.  Ilearns,  3  Abb.  Pr.  184.  Per 
contra,  Richardson  v.  Craig,  1  Duer,  666.  If  a 
foreign  state  is  plaintiff,  the  undertaking  may  be 
signed  by  the  resident  minister.  Republic  of 
Mexico  V.  Arangoiz,  5  Duer,  634.  The  obliga- 
tions of  sureties  are  assumed  with  reference  to 
the  law,  which  becomes  part  of  their  contract. 
Matoon  v.  Eder,  6  Cal.  57. 


483.  Order,  when  made,  and  its  form.  The  order  may  be  made  at  the 
time  of  the  issuing  of  the  summons,  or  any  time  afterwards  before  judtrment. 
It  must  require  the  sheriff  of  the  county  where  the  defendant  may  be  found, 
forthwith  to  arrest  him  and  hold  him  to  bail  in  a  specified  sum,  and  to  return 
the  order  at  a  time  therein  mentioned,  to  the  clerk  of  the  court  in  which  the 
action  is  pending. 


Legislation  §  483.  Enacted  March  11,  1873; 
■based  on  Practice  Act,  §  77  (New  York  Code, 
§  183),  which  had  (1)  the  words  "to  accompany" 
instead  of  "at  the  time  of  the  issuing  of,"  and 
(2)  the  word  "shall"  instead  of  "must"  before 
"'require." 

Order  before  action  commenced.  Until 
suit  is  instituted,  there  can  be  no  defend- 
ant, and  consequently  no  authority  to  issue 
an  order  of  arrest;  such  an  order,  issued 
before  action  commenced,  is  void  for  want 
of  jurisdiction.    Ex  parte  Cohen,  6  Cal.  318. 

Arrest  on  final  process.  See  note  ante, 
§479. 

CODE  COMMISSIONERS'  NOTE.  1.  "Before 
judgment."  These  terms  mean  "the  final  de- 
termination   of    the    rights    of    the    parties    in    the 


action."  Although  a  judgment  by  default  has  been 
taken,  founded  upon  allegations  of  fraud,  and  the 
defendant  let  in  to  defend  the  judgment  standing 
as  security,  yet  he  may  be  arrested  and  held  to 
bail  in  the  action.  Union  Bank  v.  Mott,  8  Abb. 
Pr.  150;  Mott  v.  Union  Bank,  35  How.  Pr.  332; 
38  N.  Y.   18;   4  Abb.  Pr.    (X.  S.)    270. 

2.  Form  of  order.  There  is  but  one  form 
under  the  code,  and  every  order  must  require  the 
officer  to  arrest  the  defendant,  and  hold  him  to 
bail  in  a  specified  sum.  Tracy  v.  Veeder,  35 
How.  Pr.  209;  but  see  Elston  v.  Potter.  9  Bosw. 
635;  Sherlock  v.  Sherlock,  7  Abb.  Pr.   (X.  S.)   22. 

3.  Return.  If  the  order  direct  the  return 
within  "five  days  after  the  arrest  of  the  defend- 
ant," it  is  sufficient.  Continental  Bank  v.  De 
Mott,  8  Bosw.  696.  If  the  order  is  made  return- 
able on  Sunday,  the  irregularity  may  be  remedied 
either  by  waiver,  as  the  putting  in  of  bail  (Wright 
v.  Jeffrey,  5  Cow.  15),  or  by  amendment.  Stone 
V.   Martin,  2  Denio,   185. 

§  484.  Affidavit  and  order  to  be  delivered  to  the  sheriff,  and  copy  to 
defendant.  The  order  of  arrest,  with  a  copy  of  the  affidavit  upon  which  it 
is  made,  must  be  delivered  to  the  sheriff,  who,  upon  arresting  the  defendant, 
must  deliver  to  him  a  copy  of  the  affidavit,  and  also,  if  desired,  a  copy  of  the 
order  of  arrest. 


To  excuse  omission  of  duty  by  sheriff,  direction 
by  party  or  attorney  must  be  in  writing.  Pol. 
Code,  §  4166. 

Legislation  §  484.  Enacted  March  11.  1873; 
based  on  I'ractice  Act,  §  78  (Xew  York  Code 
§  184),  which  had  (1)  the  word  "shall"  instead 
of  "must,"  in  both  instances,  and  (2)  the  word 
"the"  instead  of  "a,"  after  the  words  "deliver  to 
him." 

CODE      COMMISSIONERS'      NOTE.       If      the 


copies  are  not  delivered  by  the  sheriff,  upon  mak- 
ing the  arrest,  it  is  an  irregularity  only,  and  will 
not  entitle  the  defendant  to  a  discharge.  Barker 
V.  Cook,  25  How.  Pr.  190;  16  Abb.  Pr.  83; 
Courter  v.  McXamara,  9  How.  Pr.  255;  Keeler 
V.  Belts,  3  Code  Rep.  183.  An  omission,  in  the 
copy  of  the  affidavit  served,  of  the  jurat  and 
signature  of  the  party,  does  not  affect  the  valid- 
ity of  the  order.  Barker  v.  Cook,  25  How.  Pr. 
190;    16  Abb.  Pr.  83;  40  Barb.  254. 


§  485.     Arrest,  how  made.     The  sheriff  must  execute  the  order  by  arrest- 
in"  the  defendant  and  keeping  him  in  custody  until  discharged  by  law. 


Production  of  procesg  upon  request. 
i  4169. 


Pol.  Code, 


Legislation  S  485.      Enacted  March    11,    1872! 
based    on    Practice    Act,   §   79    (Xew    York    Cod-', 


§§  486-489  ARREST   AND  BAIL.  470 

§  185),  which  had  the  word  "shall"  instead  of  cannot  be  arrested  again  in  the  same  ae- 

"mist."  tion.  McGilvery  v.  Morehead,  2  Cal.  607. 

No  second  arrest  in  same  action.     Where  pj^^^  ^^^^^  order  of  arrest  in  civil  action  may 

a  party  is  once  arrested  and  discharged,  he  be  executed.    See  note  Ann.  Cas.  1912B,  1376. 

§  486.  Defendant  to  be  discharged  on  bail  or  deposit.  The  defendant,  at 
any  time  before  execution,  must  be  discharged  from  the  arrest,  either  upon 
giving  bail  or  upon  depositing  the  amount  mentioned  in  the  order  of  arrest.. 

Legislation  §  486.     Enacted  March  11,   1872;  action,    does    not,    per    se,    operate    to    dis- 

based   on   Practice   Act    §  80  (New   York   Code  charge  the  defendant;  the  latter's  interest. 

§  186),   which  had    (1)    the   word      shall      instead  .•"                ^        ii,j.i-i_j-         -i-j^  -i-u 

of  "must,"   and   (2)   at  the  end  of  the  section,  being,   merely,  that  he  be   furnished   with, 

after    "arrest,"    the    words    "as    provided    in    this  proper    support    while    in    custody,    whether' 

chapter."  paij  for  by  the  plaintiff  or  not.    Ex  parte- 

Discharge    of    defendant.     A    party    ar-  Lamson,  50  Cal.  306. 

rested   may   be   relieved    therefrom   by    de-  code  COBIMISSIONERS'  NOTE.     1.  Release.. 

posit    or  bail,   or   by   moving   upon    affidavit  The  attorney  for  plaintiff  may  consent  to   the  re- 

tO  be   discharged;    and   should   the   court   re-  lease    of   the    defendant;    but    such    a    release    will 

J.          iTii-                  1111               li.  not   discharge    the   order,    and   the   defendant   may 

fuse  to  discharge  him,  or  should  he  neglect  thereafter  be  arrested  on  final  process.    Meech  v.. 

to    applv    for    such    discharge,    he    does    not  Loomis,  28  How.  Pr.  209;  14  Abb.  Pr.  428. 

waive    all    right    and    confess    such    fraud.  2.   Sheriff  must  accept  bail.     The  defendant  is- 

Tvr-i*    r.      ^   T?  la      R  Pnl    ' "  entitled    to    his    discharge    upon    tendering    bond, 

luaioon  \.  r..aer,  O  ^,ai.  Ol.  ^^-^^^  sufficient  sureties.     A  refusal  to  accept  such. 

Plaintiflf'S   failure   to   provide   for   prison-  bond     renders     the     sheriff    liable     to     an     action. 

er'S   support.      The    failure    of    the    plaintiff  Richards    v.    Porter,    7    Johns.    137:    Posterne    v. 

*„    „-|...,„.^„    .(;.,„:i      <?„,.    +!,«    ^„.^^„..j.    „<?    t--[,r^  Hanson,    2    Saund.    59;     85    Eng.    Reprint,    658: 

to   advance   funds   for   the   support   of   the  ^^^^.^^  ;    jj^i,_  ^  ^^^^   '^^.  gg  jf„g   RVint,  925.. 

defendant   in   jail,  under  arrest   m   a   civil 

§  487.  Bail,  how  given.  The  defendant  maj^  give  bail  by  causing  a  writ- 
ten undertaking  to  be  executed  by  two  or  more  sufficient  sureties,  to  the 
effect  that  they  are  bound  in  the  amount  mentioned  in  the  order  of  arrest,, 
that  the  defendant  will  at  all  times  render  himself  amenable  to  the  process 
of  the  court,  during  the  pendency  of  the  action,  and  to  such  as  may  be  issued 
to  enforce  tlie  judgment  therein,  or  that  they  will  pay  to  the  plaintiff  the- 
amount  of  any  judgment  which  may  be  recovered  in  the  action. 

Bail,  qualifications  of.    Post,  §§  494,  1057.  fense  by  third  parties,  in  an  action  upon. 

Legislation  §  487.     Enacted  March  11,   1873;        the   bail  bond,  nor  even  by  the  defendant^ 
based   on   Practice   Act,  §  81  (New   York    Code,        himself   after  judgment.    Matoon  V.   Eder,. 
§  187),   which  had    (1)    the  words   "stating   their         g  q^j    gy 
places    of    residence    and    occupations,"    after    the 

word    "sureties,"    and    (2)    the    word    "shall"    in-  CODE    COMMISSIONERS'    NOTE.      An    officer- 

stead  of  "will,"  before  "at  all  limes."  making  the  arrest  can  take  only  the  security  pre- 

Defense  to   action  on  bond.      The   insuffi-         scribed   by   statute;    but   the   party   at   whose   suit 
£  i.u        <Kj„    -i    ,„„«  ^.v,;„v,  +v,„  ^.Tv.;*^         the    arrest    is    made    may    take    any    security    he 
ciency  of  the  affidavit  upon  which  the  writ       j,ieases.    Winter  v.  Kinney,  1  N.  Y.  365;  Decker 
of  arrest   issues,   cannot  be   set   up  m   de-       v.  Judson,  16  N.  Y.  439. 

§  488.  Surrender  of  defendant.  At  any  time  before  judgment,  or  Avithin 
ten  days  thereafter,  the  bail  may  surrender  the  defendant  in  their  exonera- 
tion ;  or  he  may  surrender  himself  to  the  sheriff  of  the  county  where  he  was> 
arrested. 

Legislation  §  488.      Enacted  March   11,    1873;  the  bail  bond  of  a  defendant,  arrested  in  a  civil- 
re-enactment    of    Practice    Act,  §  82     (New    York  action,   are  not  bound   to   surrender  the  defendant 
Code,  §  188).  -vvithin  ten  days  after  judgment,   unless  the  plain- 
TcrU*    ^*    ^«.    ^-^^^t.    ^«*    ^-^^ti^r-^aA       rpi,„  t'*^   takes    such   measures   as   would   authorize   the- 
Wnt    of    ne    exeat    not    preserved.      The  officer    to    hold    defendant    in    cu.stody.     Alien    V. 
procedure    hv    w-hich    jurisdiction    is    to    be  Breslauer,    8   Cal.   552.      A    surrender,   within   ten 
exercised  may  be  prescrilied  bv  the  legis-  ^ays   after   execution,   is   a   cumpli;..-ice   with   the 
,    .                         1        u           -i             ii'-           ■      ii  statute.    Id.      A    portion    of    the    bail    may    make- 
lature.  except  where  it  would   im]>air  the  ihe   surrender.    In   re   Taylor,   7  How.   Pr.   212T 
constitutional  powers  of  the  court,  or  prac-  The  offer  of  a  party  to   surrender  himself  in  dis" 
ticallv  defeat  their  exercise,  and  the  pro-  ''harge   of   his    sureties,   was   held   to   be   a   good 
■     -          .1.1-1      IV       i.       1-ii            i  surrender.     IJabb    v.    Oaklev,    5    Cal.    93.      V/here 
cedure    established   by   the   legislature    does  the   .iudgment   will   not   warrant   a   writ   of   ca.   sa. 
not  include  the  writ  of  ne  exeat.    Ex  parte  to    be    issued    under    it,    the    bail    will    not    be- 
Harker.  49  '"'al.  465.  charged  for  neglecting  to  surrender  the  judgment 


CODE  COMMISSIONERS'  NOTE.     Sureties  on 


debtor.    Matoon  v.   Eder,   6  Cal.  51 


§  489.     Same.     Yor  the  purpose  of  surrendering  the  defendant,  the  bail,  at 
any  time  or  place  before  they  are  finally  charged,  may  themselves  arrest,  or,. 


471  BAIL — EXONERATION — NOTICE  OF  JUSTIFICATION.  §§490-493 

by  a  written  authority  indorsed  on  a  certified  copy  of  the  undertakinfr,  may 
empower  the  sheriff  to  do  so.  Upon  the  arrest  of  defendant  by  the  sheriff, 
or  upon  his  delivery  to  tlie  sheriff  ])y  the  bail,  or  upon  his  own  surrender, 
the  bail  are  exonerated,  if  such  arrest,  delivery,  or  surrender  take  pla^c 
before  the  expiration  of  ten  days  after  judjiment;  but  if  such  arrest,  deliv- 
ery, or  surrender  be  not  made  within  ten  days  after  judfrment,  the  bail  are 
finally  charged  on  their  undertaking,  and  bound  to  pay  the  amount  of  the 
judgment  within  ten  days  thereafter. 
Legislation  8  489.     Enacted  M.iroh  11,  1873;       might  have  ha<l  the  defendant  in  his  cus- 

s'Yflo\°"  J-T*i'''^  ^A*;  ^-^^  ^^^7  •T?''^-  ^l"rfor  tody,  under  such  order,  only  a  short  time. 
S  189),    which    had     (1)     the    word       hiin       after  *' '  nr   tj  ii        -ino    /-i    i      .i^.o       nr- 

••themselves   arrest."    (2)    the   word    "the"   instead  People     V.     McReynolds,     102     Cal.     308;     3G 

of  "arrest  of,"    (3)    the  words   "shall   be"   instead  Pac  ,590;   Babb  V.   Oaklev,  5   (',a\.  9.3. 

•'\>  "*-'"i'''^..^''^°/''^"7?"r-''*,"^/'    '-'^  ^LrnTt"-  Writ     of     capias     ad     satisfaciendum. 

Provided     instead  of     if,      l)efore     such  arrest,  ^i.        •     i             ^^    ■            ^           i                 -n 

(5)  the  words  "shall  be"  instead  of  "are,"  before  \\  here    the    .ludf^ment    is   not   such    as    will 

"finally  charged,"  and  (6)  the  word  •'be"  before  warrant    a    writ    of    ca.    sa.    to    be    issued 

"bound  to  pay."  Under    it,    the    bail    will    not    be    charged 

Exoneration    of    sureties.     The    sureties  for  neglecting  to   surrender  the  judgment 

on   a  bail   bond   are   exonerated  wiien   the  debtor.    Matoon  v.  Ivler,  6  Cal.  57. 

defendant    is    taken    into    the    custody    of  pQ^j.   COMMISSIONERS'  NOTE.     It  was  in 

the   sheriff   under   an   order   or   the   court;  Seaver  v.   Genner.    lo   Abb.   Pr.   •2.56,   held,   that 

and   the    vacation    of    such    order    does    not,  where   the    sureties   failed    to   justify,   but    the   de- 

hv    nnpratimi    nf    Inw     rpstorp    the    defend-  fendant    had    been    released,    the    sheriff    became 

Dv   operation   or   Jaw,   restore   tne   aeiena  ^.^.,    ^^^^  ^.^^^   surrender  the  defendant   by  re- 

aut    to    the    custody    of    the    sureties,    not-        arresting  him.     See   also    Sartos   v.   Merceques.   9 
withstanding    the    fact    that    the    sheriff       How.  Pr.  188. 

§  490.  Bail,  how  proceeded  against.  If  the  bail  neglect  or  refuse  to  pay 
the  judgment  within  ten  days  after  they  are  finally  charged,  an  action  may 
be  commenced  against  such  bail  for  the  amount  of  the  original  judgment. 

Legislation  §  490.  Enacted  March  11,  1872;  In  an  action  against  bail  whose  liability  is  fixed, 
based    on    Practice    Act,   §   84    (New    York    Code,         they    cannot    show    either    in    bar    or    mitiRation 

that    before     the     recovery    of    judgment     against 
their    principal    he    wa.s    and    since    has    been    in- 
solvent.     Lew   V.    Nicholas,    19    Abb.    Pr.    282:    1 
„    „   ...,,„„„.   -.T^™^       ,,   .  Rob.    614;    Metcalf   v.    Strylcer,    10    Abb.    Pr.    12; 

CODE    COMMISSIONERS'   NOTE.      Matoon   v.        31  garb    62 
Eder,    6   Cal.   57;    Otis   v.    Wakenian,    1    Hill,    604. 

§  491.  Bail,  how  exonerated.  The  bail  are  exonerated  by  the  death  of 
the  defendant  or  his  imprisonment  in  a  state  prison,  or  by  his  legal  dis- 
charge from  the  obligation  to  render  himself  amenable  to  the  process. 

Legislation  §  491.      Enacted   March    11.    1873;  Merritt    v.     Thompson,     1     Hilt.     550;     Olcott    v. 

b.ised    on    Practice   .\ct     §   85    (New    York    Code,  Lilly,    4    Johns.    407;    Hayes    v.    Carrington,    12 

S  191)     which   had  the   words   "shall   also  be"   in-  Abb.  Pr.   179;   21   How.  Pr.   143. 

stead  of  "rfre,"  after  "The  bail."  2.  Legal     discharge.       The     final     termination, 

otilv,    of    the    action    in    favor    of    the    defendant 

CODE    COMMISSIONERS'    NOTE.      1.  Death.  operates    as    a    legal    discharge.     Von    Gerhard    v. 

Bail  are  exonerated  by  the  death  of  the  principal.  Lifjhte,   13   Abb.   Pr.   101. 

§  492.  Delivery  of  undertaking  to  plaintiff,  and  its  acceptance  or  rejec- 
tion by  him.  "Within  the  time  limited  for  that  purpose,  the  sheriff  must  file 
the  order  of  arrest  in  the  office  of  the  clerk  of  the  court  in  which  the  action 
is  pending,  with  his  return  indorsed  thereon,  together  with  a  copy  of  the 
undertaking  of  the  bail.  The  original  undertaking  he  must  retain  in  his 
possession  until  filed,  as  herein  provided.  The  plaintiff,  within  ten  days 
thereafter,  may  serye  upon  the  sheriff  a  notice  that  he  does  not  accept  the 
bail,  or  he  is  deemed  to  have  accepted  them,  and  the  sheriff  is  exonerated 
from  liability.  If  no  notice  be  served  Avithin  ten  days,  the  original  under- 
taking must  be  filed  with  the  clerk  of  the  court. 

Legislation  §  492.  Enacted  March  11,  1873;  of  "must,"  wherever  this  word  occurs,  and  (2) 
based  on  Practice  Act,  §  86  (New  York  Code,  the  words  "shall  be"  instead  of  "is"  before 
§  192),   which   had    (1)    the   word    "•shall"   instead         "deemed"   and  before   "exonerated." 

§  493.  Notice  of  justification.  New  undertaking,  if  other  bail.  Within 
five  days  after  the  receipt  of  notice,  the  sheriff  or  defendant  may  give  to  the 


§  190),   as   amended  by   Stats.    1854,   Redding  ed.         that    before     the     recovery    of    judgment     against 
p.  60,  Kerr  ed.  p.  86,  which  had  the  word  "such" 
instead  of   "the,"   before   "original  judgment." 


§§  494—496  ARREST  AND   BAIL.  4:72 

plaintiff  or  his  attorney  notice  of  the  justification  of  the  same,  or  other  bail 
(specifying  the  places  of  residence  and  occupations  of  the  latter),  before  a 
judge  of  the  court  or  county  clerk,  at  a  specified  time  and  place ;  the  time 
to  be  not  less  than  five  nor  more  than  ten  days  thereafter,  except  by  con- 
sent of  parties.  In  case  other  bail  be  given,  there  must  be  a  new  under- 
taking. 

T„»nfi„o«.<«.,   «*  v,n      o„^  ^„of    R  40^  tii^S   tJi^   words   "or   county   judge"    after    "judge 

Justmcation  of  oail.    See  post,  §  493.  .  ft     -.nurt  " 

Legislation  §  493.    1.  Enacted  March  11,  1872;  CODE    COMMISSIONERS'    NOTE.      Leave    to 

based    on    Practice    Act,   §  87    (New    York    Code  except  may,  on  motion,  be  granted  after  the  time 

§  193),    which    had    the    word    "shall"    instead    of  }j^g  expired,  but  on   terms  and  without   prejudice 

"must,"  before  the  words  "be  a  new  undertaking.  jg   ^^y   right   of   the   sheriff.     Zimm   v.   Ritterman, 

3.   Amended  by  Code  Amdts.  1880,  p.  3,  omit-  5  Rob.    (N.  Y.)    618. 

§  494.     Qualifications  of  bail.     The  qualifications  of  bail  are  as  follows : 

1.  Each  of  them  must  be  a  resident  and  householder,  or  freeholder,  within 
the  state. 

2.  Each  must  be  worth  the  amount  specified  in  the  order  of  the  arrest,  or 
the  amount  to  which  the  order  is  reduced,  as  provided  in  this  chapter,  over 
and  above  all  his  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution;  but  the  judge  or  county  clerk,  on  justification,  may  allow  more 
than  two  sureties  to  justify  severally,  in  amounts  less  than  that  expressed 
in  the  order,  if  the  whole  justification  be  equivalent  to  that  of  two  sufficient 
bail. 

Qualifications   of  bail.    Post,  §  1057.  be"   to    "must,"    and    (b)    the   word    "county"    to 

_     _„  "state";    (2)    adding,  in  subd.  2,  the  word  "the" 

Legislation  §  494.    1.  Enacted  March  11,  1873;  before  "arrest  " 
based    on    Practice    Act,   §   88    (New    York    Code, 

§  194),   which   had    (1)    the  words   "shall   be"    in-  CODE  COMMISSIONERS'  NOTE.      See   §  1057 

stead    of    "are,"    in    the    introductory    paragraph,  of   this   code. 

and    (2)    also    the    words    "shall    be"    instead    of  Householder.     A  party  who  rents  and  occupies 

"must,"  in  first  line  of  subd.  2.  part   of  a   building  for  an  office  is  a  householder, 

3.  Amended  by  Code  Amdts.  1873—74,  p.  306,  within  the  meaning  of  this  section.  Somerset  etc. 
(1)    changing,   in   subd.    1,    (a)    the   words    "shall  Savings  Bank  v.  Huyck,  33  How.  Pr.  323. 

§  495.  Justification  of  bail.  For  the  purpose  of  justification,  each  of  the 
bail  must  attend  before  the  judge  or  county  clerk,  at  the  time  and  place 
mentioned  in  the  notice,  and  may  be  examined  on  oath  on  the  part  of  the 
plaintiff,  touching  his  sufficiency,  in  such  manner  as  the  judge  or  clerk,  in 
his  discretion,  may  think  proper.  The  examination  must  be  reduced  to  writ- 
ing, and  subscribed  by  the  bail,  if  required  by  the  plaintiff. 

Justification  before  court  commissioner.    Ante,  of  negotiable  promissory  notes,  and  the  evi- 

§  2o9,  subd.  3.  dence  tends  to  show  that  these  notes  were 

Legislation  8  495.     Enacted  March  11,  1873;  ^^^de    to    enable    the    sureties    to    justify, 

based    on    Practice    Act,   §  89    (New    York    Code,  .                                      .                             ■'            -^  ' 

§  195),  which  had  (1)  the  word  "shall"  instead  there  IS  a  failure  to  justify.    Mokelumne 

of    "must,"    before    "attend"    and    before    "be    re-  Hill   etc.   Mining   Co.   V.   Woodbury,    10    Cal. 

duced,"  and  (2)  the  word  "county"  before  "clerk,  288 
in  his." 

Failure   of   sureties   to   justify.     Where  code  COMMISSIONERS'  NOTE.     This  kind 

sureties   refuse   to   answer   pertinent   ques-  ^oPrTV-i'  immaterial  (l  Till    &  Shear.  Prac. 

■,,,.,          ^,          '-             ^         ,  586);    but   It  must  be  in  the  party  s   own  right, 

tions,  and  to  disclose  the  names  of  makers  2  Chit.  97. 

§  496.  Allowance  of  bail.  If  the  judge  or  clerk  find  the  bail  sufficient, 
he  must  annex  the  examination  to  the  undertaking,  indorse  his  allowance 
thereon,  and  cause  them  to  be  filed,  and  the  sheriff'  is  thereupon  exonerated 
from  liability. 

Court     commisBionera,    powers     of,    as   to  bail.  cation.      The    justification    is    not    complete    until 

Ante,  i  259,  subd.  3.  the    judge     has     indorsed    his    allowance    on     the 

,      ,  ,     ,  „„       T^  ,    ,,       L  ^o^r,  undertaking,   and  caused   it   to  be  filed.     O'Neil  v. 

Legislation  8  496.      Enacted   March    11,    1873;  Uurkee,    12    How.    Pr     94;    Overill    v.    Durkee,    2 

basfd    on    Pra<tice    Act,   §   90   (New    York    Code,  j^^^^   p^   3g3 

§  196),  which  had    (1)   the  word  "shall"  instead  2.' Fraud  in  Justification.    In  Brown  v.  Gillies, 

of  "must,"   before  "annex,"    (2)   the  word  "shall  i    chit.    372,    an   order   for   the   allowance   of   bail 

instead  of  "is,     after     sheriff,     and  (3)   the  word  ^^g    discharged,   upon   it   appearing   that    the   bail 

"be"  before  "exoneratea."  jiad    perjured    himself    on    his    justification.     See 

CODE    COMMISSIONERS'    NOTE.      1.   Justifl-  also   Gould  v.   Berry,    1   Chit.   143. 


473  DEPOSIT  OF  MONEY — APPLIED  HOW — SnERIFF  LIABLE.         §§  497-501 

§  497.  Deposit  of  money  with  sheriff.  The  defendant  may,  at  the  time 
of  his  arrest,  instead  of  giving  bail,  deposit  with  the  sheriff  the  amount  men- 
tioned in  the  order.  In  ease  the  amount  of  the  bail  be  reduced,  as  provided 
in  this  chapter,  the  defendant  may  dei)Osit  such  amount  instead  of  giving 
bail.  In  either  case  the  sheriff  must  give  the  defendant  a  certificate  of  the 
deposit  made,  and  the  defendant  must  be  discharged  from  custody. 

Legislation  g  497.      Enacted    March    11,    1873;  tween   the   plaintiff  and   the   defendant,   is   consid- 

based    on    I'ractice    Act,   §  91    (New    York    Code,  ered    the    property    of     the     latter.      Hermann     v. 

§197),   which  had    (1)    the  word    "shall"   instead  Aaronson.   :i   Abb.   Pr.    (N.   S.)    389;    34   How.   Pr. 

of  "must,"   in  both  instances,   and    (2)    the   words  272;    8   Abb.   Pr.    ( N.   S.)    155.      Money  deposited 

"out  of"   instead  of  "from,"   before  "custody."  by  a  third  party  becomes  the  property  of  the  de- 

CODE  COMMISSIONERS'  NOTE.      Money  de-        ^^"'^''"*-    ^''^'''  ^-  ^^«'"*'"'  ^  ^^^-  ^'-  '^^- 
posited   is  in   the   custody   of   the   law,   and,   as  be- 

§498.  Payment  of  money  into  court  by  sheriff.  The  sheriff  must,  imme- 
diately after  the  deposit,  pay  the  same  into  court,  and  take  from  the  clerk 
receiving  the  same  two  certificates  of  such  payment,  the  one  of  which  he 
shall  deliver  to  the  plaintiff's  attorney,  and  the  other  to  the  defendant.  For 
any  default  in  making  such  payment,  the  same  proceedings  may  be  had  on 
the  official  bond  of  the  sheriff,  to  collect  the  sum  deposited,  as  in  other  cases 
of  delinquency. 

Sheriff.      Penalty   for  non-payment.    Pol.  Code,  of   "must,"   in  the  first   line,    and    (2)    the  words 

§4161.  "deliver    or    transmit    to    the    plaintiff    or    his    at- 

_      .  ,     .       „  ^„„       .,^  ^   ,,       ,     ,,     ^„.v«  torney"     instead    of    "deliver    to    the    plaintiff's 

Legislation  §  498.      Enacted  March   11,   1873;  attorney" 
based    on    Practice    Act,   §  92   (New    York    Code, 
§  198),  which  had    (1)    the  word   "shall"   instead 

§  499,  Substituting  bail  for  deposit.  If  money  is  deposited,  as  provided 
in  the  two  last  sections,  bail  may  be  given  and  may  justify  upon  notice,  at 
any  time  before  judgment;  and  on  the  filing  of  the  undertaking  and  justifi- 
cation with  the  clerk,  the  money  deposited  must  be  refunded  to  the  defend- 
ant. 

Legislation  §  499.     Enacted  March  11,    1873;  CODE  COMMISSIONERS'  NOTE.    Hermann  v. 

based    on    Practice    Act,    §  93    (New    York    Code,  Aaronson,   34   How.   Pr.   27'J:   3   Abb.  Pr.    (N.   S.) 

§  199),  which  had   (1)   the  word  "be"  instead  of  389;   8  Abb.  Pr.   (N.   S.)    155;   Salter  v.  Weiner, 

"is,"   in  the   first  line,    and    (2)    the   words   "shall  6  Abb.   Pr.    191. 
be  refunded  by   such  clerk  to  the  defendant"   in- 
stead of  "must  be  refunded  to  the  defendant." 

§  500.  Money  deposited,  how  applied  or  disposed  of.  "Where  money  has 
been  deposited,  if  it  remain  on  deposit  at  the  time  of  the  recovery  of  a  judg- 
ment in  favor  of  the  plaintiff,  the  clerk  must,  under  the  direction  of  the 
court,  apply  the  same  in  satisfaction  thereof;  and  after  satisfying  the  judg- 
ment, refund  the  surplus,  if  any,  to  the  defendant.  If  the  judgment  is  in 
favor  of  the  defendant,  the  clerk  must,  under  like  direction  of  the  court, 
refund  to  him  the  whole  sum  deposited  and  remaining  unapplied. 

Legislation  §  500.      Enacted    March   11,    1873;  plied  on  any  judgment  he  may  obtain.    Hermann 

based    on    Practice    Act,   §  94    (New    York    Code,  v.    Aaronson,    3    Abb.    Pr.    ( N.    S.)    389;    34   How. 

§200),    which    had    (1)    the    words    "shall   have"  Pr.  272;    8  Abb.   Pr.    (N.  S.)    155.      If  the  money 

instead   of   "has,"   in  the   first   line,    (2)    the   word  deposited    is    lost,    stolen,    or    embezzled,    without 

"shall"    instead   of   "must,"    after    "the   clerk,"    in  any   act    of   the    plaintiff   contributing    to    that    re- 

Ooth  instances,    (3)    the  word   "shall"  before   "re-  suit,  the  loss  is  that  of  the  depositor,  as  between 

fund,"    and    (4)    the   word   "be"    instead    of    "is,"  him  and  the  plaintiff.    Parsons  v.  Travis,   5  Duer, 

after  "If  the  judgment."  650.    See  also  De  Peyster  v.  Clarkson,  2  Wend. 

CODE   COMMISSIONERS'  NOTE.      The  plain-         '^' 
tiff  is  entitled   to   have   the   money   deposited   ap- 

§  501.  Sheriff,  when  liable  as  bail,  and  his  discharge  from  liability.  If, 
after  being  arrested,  the  defendant  escape  or  is  rescued,  the  sheriff  is  liable 
as  bail;  but  he  may  discharge  himself  from  such  liability  by  the  giving  [of] 
bail  at  any  time  before  judgment. 

Liability  of  sheriff  permitting —  Legislation  g  501.      Enacted  March   11,    1873; 

1.  Rescue.      See  Pol.  Code,'§§  4164,  4165.  based    on    Practice    Act,   §  95    (New    York    Code, 

2.  Escape.      See  Pol.  Code,  §§  4163,  4165.  §201),  which  had   (1)    the  word  "be"  instead  of 


§§  502-509  CLAIM    AND   DELIVERY    OF    PERSONAL    PROPERTY.  474 

"is,"  before  "rescued,"  (2)  the  words  "sliall  him-  of    the    judgment    in    the    original    action    is    the 

self  be"   instead  of   "is,"   before   "liable   as  bail,"  measure    of    dama?es    in    an    action     against    the 

and    (3)    the  words   "and  justification  of"   before  sheriff.      His    liability    is    tliat    of    bail    who    have 

"bail  at  any  time."  justified.     Gallarati    v.    Orser,    4    Bosw.    94;     27 


CODE  COMMISSIONERS'  NOTE.     The  amount 


N.  Y.  324. 


§  502.  Proceedings  on  judgment  against  sheriff.  If  a  judgment  is  recov- 
ered against  the  sheriff  upon  his  liability  as  bail,  and  an  execution  thereon 
is  returned  unsatisfied  in  whole  or  in  part,  the  same  proceedings  may  be  had 
on  his  official  bond,  for  the  recovery  of  the  whole  or  any  deficiency,  as  in 
other  eases  of  delinquency. 

Legislation  §  502.  Enacted  March  11,  1872;  CODE  COMMISSIONERS'  NOTE.  The  sure- 
based  on  Practice  Act,  §  96  (New  York  Code,  ties  on  the  official  bond  of  the  sheriff  are  liable 
§  202),  which  had  the  word  "be"  instead  of  "is,"  for  any  default  of  the  sheriff  as  bail.  People  v. 
in  both  instances.  Dikeman,  4  Keyes,  93. 

§  503.    Motion  to  vacate  order  of  arrest  or  reduce  bail.     Affidavits  on 

motion.  A  defendant  arrested  may,  at  any  time  before  the  trial  of  the  ac- 
tion, or  if  there  be  no  trial,  before  the  entry  of  judgment,  apply  to  the  judge 
who  made  the  order,  or  the  court  in  which  the  action  is  pending,  upon  rea- 
sonable notice,  to  vacate  the  order  of  arrest  or  to  reduce  the  amount  of 
bail.  If  the  application  be  made  upon  affidavits  on  the  part  of  the  defend- 
ant, but  not  otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or 
other  proofs,  in  addition  to  those  on  which  the  order  of  arrest  was  made. 

Legislation  §  503.  1.  Enacted  March  11,  1873;  CODE  COMMISSIONERS'  NOTE.  A  party, 
based  on  Practice  Act,  §  97  (New  York  Code,  once  arrested  and  discharged,  cannot  again  be  ir- 
§§  204,  205),  which  had  the  words  "to  the  plain-  rested  in  the  same  action.  McGilvery  v.  More- 
tiff"   after  "reasonable  notice."  head,  2   Cal.   607.      If  the  process,   though  proper 

2.  Amended  by  Code  Amdts.  1873-74,  p.  306,  in  form,  has  been  issued  in  an  improper  case,  the 
(1)  substituting  for  "justification  of  bail"  the  party  will  be  discharged.  Soule  v.  Hay  ward,  1 
words  "trial  of  the  action,  or  if  there  be  no  trial,  Cal.  345.  On  an  order  to  show  cause  why  the 
before  the  entry  of  judgment,"  and  (2)  changing  arrest  of  a  party,  made  on  an  allegation  of  fraud, 
"is"  to  "be,"  after  "If  the  application,"  this  should  not  be  vacated,  the  question  of  fact  in- 
latter  being  a  restoration  to  the  original.  volved  must   be   decided,    like   any   other   question 

__   ^.         ^  .  .  .•  .  J.  of  fact,   upon   the   preponderance   of  the   evidence. 

Motion   to   vacate.      A    motion    to    vacate  Southworth   v.   Resing,    3    Cal.   378.      The   defend- 

an  arrest  is  tried  like  auy  other  fact,  and  ant,   by  putting  in  bail  and  neglecting  to  move 

ninst    hp    dpfided    bv    the    weight    of    testi-  ^'^   discharge,   waives   all  previous   irregularities, 

must    oe   aeciaeu    oy   tne   -neignt   oi    resii  ^atoon  v.  Eder,  6  Cal.  57. 
mouy.    boutnwortn  v.  Kesiug,  3  Lai.  61 1. 

§  504.  When  the  order  vacated  or  bail  reduced.  If,  upon  such  applica- 
tion, it  appears  that  there  was  not  sufficient  cause  for  the  arrest,  the  order 
must  be  vacated;  or  if  it  appears  that  the  bail  was  fixed  too  high,  the 
amount  must  be  reduced. 

Legislation  8  504.  Enacted  March  11,  1873;  Second  arrest  prohibited.  Where  a  party- 
based  on  Practice  Act,  §  98,  v.-hich  read:  "If  upon  j^  once  bppn  flrrps;tprl  sinrl  rUer.lT)r„.i,l  \,a 
such  application  it  shall  satisfactorily  appear  that  '^^^  °^J^l  °®^^  arrebted  and  discharged,  he 
there  was  not  sufficient  cause  for  the  arrest,  the  cannot  be  arrested  again  m  the  same  ac- 
order  shall  be  vacated;  or  if  it  satisfactorily  ap-  tion.  McGilvery  V.  Morehead,  2  Cal.  607. 
pear  that  the  bail  was  fixed  too  high,  the  amount  ' 
Ehall  be  reduced." 

CHAPTER  11. 

CLAIM  AND  DELIVEEY  OF  PERSONAL  PROPERTY, 

5  509.     Delivery    of    personal    property,    when    it  §515.  Justification  of  defendant's  sureties. 

may  be  claimed.  §516.  Qualification  of  sureties. 

S  510.     Affidavit  and  its  requisites.  §  517.  Property,    how    taken    when    concealed    in 

%  511.     Requisition  to  sheriff  to  take  and  deliver  building  or  inclosure. 

the  property.  §518.  Property,  how  kept. 

§  512.     Security  on  the  part  of  the  plaintiff,   and  §  519.  Claim  of  property  by  third  person. 

proceedings  in  serving  the  order.  §  520.  Notice   and    affidavit,   when   and   where    to 

J  513.     Exception     to     sureties     and     proceedings  be  filed. 

thereon,  or  on  failure  to  except.  §521.  Protiction    of    plaintiff    in    possession    of 

5  514.     Defendant,  when  entitled  to  redelivery.  property. 

§  509.     Delivery  of  personal  property,  when  it  may  be  claimed.     The 

plaintiff  in  an  action  to  recover  the  possession  of  personal  property  may,  at 
the  time  of  issuing  the  summons,  or  at  any  time  before  answer,  claim  the 
delivery  of  such  property  to  liiiu  as  provided  in  this  chapter. 


475 


NATURE  AND  ELEMENTS  OF  REMEDY. 


509 


Judgment.    Post,  §§  G27,  067. 

Verdict,  in  actions  for  recovery  of  speciflc  per- 
•%onalty.    Post,  §  (i'J7. 

Sections  made  applicable  to  Justice's  court. 
Post,  §  869. 

Legislation  §  509.  Enacted  March  11,  1873; 
To-onactment  of  Practice  Act,  $  99  (New  York 
■Code,  §  206). 

Nature  and  elements  of  remedy.     This 
chapter  provides  only  an  auxiliary  remedy, 
where   the   plaintiff   claims   immoiliate   de- 
livery of  the  property  at  the  time  of  the 
■commencement  of  the  action:  it  has  no  ap- 
plication in  the  ordinary  action  to  recover 
personal  property,  or  its  value,  where  the 
-auxiliary   remedy   is   not   invoked.    Faulk- 
ner V.  First  Nat.   Bank,   130  Cal.   258;   62 
Pac.    463.     Claim    and    delivery    is    a   pos- 
sessory action:   it  is  the  lineal  descendant 
■of  the  common-law  action  of  replevin,  with 
the    scope    of    its    application    greatly    en- 
larged,   but    the    essential    object    of    the 
action   remains   the   same,   namely,   to   en- 
force  the   plaintiff's   right   to   the   present 
possession  of  chattels,  as  against  a  defend- 
ant who  unlawfully  detains  them,  and  to 
recover   their   value    if    possession    cannot 
be    had,    together    with    damages    for    the 
•detention.    Hall  v.  Susskind,  109  Cal.  203; 
41    Pac.    1012.     While    the   proceedings   in 
<;laim   and   delivery   are    in    some   respects 
analogous  to  those  in  replevin,  yet  certain 
features  which  distinguished  the  practice 
in    replevin    have    not    survived;    thus,    in 
replevin   the   denial   or   general    issue   was 
non  cepit,  which  simply  denied  the  taking, 
and  admitted  title  in  the  plaintiff;  so,  non 
detinet  put  in  issue  only  the  detention;  a 
justification  was  where  the  defemhiut  was 
enabled  to  show  that  the  plaintiff  had  no 
property  in  the  goods,  and  that  they  were 
the    property    of    the    defendant    or    some 
third   person;   there   was  a  supposed  tech- 
nical  necessity   to   allege   property   in   the 
defendant    or    a    third    person,    since    the 
general    issue    did    not   question    the    title 
of    the    plaintiff;    but,    by    our    system    of 
pleading,  the  defendant  may  fully  justify 
under   the   general   denial,   and   if   he  can- 
not  deny   the   plaintiff's  property   without 
affirmatively    asserting    property    in    him- 
self   or   some   third   person,    there    can    be 
no  general  denial  of  the  averments  of  the 
complaint  in  this  class  of  cases,  although 
this  code  expressly  provides  there  may  be; 
and,   also    under   our   system,    the    general 
denial  puts  in  issue  the  plaintiff's  right  to 
the  possession  of  the  property' ;  and  if  he 
was    not    entitled    to    possession    when    he 
commenced  his  action,  but  it  has  been  de- 
livered to   him  by  means   of  an  ancillary 
writ,  it  should  be  restored  to  the  defend- 
ant,  from    whom    it    was    taken.     Pico    v. 
Pico,  56   Cal.  -153.     There  is  no  action   of 
"claim    and    delivery":    under    our   system, 
there    is    only    one   form    of   action,    which 
has  no  name;  so  that  an  action  cannot  be 
here    defeated,    as    it   could    have    been    at 
.common  law,  because  not  properly  named 


Faulkner  v.  First  Nat.  Bank,  130  Cal.  258; 
G2  Pac.  463.  Claim  and  <lelivery  has  two 
aspects:  one  is  a  suit  to  recover  specific 
personal  property;  the  other  is  a  suit  to 
recover  a  money  demand.  J.  Dewing  Co. 
v.  Thomi>son,  19  Cal.  App.  85;  124  Pac. 
1035.  The  issue  and  sole  question  in  claim 
and  delivery  is  the  right  to  the  possession 
at  the  time  of  the  commencement  of  the 
action  (Tuohy  v.  Linder,  144  Cal.  790;  78 
Pac.  233),  and  the  suit  determines  only 
the  right  of  possession.  Liver  v.  Mills, 
155  Cal.  459;  101  Pac.  299.  Claim  and 
delivery  is  a  statutory  remedy  provided 
to  enable  one  to  recover  the  possession 
of  personal  property  wrongfully  detained, 
with  an  alternative  remeily  if  possession 
cannot  be  had  (Riciotto  v.  Clement,  94 
Cal.  105;  29  Pac.  414);  and,  considered 
as  a  remedy,  it  is  at  least  commensurate 
with  the  action  of  detinue  at  common  law. 
McLaughlin  v.  Piatti,  27  Cal.  4r>l.  The 
right  to  the  immediate  and  exclusive  pos- 
session of  specific  property  is  the  gist  of 
the  action,  and  the  plea  of  another  action 
pending,  for  the  price  of  the  same  prop- 
erty, is  not  a  bar  (McCormick  v.  Gross, 
135  Cal.  302;  67  Pac.  766;  Parke  &  Lacy 
Co.  V.  Vv'hite  River  Lumber  Co.,  101  Cal. 
37;  35  Pac.  442;  Kolt  Mfg.  Co.  v.  Ewing, 
109  Cal.  353;  42  Pac.  435);  and  the  plain- 
tiff may  or  may  not,  at  his  election,  seek 
the  immediate  delivery  of  the  property. 
Wellman  v.  English,  38  Cal.  583.  The  in- 
vestigation is  confined  to  the  property 
mentioned  in  the  complaint;  other  prop- 
erty cannot  be  brought  into  controversy 
by  the  answer  (Hall  v.  Susskind,  109  Cal. 
203;  41  Pac.  1012);  nor  can  the  defend- 
ant, in  his  answer,  allege  that  the  plain- 
tiff has  taken  from  him  other  property 
than  that  mentioned  in  the  complaint,  and 
aslv  or  obtain  judgment  for  its  return. 
Lovensohn  v.  Ward,  45  Cal.  8.  In  re- 
plevin, the  property  remains  in  the  cus- 
tody of  the  law,  and  all  parties  must  take 
notice;  the  unsuccessful  party  may  de- 
liver the  property,  and  discharge  himself 
from  so  much  of  the  judgment  as  is  made 
up  by  the  assessed  value,  because  the  suit 
is  about  that  specific  property,  and  be- 
cause the  title  is  not  affected  by  the  re- 
plevin bond.  Hunt  v.  Robinson,  11  Cal. 
262.  Where  the  plaintiff's  claim  is  based 
upon  the  possession  and  the  right  to  the 
possession,  by  the  mutual  contract  of  the 
parties,  and  a  wrongful  taking  of  the  prop- 
erty from  him  by  the  defendant,  the  ques- 
tion of  the  contract,  being  one  in  restraint 
of  trade,  will  not  be  considered:  such  ques- 
tion cannot  arise  in  restoring  the  parties 
to  the  position  in  which  they  had,  by 
their  contract,  placed  themselves.  Cali- 
fornia Cured  Fruit  Ass'n  v.  Stelling,  141 
Cal.  713;  75  Pac.  320.  Proceedings  in 
claim  and  deli\ery  cannot  be  made  the 
means  of  determining  the  right  to  the  jios- 
session    of    or    to    purchase    public    lauds 


§509 


CLAIM  AND  DELIVERY   OF  PERSONAL  PROPERTY. 


476 


Page  V.  Fowler,  28  Cal.  605.  The  plain- 
tiff cannot  treat  the  defendant  as  if  in 
possession  of  property,  and  then,  on  the 
trial,  recover  judgment  against  him  on  the 
ground  that  he  was  not  in  possession  of 
the  jiroperty.  Hawkins  v.  Eoberts,  45  Cal. 
38.  A  person  having  an  interest  in  prop- 
erty may  intervene  in  an  action  already 
instituted  to  recover  the  same.  Joshua 
Hendy  Machine  Works  v.  Dillon,  135  Cal. 
9;  66  Pac.  960.  An  answer  praying  for 
the  return  of  property  replevied  seeks  af- 
firmative relief,  and  prevents  a  dismissal 
bv  the  plaintiff.  Acock  v.  Halsey,  90  Cal. 
215;  27  Pac.  193. 

Claim  and  delivery,  and  trover,  distin- 
guished. The  distinction  between  jiroceed- 
ings  in  claim  and  delivery  to  recover 
possession  of  property  or  the  value  thereof 
in  case  delivery  cannot  be  had,  and  ac- 
tions to  recover  damages  for  the  wrongful 
conversien  of  property,  is  just  as  broad 
as  that  between  the  common-law  actions 
of  detinue  and  trover:  one  lies  for  the  re- 
covery of  the  proiierty  itself,  with  dam- 
ages for  wrongful  detention;  the  other, 
for  the  recovery  of  damages  for  the  wrong- 
ful conversion  of  it.  Kichanls  v.  Morey, 
133  Cal.  437;  65  Pac.  886;  Kelly  v.  Mc- 
Kibben,  54  Cal.  192.  The  action  for  dam- 
ages for  the  conversion  of  property  and 
that  for  the  recovery  of  specific  property 
are  distinct:  the  relief  sought  in  claim 
and  delivery  cannot  be  had  from  the  de- 
fendant, unless  he  is  then  possessed  of 
the  property,  which  fact  constitutes  an 
essential  element  in  the  plaintiff's  cause 
of  action.  Eiciotto  v.  Clement,  94  Cal.  105; 
29  Pac.  414. 

Personalty,  what  is.  By  the  severance 
and  removal  of  fixtures,  they  are  con- 
verted into  personalty,  and  thereby  made 
subject  to  replevin.  McNally  v.  Connolly, 
70  Cal.  3;  11  Pac.  320. 

Property  severed  from  freehold.  Wood 
cut  from  the  plaintiff's  land,  by  one  in 
possession  without  color  of  title,  may  be 
recovered  by  proceedings  in  claim  and  de- 
livery: the  title  to  the  property  is  not 
affected  by  severance  from  the  freehold. 
Kimball  v.  Lohmas,  31  Cal.  154.  The  rule 
that  crops  cut  from  land  held  in  adverse 
possession  cannot  be  recovered  in  replevin 
does  not  apply  to  a  mere  trespasser  who 
casually  or  temporarily  enters  for  the  pur- 
pose of  severing  or  removing  the  property 
attached  to  and  forming  a  part  of  the 
realty:  such  trespasser  does  not  hold  ad- 
versely. Page  V.  Fowler,  28  Cal.  605. 
Crops  raised  upon  land,  by  one  holding 
by  adverse  possession,  cannot  be  recovered 
in  proceedings  in  claim  and  delivery  by 
the  true  owner  of  the  land.  Pennybecker 
V.  McDougal,  46  Cal.  661.  A  trespasser 
or  mere  intruder  entering  the  premises 
and  removing  the  crops  cannot  raise  the 
question  of  title  with  the  owner  so  as  to 
defeat    proceedings    in    rejilevin    for    the 


crops.  Halleck  v.  Mixer,  16  Cal.  574.  An 
action  by  a  prior  possessor  will  not  lie  for 
hay  cut  from  public  land  by  one  in  pos- 
session thereof,  claiming  title  as  against 
all  but  the  United  States,  and  proceeding 
and  endeavoring  to  perfect  his  pre-emption, 
claim  thereto.  Page  v.  Fowler,  28  Cal.  605. 
Crops  raised  by  one  in  possession  of  realty 
as  surviving  partner,  under  a  null  and  void 
agreement  with  the  deceased  partner  that 
a  patent  was  to  be  procured  and  held  for 
the  benefit  of  the  copartnership,  cannot 
be  recovered  in  proceedings  in  claim  and 
delivery  by  the  heirs  of  the  deceased  part- 
ner. Groome  v.  Almstead,  101  Cal.  425; 
35  Pac.  1021.  A  plaintiff,  out  of  posses- 
sion of  real  property,  cannot  sue  for  tim- 
ber severed  from  the  freehold,  when  the 
defendant  is  in  possession  of  the  premises 
from  which  the  property  was  severed,  hold- 
ing them  adversely,  in  good  faith,  under 
claim  and  color  of  title:  the  personal  ac- 
tion cannot  be  made  the  means  of  liti- 
gating and  determining  the  title  to  real 
property  as  between  conflicting  claimants; 
but  this  rule  does  not  exclude  the  proof 
of  title  on  the  part  of  the  plaintiff  in 
other  cases,  for  it  is  upon  such  proof 
that  the  right  of  recovery  rests;  it  is  be- 
cause the  plaintiff  owns  the  premises,  or 
has  the  right  to  their  possession,  that  he  is 
entitled  to  the  chattel  which  is  severed, 
and  that  must  be,  in  the  first  instance, 
established.  Halleck  v.  Mixer,  16  Cal.  574. 
Where  the  defendant  is  in  the  actual  pos- 
session of  land,  in  good  faith  claiming  title 
thereto,  the  plaintiff,  claiming  to  be  the 
true  owner  thereof,  cannot,  by  proceedings 
in  claim  and  delivery,  secure  the  posses- 
sion of  property  severed  by  the  defend- 
ant from  the  land:  title  to  land  cannot 
be  litigated  in  such  proceedings.  Hines  v. 
Good,  128  Cal.  38;  79  Am.  St.  Rep.  22;  60 
Pac.  527.  Where  the  property  sued  for  in 
claim  and  delivery  was  severed  from  the 
plaintiff's  land,  he  can  show  his  owner- 
ship of  the  property  by  proving  ownership 
of  the  land,  unless  the  defendant  has,  and 
had  when  the  property  was  severed  from 
the  freehold,  adverse  possession  of  the 
land,  claiming  title  thereto.  Martin  v. 
Thompson,  62  Cal.  618;  45  Am.  Rep.  663; 
Hines  v.  Good,  128  Cal.  38;  79  Am.  St. 
Rep.  22;  60  Pac.  527. 

Title  or  right  to  possession  of  plaintiff. 
The  plaintiff,  in  claim  and  delivery,  can- 
not recover,  if  he  is  not  and  never  has 
been  the  owner  or  entitled  to  the  posses- 
sion of  the  property  sought  to  be  recov- 
ered (Cardinell  v.  Bennett,  52  Cal.  476; 
Fredericks  v.  Tracy,  98  Cal.  658;  33  Pac. 
750;  Keech  v.  Beatty,  127  Cal.  177;  59 
Pac.  837) :  he  must  be  entitled,  at  the  time 
the  action  is  commenced,  to  the  immediate 
and  exclusive  possession  of  the  property 
(People's  Sav.  Bank  v.  Jones,  114  Cal. 
422;  46  Pac.  278),  through  some  general 
or    special    property    therein;    but    actual 


477 


POSSESSION  OF  PLAINTIFF — TENANTS  IN  COMMON,  ETC. 


§509 


prior  possession  is  not  essential.  Garcia 
V.  Gunn,  119  Cal.  315;  51  Pac.  684.  Re- 
plevin lies  for  all  goods  and  chattels  un- 
lawfully taken  or  detained,  and  may  bo 
brought  whenever  one  jierson  claims  per- 
sonal property  in  the  possession  of  an- 
other, whether  the  claimant  over  had 
possession  or  not,  and  whether  his  jirop- 
erty  in  the  goods  is  absolute  or  qualified, 
provided  he  has  the  right  to  the  posses- 
sion. Lazard  v.  Wheeler,  22  Cal.  139. 
Mere  possession  is  sufficient,  as  against  a 
trespasser,  to  give  the  right  of  action. 
Laughlin  v.  Thompson,  76  Cal.  287;  18 
Pac.  330.  An  after-acquired  title  is  not 
sufficient.  People's  Sav.  Bank  v.  Joneg, 
114  Cal.  422;  46  Pac.  278.  Executors  can 
institute  proceedings  in  replevin,  to  re- 
cover property  of  the  estate,  under  the 
general  authority  conferred  upon  them  by 
statute.  Halleck  v.  Mixer,  16  Cal.  574.  A 
receiver  cannot  maintain  the  action,  to  re- 
cover property,  which  has  not  come  into 
his  possession,  from  a  party  to  whom  it 
has  been  transferred  by  the  debtor,  of 
whose  property  he  takes  charge,  or  from 
the  sheriff  holding  it  under  process.  Tib- 
bets  V.  Cohn,  116  Cal.  365;  48  Pac.  372; 
Bishop  V.  McKilliean,  124  Cal.  321;  71 
Am.  St.  Rep.  68;  57  Pac.  76.  An  owner 
of  land,  who,  under  a  contract  with  his 
tenant,  is  to  receive  a  portion  of  the  crop, 
and  to  retain  sufficient  of  the  remainder 
as  security  for  his  unj)aid  claims  against 
the  tenant,  may  recover  in  claim  and  de- 
livery against  a  mortgagee  of  the  tenant, 
who  removes  the  crop  without  paying  or 
tendering  the  amount  due  the  owner. 
Tuohy  V.  Liuder,  144  Cal.  790;  78  Pac.  233. 
Crops  raised  upon  land  by  one  in  posses- 
sion of  the  realty  as  a  surviving  partner, 
under  a  null  and  void  agreement  with  the 
deceased  partner,  cannot  be  recovered,  in 
claim  and  delivery,  by  the  heirs  of  the  <le- 
ceased  partner.  Groome  v.  Almstead,  101 
Cal.  425;  35  Pac.  1021.  A  crop  of  fruit, 
delivered  to  an  agent,  under  a  contract 
for  the  possession  thereof  for  the  purposes 
of  inspection,  packing,  and  sale,  may  be 
recovered  by  the  agent  in  this  form  of 
action,  where  it  was  wrongfully  retal^en 
by  the  principal.  California  Cured  Fruit 
Ass'n  v.  Stelling,  141  Cal.  713;  75  Pac. 
320.  Upon  the  abandonment  of  a  build- 
ing contract,  the  owner  of  materials  fur- 
nished may  recover  them,  or  their  value. 
Steiger  e'tc.  Pottery  Works  v.  Sonoma,  9 
Cal.  App.  698;  100  Pac.  714.  Where  goods 
are  to  be  paid  for  upon  their  delivery  by 
a  common  carrier,  and  they  are  delivered 
but  are  not  paid  for,  the  carrier  has  the 
right  at  once  to  remove  them,  and  if  pre- 
vented, may  sue  in  claim  and  delivery. 
Martland  v.  Bekins  Van  etc.  Co.,  19  Cal. 
App.  283;  125  Pac.  759.  The  allegation 
that  the  plaintiffs  were  the  joint  owners 
of  the  property  sued  for  is  sustained  by 
proof  that  the  plaintiffs  owned  the   prop- 


erty as  partners,  part-owners,  or  as  ten- 
ants in  common,  ami  that  their  resi)ective 
interests  therein  were  very  unequal.  Pel- 
berg  V.  Gorham,  23  Cal.  349.  Claim  and 
delivery  lies  by  a  purchaser  at  an  execu- 
tion sale,  against  one  who  acquired  the 
property  from  the  plaintiff  by  fraud,  and 
who  therefore  took  no  title.  Sargent  v. 
Sturm,  23  ('a!.  350;  83  Am.  Dec.   118. 

Tenants  in  common.  A  tenant  in  com- 
mon of  i)ersonal  property  may  recover 
against  his  co-tenant,  who  takes  possession 
of  all  the  common  property  and  converts 
it  to  his  own  use,  in  an  action  in  the  form 
of  re])levin,  but  in  which  the  complaint 
contains  all  the  allegations  essential  in 
trover.  Schwartz  v.  Skinner,  47  Cal.  3. 
One  tenant  in  common  cannot  maintain 
replevin  against  his  co-tenant  for  part  of 
the  common  property.  Hewlett  v.  Owens, 
50   Cal.   474. 

Copartners.  One  partner  cannot  main- 
tain claim  and  delivery  against  his  coj»art- 
ner  for  partnership  property,  where  the 
right  of  .possession  is  equal.  Buckley  v. 
Carlisle,  2  Cal.  420;  Niroad  v.  Farnell,  11 
Cal.   App.   767;   106   Pac.  252. 

Allegations  of  title  or  right  to  posses- 
sion. The  allegation  of  ownership  or  right 
to  the  possession  at  the  time  of  the  com- 
mencement of  the  action  is  a  necessary 
and  essential  averment  of  the  complaint 
in  claim  and  delivery:  the  mere  allega- 
tion that  the  plaintiff  was  the  owner  and 
entitled  to  the  possession  of  the  goods  at 
a  time  prior  to  the  commencement  of  the 
suit,  with  no  averment  of  the  ultimate 
fact  that  he  was  the  owner  and  entitled 
to  the  possession  when  the  action  was 
commenced,  is  insufficient  (Vanalstine  v. 
Whelan,  135  Cal.  232;  67  Pac.  125;  Affier- 
bach  v.  McGovern,  79  Cal.  268;  21  Pac. 
837;  Fredericks  v.  Tracy,  98  Cal.  658;  33 
Pac.  750;  Holly  v.  Heiskell,  112  Cal.  174; 
44  Pac.  466;  Truman  v.  Young,  121  Cal. 
490;  53  Pac.  1073;  Bane  v.  Peerman,  125 
Cal.  220;  57  Pac.  885);  but  an  allegation, 
that,  on  a  day  named,  prior  to  the  com- 
mencement of  the  action,  the  plaintiff  was 
the  owner  and  in  the  possession  of  the 
property,  and  that  the  defendant,  on  that 
day,  without  the  plaintiff's  consent,  and 
against  his  will,  wrongfully  and  unlaw- 
fully, and  by  force,  came  into  possession 
of  said  property,  and,  in  effect,  that  it  was 
thus  taken  from  his  possession,  is  suffi- 
cient: the  obligation  to  restore,  created 
by  the  wrongful  act,  continues  until  it  is 
athrmatively  shown  to  have  been  extin- 
guished. Harris  v.  Smith,  132  Cal.  316; 
64  Pac.  409.  The  allegation  of  ownership 
and  the  right  to  j)ossession  is  sufficient: 
an  allegation  of  the  means  by  which  pos- 
session was  had  is  mere  surplusage. 
Conner  v.  Bludworth,  54  Cal.  635.  An 
allegation  of  the  particular  facts  entitling 
the  plaintiff  to  the  possession  of  the  prop- 
erty,   is    sufficient,    although    there    is    no 


§509 


CLAIM  AND  DELIVERY   OP  PERSONAL  PROPERTY. 


475 


general  allegation  that  the  plaintiff  is  the 
owner  and  entitled  to  the  possession  of 
the  property.  Visher  v.  Smith.  91  Cal.  260; 
27  Pac.  650.  The  facts  constituting  the 
plaintiff's  cause  of  action  are  those  which 
show  that  he  is  entitled  to  the  possession, 
and  that  the  defendant  wrongfully  with- 
holds the  property  from  him.  Eiciotto  v. 
Clement,  9-i  Cal.  105;  29  Pac.  414. 

Surplusage.  The  allegation  of  the  place 
where  the  property  was  taken  is  mere  sur- 
plusage: the  issue  formed  upon  it  is  im- 
material. Lay  V.  Neville,  25  Cal.  545.  An 
allegation  of  the  means  by  which  the 
plaintiff  obtained  possession  is  surplusage. 
Conner  v.  Bludworth,  54  Cal.  635.  The 
averment,  "unlawful  and  wrongful,"  as 
applied  to  the  entry  upon  the  premises 
and  the  taking  of  the  property,  may  be 
stricken  out  as  surplusage  (Halleck  v. 
Mixer,  16  Cal.  574) ;  but  the  allegation 
that  the  defendant  is  in  possession  of  the 
property  is  material  and  essential.  Eici- 
otto v. 'Clement,  94  Cal.  105;  29  Pac.  414. 
Where  the  facts  alleged  in  the  complaint 
are  sufBcient  to  show  conversion,  an 
additional  averment,  that  the  defendant 
"unlawfully  withholds  and  detains  the 
property,"  does  not  invalidate  the  judg- 
ment. Faulkner  v.  First  Nat.  Bank,  130 
Cal.  258;  62  Pac.  463;  Dennison  v.  Chap- 
man, 105  Cal.  447;  39  Pac.  61.  The  re- 
turn of  the  sheriff  is  proper  evidence  of 
the  possession  of  the  plaintiff,  and,  being 
of  record,  the  court  may  avail  itself  of  it 
in  determining  that  fact,  or  if  the  fact 
has  not  been  found,  in  determining  the 
right  of  the  defendant,  as  a  matter  of 
law,  to  a  judgment  for  its  return.  Hollen- 
bach  V.  Schnabel,  101  Cal.  312;  40  Am. 
St.  Eep.  57;  35  Pac.  872. 

Necessity  for  demand.  Demand  is  not 
necessary,  where  the  plaintiff  sets  up  title 
or  adverse  claim  to  the  property  sought 
to  be  recovered.  California  Cured  Fruit 
Ass'n  V.  Stelling,  141  Cal.  713;  75  Pac. 
320.  Where  possession  of  the  property  is 
originally  acquired  hy  a  tort,  no  demand, 
previous  to  the  institution  of  the  suit  for 
its  recovery,  is  necessary:  demand  is  only 
required  where  the  original  possession  is 
lawful,  and  the  action  relies  upon  unlaw- 
ful detention.  Paige  v.  O'Neal,  12  Cal. 
483;  Sargent  v.  Sturm,  23  Cal.  359;  83  Am. 
Dee.  lis.  Thus,  no  demand  is  necessary 
before  an  action  to  recover  fixtures  wrong- 
fully severed  and  removed  (McNally  v. 
Connolly,  70  Cal.  3;  11  Pac.  320);  or  to 
recover  goods  wrongfully  levied  upon  by 
a  sheriff  (Ledley  v.  Hays,  1  Cal.  160; 
Moore  v.  Murdock,  26  Cal.  514;  Boulware 
v.  Craddock,  30  Cal.  190;  Wellman  v.  Eng- 
lish, 38  Cal.  583);  or  to  recover  money 
seized  by  a  sheriff  as  the  property  of  an- 
other.   Sharon   v.  Xuuan,  63  Cal.  234. 

Pleading  demand.  Demand  and  refusal 
to  deliver  fiossession  must  be  averred  and 
proved,  where  the  prox)erty  came  lawfully 


into  the  hands  of  the  defendant.  Sargent- 
V.  Sturm,  23  Cal.  359;  83  Am.  Dec.  118  ^ 
Campbell  v.  .Tones,  38  Cal.  507;  Bacon  v- 
Eobson,  53  Cal.  399.  A  general  allegation 
of  demand  is  suflScient,  in  an  action 
against  an  oflScer  for  wrongfully  taking 
property  under  process;  and  if  the  form^ 
of  the  demand  does  not  comply  with  §  689, 
post,  the  defendant  may  traverse  the  alle- 
gations in  his  answer,  and  object  to  the 
proof  when  offered  at  the  trial:  the  pro- 
visions of  that  section  being  intended  for 
the  benefit  of  the  officer,  a  failure  to  com- 
ply therewith  is  a  matter  of  defense  to 
be  pleaded  by  him.  Brenot  v.  Eobinson, 
108  Cal.  143;  41  Pac.  37. 

Proof  of  demand.  Proof  of  demand  is 
excused  by  proof  of  any  circumstance 
which  would  satisfy  a  jury  that  the  de- 
mand would  have  been  unavailing;  as,  a 
refusal  by  the  defendant  to  listen  to  one, 
or  a  statement,  in  advance,  that  he  will 
not  deliver;  and  where  the  property  has 
come  rightfully  into  the  hands  of  the  de- 
fendant, a  demand  for  it,  and  a  refusal 
to  deliver,  are  evidence  of  conversion. 
Wood  V.  McDonald,  66  Cal.  546;  6  Pac. 
452.  Demand  and  refusal  to  deliver  pos- 
session must  be  averred  and  proved,  where 
the  property  came  lawfully  into  the  hands 
of  the  defendant.  Sargent  v.  Sturm,  23 
Cal.  359;  83  Am.  Dec.  118;  Bacon  v.  Eob- 
son,  53  Cal.  399.  Want  of  demand  need 
not  be  specially  pleaded  by  the  defendant: 
the  onus  is  on  the  plaintiff  to  show  afiirma- 
tively  the  proper  demand,  where  demand 
is  necessary.  Killey  v.  Scaunell,  12  Cal. 
73  Proof  of  a  demand  is  unnecessary, 
where  the  defendant  avers,  in  his  answer, 
that  had  one  been  made,  he  would  have 
refused  to  deliver  the  possession.  Wood 
v.  McDonald,  66  Cal.  546;  6  Pac.  452. 
An  instruction  that  the  plaintiff  cannot 
recover  without  proving  a  demand  on  the 
defendant,  is  erroneous,  where  the  de- 
mand is  admitted  by  the  answer.  Jones 
v.  Spears,  47  Cal.  20. 

Possession  of  defendant.  The  plaintiff 
cannot,  for  the  purpose  of  enabling  him 
to  sue  in  replevin,  aver  that  the  defend- 
ant is  in  possession  of  the  property,  and, 
on  the  trial,  recover  judgment  against  him. 
on  the  ground  that  he  was  not  in  posses- 
sion (Hawkins  v.  Eoberts,  45  Cal.  38);. 
nor  can  the  plaintiff  recover,  where  the 
defendant  did  not  have  possession  at  the- 
time  of  the  commencement  of  the  action. 
Keech  v.  Beatty,  127  Cal.  177;  59  Pac. 
837.  An  action  to  recover  possession  of 
personal  property  will  not  lie,  where,  at 
the  time  the  action  is  commenced,  the  de- 
fendant has  not  the  possession,  nor  the- 
power  to  deliver  it  in  satisfaction  of  a 
judgment  for  its  possession.  Eichards  v. 
Morey,  133  Cal.  437;  65  Pac.  886.  The  as- 
signee of  an  insolvent  cannot  maintain 
claim  and  delivery  against  his  assignor  for 
property    which    the    latter    never    owned,. 


479 


POSSESSION  OF  DEFENDANT — SALE — ANSWER. 


§509 


nor  had  possession  of,  nor  refused  to  de- 
liver. Martin  v.  Porter,  84  Cal.  470;  24 
Pac.  109.  A  bailee  is  liable  in  an  action 
of  detinue,  or  claim  and  delivery,  even 
though  he  parted  with  possession  of  the 
property  before  demand  and  suit  for  its 
recovery.  Faulkner  v.  First  Nat.  Bank,  130 
Cal.  258;  62  Pac.  463.  Claim  and  delivery 
does  not  lie  against  one  in  the  actual  pos- 
session of  property,  having  a  lieu  thereon 
dependent  upon  possession:  the  owner  must 
redeem  from  the  lien,  or  bring  an  action 
for  that  purpose.  Sutton  v.  Stephan,  101 
Cal.  545;  36  Pac.  706.  Where  the  defend- 
ant has  possession  of  the  property  at  the 
time  the  action  is  commenced,  he  cannot, 
by  subsequent  transfer  or  destruction  of 
the  property,  wholly  deprive  the  plaintiff 
of  relief:  an  alternative  judgment  for  the 
value  of  the  property  will  be  granted. 
Eiehards  v.  Morey,  133  Cal.  437;  65  Pac. 
886.  Where  the  defendant  had  the  right 
to  the  possession  at  the  time  suit  was  com- 
menced, but  it  passed  to  the  plaintiff  be- 
fore the  trial,  the  court  should  not  decree 
the  return  of  the  property  to  the  defend- 
ant, merely  that  it  might  be  again 
replevied  by  the  plaintiff.  Bolander  v.  Gen- 
try, 36  Cal".  105;  95  Am.  Dec.  162;  Pico  v. 
Pico,  56  Cal.  453;  Flinn  v.  Ferry,  127  Cal. 
648;  60  Pac.  434.  The  possession  of  prop- 
erty by  the  defendant,  a  warehouseman,  is 
sufficiently  shown  by  setting  out  the  ware- 
house-receipt issued  by  him,  with  the  alle- 
gation of  demand  and  refusal  to  deliver  the 
property.  Visher  v.  Smith,  91  Cal.  260;  27 
Pac.  650.  In  replevin,  where  the  plaintiff 
takes  the  property  at  the  commencement  of 
the  action,  and  the  defendant  prays  a  re- 
turn of  it,  and  is  entitled  to  the  possession 
at  the  commencement  of  the  action,  but  his 
right  has  ceased,  and  vested  in  the  plain- 
tiff before  trial,  the  judgment  should  leave 
the  property  in  the  plaintiff's  possession, 
but  award  costs  to  the  defendant.  O'Con- 
nor V.  Blake,  29  Cal.  312.  In  claim  and 
delivery  against  an  alleged  receiver,  it 
may  be  shown  that  he  wrongfully  seized 
possession  under  a  void  order  of  appoint- 
ment. Bibbj'  v.  Dieter,  15  Cal.  App.  45; 
113  Pac.  874.  Replevin  lies  against  a 
sheriff  for  money  taken  by  him  from  a 
safe,  where  the  same  was  segregated  from 
other  moneys  in  the  safe  at  the  time  of 
the  levy,  and  then  claimed  by  the  plaintiff. 
Griffith  V.  Bogardus.  14  Cal.  410.  Where 
the  plaintiff  in  replevin  established  title  by 
possession,  but  introduced  no  bill  of  sale, 
nor  any  evidence  tending  to  establish  a 
sale,  it  is  competent  for  the  defendant,  on 
cross-examination  of  a  witness  for  the 
plaintiff",  to  ask  in  whose  possession  the 
chattels  were  at  a  certain  period  anterior 
to  the  possession  proved  by  the  plaintiff, 
in  order  to  draw  from  him,  if  possible,  the 
fact  that  plaintiff's  possession  was  a  fraud 
to  hide  a  debtor's  property.  Thornburgh  v. 
Hand,  7  Cal.  554, 


Disposal  of  property  before  suit.  The 
amendment  of  the  coin|)laint,  so  as  to  con- 
vert an  action  of  replevin  into  one  of  con- 
version, may  be  allowed,  where  possession 
cannot  be  recovered  because  the  property 
had  been  disposed  of  before  the  action  was 
commenced,  and  the  plaintrff  did  not  know 
of  such  disposal.  Henderson  v.  Hart,  122 
Cal.  332;  54  Pac.  1110;  liiciotto  v.  Clement, 
94  Cal.  105;  29  Pac.  414. 

Rights  of  vendor  under  conditional  sale. 
The  vendee  in  a  conditional  sale  can  con- 
fer no  greater  rights  uiioii  a  purchaser  or 
a  mortgagee  than  he  himself  has;  and 
therefore  replevin  lies  by  the  vendor,  in 
such  sale,  against  the  purcliaser  or  the  mort- 
gagee of  the  vendee.  Lundy  Furniture  Co. 
V.  White,  128  Cal.  170;  79  Am.  St.  Kep.  41; 
60  Pac.  759.  An  action  lies  against  the 
second  vendee  of  a  conditional  sale  for  a 
breach  of  the  condition,  where  possession 
is  given  by  the  vendor  to  the  vendee  with 
the  express  stipulation  that  title  shall  not 
pass  until  the  conditions  are  performed. 
Putnam  v.  Lamphier,  36  Cal.  151.  A  ven- 
dor may  maintain  replevin  against  a  sheriff 
holding  property  under  attachment  against 
the  vendee,  where  the  vendor  retains  title 
under  a  conditional  sale,  and  at  the  time 
of  the  attachment  was  entitled  to  imme- 
diate possession.  Kellogg  v.  Burr,  126  Cal. 
38;  58  Pac.  306;  Rodgers  v.  Bachman,  109 
Cal.  552;  42  Pac.  448. 

Answer.  An  answer  denying  that  the 
defendant  ever  owned  or  had  possession  of 
the  property,  or  even  withheld  or  refused 
to  deliver  it,  raises  material  issues,  suffi- 
cient to  defeat  a  motion  for  judgment  on 
the  pleadings.  Martin  v.  Porter,  84  Cal. 
476;  24  Pac.  109.  The  plaintiff  is  entitled 
to  a  verdict  upon  the  complaint,  under  the 
instructions  of  the  court,  where  the  answer 
makes  no  issue  but  by  confession  and 
avoidance  and  the  defendant  offers  no  evi- 
dence in  support  of  such  defense.  Kuhland 
v.  Sedgwick,  17  Cal.  123.  Where  the  com- 
plaint avers  that  the  plaintiff  was  the 
owner  and  entitled  to  the  possession  of  the 
property  at  the  time  of  the  taking  by 
the  defendant,  an  answer  which  denies  this 
averment,  and  avers  that  at  that  time  the 
projierty  was  owned  and  possessed  by  a 
third  person,  does  not  set  up  new  matter; 
this  averment  is  only  a  form  of  denial  of 
the  plaintiff's  ownership  and  rights  of  pos- 
session. Woodworth  v.  Knowlton,  22  Cal. 
164.  A  denial  that  the  plaintiff  is  the 
owner  of  the  property  described  in  the 
complaint,  and  an  allegation  that  the  de- 
fendant has  not  sufficient  information  or 
belief  to  enable  him  to  answer  the  alle- 
gation of  the  plaintifT  that  he  is  entitled 
to  the  possession  of  the  property,  and  on 
that  ground  he  denies  the  same,  are  suffi- 
cient to  put  in  issue  the  allegation  of  the 
plaintiff.  Cunningham  v.  Skinner,  65  Cal. 
385;  4  Pac.  373.  An  averment  in  a  cross- 
complaint  by  a  chattel  mortgagee,  sued  in 


§509 


CLAIM  AND  DELIVERY   OF   PERSONAL  PROPERTY. 


480 


replevin  to  recover  a  crop,  claiming  the 
ownership  thereof,  and  in  another  count 
alleging  his  rights  as  a  chattel  mortgagee, 
is  not  a  waiver  of  the  mortgage  claim: 
the  defendant  has  the  right  to  plead  in- 
consistent defenses.  Summerville  v.  Stock- 
ton Milling  Co.,  142  Cal.  529;  76  Pac.  243. 
Conjunctive  denials  of  the  allegations  of 
a  complaint  in  claim  and  delivery  are  in- 
sufficient to  raise  an  issue.  Richardson  v. 
Smith,  29  Cal.  529.  A  denial  that  on  the 
day  specified  in  the  complaint  the  plaintiff 
was  the  owner  and  lawfully  in  possession 
of  the  property  is  conjunctive,  evasive,  and 
raises  an  immaterial  issue  as  to  time,  but 
no  issue  as  to  possession,  except  in  con- 
junction with  ownership.  Kuhland  v.  Sedg- 
wick, 17  Cal.  123.  A  denial  of  ownership 
of  property  by  the  plaintiff  joins  a  ma- 
terial issue.  Carman  v.  Ross,  64  Cal.  249; 
29  Pac.  510.  A  denial  that  the  defendant, 
at  any  time,  unlawfully  took  and  carried 
away  the  property,  is  a  mere  denial  that 
those  acts  were  wrongfully  done  (Lay  v. 
Neville,  25  Cal.  545);  as  is  also  a  denial 
that  the  defendant  wrongfully  and  unlaw- 
fully seized,  took,  or  carried  away  the 
property.  Woodworth  v.  Knowlton,  22  Cal. 
164.  An  allegation  of  ownership  and  right 
to  possession  of  chattels  is  put  in  issue  by 
an  admission  in  the  answer  that  the  de- 
fendant is  in  possession,  coupled  with  an 
allegation  that  he  is  the  owner.  Miller  v. 
Brigham,  50  Cal.  615. 

Justification  of  officer  under  writ.  Where 
an  officer  is  sued  for  seizing  or  selling  prop- 
erty of  one  under  an  execution  against 
another,  he  must,  in  order  to  show  that 
the  transfer  of  property  by  the  execution 
debtor  was  fraudulent  and  void  as  to  the 
execution  creditor,  prove  not  only  the  issu- 
ance of  the  execution,  the  levy,  and  that 
he  was  a  creditor,  but  also  the  rendition  of 
a  judgment  upon  his  debt,  and  that  the 
execution  was  issued  upon  such  judgment. 
Kane  v.  Desmond,  63  ('al.  464.  An  officer 
who  seizes  property  in  the  hands  of  a 
debtor  may  justify  under  the  execution  or 
process;  but  where  he  takes  property  from 
a  third  person,  who  claims  to  be  the  owner 
thereof,  if  on  execution,  he  must  show  the 
judgment  and  execution;  if  on  attachment, 
the  writ  of  attachment,  and  the  proceed- 
ings on  which  it  is  based.  Thornburgh  v. 
Hand,  7  Cal.  554.  Irregularities  in  the  pro- 
ceedings leading  up  to  the  writ  of  execu- 
tion, not  appearing  on  the  face  of  the  writ, 
do  not  prevent  the  sheriff  from  justifying 
under  an  execution  valid  on  its  face.  Nor- 
cross  V.  Nunan,  61  Cal.  640.  The  plea  of 
justification  by  the  sheriff,  in  claim  and 
delivery,  sliould  clearly  show  that  when  he 
took  the  property  from  the  plaintiff  he  was 
armed  with  an  affidavit  containing,  sub- 
stantially, the  matters  required  by  law  to 
be  stated  in  it,  and  with  a  sufficient  order 
and  undertaking.  Laughlin  v.  Thompson, 
76  Cal.  287;  18  Pac.  330.  Where  there  is 
no   affidavit   on  which   the  plaintiff  or   his 


attorney  might  have  indorsed  the  direction 
to  the  constable  to  take  the  property  in 
question,  and  the  property  was  not  turned 
over  to  the  plaintiff  by  the  constable,  there 
is  not  a  sufficient  showing  to  connect  the 
plaintiff  in  a  replevin  suit,  or  the  defend- 
ant in  a  subsequent  suit,  with  the  taking 
of  the  property  by  the  officer.  Martin  v. 
Barry,  145  Cal.  540;  79  Pac.  66.  It  is  error 
to  strike  from  a  complaint,  and  from  the 
answer  thereto,  all  reference  to  a  part  of 
the  property  sued  for,  where  the  defendant 
alleges  that  the  plaintiff  has,  by  ancillary 
process,  taken  from  him  the  possession  of 
the  property:  the  court  has  no  power  to 
strike  out  allegations  which  will  deprive  a 
party  of  an  opportunity  to  try  the  ques- 
tion of  his  right  to  a  portion  of  the  prop- 
erty involved  in  the  action.  Howell  v. 
Foster,  65  Cal.  169;  3  Pac.  647.  Contempt 
of  court  may  be  committed  by  using  the 
process  of  the  court,  in  claim  and  delivery, 
in  bad  faith,  to  obtain  possession  of  the 
property  of  the  defendant  in  an  improper 
manner,  without  trial,  and  to  fraudulently 
procure  the  same  after  it  has  been  re- 
plevied by  the  sheriff,  and  while  in  his 
custody.  Ex  parte  Acock,  84  Cal.  50;  23 
Pac.  1029.  A  right  of  action  for  the  wrong- 
ful taking  and  conversion  of  personal  prop- 
erty is  assignable,  and  the  assignee  can 
recover  upon  the  same  in  his  own  name. 
Lazard  v.  Wheeler,  22  Cal.  139. 

Waiver  of  jury.  A  jury  trial  is  waived, 
in  claim  and  delivery,  by  the  failure  of  the 
defendant  to  appear  at  the  trial  (Waltham 
V.  Carson,  10  Cal.  178);  but  a  jury  trial  of 
issues  of  law  presented  by  the  complaint 
in  replevin  is  not  waived,  where  defendant 
sets  up  an  equitable  defense.  Swasey  v. 
Adair,  88  Cal.  179;  25  Pac.  1119. 

Judgment,  and  effect  of.  Judgment  in 
an  action  of  replevin  is,  as  between  the 
parties,  conclusive  evidence  of  the  title  to 
the  property,  in  a  subsequent  action  for  its 
conversion;  damages  for  the  detention  of 
property  may  be  recovered  in  the  subse- 
quent action,  where  none  were  recovered  in 
the  replevin  suit,  and  the  finding  of  value 
is  necessary  to  enable  the  plaintiff  to  re- 
cover against  the  sureties  on  the  forthcom- 
ing bond,  but  failure  so  to  find  does  not 
affect  his  right  to  recover  from  the  defend- 
ant for  conversion  of  the  property;  judg- 
ment in  replevin,  except  when  it  has  been 
satisfied,  does  not  bar  an  action  in  trover; 
and,  while  the  cause  of  action  is  in  both 
cases  the  same,  the  object  is  essentially 
different:  in  the  one  case,  the  plaintiff 
seeks  to  recover  a  specific  chattel;  in  the 
other,  the  value  of  such  chattel,  when,  ow- 
ing to  the  acts  of  the  defendant,  it  was 
not  in  his  power  to  procure  a  return. 
Nickerson  v.  California  Stage  Co.,  10  Cal. 
520.  Where  the  property  in  claim  and  de- 
livery has  been  destroyed,  so  that  a  judg- 
ment for  its  delivery  would  be  necessarily 
unavailing,  the  failure  to  render  judgment 
for  its  possession  would  be  merely  a  tech- 


481 


DAMAGES ACTION  FOlt,  AND    MEASURE  OF. 


§509 


nical  error  or  an  omission,  for  which  the 
judgment  would  not  be  reversed.  Brown  v. 
Johnson,  45  Cal.  76;  Thomas  v.  VVitherby, 
61  Cal.  92;  44  Am.  Kep.  542.  Where  a 
mortgagor  replevies  the  property  from  the 
mortgagee,  and  the  latter  was  entitled  to 
the  pt'Ssession  thereof,  but,  pending  the 
suit,  the  mortgagor  tenders  the  full  amount 
of  the  mortgaged  debt,  the  judgment  should 
be  for  the  defendant  for  costs,  but  not  for 
the  return  of  the  property.  Wildman  v. 
Eadenaker,  20  Cal.  615.  Judgment  against 
a  plaintiff,  and  in  favor  of  some  of  the  de- 
fendants, in  another  action,  to  recover  the 
same  property,  is  res  adjudicata,  and  is  a 
good  plea  in  bar,  whether  erroneous  or  not. 
Keech  v.  Beatty,  127  Cal.  177;  59  Pac.  .S;?7. 
Matters  alleged  in  a  special  defense,  fol- 
lowing denials  of  the  allegations  of  the 
complaint,  cannot  be  availed  of  by  the 
jjlaintiff,  on  a  motion  for  judgment  on 
the  pleadings.  Nudd  v.  Thompson,  34  Cal. 
39. 

Damages,  action  for,  and  measure  there- 
of. When  the  recovery  of  the  property  is 
the  primary  object  of  the  suit,  and  damages 
will  not  compensate  the  plaintiff,  the  in- 
jured party  should  frame  his  bill  in  equity, 
specifying  the  reasons  for  seeking  the  re- 
covery of  the  property  itself,  and  the  de- 
cree can  then  be  so  framed  as  to  compel  a 
specific  delivery.  Nickerson  v.  Chatterton, 
7  Cal.  568.  The  measure  of  damages,  where 
delivery  cannot  be  had,  and  only  detention 
of  property  is  complained  of,  is  its  value 
at  the  place  of  detention  when  the  action 
was  commenced.  Hisler  v.  Carr,  31  Cal.  641. 
The  dismissal  of  a  suit,  after  obtaining 
possession  of  the  goods,  is  not  a  bar  to  the 
claim  of  the  person  from  whose  custody 
they  were  replevied;  while  plaintiff's  acts 
amount  to  a  breach  of  condition  of  his 
undertaking,  and  give  the  defendant  a 
cause  of  action  thereon  for  such  damages 
as  he  sustained,  yet  that  remedy  is  not  ex- 
clusive, and  he  is  not  compelled  to  sue  on 
the  undertaking.  Tapscott  v.  Lyon,  103 
Cal.  297;  37  Pac.  225. 

Replevin.    See  rote  80  Am.  St.  Rep.  741. 

Replevin  of  property  levied  upon  under  execu- 
tion.   See  note  9  Am.  Dec.   10.5. 

Replevin  for  property  in  custody  of  the  law. 
See  note  8  L.  R.  A.    (N.   S.)    216. 

Right  to  maintain  replevin  for  goods  seized 
under  process  against  another.  See  note  7  Ann. 
Cas.  907;   11  Ann.   Cas.  302. 

Replevin  for  property  taken  by  levy  under  void 
or  voidable  judgment.    See  note  r>5  L.  K.  .\.  280. 

General  rules  as  to  parties  in  and  title  neces- 
sary to  support  replevin.  See  note  1  Ann.  Cas. 
984. 

Replevin  for  possession  of  deed.  See  notes  17 
Ann.  Cas.   1018;   20  L.  R.  A.    (N.  S.)   507. 

Replevin  to  recover  produce  of  trees  unlaw- 
fully cut  from  land.    See  note  19  L.  R.  A.  654. 

Replevin  for  dogs.    See  note  40  L.  R.  A.  507. 

Right  to  maintain  replevin  by  or  against  one 
In  adverse  possession  of  land  for  things  severed. 
See  note  69  L.  R.  A.   732. 

Right  to  maintain  action  to  recover  property  in 
specie  against  one  not  in  possession.  See  note  18 
L.  R.  A.  (N.  S.)  120-,. 

Replevin    for    undivided    interest    in    personal 
property.    See  note  37  L.  K.  A.  (N.  S.)  267. 
1  Fair. — 31 


CODE  COMMISSIONERS'  NOTE.  1.  Gen- 
erally. The  comnioiilaw  action  of  replevin  is 
abolished,  and  the  provisions  of  this  chapter  take 
its  place.  Roberts  v.  Randel,  3  Sandf.  707;  5 
How.  Pr.  327;  Nichols  v.  Michael,  23  N.  Y.  269; 
80  Am.  Dec.  259;  Rockwell  v.  S.iunders,  19  Barb. 
481.  The  action  for  the  "claim  and  delivery  of 
personal  property,"  under  our  code,  is  commen- 
surate with  the  action  of  detinue  at  common  law. 
-McLauKlilin  v.  Piatti,  27  Cal.  464.  In  that  ac- 
tion, the  manner  of  laying  the  possession  of  the 
property  has  always  been  held  to  be  inducement. 
It  is  usual  to  aver  a  bailment  or  finding.  Otero 
V.  iJuUard,  3  C.il.  188.  In  this  action,  under  the 
code  the  plaintiff  may  or  may  not,  at  his  elec- 
tion, seek  its  immediate  delivery.  Wellman  v. 
English,  38  Cal.  583. 

2.  Right  of  action  may  be  assigned.  Robinson 
V.  Weeks,  6  IIow.  Pr.  161;  McKee  v.  Judd,  12 
N.  Y.  622;  64  Am.  Dec.  515;  People  v.  Tioga 
Common  Pleas,  19  Wend.  75. 

3.  Bill  in  equity.  If  the  recovery  of  the  prop- 
erty is  the  jiiimary  object,  and  damages  would 
not  compensate,  a  bill  will  lie.  Nickerson  v. 
Chatterton,  7  Cal.  570. 

4.  Fixtures.  Fi.xtures  wrongfully  served  from 
the  premises  become  personal  property,  and  may 
be  recovered  in  this  action.  Sands  v.  PfeiflFer, 
10  Cal.  258. 

5.  When  the  action  can  be  maintained.  The 
plaintiff  must  either  have  the  possession,  or  the 
immediate  right  to  the  possession,  of  the  prop- 
erty. Middlesworth  v.  Sedgwick,  10  Cal.  392. 
A  safe  in  the  possession  of  McC,  belonging  to 
W.  P.  &  Co.,  for  whom,  as  also  for  plaintiff,  he 
was  agent,  contained  six  thousand  dollars  in  coin. 
Of  this  sum,  four  hundred  dollars  belonged  to 
W.  P.  &  Co.,  the  balance  to  plaintiff.  The  sheriff, 
under  a  writ  against  McC,  seized  eighteen  hun- 
dred dollars  of  the  money  in  the  safe  as  his  prop- 
erty, and  put  it  in  a  bag.  Plaintiff  then  claimed 
the  money  as  his,  McC.  being  present  and  not  ob- 
jecting. It  was  held  that  this  amounted  to  a 
segregation  of  eighteen  hundred  dollars  from  the 
mass  of  coin  in  the  safe,  so  as  to  sustgin  the 
action  by  plaintiff.  Griffith  v.  Bogardus,  14  Cal. 
410.  To  render  the  defendant  liable,  he  must 
have  converted  the  property  to  his  own  use,  and 
if  not,  then  any  other  act,  to  amount  to  a  con- 
version, must  be  done  with  a  wrongful  intent, 
either  e.xpress  or  implied.  Rogers  v.  Huie,  2  Cal. 
571;  56  Am.  Dec.  363.  This  action  lies  for  all 
goods  and  chattels  unlawfully  taken  or  detained, 
and  may  be  brought  whenever  one  person  claims 
personal  property  in  the  possession  of  another, 
and  this  whether  the  claimant  had  ever  had  pos- 
session or  not,  and  whether  his  property  in  the 
goods  be  absolute  or  qualified,  provided  he  has 
the  right  to  the  possession.  Lazard  v.  Wheeler, 
22  Cal.  139.  Where  the  defendant  is  in  the  ad- 
verse possession  of  land  as  a  trespasser,  without 
color  of  title,  he  is  not  in  the  position,  before 
the  statute  of  limitations  has  run,  to  contest  the 
title  of  the  true  owner  in  such  a  sense  as  to  de- 
feat a  personal  action  brought  by  such  owner  to 
recover  wood  cut  by  him  on  (he  land.  Kimball 
V.  Lohmas.  31  Cal.  156;  Halleck  v.  Mixer,  16 
Cal.  579.  An  agreement  between  two  or  more 
persons  to  convert  the  property  of  another,  not 
followed  by  acts  to  that  end,  does  not  give  a  right 
of  action  against  such  persons.  Herron  v.  Hughes, 
25  Cal.  555.  A  bill  of  sale  of  a  given  number 
of  cattle  out  of  a  herd  running  at  large,  which 
gives  the  purchaser  the  right  to  select  and  take 
at  once  the  number  sold,  is  sufficient  to  entitle 
the  purchaser,  after  demand  and  refusal,  to  main- 
tain an  action  for  the  recovery  of  the  entire  herd, 
out  of  which  he  may  make  his  selection,  and 
return  the  residue  to  the  vendor.  McLaughlin 
v.  Piatti,  27  Cal.  4G4.  If  a  chose  in  action  has 
been   pleil"-ed   to   secure   a   debt,    and  payment  has 

.  been  tendered  and  demand  made  for  its  return, 
this  action  will  He.  Luckey  v.  Gannon,  37  How. 
Pr.   134;   6  Abb.  Pr.    (X.  S.)   209. 

6.  When  the  action  cannot  be  maintained.  One 
partner  cannot  sustain  an  action  against  another 
pariner  for  the  delivery  of  personal  property  be- 
longing to  the  partnership.  Buckley  v.  Carlisle. 
2   Cal.  420.      If  an  officer,  by  his  misconduct,   in- 


§510 


CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 


482 


duces  a  sale  of  property  for  less  than  it  would 
otherwise  have  brought,  the  remedy  must  be  an 
action  for  damages  resulting  from  his  acts,  and 
not  an  action  to  recover  the  property.  Foster  v. 
Coronel,  1  Cal.  Unrep.  402.  Replevin  for  hay 
cut  on  public  lands  cannot  be  maintained  by  a 
prior  possessor  against  one  who  was  in  adverse 
possession,  claiming  a  pre-emption  right  entered 
when  he  cut  the  hay.  Page  v.  Fowler,  2  8  Cal. 
605.  In  an  action  brought  against  the  sheriff, 
who  seized  the  property  by  virtue  of  an  attach- 
ment, it  is  a  good  defense  to  show  that  the  de- 
fendant in  the  attachment,  when  insolvent,  sold 
the  property  to  the  plaintiff  to  defraud  his  credi- 
tors; that  the  plaintiff  had  knowledge  of  these 
facts;  and  that  the  defendant  has  since  been  de- 
clared a  bankrupt,  and  the  sheriff  has,  on  the 
demand  of  the  assignee  in  bankruptcy,  delivered 
him  the  goods.  Bolander  v.  Gentry,  36  Cal.  105; 
95  Am.  Dee.  162.  If,  during  the  pendency  and 
before  the  trial  of  the  action,  the  defendant  has 
been  required,  to  and  has  delivered  the  property 
to  another  person,  entitled  to  its  possession  as 
against  both  parties  to  the  action,  that  fact  may 
be  set  up  to  defeat  the  action.  Bolander  v.  Gen- 
try, 36  Cal.  105;  95  Am.  Dec.  162.  If  the  prop- 
erty was  seized  by  virtue  of  a  warrant  for  a  tax 
under  an  act  of  Congress,  it  cannot  be  replevied. 
O'Reilly  v.  Good,  42  Barb.  521;  18  Abb.  Pr.  106. 
7.  Demand.  Where  personal  property  is  wrong- 
fully detained,  a  demand  is  necessary  before  the 
action  is  commenced  for  its  recovery.  Sluyter  v. 
Williams,  37  How.  Pr.  109;  1  Sweeny,  215.  A 
demand  is  not  necessary  before  suing  a  sheriff 
for  property  tortiously  taken  by  him.  Wellman 
V.  English,  38  Cal.  583;  Moore  v.  Murdock,  26 
Cal.  524;  Boulware  v.  Craddock,  30  Cal.  190. 
The  general  rule  is,  that  when  the  possession  of 
property  is  originally  acquired  by  a  tort,  no  de- 
mand previous  to  the  institution  of  suit  for  its 
recovery  is  necessary.  It  is  only  when  the  origi- 
nal possession  is  lawful,  and  the  action  rests 
upon  the  unlawful  detention,  that  a  demand  is 
required.  Paige  v.  O'Neal,  12  Cal.  483;  Ledley 
V.  Havs,  1  Cal.  160;  Sargent  v.  Sturm,  23  Cal. 
359;  83  Am.  Dec.  118.  Where  the  taking  is  by 
an  officer  upon  proper  legal  authority,  a  demand 
is  necessarv,  in  order  to  make  him  liable  in  dam- 
ages. Daumiel  v.  Gorham,  6  Cal.  43;  Taylor  v. 
Sevmour,  6  Cal.  512;  Killey  v.  Scannell,  12  Cal. 
73";  but  see  Wellman  v.  English,  38  Cal.  583. 
Where  certain  personal  property  owned  by  plain- 
tiff, but  which  had  been  used  by  A.  &  G.,  under 
a  contract  of  hire,  was  taken  by  the  officer  from 
the  possession  of  the  plaintiff,  by  virtue  of  an 
attachment  against  G.  subsequent  to  which  plain- 
tiff, having  made  a  demand  for  the  property  upon 
the  sheriff,  but  not  upon  A.  &  G.,  commenced  this 
action  against  the  former  for  its  recovery.  Held, 
that  the  demand,  if  necessary  at  all,  was  prop- 
erly made  upon  the  defendant  in  whose  possession 
the  propertv  was  at  the  time.  Woodworth  v. 
Knowlton,  22  Cal.  164. 

8.  Evidence.  Where  the  vendee  replevied  the 
goods  from  the  attaching  creditor,  and  only  es- 
tablished title  by  proving  a  possession  of  several 
months,  it  was  competent  for  the  defendant,  on 
cross-examination  of  plaintiff's  witness,  to  ask  in 
whose  possession  the  chattels  were  at  a  period 
anterior  to  the  possession  proved  by  plaintiff,  to 
drnw  from  the  witness,  if  possible,  the  fart  that 
plaintiff's  possession  was  a  fraud  to  hide  the 
debtor's  prc)pcrty.  Thornburgh  v.  Hand,  7  Cal. 
.054.  The  declarations  of  a  vendor  of  personal 
property,  after  the  sale,  are  not  admissible  to 
impeach  the  title  of  the  vendee.  Visher  v.  Web- 
ster, 8  Cal.  109.  In  an  action  to  recover  specific 
personal  property,  plaintiff  relied  exclusively 
upon  his  possession  at  the  time  of  the  taking  by 
defendant;  and  defendant  first  established  a 
prima  facie  title  sufficient  to  destroy  the  pre- 
sumption of  title  in  plaintiff  arising  from  his 
possession,  and  then  went  further  and  showed, 
plaintiff  excepting,  that  plaintiff  obtained  the 
property  by  proceedings  under  a  void  judgment. 


Held,  that  the  introduction  of  this  further  evi- 
dence by  defendant  showing  the  invalidity  of  the 
judgment,  was  of  no  advantage  to  him,  as  he 
had  already  rebutted  plaintiff's  case,  based  solely 
on  possession,  and  that  it  did  not  prejudice  plain- 
tiff, and  is  no  ground  of  error.  Lafontaine  v. 
Green,  17  Cal.  "294.  When  property  is  taken 
from  the  defendant  by  the  officer,  it  is  sufficient 
to  introduce  in  evidence  the  writ  under  which 
the  levy  is  made;  but  when  the  property  is  taken 
from  the  possession  of  a  stranger  to  the  writ,  it 
is  necessary  to  show  a  judgment  or  prove  the 
debt.  Sexey  v.  Adkinson,  34  Cal.  346;  91  Am. 
Dec.  698.  Evidence  may  be  admitted  of  the 
highest  market  value  of  the  property  between 
the  time  of  conversion  and  trial.  Tully  v.  Har- 
loe,  35  Cal.  802;  95  Am.  Dec.  102;  but  see  Page 
V.  Fowler,  39  Cal.  412;  2  Am.  Rep.  462;  cited 
in  the  note  under  subd.  9. 

9.  Damages.  In  actions  for  the  recovery  of 
personal  property  of  fluctuating  value,  the  meas- 
ure of  damages  is  the  highest  market  value  within 
a  reasonable  time  after  the  property  was  taken, 
with  interest  from  the  time  the  value  was  esti- 
mated. Page  v.  Fowler,  39  Cal.  412;  2  Am.  Rep. 
462:  see  also  Dorsey  v.  Manlove,  14  Cal.  553; 
Phelps  V.  Owens,  11  Cal.  22;  Pelberg  v.  Gor- 
ham, 23   Cal.   349. 

10.  Judgment.  In  this  action  the  judgment  may- 
be for  more  than  the  value  as  alleged  in  the  com- 
plaint, if  it  be  within  the  ad  damnum  of  the  writ. 
The  value  of  the  property  is  only  one  predicate  of 
the  recovery.  Coghill  v.  Boring,  15  Cal.  215. 
AVhere  the  defendant  has  required  the  return  of 
the  property,  and  given  an  undertaking  for  such 
purpose,  a  judgment  for  plaintiff,  in  order  to  hold 
the  sureties  on  the  undertaking,  must  be  in  the 
alternative,  as  required  by  §§  104,  177,  and  210 
of  the  Practice  Act  (§§514,  627,  and  682  of 
this  code).  Nickerson  v.  Chatterton,  7  Cal.  569; 
Dorsey  v.  Manlove,  14  Cal.  555.  Where  a  part- 
ner, in  good  faith,  sells  partnership  property  to 
satisfy  his  individual  indebtedness,  and  the  pur- 
chaser brings  replevin  against  a  creditor  of  the 
firm  who  has  attached  the  property,  it  was  held 
that  the  court  properly  rendered  a  judgment  in 
favor  of  the  purchaser,  it  being  presumed  in  sup- 
port of  the  judgment  that  the  court  below  found 
it  as  fact  that  the  other  partner  consented  to  and 
authorized  the  sale.  Stokes  v.  Stevens,  40  Cal. 
391.  The  omission  to  specify  in  the  judgment 
the  property  of  which  restitution  is  to  be  made 
is  error.  Campbell  v.  Jones,  38  Cal.  507.  A  de- 
fendant who  recovers  judgment,  the  jury  failing 
to  find  the  value  of  the  property  to  exceed  two 
hundred  dollars,  is  entitled  to  his  costs,  where 
the  plaintiff's  complaint  states  its  value  at  a  sum 
exceeding  that  amount.  Edgar  v.  Gray,  5  Cal. 
267.  If  the  action  is  improperly  commenced, 
the  party  bringing  it,  having  obtained  the  bene- 
fit, cannot  avoid  the  undertaking  he  has  given 
by  pleading  his  own  misfeasance.  Turner  v.  Billa- 
gram,  2  Cal.  522.  If  the  plaintiff  take  the  prop- 
erty at  the  commencement  of  the  action,  and  the 
defendant  prays  the  return  of  it,  and  the  de- 
fendant was  entitled  to  the  property  at  the  com- 
mencement of  the  action,  but  his  right  has  ceased 
and  vested  in  the  plaintiff  before  trial,  the  judg- 
ment ought  to  leave  the  property  in  plaintiff's 
possession,  but  award  costs  to  defendant.  O'Con- 
ner  v.  Blake.  29  Cal.  312.  In  an  action  by  the 
pledgee  against  a  stranger  for  the  conversion 
of  goods,  the  plaintiff  is  entitled  to  recover  the 
full  value  of  the  goods ;  but  if  the  goods  have 
been  converted  by  the  owner,  or  by  any  one  act- 
ing in  privity  with  him,  the  pledgee  can  recover 
only  the  value  of  his  special  interest  in  the 
pledge.  Treadwell  v.  Davis,  34  Cal.  601;  94  Am. 
Dec.  770. 

11.  New  matter  in  answer.  Where  the  action 
is  replevin,  it  is  not  competent  for  the  defendant, 
in  his  answer,  to  introduce  a  new  and  distinct 
'  subject-matter  of  litigation,  claiming  of  the  plain- 
tiff the  return  of  other  properly.  Lovensohn  v. 
M'ard,  45  Cal.  8. 


§  510.     Affidavit  and  its  requisites.     Whore  a  delivery  is  claimed,  an  affi- 
davit must  be  made  by  the  plaintiff,  or  by  some  one  in  his  behalf,  showing: 


483  AFFIDAVIT — REQUISITES — REQUISITION — SECURITY.  §§  511,  512 

1.  That  the  i)l;iintiff  is  the  owner  of  the  property  elaimed  (particularly 
describing  it),  or  is  entitled  to  the  possession  tliereof; 

2.  That  the  property  is  wrongfully  detained  by  the  defendant; 

3.  The  alleged  cause  of  the  detention  thereof,  according  to  his  best  knowl- 
edge, information,  and  belief; 

4.  That  it  has  not  been  taken  for  a  tax,  assessment,  or  fine,  pursuant  to  a 
statute;  or  sei/ed,  under  an  execution  or  an  attachment  against  the  pi-operty 
of  the  plaintiff;  or,  if  so  seized,  that  it  is  by  statute  exempt  from  such 
seizure ; 

5.  The  actual  value  of  the  property. 

Subd.   6.      Value,  incorrectly  stated  in  affidavit.  CODE    COMMISSIONERS'   NOTE.      1.  Owner- 
Ante    §473.  8hip.      If    till'    plaintiff   claims    as   owner,    his   affi- 
davit  need   not   set    up   facts   proving   such   owner- 
Legislation  S  510.      Enacted   jrarch    11,    1873;  ship;   his   affidavit    "that   he   is   the   owner"    is,    in 
based    on    I'ractice    Act,   §  100   (New    York    Code,  this  respect,  sufficient.    Burns  v.  Kobbins,  1  Code 
§207),  which  had,    (1)    in  the  introductory  para-  Rep.     C2 ;     Vandenburg     v.     Van     Valkenburg,     8 
eraph,    the   word    "shall"    instead    of    "must."    (2)  Barb.    217.      But    if    the    property    is    claimed    as 
in  subd.  1,  the  word  "lawfullj-"  before  "entitled,"  exempt  from  execution,  the  facts  constitutinR  the 
(3)   in  subd.  4,    (a)   the  words  "the  same"  instead  e.xemption    must    appear     in     the    affidavit.    Spal- 
of  "it,"  before  "has  not  been,"  and    (b)   the  word  ding   v.    Spalding,    3    How.   Pr.   297;    1    Code   Rep. 
"and"  after  "seizure."  G4  ;  see  also  Roberts  v.  Willard,  1  Code  Rep.  100. 
__            -.L-        ^       ^j       -i        1                111-  If  'he  property  is  claimed  by   virtue  of  a   special 
Necessity    of     affidavit.      A     constable    is  property    therein,    the    affidavits    must    show    the 
not  justified   in    taking  property,   in    claim  facts  in  respect  to  such  special  property,  to  the 
and  'delivery,   from   the   possession   of    the  ^"i-l^''*  ^^'"^   court   may  see  upon  what  facts  a 
-,    .       -,       .      •  '             T        ,•'            i      -I     1       ii  special  property  and  right  of  possession  is  made 
defendant,  upon  a  direction  so  to  do  by  the  out.    Depew  v.  Leal,  2  Abb.  Pr.  i3i. 
plaintiff,    unless    he    receives    from    hini    an  2.  Additional  affidavits.     The  court  may  allow 
affidavit,   order,   and   undertaking   substan-  additional   afiidaviis   to   be  read,   or  the  plaintiff 
..1,                     ,    .               .,,       ,,  .            ",.                3  may   file   a   supplemental   affidavit  to   supply  a  de- 
tially     complying    with    this     section    and  fpct.    Depew  v.  Leal,  2  Abb.  Pr.  131. 
§§511,    512,    post.     Laughlin    v.    Thompson,  3.  Amendments.     Where  the  affidavit  is  objected 
76  Cal.  2S7*    IS  Pae.  330.  *°     f^''    insufficiency,     the    court    will     permit    an 
_'...'         x^         "     .^         1-.             i               li  amendment    of    course.     Spalding    v.    Spalding.    3 

Description  of  property.    Property  sought  How.  Pr.  297;  i  Code  Rep.  64 

to  be  recovered  must  be  described  with  a  4.  Opposing   affidavits.     In    O'Reilly   v.   Good, 

reasonable  degree   of   certainty,   to   enable  },^  -^^'-  I'f-  106   42  Barb    521,  it  was  held  that 

,1          1    £       J       T    J.        1               i.             i.1            A-  'he   affidavit   of   the  defendant   and  of   a   collector, 

the    defendant    to    make     return    thereof.  „,,t  j^e  goods  were  taken  for  a  ta.x,  was  suffi- 

Ilawley  v.  Kocher,  123  Cal.  77;  55  Pac.  696.  cieut  to   set  aside  proceedings  under  this   section. 

See  also   Stockwell  v.  Vietch,   15  Abb.  Pr.  412. 

Sufficiency  of  description  of  property  in  com-  5.  Waiver.      A    general    appearance    in    the    ac- 

plaint  for  replevin,    ,'•^ee  note  -is  Am.  iJec.  C-,98.  tion     waives     all     irregularities     in     the     affidavit. 

Necessity    and    sufficiency    of    allegation    as    to  Wisconsin    JI.    &    F.    Ins.   Co.    Bank   v.    Hobbs,    22 

ownership  or  right  to  possession  in  complaint  in  How.    Pr.    494;    Hyde   v.    Patterson,    1    Abb.    Pr. 

replevin.    See  note  Ann.  t^as.  1912A,  333.  248. 

§  511.  Requisition  to  sheriff  to  take  and  deliver  the  property.  The  plain- 
tiff or  his  attorney  may,  thereupon,  by  an  indorsement  in  writing  upon  the 
affidavit,  require  the  sheriff  of  the  county  where  the  property  claimed  may 
be,  to  take  the  same  from  the  defendant. 

Legislation  §  511.     Enacted  March  11,  1873;  thority  upon  him    and  the  defendant  may 

re-enactment    of    Practice    Act,  §  101   (New    York  „„„    j.u_     „fif;,.„_    i.     »„^,„,.„«    ,•+„     , •„ 

Code,  §208),    as    amended    by    Stats.    1854,    Red-  ?"®,/7     ^^^^l^    tO    recover    its     possession, 

ding  ed.  p.  60,  Kerr  ed.  p.  86.  Halleck  v.  Mixer,  16  Cal.  o74;  Laughlin  v. 

or.     -«•.        i-v,     -4.         A  J-       i.-       i.         Thompson,  76  Cal.  2S7;   18  Pac.  330. 

Shenff's  authority.     A  mere  direction  to  ^       '  .     o.,  j.o  xau.  oo^j. 

a   sheriff  or  constable,   bv   the   plaintiff   in  CODE   COMMISSIONERS'  NOTE.    Rhodes   v. 

f>1nim    nnrl    dplivprv     tn   tflkp    nronprtv    from  Patterson.    3    Cal.   469;    Smith   v.   Orser.    43   Barb. 

Claim  ana  aeii\ei>,  to  idKe  propert}    irora        ,„_     p.__-,  „    i.-i-hpr    «  am,    p,.    iv    e  ,   q«o 


the    defendant,    confers    no     color    of    au- 


187;   Barry  v.  Fisher,   8  Abb.  Pr.   (.N.  S.)    369. 


§  512.  Security  on  the  part  of  the  plaintiff,  and  proceedings  in  serving 
the  order.  Upon  a  receipt  of  the  affidavit  and  notice,  with  a  written  under- 
taking, executed  by  two  or  more  sufficient  sureties,  approved  by  the  sheriff. 
to  the  effect  that  they  are  bound  to  the  defendant  in  double  the  value  of  the 
property  as  stated  in  the  affidavit  for  the  prosecution  of  the  action,  for 
the  return  of  the  property  to  the  defendants,  if  return  thereof  be  ad.judged, 
and  for  the  payment  to  him  of  such  sum  as  may  from  any  cause  be  recovered 
against  the  plaintiff,  the  sheriff  must  forthwith  take  the  property  described 
in  the  affidavit,  if  it  be  in  the  possession  of  the  defendant  or  his  agent,  and 


e  512  CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY.  484 

retain  it  in  bis  custody.  He  must,  without  delay,  serve  on  the  defendant  a 
copy  of  the  affidavit,  notice,  and  undertaking,  by  delivering  the  same  to  bim 
personally,  if  he  can  be  found,  or  to  his  agent  from  whose  possession  the 
property  is  taken ;  or,  if  neither  can  be  found,  by  leaving  them  at  the  usual 
place  of  abode  of  either,  with  some  person  of  suitable  age  and  discretion, 
or,  if  neither  have  any  known  place  of  abode,  by  putting  them  in  the  nearest 
post-office,  directed  to  the  defendant. 


Sheriff's  duties.  Pol.  Code,  §§  4185,  4188;  and, 
generally,  §§  4175—4193. 

Qualifications  of  sureties.  Ante,  §  494 ;  post, 
§  1057. 

Return  of  property  to  defendant. 

1.  Verdict   for.     Post,  §  627. 

2.  Judgment  for.    Post,  §  667. 

Dismissal  of  action.  Clerk  to  hand  undertak- 
ing to  defendant.    Post,  §  581,  subd.  1. 

Officer  executing  process  must  produce  same 
on   recLuest.     Pol.  Code,  §  4169. 

Value  stated  in  affidavit  is  not  conclusive  evi- 
dence against  sheriff  or  sureties.    Ante,  §  4  73, 

Legislation  §  512.  1.  Enacted  March  11,  1872  ; 
based  on  Practice  Act,  §  102  (New  York  Code, 
§209),  as  amended  by  Stats.  1854,  Redding  ed. 
p.  61,  Kerr  ed.  p.  86,  which  had  (1)  the  word 
"shall"  instead  of  "must,"  before  "forthwith 
take,"  and  (2)  the  words  "shall  also"  instead 
of   "must,"   before   "without  delay." 

2.  Amendment  by  Stats.  19_01,  p.  135;  un- 
constitutional.   See  note  ante,  §  5. 

Effect  of  bond.     The  effect  of  a  replevin 
bond  is,  simply,  to  give  the  party  the  pos- 
session of  the  property,  pending  the  litiga- 
tion; the  title  is  not  changed;  no  sale  made 
by  the  party  in  possession,  and  who  after-  « 
wards  turns   out   to   have   no   right   to   the 
property,  can  convey  any  title  to  the  pur- 
chaser; and  if  the  title  would  not  vest  in 
the  unsuccessful  party  until  the  judgment 
in  the  replevin  suit,  of  course  it  would  not 
vest  in  him  upon  delivery  of  the  replevin 
bond;    and    although    the    title    vests    upon 
the  rendition  of  the  judgment,  yet  the  prop- 
erty  is   still   subject   to   be   taken   by   the 
successful  party,  until   he  makes  his  election 
to  sue  upon  the  undertaking  in  replevin; 
he  may  sue  without  issuing  execution;  but, 
at  any  time  before  suit  is  brought,  the  suc- 
cessful party  may  take  the  property  if  it 
can  be  found,  and  so,  too,  the  unsuccessful 
party  may  return  it;  and  that  the  effect  of 
the   replevin   bond,   under   our   statute,   is, 
not  to  divest  either  the  title  or  the  lien  of 
the  other  party,  is  clear:  the  contest  is  as 
to  specific  personal  property;  the  recovery 
of  the  thing  itself,  and  not  damages  in  lieu 
thereof,  is  the  primary  object  of  the  suit; 
the  value  is  recovered  only  as  an  alterna- 
tive, when  delivery  of  the  specific  property 
f-annot    be   had,  and   if   the   title   could    be 
divested  by  delivery  of  the  rei)levin  bond, 
the  primary  object  of  the  suit  could  be  de- 
feated; the  unsuccessful  party  could  always 
make  his  election  to  keep  the  property  or 
pay    its    value;    but    this    advantage    was 
never  intended  to  be  given  by  the  statute, 
to    the    party    confessedly    in  the    wrong. 
Hunt  V.  Robinson,  11   Cal.  262;   Nickerson 
V.  Chattr-rton,  7  Cal.  ",08. 

Liability  of  sureties.     The  complaint  in 
an  action  on  a  replevin  bond  must  contain 


an  averment  that  the  value  was  found  by 
the  jury  or  the  court:  an  allegation  that 
neither  the  projterty  had  been  delivered, 
nor  the  mere  value  as  alleged  in  the  original 
complaint  had  been  paid,  is  not  sufficient; 
if  judgment  is  taken  in  the  alternative, 
and  the  defendant  fails  to  discharge  the 
judgment,  the  sureties  can  only  be  required 
to  pay  the  value  of  the  property,  and  the 
amount  of  damages  and  costs  awarded;  the 
plaintiff,  in  a  suit  against  the  sureties,  can- 
not recover  damages  for  detention  of  his 
property,  his  damages  being  the  legal  inter- 
est upon  the  amount  of  judgment;  and 
where  a  suit  against  the  sureties  is  not  for 
the  recovery  of  the  property,  they,  not 
being  in  possession,  cannot  be  held  respon- 
sible for  its  use  or  usable  value;  and  the 
plaintiff,  having  already  had  judgment  for 
the  delivery  of  the  property,  upon  which  he 
can  issue  his  execution,  and  under  which 
the  sheriff  can  take  the  property  itself,  has 
no  cause  to  sue  the  defendants  to  regain 
possession  of  the  property,  but  only  for  the 
amount  of  the  judgment.  Nickerson  v. 
Chatterton,  7  Cal.  568.  The  surety,  in  an 
action  upon  a  replevin  bond,  is  liable  to 
pay  a  judgment,  in  favor  of  the  defendant 
against  the  plaintiff,  for  the  value  of  the 
property.  Donovan  v.  ^^tna  Indemnity  Co., 
10  Cal.  App.  72;'.;  10.'^.  Pac.  36.5. 

Alternative  judgment.  The  alternative 
judgment  must  be  entered  in  the  original 
action,  in  order  to  determine  the  amount  to 
be  recovered  from  the  sureties.  Claudius  v. 
Aguirre,  89  Cal.  501;  26  Pac.  1077.  The  re- 
quirement of  the  alternative  judgment  for 
value  applies  only  to  cases  which  have 
been  submitted  to  and  passed  upon  by  the 
jury,  and  not  to  a  judgment  of  nonsuit,  or 
for  the  defendant  upon  the  sustaining  of 
the  demurrer;  therefore  the  defendant  may, 
in  such  case,  recover  the  value  of  the  pro]i- 
erty  from  the  sureties  on  the  replevin  bond, 
where  a  delivery  cannot  be  had,  without  a 
finding  of  value  in  the  original  action. 
Ginaca  v.  Atv/ood,  8  Cal.  446.  The  sureties 
are  only  bound  for  lawful  judgment  against 
their  principal,  and  such  judgment  must  be 
in  the  alternative,  that  the  successful  party 
may  have  delivery  of  the  property,  or  if 
that  cannot  be  had,  that  he  recover  the 
value  as  found  by  the  jury  and  stated  in 
the  judgment,  with  his  damages  and  costs. 
Nickerson  v.  Chatterton,  7  Cal.  568;  Ginaca 
V.  Atwood,  8  Cal.  446;  Clary  v.  Rolland,  24 
Cal.  147.  The  judgment  in  the  original 
case   fixes  the   value   of  the  property,  and 


485 


COMPLAINT — COSTS — SUFFICIENCY  OF  SURETIES, 


§513 


the  amount  of  damages  and  costs:  these 
constitute  the  limit  and  extent  of  the  lia- 
bility of  the  sureties;  and  where  the  plain- 
tiff can  be  compensated  in  damages,  he 
must  take  his  judgment  in  the  alternative, 
and  if  he  can  find  the  projierty,  he  can  take 
it;  if  not,  he  must  take  its  value,  and  he 
can  only  ask  the  sureties  to  make  good  the 
judgment:  they  cannot  be  held  to  do  more 
than  their  principal  is  required  to  do.  Nick- 
erson  v.  Chatterton,  7  Cal.  568.  Where 
property  taken  on  the  replevin  bond  from 
the  defendant  cannot  be  returned,  a  judg- 
ment for  its  value,  without  the  alternative, 
is  proper.  Donovan  v.  .i^Ctna  Indemnity  Co., 
10  Cal.  App.  723;  103  Pac.  365.  The 'sure- 
ties on  the  replevin  bond  are  not  released 
from  liability,  merely  because  the  judg- 
ment entered  was  not  in  the  alternative, 
and  did  not  direct  a  return  of  the  property 
taken  on  the  bond.  Donovan  v.  vl^^tna  In- 
demnity Co.,  10  Cal.  App.  723;  103  Pac. 
365. 

Complaint,  Material  parts  of  the  under- 
taking should  be  alleged  in  tlie  complaint, 
either  literally  or  according  to  their  legal 
effect;  and  a  description  of  the  undertak- 
ing, merely  that  it  corresponds  with  the 
provisions  of  a  certain  statute,  is  insutli- 
cient;  but,  as  the  defect  is  rather  of  form 
than  of  substance,  the  objection  must  be 
taken  by  demurrer.  Mills  v.  Gleason,  21 
Cal.  274.  The  complaint  on  an  undertak- 
ing, where  there  has  been  a  trial  and  judg- 
ment, must  show  tlie  value  found  by  the 
jury,  and  that  an  alternative  judgment  was 
entered  as  provided  bv  §  177  of  the  Prac- 
tice Act  (§  627,  post).  "^Clary  v.  Eolland,  24 
Cal.  147. 

Costs.  In  claim  and  delivery,  the  charge 
of  a  surety  company  for  a  replevin  bond  is 
not  a  proper  item  in  a  cost-bill.  Williams 
v.  Atchison  etc.  Rv.  Co.,  156  Cal.  140;  134 
Am.  St.  Eep.  117;' 19  Ann.  Cas.  1260;  103 
Pac.  885. 

Right  to  recover  value  of  property  in  action  on 
replevin  bond  for  breach  of  condition  to  prose- 
cute action.    See  note  4  Ann.  Cas.   Ii;j5. 

Recitals  in  replevin  bond  as  evidence  of  value 
in  action  on  bond.    See  note  18  Ann.  Cas.  113. 

Plaintiff's  undertaking  in  replevin  as  inuring  to 
benefit  of  third  person  adjudged  to  be  entitled  to 
property.    See  note  Ann.  Cas.   ISllil),   1106. 

Penalty  as  limit  of  recovery  on  replevin  bond. 
See  note  55  L.  K.  A.  390. 

Defects  or  irregularities  affecting  bond  as  a  de- 
fense to  action  on  replevin  bond  which  has  served 
its  purpose.    See  note  129  L.  K.  A.    ( N.  .S.)    74  7. 

Effect  upon  surety  on  replevin  bond  of  judg- 
ment against  principal.  See  note  40  L.  K.  A. 
(N.  S.)    744. 

CODE  COMMISSIOlfERS'  NOTE.  1.  Substan- 
tial compliance.  A  substantial  compliance  with 
the  provisions  of  this  section  is  sufficient.  Win- 
gate  V.  Brooks,  3  Cal.  112.  The  undertaking  is 
not  vitiated  bv   a   misreeital,    in   the   undertaking, 


of  the  date  on  whieh  the  uffidavit  was  filed.    Hyde 
V.   I'attirson.    1    Abb.   Pr.   ^^4H. 

2.  Generally.  The  fact  that  defendant  brought 
Ills  action  before  an  incompetent  tribunal  is  no 
defen.se  to  an  action  upon  the  undertakinc.  and 
the  plea  that  the  title  of  properly  so  replevied 
is  in  him,  is  bad.  McDermott  v.  Isbell,  4  Cal. 
113.  Where  the  defendant,  in  a  replevin  suit, 
failed  to  claim  the  return  of  the  property  in  his 
answer,  and  on  the  trial  the  jury  found  a  verdict 
for  the  defeiulatit,  on  which  the  court  rendered 
judgment  against  plaintiffs  for  costs,  whieh  was 
paid,  it  was  held  that  the  payment  of  the  judg- 
ment was  a  complete  discharge  of  plaintiffs'  sure- 
ties on  the  undertaking.  Chambers  v.  \Valers,  7 
Cal.  300.  A  recovery  cannot  be  had  on  a  bond 
inirporting  to  be  a  joint  bond  of  the  principal 
and  sureties,  but  signed  by  the  latter  only;  but 
it  is  otherwise  as  to  undertakings  under  our 
system.  They  are  original  and  independent  con- 
tracts on  the  part  of  the  sureties,  and  the  signa- 
ture of  the  principal  is  not  required.  Sacramento 
v.  Dunlap,  14  Cal.  421.  Where  the  plaintiff 
gives  the  statutory  undertaking,  and  takes  pos- 
session of  the  property,  and  is  afterwards  non- 
suited, and  jude-ment  entered  against  him  for  the 
return  of  the  properly  and  for  costs,  his  sure- 
ties are  liable  for  damages  sustained  by  defend- 
ant by  reason  of  a  failure  to  return  the  goods, 
but  not  for  damages  for  the  original  taking  and 
detention,  the  value  of  the  goods  not  having  been 
found  by  the  jury.  Ginaca  v.  Atwood,  8  Cal.  446. 
T.  cciuunenced  an  action  against  J.,  by  attach- 
ment: the  writ  was  levied  upon  certain  personal 
properly  by  the  plaintiff,  H.,  as  sheriff.  M.  J., 
wife  of  J.,  claimed  the  property  as  sole  trader, 
and  brought  her  action  of  replevin  for  the  prop- 
erty, and  obtained  possession  of  the  same  by  the 
delivery  of  an  undertaking.  The  undertaking  was 
e.xecuted  by  defendants  B.  and  S.  The  replevin 
suit  was  decided  in  February  5,  1855,  in  favor 
of  H.  T.  obtained  judgment  in  the  attachment 
suit  against  J.,  November  30,  1854.  On  the  18th 
of  February.  1855,  execution  in  favor  of  other 
creditors  of  J.  coming  into  the  hands  of  H.,  as 
sheriff,  he  levied  them  on  the  same  property,  and 
sulisequently  sold  the  properly  and  paid  the  pro- 
ceeds into  court.  H.  then  brought  this  suit 
ag.iinst  the  sureties  in  the  replevin  bond.  Held, 
that  the  lien  of  T.'s  attachment  continued  after 
the  replevy  of  the  goods  by  M.  .T. ;  that  the  pos- 
session obtained  by  the  plaintiff  in  replevin  is 
only  temporary,  and  does  not  divest  the  title  or 
discharge  the  lien.  Hunt  v.  Robinson,  11  Cal. 
262.  In  an  action  upon  the  undertaking,  the 
defendant's  liability  is  limited  to  the  damage  sus- 
tained by  a  failure  to  return  the  property;  there- 
fore, when  the  same  property  comes  into  the 
hands  of  H.,  as  sheriff,  the  condition  of  the  re- 
plevin bond  to  return  the  property  is  fulfilled. 
Id.  Where  the  action  is  dismissed  before  trial, 
the  liability  of  the  sureties  on  the  undertaking 
for  a  return  of  the  property  is  not  affected  by 
the  fact  that  before  the  dismissal  an  answer  had 
been  filed  in  which  no  return  of  the  property  was 
claimed.  Mills  v.  Gleason,  21  Cal.  274.  The 
dismissal  of  the  action  by  the  plaintiff  before 
trial  leaves  the  parties  to  settle  in  an  action 
upon  the  undertaking  those  matters,  including 
the  right  of  defendant  to  a  return  of  the  prop- 
erty, which,  had  the  original  suit  been  prose- 
cuted, must  have  been  determined  therein  in  the 
first  instance.  The  opportunity  to  obtain  a  judg- 
ment for  the  return  having  been  taken  away  by 
the  failure  to  prosecute,  defendant  is  entitled  to 
recover   in    an    action    on    the    undertaking.     Id. 

3.  New  undertaking.  If  the  undertaking  is 
defective,  the  court  will  allow  a  new  one  to  be 
given  nunc  pro  tunc.  Newland  v.  Willetts,  1 
Barb.  20. 


§  513.  Exception  to  sureties  and  proceedings  thereon,  or  on  failure  to  ex- 
cept. The  defendant  may,  within  two  days  after  the  service  of  a  copy  of 
the  affidavit  and  iindertakin<r,  pive  notice  to  the  sheriff  that  he  excepts  to 
the  sufficiency  of  tlie  sureties.     If  he  fails  to  do  so,  he  is  deemed  to  have 


§514 


CLAIM    AND    DEIJVERY    OF    PERSONAL    PROPERTY. 


486 


notice,"  (4)  "shall  be"  instead  of  "is,"  before 
"responsible,"  (5)  the  words  "as  above  provided" 
before  "or  until  they  justify." 

CODE  COMMISSIONERS'  NOTE.  Mere  formal 
defects  in  an  undertaking  may  be  cured  upon 
an  exception  thereto.    De  Reguie  v.  Lewis,  3  Rob. 

708. 


waived  all  objections  to  them.  When  the  defendant  excepts,  the  sureties 
must  justify  on  notice  in  like  manner  as  upon  bail  on  arrest;  and  the  sheriff 
is  responsible  for  the  sufficiency  of  the  sureties  until  the  objection  to  them 
is  either  waived  or  until  they  justify.  If  the  defendant  except  to  the  sure- 
ties, he  cannot  reclaim  the  property  as  provided  in  the  next  section. 

Justification  of  sureties.  See  ante,  §§  494,  495; 
post,  §  1057. 

Legislation  §  513.  Enacted  March  11,  18T3; 
based  on  Practice  Act,  §  103  (New  York  Code, 
§210),  which  had  (1)  the  words  "shall  be"^  in- 
stead of  "is,"  before  "deemed  to  have,"  (2)  "ob- 
jection" instead  of  "objections,"  before  "to  them," 
(3)    "shall"  instead  of  "must,"  before  "justify  on 

§  514.  Defendant,  when  entitled  to  redelivery.  At  any  time  before  the 
delivery  of  the  property  to  the  plaintiff,  the  defendant  may,  if  he  do  not  ex- 
cept to  the  sureties  of  the  plaintiff,  require  the  return  thereof,  upon  giving 
to  the  sheriff  a  written  undertaking,  executed  by  two  or  more  sufficient  sure- 
ties, to  the  effect  that  they  are  bound  in  double  the  value  of  the  property, 
as  stated  in  the  affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the 
plaintiff,  if  such  delivery  be  adjudged,  and  for  the  payment  to  him  of  such 
sum  as  may,  for  any  cause,  be  recovered  against  the  defendant.  If  a  return 
of  the  property  be  not  so  required  within  five  days  after  the  taking  and 
service  of  notice  to  the  defendant,  it  must  be  delivered  to  the  plaintiff,  ex- 
cept as  provided  in  section  five  hundred  and  nineteen. 

Sureties,  qualifications  of.  Ante,  §§  494,  495;  fendant  was  entitled  to  a  return  of  the 
post,  §  1057. 

Legislation  §  514.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  104  (New  York  Code, 
§  211),  which  had  the  words  "sliall  be"  instead  of 
"must,"  before  "be  delivered." 

Redelivery.  In  an  action  against  the 
sureties  on  the  replevin  bond,  it  is  neces- 
sary to  prove  that  the  property  was  de- 
livered to  the  party  requiring  it,  and  for 
whom  the  bond  was  given.  Nickerson  v. 
Chatterton,  7  Cal.  568.  A  defendant  in 
claim  and  delivery,  after  the  taking  of  the 
property  from  him  by  the  sheriff,  and  be- 
fore the  delivery  to  the  plaintiff,  sued  the 
sheriff  in  claim  and  delivery,  aud  had  the 
property  taken  from  him  by  an  elisor 
appointed  by  the  court,  whereupon  the 
sheriff,  as  defendant,  gave  a  redelivery 
bond,  and  upon  obtaining  the  property 
thereunder,  delivered  it  to  the  plaintiff  in 
the  original  suit,  in  which  nonsuit,  and 
judgment  for  the  defendant  for  costs, 
were  afterwards  granted;  under  this  state 
of  facts,  the  defendant  in  the  original 
suit  not  being  able  to  recover  the  prop- 
erty from  the  sheriff,  as  he  had  not  given 
the  bond  provided  for  in  this  section, 
which  alone  would  have  authorized  him 
to  demand  the  return  of  the  property 
taken  by  the  officer,  commenced  an  in- 
dependent action,  but,  as  the  taking  by 
the  sheriff  was  not  wrongful  or  unlawful, 
but  in  obedience  to  the  process  of  the 
court,  no  cause  of  action  existed  against 
him  when  the  suit  was  commenced;  and 
even  if  the  judgment  of  nonsuit  could  be 
construed  to  be  a  judgment  that  the  de- 


property  in  the  original  suit,  the  judg- 
ment against  the  sheriff  could  not  be  up- 
held, as,  prior  to  the  rendition  of  the 
judgment  of  nonsuit,  he  had,  in  strict  ac- 
cordance with  the  law  and  his  duty,  de- 
livered the  property  to  the  plaintiff  in  the 
original  suit;  hence,  the  judgment  therein 
should  command  the  plaintiff,  and  not  the 
sheriff,  to  return  the  property  or  pay  its 
value.  Fleming  v.  Wells,  65  Cal.  336;  4 
Pac.  197.  Claim  and  delivery,  where  the 
sheriff  has  taken  and  is  withholding  the 
possession  of  property,  is  the  proper  rem- 
edy, as  against  a  threatened  sale  by  a 
constable,  from  whose  possession  it  was 
taken  by  the  sheriff.  Richards  v.  Kirk- 
patrick,  53  Cal.  433. 

CODE  COMItnSSIONEES'  NOTE.  This  bond 
may  be  assigned  by  the  sheriff.  Wingate  v. 
Brooks,  3  Cal.  112.  In  an  action  on  this  bond, 
it  must  be  alleged  that  the  defendant  neither 
redelivered  the  property  nor  paid  the  value  there- 
of. Nickerson  v.  Chatterton,  7  Cal.  568:  Cham- 
bers V.  Waters,  7  Cal.  390.  In  an  action  on 
an  undertaking,  the  defendant's  liability  is  lim- 
ited to  the  damages  sustained  by  a  failure  to  re- 
turn the  propert}'.  Hunt  v.  Robinson,  11  Cal. 
262.  The  sureties'  only  bind  themselves  to  make 
good  any  judcment  that  plaintiff  may  lawfully 
obtain  against  defendant;  and  the  liability  of 
the  sureties  cannot  be  more  than  the  value  of 
the  property  fixed  by  the  judgment  in  the  origi- 
nal suit.  Nickerson  v.  Chatterton,  7  Cal.  563. 
In  an  action  against  the  sureties  on  the  under- 
taking, it  is  necessary  to  allege  and  prove  that 
the  property  was  delivered  to  the  party  requir- 
ing it,  and  for  v.-hom  the  bond  was  given.  Nick- 
erson V.  Chatterton,  7  Cal.  570.  An  undertaking 
ran  to  the  sheriff,  instead  of  to  the  party  to  be 
protected  by  it,  by  mistake,  and  then  corrected; 
this  did  not  invalidate  the  bond.  Turner  v. 
Billagram,  2  Cal.  522. 


487 


SURETIES — BAIL,   ETC. — PROPERTY,   HOW   TAKEN,   ETC.        §§515-519 


§  515.  Justification  of  defendant's  sureties.  The  defendant's  sureties, 
upon  notice  to  the  plaintiff  of  not  less  than  two  or  more  than  live  days,  must 
justify  before  a  judge  or  county  clerk,  in  the  same  manner  as  upon  bail  on 
arrest;  and  upon  such  justitication  the  sheriff  must  deliver  the  property  to 
the  defendant.  The  sheriff  is  responsible  for  the  defendant's  sureties  until 
they  justify,  or  until  the  justification  is  completed  or  waived,  and  may  re- 
tain the  property  until  that  time.  If  they,  or  others  in  their  place,  fail  to 
justify  at  the  time  and  place  appointed,  he  must  deliver  the  property  to  the 
plaintiff. 

Legislation  8  515.      Enacted   March    11,    1872;  CODE  COMMISSIONERS'  NOTE.      Manner  of 

based    on    J'ractipi'    Act,  §  105   (New    York    Code,  justification,    (iraham  v.   Wells,   18   How.  Pr.   376 

§202),   which   had    (1)    the   word    "shall"    instead  Liability  of  officer.    McKenzie  v.   Smith,  27  How 

of  "must,"  in  all  instances,   (2)   the  words  "shall  Pr.  20;  Gallarati  v.  Orser,  27  N.  Y.  324. 
be"    instead    of    "is,"    before    "responsible,"    and 
(3)  the  word  "expressly"  before  "waived." 

§516.  Qualification  of  sureties.  The  qualification  of  sureties  must  be 
such  as  are  prescribed  by  this  code,  in  respect  to  bail  upon  an  order  of 
arrest. 

Sureties,  qualifications  of.  Post,  §  1057;  ante,  tification  shall"  instead  of  "must,"  after  "sure- 
§§  49-1,  495.  ties,"    this    change    accountinj?    for    "qualification 

Legislation  §516.      Enacted  March    U.    1872;        ^..^.a  ^''"a^^-^lnst'rad^or-cod:.-' '"'^'    *"'    ^'^    ''^^ 
based    on    Practice    Act,  §  106   (New    York    Code, 
§  213),  which  had  (1)  the  words  "and  their  jus- 

§  517.  Property,  how  taken  when  concealed  in  building  or  inclosure.  If 
the  property,  or  any  part  thereof,  be  concealed  in  a  building  or  inclosure. 
the  sheriff  must  publicly  demand  its  delivery.  If  it  be  not  delivered,  he 
must  cause  the  building  or  inclosure  to  be  broken  open,  and  take  the  prop- 
erty into  his  possession ;  and,  if  necessary,  he  may  call  to  his  aid  the  power 
of  his  county. 

Duties  of  sheriff.    See  Pol.  Code,  §§  4175  et  seq.         §214),    which   had   the   word    "shall"    instead    of 
Legislation  S  517.     Enacted   March   11.   1873;        "must,"  in  both  instances, 
basod    on    Practice    Act,  §  107   (New    York    Code, 

§  518.  Property,  how  kept.  When  the  sheriff  has  taken  property,  as  in 
this  chapter  provided,  he  must  keep  it  in  a  secure  place,  and  deliver  it  to  the 
party  entitled  thereto,  upon  receiving  his  fees  for  taking  and  his  necessary 
expenses  for  keeping  the  same. 

Legislation  s  518.     Enacted  March  11,  1872;        of  record,  may  be  treated  as  evidence,  and 
t^lh^l^T^   (1)  "^l^^^^'^^n  ^:':-''       ^how  conclusive  delivery  of  the  property, 
instead  of  "has,"   after  "sheriff."    (2)   the  word       HoUenbach   V.  Schnabel.   101   Cal.  312;   40 
"shall"    instead    of    "must."    before    "keep,"    and         Am.  St.  Rep.  .57 ;  3.5  Pac.  872. 
(3)    the  word   "lawful"   before   "fees   for  taking."  ^^^^^  COMMISSIONERS'  NOTE.     The   sheriff 

Return  as  e''/ldence  of  delivery.  An  af-  must  use  more  than  ordinary  diligence  in  the 
fidavit  and  undertaking,  together  with  the  -•3^^  l7^^^^'^^:-^'239';""9^'^B;sw:'^l'58'rl^d.?lrd''s  o^^n 
sheriff's    return    thereon,    being    filed    and       Bailments,  p.  59. 

§  519.  Claim  of  property  by  third  person.  If  the  property  taken  be 
claimed  by  any  other  person  than  the  defendant  or  his  agent,  and  such  per- 
son make  affidavit  of  his  title  thereto,  or  right  to  the  possession  thereof, 
stating  the  grounds  of  such  title  or  right,  and  serve  the  same  upon  the 
sheriff,  the  sheriff  is  not  bound  to  keep  the  property  or  deliver  it  to  the 
plaintiff,  unless  the  plaintiff,  on  demand  of  him  or  his  agent,  indemnify 
the  sheriff  against  such  claim,  by  an  undertaking  by  two  sufficient  sureties ; 
and  no  claim  to  such  property  by  any  other  person  than  the  defendant  or 
his  agent  is  valid  against  the  sheriff  unless  so  made. 


§§  520-525 


INJUNCTION. 


488 


Legislations  519.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  109  (New  York  Code, 
S  216),  which  had  (1)  no  "the"  before  "posses- 
sion thereof,"  (2)  the  words  "shall  not  be"  in- 
stead of  "is  not,"  before  "bound  to  keep,"  (3) 
after  the  words  "sufficient  sureties,"  the  clause, 
"accompanied  by  their  affidavits  that  they  are 
each  worth  double  the  value  of  the  property  as 
specified  in  the  affidavit  of  the  plaintiif,  over  and 
above  their  debts  and  liabilities,  exclusive  of 
property  exempt  from  execution,  and  are  free- 
holders, or  householders  in  the  county";  and  (4) 
the  words  "shall  be"  instead  of  "is,"  before 
"valid  against." 

2.  Amendment  by  Stats.  1901,  p.  136;  un- 
constitutional.   See  note  ante,  §  5. 

Plaintiff's  bond  on  third-party  claim. 
A  sheriff  must  first  pay  the  judgment 
against  him,  before  he  can  maintain  an 
at-tion  on  an  undertaking  given  under 
this  section.     Lott  v.  Mitchell,  32  Cal.  23. 

CODE  COMMISSIONERS'  NOTE.  This  sec- 
tion   applies    only    when    the    property    has    been 


taken  by  the  officer  in  the  discharge  of  his  duty. 
King  V.  Orser,  4  Duer,  431.  If  the  officer  takes 
the  property  from  the  defendant  or  his  agent, 
the  process  is  a  complete  justification,  and  no 
action  lies  against  him.  Shipman  v.  Clark,  4 
Denio,  446:  47  Am.  Dec.  264:  Foster  v.  Petti- 
bone,  29  Barb.  350;  Stale  v.  Jennings,  14  Ohio 
St.  73;  Willard  v.  Kimball,  10  Allen,  211;  87 
Am.  Dec.  632.  But  if  he  takes  the  property  of 
a  person,  not  a  defendant  in  the  writ,  from  the 
true  owner,  an  action  lies.  King  v.  Orser,  4 
Duer,  431;  Stimpson  v.  Reynolds,  14  Barb.  506. 
If  the  officer's  proceedings  are  regular,  the  mode 
prescribed  by  this  section  is  the  only  mode  of 
making  a  valid  claim  by  a  third  person.  Edger- 
ton  V.  Ross,  6  Abb.  Pr.  189.  If  in  an  undertak- 
ing to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  defendant  in  the 
writ,  the  obligors  undertake  to  indemnify  him 
from  any  damage  he  may  sustain  by  reason  of 
any  costs,  suits,  .iudgments,  and  executions  that 
may  come  or  be  brought  against  him,  the  sheriff 
cannot  maintain  an  action  on  the  bond  because 
a  judgment  has  been  recovered  against  him, 
unless  he  first  pay  the  judgment.  Lott  v.  Mitchell, 
32  Cal.  23. 


§520.  Notice  and  affidavit,  "when  and  ■where  to  be  filed.  The  sheriff 
must  file  the  notice,  undertaking,  and  affidavit,  -with  his  proceedings  thereon, 
with  the  clerk  of  the  court  in  which  the  action  is  pending,  within  twenty- 
days  after  taking  the  property  mentioned  therein, 

the  court  may  avail  itself  of  it  in  deter- 
mining that  fact;  or  if  the  fact  has  not 
been  found,  in  determining  the  right  of 
the  defendant,  as  a  question  of  law,  to 
a  judgment  for  its  return.  Hollenbach  v. 
Schnabel,  101  Cal.  312;  40  Am.  St.  Rep. 
57;  35  Pac.  872. 


Legislation  §  520.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  110  (New  York  Code, 
§  217),  as  amended  by  Stats.  1854,  Redding  ed. 
p.  61,  Kerr  ed.  p.  87,  which  had  the  word  "shaU"' 
instead  of  "must,"  after  "sheriff." 

Return  as  evidence.  The  return  of  the 
sheriff  is  proper  evidence  of  the  posses- 
sion of  the  plaintiff,  and,  being  of  record, 


§  521.  Protection  of  plaintiff  in  possession  of  property.  After  the  prop- 
erty has  been  delivered  to  the  plaintiff  as  in  this  chapter  provided,  the  court 
shall,  by  appropriate  order,  protect  the  plaintiff  in  the  possession  of  said 
property  until  the  final  determination  of  the  action. 


Legislation  §  521.     Added  bv   Stats.    1913,  p. 
655. 

The   original    code  §  521    related    to    actions    on 


undertakings,   and  was  repealed  by  Code  Amdts. 
1873-74,  p.  306. 


CHAPTER  III. 

INJUNCTION. 


S  525.    Injunction,  what  is,  and  who  may  grant   it. 

§526.     When  it  may  be  granted. 

§  526a.  Actions  by  taxpayers  to  enjoin  illegal 
expenditure  or  waste  by  public  officers. 

S  527.  Injunction.  Notice.  Party  obtaining  or- 
der must  be  ready.  Defendant  entitled 
to  continuance.      Precedence. 

{  528.     Injunction  after   answer. 


§  529.     Security  upon  injunction. 

§  530.  When  injunction  for  use  of  water  may  be 
refused  upon  defendant  giving  bond. 

§  531.  Injunction  to  suspend  business  of  a  cor- 
poration, how  and  by  whom  granted. 

§  532.  Motion  to  vacate  or  modify  injunction. 
Bond  on  modification. 

§  533.     When  to  be  vacated  or  modified. 


§  525.  Injunction,  what  is,  and  "who  may  grant  it.  An  injunction  is  a 
writ  or  order  requiring  a  person  to  refrain  from  a  particular  act.  It  may 
be  granted  by  the  court  in  which  the  action  is  brought,  or  by  a  judge  thereof; 
and  when  granted  by  a  judge,  it  may  be  enforced  as  an  order  of  the  court. 


iDJunction. 

1.  Diaobedience  to,  is  contempt.  Post, 
Si  1209.     1210. 

2.  Limitations,  how  affected  by.     Ante,  §  356. 

3.  Proceedings   to   obtain.     Post,  §§  527-'i31. 

4.  Vacating  or  modifying.    Ante,  §§  532,  533. 

5.  Seal  necessary  to  writ  of.  Ante,  §  153, 
Bubd.    1. 

6.  Courts  and  judges  have  power  to  grant, 
on  any  day.  Ante,  {{  76,  134.  At  chambers. 
Ante,    ;  166. 


7.   Court    commissioners    have    no    power    to 
issue.     Ante,    §  259,    subd.    1. 

Legislation  8  525.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  111  (New  York  Code, 
§218),  which  had  (1)  the  words  "The  order  or 
writ"  instead  of  "It,"  before  "may  be  granted," 
and  (2)  did  not  have  the  word  "it"  before  "may 
be  enforced." 

2.  Amended  by  Code  Amdts.  1880,  p.  3,  (1) 
omitting  the  words  "or  by  a  county  judge"  after 


489 


JURLSDICTIONT — LAW  AND   EQUITY — FORM,  ETC. 


§525 


"judge  therpof,"  and  (2)  changing  the  word  "the" 
to  "an,"   lut'ore  "order." 

3.  Amendment  by  Stats.  1001,  p.  13G  ;  un- 
constitutional.   See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  340,  changing 
the  word  "made"  to  "granted,  before  "by  a 
judge." 

Jurisdiction.  Superior  courts  possess  the 
same  equity  jurisdietiou  as  was  possessed 
by  the  Euglish  chancery  courts.  Pasa- 
dena V.  Superior  Court,  157  Cal.  781;  21 
Ann.  Cas.  1355;  109  Pac.  620.  A  state 
court  has  concurrent  jurisdiction  with  a 
Federal  court  to  restrain  the  removal  of  a 
wharf  in  navigable  waters,  the  action  be- 
ing in  personam.  Crescent  City  Wharf  etc. 
Co.  V.  Simpson,  77  Cal.  286;  19  Pac.  4li(j. 

Injunction  preventive,  not  mandatory. 
The  mandatory  ingredient  found  in  nearly 
all  the  definitions  of  the  term  "injunc- 
tion," by  text-writers,  is  entirely  omitte<l 
from  the  definition  of  that  term  in  this 
section.  Gardner  v.  Stroever,  81  Cal.  148; 
6  L.  R.  A.  90;  22  Pac.  483.  An  injunction, 
though  restrictive  in  form,  if  it  has  the 
effect  of  compelling  the  performance  of  a 
substantive  act,  is  mandatory,  and  neces- 
sarily contemplates  a  change  in  the  rela- 
tive positions  or  rights  of  the  parties  from 
those  existing  at  the  time  the  injunction  is 
granted  or  the  decree  is  entered.  Stewart 
V.  Superior  Court,  100  Cal.  543;  35  Pac. 
156.  The  duty  of  the  court  is  to  protect 
a  party  in  the  enjoyment  of  his  private 
property,  not  to  license  a  trespass  there- 
upon, nor  to  compel  the  owner  to  exchange 
the  same  for  other  property  to  answer 
private  purposes  or  interests.  Gregory  v. 
Nelson,  41  Cal.  278.  The  court  cannot,  by 
mandatory  injunction,  require  of  the  de- 
fendant an  act  which  he  could  not  do 
without  making  himself  liable  to  others, 
not  parties  to  the  suit,  and  over  whom  it 
has  no  jurisdiction:  the  injunction,  in  such 
case,  should  be  prohibitory  only.  Dewey 
V.  Superior  Court,  81  Cal.  64;  22  Pac.  333. 
The  issuance  and  service  of  an  injunction 
restraining  a  party  from  moving  certain 
fixtures  from  land,  which  he  had  a  right 
to  move,  even  though  such  injunction  was 
afterwards  dissolved,  is  not,  in  itself,  con- 
version of  such  property.  Lacey  v.  Beau- 
dry,  53  Cal.  693. 

bistinction  between  law  and  equity  pre- 
served. The  distinction  between  law  and 
equity  is  as  naked  and  broad  as  ever:  the 
provision,  that  "there  should  be  but  one 
form  of  civil  action,"  extends  only  to  the 
form  of  action;  and  the  plaintiff  need 
only  state  his  cause  of  action  in  ordinary 
and  concise  language,  without  regard  to 
ancient  forms.  De  Witt  y.  Ilavs,  2  Cal. 
463;  56  Am.  Dec.  352.  The  writ  of  in- 
junction belongs  to  the  court  of  chancery 
exclusively;  and  although,  in  this  state, 
there  is  no  sej)arate  forum  for  the  a'ljudi- 
cation  of  chancery  cases,  yet  in  our  courts, 
having  chancery  jurisdiction,  the  rules 
and  principles  of  equity  jiractice  remain 
unaltered  and  the  writ  of  injunction  can 
only   be   issued  where  the   case   is   one  of 


equity  jurisdiction.  Minturn  v.  Hays,  2 
Cal.  590;  .-,(;  .\m.  Dec.  366. 

Order  by  judge  act  of  court.  An  ox 
parte  order  granting  an  injunction,  made 
by  a  judge  at  chambers,  is  virtually  the 
act  of  the  court,  and  may  be  enforced  in 
the  same  way  as  if  mailc  upon  notice.  Sul- 
livan v.  Triunfo  etc.  Mining  Co.,  33  Cal. 
385. 

Form  not  essential.  No  particular  form 
is  requisite  to  a  writ  of  injunction:  the 
substantial  thing  is  an  authentic  notifica- 
tion to  the  defendants  of  the  mandate  of 
the  judge,  which  they  must  obey.  Sum- 
mers V.  Parish^  10  Cal.  347. 

CODE  COMMISSIONEES'  NOTE.  1.  Form. 
No  particular  form  required.  It  is  sulticient  if 
the  defendant  receive  authentic  notice  of  the 
mandate  of  the  judge.  Summers  v.  Farish,  10 
Cal.  347. 

2.  By  a  judge  at  chambers.  An  injunction, 
granted  ex  parte  by  the  judge  at  chambers,  be- 
comes the  act  of  the  court,  and  may  be  enforced 
in  the  same  way.  Sullivan  v.  Triunfo  G.  &  S.  M. 
Co.,   33  Cal.   385. 

3.  County  judge  may  grant.  The  constitution- 
ality of  the  puwer  conferred  upon  county  judges 
considered  and  allirmed.  Thompson  v.  Williams, 
0  Cal.  8i>.  Cijunty  judges,  in  granting  injunc- 
tions upon  bills  tiled  in  the  district  court,  act  as 
injunction  masters,  and  are  exercising  a  power 
auxiliary  to  the  jurisdiction  of  the  district  court. 
The  effect  of  such  an  order  is  the  same  as  if 
made  by  the  district  court,  and  the  injunction  is 
subject  to  be  controlled,  modilied,  or  dissolved 
by  the  district  judge,  the  same  as  if  ordered  by 
him  in  the  first  instance.  Borland  v.  Thornton, 
12  Cal.  440;  Crandall  v.  Woods,  6  Cal.  449;  see 
Ward  V.  Preston,  23  Cal.  468.  An  injunction 
granted  by  a  county  judge  may  be  dissolved  or 
modified  Ijy  him.    Creanor  v.  Nelson,  23   Cal.  464. 

4.  When  a  court  or  judge  cannot  grant  an  in- 
junction. One  district  court  cannot  grant  an  in- 
junction to  restrain  the  execution  of  the  orders, 
or  decrees,  or  judgments  of  another  court  of  co- 
ordinate jurisdiction.  Rickett  v.  Johnson,  8  Cal. 
34;  Revalk  v.  Kraemer,  8  Cal.  66;  68  Am.  Dec. 
304;  Chipman  v.  liibbard,  8  Cal.  268;  Fhelan  v. 
Smith,  8  Cal.  520;  Corham  v.  Toomey,  9  Cal.  7"; 
Anthony  v.  Dunlap,  8  Cal.  26.  An  exception  to 
the  rule  is,  where  the  court  in  which  the  action 
or  proceeding  is  pending  is  unable,  by  reason  of 
its  jurisdiction,  to  afford  the  relief  sought,  as, 
for  instance,  where  several  fraudulent  judRmenla 
are  confessed  in  several  courts,  it  would  not  be 
necessary  for  a  creditor  to  bring  a  different  suit 
in  each  different  court.  Or,  where  the  provis- 
ions of  the  code  require  the  action  to  be  tried 
in  a  particular  county,  there  would  be  an  excep- 
tion, as  the  positive  provision  of  the  statute  must 
be  carried  out.  Uhlfelder  v.  Levy,  9  Cal.  697 ; 
Anthony  v.  Dunlap,  8  Cal.  26.  The  supreme 
court  cannot  grant  an  injunction,  pending' an  ap- 
peal. Hicks  v.  ilichael,  15  Cal.  107.  A  state 
court  cannot  enjoin  the  proceedings  of  a  United 
States  court.    Phelan  v.  Smith,  8  Cal.  520. 

5.  Generally.  It  is  not  necessary  that  the 
plaintiff  should  first  establish  his  title  at  law 
before  he  can  obtain  an  injunction.  Tuolumne 
Water  Co.  v.  Chapman,  8  Cal.  392.  Whether  a 
taxpayer  can,  by  injunction  to  restrain  the  per- 
formance of  a  ministerial  duty  cast  upon  public 
officers,  merely  upon  the  ground  that  the  effect, 
at  some  future  time,  if  certain  other  things  be 
done,  might  be  to  subject  his  property  to  taxa- 
tion, was  suggested,  but  not  decided,  in  Pattison 
v.  Board  of  Supervisors,  13  Cal.  175;  Duff  v. 
Fisher,  15  Cal.  375.  To  authorize  a  court  of 
equity  to  enjoin  a  judgment  at  law,  on  the  ground 
of  newly  discovered  facts,  the  proceeding  must 
be  taken  by  the  defendant  in  the  judgment  at 
law.  Mulford  v.  Cohn.  18  Cal.  42.  An  action  on 
the  case  will  not  lie  for  improperly  suing  out  an 
injunction,  unless  it  is  charged  in  the  complaint 
as  an  abuse  of  the  process  of  court,  through 
malice,  and  without  probable  cause.  Robinson  v. 
Kellum,  6  Cal.  399.     If  the  act  complained  of  is 


§  526  INJUNCTION.  490 

destitute    of    these    elements,    the    remedy    of    the  unlawful,   or  treat   such   an  act   a   disobedience   of 

injured  partv  is  on   the  undertaking.      Id.  its   provi.sions.     People   v.    Albany   etc.   R.   R.    Co., 

6.   Not   retroactive.      The   order   is   never   retro-  12   Abb.   Pr.   171;    20   How.    Pr.   358. 
active:   it   cannot  make   an   act   already  performed 

§  526.  When  it  may  be  granted.  An  injunction  may  be  granted  in  the 
following  cases: 

1.  When  it  appears  by  the  complaint  that  the  plaintiff  is  entitled  to  the 
relief  demanded,  and  such  relief,  or  any  part  thereof,  consists  in  restraining 
the  commission  or  continuance  of  the  act  complained  of,  either  for  a  limited 
period  or  perpetually ; 

2.  When  it  appears  by  the  complaint  or  affidavits  that  the  commission  or 
continuance  of  some  act  during  the  litigation  would  produce  waste,  or  great 
or  irreparable  injury,  to  a  party  to  the  action ; 

3.  When  it  appears,  during  the  litigation,  that  a  party  to  the  action  is 
doing,  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering  to  be  done, 
some  act  in  violation  of  the  rights  of  another  party  to  the  action  respecting 
the  subject  of  the  action,  and  tending  to  render  the  judgment  ineffectual; 

4.  When  pecuniary  compensation  would  not  afford  adequate  relief; 

5.  Where  it  would  be  extremely  difficult  to  ascertain  the  amount  of  com- 
pensation which  would  afford  adequate  relief; 

6.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity  of  judicial 
proceedings; 

7.  Where  the  obligation  arises  from  a  trust. 
An  injunction  cannot  be  granted : 

1.  To  stay  a  judicial  proceeding  pending  at  the  commencement  of  the 
action  in  which  the  injunction  is  demanded,  unless  such  restraint  is  necessary 
to  prevent  a  multiplicity  of  such  proceedings ; 

2.  To  stay  proceedings  in  a  court  of  the  United  States ; 

3.  To  stay  proceedings  in  another  state  upon  a  judgment  of  a  court  of 
that  state ; 

4.  To  prevent  the  execution  of  a  public  statute  by  officers  of  the  law  for 
the  public  benefit ; 

5.  To  prevent  the  breach  of  a  contract,  the  performance  of  which  would 
not  be  specifically  enforced ; 

6.  To  prevent  the  exercise  of  a  public  or  private  office,  in  a  lawful  manner, 
by  the  person  in  possession ; 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation. 

When    granted,    generally.     Civ.    Code,  §§  3422  mission  or  continuance  of  the  act  complained  of, 

et   sf-q.  either    for    a    limited    period    or    perpetually;    2. 

Where  obligation  arises  from  trust.    Civ.  Code,  When   it   shall   appear   by   the    complaint    or   affi- 

S  3-122.  davit  that  the  commission  or  continuance  of  some 

Illegal    payments    by    county,    enjoining.      See  act  during  the  litigation  would  produce  great  or 

Pol.  Code,  §  40O.Tb.  irreparable    injury    to    the    plaintiff;    3.   When    it 

Enjoining  nuisance.    Post,  §  731.  shall  appear  during  the  litigation  that  the  defend- 

Trade-mark,  use  of,  enjoined.    Pol.  Code,  §  3199.  ant  is  doing,   or  threatens,  or  is  about  to  do,   or 

Mortgage,   injunction  to  restrain  party  in  pos-  is  procuring  or  suffering  to  be  done,  some  act  in 

session  from  waste   during  foreclosure  of.    Post,  violation   of  the   plaintiff's   rights,   respecting  the 

{  74.0.  subject   of  the   action,   and  tending  to  render   the 

Disobeying    order    or    process,    contempt,    etc.  judgment    ineffectual."      When    enacted    in    1872, 

Post.  |§  1209,  1210.  (1)    in   subds.    1,   2,    3,   the  words   "shall   appear" 

Restraining  injurious   acts  of  executors,   pend-  were  changed  to  "appears,"   and    (2)    in  subd.   2, 

ing   proceeding   to   prove   lost   or   destroyed   will.  the  word  "waste"  was  added  after  "produce." 

See  post,  8  1341.  2.   Amendment    by    Stats.    1901,    p.    136;    un- 
constitutional.   See  note  ante,  §  5. 

Legialatlon  8  526.    1.  Enacted  March  11,  1872;  3.   Amended  by  Stats.  1907,  p.  341;  the  code 

based    on    Practice    Act,  §  112   (New    York    Code,  commissioner  saying,   "Subdivisions  2  and  3  have 

J  219;,     which     read:     "An     injunction     may     be  been  amended  so'  as  to  permit  the  application  for 

granted  in  the  following  cases:    1.    When  it  shall  an  injunction  to  be  made  by  parties  to  the  action 

appear  by   the   complaint   that   the  plaintiff   is  en-  other  than  plaintiff,  and  the  provisions  of  §§  3422 

titled  to  the  relief  demanded,   and   such   relief,   or  and   3423    of   the   Civil   Code   have   been  added  to 

any  part  thereof,  consists  in  restraining  the  com-  the  section." 


491 


RULE FALSE   CLAIM SUPERSEDEAS — APPEAL. 


S526 


No  strict  rule  governing  granting  of  in- 
junctions. Courts  of  c(juity  (Iccliiie  to  lay 
(iown  any  rule  which  will  limit  their  power 
and  (iiscretiou  as  to  the  particular  eases 
in  whieh  injunctions  shall  be  granted  or 
withheld:  it  is  impossible  to  foresee  all  the 
exigencies  of  society,  which  may  require 
their  aid  and  assistance  to  protect  rights 
and  redress  wrongs.  Merced  Mining  Co.  v. 
Fremont,  7  Cal.  317;  G8  Am.  Dee.  262. 
Where  an  injunction  is  justifiable,  the  is- 
suing of  th^  writ  is,  in  a  large  degree,  a 
matter  of  discretion,  which  should  be  ex- 
ercised in  favor  of  the  party  most  likely 
to  be  injured  (Eaisch  v.  Warren,  IS  Cal. 
App.  655;  124  Pac.  95);  but  rules  of  law 
cannot  be  relaxed,  in  order  to  relieve 
isolated  instances  of  hardship.  Collins  v. 
Butler,  14  Cal.  223. 

Complainant  must  have  clean  hands.  A 
person  coming  into  a  court  of  equity  for 
an  injunction  must  come  with  clean  hands 
and  without  any  lack  of  truth  in  his  own 
case:  he  cannot  be  granted  relief  upon  a 
claim  which  contains  a  false  representa- 
tion calculated  to  deceive.  Joseph  v.  Ma- 
cowskv,  96  Cal.  518;  19  L.  K.  A.  53;  31 
Pac.  914. 

Injunction  does  not  stay  time.  While 
the  acts  of  the  parties  are  restrained  by 
the  injunction,  yet  it  does  not  stay  the 
running  of  time,  nor  can  it  extend  the 
time  for  making  a  motion  for  a  new  trial. 
Elliott  V.  Osborne,  1  Cal.  396. 

Acquiescence  of  plaintiff  as  bar.  The 
statute  of  limitations  is  directly  applica- 
ble to  a  suit  in  equity;  and  a  court  of 
chancery  may  properly  refuse  to  grant  re- 
lief by  injunction,  where  the  plaintiff  has 
assented  to  the  acts  complained  of,  and 
their  consequences;  and  such  assent  may 
be  inferred  from  the  plaintiff's  acquies- 
cence with  full  knowledge  of  all  the  facts; 
and  further,  acquiescence,  proving  assent, 
may  bar  relief  in  equity,  although  not 
accompanied  by  all  the  circumstances 
which  would  make  it  an  estoppel  at  law; 
the  acquiescence  whieh  will  bar  a  com- 
plainant from  the  exercise,  in  his  favor, 
of  the  discretionary  jurisdiction  by  in- 
junction must  be  such  as  proves  his  assent 
to  the  acts  of  the  defendant,  and  to  the 
injuries  to  himself  which  have  flowed,  or 
can  reasonably  be  expected  to  flow,  from 
those  acts.  Lux  v.  Haggin,  69  Cal.  255;  4 
Pac.  919;  10  Pac.  674. 

Distinction  between  supersedeas  and  in- 
junction. A  writ  of  supersedeas,  or  order 
for  the  stay  of  proceedings  pending  an 
appeal,  is  limited  to  restraining  any  ac- 
tion upon  the  judgment  ajipealed  from, 
and  cannot  be  used  to  perform  the  func- 
tions of  an  injunction  against  the  ]iarties 
to  the  action,  restraining  them  from  any 
act  in  the  assertion  of  their  rights,  other 
than  to  prevent  them  from  using  the  pro- 
cess of  the  trial  court  to  enforce  the  judg- 
ment; nor  can  the  writ  be  employed  for 
any  purpose,  upon   persons   not   jiarties  to 


the  judgment.    Dnlin   v.  Pacific  Wood  etc. 
Co..  9S  Cal.  :i(i5;  I'..'!  I'ac.  IL'.'I. 

Effect  of  appeal  on  injunction.  The  dis- 
tinction between  the  etlect  of  an  apjieal 
from  a  judgment  in  staying  further  j)ro- 
ceedings  thereon,  and  its  effect  in  dei)riv- 
ing  the  judgment  itself  of  any  efiicacy  as 
evidence  of  the  fact  determined,  is,  that 
the  aiij)eal  suspends  the  force  of  the  judg- 
ment as  a  conclusive  determination  of  the 
rights  of  the  parties,  while  the  stay  of 
proceedings  consecjuent  upon  the  appeal 
is  limited  to  the  enforcement  of  the  judg- 
ment, and  does  not  destroy  or  impair  ita 
character.  Dulin  v.  Pacific  Wood  etc.  Co., 
98  Cal.  304;  33  Pac.  123.  The  purpose  of 
the  injunction  is  to  hold  the  subject  of 
litigation  in  statu  quo  until  a  final  de- 
termination; but  the  judgment  may  com- 
mand or  permit  some  act  to  be  done,  in 
which  case  a  stay  of  proceedings  will  be 
had,  although,  as  a  general  rule,  the  in- 
junction is  not  dissolved  or  suspended  by 
the  appeal.  Stewart  v.  Superior  Court, 
100  Cal.  543;  35  Pac.  156,  563.  An  in- 
junction restraining  interference  with  a 
person's  right  to  act  as  a  director  of  a 
corporation,  which  is  but  ancillary  and 
incidental  to  a  judgment  determining  that 
he  had  such  right,  although  preventive  in 
form,  is  in  effect  mandatory,  as  it  requires 
the  other  directors  to  recognize  him  as  one 
of  their  number,  and  to  refuse  to  recognize 
a  third  party,  and  as  that  portion  of  the 
judgment  declaring  the  jtarty  elected  is 
suspended  by  the  appeal,  the  injunctive 
portion  of  the  judgment,  being  merely  in- 
cidental, is  also  suspended,  and  the  j)ower 
of  the  court  to  enforce  any  part  of  its 
judgment,  by  inflicting  punishment  for  its 
violation,  is  stayed:  an  enforcement  of 
this  portion  of  the  judgment  would  oper- 
ate to  carry  the  decree  into  effect,  and 
would  change  the  relative  position  of  the 
parties  from  those  existing  at  the  time 
the  decree  was  entered,  and  might  render 
a  reversal  of  the  judgment  ineffectual. 
Foster  v.  Superior  Court,  115  Cal.  279;  47 
Pac.  58;  and  see  Stewart  v.  Superior 
Court,  100  Cal.  543;  35  Pac.  156,  563.  The 
office  of  the  writ  of  injunction  is  pecu- 
liarly preventive,  and  not  remedial;  to  re- 
strain the  wrong-doer,  not  to  punish  him 
after  the  wrong  has  been  done,  or  to  com- 
jiel  him  to  undo  it;  and  if  the  injunction, 
though  restrictive  in  form,  has  the  effect 
of  compelling  the  performance  of  a  sub- 
stantive act,  it  is  mandatory,  and  neces- 
sarily contemplates  a  change  in  the  rela- 
tive positions  or  rights  of  the  parties  from 
those  existing  at  the  time  the  injunction 
was  granted  or  the  decree  was  entered. 
Stewart  v.  Sujierior  Court,  100  Cal.  543; 
35  Pac.  156,  563.  The  ajipellate  court  will 
not  suspend  the  operation  of  a  judgment 
granting  a  perjietual  injunction,  pending 
an  appeal.  Swift  v.  Shepard,  64  Cal.  423; 
1  Pac.  493;  and  see  Pierced  Mining  Co.  v. 
Fremont,   7   Cal.    130.     Where   a   board   of 


§526 


INJUNCTION. 


492 


education  was  restrained  from  using  cer- 
tain text-books,  and  required  to  use  cer- 
tain others,  the  board,  pending  an  appeal 
from  the  judgment,  should  merely  be  re- 
quired to  remain  passive  and  take  no  ac- 
tion in  favor  of  or  against  either  system 
of  text-books.  Mark  v.  Superior  Court, 
129  Cal.  1;  61  Pac.  436.  Where  an  injunc- 
tion was  granted,  ordering  the  removal  of 
trade-signs,  and  prohibiting  the  use  of  a 
trade  name  thereon,  a  perfected  appeal 
stays  proceedings  as  to  the  mandatory 
portion  of  the  injunction,  but  has  no  such 
effect  upon  that  part  of  the  injunction 
which  is  merely  prohibitory.  Schwarz  v. 
Superior  Court,  111  Cal.  106;  43  Pac.  580. 
The  court,  after  judgment  for  the  defend- 
ant, denying  an  injunction,  may  issue  an 
order  restraining  him,  pending  the  deter- 
mination of  a  motion  for  a  new  trial. 
Pasadena  v.  Superior  Court,  157  Cal.  781; 
21  Ann.  Cas.  1355;  109  Pac.  620;  Pierce  v, 
Los  Angeles,  159  Cal.  516;  114  Pac.  818. 
Many  judgments  are  self-executing  or 
have  an  intrinsic  effect,  upon  which  there 
are  no  proceedings  to  be  stayed,  and 
which,  therefore,  would  not  be  affected 
by  an  appeal;  such  as  judgments  granting 
or  dissolving  an  injunction,  or  granting 
or  denving  a  divorce.  Dulin  v.  Pacific 
Wood  etc.  Co.,  98  Cal.  304;  33  Pac.  123. 
Where  the  plaintiff  is  entitled  to  and  ob- 
tains an  injunction  before  trial  in  the 
lower  court,  he  is  entitled  to  retain  it 
upon  the  cause  being  remanded  for  a  new 
trial.  Hess  v.  Winder,  34  Cal.  270.  The 
operation  of  a  restraining  order  is  not  ex- 
tended by  an  appeal  from  the  order  deny- 
ing the  injunction:  where  the  injunction 
is  refused,  there  is  nothing  operative,  and 
the  appeal  cannot  operate  to  create  an 
injunction,  under  any  circumstances.  Hicks 
V.  Michael,  15  Cal.  107.  A  process,  once 
discharged  and  dead,  is  gone  forever,  and 
it  never  can  be  revived,  except  by  a  new 
exertion  of  judicial  power:  it  cannot  be 
revived  by  any  act  of  the  party,  nor  by 
the  taking  of  an  appeal.  Hicks  v.  Michael, 
15  Cal.  107.  The  superior  court  has  no 
jurisiliction  to  punish  for  disobedience  of 
a  manilatory  injunction,  pending  an  ap- 
peal, though  it  may  punish  for  the  viola- 
tion of  a  prohibitory  injunction.  Dewey 
V.  Superior  Court,  81  Cal.'  64;  22  Pac.  333. 
Preservation  of  status  quo.  The  code 
provisions  regulating  injunctions  do  not 
curtail  the  general  grant  of  equity  power 
vested  in  the  superior  courts  by  the  con- 
stitution, nor  affect  tlieir  general  chancery 
power  to  preserve  the  status  quo  of  the 
subject-matter  of  the  litigation,  pending 
an  ai>peal.  Pasadena  v.  Superior  Court, 
157  Cal.  781;  21  Ann.  Cas.  1355;  109  Pac. 
620.  A  prohibitory  injunction  remains  in 
full  force,  pending  an  appeal,  and  the 
court  may  enforce  obedience  thereto;  but 
a  manilatory  injunction  is  stayed  by  the 
operation  of  the  aiqieal:  the  object  of 
the  rule,  in  both  cases,  is  to  preserve  the 


status  quo;  otherwise  the  result  of  the  final 
adjudication  might  often  be  a  bai'ren  vic- 
tory. Dewey  v.  Superior  Court,  81  Cal. 
64;  22  Pac.  333.  A  complaint  in  an  action 
for  a  partnership  accounting,  which  shows 
that  a  deceased  partner  was  indebted  to 
the  pjartnership,  but  had  caused  his  shares 
of  stock  in  a  corporation  defendant  and 
in  another  corporation,  both  of  which 
were  used  as  instrumentalities  of  the  part- 
nership, to  be  transferred  to  his  heirs  as 
a  gift  causa  mortis,  states  ^  ground  for 
relief  in  equity  against  the  administrator 
and  the  heirs,  who  may  be  restrained  from 
disposing  of  such  stock,  pending  the  set- 
tlement of  the  partnership  accounts. 
Raisch  v.  Warren,  18  Cal.  App.  655;  124 
Pac.  95.  The  superior  court  has  jurisdic- 
tion to  issue  an  injunction  in  a  divorce 
proceeding,  restraining  the  husband  from 
alienating  his  property,  pending  suit.  In 
re  White,  113  Cal.  282;  45  Pac.  323. 
Where  the  defendant  selected  public  lands 
under  a  contract  to  secure  them  for  the 
plaintiff,  the  latter  is  entitled  to  a  pre- 
liminary injunction,  in  a  suit  brought  by 
him  to  restrain  the  defendant  from  con- 
veying such  lands  to  another  party.  Far- 
num  V.  Clarke,  148  Cal.  610;  84  Pac.  166. 

To  prevent  waste.  A  court  of  equity  is 
always  more  ready  to  listen  to  an  applica- 
tion for  an  injunction  on  the  ground  of 
waste,  than  on  the  ground  of  trespass;  the 
old  rule  was,  that  an  injunction  to  prevent 
waste,  or  trespasses  in  the  nature  of 
waste,  could  only  be  granted  when  the 
parties  stood  in  the  relation  of  landlord 
and  tenant,  and  not  where  the  party  doing 
the  act  complained  of  was  a  mere  stranger; 
but,  upon  sound  principles,  this  rule  has 
been  relaxed;  for  in  many  cases  irreme- 
diable mischief  might  be  done  to  the  in- 
heritance if  an  injunction  were  refused. 
Hicks  v.  Michael,  15  Cal.  107.  The  distinc- 
tion between  waste  and  trespass,  so  far  as 
regards  the  power  of  the  court  to  grant  an 
injunction,  has  been  set  aside;  and  an  in- 
junction is  now  granted  in  all  cases  of 
timber,  coal,  ores,  and  quarries,  where  the 
party  is  a  mere  trespasser,  or  where  he  ex- 
ceeds the  limited  rights  with  which  he  is 
clothed,  on  the  ground  that  the  acts  are 
or  may  be  irreparable  damage  to  the  par- 
ticular species  of  property.  Merced  Min- 
ing Co.  V.  Fremont,  7  Cal.  317;  68  Am. 
Dec.  262.  At  common  law,  a  tenant  had 
no  redress  for  acts  of  admitteil  waste 
committed  by  his  co-tenant;  but  under  our 
statute,  a  tenant  may  now  recover  dam- 
ages from  his  co-tenant  in  every  case  of 
waste;  but  where  the  acts  complained  of 
are  not  wanton  and  destructive,  no  in- 
junction lies.  McCord  v.  Oakland  etc. 
Mining  Co.,  64  Cal.  134;  49  Am.  Rep.  686; 
27  Pac.  863.  Where  the  effect  of  the  act 
complained  of  would  be  to  impair  or  de- 
stroy the  substance  of  the  estate,  by  tak- 
ing from  it  sometliing  whicli  cannot  be 
rcjilaced,  it  may   be  enjoined,  irrespective 


493 


TO  PREVENT   WASTE — TRESPASS. 


§526 


of  the  ability  of  tlie  dpfeiulant  to  respond 
in  damages.  Ki'llogg  v.  Kiiifi,  114  Cal. 
378;  55  Am.  St.  Hop.  74;  4(5  Pac.  1G6. 
The  remedy  for  waste  is  ordinarily  at  law; 
but  where  the  relief  sought  is  for  the  pur- 
pose of  preserving  the  security  of  a  mort- 
gage, equity  will  interpose  by  injunction 
to  prevent  future  waste,  and,  in  the  same 
action,  an  accounting  will  be  decreed  and 
compensation  given  for  past  waste.  Mit(di- 
ell  V.  Amador  Canal  etc.  Co.,  75  Cal. 
464;  17  Pac.  24li.  A  trespass  in  the  nature 
of  waste,  which  goes  to  deprive  a  party 
of  {lart  of  his  inheritance,  should  be  re- 
strained by  injunction:  the  defendant 
might  be  able  to  pay  for  the  mischief 
done,  if  it  could  ultimately  be  proved  that 
his  acts  were  tortious;  but  if  anything 
is  to  be  abstracted  which  cannot  be  re- 
stored in  Pjtecie,  no  man  should  be  liable 
to  have  that  taken  away  which  cannot  be 
replaced,  merely  because  he  may  possibly 
recover  what  others  may  deem  an  equiva- 
lent in  money.  Hicks  v.  Michael,  15  Cal. 
107.  A  mortgagee  may  stay  the  commis- 
sion of  w-aste  on  the  mortgaged  premises, 
upon  a  showing  that  the  commission  of 
the  threatened  acts  will  materially  impair 
the  value  of  his  seeuritv  (Kobiuson  v. 
Eussell,  24  Cal.  467;  Buckout  v.  (Swift,  27 
Cal.  433;  87  Am.  Dec.  90;  Miller  v.  Wad- 
dingham,  91  Cal.  377;  13  L.  E.  A.  680;  27 
Pac.  750) ;  and  he  has  concurrent  reme- 
dies, •where  the  mortgagor  commits  waste 
upon  the  mortgaged  premises  so  as  to  im- 
pair the  security,  by  an  action  at  law  for 
damages,  or  by  a  suit  in  equity  for  an  in- 
junction to  prevent  threatened  damages 
(Laveuson  v.  Standard  Soap  Co.,  80  Cal. 
245;  13  Am.  St.  Kep.  147;  22  Pac.  184); 
but  he  cannot  maintain  a  suit  in  equity 
to  restrain  waste,  without  a  showing  that 
thereby  his  security  will  be  impaired. 
Miller  v.  Waddingham,  91  Cal.  377;  13 
L.  E.  A.  680;  27  Pac.  750;  Stowell  v.  Wad- 
dingham, 100  Cal.  7;  34  Pac.  436.  An 
averment  of  acts  which  impair  the  value 
of  the  securitj'  for  the  rent,  in  a  suit  to 
restrain  such  acts,  is  not  sufficient,  where 
the  only  showing  is  that  the  security  will 
be  lessened  in  value:  it  must  be  shown 
that  such  security  will  be  left  inadequate 
to  secure  the  rent.  Perrine  v.  Marsden, 
34  Cal.  14;  and  see  Buckout  v.  Swift,  27 
Cal.  433;  87  Am.  Dec.  90.  Although  not 
a  technical  waste,  a  jiarty  is  entitled  to 
an  injunction  against  the  removal,  beyond 
his  reach,  of  a  building  on  which  he  has 
a  lieu:  such  removal  would  destroy  his 
statutory  right,  and  deprive  him  of  his 
lien.  Barber  v.  Eeynolds,  33  Cal.  497.  An 
injunction  cannot  issue  to  prevent  waste, 
where  the  waste  had  already  been  com- 
mitted: an  injunction  cannot  issue  to  re- 
strain the  removal  of  buildings  from  land, 
after  the  buildings  have  been  removed, 
and  are  in  the  middle  of  a  public  high- 
way. Stowell  V.  Waddingham,  100  Cal.  7; 
34  Pac.  436.     An  entry  upon  land,  and  the 


iligging  uji  and  removal  of  fruit-trees 
growing  thereon,  is  waste,  and  an  injury 
to  the  inheritance,  which  a  court  of  equity 
may  enjoin.  Silva  v.  Garcia,  65  Cal.  591; 
4  Pac.  628.  Where  the  defendants  enter 
ujton  the  plaintiff's  ])roi»erty,  and  dig  up 
and  destroy  fruit-trees  and  ornamental 
shrubbery,  and  threaten  to  continue  such 
trespasses,  the  mere  fact  that  they  are 
willing  to  i)ay  for  the  i)roperty  is  imma- 
terial, in  view  of  the  fact  that,  from  the 
nature  of  such  property,  it  would  be  im- 
possible to  determine  its  value  in  money. 
Daubenspeck  v.  Grear,  18  Cal.  443.  The 
removal  of  pendent  fruit  and  growing 
nursery  stock,  by  a  mortgagor  in  posses- 
sion, is  not  an  act  from  which  irrejiarable 
injury  will  result:  full  and  adequate  dam- 
ages can  be  recovered  in  an  action  for 
trespass;  and  the  doing  of  such  acts  does 
not  materially  impair  the  value  of  the 
inheritance,  the  substance  of  the  realty. 
Eobinson  v.  Eussell,  24  Cal.  467. 

Prevention  of  trespass.  A  naked  tres- 
pass merely,  where  no  waste  is  committed, 
does  not  present  a  case  for  injunction. 
Nevada  County  etc.  Canal  Co.  v.  Kidd,  37 
Cal.  282.  An  ancient  rule  in  cases  of 
trespass  was,  that  a  court  of  equity 
would  not  interfere  by  injunction,  but 
left  the  party  to  his  remedy  at  law;  in 
modern  times,  this  doctrine  has  been  much 
relaxed,  and  although  the  general  rule  re- 
mains, yet  there  are  exceptional  cases 
where  equity  does  and  will  interpose,  but 
only  where  a  strong  case  is  made;  thus, 
it  will  interfere  to  quiet  possession  or 
to  prevent  a  multiplicity  of  actions,  or 
where  the  value  of  the  inheritance  is  put 
in  jeopardy,  or  where  irreparable  mischief 
is  threatened  in  relation  to  mines,  quar- 
ries, or.  woodland,  whether  the  same  re- 
sults from  the  nature  of  the  injury  itself 
or  from  the  insolvency  of  the  party  com- 
mitting it.  Leach  v.  Day,  27  Cal.  643. 
Equity  will  not  interpose  to  restrain  a 
trespasser,  simply  because  he  is  a  tres- 
passer and  is  insolvent:  other  facts  and 
circumstances  must  be  shown.  Mechan- 
ics' Foundry  v.  Eyall,  75  Cal.  601;  17  Pac. 
703;  California  Navigation  Co.  v.  Union 
Transportation  Co.,  122  Cal.  641;  55  Pac. 
591;  California  Navigation  etc.  Co.  v. 
Union  Transportation  Co.,  126  Cal.  433; 
46  L.  R.  A.  825;  58  Pac.  936.  A  trespass 
about  to  be  committed  by  a  defendant 
cannot  be  restrained  by  an  injunction, 
unless  the  injury  would  be  irreparable, 
which  could  only  be  upon  a  clear  show- 
ing of  the  plaintiff's  right  and  of  the  de- 
fendant's insolvency.  JMore  v.  Ord,  15 
Cal.  204.  An  injunction  ought  not  to  be 
granted  in  aid  of  an  action  of  trespass,  un- 
less it  appears  that  the  injury  will  be  ir- 
reparable, and  cannot  be  compensated  in 
damages  (Waldron  v.  Marsh,  5  Cal.  119); 
it  is  not  sufficient  simjdy  to  allege  the  fact 
that  the  injury  will  be  irre]iarable:  it  must 
be  shown  how  and  whv  it  will  be  so.    Ran- 


§526 


INJUNCTION. 


494 


dall  V.  Freed,  154  Cal.  299;  97  Pac.  669. 
Where  a  tresj)ass  already  comniitteil  would 
probably  be  repeated  indefinitely,  an  injunc- 
tion may  be  granted,  to  avoid  a  multiplicity 
of  actions.  Smithers  v.  Fitch,  8:2  Cal.  153 ; 
22  Pac.  935.  A  bona  fide  possession  of  the 
invaded  premises,  under  claim  and  color  of 
right,  is  sufficient  to  warrant  an  injunc- 
tion against  a  trespasser.  Kellogg  v.  King, 
114  Cal.  378;  55  Am.  St.  Rep.  74;  46  Pac. 
166.  An  injunction  will  issue  to  prevent 
acts  interfering  with  complainant's  ingress 
to  and  egress  from  his  dwelling,  such  as  the 
nailing  up  and  closing  of  gates,  and  the  cut- 
ting and  obstructing  of  water-pipes.  Zie- 
rath  V.  McCann,  20  Cal.  App.  561;  129 
Pac.  80S.  The  owner  of  a  private  wharf, 
in  possession  thereof,  is  entitled  to  a  per- 
petual injunction  restraining  the  construc- 
tion of  another  wharf  in  front  of  his, 
which  will  cut  his  wharf  off  from  the  navi- 
gable waters  of  the  bay,  unless  the  person 
constructing  the  same  shows  a  lawful 
right,  derived  from  competent  authority, 
to  do  so.  Cowell  v.  Martin,  43  Cal.  605. 
A  trespasser  on  the  premises  of  another, 
who  also  assumes  control  over  his  busi- 
ness, and  intercepts  money  due  to  him,  and 
holds  himself  out  to  the  public  as  a  part- 
ner having  the  right  to  do  these  things, 
may  be  restrained:  bodily  ejectment  from 
the  premises  would  not  necessarily  prevent 
the  continuance  of  such  injuries;  nor 
would  an  action  for  damages  afford  ade- 
quate relief,  because  of  the  difficulty  of  as- 
certaining, in  pecuniary  terms,  the  amount 
of  damages,  and  because  of  the  insolvency 
of  the  trespasser.  De  Groot  v.  Peters,  124 
Cal.  406;  71  Am.  St.  Rep.  91;  57  Pac.  209. 
A  complaint  alleging  that  the  trespass  was 
committed  under  a  pretended  claim  of 
right  of  way  over  the  plaintiff's  land,  by 
virtue  of  a  pretended  order  of  a  board  of 
supervisors  opening  and  establishing  a 
private  road  for  the  defendant's  use,  and 
that  the  defendant  threatens  to  tear  down 
the  plaintiff's  fences  as  often  as  the  plain- 
tiff erects  the  same,  is  not  sufficient  to 
warrant  an  injunction,  where  no  reasons 
are  given  why  the  plaintiff  has  not  an  ade- 
quate and  complete  remedy  at  law.  Leach 
v.  Day,  27  Cal.  643.  An  injunction  will  lie 
against  a  trespasser  to  restrain  the  raising 
of  the  level  of  a  street,  in  the  absence  of 
anything  to  show  that  the  defendant  was 
proceeding  under  legal  authority;  and  the 
fact  that  the  defendant  is  solvent  does  not 
defeat  the  plaintiff's  right,  as  the  acts 
complained  of  constitute  such  an  obstruc- 
tion of  the  plaintiff's  easement  in  the 
street  as  to  constitute  a  permanent  injury 
to  the  inheritani-c,  and  would  ripen  into  a 
right  if  permitted.  Schaufele  v.  Doyle,  86 
Cal.  107;  24  Pac.  834.  An  injunction  will 
not  lie  for  a  trespass  committed  on  land, 
where  the  plaintiff  is  wholly  disseised,  and 
the  defendant  is  in  adverse  pos.session. 
Kaffetto  v.  Fiori,  50  Cal.  363;  Felton  v. 
Justice,   51    Cal.   529.     Although    the   wild 


game  of  the  state  belongs  to  the  people  in 
their  sovereign  capacity,  and  is  subject 
to  private  dominion  only  by  authority  of 
the  legislature,  yet,  within  the  provisions 
of  the  statute  prescribing  in  what  cases 
individual  ])ro])rietorship  therein  mav  ex- 
ist, the  individual  owner  is  as  much  to  be 
protected  in  the  enjoyment  of  his  rights  in 
this  species  of  property  as  in  any  other, 
under  the  law:  any  person  violating  such 
rights  is  a  trespasser,  and  may  be  en- 
joined. Kellogg  V.  King,  114  Cal.  37S;  55 
Am.  St.  Rep.  74;  46  Pac.  166.  The  pay- 
ment of  damages  is  a  condition  precedent 
to  the  creation  of  the  right  of  a  city  to 
change  a  natural  watercourse,  to  the  dam- 
age of  the  plaintiff's  property:  without  such 
payment,  the  city  is  a  mere  trespasser,  and 
injunction  is  the  plain,  ordinary,  and  best 
remedy.  Geurkink  v.  Petaluma,  112  Cal. 
306;  44  Pac.  570.  A  technical  trespass, 
committed  by  the  business  agent  of  a 
labor  council,  in  entering  upon  the  prem- 
ises of  the  plaintiff,  for  the  purpose  of 
calling  the  men  out  on  a  lawful  strike,  is, 
in  the  absence  of  any  threatened  repeti- 
tion of  the  act,  not  a  ground  for  an  in- 
junction. Parkinson  Co.  v.  Building  Trades 
Council,  154  Cal.  581;  21  L.  R.  A.  (N.  S.) 
550;   16  Ann.  Cas.  1165;  98  Pac.  1027. 

Nuisances.  An  injunction  may  be  granted 
to  prohibit  the  defendant  from  permitting 
Ms  premises  to  be  occupied  as  a  house  of 
prostitution.  Farmer  v.  Behmer,  9  Cal. 
App.  773;  100  Pac.  901.  In  order  to  ob- 
tain an  injunction  to  restrain  obstructions 
of  public  highways,  the  injury  complained 
of  must  be  special  in  character,  and  not 
merely  greater  in  degree  than  that  of  the 
general  public.  Biglev  v.  Nunan,  53  Cal. 
403;  Payne  v.  McKinley,  54  Cal.  532; 
Crowley  v.  Davis,  63  Cal.  460.  Where  the 
court  finds  that  a  nuisance  exists  and  is 
continuous,  the  issuance  of  an  injunction 
is  justified,  although  not  specifically  prayed 
for  in  the  complaint.  Sullivan  v.  Rover, 
72  Cal.  248;  1  Am.  St.  Rep.  51;  13  Pac.  (355. 

To  prevent  irreparable  injuries.  An  in- 
junction is  never  granted,  unless  the  bill 
shows  seme  vested  right  in  the  plaintiff', 
which  is  likely  to  suffer  great  or  irrep- 
arable injury  from  the  act  complained  of; 
the  mere  allegation  of  such  injury  is  in- 
sufficient: the  facts  stated  must  satisfy 
the  court  that  such  apprehension  is  well 
founded.  Branch  Turnpike  Co.  v.  Board  of 
Supervisors,  13  Cal.  190.  Not  every  case 
in  which  a  property-owner  deems  himself 
liable  to  be  injured  will  justify  the  issu- 
ance of  an  injunction;  and  courts  will  not 
grant  a  preliminary  restraining  order  or 
injunction,  unless  it  is  made  to  appear 
that  damages  might  result.  Geurkink  v. 
Petaluma,  112  Cal.  306;  44  Pac.  570. 
Where  the  plaintiff  has  a  right  of  way  for 
a  ditch  upon  the  surface  and  the  defend- 
ant has  a  right  to  mine  in  the  bowels  of 
a  mountain,  such  rights  are  not  necessarily 
incompatible,   and   the  defendant   will   not 


495 


IRREPARABLE  INJURY — REMEDY   AT  LAW  INADEQUATE, 


§526 


be  enjoined  from  so  mining,  even  though 
the  destruction  of  the  jilaintiff's  ditch  is 
threatened.  Clark  v.  Willett,  35  Cal.  5;U. 
A  riparian  owner  is  entitled  to  have  the 
water  of  the  stream  flow  over  his  land  in 
its  usual  volume,  and  also  in  its  natural 
purity;  and  the  jtollution  of  the  stream  by 
the  defendant  so  as  substantially  to  im- 
pair its  value  for  the  ordinary  purposes 
of  life,  and  render  it  measurably  unfit  for 
domestic  purposes,  is  an  actionable  nui- 
sance; and  the  fact  that  the  defendant  is 
a  municipal  corporation  does  not  enhance 
its  rights  nor  palliate  its  wrongs  in  this 
respect.  Peterson  v.  Santa  Eosa,  119  Cal, 
387;  51  Pac.  557.  An  action  by  the  owner 
of  land,  in  possession  thereof,  to  enjoin 
the  removal  of  machinery,  engines,  der- 
ricks, and  tramways,  attached  to  the  soil, 
■will  be  sustained,  upon  the  presumption  of 
ownership  arising  from  the  possession 
thereof,  even  if  the  property  be  consid- 
ered as  personal  property,  in  the  absence 
of  proof  of  other  ownership  thereof,  Nolan 
V.  Eostler,  ]35  Cal.  261;  67  Pac.  127. 
Where  a  defendant,  pending  negotiations  of 
his  employer  for  a  renewal  of  the  lease  of  the 
premises  occupied  by  him  for  business  pur- 
poses, uses  his  knowledge  of  his  employer's 
business,  and  secretly,  with  another,  se- 
cures a  lease  of  such  premises  for  himself 
and  such  other,  the  plaintiff  employer,  in 
an  action  to  compel  the  transfer  of  the 
lease,  is  entitled  to  an  injunction,  pendente 
lite,  to  restrain  the  defendant  from  pro- 
ceeding to  recover  the  premises.  Gower  v. 
Andrew,  59  Cal.  119;  43  Am.  Rep.  242.  A 
creditor  holding  a  certificate  of  stock  as 
collateral  security  has  no  right  to  enjoin 
the  sale  thereof  under  execution,  after  at- 
tachment and  judgment,  where  he  did  not 
have  such  stock  transferred  on  the  books 
of  the  company.  Farmers'  Nat.  Bank  v. 
Wilson,  58  Cal.  600.  An  injunction  will 
issue  to  prohibit  the  continuance  of  a  use 
that  obstructs  one  in  the  free  vise  and  en- 
joyment of  his  land,  where  such  use,  if  con- 
tinued, will  ripen  into  an  easement.  Vestal 
V.  Young,  147  Cal.  715;  82  Pac.  381,  The 
plaintiff  is  entitled  to  an  injunction  upon 
the  jileadings,  where  an  alteration  in  the 
mode  and  manner  of  using  an  easement  is 
so  substantial  as  to  result  in  the  creation 
and  substitution  of  a  difTerent  servitude 
from  that  which  previously  existed;  and  it 
is  immaterial  that  a  benefit  to  the  plaintiff 
will  accrue  by  reason  of  the  acts  com- 
plained of.  Allen  V.  San  Jose  Land  etc.  Co., 
92  Cal.  138;  15  L.  R.  A.  93;  28  Pac.  215. 
Where  the  injury  threatened  is  irreparable, 
and  goes  to  the  substance  of  the  inheri- 
tance, it  is  a  matter  of  indifference  whether 
the  plaintiff  is  in  or  out  of  possession. 
More  V.  Massini,  32  Cal.  590. 

Where  remedy  at  law  inadequate.  An 
adequate  remedy  at  law  existing  by  mo- 
tion, and  having  been  pursued,  a  court  of 
equity  will  not  grant  an  injunction  to  re- 
strain    the     collection     of     the     judgment. 


Reagan  v.  Fitzgerald,  75  Cal.  230;  17  Pac. 
19H.  The  assistance  of  equity  cannot  be 
invoked,  so  long  as  the  remedy  by  motion 
exists;  but  when  the  time  within  which  a 
motion  may  be  made  has  ex|)ired,  and  n< 
laches  or  want  of  diligence  is  imj)utable  tc 
the  party  asking  relief,  there  is  nothing  in 
reason  or  pro])riety  to  prevent  the  inter- 
ference of  equity.  Bibend  v.  Kreutz,  20 
Cal.  109;  Ede  v.  Hazen.  61  ('al.  360.  Courts 
of  equity  interfere  to  do  justice,  only  when 
common  law  tribunals  are  incapable  of  ren- 
dering it,  and  seldom  or  never  interfere  to 
give  effect  to  a  mere  technical  right:  there 
must  be  substantial  merit.  (Iregorv  v. 
Ford,  14  Cal.  138;  73  Am.  Dec.  639.  Where 
the  efforts  of  the  defendant  to  reilress  the 
injury  complained  of  were  thwarted  by  the 
conduct  of  the  plaintiff,  and  no  sufficient 
reason  appears  why  the  remedy  offered  was 
not  accepted,  which  was  plain,  speedy,  and 
adequate,  an  injunction  is  properly  refused 
to  prevent  the  wrong,  which  is  otherwise  ir- 
remediable. Richardson  v.  Eureka,  110  Cal. 
441;  42  Pac.  965.  Where  the  judgment  of 
a  justice's  court  is  void  on  its  face  for 
want  of  jurisdiction,  an  adequate  remedy 
exists  by  motion  in  that  court  to  arrest 
execution  and  stay  further  process  on  the 
judgment,  and  an  injunction  to  restrain  an 
execution  on  such  judgment  will  be  denied. 
Gates  v.  Lane,  49  Cal.  266.  Only  in  equity, 
and  by  means  of  an  injunction,  can  relief 
be  had  from  continuous  wrongful  acts  and 
consequent  infringement  of  rights;  and  it 
is  not  necessary  to  prove  damages.  Moore 
V.  Clear  Lake  Water-Works,  68  Cal.  146;  8 
Pac.  816.  A  court  of  law  has  ample  power 
to  afford  speedy  and  adequate  relief,  where 
judgment  and  execution  are  void  on  their 
face;  and  the  court  has  entire  control  over 
process,  and  can  arrest  it,  and  also,  upon 
proper  application,  has  authority  to  order 
suspension  of  the  execution  of  the  writ 
until  a  motion  before  the  court  to  recall  or 
quash  it  can  be  heard.  Sanchez  v.  Carriaja, 
31  Cal.  170.  A  perpetual  injunction  against 
a  judgment  will  not  be  allowed  on  grounds 
which  could  have  been  set  up  as  a  legal 
defense  in  the  action  at  law.  Agard  v. 
Valencia,  39  Cal.  292.  Plaintiffs,  for  their 
laches  in  not  taking  advantage  of  their 
adequate  and  speedy  legal  remedy  by  mo- 
tion to  recall  the  execution  on  judgment, 
are  not  entitled  to  an  injunction  restrain- 
ing an  execution  on  the  judgment;  a  formal 
action  is  unnecessary,  as  well  as  expensive 
and  dilatory,  where  a  motion  in  court 
would  reach  the  same  end:  where  the  in- 
jured party  has  an  adequate  and  speedy 
remedy  at  law,  he  is  not  entitled  to  the  as- 
sistance of  a  court  of  equitv.  Moulton  v. 
Knapp,  85  Cal.  385;  24  Pac.  803.  Where 
the  rights  of  a  lienholder  to  have  the  prem- 
ises sold  to  satisfy  his  lien  were  directly 
adjudicated  against  the  plaintiff,  he  can- 
not avail  himself  of  any  matter  which 
he  might  have  pleade<l  in  defense  of  the 
action  to  foreclose  the  lien,  and  cannot  en- 


526 


INJUNCTION. 


496 


join  the  sheriff  from  making  the  sale,  on 
the  ground  that  at  the  time  of  the  com- 
mencement of  the  action  the  premises  were 
his  homestead,  to  the  prejudice  of  the 
plaintiff  in  the  former  suit,  who  is  not  a 
partv  to  the  action  for  the  injunction. 
Eucker  v.  Langford,  138  Cal.  611;  71  Pae. 
1123.  Where  no  reason  is  given  why  a 
plaintiff  could  not  obtain  all  the  relief  to 
which  he  is  entitled  in  a  pending  action, 
an  injunction  does  not  lie.  Eichards  v. 
Kirkpatriek,  53  Cal.  433;  and  see  Leach  v. 
Day,  27  Cal.  643;  Eahm  v.  Minis,  40  Cal. 
421.  The  remedy  by  injunction  to  restrain 
the  enforcement  of  a  satisfied  judgment  is 
proper,  notwithstanding  the  court  in  which 
the  judgment  was  rendered  may  have  the 
power  to  grant  the  same  relief,  upon  mo- 
tion to  stav  the  execution.  Thompson  v. 
Laughlin,  91  Cal.  313;  27  Pae.  752.  The 
mere  fact  that  one  has  a  right  of  action  at 
law  does  not  prevent  his  right  to  equitable 
relief  by  way  of  injunction  against  a 
threatened  trespass,  if,  under  the  circum- 
stances, the  legal  remedy  would  fail  of 
affording  adequate  relief  against  the  im- 
pending wrong:  the  remedy  by  injunction 
may  be  invoked  to  restrain  acts,  or  threat- 
ened acts,  of  trespass  in  any  instance, 
where  such  acts  are  or  maj'^  be  an  irrep- 
arable damage  to  the  particular  species  of 
property  involved;  and  in  such  case,  the 
solvency  or  insolvency  of  the  wrong-doer 
is  immaterial:  the  nature  of  the  injury, 
and  not  the  incapacity  of  the  party  to  re- 
spond in  damages,  determines  the  right. 
Kellogg  v.  King,  114  Cal.  378;  55  Am.  St. 
Eep.  74;  46  Pae.  166. 

Inadequacy  of  pecuniary  relief.  In  de- 
termining the  right  of  a  party  to  an  in- 
junction after  a  verdict  in  his  favor  by  a 
court  of  law,  the  court  will  consider  the 
relative  loss  to  either  party,  the  character 
of  the  property  for  which  protection  is 
sought,  the  character  of  the  locality  in 
which  the  nuisance  exists,  and  whether  the 
injury  is  properly  compensable  in  damages. 
Peterson  v.  Santa  Eosa,  119  Cal.  387;  51 
Pae.  557.  "Where  a  judgment  was  obtained 
after  a  declaration  of  homestead,  and  an 
attachment  was  levied  upon  the  premises 
before  the  filing  of  the  declaration,  such 
judgment,  not  being  founded  uj)on  a  debt 
secured  by  a  mortgage  or  other  lien,  can- 
not be  enforced,  and  an  injunction  lies  to 
restrain  a  threatened  execution  sale  there- 
under. McCracken  v.  Harris,  54  Cal.  81.  A 
perpetual  injunction,  issued  under  a  void 
statute,  against  the  condemnation  of  prop- 
erty, where  no  notice  was  given  the 
owners,  or  comj)ensation  tendered,  is  not 
operative  when  the  proper  steps  are  taken 
and  the  right  is  secured.  Curran  v.  Shat- 
tuck,  24  Cal.  427.  An  injury  to  a  right  in 
land  results,  where  a  person  wrongfully 
causes  water  to  flow  upon  the  land,  over 
which  it  would  not  flow  naturally;  and 
such  injury  cannot  be  continued  because 
other  7)er8ons  have  a  low  estimate  of  the 


damages  which  it  causes:  the  right  to  an 
injunction,  in  such  case,  does  not  depend 
upon  the  extent  of  the  damage,  measured 
by  a  money  standard.  Learned  v.  Castle, 
78  Cal.  454;  18  Pae.  872;  and  see  Eichards 
V.  Dower,  64  Cal.  62;  28  Pae.  113;  Moore 
V.  Clear  Lake  Water-Works,  68  Cal.  146; 
8  Pae.  816;  Lux  v.  Haggin,  69  Cal.  255;  10 
Pae.  674;  Walker  v.  Emerson,  89  Cal.  456; 
26  Pae.  968.  The  owner  of  lower  land  is 
entitled  to  an  injunction  restraining  the 
wrongful  acts  of  an  upper  landowner,  in 
flooding  the  lower  land,  notwithstanding 
the  absence  of  evidence  of  any  specific 
monetary  damage  occasioned  thereby.  Gal- 
breath  V.  Hopkins,  159  Cal.  297;  113  Pae. 
174. 

Amount  of  injury  immaterial.  Because 
the  injury  is  incapable  of  ascertainment, 
or  of  being  computed  in  damages,  so  that 
only  nominal  damages  can  be  recovered,  it 
does  not  follow  that  such  injury  is  trifling 
or  inconsiderable:  that  the  injury  is  un- 
ascertainable,  and  in  that  sense  inappre- 
ciable, may  be  a  good  reason  why  an  in- 
junction should  issue.  Heilbron  v.  Fowler 
Switch  Canal  Co.,  75  Cal.  426;  7  Am.  St. 
Eep.  183;  17  Pae.  535.  Where  the  injury 
is  only  occasional  and  the  damage  small, 
and  accidental,  rather  than  a  probable  and 
necessary  consequence  of  the  acts  com- 
plained of,  an  injunction  will  be  denied: 
each  case  must  be  governed  by  the  cir- 
cumstances that  surround  it,  and  by  rela- 
tive equities.  Peterson  v.  Santa  Eosa,  119 
Cal.  387;  51  Pae.  557.  Where  a  city  has, 
at  great  expense,  developed  water,  a  great 
portion  of  which  it  had  the  right  to  take, 
and  the  plaintiff  knew  of  such  expense, 
and  that  some  of  its  water  might  be 
drained,  and  the  amount  so  drained  is  com- 
paratively small,  the  judgment  should,  in 
equity,  make  that  amount  good  by  a  res- 
toration of  it,  either  by  mandatory  injunc- 
tion or  in  some  equitable  manner,  rather 
than  prohibitively  to  enjoin  the  city  from 
taking  any  water.  Montecito  Valley  Water 
Co.  V.  Santa  Barbara,  144  Cal.  578;  77  Pae. 
1113.  In  granting  an  injunction,  the  court 
must  consider  the  amount  of  injury  which 
may  be  thereby  inflicted  on  strangers  ta 
the  suit  and  third  parties.  Santa  Cruz  Fair 
etc.  Ass'n  v.  Grant,  104  Cal.  306;  37  Pae. 
1034. 

Statement  of  irreparable  injury.  The 
simple  allegation  of  irreparable  injury  is 
not  suflScient  to  obtain  an  injunction:  it 
should  appear  from  the  facts  set  forth  in 
the  bill  (De  Witt  v.  Hays,  2  Cal.  463;  56 
Am.  Dec.  352) ;  nor  is  the  mere  allega- 
tion that  irreparable  injury  will  result 
sufficient:  it  must  be  shown  how  and  why 
it  will  be  so  (Mechanics'  Foundry  v.  Eyall,. 
75  Cal.  601;  17  Pae.  703);  nor  is  a  general 
averment  as  to  the  injury  caused  or  to  be 
caused  by  the  acts  of  the  defendant  suffi- 
cient, without  setting  out  the  facts  show- 
ing how  or  why  the  supposed  injury  will 
be  irreparable.    California  Navigation  Co. 


497 


STATEMENT  OF  INJURY — INSOLVENCY  OF  DEFENDANT. 


526 


V.  Union  Traiis]»ortation  Co.,  122  Cal.  641; 
55  Pac.  591.  An  averment  that  the  de- 
fendant is  doiii;^',  and  threatening  to  con- 
tinue, acts  which  will  destroy  the  jdaintiii's 
growinfj  crops,  and  will  render  valueless 
ten  acres  of  valuable  land,  shows  a  case 
of  irreparable  injury,  and  an  injunction 
should  issue.  Schneider  v.  Brown,  85  Cal. 
205;  24  Pac.  715.  While  the  rule  is,  that 
facts  must  be  stated  to  justify  the  con- 
elusion  of  irreparable  injury,  yet  in  the 
case  of  mines,  timber,  and  quarries,  the 
statement  of  the  injury  is  sufficient;  in 
such  cases,  all  the  party  could  well  state 
would  be  the  destruction  of  the  timber  or 
the  taking  away  of  the  minerals;  the 
taking  away  of  minerals  is  itself  an  in- 
jury that  is  irreparable,  because  it  is  a  tak- 
ing away  of  the  substance  of  the  estate. 
Merced  Mining  Co.  v.  Fremont,  7  Cal.  317; 
68  Am.  Dec.  262.  The  allegations  of  the 
complaint  must  show  that  the  injury  to  be 
sustained  cannot  be  adequately  compen- 
sated b}'  damages,  or  that  it  is  irremedi- 
able, or  that  it  will  lead  to  irremediable 
injury,  to  entitle  a  party  to  an  injunction 
in  a  case  of  nui.sance  (Middlcton  v.  Frank- 
lin, 3  Cal.  238);  and  the  complaint  must 
show  special  damage  to  the  plaintiff;  and 
facts  must  be  stated  to  show  that  the  ap- 
prehension of  injury  is  well  founded 
(Payne  v.  McKinley,  54  Cal.  532;  Crowley 
V.  Davis,  63  Cal.  460) ;  and  some  vested 
right  in  the  plaintiff,  which  is  likely  to 
suffer  great  or  irreparable  injury.  Branch 
Turnpilve  Co.  v.  Board  of  Supervisors,  13 
Cal.  190.  A  party  seeking  to  enjoin  a 
public  officer  from  the  performance  of  an 
official  duty  should  show  by  distinct  aver- 
ments that  the  threatened  acts  of  the  of- 
ficer will  interfere  with  his  rights  to  such 
an  extent  as  to  cause  him  some  irreparable 
injurv.  Santa  Cruz  Fair  Bldg.  Ass'n  v. 
Grant,  104  Cal.  306;  37  Pac.  1034.  An  al- 
legation, that  the  effect  of  preparing  a 
levee  will  be  to  dam  up  the  waters  and 
increase  the  same  in  volume,  until  the 
levee  will  break  and  permit  the  waters 
to  flow  down  to  and  upon  plaintiff's 
land  and  destroy  the  fences  and  trees 
thereon,  is  simply  an  expression  of  opinion, 
and  affords  no  reason  in  law  for  arresting 
the  work  by  injunction.  Hoke  v.  Perdue, 
62  Cal.  545.  A  general  averment,  that  the 
defendant,  by  its  acts,  "has  caused  and 
does  cause  to  the  jdaintiff  continuous  and 
daily  damage,"  being  insufficient  to  show 
any  irreparable  injury  whatever,  cannot 
be  in  any  way  aided  or  helped  out  by  a 
further  averment,  that  to  recover  the 
amount  of  such  damages  "will  require  a 
multiplicity  of  judicial  proceedings."  Cali- 
fornia Navigation  Co.  v.  Union  Transpor- 
tation Co.,  122  Cal.  641;  55  Pac.  591. 
Where  the  complaint  alleged  that  the  de- 
fendant dug  a  mining-ditch  above  one 
previousl}'  constructed  by  the  plaintiff,  and 
had  thereby  diverted  the  water  of  the 
stream  from  the  plaintiff's  ditch,  but  did 
1  Fair. — 32 


not  aver  that  the  injury  was  continuing, 
or  threatened  to  be  continueil,  or  likely 
to  be  continueil,  sufficient  is  alle^ied  for 
the  reco\ery  of  damages,  but  not  to  sus- 
tain an  injunction:  the  writ  of  injunction, 
though  remedial,  must  be  based  uj)on  some 
equitable  circumstances.  Coker  v.  Simp- 
son, 7  Cal.  340;  an<l  see  Ball  v.  Kehl,  87 
Cal.  505;  25  Pac.  679. 

Insolvency  of  defendant.  Where  there 
is  no  averment  in  the  complaint  that  the 
defenilant  is  insolvent,  and  no  showing 
that  the  wrongs  comr>lained  of  are  irrepa- 
rable, or  destructive  of  the  plaintiff's 
estate  in  its  nature  and  substance,  nor  that 
they  are  not  susceptible  of  adequate  com- 
peYisation  in  damages,  facts  sufficient  to 
warrant  the  interposition  of  a  court  of 
equity  are  not  stated.  Mechanics'  Foundry 
v.  Ryall,  62  Cal.  416.  Where  the  case 
made  by  the  V)ill  for  an  injunction  to  re- 
strain the  defendant  from  taking  posses- 
sion of  real  estate  does  not  show  irrep- 
arable damages,  nor  allege  insolvency  of 
the  defendant,  nor  any  trespass,  but  only 
the  fear  of  it,  nor  show  that  there  was  no 
adequate  remedy  at  law,  but  averreji  plain- 
tiff's title  to  the  property  and  his  posses- 
sion, the  remedy  of  injunction  cannot  be 
properlv  invoked  and  maintained.  Tomlin- 
son  V.  Kubio,  16  Cal.  202.  The  fact  that 
the  work  sought  to  be  enjoined  is  of  a 
public  nature,  affecting  the  public  con- 
venience, and  that  there  is  no  doubt  of  the 
defendant's  ability  to  respond  in  damages, 
are  important  matters  in  determining  the 
right  to  an  injunction.  Bigelow  v.  Los 
Angeles,  85  Cal.' 614;  24  Pac.  778.  The  rule 
established  under  a  system  which  per- 
mitted imprisonment  for  debt,  and  there- 
fore gave  more  etTiciency  to  the  remedy  at 
law,  should  be  received  with  some  modi- 
fications under  our  system;  the  reason  of 
the  rule  being  modified,  the  rule  itself 
should  receive  corresponding  qualification; 
in  practice,  it  is  generally  difficult  to 
prove  insolvency,  except  after  the  return 
of  an  officer  upon  execution;  practical 
men  hesitate  to  rely  upon  the  personal 
responsibility  of  the  imlividual  for  com- 
pensation for  serious  injuries,  and  it  com- 
ports more  with  substantial  justice  to  both 
parties  to  restrain  the  trespass,  rather 
than  to  leave  the  plaintiff  to  ])ursue  his 
remedy  at  law.  Merced  Mining  Co.  v.  Fre- 
mont, ^7  Cal.  317;  68  Am.  Dec.  262.  Where 
the  plaintiff  alleges  and  proves  that  the 
title  to  a  growing  crop  is  in  himself,  and 
that  the  defendant  is  insolvent,  he  is  en- 
titled to  an  injunction  to  restrain  the  de- 
fendant from  harvesting  and  removing  it. 
W^st  V.  Smith,  52  Cal.  322.  In  order  to 
sustain  an  injunction  to  j)revent  the  re- 
mo^■al  of  a  crop,  it  is  sufficient  to  show  the 
inability  of  the  defendant  to  respond  in 
damages:  absolute  and  complete  insolvency 
need  not  be  shown.  Paige  v.  Akins,  112 
Cal.  401;  44  Pac.  666.  The  rule  that  tres- 
jiass  upon  real  estate  cannot  be  enjoined. 


§526 


INJUNCTION. 


498 


because  a  purely  legal  remedy  sufEces  for 
the     plaintiff's  "redress,     does     not     apply 
where    the    trespasser    is    insolvent,    and 
takes  hay  belonging  to  the   plaintiff   and 
feeils    the    same    to    live-stock:     replevin 
■would   be   an   insufficient  remedy,   because 
a  portion  of  the  hay  would  be  consumed 
before  the  writ  could  be  served,   and  the 
insolvency  of  the   defendant   would   make 
a  judgment  for  its  value  worthless.   Eohrer 
V.   Babcock,    114   Cal.    124;    45    Pac.    1054. 
Where  it  is  merely  alleged  that  the  plain- 
tiff  will   be   damaged   in   the   sum   of   five 
thousand  dollars,  and  there  is  no  allegation 
that  the   defendant  is  not  responsible  for 
that  sum,  nor  that  there  will   be   any   ex- 
traordinary   impediment    in    the    way    of 
recovering  that  sum  by  an  action  at  law, 
there   is  no   ground   stated   for   an   injunc- 
tion.   Gardner  v.  Stroever,  81  Cal.   148;   6 
L.  R.  A.  90;  22  Pac.  483.     The  insolvency 
of    the    defendant    need    not    be    alleged, 
where  the  gravamen  of  the  complaint  is  a 
threatened  trespass  upon  land,  in  the  na- 
ture  of   waste,   which   will   be    committed 
unless  the  defendant  is  restrained,  and  if 
permitted,   the   plaintiff   will   be   deprived 
of  a  part  of  his  inheritance,  which  could 
not  be  specifically  replaced.    More  v.  Mas- 
sini,    32    Cal.    590.     The    solvency    of    the 
defendant  is  an   immaterial   circumstance, 
where    the    injury    is    irreparable;    and    a 
finding   that   the  injury   would   not   be   ir- 
reparable   is    inconsistent    with    a    finding 
showing   the    permanent    character    of   the 
work.    Eichards  v.  Dower,  64  Cal.   62;   28 
Pac.  113.     Where  an  injunction  .is  sought 
to   restrain   irreparable   injury   to   the   in- 
heritance, from  a  trespass  in  the  nature  of 
waste,  the   complaint  need  not  allege  the 
insolvency  of  the  defendant.   Crescent  City 
Wharf  etc.  Co.  v.  Simpson,  77  Cal.  286;  19 
Pac.  426.     The  allegation  of  insolvency  is 
not  necessary  to  procure  an  injunction  in 
cases  of  trespass  upon  mines,  timber,  and 
quarries:  the  right  to  the  remedy  is  based 
upon    the    nature    of    the    injury,    and   not 
upon   the   incapacity   of   the   party   to   re- 
Bjiond  in  damages.    Merced  Mining  Co.  v. 
Fremont,    7    Cal.    317;    68    Am.    Dec.    262. 
Where  the  defendant  was  removing  a  crop, 
with  intent  to  defraud  the  plaintiff  of  his 
share,   due   for   rent,   a   bill   of   complaint 
that   does  not   aver  either  the  insolvency 
of  the  defendant  or  that  he  is  without  any 
tangible  property  which  could  be  made  the 
subject   of   execution,   is   too   defective   to 
sustain   an  order  for  an  injunction.    Greg- 
ory v.  'Hay,  3  Cal.  332.     Where  a  judgment 
creditor   brings   a   bill    to   reach    equitable 
assets,  he  must  aver  insolvency,  or,  what 
is  equivalent  to  it,  an  e.xecution  returned 
nulla    bona :    insolvency,    in   such    cases,    is, 
per  se,  a  condition  of  relief,  a  fact  with- 
out whif-h  a  court  of  equity  can   have  no 
jurisdif^^tion   to   act  in    the   given  instance, 
an  ultimate  fact  to  be  jiroved;   hence  the 
necessity    that    it    be    averred.     Hager    v. 
Shindlcr,    29    Cal.    47;    and    see    Harris    v. 
Taylor,  15  Cal.  348. 


Interference  with  water  rights.  An  in- 
junction lies  to  restrain  a  threatened 
permanent  interference  with  water  rights, 
whether  percolating  or  riparian.  Bonetti 
V.  Ruiz,  15  Cal.  App.  7;  113  Pac.  118.  The 
diversion,  by  a  mere  intruder,  of  the 
waters  of  a  canal,  by  means  of  a  ditch 
constructed  across  the  land  of  the  owner 
of  the  canal,  may  be  enjoined  by  the  owner 
as  an  injury  to  his  right:  the  right  to  an 
injunction  does  not  depend  upon  the  ex- 
tent of  the  damage,  measured  by  a  money 
standard,  and  is  not  defeated  by  a  finding 
that  the  plaintiff  has  not  been  actually 
damaged  by  the  water  taken.  Walker  v. 
Emerson,  89  Cal.  456;  26  Pac.  968.  The 
right  to  the  use  and  enjoyment  of  prop- 
erty is  sufficient  to  have  the  right  pro- 
tected against  invasion  by  another,  and 
the  ownership  of  property  carries  with  it 
the  right  to  any  lawful  enjoyment  thereof, 
either  by  using  it  or  by  disposing  of  it  to 
others:  it  is  not  necessary  to  allege  in  a 
complaint  to  enjoin  the  diversion  of  water, 
that  the  plaintiff  is  in  a  position  to  use 
the  water  himself,  or  that  he  is  in  any 
position  which  gives  him  a  right  to  fur- 
nish water  to  others.  Moore  v.  Clear  Lake 
Water-Works.  68  Cal.  146;  8  Pac.  816; 
Conkling  v.  Pacific  Improvement  Co.,  87 
Cal.  296;  25  Pac.  399.  Where  the  diver- 
sion, by  the  defendant,  of  the  water  of  a 
stream  is  against  the  superior  right  of  the 
plaintiff,  and  to  the  extent  of  depriving 
the  latter  of  all  the  water  to  which  he  is 
entitled,  it  is  not  necessary  to  prove  dam- 
ages, to  entitle  him  to  an  injunction.  Mott 
V.  Ewing,  90  Cal.  231;  27  Pac.  194.  The 
plaintiff's  right  to  an  injunction  does  not 
depend  upon  the  amount  of  injury  he  has 
received:  being  a  riparian  owner,  he  has 
a  right  to  the  flow  of  the  entire  stream, 
as  against  any  diminution  thereof  by  one 
not  a  riparian  owner;  and  the  claim  of  a 
defendant,  that  he  has  a  right  to  divert  a 
portion  of  its  flow  authorizes  the  plain- 
tiff to  invoke  the  aid  of  equity,  in  order 
that  this  claim  mav  not  ripen  into  a  right. 
Gould  V.  Eaton,  117  Cal.  539;  38  L.  R.  A. 
181;  49  Pac.  577;  and  see  Moore  v.  Clear 
Lake  Water-Works,  68  Cal.  146;  8  Pac. 
816;  Stanford  v.  Felt,  71  Cal.  249;  16  Pac. 
900.  An  allegation  in  the  complaint  in 
an  action  to  restrain  the  defendants  from 
diverting  the  waters  of  a  stream,  that  the 
defendants  wrongfully  claim  some  pre- 
tended and  fictitious  right  to  the  use  of 
water,  does  not  prejudice  the  right  of  the 
plaintiff  to  an  injunction.  Tuolumne  Water 
Co.  v.  Chapman,  8  Cal.  392.  Where  the 
defendant  wrongfully  obstructed  the  flow 
of  water  into  the  plaintiff's  ditch,  and 
threatened  to  continue  to  do  so,  the  plain- 
tiff was  entitled  to  a  perpetual  injunction, 
without  ])roof  of  riamagcs.  Spargur  v. 
Heard,  90  Cal.  221  ;  27  Pac.  198. 

Injunction  where  right  depends  on  dis- 
puted questions  of  law.  Where  the  right 
for  which  protection  is  sought  is  dependent 
upon  disputed  questions  of  law  which  have 


499 


DISPUTED  QUESTIONS   OP  LAW — INJURY    MUST  BE  EXISTING. 


§526 


never  been  settled  by  the  courts  of  this 
state,  and  conpcriiiiig  which  there  is  an 
actual  and  existing;  disiiutc,  eiiuity  will 
withhold  relief  until  the  questions  of  law 
have  been  determined  by  the  })ro|ior  court. 
Hughes  V.  Dunlap,  91  Val.  i-iS.');  27  Pac. 
642.  The  circumstances,  the  conscijuences 
of  the  action,  and  the  real  equity  of  the 
case,  will  be  considered  by  a  court  of 
chancery,  before  intcrj)osing  by  injunc- 
tion, even  after  the  right  has  been  estab- 
lished at  law.  Peterson  v.  Santa  Rosa, 
119  Cal.  387;  51  Pac.  5o7.  Where  the  title 
of  the  plaintiff  is  disputed  by  the  answer, 
courts  have  frequently  held  that  an  in- 
junction cannot  be  granted  until  the  final 
hearing  of  the  cause;  but  there  is  no  case 
holding  that  a  legal  doterminatiou  of  the 
question  of  title,  or  pcuiioncy  of  suit  for 
that  purpose,  is  essential  to  the  equitable 
jurisdiction  of  the  court;  the  usual  practice 
has  been  to  ask  the  assistance  of  equity  in 
such  cases,  in  aid  of  an  action  at  law; 
but  there  are  many  cases  in  which  the 
powers  of  a  court  of  equity  have  been  in- 
voked in  the  first  instance.  Hides  v. 
Michael,  1.5  Cal.  107;  San  Antonio  Water 
Co.  V.  Bodenhamer,  133  Cal.  248;  65  Pac. 
471.  The  only  object  in  establishing  title 
at  law  is  to  show  that  the  right  is  in  the 
plaintiff;  the  suit  at  law  is  only  a  means 
to  accomplish  a  given  end,  and  when  that 
end  is  already  obtained,  there  is  no  reason 
for  doing  an  idle  thing;  and  if  the  title 
of  the  plaintiff  is  conceded,  there  is  no 
need  of  a  trial  at  law  to  establish  what  is 
already  admitted.  Tuolumne  Water  Co.  v. 
Chapman,  8  Cal.  392.  Where  the  title  of 
the  plaintiff  is  disputed,  and  no  action  at 
law  has  been  brought,  the  practice  has 
generally  been  to  direct  an  issue  to  be 
tried  by  a  court  of  law  and  to  await  the 
action  of  such  court  u])on  the  issue  so 
directed;  the  jurisdiction  in  such  cases  rests 
upon  the  ground  of  irreparable  mischief, 
and  the  policy  of  preventing  a  multiplicity 
of  suits,  the  remedy  at  law  being  entirely 
inadequate  as  a  means  of  redress.  Hicks 
V.  Michael,  15  Cal.  107.  A  strong  showing 
must  be  made  before  the  court  will  grant 
or  sustain  an  injunction  to  stop  work; 
there  must  be  urgent  necessity,  and  the 
title  and  right  of  the  plaintiff  be  clear, 
well  established,  and  not  in  disjiute;  and 
the  application  should  be  made  promptly, 
and  not  delayed  until  large  expenditures 
have  been  made.  Real  Del  Monte  etc.  Min- 
ing Co.  v.  Pond  etc.  Mining  Co.,  23  Cal.  82. 
Injury,  or  threats  of  injury,  must  be 
present  and  existing.  An  injunction  can- 
not be  granted  to  allay  the  fears  and  ap- 
prehensions of  individuals:  they  must 
show  that  the  acts  against  which  they  ask 
protection  are  not  only  threatened,  but 
will  in  all  probability  be  committed,  to 
their  injury;  it  must  also  be  shown  that 
there  is  at  least  a  reasonable  probability 
that  a  real  injury  will  occur  if  the  in- 
junction should  not  be  granted.    Loreuz  v. 


Waldron,  96  Cal.  213;  31  Pac.  54.  No  one 
may  ;,'o  into  a  court  without  having  some 
riglit  to  enforce  or  wrong  to  redress;  mere 
o])ithets,  however  profusely  used  or  ve- 
hemently exjtressed,  will  not  supply  the 
place  of  facts  in  a  pleading;  facts  must 
be  stated,  showing  that  a  right  or  wrong 
exists;  heme,  a  com;  l.iint  for  an  injunc- 
tion is  insuflicient,  which  does  not  allege 
that  the  plaintiff  has  been  damaged,  nor 
state  facts  from  which  such  a  concdusion 
can  be  drawn.  Wolfe  v.  Titus,  124  ('al. 
264;  56  Pac.  1042.  An  injunction  applies 
only  to  a  threatened  injury:  it  has  no  ap- 
plication to  wrongs  that  have  been  com- 
])letcd,  and  for  which  the  injured  party 
may  obtain  redress  in  an  action  at  law. 
Parkinson  Co.  v.  Building  Trades  Council, 
154  Cal.  581;  21  L.  R.  A.  (N.  S.)  550;  16 
Ann.  Cas.  1165;  98  Pac.  1027.  The  doing 
of  an  act  that  has  already  been  performed 
will  not  be  restrained.  Wright  v.  Board  of 
Public  Works,  163  Cal.  328;  125  Pac.  353. 
It  is  not  necessary  to  show  that  injury  is 
inevitable,  to  enable  the  plaintiff  to  main- 
tain an  action  for  an  injunction:  such  a 
rule  would  jirevent  relief  in  a  large  class 
of  cases,  where  the  interposition  of  a  court 
is  absolutely  necessary  to  prevent  great 
and  irreparable  injury;  even  in  plain  cases 
it  would  seldom  be  possible  to  know  that 
injury  was  certain  to  occur;  that  it  is 
very  probable,  should  be  made  to  appear 
by  the  statement  of  facts,  from  which  the 
court  will  be  able  to  conclude  the  injury 
probable.  Nicholson  v.  Getchell,  96  Cal. 
394;  31  Pac.  265.  A  prayer  for  an  injunc- 
tion to  prevent  a  future  injury  is  proper, 
where  a  suit  is  brought  to  test  the  ques- 
tion of  priority  of  appropriation  of  water. 
Marius  v.  Bicknell,  10  Cal.  217.  Where  the 
acts  complained  of  were  committed  before 
the  commencement  of  the  action,  and  there 
w^as  no  allegation  of  threats  on  the  part 
of  the  defendant  to  do  any  other  further 
act  or  otherwise  injure  the  plaintiff,  there 
is  no  foundation  for  a  merely  preventive 
injunction.  Gardner  v.  Stroever,  81  Cal. 
148;  6  L.  R.  A.  90;  22  Pac.  483.  A  plain- 
tiff, claiming  to  be  the  owner  of  a  mining 
location,  is  not  entitled  to  an  injunction 
to  restrain  the  defendant  from  mining 
thereon,  Avhere  the  defendant  has  not 
mined  tliereon  and  does  not  threaten  to  do 
so.  Champion  Mining  Co.  v.  Consolidated 
Wyoming  etc.  Mining  Co.,  75  Cal.  78;  16 
Pac.  513.  A  complaint  which  alleges  that 
the  defendant  has  agreed  to  furnish  the 
plaintiff  with  a  certain  quantity  of  water, 
and  is  about  to  enter  into  similar  contracts 
with  others,  which,  in  the  aggregate,  will 
be  beyond  the  cai)acity  of  his  resources, 
does  not  show  that  the  plaintiff  has  been 
or  will  be  injured,  and  does  not  entitle 
him  to  an  injunction.  Bank  of  California 
v.  Fresno  Canal  etc.  Co.,  53  Cal.  201.  Evi- 
dence as  to  the  intention  of  a  board  of 
supervisors,  as  a  quasi-judicial  body,  iu 
regard   to   some   act   not   attem{)ted   to   be 


526 


INJUNCTION. 


500> 


performed,  should  not  put  the  machinery 
of  the  courts  in  motion,  nor  invoke  a  writ 
of  injunction,  and  if  the  board  proceeds 
in  accordance  with  law,  and  lets  a  con- 
tract contrary  thereto,  the  taxpayer  is  not 
without  remedy,  but  he  cannot  come  into 
court  upon  the  supposition  or  belief  that 
a  public  officer  is  going  to  disregard  his 
oath  of  office  and  willfully  violate  the 
law.  Barto  v.  Board  of  Supervisors,  135 
Cal.  494;  67  Pac.  758;  and  see  McBride  v. 
Newlin,  129  Cal.  36;  61  Pac.  577.  A  public 
officer  having  control  of  a  trust  fund  will 
not  be  restrained  or  interfered  with  in 
his  duty  of  managing  the  same,  except 
upon  a  clear  showing  that  such  fund  is  in 
danger  of  being  wasted  or  impaired;  and 
acts  which  would  justify  such  remedy  must 
be  such  as  to  show  that  liability  will  be 
incurred  or  an  injury  done  by  threatened 
or  probable  malfeasance  for  which  such 
agent's  bond  or  personal  responsibility 
would  afford  no  possible  or  adequate  re- 
dress. San  Francisco  v.  Tallant,  10  Cal. 
585,  An  injunction  cannot  properly  be 
granted  to  restrain  the  defendant  from  en- 
tering upon  land  sued  for,  or  from  in  any 
manner  trespassing  thereon:  one  cannot 
enter  or  trespass  upon  land,  of  which  he 
is  already  in  possession;  nor  can  he  be 
restrained  from  working  thereon,  where  he 
does  not  commit  waste.  Williams  v.  Long, 
129  Cal.  229;  61  Pac.  1087.  A  perpetual 
injunction,  restraining  the  defendant  from 
conducting  his  business  in  unlawful  man- 
ner, does  not  restrain  him  from  conduct- 
ing it  in  a  lawful  manner,  and  he  has  the 
right  at  all  times  to  adopt  such  means  as 
may  be  within  his  power  for  such  purpose. 
People  v.  Gold  Run  Ditch  etc.  Co.,  66  Cal. 
155;  4  Pac.  1150.  Where  a  contract  in 
restraint  of  trade  is  valid,  and  the  com- 
plaint states  a  breach  of  it,  the  plaintiff 
is  entitled  to  an  injunction  to  prevent  its 
violation,  even  if  only  nominal  damages 
can  be  proven.  Brown  v.  Kling,  101  Cal. 
295;  35  Pac.  995.  Where  the  plaintiff  has 
proved  his  right  to  an  injunction  against 
a  nuisance  or  other  injury,  it  is  not  the 
duty  of  the  court  to  inquire  in  what  way 
the  defendant  can  best  remove  it:  it  is 
the  duty  of  the  defendant  to  find  his  own 
way  out  of  the  difficulty;  and  the  plaintiff 
is  entitled  to  an  injunction  at  once,  un- 
less the  removal  of  the  injury  is  physically 
impossible.  People  v.  Gold  Run  Ditch  etc. 
Co..  06  Cal.  155;  4  Pac.  1150. 

To  prevent  cloud  on  title.  A  court  of 
equity  will  interfere  by  injunction  to  pre- 
vent a  cloud  upon  a  title;  but  it  is  not 
•leemed  necessary  to  exercise  that  author- 
ity to  the  injury  of  strangers.  Goldstein 
V.  Kelly,  51  Cal.  301.  The  true  test  by 
which  the  question  may  be  determineil, 
whether  a  deeil  casts  a  cloud  upon  the  title 
is  this:  Would  the  owner  of  the  property, 
in  an  action  of  ejectment  brought  by  the 
adverse  party,  founded  upon  the  deed,  be 
required  to  offer  evidence  to  defeat  a  re- 


covery? and  if  such  proof  is  necessary,  a 
cloud  exists;  if  the  proof  is  unnecessary, 
no  shade  is  cast  by  the  presence  of  the 
deed.  Pixley  v.  Huggins,  15  Cal.  127;  and 
see  Englund  v.  Lewis,  25  Cal.  337;  Mar- 
riner  v.  Smith,  27  Cal.  649;  Ramsdell  v. 
Fuller,  28  Cal.  37;  87  Am.  Dec.  103;  Porter 
V.  Pico,  55  Cal.  165 ;'  Grigsby  v.  Schwarz,. 
82  Cal.  278;  22  Pac.  1041;  Roth  v.  Insley, 
86  Cal.  134;  24  Pac.  853;  Woodruff  v. 
Perry,  103  Cal.  611;  37  Pac.  526;  Russ  v. 
Crichton,  117  Cal.  695;  49  Pac.  1043.  A 
married  woman  is  entitled  to  an  injunction 
to  restrain  the  sale,  under  execution 
against  her  husband,  of  real  property  pur- 
chased by  her  during  coverture,  in  her  own 
name  and  with  her  separate  property:  such 
sale  casts  a  cloud  upon  her  title;  for,  in 
an  action  of  ejectment,  the  burden  of 
proof  would  rest  on  her  to  show  that  the 
premises  were  purchased  with  her  separate 
property  or  money.  Tibbetts  v.  Fore,  70 
Cal.  242;  11  Pac.  648.  Where  a  husband 
conveyed  property  to  his  wife  while  in- 
debted to  a  third  person,  who  secured 
judgments  against  the  husband,  the  court 
may  grant  the  wife  an  injunction,  pend- 
ing the  suit  to  determine  the  ownership, 
to  restrain  the  sale  of  the  property,  and 
thus  prevent  a  cloud  on  the  title  and  a 
resort  to  an  independent  action  to  remove 
the  cloud.  Einstein  v.  Bank  of  California, 
137  Cal.  47;  69  Pac.  616.  The  sale  of  a 
homestead  under  execution  casts  a  cloud 
on  the  title,  and  the  owner  is  entitled  to 
have  the  sale  enjoined,  as  it  would  be 
necessary,  in  an  action  of  ejectment  by 
the  purchaser  at  the  sale,  for  the  owner 
to  offer  extrinsic  evidence  to  defeat  the 
action.  Roth  v.  Insley,  86  Cal.  134;  24  Pac 
853.  The  sale,  by  an  administrator,  of  land 
sold  by  an  intestate  during  his  lifetime, 
casts  a  cloud  upon  the  title  of  the  in- 
testate's grantee,  and  will  be  restrained. 
Thompson  v.  Lynch,  29  Cal.  189.  An  order 
of  a  board  of  supervisors,  laying  out  a 
road,  which  is  null  and  void  on  its  face, 
creates  no  cloud  upon  the  title  to  the  land 
over  which  it  passes,  and  an  injunction 
will  not  lie:  the  owner  of  the  land  will 
be  left  to  his  remedy  at  law.  Leach  v. 
Day,  27  Cal.  643.  Where  a  board  of  su- 
pervisors made  an  order  that  a  road  should 
be  opened  across  private  lands,  and  the 
owner  thereof  was  not  given  notice  of  the 
proceedings,  he  is  entitled  to  an  order  re- 
straining the  opening  of  such  road.  Silva 
V.  Garcia,  65  Cal.  591;  4  Pac.  628.  The 
deed  of  a  superintendent  of  streets,  after 
a  void  sale  of  the  property  to  satisfy  a 
void  assessment,  would  itself  be  void,  and 
cast  no  cloud  upon  the  title,  and  an  in- 
junction will  not  be  granted  to  restrain 
the  sale.  Byrne  v.  Drain,  127  Cal.  663;  60 
Pac.  433.  The  execution  of  a  sheriff's 
deed  can  only  be  enjoined  in  a  case  where 
the  facts  alleged  by  the  plaintiff  show 
that,  in  an  action  of  ejectment  founded 
on  the  deed,  he  would  be  required  to  offer 


501 


CLOUD  ON  TITLE — MULTIPLICITY   OF   SUITS — TAXATION. 


§526 


evidence  to  overcome  the  effect  of  the 
deed.  Schuyler  v.  Broufjhton,  G5  Cal.  252; 
3  Pac.  870.  A  tax  deed,  void  on  its  face, 
cannot  cast  a  cloud  upon  the  title  of  the 
owner  of  the  land,  and  a  court  of  equity 
will  not  enjoin  the  is.suanco  of  such  void 
deed.  Russ  v.  Crichton,  117  Cal.  695;  49 
Pac.  1043;  Bucknall  v.  Story,  3()  Cal.  07. 
A  tax  sale  for  an  amount  greater  than 
that  authorized  by  law,  is  void,  and  an  in- 
junction will  lie  to  enjoin  the  execution 
of  a  deed  thereon.  Axtell  v.  Gerlaeh,  67 
Cal.  483;  8  Pac.  34.  A  plaintiff  holding 
&  valid  certificate  of  sale  for  non-})aynicnt 
of  taxes  may  have  a  sale  of  the  jiremises, 
under  execution,  enjoined,  on  the  ground 
that  such  subsequent  sale  would  be  a 
cloud  upon  his  title,  or  his  right  to  have 
title;  but  he  must  show  that  everything 
has  occurred  which  is  necessary  to  occur 
in  order  to  vest  in  him  the  right  claimed: 
a,n  allegation  that  the  jiroperty  was  only 
sold  to  satisfy  the  aforesaid  taxes,  at 
public  auction,  by  the  tax-collector,  to  the 
one  to  whom  the  certificate  of  sale  was 
delivered  by  the  tax-collector,  is  insufiS- 
■cient,  there  being  no  allegation  that  the 
certificate  stated  cither  of  the  matters  re- 
quired by  the  Political  Co<le.  Hall  v. 
Theisen,  61  Cal.  524.  A  court  of  equity 
will  not  interfere  to  restrain  the  issuance 
of  a  patent  for  lands,  which  would  not  be  a 
cloud  upon  the  plaintiff's  title,  and  does  not 
include  any  portion  of  his  land,  although 
the  patent  would  be  invalid.  Taylor  v. 
Underhill,  40  Cal.  471.  The  allegation, 
that  a  deed,  if  executed,  will  be  a  cloud 
upon  the  plaintiff's  title,  is  a  mere  conclu- 
sion of  law.  Schuvler  v.  Broughtou,  65 
Cal.  252;  3  Pac.  870." 

To  prevent  a  multiplicity  of  actions. 
The  necessity  of  preventing  a  multiplicity 
of  suits  warrants  the  interposition  of 
equity,  even  though  there  is  a  remedy  at 
law;  and  trespass  of  a  continuing  nature, 
■whose  constant  recurrence  renders  the 
remedy  at  law  inadequate,  unless  by  a 
multiplicity  of  suits,  affords  sufficient 
ground  for  relief  by  injunction.  Kellogg 
V.  King,  114  Cal.  378;  55  Am.  St.  Rep.  74; 
46  Pac.  166.  An  averment  in  the  com- 
plaint, that  the  granting  of  an  injunction 
■will  jirevent  a  multiplicity  of  suits,  is  not 
sufficient  to  justify  the  issuance  of  the 
■writ,  unless  it  fairly  appears  from  the 
nature  of  the  subject-matter  that  a  multi- 
plicity of  suits  would  follow  if  the  writ 
should  not  be  granted:  the  mere  fact  that 
the  owner  of  the  land  might  be  compelled 
to  defend  his  title,  or  to  i)roseeute  an  ac- 
tion against  a  possible  asserted  claim 
based  upon  a  void  deed,  is  not  sufficient. 
Byrne  v.  Drain,  127  Cal.  663;  60  Pac.  433. 

Tax  proceedings.  In  all  cases  involving 
merely  the  question  of  taxation,  the  issue 
is  strictly  one  at  common  law:  equity  can 
take  no  cognizance  thereof,  and  injunc- 
tions cannot  issue.  Minturn  v.  Hays,  2  Cal. 
590;  56  Am.  Dec.  366.     Where  taxes  have 


been  illegally  imposed,  or  a  valid  objec- 
tion apijcars  on  the  face  of  the  i)roceed- 
ings,  the  plaintiff"  has  a  perfect  remedy  at 
law.  Robinson  v.  (Jaar,  6  Cal.  273.  The 
collection  of  taxes  on  personal  property  can- 
not be  restrained  by  injunction,  except  where 
the  injury  would  be  irreparable,  and  this 
must  api)ear  in  the  bill  by  some  issuable 
av(>riii('nt,  and  be  sustained  if  denied;  the 
bill  should  also  show  that  the  tax-collector 
would  not  be  liable  to  respond  in  damages. 
Ritter  v.  Patch,  12  Cal.  298.  It  does  not 
necessarily  follow,  if  a  tax  is  conce<led  to 
be  illegal,  that,  for  that  reason  alone,  an 
injunction  will  lie:  a  court  of  equity  will 
not  restrain  the  action  of  public  officers, 
except  where  it  is  necessary  to  protect  the 
rights  of  a  citizen  whose  ])roperty  is  taxed, 
and  where  he  has  no  adequate  remedy  at 
law;  it  must  appear  that  the  enforcement 
of  the  tax  would  lead  to  a  multiplicity  of 
suits,  or  produce  irreparable  injury,  or, 
where  the  proi)erty  is  real  estate,  wouM 
throw  a  cloud  upon  the  title  of  the  com- 
plainant. Savings  and  Loan  Society  v. 
Austin,  46  Cal.  415;  Crocker  v.  Scott,  149 
Cal.  575;  87  Pac.  102.  A  court  of  equity 
•ndll  not  enjoin  the  issuance  of  a  voiil  tax 
deed  (Russ  v.  Crichton,  117  Cal.  695;  49 
Pac.  1043),  nor  restrain  a  sale  for  taxes, 
where  it  is  apparent  upon  the  face  of  the 
proceedings,  upon  which  the  purchaser 
must  necessarily  rely  to  make  out  a  prima 
facie  case  to  enable  him  to  recover  under 
the  sale,  that  the  sale  would  be  void. 
Bucknall  v.  Story,  30  Cal.  67.  The  alle- 
gation, that  if  a  sale  shall  be  allowed  to 
proceed  the  plaintiff  will  be  involved  in 
litigation  with  the  purchasers,  is  a  mere 
speculation  as  to  probabilities;  but  non 
constat  that  a  purchaser  will  be  found, 
or  that  there  will  be  more  than  one,  or 
that,  if  found,  such  purchaser  w'ould  claim 
the  benefit  of  purchase,  or  that  he  -svould 
accei)t,  or  that  the  collector  would  ever 
execute  a  deed  for  the  property.  Savings 
and  Loan  Society  v.  Austin,  40  Cal.  415. 
A  taxpayer  cannot  enjoin  the  collection 
of  taxes  due  the  county,  on  the  ground 
that  he  had,  in  former  years,  paid  taxes 
assessed  on  his  property,  which  were  ille- 
gally assessed  and  collected.  Fremont 
v.  Mariposa  County,  11  Cal.  361.  Goods 
stored  in  a  warehouse  cannot  be  assessed 
to  the  owner  of  the  warehouse,  and  an  in- 
junction lies  to  prevent  the  sale  of  the 
■warehouse  for  delinquent  taxes  upon  such 
goods.  Weyse  v.  Crawford,  85  Cal.  196;  24 
Pac.  735.  A  city  has  no  right  to  assess 
and  tax  a  Federal  franchise  granted  to  a 
telegrajih  company:  an  assessment  by  a 
city  upon  such  franchise  is  void,  and  an 
attemi)t  by  the  city  to  levy  upon  property 
of  the  com])any  to  satisfy  such  assessment 
may  properly  be  restrained  by  an  injunc- 
tion. Western  Union  Tel.  Co.  v.  Visalia, 
149  Cal.  744;  87  Pac.  1023.  Where  the 
board  of  directors  of  an  irrigation  district 
levies  an  assessment  to  pay  the  interest  on 


5  526 


INJUNCTION. 


502 


bonds,  and  the  disparity  between  the 
amount  of  the  assessment  and  the  annual 
interest  is  so  great  as  to  make  it  appear 
that  the  action  of  the  board  is  improper, 
and  not  in  the  exercise  of  any  discretion, 
so  that  the  assessment  is  excessive,  courts 
are  authorized  to  prevent  its  enforcement 
by  injunction.  Hughson  v.  Crane,  115  Cal. 
404;  47  Pac.  120.  The  date  of  the  sale 
for  taxes  should  be  alleged,  so  that  the 
court  may  know  whether  or  not  the  ac- 
tion can  be  tried  and  determined  before 
such  date,  and  therefore  determine  the 
necessity  for  a  temporary  injunction. 
Santa  Cruz  Fair  Bldg.  Ass'n  v.  Grant,  104 
Cal.  30(j;  37  Pac.  1034. 

Street-assessment  proceedings.  This  sec- 
tion does  not  prevent  the  issuance  of  an 
injunction  to  restrain  city  officers  from 
enforcing  a  street  assessment,  until  it  can 
be  determined  whether  the  proceedings 
preliminary  to  the  assessment  deprive  the 
plaintiffs  of  their  property  without  due 
process  of  law.  Pierce  v.  Los  Angeles,  159 
Cal.  516;  114  Pac.  818.  Where  a  city  council 
has  no  jurisdiction  to  authorize  the  exten- 
sion of  a  street,  an  assessment  therefor 
would  create  no  lien  upon  the  property  of 
the  plaintiff,  and  a  purchaser  at  a  sale 
of  the  property  to  satisfy  the  assessment 
would  acquire  no  title;  such  facts  would 
be  determined  by  decree  in  the  action,  and 
the  rights  of  the  plaintiff  could  be  there- 
by fully  protected.  Santa  Cruz  Fair  Bldg. 
Ass'n  V.  Grant,  104  Cal.  306;  37  Pac.  1034. 
An  injunction  will  not  be  granted  to  re- 
strain a  street  superintendent  from  selling 
real  property,  under  a  void  sale,  to  satisfy 
a  void  street  assessment.  Byrne  v.  Drain, 
127  Cal.  663;  60  Pac.  433.  A  preliminary 
injunction  against  a  sale  of  land  in  satis- 
faction of  a  street  assessment  should  be 
denied,  where,  if  the  allegations  of  the 
complaint  should  not  be  sustained,  dam- 
ages might  result  to  the  public  and  to 
others  than  the  defendant,  while,  if  the 
assessment  was  without  jurisdiction,  it 
would  create  no  lien  upon  the  land  of 
plaintiff  and  a  purchaser  at  the  sale  would 
acquire  no  title.  Santa  Cruz  Fair  Bldg. 
.\ss'n  V.  Grant,  104  Cal.  306;  37  Pac.  1034. 
Where  the  contract  between  a  city  and  a 
contractor  was  legally  entered  into,  and 
it  is  not  alleged  that  the  work  to  be  done 
thereun<ler  will  injuriously  affect  the  plain- 
tiff, an  injunction  will  not  be  granted  on 
the  ground  that  by  reason  of  the  accept- 
ance of  the  street  the  cost  of  the  improve- 
ment should  be  borne  at  the  public  expense, 
as  the  question  as  to  who  shall  bear  the 
expense  will  be  «letermined  on  completion 
of  the  work.  Flickinger  v.  Fay,  119  Cal. 
59u;  .^1  Pac.  S55. 

Change  of  street  grade,  where  damage 
not  ascertained.  Unrler  the  constitution, 
the  ascertainment  and  payment  of  dam- 
ages caused  by  a  change  of  the  grade  of  a 
street,  is  a  condition  |)reccdent  to  the  right 
of  the  city  to  make  such  change;  hence,  a 


property-owner  can  enjoin  such  work  until 
his  damages  have  been  lawfully  ascer- 
tained and  paid.  Wilcox  v.  Engebretsen, 
160  Cal.  288;  116  Pac.  750.  A  defendant 
may  be  properly  enjoined  from  erecting 
or  maintaining  any  fence  more  than  ten 
feet  high  on  the  division  line,  and  may 
be  required  to  remove  all  that  portion  of 
the  division-fence  which  is  more  than  ten 
feet  high,  and  be  enjoined  from  obstruct- 
ing the  light  and  air  coming  from  his 
premises  into  the  windows  upon  the  ad- 
joining land  by  any  division  fence  or 
wall  more  than  ten  feet  high;  but  such 
judgment  has  no  effect  upon  the  right  of 
the  defendant  to  erect  any  structure  of 
greater  height  upon  his  own  land.  West- 
ern Granite  etc.  Co.  v.  Knickerbocker,  103 
Cal.  Ill;  37  Pac.  192.  A  fence  erected 
wholly  upon  the  land  of  the  defendant,, 
is  not  a  division-fence,  within  the  mean- 
ing of  the  act  of  March  9,  1885,  limiting 
the  height  of  division-fences  and  parti- 
tion-walls in  cities  and  towns;  and  an  ad- 
joining proprietor  cannot  enjoin  such 
fence  as  a  nuisance,  merely  because  it  ob- 
structs the  passage  of  light  and  air  to  his 
building.  Ingwersen  v.  Barry,  118  Cal. 
342;  50  Pac.  536. 

To  prevent  enforcement  of  judgment. 
Courts  of  equity  interfere  with  judgments- 
at  law,  and  resort  to  their  high  and  ex- 
traordinary power  of  interference  by  in- 
junction, only  for  the  prevention  of  fraud, 
or  to  relieve  from  substantial  injury  or 
gross  injustice:  for  the  correction  of  in- 
formalities or  irregularities  in  legal  or 
judicial  proceedings,  a  complainant  must 
prosecute  his  remedies  at  law,  as  from  a 
court  of  equity  he  can  receive  no  counte- 
nance. Gregory  v.  Ford,  14  Cal.  138;  73 
Am.  Dec.  639.  A  court  of  equity  does  not 
sit  for  the  correction  of  errors  in  actions 
at  law:  it  never  grants  relief  upon  the- 
ground  of  error  or  mistake  in  the  judg- 
ment of  a  court  of  law,  or  because,  in  de- 
ciding a  question  passed  upon  by  a  court 
of  law,  it  would  reach  a  different  conclu- 
sion. Eeagan  v.  Fitzgerald,  75  Cal.  230;  17 
Pac.  198.  Equity  may  interfere  in  favor 
of  parties  to  a  judgment,  to  stop  the  exe- 
cution thereof,  where  it  was  obtained  by 
imposition  upon  the  court,  or  by  fraud 
practiced  upon  the  parties;  and  it  will 
interfere  in  favor  of  one  who  was  not  a 
party  to  the  judgment,  where  its  enforce- 
ment would  work  irreparable  injury  to 
land  of  which  he  is  owner  and  in  posses- 
sion, or  deprive  him  of  its  use  and  enjoy- 
ment, or  create  a  legal  cloud  upon  his 
title.  Roman  Catholic  Archbishop  v.  Ship- 
man,  69  Cal.  580;  11  Pac.  343.  Equity 
interferes  with  judgments  and  proceeclings 
at  law,  only  in  peculiar  cases.  Gregory  v. 
Ford,  14  Cal.  138;  73  Am.  Dec.  639.  In- 
junctions are  granted  to  restrain  proceed- 
ings at  law,  where  the  facts  show  that  it 
would  be  against  good  conscience  to  en- 
force   such    i)roceedings,    and    also    show 


503 


TO  PREVENT  ENFORCEMENT  OF  JUDGMENT. 


§526 


that  the  injured  party  could  not  have 
availed  himself  of  such  facts  in  a  court  of 
law,  or  of  which  he  might  have  availed 
himself  at  law,  but  was  jirevcnted  by 
fraud  or  accident,  unmixed  with  any  fraud 
or  accident  on  his  part.  Keagaii  v.  Fitz- 
gerald, 75  Cal.  23U;  17  I'ac.  liiS.  iJeiief 
in  equity  against  a  judgment  on  the  ground 
of  fraud  will  not  be  granted,  unless  the 
fraud  was  jiracticed  under  such  circum- 
stances as  to  leave  a  reasonable  inference 
that  the  injured  party  was  deceived;  and 
if  the  circumstances  attending  the  decep- 
tion are  such  as  to  put  a  reasonable  iiersou 
upon  inquiry,  there  can  be  no  presumption 
of  deceit.  Champion  v.  Woods,  79  Cal.  17; 
12  Am.  St.  Eep.  126;  21  Pac.  534.  Courts 
of  equity  will  interfere  to  enjoin  a  judg- 
ment at  law,  rendered  against  a  party  by 
reason  of  fraud  or  accident,  only  when  un- 
mixed with  any  fault  or  negligence  of 
himself  or  his  agents.  Phelps  v.  Peabody, 
7  Cal.  50.  Ignorance  as  to  the  truth  of 
the  matters  misrepresented,  believing  the 
same  to  be  true,  is  not  sufficient,  under  any 
circumstances,  to  warrant  relief  against 
the  judgment;  the  situation  of  the  party 
may  be  such  that  he  will  be  deemed  in 
law  to  have  knowledge  of  the  facts,  and 
barred  from  making  complaint,  though 
actually  ignorant  of  the  true  state  of 
facts;  and  if  the  means  of  knowledge  is 
at  hand,  and  equally  available  to  both 
parties,  and  there  is  no  fiduciary  or  confi- 
dential relation,  the  injured  party  must 
show  that  he  availed  himself  of  the  means 
of  information  existing  at  the  time  of  the 
transaction,  before  he  will  be  heard  to  say 
that  he  was  deceived  by  the  misrepresen- 
tations of  the  other  party.  Champion  v. 
Woods,  79  Cal.  17;  12  Am.  St.  Kep.  126;  21 
Pae.  534.  A  judgment  at  law  will  be  en- 
joined only  where  the  case  presents  facts 
not  only  showing  the  equitable  rights  of 
the  complainant,  but  also  that  he  could 
not  have  availed  himself  of  such  facts  in 
a  legal  forum:  the  tendency  of  modern 
legislation  and  practice  is  to  abridge  the 
necessity  for  this  class  of  bills,  by  jirovid- 
ing  remedies  in  courts  of  law  for  manj^  of 
the  exigencies  which  called  them  into  exist- 
ence. Keagan  v.  Fitzgerald,  75  Cal.  230; 
17  Pac.  198.  A  court  of  equity  will  not 
entertain  jurisdiction  of  a  suit  for  relief 
against  a  judgment,  merely  on  the  ground 
that  the  demand  may  be  unconscionable 
and  that  injustice  may  have  been  done, 
provided  it  was  competent  for  the  party 
to  place  the  matter  before  the  court  in 
the  original  action,  either  upon  issue 
joined  or  upon  motion  to  set  aside  the 
verdict  or  judgment.  Borland  v.  Thorn- 
ton, 12  Cal.  440;  Ede  v.  Hazen,  61  Cal. 
360.  Although  a  party  may  set  up  an 
equitable  defense  to  an  action  at  law.  yet 
he  is  not  confined  to  that  proceeding:  he 
may  let  the  judgment  go  at  law,  and  file 
his  bill  in  equity  for  relief;  and  the  ]>rac- 
tice   in    this   state,    while   it   enlarges   the 


field  of  remedy,  does  not  take  away  pre- 
existing remedies  by  implication.'  Lor- 
raine V.  Long,  6  Cal.  452;  Hough  v. 
Waters,  30  Cal.  309;  Hills  v.  Sherwood,  48 
Cal.  3SG;  Goison  v.  Dunlap,  73  Cal.  157; 
14  Pac.  576.  The  plaintiff  is  not  entitled 
to  an  injunction  to  restrain  the  sale  of 
jiroperty  levied  upon  un<ler  execution,  and 
to  comfiel  the  carrying  out  of  a  verbal 
agreement  to  stay  execution  for  a  year, 
in  consideration  of  a  confession  of  judg- 
ment, where  he  was  guilty  of  laches  in 
not  taking  advantage  of  his  adequate 
and  speedy  legal  remedy  by  motion  to  set 
aside  the  execution,  and  to  stay  all  legal 
I)rocess  until  the  exjjiration  of  the  vear 
agreed  ujton.  Moulton  v.  Knapp,  85  'Cal. 
385;  24  Pac.  803.  Where  a  verdict  was 
obtained  at  law  against  a  defendant,  and 
he  neglected  to  apply  for  a  new  trial 
within  the  time  appointed,  a  court  of 
equity  will  not  entertain  a  bill  for  an  in- 
junction on  the  ground  that  the  original 
demand  was  unconscionable.  PheljJS  v. 
Peabody,  7  Cal.  50.  A  judgment  will  not 
be  enjoined  on  matter  on  which  the  party 
relied  for  a  new  trial,  and  which  was  held 
insufficient:  equity  will  not  give  relief,  by 
way  of  appeal,  upon  the  same  facts  passed 
upon  in  the  judgment  by  the  law  side  of 
same  court.  Collins  v.  Butler,  14  Cal.  223. 
Fraudulent  conduct  and  deceitful  repre- 
sentations, upon  the  jiart  of  a  plaintiff  in 
an  action  at  law,  by  means  of  which  the 
defendant,  who  has  a  meritorious  defense, 
is  prevented  from  interposing  it,  or  has 
lost  the  right  to  move  for  a  new  trial,  is 
ground  to  restrain  the  enforcement  of  the 
judgment.  Thompson  v.  Laughlin,  91  Cal. 
313;  27  Pac.  752.  A  judgment  debtor  is 
entitled  to  an  injunction  restraining  the 
execution  of  a  judgment  at  law,  where 
the  grounds  upon  which  the  injunction  is 
sought  could  not  have  been  made  a  de- 
fense to  the  former  action,  or  he  was 
prevented  from  making  the  defense  by 
reason  of  the  fraudulent  conduct  of 
the  judgment  creditor.  Kelley  v.  Kriess, 
68  Cal.  210;  9  Pac.  129.  Where  no  valid 
defense  was  interposed  in  the  original  ac- 
tion, and  judgment  passed  in  favor  of  the 
plaintiff,  the  defendant  cannot  afterwards 
obtain  an  injunction  restraining  the  col- 
lection of  the  judgment,  for  reasons  which 
were  known,  and  which  should  have  been 
interposed  as  a  defense  in  the  original  ac- 
tion. Beaudry  v.  Felch,  47  Cal.  183;  Al- 
drich  v.  Stephens,  49  Cal.  676;  Kelley  v. 
Kriess,  68  Cal.  210;  9  Pac.  129.  Deception 
as  to  matters  of  law  generally  affords  no 
ground  of  redress  or  relief;  but  this  rule 
does  not  apply  to  transactions  between 
parties  holding  fiduciary  or  confidential 
relations;  and  where  one,  who  has  had 
superior  means  of  information,  possesses 
a  knowledge  of  the  law,  and  thereby  ob- 
tains an  unconscionable  advantage  of  an- 
other, who  is  ignorant,  and  was  not  in  a 
situation  to  be  informed,  the  injured  party 


§526 


INJUNCTION. 


504 


is  entitled  to  relief,  as  well  as  if  the  mat- 
ters represented  were  matters  of  fact. 
Champion  v.  Woods,  79  Cal.  17;  12  Am.  St. 
Eep.  126;  21  Pac.  534.  Where,  after  judg- 
ment at  law,  such  facts  come  to  light  as 
would  authorize  the  interposition  of  a 
court  of  equity  to  enjoin  the  judgment, 
the  bill,  which  would  be  in  the  nature  of 
a  bill  in  equity  for  a  new  trial,  must  dis- 
tinctly show  that  such  facts  are  of  con- 
trolling force;  that  they  were  not  known 
to  the  defendant  at  the  time  of  trial;  that 
defendant  used  all  proper  diligence  to 
prepare  his  case  for  trial,  and  to  procure 
the  evidence,  but  was  unable,  without 
fault  or  negligence  on  his  part,  to  procure 
it;  that  such  testimony  is  now  within  his 
control,  and  that  he  will  be  able  to  pro- 
cure it  on  another  trial;  and  the  bill 
should  state  particularly  the  facts  to  be 
proved,  the  names  of  witnesses,  and  show 
the  bearing  and  relevancy  of  the  proposed 
proof,  and  should  also  show  when  and  how 
the  facts  discovered  came  to  his  knowl- 
edge, and  why  no  motion  for  a  new  trial 
was  made  in  the  trial  court.  Mulford  v. 
Cohn,  18  Cal.  42.  In  an  action  to  restrain 
the  enforcement  of  a  voidable  judgment, 
the  complaint  must  show  that  the  plaintiff 
had  a  good  defense  to  the  action  in  which 
the  judgment  was  rendered;  such  a  de- 
fense is  sufficiently  shown,  in  the  absence 
of  a  special  demurrer,  by  an  allegation 
that  at  the  time  of  the  entry  of  the  judg- 
ment the  defendant  had  no  cause  of  action 
against  the  plaintiff.  Harnish  v.  Bramer, 
71  Cal.  155;  11  Pac.  888.  The  enforcement 
of  a  judgment,  obtained  in  violation  of  a 
written  stipulation  on  file  dismissing  the 
action,  may  be  restrained  by  the  court  in 
which  the  judgment  was  obtained.  Mc- 
Leran  v.  McNamara,  55  Cal.  508.  Courts 
of  equity  will  not  interfere  to  enjoin  a 
judgment  not  manifestly  wrong,  simply 
because  of  a  defect  in  the  evidence.  Pico 
V.  Sunol,  6  Cal.  294.  An  execution  issued 
on  a  judgment  will  not  be  restrained  on 
the  ground  that  the  judgment  has  been 
discharged  by  a  decree  in  insolvency:  the 
party  has  a  sufficient  remedy  by  motion. 
Green  v.  Thomas,  17  Cal.  86;  and  see  Im- 
lay  V.  Carpentier,  14  Cal.  173.  Where  the 
judgment  was  absolutely  void,  the  party 
has  a  perfect  remedy,  by  application  to 
the  court,  to  quash  the  execution:  the 
court  can,  at  any  time,  arrest  all  process 
issued  by  its  clerk  on  void  judgments; 
anil  if  the  judgment  is  not  absolutely  void, 
but  merely  irregular,  the  remedy  is  by 
motion  before  judgment  or  on  appeal,  and 
an  injunction  to  restrain  the  enforcement 
thereof  does  not  lie.  Logan  v.  Hillegass, 
16  Cal.  200;  Comstock  v.  Clemens,  19  Cal. 
77;  Gates  v.  Lane,  49  Cal.  266;  Luco  v. 
Brown,  73  Cal.  3;  2  Am.  St.  Rep.  772;  14 
Pac.  366.  Where,  in  an  action  to  enforce 
a  lien  on  land  for  delinquent  taxes,  there 
was  no  service  of  summons  upon  nor  ap- 
pearance by  the  defendant,  and  the  court 


commissioner  drafted  a  decree,  inserting 
a  clause  therein  that  summons  had  been 
served,  and  the  judge,  deceived  by  the 
false  recital,  signed  the  decree  and  ordered 
it  entered,  and  the  court  commissioner  be- 
came the  purchaser  and  obtained  a  sheriff's 
deed  at  the  sale  of  the  land,  a  court  of 
equity  will  give  relief  to  the  owner  of  the 
property,  by  restraining  the  purchaser 
from  setting  up  the  judigment  as  an  es- 
toppel, or  from  using  it  to  perpetuate  the 
advantage  he  has  gained.  Martin  v.  Par- 
sons, 49  Cal.  94.  Where  a  party  moves 
for  a  new  trial  and  fails,  and  the  action 
of  the  court  was  affirmed  on  appeal,  he 
cannot  go  into  equity  to  enjoin  the  judg- 
ment on  the  matters  relied  upon  for  relief 
in  the  action  at  law.  Collins  v.  Butler,  14 
Cal.  223. 

Enjoining  default  judgments.  A  de- 
fendant, who  has  no  defense  to  the  action, 
cannot  enjoin  a  judgment  by  default,  on 
the  ground  that  the  sheriff's  return  of 
service  on  him  is  false,  and  that  he  had 
no  notice  of  the  proceeding.  Gregory  v. 
Ford,  14  Cal.  138;  73  Am.  Dec.  639.  An 
injunction  will  not  lie  to  enjoin  a  judg- 
ment by  default,  on  the  ground  that  the 
sheriff's  return  on  the  summons  does  not 
show  the  place  in  which  service  was  made 
on  the  defendant,  where  it  was  proved, 
on  the  hearing  of  the  application  for  the 
injunction,  that  the  defendant  was  served 
in  a  certain  county  in  this  state,  more 
than  forty  days  before  the  entry  of  his 
default.  Pico  v.  Sunol,  6  Cal.  294.  A 
judgment  by  default  upon  a  claim  cannot 
be  restrained,  where  the  complaint  does 
not  allege  that  the  plaintiff  ever  paid  the 
claim  for  the  recovery  of  which  such  ac- 
tion was  brought,  or  that  he  had  any 
valid  defense  to  the  same.  Logan  v.  Hille- 
gass, 16  Cal.  200.  Where  a  judgment  by 
default  is  rendered  upon  an  illegal  con- 
tract, a  court  of  equity  will  not  enjoin  the 
enforcement  of  the  judgment.  Pacific 
Debenture  Co.  v.  Caldwell,  147  Cal.  106; 
81  Pac.  314. 

Equitable  jurisdiction  over  judgments. 
See  note,  ante,  §  473. 

Enjoining  execution  sales.  An  execu- 
tion sale  of  personal  property  cannot  be 
restrained,  unless  the  injury  would  be  ir- 
reparable, and  this  must  appear  by  a  clear 
showing  of  the  plaintiff's  right  to  the  prop- 
erty and  of  the  defendant's  insolvency. 
More  V.  Ord,  15  Cal.  204.  A  court  of 
equity  will  entertain  an  attaching  credi- 
tor's bill  to  enjoin  an  execution  sale  of 
the  same  property,  under  a  judgment  re- 
covered in  an  action  where  there  was  a 
prior  attachment,  on  the  ground  that  such 
judgment  was  fraudulent  as  to  such  credi- 
tor, without  requiring  him  to  obtain  judg- 
ment, execution,  and  return  of  nulla  bona, 
where  the  answer  admits  the  defendant's 
debt  and  insolvency,  and  all  other  material 
allegations  of  the  bill,  except  fraud. 
Heyneman   v.  Dannenberg,  6  Cal.  376;   65 


505 


STRIKERS,  ETC. — PUBLIC  OFFICERS — OTHER  COURTS. 


§526 


Am.  Dec.  519.  "Where  a  shcriflf  ha.s  notiro 
of  the  injunction  restraining  an  execution 
Bale,  he  is  bound  by  the  order,  although 
he  was  not  a  party  to  the  suit.  Bufi'andeuu 
V.  Edmondson,  17  Cal.  4.3();  79  .Am.  Dec. 
139.  In  an  action  to  enjoin  a  sale  under 
an  execution  issued  upon  a  judgment  ren- 
dered by  a  justice  of  the  pea<'e,  the  com- 
plaint must  allege  tliat  the  jilaintifi'  was 
not  served  with  summons,  anil  that  he  did 
not  appear  in  the  action  in  which  the  judg- 
ment was  rendered:  an  allegation  that  he 
had  no  knowledge  of  the  ju<lgment  for 
more  than  thirty  days  after  its  rendition 
is  not  sufticient.  Farrington  v.  Brown,  65 
Cal.  320;  4  Pac.  2(). 

Strikes  and  boycotts.  Equity  has  no 
jurisdiction  to  enjoin  workmen  from  not 
worlcing;  tlieir  threat  not  to  work  for  any 
patrons  or  customers  dealing  with  the 
plaintiff,  affords  no  ground  for  equitable 
relief.  Parkinson  Co.  v.  Building  Trades 
Council,  L54  Cal.  581;  21  L.  E.  A.  (N.  S.) 
550;  16  Ann.  Cas.  1165;  9S  Pac.  1027,  In- 
ferences, generalities,  presumptions,  and 
conclusions  have  no  place  in  a  pleading  for 
an  injunction;  therefore  an  allegation  that 
the  defen<lants  are  printing  and  circu- 
lating false  and  malicious  publications 
upon  the  premises  of  the  plaintiffs,  and  in 
the  vicinity  of  their  place  of  business,  for 
the  purpose  of  preventing  them  from  car- 
rying on  such  business,  and  to  prevent 
persons  from  dealing  with  them,  as  well 
as  to  intimidate  both  plaintiffs  and  their 
employees  in  the  conduct  of  their  business, 
is  insufficient.  Davitt  v.  American  Bakers' 
Union,  124  Cal.  99;  56  Pac.  775.  Union 
men  have  the  right  to  notify  contractors 
employing  union  men,  having  dealings 
with  their  employer,  whom  they  have  de- 
clared unfair  for  employing  non-union  men, 
that  their  emploj'er  has  been  so  declared, 
and  to  withdraw  jiatronage  from  such  con- 
tractors as  continue  to  deal  with  such  em- 
ployer; such  notice  and  withdrawal  of 
patronage  afford  no  ground  for  equitable 
relief.  Parkinson  Co.  v.  Building  Trades 
Council,  154  Cal.  581;  21  L.  E.  A.  (N.  S.) 
550;  16  Ann.  Cas.  1165;  98  Pac.  1027. 

To  stay  acts  of  public  officers.  There  is 
a  markeil  distinction  between  a  proceed- 
ing to  stay  the  acts  of  an  officer,  not  au- 
thorized by  the  process  under  which  he 
assumes  to  act,  and  a  proceeding  to  stay 
or  suspend  the  vital  force  and  the  direct 
commands  of  such  process:  the  former 
seeks  to  confine  the  officer  within  the 
limits  of  the  authority  conferred  by  his 
writ;  the  latter,  to  stay  and  nullify  its 
direct  commands.  Crowley  v.  Davis,  37 
Cal.  268;  and  see  Pixley  v.  Huggins,  15 
Cal.  127.  The  complaint  to  restrain  the 
levy  of  a  writ  of  attachment  upon  im- 
provements to  mines,  made  by  the  vendee 
under  a  contract  of  sale  thereof,  is  suffi- 
cient, where  it  alleges  that,  b.y  the  terms 
of  the  contract,  all  improvements  erected 
by  the  vendee  are  to  be  the  property   of 


the  vendor  until  the  mines  are  pai<l  for. 
Conde  v.  Sweeney,  14  Cal.  App.  20;  110 
Pac.  973.  It  is  error  to  dissolve  an  injunc- 
tion to  restrain  a  sheriff,  acting  under  a 
writ  of  attachment,  from  totally  destroy- 
ing the  business  of  the  plaintiff.  Dingley 
V.  Bucknor,  11  Cal.  App.  ISl;  104  Pac. 
478.  Where  an  order  for  the  payment  of 
money  is  made  by  a  board  of  supervisors, 
"without  authority  of  law,"  as  where  an 
effort  is  made  to  pay  the  indebtedness  of 
one  fiscal  year  out  of  the  revenues  of  an- 
other fiscal  year,  the  district  attorney 
may,  without  an  order  of  the  board,  bring 
an  action  to  restrain  the  payment  of  such 
warrant.  Tehama  County  v.  Sisson,  152 
Cal.  167;  92  Pac.  64.  Where  a  permit  from 
a  board  of  su])ervisors  is  necessary  before 
poles  may  be  erected  in  the  streets  of  a 
city,  and  such  a  permit  is  issued  to  one 
company  and  denied  to  another,  an  injunc- 
tion cannot  be  granted  to  restrain  the 
superintendent  of  streets  from  interfer- 
ing with  the  erection  of  poles  by  the  com- 
pany denied  a  permit.  Mutual  Electric 
Light  Co.  V.  Ashworth,  118  Cal.  1;  50  Pac. 
10. 

To  prevent  the  enforcement  of  criminal 
laws.  Evil  resorts,  devoted  exclusiveh'  to 
the  persistent  violation  of  the  law,  can 
claim  no  immunity  from  interference  by 
the  police,  whose  duty  it  is  to  take  all 
proper  means  to  suppress  them;  and  where 
a  person  establishes  a  lawful  business  upon 
a  public  passageway,  merely  as  an  inci- 
dent to  and  dependent  for  its  support  U])on 
the  patronage  of  such  resorts,  and  his 
premises  are  used  as  the  sole  public  en- 
trance thereto,  he  is  not  entitled  to  an  in- 
junction to  restrain  the  action  of  the  police 
in  their  acts  of  suppression  (Pon  v.  Witt- 
man,  147  Cal.  280;  2  L.  E.  A.  (N.  S.)  683; 
81  Pac.  984);  but  the  inattention  of  par- 
ties in  a  court  of  law  can  scarcely  be 
made  a  subject  for  the  interference  of  a 
court  of  equity.  Borland  v.  Thornton,  12 
Cal.  440.  An  injunction  will  not  issue  to 
prevent  the  suppression  of  places  main- 
tained in  violation  of  law.  Asiatic  Club  v, 
Biggy,  160  Cal.  713;  117  Pac.  912. 

To  enjoin  proceedings  in  court  of  con- 
current jurisdiction.  The  comity  which 
one  court  owes  to  another,  of  concurrent 
jurisdiction,  should  always  prevent  one 
court  from  lending  itself  as  an  instrument 
to  permit  a  contempt  of  the  process  of 
the  other:  the  one  should  regard  a  party 
attempting  to  proceed  in  defiance  of  the 
authority  of  the  other  as  laboring  under 
thp  same  disability  to  ask  for  the  action 
of  the  court  as  if  he  were  an  alien  enemy, 
or  under  the  ban  of  a  decree  of  outlawry 
at  common  law.  Engels  v.  Lubeck,  4  Cal. 
31.  One  court  has  no  power  to  enjoin  the 
execution  of  a  judgment  or  decree  of  an- 
other court  of  co-ordinate  jurisdiction,  un- 
less the  court  rendering  such  judgment  or 
decree  is  unable,  by  reason  of  its  jurisdic- 
tion, to  afford   the  relief  sought;   and   the 


§526 


INJUNCTION. 


506 


fact  that  the  parties  to  the  injunctiou  pro- 
ceeding are  not  the  same  as  the  parties  to 
such  judgment  or  decree,  does  not  relieve 
the  case  from  the  operation  of  the  rule, 
nor  can  the  consent  of  the  parties  change 
the  rule  or  relax  its  binding  force:  it  is 
not  established  and  enforced  so  much  to 
protect  the  rights  of  the  parties  as  to 
protect  the  rights  of  courts  of  co-ordi- 
nate jurisdiction,  to  avoid  conflict  of  juris- 
diction, and  confusion  and  delay,  in  the 
administration  of  justice.  Crowley  v. 
Davis,  37  Cal.  268;  Anthony  v.  Dunlap,  8 
Cal.  26;  Eickett  v.  Johnson,  8  Cal.  34; 
Eevalk  v.  Kraemer,  8  Cal.  66;  68  Am.  Dec. 
304;  Chipman  v.  Hibbard,  8-  Cal.  268; 
Uhlf elder  v.  Levy,  9  Cal.  607;  Hockstacker 
V.  Levy,  11  Cal.  76;  Flaherty  v.  Kelly,  51 
Cal.  145;  Judson  v.  Porter,  51  Cal.  562; 
Waymire  v.  San  Francisco  etc.  Ry.  Co., 
112  Cal.  646;  44  Pac.  1086.  An  injunction 
does  not  lie  to  restrain  the  execution  of 
the  orders  or  the  carrying  into  effect  of 
the  decrees  of  another  court  of  co-ordinate 
jurisdiction,  where  the  latter  court  can 
afford  ample  relief;  the  only  ground  upon 
which  a  court  of  chancery  formerly  acted 
in  granting  injunctions,  under  such  cir- 
cumstances, was  the  inability  of  a  court 
of  law  to  grant  the  necessary  relief;  but 
as,  since  the  adoption  of  our  codes,  the 
jurisdiction  of  all  our  courts  is  equitable 
as  well  as  legal,  the  reason  for  the  exer- 
cise of  the  power  has  ceased  to  exist. 
Eickett  V.  Johnson,  8  Cal.  34;  Eevalk  v. 
Kraemer,  8  Cal.  66;  68  Am.  Dec.  304; 
Chipman  v.  Hibbard,  8  Cal.  268;  Pixley  v. 
Huggins,  15  Cal.  127.  The  courts  of  this 
state,  under  §  3423  of  the  Civil  Code,  can- 
not restrain  persons  within  the  state  from 
prosecuting  an  action  already  pending  in 
a  domestic  or  in  a  foreign  jurisdiction, 
except  to  prevent  a  multiplicity  of  suits. 
Spreekels  v.  Hawaiian  Commercial  etc.  Co., 
117  Cal.  377;  49  Pac.  353.  The  superior 
court  of  one  county  has  no  jurisdiction, 
upon  a  bill  of  discovery  filed  therein,  to 
enjoin  the  parties  from  proceeding  with 
the  trial  of  a  prior  action  pending  between 
them  in  the  superior  court  of  another 
county,  and  prohibition  will  lie  to  prevent 
the  enforcement  of  such  injunction. 
Wright  v.  Superior  Court,  139  Cal.  469; 
73  Pac.  145.  The  prosecution  of  a  suit  in 
one  court  cannot  be  enjoined  by  another 
court  of  co-ordinate  jurisdiction,  except 
where  the  court  in  which  the  ]»roceedings 
sought  to  be  enjoined  are  pending  cannot 
afford  adequate  relief  (Wilson  v.  Baker, 
64  Cal.  475;  2  Pac.  253);  and  where  the 
same  fraudulent  debtor  confesses  different 
fraudulent  judgments  in  different  jurisdic- 
tions, there  is  also  an  exception,  for  it 
■would  not  then  be  necessary  for  the  credi- 
tors to  bring  a  different  suit  in  each 
different  court;  and  in  cases  where  the 
code  requires  the  action  to  be  tried  in  a 
particular  county,  there  i.s  also  an  excep- 
tion, for  the  provisions  of  the  statute  must 


be  carried  out.  Uhlfelder  v.  Levy,  9  Cal. 
607. 

Enjoining  mandate  of  supreme  court. 
The  superior  court  cannot  enjoin  the  exe- 
cution of  a  mandate  of  the  supreme  court: 
the  order  of  the  supreme  court  must 
control,  and  any  conflicting  order  from 
the  superior  court  must  be  disregarded. 
Quan  Wo  Chung  &  Co.  v.  Laumeister,  83 
Cal.  384;  17  Am.  St.  Eep.  261;  23  Pac.  320. 

Prevention  of  breach  of  contract  not 
specificaUy  enforceable.  An  injunction 
does  not  lie  to  prevent  the  breach  of  a 
contract  that  cannot  be  specifically  en- 
forced. Peterson  v.  McDonald,  13  Cal.  App. 
644;  110  Pac.  465. 

Justice's  court  action,  where  counter- 
claim exceeds  jurisdiction.  An  action  in 
a  justice's  court  may  be  enjoined,  where 
the  defendant  sets  up  a  counterclaim  in 
excess  of  three  hundred  dollars.  Gregory 
v.  Diggs,  113  Cal.  196;  45  Pac.  261. 

Title  to  public  office  not  triable.  The 
title  to  public  office  cannot  be  tried  in  a 
suit  for  an  injunction.  Barendt  v.  Mc- 
Carthy, 160  Cal.  680;  118  Pac.  228. 

Legislative  action.  The  legislature  has 
the  actual  power  to  pass  any  act  it  pleases, 
and  the  supreme  court  will  not  interfere 
by  injunction,  or  otherwise,  to  prevent  the 
passage  of  such  acts:  the  constitution  has 
provided  other  and  more  appropriate  reme- 
dies.   Nougues  v.  Douglass,  7  Cal.  65. 

Preventing  publication  of  Ubel.  Equity 
has  no  jurisdiction  to  restrain  any  publi- 
cation of  a  literary  work,  upon  the  mere 
ground  that  it  is  of  a  libelous  character, 
and  tends  to  the  degradation  or  injury  of 
the  reputation  or  business  of  the  plaintiff. 
Bailey  v.  Superior  Court,  112  Cal.  94;  53 
Am.  St.  Eep.  160;  32  L.  E.  A.  273;  44  Pac. 
458. 

Joinder  of  other  causes  of  action.  A 
claim  for  damages  done  to  the  possession 
of  the  plaintiff  cannot  be  joined  to  a  bill 
for  an  injunction.  McCann  v.  Sierra 
County,  7  Cal.  121.  In  a  complaint  in 
ejectment,  the  parties  may  seek,  in  addi- 
tion to  a  recovery  of  the  premises,  an 
injunction  restraining  the  commission  of 
trespass  in  the  nature  of  waste,  pending 
the  action,  but  the  grounds  of  equity  in- 
terposition should  be  stated  subsequently 
to  and  distinct  from  those  upon  which  the 
judgment  at  law  is  sought.  Natoma  etc. 
Mining  Co.  v.  Clarkin,  14  Cal.  544.  Tres- 
pass u})on  laud  is  a  legal  injury;  to  threaten 
to  enter  upon  and  waste  it  is  an  equitable 
injury;  but  both  may  be  joined  in  the 
same  complaint,  for  the  statutory  reason 
that  both  are  injuries  to  property.  More 
V.  Massini,  32  Cal.  590.  The  statute  of 
limitations,  against  the  right  of  an  ad- 
joining proprietor  to  maintain  an  action 
for  wrongfully  removing  and  disposing  of 
surface  water,  does  not  commence  to  run 
until  actual  injury  has  been  occasioned  to 
the  adjoining  proprietor.  Galbreath  v. 
Hopkins,  159  Cal.  297;  113  Pac.  174. 


507 


PARTIES — OFFICERS  OF  COKl'ORATIOXS — VERDICT  OF  JURY. 


§526 


Parties  to  action.  Several  abutting 
propertyownera  <lainaKe<l,  or  threatened 
to  he  (laiiiaf^eil,  in  tlie  same  niauiier,  may 
projjerly  join  as  plaintiffs  in  a  suit  to  re- 
strain such  injury;  but,  in  order  to  re- 
cover damages,  they  must  sue  separately. 
Geurkink  v.  I'etaluma,  112  Cal.  306;  44 
Pac.  570.  There  is  a  very  plain  distinc- 
tion between  holding  one  defendant  lialjle 
for  the  past  wrongful  acts  of  all  tlic  other 
-defendants,  and  simply  enjoining  them  all 
from  committing  wrong  iu  the  future. 
Miller  v.  Highland  Ditch  Co.,  87  Cal.  430; 
22  Am.  St.  Rep.  254;  25  Pac.  550.  Par- 
ties to  whom  municipal  bonds  are  to  be 
issued  must  be  made  parties  to  an  action 
for  an  injunction  to  restrain  the  issuance 
of  the  bonds,  and  without  tlieir  presence 
no  binding  deti^rmination  of  the  questions 
can  be  had:  it  is  not  enough  to  sustain 
judgment,  that  none  of  the  persons  en- 
titled to  the  bonds  are  made  parties. 
Hutchinson  v.  Burr,  12  Cal.  103;  Patter- 
son V.  Board  of  Supervisors,  12  Cal.  105. 
Where  the  plaintiff  is  entitled  to  a  certain 
specific  amount  of  the  water  of  a  stream, 
and  the  defendants  severally  diverted 
water  therefrom,  so  that,  in  the  aggregate, 
the  volume  is  reduced  below  the  amount 
to  which  the  plaintiff  is  entitled,  it  is 
proper  to  join  the  defendants  in  an  action 
to  recover  damages  for  the  diversion 
and  to  restrain  its  continuance.  Hillmau 
V.  Newingtou,  57  Cal.  56.  In  an  action  to 
abate  a  public  or  private  nuisance,  all  per- 
sons engaged  in  the  commission  of  the 
■wrongful  acts  which  constitute  the  nui- 
sance may  be  enjoined,  jointly  or  severally: 
it  is  the  nuisance  itself,  which,  if  destruc- 
tive of  public  rights,  may  be  enjoined. 
People  v.  Gold  Run  Ditch  etc.  Co.,  66  Cal. 
138;  56  Am.  Rep.  80;  4  Pac.  1152;  and  see 
Miller  v.  Highland  Ditch  Co.,  87  Cal.  430; 
22  Am.  St.  Rep.  254;  25  Pac.  550.  Where 
an  injunction  is  sought  to  enjoin  several 
separate  and  distinct  parties,  joined  as  de- 
fendants, from  so  depositing  the  tailings 
and  debris  from  their  mining  claims  that 
they  will,  from  natural  causes,  flow  upon 
the  plaintiff's  land,  and  there  is  no  allega- 
tion that  the  defendants  are  acting  iu  col- 
lusion or  in  combination  Avith  one  another, 
there  is  a  misjoinder  of  parties  defend- 
ant. Keyes  v.  Little  York  (lold  Wash- 
ing etc.  Co.,  53  Cal.  724.  In  an  action  for 
an  injunction,  where  the  ]daintiff  claims 
an  appropriative  right  to  take  water  from 
a  stream,  against  several  defendants,  who 
are  alleged  to  be  diverting  water  there- 
from, to  the  injury  of  the  plaintiff,  with 
no  claim  for  joint  damages  against  them 
as  joint  tort-feasors,  it  is  not  necessary 
that  the  defendants  shall  be  acting  in  con- 
cert, or  by  unity  of  design,  in  order  to  be 
joined.  Moutecito  Valley  Water  Co.  v. 
Santa  Barbara,  144  Cal.  578;  77  Pac.  1113. 

Injunction  against  corporation  binds  of- 
ficers. An  injunction  restraining  a  cor- 
poration, its  officers,  agents,  and  employees, 


from  continuing  or  maintaining  a  dam,  is 
binding  upon  all  persons  acting  as  the 
agents  of  the  cori)oration;  and  an  officer 
of  such  corporation  cannot  be  permitted  to 
exercise  the  right  of  severing  his  connec- 
tion therewith,  and  to  acquire  property 
from  others,  for  the  more  purpose  of  treat- 
ing with  contemjit  the  orders  and  decrees 
of  the  court.  Morton  v.  Superior  Court,  65 
Cal.  496;  4  Pac.  489. 

Jury  trial,  and  conclusiveness  of  verdict. 
The  court,  sitting  in  equity,  may  direct, 
whenever  in  its  judgment  it  is  proper,  an 
issue  to  be  framed  upon  the  pleadings  and 
submitted  to  the  jury;  and  upon  the  ver- 
dict of  the  jury,  if  a  new  trial  is  not 
granted,  the  court  will  then  act,  either  by 
dismissing  the  bill  or  bv  granting  the  de- 
cree. Donahue  v.  Meister,  88  Cal.  121;  22 
Am.  St.  Rep.  283;  25  Pac.  1096;  Newman 
V.  Duane,  89  Cal.  597;  27  Pac.  66.  The 
defendant  is  not  entitled  to  a  jury  trial 
of  all  the  issues  in  an  injunction  suit: 
where  a  jury  trial  is  permitted  in  such 
suit,  the  verdict,  whatever  its  form,  is 
merely  advisory  as  to  the  equity  features 
of  the  ease,  if  not  so  as  to  the  damages; 
if  the  verdict  is  general,  and  is  adopted 
by  the  court  as  to  the  damages,  the  de- 
fendant cannot  complain;  and  the  court 
properly  makes  full  findings  upon  the  ques- 
tion of  the  right  to  the  injunction  which 
are  supported  by  the  evidence.  Churchill 
V.  Louie,  135  Cal.  608;  67  Pac.  1052.  Where 
special  issues  in  an  equity  case  are  sub- 
mitted to  a  jury,  the  verdict  is  only  ad- 
visory to  and  not  binding  upon  the  court; 
and  erroneous  instructions  to  the  jury  will 
not  be  reviewed  on  appeal,  where  the 
court  disregards  the  verdict  and  finds  the 
facts  for  itself.  Sweetser  v.  Dobbins,  65 
Cal.  529;  4  Pac.  540;  Schneider  v.  Brown, 
85  Cal.  205;  24  Pac.  715;  Richardson  v. 
Eureka,  110  Cal.  441;  42  Pac.  965;  Scheerer 
V.  Goodwin,  125  Cal.  154;  57  Pac.  789.  The 
verdict  of  the  jury  in  a  suit  for  an  in- 
junction, is  merely  advisory  to  the  court, 
and  erroneous  instructions  to  the  jury  are 
not  ground  for  reversing  the  judgment: 
the  correctness  of  the  decision,  and  not 
the  correctness  of  the  propositions  of  law 
laid  down  for  the  guidance  of  the  jury,  is 
the  question  for  determination  upon  ap- 
jteal.  Richardson  v.  Eureka,  110  Cal.  441; 
42  Pac.  9!)5.  With  respect  to  controverted 
facts  arising  in  suits  in  equity,  the  verdict 
of  the  jury  is  not  conclusive  upon  the 
questions  submitted,  but  is  merely  advi- 
sory: the  judge  may,  when  truth  and  jus- 
tice require  it,  set  aside  the  verdict  and 
order  a  new  trial,  or  may  qualify  or  alter 
any  special  findings,  or  disregard  them  in 
whole  or  in  part,  and  find  the  facts  for 
himself,  or  he  may  apjirove  them  in  v.diole 
or  in  part,  and  if  ai)proved,  they  become 
the  findings  of  court.  Sweetser  v.  Dob- 
bins, 65  Cal.  529;  4  Pac.  540;  Sullivan  v. 
Rover,  72  Cal.  248;  1  Am.  St.  Rep.  51;  13 
Pac.  655.     The  fact  that  an  injunction   is 


§526 


INJUNCTION. 


50» 


prayed  for  in  an  action  of  trespass  does 
not' take  away  any  right  to  have  the  real 
issues  of  fact"^ tried  by  the  jury:  the  right 
to  a  jury  trial  is  not  determined  by  the 
form  of  the  action,  but  b}'  the  nature  of 
the  rights  involved;  and  when  the  asserted 
rights  upon  which  any  remedy  must  rest 
are  legal  rights,  and  cognizable  in  a  court 
of  law,  such  rights  must  be  determined  ac- 
cording to  the  methods  of  a  common-law 
court.  Hughes  v.  Dunlap,  91  Cal.  3S5;  27 
Pac.  642.  The  action  for  trespass  upon 
real  property,  with  a  prayer  for  an  injunc- 
tion, was  very  common  in  the  early  history 
of  this  state:  it  was  frequently  used  to  de- 
termine mining  and  water  rights,  and  it 
was  generally  conceded  that  either  party 
had  the  right  to  a  jury  trial.  Hughes  v. 
Dunlap,  91  Cal.  385;  27  Pac.  642.  An  ac- 
tion to  restrain  the  continuance  or  repeti- 
tion of  a  trespass,  of  such  a  character  as 
to  produce  irreparable  injury,  and  for 
damages  already  suffered,  is  an  equitable 
action,  and  the  issues  of  fact  raised  by  the 
pleadings  should  be  tried  by  the  court,  un- 
less submitted  by  it  to  a  jury:  a  judgment, 
in  such  a  case,  based  upon  a  general  verdict 
of  a  jury,  cannot  stand.  McLaughlin  v.  Del 
Ee,  64  Cal.  472;  2  Pac.  244.  In  a  suit  for 
an  injunction  to  restrain  a  threatened  tres- 
pass upon  land,  and  to  recover  damages 
for  past  trespasses,  where  certain  issues  of 
fact  were  tried  by  the  jury,  and  they  re- 
turned a  verdict  on  all  such  issues  favor- 
able to  the  defendant,  it  is  error  for  the 
court  to  set  aside  the  verdict  of  the  jury 
and  make  findings  contrary  thereto,  and 
render  judgment  in  favor  of  the  plaintiff. 
Hughes  V.  Dunlap,  91  Cal.  385;  27  Pac.  642. 
Findings  and  judgment.  Findings  show- 
ing the  construction  of  a  work  of  a  per- 
manent character,  disturbing  the  plaintiff's 
possession,  and  which,  if  permitted  to  con- 
tinue, will  ripen  into  an  easement,  are  suf- 
ficient to  entitle  a  party  to  an  injunction. 
Richards  v.  Dower,  64  Cal.  62;  28  Pac.  113. 
A  finding  that  "Said  levee  is  upon  the  line 
dividing  the  lands  of  plaintiff  and  defend- 
ant, and  is  built  partly  upon  the  lands  of 
each,"  is  a  sufiicient  finding  that  such  levee 
was  built  upon  the  land  of  che  plaintiff,  to 
sustain  a  judgment  enjoining  the  defendant 
from  destroying  such  levee,  alleged  by  the 
plaintiff  to  have  been  constructed  by  him 
on  his  lands.  Belcher  v.  Murphj^,  81  Cal. 
39;  22  Pac.  264.  Where  all  the  issues 
made  by  the  pleadings  are  found  for  the 
defendant,  an  order  granting  an  injunction 
to  the  plaintiff  is  erroneous;  and  findings 
on  issues  outside  of  the  pleadings,  in  favor 
of  the  plaintiff,  cannot  change  the  effect: 
Van  Horn  v.  Decrow,  136  Cal.  117;  68  Pac. 
473.  Where  an  injunction  is  sought  to  pre- 
vent interference  with  the  possession  of 
a  dwelling,  occupied  by  a  tenant,  an  omis- 
sion to  find  title  in  the  plaintiff's  lessor 
is  immaterial,  that  not  being  a  proper 
subject  of  litigation  on  such  application. 
Zierath  v.  McCann,  20  Cal.  Ajij..  561;   129 


Pac.  808.  The  right  of  the  plaintiff  to  a 
final  judgment  is  absolute,  where  the  court 
adjudicates  that  he  is  entitled  to  a 
perpetual  injunction:  such  adjudication 
definitely  settles  the  rights  of  the  parties 
as  to  matters  litigated;  and  it  is  error  to 
insert  in  the  final  decree,  that  the  defend- 
ant might  apply  to  the  court  to  have  the 
decree  and  restraining  order  modified, 
vacated,  and  set  aside,  on  the  performance 
of  certain  acts.  People  v.  Gold  Run  Ditch 
etc.  Co.,  66  Cal.  155;  4  Pac.  1150.  Find- 
ings by  the  court  are  necessary,  unless 
waived;  but  the  absence  of  such  findings 
from  the  record  is  not  a  fatal  defect,  un- 
less it  affirmatively  appears  that  they  were 
not  waived;  and  where  the  plaintiff  merely 
moves  the  court  to  disregard  the  verdict 
of  the  jury,  and  to  render  its  findings  and 
decision  in  favor  of  the  plaintiff,  there  is 
no  request  for  findings  generally,  but  for 
findings  of  special  import;  nor  is  such 
motion  one  which  counsel  is  authorized  to 
make.  Richardson  v.  Eureka,  110  Cal.  441; 
42  Pac.  965.  The  final  injunction  is  a  mat- 
ter of  strict  right  in  many  cases,  and  is 
granted  as  a  necessary  consequence  of  the 
decree;  but  the  preliminary  injunction  be- 
fore answer  is  not  a  matter  of  strict  right: 
it  is  a  matter  resting  altogether  in  the 
discretion  of  the  court,  and  should  not  be 
granted,  unless  the  injury  is  pressing  and 
the  delav  dangerous.  Santa  Cruz  Fair 
Bldg.  Ass^'n  V.  Grant,  104  Cal.  306;  37  Pac. 
1034.  In  an  action  for  an  injunction,  the 
court  may  give  complete  relief,  if  possible, 
whether  by  mandamus  or  injunction,  or 
both  (Fellows  v.  Los  Angeles,  151  Cal.  52; 
90  Pac.  137) ;  and  under  a  general  prayer 
for  relief,  the  court  may  not  only  quiet 
the  plaintiff's  title,  but  may  also  enjoin 
the  doing  of  certain  acts,  where  the  facts 
alleged  warrant  an  injunction.  Los  An- 
geles V.  Los  Angeles  Farming  etc.  Co.,  152 
Cal.  645;  93  Pac.  869.  Where  the  plaintiff 
prevails  in  an  action  to  quiet  title,  a  decree 
inserted  in  the  judgment,  enjoining  the 
defendant  from  making  any  further  con- 
test on  the  plaintiff's  title,  even  if  not 
strictly  correct,  does  not  injure  the  defend- 
ant: he  is  not  precluded  thereby  from 
availing  himself  of  an  after-acquired  title. 
Reed  v.  Calderwood,  32  Cal.  109.  After 
a  decree  granting  a  perpetual  injunction, 
there  is  no  existing  order  of  injunction 
from  which  an  appeal  can  be  taken:  the 
preliminary  order  of  injunction  is  a  pro- 
visional remedy,  which  is  merged  in  the 
perpetual  injunction  granted  in  the  final 
decree,  and  its  functions  and  operative 
effect  are  thereby  terminated.  Sheward  v. 
Citizens'  Water  Co.,  90  Cal.  635;  27  Pac. 
439.  An  injunction  is  merely  a  remedial 
process;  and  where  the  party  obtaining 
the  injunction  has  also  obtained  judgment 
upon  his  cause,  thus  establishing  his  right 
to  the  main  relief  applied  for,  the  pro- 
priety of  granting  the  right  will  not  be- 
revised  on  appeal.    Hicks  v.  Davis,  4  Cal. 


509 


FINDINGS  AND  JUDGMENT,  KTC. 


§526 


67.  Voluntary  fraternal  orj,'anization8  aro 
not  ret'oguized  as  legal  bodies,  or  as  en- 
titled to  recognition  in  courts  for  the  en- 
forcement of  their  rules,  unless  there  is 
also  involved  the  determination  of  some 
civil  right,  or  some  right  of  ])roiierty;  and 
in  these  cases,  courts  are  limited  to  in- 
quiring whether  the  rules  i)rescril)ed  by 
the  organization  for  the  determiiiatiun  of 
the  right  have  been  followeii;  and  in  all 
matters  of  policy,  or  of  the  internal 
economy  of  the  organization,  the  rules  by 
which  the  members  have  agreed  to  bo 
governed  constitute  the  charter  of  their 
rights,  and  courts  will  not  take  cognizance 
of  any  matter  arising  under  these  rules. 
Lawson  v.  Hewell,  118  Cal.  613;  50  Pac. 
763. 

Irreparable  injury  which  is  ground  for  injunc- 
tion.   iSce  note   1   Am.   St.   Hep.  374. 

Right  to  injunctive  relief  where  complainant 
has  remedy  by  force.    See  note  16  Ann.  Cas.  730. 

Injunction  as  remedy  for  past  injuries.  See 
note  Ann.  C.is.   l<)i:il),  968. 

Injunction  to  prevent  cloud  on  title  by  execu- 
tion sale.    See  note  62  Am.  Dec.  523. 

Injunction  against  spite  fences.  See  note  9 
Ann.   Cas.   734. 

Injunction  to  compel  or  prevent  the  erection, 
maintenance  or  removal  of  fences  or  gates.  See 
note  7  L.  R.  A.   (N.  S.)   49. 

Injunction  to  prevent  improper  use  of  leased 
premises.    See  note  59  Am.  Dec.   70. 

Injunction  against  trespass.  See  notes  11  Am. 
Dec.  498;  53  Am.  Rep.  346;  99  Am.  St.  Rep. 
732. 

Injunction  to  prevent  injury  to  trees  or  timber. 
See  notes  11  Ann.  Cas.  456;  2'2  L.  R.  .\.  233. 

Injunction  as  remedy  for  continuing  or  re- 
peated trespass.    See  note  15  Ann.  Cas.  1235. 

Injunction  against  trespass  by  animals.  See 
note   14  Ann.   Cas.   500. 

Bight  of  lienor  or  creditor  to  restrain  waste  by 
owner  of  realty.    See  note  13  Ann.  Cas.  89. 

Eight  to  enjoin  owner  of  vacant  lots  from  per- 
mitting their  use  for  playing  of  games.  See  noto 
14  Ann.   Cas.   177. 

Injunctive  relief  as  to  cemetery  property, 
burials,  or  removal  of  remains.  See  note  3  L.  R.  A. 
(N.    S.)    482. 

Injunction  to  prevent  removal  of  lateral  sup- 
port.   See  note  68  L.  R.  A.  697. 

Injunction  against  obstructions  in  highway. 
See  note  52   Am.  Rep.   574. 

Injunction  as  remedy  for  wrongful  diversion  of 
watercourse.    See  note  Ann.  Cas.   1912D,    13. 

Injunction  against  draining  sewage  into  stream. 
See  note  48  L.  R.  A.  707. 

Injunction  against  obstruction  of  stream.  See 
note  59  L.  R.  A.  91,  881. 

Injunction  against  construction  of  sewer.  See 
note  60  L.  R.  A.  243. 

Right  of  individual  to  enjoin  act  of  public  offi- 
cials. See  notes  3  Ann.  Cas.  1013;  15  Ann.  Cas. 
1173. 

Injunction  to  restrain  keeping  or  storing  of  ex- 
plosives.   See  note  14  Ann.  Ca.s.  594. 

Injunction  as  remedy  against  injury  to  busi- 
ness or  property  by  strikers.  See  note  4  Ann. 
Cas.    783. 

Injunction  to  prevent  buying  and  selling  of 
non-transferable  tickets.  See  notes  12  Ann.  Cas. 
700;  Ann.  Cas.  1913B,  460;  10  L.  R.  A.  (N.  S.) 
437. 

Injunctive  relief  as  affected  by  comparative  in- 
Jury  to  parties.     .See   note    14    .\iin.   Cas.    19. 

Injunction  to  prevent  breach  of  contract.  See 
note  90  Am.  St.  Rep.  034. 

Injunction  to  restrain  breach  of  contract  not 
capable  of  being  gpeciflcally  enforced.  See  note 
3  .Ann.  Cas.   976. 

Injunction  to  protect  personal  right.  See  note 
37  L.  R.  A.   783. 

Injunction  for  violation  of  legal  right.  See 
note  6  L.  R.  A.  855. 


Right  of  non-union  employees  to  enjoin  strike 
by  union  co-employees.  .S.-<-  note  Ann.  Ca».  1913D, 
3li0, 

Injunction  against  strikes.  See  note  28  L.  R.  A. 
464. 

Allowing  injunction  in  favor  of  party  in  pari 
delicto  against  enforcing  or  otherwise  procecaing 
with   illegal   contract.     S.'.-   note    l.s    I,.    K.   A.   842. 

Injunction  against  collection  of  purchase-money 
where  the  title  to  land  is  defective.  See  note  7 
L.   U.   A.    (N.   S.)    445. 

Injunction  against  crimes  and  criminal  pro- 
ceedings. See  notes  35  Am.  St.  Rep.  670;  1  Ann. 
Cas.  121;  19  Ann.  Cas.  459;  21  L.  R.  A.  84;  2 
L.  R.  A.  (N.  S.)  631;  3  L.  R.  A.  (N.  S.)  622:  21 
L.  R.  A.  (N.  S.)  585;  25  L.  R.  A.  (N.  S.)  193; 
34  L.  R.  .V.   (N.  S.)   454. 

Injunction  against  enforcement  of  void  ordi- 
nance.   See  note   118  Am.   St.   l\ep.   372. 

Injunction  to  prevent  multiplicity  of  suits.  See 
notes  131  Am.  St.  Rep.  30;  20  L.  R.  A.  ( N.  S.) 
848. 

Injunction  against  police  surveillance  of  place 
of  business  or  amusement.  See  notes  5  .Ann.  Cas. 
483  ;   Ann.   Cas.    1913H,    713. 

Injunction  against  prosecution  under  invalid 
ordinance.  See  notes  6  Ann.  Cas.  1013;  10  Ann. 
Cas.  760. 

Right  of  private  individual  to  enjoin  violation 
of  municipal  ordinance  not  nuisance  per  se.  See 
note   13   Ann.   Cas.    1203. 

Injunction  to  restrain  collection  of  taxes  or  as- 
sessments. .See  notes  69  Am.  Dec.  198;  23  Am. 
Rep.   622;    49   Am.   Rep.   287;   53   Am.   Rep.    110. 

Erroneous  or  invalid  levy  or  assessment  as 
ground  for  enjoining  collection  of  tax.  See  notes 
3  .Ann.  Cas.  564  ;    12  Ann.  Cas.   764. 

Injunction  against  pleading  statute  of  limita- 
tions. See  notes  51  Am.  Dec.  700;  75  Am.  Dec. 
84. 

Injunction  against  judicial  proceedings  in  other 
states  or  countries.  See  notes  56  Am.  Rep.  663  ; 
59  Am.  St.  Rep.  879;  10  Ann.  Cas.  26;  16  Ann. 
Cas.  673;  21  L.  R.  A.  71;  25  L.  R.  A.  (N.  S.) 
207. 

Power  of  state  court  to  enjoin  proceedings  In 
federal  court.    See  note  II   Ann.  Cas.   744. 

Injunction  to  restrain  garnishment  proceedings. 
See  note  12  Ann.  Cas.  335. 

Injunction  to  restrain  execution  on  dormant 
Judgment.    See  note  13  Ann.  Cas.  862. 

Injunction  against  execution  sales  or  other  pro- 
ceedings under  final  process.  See  note  30  L.  R.  A. 
99. 

Negligence  as  cause  for  and  as  a  bar  to  injunc- 
tion against  judgment.    See  note  31    L.   K.   -A.   33. 

Injunction  against  judgment  for  defenses  exist- 
ing prior  to  their  rendition.  See  note  31  L.  R.  A. 
747. 

Injunction  against  Judgments  for  want  of  Ju- 
risdiction or  which  are  void.  See  note  31  L.  R.  A. 
200. 

Injunction  against  Judgment  for  errors  and  ir- 
regularities.   See  note  30  L.  R.  A.   70U. 

General  equity  Jurisdiction  in  regard  to  injunc- 
tions against  judgments.  See  note  32  L.  R.  A. 
321. 

Mandatory  injunction  to  compel  removal  of 
structure  which  encroaches  on  adjoining  prop- 
erty.   See  note  36  L.  R.  A.    (N.  S.)   402. 

Mandatory  injunction.  See  notes  20  Am.  Dec. 
389  ;   20  L.  R.  A.   161. 

CODE     COMMISSIONERS'     NOTE.      1.   When 

injunction  will  be  granted.  Where  one  ha.s  an 
outstanding  deed  which  clouds  the  title  of  the 
trne  owner,  on  the  application  of  the  latter, 
equity  will  order  such  deed  to  be  canceled,  and 
BO,  on  like  application,  will  interfere  and  prevent 
a  sale,  and  the  consequent  execution  of  an  im- 
proper deed.  Shattuck  v.  Carson,  2  Cal.  589. 
If  the  complaint  sets  forth  a  lease  and  contract 
to  pay  in  kind,  a  refusal  to  pay  rent,  and  con- 
tains an  allegation  that  the  crop  is  being  re- 
moved, with  intent  to  defraud  the  plaintiff  of  his 
rent,  and  a  prayer  for  an  injunction.  Held, 
that  the  injunction  could  not  issue,  because  the 
plaintiff  did  not  aver  the  insolvency  of  defendant, 
and  an  inability  to  make  the  rent  on  attachment 
or  execution.  (ire£;ory  v.  Hay,  3  Cal.  334.  A 
sheriff  may  be  enjoined  from  sellinR  the  real 
property   of  the   wife  under  an   execution   against 


INJUNCTION. 


§526 

the  husband.  Alverson  T.  Jones,  10  Cal.  9 ".  JO 
Am  Dec.  669.  Such  a  sale  wouid  cloud  tne 
wife's  title  to  the  property,  as  the  deed  of  the 
sheriff  would  convey  to  the  purchaser  a  prima 
facie  title  which  she  would  have  to  overcome  by 
proof  Id.  That  part  of  the  act  which  pre- 
scribes that  no  injunction  shall  be  issued  against 
the  commissioners  appointed  for  the  sale  of  the 
state  interest  within  the  water  hue,  is  invalid. 
CJuy  V.  Hermauce,  5  Cal.  73;  63  Am.  Dec.  So; 
Stone  V.  Elkins,  24  Cal.  127.  Equity  will  take 
jurisdiction  of  an  action  by  attaching  creditors 
of  an  insolvent  to  restrain  proceedings  on  execu- 
tion against  the  property  attached  under  a  judg- 
ment against  the  debtor,  in  favor  of  another,  al- 
leged to  have  been  obtained  by  fraud,  where  all 
the  material  allegations  of  the  complaint,  except 
fraud,  are  admitted,  lieyneman  v.  Dannenberg, 
6  Cal.  3  76;  65  Am.  Dec.  519.  A  ferry-owner, 
prevented  from  obtaining  a  renewal  of  his  license, 
either  by  the  incompetency  or  refusal  of  the 
supervisors  to  act  in  the  premises,  may,  by  in- 
junction, restrain  another  party  from  running  a 
ferry  under  an  illegal  license,  granted  by  the 
couutv  judge,  within  a  mile  of  the  first  estab- 
lished" ferry.    Chard  v.  Stone,   7  Cal.  117. 

The    right   of    a   party    to    enjoin    a    sale    of    his 
property  for  another's  debt,   athrmed  in  Hickman 
V.    O'Xeal,    10    Cal.   294;    Ford   v.    Kigby,    10    Cal. 
449.      The    right    of    homestead    existing,    a    deed 
from   the   sheriff,   under  an  execution   against   the 
husband,  would  be  a   cloud  upon  the  title.    Dunn 
V.    Tozer,    10    Cal.    167.      A.    leased    furniture    to 
B. ;    during  the  lease,   1'.   bought   the   furniture   of 
A.,'  B.   remaining   in   possession    and    acknowledg- 
ing F.'s  title.      J.,  sheriff,  having  an  execution  in 
favor  of  R.    and  against   A.,    levied   on   the   furni- 
ture   as   the   property   of   A.      F.    thereupon    filed 
his     bill     to     enjoin     the     sal'e.      Held,     that     the 
remedy    by    injunction    is    the    only    speedy,    ade- 
quate,  and  unembarrassed  remedy  the   lessor  has 
to    vindicate   his   rights.     Ford   v.    Rigby,    10    Cal. 
449.      The    jurisdiction    of    a    court    to    enjoin    a 
sale   of  real    estate   is   coextensive   with   its   juris- 
diction  to   set   aside,   and   order   to   be   canceled,   a 
deed  of   such   estate.      It   is   not  necessary   lor  its 
assertion  in  the  latter  case,  that  the  deed  should 
be  operative,  if  suffered  to  remain  uncanceled,  to 
pass    the    title,    or   that    the    defense    to    the    deed 
should   rest    in    extrinsic   evidence,    liable    to    loss, 
or  be  available  only  in  equity.     It  is  sufficient  to 
call    into    exercise    the    jurisdiction    of    the    court 
that    the    deed    clouds    the    title    of    the    plaintiff. 
As  in  such  case  the   court  will  remove  the  cloud, 
by   directing    the    cancellation    of    the    deed,    so    it 
will  interfere  to  prevent  a  sale  from  which  a  con- 
veyance    creating     such     a     cloud     would     result. 
Pixley   V.    Huggins,    15    Cal.    127.      The    true    test 
by    which    the    question    whether    a    deed    would 
ci'oud  the  title  of  the  plaintiff  may  be  determined 
is   this:   Would  the  owner  of  the  pmperty,   in   an 
action  of  ejectment  brought  by  the  adverse  party, 
founded  upon  the  deed,  be  required  to  offer  evi- 
dence to  defeat  a  recovery?      If  such  proof  would 
be    necessary,    the    cloud    would    exist,    otherwise 
not.     Pixlev    v.   Huggins,    15    Cal.    127:    Ramsdell 
V.  Fuller,  28  Cal.   37;   87  Am.  Dec.   103;   Thomp- 
son   V.    Lynch,    29    Cal.    189.      A    complaint    alleg- 
ing that   plaintiffs  had,   for  a  long  time,   conveyed 
water    from    a    stream,    for    mining    purposes,    by 
means  of  a  ditch,   and  had   thus  acquired  a  prior 
right   to  the  enjoyment  and  use  of  the  water,  and 
were  in  the  peaceable  possession  thereof  when  de- 
fendants   wrongfully    diverted    the    same,    and    de- 
prived  plaintiffs   thereof,   and   were   continuing   so 
to    do,    is    sufficient    to    entitle    the    party    to    an 
injunction.     Tuolumne    Water    Co.    v.    Cliapman,    3 
Cal.  392.      Where  a  party  has  given  a  promissory 
note,   and  the  payee  has  assigned  the  note,   with- 
out recourse,   after  maturity,   and   suit   is  Virought 
upon   it   by  the   assignee,   the  maker  then  files  his 
bill    against    thp    assignor    and    assignee,    alleging 
fraud    in  obtaining   the   note,   and  praying  for  an 
Injunction,     and     that     the    note    be    canceled,     it 
was    h>dd    thit    the    case    was    a    proper    one    for 
equitable   relief,    and    the   maker  had   the   right   to 
have    the   note   canceled.      Domingo   v.   Getman,    9 
Cal.  97. 

Where  the  statute  for  the  condemnation  of 
land  for  road  purposes  is  unconstitutional,  or  its 
provisions  are  not  strictly  pursued,  or  the  com- 
pensation   IB    not    tendered   to    the    owner,    a    per- 


510 


petual  injunction  against  opening  the  road  will 
be  granted.  Currau  v.  Shattuck,  24  Cal.  431. 
An  injunction  will  be  granted,  at  the  suit  of  th6 
mortgagee  of  real  properly,  to  restrain  the  com- 
mission of  waste  upon  the  premises:  but,  before 
it  can  be  granted,  it  must  appear  that  the  com- 
mission of  the  threatened  waste  will  materially 
impair  the  value  of  the  mortgaged  property,  so 
as  to  render  it  inadequate  security  for  the  mort- 
gaged debt,  and  that  the  defendants  are  insolvent, 
or  unable  to  respond  in  damages  for  the  threat- 
ened injury.  Robinson  v.  Russell,  24  Cal.  473. 
A  sale  by  a  sheriff,  of  real  estate,  upon  an  exe- 
cution, against  the  grantor,  will,  even  if  not 
effectual  to  pass  the  title  to  the  purchaser,  create 
a  doubt  as  to  the  validity  of  the  grantee's  title^ 
and  cast  a  cloud  upon  it,  and  the  grantee  can 
maintain  an  action  to  enjoin  the  sale.  Englund  v. 
Lewis,  25  Cal.  337.  In  an  action  by  the  state 
to  procure  the  cancellation  of  a  patent  for  land, 
sold  without  authority  of  law,  where  the  person 
claiming  under  the  patent  is  engaged  in  remov- 
ing mineral  from  the  land,  the  state  is  entitled 
to  an  injunction  to  restrain  the  defendant  from 
removing  the  same.  People  v.  Morrill,  26  CaL 
352.  Courts  of  equity  may  restrain  the  com- 
mission of  a  trespass  about  to  be  committed,  by 
taking  down  fences  and  opening  a  road  througtL 
the  plaintiff's  land,  in  pursuance  of  an  order  of 
the  board  of  supervisors,  illegally  made.  Grigsby 
V.  Burtnett,  31  Cal.  406;  More  v.  Massini,  32 
Cal.  590.  Where  the  plaintiffs  are  owners  of 
mining  claims  located  in  the  bed  of  a  creek, 
and  defendants  own  claims  situated  on  a  hill 
in  the  vicinity,  the  refuse  matter  from  which  is 
deposited  on  plaintiffs'  claims  to  such  an  extent 
as  to  render  the  working  of  them  impracticable, 
plaintiffs'  claims  being  first  located,  and  valuable 
only  for  the  gold  they  contain.  Held,  that  plain- 
tiffs are  entitled  to  damages  for  the  injuries 
done  their  claims  by  such  deposit,  and  to  an 
injunction  against  the  same  in  future.  Logan  v. 
Driscoll.  19  Cal.  623;  81  Am.  Dec.  90,  Injunc- 
tion will  lie  to  stay  a  threatened  injury  to  a 
right  of  way.  Kittle  v.  Pfeiffer,  22  Cal.  485. 
The  construction  of  a  reservoir  across  the  bed 
of  a  ravine,  for  the  purpose  of  collecting  the 
water  flowing  down  the  same,  for  use  in  irrigat- 
ing a  garden  of  fruit-trees,  gives  the  party  con- 
structing the  same  a  right  of  property  in  the 
reservoir,  and  the  right  to  have  the  wafer  flow 
into  the  same,  of  which  he  cannot  be  divested 
by  persons  subsequently  entering  for  mining  pur- 
poses, and  a  court  of  equity  will  enjoin  miners 
thus  entering  from  injuring  the  reservoir,  or 
diverting  the  water  therefrom.  Rupley  v.  Welch, 
23    Cal.    452. 

2.  When  an  injunction  •srtll  not  be  granted. 
Persons  performing  labor  upon  or  furnishing  ma- 
terials for  a  building  erected  by  the  lessee  upon 
a  leased  lot,  and  who  have  a  lien  for  the  value 
thereof,  are  entitled  to  an  injunction  restrai;ii;ig 
a  judgment  creditor  of  the  lessee,  whose  judg- 
ment is  younger  than  the  lien,  from  removing 
the  building  from  the  lot  when  the  security  is  in- 
sufficient without  such  building.  Barber  v.  Rey- 
nolds, 33  Cal.  497.  If  the  title  to  a  mining  claina 
is  in  dispute,  an  injunction  may  be  granted  to 
preserve  the  property  pending  the  litigation. 
Hess  v.  Winder,  34  Cal.  270.  Where  the  com- 
plaint alleges  that  the  plaintiffs  are  the  owners 
and  in  possession  of  a  tract  of  land:  that  defend- 
ants are  insolvent,  and  threaten  to,  and  wilU 
enter  upon  said  land,  and  by  excavations,  em- 
bankments, and  diverting  valuable  springs  and 
streams  thereon,  despoil  it  of  the  substance  of 
the  inheritance,  and  create  a  cloud  upon  plain- 
tiff's title,  injunction  lies.  Bensley  v.  Mountain 
Lake  Water  Co.,  13  Cal.  306;  73  .A.m.  Dec.  575. 
Where  premises  containing  deposits  of  gold  are 
held  under  a  patent  from  the  United  States,  an 
injunction  lies  to  prevent  persons  from  excavat- 
ing ditches,  digging  up  the  soil,  and  flooding  a 
portion  of  the  premises,  for  the  purpose  of  ex- 
tracting the  gold.  Hensliaw  v.  Clark,  14  CaL 
460:  Boggs  V.  Merced  Mining  Co.,  14  Cal.  279. 
.■Vn  injunction  lies  to  restrain  trespass  in  enter- 
ing upon  a  mining  claim,  and  removing  auriferous 
quartz  from  it,  where  the  injury  threatens  to  be 
continuous  and  irreparable.  It  criniporls  more 
with  justice  to  restrain  the  trespass,  than  to 
leave   the   plaintiff  to  his  remedy  at   law.    Merced: 


511 


INJUNCTION  NOT  GRANTED   WHEN. 


§526 


Mining  Co.  v.  Froinonf,  7  Cal.  317;  68  Am.  Dec. 
2t>'2.  Plaintiff  tooli  212  acres  of  land  under  the 
pobsissory  act  of  this  state,  inclosed  it,  and 
planted  it  with  fruit  and  ornamenlal  trees  and 
shrubbery.  The  defendants  entered  upon  a  por- 
tion of  the  tract  for  mining  purposes,  dug  up 
and  destroyed  the  trees  and  shrubbery,  and 
threatened  to  continue  such  trespass,  claiming 
the  right  so  to  do  by  paying  to  plaintiff  the 
money  value  of  the  trees,  etc.  Plaintiff  sued 
for  damages  for  the  trespasses  committed,  and 
asks  a  perpetual  injunclion  afjainst  future  tres- 
passes. Verdict:  "We,  the  jury,  award  the  plain- 
tiff forty-two  dollars  damages."  Judgment  ac- 
cordingly, the  court  refusing  to  pcrpelnate  tho 
injunction.  Plaintiff  h:id  recovered  a  similar  ver- 
dict in  a  previous  suit.  Held,  that  the  verdict 
is  conclusive  of  the  rights  of  the  parties,  and 
that  perpetual  injunction  against  the  trespasses 
should  issue:  (hat  the  nature  of  the  property, 
destroyed  and  threatened  to  be  destroyed,  is  such 
that  the  injury  is  irreparable;  that  plaintiff  is  not 
bound  to  take  the  mere  money  value  of  the  trees, 
as  they  may  possess  a  peculiar  value  to  him. 
Daubenspeck  v.  Grear,  18  Cal.  443.  A  threatened 
trespass  on  land,  where  the  trespass,  if  com- 
mitted, would  destroy  the  substance  of  the  land, 
which  could  not  be  specifically  replaced,  will  be 
enjoined,  even  if  the  plaintiff  is  in  possession  of 
the  land.  More  v.  JIassini,  32  Cal.  590.  Cutting, 
destroying,  or  removing  growing  timber,  is  ground 
for  an  injunction,  without  an  allegation  of  in- 
solvency. Natoma  Water  etc.  Co.  v.  Clarkin,  14 
Cal.  .544.  In  cases  of  waste,  if  anything  is 
about  to  be  taken  from  the  land,  which  cannot 
be  restored  in  specie,  it  is  no  objection  to  the 
injunction  that  the  party  making  it  may  pos- 
sibly recover  what  others  may  deem  as  equiva- 
lent in  money.  Hicks  v.  Michael,  15  Cal.  107. 
Against  the  cutting  of  timber  the  owner  of  real 
properly  is  entitled  to  an  injunction.  Whilst  the 
timber  is  growing,  it  is  part  of  the  realty,  and 
its  destruction  constitutes  that  kind  of  waste, 
the  commission  of  which  a  court  of  equity  will 
restrain.  When  once  cut,  the  character  of  the 
property  is  changed;  it  has  ceased  to  be  a  part 
of  the  realty,  and  has  become  personalty,  but  its 
title  is  not  changed.  It  belongs  to  the  owner  of 
the  land  as  much  after  as  previously,  and  he  may 
pursue  into  whosesoever  hands  it  goes,  and  is 
entitled  to  all  the  remedies  for  its  recovery 
which  the  law  affords  for  the  recovery  of  any 
other  personal  property  wrongfully  taken  or  de- 
tained from  its  owner.  And  if  he  cannot  find 
the  property  to  enforce  its  specific  return,  he 
maj  waive  the  wrong  committed  in  its  removal 
and  use,  and  sue  for  the  value  as  upon  an  im- 
plied contract  of  sale.  Halleek  v.  Mixer,  16  Cal. 
574.  After  a  decree  foreclosing  a  mortgage,  the 
mortgagor  in  possession  may  be  restrained  from 
the  commission  of  waste.  Whitney  v.  Allen,  21 
Cal.  233;  Robinson  v.  Russell,  24  Cal.  473.  In 
an  action  for  a  trespass  upon  a  mining  claim, 
where  the  complaint  avers  that  defendants  are 
working  upon  and  extracting  the  mineral  from 
the  claim,  and  prays  for  perpetual  injunction, 
and  the  answer  admits  the  entry  and  work,  and 
takes  issues  upon  the  titles:  if  the  jury  to  whom 
the  issue  of  title  is  submitted  finds  in  favor  of 
the  plaintiffs,  it  is  the  duty  of  the  court  to 
grant  the  equitable  relief  sought,  and  perpetually 
enjoin  defendants  from  future  trespasses.  Mc- 
]>aughlin  v.  Kelly,  22  Cal.  211.  Equity  will  re- 
strain a  sale  of  property  for  illegal  tnxes.  since 
a  tax  deed  is  made  prima  facie  evidence  of  title. 
Palmer  v.  Boling.  8  Cal.  388,  and  Fremont  v. 
Boling,  11  Cal.  387,  overruling  De  Witt  v.  Hays, 
2  Cal.  463,  56  Am.  Dec.  352,  and  Robinson  v. 
Gaar,  6  Cal.  275.  Where  an  assessment  and 
sale  for  taxes  would  be  void,  and  the  matters 
making  them  void  do  not  appear  on  the  face  of 
the  tax-collector's  deed,  but  must  be  shown  by 
intrinsic  proof,  and  the  deed  upon  its  face  would 
be  prima  facie  valid,  injunction  may  be  granted 
to  restrain  the  sale.  Burr  v.  Hunt,  18  Cal.  303. 
An  injunction  will  not  be  granted  at  the  suit  of 
the  landlord  against  a  ten.mt  to  restrain  the  re- 
moval of  buildings  erected  by  the  tenant,  if  it 
appears  that  the  landlord  is  not  entitled  to  the 
reversion,  it  not  appearing  thpA  the  security  for 
the  rent  will  be  impaired  by  the  removal.  Per- 
rine    v.   Marsden,    34    Cal.    14.      A   court   will    not 


enjoin  a  tax  sale,  when  it  in  apparent  upon  th« 
face  of  the  proceedings  upon  which  the  pur- 
chaser must  rely  to  make  out  a  case  to  enable 
him  to  recover  under  the  sale,  that  tho  sala 
would  be  void,  liucknall  v.  Story,  36  Cal.  67. 
Equity  will  not  restrain  by  injunction  the  di- 
version of  water  until  the  party  complaining  is 
in  a  condition  to  use  it.  Nevada  County  etc. 
Canal  Co.  v.  Kidd.  37  Cal.  282.  Equity  will  not 
interfere  by  injunction  to  restrain  naked  tres- 
passes, where  there  is  no  waste  committed.  Id. 
Equity  will  not  restrain  the  execution  of  a  judg- 
ment in  forcible  entrj'  and  detainer  against  a 
husband  for  land  claimed  by  the  wife  as  her 
separate  estate,  upon  the  ground  that  siie  was  not 
made  a  parly  to  the  proceedings,  or  that  she  was 
a  sole  trader.  Saunders  v.  Webber,  39  Cal.  287. 
E((uity  will  not  restrain  the  issuance  of  a  patent 
wliicii  dues  not  include  any  part  of  plaintiff's 
land,  nor  cloud  his  title,  though  it  be  admitted 
that  the  patent  would  not  be  void  on  its  face, 
but  would  require  evidence  dehors  to  show  its 
invalidity.  Taylor  v.  Underbill,  40  Cal.  471.  In 
an  action  by  an  individual  to  restrain  the  sale  of 
tide-lands  by  the  state,  it  is  not  sulticient  to 
allege  in  the  complaint  that  the  state  has  no  title, 
but  it  must  be  shown  in  what  manner  the  title 
was  lost.  Farish  v.  Coon,  40  Cal.  33.  It  is  not 
an  abuse  of  discretion  to  deny  the  prayer  for  a 
temporary  injunction  when  all  the  equities  of 
the  complaint  are  denied  by  aflidavits.  Kohler  v. 
Mayor  and  Common  Council,  39  Cal.  510.  A 
judgment  in  ejectment  will  not  be  enjoined  on 
grounds  which  could  have  been  set  up  as  a  legal 
defense  in  the  action  at  law.  Agard  v.  Valencia, 
39  Cal.  292.  An  injunction  should  not  be  granted, 
unless  equitable  circumstances,  beyond  the  allega- 
tion of  irreparable  injury,  be  shown,  as  insol- 
vency, impediments  to  a  judgment  at  law,  or  to 
adequate  legal  relief,  or  a  threatened  destruction 
of  the  property,  or  the  like.  Burnett  v.  White- 
sides,  13  Cal.  15G.  Nor  will  an  injunction  b« 
granted  in  aid  of  an  action  of  trespass,  unless  it 
appear  that  the  injury  will  be  irreparable  and 
cannot  be  compensated  in  damages.  Waldron  v. 
March,  5  Cal.  119.  Where  the  plaintiff  pretends 
no  right  to  the  soil,  but  only  to  a  franchise,  sale 
of  the  realtv  cannot  work  irreparable  damage,  nor 
cloud  the  ti'tle.  De  Witt  v.  Hays,  2  Cal.  463;  56 
Am.  Dec.  352.  An  injunction  will  not  be  granted 
to  restrain  the  commission  of  a  trespass,  where 
the  party  complaining  has  a  complete  and  ade- 
quate remedy  at  law.  Leach  v.  Day,  27  Cal.  643. 
The  trustees  of  a  mining  corporation  will  not  be 
enjoined  from  selling  stock  for  assessments,  in 
cases  where  the  assessment  was  levied  for  the 
purpose  of  paying  the  proper  and  legal  expenses 
of  the  company,  if  the  assessment  does  not  ex- 
ceed the  .Traount  allowed  bv  law.  Sullivan  v.  Tri- 
unfo  Cold  etc.  Min.  Co.,  29  Cal.  585.  When  the 
court  is  satisfied  that  a  wharf  erected  in  tide- 
waters, and  upon  soil  thereunder,  belonging  to 
the  state,  is  not  a  public  nuisance,  an  injunction 
will  be  refused,  or  dissolved,  if  one  has  been 
granted.  People  v.  Davidson,  30  Cal.  379.  When 
there  is  no  jiretense  that  any  injury  was  occa- 
sioned willfully,  and  there  is  no  finding  of  un- 
skillfulness,  an  injunction  will  not  issue  to  pre- 
vent the  exercise  of  a  party's  right  to  irrigate  his 
crops,  although  an  annoyance  or  injury  may 
thereby  be  occasioned  to  the  plaintiffs.  Gibson  v. 
Puehta,  33  Cal.  310.  If  a  .Judgment  by  default 
is  void,  because  of  the  absence  of  the  seal  of  the 
district  court  to  (he  summons,  or  because  of  a 
defect  in  the  certificate  of  the  sheriff  of  the  ser- 
vice of  the  summons,  or  because  of  irregularities 
of  the  clerk  in  entering  the  judgment,  an  injunc- 
tion to  restrain  the  enforcement  thereof  does  not 
lie.  The  remedy  is  by  application  to  the  district 
court  to  quash  the  execution.  Logan  v.  Hilb'gass, 
16  Cal.  200.  In  a  case  where  the  board  of 
supervisors  of  San  .Toaquin.  under  tho  act  of  1860 
(Stats.  1860.  p.  317),  authorizing  them  to  levy 
a  special  tax  for  the  construction  and  repair  of 
seven  public  highways  leading  from  the  city  of 
Ptoekton.  the  fourth  of  which  was  "a  road  run- 
ning from  (he  limit!?  of  Stockton  via  Hamilton's 
Ranch,  known  as  the  Sonora  Road."  levied  and 
collected  the  tax.  and  then.  July  10,  1R60,  passed 
an  order  locating  the  route  of  this  fourth  ri.nd. 
alone  which  plaintiffs  lived,  and  afterwards  as- 
sessed  the   damages   to   the   owners   of   land,    etc., 


§526 


INJUNCTION. 


512 


but  before  they  had  obtained  the  right  of  way 
for  the  road,  passed  another  order  in  March, 
1661,  annulling  the  tirst  order  and  changing  the 
location  of  the  road,  which  rendered  the  lands 
of  plaintiffs  of  less  value.  It  was  held  that  the 
first  order  was  unexecuted;  that  no  rights  of 
plaintiflfs  had  vested;  and  that  the  board  had 
power  to  make  the  second  order;  that  the  first 
order  was  not  in  the  nature  of  a  power  exercised 
and  exhausted,  but  was,  at  most,  a  proposed  mode 
of  executing  a  power,  which  could  be  changed  at 
any  time  before  rights  had  vested  under  it.  Bur- 
kett  V.  Supervisors  of  San  Joaquin,  18  Cal.  702. 
'I  he  mortgagee  of  a  lot  on  which  there  is  a  house 
cannot  enjoin  the  mortgagor  or  his  assigns  Irom 
removing  the  house  I'-rum  the  lot,  except  upon 
proof  that  the  lot,  without  the  house,  will  be  an 
inadequate  security  for  the  mortgage  debt.  Buck- 
out  v.  Swift,  27  Cal.  433;  87  Am.  Dec.  90.  If 
an  order  of  a  board  of  supervisors  laying  out  a 
road  is  unconstitutional,  and  null  and  void  upon 
its  face,  it  does  not  affect  or  cloud  the  title  to 
the  land  over  which  it  passes,  and  an  injunction 
will  not  be  granted  to  restrain  the  carrying  of 
the  order  into  effect,  but  the  party  will  be  left  to 
his  remedy  at  law.  Leach  v.  Day,  27  Cal.  643. 
An  order  whereby  the  bringing  of  an  action  is 
restrained  will  be  reversed,  notwithstanding  an 
undertaking  on  injunction  has  been  given.  King 
V.  Hall,  5  Cal.  82.  Where  the  complaint  and  evi- 
dence show  that  a  defendant  is  in  possession  of 
a  tract  of  land,  claiming  and  holding  under  an 
adverse  title,  and  the  weight  of  evidence  is  in 
favor  of  his  title,  an  injunction  will  not  be  granted 
on  the  application  of  a  party  claiming  title  to 
the  land,  to  prevent  the  defendant  from  cutting 
timber.  Smith  v.  Wilson,  10  Cal.  528.  Plaintiffs 
file  their  complaint  to  enjoin  defendants  from 
diverting  a  certain  quantity  of  the  water  of  Bear 
River,  alleging  that  their  right  to  one  thousand 
inches  of  the  water  of  that  stream,  as  against 
defendants,  was  adjudicated  in  a  former  action. 
In  that  action,  which  was  trespass  for  the  diver- 
sion of  the  water,  it  was  alleged  that  this  quan- 
tity of  the  water  of  the  stream  had  been  appro- 
priated by  the  plaintiffs  for  mill  purposes;  that 
such  quantity  was  necessary  for  their  use,  and 
that  defendants  had  diverted  the  same  to  their 
damage,  etc.  Plaintiffs  had  verdict  and  judg- 
ment for  twenty-one  thousand  eight  hundred  dol- 
lars damages.  It  was  held  that  the  averments 
are  insufficient  to  entitle  nlaintiff  to  an  injunc- 
tion, the  scope  of  the  bill  being  simply  to  en- 
force in  equity  plaintiff's  alleged  right  to  one 
thousand  inches  of  water,  on  the  sole  ground  that 
it  was  adjudged  as  their  right  in  the  former  suit. 
McDonald  v.  Bear  River  etc.  Min.  Co.,  1.5  Cal. 
148.  A  vendor  of  real  estate  made  a  conveyance 
of  it  to  the  vendee,  leaving  a  balance  of  the  pur- 
chase-money unpaid.  The  vendee  afterwards  mort- 
gaged the  same  property  to  a  third  person,  who 
had  knowledge  of  the  vendor's  claim  for  unpaid 
purchase-money.  The  vendor  brought  an  action 
against  the  vendee,  obtained  judgment  for  the 
balance  due,  issued  execution,  and  sold  the  in- 
terest of  the  vendee  in  the  property.  The  mort- 
gagee afterwards  foreclosed  his  mortgage,  and 
was  about  to  sell  the  property.  The  purchaser 
at  the  previous  sale  obtained  an  injunction  to  stay 
the  sale,  which  was  afterwards  dissolved  by  the 
court,  on  the  ground  that  he  had  purchased  merely 
the  vendee's  equity  of  redemption,  as  the  sale 
was  subject  to  the  rights  of  the  mortgagee.  It 
was  held  that  the  judgment  of  the  court  below 
was  correct,  and  that  the  claim  of  the  purchaser 
to  be  subrogated  to  the  equitable  lien  of  the  ven- 
dor, if  available  at  all,  must  be  asserted  in  a 
senarate  equitable  action.  Allen  v.  Phelns,  4  Cal. 
256.  An  injunction  will  not  lie  to  restrain  the 
collection  of  a  judgment,  on  the  ground  that  the 
judgment  was  for  a  balance  of  piirchase-raoney  of 
land  under  covenant  for  a  good  title,  while  in  fact 
the  grantor  had  no  title,  as  long  as  the  purchaser 
against  whom  the  judgment  was  taken,  and  who 
seeks  to  enjoin  it,  remains  in  possession  of  the 
land.  Jackson  v.  Norton,  G  Cal.  187.  Courts  of 
equity  will  not  interfere  to  enjoin  a  judgment 
not  manifestly  wrong,  becauso  of  a  defect  in  the 
evidence.  Pico  v.  Sunol,  6  Cal.  294.  A  stranger 
to  the  title  of  real  property,  though  in  possession, 
cannot  enjoin  the  purchasers  mid  owners  thereof 
from   setting  up  and  enforcing   their   title,   on   the 


ground  that  it  was  fraudulently  and  illegally  ac- 
quired by  them  of  a  third  person,  who  does  not 
complain.  Treadwell  v.  Payne,  15  Cal.  496.  De- 
fendants claiming  title  under  a  Mexican  grant, 
and  a  patent  issued  upon  its  confirmation  by  the 
United  States,  bring  an  action  against  plaintiff's 
for  certain  premises  in  their  occupation;  plain- 
tiffs, claiming  as  United  States  pre-emptioners, 
then  file  their  complaint  in  the  same  court  to  en- 
join defendants  from  introducing  in  evidence  the 
survey,  plat,  or  patent,  on  the  trial  of  the  eject- 
ment, until  the  determination  of  an  action, 
averred  to  be  pending  in  the  United  States  cir- 
cuit court,  by  the  United  States  against  defend- 
ants and  others  claiming  with  them,  to  annul  the 
survey,  plat,  and  patent,  on  the  ground  of  fraud 
in  the  survey,  and  in  procuring  the  patent,  the 
complaint  also  averring  such  fraud.  Held,  that 
injunction  does  not  lie;  that  the  patent,  until  set 
aside,  is  conclusive  evidence  of  the  validity  of 
the  grant,  of  its  recognition  and  confirmation,  and 
also  of  the  regularity  of  the  survey,  and  of  its 
conformity  with  the  decree  of  confirmation;  and 
that  defendants,  claiming  to  be  pre-emptioners 
upon  land  of  the  United  States,  have  no  standing 
in  court  to  resist  the  patent.  Ely  v.  Frisbie,  17 
Cal.  250.  Where  the  board  of  supervisors  of  a 
county  allowed  an  account  presented  for  services 
as  tax-collector,  and  the  auditor  drew  his  warrant 
in  favor  of  E.  for  the  amount,  and  he  assigned 
it  to  defendant  M.,  a  purchaser  in  good  faith 
without  notice.  Held,  that  the  county  cannot  en- 
join its  collection  as  against  M.,  on  the  ground 
that  the  account  was  false  and  fraudulent  as  to 
some  of  its  items,  and  was  allowed  by  the  board, 
through  ignorance  of  the  facts  and  mistake;  that 
the  supervisors  were  acting  within  the  scope  of 
their  authority,  and  the  county  cannot  visit  upon 
an  innocent  party  the  consequences  of  their  negli- 
gence. El  Dorado  County  v.  Elstner,  18  Cal.  144. 
If  the  judgment  and  execution  are  void  upon 
their  face,  an  injunction  will  not  be  granted  to 
restrain  a  sale  of  property  levied  under  the  exe- 
cution, or  the  issuing  of  any  other  execution  on 
the  judgment.  Sanchez  v.  Carriaga,  31  Cal.  170. 
When  an  assessment  is  made  upon  land  in  the 
city  of  San  Francisco,  it  is  not  within  the  prov- 
ince of  a  court  to  interfere  and  order  a  sale  of 
the  land  by  a  decree  rendered  in  an  injunction 
suit,  instituted  by  the  owner  of  the  land  for  the 
purpose  of  preventing  a  sale  under  an  ordinance 
of  the  city.  Weber  v.  San  Francisco,  1  Cal.  455. 
In  all  cases  involving  simply  the  question  of  tax- 
ation, the  issue  is  strictly  one  at  common  law, 
and  equity  cannot  grant  an  injunction.  Minturn 
V.  Hays,  2  Cal.  590;  56  Am.  Dec.  366.  That  the 
assessment  for  state  and  county  taxes  for  1855— 
56,  in  San  Francisco  County,  was  not  based  on 
the  valuation  of  the  city  assessor,  as  required  by 
the  act  creating  the  board  of  supervisors,  passed 
in  1851,  is  not  ground  for  an  injunction  upon  the 
collection  of  the  taxes,  as  the  party  could  have 
appealed  to  the  board  of  equalization  if  ag- 
grieved. Merrill  v.  Gorham,  6  Cal.  41.  An  in- 
junction will  not  lie  to  restrain  the  collection  of 
taxes  due  on  property  unless  it  be  shown  that 
the  injury  resulting  from  the  collection  would  be 
irreparable.  An  averment  of  this  character  must 
appear  in  the  complaint,  and,  if  denied,  it  must 
be  sustained  at  the  hearing.  Ritter  v.  Patch,  12 
Cal.  298.  Courts  of  equity  are  always  ready  to 
grant  relief  from  sales  made  upon  their  decrees, 
where  there  has  been  irregularity  in  the  proceed- 
ings, rendering  the  title  defective,  as  well  when 
the  purchaser  or  parties  interested  have  been 
misled  by  a  mistake  of  law  as  to  the  operation 
of  the  decree  as  when  they  have  been  misled  by 
a  mistake  of  fact  as  to  the  condition  of  the  prop- 
erty, or  the  estate  sold,  if  application  be  made 
to  them  in  suits  in  which  such  decrees  are  en- 
tered, within  a  reasonable  time,  and  the  relief 
sought  will  not  operate  to  the  prejudice  of  the 
just  rights  of  others.  Goodenow  v.  Ewer.  16  Cal. 
470;  76  Am.  Dec.  540.  The  extent  of  the  relief 
in  such  cases  is  matter  resting  very  much  in  the 
sound  discretion  of  the  court.  The  general  rule  is, 
that  the  purchaser  will  be  released  and  a  resale 
ordered,  or  such  new  or  additional  proceedings 
directed  as  may  obviate  the  objections  arising 
from  those  originally  taken,  when  the  conse- 
quences of  the  mistake  are  such  that  it  would  be 
inequitable,   either   to   the   purchaser  or   the   par- 


513 


TAXPxVYERS — ACTIONS  BY,   TO   ENJOIN    WASTE,  ETC. 


^  526a 


ties,  to  allow  the  sale  to  stand.  But  when  tha 
relief  is  suu«ht  in  one  urtion  from  u  piinlui.sii 
made  upon  a  mistake  of  law  to  the  eft'ect  oi  a 
decree  rendered  in  anotlier  action,  it  seems  tlial 
the  ordinary  rules  as  to  mistakes  of  law  should 
apply,  and,  from  such,  courts  of  e(iuity  seldom  re- 
lieve. Id.  \\  here,  in  a  suit  bul'oru  a  justice  of 
the  peace,  defendant  answers,  disputing  plaiix- 
tift's  claim,  and  afterwards,  on  a  day  set  for 
trial,  plaintiff  being  present,  but  defendant  ab- 
sent, and  no  one  appearing  for  him,  the  justice 
renders  judgment  for  plaintiff,  without  cvidenco 
and  "by  default."  as  the  docket  reads,  it  was  held 
that  if  the  justice  erred  in  his  judgment  the 
remedy  is  by  appeal,  and  that  such  error  cannot 
be  corrected  by  eiiuitv.  Hunter  v.  fioole,  17Cal. 
418;  Uomstock  v.  Clemens,  19  Cal.  77.  Plaintitt' 
has  a  deed  of  property  from  H.  &  P.  Subse- 
quently M.,  execution  creditor  of  11.  &  P.,  causes 
the  sherill  to  levy  on  the  property.  Plaintiflf 
files  his  complaint  to  restrain  the  sale,  as  casting 
a  cloud  on  his  title.  Court  below  found  plain- 
tiff's deed  to  be,  in  effect,  a  mortgage.  Held, 
that  the  bill  must  be  dismissed;  that  the  pur- 
chaser at  the  sheriff's  sale  would  only  acquire 
the  interest  of  the  judgment  debtors,  H.  &  P.; 
that  plaintiff's  right  as  mortgagee  would  be  un- 
affected by  the  sale,  and  hence  there  was  no 
necessity  for  equity  to  interfere  in  his  behalf. 
Purdy  V.  Irwin,  18  Cal.  350.  Where  a  party 
moves  for  a  new  trial  and  fails,  he  cannot,  on 
the  same  facts,  enjoin  the  judgment  rendered. 
Collins  V.  Butler,  14  Cal.  22.3.  Defendant,  as 
coroner,  levied  on  and  advertised  for  sale  the  in- 
terest of  T.  in  certain  property  in  the  hands  of 
a  receiver  appointed  in  a  suit  between  J.  &  T.,  as 
partners.  It  was  held  that  the  plaintiff  was  riot 
entitled  to  an  injunction  restraining  the  sale, 
unless  the  injury  would  be  irreparable,  and  this 
must  appear  by  a  clear  showing  of  plaintiffs 
right  to  the  property  and  defendant's  insolvency. 
More  V.  Ord,  15  Cal.  206.  Plaintiff  purchased 
certain  property  under  a  foreclosure  sale,  m.n'le 
a  mortgage  executed  by  one  Pender,  to  which  de- 
cree all  persons  in  interest  were  parties,  among 
them  defendants  here.  The  interest  of  defendants 
Wemple  and  Pender  was  foreclosed  in  the  usual 
form.  Plaintiff  seeks  to  enjoin  a  sale  of  the 
premises  under  a  decree  in  favor  of  Wemplo 
against  Pender,  to  enforce  a  mechanic's  lienr. 
Plaintiff  was  not  a  party  to  the  suit  of  Wemple 
V.  Pender,  and  has  not  yet  got  a  sheriff's  deed. 
It  was  held  that  injunction  does  not  lie;  that 
plaintiff  is  hut  the  purchaser  of  an  equitv,  the 
decree  of  foreclosure  not  cutting  off  the  riehts  of 
the  mortgagor,  Pender:  that  he.  heing  entitled  to 
Dossession  under  the  sheriff's  deed,  .ind  also  hav- 
ing the  equity  of  redemption,  could  disnose  of 
this  right,  and  it  might,  under  our  statute,  be 
sold  for  his  debts;  and  if  he  chose  to  recog.nize 
the  validity  of  Wemple's  lien,  or  its  enforcement, 
or  sale  under  judgment,  plaintiff  cannot  cimnlain, 
his  rights  not  being  affected  by  the  nr.iceedings, 
as  he  was  not  a  party.  Macovich  v.  Wemple,  16 
Cal.  104.  If  a  judgment  by  default  is  void  be- 
cause of  the  absence  of  the  seal  of  the  district 
court  to  the  summons,  or  because  of  a  defect  in 
the  certificate  of  th^  sheriff  of  the  service  of 
summons,  or  because  of  irregularitie,s  of  the  clerk 
in  entering  the  judgment,  an  injunction  to  re- 
strain the  enforcement  thereof  does  not  lie. 
Tjogan  v.  Hillegass,  16  Cal.  200.  Whpre  a  party, 
relying  on  the  verbal  asstiranee  of  the  attorney 
on  the  ifher  side  that  he  would  agree  to  a  state- 
ment, did  not  obtain  the  certificate  of  the  referee. 
such  party  cannot  be  considered  free  from  fault 
and  negligence,  and  he  is  not  in  a  position  to  in- 
voke the  aid  of  equity  to  enjoin  a  judgment  ob- 
tained against  him.  Phelps  t.  Peabody,  7  Cal. 
50.  If  a  party  enters  judgment  for  too  much,  or 
before  the  whole  amount  is  due.  it  is  not  conclu- 
sive, but  only  primary  evidence  of  fraud  to  avoid 


the  judgment.  Patrick  v.  Montader,  1.3  Cal.  442, 
overruling  'I'aatVu  v.  Josephson,  7  Cal.  :Jjti.  \n 
iiijun<tioa  to  stay  proceedings  under  a  judgment 
obtained  by  neglect  of  a  party  or  counsel,  can- 
not be  su.slained,  where,  if  the  neglect  were  ex- 
cusable, full  reliif  might  have  been  had  on  motion 
in  the  original  action.  Borland  v.  'rhornton,  12 
Cal.  440.  For.  to  obtain  the  aid  of  equity,  a 
party  must  show  that  he  has  exhausted  all  proper 
diligence  to  defend  in  the  euit  in  wnicli  judgment 
was  rendered.  Uiddle  v.  Baker.  1  :i  Cal.  304; 
Sparks  v.  L)e  la  Cuerra,  14  Cal.  108.  Nor  can 
defendant,  having  no  defense  to  an  action,  go  into 
equity  and  enjoin  a  judgment  by  default,  on  the 
ground  that  the  sheriff's  return  of  service  on 
him  is  false,  and  that  tie  had  no  notice  of  the 
I)roceeding.  Gregory  v.  Ford,  14  Cal.  141;  7.3 
Am.  Dec.  6.39;  Gibbons  v.  Scott,  15  Cal.  286; 
Logan  v.  Hillegass,  16  Cal.  202.  If  a  judgment 
by  default  is  void  for  the  reason  that  it  was  en- 
tered by  the  clerk,  without  authority,  that  fact 
constitutes  no  ground  for  equity  to  interfere. 
Chipinan   v.   Bowman,   14  Cal.   157. 

3.  Doubtful  cases.  A  purchaser  of  standing 
timber  is  not  entitled  to  an  injunction  to  stay 
waste  committed  by  the  cutting  of  the  timber. 
An  injunction  to  restrain  an  injury  in  the  nature 
of  waste  should  not  be  granted  before  hearing  on 
the  merits,  except  in  cases  of  urgent  necessity, 
etc.  Hicks  v.  Michael,  15  Cal.  107.  Whether 
ditch  property,  situated  in  the  mineral  regions 
of  the  state,  is  to  be  regarded  by  courts  of  eiiuity 
with  the  same  measure  of  favor  which  is  be- 
stowed by  them  upon  land  which  is  cherished  by 
the  owner  for  itself,  is  doubted,  but  not  decided, 
in   Clark   v.  Willett,   35   Cal.   534. 

4.  Granting  and  continuing  injunctions.  How 
far  discretionary.  Granting  and  continuing  an 
injunction  rest,  in  a  great  degree,  in  the  discre- 
tion of  the  court  or  judge.  Hicks  v.  Michael.  15 
Cal.  107.  Abuse  should  be  guarded  against,  and 
the  discretion  ought  to  be  e.-cercised  in  favor  of 
the  party  most  liable  to  be  injured.  Hicks  v. 
Compton,  18  Cal.  206;  De  Witt  v.  Hays,  2  Cal. 
463;  56  Am.  Dec.  352;  Real  del  Monte  etc.  Min. 
Co.  V.  Pond  etc.  Min.  Co.,  23  Cal.  82:  Slade  v. 
Sullivan,  17  Cal.  102.  In  Hess  v.  Winder.  34 
Cal.  270,  a  preliminary  injunction  had  been 
granted.  Upon  appeal  to  the  supreme  court,  a 
judgment  in  favor  of  plaintiff  was  reversed,  and 
a  new  trial  ordered.  Held,  that  granting  a  new 
trial  did  not  entitle  the  defendants  to  a  modifi- 
cation or  dissolution  of  the  injunction,  but  that 
it  should  be  retained. 

5.  Effect  of  injunction.  An  injunction  restrains 
not  only  the  party,  but  other  courts,  on  grounds 
of  comity.  Engels  v.  Lubeck,  4  Cal.  31.  It  can- 
not be  granted  to  affect  the  rights  of  parties  who 
cannot  be  heard,  and  who  are  not  secured  by 
the  undertaking.  Patterson  v.  Board  of  Super- 
visors, 12  Cal.  105.  A  violation  of  an  injunc- 
tion order,  by  the  defendant's  agents,  servants, 
or  employees,  is,  in  law,  a  violation  by  the  de- 
fendant himself,  so  as  to  render  him  liable  for 
contempt.  Field  v.  Chapman.  13  .Abb  Pr.  .T20; 
Field  V.  Hunt,  22  How.  Pr.  329;  Field  v.  Hunt, 
24  How.  Pr.  463:  Field  v.  Chapman.  15  .\bb.  I'r. 
434;  People  v.  Albanv  etc.  R.  R.  Co..  12  Abb. 
Pr.  171;  20  How.  Pr.  358;  Neale  v.  Osborne,  15 
How.   Pr.   81. 

6.  Revival  of  injunction.  The  court,  when  the 
matter  has  been  once  disposed  of.  may.  on  propei" 
showing,  revive  an  injunction  once  dissolved,  or 
grant  an  injunction  previously  denied,  and  this 
is  the  extent  of  its  power.  Hicks  v.  Michael.  15 
Cal.  107.  When  a  preliminary  injunction  is  dis- 
solved upon  granting  a  nonsuit,  and  the  judtrment 
is  afterwards  reversed  on  appeal,  the  plaintiff. 
Tipon  a  proper  ap^ilication.  \%  entitled  to  a  re- 
newal of  the  ininnction.  Harris  v.  McGregor.  20 
Cal.  124:  see  also  Hess  v.  Winder,  34  Cal.  370. 
cited   in   subd.   4   of  this  note. 


§  526a.  Actions  by  taxpayers  to  enjoin  illegal  expenditure  or  waste  by 
public.  An  action  to  obtain  a  .ind'jmont,  restraining:  and  preventine  any 
illetral  expenditure  of,  waste  of,  or  injury  to,  the  estate,  funds,  or  other 
property  of  a  county,  town,  city  or  city  and  county  of  the  state,  may  he 
maintained  against  any  oiificer  thereof,  or  any  agent,  or  other  person,  acting 

1  Fair. — 33 


§527 


INJUNCTION. 


514 


in  its  behalf,  either  by  a  citizen  resident  therein,  or  by  a  corporation,  who 
is  assessed  for  and  is  liable  to  pay,  or,  within  one  year  before  the  commence- 
ment of  the  action,  has  paid,  a  tax  therein.  This  section  does  not  affect  any 
ridit  of  action  in  favor  of  a  county,  city,  town,  or  city  and  county,  or  any 
public  officer;  provided,  that  no  injunction  shall  be  granted  restrainina;  the 
offering  for  sale,  sale,  or  issuance  of  any  municipal  bonds  for  public  improve- 
ments or  public  utilities. 


Added  by  Stats.  1909, 
1913,   adding  the  pro- 


Legislation  §  526a.  1 
p.  578. 

2.  Amended  by  Stats 
viso  at  end  of  section. 

Taxpayer's  action  to  enjoin  illegal  public 
expenditures.     A  board  of  supervisors  be- 
fore   the    adoption    of    this    section    could 
not,    at    the    suit    of    a    taxpayer,    be    re- 
strained  from   incurring   liabilities   which 
could   not   be   a   legal   charge   against   the 
county  (Linden  v.  Case,  46  Cal.  171),  nor 
from  "^ allowing    an    alleged    illegal    claim; 
nor  could  the  county  auditor  be  enjoined 
from    drawing   the   same,   nor   the    county 
treasurer  from  paving  it.   McBride  v.  New- 
lin,  129  Cal.  36;  61  Pac.  577.     Every  tax- 
payer is  interested  in  the  amount   of  the 
taxes  to  be  collected  on  his  property,  and 
he  may  properly  commence  proceedings  to 
enjoin   a   city   council   from   doing   an   act 
which   may   result   in   an   addition   to   the 
burdens  of  taxation.   Schumacker  v.  Tober- 
man,  56  Cal.  508.     A  taxpayer  of  a  county 
has  such  an  interest  in  the  proper  applica- 
tion of  funds  belonging  to  the  county,  that 
he    mav    maintain    an    action    to    prevent 
their    withdrawal    from    the    treasury    in 
pavment  or  satisfaction  of  demands  which 
have  no  validity  against  the  county;  and 
he  may  sue  to  enjoin  the  county  auditor 
from  drawing  his  warrant  in  payment  for 
the  purchase  of  land,  of  which  no  notice 
has  been  published  (Winn  v.  Shaw,  87  Cal. 
631;  25  Pac.  968);  under  this  section,  the 
right  to   sue  to   prevent   illegal   payments 
by  a  county  treasurer  is  limited  to  a  resi- 
dent citizen   or  corporation,  who  is  liable 
to  pay  a  tax  in  the  county,   or  who   has 
paid    a  tax   therein    one   year   before    the 
commencement  of  the   action.    Thomas   v. 
Joplin.  14  Cal.  App.  662;  112  Pac.  729.     A 
comjilaint  to  enjoin  the  allowance  and  pay- 
ment of  an   illegal   claim,  which  does  not 
allege   that   any   claim   therefor   has   been 
made  out  or  filed  with  the  board  of  super- 
visors, or  that  any  such  claim  will  be  pre- 
sented,  is   fatally    defective.    McBride    v. 
Newlin,  129  Cal.  36;  61  Pac.  577;  and  see 
Barto   V.   Board   of   Supervisors,    135    Cal. 


494;    67    Pac.    758.     And   he    may    sue   to 
enjoin    the    consummation    of    an     illegal 
contract,  where  it  is  proposed  to  take  all 
the  public  moneys  of  the  municipality  out 
of  the  hands  of  the  legal  custodian,  and 
place  them  in   the  possession  and   control 
of  a  private   corporation    (Yarnell  v.   Los 
Angeles,  87  Cal.  603;  25  Pac.  767);  and  he 
may    sue    to    prevent    an    untrue    official 
declaration  of  the  result  of  an  election  on 
a  proposition  to  issue  bonds,  and  to  have 
the    true    declaration    made,    whether    the 
result  of  the  election  be  for  or  against  the 
issuance  of  the  bonds  (Gibson  v.  Board  of 
Supervisors,    80    Cal.    359;    22    Pac.    225); 
and  he  may  maintain  an  action  to  restrain 
a  board  of  education  from  drawing  drafts 
for  compensation  for  services  rendered  and 
to  be  rendered  under  an  appointment  from 
the  board,  which  is  unauthorized  by  law; 
and  an  objection,  that  the  plaintiff  cannot 
maintain   the   action   because  he   does   not 
show  that  he  will  sustain  any  special  in- 
jury, different  from  that  of  the  public  at 
large,  is  untenable  (Barry  v.  Goad,  89  Cal. 
215;    26    Pac.    785);    and    a   taxpayer   can 
restrain  any  illegal  act  which  will  increase 
fhe  burden   of  taxation;   but  it  is  not  so 
clear  when  he  can   compel  affirmative  ac- 
tion, although  he  can,  by  mandamus,  com- 
pel an  assessor  to  assess  property  subject 
to  assessment.    Gibson  v.  Board  of  Super- 
visors, SO   Cal.  359;   22  Pac.  225.     A  com- 
plaint,   under    this    section,   is    insufficient, 
which  does  not  allege  the  plaintiff's  citizen- 
ship.   Thomas  v.  Joplin,  14  Cal.  App.  662; 
112  Pac.  729. 

Circulation  of  void  bonds.  Bonds  of  a 
municipal  corporation,  void  in  the  hands 
of  an  innocent  holder,  are  not  a  charge 
against  the  city,  and  their  circulation  can- 
not be  enjoined.  McCoy  v.  Briant,  53  Cal. 
247. 

Eight  of  county  to  maintain  action  to  restrain 
expenditure  of  state  funds.  See  note  Ann.  Gas. 
1913C,  669. 

Right  of  taxpayer  in  absence  of  statute  to  en- 
join unlawful  expenditures  by  municipality.  See 
note  36  L.  R.   A.    (N.   S.)    1. 


§  527.  Injunction.  Notice.  Party  obtaining  order  must  be  ready.  De- 
fendant entitled  to  continuance.  Precedence.  An  injunction  may  be 
granted  at  any  time  before  judgment  upon  a  verified  complaint,  or  upon 
affidavits  if  the  complaint  in  the  one  case,  or  the  affidavits  in  the  other,  show 
satisfactorily  that  sufficient  grounds  exist  therefor.  A  copy  of  the  com- 
plaint or  of  the  affidavits,  upon  which  the  injunction  was  granted,  must,  if 
not  previously  served,  be  served  therewith.     No  preliminary  injunction  shall 


515 


NOTICE — CONTINUANCE — PRECEDENCE. 


§527 


be  granted  without  notice  to  the  opposite  party;  nor  shall  any  temporary 
restraining:  order  be  ijranted  without  notice  to  tlie  opposite  party,  unless  it 
shall  appear  from  facts  shown  by  affidavit  or  by  the  verified  comi)laint  that 
great  or  irreparable  injury  would  result  to  the  applicant  before  the  matter 
can  be  heard  on  notice.  In  case  a  temporary  restraining?  order  shall  be 
granted  without  notice,  in  the  contingency  above  specified,  the  matter  shall 
be  made  returnable  on  an  order  retpiiring  cause  to  be  shown  why  the  in- 
junction should  not  be  granted,  on  the  earliest  day  that  the  business  of  the 
court  will  admit  of,  but  not  later  than  ten  days  from  the  date  of  such  order. 
When  the  matter  first  comes  up  for  hearing  the  party  who  obtained  the 
temporary  restraining  order  must  be  ready  to  proceetl  and  must  have  sei-ved 
upon  the  opposite  party  at  least  two  days  prior  to  such  hearing,  a  copy  of 
the  complaint  and  of  all  affidavits  to  be  used  in  such  application  and  a  copy 
of  his  points  and  authorities  in  support  of  such  application;  if  he  be  not 
read}'',  or  if  he  shall  fail  to  serve  a  copy  of  his  complaint,  affidavits  and 
points  and  authorities,  as  herein  required,  the  court  shall  dissolve  the  tem- 
porary restraining  order.  The  defendant,  however,  shall  be  entitled,  as  of 
course,  to  one  continuance  for  a  reasonable  period,  if  he  desire  it,  to  enable 
him  to  meet  the  application  for  the  preliminary  injunction.  The  defendant 
may,  in  response  to  such  order  to  show  cause,  present  affidavits  relating  to 
the  granting  of  the  preliminary  injunction,  and  if  such  affidavits  are  served 
on  the  applicant  at  least  two  days  prior  to  the  hearing,  the  applicant  shall 
not  be  entitled  to  any  continuance  on  account  thereof.  On  the  day  upon 
which  such  order  is  made  returnable,  such  hearing  shall  take  precedence  of 
all  other  matters  on  the  calendar  of  said  day,  except  older  matters  of  the 
same  character,  and  matters  to  which  special  precedence  may  be  given  by 
law.  When  the  cause  is  at  issue  it  shall  be  set  for  trial  at  the  earliest  pos- 
sible date  and  shall  take  precedence  of  all  other  eases,  except  older  matters 
of  the  same  character,  and  matters  to  which  special  precedence  may  be  given 
by  law. 

the  p.irties,   or  unless  the   cause  be  set  for  trial 
upon  its  merits." 

3.  Amendment  by  Stats.  1901,  p.  137;  un- 
constitutional.   See  note  ante,  §  5. 

4.  .\mended  by  Stats.  1907,  p.  341,  to  read: 
"§  52  7.  An  injunction  may  be  granted  at  any 
time  before  judgment  upon  a  verified  complaint, 
or  uijon  affidavits,  if  the  complaint  in  the  one 
case,  or  the  affidavits  in  the  other,  show  satisfac- 
torily that  suihcient  grounds  exist  therefor.  A 
copy  of  the  complaint  or  of  the  affidavits,  upon 
which  the  injunction  was  granted,  must,  if  not 
previously  served,  be  served  therewith.  No  in- 
junction granted  prior  to  the  trial  of  the  causB 
sh;i!l  continue  in  force  longer  than  twelve  months, 
after  answer  filed,  except  by  consent  of  the  par- 
ties, unless  the  cause  has  been  set  for  trial  upon 
its  merits,  or  unless  the  party  in  whose  favor  it 
was  granted  has  sought  to  have  the  cause  so  set 
for  trial,  and  the  failure  to  set  it  ha.s  not  been 
due  to  his  fault."  The  code  commissioner  said: 
"The  amendment  permits  the  issuing  of  the  in- 
junction upon  a  verified  complaint  at  any  time 
before  judgment,  instead  of  restricting  the  time 
to  the  issuing  of  the  summons,  and  also  permits 
the  injunction  to  remain  in  force  for  a  longer 
period  than  twelve  months,  if,  within  that  time, 
the  party  in  whose  favor  it  is  granted  seeks  to 
have  the  cause  set  for  trial,  and  the  failure  to 
set  it  was  not  due  to  his  fault." 

5.  .\mended  by  Stats.  1911.  p.  59. 

Application  before  complaint  filed.  It 
is    not    necessarv    to    wait    until    the    coin- 


Complaint,  verification  of.    Ante,  §  446. 
Service   by   sheriff.     See   Sheriff's   Duties,    Pol. 
Code,  §§  4157  et  seq. 

Legislation  §  527.  1.  Enacted  March  11.  1872 ; 
based  on  Practice  Act,  §  113  (New  Yorlv  Code, 
§  220),  the  only  change  being  in  the  third  sen- 
tence, which  read:  "No  injunction  shall  be 
granted  on  the  complaint,  unless  it  be  verified 
by  the  oath  of  the  plaintiff,  or  some  one  in  his 
behalf,  that  he  the  person  malting  the  oath  has 
read  the  complaint,  or  heard  the  complaint  read, 
and  knows  the  contents  thereof,  and  the  same  is 
true  of  liis  own  knowledge,  except  the  matters 
therein  stated  on  infoimalion  and  belief,  and  that 
as  to  those  matters  he  believes  it  to  be  true." 
When  enacted  in  1872,  the  section  read:  "§  527. 
The  injunction  may  be  granted  at  the  time  of  is- 
suing the  summons,  upon  the  complaint,  and  at 
any  time  afterwards,  before  judgment,  upon  affi- 
davits. The  complaint  in  the  one  case,  and  the 
affidavits  in  the  other,  must  show  satisfactorily 
that  sufficient  grounds  exist  therefor.  No  injunc- 
tion can  be  granted  on  the  complaint  unless  it  is 
verified.  When  granted  on  the  complaint,  a  copy 
of  the  complaint  and  verification  attached  must 
be  served  with  the  injunction;  when  granted  upon 
affidavit,  a  copy  of  the  affidavit  must  be  served 
with  the  injunction." 

2.  Amended  by  Stats.  1895,  p.  51,  adding,  at 
the  end  of  the  section,  the  sentence,  "No  injunc-' 
tion  granted  prior  to  the  actual  trial  of  the  cause 
wherein  it  is  granted  shall  continue  in  force  for 
a  longer  period  than  twelve  months  from  the  time 
such  injunction  was  granted,  except  by  consent  of 


§527 


INJUNCTION. 


516 


plaint  is  filed,  before  making  application 
to  the  judge  for  a  restraining  order  or  a 
temporary  injunction,  either  of  which 
takes  effect  only  upon  the  filing  of  the 
complaint  and  the  bond  or  undertaking 
required;  the  usual  practice  of  presenting 
the  complaint  in  advance  of  the  filing,  and 
obtaining  the  order  or  the  allowance  of 
the  writ,  is  regular,  and  not  in  conflict 
with  the  statute;  the  order  or  writ  can 
then  be  issued  with  the  summons.  Heyman 
V.  Landers,  12  Cal.  107. 

Sufficiency  of  verified  complaint.  Where 
a  verified  complaint  is  the  basis  for  the 
relief  sought,  it  takes  the  place  of  an 
aflfidavit,  and  must  be  treated  as  such;  and 
the  facts  so  stated  must  stand  the  test 
to  which  oral  testimony  would  be  sub- 
jected. Willis  V.  Lauridson,  161  Cal.  106; 
118  Pac.  530.  W^here  the  verified  com- 
plaint shows  the  plaintiff's  right  to  an 
injunction,  pendente  lite,  restraining  the 
defendant  from  committing  a  breach  of 
contract,  and  to  have  the  same  continued 
in  force  until  judgment,  to  prevent  the 
relief  sought  from  being  abortive,  and  a 
temporary  injunction  was  granted,  it  is 
error  for  the  court  to  dissolve  it.  Farnum 
V.  Clarke,  148  Cal.  610;  84  Pac.  166.  A 
complaint  for  an  injunction,  otherwise  un- 
supported, which  is  open  to  attack  on 
general  demurrer,  is  insufficient.  Willis  v. 
Lauridson,  161  Cal.  106;  118  Pac.  530. 
Where  the  ultimate  facts  pleaded  warrant 
the  temporary  injunction  applied  for,  it 
is  the  duty  of  the  court  to  grant  such  re- 
lief upon  a  verified  com])laint,  in  the 
absence  of  such  a  counter-showing  as 
would  fully  overcome  or  impeach  the 
averments  of  the  complaint.  Porters  Bar 
Dredging  Co.  v.  Beaudry,  loCal.  App.  751; 
115  Pae.'951. 

Amended  complaint  as  affidavit.  An 
amended  complaint  is  a  sufficient  affidavit; 
and  the  court  has  jurisdiction  to  grant  an 
injunction,  after  summons  issued,  upon 
such  complaint  alone.  Smith  v.  Stearns 
Eancho  Co.,  129  Cal.  58;  61  Pac.  662. 

Effect  of  amended  bill.  The  court  has 
discretion  to  permit  the  filing  of  an 
amended  bill  to  su]jj)ort  a  preliminary  in- 
junction already  issued;  and  where  the 
amended  bill  shows  good  ground  for  the 
injunction,  it  is  not  error  to  refuse  to  dis- 
solve the  writ,  merely  because  the  original 
bill  is  defective.  Tehama  County  v.  Sisson, 
152  Cal.  167;  92  Pac.  64.  An  amended 
complaint,  by  leave  of  the  court  or  judge, 
may  be  filed  without  prejudice  to  an  in- 
junction previously  granted,  and,  when 
thus  filed,  the  injunction  will  not  be  dis- 
solved by  reason  thereof.  Barber  v. 
Keynolds,  33  Cal.  497. 

Mode  of  service  of  injunction.  The 
code  iloes  not  iiro\  ide  how  or  Viy  whom  an 
injunction  shall  be  served;  but  the  im- 
portant matter  is,  that  the  i)arty  enjoined 
shall  have  notice;  and  the  statute  being 
silent,  it  is  sufficient  if  service  is  made  in 


conformity  with  the  mode  prescribed  with 
reference  to  service  of  summons.  Golden 
Gate  etc.  Mining  Co.  v.  Superior  Court, 
65  Cal.  187;  3  Pac.  628;  Hibernia  Sav.  & 
L.  Soc.  V.  Clarke,  110  Cal.  27;  42  Pac.  425. 

Sufficiency  of  service  on  attorney.  An 
order  to  show  cause  why  a  corptrration 
should  not  be  punished  for  contempt  in 
violating  an  injunction,  may  be  served  on 
the  attorney  for  the  corporation  in  the  in- 
junction suit,  when  its  managing  agents 
conceal  themselves  for  the  purpose  of 
avoiding  service.  Eureka  Lake  etc.  Canal 
Co.  V.  Superior  Court,  66  Cal.  311;  5  Pac. 
490. 

Actual  knowledge  of  injunction.  Per- 
sonal knowledge  of  an  order  of  injunction, 
obtained  by  a  party  through  being  present 
in  court  at  the  time  the  order  was  made, 
would  probably  be  sufficient  to  bind  such 
party,  without  service;  but  information 
given  to  the  attorney  of  such  party,  by  the 
attorney  of  the  adverse  party,  cannot  be 
considered  as  binding  either  the  attorney 
or  his  client.  Elliott  v.  Osborne,  1  Cal.  396. 
Where  the  officers  and  agents  of  a  corpora- 
tion have  actual  notice  of  an  injunction 
against  the  corporation,  they  are  bound  by 
it,  although  it  was  not  served.  Golden  Gate 
etc.  Mining  Co.  v.  Superior  Court,  65  Cal. 
187;  3  Pac.  628;  and  see  Ex  parte  Cottrell, 
59  Cal.  417.  Disobedience  of  any  lawful 
order  or  process  of  the  court  is  a  contempt 
of  its  authority,  and  persons  guilty  of  such 
disobedience  may  be  proceeded  against. 
Service  of  such  order  or  process,  or  a  de- 
maud  that  it  be  complied  with,  is  not  a 
condition  precedent  to  the  issuance  of  an 
attachment  for  disobedience  thereof.  Ex 
parte  Cottrell,  59  Cal.  420. 

Duration  of  preliminary  injunction.  The 
twelve  months'  limit  of  this  section,  be- 
yond which  a  preliminary  injunction  ceases 
to  operate,  if  certain  conditions  do  not 
exist,  applies  equally,  whether  the  injunc- 
tion is  granted  after  notice  or  ex  parte; 
and  it  is  proper  for  the  court  to  ascertain 
the  facts,  and  to  declare  by  its  order  that 
an  injunction  is  no  longer  in  force,  if  the 
facts  warrant  such  deduction.  German  Sav. 
&  L.  Soc,  5  Cal.  App.  215;  89  Pac.  1063. 

Preliminary  injunction  not  adjudication 
of  rights.  The  granting  or  denying  of  a 
preliminary  injunction  does  uot  amount  to 
an  adjudication  of  the  ultimate  rights  in 
controversy.  Miller  &  Lux  v.  Madera 
Canal  etc."  Co.,  155  Cal.  59;  22  L.  R.  A. 
(N.  S.)  391;  99  Pac.  502. 

Mandatory  preliminary  injunction.  Man- 
datory preliminary  injunctions  are  seldom 
granted,  and  only  in  a  peculiar  class  of 
extreme  cases;  the  code  definition  of  an 
injunction  omits  the  mamlatory  ingredient, 
and  there  is  nothing  in  our  code  more 
favorable  to  mandatory  injunctions  than  is 
to  be  found  in  the  general  current  of  Eng- 
lish and  American  authority.  Gardner  v. 
Stroever,  81  Cal.  148;  6  L.  R.  A.  90;  22 
Pac.  483.     A  very  strong  and  urgent  case 


517 


APPEAL — REMEDY — DISCRETION — FINAL    IIEAHINQ. 


§527 


is  required  to  justify  a  mandatory  pre- 
liminary iiijunotiou:  a  floar  case  of  jiros- 
pective  injury,  for  which  the  plaiiitifT  lias 
no  adequate  remedy  at  law,  is  indispen- 
sable. Gardner  v.  Stroever,  81  Cal.  148;  6 
L.  R.  A.  90;  22  Pac.  4S3;  S9  Cal.  2();  2(5 
Pac.  618;  Hageu  v.  Beth,  118  Cal.  330;  50 
Pac.  425. 

Appeal  from  ex  parte  injunction.  An 
appeal  lies  from  an  ex  fiarte  order  <,'rant- 
inu;  or  dissolvinfr  an  injunction,  the  same 
as  from  an  order  made  upon  notice,  or 
upon  order  to  show  cause.  Sullivan  v. 
Triunfo  etc.  Mining  Co.,  33  Cal.  385. 

Keraedy  for  improper  preliminary  in- 
junction. The  only  remedy  for  iniiiro[)erly 
granting  an  injunction  pendente  lite,  is  a 
motion  to  dissolve  the  writ,  or  an  appeal 
from  the  order  granting  it.  Lange  v.  Su- 
perior Court,  11  Cal.  App.  1;  103  Pac.  908. 

Discretion  of  court.  The  discretion  of 
the  court  in  granting  and  dissolving  in- 
junctions must  be  regulated  by  sound  and 
just  rules;  as,  for  a  court  of  chancery  to 
interfere  in  some  cases  might  lead  to  the 
very  harilshij)s  and  irreparable  injury 
which  is  the  ground  of  the  claim  of  the 
plaintiff  for  its  interference;  and  the 
court  should  not  interpose  when  long  de- 
lays have  intervened  since  the  alleged 
injury,  or  cause  of  it,  existed,  nor  unless 
some  equitable  circumstances  beyond  the 
general  allegation  of  irreparable  injury  is 
shown,  such  as  insolvency,  or  impediments 
to  a  judgment  at  law  or  to  adequate  legal 
relief,  or  a  threatened  destruction  of  the 
[)roperty,  or  the  like.  Burnett  v.  White* 
sides,  13  Cal.  156.  A  preliminary  injunc- 
tion is  not  a  matter  of  right:  an  application 
therefor  is  addressed  to  the  discretion  of 
the  court  (Lagunitas  Water  Co.  v.  Marin 
Countv  Water  Co.,  163  Cal.  332;  125  Pac. 
351;  Marre  v.  Union  Oil  Co..  17  Cal.  App. 
209;  119  Pac.  104),  to  be  governed  by  the 
nature  of  the  case  (Ilicks  v.  ]\Iichael,  15 
Cal.  107);  and  its  action  thereon  will  not 
be  reviewed  on  appeal,  except  for  abuse 
of  discretion  (Santa  Cruz  Fair  Bldg.  Ass'n 
V.  Grant,  104  Cal.  306;  37  Pac.  1034;  Porter 
V.  Jennings,  89  Cal.  440;  26  Pac.  965);  and 
w'here  the  court  refused  to  grant  a  motion 
for  an  injunction  pendente  lite,  the  ap- 
pellate court  will  not  interfere,  unless  the 
right  clearly  appears  to  exist.  Gower  v. 
Andrew,  .59  Cal.  119;  43  Am.  Rep.  242. 
The  question  of  granting  or  refusing  a 
preliminary  injunction,  after  answer  deny- 
ing the  equities,  is  one  calling  for  the  exer- 
cise of  the  sound  discretion  of  the  court, 
and  its  decision  will  not  be  disturbed  on 
appeal.  Godev  v.  Godev,  39  Cal.  157; 
Beaudry  v.  Felch,  47  Cal.  IS,"?.  It  is  not 
an  abuse  of  discretion  for  the  trial  court 
to  refuse  to  grant  a  preliminary  injunc- 
tion, at  the  instance  of  a  riparian  pro- 
prietor, where  no  substantial  injury  is 
shown  (Lagunitas  Water  Co.  v.  Marin 
County  Water  Co.,  163  Cal.  332;  125  Pac. 
351);  nor  where  it  is  not  shown  that  the 


defendant  is  insolvent,  or  that  any  judg- 
ment which  the  court  might  finally  make 
in  favor  of  the  jdaintifT  would  be  ren<lereil 
iiiefTectual  because  of  such  refusal.  Marre 
v.  Cnion  Oil  Co.,  17  Cal.  App.  209;  119 
Pac.  104.  A  temi)orary  injunction  may 
sometimes  be  pro[)erly  refused  upon  such 
facts  as  would  entitle  the  i)arty,  of  right, 
to  an  injunction  on  final  liearing.  Santa 
Cruz  Fair  Bldg.  Ass'n  v.  (Jrant,  104  Cal. 
306;  37  Pac.  1034.  It  is  within  the  dis- 
cretion of  the  court  to  grant  an  injunction 
to  restrain  a  sheriff's  sale,  where  it  will 
cast  a  cloud  on  the  title;  but,  after  the 
sale  is  made,  and  the  delivery  of  a  deed  is 
threatened,  an  injunction  may  be  jiroperly 
granted.  (Joldstein  v.  Kelly,  51  Cal.  301. 
The  dissolution  or  continuance  of  a  pre- 
liminary injunction  is  a  matter  largely 
within  the  discretion  of  the  trial  court, 
auil  unless  that  discretion  has  been  abused, 
the  action  of  the  court  will  not  be  dis- 
turbed on  appeal.  Goiley  v.  Go<ley,  39  Cal. 
157;  McCreery  v.  Brown,  42  Cal.  457; 
Rogers  v.  Tennant,  45  Cal.  184;  Patterson 
V.  Board  of  Supervisors,  50  Cal.  341;  Coolot 
V.  Central  Pacific  R.  R.  Co.,  52  Cal.  65; 
Efford  V.  South  Pacific  Coast  R.  R.  Co., 
52  Cal.  277;  Parrott  v.  Floyd,  54  Cal.  534; 
White  V.  Nunan,  60  Cal.  406;  Grannis  v. 
Lorden,  103  Cal.  472;  37  Pac.  375;  Marks 
V.  Weinstock,  121  Cal.  53;  53  Pac.  362; 
Christopher  v.  Condogeorge,  128  Cal.  581; 
61  Pac.  174. 

Injunction  on  final  hearing.  The  rule, 
that  the  granting  or  refusing  of  injunc- 
tions involves  the  exercise  of  discretion, 
which  cannot  be  reviewed  on  a[)peal  ex- 
cept for  the  correction  of  abuses,  has  no 
application  to  a  judgment  granting  or  re- 
fusing an  injunction  after  a  final  hearing 
on  the  merits:  such  rule  applies  more  es- 
pecially, if  not  exclusively,  to  preliminary 
injunctions.  Richards  v.  Dower,  64  Cal. 
62;  28  Pac.  113.  The  complainant  may  be 
entitled  to  a  perpetual  injunction  on  the 
hearing,  in  many  cases,  where  it  would  be 
manifestly  imjiroper  to  grant  a  temporary 
injunction;  the  final  injunction  is,  in  many 
cases,  a  matter  of  strict  right,  and  granted 
as  a  necessary  consequence  of  the  decree 
made  in  the  case;  the  preliminary  injunc- 
tion, on  the  contrary,  before  the  answer, 
is  a  matter  resting  altogether  in  the  dis- 
cretion of  the  court,  and  ought  not  to  be 
granted,  unless  the  injury  is  pressing  and 
the  delay  dangerous.  Santa  Cruz  Fair 
Bldg.  Ass'n  V.  Grant,  104  Cal.  306;  37 
Pac.  1034.  Injunctions  to  restrain  injuries 
in  the  nature  of  waste  should  not  be  issued 
before  the  hearing  on  the  merits,  except  in 
cases  of  urgent  necessity,  or  when  the  sub- 
ject-matter of  the  complaint  is  free  from 
controversy,  or  irreparable  mischief  will  be 
produced  by  its  continuance;  but  where 
the  right  is  doubtful,  the  court  should 
direct  a  trial  at  law,  and  in  the  mean  time 
grant  a  temporary  injunction  to  restrain 
all  injurious  proceedings  if  there  is  danger 


§§  528,  529 


INJUNCTION. 


518 


of  irreparable  mischief.    Hicks  v.  Michael, 
15  Cal.  107. 

When  preliminary  injunction  will  be 
granted.  The  court  must  consider,  in 
granting  a  preliminary  injunction,  the 
amount  of  injury  which  may  thereby  be 
inflicted  on  strangers  to  the  suit,  and  to 
third  parties;  and  it  will  consider  whether 
a  greater  injury  will  result  to  the  defend- 
ant from  granting  the  injunction,  than  to 
the  plaintiff  in  refusing  it;  and  if  it  is 
satisfied  that  a  greater  injury  will  so  re- 
sult to  the  defendant,  and  that  the  rights 
of  the  plaintiff  will  be  fully  conserved  by 
granting  the  injunction,  after  a  hearing 
upon  the  merits,  a  wise  discretion  would 
dictate  a  refusal.  Santa  Cruz  Fair  Bldg. 
Ass'n  V.  Grant,  104  Cal.  306;  37  Pac.  1034. 
As  a  general  rule,  courts  of  equity  will  not 
interfere  by  preliminary  injunction  to 
change  the  possession  of  real  property, 
the  title  being  in  dispute;  nor  is  it  the 
proper  remedy  for  recovering  possession 
of  personal  property.  San  Antonio  Water 
Co.  V.  Bodenhamer,  133  Cal.  248;  65  Pac. 
471. 

Eight  to  preliminary  Injunction  whicli  would 
have  effect  of  transferring  possession  of  prop- 
erty from  defendant  to  plaintiff.  See  note  39 
L.  R.   A.    (N.   S.)    31. 

CODE  COMMISSIONERS' NOTE.     The   original 


section  contained  a  provision  prescribing  the  form 
of  the  verification.  This  was  useless,  for  the 
form  is  prescribed  in  the  part  of  this  code  relat- 
ing to  pleadings. 

1.  Time  when  the  order  will  issue.  If  sought 
upon  the  complaint,  the  usu.il  practice  is  to  pre- 
sent the  complaint  to  the  judge  in  advance  of  the 
tiling,  and  obtain  an  order,  which  order  takes 
effect  when  the  complaint  is  filed.  Hevman  v. 
Landers,  12  Cal.  107.  The  plaintiflf,  at  "the  time 
of  issuing  summons,  is  entitled  to  an  injunction 
upon  the  complaint  alone,  if  it  make  a  proper 
case,  etc.;  but  if  he  ask  for  an  injunction  there- 
after, he  must  do  it  upon  affidavits.  Falkinburg 
V.   Lucy.   3.5   Cal.    52:    95   Am.   Dee.   76. 

2.  Service.  A  party  against  whom  an  injunc- 
tion has  been  issued  is  not  bound  to  obey  it  un- 
til after  due  service  thereof  on  him,  giving  him 
verbal  notice  that  it  has  been  granted.  But  if  a 
party  is  in  court  at  the  time  an  injunction  order 
is  made,  and  thus  has  personal  knowledge  of  the 
order,  it  mav  be  that  he  would  be  bound  therebv. 
Elliott  V.  Osborn,  1  Cal.  396.  The  statute  points 
out  no  mode  for  service  ;  but,  in  conformity  with 
the  provisions  relative  to  the  summons,  delivery 
of  a  copy  is  essential  to  personal  service,  where 
that  is  required;  but  whether  it  would  be  neces- 
sary to  exhibit  the  original,  unless  snecially  re- 
quested by  the  party  served,  is  questioned.  Ed- 
mondson  v.  IMason,  16  Cal.  386.  A  writ  nlaced 
in  the  sheriff's  hands  on  Sunday  cannot  be  offi- 
cially received  on  that  day.  Such  writ  can  only 
be  considered  officially  in  his  hands  when  Sunday 
has  expired.  Whitney  v.  Butterfield.  13  Cal.  335; 
73  Am.  Dec.  584.  A  copy  of  the  papers  upon 
which  the  injunction  is  granted  must  be  served 
with  the  injunction,  otherwise  the  sprvice  will  be 
set  aside  as  irregular.  Penfield  v.  White.  8  How. 
Pr.  87;  Johnson  v.  Casey,  28  How.  Pr.  492;  3 
Rob.  710. 


answer  denies  all  the  equity,  if  any,  of  the  com- 
plaint, a  preliminary  injunction  should  not  be 
granted.  Crandall  v.  Woods,  6  Cal.  449.  When 
the  equities  of  a  complaint  are  fully  denied  by 
affidavits  on  the  part  of  defendant,  an  injunction, 
pendente  lite,  should  not  be  granted.  Gagliardo 
v.  Crippen,  22  Cal.  362. 


§  528.  Injunction  after  answer.  An  injunction  cannot  be  allowed  after 
the  defendant  has  answered,  unless  upon  notice,  or  upon  an  order  to  show 
cause ;  but  in  such  case  the  defendant  may  be  restrained  until  the  decision 
of  the  court  or  judge  granting  or  refusing  the  injunction. 

Legislation  §  528.      Enacted   March   11,   1873;  CODE    COMMISSIONERS'    NOTE.      When    the 

based  on  Practice  Act,  §  114  (New  York  Code, 
§  221),  which  had,  in  the  first  line,  the  words 
"shall  not"  instead  of  "cannot." 

No  ex  parte  injunction  after  answer. 
An  injunction  cannot  be  granted  after  the 
defendant  has  answered,  except  by  order 
to  show  cause.  Newmann  v.  Moretti,  146 
Cal.  31;  79  Pac.  512. 

§  529.  Security  upon  injunction.  On  granting  an  injunction,  the  court 
or  judge  must  require,  except  when  it  is  granted  on  the  application  of  the 
people  of  the  state,  a  county,  or  a  municipal  corporation,  or  a  wife  against 
her  husband,  a  written  undertaking  on  the  part  of  the  applicant,  with  suffi- 
cient sureties,  to  the  effect  that  he  will  pay  to  the  party  enjoined  such  dam- 
ages, not  exceeding  an  amount  to  be  specified,  as  such  party  may  sustain  by 
reason  of  the  injunction,  if  the  court  finally  decides  that  the  applicant  was 
not  entitled  thereto.  Within  five  days  after-  the  service  of  the  injunction, 
the  person  enjoined  may  except  to  the  sufficiency  of  the  sureties,  and  unless 
within  five  days  thereafter,  upon  notice  of  not  less  than  two  days  to  the  per- 
son enjoined,  such  sureties,  or  others  in  their  place,  justify  before  a  judge 
of  the  court  or  county  clerk  at  a  time  and  place  designated  in  such  notice, 
the  order  granting  the  injunction  must  be  dissolved. 


Undertaking    delivered    to    defendant    on    dis- 
missal.   Post,  §  581,   subd.   1. 
Sureties. 

1.  Qualifications      of.       Ante,    §    494;      post, 
J  1057. 

2.  Justification  of.    Ante,  §  495. 


Court  commissioners.  Power  to  take  bonds 
and  undertakings,  examine  sureties,  etc.  Ante, 
§  259,  subd.  3. 

Legislation  S  529.  1.  Enacted  March  11,  1873; 
based    on    Practice    Act,  §  115   (New    York    Code, 


519 


UNDERTAKING — CAUSE  OF  ACTION  ACCRUES  ON,  WHEN. 


§529 


§222),  which  read:  "On  granting:  an  injunition, 
the  court  or  judfje  shall  require,  except  where 
the  people  of  the  state  are  a  party  plaintiff,  a 
written  undertakinj;,  on  the  part  of  the  plaintiff, 
with  Kuflicient  sureties,  to  the  effect  that  the 
plaintiff  will  pay  to  the  party  enjoined  such  dam- 
ages, not  exceeding  an  amount  to  be  specified, 
as  such  party  may  sustain  by  reason  of  the  in- 
junction, if  the  court  finally  decide  that  the  plain- 
tiff was  not  entitled  thereto."  When  enacted  in 
1872,  the  word  "shall"  was  changed  to  "must," 
in   first    line. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  405, 
(1)  changing,  in  first  line,  the  word  "where"  to 
"when,"  and  (2)  adding  at  end  of  section,  after 
"entitled  tiiereto,"  two  sentences,  which  read: 
"Within  five  days  after  the  filing  of  the  under- 
talcing  required  the  defendant  may  except  to  the 
sufficiency  of  the  sureties:  if  he  fails  to  do  so 
he  is  deemed  to  have  waived  all  objections  to 
them.  When  excepted  to,  the  plaintiff's  sureties, 
upon  notice  to  the  defendant  of  not  less  than  two 
nor  more  than  five  days,  must  justify  before  a 
judge  or  county  clerk  in  the  same  manner  as 
upon  bail  on  arrest;  and  upon  failure  to  justify, 
or  if  others  in  their  place  fail  to  justify  at  the 
time  and  place  appointed,  the  order  granting  an 
injunction  shall  be  dissolved." 

3.  Amended  by  Code  Amdts.  1880,  p.  62.  (1) 
omitting  the  word  "are"  after  "people  of  the 
state,"  and  inserting  in  lieu  thereof  the  words 
"a  county,  or  municipal  corporation,  or  a  mar- 
ried woman  in  a  suit  against  her  husband  is" ; 
and  (2)  substituting  the  words  "service  of  the 
injunction"  for  "filing  of  the  undertaking  re- 
quired," in  sentence  beginning  "Within  five  days." 

4.  Amendment  by  Stats.  1901,  p.  137;  un- 
constitutional.   See  note  ante,  §  5. 

5.  Amended  by  Stats.  1907,  p.  342;  the  code 
commissioner  saying,  "The  amendments  to  this 
section  were  rendered  necessary  by  the  amend- 
ments made  to  subds.  2  and  3  of  §  526." 

Necessity  for  undertaking.  The  in.iunc- 
tion  will  be  dissolved,  where  there  is  a 
failure  to  give  the  undertaking  required 
by  this  section.  Neumann  v.  Moretti,  146 
Cal.  31;  79  Pac.  512.  Even  if  a  chancellor 
has  no  power  to  require  an  undertaking 
upon  the  issuance  of  a  temporary  restrain- 
ing order,  yet  an  ob.iection  on  this  ground 
cannot  be  sustained;  for,  having  taken 
jurisdiction  of  the  general  subject  of  liti- 
gation, he  has  power,  aside  from  the  stat- 
ute, to  order  such  undertaking,  or  to  make 
any  other  order  in  the  progress  of  the  case, 
for  the  furtherance  of  the  objects  of  the 
litigation  and  the  protection  of  its  subject- 
matter.  Prader  v.  Purkett,  13  Cal.  588. 
A  writ  of  injunction  is  invalid,  where  it 
was  issued  and  served  prior  to  the  time  the 
bond  was  given.  Carter  v.  Mulrein,  82  Cal. 
167;  16  Am.  St.  Eep.  98;  22  Pac.  10S6; 
Alaska  Improvement  Co.  v.  Hirsch,  119  Cal. 
249;  51  Pac.  340.  During  a  temporary  re- 
straining order,  the  better  practice,  as  it 
is  certainly  the  general  i)ractice,  is  to  re- 
quire an  undertaking;  but  in  all  cases, 
where  a  preliminary  injunction  is  granted 
in  the  first  instance,  or  after  an  order  to 
show  cause,  an  undertaking  must  be  re- 
quired. Neumann  v.  Moretti,  146  Cal.  31; 
79  Pac.  512.  An  order  for  an  injunction 
is  not  operative  until  the  statutory  under- 
taking is  given.  Elliott  v.  Osborne,  1  Cal. 
396.  The  provision  of  this  section,  that 
the  court,  on  granting  an  injunction,  shall 
require  a  written  undertaking  on  the  part 
of  the  plaintiff,  is  applicable,  whether  the 
injunction    is    granted    upon    an    ex    parte 


application,  or  upon  an  order  to  show 
cause.  McCracken  v.  Ifarris,  54  Cal.  81. 
Where  a  temporary  restraining  order  is 
ma<le  upon  an  application  for  a  temijorary 
injunction,  and  the  restraining  order  is 
limited  to  the  jiendoncy  of  the  motion  for 
a  temporary  injunction,  upon  condition 
that  a  bond  be  filed  to  pay  all  flamages 
resulting  from  the  restraining  order,  a 
bond  given  in  consideration  of  a  writ  of 
injunction,  pending  the  hearing  of  the 
action,  is  not  such  a  bond  as  was  contem- 
plated by  the  restraining  order,  and  im- 
poses no  liability,  if  the  action  is  dismissed 
for  want  of  jurisdiction,  without  the  pre- 
liminary injunction  prayeri  for  in  the  bill. 
Byam  v.  Ca'shman,  78  Cal.  525;  21  Pac.  113. 

Court  may  order  additional  undertaking. 
Where  a  preliminary  iiijun<-tion  was  issued 
on  an  insuflScient  undertaking,  the  court 
has  power,  upon  a  motion  to  dissolve,  to 
order  that  the  injunction  be  dissolved  un- 
less a  proper  undertaking  is  given;  and 
where,  thereupon,  an  undertaking  is  given, 
the  phrase  therein,  "in  case  said  injunc- 
tion shall  issue,"  does  not,  of  itself,  con- 
clusively show  that  the  undertaking  was 
not  upon  the  injunction  continued  in  force: 
the  circumstances  may  be  such  as  to  show 
that  it  was  so  given.  Lambert  v.  Haskell, 
80  Cal.  611;  22  Pac.  327. 

Justification  of  sureties.  Notice  of  jus- 
tification must  be  given  the  defendant,  not 
less  than  two  nor  more  than  five  days  after 
the  filing  and  serving  of  the  notice  of  ex- 
ception to  the  sufficiency  of  the  sureties; 
and  the  plaintiff's  sureties  must  justify 
within  five  days  after  the  notice  of  ex- 
ception is  given,  or  the  injunction  will, 
upon  notice,  be  dissolved:  this  construc- 
tion must  be  given  this  section,  in  view 
of  the  damages  that  may  result  from 
the  improper  issuance  of  an  injunction. 
McSherry  v.  Pennsylvania  etc.  Mining  Co., 
97  Cal.  637;  32  Pac.  711. 

When  cause  of  action  accrues  on  under- 
taking. A  cause  of  action  upon  an  under- 
taking for  an  injunction  does  not  accrue 
until  the  final  determination  of  the  action 
in  which  the  injunction  was  obtained. 
Dougherty  v.  Dore,  63  Cal.  170.  An  action 
upon  an  undertaking  for  an  injunction  is 
prematurely  brought,  where  the  action  has 
not  been  finally  disposed  of,  although  the 
injunction  has  been  permanently  dissolved; 
the  condition  of  the  obligation  being  that 
the  sureties  should  be  liable  if  the  court 
should  decide  that  the  plaintiff  was  not 
entitled  to  the  injunction.  Clark  v.  Clay- 
ton, 61  Cal.  634.  An  action  on  an  under- 
taking, given  as  securit}'  for  a  restraining 
order,  is  prematurely  brought,  though  the 
order  was  vacated  and  the  a])idication  for 
the  injunction  denied,  where  the  plaintiff 
appealed  from  the  order  and  executed  an 
undertaking  on  appeal,  and  the  appeal  is 
still  pending.  Adams  v.  .-Vndross,  77  Cal. 
483;  20  Pac.  26.  An  undertaking,  the  con- 
dition of  which  is  in  pursuance  of  the  pro- 


§529 


INJUNCTION. 


520 


visions  of  this  section,  is  broken  by  a 
judgment  of  the  court  totally  dissolving  the 
injunction;  and  the  defendant  is  entitled 
to  maintain  an  action  on  the  bond  after 
such  dissolution.  Rice  v.  Cook,  92  Cal.  144; 
28  Pac.  219.  An  action  may  be  maintained 
against  the  sureties  on  a  bond  given  to 
secure  a  temporary  injunction,  after  the 
temporary  injunction  has  been  dissolved 
at  the  final  hearing  of  the  injunction  suit. 
Lippitt  v.  Smallman,  20  Cal.  App.  595;  129 
Pac.  956.  Where  the  order  dissolving  an 
injunction  was  granted,  and  a  demurrer 
to  the  complaint  was  sustained,  on  the 
ground  that  the  complaint  did  not  state 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion, and  the  complaint  was  not  amended 
within  the  proper  time  after  notice,  and 
nothing  further  was  done  in  the  case,  an 
action  on  the  undertaking  is  not  prema- 
turelv  brought.  Bennett  v.  Pardini,  63 
Cal.  154. 

Who  may  sue.  The  plaintiff  may  sue 
alone  on  an  injunction  bond  given  to  him  and 
others,  as  obligees,  where  the  property  on 
which  the  injunction  operated  was  his  sole 
property,  and  the  injury  his  alone,  and  the 
complaint  averred  these  facts.  Browner  v. 
Davis,  15  Cal.  9. 

Demand  on  principal  unnecessary.  The 
demand  for  payment  of  unliquidated  dam- 
ages, not  upon  the  obligors,  but  on  the 
principals,  for  whom,  as  sureties,  such  ob- 
ligors stipulated,  is  not  necessary  before 
bringing  action  on  the  undertaking  given 
for  the  injunction.  Browner  v.  Davis,  15 
Cal.  9. 

Several  liability,  where  there  are  several 
defendants.  A  several  liability  is  created 
by  an  undertaking  on  an  injunction, 
though  given  to  all  the  obligees  by  name, 
and  using  no  words  directly  expressing  a 
several  obligation;  the  design  being  to  se- 
cure each  and  all  of  the  obligees  from 
damage  and  injuries;  the  practice  of  re- 
quiring only  one  bond,  though  several 
defendants  are  enjoined,  is  the  most  con- 
venient method  for  both  plaintiff  and  de- 
fendant; but  it  would  operate  harshly,  and 
in  most  cases  would  amount  to  no  security 
at  all,  if  recoveries  could  be~  had  only  for 
a  joint  injury,  and  to  the  extent  of  the 
joint  damage:  the  mode  of  construction  in 
such  cases  is,  not  to  look  merely  at  the 
language  of  the  instrument,  but  to  the 
statute  under  which  the  instrument  is 
given.     Summers  v.  Parish,  10  Cal.  347. 

Pleading  in  action  on  undertaking.  In 
an  action  uj)on  an  undertaking,  the  com- 
plaint must  allege  the  non-payment  of  the 
money  claimed  under  the  contract,  in  or- 
der to  state  a  cause  of  action.  Curtiss  v. 
Bachman,  84  Cal.  216;  24  Pac.  379.  Where 
the  condition  of  the  undertaking  was,  that 
the  plaintiff  would  pay  all  damages  and 
costs  that  Khould  be  awarded  against  him 
by  virtue  of  the  issuing  of  the  injunction, 
a  comi>laint,  in  an  action  against  the  sure- 
ties, which  did  not  allege  that  any  damages 


had  been  so  awarded,  is  fatally  defective. 
Tarpey  v.  Shillenberger,  10  Cal.  390. 

Malice  and  want  of  probable  cause  not 
essential  to  this  action.  An  action  on  the 
case  will  not  lie  for  improperly  suing  out 
an  injunction,  unless  it  is  charged  in  the 
declaration  as  an  abuse  of  the  process  of 
the  court,  through  malice,  and  without 
probable  cause;  and  if  the  action  com- 
plained of  is  destitute  of  these  ingre- 
dients, then  only  remedy  of  the  injured 
party  is  an  action  upon  the  injunction 
bond,  which  is  specially  provided  by 
statute  as  protection  against  injury,  even 
without  malice.  Robinson  v.  Kellum,  6 
Cal.  399. 

Defenses.  In  an  action  on  an  under- 
taking, the  defense,  that  the  business  en- 
joined was  a  public  nuisance,  cannot  be 
successfully  interposed:  a  legitimate  occu- 
pation is  sometimes  a  public  nuisance, 
yet  a  party  is  entitled  to  the  fruits  of  his 
labor  until  an  abatement  takes  place,  in 
some  proper  form.  Cunningham  v.  Breed, 
4  Cal.  384. 

Effect  of  voluntary  dismissal.  The  vol- 
untary dismissal  of  the  action,  by  the 
plaintiff,  is  an  admission  that  he  is  unable 
to  maintain  the  action,  and  therefore  that 
he  is  not  entitled  to  the  injunction;  and 
the  defendants  are  entitled  to  recover 
from  the  sureties  whatever  damages  they 
sustain  by  reason  of  the  injunction  (Frahm 
V.  Walton,  130  Cal.  396;  62  Pac.  618);  and 
such  dismissal  has  the  same  effect  as  a 
decision  of  the  court  that  the  plaintiff  is 
not  entitled  to  the  injunction,  and  makes 
the  sureties  on  the  undertaking  liable. 
Asevado  v.  Orr,  100  Cal.  293;  32  Pac.  777; 
Frahm  v.  Walton,  130  Cal.  396;  62  Pac. 
618.  Where  an  injunction  is  dissolved  by 
the  court,  the  judgment  is  conclusive,  and 
in  a  suit  upon  the  undertaking  the  only 
question  is  the  amount  of  damages  sus- 
tained; but  where  the  injunction  is  dis- 
solved through  a  dismissal  of  the  action 
by  the  party  who  obtained  it,  there  is  no 
admission  that  the  injunction  was  im- 
properly sued  out:  it  evinces  but  an  un- 
willingness further  to  prosecute  the  writ; 
and  when  in  such  a  case,  a  suit  is  brought 
on  the  undertaking,  it  is  necessary,  in 
order  to  maintain  the  action,  to  show  that 
there  was  no  proper  cause  for  the  injunc- 
tion. Gelston  v.  Whitesides,  3  Cal.  309; 
Asevado  v.  Orr,  100  Cal.  293;  34  Pac.  777; 
and  see  Frahm  v.  Walton,  130  Cal.  396, 
62  Pac.  618,  overruling  Dowliug  v.  Polack, 
18  Cal.  625,  the  opinion  in  the  latter  case 
being  to  the  effect,  that,  where  the  plain- 
tiff fails  to  prosecute  his  suit,  the  issues 
are  not  actually  examined  and  passed 
upon;  and  by  his  failure  to  appear  and 
prosecute,  he  virtually  confesses  that  the 
result  of  a  trial  of  the  issues  would  be 
against  him.  Under  such  circumstances, 
a  dismissal  must  be  understood  as  pro- 
ceeding ujion  this  idea,  and  as  a  deter- 
mination   of    everything    involved    in    the 


521 


DAMAGES  RECOVERABLE — RECOVERY  OF  COUNSEL  FEES. 


§529 


case.  The  dismissal,  in  efifect,  is  a  final 
judjjment  in  favor  of  the  defendant,  and, 
although  it  may  not  preclude  the  plaintiff 
from  bringing  a  new  suit,  yet  the  rights  of 
the  parties  are  affected  by  it  in  the  same 
manner  as  if  there  had  been  an  adjudica- 
tion upon  the  merits:  it  terminates  the 
proceedings,  and,  by  its  legal  operation, 
and  effect,  the  injunction  is  set  aside  and 
discharged. 

Damages  recoverable.  Where  an  injunc- 
tion is  wrongfully  issued  as  to  any  part 
of  the  plaintiff's  demand,  and  it  is  dis- 
solved to  that  extent,  the  <lefendant  is 
entitled  to  such  damages,  within  the  limit 
of  the  penalty  of  the  bond,  as  he  may  sus- 
tain by  reason  of  the  issuing  of  the  in- 
junction. Rice  V.  Cook,  92  Cal.  144;  28 
Pac.  21Jt.  Where  a  party  is  injured  in 
consequence  of  the  injunction,  he  is  en- 
titled to  whatever  damages  he  sustains; 
thus,  destruction  of  the  property  involved, 
or  its  deterioration,  and  all  matters  where- 
by the  party  suffers  loss  or  is  injured  may 
be  taken  into  consideration  in  assessing 
damages.  Dougherty  v.  Dore,  63  Cal.  170. 
The  rule  at  common  law  was,  that,  on  a 
bond  to  indemnify  against  the  damage  the 
obligee  might  sustain,  he  could  recover 
only  upon  evidence  that  he  had  sustained 
actual  damage;  that  compensation  would 
be  awarded  only  for  actual  loss:  evidence 
showing  that  he  was  subject  to  liability, 
without  showing  pavment,  was  not  enough. 
Willson  V.  McEvoy,  25  Cal.  169.  Where 
a  contractor  was  prevented,  by  the  injunc- 
tion, from  prosecuting  work,  and  materials 
were  left  unprotected,  and  were  washed 
away  without  his  fault,  damages  are  prop- 
erly assessed  for  the  loss  thereof,  in  an 
action  on  the  undertaking.  Dougherty  v. 
Dore,  63  Cal.  170.  Nominal  damages  are 
presumed  to  follow,  as  a  conclusion  of 
law,  from  {)roof  of  breach  of  contract. 
Browner  v.  Davis,  15  Cal.  9.  The  sureties 
on  an  undertaking  given  for  the  issuance 
of  a  temporary  restraining  order,  in  con- 
nection with  an  order  to  show  cause,  are 
liable  only  for  the  damages  arising  be- 
tween the  time  of  issuance  of  the  order 
and  the  date  of  the  hearing  thereof. 
Prader  v.  Grim,  13  Cal.  585.  As  a  general 
rule,  no  undertaking  can  be  required  upon 
a  final  decree;  and  the  functions  of  a  pre- 
liminary injunction  cease  when  the  final 
decree  is  made;  consequently,  damages 
subsequently  accruing  cannot  be  recovered 
from  the  sureties,  although  the  final  de- 
cree is  reversed  on  appeal.  Lambert  v. 
Haskell,  80  Cal.  611;  22  Pac.  327.  The 
sureties  on  an  injunction  bond  are  entitled 
to  stand  upon  the  precise  terms  of  their 
contract;  and  where  a  bond  is  given  in 
pursuance  of  an  order  that  an  injunction 
issue  upon  the  filing  of  the  bond,  the  sure- 
ties are  not  liable  for  damages  arising  to 
the  defendant  from  his  obedience  to  a 
writ  of  injunction  issued  several  days 
prior  to  the  date  of  the  bond,  no  writ  hav- 


ing been  issued  after  the  filing  of  the 
undertaking.  Carter  v.  Mulrein,  82  Cal. 
167;  16  Am.  St.  Rep.  98;  22  Pac.  1086;  and 
see  People  v.  Buster,  11  Cal.  215;  McDon- 
ald v.  Fett,  49  Cal.  354;  Pierce  v.  Whiting, 
63  Cal.  538;  .Alaska  Improvement  Co.  v. 
Hirsch,  119  Cal.  219;  51  Par.  340. 

Recovery  of  counsel  fees.  The  fees  of 
an  attorney  employed  to  resist  an  injunc- 
tion under  the  Practice  Act  could  not  be  re- 
covered as  damages,  in  an  action  on  the 
undertaking,  unless  they  had  been  paid:  the 
fact  that  the  plaintiff  was  subject  to  a  lia- 
bility to  his  attorney  was  insufficient,  with- 
out showing  actual  payment  to  him.  Willson 
V.  McKvoy,  25  Cal.  169;  Prader  v.  Grimm, 
28  Cal.  11.  The  amount  of  counsel  fees  re- 
coverable is  limited  to  fees  paid  counsel  for 
procuring  the  dissolution  of  the  injunction, 
and  does  not  extend  to  fees  paid  for  defend- 
ing the  entire  case  (Bustamente  v.  Stewart, 
55  Cal.  115;  Porter  v.  Hopkins,  63  Cal.  53); 
but,  under  the  code,  whether  counsel  fees 
are  paid  in  advance  of  the  services,  or  are 
not  paid  until  after  the  action  is  dis- 
missed, is  immaterial.  Frahm  v.  Walton, 
130  Cal.  396;  62  Pac.  618.  Counsel  fees 
incurred  by  the  defendant  by  reason  of  a 
preliminary  injunction  arc  a  part  of  the 
damages  for  which  he  has  a  right  to  in- 
demnity, and  are  within  the  undertaking 
required  to  be  given  as  a  condition  for 
procuring  the  injunction;  but  only  such 
counsel  fees  as  are  incurred  after  the  in- 
junction is  issued,  and  prior  to  the  deter- 
mination of  the  action,  can  be  considered 
as  within  the  rule.  Curtiss  v.  Bachman, 
110  Cal.  433;  52  Am.  St.  Rep.  Ill;  42  Pac. 
910.  Counsel  fees  incurred  by  the  defend- 
ant in  securing  the  dissolution  of  an  in- 
junction being  recognized  as  a  portion  of 
the  damages  covered  by  the  undertaking, 
the  plaintiff  cannot,  by  a  voluntary  dis- 
missal of  his  action,  deprive  the  defendant 
of  his  right  to  recover  for  them,  oni'C 
they  are  incurred,  any  more  than,  in  that 
manner,  he  can  deprive  the  defendant  of 
his  right  to  recover  whatever  other  dam- 
ages he  may  sustain  by  reason  of  the  in- 
junction. Frahm  v.  Walton,  130  Cal.  396; 
62  Pac.  618.  Where  the  defendant  seeks 
to  prevent  the  issuance  of  a  permanent 
injunction,  instead  of  attempting  to  re- 
move the  temporary  injunction,  or  directs 
his  efforts  to  defeating  the  action  of  the 
plaintiff,  counsel  fees  are  an  incident  of 
the  suit,  and  are  not  recoverable  as  dam- 
ages. Curtiss  V.  Bachman,  110  Cal.  433; 
52  Am.  St.  Rep.  Ill;  42  Pac.  910.  Counsel 
fees  are  not  allowed  as  damages  against 
the  sureties  on  an  undertaking  given  for 
a  preliminary  injunction,  although  the 
court  finally  decides  that  the  plaintiff  is 
not  entitled  to  the  injunction;  no  effort 
being  made  to  dissolve  the  preliminary  in- 
junction, counsel  is  simply  employed  to 
try  the  case,  and  is  paid  for  that  service, 
and  no  other,  and  the  cost  is  no  greater 
than  it  would  be,  were  no  preliminary  in- 


§530 


INJUNCTION. 


522 


junction  issued.  San  Diego  Water  Co.  v. 
Pacific  Coast  S.  S.  Co.,  101  Cal.  216;  35 
Pae.  651.  Counsel  fees  incurred  in  resist- 
ing a  motion  for  a  preliminary  injunction 
are  not  within  the  terms  of  the  under- 
taking: they  are  not  expenses  made  neces- 
sary "by  reason  of  the  injunction,"  but 
are  expenses  incurred  in  the  action,  as 
much  as  are  fees  incurred  in  attempting 
to  prevent  the  issuance  of  a  permanent 
injunction.  Curtiss  v.  Bachman,  110  Cal. 
433;  52  Am.  St.  Rep.  Ill;  42  Pac.  910; 
and  see  Mitchell  v.  Hawley,  79  Cal.  301; 
21  Pac.  833.  Counsel  fees,  upon  appeal 
from  an  order  refusing  to  dissolve  an  in- 
junction, taken  before  the  final  decree  is 
made,  are  recoverable,  where  the  evidence 
segregates  the  amount  of  such  fees  from 
those  paid  generally  in  the  cause:  the 
counsel  fees  for  which  sureties  may  be 
held  are  not  those  expended  solely  or 
principally  in  procuring  a  dissolution  of 
the  injunction,  and  it  is  not  sufficient  to 
show  the  value  of  service  rendered  in  the 
case  generally.  Lambert  v.  Haskell,  80 
Cal.  611;  22  Pac.  327.  An  unsuccessful 
motion  to  dissolve  an  injunction  does  not 
authorize  the  recovery  of  counsel  fees  in 
making  the  motion,  unless  the  court  sus- 
pends its  decision  on  the  motion  until  the 
hearing  of  the  case.  Curtiss  v.  Bachman, 
110  Cal.  433;  52  Am.  St.  Eep.  Ill;  42  Pac. 
910. 

Right  to  enforce  injunction  bond  upon  dissolu- 
tion of  temporary  injunction.  See  note  15  Ann. 
Cas.    721. 

Recovery  on  injunction  bond  for  damages  sus- 
tained after  injunction  made  permanent.  See 
notes  16  Ann.  Cas.  1123;  Ann.  Cas.  1913C,   1277. 

Violation  of  injunction  as  defense  to  action  on 
bond.     Stf   note    19   Ann.    Cas.    671. 

Dismissal  of  injunction  suit  as  breach  of  in- 
junction bond.    See  note  6  Ann.  Cas.  401. 

Liability  of  injunction  bond  for  acts  of  third 
persons.    See  note  34  L.  R.  A.   (N.  S.)   951. 

CODE  COMMISSIONERS'  NOTE.     1.   Form  of 

security.  A  substantial  compliance  with  the  re- 
quirements of  the  code,  in  this  respect,  is  suffi- 
cient.   Guilford  v.  Cornell,   4  Abb.  Pr.  220. 

2.  Defects  in  undertaking.  A  defect  in  the 
undertaking  will  not  usually  be  a  ground  for  dis- 
solution of  the  injunction.  Williams  v.  Hall,  1 
Bland.  194. 

3.  Scope  of  the  undertaking.  The  undertakinc; 
is  for  the  benefit  of  all  the  defendants;  and  al- 
though   one    of    them    is    not    served,    yet,    if    he 


obeys  the  order,  he  will  be  entitled  to  damages. 
Cumberland  Coul  etc.  Co.  v.  Hoffman  Steam  Coal 
Co.,  39  Barb.  16;   15  Abb.  Pr.  78. 

4.  Action  on  the  undertaking.  A  judgment  of 
dismissal  in  an  action  in  which  a  temporary  in- 
junction had  been  granted,  amounts  to  a  deter- 
mination by  the  court  that  the  injunction  was 
improperly  granted;  and,  after  judgment,  suit 
lies  upon  the  undertaking.  Dnwling  v.  Polack,  18 
Cal.  625.  The  grounds  of  the  injunction  cannni 
be  inquired  into  in  an  action  upon  the  undertak- 
ing. Id.  But  see  Gelston  v.  Whitesides,  3  Cal. 
309.  An  undertaking,  though  given  to  all  the 
obligees  by  name,  and  using  no  words  e.xpressing 
a  several  "obligation,  creates  a  several  liability, 
the  design  of  it  being  to '  secure  each  of  all  of 
the  obligees  from  damages  or  injury.  Summers 
V.  Farish,  10  Cal.  347.  The  usual  undertaking 
being  given,  an  order  was  made  to  show  cause 
(August  29th)  why  an  injunction  should  not  be 
granted.  A  restraining  order,  in  the  "mean 
time,"  was  issued.  The  case  was  continued  un- 
til October  10th,  when,  on  hearing,  the  order  was 
dissolved,  injunction  denied,  and  suit  dismissed. 
Action  on  the  undertaking.  It  was  held  that  the 
restraining  order  embraces  the  time  between  its 
issuance  and  the  hearing,  and  that  damages  may 
be  had  beyond  August  29th.  Prader  v.  Grim,  13 
Cal.  585.  No  recovery  can  be  had  on  a  bond 
purporting  to  be  the  joint  bond  of  the  principals 
and  sureties,  but  signed  by  the  sureties  only. 
But  it  is  otherwise  as  to  undertakings,  under  our 
svstem.  They  are  original  and  independent  con- 
tracts on  the  "part  of  sureties,  and  do  not  require 
the  signature  of  the  principal.  Sacramento  v. 
Dunlap,   14  Cal.  421. 

5.  Damages.  See  subd.  4  of  this  note.  In  an 
action  for  damages  on  an  undertaking,  the  de- 
fendants cannot  object  that  they  ought  not  to 
pay  the  damages  which  they  contracted  to  pay, 
because  the  business  which  they  enjoined,  and 
for  the  stoppage  of  which  damages  are  claimed, 
was  a  public  nuisance.  Cunningham  v.  Breed,  4 
Cal.  384.  If  an  officer  is  enjoined  from  paying 
over  money  in  his  hands,  legal  interest  can  only 
be  recovered  as  damages  for  its  detention  in  an 
action  on  the  undertaking.  Lally  v.  Wise,  28  Cal. 
539. 

6.  Counsel  fees  as  part  of  the  damages.  In  an 
action  upon  an  undertaking,  it  was  held  that  the 
amount  paid  to  counsel  as  a  fee  to  procure  the 
dissolution  of  the  injunction  was  properly  al- 
lowed as  a  part  of  the  damages;  and  that,  gen- 
erally, the  recovery  of  counsel  fees  as  a  part  of 
the  damages  is  not  allowed  as  where  the  loss  is 
consequential,  but  where  the  loss  is  direct,  as  in 
the  case  of  an  improper  commencement  and  prose- 
cution of  a  suit,  or  other  process  in  a  suit,  it 
should  be  allowed.  Ah  Thaie  v.  Quan  Wan,  3 
Cal.  216.  In  an  action  on  an  undertaking,  the 
fees  of  an  attorney  employed  to  resist  injunction 
cannot  be  recovered  as  damages,  unless  they  have 
been  paid.  The  fact  that  the  plaintiff  is  liable 
to  his  attorney,  without  showing  actual  payment 
to  him.  is  sufficient.  Willson  v.  McEvoy.  25  Cal. 
170;  Prader  v.  Grimm,  28  Cal.  11;  Fowler  v. 
Frisbie,  37  Cal.  34. 

7.  Generally.  See  Fowler  v.  Frisbie,  37  Cal. 
84. 


§  530.  When  injunction  for  use  of  water  may  be  refused  upon  defendant 
giving  bond.  In  all  actions  which  may  be  hereafter  brought  when  an  in- 
junction or  restraining  order  may  be  applied  for  to  prevent  the  diversion, 
diminution  or  increase  of  the  flow  of  water  in  its  natural  channels,  to  the 
ordinary  flow  of  which  the  plaintiff  claims  to  be  entitled,  the  court  shall 
first  require  due  notice  of  the  application  to  be  served  upon  the  defendant, 
unless  it  shall  appear  from  the  verified  complaint  or  aflidavits  upon  which 
the  application  therefor  is  made,  that,  within  ten  days  prior  to  the  time  of 
such  application,  the  plaintiff  has  been  in  the  peaceable  possession  of  the 
flow  of  such  water,  and  that,  within  such  time,  said  plaintiff  has  been  de- 
prived of  the  flow  thereof  by  the  wrongful  diversion  of  such  flow  by  the 
defendant,  or  that  the  plaintiff,  at  the  time  of  such  application,  is,  and  for 


523 


RESTRAINING  ORDER — ANSWER  DENYING  EQUITIES. 


§530 


ten  days  prior  thereto,  has  been,  in  possession  of  the  flow  of  said  water,  and 
that  the  defendant  threatens  to  divert  the  flow  of  siicli  water;  and  if  siieh 
notice  of  such  application  be  p:iven  and  upon  the  hearincj  tliereof,  it  be  made 
to  appear  to  the  court  that  plaintiff  is  entitled  to  the  injunction,  but  that 
the  issuance  thereof  pendinp:  the  litigation  will  entail  great  damage  upon 
defendant,  and  that  plaintiff  will  not  be  greatly  damaged  by^the  acts  com- 
plained of  pending  the  litigation,  and  can  be  fully  compensated  for  such 
damage  as  he  may  suffer,  the  court  may  refuse  the  injunction  upon  the  de- 
fendant giving  a  bond  such  as  is  provided  for  in  section  five  hundred  and 
thirty-two;  and  upon  the  trial  the  same  proceedings  shall  be  had,  and  with 
the  same  effect  as  in  said  section  provided. 


Legislation  B  530.  1.  Enacted  March  11,  1873; 
beinK  a  ri'-enMctnient  of  Practice  Act,  §  IIG  (New 
York  Code,  §  223),  and  then  read:  "§530.  If 
the  court  or  judge  deem  it  proper  that  the  de- 
fendant, or  any  of  several  defendants,  should  be 
heard  before  grantinp;  the  injunction,  an  order 
may  be  made  requiring  cause  to  be  shown,  at  a 
specified  time  and  jilace,  why  the  injunction 
should  not  be  granted ;  and  the  defendant  may, 
in  the  mean  time,   be  restrained." 

2.  Amended  by  Stats.  1887,  p.  240,  adding 
at  the  end  of  the  section,  "In  all  actions  pending 
or  which  may  be  hereafter  brough*,  when  an  in- 
junction or  restraining  order  has  tieen  or  may  be 
granted,  or  applied  for,  to  prevent  the  diversion 
pending  the  litigation,  of  water  used  or  to  be 
used  for  irrigation  or  domestic  purposes  only,  if 
it  be  made  to  appear  to  the  court  that  the  plain- 
tiff, is  entitled  to  the  injunction,  but  that  the  is- 
suance thereof  pending  the  litigation  will  entail 
great  damage  upon  the  defendant,  and  that  plain- 
tiff can  be  fully  compensated  for  such  damages 
as  he  may  suffer,  the  court  may  refuse  the  in- 
junction iipon  the  defendant  giving  a  bond,  such 
as  is  provided  for  in  section  five  hundred  and 
thirty-two;  and  upon  the  trial  the  same  proceed- 
ings shall  be  had,  and  with  the  same  effect,  as  in 
said  section  provided." 

3.  Amendment  by  Stats.  1901,  p.  137;  un- 
constitutional.   See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  342,  to  read: 
"§  530.  If  th.e  court  or  judge  deem  it  proper 
that  the  person,  sought  to  be  enjoined,  should 
be  heard  before  granting  the  injunction,  an  order 
may  be  made  requiring  cause  to  be  shown,  at 
a  specified  time  and  place,  why  the  injunction 
should  not  be  granted,  and  the  defendant  may, 
in  the  mean  time,  be  restrained.  In  all  actions 
which  may  be  hereafter  brought  when  an  injunc- 
tion or  restraining  order  may  be  applied  for  to 
prevent  the  diversion,  diminution  or  increase  of 
the  flow  of  water  in  its  natural  channels,  to 
the  ordinary  flow  to  which  the  plaintiff  claims 
to  be  entitled,  the  court  shall  first  require  due 
notice  of  the  application  to  be  served  upon  the 
defendant,  and  upon  the  hearing  thereof,  if  it 
be  made  to  appear  to  the  court  that  plaintiff  is 
entitled  to  the  injunction,  but  that  the  issuance 
thereof  pending  the  litigation  will  entail  great 
damage  upon  defendant,  and  that  plaintiff  will 
not  be  greatly  damaged  by  the  acts  complained 
of  pending  the  litigation  and  can  be  fully  com- 
pensated for  such  damages  as  he  may  suffer,  the 
court  may  refuse  the  injunction  upon  the  defend- 
ant giving  a  bond  such  as  is  provided  for  in  sec- 
tion five  hundred  and  thirty-two;  and  upon  the 
trial  the  same  proceedings  shall  be  had,  and  with 
the  same  effect  as  in  said  section  provided." 
The  code  commissioner  said:  "The  section  is 
amended  to  conform  to  the  amendments  made 
to  subds.  2  and  3  of  §  526.  Also,  the  words  'di- 
version, diminution  or  increase  of  the  flow  of 
water  in  its  natural  channels,  to  the  ordinary 
flow  to  which  the  plaintiff  claims  to  be  entitled, 
the  court  shall  first  recjuire  due  notice  of  the 
application  to  be  served  upon  the  defendant,  and 
upon  the  hearing  thereof,'  have  been  substituted 
for  the  words  "diversion  [,  ]  pending  the  litigation, 
of  water  used  or  to  be  used  for  irrigation  or 
domestic   purposis   only.'      The   latter  amendment 


was  offered  and  adopted  upon  the  floor  of  the 
assembly  on  March  4,  1907,  and  was  a  member's 
amendment." 

5.    .Vmended  by  Stats.  1911,  p.   1421. 

Nature  of  restraining  order.  A  tem- 
porary restraining  order  is  an  order  which 
applies  to  the  time  intervening  between 
the  application  for  the  injunction  and  the 
day  fixed  in  the  order  to  show  cause. 
Neumann  v.  Aloretti,  146  Cal.  31;  79  Pac. 
512;  and  see  Hicks  v.  Michael,  15  Cal. 
107;  Cohen  v.  Gray,  70  Cal.  85;  11  Pac. 
508.  It  is  a  restraint  of  the  same  nature 
as  an  injunction,  but  the  statute  not  only 
does  not  designate  it  as  an  injunction, 
but  discriminates  between  it  anil  an  in- 
junction: it  is  a  restraint,  pending  the 
consideration  of  the  court  as  to  whether 
the  party  is  entitled  to  a  preliminary  in- 
junction (San  Diego  Water  Co.  v.  Pacific 
Coast  S.  S.  Co.,  101  Cal.  216;  35  Pac.  651; 
Neumann  v.  Moretti,  146  Cal.  31;  79  Pac. 
512);  and  it  loses  its  force  upon  the  grant- 
ing of  the  injunction  pendente  lite.  Cohen 
V.  Gray,  70  Cal.  85;  11  Pac.  508.  The 
restraining  order  is  an  injunction,  when  it 
requires  the  defendant  to  refrain  from 
doing  particular  acts.  Neumann  v.  Moretti, 
146  Cal.  31;  79  Pac.  512. 

Effect  of  answer  denying  equities. 
Where  the  defendant  filed  his  answer, 
controverting  the  allegations  of  the  com- 
plaint, and  set  up  new  matter  in  defense 
of  the  action,  on  an  order  made  by  the 
court  requiring  him  to  show  cause  why  an 
injunction  should  not  issue,  the  plain- 
tiff has  a  right  to  read  affidavits  in  sup- 
port of  his  complaint,  as  the  object  of 
such  order  could  only  have  been  to  enable 
the  parties  to  present  the  case  on  the 
merits;  and  upon  such  order  the  awarding 
or  refusing  of  an  injunction  must  be  re- 
garded as  adjudicated  by  the  decision  at 
the  hearing.  The  former  rule  was,  that 
aflidavits  could  not  be  road  in  any  case  for 
the  purpose  of  contradicting  the  answer; 
but  the  policy  of  preventing  irrejiarable 
mischief  has  introduced  an  exception  to 
this  rule,  in  cases  of  waste,  or  of  mischief 
analogous  te  waste,  and  affidavits  may 
now  be  read  against  the  answer  in  such 
cases,  in  respect  to  all  matters  of  con- 
troversy, including  questions  of  title. 
Hicks  v.  Michael,  15  Cal.  107.     Whore  all 


§531 


INJUNCTION. 


524 


the  equities  of  the  complaint  are  denied  by 
the  affidavits  filed  by  the  defendant,  there 
is  no  abuse  of  discretion  in  denying  the 
plaintiff's  motion  for  a  temporary  injunc- 
tion. Kohler  v.  Los  Angeles,  39  Cal.  510. 
The  determination  of  the  court,  in  the 
exercise  of  its  discretion,  to  continue  an 
injunction  in  force  until  the  hearing  of 
the  cause,  in  so  far  as  it  rests  upon  the 
effect  of  the  denial  of  the  equities  of  the 
bill  merely,  is  entitled  to  great  considera- 
tion on  appeal,  and  should  not  be  disturbed, 
except  under  peculiar  circumstances,  or 
unless  an  abuse  of  discretion  is  shown. 
Godey  v.  Godey,  39  Cal.  157. 

Duration  of  restraining  order.  The 
phrase,  in  a  restraining  order,  "until  the 
further  order  of  the  court,"  has  not  the 
effect  of  prolonging  the  restraining  order 
beyond  the  pendency  of  the  motion  for  an 
injunction;  otherwise  it  would  convert  the 
restraining  order  into  a  preliminary  in- 
junction, which  could  not  be  operative 
until  a  bond  was  given;  and  where  no 
bond  is  required  for  the  restraining  order, 
by  making  an  order  to  show  cause  the 
court  adjudges  that  a  preliminary  injunc- 
tion shall  not  be  made  until  the  defendant 
is  heard.  San  Diego  Water  Co.  v.  Pacific 
Coast  S.  S.  Co.,  101  Cal.  216;  35  Pac.  651. 
This  phrase,  "until  the  further  order  of 
the  court,"  has  no  other  meaning  than  "in 
the  mean  time,"  or  "until  the  decision 
upon  the  order  to  show  cause,"  and  a 
restraining  order,  made  at  the  commence- 
ment of  the  action,  expires,  by  its  own 
terms,  at  the  hearing  of  the  motion,  and, 
although  it  may  be  continued  until  the 
terminai;ion  of  the  suit,  yet  an  order  so 
continuing  it  is,  in  fact,  a  new  and  dis- 
tinct restraint,  which,  in  itself,  is  a  pre- 
liminary injunction.  Curtiss  v.  Bachman, 
110  Cal.  433;  52  Am.  St.  Eep.  Ill;  42 
Pac.  910.  Where  there  is  no  appearance 
at  the  time  the  order  to  show  cause  is 
returnable,  and  the  motion  for  the  in- 
junction is  not  continued  nor  kept  alive 
in  any  mode,  the  restraining  order  falls, 
for  it  is  only  authorized  to  be  made  pend- 
ing the  motion.  San  Diego  Water  Co.  v. 
Pacific  Coast  S.  S.  Co.,  101  Cal.  216;  35 
Par-.  651. 

Effect  of  refusal  of  injunction  on  re- 
straining order.  Where  an  order  is  made 
to  show  cause  why  an  injunction  should 
not  be  granted,  and  to  restrain  the  de- 
fendant   until    the    hearing,    and    on    the 

§  531.  Injunction  to  suspend  business  of  a  corporation,  how  and  by  whom 
granted.  An  injunction  to  suspend  the  tjeneral  and  ordinary  business  of 
a  corporation  eannot  be  f^'ranted  without  due  notice  of  the  application  there- 
for to  the  proper  officers  or  managing  agent  of  the  corporation,  except  when 
the  people  of  this  state  are  a  party  to  the  proceeding. 


hearing  the  injunction  ig  refused,  the 
restraining  order  expires  by  limitation. 
Hicks  V.  Michael,  15  Cal.  107.  Where  the 
ultimate  rights  of  the  parties  cannot  be 
determined  in  advance  of  the  trial  of  the 
action,  a  preliminary  mandatory  injunc- 
tion should  not  be  granted,  unless  irrep- 
arable injury  will  result  from  its  refusal. 
Hagen  v.  Beth,  118  Cal.  330;  50  Pac.  425. 

Undertaking  required  when.  An  under- 
taking, as  a  condition  for  a  restraining 
order,  is  not  expressly  required  by  statute, 
although  the  supreme  court  has  said  one 
should  be  required;  but  it  is  expressly 
required  as  a  condition  for  a  preliminary 
injunction,  which  does  not  become  oper- 
ative until  the  bond  is  given.  San  Diego 
Water  Co.  v.  Pacific  Coast  S.  S.  Co.,  lul 
Cal.  216;  35  Pac.  651. 

CODE  COMMISSIONERS'  NOTE.  1.  Notice 
of  motion.  Notice  of  an  applicaiion  by  plaintiff 
must  be  given  for  the  lengtli  of  time  prescribed 
by  §  517  of  the  Practice  Act  (§  lOUo  of  this 
code).  If  given  for  a  shorter  time,  and  defend- 
ant does  not  appear,  lie  may  treat  an  injunction 
thus  obtained  as  granted  without  notice,  and  move 
to  dissolve,  under  §  118  (§  532  of  this  code). 
Johnson  v.  Uide  West  M.  Co.,  22  Cal.  479. 
See  also  Androvette  v.  Bowne,  15  Hovy.  Pr.  75; 
4.  Abb.   Pr.   440. 

2.  Security  upon  restraining  order.  The  tem- 
porary restraint  is  part  of  the  injunctive  relief 
which  the  code  provides,  and  before  the  order 
issues  should  be  required,  as  provided  in  the  pre- 
ceding section.  Per  Comstock,  J.,  in  Methodist 
Churches  v.  Barker,  18  N.  Y.  463;  Prader  v. 
Purkett,   13  Cal.   588. 

3.  Object  of  the  order.  The  object  of  the  prac- 
tice of  issuing  an  order  to  show  cause  before 
granting  the  injunction,  is  to  enable  parties  to 
present  the  case  on  the  merits.  Id. ;  Hicks  y. 
Michael,   15   Cal.  107. 

4.  When  the  order  should  or  should  not  be 
granted.  Injunctions  to  restrain  injuries  in  the 
nature  of  waste  should  not  be  granted  before 
hearing  on  the  merits,  except  in  cases  of  urjjent 
necessity,  or  when  the  subject-matter  of  the  com- 
plaint is  free  from  controversj',  or  irreparable 
mischief  will  be  produced  by  its  continuance. 
But  in  all  cases  where  the  right  is  doubtful,  the 
court  should  direct  a  trial  at  law,  and  in  the 
mean  time  grant  a  temporary  injunction  to  re- 
strain injurious  proceedings,  if  there  be  danger 
of  irreparable  mischief.  Hicks  v.  Michael,  15 
Cal.  107. 

5.  When  the  order  expires.  Where,  under 
§  116  of  the  Practice  Act  (§  530  of  this  code), 
an  order  is  made  restraining  defendants  until 
the  hearing,  and  on  the  hearing  uiinn  thp  order 
the  injunction  is  refused,  the  restraining  order  ex- 
pires.   Hicks   V.  Michael,   15   Cal.   107. 

6.  Effect  of  an  appeal.  An  appeal  from  an 
order  refusing  an  injunction,  upon  such  hearing, 
or  from  an  order  dissolving  an  injunction,  does 
not  create  an  injunction  or  prolong  the  restrain- 
ing order  in  the  former  case,  nor  revive  it  in  the 
latter,  pending  the  appeal.  Hicks  v.  Michael,  15 
Cal.  107. 


Legislation  8  531.  1.  Enacted  March  11,  1872; 
based  on  Praiticc  .\ct,  5  117  (Nfw  York  Code, 
§224),  as  uiniMxlcd  by  Stats.  1865-66,  p.  703, 
which  read:  "An  injunction  to  suspend  the  gen- 
eral and  ordinary  business  of  a  corporation  shall 


not  be  granted  e.xcept  by  the  court  or  a  judge 
thereof;  nor  shall  it  be  granted  without  due  no- 
tice of  the  application  therefor  to  the  proper 
officers  or  managing  agent  of  the  corporation, 
except  when  the  people  of  this  state  are  a  party 


525 


CORPORATIONS — MODIFICATION  OF  INJUNCTION — BOND. 


§532 


to  the  proceivlini,'."  When  ciiiictiMl  in  1872,  (1) 
the  words  "shall  not"  wore  rhanni'd  to  "rnnnot," 
after  "corporation,"  and  (2)  the  word  "shall" 
was  changed  to  "can,"  before  the  words  "it  he 
granted." 

2.  Amendment  by  Stats.  1901,  p.  KiS;  un- 
constitutional.   See  note  ante,  §  .'>. 

3.  Anieiided  by  Stats.  11)07,  p.  :!.I2.  the 
code  commissioner  saying,  "The  words  'except  by 
the  court  or  a  judge  thcrcdf;  nor  i-.-m  it  be 
granted'   are  omitted,   as  entirely   superfluous." 

Injunction  against  unlawful  acts.     The 

coniniissioii  of  unlawful  acts  l)y  ;i  eorpora- 
1  ion  is  not  a  jiart  of  its  ^piioral  an<l  orili- 
nary  business,  within  the  meaning  of  this 
section,  and  a  temjiorary  injunction  may 
issue  to  restrain  such  acts,  when  they  arc 
injurious  to  another,  without  notice  to  the 
corporation;  and  such  acts  are  none  the 
less  unlawful,  although  they  are  necessary 
to  the  carrying  on  of  the  business  of  the 
corjioration,  which  must  so  conduct  its 
business  as  that  it  shall  not  be  derogatory 
to  the  private  rights  of  others.  Hobbs  v. 
Amador  etc.  Canal  Co.,  66  Cal.  IGl;  4  Pac. 
1147. 

As  to  manner  of  operation.  An  injunc- 
tion restraining  a  coriKiral  ion  from  operat- 
ing its  business  in  a  j)articular  manner, 
alleged  to  be  to  the  injury  of  others,  does 
not  suspend  the  general  and  ordinary 
business  of  the  corjioration,  "in  buying 
and  selling  mining  claims,  or  in  working 
them."  Golden  Gate  etc.  Mining  Co.  v. 
Superior  Court,  65  Cal.  187;  3  Pac.  628.  A 
corporation,  whose  general,  ordinary,  and 
only  business  is  that  of  mining  by  the 
hydraulic  process,  and  of  selling  water  to 
others  to  be  used  for  a  like  luirpose,  may 
be  temporarily  enjoined,  upon  an  ex  parte 
api)licatiou,  without  notice  to  it,  from 
depositing  or  discharging  its  mining  debris 

§  532.  Motion  to  vacate  or  modify  injunction.  Bond  on  modification. 
If  an  injunction  is  granted  without  notice  to  the  person  enjoined,  lie  may 
apply,  upon  reasonable  notice  to  the  judge  who  granted  the  injunction,  or 
to  the  court  in  which  the  action  Avas  brought,  to  dissolve  or  modify  the 
same.  The  application  may  be  made  upon  the  complaint  or  the  affidavit 
on  which  the  injunction  was  granted,  or  upon  affidavit  on  the  part  of  the 
person  enjoined,  with  or  without  the  answer.  If  the  application  is  made 
upon  affidavits  on  the  part  of  the  person  enjoined,  but  not  otherwise,  the 
person  against  whom  the  application  is  made  may  oppose  the  same  by  affi- 
davits or  other  evidence  in  addition  to  that  on  which  the  injunction  was 
granted.  In  all  actions  pending,  or  which  may  hereafter  be  brought,  wherein 
an  injunction  or  restraining  order  has  been  or  may  be  granted  or  applied 
for,  to  prevent  the  diversion,  pending  the  litigation,  of  water  used,  or  to  be 
used,  for  irrigation  or  domestic  purposes  only,  if  it  be  made  to  appear  to 
the  court  that  great  damage  will  be  suffered  by  the  person  enjoined,  in 
case  the  injunction  is  continued,  and  that  the  person  in  whose  behalf  it  is  is- 
sued can  be  fully  compensated  for  any  damages  he  may  suffer  by  reason  of 
the  continuance  of  the  acts  enjoined  during  the  pendency  of  the  litigation, 
the  court  in  its  discretion,  may  dissolve  or  modify  the  injunction,  upon  the 
person  enjoined  giving  a  bond  with  sureties  to  be  approved  by  the  judge, 


in  certain  streams,  or  from  selling  its 
water  to  others  to  be  used  for  a  purpose 
jiroiiucing  a  like  result.  Eureka  Lake  etc. 
Canal  Co.  v.  Superior  Court,  66  Cal.  .311; 
")  Pac.  490.  An  injunction  restraining  a 
mining  corjjoration  from  withdrawing 
monej's  from  a  certain  bank,  or  from  sell- 
ing its  property,  has  not  the  effect  of 
suspending  tlie  general  and  ordinary  busi- 
ness of  such  corporation;  therefore  a  jire- 
liminary  injunction  to  such  effect,  issue<l 
without  noti<-e,  is  not  in\ali<l,  and  a  writ 
of  jirohibition  will  not  lie  to  dissolve  such 
injunction.  Fischer  v.  Superior  Court,  110 
Cal.  129;  42  I'ac.  .561. 

Upon  whom  binding.  The  effect  of  an 
injunction  restraining  the  acts  of  a  cor- 
poration, and  addressed  to  it  and  its 
agents,  etc.,  is  to  bind  not  only  the 
tangible  artificial  being,  but  also  all  the 
individuals  who  act  for  it  in  the  transac- 
tion of  its  business,  to  whose  knowledge 
the  decree  comes;  otherwise  it  would  be 
necessary,  in  order  effeetually  to  bind  a 
corporation  by  an  injunction,  to  make 
every  person  a  party  to  the  suit,  who  could 
by  any  possibility  be  its  agents  in  doing 
the  prohibited  act.  Morton  v.  Superior 
Court,  65  Cal.  496;  4  Pac.  489. 

CODE  COMMISSIONERS'  NOTE.  1.  Law  of 
the  place.  As  to  its  i  ffect  on  injunctions  against 
corporations,  see  O'Brien  v.  Chicago  etc.  H.  H. 
Co.,    36   How.   Pr.   24;    4   Abb.   Pr.    (N.    S.)    .381. 

2.  Equity  jurisdiction  over  corporations.  Efiuity 
has  no  jurisdiction  over  corporations  for  the 
purpose  of  restraining  their  operations  or  wind- 
ing up  their  concerns,  but  it  may  compel  the 
officers  of  the  corporation  to  account  for  any 
breach  of  trust:  but  the  jurisdiction  for  this  pur- 
pose is  over  the  officers  personallv.  Neall  '  FTi!!. 
16  Cal.  145;  76  Am.  Dec.  508;  see  also  Parrott 
V.  Byers,  40  Cal.   614. 


§532 


INJUNCTION. 


526 


and  in  such  amount  as  may  be  fixed  by  the  court  or  judge,  conditioned  that 
such  enjoined  person  will  pay  all  damages  which  the  person  in  whose  be- 
half the  injunction  issued  may  suffer  by  reason  of  the  continuance,  during 
the  litigation,  of  the  acts  complained  of.  Upon  the  trial  the  amount  of  such 
damages  must  be  ascertained,  and  in  case  judgment  is  rendered  for  the  per- 
son in  whose  behalf  the  injunction  was  granted,  the  amount  fixed  as  such 
damages  must  be  included  in  the  judgment,  together  with  reasonable  at- 
torney's fees.  In  any  suit  brought  on  the  bond,  the  amount  of  such  damages 
as  fixed  in  said  judgment  is  conclusive  on  the  sureties. 

Vacating  orders  made  out  of  court.   Post,  §  937.        The  right  to  move  for  the  dissolution  of  aa 


Legislation  §  532.  1.  Enacted  March  11,  1873; 
re-enactment  of  Practice  Act,  §  118  (New  York 
Code,  §  225),  which  read:  "If  an  injunction  be 
granted  without  notice,  the  defendant  at  any 
time  before  the  trial  may  apply  upon  reasonable 
notice  to  the  judge  who  granted  the  injunction, 
or  to  the  court  in  which  the  action  is  brought, 
to  dissolire  or  modify  the  same.  The  application 
may  be  made  upon  the  complaint  and  the  affidavit 
on  which  the  injunction  was  granted,  or  upon 
affidavit  on  the  part  of  the  defendant,  with  or 
without  the  answer.  If  the  application  be  made 
upon  affidavits  on  the  part  of  the  defendant,  but 
not  otherwise,  the  plaintiff  may  oppose  the  same 
by  affidavits,  or  other  evidence,  in  addition  to 
those  on  which  the  injunction  was  granted." 

3.  Amended  by  Stats.  1887,  p.  241,  (1)  add- 
ing a  comma  after  the  word  "notice,"  before  "to 
the  judge,"  and  (2)  adding,  at  the  end  of  the 
section,  the  following:  "In  all  actions  pending,  or 
which  may  be  hereafter  brought,  when  an  in- 
junction or  restraining  order  has  been  or  may  be 
granted  or  applied  for,  to  prevent  the  diversion, 
pending  the  litigation,  of  water  used  or  to  be 
used  for  irrigation  or  domestic  purposes  only,  if 
it  be  made  to  appear  to  the  court  that  great  dam- 
age will  be  suffered  by  the  defendant  in  case  the 
injunction  is  continued,  and  that  the  plaintiff  can 
be  fully  compensated  for  any  damages  he  may 
suffer  by  reason  of  the  continuance  of  the  acts 
of  the  defendant  during  the  pendency  of  the  liti- 
gation, the  court,  in  its  discretion,  may  dissolve 
or  modify  the  injunction,  upon  the  defendant  giv- 
ing a  bond,  with  sureties  to  be  approved  by  the 
judge,  and  in  such  amount  as  may  be  fixed  by  the 
court  or  judge,  conditioned  that  the  defendant 
will  pay  all  damages  which  the  plaintiff  may 
suffer  by  reason  of  the  continuance  during  the 
litigation  of  the  acts  complained  of.  Upon  the 
trial  the  amount  of  such  damages  shall  be  ascer- 
tained, and  in  case  judgment  is  rendered  for  the 
plaintiff,  the  amount  fi.xed  as  such  damages  shall 
be  included  in  the  judgment,  together  with  rea- 
sonable attorneys'  fees.  Upon  a  suit  brought  on 
the  bond  the  amount  of  damages  as  fixed  in  said 
judgment  shall  be  conclusive  upon  the  sureties." 

3.  Amendment  by  Stats.  1801,  p.  138;  un- 
constitutional.     See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  342;  the  code 
commissioner,  in  a  note,  Baying,  "See  first  portion 
of  note  to  §  530." 

Power  of  court  to  modify  or  dissolve. 

Under  this  section,  an  injunction  issued 
under  §  527,  ante,  can  be  vacated  or  modi- 
fied. Morton  v.  Morton,  148  Cal.  142;  1 
L.  E.  A.  (N.  S.)  660;  82  Pac.  664.  An  ex 
parte  order,  not  in  its  nature  permanent, 
may  be  dissolved  or  modified  by  the  court, 
on  its  own  motion,  whenever  it  is  satisfied 
that  the  order  was  improvidently  or  er- 
roneously made.  Wolf  v.  Board  of  Su- 
pervisors, 150  Cal.  285;  89  Pac.  85.  The 
court  granting  a  preliminary  injunction 
may,  in  the  exercise  of  its  ju<licial  dis- 
cretion, modify  the  same  at  any  time 
before  final  judgment.  Hobba  v.  Amador 
etc.   Canal   Co.,   66   Cal.   161;   4  Pac.   1147. 


injunction  before  final  hearing  exists,  only 
where  it  was  granted  without  notice  ac- 
cording to  this  section.  Natoma  etc.  Min- 
ing Co.  v.  Parker,  16  Cal.  83.  This  section 
expressly  limits  the  power  of  the  court 
to  modify  or  dissolve  injunctions  to  those 
granted  without  notice.  Ots  v.  Superior 
Court,  10  Cal.  App.  168;  101  Pac.  431. 
Where  the  notice  of  a  motion  for  an  in- 
junction was  given  only  a  few  hours  be- 
fore the  hearing,  and  the  defendant  did 
not  appear,  the  order  granting  the  injunc- 
tion is  to  be  deemed  to  have  been  made 
without  notice,  and  the  defendant  may 
move  to  dissolve  it.  .Johnson  v.  Wide  West 
Mining  Co.,  22  Cal.  479.  An  injunction 
granted  after  notice  cannot  be  dissolved 
until  after  or  upon  the  trial  of  the  case 
upon  its  merits.  Humphry  v.  Buena  Vista 
Water  Co.,  2  Cal.  App.  540;  84  Pac.  296. 
When  a  temporary  injunction  was  granted 
upon  notice  and  a  hearing,  and  no  appeal 
was  taken,  it  cannot  be  modified  or  dis- 
solved until  the  trial  of  the  case  upon  its 
merits.  Ots  v.  Superior  Court,  10  Cal.  App. 
168;  101  Pac.  431.  An  order  dissolving 
an  injunction,  not  stating  the  grounds 
therefor,  is  prima  facie  an  adjudication 
that  there  was  no  foundation  for  the  is- 
suance thereof,  and  that  it  should  not 
have  been  issued;  otherwise  it  was  in- 
cumbent on  the  defendant  to  see  to  it 
that  the  order  contained  the  proper  re- 
citals, showing  that  the  injunction  was  dis- 
solved for  other  reasons,  or  to  make  the 
facts  appear  in  some  other  proper  way. 
Fowler  v.  Frisbie,  37  Cal.  34.  A  mere 
declaratory  order,  that  the  injunction  is 
no  longer  in  force,  which  is  not  filed  with 
the  clerk  nor  intended  to  be  entered  in 
the  minutes  of  the  court,  is  not  a  "direc- 
tion" of  the  court  nor  an  appealable  order. 
Devlin  v.  Eydberg,  132  Cal.  324;  64  Pac. 
396.  The  right  to  a  temporary  injunction 
is  considered  as  adjudicated  by  the  decis- 
ion at  the  hearing  upon  the  order  to  show 
cause;  the  injunction  being  issued,  the 
remedy  of  the  defendant  is  by  appeal,  if 
the  right  to  apply  for  a  dissolution  upon 
the  filing  of  the  answer  is  not  expressly 
reserved;  and  the  privilege  of  moving  for 
a  dissolution  upon  the  filing  of  the  answer 
is  limited  to  cases  where  the  injunction  is 
originally  granted  without  notice.  Natoma 
etc.  Mining  Co.  v.  Clarkin,  14  Cal.  544. 


527 


NOTICE — COMPLAINT,  AMENDING,  ETC. — DENIALS. 


§532 


Necessity  for  notice  of  application.     A 

preliminary  iujuiu-tion  i-aiinot  l)e  ilissolvt'd 
or  modified,  exco[)t  ii])on  notice  to  the 
plaintiff:  to  modify  it  in  iniitortant  par- 
ticulars, ex  parte,  is  error.  Cherry  Hill 
Gold  Mining  Co.  v.  Baker,  147  Cal.  724; 
82  Pac.  370.  Although  an  injunction  has 
been  granted  without  notice  to  the  defend- 
ant, yet,  under  tliis  section,  he  must  serve 
upon  the  plaintifT  notice  of  his  motion  to 
dissolve  it.  Page  v.  Vaughn,  13;'.  Cal.  335; 
65  Pac.  740;  and  see  Hefflon  v.  Bowers,  72 
Cal.  270;  13  Pac.  U90.  The  manner  of  pro- 
curing the  revocation  of  an  order  granting 
an  injunction  is  prescribed  by  this  section: 
it  is  not  regulated  by  §  9.'57,  post,  which 
refers  to  the  modification  of  ex  parte 
orders.  Hefllon  v.  Bowers,  72  Cal.  270;  13 
Pac.  690. 

Further  showing  by  plaintiff.  Under  the 
old  chancery  jtracticc,  where  the  defend- 
ant moved  upon  bill  and  answer,  the 
plaintiff  could  make  no  further  showing, 
but  the  plaintiff  could  anticii)ate  the  de- 
fendant's case,  and  annex  to  his  bill 
affidavits  designed  to  meet  it;  but  this  put 
the  plaintiff  to  possibly  useless  labor,  and 
was  neither  an  orderly  nor  a  logical 
method.  Falkinburg  v.  Lucy,  35  Cal.  52; 
95  Am.  Dec.  76.  So  long  as  the  defend- 
ant rests  his  right  to  have  the  order  grant- 
ing the  injunction  modified  or  vacated 
upon  the  matters  considered  by  the  court 
in  granting  it,  there  is  no  good  reason  for 
allowing  the  plaintiff  to  be  heard;  but 
where  the  defendant  goes  further,  and 
offers  evidence  to  overcome  the  plaintiff's 
prima  facie  case,  it  becomes  necessary,  by 
virtue  of  both  the  reason  and  the  letter 
of  the  rule,  to  permit  the  plaintiff  to  sup- 
port with  additional  evidence  his  prima 
facie  case,  which  is  all  that  was  required 
of  him  in  the  first  instance.  Hetflon  v. 
Bowers,  72  Cal.  270;  13  Pac.  690.  Where 
an  injunction  has  lieen  granted  without 
notice  to  the  defendant,  he  may  move  to 
dissolve  upon  the  papers  upon  which  the 
injunction  was  granted,  or  upon  such 
papers,  and  affidavits  on  his  part,  with  or 
without  the  answer:  should  he  pursue  the 
first  course,  the  plaintiff  can  make  no 
further  showing,  but  must  stand  upon  his 
complaint,  or  complaint  and  affidavits,  as 
the  ease  may  be;  but  should  he  pursue 
the  second  course,  the  ])laintiff  may  meet 
it  with  a  further  showing.  Falkinbura'  v. 
Lucy,  35  Cal.  52;  95  Am.  Dec.  76.  The 
plaintiff  is  not  required  to  serve  upon  the 
defendant  copies  of  the  affidavits  used  in 
reply  to  the  answer,  on  a  motion  to  dis- 
solve the  injunction.  Delger  v.  Johnson,  44 
Cal.  182. 

Effect  of  insufficiency  of  complaint. 
"Where  the  complaint  does  not  state  a 
cause  of  action,  an  order  refusing  to  dis- 
solve the  injunction  is  erroneous  (Yuba 
County  V.  Cloke,  79  Cal.  239;  21  Pac.  740); 
but  that  two  causes  of  action  are  im- 
properly joined,  without  separately  stating 


them,  is  no  ground  for  dissolving  the  in- 
junction.   Fuhn  V.  Weber,  38  Cal.  636. 

Effect  of  amending  complaint.  An 
amended  complaint,  by  leave  of  the  court 
or  judge,  may  be  filed  without  prejudice 
to  an  injunction  previously  granted,  and, 
when  thus  filed,  the  injunction  will  not  be 
dissolved  by  reason  thereof.  Barber  v. 
Reynolds,  33  Cal.  497.  Where,  upon  ap- 
peal, the  complaint  was  held  insufficient 
to  sustain  the  judgment,  the  injunction 
should  be  dissolved  upon  the  case  being 
remaniled,  unless  the  comjdaint  was  so 
amended,  prior  to  or  contemporaneous 
with  the  motion  to  dissolve,  as  to  set  forth 
a  cause  of  action  which  would  uphold  the 
de<Tee.    Pfister  v.  Wade,  59  Cal.  273. 

Effect  of  answer  denying  equities. 
Where  an  injunction  was  grantoil.  with- 
out notice,  upon  the  filing  of  a  complaint, 
and  an  answer  is  afterwards  fileil,  deny- 
ing all  the  equities  of  the  complaint,  the 
injunction  will  be  dissolved  on  motion. 
Real  Del  Monte  etc.  Mining  Co.  v.  Pond 
etc.  Mining  Co.,  23  Cal.  82;  Gardner  v. 
Perkins,  9  Cal.  553;  Burnett  v.  Whitesides, 
13  Cal.  156;  Curtis  v.  Sutter,  15  Cal.  259; 
Johnson  v.  Wide  West  Mining  Co.,  22  Cal. 
479.  Where  the  answer  denies  all  the 
material  allegations  of  the  complaint  on 
which  the  injunction  was  granted,  and  the 
complaint  is  unsupported  by  affidavits  or 
other  proof,  the  injunction  should  be  dis- 
solved. Johnson  v.  Wide  West  Mining  Co., 
22  Cal.  479.  The  general  rule  in  England, 
that,  if  the  answer  positively  denies  the 
exclusive  right  of  the  plaintiff,  the  injunc- 
tion will  be  dissolved,  is  based  upon  the 
])ractice  of  not  permitting  affidavits  to  be 
read  to  contradict  the  answer  as  to  the 
question  of  title.  Merced  Mining  Co.  v. 
Fremont,  7  Cal.  317;  68  Am.  Dec.  262. 
However,  under  our  practice,  where  the 
defendant  moves  to  dissolve  the  injunction 
upon  what  he  has  prepared  as  his  verified 
answer,  he  makes  it  an  affidavit,  in  the 
sense  of  the  statute,  for  all  the  purposes 
of  his  motion,  and  he  cannot  deprive  the 
plaintiff  of  his  right  to  reply  by  way  of 
affidavits  on  his  part.  Falkinburg  v.  Lucr, 
35  Cal.  52;  95  Am.  Dec.  76;  Hiller  v.  Col- 
lins, 63  Cal.  235.  A  verified  answer  is 
entitled  to  be  read  and  considered,  the 
same  as  is  a  verified  complaint,  in  a  mo- 
tion to  dissolve  the  injunction.  Christopher 
V.  Condogeorge,  128  Cal.  581;  61  Pac.  174. 
The  defendant  is  not  allowed  to  move  to 
dissolve  the  injunction  upon  the  answer 
with  or  without  affidavits,  but  upon  affi- 
davits with  or  without  the  answer;  hence, 
if  he  moves  upon  what  he  has  pre]iare(l 
as  his  verified  answer,  he  makes  it  an 
affidavit,  and  he  cannot,  by  calling  it  an 
answer,  deprive  the  plaintiff  of  his  right 
to  reply.  Falkinburg  v.  Lucv,  35  Cal.  52; 
95  Am!  Dec.  76;  Hiller  v.  Collins,  63  Cal. 
235.  The  general  rule,  that,  where  the 
answer  fully  denies  the  equities  of  the  bill, 
the  injunction  should  be  dissolved,  or  that 


§532 


INJUNCTION. 


528 


the  dissolution  of  the  injunction  must  fol- 
low the  filing  of  the  answer  as  a  mere 
legal  conclusion,  is  not  one  of  universal 
application,  or  without  exception  (Godey 
V.  Godey,  39  Cal.  157);  but  where  the 
allegations  of  the  complaint  as  to  the 
cause  of  action  for  an  injunction  were 
upon  information  and  belief,  and  the  an- 
swer positively  denied  such  allegations 
under  oath,  the  injunction  should  be  dis- 
solved. Yuba  County  v.  Cloke,  79  Cal.  239; 
21  Pac.  740.  While  denials  upon  informa- 
tion and  belief,  in  the  answer,  are  au- 
thorized as  a  matter  of  pleading,  and  are 
sufficient  to  raise  an  issue,  yet  they  are 
not  such  denials  as  will  serve  as  the  basis 
of  a  motion  to  dissolve  the  injunction  on 
the  ground  that  the  equities  of  the  bill 
are  fullv  denied  bv  the  answer.  Porter  v. 
Jennings,  89  Cal.  440;  26  Pac.  965;  Dingley 
v.  Buckner,  11  Cal.  App.  181;  104  Pac. 
478.  The  affidavit  upon  a  motion  to  dis- 
solve the  injunction,  to  be  sufficient,  must 
constitute  written  proof  and  state  pro- 
bative facts;  and  it  is  insufficient,  where 
it  assumes  merely  to  take  the  place  of  the 
answer  to  the  complaint,  by  admitting  or 
denying  its  allegations,  and  stating  only 
ultimate  facts  or  conclusions.  Marks  v. 
Weinstoek,  121  Cal.  53;  53  Pac.  362. 
Where  there  is  no  allegation  of  the  insol- 
vency of  the  defendant,  nor  that  he  would 
not  be  able  to  answer  all  damages  re- 
coverable at  law,  nor  any  peculiar  grounds 
shown  why  a  recovery  could  not  be  had 
at  law  for  these  damages,  but  there  was 
presented  the  mere  naked  case  of  a  claim 
to  property  and  for  damages,  which  claim 
is  denied,  and  no  showing  of  irreparable 
damage  or  equitable  circumstances  calling 
for  the  interposition  of  equity,  and  the 
entire  equity  of  the  bill  is  denied  in  the 
answer,  the  injunction  should  be  dissolved. 
Burnett  v.  Whitesides,  13  Cal.  156. 

When  injunction  will  be  dissolved. 
Where,  although  absolute  insolvency  is  not 
charged,  yet  it  appears  that  a  judgment 
for  damages  would  be  worthless;  that  the 
rights  of  the  defendant  are  protected  by 
a  bond,  and  no  injury  could  result  to  him 
from  the  continuance  of  the  injunction; 
that  the  plaintiff  has  no  security  what- 
ever, and  a  dissolution'  of  the  injunction 
would  leave  him  at  the  mercy  of  the  de- 
fendant,— a  motion  to  dissolve  a  temporary 
injunction  should  be  denied.  Hicks  v. 
Compton,  18  Cal.  206.  A  preliminary  in- 
junction should  be  allowed  to  stand  until 
the  trial,  a  dissolution  being  improper,  as 
practically  equivalent  to  a  dismissal  of 
the  action  before  a  trial  upon  the  merits. 
where  the  injunction  sought  is  not  ancil- 
lary to  other  relief,  but  is  the  gist  of  the 
action.  Bullard  v.  Kenipff,  119  Cal.  9;  50 
Pac.  780;  Porter  v.  Jennings,  89  Cal.  440; 
26  Pac.  965.  An  injunction  granted  upon 
an  order  to  show  cause,  after  a  full  hearing 
of  the  case  upon  the  merits,  cannot  bo  dis- 
solved, upon  motion,  before  the  final  hear- 


ing: the  remedy  is  by  appeal  from  the 
order  granting  the  injunction.  Natoma 
etc.  Mining  Co.  v.  Parker,  16  Cal.  83;  and 
see  Natoma  etc.  Mining  Co.  v.  Clarkin,  14 
Cal.  544.  Where  the  acts,  the  jDerformance 
of  which  is  sought  to  be  restrained.,  were 
performed  before  the  order  for  the  injunc- 
tion was  made  or  served,  the  injunction 
will  be  dissolved.  Delger  v.  Johnson,  44 
Cal.  182;  and  see  Gardner  v.  Stroever,  81 
Cal.  148;  6  L.  E.  A.  9U;  22  Pac.  483.'  An 
order  refusing  to  dissolve  the  injunction  is 
an  appealable  order,  and  where  no  bond 
was  given  thereupon,  the  order  must  be 
reversed,  whether  the  injunction  was 
served  upon  the  defendant  or  not.  Neu- 
mann V.  Moretti,  146  Cal.  31;  79  Pac.  512. 
A  nonsuit  should  be  followed  by  an  order 
dissolving  the  injunction,  as  a  matter  of 
course.  Harris  v.  McGregor,  29  Cal.  124. 
A  verdict  for  the  defendant  dissolves  an 
injunction  granted  as  an  ancillary  remedy 
to  a  legal  action.  Brennan  v.  Gaston,  17 
Cal.  372. 

CODE     COMMISSIONERS'    NOTE.       1.   When 

the  right  exists.  'I'he  right  to  move  to  dissolve 
beiore  final  hearing  exists  only  where  the  in- 
junction was  granted  without  notice.  Iv'atoma 
Water  etc.  Co.  v.  Parker,  16  Cal.  83;  Heushaw 
V.   Clark,   14  Cal.  460. 

2.  Permissive  nature  of  proceedings  under  this 
section,  'ihis  section,  so  far  as  it  authorizes  an 
application  to  a  judge  out  of  court,  is  permissive, 
and  does  uot  abridge  the  general  power  of  the 
court  conferred  by  §  937  of  this  code.  The  spe- 
cial provision  made  by  this  section  is  not  in- 
tended as  a  substitute  for  the  power  coult-rred 
by  §  937,  but  is  in  addition  to  such  power.  Bor- 
land V.  Thornton,  12  Cal.  440 ;  Woodruff  v. 
Fisher,  17  Barb.  224,  230;  Bruce  v.  Delaware 
etc.  Canal  Co.,  8  How.  Pr.  440;  Peck  v.  Yorks, 
41   Barb.  547. 

3.  Motion  by  party  in  contempt.  A  party  ia 
contempt  for  disobedience  may  move  to  dissolve. 
Field  V.  Chapman,  13  Abb.  Pr.  320;  14  Abb.  Pr. 
133:  Field  v.  Hunt,  23  How.  Pr.  80;  Field  v. 
Hunt,  22  How.  Pr.  329;  Smith  v.  Reno,  6  How. 
Pr.  124.  But  see  dictum  in  Krom  v.  Hogan,  4 
How.  Pr.  225;  and  Evans  v.  Van  Hall,  Moak'a 
Clarke   Ch.    17,   24. 

i.  Motion,  on  what  made.  Where  an  injunc- 
tion is  granted  without  notice,  the  defendant 
may  move  to  dissolve  it,  either:  1.  Upon  the 
papers,  whatever  they  may  have  been,  upon  which 
it  was  granted;  or  2.  Upon  the  papers  upon 
which  it  was  granted,  and  affidavits  on  the  part 
of  the  defendant,  with  or  without  answer.  In 
the  first  case  the  plaintiff  can  make  no  further 
showing,  but  must  stand  upon  the  papers  upon 
which  the  injunction  was  granted;  in  the  sec- 
ond case,  he  may  meet  the  defendant  with  a 
counter-showing.  The  use  of  a  verified  answer 
is  the  use  of  an  affidavit  in  the  sense  of  §  118  of 
the  Practice  Act.  Falkinburg  v.  Lucy,  35  Cal. 
52;    95   Am.   Dec.   76. 

5.  When  made  on  complaint  and  answer.  The 
general  rule,  that  when  an  answer  fully  denies 
the  equities  of  the  complaint  the  injunction  should 
be  dissolved,  is  not  of  universal  application;  there- 
fore, when  the  court  below,  upon  such  pleadings, 
continues  the  injunction  in  force,  its  order  to 
that  effect  will  not  be  reversed  on  appeal,  ex- 
cept under  peculiar  circumstances.  De  Godey  v. 
Godev.  39  Cal.  157;  see  also  Gardner  v.  Per- 
kins," 9  Cal.  553;  Burnett  v.  Whitesides,  13  Cal. 
156;  Johnson  v.  Wide  West  Min.  Co.,  22  Cal. 
479;  Real  Del  Monte  etc.  Min.  Co.  v.  Pond  etc. 
Min.  Co.,  23  Cal.  82.  A  temporary  injunction 
ought  to  be  dissolved  upon  an  answer  which  does 
not  present  a  full  denial  of  the  equities  in  the 
complaint.  De  Godey  v.  Godey,  39  Cal.  157; 
Fuhn  V.  Weber,  38  Cal.  636.  That  two  causes 
of  action  have  been  joined,  but  not  separately 
stated,  is  no  ground  for  the  dissolution  of  an  in- 


529  VACATED   OR  MODIFIED  WHEN — ATTACHMENT   ISSUES    WHEN.       §§533,537 


junction.  Fuhn  v.  Weber,  38  Cal.  63C.  An 
amended  complaint  may  be  filed  without  preju- 
dice to  an  injunction  previously  granted.  Uur- 
ber  V.   Hoynolds,   .Ci    Cal.   497. 

6.  When  made  on  affidavits.  See  Hicks  v. 
Michael,    1.5   C'lil.    107;    and   snhd.    4   of   this   note. 

7.  Special  cases  of  dissolution.  \Vh<Te  an 
assessment  was  made  for  the  purpose  of  ini- 
proviiiK  a  street',  by  which  the  property  of  the 
l)laintiff,  in  common  with  the  property  of  oilier 
persons  owning  lots  on  the  same  street,  was  bene- 
fited, and  the  iniprovoment  was  completed  with- 
out the  plainlilT  interposing,  in  the  outset,  to 
prevent  it,  and  he  then  filed  a  compl.nint  to  stay 
the  sale  of  his  land,  by  virtue  of  an  ordinam-e 
of  the  city,  for  the  purpose  of  avoiding  the  pay- 
ment of  the  assessment.  It  was  held,  that  the 
injunction  ought  to  be  dissolved,  on  the  eround 
that  he  who  asks  equity  must  do  equity:  that  the 
city  should  be  permitted  to  proceed  and  sell  the 
plaintiff's  land  for  the  purpose  of  satisfying 
the  assessment,  leaving  him,  after  the  sale,  to 
the  technical  rights  which  he  set  up  by  reason, 
as  he  claimed,  of  some  irregulnrity  in  the  mode 
of  making  the  assessment.  Weber  v.  San  Frnn- 
cisco.  1  Cal.  4  5.5.  Plaintiffs  sue  defendants  for 
damages  for  alleged  trespass  upon  a  portion  of 
quartz-mining  claims,  alleged  in  the  complaint 
to  be  the  proper!}'  and  in  the  possession  of 
plaintiffs,  asking  an  injunction  against  further 
trespasses,  which  was  granted,  the  complaint 
averring  the  insolvency  of  defendants.  The  de- 
fendants denied  all  the  alleerations  of  the  com- 
plaint, and  averred  ownership.  The  jury  found, 
generally,  "for  defendants."  Then  the  defendants 
moved  to  amend  the  judgment  by  adding  thereto 
the    words,    "and    that    the    injunction    heretofore 

§  533.  When  to  be  vacated  or  modified.  If  npon  snch  application  it  satis- 
factorily appear  that  there  is  not  sufficient  g:ronnd  for  the  injunction,  it  must 
be  dissolved ;  or  if  it  satisfactorily  appear  that  the  extent  of  the  injunction 
is  too  great,  it  must  be  modified. 

Legislation  S  533.      Enacted  March   11,   18T2;  CODE  COMMISSIONEKS'  NOTE.    See  note  to 

l&ased  on  Practice  Act,  §  119.  which  had  the  word         $  532,  post, 
"shall"    instead   of   "must,"   in  both  instances. 


granted  be,  and  the  same  is,  hereby  dissolved." 
wliich  was  refused;  but  the  judgment  was  so 
modified  as  to  permit  defendants  to  work  the  sur- 
face diggings  described  in  their  answer.  Held, 
that  the  action  amounted  to  an  action  of  tres- 
pass, with  an  injunction  as  auxiliary  thereto; 
and  that  the  action  itself,  having  failed  by  the 
verdict  for  defendants,  the  injunction  fell  with 
it,  and  should  have  been  dissolved.  Brennan  T. 
Gaston,  17  Cal.  372.  A  reversal  of  a  judgment, 
which  judgment  awards  the  )>lainti(T  possession 
of  land,  and  enjoin.s  the  defendant  from  commit- 
ing  waste  on  the  land,  also  reverses  the  injunc- 
tion decree,  even  if  the  decree  is  not  included 
in  the  record  sent  to  the  appellate  court.  Mc- 
Gairahan  v.  Maxwell,  28  Cal.  84.  When  a  pre- 
liminary injunction  is  granted  on  plaintiff's  ap- 
plication, the  injunction  must  be  dissolved,  if  a 
nonsuit  is  granted.  Harris  v.  McUregor,  29 
Cal.    1'.'4. 

8.  Jurisdiction  law  of  the  place.  The  acts  of  a 
foreign  corporation  ultra  vires,  according  to  the 
law  of  this  state,  but  infra  vires  according  to 
the  law  of  its  own  state,  cannot  be  restrained  by 
our  courts.  O'Brien  v.  Chicago  etc.  R.  R.  Co.,  36 
How.  Pr.  24;  4  Abb.  Pr.  (N.  S. )  381;  53  Barb. 
568. 

9.  Effect  of  a  motion  for  new  trial.  The  pen- 
dency of  such  a  motion  does  not  suspend  the  in- 
junction.   Ortman   v.   Di.xon,  9  Cal.  23. 

10.  Effect  of  an  appeal.  An  apiteal  from  an 
order  dissolving  a  restraining  order  does  not  con- 
tinue the  order.  Hicks  v.  Michael,  15  Cal.  107. 
Nor  is  an  injunction  dissolved  or  superseded  by 
an  appeal.  Merced  Mining  Co.  v.  Fremont,  7  Cal. 
130. 


CHAPTER  IV. 

ATTACHMENT. 


S  537.    Attachment,  when  and  in  what  cases  may 

issue. 
§  538.     Affidavit   for  attachment,  what  to  contain. 
§  539.     Undertaking    on    attachment.      Exceptions 

to  sureties. 
§  540.     Writ,  to  whom  directed  and  what  to  state. 
§  541.     Shares  of  stock  and  debts  due  defendant, 

how  attached  and  disposed  of. 
§  542.    How  real   and  personal  property   shall   be 

attached. 
§  542s.  Lien  of  attachment. 
§  543.     Attorney    to    give    written    instructions    to 

sheriff  what  to  attach. 
§  544.     Garnishment,     when     garnishee     liable     to 

plaintiff. 
§  545.    Citation  to  garnishee  to   appear  before  a 

court  or  judge. 
§  546.     Inventory,   how  made.      Party  refusing  to 

give  memorandum  may  be  compelled  to 

pay  costs. 
§  547.     Perishable  property,  how  sold.      Accounts 

without  suit  to  be  collected. 


§  548.  Property  attached  may  be  sold  as  under 
execution,  if  the  interests  of  the  par- 
ties require. 

§  549.  When  property  claimed  by  a  third  party, 
how  tried. 

§  550.  If  plaintiff  obtains  judgment,  how  satis- 
fied. 

§  551.  When  there  remains  a  balance  due,  how 
collected. 

§  552.  When  suits  may  be  commenced  on  the 
undertaking. 

§  553.  If  defendant  recovers  judgment,  what  the 
sheriff  is  to  deliver. 

§  554.     Proceedings  to  release  attachments. 

§  555.  Attachment,  in  what  cases  it  may  be  re- 
leased and  upon  wliat  terms. 

I  556.  When  a  motion  to  discharge  attachment 
may  be  made,  and  upon  what  grounds. 

§  557.  When  motion  made  on  affidavit,  it  may  be 
opposed  by  affidavit. 

§  558.     When  writ  must  be  discharged. 

g  5.59.     When  writ  to  be  returned. 

§  560.     Release  of  real  property  from  attachment. 


§  537.  Attachment,  when  and  in  what  cases  may  issue.  The  plaintiff,  at 
the  time  of  issuing  the  summons,  or  at  any  time  afterward,  may  have  the 
property  of  the  defendant  attached,  as  security  for  the  satisfaction  of  any 
judgment  that  may  be  recovered,  unless  the  defendant  give  security  to  pay 
such  judgment,  as  in  this  chapter  provided,  in  the  following  cases: 

1  Fair. — 34 


§537 


ATTACHMENT. 


530 


1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct  payment 
of  money,  where  the  contract  is  made  or  is  payable  in  this  state,  and  is  not 
secured  by  any  mortgage  or  lien  upon  real  or  personal  property,  or  any 
pledge  of  personal  property,  or,  if  originally  so  secured,  such  security  has, 
without  any  act  of  the  plaintiff,  or  the  person  to  whom  the  security  was 
given,  become  valueless. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a  defendant 
not  residing  in  this  state. 

3.  In  an  action  against  a  defendant,  not  residing  in  this  state,  to  recover 
a  sum  of  money  as  damages,  arising  from  an  injury  to  property  in  this  state, 
in  consequence  of  negligence,  fraud,  or  other  wrongful  act. 

passage    of    the    amendment.     O'Connor   v. 
Blake,  29  Cal.  312.     To  acquire  any  rights 


Garnisliment.     Post,  §§  542,  543-545. 
Preventing    levy    by    counter-bond.      See  post, 
§  540. 

Residence.    See  Pol.  Code,  §  52. 

Legislation  §  537.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  120,  as  amended  by 
Stats.  1860,  p.  300,  which  read:  "The  plamtiflf, 
at  the  time  of  issuing  his  summons,  or  at  any 
time  afterwards,  may  have  the  property  of  the 
defendant  attached  as  security  for  the  satiufaction 
of  any  judgment  that  may  be  recovered,  unless 
the  defendant  give  security  to  pay  such  judgment, 
as  hereinafter  provided,  in  the  following  cases: 
1.  In  an  action  upon  a  contract,  express  or  im- 
plied, for  the  direct  payment  of  money,  which 
contract  is  made  or  is  payable  in  this  state,  and 
is  not  secured  by  a  mortgage,  lien,  or  pledge, 
upon  real  or  personal  property,  or,  if  so  secured, 
that  such  security  has  been  rendered  nugatory  by 
the  act  of  the  defendant.  2.  In  an  action  upon 
a  contract,  express  or  implied,  against  a  defend- 
ant not  residing  in  this  state."  When  enacted  in 
1872,  (1)  the  word  "his,"  before  "summons,"  was 
changed  to  "the,"  (2)  the  word  "the"  was  omit- 
ted before  "defendant  give,"  and  (3)  the  word 
"hereinafter"  was  changed  to  the  words  "in  this 
chapter." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  306, 
(1)  in  the  introductory  paragraph,  (a)  adding  a 
comma  after  the  word  "attached,"  and  (b)  add- 
ing the  word  "the"  before  "defendant  give";  (2) 
changing  subd.  1  to  read:  "In  an  action  upon  a 
contract,  express  or  implied,  for  the  direct  pay- 
ment of  money,  where  the  contract  is  made  or  is 
payable  in  this  state,  and  is  not  secured  by  any 
mortgage  or  lien  upon  real  or  personal  property, 
or  any  pledge  of  personal  property,  or,  if  origi- 
nally so  secured,  such  security  has,  without  any 
act  of  the  plaintiff,  or  the  person  to  whom  the 
securitv  was  given,  become    [sic]   valueless." 

3.  Amended  by  Stats.  1905,  p.  433,  (1)  in 
the  introductory  paragraph,  changing  "after- 
wards" to  "afterward,"  (2)  in  subd.  1,  changing 
"becomes"  to  "become,"  and   (3)    adding  subd.  3. 

Construction  of  statutes  relating  to  at- 
tachment. All  legislation  bearing  upon 
the  question  should  be  considered,  and  par- 
ticularly that  portion  bearing  upon  attach- 
ments as  the  subject-matter;  the  sections 
relating  to  this  subject  are  all  in  pari 
materia,  and  are  to  be  construed  together, 
in  order  to  ascertain  the  intention  of  the 
legislature;  and  where  the  question  stands 
upon  implication,  the  court  will  imply  that 
which  will  uphold,  rather  than  that  which 
must  defeat,  the  principal  purpose  of  the 
Statute.  Lick  v.  Madden,  25  Cal.  202. 
Where  both  the  original  statute  and  an 
amendment  thereof  contain  a  provision 
limiting  the  right  of  attachment  to  ac- 
tions on  contracts  "made  after  the  pas- 
sage of  this  act,"  such  words  do  not  limit 
the    right    to    debts    contracted    after    the 


under     attachment     proceedings,     a    strict 
compliance  with  the  law  is  required.    Clyne 
V.  Easton,  148  Cal.  287;   113  Am.  St.  Rep. 
253;   83  Pac.  36.     The  right  to  an  attach- 
ment, and  the   mode  of  procedure  for  ob- 
taining  it,    are    creatures    of    the    statute, 
upon  the  terms  of  which  they  depend  for 
their  existence  and  regularity.  Merchants' 
Nat.  Union  v.  Buisseret,  15  Cal.  App.  444; 
115  Pac.  58.     Proceedings  by  attachment  are 
statutory    and    special,    and    the    provisions 
of   the   statute   must   be   strictly   followed, 
in  order  to  acquire  any  rights  thereunder 
(Griswold  v.  Sharpe,  2  Cal.  17;  Roberts  v. 
Landeeker,   9   Cal.   262;   Low   v.   Henrv,   9 
Cal.  538;  Hisler  v.  Carr,  34  Cal.  641;  Mudge 
V.  Steinhart,  78  Cal.  34;   12  Am.   St.  Keo. 
17;  20  Pac.  147;  Gow  v.  Marshall,  90  Cal. 
565;   27   Pac.   422;   Kennedy   v.   California 
Sav.    Bank,   97    Cal.    93;    33    Am.    St.    Rep. 
163;  31  Pac.  846;  Rudolph  v.  Saunders,  111 
Cal.   233;   43  Pac.   619;   Beltaire  v.   Rosen- 
berg, 129  Cal.  164;   61  Pac.  916;   Clyne  v. 
Easton,  148  Cal.  287;  113  Am.  St.  Rep.  253; 
83  Pac.  36);   but  the  statutory  provisions 
should  be  fairly  interpreted,  so  as  to  give 
them   a   consistent   and   efficient   operation 
in  proper   cases    (Roberts  v.   Landeeker,  9 
Cal.  262;   Ayres  v.  Burr,  132   Cal.   125;   64 
Pac.   120);   and  the  remedj'  cannot  be  ex- 
tended to  cases  not  named  in  the  statute. 
Clymer  v.  Willis,  3  Cal.  363;   58  Am.  Dec. 
414;  Kennedy  v.  California  Sav.  Bank,  97 
Cal.  93;  33  .A.m.  St.  Rep.  163;  31  Pac.  846. 
Nature  of  remedy.     The  legislature  may 
determ.ine    in    what    cases    an    attachment 
may  issue.    Dennis  v.  First  Nat.  Bank,  127 
Cal.  453;  78  Am.  St.  Rep.  79;  59  Pac.  777. 
The   remedy  by   attachment  is   not   a   dis- 
tinct  proceeding,  in   the   nature   of  an  ac- 
tion in  rem,  but  is  a  proceeding  auxiliary 
to  an  action  at  law,  designed  to  secure  the 
payment    of    any    judgment    the    plaintiif 
may   obtain    (Low   v.    Adams,    6    Cal.    277; 
Allender  v.  Fritts.  24  Cal.  447;  Rosenthal 
V.   Perkins,    123    Cal.    240;    55    Pac.    804); 
it  is  not  a  part  of  the  main  action,  but  is 
a  provisional,  independent  proceeding,  ini- 
tiated by  affidavit,  which  is  the  basis  for 
the  writ    (Nail   v.   Superior   Court,   11   Cal. 
App.   27;   103   Pac.  902);   and  is  a  remedy 


531 


SUMMONS,   SECOND   AND  VOID — COMPLAINT — CONTRACT. 


§537 


given  only  in  eases  of  indebtedness  arising 
upon  contract.  Griswold  v.  Sliarpe,  2  Cai. 
17;  Mudge  v.  Steinhart,  78  Cal.  34;  12  Am. 
St.  Kep..  17;  20  Pac.  147.  The  right  to  an 
attaclunent,  and  tiie  mode  of  procedure  for 
obtaining  it,  are  the  creatures  of  statute, 
depending  for  their  existence  and  regu- 
larity upon  the  terms  of  the  code  (Kohler 
V.  Agassiz,  99  Cal.  9;  33  Pac.  741);  and 
being  merely  a  creature  of  statute,  the 
existence  and  operation  of  the  attachment 
in  any  case  can  continue  no  longer  than 
the  statute  provides.  Loveland  v.  Alvord 
etc.  Mining  Co.,  76  Cal.  562;  18  Pac.  6S2; 
Hamilton  v.  Bell,  123  Cal.  93;  55  Pac.  758. 
The  plaintiff  cannot  claim,  as  matter  of 
right,  the  benefit  of  the  attachment  as 
something  growing  out  of  or  necessarily 
connected  with  the  contract,  as  he  may 
have  the  benefit  of  an  action  to  recover 
his  debt;  the  attachment  is  merely  auxili- 
ary to  the  action,  and  the  legislature  may 
give,  withhold,  or  limit  it,  at  its  pleasure, 
without  impairing  any  substantial  right  of 
either  party.  Myers  v.  Mott,  29  Cal.  359; 
89  Am.  Dec.  49."' 

Time  of  issuing  writ.  The  writ  may  be 
■issued  at  the  time  of  issuing  summons,  or 
at  any  time  afterwards.  Allender  v.  Pritts, 
24  Cal.  447;  Johnson  v.  Miner,  144  Cal. 
785;  78  Pac.  240.  An  attachment,  issued 
before  the  summons,  is  a  nullity.  Low  v. 
Henry,  9  Cal.  538;  Henrietta  Mining  etc. 
Co.  V.  Gardner,  173  U.  S.  123;  43  L.  Ed. 
637;   19  Sup.  Ct.  Rep.  327. 

Effect  of  second  summons.  An  attach- 
ment, regularly  issued  at  the  time  of  the 
issuance  of  the  first  summons,  is  not  vi- 
tiated by  the  failure  to  serve  the  first 
summons  and  the  issuance  of  a  second  one; 
nor  is  the  validity  of  the  attachment  in 
any  way  affected  by  the  proceedings. 
Seaver  v.  Fitzgerald.  23  Cal.  85. 

Effect  of  void  summons.  An  unauthorized 
and  void  summons  will  not  support  the 
writ.    Hisler  v.  Carr,  34  Cal.  641. 

Suflficiency  of  the  complaint.  The  plain- 
tiff must  show  affirmatively  that  the  con- 
tract falls  within  the  provisions  of  this 
section  (Drake  v.  De  Witt,  1  Cal.  App. 
617;  82  Pac.  982);  and  that  the  claim  or 
debt  is  due.  Davis  v.  Eppinger,  18  Cal. 
378;  79  Am.  Dec.  184;  Kinsey  v.  Wallace, 
36  Cal.  462.  It  is  not  necessary  that  either 
the  complaint  or  the  contract  itself  shall 
show  the  amount  due.  Kohler  v.  Agassiz, 
99  Cal.  9;  33  Pac.  741;  De  Leonis  v.  Etche- 
pare,  120  Cal.  407;  52  Pac.  718.  A  gen- 
eral allegation  in  the  complaint,  that  the 
plaintiff  has,  on  his  part,  performed  the 
contract,  for  the  breach  of  which  the  ac- 
tion was  prosecuted,  does  not  imply  that 
the  plaintiff,  by  such  performance,  in- 
tended to  discharge  such  contract  or  the 
defendant's  liability  thereunder.  Hale  Bros. 
V.  Milliken,  142  Cal.  134;  75  Pac.  653. 
W^here  the  complaint  shows  that  the  ac- 
tion is  upon  contract  and  not  in  tort,  it  is 
immaterial   that    the    prayer   is   for   an   ac- 


counting. Kohler  v.  Agassiz,  99  Cal.  9; 
33  Pac.  741;  De  Leonis  v.  Etchepare,  120 
Cal.  407;  52  Pac.  718.  Where  a  complaint 
joins  two  causes  of  action  upon  contract, 
and  the  plaintiff  is  entitled  to  an  attach- 
ment on  only  one  of  them,  the  provision 
of  §  540,  post,  that  the  amount  of  the  plain- 
tiff's demand  must  be  stated  in  conformity 
to  the  complaint,  is  to  be  construed  as 
limited  to  the  cause  of  action  for  which 
the  attachment  is  authorized.  Baldwin  v. 
Napa  etc.  Wine  Co.,  137  Cal.  646;  70  Pac. 
732.  The  attachment  of  property  of  a  cor- 
poration, in  a  suit  against  certain  named 
persons  and  others,  designated  as  compos- 
ing the  corporation,  is  invalid  as  an  at- 
tachment of  corporation  property,  although 
after  the  levy  of  the  writ  the  comjilaint 
was  amended  so  as  to  substitute  the  cor- 
])oration  as  defendant  in  the  place  of  in- 
dividuals originally  served.  Collins  v. 
Montgomery,    16   Cal.   398. 

Action  upon  a  contract.  An  action 
against  a  stockholder  to  recover  his  pro- 
jjortion  of  a  debt  of  the  corporation  is  one 
founded  upon  a  contract,  for  which  an  at- 
tachment may  issue  (Kennedy  v.  California 
Say.  Bank,  97  Cal.  93;  33  Am.  St.  Rep. 
163;  31  Pac.  846;  Dennis  v.  Superior  Court, 
91  Cal.  548;  27  Pac.  1031);  as  is  also  an 
action  by  the  assignee  of  a  corporation  in 
insolvency,  to  recover  money  due  from  its 
stockholders,  upon  their  subscriptions  to 
the  capital  stock.  Agassiz  v.  Superior 
Court,  90  Cal.  101;  27  Pac.  49;  Kohler  v. 
Agassiz,  99  Cal.  9;  33  Pac.  741.  An  as- 
sessment by  a  board  of  directors  is  not  a 
necessary  element  of  an  attachable  cause 
of  action  upon  a  stockholder's  contract  of 
subscription.  Kohler  v.  Agassiz,  99  Cal.  9; 
33  Pac.  741.  An  action  for  a  failure  to  re- 
ceive and  pay  for  goods  according  to  the 
terms  of  a  contract  between  the  parties  is 
an  action  founded  in  contract,  and  not  in 
tort,  and  the  plaintiff  is  entitled  to  an  at- 
tachment. Donnelly  v.  Strueven,  63  Cal. 
182.  An  undertaking  on  appeal  is  an  ex- 
press contract  for  the  payment  of  money, 
in  the  sense  of  the  statute  in  relation  to 
attachments,  for  which  an  attachment  may 
issue  (Hathaway  v.  Davis,  33  Cal.  161); 
as  is  also  a  bail  bond  in  a  criminal  case. 
San  Francisco  v.  Brader,  50  Cal.  506. 
Where  a  defendant  agreed,  in  considera- 
tion of  the  plaintiff  making  a  subscrijition 
to  stock  at  a  specified  price,  to  repurchase 
same  on  notice,  there  is  an  express  con- 
tract for  the  direct  payment  of  money, 
upon  which  an  attachment  may  be  issued. 
Flagg  V.  Dare.  107  Cal.  482;  40  Pac.  804. 
The  relation  between  principal  and  agent 
is  founded  upon  contract,  and  the  law  im- 
plies a  promise  bj'  the  latter  that  he  will 
pay  over  moneys  received  by  him  to  the 
principal  on  demand;  and  in  an  action  to 
recover  moneys  so  collected,  an  attach- 
ment may  issue  (De  Leonis  v.  Etchepare, 
120  Cal.  407;  52  Pac.  718);  and  the  law 
implies   a   promise   to   refund   money   paid 


§537 


ATTACHMENT. 


532- 


OD  a  consideration  which  has  entirely 
failed:  such  implied  promise  is  a  contract 
for  the  direct  payment  of  money,  and  an 
attachment  may  issue.  Santa  Clara  Valley 
etc.  Co.  V.  Tuck,  53  Cal.  304.  A  license 
tax  is  in  the  nature  of  a  debt  due  from  the 
licensee  to  the  county,  precisely  as  though 
he  had  contracted  with  the  county,  and  an 
attachment  may  issue.  San  Luis  Obispo 
County  V.  Hendricks,  71  Cal.  242;  11  Pac. 
682;  El  Dorado  County  v.  Meiss,  100  Cal. 
268;  34  Pac.  716;  Sacramento  v.  Dillman, 
102  Cal.  107;  36  Pac.  385;  San  Luis  Obispo 
County  V.  Greenberg,  120  Cal.  300;  52  Pac. 
797.  The  beneficiary  of  a  fraternal  order, 
after  the  death  of  the  member,  is  a  credi- 
tor who  has  the  right  of  attachment. 
Lackmann  v.  Supreme  Council,  142  Cal.  22; 
75  Pac.  583.  Indorsers,  guarantors,  sure- 
ties, and  all  others  who  undertake  to  pay 
or  become  responsible  for  the  debts  of  an- 
other, are  liable  to  attachment.  Hathaway 
V.  Davis,  33  Cal.  161.  Moneys  received 
under  the  terms  of  a  contract,  and  due  the 
plaintiff  as  a  specific,  definite  debt,  are 
liable  to  attachment.  Wheeler  v.  Farmer, 
38  Cal.  203.  An  action  to  recover  money 
intrusted  by  the  plaintiff  to  an  employee, 
and  which  the  defendant  won  from  him  in 
gambling,  is  not  upon  a  contract,  and  a 
writ  of  attachment  does  not  lie.  Babcock 
V.  Briggs,  52  Cal.  502. 

Attachment  in  action  for  damages  for 
breach  of  contract.  In  an  action  for  dam- 
ages for  the  breach  of  a  contract,  an  at- 
tachment may  issue,  even  where  proof  is 
necessary  at  the  trial  to  show  the  amount 
of  damages;  but  there  must  exist  a  basis 
upon  which  the  damages  can  be  deter- 
mined by  proof  (Dunn  v.  Mackey,  80  Cal. 
104;  22  Pac.  64;  De  Leonis  v.  Etchepare, 
120  Cal.  407;  52  Pac.  718);  and  an  attach- 
ment lies  upon  a  cause  of  action  for  dam- 
ages for  a  breach  of  contract,  where  the 
damages  are  readily  ascertainable  by  refer- 
ence to  the  contract  and  proof  of  what 
was  done  under  it,  and  the  basis  of  com- 
putation of  damages  appears  to  be  reason- 
able and  definite  (Hale  Bros.  v.  Milliken, 
142  Cal.  134;  75  Pac.  653);  but  where  the 
contract  does  not  furnish  the  measure  of 
the  liabilitj'  of  the  defendant,  and  the 
damages  are  unliquidated,  an  attachment 
does  not  lie.  De  Leonis  v.  Etchepare,  120 
Cal.  407;  52  Pac.  718;  Baldwin  v.  Napa  etc. 
Wine  Co.,  137  Cal.  646;  70  Pac.  732.  Dam- 
ages for  breach  of  a  contract  to  furnish 
building  material,  resulting  in  loss  of 
rents,  are  such  as  can  be  readily  ascer- 
tained, and  entitle  the  plaintiff  to  a  writ 
of  attachment.  Hale  Bros.  v.  Milliken,  142 
Cal.  134;  75  Pac.  653.  Where  an  agent  ex- 
pressly contracts  to  sell  property  within 
a  certain  time,  at  a  specified  price,  an  at- 
tachment may  issue  in  an  action  for  a 
breach  of  such  contract;  and  the  measure 
of  damages  is  the  difference  between  the 
actual  value  at  the  end  of  the  time  speci- 


fied and  the  price  contracted  to  be  realized, 
Dunn  V.  Mackey,  80  Cal.  104;  22  Pac.  64. 

Contracts  for  direct  payment  of  money. 
The  legislature,  in  the  use  of  the  words- 
"direct  payment,"  in  the  first  subdivision 
of  this  section,  has  expressed  its  will  in 
language  not  a  little  obscure,  and  the  ad- 
jective "direct"  is  used  in  an  unnatural  or 
strained  sense;  but,  in  the  opinion  of  the 
supreme  court,  a  clew  to  its  meaning  is 
aft'orded  in  §  538,  post,  where  the  plaintiff 
must  swear  that  the  defendant  is  indebted 
to  him  in  a  certain  sum,  specifying  the 
amount,  this  language  excluding  all  causes 
of  action  for  unliquidated  sums  of  money. 
Hathawav  v.  Davis,  33  Cal.  161;  and  see 
Dunn  V.  Mackay,  80  Cal.  104;  22  Pac.  64. 
The  official  bond  of  a  county  treasurer  is 
an  obligation  for  the  direct  payment  of 
mone.y,  upon  which  an  attachment  may 
issue.  Monterey  County  v.  McKee,  51  Cal. 
255.  The  liability  of  a  tenant  in  posses- 
sion, to  the  purchaser  at  foreclosure  sale, 
for  rents  or  use  and  occupation  from  the 
day  of  sale  to  the  expiration  of  the  time 
for  redemption,  is  not  a  liability  founded 
on  a  contract  express  or  implied,  and  a 
writ  of  attachment  will  not  lie.  Walker  v. 
McCusker,  65  Cal.  360;  4  Pac.  206;  Mc- 
Cusker  v.  Walker,  77  Cal.  208;  19  Pac.  382. 
The  amount  due  on  the  contract  need  not 
necessarily  appear  from  the  contract  itself ; 
but  it  must  be  shown  bv  the  affidavit. 
Dunn  v.  Mackey,  80  Cal.  104;  22  Pac.  64; 
De  Leonis  v.  Etchepare,  120  Cal.  407;  52 
Pac.  718. 

Contract  payable  in  this  state.  In  an 
action  on  a  contract  not  made  in  this  state,, 
an  attachment  cannot  issue,  unless  it  is  ex- 
pressly stipulated  that  it  shall  be  paid  in. 
this  state.  Eck  v.  Hoffman,  55  Cal.  501. 
Such  a  contract  is  presumptively  to  be  per- 
formed in  the  state  where  made  (Tuller  v. 
Arnold,  93  Cal.  166;  28  Pac.  863);  and  the 
right  of  attachment  does  not  extend  to 
such  cases,  unless  express  provision  is  made 
in  the  contract  for  payment  in  this  state 
(Drake  v.  De  Witt,  1  Cal.  App.  617;  82 
Pac.  982;  Atwood  v.  Little  Bonanza  Quick- 
silver Co.,  13  Cal.  App.  594;  110  Pac.  344);; 
and  a  subsequent  promise  to  pay  in  this 
state  cannot  affect  the  question  in  any 
wav,  where  suit  is  brought  on  the  original 
contract.  Dulton  v.  Shelton,  3  Cal.  206.  To 
authorize  an  attachment  in  this  state  upon 
a  contract  not  made  in  the  state,  it  must 
appear  by  the  contract  itself  that  the- 
money  is  payable  in  this  state.  Atwood  v. 
Little  Bonanza  Quicksilver  Co.,  13  Cal.  App. 
594;  110  Pac.  344.  A  contract  for  the  pay- 
ment of  money,  made  in  another  state,  is 
presumptively  to  be  performed  there;  and 
an  attachment  will  not  lie,  if  the  money  is 
not  payable  in  this  state  by  the  contract 
itself.  'Tuller  v.  Arnold,  93  Cal.  166;  28 
Pac.  863.  A  contract  to  pay  commissions 
on  sales  to  be  made  by  plaintiff  in  another 
state,  executed  and  to  be  performed  there,. 


533 


SECURITY — MORTGAGE,  LIEN,  PLEDGE — WAIVER. 


§537 


cannot  be  construed  as  a  contract  for  the 
payment  of  money  in  this  state,  and  will 
not  support  an  attachment.  Drake  v.  De 
Witt,  1  Cal.  App.  617;  82  Pac.  9S2.  A  con- 
tract, made  and  payable  in  another  state, 
cannot  be  changed  into  a  new  and  inde- 
pendent contract,  payable  in  this  state,  by 
the  creditor  sending  a  statement  of  the 
indebtedness  to  the  debtor  in  this  state,  if 
such  statement  and  the  actions  of  the  par- 
ties relating  thereto,  do  not  constitute  an 
account  stated.  Beltaire  v.  Rosenberg,  129 
Cal.  164;  61  Pac.  916.  The  issuance  of  an 
attachment,  in  a  transitory  action,  does 
not  affect  the  jurisdiction  of  the  court. 
Hodgkins  v.  Dunham,  10  Cal.  App.  690;  103 
Pac.  :ir<\. 

Security  of  mortgage,  lien,  or  pledge. 
The  statute  has  made  no  specification  of 
the  character  of  the  liens  necessary  to  fill 
the  recjuirements  of  this  section,  and  the 
court  is  not  authorized  to  make  any  dis- 
crimination in  favor  of  or  against  any 
particular  kind  of  lien.  Hill  v.  Grigsby,  32 
Cal.  55.  The  lien  must  be  of  a  fixed,  de- 
terminate character,  capable  of  being  en- 
forced with  certainty,  and  depending  on 
no  conditions.  Porter  v.  Brooks,  35  Cal. 
199.  The  policy  that  seems  to  have  dic- 
tated this  section  is,  that  a  creditor  having 
a  security  for  his  debt  by  way  of  mort- 
gage, lien,  or  pledge,  shall  not  be  entitled 
to  the  lien  afforded  by  attachment,  until 
he  has  exhausted  his  secu^rity.  Hill  v. 
Grigsby,  32  Cal.  55;  Porter  v. 'Brooks,  33 
Cal.  199.  A  lien  is  none  the  less  a  security 
T)ecause  the  property  covered  by  it  is  with- 
out the  jurisdiction  of  the  courts  of  this 
state;  its  value  there  may  be  equal,  or 
more  than  equal,  to  the  creditor,  to  its 
value  in  this  state.  Hill  v.  Grigsby,  32  Cal. 
55.  A  trust  fund,  created  by  the  will  of 
a  deceased  indorser  of  a  note  upon  which 
the  plaintiff  sues,  to  be  devoted  to  the 
payment  of  his  debts,  while  it  may  be  a 
security,  is  not  a  lien  of  the  character  con- 
templated by  this  section  (Bank  of  Cali- 
fornia V.  Boyd,  86  Cal.  386;  25  Pac.  20); 
nor  is  a  bond  executed  by  a  defendant,  and 
two  others  as  sureties,  to  secure  the  plain- 
tiff's debt,  security  by  mortgage  of  real  or 
personal  property,  or  pledge  of  personal 
property,  and  it  does  not  deprive  the  plain- 
tiff of  the  right  of  attachment.  Slosson  v. 
Glosser,  5  Cal.  Unrep.  460;  46  Pac.  276. 
An  attachment  lies  upon  unpaid  install- 
ments due  upon  a  subscription  to  the  stock 
of  a  corporation,  where  no  lien  exists  by 
contract,  and  a  transferable  certificate  has 
been  issued  by  the  corporation,  setting 
forth  the  terms  of  the  subscription  and  the 
amount  paid  thereon;  such  a  certificate 
gives  as  complete  possession  of  the  shares 
evidenced  by  it  as  if  it  were  for  paid-up 
stock;  and  the  corporation,  having  no  pos- 
session, has  no  seller's  lien  thereon,  and 
-can  have  no  general  lien,  except  for  assess- 
jnents,  in  the  absence  of  a  contract  between 


the  corporation  and  its  stockholders,  creat- 
ing a  lien  not  dependent  upon  possession 
of  the  certificate  of  stock  to  secure  the  in- 
debtedness of  the  stockholders  to  the  cor- 
poration. Lankershim  Kanch  etc.  Co.  v. 
Herberger,  82  Cal.  600;  23  Pac.  134.  A 
landlord  has  no  general  lien  upon  the  prop- 
erty of  his  lessee,  in  the  possession  of  the 
lessee,  on  leased  property,  and  lie  is  en- 
titled to  a  writ  of  attachment  in  an  action 
to  recover  rent.  Shea  v.  .Johnson,  101  Cal. 
455;  35  Pac.  1023.  The  lien  of  a  land- 
owner distraining  trespassing  animals  is 
limited  to  two  days  by  the  act  of  March 
7,  1878  (Stats.  1877-78,  p.  179);  and  hav- 
ing no  continuing  relief  by  distraint,  the 
act  in  no  way  conflicts  with  the  code  pro- 
vision limiting  the  right  of  attachment  to 
cases  where  there  is  no  securitv.  Wigmore 
V.  Buell,  122  Cal.  144;  54  Pac.  600.  A 
party,  by  securing  a  mechanic's  lien,  does 
not  forfeit  or  waive  it  by  causing  an  at- 
tachment to  be  issued  and  levied  upon 
property  of  the  debtor  to  secure  the  same 
demand:  the  two  remedies  are  cumulative, 
and  both  may  be  pursued  at  the  same  time. 
Brennan  v.  Swasey,  16  Cal.  140;  76  Am. 
Dec,  507.  An  attachment  issued  and  levied 
on  a  debt  secured  by  mortgage  is  invalid. 
Kinsey  v.  Wallace,  36  Cal.  462.  A  pledge 
of  personal  property  is  a  "mortgage" 
thereof,  within  the  attachment  act,  the 
word  being  used  therein  in  a  general  sense, 
meaning  security;  and  by  receiving  such 
pledge  as  security  for  a  debt,  the  creditor 
forfeits  his  right  to  enforce  his  debt  by  at- 
tachment. Payne  v.  Bensley,  8  Cal.  260;  68 
Am.  Dec.  318.  Stock  of  a  corporation,  held 
by  one  as  collateral  security  for  an  in- 
debtedness of  the  defendant,  is  such  secu- 
rity as  will  deprive  the  holder  of  his  right 
of  attachment;  the  value  of  such  holder's 
lien,  or  its  sufficiency  to  cover  the  amount 
of  claim  it  was  intended  to  secure,  or 
whether  or  not  the  certificates  had  been 
actually  indorsed,  are  matters  not  to  be 
inquired  into  on  a  motion  to  dissolve  the 
attachment.  Beaudry  v.  Vache,  45  Cal.  3. 
A  vendor's  lien  constitutes  a  lien,  within 
the  meaning  of  this  section.  Hill  v.  Grigsby, 
32  Cal.  55.  An  attachment  may  issue  in 
an  action  to  recover  purchase-money  due 
under  an  executory  contract  for  the  sale 
of  a  patent  right:  the  claim  therefor  is  not 
secured  by  a  vendor's  lien  upon  the  prop- 
erty sold,  as  no  such  lien  exists  under  an 
executory  contract  for  the  sale  of  personal 
property,  where  title  has  not  passed.  Eads 
V.  Kessler,  121  Cal.  244;  53  Pac.  656.  The 
plaintiff  cannot  waive  the  security  of  a 
mortgage,  and  bring  an  attachment  suit  on 
the  indebtedness.  Barbieri  v.  Ramelli,  84 
Cal.  154;  23  Pac.  1086.  The  lien  of  a  com- 
mon carrier  is  abandoned  by  his  election 
to  attach  the  propertv.  Wingard  v.  Ban- 
ning. 39  Cal.  543. 

Attaching  property  waives  lien  thereon. 
A  lien-holder,  who  levies  a  writ  of  attach- 


§537 


ATTACHMENT. 


534- 


ment  against  property  upon  which  he  has  a 
lien,  thereby  abandons  and  forfeits  such 
lien.  Wingard  v.  Banning,  39  C'al.  543. 
Unpaid  purchase-money  in  the  hands  of  the 
purchaser  of  mortgaged  personal  property, 
under  a  sale  authorized  by  the  mortgagee, 
is  liable  to  attachment,  in  an  action  by  a 
creditor  of  tbe  mortgagor,  to  the  exclusion 
of  any  claim  of  the  mortgagee,  whose  lien 
is  extinguished  by  such  sale.  Maier  v. 
Freeman,  112  Cal.  8;  53  Am.  St.  Rep.  151; 
44  Pac.  357.  A  pledgee  who  voluntarily 
parts  with  the  possession  of  pledged  goods 
and  transfers  them  to  a  third  party,  who 
guarantees  payment  of  his  debt,  thereby 
severs  the  debt  from  the  pledge,  and  the 
lien  is  extinguished  as  to  him.  Treadwell 
V.  Davis,  34  Cal.  601;  94  Am.  Dec.  770. 

Where  security  has  become  valueless. 
The  provision  of  this  section,  that  the 
security  must  have  become  valueless,  means 
that  the  property  pledged  must  have  ceased 
to  have  any  value  as  a  security,  not  that 
the  property  pledged  must  itself  have  be- 
come valueless,  before  the  plaintiff  can 
have  an  attachment;  and  where  a  pledgor 
authorized  the  pledgee  to  sell  the  pledged 
property  at  private  sale  only,  without  no- 
tice to  the  pledgor,  any  notice  of  such  sale 
is  thereby  expressly  waived,  and,  under 
the  maxim,  Conventio  vincit  legem,  the 
agreement  of  the  parties  overcomes  the 
provision  of  the  law  requiring  a  sale  at 
public  auction  upon  usual  notice.  Williams 
V.  Hahn,  113  Cal.  475;  45  Pac.  815.  An 
attachment  may  issue,  under  this  section, 
though  the  debt  was  originally  secured  by 
mortgage,  if  such  security,  without  any  act 
of  the  plaintiff  or  the  person  to  whom  it 
was  given,  has  depreciated  in  value  so  as 
to  become  valueless;  but  this  section  has 
no  application  to  a  case  where  the  security 
was  originally  valueless  or  inadequate,  and 
has  not  changed  in  value.  Barbieri  v.  Ra- 
melli,  84  Cal.  154;  23  Pac.  1086.  Mortgage 
bonds,  valueless  at  the  time  of  their  de- 
livery as  security,  are  not,  in  fact,  secu- 
rity; and  such  bonds  do  not  deprive  the 
creditor  of  his  right  to  an  attachment.  Mc- 
Phee  V.  Townsend,  139  Gal.  638;  73  Pac. 
584.  Where  land  has  been  alienated  by 
the  vendee,  the  vendor  is  not  required  to 
litigate  with  the  purchaser  to  ascertain 
whether  he  is  a  purchaser  for  value,  with- 
out notice,  before  resorting  to  his  attach- 
ment: the  vendee,  by  alienating  the  land, 
has  not  only  interposed  an  obstacle  in  the 
way  of  enforcing  the  lien,  but  has  rendered 
it  doubtful  whether  the  lien  is  not  wholly 
defeated;  and  be  cannot  compel  the  vendor 
to  solve  this  doubt  by  proceeding  against 
the  purchaser  before  suing  out  his  attach- 
ment. Porter  v.  Brooks,  35  Cal.  199;  .An- 
derson v.  Goff,  72  Cal.  65;  1  Am.  St.  Rep. 
34;  13  Pac.  73.  Although  the  lien  implied 
by  law  in  favor  of  a  vendor  who  has  parted 
with  the  legal  title  and  taken  no  security 
for  the  purchase-money  is  not  a  specific, 
absolute  charge  upon  the  property,  but  is 


personal  to  the  vendor,  and  does  not  pass 
by  a  transfer  of  his  claim  for  the  purchase- 
money,  yet  where  the  vendor  retains  the 
legal  title  under  an  executory  contract  for 
the  conveyance  of  the  land  upon  payment 
of  the  purchase-money,  he  holds  it  as  secu- 
rity for  the  purchase-money,  in  the  nature 
of  a  mortgage,  and  the  assignee  of  notes 
given  for  the  purchase-money  is  entitled 
to  the  security,  as  an  incident  to  the  debt,, 
and  cannot  attach  property  thereupon, 
Avithout  showing  that  the  security  has  be- 
come valueless.  Gessner  v.  Palmateer,  89- 
Cal.  89;  13  L.  R.  A.  187;  24  Pac.  608. 

Non-resident  defendants.  The  residence- 
referred  to  in  the  attachment  law  is  an 
actual  as  contradistinguished  from  a  con- 
structive or  legal  residence  or  domicile; 
and  where  a  person  has  a  settled  abode  for 
the  time  being,  for  purposes  of  business  or 
pleasure,  that  is  his  residence,  within  the 
meaning  of  the  attachment  law,  notwith- 
standing an  intention  to  return  to  the  place 
of  his  constructive  residence  or  domicile. 
Hanson  v.  Graham,  82  Cal.  631;  7  L.  R.  A. 
127;  23  Pac.  56;  Egener  v.  Juch,  101  Cal. 
105;  35  Pac.  432.  The  determination  of 
the  question  of  the  residence  of  a  person 
is  not  affected  by  his  honesty  or  dis- 
honesty; hence,  where  absconding  foreign 
debtors,  under  an  assumed  name,  purchased 
property  in  this  state,  and  lived  thereon 
until  the  commencement  of  an  action 
against  them-  upon  their  indebtedness,  the 
fact  of  their  residence  here  is  established, 
although  most  of  the  time  they  seemed  de- 
sirous of  disposing  of  the  property,  saying- 
that  in  the  event  of  selling  they  would 
leave  the  country.  Eck  v.  Hoffman,  55  Cal. 
501.  To  procure  an  attachment  against  the 
property  of  a  non-resident,  it  is  only  neces- 
sary that  the  complaint  shall  show  that  the 
action  is  founded  upon  a  contract,  express^ 
or  implied,  and  that  the  affidavit  shall 
state  the  facts  pointed  out  in  the  second 
and  fourth  subdivisions  of  §  538,  post.  Hale 
Bros.  V.  Milliken,  142  Cal.  134;  75  Pac.  653. 
The  service  of  summons  and  the  issuance- 
and  levy  of  an  attachment  are  both  requi- 
site to  confer  jurisdiction  in  the  case  of  a 
non-resident  defendant;  but  the  proceeding- 
for  the  publication  of  summons  is  distinct 
and  separate  from  the  proceeding  in  at- 
tachment. Smith  V.  Supreme  Lodge,  12^ 
Cal.  App.  189;  106  Pac.  1102.  The  seizure 
of  the  property  of  a  non-resident  defend- 
ant will  authorize  constructive  service  by 
publication  on  him,  and  justify  a  judgment 
subjecting  the  property  attached  to  the 
satisfaction  of  such  judgment;  but  it  will 
not  authorize  a  personal  judgment  against 
such  defendant.  Belcher  v.  Chambers,  53- 
Cal.  635;  Anderson  v.  Goff,  72  Cal.  65;  1 
Am.  St.  Rep.  34;  13  Pac.  73;  Mudge  v. 
Steinhart,  78  Cal.  34;  12  Am.  St.  Rep.  17^ 
20  Pac.  147;  Blanc  v.  Pavmaster  Mining 
Co.,  95  Cal.  524;  29  Am.  St.  Rep.  149;  3'a 
Pac.  765.  The  issuance  and  levy  of  an  at- 
tachment upon  the  property  of  a  non-resi- 


535 


PARTNERS — VESSELS — BANKS — PKIOKITY — INTERVENTION. 


§537 


dent  within  this  state  is  essential,  before 
jurisdiction  can  be  acquired  to  render  any 
judgment  at  all,  and  then  it  can  only  be 
enforced  against  the  property  attached. 
Smith  V.  Supreme  Lotlge.  12  Cal.  Ai>p.  1S9; 
106  Pac.  11U2.  A  writ  of  attachment, 
issued  in  an  action  sounding  in  tort,  docs 
not  confer  jurisdiction  in  rem  over  the 
property  of  a  non-resident  defendant  who 
is  served  with  summons  by  publication. 
Mudge  V.  Steinhart,  78  Cal.  34;  12  Am.  St. 
Rep.  17;  20  Pae.  147.  In  an  action  against 
a  non-resident  for  the  recovery  of  money, 
wliere  there  has  been  no  personal  service 
of  process  on  the  defendant  within  the 
state,  and  no  appearance  therein  by  him, 
no  judgment  can  be  given,  other  than  one 
in  the  nature  of  or  having  the  effect  of  a 
judgment  in  rem  against  such  projierty  of 
the  non-resident  as  may  have  been  specifi- 
cally attached  in  the  action.  Brown  v. 
Campbell.  100  Cal.  U35;  38  Am.  St.  Rep. 
314;  35  Pac.  433.  Where  property  belong- 
ing to  non-residents  is  attached,  prohibi- 
tion will  not  lie  to  restrain  the  jilaintiff 
from  proceeding  with  the  action,  upon  the 
ground  that  it  is  one  in  which  no  attach- 
ment will  lie,  there  being  a  remedy  by  ap- 
peal from  an  order  refusing  to  dissolve  the 
attachment.  Agassiz  v.  Superior  Court,  90 
Cal.  101;  27  Pac.  49. 

Attachment  by  partner,  against  firm.  No 
attachment  can  be  sued  out  by  one  part- 
ner against  another  for  any  matter  touch- 
ing the  partnership  affairs  (Wheeler  v. 
Farmer,  38  Cal.  203);  but  funds  in  the 
hands  of  a  receiver,  appointed  in  a  suit  by 
one  partner  for  dissolution,  may  be  at- 
tached by  a  creditor  of  the  partnership,  at 
any  time  before  the  decree  of  dissolution, 
and  priority  gained  over  other  creditors. 
Adams  v.  Woods,  9  Cal.  24. 

Attachment  against  vessel.  An  attach- 
ment proceeding  against  a  vessel  is  distinct 
from  an  ordinary  attachment  under  this 
section.  Jensen  v.  Dorr,  157  Cal.  437;  108 
Pae.  320. 

Attachments  against  banks.  Under  the 
National  Banking  Act,  an  attachment  can- 
not issue  against  a  national  bank  from  a 
state  court  (Dennis  v.  First  Nat.  Bank,  127 
Cal.  453;  78  Am.  St.  Rep.  79;  59  Pac.  777); 
nor,  where  a  commercial  bank  has  sus- 
pended and  closed  its  doors,  owing  to 
insolvency  in  fact,  does  the  right  of  at- 
tachment by  a  depositor  or  creditor  of  the 
bank  exist.  Crane  v.  Pacific  Bank,  106  Cal. 
64;  27  L.  R.  A.  562;  39  Pac.  215.  The  at- 
tachment of  a  draft  will  excuse  a  collect- 
ing agent  for  failure  to  collect,  or  to  return 
it  to  the  payee.  Davis  v.  First  Nat.  Bank, 
lis  Cal.  600;  50  Pac.  660. 

Priority  of  attachment  liens  as  between 
creditors.  A  prior  lien  gives  a  prior  claim, 
Vihich  is  entitled  to  prior  satisfaction  out 
of  the  subject  it  binds.  Scrivener  v.  Dietz, 
68  Cal.  1;  8  Pac.  609.  All  the  equities  are 
in  favor  of  the  most  diligent,  in  a  contest 
between  attaching  creditors.    Dixey  v.  Pol- 


lock, 8  Cal.  570.  The  rights  acquired  by 
the  attacjiment  creditor,  through  tlie  levy 
of  the  writ,  are  precisely  those  wiiich  his 
debtor  had  at  the  time  of  the  levy.  Han- 
dley  V.  Pfistcr,  39  Cal.  283;  2  Am.  Rep.  449; 
Bank  of  Ukiah  y.  Petaluma  Say.  Hank,  100 
Cal.  590;  35  Pac.  170.  An  attachment 
issued  before  the  maturity  of  the  debt  is 
l)rima  facie  void  as  against  a  subsequent 
attachment;  but  where  goods  were  fraud- 
ulently purchaseil  by  an  insolvent,  the 
creditor  ma}-  attach  before  the  maturity  of 
the  debt,  and  other  creditors,  subsequently 
attaching,  cannot  complain.  Patrick  y. 
Montader,  13  Cal.  434;  and  see  Taaffe  v. 
Josephson,  7  Cal.  352.  A  collusive  attach- 
ment confers  no  riglit  as  against  subse- 
quent bona  fide  attachments.  Briody  v. 
(Jonro,  42  Cal.  135.  A  subsequent  attach- 
ing creditor  cannot  question  the  regularity 
of  the  affidavit  and  undertaking  in  the  suit 
of  the  prior  attaching  creditor.  Fridenberg 
V.  Pierson,  18  Cal.  152;  79  Am.  Dec.  162. 
Where  a  subsequent  attaching  creditor  pro- 
cures the  first  attachment  against  the 
debtor  to  be  set  aside  as  fraudulent,  he 
cannot,  on  that  ground,  claim  priority  over 
the  attachment  preceding  his.  Patrick  v. 
Montader,  13  Cal.  434. 

Intervention  by  subsequent  attaching 
creditor.  An  attachment  creditor  may  in- 
tervene in  prior  attachment  suit,  and,  upon 
a  proper  showing,  defeat  the  lien  of  a  prior 
attaching  creditor.  Speyer  v.  Ihmels,  21 
Cal.  280;  81  Am.  Dec.  157;  McComb  v. 
Reed,  28  Cal.  281;  87  Am.  Dec.  115;  Mc- 
Eldowney  v.  Madden,  124  Cal.  108;  56  Pac. 
783;  Kimball  v.  Richardson-Kimball  Co., 
Ill  Cal.  386;  43  Pac.  1111.  Where  an  at- 
tachment is  issued  on  a  fraudulent  demand, 
or  on  one  which  has  in  fact  no  existence,  a 
subsequent  attachment  creditor  may  make 
himself  a  party  to  the  proceedings,  in  order 
to  defeat  them.  Fridenberg  v.  Pierson,  18 
Cal.  152;  79  Am.  Dec.  162.  A  subsequent 
attaching  creditor,  whose  writ  was  served 
by  way  of  garnishment  after  the  maturity 
of  the  indebtedness  of  the  garnishee  to 
the  defendant,  may  intervene  in  the  suit 
of  a  prior  attaching  creditor  of  the  same 
defendant,  whose  garnishment  was  serv'ed 
before  the  maturity  of  such  debt,  to  pre- 
vent the  paynent  of  the  attached  debt  to 
the  prior  attaching  creditor.  Gregory  v. 
Higgins,  10  Cal.  339.  A  creditor  of  an  in- 
solvent corporation,  who  has  obtained  a 
lien  by  attachment,  has  an  equitable  right 
of  intervention  in  a  prior  attachment  suit 
brought  by  an  insolvent  holder  of  unpaid 
stock  in  the  corporation,  whose  liability 
to  the  corporation  is  largely  in  excess  of 
his  claim  against  it,  in  order  to  prevent 
the  sole  assets  of  the  corporation  from 
going  to  such  stockholder,  to  the  exclusion 
of  creditors  who  have  an  equitable  right 
to  have  the  entire  property  and  assets,  in- 
cluding plaintiff's  liability  to  the  corpora- 
tion, appropriated  to  the  satisfaction  of 
their   demands;    and   the   prior   attachment 


§537 


ATTACHMENT. 


536 


lien  of  such  insolvent  stockholder  is  prop- 
erly postponed  to  that  of  the  intervener, 
and  the  equitable  rights  of  the  parties  can 
as  well  be  adjusted  in  the  proceeding  in 
intervention  as  by  a  separate  direct  action 
for  that  purpose.  Kimball  v.  Richardson- 
Kimball  Co.,  Ill  Cal.  386;  43  Pac.  1111. 
An  attaching  creditor  may  intervene  in  a 
suit  against  the  garnishee  by  the  latter's 
creditor,  an  assignee  of  the  attachment 
debtor,  to  determine  his  lien  upon  the  fund. 
Wheatley  v.  Strobe,  12  Cal.  92;  73  Am. 
Dec.  522.  The  judgment  of  an  intervener 
against  the  defendant  is  admissible  to 
prove  his  right  to  intervene.  Coghill  v. 
Marks,  29  Cal.  673.  The  burden  of  proof, 
after  the  intervener  has  proved  the  facts 
alleged  to  show  his  right  to  intervene,  is 
upon  the  plaintiff  to  prove  his  cause  of  ac- 
tion. Speyer  v.  Ihmels,  21  Cal.  280;  81  Am. 
Dec.  157.  A  lien  by  garnishment  gives  the 
same  rights  to  interveners  as  a  lien  by  di- 
rect attachment.  Kimball  v.  Richardson- 
Kimball  Co.,  Ill  Cal.  386;  43  Pac.  1111. 

Priority  as  to  attachment  and  other  liens. 
The  right  of  stoppage  in  transitu  is  para- 
mount to  any  lien  of  attachment  levied 
upon  the  goods,  before  delivery,  by  a  credi- 
tor of  the  vendee.  Blackman  v.  Pierce,  23 
Cal.  508.  The  lien  of  the  attachment  of 
an  interest  of  a  beneficiary  under  a  trust 
is  subject  to  the  equities  of  the  parties 
to  the  trust  agreement.  Ward  v.  Water- 
man, 85  Cal.  488;  24  Pac.  930.  Where 
certain  creditors  agree  to  a  transfer  of, 
property,  in  trust,  to  another  creditor,  the 
surplus,  after  sale,  to  be  returned  to  the 
debtor,  the  lien  of  the  transferee  and  those 
he  represents  is  superior  to  that  which 
other  creditors  could  acquire  by  a  subse- 
quent attachment.  Handley  v.  Pfister,  39 
Cal.  283;  2  Am.  Rep.  449.  Laborers  having 
preferred  claims  cannot  maintain  an  in- 
junction to  prevent  an  attaching  creditor 
from  dismissing  his  attachment  suit,  after 
notice  given  to  such  creditor  of  their  pre- 
ferred claims  according  to  law;  nor  can 
they  enforce  a  lien  in  equity  as  against 
such  creditor,  and  the  debtor,  and  the 
sheriff  who  levied  the  attachment.  Winrod 
V.  Welters,  141  Cal.  399;  74  Pac.  1037.  An 
antedated  note,  upon  which  an  attachment 
suit  is  based,  is  not  fraudulent  as  against 
a  subsequent  attaching  creditor,  merely 
because,  when  the  plaintiff  discovered  the 
insolvency  of  the  debtor,  he  procured  the 
latter  to  execute  such  note,  payable  on  de- 
mand, as  a  substitute  for  other  notes  not 
yet  due,  if  it  also  appears  that  the  latter 
notes  had  been  accepted  by  him  upon  giv- 
ing the  defendant  an  extension  of  time  for 
the  payment  of  pre-existing  debt,  without 
notice  of  the  defendant's  insolvency.  Brew- 
ster V.  Bours,  8  Cal.  501.  The  lien  of  the 
attachment  is  not  affected  by  the  appoint- 
ment of  a  receiver;  and  the  delivery  of 
the  attached  property  to  the  receiver,  ap- 
pointed subsequently  to  the  levying  of  the 
attachment,  does  not  release  any  valid  lien 


thereon.  Von  Roun  v.  Superior  Court,  58 
Cal.  358;  Bories  v.  Union  Building  etc. 
Ass'n,  141  Cal.  74;  74  Pac.  552.  The  re- 
ceiver of  an  insolvent  foreign  corporation, 
claiming  under  the  laws  of  another  state, 
has  no  rights  as  against  those  of  a  domestic 
attaching  creditor.  Lackmann  v.  Supreme 
Council,  142  Cal.  22;  75  Pac.  583.  The 
property  of  a  building  and  loan  association 
is  subject  to  attachment  at  any  time  prior 
to  the  commencement  of  an  action  by  the 
attorney-general  to  enjoin  it  from  doing 
business;  and  the  lien  of  an  attachment  is 
not  affected  by  a  prior  adverse  report  of 
a  state  board  of  commissioners  to  the  at- 
torney-general as  to  the  hazardous  business 
methods  of  such  association.  Bories  v. 
Union  Building  etc.  Ass'n,  141  Cal.  74;  74 
Pac.  552. 

Priority  as  to  mortgage  and  attachment. 
A  chattel  mortgage,  recorded  without  any 
verification  by  the  mortgagee,  is  void  as 
against  subsequent  attaching  creditors;  and 
a  subsequent  verification,  without  record- 
ing the  instrument  so  verified,  can  give  it 
no  validity.  Alferitz  v.  Scott,  130  Cal.  474; 
62  Pac.  735.  An  unrecorded  chattel  mort- 
gage is  void  as  against  subsequent  attach- 
ing creditors  of  the  mortgagor  (Beamer  v. 
Freeman,  84  Cal.  554;  24  Pac.  169),  re- 
gardless of  their  actual  notice  thereof;  and 
knowledge  of  its  existence  will  not  protect 
the  holder  of  the  chattel  mortgage  against 
an  attachment  by  a  creditor  of  the  mort- 
gagor. Cardenas  v.  Miller,  108  Cal.  250; 
49  Am.  St.  Rep.  84;  39  Pac.  783;  Rudolph 
V.  Saunders,  111  Cal.  233;  43  Pac.  619. 
A  chattel  mortgage,  defectively  acknowl- 
edged, is  void  as  against  an  attaching  credi- 
tor of  the  mortgagor,  unless  the  property 
was  reduced  to  possession  by  the  mort- 
gagee, prior  to  the  attachment.  Adlard  v. 
Rodgers,  105  Cal.  327;  38  Pac.  889.  Where 
a  mortgage  of  personal  property  was  re- 
corded in  the  county  where  it  was  exe- 
cuted, but,  after  the  removal  of  the 
property  to  another  county,  a  subsequent 
recordation  of  the  mortgage  in  the  latter 
county,  after  an.  attachment  had  been 
levied  on  the  property  in  such  county,  can- 
not avail  as  against  the  attaching  creditor. 
Fassett  v.  Wise,  115  Cal.  316;  36  L.  R.  A. 
505;  47  Pac.  47.  An  attachment  levied 
prior  to  the  date  of  a  mortgage,  by  the 
attachment  debtor,  takes  precedence  of  the 
mortgage,  and  the  sale  under  the  execu- 
tion in  the  attachment  suit  concludes  the 
rights  of  the  mortgagee  as  effectually  as 
it  does  those  of  the  mortgagor.  Reilly  v. 
Wright,  117  Cal.  77;  48  Pac.  970.  The  lien 
of  an  unrecorded  mortgage  of  real  estate 
takes  priority  over  the  lien  of  an  attach- 
ment levied  after  the  execution  of  the 
mortgage.  Bank  of  Ukiah  v.  Petaluma 
Sav.  Bank,  100  Cal.  590;  35  Pac.  170.  A 
mortgage  of  real  and  personal  property, 
executed  only  in  the  manner  that  a  mort- 
gage of  real  property  is  required  to  be  exe- 
cuted, is  void  as  to  the  personal  property, 


537 


PRIORITY — DEED,  ETC. — CREDITORS,  ETC. — DISCHARGE,  ETC. 


§537 


as  against  subsequent  attaching  creditors 
of  the  mortgagor.  Bishop  v.  McKillican, 
124  Cal.  321;  71  Am.  St.  Rep.  (iS;  57  Pac. 
76.  A  secret  lien  cannot  stand  as  against 
an  attachment  levied  on  a  growing  irop  as 
the  property  of  a  tenant  by  his  creditor. 
Stockton  Sav.  &  L.  Soc.  v.  Purvis,  112  Cal. 
236;  53  Am.  St.  Rep.  210;  44  Pac.  561.  In 
an  action  to  foreclose  a  mortgage,  defend- 
ants claiming  under  an  attachment  lien 
accruing  after  the  mortgage  was  given  are 
entitled  to  prove  the  e.xistence  of  their 
lien,  and  to  show  that,  in  consequence  of 
certain  acts  of  the  j)laintiff,  it  is  superior 
to  the  lien  of  the  mortgage.  Scrivener  v. 
Dietz,  6S  Cal.  1;  8  Pac.  609. 

Priority  as  to  deed  and  attachment.  An 
unrecorded  deed  is  effective  as  against  a 
subsequent  attachment  of  the  land  as  the 
property  of  the  grantor,  who  has  conveyed, 
in  fraud  of  his  creditors,  to  a  purchaser 
for  value  and  without  notice.  Morrovr  v. 
Graves,  77  Cal.  218;  19  Pac.  489.  A  writ 
of  attachment  is  not  an  "instrument," 
within  the  sense  of  that  term  as  used  in 
§  1107  of  the  Civil  Code;  therefore  an  un- 
recorded deed  will  prevail  over  an  attach- 
ment lien;  and  the  question  of  actual  notice 
of  the  conveyance  is  immaterial.  Hoag  v. 
Howard,  55  Cal.  564;  Plant  v.  Smythe,'45 
Cal.  161;  Foorman  v.  Wallace,  75  Cal.  552; 
17  Pac.  680;  Morrow  v.  Graves,  77  Cal. 
218;  19  Pac.  489;  Ward  v.  Waterman,  85 
Cal.  488;  24  Pac.  930.  A  conveyance  made 
after  an  attachment  is  subject  to  the  lien 
of  the  attachment.  Kinder  v.  Macv,  7  Cal. 
206. 

Priority  as  to  individual  and  firm  credi- 
tors. Partnership  property  can  be  seized 
upon  attachment  against  one  of  the  part- 
ners for  his  individual  debt,  and  sold;  but 
the  interest  which  passes  by  the  sale  is 
only  the  interest  of  the  debtor  partner  in 
the  residuum  of  the  partnership  property 
after  the  settlement  of  the  partnership 
debts.  Eobinson  v.  Tevis,  38  Cal.  611.  A 
creditor  attaching  partnership  property,  in 
a  suit  against  an  individual  partner,  does 
not  acquire  any  lien  upon  such  property 
as  against  the  superior  equity  of  'a  sub- 
sequently attaching  creditor  of  the  part- 
nership. Burkee  v.  Bunn,  22  Cal.  194; 
Commercial  Bank  v.  Mitchell,  58  Cal.  42; 
Whelan  v.  Shain,  115  Cal.  326;  47  Pac.  57. 
Where  one  partner  purchases  the  interest 
of  his  copartners  in  the  firm,  agreeing  to 
pay  the  firm  debts,  the  property  of  the  firm 
remains  bound  for  such  debts,  just  as  be- 
fore the  sale;  and  a  creditor  obtaining  a 
lien  by  attachment  is  entitled  to  file  a 
creditor's  bill,  without  waiting  for  judg- 
ment and  execution.  Conrov  v.  Woods,  13 
Cal.  626;  73  Am.  Dec.  605.  Where  two 
persons,  as  a  partnership,  are  also  members 
of  two  other  firms,  and  all  the  firms  fail, 
and  their  property  is  attached  by  credi- 
tors, the  creditors  of  the  first-named  part- 
nership are  entitled  to  priority  of  payment 
out  of  the  proceeds  of  the  property  of  such 


partnership,  over  the  creditors  of  the  other 
two  firms,  notwitiistanding  their  priority 
in  time  to  tlie  other  attachments.  Bullock 
v.  Hubbard,  2.{  Cal.  495;  S3  Am.  Dec.  130. 
The  creditor  of  an  individual  i)artner,  who 
has  merely  an  attachment  upon  his  inter- 
est in  the  partnersliij),  has  no  such  interest 
in  an  action  to  wind  up  the  affairs  of  the 
liartnershi|)  as  to  entitle  him  to  intervene. 
Isaacs  V.  Jones,  121  Cal.  257;  53  Pac.  793. 

Proceedings  to  determine  priority  o,f 
liens.  A  subsequent  attaching  crcjitor 
may  maintain  a  bill  in  equity  against  a 
prior  attaching  creditor,  to  show  that  the 
debt  alleged  by  the  latter  was  fraudulent, 
and  to  subject  the  lien  of  such  creditor  to 
his  own.  Wright  v.  Levy,  12  Cal.  257.  A 
complaint  in  an  action  to  determine  the 
invalidity  of  a  prior  attachment  lien,  which 
fails  to  aver  facts  from  which  the  court 
can  see  that  some  particular  kind  of  lien 
existed,  is  insufficient  (Shea  v.  .Johnson, 
101  Cal.  455;  35  Pac.  1023);  as  is  also  a 
creditor's  bill  in  equity,  filed  by  an  attach- 
ment creditor,  to  reach  equitable  assets 
fraudulently  conveyed,  or  fraudulently  sub- 
jected to  a  prior  attachment,  which  simply 
avers  that  the  conveyance  was  fraudulent, 
or  that  the  defendant  was  not  indebted  to 
the  prior  attaching  creditor:  the  facts  and 
circumstances  which  will  reasonably  sus- 
tain the  theory  of  the  bill  must  be  set 
forth.  Kinder  v.  Macy,  7  Cal.  206;  Castle 
V.  Bader,  23  Cal.  75.  "  The  priority  of  at- 
tachment liens  may  be  determined  in  an 
injunction  suit  brought  by  a  purchaser 
under  the  first  attachment  to  prevent  the 
sale  of  the  property  under  a  subsequent 
attachment.  Porter  v.  Pico,  55  Cal.  165. 
Where  the  claim  of  the  prior  attaching 
creditor  is  for  a  bona  fide  debt  without 
tinge  of  fraud,  an  objection  to  the  attach- 
ment proceedings,  on  the  ground  of  the 
impropriety  of  the  affidavit  for  the  attach- 
ment, can  be  successfully  made  only  by  the 
defendant  in  the  attachment  suit.  Shea  v. 
Johnson,  101  Cal.  455;  35  Pac.  1023. 

Discharge  or  release  of  attachment. 
Attachment  is  not  of  the  nature  of  a  com- 
mon-law distress  of  the  defendant's  prop- 
erty, to  be  held  until  he  pays  the  plaintiff's 
demand;  but  it  is  held  in  order  that  it 
may  be  subject  to  execution;  and  when 
that  purpose  is  impossible  of  accomplish- 
ment, the  right  to  hold  the  property  for 
that  purpose  ceases.  Myers  v.  Mott,  29 
Cal.  359;  89  Am.  Dec.  49.  An  attaching 
creditor  may  voluntarily  release  the  prop- 
erty attached,  and  such  release  may  be 
made  without  the  sanction  of  the  court:  a 
mere  direction  to  the  sheriff  is  sufficient 
(Smith  v.  Robinson,  64  Cal.  387;  1  Pac. 
353);  and  the  sheriff  may  exact  the  exe- 
cution of  an  undertaking  as  a  condition 
of  such  release,  and  the  release  will  be  a 
sufficient  consideration  for  the  undertak- 
ing; or  the  attaching  creditor  may  ratify 
the  act  of  the  sheriff,  after  a  release,  and 
thereby  validate  his  act.    Hegser  v.   Row- 


§537 


ATTACHMENT. 


538 


ley,  139  Cal.  410;  73  Pae.  156.  The  death 
of  the  defendant  releases  the  lien  of  the 
attachment,  if  the  case  is  such  that  execu- 
tion cannot  issue  legally  after  his  death. 
Myers  v.  Mott,  29  Cal.  359;  89  Am.  Dec. 
49;  Hensley  v.  Morgan,  47  Cal.  622;  Ham 
V.  Cunningham,  50  Cal.  365;  Ham  v.  Hen- 
derson, 50  Cal.  367;  Day  v.  Superior  Court, 
61  Cal.  489.  A  collateral  attack  on  an 
attachment  can  be  maintained,  only  for 
causes  which  render  the  writ  absolutely 
void,  and  not  merely  voidable.  Mudge  v. 
Steinhart,  78  Cal.  34;  12  Am.  St.  Eep.  17; 
20Pac.  147. 

Discharge  of  attachment  by  insolvency 
or  bankruptcy  proceedings.  The  dissolu- 
tion of  an  attachment  may  be  effected  by 
voluntary  proceedings  in  insolvency.  Baum 
V.  Eaphael,  57  Cal.  361.  The  discharge 
of  the  lien  by  insolvency  proceedings, 
wherein  the  defendant  is  adjudicated  an 
insolvent  debtor,  takes  place  only  where 
the  express  statutory  provision  declares 
that  the  proceeding  in  insolvency  shall 
have  that  effect.  Vermont  Marble  Co.  v. 
Superior  Court,  99  Cal.  579;  34  Pac.  326; 
Hefner  v.  Herron,  117  Cal.  473;  49  Pae. 
586;  Elliott  v.  Warfield,  122  Cal.  632;  55 
Pac.  409.  Under  the  insolvency  act  of 
1852  and  the  supplementary  act  of  1876, 
an  attachment  levied  within  two  months 
prior  to  the  commencement  of  the  insol- 
vency proceedings  was  dissolved  thereby. 
Cerf  V.  Oaks,  59  Cal.  132.  Under  the  in- 
solvency act  of  1880,  an  adjudication  of 
insolvency  dissolved,  by  operation  of  law, 
any  attachment  made  within  one  month 
next  preceding  the  commencement  of  the 
insolvency  proceedings  (Vermont  Marble 
Co.  V.  Superior  Court,  99  Cal.  579;  34  Pae. 
326;  Elliott  v.  Warfield,  122  Cal.  632;  55 
Pac.  409) ;  and  no  order  of  release  of  the 
attachment  was  necessary.  Wilhoit  v.  Cun- 
ningham, 87  Cal.  453;  25  Pac.  675.  The 
insolvency  act  of  1895  also  provided  for 
the  dissolution  of  an  attachment  levied 
within  one  month  prior  to  the  commence- 
ment of  insolvency  proceedings.  Hefner 
V.  Herron,  117  Cal.  473;  49  Pac.  586.  The 
property  acquired  by  a  bankrupt  after 
the  commencement  of  insolvency  proceed- 
ings forms  no  part  of  the  estate  in  bank- 
ruptcy; and  the  assignee  acquires  title 
only  to  such  property  as  the  insolvent 
owned  at  the  time  of  the  commencement 
of  the  insolvency  proceedings.  Day  v.  Su- 
perior Court,  61  Cal.  489.  The  dismissal 
of  insolvency  proceedings  does  not  revive 
the  lien  of  a  dissolved  attachment.  Wil- 
hoit v.  Cunningham,  87  Cal.  453;  25  Pac. 
675.  Notice  of  an  order  staying  proceed- 
ings against  an  insolvent  debtor  need  not 
be  served  on  the  crerlitor  or  officer,  to  give 
it  effect  and  prevent  the  attachment. 
Taffts  v.  Manlovo,  14  Cal.  47;  73  Am.  Dec. 
610.  An  adjudication  of  bankruptcy, 
under  the  act  of  Congress  of  1898,  dis- 
solves an  attachment  levied  within  four 
months  prior  to  the  Cling  of  the  petition. 


if  the  creditor  causing  the  levy  had  rea- 
sonable cause  to  believe  the  debtor  in- 
solvent. Alexander  v.  Wilson,  144  Cal.  5; 
77  Pac.  706.  Bankruptcy  proceedings,  in- 
stituted more  than  four  months  after  the 
levy  of  an  attachment,  do  not'deprive  the 
attaching  creditor  of  the  right  to  subject 
the  attached  property  to  the  satisfaction 
of  his  debt.  HoUaday  v.  Hare,  69  Cal.  515; 
11  Pac.  28. 

Judgment  in  attachment  suits.  The 
court,  in  rendering  judgment  in  an  action 
in  which  an  attachment  has  been  procured 
and  served,  has  no  duty  to  perform  in 
reference  to  the  attachment  proceedings; 
nor  does  the  sheriff  act  in  obedience  to 
the  judgment,  but  to  the  behests  of  the 
statute,  in  enforcing  the  lien  of  the  at- 
tachment by  a  sale  of  the  property  at- 
tached. Myers  v.  Mott,  29  Cal.  259;  89 
Am.  Dec.  49;  Allender  v.  Fritts,  24  Cal. 
447.  Where  the  defendant  in  an  attach- 
ment suit  dies  after  the  levy  of  the  writ, 
but  before  judgment,  and  his  administra- 
tor is  substituted,  and  the  case  continued 
against  him,  judgment  cannot  be  rendered 
enforcing  the  attachment  lien  by  ordering 
the  sale  of  the  attached  property  to  satisfy 
the  demand.  Myers  v.  Mott, -29  Cal.  359; 
89  Am.  Dec.  49;  Bank  of  Stockton  v.  How- 
land,  42  Cal.  129. 

Merger  in  judgment  lien.  The  lien  of 
the  attachment  becomes  merged  in  that 
of  the  judgment,  and  has  no  effect  there- 
after, except  to  confer  a  priority  in  the 
lien  of  the  judgment;  and  where  there  are 
several  attachments,  this  priority  is  main- 
tained and  enforced  under  the  judgments; 
the  attachment  lien,  as  to  its  amount,  de- 
pends upon  the  ex  parte  statement  of  the 
plaintiff,  while  that  of  the  judgment  is 
certain;  the  lien  of  the  latter  is  of  a 
higher  order,  if  it  is  possible  that  there 
can  be  different  ranks  among  the  liens; 
the  law  does  not  contemplate  the  existence, 
at  the  same  time,  of  two  distinct  liens, 
arising  by  operation  of  law  in  one  action, 
for  the  security  of  one  demand.  Bagley  v. 
Ward,  37  Cal.  121;  99  Am.  Dec.  256; 
Scrivener  v.  Dietz,  68  Cal.  1;  8  Pac.  609; 
Anderson  v.  Goff,  72  Cal.  65;  1  Am.  St. 
Eep.  34;  13  Pac.  73.  But  the  lien  of  the 
attachment  is  not  merged  in  the  judgment 
until  the  latter  becomes  a  lien;  and  if 
the  judgment  is  not  docketed  so  as  to  be- 
come a  lien,  the  lien  of  the  attachment 
still  remains  upon  the  property.  Wein- 
reich  v.  Hensley,  121  Cal.  647;  54  Pac.  254. 
Though  merged  in  the  judgment,  the  at- 
tachment lien  still  exists  so  as  to  confer 
a  priority  in  the  lien  of  the  judgment, 
and  this  result  is  attained,  in  an  indirect 
way,  by  applying  the  doctrine  of  relation 
to  the  series  of  acts  necessary  to  be  done 
to  transfer  title  to  the  property  attached; 
and  a  sheriff's  deed,  executed  in  pursuance 
of  an  execution  sale,  under  a  judgment  ren- 
dered in  an  attachment  suit,  takes  effect 
from  the  levy   of  the  attachment.    Porter 


539 


MALICE — ACTIONS,  PLEADINGS  IN — STATUTE   RUNS  WHEN. 


§537 


V.  Pico,  55  Cal.  1C5.  Tlio  mere  recovery  of 
judgment  and  issuance  of  execution  will 
not,  in  case  of  a  garuishnient  in  an  attaidi- 
ment  suit,  without  a  recei])t  by  the  shorilf 
of  the  property,  or  an  actual  levy  of  the 
-execution,  create  any  additional  lien  upon 
the  fund  garnished,  nor  convert  the  at- 
tachment lien  into  a  lieu  under  final 
process.  Howe  v.  Union  Ins.  Co.,  42  Cal. 
528;  Fed.  Gas.  No.  G776.  The  lien  of  the 
attachment  does  not  revive  upon  the  ex- 
piration of  the  two  years'  lien  of  the  judg- 
ment. Bagley  v.  Ward,  37  Cal.  121;  99 
Am.  Dec.  256.  The  purpose  of  the  attach- 
ment is  to  hold  the  property  of  the  de- 
fendant as  security  for  such  judgment  as 
may  be  rendered  in  the  action  (Bagley  v. 
Ward,  37  Cal.  121;  99  Am.  Dec.  25(3;  Lehn- 
hardt  v.  Jennings,  119  Cal.  192;  48  Pac. 
56);  and  the  lien  can  be  enforced  only 
by  sale  under  execution.  Myers  v.  Mott, 
:29  Cal.  359;  89  Am.  Dec.  49. 

Action  for  maliciously  suing  out  writ. 
An  action  may  be  maintained  for  the 
malicious  prosecution  of  the  writ,  or  for 
the  taking  and  detention  of  the  property; 
and  greater  damages  may  be  recovered  in 
the  former  form  of  action  than  in  the 
latter.  McCusker  v.  Walker,  77  Cal.  208; 
19  Pac.  382.  Where  the  writ  was  a  mere 
incident  in  an  action  for  the  prosecution 
•of  an  unfounded  claim,  the  use  made  of 
the  writ  aggravates  the  damages  result- 
ing from  the  prosecution  of  such  action. 
Berson  v.  Ewing,  84  Cal.  89;  23  Pac.  1112. 
An  attachment  for  damages  resulting  from 
negligence  is  a  gross  abuse  of  the  process. 
-Griswold  v.  Sharpe,  2  Cal.  17.  An  attach- 
ment for  a  debt  secured  by  mortgage 
subjects  the  plaintiff,  who  has  knowledge 
of  such  security,  to  liability  for  malicious 
prosecution.  Kinsey  v.  Wallace,  36  Cal. 
462.  But  the  issue  of  an  attachment,  and 
a  levy  of  the  same  on  goods,  where  there 
is  a  legal  cause  of  action  existing,  is  not 
such  a  duress  of  goods  as  to  give  a  cause 
of  action  for  damages  in  favor  of  the  one 
"whose  goods  are  seized.  Kohler  v.  Wells 
Fargo  &  Co.,  26  Cal.  606.  Where  the 
plaintiff  commenced  suit  and  attached  be- 
fore the  debt  became  due,  and  thus  pre- 
vented the  defendant  from  fulfilling  his 
part  of  the  contract,  damages  for  abuse  of 
the  process  may  be  claimed  by  cross- 
complaint.  Waugenheim  v.  Graham,  39 
Cal.  169.  Actual  and  exemplary  damages 
may  be  awarded,  but  they  should  not  be 
unreasonably  or  disproportionately  large. 
Kinsey  v.  Wallace,  36  Cal.  462.  Where  a 
person,  having  a  good  cause  of  action 
against  another,  willfully  sues  for  a 
greater  amount  than  is  due,  and  attaches 
the  property  of  the  other,  and  puts  him  to 
charges,  he  is  liable.  Weaver  v.  Page,  6 
Cal.  681;  Clark  v.  Nordholt,  121  Cal.  26; 
53  Pac.  400.  A  nominal  plaintiff  is  liable, 
■where  he  gives  his  confederate  uncondi- 
tional permission  to  use  his  name  in 
"bringing    suits,    and    the    evidence    shows 


the  prosecution  to  have  been  malicious  on 
the  part  of  his  confederate:  ignorance  of 
the  facts  in  a  particular  suit  cannot  ex- 
cuse su(di  nominal  plaintiff.  Kinsey  v. 
Wallace,  36  Cal.  462. 

Pleadings  in  action  for  maliciously  suing 
out  writ.  Ajit  words,  used  to  describe  a 
cause  of  action  for  malicious  prosecution, 
rather  than  an  action  for  the  unlawful  tak- 
ing and  detention  of  propert}',  must  be  pre- 
sumed to  have  been  used  by  design,  upon 
the  election  of  the  plaintiff  to  maintain  his 
suit.  McCusker  v.  Walker,  77  Cal.  2U8;  19 
Pac.  382.  The  complaint  must  allege  that 
the  writ  w-as  sued  out  and  prosecuted  with- 
out probable  cause.  King  v.  Montgomery, 
50  Cal.  115.  Where,  in  an  action  for  the 
malicious  prosecution  of  an  attachment 
against  the  plaintiff  by  the  defendant,  in 
the  name  of  another,  the  complaint  alleges, 
in  stating  what  the  defendant  did  in  the 
issuing  and  levying  of  the  writ,  that  the  de- 
fendant and  another  filed  their  undertaking, 
conditioned  to  pay  all  the  costs  and  dam- 
ages that  the  plaintiff  might  sustain,  the 
gravamen  of  the  complaint  is  the  malicious 
prosecution,  and  the  allegations  with  re- 
gard to  the  umlertaking  cannot  be  con- 
strued as  constituting  a  separate  cause  of 
action.  Sharp  v.  Miller,  54  Cal.  329.  In 
order  to  entitle  a  plaintiff  to  recover  in 
an  action  for  the  malicious  prosecution  of 
the  writ,  he  must  allege  and  prove  that 
the  writ  was  executed  by  attaching  the 
property:  the  mere  malicious  suing  out  of 
such  a  writ  without  probable  cause,  with- 
out levying  it  upon  the  property  of  the 
party  against  whom  it  is  issued,  does  not 
authorize  a  recoverv.  Maskell  v.  Barker, 
99  Cal.  642;  .34  Pac.  340.  An  allegation 
that  the  judgment  in  an  attachment  suit 
was  rendered  and  entered  in  favor  of  the 
defendant,  is  sufficient,  without  alleging 
further,  that  the  judgment  w^as  in  full 
force  and  effect,  and  not  vacated,  set 
aside,  reversed,  or  appealed  from.  Carter 
v.  Paige,  80  Cal.  390;  22  Pac.  188. 

Statute  of  limitations.  The  statute  of 
limitations  begins  to  run  against  a  claim  for 
damages  for  maliciously  procuring  the  levy  of 
an  attachment,  at  the  time  of  the  levy;  the 
period  of  limitation  being  two  years  (Sharp 
V.  Miller,  54  Cal.  329;  57  Cal.  431;  McCusker 
V.  Walker,  77  Cal.  208;  19  Pac.  382;  and 
see  Wood  v.  Currev,  57  Cal.  208;  Tavlor 
V.  Bidwell,  {io  Cal.^489;  4  Pac.  491);  "but 
the  statute  does  not  begin  to  run  against 
a  claim  for  damages  for  the  malicious 
prosecution  of  a  civil  action  upon  an  un- 
founded claim,  until  the  action  is  termi- 
nated, although  an  attachment  may  have 
issued  in  the  action.  Berson  v.  Ewing,  84 
Cal.  89;  23  Pac.  1112. 

Priority  of  foreign  assignment  over  subsequent 
domestic  judgment.    .Sie  note  17  L.  K.  A.  8"). 

Determination  of  status  by  residence  of  debtor 
in  case  of  foreign  attachment.  See  note  17  L.  R.  A. 
87. 

What  is  non-residence  for  the  purpose  of  at- 
tachment.   See  note  19  L.  R.  A.   665. 


§538 


ATTACHMENT. 


540 


Eight  of  possession  as  between  receiver  and 
creditor  levying  attachment  on  property.  See  note 
20  L.  R.   A.   392. 

Bight  of  attachment  as  affected  by  appoint- 
ment of  foreign  receiver.    See  note  23  L.  R.  A.  52. 

Priority  between  assignee  for  creditors  and  at- 
taching creditors.    See  note  26  L.   K.   A.   593. 

Effect  as  against  attachment  of  pledge  or  other 
transfer  of  corporate  stock  not  made  in  books  of 
company.    See  note  67  L.  K.  A.   tiolj. 

When  non-residence  of  person  intending  to 
leave  permanently  begins.  See  note  ILKA 
(X.  S.)     77^. 

Waiver  of  lien  of  chattel  mortgage  by  attach- 
ment.   See  note  24  L.  K.  A.    (N.   S. ;   49u. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. The  proceedings  by  attachment  are  statu- 
tory and  special,  and  must  be  strictly  pursued. 
When  a  party  relies  upon  his  attachment  lien  as 
a  remedy,  he  must  strictly  follow  the  provisions 
of  the  statute.  Roberts  &  Co.  v.  Landecker,  9 
pal.  262.  The  remedy  is  given  only  in  cases  of 
indebtedness  arising  upon  contract.  Griswold  v. 
Sharp,  2  Cal.  17;  Dulton  v.  Shelton.  3  Cal.  206. 
The  remedy  is  not  a  distinct  proceeding  in  the 
nature  of  an  action  in  rem,  but  is  auxiliary  to 
an  action  at  law,  designed  to  secure  the  payment 
of  any  judgment  the  plaintiff  may  obtain.  Low 
V.  Adams,  6  Cal.  277.  An  attachment  issued  on 
a  complaint  which  was  a  printed  form,  with  the 
blanks  filled  up  by  the  clerk  at  the  request  of 
plaintiff,  but  no  name  was  signed  to  the  com- 
plaint till  next  day,  and  after  other  attachment 
on  the  same  property,  when  it  was  signed  by  the 
clerk,  with  the  name  of  plaintiff's  attorney.  It 
was  held,  that  the  action  of  the  clerk,  though  not 
correct,  was  only  an  irregularity,  and  the  com- 
plaint was  not  void.  Dixey  v.  Pollock,  8  Cal. 
570.  An  attachment,  regular  upon  its  face,  is 
not  void  because  the  complaint  does  not  state  a 
cause  of  action  warranting  the  issuance  of  an 
attachment.  McComb  v.  Reed,  28  Cal.  281;  87 
Am.  Dec.  115.  An  attachment  issued  before  the 
issuance  of  the  summons  is  void.  Low  v.  Henry, 
9  Cal.  538.  Where  G.  &  Co.,  concealing  their 
insolvency,  obtained  an  extension  from  their 
creditor  B.,  and,  before  the  maturity  of  the  notes 
B..  apprehending  that  G.  &  Co.  would  fail,  and 
that  the  other  creditors  of  G.  &  Co.  would  ex- 
haust their  assets  by  attachment,  obtained,  by 
an  arrangement  with  G.  &  Co.,  an  antedated  note 
for  the  amount  due  him  at  the  date  thereof  by 
G.  &  Co.,  on  which  suit  was  commenced  by  at- 
tachment, and  a  levy  made  upon  the  property  of 
G.  &  Co.  Held,  that  B.'s  attachment  and  claim 
was  valid  against  the  subsequent  attaching  credi- 
tors, the  case  not  being  one  of  fraud.  Brewster 
V.  Bours,  8  Cal.  501.  Where  goods  were  fraudu- 
lently purchased  by  an  insolvent,  the  creditor  may 
attach  before  the  maturity  of  the  debt.  Patrick 
V.  Montader,  13  Cal.  434.  An  attachment  is- 
sued upon  a  debt  not  due  is  void  as  against 
creditors  whose  rights  are  affected  by  it.  Pat- 
rick V.  Montader,  13  Cal.  434,  cited  supra,  goes 
upon  the  ground  that  the  debt  UT3on  which  the 
attachment  issued  was  equitably  due,  and  hence 
does  not  conflict  with  this  rule.  Davis  v.  Eppin- 
eer,  18  Cal.  378;  79  Am.  Dec.  184.  A  creditor 
having  a  lien  by  attachment  only,  may  file  a 
creditor's  bill.  Conroy  v.  Woods,  13  Cal.  626; 
73  Am.  Dec.  605. 

2.  When  an  attachment  cannot  issue.  If  the 
debt  is  secured  by  a  vendor's  lien,  an  attachment 
cannot  issue.  Hill  v.  Grigsby,  32  Cal.  55.  But 
a  vendor's  lien  for  the  unpaid  purchase-monev  of 
a  tract  of  land,  where  the  land  has  been  con- 
veyed  by   the   vendee   to   a    third   party,   is   not    a 


lien  securing  the  debt  within  the  meaning  of  the 
terms  used  in  §  120  of  the  Practice  Act  (Code, 
§  537).  Porter  v.  Brooks,  35  Cal.  199.  An  at- 
tachment will  not  lie  when  the  debt  is  secured 
by  mortgage.  Kinsey  v.  Wallace,  36  Cal.  463. 
The  term  "mortgage"  is  used  in  its  most  gen- 
eral signification,  and  includes  a  pledge  of  per- 
sonal property.  Payne  v.  Bensley,  8  Cal.  260: 
68   Am.  Dec.   318. 

3.  Partnership,  attachment  affected  by.  An  at- 
tachment cannot  be  sued  out  by  one  partner- 
against  another  for  any  matter  touching  the  part- 
nership aft'airs.  Wheeler  v.  Farmer,  38  Cal.  203. 
The  commencement  of  an  action  by  one  partner, 
against  his  copartners,  for  a  dissolution  and  ac- 
count, and  for  an  injunction  and  receiver,  and  aa 
appointment  of  a  receiver  by  the  court,  does  not 
prevent  a  creditor  from  proceeding  by  attach- 
ment and  gaining  a  priority  over  other  creditors, 
until  a  final  decree  of  dissolution  and  order  of 
distribution.  Adams  v.  Woods,  9  Cal.  24.  Where 
one  partner  buys  out  his  copartners,  agreeing  to 
pay  the  debts  of  the  firm,  the  partnership  re- 
mains bound  for  firm  debts,  and  the  lien  of  firm 
creditors  attaching  is  perferred  to  the  lien  of  an 
individual  creditor  of  the  remaining  creditor  at- 
taching first.  Conroy  v.  Woods,  13  Cal.  626:  7a 
Am.  Dec.   605. 

Where  two  shareholders  in  a  joint-stock  com- 
pany sold  to  the  company  goods  to  a  large  amount, 
and  afterwards,  during  the  existence  of  the  com- 
pany, sold  their  stock  to  A.,  and  assigned  their 
account  for  such  goods  to  B.,  who  sued  such 
company  on  said  account  by  attachment,  it  was 
held,  that  the  action  could  not  be  maintained, 
there  having  been  no  final  settlement,  no  balance 
struck,  and  no  express  promise  on  the  part  of  the 
individual  members  to  pay  their  ascertained  por- 
tion. Bullard  v.  Kinney,  10  Cal.  60.  The  credi- 
tor of  an  individual  partner  obtains,  by  an 
attachment  of  the  partner's  interest,  no  lien  but 
what  is  subject  to  the  general  lien  of  partners 
and  creditors.  Robinson  v.  Tevis,  38  Cal.  611. 
An  attachment  against  V.  may  be  levied  on  his 
interest  in  grain,  and  to  effect  this  the  sheriff 
may  take  possession  of  the  entire  quantity  of 
grain;  but  he  can  sell,  under  the  execution  on 
the  judgment  that  may  be  recovered  in  the  ac- 
tion, only  the  undivided  interest  of  V.,  the  pur- 
chaser at  the  sale  becoming  tenant  in  common 
with  the  other  part-owners.  Bernal  v.  Hovious, 
17  Cal.   541;    79   Am.  Dec.   147. 

4.  Stoppage  in  transitu.  Attachment  as  af- 
fected by.  The  right  of  stoppage  in  transitu  is 
paramount  to  any  lien  by  attachment,  and  may  be 
exercised  to  defeat  such  lien  by  the  creditor  of 
the  vendee.    Blackman  v.  Pierce,  23  Cal.  508. 

5.  Priority  of  attachments.  Patrick  v.  Mon- 
tader, 13  Cal.  434;  Spever  v.  Ihmels.  21  Cal. 
280;  81  Am.  Dec.  157.  The  writ  affects  per- 
sonal propertv  from  the  time  of  the  lew  only. 
Taffts  V.  Maniove.  14  Cal.  47;  73  Am.  De'c.  610. 
In  McComb  v.  Reed,  28  Cal.  281,  87  Dec.  115, 
where  two  attachments  had  been  levied  on  the 
same  property,  it  was  questioned  whether  a  junior 
attaching  creditor  could  successfully  attack  the 
validity  of  the  first  attachment,  on  the  ground 
that  the  complaint  did  not  contain  a  cause  of 
action  upon  a  contract,  e.xpress  or  implied,  for 
the  direct  payment  of  money.  A  junior  attach- 
ing creditor  cannot  avail  himself,  in  the  affidavit 
or  undertaking,  of  a  prior  attaching  creditor. 
Fridenberg  v.  Pierson,  18  Cal.  152;  79  Am.  Dec. 
162. 

6.  The  judgment  in  an  attachment  suit  need 
not  direct  the  sale  of  the  property  held  under  the 
attachment:  it  is  the  duty  of  the  sheriff  to  sell 
it.    Low  V.  Henry,   9   Cal.  538. 


§  538.  Affidavit  for  attachment,  what  to  contain.  The  clerk  of  the  court 
mu.st  issue  the  writ  of  attachment,  upon  receiving  an  affidavit  by  or  on  be- 
half of  plaintiff,  showing: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount 
of  such  indebtedness  over  and  above  all  legal  set-offs  or  counterclaims)  upon 
a  contract,  expres.s  or  implied,  for  the  direct  payment  of  money,  and  that 
such  contract  was  made  or  is  payable  in  this  state,  and  that  the  payment  of" 


541 


AFFIDAVIT  TO  CONTAIN  WHAT — WRIT,   ISSUANCE  OP. 


§538 


the  same  has  not  been  secured  by  any  mortj,'age  or  lien  upon  real  or  per- 
sonal property,  or  any  pletlLje  of  personal  property,  or,  if  orij?inally  so 
secured,  that  such  security  has,  without  any  act  of  the  plaintiff,  or  the  per- 
son to  whom  the  security  was  j^iven,  become  valueless;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifyin<^  the  amount 
of  such  indebtedness  over  and  above  all  legal  set-offs  or  counterclaims)  and 
that  the  defendant  is  a  non-resident  of  the  state ;  or, 

'S.  That  plaintiff's  cause  of  action  against  defendant  is  one  to  recover  a 
sum  of  money  as  damages  (specifying  the  amount  thereof)  arising  from  an 
injury  to  property  in  this  state  in  consequence  of  the  negligence,  fraud,  or 
other  wrongful  act  of  defendant,  and  that  the  defendant  is  a  non-resident 
of  the  state ;  and 

4.  That  the  attachment  is  not  sought,  and  the  action  is  not  prosecuted,  to 
hinder,  delay,  or  defraud  any  creditor  of  the  defendant. 

undertaking  (McCusker  v.  Walker,  77  Cal. 
208;  19  Pac.  382);  but  he  is  uot  authorized 
to  issue  the  writ,  where  there  is  no  state- 
ment in  the  affidavit  of  the  facts  plainly 
required  by  the  statute  to  be  set  forth 
therein'.  Merchants'  Nat.  Union  v.  Buis- 
seret,  15  Cal.  App.  444;  115  Pac.  58.  The 
clerk  must  proceed  with  reasonable  dili- 
gence to  make  up  and  deliver  to  the  plain- 
tiff the  i)rocess  applied  for,  on  proper 
presentation  of  the  papers;  and  he  must 
issue  the  attachments  in  the  order  in 
which  they  are  demanded,  and  his  failure 
to  do  so  is  actionable;  but  he  is  not  bound 
to  delay  the  issuing  of  other  writs  against 
the  same  party,  if  the  party  making  the 
prior  demand  is  uot  in  attendance  to  re- 
ceive his  writs  when  ready  for  delivery, 
who  thus,  through  his  own  negligence  or 
misfortune,  loses  his  prioritv.  Lick  v. 
Madden,  36  Cal.  208;  95  Am.  Dec.  175. 
Several  writs  may  be  issued  upon  a  single 
affidavit  and  undertaking  to  different 
counties.  Martinovich  v.  Marsicano,  150 
Cal.  597;  119  Am.  St.  Rep.  254;  89  Pac. 
333.  The  affidavit  and  all  the  papers 
requisite  to  a  writ  of  attachment  may  be 
prepared  at  the  same  time  the  complaint 
is  prepared,  so  long  as  the  affidavit  and 
the  undertaking  in  the  attachment  are  not 
filed  in  adNance  of  the  original  complaint, 
and  the  writ  not  issued  in  advance  of  the 
summons,  to  which  it  is  incident.  Wheeler 
v.  Farmer,  38  Cal.  203.  The  prepayment 
of  fees  is  not  necessary  upon  the  issuance 
of  the  writ,  unless  they  are  demanded  by 
the  clerk.  Lick  v.  Madden,  25  Cal.  202. 
A  defenilant,  who  files  a  cross-complaint, 
may  have  an  attachment  against  the 
money  and  property  in  controversy,  still 
held  by  the  plaintiff.  Interlocking  Stone 
Co.  v.  Scribner,  19  Cal.  App.  344;  126  Pac. 
178. 

The  affidavit.  It  is  not  necessary  that 
the  re(iuircd  affidavit  be  signed  by  the 
party  making  it;  but  the  oath  may  not 
be  taken  out  of  the  county,  over  the  tele- 
phone: such  an  affidavit  is  a  nullity,  and 
the    attachment    issued    thereon    is    void. 


Levy  without  process,  a  misdemeanor.  See 
Pen.  Code,  §  IKi. 

Fact  of  issuing  attachment  not  to  be  made 
J)UbliC.     See    Pol.  Code,  §  1032. 

Afladavit.    Post,  §  557. 

Legislation  §  538.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  121,  as  amended  by 
Stats.  1860,  p.  301,  which  read:  "The  clerk  of 
the  court  shall  issue  the  writ  of  attachment  upon 
receiving  an  affidavit  by,  or  on  behalf  of,  the 
plaintiff,  which  shall  be  filed,  showing:  1.  That 
the  defendant  is  indebted  to  the  plaintiff  (specify- 
ing the  amount  of  such  indebtedness,  over  and 
above  all  legal  setoffs  and  counterclaims),  upon 
a  contract,  express  or  implied,  for  the  direct  pay- 
ment of  money,  and  that  such  contract  was  made 
-or  is  payable  in  this  state,  and  that  the  payment 
of  the  same  has  not  been  secured  by  any  mort- 
gage, lien,  or  pledge,  upon  real  or  personal  prop- 
erty; or,  2.  That  the  defendant  is  indebted  to 
the  plaintiff  (specifying  the  amount  of  such  in- 
debtedness as  near  as  may  be,  over  and  above  all 
legal  set-offs  or  counterclaims),  and  that  the  de- 
fendant is  a  non-resident  of  the  state ;  and,  3. 
That  the  sum  for  which  the  attachment  is  asked 
is  an  actual,  bona  fide  existing  debt,  due  and 
owing  from  the  defendant  to  the  plaintiff,  and 
that  the  attachment  is  not  sought  and  the  action 
is  not  prosecuted  to  hinder,  delay,  or  defraud, 
any  creditor  or  creditors  of  the  defendant." 
When  enacted  in  1872,  (1)  in  the  introductory 
paragraph,  (a)  the  word  "shall"  was  changed  to 
"must,"  (b)  the  word  "the"  was  omitted  before 
"plaintiff,"  and  (c)  the  words  "which  shall  be 
filed,"  after  "plaintiff,"  were  omitted;  (2)  in 
subd.  1,  the  word  "and,"  after  "set-offs,"  was 
changed  to  "or";  (3)  in  subd.  3,  the  comma  was 
omitted  after  the  word   "actual." 

2.  Amended  by  Code  Amdts.  1873-74.  p.  307, 
(1)     in     the     introductory    paragraph,     adding    a 

■comma  after  the  word  "attachment"  ;  (2)  in  subd. 
1,  (a)  omitting  the  comma  after  the  word  "in- 
debtedness," (b)  adding,  before  the  word  "lien," 
the  word  "or,"  and  omitting,  after  "lien,"  the 
words  "or  pledge,"  (c)  changing  the  word  "and," 
before  "personal  property,"  to  "or,"  and  adding, 
after  these  words,  the  clauses,  "or  any  pledge  of 
personal  property,  or,  if  orijrinally  so  secured, 
that  such  security  has,  without  any  act  of  the 
plaintiff,  or  the  person  to  whom  the  security  was 
given,  become  valueless;  or";  (3)  in  subd.  2. 
striking  out  the  words  "as  near  as  may  be,"  after 
"indebtedness";  (4)  changing  subd.  3  to  read 
as  subd.  4  now  reads. 

3.  Amendment  by  Stats.  1901,  p.  139;  un- 
■constitutional.      See  note  ante,  §  5. 

4.  Amended    by  Stats.  1905,  p.  434. 

Issuance  of  the  writ.  The  issuance  of 
the  writ  is  not  a  judicial  proceeding,  but 
&  ministerial  act  ujjon  the  jiart  of  the 
clerk,  which  he  is  bound  to  j)erform  upon 
the    filing   of    the    statutory    affidavit    and 


§538 


ATTACHMENT. 


542- 


Fairbanks  v.  Getehell,  13  Cal.  App.  458; 
110  Pac.  331. 

Allegations  of  facts  in  affidavit.  The 
facts  required  by  the  statute  must  be  truly 
stated  in  the  affidavit;  and  it  is  immate- 
rial that  the  omitted  facts  are  stated  in 
the  complaint  (Fisk  v.  French,  114  Cal. 
400;  46  Pac.  161);  but  the  affidavit  need 
not  necessarily  have  all  the  facts  set  out 
in  respect  to  the  contract,  which  are  neces- 
sary to  be  stated  in  the  complaint. 
Weaver  v.  Hayward,  41  Cal.  117.  It  is 
not  necessary  for  the  affidavit  to  state  the 
probative  facts  requisite  to  establish  the 
ultimate  facts  required  by  the  statute  to 
be  shov^'u  as  the  basis  of  the  writ  (Wheeler 
V.  Farmer,  38  Cal.  203) ;  nor  is  the  same 
particularity  of  statement  required  in  the 
affidavit  for  the  issuance  of  the  writ  as 
is  required  in  the  complaint.  Bank  of  Cali- 
fornia V.  Boyd,  86  Cal.  386;  25  Pac.  20; 
O'Conor  v.  Roark,  108  Cal.  173;  41  Pac. 
465;  O'Conor  v.  Witherby,  112  Cal.  38;  44 
Pac.  340.  The  affidavit 'is  fatally  defect- 
ive unless  it  states  that  the  attachment  is 
not  sought  and  the  action  is  not"  prose- 
cuted to  hinder,  delay,  or  defraud  any 
creditor  of  the  defendant,  or  either  of 
them,  when  there  are  more  than  one. 
P^jaro  Valley  Bank  v.  Scurich,  7  Cal.  App. 
732;  95  Pac.  911.  The  falsity  of  the  affi- 
davit can  be  raised  only  by  the  defendant 
in  the  attachment  suit  (Shea  v.  Johnson, 
101  Cal.  455;  35  Pac.  1023);  and  its  regu- 
larity cannot  be  attached  collaterally  by  a 
stranger  to  the  suit.  Scrivener  v.  Dietz, 
68  Cal.  1;  S  Pac.  609. 

Affidavit,  by  whom  made.  An  affidavit, 
made  by  a  business  agent  of  the  plaintiff, 
need  not  aver  that  he  is  an  agent  for  the 
collection  of  the  debt,  that  he  makes  it  in 
behalf  of  the  plaintiff,  or  that  the  facts 
are  peculiarly  within  his  knowledge  or 
that  there  is  any  reason  why  the  plaintiff' 
does  not  make  it.  Simpson  v.  McCartv,  78 
Cal.  175;  12  Am.  St.  Eep.  37;  20  Pac' 406. 
Where  the  plaintiff  sets  out  his  representa- 
tive capacit}"  in  the  title  of  the  action  at 
the  head  of  the  affidavit,  but  in  the  body 
thereof  he  refers  to  himself  as  "the  plain- 
tiff in  the  above-entitled  action,"  and  also 
states  that  "the  defendant  in  said  action 
is  indebted  to  him,"  the  pronoun  "him" 
referring  to  himself,  there  is  a  sufficient 
compliance  with  the  requirements  of  the 
section:  and  the  use  of  the  conjunction 
"and,"  instead  of  the  statutory  disjunctive 
"or,"  in  the  phrase,  "over  and  above  all 
legal  set-offs  or  counterclaims,"  does  not 
constitute  insufficiencv.  O'Conor  v.  Roark, 
108  Cal.  173;  41  Pac.  465;  O'Conor  v. 
Witherby,  112  Cal.  38;  44  Pac.  340.  Where 
the  facts  are  stated  positively  and  without 
qualification  in  the  affidavit,  it  will  be 
presumed  that  they  are  within  the  knowl- 
edge of  the  affiant.  Simjison  v.  McCarty, 
78  Cal.  175;  12  Am.  St.  Rep.  37;  20  Pac. 
406. 

Contract  for  direct  payment  of  money. 
It  is  not  necessary  that  the  affidavit  shall 


state  whether  the  contract  is  express  or 
implied :  it  is  sufficient  if  it  appears  there- 
from that  there  is  an  indebtedness  arising 
on  contract  for  the  direct  payment  of 
money.  Flagg  v.  Dare,  107  Cal.  482;  40 
Pac.  804;  Norcross  v.  Nunan,  61  Cal.  640; 
Simpson  v.  McCarty,  78  Cal.  175;  12  Am. 
St.  Rep.  37;  20  Pac.  406.  An  affidavit  in 
the  alternative  form,  that  the  indebted- 
ness is  upon  an  express  or  implied  con- 
tract, is  insufficient.  Hawley  v.  Delmas,  4 
Cal.  195.  The  indebtedness  is  the  princi- 
pal element  required  in  the  affidavit,  and 
when  that  appears  by  a  direct  statement,, 
the  affidavit  is  sufficient,  when  there  is 
nothing  therein  inconsistent  with  the 
statement.  Bank  of  California  v.  Boyd,  86 
Cal.  386;  25  Pac.  20;  Flagg  v.  Dare,  107 
Cal.  482;  40  Pac.  804;  O'Conor  v.  Roark,. 
108  Cal.  173;  41  Pac.  465;  O'Conor  v. 
Witherby,  112  Cal.  38;  44  Pac.  340. 

Amount  of  Indebtedness.  The  amount 
of  the  indebtedness  to  the  plaintiff  is  the 
principal  and  all-important  element  in  the 
affidavit  (Finch  v.  McVean,  6  Cal.  App. 
272;  91  Pac.  1019);  and  it  must  be  shown 
by  the  affidavit;  and  it  may  be  so  shown,, 
although  it  does  not  appear  from  the  con- 
tract itself,  and  is  not  specially  stated  in, 
the  complaint.  Dunn  v.  Mackey,  80  Cal. 
104;  22  Pac.  64.  The  amount  of  the 
demand,  in  the  statement,  need  not  be 
identically  the  same  as  the  sum  stated  in 
the  complaint;  set-offs  and  counterclaims 
must  be  stated  in  the  affidavit,  but  they 
need  not  be  stated  in  the  complaint.  De 
Leonis  v.  Etchepare,  120  Cal.  407;  52  Pac. 
718.  An  affidavit  directly  alleging  a 
specific  indebtedness  in  a  principal  sum  is- 
not  vitiated  by  referring  to  interest  and 
attorneys'  fees,  without  further  specifica- 
tion, but  is  sufficient  to  sustain  the  at- 
tachment, at  least  to  the  extent  of  the 
principal  sum.  Tibbet  v.  Tom  Sue,  122  Cal. 
206;  54  Pac.  741.  Where  the  principal  and 
legal  interest  were  demanded  in  the  com- 
plaint, and  the  nature  of  the  indebtedness 
is  so  sufficiently  stated  in  the  affidavit  as 
to  show  that  it  draws  legal  interest  from 
the  date  of  its  maturity,  there  is  no  sub- 
stantial difference  between  the  affidavit 
and  complaint  in  respect  to  interest. 
O'Conor  v.  Roark,  108  Cal.  173;  41  Pac. 
465;  O'Conor  v.  Witherby,  112  Cal.  38;  44- 
Pac.  340.  The  affidavit  may  be  for  any 
definite  sum  alleged  in  the  complaint  to 
be  due,  notwithstanding  the  prayer  also 
demands  a  further  sum  (De  Leonis  v. 
Etchepare,  120  Cal.  407;  52  Pac.  718);  and 
it  may  be  for  such  portion  of  the  amount 
claimed  in  the  complaint  as  the  plaintiff  is 
able  to  specify  as  indebtedness  for  which 
the  law  authorizes  an  attachment.  Bald- 
win V.  Nai)a  etc.  Wine  Co.,  137  Cal.  646; 
70  Pac.  732. 

Claim  must  be  unsecured.  An  affidavit 
as  to  a  resident,  which  fails  to  state  that 
the  payment  of  the  claim  has  not  been 
secured  as  required  by  the  first  subdivision, 
of   this   section,   is   insufficient    (Sparks   v.- 


543 


DISCHARGE  OF  WRIT — UNDERTAKING EXCEPTIONS. 


§530 


Bell,  137  Cal.  415;  70  Pac.  281;  Scrivener 
V.  Dietz,  G8  Cal.  1;  8  Pac.  609);  as  is  also 
an  affidavit  in  the  alternative,  stating,  in 
substance,  that  the  p;i\ment  of  the  indchl- 
edness  has  not  been  snciircil,  or  if  secured, 
that  such  security  ha  >  become  valueless, 
as  it  does  not  state  th;'t  no  security  was 
ever  given,  but  merely  vhat  the  same  had 
become  valueless.  Wilke  v.  Cohn,  54  Cal. 
212;  Merced  Bank  v.  Morton,  58  Cal.  360; 
Harvey  v.  Foster,  64  Cal.  296;  30  Pac.  849; 
Winters  v.  Pearson,  72  Cal.  553;  14  Pac. 
304.  An  affidavit  stating  the  general  con- 
clusion that  the  mortgage  given  to  secure 
the  indebtedness  has  become  valueless,  is 
sufficient  to  justify  the  clerk  in  issuing 
the  writ.  Barbieri  v.  Ramelli,  84  Cal.  174; 
24  Pac.  113.  The  use,  in  the  affidavit,  of 
the  word  "upon,"  instead  of  "of,"  in  the 
statutory  phrase,  "jjledge  of  personal  pro])- 
ertv,"  is  immaterial.  O'Conor  v.  Withcrby, 
112  Cal.  3,S;  44  Pac.  340. 

Against  a  non-resident.  An  affidavit 
for  attachment  against  a  non-rosident 
need  not  state  that  the  pa^'ment  of  the 
claim  is  not  secured  by  mortgage,  litii;  or 
pledge,  or  that  the  claim  is  upon  a  con- 
tract: that  the  action  is  upon  a  contract, 
express  or  implied,  need  only  appear  from 
the  complaint  in  the  action  (Kohler  v. 
Agassiz,  99  Cal.  9;  33  Pac.  741);  and 
where  it  is  stated  that  the  indebtedness  is 
upon  an  express  contract,  the  affidavit  is 
sufficient  in  that  respect  (Hale  Bros.  v. 
Milliken,  142  Cal.  134;  75  Pac.  653);  but 
an  averment  in  the  affidavit,  respecting 
the  residence  of  the  defendant,  is  not  con- 
elusive:  the  fact  mav  be  inquire<l  into. 
Sparks  v.  Bell,  137  Cal.  415;   70  Pac.  281. 

Discharge  of  the  writ.  The  court  must, 
upon  proper  application,  discharge  a  writ 
of  attachment  wrongful)}'  issued  under 
this  section.  Jensen  v.  Dorr,  157  Cal.  437; 
108   Pac.   320.     Before   the   amendment   in 


1909  of  §  5.j8,  the  affidavit  was  not  amend- 
able at  the  time  of  the  hearing  of  the 
motion  to  discharge  the  attachment  be- 
cause of  a  defect  in  the  affi<lavit.  Winters 
V.  Pearson,  72  Cal.  55;5;   14  Pac.  304. 

Variauce  in  proceedings  to  obtain  attachmeuta. 
Soe  iiotf   107  Aiu.  SI.   K.|).  Hi)4. 

Variance  in  statomeut  of  claim  between  affi- 
davit for  attachmeat  and  declaration.  See  iioia 
3   Ann.    Cas.    i.--i;. 

Effect  on  aftiUavit  for  attachment  of  statement 
of  grounds  in  alleiuative  or  disjuuctivc.  See 
niiti-s   11   Ann.  (a.-.   'J  7  ;   20   Ann.   ('as.   .'j7(j. 

Requisites   of   adidavit  for  foreign  attachment. 

Si  I-   note    17   L.   l;.   A.    88. 

Amendment  of  affidavit  for  attachment.  See 
notf  :!1   L.  i:.  A.  4'J-J. 

Affidavit  for  attachment  by  agent  or  corporate 
officer.     Ste  note   14  L.  K.  A.    (N.   S.)    1120. 

CODE  COMMISSIONERS'  NOTE.     1.  Order  ia 

which  clerk  must  issue.  The  clerk  of  the  dis- 
trict cuurt  must  issue  the  writs  in  the  order  la 
which  they  are  demanded;  but  if  the  party  who 
makes  the  first  demand  is  not  in  attendance  to 
receive  his  writ  when  completed,  the  clerk  is 
not  bound  in  the  mean  time  to  delay  the  issuing; 
of  other  writs  against  the  same  party.  When  he 
has  prepared  for  delivery  the  writ  first  demanded, 
he  is  bound  to  issue  the  writ  of  the  next  comer; 
and  if  in  such  case  the  next  comer  is  not  there 
to  receive  his  writ,  and  for  that  reason  the  next 
comer  first  delivers  his  writ  to  the  sheriff,  and 
by  that  means  ac(|uires  a  priority,  and  the  first 
comer  loses  his  debt,  the  clerk  is  not  Iiat)le. 
Lick  V.  Madden,  36  Cal.  208;  95  Am.  Dec.  175; 
see  also  Lick  v.   Madden,  2.">   Cal.  205. 

2.  Form  of  affidavit.  The  omission  from  the- 
affidavit  to  a  statement  that  the  sum  for  which 
the  writ  is  a.skod  is  "an  actual  bona  fide  existing 
debt,  due  and  owing  from  the  defendant  to  the 
plaintiff,  and  that  the  attachment  is  not  soupht 
and  the  action  is  not  prosecuted  to  hinder,  de- 
lay, or  defraud  any  creditor  or  creditors  of  the 
debtor,"  does  not  render  the  attachment  issued 
a  nullity  against  subsequent  attaching  creditors. 
Fridenberg  v.  Pierson,  18  Cal.  152;  79  Am.  Dec. 
162.  An  affidavit  for  attachment  is  insufficient 
which  states  that  the  defendant  is  indebted  to 
the  plaintiff  upon  an  "express  or  implied  con- 
tract."    Hawlcy  v.  Dolmas,   4  Cal.   195. 

3.  Who  may  take  advantage  of  defects  in  affi- 
davit. See  subd.  2  of  note  to  the  preceding  sec- 
tion. 

4.  Express  contract.  An  undertaking  on  ap- 
peal is  an  express  contract.  Hathaway  v.  Davis, 
.S3  Cal.  161. 


§  539.    Undertaking   on   attachment.     Exceptions    to    sureties.     Before 

issuin*?  the  writ,  the  clerk  mnst  require  a  written  undertaking  on  the  part  of 
the  plaintiff,  in  the  sum  not  less  than  two  hundred  dollars  and  not  exceed- 
ing the  amount  claimed  by  the  plaintiff,  with  sufficient  sureties,  to  the  effect 
that  if  the  defendant  recovers  judgment,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant  and  all  damages  which  he  may  sustain 
by  reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the  under- 
taking, and  that  if  the  attachment  is  discharged  on  the  ground  that  the 
plaintiff  was  not  entitled  thereto  under  section  five  hundred  and  thirty- 
seven,  the  plaintiff  will  pay  all  damages  which  the  defendant  may  have  sus- 
tained by  reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the 
undertaking.  At  any  time  after  the  issuing  of  the  attachment,  but  not  later 
than  five  days  after  actual  notice  of  the  levy  thereof,  the  defendant  may 
except  to  the  sufficiency  of  the  sureties.  If  he  fails  to  do  so,  he  is  deemed 
to  have  w^aived  all  objections  to  them.  When  excepted  to,  the  plaintiff's 
sureties,  upon  notice  to  the  defendant  of  not  less  than  two  nor  more  than 
five  days,  must  justify  before  a  judge  or  county  clerk  in  the  same  manner  as 


§539 


ATTACHMENT. 


544 


upon  bail  on  arrest ;  and  upon  failure  to  justify,  or  if  others  in  their  place 
fail  to  justify,  at  the  time  and  place  appointed,  the  judge  or  clerk  must  issue 
an  order  vacating  the  writ  of  attachment. 


Undertaking,   generally.    Post,  §  1057. 
Sureties.  ,  ^    c  -ck 

1.  Justification  of.    Ante,  §  49.";;   post,  §  o55. 

2.  Qualifications   of.     Post,  §  1057. 
Undertaking    to    discharge    attachment.     Post, 

Counter-undertaking  to  prevent  levy.  Post, 
§  540. 

Dismissal  of  action  on.  Clerk  to  hand  under- 
taking to  defendant.    Post,  §  581,  subd.  1. 

Legislation  g  539.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  122,  as  amended  by 
Stats.  1860,  p.  301,  which  read:  "Btfore  issuing 
the  writ,  the  clerk  shall  require  a  written  under- 
taking on  the  part  of  the  plaintiff,  in  a  sum  not 
less  than  two  hundred  dollars,  not  exceeding  the 
amount  claimed  by  the  plaintiff,  with  sufficient 
sureties,  to  the  effect  that  if  the  defendant  re- 
cover judgment,  the  plaintiff  will  pay  all  costs 
that  may  be  awarded  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  speeded  in 
the  undertaking."  When  enacted  in  1872,  (1) 
the  word  ••ehall"  was  changed  to  "must,"  and  (2)^ 
the  word  "and"  was  added  before  "not  exceeding. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  308 
(approved  March  24,  1874),  (1)  changing  the 
words  "a  sum"  to  "an  amount,"  (2)  changing 
the  word  "two"  to  "three,"  before  "hundred  dol- 
lars," (3)  omitting  the  words  "if  the  defendant 
recover  judgment,"  after  "effect  that,"  (4)  add- 
ing the  words  "including  reasonable  attorneys' 
fees,"  after  "all  costs,"  (5)  changing  the  word 
"awarded"  to  "adjudged,"  and  (6)  adding  the 
words  "if  the  attachment  be  wrongfully  issued' 
at  the  end  of  the  section. 

3.  Amended  again  by  Code  Amdts.  1873-74, 
p.  406  (approved  March  30,  1874),  to  read: 
"Before  issuing  the  writ,  the  clerk  must  require 
a  written  undertaking  on  the  part  of  the  plaintiff, 
in  a  sum  not  less  than  two  hundred  dollars,  and 
not  exceeding  the  amount  claimed  by  the  plain- 
tiff, with  sufficient  sureties,  to  the  effect  that  if 
the  defendant  recover  judgment,  the  plaintiff  will 
pay  all  costs  that  may  be  awarded  to  the  defend- 
ant, and  all  damages  which  he  may  sustain  by 
reason  of  the  attachment,  not  exc.  eding  the  sum 
specified  in  the  undertaking.  Within  five  days 
:ifter  service  of  the  summons  in  the  action,  the 
defendant  may  except  to  the  sufficiency  of  the 
sureties.  If  he  fails  to  do  so  he  is  deemed  to 
have  waived  all  objections  to  them.  When  ex- 
cepted to,  the  plaintiff's  sureties,  upon  notice  to 
the  defendant  of  not  less  than  two  nor  more 
than  five  days,  must  justify  before  a  judge  or 
county  clerk,  in  the  same  manner  as  upon  bail 
on  arrest;  and  upon  failure  to  justify,  or  if  others 
in  their  place  fail  to  justify  at  the  time  and  place 
appointed,  the  clerk  or  judge  shall  issue  an  order 
vacating  the  writ  of  attachment." 

4.  Amendment  by  Stats.  1901,  p.  139;  un- 
constitutional.     See  note  ante,  §  5. 

5.  Amended  by  Stats.  1907,  p.  708;  the  code 
commissioner  saying,  "The  amendment  makes  the 
sureties  answerable  if  the  attachment  is  dis- 
charged on  the  ground  that  the  plaintiff  was  not 
entitled  thereto  under  §  537,  and  permits  the  de- 
fendant to  except  to  the  sufficiency  of  the  sure- 
ties at  any  time  after  the  issuing  of  the  attach- 
mert  not  later  than  five  days  after  actual  notice 
of  the  levy." 

The  undertaking.  A  writ  of  attachment 
is  iniprofierly  i.ssued,  and  voiil,  unless  it  is 
supported  by  an  undertaking  conforming 
substantially  to  the  requirements  of  the 
statute.  Kern  Valley  Bank  v.  Koehn.  1.57 
Cal.  237;  107  Pac.  111.  The  undertaking 
is  an  original,  independent  contract  on 
the  part  of  the  sureties,  and  must  be  con- 
strued in  connection  with  the  statute 
authorizing  it   (Fraukel   v.   Stern,   44   Cal. 


168) ;   and  it  is  the  antecedent  of  the  at- 
tachment,   and   accompanies   the    affidavit, 
which  must  be  made  before  the  writ  is  is- 
sued; and  if  no  writ  is  issued,  the  under- 
taking is  null  fnd  void.    Benedict  v.  Bray, 
2    Cal.    251;    56   Am.    Dec.   332.     The   code 
does    not    require    the    undertaking    to    be 
executed,  in   form,   to   the   defendant,  but 
specifies  the    conditions    it    shall  contain; 
and  an  undertaking  executed  to  the  state 
of    California   may    be    sued    upon    by    the 
defendants,    who    are    the    real    parties    in 
interest.    Taaffe   v.   Eosenthal,   7   Cal.   514. 
The   amount   of   the   undertaking   is   based 
upon  the  amount  specified  in  the  affidavit, 
and  not  upon  the  amount  demanded  in  the 
complaint  (Baldwin  v.  Napa  etc.  Wine  Co., 
137  Cal.  646;  70  Pac.  732);  and  where  it  is 
in  a  larger  sum   than  that  required,   it  is 
not  objectionable.    Wigmore  v.  Buell,   122 
Cal.   144;   54  Pac.   600.     The  question  pre- 
sented on  a  motion  to  increase  the  amount 
of  the  undertaking  is  one  of  fact,  calling 
for     the     exercise     of    judicial     discretion, 
which  cannot  be  controlled  by  mandamus. 
American  Well  etc.  Co.  v.  Superior  Court, 
19  Cal.  App.  497;  126  Pac.  497.     An  under- 
taking is  fatally  defective,  where  it  fails 
to    contain    the    required    stipulation    con- 
cerning  the   discharge   of   the  attachment. 
Kern  Valley  Bank  v.  Koehn,  157  Cal.  237; 
107  Pac.  111.     The  undertaking  must  show 
that   the   sureties   are   either   householders 
or  freeholders;  and  a  writ  issued  upon  an 
undertaking,    unaccompanied    by     the    re- 
quired affidavit,  is  irregularly  and  improp- 
erly issued,  and  should  be  discharged  upon 
application.    Tibbet  v.  Tom   Sue,   122   Cal. 
206;    54    Pac.    741.     An    undertaking    exe- 
cuted after  the  lev}-  of  the  writ,  and  the 
dismissal  of  the  attachment  by  the  plain- 
tiff, is  void.    Benedict  v.  Bray,  2  Cal.  251; 
56  Am.  Dec.  332.     Where,  in  an  undertak- 
ing,   the    word    "thousand"    was    omitted 
from   the   words   "two   thousand   two   hun- 
dred and  twenty-five  dollars,"  and  it  was 
apparent  from  the  whole  undertaking  and 
the  statute  that  the  omitted  word  was  in- 
tended  to  be   inserted,   it  will   be   supplied 
at  the   trial,  without   reforming   the   bond. 
Frankel  v.  Stern,  44  Cal.  168.     A  bond  ex- 
acted by  an  officer  having  no  authority  to 
require  it,  is  void.   Benedict  v.  Bray,  2  Cal. 
251;  56  Am.  Dec.  332. 

State,  county,  or  city,  not  reciuired  to 
give  undertaking.  An  undertaking  given 
to  procure  an  attachment  upon  the  suit  of 
the  state,  or  any  county  or  city,  is  in  con- 
travention of  the  policy  of  law,  without 
consiileration,  and  void,  both  as  a  statu- 
tory undertaking  and  a  common-law  bond 
(Morgan  v.  Menzies,  60  Cal.  341);  and  an 
attachment  for  a  license  tax  due  to  a 
county  may  be  issued  without  an  under-, 
taking,  in  an  action  by  the  county  to  col- 


545 


SURETIES — LIABILITY,   ETC.,   OF — VOID   LEVY. 


§539 


li'ct  the  same.  San  Luis  Ohispo  County  v. 
UrecnlHTf,'-,    liiU   (  ;il.   ilOd;    ."):J    I'ac.   7i)7. 

Amendment  of  undertaking.  Before  the 
amendment  in  1909  of  §  ."j5S,  neither  au  un- 
(lertakinjj  nor  an  aflidavit  was  amendable, 
if  not  sullicient  to  sustain  tlie  writ.  Tihbet 
V.  Tom  Sue,  122  Cal.  2(IG;  .")4  Pac.  741. 

Liability  of  sureties  for  wrongful  at- 
tachment. The  liMl)ility  of  the  sureties  is 
limited  by  the  terms  and  conditions  of 
their  contract,  and  cannot  be  e.xtendetl  by 
implication  bevond  its  terms  (EMer  v. 
Kutner,  97  Cal.' 490;  32  Pac.  .563;  Ilisler  v. 
Carr,  34  Cal.  641);  and  thwigh  they  are 
not  liable  for  damages  caused  by  the  care- 
lessness of  the  sheriff,  yet  they  are  liable 
for  the  amount  of  the  depreciation  in 
value  of  the  jiroperty  by  reason  of  the  at- 
tachment, exclusive  of  any  damage  caused 
by  the  willful  and  negligent  acts  of  the 
sheriff  (Witherspoon  v.  Cross,  135  Cal.  96; 
67  Pac.  18);  but  they  are  not  liable  as 
trespassers  for  seizure  or  detention  of 
proj>erty  attached  by  a  sheriff,  merely  be- 
cause of  their  act  in  signing  the  bond. 
McDonald  v.  Fett,  49  Cal.  33  I.  The  meas- 
ure of  damages  in  an  action  upon  an 
undertaking  is  the  amount  which  will  com- 
pensate for  all  detriment  caused  proxi- 
mately thereby,  or  which  would  be  liable 
to  result  therefrom;  but  sureties  do  not 
undertake  to  become  liable  for  remote  and 
possible  consequences,  which,  in  some  con- 
tingencies, might  follow.  Elder  v.  Kutner, 
97  Cal.  490;  32  Pac.  563.  The  measure  of 
damages  for  the  wrongful  seizure  and 
detention  of  personal  property  by  attach- 
ment is  the  market  value  of  the  use  of  the 
property  during  the  time  of  the  detention, 
not  its  value  to  the  plaintiff.  Hurd  v. 
Barnhart,  53  Cal.  97.  Damages  may  be 
awarded  for  the  depreciation  in  the  value 
of  goods  during  the  time  they  are  held 
under  attachment,  estimated  upon  a  show- 
ing of  their  value  when  taken  and  their 
value  when  returned.  Frankel  v.  Stern, 
44  Cal.  168;  Witherspoon  v.  Cross,  135 
Cal.  96;  67  Pac.  18.  The  measure  of  dam- 
ages, in  case  of  attachment  of  personal 
property,  is  the  difference  in  value  of  the 
property  when  seized  and  its  value  when 
restored,  with  the  loss  of  its  use  mean- 
while; and  there  is  more  reason  for  ap- 
plying such  rule  respecting  the  measure 
of  damages  in  the  case  of  an  attachment 
of  stock,  whose  principal  value  consists  in 
its  selling  value,  than  in  the  case  of  per- 
sonal property  generally:  not  only  is  the 
selling  value  destroyed  by  the  attarh- 
ment,  but  all  of  the  profits  and  dividends 
to  accrue  from  it  are  impouiuled  e<]ually 
with  the  stock  itself.  McCarthv  Co.  v. 
Boothe,  2  Cal.  Ayip.  170;  83  Pac.  175. 
The  impairment  of  the  plaintiff's  credit, 
his  inability  to  sell  the  land  levied  upon, 
or  to  contract  a  loan  upon  the  security  of 
the  land,  are  not  proximate,  but  remote, 
consequences  of  the  attachment.  Heath  v. 
Lent,  1  Cal.  410;  Elder  v.  Kutner,  97  Cal. 
1  Fair. — 35 


490;  32  Pac.  563.  Damages  accruing  from 
a  wrongful  attachment  of  real  estate, 
where  the  owner's  i)ossessioii  was  not  dis- 
turbed, cannot  be  more  than  nominal. 
Heath  V.  Lent,  1  Cal.  410.  The  questions  of 
motive  and  jirobable  cause  are  immaterial 
in  au  action  against  the  sureties  on  an 
undertaking;  and  the  fact  that  the  at- 
tachment was  malicious  does  not  affect 
their  liability.  Ebler  v.  Kutner,  97  Cal. 
490;  32  Pac.  5G3.  Counsel  fees  pai.l  in 
defending  an  attachment  suit  constitute 
l)art  of  the  damages,  where  the  writ  is  im- 
j>ro]>erly  i)rosecuted  (Ah  Thaie  v.  Quan 
Wan,  3  Cal.  216);  but  the  sureties  are  not 
liable  for  attorneys'  fees  in  an  attachment 
suit,  if  such  fees  have  not  been  actually 
paid:  the  damage  accrues  from  the  pay- 
ment, and  not  from  incurring  the  liability 
to  pay.  Elder  v.  Kutner,  97  Cal.  490;  32 
Pac.  563.  Fees  paid  to  a  sheriff  to  procure 
the  release  of  a  lien  of  attachment  are 
included  in  the  damages  covere<l  by  the 
undertaking.  Perrin  v.  McMann,  97  Cal. 
52;  31   Pac.  837. 

Action  on  undertaking.  The  defendant 
whose  ]iroi»erty  has  been  seized  is  the  only 
one  who  can  sue  upon  the  bond:  a  co- 
defendant  whose  property  was  not  seized 
should  not  be  joined  as  plaintiff.  Heath 
V.  Lent,  1  Cal.  410.  The  right  of  the  at- 
tachment defendant  to  give  a  bond  and 
secure  the  possession  of  the  property,  and 
thereby  avoiil  damages  consequent  upon 
detention  thereof,  is  no  defense  to  the 
sureties  on  the  attachment  bond.  Mc- 
Carthv V.  Boothe,  2  Cal.  App.  170;  83  Pac. 
175. 

Exception  to  sufficiency  of  sureties. 
Excepting  to  the  sufficiency  of  sureties 
upon  an  undertaking  is  not  an  appearance 
in  the  action  wherein  the  attachment  is 
issued.  Salmonson  v.  Streiffer,  13  Cal. 
App.    395;    110    Pac.    144. 

Justification  of  sureties.  A  defendant 
waives  the  justification  of  sureties  upon 
an  undertaking,  where  he  fails  to  ex- 
amine them  as  to  their  sufficiency.  La 
Dow  V.  National  Bldg.  etc.  Co.,  11  Cal. 
App.  308;    104  Pac.   838. 

Effect  of  void  levy.  A  void  levy  of  an 
attachment  does  not  create  a  lien,  nor  does 
it  bar  a  subsequent  attachment.  Kern 
A^alley  Bank  v.  Koehn,  157  Cal.  237;  107 
Pac.   111. 

CODE       COMMISSIONERS'       NOTE.      1.   The 

undertaking.  'J'lie  undertaking  should  precede 
tlie  writ.  Benedict  v.  ]lray,  2  Cal.  251  ;  56  Am. 
Dec.  332.  Il  is  good  if  made  payable  to  the 
people  of  the  state  of  Califurnia,  instead  of  to 
the  defendant.  Tnaffe  v.  Rosenthal,  7  Cal.  514. 
A  mistake  in  the  recital  of  the  amount  for  which 
the  attachment  is  lo  be  issued  may  be  explained 
and  corrected  by  parol.  Palmer  v.  Vance,  13  Cal. 
550.  In  Hisler  v.  Carr,  34  Cal.  641,  it  was  held 
that  an  undertaking  p;iven  on  issuing  an  attach- 
ment from  a  justice's  court,  to  the  effect  that 
plaintiff  would  pay  all  costs,  etc.,  and  damages 
that  the  defendant  might  sustain  by  reason  ol 
the  attachment,  "not  exceeding  one  hundred  dol- 
lars." was  bad,  and  rendered  the  attachment 
void:  but  the  code  changes  the  rule.  See  §867 
of   this   code. 


§5-40 


ATTACHMENT. 


546 


as  obligors,  unless,  at  the  time  of  executinR  the 
bond,  he  declared  he  would  not  be  bound  with- 
out such  sisnatures  were  obtained.  Sacramento 
V.  Dunlap,  14  Cal.  421.  The  recitals  in  statu- 
tory undertakings  are  conclusive  of  the  facts 
stated.  McMillan  v.  Dana,  18  Cal.  339.  In  an 
action  on  an  undertaking  on  attachment  against 
the  property  of  a  debtor,  who  was  a  merchant, 
where  the  sheriff  had  levied  on  no  property  ex- 
cept real  estate,  it  was  held  that  evidence  as  to 
the  general  effect  of  an  attachment  upon  the 
credit  and  reputation  of  merchants  was  inad- 
missible, on  the  ground  that  damages  resulting 
therefrom  are  too  remote  and  contingent.  And  it 
was  held,  further,  that  counsel  fees  paid  bv  the 
attachment  debtor  in  the  defense  of  the  attacn- 
ment  suit  were  not  recoverable,  and  that  the  dis- 
trict judge  erred  in  refusing,  when  requested,  to 
instruct  the  .iury  to  that  effect,  after  having  ad- 
mitted evidence  of  the  amount  of  such  counsel 
fees.    Heath   v.  Lent,   1  Cal.  410. 


2.  Who  may  take  advantage  of  defects  in 
undertaking.  See  subd.  2  of  note  to  §  537  of 
this  code. 

3.  Amendments  to  undertakings.  The  under- 
taking may  be  amended  and  made  sufficient  after 
suit  commenced,  or  after  a  motion  to  vacate  at- 
tachment, made  upon  the  ground  that  it  is  de- 
fective.    Kissam  v.  Marshall.   10  Abb.  Pr.  424. 

4.  Action  on  the  undertaking.  The  "recov- 
ery of  judgment"  means  a  final  judgment.  Ben- 
nett V.  Brown.  20  N.  Y.  99;  31  Barb.  158.  If 
the  undertaking  is  void,  there  can  be  no  recovery 
on  it.  Benedict  v.  Bray.  2  Cal.  251;  56  Am. 
Dec.  332.  No  recovery  can  be  had  on  a  bond 
purporting  to  be  the  joint  bond  of  the  principal 
and  sureties,  but  signed  by  the  sureties  only; 
but  it  is  otherwise  as  to  undertakings,  under  our 
system.  They  are  original  and  independent  eon- 
tracts  on  the  part  of  the  sureties,  and  do  not 
require  the  sisnature  of  the  principal.  So,  also, 
as  to  joint  and  several  bonds;  each  surety  is 
bound  without  the  signatures  of  the  others  named 

§  540.  Writ,  to  whom  directed  and  what  to  state.  The  writ  must  be  di- 
rected to  the  sheriff  of  any  county  in  which  property  of  such  defendant  may 
be.  and  must  require  him  to  attach  and  safely  keep  all  the  property  of  such 
defendant  within  his  county,  not  exempt  from  execution,  or  so  much  thereof 
as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount  of  which 
must  be  stated  in  conformity  with  the  complaint,  unless  the  defendant  give 
him  security  by  the  undertaking  of  at  least  two  sufficient  sureties,  in  an 
amount  sufficient  to  satisfy  such  demand,  besides  costs,  or  in  an  amount 
equal  to  the  value  of  the  property  which  has  been,  or  is  about  to  be,  at- 
tached ;  in  which  ease,  to  take  such  undertaking.  Several  writs  may  be 
issued  at  the  same  time  to  the  sheriffs  of  different  counties. 

that  there  is  no  room  left  for  construc- 
tion or  speculation  (Kennedy  v.  California 
Sav.  Bank,  97  Cal.  93;  33  Am.  St.  Kep. 
163;  31  Pac.  846);  but  it  does  not  follow, 
because  an  attachment  cannot  rightfully 
issue  for  more  than  is  demanded  in  the 
complaint,  that  it  may  not  properly  issue 
for  less.  De  Leonis  v.  Etchepare,  120  Cal. 
407;  52  Pac.  718;  Tibbet  v.  Tom  Sue,  122 
Cal.  206;  54  Pac.  741;  Hale  Bros.  v.  Milli- 
ken,  142  Cal.  134;  75  Pac.  653.  The  pro- 
vision that  the  amount  of  the  demand 
must  be  stated  in  conformity  with  the 
complaint,  is  to  be  construed  as  limited 
to  a  complaint  upon  a  cause  of  action 
for  which  a  writ  of  attachment  is  author- 
ized: this  section  does  not  declare  that 
the  amount  of  the  demand  shall  be  the 
same  as  the  amount  asked  for  by  the 
plaintiff  in  the  prayer  of  his  complaint; 
and  by  holding  that  the  demand  stated 
in  the  writ  must  be  in  conformity  with 
the  complaint,  so  far  as  its  allegations 
authorize  the  writ  of  attachment,  full  ef- 
fect is  given  to  all  the  provisions  of  the 
several  sections  upon  this  subject.  Bald- 
win V.  Napa  etc.  Wine  Co.,  137  Cal.  646; 
70  Pac.  732.  A  writ,  in  an  action  against 
a  corporation  and  its  stockholders,  which 
merely  states  the  amount  of  the  indebted- 
ness claimed  to  be  due  from  the  corpora- 
tion, without  specifying  the  amount  for 
which  each  of  the  stockholders  is  claimed 
to  be  liable,  is  irregular  as  to  such  stock- 
holders, and  should  be  discharged  on  mo- 
tion.    Kennedy    v.    California    Sav.    Bank, 


Writ,  seal  necessary  to.    Ante,  §  153,   subd.  1. 
Sheriff. 

1.  Duties    of.    Excused  only  by  written  di- 
rections.   Pol.  Code,  §  4166. 

2.  When    must    show    process.      Pol.    Code, 
§  4169. 

Exemptions  from  execution.    Post,  §  690. 
Bond  for  release  after  appearance.    Post,  §  555. 

Legislation  8  540.  Enacted  March  11,  1873; 
based  on  Practice  Act.  §  123,  as  amended  bv 
Stats.  I860,  p..  315,  which  (1)  had  the  word 
"shall"  instead  of  "must,"  before  "be  directed," 
(2)  did  not  have  the  word  "must"  before  "re- 
quire him."  and  (8)  had  the  word  "shall"  in- 
stead of  "must,"  before  "be  stated." 

The  demand  stated  in  the  writ.  The  de- 
mand referred  to  in  this  section  is  that 
stated  in  the  aflSdavit  upon  which  the 
writ  is  sought,  not  the  amount  in  the 
complaint  for  which  the  plaintiff  asks 
judgment;  the  basis  for  the  writ  is  the 
affidavit,  and  the  clerk  must  look  to  that 
alone  to  determine  the  amount  for  which 
the  sheriff  is  to  levy  under  the  writ,  as 
well  as  the  amount  for  which  the  under- 
taking is  to  be  given.  Baldwin  v.  Napa 
etc.  Wine  Co.,  137  Cal.  646;  70  Pac.  732; 
Finch  v.  McVean,  6  Cal.  App.  272;  91  Pac. 
1019.  The  plaintiff  may  file  an  unverified 
complaint  in  a  larger  amount  than  he 
would  be  willing  to  support  upon  oath; 
but  he  is  entitled  to  a  writ  for  only  the 
amount  in  which  he  can  "specify"  in  the 
affidavit  that  the  defendant  is  "indebted" 
to  him.  Baldwin  v.  Napa  etc.  Wine  Co., 
137  Cal.  646;  70  Pac.  732.  The  provision 
of  this  section,  that  the  amount  of  the 
demand  must  be  stated  in  the  writ  in 
conformity  with  the  conijilaint,  is  so  plain 


547 


UNDERTAKING — TO   PREVENT,   TO   RELEASE,    ATTACHMENT. 


§540 


97  Cal.  93;  33  Am.  St.  Rep.  1G3;  31  Pac 
846.  Where  the  conifjlaint  demands  cer- 
tain specific  sums  which  the  allofjationa 
Bhow  to  be  due  from  the  defendant  to 
the  plaintiff,  and  also  certain  other  sums 
which  are  properly  part  of  the  sheriff's 
costs  in  keeping  the  attached  proi)erty, 
the  writ  is  in  sufficient  conformity  with 
the  complaint  if  it  states  the  demand  to 
"be  the  amount  which  is  properlv  due  to 
the  plaintiff.  Wigmore  v.  Bucll,'  122  C'al. 
144;  54  Pac.  600.  An  attachment  that  re- 
quires the  taking  of  more  of  a  defendant's 
property  than  is  required  to  secure  the  in- 
debtedness stated  in  the  affidavit  cannot 
be  sustained.  Finch  v.  McVean,  6  Cal. 
App.  272;  91  Pac.  1019.  If  the  value  of 
the  property  was  uncertain  at  the  time 
of  attachment,  it  does  not  necessarily  fol- 
low that  the  attachment  was  excessive 
because  its  value  was  subsequently  as- 
certained to  be  greatly  in  excess  of  the 
demand  sued  for.  Sexey  v.  Adkison,  40 
Cal.  408.  The  words  "or  thereabouts,"  in 
the  writ,  following  the  specific  statement 
of  the  amount  of  the  demand,  do  not 
render  the  attachment  proceedings  void 
upon  a  collateral  attack.  Davis  v.  Baker, 
88  Cal.  106;  25  Pac.  1108.  Damage  caused 
by  an  excessive  levy  cannot  be  set  up  by 
the  defendant  by  way  of  cross-complaint 
in  the  attachment  suit.  .Jeffreys  v.  Han- 
cock, 57  Cal.  646.  The  validity  of  a  writ, 
regular  on  its  face,  cannot  be  collaterally 
attacked  for  irregularities  in  the  proceed- 
ings upon  which  it  is  based.  Scrivener  v. 
Dietz,   68   Cal.    1 ;    8   Pac.   609. 

Writs  to  different  counties.  Writs  of 
attachment  to  different  counties  may  be 
issued  at  different  times  on  the  same  affi- 
davit and  bond,  provided  they  are  issued 
within  a  reasonable  time  after  the  making 
and  filing  of  the  affidavit.  Martinovich  v. 
Marsicano,  150  Cal.  597;  119  Am.  St.  Rep. 
2.34;  89  Pac.  333.  What  is  meant  by  delay 
for  an  "unreasonable  time,"  is  such  delay 
as  would,  under  the  circumstances,  cast 
suspicion  on  the  verity  of  the  affidavit,  or 
lead  to  the  supposition  that  the  grounds 
stated  for  the  attachment  had  ceased  to 
exist.    Id. 

Undertaking  to  prevent  attachment. 
The  provision  of  this  section,  that  the 
plaintiff  may  have  the  defendant's  pro]v 
erty  attached  unless  he  gives  security  to 
pay  the  judgment,  means  that  the  jdaiu- 
tiff  cannot  have  the  property  attached  if 
the  required  security  is  given  by  a  bond 
to  prevent  the  attachment:  the  bond  is 
not  given  alone  for  the  personal  protection 
of  the  sheriff,  but  also  to  the  defendant 
to  protect  his  property  from  attachment, 
and  to  the  plaintiff  to  secure  the  payment 
of  any  judgment  that  may  be  rendered. 
Ayres  v.'  Burr.  1.^2  Cal.  12.5;  64  Pac.  120. 
The  act  of  a  sheriff  in  refraining  from  en- 
forcing the  writ,  or  from  attemptitig  to 
make  the  levy,  is  a  sufficient  considera- 
tion for  the  giving  of  the  boi»d  to  him  to 


jirevent  the  levy.  Fresno  Home  Packing 
Co.  V.  Hannon.  16  Cal.  App.  284;  116  Pac 
6.S7.  The  uiiilertaking  is  in  favor  of  the 
j)laintiff  in  the  action,  although  it  runs 
in  the  name  of  the  sheriff:  the  plaintiff  is 
the  real  j)arty  in  interest,  an<l  he  may  sue 
upon  it  as  such.  Curiae  v.  Packard,  29 
Cal.  194.  A  succeeding  sheriff,  having  the 
custody  of  the  bond  given  to  his  jiredeces- 
sor  to  prevent  the  levy,  is  justified  in  re- 
fusing to  execute  a  second  writ,  issued  by 
the  clerk  after  reversal  of  the  judgment 
upon  appeal.  .'Xvres  v.  Burr,  132  Cal.  125; 
64  Pac.  120.  l"f  the  sheriff  takes  a  sufli- 
cient  statutory  undertaking,  his  duty  in 
the  premises  is  discharged,  and  he  is  not 
further  responsible  in  the  matter.  Curiae 
V.  Packard,  29  Cal.  194.  It  is  not  neces- 
sary, in  an  action  upon  the  bond  given 
to  the  sheriff  to  pre\ent  the  levy,  that  the 
complaint  should  aver  that  the  defendant 
in  the  attachment  suit  had  property 
within  the  county  which  was  subject  to 
be  le.vied  upon  under  the  writ.  Fresno 
Home  Packing  Co.  v.  Hannon,  16  Cal.  App. 
284;  116  Pac.  687.  Where,  by  the  terms 
of  an  undertaking  to  prevent  the  levy 
of  an  attachment,  the  parties  thereto 
undertook  to  pay,  on  demand,  any  judg- 
ment which  the  attaching  creditor  might 
recover  against  the  attachment  debtor, 
they  are  not,  as  between  themselves  and 
the  attaching  creditor,  released  from  lia- 
bility by  reason  of  the  sheriff  having  at- 
tached the  property  prior  to  the  giving 
of  the  undertaking  and  subsequently  re- 
leasing it,  nor  because  the  judgment  in 
the  attachment  suit  was  entered  by  con- 
sent, and  execution  stayed  for  sixty  days 
bv  pti])ulation  of  the  parties.  Preston  v. 
Hood,  64  Cal.  405;  1  Pac.  487.  Where  a 
bond,  given  to  prevent  the  levy  of  an  at- 
tachment, is,  in  terms,  join't  and  several, 
a  dismissal  of  the  action,  as  against  one 
of  the  sureties,  does  not  impair  or  affect 
the  maintenance  of  the  action  upon  the 
several  obligation  of  the  other  surety. 
Fresno  Home  Packing  Co.  v.  Hannon,  16 
Cal.    App.   284;    116   Pac.    687. 

Undertaking  to  release  attachment.  A 
bond  taken  by  the  sheriff,  in  con.sideration 
of  the  release  of  the  attachment,  is  not 
void  for  want  of  conformity  to  the  re- 
quirements of  the  statute,  which,  while 
prescribing  one  form,  does  not  prohibit 
another,  which  may  be  good  at  common 
law.  Smith  v.  Fargo,  57  Cal.  157;  Palmer 
V.  Vance,  13  Cal.  553.  Where  a  common- 
law  bond  is  given  for  the  release  of  at- 
tached property,  the  issuance  of  execution 
against  the  judgment  debtor  and  return 
thereof  unsatisfied  are  not  necessary  pre- 
requisites to  the  maintenance  of  suit 
thereon.  Kanouse  v.  Brand,  11  Cal.  App. 
669;  106  Pac.  120.  The  recitals,  in  a 
bond  for  the  release  of  an  attachment, 
of  the  plaintiff's  claim,  of  the  levy  of  the 
attachment,  and  of  the  desire  of  the  de- 
fendant to  release  the  same  by  bond,  are 


§540 


ATTACHMENT. 


548 


conclusive  against  the  obligor,  whether 
it  be  a  statutory  or  a  common-law  bond. 
Bailey  v.  ^^iltna  indemnity  Co.,  5  Cal.  App. 
740;  91  Pac.  416.  A  bond  given  for  the 
release  of  a  vessel  seized  under  the  act 
of  April  10,  1S50,  but  which  was  not  liable 
to  seizure  thereunder,  is  void.  McQueen 
V.  Ship  Eussell,  1  Cal.  165;  and  see  Mc- 
Millan V.  Dana,  18  Cal.  339;  Pierce  v. 
Whiting,  63  Cal.  538.  A  bond  for  the  re- 
lease of  an  attachment  does  not  operate 
as  a  stav  bond.  Bailev  v.  ^tna  In- 
demnity Co.,  5  Cal.  App.  740;  91  Pac.  416. 
The  sherifif  is  required  to  release  the  at- 
tachment when  the  defendant  gives  an 
undertaking  suflSeient  to  satisfy  the  de- 
mand, or  an  undertaking  in  an  amount 
equal  to  the  value  of  the  property  at- 
tached (Curtin  v.  Harvey,  120  Cal.  620; 
52  Pac.  1077);  but  he  has  no  authority  to 
release  an  attachment,  other  than  that 
given  him  by  statute;  and  he  can  release 
the  property  before  the  return  of  the 
writ,  only  "upon  giving  the  prescribed 
undertaking,  and  after  the  return  he  has 
no  authority  at  all  in  that  behalf;  an 
attempt  to  release  the  property  without 
the  plaintiff's  consent,  is  a  breach  of  duty, 
and,  if  he  does  so  with  the  plaintiff's  con- 
sent, he  obtains  his  authority  from  the 
j'laintiff,  and  not  from  the  statute;  and 
if  the  defendant,  after  the  return  of  the 
writ,  desires  the  release  of  the  property, 
he  must  apply  to  the  plaintiff,  or  he  may 
enter  his  appearance  in  the  action,  and 
apply  to  the  court  for  the  order  of  re- 
lease, as  provided  in  §§  554,  555,  post, 
Hesser  v.  Eowley,  139  Cal.  410;  73  Pac. 
156;  Maskev  v.  Lackmann,  146  Cal.  777; 
81   Pac.  115^ 

Liability  of  the  sureties.  The  liability 
of  a  surety,  where  he  gives  an  undertak- 
ing sufficient  to  satisfy  the  demand,  is 
the  amount  of  the  plaintiff's  demand;  but 
if  he  gives  an  undertaking  in  an  amount 
equal  to  the  value  of  the  property  at- 
tached, his  liability  is  the  value  of  such 
property.  Curtin  v.  Harvey,  120  Cal.  620; 
52  Pac.  1077.  In  the  case  of  a  statutory 
bond,  a  return  of  execution,  unsatisfied  in 
whole  or  in  part,  against  the  debtor,  is 
essential  to  fix  the  liability  of  the  sureties 
thereon.  Kanouse  v.  Brand,  11  Cal.  App. 
669;  106  Pac.  120.  A  stay  bond  given 
by  the  defendant  on  appeal  does  not  dis- 
charge the  obligation  of  an  undertaking 
given  under  this  section  to  jjrevent  the 
attachment.  Ayres  v.  Burr,  1.32  Cal.  125; 
04  Pac.  120.  tender  to  the  plaintiff  and 
refusal  by  him,  of  the  full  amount  of  the 
debt  and  costs,  discharges  the  sureties 
from  their  obligation  on  the  bond;  and 
for  the  purpose  of  discharging  the  sure- 
ties, it  is  not  necessary  that  such  tender 
shall  be  paid  into  court  or  kept  good. 
Curiae  v.  Packard,  29  Cal.  194;  Hayes  v. 
Josephi,  26  Cal.  535.  An  action  upon 
an  undertaking,  conditioned  to  pay  the 
amount    of   any    judgment   that   should    be 


recovered  in  an  attachment  suit,  will  be 
sustained,  although  judgment  was  ren- 
dered against  only  one  of  several  defend- 
ants. McCutcheon  v.  Weston,  65  Cal.  37; 
2  Pac.  727.  Where  the  property  of  the 
maker  of  a  note  is  attached  in  an  action 
against  him  and  his  indorser,  and  an 
undertaking  is  thereupon  given  for  the 
release  of  such  property,  conditioned  that 
the  sureties  will  pay  any  judgment  which 
may  be  recovered  against  such  maker, 
they  cannot,  on  paying  the  judgment,  be 
subrogated  to  any  right  not  possessed  by 
their  principal;  hence,  they  cannot  take 
an  assignment  of  the  judgment  and  en- 
force it  against  such  indorser.  March  v. 
Barnet,  121  Cal.  419;  66  Am.  St.  Eep.  44; 
53  Pac.  933.  The  adjudication  of  the 
bankruptcy  of  the  defendant,  after  the 
levy  of  the  attachment,  does  not  discharge 
the  sureties  on  a  bond  conditioned  for 
the  payment  of  any  judgment  the  plaintiff 
might  recover  against  the  defendant,  if 
the  defendant  does  not,  in  the  attachment 
suit,  plead  the  discharge  in  bankruptcy, 
and  the  plaintiff  recovers  judgment.  Good- 
hue V.  King,  55  Cal.  377;  and  see  Ander- 
son v.  Goff,  72  Cal.  65;  1  Am.  St.  Rep. 
34;    13    Pac.    73. 

Duties  and  liabilities  of  the  sheriff. 
Under  this  section,  the  sheriff  may  release 
property  from  attachment  at  any  time 
prior  to  his  return  on  the  writ  (San  Fran- 
cisco Sulphur  Co.  V.  ^tna  Indemnity  Co., 
11  Cal.  App.  695;  106  Pac.  Ill);  but,  by 
making  his  return,  he  divests  himself  of 
any  statutory  power  or  authority  to  re- 
lease the  attached  propertv.  Kanouse  v. 
Brand,  11  Cal.  App.  669;  106  Pac.  120.  It 
is  the  duty  of  the  sheriff,  instead  of  levy- 
ing the  writ  of  attachment,  to  accept  the 
undertaking  in  lieu  of  such  levy;  or,  if 
he  has  made  the  levy  and  taken  the  prop- 
erty into  custody,  to  accept  the  pre- 
scribed undertaking,  when  tendered  prior 
to  the  return  of  the  writ,  and  release  the 
propertv.  Kanouse  v.  Brand,  11  Cal.  App. 
669;  106  Pac.  120.  The  sheriff  has  no 
authority,  under  instructions  from  the 
creditor's  attorney,  to  keep  open  and  con- 
duct a  business  seized  on  attachment,  and 
charge  the  expenses  to  the  attaching 
creditor:  the  attorney  cannot  bind  his 
client  for  such  expenditures.  Alexander 
V.  Denaveaux,  53  Cal.  663.  The  sheriff 
has  no  right  to  sell  property,  or  to  permit 
it  to  be  sold,  pending  suit,  in  the  absence 
of  au  order  of  court:  the  act  of  a  ware- 
houseman, with  whom  he  stored  the  prop- 
erty, in  making  a  sale  thereof  for  storage, 
is  the  act  of  his  principal,  the  sheriff, 
who  is  liable  as  for  the  conversion  of 
property,  whether  or  not  he  ever  had  a 
lieu  on  it  for  his  fees,  and  the  only  lia- 
bility of  the  sureties  is  on  their  contract, 
not  being  joint  tort-feasors.  Aigeltinger 
V.  Whelan,  133  Cal.  110;  65  Pac.  125.  The 
administrator  of  the  defendant  may  bring 
an  action  to  recover  the  value  of  property 


549 


SHARES  OP  STOCK — DEBTS — INTEREST  IN   REAL  PROPERTY. 


§541 


tortiously  taken  after  dissolution  of  tin? 
attaihiiient  by  the  death  of  the  defendant. 
Hani  V.  Henderson,  50  C'al.  3(57.  The  judfj- 
ineiit  for  the  (l(>fendant  in  an  attachment 
Kuit  is  ailmissihle  in  evidenee  to  establish 
the  dissolution  of  the  attachment  and  to 
show  the  defendant's  ri<:ht  to  the  return 
of  the  property,  in  an  action  ajjainst  the 
officer  for  dama<;es  for  failure  to  return 
the  property.  Aifreltinfjer  v.  Whelan,  ]33 
Cal.  IIU;  i).j  Pac.  125.  On  api.eal,  the 
release  must  V)e  presumed  to  have  been 
made  before  the  return  of  the  writ,  in  a 
collateral  action,  ^A•here  the  pleading's  do 
not  allege  the  contrary.  Maskev  v.  Lack- 
mann,   146   Cal.   777;   81  Pac.   115. 


§ 


Effect  of  unrecorded  deed  on  subsequent 
attachment.  .\n  unrccordi-d  dccil  takes 
jtrecedonce  over  a  sulisequcnt  attacliment 
or  judgment  aj^'ainst  the  grantor.  Wolfe 
V.  Lan<;ford,  14  Cal.  App.  :i.')9;  112  Pac. 
2U3. 

CODE  COMMISSIONERS'  NOTE.  1.  Return- 
day.  .No  return  (l.iy  iicid  Ik.  inserted  in  the  writ, 
(ieiiin  V.  TonipkinK,  1'2  15arb.  "JCO-'JHT  ;  1  Code 
Hep.  (.\.  S.  )  4 1  .J  ;  Cauiiuun  v.  Tuuipl^iio*!  1  C'nui; 
Rep.    (X.   S.)    12-16. 

2.  Omissions.  The  attachment  is  not  void  if 
it  omits  to  state  that  "it  was  issued  in  an  ac- 
tion then  pending."  Lawton  v.  Reil,  34  How.  Pr. 
4G.')  ;    Lawton  V.    Kiel,    51    Harlj.    :iii. 

3.  Form  and  effect  of  undertaking  on  release 
of  attachment.  See  Curiae  v.  Packard,  2'J  Cal. 
194. 


541.  Shares  of  stock  and  debts  due  defendant,  how  attached  and  dis- 
posed of.  The  rights  or  shares  which  the  defendant  may  have  in  the  stock 
of  any  corporation  or  company,  together  with  the  interest  and  profit  thereon, 
and  all  debts  dne  such  defendant,  and  all  other  property  in  this  state  of 
such  defendant  not  exempt  from  execution,  may  be  attached,  and  if  judg- 
ment be  recovered,  be  sold  to  satisfy  the  judgment  and  execution. 

or  serve  notice  on  the  corporation  that  he 
holds  them  as  such  assignee  or  pledgee: 
one  purchasing,  at  execution  sale,  shares 
of  a  corporation,  standing  on  the  books 
of  the  corporation  in  the  name  of  the 
judgment  debtor,  is  entitled  to  have  the 
certificate  of  such  shares  reissued  to  him, 
if,  at  the  time  of  the  jiurchase,  he  acts 
in  good  faith,  and  without  notice  that 
an  outstanding  certificate  has  been  as- 
signed or  pledged  to  some  person  other 
than  the  judgment  debtor.  West  Coast 
Safety  Faucet  Co.  v.  Wulff,  133  Cal.  315; 
85  Am.  St.  Ecp.  171;  65  Pac.  622.  An 
execution  purchaser  of  stock,  with  notice 
that  it  has  been  assigned  as  security,  takes 
it  subject  to  the  rights  of  the  assignee. 
Weston  V.  Bear  River  etc.  Mining  Co., 
6  Cal.  425;  Naglee  v.  Pacific  Wharf  Co., 
20  Cal.  529;  People  v.  Elmore,  35  Cal.  655; 
Winter  v.  Belmont  Mining  Co.,  53  Cal. 
428;  Farmers'  Nat.  Gold  Bank  a\  Wilson, 
58  Cal.  600;  West  Coast  Safety  Faucet 
Co.  V.  Wulff,  133  Cal.  315;  85  Am.  St.  Rep. 
171;  65  Pac.  622. 

Interests  in  real  property.  Land  con- 
veyed in  trust  to  jtay  certain  creditors, 
reserving  the  right  to  surplus  profits, 
where  not  made  in  fraud  of  creditors,  is 
not  subject  to  attachment  in  an  action 
against  the  grantor.  Heath  v.  Wilson, 
139  Cal.  362;  73  Pac.  182.  The  vendor's 
equitable  lien  on  real  estate,  after  absolute 
conveyance  thereof,  is  not  subject  to  levy 
and  sale  on  execution:  the  indebtedness 
for  the  purchase  price  of  real  estate  may 
be  levied  upon,  but  the  vendor's  equitable 
lien,  attaching  by  virtue  of  indebtedness, 
is  extinguished  by  the  transfer  of  the  in- 
debtedness. Ross  V.  Heintzen,  36  Cal.  313; 
Baum  V.  Grigsbv,  21  Cal.  172;  81  Am. 
Dec.  153;  Lewis  V.  Covillaud,  21  Cal.  178; 
Williams  v.   Young,  21   Cal.   227. 


Attachment. 

1.  Building  material,  when  not  subject  to. 
See    post,  §  llfiG. 

2.  Co-operative  business  association,  prop- 
erty of  subject  to.    See  Civ.  Code,  §  G53f. 

3.  Debts  and  credits,  etc.,  how.  I'ost,  §  542, 
subd.    5. 

4.  Moneys  arising  from  mutual-assessment 
contract,  exemptions  from.  See  Civ.  Code, 
§  453k. 

5.  Stocks  or  shares,  how.  Post,  §  542, 
subd.   4. 

6.  Vessel,  tackle,  furniture,  etc.  See  post, 
§§  817   et   seq. 

Garnishment,  generally.    Post,  §§  543-545. 
Legislations  541.      Enacted    March    11,    1872; 

based  on  Practice  Act,  §  124,  which  had  the  word 
"profit"  instead  of  "profits." 

Shares  of  stock  in  corporation.  The  at- 
tachment of  corporate  stock  impounds  all 
profits  and  dividends  thereon.  McCarthy 
Co.  V.  Boothe,  2  Cal.  App.  170;  83  Pac. 
175.  A  transfer  of  unregistered  corporate 
stock  takes  precedence  over  a  subsequent 
attachment  or  execution  levied  on  the 
stock  for  the  debt  of  the  vendor,  in  whose 
name  it  stands  upon  the  books  of  the 
corporation.  National  Bank  v.  Western 
Pacific  Ry.  Co.,  157  Cal.  573;  27  L.  R.  A. 
(N.  S.)  987;  21  Ann.  Cas.  1391;  108  Pac. 
676.  Pledged  stock,  standing  on  the 
books  of  the  corporation  in  the  name  of 
the  pledgor,  is  attachable  as  his  property. 
Strout  V.  Natoma  etc.  Mining  Co.,  9  Cal. 
78.  Stock-certificates  pledged  as  collat- 
eral security,  but  not  transferred  on  the 
books  of  the  company,  and  the  possession 
of  which  the  pledgee  does  not  retain,  may 
be  attached  as  against  the  pledgor:  such 
pledge  is  void  as  to  attaching  creditors. 
McFall  V.  Buckeye  etc.  Ass'n,  122  Cal. 
468;  68  Am.  St.  Rep.  47;  55  Pac.  253. 
The  assignee  or  pledgee  of  stock-certifi- 
cates, in  order  to  protect  his  rights  as 
against  attachments  levied  thereon  as  the 
property  of  his  assignor  or  pledgor,  must 
have   the    certificates   reissued   to   himself, 


5  541 


ATTACHMENT. 


550 


Property    not    subject    to    attachment. 

Public  buildings  are  not  subject  to  at- 
taohnioiit.  Dennis  v.  First  Nat.  Bank,  127 
Cal.  453;   78  Am.  St.  Rep.  79;  59  Pac.  777. 

A  license  or  privilege,  personal  in  char- 
acter, is  not  subject  to  attachment.  Lowen- 
berg  V.  Grcenebaum,  99  Cal.  162;  37  Am. 
St.  Rep.  42;  21   L.  R.  A.  399;  33  Pac.  794. 

A  patent  right,  not  being  tangible  prop- 
erty, but  an  incorporeal  right,  is  not  sub- 
ject to  attachment  (Peterson  v.  Sheriff, 
115  Cal.  211;  46  Pac.  1060);  but  in  pro- 
ceedings supplementary  to  execution  the 
execution  tlebtor  may  be  compelled  to 
make  an  assignment,  to  a  receiver,  of  his 
patent  right.  Pacific  Bank  v.  Robinson, 
57    Cal.   520;    40   Pac.    120. 

Money  deposited  in  bank,  the  proceeds 
of  life-insurance  policies  payable  to  a 
widow  as  beneficiary,  is  not  subject  to 
execution.  Holmes  v.  Marshall,  145  Cal. 
777;  104  Am.  St.  Rep.  86;  69  L.  R.  A. 
67;   2  Ann.  Cas.   88;   79  Pac.  534. 

A  broker's  seat  in  a  stock  and  exchange 
board  is  not  subject  to  attachment.  Lowen- 
berg  V.  Greenebaum,  99  Cal.  162;  37  Am. 
St.  Rep.  42;  21  L.  R.  A.  399;  33  Pac.  794. 

Salaries  of  public  officials,  whether  state, 
county,  or  municipal,  are  not  subject  to 
attachment.  Ruperick  v.  Baehr,  142  Cal. 
190;  75  Pac.  782. 

A  franchise,  held  by  an  individual,  to 
collect  toll  on  a  toll-road  is  not  subject 
to  attachment  (Gregory  v.  Blanchard,  98 
Cal.  311;  33  Pac.  199);  nor  is  the  franchise 
of  a  street-railroad,  except  when  other- 
wise provided  by  statute.  Risdon  Iron  etc. 
Works  v.  Citizens'  Traction  Co.,  122  Cal. 
94;   68   Am.  St.  Rep.   25;    54   Pac.   529. 

An  assigned  chose  of  action  is  not  sub- 
ject to  attachment.  Walling  v.  Miller,  15 
Cal.  38;  Mclntyre  v.  Hauser,  131  Cal.  11; 
63    Pac.    69. 

Judgments  cannot  be  levied  upon  and 
sold  under  execution  as  personal  property 
capable  of  manual  delivery;  it  is  only 
the  debt  itself  that  may  be  attached: 
there  is  no  provision  for  attaching  or 
levying  on  evidences  of  debt.  McBride 
V.  Fallon,  65  Cal.  301;  4  Pac.  17;  Dove 
v.  Doughertv,  72  Cal.  232;  1  Am.  St.  Rep. 
48;  13  Pac.  621;  Latham  v.  Blake,  77  Cal. 
046;  18  Pac.  150;  20  Pac.  417;  Hoxie  v. 
Bryant,  131  Cal.  85;  63  Pac.  153;  Fore 
v.    Majilove,    18    Cal.    436. 

Homestead.  Where  property  impressed 
with  the  character  of  a  homestead  is  worth 
more  than  the  homestead  exemption,  a 
levy  can  only  be  made  for  the  purpose  of 
inaugurating  proceedings  for  the  ad- 
measurement of  the  excess  in  value.  Lub- 
bock V.  MeMann,  82  Cal.  226;  16  Am. 
St.  Rep.  108;  22  Pac.  1145;  and  see  Ackley 
V.  Chamberlain,  16  Cal.  181;  76  Am.  Dec. 
516;  Bowman  v.  Norton,  16  Cal.  213;  Bar- 
rett V.  Sims,  59  Cal.  615;  Sanders  v.  Rus- 
sel,  86  Cal.  119;  21  Am.  St.  Rep.  26;  24 
Pac.    852;    Dam    v.   Zink,    112    Cal.   91;    44 


Pac.  331;  Lean  v.  Givens,  146  Cal.  739; 
106  Am.   St.  Rep.   79;   81  Pac.   128. 

Property,  after  sale  on  execution,  left 
in  the  possession  of  the  execution  debtor, 
is  not  thereafter  liable  to  attachment  by 
other  creditors;  nor,  after  the  execution 
sale,  is  change  of  possession  required  to 
make  valid  the  transfer  as  against  his 
creditors.  Matteucci  v.  Whelan,  123  Cal. 
312;   69  Am.  St.  Rep.  60;  55  Pac.  990. 

Debts  not  due;  negotiable  instruments. 
Debts  not  due  are  not  subject  to  garnish- 
ment (Early  v.  Redwood  City,  57  Cal. 
193);  nor  can  property  be  taken  in  attach- 
ment, that  is  not  liable  to  seizure  under 
the  execution  when  issued.  Myers  v.  Mott, 
29  Cal.  359;  89  Am.  Dec.  49.  Credit  must 
exist  at  the  time  of  levy  of  attachment, 
or  no  lien  is  created;  hence,  although  a 
defendant  may  have  earned  a  portion  of 
the  amount  payable  upon  the  conclusion 
of  his  contract  with  the  garnishee,  if  the 
amount  thereof  is  not  payable  until  the 
conclusion  of  the  contract,  there  is  no 
credit  which  may  be  attached.  Early  v. 
Redwood  City,  57  Cal.  193.  Where  pay- 
ment is  to  be  made  when  property  is  de- 
livered at  a  specified  place,  no  debt  is 
created  until  delivery  is  made:  an  attach- 
ment served  at  the  place  of  delivery,  be- 
fore the  property  is  delivered,  is  premature 
and  invalid.  Maier  v.  Freeman,  112  Cal. 
8;  53  Am.  St.  Rep.  151;  44  Pac.  357.  If, 
at  the  time  the  attachment  is  served  upon 
the  garnishee,  the  defendant  in  the  at- 
tachment can  maintain  against  him  an  ac- 
tion of  debt  or  indebitatus  assumpsit,  the 
liability  of  the  garnishee  is  transferred 
from  the  defendant  to  the  plaintiff  in  the 
attachment  suit,  and  not  otherwise.  Hassie 
v.  G.  L  W.  U.  Congregation,  35  Cal.  378. 
Before  the  maturity  of  a  promissory  note, 
the  indebtedness  of  the  maker  thereon  is 
not  the  subject  of  attachment:  the  obli- 
gation of  the  maker  is  not  to  the  payee 
named  in  the  note,  but  to  the  holder,  who- 
ever he  may  be.  Gregory  v.  Higgins,  10 
Cal.  339.  Money  on  deposit  in  a  bank, 
upon  which  negotiable  certificates  have 
been  paid  for  the  full  amount,  is  not  sub- 
ject to  attachment.  McMillan  v.  Richards, 
9  Cal.  365;  70  Am.  Dee.  655.  The  gar- 
nishee is  not  liable  to  any  creditor  of  the 
defendant  by  virtue  of  an  attachment 
levied  after  the  debt  has  become  barred 
as  to  such  defendant  by  the  statute  of 
limitations.  Clyne  v.  Easton,  148  Cal.  287; 
113    Am.   St.   Rep.   253;    83   Pac.   36. 

Contingent  contracts  and  interests.  Con- 
tracts, contingent  and  complicated,  which 
cannot  be  taken  into  the  possession  of  the 
sheriff,  cannot  be  levied  upon  and  sold 
under  execution,  and,  apparently,  are  not 
subject  to  attachment  (Crandall  v.  Blen, 
13  Cal.  15) ;  neither  are  contingent  in- 
terests subject  to  attachment.  Tuohy  v. 
Wingfield,  52  Cal.  319;  Howell  v.  Foster, 
65  Cal.  169;  3  Pac.  647;  Farnum  v.  Hefner, 


551 


PROPERTY  NOT  SUBJECT  TO  ATTACH. M EXT. 


§541 


79  Cal.  575;  12  Am.  St.  Rep.  174;  21  Pac. 
955;  Ward  v.  Waterman,  85  Cal.  488;  24 
Pac.  930.  An  assignment  may  be  legally 
made  of  money  to  become  due  upon  the 
completion  of  work  according  to  the  terms 
of  a  contract;  and  upon  the  completion  of 
such  work  the  assignor  has  no  attachable 
interest  therein.  Early  v.  Redwood  City, 
57  Cal.  193.  The  equitable  interest  of  a 
subcontractor  in  a  portion  of  a  building 
contract  assigned  to  him  by  the  contractor, 
which  is  to  be  paid  in  installments  upon 
certain  contingencies  is  not  subject  to  at- 
tachment (Ilassie  v.  G.  I.  W.  U.  Congre- 
gation, 35  Cal.  378);  nor  is  the  equitable 
right,  of  the  assignee  of  a  vendee  under 
an  executory  contract  for  the  conveyance 
of  land,  upon  the  breach  of  a  contract,  to 
recover  the  amount  paid  on  the  purchase 
price.  Redondo  Beach  Co.  v.  Brewer,  101 
Cal.  322;  35  Pac.  896.  A  mortgagee's  in- 
terest in  mortgaged  land  is  not  an  estate, 
either  before  or  after  condition  broken, 
and  is  not  subject  to  attachment.  Mc- 
Gurren  v.  Garrity,  68  Cal.  566;  9  Pac.  839. 
The  purchaser  of  mortgaged  premises  does 
not,  by  his  purchase,  become  indebted  to 
the  mortgagee,  nor  does  he  become  a 
debtor  by  virtue  of  an  agreement  with  his 
vendor  to  pay  the  mortgage  debt;  henve, 
he  cannot  be  garnished  by  a  creditor  of 
the  mortgagee.  Hartman  v.  Olvera,  54  Cal. 
61. 

Property  in  the  custody  of  the  law. 
Property  in  the  custody  of  the  law  is  not 
subject  to  attachment.  Yuba  County  v. 
Adams,  7  Cal.  35;  Clymer  v.  Willis,  3  Cal. 
363;  58  Am.  Dec.  414.  Thus,  money  in  the 
hands  of  an  administrator,  before  decree 
of  distribution,  is  not  subject  to  garnish- 
ment. Estate  of  Nerac,  35  Cal.  392;  95  Am. 
Dec.  111.  Funds  in  the  hands  of  a  re- 
ceiver, master  in  chancery,  trustee  of  court, 
assignee  in  bankruptcy  or  insolvency,  ex- 
ecutor or  administrator,  are  not  subject 
to  garnishment  before  the  order  of  dis- 
tribution is  made  by  the  court.  Dunsmoor 
V.  Furstenfeldt,  88  Cal.  522;  23  Am.  St. 
Rep.  331;  12  L.  R.  A.  508;  26  Pac.  518; 
Adams  v.  Haskell,  6  Cal.  113;  65  Am.  Dec. 
491.  Money  collected  by  a  sheriff  on  exe- 
cution is  not  a  debt  due  the  plaintiff  in 
execution,  but  is  in  the  custody  of  the  law 
until  finally  and  properly  disposed  of,  and 
is  not  the  subject  of  attachment.  Clymer 
V.  Willis,  3  Cal.  363;  58  Am.  Dec.  414. 
Money  deposited  with  a  sheriff  to  procure 
the  release  of  an  attachment  is  in  tlie  cus- 
tody of  the  law,  and  is  not  the  subject  of 
attachment;  but  where  the  parties,  b}'  a 
mutual  agreement,  and  without  any  order 
of  the  court,  take  the  money  out  of  the 
hands  of  the  sheriff  and  lend  it  to  third 
parties,  the  latter  are  not  bailees  of  the 
sheriff,  and  the  money  is  no  longer  in  the 
custody  of  the  law.  Hathaway  v.  Brady, 
26  Cal.  581.  Money  deposited  with  the 
clerk  of  the  court,  for  the  benefit  of  credi- 
tors, by  order  of  the  court,   is   in  the  cus- 


tody of  tile  law  until  the  determination  of 
the  suit  by  a  decree  fixing  the  share  of 
each  creditor,  and  is  not  subject  to  at- 
tachment. Dunsmoor  v.  Furstenfeldt,  88 
Cal.  522;  22  Am.  St.  Rep.  331;  12  L.  R.  A. 
508;  26  Pac.  518.  The  assets  of  a  bank  in 
liquidation  under  the  Bank  Commissioners' 
Act  are  not  subject  to  attachment.  Crane 
V.  Pacific  Bank,  106  Cal.  64;  27  L.  R.  A. 
562;  39  Pac.  215.  Under  the  National 
Banking  Act,  no  attachment  can  issue 
against  a  national  bank  from  a  state  court. 
Dennis  v.  First  Nat.  Bank,  127  Cal.  453; 
78  Am.  St.  Rep.  79;  59  Pac.  777.  The 
claim  of  a  Federal  court,  that  money  in 
the  possession  of  its  clerk  is  held  by  him 
as  an  officer  of  the  court,  precludes  an  ef- 
fective garnishment  thereof  in  a  court  of 
this  state;  there  being  no  common  arbiter 
between  state  and  Federal  courts,  comity 
between  them  becomes  a  necessity,  and 
is  a  law  not  to  be  disregarded;  and  the 
Federal  court,  when  first  in  possession  of 
the  subject  of  litigation,  must  be  left  to 
determine  when  its  possession  and  control 
thereof  has  ended.  Swinnerton  v.  Oregon 
Pacific  R.  R.  Co.,  123  Cal.  417;  56  Pac.  40. 
Property  taken  from  a  prisoner,  on  his  ar- 
rest by  an  officer  charged  with  that  duty, 
is  not  subject  to  garnishment.  Coffee  v. 
Haynes,  124  Cal.  561;  71  Am.  St.  Rep.  99; 
57  Pac.  482. 

Attachment  of  shares  of  corporate  stock.  See 
note   52  .\m.   St.   Kop.  474. 

Garnishment  of  stock  in  foreign  corporation. 
Sf<.   note  55   L.   R.  A.   79  7. 

Bight  of  creditor  who  is  also  a  stockholder  of 
an  insolvent  corporation  to  attach  property  of 
corporation  as  affected  by  his  own  statutory  lia- 
bility.    See  note  41   L.  R.  A.    (N.  S.)    987. 

Garnishment  of  money  due  on  negotiable  in- 
strument.   See  note  55  Am.  Dec.  08. 

Liability  of  promissory  note  to  seizure  and  sale 
under  attachment.    See  note  15  Ann.  Ca.s.  980. 

Whether  money  in  officer's  hands  is  subject  to 
attachment.    See  note  55  Am.  Dec.  '264. 

Liability  of  cars  of  foreign  railroad  to  attach- 
ment. See  notes  104  .\m.  St.  Rep.  663;  2  Ann. 
Cas.   349;    11   Ann.   Cns.   910. 

Liability  to  attachment  at  suit  of  contractor's 
creditors,  of  materials  furnished  to  be  used  in 
construction  of  building.  See  note  -Vnn.  Cas. 
1913A,  876. 

Equitable  interest  in  personal  property  as  sub- 
ject to  attachment.    See  note   11   Ann.  Cas.  669. 

Attachment  of  funds  held  by  trustee  in  bank- 
ruptcy.   See  note   13  Ann.  Cas.  810. 

Garnishment  of  unearned  salary.  See  note  20 
L.  K.  A.   (N.  S.)   912. 

Garnishment  of  husband's  interest  in  wife's 
legacy  or  distributive  share  in  decedent's  estate. 

See   note  47  L.   R.  A.   3<i(>. 

Garnishment  of  unliquidated  claims.  See  note 
59   L.   R.   A.  353. 

Garnishment  of  distributive  shares  in  dece- 
dent's estate  before  settlement.  See  note  59 
L.    R.    A.   387. 

CODE  COMMISSIONERS'  NOTE.  1.  What 
may  or  may  not  be  attached.  The  interest  of 
a  pledgor  is  subjert  to  execution,  and  is  reached 
by  serving  and  enforcing  a  garnishment  on  the 
pledgee,  not  bv  a  seizure  of  the  pledge.  Tread- 
well  V.  Davis,'  34  Cal.  (iOl  ;  94  Am.  Dec.  770. 
Money  in  the  hands  of  an  administrator,  after 
decree  made,  distributing  it  to  an  heir  or  devisee, 
may  be  garnished  by  a  creditor  of  the  distributee. 
Estate  of  Nerac,  35  Cal.  392:  95  Am.  Dec.  111. 
An  equitable  demand  is  not  the  subject  of  gar- 
nishment: it  reaches  only  legal  dibts.— debts  upon 
which  the  defendant,  at  the  time  of  garnishment, 


§  542  ATTACHMENT,  552 

could    have    maintained,    under    the    common-law  2.  Extent  of  the   seizure.    Fitzgerald  v.  Blake, 

practice,    an    action    of    debt    or    assumpsit.     Has-  42  Barb.  513;   28  How.  Pr.  110.      If,  at  the  time 

sie    V     G.    I.    W.    U.    Congregation,    35    Cal.    378.  of   the   levy,    there   is   great   uncertainty   as   to   the 

Funds  in  the  hands  of  a  receiver  are  not  subject  value  of  the  property  attached,  and  it  subsequently 

to    attachment.     Adams    v.    Haskell,    6    Cal.    113;  appears   that  its   value   was   greatly   in   excess   uf 

65    Am.    Dec.    491  ;     Yuba    County    v.    Adams.    7  the  demand  sued  for,  it  does  not  follow  that  the 

Cal.    35.      The    indebtedness    of    a    maker    upon    a  levy    was    excessive.     Sexey    v.    Adkison,    40    Cal. 

promissory   note,    before   its   maturity,    is   not   the  408. 

subject  of   attachment.     His  obligation   is  not  to  3.  Letters  and  correspondence.      The   officer  is 

the   payee  named   in   the  note,   but   to   the  holder.  not  authorized  to  seize  letters;   and  where  he  did. 

Nor    can    such    indebtedness,    after    maturity,    be  and   took    copies    of   business    letters,    and    looked 

attached,   unless   the   note   is,   at   the   time,    in   the  into   the   correspondence   of   a   firm,   it   was   held  a 

possession   of   the   defendant,   from   whom  its   de-  gross   abuse   of   his   powers.    Hergman   v.   Dettle- 

livery   can   be   enforced   on   its   payment   upon   the  bach,  11  How.  Pr.  46. 
attachment.    Gregory  v.  Higgins,  10  Cal.  339. 

§  542.  How  real  and  personal  property,  shall  be  attached.  The  sheriff  to 
whom  the  writ  is  directed  and  delivered,  must  execute  the  same  without 
delay,  and  if  the  undertaking  mentioned  in  section  five  hundred  and  forty 
be  not  given,  as  follows : 

1.  Real  property',  standing  upon  the  records  of  the  county  in  the  name  of 
the  defendant,  must  be  attached,  by  filing  with  the  recorder  of  the  county 
a  copy  of  the  Avrit,  together  with  a  description  of  the  property  attached,  and 
a  notice  that  it  is  attached;  and  by  leaving  a  similar  copy  of  the  writ, 
description,  and  notice  with  an  occupant  of  the  property,  if  there  is  one; 
if  not,  then  by  posting  the  same  in  a  conspicuous  place  on  the  property 
attached. 

2.  Real  property,  or  an  interest  therein,  belonging  to  the  defendant,  and 
held  by  any  other  person,  or  standing  on  the  records  of  the  county  in  the 
name  of  any  other  person,  must  be  attached,  by  filing  with  the  recorder  of 
the  county  a  copy  of  the  writ,  together  with  a  description  of  the  property, 
and  a  notice  that  such  real  property,  and  any  interest  of  the  defendant 
therein,  held  by  or  standing  in  the  name  of  such  other  person  (naming  him), 
are  attached;  and  by  leaving  with  the  occupant,  if  any,  and  with  such  other 
person,  or  his  agent,  if  known  and  within  the  county,  or  at  the  residence  of 
either,  if  within  the  county,  a  copy  of  the  writ,  with  a  similar  description 
and  notice.  If  there  is  no  occupant  of  the  propertj^  a  copy  of  the  writ, 
together  with  sucn  description  and  notice,  must  be  posted  in  a  conspicuous 
place  upon  the  property.  The  recorder  must  index  such  attachment  when 
filed,  in  the  names,  both  of  the  defendant  and  of  the  person  by  whom  the 
property  is  held  or  in  whose  name  it  stands  on  the  records. 

3.  Personal  property,  capable  of  manual  delivery,  must  be  attached  by 
taking  it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares,  of  any  corporation  or 
company,  must  be  attached  by  leaving  with  the  president,  or  other  head  of 
the  same,  or  the  secretary,  cashier,  or  other  managing  agent  thereof,  a  copy 
of  the  writ,  and  a  notice  stating  that  the  stock  or  interest  of  the  defendant 
is  attached,  in  pursuance  of  such  writ. 

5.  Debts  and  credits  and  other  personal  property,  not  capable  of  manual 
delivery,  must  be  attached  by  leaving  with  the  person  owing  such  debts,  or 
having  in  his  possession,  or  under  his  control,  such  credits  and  other  per- 
sonal property,  or  with  his  agent,  a  copy  of  the  writ,  and  a  notice  that  the 
debts  owing  by  him  to  the  defendant,  or  the  credits  and  other  personal  prop- 
erty in  his  possession,  or  under  his  control,  belonging  to  the  defendant,  are 
attached  in  pursuance  of  such  writ,  except  in  the  case  of  attachment  of 
growing  crops,  a  copy  of  the  writ,  together  with  a  description  of  the  prop- 


553 


REAL  AND  PERSONAL  PROPERTY  ATTACHED  HOW. 


§542 


erty  attached,  and  a  notice  that  it  is  attached,  shall  he  recorded  the  same 

as  in  the  attaclinient  of  real  profjerty. 

to  he  surrendered  to  the  new  sherifT.  Sagely 
V.  Livermorc,  45  Cal.  613  (but  this  case 
arose  under  the  law  in  force  prior  to  1883); 
and  see  Perrin  v.  McMann,  97  Cal.  52;  31 
Pac.  837.  The  lien  of  an  attachment  is 
not  affected  by  any  irregularities  in  the 
attachment,  but  such  irregularities  are 
waived  by  the  defendant,  where  he  ap- 
pears and  answers  without  taking  ad- 
vantage of  them  by  motion  or  otherwise. 
Porter  v.  Pico,  55  Cal.  165.  The  lien  of 
an  attachment,  properly  levied,  is  not 
divested  by  the  failure  of  the  officer  to 
make  a  proper  return  of  the  writ.  Ritter  v. 
Scannell,  11  Cal.  239;  70  Am.  Dec.  775. 
Where  one  writ  of  attachment  was  placed 
in  the  hands  of  the  sheriff  between  nine 
and  ten  o'clock  Sunday  evening,  and  an- 
other writ,  against  the  same  defendant, 
was  placed  in  the  hands  of  a  deputy  a  few 
minutes  after  midnight,  the  sheriff  not 
knowing  the  fact;  and  the  first  levy  was 
made  on  the  last  writ  at  one  o'clock  Mon- 
day morning,  and  the  second  levy,  under 
the  first  writ,  was  made  by  the  sheriff  at 
eight  o'clock  of  the  same  morning,  the 
sheriff  was  held  not  guilty  of  negligence 
in  executing  the  first  writ,  no  special  cir- 
cumstances being  shown.  Whitnev  v.  But- 
terfield,  13  Cal.  335;  73  Am.  Dec.' 584.  It 
is  the  duty  of  the  officer,  after  he  has  once 
entered  upon  the  execution  of  the  writ,  to 
complete  its  execution  with  diligence. 
Wheaton  v.  Neville,  19  Cal.  41.  The  sheriff 
must  execute  the  writ  with  all  reasonable 
celerity;  but  he  is  not  held  to  the  duty  of 
starting  to  execute  it  on  the  instant  he 
receives  it,  without  regard  to  anything 
else  than  its  instant  execution;  unless  some 
special  reasons  of  urgency  exist;  reason- 
able diligence  is  all  that  is  required;  but 
this  reasonable  diligence  depends  upon  the 
particular  facts  in  connection  with  the 
duty.  Whitney  v.  Butterfield,  13  Cal.  335; 
73  Am.  Dec.  584.  The  sheriff  has  no  right 
to  sell  attached  property  at  private  sale, 
or  to  authorize  another  to  do  so,  and  for 
such  default  he  and  his  sureties  are  liable 
on  his  official  bond;  and  it  makes  no  dif- 
ference that  the  property  was  sold  for  its 
highest  market  value;  and  the  proceeds  of 
such  sale  can  go  merely  in  reduction  of 
damages  in  an  action  by  the  attaching 
creditor  against  the  officer.  Sheehy  v. 
Graves,  58  Cal.  449.  The  decision  of  the 
trial  court  as  to  the  sufficiency  of  the  levy 
will  not  be  reversed  on  appeal,  where  the 
evidence  is  conflicting.  Rudolph  v.  Saun- 
ders, 111  Cal.  233;  43  Pac.  G19.  Matters 
relied  on  as  o]>erating  to  dissolve  the  writ 
must  be  specially  pleaded  by  the  sheriff, 
in  an  action  against  him  for  a  violation  of 
his  duty  in  the  service  thereof.  McComb 
V.  Reed,  28  Cal.  281;  87  Am.  Dec.  115. 

Liability  for  wrongful  seizure.     A  third 
party,  seizing  the  goods  of  the  defendant 


Attachment  lien,  officers.    Civ.  Codi^.  §  3057. 

Leviable  interest  in  mortgaged  property.  Civ. 
Co>'h\  (;§  'JiU'.s-'jitTd. 

Fraudulent  transfers.  Civ.  Code,  §§  12 '2 7.  :u:U. 
3439-3442. 

Legislation  8  542.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  125,  as  amended  by 
Stats.  1862,  p.  .')()8,  and  (1)  in  the  introductory 
paraRvaph,  the  word  "stiall"  was  printed  "must"  : 

(2)  subd.  1  read,  "Real  property  standing  upon 
the  records  of  the  county,  in  the  name  of  tlie 
defendant,  shall  be  attached,  by  leaving  a  copy  of 
the  writ  with  an  occupant  thereof;  or,  if  there 
be  no  occupant,  by  postinp  a  copy  in  a  conspicu- 
ous place  thereon,  and  filing  a  copy,  together 
with  a  description  of  the  property  attached,  with 
the  recorder  of  the  county";  (3)  subd.  2  read, 
"Real  property,  or  any  interest  therein,  belonging 
to  the  defendant,  and  held  by  any  other  person, 
or  standing  on  the  records  of  the  county  in  the 
name  of  any  other  person,  shall  be  attached,  by 
leaving  with  such  person,  or  his  agent,  a  copy  of 
the    writ,    and    a    notice    that    such    real    property, 

(giving  a  description  thereof,)  and  any  interest 
therein,  belonging  to  the  defendant,  are  attached 
pursuant  to  such  writ,  and  filing  a  copy  of  such 
writ  and  notice  with  the  recorder  of  the  county, 
and  leaving  a  copy  of  such  writ  and  notice  with 
an  occupant  of  such  property,  or,  if  th(-re  be  no 
occupant,  by  posting  a  copy  thereof  in  a  con- 
spicuous place  thereon";  (4)  in  subd.  3,  the 
word    "must"   was   printed    "shall";    (5)    in   subd. 

4,  (a)  the  word  "stocks"  was  printed  "stock." 
in  both  instances,  and  (b)  the  word  "must" 
was  printed  "shall";  (6)  in  subd.  5,  (a)  the 
words  "Debts"  and  "must"  were  printed,  re- 
spectively, "Debits"  and  "shall,"  (b)  the  word 
"owing,"  before  "such  debts,"  was  printed  "own- 
ing," and  (c)  the  word  "or,"  before  "the  credits 
and,"  was  printed  "on."  When  enacted  in  1872, 
§  542  read  as  at  present,  except  that,  in  subd.  5, 
(1)  the  word  "owning,"  before  "such  debts," 
•was  not  changed  to  "owing,"  and  (2)  it  did  not 
contain  the  exception  at  the  end  of  that  sub- 
division, beginning  "except  in  the  case." 

2.  Amendment  by  Stats.  1901,  p.  139;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.   1903,  p.   167,   in  subd. 

5,  (1)  changing  the  word  "owing"  from  "own- 
ing," and  (2)  adding  the  exception  at  the  end, 
after  "pursuance  of  such  writ." 

Power  of  legislature.  The  legislature 
may  provide  not  only  in  what  cases  an  at- 
tachment may  issue,  but  also  the  classes 
of  property  upon  which  it  mav  be  levied. 
Dennis  v.  First  Nat.  Bank,  127'Cal.  453;  78 
Am.  St.  Rep.  79;  59  Pac.  777. 

Execution  of  writ.  A  writ  of  attach- 
ment is  not  wholly  executed  by  the  seizure 
of  the  attached  property,  so  far  as  the  offi- 
cer is  concerned,  although  it  is  so  as  to  the 
owner  of  the  property;  the  writ  also,  by 
Its  terms,  requires  the  sheriff  to  keep  safely 
the  attached  property;  and  where  the  duty 
of  safe-keeping  is  not  completely  executed 
at  the  expiration  of  the  term  of  office  of 
the  sheriff,  that  duty  devolves,  by  the 
County  Government  Act,  upon  his  suc- 
cessor in  office.  Wood  v.  Lowden,  117  Cal. 
232;  49  Pac.  132.  A  writ  under  which 
nothing  whatever  has  been  done  is  to  be 
turned  over  by  the  sheriff,  at  the  expira- 
tion of  his  term  of  office,  to  his  successor; 
but  if  it  has  been  executed,  or  if  the  out- 
going officer  has  already  begun  its  execu- 
tion, it  is  not  to  be  turned  over;  neither 
is  property  held  under  a  levy  of  the  writ 


§542 


ATTACHMENT. 


554 


in  attachment  proceedings,  which  are 
pledged  to  the  plaintiff,  is  a  trespasser, 
and  liable  to  the  pledgee  for  the  entire 
value  of  the  goods.  Treadwell  v.  Davis,  34 
Cal.  601;  94  Am.  Dec.  770.  Where,  under 
a  writ  of  attachment  against  one  person, 
an  officer  seizes  the  goods  of  another, 
which  at  the  time  are  in  the  custody  either 
of  the  owner  or  of  a  person  other  than  the 
defendant  in  the  writ,  he  is  a  trespasser 
ab  initio.  Black  v.  Clasby,  97  Cal.  482; 
32  Pac.  564. 

Protection  of  officer  by  writ.  When 
property  is  in  the  possession  of  the  de- 
fendant to  the  action,  the  writ  of  attach- 
ment alone,  if  it  is  issued  by  competent 
authority  and  is  regular  on  its  face,  pro- 
tects the  sheriff  or  constable.  Laughlin  v. 
Thompson,  76  Cal.  287;  18  Pac.  330;  Horn 
V.  Corvarubias,  51  Cal.  524.  Where  the 
aflSdavit  is  defective  the  writ  does  not 
protect  the  constable.  Hisler  v.  Carr,  34 
Cal.  641.  A  sheriff  makes  out  a  prima 
facie  case  of  justification  of  the  seizure  of 
property  by  the  production  of  the  writ  and 
the  affidavit  on  which  it  was  issued,  not- 
withstanding the  affidavit  was  originally 
insufficient  and  was  amended  subsequently 
to  the  seizure,  if  the  property  was  in  the 
possession  of  t'.e  defendant,  and  attached 
as  his  property.  Babe  v.  Coyne,  53  Cal. 
261.  The  sheriff  cannot  go  behind  a  writ, 
regular  on  its  face,  and  adjudge  the  ques- 
tion of  its  validity  on  pleadings,  affidavit, 
or  proceedings  in  the  action  in  which  it 
is  issued  (McComb  v.  Eeed,  28  Cal.  281; 
87  Am.  Dec.  115;  Harvey  v.  Foster,  64  Cal. 
296;  30  Pac.  849);  but  he  may  limit  his 
inquiries  as  to  the  validity  of  the  writ; 
and  if  it  is  regular  on  its  face,  it  will  pro- 
tect him  in  the  performance  of  his  minis- 
terial duties  in  serving  it.  Noreross  v. 
Nunan,  61  Cal.  640. 

Real  property  standing  in  name  of  de- 
fendant. In  executing  a  writ  of  attach- 
ment, the  failure  of  the  officer  to  post 
upon  the  land,  where  it  is  not  occupied,  a 
copy  of  the  description  of  the  land,  in  con- 
nection with  a  copy  of  the  writ  of  attach- 
ment, and  of  the  notice  that  the  land  had 
been  attached,  is  fatal  to  the  validity  of 
the  levy,  and  no  lien  is  created  thereon. 
Main  v.  Tappener,  3  Cal.  206;  Sharp  v. 
Baird,  43  Cal.  577;  Watt  v.  Wright,  66 
Cal.  202;  5  Pac.  91.  Where  the  land  at- 
tached is  a  lot,  vacant  except  for  a  small 
building  used  as  an  office,  posting  the 
notice  on  such  building  is  sufficient.  Davis 
V.  Baker,  72  Cal.  494;  14  Pac.  102.  The 
statute  does  not  require  that  the  papers 
shall  be  posted  in  the  most  conspicuous 
place,  but  in  a  cons|)icuous  place:  posting 
on  a  house,  within  five  or  six  feet  from  the 
street,  where  it  could  be  seen,  is  sufficient. 
Davis  V.  Baker,  88  Cal.  106;  25  Pac.  1108. 
An  attempted  levy  of  an  attachment  on 
real  property  of  a  judgment  debtor  does 
not  create  a  lien  thereon  to  which  the 
right  of  a  purchaser  at  the  execution  sale 


can  relate,  unless  a  copy  of  the  writ,  to- 
gether with  a  description  of  the  property 
attached,  and  a  notice  that  it  is  attached, 
is  left  with  an  occupant  of  the  property, 
or  posted  upon  it.  Schwartz  v.  Cowell,  71 
Cal.  306;  12  Pac.  252;  Maskell  v.  Barker, 
99  Cal.  644;  34  Pac.  340.  The  two  acts 
prescribed — the  delivery  to  the  occupant 
of  a  copy  of  the  writ,  or  the  posting  of  a 
copy  on  the  premises,  if  there  is  no  occu- 
pant, and  the  filing  of  a  copy  with  the  re- 
corder, together  with  a  description  of  the 
property  attached — must  be  done,  before 
the  lien  of  attachment  is  perfected:  the 
omission  of  either  act  is  fatal  to  the  crea- 
tion of  the  lien.  Wheaton  v.  Neville,  19 
Cal.  41;  Main  v.  Tappener,  43  Cal.  206. 
As  used  in  this  section,  the  word  "occu- 
pant" means  some  one  visibly  occupj'ing 
the  property,  so  that  when  the  officer  visits 
the  property  to  complete  the  levy,  he  can 
determine,  from  what  he  can  see,  whether 
he  shall  serve  the  copies  by  leaving  them 
with  an  occupant  or  by  posting;  under  this 
interpretation  of  the  word,  the  writ  may 
be  served  with  the  promptness  essential 
to  the  beneficial  use  of  the  writ.  Davis  v. 
Baker,  72  Cal.  494;  14  Pac.  102.  The 
property  stands  in  the  defendant's  name, 
notwithstanding  he  has  executed  a  convey- 
ance which  has  been  placed  of  record,  if 
such  conveyance  appears  upon  its  face  to 
be  void  as  being  a  trust  deed  to  convey; 
in  such  case  the  levy  of  attachment  against 
the  defendant  is  to  be  made  as  prescribed 
in  the  first  subdivision,  and  not  as  pre- 
scribed in  the  second  subdivision,  of  this 
section.  Johnson  v.  Miner,  144  Cal.  785; 
78  Pac.  240.  The  deposit  in  the  re- 
corder's office  of  a  copy  of  the  writ,  with 
a  description  of  the  property  attached,  is 
sufficient  to  operate  as  notice  of  the  lien 
to  third  parties.  Eitter  v.  Seannell,  11  Cal. 
239;  70  Am.  Dec.  775.  After  the  return 
of  the  writ  to  the  clerk's  office,  the  sheriff 
has  no  authority  to  take  any  proceedings, 
previously  omitted,  for  the  completion  of 
the  attachment:  the  writ  is  authority  to 
him  only  for  acts  performed  while  it  re- 
mains in  his  possession.  Wheaton  v.  Neville, 
19  Cal.  41.  The  decision  of  the  appel- 
late court  as  to  the  insufficiency  of  the 
testimony  to  prove  the  service  of  notice 
of  attachment  on  the  occupant  of  land  be- 
comes the  law  of  the  case  upon  a  retrial, 
and  production  of  same  testimonv.  Brusie 
V.  Gates,  96  Cal.  265;  31  Pac.  111. 

Real  property,  or  interest  therein,  held 
by  others.  Any  interest  in  land,  legal  or 
equitable,  is  subject  to  attachment  or  exe- 
cution. Fish  V.  Fowlie,  58  Cal.  373;  God- 
frey V.  Monroe,  101  Cal.  224;  35  Pac.  761; 
and  see  Logan  v.  Hale,  42  Cal.  645.  A 
leasehold  interest,  unless  the  lease  con- 
tains a  provision  against  the  assignment 
thereof,  and  specifically  provides  against 
involuntary  assignment  by  operation  of 
law,  is  attachable  (Farnum  v.  Hefner,  79 
Cal.    575;    12    Am.    St.    Rep.    174;    21   Pac. 


555 


REAL  AND  PERSONAL  PROPERTY  ATTACHED  HOW. 


§542 


955);  as  is  also  the  interest  of  a  defendant 
in  land  held  in  trust  (De  CVlis  v.  Porter, 
59  Cal.  4G4);  and  the  e(iuitable  interest  of 
the  grantor  of  a  trust  deed  to  a  recon- 
veyance of  the  land  upon  the  payment  of 
the  debt,  or  to  the  surplus  proceeds  after 
sale  (Brown  v.  Campbell,  100  Cal.  G35;  38 
Am.  St.  Eep.  314;  35  Pac.  433);  and  the 
right  of  redemption  in  real  estate,  after 
sale  on  foreclosure.  Brown  v.  Campbell, 
100  Cal.  635;  38  Am.  St.  Rep.  314;  35  Pac. 
433;  and  see  Knight  v.  Fair,  9  Cal.  117; 
McMillan  v.  Richards,  9  Cal.  365;  70  Am. 
Dec.  655;  Halsey  v.  Martin,  22  Cal.  645; 
Robinson  v.  Thornton,  102  Cal.  675;  34 
Pac.  120.  The  interest  of  a  tenant  in  com- 
mon is  attached  by  taking  possession  of 
the  entire  property  of  the  tenants  in  com- 
mon for  the  purpose  of  subjecting  to  the 
sale  tlie  interest  of  the  attachment  de- 
fendant. Veaeli  v.  Adams,  51  Cal.  609; 
and  see  Waldman  v.  Broder,  10  Cal.  379; 
Bernal  v.  Hovious,  17  Cal.  541;  79  Am. 
Dec.  147.  The  distributive  share  of  an 
heir  in  real  estate  is  liable  to  attachment, 
although,  prior  to  distribution,  such  heir 
had  conveyed  his  interest  therein,  in  good 
faith  and  for  value,  where  .the  assignee 
did  not  assert  his  right  before  the  probate 
court  and  have  the  heir's  share  distributed 
directly  to  himself.  Freeman  v.  Rahm,  58 
Cal.  111.  Lands  conveyed  in  fraud  of 
creditors,  without  consideration,  to  one  not 
a  bona  fide  purchaser,  may  be  levied  upon 
and  sold  as  if  no  conveyance  had  been 
made.  Bull  v.  Ford,  66  Cal.  176;  4  Pac. 
1175;  Anderson  v.  Goff,  72  Cal.  65;  1  Am. 
St.  Rep.  34;  13  Pac.  73.  The  interest  of  a 
miner  in  his  mining  claim  is  property,  and 
may  be  taken  and  sold  under  execution. 
McKeon  v.  Bisbee,  9  Cal.  137;  70  Am.  Dec. 
642.  A  homestead  selected  by  a  wife  out 
of  the  separate  property  of  her  husband, 
without  his  assent,  loses  its  character  as 
a  homestead  upon  his  death,  and  is  sub- 
ject to  attachment.  Weinreich  v.  Hensley, 
121  Cal.  647;  54  Pac.  254. 

Conveyance  before  completion  of  levy. 
Where,  after  the  sheriff  has  entered  upon 
the  execution  of  a  writ,  and  before  he  has 
completed  the  levy,  another  creditor  pur- 
chases the  property  from  the  attachment 
debtor,  such  creditor  takes  the  property 
free  from  any  lien  of  the  attachment;  and 
the  fact  that  such  purchasing  creditor  and 
the  debtor  knew  at  the  time  of  the  sale 
that  the  attachment  had  issued  does  not 
render  the  purchase  a  fraud  upon  the  at- 
taching creditor;  nor  is  a  conveyance  giv- 
ing a  preference  to  one  creditor  frauilulent, 
simply  because  the  debtor  is  insolvent,  and 
the  purchasing  creditor  is  aware  at  the 
time  of  the  conveyance  that  it  will  have 
the  effect  of  defeating  the  collection  of 
other  debts.  Wheaton  v.  Neville,  19  Cal. 
41;  Main  v.  Tappener,  43  Cal.  206;  Sharp 
V.  Baird,  43  Cal.  577. 

Effect  of  the  levy.  The  lien  of  the  at- 
tachment creditor  takes  effect  immediately 


upon  the  levy  of  the  attachment,  and  the 
deposit  of  a  copy  of  the  writ,  together  with 
a  description  of  the  projierty  attached, 
with  the  county  recorder.  Ritter  v.  Scan- 
nell,  11  Cal.  239;  7U  Am.  Dec.  775.  The 
writ  is  effectual  to  change  the  title  of  the 
property,  only  from  the  time  of  the  levy. 
Taffts  V.  Manlove,  14  Cal.  48;  73  Am.  Dec. 
610.  If  the  writ  is  not  legally  served, 
there  is  no  lien.  Main  v.  Tapfiener,  43  (Jal. 
206;  Sharp  v.  Baird,  43  Cal.  577.  The  lien 
of  the  attaching  creditor  does  not  depend 
upon  the  return  of  the  officer,  but  upon 
the  levy  made  by  him,  and  where  he  makes 
a  proper  levy,  but  fails  to  make  a  ](roi>er 
or  any  return,  the  attaching  creditor  can- 
not be  deprived  of  his  rights,  but  may 
show  that  a  valid  levy  was  made;  and  the 
same  is  true  of  a  purchaser  under  an  exe- 
cution, whose  title  depends  upon  the  va- 
lidity of  the  attachment  levy;  but  where 
such  proof  is  allowed,  the  evidence  must 
be  clear  and  satisfactory.  Brusie  v.  Gates, 
80  Cal.  462;  22  Pac.  284. 

Personal  property  capable  of  manual  de- 
livery. Levy  upon  personal  property  is 
the  act  of  taking  possession  of  it,  or  seiz- 
ing or  attaching  it,  bv  the  sheriff  or  other 
officer.  Taffts  v.  Manlove,  14  Cal.  48;  73 
Am.  Dec.  610.  A  levy  upon  property  al- 
ready in  the  possession  of  the  officer  by 
virtue  of  a  former  attachment,  does  not 
require  seizure  under  a  second  attachment: 
all  that  is  required  to  be  done  is  to  make 
a  return  on  the  back  of  the  attachment. 
O'Connor  v.  Blake,  29  Cal.  312.  Personal 
property  capable  of  manual  delivery  must 
be  taken  into  the  custody  of  the  sheriff, 
and  sold  after  judgment,  as  required  by 
law.  Herron  v.  Hughes,  25  Cal.  556;  Sheehy 
v.  Graves,  58  Cal.  449.  Goods  stored  in  a 
warehouse  are  sufficiently  levied  upon  by 
the  officer  taking  them  into  actual  posses- 
sion and  placing  them  in  charge  of  a 
keeper.  Sinsheimer  v.  Whitelv,  111  Cal. 
.378;  52  Am.  St.  Rep.  192;  43"  Pac.  1109. 
Where  a  sheriff  levies  on  portable  ma- 
chinery and  fittings  by  delivering  a  copy 
of  the  writ  to  the  defendant,  making  a 
memorandum  of  the  property  attached, 
and  takes  steps  to  have  persons  meddling 
therewith  notified  that  it  is  attached, 
pending  the  sending  of  a  keeper,  there  is 
a  sufficient  taking  into  custody  as  against 
the  defendant  and  persons  purchasing  from 
him  with  notice;  but  it  might  not  be  suffi- 
cient as  against  a  purchaser  in  good  faith, 
or  another  attaching  creditor.  Rogers  v. 
Gilmore,  51  Cal.  309.  The  mere  watching 
and  guarding  of  a  storehouse  does  not 
amount  to  a  levy  upon  the  property  within: 
the  levy  dates  from  the  entry  of  the  offi- 
cer into  the  house,  and  his  levy  on  the 
property  there;  and,  if,  prior  to  gaining 
admission,  other  parties  succeed  in  ac- 
quiring a  valid  lien  upon  the  property,  the 
officer  loses  his  right  to  levy.  Taffts  v. 
Manlove,  14  Cal.  48;  73  Am.  Dec.  610. 
The  property  of   tenants  i©  common  must 


§542 


ATTACHMENT. 


556 


all  be  taken  into  possession,  in  a  suit 
against  one  co-tenant,  for  the  purpose  of 
subjecting  the  undivided  interest  of  such 
co-tenant  to  the  sale  on  execution.  Veach 
V.  Adams,  51  Cal.  609.  Property  subject 
to  a  lien  cannot  be  seized  by  tlie  sheriff, 
except  upon  the  payment  of  the  amount  of 
the  lieu.  Johnson  v.  Perry,  53  Cal.  351. 
A  promissory  note,  the  property  of  the  de- 
fendant in  an  attachment  and  execution, 
is  liable  to  seizure  and  sale  thereunder. 
Davis  V.  Mitchell,  34  Cal.  81;  Donohoe  v. 
Gamble,  38  Cal.  340;  99  Am.  Dec.  399; 
Kobinson  v.  Tevis,  38  Cal.  611;  Hoxie  v. 
Brvant,  131  Cal.  85;  63  Pac.  153;  and  see 
Crandall  v.  Blen,  13  Cal.  15.  The  prop- 
erty of  a  street  railroad  company,  such  as 
cars,  tracks,  electrical  supplies,  is  liable 
to  attachment  (Risdon  Iron  etc.  Works  v. 
Citizens'  Traction  Co.,  122  Cal.  94;  68  Am. 
St.  Rep.  25;  54  Pac.  529);  as  is  also  the 
property  of  a  solvent  partnership,  in  the 
hands  of  a  receiver  appointed  in  a  suit  for 
dissolution.  Adams  v.  Woods,  9  Cal.  24. 
Property  in  the  hands  of  a  foreign  re- 
ceiver, brought  by  him  into  this  state,  is 
attachable  while  in  his  possession,  upon 
the  suit  of  a  creditor  who  is  a  citizen  of 
this  state.  Humphreys  v.  Hopkins,  81  Cal. 
555;  15  Am.  St.  Rep.  76;  6  L.  R.  A.  792; 
22  Pac.  892.  Where  one  of  several  part- 
ners sells  his  undivided  interest  in  the 
partnership  property,  the  purchase-money 
stands  in  the  place  of  the  property,  and 
is  liable  for  the  partnership  debts,  the 
same  as  the  property  for  which  it  was 
paid.  Burpee  v.  Bunn,  22  Cal.  194.  The 
attaching  creditor  can  acquire  no  greater 
right  in  attached  property  than  the  de- 
fendant had  at  the  time  of  attachment. 
Howell  V.  Foster,  65  Cal.  169;  3  Pac.  647; 
Smith  V.  Cunningham.  67  Cal.  262;  7  Pac. 
679;  Ward  v.  Waterman,  85  Cal.  488;  24 
Pac.  930. 

Shares  of  stocks.  The  w^ord  "cashier," 
as  used  in  the  fourth  subdivision  of  this 
section,  refers  to  an  executive  officer  of  a 
corporation,  as  the  cashier  of  a  bank,  and 
not  to  a  simple  employee  who  is  not  a  man- 
aging agent,  as  a  clerk  employed  in  a  store 
belonging  to  a  mining  corporation,  al- 
though he  may  have  exclusive  duties  in 
relation  to  the  custody  of  moneys,  keeping 
accounts,  and  paying  employees;  and  a 
corporation  is  not  bound  by  a  writ  deliv- 
ered to  any  of  its  agents  or  employees 
other  than  those  named  in  this  section. 
Blanc  V.  Paymaster  Mining  Co.,  95  Cal. 
524;  29  Am.  St.  Rep.  149;  30  Pac.  765. 
Where  shares  of  stock  have  been  regularly 
transferred  on  the  books  of  the  corporation 
as  security  for  a  loan,  the  mortgagee  is 
the  only  proper  garnishee.  Edwards  v. 
Beugnot',   7   Cal.    162. 

Attachment  of  unregistered  stock.  See 
note  ante,  S  541. 

Debts,  credits,  and  personal  property, 
not  capable  of  manual  delivery.  The  mode 
of  attaching  debts  and   credits,  and  other 


personal  property  not  capable  of  manual 
delivery,  as  provided  by  the  code,  is  ex- 
clusive. McBride  v.  Fallon,  65  Cal.  301; 
4  Pac.  17;  Latham  v.  Blake,  77  Cal.  646; 
18  Pac.  150;  20  Pac.  417.  A  notice  of  gar- 
nishment of  "all  moneys,  credits,  and  ef- 
fects of  defendant,"  is  not  effective  as  an 
attachment  of  a  "debt"  due  from  the  gar- 
nishee to  the  defendant.  Clyne  v.  Easton, 
148  Cal.  287;  113  Am.  St.  Rep.  253;  83  Pac. 
36.  Promissory  notes,  the  property  of  the 
defendant  in  an  attachment  and  execution, 
are  liable  to  seizure  and  sale  thereunder. 
Davis  V.  Mitchell,  34  Cal.  81;  Robinson  v. 
Tevis,  38  Cal.  611;  Gow  v.  Marshall,  90 
Cal.  565;  27  Pac.  422;  Deering  v.  Richard- 
son-Kimball Co.,  109  Cal.  73;  41  Pac.  801. 
Property  acquired  by  an  insolvent  after 
the  date  of  the  filing  of  his  petition  in  in- 
solvency, is  subject  to  attachment  upon 
his  subsequent  adjudication  in  insolvency. 
Day  V.  Superior  Court,  61  Cal.  489.  Ser- 
vice of  process  of  attachment  upon  the 
teller  of  a  banking  corporation,  whose  only 
duty  is  to  receive  and  pay  out  moneys, 
does  not  bind  the  corporation.  Kennedy 
V.  Hibernia  Sav.  &  L.  Soc,  38  Cal.  151. 
The  interest  of  a  pledgor  may  be  attached, 
but  the  pledgee  cannot  be  disturbed  in  his 
possession,  unless  by  an  order  of  the  court, 
made  after  examination,  on  such  terms  as 
may  be  just,  having  reference  to  any  liens 
thereon  or  claims  against  the  same.  Tread- 
well  V.  Davis,  34  Cal.  691;  94  Am.  Dec. 
770;  and  see  Deering  v.  Richardson-Kim- 
ball Co.,  109  Cal.  73;  41  Pac.  801;  Lilien- 
thal  V.  Ballou,  125  Cal.  183;  57  Pac.  897; 
Salinas  City  Bank  v.  Graves,  79  Cal.  192; 
21  Pac.  732.  Mortgaged  personal  property 
is  attachable  at  the  suit  of  a  creditor  of 
the  mortgagor;  but,  before  the  property  is 
taken,  the  officer  must  pay  or  tender  to 
the  mortgagee  the  amount  of  the  mort- 
gage. Wood  V.  Franks,  56  Cal.  217;  Ber- 
son  V.  Nunan,  63  Cal.  550;  Wood  v.  Franks, 
67  Cal.  32;  7  Pac.  50;  Meherin  v.  Oaks,  67 
Cal.  57;  7  Pac.  47;  Irwin  v.  McDowell,  91 
Cal.  119;  27  Pac.  601.  The  interest  of  a 
mortgagor  is  liable  to  attachment,  whether 
the  instrument  evidencing  the  security  be 
ordinary  mortgage  or  deed  of  trust  and 
defeasance.  Halsey  v.  Martin,  22  Cal.  645; 
Godfrey  v.  Monroe,  101  Cal.  224;  35  Pac. 
761.  The  attachment  of  the  interest  of  a 
mortgagor  after  foreclosure  of  the  mort- 
gage, and  before  the  execution  of  the  deed, 
reaches  only  the  right  of  redemption  of 
the  mortgagor,  and  the  lien  of  the  attach- 
ment is  extinguished  by  the  deed.  Robin- 
son V.  Thornton,  102  Cal.  675;  34  Pac.  120. 
The  interest  of  a  partner  in  the  partner- 
ship property  is  attachable.  Robinson  v. 
Tevis,  38  Cal.  611;  Isaacs  v.  .Tones,  121 
Cal.  257;  53  Pac.  793.  Partnership  effects, 
in  the  hands  of  a  receiver  appointed  in  a 
suit  for  dissolution,  may  be  attached  in  a 
suit  of  the  creditor  of  the  partnership  at 
any  time  before  the  decree  of  dissolution 
and    order    for    pro    rata    distribution    are 


557 


DEBTS,  CREDITS,  ETC — FEES  AND  EXPENSES  OF  OFFICER. 


§542 


made,  and  such  creditor  may  thereby  se- 
cure a  preference  or  lien  upon  the  [jartner- 
ship  assets.  Adams  v.  Woods,  9  Cal.  24; 
Adams  V.  Woods,  8  Cal.  152;  68  Am.  Dec. 
313;  and  see  Adams  v.  Haskell,  6  Cal.  113; 
6.3  Am.  Dec.  491.  Where  a  receiver  of  a 
jiartnership  property  was  appointed  prior 
to  a  levy  of  attachment  on  the  interest  of 
an  individual  partner,  the  sheriff  is  not 
entitled  to  take  possession  of  the  partner- 
ship property  from  the  receiver;  but  if 
the  attaching  creditor  obtains  judgment 
against  such  partner,  and  sells  his  interest 
in  the  partnership,  the  purchaser  is  en- 
titled to  receive  whatever  may  be  found 
to  belong  to  such  partner.  Isaacs  v.  Jones, 
121  Cal.  257;  53  Pac.  793.  Where  a  part- 
ner conveyed  partnership  property  to  a 
trustee,  for  his  wife,  in  fraud  of  the  credi- 
tors of  the  partnership,  the  proceeds  of 
the  sale  of  such  property  are  liable  to  gar- 
nishment. Burpee  v.  Bunn,  22  Cal.  194. 
Crops  grown  by  the  adverse  possessor  of 
lands  cannot  be  attached  as  the  property 
of  the  legal  owner  of  the  land.  Smith  v. 
Cunningham,  67  Cal.  262;  7  Pac.  679.  A 
crop  abandoned  by  a  lessee,  and  harvested 
by  the  lessor  at  an  expense  exceeding  the 
value  thereof,  is  not  attachable  by  the 
creditors  of  the  lessee.  Charles  v.  Davis, 
59  Cal.  479.  A  crop  raised  by  a  tenant 
of  land,  who  holds  under  a  lease  contain- 
ing a  covenant  that  the  entire  crop  shall 
be  the  property  of  the  landlord  until  all 
advances  made  by  him  to  the  tenant  shall 
be  paid,  is  not  subject  to  attachment  by 
a  creditor  of  the  tenant  while  such  ad- 
vances remain  unpaid.  Howell  v.  Foster, 
65  Cal.  169;  3  Pac.  647.  A  growing  crop 
is  personal  property  not  capable  of  man- 
ual delivery,  and  is  liable  to  attachment; 
and  service  upon  the  person  in  possession, 
by  leaving  with  him  a  copy  of  the  writ 
and  statutory  notice,  is  sufficient  until  the 
crop  matures,  when  the  officer  may  take 
it  into  his  custody.  Raventas  v.  Green,  57 
Cal.  254;  Cardenas  v.  Miller,  108  Cal.  250; 
49  Am.  St.  Rep.  84;  39  Pac.  783;  Rudolph 
y.  Saunders,  111  Cal.  233;  43  Pac.  619;  and 
see  Davis  v.  McFarlane,  37  Cal.  634;  99 
Am.  Dec.  340.  A  cropper's  interest  in  a 
growing  crop,  under  a  contract  to  work 
the  land  on  shares,  is  liable  to  attachment; 
and  to  effect  this,  possession  of  the  entire 
quantity  of  the  crop  may  be  taken,  and 
the  purchaser  at  the  execution  sale  be- 
comes a  tenant  in  common  with  the  owner 
of  the  other  undivided  interest.  Bernal 
V.  Hovious,  17  Cal.  541;  79  Am.  Dee.  147. 
Where,  by  the  terms  of  a  contract,  the  en- 
tire crop  was  to  belong  to  the  owner  of 
the  land  until  division,  and  to  be  security 
for  any  indebtedness  to  such  owner,  the 
interest  of  the  cropper  becomes  liable  to 
attachment,  when,  upon  division,  he  de- 
livers to  such  owner  his  due  proportion, 
and  the  remainder  is  in  possession  of  the 
cropper,  although  still  on  the  land  of  such 
owner,  who  still  claims  a  lien  foi   indebt- 


edness, but  who  cannot  maintain  a  secret 
lien  upon  the  share  of  the  cropper,  ('rocker 
V.  Cunningham,  122  Cal.  547;  55  Pac.  404. 
Where  a  growing  crop  was,  by  the  terms 
of  a  lease,  to  remain  the  property  of  the 
lessor  until  the  harvesting  and  division 
thereof,  and  the  lessee  had  no  right  to  dis- 
pose of  or  to  encumber  the  same  or  any 
portion  thereof,  but  was  to  receive  a  cer- 
tain portion  upon  delivery  of  the  whole  to 
the  lessor,  the  lessee  has  an  interest  in  the 
grain  subject  to  attachment,  notwithstand- 
ing the  specific  jirovision  in  the  lease  that 
title  to  crop  should  remain  in  tlic  lessor 
until  the  division  thereof.  Farnum  v.  Hef- 
ner, 79  Cal.  575;  12  Am.  St.  Rep.  174;  21 
Pac.  955;  Stockton  Sav.  &  L.  Soc.  v.  Pur- 
vis, 112  Cal.  226;  53  Am.  St.  Rep.  210;  44 
Pac.  561.  An  attachment  upon  a  growing 
crop  in  the  possession  of  the  defendant  is 
sufficiently  levied  by  serving  upon  him 
copies  of  the  writ  and  statutory  notice; 
and  there  is  no  abandonment,  where  the 
sheriff,  when  the  crop  matures,  harvests 
and  takes  it  into  his  custody.  Raventas 
V.  Green,  57  Cal.  254;  Cardenas  v.  Miller, 
108  Cal.  250;  49  Am.  St.  Rep.  84;  39  Pac. 
783.  The  estate  of  a  prisoner  may  be  at- 
tached, where  he  is  imprisoned  for  a  term 
less  than  his  natural  life.  Estate  of  Nerac, 
35  Cal.  392;  95  Am.  Dec.  111.  The  prop- 
erty of  a  prisoner  under  sentence  of  life 
imprisonment,  taken  and  held,  upon  his  re- 
quest, by  a  chief  of  police  as  bailee,  and 
not  in  his  official  capacity,  is  attachable; 
and  the  court  has  jurisdiction  to  enforce 
execution  against  such  property,  although 
the  judgment  in  the  civil  action  was  net 
entered  against  the  prisoner  until  after 
his  civil  death.  Coffee  v.  Haynes,  124  Cal. 
561;  71  Am.  St.  Rep.  99;  57  Pac.  482. 

Costs,  expenses,  arid  fees  of  officer. 
Where  the  levy  is  properly  made,  the  offi- 
cer is  entitled  to  his  legal  fees,  and  the 
attaching  creditor  must  pay  them,  and 
notice  from  the  sheriff  that  the  levy  has 
been  made  is  not  required  (Alexander  v. 
Denaveaux,  59  Cal.  476);  and  where  an 
attachment  is  levied  upon  several  pieces 
of  real  estate,  the  sheriff  is  entitled  to 
fees  for  each  levy.  Young  v.  Miller,  63 
Cal.  302.  The  sheriff  is  the  agent  of  the 
plaintiff  in  levying  an  attachment,  and  the 
plaintiff  cannot  relieve  himself  from  lia- 
bility for  expenses  incurred  in  such  agency 
by  the  dismissal  of  the  action,  or  the  mere 
direction  to  release  the  property;  neither 
can  the  parties  to  the  action,  by  an  agree- 
ment between  themselves  for  its  dismissal, 
deprive  the  sheriff  of  his  fees,  nor  com- 
pel him  to  look  to  the  solvency  or  caprice 
of  the  plaintiff  therefor:  for  the  purpose 
of  protecting  the  sheriff  against  such  con- 
tingencies, it  is  provided  by  statute  that 
he  may  retain  the  property  levied  on  under 
the  attachment  until  his  fees  and  expenses 
are  paid.  Perrin  v.  McMann,  97  Cal.  52; 
31  Pac.  837.  Where  the  property  attached 
is    portable,    though     some    of    it    may    be 


§542 


ATTACHMENT. 


558 


classed  as  fixtures,  the  sheriff  is  entitled 
to  necessary  costs  for  safely  keeping  the 
same.  Nisbet  v.  Clio  Mining  Co.,  2  Cal. 
App.  436;  83  P^c.  1077.  Keeper's  fees, 
and  expenses  of  keeping  and  preserving 
the  property  held  under  attachment,  can- 
not be  collected  b}'  the  sheriff,  unless  the 
court  from  which  the  writ  issues  certifies 
that  the  charges  are  just  and  reasonable. 
Geil  V.  Stevens,  48  Cal.  590;  Lane  v.  Mc- 
Elhany,  49  Cal.  421;  Bower  v.  Rankin,  61 
Cal.  lOS;  Shumway  v.  Leakey,  73  Cal.  260; 
14  Pac.  S41.  Expenditures  made  by  the 
sheriff  for  fire-insurance  premiums  on 
property  attached  are  not  proper  items  of 
cost.  Galindo  v.  Eoach,  130  Cal.  3S9;  62 
Pac.  597.  A  deputy  sheriff  is  not  au- 
thorized to  bind  the  sheriff  by  contract 
for  the  payment  of  the  keeper's  fees. 
Krum  V.  King,  12  Cal.  412. 

Situs  of  property  for  purpose  of  garnishnieiit. 
See  note   69   Am.   St.   Kep.   113. 

Levy  of  and  what  essential  to  levy  attachment. 
See  note  21  Am.  Dec.  677. 

Levy  of  attachment  as  subject  to  collateral  at- 
tack.   See  note  Ann.   Cas.   1913C,   146. 

CODE  COMMISSIONEKS'  NOTE.      1.  Duty  of 

sheriff,  generally.  The  presumptions  are  thai  the 
officer  faithfully  performs  his  duty.  Turner  v.  Bil- 
lagram,  2  Cal.  520;  Ritter  v.  Scannell,  11  Cal. 
238;  70  Am.  Dec.  775.  An  officer,  after  entering 
upon  the  execution  of  an  attachment,  must  com- 
plete its  execution  with  diligence.  Wheaton  v. 
Neville,  19  Cal.  41.  An  officer  who  levies  a  writ 
of  attachment  upon  personal  property,  in  obedi- 
ence to  the  commands  of  the  writ,  has  no  right  to 
let  the  property  go  out  of  his  hands,  except  iu  the 
course  of  law,  and  if  he  does,  and  the  debt  is  lost, 
he  is  responsible  to  the  plaintiff  for  the  amount 
of  the  debt.  Nor  will  the  oral  instruction  of  the 
plaintiff  in  an  attachment  or  execution,  respect- 
ing property  seized  by  the  sheriff  under  either 
writ,  discharge  such  sheriff  from  liability.  The 
statute  is  express  that  such  instruction  must  be 
in  writing.  Sandford  v.  Boring,  12  Cal.  539. 
Where  one  writ  was  placed  in  the  sheriff's  hands 
on  Sunday,  and  another  against  the  same  defend- 
ant was  placed  in  the  htnds  of  a  deputy  at  a 
quarter  past  twelve  on  Monday  morning,  the  sher- 
iff not  knowing  the  fact,  and  the  first  levy  was 
made  under  the  writ  at  one  o'clock  Monday  morn- 
ing, it  was  held  that  the  sheriff  was  not  guilty 
of  negligence  in  executing  the  first,  no  special 
circumstances  being  shown.  Whitney  v.  Butter- 
field,  13  Cal.  335;  73  Am.  Dec.  584.  Where  an 
officer,  by  virtue  of  a  second  attachment,  levies  on 
property  in  his  possession  by  virtue  of  a  former 
attachment,  it  is  only  necessary  for  him  to  return 
that  he  has  attached  the  interest  of  the  defend- 
ant in  the  property  then  in  his  possession.  O'Con- 
nor V.  Blake,  29  Cal.  312.  If  the  sheriff  take 
property  which  does  not  belong  to  the  defendant, 
the  taking  is  tortious,  whether  the  property  was 
in  the  possessicn  of  defendant  or  not.  Wellman 
V.  English,  38  Cal.  583.  Where  the  complaint 
contains  no  allegation  that  the  levy  was  excessive, 
in  an  action  ajiainst  a  sheriff  for  the  recovery  of 
personal  property  alleged  to  have  been  improp- 
erly attached,  the  plaintiff  cannot  avail  himself  of 
the  fact  that  the  evidence  showed  the  levy  was 
excessive.    Sexey  v.  Adkison,  40  Cal.  408. 

2.  Levy  upon  real  property.  The  presumptions 
are  in  favor  of  the  regularity  of  the  acts  of  the 
officer,  and  a  return  which  simply  states  that  the 
property  was  attached  is  sufficient,  prima  facie, 
to  shoA-  a  due  and  proper  execution  of  the  writ. 
Our  stntute  prescribes  the  manner  in  which  real 
estate  may  be  attached,  but  contains  no  provision 
requiring  that  all  the  acts  necessary  to  a  levy 
should  be  set  out  in  the  return.  Nor  is  it  neces- 
sary, when  the  levy  is  made  by  posting  a  copy  of 
the  wri;  on  the  premisei).  that  the  return  of  the 
sheriff  should  show  that  the  premises  were  at  the 


time  unoccupied.  Ritter  v.  Scannell,  11  Cal.  248; 
70  Am.  Dec.  775.  An  attachment  of  real  prop- 
erty is  not  perfected  until  both  the  acts  prescribed 
by  statute,  to  wit,  delivery  to  the  occupant  of  a 
copy  of  the  writ,  or  posting  a  copy  upon  the 
premises,  if  there  be  no  occupant,  and  the  filing 
of  a  copy  with  the  recorder,  together  with  a  de- 
scription of  the  property  attached,  are  performed. 
The  omission  of  either  act  is  fatal  to  the  creation 
of  a  lien.  Thus,  where  a  writ  of  attachment  was 
issued  on  the  26th  of  August,  and  a  copy  de- 
livered to  the  occupant  of  the  premises,  or  posted 
upon  them,  on  the  29th  of  that  month,  and  on 
the  same  day  the  writ  was  returned,  and  filed  in 
the  clerk's  office,  but  no  copy  of  the  writ,  with 
a  description  of  the  property,  was  filed  with  the 
recorder,  until  the  9th  of  September  following, 
it  was  held,  that,  after  the  return  of  the  writ  to 
the  clerk's  office  on  the  29th  of  August,  the  sher- 
iff had  no  authority  to  take  any  proceedings  for 
the  completion  of  the  attachment,  previously 
omitted;  that  the  writ  was  authority  to  him,  only 
for  acts  performed  while  it  remained  in  his  pos- 
session, and  hence,  that  another  creditor  of  the 
debtor,  purchasing  the  property  from  the  latter 
on  the  6th  of  September,  took  it  free  from  any 
lien  of  the  attachment.  Wheaton  v.  Neville,  19 
Cal.  41. 

3.  Lien  of  attachment  attaches  on  personal 
property,  only  from  the  time  of  levy.  Taffts  v. 
Manlove,  14  Cal.  47;  73  Am.  Dec.  610.  On  real 
estate,  immediately  upon  the  levy  of  the  attach- 
ment and  the  deposit  of  a  copy  of  the  writ,  to- 
gether with  a  description  of  the  land  attached, 
with  the  county  recorder.  Ritter  v.  Scannell,  11 
Cal.  238;  70  Am.  Dec.  775.  If,  after  the  levy 
of  an  attachment  and  before  judgment,  the  de- 
fendant dies,  his  death  destroys  the  lien  of  the 
attachment,  and  the  property  passes  into  the  hands 
of  the  administrator,  to  be  administered,  or  in 
due  course  of  administration.  Myers  v.  Mott,  29 
Cal.  359;  89  Am.  Dec.  49.,  Where  the  first  at- 
tachment against  an  insolvent  is  set  aside  as 
fraudulent,  in  a  suit  brought  by  a  subsequent 
creditor,  to  which  various  other  attaching  credi- 
tors, prior  and  subsequent,  are  parties,  the  plain- 
tiff in  the  suit  cannot  claim  priority  over  the 
attachments  orecedins:  his,  on  the  ground  that  by 
his  superior  diligence  the  fraud  was  discovered. 
The  prior  attachments  became  liens  in  the  nature 
of  a  legal  estate  vested  in  the  sheriff  for  the  bene- 
fit of  the  creditors.  Patrick  v.  Montader,  13  Cal. 
444.  The  lien  of  firm  creditors  is  preferred  Jo 
the  lien  of  an  individual  creditor  of  the  remain- 
ing partner  attaching  first.  Conroy  v.  Woods,  13 
Cal.  631;  73  Am.  Dec.  605.  A  lien  by  attachment 
enables  a  creditor  to  file  a  creditor's  bill,  without 
judgment  and  execution.  Conroy  v.  Woods,  13 
Cal.  626;  73  Am.  Dec.  605.  Plaintiff,  January 
10,  1858,  in  a  suit  entitled  C.  and  M.  and 
others,  composing  the  Wisconsin  Quartz  Mining 
Co.  (a  corporation),  attached  a  quartz  mill  and 
ledge  belonging  to  the  corporation.  June  28, 
1858,  the  complaint  was  amended  so  as  to  make 
the  corporation,  as  such,  the  party  defendant,  and 
judgment  was  rendered  against  the  company  Au- 
gust 14,  1858,  the  property  sold,  the  plaintiff 
becoming  the  purchaser.  October  7,  1857,  W.  re- 
ceived from  the  corporation  a  chattel  mortgage  on 
this  property,  had  decree  of  foreclosure  August 
9,  1858,  followed  by  a  sale  in  October  following, 
W.  becoming  the  purchaser.  Defendants  here  are 
in  possession  under  sheriff's  sale  on  the  decree. 
Plaintiff  claims  title  under  his  judgment  and  sale. 
It  was  held,  that  he  could  not  recover;  that  he 
acquired  no  lien  by  the  attachment,  because  the 
property  attached  belonged  to  the  corporation, 
which  was  not  a  party  to  the  suit  until  after  the 
levy  and  return  of  the  writ;  that  plaintiff's  rights 
attach  only  from  the  date  of  his  judgment,  August 
14,  1858,  and  his  lien  being  subsequent  to  the 
lien  of  W.'s  judgment,  August  9,  1858,  under 
which  defendants  claim,  the  latter  have  the  better 
right.  Collins  v.  Montgomery,  16  Cal.  398.  T. 
commenced  suit  against  J. ;  a  writ  of  attachment 
was  levied  upon  certain  personal  property  by  the 
plaintiff  H.,  as  sheriff.  M.  .J.,  wife  of  J.,  claimed 
the  property  as  a  sole  trader,  and  brought  her 
action  of  replevin  for  the  property,  and  obtained 
possession  of  the  same,  by  the  delivery  of  an  un- 
dertaking as  required  by  law.     The  undertaking 


559  LIEN — DUTY    OP    SHERIFF GARNISHEE    LIABLE    WHEN.       §§  542a-544 

was  executed  by  defendants   R.   «nd   S.     The  re-  fluently.    Webster  y.  Ilaworth,  8  Cal.  21;  68  Am. 

picvin    suit    was    decided    Kcljruary    5,     1855,    in  Dec.  2M7. 

f;ivor  of  H.      T.  obtained  judRniont  in  the  attach-  4.  Garnisbment.    See   note   to  §  544.      Where   a 

ment    suit    apainst    J.,    November    30,    185-1.      On  debtor   trauhfers   personal   property   to   a   creditor, 

the    18lh   of   February,    1855,   executions   in   favor  to  be  sold  by  him  and  the  proceeds  applied  to  the 

of  other  creditors  of  J.  cominf:  into  the  hands  of  payment   of  his  debts  and  debts   of   certain   other 

II.,   as  sheriff,   he   levied   them   on   the   same   prop-  creditors,   with   their  consent,    the   transferee   and 

erly,  and  subsequently  sold  the  property  and  paid  those  he  represents  acfiuire  a  lien  upon   the  prop- 

the    proceeds    into    court.      II.    then    brought    this  erty  and  its  proceeds  sujierior  to  any  which  other 

suit  against  the  sureties  in  the  replevin  bond.      It  creditors  could  acquire  \>y  the  subsequent  levy  of 

was    held    that    the    lien    of    T.'s    attachment    con-  an  altaehment  or  other  process  thereon.    Uandley 

tinued    after   the   replevy   of   the   goods   by    M.    J.  v.  Pfisler,  39  Cal.  283;   2  Am.  Rep.  449.      The  lien 

Hunt   V.   Robinson,    11    Cal.   2G'J.      The   lien   of   an  of   an    attachment   upon   real    property    is    mcrced 

attachment  upon  funds  in  the  hands  of  a  receiver  in  that  of  the  judRraenf,  and  has  no  effect,  except 

follows   the   property   in   the   hands   of   his   succes-  to  confer  a   priority   in   the   lien  of   the  judgment, 

sors.    Adams  v.  Woods,  9  Cal.  29.      The  return  on  and   does   not   revive    upon    the    expiration    of    the 

an  attachment  cannot  be   amended   so   as   to   post-  two  years'  lien  of  the  judgment.    Bagley  t.  Ward, 

pone     the     rights    of    creditors    attaching    subse-  37  Cal.  121 ;  99  Am.  Dec.  256. 

§  542a.  Lien  of  attachment.  The  attachment  whether  heretofore  levied 
or  hereafter  to  be  levied  shall  be  a  lien  upon  all  real  property  attached  for 
a  period  of  three  years  after  the  date  of  levy  unless  sooner  released  or 
diseharjied  as  provided  in  this  chapter,  by  dismissal  of  the  action  or  by 
entry  and  docketing  of  judgment  in  the  action.  At  the  expiration  of  three 
years  the  lien  shall  cease  and  any  proceeding  or  proceedings  against  the 
property  under  the  attachment  shall  be  barred ;  provided,  that  upon  motion 
of  a  party  to  the  action,  made  not  less  than  five  nor  more  than  sixty  days 
before  the  expiration  of  said  period  of  three  years,  the  court  in  which  the 
action  is  pending  may  extend  the  time  of  said  lien  for  a  period  not  exceed- 
ing two  years  from  the  date  on  which  the  original  lien  would  expire,  and  the 
lien  shall  be  extended  for  the  period  specified  in  the  order  upon  the  filing, 
before  the  expiration  of  the  existing  lien,  of  a  certified  copy  of  the  order  with 
the  recorder  of  the  county  in  which  the  real  property  attached  is  situated. 
The  lien  may  be  extended  from  time  to  time  in  the  manner  herein  prescribed. 

Legislation  §  542a.     1.   Added  by  Stats.  1909,  Attachment    lien    not    perfected    by    judgment 

p.  749.  during    husband's    lifetime    as    prior    to    widow's 

2.  Amended  by   Stats.   1915,   p.   201,    (1)    in  share  in  estate.      See  note  Ann.  Cas.  1913A,  ;)4;t. 

first     sentence,     inserting     "whtther     heretofore  Divestiture   of   attachment   lien   by    subsequent 

levied    or    hereafter    to    be    levied";     (2)    in    the  occupation  of  land  for  homestead  purposes.      See 

proviso,    inserting    "before   the    expiration   of    the  note  Ann.  Cas.  191  315,  1149. 

existing  lien."  Attachment   not   prosecuted   to   judgment   as  a 

_..           ,                ,.            -..it         ...  conclusive    election    of    remedies.      See    note    34 

Origin  and  general  nature  of  attachment  lien.  t    j^j    .^   (N  s  )  309 

See  note  39  Am.  Dec.  606.  .     .  -  .  \.    .     .  j 

§  543.  Attorney  to  give  written  instructions  to  sheriff  what  to  attach. 
Upon  receiving  information  in  writing  from  the  plaintiflf  or  his  attorney, 
that  any  person  has  in  his  possession,  or  under  his  control,  any  credits  or 
other  personal  property  belonging  to  the  defendant,  or  is  owing  any  debt 
to  the  defendant,  the  sheriff  must  serve  upon  such  person  a  copy  of  the  writ, 
and  a  notice  that  such  credits,  or  other  property  or  debts,  as  the  case  may 
be,  are  attached  in  pursuance  of  such  writ. 

Legislation  8  543.      Enacted   March   11,   1872;  same,  or  the  secretary,  cashier,  or  other  manacing 

based  on  Practice  Act,  §  126.  agent  thereof.      In  case  of  a  banking  corporation, 

^^■r,^    «^,^„„^-r«»T^.„c.   -.-r^™^       ..,     .    ,,  service   ol    process   on    the   teller   is   not    sufficient. 

CODE    COMMISSIONERS'   NOTE.      To   hold   a  Kennedy  v.   Hibernia  Sav.  &  L.  Soc  ,  38  Cal     151. 

corporation  as  garnishee,  the  writ  and  notice  must  An    ex-sheriff    is    served    as    a    private    individual, 

be   served  on  the  president,   or  other  head  of  the  Graham  v.  Endicott,  7  Cal.  144. 

§  544.  Garnishment,  when  garnishee  liable  to  plaintiff.  All  persons  hav- 
ing in  their  possession,  or  under  their  control,  any  credits  or  other  personal 
property  belonging  to  the  defendant,  or  owing  any  debts  to  the  defendant 
at  the  time  of  service  upon  them  of  a  copy  of  the  writ  and  notice,  as  pro- 
vided in  the  last  two  sections,  shall  be,  unless  such  property  be  delivered 
up  or  transferred,  or  such  debts  be  paid  to  the  sheriff,  liable  to  the  plaintiff 
for  the  amount  of  such  credits,  property,  or  debts,  until  the  attachment  be 
discharged,  or  any  judgment  recovered  by  him  be  satisfied. 


§544 


ATTACHMENT. 


560 


Similar  provision  as  to  execution.    Post,  §  716. 
Legislation  §  544.      Enacted   March   11,    1872; 
re-enactment  of  Practice  Act,  §  127. 

Garnishment.  Although  partially  regu- 
lated by  statute,  yet  garnishment  is  none 
the  less  a  common-law  proceeding.  Cahoon 
V.  Levy,  5  Cal.  294.  Garnishment  is  the 
service  of  a  writ  of  attachment  upon  per- 
sonal property  in  the  possession  of  persons 
other  than  the  defendant  in  the  writ,  to 
secure  the  credits,  debts,  etc.,  in  the  hands 
of  such  third  persons;  and  by  the  service 
in  the  manner  provided  by  statute,  whether 
termed  "garnishment"  or  "service  of  at- 
tachment," while  the  possession  is  not 
necessarily  disturbed,  yet  a  lien  is  obtained 
on  the  defendant's  title  to  the  property  in 
the  hands  of  the  garnishee.  Kimball  v. 
Eichardson-Kimball  Co.,  Ill  Cal.  3S6;  43 
Pac.  1111.  The  contract  liability  is  not 
converted,  by  the  garnishment,  into  a 
statutory  liability:  the  sole  effect  of  the 
garnishment  is  to  work  a  contingent  trans- 
fer of  the  alleged  indebtedness  from  the 
creditor  to  the  garnisher,  without  any 
change  in  the  nature  of  the  liability. 
Clyne  v.  Easton,  148  Cal.  287;  113  Am.  St. 
Eep.  253;  83  Pac.  36.  In  an  action  against 
a  garnishee  by  his  creditor,  the  only  effect 
of  the  garnishment  is  to  suspend  the  pro- 
ceedings: it  is  not  a  bar  to  the  action. 
McFadden  v.  O'Donnell,  18  Cal.  160;  Pier- 
son  V.  McCahill,  21  Cal.  122;  McKeon  v. 
McDermott,  22  Cal.  667;  83  Am.  Dec.  86. 
A  garnishment  is  no  defense  to  an  action 
of  the  defendant  against  a  garnishee  while 
the  attachment  still  remains  pending  and 
undetermined.  Glugermovich  v.  Zicovich, 
113  Cal.  64;  45  Pac.  174.  An  admission 
of  the  garnishee,  consisting  of  a  pencil- 
entry,  after  service  of  the  notice,  made  in 
his  ledger,  by  a  book-keeper,  on  the 
margin  of  his  account  with  an  attachment 
debtor,  showing  that  it  was  "attached"  on 
the  day  of  service,  and  a  statement  of  the 
garnishee  to  such  debtor,  that  the  debt  was 
attached,  as  an  excuse  for  refusing  further 
payments,  though  evidence  of  such  attach- 
ment, is  not  conclusive,  and  may  have  been 
nothing  more  than  the  expression  of  an 
erroneous  opinion  as  to  the  effect  of  the 
notice  of  attachment  served  by  the  sheriff, 
and  the  garnishee  is  not  thereby  estopped 
from  showing  that  the  notice  of  the  gar- 
nishment attached  merely  "all  moneys, 
credits,  and  effects,"  and  did  not  include 
"debts."  Clyne  v.  Easton,  148  Cal.  287; 
113  Am.  St.  Rep.  253;  83  Pac.  36.  The 
lien  of  a  plaintiff,  obtained  by  his  attach- 
ment upon  notes,  fastens  itself  not  only 
upon  the  notes,  but  also  upon  the  proceeds 
thereof  when  collected.  Robinson  v.  Tevis, 
38  Cal.  611. 

Tlie  garnishee.  An  administrator  may 
be  garnished,  after  decree  of  distribution 
(Estate  of  Nerac,  35  Cal.  392;  95  Am. 
Dec.  Ill;  Dunsmoor  v.  Furstenfeldt,  88 
Cal.  522;  22  Am.  St.  Rep.  331;  12  L.  R.  A. 
508;  26  Pac.  518);  and  a  bailee  is  liable 


to  garnishment.  Chandler  v.  Booth,  11 
Cal.  342;  Hardy  v.  Hunt,  11  Cal.  343;  70 
Am,  Dec.  787.  A  school  district  is  not  a 
"person,"  within  the  meaning  of  the  fifth 
subdivision  of  §  542,  ante,  and  is  not  liable 
to  be  served  as  a  garnishee.  Skellv  v. 
Westminster  School  Dist.,  103  Cal.  652';  37 
Pac.  643;  Witter  v.  Mission  School  Dist., 
121  Cal.  350;  66  Am.  St.  Rep.  33;  53  Pac. 
905.  An  assignee  for  the  benefit  of  credi- 
tors is  not  liable  to  garnishment,  unless 
the  assignment  is  subject  to  impeachment. 
Heeht  v.  Green,  61  Cal.  269.  The  gar- 
nishee has  the  right,  which  may  be  volun- 
tarily exercised,  to  protect  himself  from 
all  further  liability,  by  delivering  the  prop- 
erty to  the  sheriff  (Roberts  v.  Landecker, 
9  Cal.  262;  Robinson  v.  Tevis,  38  Cal.  611); 
and  he  may  pay  the  attached  money  into 
court,  where  there  are  conflicting  liens. 
Wheatley  v.  Strobe,  12  Cal.  92;  73  Am. 
Dec.  522;  Maier  v.  Freeman,  112  Cal.  8;  53 
Am.  St.  Rep.  151;  44  Pac.  357.  He  is  not 
required,  and  he  has  no  right,  to  appear 
in  the  action:  the  only  answer  he  makes 
is  to  the  sheriff,  at  the  time  of  the  service 
of  the  writ,  and  that  relates  only  to  the 
property  actually  attached,  which  he  has 
in  his  possession  or  under  his  control. 
Clyne  v.  Easton,  148  Cal.  287;  113  Am. 
St.  Rep.  253;  83  Pac.  36.  Where  the  gar- 
nishee is  sued  by  the  defendant  in  an 
attachment  suit,  he  may,  by  atfidavit  or 
other  appropriate  means,  apply  for  a  stay 
of  the  proceedings  until  the  action  of  the 
attaching  creditor  can  be  disposed  of,  or 
the  court  may  allow  the  cause  to  proceed 
to  judgment,  and  stay  execution  upon 
enough  to  provide  for  satisfaction  of  the 
demand  for  which  the  debtor  is  garnished. 
Glugermovich  v.  Zicovich,  113  Cal.  64;  45 
Pac.  174;  McKeon  v.  McDermott,  22  Cal. 
667;  S3  Am.  Dec.  86.  The  garnishee  should 
be  permitted  to  amend  his  answer,  when- 
ever he  has  committed  a  mistake  or  fallen 
into  an  error  which  could  not  reasonably 
have  been  avoided.  Smith  v.  Brown,  5 
Cal.  118.  A  garnishee  who  received  the 
property  of  the  defendant  from  a  former 
pledgee,  guaranteeing  payment  of  the  de- 
fendant's debt  to  such  pledgee,  and  who 
paid  the  same  before  the  levy  of  attach- 
ment, is  entitled  to  a  lien  for  the  debt  of 
the  defendant  to  himself,  and  also  for  the 
amount  paid  upon  the  defendant's  indebt- 
edness to  the  former  pledgee.  Treadwell 
v.  Davis,  34  Cal.  601;  94  Am.  Dec.  770. 
Where  the  garnishee  denied  both  the  at- 
tachment and  the  debt,  and  pleaded  the 
bar  of  the  statute  of  limitations,  he  cannot 
be  deprived  of  his  right  to  plead  the 
statute,  as  against  the  plaintiff,  on  the 
ground  that  the  attachment  debtor,  whose 
interest  was  adverse,  had  conceded  the 
validity  of  the  attachment.  Clyne  v. 
Easton,  148  Cal.  287;  113  Am.  St.  Rep. 
253;  83  Pac.  36. 

Debts  and  credits.     A  "debt"  is  money 
owing  by  the  garnishee  to  the  defendant, 


561 


DEBTS,  CREDITS,  EQUITABLE  EIGHTS,  ETC. — BANK  DEPOSITS. 


§544 


which  may  be  paid  over  to  the  sheriflF; 
while  "credits"  are  something  belonging 
to  the  defendant,  but  in  the  possession  and 
under  the  control  of  the  garnishee,  such 
as  promissory  notes  or  other  evidences  of 
indebtedness  of  third  parties,  which  may 
be  delivered  up  or  transferred  to  the  sher- 
iff. Gow  V.  Marshall,  90  Cal.  565;  27  Pac. 
422;  and  see  Davis  v.  Mitchell,  34  Cal.  81; 
Kobinson  v.  Tevis,  38  Cal.  611;  Deering 
v.  Kichardson-Kimball  Co.,  109  Cal.  73; 
41  Pac.  801.  The  word  "debt,"  as  used 
in  the  law  of  garnishment,  includes  only 
legal  debts,  causes  of  action  upon  which 
the  defendant  in  the  attachment,  under 
the  common-law  practice,  can  maintain  an 
action  of  debt  or  indebitatus  assumpsit, 
and  not  mere  equity  claims.  Ilassio  v. 
G.  I.  W.  U.  Congregation,  35  Cal.  378; 
Eedondo  Beach  Co.  v.  Brewer,  101  Cal.  322; 
35  Pac.  896.  Any  kind  of  obligation  of 
one  to  pay  money  to  another  is  a  debt:  a 
debt  signifies  what  one  owes,  and  there 
is  always  some  obligation  that  it  shall 
be  paid;  but  the  manner  of  payment,  or 
the  means  of  coercing  payment,  does  not 
enter  into  the  definition.  Dunsmoor  v. 
Furstenfeldt,  88  Cal.  522;  22  Am.  St.  Rep. 
331;  12  L.  R.  A.  508;  26  Pac.  518.  A 
notice  of  garnishment,  under  a  writ  of  at- 
tachment describing  only  "moneys,  credits, 
and  effects"  as  being  attached,  does  not 
include  any  "indebtedness"  due  from  the 
garnishee  to  the  principal  defendant,  nor 
create  any  liability  therefor  to  the  attach- 
ing creditor.  Clyne  v.  Easton,  148  Cal. 
287;  113  Am.  St.  Rep.  253;  83  Pac.  36. 
A  garnishment  of  "certain  credits  belong- 
ing to  the  defendant,"  which  a  corporation 
has  in  its  possession  or  under  its  control, 
is  not  an  attachment  of  a  "debt"  due  from 
the  corporation  to  the  defendant,  and  the 
attaching  creditor  acquires  no  lien  upon  or 
right  to  such  debt  by  the  service  of  the 
writ.  Gow  V.  Marshall,  90  Cal.  565;  27 
Pac.  422.  Debts  secured  by  mortgage  may 
be  attached  by  garnishment,  but  in  no 
other  way.  McGurren  v.  Garrity,  68  Cal. 
566;  9  Pac.  839.  All  debts  and  credits  of  a 
defendant,  in  possession  of  another  person, 
are  attachable  by  garnishment  (Deering  v. 
Richardson-Kimball  Co.,  109  Cal.  73;  41  Pac. 
801;  Gow  v.  Marshall,  90  Cal.  565;  27  Pac. 
422;  Davis  v.  Mitchell,  34  Cal.  81;  Robinson 
V.  Tevis,  38  Cal.  611);  as  is  also  the  indebt- 
edness of  the  vendee  for  the  purchase  price 
of  real  estate  (Ross  v.  Heintzen,  36  Cal. 
313);  and  the  debt  secured  by  a  mortgage 
(McGurren  v.  Garrity,  68  Cal.  566;  9  Pac. 
839);  and  the  judgment  debt;  but  the  judg- 
ment itself  is  not.  McBride  v.  Fallon,  65 
Cal.  301;  4  Pac.  17;  Dore  v.  Doughertv,  72 
Cal.  232;  1  Am.  St.  Rep.  48;  13  Pac. '621; 
Latham  v,  Blake,  77  Cal.  646;  18  Pac.  150; 
20  Pac.  417;  Hoxie  v.  Bryant,  131  Cal.  85; 
63  Pac.  153;  and  see  Adams  v.  Ilackett, 
7  Cal.  187;  Crandall  v.  Blen,  13  Cal.  15. 

Equitable  rights  and  contingent  claims. 
The    equitable    right    of    a    subcontractor, 
1  Fair. — 36 


under  the  assignment  of  an  interest  in  a 
building  contract,  whereby  the  contractor 
authorized  the  owner  to  pay  to  the  sub- 
contractor a  certain  portion  of  the  con- 
tract price,  to  be  paid  in  installments  as 
the  work  progressed,  upon  the  certificate 
of  the  architect,  as  provided  in  the  con- 
tract between  the  owner  and  the  con- 
tractor, is  not  such  a  legal  demand  as  will 
support  a  garnishment  of  the  owner  in 
an  action  against  the  contractor;  and  the 
certificate  of  the  architect  creates  no  debt 
in  favor  of  the  subcontractor  until  in- 
dorsed by  the  contractor  and  accei)te(l  by 
the  owner.  Ilassie  v.  G.  I.  W.  U.  Con- 
gregation, 35  Cal.  378.  The  assignee  of 
a  vendee  under  an  executory  contract  for 
the  conveyance  of  land  has  no  legal  de- 
mand against  the  vendor  for  the  amount 
paid  by  the  vendee  on  the  purchase  price, 
or  for  moneys  expended  by  himself  in 
improvements,  where  the  vendor  elcts  to 
declare  the  contract  forfeited  for  failure 
of  the  assignee  of  the  vendee  to  pay  the 
purchase  price  at  the  stipulated  time: 
whatever  right  the  assignee  has  is  merely 
equitable,  and  not  subject  to  garnishment. 
Redondo  Beach  Co.  t.  Brewer,  101  Cal. 
322;  35  Pac.  896.  An  execution  pur- 
chaser, who,  pending  appeal,  bid  in  the 
property  for  the  entire  amount  of  his 
judgment  against  the  defendant,  does  not, 
merely  by  reason  of  the  modification  of  the 
judgment  on  appeal,  reducing  the  amount 
thereof,  become  the  debtor  of  the  defend- 
ant for  the  amount  of  the  purchase  price 
bid  by  him  in  excess  of  the  judgment  as 
modified:  the  sale  was  valid  at  the  time 
it  was  made,  but  was  liable  to  be  set  aside 
upon  a  reversal  or  modification  of  the 
judgment  on  appeal,  or  by  the  court  be- 
low, upon  the  return  of  the  case,  upon 
motion  of  the  defendant,  or  by  action;  and 
this  right  to  have  the  sale  set  aside  is  at 
the  election  of  the  defendant,  and  not 
of  his  creditors;  and  unless  he  elects  to 
treat  the  sale  as  valid,  there  can  be  no 
pretense  that  the  purchaser  is  his  debtor; 
and  if  the  plaintiff's  attachment  is  served 
before  the  defendant  makes  such  election, 
there  is  no  debt  upon  which  the  attachment 
can  operate.  .Johnson  v.  Lamping,  34  Cal. 
293.  The  purchaser  of  mortgaged  property, 
who  has  agreed  with  the  mortgagor  to  pay 
the  mortgage  debt,  does  not  thereby  become 
indebted  to  the  mortgagee,  and  is  not  sub- 
ject to  garnishment  in  a  suit  against  the 
latter.  Ilartman  v.  Olvera,  54  Cal.  61.  A 
third  party,  committing  a  trespass  against 
the  defendant  in  an  attachment  suit,  is 
liable  to  such  defendant  for  damages;  but 
the  defendant  alone  has  the  right  to  waive 
the  tort,  and  he  cannot  be  deprived  thereof 
by  his  creditors,  who  have  no  right  to 
treat  such  tort-feasor  as  the  defendant's 
debtor.  .Tohnson  v.  Lamping,  34  Cal.  293. 
Deposits  in  bank.  Where  moneys  have 
been  placed  on  general  deposit  in  a  bank, 
and  negotiable  certiticates  of  deposit  have 


§544 


ATTACHMENT. 


562 


been  issued  to  the  depositor  for  the  amount, 
there  is  nothing  left  in  the  possession  of  the 
bankers,  belonging  to  the  depositor,  upon 
■which  an  attachment  can  fasten;  the  bank- 
ers being  liable  to  pay  the  amount  to  the 
holders  of  the  certificates,  whoever  they 
may  be,  on  presentation.  McMillan  v.  Eich- 
ards,  9  Cal.  365;  70  Am.  Dec.  655.  A  sav- 
ings bank  cannot  avoid  its  liability  to  pay 
over  the  money  of  a  depositor,  on  a  gar- 
nishment at  the  suit  of  the  depositor's 
creditor,  on  the  ground  that  its  by-laws, 
assented  to  by  the  depositor,  make  his 
pass-book  transferable  to  order;  the  pass- 
book not  being  a  negotiable  instrument, 
nor  capable  of  being  made  such  bv  agree- 
ment.    TVitte  V.  Vincenot,  43  Cal.  325. 

Partnership  assets.  Money  derived  from 
the  sale  of  partnership  property  conveyed 
by  an  individual  partner  to  a  trustee  for  his 
wife,  in  fraud  of  creditors  of  partnership,  is 
liable  to  garnishment.  Burpee  v.  Bunn,  22 
Cal.  194.  Moneys  in  the  hands  of  a  receiver, 
in  a  suit  for  dissolution  of  partnership,  are 
subject  to  attachment,  at  any  time  before  a 
final  decree  of  dissolution  and  distribution. 
Adams  v.  Woods,  9  Cal.  24;  and  see  Adams 
V.  Woods,  8  Cal.  152;  68  Am.  Dec.  313; 
Adams  v.  Haskell,  6  Cal.  113;  65  Am.  Dec. 
491. 

Promissory  notes.  The  indebtedness  of 
the  maker  upon  a  promissory  note,  after  its 
maturity,  is  not  the  subject  of  attachment, 
unless  the  note  is  at  the  time  in  the  posses- 
sion of  the  defendant.  Gregory  v.  Higgins, 
10  Cal.  339.  A  promissory  note,  held  by  a 
third  party  as  collateral  security  for  a  debt 
of  a  defendant  in  attachment,  is  a  credit, 
and  is  attachable  by  garnishment,  and  the 
lien  of  the  attachment  upon  the  note  trans- 
fers itself  to  the  money  collected  thereon  by 
the  garnishee.  Deering  v.  Richardson-Kim- 
ball Co.,  109  Cal.  73;  41  Pac.  801;  Gow  v. 
Marshall,  90  Cal.  565;  27  Pac.  422. 

Property  in  custodia  legis.  Where  money 
is  in  the  hands  of  the  clerk  of  the  court, 
deposited,  under  an  order  of  the  court,  by 
the  assignee  of  an  insolvent,  pending  liti- 
gation as  to  the  proper  disposition  thereof 
among  the  creditors,  and  an  order  of  dis- 
tribution is  made  by  the  court,  the  sum 
found  due  each  creditor  is  a  debt  due 
the  creditor  from  the  clerk,  and  may  be 
attached  in  his  hands  by  a  creditor  of 
the  creditor.  Dunsmoor  v.  Furstenfeldt, 
88  Cal.  522;  22  Am.  St.  Eep.  331;  12 
L.  R.  A.  508;  26  Pac.  518;  Estate  of  Nerac, 
35  Cal.  392;  95  Am.  Dec.  111.  Money 
voluntarily  paid  into  court,  without  an 
order  of  court,  by  a  garnishee  who  has 
filed  a  complaint  in  interpleader  against 
attaching  creditors,  is  subject  to  attach- 
ment (Kimball  v.  Richardson-Kimball  Co., 
Ill  Cal.  386;  43  Pac.  1111);  as  is  also 
money  placed  in  the  hands  of  an  agent 
to  pay  creditors,  who  have  not  agreed  to 
look  to  the  agent  for  payment.  Chandler 
V.  Booth,  11  Cal.  342.     Money  of  a  prisoner 


under  sentence  of  life  imprisonment  is  at- 
tachable in  the  hands  of  a  chief  of  police, 
who  holds  it  as  bailee,  and  not  in  his  offi- 
cial capacity,  where  it  has  nothing  to  do 
with  the  conviction  on  the  criminal  charge. 
Coffee  V.  Haynes,  124  Cal.  561;  71  Am. 
St.  Eep.  99;  57  Pac.  482.  Surplus  money 
remaining  in  the  hands  of  trustees  after 
the  satisfaction  of  the  judgment  by  the 
sale  of  land  on  foreclosure,  is  subject  to 
the  lien  of  an  attachment  levied  upon  the 
equitv  of  redemption.  Brown  v.  Campbell, 
100  Cal.  635;  3S  Am.  St.  Eep.  314;  35  Pac. 
433;  and  see  Knight  v.  Fair,  9  Cal.  117; 
McMillan  v.  Eichards,  9  Cal.  365;  70  Am. 
Dec.  655;  Halsey  v.  Martin,  22  Cal.  645. 
Liability  of  garnishee.  The  liability  of 
a  garnishee  to  the  plaintiff  is  direct,  for 
the  value  of  the  goods  in  his  possession 
or  under  his  control  (Eoberts  v.  Landecker, 
9  Cal.  262;  Herrlich  v.  Kaufmann,  99  Cal. 
271;  37  Am.  St.  Eep.  50;  33  Pac.  857; 
Carter  v.  Los  Angeles  Nat.  Bank,  116  Cal. 
370;  48  Pac.  332);  and  the  liability  dates 
from  the  service  of  the  writ  (Johnson  v. 
Carry,  2  Cal.  34;  Norris  v.  Burgoyne,  4  Cal. 
409;  Eoberts  v.  Landecker,  9  Cal.  262); 
but  no  such  liability  exists  where  an  exe- 
cution is  levied  upon  such  debts.  Nord- 
strom V.  Corona  City  W^ater  Co.,  155  Cal. 
206;  132  Am.  St.  Eep.  81;  100  Pac.  242. 
The  acceptor  of  a  bill  of  exchange,  who, 
in  accepting  it,  does  not  inform  the  payee 
of  an  attachment  previously  served  upon 
him  as  a  garnishee  in  a  suit  against  such 
payee,  is  estopped  from  setting  up  such 
garnishment  against  a  purchaser  for  a 
valuable  consideration.  Garwood  v.  Simp- 
son, 8  Cal.  101.  Any  estoppel  which  may 
exist  against  the  garnishee  in  favor  of  the 
attachment  debtor,  by  refusal  of  further 
payments  on  the  ground  that  the  debt  had 
been  attached,  to  deny  the  efficacy  of  the 
notice  of  garnishment,  cannot  avail  the 
plaintiff  as  attaching  creditor,  who  relies 
upon  an  attachment  in  his  favor  which  did 
not  include  the  debt.  Clyne  v.  Easton,  148 
Cal.  287;  113  Am.  St.  Eep.  253;  83  Pac.  36. 
A  garnishee  is  bound  to  protect  the  rights 
of  all  parties  to  the  goods  or  credits  at- 
tached in  his  hands;  and  if,  after  notice, 
though  execution  may  have  been  awarded 
against  him,  he  satisfies  the  judgment,  it 
is  in  his  own  wrong,  and  constitutes  no 
valid  defense  to  the  claim  of  the  assignee. 
Hardy  v.  Hunt,  11  Cal.  343;  70  Am.  Dec. 
787.  The  measure  of  the  garnishee's  lia- 
bility depends  upon  the  amount  of  prop- 
erty in  his  possession  or  under  his  control 
at  the  time  the  writ  is  served.  Eoberts  v. 
Landecker,  9  Cal.  262.  Partnership  prop- 
erty can  be  seized  under  an  execution 
against  one  of  the  partners,  for  his  indi- 
vidual debt,  and  sold;  but  the  interest 
which  passes  by  the  sale  is  only  the  in- 
terest of  the  debtor  partner  in  the  re- 
siduum of  the  partnership  property,  after 
the    settlement    of    the   partnership    debts- 


563 


GARNISHEE — LIABILITY  OF  AND  DEFENSES  BY. 


§544 


Robinson  v.  Tevis,  38  C'al.  Gil.  The  return 
of  the  officer  is  not  coiu'hisive  against  the 
garnishee.  Broadway  Ins.  Co.  v.  Wolters, 
128  Cal.  162;  60  Pac.*766. 

Defenses  by  garnishee.  The  garnishee 
can  plead  any  defense  against  his  creditor, 
and  also  tliat  his  debt  has  been  satisfied, 
or  that  he  failed  to  recover  judgment,  or 
that  it  was  reversed  or  was  barred,  tarter 
V.  Los  Angeles  Nat.  Bank,  IIG  Cal.  ilTO; 
48  Pac.  332.  A  garnishee  does  not  relieve 
himself  of  liability  by  refusing  to  disclose 
his  indebtedness  to  the  judgment  debtor, 
by  holding  the  money  in  his  possession 
until  served  with  an  execution  in  another 
case,  and  by  then  paying  the  money  to  the 
sheriff  without  any  suggestion  as  to  the 
former  service  or  the  appropriation  of 
the  payment;  in  such  a  case,  the  garnishee 
should  be  ordered  to  pay  to  the  judgment 
creditor  the  amount  of  his  indebtedness  to 
the  judgment  debtor.  Finch  v.  Finch,  12 
Cal.  App.  274;  107  Pac.  i)94.  The  delivery 
of  an  ordinary  cheek  upon  a  bank  for 
part  of  the  fund  standing  therein  to  the 
credit  of  the  drawer,  docs  not,  prior  to  its 
presentation,  operate  as  an  assignment  of 
the  fund  pro  tanto,  and  a  garnishment 
of  the  fund  under  execution,  as  belong- 
ing to  the  drawer,  will  prevail  over  all 
unpresented  and  unaccepted  cheeks  pre- 
viously drawn.  Donohoe-Kelly  Banking  Co. 
v.  Southern  Pacific  R.  R.  Co.,  138  Cal.  183; 
94  Am.  St.  Rep.  28;  71  Pac.  93.  The  lia- 
bility created  by  a  garnishment  is  never 
barred  by  the  statute  of  limitations.  Car- 
ter v.  Los  Angeles  Nat.  Bank,  116  Cal.  370; 
48  Pac.  332.  The  running  of  the  statute  of 
limitations  in  favor  of  a  debtor  is  not  inter- 
rupted by  making  him  a  garnishee,  where 
he  denies  any  indebtedness,  or  disputes  the 
defendant's  title  to  any  property  in  his 
possession.  Clyne  v.  Easton,  148  Cal.  287; 
113  Am.  St.  Rep.  253;  83  Pac.  36.  This 
section  is  intended  to  apply  to  those  cases, 
only,  in  which  the  garnishee  admits  his 
indebtedness  as  to  the  defendant  in  at- 
tachment, or  admits  his  possession  or  con- 
trol of  specific  property  of  the  defendant: 
in  such  case  he  can  discharge  his  admitted 
obligation  by  paying  the  debt  to  the  sheriff 
or  delivering  possession  of  the  defendant's 
property;  and  if  he  chooses  to  retain  pos- 
session of  the  defendant's  property,  or  to 
withhold  payment  of  a  sum  admitted  to  be 
due,  he  thereby  makes  himself,  by  his  own 
act,  the  trustee  of  a  fund  or  of  the  spe- 
cific property  in  custodia  legis,  and  in  that 
character  liable  to  account  to  the  party 
entitled,  whenever  called  upon.  Clyne  v. 
Easton,  148  Cal.  287;  113  Am.  St.  Rep.  253; 
83  Pac.  36;  and  see  Carter  v.  Los  Angeles 
Nat.  Bank,  116  Cal.  370;  48  Pac.  332.  No 
equitable  circumstances  need  be  shown,  to 
justify  the  suit  brought  by  the  judgment 
creditor  against  the  garnishee.  Carter  v. 
Los  Angeles  Nat.  Bank,  116  Cal.  370;  48 
Pac.  332.     To  prevent  the  debt  of  a  gar- 


nisliee  to  his  creditor  becoming  barred  by 
the  statute  of  limitations  after  attach- 
ment, where  the  creditor  refuses  to  sue 
thereon,  the  garnishor  may  sue  the  gar- 
nishee upon  his  contingent  liability,  mak- 
ing the  creditor  of  the  garnishee  a  party 
to  the  suit,  and  thereby  protect  the  in- 
terests of  ail  parties.  Clyne  v.  Easton,  148 
Cal.  287;  113  Am.  St.  Rep.  253;  83  Pac.  36. 
A  judgment  cannot  be  entered  against  a 
garnishee  uj)on  the  return  of  the  sheriff, 
without  further  proceedings,  and  without 
the  appearance  of  the  garnishee  in  the 
action,  for  the  amount  stated  to  be  due, 
and  a  judgment  entered  in  such  manner  is 
void  upon  its  face.  Broadway  Ins.  Co.  v. 
Wolters,  128  Cal.  162;  6U  Pac.  766.  The 
judgment  against  a  garnishee  should  be 
simply  for  the  amount  due:  an  order  to 
pay  the  money  into  court  is  improper. 
Smith  v.  Brown,  5  Cal.  118;  Brummagin 
V.  Boucher,  6  Cal.  16.  Proceedings  supple- 
mentary to  execution  need  not  be  invoked 
by  the  plaintiff  in  an  attachment  prior 
to  the  commencement  of  the  action  against 
the  garnishee  upon  his  statutory  liability, 
where  he  does  not  seek  the  discovery  of 
the  property  itself,  or  to  enforce  his  lien 
upon  it,  but  alleges  that  the  garnishee  has 
fraudulently  disposed  of  the  property  and 
converted  the  proceeds  to  his  own  use. 
Roberts  v.  Landecker,  9  Cal.  262;  Robin- 
son V.  Tevis,  38  Cal.  611;  Herrlich  v.  Kauf- 
mann,  99  Cal.  271;  37  Am.  St.  Rep.  50; 
33  Pac.  857.  When  the  debt  is  barred 
against  a  judgment  debtor,  who  has  been 
garnished,  before  the  liability  of  the  gar- 
nishee is  sought  to  be  enforced  by  the  at- 
taching creditor,  the  right  of  the  latter 
to  maintain  an  action  against  the  gar- 
nishee is  also  barred.  Clyne  v.  Easton,  148 
Cal.  2S7;  113  Am.  St.  Rep.  253;  83  Pac.  36. 
Having  once  invoked  the  stringent  pro- 
visions of  the  attachment  law,  the  plain- 
tiff cannot  resort  to  other  remedies  to  the 
prejudice  of  the  defendant,  so  long  as  he 
relies  upon  his  attachment  lien;  but  when 
the  garnishee  has  disposed  of  the  property 
and  converted  the  proceeds  to  his  own  use, 
and  the  plaintiff  neither  seeks  to  enforce 
his  attachment  lien  on  the  property  nor 
asks  to  obtain  its  discovery  to  subject  it 
to  his  debt,  his  means  of  enforcing  the 
liability  of  the  garnishee  for  the  value 
of  goods  in  his  possession  or  under  his 
control  at  the  time  of  the  attachment  is 
by  independent  action.  Roberts  v.  Lan- 
decker, 9  Cal.  262;  Robinson  v.  Tevis,  38 
Cal.  611;  Herrlich  v.  Kaufmann,  99  Cal. 
271;  37  Am.  St.  Rep.  50;  33  Pac.  857. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. The  doctrine  of  garnishment,  though  regu- 
lated, in  part,  by  statute,  is  a  common-law 
proceeding;  and  in  proceedings  against  a  garnishee 
the  parties  may  demand  a  jury  trial.  Cahoon  v. 
Levy,  5  Cal.  294.  The  liability  dates  from  the 
service  on  the  garnishee.  Johnson  v.  Carrv,  2  Cal. 
33. 

2.  EfTect  of  garnishment.  A  garnishment  served 
upon   the   owner,    in   a   suit   against   the   head  con- 


§545 


ATTACHMENT. 


564: 


tractor,  after  the  commencement  of  the  building 
and  before  notice  served,  prevails  over  the  lien 
of  a  subcontractor.  Cahoon  v.  Levy.  6  Cal.  295; 
65  Am.  Dec.  515.  The  lien  of  a  subcontractor 
filed,  and  notice  given  to  the  owner  of  a  building, 
within  thirty  days  after  the  completion  of  the 
work,  under'  the  act  of  1855,  attaches  from  the 
time  the  work  was  commenced,  and  takes  prece- 
dence over  a  garnishment  served  on  the  owner 
against  the  contractor,  after  the  work  was  com- 
menced, and  before  the  filing  and  serving  notice 
of  lien.  Tuttle  v.  Montford,  7  Cal.  358.  Where 
A.,  who  carried  on  a  printing-oftice,  and  was  in- 
debted to  the  hands  of  the  office,  placed  in  the 
hands  of  B.  a  certain  amount  of  money,  with  di- 
rections to  B.  to  pay  the  hands,  which  B.  ne- 
glected to  do,  and  where  there  was  no  evidence 
that  the  hands  agreed  to  look  to  B.  for  their 
money,  or  that  A.  was  indebted  to  the  hands  in 
an  amount  equal  or  appro.ximate  to  the  sum  in 
B.'s  hands,  and  the  money  was  subsequently  at- 
tached in  the  hands  of  B.,  at  the  suit  of  C.  against 
A.,  it  was  held  that  the  monev  was  liable  to  the 
attachment.  Chandler  v.  Booth,  11  Cal.  342.  The 
fact  that  the  defendant  in  an  action  for  the  re- 
covery of  money  has  been  garnished  by  a  credi- 
tor of  the  plaintiff  constitutes  no  defense,  and 
cannot  be  set  up  in  bar.  The  remedy  of  defend- 
ant in  such  case  is  by  motion,  based  upon  affi- 
davit of  the  fact,  for  stay  of  proceedings  until 
the  action  against  the  plaintiff  or  the  attachment 
is  disposed  of.  McKeon  v.  McDermott.  22  Cal. 
667;  83  Am.  Dec.  86;  Pierson  v.  McCahill,  21 
Cal.  122.  Money  deposited  with  the  sheriff,  by 
a  defendant,  to  procure  the  release  of  an  attach- 
ment is  in  the  custody  of  the  law;  but  when  the 
parties,  by  agreement,  take  it  out  of  the  hands 
of  the  sheriff  and  loan  it  out  to  third  parties, 
these   parties   are  not   the   bailees   of  the   sheriff, 

§  545.  Citation  to  garnishee  to  appear  before  a  court  or  judge.  Any  per- 
son owing  debts  to  the  defendant,  or  having  in  his  possession,  or  nnder  his 
control,  any  credits  or  other  personal  property  belonging  to  the  defendant, 
may  be  required  to  attend  before  the  court  or  judge,  or  a  referee  appointed 
by  the  court  or  judge,  and  be  examined  on  oath  respecting  the  same.  The 
defendant  may  also  be  required  to  attend  for  the  purpose  of  giving  informa- 
tion respecting  his  property,  and  may  be  examined  on  oath.  The  court  or 
judge  may,  after  such  examination,  order  personal  property,  capable  of 
manual  delivery,  to  be  delivered  to  the  sheriff  on  such  terms  as  may  be  just, 
having  reference  to  any  liens  thereon  or  claims  against  the  same,  and  a 
memorandum  to  be  given  of  all  other  personal  property,  containing  the 
amount  and  description  thereof. 

Compare,  "Proceedings  Supplementary  to  Exe- 
cution."   Post,  §§  714-721. 

Legislation  8  545.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,  §  128,  as  amended 
by   Stats.    1855,  p.    197. 


and  the  money  ceases  to  Toe  in  the  custody  of  the 
law,  and  can  only  be  reached  on  proceedings  sup- 
plementary to  execution,  in  the  same  manner  a» 
other  debts  are  reached.  Hathaway  v.  Brady,  26 
Cal.  586.  The  defendant,  previous  to  the  suit  of 
the  plaintiff  against  the  R.  S.  Mining  Co.,  sued 
the  company,  and  obtained  judgment  against  it 
by  default.  The  judgment  was  made  to  draw  a 
certain  rate  of  interest,  without  there  being  any 
prayer  for  such  relief  in  the  complaint,  and  was 
erroneous  in  certain  other  respects.  On  appeal, 
the  judgment  was  modified  in  certain  respects. 
There  was  no  stay  of  proceedings  in  the  court  be- 
low, and  before  the  decision  on  appeal  the  de- 
fendant had  taken  out  an  execution,  and  caused 
the  mining  claims  of  the  R.  S.  Mining  Co.  to  be 
sold.  At  the  sale,  the  defendant  bid  the  full  sum 
for  which  his  execution  called,  and  became  the 
purchaser.  He  paid  the  sheriff  no  money,  except 
his  fees  on  the  execution,  but  gave  him  a  receipt 
for  a  sum  equal  to  the  face  of  the  execution,  less 
the  fees  paid  to  the  sheriff.  The  R.  S.  Mining 
Co.  had  ceased  to  work  their  mine  prior  to  this 
sale.  After  the  sale,  a  contract  was  made  be- 
tween the  defendant  and  the  company,  by  which 
the  latter  agreed  to  work  the  mine  during  the 
time  allowed  for  redemption,  and  pay  over  the 
proceeds  to  the  defendant,  and  the  latter  agreed 
to  pay  all  the  expenses  of  working,  and  to  pay 
the  company  wages.  Under  this  contract  the  de- 
fendant received  from  the  mine,  over  and  above 
expenses,  the  sum  of  seven  thousand  dollars  in 
gold-dust.  Plaintiff,  as  an  attaching  creditor  of 
the  R.  S.  Mining  Co.,  brings  suit  against  the  de- 
fendant as  garnishee.  Held,  that  the  case  pie- 
sented  failed  to  make  the  defendant  a  debtor  of 
the  company  within  reach  of  plaintiff's  attach- 
ment.   Johnson  v.  Lamping,  34  Cal.  295. 


Examination  of  garnishee.  "Where  a  gar- 
nisliee.  in  discharge  of  a  rule,  answers,  on 
oath,  that  he  was  released  by  the  plain- 
tiff from  his  obligation  to  answer,  and 
that  the  plaintiff  had  abandoned  his  ex- 
amination, he  should  be  discharged  with- 
out further  delay,  unless  his  answer  is 
controverted  bv  the  affidavit  of  the  plain- 
tiff. Ogden  V.  Mills.  3  Cal.  253.  The  pro- 
visions of  this  section  were  intended  for 
the  securit.v  of  the  plaintiff,  and  not  to 
confer  a  privilege  upon  the  garnishee,  and 
the  plaintiff  may  or  may  not,  at  his  elec- 
tion, require  the  garnishee  to  appear  and 
answer  on  oath,  and  his  liability  will  not 
be  affected  by  the  failure  of  the  plaintiff 


to  take  such  step.  Eoberts  v.  Landecker,. 
9  Cal.  262;  Eobinson  v.  Tevis,  36  Cal.  611. 
A  garnishee  will  be  discharged  of  his  lia- 
bility to  answer,  by  laches  of  the  plaintiff 
to  proceed  with  the  examination.  Ogden 
V.  Mills,  3  Cal.  253.  A  garnishee  can 
only  be  required  to  answer  as  to  his  lia- 
bility to  the  debtor  defendant  at  the  time 
of  the  service  of  the  writ.  Norris  v.  Bur- 
goyne,  4  Cal.  409.  Upon  proceedings  sup- 
plementary to  execution,  where  there  are 
other  persons  claiming  liens  upon  money 
in  the  possession  of  the  garnishee,  the  court 
cannot  order  the  garnishee  to  pay  money 
in  his  possession  to  the  plaintiff,  but  is 
authorized  only  to  make  an  order  to  the 
effect  that  the  plaintiff  may  bring  an  ac- 
tion against  the  garnishee  as  provided  by 
§  720,  post,  to  which  action  other  persons 
claiming  liens  upon  the  money  by  prior 
attachments  might  be  made  or  become  par- 


565 


EXAMINATION  OF  DEFENDANT — PLEDGE — INVENTORY,  ETC. 


§540 


ties.  Deering  v.  Richardson-Kimball  Co., 
1U9  Cal.  73;  41  Pac.  SOI. 

Examination  of  defendant.  A  defend- 
ant, iti,'ainst  whose  property  a  writ  of 
attac'hiiient  has  been  issued,  cannot  be 
compelled  to  attend  before  tlie  judge  or  a 
referee  and  submit  to  an  examination  as 
"to  the  situation  and  condition  of  his  prop- 
■erty,  nor  can  he  be  compelled  to  deliver 
up  his  property.  Ex  parte  Kickleton,  51 
Cal.  316. 

Attachment  of  pledge.  The  interest  of 
the  jdedgor  can  only  be  reached  by  serv- 
ing a  garnishment  on  the  pledgee,  and  not 
by  a  seizure  of  the  pledge:  the  law  wisely 
provides  that  the  pledgee  shall  not  be  de- 
prived of  his  possession,  unless  it  be  by 
an  order  made  after  examination,  and  on 
jsuch  terms  as  may  be  just,  having  refer- 
ence to  any  lieus  thereon  or  claims  against 
the  same;  by  this  method  the  rights  of 
all  the  parties  may  be  protected,  and  it 
is  the  only  method  by  which  the  interest 
of  the  pledgor  can  be  subjected  to  the 
writ.  Tread  well  v.  Davis,  34  Cal.  601;  94 
Am.  Dec.  770. 

CODE  COMMISSIONERS'  NOTE.  See  note  to 
-preceding  seclion.  Where  a  Karnishee  answers 
on  oath  that  he  was  released  by  the  plaintitT,  and 
that  the  plaintiff  had  abandoned  his  examination, 
he  should  be  discharged  by  the  court,  unless  his 
answer  is  controverted  by  the  affidavit  of  the 
plaintitT.  Ogden  v.  Mills,  3  Cal.  25;?.  He  can 
only  be  required  to  answer  as  to  his  liability,  to 
the  debtor,  at  the  time  of  the  service  of  the  gar- 
nishment. Norris  v.  Burgoyne,  4  Cal.  409.  He 
should  be  allowed  to  amend  his  answer,  whenever 
it  appears  that  he  was  mistaken  or  in  error, 
and  that  either  could  not  have  been  reasonably 
avoided.  Smith  v.  Brown,  5  Cal.  118.  Where  B. 
■was  garnished  in  a  suit  against  C,  the  day  before 
he  accepted  an  order  drawn  by  A.  in  favor  of  C, 
but  failed  to  inform  C.  thereof;  and  C.,  for  a 
valuable  consideration,  sold  the  order,  as  indorsed, 
to  D.,  an  innocent  purchaser.  It  was  held,  that 
B.  was  estonped  from  setting  up  against  it  any 
antecedent  matter,  and  is  liable  to  D.  for  the  full 
amount  thereof.    Garwood  v.  Simpson,  8  Cal.  101. 


A  plaintiff  who  has  sued  out  an  attachment,  and 
given  the  necessary  notice  to  a  garnishee  tliat  the 
property  in  his  hands  is  attached,  and  subse- 
quently the  garnishee  fraudulently  disposes  of  iho 
jjropcrty,  may  waive  his  lien  on  the  property  and 
iiring  suit  for  the  value  of  the  property  against 
the  garnishee.  Roberts  &  Co.  v.  Landecker,  9  Cal. 
20'J. 

Unless  the  answer  of  a  garnishee  discloses  liens 
having  priority,  judgment  must  be  rendered  for 
the  amount  he  admits  is  due.  Cahoon  v.  Levy.  4 
Cal.  244.  Garnishment  of  bailor.  Hardy  v.  Hunt, 
11  Cal.  343:  70  Am.  Dec.  787.  An  order  re- 
quiring the  garnishee  to  pay  into  court  the  amount 
for  which  judgment  has  been  rendered  against 
him,  is  improper.  Smith  v.  Brown,  5  Cal.  118; 
r>rummagim  v.  Boucher,  6  Cal.  16.  The  provis- 
ions of  this  section  do  not  confer  a  privilege  upon 
the  garnishee.  The  plaintiff  may  or  may  not  re- 
quire the  garnishee  to  appear  and  answer  on  oath, 
and  his  liability  will  not  be  affected  by  the  fail- 
ure of  the  plaintiff  to  take  such  a  step.    Roberts 

6  Co.  V.  Landecker,  9  Cal.  262.  Where  shares 
of  stock  in  a  corporation  have  been  regularly 
transferred  as  security  for  a  loan,  the  corporation 
is  no  longer  in  privity  with  the  mortgagor,  and 
the  mortgagee  is  the  only  proper  garnishee  in  a 
suit  against  the  mortgagor,  in  order  to  attach  his 
interest   in  the  corporation.    Edwards  v.   Beugnot, 

7  Cal.  162.  After  the  delivery  and  presentation 
of  an  order,  a  debt  due  by  the  drawee  cannot  be 
reached  on  attachment  issued  by  the  creditors  of 
the  drawer.  Wheatley  v.  Strobe,  12  Cal.  92;  73 
Am.  Dec.  .522.  Plaintiff  delivered  to  defendants 
gold-dust,  to  be  forwarded  to  San  Francisco,  to 
be  coined  and  returned.  The  dust  belonged  to 
five  persons,  partners  in  mining,  of  whom  plain- 
tiff and  C.  were  two.  While  the  dust  was  in  the 
hands  of  the  defendants,  C.  sold  to  plaintiff  his 
interest  in  it,  and  gave  a  receipt  evidencing  the 
sale.  Defendants  after  this  received  coin  made 
of  the  dust,  and  a  creditor  of  C.  attached  the  coin 
by  garnishing  defendants.  Defendants  had  no  no- 
tice of  the  sale  to  plaintiff  until  the  day  after 
the  attachment,  when  plaintiff  demanded  C.'s  share 
of  the  coin.  It  was  held,  that  plaintiff  was  en- 
titled to  the  coin;  that  the  dust  in  defendant's 
hands  was  in  the  constructive  possession  of  all 
the  five  owners,  C.  having  no  exclusive  interest  in 
any  part  until  it  was  converted  into  coin  and 
divided  among  the  owners;  that  C.'s  right  in 
the  dust  was  a  chose  in  action,  which  he  could 
assign  by  ordei  in  favor  of  the  purchaser  or 
assignee,  and  after  such  order,  neither  C.  nor  his 
creditors  could  claim  any  right  to  the  money,  and 
that  the  statute  of  frauds  has  no  application  to  a 
case  like  this.    Walling  v.  Miller,  1.5  Cal.  33. 


§  546.  Inventory,  how  made.  Party  refusing  to  give  memorandum  may 
136  compelled  to  pay  costs.  The  sheriff  must  make  a  full  inventory  of  the 
property  attached,  and  return  the  same  with  the  Avrit.  To  enable  him  to 
make  such  return  as  to  debts  and  credits  attached,  he  must  request,  at  the 
time  of  service,  the  party  owing  the  debt  or  having  the  credit  to  give  him 
a  memorandum,  stating  the  amount  and  description  of  each ;  and  if  such 
memorandum  be  refused,  he  must  return  the  fact  of  refusal  with  the  writ. 
The  party  refusing  to  give  the  memorandum  may  be  required  to  pay  tlic 
costs  of  any  proceedings  taken  for  the  purpose  of  obtaining  information  re- 
specting the  amounts  and  description  of  such  debt  or  credit. 

garnishee  has  possession  and  control,  and 
which  may  be  delivered  up  or  transferrdl 
to  the  sherifi':  a  garnishment  of  "certain 
credits  belonging  to  the  defendant,"  which 
a  corporation  has  in  its  possession  or  under 
its  control,  is  not  an  attachment  of  a  debt 
due  from  the  corporation  to  the  defendant. 
Gow  V.  Marshall,  90  Cal.  565;  27  Pac.  422. 


Return  of  writ,   generally.    See  post,  §  .559. 

Legislation  §  546.  Enacted  March  11.  1873; 
basicl  on  Practice  .Act,  §  129.  which  had  the  word 
""shall"   instead  of  "must."  in  each   instance. 

Debt  and  credit,  distinguished.  A  "debt" 
is  monev  owing  by  the  garnishee  to  the 
•defendant,  which  may  be  paid  over  to 
the  sheriff;  but  a  "credit"  is  something 
Iselonging  to  the  defendant,  of  which  the 


!§  547-549 


ATTACHMENT. 


560 


§  547.  Perishable  property,  how  sold.  Accounts  without  suit  to  be  col- 
lected. If  any  of  the  property  attached  be  perishable,  the  sheriff  must  sell 
the  same  in  the  manner  in  which  such  property  is  sold  on  execution.  The 
proceeds,  and  other  property  attached  by  him.  must  be  retained  by  him  to 
answer  any  judgment  that  may  be  recovered  in  the  action,  unless  sooner 
subjected  to  execution  upon  another  judgment  recovered  previous  to  the 
issuing  of  the  attachment.  Debts  and  credits  attached  may  be  collected  by 
him,  if  the  same  can  be  done  without  suit.  The  sheriff's  receipt  is  a  suffi- 
cient discharge  for  the  amount  paid. 

of  other  property,  which  would  materially' 
depreciate  in  value  from  other  causes  than 
decay,  cannot  be  made,  except  by  order  of 
the  court,  under  §  548,  post.  Witherspoou 
V.  Cross,  135  Cal.  96;  67  Pac.  18. 


Legislation  g  547.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  130,  which  had  (1)  the 
word  "shall"  instead  of  "must,"  before  "sell  the 
same,"  and  before  "be  retained,"  and  (2)  the 
words  "shall  be"  instead  of  "is,"  after  "receipt." 

Perishable  property.  The  "perishable 
property"  attached,  that  the  sheriff  may 
sell,  under  this  section,  without  an  order 
of  the  court,  is  such  only  as  is  subject  to 
speedy    and    natural    decay;    but    the    sale 


CODE  COMMISSIONERS'  NOTE.  Sale  of  per- 
ishable property.  Davis  v.  Ainsworth,  14  How. 
Pr.  346.  Collection  of  debts.  Mechanics'  etc. 
Bank  v.  Dakin,  33  How.  Pr.  316;  50  Barb.  587; 
Heye  v.  Bolles,  2  Daly,  231. 


§  548.  Property  attached  may  be  sold  as  under  execution,  if  the  interests 
of  the  parties  require.  Whenever  property  has  been  taken  by  an  officer 
under  a  writ  of  attachment,  and  it  is  made  to  appear  satisfactorily  to  the 
court  or  a  judge  thereof  that  the  interest  of  the  parties  to  the  action  will  be 
subserved  by  a  sale  thereof,  the  court  or  judge  may  order  such  property  to 
be  sold  in  the  same  manner  as  property  is  sold  under  an  execution,  and  the 
proceeds  to  be  deposited  in  the  court  to  abide  the  judgment  in  the  action. 
Such  order  can  be  made  only  upon  notice  to  the  adverse  party  or  his  at- 
torney, in  case  such  party  has  been  personally  served  with  a  summons  in 
the  action. 

all  be  deposited  with  the  latter  court,  as 
thereby  the  lien  of  the  prior  attachment 
would  be  lost;  and  the  officer  will  not  be 
protected  by  the  order  of  such  court  in 
making  such  deposit,  since,  having  both 
attachments  in  his  hands,  he  must  know 
that  that  court  could  deal  only  with  the 
surplus  remaining  after  the  satisfaction  of 
the  first  demand.  Weaver  v.  Wood,  49  Cal. 
297. 

Notice.  The  order  of  sale  cannot  be 
made,  except  upon  notice  to  the  adverse 
partv.  Witherspoon  v.  Cross,  135  Cal.  96, 
67  Pac.  18. 


Legislation  §  548.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  654,  as  amended  by 
Stats.  1854,  Redding  ed.  p.  72,  Kerr  ed.  p.  101, 
§  66,  which  had  (1)  the  words  "in  pursuance  of 
the  provisions  of  said  act"  after  "writ  of  attach- 
ment," (2)  the  words  "shall  be"  instead  of  "is," 
before  "made  to  appear,"  and  (3)  the  words  "or 
a  county  judge"  after  "judge  thereof."  When 
enacted  in  1872,  it  read  same  as  at  present,  ex- 
cept that  it  contained  the  words  "or  a  county 
judge,"   as  in  the  Practice   Act. 

2.   Amended  by  Code  Amdts.   1S80,  p.  4. 

Application  of  proceeds.  The  proceeds 
of  property  seized  by  an  officer  under  at- 
tachment from  two  separate  courts,  and 
Bold  under  an  order  of  the  court  on  which 
the   junior   attachment   isrsued,   should   not 

§  549.  When  property  claimed  by  a  third  party,  how  tried.  If  any  per- 
sonal property  attached  be  claimed  by  a  third  person  as  his  property,  the 
same  rules  shall  prevail  as  to  the  contents  and  making  of  said  claim,  and  as 
to  the  holding  of  said  property,  as  in  case  of  a  claim  after  levy  upon  execu- 
tion, as  provided  for  in  section  six  hundred  and  eighty-nine  of  the  Code  of 
Civil    Procedure. 

Claim  of  third  person  to  property.  De- 
maud  upon  and  notice  to  an  officer  are 
necessary,  where  the  property  is  in  the 
possession  and  apparent  control  of  the  de- 
fendant at  the  time  of  the  seizure,  before 
the  claimant  can  maintain  an  action  of 
claim  and  delivery.  Taylor  v.  Seymour,  6 
Cal.   512;    Killey   v.    Scannell,   12    Cal.    73. 


Sureties  on  indemnity.    Post,  §  1055. 

Legislation  «  549.  1.  Enacted  March  11,  1872; 
re-enactment  of  Practice  .'Vet,  §  i:il.  which  rea<l : 
"If  any  personal  property  attached  be  claimed 
by  a  third  person  as  his  property,  the  sheriff 
may  summon  a  jury  of  six  men  to  try  the  valid- 
ity of  such  claim;  and  such  proceedings  shall  be 
had  thereon,  with  the  like  eflfect,  as  in  case  of 
a   claim   after   levy   upon   execution." 

2.   Amended  by"  Stats.  1891,  p.  20. 


567 


CLAIM    OF    THIRD    PARTY — ESTOPPEL — INDEMNITY    TO    SHERIFP. 


§549 


The  attachment  by  a  sheriff  of  gootls  in 
the  possession  of  the  attachment  debtor, 
which  he  has  no  reason  to  suppose  to  be 
the  property  of  another,  is  in  pursuance 
of  the  authority  of  the  writ  of  attachment, 
and  does  not  constitute  a  conversion  of 
the  property  attached;  in  order  to  render 
him  liable,  facts  should  be  stated  to  show 
that  upon  notice  of  the  true  owner's  claim, 
he  refused  to  surrender  the  property.  Ful- 
ler Desk  Co.  V.  McDade,  113  Cal.  .360;  4.5 
Pac.  G94.  A  demand  for  the  return  of 
property  is  not  vitiated  by  an  exception 
therein  of  property  stated  as  that  owned 
by  a  certain  person,  not  a  party  to  the 
action.  Susskind  v.  Hall,  5  Cal.  Unrep. 
304;  44  Pae.  328.  Where  a  third  person 
has  property  of  an  attachment  debtor  in 
his  possession,  mingled  with  his  own  prop- 
erty, of  a  different  kind  and  character, 
plainly  and  easily  distinguishable  from  the 
other,  which  he  refuses  to  point  out,  claim- 
ing ownership  of  all,  the  sheriff  is  not  au- 
thorized to  seize  the  property  of  such  third 
person.  ISusskind  v.  Hall,  5  Cal.  Unrep. 
304;  44  Pac.  328;  and  see  Daumiel  v. 
Gorham,  6  Cal.  43;  Wellington  v.  Sedg- 
wick, 12  Cal.  469;  Paige  y.  O'Neal,  12  Cal. 
483.  The  claimant  may  be  required  to  de- 
scribe the  property,  when  testifying  in  an 
action  brought  by  him  against  an  officer 
for  the  recovery  of  the  same.  Brichman 
y.  Ross,  67  Cal.  601;  8  Pac.  316.  The  right 
of  the  officer  to  notice  and  demand  is  not 
affected  by  the  fact  that  he  has  obtained 
indemnity  before  seizing  the  goods:  notice 
of  the  claim  of  another  may  materially 
affect  the  character  of  the  indemnity  re- 
quired. Taylor  v.  Seymour,  6  Cal.  512. 
Where,  prior  to  the  amendment  of  this 
section  and  §  689,  post,  a  sheriff  seized  the 
goods  of  a  third  party,  in  the  custody  of 
the  owner  or  a  person  other  than  the  de- 
fendant, he  is  a  trespasser  ab  initio,  and 
no  jirevious  demand  is  necessary  to  author- 
ize a  recovery  for  such  trespass.  Moore  v. 
Murdock,  26  Cal.  514;  Black  v.  Clasby,  97 
Cal.  482;  32  Pac.  564;  and  see  Ledlev  v. 
Hays,  1  Cal.  160;  Paige  v.  O'Neal,  12''Cal. 
483;  Boulware  v.  Craddock,  30  Cal.  190. 
When  the  taking  of  the  property  is  tor- 
tious, no  demand  is  necessary  before  be- 
ginning suit.  Ham  v.  Henderson,  50  Cal. 
367.  The  vendee  of  a  third  party,  pur- 
chasing after  levy,  is  entitled  to  make 
demand  for  the  return  of  goods  seized, 
and  upon  failure  or  refusal  of  the  officer 
to  yield  up  the  possession,  he  can  main- 
tain an  action  for  conversion:  conversion 
by  seizure  on  attachment  does  not  deprive 
the  owner  of  the  title,  nor  render  such 
subsequent  transfer  void.  Howe  v.  .John- 
son, 117  Cal.  37;  48  Pac.  978.  Proof  of 
the  service  of  the  claim  on  the  officer  is 
admissible  against  him,  in  an  action  bj'  a 
claimant  for  the  wrongful  seizure  of  prop- 
erty, though  not  pleaded;  §  689,  post,  be- 
ing for   the   protection   of   the   officer,   and 


thus  a  matter  of  defense.  Paden  v.  GoM- 
baum,  4  Cal.  Unreii.  767;  37  Pac.  759.  In 
an  action  of  claim  and  delivery,  a  simple 
allegation  of  the  demand  is  sufficient,  as 
against  a  general  demurrer;  if  the  form 
of  the  demand  does  not  comply  with  tlie 
requirement  of  §  C89,  post,  the  defendant 
may  set  up  such  fact  in  his  answer,  or 
object  to  the  admission  of  evidence  of  de- 
manil.  Brenot  v.  Robinson,  108  Cal.  143; 
41  Pac.  37. 

Estoppel  to  claim  ownership.  The  owner 
of  property  attaclied  or  levied  upon  as  the 
property  of  another,  is  not  conclusively 
estopped  from  showing  title  in  himself  be- 
cause he  has  given  an  accountable  receipt 
for  its  delivery  to  the  officer,  although  the 
receipt  admits  that  the  property  is  at- 
tached or  levied  ujjon  as  the  property  of 
the  debtor,  if  he  makes  known  to  the  offi- 
cer his  claim  at  or  before  the  time  tlie 
receipt  is  given;  but  if  he  fails  to  make 
his  claim  known,  and  thus  influences  the 
conduct  of  the  officer,  he  is  estopped  from 
afterwards  asserting  it,  provided  the  facts 
and  circumstances  relating  to  his  claim 
were  then  known  to  him;  but  such  receipt 
will  constitute  prima  facie  evidence  of 
ownership,  and,  unless  overcome  by  proof 
on  the  part  of  the  claimant,  must  be  de- 
cisive against  him;  and  to  overcome  this 
prima  facie  ownership  in  the  debtor,  the 
receiptor  must  prove  that  he  claims  the 
property,  and  that  it  was  in  fact  his  own. 
Eleven  v.  Freer,  10  Cal.  172;  Dresbach 
y.  Minnis,  45  Cal.  223.  In  an  action  of 
claim  and  delivery,  brouglit  by  a  purchaser 
against  a  sheriff  who  levied  an  attachment, 
the  sheriff  stands  in  the  shoes  of  the  at- 
taching creditor,  and  is  bound  by  the  es- 
toppel against  such  creditor,  and  cannot 
defend  the  action  by  justifying  under  the 
writ  of  attachment.  Sullivan  v.  Johnson, 
127  Cal.  230;  59  Pac.  583. 

Indemnity  to  sheriff.  It  is  the  right  and 
duty  of  the  sheriff  to  take  full  indemnity 
from  each  attaching  creditor,  so  that  he 
may  be  secure  in  any  event,  as  he  cannot 
foresee  whose  levy  will  ultimately  prevail. 
Davidson  v.  Dallas,  8  Cal.  227.  Where  the 
plaintiff,  on  demand  of  the  officer,  gave 
him  not  only  an  indemnity  bond,  but  also 
a  written  agreement  that  he  might  retain 
for  a  reasonable  time,  as  additional  se- 
curity against  the  claim  of  a  third  party, 
all  the  moneys  that  might  come  into  his 
hands  by  reason  of  his  attachment  or  any 
execution  to  be  issued  in  the  action,  the 
reasonable  time  stipulated  for  must  be 
construed  as  relating  to  the  proceedings 
by  such  third  party  to  recover  the  money 
attached,  and  the  officer  cannot  be  re- 
quired, regardless  of  the  proceedings  by 
such  third  party,  to  pay  the  money  into 
court  or  to  apply  it  in  satisfaction  of  the 
judgment  subsequently  obtained  by  the 
plaintiff  in  the  attachment  suit.  Scherr 
V.    Little,    60    Cal.    614.     Where    a    sheriff 


§549 


ATTACHMENT. 


568 


has  required  indemnity  bonds  from  two 
several  attaching  creditors  upon  his  seiz- 
ure and  detention  of  property  claimed  by 
a  third  party,  and  he  has  been  held  liable 
in  damages  to  such  claimant  as  a  tres- 
passer, his  recourse  upon  the  several  bonds 
must  be  determined  by  the  following  rules: 
1.  If  the  attachments  are  both  ultimately 
sustained,  and  the  whole  proceeds  of  the 
property  are  absorbed  by  the  debt  of  the 
prior  attaching  creditor,  then  he  will  be 
solely  responsible  to  the  sheriff  for  the 
entire  liability  incurred  by  him  to  the 
claimant;  2.  If  the  levy  of  the  prior  at- 
taching creditor  is  defeated,  and  that  of 
the  junior  attaching  creditor  sustained, 
then  the  latter  will  be  solely  responsible 
for  the  entire  amount;  3.  If  both  attach- 
ments are  sustained,  and  the  property  is 
sold  for  more  than  sufficient  to  pay  the 
prior  attaching  creditov,  then  each  of  said 
c-reditors  will  be  responsible  in  proportion 
to  the  amounts  paid  to  each  by  the  sheriff; 
4.  If  both  attachments  are  defeated  by 
the  defendant  in  the  attachment  suit,  or 
if  the  suits  of  the  sheriff  against  the  in- 
demnitors are  commenced  before  the  de- 
termination of  the  attachment  suits,  then 
the  separate  responsibility  of  the  attach- 
ing creditors  will  be  in  proportion  to  the 
amounts  of  their  respective  attachments, 
unless  the  whole  amount  for  which  both 
judgments  were  levied  exceeded  the  value 
of  the  property  as  settled  in  the  suit 
against  the  sheriff,  in  which  case  the  prior 
attaching  creditor  will  be  responsible  to 
the  amount  of  his  attachment,  and  the 
subsequent  attaching  creditor  for  the  re- 
mainder. Davidson  v.  Dallas,  8  Cal.  227; 
but  see  same  case,  15  Cal.  75,  where  this 
decision  is  commented  on  and  doubted. 

Justification  of  ofllcer  under  writ.  To 
justify  under  the  writ,  the  officer  must 
show  title  to  the  goods  in  the  defendant 
in  the  attachment  suit  at  the  time  of  the 
levy.  O'Connor  v.  Blake,  29  Cal.  312.  An 
officer,  in  order  to  justify  the  seizure, 
under  a  writ  of  attachment,  of  personal 
property  found  in  the  possession  of  a 
stranger  to  the  suit,  claiming  title  thereto, 
must  show  a  judgment  or  prove  the  debt 
for  which  judgment  is  demanded;  and  to 
do  so,  the  papers  in  the  attachment  suit 
are  not  sufficient.  Brown  v.  Cline,  109  Cal. 
156;  41  Pac.  862;  Brichman  v.  Ross,  67 
Cal.  601;  8  Pac.  316;  and  see  Thornburgh 
v.  Hand,  7  Cal.  554.  The  officer  must 
prove  the  existence  of  the  debt  for  which 
the  attachment  was  issued,  when  the  debt 
has  not  been  established  by  a  judgment 
against  the  debtor:  when  that  is  done,  the 
judgment  proves  it  (Sexey  v.  Adkinson, 
34  Cal.  346;  91  Am.  Dec.  698);  and  he 
must  prove  not  only  the  attachment,  but 
also  the  proceedings  on  which  it  was  based, 
against  the  claim  of  a  third  person.  Horn 
v.  Corvarubias,  51  Cal.  524;  Thornburgh 
V.  Hand,   7   Cal.  554;   and  see  Darville   v. 


Mayhall,  128  Cal.  617;  61  Pac.  276;  Aigel- 
tinger  v.  Einstein,  143  Cal.  609;  101  Am. 
St.  Rep.  131;  77  Pac.  669.  A  sheriff,  jus- 
tifying on  the  ground  that  the  property 
seized  had  been  fraudulently  sold  by  the 
attachment  defendant  to  the  claimant, 
need  not  plead  such  fraudulent  sale  in  his 
answer,  in  a  suit  brought  by  the  claimant 
to  recover  the  property:  he  may  simply 
deny  the  plaintiff's  title,  and  at  the  trial 
prove  the  facts  showing  that  the  sale  was 
fraudulent  and  void.  Mason  v.  Vestal,  88 
Cal.  396;  22  Am.  St.  Rep.  310;  26  Pac.  213. 
An  officer  may  defeat  a  claim  by  showing 
that  the  property  had  been  fraudulently 
transferred  to  the  claimant  by  the  defend- 
ant in  the  attachment  suit  (Howe  v.  John- 
son, 107  Cal.  67;  40  Pac.  42);  and  he  may 
show,  in  justification,  that  the  property 
had  been  sold  by  the  attachment  debtor 
to  the  claimant,  in  contemplation  of  in- 
solvency and  in  fraud  of  his  creditors,  and 
that,  subsequently  to  such  seizure,  the  as- 
signee in  insolvency  of  such  debtor  had 
recovered  possession  of  the  property  from 
the  officer.  Bolander  v.  Gentry,  36  Cal. 
105;  95  Am.  Dec.  162.  The  circumstance 
that  the  property  was  in  the  possession 
of  the  execution  debtor  at  the  date  of 
the  seizure  amounts  to  nothing,  except 
upon  proof  of  fraud  or  commixture.  Boul- 
ware  v.  Craddock,  30  Cal.  190.  Where  the 
sheriff  wrongfully  took  possession  of  the 
goods,  he  cannot  justify  on  the  ground 
that  the  coroner  had  taken  them  from 
his  possession  before  he  removed  them. 
Squires  v.  Payne,  6  Cal.  654.  The  seizure 
of  the  property  of  tenants  in  common,  on 
an  attachment  against  one  of  such  ten- 
ants, is  not  a  trespass  against  his  co- 
tenants:  in  attaching  the  interest  of  one 
tenant  in  common,  the  sheriff  is  justified 
in  taking  possession  of  the  entire  prop- 
erty for  the  purpose  of  subjecting  to  sale 
the  undivided  interest  of  the  attachment 
debtor.  Bernal  v.  Hovious,  17  Cal.  541;  79 
Am.  Dec.  147;  Waldraan  v.  Broder,  10  Cal. 
378;  Veach  v.  Adams,  51  Cal.  609.  The 
proof  of  the  writ  and  of  the  debt  are 
merely  prima  facie  evidence  of  the  right 
of  the  officer  to  make  the  levy  and  take 
possession  of  the  property  from  a  third 
party,  who  is  entitled  to  recover  it  upon 
proving  it  to  be  his.  Brichman  v.  Ross,  67 
Cal.  601;  8  Pac.  316.  Whenever  property 
is  found  in  the  possession  of  a  stranger 
claiming  title,  the  mere  protection  of  the 
writ  does  not  justify  its  seizure:  the  offi- 
cer must  go  further,  and  prove  that  the 
attachment  defendant  was  indebted  to  the 
attachment  plaintiff;  and  if  in  the  attach- 
ment suit  judgment  was  rendered  in  favor 
of  the  plaintiff,  that  will  establish  the  in- 
debtedness of  the  defendant;  if  not,  the 
officer  must  otherwise  prove  the  indebted- 
ness of  the  defendant,  in  order  to  justify 
his  proceeding.  Brichman  v.  Ross,  67  Cal. 
601;    8    Pac.    316.     The    sale    of    personal 


569 


JOINT  TRESPASSERS — ATTACHABLE  INTEREST — DAMAGES. 


§549 


property  ■without  change  of  possession  is 
fraudulent  as  against  the  creditors  of  the 
seller,  and  such  property  may  lawfully  be 
attached  in  the  latter's  possession  for  his 
debt;  the  purchaser  cannot  recover  the 
property  from  the  officer.  Richards  v. 
Schroder,  10  Cal.  431;  Joshua  Hendy  Ma- 
chine Works  V.  Connolly,  7G  Cal.  305;  18 
Pac.  327.  The  sale  of  the  stock  and  fix- 
tures of  a  saloon,  by  the  owner  thereof, 
to  a  former  bartender,  for  an  actual  con- 
sideration equal  to  the  full  value  thereof, 
and  not  for  the  purpose  of  hindering,  de- 
laying, or  defrauding  his  creditors,  accom- 
panied by  the  delivery  of  the  exclusive 
possession  thereof,  conveys  such  title  to 
the  purchaser  that  he  luay  demand  the 
return  of  the  property,  which  was  seized 
immediatelv  thereafter  upon  attachment. 
Howe  v.  .Johnson,  117  Cal.  37;  48  Pac.  978. 
Live-stock  seized  as  the  property  of  the 
defendant,  while  in  his  possession,  and 
which  he  formerly  owned,  may  be  claimed 
and  recovered  by  a  third  person,  to  whom 
they  had  been  sold  and  delivered  by  the 
defendant,  and  by  whom  they  had  been 
placed  in  the  hands  of  the  defendant  as 
an  agister.  Henderson  v.  Hart,  122  Cal. 
332;  54  Pac.  1110.  The  produce  of  a  ranch 
conveyed  by  the  defendant,  but  which  re- 
mained in  his  possession  after  the  convey- 
ance, becomes  the  property  of  the  grantee, 
without  delivery,  where  the  sale  was  not 
'  in  fact  fraudulent,  and  may  be  recovered 
by  him,  when  seized  on  attachment  against 
the  grantor.  Howe  v.  Johnson,  107  Cal.  67; 
40  Pac.  42. 

Joint  trespassers  jointly  liable.  Where 
a  sheriff  wrongfully  seizes  property  in  two 
attachment  suits,  and  is  notified  immedi- 
ately by  owner,  and  demand  made  for 
redelivery,  but  sells  the  property  after  re- 
ceiving bonds  of  indemnity  from  both  the 
attaching  creditors,  and  applies  the  pro- 
ceeds of  the  sale,  first  to  the  judgment  of 
the  prior  attachment,  and  the  balance,  in 
part,  to  the  second,  the  sheriff  and  each 
of  the  attaching  creditors  are  joint  tres- 
passers, and  jointly  liable  to  the  owner 
for  the  damages  sustained.  Lewis  v.  Johns, 
34  Cal.  629. 

Attachable  interest.  The  interest  of  a 
defendant  in  an  attachment  suit,  as  ten- 
ant in  common,  which  depends  upon  the 
performance  of  conditions  yet  to  be  per- 
formed, is  not  an  attachable  interest. 
Tuohv  V.  Wingfield.  52  Cal.  319;  Howell 
V.  Foster,  65  Cal.  169;  3  Pac.  647.  Crops 
grown  by  an  adverse  possessor  cannot  be 
seized  on  attachment,  in  a  suit  against  the 
legal  owner.  Smith  v.  Cunningham,  67  Cal. 
262;  7  Pac.  679.  Where  the  plaintiff  made 
a  conditional  sale  and  lease  of  personal 
property,  upon  the  breacli  of  which  he 
wa«  entitled  to  possession  thereof,  and  the 
vendee,  after  the  levy  of  an  attachment 
against  him,  made  default,  the  plaintiff, 
upon    surrendering   to   the    vendee    ail    his 


unpaid  obligations,  is  entitled  to  posses- 
sion, upon  demand  made  to  the  slieriff, 
and  he  has  a  cause  of  action  against  the 
sheriff  for  claim  and  delivery.  Kellogg  v. 
Burr,  126  Cal.  3S;  58  Pac.  306;  and  see 
Rodgers  v.  Bachman,  109  Cal.  552;  42  Pac. 
448.  The  seizure  of  jiroperty  by  a  third 
person  is  wrongful  and  unlawful,  and  the 
owner  may  maintain  an  action  against 
the  sheriff  for  its  recovery.  Woodworth 
V.  Knowlton,  22  Cal.  164.  An  ollii-er  can- 
not protect  himself  for  interfering  with 
the  property  of  a  third  person,  by  the 
plea  that  he  attached  and  sold  only  the  in- 
terest of  the  judgment  debtor;  and  where 
the  judgment  debtor  has  no  interest,  no 
harm  is  done  the  owner,  and  trosjiass  lies 
against  the  sheriff  for  anv  unlawful  inter- 
ference. Rankin  v.  Ekel",  64  Cal.  446;  1 
Pac.  895.  That  an  attaching  creditor  had 
reason  to  believe  that  the  property  was 
the  property  of  his  debtor,  does  not  jus- 
tify the  sheriff  in  seizing  such  property, 
nor  is  it  any  defense  to  an  action  by  the 
owner  for  a  conversion.  Angell  v.  Hop- 
kins, 79  Cal.  181;  21  Pac.  729.  Declara- 
tions of  ownership  of  personal  property, 
made  by  a  defendant  to  his  creditors  while 
he  is  in  possession  thereof,  do  not  affect 
the  ownership  thereof  by  a  third  party,  nor 
subject  such  property  to  attachment  in  an 
action  against  such  defendant.  Green  v. 
Burr,  131  Cal.  236;  63  Pac.  360. 

Mortgaged,  property.  Property  covered 
by  a  chattel  mortgage,  duly  executed  ami 
recorded,  cannot  be  attached  without  pay- 
ment of  the  mortgage  debt,  or  a  deposit 
of  the  amount  with  the  county  clerk  or 
county  treasurer,  payable  to  the  order  of 
the  mortgagee.  Berson  v.  Nunan,  63  Cal. 
550;  Mever  v.  Gorham,  11  Cal.  392;  Irwin 
V.  McDoVell,  91  Cal.  119;  27  Pac.  601.  A 
levy  on  mortgaged  property,  and  the  pla- 
cing of  a  keeper  in  charge  thereof,  is  a 
conversion  by  the  sheriff,  although  the 
property  is  not  moved  or  otherwise  dis- 
turbed, and  although  the  levy  is  released 
before  any  demand  is  made  by  the  mort- 
gagee. Rider  v.  Edgar,  54  Cal.  127;  Irwin 
V.  McDowell,  91  Cal.  119;  27  Pac.  601; 
and  see  Rankin  v.  Ekel,  64  Cal.  446;  1  Pac. 
895. 

Measure  of  damages.  The  measure  of 
damages  for  the  seizure  of  mortgaged 
personal  property  is  the  full  amount  of 
the  mortgage  debt,  if  the  property  is  worth 
enough  to  pay  it;  and  if  not,  then  such 
amount  only  as  it  is  worth,  and  also,  in 
either  case,  a  fair  compensation  for  loss 
of  time,  and  expenses  properly  incurred 
in  pursuit  of  the  property.  Irwin  v.  Mc- 
Dowell, 91  Cal.  119;  27  Pac.  601;  Sherman 
V.  Finch,  71  Cal.  68;  11  Pac.  847.  In  esti- 
mating the  value  of  the  property  seized, 
the  jury  may  consider  the  actual  value  of 
the  property  in  the  market  when  it  was 
seized  b}-  the  officer,  and  what  amount  it 
would  take,  in  the  market,  to  replace  the 


§550 


ATTACHMENT. 


570 


the  sale,  and  that  he  obeyed  such  instruc- 
tion.   Cassin  v.  Marshall,  18  Cal.  689. 

Shertfif's  jury.  Prior  to  the  amendment 
of  §  689,  post,  in  1891,  if  the  verdict  of 
the  sheriff's  jury  was  in  favor  of  the 
claimant,  the  sheriff  might  release  the 
levy,  unless  the  judgment  creditor  gave 
him  sufficient  indemnity;  but  the  verdict 
of  the  sheriff's  jury  against  the  claimant 
did  not  protect  the  officer  in  retaining  the 
attached  property.  Perkins  v.  Thornburgh, 
10  Cal.  190;  Sheldon  v.  Loomis,  28  Cal. 
122. 

Bight  of  claimant  of  attached  property  to  in- 
tervene.   See  note  18  Ann.  Cas.  594. 

Attack  on  attachment  by  creditors.  See  note 
35  L.  R.  A.  766. 

CODE  COMMISSIONERS'  NOTE.  Davidson  v. 
Dallas,  3  Cal.  227;  Bleven  v.  Freer,  10  Cal.  172; 
Treadwell  v.  Davis,  34  Cal.  601;  94  Am.  Dec. 
770. 


same.  Cassin  v.  Marshall,  18  Cal.  689. 
The  detriment  proximately  caused  by  the 
seizure  of  mortgaged  property  is,  not  the 
value  of  the  property,  but  the  amount  of 
the  mortgage  debt;  and  this  detriment  the 
officer  seizing  the  proi)erty  assumes  to 
make  good.  Wood  v.  Franks,  56  Cal.  217. 
In  determining  what  was  the  value  of  the 
property  at  the  time  of  the  conversion, 
evidence  is  admissible  as  to  the  cost  of  the 
property,  as  a  circumstance  to  aid  in  such 
determination.  Angell  v.  Hopkins,  79  Cal. 
181;  21  Pac.  729.  The  officer  cannot  show, 
as  a  measure  of  damages,  that  the  prop- 
erty, when  sold,  brought  full  and  fair 
auction  prices,  nor  what  the  property  sold 
for  at  the  sheriff's  sale,  nor  that  he  was 
instructed  by  the  attaching  creditor  to 
employ    a    competent    auctioneer    to    make 

§  550.  If  plaintiff  obtains  judgment,  how  satisfied.  If  judgment  be  re- 
covered by  the  plaintiff,  the  sheriff  must  satisfy  the  same  out  of  the  property 
attached  by  him  which  has  not  been  delivered  to  the  defendant,  or  a  claim- 
ant as  hereinbefore  provided,  or  subjected  to  execution  on  another  judgment 
recovered  previous  to  the  issuing  of  the  attachment,  if  it  be  sufficient  for  that 
purpose : 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  prop- 
erty sold  by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so  much 
as  shall  be  necessary  to  satisfy  the  judgment ; 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on 
the  judgment,  he  must  sell  under  the  execution  so  much  of  the  property, 
real  or  personal,  as  may  be  necessary  to  satisfy  the  balance,  if  enough  for 
that  purpose  remain  in  his  hands.  Notices  of  the  sales  must  be  given,  and 
the  sales  conducted  as  in  other  cases  of  sales  on  execution. 


Disposition  of  proceeds.  Neglect  of  sheriff 
to   pay  over  moneys.     Pol.  Code,  §  4162. 

Preference.  Claim  for  labor,  wages,  etc.  Post, 
§  1206. 

Sales   on  execution.    Post,  §§  692-709. 

Legislation  8  550.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  132,  which  had  the  word 
"shall"  instead  of  "must,"   in  each  case. 

Satisfaction  of  judgment.  Executions 
must  be  satisfied  by  the  sheriff  in  the 
order  of  attachments,  and  when  he  does 
this,  his  ministerial  duties  are  fulfilled, 
and  he  is  protected  against  any  attack  by 
reason  of  irregularity  in  the  issuance  of  a 
writ  regular  on  its  face;  but  irregularity 
in  the.  proceedings  leading  up  to  the  issu- 
ance of  the  writ  do  not  excuse  the  officer 
in  refusing  to  recognize  the  validity  of 
a  writ  regular  on  its  face,  and  in  apply- 
ing the  attached  property  to  the  satisfac- 
tion of  a  judgment  in  a  junior  attachment 
suit  (McComb  v.  Reed,  28  Cal.  281;  87  Am. 
Dec.  115);  but  an  order  of  the  bankruptcy 
court,  restraining  a  sale,  justifies  the  officer 
in  refusing  to  execute  the  process.  Alex- 
ander V.  Wilson,  144  Cal.  .5;  77  Pac.  706. 
An  action  may  be  maintained  by  an  exe- 
cution creditor  for  money  collected  by 
the    sheriff     on    an    execution.     Harvey    v. 


Foster,  64  Cal.  296;  30  Pac.  849.  The  levy 
of  an  execution,  beyond  giving  notice  of 
sale,  is  unnecessary,  where  the  property 
is  held  under  an  attachment  to  satisfy  the 
judgment.  McFall  v.  Buckeye  Grangers' 
etc.  Ass'n,  122  Cal.  468;  68  Am.  St.  Rei). 
47;  55  Pac.  253.  The  invalidity  of  prior 
attachment  liens  may  be  determined  on  a 
motion  of  the  plaintiff  for  an  order  to 
compel  the  sheriff  to  pay  over  the  proceeds 
of  the  sale  of  attached  property;  and  if 
notice  of  the  motion  is  not  given  by  the 
plaintiff  to  the  other  attaching  creditors, 
and  the  sheriff  wishes  the  decision  to  be 
binding  upon  them,  he  should  give  them 
notice  of  the  motion.  Dixey  v.  Pollock,  8 
Cal.  570.  Corporate  stock  attached  may 
be  sold  on  execution,  without  first  proceed- 
ing under  §  545,  ante,  or  §§  714-721,  post. 
West  Coast  Safety  Faucet  Co.  v.  Wulff, 
133  Cal.  315;  85  Am.  St.  Rep.  171;  65  Pac. 
622.  The  code  contains  express  directions 
to  the  sheriff  as  to  the  sale  of  attached 
property,  and  directions  therefor  are  not 
required  to  be  given  in  the  judgment;  nor 
is  the  lien  of  attachment  lost  by  taking  a 
simple  money  judgment,  without  embody- 
ing therein   directions  for  the  sale  of  the 


571 


BALANCE  AFTER  SALE — SUlTfs  ON   UNDERTAKING. 


§§  551,  552 


attached  property.  Low  v.  Henry,  9  Cal. 
538;  Porter  v.  Pico,  55  Cal.  165;  Anderson 
-V.  Goff,  72  Cal.  65;  1  Am.  St.  Rep.  34;  l."? 
Pae.  73.  The  segregation  of  interests  lield 
in  common  cannot  be  made  by  the  sheriff 
or  his  keej)ers  with  the  consent  of  the  ten- 
ants in  common,  but  without  the  consent 
of  the  attaching  creditor:  the  latter  has 
the  right  to  insist  upon  the  sale  of  the 
undivided  interest  of  the  defendant  in 
the  common  property.  Veach  v.  Adams,  51 
Cal.  609.  The  sheriff  has  no  right  to  sell 
at  private  sale,  nor  to  authorize  any  one 
ehe  to  do  so.  Sheehy  v.  Graves,  58  Cal. 
449.  One  who  purchases  property  under  a 
judgment  in  an  attachment  suit  may  main- 
tain an  action  to  enjoin  another,  who  sub- 
sequently attaches  the  same  property  in  a 
suit    against     the    same     defendant,    from 


■proceeding  to  sell  the  property  under  his 
subse<juent  lien.  Porter  v.  Pico,  55  Cal.  165. 
The  title  of  the  purchaser  of  shares  of 
stock  at  an  e.^ecution  sale  is  not  affected 
by  the  failure  of  the  officer  to  show  that 
he  levieil  before  selling.  McFall  v.  Buck- 
eye Grangers'  etc.  Ass'n,  122  Cal.  468;  08 
Am.  St.  Rep.  47;  55  Pac.  253. 

Prorating  proceeds  of  attached  property  among 
creditors.    .Si  >■  luiii-  Ann.  (as.   IDIJC,  -Id.'^. 

CODE  COMMISSIONEKS'  NOTE.  The  torm 
"judgment"  means  a  final  one.  Wright  v.  Row- 
land, 4  Keycs,  l(i5;  36  How.  Pr.  24^.  Tho  ap- 
jiliciition  of  the  atlarhing  oredilor  to  ompel  the 
sheriff  to  pay  over  the  proceeds  of  properly  at- 
liH.'hed,  there  being  contlicting  claims  between 
several  attaching  creditors,  may  be  made  by  mo- 
tion. If  notice  of  the  motion  is  not  given  by  the 
])iirty  to  the  other  attaching  creditors,  it  is  the 
duty  of  the  sheriff  to  do  so,  if  he  wishes  the  de- 
cision to  bind  them.    Dixey  v.  Pollock,  8  Cal.  570. 


§  551.  When  there  remains  a  balance  due,  how  collected.  If,  after  selling 
all  the  property  attached  hy  him  remaining  in  hi.s  hands,  and  applying  the 
proceeds,  together  with  the  proceeds  of  any  debts  or  credits  eoUectetl  by 
him,  deducting  his  fees,  to  the  payment  of  the  judgment,  any  balance  shall 
remain  due,  the  sheriff  must  proceed  to  collect  such  balance,  as  upon  an 
execution  in  other  cases.  Whenever  the  judgment  shall  have  been  paid, 
the  sheriff,  upon  reasonable  demand,  must  deliver  over  to  the  defendant  the 
attached  property  remaining  in  his  hands,  and  any  proceeds  of  the  property 
attached  unapplied  on  the  judgment. 

Proceedings  supplementary  to  execution.  Post, 
§§  714  et  seq. 

Legislation  8  551.  Enacted  March  11,  1873; 
■based  on  Practice  Act,  §  133,  which  had  the  word 
"shall"  instead  of  "must,"  in  each  instance. 

Deposit    with    clerk     not     payment.     A 

deposit,  by  the  defendant,  of  the  amount 
of  the  judgment  against  him,  with  the 
■clerk  of  the  court,  pending  an  appeal  by 
the  plaintiff,  is  not  such  a  payment  as 
entitles  him  to  a  release  of  the  property 
held  under  the  writ  of  attachment.  Sagely 
V.  Livermore,  45  Cal.  613. 

§  552.  When  suits  may  be  commenced  on  the  undertaking.  If  the  execu- 
tion be  returned  unsatisfied,  in  whole  or  in  part,  the  plaintiff  may  prosecute 
any  undertaking  given  pursuant  to  section  five  hundred  and  forty  or  sec- 
tion five  hundred  and  fifty-five,  or  he  may  proceed,  as  in  other  cases,  upon 
the  return  of  an  execution. 


Surplus  moneys.  After  the  satisfaction 
of  the  judgment  of  the  attachment  credi- 
tor, any  surplus  moneys  that  remain  are 
subject  to  the  rights  of  the  judgment 
debtor  or  his  assignee  (Sexey  v.  Adkison, 
40  Cal.  408);  and  they  are  liable  to  gar- 
nishment.   Graham  v.  Endicott,  7  Cal.   H4. 

CODE    COMMISSIONERS'   NOTE.      When    the 

attachment  is  satisfied,  the  property  not  disposed 
of,  as  well  as  surplus  moneys,  are  subject  to  the 
riirhts  of  the  debtor  or  his  assignee.  Sexey  v. 
Adkison,  40  Cal.  408. 


Legislation  8  552.  Enacted  March  11,  1872; 
■based  on  Practice  Act,  §  134,  which  read  as  at 
present,  except  for  the  changes  in  the  section 
numbers. 

Jurisdiction.  Where  a  judgment  for 
costs,  in  an  action  brought  in  the  superior 
court  in  which  an  attachment  is  issued,  is 
rendered  for  less  than  three  hundred  dol- 
lars, and  an  appeal  therefrom  is  taken  to 
the  supreme  court,  and  the  execution  of 
the  judgment  stayed,  a  justice's  court,  and 
the  superior  court  on  appeal,  have  juris- 
diction of  an  action  to  enforce  the  bond 
given  to  secure  the  payment  of  the  costs 
in  the  attachment  suit,  although  the  ap- 
peal  from     the    judgment    therein    is    still 


pending  and   undetermined.     Karrv   v.   Su- 
perior Court,  162  Cal.  281;  128  Pac.  760. 

Demand.  The  object  of  a  demand  is  to 
enable  a  i)arty  to  perform  his  contract  or 
discharge  his  liability,  according  to  the 
nature  of  it,  without  a  suit  at  law.  There 
is  no  stereotyped  form  or  manner  of  de- 
mand: any  language  intended  to  constitute 
a  demand,  and  which  plainly  informs  the 
party  of  whom  the  demand  is  made  that 
he  is  required  to  perform  the  duty  or  obli- 
gation to  which  the  demand  refers,  is  suth- 
cient;  but,  like  all  allegations  of  fact,  the 
demand  should  be  pleaded  with  directness 
and   certainty.    Mullally  v.  Townsend,  119 


§552 


ATTACHMENT. 


572 


Cal.  47;  50  Pae.  1066.  A  demand  for  the 
redelivery  of  property  released  by_an  un- 
dertaking given  under  §§  554,  555,  post, 
mav  be  made  by  either  the  officer  or  the 
plaintiff  in  the  attachment  suit.  Brownlee 
V.  Eiffenburg,  95  Cal.  447;  30  Pae.  587. 
A  demand  that  the  sureties  fulfill  the  obli- 
gation as  expressed  in  the  undertaking  is 
sufficient:  the  fact  that  such  demand  is 
coupled  with  a  demand  that  the  defendant 
pay  the  amount  of  judgment  recovered 
in  the  attachment  suit  does  not  affect  it, 
although  the  undertaking  was  not  to  pay 
the  judgment  recovered,  where  such  judg- 
ment was  less  than  the  conceded  value  of 
the  goods.  Mullally  v.  Townsend,  119  Cal. 
47;  50  Pae.  1066.  The  return  of  a  sheriff 
on  an  execution  issued  in  an  attachment 
suit,  showing  a  demand  upon  the  officers 
of  the  defendant  corporation  for  the  pay- 
ment of  the  amount  named  in  the  execu- 
tion, and  that  he  was  informed  by  the 
officers  of  the  corporation  that  they  had 
no  property  of  the  defendant  in  their  pos- 
session, sufficiently  shows  that  the  defend- 
ant's property,  previously  seized  under 
attachment,  and  released  on  bond,  was  not 
delivered  to  the  sheriff  pursuant  to  the 
provisions  of  the  bond.  Hammond  v.  Starr, 
79  Cal.  556;  21  Pae.  971.  Where  the  judg- 
ment recovered  was  less  than  the  value 
of  the  property  attached,  as  fixed  in  the 
bond  for  release,  and  less  than  its  admitted 
value  at  the  time  of  the  release,  the  pay- 
ment of  the  amount  of  the  judgment  is 
the  full  measure  of  the  obligation  of  the 
sureties,  and  a  demand  upon  them  for  the 
amount  of  such  judgment  is  sufficient, 
where  there  was  a  refusal  of  the  defend- 
ant to  redeliver  the  property.  Mullally 
V.  Townsend,  119  Cal.  47;  50  Pae.  1066. 
Where  the  undertaking  was,  that,  in  case 
of  default  by  the  principal  to  redeliver 
the  property  to  satisfy  the  judgment 
against  him,  the  undertakers  would,  on 
demand,  pay  the  value  of  the  property 
released,  demand,  and  refusal  to  pay  the 
judgment  and  redeliver  the  property  re- 
leased, are  not  sufficient  to  fix  the  lia- 
bility of  the  sureties:  there  must  also  be 
a  demand  for  the  payment  of  the  value  of 
the  property.  Pierce  v.  Whiting,  63  Cal. 
538;  Mullally  v.  Townsend,  119  Cal.  47; 
50  Pae.  1066.  Where  the  undertaking  was, 
that  the  defendant  would,  on  demand,  pay 
a  judgment,  if  obtained  by  the  plaintiff, 
a  complaint  to  recover  on  the  undertaking 
is  insufficient,  which  contains  no  averment 
of  any  demand,  and  no  allegation  showing 
the  amount  of  the  judgment  to  be  unpaiil. 
Kanouse  v.  Brand,  11  Cal.  App.  669;  106 
Pae.  120.  Where  the  undertaking  was, 
that  the  defendant  would  pa^'  the  amount 
of  the  judgment  on  demand,  the  sureties 
become  immediately  liable,  without  de- 
mand or  notice,  where  there  was  a  demand 
upon  and  refusal  by  the  defendant  (Gard- 
ner V.  Donnelly,  86  Cal.  367;  24  Pae.  1072); 
and  -where  the  liability  was,  by  the  terms 


of  the  bond,  joint  and  several,  and  ther 
principal  was  not  a  party  to  the  suit,  de- 
mand upon  the  sureties  alone  is  sufficients 
Mullally  v.  Townsend,  119  Cal.  47;  50  Pae. 
1066.  Demand  need  not  be  made  upon 
an  insolvent  debtor  for  the  return  of  the- 
property,  before  an  action  can  be  main- 
tained against  the  sureties  on  his  bond 
to  release  the  attached  property.  Eosen- 
thai  V.  Perkins,  123  Cal.  240;  55  Pae.  804. 
The  sheriff's  return  upon  execution  issued 
in  attachment  may  show  a  sufficient  de- 
mand. Hammond  v.  Starr,  79  Cal.  556;  21 
Pae.  971. 

Actions  on  undertaking.  This  section, 
makes  the  issuance  and  return  of  an  exe- 
cution a  condition  precedent  to  the  right 
to  commence  an  action  upon  an  undertak- 
ing given  pursuant  to  §  555,  post.  Brown- 
lee V.  Eiffenburg,  95  Cal.  447;  30  Pae.  587; 
Eosenthal  v.  Perkins,  6  Cal.  Unrep.  21; 
53  Pae.  444.  The  direct  collection  from 
the  sureties,  of  the  judgment  against  the 
defendant,  is  not  authorized.  HoUaday  v. 
Hare,  69  Cal.  515;  11  Pae.  28.  The  plain- 
tiff, being  the  real  party  in  interest,  may 
sue  on  a  bond  executed  in  the  name  of 
the  sheriff  (Curiae  v.  Packard,  29  Cal. 
194) ;  and  he  may  institute  and  maintain 
his  action  against  the  sureties  on  the  same- 
day  on  which  payment  was  demanded  of 
and  refused  by  the  defendant.  Gardner 
V.  Donnelly,  86  Cal.  367;  24  Pae.  1072. 
Immediately  upon  demand  on  the  defend- 
ant, and  his  failure  to  redeliver  the  prop- 
erty as  required  by  the  terms  of  the- 
undertaking,  the  sureties  become  liable  to 
pay  the  full  value  of  the  property  at- 
tached. Metrovich  v.  Jovovich,  58  Cal. 
341.  Where  the  defendant,  and  one  who- 
has  acquired  a  mortgage  lien  upon  the- 
property  after  its  release  upon  the  giving 
of  the  delivery  bond,  refuse  to  redeliver 
the  property  after  judgment,  except  upon 
the  payment  of  the  amount  of  the  mort- 
gage lien,  there  is  such  a  refusal  as  to 
fix  the  liability  of  the  sureties  on  the 
undertaking:  the  plaintiff  is  not  bound  to 
accept  the  property  burdened  with  a  lien 
placed  upon  it  after  its  release  from  at- 
tachment. Mullally  V.  Townsend,  119  Cal. 
47;  50  Pae.  1066.  The  plaintiff  is  not 
required  to  look  to  the  undertaking  alone: 
he  may  proceed  by  execution  against  the- 
property  of  the  defendant,  and  if  the  exe- 
cution is  returned  unsatisfied,  he  may 
proceed  upon  the  undertaking.  Low  v.. 
Adams,  6  Cal.  277.  The  undertaking  can- 
not be  enforced,  pending  appeal,  where  a 
stav  bond  is  given  bv  the  defendant.. 
Ayfes  V.  Burr,  132  Cal.  125;  64  Pae.  120. 

Pleading,  variance.  Where  the  complaint,, 
in  an  action  upon  the  undertaking,  alleges- 
that  demand  was  made  upon  the  defendant 
"for  the  payment  of  said  judgment,  with  in- 
terest thereon,  and  costs,"  and  that  defend- 
ant neglected  and  refused  "to  pay  the  bal- 
ance due  on  said  judgment,  or  any  portion 
thereof,"  the  allegation  of  demand  and  re- 


573 


PLEADING,   VARIANCE — LIABILITY  OF  SURETIES. 


§552 


fusal  is  sufficient,  in  the  absence  of  a  sjxvial 
demurrer,  where  a  j)ortiou  of  the  judgineiit 
had  already  been  pai<l.  Ciardner  v.  Dun- 
nelly,  86  Cal.  367;  24  Pac.  1U72.  The  com- 
plaint in  an  action  on  an  undertaking  given 
to  procure  a  release  of  attached  property, 
must  allege  that  the  attachment  was  dis- 
charged. Palmer  v.  Melvin,  6  Cal.  652; 
Williamson  v.  Blattan,  9  Cal.  500;  Jenner 
V.  Stroh,  52  Cal.  504;  and  see  Los  An- 
geles County  V.  Babcock,  45  Cal.  252. 
Where,  by  the  terms  of  the  undertaking,  a 
demand  is  necessary  to  fix  the  liability  of 
the  sureties,  the  complaint  must  contain 
the  averment  of  such  demand.  Pierce  v. 
Whiting,  63  Cal.  538.  The  redelivery  of 
the  property  by  the  sheriff  to  the  defend- 
ant need  not  be  alleged:  it  is  sufficient  to 
aver  the  order  of  the  court  discharging  the 
attachment  upon  the  giving  of  the  under- 
taking. McMillan  v.  Dana,  18  Cal.  339; 
Gardner  v.  Donnelly,  86  Cal.  367;  24  Pac. 
1072.  Where  a  bond  is  given  before  the 
levy  of  attachment,  for  the  purpose  of 
preventing  the  attachment  or  the  comple- 
tion thereof,  the  complaint  must  allege 
that  the  sheriff  did  not  complete  the  levy. 
Coburn  v.  Pearson,  57  Cal.  306.  An  alle- 
gation, that  the  judgment  in  the  attach- 
ment suit  was  recovered,  entered,  and 
docketed,  is  sufficient,  where  the  under- 
taking reads,  "If  the  plaintiff  shall  re- 
cover judgment  in  said  action,  we  will 
pay,"  etc.  McCutcheon  v.  Weston,  65  Cal. 
37;  2  Pac.  727.  Where  the  undertaking 
recites  that  it  was  given  to  prevent  the 
levy,  and  the  complaint  alleges  that  it 
was  given  to  release  the  property  attached, 
there  is  no  material  variance,  if  the  com- 
plaint avers  the  issuance  of  the  attach- 
ment, that  under  it  the  sheriff  attached 
certain  property,  and  that  the  defendant, 
being  desirous  of  having  the  attached  prop- 
erty released,  executed  the  undertaking  set 
forth  in  the  complaint,  which  undertaking, 
after  reciting  the  issuance  of  the  writ 
and  command  thereof,  states,  "Now,  there- 
fore, we,  in  consideration  of  the  premises, 
and  to  prevent  the  levy  of  said  attach- 
m.ent,"  etc.  Preston  v.  Hood,  64  Cal.  405; 
1  Pac.  487;  McCutcheon  v.  Weston,  65 
Cal.  37;  2  Pac.  727. 

Liability  of  sureties.  Actual  ownership 
of  the  propert}'  attached  is  no  concern  of 
the  surety;  he  can  meddle  with  such  prop- 
erty, and  remove  it  beyond  the  reach  of 
the  attaching  creditor,  only  by  under- 
taking that  if  the  plaintiff  shall  recover 
judgment  in  the  action,  such  attached  and 
released  property  shall  be  restored  to  the 
attaching  officer;  whether  it  belongs  to  a 
third  party,  or  for  any  other  reason  is  not 
legally  subject  to  the  attachment,  is  a 
question  to  be  litigated  between  the  plain- 
tiff and  the  adversary  claimant,  and  in  no 
way  affects  the  surety's  express  covenant 
to  restore;  the  fact  that  the  property 
belongs  to  a  defendant  against   whom   no 


judgment  was  recovered  is  immaterial,  if 
judgment  was  recovered  against  any  of 
tlie  ilcfendants.  McCormick  v.  National 
Surety  Co.,  134  Cal.  510;  66  Pac.  741.  The 
sureties  are  not  released  by  the  subsequent 
discharge  of  the  defendant  in  bankruptcy, 
where  such  proceedings  are  instituted  more 
than  four  months  after  the  levying  of  the 
attachment:  in  such  case  the  defendant  is 
not  entitled  to  have  the  attachment  lien 
discharged;  if  the  proceedings  in  bank- 
ruptcy have  not  the  effect,  under  the  bank- 
ruptcy law,  of  discharging  the  attachment 
levied  upon  the  property  of  the  defendant 
if  an  undertaking  had  not  been  given, 
they  do  not  have  the  effect  of  releasing 
the  undertaking  given.  Harding  v.  Minear, 
54  Cal.  502.  Where,  at  the  commencement 
of  a  jiroceeding  in  insolvency,  there  is  no 
attacliment  in  force  upon  which  it  can 
operate,  an  attachment  against  the  insol- 
vent debtor  having  been  previously  dis- 
solved by  a  bond  given  for  that  purpose, 
the  liability  of  the  sureties  on  such  Ijond 
is  not  released  or  affected  by  the  insol- 
vency proceeding.  Eosenthal  v.  Perkins, 
123  Cal.  240;  55  Pac.  804.  In  an  action 
upon  an  undertaking,  no  collateral  inquiry 
can  be  made  as  to  the  fact  of  levy,  or  of 
the  property  being  subject  to  it:  the  con- 
dition of  the  bond  is  to  answer  the  judg- 
ment, and  if  it  is  regular,  it  is  not  at  all 
important  whether  the  property  is  leviable 
or  not,  for  by  the  contract  the  parties 
have  bound  themselves  to  pay  in  any 
event,  independently  of  all  considerations 
of  this  sort.  McMHlan  v.  Dana,  18  Cal. 
339;  Pierce  v.  Whiting,  63  Cal.  538. 
Irregularities  in  the  affidavit  and  under- 
taking, or  in  the  proceedings  to  procure 
the  attachment,  if  waived  in  the  attach- 
ment suit,  cannot  be  taken  advantage  of 
by  the  sureties  in  a  collateral  proceeding 
on  the  undertaking  given  to  secure  the  re- 
lease of  the  attachment.  Hammond  v. 
Starr,  79  Cal.  556;  21  Pac.  971.  An  un- 
dertaking required  by  a  sheriff  for  the 
release  of  exempt  property,  the  exemption 
having  been  claimed,  is  void  for  want  of 
consideration.  Servant!  v.  Lusl^;,  43  Cal. 
238.  Denials  on  information  and  belief, 
made  by  the  sureties  in  an  action  upon 
their  undertaking,  in  relation  to  matters 
which  could  easily  be  ascertained  by  ref- 
erence to  the  record  of  the  court  m  the 
attachment  proceedings,  and  concerning 
which  the  affirmative  allegations  of  the 
answer  show  that  the  defendant  had 
knowledge  or  information,  are  not  per- 
missible, and  do  not  raise  an  issue  on 
matters  thus  attempted  to  be  denied.  Mul- 
lally  V.  Townsend,  119  Cal.  47;  50  Pac. 
1066.  Where  the  principals  in  a  bond, 
given  to  a  sheriff"  to  release  goods  from 
attachment,  tender  to  the  plaintiff  the  full 
amount  of  his  debt  and  costs,  and  the 
plaintiff  refuses  to  receive  the  tender,  the 
sureties    are    discharged,   if    the   judgment 


S553 


ATTACHMENT. 


574 


debtor  thereafter  becomes  insolvent.  Cu- 
riae V.  Packard,  29  Cal.  194;  Hayes  v. 
Josephi,   26    Cal.   535. 

Effect  of  recitals  in  bond.  Whatever  an 
obligor  recites  in  a  bond  to  be  true,  may 
be  taken  as  true  against  him,  and  need  not 
be  averred  in  the  complaint  on  such  bond, 
nor  proved  at  the  trial.  Smith  v.  Fargo, 
57  Cal.  157;  McMillan  v.  Dana,  18  Cal. 
339;  Pierce  v.  Whiting,  63  Cal.  538.  Where 
the  bond  sued  upon,  as  set  out  in  the 
complaint,  recites  that  the  property  of 
the  defendant  had  been  seized  by  the 
sheriff  under  the  writ  of  attachment,  and 
that  the  bond  was  given  for  the  purpose 
of  procuring  the  release  of  such  property 
from  the  levy,  it  is  unnecessary  to  make, 
in  the  complaint,  a  distinct  allegation  of 
the  fact  of  the  levy.  Smith  v.  Fargo,  57 
Cal.  157.  Where  tbe  goods  were  in  fact 
released  as  a  consequence  of  the  bond 
being  given,  and  the  undertaking  recited 
that  it  was  given  pursuant  to  an  order 
of  the  court  requiring  it  to  be  given,  and 
the  officer  accepted  the  bond  and  surren- 
dered the  property,  it  must  be  presumed 
that  an  order  discharging  the  attachment 
was  made  pursuant  to  §§  554,  555,  post, 
and  that  the  officer  regularly  performed 
his  dutv  in  releasing  the  goods.  Rosenthal 
V.  Perkins,  123  Cal.  240;  55  Pac.  804.  A 
mistake  in  the  recital,  as  to  the  amount 
for  which  the  attachment  issued,  may  be 
explained  and  corrected  by  parol.  Palmer 
V.  Vance,  13  Cal.  553. 

Where  return  of  execution  unsatisfied  is 
necessary  to  action  on  bond.  The  return 
of  an  execution  unsatisfie<l,  in  whole  or  in 
part,  must  be  made,  before  the  plaintiff 
can  maintain  an  action  upon  a  statutory 
bond  given  under  §§  554,  555,  post.  Browu- 
lee  V.  Riffenburg,  95  Cal.  447;  30  Pac. 
587.  An  action  on  a  common-law  bond, 
given  in  lieu  of  the  undertaking  prescribed 
by  §  555,  post,  where  the  condition  is, 
that  the  "defendant  will,  on  demand,  pay 
to  the  jjlaintiff  whatever  judgment  may 
be  recovered  in  said  action,"  may  be  main- 
tained on  the  refusal  of  defendant  to  pay 
such  judgment  on  demand,  without  return 
of  the  execution  unsatisfied  in  whole  or 
in  part.  Smith  v.  Fargo,  57  Cal.  157.  The 
issuance  and  return  of  the  execution  un- 
satisfied is  not  necessary  prior  to  an 
action  on  a  common-law  bond  given  in 
lieu  of  the  undertaking  provided  for  by 
§  540,  ante,  where  the  undertaking  ex- 
pressed is,  not  that  the  attachment  debtor 
will  pay  the  judgment,  but  a  distinct  and 
positive  agreement  that  the  sureties  will 
themselves  pay  the  amount  on  demand. 
Palmer  v.  Vance,  13  Cal.  553.  The  return 
of   the  execution   unsatisfied,   before   com- 

§  553.     If  defendant  recovers  judgment,  what  the  sheriff  is  to  deliver.     If 

the  defendant  recovers  judgment  against  the  plaintiff,  and  no  appeal  is  per- 
fected and  undertaking  executed  and  filed  as  provided  in  section  nine  hun- 


mencing  action  upon  the  undertaking 
given  to  secure  the  release  of  the  attach- 
ment, is  not  necessar}',  where  the  defend- 
ant in  the  attachment  suit  commenced 
insolvency  proceedings  under  the  act  of 
1880,  after  the  release  of  the  attachment. 
Rosenthal  v.  Perkins,  123  Cal.  240;  55  Pac. 
804. 

Measure  of  damages.  In  an  action  on 
the  undertaking,  where  a  portion  of  the 
attached  property  was  levied  upon  and 
sold  under  execution  upon  the  judgment, 
the  measure  of  damages  is  the  full  value 
of  the  property  attached,  less  the  amount 
of  the  proceeds  of  the  sale  (Metrovich  v. 
Jovovich,  58  Cal.  341);  and  in  an  action 
on  the  undertaking  given  for  the  release 
of  the  attached  jiroperty,  the  measure  of 
damages  is  the  value  of  the  property  re- 
leased, not  exceeding  the  amount  recov- 
ered in  the  attachment  suit,  with  interest 
thereon  until  the  date  of  judgment  in  the 
action  on  the  bond.  Hammond  v.  Starr,  79 
Cal.  556;  21  Pac.  971.  An  agreement  to 
pay  the  value  of  property  released  cannot 
be  extended  to  include  the  liability  of  the 
defendant  in  the  attachment  suit,  where 
the  sureties  do  not  expressly  undertake  to 
pav  the  amount  of  the  judgment  recovered. 
Curtin  v.  Harvey,  120  Cal.  620;  52  Pac. 
1077.  The  rights  and  remedies  of  the  par- 
ties to  a  contract  are  to  be  determined 
according  to  the  terms  of  the  contract;  for 
the  law  binds  a  party  to  a  contract,  only 
according  to  its  terms;  and  the  liability 
of  sureties  is  not  to  be  extended  beyond 
the  terms  of  their  contract;  to  the  extent, 
and  in  the  manner,  and  under  the  circum- 
stances pointed  out  in  their  obligation, 
thej"  are  bound,  but  no  further;  and  they 
are  entitled  to  stand  on  its  precise  terms. 
Pierce  v.  Whiting,  63  Cal.  538;  Curtin  v. 
Harvey,  120  Cal.  620;  52  Pac.  1077.  The 
sureties  on  an  undertaking  given  for  the 
release  of  an  attachment  may  bind  them- 
selves and  become  liable  for  such  other 
sums,  in  addition  to  the  amount  sued  for, 
as  may  thereafter  become  due  from  the 
defendant  to  the  plaintiff  under  the  con- 
tract upon  which  the  action  is  based;  and 
such  liability  also  includes  amounts  for 
which  the  defendant  may  become  liable 
to  the  plaintiff  under  said  contract,  on 
their  failure  to  receive  and  pay  for  goods 
prepared  and  offered  for  delivery,  which, 
the  defendant  improperly  refused  to  ac- 
cept. Crocker  v.  Field's  Biscuit  etc.  Co.,  9S 
Cal.  532;   29  Pac.  225. 

CODE  COMMISSIONERS'  NOTE.  The  under- 
taking is  not  a  substitution  of  security.  Its  only 
operation  was  to  release  the  property  from  the 
custody  of  the  sheriff,  pending  the  suit.  Low  v. 
Adams,  6  Cal.  277. 


575 


APPEAL  FROM  JUDGMENT — DISCHARGE  AND  RELEASE. 


§554 


dred  and  forty-six  of  this  code,  any  undcrtakinfi  received  in  the  action,  all 
the  proceeds  of  sales  and  money  collected  by  the  sheriff,  and  all  the  proi)erty 
attached  remaining  in  the  sheriff's  hands,  must  be  delivered  to  the  defend- 
ant or  his  agent,  the  order  of  attachment  be  discharged,  and  the  i)i-operty 
released  therefrom. 

pending  an  appeal.  Loveland  v.  Alvord 
ConsoJ.  Quartz  Mining  Co.,  76  Cal.  562; 
18  Pac.  6S2. 

Action  on  undertaking.  The  omission  to 
allege  a  breach  of  the  contract,  or  that  a 
demand  was  made,  in  an  action  against 
the  sureties  in  an  undertaking,  renders  the 
complaint  fatally  defective.  Morgan  v, 
Menzies,  60  Cal.  341. 

Discharge  of  attachment.  The  fact  that 
the  time  for  appeal  from  a  judgment  in 
the  attachment  suit,  in  favor  of  the  de- 
fendant, has  not  expired,  and  that  the 
judgment  is  not  final  in  that  regard,  does 
not  limit  its  effect  upon  the  attachment 
(Aigcltinger  v.  Whelan,  133  Cal.  110;  65 
Pac.  125;  Witherspoou  v.  Cross,  i;!o  Cal. 
96;  67  Pac.  18);  and  after  such  judgment 
the  defendant  can  make  a  valid  transfer  of 
the  property.  Loveland  v.  Alvord  Cousol. 
Quartz  Mining  Co.,  76  Cal.  562;  18  Pac. 
682.  A  nonsuit  discharges  the  attachment, 
and  the  obligation  of  the  undertaking  un- 
der §  555,  post,  notwithstanding  the  re- 
versal of  the  judgment  on  appeal,  and  a 
subsequent  new  trial,  in  which  judgment  is 
given  for  the  plaintiff:  after  such  nonsuit, 
the  undertaking  given  to  procure  the  at- 
tachment must  be  delivered  to  the  defend- 
ant. Hamilton  v.  Bell,  123  Cal.  93;  55  Pac. 
758.  The  lien  of  the  attachment  ceases  on 
dismissal  of  suit,  and  a  subsequent  rein- 
statement of  the  case  by  the  court  cannot 
restore  the  attachment  so  as  to  affect  the 
right  of  a  third  party.  O'Connor  v.  Blake, 
29   Cal.   312. 


Legislation  8  553.  1.  Enacted  March  11,  1872 
(based  on  I'raetiee  Art,  §  135,  which  liad  the 
word  "shall"  instead  of  "must,"  before  "be  deliv- 
ered"), and  then  read:  "If  tlie  defendant  recover 
judgment  against  the  plaintiff,  any  undertaking 
received  in  the  action,  all  the  proceeds  of  -sales 
and  money  collected  by  the  sheriff,  and  all  the 
property  attached  remainini;  in  the  sheriff's  hands, 
must  be  delivered  to  the  defendant  or  his  agent. 
The  order  of  attachment  shall  be  discharged,  and 
the  property  released  therefrom." 

2.  Amendment  by  Stats.  1901,  p.  140;  un- 
constitutional.     See  note  ante,  §  5. 

3.  .\mended  by  Stats.  1907.  p.  708;  the  code 
commissioner  saying,  "The  amendment  consists 
in  adding  the  words  'and  no  appeal  is  perfected 
and  undertaking  executed  and  tiled  as  provided 
in  §  937,'  it  being  intended  by  this  amendment 
and  a  proposed  amendment  to  §  937  that  an  at- 
tachment should  be  left  in  force  pending  an  ap- 
peal, though  defendant  had  recovered  judgment, 
if  the  plaintiff  gave  the  required  undertalving. 
The  legislature  failed,  however,  to  pass  the  pro- 
posed amendment  to  §  937,  so  the  aljove-mcntioned 
amendment  has  no  present  effect." 

4.  Amended  by  Stats.  1909,  c.  631,  changing, 
in  the  addition  of  1907,  the  words  "section  nine 
hundred  and  thirty-seven"  to  "section  nine  hun- 
dred and  forty-six  of  this  code." 

Effect  of  appeal.  The  attachment  re- 
mains in  force,  on  appeal  from  a  judgment 
in  favor  of  the  defendant,  where  the  un- 
dertaking required  by  §  946,  post,  is  given. 
Primm  v.  Superior  Court,  3  Cal.  App.  208; 
84  Pac.  786.  After  judgment  in  favor  of 
the  defendant  in  a  justice's  court,  the  at- 
tachment is  discharged;  and  as  the  attach- 
ment is  merely  a  creation  of  the  statute, 
its  existence  and  operation  continue  no 
longer  than  the  statute  provides;  and  there 
being  no  provision  prior  to  the  amend- 
ments of  1907  and  1909  for  the  giving  of 
a  stay  bond  on  appeal,  the  sheriff  was  not 
required    to    retain    custody    of     property, 

§  554.  Proceedings  to  release  attachments.  Whenever  the  defendant  has 
appeared  in  the  action,  he  may,  upon  reasonable  notice  to  the  plaintiff,  apply 
to  the  court  in  which  the  action  is  pending,  or  to  the  judge  thereof,  for  an. 
order  to  discharge  the  attachment,  wholly  or  in  part;  and  upon  the  execu- 
tion of  the  undertaking  mentioned  in  the  next  section  an  order  may  be 
made,  releasing  from  the  operation  of  the  attachment  any  or  all  of  the  prop- 
erty attached ;  and  all  of  the  property  so  released,  and  all  of  the  proceeds 
of  the  sales  thereof,  must  be  delivered  to  the  defendant,  upon  the  justifica- 
tion of  the  sureties  on  the  undertaking,  if  refiuired  by  the  plaintiff.  Such 
justification  must  take  place  within  five  days  after  notice  of  the  filing  of 
such  undertaking. 


Appearance.    Post,  §  1014. 

Legislation  §  554.  1.  Enacted  March  11,  1872  ; 
based  on  Practice  Act,  §  136,  as  amended  by 
Stats.  1863,  p.  305,  which  had  (1)  the  words 
"shall  have"  instead  of  "has,"  before  "appeared 
in,"  (2)  the  words  "or  to  a  county  judge"  after 
"judge  thereof,"  (3)  the  words  "such  order  may 
be  granted"  instead  of  "an  order  may  be  made," 
and  (4)  did  not  have  the  word  "must"  before 
"be    delivered."      When    enacted   in    1872,    §   554 


read  as  at  present,  except  for  the  addition  made 
in  1907,  and  that  it  contained  the  words  "or  to 
a   county  judge." 

2.  Amended  by  Code  Amdts.  1880,  p.  4, 
omitting  the  words  "or  to  a  county  judge." 

3.  Amendment  by  Stats.  190'l,  p.  141;  un- 
constitutional.     See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907.  p.  709,  adding 
the  last  sentence;  the  code  commissioner  saying. 
"The  amendment  fixes  the  time  within  which  the 
sureties  must  justify,  if  required  by  the  plaintiff." 


555 


ATTACHMENT. 


576 


Appearance.  A  notice  of  motion  to  dis- 
solve an  attachment  is  not  an  appearance; 
but  the  plaintiff  may  require  an  appear- 
ance as  a  condition  of  moving  to  dissolve 
the  attachment.  Glidden  v.  Packard,  28 
Cal.   649. 

Application  for  release  of  attachment. 
After  the  sheriff's  return  to  a  writ  of  at- 
tachment, a  defendant,  who  seeks  the  re- 
lease of  attached  property,  must  apply  to 
the  court  for  an  order  of  release.  Kanouse 
V.  Brand,  11  Cal.  App.  669;  106  Pac.  120; 
San  Francisco  Sulphur  Co.  v.  ^tna  In- 
demnity Co.,  11  Cal.  App.  695;  106  Pac. 
111. 


Undertaking.  The  condition  of  a  bond 
given  to  release  attached  property  requires 
the  redelivery  thereof  to  the  sheriff,  if  the 
plaintiff  recovers  any  judgment  in  the 
action.  McCormick  v.  National  Surety  Co., 
134  Cal.  510;  66  Pac.  741.  The  bond  for 
the  release  of  an  attachment  does  not 
operate  as  a  stay  bond.  Bailey  v.  ^tna 
Indemnity  Co.,  5  Cal.  App.  740;  91  Pac. 
416. 

Giving  of  statutory  bond  to  dissolve  attach- 
ment as  bar  to  motion  to  quasb.  See  note  12 
Ann.  Cas.  170. 

CODE  COMimSSIONEES'  NOTE.  See  note  to 
§  555  of  this  code. 


§  555.  Attachment,  in  what  cases  it  may  be  released  and  upon  what  terms. 
Before  making  such  order,  the  court  or  judge  must  require  an  undertaking 
on  behalf  of  the  defendant,  by  at  least  two  sureties,  residents  and  free- 
holders, or  householders,  in  the  state,  to  the  effect  that  in  case  the  plaintiff 
recovers  judgment  in  the  action,  defendant  will,  on  demand,  redeliver  the 
attached  property  so  released  to  the  proper  officer,  to  be  applied  to  the  pay- 
ment of  the  judgment,  or,  in  default  thereof,  that  the  defendant  and  sureties 
will,  on  demand,  pay  to  the  plaintiff  the  full  value  of  the  property  released, 
not  exceeding  the  amount  of  such  judgment.  The  court  or  judge  making 
such  order  may  fix  the  sum  for  which  the  undertaking  must  be  executed, 
and  if  necessarj^  in  fixing  such  sum  to  know  the  value  of  the  property  re- 
leased, the  same  may  be  appraised  by  one  or  more  disinterested  persons,  to 
be  appointed  for  that  purpose.  The  sureties  may  be  required  to  justify 
before  the  court  or  judge,  and  the  property  attached  cannot  be  released  from 
the  attachment  without  their  justification,  if  the  same  is  required. 

Undertaking  to  prevent  attachment.  Ante,  levy  of  an  attachment,  or  to  procure  a  re- 
lease thereof  (Bailey  v.  ^tna  Indemnity 
Co.,  5  Cal.  App.  740;  91  Pac.  416);  but 
after  the  return  of  a  writ  of  attachment, 
a  release  of  the  attached  property  must 
be  by  order  of  court.  Kanouse  v.  Brand, 
11  Cal.  App.  669;  106  Pac.  120;  San  Fran- 
cisco Sulphur  Co.  V.  Ji;tna  Indemnity  Co., 
11  Cal.  App.  695;   106  Pac.  111. 

The  undertaking.  The  lien  is  released 
by  the  execution  of  the  undertaking.  Hunt 
V.  Robinson,  11  Cal.  262;  Rosenthal  v. 
Perkins,  123  Cal.  240;  55  Pac.  804.  The 
bond  provided  for  by  this  section  is  the 
bond  to  be  given  by  the  defendant  in  the 
attachment  suit,  and  not  by  the  claimant 
of  the  property.  Hunt  v.  Robinson,  11 
Cal.  263.  It  is  to  be  given  as  a  substitute 
for  the  attachment  lien,  and  to  secure  a 
redelivery  of  the  attached  property,  or 
payment  of  its  value,  to  be  applied  to  the 
payment  of  any  judgment  recoverable  in 
the  case.  Harding  v.  Minear.  54  Cal.  502; 
Metrovich  v.  Jovovich,  58  Cal.  341;  Mul- 
lally  V.  Townsend,  119  Cal.  47;  50  Pac. 
1066;  Risdon  Iron  etc.  Works  v.  Citizens' 
Traction  Co.,  122  Cal.  94;  68  Am.  St.  Rep. 
25;  54  Pac.  529.  The  effect  of  the  under- 
taking is  merely  to  release  the  property 
from  the  custody  of  the  sheriff,  pending 
the  suit:   it   is  not  an  actual  substitution    , 


§  540 

Court  commissioners,  power  of.  to  take  bonds, 
examine  sureties,  etc.      Ante,   §  259,  subd.  3. 

Sureties. 

1.  Qualifications      of.       Ante,    §   494 ;      post, 
§  1057. 

2.  Justification.    Ante,  §  259,  subd.  3,  §  494; 
post,  §  948. 

Legislation  §  555.  1.  Enacted  March  11,  1S73; 
basf'd  on  Practice  Act,  §  137,  as  amended  by 
Stats.  1863-64,  p.  44,  which  had  (1)  in  the  first 
line,  (a)  the  word  "granting"  instead  of  "mak- 
ing," and  (b)  the  word  "shall"  instead  of 
"must";  (2)  the  word  "such"  instead  of  "the," 
after  "redeliver";  (3)  the  words  "granting  such 
release"  instead  of  "making  such  order";  (4)  the 
word  "shall"  instead  of  "must,"  before  "be  exe- 
cuted"; (5)  the  words  "shall  not"  instead  of 
"cannot,"   before   "be  released." 

2.  .Vmended  by  Code  Amdts.  1873-74,  p.  308, 
(1)  in  the  first  line,  omitting  "the"  before 
"making,"  (2)  changing  "county"  to  "state,"  (3) 
changing  "and  that"  to  "or,"  before  "in  default 
thereof,"  (4)  adding  the  word  "that"  after  "de- 
fault thereof,"  and  (5)  changing  the  word  "three" 
to  "one  or  more." 

3.  Amendment  by  Stats.  1901,  p.  141;  un- 
constitutional.     See  note  ante,  §  5. 

4.  .\mended  by  Stats.  1907,  p.  709.  (1) 
changing  the  word  "recover"  to  "recovers,"  be- 
fore "judgment  in  the  action,"  (2)  adding  the 
words  "not  exceeding  the  amount  of  such  .iudg- 
ment,"  after  "property  released,"  (3)  changing 
the  word  "be"  to  "is,"  before  "required,"  at  end 
of  section. 

Necessity  for  order  of  court.  No  order 
of  court  is  essential  to  the  effectiveness  of 
a   bond    voluntarily    given    to   prevent   the 


577 


LIABILITY    OF   SURETIES — MOTION    TO    DISCHARGE    WRIT. 


§  556 


of  security.  Low  v.  Adams,  6  Cal.  277. 
The  fact  that  the  undertaking  given  con- 
tains conditions  more  onerous  than  the 
statutory  undertaking,  does  not  render  it 
void;  and  being  given  for  a  purpose  which 
was  accomplished  when  the  order  of  court 
was  obtained,  it  is  binding  as  a  coinmou- 
law  obligation.  Gardner  v.  Donnelly,  86 
Cal.  367;   24  Pac.   1072. 

Liability  of  sureties.  Where  the  under- 
taking exjiresscs  the  consideration  to  be 
the  release  of  the  property  from  the  at- 
tachment, the  liability  of  the  sureties 
attaches  when  the  court  makes  the  order 
releasing  the  i)roperty,  uotwithstandiug 
the  sheriff  refuses  to  comply  with  such  or- 
der of  release,  and  refuses  to  redeliver  the 
property  to  the  defendant.  Gardner  v. 
Donnelly,  86  Cal.  367;  24  Pac.  1072.  Where 
the  execution  is  returned  -unsatisfied  in 
whole  or  in  part,  the  plaintiff  may  prose- 
cute the  undertaking  given  pursuant  to 
this  section.  Pailey  v.  ^tua  Indemnity 
Co.,  5  Cal.  App.  740;  91  Pac.  416.  A  judg- 
ment against  any  one  of  several  defendants 
is  sufficient  to  authorize  the  recovery  from 
the  sureties,  upon  the  refusal  to  redeliver 
the  property,  where  the  undertaking  is 
conditioned  that  the  "plaintiff  recover 
judgment  in  said  action."  MeCormick  v. 
National  Surety  Co.,  134  Cal.  510;  66  Pac. 
741.  "Where  a  sheriff'  accepts  an  under- 
taking to  prevent  an  attachment,  under 
§  540,  ante,  in  which  the  sureties  agree  to 
pay  whatever  judgment  the  plaintiff'  may 
obtain,  aud  the  debt  is  established  by  judg- 
ment, an  action  on  the  undertaking  is  not 
affected  by  the  debtor's  adjudication  in 
bankruptcy  within  four  mouths  after  the 
attachment  (San  Francisco  Sulphur  Co.  v. 
JEtna.  Indemnity  Co.,  11  Cal.  Ajip.  695;  106 
Pac.  Ill);  but  the  dissolution  of  an  attach- 
ment by  an  insolvency  proceeding  dis- 
charges the  obligation  of  the  sureties  in 
a  redelivery  bond  given  under  this  section. 
Eosenthal  v.  Perkins,  6  Cal.  Unrep.  21; 
53  Pac.  444. 

Redelivery.  Where  the  condition  of  the 
undertaking  is,  that  the  attached  property 
shall  be  returned,  such  condition  is  not 
complied  with  by  an  offer  to  return,  or 
by  a  return  of  a  portion  of  the  i>roperty. 
Metrovich  v.  Jovovieh,  58  Cal.  341. 

Plaintiff's  possession  in  replevin.  The 
possession  obtained  by  the  plaintiff  in  re- 

§  556.  When  a  motion  to  discharge  attachment  may  be  made,  and  upon 
what  grounds.  The  defendant  may  also  at  any  time,  either  before  or  after 
the  release  of  the  attached  property,  or  before  any  attachment  shall  have 
been  actually  levied,  applj^,  on  motion,  npon  reasonable  notice  to  the  plain- 
tiff, to  the  court  in  which  the  action  is  brought,  or  to  a  judge  thereof,  that 
the  writ  of  attachment  be  discharged  on  the  ground  that  the  same  was  im- 
properly or  irregularly  issued. 

Legislation  g  556.     1.    Enacted  March  11,  1872  for    answering    expires,    apply,    on    motion,    upon 

(rei  iiactment  of  Practice  Act,  §  138,  as  amcmled  rs^asonable   notice  to  the  plaintiff,   to  the  court  in 

"by    Stats.    1860,    p.    301),    and    then    read:    "The  which    the    action    is    brought,    or    to    the    judge 

defendant    niay,    also,    any    time    before    the    time  thereof,  or  to  a  county  judge,  that  the  attachment 

1  Pair. — 37 


plevin  is  only  tenii)orary:  it  does  not  divest 
the  title  nor  discharge  the  lieu.  Hunt  v. 
Robinson,    11    Cal.    262. 

Right  of  obligor  in  bond  for  release  of  at- 
tached property  to  attack  attachment.  See  note 
3-'    I.,    l;.   A.    (N.   .S.)    401. 

Amendment  of  claim  or  pleading  as  discharge 
of  sureties  on  bonds  given  to  dissolve  attach- 
ments.    .Set!   noti-   4'J    L.   K.    A.    (  .\.   S.;    -IHA. 

CODE  COMMISSIONEKS' NOTE.      1.  Effect  of 

undertaking.  It  is  nul  a  sub-stiliition  of  security. 
Low  V.  Adams,  6  Oal.  277.  A  bond  given  volun- 
tarily is  valid  at  common  law.  I'iihner  v.  \ance, 
13  Cal.  553.  A  substantial  compliance  with  this 
section,  in  respect  to  the  undertaking,  is  sufficient, 
tleyneniann  v.  Eder,  17  Cal.  433;  Palmer  v.  Vance, 
13  Cal.  553.  If  the  sheriff  lakes  a  sufficient 
statutory  undertaking,  he  has  no  further  respon- 
sibility.   Curiae  v.  Packard.  29  Cal.  194. 

2.  Action  on  the  undertaking.  In  an  action  on 
the  uiuli-rlukiiiK,  the  complaint  should  allege  that 
the  properly  attached  was  released  upon  the  de- 
livery of  the  undertaking.  Williamson  v.  Blat- 
ton,  9  Cal.  500.  Whether  each  obligor  is  liable 
to  the  sheriff  for  the  whole  amount  of  any  judg- 
ment against  him,  leaving  the  question  of  contribu- 
tion to  be  settled  between  them,  was  questioned 
in  White  v.  Fratt,  13  Cal.  521.  Where  defend- 
ant applied  to  the  court  for  a  discharge  of  the 
attachment,  and  an  undertakins  was  executed  by 
D.  and  R.,  reciting  the  fact  of  the  attachment,  and 
that  "in  consideration  of  the  premises,  and  in 
consideration  of  the  release  from  attachment  of 
the  property  attached  as  above  mentioned,"  they 
undertake  to  pay  whatever  judgment  plaintiff  may 
recover,  etc.,  the  court  made  an  order  discharging 
the  writ  and  releasing  the  property.  In  an  ac- 
tion against  the  sureties  on  the  undertaking,  it 
was  held,  that  the  complaint  need  not  aver  that 
the  property  was  actually  released  and  delivered 
to  the  defendant;  that  as  the  consideration  for  the 
undertaking  was  the  release  of  the  property,  and 
as  the  complaint  avers  such  release,  in  conse- 
quence and  in  consideration  of  the  undertaking, 
by  order  of  the  court,  which  is  set  out,  the  actual 
release  and  redelivery  of  the  property  to  defend- 
ant is  immaterial,  the  plaintiff  having  no  claim 
on  it  after  the  undertaking  was  given  and  the 
order  of  release  made.  McMillan  v.  Dana,  18  Cal. 
c39.  An  undertaking,  given  to  a  sheriil'  to  pro- 
cure a  release  of  property  attached,  is  for  the 
benefit  of  the  plaintiff,  who  may  sue  on  it.  Curiae 
V.  Packard,  29  Cal.  194.  If'the  defendant  ob- 
tains an  order  for  the  release  of  property  upon 
an  undertaking  executed  by  sureties,  conditioned 
to  pay  the  plaintiff  any  judgment  he  may  recover 
in  the  action,  and  the  property  is  thereupon  re- 
leased: whenever  the  liability  of  the  sureties  is 
fixed,  by  the  rendition  of  a  judgment  in  favor  of 
the  plaintiff,  the  sureties  have  a  right  to  tender 
the  plaintiff  the  full  amount  of  the  judgment,  and 
if  he  refuses  to  receive  the  same,  the  sureties  are 
discharged  from  their  obligation  on  the  undertak- 
ing. Hayes  v.  Josephi,  26  Cal.  540;  Curiae  v. 
Packard,  29  Cal.  194.  Tender,  by  sureties,  of  the 
full  amount  of  judgment  recovered,  is  equivalent 
to  payment  or  release  by  said  plaintiff.  Norwood 
V.  Kenfield,  34  Cal.  329;  Curiae  T.  Packard,  29 
Cal.  194. 


556 


ATTACHMENT. 


578 


be   discharged   on  the  ground  thnt   the  writ  was 
improperly  or  irregularly  issued." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  309, 
to  read  as  at  present,  except  that  (1)  it  had  the 
vrord  "the"  instead  of  "a"  before  "judge  thereof," 
and  (2)  had  the  words  "or  to  a  county  judge" 
after  these  words. 

3,  Amended  by  Code  Amdts.  1880,  p.  4. 

Who  may  move  for  discharge.  A  de- 
fendant, who,  more  than  four  months  after 
levy  of  attachment,  secures  a  certificate 
of  discharge  in  bankruptcy,  does  not 
thereby  become  entitled  to  file  a  supple- 
mental answer  and  procure  a  discharge  of 
the  attachment:  the  only  effect  of  such 
discharge  is  to  limit  the  judgment  recov- 
erable in  the  attachment  suit,  and  the 
plaintiff  is  entitled  to  judgment  for  the 
enforcement  of  his  attachment  lien,  and  if 
such  attachment  has  been  discharged,  he 
is  entitled  to  recover  upon  the  undertak- 
ing, upon  the  giving  of  a  statutory  bond. 
Harding  v.  Minear,  54  Cal.  502.  Persons 
not  named  as  defendants,  but  claiming  to 
be  such,  may  move  to  discharge  the  writ, 
if,  in  their  affidavits,  they  state  that  they 
are  defendants  in  the  action,  misnamed  in 
the  plaintiff's  complaint  and  affidavit,  and 
the  plaintiff  does  not  deny  such  affidavits. 
Sparks  v.  Bell,  137  Cal.  415;  70  Pac.  281. 
Judgment  creditors  of  the  defendants  may 
intervene  to  set  aside  the  attachment,  be- 
cause void  as  to  them.  Davis  v.  Eppinger, 
18  Cal.  378;  79  Am.  Dec.  184.  Where  a 
subsequent  attaching  creditor  intervenes 
to  set  aside  a  prior  attachment  on  the 
ground  of  fraud,  and  the  court  finds  that 
only  a  portion  of  the  debt  on  which  the 
prior  attachment  issued  was  fraudulent, 
the  lien  of  the  prior  attachment  should  be 
postponed  only  as  to  the  fraudulent  por- 
tion (Coghill  V.  Marks,  29  Cal.  677);  and 
an  order,  on  motion  of  an  intervener,  en- 
tirely setting  aside  the  plaintiff's  attach- 
ment, will  be  modified  on  appeal,  so  as 
merely  to  postpone  the  plaintiff's  lien  to 
that  of  the  intervener.  Speyer  v.  Ihmels, 
21  Cal.  280;  81  Am.  Dec.  157.  An  assignee 
in  insolvency  maj"^  move  for  a  release  of 
the  attached  property,  although  not  a 
party  to  the  record.  Baum  v.  Raphael,  57 
Cal.  361.  A  stranger  cannot  interfere 
ujion  the  ground  of  irregularity  of  the  pro- 
ceedings: if  the  proceedings  of  the  prior 
attaching  creditor  are  not  void,  but  void- 
able, a  subsequent  attaching  creditor  can- 
not object;  only  the  defendant  can  object. 
Dixey  v.  Pollock,  S  Cal.  570. 

Notice  of  motion.  The  notice  of  motion 
should  specify  the  grounds  thereof,  and 
wherein  it  will  be  urged  that  the  writ 
was  improperly  issued.  Freeborn  v.  Glazer, 
10  Cal.  337;  Loucks  v.  Edmondson,  18  Cal. 
203. 

Motion  for  discharge.  The  only  remedy 
for  an  improper  attachment  is  a  motion 
to  set  it  aside,  where  no  jurisdictional  de- 
fect is  apj>arent  on  the  face  of  the  pro- 
ceeding. Martinovich  v.  Marsicano,  150 
Cal,  597;    119   Am.   St.   Rep.   254;   89   Pac. 


333.  The  motion  to  discharge  the  writ 
may  be  made  before  the  attachment  is 
levied.  Sparks  v.  Bell,  137  Cal.  415;  70 
Pac.  281.  The  motion  to  dissolve  cannot 
be  turned  into  a  demurrer  to  the  com- 
plaint: thus,  if  the  complaint  sets  forth 
a  cause  of  action  upon  a  contract,  express 
or  implied,  it  cannot  be  attacked  for  am- 
biguity or  uncertainty,  nor  on  the  ground 
that  it  does  not  state  a  cause  of  action 
upon  the  contract.  Hale  Bros,  v,  Milliken, 
142   Cal.   134;    75   Pac.   653. 

Evidence  on  hearing  of  motion.  The 
complaint  and  the  affidavit  of  attachment 
constitute  the  record,  which  may  be  con- 
sidered without  proof  upon  a  motion  to 
dissolve  the  attachment;  but  when  the 
motion  is  made  upon  matters  appearing 
outside  of  the  complaint  and  affidavit,  the 
moving  party  must  introduce  evidence  in 
proof  of  these  facts:  an  oral  admission  of 
matter  of  evidence,  made  upon  a  previous 
motion,  which  was  denied,  and  made  only 
for  the  purpose  of  that  motion,  cannot 
dispense  with  evidence  of  the  facts  upon 
a  subsequent  motion  to  vacate  the  order 
denying  the  motion  and  to  dissolve  the  at- 
tachment. Goldman  v.  Floter,  142  Cal. 
388;  76  Pac.  58.  The  complaint,  answer, 
and  decree  in  liquidation  proceedings 
against  an  insolvent  bank  may  be  read 
upon  the  motion  to  dissolve  an  attachment 
levied  upon  the  funds  of  the  bank,  not- 
withstanding the  plaintiff  in  the  attach- 
ment proceedings  is  not  a  party  in  the 
liquidation  proceedings.  Crane  v.  Pacific 
Bank,  106  Cal.  64;  27  L.  R.  A.  562;  39  Pac. 
215. 

"Improper"  and  "irregular"  writ,  defined. 
An  attachment  is  proj>erly  issued  when 
issued  iu  a  case  provi(ied  for  by  §  537, 
ante,  and  it  is  regularly  issued  when  the 
requirements  of  §§  538,  539,  ante,  are  com- 
plied with;  irregularities  warranting  a  dis- 
charge of  the  writ  usually  appear  upon 
the  face  of  the  affidavit  or  undertaking, 
or,  where  properly  but  prematurely  issued, 
by  a  comparison  with  the  summons  and 
complaint.  Where  the  attachment  is  im- 
properly issued,  that  is  to  say,  in  a  case 
not  provided  for  by  statute,  the  evidence 
must  usually  be  sought  dehors  the  papers 
upon  which  it  is  evidently  founded. 
Kohler  v.  Agassiz,  99  Cal.  9;  33  Pac.  741; 
Sparks  v.  Bell,  137  Cal.  415;  70  Pac.  281. 

Waiver  of  irregularities.  Any  irregu- 
larities in  obtaining  the  attachment  are 
waived  by  the  defendant,  where  he  ap- 
jiears  and  answers  without  taking  advan- 
tage of  them,  by  motion  or  otherwise,  in 
the  course  of  the  proceedings:  the  process 
is  merely  auxiliary,  and  the  judgment 
cures  all  irregularities.  Porter  v.  Pico,  55 
Cal.  165;  Harvey  v.  Foster,  64  Cal.  296; 
30  Pac.  849;  Scrivener  v.  Dictz,  68  Cal. 
1;  8  Pac.  609;  Schwartz  v.  Cowell,  71  Cal. 
306;  12  Pac.  252.  The  omission  of  the 
word  "company,"  in  the  defendant's  cor- 
porate name,  in  the   original  undertaking 


579 


AMENDMENTS — WRIT  SHOULD  BE  DISCHARGED  WHEN. 


§556 


and  affidavit,  does  not  afTeet  the  attach- 
ment lien,  and  is  waived  by  the  appear- 
ance and  answer  of  the  corporation  in  its 
true  name,  witliout  ol)icction.  Ilaniinond  v. 
Starr,  79  Cal.  556;  21  Pac.  971.  Where 
property  is  attached,  the  right  to  apply 
for  a  discharge  of  the  writ,  under  this 
section,  is  not  waived  because  a  release 
of  the  property  was  previously  obtained 
by  giving'  the  uu<lertaking  required  by 
§§  554,  555,  ante.  Winters  v.  Pearson,  72 
Cal.   553;    14  Pac.   304. 

Amendment  of  proceedings.  Prior  to 
the  amendment  of  §  558,  post,  in  1909, 
amendments  of  defects  in  the  affidavit  or 
liroceedings  were  not  allowed.  Winters  v. 
Pearson,  72  Cal.  553;  14  Pac.  304.  Where 
the  complaint  is  defective  merely,  and  can 
be  made  good  by  amendment,  the  plaintiff 
should  be  allowed  to  amend  before  the  de- 
cision of  the  motion  to  dissolve;  but  if 
incurable,  the  attachment  must  be  dis- 
solved. Hathaway  v.  Davis,  33  Cal.  161; 
Hammond  v.  Starr,  79  Cal.  556;  21  Pac. 
971.  The  complaint  may  be  amended, 
pending  a  motion  to  discharge  the  attach- 
ment, so  as  to  state  an  unambiguous  cause 
of  action  upon  the  contract,  where  the 
motion  is  made  upon  the  ground  that  the 
complaint  does  not  show  that  the  plain- 
tiff's action  is  upon  the  contract.  Hale 
Bros.  V.  Milliken,  142  Cal.  134;  75  Pac. 
653.  A  defective  complaint  may  be 
amended  without  affecting  the  attachment 
lien;  ami  an  objection  that  the  amendment 
states  a  different  cause  of  action  from  that 
declared  on  in  the  original  complaint 
cannot  be  urged  for  the  first  time  in  a  col- 
lateral suit  on  a  bond  given  for  the  re- 
lease of  the  attachment.  Hammond  v. 
Starr,  79  Cal.  556;  21  Pac.  971.  If,  in  the 
original  complaint,  it  appears  that  the  de- 
fendant had  pledged  a  certificate  of  stock 
to  secure  the  plaintiff,  and  the  affidavit 
states  that  no  security  was  given,  an 
amendment  of  the  complaint,  so  as  to  state 
that  the  security  had  become  valueless  by 
reason  of  its  sale  and  the  application  of 
the  proceeds  thereof  on  account  of  the 
debt,  does  not  remedy  nor  cure  the  defects 
of  an  affidavit  which  does  not  state  these 
facts,  and  the  attachment  must  be  dis- 
charged. Fisk  V.  French,  114  Cal.  400;  46 
Pac.  161. 

■When  writ  should,  be  discharged.  The 
defendant  can  have  the  attachment  set 
aside,  where  it  is  improperly  issued. 
Laughlin  v.  Thompson,  76  Cal.  287;  18  Pac. 
330.  The  writ  must  be  discharged,  if, 
upon  motion  made  before  or  after  the  levy, 
it  appears  that  it  was  improperly  or  irregu- 
larly issued.  Jensen  v.  Dorr,  157  Cal.  437; 
108  Pac.  320;  Pajaro  Valley  Bank  v. 
Scurich,  7  Cal.  App.  732;  95  Pac.  911; 
Fairbanks  v.  Getchell,  13  Cal.  App.  458; 
110  Pac.  331.  A  writ  improperly  or  irregu- 
larly issued  as  to  one  or  more  of  several 
defendants,  must  be  discharged  as  to  such 


defendant  or  defendants,   where  such   fact 
appears    ujion    his    or    their    motion     made 
therefor.    Sparks  v.  Bell,  137  Cal.  415;   70 
Pac.   281.     The  attachment  shouM   be   dis- 
charged, where  the  writ  was  issued  in  an 
action   for   damages   resulting   from   negli- 
gence;   and    where    the    court    refuses,    on 
motion,    to    do    so,    it    may    be    discharged 
on     appeal,    even     if     final     judgment     is 
affirmed    (Criswold  v.   Sharpe,  2   Cal.   17); 
and    the    attachment    should    also    be    dis- 
charged,   where    a    jiartnership    exists    be- 
tween the  parties  plaintiff  and  defendant 
as     to     the     subject-matter     of     the     suit 
(Wheeler  v.  Farmer,  38  Cal.  203);  and  also 
where  the  affidavit  contains  a  false  state- 
ment (Fish  v.  French,  114  Cal.  400;  46  Pac. 
161),   and  where  there  is  a  defect  in  the 
affidavit  (Winters  v.  Pearson,  72  Cal.  553; 
14  Pac.  304),  and  where  the  affidavit  is  in 
the   alternative,   and   insufficient    (Hawley 
V.  Delnias,  4  Cal.   195;   Wilke  v.  Cohn,  54 
Cal.  212;  Harvey  v.  Foster,  64  Cal.  296;  30 
Pac.  849;   Winter  v.  Pearson,  72  Cal.  553; 
14  Pac.  304);  and  also  for  failure  of  the 
affidavit   to   state   tlie   amount   of   the   in- 
debtedness (Harvey  v.  Foster,  64  Cal.  296; 
30  Pac.  849),  or  to  state  that  the  payment 
of  the  contract  sued   on   was  not  secured 
by  any  mortgage  or  lien  upon  real  or  per- 
sonal property,  or,  if  so  secured,  that  the 
security   has   become   valueless    (Scrivener 
v.  Dietz,  68  Cal.  1;  8  Pac.  609);  and  also 
where  the  writ  was   issued   on   a  contract 
not     payable    in     this     state    (Beltaire    v. 
Kosenberg,  129  Cal.  164;  61  Pac.  916);  and 
also  where  a  vendor's  lien  existed  at  the 
time  of  the  issue  of  the  writ   (Gessner  v. 
Palmateer,   89   Cal.   89;    13   L.    R.   A.   187; 
24  Pac.  60S),  and  where  the  property  was 
exempt   from   execution    (Holmes   v.   Mar- 
shall, 145   Cal.   777;   104  Am.  St.  Rep.   86; 
2  Anu.   Cas.   88;   69  L.   R.  A.  67;   79  Pac. 
534) ;  and  also  where  the  writ  was  issued 
for  an  amount  greater  than  that  stated  in 
the  affidavit.    Baldwin  v.  Napa  etc.  Wine 
Co.,  137  Cal.  646;  70  Pac.  732;  Kennedy  v. 
California  Sav.  Bank,  97  Cal.  93;  33  Am. 
St.  Rep.  163;  31  Pac.  846.     On  a  motion  to 
dissolve    an    attachment   issued    upon    the 
plaintiff's  affidavit,  stating  the  general  con- 
clusion that  the  mortgage  given  to  secure 
the  indebtedness  has  become  valueless,  if 
the  defendant's  affidavit  specifically  states 
facts  which  show  that  the  mortgage  still 
remains  in  full  force  and  effect,  and  that 
there  has  been  no  depreciation  in  value  of 
the   security   of   the   mortgage,   or   of   the 
mortgaged  premises,  up  to  the  time  of  the 
issuance    of    the    attachment,    which    facts 
are  not  controverted  by  the  plaintiff,  there 
is  no  conflict  of  evidence  on   the  motion, 
and   the   order  of  the  trial  court  denying 
the    motion    will    be   reversed    on     appeal. 
Barbieri   v.  Ramelli,  84  Cal.   174;   24  Pac. 
113.     Where   the   affidavit   to   procure   the 
attachment    states    that    the    sum    claimed 
"has  not  been  scoured  by  any  mortgage  or 


§556 

lien  upon  real  or  personal  property,"  and 
defendant's  affidavit  on  motion  to  dis- 
charge the  attachment  states  that  the 
plaintiff  "purchased  the  note  sued  upon  in 
this  action  with  full  knowledge  that  the 
same  was  given  as  collateral  to  and  iden- 
tical with  the  debt  secured  by  the  said 
contract  and  lien  in  said  real  estate,"  and 
no  counter-affidavit  is  filed  by  the  plain- 
tiff, the  attachment  should  be  discharged. 
Gessner  v.  Palmateer,  89  Cal.  89;  13 
L.  E.  A.  187;  21  Pac.  608;  26  Pac.  789. 
Where  the  motion  for  the  discharge  of  the 
attachment  is  made  on  the  ground  that  the 
plaintiff  has  a  vendor's  lien  as  security  for 
the  debt,  and  the  vendee,  prior  to  the  at- 
tachment, conveyed  to  a  third  party,  the 
attachment  should  not  be  dissolved:  the 
question  whether  the  person  purchasing 
from  the  vendee  took  in  good  faith,  with- 
out notice,  for  a  valuable  consideration, 
cannot  be  determined  on  ex  parte  affidavits 
in  an  attachment  suit,  but  must  be  tried 
in  a  direct  proceeding  against  such  pur- 
chaser, and,  until  it  is  determined,  it  can- 
not be  known  with  certainty  whether  or 
not  the  plaintiff  has  an  available  lien. 
Porter  v.  Brooks,  '65  Cal.  199.  Variance 
in  the  name  of  the  defendant  is  not  fatal 
to  the  writ,  as  "Welch"  for  "Welsh,"  where 
the  identity  of  the  jjerson  is  established 
by  the  finding  of  the  court.  Donohoe-Kelly 
Banking  Co.  v.  Southern  Pacific  Co.,  138 
Cal.  183;   91  Am.  St.  Rep.  28;   71  Pac.  93. 

Erroneous  levy.  The  release  from  at- 
tachment of  property  exempt  from  execu- 
tion is  not  a  dissolution  of  the  writ,  but 
an  order  setting  aside  the  erroneous  levy, 
which  the  court  has  power  to  do,  having 
)/ower  over  its  own  process  (Holmes  v. 
Marshall,  145  Cal.  777;  104  Am.  St.  Eep. 
86;  2  Ann.  Cas.  88;  69  L.  R.  A.  67;  79  Pac. 
534);  and  such  an  order  as  effectually  dis- 
solves the  attachment  as  if  the  writ  were 
quashed.  Risdon  Iron  etc.  Works  v.  Citi- 
zens' Traction  Co.,  122  Cal.  94;  G8  Am.  St. 
Rep.  25;   54  Pac.  529. 

Order  dissolving  attachment.  The  order 
dissolving  the  attachment  should  specify 
the  grounds  of  discharge,  where  the  motion 
is  made  on  two  grounds,  one  of  which 
goes  to  the  right  of  the  plaintiff  to  any 
attachment  in  the  action,  and  the  other 
only  to  an  irregularity  in  the  writ,  avoid- 
able by  the  issuance  of  another:  if  the 
order  is  made  on  the  latter  ground,  the 
plaintiff  is  free  to  take  proper  steps  to 
procure  the  issuance  and  service  of  a 
proper  writ.  Kennedy  v.  California  Sav. 
Bank,  97  Cal.  93;  33  Am.  St.  Rep.  163;  31 
Pac.  846. 

Eelease  by  sheriff.  Where  the  order  of 
the  court  releases  the  property  from  at- 
tachment, the  wrongful  refusal  of  the 
sheriff  to  obey  the  order  and  to  redeliver 
the  proj/erty  does  not  render  the  discharge 
inoperative.  McMillan  v.  Dana,  18  Cal. 
339;  Gardner  v.  Donnelly,  86  Cal.  367;  24 


ATTACHMENT. 


580 


Pac.  1072.  An  attachment  debtor,  upon 
effecting  a  settlement  with  his  creditor, 
cannot  require  the  sheriff  to  release  the 
property  attached,  except  upon  payment  of 
his  fees.  Robinett  v.  Connolly,  76  Cal.  56; 
18  Pac.  130;  Perrin  v.  McMann,  97  Cal. 
52;  31  Pac.  837. 

Appeal  from  order.  An  appeal  lies  from 
an  order  dissolving  or  refusing  to  dissolve 
the  attachment  (Mudge  v.  Steinhart,  78 
Cal.  34;  12  Am.  St.  Rep.  17;  20  Pac.  147); 
and  also  from  an  order  releasing  property 
not  liable  to  seizure:  the  right  of  appeal 
is  not  limited  to  orders  made  on  the  ground 
that  the  writ  was  improperly  or  irregu- 
larly issued  (Risdon  Iron  etc.  Works  v. 
Citizens'  Traction  Co.,  122  Cal.  94;  68  Am. 
St.  Rep.  25;  54  Pac.  529);  but  an  order 
refusing  to  dissolve  the  attachment,  made 
on  conflicting  evidence,  will  not  be  re- 
viewed on  appeal  (Barrell  v.  Lake  View 
Land  Co.,  122  Cal.  129;  54  Pac.  594);  nor 
will  the  decision  of  the  court,  on  conflict- 
ing evidence,  on  motion  to  dissolve,  be 
interfered  with  on  appeal,  where  there  is 
sufficient  evidence  to  sustain  the  order 
(Rodley  v.  Lyons,  129  Cal.  681;  62  Pac. 
313);  nor  will  an  order  discharging  the 
attachment  be  reversed  on  appeal,  where 
the  affidavits  used  on  the  motion  are  in 
conflict  (Egener  v.  Juch,  101  Cal.  105;  35 
Pac.  432);  but  where  the  court  erroneously 
refused  to  dissolve  an  attachment  improp- 
erly issued,  such  attachment  will  be  or- 
dered dissolved  on  appeal,  even  though 
the  judgment  is  regular.  Griswold  v. 
Sharpe,  2  Cal.  17;  Taaffe  v.  Rosenthal,  7 
Cal.  514.  The  validity  of  the  judgment  or 
an  order  denying  a  new  trial  is  hot  affected 
in  any  way  by  errors  in  the  attachment- 
pai^ers;  nor  can  questions  relating  to  them 
be  considered  on  an  aj^peal  from  such  judg- 
ment or  order.  Herman  v.  Paris,  81  Cal. 
625;  22  Pac.  971.  An  appeal  from  an 
order  dissolving  an  attachment  may  be 
taken  within  sixty  days  from  the  date  of 
the  order;  and  it  cannot  be  objected  to  the 
appeal,  that  the  lien  of  the  attachment  was 
not  preserved  because  the  appeal  was  not 
perfected  within  five  days,  and  the  under- 
taking on  appeal  was  not  for  double  the 
amount  claimed.  Flagg  v.  Puterbaugh,  101 
Cal.  583;  36  Pac.  95.  Under  the  Practice 
Act,  an  order  refusing  to  dissolve  an  at- 
tachment was  not  appealable,  nor  could  it 
be  reviewed  on  an  appeal  from  the  judg- 
ment as  an  intermediate  order.  Allender 
V.  Fritts,  24  Cal.  447;  Myers  v.  Mott,  29 
Cal.  359;   89  Am.  Dec.  49. 

Irregularities  and  defects  which  will  avoid  at- 
tachments.   See  note  79  Am.  Dec.  164. 

Dissolution  of  attachment.  See  note  123  Am. 
St.  Kep.   1030. 

Bight  to  recover  counsel  fees  as  damages  upon 
dissolution  of  attachment.  See  note  10  Ann.  (Jas. 
954. 

CODE  COMMISSIONEBS'  NOTE.  The  notice 
should  specify  in  what  particulars  the  writ  was 
improperly  issued.  Freeborn  v.  Glazer,  10  Cal. 
337.     If  the  complaint  does  not  slate  facts  suffi- 


581 


MOTION    ON    AFFIDAVIT — WRIT,    DISCHARGE    AND    RETURN.       §§  557-559 


cient  to  constitute  a  cause  of  action,  and  does  not  the    motion    to    dissolve.     Hathaway    v.    Davis,    33 

admit    of    ainc'iidnient,    the    attachment    shiuild    be  Cal.  161;  see  also  subds.  1  and  2  of  note  to  §  537 

dissolved;   hut   if  the  complaint  ran  be  made  ROod,  of  this  code. 
the  plaintiiT  should  be  allowed  to  amend,  pending 

§  557.  When  motion  made  on  aflEidavit,  it  may  be  opposed  by  affidavit. 
If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defendant,  but  not 
otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or  other  evidence, 
in  addition  to  those  on  Avliidi  the  attachment  was  made. 

in  attachment  may  be  contradiftcd  by  the 
plaintiff's  affidavit,  but,  if  this  is  not  done, 
the  defendant's  affidavit  must  be  taken 
as  establishing  the  truth  of  what  it  con- 
tains. Barbieri  v.  Kamelli,  84  Cal.  174;  24 
Pac.   113. 


On  affidavits.  Compare  "Motion  to  Vacate  or 
Modify   Injunction."     Ante,  §  532. 

Legislation  8  557.  Enacted  March  11,  1873: 
re-enact ment  of  Practice  Act,  §  139,  as  amended 
by  Stats.  186(i,  p.  301. 

Affidavits  may  be  controverted.  Specific 
statements   of   fact   made  by   a   defendant 


§  558.  When  writ  must  be  discharged.  If  upon  such  application,  it  satis- 
factorily appears  that  the  writ  of  attachment  was  improperly  or  irregularly 
issued  it  must  be  discharged;  provided  that  such  attachment  shall  not  be 
discharged  if  at  or  before  the  hearing  of  such  application,  the  writ  of  at- 
tachment, or  the  affidavit,  or  undertaking  upon  which  such  attachment  was 
based  shall  be  amended  and  made  to  conform  to  the  provisions  of  this  chap- 
ter. 

taehment,  is  amendable,  if  not  sufficient 
to  .sustain  the  writ.  Winters  v.  Pearson, 
72  Cal.  553;  14  Pac.  304;  Tibbet  v.  Tom 
Sue,  122  Cal.  206;  54  Pac.  741.  Under  this 
section,  a  motion  to  discharge  for  irregu- 
larity may  now  be  met  by  proper  amend- 
ment of  the  affidavit,  undertaking,  or  writ 
(.Tensen  v.  Dorr,  157  Cal.  437;  lOS  Pac. 
320;  Fairbanks  v.  Getchell,  13  Cal.  App. 
458;  110  Pac.  331);  but  a  fatally  defective 
affidavit  is  not  amendable.  Pajaro  Valley 
Bank  v.  Scurich,  7  Cal.  App.  732;  95  Pac. 
911;  Fairbanks  v.  Getchell,  13  Cal.  App. 
458;  110  Pac.  331. 


Legislation  g  558.  1.  Enacted  March  11,  1872; 
b;ised  on  Practice  Act,  §  140,  as  amended  by 
St.its.  1860,  p.  302;  which  had  (1)  the  word 
"shall"  before  "satisfactorily,"  (2)  the  word  "ap- 
pear" instead  of  "appears,"  and  (3)  the  word 
"shall"   instead  of  "must." 

2.  Amendment  by  Stats.  1901,  p.  141;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  1909,  p.  253,  adding 
the  proviso. 

When  writ  must  be  discharged.  Where 
the  writ  was  improperly,  irregularly,  or 
wrongfully  issued,  it  must  be  discharged 
(Winters  v.  Pearson,  72  Cal.  553;  14  Pac. 
304;  Sparks  v.  Bell,  137  Cal.  415;  70  Pac. 
281);  on  motion  (Martinovich  v.  Marsi- 
cano,  150  Cal.  597;  119  Am.  St.  Eep.  254; 
89  Pac.  333),  without  reference  to  any 
levy  made  thereunder.  Jensen  v.  Dorr,  157 
Cal.  437;  108  Pac.  320. 

Amendment  of  aiFidavit  and  undertak- 
ing. Prior  to  the  amendment  of  1909, 
neither  the  affidavit  on  which  the  attach- 
ment  issued,   nor    the   undertaking   on   at- 

§  559.  "When  writ  to  be  returned.  The  sheriff  must  return  the  writ  of  at- 
tachment with  the  summons,  if  issued  at  the  same  time;  otlierwise,  within 
twenty  days  after  its  receipt,  with  a  certilicate  of  his  proceedings  indorsed 
thereon  or  attached  thereto;  and  whenever  an  order  has  been  made  dischar- 
ging or  releasing  an  attachment  upon  real  property,  a  certified  copy  of  such 
order  maj^  be  tiled  in  the  offices  of  the  county  recorders  in  Avhieh  the  notices 
of  attachment  have  been  filed,  and  be  indexed  in  like  manner. 


Amendment  of  -writs  of  attachment  and  of 
papers  on  which  they  are  based.  See  note  61  Am. 
De.-.  125. 

Waiver  of  attachment  as  against  third  person 
by  enlarging  original  claim.  See  note  18  Ann. 
Cas.   1022. 

CODE  COMMISSIONERS'  NOTE.  Speyer  v. 
Ihmels,  21  Cal.  280;  81  Am.  Dec.  157. 


1, 


Notices  of  attachment  filed.    Ante,  §  542,  subds. 

Return  of  inventory  with  writ.    See  ante,  §  546. 

Legislation  §  559.  1.  Enacted  March  11.  1872; 
based  on  Practice  Act,  §  141,  the  first  sentence 
of  which,  ending  "attached  thereto,  '  constituted 
the  section  when  enacted  in  1872,  except  that 
the  word  "shall"  was  changed  to  "must,"  the 
rest  of  the  section  reading,  "The  provisions  of 
this  chapter  shall  not  apply  to  any  suits  already 
commenced,  but  so  far  as  such  suits  may  be  con- 


cerned, the  act  entitled  An  Act  to  Regulate  Pro- 
ceedings against  Debtors  by  Attachment,  passed 
April  22,  1850,  shall  be  deemed  in  full  force 
and  elTect." 

2.  Amended  by  Code  Amdts.  1875-76.  p.  91, 
adding  the  last  half  of  the  section,  beginning 
"and  whenever." 

Objections  to  the  return.  The  garnishee 
has  nothing  to  do  with  the  return  of  the 
writ,  unless  false  in  some  particular  which 


§559 


ATTACHMENT. 


582 


■would  subject  him  to  an  unwarranted  lia- 
bilityj  nor  is  he  required  to  make  any  ob- 
jections to  the  return,  until  its  correctness 
becomes  material  in  the  action  against  him 
upon  his  liability  as  garnishee.  Clyne  v. 
Easton,  148  Cal.  287;  113  Am.  St.  Rep.  253; 
83  Pac.  36.  A  mortgagee  cannot  complain 
of  a  discrepancy  in  the  statement  of  the 
date  appearing  in  the  indorsement  on  the 
copy  of  the  attachment  filed  in  the  clerk's 
office,  where  the  latter,  which  was  erro- 
neous, was  not  filed  until  after  the  mort- 
gage was  executed,  and  did  not  mislead 
the  mortgagee.  Ritter  v.  Scanuell,  11  Cal. 
239;  70  Am.  Dec.  775. 

Conclusiveness  of  return.  The  statute 
does  not  make  the  return  conclusive,  or  the 
only  evidence  of  the  manner  of  executing 
process  (Ritter  v.  Scannell,  11  Cal.  239;  70 
Am.  Dec.  775);  nor  is  the  return  conclu- 
sive as  to  the  regularity  of  the  attachment 
of  property  in  the  hands  of  a  third  party, 
in  an  action  between  the  attaching  credi- 
tor and  such  third  party.  Blanc  v.  Pay- 
master Mining  Co.,  95  Cal.  524;  29  Am.  St. 
Rep.  149;  30  Pac.  765.  A  certificate  of 
the  sheriff,  that  the  property  stood  in  the 
name  of  a  trustee  at  the  time  of  the  levy, 
is  not  conclusive,  in  an  action  between  one 
claiming  under  execution  sale  in  an  at- 
tachment suit  and  one  claiming  under  a 
trust  deed,  where  the  latter  is  shown  to 
be  void.  Johnson  v.  Miner,  144  Cal.  785; 
78  Pac.  240.  The  sheriff  is  concluded  by 
his  return,  when  it  is  set  up  by  any  party 
who  maj''  claim  something  under  it.  Har- 
vey V.  Foster,  64  Cal.  296;  30  Pac.  849; 
and  see  Meherin  v.  Saunders,  110  Cal.  463; 
42  Pac.  966.  Failure  of  the  officer  to  do 
the  things  required  by  law,  and  in  the  or- 
der prescribed,  is  fatal.  Watt  v.  Wright, 
66  Cal.  202;  5  Pac.  9^ 

Evidence  to  aid  return.  The  written  re- 
turn of  the  officer  is  not  the  only  evidence 
that  the  writ  was  properly  served:  if  the 
return  simply  omits  to  state  any  fact 
necessary  to  a  valid  service,  such  fact  may 
be  supplied  by  parol  evidence,  so  long  as  the 
facts  stated  in  the  return  are  not  so  varied 
or  contradicted  as  to  affect  vested  rights 
(Brusie  v.  Gates,  80  Cal.  462;  22  Pac.  284; 
Ritter  v.  Scannell,  11  Cal.  238;  70  Am. 
Dec.  775;  Sinsheimer  v.  Whitely,  111  Cal. 
378;  52  Am.  St.  Rep.  192;  43  Pac.  1109); 
but  parol  evidence  to  supplement  the  re- 
turn must  be  clear  and  satisfactory,  and 
not  rest  upon  presumption.  Brusie  v. 
Gates,  80  Cal.  462;  22  Pac.  284.  Where 
the  return  merely  states  that  the  officer 
duly  levied  upon  the  property,  upon  a 
specified  day,  by  posting  a  copy  of  the 
writ,  attached  to  a  notice  to  the  defend- 
ant that  the  property  was  attached,  on  the 
premises,  and  at  the  trial  the  officer  testi- 
fied that  he  posted  the  papers  on  a  small 
building,  the  only  improvement  on  the 
premises,  such  Vjuilding  must  necessarily 
be  held  to  be  the  most  conspicuous  place 


on  the  land.  Davis  v.  Baker,  72  Cal.  494; 
14  Pac.  102.  Entries  in  books  in  the  sher- 
iff's office,  showing  brief  memoranda  of  the 
receipt  of  writs  of  attachments,  dates  of 
return,  and  proceedings  therein,  made  in 
the  usual  course  of  business,  are  admissible 
in  evidence  as  books  of  original  entries, 
being  often  the  only  available  evidence 
of  the  transaction  to  which  they  refer. 
Hesser  v.  Rowley,  139  Cal.  410;  73  Pac. 
156.  Where  the  officer  testified  that  it 
was  his  custom  to  levy  the  writ  by  first 
posting  the  attachment,  with  the  notice 
of  the  levy,  upon  the  land,  and  afterwards 
filing  the  same  in  the  recorder's  office,  this 
being  the  reverse  of  the  order  prescribed 
by  statute,  there  is  a  conflict  of  evidence, 
and  the  finding  of  the  court  that  the  at- 
tachment was  duly  levied  is  conclusive. 
Porter  v.  Pico,  55  Cal.  165.  Where  the 
officer  expressly  states,  on  cross-examina- 
tion, that  he  is  not  willing  to  swear  that 
he  served  the  notice  with  a  copy  of  the 
attachment,  or  that  other  papers  served 
were  true  copies,  and  it  is  evident  that  he 
testified  to  the  doing  of  acts  necessary  to 
be  done  by  him,  not  from  recollection, 
but  because  the  law  made  it  his  duty  to 
do  them,  he  therefore  presumed  that  he 
had  done  them,  the  showing  is  insufficient 
to  establish  proper  service.  Brusie  v. 
Gates,  80  Cal.  462;  22  Pac.  284. 

Statement  of  facts  in  the  return.  This 
section  contains  no  express  provisions  re- 
quiring that  all  acts  necessary  to  a  valid 
levy  shall  be  set  out  in  the  return;  the 
general  rule  with  regard  to  mesne  process 
is,  that  all  presumptions  are  in  favor  of 
the  regularity  of  the  acts  of  the  officer,  and 
that  a  return  which  simply  states  that 
process  was  executed  is  sufficient,  prima 
facie,  to  show  due  and  proper  execution; 
this  is  a  disputable  presumption,  which 
may  be  controverted,  but  it  is  good  as 
against  a  collateral  attack.  Ritter  v.  Scan- 
nell, 11  Cal.  239;  70  Am.  Dec.  775;  Porter 
v.  Pico,  55  Cal.  165;  Anderson  v.  Goff,  72 
Cal.  65;  1  Am.  St.  'Rep.  34;  13  Pac.  73. 
The  sheriff  must  state  fully,  in  his  return, 
what  acts  he  performed  in  serving  the 
writ,  so  that  the  court  can  decide  upon  its 
sufficiency,  and  it  will  be  presumed  that 
he  states  all  that  he  did  towards  making 
service.  Sharp  v.  Baird,  43  Cal.  577. 
Where  the  officer  states  in  his  return  that 
he  did  certain  acts  as  constituting  his 
levy,  but  such  acts  are  not  sufficient,  sub- 
sequent purchasers  may  rely  upon  such  re- 
turn as  one  stating,  in  effect,  that  the  acts 
named  therein  were  all  the  acts  done  by 
him;  but  where  the  officer  states  generally 
that  he  served  the  writ  by  attaching  the 
property,  and,  in  addition,  that  he  did  cer- 
tain acts,  specifically  named,  subsequent 
purchasers  cannot  maintain  that  he  did 
nothing  but  what  is  specifically  set  out, 
and  reject  the  general  statement.  Brusie 
v.  Gates,  80  Cal.  462;  22  Pac.  2S4.     A  re- 


583 


RETURN — RELEASE    OP    REAL    PROPERTY — RECEIVERS.         §§  560,  564 


turn  which  does  not  show  that  the  oflScer 
posted  "in  a  conspicuous  place  on  the 
land,"  or  at  all,  a  copy  of  the  description 
of  the  land,  in  connection  with  a  copy  of 
the  writ  of  attachment,  and  of  the  notice 
that  the  land  had  been  attached,  is  fatally 
defective.  Watt  v.  Wright,  66  Cal.  202;  5 
Pac.  91.  The  return  need  not  state  that 
the  papers  were  posted  in  a  conspicuous 
place,  if  the  place  stated  is  necessarily  a 
conspicuous  place.  Davis  v.  Baker,  72  Cal. 
494;  14  Pac.  102.  A  return  showing  that 
service  was  made  by  posting  a  copy  of 
the  attachment  on  the  premises,  should 
also  state  whether  or  not  there  was  any 
occupant  on  the  premises:  it  is  not  suffi- 
cient to  state  that  the  "notice"  was  posted 
upon  the  premises;  the  sheriff  cannot  sub- 
stitute a  notice  for  a  copy  of  the  writ 
required  to  be  posted.  Sharp  v.  Baird,  43 
Cal.  577.  The  return  of  an  attachment  on 
a  growing  crop,  stating  that  the  officer 
"attached  the  same  by  taking  it  into  my 
custody,  and  not  putting  a  keeper  in 
charge,"  is  insufficient,  in  not  showing  the 
delivery  of  a  copy  of  the  writ  and  notice 
of  attachment  to  the  defendant  in  posses- 
sion. Rudolph  V.  Saunders,  111  Cal.  233; 
43  Pac.  619. 

Return  as  notice.  The  return  of  the 
officer  and  the  recording  of  the  notice  of 
attachment  of  real  estate  in  the  recorder's 


office  is  sufficient  to  put  a  subsequent  pur- 
chaser on  inquiry,  and  if  the  return  can 
be  aided  by  parol  evidence,  he  is  bound 
to  take  notice  of  the  fact,  and  he  takes  the 
land  at  his  peril,  and  subject  to  the  right 
of  a  purchaser  on  execution  sale  in  an 
attachment  suit  to  make  good  his  title  by 
such  evidence.  Brusie  v.  Gates,  80  Cal.  462; 
22  Pac.  284. 

Description  of  property  in  the  return. 
The  return  of  the  shcrilT,  file<l  in  the  re- 
corder's office,  which,  through  error,  does 
not  describe  the  property  attached,  can- 
not be  amended  so  as  to  postpone  the  rights 
of  creditors  attaching  it  prior  to  the  filing, 
but  before  the  amendment.  "Webster  v. 
Haworth,  8  Cal.  21;  68  Am.  Dec.  287. 
Variance  between  the  description  of  the 
property  attached  and  that  contained  in 
the  sheriff's  deed  under  the  execution,  is 
immaterial,  where  nobody  was  misled,  and 
the  description  in  the  return  was  sufficient 
to  notify  a  purchaser  of  the  property,  and 
to  enable  the  sheriff  to  identify  the  same. 
Godfrey  v.  Monroe,  101  Cal.  224;  35  Pac. 
761. 

CODE  COMMISSIONERS'  NOTE.  See  subd.  3 
of  note  to  §  542  of  this  code.  The  sheriff's  re- 
turn, how  far  conclusive.  Egery  v.  Buchanan,  5 
Cal.  53.  How  far  it  mav  be  amended.  Webster 
V.  Haworth,  8  Cal.  21;  68  Am.  Dec.  287;  New- 
hall  V.  Provost.  G  Cal.  85;  Ritter  v.  Scannell,  11 
Cal.  238  ;  70  Am.  Dec.  775. 


§  560.  Release  of  real  property  from  attachment.  An  attachment  as  to 
any  real  property  may  be  released  by  a  writing  signed  by  the  plaintiff,  or 
his  attorney,  or  the  officer  who  levied  the  writ,  and  acknowledo:ed  and 
recorded  in  the  like  manner  as  a  grant  of  real  property;  and  upon  the  filing 
of  such  release,  it  is  the  duty  of  the  recorder  to  note  the  same  on  the  record 
of  the  copy  of  the  writ  on  file  in  his  office.  Such  attachment  may  also  be 
released  by  an  entry  in  the  margin  of  the  record  thereof,  in  the  county 
recorder's  office,  in  the  manner  provided  for  the  discharge  of  mortgages 
under  section  twenty-nine  hundred  and  thirty-eight  of  the  Civil  Code. 


Legislation  §  560.  1.  Addition  by  Stats.  1901, 
p.   141 ;   unconstitutional.      See   note   ante,  §  5. 

2.  Addc-d  by  Stats.  1907,  p.  709;  amendment 
of  unconstitutional  §  560,  supra,  which  did  not 
have  the  words  "or  the  officer  who  levied  the 
writ" ;  the  code  commissioner  saying  of  the  en- 
actment in  1907,  "New  section.    The  statute  did 


not  heretofore  provide  any  method  of  releasing, 
without  application  to  the  court,  an  attachment 
upon  real  property.  As  it  is  desired  to  make 
such  releases  expeditiously  in  many  instances, 
although  the  action  is  not  dismissed  or  termi- 
nated, this  amendment  provides  such  mode  of  re- 
lease." 


CHAPTER  V. 

EECEIVERS. 


§564.    Appointment  of  receiver. 

§  565.     Appointment  of  receivers  npon  dissolution 

of  corporations. 
§  566.    Receiver,  restrictions  on  appointment.    Ex 

parte  application,   undertaking  on. 


§  567.    Oath  and  undertaking  of  receiver. 
§  568.     Powers  of  receivers. 
§  569.     Investment  of  funds. 

§  570.     Disposition   of   unclaimed   funds   in   hands 
of  receiver. 


§  564.  Appointment  of  receiver.  A  receiver  may  be  appointed  by  the 
court  in  which  an  action  is  pending,  or  by  the  judge  thereof — 

1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase  of  property, 
or  by  a  creditor  to  subject  any  property  or  fund  to  his  claim,  or  between 
partners  or  others  jointly  owning  or  interested  in  any  property  or  fund. 


§564 


RECEIVERS. 


584 


on  the  application  of  the  plaintiff,  or  of  any  party  whose  right  to  or  in- 
terest in  the  property  or  fund,  or  the  proceeds  thereof,  is  probable,  and 
where  it  is  shown  that  the  property  or  fund  is  in  danger  of  being  lost,  re- 
moved, or  materially  injured ; 

2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his  mortgage  and 
sale  of  the  mortgaged  property,  where  it  appears  that  the  mortgaged  prop- 
erty is  in  danger  of  being  lost,  removed,  or  materially  injured,  or  that  the 
condition  of  the  mortgage  has  not  been  performed,  and  that  the  property  is 
probably  insufficient  to  discharge  the  mortgage  debt; 

3.  After  judgment,  to  carry  the  judgment  into  effect ; 

4.  After  judgment,  to  dispose  of  the  property  according  to  the  judgment, 
or  to  preserve  it  during  the  pendency  of  an  appeal,  or  in  proceedings  in  aid 
of  execution,  when  an  execution  has  been  returned  unsatisfied,  or  when  the 
judgment  debtor  refuses  to  apply  his  property  in  satisfaction  of  the  judg- 
ment; 

5.  In  the  cases  when  a  corporation  has  been  dissolved,  or  is  insolvent,  or 
in  imminent  danger  of  insolvency,  or  has  forfeited  its  corporate  rights ; 

6.  In  all  other  cases  where  receivers  have  heretofore  been  appointed  by 
the  usages  of  courts  of  equity. 


Appointment  of  receiver  on  dissolution  of  co- 
operative business  association.  See  Civ.  Code, 
§  653j. 

Legislation  §  564.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  143  (New  York  Code, 
§  244),  as  amended  by  Stats.  1854,  Bedding  ed. 
p.  61,  Kerr  ed.  p.  88,  which  read:  "A  receiver 
may  be  appointed  by  the  court  in  which  the 
action  is  pending,  or  by  a  judge  thereof.  1.  Be- 
fore judgment,  provisionally  on  the  application  of 
either  party  when  he  establishes  a  prima  facie 
right  to  the  property,  or  to  an  interest  in  the 
property,  [whi,ch]  is  the  subject  of  the  action,  and 
which  is  in  possession  of  an  adverse  party,  and 
the  property  or  its  rents  and  profits  are  in  danger 
of  being  lost  or  materially  injured  or  impaired. 
2.  After  judgment  to  dispose  of  the  property 
according  to  the  judgment,  or  to  preserve  it  dur- 
ing the  pending  of  an  appeal,  and,  3.  In  such 
other  cases  as  are  in  accordance  with  the  practice 
of  courts  of  equity  jurisdiction." 

Receiver,  defined.  A  receiver  is  a  per- 
son authorized  to  take  possession  of  prop- 
erty in  litigation  and  hold  it  for  the  liti- 
gant finally  determined  to  be  entitled 
thereto.  Cook  v.  Terry,  19  Cal.  App.  765; 
127  Pac.  816. 

Scope  of  section.  This  section  confines 
the  power  to  appoint  a  receiver  to  the 
court,  or  to  the  judge  thereof  (Quiggle  v. 
Trumbo,  56  Cal.  626) ;  and  the  appointment 
of  receivers,  and  their  duties  and  powers, 
are  regulated,  in  part,  by  this  section. 
Havemeyer  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Eep.  192;  10  L.  R.  A.  627;  24 
Pac.  121. 

Nature  of  remedy.  The  appointment  of 
a  receiver  is  an  equitable  remedy,  and  has 
been  said  to  be,  in  effect,  an  equitable 
execution;  it  is  a  provisional  remedy,  and 
bears  the  relation  to  courts  of  equity  that 
proceedings  in  attachment  bear  to  courts 
of  law:  to  take  possession  of  the  property 
of  another  is,  seemingly,  a  harsh  proceed- 
ing,  but   it   is   justified    by   circumstances 


which  demand  its  adoption,  either  arising 
from  contract  or  the  general  rules  of  law. 
McLane  v.  Placerville  etc.  E.  R.  Co.,  86 
Cal.  606;  6  Pac.  748.  There  is  no  such 
thing  as  an  action  brought  distinctly  for 
the  mere  appointment  of  a  receiver.  La 
Societe  Franqaise  v.  District  Court,  53  Cal. 
495.  Such  an  appointment,  under  this  sec- 
tion, is  merely  auxiliary  to  a  pending  ac- 
tion. Yore  V.  Superior  Court,  108  Cal.  431; 
41  Pac.  477.  A  new  lien  is  not  created 
by  this  section.  Locke  v.  Klunker,  123  Cal. 
231;  55  Pac.  993. 

When  a  receiver  will  be  appointed.  The 
exercise  of  the  power  of  appointing  a  re- 
ceiver rests  in  the  sound  discretion  of  the 
court,  to  be  governed  by  a  view  of  the 
whole  circumstances  of  the  case;  one  of 
the  circumstances  being  the  probability  of 
the  plaintiff  being  ultimately  entitled  to  a 
decree.  Copper  Hill  Mining  Co.  v.  Spencer, 
25  Cal.  11;  La  Societe  Fran^aise  v.  Sel- 
heimer,  57  Cal.  623;  Curnow  v.  Happy 
Valley  etc.  Hydraulic  Co.,  68  Cal.  262;  9 
Pac.  149;  Fish  v.  Benson,  71  Cal.  428;  12 
Pac.  454;  Downing  v.  Le  Du,  82  Cal.  471; 
23  Pac.  202;  Loftus  v.  Fischer,  113  Cal. 
286;  45  Pac.  328.  The  court  has  no  power 
to  appoint  a  receiver  in  an  action  to  which 
the  person  to  be  affected  by  the  order  is 
not  a  party.  Ex  parte  Casey,  71  Cal.  269; 
12  Pac.  lis.  The  authority  conferred  upon 
the  court  to  make  the  appointment  neces- 
sarily presupposes  that  an  action  is  pend- 
ing before  it,  instituted  by  some  one 
authorized  by  law  to  commence  it.  La 
Societe  Franqaise  v.  District  Court,  53 
Cal.  495.  The  appointment  of  a  receiver 
must  be  ancillary  to  a  pending  and  inde- 
pendent cause  of  action:  its  purpose  is  to 
preserve  the  property,  pending  the  litiga- 


585 


DISSOLUTION    OP    PARTNERSHIP — ^FORECLOSURE   SUITS. 


§564 


tion,  80  that  any  judgment  rendered 
therein  may  be  effective.  Hobson  v.  Paciflc 
States  Mercantile  Co.,  5  Cal.  App.  94;  89 
Pac.  8C6.  A  i)arty  to  an  action  sliould  not, 
against  his  will,  be  subjected  to  the 
onerous  expense  of  a  receiver,  except  the 
appointment  is  lawful,  and  obviously 
necessary  for  the  protection  of  the  oppo- 
site party.  De  Leonis  v.  Walsh,  148  Cal. 
254;  82  Pac.  1047.  The  court  has  juris- 
diction to  appoint  a  receiver,  at  the  com- 
mencement of  an  action  to  enforce  a  wife's 
equitable  demand  for  maintenance,  to  pre- 
serve her  equitable  claim  against  the  sepa- 
rate property  of  her  husband,  and  to 
avoid  voluntary  transfers  thereof  by  him 
to  defeat  such  rights.  Murray  v.  Murray, 
115  Cal.  2G6;  5G  Am.  St.  Rep.  97;  37 
L.  R.  A.  626;  47  Pac.  37.  Where  a  par- 
ticular person  is  appointed  a  receiver  by 
the  consent  of  the  then  parties  to  the  ac- 
tion, and  thereafter,  upon  objections  made 
by  intervening  creditors,  he  is  removed, 
and  another  j)erson  is  appointed  receiver 
at  the  request  of  such  interveners,  a  party 
subsequently  substituted  as  plaintiff  in  the 
place  of  the  original  plaintiff  is  not  es- 
topped to  question  the  validity  of  the 
appointment  of  the  second  receiver.  Grant 
V.  Los  Angeles  etc.  Ry.  Co.,  116  Cal.  71;  47 
Pac.  872.  After  judgment  rendered  in 
favor  of  a  plaintiff,  the  mere  fact  that  a 
receiver,  appointed  before  the  judgment, 
at  the  request  of  the  plaintiff,  has  died, 
does  not  warrant  the  appointment  of  an- 
other at  the  request  of  the  defendant. 
De  Leonis  v.  Walsh,  148  Cal.  254;  82  Pac. 
1047.  A  receiver  will  not  be  appointed  to 
take  property  out  of  the  possession  of  a 
defendant,  without  trial,  or  previous  notice 
to  the  defendant,  save  in  case  of  irrep- 
arable pending  injury,  and  in  no  case  where 
a  temporary  injunction  would  be  sufficient. 
Fischer  v.  Superior  Court,  110  Cal.  129;  42 
Pac.  561.  In  an  action  involving  merely 
legal,  as  distinguished  from  equitable, 
rights,  which  proceeds  on  the  assumption 
of  ownership  by  the  plaintiff  of  land  and 
the  profits  thereof,  the  appointment  of  a 
receiver  is  not  authorized  by  law.  San 
Jose  etc.  Bank  of  Savings  v.  Bank  of 
Madera,  121  Cal.  543;  54  Pac.  85.  An  or- 
der appointing  a  receiver,  which  purported 
to  determine  the  question  of  ownership, 
that  was  never  tried  and  never  anywhere 
put  in  issue,  is  erroneous.  Havemever  v. 
Superior  Court,  84  Cal.  327;  18  Am.  St. 
Rep.  192;  10  L.  R.  A.  627;  24  Pac.  121. 

Receiver  upon  dissolution  of  partnership. 
Where  the  title  to  mining  property  belong- 
ing to  a  partnership  stands  in  the  name 
of  a  corporation,  which  possesses  no  inter- 
est in  the  property,  such  property  is  assets 
of  the  copartnership,  and  the  court  is 
authorized  to  appoint  a  receiver  to  take 
charge  of  and  work  it,  in  a  suit  for  the 
dissolution  and  accounting  of  the  partner- 


ship.    Fischer  v.  Superior  Court,   98   Cal. 
67;  32   Pac.   875. 
Receiver  in  actions  of    foreclosure.     A 

recei\  er  should  not  be  ajii)ointc(l,  pomlento 
lite,  in  an  action  to  foreclose  a  mortgage, 
on  the  ground  that  the  mortgaged  prop- 
erty is  in  danger  of  being  materially  in- 
jured, if  the  injury,  though  consi<ierable  in 
extent,  will  still  leave  enough  of  the  prop- 
erty remaining  intact  to  be  ample  security 
for  the  debt  (Title  Insurance  etc.  Co.  v. 
California  Develoi>ment  Co.,  164  Cal.  58; 
127  Pac.  502);  nor  can  a  receiver  be  ap- 
pointed to  collect  and  preserve  future 
rents  to  abide  the  result  of  an  action,  not 
in  the  nature  of  a  suit  in  equity,  to  sub- 
ject the  rents  to  the  payment  of  a  mort- 
gage debt,  but  which  proceeds  on  the 
assumption  of  ownership,  by  the  plaintiff, 
of  the  land  and  the  jjrofits  thereof  (San 
Jose  etc.  Bank  of  Savings  v.  Bank  of 
Madera,  121  Cal.  543;  54  Pac.  85);  nor  can 
the  court  by  the  appointment  of  a  receiver, 
take  from  the  mortgagor,  or  from  any 
person  claiming  under  him,  the  rents,  is- 
sues, and  profits  of  the  mortgaged  premises 
and  apply  them  to  the  mortgage  debt,  un- 
■  less  the  mortgage  so  provides  in  terms. 
Locke  v.  Klunker,  123  Cal.  231;  55  Pac. 
993.  Where,  in  a  mortgage  or  deed  of 
trust  (whether  it  is  a  deed  of  trust  or  a 
simple  mortgage  is  immaterial),  a  power 
is  expressly  conferred  on  the  parties  of  the 
second  part,  in  case  default  is  made  in 
payment  of  the  principal  or  interest  of  the 
bonds,  for  which  such  mortgage  or  deed  of 
trust  was  given  as  security,  to  enter  upon 
and  take  possession  of  the  mortgaged  prop- 
erty, the  appointment  of  a  receiver  of  the 
property  described  in  the  mortgage  or  deed 
of  trust  is  proper,  where  the  mortgagors 
made  default,  and  refused  to  surrender  pos- 
session of  the  mortgaged  property.  Sacra- 
mento etc.  R.  R.  Co.  V.  Superior  Court,  55 
Cal.  453.  Where  a  railway  corporation 
gave,  as  security  for  the  payment  of  bonds, 
a  mortgage  to  trustees,  who  were  empow- 
ered, after  default,  to  collect  the  income 
and  apply  it  to  the  discharge  of  current 
expenses  and  taxes,  upon  default  a  court 
of  equity  has  power  to  appoint  the  sur- 
viving trustee  as  receiver,  with  power  to 
retain  possession  of  the  road  and  exercise 
the  powers  conferred  by  the  mortgage. 
McLane  v.  Plaeerville  etc.  R.  R.  Co.,  66 
Cal.  606;  6  Pac.  748.  Where,  on  a  fore- 
closure sale  of  mortgaged  premises,  a  sum 
sufficient  to  satisfy  the  debt  secured  by 
the  mortgage  is  not  realized,  and  the  plain- 
tiff applies  to  the  court  for  an  order  that 
the  money  derived  from  a  sale  of  a  crop 
grown  on  the  premises  be  applied  to  the 
Iiayment  of  the  deficiency,  the  court  has 
authority  to  appoint  a  receiver.  Mont- 
gomery v.  Merrill,  65  Cal.  432;  4  Pac.  414; 
Treat  v.  Dorman,  100  Cal.  623;  35  Pac.  86. 
An  objection,  in  an  action  of  foreclosure, 
that  the  court  appointed  a  receiver  of  the 


§564 


RECEIVERS. 


586 


rents  and  profits  of  the  premises  during 
the  pendency  of  the  action,  is  answered 
by  this  section,  which  authorizes  the  ap- 
pointment of  receiver,  where  the  condition 
of  the  mortgage  has  not  been  performed, 
and  the  property  is  probably  insufficient  to 
discharge  the  mortgage  debt.  La  Societe 
Franc^aise  v.  Selheimer,  57  Cal.  623.  A 
receiver  should  not  be  appointed  in  actions 
of  foreclosure,  except  upon  a  statement  of 
facts  showing  that  the  actual  value  of  the 
mortgaged  premises  is  less  than  the  debt 
secured,  with  interest  and  costs,  and  that 
resort  to  the  rents  and  profits  is  necessary: 
a  general  statement  in  the  complaint,  that 
the  mortgaged  premises  are  insufficient  to 
pay  and  discharge  the  mortgage  debt, 
being  of  a  mere  conclusion,  is  insufficient 
(Bank  of  Woodland  v.  Stephens,  144  Cal. 
659;  79  Pac.  379);  as  is  also  an  allegation, 
without  further  showing,  that  the  mort- 
gaged property  was  probably  insufficient 
to  pav  the  mortgage  debt.  Locke  v. 
Klunker,  123  Cal.  231;  55  Pac.  993.  The 
purchaser  of  property  at  a  foreclosure  sale 
is  entitled  thereto,  and  to  its  rents  and 
profits,  or  to  the  value  of  the  use  and 
occupation  thereof  from  the  time  of  the 
sale  up  to  the  date  of  any  redemption 
made;  but  where  the  judgment  debtor  re- 
mains in  possession  of  mining  property, 
working  the  same,  and  is  insolvent,  and 
the  value  of  the  property  is  liable  to  be 
destroyed  through  waste,  and  it  is  in  the 
interest  of  all  parties  that  the  work  should 
be  continued,  the  purchaser  is  entitled  to 
an  order  appointing  a  receiver  (Hill  v. 
Taylor,  22  Cal.  191;  Walker  v.  McCusker, 
71  Cal.  594;  12  Pac.  723;  White  v.  White, 
130  Cal.  597;  80  Am.  St.  Rep.  150;  62  Pac. 
1062);  but  there  is  no  provision  in  the 
codes,  nor  any  decision,  nor  any  principle, 
under  which  a  purchaser  is  entitled  to  the 
appointment  of  a  receiver  to  take  charge 
of  property,  during  the  period  of  redemp- 
tion, to  prevent  the  commission  of  waste. 
West  V.  Conant,  100  Cal.  231;  34  Pac.  705; 
Scott  V,  Hotchkiss,  115  Cal.  89;  47  Pac. 
45;  Mau  v.  Kearney,  143  Cal.  506;  77  Pac. 
411.  Where  a  mortgagee  in  possession  has 
not  committed  waste,  nor  otherwise  abused 
his  position,  the  court  has  no  power  to 
appoint  a  receiver  to  collect  the  rents  and 
profits  of  the  mortgaged  property  and  to 
pay  them  out,  giving  priority  to  a  judg- 
ment debt  and  counsel  fees  over  the  claim 
of  the  mortgagee.  Cummings  v.  Cummings, 
75  Cal.  434;  17  Pac.  442.  Where  a  suit  is 
brought  to  enforce  the  specific  execution 
of  the  terms  and  stipulations  of  a  mort- 
gage, by  which,  on  the  happening  of  a 
specific  event,  the  trustees,  or  the  survivors 
of  them,  are  entitled  to  take  possession 
of  the  property  mortgaged,  hold  it,  receive 
the  income  arising  from  it  and  apply  such 
income  according  to  the  terms  of  the  mort- 
gage, the  casus  foederis,  upon  which  the 
surviving  trustee  was  to  take  possession, 
having  occurred,  it  is  within  the  jjrovince 


of  a  court  of  equity,  and  comes  within  the 
provision  of  the  sixth  subdivision  of  this 
section,  authorizing  the  appointment  of  a 
receiver.  McLane  v.  Placerville  etc.  R.  R. 
Co..  66  Cal.  606;  6  Pac.  748.  No  stipula- 
tion can  confer  jurisdiction  upon  the  court 
to  appoint  a  receiver  in  a  case  where 
the  court  has  no  such  authority  given  by 
law.  Scott  V.  Hotchkiss,  115  Cal.  89;  47 
Pac.  45;  Baker  v.  Varnev,  129  Cal.  564; 
79  Am.  St.  Rep.  140;  62  Pae.  100.  Thus, 
the  court  has  no  jurisdiction,  in  an  action 
of  foreclosure,  to  apjioint  a  receiver  of 
rents  and  profits  of  mortgaged  property, 
merely  upon  a  stipulation  in  the  mortgage 
for  such  appointment  in  case  of  default 
and  foreclosure  (Baker  v.  Varney,  129  Cal. 
56-4 ;  79  Am.  St.  Rep.  140;  62  Pac.  100); 
and,  notwithstanding  the  stipulation,  the 
party  who  desires  a  receiver  must  state 
facts  sufficient  to  show  that  the  premises 
mortgaged  are  probably  insufficient  to  pay 
the  mortgage  debt,  with  interest  and  costs. 
Scott  V.  Hotchkiss,  115  Cal.  89;  47  Pae.  45; 
Baker  v,  Varnev,  129  Cal.  564;  79  Am.  St. 
Rep.  140;  62  Pac.  100;  Bank  of  Woodland 
v.  Stephens,  144  Cal.  659;  79  Pac.  379. 
In  an  action  of  foreclosure,  where  there  is 
a  stipulation  in  the  mortgage  that  a  re- 
ceiver may  be  appointed,  and  the  mort- 
gagor is  in  possession  of  land  on  which 
there  are  growing  crops,  and  there  is  an 
averment  that  the  security  is  insufficient, 
the  court  is  authorized  to  appoint  a  re- 
ceiver to  take  and  hold  the  rents  and 
profits  to  secure  the  debt.  Scott  v.  Hotch- 
kiss, 115  Cal.  89;  47  Pac.  45.  Where  there 
is  nothing^n  the  complaint  to  justify  the 
appointment  of  a  receiver  pending  a  fore- 
closure suit,  unless  it  be  a  stipulation  in 
the  mortgage  providing  for  the  appoint- 
ment of  receiver  on  an  ex  parte  applica- 
tion, it  may  be  presumed  that  the  order 
was  made  upon  motion,  and  upon  affidavits 
showing  the  facts  necessary  to  give  the 
court  jurisdiction.  Garretson  Investment 
Co.  V.  Arndt,  144  Cal.  64;  77  Pac.  770. 

Receiver  after  judgment.  The  third 
subdivision  of  this  section  is  very  compre- 
hensive, and  any  suitable  process  or  mode 
of  proceedings  may  be  adopted,  conform- 
ably with  the  spirit  of  the  code;  and 
since  the  powers  and  duties  of  the  person 
appointed  by  the  court  to  execute  convey- 
ances are  fixed  by  the  decree,  it  is  imma- 
terial whether  he  is  called  a  commissioner 
or  a  receiver.  Scadden  Flat  Gold  Mining 
Co.  V.  Scadden,  121  Cal.  33;  53  Pac.  440. 
Where  judgment  was  entered  in  favor  of 
the  plaintiff  in  an  action  for  divorce  and 
alimony,  and  alimony  was  made  a  lien 
upon  property  of  the  defendant,  the  court 
has  power  to  appoint  a  receiver  to  take 
possession  of  the  proj^erty,  collect  the  rents 
and  profits,  and  sell  the  property,  and  pay 
the  sums  adjudged  to  be  due  (Huellmantel 
V.  Huellmantel,  124  Cal.  583;  57  Pac.  582); 
and  the  court  has  power  to  appoint  a  re- 
ceiver, in  whom  legal  title  may  be  vested 


587 


AFTER  JUDGMENT CORPORATIONS. 


§564 


by  a  decree  to  make  a  conveyance,  for 
the  iJUrpose  of  carrying:  a  judgment  into 
effect,  in  an  action  to  compel  a  conveyance 
from  the  heirs  of  a  deceased  person,  many 
of  whom  are  minors  (Scadden  Flat  Gold 
Mining  Co.  v.  Scadden,  121  Cal.  33;  53 
Pac.  440) ;  but  the  court  has  no  jurisdic- 
tion to  appoint  a  receiver  to  carry  into 
effect  a  judgment  for  the  recovery  of  rents, 
where  the  execution  of  such  judgment  has 
been  stayed  by  proper  bond,  pending  an 
appeal  therefrom  by  the  defendant  (San 
Jose  etc.  Bank  of  Savings  v.  Bank  of 
Madera,  121  Cal.  543;  54  Pac.  85);  nor, 
after  the  entry  of  a  money  judgment,  to 
continue  the  receiver  for  the  purpose  of 
enforcing  the  judgment,  where  he  was 
appointed  pending  the  action,  but  took 
possession  of  no  property  before  the  judg- 
ment: his  functions  as  a  receiver  ceased 
with  the  entrv  of  the  judgment.  White  v. 
White,  ISO  Cal.  597;  80  Am.  St.  Rep.  150; 
62  Pac.  1062.  Actions  of  ejectment  are 
not  included  in  the  cases  specified  in  this 
section  in  which  receivers  may  be  named 
before  judgment  (Bateman  v.  Superior 
Court,  54  Cal.  285;  Scott  v.  Sierra  Lumber 
Co.,  67  Cal.  71;  7  Pac.  131);  but  a  receiver 
may  be  appointed  in  an  action  of  eject- 
ment, after  judgment,  during  the  pendency 
of  the  appeal.  Garniss  v.  Superior  Court, 
88  Cal.  413;  26  Pac.  351.  Upon  proceed- 
ings supplementary  to  execution,  it  is 
proper  to  order  an  execution  debtor  to 
make  an  assignment,  to  a  receiver,  of  his 
patent  right  to  an  invention.  Pacific  Bank 
V.  Robinson,  57  Cal.  520;  40  Am.  Rep. 
120.  Seats  in  stock  and  produce  ex- 
changes constitute  property  within  the 
reach  of  judgment  creditors  of  the  owner, 
and  an  order  may  be  properly  made,  upon 
proceedings  supplementary  to  execution 
against  an  owner  of  such  seats,  appointing 
a  receiver,  directing  the  execution  debtor 
to  make  an  assignment  thereof  to  him  to 
sell  the  same  to  satisfy  the  judgment. 
Habenicht  v.  Lissak,  78  Cal.  351;  12  Am. 
St.  Rep.  63;  5  L.  R.  A.  713;  20  Pac.  874. 
•While  Federal  courts  have  jurisdiction  of 
questions  arising  as  to  the  title  to  letters 
patent  of  the  United  States,  yet,  as  they 
are  not  exempt  from  seizure  and  sale  by 
the  laws  of  the  state,  a  court  of  equity 
can  compel  a  defendant  to  assign  them  to 
a  receiver,  to  be  sold  and  applied  to  the 
satisfaction  of  judgments  against  him. 
Pacific  Bank  v.  Robinson,  57  Cal.  520;  40 
Am.   Rep.   120. 

Receivers  of  corporations.  Under  the 
code,  the  rule  is,  not  to  appoint  a  receiver 
to  administer  the  assets  of  a  defunct  cor- 
poration, but  to  leave  the  whole  matter  of 
liquidation  and  distribution  to  the  exclu- 
sive control  of  the  directors  at  the  date 
of  dissolution,  unless,  upon  the  showing  of 
some  party  interested,  either  a  creditor  or 
a  stockholder,  it  is  necessary,  for  the  pro- 
tection of  his  rights,  that  a  receiver,  under 
the  control  and  superintendence  of  a  court 


of    equity,    be    appointed.     Havemeyer    v. 

Sui)erior' Court,  84  Cal.  327;  18  Am.  St. 
Rep.  192;  10  L.  R.  A.  627;  24  Pac.  121. 
The  court  has  no  jurisdiction  to  appoint 
a  receiver  for  a  corporation,  organized  for 
mutual  protection,  and  for  the  payment  of 
8ti])ulated  sums  to  members,  and  not  for 
profit,  on  the  alleged  ground  that  its  lia- 
bilities exceed  its  assets,  that  nearly  half 
of  its  assets  arc  due  on  policies  to  deceased 
members,  and  that  salaries  and  expenses 
are  wasting  the  assets,  where  there  is  no 
fraud  or  mismanagement,  and  the  corpora- 
tion was  not  dissolved  nor  adju<lged  in- 
solvent, nor  had  forfeited  its  right  to  do 
business  (Murray  v.  Superior  Court,  129 
Cal.  628;  62  Pac'.  191);  nor  has  the  court 
jurisdiction  to  appoint  a  receiver,  during 
the  pendency  of  an  action  by  a  private 
person,  to  take  control  of  the  property 
and  business  of  a  corporation  out  of  the 
corporate  management,  where  it  is  operat- 
ing its  business,  and  asserting  full  own- 
ership and  right  to  the  property.  Fischer 
v.  Superior  Court,  110  Cal.  129;  42  Pac. 
561.  Where  a  corporation  ceases  to  exist 
from  any  cause,  whether  from  lapse  of 
time,  voluntary  dissolution,  or  judgment 
of  forfeiture  for  abuse  of  its  powers,  it 
necessarily  results  that  its  property  is  left 
to  be  disposed  of  according  to  law;  and, 
in  the  absence  of  any  statute  regulating 
the  matter,  a  court  of  equity  has  the  un- 
doubted right,  in  a  proper  proceeding  in- 
stituted bj'  a  creditor  or  stockholder,  to 
appoint  a  receiver  to  administer  the  prop- 
erty. Havemever  v.  Superior  Court,  84 
Caf.  327;  18  Am.  St.  Rep.  192;  10  L.  R.  A. 
627;  24  Pac.  121.  There  is  no  jurisdiction 
vested  in  courts  of  equity  to  appoint  a 
receiver  of  the  property  of  a  corporation, 
in  aid  of  a  suit  prosecuted  by  a  j)rivate 
party.  La  Societe  Francjaise  v.  District 
Court,  53  Cal.  495;  Bateman  v.  Superior 
Court,  54  Cal.  285;  Smith  v.  Superior 
Court,  97  Cal.  348;  32  Pac.  322;  State 
Investment  Co.  v.  Superior  Court,  101  Cal. 
135;  35  Pac.  549;  Fischer  v.  Superior  Court, 
110  Cal.  129;  42  Pac.  561;  Murray  v.  Su- 
perior Court,  129  Cal.  628;  62  Pac.  191; 
White  V.  White,  130  Cal.  597;  80  Am.  St. 
Rep.  150;  62  Pac.  1062.  Under  this  sec- 
tion and  §  400,  ante,  the  legislature  has 
left  to  the  directors  of  a  corporation,  con- 
victed of  violating  their  duty  to  the  people 
of  the  state,  power  and  discretion  to  pay 
their  own  debts  and  to  divide  their  own 
property,  subject  to  the  right  of  a  court 
of  equity  to  interfere  and  compel  them 
to  proceed  properly,  if  any  occasion  for 
such  interference  should  arise;  ami  as  to 
creditors,  their  interest  must,  in  most 
cases,  be  opposed  to  the  appointment  of  a 
receiver.  Havemever  v.  Superior  Court, 
84  Cal.  327;  18  Am.  St.  Rep.  192;  10 
L.  R.  A.  627;  24  Pac.  121.  A  court  of 
equity  has  no  inherent  power  to  appoint 
a  receiver  of  an  insolvent  corporation, 
merely  because  of  its  insolvency.    Hobsoa 


564 


RECEIVERS. 


588 


V.  Pacific  States  Mercantile  Co.,  5  Cal. 
App.  94;  89  Pae.  S66.  The  provision  of 
the  fifth  subdivision  of  this  section,  that 
a  receiver  "may"  be  appointed  when  a 
corporation  has  forfeited  its  charter,  does 
not  mean  that  a  receiver  "must"  be  ap- 
pointed, on  the  ground  that  the  public  has 
an  interest  that  the  power  shall  be  exer- 
cised: the  creditors  and  stockholders  are 
the  only  parties  whose  interest  can  demand 
the  appointment  of  a  receiver,  under  §  565, 
post.  Havemeyer  v.  Superior  Court,  84 
Cal.  327;  18  Am.  St.  Rep.  192;  10  L.  R.  A. 
627;  24  Pae.  121.  The  appointment  of  a 
receiver  to  administer  the  assets  of  a  cor- 
poration whose  charter  is  forfeited  is  not 
designed  as  a  penalty  or  part  of  the  pun- 
ishment to  be  visited  upon  the  stockhold- 
ers of  the  corporation  in  a  proceeding  ih 
quo  warranto;  but  the  punishment  is  lim- 
ited to  the  forfeiture  of  the  charter,  and 
the  fine  which  the  court  may,  in  its  dis- 
cretion, impose;  and  the  court  cannot  fur- 
ther affect  the  corporate  property  by  its 
judgment,  nor  take  it  away  from  its 
stockholders.    Id. 

Powers  of  courts.  There  is  no  jurisdic- 
tion to  appoint  a  receiver  of  the  property 
of  a  corporation  in  a  quo  warranto  pro- 
ceeding, upon  a  judgment  of  forfeiture  of 
its  corporate  charter:  a  new  suit  must  be 
commenced  by  a  creditor  or  stockholder 
of  the  corporation  for  that  purpose.  Have- 
meyer v.  Superior  Court,  84  Cal.  327;  18 
Am.  St.  Eep.  192;  10  L.  R.  A.  627;  24  Pae. 
121.  A  judgment  declaring  that  a  cor- 
poration defendant  is  guilty  of  usurping 
rights  and  franchises,  "as  charged  and  al- 
leged in  the  complaint,"  and  adjudging 
that  the  defendant  be  excluded  from  "such 
rights,  privileges,  and  franchises,"  does  not 
dissolve  the  corporation,  nor  undertake  to 
do  so;  and  an  order  appointing  a  receiver 
thereupon  is  without  authority,  and  void. 
Yore  V.  Superior  Court,  108  Cal.  431;  41 
Pae.  477.  A  court  of  equity  has  power 
to  remove  the  directors  of  a  corporation 
for  fraudulent  practices,  and,  when  they 
have  abandoned  their  trust,  may  make  an 
ex  parte  order  appointing  a  receiver  to 
preserve  its  assets.  California  Fruit  Grow- 
ers' Ass'n  V.  Superior  Court,  8  Cal.  App. 
711;  97  Pae.  769.  An  order  appointing 
a  receiver,  and  a  decree  directing  a  sale 
of  the  property  and  a  settlement  of  the 
affairs  of  a  corjjoration,  necessarily  result 
in  the  dissolution  of  the  corporation,  and 
the  court  thus  accomplishes  indirectly  that 
which  it  has  no  power  to  do  directly: 
courts  of  equity,  as  such,  have  no  juris- 
diction to  restrain  the  operations  or  wind 
up  the  affairs  of  corporations.  Neall  v. 
Hill,  16  Cal.  145;  76  Am.  Dec.  508;  La  So- 
ciete  Franr^aise  v.  District  Court,  53  Cal. 
495;  Fischer  v.  Superior  Court,  110  Cal. 
129;  42  Pae.  561.  The  rendition  of  the 
judgment  authorized  by  §  809,  post,  ends 
the   proceedings,   and    no   receiver   can   be 


appointed,  unless  a  new  suit  is  commenced 
by  a  creditor  or  stockholder  of  the  corpo- 
ration for  that  purpose,  under  this  section. 
Havemeyer  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Eep.  192;  10  L.  R.  A.  627;  24 
Pae.  121. 

Where  authorized  by  usages  of  courts 
of  equity.  Where  the  court  has  general 
jurisdiction  in  a  case,  the  authority  to  ap- 
point a  receiver  is  clearly  given  in  both 
the  fifth  and  the  sixth  subdivisions  of  this 
section;  and  such  appointment  in  no  way 
affects  the  title  of  any  party  to  the  prop- 
erty involved,  but  simply  preserves  it,  and 
keeps  it  within  the  jurisdiction  of  the 
court,  until  the  rights  of  the  parties  are 
determined.  Loaiza  v.  Superior  Court,  85 
Cal.  11;  20  Am.  St.  Rep.  197;  9  L.  R.  A. 
376;  24  Pae.  707.  The  rule  in  equity  is, 
that  a  receiver  may  be  ajjpointed  before 
answer,  provided  the  plaintiff  can  satisfy 
the  court  that  he  has  an  equitable  claim 
to  the  property  in  controversy,  and  that  a 
receiver  is  necessary  to  preserve  the  same 
from  loss;  but  such  power  should  be  very 
cautiously  exercised.  Murray  v.  Murray, 
115  Cal.  266;  56  Am.  St.  Rep.  97;  37 
L.  R.  A.  626;  47  Pae.  37.  The  sixth  sub- 
division of  this  section  is  but  declaratory 
of  the  equity  jurisdiction  conferred  upon 
the  district  courts  by  the  former  constitu- 
tion, in  giving  them  jurisdiction  in  "all 
eases  in  equity,"  and  includes  only  the 
suits  in  which  it  has  been  the  usage  of 
courts  of  equity  to  appoint  a  receiver; 
their  jurisdiction  in  this  respect  would 
have  been  the  same  in  the  absence  of  the 
statutory  provision.  Bateman  v.  Superior 
Court,  54  Cal.  285;  McLane  v.  Placerville 
etc.  R.  R.  Co.,  66  Cal.  606;  6  Pae.  748; 
Loaiza  v.  Superior  Court,  85  Cal.  11;  20 
Am.  St.  Rep.  197;  9  L.  R.  A.  376;  24  Pae. 
707.  Where  a  municipal  corporation  con- 
tracted with  a  water  company  to  grant 
certain  privileges  in  consideration  of  the 
company  making  certain  improvements  to 
property,  which  was  to  be  surrendered 
after  a  term  of  years,  on  payment  for  the 
same  by  the  municipality,  which,  at  the 
expiration  of  the  term,  it  was  unable  to 
do,  but  brought  an  action  for  the  appoint- 
ment of  a  receiver  to  collect  and  receive 
the  rents,  issues,  and  profits  of  the  prop- 
erty, including  water  rates,  there  is  no 
just  ground  for  the  appointment  of  a  re- 
ceiver to  take  away  from  the  company  its 
current  revenues,  before  final  settlement 
and  payment  by  the  municipality  of  the 
value  of  the  improvements.  Los  Angeles 
v.  Los  Angeles  City  Water  Co.,  124  Cal. 
368;    57    Pae.    210. 

Receiver  in  partition  proceedings.  It  is 
competent  for  a  court  of  equity,  in  some 
cases,  to  api^oint  a  receiver,  in  actions  of 
partition,  to  take  possession  of  the  prop- 
erty and  hold  it  for  the  benefit  of  all 
parties  in  interest  (Goodale  v.  Fifteenth 
District    Court,    56    Cal.    26);    and   though 


589 


NOTICE — UNDERTAKING — APPOINTMENT,   ETC. — REMEDIES. 


^564 


actions  in  partition  are  regulated  to  a 
great  extent  by  statute,  yet  they  partake 
more  fully  of  the  principles  and  rules  of 
equity  than  those  of  law;  and  whenever  it 
is  necessary  to  protect  the  interests  of  all 
the  parties,  the  court  will,  upon  proper  ap- 
plication, appoint  a  receiver.  Woodward 
V.  Superior  Court,  95  Cal.  272;  30  Pac.  535. 
A  receiver  pendente  lite  may  be  appointed, 
in  an  action  of  partition,  where  a  tenant 
in  common  of  a  growing  crop  is  in  the 
sole  possession  thereof,  and  denies  the 
right  of  his  co-tenant  to  any  part  thereof, 
and  threatens  to  sell  the  entire  crop  aud 
appropriate  the  proceeds  to  his  own  use. 
Baughman  v.  Reed,  75  Cal.  319;  7  Am. 
St.  Rep.  170;  17  Pac.  222;  Rohrer  v.^ab- 
cock,   126   Cal.  222;  58  Pac.  537. 

Notice  and  undertaking.  The  appoint- 
ment of  a  receiver  to  take  property  out 
of  tho  defendant's  possession,  without  a 
trial,  will  not  ordinarily  be  made  without 
previous  notice  to  the  defendant.  Hobson 
V.  Pacific  States  Mercantile  Co.,  5  Cal. 
App.  94;  89  Pac.  866.  The  appointment  of 
a  receiver  to  take  property  and  business 
out  of  the  hands  of  persons  in  possession, 
claiming  ownership  thereof,  without  re- 
quiring a  bond  from  the  plaintiff,  is,  in 
most  cases,  a  gross  abuse  of  discretion. 
Fischer  v.  Superior  Court,  110  Cal.  129;  42 
Pac.  561.  A  receiver  will  not  be  appointed 
U{)on  his  ex  parte  application,  without  re- 
quiring ample  security  by  his  undertaking, 
with  sufficient  sureties,  for  all  damages 
that  may  be  caused  by  the  appointment. 
Havemeyer  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Rep.  192;  10  L.  R.  A.  627;  24 
Pac.  121.  An  order  granting  an  injunc- 
tion and  appointing  a  receiver,  without 
any  notice,  or  any  bond  from  the  plaintiff 
on  the  appointment  of  the  receiver,  is 
null  and  void.  Fischer  v.  Superior  Court, 
110  Cal.  129;  42  Pac.  561.  Court  commis- 
sioners have  no  jurisdiction  to  appoint  a 
receiver:  a  bond  given  by  a  receiver  so 
appointed  is  void.  Quiggle  v.  Trumbo,  56 
Cal.  626. 

Order  appointing  receiver.  In  the  ap- 
pointment of  a  receiver,  the  court  should 
declare  precisely  what  iJrojierty  is  to  con- 
tinue in  the  hands  of  the  receiver,  or  to 
be  otherwise  subject  to  the  satisfaction  of 
judgment,  and  the  remainder,  if  any, 
should  be  wholly  exempt  from  the  effect 
of  the  judgment  (Murray  v.  Murray,  115 
Cal.  266;  56  Am.  St.  Rep\  97;  37  L.  R.  A. 
626;  47  Pac.  37;  and  see  Havemeyer  v. 
Superior  Court,  84  Cal.  327;  18  Am.  St. 
Rep.  192;  10  L.  R.  A.  627;  24  Pac.  121); 
but  it  is  sufficient,  in  appointing  the  re- 
ceiver or  assignee  of  an  insolvent,  or  a 
corporation  or  partnership,  or  the  executor 
or  administrator  of  a  decedent,  to  mention 
generally  all  the  property  of  the  insolvent, 
(■orporation  or  partnership,  or  decedent. 
Havemeyer  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Rep.  192;   10  L.  R.  A.  627;   24 


Pac.  121.  An  order  api)ointing  a  receiver, 
though  very  informal,  is  sufficient,  if  it 
carries  an  authority  to  the  ai)i)ointee  to 
take  possession  of  the  property,  and  hold 
it  ]>ending  the  litigation,  subject  to  the 
further  order  of  the  court.  Cook  v.  Terry, 
19  Cal.  App.  765;  127  Pac.  816.  The  ap- 
pointment of  a  receiver  does  not  operate 
as  a  sequestration  of  the  property  men- 
tioned in  the  order  of  appointment,  where 
the  com]dainant,  at  M'hose  instance  the  re- 
ceiver was  appointed,  had  some  estate  in, 
or  some  right  to,  or  some  lien  upon,  the 
property  involved,  prior  to  and  indepen- 
dently of  the  a])pointment  of  the  receiver, 
and  the  receiver  is  then  appointed  to  i)re- 
serve  and  enforce  his  pre-existing  right. 
Bank  of  Woodland  v.  Heron,  120  Cal.  614; 
52  Pac.  1006.  Where  the  court,  by  its 
order,  takes  property  out  of  the  actual 
possession  of  a  stranger  to  the  proceeding, 
who  claims  it  as  his  own,  the  order  is  in 
excess  of  jurisdiction  and  void,  irrespec- 
tive of  the  actual  state  of  the  title,  because 
no  man  can  be  deprived  of  his  property 
without  due  process  of  law;  nor  can  a 
court  take  property  from  his  possession 
without  a  hearing,  and  compel  him  to 
prove  title  to  regain  it.  Havemeyer  v. 
Superior  Court,  84  Cal.  327;  18  Am.  St. 
Rep.  192;  10  L.  R.  A.  627;  24  Pac.  121. 
Damages  for  attorneys'  fees  for  a  dissolu- 
tion of  the  order  appointing  a  receiver 
cannot  be  allowed,  where  such  fees  have 
not  been  paid.  Cook  v.  Terry,  19  Cal.  App. 
765;  127  Pac.  816. 

Discharge  of  receiver.  Where  a  re- 
ceiver was  appointed  for.  a  purpose  ancil- 
lary to  the  main  object  of  the  action,  and 
final  judgment  was  rendered  in  favor  of 
the  defendant,  from  which  an  appeal  was 
taken,  the  court  has  jurisdiction  to  dis- 
charge the  receiver  (Baughman  v.  Superior 
Court,  72  Cal.  572;  14  Pac.  207);  and  the 
court  has  power  to  vacate  the  appoint- 
ment of  a  receiver,  improvidently  made, 
notwithstanding  a  motion  for  a  new  trial 
is  pending,  and  admitting  that  the  effect 
of  the  motion  is  to  stay  the  proceedings 
generally.  Copper  Hill  Mining  Co.  v.  Spen- 
cer, 25   Cal.   11. 

Remedies  for  erroneous  appointment. 
Since  the  amendment  in  1897  of  §  939, 
post,  allowing  an  appeal  from  an  order 
appointing  a  receiver,  and  the  amend- 
ment, at  the  same  time,  of  §  943,  post, 
providing  for  the  staying  of  the  order  by 
an  undertaking  on  appeal,  a  writ  of  pro- 
hibition will  not  lie  to  arrest  proceedings 
under  such  an  order,  as  the  aggrieved 
party  has  a  plain,  speedy,  and  adequate 
remedy  at  law,  within  the  meaning  of 
§  1103,  i>ost,  notwithstanding  a  question 
of  jurisdiction  is  involved  in  the  applica- 
tion for  the  writ.  .Jacobs  v.  Superior 
Court,  133  Cal.  364;  85  Am.  St.  Rep.  204; 
65  Pac.  826.  Although  a  party  could,  be- 
fore  that   amendment,   move   the   court   to 


§564 


RECEIVERS. 


590 


set  aside  an  invalid  order  appointing  a  re- 
ceiver, yet  this  was  not  a  ground  for  re- 
fusing an  application  for  a  writ  of  prohibi- 
tion: the  most  that  could  be  claimed  was, 
that  the  application  should  have  been 
made  to  the  lower  court  before  moving 
for  the  writ.  Havemeyer  v.  Superior 
Court,  84  Cal.  327;  18  Am.  St.  Eep.  192; 
10  L.  E.  A.  627;  24  Pac.  121;  and  see 
Jacobs  V.  Superior  Court,  133  Cal.  364;  85 
Am.  St.  Rep.  204;  65  Pac.  826.  Where 
judgment  was  had  against  a  corporation, 
and  execution  was  levied  upon  moneys 
and  personal  property  held  by  a  receiver 
of  the  corporation,  illegally  appointed,  pro- 
hibition was  the  proper  remedy  to  restrain 
the  court  from  withholding  such  assets 
from  the  creditor  (Murray  v.  Superior 
Court,  129  Cal.  628;  62  Pac.  191);  and 
prohibition  was  the  proper  remedy  to  pre- 
vent the  attempted  receivership  of  the 
property  of  a  corporation,  during  the  pen- 
dency of  an  action  to  displace  the  man- 
agement of  the  corporation  by  its  directors 
(Fischer  v.  Superior  Court,  110  Cal.  129; 
42  Pac.  561) ;  and  also  where  no  sufficient 
ground  for  the  appointment  of  a  receiver 
exists  (Murray  v.  Superior  Court,  129  Cal. 
628;  62  Pac.  191);  and  also  where  the 
court  appointed  a  receiver  and  commanded 
a  court  of  concurrent  jurisdiction,  which 
had  first  assumed  jurisdiction  in  the  mat- 
ter, and  appointed  a  receiver,  to  desist 
from  proceeding  further  (Fischer  v.  Su- 
perior Court,  110  Cal.  129;  42  Pac.  561); 
and  also  where  the  court,  through  its  re- 
ceiver, was  doing  an  injury  to  the  peti- 
tioners, in  possession  of  the  property  under 
claim  of  ownership.  Havemeyer  v.  Su- 
perior Court,  84  Cal.  327;  18  Am.  St.  Eep. 
192;  10  L.  R.  A.  627;  24  Pac.  121;  Bishop 
v.  Superior  Court,  87  Cal.  226;  25  Pac.  435; 
Cosby  V.  Superior  Court,  110  Cal.  45;  42 
Pac.  460;  Fischer  v.  Superior  Court,  110 
Cal.  129;  42  Pac.  561;  Jacobs  v.  Superior 
Court,  133  Cal.  364;  85  Am.  St.  Eep.  204; 
65  Pac.  826.  If  the  order  appointing  the 
receiver  is  only  collaterally  involved,  it 
cannot  be  assailed,  except  for  want  of 
jurisdiction.  Title  Insurance  Co.  v.  Grider, 
152  Cal.  746;  94  Pac.  601.  As  against  a 
collateral  attack  upon  an  order  appointing 
a  receiver,  the  jurisdiction  of  the  court 
will  be  upheld  and  its  action  validated,  if 
this  can  be  done,  even  though  the  facts 
showing  such  jurisdiction  are  defectively 
stated  and  inferences  must  be  indulged  in 
to  support  the  judgment.  Illinois  Trust 
etc.  Bank  v.  Pacific  Ey.  Co.,  115  Cal.  285; 
47  Pac.  GO.  A  mere  averment  that  the 
value  of  property  mortgaged  is  insuffi- 
cient, or  that  the  premises  are  insufficient, 
may  be  sufficient  to  uphold  an  order  ap- 
pointing a  receiver  where  the  attack  is 
collateral,  but  not  where  there  is  a  direct 
attack  upon  appeal.  Bank  of  Woodland  v. 
Stephens,  144  Cal.  659;  79  Pac.  379.  Where 
a  party,  on  petition,  obtained  an  order  to 


show  cause  why  a  writ  of  review  of  pro- 
ceedings for  the  appointment  of  a  receiver 
should  not  issue,  and  it  does  not  appear 
whether  the  order  was  made  with  or  with- 
out notice,  or  that  the  court  was  not 
justified  in  directing  the  taking  and  hold- 
ing of  the  property  until  adjudication 
could  be  had,  such  writ  operates  only  as 
to  excess  of  jurisdiction,  as  the  complaint 
for  the  appointment  of  a  receiver  may 
have  showed  a  case  in  which  an  appoint- 
ment was  proper.  Eeal  Estate  Associates 
v.  Superior  Court,  60  Cal.  223.  Where 
the  court  has  general  jurisdiction  to  ap- 
point a  receiver,  error  in  the  exercise  of 
that  jurisdiction  is  reviewable  only  on 
appeal,  and  not  by  certiorari.  Loaiza  v. 
Superior  Court,  85  Cal.  11;  20  Am.  St.  Eep. 
197;  9  L.  E.  A.  376;  24  Pac.  707;  White 
V.  Superior  Court,  110  Cal.  60;  42  Pac. 
480.  Where  the  court  has  jurisdiction  of 
the  subject-matter  and  of  the  parties,  it 
has  power  to  hear  and  determine  a  motion 
for  the  appointment  of  a  receiver,  and 
its  action  thereon  cannot  be  regarded  as 
in  excess  of  its  jurisdiction;  and  if  error 
is  committed,  the  petitioner  has  a  plain, 
speedy,  and  adequate  remedy  in  due  course 
of  law,  and  the  writ  of  prohibition  cannot 
issue  (Woodward  v.  Superior  Court,  95 
Cal.  272;  30  Pac.  535;  and  see  Jacobs  v. 
Superior  Court,  133  Cal.  364;  85  Am.  St. 
Eep.  204;  65  Pac.  826);  nor  can  the  title 
to  property  be  tried  upon  a  writ  of  prohibi- 
tion. Havemeyer  v.  Superior  Court,  84  Cal. 
327;  18  Am.  St.  Eep.  192;  10  L.  E.  A.  627; 
24  Pac.   121. 

Appointment  of  receiver  to  collect  rents  of 
mortgaged  property.  See  note  27  Am.  St.  Kep. 
793. 

When  and  over  what  property  receiver  will  be 
appointed.    See  note  64  Am.   Dec.  482. 

When  proper  to  appoint  receiver.  See  note  72 
Am.  St.  Rep.  29. 

Equitable  right  to  appointment  of  receiver  in 
action  maintained  solely  for  such  relief.  See  note 
4  Ann.   Cas.   66. 

Sufficiency  of  affidavit  for  appointment  of  re- 
ceiver sworn  to  upon  information  and  belief.  See 
note  11  Ann.  Cas.  980. 

Affidavit  or  verified  bill  as  essential  to  appoint- 
ment of  receiver.    See  note  Ann.  Cas.  19 13 A,  608. 

Right  to  appointment  of  receiver  before  suit  is 
instituted.    See  note  Ann.  Cas.  1912B,  236. 

Power  of  court  to  appoint  receiver  in  absence 
of  statute.    See  note  Ann.  Cas.   1913B,   648. 

Appointment  of  receivers  for  corporation.  See 
note  118  Am.  St.  Rep.  198. 

Misconduct  of  officers  or  directors  of  corpora- 
tion as  ground  for  appointment  of  receiver.  See 
note  17  Ann.  Cas.  916. 

Who  is  "creditor"  entitled  to  apply  for  ap- 
pointment of  receiver  for  insolvent  corporation. 
See  note  Ann.  Cas.   1912.4,   901. 

Power  to  appoint  receivers  of  corporations 
when  no  other  relief  is  asked.  See  note  20 
L.   i;.   A.   210. 

Inherent  jurisdiction  of  equity  independent  of 
statute,  at  the  instance  of  stockholders,  to  ap- 
point a  receiver  because  of  mismanagement  or 
fraud  of  corporate  officers.  See  note  39  L.  R.  A. 
(N.   S.)    1032. 

Exhausting  remedies  at  law  as  a  condition  of 
judgment  creditor's  right  to  receivership.  See 
note  33  L.  R.  A.  .■■>46. 

Right  to  have  receiver  appointed  to  take  charge 
of  claims  not  legally  or  equitably  enforceable. 
Sec  note  5  L.  R.  A.   (N.  S.)   771. 


591 


APPOINTMENT  OP,   UPON  DISSOLUTION   OF  CORPORATION. 


§  565 


When  notice  of  application  for  appointment  of 
receiver  of  growing  crop  may  be  dispensed  with. 
Seo  note  11   L.  H.  A.    (N.  S.)   9G(>. 

Jurisdiction  of  equity  to  appoint  receiver  of 
real  property  in  another  state.  See  note  69 
L.   K.  A.   6'J3. 

Jurisdiction  of  equity  to  appoint  receiver  to 
preserve  status  quo  pending  action  or  proceed- 
ings before  other  tribunal.  See  uoto  38  L.  K.  A. 
(i\.  S.)   228. 

CODE  COMMISSIONERS' NOTE.  1.  Receiver, 
appointment  of.  I'lie  county  judgo  cannot  (as  a 
thinfj  distinct  from  the  injunction)  appoint  a  re- 
ceiver in  an  action  pending  in  tlie  district  court. 
Ruthrauff  v.  Kresz,  13  Cal.  G39.  The  general 
rule  is,  that  a  receiver  should  not  be  appointed 
without  notice  to  tlie  adverse  party.  People  v. 
Norton,  1  Paige,  17;  Field  v.  Kiploy,  20  How. 
Pr.  26;  Kemp  v.  Harding,  4  How.  Pr.  178;  Dorr 
V.  No-xon,  5  How.  Pr.  29.  Except  in  special  cases, 
where  irreparable  injury,  or  the  like,  will  be  sus- 
tained by  the  delay.  West  v.  Swan,  3  Edw.  Ch. 
420.  The  merits  are  not  inquired  into,  upon  tlie 
motion  to  apnoint  a  receiver.  Sheldon  v.  Weeks, 
2  Barb.  532;  Conro  v.  Gray,  4  How.  Pr.  166; 
Higgins  V.  Bailey,  7  Rob.  613.  The  application 
relates  only  to  the  preservation  of  the  property. 
Sheldon  v.  Weeks,  2  Barb.  532;  Chapman  v.  Ham- 
mersly,  4  Wend.  173.  The  appointment  rests 
in  the  sound  discretion  of  the  court.  Copper  Hill 
M.  Co.  V.  Spencer,  25  Cal.  15.  A  third  party 
cannot  take  advantage  of  an  irregularity  in  the 
appointment.  Tyler  v.  Whitney,  12  Abb.  Pr.  465; 
Tyler  v.  Willis,  33  Barb.  327.  The  court  may 
revoke  the  order  appointin|>  a  receiver,  at  any 
time  before  the  appointment  is  consummated,  and 
appoint  another  person.  Siney  v.  New  York  Con. 
Stage  Co.,  28  How.  Pr.  481;   18  Abb.  Pr.  435. 

2.  Subd.  1.  The  purchaser  at  judicial  sale  of 
a  mining  claim  may,  where  the  judgment  debtor 
remains  in  possession,  working  the  claim,  and  is 
insolvent,  have  a  receiver  appointed  lo  take  charge 
of  the  proceeds,  pending  the  time  for  redemption. 
Hill  V.  Taylor,  22  Cal.  191.  A  crop  of  grain  is 
part  of  the  land,  and  if  a  plaintiff  is  entitled  to 
recover  the  land  from  the  possession  of  another, 
he  is  also  (the  proper  showing  being  made)  en- 
titled to  a  receiver  to  harvest  and  preserve  the 
crop.    Corcoran  v.  Doll,  35  Cal.  476. 

3.  Subd.  2.  See  Guy  v.  Ide,  6  Cal.  101;  65 
Am.  Dec.  490;  Hill  v.  Taylor,  22  Cal.  191.  As 
a  general  rule,  the  mortgagee  in  possession  will 
not  be  deprived  of  the  possession  by  the  appoint- 
ment of  a  receiver.  Bolles  v.  Duff,  35  How.  Pr. 
481.  Caution  must  be  used  in  appointing  a  re- 
ceiver in  mortgage  cases.  Shotwell  v.  Smith,  3 
Edw.  Ch.  588;  Bank  of  Ogdensburg  v.  Arnold,  5 
Paige,  38;  Warner  v.  Gouverneur's  Executors,  1 
Barb.  36.  If  the  mortgagee  in  a  chattel  mort- 
gage has  possession,  a  receiver  will  only  be  ap- 
pointed in  case  of  pressing  necessity.  Bolles  v. 
Duff,  35  How.  Pr.  481;  Patten  v.  Accessory 
Transit  Co..  4  Abb.  Pr.  235.  See  also  Thompson 
V.  Van  Vechten,  5  Duer,  618,  and  Bayaud  v.  Fel- 
lows, 28  Barb.  451. 

4.  Subd.    3.   May   be    appointed    in    proceedings 

§  565.  Appointment  of  receivers  upon  dissolution  of  corporations.  Upon 
the  dissolution  of  any  corporation,  the  superior  court  of  the  county  in  which 
the  corporation  carries  on  its  business  or  has  its  principal  place  of  business, 
on  application  of  any  creditor  of  the  corporation,  or  of  any  stockholder  or 
member  thereof,  may  appoint  one  or  more  persons  to  be  receivers  or  trustees 
of  the  corporation,  to  take  charge  of  the  estate  and  effects  thereof,  and  to 
collect  the  debts  and  property  due  and  belonging  to  the  corporation,  and  to 
pay  the  outstanding  debts  thereof,  and  to  divide  the  moneys  and  other  prop- 
erty that  shall  remain  over  among  the  stockholders  or  members. 


supplementary  to  execution.  Hathaway  v.  Brady, 
26  Cal.  586.  After  judgment,  in  an  action  to  re- 
cover possession  of  real  estate,  and  while  a  mo- 
tion for  a  new  trial  is  pending,  a  receiver  of  the 
rents  and  proceeds  of  the  property  in  dispute  may 
be  appointed,  if  the  facts  of  ihe  ca:-e  are  such  as 
warrant   it.    Whitney  v.  iSuckman,  26  Cal.  447. 

i).  Subd.  4.  See  Hathaway  v.  Brady,  26  Cal. 
.5  ■  't. 

6.  Subd.  5.  See  §  565  of  this  code.  Tn  NeaU  v. 
Hill,  16  Cal.  148,  76  Am.  Dec.  508,  it  was  held 
that  a  court  of  equity  has  no  jurisdiction  over 
corporations  for  the  purpose  of  restraining  their 
operations  or  winding  up  their  concerns;  thai 
while  it  might  compel  the  ofticers  of  the  corprjra- 
tion  to  account  for  any  breach  of  trust,  the  juris 
diction  for  this  purpose  was  over  the  ofticers 
personally,  and  not  over  the  corporation  ;  hence  it 
was  error  in  the  court  below  to  appoint  a  receiver 
and  decree  a  sale  of  the  property  and  a  settle- 
ment of  the  affairs  of  the  corporation. 

7.  Subd.  -6.  Courts  of  equity  liave  the  author- 
ity to  appoint  receivers,  and  may  order  them  to 
take  possession  of  the  property  in  controversy, 
whether  in  the  immediate  possession  of  the  de- 
fendant or  his  agents;  and  in  proper  cases  they 
can  also  order  the  defendant's  agents  or  em- 
ployees, although  not  parties  to  the  record,  to  de- 
liver the  specific  properly  to  the  receiver.  Ex  parte 
Cohen,  5  Cal.  494.  Where  the  allegations  of  a 
bill  are  general  in  their  nature,  and  the  equities 
are  fully  denied  by  the  answer,  such  a  case  is  not 
presented  as  will  authorize  the  appointment  of 
a  receiver,  the  withdrawal  of  the  property  from 
the  hands  of  one  acquainted  with  all  the  affairs 
of  the  concern,  and  placing  it  in  the  hands  of  an- 
other, who  may  not  be  equally  competent  to  man- 
age the  business.  Williamson  v.  Monroe,  3  Cal. 
385. 

8.  Generally.  Where  it  appears  that  the  part- 
ners, parties  to  the  suit  for  a  dissolution,  held  a 
judgment  against  a  third  party,  which  was  never 
reduced  to  the  possession  nor  under  the  control 
of  the  receiver,  it  was  held,  that  the  appointment 
of  the  receiver  did  not  operate  as  an  assignment, 
nor  transfer  any  property  not  so  reduced  to  pos- 
session witliin  a  reasonable  time.  Money  in  the 
hands  of  a  receiver  is  in  custodia  legis.  Ad.inis 
V.  Woods,  8  Cal.  306.  The  transfer  to  a  receiver, 
by  order  of  court,  of  the  effects  of  an  insolvent, 
in  the  suit  of  a  judgment  creditor,  is  not  an  as- 
signment absolutely  void  -ander  the  Insolvent  Act 
of  1852,  but  is  only  void  against  the  claim  of 
creditors.  Naglee  v.  Lyman,  14  Cal.  450.  The 
pendency  of  a  motion  for  a  new  trial  does  not 
operate  as  a  stay  of  proceedings,  so  as  to  deprive 
the  court  of  the  right  to  vacate  an  order  appoint- 
ing a  receiver,  made  before  the  trial.  But  where 
a  receiver  has  been  appointed,  and,  on  the  trial, 
judgment  of  nonsuit  is  rendered  against  the  party 
at  whose  instance  the  receiver  was  appointed,  a 
motion  for  a  new  trial  suspends  the  operation  of 
the  judgment  so  as  to  prevent  it  from  operating 
as  a  discharge  of  the  action,  unless  an  order  is 
made  discharging  the  receiver.  Copper  Hill  M. 
Co.  V.  Spencer,  25  Cal.  15. 


Dissolution. 

1.  Involuntary.    Civ.  Code,  §§  399,400;  post, 
§§  802    et   seq. 

2.  Voluntary.    Post,  §§  1227  et  seq. 

Xegislation  §  565.    1.  Enacted  March  11,  1873; 


based  on  Stats.  1850,  p.  347,  §§  16,  18,  and  Stats. 
1862,  p.   199,  !§  25. 

3.  Amended  by  Code  Amdts.  18SO.  p.  4, 
changing  tlie  word  "district"  to  "superior,"  be- 
fore "court  of  the  county." 


§566 


RECEIVERS. 


592 


Who  may  have  receiver  appointed.  A 
receiver  of  a  dissolved  corporation  may 
be  appointed,  only  when  necessary  for  the 
purpose  of  preserving  and  distributing  the 
property,  and  only  upon  the  application 
of  a  party  in  interest,  namely,  a  creditor 
or  a  stockholder  (Havemeyer  v.  Superior 
Court,  84  Cal.  327;  18  Am.  St.  Rep.  192; 
10  L.  E.  A.  627;  24  Pac.  121);  and  can 
neither  be  invoked  at  the  instance  of  a 
stranger,  nor  assumed  by  the  court  of  its 
own  motion.  State  Investment  etc.  Co.  v. 
Superior  Court.  101  Cal.  135;  35  Pac.  549. 
Where  the  affairs  of  a  defunct  corpora- 
tion are  under  the  control  of  its  late  di- 
rectors as  trustees  for  its  creditors  and 
stockholders,  the  creditors  have  nothing  to 
do  but  present  their  demands  and  receive 
payment  in  the  ordinary  course  of  busi- 
ness, or,  if  payment  is  refused  or  delayed, 
they  may  proceed  to  enforce  their  de- 
mands; and  it  is  always  at  the  option  of 
the  creditors  or  stockholders  to  have  a 
receiver,  if  they  can  allege  facts  showing 
that  one  is  necessary.  Havemeyer  v.  Su- 
perior Court,  84  Cal.  327;  18  Am.  St.  Eep. 
192;  10  L.  E.  A.  62j  ;  24  Pac.  121. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1850, 
p.    347,    §§16,    18;    Stats.    1862,    p.    199,    §23. 


Scope  of  section.  This  section  does  not 
authorize  the  appointment  of  a  receiver 
upon  the  ground  that  the  corporation  is 
not  prosperous,  or  because  its  liabilities 
are  greater  than  its  assets,  but  only  upon 
the  dissolution  of  the  corporation  (Murray 
v.  Superior  Court,  129  Cal.  628;  62  Pac. 
191);  nor  has  the  court  power,  under  this 
section,  to  appoint  a  receiver,  from  the 
fact  that  a  fine  was  imposed  upon  the  cor- 
poration, payable  to  the  people  of  the 
state,  making  the  state  a  creditor  of  the 
corporation  (Yore  v.  Superior  Court,  108 
Cal.  431;  41  Pac.  477);  nor  does  this  sec- 
tion confer  upon  the  court  any  authority 
to  take  charge  of  the  management  of  the 
affairs  of  a  corporation,  in  an  action  by 
the  state  against  a  corj^oration  for  its  dis- 
solution, or  to  assume  the  disposition  of 
the  effects  of  the  corporation,  winding  up 
its  affairs;  nor  has  the  court  authority 
to  appoint  a  receiver  pendente  lite:  upon 
the  entry  of  a  judgment  of  dissolution, 
the  functions  of  the  court  are  at  an  end. 
State  Investment  etc.  Co.  v.  Superior 
Court,  101  Cal.  135;  35  Pac.  549. 

Effect  of  dissolution.  The  dissolution  of 
a  corporation  leads  practically  to  a  wind- 
ing up  of  its  business.  People  v.  Superior 
Court,  100  Cal.  105;  34  Pac.  492. 

§  566.  Receiver,  restrictions  on  appointment.  Ex  parte  application, 
undertaking  on.  No  party,  or  attorney  of  a  party,  or  person  interested  in 
an  action,  or  related  to  any  judge  of  the  court  by  consanguinity  or  affinity 
within  the  third  degree,  can  be  appointed  receiver  therein  vrithout  the  v^rit- 
ten  consent  of  the  parties,  filed  v>nth  the  clerk.  If  a  receiver  is  appointed 
upon  an  ex  parte  application,  the  court,  before  making  the  order,  must  re- 
quire from  the  applicant  an  undertaking,  Avith  sufficient  sureties,  in  an 
amount  to  be  fixed  by  the  court,  to  the  effect  that  the  applicant  will  pay  to 
the  defendant  all  damages  he  may  sustain  by  reason  of  the  appointment  of 
such  receiver  and  the  entry  by  him  upon  his  duties,  in  case  the  applicant 
shall  have  procured  such  appointment  wrongfully,  maliciously,  or  without 
sufficient  cause ;  and  the  court  may,  in  its  discretion,  at  any  time  after  said 
appointment,  require  an  additional  undertaking. 

of  a  receiver  upon  an  ex  parte  applica- 
tion (Eeal  Estate  Associates  v.  Superior 
Court,  60  Cal.  223);  and  an  undertaking 
is  required  of  the  applicant,  only  when  the 
appointment  is  asked  for  ex  parte  (E'meric 
v.  Alvarado,  64  Cal.  529;  2  Pac.  418);  and 
the  appointment  is  void,  where  the  court 
has  failed  to  require  the  undertaking  from 
the  applicant  before  making  the  order. 
Davila  V.  Heath,  13  Cal.  App.  370;  109 
Pac.  893;  Bibby  v.  Dieter,  15  Cal.  App.  45; 
113  Pac.  874.  The  undertaking  required 
under  this  section,  where  the  application 
is  made  ex  parte,  must  run  in  favor  of 
each  defendant  in  the  action,  and  be  in 
such  form  that  any  defendant  shall  have 
a  right  of  action  thereon  if  he  is  injured 
by  the  appointment;  and  on  appeal,  it  will 
be  presumed  that  persons  purporting  to 
act   as   the   agents    of   a   surety   company^ 


Legislation  §  566.  1.  Enacted  March  11,  1873, 
and  then  contained  only  two  lines,  "No  party  or 
attorney,  or  person  interested  in  an  action,  can 
be  appointed  receiver  therein." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  309, 
adding  the  rest  of  the  section  after  the  words 
receiver  therein,"  except  for  the  changes  noted 
infra. 

3.  Amended  by  Stats.  1897.  p.  60,  adding 
the  words  'or  related  to  any  judge  of  the  court 
by  consanguinity  or  affinity  within  the  third  de- 
gree,    in  the  first  sentence. 

4.  Amendment  by  Stats.  1901,  p  142-  un- 
constitutional.     Sec  note  a!ite,  §  5.  ' 

5.  Amended  by  Stats.  1907,  p.  710,  (1)  add- 
ing the  words  "of  a  party,"  in  the  first  line  (2) 
changing  the  word  "be"  to  "is,"  after  "If  a 
receiver,"    and    (3)    changing  the  word   "may"    to 

"must,"  before  "require"  ;  the  code  cnmraissioner 
saying  of  the  first  and  third  changes,  "Such 
changes  having  been  made  to  conform  to  [sic] 
the  Kortion  to  the  intent  of  the  legislature  in  the 
passag'-  of  the  original  hertion." 

Ex      parte      application.      Undertaking. 

This    section    recognizes    the    appointment 


593 


OATH    AND   UNDERTAKING POWERS. 


§§567,568 


in  the  execution  of  such  undertalunff,  sufli-  CODE    COMMISSIONERS'    NOTE.     A    person 

ciently  established  their  authority  by  evi-  '^''[^"'d  ""t  l^e  app'/inipd  reciver,  who,  by  his  own 

,           •'                 i     1    i       ii        i    •    1              i.       rn-ii  '"^''   Stands  HI   ail  iniproptT  relation   to   the  actimi. 

deuce   presented   to   the   trial   court,     title  .smith  v.  New  York  Con.  stage  Co..  2a  How.  Pr. 

Insurance   etc.   Co.   v.   California   Develop-  208;  18  Abb.  Pr.  419. 
meut  Co.,  1G4  Cal.  58;  127  Pac.  502. 

§  567.  Oath  and  undertaking  of  receiver.  Before  entering  upon  his 
duties,  the  receiver  must  be  SAVorn  to  perform  them  faithfully,  and  witli  two 
or  more  sureties,  approved  by  the  court  or  judge,  execute  an  undertaking  to 
the  state  of  California,  in  such  sum  as  the  court  or  judge  may  direct,  to  the 
effect  that  he  will  faithfully  discharge  the  duties  of  receiver  in  the  action 
and  obey  the  orders  of  the  court  therein. 

sppcting  sureties,  and  the  undertaking  with  re- 
ppert  to  form  is  left  subject  to  the  control  of 
§  982  of  the  Political  Code."' 

Liability  of  sureties.  The  sureties  of  a 
receiver  merely  undertake  that  he  will 
faithfully  execute  the  orders  of  the  court; 
and  if  the  receiver  obeys  such  orders,  the 
sureties  are  exonerated.  Ilavemeyer  v. 
Superior  Court,  8i  Cal.  327;  18  Am.  St. 
Eep.  192;  10  L.  K.  A.  627;  24  Pac.  121. 


Undertakings,  generally.  See  post,  §941;  Pol. 
Code,  §§981,    947-98<;,   982. 

Legislation  §  567.  1.  Enacted  March  11,  1872, 
and  tlicn  liad  (1)  thi'  word  "one"  instead  of 
"two,"  before  "or  more  sureties,"  and  (2)  the 
words  "such  person,  and"  instead  of  "the  state 
of  California." 

3.  Amendment  by  Stats.  1901,  p.  142;  un- 
constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907.  p.  710;  the  code 
commissioner  saying,  "The  word  [one'  is  changed 
to  'two,'  thus  requiring  two  sureties,  and  making 
it  uniform  with   other  provisions  of  this  code  re- 

§  568.  Powers  of  receivers.  The  receiver  has,  under  the  control  of  the 
court,  power  to  bring  and  defend  actions  in  his  own  name,  as  receiver;  to 
take  and  keep  possession  of  the  property,  to  receive  rents,  collect  debts,  to 
compound  for  and  compromise  the  same,  to  make  transfers,  and  generally 
to  do  such  acts  respecting  the  property  as  the  court  may  authorize. 

Legislation  §  568.     Enacted  March  11,  1873.  dated   Piedmont    Cable   Co.,   117    Cal.    237r 


Scope  of  section.  It  was  not  intended 
by  §  564,  ante,  to  create  a  new  lien  by  the 
mere  appointment  of  a  receiver  in  an  ac- 
tion to  foreclose  a  mortgage.  Locke  v. 
Klunker,  123  Cal.  231;  55  Pac.  993. 

Power  of  receiver.  A  receiver  appointed 
to  keep,  and  care  for,  and  dispose  of  prop- 
erty until  the  appointment  of  an  assignee, 
has  no  further  powers,  save  that  he  may 
sue  and  be  sued  in  his  own  name,  collect 
debts,  and  do  such  other  acts  respecting 
the  property  as  the  court  may  direct;  but 
he  is  not  authorized  to  bring  suits  not  con- 
nected with  his  receivership,  and  necessary 
for  him  to  perform  its  functions,  nor  to 
sue  in  his  own  name  for  property  which 
has  not  come  into  his  possession.  Tibbets 
V.  Cohn,  116  Cal.  365;  48  Pac.  372.  A 
receiver  can,  with  the  permission  of  the 
court,  do  anything  the  court  may  do  to 
make  the  most  out  of  the  assets  in  his 
hands;  thus,  he  may  settle  disputed  claims, 
compromise  with  debtors,  lease  and  oper- 
ate other  property,  and  complete  unfin- 
ished work.  Pacific  Ev.  Co.  v.  Wade,  91 
Cal.  449;  25  Am.  St.  Rep.  201;  13  L.  R.  A. 
754;  27  Pac.  768.  A  receiver,  appointed 
only  to  take  possession  of  a  mortgaged 
street-railway,  and  operate  the  same,  has 
no  authority  to  collect  debts  due  to  the 
defendant  before  his  appointment,  and 
mingle  the  funds  thus  received  with  those 
received  in  the  course  of  his  receivership. 
California  Title  Ins.  etc.  Co.  v.  Consoli- 
1  Fair.— 38 


49  Pac.  1.  The  receiver  of  a  mortgaged 
field  has  no  right  to  cut  timber  from  other 
land  of  the  mortgagor,  in  order  to  build 
fences  or  houses  on  the  tract  covered  by 
the  mortgage,  although  it  might  benefit  the 
mortgagor.  Staples  v.  May,  87  Cal.  178; 
25  Pac.  346.  The  receiver  of  an  insolvent 
corporation  is  not  bound  to  perform  any 
of  the  contracts  of  the  company,  unless  it 
is  to  the  interest  of  creditors,  or  unless 
required  by  order  of  court;  but  delivery 
of  water  for  irrigation  under  a  contract 
of  the  company,  is  proper,  where  the  re- 
ceiver is  the  only  person  who  can  do  so 
(Russ  Lumber  etc.  Co.  v.  Muscupiabe  etc. 
Water  Co.,  120  Cal.  521;  65  Am.  St.  Rep. 
186;  52  Pac.  995);  and  the  receiver  may 
carry  out  to  completion  a  special  contract, 
necessary  in  the  dissolution  of  a  partner- 
ship, when  in  the  interests  of  and  with  the 
consent  of  the  partners.  Roehat  v.  Gee, 
137  Cal.  497;  70  Pac.  478.  A  receiver,  ap- 
pointed in  a  foreclosure  suit  against  a 
deceased  mortgagor,  is  not  a  pulilic  officer, 
charged  with  a  trust  as  such  officer,  and  he 
may  act  as  agent  for  the  sale  of  the  note 
and  mortgage,  and  make  a  valid  contract, 
where  the  jiurchasers  are  not  misled  and 
the  creditors  of  the  deceased  mortgagor 
do  not  comjilain.  De  Jarnatt  v.  Peake,  123 
Cal.  607;  56  Pac.  467. 

Order  appointing  receiver.  The  mcro 
appointment  of  a  receiver  is  not  a  deter- 
mination of  what  the  court  shall  order  him. 


§568 


RECEIVEES. 


594 


to  do;  and  to  compel  a  person  to  make 
certain  payments  to  the  receiver  is  as 
much  in  the  discretion  of  the  court  as  the 
appointment  of  the  receiver.  Bank  of 
Woodland  v.  Heron,  120  Cal.  614;  52  Pac. 
1006.  The  appointment  of  a  receiver  is 
merely  ancillary,  where  he  is  appointed 
before  judgment  to  protect,  pending  liti- 
gation, the  property  in  litigation,  and  in 
this  case  neither  his  functions  nor  the 
power  of  the  court  to  remove  or  control 
him  are  suspended  by  an  appeal;  but  the 
appointment  of  a  receiver  is  not  ancillary, 
where  he  is  appointed  after  judgment  to 
carry  it  into  effect,  as  in  the  case  of  his 
appointment  to  sell  mortgaged  premises 
under  a  decree  of  foreclosure,  when  his 
proceedings  are  suspended  by  an  appeal. 
Havemeyer  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Eep.  192;  10  L.  E.  A.  627;  24 
Pac.  121.  The  appointment  is  classed  in 
our  statutes  as  a  provisional  remedy,  and 
is  sometimes  styled  an  equitable  execution 
before  judgment;  and  where  the  appoint- 
ment is  made  after  judgment,  the  func- 
tions of  the  receiver,  either  for  the  purpose 
of  carrying  the  judgment  into  effect  or  for 
its  preservation  until  execution  thereof, 
are  limited  to  the  property  described  in 
the  judgment.  Kreling  v.  Kreling,  118  Cal. 
421;  50  Pac.  549.  Usually,  a  court  will 
not  appoint  a  receiver  to  carry  on  a  busi- 
ness permanently;  but  it  is  not  unusual 
or  erroneous  to  authorize  him  to  do  so  tem- 
porarily, where  the  interests  of  the  par- 
ties require  it.  Eochat  v.  Gee,  137  Cal. 
497;  70  Pac.  478.  Where  a  receiver  was 
appointed  to  take  possession  of  and  to 
operate  a  street-railway,  the  court  may 
enter  orders  authorizing  and  directing  the 
issuance  of  receiver's  certificates,  and  pro- 
viding that  such  certificates  shall  be  a  first 
lieu  upon  the  property  in  the  hands  of 
the  receiver.  Illinois  Trust  etc.  Bank  v. 
Pacific  Ey.  Co.,  115  Cal.  285;  47  Pac.  60. 
A  direction,  in  a  judgment,  that,  after  the 
confirmation  of  a  sale,  the  receiver  shall 
execute  a  deed,  will  not  be  assumed  to  im- 
port that  he  shall  execute  it  before  he  is 
authorized  by  law  so  to  do,  and  such  direc- 
tion is  not  available  to  a  judgment  debtor, 
on  appeal,  for  the  purpose  of  impairing 
the  sufl[iciency  of  the  judgment  directing 
the  sale.  Woodbury  v.  Nevada  Southern 
Ey.  Co.,  120  Cal.  463;  52  Pac.  730.  As 
against  a  collateral  attack  upon  an  order 
appointing  a  receiver,  if  the  jurisdiction 
of  the  court  can  be  upheld  and  its  action 
valiilated,  this  will  be  done,  even  though 
the  facts  showing  such  jurisdiction  are  de- 
fectively stated  and  inferences  must  be 
indulged  in  to  support  the  judgment.  Illi- 
nois Trust  etc.  Bank  v.  Pacific  Ey.  Co.,  115 
Cal.  285;  47  Pac.  60.  Where  a  judgment 
directed  the  defendant  to  satisfy  a  claim 
within  a  specified  time,  and,  in  default 
thereof,  that  certain  real  estate  should 
be   sold   and   the  2'roceeds   ai)plied   on   the 


judgment,  and  in  case  of  a  deficiency, 
that  judgment  should  be  docketed  there- 
for against  the  defendant,  the  court  has 
no  jurisdiction  to  appoint  a  receiver  to 
take  charge  of  any  other  property  than 
that  described  in  the  judgment.  Kreling 
v.  Kreling,  118  Cal.  421;  50  Pac.  549.  An 
action  against  a  corporation  upon  a  note 
is  an  action  at  law,  and  the  appointment 
of  a  receiver  in  such  a  case  is  unauthor- 
ized and  void,  although  the  corporation 
assents  to  the  appointment,  and  the  com- 
plaint alleges  that  it  is  insolvent  and  that 
other  creditors  are  threatening  to  sue  it, 
that  it  has  no  property  to  respond  to  the 
judgment,  and  that  the  action  is  brought 
in  behalf  of  the  plaintiff  and  other  credi- 
tors. Smith  V.  Superior  Court,  97  Cal.  348; 
32  Pac.  322;  and  see  Grant  v.  Los  Angeles 
etc.  Ey.  Co.,  116  Cal.  71;  47  Pac.  872. 

Suits  by  receivers.  This  section  clears 
the  way  of  all  former  niceties  as  to  the 
questions  whether  a  receiver  could  sue  in 
his  own  name,  and  whether  he  could  re- 
cover property  which  had  not  once  been 
in  his  actual  possession;  and  in  Eeal  Es- 
tate Associates  v.  Superior  Court,  60  Cal. 
223,  the  power  of  a  receiver  to  maintain 
necessary  actions  in  insolvent  cases  is  ex- 
pjressly  recognized.  Dennery  v.  Superior 
Court,  84  Cal.  7;  24  Pac.  147.  A  receiver 
in  insolvency  proceedings  may  maintain 
all  actions  necessary  to  preserve  any  prop- 
erty which  comes  into  his  possession  (Tib- 
bets  V.  Cohn,  116  Cal.  365;  48  Pac.  372); 
and  he  is  expressly  authorized,  or  directed, 
to  sue  for  the  recovery  of  goods  fraudu- 
lently transferred  by  the  insolvent,  after 
demand  and  refusal  (Tapscott  v.  Lyon, 
103  Cal.  297;  37  Pac.  225);  and  he  may 
bring  an  action  for  the  conversion  of  prop- 
erty during  his  receivership,  and  must  al- 
lege  therein  that  his  insolvent  was  the 
owner  or  entitled  to  the  possession  of  the 
property,  and  that  there  has  been  a  de- 
mand and  refusal.  Daggett  v.  Gray,  5  Cal. 
Unrep.  74;  40  Pac.  959.  A  receiver  can- 
not sue  to  recover  property  which  has  not 
come  into  his  possession,  or  which  should 
have  been  delivered  to  him;  he  cannot 
maintain  trover  for  property  of  the  insol- 
vent converted  before  the  adjudication,  or 
to  recover  property  transferred  b}'  the 
debtor  in  fraud  of  his  creditors  (Tibbets 
V.  Cohn,  116  Cal.  365;  48  Pac.  372);  nor 
can  he  maintain  an  action  of  replevin,  in 
an  action  of  foreclosure,  to  recover  the 
possession  of  personal  property,  not  taken 
from  his  possession,  but  held  by  the  sheriff 
under  a  writ  of  attachment,  and  in  the 
possession  of  the  receiver  merely  as  a  care- 
taker for  the  sheriff.  Bishop  v.  McKilli- 
can,  124  Cal.  321;  71  Am.  St.  Eep.  68;  57 
Pac.  76.  An  action  brought  by  a  receiver 
to  set  aside  judgments  obtained  by  fraud 
is  proper;  but  he  should  resort  to  the  usual 
means  of  an  injunction,  and  give  other 
security    to    indemnify    creditors    if    they 


595 


SUITS  BY  AND  AGAINST  RECEIVERS. 


568 


should  ultimately  establish  the  validity  of 
their  claims.  Petaluma  Sav.  Bank  v.  Su- 
perior Court,  111  Cal.  48S;  44  Pac.  177.  A 
receiver,  appointed  in  a  foreclosure  suit,  is 
not  a  public  officer,  charged  with  a  trust 
as  such  officer;  and  where  he  acts  as  an 
agent  for  the  sale  of  the  mortgaged  prem- 
ises, and  a  check  is  given  by  the  pur- 
chasers in  payment  of  the  purchase  price, 
le  may  maintain  an  action  against  the 
makers  upon  stoppage  of  payment.  De  Jar- 
natt  v.  Peake,  123  Cal.  ti07;  56  Pac.  4(J7. 
A  foreign  receiver  cannot  sue  in  another 
state;  but,  on  the  ground  of  comity,  courts 
will,  where  the  good  of  a  large  number 
demands  it,  permit  such  suits  to  be  main- 
tained, and  recognize  orders  and  judg- 
ments of  courts  of  sister  states;  but  such 
right  to  sue  is  not  conceded,  nor  a  suit 
permitted  to  be  maintained  by  a  foreign 
receiver,  where  the  claim  conflicts  with 
the  rights  of  citizens  or  creditors  in  the 
state  where  suit  is  brought.  Humphreys  v. 
Hopkins,  81  Cal.  551;  15  Am.  St.  Rep.  76; 
•6  L.  R.  A.  792;  22  Pac.  892;  Ward  v.  Pa- 
cific Mut.  Life  Ins.  Co.,  135  Cal.  235;  67 
Pac.  124;  and  see  Lackmann  v.  Supreme 
Council,  142  Cal.  22;  75  Pac.  583.  A  re- 
ceiver appointed  in  another  state,  presuma- 
bly wdthout  the  assent  of  other  creditors 
in  this  state,  who  are  not  parties  to  the 
action,  cannot  represent  such  creditors  in 
a  suit  between  the  receiver  and  a  domestic 
attaching  creditor.  Lackmann  v.  Supreme 
Council,  142  Cal.  22;  75  Pac.  583.  An  ac- 
tion by  a  foreign  receiver  cannot  be  main- 
tained here  against  a  domestic  creditor 
claiming  the  same  fund,  situated  here,  of 
-an  insolvent  foreign  corporation,  sought  to 
be  appropriated  by  the  receiver  of  such 
corporation.  Ward  v.  Pacific  Mut.  Life 
Ins.  Co.,  135  Cal.  235;  67  Pac.  124.  Xo 
rule  of  state  comity  or  law  requires  the 
rights  of  a  domestic  attaching  creditor  to 
be  set  aside  in  deference  to  a  foreign  re- 
ceiver claiming  under  the  laws  of  another 
state.  Lackmann  v.  Supreme  Council,  142 
Cal.  22;  75  Pac.  583. 

Suits  against  receivers.  Courts  of  equity 
will  not  permit  their  receivers  to  be  sued, 
or  property  in  their  possession  to  be  seized 
or  sold,  without  leave  asked  and  granted; 
but,  since  the  refusal  of  leave  to  sue  in 
other  tribunals,  or  to  enforce  the  judg- 
ments of  other  courts,  would,  in  many 
cases,  destroy  or  impair  rights  which  the 
court  appointing  the  receiver  has  no  power 
to  conserve,  it  is  the  boast  of  such  courts 
that  they  never  refuse  leave  in  a  proper 
case.  Petaluma  Sav.  Bank  v.  Superior 
Court,  111  Cal.  488;  44  Pac.  177.  It  is 
-contrary  to  the  established  doctrine  of 
-courts  of  equity  to  permit  a  receiver  to 
be  made  a  party  defendant,  unless  by  con- 
sent of  court:  this  is  for  the  protection 
■of  receivers  against  unnecessary  litigation, 
•because  relief  can  be  obtained  on  motion 
Jio  the  court  making  the  appointment;  but 


such  action  may  be  justified,  where  the 
rights  of  the  parties  or  of  the  receiver 
will  not  be  injuriously  affected  by  the 
decree,  and  wliere  the  decree  specially  re- 
serves all  rights  of  the  receiver.  Murray 
V.  Etchepare,  132  Cal.  286;  64  Pac.  282. 
A  suit,  by  permission,  can  always  be 
brought  against  a  receiver,  to  present 
claims  against  him  in  his  official  capacity, 
on  such  terms  as  will  jirotect  him,  while 
affording  full  opportunity  to  the  plaintiff 
to  test  his  right.  Tapscott  v.  Lyon,  103 
Cal.  297;  37  Pac.  225.  Whether  the  court 
will  permit,  upon  application,  an  inde- 
pendent suit  to  be  brought  relative  to  the 
property  in  the  hands  of  a  receiver,  or 
will  compel  intervention  in  the  proceed- 
ing in  which  the  receiver  is  appointed,  is 
a  matter  for  its  discretion;  and  when  it 
cannot  afford  the  same  relief  in  interven- 
tion as  the  claimant  would  be  entitled  to 
in  an  independent  action,  it  should  permit 
an  independent  suit.    De  Forrest  v.  Coffey, 

154  Cal.  444;  98  Pac.  27.  A  superior  court, 
having  jurisdiction  of  an  action  in  which 
a  receiver  of  an  insolvent  corporation  is 
appointed,  does  not  abuse  its  discretion 
in  denying  leave  to  sue  him  in  an  inde- 
pendent action.  De  Forrest  v.  Coffey,  154 
Cal.   444;   98  Pac.  27;   Auzerais  v.   Coffey, 

155  Cal.  102;  99  Pac.  1134.  The  claimant 
of  real  projierty,  under  title  adverse  to 
that  of  parties  represented  by  a  receiver 
in  an  action  to  foreclose  a  mortgage, 
should  be  granted  leave,  on  application,  to 
commence  an  action  of  ejectment,  in  order 
to  try  the  question  of  title.  Petaluma  Sav. 
Bank  v.  Superior  Court,  111  Cal.  488;  44 
Pac.  177.  A  mortgagee  should  not  be  re- 
quired to  satisfy  the  court,  in  appointing 
a  receiver,  of  the  validity  of  his  mort- 
gage, or  in  other  words,  to  litigate  the 
whole  question  of  the  mortgagor's  lia- 
bility, and  to  establish  it,  on  the  motion, 
as  a  condition  precedent  to  any  permis- 
sion to  sue  the  receiver  in  the  county 
where  the  land  is  situate;  for,  whenever 
the  court  appointing  a  receiver  cannot  pro- 
tect an  asserted  right  in  a  cause  before  it, 
the  party  will  be  allowed  to  proceed  in 
the  proper  forum  to  establish  his  right  if 
he  can,  and  to  enforce  it  by  appropriate 
means.  Petaluma  Sav.  Bank  v.  Superior 
Court,  111  Cal.  488;  44  Pac.  177.  A  judg- 
ment against  a  receiver,  final  because  of 
failure  to  appeal  therefrom  or  to  move  for 
a  new  trial,  cannot  be  enforced  by  execu- 
tion: it  is  against  the  receiver  in  his  offi- 
cial capacity,  and  operates  only  as  an 
established  claim  against  the  assets  in  his 
possession;  its  enforcement  is  a  matter  for 
the  determination  of  the  court  having  ju- 
risdiction of  the  receivership,  and  to  it 
application  must  be  made  for  its  pavment. 
Painter  v.  Painter,  138  Cal.  231;  94  Am. 
St.  Rep.  47;  71  Pac.  90.  The  rights  of 
creditors  are  statutory,  and  cannot  be  di- 
vested by   the   mere  volition   of  the  court 


§568 


RECEIVERS. 


596 


or  judge  in  refusing  leave  to  sue  a  re- 
ceiver; but  creditors  have  the  right  to  take 
such  proceedings  as  the  law  exacts  for 
preserving  or  enforcing  their  liens  accord- 
ing to  their  priority.  Petaluma  Sav.  Bank 
V.  Superior  Court,  111  Cal.  488;  44  Pac. 
177.  A  receiver  lawfully  in  possession  of 
property  by  direction  of  the  court,  and 
claimed'  to  belong  to  the  insolvent,  cannot 
be  held  personally  responsible  as  a  tres- 
passer, by  adverse  claimants,  upon  demand 
and  refusal  to  give  up  the  property.  Tap- 
scott  V.  Lyon,  103  Cal.  297;  37  Pac.  225. 
Where  a  receiver,  holding  by  a  valid  ap- 
pointment, containing  no  direction  in  ex- 
cess of  the  jurisdiction  of  the  court, 
attempts  to  take  property  lawfully  in  the 
possession  of  another,  and  to  which  he  is 
not  entitled,  he  may  be  resisted,  just  as 
any  other  trespasser  may  be  resisted,  and 
a  person  defending  his  lawful  possession 
is  not  thereby  brought  in  conflict  with 
the  court,  as  the  fault  is  that  of  the  re- 
ceiver alone;  and  if  he  gains  possession 
of  property  clairned  by  a  stranger,  the 
court  will  either  order  him  to  restore  it, 
or  permit  an  action  to  be  brought  against 
him  to  try  the  title.  Havemeyer  v.  Su- 
perior Court,  84  Cal.  327;  18  Am.  St.  Eep. 
192;  10  L.  E.  A.  627;  24  Pac.  121.  A  re- 
ceiver, being  the  legal  custodian  of  all  the 
books  of  a  corporation  defendant,  may  be 
made  a  party  defendant  to  an  application 
for  an  order  to  compel  the  entry  of  stock, 
in  the  transferee's  name,  upon  the  books 
of  the  defendant  corporation,  and  may  be 
commanded  to  make  the  proper  entry  of 
the  transfer  of  the  stock  upon  such  books. 
People  V.  California  Safe  Deposit  etc.  Co., 
18  Cal.  App.  732;  124  Pac.  558. 

Receipt  of  rents.  Where  a  receiver  col- 
lects and  preserves  rents,  there  is  no  neces- 
sit}'  for  a  specific  decree  declaring  such 
funds  to  be  the  property  of  the  party 
finally  recovering  possession  of  the  lands. 
Garniss  v.  Superior  Court,  88  Cal.  413;  26 
Pac.  351.  The  title  of  the  defendant  to 
the  rents  and  profits  of  land  under  fore- 
closure of  mortgage  is  in  no  way  affected 
by  the  possession  of  the  receiver.  Garret- 
son  Investment  Co.  v.  Arnot,  144  Cal.  64; 
77  Pac.  770. 

Compromise  claims  and  payment  of 
debts.  Ordinarily,  a  receiver  should  not 
pay  debts  without  a  previous  direction  of 
the  court;  but  the  general  rule  is  not  in- 
exorable, and,  where  the  order  of  appoint- 
ment is  not  broad  enough,  in  a  proper  case 
such  action  of  the  receiver  may  be  subse- 
quently sanctioned  by  the  court.  Eochat 
V.  Gee,  137  Cal.  497;   70  Pac.  478. 

Possession  and  care  of  property  by  re- 
ceiver. The  possession  of  property  by  a 
receiver,  pendente  lite,  does  not  affect  the 
title  to  the  property  (Tibbets  v.  Cohn,  116 
Cal.  365;  48  Pac.  372);  nor  does  a  mort- 
gagee acquire  any  new  or  additional  lien 
through    the    jtossession    of    the    receiver. 


Bank  of  Woodland  v.  Heron,  120  Cal.  614; 
52  Pac.  1006.  The  piroperty  of  a  corpora- 
tion in  the  hands  of  a  receiver  is  in  cus- 
todia  legis:  the  possession  of  the  receiver 
is  the  possession  of  the  court,  for  the  bene- 
fit of  all  parties  interested  (De  Forrest  v. 
Coffey,  154  Cal.  444;  98  Pac.  27);  and  no 
one  claiming  a  right  paramount  to  that 
of  the  receiver  can  assert  it  in  any  action 
without  the  permission  of  the  court;  no 
sale  can  take  pjlace,  no  debt  can  be  paid, 
no  contract  can  be  made,  without  its  sanc- 
tion. Pacific  Ey.  Co.  v.  W'ade,  91  Cal.  449; 
25  Am.  St.  Eep.  201;  13  L.  E.  A.  754;  27 
Pac.  768.  W'hat  the  receiver  does,  the 
court  does;  the  court,  therefore,  and  not 
the  receiver,  holds,  administers,  and  dis- 
poses of  the  property  in  the  hands  of  the 
receiver;  and,  as  long  as  it  is  undisposed 
of,  action  by  the  court  is  necessary.  Have- 
meyer v.  Superior  Court,  84  Cal.  327;  18 
Am.  St.  Eep.  192;  10  L.  E.  A.  627;  24  Pac. 
121.  The  receiver  is  the  oflSeer  or  repre- 
sentative of  the  court,  appointed  to  take 
charge  and  management  of  the  property 
which  is  the  subject  of  litigation  before 
it,  for  the  purpose  of  its  preservation 
and  ultimate  disposition  according  to  final 
judgment  therein;  and  as,  in  any  particu- 
lar action,  the  court  has  jurisdiction  over 
only  the  property  which  is  the  subject  of 
that  litigation,  that  is  the  only  property 
which  it  can  authorize  its  receiver  to  in- 
terfere with  or  take  into  its  possession. 
Kreling  v.  Kreling,  118  Cal.  421;  50  Pac. 
549.  Where  the  goods  are  described,  and 
are  in  the  possession  of  the  person  whose 
property  the  receiver  is  directed  to  take 
into  possession,  or  are  voluntarily  deliv- 
ered to  him  by  the  person  having  them, 
he  must  take  them,  on  penalty  of  incur- 
ring contempt,  and,  having  thus  taken 
them,  he  cannot  surrender  them  to  an  ad- 
verse claimant,  without  leave  of  the  court. 
Tapscott  V.  Lyon,  103  Cal.  297;  37  Pac. 
225.  The  receiver  is  under  the  control 
of  the  court,  as  is  the  property  of  which 
he  is  the  custodian,  and  while  the  court 
will  not  permit  any  interference  with  such 
property  without  its  leave,  neither  will  it 
withhold  such  property  from  one  who 
shows  that  he  is  entitled  to  it.  De  For- 
rest V.  Cotrey,  154  Cal.  444;  98  Pac.  27. 
Though  the  receiver  is  appointed  upon  the 
api'lication  of  one  of  the  parties  inter- 
ested in  the  property,  yet  his  holding  is 
not  merely  for  the  benefit  of  such  party, 
or  of  any  other  party:  it  is  the  holding 
of  the  court  for  the  equal  benefit  of  those 
finally  ailjudged  to  have  rights  in  it;  and 
when  the  rights  of  the  parties  are  estab- 
lished, the  receiver  is  considered  as  hold- 
ing for  the  benefit  of  the  parties  entitled 
to  the  property.  Garniss  v.  Superior  Court, 
88  Cal.  413;  26  Pac.  351;  Pacific  Railway 
Co.  V.  Wade,  91  Cal.  449;  25  Am.  St.  Rep. 
201;  27  Pac.  768.  The  holding  of  property 
by  the  receiver  differs  essentially  from  the 


597 


POSSESSION  AND  CARE  OF  PROPERTY. 


§568 


holding  of  property  under  attachment:  in 
the  latter  case,  the  law  itself  provides  that 
the  property  shall  be  disposed  of  to  satisfy 
the  judgment;  in  the  former,  there  is  no 
such  provision,  and  the  property  is  in  the 
liands  of  the  receiver,  to  be  disposed  of 
by  the  court  after  a  valid  atljudication. 
Garretson  Investment  Co.  v,  Arndt,  l-l-t 
Cal.  64;  77  Pac.  770.  Where  the  receiver 
is  lawfully  in  possession  of  property 
claimed  to  belong  to  his  insolvent,  even 
an  adverse  claimant  is  not  justified  in 
disturbing  his  possession  without  leave  of 
court;  nor  is  he  responsible  to  such  per- 
son in  an  action  for  the  value  of  the  prop- 
erty'; and,  having  no  right  to  deliver  it 
to  the  adverse  claimant  without  leave  of 
the  court,  he  cannot  be  held  responsible 
for  not  doing  so.  Tapscott  v.  Lyon,  103 
Cal.  297;  37  Pac.  225.  Such  discretion 
as  a  court  has  to  prevent  proceedings  by 
adverse  claimants  to  property  in  the  cus- 
tody of  a  receiver  appointed  by  it  is 
a  regulated  discretion,  which  cannot  be 
-abused.  Petaluma  Sav.  Bank  v.  Superior 
Court,  111  Cal.  488;  44  Pac.  177.  Where 
the  order  appointing  a  receiver  was  made 
ex  parte,  and  it  was  not  shown  that  any- 
thing connected  therewith  ever  came  to 
the  knowledge  of  the  corporation  defend- 
ant, and  it  was  insolvent,  and  seems  to 
have  left  its  creditors  to  get  what  they 
could  out  of  the  property,  without  objec- 
tion, the  presumption  is,  that  it-  desired 
its  property  to  go  to  its  creditors  accord- 
ing to  their  legal  rights.  Staples  v.  May, 
87  Cal.  178;  25  Pac.  346.  The  mere  order 
of  the  court  appointing  a  receiver  does 
not  constitute,  ipso  facto,  a  possession  of 
the  property,  independently  of  any  actual 
possession  of  the  receiver,  or  of  any  at- 
tempt by  him  to  take  possession;  and  an 
assignee  of  the  owner  of  a  crop,  who  took 
title  prior  to  the  taking  possession  thereof 
by  a  receiver  appointed  ex  parte  in  a  suit 
for  the  foreclosure  of  a  mortgage,  without 
knowledge  of  such  apjiointment,  is  entitled 
to  an  order  directing  the  receiver  to  de- 
liver the  crop  to  him,  rather  than  to  the 
mortgagee  plaintiff  in  the  foreclosure  suit. 
Bank  of  Woodland  v.  Herron,  120  Cal.  614; 
52  Pac.  1006.  The  receiver  cannot,  when 
appointed  for  any  proper  purpose,  be  em- 
powered to  take  possession  of  the  crops 
of  a  mortgagor  and  apply  them  to  the 
mortgage  debt,  nor,  having  taken  posses- 
sion, is  any  lien  thereby  acquired:  this 
would  be  to  give  a  lien  upon  property 
not  included  in  the  mortgage.  Locke  v, 
Klunker,  123  Cal.  231;  55  Pac.  993.  The 
receiver  is  not  required  to  place  himself 
in  the  position  of  a  wrong-doer,  and  neeil 
not  take  property  from  third  persons,  un- 
less under  an  express  order  to  that  effect: 
suit  should  be  brought  to  recover  prop- 
erty in  the  possession  of  adverse  claim- 
ants; but  where  the  property  is  legally 
and  properly  in  the  possession   of  the  re- 


ceiver, the  court  should  protect  that  pos- 
session, not  only  against  acts  of  violence, 
but  also  against  suits  at  law,  so  that  a 
third  person  claiming  the  property  may 
be  compelled  to  come  in  and  ask  to  be 
examined  pro  interesse  suo,  if  he  wishes 
to  test  the  justice  of  the  claim.  Tapscott 
v.  Lyon,  103  Cal.  297;  37  Pac.  225.  The 
title  of  the  defendant  to  the  rents  and 
jirofits  of  land  under  foreclosure  of  the 
mortgage  is  in  no  way  affected  by  the  pos- 
session of  the  receiver,  nor  can  he  be  di- 
vested of  it  otherwise  than  by  a  valid 
adjudication;  and  where  there  is  neither 
allegation  nor  prayer  to  justify  the  adju- 
dication, it  is  incompetent  for  the  court 
so  to  adjudge.  Garretson  Investment  Co. 
V.  Arndt,  144  Cal.  64;  77  Pac.  770.  A  re- 
ceiver appointed  to  take  charge  of  the 
separate  proi)erty  of  a  husband  in  an  ac- 
tion for  divorce,  takes  the  property  subject 
to  all  prior  liens  and  encumbrances.  Peta- 
luma Sav.  Bank  v.  Superior  Court,  111  Cal. 
488;  44  Pac.  177.  The  receiver  has  no 
authority  to  take  property  from  the  pos- 
session of  strangers,  who  claim  in  good 
faith  as  absolute  owners  in  their  own 
right.  Havemeyer  v.  Superior  Court,  84 
Cal.  327;  18  Am.  St.  Rep.  192;  10  L.  R.  A. 
627;  24  Pac.  121.  Where  a  judgment 
debtor  has  property  which  cannot  be 
reached  by  execution,  and  which  he  re- 
fuses to  apply  to  the  satisfaction  of  the 
judgment,  he  may  be  compelled,  in  pro- 
ceedings supplementary  to  execution,  to 
deliver  it  to  a  receiver  appointed  to  dis- 
pose of  it  in  aid  of  the  execution.  Pacific 
Bank  v.  Robinson,  57  Cal.  520;  40  Am. 
Rep.  120;  Matteson  v.  Conley,  144  Cal. 
483.  Patent  rights,  assignable  by  the  vol- 
untary act  of  the  owner,  and  by  act  and 
operation  of  law,  can  be  ordered  assigned 
to  the  receiver,  to  be  sold  and  applied  to 
the  satisfaction  of  a  judgment.  Pacific 
Bank  v.  Robinson,  57  Cal.  520;  40  Am. 
Rep.  120.  The  court  cannot  direct  a  re- 
ceiver to  take  charge  of  any  other  or  ad- 
ditional property  than  that  described  in 
the  judgment  (Kreling  v.  Kreling,  118  Cal. 
421;  50  Pac.  549);  nor  can  it  confer  color 
of  authority  upon  a  receiver  to  extract 
ores  from  lands  not  covered  by  the  se- 
curities involved  in  the  suit,  although  it 
might  enhance  the  value  of  such  securities 
(Staples  v.  May,  87  Cal.  178;  25  Pac.  346); 
nor  has  the  court  jurisdiction,  after  the 
entry  of  a  money  judgment,  to  continue 
the  receiver  for  the  purpose  of  enforcing 
the  judgment,  where  he  had  not  taken 
possession  of  any  property  before  the 
judgment.  White 'v.  White,'l30  Cal.  597; 
80  Am.  St.  Rep.  150;  62  Pac.  1062.  When 
the  bill  upon  which  the  appointment  of 
a  receiver  was  made  is  dismissed  on  de- 
murrer, it  is  the  duty  of  the  court  to 
direct  the  receiver  to  restore  the  prop- 
erty to  the  person  from  whom  it  was 
taken.     Baughman    v.    Superior    Court,    72 


§568 


RECEIVERS. 


598 


Cal.  572;  14  Pac.  207.  There  is  no  injus- 
tice in  requiring  a  receiver  to  put  back 
into  a  fund,  where  it  belongs,  a  sum  of 
money  to  which  he  has  never  had  any 
right.  Staples  v.  May,  87  Cal.  178;  25 
Pac.  346.  Where,  upon  false  allegations 
in  a  pleading,  the  court  appoints  a  re- 
ceiver, and,  at  the  trial,  judgment  is 
entered  for  the  defendant,  an  order  direct- 
ing the  receiver  to  turn  the  property  over 
to  the  defendant  is  proper.  Loftus  v. 
Fischer,  117  Cal.  128;  48  Pac.  1030.  The 
receiver  may  apply  to  the  court  for  in- 
struction and  authority,  from  time  to 
time,  and  in  the  order  appointing  him  he 
may  be  directed  to  apply  for  instructions 
when  necessary:  he  is  but  the  hand  of  the 
court,  to  aid  in  managing  and  preserving 
the  property,  and  any  order  of  the  court 
may,  if  erroneous,  be  reviewed  on  appeal, 
after  final  judgment  has  been  rendered, 
or,  in  exceptional  cases,  after  settlement 
of  the  final  account  of  the  receiver.  Free 
Gold  Mining  Co.  v.  Spiers,  135  Cal.  130; 
67  Pac.  61.  An  order  for  the  direction  of 
the  receiver  is  in  the  discretion  of  the 
court,  and  requires  immediate  execution, 
to  be  of  any  avail;  but  the  interests  of 
all  parties  might  be  greatly  prejudiced  if 
every  order  of  the  court  in  connection 
with  property  in  its  custody  was  the  sub- 
ject of  a  direct  appeal;  any  errors  in  the 
order  should  be  reviewed  upon  an  appeal 
from  the  judgment.  Free  Gold  Mining  Co. 
V.  Spiers,  135  Cal.  130;  67  Pac.  61.  The 
filing  of  an  undertaking  on  appeal  from 
an  order  a:ppointing  a  receiver  operates 
as  a  supersedeas,  suspends  all  authority 
of  the  receiver  under  the  order,  withdraws 
from  him  the  right  to  the  control  and  pos- 
session of  the  property  involved,  and  re- 
stores the  same  to  the  pleading  party 
from  whom  it  had  been  taken.  Jacobs  v. 
Superior  Court,  133  Cal.  364;  85  Am.  St. 
Rep.  204;  65  Pac.  826.  Mere  possession, 
by  a  receiver  appointed  in  a  foreign  juris- 
diction, of  the  debtor's  property,  however 
lawful,  does  not  screen  it  from  attach- 
ment in  this  state:  to  show  a  right  superior 
to  that  of  creditors,  he  must  fall  back 
upon  the  order  appointing  him  receiver, 
and  must  depend  upon  the  comity  of  this 
state  as  to  the  effect  to  be  allowed  that 
order.  Humphrevs  v.  Hopkius,  81  Cal. 
551;  15  Am.  St.  Eep.  76;  6  L.  R.  A.  792; 
22  Pac.  892;  Ward  v.  Pacific  Mut.  Life 
Ins.  Co.,  135  Cal.  235;  67  Pac.  124;  Laek- 
mann  v.  Supreme  Council,  142  Cal.  22;  75 
Pac.  583.  Where  property  is  in  the  hands 
of  a  receiver  appointed  in  a  suit  to  cancel 
a  lease,  and  a  similar  suit  was  brought 
in  a  Federal  court  for  the  same  purpose, 
to  which  the  receiver  was  not  a  party, 
it  cannot  be  objected  to  that  court's  juris- 
diction that  the  property  is  in  the  hands 
of  such  receiver,  and  that  leave  had  not 
been  obtained  from  the  state  court  to  sue 
him.  Isom  v.  Rex  Crude  Oil  Co.,  147  Cal. 
663;  82  Pac.  319. 


Receiver's  certificates.  It  will  be  pre- 
sumed, in  support  of  a  judgment  holding; 
a  receiver's  certificates  valid,  that  every- 
thing necessary  to  authorize  the  court  to 
order  the  issue  of  such  certificates  was 
shown,  in  the  absence  of  evidence  to  the 
contrary.  Illinois  Trust  etc.  Bank  v.  Pa- 
cific Ey.  Co.,  115  Cal.  285;  47  Pac.  60. 

What  expenses  receiver  may  incur.  The 
appointment  of  a  receiver  implies  a  ma- 
terial diminution  of  the  fund  out  of  which 
creditors  are  to  be  paid,  and  from  which,  iit^ 
the  first  place,  the  fees  of  the  receiver,  his 
counsel  and  assistants,  are  to  be  subtracted. 
Havemever  v.  Superior  Court,  84  Cal.  327;^. 
18  Am.  St.  Rep.  192;  10  L.  R.  A.  627;  24- 
Pac.  121.  The  receiver  should  be  allowed 
reasonable  fees  for  counsel  employed  by 
him  in  the  proper  discharge  of  his  trusty 
the  costs  of  litigation,  and  the  expenses 
in  taking  care  of,  protecting,  and  repair- 
ing the  property  in  his  charge.  McLane 
V.  Placerville  etc.  R.  R.  Co.,  66  Cal.  606;, 
6  Pac.  748.  The  receiver  should  be  al- 
lowed reasonable  expenses  incurred  by 
him  in  the  harvesting  of  a  crop,  although, 
his  appointment  was  improper  (Locke  v. 
Klunker,  123  Cal.  231;  55  Pac.  993);  and. 
he  should  be  allowed  expenses  incurred  in- 
finishing  an  uncompleted  contract,  and 
paying  debts  incident  thereto,  in  winding- 
up  the  affairs  of  a  partnership.  Rochat  v.. 
Gee,  137  Cal.  497;  70  Pac.  478.  The  trus- 
tee and  receiver  of  a  railroad  corporation 
should  be  allowed  his  expenses,  reasonably 
incurred  in  the  discharge  of  his  trust,  and 
such  expenses  are  a  lien  upon  the  trust 
property,  prior  to  that  of  the  bondholders. 
McLane  v.  Placerville  etc.  R.  R.  Co.,  66 
Cal.  606;  6  Pac.  478.  Where,  under  cir- 
cumstances authorizing  such  action,  prop- 
erty is  taken  into  the  possession  of  the 
court,  through  a  receiver,  of  such  a  char- 
acter as  to  give  the  public  a  right  to  its- 
continued  operation  and  use,  the  court 
acquires  the  right  and  assumes  the  obliga- 
tion of  keeping  such  property  in  operation, 
and  is  authorized  to  incur  expense  and 
create  obligations  therefor  (Illinois  Trust 
etc.  Bank  v.  Pacific  Ry.  Co.,  115  Cal.  285  f 
47  Pac.  60) ;  and  the  receiver  is  justified, 
in  expending  money  for  the  purchase  of 
rolling-stock  and  machinery,  necessary  for 
the  operation  of  a  railroad.  McLane  v. 
Placerville  etc.  R.  R.  Co.,  66  Cal.  606;  6 
Pac.  478.  The  court  may  properly  direct 
a  receiver  to  pay  a  physician's  bill  for 
professional  services,  found  to  be  a  neces- 
sary item  of  maintenance,  and  being  the 
purpose  for  which  the  funds  were  in  the 
hands  of  the  receiver.  Murray  v.  Murrav^ 
115  Cal.  266;  56  Am.  St.  Rep.  97;  37 
L.  R.  A.  626;   47  Pac.  37. 

Compensation  and  reimbursement  of  re- 
ceiver. The  amount  of  compensation  and. 
expenses  allowed  a  receiver  is  properly 
costs  of  suit,  and  should  be  paid  in  pref- 
erence to  general  creditors.  Ephraim  v.. 
Pacific   Bank,   136   Cal.   646;   69   Pac.   436. 


599 


COMPENSATION,  ETC. — FINAL  ACCOUNT — DISCHARGE. 


§568 


Money  in  the  hands  of  a  receiver,  colloctcil 
by  him  under  his  order  of  appointment, 
is  subject  to  his  lien  upon  it  for  his  fees 
and  costs  of  receivership.  Garniss  v.  Su- 
perior Court,  88  Cal.  413;  26  Pac.  3.31.  The 
costs  of  a  receiverahii)  are  ]irimarily  a 
charcje  upon,  and  are  to  be  ]iaid  out  of, 
the  fund  in  his  possession;  but  it  is  by 
no  means  the  rule,  that  a  receiver  must 
in  all  cases  look  to  that  fund  alone  for 
his  reimluirsement,  and  that  he  has  no 
other  remedy  if  that  fund  is  not  avail- 
able; nor  is  it  necessary  that  the  order 
settling  the  receiver's  account  shall  de- 
termine what  party  is  liable  to  him  for 
his  expenses  and  compensation,  and  where, 
before  such  settlement,  the  suit  was  dis- 
missed by  the  ]ilaintiff,  at  whose  instance 
he  was  api)ointed,  he  may  maintain  an 
action  against  the  plaintiff  for  his  ex- 
penses and  compensation.  E[)hraim  v. 
Pacific  Bank,  129  Cal.  589;  62  Pac.  177. 
A  mortgagee  at  whose  instance  a  receiver 
is  appointed  in  an  action  for  the  foreclos- 
ure of  a  mortgage  is  answerable  for  the 
costs  of  the  receivership,  and  the  receiver 
has  a  preferred  lien  for  his  expenses  upon 
the  funds  and  estate  which  come  into  his 
hands.  Illinois  Trust  etc.  Bank  v.  Pacific 
Ey.  Co.,  99  Cal.  407;  33  Pac.  1132;  Fischer 
V.  Superior  Court,  110  Cal.  129;  42  Pac. 
561.  In  an  action  by  a  receiver  for  com- 
pensation, it  is  a  complete  defense  that 
he  was  appointed  at  his  own  request,  and 
that  he  agreed  to  look  entirely  to  the  in- 
come from  the  projjerty  for  compensation. 
Ephraim  v.  Pacific  Bank,  136  Cal.  646;  69 
Pac.  436.  An  order  fixing  the  compensa- 
tion of  a  receiver,  founded  on  an  abso- 
lutely void  order  of  appointment,  is  equally 
void.  Grant  v.  Los  Angeles  etc.  Ey.  Co., 
116  Cal.  71;  47  Pac.  872.  Where"  a  re- 
ceiver has  gained  possession  of  property 
through  an  irregular,  unauthorized  appoint- 
ment, or  if  the  property  belongs  to  a  third 
party,  and  is  taken  from  him  by  para- 
mount authority,  the  person  at  whose  in- 
stance he  was  appointed  is  liable  for  his 
compensation.  Ephraim  v.  Pacific  Bank, 
129  Cal.  589;  62  Pac.  177.  The  obligation 
to  compensate  a  receiver  appointed  under 
a  null  and  void  order  rests  upon  those 
who  sought  and  procured  his  appointment. 
Grant  v.  Los  Angeles  etc.  Ey.  Co.,  116 
Cal.  71;  47  Pac.  872.  An  order  fixing  the 
compensation  of  a  receiver,  and  taxing  it 
as  costs  as  against  all  the  parties,  and 
directing  the  receiver  to  apply  toward  its 
payment  the  balance  of  a  fund  in  his 
hands  as  such  receiver,  is  a  final  judgment 
in  a  collateral  matter,  and  is  appealable. 
Grant  v.  Los  Angeles  etc.  Ey.  Co.,  116 
Cal.  71;  47  Pac.  872.;  Grant  v.  Superior 
Court,  106  Cal.  324;  39  Pac.  604.  The 
statute  of  limitations  does  not  begin  to 
run  against  the  action  of  a  receiver  to 
recover  his  compensation,  until  his  account 
is  allowed  and  settled;  and  the  time  dur- 


ing which  an  appeal  from  an  order  of  al- 
lowance is  pending  suspends  the  running 
of  the  statute.  Ephraim  v.  Pacific  Bank, 
129  Cal.  589;  62  Par.  177. 

Settling  final  account.  The  court  has 
jurisdiction  to  settle  the  account  of  a  re- 
ceiver ajipointed  by  it  in  an  action, 
although  the  plaintiff  dismissed  the  action 
before  tlie  issuance  of  any  summons  or 
the  appearance  of  any  defendant.  Pacific 
Bank  v.  Madera  Fruit  etc.  Co.,  124  Cal. 
525;  57  Pac.  462.  A  receiver,  authorized 
to  manage,  control,  and  dispose  of  all  the 
proi>erty  of  a  partnership,  may  carry  out 
to  completion  a  special  contract,  and  the 
court  ma}"  properly  allow  all  his  expenses 
incurred  therein,  in  the  settlement  of  his 
final  account.  Eochat  v.  Gee,  137  Cal.  497; 
70  Pac.  478.  Formal  findings,  separate 
from  the  order  ai)proving  or  disapproving 
the  account  of  a  receiver,  are  not  neces- 
sary in  settling  the  final  account.  Eochat 
V.  Gee,  137  Cal.  497;  70  Pac.  478;  Estate 
of  McPhee,  156  Cal.  337;  104  Pac.  455. 
There  is  no  necessity  for  an  order  to  the 
receiver  to  surrender  property  upon  the 
settlement  of  his  final  account,  where 
the  property  was  originally  purchased  by 
the  partnership  from  the  receiver,  and 
they  never  paid  any  part  of  the  deferred 
purchase-money,  and  after  the  receiver 
paid  all  the  debts  and  completed  the  con- 
tract the  parties  to  the  action  took  no 
further  interest  in  the  property,  and  the 
action  was  dismissed,  and  no  claim  for 
any  settlement  with  the  receiver  was  de- 
manded for  nearlv  ten  years.  Eochat  v. 
Gee,  137  Cal.  497;  70  Pac.  478. 

Discharge  of  receiver.  Where  the  ad- 
ministration of  a  receiver  is  unduly  pro- 
longed, or  he  is  unfaithful  to  his  trust, 
the  parties  may  apply  for  his  discharge: 
they  could  have  opposed  his  appointment 
in  the  first  instance.  Painter  v.  Painter, 
138  Cal.  231;  94  Am.  St.  Eep.  47;  71  Pac. 
90.  Where  the  bill  upon  which  a  receiver 
was  appointed  is  afterwards  dismissed  on 
demurrer,  the  duties  of  the  receiver  cease 
as  between  the  parties  to  the  action;  and 
so  where  the  defendant  finally  obtains 
judgment,  the  entry  of  judgment  seems 
to  have  the  effect  of  terminating  the  re- 
ceiver's functions,  although  the  plaintiff 
perfects  an  appeal;  but  the  abatement  of 
the  action  or  the  entry  of  final  judgment 
does  not  discharge  the  receiver  ipso  facto. 
Baughman  v.  Sujierior  Court,  72 "Cal.  572; 
14  Pac.  207.  Although  the  functions  of 
the  receiver  terminate  with  the  determina- 
tion of  the  suit,  yet  he  is  still  amenable 
to  the  court  as  its  oflicer,  until  he  com- 
plies with  its  direction  as  to  the  disposal 
of  funds  received  during  the  receivership. 
Pacific  Bank  v.  Madera  Fruit  etc.  Co.,  124 
Cal.  525;  57  Pac.  462.  The  receiver  is 
discharged  by  a  decree  in  the  cause,  un- 
less he  is  expressly  continued;  but  this 
discharge    refers    to    the    surcease    of    his 


§568 


RECEIVERS. 


600 


functions  as  receiver  proper,  leaving  on 
him  the  duty  of  properly  accounting  under 
the  order  of  the  court;  and  whether  he  is 
thereafter  called  receiver  or  not,  he  is 
subject  to  the  order  of  the  court  with  re- 
spect to  the  winding  up  of  his  affairs  as 
receiver,  and  until  he  is  discharged  of 
his  responsibilities  as  trustee.  Baughman 
v.  Superior  Court,  72  Cal.  572;  U  Pac.  207. 
The  end  of  the  suit,  its  final  adjudica- 
tion, gives  cause  for  the  discharge  of  the 
receiver,  but  does  not,  ipso  facto,  effect 
his  discharge,  which  results  only  from  an 
order  or  decree  of  the  court  so  directing; 
after  the  settlement  of  the  suit,  the  re- 
ceiver must  have  time  and  opportunity 
to  prepare  and  present  his  accounts,  and 
for  the  adjustment  of  the  details  of  the 
receivership;  nor  does  the  dismissal  of 
the  action  discharge  the  receiver  from 
accountability  to  the  court:  he  is  still  an 
officer  of  the  court,  and  subject  to  its 
orders.  Pacific  Bank  v.  Madera  Fruit  etc. 
Co.,  124  Cal.  525;  57  Pac.  462.  The  func- 
tions of  a  receiver,  appointed  pending  an 
action  for  divorce,  who  does  not  take 
possession  of  any  property  before  the 
judgment,  terminates  with  the  entry  of 
the  judgment.  White  v.  White,  130  Cal. 
597;  80  Am.  St.  Eep.  150;  62  Pac.  1062. 
Where  the  complaint  is  insufiicient  to 
justify  the  appointment  of  a  receiver  pend- 
ing the  action,  the  court  has  no  power  to 
continue  him  in  office  after  the  making 
of  a  final  decree.  Bank  of  Woodland  v. 
Stephens,  144  Cal.  659;  79  Pac.  379.  Where 
a  receiver  is  appointed  at  the  request  of 
the  plaintiff,  for  a  purpose  ancillary  to 
the  main  object  of  the  action,  and  judg- 
ment is  afterwards  rendered  in  favor  of 
the  defendant,  an  appeal  by  the  plaintiff 
from  the  judgment  does  not  deprive  the 
lower  court  of  jurisdiction  to  hear  and 
determine  a  motion  made  by  the  defend- 
ant for  the  discharge  of  the  receiver. 
Baughman  v.  Superior  Court,  72  Cal.  572; 
14  Pac.  207. 

Remedies.  An  order  fixing  the  com- 
pensation of  a  receiver,  whose  appointment 
is  in  excess  of  the  jurisdiction  of  the  court, 
may  be  reviewed  either  upon  certiorari 
or  upon  appeal,  and  prohibition  does  not 
lie  to  arrest  the  proceedings  in  the  su- 
perior court  (Grant  v.  Superior  Court,  106 
Cal.  324;  39  Pac.  604);  and  an  order  ap- 
pointing, a  receiver,  made  without  juris- 
diction, may  be  annulled  upon  certiorari, 
notwithstanding  the  petitioner  has  ap- 
pealed therefrom  and  has  given  an  under- 


right  to  appeal  from  orders,  made  after 
final  judgment,  directing  a  receiver  in  an 
equity  case  to  pay  counsel  fees;  and  there- 
fore certiorari  does  not  lie  to  review  the 
same.  Elliott  v.  Superior  Court,  144  Cal. 
501;  103  Am.  St.  Eep.  102;   77  Pac.   1109. 


An  order,  pending  suit,  authorizing  the 
receiver  to  make  purchases  to  conduct  the 
prosecution  of  work,  to  be  paid  for  out 
of  the  funds  in  his  hands,  is  not  appeal- 
able. Free  Gold  etc.  Co.  v.  Spiers,  135 
Cal.  130;  67  Pac.  61.  An  order  author- 
izing and  directing  a  receiver  to  pay  a 
judgment  rendered  against  him,  cannot 
be  attacked  upon  appeal,  on  the  ground 
that  the  court  erred  in  originally  appoint- 
ing him,  where  there  is  nothing  to  show 
that  the  court  abused  its  discretion  in 
granting  the  order.  Painter  v.  Painter,  138 
Cal.  231;  94  Am.  St.  Eep.  47;  71  Pac.  90. 
Where  the  receiver,  under  a  void  judicial 
order,  seizes  property  in  the  possession 
of  a  stranger  to  the  suit,  an  appeal  affords 
no  remed}'  for  the  wrong  threatened;  in 
such  case,  prohibition  is  appropriate,  and 
the  fact  that  the  petitioner  could  have 
appealed  from  the  order  appointing  the 
receiver,  does  not  preclude  him  from  that 
relief;  the  writ  runs  to  and  operates 
directly  upon  the  court,  but  indirectly 
upon  the  receiver;  and  if  served  upon  the 
receiver,  it  is  notice  that  the  proceedings 
are  arrested,  and  stays  his  hand.  Have- 
meyer  v.  Superior  Court,  84  Cal.  327;  18 
Am.  St.  Eep.  192;  10  L.  E.  A.  627;  24 
Pac.  121.  The  receiver  may  apply  for 
the  examination  of  the  insolvent  concern- 
ing his  affairs:  by  this  means  the  court 
can  fully  preserve  the  property  of  the 
insolvent  and  protect  the  rights  of  credi- 
tors. Dennery  v.  Superior  Court,  84  Cal. 
7;  24  Pac.  147.  Where  the  receiver  has 
possession  of  property  under  a  void  com- 
mission, and  the  further  acts  of  the  court 
are  arrested  by  prohibition,  the  writ  must 
require  the  restoration  of  the  property 
to  the  petitioner,  otherwise  prohibition 
would  be  valueless;  and  where  the  court 
exceeds  its  jurisdiction  in  appointing  a 
receiver,  or  in  directing  him  to  take  spe- 
cific property  out  of  the  possession  of  a 
stranger,  the  wrong  is  in  the  order  of 
the  court,  and  the  appropriate  remedy  is 
in  some  writ  or  proceeding  operating  on 
the  court  to  restrain  its  judicial  action, 
and  not  in  the  sort  of  resistance  that  may 
be  opi^osed  to  an  ordinary  wrong-doer,  or 
in  such  an  action  as  may  be  brought 
against  a  private  person  who  has  com- 
mitted a  trespass.  Havemever  v.  Superior 
Court,  84  Cal.  327;  18  Am!  St.  Eep.  192; 
10  L.  R.  A.  627;  24  Pac.  121. 

Suits  by  receivers  outside  the  state  of  their 
appointment.  See  notes  6  Am.  St.  Rep.  185;  8 
Am.  St.  Kep.  49  ;  4  L.  K.  A.   (N.  S.)   824. 

Extraterritorial  powers  of  receiver.  See  notes 
8  Am.  St.  Kep.  49;   15  Am.  St.  Rep.  79. 

Relation  of  receiver  to  pre-existing  liens  and 
their  enforcement.    See  note  71  Am.  St.  Rep.  352. 

Actions  against  receiver  without  leave  of  court. 
See  note  74  Am.  St.  Rep.  285. 

Power  to  create  liens  on  property  in  custody 
of  receivers.     See  note  84   Am.  St.  Kep.   72. 

Power  of  receiver  of  corporation  to  issue  cer- 
tificates.    See  note  Ann.  Cas.   1913C,   40. 

Power  to  permit  receiver  of  private  corpora- 
tion to  create  liens  on  its  property.  See  note  16 
L.  R.  A.  603. 


601 


INVESTMENTS — UNCLAIMED    FUNDS — DEPOSIT    IN    COURT.       §§  569-572 


Rights  of  receiver  as  to  property  outside  of 
the  Jurisdiction  in  which  he  is  appointed.  See 
note  'J3  L.  K.  A.  52. 

Right  of  receiver  to  question  validity  of  at- 
tachment.   See  note  33  L.  H.  A.  770. 

Right  of  receiver  of  drawer  appointed  after  the 
Issuance  of  a  draft  or  check  but  before  its  pres- 
entation, as  against  the  holder.  See  note  2 
L.  R.  A.    (N.  S.)   83. 

Power  of  railway  receiver  to  contract  for  trans- 
portation beyond  own  line.  See  note  31  L.  R.  A. 
(N.  S.)   33. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. Ho  may  employ  counsel.  Adams  v.  AVoods, 
8   Cal.   315.      Generally,  he  can  pay  out  nothing, 


except  on  an  order  of  the  court;  but  there  are 
exceotioiis  to  the  rule,  and  he  will  not  be  denied 
reimbursfmints  in  every  case  in  which  he  ne- 
glects to  obtain  the  order,  especially  in  a  court  of 
equity.  Adams  v.  Woods,  15  Cal.  207.  On  an 
aijplication,  after  final  judfcmenl,  for  an  order  for 
a  receiver,  that  he  pay  over  to  the  prevailing 
party  money  in  his  hands  as  receiver,  it  will  not 
be  presumed  that  the  receiver  has  transcended  his 
duties  and  took  possession  of  property  to  which 
he  was  not  entitled;  nor  is  the  opposite  party  en- 
titled to  have  issues  framed  and  submitted  to  a 
referee  or  jury  to  ascertain  the  ownership  of  the 
money  in  the  receiver's  hands.  Whitney  v.  Buck- 
man,  20  Cal.  451. 

2.  Fees.    See  Adams  v.  Haskell,  6  Cal.  475. 


§  569.  Investment  of  funds.  Funds  in  the  hands  of  a  receiver  may  be 
invested  upon  interest,  by  order  of  the  court ;  but  no  such  order  can  be  made, 
except  upon  the  consent  of  all  the  parties  to  the  action. 


Legislation  §  569.    1.  Enacted  March  11,  1S73. 
2.   Amtndmeut    by    Stats.    1901,    p.    142;    un- 


constitutional.     See  note  ante,  §  5. 


§  570.  Disposition  of  unclaimed  funds  in  hands  of  receiver.  A  receiver 
having  any  funds  in  his  hands  belonging  to  a  person  w^hose  whereabouts 
are  unknown  to  him,  shall,  before  receiving  his  discharge  as  such  receiver, 
publish  a  notice,  in  one  or  more  newspapers  published  in  the  county,  at  least 
once  a  week  for  four  consecutive  weeks,  setting  forth  the  name  of  the  owner 
of  any  unclaimed  funds,  the  last  known  place  of  residence  or  post-office  ad- 
dress of  such  owner  and  the  amount  of  such  unclaimed  funds.  Any  funds 
remaining  in  his  hands  unclaimed  for  thirty  days  after  the  date  of  the  last 
publication  of  such  notice,  shall  be  reported  to  the  court  and,  upon  order 
of  the  court,  all  such  funds  must  be  paid  into  the  state  treasury  accompanied 
with  a  copy  of  the  order,  which  must  set  forth  the  facts  required  in  the 
notice  herein  provided.  Such  funds  shall  be  paid  out  by  the  state  treasurer 
to  the  owner  thereof  or  his  order  in  such  manner  and  upon  such  terms  as 
are  now  or  may  hereafter  be  provided  by  law. 


Legislation  §  570.  1.  Added  by  Stats.  1913, 
p.  92. 

2.  Amended  by  Stats.  1915,  p.  107,  substi- 
tuting the  present  final  s'liteni-e  for  one  reading, 
"All  funds   so  paid  into   tiie   state   treasury   must 


be  received,  invested,  accounted  for  and  paid 
out,  in  the  same  manner  and  by  the  same  offi- 
cers as  is  provided  by  law  in  the  case  of  es- 
cheated estates,  and  in  section  twelve  hundred 
and  seventy-two  of  this  code." 


CHAPTER  VI. 

DEPOSIT   IN   COUKT. 

S  572.    Deposit  in  court.  §  574.    Manner  of  enforcing  the  order. 

§  573.    Money   paid    to    clerk   must    be    deposited 
with  county  treasurer. 

§  572.  Deposit  in  court.  When  it  is  admitted  by  the  pleadings,  or  shown 
upon  the  examination  of  a  pai-ty  to  the  action,  that  he  has  in  his  possession, 
or  under  his  control,  any  money  or  other  thing  capable  of  delivery,  w'hich, 
being  the  subject  of  litigation,  is  hold  by  him  as  trustee  for  another  party, 
or  which  belongs  or  is  due  to  another  party,  the  court  may  order  the  same, 
upon  motion,  to  be  deposited  in  court  or  delivered  to  such  party,  upon  such 
conditions  as  may  be  just,  subject  to  the  further  direction  of  the  court. 

Wlien  court  may  order  deposit.  To  jus- 
tify the  making  of  an  order  requiring 
a  deposit  in  court,  the  admission,  in  the 
pleadings,  of  having  property,  not  di- 
rectly the  subject  of  litigation,  in  poss-.^s- 
sion,  belonging  to  another,  must  be  free 
from  any  claim  thereto.    Burke  v.  Superior 


Legislation  8  572.  1.  Enacted  March  11, 
1872;   based   on  Practice  Act,  §  142. 

2.  Amendment  by  Stats.  1901,  p.  142;  un- 
constitutional.     See   note   ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  710,  (1)  in 
first  line,  changing  "pleading"  to  "pleadings"; 
(2)  inserting  "to  the  action,"  after  "party,"  "as 
in  its  present  form,"  the  rode  commissioner  said, 
"the  section  is  entirely  misleading." 


§573 


DEPOSIT   IN    COURT. 


602 


Trustee.  This  section  refers  to  prop- 
erty without  question  in  the  hands  of  a 
trustee  as  trust  property,  or  which  be- 
longs to  or  is  due  to  another:  it  does  not 
refer  to  that  which  an  alleged  trustee 
claims  title  to  in  his  own  right;  and,  under 
it,  the  court  has  no  authority  to  adjudi- 
cate the  title  to  property  held  by  a  person 
claiming  it  as  his  own.  Ex  parte  Casey, 
71  Cal.  269;  12  Pac.  118.  Where  the 
money  directed  to  be  paid  into  court  was 
not  at  that  time,  and  never  had  been, 
in  the  hands  of  the  trustee,  but  was  made 
up  of  moneys  which  the  trustee  should 
have  but  had  not  received  as  interest, 
the  order  is  not  within  the  class  provided 
for  by  this  section  and  the  two  following 
sections.  Williams  v.  Dwinelle,  51  Cal. 
442. 

Sheriff's^  deposit  not  included.  This  sec- 
tion and  §  573,  post,  provide  for  a  case 
different  from  that  of  a  sheriff  depositing 
with  the  treasurer  of  a  county,  moneys  re- 
ceived from  a  sale  in  foreclosure  proceed- 
ings. Heppe  V.  Johnson,  73  Cal.  265;  14 
Pac.  833. 

Eight  to  recover  interest  on  fund  in  litigation 
or  deposited  in  court.  See  note  Ann.  Cas.  1912B, 
1004. 


Court,  7  Cal.  App.  178;  93  Pac.  1058.  The 
order  allowed  by  this  section  is,  that  the 
party  pay  the  money  into  court,  or  to 
the  party  to  whom  it  is  admitted  by  the 
pleading,  or  shown  by  the  examination 
of  the  party,  to  be  due:  to  justify  the 
court  in  ordering  a  deposit  in  bank,  sub- 
ject to  its  further  order,  of  money  which 
the  party  claims  as  his  own,  the  court 
must  first  determine  that  such  party  has 
no  title  to  it.  Ex  parte  Casey,  71  Cal.  269; 
11  Pac.  lis.  If  the  money  in  the  pos- 
session of  the  party  is  not  the  subject  of 
the  litigation,  but  its  payment  is  incident 
thereto,  dependent  upon  the  judgment  to 
be  rendered,  as  in  the  case  of  an  action 
for  redemption,  specific  performance,  ac- 
counting, rescission,  or  the  like,  the  pro- 
visions of  this  section  do  not  authorize 
the  issuance  of  an  order  to  deposit  it  in 
court;  and  where  the  court  ordered  certain 
moneys,  or  a  certificate  of  deposit,  to  be 
paid  into  court,  and  exception  was  taken 
thereto,  such  order  may  be  reviewed  as 
error  of  law  occurring  at  the  trial,  upon 
appeal  from  an  order  granting  or  denying 
a  new  trial.  Green  v.  Duvergey,  146  Cal. 
379;  80  Pac.  234. 

§  573.  Money  paid  to  clerk  must  be  deposited  with  county  treasurer. 
Whenever  money  is  paid  into  or  deposited  in  court,  the  same  must  be  de- 
livered to  the  clerk  in  person,  or  to  such  of  his  deputies  as  shall  be  specially 
authorized  by  his  appointment  in  writing  to  receive  the  same.  He  must, 
unless  otherwise  directed  by  law,  deposit  it  with  the  county  treasurer,  to  be 
held  by  him  subject  to  the  order  of  the  court.  The  treasurer  must  keep  each 
fund  distinct,  and  open  an  account  with  each.  Such  appointment  must  be 
filed  with  the  county  treasurer,  who  must  exhibit  it,  and  give  to  each  per- 
son applying  for  the  same  a  certified  copy  of  the  same.  It  shall  be  in  force 
until  a  revocation  in  writing  is  filed  with  the  county  treasurer,  who  must 
thereupon  write  "revoked,"  in  ink,  across  the  face  of  the  appointment.  For 
the  safekeeping  of  the  money  deposited  with  him  the  treasurer  is  liable  on 
his  official  bond. 

is  then  deposited  by  the  clerk  with  the 
county  treasurer,  as  a  deposit  of  court, 
the  same  becomes  a  deposit  in  court;  and, 
however  erroneously  the  court  may  have 
acted  in  the  premises,  its  order,  being 
within  its  jurisdiction,  is  not  absolutely 
void,  and  is  impregnable  to  collateral  at- 
tack. Agoure  v.  Peck,  17  Cal.  App.  759; 
121  Pac.  706. 

County  treasurer  should  cash  certificate 
of  deposit.  Where  a  county  treasurer  re- 
ceives, as  a  deposit  in  court,  a  certificate 
of  deposit  indorsed  to  him,  it  is  his  duty 
to  reduce  it  to  money;  if  he  does  not,  and 
loss  ensues,  he  is  answerable  on  his  laond. 
Agoure  v.  Peck,  17  Cal.  App.  759;  121 
Pac.   706. 

CODE  COMMISSIONUES'  NOTE.  Stats.  1863- 
64,  p.  468. 


Legislation  §  573.  1.  Enacted  March  11,  1873 
(based  on  Stats.  1863-64,  p.  408),  and  then 
read:  "If  the  money  is  deposited  in  court  it  must 
be  paid  to  the  clerk,  who  must  deposit  it  with 
the  county  treasurer,  by  him  to  be  held  subject 
to  the  order  of  the  court.  For  the  safe-keeping 
of  the  money  deposited  with  him  the  treasurer  is 
liable  on  his  official  bond." 

2.  Amendment  by  Stats.  1901,  p.  142;  un- 
constitutional.     See  note  ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  711;  the  code 
commissioner  saying,  "The  amendment  consists  in 
consolidating  §§  573  and  2104,  there  being  two 
sections  covering  the  same  subject,  where  only 
one  is  needed,  and  omits  the  first  sentence  of  the 
former  section,  so  as  to  remove  any  possible 
conflict  between  them."  When  added  by  Code 
Amdts.  1873-74,  p.  394,  §  2104  had,  (1)  in  the 
first  line,  the  words  "moneys  are"  instead  of 
"money  is,"  and  (2)  the  word  "shall"  instead 
of  "must,"   in  all  instances. 

Effect  of  order  of  court.  When  the 
court  has  taken  cognizance  of  a  fund,  and, 
by  its  judgment,  determines  the  same  to 
have  been  paid  into  court,  and  the  money 


603  MONEY   ORDERED   DEPOSITED MANNER   OF   ENFORCING    ORDER.  §  574 

§  574.  Manner  of  enforcing  the  order.  Wlieuever,  in  the  exercise  of  its 
authority,  a  court  has  ordered  the  deposit  or  delivery  of  money,  or  other 
thing,  and  the  order  is  disobeyed,  the  court,  beside  punishing  the  disobe- 
dience, may  make  an  order  requiring  the  sheriff  to  take  the  money,  or  thing, 
and  deposit  or  deliver  it  in  conformity  with  the  direction  of  the  court. 

S  i^oo'^^^"^  *^°   disobedience.     Contempt.   Post.  bill  as  formerly  used  in  chancery;  so  that 
s"heriff'8    duties    as    to    official     moneys.      Pol  ^°^  property  reachable  by  a  creditor's  bill 
•Code,  §  41G2.  may  now  bo  reached  by  the  process  of  pro- 
Legislation  §  574.     Enacted  March  11,  1873.  ceedinys  supplementary  to  execution.    Pa- 
Scope    of    section.     Proceedings    under  Tm    Sen^JoAtrTu'   "r/^"';    '''^^'    t?. 
this    section    and    §§    714-721,    pSst,    were  cS' 2n-37A^  St  Po     -n'  ,^J  o  ^"'^?°'  ^^ 
-intended  as  a  substitute  for  the  creditors'  '  ^^'  ^^  ^'°-  ^*-  ^^^^  '^'  ^^  P^*^'  ^^^' 


§577 


JUDGMENT,   IN    GENERAL. 


604 


TITLE  VIII. 
TRIAL  AND  JUDGMENT  IN  CIVIL  ACTIONS. 

Chapter  I.     Judgment  in  General.     §§  577-583. 

II.     Judgment  upon  Failure  to  Answer.     §  585. 
III.     Issues.     Mode  of  Trial,  and  Postponements.     §§  588-596. 
IV.     Trial  by  Jury.     §§  600-628. 

Article  I.     Formation  of  Jury.     §§  600-604. 
II.     Conduct  of  Trial.     §§  607-619. 
III.     The  Verdict.     §§  624-628. 
V.     Trial  by  Court.     §§  631-636. 
VI.     References  and  Trials  by  Eeferees.     §§  638-645. 
VII.     Provisions   Relating  to   Trials   in   General.      §§  646-663a. 
Article  I.     Exceptions.     §§  646-653. 
II.     New  Trials.     §§  656-663a. 
VIII,     Manner  of  Giving  and  Entering  Judgment.     §§  664-6801/^. 


CHAPTER  I. 

JUDGMENT  IN  GENERAL. 


§  577.    Judgment  defined. 

§  578.     Judgment    may    be    for   or   against   one   of 

the  parties. 
§  579.     Judgment   may  be   against   one   party   and 

action  proceed  as  to  others. 
§  580.     The  relief  to  be  awarded  to   the  plaintiff. 


§  581.  Action  may  be  dismissed,  or  nonsuit  en- 
tered. 

§  581a.  Dismissal  of  action  for  failure  to  issue 
summons,  when. 

§  581b.  Dismissal   of  actions  after  transfer. 

I  582.     All  other  judgments  are  on  the  merits. 

§  583.     Dismissal  of  actions. 


§  577.     Judgment  defined.     A  judgment  is  the  final  determination  of  the 
rights  of  the  parties  in  an  action  or  proceeding. 

determines  the  rights  of  the  parties  should 
be  called  a  judgment,  and  that  every 
other  direction  of  a  court  or  .judge  mad© 
or  entered  in  writing  should  be  denomi- 
nated an  order.  This  section,  and  §  1003, 
post,  were  taken  from  the  New  York 
Code  of  Procedure,  the  purpose  of  which 
sections,  as  explained  by  the  codifiers  of 
that  state,  was  to  avoid  the  confusion  in- 
cident to  the  use  of  the  word  "judgment"^ 
in  two  senses,  one  as  interlocutory  and 
the  other  as  final;  it  being  better  to  use 
the  word  only  in  the  latter  sense,  and  t» 
designate  all  other  written  directions  of 
the  court  as  orders.  Thompson  v.  Wliite^ 
63  Cal.  505. 

Judgment,  final  judgment,  and  order, 
defined.  A  judgment  constituting  a  "final 
determination  of  the  rights  of  the  par- 
ties," is  a  final  judgment.  Hentig  v.  John- 
son, 8  Cal.  App.  221;  96  Pac.  390.  A 
judgment  may  be  final,  in  the  sense  of 
the  term  as  used  in  this  section  and  §§  936, 
1908,  post,  and  yet  not  final  as  used  in 
§  939,  post.  People  v.  Bank  of  Mendocino 
County,  133  Cal.  107;  65  Pac.  124.  A 
judgment  without  parties,  or  a  judgment, 
however  perfect  in  form,  attended  with 
none  of  the  consequences  of  a  judgment,^ 
can  be  a  judgment  only  by  pretension,  and 
its  ratification  by  the  creditor  cannot 
affect  rights  acquired  by  a  third  party 
prior  to  the  ratification,  and  while  the 
judgment  was  one  only  in  name.    Wilcox- 


Judgment. 

1.  Confession,  by.    Post,  §  1132. 

2.  Default,  by.    Post,  §  585. 

3.  Demurrer,   on.    Post,  §  636. 

4.  Estoppel   as  to.    Post,  §  1903. 

5.  Generally.    Post,  §  664. 

6.  Nonsuit.     Post,  §  581. 

7.  On  trial  by  court.    Post,  §  633. 

8.  On  trial  by  jury.    Post,  §  664. 
Order,   defined.    Post,  §  1003. 

Judgment  in  special  proceeding,  defined.  See 
post,  §  1064. 

Legislation  §  577.  1.  Enacted  March  11,  1872 ; 
based  on  Practice  Act,  §  144  (New  York  Code, 
§245),  which  had,  (1)  the  word  "the"  instead 
of  "an,"  before  "action,"  and  (2)  at  end  of 
section,  the  words,  "and  may  be  entered  in  term 
or  vacation." 

2.  Amendment  by  Stats.  1901,  p.  143;  un- 
constitutional.     See  note  ante,  §  5. 

Scope  of  section.  The  court  is  not  pro- 
hibited by  this  section,  nor  by  §  1003, 
post,  from  entering  such  intermediate  de- 
terminations as  the  exigencies  of  a  case 
may  demand,  and  there  is  no  conflict  be- 
tween these  sections  and  §  187,  ante, 
relating  to  the  means  provided  for  exer- 
cising jurisdiction.  Thompson  v.  White, 
63  Cal.  505.  This  section  must  be  read 
in  connection  with  §§  138,  139,  of  the  Civil 
Code,  in  actions  for  divorce  and  for  the 
control  of  minor  children.  McKay  v. 
McKay,  125  Cal.  65;  57  Pac.  677.  The 
purpose  of  this  section  is,  not  to  abolish 
the  power  of  a  court  of  equity  to  pronounce 
what  in  equity  practice  was  called  an 
interlocutory  decree  or  decretal  order,  but 
only    to    provide    that    that    which    finally 


605 


JUDGMENT — FINAL  JUDGMENT — ORDER. 


§577 


son  V.  Burton,  27  Cal.  228;  87  Am.  Dec.  G6. 
No  particular  form  of  judgment  is  i)re- 
scribed  in  the  statute;  hut  it  must  bo 
rendered  by  the  court  in  such  a  mode  as 
will  conform  to  the  cause  of  action  stated 
and  the  jiroof  adduced  on  the  trial.  Mc- 
Garrahan  v.  Maxwell,  28  Cal.  78;  Heutig 
V.  Johnson,  8  Cal.  App.  221;  96  Pac.  390. 
The  decision  of  the  court,  if  it  finally 
determines  the  rights  of  parties  touching 
the  matters  in  controversy,  is  a  judgment; 
and  it  is  immaterial  whether  the  court 
grants  relief  to  each  of  the  i)arties,  or  to 
one  party  only,  or  whether  the  relief  is, 
in  its  character,  legal  or  equitable,  or 
both.  McGarrahan  v.  Maxwell,  28  Cal.  75. 
An  order  is  a  decision  made  during  the 
progress  of  the  cause,  either  prior  or  sub- 
sequent to  final  judgment,  settling  some 
point  of  practice  or  some  question  col- 
lateral to  the  main  issue  presented  by 
the  pleadings,  and  necessary  to  be  dis- 
posed of  before  such  issue  can  be  passed 
upon  by  the  court,  or  necessary  to  be  de- 
termined in  carrying  final  judgment  into 
execution;  a  final  judgment  is  the  deter- 
mination of  the  court  upon  the  issues  pre- 
sented by  the  pleadin'gs,  which  ascertains 
and  fixes  absolutely  and  finally  the  rights 
of  the  parties  in  the  particular  suit  in 
relation  to  the  matter  in  litigation,  and 
puts  an  end  to  the  suit.  Loring  v.  Illsley, 
1  Cal.  24;  McGuire  v.  Drew,  83  Cal.  225; 
23  Pac.  312;  Estate  of  Smith,  98  Cal.  636; 
33  Pac.  744;  Wells  v.  Torrance,  119  Cal. 
437;  51  Pac.  626.  An  order,  as  distin- 
guished from  a  final  judgment,  is  the 
judgment  or  conclusion  of  the  court,  upon 
any  motion  or  proceeding  not  declared,  de- 
termining the  rights  of  the  parties.  Es- 
tate of  Rose,  80  Cal.  166;  22  Pac.  86.  The 
judgment  becomes  final  upon  its  entry,  not 
only  as  to  the  matters  actually  deter- 
mined, but  also  as  to  every  other  matter 
which  the  parties  might  have  litigated  in 
the  cause  and  have  had  decided.  McKay 
V.  McKay,  125  Cal.  65;  57  Pac.  677.  Every 
order  of  a  court  or  judge  is,  in  one  sense, 
a  judgment;  and  the  term  "final  judg- 
ment" means  the  ultimate  or  last  judg- 
ment, which  puts  an  end  to  the  suit  or 
proceedings.  Estate  of  Smith,  98  Cal. 
636;  33  Pac.  744.  The  judgment,  when  en- 
tered, becomes  the  record  of  what  the 
court  has  determined,  and  it  is  then  as 
binding  as  if  entered  immediately  upon 
its  rendition.  Crim  v.  Kessing,  89  Cal. 
478;  23  Am.  St.  Rep.  491;  26  Pac.  1074. 
The  determination  of  a  matter  contained 
in  an  order  is  not  a  judgment.  Scott  v. 
Shields,  8  Cal.  App.  12;  96  Pac.  385.  Only 
one  judgment  is  to  be  included  in  the 
judgment  roll,  and  such  judgment  is  the 
one  defined  in  this  section  as  constituting 
the  final  determination  of  the  rights  of 
the  parties  in  the  action.  Colton  Land  etc. 
Co.  V.  Swartz,  99  Cal.  278;  33  Pac.  878. 
A  judgment  dissolving  a  partnership,  and 


directing   a   sale   of   the   partnership   prop- 
erty  and   a  division   of   the   proceeds,   is   a 
final  judgment.    Clark   v.  Dunnam,  46  Cal. 
204.     A    dciTee    refusing    to    set    aside    a 
homestead  is,  in  its  essentials,  a  judgment; 
and    a    determination,    upon    the    issue    of 
widowhood,  that  a  woman  is  not  a  widow, 
is  a  judgment.    Estate  of  Harrington,  147 
Cal.  'l24;    109   Am.   St.   Rep.    118;   81   Pac. 
546.     An    order    settling    a    receiver's    ac- 
count,   although    made    before     there    has 
been    a    final    judgment    in    the    action    in 
w-hich  he  was  appointed,  is  a  final   deter- 
mination   of    the    rights    of     the    parties. 
Los   Angeles   v.   Los   Angeles    City    Water 
Co.,   134  Cal.   121;   66   Pac.  198.     A  decree 
pro   confesso   on   a   cross-bill   in   a   suit   in 
equity  in  a  Federal  court  is  interlocutory, 
and  not  final;   and,  after  such  decree  has 
been   vacated,   no  suit  can  be   maintained 
in    the    state    court   upon   it,    or    to    annul 
the  order  vacating  it.    Blythe  Co.  v.  Bank- 
ers' Investment  Co.,   147   Cal.   82;   81   Pac. 
281.     The   statute  of  limitations   does  not 
begin   to   run   against   an   action   upon   the 
judgment  from  the  date  of  its  entry,   but 
only  after  the  lapse  of  the  period  within 
which  an  ajipeal  might  be  taken  from  the 
judgment   if   none   is   taken   therefrom,   or 
after    the    final    determination    following 
an   appeal   so  taken.    Feeney  v.  Hincklev, 
134  Cal.  467;  86  Am.  St.  Rep.  290;  66  Pac. 
580.     The  general  rule,  that,  until  a  judg- 
ment  becomes   final   by   affirmance   on   ap- 
peal, or  by  lapse  of  the  time  within  which 
an  appeal  may  be  taken,  it  is  not  admis- 
sible in   evidence  and  cannot  be  relied  on 
as  the  foundation  of  rights  declared  in  it, 
does  not  apply  to  an  action  in  the  nature 
of  a   creditor's   bill.    Sewell   v.   Price,   164 
Cal.  265;   128  Pac.  407.     An  entry  by  the 
clerk,  at  the  end  of  the  trial,  in  the  min- 
utes  of  the  court,  of  the  decision   of  the 
judge,  being  but  a  ministerial  act  of  the 
clerk,  does  not  constitute  a  judgment;  but 
where   the   decision   was   rendered   by   the 
judge,    but    was    not     entered,    before     he 
went  out  of  office,  the  entry  of  the  judg- 
ment by  the  clerk,  after  the  term  of  the 
former    judge    had    expired,    being    but    a 
ministerial   act,   has   as   much   effect   as   if 
made    before.      Crim    v.    Kessing,    89    Cal. 
478;   23   Am.   St.   Rep.   491;   26   Pac.   1074. 
An   order  settling   the   account   of  an   ad- 
ministrator   is    not    a    final    determination 
of  the   rights  of   the  parties,   constituting 
a  judgment   within   the   meaning  of   §  939. 
post,  and  especially  where,  in  settling  the 
account,    portions    thereof    are   left   unset- 
tled   and    undetermined.     Estate    of    Rose, 
80  Cal.  166;  22  Pac.  86.     The  judgment  is 
not   required   to   be   signed   by  the   judge, 
and  a  judgment  produced  from  the  original 
records  needs  no  signature  or  exemplifica- 
tion;  the  signature  is  merely  to  give  the 
clerk    a   surer    means    of   accurately   enter- 
ing what  has  been  adjudged.    Crim  v.  Kes- 
sing, 89  Cal.  478;  23  Am.  St.  Rep.  491;  26 


§577 


JUDGMENT,   IN    GENERAL. 


606 


Pac.  1074;  Clink  v.  Thurston,  47  Cal.  21; 
Estate  of  Cook,  77  Cal.  220;  11  Am.  St. 
Eep.  267;  1  L.  E.  A.  567;  17  Pac.  923;  19 
Pac.  431. 

Judgments  against  decedents.  A  judg- 
ment for  mesne  profits  against  the  estate 
of  a  deceased  person  should  be  made  pay- 
able in  due  course  of  administration. 
Nathan  v.  Dierssen,  164  Cal.  607;  130  Pac. 
12. 

Judgments  of  sister  states.  One  judg- 
ment, being  of  as  high  a  nature  as  an- 
other, a  judgment  in  another  state  cannot 
extinguish  or  determine  a  judgment  ren- 
dered here.  Lillj^-Brackett  Co.  v.  Sonne- 
mann,  163  Cal.  632;  Ann.  Cas.  1914A,  364; 
42  L.  R.  A.  (N.  S.)  360;  126  Pac.  483. 

Identity  of  names  in  judgment.  Mere 
identity  of  name,  in  a  judgment,  does  not 
establish  the  fact  that  the  plaintiff  and 
the  defendant  are  the  same  person.  Buck- 
eye Eefining  Co.  v.  Kelly,  163  Cal.  8;  Ann. 
Cas.  1913E,  840;  124  Pac.  536. 

Validity  of  judgments.  The  validity  of 
a  judgment  is  governed  by  the  laws  of 
the  state  where  it  was  rendered.  Fox  v. 
Mick,  20  Cal.  App.  599;  129  Pac.  972. 
Every  presumption  is  in  favor  of  a  judg- 
ment: it  will  be  presumed  that  the  plain- 
tiff and  the  defendant,  although  bearing 
the  same  name,  were  different  persons. 
Buckeye  Eefining  Co.  v.  Kelly,  163  Cal.  8; 
Ann.  Cas.  1913E,  840;  124  Pac.  536. 

Jurisdiction.  The  jurisdiction  of  a 
court  of  a  sister  state  may  be  controverted 
bv  extraneous  evidence.  Fox  v.  Mick,  20 
Cal.  App.  599;  129  Pac.  972.  Where  the 
procedure  is  regulated  by  statute,  juris- 
diction over  the  subject-matter  of  the 
action,  as  well  as  over  the  parties,  ter- 
minates with  the  entry  of  final  judgment 
therein,  except  for  the  purpose  of  en- 
forcing the  judgment  and  carrying  out  its 
provisions,  or  for  correcting  mistakes  in 
the  record,  upon  proper  application  there- 
for. McKay  v.  McKay,  125  Cal.  65;  57 
Pac.  677. 

Attack  on  judgments.  A  domestic  judg- 
ment, regular  upon  its  face,  is  not  the 
subject  of  collateral  attack.  Layne  v. 
Johnson,  19  Cal.  App.  95;  134  Pac.  860. 
The  judgment  of  a  court  of  a  sister  state 
may  always  be  impeached  by  showing 
that  the  court  rendering  it  had  no  juris- 
diction over  the  parties  or  the  subject- 
matter  of  the  action.  Fox  v.  Mick,  20  Cal. 
App.  599;  129  Pac.  972.  On  a  motion  by 
the  judgment  debtor  to  have  the  satis- 
faction of  a  judgment  entered  of  record, 
an  assignee  of  the  judgment  cannot,  for 
mere  error  in  the  exercise  of  jurisdiction, 
attack  the  validity  of  the  judgment  on 
which  execution  issued  against  his  as- 
signor. B\ickeve  Refining  Co.  v.  Kellv,  163 
Cal.  8;  Ann.  Cas.  1913E,  840;  124  Pac.  536. 

Constructive  service,  fraud,  due  dili- 
gence. A  judgment  rendered  upon  a  con- 
structive   service    of    summons    should    be 


set  aside,  where  the  evidence  shows  that 
the  plaintiff  did  not  use  due  diligence  to- 
find  the  defendant,  and  that  his  aflSdavit 
for  service  by  publication  was  false,  as  on, 
a  direct  attack  upon  the  ground  of  fraud, 
by  the  plaintiff  in  obtaining  it,  the  ques' 
tion  of  due  diligence,  as  between  the 
parties,  is  open.  Neither  an  order  for 
publication  of  summons,  based  upon  affi- 
davit, nor  a  judgment  following  a  service 
by  publication  thereon,  is  conclusive  of 
the  fact  that  due  diligence  was  used  to 
find  the  defendant.  It  is  a  fraud  to  pre- 
sent a  false  afiidavit  to  obtain  an  order 
for  the  service  of  summons  by  publication, 
and  a  judgment  based  upon  an  order  so 
obtained  will  be  set  aside,  in  an  action 
by  the  defendant  constructively  served^ 
against  the  plaintiff,  where  no  rights  of 
innocent  third  parties  claiming  under  the 
judgment,  are  involved.  Stern  v,  Judson, 
163  Cal.  726;  127  Pac.  38. 

Findings  and  conclusions  of  law.  When- 
ever findings  are  required,  there  can  be 
no  rendition  of  the  judgment  until  they 
are  made  and  filed  with  the  clerk.  Crim 
V.  Kessing,  89  Cal.  478;  23  Am.  St.  Eep. 
491;  26  Pac.  1074.  On  a  collateral  attack, 
an  inconsistency  between  the  findings  and 
the  judgment  does  not  impair  the  judg- 
ment: the  question  whether  the  findings 
support  the  judgment  cannot  be  raised  in  a 
collateral  action.  Crim  v.  Kessing,  89 
Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  Johnston  v.  San  Francisco  Savings- 
Union,  75  Cal.  134;  7  Am.  St.  Rep.  129; 
16  Pac.  753.  Whenever  findings  are  waived 
or  are  not  required,  the  entrj'  of  the 
court's  decision  in  the  minutes  of  the  court 
constitutes  "rendition  of  the  judgment,"  in 
the  same  manner  as  under  the  Practice 
Act.  Crim  v.  Kessing,  89- Cal.  478;  23  Am. 
St.  Rep.  491;  26  Pac.  1074.  A  judgment 
for  mesne  profits  may  be  rendered,  with- 
out a  judgment  for  restitution,  or  without 
findings  establishing  the  plaintiff's  right 
to  restitution.  Nathan  v.  Dierssen,  l64 
Cal.  607;  130  Pac.  12.  The  court  may, 
at  any  time  before  entry  of  judgment,, 
change  its  conclusions  of  law  upon  facts 
found;  and  such  change  may  be  made  by 
a  judge  other  than  the  one  who  tried  the 
case.  Crim  v.  Kessing,  89  Cal.  478;  23  Am.. 
St.  Rep.  491;  26  Pac.  1074. 

Ees  adjudicata.  Where  an  issue  of  fact,, 
vital  to  the  controversy,  has  been  tried,, 
and  a  judgment  depending  for  its  suffi- 
ciency upon  the  finding  of  fact  becomes 
final,  that  determination  of  fact  is  forever 
binding,  in  every  court,  between  the  par- 
ties thereto  and  their  privies.  Estate  of. 
Harrington,  147  Cal.  124;  109  Am.  St.  Rep. 
118;  81  Pac.  546;  Quirk  v.  Rooney,  130 
Cal.  505;  62  Pac.  825;  Bingham  v.  Kear- 
ney, 136  Cal.  175;  68  Pac.  "597.  The  test 
of  the  plea  of  res  adjudicata  is  the  subject- 
matter  of  the  action,  and  not  the  remedy 
by  which  the  party  may  seek  judicially  to, ' 


607 


RES   ADJUDICATA — MERGER,   ETC. — BURNT   RECORDS — APPEAL. 


§577 


assert  the  riji^bt  of  action.  Suisun  Lumber 
Co.  V.  r.-iirficld  School  District,  ]9  Cal. 
App.  587;  127  Pac.  349.  It  is  not  neces- 
sary that  all  of  the  parties  plaintifT  and 
defendant  to  a  former  action  should  be 
joined  in  a  later  action,  to  render  a  plea 
of  res  adjudicata  available  as  an  estoppel. 
Where  an  action  was  against  a  number 
of  defendants,  and  its  merits  Avere  adjudi- 
cated as  to  all,  and  the  same  plaintiff  sues 
one,  only,  of  such  defendants  upon  the 
same  cause  of  action,  the  later  action  is 
between  "the  same  jiarties"  as  those  of 
the  former,  upon  the  question  of  res  ad- 
judicata as  between  them.  The  plea  of 
res  adjudicata  applies  to  every  point  that 
properly  belongs  to  the  subject  of  the 
litigation,  and  which  the  parties,  exerting 
reasonable  diligence,  might  have  put  for- 
ward at  the  time.  Suisun  Lumber  Co. 
V.  Fairfield  School  District,  19  Cal.  App. 
587;  127  Pac.  349.  A  judgment,  based 
upon  the  confession  of  an  insolvent  debtor, 
made  without  the  request  and  without  the 
knowledge  of  the  creditor,  and  entered 
up  at  the  instance  of  the  debtor  alone,  is 
not  a  judgment,  as  the  creditor  is  not 
bound  to  accept  it  as  the  measure  of  his 
rights,  nor  would  such  confession  bar  an 
action  brought  by  him  on  the  same  grava- 
men, nor  estop  the  party  by  whom  the 
confession  was  made  from  denying  the 
facts  set  forth  in  it.  Wilcoxson  v.  Burton, 
27  Cal.  22S;  87  Am.  Dec.  66.  A  judgment 
that  property  involved  in  the  action  is 
community  property,  estops  the  wife  from 
subsequently  asserting  that  it  is  not  such; 
it  also  estops  a  third  party  plaintiff  from 
claiming,  as  between  himself  and  the 
wife,  that  he  acquired  the  legal  title 
by  deed.  Nolan  v.  Hyatt,  163  Cal.  1;  124 
Pac.  439.  Where  the  plaintiff,  in  an  action 
to  recover  pledged  shares  of  corporate 
stock,  obtains  judgment  for  a  return  of 
the  property,  such  judgment  is  a  bar  to 
a  subsequent  action  to  recover  damages  for 
wrongfully  withholding  its  possession,  or 
for  the  repayment  of  attorneys'  fees  in- 
curred in  the  prior  action.  Van  Home  v. 
Treadwell,  164  Cal.  620;  130  Pac.  5.  A 
judgment  of  a  court  in  probate,  in  home- 
stead proceedings,  raises  an  estoppel 
against  a  i)arty  seeking  to  have  the  home- 
stead right  set  aside,  where  the  right  is 
denied  upon  the  ground  that  such  })erson 
was  not  the  widow  of  the  deceased,  and 
the  question  of  widowhood  cannot  be 
afterwards  raised  in  an  attempted  liti- 
gation of  the  same  claim  upon  distribution. 
Estate  of  Harrington,  147  Cal.  124;  109 
Am.  St.  Rep.  118;  81  Pac.  546.  The  ques- 
tion of  the  validity  of  an  executor's  sale 
under  the  provisions  of  a  will,  made  with- 
out notice,  is  concluded  by  the  decree  of 
distribution,  where  the  court  had  juris- 
diction: it  cannot,  more  than  thirt}'  years 
afterwards,  be  again  litigated  in  a  col- 
lateral proceeding  by  the  heir.    Bagley  v. 


San  Francisco,  19  Cal.  App.  2.j5;  12.j  Pac. 
931.  Where  a  city  alone  is  answerable  for 
a  demand  against  it,  a  former  application 
for  a  writ  of  mamlate  against  the  city 
treasurer  is  no  bar  to  an  action  for  a 
money  judgment  against  the  city.  Madary 
V.  Fresno,  20  Cal.  App.  91;  128  Pac.  340. 

Merger  of  judgments.  Merger  takes 
place  only  where  a  security  or  an  indebt- 
edness of  an  inferior  passes  into  one  of 
a  superior  degree.  Liliy-Brackett  Co.  v. 
Sonnemann,  163  Cal.  632;  Ann.  Cas.  191 4A, 
364;  42  L.  R.  A.  (N.  S.)  360;  126  Pac.  483. 
A  judgment  obtained  in  one  state  does  not 
become  merged  in  a  judgment  based  upon 
it,  which  is  rendered  in  favor  of  the  judg- 
ment creditor  in  another  state:  so  long 
as  the  indebtedness  evidenced  thereby  is 
unsatisfied,  successive  suits  in  different 
states  may  be  prosecuted.  Lilly-Brackett 
Co.  V.  Sonnemann,  163  Cal.  632;  Ann.  Cas. 
1914A,  364;  42  L.  R.  A.  (N.  S.)  360;  126 
Pac.  483. 

Changes  in  judgments.  Changes  in  judg- 
ments are  limited  to  the  cases  and  condi- 
tions expressed  in  the  statute  by  which 
thev  are  authorized.  McKay  v.  McKay, 
125' Cal.  65;  57  Pac.  077. 

Restoration  of  burnt  records.  A  pro- 
ceeding may  be  maintained  for  the  restora- 
tion of  a  judgment  roll  destroyed  by  fire, 
although,  at  the  time  of  such  destruction, 
a  motion  for  a  new  trial  and  the  settle- 
ment of  a  bill  of  exceptions  to  be  used 
thereon  were  then  pending,  and  it  is  im- 
possible to  restore  the  contents  of  the  bill 
of  exceptions;  and  in  such  proceeding  the 
effect  of  the  restored  record  is  not  in- 
volved. Foerst  v.  Kelso,  163  Cal.  436;  125 
Pac.  1054. 

Action  on  judgment.  No  action  lies 
upon  a  juilgment  until  it  is  final.  Feeney 
V.  Hinckley,  134  Cal.  467;  86  Am.  St.  Rep. 
290;  66  Pac.  580;  Hills  v.  Sherwood,  33 
Cal.  474;  Gillmore  v.  American  etc.  Ins. 
Co.,  65  Cal.  63;  2  Pac.  882. 

Burden  of  proof.  The  burden  is  on  the 
assignee  of  a  part  of  a  judgment  to  affirma- 
tively show  that  the  judgment  debtor 
had  notice  of  the  assignment  before  pay- 
ing the  judgment.  Buckeve  Refining  Co. 
V.  Kellv,  163  Cal.  8;  Ann.  Cas.  1913E,  840; 
124  Pac.  536. 

Appeal.  Where  the  relative  rights  of 
the  parties  are  determined  on  appeal,  the 
decision  is,  as  to  that  subject  and  to  that 
extent,  the  law  of  the  case.  Haggin  v. 
Clark,  71  Cal.  444;  9  Pac.  736;  12  Pac.  478; 
Davidson  v.  Dallas,  15  Cal.  75;  Leese  v» 
Clark,  20  Cal.  387;  Pico  v.  Cuyas,  48  CaK 
639.  Where,  on  the  rendition  of  a  final 
judgment,  the  court  also  grants  a  perpetual 
injunction,  there  is  but  one  judgment,  and 
the  decree  is  necessarily  included  in  the 
appeal  taken  therefrom.  McGarrahan  v. 
Maxwell,  28  Cal.  75. 

What  deemed  adjudged  in  judgments 
See  note  post,  §  1911. 


§577 


JUDGMENT,   IN   GENERAL. 


608 


Judgment  as  a  contract.  See  note  2  Am.  St. 
Rep.  414. 

CODE  COMMISSIONERS'  NOTE.  The  origi- 
nal section  contained  the  words,  "and  may  be  en- 
tered ill  term  or  vacation."  They  were  omitted, 
first,  because  they  are  not  part  of  the  definition; 
second,  because  the  same  provision  is  contained  in 
the  other  parts  of  this  code.  See,  as  to  supreme 
court,  §48;  district  courts,  §  78 ;  county  courts, 
§  89;  justices'  courts,  §  118. 

1.  Judgment,  defined.  Every  definite  sentence 
or  decision  of  a  court,  by  which  the  merits  of  the 
cause  are  determined,  is  a  judgment.  Belt  v. 
Davis,  1  Cal.  138;  Loring  v.  Illsley,  1  Cal.  24. 
A  judgment  dismissing  an  action  is,  in  effect,  a 
final  judgment  in  favor  of  the  defendant.  Dow- 
ling  V.  Polack,  18  Cal.  625.  An  order  of  the 
county  court  dismissing  an  appeal  is  a  judgment, 
within  the  meaning  of  this  section.  Pearson  v. 
Lovejoy,  35  How.  193;  53  Barb.  407.  A  judg- 
ment may  be  a  final  adjudication  in  different 
senses.  It  may  be  final  as  to  the  court  which 
renders  it,  without  being  final  as  to  the  subject- 
matter.  Although  a  judgment  may  be  final  with 
reference  to  the  court  which  pronounced  it,  and 
as  such  he  the  subject  of  an  appeal,  yet  it  is  not 
necessarily  final  with  reference  to  the  property 
or  rights  affected,  so  long  as  it  is  subject  to  ap- 
peal and  liable  to  be  reversed.  Hills  v.  Sherwood, 
33  Cal.  478;  United  States  v.  Schooner  Peggy,  1 
Cranch,  103;  2  L.  Ed.  49. 

2.  Order,  defined.  See  §  1003  of  this  code. 
Order,  as  distinguished  from  a  final  judgment,  is 
the  judgment  or  conclusion  of  the  court  upon  any 
motion  or  proceeding.  Oilman  v.  Contra  Costa 
County,  8  Cal.  57;  68  Am.  Dec.  290;  Effect  of. 
McKinley  v.  Tuttle,  34  Cal.  235. 

3.  At  -what  time  judgment  should  be  entered. 
If  there  is  no  question  as  to  the  proper  judgment 
to  be  entered,  the  entry  should  be  made  at  once, 
without  waiting-  for  a  motion  for  a  new  trial.  A 
stay  of  proceedings  under  the  judgment  protects 
the  losing  party  in  case  the  judgment  should  be 
set  aside,  or  a  new  trial  be  granted.  Hutchinson 
V.  Bours,  13  Cal.  51. 

4.  Entry  in  vacation.  In  an  action  tried  with- 
out a  jury,  judgment  upon  the  findings  may  be 
entered  in  vacation.  People  v.  Jones,  20  Cal.  50. 
If  the  judgment  is  pronounced  by  the  court,  drawn 
up  in  the  form  intended  to  be  entered,  signed  by 
the  judge,  and  filed  with  the  clerk  before  ad- 
journ;nent  of  the  term,  it  becomes  the  judgment 
of  the  court  of  the  term  at  which  it  was  pro- 
nounced, and  it  may,  by  the  clerk,  be  entered  in 
the  judgment-book  during  vacation.  Casement  v. 
Ringgold,  28  Cal.  335.  Where  a  judgment  is  re- 
versed on  appeal,  with  directions  that  a  certain 
judgment  be  entered  by  the  district  court,  such 
judgment  can  be  entered  by  the  clerk  of  the  dis- 
trict court  in  vacation.  People  v.  Jones,  20  Cal. 
50. 

5.  Judgment  against  executors  and  administra- 
tors. In  an  action  against  an  executor  or  admin- 
istrator upon  a  rejected  claim,  the  judgment 
should  ascertain  the  amount  due,  and  adjudge  the 
same  to  be  a  valid  claim  against  the  estate,  and 
provide  that  it  be  paid  by  the  defendant  in  the 
due  course  of  administration.  No  execution  can 
be  awarded.  Rice  v.  Inskeep,  34  Cal.  224; 
Bacouillat  v.  Sansevain,  32  Cal.  376. 

6.  Judgment  against  married  woman.  A  judg- 
ment may  be  rendered  against  a  married  woman 
for  costs,  in  an  action  brought  by  her  concerning 
her  separate  property;  and  when  so  rendered,  an 
execution  in  the  usual  form  may  be  issued  on  the 
same,  and  her  separate  property  sold  by  the 
sherifT.    Leonard  v.  Townsend,  26  Cal.  442. 

7.  Judgment  against  husband  and  wife.  In  an 
action  against  husband  and  wife  for  services  ren- 
dered \>y  plaintiff  to  tlie  wife,  before  marriage, 
judgment  may  be  rendered  against  both  defend- 
ants, with  directions  that  it  be  enforced  only 
against  the  separate  property  of  the  wife  and  the 
common  property  of  both.  "Van  Maren  v.  John- 
son, 15  Cal.  308. 

8.  Judgment  against  Infants.  It  is  a  question 
wheth*-r,  under  our  practice,  an  infant  is  entitled 
to  have  a  dav  piven  in  the  judgment  to  show  a 
cause  against  it.  An  infant  is  as  much  bound 
by  a  decree  in  equity  as  a  person  of  full  age,  and 


will  not  be  permitted  to  dispute  it,  except  upon 
the  same  ground  as  an  adult  might  have  disputed 
it.  If  fraudulent,  or  obtained  by  collusion,  it 
must  be  attached  in  a  direct  proceeding.  Joyce 
V.  McAvoy,  31  Cal.  273;  89  Am.  Dec.  172. 

9.  Presumptions  in  favor  of  judgments.  Juris- 
diction will  be  presumed  in  the  case  of  a  judg- 
ment of  a  court  of  general  jurisdiction;  but  if  the 
want  of  jurisdiction  appears  on  the  face  of  the 
record  of  the  judgment,  the  judgment  is  void,  and 
it  may  be  attacked  in  a  collateral  proceeding. 
Forbes  v.  Hyde,  31  Cal.  342;  Thompson  v.  Mon- 
row,  2  Cal.  IOC;  56  Am.  Dec.  318;  Kilburn  v. 
Ritchie,  2  Cal.  148;  56  Am.  Dec.  326;  White  v. 
Abernathy,  3  Cal.  426;  Johnson  v.  Sepulbeda,  5 
Cal.  151;  Grewell  v.  Henderson,  7  Cal.  290;  Nel- 
son V.  Lemmon,  10  Cal.  50;  Gray  v.  Hawes,  8 
Cal.  566;  Hahn  v.  Kelly,  34  Cal.  391;  94  Am. 
Dec.  742.  In  favor  of  a  judgment  rendered  by 
a  court  of  general  jurisdiction,  it  will  be  pre- 
sumed, unless  the  contrary  affirmatively  appears, 
that  a  party  to  it  was  made  a  party  to  the  action 
in  some  manner  provided  by  law.  Sharp  v. 
Daugney,    33   Cal.   505. 

10.  Identity.  A  judgment  was  obtained  against 
John  P.  Manrow,  in  New  York,  and  an  action  was 
brought  upon  a  judgment  against  John  P.  Man- 
row,  in  San  Francisco.  The  identity  of  the  per- 
son was  presumed.  Thompson  v.  Manrow,  1  Cal. 
428;   see  also  People  v.  Thompson,  28  Cal.  218. 

11.  Effect  of  judgment.  If  the  court  has  juris- 
diction of  the  subject-matter  and  parties,  its  judg- 
ment, whether  legal  or  illegal,  proper  or  improper, 
is  valid  and  binding,  until  reversed  or  set  aside. 
Reynolds  v.  Harris,  14  Cal.  678;  76  Am.  Dec. 
459;  Hahn  v.  Kellv,  34  Cal.  391;  94  Am.  Dec. 
742;  Kohlman  v.  Wright,  6  Cal.  231.  A  judg- 
ment in  favor  of  plaintiff  against  one  of  several 
defendants,  in  an  action  to  set  aside  a  deed  as  a 
cloud  upon  the  title,  is  an  adjudication  that  the 
title  is  in  the  plaintiff".  Marshall  v.  Shafter,  32 
Cal.  176.  A  judgment  upon  demurrer  is  only  a 
bar  to  a  subsequent  action,  when  it  determines 
the  merits  of  the  case.  Robinson  v.  Howard,  5 
Cal.  428.  The  judgment  of  a  court  of  competent 
jurisdiction,  directly  upon  the  point,  is,  as  a  plea, 
and  as  evidence,  conclusive  between  the  same  par- 
ties, upon  the  same  matter  directly,  in  another 
court  (Love  v.  Waltz,  7  Cal.  250)  ;  but,  as  a  plea, 
it  is  no  bar,  where  the  complaint  in  the  former 
suit  is  so  defective  that  a  judgment  rendered 
thereon  would  be  a  nullity.  Reynolds  v.  Harris, 
9  Cal.  338.  Where  there  is  a  misdescription  of 
a  note,  and  a  want  of  specification  of  the  name 
of  the  owner,  or  of  any  allegation  that  his  name 
is  unknown,  in  the  schedule  of  an  insolvent,  the 
proceedings  in  insolvency  are  no  bar  to  a  suit  on 
the  note,  even  if  the  insolvent  did  not  know  that 
the  plaintiff  was  the  real  creditor.  Judson  v. 
Atwill,  9  Cal.  477.  The  former  judgment  must 
not  only  be  upon  the  same  cause  of  action,  but 
between  the  same  parties.  Uhlfelder  v.  Levy,  9 
Cal.  607;  Chase  v.  Swain,  9  Cal.  136.  Plaintiff 
brought  an  action  of  replevin  against  the  defend- 
ants to  recover  certain  property,  and  obtained  a 
judgment  for  its  restitution  and  damages.  De- 
fendants paid  the  damages,  but  did  not  restore 
the  propertv.  Plaintiff  then  brought  an  action  of 
trover  to  recover  the  value.  Defendants  pleaded 
the  former  recovery  as  a  bar.  It  was  held,  that 
the  judgment  in  replevin  did  not  constitute  a  bar 
to  the  action  of  trover,  it  not  having  been  satis- 
fied. Nickerson  v.  California  Stage  Co.,  10  Cal. 
520.  An  action  brought  by  an  agent,  in  his  own 
name,  for  a  trespass,  in  taking  coin  from  the 
agent,  in  which  action  the  jury  found  that  the 
coin  belonged  to  the  principal,  and  gave  only 
nominal  damages,  is  not  a  bar  to  an  action  by 
the  principal  for  such  coin.  Pico  v.  Webster,  12 
Cal.  140.  A  discharge  in  insolvency  of  a  debt, 
is  a  discharge  of  a  judgment  on  that  debt,  and 
the  costs,  rendered  between  the  time  of  filing  the 
petition  and  schedule  and  the  time  of  discharge. 
Imlay  v.  Carpentier,  14  Cal.  175.  A  judgment  iri 
an  action  to  quiet  title  is  a  bar  to  subsetiuent 
litigation  on  the  same  subject-matter.  Reed  v. 
Calderwood,  32  Cal.  109.  If  two  Mexican  grants 
of  land,  made  to  different  persons,  are  confirmed 
and  surveyed  so  as  to  overlap  each  other  in  part, 
and  the  owner  of  one  becomes  a  party  to  the  pro- 
ceedings  relating   to   the   confirmation   and  survey 


609 


EFFECT  OF  JUDGMENT — RECITALS — COLLATERAL  ATTACKS. 


§577 


of  the  other,  he  is  estopped  from  denyiriK  that 
this  grant  was  properly  located.  Seinple  v.  Wright, 
32  Cal.  659.  A  judeiuent  in  an  action  to  recover 
the  possession  of  real  property  is,  as  to  all  mat- 
ters put  in  isoue  and  passed  on  in  the  action,  con- 
clusive b(>t\veen  the  parties  and  their  privies,  and 
a  liar  in  another  action  between  the  iiarties  or 
their  privies.  Caperton  v.  Schmidt,  26  Cal.  490; 
85  Aiu.  Dec.  187.  Hut  the  bar  is  limited  to  the 
riKhts  of  the  parties  as  they  e.xistcd  at  the  time 
■when  the  judprnieiit  was  rendered,  and  neither  the 
parties  nor  their  privies  are  ptecliided  from  show- 
ing, in  a  subsequent  actinn,  that  their  rights  have 
been  waived  or  extip^inished  at  a  periud  after  the 
rendition  of  the  judgment.  Id.  A  judgment  in 
favor  of  the  plaintiff,  in  an  aftion  of  ejectment, 
does  not  estop  the  defendant  from  maintaining 
an  action  for  the  specific  perfininaiiee  of  a  con- 
tract, made  by  the  plaintiff  before  the  commence- 
ment of  the  action  of  ejectment,  to  convey  the 
same  land  to  the  defendant,  if  the  contract  was 
not  set  up  in  the  answer  as  an  equitable  defense, 
and  passed  upon  by  the  court.  Hough  v.  Waters, 
30  Cal.  309.  In  an  equity  case  when  all  the 
proofs  are  in,  and  the  case  fully  before  the  lower 
and  the  appellate  court,  the  judgment  of  the  lat- 
ter, if  it  passes  upon  the  merits  of  the  contro- 
versy so  presented,  is  conclusive.  Soule  v.  Dawes, 
14  Cal.  249.  If  an  action  is  brought  to  recover 
possession  of  a  lot  of  personal  property,  wrong- 
fully taken  and  detained,  and  if  the  wrongful  tak- 
ing was  one  continuous  act,  a  judgment,  in  that 
action,  will  be  a  bar  to  a  subsequent  suit  for  the 
remainder  of  the  property.  Herriter  v.  Porter,  23 
Cal.  385.  In  an  action  at  law,  the  defendants, 
in  their  answer,  set  up  a  setoff  to  plaintiff's  de- ' 
mand,  and,  on  the  trial  of  the  action,  the  record 
showed  that  the  court  excluded  all  evidence  of 
the  demand  sought  to  be  set  off,  and  gave  judg- 
ment for  plaintiff.  Held,  that  the  judgment  in 
the  action  at  law  cannot  be  pleaded  as  an  es- 
toppel in  an  action  afterwards  brousht  by  the  de- 
fendants in  a  court  of  equity  to  enforce  the  set-off. 
Hobbs  v.  Duff,  23  Cal.  596.  A  judgment  binds 
only  parties  and  privies.  Beckett  v.  Selover,  7 
Cal.  228 ;  68  Am.  Dec.  237.  Except  in  some 
cases  for  specific  purposes.  Davidson  v.  Dallas, 
8  Cal.  227.  A  purchaser  of  land,  subsequently 
to  a  suit  brought  against  his  vendor  to  quiet  title, 
and  to  notice  of  lis  pendens  iiled  in  the  county 
recorder's  office,  is  a  mere  volunteer,  and  is  bound 
by  the  judgment.  Gregory  v.  Haynes,  13  Cal. 
594.  One  in  the  possession  of  land,  who  is  neither 
a  party  nor  a  privy  to  a  judgment  for  the  re- 
covery of  possession,  is  not  bound  by  the  judg- 
ment, nor  can  he  be  dispossessed  by  virtue  of  a 
writ  issued  upon  it,  nor  is  it  evidence  against 
him.  Le  Roy  v.  Rogers,  30  Cal.  229;  89  Am. 
Dec.    88. 

12.  Recitals  in  a  judgment.  The  recitals  in  a 
several  judgment,  against  one  of  a  number  of 
defendants,  that  in  a  former  judgment  in  the 
same  action,  the  name  of  this  defendant  was 
stricken  out  on  plaintiff's  motion,  may  be  contra- 
dicted by  the  recitals  in  the  former  judgment. 
Leese  v.  Clarke,  28  Cal.  33.  The  recital,  that 
summons  was  served,  is  conclusive  of  the  fact  in 
a  collateral  proceeding.  Sharp  v.  Lumley,  34  Cal. 
611.  And,  generally,  as  to  the  effects  of  recitals 
in  judgments,  see  Hahn  v.  Kelly,  34  Cal.  391; 
94  Am.  Dec.  742;  and  Sharp  v.  Daugney,  33  Cal. 
505. 

13.  Void  judgments.  If  it  affirmatively  ap- 
pears, upon  the  face  of  the  record,  that  a  per- 
sonal judgment  of  court  of  general  jurisdiction 
was  rendered  without  the  court  having  acquired 
jurisdiction  over  the  person  of  defendant,  the 
judgment  is  void.  Whitwell  v.  Barbier,  7  Cal. 
54;  Hahn  v.  Kelly,  34  Cal.  ;^91;  94  Am.  Dec. 
742;  Barrett  v.  Carnev,  33  Cal.  530;  Alderson 
V.  Bell,  9  Cal.  315;  McMinn  v.  Whelan,  27  Cal. 
309.  Where  a  summons  was  served  by  a  deputy 
sheriff,  and  returned  with  the  following  signature 
to  the  return,  "Elijah  T.  Cole,  D.  S.,"  and  judg- 
ment was  rendered  by  default,  it  was  held,  that 
the  judgment  was  null  and  void,  for  want  of  ju- 
risdiction. Rowlev  V.  Howard.  23  Cal.  401 ;  see 
Hahn  v.  Kelly,  34  Cal.  391  ;  94  Am.  Dec.  742. 
A  judgment  by  default,  entered  by  the  clerk, 
where   there   has  been   no   service   of   summons   or 

1  Fair.— 39 


appearance,  is  utterly  void.  Glidden  ▼.  Packard, 
2S  Cal.  640.  When  the  clerk  has  authority  to 
enter  judgment  out  of  court  by  default,  but  ia 
the  exnrci.se  of  his  authority  makes  a  mistake 
as  to  the  amount,  the  judgment  is  only  erroneous; 
but  where  he  enters  a  kind  of  judgment  which  he 
has  no  authority  to  enter  witliout  the  direction 
of  the  court,  the  judgment  is  void.  Bond  v. 
Pacheco,  30  Cal.  530:  see  also  Stearns  v.  Aguirre, 
7  Cal.  448.  and  Lewis  v.  Clarkiu,  18  Cal.  399. 
If  a  judgment  is  void  for  want  of  jurisdiction,  it 
is  not  cured  by  the  appearance  of  the  defendant 
for  the  purpose  of  moving  to  set  it  asi<le.  Gray 
V.  Hawes,  8  Cal.  568.  If  the  defendant  was 
served  with  process,  though  he  was  sued  by  a 
wrong  name,  the  judgment  is  not  void.  Welsh  v. 
Kirkpatrick,  30  Cal.  202;  89  Am.  Dec.  85.  A 
judgment  against  an  infant,  which  does  not  give 
the  infant  a  dav  after  arriving  at  age  to  show 
cause  against  it,  is  not,  for  that  reason,  void. 
Joyce  V.  McAvoy,  31  Cal.  273;  89  Am.  Dec.  172. 
14.  Collateral  attacks  on  jurisdiction.  A  judg- 
ment, void  upon  its  face,  may  be  attacked,  any- 
wliere,  directly  or  collaterally,  either  by  parties 
or  strangers.  Forbes  v.  Hyde.  31  Cal.  342;  Whit- 
well V.  Barbier.  7  Cal.  54;  McMinn  v.  Whelan, 
27  Cal.  309;  Hahn  v.  Kelly,  34  Cal.  391;  94 
Am.  Dec.  742.  But  if  it  is  only  erroneous,  it  cau 
only  be  attacked  by  direct  proceedings  against 
the  judgment.  Hahn  v.  Kelly,  34  Cal.  S91  ;  94 
Am.  Dec.  742,  and  cases  cited  supra.  A  judg- 
ment by  default,  if  summons  has  been  served  on 
defendant,  cannot  be  attacked  collaterally  for  an 
irregularity  of  service,  nor  for  a  defective  return. 
The  defendant  must  assert  his  rights  by  appeal 
from  the  judgment.  Dorente  v.  .Sullivan,  7  Cal. 
279.  Where  several  persons,  members  of  a  joint- 
stock  company,  were  sued  as  such,  and  the  ac- 
tion was  discontinued  as  to  B.,  one  of  the  de- 
fendants, and  judgment  was  taken  against  all  the 
others,  upon  which  execution  was  substantially 
issued,  and  the  property  of  one  M.,  who  was  not 
a  party  to  the  suit,  taken  to  satisfy  the  same,  it 
was  held,  that  M.  could  not,  by  suit  in  equity 
against  the  plaintiff  in  the  judgment,  set  it  aside 
upon  the  ground  that  the  discontinuance  of  the 
suit  as  to  B.  was  a  discontinuance  as  to  all  of 
the  defendants,  and  that  the  judgment  could  not 
be  attacked  in  this  collateral  manner.  Markley 
V.  Rand,  12  Cal.  275.  The  recital  in  a  decree, 
"that  defendants  liad  been  served  with  process, 
or  had  waived  service,"  is  sufficient  evidence  that 
the  requisite  proof  was  produced.  In  the  ab- 
sence of  all  evidence  on  this  point,  the  presump- 
tion would  be  in  favor  of  the  jurisdiction  of  the 
court,  and  of  the  regularity  of  its  proceedings; 
and,  for  the  want  of  such  evidence,  the  decree 
cannot  be  impeached  in  a  collateral  action.  Nor 
can  a  decree  be  impeached  collaterally  because 
entered  prematurely.  The  remedy  is  by  a  direct 
proceeding  in  the  action.  Alderson  v.  Bell,  9  Cal. 
315;  Hahn  v.  Kelly,  34  Cal.  391;  94  Am.  Dec. 
742.  Where  a  judgment  was  rendered  by  con- 
fession in  open  court,  upon  an  allegation  of 
indebtedness  and  appearance  of  the  parties,  what- 
ever errors  intervened,  such  errors  cannot,  at 
the  instance  of  one,  not  a  party  to  the  judgment, 
be  invoked  to  set  aside  or  show  the  judgment  a 
nullity.  Cloud  v.  El  Dorado  County,  12  Cal.  128; 
73  Am.  Dec.  526.  A  decree  of  the  probate  court, 
ordering  a  claim  to  be  paid,  rendered  on  petition 
of  the  administrator,  is  final  and  conclusive,  and 
cannot  be  attacked  collaterally  nor  directly,  on 
the  ground  that  the  evidence  on  which  it  was 
rendered  was  insufficient.  Estate  of  Cook,  14  Cal. 
130;  State  v.  McGlynn,  20  Cal.  233;  81  Am. 
Dec.  118.  In  an  action  in  the  district  court, 
on  a  bond  given  in  the  court  of  sessions,  the 
court  of  sessions  having  declared  the  bond  for- 
feited for  non-appearance,  the  sureties  cannot 
defend  on  the  ground  tliat  the  judgment  of  for- 
feiture was  erroneous.  They  cannot  thus  attack 
the  judgment.  People  v.  Wolf,  16  Cal.  385. 
Boards  of  supervisors  are  special  tribunals,  with 
mixed  powers,  administrative,  judicial,  and  legis- 
lative, and  jurisdiction  over  roads,  ferries,  and 
bridges.  Its  judgments  and  orders  can  only  be 
attacked  collaterally,  when  there  is  a  want  of 
jurisdiction.     Waugh   v.    Chauncey,    13    Cal.    12. 


§578 


JUDGMENT,   IN    GENERAL. 


610 


15.  Effect  of  an  alteration.  The  alteration  of 
a  judgmeDt  without  notice,  so  as  to  include  a 
party  not  served  with  process,  if  not  void,  is 
voidable,  at  the  election  of  the  party.  Chester 
V.  Milier,  13  Cal.  561.  Where  the  court  makes 
an  order  requiring  plaintiff  to  appear  at  a  cer- 
tain time  and  show  cause  why  a  judgment  in 
his  favor  should  not  be  set  aside,  and  it  does 
not  appear  that  any  notice  was  given  of  the  time 
at  which  the  matter  was  to  be  heard,  it  is  error 
for  the  court  to  set  aside  the  judgment,   and  its 


order  to  that  eflect  will  be  reversed  on  appeal. 
Vallejo  V.  Green,  16  Cal.  161.  Equity  has  juris- 
diction to  vacate  a  judgment  fraudulently  altered 
to  include  a  defendant  not  served  with  process, 
and  not  originally  included  in  the  judgment. 
Chester  v.  Miller,  13  Cal.  561. 

16.  Effect  of  appeal.  Where  an  appeal  from 
a  judgment  is  taken  to  the  supreme  court,  the 
court  below  loses  control  over  the  judgment,  and 
an  order  amending  it  is  erroneous.  Bryan  v. 
Berry,  8  Cal.  135. 


§  578.  Judgment  may  be  for  or  against  one  of  the  parties.  Judgment 
may  be  given  for  or  against  one  or  more  of  several  plaintiffs,  and  for  or 
against  one  or  more  of  several  defendants ;  and  it  may,  when  the  justice  of 
the  ease  requires  it,  determine  the  ultimate  rights  of  the  parties  on  each 
side,  as  between  themselves. 


striking  out  party.    Ante,  §  473. 

Fresh  parties,  bringing  in.    Ante,  §  389. 

Service  on  one  defendant  out  of  several,  effect 
of.     Ante,  §  414.  ^     ^ 

Joint  debtors,  proceedings  against.  Post, 
§§  989  et  seq.  .     ^ 

Joining  persons  severally  liable  on  same  instru- 
ment.   Ante,  §  383. 

Association,  action  against  persons  under  name 
of.    Ante,  §  388. 

Legislation  §  578.  Enacted  March  11,  18T2 ; 
re-enactment  of  Practice  Act,  §  145  (New  York 
Code,  §  274). 

Scope  of  section.  This  section  has  modi- 
fied the  common-law  rule,  that,  in  a  suit 
against  several  joint  debtors,  the  plaintiff 
must  recover  against  all  or  none,  so  far 
as  to  permit  judgment  against  some  of  the 
defendants,  wherever  the  contract  pur- 
ports to  be  the  contract  of  all  the  parties 
sued,  and  it  turns  out  in  proof  that  only- 
some  are  liable.  Lewis  v.  Clarkin,  18  Cal. 
399;  Morgan  v.  Eighette,  5  Cal.  Unrep. 
397;  4.5  Pac.  260;  People  v.  Frisbie,  18 
Cal.  402;  Shain  v.  Forbes,  82  Cal.  577;  23 
Pac.  198;  Bailey  Loan  Co.  v.  Hall,  110  Cal. 
490;  42  Pac.  962;  Dobbs  v.  Purington,  136 
Cal.  70; -68  Pac.  323;  Zibbell  v.  Southern 
Pacific  Co.,  160  Cal.  237;  116  Pac.  513; 
Clark  v.  Torchiana,  19  Cal.  App.  786;  127 
Pac.  831. 

Judgments  where  there  are  several  plain- 
tiffs. Judgment  may  properly  be  given 
in  favor  of  one  plaintiff  only,  who  is  en- 
titled to  it.  Roberts  v.  Hall,  147  Cal.  434; 
82  Pac.  66.  "Where  a  party,  without  in- 
terest in  the  controversy,  is  improperly- 
joined  as  a  party  plaintiff,  he  should  be 
dismissed  from  the  action,  and  a  judgment 
should  then  be  rendered  in  favor  of  the 
remaining  plaintiffs,  upon  findings  in  their 
favor.  Gillespie  v.  Gouly,  152  Cal.  643; 
93  Pac.  S.'G.  Two  persons,  each  claiming 
a  portion  of  premises  sought  to  be  re- 
leased from  a  mortgage,  and  each  conced- 
ing the  validity  of  the  other's  claim,  may 
join  as  parties  plaintiff  in  an  action  to 
redeem  the  whole  mortgaged  property,  and 
the  ultimate  rights  of  the  plaintiffs,  as  be- 
tween themselves,  may  be  determined  by 
the  judgment.  Wadleigh  v.  Phelps,  149 
Cal.  627;  87  Pac.  93. 

Judgments  where  defendants  are  joined. 
A    several     judgment     may    be     rendered 


against  one  member  of  a  partnership. 
Shain  v.  Forbes,  82  Cal.  577;  23  Pac.  198. 
Where  two  persons  are  sued  jointly  upon 
a  joint  contract,  a  judgment  may  now  be 
rendered  in  favor  of  the  plaintiff  and 
against  one  of  the  defendants,  or  in  favor 
of  one  of  the  defendants  and  against  the 
plaintiff.  Dobbs  v.  Purington,  136  Cal.  70; 
68  Pac.  323;  Rowe  v.  Chandler,  1  Cal. 
167;  Lewis  v.  Clarkin,  18  Cal.  399;  People 
V.  Frisbie,  18  Cal.  402;  Shain  v.  Forbes, 
82  Cal.  577;  23  Pac.  198;  Bailey  Loan  Co. 
V.  Hall.  110  Cal.  490;  42  Pac.  962;  Red- 
wood City  Salt  Co.  v.  Whitney,  153  Cal. 
421;  95  Pac.  885.  Where  an  action  is 
brought  upon  notes,  several  and  joint,  and 
the  prayer  of  the  complaint  is  for  judg- 
ment "against  said  defendants"  for  the 
amount  of  the  notes,  it  is  not  necessary 
that  the  judgment  shall  run  against  the 
defendants  as  copartners,  although  they 
admitted  that  a  copartnership  existed. 
Bailey  Loan  Co.  v.  Hall,  110  Cal.  490;  42 
Pac.  962;  Redwood  City  Salt  Co.  v.  Whit- 
ney, 153  Cal.  421;  95  Pac.  885.  Damages 
cannot  be  severe<l,  where  the  action  was 
for  a  wrong  in  which  both  of  the  defend- 
ants joined.  McCool  v.  Mahoney,  54  Cal. 
491.  Where  an  action  was  brought  against 
a  husband  and  wife,  and  a  verdict  was 
rendered  in  favor  of  the  wife  against  the 
plaintiff,  without  mentioning  the  husband, 
who  had  consented  that  judgment  be  en- 
tered against  him,  a  judgment  entered 
against  the  husband  in  favor  of  the  plain- 
tiff is  proper.  Etter  v.  Hughes,  5  Cal. 
Unrep.  148;  41  Pac.  790.  A  plaintiff  may 
join  all  tort-feasors  as  defendants,  in  an 
action  for  negligence,  but  his  right  to  re- 
cover from  one  so  joined  is  not,  in  any 
degree,  dependent  upon  his  success  as 
against  the  others.  Fowden  v.  Pacific 
Coast  S.  S.  Co.,  149  Cal.  151;  86  Pac.  178. 
In  an  action  for  personal  injuries,  judg- 
ment may  be  given  against  one  defendant 
and  in  favor  of  another  defendant.  Cole 
V.  Roebling  Construction  Co.,  156  Cal.  443; 
105  Pac.  255.  A  judgment  between  co- 
defendants,  in  the  absence  of  any  issues 
upon  which  evidence  may  be  received  or 
findings  made  for  the  support  of  the  judg- 


GU 


APPEAL  BY  ONE  DEFENDANT — STRANGERS, 


§578 


moiit,  is  unauthorized.  Bormingham  v. 
Wilcox,  120  Cal.  467;  52  Pac.  822. 

Effect  of  appeal  by  one  defendant. 
"Where  judgment  is  rendered  against  two 
defendants,  a  defendant  not  aiijioaling  is 
not  affected  by  the  reversal  of  the  judg- 
ment, on  appeal  by  his  co-dofendant.  Nich- 
ols V.  Dunphy,  58  Cal.  G05.  Two  defend- 
ants, who  answer,  and  against  whom  a 
verdict  is  rendered,  cannot  complain  that 
no  judgment  by  default  was  entered 
against  a  third  defendant  who  did  not 
answer.  Golden  Gate  etc.  Mining  Co.  v. 
Joshua  Hendy  Machine  Works,  82  Cal.  ISl; 
23  Pae.  45.  Where  a  verdict  and  judgment 
was  jointly  entered  against  two  defend- 
ants, a  new  trial  granted  as  to  one  of  them 
does  not  vacate  the  judgment  as  to  both. 
Fowden  v.  Pacific  Coast  S.  S.  Co.,  149 
Cal.  151;  86  Pae.  178;  and  see  Eankin  v. 
Central  Pacific  E.  R.  Co.,  73  Cal.  93;  15 
Pae.  57;  Chetwood  v.  California  Nat.  Bank, 
113  Cal.  414;  45  Pae.  704;  Dawson  v. 
Schloss,  93  Cal.  194;  29  Pae.  31;  Grundel 
V.  Union  Iron  Works,  127  Cal.  438;  70  Am. 
St.  Rep.  75;  47  L.  R.  A.  467;  59  Pae.  826. 
The  rule  declared  by  this  section  is  not 
limited  to  actions  in  which  the  defend- 
ants have  appeared  and  answered,  but 
includes  those  in  which  some  of  the  defend- 
ants have  made  default;  the  only  limita- 
tion is,  that,  in  case  of  default,  the  relief 
shall  not  exceed  that  demanded  by  the 
plaintiff.  Baile}'  Loan  Co.  v.  Hall,  110 
Cal.  490;  42  Pae.  962.  This  section  does 
not  apply,  where  it  would  authorize  the 
rendition  of  a  judgment  for  a  party  in 
whose  favor  no  cause  of  action  is  stated 
in  the  complaint,  and  against  a  party  who 
has  had  no  notice  of  any  such  cause  of 
action,  or  any  opportunity  to  meet  it 
(Weinreich  v.  Johnston,  78  Cal.  254;  20 
Pae.  556;  and  see  Cotes  v.  Campbell,  3  Cal. 
191;  Curry  v.  Eoundtree,  51  Cal.  184;  Mc- 
Cord  V.  Seale,  56  Cal.  262);  nor  in  the  case 
of  a  suit  against  a  wife,  where  the  hus- 
band is  joined  as  a  necessary  party  under 
the  express  provisions  of  the  statute,  and 
where  he  has  no  other  interest  in  the  sub- 
ject-matter of  the  litigation;  therefore  it 
is  error  to  enter  judgment  against  the 
wife  before  the  husband  is  served  with 
summons.  McDonald  v.  Porsh,  136  Cal. 
301  ;  G8  Pae.  817. 

Who  may  be  joined  as  defendants.  See 
note  ante,  §  379. 

How  judgment  may  be.  See  note  post, 
§579. 

Rights  of  strangers.  If  judgment  is 
asked  for  a  certain  amount,  with  a  request 
that,  out  of  such  amount,  a  bank  be  paid, 
and  the  very  judgment  asked  is  given, 
the  bank  has  a  beneficial  interest  in  the 
judgment,  though  the  verdict  was  nomi- 
nally in  favor  only  of  the  plaintiff.  .Tohn- 
Bon  V.  Phenix  Ins.  Co.,  152  Cal.  196;  92  Pae. 
182. 


Effect  of  Judgment  against  one  co-trespasBer  aa 
a  bar  to  actions  against  the  others.    See  note  54 

.\lii.    J)rc.    lilM. 

Single  or  separate  Judgments  on  consolidation 

of  causes.     Sic  mitc   .'.   Ann.   <';is.   r>:H. 

CODE  COMMISSIONERS'  NOTE.  See  §  414 
of  this  code.  If  ihorf  are  several  defendants, 
having  no  i-ommunit.v  of  intprest  or  property,  a 
joint  judtcmciit  for  nffirmative  relief  in  tlieir  favor 
is  erroneous.  Patre  v.  Fowler,  39  Cal.  412;  2 
Am.  Kep.  4G2.  In  Stearns  v.  ARuirrc,  0  Cnl. 
182,  it  was  held  that,  in  an  action  brought 
jointly  aRainst  two  defendants,  on  a  joint  and 
several  obligation,  the  entry  of  final  judgment 
on  default  against  one  of  the  defendants  dis- 
charged the  other.  In  cases  of  joint  and  several 
contracts,  the  plaintilT  may  elect  whether  he  will 
sue  the  defendants  severally  or  jointly;  but  plain- 
tiff having  elected  to  treat  his  demand  as  joint 
for  the  purpose  of  the  action,  he  must  be  gov- 
erned by  the  same  rules  which  would  have  ap- 
plied if  his  contract  originally  had  been  joint, 
and  not  joint  and  several;  and  it  is  clearly  error 
to  enter  several  judgments  against  the  defend- 
ants. But  see  Lewis  v.  Clarkin,  18  Cal.  399. 
^Vhe^e  two  persons  are  sued  upon  a  joint  con- 
tract, judgment  may  be  had  in  favor  of  the  plain- 
tilT  against  one  of  the  defendants,  and  in  favor 
of  one  of  the  defendants  against  the  plaintiff. 
Rowe  V.  Chandler,  1  Cal.  167.  Where  two  or 
more  defendants  are  not  liable  jointly,  a  joint 
judgment  against  both  cannot  be  sustained;  so 
held  in  an  action  by  a  lessor  against  two  sub- 
tenants of  the  lessee,  when  it  appeared  that  the 
subtenants  did  not  occupy  any  portion  of  the 
premises  jointly.  Pierce  v.  Minlurn,  1  Cal.  470. 
A  judgment  in  an  action  against  the  sureties  on 
an  oflicial  bond,  for  a  defalcation  of  the  princi- 
pal, should  first  determine  the  amount  of  the 
defalcation,  and  then  proceed  with  a  separate 
judgment  against  each  of  the  sureties  for  the 
full  amount  for  which  he  made  himself  liable  in 
the  bond,  and  costs,  and  with  a  provision  that 
each  judgment  shall  be  satisfied  by  ihe  collection 
or  payment  of  the  amount  of  the  defalcation  and 
costs.  People  v.  Rooney.  29  Cal.  642;  People  v. 
Edwards,  9  Cal.  286.  Where  an  action  is  brousht 
by  one  of  several  persons  claiming  title  from  a 
common  source,  in  his  own  behalf  and  in  behalf 
of  all  others  interested  in  the  same  manner  as 
himself,  on  the  ground  of  fraud,  to  set  aside  a 
deed  executed  to  others  by  the  same  grantor, 
under  whom  plaintiff  claims,  the  parties  named 
in  the  complaint,  for  whose  benefit  the  action  is 
brought,  are  entitled  to  the  benefit  of  the  judg- 
ment declaring  the  deed  fraudulent.  Ilurlbutt  v. 
Butenop,  27  Cal.  54.  Where  a  decision  is  made 
in  an  equitable  action  on  any  particular  subject- 
matter,  the  rights  of  all  persons  whose  interests 
are  immediately  connected  with  that  decision,  and 
affected  by  it,  should  be  provided  for.  McPher- 
son  V.  Parker,  30  Cal.  455;  89  Am.  Dec.  129. 
Where  three  persons  are  sued  on  a  promissory 
note,  given  by  one  of  the  parties  in  the  name  of 
all,  as  partners,  and  the  evidence  fails  to  show 
tire  partnership,  or  the  authority  of  the  party 
making  the  note,  and  one  of  the  parties  is  non- 
suited, a  judgment  taken  against  the  other  two 
was  held  valid.  Stoddart  v.  Van  Dyke,  12  Cal. 
438.  In  a  suit  on  an  account,  against  "Randall 
&  Inos,"  partners,  the  former  only  being  served 
with  process,  a  joint  judgment  was  rendered 
against  both.  Held,  void  as  against  the  party 
not  served.  Inos  v.  Winspear,  18  Cal.  397.  Plain- 
tiff sells  goods  to  C.  on  his  individual  account. 
Subsequently,  C.  directs  plaintiff  to  charge  the 
goods  to  the  joint  account  of  C.  and  J.,  which  is 
done.  Plaintiff  sues  C.  and  J.  jointly.  Proven, 
that  C.  had  no  authority  to  bind  J.  Held,  that, 
although  J.  is  not  liable,  judirment  may  be  ren- 
dered against  C. ;  that  our  statute  has  modified 
the  common-law  rule,  that,  in  a  suit  against  sev- 
eral joint  debtors,  plaintilf  must  recover  against 
all  or  none,  so  far,  at  least,  as  to  permit  judg- 
ment against  a  portion  of  the  defendants,  wher- 
ever the  contract  purports  on  its  face  to  be  the 
contract  of  all  the  parties  sued,  and  it  turns  out 
in  proof  that  a  portion  onlv  are  liable.  Lewis 
V.   Clarkin,    18    Cal.   399.      In"  a   suit   against  two, 


§§579,580 


JUDGMENT,    IN    GENERAL. 


612 


guarantors  of  a  note  bars  the  action  against  the 
others.  The  entire  cause  of  action  is  merged  in 
the  judgment.    Brady  v.  Reynolds,  13  Cal.  31. 


on  a  joint  assessment  for  taxes,  judgment  may 
be  rendered  against  one  of  the  defendants,  if 
the  other  is  not  liable.  People  v.  Frisbie,  18  Cal. 
402.      A     judgment     against    one     or     more    joint 

§  579.  Judgment  may  be  against  one  party  and  action  proceed  as  to 
others.  In  an  action  against  several  defendants,  the  court  may,  in  its  dis- 
cretion, render  judgment  against  one  or  more  of  them,  leaving  the  action 
to  proceed  against  the  others,  whenever  a  several  judgment  is  proper. 

appear   or  answer,   a  finding  that  he  was 
duly  served  is  sufficient  to  show  jurisdic- 


Striking  out  party.    Ante,  §  473. 

Fresh  parties,  bringing  in.    Ante,  §  389. 

Service  on  one  defendant  out  of  several,  effect 
of.    Ante.  §  414.  „  ^.^ 

Joint  debtors,  proceedings  against.  Post,  §§  989 
et  seq.  . 

Joining  persons  severally  liable  on  same  instru- 
ment.   Ante,  §  383. 

Legislation  §  579.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,  §  146  (New  York 
Code,  §  274). 

Judgment  against  one  of  several  defend- 
ants. In  an  action  against  more  than  one 
defendant,  the  court  may  render  judgment 
against  only  one,  when  a  several  judgment 
is  proper.  Madary  v.  Fresno,  20  Cal.  App. 
91;  128  Pac.  340.  The  court  is  authorized 
to  render  judgment  against  one  defendant, 
without  determining  the  liability  of  the 
others.  Kelley  v.  Plover,  103  Cal.  35;  36 
Pac.  1020.  The  court  or  jury  may  find 
against  one  or  more  of  several  defendants, 
but  there  must  be  a  finding  or  verdict  for 
or  against  each  defendant.  McMahon  v. 
Hetch-Hetchy  etc.  By.  Co.,  2  Cal.  App.  400; 
84  Pac.  350.  In  an  action  to  determine 
title,  the  court  may  order  a  continuance 
as  to  one  defendant,  direct  the  trial  to 
proceed  as  to  the  other  defendants,  on  the 
issues  involved,  and  render  a  several  judg- 
ment thereon.  Bell  v.  Staacke,  159  Cal. 
193;  115  Pac.  221.  In  an  action  on  a 
joint  and  several  contract,  the  court  may 
proceed  with  the  trial  against  a  single  de- 
fendant, who  has  voluntarily  appeared, 
and  render  judgment  against  him.  Bell  v. 
Adams,  150  Cal.  772;  90  Pac.  118.  In  an 
action  for  personal  injuries,  against  two 
defendants,  jointly  charged  with  negli- 
gence, a  several  judgment  by  default  may 
be  rendered  against  one  defendant  and  the 
action  proceed  against  the  other.  Cole  v. 
Roebling  Construction  Co.,  156  Cal.  443; 
105  Pac.  255.     Where  a  defendant  fails  to 


tion  and  to  sustain  the  judgment.  Lick 
V.  Stockdale,  18  Cal.  219.  A  several  judg- 
ment may  be  rendered  against  one  of  two 
defendants  sued  upon  a  joint  contract,  who 
was  duly  served,  even  though  the  other 
was  not  served  (Kelly  v.  Bandini,  50  Cal. 
530) ;  and  several  judgments  may  be  en- 
tered, and  at  different  times,  against 
several  defendants  occupying  different  por- 
tions of  property  sued  for  in  ejectment. 
Lick  V.  Stockdale,  18  Cal.  219. 

Joint  judgment,  where  only  one  defend- 
ant served.  A  joint  judgment  against 
several  defendants,  as  copartners,  cannot 
be  rendered,  where  oulv  one  was  served. 
Estell  V.  Chenery,  3  Cal.  467. 

Verdict  and  judgment  vacated  as  to  one 
defendant.  A  verdict  against  several  per- 
sons sued  jointly,  found  erroneous  as  to 
one  of  them,  may  be  vacated  as  to  that 
one,  and  continue  in  force  and  effect  as 
to  the  remaining  defendants.  Clark  v. 
Torehiana,  19  Cal.  App.  786;  127  Pac.  831. 

Validity  of  judgment.  A  judgment  does 
not  depend  upon  the  clerk  performing  his 
duty  in  making  up  the  judgment  roll  or  in 
preserving  the  papers.  Lick  v.  Stockdale, 
18  Cal.  219. 

Who  may  be  joined  as  defendants.  See 
note  ante,  §  379. 

CODE  COMMISSIONERS'  NOTE.  Where  some 
of  the  defendants,  partners,  are  not  served  with 
summons,  tlie  plaintiff  may  proceed  against  those 
served.  Ingraham  v.  Gildemeester,  2  Cal.  88; 
Hirschfield  v.  Franklin,  6  Cal.  607.  A  joint  judg- 
ment in  ejectment,  against  defendants  severally 
in  possession  of  separate  parcels  of  the  land  sued 
for,  is  erroneous.  Leese  v.  Clark,  28  Cal.  26. 
In  an  action  upon  a  joint  or  several  bond,  where 
all  the  obligors  are  made  parties,  the  plaintiff 
may  go  to  trial,  if  he  elect  to  do  so,  before  all 
the  defendants  are  served.  People  v.  Evans,  29 
Cal.  429. 


§  580.  The  relief  to  be  awarded  to  the  plaintiff.  The  relief  granted  to 
the  plaintiff,  if  there  be  no  answer,  cannot  exceed  that  which  he  shall  have 
demanded  in  his  complaint ;  but  in  any  other  case,  the  court  may  grant  him 
any  relief  consistent  with  the  case  made  by  the  complaint  and  embraced 
within  the  issue. 

cases  it  is  extended  to  granting  relief  simi- 
lar to  that  granted  under  a  prayer  for 
general  relief  in  chancery  courts  (.lohn- 
son  v.  Polhemus,  99  Cal.  240;  33  Pac.  908); 
and  the  section  is  but  a  concise  statement 
of  the  rule  observed  uj>on  the  subject  of 
relief  in  courts  of  equity.  Mock  v.  Santa 
Rosa,    126    Cal.    330;     58     Pac.    826.     The 


Legislation  8  580.  Enacted  March  11,  1873; 
based  on  Practice  .\ct,  §  147  (New  York  Code, 
§  27.5),   substituting  "cannot"  for  "shall  not." 

Construction  of  section.  The  relief  pro- 
vided by  this  section  is  confined,  in  case 
of  default,  to  that  demanded  in  the  com- 
plaint, as  was  tha  rule  under  a  prayer  for 
special    relief    in    equity;    while    in    other 


613 


EQUITABLE  RELIEF — MEASURE   OF   RELIEF. 


580 


court  may,  under  this  section,  grant  addi- 
tional relief  under  the  original  complaint, 
without  an  ameiulment  thereof  for  that 
jiurpose  alone  (Kent  v.  Williams,  146  Cal. 
S;  79  Pae.  527);  and  relief  may  be  granted, 
within  the  issues  of  the  complaint,  even 
though  not  specifically  prayed  for.  Secu- 
rity Loan  etc.  Co.  v.  Boston  etc.  Fruit  Co., 
126  Cal.  418;  58  Pac.  941;  59  Pac.  296. 
A  judgment  for  more  relief  than  is  prayed 
for  is  not  void  as  to  the  excess,  and  it 
cannot  be  attacked  in  collateral  proceed- 
ings, although  there  is  no  prayer  for  gen- 
eral relief.  Cohen  v.  Cohen,  150  Cal.  99; 
11  Ann.  Cas.  520;  88  Pac.  267. 

Equitable  relief.  The  circumstance  that 
a  court  of  law,  as  well  as  a  court  of  equity, 
can  hear  and  determine  any  issue  of  fact 
presented  for  adjudication  in  a  proceed- 
ing properly  before  the  court,  has  no 
weight  in  determining  whether  or  not, 
upon  a  particular  state  of  facts,  the  rem- 
edy is  legal  or  equitable.  Angus  v.  Craven, 
132  Cal.  691;  64  Pac.  1091.  Where  a  com- 
plaint praying  for  legal  relief  states  a 
cause  of  action  entitling  the  plaiutitf  to 
equitable  relief,  the  court  may,  on  the 
trial,  permit  the  prayer  to  be  so  amended 
as  to  ask  for  the  appropriate  equitable 
relief.  Walsh  v.  McKeen,  75  Cal.  519;  17 
Pac.  673;  and  see  Grain  v.  Aldrich,  38  Cal. 
514;  99  Am.  Dec.  423.  A  judgment  for 
the  value  of  personal  property,  rather  than 
for  its  possession,  is  proper,  where  the 
action  is  for  a  rescission  of  the  contract, 
on  the  ground  of  false  re[)resentation. 
Stewart  v.  Ilollingsworth,  129  Cal.  177;  61 
Pac.  936.  Rescission  is  only  one  of  the 
remedies  in  case  of  fraud;  and  where  real 
or  personal  property  is  fraudulently  ob- 
tained, the  most  common  and  familiar  re- 
lief granted  by  a  court  of  equity  is  to 
convert  the  party  guilty  of  the  fraud  into 
a  trustee.  More  v.  More,  133  Cal.  489;  65 
Pae.  1044;  Field  v.  Austin,  131  Cal.  379; 
63  Pac.  692.  The  correction  of  a  defect 
in  a  written  instrument,  not  specifically 
pleaded,  may  be  decreed  by  the  court. 
Poledori  v.  Newman,  116  Cal.  375;  48  Pac. 
325.  Where  the  facts  alleged  and  found, 
independently  of  an  allegation  of  and  a 
failure  to  find  upon  fraud,  show  a  mistake 
in  the  description  of  property  purchased, 
the  plaintiff  is  entitled  to  a  reformation 
of  the  deed  to  conform  to  the  intention  of 
the  parties.  Hoffman  v.  Kirby,  136  Cal. 
26;  68  Pac.  321.  A  judgment  in  an  action 
for  the  specific  performance  of  a  contract 
grants  more  relief  than  is  authorized, 
where  it  directs  specific  performance  by 
the  defendant,  and  not  by  the  plaintiff, 
and  enjoins  the  defendant  from  convey- 
ing property  and  from  working  the  same, 
without  reference  to  any  performance  of 
the  contract  by  the  plaintiff.  Ellis  v.  Rade- 
macher,  125  Cal.  556;  58  Pac.  178.  The 
amount  of  recoupment  to  which  the  plain- 
tiff may   in  future   be   entitled  cannot   be 


determined  by  the  judgment  in  an  action, 
the  esi)ecial  object  of  which  is  to  cancel  a 
mortgage,  and  permitting  only  of  the  re- 
lief that  the  deed  be  reformed  so  as  to 
exfiress  the  real  intention  of  the  parties 
with  reference  to  the  property  to  be  in- 
cluded therein.  iIoft"man  v.  Kirbv,  136 
Cal.  26;  68  Pac.  321.  A  judgment  for  the 
transfer  and  delivery  of  securities  is  a 
substantial  compliance  with  this  section, 
where  the  complaiut  set  forth  all  the  facts 
concerning  the  same,  even  though  the 
formal  prayer  of  the  comi)laint  omitte.l 
all  mention  thereof.  Security  Loan  etc. 
Co.  V.  Boston  etc.  Fruit  Co.,  126  Cal.  418; 
58  Pac.  941;  59  Pac.  296.  Where  the 
abatement  of  a  nuisance  was  prayed  for 
in  the  complaint,  an  injunction  against  the 
continuance  of  the  nuisance  is  proper  an<l 
within  the  issues.  Sullivan  v.  Rover,  72 
Cal.  248;  1  Am.  St.  Rep.  51;  13  Pac.  655. 
Where  a  plaintiff  sought  to  prevent  the 
discharge  of  mining  debris  into  certain 
streams,  the  court  is  not  warranted  in  in- 
serting, in  the  decree,  provisions  relating 
to  the  use  of  the  defendants'  water-supply 
on  lands  other  than  theirs,  or  forbidiling 
them  to  sell  their  water-supply  or  prop- 
erty to  purchasers  who  they  know  will  not 
respect  the  rights  of  others.  Yuba  County 
v.  Kate  Hayes  Mining  Co.,  141  Cal.  300; 
74  Pac.  1049.  The  court  has  a  right  to 
remove  a  trustee,  or  to  appoint  another  in 
his  place,  under  a  complaint  setting  up  a 
trust  and  all  facts  connected  with  it, 
alleging  that  the  trustee  had  violated  and 
repudiated  his  trust,  that  he  hml  used 
trust  property  for  his  own  use,  and  that 
he  was  an  unfit  person  to  be  trustee,  where 
issues  were  joined  and  trial  had  upon 
these  averments.  Schlessinger  v.  Mallard, 
70  Cal.  326;  11  Pac.  728.  If  a  plaintiff 
alleges  the  trust  relation,  the  receipt  of 
trust  funds,  and  a  failure  to  account,  he 
has  the  right  to  recover  in  one  action  the 
specific  property  into  which  a  portion  of 
the  fund  is  traced,  and  a  personal  judg- 
ment for  the  remainder  which  cannot  be 
identified;  but  he  cannot  have  a  judgment 
declaring  the  defendant  a  trustee  of  spe- 
cific property  bought  with  trust  funds, 
and  decreeing  such  property  to  be  the 
plaintiff's,  and  also  a  personal  judgment 
for  the  money  invested  by  the  tlefendant 
in  that  property.  Title  Insurance  etc.  Co. 
y.  Ingersoll,  158  Cal.  474;  111  Pac.  360. 

Relief  contingent  on  allegations  and 
prayer  of  complaint.  The  decree  should 
be  definite  and  certain,  and,  where  the  an- 
swer admits  the  allegations  of  the  com- 
l)laint,  grant  no  greater  relief  than  that 
authorized  by  the  complaint.  Ellis  v. 
Rademacher,  125  Cal.  556;  58  Pac.  178. 
The  court  cannot  grant  any  relief  not  war- 
ranted by  the  averments  of  the  complaint, 
whether  admitted  by  legal  effect,  silence 
of  the  party,  or  written  answer.  Ellis  v. 
Rademacher,   125   Cal.   556;    58   Pac.    178; 


§580 


JUDGMENT,   IN   GENERAL. 


614 


Hicks  V.  Murray,  43  Cal.  515;  Carpentier 
V.  Brenham,  50  Cal.  549;  Cummings  v. 
Cummings,  75  Cal.  434;  170  Pac.  442. 
Where  the  complaint  does  not  allege  that 
any  money  is  due,  but  the  answer  presents 
that  issue,  the  case  is  within  this  section. 
O'Donnell  v.  Kramer,  65  Cal.  353;  4  Pac. 
204.  Where  the  relief  granted  is  beyond 
the  issues  embraced  in  the  complaint,  the 
appellate  court  will  modify  the  judgment 
by  striking  out  the  excessive  parts  thereof. 
Yuba  County  v.  Kate  Hayes  Mining  Co., 
141  Cal.  360;  74  Pac.  1049.  The  court  may 
render  judgment  for  the  amount  of  a  note 
and  interest,  although  the  complaint  prays 
only  for  judgment  for  the  face  of  the 
note.  Lane  v.  Gluckauf,  28  Cal.  288;  87 
Am.  Dec.  121.  In  an  action  for  support 
without  divorce,  the  amount  to  be  allowed 
is  an  issuable  fact,  and  cannot  be  made, 
in  the  first  instance,  in  excess  of  the 
amount  asked  for  in  the  complaint.  Ben- 
ton V.  Benton,  122  Cal.  395;  55  Pac.  152; 
Burnett  v.  Stearns,  33  Cal.  468;  Gregory 
V.  Nelson,  41  Cal.  278.  Where,  in  an  ac- 
tion for  conversion,  the  complaint  alleged 
attorneys'  fees  as  an  element  of  damages, 
in  the  absence  of  the  evidence  from  the 
record  it  will  be  presumed  that  the  verdict 
did  not  include  attorneys'  fees.  McDonald 
V.  McConkey,  57  Cal.  325.  A  plaintiff  is 
not  to  be  denied  any  relief,  simply  because 
he  fails  to  prove  that  he  is  entitled  to  the 
full  measure  that  he  claims:  he  may  be 
granted  a  part  of  the  relief  claimed,  if 
it  is  justified  by  the  pleading  and  evi- 
dence. Union  Oil  Co.  v.  Mercantile  Refin- 
ing Co.,  8  Cal.  App.  768;  97  Pac.  919. 
Where  the  plaintiff  claimed  ownership  and 
right  of  possession  of  land,  and  prayed 
that  he  be  adjudged  to  be  such  owner, 
though  he  did  not  allege  that  the  defend- 
ant claimed  some  interest  therein,  nor  call 
upon  him  to  set  forth  his  title,  but  the 
defendant  denied  the  plaintiff's  ownership, 
and  asserted  title  in  himself,  and  where 
the  issues  thus  formed  were  tried  by  the 
jury  and  decided  in  the  plaintiff's  favor, 
the  court  may  properly  give  judgment  ac- 
cordingly. Reiner  v.  Schroeder,  146  Cal. 
411;  80  Pac.  517.  The  prayer  of  the  com- 
plaint must  receive  a  reasonable  inter- 
pretation, and  be  construed  with  reference 
to  the  purposes  and  the  nature  of  the 
action.  Brooks  v.  Can^eutier,  53  Cal.  287. 
The  relief  demanded  does  not  characterize 
the  action,  nor  limit  the  plaintiff  in  re- 
spect to  the  remedy  which  he  may  have. 
Angus  v.  Craven,  132  Cal.  691;  64  Pac. 
1091;  Walsh  v.  McKeen,  75  Cal.  519;  17 
Pac.  673.  Relief  may  be  granted  upon  the 
facts  within  the  issues,  entitling  to  judg- 
ment, irrespective  of  the  ])rayer,  if  the 
evidence  is  sufficient  to  uphold  the  judg- 
ment. Dennison  v.  Chajtman,  105  Cal.  447; 
39  Pac.  61.  Where  the  plaintiff  shows 
himself  to  be  entitled  to  any  relief,  either 
at  law  or  in  equity,  his  coniplaint   is  not 


to  be  dismissed  because  lie  lias  made  a  mis- 
take as  to  the  form  of  his  remedy,  or 
because  he  has  praj'ed  for  a  judgment  to 
which  he  is  not  entitled.  Bedolla  v.  Wil- 
liams, 15  Cal.  App.  738;  115  Pac.  747.  A 
decree  directing  the  sale  of  real  property, 
in  an  action  relating  to  such  property,  may 
be  made  by  the  court,  though  such  relief 
was  not  prayed  for  in  the  original  com- 
plaint. Kent  V.  San  Francisco  Sav.  Union, 
130  Cal.  401;  62  Pac.  620. 

Judgment  under  prayer  for  general  re- 
lief. The  provision  of  this  section,  that 
where  there  is  no  answer  the  relief  granted 
cannot  exceed  that  which  is  demanded  in 
the  complaint,  does  not  make  the  judgment 
void,  where  the  relief  given  is  within  the 
terms  of  a  prayer  for  general  relief,  and 
is  germane  to  the  cause  of  action  stated, 
although  not  authorized  by  the  facts 
alleged.  Cohen  v.  Cohen,  150  Cal.  99;  11 
Ann.  Cas.  520;  88  Pac.  267.  The  court  can 
grant  any  relief  consistent  with  the  case 
made,  and  embraced  within  the  issues, 
although  not  specifically  prayed  for.  Zel- 
lerbach  v.  Allenberg,  99  Cal.  57;  33  Pac. 
786;  More  v.  Finger,  128  Cal.  313;  60  Pac. 
933;  Gimmy  v.  Gimmy,  22  Cal.  633;  Scott 
V.  Sierra  Lumber  Co.,  67  Cal.  71;  7  Pac. 
131;  Hurlbutt  v.  N".  W.  Spaulding  Saw 
Co.,  93  Cal.  55;  28  Pac.  795.  Any  relief 
not  inconsistent  with  the  pleadings  and  the 
issues  tried  may  be  granted  under  a  prayer 
for  general  relief.  Mock  v.  Santa  Rosa, 
126  Cal.  330;  58  Pac.  820.  Where  the  com- 
plaint closes  vv'ith  a  prayer  for  general  re- 
lief, the  fact  that  the  plaintiff  is  not 
entitled  to  all  the  relief  that  he  has  asked 
does  not  justify  a  nonsuit:  the  court 
should  render  such  judgment  as  may  ap- 
pear to  be  proper.  Fox  v.  Hall,  164  Cal. 
287;  128  Pac.  749;  Bell  v.  Solomons,  142 
Cal.  59;  75  Pac.  649.  In  an  action  for 
an  accounting,  there  may  be  a  personal 
judgment  for  the  balance  of  the  money 
found  to  be  due  the  plaintiff,  after  ac- 
counting had.  Title  Insurance  etc.  Co.  v. 
Ingersoll,  158  Cal.  474;  111  Pac.  360.  In 
equity,  under  a  prayer  for  general  relief, 
no  relief  can  be  granted  beyond  that  au- 
thorized by  the  facts  stated  in  the  bill. 
Carjientier  v.  Brenham,  50  Cal.  549;  Cum- 
mings v.  Cummings,  75  Cal.  434;  17  Pac. 
442.  Where  a  suit  is  brought  to  annul 
deeds  on  the  ground  of  undue  influence 
and  frauii,  a  judgment  for  reconveyance  is 
appropriate,  under  a  prayer  for  general 
relief:  the  rigid  rules  relating  to  rescis- 
sion apply  only  to  a  rescission  to  be 
effected  by  the  acts  of  the  parties;  the 
power  of  a  court  of  equity  to  cancel  the 
contract  is  of  much  wider  scope,  and  its 
exercise  governed  by  other  principles. 
More  V.  More,  133  Cal.  489;  65  Pac.  1044. 
And  where,  in  an  action  to  quiet  title, 
brought  by  the  owner  of  an  equitable  es- 
tate against  the  hoMer  of  the  legal  estate, 
the  facts  upon  which  the  plaintiff's  claim 


615 


WHAT  RELIEP  GRANTED^  WHERE  NO  ANSWER  FILED. 


§580 


is  based  are  alleged,  and  there  is  a  prayer 
for  general  relief,  the  court  can  grant  any 
relief  proper  within  the  limitations  of  this 
section.  De  Leonis  v.  Hammel,  1  Cal.  App. 
390;  82  Pac.  349. 

Relief  granted,  where  no  answer  filed. 
The  nature  of  the  action  is  to  be  deter- 
mined from  the  character  of  the  com- 
plaint, and  from  the  character  of  the  judg- 
ment which  might  be  rendered  upon  a 
default  thereto.  McFarland  v.  Martin, 
144  Cal.  771;  78  Pac.  239.  Relief,  other 
than  and  different  from  that  prayed  for 
in  the  complaint  and  specified  in  the  sum- 
mons, is  improper,  where  the  defendant 
defaults.  Mudge  v.  Steinhart,  78  Cal.  34; 
12  Am.  St.  Eep.  17;  20  Pac.  147;  Staacko 
V.  Bell,  125  Cal.  309;  57  Pac.  1012;  Mc- 
Farland V.  Martin,  144  Cal.  771;  78  Pac. 
239.  A  judgment  by  default  cannot  give 
any  relief  in  excess  of  that  demanded  in 
the  complaint;  and  a  default  admits  the 
material  allegations  of  the  complaint,  and 
no  more.  Ellis  v.  Rademacher,  125  Cal. 
556;  58  Pac.  178.  A  decree  pro  confesso 
concludes  a  party,  only  as  to  the  aver- 
ments in  the  bill:  it  does  not  amount  to 
a  confession  of  any  fact  not  alleged  in 
it.  Savings  and  Loan  Society  v.  Horton, 
63  Cal.  105.  A  defaulting  defendant  has 
the  right  to  assume  that  no  relief  will 
be  granted  beyond  that  which  the  com- 
plaint specifically  asks,  and  a  general 
prayer  cannot  enlarge  the  power  of  the 
court  to  grant  relief  not  prayed  for  against 
a  defaulting  defendant;  hence,  a  decree 
granting  relief  beyond  that  authorized  in 
the  complaint  will,  be  reversed,  in  so  far 
as  the  same  is  in  excess  of  the  relief  de- 
manded in  the  complaint.  Staaeke  v.  Bell, 
125  Cal.  309;  57  Pac.  1012.  Relief  against 
a  defaulting  or  disclaiming  defendant 
must  be  consistent  with  the  case  made 
upon  the  complaint  and  embraced  within 
the  issues;  and  a  judgment  rendered 
against  him,  upon  ex  parte  evidence, 
which  departs  in  its  description  of  prop- 
erty from  the  description  thereof  as  set 
forth  in  the  complaint,  or  otherwise  more 
specifically  describes  it,  without  an  amend- 
ment of  the  complaint  to  support  the 
judgment,  is  erroneous.  Balfour-Guthrie 
Investment  Co.  v.  Sawday,  133  Cal.  228; 
62  Pac.  400;  and  see  Holman  v.  Vallejo, 
19  Cal.  498.  In  a  suit  on  a  promissory 
note,  where  no  issue  is  joined  on  the 
question  of  interest,  the  relief  granted 
against  a  defaulting  defendant  cannot  ex- 
ceed that  praved  for  in  the  complaint. 
Brown  v.  Calclwell,  13  Cal.  App.  29;  108 
Pac.  874.  In  an  action  on  a  note,  where 
the  court  made  an  allowance  for  taxes 
on  property  and  for  interest  on  counsel 
fees,  but  the  prayer  of  the  complaint  was 
only  for  five  per  cent  as  counsel  fees,  re- 
lief was  granted  for  an  excess  over  the 
amount  demanded  in  the  complaint.  Par- 
rott  v.   Den,  34  Cal.  79.     The  relief  "de- 


manded in  the  complaint"  refers  to  the 
relief  asked  in  the  prayer, — the  feature 
of  the  pleading  to  which  alone  reference 
may  be  had,  in  default  cases,  to  ascertain 
what  relief  the  plaintiff  seeks;  and  the 
rule  of  the  statute  applies  in  its  strictness 
to  actions  in  foreclosure,  alike  with  those 
of  any  other  character.  Brooks  v.  For- 
rington,  117  Cal.  219;  48  Pac.  1073;  Raun 
v.  Reynolds,  11  Cal.  14;  Gautier  v.  English, 
29  Cal.  165;  Parrott  v.  Den,  34  Cal.  79. 
Counsel  cannot  be  allowed  fees  in  a  fore- 
closure suit,  upon  default,  where  none  are 
specifically  prayed  for,  notwithstanding  a 
prayer  for  general  relief,  and  a  stipulation, 
in  the  mortgage,  making  counsel  fees  a 
charge  secured  by  the  mortgage;  nor  are 
they  recoverable  as  costs  in  the  action. 
Brooks  V.  Forrington,  117  Cal.  219;  48  Pac. 
1073.  In  a  foreclosure  suit,  where  judg- 
ment is  taken  by  default,  the  decree  can 
give  no  relief  beyond  that  demanded  in 
the  bill;  and  a  judgment  is  erroneous,  that 
decrees  a  sale  of  property  in  a  manner 
different  from  that  prescribed  in  the  stat- 
ute, where  the  complaint  simply  asks  a 
foreclosure  of  the  mortgage  and  a  sale 
of  the  property  to  satisfy  the  judgment. 
Raun  V.  Reynolds,  11  Cal.  14.  The  title 
of  the  defendant  to  rents  and  profits,  pend- 
ing foreclosure,  is  in  no  way  affected  by 
the  possession  of  a  receiver,  and  cannot 
be  divested  otherwise  than  by  valid  ad- 
judication; and  where  the  complaint  does 
not  justify  such  adjudication,  the  defend- 
ant being  in  default,  the  court  cannot 
adjudge  the  defendant  divested  of  such 
title.  Garretson  Investment  Co.  v.  Arndt, 
144  Cal.  64;  77  Pac.  770;  Scott  v.  Hotch- 
kiss,  115  Cal.  89;  47  Pac.  45;  Brooks  v. 
Forrington,  117  Cal.  219;  48  Pac.  1073; 
Foley  V.  Foley,  120  Cal.  33;  65  Am.  St. 
Eep.  147;  52  Pac.  122;  Staaeke  v.  Bell, 
125  Cal.  309;  57  Pac.  1012.  Where  the 
only  relief  prayed  for  was,  that  the  de- 
fendant be  enjoined  from  transferring  its 
property  or  mortgages,  an  order,  on  de- 
fault, directing  a  transfer  and  conveyance 
of  the  property  to  a  receiver  is  in  excess 
of  the  relief  asked.  Foley  v.  Foley,  120 
Cal.  33;  65  Am.  St.  Rep.  147;  52  Pac.  122. 
A  judgment  by  default  is  erroneous,  where 
it  awards  interest  from  the  date  of  the 
filing  of  the  complaint,  instead  of  from 
the  date  of  entry  of  judgment.  Gage  v. 
Rogers,  20  Cal.  91.  Where  the  prayer  of 
the  complaint  is,  that  the  defendants  be 
required  to  convey  the  total  amount  of 
land  claimed,  and  the  action  is  dismissed 
as  to  two  defendants,  the  others  being 
required  to  convey  the  total  amount,  the 
relief  granted  is  not  in  excess  of  the  prayer 
of  the  complaint.  Brooks  v.  Carpentier, 
53  Cal.  287.  A  judgment,  rendered  on  de- 
fault, granting  excessive  relief,  is  the  act 
of  the  court,  and  not  of  the  judgment 
creditor;  and  an  action  does  not  lie  to 
quash   the   execution   and  perpetually   en- 


§581 


JUDGMENT,   IN   GENERAL. 


616 


join  the  collection  of  the  judgment,  upon 
the  ground  that  it  was  obtained  by  fraud. 
Murdock  v,  De  Vries,  37  Cal.  527.  Intend- 
ments are  in  favor  of  the  regularity  of 
judgments;  and  where  a  cause  is  appealed 
on  the  judgment  roll,  with  no  bill  of  ex- 
ceptions or  statement,  and  nothing  to  show 
that  the  appellant  ever  asked  for  any 
other  or  further  relief  than  that  prayed 
for  and  received,  he  cannot  be  heard  to 
complain.  Treat  v.  Dorman,  100  Cal.  623; 
35  Pac.  86.  This  section  has  no  applica- 
tion to  questions  or  jurisdiction;  and  a 
judgment,  where  no  answer  is  filed,  ren- 
dered by  a  court  having  jurisdiction  of 
the  subject-matter  and  the  person,  even 
though  exceeding  the  relief  demanded  in 
the  complaint,  is  erroneous  merely,  and 
not  void.  Chase  v.  Christiansen,  41  Cal. 
253.  If  the  defendant  does  not  answer, 
and  the  plaintiff  asks  for  and  receives 
more  relief  than  he  is  entitled  to,  nothing 
more  can  be  predicated  than  that  an  erro- 
neous judgment  was  obtained,  or  one 
absolutely  void  pro  tanto:  if  erroneous, 
the  remedy  is  by  appeal;  and  if  void  pro 
tanto,  by  motion  to  set  it  aside.  Mur- 
dock v.  be  Vries,  37  Cal.  527;  Chipman  v. 
Bowman,  14  Cal.  157;  Logan  v.  Hillegass, 
16  Cal.  200;  Bell  v.  Thompson,  19  Cal.  706; 
Sanchez  v.  Carriaga,  31  Cal.  170. 

Relief  where  answer  filed.  The  court 
may  grant  to  plaintiff  any  relief  consist- 
ent with  the  case  made  by  him,  and 
embraced  within  the  issue,  where  an  an- 
swer is  filed  (Poledori  v.  Newman,  116 
Cal.  375;  48  Pac.  325;  Johnson  v.  Polhemus, 
99  Cal.  240;  33  Pac.  908;  Bedolla  v.  Wil- 
liams, 15  Cal.  App.  738;  115  Pac.  747), 
though  not  specifically  prayed  for  (Denni- 
Bon  V.  Chapman,  105  Cal.  447;  39  Pac.  61; 
Moch  V.  Santa  Rosa,  126  Cal.  330;  58  Pac. 
826;  Johnson  v.  Polhemus,  99  Cal.  240; 
33  Pac.  908);  and  jurisdiction  to  grant 
any  particular  relief  depends,  not  upon 
the  prayer  of  the  complaint,  but  upon  the 
issues  made  by  the  pleadings.  Murphy  v. 
Stelling,  8  Cal.  App.  702;  97  Pac.  672; 
Eeiner  v.  Schroeder,  146  Cal.  411;  80  Pac. 
517. 

Presumptions  in  favor  of  default  judg- 
ment. The  recital  that  a  default  was 
regularly  entered  according  to  law  is  not 


necessarily  based  upon  an  affidavit,  show- 
ing a  publication,  contained  in  the  record; 
it  may  have  been  made  to  appear  to  the 
court  that  another  affidavit  showing  due 
publication  was  filed  within  the  proper 
time,  and  the  recital  may  have  been  based 
upon  that  fact,  and,  in  a  collateral  attack 
upon  the  judgment,  it  will  be  presumed,  in 
support  of  the  judgment,  that  the  recital 
in  the  judgment  was  based  upon  such 
other  affidavit,  and  that  the  same  may 
have  been  lost  or  omitted  from  the  record, 
where  the  record  does  not  purport  to  show 
all  that  was  done,  and  the  judgment  states 
that  all  that  was  necessary  to  be  done 
was  done.  Sacramento  Bank  v.  Montgom- 
ery, 146  Cal.  745;  81  Pac.  138. 

Modification  of  judgment.  An  error  in 
the  judgment,  not  affecting  the  verdict  nor 
requiring  a  new  trial,  may,  and  should, 
be  corrected  by  modifying  the  judgment 
so  as  to  conform  to  the  verdict  read  in 
connection  with  the  pleadings.  Compressed 
Air  Machinery  Co.  v.  West  San  Pablo 
Land  etc.  Co.,  9  Cal.  App.  361;  99  Pac.  531. 

CODE    COMMISSIONERS'    NOTE.      1.  Relief, 

when  judgment  is  by  default.  If  the  judgmeni 
is  by  default,  the  court  cannot  grant  any  greater 
relief  than  that  prayed  for  in  the  complaint  and 
specified  in  the  summons.  Lamping  v.  Hyatt,  27 
Cal.  102;  Gaulier  v.  English,  29  Cal.  165;  Raun 
V.  Reynolds,  11  Cal.  19;  Gage  v.  Rogers,  20  Cal. 
191;  Parrott  v.  Den,  34  Cal.  79;  McComo  v. 
Reed,  28  Cal.  281;  87  Am.  Dec.  115.  If  the 
complaint  does  not  contain  a  prayer  for  a  judg- 
ment in  coin,  a  judgment  by  default  in  coin  can- 
not be  taken.  Lamping  v.  Hyatt,  27  Cal.  102. 
A  judgment  rendered  in  an  action  on  contract  ia 
favor  of  plaintiff  on  the  complaint  alone,  after 
striking  out  an  answer  previously  filed  by  de- 
fendant, is,  in  effect,  a  judgment  by  default,  and 
is  therefore  erroneous  if  rendered  for  a  greater 
amount  than  that  for  which  the  summons  states 
judgment  could  be  taken.  Laltimer  v.  Ryau,  20 
Cal.  628.  A  judgment  entered  by  the  clerk  upon 
default,  for  an  amount  greater  than  is  demanded 
in  the  prayer  of  the  complaint,  and  specified  in 
the  summons,  is  not  void,  but  is  simply  erroneous, 
and  may  be  enforced  until  modified.  Bond  v. 
Pacheco,  30  Cal.  531. 

2.  Relief,  after  issue  joined.  Where  an  answer 
is  filed,  the  court  may  grant  any  relief  consistent 
with  the  case  made  by  the  complaint  within  the 
issue.  San  Francisco  Sav.  &  L.  Soc.  v.  Thomp- 
son, 34  Cal.  76;  Cassacia  v.  Phoenix  Ins.  Co., 
28  Cal.  628.  But  the  facts  proved  or  admitted 
must  clearly  justify  the  relief  granted.  Nevada 
County  etc.   Canal   Co.  v.   Kidd,   37   Cal.  282. 

3.  Mandamus.  Quo  warranto.  The  provisions 
of  this  section  are  applicable  to  proceedings  by 
mandate  and  quo  warranto.  People  v.  Board  of 
Supervisors,  27  Cal.  655. 


§  581.  Action  may  be  dismissed,  or  nonsuit  entered.  An  action  may  be 
dismissed,  or  a  judgment  of  nonsuit  entered,  in  the  following  cases : 

1.  By  the  plaintiff  himself,  by  written  request  to  the  clerk,  filed  with  the 
papers  in  the  case,  at  any  time  before  the  trial,  upon  payment  of  his  costs; 
provided,  a  counterclaim  has  not  been  set  up,  or  affirmative  relief  sought  by 
the  cross-complaint  or  answer  of  the  defendant.  If  a  provisional  remedy 
has  been  allowed,  the  undertaking  must  thereupon  be  delivered  by  the  clerk 
to  the  defendant,  who  may  have  his  action  thereon ; 

2.  By  either  party,  upon  the  written  consent  of  the  other; 

3.  By  the  court,  when  either  party  fails  to  appear  on  the  trial,  and  the 
other  party  appears  and  asks  for  the  dismissal ; 


617 


ACTION  DISMISSED,  OR  NONSUIT  ENTERED,   WHEN. 


§581 


4.  By  the  court,  when,  upon  the  trial  and  before  the  final  submission  of 
the  case,  the  plaintiff  abandons  it; 

5.  By  the  court,  upon  motion  of  the  defendant,  when  upon  the  trial  the 
plaintiff  fails  to  prove  a  sufficient  case  for  the  jury. 

The  dismissals  mentioned  in  subdivisions  one  and  two  hereof  are  made  by 
entry  in  the  clerk's  register.  The  dismissals  mentioned  in  subdivisions 
three,  four,  and  five  of  this  section  must  be  made  by  orders  of  the  court  en- 
tered upon  the  minutes  thereof,  and  are  effective  for  all  purposes  when  so 
entered ;  but  the  clerk  of  the  court  must  note  such  orders  in  his  register  of 
actions  in  the  case. 


Dismissal. 

1.  For  want  of  prosecution.    See  post,  §  583. 

2.  In  Justice's  court.    See  post,  §  890. 

3.  Of    election    contest.     See    post,  §§  1117, 
1122,   1125. 

4.  For    failure    to    give    security    for    costs. 
See   post,    §  1037. 

Variance,  fatal  or  otherwise.    Ante,  §§  469-471. 
Trial,  either  party  may  bring  on.    Post,  §  594. 

Legislation  §  581.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  148,  which  read:  "An 
action  may  be  dismissed,  or  a  judgment  of  non- 
suit entered,  in  the  following  cases:  1.  By  the 
plaintiff  himself,  at  any  time  before  trial,  upon 
the  payment  of  costs,  if  a  counterclaim  has  not 
been  made.  If  a  provisional  remedy  has  been 
allowed,  the  undertaking  shall  thereupon  be  de- 
livered by  the  clerk  to  the  defendant,  who  may 
have  his  action  thereon;  2.  By  either  party,  upon 
the  written  consent  of  the  other;  3.  By  the  court, 
when  the  plaintiff  fails  to  appear  on  the  trial, 
and  the  defendant  appears  and  asks  for  the  dis- 
missal ;  4.  By  the  court,  when  upon  the  trial, 
and  before  the  final  submission  of  the  case,  the 
plaintiff  abandons  it;  5.  By  the  court,  upon 
motion  of  tlie  defendant,  when  upon  the  trial  the 
plaintiff  fails  to  prove  a  sufficient  case  for  the 
jury.  The  dismissal  mentioned  in  the  first  two 
subdivisions,  shall  be  made  by  an  entry  in  the 
clerk's  register.  Judgment  may  thereupon  be  en- 
tered accordingly."  When  enacted  in  1872,  §  581 
read  the  same,  except  for  the  substitution  (1) 
of  "must"  for  "shall,"  after  "undertaking,"  in 
subd.  1,  and  (2)  of  "is"  for  "shall  be,"  after 
"subdivisions." 

2.  Amended    by  Code  Amdts.  1877-T8,  p.  100, 

(1)  substituting  the  word  "provided"  for  "if," 
before  "a  counterclaim";  (2)  inserting  the  clause 
"or  affirmative  relief  sought  by  the  cross-com- 
plaint or  answer  of  defendant." 

3.  Amended  by  Stats.  1885,  p.  76,  (1)  in 
Bubd.    4.    omitting    "final"    before    "submission"; 

(2)  adding  subd.  6,  which  read:  "By  the  court 
when,  after  verdict  or  final  submission,  the  party 
entitled  to  judgment  neglects  to  demand  and  have 
the  same  entered  for  more  than  six  months." 

4.  Amended  by  Stats.  1889,  p.  398,  (1)  in 
subd.  4,  adding  "final"  before  "submission";  (2) 
inserting,  before  "is  made,"  in  subd.  6,  the  words 
"of  this";  (3)  adding  subd.  7,  which  read.  "And 
no  action  heretofore  or  hereafter  commenced  Khali 
be  further  prosecuted,  and  no  further  proceedings 
shall  be  had  therein,  and  all  actions  heretofore  or 
hereafter  commenced  shall  be  dismissed  by  the 
court  in  which  the  same  shall  have  been  com- 
menced on  its  own  motion,  or  on  the  motion  of 
any  party  interested  therein,  whether  named  in 
the  complaint  as  a  party  or  not,  unless  siimmons 
shall  have  been  issued  within  one  year,  and 
served,  and  return  thereon  made  within  three 
years  after  the  commencement  of  said  action,  or 
unless  appearance  has  been  made  by  the  de- 
fendant or  defendants  therein  within  said  three 
years." 

5.  Amended  by  Stats.  1895,  p.  31,  (1)  insert- 
ing "section"  after  "this,"  in  the  second  para- 
graph of  subd.  6;  (2)  changing  the  section,  after 
tho  words  "within  one  j-ear."  in  subd.  7,  to  read, 
"and  all  such  actions  shall  be  in  like  manner 
dismissed,  unless  the  summons  shall  be  served 
and  return  thereon  made  within  three  years  after 


the  commencement  of  said  action.  But  all  such 
actions  may  be  prosecuted,  if  appearance  has 
been  made  by  the  defendant  or  defendants  within 
said  three  years,  in  the  same  manner  as  if  sum- 
mons  had   been   issued    and    served." 

6.  Amended  by  Stats.  1897,  p.  98,  (1)  in- 
serting, in  subd.  1,  the  words  "by  written  re- 
quest to  the  clerk,  filed  among  the  papers  in  the 
case";  (2)  changing  the  last  paragraph  of  subd. 
6,  and  adding  a  new  paragraph,  both  of  which 
comprise  the  two  sentences  following:  "The  dis- 
missals mentioned  in  subdivisions  one  and  two 
hereof  are  made  by  entry  in  the  clerk's  register. 
The  dismissals  mentioned  in  subdivisions  three, 
four,  five,  and  six  of  this  section,  shall  be  made 
by  orders  of  the  court  entered  upon  the  minutes 
thereof,  and  shall  be  effective  for  all  purposes 
wh(  n  so  entered,  but  the  clerk  of  the  court  shall 
note  such  orders  in  his  register  of  actions  in  the 
case." 

7.  Amendment  by  Stats.  1901,  p.  143;  un- 
constitutional.     See  note  ante,  S  5. 

8.  Aniendsd  by  Stats.  1907,  p.  711;  the  code 
commissioner  saying.  "The  amendment  to  subd.  3 
authorizes  the  plaintiff,  as  well  as  the  defendant, 
to  ask  for  the  dismissal  of  an  action  if  his 
adversary  does  not  appear  at  the  trial.  Subd.  6, 
concerning  the  dismisral  of  an  action  because  the 
party  entitled  to  judgment  neglects  to  make  de- 
mand therefor  within  six  months,  is  omitted,  be- 
cause the  changes  made  in  §  664  require  the 
judgment  to  be  entered  by  the  clerk  without  any 
demand  by  either  party.  The  matters  contained 
in  former  subd.  7  are,  with  certain  changes, 
embraced  in  the  new  §  581a." 

Construction  of  section.  This  section 
was  designed  for  the  benefit  of  defendants, 
to  relieve  them  from  the  assertion  of  stale 
demands,  and  to  insure  proper  diligence  in 
the  prosecution  of  asserted  claims  (Pacific 
Paving  Co.  v.  Vizelich,  141  Cal.  4:  74  Pac. 
352);  and,  dealing  with  the  subject  of 
orders  of  dismissal  of  actions,  it  should  be 
held  to  apply  to  all  such  dismissals  (Marks 
V.  Kecnan,  140  Cal.  33;  73  Pac.  751);  and, 
except  as  authorized  by  this  section,  the 
court  cannot  dismiss  an  action,  either  as  an 
entirety  or  as  against  parties:  any  judg- 
ment not  authorized  by  this  section  must 
be  upon  the  merits.  Townsend  v.  Driver,  5 
Cal.  App.  581;  90  Pac.  lOGl.  This  section 
is  inapplicable  to  justices'  courts.  Hub- 
bard V.  Superior  Court,  9  Cal.  App.  16G; 
98  Pac.  394.  The  first  subdivision  cannot 
be  restricted  in  its  meaning  to  trials  of 
merits  after  answer,  for  there  may  be  such 
a  trial  on  a  general  demurrer  to  the  com- 
plaint as  will  effectually  dispose  of  the 
case,  whore  the  plaintiff  has  properly  al- 
leged all  the  facts  that  constitute  his  cause 
of  action;  and  if  the  demurrer  is  sus- 
tained,   he    stands    on    his    own    pleading. 


§581 


JUDGMENT,   IN   GENERAL. 


618 


and  submits  to  judgment  on  the  demurrer, 
and  if  not  sustained,  he  has  his  remedy 
by  appeal;  in  such  a  ease  there  would  be 
a  trial,  within  the  meaning  of  the  code, 
and  the  judgment  would  cut  off  the  right 
of  dismissal,  unless  it  was  first  set  aside 
or  leave  given  to  amend.  Goldtree  v. 
Spreckels,  135  Cal.  666;  67  Pac.  1091;  and 
see  Hancock  Ditch  Co.  v.  Bradford,  13 
Cal.  637;  Brown  v.  Harter,  18  Cal.  76; 
Tregambo  v.  Comknche  Mill  etc.  Co.,  57 
Cal.  501;  Finn  v.  Spagnoli,  67  Cal.  330; 
7  Pac.  746.  The  first  subdivision  relates 
to  dismissals  made  by  the  action  of  the 
plaintiff  alone,  but  the  dismissals  pro- 
vided for  by  the  other  subdivisions  are 
made  by  a  party  only  upon  the  written 
consent  of  the  other,  or  by  the  court  upon 
motion  of  a  party,  or  upon  its  own  motion. 
Boca  etc.  E.  E.  Co.  v.  Superior  Court,  150 
Cal.  153;  88  Pac.  718.  The  auxiliary  verb 
"may,"  in  the  introductory  paragraph, 
cannot  be  read  "must,"  as  applied  to  either 
of  the  first  two  subdivisions  (Eosenthal  v. 
McMann,  93  Cal.  505;  29  Pac.  121);  and 
the  particle  "an,"  qualifying  "action,"  in 
the  same  paragraph,  is  equivalent  to  the 
word  "any";  and  the  provisions  of  the 
section  are  applicable  to  an  action  in  in- 
terpleader, as  well  as  to  other  forms  and 
causes  of  actions.  Kaufman  v.  Superior 
Court,  115  Cal.  152;  46  Pac.  904. 

Entry  of  dismissal  by  clerk.  A  request 
for  a  dismissal  must  be  signed  by  the  at- 
torney of  record  for  the  plaintiff,  if  there 
is  such  an  attorney;  otherwise,  the  clerk 
is  not  authorized  to  recognize  the  same  as 
a  discontinuance  of  the  action,  or  to  make 
an  entry  of  dismissal  in  his  register.  Boca 
etc.  E.  E.  Co.  V.  Superior  Court,  150  Cal. 
153;  88  Pac.  718.  The  entry  of  a  judg- 
ment of  dismissal  is  not  required,  under 
this  section:  the  entry  of  the  order  in  the 
clerk's  register  is  sufiicient.  Hopkins  v. 
Superior  Court,  136  Cal.  552;  69  Pac.  299; 
Huntington  Park  Co.  v.  Superior  Court, 
17  Cal.  App.  692;  121  Pac.  701.  The  clerk 
has  no  authority  to  "order,  adjudge,  and 
decree"  that  an  action  be  dismissed: 
such  an  entry  by  him,  in  his  register,  is 
not  an  entry  of  judgment.  Wolters  v. 
Eossi,  126  Cal.  644;  59  Pac.  143.  A  judg- 
ment to  be  entered  upon  an  order  of  dis- 
missal is  a  judgment  of  the  court,  although 
it  is  to  be  entered  by  the  clerk.  Wolters 
V.  Eossi,  126  Cal.  644;  59  Pac.  143.  A 
judgment  sustaining  the  defendant's  de- 
murrer to  a  complaint,  is  not  a  mere 
dismissal  of  the  action,  but  a  final  deter- 
mination of  the  rights  of  the  parties,  which 
§  668,  post,  requires  to  be  entered  in  the 
judgment-book.  Wood  v.  Missouri  etc.  Ey 
Co.,  152  Cal.  344;  92  Pac.  868.  The  fail- 
ure of  the  clerk  to  enter  the  dismissal  in 
the  register,  and  cause  a  proper  judgment 
of  dismissal  to  be  entered  in  his  judgment- 
book,  cannot  affect  the  substantial  rights 
of  the  parties.   Kaufman  v.  Superior  Court, 


115  Cal.  152;  46  Pac.  904;  Huntington 
Park  Co.  v.  Superior  Court,  17  Cal.  App. 
692;  121  Pac.  701.  The  entry  of  the  order 
of  dismissal  in  the  minute-book  of  the 
court  is,  in  its  nature,  a  final  judgment, 
and  the  time  within  which  an  appeal  may 
be  taken  begins  to  run  from  the  date  of 
that  entry.  Matthai  v.  Kennedy,  148  Cal. 
699;  84  Pac.  37;  and  see  Marks  v.  Keenan, 
140  Cal.  33;  73  Pac.  751;  Pacific  Paving 
Co.  v.  Vizelich,  141  Cal.  4;  74  Pac.  352; 
Swortfiguer  v.  White,  141  Cal.  579;  75  Pac. 
172.  The  order  dismissing  an  action  is  a 
final  judgment;  and  the  neglect  of  the 
clerk  to  register  the  order  of  dismissal 
in  his  register  of  actions  does  not  destroy 
the  effectiveness  of  the  provisions  of  this 
section.  Marks  v.  Keenan,  140  Cal.  33;  73 
Pac.  751.  The  validity  of  an  entry  in  the 
register,  or  of  a  judgment  thereon,  must 
be  decided  by  reference  to  the  pleadings 
in  the  action,  where  such  validity  is  at- 
tacked either  directly  or  collaterally.  Page 
V.  Superior  Court,  76  Cal.  372;  18  Pac.  385. 
The  validity  of  a  judgment  entered  under 
the  first  subdivision  of  this  section  cannot 
be  questioned,  although  the  judgment  is 
entered  by  the  clerk  without  payment  of 
costs.  Hinkel  v.  Donohue,  90  Cal.  389;  27 
Pac.  301;  Kaufman  v.  Superior  Court,  115 
Cal.  152;  46  Pac.  904.  A  mere  order  of 
dismissal,  for  any  statutory  cause,  is  to  be 
entered  in  the  clerk's  register  or  minutes, 
but  the  entry  of  a  final  judgment  must  be 
made  in  the  judgment-book.  Wood  v.  Mis- 
souri etc.  Ey.  Co.,  152  Cal.  344;  92  Pac.  868. 
Action  may  be  dismissed  by  plaintiff 
when.  While  the  plaintiff  has  an  inherent 
and  absolute  right  to  dismiss  his  action, 
yet  such  right  can  be  exercised  only  in 
the  mode  prescribed  by  the  statute,  and 
is  measured  by  the  mode  provided  for  its 
exercise  (Huntington  Park  Improvement 
Co.  v.  Superior  Court,  17  Cal.  App.  692; 
121  Pac.  701);  and  the  only  limitation 
upon  such  right  is,  that  the  defendant  has 
filed  a  counterclaim  or  asked  for  affirma- 
tive relief  (McDonald  v.  California  Tim- 
ber Co.,  2  Cal.  App.  165;  83  Pac.  172; 
Alpers  V.  Bliss,  145  Cal.  565;  79  Pac.  171; 
Thompson  v.  Spraig,  66  Cal.  350;  5  Pac. 
506) ;  and  where  no  affirmative  relief  is 
demanded  by  the  defendant,  the  plaintiff 
has  the  right  to  dismiss  the  action  by 
filing  with  the  clerk  a  written  request 
therefor,  the  effect  of  which  act,  on  his 
part,  is,  ipso  facto,  to  dismiss  the  case. 
Huntington  Park  Improvement  Co.  v.  Su- 
perior Court,  17  Cal.  App.  692;  121  Pac. 
701.  When  it  is  said  that  an  action  may 
be  dismissed  or  a  judgment  of  nonsuit 
entered  by  the  plaintiff  himself,  no  more 
is  meant  than  that  he  may  apply  to  the 
clerk  for  the  entry  of  dismissal  in  the 
clerk's  register  and  a  judgment  accord- 
ingly; and  the  power  of  the  clerk  to  enter 
judgment  depends  upon  his  power  to  make 
an  entry  of  dismissal  in  the  register.    Page 


619 


DISMISSAL    BY    PLAINTIFF — RELIEF    SOUGHT    BY   DEFENDANT. 


§581 


V.  Superior  Court,  76  Cal.  372;  IS  Pac. 
385.  A  voluntary  dismissal,  without  preju- 
dice, at  plaintifV's  costs,  is  proper,  under 
the  first  subdivision  of  this  section,  where 
the  defendant,  after  havinfj  a  default  judg- 
ment set  aside,  had  obtained  leave  to 
answer,  but  had  not  answered  at  the  time 
of  dismissal.  Ilibernia  Sav.  &  L.  Soc.  v. 
Porteuer,  139  Cal.  90;  72  Pac.  16.  The 
ri^ht  of  the  plaintiff  to  have  the  action 
dismissed,  and  the  authority  of  the  clerk 
to  enter  the  judomeut  of  dismissal,  depend 
upon  the  condition  of  the  plcadin;;s  at  the 
time  the  plaintiff  makes  the  request  for 
such  dismissal.  Alpers  v.  Bliss,  145  Cal. 
565;  79  Pac.  171.  The  provision  of  the 
first  subdivision,  concerning  the  dismissal 
of  an  action,  is  not  mandatory  or  exclu- 
sive: the  plaintiff  may  move  for  a  dismissal 
in  open  court,  and  have  an  order  made 
and  entered  v,'ith  the  same  effect  as  though 
made  by  an  entry  in  the  clerk's  register. 
McDonald  v.  California  Timber  Co.,  2  Cal. 
App.  165;  83  Pac.  172.  The  plaintiff  has 
no  right,  and  the  court  has  no  authority, 
to  dismiss  a  cause  tried,  submitted,  and 
taken  under  advisement  by  the  court 
(Ileinlin  v.  Castro,  22  Cal.  100;  Westbay 
V.  Gray,  116  Cal.  660;  48  Pac.  800);  but 
the  court  may  grant  a  dismissal,  on  mo- 
tion of  the  plaintiff,  after  the  case  is  tried 
and  submitted,  where  the  order  of  submis- 
sion was  set  aside  and  leave  given  to 
amend  the  pleadings,  the  ease  then  stand- 
ing as  though  no  submission  had  ever  been 
had.  Westbay  v.  Gray,  110  Cal.  660;  48 
Pac.  800.  Where  proceedings  have  been 
had  under  the  act  of  1909,  authorizing  the 
condemnation  of  property  by  municipali- 
ties for  street  purposes,  there  can  be  no 
dismissal,  under  either  that  act  or  this 
section,  after  the  entry  of  the  interlocu- 
tory judgment  awarding  damages  to  vari- 
ous defendants  because  of  such  taking. 
Title  Insurance  etc.  Co.  v.  Lusk,  15  Cal. 
App.  358;  115  Pac.  53.  In  an  action  of 
eminent  domain,  the  plaintiff  is  entitled 
to  abandon  his  claim  to  the  property  and 
ask  a  dismissal  before  the  expiration 
of  thirty  days  from  the  entry  of  judg- 
ment. Southern  Pacific  R.  R.  Co.  v.  Reis 
Estate  Co.,  15  Cal.  App.  216;  114  Pac.  808. 
There  is  no  right  of  dismissal,  under  this 
section,  where  an  issue  of  law  has  beeu 
tried  upon  demurrer  to  the  complaint,  and 
leave  to  amend  refused:  the  clerk  has  no 
authority  to  enter  a  dismissal,  in  such  a 
case,  upon  the  plaintiff's  order,  and  the 
court  may  set  it  aside.  Goldtree  v.  Spreck- 
els,  135  Cal.  666;  67  Pac.  1091.  The  plain- 
tiff may,  at  any  time  before  trial,  dismiss 
the  action  as  to  some  of  the  defend- 
ants, and  proceed  against  the  others  alone; 
and  after  the  dismissal  the  dismissed  de- 
fendants cannot  contest  the  validity 
or  regularity  of  the  judgment.  Reed  v. 
Calderwood,"22  Cal.  463. 


When  affirmative  relief  is  sought  by 
defendant.  'I'hc  pl.-iintiff  cannot,  n]K>n  his 
own  motion,  dismiss  the  ai-tion,  wiierc  the 
defendant,  by  his  answer,  claims  affirma- 
tive relief  (Robinson  v.  Placerville  etc. 
R.  R.  Co.,  65  Cal.  264;  3  Pac.  878);  nor, 
where  the  defendant,  in  his  answer,  avers 
matters  growing  out  of  the  matters  set 
forth  in  the  complaint  upon  which  he 
seeks  affirmative  relief,  can  the  plaintiff 
dismiss  the  action  upon  his  own  motion, 
without  the  consent  of  the  defcn<lant. 
Clark  v.  Hundley,  65  Cal.  96;  3  Pac.  l.'U. 
A  judgment  of  dismissal  is  a  nullity,  where 
the  defendant,  in  his  answer,  seeks  affirma- 
tive relief.  Thompson  v.  Spraig,  2  Cal. 
Unrep.  346;  4  Pac.  418.  A  counterclaim 
or  cross-complaint,  to  prevent  a  dismissal 
under  the  first  subdivision  of  this  section, 
must  be  one  under  which  the  plaintiff 
would  be  entitled  to  affirmative  relief. 
Mott  V.  Mott,  82  Cal.  413;  22  Pac.  1140, 
1142;  Belleau  v.  Thompson,  33  Cal.  495. 
Where  the  cross-complaint  is  stricken  from 
the  answer,  leaving  therein  matters  of  de- 
fense only,  the  plaintiff  may  dismiss  the 
action  at  any  time  before  trial,  upon  pay- 
ment of  costs.  Thompson  v.  Spraig,  66 
Cal.  350;  5  Pac.  506.  Where  the  defend- 
ant, in  an  action  of  ejectment,  averred 
title  in  himself,  set  up  a  lease  of  the 
premises  in  controversy  by  himself  to  the 
j)laintiff,  and  an  indebtedness  by  the  latter 
for  rent  accruing  under  the  lease,  such 
indebtedness  does  not  constitute  a  coun- 
terclaim (Carpenter  v.  Hewel,  67  Cal.  589; 
8  Pac.  314);  nor  do  matters  set  out  in 
a  cross-bill,  not  arising  out  of  the  trans- 
action set  forth  in  the  complaint,  and  not 
connected  with  the  subject  of  the  action. 
James  v.  Center,  53  Cal.  31.  An  answer 
setting  up  the  defendant's  title,  and  pray- 
ing for  a  decree  to  establish  it,  and  to 
enjoin  the  plaintiff  from  asserting  any  in- 
terest in  the  property  or  interfering  with 
the  defendant's  possession  thereof,  does 
not  prevent  a  dismissal  of  the  action  by 
the  plaintiff  (Wood  v.  Jordan,  125  Cal. 
263;  57  Pac.  998);  but  this  case  was  de- 
cided upon  the  authority  of  Moyle  v. 
Porter,  51  Cal.  639,  without  the  attention 
of  the  court  being  called  to  the  material 
change  of  this  section  since  that  decision, 
and  is  overruled  in  Islais  etc.  Water  Co. 
v.  Allen,  132  Cal.  432,  64  Pac.  713,  where 
it  is  held  that  such  an  answer  docs  not 
seek  affirmative  relief.  An  action  for 
divorce  comes  within  the  purview  of  the 
first  subdivision  of  this  section,  where 
the  defendant  files  a  cross-complaint,  and 
upon  such  cross-complaint  pravs  affirma- 
tive relief.  Mott  v.  Mott,  82  Cal.  413;  22 
Pac.  1140.  A  cross-complainant  cannot 
dismiss  his  cross-complaint  after  the  filing 
of  the  answer  of  the  plaintiff  thereto, 
seeking  the  affirmative  relief  of  a  decree 
that    the    mortgage    therein    set   forth    be 


§581 


JUDGMENT,   IN   GENERAL. 


620 


adjudged  paid  and  satisfied.  Eodgers  v.  ■ 
Parker,  136  Cal.  313;  68  Pac.  975;  Islais 
etc.  Water  Co.  v.  Allen,  132  Cal.  432;  64 
Pac.  713.  The  plaintiff  cannot  be  deprived 
of  his  right  to  a  judgment  of  dismissal 
because  the  defendant  files  a  cross-com- 
plaint after  receiving  notice  of  intention 
to  move  for  an  order  of  dismissal  (Hinkel 
V.  Donohue,  90  Cal.  389;  27  Pac.  301); 
nor  where  the  defendant  files  an  ansvrer 
containing  a  counterclaim,  after  the  order 
dismissing  the  cause  has  been  entered  in 
the  minutes,  but  before  the  actual  entry 
of  the  judgment.  Evans  v.  Johnston,  115 
Cal.  ISO;  46  Pac.  906. 

In  case  of  Intervention.  Where  a  peti- 
tion in  intervention  is  filed  for  the  pur- 
pose, merely,  of  resisting  the  plaintiff's 
claim,  and  there  is  no  counterclaim  or 
cross-complaint,  and  no  affirmative  relief 
sought  by  the  defendant,  the  plaintiff  has 
the  right  to  dismiss  the  action,  both  as 
against  the  defendant  and  the  intervener. 
Henry  v.  Vineland  Irrigation  Dist.,  140 
Cal.  376;  73  Pac.  1061.  An  intervener, 
against  whom  no  relief  is  prayed,  may 
dismiss  his  petition  of  intervention,  and 
this  right  is  not  affected  by  the  fact  that 
one  of  the  plaintiffs  has  died  and  his  suc- 
cessor is  not  brought  in  as  a  party.  Shel- 
don v.  Gunn,  56  Cal.  582.  Where  the 
intervener  could  accomplish  nothing  by  a 
judgment  upon  the  merits,  that  would  not 
be  accomplished  by  the  dismissal  of  the 
action,  the  plaintiff  may  dismiss  the  action. 
Henry  v.  Vineland  Irrigation  Dist.,  140 
Cal.  376;  73  Pac.  1061;  and  see  People  v. 
Perris  Irrigation  Dist.,  132  Cal.  289;  64 
Pac.  399,  773.  A  judgment  rendered 
against  an  intervener  is  erroneous,  where 
he  abandoned  the  contest,  and  was  out  of 
the  ease  by  virtue  of  a  dismissal.  Sheldon 
v.  Gunn,  56  Cal.  582. 

Judgment  of  retraxit.  A  retraxit  oc- 
curred at  common  law  when  a  plaintiff 
came  into  court  in  person  and  voluntarily 
renounced  his  suit  or  cause  of  action; 
when  this  was  done,  and  a  judgment  was 
entered  in  favor  of  the  defendant,  the 
plaintiff's  cause  of  action  was  forever  gone. 
Westbay  v.  Gray,  116  Cal.  660;  48  Pac. 
800;  Hibernia  Sav.  &  L.  Soc.  v.  Portener, 
139  Cal.  90;  72  Pac.  716;  and  see  Board 
of  Commissioners  v.  Younger,  29  Cal.  147; 
87  Am.  Dec.  164;  Merritt  v.  Campbell,  47 
Cal.  542.  Unless  an  order  and  judgment 
directing  a  dismissal  operates  as  a  re- 
traxit, and  so  bars  any  action  by  the  plain- 
tiff for  the  same  cause,  the  defendant  is 
not  aggrieved  thereby.  Stoutenborough  v. 
Board  of  Education,  104  Cal.  664;  38  Pac. 
449.  A  judgment  of  dismissal,  entered 
without  prejudice,  at  plaintiff's  costs,  is 
not  a  judgment  on  the  merits,  and  is  not  a 
bar  to  a  subsequent  action,  and  conse- 
quently not  an  estoppel  under  §  1908,  post. 
Hibernia  Sav.  &  L.  Soc.  v.  Portener,  139 
Cal.  90;  72  Pac.  716.     A  judgment  of  dis- 


missal of  a  suit  brought  by  a  plaintiff  in 
a  Federal  court,  for  want  of  jurisdiction 
or  right  of  the  plaintiff  to  sue  in  that 
court,  is  not  res  adjudicata  as  to  the  causa 
of  action  upon  the  merits,  nor  a  bar  to  an- 
other action,  for  the  same  cause,  brought 
by  the  same  plaintiff  in  a  state  court. 
Wills  V.  Pauly,  116  Cal.  575;  48  Pac.  709. 
The  power  to  make  a  retraxit,  under  our 
statute,  is  conferred  upon  the  attorney  of 
record  in  the  case.  Merritt  v.  Campbell, 
47  Cal.  542.  A  judgment  of  dismissal  is 
a  nullity,  where  the  defendant,  in  his  an- 
swer, seeks  aflSrmative  relief  (Thompson 
V.  Spraig,  2  Cal.  Unrep.  346;  4  Pac.  418); 
and  the  judgment  relates  to  the  date  of 
the  legal  demand  for  the  dismissal  of  the 
action,  where  necessary  to  preserve  the 
substantial  rights  of  the  parties.  Kaufman 
V.  Superior  Court,  115  Cal.  152;  46  Pac. 
904.  The  mode  pointed  out  in  the  first 
subdivision  of  this  section  is  not  manda- 
tory, nor  exclusive  of  the  power  of  the 
court  to  grant  an  order  of  dismissal,  which, 
when  procured  by  the  plaintiff,  should  be 
noted  by  the  clerk  in  the  register  of  ac- 
tion. Richards  v.  Bradley,  129  Cal.  670; 
62  Pac.  316;  and  see  Hinkel  v.  Donohue,  90 
Cal.  389;  27  Pac.  301;  Westbay  v.  Gray, 
116  Cal.  660;  48  Pac.  800. 

Dismissal  by  written  consent.  A  com- 
plaint, stricken  out  by  consent  of  both 
parties,  is  properly  followed  by  a  dismissal 
of  the  proceedings.  Smith  v.  Ling,  73  Cal. 
72;  14  Pac.  390.  Where  there  is  an  attor- 
ney of  record,  the  written  consent  that 
the  action  be  dismissed  must  come  from 
him  or  be  sanctioned  by  him,  and  no  stipu- 
lation as  to  the  conduct  or  disposal  of 
the  action  will  be  entertained  by  the  court, 
unless  the  same  is  signed  or  assented  to 
by  the  attorney  of  record;  the  party  to 
the  action  may  appear  in  his  own  proper 
person  or  by  his  attorney,  but  he  cannot 
do  both,  and  if  he  appears  by  his  attor- 
ney, he  must  be  heard  through  him.  Board 
of  Commissioners  v.  Younger,  29  Cal.  147; 
87  Am.  Dec.  164.  A  judgment  of  dismissal 
is  invalid,  where  the  plaintiff,  without  the 
knowledge  or  consent  of  his  attorney  of 
record,  signed  and  delivered  to  the  defend- 
ant's attorney  a  written  stipulation  au- 
thorizing the  dismissal  of  the  action  and 
judgment  was  entered  accordingly.  Toy 
V.  Haskell,  128  Cal.  558;  79  Am.  St.  Rep. 
70;  61  Pac.  89. 

Dismissal  for  failure  to  appear  at  trial. 
Upon  failure  of  the  plaintiff  to  appear  at 
the  trial,  the  defendant  is  not  bound  to 
take  a  dismissal  of  the  action,  though  he 
may  do  so,  where  he  has  set  up  a  coun- 
terclaim, and  he  has  the  right  to  proceed 
with  the  case  and  have  a  final  judgment 
entered.  Cluue  v.  Quitzow,  125  Cal.  213; 
57  Pac.  886.  A  court  should  not,  under 
the  third  subdivision  of  this  section,  dis- 
miss an  action,  in  which  an  issue  of  fact  is 
joined,  for  the  failure  of  the  plaintiff  to 


621 


NONSUIT   GRANTED   WHEN. 


§581 


aj)i>ear  at  the  trial,  except  upon  proof 
that  the  ])laintiff  has  had  five  days'  notice 
of  such  trial,  as  prescribed  in  §  594,  post. 
Estate  of  Dean,  149  Cal.  487;  87  Pac.  13. 
Whore  the  plaintiff  fails  to  apficar  at  the 
time  set  for  trial,  a  .iudf^mont  of  dismissal 
of  the  action  for  want  of  prosecution  is 
not  an  adjudication  of  the  cause  upon  its 
merits,  and  is  not  a  bar  to  another  action 
for  the  same  cause:  not  having  the  ele- 
ments to  constitute  a  bar  to  another 
action,  it  has  not  the  elements  to  sup- 
port a  plea  in  abatement.  Pyle  v.  Piercy, 
122  Cal.3S.3;  55  Pac.  141. 

Nonsuit  may  be  granted  in  what  classes 
of  cases.  The  court  has  authority  to  ^rant 
a  judgment  of  nonsuit,  only  in  certain 
cases  specified,  llanna  v.  De  Garmo,  140 
Cal.  172;  73  Pac.  830.  The  rules  of  non- 
suit are  the  same,  whether  the  trial  is  by 
the  court  or  bv  a  jury.  Freese  v.  Hibernia 
Sav.  &  L.  Soc".,  139  Cal.  392;  73  Pac.  172; 
Goldstone  v.  Merchants'  lee  etc.  Co.,  123 
Cal.  625;  56  Pac.  776;  Marrou  v.  Marron, 
19  Cal.  App.  326;  125  Pac.  914.  In  de- 
termining a  motion  for  a  nonsuit  upon 
the  close  of  contestant's  case,  in  a  will 
contest,  the  same  rules  apply  as  in  civil 
cases.  Estate  of  Dalv,  15  Cal.  App.  329; 
114  Pac.  787. 

Nonsuit,  granted  at  what  stage  of  the 
action.  At  common  law,  it  was  the  right 
of  the  plaintiff  to  take  a  nonsuit  at  any 
time  before  the  jury  retired,  and  this  sec- 
tion has  not  altered  the  rule.  Planeock 
Ditch  Co.  V.  Bradford,  13  Cal.  637.  This 
section  does  not  give  an  absolute  right  to  a 
nonsuit  after  the  case  has  been  submitted 
and  the  jury  has  retired,  but  the  right 
does  exist  at  any  time  before  such  sub- 
mission and  retirement.  Browm  v.  Harter, 
18  Cal.  76;  Heinlin  v.  Castro,  22  Cal.  100. 
A  nonsuit  can  properly  be  granted  after 
the  evidence  on  both  sides  is  closed  (Tou- 
louse v.  Pare,  103  Cal.  251;  37  Pac.  146; 
Geary  v.  Simmons,  39  Cal.  224;  Vander- 
ford  v.  Foster,  65  Cal.  49;  2  Pac.  736);  but 
this  section  does  not  purport  to  warrant  a 
nonsuit,  except  upon  a  motion  of  the  de- 
fendant wheu,  upon  the  trial,  the  plaintiff 
fails  to  prove  a  sufficient  case.  Saul  v. 
Moscone,  16  Cal.  A[iii.  506;  118  Pac.  452. 

Nonsuit  for  failure  to  prove  cause  of 
action.  Where  the  plaintiff  introduces 
proof  enough  to  make  out  a  prima  facie 
case  under  his  pleading,  a  motion  for  a 
nonsuit,  at  the  close  of  his  case,  should  be 
denied.  Estate  of  Daly,  15  Cal.  App.  329; 
114  Pac.  787.  The  defendant's  motion  for 
a  nonsuit  is  properly  denied,  where  the 
])laintiff  makes  out  a  prima  facie  case 
(Creditors'  Union  v.  Lundy,  16  Cal.  App. 
567;  117  Pac.  624);  and  also  where  there 
is  any  evidence  of  a  substantial  nature, 
supporting  the  cause  of  action  alleged  in 
the  complaint.  McE'wen  v.  Occidental  Life 
Ins.  Co.,  20  Cal.  App.  477;  129  Pac.  598. 
The  case  is  properly  dismissed,  where  the 


plaintiff  refuses  to  offer  any  testimony  in 
support  of  his  complaint  (Stewart  v.  Stew- 
art, 156  Cal.  651;  105  Pac.  955);  and  non- 
suit is  jiroperly  granted,  where  no  evidence 
is  introduced  by  him,  tending  to  prove  a 
particular  issue  material  to  the  case. 
Sepulveda  v.  Sepulve.la,  128  Cal.  661;  61 
Pac.  272.  In  an  action  upon  a  fire-insur- 
ance policy,  where  no  breach  of  the  con- 
tract evidenced  by  the  policy  existed  at 
the  time  of  suit  brought,  and  where  the 
plaintiff  introduces  the  policy  in  eviilence 
at  the  trial,  the  court  errs  in  refusing  a 
motion  for  a  nonsuit  at  the  conclusion  of 
the  jdaintiff's  testimonv.  Irwin  v.  Insur- 
ance Co.,  16  Cal.  App.  "l43;  116  Pac.  291. 
In  an  action  by  a  corporation  to  recover 
money  alleged  to  have  been  misappropri- 
ated by  its  president,  a  nonsuit  is  jiroperly 
granted  where  the  misai)proi)riation  is  not 
proved.    Hercules  Oil  etc.  Co.  v.  Ilocknell, 

5  Cal.  App.  702;  91  Pac.  341.  A  motion 
for  a  nonsuit  should  be  granted  for  failure 
of  proof  of  cause  of  action  alleged,  and 
such  motion  is  not  waived  by  the  subse- 
quent introduction  of  evidence  by  the  de- 
fendant, which  does  not  change  the  status 
of  the  case,  nor  supply  any  defect  in  the 
plaintiff's  case,  as  pointed  out  on  the  mo- 
tion for  nonsuit.  Elmore  v.  Elmore,  114 
Cal.  516;  46  Pac.  458;   Smith  v.  Compton, 

6  Cal.  24;  Winans  v.  Hardenbergh,  8  Cal. 
291;  Abbey  Homestead  Ass'n  v.  Willard, 
48  Cal.  614;  Iliggins  v.  Eagsdale,  83  Cal. 
219;  23  Pac.  316.  A  nonsuit,  in  an  action 
for  negligence,  can  be  granted  only  when 
the  facts  are  undisputed,  and  are  such  that 
but  one  conclusion  can  be  drawn  from 
them;  and  the  question  is  one  of  law  for 
the  court.  Hanley  v.  California  Bridge  etc. 
Co.,  127  Cal.  232;  47  L.  R.  A.  597;  59  Pac. 
577.  Where  the  plaintiff,  in  an  action 
for  personal  injuries,  was,  as  a  matter  of 
law,  guilty  of  contributor}'  negligence,  the 
court  should  grant  a  nonsuit  (Pavne  v. 
Oakland  Traction  Co.,  15  Cal.  App.  127; 
113  Pac.  1074);  but  where  the  plaintiff's 
evidence  shows  a  violation  of  the  law  of 
the  road,  and  he  is  not  chargeable,  as  a 
matter  of  law,  with  contributory  negli- 
gence, a  motion  for  a  nonsuit,  at  the  close 
of  his  evidence,  is  properly  denied.  Mc- 
Kernan  v.  Los  Angeles  Gas  etc.  Co.,  16 
Cal.  App.  280;  116  Pac.  677.  Upon  a  con- 
test of  a  will  and  codicil,  executed  at  dif- 
ferent dates,  there  may  be  a  nonsuit  as 
to  either  branch  of  the  case,  where  the 
evidence  is  insufficient,  and  the  party  in 
whose  favor  it  is  rendered  is  entitled  to  a 
judgment  thereon.  Estate  of  Eicks,  160 
Cal.  450;  117  Pac.  532.  Error  in  admit- 
ting evidence  cannot  be  reviewed  on  a  mo- 
tion for  a  nonsuit;  and  where  the  evidence 
admitted  substantially  tends  to  prove  all 
the  facts  essential  to  the  plaintiff's  cause 
of  action,  the  nonsuit  is  properly  denied 
(O'Connor  v.  Hooper,  102  Cal.  528;  36  Pac. 
939) ;  and  a  nonsuit  is  also  properly  denied, 


§581 


JUDGMENT,   IN    GENERAL. 


622 


where  the  defendant  expressly  admits  that 
the  claim  sued  on  was  presented  to  and 
rejected  by  him,  and  there  is  evidence 
sufficient  to  justify  and  sustain  the  demand 
(Warren  v.  McGill,  103  Cal.  153;  37  Pac. 
144) ;  and  a  nonsuit  should  be  denied  where 
the  evidence,  and  the  presumptions  reason- 
ably arising  therefrom,  are  legally  suffi- 
cient to  prove  the  material  allegations  of 
the  complaint  (Goldstoue  v.  Merchants' 
Ice  etc.  Co.,  123  Cal.  625;  56  Pac.  776;  De 
Eo  v.  Cordes,  4  Cal.  117;  McKee  v.  Greene, 
31  Cal.  41S;  Alvarado  v.  De  Cells,  54  Cal. 
588;  Felton  v.  Millard,  81  Cal.  540;  21  Pac. 
533;  22  Pac.  750;  Higgins  v.  Ragsdale,  83 
Cal.  219;  23  Pac.  316);  and  also  where 
there  is  any  evidence  to  sustain  the 
plaintiff's  case,  without  passing  upon  the 
sufficiency  of  the  evidence  (Zilmer  v.  Ge- 
richten.  111  Cal.  73;  43  Pac.  408;  Felton  v. 
Millard,  81  Cal.  540;  21  Pac.  533;  22  Pac. 
750) ;  and  also  where  the  plaintiff  makes 
out  a  prima  facie  case,  and  there  is  no 
material  variance  between  the  averments 
and  the  proofs.  Chapman  v.  Neary,  115 
Cal.  79;  46  Pac.  867.  An  order  granting 
a  nonsuit  and  dismissing  the  action,  after 
the  cause  was  submitted  upon  briefs, 
but  granted  before  the  time  for  present- 
ing the  reply  brief  expired,  is  harmless, 
where,  upon  the  case  made,  the  plaintiff 
was  not  entitled  to  recover.  Vincent  v. 
Pacific  Grove,  102  Cal.  405;  36  Pac.  773. 
The  court  may  dismiss  the  action  as  to 
one  defendant,  where  no  case  is  made 
against  him,  notwithstanding  the  action 
proceeded  as  between  the  plaintiff  and  the 
other  defendants.  Eowe  v.  Simmons,  113 
Cal.  688;  45  Pac.  983. 

Nonsuit  where  case  is  insufficient  for 
jury.  Ordinarily,  a  nonsuit  can  be  granted 
only  in  the  cases  specified  by  law,  and 
upon  motion,  but  error  in  taking  from 
the  jury  the  issue  of  undue  influence,  in 
a  will  contest,  is  without  prejudice,  where 
the  contestant  totally  failed  to  make  out 
a  case,  and  the  defect  in  his  case  was 
incurable.  Estate  of  Higgins,  156  Cal. 
257;  104  Pac.  6.  To  justify  the  submis- 
sion of  a  question  of  fact  to  the  jury,  the 
proof  must  be  sufficient  to  raise  more 
than  a  mere  conjecture  or  surmise  that 
the  fact  is  as  alleged:  it  must  be  such  that 
a  rational  mind  can  reasonably  draw  the 
conclusion  that  tlie  fact  exists.  Janin  v. 
London  etc.  Bank,  92  Cal.  14;  27  Am.  St. 
Eep.  82;  14  L.  E.  A.  320;  27  Pac.  1100. 
A  motion  for  a  nonsuit  is  properly  de- 
nied, where  the  evidence  entitles  the  plain- 
tiff to  go  to  the  jury  on  an  issue  stated 
(Gilliam  v.  Brown,  f26  Cal.  160;  58  Pac. 
466) ;  and  also  where  there  is  sufficient 
testimony  to  justify  the  court  in  submit- 
ting the  facts  to  the  jury.  Anderson  v. 
Hinshaw,  110  Cal.  682;  43  Pac.  389. 
Where  it  does  not  appear  that  the  plaintiff 
failed  to  prove  a  sufficient  case  for  the 
jury,   nor    that   the   defendant   moved   for 


a  judgment  of  nonsuit,  a  judgment  for  the 
defendant  cannot  be  treated  as  a  judgment 
of  dismissal,  under  the  fifth  subdivision  of 
this  section.  Hancock  v.  Lopez,  53  Cal. 
362.  Where  the  evidence  adduced  by  the 
plaintiff  is  not  sufficient  to  justify  a  ver- 
dict in  his  favor,  it  is  proper  for  the 
court,  in  effect,  to  grant  a  nonsuit  by  re- 
fusing to  submit  special  issues  to  the 
jury,  and  to  order  them  discharged.  Estate 
of  Morey,  147  Cal.  495;  82  Pac.  57.  A 
motion  for  a  nonsuit  should  be  granted, 
where  a  verdict  in  favor  of  the  plaintiff 
would  be  set  aside  for  want  of  evidence 
to  support  it,  and,  in  the  absence  of  a 
jury,  where  the  evidence  is  insufficient  to 
support  a  judgment  for  the  plaintiff 
(Downing  v.  Murray,  113  Cal.  455;  45  Pac. 
869);  and  whenever  the  evidence  intro- 
duced by  the  plaintiff  so  conclusively  es- 
tablishes a  defense  as  that  the  court  might 
properly  grant  a  new  trial  in  case  of  a 
verdict  in  his  favor  upon  like  evidence  the 
court  may  direct  a  judgment  of  nonsuit 
(Goldstone  v.  Merchants'  Ice  etc.  Co.,  123 
Cal.  625;  56  Pac.  776;  McQuilken  v.  Cen- 
tral Pacific  R.  E.  Co.,  50  Cal.  7);  but  not 
where  there  is  any  substantial  evidence, 
which,  with  the  aid  of  all  legitimate  infer- 
ences favorable  to  the  plaintiff,  would 
support  a  verdict  or  finding  that  the 
material  allegations  of  the  complaint  are 
true  (Burr  v.  United  Eailroads,  163  Cal. 
663;  126  Pac.  873);  nor  where  the  plain- 
tiff's evidence  would  be  held  sufficient,  on 
appeal,  to  support  a  judgment  upon  a  ver- 
dict in  his  favor.  Freese  v.  Hibernia  Sav. 
&  L.  Soc,  139  Cal.  392;  73  Pac.  172. 

Evidence,  how  considered  on  motion  for 
nonsuit.  The  motion  for  a  nonsuit  admits 
the  truth  of  the  plaintiff's  evidence,  and 
every  inference  of  fact  that  can  be  legiti- 
mately drawn  therefrom;  and,  upon  such 
motion,  the  evidence  should  be  interpreted 
most  strongly  against  the  defendant.  Han- 
lev  V.  California  Bridge  etc.  Co.,  127  Cal. 
232;  47  L.  E.  A.  597;  59  Pac.  577;  Gold- 
stone  V.  Merchants'  Ice  etc.  Co.,  123  Cal. 
625;  56  Pac.  776;  Estate  of  Ricks,  160 
Cal.  450;  117  Pac.  532;  Estate  of  Daly,  15 
Cal.  App.  329;  114  Pac.  787;  Larson  v. 
Larson,  15  Cal.  App.  531;  115  Pac.  340; 
Christenson  Lumber  Co.  v.  Buckley,  17 
Cal.  App.  37;  118  Pac.  466;  Marron  v. 
Marron,  19  Cal.  App.  326;  125  Pac.  914. 
A  motion  for  a  nonsuit  should  never  be 
granted,  where  there  is  a  conflict  in  the 
eAddence.  Pacific  Mut.  Life  Ins.  Co.  v. 
Fisher,  109  Cal.  566;  42  Pac.  154.  A  con- 
flict of  evidence  as  to  a  fact  is  a  question 
for  the  jury:  it  should  not  be  determined 
by  the  court  as  a  matter  of  law,  on  mo- 
tion for  a  nonsuit.  Burr  v.  United  Rail- 
roads, 163  Cal.  663;  126  Pac.  873.  A 
motion  for  a  nonsuit  should  be  denied, 
where  there  is  any  substantial  evidence 
tending  to  prove  the  plaintiff's  case,  with- 
out  passing   upon   the   sufficiency   of   such 


623 


NONSUIT — REQUISITES  OF   MOTION   P^OR,   ETC. 


§581 


evidence.  Marron  v.  Marron,  19  Cal.  App. 
326;  125  Pae.  914;  Larson  v.  Larson,  15 
Cal.  App.  534;  115  Pac.  340.  A  motion  for 
a  nonsuit,  directed  "to  all  the  causes  of 
action  mentioned  in  the  complaint,"  is 
not  tenable,  unless,  as  to  all,  there  is  a 
failure  of  evidence.  Pacific  Vinegar  etc. 
Works  V.  Smith,  152  Cal.  507;  93  Pac.  85. 
Where  a  motion  for  a  nonsuit  for  want  of 
testimony  upon  any  material  fact  has  been 
erroneously  overruled,  and  the  defendant 
proceeds  and  supplies  the  defect  by  evi- 
dence which  he  himself  introduces,  the 
error  is  waived.  Lowe  v.  San  Francisco 
etc.  Ey.  Co.,  154  ('al.  573;  98  Pac.  678. 

Nature  and  effect  of  motion  for  nonsuit. 
A  motion  for  a  nonsuit  admits  the  truth 
of  all  evidence  in  favor  of  the  plaintiff, 
together  with  every  inference  or  presump- 
tion legitimately  deducible  therefrom  (Lar- 
son V.  Larson,  15  Cal.  App.  531;  115  Pac. 
340;  Marron  v.  Marron,  19  Cal.  App.  326; 
125  Pac.  914);  it  is  equivalent  to  a  de- 
murrer to  the  evidence,  or  an  objection 
that,  admitting  all  of  the  proved  facts  to 
be  true,  they  do  not  in  legal  effect  oper- 
ate in  favor  of  the  plaintiff,  or  entitle  him 
to  the  relief  asked  for  by  him.  Estate  of 
Daly,  15  Cal.  App.  329;  114  Pac.  787.  A 
motion  for  a  nonsuit,  to  prevent  the  sub- 
mission of  a  case  to  the  jury,  presents  a 
question  of  law  for  determination  by  the 
court  (Estate  of  Daly,  15  Cal.  App.  329; 
114  Pac.  787) ;  and  in  a  statement  on  a 
motion  for  a  new  trial  after  nonsuit,  the 
decision  should  be  specified  as  an  error  of 
law.  Donahue  v.  Gallavan,  43  Cal.  573; 
McCreery  v.  Everding,  44  Cal.  284;  Tou- 
louse V.  Pare,  103  Cal.  251;  37  Pac.  146. 
A  nonsuit  as  to  a  certain  defendant  in  a 
consolidated  action  does  not  affect  the  de- 
fault of  a  party,  previously  entered,  nor 
the  right  to  judgment  authorized  by  such 
default.  Kennedy  &  Shaw  Lumber  Co.  v. 
Dusenbery,  116  Cal.  124;  47  Pac.  1008. 

Question  of  variance,  how  raised.  Vari- 
ance may  be  taken  advantage  of  either  by 
objecting  to  the  admissibility  of  the  evi- 
dence or  by  motion  for  a  nonsuit;  and  the 
defendant  is  not  precluded  from  moving 
for  a  nonsuit  on  the  ground  of  variance 
by  reason  of  his  failure  to  object  to  the 
admifsibilitv  of  the  evidence.  Elmore  v. 
Elmore,  114^  Cal.  516;  46  Pac.  458;  Farmer 
V.  Cram,  7  Cal.  135;  Tomlinson  v.  Monrofe, 
41  Cal.  94;  Johnsbn  v.  Moss,  45  Cal.  515. 
The  motion  for  nonsuit  is  the  proper 
method  by  which  to  raise  the  question  of 
variance  between  the  pleadings  and  the 
proof.  Elmore  v.  Elmore,  114  Cal.  516;  46 
Pac.  458. 

Insufficiency  of  complaint  no  ground  for 
nonsuit.  It  is  not  a  ground  for  nonsuit, 
that  the  complaint  does  not  state  a  cause 
of  action.  Keefe  v.  Keefe,  19  Cal.  App. 
310;  125  Pae.  929. 

Nonsuit  before  referee.  A  plaintiff  can 
voluntarily   submit  to   a  nonsuit  before   a 


referee,  where  no  counterclaim  is  set  up 
by  the  defendant.  Plant  v.  Fleming,  20 
Cal.  92. 

Costs  in  case  of  nonsuit.  The  court  is 
justified  in  ordering  the  jdaintiff  to  i>ay 
jury  fees,  where  he  is  nonf>uite<l  upon  a 
trial  before  a  jury.  Fairchild  v.  I'Cing, 
102  Cal.  320;  36  Pac.  649;  Lukes  v.  Logau, 
66  Cal.  33;  4  Pac.  883. 

Findings  unnecessary  in  case  of  nonsuit. 
Findings  of  fact  and  concdusions  of  law 
are  not  required,  where  the  jjlaiiitiff  is 
nonsuited  at  the  trial.  Gilson  Quartz  Min- 
ing Co.  v.  (Jilson,  47  Cal.  597;  Reynolds 
V.  Brumagim,  54  Cal.  254;  Harnev  v.  Mc- 
Leran,  (J6  Cal.  34;  4  Pac.  884;  Toulouse  v. 
Pare,  103  Cal.  251;  37  Pac.  146;  Kennedy 
&  Shaw  Lumber  Co.  v.  Dusenbery,  116 
Cal.  124;  47  Pac.  1008. 

Motion  for  nonsuit,  necessity  for.  The 
court's  summary  dismissal  _  of  an  action, 
at  the  conclusion  of  the  evidence  for  both 
parties,  without  any  motion  by  the  defend- 
ant for  a  nonsuit,  is  not  a  dismissal  au- 
thorized under  the  fifth  subdivision  of  this 
section.  Saul  v.  Moscone,  16  Cal.  App. 
506;  118  Pac.  452. 

Motion  for  nonsuit,  requisites  of.  A 
motion  for  a  nonsuit  should  specify  the 
grounds  upon  which  it  is  made:  ordinarily, 
a  ground  not  stated  cannot  be  considered. 
Kiler  v.  Kimbal,  10  Cal.  267;  Holverstot 
v.  Bugby,  13  Cal.  43;  Baker  v.  Joseph,  IG 
Cal.  173;  Sanchez  v.  Neary,  41  Cal.  485; 
Raimond  v.  Eldridge,  43  Cal.  506;  Silva  v. 
Holland,  74  Cal.  530;  16  Pac.  3S5;  Loring 
v.  Stuart,  79  Cal.  200;  21  Pac.  651;  Miller 
V.  Luco,  80  Cal.  257;  22  Pac.  195;  Daley  v. 
Russ,  86  Cal.  114;  24  Pac.  867;  Palmer 
V.  Marysville  Democrat  Pub.  Co.,  90  Cal. 
168;  27  Pac.  21;  Fontana  v.  Pacific  Can 
Co.,  129  Cal.  51;  61  Pac.  580;  Durfee  v. 
Sfeale,  139  Cal.  603;  73  Pac.  435;  Stanton 
V.  Carnahan,  15  Cal.  App.  527;  115  Pac. 
339;  Coghlan  v.  Quartararo,  15  Cal.  App. 
662;  115  Pac.  664;  Christensen  Lumber  Co. 
V.  Buckley,  17  Cal.  App.  37;  118  Pac.  466; 
Sebring  v.  Harris,  20  Cal.  App.  56;  128 
Pac.  7.  The  reason  for  the  rule  that  a 
motion  for  a  nonsuit  should  state  the 
grounds  therefor  is  to  afford  to  the  plain- 
tiff an  opportunity  to  correct  any  defects 
of  pleading  or  of  proof;  but  the  rule  does 
not  apply  where  the  defects  could  not 
have  been  remedied,  even  if  specially 
pointed  out:  in  such  a  case  it  is  imma- 
terial that  the  grounds  are  not  specified 
(Christensen  Lumber  Co.  v.  Bucklev,  17 
CaL  App.  37;  118  Pac.  466);  nor  does  the 
rule  apply,  whore  the  case  is  one  that  can- 
not be  cured,  although  attention  is  spe- 
cifically called  to  the  defects  (Fontana  v. 
Pacific  Can  Co.,  129  Cal.  51;  61  Pac.  580; 
Daley  v.  Russ,  86  Cal.  114;  24  Pac.  867); 
and  where  the  defects  do  not  a<lmit  of 
correction,  error  in  not  specifying  the 
grounds  of  the  motion  is  immaterial.   Daley 


581 


JUDGMENT,    IN    GENERAL. 


624 


V.  Euss,  86  Cal.   114;   24  Pac.  867;   Night- 
ingale V.  Seannell,  18  Cal.  315. 

Dismissal  for  failure  to  enter  judgment 
within  six  months.  The  old  sixth  subdi- 
vision of  this  section,  which  provided  that 
an  action  might  be  dismissed  where  judg- 
ment was  not  entered  within  six  months 
after  its  rendition,  was  not  mandatory 
(Rickey  Land  etc.  Co.  v.  Glader,  153  Cal. 
179;  94  Pac.  768;  Hall  v.  Justice's  Court, 
5  Cal.  App.  133;  89  Pac.  870);  and  the 
court,  in  its  discretion,  could  grant  or 
deny  a  motion  to  dismiss  an  action  for 
the  cause  therein  mentioned,  without  its 
action  being  disturbed  on  appeal,  except 
for  abuse  of  discretion.  Neihaus  v.  Mor- 
gan, 5  Cal.  Unrep.  391:  45  Pac.  255;  Rosen- 
thal V.  McMann,  93  Cal.  505;  29  Pac.  121; 
Estate  of  McDevitt,  95  Cal.  17;  30  Pac. 
101;  Jones  v.  Chalfant,  3  Cal.  Unrep.  585; 
31  Pac.  257;  Marshall  v.  Taylor,  97  Cal. 
422;  32  Pac.  515;  Fitzhugh  v.  Mason,  2 
Cal.  App.  220;  83  Pac.  282.  Even  had  the 
sixth  subdivision  been  mandatory,  it  could 
not  authorize  the  dismissal  of  an  action, 
where  no  neglect  on  the  part  of  the  plain- 
tiff was  shown.  Marshall  v.  Taylor,  97  Cal. 
422;  32  Pac.  515;  and  see  Rosenthal  v, 
McMann,  93  Cal.  505;  29  Pac.  121.  The 
rule  was,  that  where  the  court  had  actually 
rendered  judgment,  but  it  was  not  entered 
on  the  record,  whether  in  consequence  of 
the  neglect  of  the  court  or  the  neglect  or 
misprision  of  the  clerk,  an  order  could  be 
made  that  the  judgment  rendered  be  en- 
tered nunc  pro  tunc,  after  the  expiration 
of  six  months.  Marshall  v.  Taylor,  97  Cal. 
422;  32  Pac.  515.  Where  the  failure  to 
enter  judgment  for  more  than  six  months 
was  the  result  of  the  negligence  of  the 
clerk,  the  defendant,  on  receiving  the  ver- 
dict, having  handed  it  to  the  clerk  and 
requested  its  entry,  a  motion  to  set  aside 
the  verdict  and  decision  could  be  denied. 
Jones  V.  Chalfant,  3  Cal.  Unrep.  585;  31 
Pac.  257.  A  party  was  not  guilty  of 
negligence,  where  he  requested  the  clerk 
to  make  the  entry  of  judgment,  and  paid 
the  fees  therefor,  and  the  clerk  promised 
to  make  the  entry,  and  the  party  sup- 
posed the  judgment  had  been  entered, 
although  he  did  not  enter  his  request  in 
an  order-book,  as  was  customary,  but  not 
required  by  law.  Gardner  v.  Tatum,  77 
Cal.  458.  The  court  did  not  lose  jurisdic- 
tion of  a  cause  by  a  failure  to  enter  the 
judgment  within  the  time  prescribed,  or 
by  failure  of  the  clerk  to  perform  his 
duty.  Waters  v.  Dumas,  75  Cal.  563;  17 
Pac.  685.  Where  the  cause  was  tried  by 
the  court,  and  submitted  by  both  parties 
for  a  decision  on  the  merits,  the  court 
could  not,  in  deciding  the  case,  order  that 
a  nonsuit  be  granted,  and  the  action  dis- 
missed, on  the  ground  that  the  defendant 
had  neglected  to  demand  and  have  a  non- 
suit entered  for  more  than  six  months. 
San  Jose  Banch  Co.  v.  San  .Jose  Land  etc. 


Co.,  126  Cal.  322;  58  Pac.  824.  A  judg- 
ment of  dismissal,  under  the  sixth  sub- 
division, could  be  reversed,  where  the 
court  abused  its  discretion  in  granting  the 
motion  to  dismiss.  Rickev  Land  etc.  Co. 
V.  Glader,  153  Cal.  179;  94  Pac.  768.  A 
defendant  who  failed  to  demand  a  nonsuit 
was  not  in  default,  although  he  could  ob- 
tain it:  it  was  his  privilege  and  right  to 
demand,  instead,  a  judgment  on  the  mer- 
its, and  whether  the  neglect  was  such  as 
to  justify  a  dismissal  was  subject  to  re- 
viev/  on  appeal.  San  Jose  Ranch  Co.  v. 
San  Jose  Land  etc.  Co.,  126  Cal.  322;  58 
Pac.  824. 

Dismissal  for  failure  to  issue  and  serve 
summons.  Prior  to  the  addition  of  the 
seventh  subdivision  to  this  section  in 
1889,  (the  present  §  581a,  post,)  service 
was  required  to  be  made  within  a  reason- 
able time;  and  where  not  so  made,  it  was 
ground  for  a  dismissal  of  the  action.  Mur- 
ray v.  Gleeson,  100  Cal.  511;  35  Pac.  88; 
and  see  Carpentier  v.  Minturn,  39  Cal. 
450;  Eldridge  v.  Kay,  45  Cal.  49;  L.mder 
V.  Flemminar,  47  Cal.  614;  Diggins  v. 
Thornton,  96  Cal.  417;  31  Pac.  289.  By 
the  addition  of  this  subdivision,  it  was 
intended  to  prevent  the  indefinite  exten- 
sion of  the  life  of  an  obligation,  in  spite 
of  the  statute  of  limitations,  by  simply 
commencing  an  action.  Davis  v.  Hart,  123 
Cal.  384;  55  Pac.  1060.  The  subdivision  is 
in  no  sense  prohibitory  of  the  power  of 
the  court  to  dismiss  the  action:  it  does  not 
limit,  but  enlarges,  the  power  of  the 
court;  and  the  discretion  of  the  court  re- 
mains as  before.  Kreiss  v.  Hotaling,  99 
Cal.  383;  33  Pac.  1125.  Before  the  addi- 
tion of  this  subdivision,  the  power  to  dis- 
miss an  action  for  the  causes  named  was 
wholly  discretionary;  now  it  is  compul- 
sory, where  the  summons  is  not  issued 
within  one  year  and  served  within  three 
years.  Stanley  v.  Gillen,  119  Cal.  176;  51 
Pac.  183;  Ferris  v.  Wood,  144  Cal.  426; 
77  Pac.  1037;  First  Nat.  Bank  v.  Nason, 
115  Cal.  626;  47  Pac.  595.  The  defend- 
ant's right  to  dismiss '  an  action  is  abso- 
lute, where  the  summons  is  not  served  and 
returned  within  three  years,  and  where  no 
appearance  is  made,  except  to  demand  the 
dismissal.  Sharpstein  v.  Eells,  132  Cal. 
5a7;  64  Pac.  1080.  The  legislative  will, 
in  this  addition,  is  comprehensively  ex- 
pressed, and  the  prohibition  therein  is 
absolutely  imperative.  Davis  v.  Hart,  123 
Cal.  384;  55  Pac.  1060.  The  amendment 
is  very  sweeping,  and  is  made  expressly 
applicable  to  pending  suits,  and  is  manda- 
tory and  absolute  (Vrooman  v.  Li  Po  Tai, 
113  Cal.  302;  45  Pac.  470;  White  v.  Su- 
perior Court,  126  Cal.  245;  58  Pac.  450; 
and  see  Grant  v.  McArthur,  137  Cal.  270; 
70  Pac.  88);  but  it  is  not  applicable  to 
actions  which  have  gone  to  judgment,  nor 
where  service  was  actually  made,  and 
judgment    rendered    within    a    year    after 


625 


DISMISSAL — SERVICE  BY  SUMMONS — WANT  OP  PROSECUTION. 


§581 


the  commencement  of  the  action,  though 
there  was  no  return  of  service.  Jones  v. 
Gunn,  149  C'al.  687;  87  Pac.  577.  The 
declaration,  that  "no  further  proceedings 
shall  be  had  therein,"  is  a  statutory  pro- 
hibition against  any  further  proceedings; 
and  if  the  court  act  in  disregard  thereof, 
it  is  acting  without  jurisdiction.  Modoc 
Land  etc.  Co.  v.  Superior  Court.  128  Cal. 
255;  GO  Pac.  848;  and  see  White  v.  Su- 
perior Court,  126  Cal.  245;  58  Pac.  450. 
The  amendment  of  1895  to  the  seventh 
subdivision  was  intended  to  make  the 
legislative  intent  free  from  ambiguity  in 
reference  to  the  duty  of  the  court  to  dis- 
miss an  action,  where  the  summons  was  not 
served  and  return  made  thereon  within 
three  j'ears  after  the  commencement  of 
the  action.  Sharpstein  v.  E'ells,  132  Cal. 
507;  64  Pac.  1080;  and  see  Vrooman  v.  Li 
Po  Tai,  113  Cal.  302;  45  Pac.  470;  Davis 
V.  Hart,  123  Cal.  384;  55  Pac.  1060;  Cooper 
V.  Gordon,  125  Cal.  296;  57  Pac.  1006; 
White  V.  Superior  Court,  126  Cal.  245; 
58  Pac.  450;  Modoc  Land  etc.  Co.  v.  Su- 
perior Court,  128  Cal.  255;  60  Pac.  848. 
It  is  now  compulsory  on  the  court  to  dis- 
miss the  action,  where  the  summons  is  not 
served  within  three  years;  in  other  cases 
there  is  no  fixed  rule  as  to  dismissal  for 
v>'ant  of  prosecution,  and  the  power  to 
dismiss  an  action  on  the  ground  of  un- 
necessary delay  in  serving  summons  is  still 
in  the  discretion  of  the  court,  subject  to 
reversal  for  abuse  of  such  discretion.  Fer- 
ris V.  Wood,  144  Cal.  426;  77  Pac.  1037; 
and  see  First  Nat.  Bank  v.  Nason,  115 
Cal.  626;  47  Pac.  595;  Stanlev  v.  Gillen, 
119  Cal.  176;  51  Pac.  183.  The  seventh 
subdivision  is  not  to  be  construed  as  mean- 
ing that  the  plaintiff  may  have  the  full 
time  limited  thereby  in  all  cases:  it  is  still 
discretionary  with  the  court  to  dismiss, 
even  though  summons  is  issued  and  served 
wdthin  the  time  limited.  Stanley  v.  Gillen, 
119  Cal.  176;  51  Pac.  183;  and  see  First 
Nat.  Bank  v.  Nason,  115  Cal.  626;  47  Pac. 
595.  The  discretion  of  the  court  in  dis- 
missing an  action  on  any  ground,  other 
than  where  the  summons  is  not  served 
within  three  years,  in  which  case  the  court 
is  without  discretion,  is  not  a  capricious 
or  arbitrar}^  but  an  impartial,  discretion, 
guided  and  controlled,  in  its  exercise, 
by  fixed  legal  principles,  to  be  exercised 
in  conformity  with  the  spirit  of  the  law, 
and  in  a  manner  to  subserve,  and  not  to 
impede  or  defeat,  the  ends  of  substantial 
justice.  Bailev  v.  Taaffe,  29  Cal.  422; 
First  Nat.  Bank  v.  Nason,  115  Cal.  626; 
47  Pac.  595;  Ferris  v.  Wood,  144  Cal.  426; 
77  Pac.  1037.  A  delay  in  serving  the  sum- 
mons, reasonably  accounted  for  as  an 
excuse,  is  not  ground  for  dismissing  the 
action  for  unreasonable  delay  in  obtaining 
service.  Ferris  v.  Wood.  144  Cal.  426;  77 
Pac.  1037.  The  court  has  power  to  dis- 
miss, where  there  has  been  an  inexcusable 
X  Fair. — 40 


delay  in  serving  the  summons,  although 
service  is  had  within  three  years  after 
the  filing  of  the  complaint  (Castro  v.  San 
Francisco,  4  Cal.  Unrep.  500;  35  Pac. 
1035);  and  where  the  plaintift",  in  a  con- 
test for  the  {lurchase  of  state  school-land, 
fails  to  serve  and  return  the  summons  for 
the  period  of  three  years  after  the  com- 
mencement of  the  action,  the  court  has 
power,  of  its  own  motion,  to  dismiss  the 
contest.  Darlington  v.  Butler,  3  Cal.  App. 
448;  86  Pac.  194.  Whether  there  has  been 
excusable  delay  within  the  term  of  three 
years,  is  a  question  within  the  discretion 
of  the  court:  each  case  must  be  determined 
upon  its  own  peculiar  circumstances.  Cas- 
tro V.  San  Francisco,  4  Cal.  Unrep.  500; 
35  Pac.  1035;  and  see  Kreiss  v.  Hotaling, 
99  Cal.  383;  33  Pac.  1125;  Murray  v.  Glee- 
son,  100  Cal.  511;  35  Pac.  88.  The  suc- 
cessor in  interest  of  a  deceased  defendant, 
upon  whom  summons  was  served  as  suc- 
cessor in  interest  of  such  defendant,  has 
such  an  interest  as  authorizes  him  to  make 
a  motion  to  set  aside  a  void  decree  en- 
tered upon  such  service,  and  for  dismissal 
of  the  action  for  want  of  prosecution. 
Fanning  v.  Foley,  99  Cal.  336;  33  Pac. 
1098.  Where  the  record  affirmatively 
shows  that  the  summons  was  regularly 
served  by  publication  within  three  years, 
jurisdictional  recitals  in  the  judgment 
must  be  taken,  on  collateral  attack,  as 
true,  unless  the  record  affirmatively  shows 
that  the  facts  upon  which  they  are  based 
are  insufficient  to  sustain  them.  Sacra- 
mento Bank  v.  Montgomery,  146  Cal.  745; 
81  Pac.  138.  The  original  words,  in  the 
seventh  subdivision,  "and  served,  and  re- 
turn thereon  made,"  referred  to  the  sum- 
mons, and  those  of  the  amendment  of  1895,. 
"and  all  such  actions  shall  be  in  like 
manner  dismissed,  unless  the  summons 
shall  be  served  and  return  thereon  made," 
refer  to  the  summons  and  also  the  action. 
Sharpstein  v.  Eells,  132  Cal.  507;  64  Pac. 
1080. 

Dismissal  for  want  of  prosecution.  The 
trial  court  has  power  to  dismiss  an  action 
for  want  of  prosecution  (Pardy  v.  Mont- 
gomery, 77  Cal.  326;  19  Pac.  530),  and  to 
dismiss  a  pending  action,  on  the  ground 
that  it  has  not  been  diligently  prosecuted 
(Gray  v.  Times-Mirror  Co.,  11  Cal.  App. 
155;  104  Pac.  481);  and  where  there  is  no 
counter-showing,  except  that  of  the  plead- 
ings, it  cannot  be  said,  on  appeal,  that  the 
court  abused  its  discretion  in  <lismissing 
the  action.  Davis  v.  Clark,  126  Cal.  232; 
58  Pac.  542;  Mowrv  v.  W^eisenborn,  137 
Cal.  110;  69  Pac.  971.  The  motion  to  dis- 
miss for  want  of  prosecution  is  addressed 
to  the  discretion  of  the  court;  and  its 
action  will  not  be  disturbed,  excejit  for 
an  abuse  of  discretion.  Vestal  v.  Young, 
147  Cal.  715:  82  Pac.  381.  All  presump- 
tions are  against  an  abuse  of  discretion  in 
vacating  a  former  judgment  or  order   oa 


§581 


JUDGMENT,   IN    GENERAL. 


626 


the  ground  of  excusable  neglect  (Moore 
V.  Thompson,  138  Cal.  23;  70  Pac.  930); 
and  there  being  no  showing  to  the  con- 
trary, it  must  be  presumed  that  the  court, 
in  dismissing  the  action  for  want  of  prose- 
cution, exercised  its  power  properly,  and 
within  the  rules  prescribed  by  law.  Pardy 
V.  Montgomery,  77  Cal.  326;  19  Pac.  530. 
Where  the  defendant  entered  into  a  stipu- 
lation with  the  plaintiff,  in  effect  admit- 
ting all  the  allegations  of  the  complaint,  he 
is  estopped  from  urging  the  objection  that 
the  plaintiff  has  neglected  to  prosecute 
the  action  with  due  diligence.  Cooper 
V.  Gordon,  125  Cal.  296;  57  Pac.  1006.  The 
dismissal  of  an  action  of  quo  warranto 
for  want  of  prosecution  is  not  a  bar  to 
another  action  of  the  same  kind  against 
the  same  defendants.  People  v.  Jefferds, 
126  Cal.  296;  58  Pac.  704.  The  court  has 
power,  independently  of  this  section,  to 
dismiss  an  action  for  want  of  prosecution: 
the  maxim,  Expressio  uuius  exclusio  al- 
terius  est,  cannot  be  invoked  against  the 
existence  of  such  independent  power. 
People  V.  Jefferds,  126  Cal.  296;  58  Pac. 
704;  Hassey  v.  South  San  Francisco  Home- 
stead etc.  Ass'n,  102  Cal.  611;  36  Pac.  945. 

Prosecution  of  action,  where  defendant 
appears  within  three  years.  The  seventh 
subdivision  of  this  section  (the  present 
§  581a,  post)  authorizes  a  dismissal  as  to 
those  defendants  who  do  not  appear,  and 
a  prosecution  of  the  action  against  those 
who  do  appear,  whenever  the  court  would 
be  authorized  to  render  a  judgment  against 
them  in  the  absence  of  other  defendants. 
Peek  V.  Agnew,  126  Cal.  607;  59  Pac.  125. 
A  defendant  may  waive  the  provisions  of 
the  seventh  subdivision  in  regard  to  the 
time  for  his  appearance.  Cooper  v.  Gordon, 
125  Cal.  296;  57  Pac.  1006;  and  see  Pacific 
Paving  Co.  v.  Vizelich,  141  Cal.  4;  74  Pac. 
352.  The  original  defendant's  appearance 
at  any  time  within  three  years  from  the 
commencement  of  the  action  gives  juris- 
diction of  his  person,  and  is  equivalent  to 
personal  service  of  the  summons  and  copy 
of  the  complaint  upon  him  within  that 
period.  Hibernia  Sav.  &  L.  Soc.  v.  Coch- 
ran, 141  Cal.  653;  75  Pac.  315.  An  ap- 
pearance by  a  personal  representative, 
within  three  years,  obviates  the  necessity 
of  service  of  summons:  the  court  then  ex- 
ercises jurisdiction  with  the  same  effect 
as  if  the  party  were  brought  in  by  service 
of  summons.  Union  Sav.  Bank  v.  Barrett, 
132  Cal.  453;  64  Pac.  713,  1071.  A  judg- 
ment of  dismissal  is  properly  vacated, 
where  a  stipulation  was  entered  into  be- 
tween the  parties,  in  lieu  of  an  answer, 
containing  a  consent  to  entry  of  appear- 
ance of  the  defendant  and  entry  of  judg- 
ment. Cooper  V.  Gordon,  125  Cal.  296;  57 
Pac.  1006;  and  see  Pacific  Paving  Co.  v. 
Vizelich,  141  Cal.  4;  74  Pac.  352.  A  stipu- 
lation, entered  into  by  the  defendant, 
admitting  all   the  allegations   of  the  com- 


plaint, and  consenting  to  judgment  against 
him,  although  not  filed  until  after  the 
case  was  dismissed,  binds  the  parties,  and 
is  a  basis  of  relief  to  a  person  injured  by 
trusting  to  it  (Cooper  v.  Gordon,  125  Cal. 
296;  57  Pac.  1006);  and,  even  though  not 
filed,  a  stipulation  giving  the  defendant 
time  in  which  to  plead  constitutes  a  virtual 
appearance  of  the  defendant,  and  is  suffi- 
cient to  preclude  him  from  restraining  the 
court  from  further  proceedings.  Roth  v. 
Superior  Court,  147  Cal.  604;  82  Pac.  246. 
A  stipulation  for  an  appearance,  not 
within  three  years  after  the  commence- 
ment of  action,  cannot  be  considered  as  an 
appearance.  Grant  v.  McArthur,  137  Cal. 
270;  70  Pac.  88.  Verbal  requests  by  the 
defendant  for  delay  in  service  of  sum- 
mons, and  verbal  authority  given  by  him 
to  the  plaintiff  to  enter  judgment  at  any 
time  without  further  service  of  papers,  do 
not  constitute  an  appearance  in  the  action, 
nor  a  power  of  attorney  to  confess  judg- 
ment. Siskiyou  County  Bank  v.  Hoyt,  132 
Cal.  81;  64  Pac.  118.  A  judgment  of  dis- 
missal will  be  modified  on  appeal,  where 
the  defendants  who  have  appeared  in  the 
action  are  included,  and  an  order  of  dis- 
missal as  to  such  defendants  will  be  va- 
cated. Peck  V.  Agnew,  126  Cal.  607;  59 
Pac.  125. 

How  long  jurisdiction  continues.  The 
mere  pendency  of  a  motion  to  dismiss  can- 
not operate  as  a  dismissal,  nor  divest  the 
court  of  jurisdiction  to  decide  the  motion. 
Boca  etc.  R.  R.  Co.  v.  Superior  Court,  150 
Cal.  153;  88  Pac.  718.  Control  of  the 
court  to  allow  alimony  and  counsel  fees, 
pendente  lite,  in  an  action  for  divorce, 
is  not  lost  until  judgment  of  dismissal  is 
entered  (Page  v.  Page,  77  Cal.  83;  19  Pac. 
183) ;  and  orders  in  relation  to  alimony 
and  counsel  fees,  are  not  void,  and  cannot 
be  annulled  on  certiorari,  where  made 
after  entry  of  dismissal,  but  before  the 
judgment  of  dismissal  was  entered  in  the 
judgment-book  (Page  v.  Superior  Court, 
76  Cal.  372;  18  Pac.  385);  but  these  de- 
cisions were  rendered  before  the  amend- 
ment of  this  section  in  1897,  and  the  entry 
of  the  dismissal  in  the  clerk's  register  is 
now  sufficient.  Hopkins  v.  Superior  Court, 
136  Cal.  552;  69  Pac.  299;  and  see  Kauf- 
man V.  Superior  Court,  115  Cal.  152;  46 
Pac.  904. 

Doctrine  of  relation.  The  judgment  re- 
lates to  the  date  of  the  legal  demand  for 
the  dismissal  of  the  action,  where  neces- 
sary to  preserve  the  substantial  rights  of 
the  parties.  Kaufman  v.  Superior  Court, 
115  Cal.  152;  46  Pac.  904. 

Absence  of  notice  of  motions.  Where 
issues  of  fact  tendered  by  a  complaint  in 
intervention  are  undetermined,  an  order, 
without  notice,  dismissing  the  action  as 
to  the  interveners,  where  notice  is  not 
waived,  is  unauthorized.  Townsend  v. 
Driver,    5    Cal.    App.    581;    90    Pac.    1061, 


€27 


DISMISSAL — POWER  OK  COURT — AS  BAR,  ETC.— MANDAMUS. 


§581 


Whore  counsel  for  each  of  tlu^  jiarties  are 
present  at  the  hearing  of  a  motion  to 
■vacate  a  judf^nient,  and  contest  the  same, 
there  is  a  waiver  of  notice  of  the  motion. 
Acock  V.  Halsey,  90  Cal.  215;  27  Pac.  VXA; 
nnd  see  McLeran  v.  Shartzer,  5  Cal.  70; 
63  Am.  Dec.  84;  Reynolds  v.  Harris,  14 
Cal.  r)()7;  7C  Am.  Dec.  4.10. 

Motion  to  dismiss,  when  Improper.  A 
motion  to  dismiss  on  the  ground  that  the 
answer  is  sufficient  to  bar  a  recovery,  is 
im[iroiier  procedure.  Forrester  v.  Lawler, 
14  Cal.  Api).  170;  111  Pac.  2S4. 

Defendant  may  ask  dismissal.  A  de- 
fendant may  employ  counsel  to  take  steps 
to  bring  about  the  dismissal  of  an  action, 
without  entering  a  general  appearance. 
Caffey  v.  Mann,  3  Cal.  App.  124;  84  Pac. 
424. 

Right  of  defendant  to  counsel  fees.  The 
right  of  the  defendant  to  counsel  fees, 
upon  the  dismissal  of  an  action  for  slander, 
is  not  limited  to  a  dismissal  for  a  failure 
of  the  plaintiff  to  file  a  bond  for  costs. 
Caffey  v.  Mann,  3  Cal.  App.  124;  84  Pac.  424. 

Power  of  court  over  dismissals.  The 
court  may  summarily  vacate  a  void  judg- 
ment of  dismissal.  Acock  v.  Halsey,  00 
Cal.  21.5;  27  Pac.  193.  In  the  absence  of 
any  showing  to  the  contrary,  it  will  be 
presumed  that  a  judgment  of  dismissal 
was  made  on  some  good  ground,  and  that, 
in  ordering  it,  the  court  properly  exercised 
its  power  in  conformity  with  the  rules  of 
law  (Woods  V.  Diepenbroek,  141  Cal.  55; 
74  Pac.  546) ;  and  a  judgment  is  proper, 
where,  upon  an  issue  of  law  involving  the 
sufficiency  of  the  complaint,  the  demurrer 
was  sustained,  and  the  plaintiff  refused 
to  amend  (Saddlemire  v.  Stockton  Sav.  & 
L.  Soc,  144  Cal.  650;  79  Pac.  381);  but  a 
motion  to  dismiss  is  not  authorized  by 
this  section,  where  neither  party  was 
entitled  to  demand  entry  of  judgment  at 
any  time  before  the  motion  was  made. 
Neihaus  v.  Morgan,  5  Cal.  Unrep.  391;  45 
Pac.  255.  An  order  of  dismissal,  entered 
by  the  clerk  in  the  register,  is  completely 
annulled  by  a  subsequent  order  of  the 
court  vacating  it  (Welters  v.  Rossi,  126 
Cal.  644;  59  Pac.  143);  and  an  order  re- 
fusing to  vacate  a  judgment  of  dismissal 
for  want  of  findings  is  not  appealable. 
Estate  of  Gregory,  122  Cal.  483;  55  Pac. 
144.  The  court  is  not  precluded  from  ex- 
ercising its  discretion,  on  motion  to  dis- 
miss, because  it  had,  shortly  before  the 
motion  was  made,  given  the  plaintiff  leave 
to  amend.  San  Jose  Land  etc.  Co.  v.  Allen, 
129  Cal.  247;  61  Pac.  1083.  The  power  to 
dismiss  an  action  was  first  exercised  by 
courts  of  equity;  but,  for  a  long  period, 
courts  of  law  have  exercised  the  authority 
as  part  of  their  inherent  powers;  and  the 
same  rules  now  apply  to  a  dismissal  either 
at  law  or  in  equitv,  under  code  procedure. 
People  V.  Jefferds,  126  Cal.  296;  58  Pac.  704. 


Dismissal  or  nonsuit  as  bar.  .\  judg- 
ment of  dismissal,  gi\<'n  upon  motion  of 
the  plaintiff,  before  the  hearing  or  trial 
of  any  issue  of  law  or  fai't,  and  without 
any  determination  of  the  merits  of  the 
cause,  is  no  bar  to  a  subsequent  suit  in  any 
court  uj)on  the  same  cause  of  action.  Carr 
V.  Howell,  154  Cal.  372;  97  Pac.  885.  A 
wife's  dismissal  of  her  action  for  a  divorce, 
without  the  consent,  or  even  knowledge, 
of  the  defendant,  and  without  consiilera- 
tion  of  any  kind  from  him  to  her,  is  not 
a  bar  to  a  subsequent  action  concerning 
the  matters  involved  therein.  Clopton  v. 
(lopton,  162  Cal.  27;  121  Pac.  720.  Where 
a  case  has  been  removed  from  a  state  to  a 
Federal  court,  the  plaintiff's  voluntary  dis- 
missal of  his  action,  while  a  demurrer  to 
the  complaint  is  pending  and  undeciiled, 
is  not  a  bar  to  a  subsequent  action  in  the 
state  court  upon  the  same  cause  of  action. 
Carr  v.  Howell,  154  Cal.  372;  97  Pac.  8S5. 
A  nonsuit  suffered  for  any  cause  is  not  a 
bar  to  a  suit  subsequently  brought  on  the 
same  cause  of  action.  San  Francisco  v. 
Brown,  153  Cal.  644;  96  Pac.  281.  A  non- 
suit does  not  operate  as  a  bar:  a  judgment, 
to  operate  as  such,  must  be  one  rendered 
upon  the  merits,  or  must  amount  to  a  re- 
traxit, as  known  in  suits  at  common  law, 
which  is  an  open  and  voluntary  renuncia- 
tion of  the  plaintiff's  suit  in  court,  the 
plaintiff  not  being  at  liberty  afterwards 
to  renew  it.  Merritt  v.  Campbell,  47  Cal. 
542;  Hubbard  v.  Superior  Court,  9  Cal. 
App.  166;  98  Pac.  394.  A  dismissal  of  the 
first  action  is  not  a  bar  to  a  second,  nor 
a  judgment  on  the  merits,  except  where 
the  judgment  is,  in  eff'ect,  a  retraxit. 
Westbay  v.  Gray,  116  Cal.  660;  48  Pac.  800; 
Hibernia  Sav.  &  L.  Soc.  v.  Portener,  139 
Cal.  90;  72  Pac.  716;  Merritt  v.  Campbell, 
47  Cal.  542;  Crossman  v.  Davis,  79  Cal. 
603;  21  Pac.  963;  Rosenthal  v.  McMann, 
93  Cal.  505;  29  Pac.  121.  A  judgment  of 
dismissal,  rendered  upon  the  oral  agree- 
ment of  the  parties,  in  open  court,  with 
a  stipulation  that  each  party  pay  his  own 
costs,  is  a  bar  to  another  suit  upon  the 
same  cause  of  action.  Merritt  v.  Campbell, 
47  Cal.  542. 

Dismissal  as  final  judgment.  A  judg- 
ment, although  termed  a  dismissal,  which 
is  in  fact  a  final  decision  of  the  case,  and 
not  a  mere  order  of  nonsuit  or  dismissal 
made  in  accordance  with  the  provisions  of 
this  section,  will  be  treated  as  a  final 
judgment.  Saul  v.  Moscone,  16  Cal.  App. 
506;  118  Pac.  452. 

Mandamus.  Mandamus  will  issue  to 
compel  the  court  to  try  a  case  attemi>ted 
to  be  dismissed  by  the  plaintiff,  where 
affirmative  relief  is  sought  bv  the  answer. 
Clark  V.  Hundley,  65  Cal.  96;  3  Pac.  131. 
Where  the  plaintiff  moves  for  a  dismissal 
at  his  costs,  and  the  motion  is  resisted  by 
the   defendant   and    denied  by  the  court, 


581 


JUDGMENT,   IN    GENERAL. 


628 


mandamus  will  not  issue,  commanding  the 
judge  to  enter  a  judgment  of  dismissal, 
when  the  act  to  be  done  is  judicial  and 
discretionary.  People  v.  Pratt,  28  Cal. 
166;  87  Am.  Dec.  110;  People  v.  Sexton, 
24  Cal.  79. 

Prohibition.  Prohibition  is  the  appro- 
priate remedy  to  prevent  a  stay  of  pro- 
ceedings, where  the  court  refuses  to  order 
the  entry  of  dismissal  until  the  plaintiff 
shall  have  paid  the  costs.  Hopkins  v.  Su- 
perior Court,  136  Cal.  552;  69  Pae.  299. 
Prohibition  will  issue  to  restrain  the  court 
from  proceeding  with  an  action,  where  the 
plaintiff  has  dismissed  it,  and  the  court 
subsequently  sets  aside  the  order  of  dis- 
missal and  threatens  further  proceedings 
(Kaufman  v.  Superior  Court,  115  Cal.  152; 
46  Pac.  904) ;  and  prohibition  will  issue  to 
restrain  the  court  from  proceeding  with 
the  trial  of  a  cause,  three  years  after  the 
subsequent  commencement  of  the  action, 
where  a  motion  to  dismiss  had  been  made. 
Modoc  Land  etc.  Co.  v.  Superior  Court, 
128  Cal.  255;  60  Pac.  848. 

New  trial.  The  question  presented  on  a 
motion  for  a  nonsuit  is  a  question  of 
law,  and  in  a  statement  on  a  motion  for 
a  new  trial,  after  nonsuit,  the  decision 
should  be  specified  as  an  error  of  law. 
Donahue  v.  Gallavan,  43  Cal.  573;  Mc- 
Creery  v.  Everding,  44  Cal.  284;  Toulouse 
V.  Pare,  103  Cal.  251;  37  Pac.  146. 

Appeal.  Where  an  action  is  improperly 
dismissed  by  the  plaintiff,  the  defendant's 
remedy  is  by  appeal  from  the  judgment, 
and  not  by  motion  to  set  it  aside.  Higgins 
V.  Mahoney,  50  Cal.  444;  Westbay  v.  Gray, 
116  Cal.  660;  48  Pac.  800.  The  appellate 
court  will  not  go  beyond  the  inquiry, 
whether  or  not  the  discretion  of  the  trial 
court  in  dismissing  the  action  has  been 
abused.  Hassey  v.  South  San  Francisco 
Homestead  etc.  Ass'n,  102  Cal.  611;  36 
Pac.  945;  People  v.  Jeflferds,  126  Cal.  298; 
58  Pac.  704;  Nicol  v.  San  Francisco,  130 
Cal.  288;  62  Pac.  513;  Martin  v.  San  Fran- 
cisco, 131  Cal.  575;  63  Pac.  913;  Kennedy 
V.  Mulligan,  136  Cal.  556;  69  Pac.  291;  and 
see  Grigsby  v.  Napa  County,  36  Cal.  585; 
95  Am.  Dec.  213;  Chipman  v.  Hibberd,  47 
Cal.  638;  Lander  v.  Flemming,  47  Cal.  614; 
Simmons  v.  Keller,  50  Cal.  38;  Kornahrens 
V.  His  Creditors,  64  Cal.  492;  3  Pac.  126; 
Saville  v.  Frisbie,  70  Cal.  87;  11  Pac.  502; 
Pardy  v.  Montgomery,  77  Cal.  326;  19  Pac. 
530;  Kubli  v.  Hawkett,  89  Cal.  638;  27 
Pac.  57.  The  order  granting  a  nonsuit,  un- 
less excepted  to  and  assigned  as  error, 
cannot  be  assailed  on  appeal  (Toulouse  v. 
Pare,  103  Cal.  251;  37  Pac.  146;  Hanna  v, 
De  Garmo,  140  Cal.  172;  73  Pac.  830); 
and  the  bill  of  exceptions  or  statement 
must  affirmatively  show  that  the  ruling  as- 
signed as  error  actually  took  place  at  the 
trial  and  was  excepted  to.  Hanna  v.  De 
Garmo,  140  Cal.  172;  73  Pac.  830;  Flashner 
V.    Waldron,    86    Cal.    211;    24    Pac.    1063; 


Warner  v.  Darrow,  91  Cal.  309;  27  Pac. 
737;  Malone  v.  Beardsley,  92  Cal.  150;  28 
Pac.  218;  Craig  v.  Hesperia  Land  etc.  Co., 
107  Cal.  675;  40  Pac.  1057.  Where  prohi- 
bition to  a  justice's  court  is  denied,  the 
parties  cannot,  by  stipulation,  limit  the 
inquiry  on  appeal  to  the  moot  question,  not 
arising  upon  the  record,  whether  this  sec- 
tion applies  to  justice's  courts.  Hubbard 
v.  Justices'  Court,  5  Cal.  App.  90;  89  Pac. 
865.  It  must  be  presumed,  on  appeal,  in 
favor  of  a  judgment  of  nonsuit,  that  a 
motion  therefor  was  regularly  maile  and 
granted  bv  the  court.  Hanna  v.  De  Garmo, 
140  Cal.  172;  73  Pac.  830. 

Dismissal  for  failure  to  make  return  of 
summons.    See  note  post,  §  5Sla. 

Questions  on  appeal  as  to  dismissals  and 
nonsuits.    See  note  post,  §  963. 

Compulsory  granting  of  nonsuit.  See  note  24 
Am.  Dec.  62  0. 

Effect  of  nonsuit  as  res  adjudicata.  See  note 
49  Am.   St.  Rep.   831. 

What  constitutes  "final  submission"  of  cause 
so  as  to  preclude  voluntary  dismissal.  See  note  4 
Ann.  Cas.  510. 

Eight  of  complainant  to  dismiss  bill  in  equity 
without  order  of  court.    See  note  5  Ann.  Cas.  850. 

Dismissal  of  action  by  agreement  as  res  adju- 
dicata.   See  note  13  Ann.  Cas.  655. 

Dismissal  of  action  by  co-plaintiff.  See  note  20 
Ann.  Cas.  1005. 

Eight  of  plaintiff  to  take  voluntary  nonsuit  or 
dismissal  after  verdict  or  finding  but  before  judg- 
ment.   See  note  Ann.  Cas.   1913jJ,   525. 

Power  of  court  to  protect  attorney  who  has 
taken  case  on  contingent  fee,  against  voluntary 
dismissal  by  claimant  without  his  consent.  See 
note  14  L.  K.  A.   (N.  S. )   1095. 

Jurisdiction  of  court  to  enter  final  judgment 
upon  dismissal.    See  note  26  L.  R.  A.  (N.  S.)  914. 

Eight  of  plaintiff  to  take  a  nonsuit  where  the 
defendant  has  interposed  a  counterclaim  entitling 
him  to  aifirmative  relief,  where  right  to  such  dis- 
missal is  not  defined  or  denied  by  statute.  See 
note  15  L.  R.  A.    (N.  S.)    340. 

CODE   COMMISSIONEES'   NOTE.      1.   By   the 

plaintift'.  Plaintiff  may  talje  a  nonsuit  at  any 
time  before  the  jury  retires,  if  a  counterclaim 
has  not  been  made.  Hancock  Ditch  Co.  v.  Brad- 
ford, 13  Cal.  637;  Brown  v.  Harter,  18  Cal.  76. 
Plaintifl'  has  not  the  absolute  right  to  dismiss  or 
take  a  nonsuit  after  the  case  has  been  finally  sub- 
mitted and  the  jury  has  retired.  Brown  v.  Harter, 
18  Cal.  76.  Xor  has  the  court  any  authority  to 
enter  an  order  of  dismissal  without  the  consent 
of  defendant.  Heinlin  v.  Castro,  22  Cal.  101.  C, 
one  of  four  defendants  in  ejectment,  moved  to 
transfer  the  action  to  a  United  States  court,  on 
the  ground  of  his  alienage,  and  an  order  was 
made,  staying  all  proceedings  until  the  motion 
could  be  heard.  Before  the  hearing  of  the  mo- 
tion, plaintiff'  dismissed  the  action  as  to  C.  and 
one  other  defendant,  and  took  judgment  against 
the  other  two,  who  had  made  default.  C.  after- 
wards insisted  upon  his  motion,  and  filed  affi- 
davits tending  to  show  that  the  defaulting 
defendants  were  occupying  the  premises  as  his 
tenants,  and  were  colluding  with  the  plaintiff. 
The  motion  was  denied,  and  C.  having  appealed 
from  that  order  and  from  the  judgment,  it  was 
held  that  the  motion  was  properly  denied.  Reed 
V.  Calderwood,  22  Cal.  463.  In  an  action  of 
ejectment  against  several  defendants,  the  plain- 
tiff may,  before  trial,  dismiss  the  action  as  to 
some  of  the  defendants,  and  proceed  against  the 
others.  Id.;  Dimick  v.  Deringer,  32  Cal.  488.  In 
an  action  upon  a  joint  and  several  bond,  where 
all  the  obligors  are  made  defendants,  the  plain- 
tiff may  go  to  trial,  if  he  elects  so  to  do,  before 
all  the  defendants  are  served,  and  may  dismiss 
as  to  some  of  the  defendants,  and  take  judgment 


629 


DISMISSAL — NONSUIT. 


§581 


against  the  others.  People  ▼.  Evani.  29  Cal.  429. 
Tne  defendant,  in  his  answer,  set  up  u  (.-ro.ssi  de- 
mand, and  proved  affirmative  relief.  Afterwards 
A  stipulatiiin,  sipned  by  the  atlurneys  of  tlie  par- 
ties, was  tiled,  whereby  it  was  provided  that  upon 
the  trial  of  the  cause  an  account  might  be  taken 
of  the  matter  thus  set  up;  that  the  stipulation 
should  be  rej^arded  as  a  compromise  of  the 
counterclaim;  and  that  the  counierclaim  should 
be  deemed  stricken  from  the  answer.  It  was 
held,  ih.tt,  on  this  state  of  the  record,  the  clerk 
was  not  required  nor  authorized  by  §  1-18  of  the 
Practice  Act,  in  the  absence  of  any  direction 
from  the  court  or  counsel  of  the  defendant,  to 
«nlcr  an  order  upon  request  of  plaintiff  dismissing 
the  action.  The  construction  of  the  pleadings 
and  stipulation,  and  determination  of  the  rights 
of  the  p.Trties  with  respect  to  the  counterclaim 
under  them,  required  the  exercise  of  judicial 
functions.  People  v.  Loewy,  29  Cal.  2G4.  Plain- 
tiff is  not  bound  to  tender  costs;  the  provisions 
subject  him  onlv  to  the  liability.  Hancock  Ditch 
Co.  V.  Bradford,'  l:i  Cal.  6:37. 

2.  Upon  written  consent.  If  a  plaintiff,  who 
has  appeared  by  attorney,  afterwards  stipulates 
in  writing  that  the  action  may  be  dismissed,  the 
court  should  not  make  the  order  of  dismissal, 
unless  the  attorney  of  record  assents  to  the  same. 
Board  of  Commissioners  v.  Younger,  29  Cal.  147; 
87  Am.  Dec.  164. 

3.  When  the  plaintiff  fails  to  appear.  When 
the  plaintiff  fails  to  appear  on  the  irial,  and  the 
defendant  appears  and  moves  for  a  dismissal 
or  nonsuit,  the  court  must  grant  the  moliun. 
Peralta  v.  Mariea,  3  Cal.  185. 

4.  When,  upon  the  trial,  the  plaintiff  fails  to 
prove  his  case.  The  court  below  is  justified  in 
granting  a  defendant's  motion  for  a  nonsuit,  in 
a  case  where  the  evidence,  if  submitted  to  the 
jury,  would  not  have  supported  a  verdict  for  the 
plaintiff.  Geary  v.  Simmons.  39  Cal.  224;  Hasten 
V.  Griffen,  33  Cal.  Ill;  Stuart  v.  Simpson,  1 
Wend.  376;  Cravens  v.  Dewey,  13  Cal.  40;  Ring- 
gold V.  Haven,  1  Cal.  108;  Dalrymple  v.  Hanson, 
1  Cal.  12.5;  Mateer  v.  Brown,  1  Cal.  221;  52 
Am.  Dec.  303;  Ensminger  v.  Mclntirc,  23  Cal. 
•593.  But  the  motion  should  not  be  granted,  if 
there  is  evidence  tending  to  prove  all  the  ma- 
terial allegations  of  the  complaint.  McKee  v. 
Greene,  31  Cal.  418;  Ringgold  v.  Haven,  1  Cal. 
108;  De  Ro  v.  Cordes,  4  Cal.  117;  Cravens  v. 
Dewey,  13  Cal.  40.  The  court  should,  of  its  own 
notion,  dismiss  a  case  based  upon  a  considera- 
tion which  contravenes  public  nolicy,  whether  the 
parties  take  the  objection  or  not.  Valentine  v. 
Stewart,  15  Cal.  387.  Plaintiffs  may  be  non- 
suited upon  the  opening  statement  of  their  coun- 
sel. Hoffman  v.  Felt,  1  Cal.  Unrep.  369.  Where, 
in  an  action  on  a  verbal  contract,  several  dis- 
tinct promises,  on  the  part  of  defendants,  were 
alleged,  and  were  denied  by  the  answer,  and  on 
the  trial  the  plaintiff  introduced  no  proof,  e.xcept 
as  to  one  of  the  promises,  it  was  held,  that  this 
was  ground  for  nonsuit;  that  the  provisions  of 
the  code  required  a  relaxation  of  the  common- 
law  rule  respecting  a  variance,  and  that  it  being 
apparent  that  defendants  wore  not  surprised  or 
prejudiced  by  the  failure  of  proof,  the  error  in 
stating  the  agreement  should  have  been  disre- 
garded. Peters  v.  Foss,  20  Cal.  .")86.  In  an 
action  of  ejectment,  one  of  several  defendants, 
who,  in  his  answer,  disclaims  all  right,  title,  and 
interest  in  the  premises,  but  also  denies  all  the 
allegations  of  the  complaint,  and  avers  that  "he 
was  and  still  is  lawfully  seised  and  in  posses- 
sion" of  the  land  claimed,  is  not  entitled  to  have 
the  action  dismissed  as  to  liimself.  Pioche  v. 
Paul,  22  Cal.  105.  In  an  action  against  four 
upon  a  joint  contract,  the  plaintiff  adduced  no 
evidence  to  establish  the  joint  liability  of  all, 
and  a  motion  for  a  nonsuit  was  maile  on  this 
ground,  but  refused  by  the  court,  and  judgment 
was  rendered  apainst  all  the  defendants  jointly. 
It  was  held,  th.Tt  the  judgment  was  erroneous: 
but  that  the  plaintiffs  might  have  discontinued 
the  suit  as  against  those  not  shown  to  be  liable, 
and  have  proceeded  to  judgment  against  those 
whose  liability  was  established,  upon  such  terms 
and  conditions  as  should  appear  to  be  just.     Ac- 


quital  V.  Crowell,  1  Cal.  191.  If  the  complaint 
aver.s  that  the  defendant  brought  a  false  charge 
against  the  plaintiff,  and  threatened  to  publibh 
the  same,  and  injure  his  credit,  unless  he  paid 
a  false  account,  and  that  by  reason  of  the  false 
charge  and  threats  he  paid  the  name  without 
other  consideration,  and  prays  judgment  for  the 
money  thus  paid,  the  payment  of  the  money  with- 
out consideration  is  the  gist  of  the  plaintiff's 
cause  of  action,  and  if  he  fails  to  offer  evidence 
of  the  facts  tending  to  show  a  want  of  considera- 
tion, a  nonsuit  should  be  granted.  Kohler  ▼. 
Wells  Fargo  &  Co.,  26  Cal.  607.  Where,  in  an 
action  for  breach  of  a  verbal  contract,  there  was 
a  slight  difference  between  the  slatenient  in  the 
complaint  and  that  in  the  answer,  of  the  promises 
on  the  part  of  the  plaintiff,  which  were  the  con- 
sideration of  defendant's  promise,  but  no  issue 
was  raised  by  the  answer  as  to  the  performance, 
by  plaintiiT,  of  his  promises,  and,  on  the  trial, 
plaintiff  rested  without  proof  as  to  the  considera- 
tion, it  was  held,  the  absence  of  proof  on  this 
point  was  not  ground  for  a  nonsuit.  Peters  v. 
Foss,  20  Cal.  586.  In  an  action  of  ejectment,  a 
nonsuit  should  be  granted  as  to  such  defendants 
as  were  not  in  possession  of  the  premises  at  the 
commencement  of  the  action.  Garner  v.  Marshall, 
9  Cal.  268.  In  an  action  of  ejectment,  upon 
disclaimer  of  possession  or  interest  in  the  prop- 
erty, a  judsrment  for  the  plaintiff  cannot  be  en- 
tered. \Vhen  such  disclaimer  is  relied  upon,  tiia 
proper  judgment  is  one  of  nonsuit.  Noe  v.  Card, 
14  Cal.  576.  In  passing  upon  the  correctness  of 
the  ruling  of  the  court  below  in  granting  a  non- 
suit, the  supreme  court  will  consider  as  proven 
every  fact  which  the  evidence  tended  to  prove, 
and  which  was  essential  to  be  proven  to  entitle 
the  plaintiff  to  recover.  Dow  t.  Gould  etc.  Min- 
ing Co.,  31   Cal.  630. 

5.  Referee  may  grant  nonsuit.  The  referee, 
in  cases  referred  to  him,  takes  the  place  of  the 
judge,  and  may  grant,  or  the  plaintiff  may  sub- 
mit to,  a  nonsuit  in  a  proper  case.  Plant  v.  Flem- 
ing,  20   Cal.    92. 

6.  Discontinuance.  The  plaintiff  commenced 
an  action  of  forcible  entry  and  detainer  against 
the  defendant,  in  a  justice's  court.  The  justice 
certified  it  to  the  district  court.  It  was  held, 
that  the  transfer  was  illegal,  and  did  not  defeat 
the  plaintiff's  right  by  operating  as  a  discon- 
tinuance. Larue  v.  Gaskins.  5  Cal.  507.  The 
submission  of  a  cause  to  arbitration  operates  as 
a   discontinuance.     Gunter  v.    Sanchez,    1    Cal.   45. 

7.  Prcceedings  on  motion  for  nonsuit  cr  dis- 
missal. A  partv  moving  for  a  nonsuit  must  state 
in  his  motion  the  precise  grounds  upon  which  he 
relies,  so  that  the  attention  of  the  court  and 
counsel  may  be  directed  to  the  supposed  defects 
in  the  plaintiff's  case.  People  v.  Bauvard,  27  Cal. 
474;   Kiler  v.  Kimbal,   10  Cal.  267. 

8.  Waiver.  Where  a  defendant,  after  moving 
for  a  nonsuit,  introduces  evidence  supplying  the 
defect  in  the  plaintiff's  testimony  on  which  the 
motion  for  nonsuit  was  founded,  he  thereby  waives 
his  motion,  and  cannot  insist  upon  it  on  appeal. 
Ringgold  V.  Haven,  1  Cal.  108;  Smith  v.  Comp- 
ton,  6  Cal.  24;  Perkins  v.  Thornburgh,  10  Cal. 
189;  Winans  v.  Hardenbergh,  8  Cal.  291.  Whore 
plaintiffs,  having  excepted  to  the  ruling  of  the 
court  excluding  certain  evidence,  take,  in  conse- 
quence of  such  ruling,  a  nonsuit,  with  leave  to 
move  to  set  it  aside,  they  do  not  waive  any  of 
their  rights  to  the  exception  taken.  Natoma 
"Water  etc.  Co.  v.  Clarkin,   14  Cal.  544. 

9.  Generally.  Where  a  complaint  disclosed  that 
the  same  subject-matter  had  been  litigated  be- 
tween the  same  parties  in  a  prior  suit,  and  that 
in  such  suit  the  plaintiff  in  this  suit  had  set  up 
the  same  equity  which  he  claims  by  this,  the  ac- 
tion will  be  ordered  to  be  dismissed.  Barnett  v. 
Kilbourne,  3  Cal.  327.  Where  the  complaint  in 
an  action  on  a  bill  of  exchange  describes  it  as 
payable  to  the  order  of  A.,  and  the  bill  offered 
in  evidence  is  drawn  payable  to  B.,  it  is  a  va- 
riance to  be  taken  advantage  of  by  objecting  to 
the  evidence,  or  by  a  motion  of  nonsuit.  F;t::i!er 
V.  Cram,  7  Cal.  135.  In  cases  of  nonsuit,  costs 
ought  not  to  be  taxed,  by  way  of  indemnity.  Kice 
T.  Leonard,  5  Cal.  (jl. 


§581a 


JUDGMENT,    IN   GENERAL. 


eso 


§  581a.    Dismissal  of  action  for  failure  to  issue  summons   when.     No 

action  heretofore  or  hereafter  commenced  shall  be  further  prosecuted,  and  nO' 
further  proceedings  shall  be  had  therein,  and  all  actions  heretofore  or  here- 
after commenced  must  be  dismissed  by  the  court  in  Avhich  the  same  shall 
have  been  commenced,  on  its  own  motion,  or  on  motion  of  any  party  in- 
terested therein,  whether  named  in  the  complaint  as  a  party  or  not,  unless- 
summons  shall  have  issued  witliin  one  year,  and  all  such  actions  must  be 
in  like  manner  dismissed,  unless  the  summons  shall  be  served  and  return, 
thereon  made  within  three  years  after  the  commencement  of  said  action. 
But  all  such  actions  may  be  prosecuted,  if  appearance  has  been  made  by  the 
defendant  or  defendants,  within  said  three  years  in  the  same  manner  as  if 
summons  had  been  issued  and  served;  provided,  that,  except  in  actions  to 
partition  or  to  recover  possession  of,  or  to  enforce  a  lien  upon,  or  to  deter- 
mine conflicting  claims  to,  real  or  personal  property,  no  dismissal  shall  be- 
had  under  this  section  as  to  am^  defendant  because  of  the  failure  to  serve 
summons  on  him  during  his  absence  from  the  state,  or  while  he  has  secreted 
himself  within  the  state  to  prevent  the  service  of  summons  on  him. 

the  action  may  be  dismissed,  although 
there  has  been  filed  an  affidavit  of  service 
on  one  of  the  defendants,  and  a  copy  of 
the  summons.  Grant  v.  McArthur,  137  Cal. 
270;  70  Pac.  88.  It  is  the  duty  of  th& 
court  to  dismiss  an  action,  commenced 
more  than  five  years  before  the  motion  for 
dismissal,  and  in  which  no  summons  has- 
been  served,  or  appearance  made  by  the 
defendant.  McColgan  v.  Piercy,  17  Cal. 
App.  160;  118  Pac.  957.  The  provision 
requiring  a  dismissal  for  a  failure  to  make 
return  of  service  within  three  years  can- 
not apply  to  an  action  where  service  was 
actually  made,  trial  had,  and  a  judgment 
entered,  which  has  become  final,  and  which 
was  rendered  within  a  year  after  the  com- 
mencement of  the  action.  Jones  v.  Gunn, 
149  Cal.  687;  87  Pac.  577. 

Court  may  dismiss  within  statutory 
period.  While  it  is  the  duty  of  the  trial 
court  to  dismiss  an  action,  where  the  sum- 
mons has  not  been  issued  within  one  year,, 
or  served  and  returned  within  three  years, 
yet  the  court  still  retains  the  discretionary 
power  to  dismiss  for  undue  delay  in  issu- 
ing or  serving  summons,  even  though  the 
delay  has  been  for  a  shorter  period  than 
that  named  in  this  section.  Witter  v, 
Phelps,  163  Cal.  655;  126  Pac.  593.  A 
statutory  provision  for  the  dismissal  of 
an  action,  if  summons  is  not  issued  nor 
served  within  a  given  period,  does  not 
affect  the  power  of  the  court,  in  the  exer- 
cise of  its  discretion,  to  dismiss  the  action, 
for  want  of  prosecution  within  said  period. 
Bernard  v.  Parmelee,  6  Cal.  App.  537;  92 
Pac.  658. 

Appearance  by  defendant.  This  sectiou 
does  uot  require  that  the  appearance  shall 
be  filed  within  three  years,  or  within  any 
specified  time:  the  time  limited  is  for  the 
making  of  an  appearance,  and  appearance 
is    made   when   written   notice    of   ajjpear- 


Legislation  §  581a.  Added  by  Stats.  1907, 
p.  712 ;  the  code  romniissioner  saying,  "A  new 
section  containing  the  matter  in  subd.  7  of  former 
§  581,  but  excepting  from  its  operation  those 
cases  in  which  effective  .iudgment  cannot  be  re- 
covered against  a  defendant,  when  the  failure 
to  serve  process  upon  him  has  been  due  either  to 
his  secreting  himself  within  the  state,  or  to 
absenting  himself  therefrom  to  prevent  such  ser- 
vice." 

This  section  is  an  amendment  of  the  old 
seventh  subdivision  of  §  581,  ante.  See 
note  to  that  section,  ante. 

Where  defendant  secretes  himself. 
Proof  that  the  defendant  secreted  himself 
to  avoid  the  service  of  summons  may  be 
made  in  answer  to  a  motion  for  dis- 
missal. W'ilson  V.  Leo,  19  Cal.  App.  793; 
127  Pac.  1043. 

Summons  must  be  issued  within  one 
year.  A  defendant,  who  specially  appears 
in  the  action  and  moves  for  its  dismissal 
on  the  ground  that  no  summons  has  been 
issued  within  a  year  after  the  action  was 
commenced,  is  entitled,  upon  the  subse- 
quent dismissal  by  the  plaintiff,  to  one 
hundred  dollars  as  costs  to  cover  counsel 
fees.  Caffey  v.  Mann,  3  Cal.  App.  124;  84 
Pac.  424.  AVhere  summons  has  been  issued 
as  against  the  original  defendant  within 
the  year,  the  court  may  bring  in  an  admin- 
istrator as  a  party,  and  direct  the  issuance 
and  service  on  him  of  summons,  more  than 
a  year  after  the  commencement  of  the 
action,  if  the  time  in  which  an  action  can 
be  brought  against  him  as  personal  repre- 
sentative has  not  expired.  Churchill  v. 
Woodworth,  148  Cal.  669;  113  Am.  St.  Rep. 
324;  84  Pac.  155. 

Service  and  return  must  be  made  within 
three  years.  .Summons  must  be  served  and 
return  made  within  three  years  after  the 
commencement  of  the  action.  Bernard  v. 
Parmelee,  6  Cal.  App.  537;  92  Pac.  658. 
Where  there  is  no  appearance  within  the 
time   limited,   and   no   return    of   summons. 


631  DISMISSAL   AFTER  TRANSFER — JUDGMENT   OX    MERITS,   ETC.       §§  581b,  582 


ance  is  piven  to  the  plaintiff.  Anglo-Cali- 
fornian  Hank  v.  Griswold,  153  Cal.  C9'2; 
96  Pac.  35.'i.  A  stii>ulation,  signed  by  tho 
attorneys  for  both  parties,  though  not  filed, 
and  extending  the  time  to  answer,  is  an 
"appearance,"  within  this  section.  Roth  v. 
Superior  Court,  147  Cal.  G04;  82  Pac.  246. 
Notice  of  appearance  ami  consent  to  judg- 
ment  are   not  required  to   be   filed   within 


any  particular  time:  filing  is  required  only 
for  jurisdiction.  AngioC'alifornian  Bank 
V.  Griswold,  153  Cal.  G92;  96  Pac.  353. 
The  defendant  does  not,  by  demurring  and 
moving  for  a  change  of  the  place  of  trial, 
waive  his  right  to  have  the  action  dis- 
missed for  undue  delay  in  making  the  ser- 
vice of  summons.  Witter  v.  Phelps,  163 
Cal.G55;  126  Pac.  593. 


§  581b.  Dismissal  of  actions  after  transfer.  No  action  heretofore  or 
hereai'ter  commenced,  where  the  same  was  not  originally  commenced  in  the 
proper  county,  shall  be  further  prosecuted,  and  no  further  proceedings  shall 
be  had  therein,  and  all  such  actions  heretofore  or  hereafter  commenced  must 
be  dismissed  by  the  court  to  which  the  same  shall  have  been  transferred,  on 
its  own  motion,  or  on  the  motion  of  any  party  interested  therein,  whether 
named  in  the  complaint  as  a  party  or  not,  where  the  costs  and  fees  of  trans- 
mission of  the  pleadings  and  papers  therein  to  the  clerk  or  justice  of  the 
court  to  which  it  is  transferred,  or  of  filing  the  papers  anew,  have  not  been 
paid  by  the  plaintiff  for  one  year  after  the  time  when  such  pleadings  or 
papers  shall  have  arrived  in  the  custody  of  such  clerk  or  justice.  The  clerk 
of  such  court,  or  such  justice  shall,  where  such  court  or  justice  desires  to 
dismiss  an  action  under  the  provisions  of  this  section,  file  anew  such  trans- 
ferred pleadings  and  papers  without  fee. 

Legislations 581b.  Added  by  Stats.  1913,  p.  •.;44. 

§  582.  All  other  judg-ments  are  on  the  merits.  In  all  cases  other  than  those 
mentioned  in  the  last  two  sections,  judgment  must  be  rendered  on  the  merits. 

action   in   any   manner   withdrawn    at   any 


Legislation  §  582.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  149. 

2.  Amendment  by  Stats.  1901,  p.  143;  un- 
constitutional.   See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  712,  (1)  sub- 
stituting "all"  for  "every,"  before  "case,"  and 
(2)  the  word  "two  sections"  for  "section";  the 
code  commissioner  saying,  "Amendment  rendered 
necessary  by  addition  of  last  section  to  the  code." 

Judgment  on  merits,  what  constitutes. 
A  judgment  on  the  merits  is  one  which  de- 
termines, either  upon  an  issue  of  law  or 
of  fact,  which  party  is  right:  a  judgment 
that  a  party  cannot  be  heard  concludes 
only  as  to  that  question.  Oakland  v.  Oak- 
land Water  Front  Co.,  118  Cal.  160;  50 
Pac.  277.  A  judgment  on  the  pleadings  is 
a  judgment  on  the  merits.  Bailey  v.  A<ltnsi 
Indemnity  Co.,  5  Cal.  App.  740";  91  Pac. 
416.  Before  the  enactment  of  §§  5Sla, 
581b,  ante,  a  judgment  of  dismissal,  not 
for  one  of  the  causes  named  in  §  581,  ante, 
was  a  judgment  upon  the  merits.  Ames- 
toy  Estate  Co.  v.  Los  Angeles,  5  Cal.  App. 
273;  90  Pac.  42;  Townsend  v.  Driver,  5 
Cal.  App.  581;  90  Pac.  1071.  It  is  error 
to  strike  out  an  answer  filed  in  time,  but 
served  two  days  afterwards,  and  render 
judgment  by  default  in  favor  of  plaintiff: 
judgment  should  be  rendered,  after  trial, 
on  the  merits.  Lybecker  v.  Murray,  58 
Cal.  186. 

Presumptions  from  judgment  on  merits. 
A  judgment  is  presumed  to  be  rendered 
pursuant  to  this  section,  where  nonsuit 
■was  not  taken  by  the  plaintiff  before  or 
after  verdict,  nor  the  particular  cause  of 


stage  of  the  proceedings,  nor  the  judgment 
without  prejudice;  and  the  court  is  pre- 
sumed to  have  passed  on  all  the  facts  be- 
fore it,  and  granted  the  plaintiff  all  the 
relief  to  which  he  was  entitled,  where, 
having  all  the  facts  before  it,  judgment 
is  rendered  on  the  merits;  under  such  cir- 
cumstances, the  silence  of  the  court  as  to 
further  relief  demanded,  but  not  granted, 
must  be  held  to  be  a  denial  thereof;  and 
the  judgment,  though  erroneous,  is  conclu- 
sive, as  to  parties  and  privies,  until  re- 
versed.   Gray  v.  Dougherty,  25  Cal.  266. 

Judgment  on  pleadings  had  when.  The 
defendant's  right  to  move  for  judgment 
upon  the  pleadings,  where  the  complaint 
fails  to  state  a  cause  of  action,  is  well 
settled.  Hiberuia  Sav.  &  L.  Soc.  v.  Thorn- 
ton, 117  Cal.  481;  49  Pac.  573;  King  v. 
Montgomery,  50  Cal.  115.  Judgment  on  the 
pleadings  is  proper,  where  the  complaint 
warrants  the  granting  of  the  relief  sought, 
and  the  answer  presents  nothing  to  bar  or 
defeat  the  action  (St.  Marv's  Hospital 
V.  Perry,  152  Cal.  338;  92  Pac.  864;  Zany 
V.  Rawhide  Gold  Mining  Co.,  15  Cal.  App. 
373;  114  Pac.  1026);  and  also  where  the 
defendant's  answer,  containing  no  denials 
of  the  allegations  of  the  complaint,  fails 
to  set  out  all  the  facts  showing  that  his 
alleged  causes  of  action  constituted  valid 
counterclaims  (Benham  v.  Connor.  113 
Cal.  168;  45  Pac.  258);  and  also  whenever 
the  answer  fails  to  deny  any  of  the  ma- 


§583 


JUDGMENT,  IN  GENERAL. 


632 


terial  allegations  of  the  complaint,  in  such 
form  as  to  put  the  same  in  issue  (Doll  v. 
Good,  38  Cal.  287);  and  also  where  no  de- 
fense is  alleged  in  the  answer  (Hevden- 
feldt  V.  Jacobs,  107  Cal.  373;  40  Paer492; 
Evinger  v.  Moran,  14  Cal.  App.  328;  112 
Pac.  68):  proof  of  the  averments  in  the 
answer  would  be  immaterial,  and  denials, 
in  such  case,  are  merely  matters  of  law 
(Heydenfeldt  v.  Jacobs,'  107  Cal.  373;  40 
Pac.  492) ;  and  the  court  is  not  precluded 
from  passing  upon  a  pending  motion  for 
judgment  upon  the  pleadings  by  the  fact 
that  it  has  made  an  order  sustaining  a 
demurrer  to  the  answer,  without  leave  to 
amend  (Le  Breton  v.  Stanley  Contracting 
Co.,  15  Cal.  App.  429;  114  Pac.  102S); 
but  a  motion  for  judgment  on  the  plead- 
ings should  not  be  granted,  where  material 
matters,  denied  on  information  and  belief, 
are  not  presumptively  within  the  knowl- 
edge of  the  defendants  (Wickersham  v. 
Comerford,  104  Cal.  494;  38  Pac.  101); 
and  where  two  sufficient  special  defenses 
to  an  action  are  improperly  commingled, 
but  no  objection  is  taken  on  that  ground, 
a  motion  for  judgment  on  the  pleadings 
should  be  denied,  without  reference  to  the 
sufficiency  of  the  denials  of  the  answer 
(Eppinger  v.  Kendriek.  114  Cal.  620;  46 
Pac.  613);  nor  is  the  plaintiff  entitled  to 
judgment  on  the  pleadings,  where  the  an- 
swer pleads  the  statute  of  limitations, 
and  an  estoppel  by  reason  of  a  former 
decision  between  the  same  parties.  Brind 
v.  Gregory,  122  Cal.  4S0;  5-5  Pac.  2.30. 

Motion  for  judgment  on  pleadings.  On 
a  motion  for  judgment  on  the  pleadings, 
by  the  defendant,  any  matter  outside  of 
the  complaint,  or  any  defense  thereto  in 
the    answer,    cannot    be    considered:     the 


motion  should  be  determined  aa  a  de- 
murrer to  the  complaint,  upon  the  same 
grounds,  would  be.  Hibernia  Sav.  &  L. 
Soc.  V.  Thornton,  117  Cal.  481;  49  Pac. 
573.  A  motion  for  a  judgment  on  the 
pleadings,  in  favor  of  the  plaintiff,  is 
similar  in  purpose  and  effect  to  a  demurrer 
to  the  answer  for  insufficiency.  Le  Breton 
V.  Stanley  Contracting  Co.,  15  Cal.  App. 
429;  114 'Pac.  1028.  Where,  pending  the 
motion,  an  amended  answer  is  filed,  the 
motion  depends  upon  the  sufficiency  of 
the  amended  answer.  Evinger  v.  Morau, 
14  Cal.  App.  328;  112  Pac.  68.  It  is  not 
necessary,  on  passing  on  the  motion,  to 
determine  the  sufficiency  of  the  denials 
in  the  original  answer,  where  those  in 
the  amended  answer  are  sufficient.  Mat- 
teucci  v.  Whelan,  123  Cal.  312;  69  Am. 
St.  Kep.  60;  55  Pac.  990.  That  facts  are 
not  definitely  stated  in  the  complaint  is 
unavailing  on  the  motion:  there  must  be 
an  entire  absence  of  some  fact  or  facts 
essential  to  constitute  a  cause  of  action. 
Hibernia  Sav.  &  L.  Soc.  v.  Thornton,  117 
Cal.  481;  49  Pac.  573.  Pleadings  are  con- 
strued most  strongly  against  the  pleader, 
on  a  motion  for  judgment  thereon  (Ben- 
ham  V.  Connor,  113  Cal.  168;  45  Pac.  258); 
and  the  truth  of  the  facts  alleged  in  the 
complaint  are  admitted  for  the  purposes  of 
the  motion  of  the  defendant  for  judgment 
upon  the  pleadings.  Hibernia  Sav.  &  L. 
Soc.  V.  Thornton,  117  Cal.  481;  49  Pac. 
573;  McGowan  v.  Ford,  107  Cal.  177;  40 
Pac.  231. 

Effect  of  erroneous  judgment  in  co\irt  of 
equity.  Equity  will  not  set  aside  a  judg- 
ment for  mere  error,  of  law  or  fact,  in 
the  rendition  of  judgment.  Wickersham 
V.  Comerford,  104  Cal.  494;  38  Pac.  101. 


§  583.  Dismissal  of  actions.  The  court  may  in  its  discretion  dismiss  any 
action  for  want  of  prosecution  on  motion  of  the  defendant  and  after  due 
notice  to  the  plaintiff,  whenever  plaintiff  has  failed  for  two  years  after  an- 
swer filed  to  bring  such  action  to  trial.  Any  action  heretofore  or  hereafter 
commenced  shall  be  dismissed  by  the  court  in  which  the  same  shall  have 
been  commenced  or  to  which  it  may  be  transferred  on  motion  of  the  defend- 
ant, after  due  notice  to  plaintiff  or  by  the  court  on  its  own  motion,  unless 
such  action  is  brought  to  trial  within  five  years  after  the  defendant  has  filed 
his  answer,  except  where  the  parties  have  stipulated  in  writing  that  the  time 
may  be  extended. 


Legislation  §  583. 
p.  244. 


Added     by     Stats.     1905, 


Dismissal  for  want  of  prosecution  is 
not  on  merits.  The  dismissal  of  an  ac- 
tion for  lack  of  prosecution  is  without 
regard  to  the  merits  or  demerits  of  the 
cause  of  action.  Bell  v.  Solomons,  162  Cal. 
105;  121  Pac.  377. 

Dismissal  without  restoration  of  records. 
The  trial  court  has  jurisdiction  to  dismiss 
an  action,  the  record  of  which  has  been 
destroyed;  and  this  power  is  not  depend- 
ent   upon    a    restoration    of    the    record. 


Bell  V.  Solomons,  162  Cal.  105;  121  Pac. 
377. 

Effect  of  stipulation  for  extension.  The 
failure  to  bring  an  action  to  trial  within 
five  years  after  answer  filed  does  not  neces- 
sitate its  dismissal,  where  the  parties  stipu- 
lated in  writing  for  the  extension.  Nathan 
V.  Dierssen,  164  Cal.  607;  130  Pac.  12. 

Order  dismissing  entire  case  appealable. 
An  order  dismissing  and  disposing  of  an 
entire  case  is  a  final  judgment,  and  ap- 
pealable. Dempsey  v.  Underhill,  156  Cal. 
718;  106  Pac.  73. 


633  JUDGMENT  UPON   FAILURE  TO  ANSWER.  §  585 

CHAPTER  II. 

jrDGMKXT  UPON   FAILI'HK  TO  ANSWER. 
J  585.      In  wh«t  cases  judgment  may  be  had  upon  failure  of  defendant  to  answer. 

§  585.  In  what  cases  judgment  may  be  had  upon  failure  of  defendant 
to  answer.  Juclp:ment  may  be  had,  if  the  defendant  fails  to  answer  the 
complaint,  as  follows: 

1.  In  an  action  arising  upon  contract  for  the  recovery  of  money  or  dam- 
ages only,  if  the  defendant  has  been  personally  served  and  no  answer  has 
been  filed  with  the  clerk  of  the  court  within  the  time  specified  in  the  sum- 
mons, or  such  further  time  as  may  have  been  fjranted,  the  clerk,  upon 
application  of  the  plaintiff,  must  enter  the  default  of  the  defendant,  and 
immediately  thereafter  enter  judgment  for  the  amount  demanded  in  the 
complaint,  including  the  costs,  against  the  defendant,  or  against  one  or 
more  of  several  defendants,  in  the  cases  provided  for  in  section  four  hun- 
dred and  fourteen. 

2.  In  other  actions,  if  the  defendant  has  been  personally  served  and  no 
answer  has  been  filed  with  the  clerk  of  the  court  within  the  time  specified 
in  the  summons,  or  such  further  time  as  may  have  been  granted,  the  clerk 
must  enter  the  default  of  the  defendant;  and  thereafter  the  plaintiff  may 
apply  to  the  court  for  the  relief  demanded  in  the  complaint.  If  the  taking 
of  an  account,  or  the  proof  of  any  fact,  is  necessary  to  enable  the  court  to 
give  judgment,  or  to  carry  the  judgment  into  effect,  the  court  may  take  the 
account  or  hear  the  proof,  or  may,  in  its  discretion,  order  a  reference  for 
that  purpose.  And  where  the  action  is  for  the  recovery  of  damages,  in 
whole  or  in  part,  the  court  may  order  the  damages  to  be  assessed  by  a  jury ; 
or  if,  to  determine  the  amount  of  damages,  the  examination  of  a  long 
account  is  involved,  by  a  reference  as  above  provided. 

3.  In  all  actions  where  the  service  of  the  summons  was  by  publication, 
the  plaintiff,  upon  the  expiration  of  the  time  for  answering,  may,  upon 
proof  of  the  publication,  and  that  no  answer  has  been  filed,  apply  for  judg- 
ment ;  and  the  court  must  thereupon  require  proof  to  be  made  of  the  alle'-:a- 
tions  of  the  complaint;  and  if  the  defendant  is  not  a  resident  of  the  state, 
must  require  the  plaintiff,  or  his  agent,  to  be  examined,  on  oath,  respecting 
any  payments  that  have  been  made  to  the  plaintiff",  or  to  any  one  for  his 
use,  on  account  of  any  demand  mentioned  in  the  complaint,  and  may  render 
judgment  for  the  amount  which  he  is  entitled  to  recover;  provided,  that, 
in  all  cases  affecting  the  title  to  or  possession  of  real  property,  Avhere  the 
service  of  the  summons  was  by  publication  and  the  defendant  has  failed 
to  answer,  no  judgment  shall  be  rendered  upon  proof  of  mere  occupancy, 
unless  such  occupancy  shall  have  continued  for  the  time  and  shall  have  been 
of  the  character  necessary  to  confer  title  by  prescription,  and  in  all  cases 
where  the  plaintiff  bases  his  claim  upon  a  paper  title,  the  court  shall  require 
evidence  establishing  plaintiff's  equitable  right  to  judgment  before  render- 
ing such  judgment;  provided,  further  however,  that  in  actions  involving 
merely  the  possession  of  real  property  where  the  complaint  is  verified  and 
shows  by  proper  allegations  that  no  party  to  the  action  claims  title  to  the 
real  property  involved,  either  by  prescription,  accession,  transfer,  will  or 
succession  but  only  the  possession  thereof,  the  court  may  render  judgment 
upon  proof  of  occupancy  by  plaintiff  and  ouster  by  defendant, 


§585 


JUDGMENT  UPON  FAILURE  TO  ANSWER. 


634 


Validity  of  service  of  summons.     Ante,  |  411. 
Kames,  fictitious,  amending,  etc.     Ante,  §  474. 
Appeal.      Post,  §  939. 
Award,  judgment  on.      Post,  §  1286. 
Confession,  judgment  by.      Post,  §§  1132  et  seq. 
Dollars    and    cents,    without    fractions,    money 
Judgments  must  be  in.      Pol.  Code,  §  3274. 
Gold  coin,  judgment  in.      Post,  §  667. 
Judgment. 

1.  Generally.     Docketing,     satisfaction,    etc. 
Post,  §§  664-675. 

2.  Void,  etc.,  setting  aside.     Ante,  §  473. 
Objections,    waiver    of,    by    not    demurring    or 

answering.     Ante,  §  434. 

Pending,  action,  when.     Post,  §  1049. 

Mandamus,  writ  of,  not  granted  by  default. 
See  post.  §  1088. 

Default. 

1.  In  action  for  forcible  entry  and  detainer. 
■See  post.  §  1169. 

2.  In  justice's  court.  See  post,  §§  871  et  seq. 
8.  In  escheat  proceedings.  See  post,  §  1271. 
4.  Divorce  not  granted  by.  See  Civ.  Code,  §  130. 

Legislation  §  585.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  150. 

2.  Amendment  by  Stats.  1901,  p.  144;  un- 
constitutional.     See   note   ante,  §  5. 

3.  Amended  by  Stats.  1905.  p.  42,  (1)  in 
subd.  1,  substituting:  "demanded  in  the  prayer 
of  the  complaint"  for  "specified  in  the  sum- 
mons"; (2)  in  subd.  2,  first  sentence,  substitut- 
ing "may  apply  to  the  court"  for  "may  apply 
at  the  first  or  any  subsequent  term  of  the 
court." 

4.  Amended  by  Stats.  1907,  p.  712,  (1)  in 
subd.  1,  striking  out  "prayer  of  the,"  in  the 
phrase  "demanded  in  the  prayer  of  the  com- 
plaint"; (2)  substituting  "is"  for  "be,"  before 
"involved"  (in  subd.  2)  and  before  "not  a  resi- 
dent" (in  subd.  3);  the  code  commissioner  say- 
ing, "Amendments  simply  change  the  verb  to 
the  indicative,  to  conform  to  the  same  change 
elsewhere." 

5.  Amended  by  Stats.  1915,  p.  932,  (1)  at 
the  beginning  of  subds.  1  and  2,  inserting  in 
the  phrase  "if  no  answer  has  been  filed,"  the 
words  "the  defendant  has  been  personally  served 
and";  (2)  in  subd.  3,  (a)  inserting  "all"  in  the 
phrase  "In  all  actions,"  (b)  substituting  "alle- 
gations of  the  complaint"  for  "demand  men- 
tioned in  the  complaint,"  (c)  substituting  "any 
demand  mentioned  in  the  complaint"  for  "such 
demand,"  and  (d)  inserting  at  the  end  of  the 
subdivision  the  two  provisos. 

Answer,  what  constitutes.  A  demurrer  is 
an  answer,  within  this  section;  a  defend- 
ant does  not  appear  and  demur  to  a  com- 
plaint until  his  demurrer  is  filed.  Fletcher 
V.  Maginnis,  136  Cal.  362;  68  Pac.  1015. 

Entry  of  default  by  clerk.  The  clerk 
can  enter  default,  only  under  the  express 
provisions  of  this  section  (Kennedy  v. 
Mulligan,  136  Cal.  556;  69  Pac.  291;  Cross- 
man  V.  Vivienda  Water  Co.,  136  Cal.  571; 
69  Pac.  220;  Oliphant  v.  Whitney,  34  Cal. 
25),  or  where  the  defendant  has  failed  to 
appear  within  the  time  specified  in  the 
summons,  or  within  such  further  time  as 
may  be  granted.  Kennedy  v.  Mulligan, 
136  Cal.  556;  69  Pac.  29;  People  v.  Weil, 
53  Cal.  253;  Wharton  v.  Harlan,  68  Cal. 
422;  9  Pac.  727.  He  must,  upon  the  ap- 
plication of  the  plaintiff,  enter  default, 
notwithstanding  the  service  of  a  pleading 
if  it  has  not  been  filed  in  time  (Fletcher 
V.  Maginnis,  136  Cal.  362;  68  Pac.  1015); 
and  he  may  enter  default,  where  a  motion 
to  strike  the  answer  from  the  files  is 
granted,  and  the  time  for  pleading  to  the 
complaint  has  expired  (Rose  v.  Lelande,  20 


Cal.  App.  502;  129  Pac.  599);  but  he  has  no 
authority  to  enter  default,  where  the  court 
has  set  aside  and  vacated  the  service  of 
summons.  Elder  v.  Grunsky,  127  Cal.  67;  59 
Pac.  300.  In  entering  a  default  he  acts  min- 
isterially; he  has  no  judicial  power  to  pass 
upon  the  sufficiency  of  an  answer.  Rose  v. 
Lelande,  20  Cal.  App.  502;  129  Pac.  599. 

Entry  of  judgment  by  clerk  upon  de- 
fault. The  clerk  is  a  minister  or  servant 
of  the  law,  to  act  where  the  law  orders 
him  to  act;  then,  only,  is  his  action  valid. 
Junkans  v.  Bergin,  64  Cal.  203;  30  Pac. 
627.  His  authority  to  enter  judgment  by 
default  is  limited  to  actions  arising  upon 
contracts  for  the  recovery  of  money  or 
damages  only.  Shay  t.  Chicago  Clock  Co., 
Ill  Cal.  549;  44  Pac.  237;  People  v.  Weil, 
53  Cal.  253.  No  intendments  are  indulged 
in  support  of  his  acts:  what  he  does  must 
be  within  the  authority  conferred  upon 
him  by  statute.  Providence  Tool  Co.  v. 
Prader,  32  Cal.  634;  91  Am.  Dec.  598.  He 
cannot  enter  a  judgment  by  default  in 
an  action  for  damages  for  trespass.  Shay 
V.  Chicago  Clock  Co.,  Ill  Cal.  549;  44 
Pac.  237.  He  must  ascertain  from  the 
complaint  that  the  action  is  of  the  kind 
mentioned  in  the  first  subdivision  of  this 
section,  and  he  must  ascertain  when  and 
where  the  summons  was  served,  and 
whether  the  defendant  is  in  default:  these 
acts  are  ministerial  as  contradistinguished 
from  judicial  acts.  Providence  Tool  Co.  v. 
Prader,  32  Cal.  634;  91  Am.  Dec.  598;  and 
see  Bond  v.  Pacheco,  30  Cal.  530;  Cross- 
man  v.  Vivienda  Water  Co.,  136  Cal.  571; 
69  Pac.  220;  Wharton  v.  Hanlan,  68  Cal. 
422;  9  Pac.  727.  His  action  in  estimating 
and  adding  the  amount  of  an  attorney's 
fee  to  the  judgment  is  as  properly  minis- 
terial as  is  his  calculation  of  interest  upon 
the  principal  sum  of  a  note  sued  on.  Alex- 
ander V.  McDow,  108  Cal.  25;  41  Pac.  24. 
He  may,  in  an  action  on  a  note  payable 
in  gold  coin,  enter  a  judgment  payable  in 
gold  coin,  if  the  defendant  suffers  a  de- 
fault (Harding  v.  Cowing,  28  Cal.  212); 
and  he  may  enter  a  judgment  against  a 
defaulting  defendant,  without  at  the  same 
time  entering  a  judgment  against  a  co- 
defendant  who  has  not  been  served  (Ed- 
wards V.  Hellings,  103  Cal.  204;  37  Pac. 
218);  and  he  may  enter  judgment  by  de- 
fault in  a  joint  action  against  several 
defendants,  only  when  they  have  been 
served  and  have  failed  to  answer  (.Tunkans 
V.  Bergin,  64  Cal.  203;  30  Pac.  627);  and 
he  has  power  to  enter  the  separate  de- 
faults of  those  defendants  who  have  been 
served  with  summons  and  have  not  an- 
swered, and  to  enter  a  joint  judgment  by 
default  against  all  of  those  served,  al- 
though other  of  the  defendants  have  not 
been  served;  but  he  has  no  power  to  enter 
a  judgment  by  default  against  only  a  part 
of  the  defendants  who  have  been  served 
and  have  not  answered  (Wharton  v.  Har- 
lan, 68  Cal.  422;  9  Pac.  727);  nor  can  he 


635 


SERVICE   AND   FORM    OF   SUMMONS — WAIVER — VALIDITY. 


§585 


enter  judgment  for  an  amount  in  excess 
of  that  callod  for  in  the  complaint.  Alex- 
ander V.  McDow,  108  Cal.  25;  41  Pac.  24. 
P^xct'ss  of  power  exercised  by  the  clerk,  in 
entering  judgment  by  default,  which  ap- 
j^ears  on  the  face  of  the  record  and  remlers 
the  judgment  void,  may  be  set  aside  upon 
motion.  Crossman  v.  Vivientla  Water  Co., 
13()  Cal.  571;  69  Pac.  220.  The  provision 
that  the  clerk  must  enter  judgment  imme- 
diately after  entering  default  is  merely 
directory:  his  failure  to  do  so  does  not 
render  void  a  judgment  subsequently  en- 
tered upon  such  default;  nor  can  the  de- 
fendant invoke  such  failure  for  the  pur- 
pose of  annulling  the  judgment,  to  which 
he  has  no  other  defense.  Edwards  v.  Hel- 
lings,  103  Cal.  204;  .37  Pac.  218. 

Judgment,  or  entry  of  default,  where 
service  is  by  publication.  A  judgment  by 
default,  where  the  service  of  summons  was 
bj'  publication,  is  not  void  on  its  face, 
where  it  contains  a  recital  of  due  service, 
if  there  is  nothing  in  the  record  incon- 
sistent therewith.  Howard  v.  McChesnev, 
103  Cal.  53G;  37  Pac.  523.  The  entry  of 
a  money  judgment  against  a  non-resident, 
upon  service  of  summons  by  publication, 
is  unauthorized,  where  there  is  not  shown 
to  be  property  of  such  non-resident  within 
this  state,  upon  which  the  court  has  juris- 
diction to  cause  its  judgment  and  decrees 
to  operate.  Merchants'  Nat.  Union  v.  Buis- 
seret,  15  Cal.  App.  444;  115  Pac.  58.  A 
publication  of  summons  which  omits  the 
notice,  that,  unless  the  defendant  appears 
and  answers,  the  plaintiff  will  apply  to 
the  court  for  the  relief  demanded  in  the 
complaint,  does  not  authorize  the  clerk  to 
enter  the  default  of  the  defendant.  People 
V.  Weil,  53  Cal.  253. 

Service  of  process,  and  proof  thereof. 
The  court  acquires  jurisdiction  to  enter 
default  by  service  of  process,  and  does 
not  lose  jurisdiction  by  neglecting  to  make 
proof  of  such  service  a  matter  of  record. 
Hibernia  Sav.  &  L.  Soc.  v.  Matthai,  116 
Cal.  424;  48  Pac.  370;  Sichler  v.  Look,  93 
•Cal.  600;  29  Pac.  220;  and  see  Herman  v. 
Santec,  103  Cal.  519;  42  Am.  !St.  Eep.  145; 
37  Pac.  509;  Reinhart  v.  Luo^o,  86  Cal.  395; 
21  Am.  St.  Rep.  52;  24  Pac.  1089.  An 
amended  complaint,  which  merely  brings 
in  new  parties,  in  which  a  defaulting  de- 
fendant is  not  interested,  and  which  is 
not  an  amendment  in  matter  of  substance 
as  to  such  defendant,  does  not  open  the 
default,  nor  require  the  service  of  the 
amended  complaint  upon  the  defaulting 
partv.  San  Diego  Sav.  Bank  v.  Goodsell, 
137  Cal.  420;  70  Pac.  299.  The  court  has 
no  pov.er  or  authority  to  grant  cross-com- 
plainants affirmative  relief,  where  there 
was  no  service  of  the  cross-complaint. 
Hibernia  Sav.  &  L.  Soc.  v.  Clarke,  110  Cal. 
27;  42  Pac.  425.  An  affidavit  of  service 
of  summons,  which  fails  to  show  any  ser- 
vice thereof,  is  insufficient  to  sustain  a 
judgment  upon  a  direct  appeal   therefrom. 


Linott  V.  Rowlan.l,  119  Cal.  452;  51  Pac. 
687;  and  see  McMillan  v.  Reynolds,  11  Cal. 
372;  Schloss  v.  White,  16  Cal.  65;  Mc- 
Kin  lav  v.  Tuttle,  42  Cal.  570;  People  v. 
Berna'l,  43  ('al.  :',sr,. 

Form  of  summons.  A  variance,  in  the 
summons,  from  the  form  of  words  pre- 
scribed by  the  code,  cannot  mislead  or 
injure  the  defen<lant,  where  the  court  is 
api)lied  to  and  grants  such  relief  as  is 
given  in  the  co<lc,  and  the  relief  does  not 
dilTer  from  nor  exceed  that  demanded  in 
the  comi)laint.  Clark  v.  Palmer,  90  Cal. 
504;  27  Pac.  375. 

Waiver  of  right  to  default  judgment. 
The  defendant  may,  by  his  conduct,  waive 
his  right  to  have  judgment  entered  in  his 
favor,  upon  the  plaintiff's  default  to  his 
cross-complaint.  Madison  v.  Octave  Oil 
Co.,  154,Cal.  708;  99  Pac.  176. 

Hearing  of  evidence  by  the  court.  Un- 
der this  section,  the  court  is  authorized  to 
hear  the  evidence  that  may  be  offered,  as 
against  a  defaulting  defendant,  to  sustain 
the  allegations  of  the  complaint.  Cole  v. 
Roebling  Construction  Co.,  156  Cal.  443; 
105  Pac.  255.  In  an  action  to  determine 
adverse  claims  to  real  property,  a  judg- 
ment by  default  against  the  named  de- 
fendant who  has  been  personally  served 
with  summons  is  not  voi<l  because  evidence 
was  not  required.  Los  Angeles  v.  Los 
Angeles  Farming  etc.  Co.,  150  Cal.  647; 
89  Pac.  615. 

Default  admits  what.  A  default  admits 
the  truth  of  matters  pleaded,  and  must 
therefore  be  construed  to  admit  that  the 
amount  claimed  by  the  complaint  is  both 
reasonable  and  due,  and  no  evicience  is 
requireci  to  be  taken  for  the  purpose  of 
fixing  such  amount,  where  it  is  ascertain- 
able from  the  comjilaint.  Alexander  v. 
McDow,  KiS  Cal.  25;  41  Pac.  24. 

Findings  waived  by  default.  Defend- 
ants who  make  default  and  fail  to  appear 
at  the  trial  waive  findings.  Hibernia  Sav. 
&  L.  Soc.  V.  Clarke,  110  Cal.  27;  42  Pac. 
425. 

Validity  of  default  judgment.  A  de- 
fault judgment  against  a  cor])oration  is 
not  voiil  upon  its  face,  where  the  com- 
plaint states  a  cause  of  action,  and  the 
summons  was  duly  served  on  the  president 
of  the  corporation,  and  the  default  and 
judgment  were  dulv  entered.  Robinson  v. 
Blood,  151  Cal.  504;' 91  Pac.  258.  A  formal 
entry  of  default  need  not  be  first  made, 
to  confer  jurisdiction  on  the  court  to  enter 
judgment  against  a  defaulting  party,  even 
where  no  notice  of  hearing  was  given. 
Wakefield  v.  Wakefield,  16  Cal.  App.  113; 
116  Pac.  309.  A  vali<l  judgment  by  de- 
fault may  be  rendered  by  the  court,  though 
no  formal  default  has  been  entereil:  the 
default  limits  the  time  during  which  the 
defendant  may  file  his  answer,  and  that 
time  never  extends  beyond  trial  and  judg- 
ment. Herman  v.  Santee,  103  Cal.  519;  42 
Am.  St.  Rep.  145;  37  Pac.  509.     A  defend- 


585 


JUDGMENT    UPON   FAILURE    TO   ANSV^T:B. 


63ff 


ant  is  entitled  to  receive  notice  of  an 
order  dismissing  a  demurrer,  before  any 
default  can  be  taken  against  him  under 
a  rule  of  the  court  (see  Winchester  v. 
Black,  134  Cal.  125;  66  Pac.  197);  but 
■where  the  defendant's  attorney  is  present 
in  court  upon  the  overruling  of  his  de- 
murrer, and  asks  and  obtains  leave  to 
file  an  answer  within  five  days,  he  waives 
written  notice,  and  judgment  by  default 
is  rightly  entered  at  the  expiration  of  such 
time.    Barron  v.  Deleval,  5S  Cal.  95. 

Discretion  of  court  in  setting  aside  de- 
fault. The  discretion  of  the  court  in  set- 
ting aside  a  default  is  best  exercised  when 
it  tends  to  bring  about  a  judgment  upon 
the  merits  of  the  controversy  between  the 
parties.  Nicoll  v.  Weldon,  130  Cal.  666; 
63  Pac.  63;  Winchester  v.  Black,  134  Cal. 
125;  66  Pac.  197.  A  motion  to  set  aside 
a  default  rests  so  largely  in  the  discretion 
of  the  trial  court,  that  its  action  thereon 
will  very  rarely  be  disturbed  upon  appeal. 
Langford  v.  Langford,  136  €al.  507;  69 
Pac.  235;  and  see  Winchester  v.  Black,  134 
Cal.  125;  66  Pac.  197. 

Vacation  of  default  judgment.  No  affi- 
davit of  merits  is  required  in  a  proceed- 
ing by  motion,  made  and  granted,  to 
vacate  a  judgment  by  default,  as  having 
been  prematurely  entered.  Quan  Quock 
Fong  v.  Lyons,  20  Cal.  App.  66S;  130  Pac. 
33.  One  who  succeeds  to  property  subject 
to  a  void  default  judgment  may  appear 
to  have  the  judgment  vacated,  though  not 
a  party  to  the  judgment.  Crossman  v. 
Vivienda  Water  Co.,  136  Cal.  571;  69  Pac. 
220;  People  v.  Mullan.  65  Cal.  396;  4  Pac. 
348;  Borland  v.  Smith,  93  Cal.  120;  28 
Pac.  812;  Malone  v.  Big  Flat  etc.  Mining 
Co.,  93  Cal.  384;  28  Pac.  1063. 

Vacating  default  judgments.  See  note 
ante,  §  473. 

Appeal.  An  appeal  may  be  taken  from 
a  judgment  by  default  entered  by  the 
clerk;  and  the  existence  of  a  remedy  by 
motion  in  the  superior  court  to  set  it  aside, 
if  irregular  or  void,  cannot  affect  the  right 
of  appeal,  nor  justify  a  motion  to  dismiss 
the  appeal.  Jameson  v.  Simonds  Saw  Co., 
144  Cal.  3;  77  Pac.  662. 

Terms  defined.  A  judgment  void  upon 
its  face  is  one  that  appears  to  be  void 
upon  an  inspection  of  the  judgment  roll. 
Crossman  v.  Vivienda  Water  Co.,  136  Cal. 
571;  69  Pac.  220;  and  see  People  v.  Har- 
rison, 84  Cal.  607;  24  Pac.  311. 

Judgment  based  on  false  return  of  process.  See 
note  19  Am.   Dec.   13  7. 

Default  judgment  against  married  woman.  See 
note   134  Am.  St.  Jiip.  i»41. 

Validity  of  default  judgment  awarding  relief 
beyond  prayer  of  complaint.  See  note  11  Ann. 
Cas.   :','i'i. 

Default  judgment  entered  by  clerk  without  re- 
quired order  of  court  as  void  or  voidable.  See 
note   16  Ann.  fas.   1211. 

Right  to  mandamus  to  compel  proper  official  to 
enter  judgment  by  default.  See  note  Ann.  Cas. 
1913B,   344. 

Eight  to  amend  pleadings  after  default  judg- 
ments.   See  note  Ann.  Ca.s.   191315,  481. 


Validity  of  judgment  by  default  rendered 
against  person  in  custody.  See  note  Ann.  Cas. 
1913C,  245. 

Power  of  defendant's  attorney  to  withdraw  an- 
swer and  permit  default  judgment.  See  note  33 
L.  K.   A.   515. 

Assessment  of  damages  by  jury  on  default.  See 
notts   15  L.  K.  A.  G14;   20  L.  R.  A.    (N.  S. )    1. 

Effect  of  default  against  dead  person.  See  note 
49  L.  K.  A.  KJl. 

.Effect  of  default  judgment  beyond  the  scopes 
of  the  relief  asked.  See  note  11  L.  K.  A.  (N.  S.) 
803. 

CODE  COMMISSIONERS'  NOTE.  1.  Gen- 
erally. A  judgment  by  default,  entered  before 
the  expiration  of  the  full  time  allowed  for  an- 
swering, will  be  reversed  on  appeal.  Burt  t. 
Scranton,  1  Cal.  416.  So,  too,  will  a  judgment 
entered  by  default  when  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion. Hallock  V.  Jaudin  &  Co.,  34  Cal.  1G7.  In 
proceedings  to  contest  the  elections  of  county 
officers,  the  contestant  is  not  permitted  to  take 
judgment  by  default.  Keller  v.  Chapman,  34  Cal. 
635.  Where  a  complaint  fails  to  stale  facts  suffi 
cient  to  constitute  a  cause  of  action,  judgment 
thereon  by  default  will  be  reversed  on  appeal. 
Hallock  V.  Jaudin  &  Co.,  34  Cal.  167.  A  de- 
fault may  be  taken  against  a  municipal  corpora- 
tion. Hunt  V.  San  Francisco,  11  Cal.  250.  A 
judgment  by  default  may  be  rendered  against  a 
corporation  incorporated  under  the  laws  of  two 
states.  Dodge  v.  Mariposa  County,  1  Cal.  Unrep. 
398.  A  judgment  by  default  may  be  taken  against 
an  administrator.  Chase  v.  Sv/ain,  9  Cal.  130. 
A  judgment  by  default  can  be  rendered  upon 
an  unliquidated  demand,  where  the  defendant  has 
been  notified  in  the  summons  of  the  amount  for 
which  plaintiff  will  take  judgment.  Hartman  v. 
Williams,  4  Cal.  254.  A  default  on  a  complaint 
containing  special  counts,  defectively  stated,  will 
support  a  judgment;  the  default  is  confession  of 
the  iudcljtedness  for  the  causes  and  on  the  ac- 
counts alleged  in  the  complaint.  Hunt  v.  San 
Francisco,  11  Cal.  250.  In  all  cases  not  within 
the  exception  of  the  statute,  an  answer  without 
a  verification  to  a  verified  complaint  may  be- 
stricken  out  on  motion,  and  application  for  judg- 
ment, as  upon  default,  may  be  made  at  the  same 
time.  Drum  v.  Whiting,  9  Cal.  422.  Where  an 
amended  complaint  in  ejectment  sets  up  title 
acquired  after  commencement  of  action,  and  a 
judgment  by  default  is  regularly  entered,  the 
judgment  is  valid.  Smith  v.  Billett,  15  Cal.  23. 
In  an  action  to  recover  on  a  promissory  note,  and 
to  establish  a  lien  for  the  amount  upon  certain 
real  estate  purchased  with  money  advanced  by 
plaintiff  to  defendant,  and  for  v/hich  advance  the 
note  was  given,  the  clerk  entered  judgment  by  de- 
fault for  the  amount  of  the  note.  Plaintiff, 
having  exhausted  his  remedies  on  this  judgment, 
by  executions  and  proceedings  supplementary 
thereto,  obtained  from  the  court  a  decree  for  the 
equitable  relief  sought  in  the  complaint,  to  wit, 
for  a  lien  upon  and  a  sale  of  the  real  estate. 
Held,  that  this  decree  was  void,  assuming  the 
judgment  against  defendant  to  be  valid.  Such 
judgment,  if  valid,  terminated  the  controversy, 
and  whatever  related  to  the  merits  of  the  case 
was  merged  in  the  judgment.  But  it  is  doubtful 
whether  the  clerk  could  enter  judgment  in  an 
action  of  this  nature,  without  application  to  the- 
court.  Kittridge  v.  Stevens,  16  Cal.  381.  A  mo- 
tion that  defendant  will  move  to  dissolve  an 
attachment  issued  in  a  cause  is  not  such  an  ap- 
pearance in  an  action  as  authorizes  the  clerk 
to  enter  a  judgment  by  default.  Glidden  v. 
Packard,  28  Cal.  649.  A  judgment  in  ejectment 
av.arding  damages,  rendered  on  a  default,  will 
not  be  reversed,  because  it  does  not  appear  that 
the  court  e-xamined  witnesses  as  to  the  amount 
of  the  damages.  Dimick  v.  Campbell,  31  Cal.  238. 
If  the  defendant  demiinds  a  bill  of  particulars, 
and  obtains  an  order  for  leave  to  answer  within 
ten  days  after  the  bill  is  served,  and  a  bill  is 
served  which  does  not  contain  the  items  of  ac- 
count, the  clerk  may  enter  a  default  and  judg- 
ment, if  the  defendant  fails  to  answer  within  ten 
days  thereafter.  Providence  Tool  Co.  v.  Prader, 
32   Cal.   634;    91   Am.  Dec.   598.     A  demurrer  ia. 


€37 


ISSUE.S,    DKKINKD LuVW    AND    FACT, 


§588 


an    answer,    within    the    moanins    of    this    section. 
Oliphant  v.  M  lutney,   :t4   (,"al.   25. 

2.  Clerk  acts  ministerially.  The  clerk,  in  en- 
tering a  jiulfjinent  after  default,  acts  in  a  minis- 
terial capacity,  and  cannot  enter  a  judKni'-nt 
grantinf;  any  relief  beyond  that  warranted  by  the 
facts  Slated  in  the  complaint.  Gray  v.  Palmer, 
28  Cal.  41(i;  Wallace  v.  Kl.lredge,  27  Cal.  495; 
Kelly  V.  Van  Austin,  17  Cal.  5(j4  :  Willson  v. 
Cleaveland.  30  Cal.  192;  Leese  v.  Clark,  28  Cal. 
33;  Providence  Tool  Co.  v.  Prader,  ;i2  Cal.  O:!!  ; 
91  Am.  Dec.  h9H;  Oliphant  v.  Whitney,  34  Cal. 
25.  When  the  law  declares  what  the  judKnient 
shall  be,  a  judRment  on  default  is  the  judgment 
of  the  law,  not  of  the  clerk.  Harding  v.  Cowing, 
28  Cal.  212.  If  a  demurrer  is  filed  within  the 
time  allowed  for  answering,  the  clerk  cannot 
enter  default  or  judgment,  because  the  demurrer 
was  not  served  upon  the  opposite  attorney.  The 
clerk  cannot  hear  evidence  and  determine  whelher 
the  demurrer  or  answer  has  been  served  or  not. 
Oliphant  v.  Whitney,  34  Cal.  25.  The  entry  of 
default,  in  the  proper  case,  is  a  ministerial  act, 
to  be  performed  by  the  clerk  ;  and  the  disqualifica- 
tion of  the  judge  does  not  disqualify  the  clerk. 
People   V.   De  Carrillo,   35   Cal.   37. 

3.  Recitals  by  clerk.  Not  necessary  that  the 
clerk  should  insert  in  the  judgment  a  recital  of 
his  exposition  of  the  preceding  facts.  Leesc  v. 
Clark,  28  Cal.  33. 

4.  Default,  when  service  is  made  on  portion 
of  defendants  only.  Where  two  defendants  are 
jointly  s\ied.  and  service  had  on  both,  the  clerk 
of  the  court  has  no  authority  to  enter  judgment 
by  default  ."igaiMSt  one,  and  his  act  in  so  doing 
is  without  color  of  law.  Stearns  v.  Aguirre,  7 
Cal.  449.  But  see  Kelly  v.  Austin,  post.  In 
an  action  against  defendants  jointly  and  not  sev- 
erally liable,  a  portion  only  of  tliem  were  served 
with  process.  Held,  that  the  clerk  could  not,  on 
the  application  of  plaintiff,  enter  judgment  upon 
default  against  parties  served  only,  and  that  judg- 
ment so  entered  is  void.  The  proper  course  in 
such  a  case  being  to  enter  judgment  against  all 
the  defendants,  but  so  as  to  be  enforced  against 
the  joint  property  of  all,  and  the  property  of 
those  served.  Kelly  v.  Austin,  17  Cal.  ")()4.  But 
see  Tay  v.  Ilawley,  39  Cal.  95,  in  which  it  is 
substantially  held  that  such  a  judgment  is  invalid. 
See  also  §  414  of  this  code.  If  persons  are  served 
who  are  not  named  in  the  complaint,  either  by 
real  or  fictitious  )iames,  it  is  error  to  render 
judgment  against  them  by  default.  Lamping  v. 
Hyatt.  27  Cal.   102. 

5.  Proof  of  facts,  not  required.  Where  the 
complaint  is  verified,  and  the  defendant  fails  to 
answer,  plaintiff  is  entitled  to  judgment  on  the 
complaint,   without   proof  of   the  facts.    Tuolumne 


Uedemption  Co.  y.  Patterson,  18  Cal.  415;  Lick 
v.  Stoekdale,  18  Cal.  219.  See  exceptions  under 
Eubds.  2   and   3   of  this  section. 

6.  Coin  Judgments.  If  the  note  sued  on  is 
payable  in  monry  generally,  and  the  complaint 
contains  a  copy  of  the  same,  the  clerk  cannot, 
after  ('efault,  enter  judgment  payable  in  gold 
coin.  Wallace  v.  Kldrcdgc,  27  Cal.  49.5.  If  the 
complaint  in  an  action  on  a  judgment  contains 
an  allegation  that  the  judgment  sued  on  was  ren- 
dered payable  in  gold  coin,  and  defendant  makes 
default,  the  clerk  should  enter  judgment  payable 
in  the  same  kind  of  money.  Wallace  v.  Kldredge, 
27  Cal.  495.  In  an  action  ui>on  a  note  payable 
in  gold  coin,  if  the  defendant  suffers  a  default, 
the  clerk  may  enter  a  judgment  against  him,  pay- 
able in  gold  .•oiN.  Harding  v.  Cowing,  28  Cal. 
212;   Galland  v.  Lewis,  26  Cal.  47. 

7.  Judgment  entered  by  order  of  court.  Upon 
facts  found,  whether  by  report  of  referee  or  spe- 
cial verdict  of  the  jury,  thi'  action  of  the  court 
must  be  invoked  before  the  judgment  can  be  en- 
tered. Peabody  v.  Phelps,  9  Cal.  224.  If  a  de- 
murrer has  been  filed,  the  clerk  cannot  enter  a 
default  without  an  order  of  the  court,  Oliphant 
V.  Whitney,  34  Cal.  25.  If  a  frivolous  demurrer 
is  filed,  and  leave  is  not  asked  to  file  an  answer, 
it  is  not  error  for  the  court  to  enter  a  default 
of  judgment  upon  overruling  the  demurrer.  Seale 
V.  McLaughlin,  28  Cal.  668.  If  an  answer  is 
filed,  raising  an  issue,  and  a  trial  is  had.  and  wit- 
nesses are  s-vorn  and  examined,  and  the  court 
takes  the  case  into  consideration,  it  cannot  then 
strike  out  the  answer  of  the  defendant  and  enter 
his  default,  and  render  judgment  for  plaintiff. 
Abbott  v.  Douglass,  28  Cal.  295. 

8.  What  a  default  cures  or  admits.  A  defect- 
ive allegation  of  a  fact  may  be  cured  by  default 
or  verdict,  but  not  the  entire  absence  of  any  alle- 
gation whatsoever.  Hentsch  v.  Porter,  10  Cal. 
555;  Barron  v.  Frink,  30  Cal.  489;  People  v. 
Rains,  23  Cal.  137;  Harlan  v.  Smith.  6  Cal.  173; 
McGregor  v.  Shaw,  11  Cal.  47;  Watson  v.  Zim- 
merman, 6  Cal.  46;  but  see  Payne  v.  Treadwell, 
16  Cal.  243.  If  a  person  is  sued  by  a  fictitious 
name,  and  the  return  of  the  sheriff  on  the  sum- 
mons shows  service  on  the  defendant  by  his 
jH-oper  name,  as  "John  Doe.  alias  Westfall,"  a 
default  being  entered,  judgment  may  be  rendered 
against  the  defendant  in  his  true  name,  Westfall, 
without  proof  that  Doe  and  Westfall  are  the 
same.  Curtis  v.  Herrick,  14  Cal.  117;  73  Am. 
Dec.  632. 

9.  Waiver.  The  acceptance  by  plaintiff's  at- 
torney of  service  of  a  demurrer,  filed  by  a  de- 
fendant after  his  default  has  been  entered,  waives 
the  default.    Hestres  v.  Clements,  21  Cal.  425. 


CHAPTER  III. 

ISSUES.     MODE  OF  TEIAL,  AND  POSTPONEMENTS. 


§  588.     Issue  defined,  and  the  different  kinds. 

§  589.     Issue  of  law,  how  raised. 

§  590.     Issue  of  fact,  how  raised. 

§  591.     Issue  of  law,  how  tried. 

§  592.     Issue    of    fact,    how    tried.      When    issues 

both  of   law  and   fact,   the   former  to   be 

first  disposed  of. 


§  593.     Clerk   must   enter  causes  on  the  calendar, 

to  remain  until  disposed  of.    When  may 

be  restored. 
§  594.     Parties  may  bring  issue  to  trial. 
§  595.     Motion  to  postpone  a  trial  involving  title 

to   mining  claim. 
§  596.     In  cases  of  adjournment  a  party  may  have 

the  testimony  of  any  witness  taken. 


§  588.  Issue  defined,  and  the  different  kinds.  Issues  arise  upon  the 
pleadings  when  a  fact  or  a  conclusion  of  law  is  maintained  by  the  one 
party  and  is  controverted  by  the  other.     They  are  of  two  kinds: 

1.  Of  law ;  and, 

2.  Of  fact. 


1.  Of  law  and  fact.    See  post.  §§  589,   590 

2.  Of     fact,    in    justice's    court.      See    post, 
5§  878    et    seq. 

Legislation  8  588.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  151  (New  York  Code, 
§  248),  which  read:   "An  issue  arises  when  a  fact 


or  conclusion  of  law  is  maintained  by  the  one 
party,  and  is  controverted  by  the  other.  Issues 
are  of  two  kinds:    1.   Of  law;  and,  2.   Of  fact." 

Construction  of  sections.  The  provis- 
ious  of  this  section  and  §§  656,  657,  post, 
do  not  apply  to  every   order  that   may  be- 


§§  589,  590 


ISSUES — MODE  OF   TRIAL,  AND    POSTPONEMENTS. 


638 


made  ex  parte,  or  by  the  court  on  its 
owu  motion,  simply  because  the  court  has 
permitted  v/ritten  objections  to  be  filed. 
Leach  v.  Pierce,  93  Cal.  614;  29  Pac.  235. 
It  is  not  within  the  discretionary  power 
of  the  court  to  dispense  with  the  provis- 
ions of  this  section  and  §§  589,  590,  post; 
yet  such  provisions  are  not  violated  by  a 
decision  of  the  appellate  court,  that  a 
party,  by  his  conduct  at  the  trial,  is  es- 
topped from  asserting,  on  appeal,  for  the 
first  time,  that  a  fact  found  by  the  trial 
court,  although  outside  of  the  issues,  was 
not  within  the  issues  made  by  the  plead- 
ings. Ortega  v.  Cordero,  88  Cal.  221;  26 
Pac.  80. 

Issue     arises     when.     An    issue    arises 
when  a  fact  or  conclusion  of  law  is  main- 


tained by  one  party,  and  is  controverted 
by  the  other  (Harris  v.  San  Francisco 
Sugar  etc.  Co.,  41  Cal.  393);  and,  by  im- 
plication of  law,  upon  new  matter  in  the 
answer,  deemed  controverted  by  the  oppo- 
site party.  Eogers  v.  Eiverside  Land  etc. 
Co..  132  Cal.  9;  64  Pac.  95. 

Motion  for  new  trial.  AVhenever,  under 
the  pleadings  in  a  suit,  an  issue  of  fact 
is  presented  to  a  court,  which  is  to  be 
determined  by  the  preponderance  of  evi- 
dence on  the  issue,  a  party  is  entitled, 
after  a  decision  or  finding  thereon,  to  have 
the  court  re-examine  it  upon  a  motion 
for  a  new  trial.  People  v.  Bank  of  San 
Luis  Obispo,  152  Cal.  261;  92  Pac.  481. 


CODE    CO]VIMISSIONEES'    NOTE. 

Schenck,    11    How.    Pr.    500. 


Pardee    v. 


p.    62,    Kerr   ed.    p.    88,    which   did   not   have   the 
comma  nor  the  word  "or"  after  "answer." 

CODE  COMMISSIONUES'  NOTE.    Stats.  1854, 
p.  88. 


§  589.     Issue  of  law,  how  raised.     An  issue  of  law  arises  upon  a  demurrer 
to  the  complaint  or  answer,  or  to  some  part  thereof. 

Issues   of   law,   how  raised   in  justice's   court. 

See  post,  §  879. 

Legislation  §  589.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  152  (New  York  Code, 
§  249),   as   amended   by   Stats.    1854,   Redding   ed. 

§  590.     Issue  of  fact,  how  raised.     An  issue  of  fact  arises — 

1.  Upon  a  material  allegation  in  the  complaint  controverted  by  the  an- 
swer ;  and, 

2.  Upon  new  matters  in  the  answer,  except  an  issue  of  law  is  joined 

thereon. 

no  place  in  an  action  to  foreclose  a  mort- 
gage, where  the  defendant  fails  to  an- 
swer. Waller  v.  Weston,  125  Cal.  201;  57 
Pac.  892.  A  finding  is  erroneous  which 
is  outside  of  any  issue  presented  in  the 
case;  and  if  on  a  material  allegation,  it  is 
against  the  admissions  of  the  pleadings, 
and  a  judgment  based  thereon  is  erroneous. 
Moynihan  v.  Drobaz,  124  Cal.  212;  71  Am. 
St.  Rep.  46;  56  Pac.  1026.  Issues  of  fact 
upon  which  findings  are  permitted  or  re- 
quired are  only  those  specified  in  this 
section.  Waller  v.  Weston,  125  Cal.  201  f 
57  Pac.  892. 

Issues  in  probate  accounts.  The  manner 
in  which  the  accounts  of  an  executor  are 
usually  made  up,  and  the  manner  in  which 
objections  thereto  are  usually  presented, 
do  not  conduce  to  the  development  of 
issues,  such  as  arise  upon  pleadings  in  civil 
actions,  and  to  which  findings  are  re- 
quired to  be  responsive.  Estate  of  Levin- 
son,  108  Cal.  450;  41  Pac.  4S3;  42  Pac. 
479;  Miller  v.  Lux,  100  Cal.  609;  35  Pac. 
345, 639. 

Action  of  court  reviewed  how.  The 
mode  of  reviewing  the  action  of  the  court 
uj)on  an  issue  of  fact  is  the  same,  whether 
it  is  an  action  at  law  or  a  suit  in  equity: 
there  must  be  a  motion  for  a  new  trial. 
Harris  v.  San  Francisco  Sugar  Eefining 
Co.,  41  Cal.  393. 

New  trial.  A  determination  of  an  issue 
of  fact  is  the  verdict  or  decision  sought  to. 


Issues  of  fact,   in  justice's  court,   how  raised. 

See  post,  §  880. 

Legislation  §  590.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  153  (New  York  Code, 
§  250),  as  amended  by  Stats.  1854,  Redding  ed. 
p.  62,  Kerr  ed.  p.  88,  which  had  "therein"  in- 
stead of  "thereon." 

Issue  of  fact  raised  how.  An  issue  of 
fact  arises,  only  where  a  material  aver- 
ment of  fact  is  made  on  the  one  side 
and  controverted  on  the  other:  the  law 
does  not  raise  issues  of  fact.  Crackel  v. 
Crackel,  17  Cal.  App.  600;  121  Pac.  295. 
The  effect  of  §  130  of  the  Civil  Code,  pro- 
viding that  the  court  shall,  upon  default 
of  the  defendant  in  an  action  for  divorce, 
require  proof  of  the  facts  alleged  before 
granting  relief,  is  not  to  raise  an  "issue 
of  fact."  Foley  v.  Foley,  120  Cal.  33;  65 
Am.  St.  Rep.  147;  52  Pac.  122.  An  issue 
of  fact  is  raised,  where  a  written  oppo- 
sition is  filed  to  a  petition  for  letters 
testamentary,  alleging  the  incompetency  of 
the  petitioner,  and  the  petitioner  files  a 
written  answer  denying  the  facts  so  al- 
leged (Estate  of  Bauquier,  88  Cal.  302;  26 
Pac.  178,  532);  but  there  is  no  issue  of 
fact  as  to  an  allegation  of  the  complaint 
not  controverted  in  the  answer.  Yaeger  v. 
Southern  California  Ry.  Co.,  5  Cal.  Unrep. 
870;  51  Pac.  190. 

Findings  proper  wheiL  The  court  can- 
not projierly  make  fimlings  of  fact  and 
conc-jusiojis  of  law,  unless  issues  are  joined 
and   a   trial   thereof   had;    and   they   have 


639 


ISSUES,   HOW    TRIED — JURY    TRIAL. 


§§591,592 


CODE  COMMISSIONERS'  NOTE. 
Shafter,  32  Cal.  17G. 


Marshall  T. 


Trial  by  court,  generally.    Post.  §§  (i!il  et  seq. 
Issues  of  law,  in  Justice's  court. 

1.  How  raised.    Sci>  post,  §  879. 

2.  How  tried.    See  po.st,  §  881. 

Legislation  8  591.  Enactod  March  11,  1872; 
based  on  Practice  Act,  §  1.51,  which  read:  "An 
issue  of  law  shall  be  tried  by  the  court,  unless  it 
be  referred,  upon  consent,  as  provided  in  chapter 
VI  of  this  title." 

Trial,  defined.  A  trial  is  the  examina- 
tion, before  a  competent  tribunal,  accortl- 
ing  to  law,  of  the  facts  or  the  law  put 
in  issue  in  a  cause,  for  the  purpose  of 
determining  such  issue:  when  a  court 
hears  and  determines  any  issue  of  fact 
or  of  law,  for  the  purjjose  of  determining 
the  rights  of  the  parties,  it  may  be  con- 
sidered a  trial.  Tregambo  v.  Comanche 
Mill  etc.  Co.,  57  Cal.  501;  Goldtree  v. 
Spreckels,  135  Cal.  666.     The  trial,  by  the 


be  set  aside  when  a  new  trial  is  asked 
under  the  code.  Harris  v.  San  Francisco 
Sugar  Refining  Co.,  41  Cal.  393. 

§  591.     Issue  of  law,  how  tried.     An  is.sue  of  law  must  be  triod  by  the 
court,  unless  it  is  referred  upon  consent. 

court,  of  an  issue  of  law,  upon  a  demurrer 
to  the  complaint,  without  leave  to  amend, 
is  a  trial  of  the  cause,  which  involves  a 
judgment  of  dismissal,  and  precludes  the 
right  of  the  plaintiff  to  dismiss  the  action 
before  trial,  under  the  statute  providing 
for  the  dismissal  of  the  cause  before  trial. 
Coidtree  v.  Spreckels,  135  Cal.  GOG;  67 
I'ac.  101)1. 

Trial  of  issues  on  appeal  from  justice's 
court.    .See  note  post,  §§  5'J2,  !t7G. 

CODE  COMMISSIONERS'  NOTE.  A  trial  i» 
the  e.\amiiiation  before  a  comi)eteiil  tribuiinl,  ac- 
cording to  the  law,  of  the  facts,  or  a  question  of 
law  i)ut  in  is.sue  in  a  cause,  for  the  purpose  of 
determining  such  issue.  Mulford  v.  Kstiidillo.  .'i2 
Cal.  131.  Until  a  decision  has  been  entered  in 
the  minutes,  or  reduced  to  writing  by  the  judge, 
and  signed  by  him,  and  filed  with  the  clerk,  a 
case  has  not  been  tried.  Hastings  v.  Hastings, 
31  Cal.  95. 

§  592.  Issue  of  fact,  how  tried.  When  issues  both  of  law  and  fact,  the 
former  to  be  first  disposed  of.  In  actions  for  the  recovery  of  specific,  real, 
or  personal  property,  with  or  without  damages,  or  for  money  claimed  as 
due  upon  contract,  or  as  damages  for  breach  of  contract,  or  for  injuries, 
an  issue  of  fact  must  be  tried  by  a  jury,  unless  a  jury  trial  is  waived,  or  a 
reference  is  ordered,  as  provided  in  this  code.  AVhere  in  these  cases  there 
are  issues  both  of  law  and  fact,  the  issue  of  law  must  be  first  disposed  of. 
In  other  cases,  issues  of  fact  must  be  tried  by  the  court,  subject  to  its  power 
to  order  any  such  issue  to  be  tried  by  a  jury,  or  to  be  referred  to  a  referee,, 
as  provided  in  this  code. 

law  courts,  and  in  such  case  the  party  can- 
not be  deprived  of  his  constitutionalprivi- 
lege  of  jury.  Hughes  v.  Dunlap,  91  Cal. 
585;  27  Pac.  642.  The  right  to  a  trial  by 
jury  is  secured  to  the  defendant  by  this 
section;  and  a  demand  therefor  is  not 
necessary  in  an  action  for  the  recovery  of 
possession  of  personal  propcrtv.  Swasey 
v.  Adair,  88  Cal.  179;  25  Pac.  1119.  A 
written  demand  for  a  jury  must  be  held 
to  be  a  continued  refusal  to  waive  the 
right  thereto;  and  a  party  is  not  required 
to  repeat  the  demand  after  the  court  has 
once  denied  the  application;  and  the  ac- 
tion of  the  court,  after  such  application, 
in  proceeding  to  try  the  case  for  recovery 
of  possession  of  certain  personal  property, 
without  a  jury,  is  reversible  error.  Swasey 
V.  Adair,  88  Cal.  179;  25  Pac.  1119.  The 
right  to  a  trial  by  jury  where  an  action 
is  brought  to  recover  specific  real  prop- 
erty, is  not  defeated  by  any  particular 
form  which  the  action  mav  take.  Davis  v. 
Judson,  159  Cal.  121;  113  Pac.  147;  Hughes 
V.  Dunlap,  91  Cal.  385;  27  Pac.  642.  While 
a  plaintiff  out  of  possession  may  bring  a 
suit  in  equity,  un.ler  §  738.  post,  to  deter- 
mine  an   adverse  claim   against  a   defend- 


Generally,  as  to  jury  trial.    Post,  §§  600-628. 
Waiver  of  jury  trial.    Post,  §  631. 
Reference.    Post,  S§  fi3S-6.iri. 
Court,  trial  by.    Post,  §§  631-636. 
Issues  of  fact. 

1.  lu  justice's   court,    how  tried.     See   post, 
§  882. 

2.  In  forcible  entry  and  detainer,  to  be  tried 
by  jury.     See  post,  §  1171. 

Legislation  §  592.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  1,55  (New  York  Code, 
§253),  which  read:  "An  issue  of  fact  shall  be 
tried  by  a  jury,  unless  a  jury  trial  is  waived,  or 
a  reference  be  ordered,  as  provided  in  this  act. 
Where  there  are  issues  both  of  law  and  fact  to 
the  same  complaint,  the  issues  of  law  shall  be 
first  disposed  of."  When  enacted  in  1872,  §  592 
substituted  (1)  the  word  "must"  for  "shall,"  (2) 
"code"  for  "act,"  and  (3)  omitted  the  words  "to 
the  same   complaint." 

2.   Amended   by  Code  Amdts.  1873-74,  p.  309. 

Eight  to  jury  trial  in  actions  at  law. 
It  is  always  for  the  judge,  sitting  as  a 
chancellor,  to  determine  whether,  when 
certain  rights  are  established,  he  will 
grant  an  equitable  remedy  prayed  for,  or 
compel  the  party  to  be  satisfied  with  his 
legal  remedy;  but  when  the  asserted 
rights,  upon  which  any  remedy  may  rest, 
are  legal  rights,  and  cognizable  in  a  court 
of  law,  such  rights  must  be  determined 
according  to  the  methods  of  the  common- 


§592 


ISSUES — MODE   OF   TRIAL,   AND   POSTPONEMENTS. 


640 


ant  in  possession,  yet  where  the  object  of 
the  action  is  to  recover  possession,  and  the 
defendant  denies  the  allegations  of  the 
complaint,  and  sets  up  title  by  adverse  pos- 
session, he  cannot  deprive  the  defendant 
of  a  jury  trial  of  the  issues  raised  by  the 
aiswer.  JSewman  v.  Duane,  89  Cal.  597; 
27  Pac.  66.  In  an  action  to  quiet  title, 
brought  by  a  party  out  of  possession 
against  one  claiming  title  and  in  posses- 
sion, either  party  is  entitled  to  a  jury  as 
a  matter  of  right.  Gillespie  v.  Gouly,  120 
Cal.  515;  52  Pac.  816.  Where  the  plaintiff 
has  been  ousted  from  possession,  and  the 
question  of  ownership  is  in  issue,  the  par- 
ties are  entitled  to  a  jury  trial  upon  that 
issue.  Eeiner  v.  Schroeder,  146  Cal.  411; 
80  Pac.  517;  and  see  Donahue  v.  Meister, 
88  Cal.  121;  22  Am.  St.  Rep.  283;  25  Pac. 
1096.  An  action  to  recover  damages  for 
past  trespasses  upon  land  being  an  action 
at  law,  in  which  the  parties  thereto  are 
entitled  to  a  trial  by  jury,  the  fact  that 
the  plaintiff  also  asks  for  an  injunction 
does  not  take  away  from  him  his  right 
to  have  the  real  issues  of  fact  tried  by  a 
jury.  Hughes  v.  Dunlap,  91  Cal.  385;  27 
Pac.  642. 

Eight  to  jury  trial,  and  discretion  of 
court,  in  equity  cases.  Causes  of  equitable 
cognizance  fall  solely  within  the  provisions 
of  the  last  clause  of  this  section  (Warring 
V.  Freear,  64  Cal.  54;  28  Pac.  115;  Learned 
V.  Castle,  67  Cal.  41;  7  Pac.  34;  Bell  v. 
Marsh,  80  Cal.  411;  22  Pac.  170;  and  see 
Eeiner  v.  Schroeder,  146  Cal.  411;  80  Pac. 
517) ;  and  in  such  causes  the  defendant 
is  not  entitled  to  a  jury  (Noble  v.  Learned, 
7  Cal.  Unrep.  297;  87  Pac.  402),  nor  is  it 
error  to  refuse  a  demand  for  a  jury  trial 
in  suits  in  equity  (Ashton  v.  Heggertv, 
130  Cal.  516;  62  Pac.  934);  hence,  it  is  not 
error  to  refuse  the  plaintiff  a  jury  trial 
in  a  proceeding  in  equity  to  reform  a 
contract.  Loftus  v.  Fischer,  113  Cal.  286; 
45  Pac.  328;  and  see  La  Societe  Frangaise 
V.  Selheimer,  57  Cal.  623;  Fish  v.  Benson, 
71  Cal.  428;  12  Pac.  454.  The  defendant 
in  an  action  to  foreclose  the  lien  of  an 
assessment  is  not  entitled  to  a  jury  trial: 
such  action  is  in  equity,  and  is  not  founded 
upon  any  contract  made  by,  or  personal 
liability  against,  the  defendant.  Santa 
Cruz  Rock  Pavement  Co.  v.  Bowie,  104 
Cal.  286;  37  Pac.  934;  Emery  v.  Bradford, 
29  Cal.  75;  Taylor  v.  Palmer,  31  Cal.  240; 
Cassidy  v.  Sullivan,  64  Cal.  266;  28  Pac. 
234.  Cases  of  fraud  are  subjects  of  both 
equitable  and  legal  jurisdiction,  and  the 
parties  are  entitled  to  a  jury  trial,  where 
the  facts  constituting  the  fraud,  as  well 
as  the  relief  sought,  are  cognizable  in  a 
court  of  law;  but  where,  on  the  case  made, 
relief  can  only  lie  had  in  a  court  of  equity, 
the  parties  are  not  entitled  to  a  jury  trial. 
I'ish  v.  Benson,  71  Cal.  428;  12  Pac.  454; 
La  Societe  Francaise  v.  Selheimer,  57  Cal. 
623;  .Jones  v.  Gardener,  57  Cal.  641;  Lorenz 
V.  Jacobs,  59  Cal.  262.     The  right  to  trial 


by  jury  in  an  action  to  abate  a  nuisance 
is  not  given  either  by  the  constitution  or 
by  statute;  the  prayer  for  damages  is  in- 
cidental to  the  relief  sought;  and  the  ac- 
tion being  properly  brought  in  a  court 
of  equity,  all  the  issues  in  the  case  will 
be  determined.  McCarthy  v.  Gaston  Ridge 
Mill  etc.  Co.,  144  Cal.  542;  78  Pac.  7; 
Huilson  V.  Doyle,  6  Cal.  101;  Courtwright 
v.  Bear  River  etc.  Mining  Co.,  30  Cal.  573; 
McLaughlin  v.  Del  Re,  64  Cal.  472;  2  Pac. 
244;  Sweetser  v.  Dobbins,  65  Cal.  529;  4 
Pac.  540.  The  issues  in  suits  in  equity 
should  be  tried  by  the  court,  unless  it 
sees  fit  to  order  any  or  all  of  them  to 
be  submitted  to  a  jury.  McLaughlin  v. 
Del  Re,  64  Cal.  472; '2  Pac.  244;  Churchill 
V.  Baumann,  104  Cal.  369;  36  Pac.  93;  38 
Pac.  43.  The  granting  or  refusing  of  a 
demand  for  a  jury  trial  in  suits  in  equity 
is  entirely  within  the  discretion  of  the 
court  (Curnow  v.  Happy  Valley  etc.  Hy- 
draulic Co.,  68  Cal.  262;  9  Pac.  149;  and 
see  La  Societe  Franc^aise  v.  Selheimer.  57 
Cal.  623);  and  whether  the  court  shall 
submit  special  issues  to  the  jury  is  also 
a  matter  within  its  own  discretion.  Schultz 
V.  McLean,  109  Cal.  437;  42  Pac.  557. 

Right  of  court  to  order  trial  by  jury. 
The  court  may  order  a  cause  to  be  tried 
by  a  jury,  without  assigning  any  reason 
therefor,  although  a  jury  is  waived  by 
both  parties.  Bullock  v.  Consumers'  Lum- 
ber Co.,  3  Cal.  Unrep.  609;  31  Pac.  367. 

Motion  for  new  trial.  In  order  to  re- 
view a  question  of  fact,  whether  the  case 
is  at  law  or  in  equity,  there  must  be  a 
motion  for  a  new  trial.  Thompson  v. 
White,  63  Cal.  505. 

Waiver  of  jury.  A  jury  can  be  waived 
only  in  one  of  the  modes  prescribed  in 
§  631,  post.  Swasey  v.  Adair,  SS  Cal.  179; 
25  Pac.  1119. 

Eight  of  court  to  order  reference.  An 
issue  of  fact,  in  an  action  at  law,  must 
be  tried  by  jury,  unless  a  jury  is  waived: 
it  cannot  be  referred,  except  upon  the 
written  consent  of  both  parties.  Seaman 
V.  Mariani,  1  Cal.  336.  Injury  is  not  pre- 
sumed in  consequence  of  a  trial  by  jury 
instead  of  by  the  court.  Doll  v.  Anderson, 
27  Cal.  248. 

Issue  of  law,  disposal  of.  A  defendant 
who  has  interposed  a  demurrer  to  the 
complaint  has  a  right  to  a  direct  decision 
of  the  issue  of  law  thereby  presented, 
v/hether  he  fails  to  urge  it  or  not.  Win- 
chester v.  Black,  134  Cal.  125;  66  Pac. 
197.  In  an  action  for  personal  injuries, 
the  jury  should  not  be  asked,  "What  was 
the  proximate  cause  of  the  accident  and 
injury  complained  of"':  that  question  in- 
volves a  question  of  law.  Petersen  v.  Cali- 
fornia Cotton  Mills  Co.,  20  Cal.  App.  751; 
130  Pac.  169. 

Trial  complete  when.  A  case  cannot  be 
considered  as  tried  until  a  decision  has 
been  made  and  filed,  unless  the  filing  of 
the  decision  has  been  waived.    Warring  v. 


641 


CONCLUSIVENESS  OF   VERDICT  AND  FINDINGS. 


§592 


Freear,  G4  Cal.  54;  28  Pac.   ll.j;   Hastings 
V.  Hastings,  ;{ 1  Cal.  9.1. 

Couclusiveness  of  verdict  and  findings  of 
jury.  Where,  iu  an  action  to  quiet  title 
to  i)roperty,  a  jury  was  inii)aiu-leii,  with- 
out objection,  to  try  the  leji;al  issues  raised 
by  the  answer,  a  stijiulation  by  the  par- 
ties, that  the  jury  nii^ht  render  a  general 
verdict  in  favor,  of  either  party,  is  legiti- 
mate, and  estops  the  unsuccessful  party 
from  repudiating  the  general  verdict, 
•which  is  conclusive  of  the  whole  case. 
Johnson  v.  Mina  Kica  Gold  Mining  Co., 
128  Cal.  621;  Gl  Pac.  76.  A  general  ver- 
dict of  the  jury  is  conclusive  on  the  court, 
save  only  the  power  to  set  it  aside  and 
grant  a  new  trial,  and  no  finding  of  the 
court  can  add  to  or  take  from  the  force 
of  the  verdict  upon  the  principal  issue  iu 
the  case.  Keiner  v.  Schroeder,  146  Cal. 
411;  80  Pac.  517.  Where  the  issues  arc 
submitted  to  a  jury  iu  a  suit  in  equity, 
their  verdict  is  merely  advisory.  Mc- 
Carthy V.  Gaston  Kiilge  Mill  etc.  Co.,  144 
Cal.  542;  78  Pac.  7;  Hudson  v.  Doyle,  6 
Cal.  101;  Courtwright  v.  Bear  River  etc. 
Mining  Co.,  30  Cal.  573;  McLaughlin  v. 
Del  Re,  64  Cal.  472;  2  Pac.  244;  Sweetser 
V.  Dobbings,  65  Cal.  529;  4  Pac.  540.  The 
adoption  of  a  verdict  is  equivalent  to  a 
finding  by  the  court  to  the  extent  to  which 
the  verdict  covers  the  issues  made  by  the 
pleadings,  and  it  is  the  duty  of  the  court 
to  find  upon  all  the  issues  not  covered  by 
the  verdict,  unless  they  are  waived.  War- 
ring V.  Freear,  64  Cal.  54;  28  Pac.  115; 
Bates  V.  Gage,  49  Cal.  126;  Wingate  v. 
Ferris,  50  Cal.  105.  The  general  verdict 
of  a  jury  in  a  suit  in  equity  should  be 
disregarded  if  insufiicient,  and  even  a  spe- 
cial verdict  is  merely  advisory,  and  may 
be  set  aside,  or  disregarded,  or  adopted. 
Warring  v.  Freear,  64  Cal.  54;  28  Pac.  115; 
Brandt  v.  Wheatou,  52  Cal.  430;  Stockman 
V.  Riverside  etc.  Irrigation  Co.,  64  Cal. 
57;  28  Pac.  116.  Where,  in  proceedings  to 
condemn  property  for  a  public  use,  the 
question  whether  the  taking  of  the  same 
is  necessary  for  such  use  is  submitted  to 
the  jury,  and  they  find  on  the  issue,  the 
court  has  no  power  to  disregard  the  finding 
and  make  findings  of  its  own.  Wilmington 
Canal  etc.  Co.  v.  Dominguez,  50  Cal.  505. 

Fraud  as  question  of  law  or  fact.  See  note  1 
Ann.  Cas.  446. 

Assumption  of  risk  arising  after  commence- 
ment of  employment  as  question  of  law  or  fact. 
See  note  '.^  Ann.  Cas.  814. 

Reasonableness  of  time  for  delivery  of  goods 
AS  question  of  law  or  fact.  Sie  note  '(j  Ann.  Cas. 
•24.5. 

Proof  of  foreign  law  as  properly  made  to  court 
or  jury.     See  note  7  Ann.  Cas.   74. 

Negligence  of  railroad  in  constructing  perma- 
nent structure  close  to  tracks  as  question  of  law 
or  fact.     See   note   7   Ann.   Cas.   ;!31. 

Original  or  collateral  nature  of  oral  promise 
•within  statute  of  frauds  as  question  of  law  or 
fact.     See   note   8   Ann.   Cas.   539. 

Province  of  court  or  jury  to  determine  whether 
■contract  is  contrary  to  public  policy.  See  note  11 
Ann.  Cas.    124. 

1  Fair. — 41 


EeasonablenesB  of  time  In  which  goods  are  re- 
turned under  contract  of  "sale  or  return"  as 
question  of  law  or  fact.  See  note  14  Aiiu.  Caa. 
3:u. 

CODE    COMJVIISSIONEES'    NOTE.      1.  Deflni- 

tiou  01  trial.  Mullurd  v.  Estudillo,  JJ  Cal.  IJl  . 
ilaslirit's  V.  llaBUujfa,  Jl  Cul.  'Jj,  cllud  lu  uuie 
tu  §  O'Jl,  nnte. 

2.  Matters  to  be  determined  by  the  Jury. 
Uediciilioa  of  u  btieet  is  a  conclusion  of  fact,  lo 
be  drawn  by  the  jury  from  the  circuuiHluiicua  of 
eacli  case;  the  wliole  qui-htion,  as  against  the 
owner  of  the  soil,  beiiiK,  wliellier  tlieiu  is  huui- 
cient  evidence  of  an  iuteutiou  ou  his  part  to 
dedicate  tiio  land  to  the  public  as  a  public  liijih- 
way.  Harding  v.  .Jasper,  14  Cal.  Ii48.  'llie  (ques- 
tion of  abaiidoiuneiit  of  a  luiniii);  claim  is  a 
question  for  tlie  jury.  WariiiK  v.  (.'row,  11  Cal. 
371.  As  is  thai  of  the  rcabonablene.ss  of  tlie 
use  of  water  to  be  determined  by  the  jury  upon 
the  facts  and  circumstances  of  each  particular 
case.  Ksuiond  v.  Chew,  Ij  Cal.  14'J.  So,  too, 
the  question  of  diligence.  Weaver  v.  Eureka 
Lake  Co.,  15  Cal.  274.  And  the  question  ol 
damages  in  an  action  of  trespass.  Drake  v. 
Palmer,  4  Cal.  11.  The  fact  wheilier  a  structure 
was  a  public  nuisance  is  a  question  for  the  jury. 
Cunter  v.  Geary,  1  Cal.  407.  The  (juestion  of 
malice,   in   an   action  for  malicious  prosecution,   is 

^for  the  jury.  Potter  v.  Scale,  8  Cal.  217.  Iu 
*aii  action  for  malicious  prosecution  of  a  suit  on 
a  bill  of  exchange  which  was  paid,  whether  the 
plaintifis  in  that  suit  knew  that  the  bill  was  iu 
fact  paid,  when  they  sued,  is  a  question  for  the 
jury.  Weaver  v.  Page,  6  Cal.  684.  The  existence 
of  a  custom  is  a  question  for  the  jury  to  decide. 
Panaud  v.  Jones,  1  Cal.  500.  The  question  of 
notice  of  dissolution  of  partnersliip  is  a  fact  for 
the  jury.  Rabe  v.  Wells,  3  Cal.  151;  Treadwell 
V.  Wells,  4  Cal.  260.  Where  an  action  was 
brought  for  the  balance  of  an  account,  and  the 
answer  set  up  .payment  by  a  promissory  note, 
and  the  plaintiff  replied  that  he  was  induced 
to  receive  the  note  by  fraud,  the  court  held  that 
it  was  one  of  the  cases  where  the  party  was  en- 
titled to  a  trial  by  jury,  and  th.it  it  could  not 
be  referred  but  by  consent  of  the  parties.  Sea- 
man V.  Mariani,  1  Cal.  336.  Where  the  bound- 
aries of  a  lot  of  land  are  uncertain,  the  location 
of  the  lot  is  a  question  for  the  jurv.  Revnolds 
V.  West,  1  Cal.  328:  Hicks  v.  Davis,  4  Cal.  69. 
What  is  actual  and  what  is  constructive  posses- 
sion, in  many  cases  is  a  question  of  fact  for  the 
jury.  O'Callaghan  v.  Booth,  G  Cal.  65.  So,  too, 
is  the  question  of  the  dedication  of  the  premises 
by  possession  as  a  homestead.  Cook  v.  Mc- 
Christian,    4   Cal.  26. 

3.  Matters  to  be  determined  by  the  court.  A 
court  does  not  require  the  verdict  of  a  jury  to 
inform  it  of  facts  occurring  in  the  presence  of 
the  court.  People  v.  .ludge  of  Tenth  Judicial 
District,  9  Cal.  21.  A  party  cannot  try  his  case 
before  a  judge,  without  objection,  and.  after  he 
has  lost  it,  object  that  the  case  was  not  tried  by 
a  jury.  Smith  v.  Brannan.  13  Cal.  115.  If  there 
is  no  dispute  as  to  the  facts,  and  the  law  upon 
those  facts  declares  a  tr;insaction  fraudulent, 
there  is  no  question  for  the  jury.  Chenerv  v. 
Palmer,  6  Cal.  122;  65  Am.  Dec.  493.  What 
facts  and  circumstances  constitute  evidence  of 
carelessness,  is  a  question  of  law  for  the  court 
to  determine.  But  what  weisrht  the  jury  should 
give  to  these  facts  and  circumstances  is  for  the 
jurv.  Gerke  v.  California  Steam  Nav.  Co.,  9 
Cal".  258:  70  Am.  Dec.  650.  After  judgment  by 
default  in  ejectment,  a  jury  trial  cannot  be 
awarded.  Smith  v.  Billett,  15  Cal.  26.  W'hether 
a  judgment  entered  in  the  court  below  is  entered 
in  accordance  with  the  mandate  of  the  apoellate 
cDurt.  is  a  question  of  law,  and  not  of  fact 
Leese   v.  Clark.   28   Cal.   33. 

4.  Juries,  in  equity  cases.  The  language  of 
the  constitution  as  to  trial  by  jury  was  used 
with  reference  to  the  right  as  it  exists  at  common 
law.  The  right  cannot  be  claimed  in  equity 
eases,  unless  an  issue  of  fact  be  framed  for  the 
iurv,  under  the  direction  of  the  court.  Kopnikus 
v.  State  Capitol  Comm'rs  ,  16  Cal.  243;  Smith  v. 
Rowe,  4  Cal.  7:  W^alker  v.  Sedgwick,  5  Cal.  192: 
Cahoon  v.  Levy,  5  Cal.  294.  A  court  of  equity 
may    direct,    whenever,    in    its    judgment,    it    may 


§§  593,  594 


ISSUES — MODE  OF   TRIAL,   AND   POSTPONEMENTS. 


642 


become  proper,  an  issue  to  be  framed  upon  the 
pleadings,  and  submitted  to  the  jury.  Curtis  v. 
Sutter,  15  Cal.  263;  Weber  v.  Marshall,  19  Cal. 
447.  In  equity  cases,  the  court  below  may  dis- 
regard the  verdict  of  a  jury.  Goode  v.  Smith,  13 
Cal.  84.  Though  special  issues,  framed  by  the 
court  according  to  equity  practice,  may  be  tried 
by  a  jury  in  equity  cases,  but  if  the  failure  to 
present  the  issues  is  the  result  of  plaintiff's  own 
motion,  he  cannot  be  allowed  to  take  advantage 
of  it.    Brewster  v.  Bours,   8   Cal.   505. 

5.  Jury,  mandamus  cases.  In  an  application 
for  mandamus  to  compel  a  judge  to  sign  a  bill  of 
exceptions,    which    the    petitioner    alleges    he    re- 


fuses to  do,  where  the  judge  in  his  answer  avers 
that  he  has  signed  a  true  bill  of  exceptions,  and 
that  the  one  presented  by  the  relator  is  not  a 
true  bill,  it  was  held  that  the  petitioner  was  not 
entitled  to  a  jury  to  try  the  issue.  People  v. 
Judge   of  Tenth   Judicial   District,    9    Cal.   21. 

6.  Generally.  Where  issues  of  law  and  fact 
are  both  raised,  the  issue  of  law  should  first  be 
disposed  of.  Brooks  v.  Douglass,  32  Cal.  208. 
If  the  ansM-er  contains  a  legal  and  an  equitable 
defense,  the  court  may  first  try  the  equitable  de- 
fense, and  refuse  the  plaintiff  a  jur.v  trial,  and, 
if  the  facts  warrant  it,  grant  the  equitable  re- 
lief prayed  for.    Bodley  v.  Ferguson,  30  Cal.  511. 


Post,  §  1085 

Issue,  generally.    Ante,  §  588. 

Abolition  of  terms.    See  Const.,  art.  "VI,  |  5. 

Legislation  §  593.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  156  (New  York  Code, 
§  256),  which  read:  "The  clerk  shall  enter  causes 
upon  the  calendar  of  the  court,  according  to  the 
date  of  the  issue.  Causes  once  placed  on  the 
calendar  for  a  general  or  special  term,  if  not 
tried  or  heard  at  such  term,  shall  remain  upon 
the  calendar  from  court  to  court,  until  finally 
disposed  of."  When  enacted  in  1872,  §593  (1) 
substituted  the  word  "must"  for  "shall,"  in  both 
instances,   and    (2)    omitted   "the"  before   "issue." 

2.   Amended  by  Code  Amdts.  1880,  p.  5. 

Change   of   date   of   cause   on  calendar. 

The   iDosition   of   a   cause   on   the   calendar 
will  not  be  changed  to  a  different  day  from 


§  593.  Clerk  must  enter  causes  on  the  calendar,  to  remain  until  disposed 
of.  When  may  be  restored.  The  clerk  must  enter  causes  upon  the  calen- 
dar of  the  court  according  to  the  date  of  issue.  Causes  once  placed  on  the 
calendar  must  remain  upon  the  calendar  until  finally  disposed  of;  pro- 
vided, that  causes  may  be  dropped  from  the  calendar  by  consent  of  par- 
ties, and  may  be  again  restored  upon  notice. 

Mandamus   to    compel   clerk   to   perform   duty.        that     on     which    it    is     set    by   the     clerk, 

whether  upon  the  stipulation  of  the  par- 
ties or  on  motion  of  either  party,  except 
upon  good  cause  shown.  Wetmore  v.  San 
Francisco,  43  Cal.  37.  An  order  dismissing 
a  demurrer  must  be  regarded  as  equivalent 
to  an  order  overruling  it.  Winchester  v. 
Black,  134  Cal.  125;  66  Pac.  197;  and  see 
Voll  V.  Hollis,  60  Cal.  569;  Davis  v.  Hur- 
gren.  125  Cal.  48;  57  Pac.  684. 

Knowledge  of  rules  of  court.  The  par- 
ties to  an  action  are  bound  to  know  the 
rules  of  the  trial  court  relating  to  the 
calling  of  the  calendar  and  the  setting 
of  causes  for  trial.  Dusy  v.  Prudom,  95 
Cal.  646;  30  Pac.  798. 

§  594.  Parties  may  bring  issue  to  trial.  Either  party  may  bring  an 
issue  to  trial  or  to  a  hearing,  and.  in  the  absence  of  the  adverse  party,  un- 
less the  court,  for  good  cause,  otherwise  direct,  may  proceed  with  his  case, 
and  take  a  dismissal  of  the  action,  or  a  verdict  or  judgment,  as  the  case 
may  require;  provided,  however,  if  the  issue  to  be  tried  is  an  issue  of  fact, 
proof  must  first  be  made  to  the  satisfaction  of  the  court  that  the  adverse 
party  has  had  five  days'  notice  of  such  trial. 

159  Cal.  778;  116  Pac.  44.  A  court  should 
not  dismiss  an  action,  under  the  third  sub- 
division of  §  581,  ante,  except  upon  proof 
made  in  compliance  with  §  594.  Estate  of 
Dean,  149  Cal.  487;  87  Pac.  13. 

Notice  of  trial,  necessity  for  and  sufl- 
ciency  of.  This  section  was  designed  to 
prevent  the  manifest  injustice  of  dismiss- 
ing a  party's  action,  or  trying  it  in  his 
absence,  because  of  his  failure  to  appear 
at  a  time  at  which  he  could  not  be  held 
to  have  had  notice  that  the  trial  would  be 
had,  or  that  any  proceeding  would  be 
taken  against  him.  Estate  of  Dean,  149 
Cal.  487;  87  Pac.  13.  It  is  error  to  dis- 
miss an  action  as  to  interveners,  where 
issues  of  fact  are  tendered  by  their  com- 
plaint, without  the  five  days'  notice  pre- 
scribed by  this  section,  or  a  waiver  thereof. 
Townsend  v.  Driver,  5  Cal.  App.  581;  90 
Pac.  1071.  The  jurisdiction  of  the  court 
is  not  affected  by  a  failure  to  comply  with 


Dismissal.     Ante,  §  581. 
Surprise. 

1.  Setting   aside  judgment  for.    Ante,  §  473. 

2.  New  trial.    Post,  §  657. 

Legislation  8  594.  1.  Enacted  March  11,  1873; 
based  on  Practice  .Act,  §  157,  which  had  the  word 
"an"  instead  of  "the,"  before  "issue,"  in  first 
line. 

2.  Amended  by  Stats.  1899,  p.  5,  adding  the 
proviso. 

Construction  of  sections.  This  section 
does  not  require  that  a  party  intending 
to  apply  to  the  court  to  have  a  day  fixed 
for  the  trial  shall  give  notice  of  his  in- 
tended application  to  the  adverse  party:  it 
requires  merely  that  five  days'  notice  of 
the  time  set  for  the  trial  shall  be  given. 
McNeill  &  Co.  v.  Doe,  163  Cal.  338;  125 
Pac.  345.  The  provision  respecting  five 
days'  notice  has  reference  only  to  proceed- 
ings taken  against  a  party  in  his  absence: 
it  has  no  application  to  cases  in  which 
both  parties  are  rei)resented  when  the  case 
is  called  for  trial.    Sheldon  v.  Landwehr, 


643 


TITLE    TO    MINING    CLAIM — MOTION    TO    POSTPONE    TRIAL. 


§  r/J5 


a  rule  of  the  court  requiring  fivo  days' 
notice  of  trial.  Petition  of  Los  Anjides 
Trust  Co.,  L^S  Cal.  (JU3;  112  Pac  .j(i.  The 
parties  to  an  action,  ami  their  attorneys, 
•whether  residents  or  nonresidents  of  the 
county  where  the  case  is  pending,  must 
watch  its  progress,  and  are  charged  with 
notice  of  the  fact  that  it  is  set  for  trial. 
Dusy  V.  Prudoni,  9o  Cal.  646;  30  Pac.  798; 
Bell  V.  Peck,  104  Cal.  35;  37  Pac.  766; 
Eltzroth  V.  Ryan,  91  Cal.  5.S4;  27  Pac.  932. 
Where  the  judgment  recites  that  the  de- 
fendant had  been  notified  of  the  flay  set 
for  trial,  more  than  five  days  prior  thereto, 
a  compliance  with  the  provisions  of  this 
section  is  shown.  Johnston  v.  Callahan, 
146  Cal.  212;  79  Pac  870.  A  recital  in  the 
judgment,  that,  on  the  hearing  of  a  mo- 
tion, both  parties  agreed  in  open  court 
that  the  case  slioubl  be  jieremptorily  set 
for  trial  upon  the  decision  of  the  motion, 
and  the  case  was  so  set,  is  projier,  where 
the  defendant  did  not  ap])ear,  and  the 
finding  is  conclusive  as  against  counsel's 
statement  conflicting  therewith,  as  to  the 
insufficiency  of  the  notice  of  trial.  Rodley 
V.  Lyons.  129  Cal.  «S1  ;  62  Pac.  313. 

Dismissal  or  judgment  in  absence  of 
adverse  party.  Where  the  plaintiff  fails 
to  appear  at  the  trial,  the  defendant  may 
proceed  with  the  case  and  have  final  judg- 
ment entered.  Clune  v.  Quitzow,  12.5  Cal. 
213;  57  Pac.  SS6.  A  dismissal  on  account 
of  the  absence  of  the  plaintiff,  involving 
the  absolute  destruction  of  his  rights, 
should  be  seriously  considered  by  the 
court:  so  serious  a  penalty  should  not  be 
imposed,  unless  the  due  administration  'of 
justice  clearly  requires  it.  Jaffe  v.  Lilien- 
thal,  101  Cal."^175;  35  Pac.  636. 

Absence  at  trial  as  waiver  of  jury. 
Where  the  defendant   sends  a  telegram  to 


the  judge,  demamling  a  trial  by  jury,  on 
the  day  [•receding  the  trial,  but  fails  to 
ajipear  in  person  or  hy  counsel  at  the 
trial,  the  court  may  dispense  with  the  .jury. 
McCuiirc  V.  Drew,  s.',  Cat.  22:!;  23  Pac.  3i2. 

Waiver  of  notice  of  trial.  A  guardian 
ad  litem  has  power  to  wai\e  the  five  days' 
notice  of  the  setting  of  a  case  for  trial 
required  by  this  section;  and  such  waiver 
is  had,  if  the  guardian,  on  the  day  set 
for  trial,  a{)pears  in  court  and  oltjects  to 
the  proceeding,  and  the  court  thereupon, 
without  further  objection  from  him,  con- 
tinues the  trial  for  three  days.  Granger  v. 
Sheriff,  13;!  ('al.  416;  65  Pac.  873. 

Presumption  arising  from  notice  of  triaL 
A  party  who,  having  actual  notice  of  the 
day  of  trial,  and  knowing  also  that  no 
further  postponement  would  be  agreed  to, 
fails  to  appear  either  in  person  or  by  at- 
torney, must  be  presumed  to  know  that 
such  failure  would  result  in  a  trial  in  his 
absence.  McGuire  v.  Drew,  83  Cal.  225;  23 
Pac.  312. 

Relief  for  party  absent  from  trial.  To 
entitle  a  party  to  relief  on  the  ground  of 
surprise,  where  the  trial  is  had  in  his 
absence,  he  must  show  that  he  was  in- 
jured, and  that  a  different  result  would  be 
reached  if  a  new  trial  were  had.  Mct<uire 
V.  Drew,  83  Cal.  225;  23  Pac.  312;  Patter- 
son v.  Ely,  19  Cal.  28;  Cook  v.  De  la 
Guerra,  24  Cal.  237;  Brooks  v.  Douglass, 
32  Cal.  208. 

Appeal.  A  rule  of  the  trial  court,  re- 
quiring reasonable  notice  to  the  adverse 
party  of  the  time  fixed  for  trial,  cannot 
be  considered  on  appeal,  where  it  is  no 
part  of  the  record.  .Johnston  v.  Callahan, 
146  Cal.  212;  79  Pac.  870. 

CODE    COMMISSIONERS'    NOTE.      See    §  5SI 

of  this  code. 


§  595.  Motion  to  postpone  a  trial  involving  title  to  mining  claim.  A 
motion  to  postpone  a  trial  on  the  ground  of  the  absence  of  evidence  can 
only  be  made  upon  affidavit  showing  the  materiality  of  the  evidence  ex- 
pected to  be  obtained,  and  that  due  diligence  has  been  used  to  procure  it. 
A  trial  shall  be  postponed  when  it  appears  to  the  court  that  the  attorney 
of  record,  party,  or  principal  witness  is  actually  engaged  in  attendance 
upon  a  session  of  the  legislature  of  this  state  as  a  member  thereof.  The 
court  may  require  the  moving  part}',  where  application  is  made  on  ac- 
count of  the  absence  of  a  material  witness,  to  state  upon  affidavit  the  evi- 
dence which  he  expects  to  obtain;  and  if  the  adverse  party  thereupon 
admits  that  such  evidence  would  be  given,  and  that  it  be  considered  as 
actually  given  on  the  trial,  or  offered  and  overruled  as  improper,  the  trial 
must  not  be  postponed.  In  actions  involving  the  title  to  mining  claims, 
or  involving  trespass  for  damage  upon  mining  claims,  if  it  be  made  to  ap- 
pear to  the  satisfaction  of  the  court  that,  in  order  that  justice  may  be 
done  and  the  action  fairly  tried  on  its  merits,  it  is  necessary  that  further 
developments  should  be  made,  underground  or  upon  the  surface  of  the 
mining  claims  involved  in  said  action,  the  court  shall  grant  the  postpone- 


§595 


ISSUES — MODE   OF   TRIAL,   AND   POSTPONEMENTS. 


644 


ment  of  the  trial  of  the  action,  giving  the  party  a  reasonable  time  in  which 
to  prepare  for  trial  and  to  do  said  development-work. 

have  his  deposition  taken,  is  sufficient  to 
entitle  him  to  a  continuance,  where  there 
is  nothing  to  contradict  the  showing,  or  to 
raise  a  suspicion  as  to  the  good  faith  of 
the  application.  Morehouse  v.  Morehouse, 
136  Cal.  332;  68  Pac.  976;  .Jaffe  v.  Lilien- 
thal,  101  Cal.  175;  35  Pac.  636.  The  un- 
avoidable absence  of  a  party  does  not 
necessarily  compel  the  court  to  grant  a 
continuance.  Sheldon  v.  Landwehr,  159 
Cal.  778;  116  Pac.  44.  It  is  not  an  abuse 
of  discretion  to  refuse  a  continuance  be- 
cause of  the  absence  of  the  plaintiff,  if 
nothing  indicates  that  he  would  be  able 
to  appear  at  any  later  time,  and  no  ex- 
cuse is  shown  for  the  failure  to  take  his 
deposition  in  proper  form  before  the  trial. 
Beckman  v.  Waters,  161  Cal.  581;  119  Pac. 
922. 

Costs  as  condition  of  continuance.  The 
court  has  a  right  to  impose  costs,  other 
than  those  properly  taxable,  as  a  condi- 
tion for  postponing  a  trial  (Pomeroy  v. 
Bell,  118  Cal.  635;  50  Pac.  683);  and  a 
party  cannot,  after  agreeing  that  the  pay- 
ment of  certain  items  of  costs  be  made 
a  condition  to  a  continuance,  be  heard  to 
say  that  the  court  had  no  power  or  dis- 
cretion to  impose  any  particular  item  of 
costs.  Bashore  v.  Superior  Court,  152  Cal. 
1;  91  Pac.  801. 

Good  faith  in  applying  for  continuance. 
The  good  faith  of  the  application  for  a 
continuance  is  a  question  that  may  be 
considered  in  granting  a  continuance. 
Sheldon  v.  Landwehr,  159  Cal.  778;  116 
Pac.  44. 

Discretion  of  court  as  to  continuances. 
Continuances  should  not  be  granted  with- 
out good  cause,  and  the  granting  or  refus- 
ing thereof  is  usually  a  matter  largely 
within  the  discretion  of  the  trial  court. 
Marcucci  v.  Vowinckel,  164  Cal.  693;  130 
Pac.  430;  Sheldon  v.  Landwehr,  159  Cal. 
778;  116  Pac.  44.  Granting  or  refusing  a 
continuance  on  the  ground  of  the  absence 
of  counsel,  is  a  matter  resting  largely,  if 
not  wholly,  in  the  discretion  of  the  court 
(Kern  Valley  Bank  v.  Chester,  55  Cal. 
49) ;  and  the  same  rule  applies  as  to  the 
absence  of  associate  counsel.  Peachy  v. 
Witter,  131  Cal.  316;  63  Pac.  468. 

Power  to  continue.  The  jurisdiction  to 
hear  and  determine  a  cause  or  proceeding 
involves  the  power  to  postpone  the  hear- 
ing for  good  cause,  unless  prohibited  by 
statute.  Curtis  v.  Underwood,  101  Cal.  661; 
36  Pac.  110. 

Refusal  to  continue  proper  when.  The 
refusal  of  a  continuance  is  proper,  where 
the  application  was  made  on  the  day  set 
for  trial,  and  the  affidavit  showed  that 
the  address  of  the  absent  witness  was 
unknown,  and  the  cause  had  been  set  for 
more  than  two  months  previously,  and  the 


Costs  on  continuance.    Post,  §  1029. 
Extension    of     time    during    attendance    upon 
legislature.    See  post,  §  1054. 

Legislation  §  595.  1.  Enacted  March  11,  1873 
(substantiallv  a  re-enactment  of  Practice  Act, 
§  158),  and  then  consisted  of  the  first  and  third 
sentences  of  the  present  text. 

2.  Amended  by  Code  Amdts.  1880,  p.  1,  (1) 
adding  the  second  sentence;  (2)  in  the  third 
sentence  (the  second  of  the  original  code  sec- 
tion), (a)  striking  out  "also,"  after  "The  court 
may,"  (b)  adding  "where  application  is  made 
on  account  of  the  absence  of  a  material  witness," 
(c.)   substituting  "admits"  for  "admit." 

3.  Amended  by  Stats.  1911,  p.  1448,  adding 
the  last  sentence. 

Construction  of  section.  The  intention 
of  the  code,  while  protecting  the  court 
from  imposition  and  unnecessary  delays, 
is  to  secure  a  reasonable  opportunity  to 
litigants  to  try  their  cases  on  the  merits, 
to  the  end  that  justice  may  be  done;  and 
while  no  definite  rule  can  be  laid  down, 
embracing  all  the  different  circumstances 
under  which  continuances  should  be 
granted,  yet  the  spirit  and  intention  of 
the  code  should  always  be  borne  in  mind. 
Light  V.  Richardson,  3  Cal.  Unrep.  745;  31 
Pac.  1123. 

Due  diligence  must  be  shown  by  affi- 
davit. A  continuance  can  be  granted  on 
the  ground  of  the  absence  of  evidence, 
only  upon  an  affidavit  showing  the  mate- 
riality of  the  evidence  expected  to  be 
obtained,  and  that  due  diligence  had  been 
used  to  obtain  it.  Storch  v.  McCain,  85 
Cal.  304;  24  Pac.  639;  Kern  Valley  Bank 
V.  Chester,  55  Cal.  49.  An  affidavit,  on 
motion  for  a  continuance,  failing  to  show 
any  diligence,  and  not  disclosing  any  de- 
fense on  the  merits,  is  insufficient.  Harloe 
V.  Lambie,  132  Cal.  133;  64  Pac.  88. 

Absence  of  witness.  The  affidavit,  upon 
a  motion  for  a  continuance  on  the  ground 
of  the  absence  of  a  witness,  must  show 
what  is  expected  to  be  proved  by  such 
witness  (Kern  Valley  Bank  v.  Chester,  55 
Cal.  49);  but  this  requirement  is  not  im- 
perative, and  should  not  be  demanded  of 
counsel,  when  he  cannot  have  the  aid  of 
his  client,  whose  absence  is  excusable. 
Light  V.  Paehardson,  3  Cal.  Unrep.  745; 
31  Pac.  1123.  It  is  not  error  to  refuse 
a  continuance  because  a  regularly  sub- 
posnaed  witness  does  not  respond,  and  may 
have  left  the  state,  particularly  where  his 
evidence  appears  to  be  merely  cumulative. 
Hawlev  v.  Los  Angeles  Creamery  Co.,  16 
Cal.  A^pp.  50;  116  Pac.  84.  The  circum- 
stance that  the  witness  who  is  unable  to 
attend  is  at  the  same  time  one  of  the 
parties,  strengthens  the  showing  in  favor 
of  a  continuance,  but  does  not  necessarily 
compel  the  court  to  grant  it.  Sheldon  v. 
Landwehr,  159  Cal.  778;  116  Pac.  44. 

Absence  of  party.  A  showing  of  the 
illness  of  the  defendant,  of  such  a  nature 
that  he  could  neither  attend  the  trial  nor 


645 


ABSENCE — WITNESS,    COUNSEL,    PARTY — SUKPRLSE,    ETC. 


§595 


defendant  had  not  made  any  effort  to 
secure  the  testimony  of  such  witness. 
Tomi)lvins  v.  Montgomery,  121}  C'al.  219;  So 
I'ac.  997.  It  is  not  error  to  refuse  a  con- 
tinuance, where  the  oj)iiosing  party  makes 
the  admission  contemjilated  by  this  sec- 
tion, and  the  affidavit  containing  all  that 
was  proijosed  to  be  proved  by  the  absent 
witness  was  admitted  in  evidence  at  the 
trial.  Loftus  v.  Fischer,  11  ;i  Cal.  286;  45 
Pac.  328.  The  court  is  justified  in  refus- 
ing a  continuance  to  allow  the  liling  of  an 
amended  complaint,  where  the  case  had 
already  been  tried  twice,  and  the  court 
was  not  informed  of  the  nature  of  the 
proposed  amendment,  or  that  the  plain- 
tiff was  unable  to  establish,  under  the 
pleadings  on  file,  the  averments  that  he 
might  include  in  such  amended  complaint 
(tSchultz  V.  McLean,  109  Cal.  437;  42  Pac. 
557);  and  a  continuance,  asketl  on  the 
ground  that  necessary  parties  to  a  cross- 
complaint  were  not  served  with  process, 
is  properly  refused,  where  they  were  par- 
ties to  the  action  and  had  been  served  with 
summons.  Rodgers  v.  Parker,  13(5  Cal.  313; 
68  Pac.  975. 

Discretionary  nature  of  power  to  grant  con- 
tinuance.   Slc  note   74  Am.  Dec.   141. 

Absence  of  counsel  as  ground  for  continuance. 
See  note  Ann.   Cas.   1913C,  431. 

Injunction  against  judgment  for  refusal  of  con- 
tinuance.   See  nule  au  L.  11.  A.   TuD. 

Presence  of  witnesses  at  trial  as  curing  error 
in  denying  motiou  for  continuance  on  ground  of 
absent  witnesses.  See  note  2  L.  K.  A.  (N.  S.) 
721. 

Admissibility  or  subsequent  trial  of  admission 
made  to  defeat  continuance.  See  note  "25  L.  K.  A. 
(N.  8.)    KiiJ. 

Continuance  because  of  illness  of  party.  See 
note  41i  L.  Ji.  A.    (^.  S.)    C6U. 

CODE  COIMMISSIONERS'  NOTE.      1.  Absence 

of  witnesses.  Tlie  aliidavit  of  a  party  moving 
for  a  continuance  on  ihe  ground  of  the  absence 
of  a  witness,  must  show  tliat  the  facts  expected 
to  be  proven  by  such  witness  are  material. 
People  V.  Mellon,  40  Cal.  048;  Hawley  v.  Stir- 
ling, 2  Cal.  4  70;  Berry  v.  Metzler,  7  "Cal.  418. 
An  affidavit  which  merely  shows  that  the  desired 
witness  resides  in  another  county  from  that  of 
the  place  of  trial,  and  that  a  subptena  has  been 
placed  in  the  hands  of  the  sheriff  of  the  county 
where  the  witness  resides,  and  has  been  returned 
not  served,  does  not  show  siUiicient  diligence  to 
entitle  the  defendant  to  a  continuance.  People  v. 
Williams,  24  Cal.  31.  Affidavits  must  show  due 
diligence  in  endeavoring  to  procure  the  attend- 
ance of  witnesses  and  in  preparing  the  trial. 
People  V.  Haker,  1  Cal.  404.  'I'ne  party  must 
have  resorted  to  the  proper  legal  means  for  th;it 
purpose,  or  must  satisfy  the  court  that  a  resr.it 
to  such  means  would  have  been  useless.  Kuh- 
land  V.  Sedgwick,  17  Cal.  123.  Where  the  an- 
swer of  defendant  was  filed  May  10th,  and  the 
application  for  a  continuance,  to  take  testimony 
in  Xew  York,  was  filed  June  14th  of  the  same 
year,  during  which  interval  no  attempt  was  made 
to  sue  out  a  commission  for  the  purpose,  it  was 
held  that  this  is  not  sufficient  diligence  to  en- 
title the  party  to  a  continuance.  Pierson  v.  IIol- 
brook,  2  Cal.  598.  Affidavits  for  a  continuance, 
based  upon  the  ground  of  absence  of  witnesses, 
must  state  that  the  facts  expected  to  be  proved 
by  absent  witnesses  cannot  otherwise  be  proved. 
People  v.  Quincv,  8  Cal.  89;  Pierce  v.  Pavne.  14 
Cal.  419;  People  v.  Gaunt,  23  Cal.  15C.  "Xor  is 
it  sufficient  to  state  that  the  party  has  no  other 
witnesses  bv  whom  he  expects  to  prove  the  same 
facts.  Pope"  V.  Dalton.  31  Cal.  218.  Affidavits 
for  a  continuance  on  the  ground  of  absent  wit- 
nesses   should    state    that    the    testimony    wanted 


ia  not  sirapiv  rumulative,  and  cannot  be  proven 
by  others,  and  also  that  the  appliciiiion  Ik  not 
made  for  delay;  the  character  of  the  diligence 
used  in  trviiie  to  obtain  tlie  attendance  of  the 
witness,  wliether  by  exhauxling  the  process  of 
the  law  or  otherwise,  khould  also  be  stated. 
People  V.  Thompson,  4  Cal.  24  0;  People  v.  Quincy, 
8   Cal.   89;    Pierce  v.   Payne,   14   Cal.   420. 

2.  Absence  of  counsel.  An  action  was  com- 
menced .Siptenib.r  9,  1807,  and  the  deininreri 
were  lib  d  .Scpteniber  19lh.  On  the  13th  of 
XovembiT  following,  the  cause  was  placed  on  the 
calendar,  and  set  tor  trial  on  the  demiiirem  for 
the  14lh.  On  the  i4th,  defendants  u.sUi  d  for  • 
continuance,  on  utliduvits  setting  "Ul  substantially 
that  they  had  employed  attorneys  residing  in  a 
county  distant  from  Kern  County,  who  had  pre- 
pared and  tiled  di  murrers,  and  had  informed 
them  that  the  cause  would  not  be  tried  until  the 
term  of  said  court  for  December,  1807,  and  that 
the  attorneys  would  then  be  in  attendance;  that 
the  term  then  being  held  was  an  adjourned  term 
of  the  June  term,  18(>7,  and  that  they  could  not 
procure  attendance  of  their  attorneys,  and  were 
taken  by  surprise;  that  one  Bridger  was  a  ma- 
terial witness  for  defendant  Menzel,  and  lived 
in  Los  Angeles,  and  Men/.el  had  seen  him  several 
weeks  before,  when  he  promised  to  be  in  attend- 
ance, but  that  he  had  not  come,  and  that  by  rea- 
son of  the  promise,  and  what  the  attorney  told 
them,  they  had  taken  no  steps  to  secure  the  wit- 
ness's deposition.  The  court  denied  the  motion 
for  a  continuance,  and  on  the  15th  of  November 
overruled  the  demurrers.  On  the  18th,  the  de- 
fendants answered,  and  the  cause  was  set  for 
trial  on  the  19th.  On  appeal,  it  was  held,  that 
it  was  not  error,  under  the  circumstances,  to 
(>ny  the  continuance  or  overrule  the  demurrers. 
Lightner  v.  Menzel,  35  Cal.  459.  Where  a  case, 
set  for  trial  on  a  particular  day.  with  the  knowl- 
edge and  consent  of  defendant's  attorney,  and 
he  then,  two  or  three  days  before  the  day  of 
trial,  goes  to  another  county  to  try  another  cause 
there,  a  continuance  was  denied.  Haight  v. 
Green,  19  Cal.  113. 

3.  Absence  of  a  party.  A  case  was  called  for 
trial  in  its  regular  place  on  the  calendar;  counsel 
for  defendant  moved  to  postpone  the  trial  for 
three  days,  on  account  of  the  temporary  absence 
of  the  defendant.  The  motion  was  based  upon 
an  affidavit  of  the  business  associate  of  the  de- 
fendant, to  the  effect  that  the  defendant  had 
gone  to  the  state  of  Nevada  a  few  days  previous 
to  the  motion,  on  important  private  business,  and 
that  affiant  knew  nothing  about  the  facts  of  the 
case,  but  believed  that  it  would  be  impossible 
to  try  it  without  the  defendant's  presence,  as  the 
facts  were  altogether  within  his  knowledge,  and 
that  he  did  not  know  when  defendant  would  re- 
turn, but  he  expected  him  to  do  so  within  a  few 
days.  The  court  denied  the  motion,  and  upon 
appeal  it  was  held  that  the  denial  did  not  amount 
to  an  abuse  of  discretion.  Wilkinson  v.  Parrott. 
32  Cal.  102. 

4.  Newly  discovered  evidence.  Material  testi- 
mony, discovered  at  too  late  a  period  to  produce 
the  same  at  the  trial,  is  good  ground  for  a  con- 
tinuance.   Berry  v.  Metzler,   7  Cal.  418. 

5.  Surprise.  If  defendants  are  surprised  by 
an  amendment,  and  find  it  necessary  to  assume  a 
different  line  of  defense  in  conse(|uence  of  it,  they 
are  entitled  to  a  continuance  to  prepare  for  their 
defense.  Polk  v.  Coffin,  9  Cal.  58.  A  refusal  to 
grant  a  continuance  for  the  absence  of  witnesses 
or  counsel,  under  circumstances  showing  that  the 
party  or  his  counsel  was  surprised  as  to  the 
time  or  place  of  holding  court,  is  erroneous. 
Ross  V.  Austin,  2  Cal.  183.  If  a  party  is  taken 
by  surprise  by  an  extension  of  time  to  take  tes- 
timony before  a  referee,  and  by  the  testimony 
thereby  introduced,  he  is  for  that  reason  entitled 
to  a  continuance.     People  v.   Ilolden,   28   Cal.   129. 

6.  Discretion  of  the  court.  Granting  or  refus- 
ing a  continuance  rests  vimv  7nuch  in  the  sound 
discretion  of  the  court.  Musgrove  v.  Perkins.  9 
Cal.  2  11.  And  even  when  the  facts  show  that 
the  action  of  the  court  below  approached  au 
arbitrary  exercise  of  its  discretion,  that  action 
will  not  be  reviewed,  unless  there  has  been  a 
motion  for  a  new  trial,  and  the  application  sup- 
ported by  the  affidavits  of  the  absent  witness,  if 
such  affidavits  can  be  obtained:  or  if  not.  then 
it  should  be  shown  to  the  court  that  they  cunuot 


§§  596,  600 


FORMATION    OF    JURY. 


646 


testify  to  certain  facts  set  up  in  the  affidavit, 
and  the  trial  proceeds,  the  affidavit  becomes  evi- 
dence, but  not  conclusive  proof  of  its  contents. 
Blankman  v.  Vallejo,  15  Cal.  645;  Boggs  v. 
Merced  Mining  Co.,   14  Cal.   358. 

8.  Generally.  Courts  are  liberal  in  granting 
postponements;  and  if  a  party,  who  is  unpre- 
pared for  trial  at  the  time  of  the  calling  of  his 
case,  fails  to  move  for  a  continuance,  he  waives 
his  want  of  preparation,  and  cannot  afterwards, 
when  judgment  has  gone  against  him,  move  for 
a  new  trial  on  this  ground.  Turner  v.  Morrison, 
11  Cal.  21.  The  mistaken  advice  of  an  attorney 
to  his  client,  not  to  prepare  for  trial,  is  not 
ground  for  a  continuance.  Musgrove  v.  Perkins,  9 
Cal.  211.  An  agrtement  for  a  postponement, 
made  by  counsel,  but  not  reduced  to  writing,  will 
not  be  regarded  by  the  court.  Peralta  v.  Mariea, 
3  Cal.  187. 


be  obtained.  Unless  this  be  done,  the  appellate 
court  will  not  interfere,  in  civil  cases,  with  the  ac- 
tion of  the  lower  court.  Pilot  Rock  Creek  Canal 
Co.  V.  Chapman,  11  Cal.  161;  People  v.  Gaunt,  23 
Cal.  lot).  The  judge,  after  iiaving  heard  the  tes- 
timony and  argument  of  counsel  in  a  case,  and 
announced  orally  from  the  bench  his  finding,  may 
continue  the  case  until  the  ne.xt  term  of  court. 
Hastings   v.   Hastings,   31    Cal.   95. 

7.  Admissions  to  prevent  a  continuance.  In 
criminal  cases,  on  a  motion  for  continuance  made 
by  defendant,  on  the  ground  of  the  absence  of 
a  material  witness,  based  on  a  sufficient  affidavit, 
the  agreement  of  the  district  attorney,  that  the 
witness,  if  present,  would  have  deposed  as 
averred  in  defendant's  affidavit,  is  not  sufficient 
to  warrant  overruling  the  motion  ;  he  should  have 
agreed  that  the  facts  stated  were  true.  People  v. 
Diaz,  6  Cal.  249.  Where  the  plaintiff,  to  avoid 
the    continuance,     admits    that    a    witness    would 

§  596.  In  cases  of  adjournment  a  party  may  have  the  testimony  of  any 
witness  taken.  The  party  obtaining  a  postponement  of  a  trial  in  any  court 
of  record  must,  if  required  by  the  adverse  party,  consent  that  the  testi- 
mony of  an3^  witness  of  such  adverse  party,  who  is  in  attendance,  be  then 
taken  by  deposition  before  a  judge  or  clerk  of  the  court  in  which  the  case 
is  pending,  or  before  such  notary  public  as  the  court  may  indicate,  which 
must  accordingly  be  done ;  and  the  testimony  so  taken  may  be  read  on  the 
trial,  with  the  same  effect,  and  subject  to  the  same  objections,  as  if  the 
witnesses  were  produced. 

Depositions,  in  the  state.  Post,  §§  2019-2021, 
2031-2038. 

Legislation  §  596.  Enacted  March  11,  1872; 
based  on  Practice  Act,  ^  664,  as  amended  by 
Stats.  1854,  Redding  od.  p.  73,  Kerr  ed.  p.  102, 
§  76,  which  (1)  had  the  words  "shall  also"  in- 
stead of  "must,"  after  "court  of  record,"  and  (2) 
"shall"   instead  of   "must,"   before    "accordingly." 


Essentials  of  deposition.  The  deposi- 
tions must  be  taken  in  the  manner  pre- 
scribed by  the  code,  when  made  a  valid 
condition   to    a   continuance;    and    the   re- 


porter's notes  of  the  testimony  of  the 
witnesses,  at  the  time  of  granting  the  con- 
tinuance, but  not  read  over  or  signed  or 
corrected  by  them,  nor  certified  by  the 
reporter  or  by  any  other  person,  are  lack- 
ing in  the  essential  elements  of  a  deposi- 
tion, and  an  uncertified  transcript  thereof 
is  not  admissible  at  the  trial.  Thomas  v. 
Black,  84  Cal.  221;  23  Pac.  1037. 

CODE  COMMISSIONERS'  NOTE.    Stats.  1854, 
p.  73. 


CHAPTER  IV. 

TRIAL  BY  JURY. 

Article  I.     Formation    of   Jury.     §§  600-604. 
II.     Conduct  of  Trial.     §§  607-619. 
ni.     Verdict.     §§  624-628. 


ARTICLE  I. 

FORMATION  OF  JURY. 

S  600.     Jury,  how  drawn.  §  602.     Challenge  of  jurors  for  cause. 

§  601.     Challenges.      Each    party   entitled   to   four         §  603.     Challenges,  how  tried, 
peremptory  clialUiiges.  §  604.     Jury  to  be  sworn. 

§  600.  Jury,  how  drawn.  When  the  action  is  called  for  trial  by  jury, 
the  clerk  must  draw  from  the  trial-jury  box  of  the  court  the  ballots  con- 
taining the  names  of  the  jurors,  until  the  jury  is  completed,  or  the  ballots 
are  exhausted. 

Legislation  §  600.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  159,  which  read:  "When 
the  action  is  called  for  trial  by  jury,  the  clerk 
shall  prepare  separate  ballots  containing  the 
names  of  the  jurors  summoned  who  have  appeared 
and  not  been  excused,  and  deposit  them  in  a  bo.x. 
He  shall  then  draw  from  the  l)ox  twelve  names, 
and  the  persons  whose  names  are  drawn  shall 
constitute    the    jury.      If    the    ballots    become    ex- 


Jury. 

1.  Generally.     Ante.  §§  190-254. 

2.  Trial.     Ante,  §  §  ]93,  194. 

3.  Trial  by,  conduct  of.    Post,  §§  C07  et  seq. 

4.  Waiver   of.     Post,  S  631. 
Verdict.     I'.iRt,  §§  fi24  el  seq. 
Trial-jury  box.    .\nte.  §  246. 

Jurors,  who  are  competent.    Arte,  §§  198,  199. 
Exceptions  and  excuses.    Ante,  §§  200-202. 


(347 


CRIMINAL   AND    EQUITY    CASES — CHALLENGING    JURORS. 


GOl 


venire,  when  there  is  notliing  to  in<Ucate 
tliat  the  shoritr  is  (iisqualified.  Perkins  v. 
Sunset  Teleplioiie  etc.  Co.,  I'l.l  (Jul.  712; 
10;i  Pac.  190. 

Jury  in  equity  case.  The  defendant  is 
not  entitled  to  demand  a  jury  trial  of  le;;al 
issues  involved  in  an  ecjuitable  action. 
Coghlan  v.  (^uartararo,  15  ('al.  App.  662; 
115  Pac.  664. 

CODE  COMMISSIONERS'  NOTE.  The  origi- 
nal .section  ccmtiiined  provisions  as  to  the  number 
to  compose  a  jury,  llie  nianniT  summonine  tales- 
men, and  the  preparation  of  the  trial-jury  box. 
All  these  provisions  are  contained  in  Part  I  of 
this   code,   vol,    I,   pp.    l'2:i   to   lli'J,    inclusive. 

1.  Jury,  how  constituted.  See  §§  190  to  195, 
inclusive,  ante. 

2.  Qualifications  and  exemptions  of  jurors. 
See  §§  198,  199,  'ioo,  •201,  ante,  A  party  who 
accepts  a  juror,  knowinR  him  to  be  disriualified, 
cannot  afterwards  avail  himself  of  such  disquali- 
fication.    People    V.    Stonecifer.    6    Cal.    411. 

3.  Manner  of  selecting  and  returning  jurors. 
See  §§  204—210,  inclusive,  ante. 

4.  Time  and  manner  of  drawing  jurors.  See 
§§214-221.    inclusive,    ante. 

5.  Manner  of  summoning  jurors.  See  §§  225, 
226,  227,  ant°;  People  v.  Rodrifruez,  10  Cal.  .59: 
People  V.  Stuart,  4  Cal.  225.  Where  the  sheriff 
is  a  party.    Pachcco  v.  Hunsaker,  14  Cal.   120. 

6.  Manner  of  impaneling  jury.  See  §§  246, 
247,  ante.  Tn  a  criminal  case.  People  v.  Scog- 
gins,    37    Cal.    676. 

7.  Excusing  jurors.  See  §  201,  ante;  People  v. 
Arceo,   32   Cal.   40. 


hausted  before  the  jury  is  complete,  or  if  from 
any  cause  a  juror  or  jurors  be  e.xcused  or  ilis 
charfced,  the  slierifT  shall  summon,  under  the 
direction  of  the  court,  from  the  citizen.s  of  the 
county  and  not  from  bystanders,  so  many  quali- 
fied persons  as  may  be  necessary  to  complete  the 
jury.  The  jury  shall  consist  of  twelve  persons, 
unless  the  parties  consent  to  a  less  number.  The 
parties  may  consent  to  any  number  not  less  than 
three.  Such  consent  shall  be  entered  by  the 
clerk  in  the  minutes  of  the  trial." 

Manner  of  drawing  jury  in  criminal  case. 

Twelve  names  must  he  drawn  from  the 
box  by  the  clerk,  and  the  defendant  must 
be  allowed  to  examine  the  whole  twelve 
before  exercising  his  right  of  peremptory 
challenge  as  to  any;  and  those  not  chal- 
lenged or  excused  must  then  be  sworn; 
after  which  as  many  more  names  as  will 
make  up  the  deficiency  must  be  drawn, 
when  the  same  process  must  be  repeated 
until  the  .jury  is  completed.  People  v. 
Scoggins,  37  Cal.  676;  People  v.  Kussell, 
46  Cal.  122;  People  v.  lams,  57  Cal.  115; 
People  V.  Eiley,  65  Cal.  107;  3  Pac.  413; 
People  V.  Hickman,  113  Cal.  80;  45  Pac. 
175. 

Special  venire.  The  court,  in  impanel- 
ing a  trial  .jury  in  a  civil  action,  in- 
stead of  taking  the  names  of  the  jurors 
appearing  on  the  supervisors'  list,  may 
order    the    sheriff     to     summon    a    special 

§  601.  Challenges.  Each  party  entitled  to  four  peremptory  challenges. 
Either  party  may  challen<i:e  the  jurors,  but  where  there  are  several  parties 
on  either  side,  they  must  .join  in  a  challenge  before  it  can  be  made.  The 
challenges  are  to  individual  jurors,  and  are  either  peremptory  or  for 
cause.  Each  party  is  entitled  to  four  peremptory  challenges.  If  no  per- 
emptory challenges  are  taken  until  the  panel  is  full,  they  must  be  taken 
by  the  parties  alternately,  commencing  with  the  plaintiff. 

other  to  take  his  place,  so  that  in  deter- 
mining whether  to  challenge  or  not,  the 
party  may  do  so  with  a  full  panel  before 
him.  Silcos  v.  Lang,  76  Cal.  118;  20  Pac. 
297;  Vance  v.  Richardson,  110  Cal.  414; 
42  Pac.  909.  Each  party  has  the  right  to 
examine  the  twelve  jurors  before  exer- 
cising his  peremptory  challenge  as  to  any, 
and  if  some  are  excused  for  cause,  the 
deficiency  must  be  supplied  with  others, 
who  may,  in  like  manner,  be  examined,  un- 
til twelve  competent  and  qualified  jurors 
are  in  the  box;  thereupon  each  party  may 
exercise  his  right  to  a  peremptory  chal- 
lenge, but  he  cannot  be  required  to  exer- 
cise it  prior  to  this  time.  People  v. 
Scoggins,  37  Cal.  676;  Tavlor  v.  Western 
Pacific  R.  R.  Co..  45  Cal.  323'. 

Right  to  peremptory  challenges.  The 
right  to  challenge  the  jurors  peremptorily 
is  absolute;  and  the  fact  that  a  party  has 
once  passed  the  jury,  including  a  juror 
afterwards  sought  to  be  challenged,  does 
not  cut  off  this  right.  Silcox  v.  Lang,  78 
Cal.  118;  20  Pac.  297.  Where  separate 
trials  are  refused,  and  actions  against 
several  defendants  consolidated,  it  is  not 
error    to   restrict   the    defendants    to    four 


Challenge  for  cause.    Post,  §  602. 
Number  of  peremptory  challenges,   in  justice's 
court.     See  post,  §  885. 

Legislation  g  601.  1,  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  161,  which  read:  "Either 
party  may  challenge  the  jurors,  but  when  there 
are  several  parties  on  either  side,  they  shall  join 
in  a  challenge  before  it  can  be  made.  The  chal- 
lenges shall  be  to  individual  jurors,  and  shall 
either  be  peremptory,  or  for  cause.  Each  party 
shall  be  entitled  to  four  peremptorv  challenges." 
When  enacted  in  1872,  §  601  substi'tuted  (1)  the 
word  "where"  for  "when,"  (2)  "must"  before 
"join,"  for  "shall,"  (3)  "are"  after  "challensjes," 
for  "shall  be,"  (4)  "are  either"  for  "shall  either 
be,"   and    (5)    "is"   for   "shall   be,"   after   "party." 

2.   Amended    by  Code  Amdts.  1873-7-4,  p.  310. 

Constitutionality  of  section.  The  pro- 
vision of  this  section,  that  where  there 
are  several  parties  on  either  side  of  an 
action,  they  must  join  in  a  challenge,  is 
not  violative  of  the  fourteenth  amend- 
ment of  the  Federal  constitution,  in  deny- 
ing to  persons  the  equal  protection  of  the 
laws.  Muller  v.  Hale,  138  Cal.  163;  71  Pac. 
81. 

Procedure  on  challenging  jurors.  The 
proper  j)ractice,  in  the  selection  of  a  jury 
in  a  civil  case,  is  to  fill  the  i)anel,  ami 
upon  the  challenge  of  a  juror  for  cause, 
or  without  cause,  immediately   to  call   an- 


§602 


FORMATION    OF    JURY. 


648 


peremptory  challenges,  in  wliicli  all  must 
join.  San  Luis  Obispo  County  v.  Simms, 
1  Cal.  App.  175;  81  Pac.  972.  Where  the 
defendant  refuses  to  exercise  a  peremptory 
challenge,  and  passes  the  jury  to  the  plain- 
tiff, who  accepts  the  jury,  there  is  an 
acceptance  of  the  jury,  and  the  refusal  of 
the  court  to  permit  the  defendant  there- 
after to  exercise  a  peremptory  challenge  is 
not  error.  Vance  v.  Eichardson,  110  Cal. 
414;  42  Pac.  909. 

Challenge  to  favor  juror.    See  note  9  Am.  Dec. 
81. 


Eight  to  examine  juror  to  determine  whether 
to  exercise  peremptory  challenge.  See  note  109 
Am.  St.  Rep.   564. 

Bight  and  manner  of  exercise  of  peremptory 
challenges  by  joint  parties  in  civil  actions.  See 
note   16  Ann.   Cas.  265. 

Time  of  exercise  of  right  of  peremptory  chal- 
lenge.   See  note   19  Ann.  Cas.   766. 

CODE  COMMISSIONERS'  NOTE.  People  v. 
McCalla,  8  Cal.  303;  People  v.  Scoggins,  37  Cal. 
679.  Each  party  has  a  right  to  put  questions  to 
a  juror,  to  show  not  only  that  there  exists  proper 
grounds  for  a  challenge  for  cause,  but  to  elicit 
facts  to  enable  the  party  to  decide  whether  or 
not  he  will  make  a  peremptory  challenge.  Wat- 
son V.  Whitney,  28  Cal.  378;  People  v.  Reyes,  5 
Cal.  347. 


§  602.  Challenge  of  jurors  for  cause.  Challenges  for  cause  may  be 
taken  on  one  or  more  of  the  following  grounds: 

1.  A  w^ant  of  any  of  the  qualifications  prescribed  by  this  code  to  render 
a  person  competent  as  a  juror; 

2.  Consanguinity  or  affinity  within  the  fourth  degree  to  any  party,  or 
to  an  officer  of  a  corporation,  which  is  a  party ; 

3.  Standing  in  the  relation  of  guardian  and  ward,  master  and  servant, 
emplo3'er  and  clerk,  or  principal  and  agent,  or  debtor  and  creditor,  to 
either  party,  or  to  an  officer  of  a  corporation  which  is  a  party,  or  being  a 
member  of  the  family  of  either  party;  or  a  partner  in  business  with  either 
party;  or  surety  on  any  bond  or  obligation  for  either  party,  or  being  the 
holder  of  bonds  or  shares  of  the  capital  stock  of  a  corporation  which  is  a 
party ; 

4.  Having  served  as  a  juror  in  a  civil  action  or  been  a  witness  on  a  pre- 
vious trial  between  the  same  parties,  for  the  same  cause  of  action ;  or 
having  served  as  a  juror  wdthin  one  year  previously  in  any  civil  action  or 
proceeding  in  which  either  party  was  plaintiff  or  defendant; 

5.  Interest  on  the  part  of  the  juror  in  the  event  of  the  action,  or  in  the 
main  question  involved  in  the  action,  except  his  interest  as  a  member  or 
citizen  or  taxpayer  of  a  county,  city  and  county,  incorporated  city  or 
town,  or  other  political  subdivision  of  a  county,  or  municipal  water  dis- 
trict ; 

6.  Having  an  unqualified  opinion  or  belief  as  to  the  merits  of  the  action 
founded  upon  knowledge  of  its  material  facts  or  of  some  of  them ; 

7.  The  existence  of  a  state  of  mind  in  the  juror  evincing  enmity  against 
or  bias  to  either  party  ; 

8.  That  he  is  a  party  to  an  action  pending  in  the  court  for  which  he  is 
drawn  and  which  action  is  set  for  trial  before  the  panel  of  which  he  is 
member. 


Subd.  1. 

1.  Competent  jurors.    Ante.  §  198. 

2.  Incompetent  jurors.    Ante,  §  199. 

3.  Exemptions    and    excuses.     Ante,    §§   200, 
201. 

Subd.  2.  Consanguinity  or  affinity,  generally. 
Ante.  §  170. 

Challenge  in  criminal  causes.  See  Pen.  Code, 
§§  1055  et  seq. 

Legislation  §  602.  1.  Enacted  March  11,  1873: 
based  on  Practice  Act,  §  162,  as  amended  by 
Stats.  1860,  p.  302.  When  enacted  in  1872,  (1) 
in  subd.  1.  "statute"  was  changed  to  "this  code," 
(2)  in  subd.  2,  "either  party"  was  changed  to 
"any  party";  (3)  in  subd.  3,  "being  security" 
was   changed   to   "surety." 

2,  Amended  by  Code  Amdts.  1873-74,  p.  310, 
(1)   in  subd.  2,  substituting  "fourth"  for  "third"; 


(2)  in  subd.  5,  changing  "the  interest  of  the 
juror"  to  "his  interest";  (3)  in  subd.  6,  (a) 
omitting  "formed  or  expressed."  after  "Having," 
and  (b)  after  "action"  adding  "founded  upon 
knowledge  of  its  material  facts,  or  of  some  of 
them";  (4)  in  subd.  7,  adding  "or  against," 
before  "either  party." 

3.  Amendment  by  Stats.  1901,  p.  145;  un- 
constitutional.     See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  713,  (1)  at 
end  of  subds.  2  and  3,  adding  "or  to  an  officer 
of  a  corporation  which  is  a  party";  (2)  in  subd. 
7,  striking  out  the  words  "or  against,"  before 
"either  party";  (3)  adding  subd.  8,  which  ended 
the  section,  although  the  code  commissioner  said, 
in  his  note  to  this  section,  "The  amendment  adds 
to  the  section  subdivisions  8  and  9,  and  to  sub- 
divisions 2  and  3  the  words  'or  to  an  officer  of 
a  corporation  which  is   a  party.' 


649 


CrOMPETENCY,   ETC. — ENMITY  OR    BIAS,   ETC. 


§602 


5.  Amendrd  by  Rfats.  1909,  p.  1090,  (1)  in 
subd.  "i,  uiltliiiK  H  comma  after  "corporation"; 
(2)  in  subd.  3,  (a)  after  "atjcnt,"  addiiiK  "or 
debtor  and  creditor,"  (b)  chanKing  comma  to 
semicolon  after  "eitlier  party,"  in  the  second  in- 
stance, and  (c)  addint;,  after  "either .  party."  in 
third  in.stance,  "or  licinK  the  holder  of  bonds  or 
shares  of  the  capital  stock  of  a  corporation  which 
is  a  party";  (2)  in  subd.  4,  (a)  l)elore  "or  been," 
addinfc  "in  a  civil  action,"  and  (b)  after  "of 
action,"  adding  "or  having  served  as  a  juror 
within  one  year  previously  in  any  civil  action  or 
proceeding  in  which  either  party  was  plaintiff  or 
defendant";  ( .'t )  in  subd.  (i.  omitting  a  comma 
after  "action"  and  after  "facts";  (4)  in  subd.  8, 
omitting  "for  trial"  after  "pending,"  and  (b)  a 
comma   after   "drawn." 

6.  Amended  by  Stats.  1913,  p.  510,  in  subd. 
5,  substituting  "except  his  interest  as  a  member 
or  citizen  or  taxpayer  of  a  county,  city  and 
county,  incorporated  city  or  town,  or  other 
political  subdivision  of  a  county  or  municipal 
water  district,"  for  "except  Ills  intere.-st  as  a 
member  or  citizen  of  a  munici])al  corporation." 

Challenge  must  be  specific.  A  general 
challenge  of  a  juror  for  cause,  without 
specification  of  the  particular  ground,  is 
insufficient.    Paige  v.  O'Neal.  12  Cal.  483. 

Want  of  qualifications  prescribed  by 
code.  A  .juror,  selected  or  listed,  may  be 
challenged  for  cause,  where  he  does  not 
possess  the  necessary  qualifications.  Peo- 
ple V.  Richards,  1  Cal.  App.  566;  82  Pac. 
691.  The  "last  assessment-roll,"  within 
the  meaning  of  the  statute  prescribing  the 
qualifications  of  jurors,  is  the  last  one  com- 
pleted: the  assessment-roll  is  not  com- 
pleted until  certified  by  the  assessor  and 
delivered  to  the  clerk  of  the  board  of 
supervisors.  Houghton  v.  Market  Street 
Ry.  Co.,  1  Cal.  App.  576;  82  Pac.  972. 

Competency  of  jurors.  See  note  ante, 
§  198. 

Consanguinity  to  a  party.  A  liberal 
construction  is  to  be  given  to  the  second 
subdivision;  and  where  a  brother  of  the 
juror  was  interested  to  the  extent  of  ten 
per  cent  of  the  amount  of  the  recovery,  he 
is  within  the  prohibition  of  the  second 
subdivision.  Mono  County  V.  Flanigan, 
130  Cal.  105;  62  Pac.  293. 

Fiduciary  or  business  relation.  A  ten- 
ant of  i>laintiff,  under  a  lease  which  re- 
quired him  to  deliver,  as  rent,  a  share  of 
the  crop,  is  not  disqualified,  under  the 
third  subdivision.  Arnold  v.  Producers' 
Fruit  Co.,  141  Cal.  738;  75  Pac.  326. 

Juror  in  previous  trial.  A  jury  is  not 
rendered  incompetent  because  it  has  just 
tried  a  case  involving  the  liability  of  the 
defendant  for  a  similar  cause  of  action, 
depending  on  the  same  general  considera- 
tions.  Algier  v.  Steamer  Maria,  14  Cal.  167. 

Interest  in  result  of  action.  The  fifth 
subdivision,  construed,  does  not  expressly 
remove  the  disqualification  of  a  judge,  be- 
cause of  his  membership  or  citizenship 
in  a  municipal  corporation,  which,  alike 
with  that  of  a  juror,  existed  at  common 
law.  Meyer  v.  San  Diego,  121  Cal.  102;  *5(j 
Am.  St.  Rep.  22;  41  L.  R.  A.  762;  53  Pac. 
434. 

Opinion  as  to  merits  of  action.  Where  a 
juror  states  that  he  had  formed  an  opin- 


ion on  an  issue  in  the  case  while  sitting 
as  a  juror  on  a  trial  of  a  different  cause 
of  action,  he  is  properly  excused.  Grady 
V.  Karly,  18  Cal.  lOS. 

Enmity  or  bias.     The  right  to  unbiased 
and  unpr(?judict'd  jurors  is  an  inseparable 
and   inalienable  part  of  the  right   to  trial 
^^y   jury    guaranteed    by    the    constitution; 
but    the   rule   excluding   jurors   for   actual 
bias  in  civil  cases  is  not  to  be  confounded 
with   the    rule   in    criminal   cases,    in   rela- 
tion to  opinions  founded  or  based  on  jjublic 
rumor,    statements    in    public   journals,    or 
common   notoriety,   which   permits  the   ac- 
ceptance  of  a  juror,   if  it  appears   to   the 
court,  on  his  declaration,  that  he  can  and 
will,    notwithstanding    such     opinion,    act 
impartially    and    fairly    on    matters    sub- 
mitted   to    him.      Lombardi    v.    California 
Street   Ry.   Co.,   124   Cal.  311;   57   Pac.   66. 
The  .statement  by  a  juror,  that,  should  the 
testimony    be    evenly   balanced,   he    would 
decide    for    the    plaintiff,    and    should    tho 
verdict  be   for  the   plaintiff,  he   would  go 
to  the  biggest  verdict,  shows  such  bias  in 
favor  of  the  plaintiff  as  to  render  the  dis- 
allowance   of    the    challenge    error.     Lom- 
bardi V.  California  Street  Ry.  Co.,  124  Cal. 
311;  57  Pac.  66.     The  mere  fact  that  jurors 
summoned  are  acquainted  with  the  plain- 
tiff does  not  imply  bias  in  his  favor,  any 
more    than    it    raises    a    presumption    of 
prejudice  against  him.    Perkins   v.   Sunset 
Telephone  Co.,  155  Cal.  712;  103  Pac.  190. 
A    challenge    for    actual    bias,    where    the 
juror  stated  that  he  had  an  abiding  preju- 
dice  against   cases   of   the   class   in   which 
the"  one  he   was   summoned  belonged,   an<l 
that   the   evidence   in    the   particular   case 
must  be  sufficient  to  overcome  such  preju- 
dice,   is     erroneously    overruled.      Fitts    v. 
Southern    Pacific    Co.,    149    Cal.    310;    117 
Am.  St.  Rep.  130;  86  Pac.  710.     In  an  ac- 
tion   to    recover    damages    for    negligence 
in  causing  the  death  of  a  minor  child,  it 
is   error   to    overrule   challenges   to   jurors 
for    actual    bias    shown    generally    against 
such  suits.    Quill   v.   Southern   Pacific   Co., 
140  Cal.  208;  73  Pac.  991.     Where  a  juror 
stated   that   he  regarded   actions   for  libel 
as  being  of  somewhat  the  same  character 
as   speculations;   that,   in   many   instances, 
he    felt    they    were    unwarranted    by    the 
facts;    and    that    his    being    a    newspaper- 
man,  and    having   an    adverse    opinion    of 
damage  suits,  might  create  a  prejudice  in 
his  mind  and   make  him  unfit  to  act  as  a 
juror, — the  disallowance  of  a  challenge  is 
proper,   where   he  said  that   he  would  try 
the  case  upon   the  law  and   the  evidence, 
and  it  was  shown  that  he  had  no  acquaint- 
ance with  the  parties,  and  had  no  knowl- 
edge of  the  facts  in  the  case.    Gravbill  v. 
De    Young,    146     Cal.    421;    SO    Pac.    618. 
Abstract  bias  in  favor  of  one  in  plaintiff's 
position    does    not    render    denial    of    chal- 
lenge   error,    where    the     juror   was    unac- 
quainted with  any  party  to  the  suit  (Baker 


§602 


FORMATION    OP    JURY. 


650 


V.  Borello,  136  Cal.  160;  68  Pac.  591);  but 
the  declaration  of  a  juror,  that  he  was 
hostile  to  all  landlords,  where  the  plaintiff 
was  one,  after  having  been  accepted  and 
informed  of  the  nature  of  the  action,  ren- 
ders him  incompetent.  Lawlor  v.  Linforth, 
72  Cal.  206;  13  Pac.  496. 

Fitness  of  juror  determined  how.  The 
conclusion  of  the  court  on  the  challenge 
of  a  juror  is  to  be  drawn,  not  from  any 
particular  answer  which  the  juror  makes 
to  a  question  asked  him,  but  from  his 
whole  testimony.  Baker  v.  Borello,  136 
Cal.  160;  68  Pac.  591.  Whether  a  pros- 
pective juror  is  fair  and  impartial,  and 
should  be  allowed  to  sit  in  the  case,  is  to 
be  determined,  in  the  first  instance,  by 
the  trial  judge.  Graybill  v.  De  Young,  146 
Cal.  421;  80  Pac.  618. 

Discretion  of  court.  In  passing  upon 
challenges  to  jurors  for  cause,  consider- 
able latitude  of  discretion  is  allowed  to 
the  trial  court.  McKernan  v.  Los  An- 
geles Gas  etc.  Co.,  16  Cal.  App.  280;  116 
Pac.  677. 

Appeal.  The  determination  of  a  chal- 
lenge will  be  interfered  with  on  appeal, 
only  when  the  evidence  adduced  is  such 
that  it  cannot  be  said  from  it,  as  a  matter 
of  law,  that  the  juror  was  so  prejudiced 
therebv  that  he  could  not  be  a  fair  juror 
(Graybill  v.  De  Young,  146  Cal.  421;  80 
Pac.  618;  Mono  County  v.  Flanigan,  130 
Cal.  105;  62  Pac.  293);  and  where  the 
court  exercised  its  discretion  in  excusing 
a  juror  to  attain  justice,  the  appellate 
court  will  interfere  with  great  reluctance. 
Grady  v.  Earlv,  18  Cal.  108;  Lawlor  v. 
Linforth,  72  Cal.  205;  13  Pac.  496. 

Inability  to  understand  the  English  language 
as  ground  for  challenge  to  juror.  See  note  35 
Am.  Rep.   728. 

Challenge  of  jurors  on  account  of  preconceived 
opinions.    See  note  36  Am.  Dec.  521. 

Bias  or  interest  or  prejudice  which  disqualifies 
juror.    See  note  9  Am.   St.   Rep.   744. 

Prejudice  as  to  business  of  party  to  action  as 
disqualifying  juror.    See  note  20  Ann.  Cas.   1312. 

Interest  or  bias  sufficient  to  disqualify  juror 
in  eminent  domain  proceedings.  See  note  5  Ann. 
Cas.  923. 

Effect  on  competency  of  juror  of  residence  in 
county  or  municipality  interested  in  suit.  See 
notes  6  Ann.  Cas.  961:  Ann.  Cas.   1913A,   120. 

Sympathy  for  laboring  men  generally  as  suffi- 
cient ground  for  challenge  of  juror  for  cause.  See 
note  Ann.  Cas.  1913A,  1279. 

Sympathy  for  plaintiff  in  action  for  personal 
injuries  as  bias  sufficient  to  constitute  disqualifi- 
cation of  juror.     See   note   Ann.   Cas.    1912B,    1183. 

Prejudice  against  race  or  color  of  party  to  ac- 
tion as  constituting  disqualification  of  juror.  See 
note  Ann.  Cas.  1912H,  969. 

Competency  of  jurors  who  have  previously 
served  in  cause  involving  same  or  similar  facts. 
See  notes  4   Ann.  Cas.  96.");   68  L.  R.  A.  871. 

Personal  knowledge  of  facts  to  be  proved  as 
affecting  competency.    See  note  63  L.  R.  A.  807. 

Who  are  related  by  affinity.    See  note   79   Am. 

8t.   Rep.    2(111. 

Competency  of  employee  of  party  as  juror.    See 

note    12   .\nn.   Cas.   306. 

Relationship  to  witness  as  constituting  dis- 
qualification of  juror.  See  note  Ann.  Cas.  1912B, 
1060. 

Relationship  of  juror  to  party  as  ground  for 
new  trial.    See  note  18  L.  K.  A.  477, 


Religious  affiliations  as  affecting  competency  of 
juror.    See  note  17  Ann.  Cas.  343. 

Membership  in  a  religious  society  or  denomina- 
tion as  a  disqualification  to  serve  as  a  juror  in  a 
case  involving  its  rights.  See  note  25  L.  R.  A. 
(X.  S.)    992. 

Relationship  to  private  corporation  or  associa- 
tion for  profit  which  will  disqualify  a  juror  in  a 
civil  action  in  which  it  is  interested.  See  note  40 
L.  R.  A.   (N.  ^.)   978. 

Competency  as  juror  of  employee  or  relative  of 
employee  of  party  or  person  interested  in  an  ac- 
tion,   tiee  note  40  L.  R.  A.   (N.  S. )   982. 

CODE  COMMISSIONERS'  NOTE.  1.  Want  of 
qualifications.  See  §§  198,  199,  200,  and  201, 
ante,   and  subd.  2   of  note  to   §  600,   aule. 

2.  Consanguinity.  See  §§  1389  to  1393,  in- 
clusive,  of  tue  Civil  Code. 

3.  Juror  or  witness  on  former  trial.  Where  a 
juror  had  been  accepted  by  both  parties,  and  sub- 
sequently, during  the  examination  of  another 
juror,  the  fact  came  out  that  there  had  been  a 
lormer  trial  of  forcible  entry  and  detainer  for 
the  same  ground  now  in  dispute,  and  the  juror 
accepted  then,  of  his  own  accord,  stated  that  the 
title  to  llie  ground  had  been  spoken  of  in  the 
forcible  entry  case,  and  that  his  mind  was  made 
up  as  to  tile  titlCj  and  the  plaintiffs  thereupon 
cnallenged  him  for  cause,  and  the  court  excused 
him,  deJendants  resisting,  on  the  ground  thiit  it 
was  too  late.  Held,  not  error;  tnat  where  the 
court  below  exercised  its  discretion  in  excusing 
a  juror  to  attain  justice,  this  court  would  inter- 
fere with  great  reluctance.  Grady  v.  Early,  18 
Cal.  108.  That  a  jury  has  just  tried  a  case 
involving  the  liability  of  defendant  for  a  similar 
cause  01  action,  depending  on  the  same  general 
considerations,  does  not  render  a  member  of  it 
incompetent  to  sit  in  the  subsequent  case.  Algier 
V.    Steamer  Maria,    14   Cal.   167. 

4.  Unqualified  opinions.  If  a  juror  heard  or 
read  a  statement  of  the  facts  of  a  case,  it  does 
not,  of  itself,  disqualify  him,  for  he  may  not  have 
formed  or  expressed  an  "unqualified  opinion."  A 
mere  impression  or  suspicion  derived  trom  such 
reading  or  hearing  will  not  disqualify.  The 
juror  must  have  reached  a  conclusion,  like  that 
upon  which  he  would  be  willing  to  act  in  ordinary 
matters.  People  v.  Reynolds,  16  Cal.  128.  In  an 
action  of  ejectment,  a  juror  who  has  formed  an 
opinion  adverse  to  the  validity  of  title  under 
which  defendants  claimed,  is  disqualified.  White 
V.  Moses,  11  Cal.  68.  A  verdict  of  a  jury  will 
not  be  set  aside  on  the  ground  that  one  of  the 
jurors  "knew  and  was  aware  of  the  circum- 
stances connected  with  the  affair,"  the  subject- 
matter  of  the  suit,  where  no  objection  was  raised 
until  after  verdict  rendered,  and  it  not  appearing 
that  he  had  formed  or  expressed  an  opinion  be- 
fore the  trial,  or  was  in  any  way  biased  in  favor 
of  plaintiff.    Lawrence   v.   Collier,    1   Cal.   37. 

5.  Bias.  Each  party  has  a  right  to  put  ques- 
tions to  a  juror,  to  show  not  only  that  there 
exist  proper  grounds  for  a  challenge  for  cause, 
but  to  elicit  facts  to  enable  him  to  decide  whether 
he  will  make  a  peremptory  challenge  or  not. 
People  V.  Reyes,  5  Cal.  347;  Watson  v.  Whit- 
ney, 23  Cal."  375.  Prejudice  has  no  degrees. 
The  law  contemplates  that  every  juror  who  tries 
a  cause  shall  have  a  mind  free  from  all  bias  or 
prejudice  of  any  kind;  and  if  a  juror  is  pre- 
judiced in  any  manner,  he  is  not  a  proper  person 
to  sit  on  the  jury.  People  v.  Reyes,  5  Cal.  347. 
A  juror,  being  challenged,  was  examined  before 
triers,  and  asked  the  following  questions:  1.  Are 
you  not  a  member  of  a  secret  and  mysterious 
order,  known  as  and  called  Know-Nothings,  which 
has  imposed  on  you  an  oath  or  obligation,  beside 
which  an  oath  administered  to  you  in  a  court  of 
justice,  if  in  conflict  with  that  oath  or  obligation, 
would  be  by  you  disregarded?  2.  Are  you  a 
member  of  any  secret  association,  political  or 
otherwise,  by  your  oaths  or  obligations  to  which 
any  prejudice  exists  in  your  mind  against  Catholic 
foreigners?  3.  Do  you  belong  to  any  secret 
political  society,  known  as  and  called  by  the 
people  at  large  in  the  United  States,  Know- 
Nothings?  and  if  so,  are  you  bound  by  an  oath, 
or  other  obligation,  not  to  give  a  prisoner  of 
foreign  birth,  in  a  court  of  justice,  a  fair  and 
impartial    trial!      The    court    refused    to    permit 


651  CHALLENGES    TRIED    UOW— OATH— ORDER    OF    TRIAL.         §§  603-607 

the    juror    to    answer    the    questions.      On    appeal,  court,    is   a    competent   juror.     McFadden    v.    Wal- 

the    refu.sal    was    held    to    be    error,    the    appellate  laee.  HS  Cal    51 

court    holding   that   a   person   who   had   taken    Mi.-h  6.   Manner  of  taking  ol)jecUon.     A  ceneral  chal- 

oaths    would    be    Krosslv    unfit    to    art    as    a    juror.  leiite     f,,r     rauKe.     wilhi.wt      Kperification     of     th« 

1  eople   V.    K eyes     h   (  al.    847;    see   also   Watson    v.  particular  pround,    is   insuffirient.      The    code   enu- 

Ulutney,   2.^   Cal.   M7.X      A   person   who   knows   the  morates      several      different      L'rounds      for     which 

defendants,    who    declares    that    if    the    testimony  such    challenee    mav    be    taken,    and    a   desienation 

was    evenly    ba  aneed     he    >yould    incline    to    their  of    the    one    upon    which    any    particular   challenee 

side,    but   would   decide   against    them   if   the   testi-  rests     is     essential     to     its     consideration     bv     the 

mony    was    against    them,    and     he    would    do    his  court.      It    is    not    sufficient    to    sav:    "I    challenge 

duty    as    a    juror    under    the    instruciions    of    the  the  juror  for  cause."     Paige  v.  O'Neal,  12  Cal.  483. 

§  G03.     Challenges,  how  tried.      rhall('ii<:os  for  r-ause  must  be  tried  by 

the  court.     The  juror  challen-^ed  and  any  other  person  may  be  examined  as 
a  witness  on  tlie  trial  of  the  eliallenfre. 

Challenge,   grounds   of,   in  justice's   court.     See  Discharge   of   accepted  Juror  for  Incapacity  or 

post,  §  88:).  impropriety.    See  note  1   .\m.  St.  K.p.  :>-rz. 

Legislation  S  603.      Enacted   March    11,    1872;  Improper  refusal  of  court  to  sustain  ohallenge 

based   on    Practice   Act,  §  163,    which   had    "shall"  *°   juior   for   cause   as   warranting   reversal   where 

instead  of    'must"  injured  party  exhausts  his  peremptory  challenges. 

Examination  of  jurors  upon  voir  dire.    See  note  ^'^•-'  "^^'^  ^  -*■""•  ^'"^-  ^'^^■ 
23  Am.  Dec.  177. 

§604.     Jury  to  be  sworn.     As  soon  as  the  jury  is  completed,  an  oath 

must  be  administered  to  the  jurors,  in  substance,  that  they  and  each   of 

them  will  well  and  truly  try  the  matter  in  issue  between -,  the  plaintiff, 

aiid .  defendant,  and  a  true  verdict  render  according  to  the  evidence. 

°f,|»-  .^f^^i'iistration     of,     generally.       Post,  oath  means  that  he  is  to  act  upon  his  own 

*^  judgment.    People  v.  Perry,  144  Cal.  748: 

Legislation  8  604.      Enacted   March    11.    1872;  78  Pac.  284. 

based   on   Practice   Act,  g  160.   which    (1)    had   the  T>vaei,i-,-,v.+<«».     »„    *»     _     jj    ^       -r^ 

words  "oath  or  affirmation  shall"  instead  of  "oath  i-iesumption     as    tO    Verdict.      It    cannot 

must,"    (2)   did  not  have  the  word  "and"  before  be  assumed  that  any  member  of  a  jurv  ren- 

"each  of  them,"  and  (3)  had  the  word  "the"  be-  dered  his  verdict  in   violation   of  his'  oath 

fore  'defendant.  ^jj,j   ^-^^  instructions  of  the  court.    People 

Jury  sworn  when  completed.     When  the  v.  Loomcr,  13  Cal.  App.  654;  110  Pac  466. 

jury  is  completed,  it  is  to  be  sworn.      Peo-  Failure  of  record  to  show  that  jury  were  sworn 

pie    V.    Scoggins,    37    Cal.    67(i;    Tavlor    v.  as   ground  for   reversal.     See   notes   8    Ann     Cas. 

Western  Pacific  E.  E.  Co.,  4.')  Cal.  323.  '■'"'•  >  '  •^""-  ^'■'''-  i"^- 

Explanation  of  meaning  of  oath.     It  is  ..  ^op^.  cojimissioners'  note.     The  term 

,                             i.       ■    c                   ■             iu    i    u-  °^^f'       includis       aftirmation.        See    subd.    7    of 

not  necessary   to   iniorm   a  juror  that   his  §  17^  ante. 


ARTICLE  11. 

CONDUCT  OF  TRIAL. 

§607.     Order  of  proceeding  on  trial.  §614.     May  come   into   court   for   further   instruc- 

§  608.     Charge  to  the  jury.      Court  must  furnish,  tions. 

in  writing,   upon  request,   the  points   of  §615.     Proceedings  if  juror  becomes   sick. 

law  contained  therein.  §  616.     When   prevented   from   giving   verdict,    the 

§  609.     Special  instructions.  cause  may  be  again  tried. 

§  610.     View  by  jury  of  the  premises.  §  617.     While  jury  are  absent,  court  may  adjourn 

§  611.     Admonition  when  jury  permitted  to  sepa-  from   time   to  time.      Sealed  verdict. 

rate.  §  618.     Verdict,  how  declared.      Form  of.      Polling 

§  612.     Jury  may  take  with  them  certain  papers.  the  jury. 

§613.     Deliberation  of  jury,  how  conducted.  §619.     Proceedings  when  verdict  is   informal. 

§  607.  Order  of  proceeding  on  trial.  When  the  jury  has  been  sworn, 
the  trial  must  proceed  in  the  following  order,  unless  the  judge,  for  special 
reasons,  otherwise  directs : 

1.  The  plaintiff,  after  stating  the  is.sue  and  his  case,  must  produce  the 
evidence  on  his  part ; 

2.  The  defendant  may  then  open  his  defense,  and  offer  his  evidence  in 
support  thereof; 

3.  The  parties  may  then  respectively  offer  rebutting  evidence  only,  un- 
less the  court,  for  good  reason,  in  furtherance  of  justice,  permit  them  to 
offer  evidence  upon  their  original  case; 


607 


CONDUCT   OF  TRIAL  BY  JURY. 


652 


Ante, 


4.  When  the  evidence  is  concluded,  unless  the  case  is  submitted  to  the 
jury  on  either  side  or  on  both  sides  without  argument,  the  plaintiff  must 
commence  and  may  conclude  the  argument; 

5.  If  several  defendants,  having  separate  defenses,  appear  by  different 
counsel,  the  court  must  determine  their  relative  order  in  the  evidence  and 
argument ; 

6.  The  court  may  then  charge  the  jury. 

tion  of  the  complaint.  Turner  v.  Southern 
Pacific  Co.,  142  Cal.  .580;  76  Pac.  384. 
Proof  of  the  execution  of  an  instrument, 
rolled  upon  by  the  defense,  is  not  proper 
on  the  cross-examination  of  the  plaintiff. 
Haines  v.  Snedigar,  110  Cal.  18;  42  Pac. 
462.  Any  error  in  admitting  a  copy  of  a 
deed  is  cured  by  subsequent  proof  of  its 
loss.  Kenniff  v.  Caulfield,  140  Cal.  34;  73 
Pac.  803.  The  defense  of  a  former  ad- 
judication is  available  only  upon  proof 
thereof,  made  only  after  the  plaintiff  has 
proved  his  case.  Harding  v.  Harding,  148 
Cal.  397;  83  Pac.  434;  Watkins  v.  Glas,  5 
Cal.  App.  68;  89  Pac.  840. 

Admissibility  of  evidence  in  rebuttal. 
It  is  within  the  discretion  of  the  court  to 
allow,  for  good  cause  shown,  the  admission 
of  evidence  in  rebuttal,  which  should  have 
been  introduced  in  presenting  the  main 
case.  Patterson  v.  San  Francisco  etc.  Ry 
Co.,  147  Cal.  178;  81  Pac.  531;  Lisman  v 
Early,  15  Cal.  199;  Yankee  .Jim's  Union 
Water  Co.  v.  Crary,  25  Cal.  504;  85  Am 
Dec.  145;  Kohler  v.  Wells  Fargo  &  Co. 
26  Cal.  606.  The  admissions  of  a  defend 
ant  are  properly  excluded  in  rebuttal 
where  the  plaintiff  has  not  asked  permis 
sion  to  reopen  his  case  for  that  purpose 
Young  V.  Brady,  94  Cal.  128;  29  Pac.  489 
No  good  reason  being  shown,  it  is  not 
error  to  refuse  to  permit,  in  rebuttal,  addi 
tional  evidence  as  to  matters  gone  into 
fully  in  the  main  case  (Patterson  v.  San 
Francisco  etc.  Ry.  Co.,  147  Cal.  178;  81 
Pac.  531);  nor  is  it  error  to  refuse  to  allow 
testimony  held  in  reserve  until  the  testi- 
mony of  the  other  party  is  in,  and  then 
attempted  to'  be  introduced  by  way  of 
rebuttal  (Kohler  v.  Wells  Fargo  &  Co.,  26 
Cal.  606) ;  nor  is  it  error  to  refuse  to  allow 
a  plaintiff  to  recall  a  witness,  in  rebuttal, 
for  the  sole  purpose  of  contradicting  a 
witness  for  the  defendant  on  a  point  upon 
which  the  plaintiff's  witness  has  already 
testified.  Phelps  v.  MeGloan,  42  Cal.  298. 
Entering  upon  the  original  case  by  the 
plaintiff,  and  again  proving  the  same  facts 
that  were  proved  by  him  in  making  his 
prima  facie  case,  is  not  authorized.  Yan- 
kee Jim's  Union  Water  Co.  v.  Crary,  25 
Cal.  504.  It  is  proper  to  admit,  in  rebut- 
tal, evidence  of  deraignment  of  title, 
where  the  defendant  relies  upon  adverse 
possession,  the  plaintiff  being  entitled  to 
rely  on  prima  facie  evidence  of  title  in  the 
first  instance  (Abbey  Homestead  Ass'n  v. 
Willard,  48   Cal.   614);   and  also   evide"nce 


Proceedings,  etc.,  on  trial. 

1.  Amendments.    Ante,  §  473. 

2.  Either   party   may   bring   on   trial. 
§  594. 

3.  Nonsuits,  etc.    Ante,   §  581. 

4.  As  to  proof  necessary  to  make  out  case. 
Post,  §§  1867,  1869. 

5.  Variance,     Ante,  §§  469-471. 

6.  View  by  jury.    Post,  §  610. 
Evidence. 

1.  Order  of  proof.    Post,  §  2042. 

2.  Admissibility  is  for   court.    Post,  §  2102. 

3.  Allegations,  material,  only,  need  be  proved. 
Post,    §  1867. 

4.  Burden  of  proof.    Post,  §§  1869,  1981. 

5.  Relevancy    of    evidence.     Post,    §§    1868- 
1870. 

6.  Relevancy,  collateral  facts.    Post,  §§  1868, 
1870. 

Witnesses. 

1.  Answer,  witness  must.      Post,  §  2065. 

2.  Cross-examination.     Post,  §  2048. 

3.  Direct  examination.     Post,  §  2045. 

4.  Excluding     witnesses     from     court-room. 
Post,  §  2043. 

5.  Experts.     Post,  §  1870,  subd.  9. 

6.  Impeaching,    and   evidence   of   good   char- 
acter.   Post,  §§  2049-2053. 

7.  Interpreters.     Post,  §  1884. 

8.  Leading  questions.    Post,  §  2046. 

9.  Mode  of  interrogation.    Post,  §  2044. 

10.  Oaths.     Post,  §§  2093-2097. 

11.  Protection  of  witnesses.    Post,  §  2066. 

12.  Refreshing  memory.    Post,  §  2047. 

13.  Testimony,    clerk    to    take    down,    if    no 
shorthand  reporter.    Post,  §  1051. 

14.  Writing    shown    to    witness,    other    side 
may  see.    Post,  §  2054. 

Charge  to  jury.    Post,   §§  608,  609. 

Legislation  §  607.      Enacted  March  11,  1872. 

Construction  of  section.  The  court  may 
depart  from  the  order  of  procedure  pre- 
scribed in  this  section,  but  error  cannot 
ordinarily  be  predicated  upon  its  refusal 
to  do  so.  Watkins  v.  Glas,  5  Cal.  App.  08; 
89  Pac.  840. 

Plaintiffs,  who  are.  Contestants  of  the 
probate  of  a  will  are  plaintiffs,  and  have 
the  affirmative  of  all  the  issues  raised  by 
the  contest.  Estate  of  Dalrymple,  67  Cal. 
444;  7  Pac.  906;  Estate  of  Latour,  140  Cal. 
414;  73  Pac.  1070. 

Order  of  proof.  The  mere  order  in 
which  evidence  is  introduced  is  very  much 
in  the  discretion  of  the  court,  and  will 
not  be  interfered  with  on  appeal,  except 
for  abuse  of  discretion.  Bates  v.  Tower, 
103  Cal.  404;  37  Pac.  385;  Crosett  v. 
Whelan,  44  Cal.  200;  People  v.  Shainwold, 
51  Cal.  468.  Where  a  denial  places  the 
burden  of  proof  on  the  defendant,  it  is  not 
error  to  require  him  first  to  introduce  evi- 
dence in  support  of  an  affirmative  defense 
thus  set  up.  Clarke  v.  Fast,  128  Cal.  422; 
61  Pac.  72.  Evidence  in  anticipation  of 
an  affirmative  defense  is  properly  excluded, 
where  it  is  not  responsive  to  any  allega- 


653 


MOTION    TO    STRIKE    OUT — ARGUMENT — REOPENING    CASE. 


§607 


that  the  plaintiff  was  a  boua  fide  purchaser 
in  good  faith,  without  notice,  and  for  a 
valuable  consideration,  in  an  action  to 
quiet  title,  wliere  the  defendant  had  in- 
troduced a  deed  of  a  date  jirior  to  that  of 
the  plaintiff  (Douglass  v.  Willard,  129  Cal. 
38;  61  Pae.  572);  and  also  additional  evi- 
dence of  the  credibility  of  a  witness, 
which  has  been  attacked  by  the  evidence 
of  the  ojiposite  party  (Wade  v.  Thayer,  40 
Cal.  578);  and  evidence  to  explain  testi- 
mony which  the  defendant  had  introduced 
to  contradict  the  plaintiff's  testimonv. 
Bradford  v.  Woodworth,  108  Cal.  684;  41 
Pac.  797. 

Sufficiency  of  evidence.  In  an  action  to 
recoNcr  damages  for  jiersonal  injuries  to 
the  plaintiff  as  the  result  of  an  assault, 
wherein  the  defendant  admits  the  assault, 
but  pleads  self-defense,  the  plaintiff,  in 
order  to  establish  his  case,  is  not  required 
to  prove  that  the  defendant  assaulted  him 
w-ithout  cause.  Hardy  v.  Schirmer,  163 
Cal.  272;  124  Pae.  993. 

Motion  to  strike  out  testimony.  A  mo- 
tion to  strike  out  the  testimony  of  a  wit- 
Dess,  to  be  available,  must  be  directed  with 
precision  to  the  testimony  sought  to  be 
stricken  out.  Lucy  v.  Davis,  163  Cal.  611; 
126  Pac.  490.  A  party  objecting  to  a 
question,  or  moving  to  strike  out  testi- 
mony, should  be  required  to  state  the 
grounds  of  his  objection  or  motion.  Spear 
v.  United  Eailroads,  16  Cal.  App.  637;  117 
Pac.  956.  Where  no  objection  is  made 
to  the  admission  of  evidence  at  the  time 
it  is  given,  a  motion  to  strike  it  out,  after 
the  case  is  closed,  is  properlv  denied. 
Perkins  v.  Blauth,  163  Cal.  782;' 127  Pac. 
50.  After  a  witness  has  testified  to  his 
opinion  of  the  mental  condition  of  a  testa- 
tor, and  also  to  other  matters,  a  motion 
to  strike  out  the  entire  testimony  of'  the 
witness,  on  the  ground  that  he  was  not  an 
intimate  acquaintance,  does  not  lie.  Estate 
of  Huston,  163  Cal.  166;  124  Pae.  852. 

Right  to  ope-Ji  and  close  argument. 
Where  the  ownership  of  land,  in  condemna- 
tion proceedings,  is  not  in  issue,  the  de- 
fendant has  no  right  to  open  and  close 
the  argument:  that  right  belongs  to  the 
plaintiff.  Mendocino  County  v.  Peters,  2 
Cal.  App.  24;  82  Pac.  1122. 

Argument  of  counsel  may  include  what. 
The  argument  is  under  the  control  of  the 
court,  and  extraneous  matter  should  not  be 
brought  in  and  commented  upon.  Knight 
V.  Russ,  77  Cal.  410;  19  Pac.  698.  It  is 
not  misconduct  for  the  defendant's  coun- 
sel, in  arguing  to  the  jury,  to  refer  to 
matters  covered  bv  findings  that  are  be- 
fore them.  Gjurich  v.  Fieg,  164  Cal.  429; 
129  Pac.  464.  It  is  within  the  discretion 
of  the  court  to  permit  counsel  to  read  to 
the  jury  and  to  comment  upon  instructions 
previous] V  settled  bv  the  court  (Boreham 
V.  Byrne,' 83  Cal.  23;  23  Pac.  212);  and  to 
read  sections  of  the  codes  to  the  jurv,  in 


argument  (Meyer  v.  Foster,  147  Cal.  166; 
81  Pac.  402;  and  see  Peoj)le  v.  Anderson, 
44  Cal.  65;  Peoide  v.  Forsvthe,  65  Cal.  101; 
3  Pac.  402;  People  v.  Treadwell,  69  Cal. 
226;  10  Pac.  502;  Sullivan  v.  Koyer,  72 
Cal.  248;  1  Am.  St.  Rep.  51;  13  Pac.  6.55); 
and  the  reading  of  pleadings,  or  calling 
the  attention  of  the  jury  to  facts  alleged 
therein,  during  the  argument,  is  not  im- 
]iroper  (Knight  v.  Kuss,  77  Cal.  410;  19 
Cal.  698);  but  the  practice  of  rea<ling  law 
books  to  the  jury  is  not  a  commendable 
one;  hence,  a  refusal  to  allow  counsel  to 
read  exttacts  from  the  decisions  of  the 
su|>reme  court  is  not  error.  People  v.  God- 
^vin.  12:;  Cal.  374  ;  ",  Pac.  1059. 

Written  argument.  To  permit  a  motion 
to  be  argued  on  briefs  is  simply  to  permit 
a  written  argument  on  the  motion  instead 
of  an  oral  one.  McNeill  &  Co.  v.  Doe,  163 
Cal.  338;  125  Pac.  345.  , 

Reopening  of  case  after  submission.  ' 
The  reopening  of  the  case  after  submis- 
sion., for  the  introduction  of  additional 
evidence,  is  within  the  discretion  of  the 
court  (Miller  v.  Sharp,  49  Cal.  233;  Bris- 
walter  v.  Palomares,  66  Cal.  259;  5  Pac. 
226;  Consolidated  National  Bank  v.  Pacific 
Coast  S.  S.  Co.,  95  Cal.  1;  29  Am.  St.  Rep. 
85;  30  Pac.  96;  San  Francisco  Breweries 
v.  Schurtz,  104  Cal.  420;  38  Pac.  92; 
Douglass  v.  Willard,  129  Cal.  38;  61  Pac. 
572);  and  the  appellate  court  will  inter- 
fere with  the  orders  of  the  lower  court,  in 
such  cases,  only  for  abuse  of  discretion. 
Douglass  V.  Willard,  129  Cal.  38;  61  Pac. 
572.  It  is  not  an  abuse  of  discretion  to 
allow  the  reopening  of  the  ease,  after  sub- 
mission, in  order  to  permit  the  plaintiff  to 
prove,  by  the  clerk's  register  of  actions, 
that  a  prior  action  for  the  same  cause  had 
been  dismissed  in  proper  form  (Loewenthal 
V.  Coonan,  135  Cal.  381;  87  Am.  St.  Rep. 
115;  67  Pac.  324) ;  nor  to  refuse  the  reopen- 
ing, where  the  proposed  evidence  is  merely 
cumulative,    and    its    admission    could    not  , 

affect  the  result  (Estate  of  Walker,  143  ^^jUi 
Cal.  162;  82  Pac.  770);  nor  to  refuse  the 
reopening,  to  supply  proof  as  to  the  sufli- 
cieucy  of  a  tax  deed  admitted  in  proof 
of  title,  after  objection  and  warning  of 
opposing  counsel  of  the  necessity  of  such 
proof  (Haines  v.  Young,  132  Cal.  512;  64 
Pac.  1079);  nor  to  refuse  the  reopening, 
where  no  issue  is  raised  by  the  pleadings 
to  which  the  evidence  offered  is  relevant. 
San  Francisco  Breweries  v.  Schurtz,  104 
Cal.  420;  38  Pac.  92.  Where  an  amended 
complaint  was  permitted  to  be  filed,  based 
on  an  affidavit  setting  up  facts  learned 
since  the  case  was  tried  and  submitted, 
and  permission  was  given  to  take  further 
testimony,  what  further  relevant  testi- 
mony may  be  allowed  is  within  the  dis- 
cretion of  the  court.  I>ee  v.  Murphv,  119 
Cal.  364;  51  Pac.  549,  955. 

Bight  of  trial  court  to  direct  verdict  at  close 
of   opening   statement   of   plainti£f's    counsel.    See 

note   14   Ann.   Cas.    699. 


I 


608 


CONDUCT   OF  TRIAL  BY   JURY. 


654 


trials  are  now  sometimes  conducted,  the  counsel 
sits  leisurely  in  his  seat,  writing  down  at  length 
all  the  questionsv  and  answers,  and  the  court 
meeting  at  ten  and  adjourning  at  three,  a  single 
witness  remains  under  examination  from  day  to 
day.  and  the  trial  lasts  for  weeks,  when  it  should 
be  ended  in  as  many  days.  .  .  .  With  resolution 
on  the  part  of  the  courts,  and  a  few  rules,  such 
as  they  should  adopt,  we  are  persuaded  that 
more  than  half  the  time  now  spent  in  trials  might 
be  saved."      Field,   Graham,  and  Loomis. 


CODE  COMMISSIONEBS'  NOTE.  "The  length 
to  which  trials  are  now  protracted  is  a  matter  of 
great  and  just  complaint.  The  remedy  lies  chiefly 
with  the  courts.  If  they  would  adhere  inflexibly 
to  the  rule  that  a  question  once  decided  shall 
not  be  debated  anew,  and  would  stop  the  ex- 
amination of  a  witness  when  he  has  been  already 
sufficiently  examined,  a  vast  deal  of  time  might 
be  saved.  It  is  a  rule  in  the  English  courts, 
and  in  the  courts  of  some  of  our  states,  that  a 
counsel  shall  stand  while  he  is  examining  a  wit- 
ness.     The   same   rule   would  be   useful   here.      As 

§  608.  Charge  to  the  jury.  Court  must  furnish,  in  writing,  upon  re- 
quest, the  points  of  law  contained  therein.  In  charging  the  jury  the  court 
may  state  to  them  all  matters  of  law  which  it  thinks  necessary  for  their 
information  in  giving  their  verdict ;  and,  if  it  state  the  testimony  of  the 
case,  it  must  inform  the  jury  that  they  are  the  exclusive  judges  of  all  ques- 
tions of  fact.  The  court  must  furnish  to  either  party,  at  the  time,  upon 
request,  a  statement  in  writing  of  the  points  of  law  contained  in  the  charge, 
or  sign,  at  the  time,  a  statement  of  such  points  prepared  and  submitted  by 
the  counsel  of  either  party. 

Matters  of  law,  court  stating,  in  charge.  Const., 
art.  VI,  §  19;  post,  §§  657,  subd.  7,  §§  2102,  2061. 

Legislation  §  608.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  165,  which  had  (1)  the 
word  "shall"  instead  of  "may,"  in  first  line,  (2) 
the  words  "shall  also"  instead  of  "must,"  before 
"inform  the  jury,"  (3)  the  word  "shall"  instead 
of  "must,"  before  "furnish  to  either,"  and  (4) 
the  word  "shall"  before  "sign." 

2.  Amendment  by  Stats.  1901,  p.  145;  uncon- 
.stitutional.     See  note    ante,    §  5. 

Must  be  on  law.  Each  party  is  entitled 
to  instructions  on  the  law  of  the  case,  on 
the  theory  that  the  jury  will  regard  all 
his  testimony  as  true.  Sperry  v.  Spaulding, 
45  Cal.  544.  Eefusal  or  neglect  to  in- 
struct on  commonplace  matters  of  law  is 
not  ground  for  reversal,  when  no  errone- 
ous instruction  on  the  subject  is  given, 
jurors  being  assumed  to  have  ordinary  in- 
telligence and  good  sense.  Davis  v.  Mc- 
Near,  101  Cal.  606;  36  Pae.  105;  Estate  of 
Keegan,  139  Cal.  123;  72  Pac.  828.  Quot- 
ing from  the  decisions  of  other  courts,  in 
other  cases,  is  not  error,  if  the  quotations 
correctly  state  the  law.  Cousins  v.  Par- 
tridge, 79  Cal.  224;  21  Pac.  745;  Estate  of 
Spencer,  96  Cal.  448;  31  Pac.  453;  People 
v.  McNabb,  79  Cal.  419;  21  Pac.  843;- 
Etchepare  v.  Aguirre,  91  Cal.  288;  25  Am. 
St.  Rep.  180;  27  Pac.  668.  Incorrect  in- 
structions are  proper! v  refused  (Silva  v. 
Bair,  141  Cal.  599;  7.5  Pac.  162);  as  are 
also  instructions  not  containing  a  state- 
ment of  anv  rule  of  law.  Higgins  v.  Wil- 
liams, 114  Cal.  176;  45  Pac.  1041.  All  the 
law  applicable  to  the  case  is  not  required 
to  be  stated  in  a  single  instruction.  Ander- 
son v.  Seropian,  147  Cal.  201;  81  Pac.  521; 
Bradley  v.  Lee,  38  Cal.  362.  The  weight 
of  evidence,  or  preponderance  of  proba- 
bility, is  sufficient  to  establish  the  fact: 
an  instruction  to  the  jury,  that  it  should 
be  proved  "to  your  satisfaction,  by  a  pre- 
ponderance of  the  evidence,"  would  be 
t)etter  without  the  phrase  "to  your  satis- 
faction." Hutson  V.  Southern  California 
By,  Co.,  150  Cal.  701;  89  Pac.  1093. 


Jury  must  not  judge  law.  An  instruc- 
tion leaving  the  jury  to  determine  whether 
or  not  the  answer  denies  the  allegations  of 
the  complaint  is  erroneous:  the  construc- 
tion of  pleadings  is  for  the  court  (Taylor 
V.  Middleton,  67  Cal.  656 j  8  Pac.  594); 
and  an  instruction  submitting  to  the  jury 
the  question  as  to  what  facts  were  ad- 
mitted by  the  pleadings  is  properly  re- 
fused. Tevis  V.  Hicks,  41  Cal.  123;  Taylor 
V.  Middleton,  67  Cal.  656;  8  Pac.  594. 

Instructions  bind  jury.  The  jury  are 
bound  by  the  instructions,  whether  correct 
or  not  (Loveland  v.  Gardner,  79  Cal.  317; 
4  L.  R.  A.  395;  21  Pac.  766;  Emerson  v. 
Santa  Clara  County,  40  Cal.  543;  Sappen- 
field  V.  Main  Street  etc.  R.  R.  Co.,  91  Cal. 
48;  27  Pac.  590);  and  the  instructions  are 
the  law  of  the  case,  so  far  as  the  jurors 
are  concerned.  Lind  v.  Closs,  88  Cal.  6; 
25  Pac.  972. 

Should  not  be  on  facts.  An  instruction 
on  a  question  of  fact  is  properly  refused 
(Estrella  Vineyard  Co.  v.  Butler,  125  Cal. 
232;  57  Pac.  980);  but  an  instruction  as  to 
"alleged  defects,"  not  constituting  an  in- 
struction on  a  matter  of  fact,  is  not  er- 
roneous (Anderson  v.  Seropian,  147  Cal. 
201;  81  Pac.  521);  and  an  instruction  on 
the  facts  is  not  erroneous,  where  there  is 
no  conflict  in  the  evidence  as  to  the  facts 
referred  to.  Watson  v.  Damon,  54  Cal.  278. 
An  instruction  as  to  the  form  of  a  verdict 
is  not  an  instruction  on  a  matter  of  fact, 
where  no  question  was  raised  either  in  the 
pleadings  or  at  the  trial  as  to  the  exist- 
ence of  such  fact.  Feliz  v.  Feliz,  105  Cal. 
1;  38  Pac.  521.  .Judges  are  prohibited  by 
the  constitution  from  charging  juries  as  to 
the  facts;  hence,  it  is  improper  for  the 
court,  in  its  instructions,  to  select  the 
testimony  of  particular  witnesses  as  en- 
titled to  special  weight  or  consideration. 
Huyck  V.  Rennie,  1.51  Cal.  411;  90  Pac. 
929.  An  instruction  as  to  the  force  or 
effect    of     evidence     on     the     question    of 


655 


INSTRUCTIONS — WHAT    PROPER. 


608 


fraudulent  intent,  whifh  is  mmlo  a  ques- 
tion of  fact,  is  erroneous  (Miller  v.  Stew- 
art, 24  Cal.  502) ;  but  an  instruction,  merely 
stating  the  claim  of  the  jilaintitf  as  to  the 
facts,  and  not  stating^  the  facts  as  being 
jiroved,  does  not  invade  the  province  of 
the  jury  (Jarman  v.  Rea,  137  Cal.  339; 
70  Pac.  216;  Carraher  v.  San  Francisco 
Bridge  Co.,  81  Cal.  98;  22  Pac.  480);  but 
merely  applying  the  law  to  hypothetical 
facts,  and  submitting  to  the  jury  the  ques- 
tion whether  the  facts  hypothetically 
stated  are  true,  is  not  an  instruction  on 
a  question  of  fact.  Baddelev  v.  Shea,  114 
Cal.  1;  55  Am.  St.  Rep.  56;  3:?  ^.  R.  A.  749; 
45  Pac.  990.  An  instruction  stating  facts 
hyiiothetically,  which  are  within  the  issues, 
and  instructing  the  jury  to  find  for  the 
plaintiff  or  for  the  defendant,  according 
as  they  may  find  by  a  prepoiulerauce  of 
evidence,  whether  such  facts  are  proved 
or  not,  does  not  invade  the  province  of 
the  jury  as  to  matters  of  fact.  Rvan  v. 
Los  Angeles  Ice  etc.  Co.,  112  Cal.  244;  32 
L.  R.  A.  524;  44  Pac.  471.  A  statement  in 
an  instruction,  that  the  evidence  tends  to 
prove  a  matter  in  issue,  is  not  erroneous. 
Morris  v.  Lachman,  68  Cal.  109;  8  Pac. 
799;  and  see  People  v.  Vasquez,  49  Cal. 
560;  People  v.  Perry,  65  Cal.  568;  4  Pac. 
572.  An  instruction  taking  from  the  jury 
the  principal  issue  of  fact  in  the  case  is 
erroneous  (Levitzky  v.  Canning,  33  Cal. 
299;  People  v.  King,  27  Cal.  507;  87  Am. 
Dec.  95;  Perkins  v.  Eckert,  55  Cal.  400):  it 
is  only  where  the  fact  is  admitted,  or  there 
is  no  shadow  of  conflict  in  the  evidence 
with  respect  thereto,  that  the  court  is 
justified  in  taking  it  from  the  jury.  Dean 
V.  Ross,  105  Cal.  227;  38  Pac.  912;  People 
V.  Phillips,  70  Cal.  61;  11  Pac.  493.  Ref- 
erence, in  an  instruction,  to  matters  on 
which  there  is  no  evidence,  is  not  errone- 
ous, where  the  instruction  does  not  assume 
the  existence  of  such  fact,  and  the  state- 
ment does  not  tend  to  prejudice  the  de- 
fendant. Bosqui  V.  Sutro  R.  R.  Co.,  131 
Cal.  390;  63  Pac.  682.  An  instruction  as 
to  an  account  stated  between  the  parties 
is  properly  refused,  where  the  plaintiff  did 
not  consent  to  the  account  rendered  by 
the  defendant.  Ah  Tong  v.  Earle  Fruit 
Co.,  112  Cal.  679;  45  Pac.  7.  An  instruc- 
tion, that  if  the  jury  are  satisfied  that 
defendant's  testimony  is  true,  they  shall 
render  a  verdict  in  his  favor,  and  if  not, 
they  shall  find  for  such  damages  as  they 
may  think  proper  to  allow,  leaves  it  sutfi- 
ciently  plain  to  the  jury  that  they  are  the 
exclusive  judges  of  the  facts.  Gately  v. 
Campbell,  124  Cal.  520;  57  Pac.  567;  Jones 
V.  Chalfant,  3  Cal.  Unrep.  585;  31  Pac. 
257.  An  instruction,  that  the  mere  slip- 
ping of  the  wheels  of  a  vehicle  on  a  wet 
street-car  track,  resulting  from  an  attempt 
to  avoid  a  collision,  would  not  conclu- 
sively, or  as  matter  of  law,  repel  the  im- 
putation  of   negligence,   is   not   erroneous, 


where  tlicro  is  evidence  to  sustain  the 
action.  Roche  v.  Rfdiiigton.  125  Tal.  174; 
57  Pac.  890.  The  burden  of  j)roving  con- 
tributory negligence  is  cast  upon  the  de- 
fendant, and  such  negligence  is  a  question 
of  fact  for  the  jury.  Foley  v.  Northern 
California  Power  Co.,  14  Cal.  App.  401;  112 
Pac.  467.  Where  death  resulted  from  at- 
tempting to  remove  a  broken  electrii;  wire, 
in  an  action  for  negligence  the  determina- 
tion of  the  knowledge  of  ilanger  on  the  |>art 
of  the  deceased  is  for  the  jury,  without 
any  direction  from  tfie  court  unfavorable 
to  the  plaintiff.  Foley  v.  Northern  Califor- 
nia Power  Co.,  14  Cal.  App.  4Ul;  112  Pac. 
407.  In  an  action  for  injuries  received 
while  alighting  from  a  train,  an  instruc- 
tion, based  on  the  injured  y)asseiif4er's 
knowledge  of  the  premises,  and  her  as- 
sunij)tion  of  risk  notwithstanding  the  de- 
fenilant's  negligence  in  not  lighting  the 
premises,  is  properly  disallowed.  Teale  v. 
Southern  Pacific  Co.,  20  Cal.  App.  570;  129 
Pac.  949.  It  is  correct  to  instruct  the  jury, 
that  a  servant  assumes  all  of  the  ortlinary 
risks  of  the  business  in  which  he  is  em- 
ployed, but  does  not  assume  the  risk  of 
defective  premises,  machinery,  or  struc- 
tures furnished  by  the  master,  if  the  de- 
fect was  either  known  to  the  master,  or 
could  have  been  discovered  by  the  master 
by  a  reasonably  careful  inspection.  Haves 
V.  Western  Fuel  Co.,  19  Cal.  App.  634;  127 
Pac.  518.  Without  proper  evidence,  it  is 
a  {lalpable  invasion  of  the  province  of  the 
jury  to  ask  a  witness  whether  a  certain 
act  is  within  the  scope  of  an  agent's  au- 
thoritv.  Waniorek  v.  United  Railroads,  17 
Cal.  App.  121;  118  Pac.  947. 

Should  not  comment  on  rights  of  par- 
ties. An  instruction  that  the  j)laintift'  is 
entitled  to  no  sympathy  from  the  jury, 
where  they  were  told  that  the  rights  of  the 
parties  were  to  be  determined  by  the  strict 
rules  of  law,  is  properly  refused.  Parker 
v.  Otis,  130  Cal.  322;  92  Am.  St.  Rep.  56; 
62  Pac.  571,  927. 

May  caution  jury.  It  is-  within  the  dis- 
cretion of  the  court  to  give  an  instruction 
cautioning  against  the  undue  influence  of 
svmpathy.  Si)ear  v.  United  Railroads,  16 
Cal.  AppI  637;  117  Pac.  956. 

May  name  witness.  Mentioning  the 
names  of  witnesses  in  the  instructions  is 
not  prejudicial,  where  there  were  no  others 
than  those  named,  and  their  evidence  was 
not  contradicted.  Dyas  v.  Southern  Pacific 
Co.,  14U  Cal.  296;  73  Pac.  972. 

Must  not  assume  facts  when.  An  in- 
struction assuming  as  true  a  fact,  in  re- 
gard to  which  there  is  no  conflict  in  the 
evidence,  is  not  erroneous  (Watson  v. 
Damon,  54  Cal.  278);  nor  is  an  instruction 
stating  merely  the  law  applicable  to  the 
facts  jiroved,  and  not  taking  from  the  jury 
the  question  as  to  whether  or  not  an  act 
was  done  (Low  v.  Warden.  77  Cal.  94;  19 
Pac.  235);   but  an  instruction  assuming  a 


§608 


CONDUCT   OF  TRIAL  BY  JURY. 


656 


fact,  as  to  ■n'hich  the  evidence  was  con- 
flicting, is  erroneous,  as  invading  the  prov- 
ince of  the  jury  (Preston  v.  Kevs,  23  Cal. 
]93;  Caldwell  v.  Center,  30  Cal.  539;  89 
Am.  Dec.  131;  Crawford  v.  Roberts,  50  Cal. 
235;  Vulicevich  v.  Skinner,  77  Cal.  239;  19 
Pac.  424;  Dean  v.  Ross,  105  Cal.  227;  38 
Pae.  912;  Williams  v.  Casebeer,  126  Cal. 
77;  58  Pac.  380;  Roche  v.  Baldwin,  135 
Cal.  522;  65  Pac.  459;  67  Pac.  903;  Estate 
of  Keegan,  139  Cal.  123;  72  Pac.  828; 
Manning  v.  App  Consol.  Gold  Mining  Co., 
149  Cal.  35;  84  Pac.  657);  as  is  also  an 
instruction  assuming  a  fact  to  be  true,  and 
then  submitting  to  the  .jury  the  question 
whether  or  not  such  fact  is  true  (Cahoon 
V.  Marshall,  25  Cal.  197) ;  and  an  instruc- 
tion assuming  a  fact  favorable  to  a  party 
cannot  be  complained  of  by  him.  Hill  v. 
Finigan,  77  Cal.  267;  11  Am.  St.  Rep.  279; 
19  Pac.  494.  An  instruction  assuming  a 
fact  which  is  not  productive  of  injury  is 
not  erroneous  (Bradley  v.  Lee,  38  Cal. 
362);  nor,  where  there  is  no  conflict  in 
the  evidence  as  to  a  fact,  is  an  instruction 
assuming  such  fact.  Baker  v.  Southern 
California  Ry.  Co.,  106  Cal.  257;  46  Am. 
St.  Rep.  237;  39  Pac.  610.  An  instruction 
involving  an  uncontradicted  fact,  though 
erroneous,  is  not  prejudicial.  Courteney  v. 
Standard  Box  Co.,  16  Cal.  App.  600;  117 
Pac.  778. 

Must  be  applicable  to  the  facts.  Re- 
quested instructions,  inapplicable  to  any 
evidence  adduced  in  the  case,  are  properly 
refused.  Courteney  v.  Standard  Box  Co., 
16  Cal.  App.  600;  117  Pac.  778;  Shaw  v. 
Shaw,  160  Cal.  733;  117  Pac.  1048.  If 
there  is  some  evidence  in  the  case,  upon 
which  an  instruction  relative  to  contribu- 
tory negligence  might  be  based,  it  is  error 
to  refuse  it.  Spear  v.  United  Railroads,  16 
Cal.  App.  637;  117  Pac.  956.  Refusal  to 
give  correct  and  pertinent  instructions 
asked  is  error  (Sukeforth  v.  Lord,  87  Cal. 
399;  25  Pac.  497;  Mabb  v.  Stewart,  133 
Cal.  556);  but  a  refusal  to  give  an  instruc- 
tion, purporting  to  be  a  statement  of  what 
the  plaintifi:  alleged  in  the  complaint,  and 
what  the  defendant  denied,  is  not  error, 
where  such  facts  had  been  correctly  stated 
to  the  jury  by  counsel.  Cody  v.* Market 
Street  Ry.  Co.,  148  Cal.  90;  *82  Pac.  666. 
Instructions  are  sufficient,  if  they  lay 
down  the  correct  rule  of  law  applicable  to 
the  facts  of  the  case  (Peters  v.  Southern 
Pacific  Co.,  160  Cal.  48;  116  Pac.  400; 
Kearney  v.  Bell,  160  Cal.  661;  117  Pac. 
925;  Lonnergan  v.  Stansbury,  164  Cal.  488; 
129  Pac.  770);  but  an  instruction  on  a 
point  not  in  issue  should  not  be  given. 
Branger  v.  Chevalier,  9  Cal.  351;  Conlin  v. 
San  Francisco  etc.  R.  R.  Co.,  36  Cal.  404; 
Marriner  v.  Dennison,  78  Cal.  202;  20  Pac. 
386;  Stevens  v.  San  Francisco  etc.  R.  R. 
Co.,  100  Cal.  554;  35  Pac.  165;  Baker  v. 
Southern  California  Ry.  Co.,  106  Cal.  257; 
46   Am,   St.   Rep.   237;    39   Pac.   610;    Nof- 


singer  v.  Goldman,  122  Cal.  609;  55  Pac. 
425;  Wahlgren  v.  Market  Street  Ry.  Co., 
132  Cal.  656;  62  Pac.  308;  64  Pac.  993; 
Cahill  V.  Baird,  138  Cal.  691;  72  Pac.  342; 
Silva  V.  Pair,  141  Cal.  599;  75  Pac.  162. 
It  is  error  to  refuse  an  instruction  that 
is  a  correct  statement  of  the  law.  and  ap- 
plicable to  the  case  as  presented  by  the 
pleadings  and  the  evidence.  Hart  v.  Buck- 
ley, 164  Cal.  160;  128  Pac.  29.  Each  party 
is  entitled  to  instructions  applicable  to  his 
theory  of  the  case  and  the  testimony  of  his 
witnesses  (Renton  v.  Monnier,  77  Cal.  449; 

19  Pac.  820;  Hunt  v.  Elliott,  77  Cal.  588; 

20  Pac.  132;  Davis  v.  Russell,  52  Cal.  611; 
28  Am.  Rep.  647;  Bueklev  v.  Silverberg, 
113  Cal.  673;  45  Pae.  804;  Eppinger  v.  Ken- 
drick,  114  Cal.  620;  46  Pac.  613;  Waniorek 
V.  United  Railroads,  17  Cal.  App.  121; 
118  Pac.  947) ;  and  the  judgment  will  not 
be  reversed  because  the  evidence  is  in- 
sufficient to  justify  the  verdict  upon  that 
theory,  if.  upon  other  facts,  the  verdict  is 
correct.  Bueklev  v.  Silverberg,  113  Cal. 
673;  45  Pac.  804.  The  refusal  of  instruc- 
tions permitting  the  jury  to  find  for  a 
greater  sum  than  that  demanded  in  the 
complaint  is  proper,  where  an  amend- 
ment of  the  complaint  was  conditionally 
granted,  and  the  plaintiff  refused  to  com- 
plv  with  the  condition.  Wise  v.  Wakefield, 
lis  Cal.  107;  50  Pac.  310. 

Should  cover  issues.  Instructions  should 
not  be  numerous,  and  those  given  should 
be  as  simple  and  plain  as  possible,  and 
cover  the  issues,  so  that  the  jury  may 
fully  understand  them.  Estate  of  Keithley, 
134  Cal.  9;  66  Pac.  5.  In  an  equity  case,  a 
refusal  to  give  instructions  is  not  cause 
for  reversal,  where  the  court  finds  on  all 
the  issues  submitted  to  the  jury.  Hewlett 
V.  Pileher,  85  Cal.  542;  24  Pac.  781;  Riley 
V.  Martinelli,  97  Cal.  575;  33  Am.  St.  Rep. 
209;  21  L.  R.  A.  33;  32  Pac.  579;  and  see 
Branger  v.  Chevalier,  9  Cal.  353. 

Should  be  concrete,  and  not  abstract. 
An  instruction  on  an  abstract  principle, 
as  to  which  there  is  no  evidence,  is  errone- 
ous, as  tending  to  mislead  the  jury.  People 
V.  Jaurez,  28  Cal.  389;  Tompkins  v.  Ma- 
honey,  32  Cal.  231;  Mecham  v.  McKay,  37 
Cal.  154;  Bowers  v.  Cherokee  Bob,  45  Cal. 
495;  Hanks  v.  Naglee,  54  Cal.  51;  35  Am. 
Rep.  67;  Estate  of  Holbert,  57  Cal.  257; 
Comptoir  D'Escompte  v.  Dresbach,  78  Cal. 
15;  20  Pac.  28;  Estate  of  Carpenter,  94  Cal. 
406;  29  Pac.  1101;  Estate  of  Calkins,  112 
Cal.  296;  44  Pac.  577;  Nof singer  v.  Gold- 
man, 122  Cal.  609;  55  Pac.  425;  Tompkins 
V.  Montgomery,  123  Cal.  219;  55  Pac.  997; 
Gately  v.  Campbell,  124  Cal.  520;  57  Pac. 
567;  Thomas  v.  Gates,  126  Cal.  1;  58  Pac. 
315;  Lemasters  v.  Southern  Pacific  Co.,  131 
Cal.  105;  63  Pac.  128;  Cahill  v.  Baird,  138 
Cal.  691;  72  Pac.  342;  Estate  of  Keegan, 
139  Cal.  123;  72  Pac.  828;  Jones  v.  Gold- 
tree,  142  Cal.  383;  77  Pac.  939;  Meyer  v. 
Foster,   147   Cal.   166;   81   Pac.   402;    Ward 


657 


INSTRUCTIONS — WHAT    PROPER. 


|60g 


Land  etc.  Co.  v.  Mapes,  147  Cal.  747;  82 
Pac.  426.  An  instruction  as  to  the  policy 
of  the  law  in  reference  to  any  particular 
question,  is  projierly  refused  (Ward  Land 
etc.  Co.  V.  Mapes,  "l47  Cal.  747;  82  Pac 
426);  as  are  also  instructions  onunciatinsr 
the  doctrine  of  caveat  emptor,  inappli- 
cable to  the  case.  Merguire  v.  O'Donnell, 
103  Cal.  oO;  36  Pac.  1033. 

Should  not  be  argumentative.  Argu- 
mentative instructions  arc  improper  (Mor- 
ris V.  Lachman,  68  Cal.  109;  8  Pac.  799; 
Mabb  V.  Stewart,  133  Cal.  556;  65  Pac. 
1085;  and  see  People  v.  McNamara,  94  Cal. 
509;  29  Pac.  953;  People  v.  Verenescneck- 
ockockhoir.  129  Cal.  497;  58  Pac.  156);  but 
whore  they  are  not  ]irejudicial  to  the  ap- 
pellant's rights,  they  will  not  be  held 
erroneous.  People  v.  Stanton,  106  Cal.  138; 
39  Pac.  525. 

Inconsistent  or  contradictory  instruc- 
tions. Contradictory  and  inconsistent  in- 
structions are  erroneous  (McCreery  v. 
Everding,  44  Cal.  246;  Bank  of  Stockton 
V.  Bliven,  53  Cal.  708;  Harrison  v.  Spring 
Valley  Hydraulic  Gold  Co.,  65  Cal.  376;  4 
Pac.  381;  Haioht  v.  Vallet,  89  Cal.  245; 
23  Am.  St.  Eep.  465;  26  Pac.  897);  and 
cannot  be  harmonized  by  the  declaration 
of  the  court  that  one  instruction  means 
the  same  thing  as  the  other.  Harrison  v. 
Spring  Valley  Hydraulic  Gold  Co.,  65  Cal. 
376;  4  Pac.  381.  Errors  in  giving  instruc- 
tions, and  in  refusing  instructions  which 
correctly  state  the  law,  are  not  cured  by 
contradictory  and  confusing  statements  of 
the  court  in  its  oral  charge.  A^'allens  v. 
Tillman,  103  Cal.  187;  37  Pac.  213.  ■  Error 
in  one  of  two  contradictory  instructions  is 
not  cured  by  the  other  instruction:  it  is 
impossible  to  determine  on  which  instruc- 
tion the  .jury  acted.  Chidester  v.  Con- 
solidated People's  Ditch  Co.,  53  Cal.  56; 
Sappenfield  v.  Main  Street  etc.  E.  R.  Co.,  91 
Cal.  48;  27  Pac.  590.  Where  the  instruc- 
tions on  a  material  point  are  contradictory, 
it  is  impossible  for  the  jury  to  decide 
which  should  prevail,  and  equally  impos- 
sible to  know  that  they  were  not  influenced 
by  the  erroneous  instruction.  Brown  v. 
McAllister,  39  Cal.  573;  Aguirre  v.  Alex- 
ander, 58  Cal.  21;  Sappenfield  v.  Main 
Street  etc.  R.  R.  Co.,  91  Cal.  48;  27  Pac. 
590.  The  fact  that  contradictory  instruc- 
tions were  given  at  the  request  of  the 
appellant  is  not  material.  Wall  v.  Mar- 
shutz,  138  Cal.  522;  71  Pac.  692;  and  see 
Williams  v.  Southern  Pacific  R.  R.  Co.,  110 
Cal.  457;  42  Pac.  974.  Inconsistent  instruc- 
tions that  cannot  mislead  the  jury,  and 
that  are  not  so  contrailictory  but  that  the 
jury  can  know  by  which  instruction  they 
should  be  guided,  do  not  constitute  preju- 
dicial error.  James  v.  E.  G.  Lyons  Co., 
147  Cal.  69;  81  Pac.  275.  An  instruction, 
that  it  is  the  duty  of  the  railroad  company 
to  maintain  sufficient  light  at  its  stations, 
is  not  in  conflict  with  an  instruction  that 
1  Fair. — 42 


it  is  its  duty  to  keep  the  station  properly 
lighted.  Teale  v.  Southern  Pacific  Co.,  2*0 
C.-il.  App.  ."7(1;  12!)  Pa<'.  '.Hi*. 

MLsleading  instructions.  Tt  is  not  error 
to  ri'fuse  an  instruction  which  cannot  aid 
the  jury,  and  wjiich  might  mislead-  them. 
Estrella  Vineyard  Co.  v.  Hutlcr,  125  Cal. 
232;  57  Pac.  980.  The  test  is,  not  whether 
it  is  erroneous,  but  whether  it  is  mislead- 
ing. Briggs  v.  Hall,  2U  Cal.  App.  372;  129 
Pac.  288.  Irrelevant  instructions  are  not 
necessarily  erroneous,  unless  they  tend  to 
mislead  the  jury.  George  v.  Los  .Xngeles 
Rv.  Co.,  126  Cah  357;  77  Am.  St.  Rep.  184; 
46  L.  R.  A.  829;  58  Pac.  819.  A  mislead- 
ing and  erroneous  instruction  is  properly 
refused  (Low  v.  Wanlon,  77  Cal.  94;  19 
Pac.  235);  and  an  instruction  as  to  war- 
ranty, where  the  evidence  shows  a  much 
broader  and  more  particular  warranty,  and 
the  granting  of  it  would  confuse  and  mis- 
lead the  jury  by  diverting  their  attention 
from  the  other  evidence  in  the  case,  is  also 
properly  refused.  Fo.\  v.  Stockton  etc. 
Agricultural  Works,  83  Cal.  333;  23  Pac. 
295.  The  use  of  the  word  "plaintiff,"  in- 
stead of  "decedent,"  in  an  instruction, 
which  could  not  mislead  the  jury,  is  not 
reversible  error  (O'Callaghan  v.  Bode,  84 
Cal.  489;  24  Pac.  269);  neither  is  the  use 
of  the  word  "testimony,"  instead  of  "evi- 
dence." Mann  v.  Higgins,  83  Cal.  66;  23 
Pac.  206. 

Modification  of  instructions.  The  modi- 
fication of  instructions,  so  as  to  state  the 
law  correctly,  is  ]iroiier.  Nichol  v.  Lau- 
meister,  102*  Cal.  658;  36  Pac.  925;  Boyce 
V.  California  Stage  Co.,  25  Cal.  460;  King 
V.  Davis,  34  Cal.  100.  The  modification  of 
an  instruction,  requested  by  the  defendant, 
cannot  be  objected  to  by  him,  where  the 
instruction  itself  is  not  proper  (Harring- 
ton V.  Los  Angeles  Rv.  Co.,  140  Cal.  514; 
98  Am.  St.  Rep.  85;  i63  L.  R.  A.  238;  74 
Pac.  15);  and  the  modification  of  an  in- 
struction, by  striking  out  the  phrase,  "and 
from  your  general  knowledge,"  after  the 
dependent  clause,  "If  you  find  from  the 
evidence,"  is  not  error:  the  jury  take  into 
consideration  their  knowledge,  whether  in- 
structed to  do  so  or  not.  Baker  v,  Borello, 
136  Cal.  160;  68  Pac.  591;  Beveridge  v. 
Lewis,  137  Cal.  619;  92  Am.  St.  Rep.  188; 
59  L.  R.  A.  581;  67  Pac.  1040;  70  Pac. 
1083;  and  see  Cederberg  v.  Robison,  100 
Cal.  93;  34  Pac.  625;  Butler  v.  Ashworth, 
102  Cal.  663;  36  Pac.  922.  It  is  not  ma- 
terial that  the  instruction  given  is  not  in 
as  accurate  and  precise  language  as  that 
asked,  where  it  is  substantially  the  same. 
Kahn  v.  Triest-Rosenberg  Cap  Co.,  139  Cal. 
340;  73  Pac.  164.  An  instruction  which 
could  not  be  given  without  modification  is 
properly  refused.  Garlick  v.  Bowers,  66 
Cal.  122;  4  Pac.  1138. 

Need  not  be  repeated.  An  instruction 
is  jiropcrly  refused,  whore,  so  far  as  it  is 
correct,   it   is   fully    covered   by    other   in- 


S608 


CONDUCT   OF  TRIAL  BY   JURY. 


658 


structions.  Hayes  v.  Western  Fuel  Co.,  19 
Cal.  App.  634;'  127  Pac.  518;  War.l  Land 
etc.  Co.  V.  Mapes,  147  Cal.  747;  82  Pac. 
426;  People  v.  Sampo,  17  Cal.  App.  135; 
118  Pac.  957.  Refusal  to  use  the  precise 
language  of  a  requested  instruction  is  not 
error,  where  the  law  is  substantially  given 
in  the  charge  of  the  court.  Clark  v.  Ben- 
nett, 123  Cal.  275;  55  Pac.  908;  Cook  v. 
Los  Angeles  etc.  Ry.  Co.,  134  Cal.  279; 
66  Pac.  306.  An  error  in  refusing  to  give 
an  instruction  is  cured,  where  the  same 
ground  is  covered  in  an  instruction  subse- 
quently given.  Manning  v.  Dallas,  73  Cal. 
420;  15  Pac.  34.  There  is  no  prejudicial 
error  in  refusing  instructions  that  have 
been  substantially  embodied  in  the  charge 
given,  or  that  have  been  rendered  imma- 
terial by  the  special  findings  of  the  jury 
to  the  contrary,  or  that  call  for  the  errone- 
ous assumption  of  facts.  O'Connell  v. 
United  Railroads,  19  Cal.  App.  36;  124  Pac. 
1022.  Where  part  of  the  instructions 
clearly  informed  the  jury  that  carelessness 
or  unskillfulness  must  have  attended  all 
the  alleged  acts  of  the  defendant  in  order 
to  make  him  liable,  there  is  no  necessity 
of  repeating  this  matter  in  every  part. 
Mervin  v.  Cory,  145  Cal.  573;  79  Pac.  174. 
Failure  to  give  further  or  more  explicit 
instructions  is  not  error,  unless  they  were 
requested,  where  those  given  substantially 
cover  the  particular  point  involved.  Rice 
V.  Whitmore,  74  Cal.  619;  5  Am.  St.  Rep. 
479;  16  Pac.  501;  Nichol  v.  Laumeister, 
102  Cal.  658;  36  Pac.  925. 

Erroneous  instruction  refused.  An  in- 
struction, erroneous  in  part,  is  properly 
refused.  Marriner  v.  Dennison,  78  Cal. 
202;  20  Pac.  386;  Smith  v.  Richmond,  19 
Cal.  476;  Preston  v.  Keys,  23  Cal.  194; 
Williams  v.  Casebeer,  126  Cal.  77;  58  Pac. 
380. 

Must  be  construed  as  a  whole.  Instruc- 
tions must  be  construed  together.  Peters 
V.  Southern  Pacific  Co.,  160  Cal.  48;  116 
Pac.  400;  Kearney  v.  Bell,  160  Cal.  661; 
117  Pac.  925;  Lonnergan  v.  Stansbury,  164 
Cal.  488;  129  Pac.  770.  They  are  to  be 
read  and  taken  as  a  whole;  they  are  not 
necessarily  erroneous  because,  taken  sepa- 
rately, some  of  them  may  fail  to  enun- 
ciate propositions  of  law  in  precise  terms 
and  with  legal  accuracy;  and  they  are  suffi- 
cient if  they  give  the  jury  a  fair  and 
just  notion  of  the  law  upon  the  point  dis- 
cussed (Stephenson  v.  Southern  Pacific  Co., 
102  Cal.  143;  34  Pac.  618;  36  Pac.  407; 
People  V.  McDowell,  64  Cal.  467;  3  Pac. 
124;  People  v.  Turcott,  65  Cal.  126;  3  Pac. 
461;  Davis  v.  Button,  78  Cal.  247;  18 
Pac.  133;  20  Pac.  .545;  People  v.  Lee  Chuck, 
78  Cal.  317;  20  Pac.  719;  Monaghan  v. 
Pacific  Rolling  Mill  Co.,  81  Cal.  190;  22 
Pac.  590;  Murray  v.  White,  82  Cal.  119; 
23  Pac.  35;  Doty  v.  O'Neil,  95  Cal.  244; 
30  Pac.  526;  Hanscom  v.  Drullard,  79  Cal. 
234;    21   Pac.    736;    Nichol    v.   Laumeister, 


102  Cal.  658;  36  Pac.  925;  People  v.  An- 
derson, 105  Cal.  32;  38  Pac.  513);  and  if 
the  law  is  correctly  stated  as  applicable 
to  the  case,  the  jury  will  be  deemed  to 
have  given  full  consideration  to  each  and 
every  proposition  of  law  laid  before  them 
(Feliz  v.  Feliz,  105  Cal.  1;  38  Pac.  521); 
and  a  judgment  will  not  be  reversed,  sim- 
ply because  particular  instructions,  taken 
alone,  may  not  embody  all  the  law  appli- 
cable. Anderson  v.  Seropian,  147  Cal.  201; 
81  Pac.  521;  People  v.  Jackson,  138  Cal. 
462;  71  Pac.  566.  Instructions  which, 
taken  in  connection  with  other  instructions 
given,  could  not  have  misled  the  jury, 
will  not  be  held  erroneous  on  appeal. 
Thomas  v.  Gates,  126  Cal.  1;  58  Pac.  315; 
Wilson  v.  Southern  Pacific  R.  R.  Co.,  62 
Cal.  164.  Where  the  jury,  taking  the  in- 
structions as  a  whole,  must  have  under- 
stood the  words  "safe  and  suitable"  as 
meaning  "reasonably  safe  and  suitable," 
an  instruction  that  an  employer  is  bound 
to  furnish  "safe  and  suitable"  appliances 
is  not  erroneous.  Wall  v.  Marshutz,  138 
Cal.  522;  71  Pac.  692.  The  omission  of 
the  word  "preponderance,"  in  an  instruc- 
tion, in  a  single  instance,  is  not  erroneous, 
where  the  law  relating  to  burden  of  proof 
was  repeatedly  called  to  the  attention  of 
the  jury  (Humphrey  v.  Pope,  1  Cal.  App. 
374;  83  Pac.  223;  People  v.  Morine,  61  Gal. 
372) ;  nor  is  an  instruction  as  to  admis- 
sions in  the  pleadings  erroneous.  Dyas 
v.  Southern  Pacific  Co.,  140  Cal.  296;"  73 
Pac.  972.  Where  a  party  asks  an  instruc- 
tion on  an  abstract  proposition,  he  must 
take  the  risk  of  its  being  correct  in  all 
its  parts;  and  where  there  is  no  testimony 
as  to  part  of  the  facts  on  which  the  in- 
struction was  predicated,  its  refusal  is  not 
error.  Thompson  v.  Paige,  16  Cal.  77. 
Where  all  the  instructions,  taken  together, 
correctly  give  the  law  on  the  subject,  a 
party  objecting  is  not  prejudiced  by  a 
verbose  instruction.  Estate  of  Black,  132 
Cal.  392;  64  Pac.  695. 

When  court  may  direct  verdict.  Where 
there  is  no  conflict  in  the  evidence,  the 
court  may  properly  direct  a  verdict  (Mar- 
tin V.  Ward,  69."Cal.  129;  10  Pac.  276; 
Chenery  v.  Palmer,  6  Cal.  122;  65  Am.  Dec. 
493;  Page  v.  Tucker,  54  Cal.  121);  other- 
wise it  can  instruct  only  as  to  the  law. 
Estate  of  Everts,  163  Cal.  449;  125  Pac. 
1058.  The  direction  of  a  verdict  is  justi- 
fied, not  merely  where  there  is  no  conflict 
in  the  evidence,  but  also  where  the  evi- 
dence is  such  that  it  is  clearly  insufficient 
to  support  a  verdict  in  favor  of  the  party 
against  whom  the  direction  is  given,  un- 
less the  circumstances  of  the  case  indicate 
that  upon  another  trial  the  evidence  may 
be   materially   different.    Lacey   v.   Porter, 

103  Cal.  597;'  37  Pac.  635.  It  is  proper  for 
the  court,  after  Lhe  plaintiff's  evidence  is 
closed,  to  direct  a  verdict  for  the  defend- 
ant, where  the  evidence  would  be  insuffi- 


659 


INSTRUCTIONS — WHAT    PROPER. 


608 


cient  to  sustain  a  verdict  for  the  plaintiff, 
if  found.  ('hani[)ion  Golii  Mininj^  Co.  v. 
Champion  Mines,  1(54  Cal.  20.');  12S  Pac. 
315.  The  correctness  of  the  dire(;tion  of  a 
verdict  dejicnds  on  whether  there  is  any 
•evidence  \vhi<'h  would  authorize  a  different 
verdict;  and  if  there  is  any  conflict  in  the 
evidence,  or  if  different  inferences  of  fact 
may  be  drawn  from  the  evidence,  it  is  the 
function  of  the  jury  to  determine  the 
issue;  but  if,  upon  all  the  evidence,  only 
one  conclusion  or  finding  can  be  made,  it 
is  immaterial  whether  the  .jury  make  that 
conclusion  or  finding  by  direction  of  the 
court  or  upon  their  own  deliberation.  Los 
Angeles  Farming  etc.  Co.  v.  Thomjison,  117 
Cal.  594;  49  Pac.  714;  and  see  Levitzky  v. 
Canning,  33  Cal.  299;  O'Connor  v.  With- 
€rby.  111  Cal.  523;  44  Pac.  227;  Wilson  v. 
Alcatraz  Asphalt  Co.,  142  Cal.  182;  75 
Pac.  787.  An  instruction,  that  if  the  jury 
think  there  is  some  evidence  in  favor  of 
the  plaintiff's  side  of  the  case,  whether 
little  or  great,  it  is  their  duty  to  find  in 
his  favor,  is  not  proper  in  any  conceivable 
case.  Bunting  v.  Saltz,  84  'Cal.  16S;  24 
Pac.  167.  An  instruction  asking  for  a 
verdict  on  one  matter,  and  entirely  ignor- 
ing other  consi<lerations  and  facts  in  the 
case,  is  properly  refused.  Anderson  v. 
Seropian,  147  Cal.  204;  81  Pac.  521.  An 
instruction  directing  the  jury  to  find  for 
the  plaintiff,  without  considering  the  de- 
fense of  the  statute  of  limitations  set  up 
in  the  answer,  and  to  support  which  evi- 
dence was'  introduced,  is  erroneous  (Heil- 
bron  V.  Heinlen,  72  Cal.  371;  14  Pac.  22); 
as  is  also  an  instruction  authorizing  the 
jury  to  find  a  verdict  for  less  than  the 
amount  as  fixed  bv  the  admissions  in  the 
pleadings.  Sukeforth  v.  Lord,  87  Cal.  399; 
26  Pac.  497.  An  instruction  to  the  jury, 
that  the  admitted  facts  shall  be  taken 
by  them  as  true,  and  that  they  shall  so 
find  for  the  plaintiff,  is  not  an  instruction 
to  find  in  favor  of  the  plaintiff,  except  as 
to  the  facts  so  admitted.  Blood  v.  Light, 
31  Cal.  115. 

Proper  subjects  of  instructions  to  jury  and  to 
•what  extent  judge  may  comment  on  evidence.  See 
note  72   Am.   Dec.  538. 

Instructions  invading  province  of  jury.  See 
note   14   .\m.   St.   Kep.   36. 

Urging  or  coercing  verdict.  See  notes  105  Am. 
St.  Rep.  56G:  11  Ann.  Cas.  1131;  Ann.  Cas. 
1912]),    440;    Ifi    L.    K.    .\.    r.43. 

Propriety  of  instruction  referring  jury  to  plead- 
ings to  determine  issues.  See  note  .Vnn.  Cas. 
1912C.  227. 

Effect  of  request  by  both  parties  for  direction 
of  verdict.    See  note  Ann.  Cas.   1913C,   1342. 

CODE  COMMISSIONERS'  NOTE.  1.  Instruc- 
tions upon  abstract  propositions.  If  the  court  re- 
fuse to  instruct  the  jury  upon  a  point  in  relation 
to  which  there  is  no  evidence,  it  is  not  error. 
Tompkins  v.  Mahoney,  32  Cal.  231  ;  Conlin  v.  San 
Francisco  etc.  II.  R.  Co.,  36  Cal.  404;  Mecham 
V.  McKay,  37  Cal.  155.  An  instruction  may 
be  sound  as  an  abstract  proposition  of  law, 
yet  have  no  application  to  the  facts  of  the  case, 
ss  disclosed  by  the  evidence.  (n  such  nn  event 
the  court  may,  and  properly  should,  refuse  the 
instruction.  No  instruction  should  ever  be  given, 
unless  there  is  gome  evidence  before  the  jury  to 


which  it  is  applicable  upon  some  rational  thei>rj 
of  the  case  loKicnlly  deducibla  from  such  evi- 
dence. People  v  Ue.st,  39  <'ul.  091;  I'eople  v. 
McCauIey,  1  Cal.  3«5;  People  v.  Kuberts  0  Cal. 
217;  People  v.  Arnold,  15  Cal.  4«2;  People  v. 
Sanchez,  24  Cal.  28;  People  v.  King,  27  Cal. 
514;  87  Am.  Dec.  95;  People  v.  Burns.  30  Cal. 
207;  People  v.  Williams,  32  Cal.  284;  Fair- 
child  V.  Culiforniu  Stase  Co.,  13  Cal.  599  ;  Thomp- 
son v.  Paige,  16  Cal.  77;  Fowler  v.  Smith,  2  Cal. 
39;  Uenham  v.  Howe,  2  Cal.  387;  56  .Aiii.  Dec. 
342;  Uranger  v.  Chevalier,  9  Cal.  353.  Where 
no  question  of  jurisdiction  of  the  court  over  the 
action  is  raised  by  the  pleudiuKs,  it  is  error  to 
instruct  the  jury,  "that,  if  they  helieve  a  certain 
fact,  they  must  find  for  the  defendant,  as  the 
existence  of  that  fact  will  establish  a  want  of 
jurisdiction  over  the  case,"  because,  upon  the 
pleadiiiKS,  such  a  verdict  would  bar  another  ac- 
tion, if  rendered  against  plaint  itT  in  pursuance 
of  such  an  instruction.  Fairbanks  v.  Woodhouse, 
6  Cal.  433.  It  is  not  error  to  refuse  an  instruc- 
tion not  warranted  by  the  pleadings  (Thompson 
V.  Lee,  H  Cal.  275);  nor  when  there  is  no  evi- 
dence on  the  question  of  fact  embraced  in  the 
instruction  (People  v.  Hurley,  8  Cal.  390);  nor 
when  there  is  only  such  evidence  as  is  plainly  in- 
sufficient to  establish  it  (Selden  v.  Cashman.  20 
Cal.  5(5;  81  Am.  Dec.  93):  nor  which  assumes  a 
fact  to  e.xist  respecting  which  evidence  has  been 
introduced  (Preston  v.  Keys,  23  Cal.  193);  nor 
which  embraces  a  question  which  comes  properly 
before  the  court,  and  not  before  the  jury  (Rranger 
V.  Chevalier,  9  Cal.  353):  nor  when  an  instruc- 
tion is  erroneous  on  its  face,  even  though  the 
error  would  be  insufficient  to  reverse  the  judg- 
ment.   Vislier  v,   Webster.   13   Cal.   58. 

2.  Instructions  upon  questions  of  fact.  The 
jury  are  the  judges  of  the  lact.s.  and  it  is  error 
for  the  court  to  assume,  in  its  instructions  to  the 
jury,  that  a  certain  fact  exists,  and  then  submit 
to  them  the  question  whether  or  not  it  does 
exist.  Cahoon  v.  Marshall,  25  Cal.  198;  Cald- 
well V.  Center,  30  Cal.  539:  89  Am.  Dec.  131. 
If  the  court,  in  an  instruction,  assumes  the  exist- 
ence of  a  fact,  (and  the  assumption  in  the  con- 
dition of  the  case  could  not  be  productive  of 
injury),  the  judgment,  for  this  reason,  will  not 
be  reversed.  Bradley  v.  Lee.  38  Cal,  360.  The 
right  to  "state  the  testimony"  does  not  authorize 
an  expression  of  opinion  by  the  court.  Seligman 
V.  Kalkman,  8  Cal.  216;  Battersby  v.  Abbott.  9 
Cal.  565;  Pico  v,  Stevens,  18  Cal.  376:  People 
V.  Dick,  32  Cal.  213;  Treadwell  v.  Wells  Fargo 
&  Co.,  4  Cal.  260.  But  if  the  answer  admits  the 
facts  stated  in  the  complaint,  the  court  may  di- 
rect the  jury  to  find  for  plaintiff.  Kuhland  v. 
Sedgwick,  17  Cal.  123;  Blood  v.  Light.  31  Cal. 
115. 

3.  What  should  not  be  left  to  jury.  It  is  error 
for  the  court  to  submit  to  a  jury  the  question  of 
the  legal  etTect  of  written  documents  in  evi- 
dence. Carpentier  v.  Thirston,  24  Cal.  268; 
Luckhart  v.  Ogden,  30  Cal.  548.  If  a  contract 
is  to  be  performed  within  a  reasonable  time,  the 
question,  "What  is  a  reasonable  time?"  is  one 
of  law,  and  must  be  determined  by  the  court. 
Luckhart    v.   Ogden,    :!0   Cal.    548. 

i.  Conflicting  instructions.  Where  instructions 
on  a  material  point  are  contradictory,  it  is  im- 
possible for  the  jury  to  decide  which  should  pre- 
vail, and  it  is  equally  impossible,  after  the  ver- 
dict, to  know  that  the  jury  was  not  intiuenced 
by  that  instruction  which  was  erroneous,  as  the 
one  or  the  other  must  necessarily  be,  where  the 
two  are  repugnant.  In  every  such  case  the  ver- 
dict must  be  set  aside.  Brown  v.  McAllister,  39 
Cal.  577;  Clark  v.  McElvv,  11  Cal.  161;  Yonge 
v.  Pacific  Mail  S.  S.  Co.,  1  Cal.  354:  People  v. 
Campbell.  30  Cal.  312.  It  seldom  occurs  that  a 
single  instruction,  given  for  the  purpose  of  pre- 
senting the  law  upon  a  point  arising  upon  more 
than  one  fact,  contains  all  the  qualifications  and 
provisos  that  would  be  necessary  if  no  other 
instructions  were  given;  but  it  is  always  in- 
tended that  such  instruction  shall  be  read  to- 
gether with  the  other  instructions  upon  the  same 
point,  or  those  involving  a  consideration  of  the 
same  facts.  Bradley  v.  Lee.  :i8  Cal.  365.  In- 
structions will  be  construed  with  reference  to 
the  evidence.  Brumagim  v.  Bradshaw.  39  Ca.. 
24. 


§608 


CONDUCT   OF  TRIAL   BY   JURY. 


660 


5.  Instiuctions  substantially  given.  If  the 
court  has  already  properly  instructed  the  jury 
upon  a  given  point,  it  is  not  error  to  refuse 
another  instruction  upon  the  same  point.  Belden 
V.  Henriques,  8  Cal.  87;  Davis  v.  Perley,  30  Cal. 
630;  People  v.  King,  27  Cal.  5U9,  87  Am.  Dec. 
35;  People  v.  \Vil!iams,  32  Cal.  280.  But  the 
reasons  for  the  refusal  should  be  stated,  so  that 
the  jurv  mav  not  be  misled.  People  v.  Ramirez, 
13   Cal."  172:"  People  v.   Hurley,   8   Cal.   390. 

6.  Instructions  substantially  correct.  If  the 
instructions,  taken  as  a  whole,  fairly  submit  the 
case  to  the  jury,  the  verdict  will  not  be  disturbed 
because  some  instructions  were  refused  which 
could  properly  have  been  given,  or  that  some  of 
those  given  are  subject  to  verbal  criticism. 
BrooiiS  V.   Crosby,   22   Cal.   42. 

7.  Time  at  which  instructions  are  requested. 
A  rule  of  court  which  requires  counsel  to  file 
and  submit  to  the  court  any  instructions  they 
may  offer,  before  the  argument  is  closed,  does 
not  operate  where  the  cause  is  submitted  without 
argument.  Tinney  v.  Eudicott,  5  Cal.  102.  If 
there  is  a  rule  of  court  requiring  instructions  to 
be  handed  to  the  judge  by  a  certain  time  in  the 
progress  of  the  trial,  it  is  not  error  to  refuse  to 
give  instructions  not  handed  to  the  judge  in 
time.    Waldic  v.  Doll,   29   Cal.   556. 

8.  Instructions  in  particular  actions.  Account 
stated.  In  an  action  on  an  account  stated,  where 
the  only  evidence  was  that  of  a  witness,  who 
testified  that  defendant,  on  presentation  of  the 
account,  admitted  it  to  be  correct,  and  promised 
to  pay  it,  and  the  court  charged  the  jury  that, 
if  they  believed  the  testimony  of  the  witness, 
they  must  find  for  the  plaintiff  the  amount 
claimed,  and  they  so  found,  it  was  held,  that  the 
instruction  did  not  prejudice  defendant,  as  but 
one  verdict  could  have  Vjeen  rendered  under  the 
evidence.    Terry  v.   Sickles,   13   Cal.   427. 

By  or  against  administrators.  In  an  action  by 
an  administrator  against  defendant,  for  conver- 
sion of  the  property  of-the  estate,  under  §  116  of 
the  statute  to  regulate  the  settlement  of  estates, 
the  proof,  as  to  the  right  or  title  or  possession 
of  plaintiff,  and  the  taking  or  interference  by 
defendant,  being  conflicting,  it  is  error  to  in- 
struct the  jury  that  a  mere  demand  on  the  de- 
fendant, and  refusal  by  him  to  surrender  the 
property,  is  sufficient  to  charge  him  with  a  con- 
version. Beckman  v.  McKay.  14  Cal.  250.  In 
an  action  against  .  an  administrator,  the  court 
must,  if  requested,  charge  the  jury  as  to  the 
statute  time  within  which  the  action  could  be 
broueht  when  the  claim  is  rejected.  Benedict  v. 
Hoegin.  2   Cal.   385. 

Contract.  In  an  action  on  a  contract  of  sale 
of  cattle,  to  be  delivered  within  "three  weeks, 
at  the  furthest,"  the  consideration-money  being 
paid,  complaint,  with  the  common  counts,  averred 
the  breach  of  the  agreement  by  failure  to  de- 
liver the  cattle.  It  was  held,  that  it  was  not 
error  in  the  court  below  instructing  the  jury, 
that  if  defendant  did  not  have  the  cattle  ready 
for  delivery  at  the  time  mentioned  in  the  con- 
tract, they  should  find  for  plaintiff;  and  in 
assessing  damages,  they  might  find  the  purchase- 
money,  with  ten  per  cent  interest,  or  the  highest 
market  price  of  the  cattle  to  the  time  of  trial. 
Maher  v.  Riley,  17  Cal,  415.  Where  the  vendee 
of  goods  is  to  pay  a  part  of  the  purchase-money 
to  the  creditors  of  his  vendor,  this  creates  no 
trust  in  goods  sold  in  favor  of  such  creditors; 
for  this  reason,  in  an  action  to  recover  such 
goods,  the  following  instruction  to  the  jury  is 
improper:  "If  the  jury  believe  from  the  testi- 
mony that  the  agreement  between  Stevens  and 
Markling,  the  vendors  of  the  plaintiff,  was  that 
the  plaintiff  was  to  pay  certain  of  the  debts  of 
his  vendors  out  of  said  goods,  then  that  such 
sale,  as  against  the  other  creditors  of  the  ven- 
dors, is  fraudulent."  Wellington  v.  Sedgwick,  12 
Cal.  469.  Where  defendants  were  sued  as  fac- 
tors, and  no  claims  for  commissions,  etc.,  were 
set  out  as  a  counterclaim,  it  was  held  error  for 
the  court  to  instruct  the  jury  that  it  was  for 
them  exclusively  to  say  what  amount  the  plain- 
tiff was  entitled  to  recover,  and  that  thf  de- 
fendants were  liable  for  the  value  of  the  goods 
Bt  the  time  of  demand.  Lubert  v.  Chauviteau.  3 
Cal.  463;  58  Am.  Dec.  415.  In  an  action  on 
guaranty,    it    is    error,    in    terms,    to    charge    the 


jury  if  they  find  for  the  plaintiff,  to  assess  as 
damages  the  amount  of  the  penalty  fixed  in  the 
guaranty,  yet  if  the  plaintift"s  damages,  if  any, 
must,  in  any  event,  exceed  the  penalty,  the  di- 
rection must  be  regarded  as  limiting  the  verdict, 
and  the  defendant  is  not  injured  by  the  instruc- 
tion.   Jones  V.  Post,  6  Cal.   102. 

Ejectment.  In  ejectment  for  land  claimed  as- 
a  homestead,  where  the  husband  alone  had  exe- 
cuted a  deed  to  defendant,  there  was  evidence 
tending  to  show  that  the  premises  were  never 
occupied  by  plaintiffs  with  the  intention  of  mak- 
ing them  the  homestead,  and  also  evidence  tend- 
ing to  prove  an  abandonment  of  their  occupancy, 
and  a  residence  on  other  property  as  that  of  the 
family.  The  court  below  submitted  a  series  oT 
questions  to  the  jury  for  a  special  verdict,  the 
first  of  which  was:  "Did  the  plaintiffs  ever 
dedicate  and  set  apart  the  real  estate  described 
in  the  complaint  as  a  homestead,  by  living  upon. 
it  with  the  intention  to  so  dedicate  it?"  and 
told  the  jury  if  they  answered  this  question  in  the 
negative,  the  answer  would  constitute  their  en- 
tire verdict:  but  if  they  found  in  the  affirmative, 
they  should  then  proceed  to  answer  the  other 
questions.  On  appeal,  it  was  held  that  such  di- 
rection was  proper,  as  a  negative  answer  to  this, 
question  was  conclusive  against  a  recovery,  and 
that  such  directions  are  convenient  in  practice,, 
and  no  abuse  of  discretion.  Broadus  v.  Nelson, 
16  Cal.  79»  Where  plaintiff  asked  tlie  court  to 
instruct  the  jury,  "that  lapse  of  time  does  not 
constitute  an  abandonment,  but  that  it  consists- 
in  a  voluntary  surrender  and  giving  up  of  the 
thing  by  the  owner,  because  he  no  longer  desires, 
to  possess  it,  or  thereafter  to  assert  any  right 
or  dominion  over  it';  and  the  instruction  was 
given  with  the  qualification  that  lapse  of  time- 
constitutes  the  material  element  in  the  question 
of  abandonment.  It  was  held  that,  though  it 
would  be  more  exact  to  say  that  lapse  of  time 
constitutes  a  material  element  to  be  considered, 
in  deciding  the  question  of  abandonment,  but 
that  the  instruction  given  and  the  qualification 
are,  taken  in  connection,  the  same  in  effect, 
Lawrence  v.  Fulton,  19  Cal.  683.  The  court 
having  admitted  in  evidence,  as  sufficiently  proven. 
the  mesne  conveyances  through  which  plaintifiT 
traced  title,  the  defendants  being  mere  tres- 
passers, charged  the  jury  "that  the  written  evi- 
dence of  title,  together  with  the  admissions  of 
the  parties,  authorized  them  to  find  for  the  plain- 
tiff, since  the  execution  of  the  papers  had  been. 
passed  upon  by  the  court."  It  was  held,  that  it 
was  no  objection  to  this  instruction,  that  it  did. 
not  leave  the  execution  and  delivery  of  the  con- 
veyances to  the  jury;  that  the  sufficiency  of 
their  execution  was  a  matter  addressed  solely  to 
the  court,  and  that,  no  question  being  raised 
during  the  trial  as  to  their  delivery,  and  no  evi- 
dence being  offered  to  rebut  the  presumption  of 
delivery  arising  from  their  possession  by  plain- 
tiff, the  instruction  amounted  only  to  an  an- 
nouncement of  the  law  as  to  the  effect  of  the- 
conveyances  and  of  the  admissions  of  the  de- 
fendants.    Stark  V.  Barrett,   15   Cal.   361. 

It  is  error  for  the  court  to  instruct  the  jury, 
that  plaintiff  cannot  recover,  unless  from  the  evi- 
dence the  jury  can  specifically  fix  and  establish 
the  eastern  boundary  line  of  the  grant  under 
which  plaintiff  claimed,  when  it  appears  from  the- 
evidence  that  the  land  in  controversy  is  within 
that  boundary  line.  Seaward  v.  Malotte,  15  Cal. 
307.  Where  the  defendants  deny  the  title  of 
plaintiff,  and  set  up  ownership  in  themselves,  it 
is  not  error  to  instruct  the  jury  that  the  onlr 
question  for  them  to  determine  is  as  to  who  has 
the  better  right  to  the  premises.  Such  instruc- 
tion does  not  imply  that  plaintiffs  can  recover, 
even  if  they  do  not  establish,  prima  facie,  a  title. 
Busenius  v.  Coffee,  14  Cal.  91.  In  ejectment, 
where  the  title  is  of  record  and  wholly  docu- 
mentary, the  clerk  may  declare  the  effect  of  the 
papers  given  in  evidence.  McGarvey  v.  Little,  15 
Cal.  27.  In  an  action  for  a  portion  of  a  tract  of 
land,  both  parties  relying  on  possession,  and  the 
defendant  proving  a  prior  possession  by  actual 
inclosure  of  the  entire  tract,  held,  it  was  error 
to  instruct  the  jury  that  the  defendant's  posses- 
sion was  not  valid,  unless  in  conformity  with  the 
pre-emption  laws  of  the  United  States,  or  the- 
possessory  laws  of  this  state.    Bradshaw  v.  Treat 


<861 


INSTRUCTIONS — WUAT    PROPER. 


§608 


■6  Cal.  172.  When  !\  private  survey  is  admiticil 
as  a  diaKram,  but  mil  us  evidence,  it  is  the  duty 
of  the  court  to  clearly  explain  to  the  jury  the 
purpose  and  effect  of  its  admission.  Kose  v. 
Davis,  11  Cal.  133.  An  instruction  that  they 
must  take  the  grant  and  map  toeelher,  and  if 
they  believe  the  land  in  controversy  within  the 
Kra'nt,  as  explained  hy  the  map,  they  will  find 
for  the  plaintiff.  Held  to  be  correct.  Ferris  v. 
Coovcr,   10  Cal.  589. 

Fraud.  In  an  action  where  one  of  the  issues 
raised  is  a  (luestion  of  fraudulent  intent  in  the 
sale  or  disposition  of  property,  the  fraudulent  in- 
tent is  a  question  of  fact  alone,  to  be  left  solely 
to  the  determination  of  the  jury,  and  in  such 
■cases  it  is  error  for  the  court  to  instruct  the  jury 
as  to  the  effect  or  force  of  the  evidence  ujjon 
that  iiuestion;  or  to  instruct  a  jury  that  if  they 
have  a  doubt  of  the  euilt  of  the  party  charged 
■with  the  fraud  they  must  find  in  his  favor.  Is- 
sues of  fact  in  civil  cases  are  determined  by  a 
preponderance  of  testimony,  and  this  rule  ap- 
plies as  well  to  cases  of  fraud  as  to  any  other. 
Ford  V.  Chambers,  19  Cal.  143.  Upon  the  issue 
of  fraud,  in  an  application  of  an  insolvent  to  be 
discharged  from  his  debts,  where  it  was  alleged 
that  the  applicant  had  made  and  recorded  a  sham 
deed  of  his  property  before  his  application,  and 
had  omitted  the  deed  from  his  schedule.  Held, 
that  it  was  error  to  instruct  the  jury,  "that,  to 
find  the  charge  of  fraud  sustained,  they  must  be- 
lieve the  deed  made  with  the  intent  to  defeat, 
hinder,  or  delay  creditors,  to  have  been  actually 
delivered  to  the  grantees;  that  proof  of  record 
was  no  proof  of  delivery,"  etc.,  the  fraud  being 
as  complete  without  the  delivery  as  with  it.  Pisk 
V.  His  Creditors,  12  Cal.  281.  If  there  is  no 
dispute  as  to  the  facts,  and  the  law  declares  a 
transaction  fraudulent,  it  is  not  a  question  for 
the  jury.  The  court  in  such  case  may  direct  the 
.jury  how  to  find,  or  set  aside  the  verdict  if  they 
find  to  the  contrary.  Chenery  v.  Palmer.  6  Cal. 
119;  6.5  Am.  Dec.  49.1;  McDaniel  v.  Baca,  2 
Ca!.   326;    r,6  Am.   Dec.    339. 

Malpractice.  In  an  action  against  surgeons 
"for  malpractice,  by  which  amputation  became 
necessary."  the  court  charged  the  jury  "that  if 
they  believed  from  the  evidence  that  the  defend- 
ants were  guilty  of  negligence,  carelessness,  or 
■inattention  "  in  their  treatment  of  plaintiff's 
wounds,  by  which  he  was  caused  great  bodily 
•pain  and  suffering,  the  plaintiff  was  entitled  to  a 
"verdict."  The  instruction  was  held  erroneous,  be- 
cause the  action  was  not  founded  upon  "bodily 
pain   or   suffering."     Moor  v.  Teed,   3   Cal.   190. 

Mining  claims.  In  an  action  for  a  mining  claim, 
where  the  <lefense  is  an  abandonment  of  the  claim 
by  the  plaintiff,  the  judgment  roll  in  action  l)rought 
by  the  plaintiff  against  third  parties  to  recover 
possession  of  the  same  ground,  and  in  which 
plaintiff  recovered  judgment,  is  admissible  in 
evidence  to  rebut  the  presumption  of  abandon- 
ment; but  the  court  should  guard  the  jury  by 
proper  instructions  from  giving  the  judgment  any 
•weight  as  evidence,  except  upon  the  question  of 
abandonment.  Richardson  v.  McXulty,  24  Cal. 
339.  In  an  action  for  a  mining  claim  the  de- 
fendants asked  the  court  to  instruct  the  jury, 
"that  if  the  plaintiff  had  abandoned  the  claim, 
and  did  not  intend  to  return  and  work  it  before 
the  commencement  of  the  suit,"  and  the  court 
gave  the  instruction,  "subject  to  the  seventeenth 
section  of  the  statute  of  limitations."  it  was  held, 
that  the  qualification  to  the  instruction  was  er- 
ror. Davis  V.  Butler,  6  Cal.  .510.  Where  the 
court  instructed  the  jury,  that  "where  an  aban- 
donment is  sought  to  be  established  by  the  act 
of  the  party,  the  intention  not  to  return,  his 
abandonment  is  as  complete,  if  it  exist  for  a 
minute  or  a  second,  as  though  it  continued  for 
years;  but  if  he  left  with  the  intention  of  return- 
ing, he  might  do  so  at  any  time  within  five  years, 
■provided  tliere  was  no  rule,  usage,  or  custom  of 
miners  of  such  a  notorious  character  as  to  raise 
a  presumption  of  an  intention  to  abandon."  Held, 
that  the  question  of  abandonment  was  fairly  left 
to  the  jury.  Waring  v.  Crow.  11  Cal.  366;  see 
■also  Richardson  v.  McNulty.  24  Cal.  339.  In 
suit  for  damages  for  injuries  upon  mining  claims. 
«nd  for  perpetual  injunction,  etc..  held,  that  it 
"w-aa  error  for  the  court  below  to  charge   the  jury 


that  if  they  believed  no  injury  or  damaKe  was 
done  by  defendant*  to  plaintiffs,  they  would  find 
for  defendants;  that  such  charge  was  calculated 
to  mislead,  inasmuch  as  I  hi'  law  presumes  dam- 
ages from  a  trespass,  and  under  the  charge  the 
jury  might  have  decided  the  case  upon  this  want 
of  proof  of  plaintiff's  damages,  instead  of  ab- 
sence of  proof  of  their  title.  Attwood  v.  Fricot, 
17   Cal.    37;    76   Am.    Dec.   567. 

Mortgage.  Where  the  complaint  did  not  charge 
the  morlgat'ce  in  possession  with  negligence  or 
improper  conduct  in  leasing  the  premises,  but 
only  demanded  an  account  for  the  rents  he  ac- 
tually received,  it  is  proper  in  the  court  to  refuse 
to  instruct  the  jury  thai  he  might  have  leased 
the  j)roperty  differently,  and  to  charge  hira  with 
what  he  might  have  received,  if  so  leased.  Ben- 
ham  V.   Rowe,   2   Cal.  387;   56  Am.  Dec.   342. 

Partnership.  It  is  not  error  to  instruct  a  jury, 
that,  if  suflicient  time  elapses  between  the  deal- 
ings of  the  plaintiffs  with  the  old  firm,  and  their 
subsequent  transactions  with  the  new  firm,  to  put 
a  reasonable  man  on  inquiry,  they  might  be 
treated  as  new  dealers.  Treadwell  v.  Wells,  4  Cal. 
260. 

Slander  of  title.  An  instruction,  "that  where 
a  person  injuriously  slanders  tue  title  of  another, 
malice  is  presumed,"  is  erroneous.  It  is  also 
error  to  instruct  that  fraud  cannot  be  presumed, 
but  must  be  established  by  circivnstanees,  not  of 
a  light  character,  but  of  a  most  conclusive  nature. 
McDaniel  v.   Baca,  2   Cal.  326;   56  Am.  Dec.   339. 

Trespass  on  the  case.  In  an  action  for  in- 
juries to  a  garden,  caused  by  the  breaking  of  a 
reservoir,  the  court  instructed  the  jury,  that  to 
entitle  plaintiff  to  recover,  it  must  appear  that 
the  breaking  of  the  reservoir  resulted  from  the 
gross  negligence  of  defendants;  and  then  pro- 
ceeded to  explain  that  defendants  must  have  taken 
the  same  care  of  their  reservoir,  and  of  the  water 
in  it,  as  they  would  have  done,  being  prudent 
men,  had  the  garden  of  plaintilf  been  their  prop- 
erty; and  that  otherwise,  they  had  been  guilty 
of  gross  negligence,  and  ■were  liable  in  damages. 
Held,  that,  although  the  instructions,  without  the 
explanation,  was  wrong,  still,  with  the  explana- 
tion, it  was  right,  and  could  not  have  misled  the 
jury.    Todd  v.  Cochell.   17  Cal.  97. 

Use  and  occupation.  In  an  action  for  use  and 
occupation,  the  court  was  requested  to  instruct  the 
jury,  "that  it  was  necessary,  to  enable  the  plain- 
tiff to  recover,  that  he  should  show  that  the  de- 
fendant used  and  occupied  the  premises  by  the 
permission  of  the  plaintiff,  and  if  the  jury  be- 
lieved the  defendant  used  and  occupied  the  same 
against  the  will  of  the  plaintiff,  that  they  must 
find  a  verdict  for  the  defendant."  The  court  re- 
fused to  so  instruct.  Held,  that,  in  this,  the 
court  erred.     Sampson  v.  Shaeffer,  3  Cal.  196. 

Water.  In  an  action  for  diverting  ■water  from 
plaintiff's  ditch,  plaintiff  and  ■  defendants  both 
having  ditches  supplied  from  the  same  stream, 
the  plaintiff's  rights  being  prior  and  paramount, 
the  defendants  requested  the  court  to  instruct  the 
jury,  that  if  defendants  had  brought  water  from 
foreign  sources  and  emptied  it  into  the  stream, 
with  the  intention  of  taking  it  out  again,  they 
had  the  right  to  divert  the  quantity  thus  emptied 
in,  less  such  an  amount  as  might  be  lost  by 
evaporation  and  other  like  causes.  The  instruc- 
tion was  given  with  the  explanation  that  they 
could  not  so  reclaim  the  water  as  to  diminish 
the  quantity  to  which  plaintiff  was  entitled  as 
prior  locator.  Held,  that  the  instruction,  as  ex- 
plained, was  proper.  Burnett  v.  Whitesides.  15 
Cal.  35.  In  an  action  for  diverting  water  from 
the  plaintiff's  ditch,  and  where  both  parties 
claimed,  in  part,  the  waters  of  the  same  stream, 
the  court  instructed  the  jury  "that  defendant 
is  not  liable  for  any  deficiency  of  water  in  plain- 
tift"'s  ditch,  unless  he  w'as  diverting  from  Rab- 
bitt's  Creek  more  water  than  he  was  entitled  to 
at  the  precise  time  that  such  deficiency  existed." 
Held,  a  correct  instruction.  Brown  v.  Smith,  10 
Cal.  508. 

9.  Generally.  In  an  action  where  the  court 
instructed  the  jury  that  the  facts  showed  no 
valid  sale  of  personal  property  for  want  of  the 
change  of  p-issession.  which  the  statute  of  frauds 
requires,    on    appeal    the    court    sustained    the    in- 


§§609,610 


CONDUCT   OF  TRIAL  BY   JURY. 


662 


Btructions.  Ford  v.  ChamberB,  19  Cal.  143.  It  is 
not  error  for  the  court  to  refuse  to  instruct  the 
jury,  "that  where  two  innocent  parties  must  suffer, 
that  party  who  had  been  the  cause  of  another's 
loss  must  lose."  Davis  v.  Davis,  26  Cal.  44:  85 
Am.  Dee.  157.  The  jury  should  make  up  their 
verdict  from  the  facts,  according  to  the  law  as 
given  to  them  by  the  court;  and  it  is  improper 
for  a  court  to  charge  the  jury,  "to  take  into  con- 
sideration all  of  the  facts,  and  do  equal  justice 
between  the  parties,"  inasmuch  as  an  instruction 
so  general  in  its  terms  may  mislead  them.  Kelly 
V.  Cunningham,  1  Cal.  365.  Where  the  court  in- 
structs a  jury  upon  what  state  of  facts  they  may 
find  verdict  for  a  party,  the  instructions  should 
include    all    the    facts    in    controversy    material    to 


the  right  of  plaintiff  or  defense  of  defendant. 
Gallagher  v.  Williamson,  23  Cal.  331;  83  Am, 
Dec.  114;  Pearson  v.  Snodgrass,  5  Cal.  479.  If 
the  court  errs  in  the  admission  of  testimony  dur- 
ing the  trial,  but  afterwards  instructs  the  jury 
to  disregard  such  testimony,  the  error  does  not 
entitle  the  party  objecting  to  the  testimony  to 
a  new  trial.  Yankee  Jim's  Union  Water  Co.  v. 
Crary,  25  Cal.  507;  85  Am.  Dec.  145;  Emerson 
V.  Santa  Clara  County,  40  Cal.  545.  Instruc- 
tions asked  and  refused  ought  not  be  read  in  the 
hearing  of  tiie  jury.  Waldie  v.  Doll,  29  Cal. 
555.  It  is  not  error  for  the  judge,  in  stating  the 
testimony  to  the  jury,  to  read  a  memorandum  of 
testimonv  taken  by  another  person.  People  v. 
Boggs,  20  Cal.  432. 


§  609.  Special  instructions.  Where  either  party  asks  special  instruc- 
tions to  be  given  to  the  jury,  the  court  must  either  give  such  instruction^ 
as  requested,  or  refuse  to  do  so,  or  give  the  instruction  with  a  modification,^ 
in  such  manner  that  it  may  distinctly  appear' what  instructions  were  given 
in  whole  or  in  part. 

Exceptions.    Post,  §  646. 

Legislation  §  609.      Enacted  March  11,  1872. 

CODE  COMMISSIONERS'  KOTE.  Counsel 
may  propose  instructions  to  the  court,  but  the 
court  is  not  compelled  to  give  or  refuse  them  as 
presented.  If  the  proposed  instructions  are  de- 
fective in  form  of  expression,  or  erroneous  in 
law,  the  court  may  modify  them  in  either  par- 
ticular, and  give  them  to  the  jury  in  their  modi- 
fied   form,    or    he    may    refuse     them    altogether. 

§  610.  View  by  jury  of  the  premises.  "When,  in  the  opinion  of  the- 
court,  it  is  proper  for  the  jury  to  have  a  view  of  the  property  which  is  the- 
subject  of  litigation,  or  of  the  place  in  Avhieh  any  material  fact  occurred, 
it  may  order  them  to  be  conducted,  in  a  body,  under  the  charge  of  an 
officer,  to  the  place,  which  shall  be  shown  to  them  by  some  person  ap- 
pointed by  the  court  for  that  purpose.  While  the  jury  are  thus  absent,, 
no  person,  other  than  the  person  so  appointed,  shall  speak  to  them  on  any 
subject  connected  with  the  trial. 


Boyce  v.  California  Stage  Co.,  25  Cal.  470;  Law- 
rence V.  Fulton,  19  Cal.  683;  Smith  v.  Richmond, 
19  Cal.  476;  King  v.  Davis,  34  Cal.  101.  The 
cases  cited  supra  modifv  Conrad  v.  Lindley,  2 
Cal.  173;  Jamson  v.  Quivey,  5  Cal.  491;  Russel 
V.  Amador,  3  Cal.  403.  If  an  instruction  asked, 
given  entire,  would  have  been  erroneous,  the  court 
is  not  bound  to  separate  the  concluding  clause 
and  give  that  by  itself,  but  may  refuse  the  in- 
struction.    Smith  V.   Richmond,   19   Cal.  476. 


Legislation  §  610.      Enacted  March  11,  1873. 

Purpose  and  result  of  examination.     The 

piirpose  of  this  section  is,  not  to  convert 
the  jurors  into  silent  witnesses,  who  act 
on  their  own  inspection  of  the  premises 
viewed,  but  only  to  enable  them  more 
clearly  to  understand  and  apply  the  evi- 
dence (Wright  V.  Carpenter,  49  Cal.  607) ; 
and  the  result  of  their  examination  cannot 
be  taken  into  consideration  by  them  as  in- 
dependent evidence  in  the  case.  Wright  v. 
Carpenter.  49  Cal.  607;  50  Cal.  556. 

Discretion  of  court.  The  law  vests  in 
trial  courts  the  discretion  of  allowing  or 
disallowing  a  "view  of  the  premises"  or 
other  physical  objects  relevant  to  the  case, 
which  it  is  impracticable  to  bring  into 
court.  People  v.  Sampo,  17  Cal.  App.  135; 
118   Pac.  957. 

Power  of  court.  The  power  vested  in 
trial  courts  by  this  section  should  be  ex- 
ercised, if  at  all.  with  great  caution  and 
circumspection,  lest  more  harm  than  good 
result,  to  the  parties  by  thus  receiving  evi- 
dence out  of  the  courtroom.  People  v. 
Sampo,    17    Cal.    App.    135;    118    Pac.    957. 


In  an  action  for  damages  for  the  death  of 
a  person,  killed  while  in  charge  of  machin- 
ery, the  court  may  not  only  order  an. 
inspection  of  such  machinery  by  the  jury,, 
but  it  may  also  allow  the  plaintiff's  expert 
to  examine  the  machinery,  and  give  tes- 
timony relative  thereto.  Clark  v.  Tulare 
Lake  Dredging  Co.,  14  Cal.  App.  414;  112 
Pac.  564. 

Jury  may  view  what  property.  The  jury 
are  not  authorized  to  view  any  other  prop- 
erty than  that  in  litigation.  W'right  v. 
Carpenter,  50  Cal.  556. 

Judge  need  not  attend  view.  The  fail- 
ure of  the  judge  to  attend  a  view  of  the- 
premises  is  not  prejudicial,  where  no  harm 
resulted.  San  Luis  Obispo  County  v.  Simas,. 
1  Cal.  App.  175;  81  Pac.  972. 

Inspection  by  court  or  jury  of  property  or 
place  in  dispute.    See  note  92  Am.   Dec.   342. 

Impressions  made  on  minds  of  jurors  by  view- 
as  evidence  in  case.     .See  note   10   .Vnn.  Cas.   663. 

Right  of  jury  on  view  to  make  evidence  for 
themselves  by  experiment.  See  note  18  Ann.  Cas.- 
571. 

View  by  jury  as  resting  in  discretion  of  courts 
See   note    18    Ann.   Cas.    73(1. 

Bight  of  court  trying  case  without  jury  to  view 
premiECB.    See  note  19  Ann.  Cas.  578. 


663 


SEPARATION— PAPERS    TAKEN    ON    RETIRING DELIBERATION.       §§611-613 


§  611.  Admonition  when  jury  permitted  to  separate.  If  the  jury  are 
poriiiitted  to  separate,  either  durinpr  the  trial  or  after  the  case  is  submitted 
to  them,  they  shall  be  admonished  by  the  court  that  it  is  their  duty  not  to 
converse  with,  or  suffer  tlieinselves  to  tx-  addressed  l)y  any  other  person, 
on  any  subject  of  the  trial,  and  tliat  it  is  their  duty  not  to  form  or  express 
an  opinion  thereon  until  the  case  is  finally  submitted  to  them. 

Legislation  S  611.      Enuctcd  March  11,  1872. 

§  612.  Jury  may  take  with  them  certain  papers.  Upon  retiring?  for 
deliberation  the  jury  may  take  with  them  all  papers  which  have  been  re- 
ceived as  evidence  in  the  cause,  except  depositions,  or  copies  of  such  papers 
as  oug:ht  not,  in  the  opinion  of  the  court,  to  be  taken  from  the  person  hav- 
ing them  in  possession;  ami  they  may  also  take  with  them  notes  of  the 
testimony  or  other  proceedings  on  the  trial,  taken  by  themselves  or  any  of 
them,  but  none  taken  by  any  other  person. 

1.  Enacted  March  11,  1873;        L.   K.   A.    (N.   S.)    717;    115   Pac.   313);   an-l 


Legislation  §  612. 
based     on     Practice     Act.  §  167,     which     had     the 
words     "except     depositions"     inclosed    in    paren- 
theses   and     following     "all     papers,"     instead    of 
the  present   arrangement. 

2.  Amendment  by  Stats.  1901,  p.  145;  un- 
constitutional.   See  note  ante,  §  5. 

What  papers  may  be  taken  by  the  jury. 

This  section  deals  solely  with  "jiajiers" 
that  have  been  introduced  in  evideuce. 
Higgins  V.  Los  Angeles  Gas  etc.  Co.,  159 
Cal.  651;  34  L.  R.  A.  (N.  S.)  717;  115  Pac. 
313.  By  implication,  papers  not  received 
in  evidence  should  not  be  allowed  to  be 
taken  by  the  jury  on  their  retirement. 
Powley  V.  Swensen,  146  Cal.  471;  80  Pac. 
722.  Promissory  notes,  offered  in  evidence 
after  being  identified  and  proved  by  testi- 
mony contained  in  a  deposition,  are  not 
part  of  the  deposition,  and  not  within  the 
prohibition  of  this  section.  Cockrill  v. 
Hall,  76  Cal.  192;  18  Pac.  318.  The  sworn 
statement  of  a  plaintiff,  in  an  action  on 
an  insurance  polic}^  as  to  his  losses,  and 
the  certificate  of  a  justice  of  the  peace 
thereto,  are  documentary  evidence,  and  not 
within  the  prohibition  of  this  section. 
Clark  V.  Phoenix  Ins.  Co..  36  Cal.  168.  The 
practice  of  allowing  pleadings  to  be  taken 
to  the  jury-room  is  not  a  safe  one;  but 
where  no  prejudice  or  injury  is  caused,  it 
is  not  ground  for  reversal.  Powley  v. 
Swensen.  146  Cal.  471;  80  Pac.  722. 

Discretion  of  court.  This  section,  is  not 
to  be  construed  as  a  limitation  of  the  dis- 
cretionary power  of  the  court  to  allow 
other  exhibits  than  papers  to  be  taken 
by  the  jury,  but  as  a  modification  and  ex- 
tension of  the  common-law  rule  touching 
exhibits  containing  writings  (Higgins  v. 
Los  Angeles  Gas  etc.  Co.,  159  Cal.  6')1;  34 

§  613.  Deliberation  of  jury,  how  conducted.  When  the  case  is  finally 
submitted  to  the  jury,  they  may  decide  in  court  or  retire  for  deliberation ; 
if  they  retire,  they  must  be  kept  together,  in  some  convenient  place,  under 
charge  of  an  ofifieer,  until  at  least  three  fourths  of  them  agree  upon  a  ver- 
dict or  are  discharged  by  the   court.     Unless  by   order  of  the  court,   the 


It  js  not  error  to  allow  the  jury  to  take 
with  them  to  the  jury-room  the  claim  U[(0u 
which  the  suit  is  based,  which  constitutes 
a  portion  of  the  complaint,  and  which 
was  received  in  evidence  (McLean  v. 
Crow,  88  Cal.  644;  26  Pac.  596);  and  the 
court  may  permit  the  jury  to  take  with 
them,  and  use  in  their  deliberations,  any 
exhibit,  where  the  circumstances  call  for 
it,  observing  the  proper  precaution  of  in- 
structing thom  in  the  nature  of  the  use 
that  they  shall  make  of  it.  Higgins  v.  Los 
Angeles  Gas  etc.  Co.,  159  Cal.  651;  34 
L.  R.  A.  (N.  S.)  717;  115  Pac.  313. 

Jury  may  compare  documents.  The  jury 
may  compare  documents  to  determine  their 
genuineness,  although  the  testimony  of 
experts  is  offered;  and  the  jury  may  wholly 
disregard  such  testimony,  and  exercise 
their  own  judgment.  Castor  v.  Bernstein, 
2  Cal.  App.  703;  84  Pac.  244. 

Effect  on  verdict  on  papers  improperly  in  jury- 
room.    Sec   note  fi  .Ann.   ('as.  <I3  1. 

Right  of  jury  to  take  to  jury-room  affidavit  ad- 
mitted as  testimony  of  absent  witness.  See  note 
Ann.  ('as.  19i:'.(',  4!)H. 

Eight  of  jury  to  take  with  them  on  retirement 
paper  containing  calculation  or  estimate  by  party 
as  to  amount  due  him.  Sec  note  Ann.  Cas.  1913(.. 
OS  7. 

Right  of  jury  on  retirement  to  take  family 
Bible  or  other  religious  book  introduced  as  evi- 
dence.   See  note  4  1    I..   \i.   ,\.   4.'>(i. 

CODE  COMMISSIONERS'  NOTE.  In  an  ac 
tion  against  an  insurance  company,  it  is  not  error 
for  the  court  to  permit  the  jury  to  take  to  their 
rooms  the  "sworn  statement  of  plaintiff  as  to  his 
losses."  Clark  v.  Pha-nix  Ins.  Co..  36  Cal.  176:  " 
Se.vton  V.  Montgomery  County  etc.  Ins.  Co..  9 
Bnrb.  200;  Xewmarke  v.  Liverpool  etc.  Ins.  Co., 
30  Mo.  160;  77  Am.  Dec.  608;  Parsons  on  Mer- 
cantile  Law,   p.    536. 


?§  614,  615 


CONDUCT   OF  TRlAL   BY   JURY. 


664 


■officer  having  them  under  his  charge  must  not  suffer  any  communication 
to  be  made  to  them,  or  make  any  himself,  except  to  ask  them  if  they  or 
three  fourths  of  them  are  agreed  upon  a  verdict,  and  he  must  not,  before 
their  verdict  is  rendered,  communicate  to  any  person  the  state  of  their 
deliberations,  or  the  verdict  agreed  upon. 

Three  fourths,  agreement  of.    See  Const.,  art.  I,        ^  special  oath  to  the  officer  taking  charge 


5  7. 

Legislation  §  613.  1.  Enacted  March  11,  1873 ; 
based  on  Practice  Act,  §  166,  which  read:  "After 
hearing  the  charge,  the  jury  may  either  decide  in 
court,  or  retire  for  deliberation.  If  they  retire, 
they  shall  he  kept  together  in  a  room  provided 
for  them,  or  some  other  convenient  place,  under 
the  charge  of  one  or  more  officers,  until  they 
agree  upon  their  verdict,  or  are  discharged  by  the 
court.  The  ofhcer  shall,  to  the  utmost  of  his 
ability,  keep  the  jury  together,  separate  from 
other  persons;  he  shall  not  suffer  any  communi- 
cation to  be  made  to  them,  or  make  any  himself, 
unless  by  order  of  the  court,  e.Kcept  to  ask  them 
if  they  have  agreed  upon  their  verdict;  and  he 
shall  not,  before  the  verdict  is  rendered,  com- 
municate to  any  person  the  state  of  their  delib- 
erations, or  the  verdict  agreed  upon."  When 
§  613  was  enacted  in  1872,  it  read  as  at  present, 
except  that  (1)  it  had  the  word  "they"  instead 
of  "at  least  three  fourths  of  them,"  in  the  first 
sentence,  (2)  in  the  second  sentence  (a)  it  did 
not  contain  the  words  "or  three  fourths  of  them," 
and  (b)  had  the  word  "their"  instead  of  "a,"  be- 
fore  "verdict." 

3.   Amended  by  Code  Amdts.  1880,  p.  10. 

Oath  of  oflacer  in  charge  of  jury.     It  is 

not  necessary  for  the  court  to  administer 


of  the  jury  upon  its  retirement  for  delib- 
eration. Boreham  v.  Byrne,  83  Cal.  23; 
23  Pac.  212. 

When  jury  must  be  kept  together  and  the  con- 
sequences of  an  unauthorised  separation.  See 
note  43  Am.  Dec.  75. 

Separation  of  jury.  See  note  103  Am.  St.  Rep. 
155. 

Presence  of  officer  in  jury-room  during  delih- 
erations  of  jury.  See  note  36  Am.  Rep.  441;  8 
Ann.  Cas.  652. 

Prejudice  of  officer  as  disqualifying  him  from 
acting  as  custodian  of  jury.  See  note  Ann.  Cas. 
1912C,  882. 

Discharge  of  jury  without  verdict.  See  note 
1  Am.  Dec.  176. 

Delivery  of  food  to  jurymen  after  retiring  to 
consider  verdict.    See  note  16  Am.  Kep.  454. 

Communication  to  jury  by  custodian  or  other 
court  officer  as  ground  for  new  trial.  See  note 
13  Ann.  Cas.  522. 

Private  communication  by  trial  judge  with  jury 
during  deliberations  as  ground  for  new  trial. 
See  note  16  Ann.  Cas.  1141. 

Effect  of  judge  communicating  with  jury  not  in 
open  court.    See  note  17  L.  R.  A.   (N.  H.)   6U9. 

Number  and  agreement  of  jurors  necessary  to 
verdict.    See  note  43  L.  R.  A.  34. 


§  614.  May  come  into  court  for  further  instructions.  After  the  jury 
have  retired  for  deliberation,  if  there  be  a  disagreement  between  them  as 
to  any  part  of  the  testimony,  or  if  they  desire  to  be  informed  of  any  point 
of  law  arising  in  the  cause,  they  may  require  the  officer  to  conduct  them 
into  court.  Upon  their  being  brought  into  court,  the  information  required 
must  be  given  in  the  presence  of,  or  after  notice  to,  the  parties  or  counsel. 

the  parties  or  their  counsel,  is  error.    Eed- 
man  v.  Gulnac,  5  Cal.  148. 


Holidays,  Sundays,  non-judicial  days,  etc.  In- 
structions may  be  given  to  juries  deliberating  on. 
Ante,  §  134,    subd.    1. 

Legislation  §  614.  Enacted  March  11,  1873, 
in  language  of  Practice  Act,  §  168,  except  that 
the  latter  had  the  word  "shall"   instead  of  "must." 

Refusal  to  instruct,  effect  of.  Where  the 
jurj-  return  into  court,  and  ask  for  in- 
structions on  a  particular  point,  a  refusal 
is  not  error,  where  they  do  not  desire 
all  the  instructions  read,  and  the  court 
directs  them  to  follow  the  instructions 
already  given.  Cockrill  v.  Hall,  76  Cal. 
192;  18  Pac.  318. 

Instructions  in  absence  of  parties  or 
counsel.  To  allow  the  jury  to  come  into 
court  after  they  have  once  retired,  and  to 
give  them  instructions,   in  the  absence   of 


Court  should  not  try  to  influence  jury. 

Where  the  jury  return  to  the  courtroom 
and  report  that  they  cannot  agree,  it  is 
prejudicial  error  for  the  court,  after  learn- 
ing that  they  stand  eight  to  three,  to 
make  it  appear  to  them  that  the  three, 
or  one  of  the  three,  should  yield  to  the 
eight.  Mahoney  v.  San  Francisco  etc.  Ey. 
Co.,  110  Cal.  471;  42  Pac.  968;  43  Pac.  518. 

Necessity  that  further  instructions  requested 
by  jury  be  given  in  open  court.  See  note  14  Ann. 
Cas.  514. 

Necessity  that  further  instructions  to  jury  after 
retirement  be  given  iu  presence  or  with  consent 
of  counsel.    See  note   17   Ann.  Cas.   536. 

CODE  COMMISSIONERS'  NOTE.  Redman  v. 
Gulnac,   5  Cal.  148. 


§  615.  Proceedings  if  juror  becomes  sick.  If,  after  the  impaneling  of 
the  jury,  and  before  verdict,  a  juror  becomes  sick,  so  as  to  be  unable  to 
perform  his  duty,  the  court  may  order  him  to  be  discharged.  In  that  case 
the  trial  may  proceed  with  the  other  jurors  with  the  consent  of  the  parties, 
or  another  juror  may  be  sworn  and  the  trial  begin  anew ;  or  the  jury  may 
be  discharged  and  a  new  jury  then  or  afterwards  impaneled. 


665  VERDICT  NOT  RENDERED — SEALED — POLLING   JURY.  §§  616-618 

Legislation  S  615.    1.  Knactod  March  n,  1872 :  tice   Act  and  oriRinal  code  section   to   the   indica- 

based    on  I'rartiop  Act,  §  164,  which    had  the  words  tivc   "beeonu'R,"   and    (2)    adding  the  words   ''wilh 

"a   new  jnry"   instead  of  "another  juror."  the  consent  of  the  parties." 

2.  Amendment    by    Stats.    1901,    p.    140-    un- 
constitutional.   See  note  ante.  5  .'>  Withdrawal  of  a  Juror.    See  notes  78   Am.   St. 

3.  Amended     by     Stnts.     lo'OT.     p.     714.      fl)  Hep.  7H1  ;  4«  L.  K.  A.  43'2. 
changing   the    subjunctive    "become"    of    the    Prac- 

§  616.  When  prevented  from  giving  verdict,  the  cause  may  be  again 
tried.  In  all  eases  Aviiere  the  jury  are  diseharfred.  or  i)revented  from  ^'iv- 
ing  a  verdict,  by  reason  of  accident  or  other  cause,  durinf,'  the  progress  of 
the  trial,  or  after  the  cause  is  submitted  to  them,  the  action  may  be  again 
tried  immediately,  or  at  a  future  time,  as  the  court  may  direct. 

Legislation  «  616.      Enacted   March   11,    1872;         (2)    the    word    "shall"    instead   of    "may,"    before 
based  on   Practice   Act,  §  169,   which  had    (1)    the         "direct." 
word    "a"    instead    of    "the,"    before    "jury,"    and 

§  617.  While  jury  are  absent,  court  may  adjourn  from  time  to  time. 
Sealed  verdict.  While  the  jury  are  absent  the  court  may  adjourn  from 
time  to  time,  in  respect  to  other  business;  but  it  is  nevertheless  open  for 
every  purpose  connected  with  the  cause  submitted  to  the  jury,  until  a  ver- 
dict is  rendered  or  the  jury  discharged.  The  court  may  direct  the  jury  to 
bring  in  a  sealed  verdict,  at  the  opening  of  the  court,  in  case  of  an  agree- 
ment during  a  recess  or  adjournment  for  the  day. 

Legislation  §  617.   1.  Enacted  March  11,  1872;  Amendment    by    jury    of    sealed    verdict.     See 

based  on    Practice   Act,  §  170,   which   had    (1)    the  note  5  Ann.  ('as.  394. 

words    "shall    nevertheless   be    deemed    open"    in-  Right  of  clerk  or  attorney  to  receive  verdict  in 

stead    of    the    words    "is    nevertheless    open."    and  absence  of  trial  Judge.    See  note   16  Ann.  Gas.  90. 

(2)    a    final    sentence,    reading,    "A    final    adjourn-  /irt-r^T.  n/-vi.»-««-rr.<-.T,^»T.r,^-,.  ..t«™      ,.., 

ment    of    the    court    for   the    term    shall    discharge  CODE  COMMISSIONERS' NOTE.     When  a  jury 

the    jury."      When    enacted    in    1872,    the    section  ^Jf   in.sti mleil    to   brin-   m    a   sealed   verdict,   and. 

was  cha"nged  to  read  as  at  present,  except  for  the  ""f   ?«>•''.'•'"«   upon    the   verdict,    Ihey   seal    it    up 

final    sentence,    in    which    the    words    "shall    dis-  '"","",  ^V"^:   "    '"   the   officer   in   charge   of   them,   the 

charge"  were  changed  to  "discharges."  clerk  being  absent,  and  request  him  to  give   it   to 

2.   Amended  bv  Code  Amdts.  1880,  p.  10,  the  "je    clerk,   which    is   done,   and   after   the    meeting 

omission    of    the    final    sentence,    supra,    being    the  "^    ^he    court    the    following    morning    the    verdict 

onlv  change.  "^   opened    in    the   presence   of   the   jury   and   read 

by  the  clerk,  without  exception,  it  is  not  an  error 

Formerly,  adjournment  for  term  dis-  sufficient  to  warrant  a  new  trial.  The  posses- 
Charged  jury.  The  adjourntnent  of  court  ^j.-  Xllln'lr\^':Vnr\  HJet'as^f"u  \ld 
for  the  term  discharged  the  jury,  and  been  directly  delivered  to  the  clerk.  Nor  will 
hence,  where  the  trial  had  been  adjourned  it  make  any  difference,  when  the  names  of  the 
to  a  certain  day,  and  before  that  dav  the  i!:!u"!L^''''^,t  not  called,  and  they  were  not  asked 
,  ,.  J  .,  X  •  T  "  n  whether  they  had  agreed  upon  their  verdict 
court  adjourned  the  term  sine  die,  and  where  the  parties  were  present,  and  took  an  ex- 
began  a  new  term  on  the  dav  the  trial  was  ception  at  the  time;  and  where  it  is  not  pretended 
adjourned  to,  it  had  no  poWer  to  take  up  ^^"^  ^^^,  ""^u"^  entered  differs  from  one  sealed 
,,•:..,.',..              -i    ,                       r,       -c  "P-    or   that    the    result    is    in   any   respect    affected 

the  trial  at  such  time.  Johnson  v.  Pacific  by  the  omission.  The  opportunities  of  tamper- 
Cement  Co.,  50  Cal.  648.  ing  with  jury  after  separation  are  so  numerous. 
Delivery  Of  sealed  verdict  made  how.  and  in  important  cases  the  temptation  is  so  great, 
rrii  IT  n  11  T  i  4.  4.i,„  ^"^  the  ability  of  detection  so  slight,  as  to  make 
The  delivery  of  a  sealed  verdict  to  the  it  a  matter  of  grave  doubt  whether  sound  policy 
coroner,  with  the  request  that  he  deliver  does  not  require  an  adherance  to  the  verdict  as 
it  to  the  clerk,  is  not  objectionable.  Paige  sealed,  even  as  against  a  subsequent  dissent  of 
V.  O'Neal,  12  ckl.  483.  Zl  483"'"''  '  '"°"-    ^^'^'  "^^  °^"'^-  ^^ 

§  618.  Verdict,  how  declared.  Form  of.  Polling  the  jury.  When  the 
jury,  or  three  fourths  of  them,  have  agreed  upon  a  verdict,  they  must  be 
conducted  into  court,  their  names  called  by  the  clerk,  and  the  verdict  ren- 
dered by  their  foreman;  the  verdict  must  be  in  writing,  signed  by  the  fore- 
man, and  must  be  read  by  the  clerk  to  the  jury,  and  the  inquiry  made 
Avhether  it  is  their  verdict.  Either  party  may  require  the  jury  to  be 
polled,  which  is  done  by  the  court  or  clerk  asking  each  juror  if  it  is  his 
verdict ;  if  upon  such  inquiry  or  polling,  more  than  one  fourth  of  the  jurors 
disagree  thereto,  the  jury  must  be  sent  out  again,  but  if  no  such  disagree- 
ment be  expressed,  the  verdict  is  complete  and  the  jury  discharged  from 
the  case. 


619 


CONDUCT  OF  TRIAL  BY   JURY. 


666 


Verdict    received    on    non-judicial    day.     Ante, 
§  134. 

Legislation  §  618.  1.  Enacted  March  11,  1872; 
"based  on  Practice  Act,  §§  171,  173,  which  read: 
"§  171.  When  the  jury  have  agreed  upon  their 
verdict,  they  shall  be  conducted  into  court  by 
the  officer  having  them  in  charge.  Their  names 
shall  then  be  called,  and  they  shall  be  asked  by 
the  court,  or  the  clerk,  whether  they  have  agreed 
upon  their  verdict;  and  if  the  foreman  answer  in 
the  affirmative,  they  shall,  on  being  required, 
declare  the  same."  "§  173.  When  the  verdict  is 
given,  and  is  not  informal  or  insufficient,  the  clerk 
shall  immediately  record  it,  in  full,  in  the  min- 
utes, and  shall  read  it  to  the  jury,  and  inquire  of 
them  whether  it  be  their  verdict.  If  any  juror 
disagree,  the  jury  shall  be  again  sent  out ;  but  if 
no  disagreement  be  expressed,  the  verdict  shall 
he  complete,  and  the  jury  shall  be  discharged 
from  the  case."  When  enacted  in  1872,  §  618 
read:  "When  the  jury  have  agreed  upon  their 
verdict,  they  must  be  conducted  into  court,  their 
names  called  by  the  clerk,  and  the  verdict  ren- 
dered by  their  foreman.  The  verdict  must  be  in 
writing,  signed  by  the  foreman,  and  must  be  read 
l)y  the  clerk  to  the  jury,  and  the  inquiry  made 
whether  it  is  their  verdict.  If  any  juror  dis- 
agrees, they  must  be  sent  out  again ;  but  if  no 
disagreement  be  expressed,  and  neither  party  re- 
quires the  jury  to  be  polled,  the  verdict  is  com- 
plete and  the  jury  discharged  from  the  case. 
Either  party  may  require  the  jury  to  be  polled, 
which  is  done  by  the  court  or  clerk  asking  each 
juror  if  it  is  his  verdict.  If  any  one  answer  in 
the  negative,  the  jurv  must  again  be  sent  out." 
2.   Amended  by  Code  Amdts.  1880,  p.  10. 

Signature  and  consent  to  verdict.     The 

verdict  is  signed  by  the  foreman  only, 
yet  it  must  be  concurred  in  by  all  the 
other  jurors.  Eeynolds  v.  Harris,  8  Cal. 
617.  The  assent  of  the  jury  must  be  ex- 
pressed by  the  foreman,  and  his  consent 
is  conclusive  upon  all,  unless  disagreement 
is  expressed  at  the  time.  Blum  v.  Pate, 
20  Cal.  69.  Findings  of  the  jury  on  special 
issues  are  ineffective,  and  cannot  control 
the  general  verdict,  unless  signed  by  the 
jury  as  a  whole  or  by  their  foreman;  and 
the' failure  of  the  party,  against  whom  the 

§  619.     Proceedings  when  verdict  is 

Bounced,  if  it  is  informal  or  insufficient 
it  may  be  corrected  by  the  jury  under 
may  be  again  sent  out. 

Legislation  §  619.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  172.  which  read:  "If  the 
verdict  be  informal,  or  insufficient,  in  not  cover- 
ing the  whole  issue  or  issues  submitted,  the  verdict 
may  be  corrected  by  the  jury,  under  the  advice 
of  the  court,   or  the  jury  may  be  again  sent  out." 

Court  may  instruct  jury  to  amend  ver- 
dict. The  court  may  instruct  the  jury  to 
amend  their  verdict  as  to  its  form,  not 
affecting  the  substance,  and  in  such  man- 
ner as  to  be  unexceptionable  in  law.  True- 
tody  V.  .Jacobson,  2  Cal.  269.  A  verdict 
for  half  of  the  property  sued  for,  not 
responding  to  the  issues,  is  a  nullity:  the 
court  should  direct  a  finding  as  to  the 
other  half.  Muller  v.  Jewell,  66  Cal.  216; 
5  Pac.  84. 

Uncertainty  in  verdict.  Where  the  ver- 
dict fixes  a  measurement  different  from 
that  referred  to  in  the  pleadings,  and 
•which    is  ^uncertain,   the    court  is   not   at 


special  issues  are  found,  to  object  to  the 
finding  being  received,  is  not  a  waiver  of 
the  defect.  Greenberg  v.  Hoff,  80  Cal.  81; 
22  Pac.  69.  Where  questions,  upon  the 
contest  of  the  probate  of  a  will,  are  pro- 
pounded to  a  jury  and  answered  by  them, 
such  questions  and  answers,  where  they 
constitute  the  ultimate  facts  to  be  found, 
and  cover  the  issues  growing  out  of  the 
contest,  form  a  special  verdict,  which 
should  be  signed  by  the  foreman.  Estate 
of  Keithley,  134  Cal.  9;  66  Pac.  5.  An- 
swers to  special  interrogatories  must  be 
signed  either  by  the  jury  as  a  whole,  or 
by  their  foreman,  to  make  them  effective 
for  any  purpose.  Greenberg  v.  Hoff,  80 
Cal.  81;  22  Pac.  69. 

Polling  after  verdict  recorded.  Under 
the  old  practice,  the  polling  of  the  jury, 
after  the  verdict  was  recorded,  was  not 
a  matter  of  right.  Blum  v.  Pate,  20  Cal. 
69. 

Bill  of  exceptions  need  not  contain  ver- 
dict. The  verdict  of  the  jury  is  a  matter 
of  record';  hence,  it  is  unnecessary  to  in- 
sert it  in,  the  bill  of  exceptions.  Eeynolds 
V.  Harris,  8  Cal.  617. 

Bight  of  party  to  poll  the  jury.  See  note  30 
Am.  Rep.  497. 

Validity  of  verdict  rendered  after  jury  have 
been  polled  and  some  jurors  have  dissented  and 
jury  have  been  sent  back  for  further  delibera- 
tions.   See   note  6  Ann.  Cas.  457. 

Foreman  as  spokesman  for  jury.  See  note  Ann. 
Cas.  1913B,  385. 

Necessity  that  verdict  of  jury  be  signed.  See 
note  Ann.  Cas.  1913D,  182. 

Receiving  verdict  on  Sunday.  See  note  39 
L.  R.  A.  (N.  S.)  844. 

CODE  COMMISSIONERS'  NOTE.  Under  §  171 
of  the  Practice  Act  of  1851,  there  was  no  abso- 
lute right  to  poll  the  jury  in  a  civil  case.  Blum 
V.  Pate,  20  Cal.  69. 


informal.     When  the  verdict  is  an- 

,  in  not  covering  the  issue  submitted, 

the  advice  of  the  court,  or  the  jury 

liberty    to    disregard    such    measurement. 
Dougherty  v.  Haggin,  56  Cal.  522. 

Where  court  may  remand  jury  or  set  ver- 
dict aside.  Where  the  verdict  is  not  in 
conformity  with  the  issues  submitted,  the 
court  may  remand  the  jury,  under  its 
advice.  Ross  v.  Austill,  2  Cal.  183.  Where 
the  verdict  does  not  cover  all  the  issues 
submitted,  the  court  should  remand  tihe 
jury  to  render  a  verdict  in  proper  form; 
but  it  is  not  error  to  set  such  verdict  aside. 
Garlick  v.  Bower,  62  Cal.  65. 

Omission  of  words  from  verdict  as  affecting 
validity  thereof.    See  note  16  Ann.  Cas.  475. 

CODE  COMMISSIONERS'  NOTE.  If  the  ver- 
dict is  informal,  the  court  ought  to  explain  the 
defects  to  the  jury,  and  direct  them  to  put  it  in 
proper  form.  People  v,  Dick.  34  Cal.  666.  The 
court  may  instruct  the  jury  to  amend  their  ver- 
dict as  to  matters  of  form,  not  affecting  the  sub- 
stance, and  in  such  manner  as  to  be  unexception- 


€67 


VERDICTS — GENERAL   AND  SPECIAL. 


§624 


able  in  law.  Tniehndy  v.  Jacobsnn.  2  Ciil.  28-1. 
Or  the  court  may  Hiiieiiil  the  verdict,  wluMi  it  is 
defective  in  sonu'thiiig  merely  formal,  and  which 
has  no  conntclion  with  the  merits  of  the  cause, 
if  the  ameiidnient  in  no  respect  changes  the  riKlns 
of  the  parties.  Perkins  v.  Wilson,  ,3  Cal.  139. 
But  if  the  court,  instead  of  having  the  verdict 
corrected  by  the  jury,  atteiii])!  to  correct  it  by 
the  judgment,  and  go  beyond  the  verdict,  it  is 
■error.     Ross    v.    Austin,    2    Cal.    19'J.      A    general 


objection  to  the  form  of  a  verdict,  without  any 
specilicalion  of  the  particiiiars,  will  not  be  con- 
sidered. Mnhoney  v.  Van  Winkle,  21  Cal.  552. 
If  a  verdict  returned  by  a  jury  is  not  sufficiently 
definite  and  certain  to  serve  as  a  basis  for  a  judg- 
ment, and  the  party  against  whom  it  is  rendered 
consents  that  a  certain  conHtruclion  thereof  should 
be  taken  as  the  verdict,  this  proceeding  is  quite 
as  irregular,  uncertain,  and  ineffectual  as  the  ver 
diet  itself.    Campbell  v.  Jones,  38  Cal.  509. 


ARTICLE  III. 

VERDICT. 


624.  Grneral  and  special  verdicts  defined. 

625.  When  a  general  or  special  verdict  may  be 

rendered. 

626.  Verdict  in  actions  for  recovery  of  money 


or  on  establishing  counterclaim. 
§  627.     Verdict     in    actions     for    the     recovery    of 

specific  personal  property. 
§  628.     Entry  of  verdict. 


§  624.  General  and  special  verdicts  defined.  The  verdiot  of  a  jury  is 
either  general  or  special.  A  ijeneral  verdict  is  that  by  which  they  pro- 
nounce tjenerally  upon  all  or  any  of  the  issues,  either  in  favor  of  the  plain- 
titr  or  defendant;  a  special  verdict  is  that  by  which  the  jury  find  the  facts 
only,  leaving  the  judgment  to  the  court.  The  special  verdict  must  present 
the  conclusions  of  fact  as  established  by  the  evidence,  and  not  the  evidence 
to  prove  them;  and  those  conclusions  of  fact  must  be  so  presented  as  that 
nothing  shall  remain  to  the  court  but  to  draw  from  them  conclusions  of 

law. 

tificate,  constitute  a  special  verilict.  Estate 
of  Keithley,  l.'^4  Cal.  9;  6fi  Pac.  .5.  Each 
question  submitted  to  a  jury  as  a  basis 
for  a  special  verdict  should  relate  to  only 
one  fact:  the  grouping  together  of  several 
facts  is  objectionable.  Phoenix  Water  Co. 
V.  Fletcher,  2.S  Cal.  481.  The  jury  must 
decide  all  questions  of  fact  arising  from 
the  evidence,  at  least  where  there  is  a  sub- 
stantial conflict.  Estate  of  Everts,  16.3 
Cal.  449;  12.T  Pac.  10.58.  When  a  special 
verdict  is  ilesired.  the  practice  in  this  state 
is,  to  prepare  and  submit  to  the  jury  the 
special  issues  in  the  form  of  questions,  and 
this  practice  is  recognized  by  the  legis- 
lature by  the  words  of  §  1314,  post,  "the 
issues  submitted  to  them  by  the  court." 
Estate  of  Sanderson,  74  Cal.'  199;  15  Pac. 
7.")  3. 

Special  verdict  sufficient  when.  A  spe- 
cial verdict  must  find  the  facts  expressly 
and  s|)ecially,  not  generally  or  impliedly; 
and  it  must  present  the  facts  so  distinctly 
as  to  refer  the  court  clearly  to  the  ques- 
tions of  law  arising  ujion  them  (Breeze  v. 
Doyle,  19  Cal.  101);  and  it  must  pass  on 
all  the  issues,  by  presenting  the  conclu- 
sions of  fact  bearing  on  them  all.  Estate 
of  Sanderson,  74  Cal.  199;  1.1  Pac.  7.53.  A 
special  finding  in  the  language  of  the  com- 
plaint is  sufficient.  Napa  Valley  Packing 
Co.  V.  San  Francisco  Relief  etc.  Funds.  !•> 
Cal.  App.  4()1;  118  Pac.  469.  Where  all 
the  issues  in  the  case  are  not  submitted 
to  the  jury,  the  verdict  is  an  incomplete 
and  imperfect  special  verdict.  Montgom- 
ery V.  Sayre,  91  Cal.  206;  27  Pac.  648.  A 
special     finding,   not   disposing   of    all    the 


General  or  special  verdict,  when  may  be  ren- 
dered.    Post,  §  62.'). 

Misconduct  of  jury.    Post,  §  657,  subd.  2. 

Legislation  S  624.      Enacted  March    11.    1872; 

"based    on    Practice    Act.  §  174  (New    York    Code, 

§  250),  which  had  the  word  "shall"  instead  of 
■"must,"  in  both  instances. 

The  general  verdict.  A  general  verdict 
is  synthetic;  a  compound  of  law  and  fact. 
Murphy  v.  Bennett,  68  Cal.  528;  9  Pac. 
738.  It  must  control,  if  the  special  ver- 
dict is  not  absolutely  irreconcilable  there- 
with. Petersen  v.  California  Cotton  Mills 
Co.,  20  Cal.  App.  751;  130  Pac.  169.  It 
must  be  certain:  an  uncertain  verdict  will 
jQot  support  the  judgment  on  appeal.  Diggs 
V.  Porteus,  5  Cal.  Unrep.  753;  33  Pac.  447. 
It  implies  a  finding  in  favor  of  the  prevail- 
ing i)arty,  of  every  fact  essential  to  the 
-support  of  his  action  or  defense.  Plyer  v. 
Pacific  etc.  Cement  Co.,  152  Cal.  125;  92 
Pac.  56.  A  general  verdict  determines  all 
issues,  where  there  is  evidence  to  support 
such  verdict.  Petersen  v.  California  Cotton 
Mills  Co.,  20  Cal.  App.  751;  130  Pac.  169. 

Tlie  special  verdict.  A  special  verdict 
is  analytic;  it  finds  its  facts,  and  submits 
the  law  to  the  court.  Murphy  v.  B(>nnett, 
68  Cal.  528;  9  Pac.  738.  It  is  the  office  of. 
the  trial  jury,  by  their  verdict,  to  find  the 
facts  in  issue,  whether  general  or  special: 
with  the  legal  effect  of  such  facts  they 
Tiave  no  concern.  Fitzpatrick  v.  Ilimmel- 
mann,  48  Cal.  588.  Questions  of  fact  pro- 
pounded to  and  answered  by  the  jury 
constitute  the  ultimate  facts  to  be  found, 
covering  the  issues  growing  out  of  the 
■contest;  and  the  embodiment  of  the  ques- 
tions and  answers,  with  the  foreman's  cer- 


§624 


VERDICT. 


668 


issues  in  the  ease,  anJ  not  accompanied 
by  a  general  verdict,  is  of  no  legal  effect: 
no  judgment,  except  by  consent  of  the  par- 
ties, can  be  entered  on  it.  Montgomery  v. 
Sayre,  3  Cal.  Unrep.  365;  25  Pac.  552. 
Where  two  defendants  answer,  and  a  third 
makes  default,  the  verdict  is  properly  con- 
fined to  those  who  answer,  and  should  not 
include  the  one  as  to  whom  there  is  no 
issue.  Golden  Gate  Mill  etc.  Co.  v.  Joshua 
Hendy  Machine  Works,  82  Cal.  184;  23 
Pac.  45.  Conclusions  of  law  cannot  be 
considered  in  determining  the  sufficiency 
of  a  special  verdict.  Petersen  v.  Califor- 
nia Cotton  Mills  Co.,  20  Cal.  App.  751;  130 
Pac.  169. 

Submission  of  special  issue.  The  court 
may  properly  refuse  to  submit  a  special 
issue  already  included  iu  another  issue  sub- 
mitted. Diehl  v.  Sw^ett-Davenport  Lumber 
Co.,  li  Cal.  App.  495;  112  Pac.  561;  Irrgang 
V.  Ott,  9  Cal.  App.  440;  99  Pac.  528. 

Court  may  order  new  trial  when.  W'here 
the  court,  upon  hearing  evidence  after  the 
jury  has  passed  upon  some  of  the  vital 
issues,  makes  findings  upon  all  of  the  is- 
sues, contrary  to  the  verdict,  such  action 
is,  in  effect,  a  setting  aside  and  vacating  of 
the  verdict,  and  the  court  should  order  a 
new  trial  by  jury,  having  no  power  to  de- 
termine the  cause  without  a  jury.  Mont- 
gomery V.  Sayre,  91  Cal.  206;  27  Pac.  648. 

Terms  defined.  The  terms  "verdict"  and 
"decision"  are  appositional:  what  is  predi- 
cated of  one  is  predicated  also  of  the 
other.  The  verdict  is  the  decision  of  the 
jury,  reported  to  the  court,  on  matters 
lawfully  submitted  to  them,  and  is  either 
general  or  special;  general,  when  it  finds 
the  facts  and  the  law,  and  special,  when 
it  finds  the  facts  only,  leaving  the  law 
applicable  to  them  to  be  decided  by  the 
court.     Simmons  v.  Hamilton,  56  Cal.  493. 

Verdict  ascertained  by  averaging  aggregate 
separate  markings  of  all  the  jurors.  See  note  34 
Am.  l;ep.  eil5. 

Chance  verdict.  See  note  2  Am.  Dec.  38;  16 
Ann.  Cas.  910. 

What  special  verdict  must  contain.  See  note 
24  L.  R.  A.   (X.  S.)    1. 

CODE  COMMISSIONERS'  NOTE.  1.  Gen- 
erally. The  verdict  musl  be  confined  to  the  is- 
sues. Benedict  v.  Bray,  2  Cal.  256;  56  Am.  Dec. 
332;  Truebody  v.  Jacobson,  2  Cal.  285.  If  the 
court,  instead  of  having  the  verdict  corrected  by 
the  jury,  attempt  to  correct  it  by  the  judgment, 
and  go  beyond  the  verdict,  it  is  error.  Ross  v. 
Austin,  2  Cal.  192.  The  verdict  of  a  jury  is  a 
record,  and  copies  thereof  may  be  sufficiently  au- 
thenticated by  the  certificate  of  the  clerk.  Rey- 
nolds V.  Harris,  8  Cal.  618.  A  joint  verdict 
against  the  defendants  answering,  and  a  defend- 
ant in  default,  is  conclusive  against  all  the  de- 
fendants, when  a  separate  verdict  has  not  been 
dfmanded.  Anderson  v.  Parker,  G  Cal.  197.  A 
stipulation  that  a  verdict  may  be  entered  in  favor 
of  the  defendant,  saving  to  the  plaintiff  the  rights 
■which  he  would  have  had  in  case  a  jury  had  ren- 
dered a  verdict  for  the  defendant,  is  to  be  re- 
garded in  the  same  light  as  a  verdict,  and  is 
followed  by  the  same  legal  results.  Sunol  v.  Hep- 
burn, 1  Ca),  258.  The  court  requested  counsel 
to  prepare  for  the  jury  blank  forms  of  the  ver- 
dict, and  the  plaintiff's  counsel  prepared,  and  the 


defendant's  counsel  assented  t'o,  two  forms,  one 
of  which  was,  "We,  the  jury,  find  for  the  plain- 
tiff,   and    that    the    value    of    the    property    was 

$ "-    and    the    other,    "We,    the   jury,    find   for 

the  defendant."  And  it  was  agreed  in  open 
court  that  the  verdict  should  be  in  accordance 
with  one  of  those  forms.  The  stipulation,  and. 
the  assent  to  those  forms  for  the  verdict,  make 
it  manifest  that  the  respective  parties  desired, 
and  expected  a  general  verdict  for  the  whole  prop- 
erty in  controversy,  and  negative  the  idea  that 
either  party  then  claimed  that  his  right  to  any 
parcel  of  the  property  was  of  a  different  char- 
acter, or  rested  upon  any  different  basis  from, 
that  asserted  to  all  the  property.  After  an  ad- 
verse verdict,  rendered  under  those  circumstances, 
it  is  too  late  for  the  plaintiff  to  insist  on  a  ver- 
dict in  another  form,  or  to  assert  a  right  to  a 
portion  of  the  property  upon  principles  not  ap- 
plicable alike  to  all  the  property.  Sexey  v.  Ad- 
kison,  40  Cal.  418.  The  court  may  impose,  as 
a  condition  of  permitting  a  verdict  to  stand  in 
other  respects,  the  remission  of  damages  in  cases 
where  there  was  no  evidence  on  the  subject  of 
damages,  or  where  the  evidence  was  entirely  in- 
sufficient, or  where  the  court  differs  from  the  jury 
as  to  the  effect  of  the  evidence.  But  where  the 
verdict  for  the  damages  was  based  entirely  upon 
an  admission  by  the  record,  it  must  stand.  The 
admission,  if  good  for  anything,  is  good  for  the 
entire  amount  specified.  Patterson  v.  Ely,  19' 
Cal.  2  8. 

2.  General  verdict.  A  general  verdict,  ren- 
dered and  received  without  objection,  either  by 
the  court  or  the  parties,  is  good,  notwithstanding, 
the  failure  of  the  jury  to  find  upon  certain  special 
questions  submitted  to  them  bv  the  court.  Moss 
V.  Priest,  1  Rob.  632;  19  Abb.  Pr.  314.  A  gen- 
eral verdict  concludes  all  parties  who  do  not  an- 
swer separately  or  demand  separate  verdicts. 
Winans  v.  Christy,  4  Cal.  70;  60  Am.  Dec.  597; 
Ellis  V.  Jeans,  7  Cal.  409.  The  plaintiff  in  eject- 
ment may  sue  one  or  more  defendants,  and  they 
may  answer  separately,  or  demand  separate  ver- 
dicts; unless  they  do  so,  they  will  be  bound  by 
a  general  verdict.  Winans  v.  Christy,  4  Cal.  70; 
60  Am.  Dec.  597.  In  ejectment,  the  defendants, 
being  in  possession,  the  verdict  may  be  joint 
against  several  defendants,  without  specifying: 
their  respective  lots  in  a  whole  tract,  where  they 
file  a  joint  answer,  which  contains  no  averment 
as  to  the  particular  portion  of  land  occupied  by 
each,  no  proof  being  offered  on  the  point,  no  dam- 
ages being  claimed.  McGarvey  v.  Little.  15  Cal. 
31.  A  joint  verdict  against  the  defendants  an- 
swering and  a  defaulting  defendant,  is  binding 
against  all  the  defendants,  when  a  separate  ver- 
dict has  not  been  demanded,  Anderson  v.  Parker,. 
6  Cal.  197;  Ellis  v.  Jeans,  7  Cal.  409.  In  an 
action  to  recover  real  property,  the  jury  rendered, 
the  following  verdict:  "We,  the  jury  in  this- 
cause,  find  a  verdict  in  favor  of  the  plaintiff, 
against  defendants,  for  the  possession  of  the  prem- 
ises described  in  the  complaint  herein,  and  the 
sum  of  $165  damages."  This  was  held,  a  general 
verdict,  covering  all  the  issues,  and  that  it  does 
not  limit  the  finding  to  any  particular  fact  or 
single  issue.  Hutton  v.  Reed,  25  Cal.  491;  see 
Leese  v,  Clark,  28  Cal.  26.  Where  the  jury  ren- 
dered "a  verdict  in  favor  of  plaintiffs,  with  one 
dollar  damages,"  it  was  held,  that  the  verdict  de- 
cided the  question  of  title  in  favor  of  plaintiffs, 
and  that  upon  it  they  were  entitled  to  a  decree 
perpetually  enjoining  defendants  from  working 
upon   the   ground   claimed   in    the   comnlaint:    that 

.  this  equitable  relief  was  a  matter  of  right,  the 
denial  of  which  by  the  district  court  was  error. 
McLaughlin  v.  Kelly,  22  Cal.  211. 

3.  Special  verdict.  A  special  verdict  should 
find  "facts,"  and  not  the  "evidence  of  facts." 
The  verdict  should  leave  nothing  for  the  court, 
to  determine,  save  questions  of  law.  Langley  v.. 
Warner,  3  X.  Y.  327;  Sisson  v.  Barrett,  2  X.  Y. 
406;  Hill  v.  Covell,  1  N.  Y,  522;  Williams  v. 
Willis,  7  Abb.  Pr.  90.  It  should  state  all  the 
facts.  Eisemann  v.  Swan,  6  Bosw.  669.  Not  ad- 
mitted by  the  pleadings.  Barlo  v.  Himrod,  8- 
N.  Y.  483;  59  Am.  Dec.  506;  Williams  v.  Jack- 
son, 5  Johns.  489.  The  facts  must  be  found  ex- 
pressly    and     specially,     and     not     generally     or- 


^69 


GENERAL    OR    SPECIAL    VERDICT    RENDERED    WHEN. 


§625 


impliedly.  Breeie  v.  Doyle,  19  Cal.  101.  Where 
special  issues  are  submitted,  they  should  include 
all  que.stions  of  fact  raised  by  the  pli'adiiiKs.  and 
necessary  to  determine  the  case,  amd  should  bo 
separately  and  distinctly  slated.  I'liu'iiix  Water 
Co.  V.  Fletcher,  23  Cal.  482.  In  an  action  for  a 
quartz-ledge  when  the  defendants  deny  plain- 
tiffs' title  and  ouster,  and  set  uj)  title  in  tliom- 
■selves  to  a  part  only  of  the  led;;e,  a  special 
verdict  awardinR  defendants  that  portion  of  the 
ledge  they  claim,  without  a  general  verdict,  if 
accepted  by  plaintiffs,  is  a  finding  in  favor  of 
•defendants,  and  entitles  tMem  to  costs.  Gonzales 
V.  Leon,  31  Cal.  98.  A  special  verdict  settles 
the  facts,  and  the  court,  by  its  judgment,  pro- 
jiounces  the  conclusions  of  law  upon  those  facts. 
If  the  court  errs  in  this  respect,  the  error  may 
be  reviewed  without  a  motion  for  a  new  trial; 
"but  the  right  to  correct  the  verdict  does  not  de- 
pend upon  the  judgment,  and  the  steps  necessary 
for  that  purpose  must  be  taken  within  the  statu- 
tory time.  People  v.  Hill,  16  Cal.  117.  The  party 
in  whose  favor  a  judgment  is  rendered  on  a  spe- 
cial verdict  must  move  for  a  new  trial,  if  he  is 
not  satisfied  with  the  verdict,  as  the  verdict 
would  otherwise  be  conclusive  as  to  the  facts  in 
the  appellate  court.  Garwood  v.  Simpson,  8  Cal. 
108;  Duff  V.  Fisher,  15  Cal.  380.  In  ejectment 
for  a  tract  of  land,  plaintiff  claiming  under  a  deed 
from  one  McDowell,  the  case  turned  upon  the 
question  whether  the  plaintiff,  at  the  time  of  his 
purchase  from  McDowell,  had  notice  of  a  prior 
verbal  sale  of  the  land  from  McDowell  to  de- 
fendant. The  jury,  to  whom  this  question  had 
been  specially  submitted,  returned  a  verdict:  "If 
possession  was  notice,  he  had."  This  finding  was 
insufficient,  because  equivocal,  neither  finding 
directly  the  fact  of  possession,  nor  the  time  of 
it,  nor  the  kind  of  possession.  Woodson  v.  Mc- 
Oune,  17  Cal.  298.  Where  the  point  on  which 
the  case  turnea  was  whether  Kappelman  &  Co., 
■who  employed  plaintiff  to  do  work,  acted  as 
contractors  in  individual  capacity,  or  as  agents 
of  defendants,  and  the  jury  found  a  special  ver- 
dict, that  "the  work  and  labor  done  by  plaintiff 
In  the  construction  of  the  dam  was  done  at  the 
instance  and  request  of  Kappelman  &  Co..  who 
were  the  agents  of  the  corporation  defendant," 
it  was  held  that  this  verdict  did  not  support  a 
judgment  for  plaintiff,  because  it  did  not  show, 
of  itself,  a  legal  conclusion  of  liability,  not  find- 
ing whether  Kappelman  &  Co.  acted  as  agents 
or  not.  Garfield  v.  Knight's  Ferrv  etc.  Water 
Co.,  17  Cal.  519. 

4.  Mixed  verdicts.  If  special  matter  found 
follows  or  is  followed  by  general  matter,  the  for- 
mer controls.  Fraschieris  v.  Hcnriques,  6  Abb. 
Pr.  (N.  S.)  251;  see  §625,  post;  McDermott 
v.  Higbv,  23  Cal.  489;  Leese  v.  Clark,  20  Cal. 
387. 

5.  Separate  verdicts.  Where  several  defend- 
ants, in  an  action  for  the  recovery  of  real  prop- 
erty, unite  in  an  answer  amounting  to  a  general 
■denial,  a  joint  verdict  is  proper,  though  the  an- 
swer  concludes   with    a   prayer  for   separate   ver- 

§  625.    When  a  general   or   special   verdict  may  be  rendered.     In   an 

action  for  the  recovery  of  money  only,  or  specific  real  property,  the  jury,  in 
their  discretion,  may  render  a  general  or  special  verdict.  In  all  other  case*? 
the  court  may  direct  the  jury  to  find  a  special  verdict  in  writing,  upon  all, 
or  any  of  the  issues,  and  in  all  cases  may  instruct  them,  if  they  render  a 
general  verdict,  to  find  upon  particular  questions  of  fact,  to  be  stated  in 
writing,  and  may  direct  a  written  finding  thereon.  The  special  verdiet  or 
"finding  must  be  filed  with  the  clerk  and  entered  upon  the  minutes.  Where 
a  special  finding  of  facts  is  inconsistent  with  the  general  verdict,  the 
former  controls  the  latter,  and  the  court  must  give  judgment  accordingly. 


diets.  To  entitle  defendants  to  separate  verdicts, 
they  must  set  forth  with  specific  description  the 
parcels  which  they  severally  occupy  or  claim, 
and  direct  the  attention  of  plaintiff  to  the  I'ourse 
of  defense  upon  which  they  will  separately  insist. 
Patterson  v.  Kly,  19  Cal.  28;  Hicks  v.  Coleman, 
25   Cal.    14.-);    Mo   Am.   Dec.   103. 

6.  Effect  of  verdict.  In  equity  cases  the  ver- 
dict is  advisory  only  (Still  v.  Saunders,  8  Cal. 
'jsl),  and  the  court  may  disregard  it.  Goode  v. 
Smith,  13  Cal.  84;  (Jarner  v.  Marshall,  9  Cal. 
208.  A  defective  allegation  in  a  pleading  may 
be  cured  by  default  or  verdict,  but  not  so  the 
entire  absence  of  any  allegations  whatsoi'ver. 
Hentsch  v.  Porter,  10  Cal.  555;  Garner  v.  Mar- 
shall, 9  Cal.  268;  People  v.  Rains,  23  Cal.  128. 
Where  a  pleading  states  a  condition  precedent, 
and  does  not  aver  performance,  the  defect  must 
be  urged  on  demurrer;  it  comes  too  late  after 
verdict.  Happe  v.  Stout,  2  Cal.  461.  An  omis- 
sion to  allege  delivery,  in  an  action  on  a  bond, 
cannot  be  taken  advantage  of  after  verdict.  Gar- 
cia V.  Satrustegui,  4  Cal.  244;  Wilkins  v.  .Stidger, 
22  Cal.  235;  83  Am.  Dec.  64.  A  verified  com- 
plaint, containing  only  the  general  averment  that 
"defendants,  though  often  requested,  have  re- 
fused," etc.,  when  a  special  demand  was  neces- 
sary, is  sutficient  in  this  respect,  unless  demurred 
to  for  want  of  certainty.  If  not  demurred  to, 
the  defective  averment  is  cured  by  verdict,  and 
the  objection  cannot  be  raised  in  the  anpellafe 
court.  Mills  V.  Barney,  22  Cal.  240;  Jones  v. 
Block,  30  Cal.  227.  The  finding  of  a  jury,  upon 
a  fiuestion  of  fact,  how  f.nr  final  and  conclusive. 
Perry  v.  Cochran,  1  Cal.  180;  Duff  v.  Fisher,  15 
Cal.  380.  A  general  verdict  does  not  operate 
as  an  estoppel,  e.Kcept  as  to  such  matters  as  were 
necessarily  considered  and  determined  by  the 
jury.  It  is  never  conclusive  upon  immaterial  or 
collateral  issues.  McDonald  v.  Bear  River  etc. 
Mining  Co.,  15  Cal.  145.  The  effect  of  a  gen- 
eral verdict  will  be  limited  to  such  issues  as 
necessarily  controlled  the  action  of  the  jurv.  Kidd 
V.  Laird.    15   Cal.    161;    76   Am.   Dec.   472.' 

7.  Affidavits  of  jurors  to  impeach  a  verdict. 
The  affidavit  of  jurors  will  not  be  allowed  to  con- 
tradict the  verdict.  Castro  v.  Gill,  5  Cal.  40; 
Amsby  v.  Dickhouse,  4  Cal.  102;  Wilson  v. 
Berryman,  5  Cal.  44;  63  Am.  Dec.  78;  People 
V.  Baker,  1  Cal.  403.  E.xcept  where  the  verdict 
was  the  result  of  "a  resort  to  the  determination 
of  chance."  .See  subd.  2,  §  657,  post;  Boyce  v. 
California  Stage  Co..  25  Cal.  475.  Biit  the  tes- 
timony of  the  sheriff  is  competent  to  disclose 
what  transpires  in  the  jurv-room.  Wilson  v. 
Berryman,  5  Cal.  44;  63  Am.  Dec.  78.  Affi- 
davits of  counsel  and  others  on  information 
respecting  the  misbehavior  of  the  jury  while  con- 
sidering their  verdict,  are  not  admissible  to  im- 
peach the  verdict.  Peonle  v.  Ilartung,  8  Abh. 
Pr.  132;  People  v.  Wilson,  8  Abb.  Pr.  137. 
The  presumptions  are  in  favor  of  the  verdict 
below,  unless  error  is  clearly  manifest.  Allen 
v.-  Phelps,   4   Cal.   259. 


Legislation  8  625.  1.  Enacted  March  11,  1872  ; 
hased  on  Practice  Act,  §  175  (New  York  Code, 
§§261,  262).  as  amended  by  Stats.  1854.  Red- 
ding ed.  p.  62,  Kerr  ed.  p.  88.  When  enacted 
:in  1872,  (1)  the  word  "shall"  was  changed  to 
'"must,"   before   "be  filed,"    (2)    the   words   "shall 


be"  were  changed  to  "is,"  before  "inconsistent," 
(3)  the  words  "shall  control"  were  changed  to 
"controls,"  and  (4)  the  word  "shall"  w-as  changed 
to   "must,"  before   "t'ive  jude-ment," 

2.   Amended   by   Stats.   1905,   p.  56,    (1)   add- 
ing,   (a)    in    first   sentence,    after   "the   jury,"    the 


§625 


VERDICT. 


670 


words  "unless  instructed  by  the  court  to  render 
a  special  verdict,  may,"  and  (b)  placing  "may" 
after  "discretion";  (2)  changing  the  second  sen- 
tence to  read,  "In  all  cases  the  court  must,  upon 
the  request  in  writing  of  any  of  the  parties, 
direct  the  jury  to  find  a  special  verdict  in  writ- 
ing upon  all  or  any  of  the  issues  and  in  all  cases 
must  instruct  them  upon  the  request  in  writing 
of  any  of  the  parties,  if  they  render  a  general 
verdict,  to  find  upon  particular  questions  of  fact, 
to  be  stated  in  writing,  and  must  direct  a  writ- 
ten finding  thereon." 

3.  Amended  by  Stats.  1909.  p.  193,  changing 
the  section  to  read  as  enacted  in  1872,  except 
that  in  second  sentence  commas  were  added  be- 
fore and  after  the  words  "upon  all." 

Special  and  general  verdict  must  be  con- 
sistent. A  special  verdict  anil  a  general 
verdict  must  be  consistent  with  each 
other:  the  special  verdict  controls  the  gen- 
eral verdict;  and  where  the  jury  have,  by 
their  general  verdict,  drawn  a  conclusion 
not  warranted  by  law,  the  court  should 
order  judgment  according  to  the  special 
verdict.  Simmons  v.  Hamilton,  .56  Cal.  493. 
If  a  general  verdict  in  favor  of  a  party 
is  not  inconsistent  with  a  special  verdict 
in  his  favor,  upon  an  issue  decisive  of  the 
case,  judgment  should  be  rendered  on  the 
general  verdict.  McDermott  v.  Higby,  23 
Cal.  4S9.  A  special  verdict  upon  a  single 
point  may  often  determine  the  whole  case: 
a  special  verdict,  in  such  ease,  would  con- 
trol any  general  verdict  to  the  contrary; 
but  where  the  special  findings  do  not  have 
such  controlling  effect,  a  special  verdict 
cannot  be  properly  deemed  inconsistent 
with  the  general  verdict.  McDermott  v. 
Higby,  23  Cal.  489.  Where  a  special  find- 
ing of  facts  is  inconsistent  with  the  gen- 
eral verdict,  the  former  controls  the  latter, 
and  the  court  must  give  judgment  accord- 
ingly. Napa  Valley  Packing  Co.  v.  San 
Francisco  Eelief  etc.  Funds,  16  Cal.  App. 
461;  118  Pac.  469.  The  general  verdict 
must  control,  unless  the  special  findings 
are  absolutely  irreconcilable  with  it:  the 
court  should  not  strain  the  language  of  a 
finding  to  make  out  a  case  of  conflict. 
Antonian  v.  Southern  Pacific  Co.,  9  Cal. 
App.  718;  100  Pac.  877.  Where  the  find- 
ings are  open  to  a  double  construction,  that 
construction  should  be  adopted  which  up- 
holds the  general  verdict.  Spear  v.  United 
Railroads,  16  Cal.  App.  637;  117  Pac.  956. 
There  need  not  be  a  finding  upon  each 
issue  in  a  special  verdict,  to  render  it  in- 
consistent with  a  general  verdict.  Napa 
Valley  Packing  Co.  v.  San  Francisco  Ee- 
lief etc.  Funds,  16  Cal.  App.  461;  118  Pac. 
469.  The  defendant  is  entitled  to  judg- 
ment, where  a  special  finding  controlling 
the  case  is  in  his  favor,  notwithstanding 
a  general  verdict  for  the  plaintiff.  Di 
Vecchio  v.  Luchsinger,  12  Cal.  App.  219; 
107  Pac.  315.  Special  findings,  which  ex- 
pressly negative  all  negligence  on  the  part 
of  any  person  at  the  time  of  an  accident, 
an<l  exonerate  the  defendant  from  any 
want  of  care  in  selecting  its  employees,  are 
in  conflict  with  a  general  verdict  for  the 


plaintiff.  Vaughn  v.  California  Central  Ry.. 
Co.,  83  Cal.  18;  23  Pac.  215.  There  is  no- 
conflict  between  a  general  verdict  giving 
the  items  constituting  the  damage,  and  a. 
special  verdict  giving  the  amount  of  those 
items;  but  if  certain  small  items  of  dam- 
ages are  unsupported  by  the  evidence,  the 
judgment  should  be  modified  accordingly. 
Irrgang  v.  Ott,  9  Cal.  App.  440;  99  Pac. 
528.  A  general  verdict  for  the  plaintiff,, 
in  an  action  for  damages  for  fraud  in 
inducing  the  execution  of  a  lease,  by  rep- 
resenting that  an  occupant  of  the  prem- 
ises was  a  tenant  from  month  to  month 
instead  of  having  a  lease  for  a  year,  is 
inconsistent  with  a  special  finding  that 
the  tenant  was  not  in  possession  under  a 
lease  for  one  year  at  a  monthly  rentaL 
Di  Vecchio  v.  Luchsinger,  12  Cal.  App.  219; 
107  Pac.  315.  The  party  in  whose  favor 
the  general  verdict  is  rendered  is  entitled 
to  judgment  thereon,  as  a  matter  of  course,, 
without  motion;  if,  therefore,  the  opposing 
party  wishes  to  urge  his  right  to  judgment, 
he  must  move  for  judgment  on  the  special 
findings,  on  the  ground  that  they  are  in- 
consistent with  the  general  verdict.  Napa. 
Valley  Packing  Co.  v.  San  Francisco  Re- 
lief etc.  Funds,  16  Cal.  App.  461;  118  Pac. 
469. 

Conclusiveness  of  general  verdict.  A 
general  verdict  or  judgment  operates  as 
an  estoppel  as  to  such  matters  as  are 
necessarily  considered  and  determined,  but 
it  is  never  conclusive  upon  immaterial  or 
collateral  issues.  Chapman  v.  Hughes,  134 
Cal.  641;  58  Pac.  298.  When  distinct, 
issues  are  made  and  a  general  verdict  is 
rendered,  such  verdict  must  stand,  al- 
though the  special  findings  upon  one  of 
the  issues  may  not  support  the  general 
verdict,  if  the  special  findings  upon  an- 
other distinct  issue  will  support  it.  O'Con- 
nell  V.  United  Railroads,  19  Cal.  App.  36; 
124  Pac.  1022;  California  Wine  Ass'n  v. 
Commercial  Union  Fire  Ins.  Co.,  159  Cal- 
49;  112  Pac.  858. 

Objections  to  verdict  made  when.  An 
objection  to  the  form  for  a  special  verdict 
must  be  made  at  the  time  of  the  submis- 
sion of  the  question  to  the  jury;  other- 
wise, it  will  be  presumed  that  there  was 
assent  to  the  questions  as  presented;  and 
the  motion  for  a  judgment  on  special  find- 
ings must  be  made  before  judgment  is  en- 
tered on  the  general  verdict.  Napa  Valley- 
Packing  Co.  V.  San  Francisco  Relief  etc. 
Funds,  16  Cal.  App.  461;  118  Pac.  469.  A 
stipulation  that  the  jury  might  render  a. 
general  verdict  in  favor  of  either  party 
is  legitimate,  and  estops  the  losing  party 
from  repudiating  the  general  verdict,, 
which  is  conclusive  of  the  whole  case.. 
.Tohnson  v.  Mina  Rica  Gold  Mining  Co.,  128 
Cal.  521;  61  Pac.  76. 

Special  issues  and  findings.  As  this  sec- 
tion  stood  under   the  amendment  of   1905,. 


671 


SPECIAL  ISSUES  AND  FINDINGS — DISCRETION   OF   COURT. 


§625 


the  jury  were  required,  if  so  instructed 
by  the  court,  at  the  request  of  either 
party,  to  return  a  special  verdict  upon  any 
issue  made  by  the  jjleadinys.  California 
Wine  Ass'n  v.  Commercial  Ciiion  Fire  Ins. 
Co.,  159  Cal.  49;  112  Pac.  858.  The  pro- 
vision for  special  findings  in  jury  trials 
is  to  be  liberally  construed  and  apj)lied. 
Plyer  v.  Pacific  etc.  Cement  Co.,  152  Cal. 
125;  92  Pac.  56.  Where  special  issues  are 
submitted  to  the  jury,  they  should  include 
all  questions  of  fact  raised  by  the  plead- 
ings, necessary  to  determine  the  case,  and 
they  should  be  sejiarateh'  and  distinctly 
stated.  Phoenix  Water  Co.  v.  Fletcher.  23 
Cal.  481.  The  issues  of  fact  submitted 
should  be  such  that  the  verdict  thereon 
would  be  determinative  of  an  order  of 
judgment  to  be  entered  by  the  court,  and 
not  merely  determinative  of  subordinate 
facts  which  may  be  considered  by  the 
court  in  connection  with  other  facts  in 
making  its  order  or  judgment.  Estate  of 
Sanderson,  74  Cal.  199;  15  Pac.  753.  With- 
out the  aid  of  special  issues,  it  would  be 
next  to  impossible  to  find  a  jury  capable 
of  passing  understandingly  upon  the  vari- 
ous questions  of  fact  involved;  and  the 
statute  contemplates  that,  in  all  such 
cases,  special  issues  shall  be  framed  under 
the  direction  of  the  court,  according  to  the 
long-established  rules  of  chancery  prac- 
tice. Brewster  v.  Bours,  8  Cal.  501.  The 
court  may  properly  direct  that  special 
issues  shall  be  framed  and  settled,  and 
stated  in  writing,  before  proceeding  to 
trial.  Smith  v.  Rowe,  4  Cal.  6.  If  special 
issues  are  improperly  submitted  to  the 
jury,  a  party  is  not  prejudiced  thereby, 
where  the  jury  finds  a  general  verdict. 
Law  V.  Northern  Assurance  Co.,  165  Cal. 
394;  132  Pac.  590.  The  primary  purpose 
of  special  findings  is  to  determine  whether 
the  general  verdict  is  or  is  not  against  law. 
Fujise  V.  Los  Angeles  Ry.  Co.,  12  Cal.  App. 
207;  107  Pac.  317;  Plyer  v.  Pacific  etc. 
Cement  Co.,  152  Cal.  125;  92  Pac.  56;  7 
Cal.  Unrep.  279;  87  Pac.  395;  Larsen  v. 
Leonardt,  8  Cal.  App.  226;  96  Pac.  395. 
In  an  action  for  personal  injuries,  the  de- 
fendant is  entitled  to  have  findings  upon 
all  the  special  issues  submitted  to  the 
jury:  the  failure  to  find  upon  some  of  them 
requires  that  the  judgment  upon  the  gen- 
eral verdict  for  the  plaintiff  be  reversed. 
Larsen  v.  Leonardt,  8  Cal.  App.  226;  96 
Pac.  395. 

Request  for  special  verdict,  discretion  of 
court  in  granting.  Under  the  amendment 
of  this  section  in  1905,  special  findings 
were  made  compulsory  in  all  cases  tried 
by  jury,  when  properly  requested  (Plyer 
v.   Pacific   etc.   Cement   Co.,    152   Cal.   125; 

92  Pac.  56;  87  Pac.  395;  Williams  v.  San 
Francisco   etc,   Ry.   Co.,   6   Cal.   App.    715; 

93  Pac.  122;  California  Wine  Ass'n  v.  Com- 
mercial Union  Fire  Ins.  Co.,  159  Cal.  49; 
112  Pac.   858);   but,  since  the   amendment 


of  1909,  it  is  discretionary  with  the  court 
to  submit  special  issues  to  the  jury  in 
certain  cases.  O'Connell  v.  United  Rail- 
roads, 19  Cal.  App.  36;  124  Pac.  1022, 
Notwithstanding  a  compulsory  provision 
that  the  court  shall,  ujion  the  request  of  a 
[larty,  direct  the  jury  to  find  in  writing 
upon  all  or  any  of  the  issues,  it  still  has 
the  iiovver  to  <ict('rniiii(,'  whether  or  not  a 
question  proftounded  is  proi)er  for  submis- 
sion. Pigeon  v.  Fuller,  156  Cal.  691;  105 
Pac.  976.  Whether  special  issues  are  dis- 
cretionary or  compulsory,  it  is  the  duty  of 
the  court,  in  the  submission  of  issues, 
to  require  such  answers  as  will  supjiort  the 
general  verdict;  or  if  not  made,  to  reject 
that  verdict.  O'Connell  v.  Unite<l  Rail- 
roads, 19  Cal.  App.  36;  124  Pac.  1022.  The 
request  that  special  issues  be  submitted  to 
the  jury  is  addressed  to  the  discretion  of 
the  court;  and  the  refusal  to  grant  the  re- 
quest is  not  the  subject  of  an  exception. 
Smith  V.  Occidental  etc.  S.  S.  Co.,  99  Cal. 
462;  34  Pac.  84;  Schultz  v.  McLean,  109 
Cal.  437;  42  Pac.  557;  George  v.  Los 
Angeles  Ry.  Co.,  126  Cal.  357;  77  Am.  St. 
Rep.  184;  46  L.  R.  A.  829;  58  Pac.  819. 
Where  the  same  issue  or  question  of  fact 
is  involved  in  another  special  issue  or 
question  of  fact,  the  court  may  refuse  to 
submit  a  special  issue  which  is  but  a 
repetition,  in  form  or  substance,  of  the 
one  given.  Irrgang  v.  Ott,  9  Cal.  Ai)p. 
440;  99  Pac.  528.  In  an  action  for  the  re- 
covery of  money  only,  the  court  has  dis- 
cretion to  submit  or  to  refuse  to  submit 
particular  questions  of  fact  to  the  jury; 
and  error  cannot  be  maintained  without  a 
clear  showing  of  abuse  of  discretion.  Olm- 
stead  v.  Dauphiny,  104  Cal.  635;  38  Pac. 
505.  The  statute  does  not  require  that 
the  contest  of  the  account  of  an  executor 
shall  be  submitted  to  a  jury  on  the  demand 
of  a  party  in  interest.  Estate  of  Sander- 
son, 74  Cal.  199;  15  Pac.  753.  The  court 
may,  by  request  of  counsel,  direct  the 
jury  to  find  specially  upon  the  corporate 
existence  of  a  party,  in  addition  to  the 
general  verdict.  Fresno  Canal  etc.  Co.  v. 
Warner,  72  Cal.  379;  14  Pac.  37.  When 
counsel  frame  a  proper  request,  it  becomes 
the  duty  of  the  court  to  give,  in  its  own 
language,  the  short  and  simple  direction 
prescribed  by  the  statute.  Plyer  v.  Pacific 
etc.  Cement  Co.,  152  Cal.  125;  92  Pac.  56. 
The  court  has  a  discretion  to  change  the 
phraseology  of  a  special  issue  submitted  to 
the  jurv.  Miller  v.  Fireman's  Fund  Ins. 
Co.,  6  Cal.  App.  395;  92  Pac.  332.  What 
the  judge  has  to  determine  is.  whether  the 
party  presenting  the  interrogatories  has 
a  right  to  demand  their  submission  to  the 
jury  in  the  form  in  which  they  are  pre- 
sented. Plyer  v.  Pacific  etc.  Cement  Co.. 
152  Cal.  125;  92  Pac.  56. 

Submission  without  request.  Since  the 
amendment  of  this  section  in  1900,  the 
court,  in  certain  actions,  has  statutory  au- 


§625 


VERDICT. 


672 


tbority,  without  the  request  of  either 
party,  to  submit  special  issues  to  the  jury, 
in  addition  to  a  general  verdict.  Wiencke 
V.  Bibby,  15  Cal.  App.  50;  113  Pac.  876. 

SufB.ciency  of  request.  The  propriety  of 
a  request  for  special  findings  depends 
upon  two  conditions:  1.  Is  the  question  so 
framed  as  to  admit  of  a  plain  and  direct 
answer?  2.  Would  an  answer,  favorable 
to  the  party  preferring  the  request,  be  in- 
consistent with  a  general  verdict  for  his 
adversary?  and  if  either  of  these  queries 
can  be  answered  in  the  negative,  the  court 
is  justified  in  refusing  to  submit  the  issue. 
Fujise  V.  Los  Angeles  Ry.  Co.,  12  Cal.  App. 
207;  107  Pac.  317;  Pigeon  v.  Fuller,  156 
Cal.  691;  105  Pac.  976. 

Waiver  of  request.  The  reception  and 
entry  of  a  verdict,  without  objection  on 
the  part  of  the  defendant,  is  a  waiver  of 
his  request  for  special  findings.  Brown  v. 
Central  Pacific  R.  R.  Co.,  2  Cal.  Unrep. 
730;  12  Pac. '512. 

Requirements  as  to  interrogatories. 
There  is  no  requirement  that  the  inter- 
rogatories shall  be  submitted  to  opposing 
counsel;  or  that  they  shall  be  so  framed 
that  the  jury  may  answer  by  a  simple  yes 
or  no.  Plver  v.  Pacific  etc.  Cement  Co., 
152  Cal.  125;  92  Pac.  56. 

Findings  of  court  are  special  verdict. 
The  court  discharges  the  functions  of  a 
jury  in  passing  upon  an  issue  of  fact,  be- 
sides performing  its  peculiar  and  appro- 
priate duty  of  deciding  the  law  where  the 
jury  is  waived;  and  so  far  as  it  acts 
as  a  jury,  it  is  subject  to  the  same  rules 
and  is  entitled  to  the  same  privileges,  with 
the  exception  of  the  mode  of  rendering 
its  decision,  for  its  verdict  must  in  all 
cases  be  special.  Breeze  v.  Dovle,  19  Cal. 
101. 

Judgment  on  verdict.  The  court  can- 
not give  a  judgment  contrary  to  a  general 
verdict,  except  in  the  single  instance 
where  the  special  verdict  is  inconsistent 
■with  the  general  verdict;  and  a  finding  by 
the  jury  in  a  lesser  sum  than  the  amount 
■claimed  under  an  insurance  policy  is  not 
such  proof  of  fraud  as  will  make  a  general 
verdict  inconsistent  with  a  special  verdict. 
'Obersteller  v.  Commercial  Assur.  Co.,  96 
Cal.  645;  31  Pac.  587;  Portland  Cracker 
■Co.  v.  Murphy,  130  Cal.  649;  63  Pac.  70. 
Where  the  jury  find  on  special  issues,  and 
also  find  a  general  verdict  for  the  plain- 
tiff, and  the  court  thereupon  declares  that, 
•on  the  findings,  the  defendant  must  have 
judgment,  and  some  of  the  jury  then  dis- 
sent from  the  special  verdict,  and,  on 
Taeing  sent  out  again,  return  with  the  gen- 
eral verdict,  but  are  unable  to  agree  on  a 
special  verdict,  it  is  error  to  accept  the 
general  verdict.  Fitzpatrick  v.  Himmel- 
mann,  48  Cal.  588.  Where  general  and 
special  issues  are  submitted,  and  the  jury 
:£nd   on   the   special   issues   alone,   and   do 


not  render  a  general  verdict,  it  is  error  for 
the  court  to  render  final  judgment.  Kiel 
v.  Eeay,  50  Cal.  61.  Enough  must  be 
found  by  a  special  verdict  or  finding,  when 
that  is  relied  upon  as  the  basis  of  a  judg- 
ment, to  show  a  legal  conclusion  of  lia- 
bility. Garfield  v.  Knight's  Ferry  etc. 
WaterCo.,  17Cal.  510. 

Presumptions  as  to  verdict.  Presump- 
tions of  law  may  be  indulged  in  by  the 
court;  but  it  cannot  indulge  in  inferences 
of  fact  as  to  matters  bearing  upon  the 
issues  presented  to  the  jury;  and  if  an  ulti- 
mate fact  be  found  by  the  jury,  the  court 
must  declare  that  a  certain  particular 
judgment  follows  as  matter  of  law.  Estate 
of  Benton,  131  Cal.  472;  63  Pac.  775.  The 
presumption  is,  that  all  the  issues  pre- 
sented by  the  pleadings  were  submitted  to 
the  jury  under  proper  iustructions,  and 
were  passed  upon  in  arriving  at  their  ver- 
dict. Horwege  v.  Sage,  137  Cal.  539;  70 
Pac.  621.  A  general  verdict  upon  issues 
and  evidence  properly  submitted  is  pre- 
sumed to  decide  every  fact  or  deduction 
therefrom  essential  to  support  it,  while  a 
special  verdict  is  limited  and  controlled  by 
its  specific  terms.  Spear  v.  United  Rail- 
roads, 16  Cal.  App.  637;  117  Pac.  956. 

Terms  compared  and  defined.  Within 
the  meaning  of  this  section,  "special  ver- 
dicts" and  "special  findings"  are  identical 
in  everything  except  the  name;  and  it  is 
wholly  immaterial  if  the  request  of  a  party 
happens  to  be  wrongly  entitled;  the  term 
"special  verdict"  does  not  mean  what  it 
originally  meant  in  the  common-law  prac- 
tice, namely,  a  finding  upon  every  ma- 
terial issue  in  the  case;  this  section 
authorizes  the  demand  for  special  verdicts 
on  any  one  or  more  of  the  issues  or  par- 
ticular questions  of  fact.  Plyer  v.  Pacific 
etc.  Cement  Co.,  152  Cal.  125;' 92  Pac.  56. 

Appeal.  The  sufl^ciency  of  the  verdict 
to  support  the  judgment  cannot  be  con- 
sidered on  appeal  from  an  order  denying 
a  new  trial,  but  only  on  appeal  from  the 
judgment.  Morse  v.  Wilson,  138  Cal.  558; 
71  Pac.  801;  and  see  Brison  v.  Brison,  90 
Cal.  323;  27  Pac.  186;  Riverside  Water  Co. 
V.  Gage,  108  Cal.  240;  41  Pac.  299.  A 
verdict  for  "nominal  damages,"  in  favor 
of  the  plaintiff,  will  not  be  set  aside,  nor 
judgment  thereon  reversed,  on  the  ground 
that  that  term  is  not  definite  or  certain. 
Davidson  v.  Devine,  70  Cal.  519;  11  Pac. 
664.  A  general  verdict  is  controlled  by 
facts  specially  found;  hence,  objections  to 
instructions  in  favor  of  the  losing  party 
need  not  be  specially  noticed  on  appeal. 
Los  Angeles  Cemetery  Ass'n  v.  Los  An- 
geles, 103  Cal.  461;  37  Pac.  375. 

Common-law  power  and  duty  of  court  to  sub- 
mit proper  special  interrogatories  to  jury.  See 
note  15  Ann.  Cas.  469. 

CODE    COMMISSIONERS'    NOTE.      It    is    for 

the  court  to  determine  as  to  what  particular  facts 
the    jury    shall    find    specially,    and    neither    party 


673      RECOVERY   OF    MONEY — COUNTERCLAIM — PERSONAL    PROPERTY.       §§620,627 


has  the  ri;,'ht  to  dictate  the  terms  of  any  par- 
tii'ular  question  to  be  sul)niitted  to  the  jury. 
American  Company  v.  Bradford,  27  Cal.  304. 
AVhere  special  issues  have  been  sul)mitted  lo  a 
jury,  and  they  announce  that  tliey  cannot  aRree 
upon    the    special    issues,    but    can    ajjree    upon    a 


general  verdict,  and  by  consent  of  counsel  on  both 
sides  the  specinl  issues  are  withdrawn,  and  a 
Reni'ral  ver<iii't  is  n-reived,  it  is  not  error. 
Mitrholl  T.  llockett,  25  Cal.  5.SH,  .'J45;  »r>  Am. 
Dec.  151  ;  see  subd.  4  of  note  to  S  624,  ante. 


§  626.  Verdict  in  actions  for  recovery  of  money  or  on  establishing 
counterclaim.  When  a  verdiL't  is  i'ound  for  the  plaintiff  in  an  a<'tion  for 
tlie  recovery  of  money,  or  for  the  defendant,  when  a  eounterelaim  for  the 
recovery  of  money  is  established,  exceedint^;  the  amount  of  the  plaintiff's 
claim  as  established,  the  jury  must  also  find  the  amount  of  the  recovery. 

court;  and  where  the  action  was  properly 
one  at  law,  and  the  defense  was  equitable, 
such  findings  and  conclusions  must  be  re- 
garded fis  surplusage.  Diggs  v.  Porteus, 
o  Cal.  Uiiroj).  T.".:!;  X\  Pac.  417. 

Verdict  for  defendant  on  counterclaim. 
A  finding  for  the  defendant  for  costs, 
where  he  set  up  a  counterclaim  for  dam- 
ages, is  sufl^cient,  as,  if  the  .jury  found 
nothing  in  favor  of  the  plaintiff,  the  ver- 
dict must  necessarily  be  for  the  defendant, 
and  he  would  be  entitled  to  costs;  the  jury 
could  not  specify  the  amount  of  any  re- 
covery, for  there  could  be  no  recovery  by 
either  party.  Electric  Improvement  Co.  v. 
San  Jose  etc.  Ky.  Co.,  3  Cal.  Unrep.  618; 
31  Pac.  45.5. 

Verdict  covering  matters  not  in  issue. 
The  jury  having  nothing  to  do  with  mat- 
ters not  in  issue,  so  much  of  a  verdict  aa 
refers  to  such  matters  is  surplusage.  Pierce 
v.  Schaden,  62  Cal.  283. 

Verdict  in  action  for  damages.  Where 
the  i)laintiff  claims  two  elements  of  dam- 
age, a  general  verdict  for  him,  in  a  single 
sum,  cannot  be  upheld,  if  substantial  error 
was  committed  as  to  one  of  such  elements. 
Peek  V.  Steinberg,  163  Cal.  127;  124  Pac. 
834.  In  an  action  for  damages  for  false 
arrest  and  imprisonment,  the  jury  may 
consider  the  great  humiliation  and  anguish 
of  the  jilaintiff,  a  woman,  as  elements  in 
fixing  damages.  Sebring  v.  Harris,  20 
Cal.  App.  56;  128  Pac.  7. 


Legislation  S  626.      Enacted  March    11,    1873; 

1)nscd    on    Practice    Act,  §  171)  (New    York    Code, 

§263),    which    had    the    word  "shall"    instead    of 
■"must." 

Certainty  of  verdict.  A  verdict  for  a 
certain  amount,  less  another  amount  with 
interest,  is  insufficient,  the  interest  being 
indefinite  and  uncertain,  and  not  suscep- 
tible of  being  ascertained  from  the  plead- 
ings. Watson  V.  Damon,  54  Cal.  278; 
Dougherty  v.  Haggin,  56  Cal.  522.  Wliere 
the  record  and  the  verdict,  taken  together, 
show  the  exact  sum  which  the  jury  meant 
to  find,  the  judgment  is  not  void.  Hutchin- 
son V.  Superior  Court,  61  Cal.  119.  Where 
there  is  no  controversy  as  to  the  amount 
claimed  by  the  plaintiff,  and  the  only 
issue  was  as  to  whether  the  plaintiff  con- 
tracted with  the  defendant,  a  fiuiiing  by 
the  jury  for  the  plaintiff  is  sufficient.  Red- 
mond V.  W^eismaiin,  77  Cal.  423;  20  Pac. 
544.  A  general  verdict  on  a  promissory 
note,  where  there  was  no  issue  as  to  exe- 
cution, terms,  or  amount,  the  only  defense 
being  want  of  consideration,  is  responsive 
to  the  issue  raised,  and  sufficiently  certain. 
Hutchinson  v.  Superior  Court,  61  Cal.  119. 
Where  the  complaint  averred  that  the 
plaintiff  was  entitled  to  five  hundred  inches 
of  water  under  a  four-inch  pressure,  and 
the  jury  found  that  he  was  entitled  to 
forty  inches,  miner's  measurement,  the 
verdict  is  uncertain,  as  miners'  measure- 
ments vary  in  different  localities.  Dough- 
erty v.  Haggin,  56  Cal.  522.  An  uncertain 
verdict  cannot  be  made  certain  by  findings 
of    fact    and   conclusions   of     law    bv    the 


CODE 

Franklin, 


COMMISSIONERS'     NOTE.       Guy     v. 
5  Cal.  417;  Duff  v.  Hobbs,   19  Cal.  646. 


§  627.    Verdict  in  actions  for  the  recovery  of  specific  personal  property. 

In  an  action  for  the  recovery  of  specific  personal  property,  if  the  property 
has  not  been  delivered  to  the  plaintiff,  or  the  defendant,  by  his  answer, 
claim  a  return  thereof,  the  jury,  if  their  verdict  be  in  favor  of  the  plain- 
tiff, or,  if  being  in  favor  of  defendant,  they  also  find  that  he  is  entitled  to 
a  return  thereof,  must  find  the  value  of  the  property,  and,  if  so  instructed, 
the  value  of  specific  portions  thereof,  and  may  at  the  same  time  assess  the 
damages,  if  any  are  claimed  in  the  complaint  or  answer,  which  the  pre- 
vailing party  has  sustained  by  reason  of  the  taking  or  detention  of  such 
property. 


Jury  must  find,  etc.     See  post,  §  667. 

Legislation  «  627.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  177  (New  York  Code, 
§'J61),  which  had  the  word  "shall"  instead  of 
■"must."' 

2.  Amended  by  Code  Amdts.  1873-74.  p.  311, 
1  Fair. — 43 


(1)  omittins  the  word  "the"  after  "in  favor  of." 
and  (2)  adding  "and,  if  so  instructed,  the  value 
of  specific  portions  thereof." 

Return   of  property.     The   plaintiff  has 
the  privilege  of  claiming  delivery  at  any 


§627 


VERDICT. 


674 


time  before  the  filing  of  the  answer,  but 
it  is  not  compulsory  on  him  to  do  bo.  Well- 
man  V.  English,  38  Cal.  583.  Judgment 
cannot  be  entered  on  a  verdict  on  a  finding 
in  favor  of  the  defendant  for  half  of 
certain  personal  property,  for  the  recovery 
of  vrhich  the  plaintiff  has  sued:  the  jury 
should  be  directed  by  the  court,  on  its 
own  motion,  to  retire  and  find  as  to  the 
other  half  (Muller  v.  Jewell,  66  Cal.  216; 
5  Pac.  84) ;  but  the  plaintiff  is  precluded 
from  any  further  litigation  with  the  de- 
fendant, where  only  a  portion  of  the  prop- 
erty sued  for  is  granted  him,  and  the 
verdict  is  silent  as  to  the  remainder:  it 
must  be  held  that  the  plaintiff  was  de- 
nied any  further  relief  than  that  granted. 
Eyan  v.  Fitzgerald,  87  Cal.  345;  25  Pac. 
546.  Where  the  recovery  of  the  property 
is  the  primary  object  of  the  suit,  as  where 
damages  will  not  compensate  the  plaintiff, 
he  should  frame  his  bill  in  equity,  specify- 
ing the  reasons  therefor,  and  a  decree  can 
then  be  so  framed  as  to  compel  a  specific 
delivery.  Nickerson  v.  Chatterton,  7  Cal. 
568. 

Value  of  property,  and  damages.  A 
special  verdict  as  to  value  is  a  statutory 
requisite.  Pico  v.  Pico,  56  Cal.  453.  The 
value  of  any  specific  portion  of  property 
is  to  be  found  by  the  jury,  only  if  so  in- 
structed; and  error  can  arise  in  a  case, 
only  where  such  instruction  is  pertinent 
and  proper,  and  the  instruction  was  asked 
and  refused.  Whetmore  v.  Rupe,  65  Cal. 
237;  3  Pac.  851;  Brenot  v.  Robinson,  108 
Cal.  143;  41  Pac.  37;  Kellogg  v.  Burr,  126 
Cal.  38;  58  Pac.  306.  Where  delivery  of 
the  property  is  made  to  the  plaintiff  be- 
fore the  judgment,  a  judgment  in  his  favor 
for  its  possession  is  sufiicient.  Claudius  v. 
Aguirre,  89  Cal.  501;  26  Pac.  1077.  Where 
the  defendant  was  entitled  to  the  prop- 
erty at  the  commencement  of  the  action, 
but  such  right  ceased  and  vested  in  the 
plaintiff  before  the  trial,  the  judgment 
should  leave  the  property  in  the  plaintiff's 
possession,  and  award  costs  to  the  defend- 
ant. O'Connor  v.  Blake,  29  Cal.  312;  Flinn 
v.  Ferry,  127  Cal.  648;  60  Pac.  434.  Dam- 
ages for  the  detention  of  the  property 
may  be  recovered  by  the  plaintiff,  but  not 
money  expended  by  him  in  its  pursuit, 
as  in  actions  for  conversion.  Kelly  v. 
McKibben,  54  Cal.  192,  Where  the  court 
instructed  the  jury  to  render  a  verdict 
for  the  plaintiff  for  the  property,  and 
to  find  the  value  of  the  property  and 
the  damages,  and  the  jury  found  and  re- 
turned a  verdict  for  the  plaintiff  for  the 
value  of  the  property  and  for  damages, 
but  did  not  find  for  the  plaintiff  for  the 
property,  the  verdict,  and  the  judgment 
thereon,  are  erroneous,  as  the  plaintiff 
could  not  elect  to  deliver  the  property. 
Noreross  v.  Nunan,  61  Cal.  640. 

Alternative  judgment  for  return  and 
value.     The  plaintiff  may  require  the  jury 


to  find  the  value  of  the  property,  and  he 
may  insist,  as  a  right,  upon  the  alternative 
judgment.  Clary  v.  Rolland,  24  Cal.  147; 
Mills  V.  Gleason,  21  Cal.  274.  Where  the 
jury  find  for  the  defendant,  and  fix  the 
value  of  the  property,  a  judgment  for 
the  return  of  the  property,  or  for  the  value 
thereof  in  case  delivery  cannot  be  had,  is- 
justified.  Etchepare  v.  Aguirre,  91  Cal. 
288;  25  Am.  St.  Rep.  180;  27  Pac.  668. 
Where  the  jury  find  the  right  of  possession 
to  be  in  the  plaintiff,  the  right  to  its  de- 
livery if  it  can  be  had,  and  if  not,  then 
to  its  value  as  found  by  the  jury  in  the 
alternative,  is  a  conclusion  of  law  which 
the  judgment  must  contain,  but  not  the 
verdict.  Ryan  v.  Fitzgerald,  87  Cal.  345; 
25  Pac.  546.  It  is  not  necessary  for  the 
court  to  find  the  character  or  value  of 
the  property  which  can  be  returned,  where 
such  fact  appears  at  the  trial,  nor  is  the 
court  bound  to  enter  judgment  in  the  al- 
ternative. Burke  v.  Koch,  75  Cal.  356; 
17  Pac.  28;  Brown  v.  Johnson,  45  Cal.  76; 
Whetmore  v.  Rupe,  65  Cal.  237;  3  Pac. 
851.  The  value  of  the  property  may  be 
found  by  the  jury,  if  their  verdict  is  in 
favor  of  the  plaintiff,  only  if  the  property 
has  not  been  delivered  to  the  plaintiff,  and^ 
conversely,  if  the  property  has  been  deliv- 
ered to  the  plaintiff,  they  are  not  required 
to  find  the  value;  and  in  the  absence  of 
such  finding,  there  is  no  verdict  upon 
which  to  base  an  alternative  judgment. 
Claudius  V.  Aguirre,  89  Cal.  501;  26  Pac. 
1077;  Caruthers  v.  Hensley,  90  Cal.  559; 
27  Pac.  411;  Seligman  v.  Armando,  94 
Cal.  314;  29  Pac.  710;  Erreca  v.  Meyer, 
142  Cal.  308;  75  Pac.  826.  Where  the 
property  has  been  delivered  to  the  plain- 
tiff, a  defendant  who  recovers  a  judgment 
is  entitled  to  a  judgment  for  a  return  of 
all  the  property;  and  if  it  cannot  be  re- 
turned, then  to  a  judgment  for  the  value 
of  the  whole.  Whetmore  v.  Rupe,  65  Cal. 
237;  3  Pac.  851.  The  defendant  must,  in 
his  answer,  assert  his  formal  claim  for  the 
return  as  a  prerequisite  to  a  judgment 
for  the  return  of  the  property  or  its  value. 
Pico  V.  Pico,  56  Cal.  453;  Banning  v.  Mar- 
leau,  101  Cal.  238;  35  Pac.  772.  There  is 
no  difference,  in  principle,  between  a  judg- 
ment for  the  value  of  the  property  sued 
for  without  the  alternative  for  its  deliv- 
ery, and  a  judgment  for  the  delivery  of 
the  property  without  the  alternative  for 
its  value:  if  the  former  is  free  from  error^ 
the  latter  must  be  equally  so.  Claudius  v. 
Aguirre,  89  Cal.  501;  26  Pac.  1077;  Burke 
v.  Koch,  75  Cal.  356;  17  Pac.  228. 

Judgment  on  nonsuit.  This  section  does 
not  apply  to  cases  of  nonsuit.  Ginaca  v. 
Atwood,  8  Cal.  446;  Clary  v.  Rolland,  24 
Cal.  147.  To  enable  the  defendant  to  ob- 
tain the  value  of  property  on  a  judgment 
of  dismissal  against  the  plaintiff  for  fail- 
ure to  appear,  the  answer  must  contain, 
some  allegation  or  prayer  relative   to  the 


G75 


CONSTR  UCTION — ENTRY — CORRECTION — J  UDG  M  ENT. 


§628 


change  of  possession  from  the  defendant 
to  the  jdaintiff:  the  judgment  of  return 
is  in  the  nature  of  a  cross-judgment,  and 
must  be  based  upon  proper  averments. 
Gould  V.  Scannell,  13  Cal.  430;  Tico  v. 
Pico,  56  Cal.  453;  Banning  v.  Marleau,  101 
Cal.  238;  35  Pac.  772.  Upon  a  dismissal 
by  the  plaintiff,  the  questions  which  should 
have  been  determined  are  left  open  to  dii- 
termiuiition  in  an  action  on  the  replevin 
bond.    Mills  V.  Gloason.  21  Cal.  274. 

Construction  of  verdict  by  court.  Where 
the  form  of  the  verdict  is  not  satisfactory 
to  a  party,  he  should  ask,  at  the  time,  to 
have  it  made  formal  and  certain;  other- 
wise it  is  the  duty  of  the  court  so  to  con- 
strue it  as  to  give  it  the  effect  intended 
by  the  jury,  if  it  is  susceptible  of  a  con- 
struction which  may  have  a  lawful  and 
relevant  effect.  Johnson  v.  Visher,  96  Cal. 
310;  31  Pac.  100. 


Appeal.  A  party  will  not  be  heard  to 
object  to  a  verdict  for  the  first  time  on 
appeal  from  the  judgment,  if  it  is  suscep- 
tible of  a  construction  which  may  have  a 
lawful  and  relevant  effect.  Johnson  v. 
Visher.  96  Cal.  310;  31  Pa.-.  106. 

Measure  of  damages  recoverable  in  replevin. 
Sec  tiu'e  '22  .\m.  Kii».  '_'>■'"). 

Right  of  defendant  In  replevin  to  compensation 
for  depreciation  in  value  of  property  returned. 
Sep  note  2  Aim.  ('as.  901. 

Punitive  damages  in  replevin  or  claim  and  de- 
livery.    See  note  A  .\t\u.  Cas.  71. 

Effect  on  verdict  in  replevin  of  failure  to  find 
unlawful  taking  or  detention.  See  note  20  Ann. 
Cas.   i:!0. 

Necessity  that  verdict  In  replevin  give  separate 
valuation  of  several  articles  involved.  Sec  note 
Ann.  Cas.  1912D,  819. 

Requisites  of  special  verdict  in  action  of  re- 
plevin.    See  note  24  I>.  R.  A.  (X.  S.)  18. 

CODE  COMIIISSIONERS'  NOTE.  Xirkorson  v. 
Chatterton,  7  Cal.  5G8 ;  Waldraan  v.  Broder,  10 
Cal.  379;  Coghill  v.  Boring,  15  Cal.  218;  Mills 
V.  Gleason,  21  Cal.  274. 


§  628.  Entry  of  verdict.  Upon  receiving  a  verdict,  an  entry  must  be 
made  by  the  clerk  in  the  minutes  of  the  court,  specifying  the  time  of  trial, 
the  names  of  the  jurors  and  witnesses,  and  setting  out  the  verdict  at 
length ;  and  where  special  verdict  is  found,  either  the  judgment  rendered 
thereon,  or  if  the  Case  be  reserved  for  argument  or  further  consideration, 
the  order  thus  reserving  it. 

in  the  complaint;  the  verdict  cannot  go 
beyond  the  issues,  and  the  surplus  matter 
may  be  disregarded  in  entering  judgment. 
Marquard  v.  Wheeler,  52  Cal.  445. 

Judgment  rendered  •when.  The  judg- 
ment is  not  always  rendered  immediately 
after  the  rendition  of  the  verdict,  nor 
even  after  the  filing  of  the  finding  of  facts 
by  the  judge  or  referee.  Gray  v.  Palmer, 
28  Cal.  416.  Where  there  is  no  question  as 
to  the  proper  judgment  to  be  entered  on 
the  verdict,  the  judgment  should  be  en- 
tered at  once,  without  waiting  for  a  motion 
for  a  new  trial,  or  any  proceedings  to  set 
aside  the  verdict  (Hutchinson  v.  Bours, 
13  Cal.  50);  but  the  rendition  of  judgment 
on  a  special  verdict  is  often  reserved  for 
argument  or  further  consideration,  and  it 
frequently  happens  that  judgment  cannot 
be  rendered  for  several  months  after  the 
rendition  of  the  verdict  or  the  filing  of 
the  findings  of  facts.  Gray  v.  Palmer,  28 
Cal.  416. 


Legislation  S  628.      Enacted  March   11,    1873  5 

ba.sed  on   PraL-ticc  Act,  §  178. 

Construction  of  section.  The  matters 
mentioned  in  this  section  form  a  con- 
nection between  the  pleadings  and  the 
judgment,  being  a  digression  in  the  pro- 
gress of  the  trial  from  the  general  course 
of  procedure,  and  are  properly  evidenced 
by  a  permanent  memorandum  thereof  for 
the  guidance  of  the  court,  but  their  value 
ends  on  entry  of  judgment,  and  they  can- 
not be  used  to  im]ieach  the  record.  Von 
Schmidt  V.  Widber,  99  Cal.  511;  34  Pac.  109. 

Entry  of  verdict  presumed  correct.  The 
verdict  is  part  of  the  judgment  roll;  and 
where  the  clerk  properly  certifies  the  tran- 
script on  a]ipeal  as  being  an  authentie 
copy  of  the  judgment  roll,  and  the  verdict 
appears  therein,  it  will  be  presumed  that 
it  was  properly  recorded  and  entered  by 
the  clerk  in  the  minutes  of  the  court.  Gold- 
man V.  Eogers,  85  Cal.  574;  24  Pac.  782. 

/.Itcrr.tion  or  correction  of  vordict.  The 
court  acts  upon  the  verdict  as  it  is,  and 
not  as  it  should  be  (People  v.  Hill,  16 
Cal.  113);  and  it  cannot  enter  a  verdict 
contrarv  to  the  will  of  the  jury.  Mont- 
gomery"'v.  Sayre,  91  Cal.  206;  27' Pac.  648. 
The  right  to  correct  an  unsatisfactory 
verdict  does  not  depend  upon  the  judg- 
ment, but  all  questions  of  this  character 
should  be  settled  before  the  final  action  of 
the  court.     People  v.  Hill,  16  Cal.  113. 

Verdict  and  judgment  must  follow  issues. 
To  render  a  judgment  payable  in  gold 
coin  is  error,  even  if  the  verdict  specifies 
gold  coin,  where  the  agreement  does  not 
call  for  gold  coin,  and  it  is  not  demanded 


CODE  COMMISSIONERS'  NOTE.  The  verdict 
should  be  recorded  as  reiul-red.  Moody  v.  Mc- 
Donald, 4  Cal.  297.  Under  the  code,  it  must 
be  rendered  in  writing.  Ante,  §  618.  If  an  in- 
formal verdict  is  recorded  with  consent  of  the 
prevailing  party,  and  judgment  in  form  is  after- 
wards entered  thereon,  the  informality  will  be 
disregarded.  Tre.idwell  v.  Wells,  4  Cal.  263.  Be- 
fore a  verdict  is  recorded,  it  ought  to  be  declared 
by  the  foreman,  or,  if  sealed,  read  by  the  clerk, 
so  that  the  parties  may  be  distinctly  informed  of 
its  purport.  It  is  irregular  to  record  the  verdict 
before  it  is  thus  announced,  but  the  irregularity 
must  be  objected  to  at  the  time,  or  it  will  not 
be  noticed  on  appeal.  Assent  to  a  recorded  ver- 
dict, expressed  by  the  foreman,  is  conclusive 
upon  all  the  jury,  unless  a  disagreement  is  ex- 
pressed at  the  time.  Blum  v.  Pate,  20  Cal.  69; 
but  see  §§  618,  619,  ante. 


§631 


TRIAL  BY   COURT. 


676 


CHAPTER  V. 

TRIAL  BY  COURT. 


§  631.    When    and    how    trial    by    jury    may    be 

waived. 
§  632.     Upon    trial    by    court,    decision    to    be    in 

writing  and  filed  within  thirty  days. 
§  633.     Facts  found   and   conclusions  of  law  must 


be  separately  stated.    Judgment  on. 
§  634.     Waiving  findings  of  fact. 
§635.     Findings,  how  prepared.     [Repealed.] 
§  636.    Proceedings   after   determination   of   issue 

of  law. 


§  631.  When  and  how  trial  by  jury  may  be  waived.  Trial  by  jury  may 
be  Avaived  by  the  several  parties  to  an  issue  of  fact  in  actions  arising  on 
contract,  or  for  the  recovery  of  specific  real  or  personal  property,  with  or 
without  damages,  and  with  the  assent  of  the  court  in  other  actions,  in 
manner  following: 

1.  By  failing  to  appear  at  the  trial. 

2.  By  written  consent  filed  with  the  clerk. 

3.  By  oral  consent,  in  open  court,  entered  in  the  minutes. 

4.  By  failing  to  announce  that  a  jury  is  required,  at  the  time  the  cause  is 
first  set  upon  the  trial  calendar  if  it  be  set  upon  notice  or  stipulation,  or 
within  five  days  after  notice  of  setting  if  it  be  set  without  notice  or 
stipulation. 

5.  By  failing,  at  the  beginning  of  each  day's  session,  to  deposit  wath  the 

clerk  the  jury  fees  and,  if  there  be  any,  the  mileage  for  such  day. 

to  appear,  although  the  judge,  on  receipt 
of  a  telegram  from  the  defendant  the  day 
before  the  trial,  had  ordered  a  jury  (Mc- 
Guire  v.  Drew,  83  Cal.  225;  23  Pac.  312); 
but  the  failure  of  the  defendant  to  appear 
at  the  trial,  when  the  case  was  improperly 
on  the  equity  calendar,  and  he  hsd  no 
notice  thereof,  is  not  a  waiver.  Sweeney 
V.  Stanford,  60  Cal.  362. 

Stipulation  as  waiver.  A  stipulation 
should  not  be  regarded  as  a  contract  made 
upon  a  valuable  consideration,  which 
should  not  be  set  aside  except  for  fraud 
or  mistake;  and  relief  should  be  had  there- 
from, where  neither  party  would  be  in- 
jured, nor  the  orderly  conduct  of  the  busi- 
ness of  the  court  disarranged.  Ferrea  v. 
Chabot,  121  Cal.  333;  53  Pac.  689,  1092.  A 
stipulation  of  attorneys  to  set  a  case  for 
trial  on  a  day  certain,  before  a  department 
then  known  to  be  engaged  in  the  trial  of 
causes  without  a  jury,  is  not  a  waiver  of 
the  right  to  a  trial  hy  jury:  such  right 
cannot  be  waived  by  implication.  Piatt 
V.  Havens,  119  Cal.  244;  51  Pac.  342. 

Oral  consent  as  waiver.  An  oral  agree- 
ment, made  in  open  court,  to  waive  a  trial 
by  jury  upon  a  counter-agreement  to  trans- 
fer the  cause  to  another  department,  so 
as  to  secure  delay,  cannot  be  avoided  be- 
cause not  entered  in  the  minutes.  Hawes 
V.  Clark,  84  Cal.  272;  24  Pac.  116. 

Trial  by  court,  without  objection,  as 
waiver.  There  is  a  waiver  of  trial  by  jury, 
where  counsel  for  the  defendant  appears, 
and  the  cause  is  tried  by  the  court  without 
objection  (Boston  Tunnel  Co.  v.  McKen- 
zie,  67  Cal.  485;  8  Pac.  22) ;  and  also  where 
the  parties  go  to  trial  without  demanding 


Waiver  of  jury  trial.     See  Const.,  art.  I,  §  7. 
Waiverof  jury,  injustice's  court.     Seepost,  §  883. 

Legislation  §  631.  1.  Enacted  March  11,  1873; 
re-enactment  of  Practice  Act,  §  179. 

2.  Amended  by  Code  Amdts.  1873-7-i,  p.  311, 
(1)  in  the  first  paragraph,  (a)  adding  "or  for 
the  recovery  of  specific  real  or  personal  property, 
with  or  without  damages,"  and  (b)  omitting  the 
word  "the"  before  "manner";  (2)  omitting  the 
final  paragraph,  which  read:  "The  court  may  pre- 
scribe by  rule  what  shall  be  deemed  a  waiver  in 
other  eases." 

3.  Amendment  by  Stats.  1901,  p.  146:  un- 
constitutional.    See  note  ante,  §  5. 

4.  Amended  by  Stats.  1915,  p.  649,  (1)  in 
subd.  2,  striking  out  the  phrase  "in  person  or 
by  attorney,"  after  "written  consent";  (2)  add- 
ing subds.  4  and  5. 

Coastruction  of  section.  A  jury  may  be 
waived  only  in  one  of  the  modes  prescribed 
by  this  section.  People  v.  Metropolitan 
Surety  Co.,  164  Cal.  174;  128  Pac.  324. 

Constitutional  provision.  The  provision 
of  the  constitution  securing  the  right  to  a 
trial  by  jury  refers  generally  to  those 
cases  in  which  such  right  existed  at  com- 
mon law  at  the  time  of  the  adoption  of 
the  constitution.  Woods  v.  Varnum,  85 
Cal.  639;  24  Pac.  843;  and  see  Grim  v. 
Norris,  19  Cal.  140;  79  Am.  Dec.  206. 

Waiver  by  failure  to  appear.  The  fail- 
ure of  either  party  to  appear  at  the  trial 
operates  as  a  consent,  on  his  part,  that 
the  issue  shall  be  tried  by  the  court  with- 
out a  jury;  but  failure  to  appear  does  not 
authorize  the  trial  to  be  had  by  a  jury 
of  less  than  twelve  persons.  Gillespie  v. 
Benson,  18  Cal.  409.  The  absence  of  the 
defendant  is  a  waiver  of  the  right  to  a 
trial  by  jury;  and  the  mere  filing  of  an 
answer  does  not  constitute  an  appearance 
(Zane  v.  Crowe,  4  Cal.  112);  and  there  ia 
also   a  waiver,  where  the   defendant  fails 


677 


WAIVER — DEMAND  FOR  JURY — RULES   OF   COURT — EQUITY. 


§631 


a  jury  (Pfister  v.  Dascov,  65  Cal.  403;  4 
Pac.  393;  F^errea  v.  Chabot,  121  Cal.  233; 
53  Pac.  689);  and  also  where  the  case 
comes  on  regularly  for  trial  before  the 
court  without  a  jury,  and  the  trial  actually 
begins  (Polak  v.  Gurnee,  GG  Cal.  2G();  5 
Pac.  229);  and  also  where  the  verdict  of 
the  jury  is  treated  by  counsel  and  the 
court  as  of  no  effect  and  both  parties  pro- 
ceed to  try  the  case,  introduce  further 
evidence,  and  submit  the  case  for  decision 
and  judgment.  Montgomery  v.  Sayre,  3 
Cal.  I'jnrep.  3Go;  25  Pac.  552. 

Presumption  of  waiver.  The  presump- 
tion is,  that  the  defendant  waived  the 
right  to  trial  by  jury,  where  the  record 
on  appeal  is  silent  on  the  subject.  Mont- 
gomery V.  Sayre,  91  Cal.  206;  27  Pac.  G48; 
Leadbetter  v.'  Lake,  118  Cal.  515;  50  Pac. 
686.  The  right  to  a  jury  trial  should  not 
be  held  waived  by  implication.  People  v. 
Metroj.olitau  Sure\v  Co.,  16-1  Cal.  174;  128 
Pac.  .-524. 

Demand  for  jury.  It  is  not  necessary 
for  a  party  entitled  to  a  trial  by  jury  to 
make  any  demand  therefor;  and  where 
the  defendant  files  a  written  demand  for  a 
jury,  this  must  be  held  to  be  a  continued 
refusal  to  waive  the  right.  Swasev  v. 
Adair,  88  Cal.  179;  25  Pac.  1119.  Where 
a  demand  for  a  jury  must  be  considered  as 
a  continuous  refusal  to  waive  the  right,  it 
is  not  necessary  to  repeat  the  demand. 
Wendling  Lumber  Co.  v.  Glenwood  Lum- 
ber Co.,  19  Cal.  App.  1;  124  Pac.  734. 
Failure  of  the  defendant  to  demand,  on 
law-day,  a  trial  by  jury,  as  required  by 
the  rules  of  the  court,  is  not  a  waiver  of 
the  right  (Biggs  v.  Lloyd,  70  Cal.  447; 
11  Pac.  831);  nor  is  there  a  waiver,  where 
the  defendant,  by  reason  of  the  postpone- 
ment of  the  trial,  at  his  request,  from 
morning  until  the  afternoon,  prior  to  its 
commencement,  and  he  is  entitled  to  a  jury 
trial  if  he  demands  it  before  the  trial  actu- 
ally commences,  unless  he  has  waived  it  in 
one  of  the  wavs  prescribed  by  law.  Far- 
well  V.  Murray,  104  Cal.  464;  38  Pac.  199. 
A  telegraphic  demand  for  a  jury  trial,  sent 
to  the  judge  the  day  before  the  trial,  is 
not  sufficient,  even  where  the  judge,  upon 
the  receipt  of  the  telegram,  orders  a  jury, 
if  the  party  fails  to  appear  in  person  or 
by  counsel  at  the  trial.  McGuire  v.  Drew, 
83  Cal.  225;  23  Pac.  312.  Where  the  de- 
fendant demands  a  trial  by  jury,  and  the 
plaintiff  objects,  it  is  within  the  discre- 
tion of  the  court  to  require  the  defendant, 
as  a  condition  for  making  the  order,  to 
deposit  one  day's  per  diem  and  the  mile- 
age of  the  jury.  Hudson  v.  Hudson,  129 
Cal.  141;  61  Pac.  773;  and  see  Naphtaly  v. 
Rovegno,  130  Cal.  639;  63  Pac.  66. 

Rules  of  court.  The  legislature  alone 
has  the  power  of  declaring  what  shall  con- 
stitute a  waiver  of  trial  by  jury:  a  rule 
of  court  cannot  declare  what  shall  be  con- 


sidered such  a  waiver  (People  v.  Metro- 
politan Surety  Co.,  164  Cal.  174;  12S  Pac. 
324;  Biggs  v.  Lloyd,  70  Cal.  447;  11  Pac. 
831);  and  the  failure  of  the  defendant 
to  demand  a  trial  by  jury,  at  the  time  the 
case  is  set  for  trial,  as  called  for  by  the 
rules  of  the  court,  is  not  a  waiver  of 
the  right.  Biggs  v.  Lloy<l,  70  Cal.  4  47;  11 
Pac.  S31.  Where  a  ])roper  demand  for  a 
jury  is  made  and  entered  in  the  minutes 
of  the  court  when  the  case  is  originally 
set  for  trial,  and,  after  a  continuame,  both 
a  demand  and  deposit,  in  conformity  with 
a  rule  of  court,  are  made  when  the  case 
is  reset,  it  is  error  to  deny  a  jury  trial 
on  the  ground  that  it  has  been  waiveil. 
Wendling  Lumber  Co.  v.  Glenwood  Lumber 
Co.,  19  Cal.  App.  1;  124  Pac.  734.  A  rule 
of  the  court,  requiring  the  deposit  of  jury 
fees  within  five  days  after  making  demand 
for  a  jury,  is  reasonable;  and  if  not  com- 
plied with,  the  right  to  a  trial  by  jury 
is  waived  (Adams  v.  Crawford,  116  Cal. 
495;  48  Pac.  488);  and  a  rule  requiring 
the  deposit  of  twenty-four  dollars  upon 
demand  for  a  jury  is  reasonable.  Bank 
of  Lassen  County  v.  Sherer,  108  Cal.  513; 
41  Pac.  415.  A  party  is  not  entitled  to  a 
jury  trial  unless  he  deposits  the  jury  fees, 
as  required  bv  a  rule  of  court.  Naphtaly 
v.  Rovegno.  130  Cal.  639;  63  Pac.  66,  621. 
A  rule  of  the  court,  regulating  the  right 
of  a  paity  to  demand  a  jury  trial,  will  be 
ujiheld,  so  far  as  it  requires  a  deposit 
of  jury  fees  as  a  condition  to  the  insist- 
ence upon  such  right,  but  no  further.  Peo- 
ple V.  Metropolitan  Surety  Co.,  1G4  Cal. 
174;  128  Pac.  324.  The  rule  requiring  the 
jury  fees  to  be  paid  in  advance  is  a  rea- 
sonable precaution  to  prevent  jurors  from 
being  defrauded  by  unscrupulous  parties, 
and  to  prevent  the  demand  for  a  jury 
from  being  used  as  a  pretext  to  obtain 
continuances.  Conneau  v.  Geis,  73  Cal. 
176;  2  Am.  St.  Rep.  785;  14  Pac.  580.  A 
rule  of  the  court,  requiring  a  demand 
for  a  jury,  where  one  is  desired,  and  a 
deposit,  is  to  be  fairly  and  liberally 
construed  in  favor  of  the  demandant. 
Wendling  Lumber  Co.  v.  Glenwood  Lum- 
ber Co.,  19  Cal.  App.  1;  124  Pac.  734. 

Jury  denied  in  suits  in  equity.  A  de- 
mand for  a  trial  by  jury,  where  the  juris- 
diction is  in  equiiy,  which  can  afford 
complete  relief,  is  properly  denied  (Mesen- 
burg  v.  Dunn,  125  Cal.  222;  57  Pac.  887): 
the  parties  to  a  suit  in  equity  are  not  en- 
titled to  a  trial  by  jury.  Walker  v.  Sedg- 
wick, 5  Cal.  193;  Still  v,  Saunders,  8  Cal. 
281. 

Waiver  of  jury  as  affecting  right  to  jury  on 
sacond  trial.     See   noto  4   Ann.  Cas.    1004. 

CODE  COI.IMISSIONERS'  NOTE.  1.  Generally. 
The  right  to  a  trial  by  jury  may  be  waived  in 
the  mode  prescribed  bv  Inw.  Russell  v.  Klliott. 
2  Cal.  24,5;  Exline  v.  Smith.  5  Cal.  112:  Smith 
V.  Pollork,  2  Cal.  92.  A  party  cannot,  without 
objection,  try  his  case  before  the  court  without 
a   jury,   and  "then    complain   that   it   was   not   tn<-J 


§632 


TRIAL  BY   COURT. 


678 


2.  Failure  to  appear.  The  failure  to  appear 
at  the  trial  is  a  waiver  of  the  right  to  a  trial  by 
jurv.  Waltham  v.  Carson,  10  Cal.  178;  Doll  v. 
Fel'ler,  16  Cal.  432;  Gillespie  v.  Benson.  18  Cal. 
409.  Filing  an  answer  is  not  an  appearance, 
within  the  meaning  of  the  first  subdivision  of  this 
section.  Zane  v.  Crowe,  4  Cal.  112.  A  failure 
to  appear  does  not  authorize  a  trial  by  a  .iury  of 
less  than  twelve.  Gillespie  v.  Benson,  18  Cal. 
409.  Under  a  rule  of  court  requiring  a  party 
demanding  a  trial  by  .iury  to  file  a  written  notice 
with  the  clerk  six  days  before  the  commencement 
of  the  term,  it  was  held,  that  a  jury  was  waived 
by  the  parties  by  a  failure  to  file  the  notice  that 
a  .iury  will  be  required,  but  that  a  court  has  a 
right  to  direct  an  issue  of  fact  to  be  tried  by  a 
jury,  notwithstanding  the  parties  have  waived 
the  same.    Doll  v.  Anderson,  27  Cal.  250. 


by  jury  Smith  v.  Brannan,  13  Cal.  107;  Greason 
V.  Keteltas.  17  N.  Y.  498.  In  a  civil  case,  a 
party  mav  waive  a  beneficial  constitutional  pro- 
vision. Van  Hook  v.  Whitlock,  26  Wend.  43,  37 
Am.  Dec.  246;  7  Paige,  373;  2  Edw.  Ch.  304. 
And  having  once  waived  the  provision,  he  can- 
not subsequently  avail  himself  of  it  as  a  pro- 
tection. Tombs  V.  Rochester  etc.  R.  R.  Co.,  18 
Barb.  583;  Lee  v.  Tillotson.  24  Wend.  337;  35 
Am.  Dec.  624;  Baker  v.  Braman,  6  Hill,  47;  40 
Am.  Dec.  387;  Embury  v.  Conner,  3  N.  Y.  511; 
53  Am.  Dec  325.  In  criminal  cases,  parties  have 
not  the  power  to  modify,  by  their  consent,  the 
substantial  constitution  of  the  legal  tribunal  nor 
the  fundamental  mode  of  its  proceedings.  Can- 
cemi  V.  People,  16  N.  Y.  501;  People  v.  Cancemi, 
7  Abb.  Pr.  271.  A  prisoner  cannot  be  legally 
tried  or  convicted  on  the  verdict  of  eleven  jurors, 
although  he  consented  to  be  so  tried.  Cancemi 
V.  People,  supra. 

§  632.     Upon  trial  by  court,  decision  to  be  in  writing  and  filed  within 

thirty  days.     Upon  the  trial  of  a  question  of  fact  by  the  court,  its  decision 

must  be  given  in  writing  and  filed  with  the  clerk  within  thirty  days  after 

the  cause  is  submitted  for  decision. 

fact  and  conclusions  of  law  and  thereupon 
entered  judgment.  Sullivan  v.  Washburn 
etc.  Mfg.  Co.,  139  Cal.  257;  72  Pac.  992. 
The  decision  must  be  filed  before  judgment 
may  be  entered.  Shirran  v.  Dallas,  21  Cal. 
App.  405;  132  Pac.  454,  462. 

Time  prescribed  is  directory.  The  pro- 
vision of  this  section  requiring  the  court 
to  file  its  decision  in  writing  within  thirty 
days  after  submission  of  the  cause,  is 
directory  merely:  the  court  trying  a  case 
without  a  jury  may  file  its  findings  of  fact 
and  conclusions  of  law  after  the  time 
designated.  Vermule  v.  Shaw,  4  Cal.  214; 
Broad  v.  Murray,  44  Cal.  228;  McLennan 
V.  Bank  of  California,  87  Cal.  569;  25  Pac. 
760.  The  rights  of  the  parties  are  not  to 
be  prejudiced  by  the  delay  of  the  court  in 
respect  to  any  of  these  acts  or  proceed- 
ings; and  the  court  is  authorized  to  direct 
the  making  or  filing  of  its  findings  of  fact 
and  conclusions  of  law,  as  well  as  the  en- 
try of  a  judgment  thereon,  nunc  pro  tunc, 
as  of  such  date  as  will  preserve  such 
rights.  Fox  v.  Hale  etc.  Mining  Co.,  108 
Cal.  478;  41  Pac.  328.  The  filing  of  find- 
ings, more  than  six  months  after  judgment 
was  ordered  for  the  defendant,  is  not 
ground  for  a  new  trial,  nor  can  it  be  con- 
sidered on  appeal  by  the  plaintiff  from 
the  order  denying  a  new  trial.  Kepfler  v. 
Kepfler,  134  Cal.  205;  66  Pac.  208. 

Findings  unnecessary  when.  Findings 
of  fact  are  not  necessary  where  the  case 
is  submitted  upon  an  agreed  statement  of 
facts.  Earle  v.  Bryant,^  12  Cal.  App.  553; 
107  Pac.  1018. 

The  opinion.  The  opinion  of  the  court, 
expressed  from  the  bench,  in  deciding  a 
case,  is  no  part  of  its  decision.  American 
Well  etc.  Co.  v.  Superior  Court,  19  CaL 
App.  497;  126  Pac.  497.  The  opinion  of 
the  trial  court,  appearing  either  in  the 
briefs  or  in  the  record,  merely  indicates 
the  points  involved,  ami  the  views  of  the 
court    thereon,    and    cannot   be   considered 


Legislation  S  632.  1.  Enacted  March  11,  1873; 
based  on  the  first  sentence  of  Practice  Act,  §  180, 
which  read:  "Upon  the  trial  of  an  issue  of  fact 
by  the  court,  its  decision  shall  be  given  in  writ- 
ing, and  filed  with  the  clerk,  within  ten  days 
after  the  trial  took  place."  When  enacted  in 
1872,  the  section  read  as  at  present,  except  that 
(1)  it  had  the  word  "twenty"  instead  of  "thirty," 
and  (2)  at  the  end  of  the  section,  the  clause  "and 
unless  the  decision  is  filed  within  that  time  the 
action  must  again  be  tried." 

2.   Amended  by  Code  Amdts.  1873-74,  p.  312. 

Construction  of  section.  This  section  re- 
fers to  the  trial  of  civil  actions,  and  not 
to  special  proceedings.  Lyons  v.  Marcher, 
119  Cal.  382;  51  Pac.  559.  The  adoption 
of  a  verdict  in  a  suit  in  equity  is  equiva- 
lent to  a  finding  by  the  court;  and  the 
case  cannot  be  considered  as  tried  until 
the  decision  is  made  and  filed.  Warring 
V.  Freear,  64  Cal.  54;  28  Pac.  115;  and 
see  Hastings  v.  Hastings,  31  Cal.  95.  Find- 
ings by  the  court  that  several  matters  are 
not  true,  and  a  general  finding  that  the 
several  allegations  of  the  complaint,  not 
in  conflict  with  the  foregoing  findings,  are 
true,  are  insufficient,  and  not  in  accord- 
ance with  this  section:  the  court  is  re- 
quired to  find  facts.  Goodnow  v.  Griswold, 
68  Cal.  599;  9  Pac.  837. 

Findings  must  be  signed  and  filed.  The 
signature  of  the  judge  and  the  filing  with 
the  clerk  are  sufiicient  to  make  the  finding 
a  matter  of  record.  Reynolds  v.  Harris,  8 
Cal.  617.  A  transcript  on  appeal,  setting 
forth  the  findings  and  conclusions,  but  not 
showing  that  they  were  signed  by  the 
judge  or  filed  with  the  clerk,  nor  that  there 
was  any  judgment  entered  thereon,  does 
not  show  that  any  judgment  was  ever  ren- 
dered Vjy  the  court,  and  is  cause  for  dis- 
missal of  the  appeal.  Estate  of  De  Leon, 
4  Cal.  Unrep.  388;  35  Pac.  309.  The  mere 
entry  of  a  minute-order  of  the  court,  as  is 
customary  on  announcing  its  decision,  is 
not  ordinarily  the  decision  from  which  an 
appeal  is  to  be  taken,  and  certainly  cannot 
be  considered  such,  where  the  court,  after 
making  the  entry,  filed  formal  fimlings  of 


679 


FINDINGS — CONCLUSIONS  OF  LAW — SEPARATE  STATEMENT. 


§633 


to  affect  or  change  the  facts  as  found,  ami 
it  forms  no  part  of  the  record  on  appeal 
(Churchill  v.  Flournoy,  lliT  Cal.  353;  59 
Pac.  79J;  Houston  v.  Williams,  13  Cal. 
24;  73  Am.  Dec.  565;  Hidden  v.  Jordan,  28 
Cal.  301;  McClory  v.  McClory,  38  Cal.  575; 
Wixon  V.  Devine,  67  Cal.  341;  7  Pac.  776); 
and  the  general  language  found  in  the 
opinion  rendered  in  the  decision  must  be 
construed  with  reference  to  tlie  i>artii!ular 
facts  then  before  the  court  (Chapman  v. 
State,  104  Cal.  690;  43  Am.  St.  Rep.  158; 
38  Pac.  457;  Grant  v.  Murphy,  116  Cal. 
427;  58  Am.  St.  Hep.  ISS;  48  Pac.  481); 
and  a  written  opinion,  offered  for  the  pur- 
pose of  showing  the  nature  of  the  action, 
and  the  issues  submitted  to  the  court,  with- 
out even  the  form  of  having  been  under 
oath,  is  not  competent  evidence  for  that 
purpose.  Keech  v.  Beatty,  127  Cal.  177; 
59  Pac.  837.  " 

Issues.  It  is  the  duty  of  the  court  to 
pass  upon  all  the  issues  involved  in  the 
action.  Montecito  Valley  Water  Co.  v. 
Santa  Barbara,  144  Cal.  578;  77  Pac.  1113; 

§  633.  Facts  found  and  conclusions  of  law  must  be  separately  stated. 
Judgment  on.  In  giving  the  decision,  the  facts  found  and  the  conclusions 
of  law  must  be  separately  stated.  Judgment  upon  the  decision  must  be 
entered  accordingly. 

Legislation  §  633.  Enacted  March  11,  1872; 
based  on  the  second  sentence  of  Practice  Act, 
§  ISO.  which  had  the  word  "shall"  instead  of 
"mu.sl."     in    hotli    instances. 


Kusel  V.  Kusel,  147  Cal.  55;  81  Pac.  297. 
It  is  indicated  by  this  section,  that,  where 
there  is  no  fact  in  issue,  there  is  no  fact 
to  be  i)rove<l;  but  that  wherever  a  fact 
is  to  be  establisheil  by  evidence,  the  rule 
is  different,  as  where  the  asserted  fact  is 
the  ground  upon  which  the  party  relies 
for  a  divorce.  Nelson  v.  Nelson,  18  Cal. 
Api).  602;  123  Pac.  1099. 

Terms  defined.  The  clerk's  entry  in  the 
minutes  is  not  the  decision  of  the  cause. 
Delger  v.  .Jacjobs,  19  Cal.  Ai)p.  197;  125 
Pac.  258.  The  "decision"  of  the  court  is 
found  in  its  findings,  and  not  in  the  giving 
of  the  judgment.  Klizalde  v.  Murphy,  11 
Cal.  App.  32;  103  Pac.  904.  The  signing 
and  filing  of  findings  of  fact  and  conclu- 
sions of  law  constitute  the  rendition  of 
judgment  by  the  court.  Crim  v.  Kessing, 
89  Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  Hoover  v.  Lester,  16  Cal.  App.  151; 
116  Pac.  382. 

CODE  COMMISSIONERS'  NOTE.    See  note  to 

§  633,  post. 


Object  of  section.  The  object  of  this 
section  is  twofold:  1.  To  preclude  the  trial 
court  from  mingling  together  questions  of 
fact  and  law,  so  that  the  facts  presented 
in  the  findings  may  contain  all  the  attri- 
butes of  a  special  verdict,  to  the  end  that 
the  proper  application  of  the  legal  prin- 
ciples to  the  case  may  be  investigated  in- 
dependently of  the  facts;  and  2.  That  the 
conclusions  of  law  may  serve  as  directory 
to  the  clerk  in  entering  judgment  upon 
the  facts  as  found.  Spencer  v.  Duncan, 
107  Cal.  423;  40  Pac.  549.  The  object  of 
this  section  is  to  abolish  the  doctrine  of 
implied  findings,  and  to  separate  questions 
of  fact  from  questions  of  law;  and  a  party 
to  an  action  may  now  present,  on  appeal, 
the  points,  that  the  judgment  is  not  a 
legal  conclusion  from  the  facts  found,  and 
that  the  evidence  does  not  sustain  the 
findings,  or  some  of  them.  Dowd  v.  Clarke, 
51  Cal.  262.  One  main  object  of  this  sec- 
tion seems  to  have  been  to  prevent  the 
court  from  summarily  ordering  judgment 
without  stating  any  facts  or  legal  con- 
clusions upon  which  it  is  based,  and  also 
to  facilitate  the  review  of  the  judgment 
on  appeal:  its  main  object  was  surely  not 
to  afford  a  cover  under  which  a  losing 
party  might  successfully  set  a  trap  to 
capture  a  just  judgment.  Millard  v.  Su- 
preme  Council,   81   Cal.   340;    22   Pac.   864. 


The  intention  of  this  section  is,  that  the 
decision  of  the  court  shall  be  the  basis  of 
the  judgment,  in  the  same  manner  as  the 
verdict  of  the  jury:  the  section  is  not 
merely  directory,  and  the  court  has  no 
right  to  impair  or  destroy  its  efficacy. 
Russel  V.  Armador,  2  Cal.  305. 

Separate  statement.  This  section  is  di. 
rectory,  so  far  as  it  applies  to  the  con- 
elusions  of  law  being  separately  stated 
(Spencer  v.  Duncan,  107  Cal.  423;  40  Pac. 
549):  correct  findings,  or  conclusions  of 
law  and  fact,  may  be  considered,  wherever 
set  out.  Butler  v.  Agnew,  9  Cal.  App.  327; 
99  Pac.  395.  A  judgment  is  not  rendered 
ineffective  by  reason  of  being  contained 
in  the  same  document  with  the  findings. 
Hopkins  v.  Warner,  109  Cal.  133;  41  Pac. 
868.  The  findings  of  fact  and  conclusions 
of  law  constitute  the  decision,  but  this 
does  not  preclude  the  inclusion  of  the  con- 
clusions of  law  in  the  judgment  alone, 
where  the  judgment  and  the  findings  of 
fact  are  drawn  and  filed  at  the  same  time. 
Gainsley  v.  Gainsley,  5  Cal.  Unrep.  310; 
44  Pac.  456;  and  see  Miller  v.  Hicken,  92 
Cal.  229;  28  Pac.  339.  A  finding  placed 
after  the  conclusions  of  law,  and  given  as 
a  fact  resulting  from  the  other  findings 
of  fact,  does  not  cease  to  be  a  finding  of 
fact  by  reason  of  its  position  (Knowlton 
V.  Mackenzie,  110  Cal.  183;  42  Pac.  580); 
and  the  mere  fact  that  a  finding  is  placed 
under  the  wrong  heading  is  a  very  feeble 
reason   for   the   reversal   of    a    judgment. 


§633 


TRIAL   BY    COURT. 


680 


Millard  v.  Supreme  Council,  81  Cal.  340; 
22  Pac.  864;  Burton  v.  Burton,  79  Cal.  490; 
21  Pac.  847. 

Separate  findings,  where  causes  of  action 
are  joint.  Where  several  causes  of  action 
are  joined,  the  court  may  make  a  single 
set  of  findings  based  on  allegations  com- 
mon to  each  cause  of  action,  and  separate 
findings  for  each  matter  applicable  only 
to  anv  one  cause  of  action.  Anderson  v. 
Blean"    19   Cal.  App.  581;   126  Pac.  8.59. 

Findings,  what  are.  The  finding  of  facts 
and  conclusions  of  law  are  different  from 
the  opinion:  the  finding  consists  of  a  con- 
cise, distinct,  pointed,  and  separate  state- 
ment of  each  essential  fact  established  by 
the  evidence,  in  its  proper  order,  without 
any  of  the  testimony  by  which  the  facts 
are  proved,  followed  by  a  similar  state- 
ment of  the  conclusions  of  law  drawn 
from  facts  thus  found.  Hidden  v.  Jordan, 
28  Cal.  301.  The  special  verdict  of  a 
jury  is  adopted  by  the  court  in  making 
an  order  that  judgment  be  entered  in  ac- 
cordance with  the  verdict  of  the  jury 
rendered  therein,  and  all  the  special  issues 
submitted  to  the  jury,  and  their  answers 
or  findings  thereon,  were  incorporated  in 
the  judgment,  together  with  the  general 
verdict;  and  when  adopted  by  the  court, 
it  takes  the  place  of  and  is  equivalent  to 
findings  by  the  court.  Morrison  v.  Stone, 
103  Cal.  94;  37  Pac.  142.  A  document 
filed  by  the  judge,  in  which  he  states  the 
case,  the  testimony,  and  the  reasons  for 
his  decision,  and  not  the  ultimate  facts 
established  by  the  evidence,  is  an  opinion, 
and  not  a  finding.  McClory  v.  McClory, 
38  Cal.  575. 

Findings  under  Practice  Act.  Under  the 
amendment  of  1866  to  §  180  of  the  Prac- 
tice Act,  if  the  losing  party  appealed 
without  moving  for  a  new  trial,  or  without 
excepting  to  the  findings  as  defective,  the 
written  findings  were  of  no  avail  for  any 
purpose  to  the  prevailing  party,  nor  were 
they  of  any  benefit  to  the  losing  party  un- 
less they  contained  facts  repugnant  to  or 
inconsistent  with  the  judgment;  and  pre- 
vious to  the  act  of  1861  the  findings  were 
required  to  support  the  judgment,  but, 
under  that  act,  and  §  180  of  the  Practice 
Act,  where  there  was  no  exception  on  the 
ground  that  the  finding  was  defective  or 
wanting,  it  was  only  requisite  that  the 
finding  should  not  be  repugnant  to  or 
inconsistent  with  the  judgment.  Sears  v. 
Dixon,  33  Cal.  326. 

Necessity  for  findings.  Prior  to  the 
codes,  findings  were  not  essential  to  the 
entry  or  validity  of  a  judgment.  Grim  v. 
Kessing,  89  Cal.  478;  23  Am.  St.  Eep.  491; 
26  Pac.  1074;  see  also  Lamb  v.  Harbaugh, 
105  Cal.  680;  39  Pac.  56.  They  are  re- 
quired only  in  civil  actions  and  in  special 
proceedings,  where  made  necessary  by 
statute;  written  findings  were  not  required 


under  the  common-law  practice.  Disbar- 
ment of  Danford,  157  Cal.  425;  108  Pac. 
322.  Findings  are  necessary  to  support  a 
final  judgment  upon  the  merits.  Saul  v. 
Moscone,  16  Cal.  App.  506;  118  Pac.  452. 
In  an  action  to  recover  the  value  of  legal 
services,  the  complaint  must  allege  the 
non-payment  of  the  claim,  which  must  also 
be  proved,  if  that  fact  is  put  in  issue  by 
the  answer;  and,  where  findings  arc  not 
waived,  it  must  be  substantially  found,  to 
support  a  judgment  for  the  plaintiff,  that 
the  monev  has  not  been  paid.  Harlan  v. 
Lambert,  "l9  Cal.  App.  349;  125  Pac.  1079. 
A  finding  as  to  a  fact  implied  by  law  is 
not  necessary.  Pinheiro  v.  Bettencourt,  17 
Cal.  App.  lli;  118  Pac.  941.  Where  a  find- 
ing is  conclusive  against  the  right  of  the 
plaintiff  to  recover,  findings  upon  other 
issues  are  unnecessary  (Gregory  v.  Greg- 
ory, 102  Cal.  50;  36  Pac.  364;  Dyer  v. 
Brogan,  70  Cal.  136;  11  Pac.  589);  nor 
are  findings  required  in  a  case  of  nonsuit. 
Toulouse  V.  Pare,  103  Cal.  251;  37  Pac. 
146;  and  see  Gilson  Quartz  Mining  Co.  v. 
Gilson,  47  Cal.  597;  Reynolds  v.  Brumagim, 
54  Cal.  254. 

Findings  are  like  special  verdict.  Find- 
ings of  fact  are  like  a  special  verdict. 
Simmons  v.  Hamilton,  56  Cal.  493;  Ken- 
nedy &  Shaw  Lumber  Co.  v.  S.  S.  Construc- 
tion Co.,  123  Cal.  584;  56  Pac.  457.  The 
court,  when  trying  an  issue  of  fact,  is  en- 
titled to  the  same  privileges  and  is  subject 
to  the  same  rules  as  a  jury,  with  the  ex- 
ception of  the  mode  of  rendering  its 
decision:  its  verdict  must  in  all  cases  be 
special.   Breeze  v.  Doyle,  19  Cal.  101. 

Form.  The  code  does  not  prescribe  the 
form  of  findings.  Millard  v.  Supreme  Coun- 
cil, 81  Cal.  340;  22  Pac.  864.  Findings  on 
material  issues  raised  by  the  pleadings 
and  evidence  need  not  be  in  anj'  particu- 
lar form.  Harlan  v.  Lambert,  19  Cal.  App. 
349;  125  Pac.  1079. 

Trial  court  must  find  facts.  The  trial 
court  is  required  to  find  the  facts,  not 
evidence  of  facts;  the  appellate  court  is 
not  competent  to  deduce  conclusions  of 
facts  from  evidence;  to  do  which  would 
be  to  assume  original  jurisdiction,  com- 
mitted by  the  constitution  to  the  trial 
court,  and  denied  to  the  appellate  court. 
McDonald  v.  Burton,  68  Cal.  445;  9  Pac. 
714.  The  labor  and  duty  of  finding  the 
facts  is  imposed  upon  the  lower  court  by 
statute:  that  court  cannot  turn  it  over  to 
the  supreme  court,  or  to  any  other  tribunal 
or  person.  Goodnow  v.  Griswold,  68  Cal. 
599;  9  Pac.  837. 

Opinion  or  oral  declaration  of  judge  as 
affecting  finding.  The  opinion  of  a  judge 
is  merely  an  informal  statement  of  his 
views  of  the  cause,  which  are  subject  to 
change  or  modification;  the  legal  expres- 
sion of  his  views  is  to  be  found  only  in  the 
findings    of   fact   and   conclusions    of   law. 


681 


FINDINGS — PROBATIVE  AND  ULTIMATE  FACTS. 


§633 


Montecito  Valley  Water  Co.  v.  Santa  Bar- 
bara, 144  Cal.  578;  77  Pao.  1113;  Wadleigh 
V.  Phelps,  149  Cal.  627;  87  Pac.  93.  The 
finding  of  the  court  is  not  impaired  by 
any  oral  declaration  of  the  .iudfje  at  the 
time  he  announces  his  decision,  nor  is  he 
concluded  by  any  such  declaration  by 
subsequently  making  a  finding  contrary 
thereto.  Fisk  v.  Casey,  119  Cal.  G43;  51 
I'ac.  1077. 

Finding  of  probative  and  ultimate  facts. 
Findings  should  be  statements  of  the  ulti- 
mate facts  in  controversy,  and  not  of  pro- 
bative facts  or  mere  conclusions  of  law 
(Murphy  v.  Bennett,  68  Cal.  .528;  9  Pac. 
738);  though  findings  of  probative  facts, 
where  the  ultimate  facts  necessarily  result 
from  them,  are  sufficient  (Southern  Pacific 
R.  R.  Co.  V.  Whitaker,  109  Cal.  268;  41 
Pac.  1083;  Mott  v.  Ewing,  90  Cal.  231;  27 
Pac.  194;  Murdock  v.  Clarke,  90  Cal.  427; 
27  Pac.  275) ;  and  where  the  probative 
facts  are  found,  the  court  can  declare  that 
the  ultimate  facts  necessarily  result  from 
them  (Alhambra  etc.  Water  Co.  v.  Rich- 
ardson, 72  Cal.  598;  14  Pac.  379);  and 
also  where  the  ultimate  facts  flow  as  a 
necessary  conclusion  therefrom  (Bull  v. 
Bray,  89  Cal.  286;  13  L.  R.  A.  576;  26 
Pac.  873;  Estate  of  Benton,  131  Cal.  472; 
63  Pac.  775) ;  but  an  ultimate  finding  of 
fact,  drawn  as  a  conclusion  from  the  pro- 
bative facts  found,  cannot  stand  if  the 
specific  facts  upon  which  it  is  based  do 
not  support  it.  McKay  v.  Gesford,  163  Cal. 
243;  Ann.  Cas.  1913E,  1253;  41  L.  R.  A. 
(N.  S.)  303;  124  Pac.  1016.  Particular 
facts  found,  relied  upon  as  a  substitute 
for  a  finding  upon  the  ultimate  fact 
alleged  and  put  in  issue,  must  be  incon- 
sistent with  the  fact  they  tend  to  nega- 
tive, and  every  particular  fact  necessary 
to  constitute  this  negation  must  be  stated 
in  the  finding.  Kusel  v.  Kusel,  147  Cal. 
52;  81  Pac.  297.  A  finding  that  ''sales 
were  not  rescinded"  being  held  the  finding 
of  an  ultimate  fact  depending  upon  pro- 
bative facts,  and  a  finding  that  "no  lien 
existed"  being  also  held  the  finding  of  an 
ultimate  fact,  it  cannot  be  seen  why  a  find- 
ing "that  the  plaintiff  has  no  prescriptive 
right"  is  not  also  the  finding  of  an  ulti- 
mate fact;  for  it  depends  upon  certain  pro- 
bative facts,  which,  in  their  turn,  depend 
upon  evidence.  Weidenmueller  v.  Stearns 
Ranches  Co.,  128  Cal.  623;  61  Pac.  374. 
Findings  are  not  necessary,  where  the  ulti- 
mate facts  put  in  issue  by  the  pleadings 
have  been  agreed  upon,  but  the  finding 
of  an  ultimate  fact  is  properly  ma<le  where 
an  agreed  statement  of  facts  sets  forth 
merely  evidentiary  matter,  from  which  the 
ultimate  fact  might  be  found  either  way. 
Crisman  v.  Lanterman,  149  Cal.  647;  117 
Am.  St.  Rep.  167;  87  Pac.  S9.  Findings  of 
probative  facts  will  not  invalidate  the  find- 
ing of  an  ultimate  fact,  unless  the  latter 


is  based  on  the  former  and  is  entirely 
overcome  thereby,  and  unless,  also,  these 
findings  of  probative  facta  dispose  of  all 
the  facts  involved  in  the  pleadings  and 
the  facts  found  constitute  all  the  facts 
iu  the  case.  Forsythe  v.  Los  Angeles  Rv. 
Co.,  149  Cal.  569;  87  Pac.  24.  Findings  of 
probative  facts  will  not,  in  general,  con- 
trol, limit,  or  modify  the  finding  of  the 
ultimate  fact,  and  although  the  finding  of 
probative  facts  from  which  the  ultimate 
fact  conclusively  follows  is  sufficient,  yet 
when  the  ultimate  fact  is  found,  no  finding 
of  probative  facts  which  may  tend  to  es- 
tablish that  the  ultimate  fact  was  found 
against  the  evidence  can  overcome  the 
principal  findings;  in  such  ease  the  only 
remedy  is  to  move  for  a  new  trial.  Sharp 
V.  Bowie,  142  Cal.  462;  76  Pac.  62;  Smith 
v.  Acker,  52  Cal.  217;  Gill  v.  Driver,  90 
Cal.  72;  27  Pac.  64;  Perry  v.  Quackenbush, 
105  Cal.  299;  38  Pac.  740.  A  finding  of  the 
ultimate  fact  jirevails  in  support  of  the 
judgment,  notwithstanding  the  finding  of 
a  probative  or  evidentiary  fact  that  tends 
to  show  that  the  ultimate  fact  was  found 
against  the  evidence.  Forsythe  v.  Los  An- 
geles Ry.  Co.,  149  Cal.  569;  87  Pac.  24. 
A  finding  of  ownership  includes  the  pro- 
bative facts.  Hynes  v.  All  Persons,  19 
Cal.  App.  185;  125  Pac.  253.  The  pre- 
sumption on  appeal  is  not  only  in  favor  of 
the  ultimate  fact  found,  but  also  that  any 
conflict  in  the  evidence  as  to  probative 
facts  was  resolved  in  such  a  manner  as 
to  sustain  the  general  finding.  Ballard  v. 
Nye,  138  Cal.  586;  72  Pac.  156. 

Material  issues.  A  party  is  entitled  to 
a  distinct  finding  upon  every  material 
issue,  whether  made  by  denials  of  aver- 
ments in  the  complaint,  or  by  the  denials, 
presumed  by  law,  of  averments  in  the  an- 
swer. Harlan  v.  Ely,  55  Cal.  340.  Every 
material  issue  must  be  met  by  the  findings. 
O'Brien  v.  O'Brien,  124  Cal.' 422;  57  Pac. 
225.  A  failure  to  find  upon  any  material 
issue  raised  b}'  the  pleadings  is  ground  for 
reversal  (Kimball  v.  Stormer,  65  Cal.  116; 
3  Pac.  408);  but  not  where  the  findings 
omitted  would  have  been  adverse  to  the 
appellant.  People  v.  Center,  66  Cal.  551; 
5  Pac.  263;  6  Pac.  481;  Murphv  v.  Ben- 
nett, 68  Cal.  528;  9  Pac.  738;  Demartin  v. 
Uemartin,  85  Cal.  71;  24  Pac.  594.  If  all 
the  material  issues  are  not  found  upon,  a 
reversal  will  not  be  ordered,  unless  the 
findings  on  the  issues  not  found  upon 
would  have  entitled  the  appellant  to  a 
judgment  in  his  favor.  Blochman  v. 
Spreckels,  135  Cal.  662;  57  L.  R.  A.  213; 
67  Pac.  1061;  and  see  Gould  v.  Adams,  108 
Cal.  365;  41  Pac.  403.  Where  there  are, 
in  substance,  findings  on  the  material  is- 
sues, it  is  not  necessary  that  they  shall 
be  in  the  exact  language  of  the  pleadings, 
or  in  any  particular  form.  Millard  v.  ."Su- 
preme Council,   81    Cal.   340;    22   Pac.   864. 


§633 


TRIAL   BY    COURT. 


682 


It  is  not  always  necessary  to  make  a  spe- 
cific finding  as  to  each  of  several  material 
issues,  where  the  findings,  taken  as  a 
whole,  or  construed  together,  clearly  show 
that  they  include  the  court's  conclusion 
upon  all  the  material  issues.  Rossi  v. 
Beaulieu  Vineyard,  20  Cal.  App.  770;  130 
Pac.  201.  The  court  errs  in  failing  to  find 
upon  the  material  allegations  of  a  cross- 
complaint,  where  there  is  evidence  to  sup- 
port them.  Cargnani  v.  Cargnani,  16  Cal. 
App.  96;  116  Pac.  306. 

Evidence  on  issue  necessary.     It  is  in- 
cumbent   upon    the    party    complaining    to 
show   that   evidence   was   offered  to   prove 
his  af53rmative  defense,  and  that  such  evi- 
dence   would    have    justified    a    finding   in 
his  favor  (De  Tolna  v.  De  Tolna,  135  Cal. 
575;    67   Pac.   1045;    and  see   Woodham   v. 
Cline,  130  Cal.  497;   62  Pac.  822);   and  an 
appellant  cannot  complain   that  the  court 
failed   to  find  upon  an   issue  tendered  by 
him,  unless  he  brings  up  the  evidence,  and 
shows    that   he   introduced    evidence   upon 
tliat    issue   which   would    have   justified    a 
ruling  in  his  favor.    Estate   of   Carpenter, 
127  Cal.  582;  60  Pac.  162.     Where  no  direct 
evidence  is  introduced  upon  any  issue,  the 
finding  should  be  against  the  party  having 
the  burden  of  proof.    Demartin  v.  Demar- 
tin,    85    Cal.    71;    24    Pac.    594;    People    v. 
Center,  66  Cal.  551;  5  Pac.  263.     The  fail- 
ure   to   find   upon   the   facts   in   issue,   con- 
stituting a  defense  to  the  action,  does  not 
justify   a   reversal,   unless   there   was   evi- 
dence given  from  which  such  facts  could 
be  found.   Callahan  v.  James,  141  Cal.  291; 
74    Pac.    853;    Himmelman    v.    Henry,    84 
Cal.   104;   23  Pac.   1098;   Gregory  v.  Greg- 
orv,   102   Cal.   50;   36  Pac.   364;   Kaiser   v. 
cAlto,    140    Cal.    167;    73    Pac.    828.     The 
omission    of    the    court    to    make   findings 
upon  issues  presented  by  a  cross-complaint 
is  not  a  ground  for  reversal,  in  the  absence 
of  any  bill  of  exceptions  or  other  showing 
that   evidence  was   given   upon   the  issues 
so    presented.     Stewart    v.    Hollingsworth, 
129  Cal.  177;  61  Pac.  936.     Where  the  rec- 
ord    does     not     show    that     evidence   was 
offered  in   support   of  a  counterclaim,  the 
failure   of     the   court    to   make   a   finding 
thereon  does  not  justify  a  reversal.    Cut- 
ting Fruit  Packing  Co.  v.  Canty,  141  Cal. 
692;     75    Pac.    564;     and    see    Winslow    v. 
Gohransen,  88  Cal.  450;  26  Pac.  504;  Hihn 
Co.  v.  Fleckner,  106  Cal.  95;   39  Pac.  214. 
Where   an   affirmative   defense  is  pleaded, 
and  the  defendant  offered  no  evidence,  he 
cannot  complain,  on  appeal,  that  the  court 
made  no  finding  thereon.   Frantz  v.  Harper, 
6  Cal.  Unrep.  560;   62  Pac.  603.     The  pre- 
sumption that  no  evidence  was  offered  on 
an    issue   upon   which   there   is   no   finding, 
applies    not    only    to    the    issues    that    are 
made  to  the  allegations  of  the  complaint 
by  the  answer,  but  also  to  the  issues  made 
by    the    averment    of    new    matter    in    the 


answer  which  are  deemed  controverted; 
and  a  failure  to  make  a  finding  upon  any 
of  these  issues  is  not,  in  the  absence  of  a 
bill  of  exceptions,  error.  Bliss  v.  Sneath, 
119  Cal.  526;  51  Pac.  848;  Estate  of  Car- 
penter. 127  Cal.  5S2;  60  Pac.  162. 

Findings  as  supported  by  evidence.  To 
require  a  finding  upon  any  affirmative  mat- 
ter urged  to  a  counterclaim,  it  must  con- 
stitute a  defense  thereto,  and  be  supported 
bv  some  evidence.  L.  Scatena  &  Co.  v. 
Van  Loben  Sels,  19  Cal.  App.  423;  126  Pac. 
187.  In  ejectment  for  a  strip  of  a  city 
lot,  where  each  party  has  exactly  what  he 
has  deemed  himself  entitled  to  for  over 
forty  years,  and  on  which,  during  all  of 
that  time,  he  has  paid  taxes,  a  finding  that 
the  plaintiff  never  possessed  such  strip  is 
sustained  bv  the  evidence.  Marsicano  v. 
Luning,  19  "Cal.  App.  334;  125  Pac.  1083. 
Findings  which  are  in  part  probative  facts 
and  in  part  ultimate  facts,  and  conclusions 
which  are  in  part  more  findings  of  ulti- 
mate facts  than  conclusions  of  law,  may 
all  be  looked  to  to  determine  whether 
they  are  supjaorted  by  sufficient  evidence, 
are  sufficiently  responsive  to  the  issues 
made  by  the  pleadings,  and  support  the 
judgment.  Mason  v.  Lievre,  145  Cal.  514; 
78  Pac.  1040.  Where  the  cause  is  prop- 
erly decided  upon  an  issue  raised  by  a 
special  defense,  and  the  decision  does  not 
rest  upon  the  allegations  of  the  complaint, 
it  is  of  no  consequence  whether  the  find- 
ings as  to  such  allegations  are  or  are  not 
contrary  to  the  evidence.  Eauer  v.  Fay, 
128  Cal.  523;  61  Pac.  90. 

Facts  admitted  by  the  pleadings.  Find- 
ings need  not  be  made  of  facts  admitted 
by  the  pleadings,  or  sufficiently  covered  by 
the  findings  actually  made.  Giselman  v. 
Starr,  106  Cal.  651;  40  Pac.'  8.  Facts 
averred  in  the  pleading  of  one  party,  and 
not  denied  by  the  other,  need  not  be  found 
bv  the  court.  Estate  of  Doyle,  73  Cal.  564; 
15  Pac.  125;  Ortega  v.  Cordero,  88  Cal. 
221;  26  Pac.  80;  Powell  v.  Bank  of  Le- 
moore,  125  Cal.  468;  58  Pac.  83.  Facts 
admitted  by  the  pleadings  need  not  be 
found  by  the  court;  but  a  finding  by  the 
court  against  a  material  admission  is 
ground  for  a  reversal  of  the  judgment 
(Faulkner  v.  Rondoni,  104  Cal.  140;  37 
Pac.  883) ;  nor  are  findings  required  upon 
facts  not  disputed;  and  none  are  neces- 
sary, where  an  agreed  statement  covers  all 
the  facts  in  the  case  (Pomerov  v.  Greg- 
ory, 66  Cal.  572;  6  Pac.  492,  493;  Taylor 
V.  Central  Pacific  R.  R.  Co.,  67  Cal.  615; 
8  Pac.  436) ;  and  as  to  such  admitted  facts, 
the  pleadings,  in  effect,  become  part  of 
the  findings;  and  the  findings  determine 
the  material  issues  of  fact  raised  by  the 
pleadings.  Kennedy  &  Shaw  Lumber  Co. 
V.  S.  S.  Construction  Co.,  123  Cal.  584;  56 
Pac.  457.  The  facts  need  not  necessarily 
follow  the  pleadings  which  they  support: 


683 


FINDINGS — OUTSIDE  ISSUES — FAILURE  TO  FIND. 


§633 


if  the  truth  or  falsit.y  of  each  material 
allegation  not  admitted  can  be  demon- 
strated from  the  findings,  the  requirenionts 
of  the  code  are  met.  Mott  v.  Ewing,  90 
Cal.  2.31;  27  Pac.  194.  A  finding  contrary 
to  an  admission  in  the  pleadings  will  be 
disregarded  in  determining  the  question 
whether  a  proper  conclusion  of  law  was 
drawn  from  the  facts  found  and  admitted; 
and  a  finding  b}'  the  court  against  an  aver- 
ment not  denied  does  not  create  an  issue 
which  the  party  has  a  right  to  have  tried. 
Machado  v.  Kinnev,  135  Cal.  354;  67  Pac. 
331. 

Findings  outside  of  issues.  A  finding  of 
fact  can  only  be  made  upon  issues  joined 
by  the  pleadings,  where  the  decision  of  the 
court  following  the  findings  is  a  judgment. 
Waller  v.  Weston,  125  Cal.  201;  57  Pac. 
892.  Findings  outside  of  the  issues,  and 
not  carried  into  the  judgment,  are  imma- 
terial (Collins  V.  Gray,  154  Cal.  131;  97 
Pac.  142);  and  findings  not  determinative 
of  the  issues  are  insufficient.  Kimball  v. 
Stormer,  65  Cal.  116;  3  Pac.  408.  Find- 
ings outside  of  the  issues  cannot  sustain 
a  judgment.  Green  v.  Chandler,  54  Cal. 
626;  Sachse  v.  Auburn,  95  Cal.  650;  30 
Pac.  800;  Gamache  v.  South  School  Dis- 
trict, 133  Cal.  145;  65  Pac.  301.  There  is 
no  error  in  not  finding  upon  a  particular 
matter  not  in  issue.  Kern  River  Co.  v. 
Los  Angeles  County,  164  Cal.  751;  130  Pac. 
714;  Younger  v.  Moore,  155  Cal.  767;  103 
Pac.  221;  Pinheiro  v.  Bettencourt,  17  Cal. 
App.  119;  118  Pac.  941;  Mentry  v.  Broad- 
way Bank  etc.  Co.,  20  Cal.  App.  388;  129 
Pac.  470.  A  finding  and  judgment  based 
upon  a  supposed  breach  of  contract,  not 
attempted  to  be  alleged  in  the  complaint, 
are  erroneous  and  invalid,  and  cannot 
be  sustained.  Lvden  v.  Spohn-Patrick  Co., 
155  Cal.  177;  lOO'Pac.  236. 

Failure  to  find  upon  certain  issues.  On 
appeal  upon  the  judgment  roll  alone,  it 
will  not  be  presumed  that  any  evidence 
was  given  upon  an  issue  as  to  which  there 
is  no  finding.  Eva  v.  Symons,  145  Cal. 
202;  78  Pac.  648.  The  failure  of  the  court 
to  find  the  facts  declared  essential  to  a 
recovery,  by  the  decision  of  the  appellate 
court  on  a  former  appeal  of  the  case,  as 
well  as  its  own  construction  of  its  findings, 
by  rendering  a  judgment  for  the  defend- 
ants, must  be  regarded  as  its  own  con- 
clusion that  the  evidence  was  insufficient 
to  justify  such  findings  as,  under  the 
former  ojiinion  of  the  appellate  court, 
would  authorize  a  decision  in  favor  of  the 
plaintiff.  Breeze  v.  Brooks,  97  Cal.  72; 
22  L.  R.  A.  256;  31  Pac.  742.  The  failure 
to  find  upon  an  issue,  a  finding  upon  which 
would  merely  invalidate  a  judgment  fully 
supported  by  the  findings,  is  not  a  ground 
for  reversal,  unless  it  is  shown  that  evi- 
dence was  submitted  in  relation  to  nuch 
issue.    Himmclman   v.  Henry,  84  Cal.   104; 


23  Pac.  1098;  KloUke  v.  Escailler,  124  Cal. 
297;  56  Pac.  1113;  Downing  v.  Donegan, 
1  Cal.  App.  710;  82  Pac.  1111.  The  failure 
to  make  an  exf)ress  finding  on  a  i);irticular 
issue  is  not  i)r('judicial,  where  the  effect 
of  a  finding  alreaily  made  renders  such 
issue  immaterial.  DicfenfJorflF  v.  Hopkins, 
95  Cal.  343;  30  Pac.  549;  and  see  Mc- 
Courtney  v.  Fortune,  57  Cal.  617;  Dver  v. 
Brogan,  70  Cal.  136;  11  Pac.  589;  Malone 
V.  Del  Norte  County,  77  Cal.  217;  19  I'ac 
422;  Prison  v.  Rrison,  90  Cal.  323;  27  Pac. 
186;  Gregory  v.  Gregory,  102  Cal.  50;  36 
Pac.  364.  Where  the  finding  of  the  court 
sufficiently  determines  that  the  amount  of 
a  debt  for  which  judgment  was  entered 
had  become  due  prior  to  the  commence- 
ment of  the  action,  the  defendant  cannot 
complain  of  the  want  of  a  specific  finding 
fixing  the  exact  date  when  the  debt  be- 
came due  and  payable.  Wagner  v.  El 
Centro  Seed  etc.  Co.,  17  Cal.  App.  387; 
119  Pac.  952.  The  statement  of  new  mat- 
ter in  an  answer,  constituting  an  alleged 
counterclaim,  is  deemed  denied  by  the 
plaintiff,  and  the  burden  is  on  the  defend- 
ant to  establish  it;  and,  upon  appeal  from 
the  judgment,  where  the  evidence  cannot 
be  reviewed,  it  must  be  presumed  that  a 
failure  to  find  as  to  the  new  matter  was 
not  prejudicial  to  the  appellant,  and  that 
a  finding  thereon,  if  made,  would  have 
been  adverse  to  him.  Reed  v.  Johnson,  127 
Cal.  538;  59  Pac.  986.  Special  findings  on 
issues  raised  by  a  cross-complaint  and 
answer  are  not  necessary,  where  a  general 
verdict  was  proper  and  covers  all  the 
issues  presented  by  the  pleadings.  Hunt 
V.  Elliott,  77  Cal.  588;  20  Pac.  132.  The 
failure  to  find  upon  an  issue  raised  by  the 
answer  is  not  error,  where  the  defense  was 
not  claimed  in  the  court  below.  Bliss  v. 
Sneath,  119  Cal.  526;  51  Pac.  848.  The 
parties  to  an  action  have  no  right  to  a 
finding  upon  every  specific  issue  in  a  case, 
merely  because  they  may  plead  it  as  res 
adjudicata  in  some  possible  future  con- 
troversy, where  it  may  become  material. 
Diefendorff  v.  Hopkins,  95  Cal.  343;  30 
Pac.  549. 

Additional  findings.  The  entry  of  final 
judgment  terminates  the  jurisdiction  of 
the  court  over  the  cause  and  the  parties, 
except  as  otherwise  expressly  provided  by 
law;  and  an  additional  fin<ling,  made  after 
the  entry  of  judgment,  though  material, 
cannot  be  deemed  a  valid  finding,  and  the 
court  has  no  power  to  make  it  upon  notice, 
any  more  than  without  notice.  Los  An- 
geles County  v.  Lankershim,  100  Cal.  525; 
35  Pac.  153,  556;  Ayres  v.  Burr,  132  Cal. 
125;  64  Pac.  120.  The  court  cannot  insert 
an  omitted  finding  in  its  findings  as  origi- 
nally prepared,  and  upon  which  judgment 
was  entered;  but  the  judgment  should  not 
be  reversed  on  that  ground,  whero  the 
additional    finding   is   but   a   conclusion    of 


§633 


TRIAL   BY    COURT. 


684 


law  from  the  facts  found.  Richter  v.  Hen- 
ningsan,  110  Cal.  530;  42  Pac.  1077.  Find- 
ings, otherwise  sufficient,  and  covering  all 
the  issues,  are  not  rendered  defective  by 
an  additional  finding,  and  such  finding  will 
be  regarded  merely  as  surplusage.  Hop- 
kins V.  Warner,  109  Cal.  133 ;  41  Pac.  868. 

Negative  findings.  To  find  that  certain 
matters  are  not  true  is  not  to  fix  or  to 
determine  a  fact,  and  is  totally  insufficient. 
Goodnow  V.  Griswold,  68  Cal.  599;  9  Pac. 
837. 

General  and  special  findings.  A  gen- 
eral finding,  that  certain  averments  of  the 
complaint  are  true,  is  controlled  by  a 
special  finding  inconsistent  therewith.  Mc- 
Cormick  v.  National  Surety  Co.,  134  Cal. 
510;  66  Pac.  741.  Where  an  express  find- 
ing upon  all  the  material  issues  supports 
the  judgment,  an  insufficient  general  find- 
ing may  be  disregarded.  Pinheiro  v.  Bet- 
tencourt,  17  Cal.  App.  Ill;  118  Pac.  941. 

Findings  in  language  of  pleadings.  The 
only  purpose  of  the  findings  is  to  answer 
the  questions  raised  by  the  pleadings;  and 
facts,  stated  in  the  findings  as  they  are 
stated  in  the  pleadings,  are  sufficient.  Dam 
V.  Zink,  112  Cal.  91;  44  Pac.  331. 

Findings  inconsistent  with  averment. 
An  affirmative  finding  of  facts,  inconsis- 
tent with  an  averment,  and  from  which  it 
necessarily  follows  that  the  averment  is 
not  true,  is  a  sufficient  finding  that  the 
averment  is  not  true.  Churchill  v.  Bau- 
mann,  95  Cal.  541;  30  Pac.  770. 

Pleadings  incorporated  in  findings  by 
reference.  The  appellate  court  is  not 
called  upon  to  examine  the  record  to  de- 
termine what  matters  at  issue,  made  by 
the  pleadings,  come  within  the  findings. 
Perkins  v.  West  Coast  Lumber  Co.,  120 
Cal.  27;  52  Pac.  118.  The  trial  court 
should  assume  the  labor  of  comparing  the 
allegations  of  the  answer  with  the  fads 
found  by  it:  the  appellate  court  will  not 
determine  the  truth  or  falsity  of  any  of 
the  allegations  by  reference  to  the  testi- 
mony, or  to  the  facts  actually  found.  Har- 
lan V.  Ely,  55  Cal.  340.  A  finding  may 
refer  to  a  pleading  for  a  specification  of 
facts  found  and  not  found;  but  such  ref- 
erence must  be  sufficiently  distinct  to  make 
it  intelligible,  and  the  facts  must  be  suffi- 
ciently stated  in  the  pleadings  (McEwen 
V.  Johnson,  7  Cal.  258) ;  so  as  to  leave 
no  doubt  as  to  what  particular  facts  are 
intended.  Breeze  v.  Doyle,  19  Cal.  101.  A 
finding  that  the  allegations  of  fact  in  a 
complaint  are  true,  is  not  a  finding  that 
any  conclusions  of  law  therein  are  true. 
Postal  Telegraph-Cable  Co.  v.  Los  Angeles, 
164  Cal.  156;  128  Pac.  19.  A  finding  that 
all  the  material  averments  of  the  com- 
plaint are  true  is  sufficient  (Johnson  v. 
Squires,  53  Cal.  37;  Krug  v.  Lux  Brewing 
Co.,  129  Cal.  322;  01  Pac.  1125);  as  is  also 
a  finding  that  all  and  singular  the  allega- 


tions of  the  complaint  are  true,  and  the 
allegations  of  the  answer  are  false,  and 
specifically  negativing  a  charge  which  was 
the  basis  of  a  separate  defense,  is  suffi- 
cient (Cohn  V.  Kelly,  132  Cal.  468;  64 
Pac.  709) ;  and  also  a  finding  that  certain 
instruments  set  forth  in  the  complaint 
were  executed  by  the  parties  at  the  time 
alleged  (Breeze  v.  Doyle,  19  Cal.  101); 
and  a  finding  that  certain  named  para- 
graphs in  the  complaint  are  true  (Home- 
seekers  Loan  Ass'n  v.  Gleeson,  133  Cal. 
312;  65  Pac.  617;  and  see  Johnson  v.  Klein, 
70  Cal.  186;  11  Pac.  606;  Williams  v.  Hall, 
79  Cal.  606;  21  Pac.  965);  and  a  finding 
that  all  the  allegations  contained  in  cer- 
tain subdivisions  of  the  complaint  are  true, 
where  the  complaint  is  divided  into  sub- 
divisions and  the  answer  is  not  (Kennedy 
&  Shaw  Lumber  Co.  v.  S.  S.  Construction 
Co.,  123  Cal.  584;  56  Pac.  457);  and  a 
finding  "that  all  the  facts  in  the  complaint 
are  true,  except  as  to  those  hereinafter 
otherwise  specified,  and  as  to  those  allega- 
tions, the  court  finds  as  follows,"  and  the 
court  then  finds  specifically  as  to  such 
omitted  matters,  is  sufficient  (Alameda 
County  v.  Crocker,  125  Cal.  101;  57  Pac. 
766);  as  is  also  a  general  finding,  that 
each  and  all  of  the  allegations  of  the 
plaintiff's  complaint  are  true,  and  are  sus- 
tained by  the  evidence,  and  that  none  of 
the  denials  contained  in  the  defendant's 
answer  herein  are  true,  or  are  sustained 
by  the  evidence  (Gale  v.  Bradbury,  116 
Cal.  39;  47  Pac.  778;  and  see  McEwen  v, 
Johnson,  7  Cal.  258;  Johnson  v.  Klein,  70 
Cal.  186;  11  Pac.  606;  Gwinn  v.  Hamilton, 
75  Cal.  265;  17  Pac.  212;  Williams  v.  Hall, 
79  Cal.  606;  21  Pac.  965;  San  Diego  County 
v.  Seifert,  97  Cal.  594;  32  Pac.  644;  Krug 
V.  Lux  Brewing  Co.,  129  Cal.  322;  61  Pac. 
1125;  Sutter  County  v.  McGriff,  130  Cal. 
124;  62  Pac.  412;  Cohn  v.  Kelly,  132  Ca^. 
468;  64  Pac.  709);  but  a  finding  that  all 
the  allegations  of  the  plaintiff's  complaint 
are  true,  and  that  all  the  allegations  of 
the  defendant's  answer,  so  far  as  they  are 
inconsistent  with  the  allegations  of  said 
complaint,  are  not  true,  is  not  sufficient 
(Krug  V.  Lux  Brewing  Co.,  129  Cal.  322; 
61  Pac.  1125;  Bank  of  Woodland  v.  Tread- 
well,  55  Cal.  379;  and  see  Continental 
Building  etc.  Ass'n  v.  Wilson,  144  Cal.  776; 
78  Pac.  254) ;  nor  is  a  finding  that  all  the 
issues  of  fact  raised  by  the  pleadings  are 
hereby  found  and  decided  in  favor  of  the 
plaintiff  and  against  the  defendant  (John- 
son v.  Squires,  53  Cal.  37) ;  nor  a  finding 
that  "the  foregoing  are  all  the  facts  of 
the  case,  and  all  and  singular  the  allega- 
tions of  the  second  amended  answer  are 
untrue,  except  only  in  so  far  as  they  ac- 
cord with  the  foregoing  facts"  (Harlan  v. 
Ely,  55  Cal.  340) ;  nor  a  finding  that  all 
other  averments  in  the  pleailiugs  herein 
and  in  issue,  not  comi)rised  in  and  passed 


685 


FINDINGS — LAW    AND    EQUITY — CONSTRUCTION. 


§633 


upon  in  these  findings,  are  not  true.  Per- 
kins V.  West  Coast  Lumber  Co.,  120  Cal. 
27;  .j2  Pac.  118. 

Findings  in  actions  at  law.  Findings 
of  fact  may  be  embodied  in  the  decree  of 
foreclosure.  Locke  v.  Klunker,  123  Cal. 
2;!1;  5.5  Pac.  99.'5.  Recitals  in  a  decree  of 
foreclosure  constitute  sufticicnt  findings,  if 
findings  are  required.  J-Iiberuia  Sav.  &  L. 
Soc.  V.  Clarke,  110  Cal.  27;  42  Pac.  42.5. 
Findings  are  required  in  an  action  of  un- 
lawful detainer.  Lee  Chuck  v.  Quan  Wo 
Chong  &  Co.,  91  Cal.  593;  28  Pac.  45. 

Findings  in  suits  in  equity.  In  suits  in 
equity,  no  findings  of  fact  are  necessary 
to  support  the  judgment  (Lyons  v.  Lyons, 
IS  Cal.  447);  and  the  general  verdict  of  a 
jury  is  determinative  of  the  issues  made 
by  the  pleadings.  Learned  v.  Castle,  67 
Cal.  41;  7  Pac.  34;  and  see  Warring  v. 
Freear,  64  Cal.  54;  28  Pac.  115;  Stockman 
V.  Riverside  Land  etc.  Co.,  64  Cal.  57;  28 
Pac.  116;  Bell  v.  Marsh,  80  Cal.  411;  22 
Pac.  170.  The  presumption  in  favor  of 
the  correctness  of  a  finding  does  not  apply 
to  a  i)roceeding  in  equity,  tried  upon  the 
complaint,  answer,  and  exhibits.  Dewey  v. 
Bowman,  8  Cal.  145.  The  adoption  of  a 
verdict  is  equivalent  to  a  finding  by  the 
court,  to  the  extent  to  which  the  verdict 
covers  the  issues  made  by  the  pleadings, 
and  it  is  then  the  duty  of  the  court  to 
fin(i  upon  all  the  issues  not  covered  by  the 
verdict,  unless  such  findings  are  waived. 
Warring  v.  Freear,  64  Cal.  54 ;  28  Pac.  115. 

Findings  in  special  proceedings.  This 
section  relates  to  the  trial  of  civil  actions, 
and  not  to  special  proceedings.  Lvons  v. 
Marcher,  119  Cal.  382;  51  Pac.  559.  The 
court  is  not  required  to  make  findings  of 
fact  in  proceedings  in  aid  of  execution 
(Lyons  v.  Marcher,  K9  Cal.  382;  51  Pac. 
559);  nor  written  findings  of  fact  and  con- 
clusions of  law  in  a  proceeding  for  the  dis- 
barment of  an  attorney.  Disbarment  of 
Danford,  157  Cal.  425;  108  Pac.  322.  It 
has  never  been  definitely  determined  that 
findings  are  necessary  in  all  matters  of 
probate  heard  before  the  court  alone;  such 
as  a  contest  over  the  account  of  an  execu- 
tor (Estate  of  Sanderson,  74  Cal.  199;  15 
Pac.  753),  or  a  contest  over  an  order  for 
the  sale  of  real  proj^erty  (Estate  of  Argu- 
ello,  85  Cal.  151;  24  Pac.  641),  or  a  con- 
test over  the  setting  apart  of  a  homestead 
(Estate  of  Adams,  128  Cal.  380;  57  Pac.  ' 
569;  60  Pac.  965),  as  such  contests  do  not 
conduce  to  the  develojiment  of  such  issues 
as  arise  upon  the  pleadings  in  a  civil 
action;  and  in  such  j)r()ceedings  it  is  not 
incumbent  upon  the  court  to  make  and  file 
express  findings  (Estate  of  Levinson,  108 
Cal.  450;  41  Pac.  483;  42  Pac.  479);  but 
issues  joined  in  probate  proceedings  are 
tried  and  determined  by  the  court  as  in 
civil  cases;  and  upon  trial  by  the  court 
without  a  jury,  the  parties  are  entitled  to 


findings,  unless  they  are  waived  (Estate  of 
Burton,  63  Cal.  Sti;  Estate  of  Crosby,  55 
Cal.  574;  and  see  Miller  v.  Lux,  100  Cal. 
609;  35  Pac.  345,  639);  and  when  the 
account  of  an  executor  is  assailed  in  any 
particular  for  matters  not  appearing  upon 
its  face,  the  court  may  pro|terly  make  ex- 
press findings  upon  such  issues,  and  when 
it  does  so,  such  findipgs  become  a  jiart  of 
the  judgment  roll.  Miller  v.  Lux,  lou  Cal. 
609;  35  Pac. 345,  639. 

Amendment  of  findings.  The  court  may 
change  or  nKjdiCy  its  findings  before  judg- 
ment, without  ordering  a  new  trial. 
Si)aulding  v.  Howard,  121  Cal.  194;  53  Pac. 
563;  and  see  Smith  v.  Taylor,  82  Cal.  533; 
23  Pac.  217.  Findings  of  fact  cannot  be 
changed  by  the  court  in  any  material  re- 
spect, after  final  judgment,  and  while  it  is 
allowed  to  stand  (Los  Angeles  County  v. 
Lankershim,  100  Cal.  525;  35  Pac.  153, 
556);  and,  after  tlie  findings  have  been 
filed,  and  judgment  entered  thereon,  the 
only  method  by  which  the  findings  can  be 
completely  changed  or  modified  is  by 
granting  a  new  trial;  and  until  they  are 
set  aside,  they  stand  in  their  integrity  as 
origiuallv  made.  Ilawxhurst  v.  Rathgeb, 
119  Cal. '531;  63  Am.  St.  Rep.  142;  51  Pac. 
846. 

Stipulation,  effect  on  findings.  Where 
an  action  is  submitted  upon  stipulate<l 
facts  showing  that  the  plaintiff  is  entitled 
to  judgment,  the  making  of  ailditional  find- 
ings by  the  court  is  unnecessary;  and  if 
the  stipulated  facts  warrant  a  judgment, 
it  should  stand.  Los  Angeles  v.  Los  An- 
geles etc.  Milling  Co.,  152  Cal.  645;  93 
Pac.  869,  1135.  A  written  stipuhitiou,  that 
certain  allegations  of  a  pleading  are  true, 
amounts  to  an  agreed  statement  of  facts, 
and  no  findings  thereon  are  required. 
Alderson  v.  Cutting,  163  Cal.  503;  Ann. 
Cas.  1914A,  1;  126  Pac.  157.  A  stipula- 
tion, that  a  party  introduced  evidence  on 
an  issue  does  not  take  the  place  of  evi- 
dence to  show  whether  the  finding  was 
justified  thereby:  such  stipulation,  to  a 
certain  extent,  deprives  the  appellate  court 
of  the  power  to  determine  the  appeal  upon 
the  real  facts  of  the  ease.  Estate  of  Car- 
penter, 127  Cal.  582;  60  Pac.  162.  Where 
findings  were  waived,  all  the  issues  made 
by  the  pleadings  are  presumed  to  have 
been  found  in  favor  of  the  successful 
party.  Antonelle  v.  Board  of  New  City 
Hall  Comm'rs,  92  Cal.  228;  28  Pac.  270; 
Pacific  Investment  Co.  v.  Ross,  131  Cal.  8; 
63  Pac.  67. 

Construction  of  findings.  Findings  must 
be  so  construed  as  to  suj)port  the  judg- 
ment, if  possible.  Wagner  v.  El  Centro 
Seed  etc.  Co.,  17  Cal.  App.  387;  119  Pac. 
952;  Rossi  v.  Beaulieu  Vineyard,  20  Cal. 
App.  770;  130  Pac.  201.  Findings  of  fact 
are  like  the  special  verdict  of  a  jury:  they 
must     be     taken    in    connection    with     the 


§633 


TRIAL   BY   COURT. 


686 


pleadings  to  support  the  judgment;  and 
when  the  language  of  a  finding  is  equivo- 
cal, that  construction  which  accords  with 
the  pleadings  and  supports  the  judgment 
should  be  adopted  (Kennedy  &  Shaw  Lum- 
ber Co.  V.  S.  S.  Construction  Co.,  123  Cal. 
584;  56  Pac.  457);  and  findings  of  fact 
should  receive  such  a  construction  as  will 
uphold  rather  than  defeat  the  judgment; 
and  when,  from  the  'facts  found  by  the 
court,  other  facts  may  be  inferred  which 
will  support  the  judgment,  such  inference 
will  be  deemed  to  have  been  made  by  the 
trial  court.  Breeze  v.  Brooks,  97  Cal.  72; 
22  L.  R.  A.  256;  31  Pac.  742;  Warren  v. 
Hopkins,  110  Cal.  506;  42  Pac.  986;  Gould 
V.  Eaton,  111  Cal.  639;  52  Am.  St.  Rep. 
201;  44  Pac.  319;  Perkins  v.  West  Coast 
Lumber  Co.,  129  Cal.  427;  62  Pac.  57; 
Krasky  v.  Wollpert,  134  Cal.  338;  66  Pac. 
309;  De  Haven  v.  Berendes,  135  Cal.  178; 
67  Pac.  786;  People's  Home  Sav.  Bank  v. 
Rickard,  139  Cal.  285;  73  Pac.  858;  Paine 
V.  San  Bernardino  Valley  Traction  Co., 
143  Cal.  654;  77  Pac.  659.  Findings  are 
to  be  read  and  considered  together,  and 
liberally  construed  in  support  of  the  judg- 
ment, and,  if  possible,  are  to  be  recon- 
ciled, so  as  to  prevent  any  conflict  upon 
material  points  (People's  Home  Sav.  Bank 
V.  Rickard,  139  Cal.  285;  73  Pac.  858;  and 
see  Ames  v.  San  Diego,  101  Cal.  390;  35 
Pac.  1005;  Murray  v.  Tulare  Irrigation 
Co.,  120  Cal.  311;  49  Pac.  563;  Mitchell  v. 
Hutchinson,  142  Cal.  404;  76  Pac.  55); 
and  the  language  should  not  be  strained 
by  the  court  to  make  out  a  case  of  con- 
flict; but  the  findings  should  be  recon- 
ciled, if  it  can  be  reasonably  done 
(Alhambra  etc.  Water  Co.  v.  Richardson, 
72  Cal.  598;  14  Pac.  379;  Heaton-Hobsou 
Associated  Law  Ofiiees  v.  Arper,  145  Cal. 
282;  78  Pac.  721;  Schultz  v.  McLean,  93 
Cal.  329;  28  Pac.  1053);  and  they  cannot 
be  altogether  detached  from  each  other 
and  considered  piecemeal;  and  if  a  par- 
ticular finding  is  doubtful  or  obscure,  ref- 
erence may  be  had  to  the  context  for  the 
purpose  of  ascertaining  the  true  meaning. 
Mott  V.  Ewing,  90  Cal.  231;  27  Pac.  194. 
The  findings  come  after  the  case  is  tried, 
considered,  and  determined,  and  after  the 
character  of  the  judgment,  whether  right 
or  wrong,  is  fixed;  they  are  merely  inci- 
dental to  the  judgment;  and  to  test  their 
sufficiency  by  a  standard  which  exacts  the 
extreme  of  accurate  statement  and  minute 
detail  is  to  put  the  instrument  in  the  place 
of  the  princijial.  Millard  v.  Supreme  Coun- 
cil, 81  Cal.  340;  22  Pac.  864.  The  trial 
court  may  draw  any  inference  of  fact 
from  the  evidence  before  it  or  from  the 
facts  found  by  it;  and  the  appellate  court 
will  not  draw  a  different  inference  to  de- 
feat the  judgment.  Paine  v.  San  Bernar- 
dino Valley  etc.  Co.,  143  Cal.  654;  77  Pac. 
659;    Breeze    v.    Brooks,    97    Cal.    72;    22 


L.  R.  A.  256;  31  Pac.  742;  Gould  v.  Eaton, 
111  Cal.  639;  52  Am.  St.  Rep.  201;  44  Pac. 
319;  People's  Home  Sav.  Bank  v.  Rickard, 
139  Cal.  285;  73  Pac.  858.  A  finding  of 
fact  is  not  affected  by  a  conclusion  of  law 
inconsistent  therewith.  Niles  v.  Edwards, 
90  Cal.  10;  27  Pac.  159. 

Effect  of  defective  findings,  or  of  want  of 
findings.  A  defect  in  the  findings  is  fatal 
to  the  judgment.  Cargnani  v.  Cargnani, 
16  Cal.  App.  96;  116  Pac.  306.  Defective 
findings,  or  the  absence  of  any  findings, 
do  not  render  a  judgment  a  nullity,  but 
merely  constitute  grounds  for  reversal  on 
appeal;  and  the  judgment  cannot  be  col- 
laterally attacked  because  of  them.  Breeze 
V.  Doyle,  19  Cal.  101. 

Proposed  findings,  submission  of.  Pro- 
posed findings  upon  propositions  of  law, 
submitted  to  the  court  after  it  has  orally 
announced  its  decision,  but  before  the 
filing  of  its  findings,  are  properly  refused 
consideration.  Wheatland  Mill  Co.  v.  Pir- 
rie,  89  Cal.  459;  26  Pac.  964.  The  refusal 
of  findings  presented  to  the  court  with  the 
request  that  it  find  the  same  as  facts  in 
the  case,  is  not  erroneous:  a  party  desiring 
a  finding  upon  a  particular  point  should 
specify  the  point,  without  dictating  the 
terms  of  the  finding.  Edgar  v.  Stevenson, 
70  Cal.  286;  11  Pac.  704.  An  exception 
to  a  refusal  of  the  request  of  a  party  that 
the  court  find  upon  certain  issues,  is  a 
practice  not  recognized  by  the  code,  and 
such  ruling  cannot  be  reviewed  upon  ap- 
peal, merely  as  an  error  of  law;  but  it  is 
the  duty  of  the  court  to  find  upon  all  the 
material  issues,  regardless  of  the  request 
of  the  parties.  Haight  v.  Tryon,  112  Cal. 
4;  44  Pac.  318. 

Findings.    See  note  ante,  §  607. 

Distinction  between  findings  and  conclu- 
sions. The  line  of  demarcation  between 
questions  of  fact  and  conclusions  of  law 
is  not  easily  drawn  in  all  cases;  if,  from 
the  facts  in  evidence,  the  result  can  be 
reached  by  that  process  of  natural  reason- 
ing adopted  in  the  investigation  of  the 
truth,  it  becomes  an  ultimate  fact,  to  be 
found  as  such;  but  if  resort  must  be  had 
to  the  artificial  processes  of  the  law  to 
reach  a  final  determination,  the  result  is  a 
conclusion  of  law.  Levins  v.  Rovegno,  71 
Cal.  273;  12  Pac.  161;  Weidenmueller  v. 
Stearns  Ranchos  Co.,  128  Cal.  623;  61  Pac. 
■374.  The  finding  of  a  sale  and  delivery  is 
of  an  ultimate  fact,  and  not  of  a  mere 
conclusion  of  law.  Napa  Valley  Packing 
Co.  V.  San  Francisco  Relief  etc.  Funds,  16 
Cal.  App.  461;  118  Pac.  469.  The  conclu- 
sions reached  frequently  partake  of  the 
nature  of  both  law  and  fact;  and  where 
there  is  any  doubt,  it  should  be  resolved 
in  favor  of  the  judgment.  Butler  v. 
Agnew,  9  Cal.  App.  327;  99  Pac.  395. 

Conclusions  of  law,  what  are.  The  con- 
clusions  of  law   are  what,   in   the  opinion 


687 


CONCLUSIONS  OP  LAW — DECISION — JUDGMENT. 


§633 


of  the  .iudge,  constitute  the  law  of  the 
case,  arising  from  and  applicable  to  the 
facts  proved  or  admitted.  Sears  v.  Dixon, 
33  Cal.  32G.  A  finding  that  a  cause  of  ac- 
tion is  barred  by  the  statute  is  properly 
finding  of  a  fact,  and  need  not  be  placed 
among  the  conclusions  of  law  (ypaulding 
V.  Howard,  121  Cal.  194;  53  Vnc.  563); 
but  a  finding  that  there  was  not  a  con- 
version is  a  finding  of  a  conclusion  of  law, 
and  not  of  an  ultimate  fact,  where  the 
facts  found  show  a  conversion.  Niles  v. 
Edwards,  90  Cal.  10;  27  Pac.  159.  An  or- 
der for  judgment  in  accordance  with  the 
findings  of  fact,  is  a  sufficient  conclusion 
of  law,  where  it  is  apparent  that  if  more 
specific  conclusions  of  law  had  been  stated, 
they  would  have  been  in  favor  of  the 
party  for  whom  judgment  was  ordered. 
Rea  V.  Haffenden,  116  Cal.  596;  48  Pac. 
716;  Anderson  v.  Blean,  19  Cal.  App.  581; 
126  Pac.  So9. 

Propositions  of  law,  when  submitted. 
Where  a  cause  has  been  tried,  and  sub- 
mitted for  decision  to  the  court  upon  the 
law  and  the  facts,  and  the  court  has  orally 
announced  its  decision,  but  has  not  filed 
its  findings,  it  cannot  be  compelled  to 
pass  upon  propositions  of  law  su'bmitted  to 
it  as  proposed  findings  (Wheatland  Mill 
Co.  V.  Pirrie,  89  Cal.  459;  26  Pac.  964); 
nor  is  there  any  authority  for  the  prac- 
tice, at  the  close  of  a  trial  by  the  court, 
of  presenting  propositions  of  law,  which 
the  court  is  requested  to  declare  as  legal 
principles  applicable  to  the  facts  of  the 
case,  and  to  render  its  decision  in  accord- 
ance therewith.  Lamb  v.  Harbaugh,  105 
Cal.  680;  39  Pac.  56;  Touchard  v.  Crow,  20 
Cal.  150;  81  Am.  Dec.  108;  Estate  of  Page, 
57  Cal.  238;  Wilson  v.  Wilson,  64  Cal.  92; 
27  Pac.  861. 

Effect  of  erroneous  conclusions  of  law. 
An  erroneous  conclusion  of  law  is  not 
ground  for  reversal,  if  the  judgment  is  cor- 
rect (Spencer  v.  Duncan,  107  Cal.  423;  40 
Pac.  549;  Helm  v.  Dumars,  3  Cal.  454; 
Eleven  v.  Freer,  10  Cal.  172;  Haffley  v. 
Maier,  13  Cal.  13;  Kidd  v.  Teeple,  22  Cal. 
255;  Davis  v.  Baugh,  59  Cal.  568;  Miller 
V.  Hicken,  92  Cal.  229;  28  Pac.  339);  but 
findings  of  fact  are  like  a  special  ver- 
dict, and  an  erroneous  conclusion  renders 
erroneous  any  judgment  entered  thereon, 
like  a  general  verdict  inconsistent  with  the 
special  verdict.  Simmons  v.  Hamilton,  56 
€al.  493. 

Amendment  of  conclusions  of  law.  •  Con 
elusions  of  law  upon  the  facts  found  may 
be  changed  by  the  court  at  any  time  before 
the  entry  of  judgment;  and  such  change 
may  be  made  by  the  successor  of  the  judge 
who  tried  the  cause  (Crim  v.  Kcssing,  89 
Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  Condee  v.  Barton,  62  Cal.  1);  but 
this  cannot  be  done  after  the  entry  of 
judgment.  First  Nat.  Bank  v.  Dusy,  110 
•Cal.  69;  42  Pac.  476. 


The  decision,  what  constitutes.  The  de- 
cision is  the  findings  of  fact,  an<l  the 
conclusions  of  law  drawn  therefrom,  signed 
by  the  court  and  filed  with  the  clerk  as 
the  basis  of  the  judgment  entered  (Porter 
v.  Hopkins,  03  Cal.  53;  Sawver  v.  Sargent, 
65  Cal.  259;  3  Pac.  872;  Donohoe  v.  Mari- 
j)osa  Land  etc.  Co.,  06  Cal.  317;  5  Pac. 
495;  Hibernia  Sav.  &  L.  Soe.  v.  Moore,  68 
Cal.  156;  8  Pac.  824;  Clifford  v.  Allman, 
84  Cal.  528;  24  Pac.  292;  Crim  v.  Kessing, 
89  Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  San  Joaquin  Land  etc.  Co.  v.  West, 
99  Cal.  345;  33  Pac.  928;  Gainsley  v.  (Jain- 
sley,  3  Cal.  Unrep.  310;  44  Pac.  456;  and 
see  Miller  v.  Hicken,  92  Cal.  229;  28  Pac. 
339);  and  until  given  and  filed,  there  is 
no  decision  upon  which  judgment  can  be 
entered,  and  consequently  no  authority  for 
entering  any  judgment  (Crim  v.  Kessing, 
89  Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  Broder  v.  Conklin,  98  Cal.  360;  33 
Pac.  211;  Delger  v.  Jacobs,  19  Cal.  App. 
197;  125  Pac.  258);  and  the  facts  found, 
and  the  conclusions  of  law  drawn  there- 
from, are  the  decision  to  which  exception 
can  be  made  on  the  ground  of  the  insuf- 
ficiency of  the  evidence  to  sustain  it. 
Coveny  v.  Hale,  49  Cal.  552.  The  findings, 
under  this  section,  constitute  the  decision; 
hence,  a  notice  of  a  motion  directed 
against  the  findings,  and  not  against  the 
decision,  is  sufficient.  Haight  v.  Tryon,  5 
Cal.  Unrep.  761;  34  Pac.  712.  A  case  is 
not  tried  until  all  the  issues  are  disposed 
of,  and  there  is  no  decision  until  the  court 
has  passed  upon  the  facts,  and  drawn  its 
conclusions  of  law  therefrom.  Reclamation 
District  v.  Thisby,  131  Cal.  572;  63  Pac. 
918.  A  written  opinion  is  no  part  of  the 
decision:  the  findings  and  judgment  may 
properly  make  different  provisions  from 
tliose  indicated  in  such  opinion.  Wadleigh 
v.  Phelps,  149  Cal.  627;  87  Pac.  93.  A 
minute-entry,  made  prior  to  the  decision, 
directing  that  findings  and  decree  be 
drawn  in  favor  of  the  defendant,  does  not 
constitute  a  decision,  and  is  immaterial. 
Canadian  etc.  Trust  Co.  v.  Clarita  etc.  In- 
vestment Co.,  140  Cal.  672;  74  Pac.  301. 
The  making  and  the  filing  of  the  findings, 
and  the  entry  of  the  judgment,  are  only 
parts  of  the  decision,  and  together  they 
constitute  the  final  determination  of  the 
rights  of  the  parties.  Fox  v.  Hale  etc.  Min- 
ing Co.,  108  Cal.  478;  41  Pac.  328. 

Judgment  must  accord  with  conclusions. 
The  statement  of  the  conclusions  of  law 
precedes  the  rendition  of  a  final  judgment, 
and  the  judgment  must  accord  with  the 
conclusions;  but  the  conclusions  need  not 
be  twice  stated.  Gainsley  v.  Gainsley,  5 
Cal.  Unrep.  310;  44  Pac.  456;  ami"  see 
Miller  v.  Hicken,  92  Cal.  229;  2S  Pac.  339. 

Rendition  and  entry  of  judgment.  The 
findings  of  fact  and  conclusions  of  law  are 
the  only  papers  in  connection  with  a  judg- 
ment   that    the    trial   judge    is    required   to 


633 


TRIAL   BY    COURT. 


688 


sign  and  file;  the  signing  and  filing  of 
these  documents  constitute  the  rendering 
of  judgment,  and  there  is  no  other  judicial 
act  required  to  be  performed  by  the  court 
to  make  the  judgment  effectual.  Hoover  v. 
Lester,  16  Cal.  App.  151;  116  Pac.  382. 
Ordinarily,  a  party  in  whose  favor  a  case 
has  been  decided  is  entitled  to  have  final 
judgment  entered.  Deyoe  v.  Superior 
Court,  140  Cal.  476;  98  Am.  St.  Rep.  73; 
74  Pac.  28.  The  entry  of  the  judgment 
after  its  rendition  is  but  the  ministerial 
act  of  the  clerk;  the  rendition  of  the  judg- 
ment is  a  judicial  act  (San  Joaquin  Land 
etc.  Co.  V.  West,  99  Cal.  345;  33  Pac.  928; 
Estate  of  Cook,  77  Cal.  220;  11  Am.  St. 
Rep.  267;  1  L.  R.  A.  567;  17  Pac.  923;  19 
Pac.  431;  Broder  v.  Conklin,  98  Cal.  360; 
33  Pac.  211);  and  failure  to  enter  an  order 
or  judgment  does  not  avoid  or  delay  the 
effec^t  of  the  adjudication,  except  where 
some  statute  expressly  or  by  implication 
so  provides.  Otto  v.  Long,  144  Cal.  144 
77  Pac.  885;  Estate  of  Newman,  75  Cal 
213;  7  Am.  St.  Rep.  146;  16  Pac.  887;  Es 
tate  of  Cook,  77  Cal.  220;  11  Am.  St.  Rep 
267;  1  L.  R.  A.  567;  17  Pac.  923;  19  Pac 
431.  A  judgment  entered  by  the  clerk, 
in  pursuance  of  findings  and  an  order  for 
judgment  transmitted  to  him,  which  were 
signed  by  the  trial  judge  outside  of  the 
county  in  which  the  action  was  pending, 
is  regular.  Estudillo  v.  Security  Loan  etc. 
Co.,  158  Cal.  66;  109  Pac.  884!  The  fact 
that  the  judge  signed  the  judgment,  while 
it  does  not  make  his  action  any  more  or 
any  less  binding,  has  some  significance 
upon  the  question  of  his  intention.  O'Brien 
V.  O'Brien,  124  Cal.  422;  57  Pac.  225. 

Correction  of  clerical  errors  in  judgment. 
Clerical  misprisions  in  a  judgment  can  be 
corrected  at  any  time  by  an  order  of  the 
court  (Egan  v.  Egan,  90  Cal.  15;  27  Pac. 
22) ;  as,  where  the  clerk  inserted  an  addi- 
tional initial  in  the  defendant's  name  (Fay 
V.  Stubenrauch,  141  Cal.  573;  75  Pac.  174); 
and  where  he  made  an  error  in  one  of  the 
initials  of  a  person's  name  (Mitchell  v. 
Patterson,  120  Cal.  286;  52  Pac.  589);  and 
where  he  erroneously  added  interest  to 
the  amount  of  the  judgment  (San  Joaquin 
Land  etc.  Co.  v.  West,  99  Cal.  345;  33  Pac. 
928;  and  where  he  entered  judgment  in 
favor  of  all  of  the  defendants,  instead  of 
against  two  only  (Canadian  etc.  Trust  Co. 
V.  Clarita  etc.  Investment  Co.,  140  Cal.  672; 
74  Pac.  301);  and  such  amendments  may 
be  made  after  the  expiration  of  six  months 
from  the  entry  of  judgment  (Egan  v. 
Egan,  90  Cal.  15;  27  Pac.  22;  San  Joaquin 
Land  etc.  Co.  v.  West,  99  Cal.  345;  33 
Pac.  928);  and  the  record,  when  so  cor- 
rected, as  well  as  the  order  making  the 
correction,  is  conclusive  upon  any  other 
court  or  in  any  other  proceeding  in  which 
the  record  is  offered  in  evidence.  Galvin 
V.  Palmer,  134  Cal.  426;  66  Pac.  572. 


Correction  of  judicial  errors.  Judicial 
errors  can  be  remedied  only  through  mo- 
tion for  a  new  trial  or  by  appeal.  Cana- 
dian etc.  Trust  Co.  v.  Clarita  etc.  Invest- 
ment Co.,  140  Cal.  672;  74  Pac.  301;  San, 
Joaquin  Land  etc.  Co.  v.  West,  99  Cal.  345; 
33  Pac.  928;  Egan  v.  Egan,  90  Cal.  15; 
27  Pac.  22. 

Expiration  of  term  of  judge,  effect  on. 
subsequent  proceedings.  The  entry  of 
judgment  upon  a  decision,  being  but  a. 
ministerial  act,  can  be  performed  by  the- 
clerk  after  the  judge's  term  of  oiEce  has 
expired,  and  the  judgment  need  not  be- 
signed  by  the  judge;  hence,  a  judgment 
produced  from  the  original  records  of  the 
court  where  rendered  needs  no  signature 
or  exemplification.  Crim  v.  Kessing,  89 
Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  San  Joaquin  Land  etc.  Co.  v.  West,. 
99  Cal.  345;  33  Pac.  928.  The  judicial 
power  of  the  judge  ceases  upon  the  expira- 
tion of  his  term  of  oflSce,  and  it  is  not  com- 
petent for  him  thereafter  to  do  any  act 
necessary  to  complete  the  trial  of  any 
cause  then  remaining  unfinished.  Broder 
V.  Conklin,  98  Cal.  360;  33  Pac.  211;  and 
see  Mace  v.  O'Reilley,  70  Cal.  231;  11  Pac. 
721;  Connolly  v.  Ashworth,  98  Cal.  205;  33 
Pac.  60.  The  trial  of  a  cause  by  the  court 
is  not  concluded  until  the  decision  is  filed 
with  the  clerk;  and  when  the  term  of  ofSce 
of  the  judge  expires  before  the  decision 
is  filed,  the  fact  that  it  was  signed  by  him, 
and  filed  by  order  of  his  successor  in  office,, 
is  not  sufficient  to  sustain  a  judgment 
entered  thereon.  Connolly  v.  Ashworth,  98 
Cal.  205;  33  Pac.  60;  and  see  Hastings  v. 
Hastings,  31  Cal.  95;  Polhemus  v.  Car- 
penter, 42  Cal.  375;  Comstock  Quicksilver- 
Mining  Co.  V.  Superior  Court,  57  Cal.  625; 
Van  Court  v.  Winterson,  61  Cal.  615;  War- 
ring V.  Freear,  64  Cal.  54;  28  Pac.  115; 
Mace  V.  O'Reilley,  70  Cal.  231;  11  Pac. 
721.  The  trial  of  an  action  is  not  com- 
pleted until  a  decision  has  been  given  in. 
writing  and  filed  with  the  clerk;  and  if 
not  filed  until  after  the  expiration  of  the 
term  of  office  of  the  judge,  it  cannot  form 
the  basis  of  a  judgment.  Broder  v.  Conk- 
lin, 98  Cal.  360;  33  Pac.  211;  and  see  Con- 
nolly V.  Ashworth,  98  Cal.  205;  33  Pac.  60. 

New  trial.  The  "decision"  which  may 
be  vacated  on  a  motion  for  a  new  trial  is 
that  which  is  given  upon  the  original  trial 
of  the  question  of  fact,  and  upon  which 
the  judgment  is  to  be  entered;  and  the 
provision  that  the  judgment  is  to  be  en- 
tered upon  the  decision  implies  that  it  is 
subsequent  to  and  dependent  upon  the  de- 
cision. Brison  v.  Brison,  90  Cal.  323;  27 
Pac.  186.  The  court  must  find  upon  all 
the  material  issues,  regardless  of  any  re- 
quest of  the  parties,  and  a  failure  in  this 
respect  is  ground  for  a  new  trial  as  a  de- 
cision against  law  (Haight  v.  Tryon,  112 
Cal.   4;    44   Pac.   318;    and   see   Knight   v 


689 


NEW   TRIAL APPEAL. 


633 


Roche.  5G  Cal.  15;  Spotts  v.  Hanley,  85 
Cal.  155;  24  Pac.  73S) ;  but  see  contra, 
Churchill  v.  Flournoy,  127  Cal.  355;  59 
Pac.  791.  Where  the  court  fails  to  find 
upon  a  material  issue,  it  is  a  "decision 
against  law,"  and  a  new  trial  should  be 
grdnted,  so  that  the  court  may  make  a 
proper  finding  upon  the  issue  of  fact  re- 
tried. Elizalde  v.  Muri»hy,  11  Cal.  App. 
32;  103  Pac.  90-1.  An  objection  to  a  find- 
ing outside  of  the  issues  is  available  only 
upon  an  appeal  from  the  judgment,  and  is 
not  ground  for  the  granting  of  a  motion 
for  a  new  trial.  Power  v.  Fairbanks,  146 
Cal.  611;  SO  Pac.  1075.  Where  all  the 
issues  of  fact  raised  by  the  pleadings  are 
found  by  the  court,  and  the  findings  are 
correct,  an  erroneous  judgment  drawn  from 
those  facts  cannot  be  corrected  by  means 
of  a  new  trial.  Kaiser  v.  Dalto,  140  Cal. 
167;  73  Pac.  82S.  Where  every  material 
issue  has  been  decided  in  favor  of  the 
losing  party,  a  new  trial  will  not  be 
awarded:  his  only  remed}''  is  by  appeal 
from  the  judgment.  Sharp  v.  Bowie,  142 
Cal.  462;  76  Pac.  62;  and  see  Martin  v. 
Matfield,  49  Cal.  42;  Brison  v.  Brison,  90 
Cal.  323;  27  Pac.  186;  Bode  v.  Lee,  102  Cal. 
583;  36  Pac.  936;  Eauer  v.  Fay,  128  Cal. 
523;  61  Pac.  90;  Swift  v.  Occidental  Min- 
ing etc.  Co.,  141  Cal.  161;  74  Pac.  700.  A 
judgment  based  upon  contradictory  find- 
ings is  a  decision  again'st  law,  for  which 
a  new  trial  mav  be  granted.  Langan  v. 
Langan,  89  Ca.h  186;  26  Pac.  764.  The 
failure  to  find  upon  a  material  issue  is  a 
ground  for  a  new  trial  of  such  issue. 
Power  V.  Fairbanks,  146  Cal.  611;  80  Pac. 
1075.  The  examination  on  motion  for  a 
new  trial  is  limited  to  a  consideration  of 
the  sufficiency  of  the  evidence  to  sustain 
the  findings  of  fact,  and  whether  any  er- 
rors of  law  occurred  at  the  trial.  Churchill 
V.  Fkniruoy,  127  Cal.  355;  59  Pac.  791. 

Appeal.  On  an  appeal  from  an  order 
denying  a  new  trial,  neither  objections 
that  certain  findings  were  outside  of  the 
issues,  nor  the  sufficiency  of  the  findings 
to  support  the  judgment,  or  of  a  cross- 
complaint  to  state  a  cause  of  action,  can 
be  considered  (Bell  v.  Southern  Pacific 
R.  R.  Co.,  144  Cal.  560;  77  Pac.  1124);  nor 
the  insufficiency  of  the  findings  to  support 
the  conclusions  of  law,  or  of  the  complaint 
to  state  a  cause  of  action,  nor  the  uncon- 
stitutionalitv  of  a  statute  (Petaluma  Pav- 
ing Co.  V.  Singley,  136  Cal.  616;  69  Pac. 
426;  and  see  Bode  v.  Lee,  102  Cal.  583; 
36  Pac.  936;  Pierce  v.  Willis,  103  Cal.  91; 
36  Pac.  1080;  Churchill  v.  Flournoy.  127 
Cal.  355;  59  Pac.  791);  nor  the  questions 
whether  the  judgment  is  supported  by  the 
complaint  or  the  findings,  or  whether  the 
findings  are  contradictory  to  and  inconsis- 
tent with  the  pleading.  Moore  v.  Douglas, 
132  Cal.  399;  64  Pac.  705;  and  see  Rauer 
V.  Fay,  128  Cal.  523;  61  Pac.  90;  Swift  v. 
1  Fair. — 44 


Occidental  Mining  etc.  Co.,  141  Cal.  161; 
74  Pac.  700.  A  decree  not  warrantecl 
either  by  the  allegations  of  the  complaint 
or  by  the  findings  of  the  court  will  be  or- 
dered modified  on  apjical.  Carinl(hael  v. 
McGillivray,  57  Cal.  8.  The  failure  to 
find  upon  a  material  issue  is  not  ground 
for  the  reversal  of  a  judgment  otherwise 
correct,  unless  it  appears  by  the"  state- 
ment or  bill  of  exccjitions  that  evi<lence 
was  given  ujion  such  issue.  Kaiser  v. 
Dalto,  140  Cal.  167;  73  Pac.  828.  A  fail- 
ure to  find  upon  an  issue,  a  finding  upon 
which  would  merely  invalidate  a  judgment 
fully  su{)jiorted  by  the  findings,  is  not  a 
ground  for  reversal,  unless  it  is  shown  that 
evidence  was  submitted  in  relation  to  the 
issue.  Winslow  v.  Gohransen,  88  Cal.  450; 
26  Pac.  504;  Dedmon  v.  Moffitt,  89  Cal. 
211;  26  Pac.  800;  Brady  v.  Burke,  90  Cal. 
1;  27  Pac.  52;  Rogers  v.  Duff,  97  Cal.  66; 
31  Pac.  836;  Gregory  v.  Gregory,  102  Cal. 
50;  36  Pac.  364;  F.  A.  Hihn  Co.  v.  Flcckner, 

106  Cal.  95;  39  Pac.  214;  Marchant  v. 
Hayes,  117  Cal.  669;  49  Pac.  840;  Bliss 
V.  Sneath,  119  Cal.  526;  51  Pac.  848; 
Roebling's  Sons  Co.  v.  Gray,  139  Cal.  607; 
73  Pac.  422.  A  decision  is  against  law, 
where  there  is  a  failure  to  find  upon  a 
material  issue,  and  it  may  be  reviewed 
upon  appeal  from  an  order  granting  or 
refusing  a  new   trial.    Adams   v.   Helbing, 

107  Cal.  298;  40  Pac.  422;  Clark  v.  Hewitt, 
136  Cal.  77;  68  Pac.  303;  Kaiser  v.  Dalto, 
140  Cal.  167;  73  Pac.  828.  Where  a  finding 
is  not  determinative  of  an  issue,  it  is  in- 
sufficient; but  an  "attempted"  finding,  filed 
as  a  finding,  must  be  treated  as  such  for 
the  purpose  of  review,  and  as  showing 
that  fimiings  were  not  waived.  Kimball  v. 
Stormer,  65  Cal.  116;  3  Pac.  408.  The 
contention  that  a  finding  is  not  within  the 
issues  cannot  be  made  on  appeal,  if,  at 
the  trial,  no  objection  was  made  to  the 
evidence  in  support  thereof.  McDougald 
v.  Hulet,  132  Cal.  154;  64  Pac.  278.  Where 
the  defendant  went  to  trial  upon  the 
theory  that  there  was  a  material  issue,  and 
did  not  object  to  the  evidence  upon  such 
issue,  and  the  court  made  findings,  with 
no  objection  from  either  party,  neither 
party  will  be  allowed  on  appeal  to  say 
that  there  was  no  such  issue.  Carroll  v. 
Briggs,  138  Cal.  452;  71  Pac.  501.  An 
order  of  the  court,  not  prayed  for  in  the 
complaint,  is  not  erroneous  as  a  matter  of 
law,  nor  is  there  any  presumption  against 
its  validity:  if  erroneous  as  a  matter  of 
fact,  the  appellant  should  cause  such  error 
to  appear.  Bank  of  Ukiah  v.  Reed,  131 
Cal.  597;  63  Pac.  921.  Facts  found  by 
the  court,  not  sustaining  the  judgment, 
can  be  shown  on  an  apjieal  without  any 
bill  of  exceptions;  and  if  the  decision  upon 
any  controverted  question  of  fact  results 
from  a  failure  to  apply  properly  the  law- 
applicable    thereto,    or    from    a    considera- 


634 


TRIAL   BY    COURT. 


690 


tion  of  evidence  not  entitled  to  considera- 
tion, this  error  can  be  reviewed  only  on 
a  bill  of  exceptions.  Lamb  v.  Harbaugh, 
lOoCal.  680;  39  Pac.  56. 

Presumption  in  favor  of  findings. 
Where  there  are  no  express  findings  in 
the  record  on  appeal,  the  presumption  of 
law  is,  that  the  court  found  all  the  mat- 
ters of 'fact  in  issue  necessary  to  support 
its  judgment;  and  if  the  evidence  is  in- 
sufficient to  justify  the  court  in  finding 
any  material  or  necessary  fact,  such  im- 
plied finding  may  be  excepted  to  in  the 
same  manner  and  with  the  same  effect  as 
if  it  were  an  express  finding.  Blanc  v. 
Paymaster  Mining  Co.,  95  Cal.  524;  29 
Am.  St.  Eep.  149;  30  Pac.  765.  In  the 
absence  of  evidence  in  the  record  on  ap- 
peal, the  presumption  is,  that  there  was 
sufficient  evidence  to  support  the  findings, 
and  that  it  went  in  without  objection,  and 
was  admissible  under  the  pleadings. 
Beardsley  v.  Clem,  137  Cal.  328;  70  Pac. 
175. 

CODE    COMMISSIONERS'    NOTE.       The   two 

preceding  sections  were   based  upon  the  theory: 

1.  That  speedy  decisions  are  desirable; 

2.  That  the  system  of  "implied"  findings  ought 
not  to  be  tolerated. 

First.  It  is  provided  that  all  causes  tried  by 
the  court  must  be  decided  within  twenty  days  af- 
ter their  final  submission.  Whilst  it  is  important 
that  all  cases  should  be  correctly  decided  in  the 
first  instance,  it  is  equally  important  that  they 
should  be  speedily  decided.  The  expense  attend- 
ing litigation  in  this  state  is  so  great,  that,  as  a 
general  rule,  a  person  had  better,  in  the  first 
instance,  lose  his  estate,  than,  at  the  end  of  three 
years'  litigation,  find  his  claim  to  it  established, 
^ut  the  title,  by  the  delay,  transferred  to  the  at- 
torneys and  other  officers  of  the  court.  There  is 
scarcely  a  case  that  a  judge  with  ordinary  indus- 
try cannot  as  well  decide  within  ten  days  as 
within  ten  years.  If  it  involves  points  of  great 
difficulty,  it  goes  to  the  supreme  court:  and  the 
sooner  it  reaches  there,  the  better  for  both  par- 
ties. It  may  be  said,  that  where  the  judge  holds 
court  in  counties  distant  from  each  other,  he  may 
not  be  able  to  forward  his  decision  within  the 
time  allowed.  The  answer  to  this  is,  that  he 
ought  to  decide  the  case  before  he  leaves.  An- 
other advantage  to  inure  from  requiring  the  decis- 


ion to  be  filed  within  a  given  time  is,  that  all 
notices  of  filing  decisions  may  be  dispensed  with. 
The  attorney  may,  at  the  end  of  twenty  days,  by 
inquiry,  ascertain  whether  or  not  a  decision  has 
been  made.  And  in  the  sections  relative  to  mo- 
tions for  new  trial,  etc.,  this  period  of  twenty 
days  has  been  taken  into  consideration,  and  no 
movement  is  required  by  either  party  within  that 
time. 

Second.  The  objections  to  the  system  of  implied 
findings  are  so  numerous,  that  there  was,  as  far 
as  the  commissioners  were  able  to  take  the  sense 
of  the  profession  upon  tlie  subject,  a  universal 
desire  to  do  away  with  it.  Findings  should  stand 
upon  the  same  footing  as  special  verdicts.  In 
fact,  it  may  be  said  that  if  any  presumptions  are 
to  be  indulged  in,  they  should  be  in  favor  of  the 
latter,  for  juries  are  composed  of  laymen,  whilst 
judges  are  presumed  to  be  learned  in  the  law. 
Yet,  under  the  old  system  of  implied  findings,  we 
had  the  absurdity  of  requiring  the  findings  made 
by  the  jury,  by  men  unlearned  in  the  law,  to 
support  any  judgment  that  may  be  rendered 
thereon,  whilst  the  finding  made  by  tlie  learned 
judge  would  support  the  judgment,  if  the  judg- 
ment could  be  supported  upon  any  conceivable 
state  of  facts  consistent  with  them.  Upon  this 
topic,  says  Justice  Sanderson,  speaking  for  the 
court,  in  Tewksbury  v.  Magraff,  33  Cal.  247:  "It 
may  well  be  doubted  whether  the  act  of  the  20th 
of  May,  1861  (so  far  as  it  relates  to  findings, 
and  reproduced  in  the  amendments  of  1866  to 
§  180  of  the  Practice  Act),  is  not  productive  of 
more  mischief  than  good.  It  certainly  proceeds 
upon  an  illogical  theory,  for  it  inverts  the  natural 
and  logical  order  of  the  proceedings.  Instead  of 
making  it  the  duty  of  the  successful  party  to  see 
that  the  findings  contain  facts  sufficient  to  sus- 
tain the  judgment,  it  makes  it  the  duty  of  the 
unsuccessful  party  to  see  that  it  contains  facts 
sufficient  to  reverse  it.  Instead  of  making  the 
finding  a  consistent  and  visible  foundation  for 
the  judgment  to  stand  upon,  the  statute  converts 
it  into  air,  or  a  mii^e  for  its  explosion.  This 
change  certainly  detracts  from  the  logic  of  the 
judgment  roll,  the  various  parts  of  which,  like 
the  members  of  a  Macedonian  phalanx,  should 
rest  upon  and  support  each  other,  and  entails  a 
practice  which,  in  a  majority  of  cases,  defeats 
the  end  which  findings  were  intended  to  sub- 
serve." It  is  believed  that  the  supreme  court,  as 
now  constituted,  are  unanimous  in  their  con- 
demnation of  the  system  of  implied  findings.  The 
members  of  that  court  occupy  a  position  that 
enables  them  to  see  the  evils  arising  from  it,  and 
their  opinion  had  controlling  weight  upon  the 
subject.  This  section  applies  to  equitable  as 
well  as  legal  actions.  Lyons  v.  Lyons,  18  Cal. 
447;  see  Walker  v.  Sedgwick,  5  Cal.  192;  Duff 
V.  Fisher,  15  Cal.  375;  see  note  to  §  635,  post. 


Findings  of  fact  may  be  waived  by 


§  634.     Waiving  findings  of  fact. 

several  parties  to  an  issue  of  fact : 

1.  By  failing  to  appear  at  the  trial ; 

2.  By  consent  in  writing  filed  wdth  the  clerk ; 

3.  By  oral  consent  in  open  court,  entered  in  the  minutes. 

In  all  cases  where  the  court  directs  a  party  to  prepare  findings,  a  copy 
of  said  proposed  findings  shall  be  served  upon  all  the  parties  to  the  action 
at  least  five  days  before  findings  shall  be  signed  by  the  court,  and  the  court 
shall  not  sign  any  findings  therein  prior  to  the  expiration  of  such  five  days. 

less  waived  in  some  one  or  more  of  three 
modes  mentioned.  Mulcahy  v.  Glazier,  51 
Cal.  626.  The  parties  are  entitled  to  find- 
ings, upon  the  trial  of  issues  joined  in 
proceedings  to  try  objections  on  the  con- 
firmation of  a  referee's  report,  unless  they 
are  waived.  Estate  of  Burton,  63  Cal.  36. 
In  case  of  default,  findings  are  not  neces- 
sary,  and   form   no   part   of   the   judgment 


Legislation  §  634.     1.  Enacted  March  11,  1872. 

2.  Amended  by  Stats.  1913,  p.  58,  (1)  in  in- 
troductory paragraph,  striking  out  "the"  before 
"several  parties"  (as  to  which,  qusere)  ;  (2)  in 
subd.  2,  striking  out  a  comma  after  "writing"; 
(3)    adding  the  final  paragraph. 

Necessity  for  findings.  This  section 
does  not  absolutely  and  unconditionally 
require  that  the  findings  of  fact  shall  be 
filed,  but  only  that  they  must  be  filed  un- 


691 


WANT   OP  FINDINGS — WAIVER — PRESUMPTION, 


§635 


roll.  Estate  of  Cook,  77  Cal.  220;  11  Am. 
St.  Rep.  267;  1  L.  R.  A.  567;  17  Pac.  923; 
19  Pac.  431. 

Effect  of  want  of  findings.  The  judg- 
ment  caiiiiut  be  pormittod  to  stand,  iu  the 
absence  of  findings  of  fact,  where  such 
findings  were  not  waived.  Dowd  v.  Clarke, 
51  Cal.  262;  Savings  and  Loan  Socictv  v. 
Thorne,  67  Cal.  53;  7  Pac.  36.  ^Vhe^e 
findings  are  not  filed  or  waived,  entry  of 
judgment  without  them  constitutes  error. 
Bennett  v.  Pardini,  63  Cal.  154;  Estate  of 
Burton,  63  Cal.  36.  Where  no  findings  of 
fact  were  made,  and  they  were  not  waived, 
the  court  may  order  its  judgment  set  asiile, 
and  restore  the  cause  to  the  calendar.  Van 
Court  V.  Winterson,  61  Cal.  615.  Where 
findings  of  fact  were  not  waived,  and  no 
findings  sufficient  to  support  the  judgment 
were  signed  or  filed,  there  must  be  a  re- 
versal, notwithstanding  a  stipulation  of 
the  existence  of  reversible  error  in  the 
record.  Pierson  v.  Pierson,  15  Cal.  App. 
o67;  115  Pac.  461. 

Construction  of  section.  In  cases  tried 
Tdj'  the  court,  written  findings  may  be 
waived,  as  prescribed  in  this  section.  Lee 
Sack  Sam  v.  Gray,  104  Cal.  243;  38  Pac.  85. 

Waiver  must  be  by  all.  The  phrase, 
■"several  parties  to  an  issue  of  fact,"  in- 
cludes all  parties,  and  applies  to  infants 
as  well  as  to  adults.  Western  Lumber  Co. 
V.  Phillips,  94  Cal.  54;  29  Pac.  328. 

Waiver  by  failure  to  appear  at  trial. 
Failure  to  attend  the  trial  is  a  statutory 
waiver  of  the  findings;  and  the  fact  that  a 
judgment  erroneously  refers  to  findings, 
when  none  exist,  is  of  no  consequence. 
Fincher  v.  Malcolnison,  96  Cal.  38;  30  Pac. 
835.  Appearing  only  for  the  special  pur- 
pose of  moving  for  a  continuance,  and  then 
withdrawing  from  the  case,  and  not  ap- 
pearing at  the  trial,  is  a  waiver  of  the  find- 
ings (Eltzroth  V.  Ryan,  91  Cal.  584;  27 
Pac.  932);  and  suffering  a  default  to  be 
entered,  and  failing  to  appear  at  the  trial, 
is  also  a  waiver  of  the  findings.  Hibernia 
Sav.  &  L.  Soc.  V.  Clarke,  110  Cal.  27;  42 
Pac.  425. 

By  consent  in  writing.  By  signing  a 
stipulation  in  writing,  waiving  findings,  a 
party  is  estopped  from  objecting  to  the 
want  thereof,  although  the  stipulation  was 
not  filed  until  after  entr^^  of  judgment. 
Dougherty  v.  Friermuth,  68  Cal.  24U;  9 
Pac.   98. 

By  oral  consent  in  open  court.  Where 
there  was  a  waiver  of  written  findings  by 
oral  consent  of  the  parties,  given  in  open 
court,  but  the  clerk,  through  inadvertence, 
failed  to  enter  the  fact  upon  the  minutes, 
the  court  may  correct  its  minutes  so  as  to 


show  the  real  facts.  Sullivan  v.  Hume,  4 
Cal.  Unrep.   Kil;  33  Pac.  1121. 

Notice  not  waiver.  Findings  are  not 
waived  by  giving  notice  of  motion  for 
new  trial.  Savings  and  Loan  Society  v. 
Thome,  67  Cal.  53;  7  Par.  36. 

Presumption  as  to  waiver.  Express  fiml- 
ings  by  the  court  are  necessary,  unless 
waived;  but  the  absence  of  such  findings 
from  the  record  is  not  a  fatal  defect,  un- 
less it  affirmatively  appears  that  they  were 
not  waived.  Richardson  v.  Eureka,  110 
Cal.  441;  42  Pac.  965.  On  appeal,  where 
no  findings  of  fact  were  filed,  it  must  be 
shown  by  the  bill  of  exceptions  that  they 
were  not  waived.  Mulcahy  v.  Glazier,  51 
Cal.  626;  Reynolds  v.  Brumagin,  54  Cal. 
254;  Campbell  v.  Coburn,  77  Cal.  36;  18 
Pac.  860;  Estate  of  Arguello,  85  Cal.  151; 
24  Pac.  641;  Tomlinson  v.  Avres,  117  Cal. 
568;  49  Pac.  717;  Leadbetter  v.  Lake,  118 
Cal.  515;  50  Pac.  686;  Horwege  v.  Sage, 
137  Cal.  539;  70  Pac.  621.  Where  no  find- 
ings appear,  it  will  be  presumed,  in  favor 
of  the  judgment,  that  written  findings 
were  waived.  Lee  Sack  Sam  v.  Gray,  104 
Cal.  243;  38  Pac.  85.  There  is  no  pre- 
sumption that  findings  were  waived,  where 
the  only  reasonable  inference  that  can  be 
drawn  from  the  record  is  directly  to  the 
contrary  (Saul  v.  Moscone,  16  Cal.  Ai>p. 
506;  118  Pac.  452);  and  if  findings  should 
have  been  made,  and  were  not,  it  will  be 
presumed  that  they  were  waived  (Horwege 
V.  Sage,  137  Cal.  539;  70  Pac.  621);  but 
this  presumption  has  no  force,  where  a 
writing,  clearly  intended  to  be  a  finding 
upon  a  material  issue,  was  filed  by  the 
court  (Kimball  v.  Stormer,  65  Cal.  116;  3 
Pac.  40S);  nor  has  the  presumption  any 
application  to  the  report  of  a  referee:  no 
provision  is  made  for  a  waiver  iu  such 
cases,  and  in  the  very  nature  of  the  case 
should  not  be.  Lee  Sack  Sam  v.  Gray,  104 
Cal.  243;  38  Pac.  85. 

Presumption  arising  from  waiver.  All 
the  issues  made  by  the  pleadings  are  pre- 
sumed to  have  been  found  in  favor  of  the 
successful  party,  where  findings  have  been 
waived.  Antonelle  v.  Board  of  New  City 
Hall  Comm'rs,  92  Cal.  228;  28  Pac.  270. 
Where  both  parties  expressly  waive  find- 
ings, every  intendment  is  in  favor  of  the 
judgment,  and  it  must  be  assumed  that 
the  court  found  all  of  the  facts  necessary 
to  sustain  the  judgment.  Bruce  v.  Bruce, 
16  Cal.  App.  353;  116  Pac.  994. 

Refusal  to  make  requested  findings  as  consti- 
tuting contrary  finding.    See  note  7  .Vnn.  Cas.  380. 

CODE  COMMISSIONERS'  NOTE.  See  note  to 
§  631,  ante. 


§  635.     [Related  to  the  preparation  of  findinfrs.     Repealed.] 


Legislation  §  635.     1.  f:narte(l  March  1  1,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  312. 

3.  Repealed  by  Code  Amdts.   1875-76.   p.   91. 

4.  By  Stats.   iSOl,  p.   140,  a  new   §    635  was 


added  (rode  commission  section),  which  provided 
that  "upon  trial  of  a  question  of  fact,  court  must 
pass  upon  questions  of  law,  upon  request";  held 
unconstitutional.    See  note  ante,  §  J. 


§§  636,638 


REFERENCES    AND    TRIALS    BY    REFEREES. 


69^ 


§  636.  Proceedings  after  determination  of  issue  of  law.  On  a  jud»ment 
for  the  plaintiff  upon  an  issue  of  law.  he  may  proceed  in  the  manner  pre- 
scribed by  the  first  two  subdivisions  of  section  five  hundred  and  eighty- 
five,  upon  the  failure  of  the  defendant  to  answer.  If  judgment  be  for  the 
defendant  upon  an  issue  of  law.  and  the  taking  of  an  account,  or  the  proof 
of  any  fact,  be  necessary  to  enable  the  court  to  complete  the  judgment,  a 
reference  may  be  ordered,  as  in  that  section  provided. 

Judgment  on  pleadings  proper  when.^ 
Judgment  on  the  pleadings  is  proper,, 
where  the  denials  of  the  answer  are  merely 
of  matters  of  law,  and  where  proof  of  the 
averments  in  the  answer  would  be  imma- 
terial. Heydenfeldt  v.  .Jacobs,  107  CaL 
373;  40  Pac.  492.  Where  judgment  is- 
granted  on  the  pleadings,  all  of  the  aver- 
ments of  the  answer  are  admitted  to  be 
true.  McGowan  v.  Ford,  107  Cal.  177;  40 
Pac.  231. 

Judgment  on  demurrer.  Where  one  of 
several  defendants  appears  and  demurs, 
and  the  demurrer  is  sustained,  it  is  error 
to  render  judgment  in  favor  of  the  de- 
fendants who  do  not  appear.  Farwell  v. 
Jackson,  28  Cal.  105. 

Leave  to  amend.  Where  a  demurrer  to 
a  complaint  was  sustained  without  leave 
to  amend,  a  judgment  for  the  defendant 
cannot  be  reversed  on  appeal,  on  the 
ground  that  leave  was  not  granted,  whfire 
no  leave  was  asked.  Barker  v.  Freeman, 
85  Cal.  533;  24  Pac.  926. 

Time  for  appeal.  Where  judgment  is 
duly  entered  on  sufficient  pleadings  and 
findings,  it  is  too  late,  after  the  lapse  of 
the  time  for  appeal,  to  inquire  whether  it 
is  warranted  by  the  law  and  the  facts  of 
the  case.  People  v.  Bank  of  Mendocino 
County,  133  Cal.  107;  65  Pac.  124. 

CODE  COMMISSIONERS'  NOTE.  Substituted 
for  §  181  of  the  Practice  Act. 


Issue  of  law.    Ante,  §  589. 
When  a  bar.    Post,  §  1908. 
Reference.    Post,  §§  638  et  seq. 
Leave   to    answer,    after   defendant's   demurrer 
overruled.'    Ante,  §  472. 

Default,  judgment  by.    Ante,  §  585. 
Judgment,  generally.     Post,  §  664. 

Legislation  §  636.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  181,  whicli  read:  "On  a 
judgment  upon  an  issue  of  law,  if  the  taking  of 
an  account  be  necessary  to  enable  the  court  to 
complete  the  judgment,  a  reference  may  be  or- 
dered." 

Default  for  not  answering.  A  defend- 
ant who  fails  to  answer  within  the  time 
allowed  by  the  court  on  the  overruling  of 
his  demurrer,  and  whose  default  is  entered, 
is  not  entitled  to  participate  in  the  fur- 
ther proceedings  in  the  ease.  People  v. 
Culverwell,  44  Cal.  620.  A  default  en- 
tered against  a  plaintiff  for  failure  to 
answer  the  cross-complaint  of  the  defend- 
ant, setting  forth  the  same  matter  of  coun- 
terclaim pleaded  in  his  answer,  cannot  de- 
prive the  plaintiff  of  his  right  to  prove 
the  cause  of  action  set  forth  in  his  com- 
jilaint.  Langford  v.  Langford,  136  Cal. 
507;  69  Pac.  235.  The  entry  of  judgment 
against  one  defendant,  who  failed  to  an- 
swer after  his  demurrer  was  overruled, 
without  at  the  same  time  entering  judg- 
ment against  a  co-defendant  who  had  not 
been  served,  is  in  accordance  with  the 
statute.  Edwards  v.  Hellings,  103  Cal.  204; 
37  Pac.  218. 


CHAPTER  VI. 

EEFEEENCES  AND  TRIALS  BY   REFEREES. 


§  641.  A  party  may  object.     Grounds  of  objection, 

§  642.  Objections,  liow  disposed  of. 

§  643.  Referees  to  report  within  twenty  days. 

I  644.  Effect  of  referee's  finding. 

§  645.  How  excepted  to,  etc. 


§  638.  Reference  ordered  upon  agreement  of  par- 
ties, in  what  cases. 

§  639.  Reference  ordered  on  motion,  in  what 
cases. 

§  640.  Referees  in  eminent-domain  proceedings 
involving  city,  etc. 

§  638.     Reference  ordered  upon  agreement  of  parties,  in  what  cases.    A 

reference  may  be  ordered  upon  the  agreement  of  the  parties  filed  with  the 
clerk,  or  entered  in  the  minutes : 

1.  To  try  any  or  all  of  the  issues  in  an  action  or  proceeding,  whether  of 
fact  or  of  law,  and  to  report  a  finding  and  judgment  thereon; 

2.  To    ascertain    a    fact   necessary   to    enable   the   court   to    determine    an 
action  or  proceeding. 


Reference  in  general. 

1.  Court  commissioners.    Ante,  §  259,  subd.  2. 

2.  Fees  for.    Post,  §  1028 

3.  Compulsory.     See  post,  §  639. 
Eeferees. 

1.   Number,  etc.     Post,  §  640. 


2.  Objections  to.     Post,  §§  641,  642. 

3.  Report   of.     Post,  §§  643-645. 

4.  Trial  by.    Post,  §  1053. 

Legislation  8  638.      Enacted    March    11.    1872; 
based    on    Practice    Act,    §    182,    as    amended    by 


<693 


PREREQUISITES— CONSENT — POWER  AND   DUTY    OP    REFEREE. 


§  638 


Stnts.  1865-66,  p.  S45.  which  had  the  words,  in 
subd.  2,  "to  proceed  and  determine  the  case," 
instead  of  "to  determine  an  action  or  proceeding." 

Appointment  discretionary.  The  court 
iiKiy  state  th<'  aicoiiiit  hotween  the  par- 
ties and  (ieteiiiiiiie  all  the  questions  in 
the  case;  but  the  better  and  safer  prac- 
tice is  to  refer  it  to  some  competent  per- 
son to  state  the  account,  although  the 
court  can  pursue  such  course  as  it  may 
<1eem  advisable.  Hidden  v.  .Jordan,  28  Cal. 
301;  Emerv  v.  Mason,  75  Cal.  222;  16  Pac. 
894. 

Prerequisites  to  reference.  A  reference 
in  which  there  is  no  order  of  court,  or 
agreement  filed  with  the  clerk  or  entered 
in  the  minutes,  is  a  voluntary  withdrawal 
of  the  case  from  the  jurisdiction  of  the 
court,  by  which  the  court  loses  all  control 
over  the  case,  and  it  has  no  authority 
afterwards  to  enter  ju<lgment  upon  the 
findings  of  the  referee,  except  by  consent 
of  the  parties.  Heslep  v.  San  Francisco,  4 
■Cal.  1. 

Consent  necessary  when.  An  issue  of 
fact,  in  an  action  at  law,  must  be  tried 
by  a  .jury,  unless  a  jury  is  waived;  it  can- 
not be  referred,  except  upon  the  written 
consent  of  both  parties.  Seaman  v.  Mari- 
ani,  1  Cal.  336.  A  reference  which  would 
amount  to  the  finding  of  a  jury,  and  have 
the  direct  effect  of  depriving  the  party 
of  the  right  to  trial  by  jury,  cannot  be 
ordered  without  the  consent  of  the  party 
in  writing,  or  entered  in  the  minutes. 
Smith  v.  Pollock,  2  Cal.  92.  Where,  by 
stipulation  of  the  parties,  a  reference  is 
made,  and  the  referee  reports  a  judgment, 
which  is  entered,  the  court  cannot,  after 
granting  a  new  trial,  again  refer  the  case 
to  the  same  or  any  other  referee,  with- 
out a  new  consent  of  the  parties:  upon 
the  report  and  the  entry  of  the  judg- 
ment, the  stipulation  has  no  further  force. 
Daverkosen  v.  Kelley,  43  Cal.  477.  A 
reference  cannot  be  ordered  for  the  pur- 
pose of  trying  all  the  issues  in  partition 
proceedings,  where  there  is  a  party  whose 
name  is  unknown,  and  whose  consent,  con- 
sequently, cannot  be  procured.  Hastings 
v.  Cunningham,  35  Cal.  549.  The  consent 
of  the  parties  is  not  necessary  to  a  refer- 
ence in  suits  in  equity.  Smith  v.  Rowe, 
4  Cal.  6. 

Reference  to  try  issues.  .\n  order 
which  does  not  require  the  referee  to  re- 
port the  facts,  but  to  try  the  issues  and 
report  his  findings  thereon,  is  general,  and 
not  special.    Hihn  v.  Peck,  30  Cal.  280. 

Reference  of  accounting.  An  account- 
ing mav  be  ordered  through  a  reference. 
Pox  v.  Hall,  164  Cal.  287;  12S  Pac.  749. 

Duty  of  referee.  Where  the  court  has 
decided  the  principles  upon  which  an  ac- 
count should  be  stated  and  settled,  it  is 
the  duty  of  the  referee  simply  to  take  the 
account  in  pursuance  of  those  principles. 
Smith  V.  Walker,  38  Cal.  385;  99  Am.  Dec. 


415.  The  duty  of  the  referee  is  to  act 
upon  the  questions  submitted  to  him,  and 
to  make  such  report  as  is  required  of  him 
by  the  order  under  which  he  acts.  Hihn 
V.  Peck,  30  Cal.  280. 

Power  of  referee.  The  referee  exercises 
all  the  |>o\vcis  of  a  ju<lge,  an<i.  upon  the 
abanilonment  of  the  cause  by  the  plaintiff 
before  its  submission,  or  upon  motion  of 
the  defendant  when  the  plaintiff  fails  to 
prove  a  sufficient  i-ause,  he  may  grant  a 
nonsuit  and  report  his  ju.igment  to  that 
effect.  Plant  v.  Fleming,  2U  f'al.  92.  An 
order  of  the  court  appointing  a  person,  des- 
ignated a  "court  commissioner,"  as  a 
referee,  is,  in  effect,  a  reference  to  the 
person  named,  under  this  section,  and  his 
authority  is  derived  from  the  or.lcr  a\>- 
pointing  him,  and  not  from  the  statute 
defining  the  duties  and  powers  of  court 
commissioner,  ami  the  power  of  this  ref- 
eree to  report  is  unaffected  by  his  prior 
resignation  from  the  office  of  court  com- 
missioner. .Jackson  v.  Puget  Sound  Lumber 
Co.,  123  Cal.  97;  55  Pac.  788. 

Notice  of  reference.  It  is  not  error  for 
the  court  to  adoj)!  the  report  of  a  referee 
appointed  to  take  an  accounting  of  a  part- 
nership business  and  assets,  where  the 
parties  had  actual  knowledge  of  the  ap- 
jioiutment,  and  might,  by  the  exercise  of  a 
little  diligence,  have  ascertained  the  time 
and  place  at  which  testimony  was  to  be 
taken  by  the  referee,  even  if  actual  notice 
were  not  given.  Doudell  v.  Shoo,  20  Cal. 
App.  424;  129  Pac.  478. 

Distinguished  from  arbitration.  The  ref- 
erence is  not  a  discontinuance  of  the  suit, 
as  is  the  submission  of  a  case  in  arbi- 
tration. Gunter  v.  Sanchez,  1  Cal.  45; 
Draghicevich  v.  Vulicevich,  76  Cal.  378; 
18  Pac.  406. 

CODE  COMMISSIONERS'  NOTE.  1.  Generally. 
The  statute  concerning  referees  is  in  aid  of  tlie 
common-law  remedy  bji'  arbitration,  and  does  not 
alter  its  principles.  'I'yson  v.  Wells,  2  Cal.  l'-2. 
A  court  may,  without  consent  of  parties,  order  a 
reference  in  equity  cases.  Smith  v.  Rowe,  4  Cal. 
7.  See  Still  v.  Saunders,  8  Cal.  286,  and  Ben- 
ham  V.  Rowe,  2  Cal.  261.  The  provisions  of  the 
Practice  Act  relating  to  the  partition  of  real 
property  contain  no  special  provision  for  the  ap- 
pointment of  a  referee  to  try  the  issues  and  find 
the  title  of  the  respective  parties.  The  appoint- 
ment of  a  referee  in  an  action  for  partition  is 
therefore  regulated  by  the  general  provisions  of 
the  Practice  Act.  Hastings  v.  Cunningham,  35 
Cal.  551. 

2.  Consent.  The  consent  to  an  order  of  refer- 
ence must  be  in  writing,  or  must  be  entered  on 
the  minutes.  Smith  v.  Pollock,  2  Cal.  02.  .\n 
order  of  reference,  except  as  provided  in  the  next 
section,  cannot  be  made  without  the  consent  of 
the  adverse  party.  Benham  v.  Rowe,  2  Cal.  261. 
AN'here  an  entry  on  tlie  minutes  recites  that  "the 
parties  came  by  their  attorneys,  and  defendant. 
1)y  his  attorney,  moved  the  court  that  the  cause 
be  referred"  ;  held,  that  such  reference  was  made 
in  one  of  the  modes  prescribed  l)y  law,  "by  oral 
consent,  in  open  court,  entered  on  the  minutes." 
Bates  V.  Visher,  2  Cal.  355.  The  whole  issue  in 
divorce  cases  cannot,  even  by  consent  of  parties. 
Vie  referred:  and  where  a  reference  is  had.  thp 
referee  cannot  pass  upon  the  testimony.  If  he 
make  anv  statement  or  finding  of  facts,  the  court 
is  obliged  to  disregard  it,  and  base  its  decree 
only   upon    the    legal    testimony    taken.     Baker    v. 


§639 


REFERENCES    AND    TRIALS    BY    REFEREES. 


694: 


Baker.  10  Cal.  527.  The  court  cannot,  without 
the  consent  of  the  parties,  order  a  reference  for 
the  trial  of  any  other  issue  of  fact  than  that  in- 
volved in  the  "examination  of  an  account  in  an 
equity  case.    Williams  v.  Benton,   24  Cal.  425. 

3.  Order.  An  order  of  court  is  necessary  to 
constitute  a  reference.  Heslep  v.  San  Francisco, 
4  Cal.  2.  The  order  cannot  go  beyond  the  plead- 
ings of  the  parties.    Branger  v.  Chevalier,   9   Cal. 


353.  A  reference  or  arbitration,  in  which  there 
is  no  order  of  court  or  agreement  filed  with  the 
clerk  or  entered  on  the  minutes,  operates  as  a. 
voluntary  withdrawal  of  the  case  from  the  juris- 
diction of  the  court,  by  which  it  loses  all  control 
over  the  case,  and  has  no  authority  to  enter  judg- 
ment upon  the  finding,  except  by  consent  of  par- 
ties. Heslep  V.  San  Francisco,  4  Cal.  2  ;  see  notes 
to  §§  639,  643,  post. 


§  639.  Reference  ordered  on  motion,  in  what  cases.  When  the  parties 
do  not  consent,  the  court  may,  upon  the  application  of  either,  or  of  its  own 
motion,  direct  a  reference  in  the  following  cases : 

1.  When  the  trial  of  an  issue  of  fact  requires  the  examination  of  a  long 
account  on  either  side;  in  which  case  the  referees  may  be  directed  to  hear 
and  decide  the  whole  issue,  or  report  upon  any  specific  question  of  fact 
involved  therein ; 

2.  When  the  taking  of  an  account  is  necessary  for  the  information  of  the 
court  before  judgment,  or  for  carrying  a  judgment  or  order  into  effect : 

3.  When  a  question  of  fact,  other  than  upon  the  pleadings,  arises  upon 
motion  or  otherwise,  in  any  stage  of  the  action; 

4.  When  it  is  necessary  for  the  information  of  the  court  in  a  special 
proceeding. 

and  against  the  objection  of  the  defend- 
ant, in  an  ordinary  suit  at  law  for  the 
recovery  of  a  debt,  is  cause  for  a  reversal 
of  judgment;  and  a  statute  authorizing  a. 
reference  in  such  case  vpould  be  uncon- 
stitutional. Grim  v.  Norris,  19  Cal.  140; 
79  Am.  Dec.  206;  Joshua  Hendy  Machine 
Works  v.  Pacific  Cable  Construction  Co., 
99  Cal.  421;  33  Pae.  1084.  An  order  of 
reference  in  a  divorce  action,  to  deter- 
mine the  division  of  the  community  prop- 
erty, is  not  a  ground  for  delaying  the 
motion  for  a  new  trial  upon  a  judgment 
previously  rendered:  such  reference  is  for 
the  purpose  of  securing  information  neces- 
sary for  the  carrying  into  effect  of  a  judg- 
ment already  ordered,  and  not  for  the 
taking  of  an  account,  or  for  reporting  upon 
any  subject  necessary  to  enable  the  court 
to  render  judgment  upon  the  issues  in  the 
cause.  Sharon  v.  Sharon,  79  Cal.  633;  22 
Pac.  26,  131.  A  reference  may  be  made 
in  any  suit  in  equity,  when  either  party 
alleges  facts  showing  the  examination  of 
a  long  account  to  be  necessary.  Jones  v.- 
Gardner,  57  Cal.  641.  The  court,  having 
power  to  take  and  state  an  account,  has 
also  the  power  to  refer  it  to  some  other 
person  to  state  it.  Trumpler  v.  Cotton,  109 
Cal.  250;  41  Pac.  1033.  A  reference  to 
state  an  account  between  the  parties  is  a 
reference  of  the  whole  case  for  trial,  and 
is  not  authorized,  except  upon  agreement 
of  the  parties.  Joshua  Hendy  Machine 
Works  V.  Pacific  Cable  Construction  Co.,. 
99  Cal.  421;  33  Pac.  1084. 

New  trial.  The  evidence  is  not  a  neces- 
sary part  of  the  report  of  a  referee,  under 
an  order  of  court  to  report  judgment; 
judgment  is  entered  on  the  report  as  a  mat- 
ter of  course,  and  the  only  mode  in  whict 
a   party   can    take   advantage   of   it   is   bjr 


Reference. 

1.  Proceedings   supplementary  to   execution. 
Post,  §  714. 

2.  Mandamus.     See  post,  §  1095. 
Legislation  §  639.      Enacted   March   11,    1S72: 

based  on  Practice  Act,  §  183,  which  had  the  word 
"or"  at  end  of  subd.  3. 

Eeference  for  examination  of  an  ac- 
count. The  compulsory  power  of  the  court 
over  the  question  of  reference  is  confined 
to  issues  involving  the  examination  of  a 
long  account:  this  section  does  not  include 
issues  of  that  character,  where  the  parties 
have  a  right  to  a  trial  by  jury.  Williams 
V.  Benton,  24  Cal.  424.  A  motion  for  the 
appointment  of  a  referee  is  properly  de- 
nied, where  there  is  no  issue  requiring  the 
examination  of  a  long  account,  and  where 
the  note  sued  on  implies  a  settlement  be- 
tween the  parties  up  to  that  time.  Clark- 
son  V.  Hoyt,  4  Cal.  Unrep.  547;  36  Pac.  382. 
The  court  is  not  authorized  to  refer  all 
the  issues  involved  in  an  action,  against 
the  consent  of  the  parties,  merely  because 
one  of  them  involves  the  examination  of 
a  long  account:  this  is  manifest  by  con- 
trasting the  terms  of  this  section  with 
those  of  the  preceding  section.  Williams 
V.  Benton,  24  Cal.  424.  A  reference  will 
not  be  made  of  an  issue  arising  upon  the 
yileadings.  except  where  the  trial  thereof 
requires  the  examination  of  a  long  account 
on  either  side.  Hastings  v.  Cunningham, 
35  Cal.  549.  The  court  has  no  authority 
to  direct  a  referee  to  report  a  judgment, 
where  either  of  the  parties  object;  the 
whole  case  may  be  sent  to  the  referee,  if 
there  is  but  one  issue,  and  that  issue  in- 
volves the  examination  of  a  long  account, 
but  not  where  there  are  other  issues,  not 
involving  such  an  examination  (Williams 
V.  Benton,  24  Cal.  424);  and  an  order 
of     reference,    made    without   the    consent 


695 


EMINENT   DOMAIN — TOWN,   CITY,   ETC. — OBJECTIONS.       §§640,041 


moving  to  set  it  aside,  as  on  motion  for 
a  new  trial.  Sloan  v.  Smith,  3  Cnl.  406. 
"Where  collateral  matters,  not  raised  by 
the  pleadinfjs,  are  sent  to  a  referee  for 
the  information  of  the  court,  a  motion  for 
a  new  trial  is  not  necessary  to  bring  the 
action  of  the  referee  before  the  court  for 
re\icw:  the  rejiort  of  a  referee  is  not 
binding  upon  the  court  until  adoi)ted  by 
it.  Harris  v.  San  ^'rancisco  Sugar  etc.  Co., 
41  Cal.  393. 

Power   of   court   to   refer    actions    to    referees. 

See  note  79   Am.  Occ.  'Jus. 

Right  to  order  compulsory  reference  in  equi- 
table action  independently  of  statute.  See  note 
Ann.  ('as.  1<.»!'J1),  1  i:!(i. 

Compulsory  reference  as  denial  of  constitu- 
tional right  to  Jury  trial.  See  notes  25  L.  K.  A. 
08;  13  L.  K.  A.  (N.  S.)  146;  39  L.  R.  A.  (N.  S.) 
46. 

CODE  COMMISSIONERS'  NOTE.  A  court 
cannot  refer  an  ordinary  suit  at  law  to  a  referee 
for  trial  ngninst  the  oi)j('clion  of  either  party; 
and  this,  whether  the  suit  requires  the  examina- 
tion of   a   long   account  or  not.      The  statute,   as 


to  referring  cases,  applies  nolely  to  equity  caufies. 
The  right  of  trial  by  jury  in  all  common-law  ac- 
tions is  tie<-ured  Ijy  the  ciinKlitution  of  this  state 
Grim  v.  Norris.  19  Cal.  140;  79  Am.  Dec.  206. 
In  an  action  to  dissolve  a  partnership  and  ob- 
tain a  sottlrnient  of  the  partnership  accounts, 
the  court  may  order  a  reference  for  the  trial  of 
all  the  issues  of  fact  relaling  to  the  condition  of 
the  partnership  accounts;  but  it  has  no  power,  if 
objeclion  is  made,  to  order  a  referetice  of  the 
trial  of  any  other  issue  or  issues  in  the  case,  nor 
to  diriTt  the  referee  to  report  a  judirment.  Where 
the  trial  of  an  issue  of  fact  is  involved,  requiring 
the  examination  of  a  long  account  on  either  side, 
the  court  may  order  a  reference,  with  directions 
to  the  referee  to  report  upon  the  account,  or  any 
issue  of  fact  involved  in  ine  account.  Williams  v. 
Benton.  24  Cal.  42.5;  Hidden  v.  .Jordan,  28  Cal. 
.301.  The  court  may  refer  for  trial  the  question 
of  damages  sustained  by  reason  of  an  injunction 
issued  without  a  cause."  Russell  v.  ?^,lliott.  2  Cal. 
245.  In  an  action  for  balance  of  an  account, 
the  defense  was  payment  bv  a  promissorv  note. 
Replication,  that  the  plaintiff  was  induced  to  re- 
ceive the  note  by  means  of  fraudulent  represen- 
tations. It  was  held,  that  the  case  could  not  l>e 
referred  without  the  written  consent  of  both  par- 
ties. Seamen  v.  Mariani,  1  Cal.  336.  See  notes 
to  §§  639,  643,  of  this  code. 


§  640.  Referees  in  eminent-domain  proceedings  involving  city,  etc.  A 
reference  may  be  ordered  to  the  person  or  persons,  not  exceeding  three, 
agreed  upon  by  the  parties.  If  the  parties  do  not  agree,  the  court  or  judcre 
must  appoint  one  or  more  referees,  not  exceeding  three,  who  reside  in  the 
county  in  which  the  action  or  proceeding  is  triable,  and  against  whom 
there  is  no  legal  objection,  or  the  reference  may  be  made  to  a  court  com- 
missioner of  the  county  where  the  cause  is  pending;  provided,  that  in  any 
action  brought  under  Title  VII  of  Part  III  of  this  code,  if  the  plaintiff  is 
the  state,  a  county,  city  and  county,  or  any  incorporated  city  or  town,  or 
a  municipal  water  district,  the  referees  are  not  required  to  be  residents 
of  the  county  in  which  the  action  or  proceeding  is  triable.  Nothing  herein 
contained  shall  be  construed  as  repealing  any  law  of  this  state  giving  juris- 
diction to  the  state  railroad  commission  to  ascertain  the  just  compensa- 
tion which  must  be  paid  in  eminent-domain  proceedings. 

of  the  court.  Adams  v.  Hackett,  7  Cal.  1S7. 
The  court  may  appoint  a  new  referee,  even 
where  he  has  reported  and  acted,  if  his 
report  is  not  approved;  but  a  party  can- 
not, every  time  the  court  finds  it  neces- 
sary to  appoint  a  new  referee,  stay  all 
proceedings  hv  ajipeal  from  such  order. 
Fallon  v.  Brittan,  84  Cal.  'Al;  24  Pac.  381. 
This  section  does  not  require  that  the  ref- 
eree shall  be  sworn:  the  imposition  of  an 
oath  by  the  court  would  be  of  no  effect, 
other  than  to  put  it  in  the  power  of  the 
referee  to  commit  moral  perjury,  without 
being  amenable  to  the  law.  Sloan  v.  Smith, 
3  Cal.  406. 


Reference  ordered.    Ante,  §§  638,  639. 

Three  referees,  two  may  act.    Post,  §  1053. 

Court   commissioner.    Ante,  §  259,  subd.  2. 

Legislation  §  640.  1.  Enacted  March  11,  1873; 
Eubstantiallv  a  re-enactment  of  Practice  Act, 
i   184,   as  amended  bv   Stats.   1865-66,  p.   845. 

2.  Amended  by  Stats.  1913,  p.  246,  (1)  in 
first  sentence,  substituting  "the  7)erson"  for  "any 
person";  (2)  at  end  of  section,  adding  the  proviso 
and   the   final   sentence. 

Appointment  and  qualification  of  ref- 
erees. The  fact  that  a  clerk  of  the  de- 
fendant was  appointed  a  referee  is  not 
any  considerable  evidence  of  fraud,  in 
view  of  the  nature  of  the  duties  of  the 
referee,  which  are  very  limited  and  plain, 
while  his  acts  are  subject  to  the  revision 


§  641.  A  party  may  object.  Grounds  of  objection.  A  party  may  object 
to  the  appointment  of  any  person  as  referee,  on  one  or  more  of  the  follow- 
ing grounds : 

1,  A  want  of  any  of  the  qualifications  prescribed  b}'  statute  to  render  a 
person  competent  as  a  juror; 


§§  642,  643 


REFERENCES    AND    TRIALS    BY    REFEREES. 


696 


2.  Consanguiuity  or  affinity,  within  the  third  degree,  to  either  party,  or 
to  an  officer  of  a  corporation  which  is  a  party,  or  to  any  judge  of  the  court 
in  which  the  appointment  shall  be  made ; 

3.  Standing  in  the  relation  of  guardian  and  ward,  master  and  servant, 
employer  and  clerk,  or  principal  and  agent,  to  either  party;  or  being  a 
member  of  the  family  of  either  party ;  or  a  partner  in  business  with  either 
party;  or  security  on  any  bond  or  obligation  for  either  party; 

4.  Having  served  as  a  juror  or  been  a  witness  on  any  trial  between  the 
same  parties  for  the  same  cause  of  action; 

5.  Interest  on  the  part  of  such  person  in  the  event  of  the  action,  or  in 
the  main  question  involved  in  the  action ; 

6.  Having  formed  or  expressed  an  unqualified  opinion  or  belief  as  to 
the  merits  of  the  action ; 

7.  The  existence  of  a  state  of  mind  in  such  person  evincing  enmity 
against  or  bias  to  either  party. 


Legislation  §  641.  1.  Enacted  March  11,  1873; 
re-enactment  o{  Practice  Act,  §  185. 

2.  Amended  by  Stats.  1897,  p.  60,  adding 
at  end  of  subd.  2,  "or  to  any  judge  of  the  court 
in  which  the  appointment  shall  be  made." 

3.  Amendment  by  Stats.  1901,  p.  146;  un- 
constitutional.   See  note  ante,  §  5. 


4.   Amended   by    Stats.    1907,    p.    714,    (1)    in 

first  paragraph,  changing  "A"  from  "Either"; 
(2)  in  subd.  2,  adding  "or  to  an  officer  of  a  cor- 
poration which  is  a  party";  and  (3)  in  subd.  S, 
striking  out  the  word  "being"  before  "security." 
CODE  COMMISSIONERS'  NOTE.  Adams  v. 
Hackett,  7  Cal.  187;   see  note  to  §  602  of  this  code. 


Ante,    §    259, 


§  642.  Objections,  how  disposed  of.  The  objections  taken  to  the  ap- 
pointment of  any  person  as  referee  must  be  heard  and  disposed  of  by  the 
court.  Affidavits  may  be  read  and  witnesses  examined  as  to  such  objec- 
tions. 

Objections.     See  ante,  §  641.  word  "shall"   instead  of  "must,"   and    (2)    instead 

T      ■  1  ^-       0  040       T^        »   J    AT     „i,    1 1      ^Q'r'>.  of   "witnesses   examined,"   the   words   "any  person 

Legislation  §642       Enacte^d    March    11,    1872;  examined  as  a  witness." 
based  on  Practice  Act,    §   186,  which  had   (1)    the 

§  643.  Referees  to  report  within  twenty  days.  The  referees  or  commis- 
sioner must  report  their  findings  in  writing  to  the  court  within  twenty  days 
after  the  testimony  is  closed,  and  the  facts  found  and  conclusions  of  law 
must  be  separately  stated  therein. 

report  (Headley  v.  Eeed,  2  Cal.  322);  nor 
has  he  power  to  allow  the  parties  to 
amend  the  pleadings;  and  the  issue  being 
made  up  and  submitted,  he  must  pass  upon 
that  issue,  and  he  cannot  change  it.  De 
la  Eiva  v.  Berreyesa,  2  Cal.  195.  While 
it  is  the  duty  of  the  court  or  referee  to 
find  the  specific  facts  in  issue,  yet  it  is 
only  necessary  to  find  the  balance  of  an 
account.    Pratalongo  v.  Larco,  47  Cal.  378. 

Discretion  of  referee.  The  exercise  of 
the  discretion  of  the  referee  in  opening  the 
case,  after  it  has  been  closed,  for  the 
purpose  of  receiving  additional  testimony, 
will  not  be  reviewed  on  appeal,  except  in 
case  of  gross  abuse.  Marziou  v.  Pioche,  10 
Cal.  545. 

Report  of  referee.  The  referee  should 
not  only  report  in  writing,  but  should 
also  find  the  facts  upon  which  the  judg- 
ment is  thereafter  to  be  pronounced;  by 
no  other  means  can  the  court  be  informed 
so  as  to  act  intelligently  in  the  premises. 
Lee  Sack  Sam  v.  Gray,  104  Cal.  243;  38 
Pac.  85.  Where  the  specific  facts  are  put 
in   issue   by   the  pleadings,  it  is   the   duty 


Referees. 

1.  Court    commissioners 
subd.  2. 

2.  Where  three,  all  must  meet,  but  two  can 
act.    Post,  §  1053.  ^   ^ 

3.  Enforcing  orders  of.    Ante,  §  128,  subd.  2. 

4.  Pindiugs  of,  effect  of.    Post,  §  645. 

Legislation  §  643.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  187,  as  amended  by 
Stats.  1865-66,  p.  845.  which  read:  "The  referees 
or  commissioner  shall  report  their  findings  in 
writing  to  the  court  within  ten  days  (or  within 
such  further  time  as  may  be  allowed  by  the 
court)  after  the  testimony  shall  have  been  closed, 
and  the  facts  found  and  conclusions  of  law  shall 
be  separately  stated  therein.  The  finding  of  the 
referee  or  commissioner  upon  the  whole  issue 
shall  stand  as  the  finding  of  the  court,  and  upon 
filing  of  the  finding  with  the  clerk  of  the  court 
judgment  may  be  entered  thereon  in  the  same 
manner  as  if  the  action  had  been  tried  by  the 
court.  The  finding  of  the  referees  or  commis- 
sioner may  be  excepted  to  and  reviewed  in  like 
manner  as  if  made  by  the  court.  When  the  ref- 
erence is  to  report  the  facts  the  finding  reported 
shall  have  the  effect  of  a  special  verdict." 

Construction  of  section.  The  word  "re- 
port," in  this  section,  is  evidently  used  for 
fimling  or  decision.  Faulkner  v.  Hendy, 
103  Cal.  15;  36  Pac.  1021. 

Powers  of  referee.  The  referee  cannot 
bring  in  and  file  an  additional  or  amended 


697 


JUDGE  AS  REFKREE — EFEECT  OK  FINDING  01"  KEl'EREE. 


§64i 


of  the  court  or  referee  to  find  distinctly 
as  to  these  facts;  the  striking  out  of  a 
finding  of  fact  by  the  referee,  and  sub- 
stituting therefor  a  finding  by  the  court, 
is  a  practice  not  to  be  conuneiided.  I'ra- 
talongo  V.  Larco,  47  Cal.  378.  The  report 
of  a  referee,  like  the  finding  of  a  court, 
should  state  the  facts  found  and  the  con- 
clusions of  law  thereujion;  otherwise  the 
parties  would,  in  many  cases,  be  remedi- 
less and  their  rights  couclude<.l  by  the  ar- 
bitrary decisions  of  the  referee.  Lambert 
V.  iSmith,  3  Cal.  -108.  A  court  or  judge, 
sitting  as  a  referee,  is  governed  by  the 
same  rules  as  other  referees,  and  must 
make  findings.  Lee  Sack  Sam  v.  Gray, 
104  Cal.  24:5;'3SPac.  85. 

Waiver  of  findings.  There  is  no  pre- 
sumption that  fint^lings  are  waived  in  cases 
tried  by  a  referee:  there  is  no  provision 
for  a  waiver  in  such  cases.  Lee  Sack  Sam 
V.  Gray.  104  Cal.  243;  38  Pac.  85. 

Judge  as  referee.  Where  the  court  or 
judge  sits  as  a  referee,  his  position  is  as 
distinct  in  law  from  the  court  acting  as 
such  within  its  own  proper  sphere  as  if  a 
different  referee  had  been  selected;  the 
code  fixes  but  one  rule  for  the  guidance 
of  all  referees,  and  they  are  alike  and 
without  exception  subject  to  its  provis- 
ions. Lee  Sack  Sam  v.  Gray,  104  Cal.  243; 
38  Pac.  85. 

Effect  of  failure  of  referee  to  file  report  within 
time  fixed  by  statute  or  order  of  reference.  See 
nolo  Ann.  Cas.  lOllil),  61)3. 

CODE  COMMISSIONERS'  NOTE.  1.  Time. 
Time  is  directory.    Keller  v.  Sutrick,  22  Cal.  471. 

2.  Findings.  See  notes  to  §§  033,  635,  and  644 
of  ihis  code.  The  report  of  a  referee,  like  the 
finding  of  a  .iiulge,  should  state  the  facts  found 
and  the  conclusions  of  law.  Lambert  v.  Smith.  3 
Cal.    409.      If    the    order    of    a    reference    requires 

§  644.     Effect  of  referee's  finding. 

missioner  upon  the  whole  issue  must 
upon  filing  of  the  finding  with  the 
entered  thereon  in  the  same  manner 
court. 

Legislation  8  644.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  187,  q.v.  ante.  Legisla- 
tion §  643. 

Provisions  directory.  The  provisions  of 
this  section  are  directory  merely,  and  a 
failure  to  file  within  the  time  prescribed 
does  not  invalidate  the  report,  or  the 
judgment  rendered  thereon.  Keller  v.  Sut- 
rick, 22  Cal.  471. 

Nature  and  effect  of  report  of  referee. 
The  findings  and  decision  of  the  referee 
take  the  place  of  the  findings  and  decision 
of  the  court;  and  such  i)apers,  and  no 
others,  constitute  the  judgment  roll,  just 
as  they  would  if  the  case  had  been  tried 
by  the  court  (Faulkner  v.  Hendy,  103  Cal. 
15;  36  Pac.  1021);  and,  on  appeal,  the  de- 
cision of  the  referee  is  regarded  as  con- 
elusive  as  the  verdict  of  a  jury  (Gunter 
V.  Sanchez,  1  Cal.  45);  and  the  report  of 
the  referee  has  the  same  legal  effect  as  the 


the  referee  to  fry  tlic  issues,  and  report  his  find- 
ing thereon,  the  referee  niiiy  make  n  geiier.il  find- 
ing upon  the  fnclK  put  in  isRue.  stating  the  farts 
according  to  their  legal  effect,  llihn  v.  Peck,  30 
Cal.    28(1. 

3.  Duties  of  referee.  Under  a  reference  to 
try  the  issues  and  report  a  judgment,  the  referee 
may  exercise  nil  the  powers  of  a  judge  in  rela- 
tion to  the  trial  of  the  cause  referred  In  him. 
Plant  V.  Fleming,  20  Cal.  92.  But  the  referi  es 
have  no  power  to  allow  the  parties  to  alter  the 
pleadings  after  a  case  has  been  submitted  to 
them.  De  la  Riva  v.  Berreyesa,  2  Cal.  l'J!'>.  It 
is  within  the  discretion  of  the  referees  to  open 
the  case,  after  it  has  bee-i  once  closed,  for  the 
purpose  of  receiving  additional  testimony.  Mar- 
ziou  V.  Pioche,  10  Cal.  54.").  Tlie  trial  before  a 
referee  should  be  conducted  in  tlie  same  maiimr 
as  before  a  court,  and  the  evidence  should  be 
embodied  in  a  bill  of  exceptions,  and  cenilied  by 
the  referee.  Goodrich  v.  Mayor  and  Common 
Council,  .5  Cal.  430.  IrrelevRiit  testimony  should 
be  excluded  by  the  referee.  IJe  la  Riva  v.  Berre- 
yesa, 2  Cal.  19.5.  Where  the  referee  admits  the 
testimony  against  the  objection  of  the  defendant, 
such  testimony  cannot,  after  the  case  lins  been 
submitted,  be  disregarded  witliuut  first  giviiie  to 
the  adverse  party  the  opportunity  of  otherwise 
supplying  the  excluded  testimony,  ilonson  v. 
Cooke,  5  Cal.  436.  A  reference  with  directions 
to  take  proofs  concerning  the  confession  of  a 
judgment  by  the  defe;ulant,  and  the  judgment 
roll  in  the  case,  and  whether  the  same  was  filed 
in  the  clerk's  office,  and  to  report  the  testimony, 
with  a  finding  of  facts,  and  a  judgment,  does  not 
submit  to  the  referee  the  question  as  to  what 
amount,  if  any,  is  still  unpaid  in  the  judgment. 
Solomon  V.  Maguire.  29  Cal.  227.  The  referee 
is  to  act  upon  the  questions  committed  to  liira. 
and  to  report  whatever  he  is  required  to  report 
by  the  order  under  which  he  acts.  Hihn  v.  Peck, 
30  Cal.  2S0.  The  referee  need  not  be  sworn. 
Sloan  V.  Smith,  3  Cal.  407.  He  cannot  file  an 
amended  report.    Headley  v.  Reed.  2  Cal.  324. 

4.  Effect  of  report.  The  facts  found  are  con- 
clusive, in  the  absence  of  the  testimony  brought 
before  the  court.  Goodrich  v.  Mayor  and  Com- 
mon Council,  .5  Cal.  430;  Knowlcs  v.  Joost,  13 
Cal.  620;  Muller  v.  Boggs,  2.5  Cal.  179;  Peck  v. 
Vandenberg,  30  Cal.  11.  'Hie  report  has  the 
same  legal  effect  as  the  award  of  an  arbitrator. 
Headlev  v.  Reed,  2  Cal.  32':;  Gravson  v.  Guild, 
4  Cal.  125:  Gunter  v.  Sanchez,  1  Cal.  45;  Wal- 
ton V.  Minturn,  1  Cal.  362. 


The  finding  of  the  referee  or  eom- 
stand  as  the  finding  of  the  court,  and 
clerk  of  the  court,  judgment  may  be 
as  if  the  action  had  been  tried  by  the 

aw.ard  of  an  arbitrator.  Hadley  v.  Reed, 
2  Cal.  322;  Tyson  v.  Wells,  2  Cal.  122. 
The  finding  of  a  referee  upon  a  collateral 
matter  does  not  take  the  place  of  a  special 
verdict:  when  he  rei)orts  on  the  whole 
case,  the  report  stands  as  the  decision  of 
the  court;  when  he  rejtorts  only  the  facts, 
the  report  is  a  special  verdict;  in  other 
cases  not  mentioned,  the  report  has  neither 
the  effect  of  a  decision  of  the  court  nor 
of  a  special  verdict.  Harris  v.  San  Fran- 
cisco Sugar  Kefiuing  Co.,  41  Cal.  303. 
Where  the  whole  issue  is  tried  by  a  ref- 
eree, judgment  follows  immediately  as  the 
conclusion  of  law  upon  the  facts  found, 
and  the  decision  stands  as  the  decision 
of  the  court,  and  may  be  excepted  to  and 
reviewed  as  if  the  action  had  been  tried 
bv  the  court.  Peabody  v.  Phelps,  9  Cal. 
213. 


645 


REFERENCES   AND    TRIALS   BY   REFEREES. 


698 


2  Cal.  322.  Damages  upon  the  dissolution 
of  an  injunction  being  properly  ascer- 
tained by  reference,  mandamus  lies  to  com- 
pel the  judge  to  enter  judgment  upon  the 
report  of  the  referee.  Russell  v.  Elliott, 
2  Cal.  24.5. 

New  trial.  The  right  to  move  for  a 
new  trial,  where  a  reference  has  been  had 
of  the  cause,  has  no  basis  until  the  de- 
cision and  judgment  have  been  rendered, 
which  is  the  date  of  their  filing.  Harris 
V.  Careaga,  2  Cal.  Unrep.  242;  2  Pac.  41. 
After  rendition  of  judgment,  the  court 
may  grant  a  new  trial,  and  set  aside  the 
report,  on  any  ground  justifying  the  set- 
ting aside  of  the  award  of  an  arbitrator, 
and  on  no  other.  Headley  v.  Reed,  2  Cal. 
322. 

Necessity  that  all  referees  Join  in  award.  See 
note  15  Ann.  Cas.  507. 

Power  of  referee  to  overrule  previous  order  or 
ruling  of  judge.    See  note  Ann.  Cas.  1913C,  1250. 

CODE  COMMISSIONERS'  NOTE.  Mandamus 
lies  to  compel  the  court  to  enter  judgment  on  the 
report  of  a  referee.  Russell  v.  Elliott,  2  Cal.  246. 
If  a  report  of  a  referee  contain  sufficient  on  which 
to  base  a  judgment,  it  is  the  duty  of  the  court 
below  to  enter  judgment  in  accordance  with  the 
report,  so  far  as  it  concerns  the  matter  referred, 
and  it  has  no  right  to  entertain  any  objection 
whatever.    Headley  v.  Reed,   2  Cal.  322. 


Findings  by  referee  unnecessary  when. 

It  is  not  the  duty  of  a  referee,  ordered  to 
try  all  the  issues,  both  of  law  and  fact, 
and  report  a  judgment  thereon,  to  report 
findings.    Connor  v.  Morris,  23  Cal.  447. 

General  verdict  by  referee.  A  referee, 
ordered  to  try  the  issues,  may  return  a 
general  verdict  in  the  same  manner  as  a 
jury.    Hihn  v.  Peck,  30  Cal.  280. 

Entry  of  judgment.  Where  the  parties 
to  an  action  stipulate  for  a  reference 
authorizing  the  referee  to  determine  all 
the  issues  of  law  and  fact,  and  that,  upon 
the  filing  of  the  report,  judgment  shall  be 
entered  by  the  court  in  accordance  there- 
with, and  the  court  thereupon  orders  the 
reference,  the  clerk  is  authorized  to  enter 
judgment,  without  further  order  of  the 
court.  Bowie  v.  Borland,  68  Cal.  233;  9 
Pac.  79.  The  entry,  by  the  clerk,  of  judg- 
ment on  finding  of  a  referee  is  a  matter 
of  course,  and  the  parties  can  have  no 
knowledge  of  the  decision  until  it  is  an- 
nounced in  the  form  of  a  judgment  or  a 
direction  for  its  entry.  Peabody  v.  Phelps, 
9  Cal.  213.  The  court  cannot  entertain 
any  objection  to  the  report  of  a  referee: 
it  must  enter  judgment  in  accordance 
therewith,  if  suflScient.    Headley  v.   Reed, 

§  645.  How  excepted  to,  etc.  The  findings  of  the  referee  or  commis- 
sioner may  be  excepted  to  and  reviewed  in  like  manner  as  if  made  by  the 
court.  When  the  reference  is  to  report  the  facts,  the  finding  reported  has 
the  effect  of  a  special  verdict. 

Exceptions,   generally.     Post,  §§  646  et  seq. 

New  trials.     Post,  §§  656  et  seq. 

Court  commissioner's  report,  time  and  mode 
of   excepting  to.     Ante,  §  259,  subd.  2. 

Legislation  §  645.  Enacted  March  11,  1872: 
based  on  Practice  Act,  §  187,  q.v.  ante,  Legisla- 
tion §  643. 

Objection  to  report,  where  filed.  Objec- 
tion to  the  report  of  a  referee  should  be 
filed  before  the  trial  court,  so  as  to  enable 
it  to  correct  the  error,  if  any  exist.  Porter 
v.  Earling,  2  Cal.  72.  Upon  facts  found, 
whether  by  a  referee  or  by  the  special 
verdict  of  a  jury,  the  direct  action  of 
the  court  must  be  invoked  before  judg- 
ment can  be  entered;  though  the  trial  has 
ended,  judgment  does  not  follow  imme- 
diately as  a  matter  of  course;  and  the 
time  within  which  the  notice  of  motion 
to  set  aside  the  report  or  the  verdict  must 
be  given  should  be  the  same  in  both 
cases,  and  date  from  the  filing  of  the  re- 
port or  the  rendition  of  the  verdict.  Pea- 
body  V.  Phelps,  9  Cal.  213. 

Exceptions  and  objections  to  findings  of 
referee.  K.xceptions  must  be  taken  to  the 
rulings  of  the  referee  during  the  trial,  and 
certified  by  him;  and  where  there  are  no 
exce{)tions  embodied  in  the  report,  show- 
ing that  the  referee  erred  in  fact,  and  no 
rule  of  law  pointed  out  by  which  he  ar- 
rived at  his  conclusion,  the  court  has  no 
right  to  disturb  it,  and  must  hold  it  final 
and  conclusive  between  the  parties.   Tyson 


V.  Wells,  2  Cal.  122.  Written  objections  to 
the  report  of  a  referee  should  be  filed 
on  the  entry  of  judgment  thereon,  or  by 
a  motion  for  a  new  trial,  setting  forth 
the  grounds  of  alleged  errors.  Porter  v. 
Barling,  2  Cal.  72. 

Effect  of  referee's  report.  Where  the 
reference  is  special,  to  report  facts,  the 
report  has  the  effect  of  a  special  verdict, 
and  the  direct  action  of  the  court  must 
be  invoked  before  the  judgment  can  be 
entered,  and  the  time  within  which  the 
notice  of  motion  must  be  made  to  set  aside 
the  report  acts  from  the  filing  of  the  re- 
port; where  the  reference  is  general,  the 
report  stands  as  the  deci'sion  of  the  court, 
and  judgment  may  be  entered  thereon,  and 
exception  taken  and  reviewed,  as  if  the 
action  had  beeu  tried  by  the  court,  and 
judgment  follows  immediately  as  a  conclu- 
sion of  law  upon  the  facts  found,  and  the 
time  of  notice  of  motion  dates  from  the 
entry  of  the  judgment.  Peabody  v.  Phelps, 
9  Cal.  213.  The  findings  of  facts  by  a 
referee,  and  the  report  thereof  to  the 
court,  are  equivalent  to  a  special  verdict, 
or  to  the  findings  of  fact  made  by  the 
court  upon  the  trial  of  a  cause  without 
the  intervention  of  a  jury.  Bernard  v. 
Sloan,  2  Cal.  App.  737;  84  Pac.  232. 

Setting  aside  report  of  referee.  The 
court,  before  entry  of  juilgment,  may  set 


699 


SETTING    ASIDE   REPORT — NEW    TRIAL APPEAI/. 


§645 


aside  conclusions  of  law  anci  direct  a 
proper  ju(lf,Miu;iit,  where  the  referee  reports 
the  facts  on  all  the  issues,  but  draws  an 
erroneous  conclusion  of  law,  and  re|)orts 
a  judgment  in  accordance  therewith.  (Jal- 
derwood  v.  Pjser,  31  L'al.  333.  The  court 
can  interfere  and  set  aside  the  report  of 
a  referee  on  grounds  suflicient  to  set  aside 
the  verdict  of  a  jury;  and,  in  a  suit  in 
chancery,  the  court  may,  where  excep- 
tions are  filed,  set  aside  the  report  of  a 
referee,  and  take  up  the  testimony  re- 
ported by  him,  find  the  facts,  and  render 
a  decree  in  the  cause;  and,  on  appeal, 
where  there  is  a  mass  of  contradictory  evi- 
dence reported,  it  will  be  presumed  that 
the  court  weighed  the  evidence  properly 
in  setting  aside  the  findings  of  the  ref- 
eree. McHenry  v.  Moore,  5  Cal.  90.  Where 
there  is  no  showing  of  error  of  law  or  of 
fact  upon  the  face  of  the  report  of  a  ref- 
eree in  a  suit  in  equity,  or  of  any  excep- 
tions taken  before  the  referee  to  point 
out  any  errors,  or  of  any  objection  to  his 
decision,  the  court  cannot  set  aside  the 
report  or  grant  a  new  trial.  Grayson  v. 
Guild,  4  Cal.  122;  Tyson  v.  Wells,  2  Cal. 
122. 

Evidence.  The  trial  before  a  referee 
should  be  conducted  as  though  it  were  be- 
fore the  court,  and  the  evidence  must  be 
■embodied  in  a  bill  of  exceptions  and  cer- 
tified by  the  referee;  and  where  the  order 
of  reference  fails  to  direct  a  return  of  the 
■evidence  to  the  court,  the  party  objecting 
to  the  report  must  see  to  it  that  such 
testimony  as  he  relies  on  is  properly  cer- 
tified. Goodrich  v.  Mayor  etc.  of  Marys- 
ville,  5  Cal.  430;  Phelps  v.  Peabody,  7 
<!al.  50.  The  review  of  the  decision  of  a 
referee  upon  a  question  of  fact  is  subject 
to  the  same  rules  as  is  the  action  of  a  jury 
in  a  special  verdict,  or  of  a  court  upon  its 
finding  of  facts;  the  weight  of  evidence 
and  the  resolution  of  any  conflict  therein, 
the  credibility  of  the  witnesses  and  the 
character  of  their  testimony,  are  matters 
in  which  he  is  required  to  exercise  his 
judgment,  and  wherein  his  judgment  will 
be  accepted  by  the  court  as  correct,  unless 
clearlv  shown  to  be  erroneous.  Bernard  v. 
-Sloan^  2  Cal.  App.  737;  84  Pac.  232. 

New  trial.  The  court  has  the  same 
power  in  cases  tried  by  referees  as  in  those 
tried  by  itself  or  by  a  jury:  each  case  is 
upon  the  same  footing,  and  the  grounds 
upon  which  a  new  trial  may  be  granted 
are  the  same  in  all  cases,  irrespective  of 
the  manner  in  which  the  case  was  origi- 
nally  tried.    Cappe   v.   Brizzolara,   19   Cal. 

eo7. 

Review  on  appeal.  The  report  of  a  ref- 
eree, which  failed  to  find  on  a  material 
issue,  is  a  decision  against  law,  ami  may 
be  reviewed  on  appeal  from  an  order 
granting  or  refusing  a  new  trial.  Clark  v. 
ilewitt,  136  Cal.  77;  68  Pac.  303. 


NocosBlty  for  taking  objection  or  exception  to 
error  on  hearing  beforo  referee.  See  note  2U 
.\iin.  Cas.  I'J'.i. 

CODE  COMMISSIONERS'  NOTE.  1.  Excep- 
tions. If  the  r.pori  ul  a  rcfi-iOH  is  not  muJe  ul 
om-i-,  upon  llir-  clo.m-  of  the  ti-.stimony,  it  jg  di-cnifd 
uxiupted  to.  iieaUley  t.  lU.-U,  2  Cal.  .i2i.  In 
an  equity  case,  il  is  competent  for  the  juUcu  who 
tried  the  cause,  altrr  exccptionH  have  been  Hied 
to  the  roporl  of  a  referee  upon  the  farl.i.  and  the 
report  hel  asidi-  for  cause  hhown.  to  lake  up  th* 
testimony  reported  by  the  referee,  hml  the  facts, 
and  render  a  decree  in  the  cause.  McHenry  v. 
Moore,  5  Cal.  90.  Trials  before  a  referee  are 
conducted  in  the  same  manner  as  beforo  courts, 
and  excei)tions  niu-st  be  taken  to  the  rulings  01 
the  referee,  in  the  progress  of  the  trial,  lu  the 
.same  manner  as  they  must  be  taken  before  a 
court;  and  such  exceptions  must  be  embodied  in 
the  report  of  the  referee,  or  made  part  thereof  by 
his  proper  certifirate.  Phelps  v.  Peabody,  7  Cal. 
50;    BraiiKiT    v.    (  hevalier,    9    Cal.    353. 

2.  Setting  aside  report.  The  report  cannot  be 
attacked,  e.\cepl  for  error  or  mistakes  of  law, 
shown  on  it.s  face,  or  by  motion  for  a  new  trial. 
Goodrich  V.  Mayor  and  Common  Council,  5  Cal. 
430;  Porter  v.  Barling,  2  Cal.  72;  2  Cal.  112;  56 
Am.  Dec.  319;  Uruuger  v.  Chevalier,  9  Cal.  iJ62; 
Sloan  V.  Smith,  3  Cal.  407;  lieadley  v.  Keed,  2 
Cal.  322;  Cappe  v.  Brizzolaro,  19  Cal.  007;  Mc 
Henry  v.  Moore,  5  Cal.  92;  Tyson  v.  Wells,  2 
Cal.  122.  If  the  referee  to  take  an  account  com- 
mits an  error  at  the  outslart,  which  unsettles  the 
account,  the  court  is  not  bound  to  go  over  the 
account  and  correct  the  error,  but  may  set  aside 
the  report  and  again  refer  the  case.  Hidden  v. 
Jordan,  32  Cal.  397.  The  report  of  a  referee 
upon  conflicting  evidence  has  the  same  eflfect  as  a 
verdict  of  a  jury,  and  will  not  be  disturbed  in 
the  supreme  court,  upon  an  appeal  from  an  order 
refusing  to  grant  a  new  trial  in  the  court  below. 
Ritchie  v.  Bradshaw,  5  Cal.  229.  I'hough  a 
pleading  would  be  bad  upon  demurrer,  yet  if  no 
objection  be  taken  at  the  time,  and  the  case  is 
submitted  to  a  referee,  the  defect  of  the  plea 
is  not  suflHcient  reason  to  set  aside  the  report. 
Ritchie  v.  Davis,  5  Cal.  453.  If  there  is  no  ex- 
ception taken  to  the  ruling  of  a  referee,  and  the 
rule  of  law  by  which  he  arrived  at  his  conclu- 
sions be  not  disclosed,  the  court  cannot  disturb 
the  report.  Tyson  v.  Wells,  2  Cal.  130;  Cray 
son  V.  Guild,  4  Cal.  125;  but  see  Butte  Table 
Mountain  Co.  v.  Morgan,  19  Cal.  609.  When  a 
case  is  referred  to  a  referee  to  hear  and  deter- 
mine the  issues  of  fact  and  of  law,  and  report 
the  same  to  the  court,  and  he  makes  his  report, 
wherein  no  errors  of  law  or  fact  occur,  and  no 
exceptions  are  taken,  the  court  below  should  not 
set  aside  the  report  and  grant  a  new  trial.  Gray- 
son V.  Guild,  4  Cal.  125.  It  would  be  an  abuse 
of  discretion  for  a  court  to  set  aside  a  report  of 
a  referee,  correct  in  all  its  parts,  without  any 
other  apparent  reason  than  the  mere  volition  of 
the  judge.  Goodrich  v.  Mayor  and  Common  Coun^ 
cil,  5  Cal.  430.  After  judgment  upon  a  report  of 
referee,  the  court  may  set  aside  the  report  and 
grant  a  new  trial  for  any  reason  that  would  be 
sufTicient  to  set  aside  the  award  of  an  arbitrator, 
and  for  no  other.  Headley  v.  Reed.  2  Cal.  322. 
The  provisions  of  the  Practice  Act  relating  to 
new  trials  apply  to  cases  tried  by  a  referee,  as 
well  as  to  cases  tried  by  the  court  itself,  or  by 
a  jury.  Cappo  v.  Brizzolara.  19  Cal.  607.  If  the 
alleged  error  consists  in  the  final  conclusion  of 
law  or  fact  drawn  from  the  testimony,  and  the 
evidence  is  certified  to  th6  court  by  the  referee, 
the  proper  course  is  to  move  to  set  aside  the 
report  and  for  a  new  trial.  Branger  v.  Chevalier. 
9  Cal.  353.  See  note  to  §  645  of  this  code.  If 
a  referee  reports  the  facts  upon  all  the  issues, 
but  draws  an  erroneous  conclusion  of  law  from 
the  facts  found,  and  also  reports  a  judgment  in 
accordance  with  his  conclusions  of  law,  the  court 
may  set  aside  the  conclusions  of  law.  and  direct 
the"  proper  judgment  to  be  entered.  Calderwood 
V.    Pyser.    3  1    Cal.    333. 

3.  Motion  to  set  aside.  The  time  within  which 
a  notice  of  a  motion  must  be  filed  to  set  aside 
the  report  of  a  referee  is  the  same  in  which  a 
notice  of  motion  for  a  new  trisl  must  be  filed: 
and  a  failure  to  sppear  and  prosecute  a  motion  to 


§  646 


EXCEPTIONS. 


70O 


set  aside  the  report  is  an  abandonment  of  motion, 
and  the  order  made  denying  the  motion  for  such 
failure  to  appear,  is  not  the  subject  of  review  on 
appeal.  Mahoney  v.  Wilson,  15  Cal.  43 ;  Frank 
V.  Doane,  15  Cal,  303;  Green  v,  Doane,  15  Cal, 
304. 

4,  Appeal.  The  appellate  court  will  not  review 
a  judgment  entered  on  the  report  of  a  referee,' if 
no  objection  was  made  in  the  court  below  to  the 
report.  Porter  v.  Barling,  2  Cal.  72.  When  a 
report  of  a  referee  has  been  erroneously  set  aside 
and  a  new  trial  granted,  and  plaintiff  appeals,  the 
supreme  court  will  correct  both  errors  at  the 
same  time,  in  a  chancery  case.  Grayson  v.  Guild. 
4  Cal.  125.  An  order  setting  aside  a  report  of 
a  referee,  appointed  to  take  an  account,  is  not 
the  subject  of  appeal  before  judgment.    Johnston 


V.  Dopkins,  6  Cal.  83.  Whare  a  cause  is  tried, 
by  a  referee  and  the  testimony  is  conflicting,  the 
findings  will  not  be  disturbed.  MuUer  v.  Hoggs, 
25  Cal.  179.  The  appellate  court  will  not  review 
the  findings  of  a  referee  to  ascertain  whether 
they  are  contrary  to  the  evidence,  except  on  ap- 
peal from  an  order  denying  a  new  trial.  Peck  v. 
Vandenberg,  30  Cal.  11.  An  order  setting  aside 
the  finding  of  a  referee  in  a  divorce  case,  and 
sending  the  case  back  to  the  referee  for  further 
testimony,  is  not  the  subject  of  appeal  before- 
judgment.  Baker  v.  Baker,  10  Cal.  528.  Where 
the  record  on  appeal  does  aot  disclose  a  motion 
for  new  trial,  it  will  be  presumed  that  the  find- 
ings of  the  referee  were  based  upm  sufficient 
evidence.    Donahue  v.  Cromartie.   21   Cal.   80. 


CHAPTER  VII. 

PEOVISIONS  EELATING  TO  TRIALS  IN  GENERAL. 

Article  I.     Exceptions.     §§  646-653. 
II.     New  Trials.     §§  656-663a. 


ARTICLE  I. 

EXCEPTIONS. 


§  646.     "Exception"  defined.      When  taken. 

§  647.     Verdict    or    order    in     absence    of    party, 

deemed  excepted  to. 
§  648.     Exception,  form  of. 
§  649.     Bill  of  exceptions,   when  to  be  presented, 

etc. 
§  650.     Bill    of   exceptions.      Presentment    of   bill. 


Duty    of    judge    to    strike    out    useless; 

matter. 
§651.     Exceptions  after  judgment. 
§  652.     Proceedings   if  judge  refuse   to   allow  bill 

of   exceptions. 
§  653.     Settlement  of  bill  of  exceptions. 


§  646.  "Exception"  defined.  When  taken.  An  exception  is  an  objec- 
tion upon  a  matter  of  law  to  a  decision  made,  either  before  or  after  judg- 
ment, by  a  court,  tribunal,  judge,  or  other  judicial  officer,  in  an  action  or 
proceeding.  The  exception  must  be  taken  at  the  time  the  decision  is  made^ 
except  as  provided  in  section  six  hundred  and  forty-seven. 

of  evidence,  taken  subject  to  a  subsequent 
ruling  as  to  its  admissibility,  need  not  be- 
excepted  to,  where  no  decision  is  made. 
Raymond  v.  Glover,  122  Cal.  471;  55  Pac. 
39S. 

Exception,  defined.  The  exception  to  be 
taken  to  the  decision  of  the  court  is  an  ex- 
ception to  the  findings  of  fact,  which,  ordi- 
narily, is  based  on  the  insufficiency  of  the 
evidence  to  sustain  the  findings.  Thomp- 
son V.  Hancock,  51  Cal.  110.  An  essentiul 
part  of  the  definition  of  an  exception  is,, 
that  it  must  be  taken  upon  a  fact  or  facts 
not  denied.    Will  of  Bowen,  34  Cal.  682. 

Necessity  for  exception.  Prior  to  the 
amendment  of  §  647,  post,  in  1909,  an  ex- 
ception had  to  be  taken  to  the  admission; 
of  evidence,  before  it  could  be  com])lained 
of  (Crackel  v.  Crackel,  17  Cal.  App.  600; 
121  Pac.  295);  and  where  an  objection  was 
taken  to  evidence  by  counsel,  and  over- 
ruled, and  no  exception  taken  thereto,  it 
was  presumed,  on  appeal,  that  counsel  ac- 
quiesced in  the  ruling.  Turner  v.  Tuolumne- 
Count.y  Water  Co.,  25  Cal.  397;  Keeran  v. 
Griffith,  34  Cal.  580;  Russell  v.  Dennison,. 
45  Cal.  337;  Lucas  v.  Richardson,  68  Cal. 
618;  10  Pac.  183;  McGuire  v.  Drew,  83  CaL 
225;  23  Pac.  312;  Dickerson  v.  Dickerso^^ 
108  Cal.  351;  41  Pac.  475. 


Matters  deemed  excepted  to.    Post,  §  64  7. 
Amendments   to   exceptions.     Post.  §  650. 

Legislation  §  646.  1.  Enacted  March  11,  1S72; 
based  on  Practice  Act,  §  188,  which  read:  "An 
exception  is  an  objection  taken  at  the  trial  to  a 
decision  upon  a  matter  of  law,  whether  such  trial 
be  by  jury,  court,  or  referees,  and  whether  the 
decision  be  made  during  the  formation  of  a  jury, 
or  in  the  admission  of  evidence,  or  in  the  charge 
to  a  jury,  or  at  any  other  time  from  the  calling 
of  the  action  for  trial  to  the  rendering  of  the 
verdict  or  decision.  But  no  exception  shall  be  re- 
garded on  a  motion  for  a  new  trial,  or  on  an  ap- 
peal, unless  the  exception  be  material,  and  affect 
the  substantial  rights  of  the  parties."  When  en- 
acted in  1872,  §  646  read:  "Exceptions  may  be 
taken  by  either  party  to  any  ruling  or  decision 
made  Vjy  a  court  or  judge,  either  before  or  after 
judgment,  in  any  action  or  proceeding,  but  except 
in  the  cases  provided  for  in  the  next  section, 
must  be  taken  at  the  time  the  ruling  is  made." 

2.  .\mended  by  Code  Amdts.  1873-74,  p.  312, 
to  read:  "An  exception  is  an  objection  upon  a 
matter  of  law  to  a  decision  of  a  court,  judge,  or 
referee  in  an  action  or  proceeding,  and  may  be 
taken  by  either  party  to  any  decision  made  either 
before  or  after  judgment :  and  except  as  pro- 
vided in  the  following  section,  it  must  be  taken 
at  the  time  the  decision  is  made." 

3.  Amended  by  Vndc  Amdts.  1875-76,  p.  91. 

Construction  of  section.  Decisions  under 
special  statutes,  prior  to  the  adoption  of 
the  codes,  requiring  an  objection  to  the 
findings  in  the  court  below,  are  of  no  au- 
thority now.  Cargnani  v.  Cargnani,  16  Cal. 
App.  96;  116  Pac.  306.  Failure  of  the  court 
to  pass  on  the  question  of  the  admissibility 


701 


WAIVER — OBJECTIONS    FOR    FIRST    TIME    ON    APPEAL. 


§  C4G 


Waiver  of  objections.  Where  evitlence 
is  olVered  and  received  for  a  certain  pur- 
pose, the  i)arty  excepting  to  tlie  action  of 
the  court  in  overruling  his  objection 
thereto  may  accept  the  decision  for  tlio 
pur[)oses  of  the  future  conduct  of  the  case, 
and  his  doing  so  does  not  constitute  a 
waiver  of  the  objection  made.  Guunlian- 
shi]is  of  Hoycs,  151  Cal.  M.';;  Do  I'ac  (.'4. 

Objections  not  taken  at  trial,  considera- 
tion of,  on  appeal.  Where  cvidoiut'  is 
objected  to  ui)ou  a  particular  ground,  a 
contention  that  it  was  inadmissible  for  an- 
other reason  cannot  be  raised  for  the  first 
time  on  appeal.   Le  Mcsnager  v.  Hamilton, 

101  Cal.  532;  40  Am.  St.  Rep.  81;  3o  I'ac. 
1054.  Where  an  exception  is  not  taken 
at  the  time  a  decision  is  made,  except  as 
provided  in  §  647,  post,  no  objection  to  the 
ruling  can  be  urged  on  appeal.  Kandall  v. 
Freed,  154  Cal.  299;  97  Pac.  GG9.  An  ob- 
jection to  the  admissibility  of  evidence 
cannot  be  considered  on  appeal,  where  no 
objection  was  taken  thereto  at  the  trial 
(Estate  of  Arnold,  147  Cal.  5cS3;  82  Pac. 
252;  Estate  of  Doyle,  73  Cal.  564;  lo  Pac. 
125);  nor  an  objection  to  the  propriety  of 
a  question  asked  by  the  court  of  a  witness 
(Woods  v.  Jensen,  130  Cal.  200;  62  Pac. 
473);  nor  an  objection  to  the  opinion  evi- 
dence of  a  physician,  on  the  ground  that 
it  was  not  adapted  to  the  facts  in  the  case, 
and  was  not  based  on  a  hypothesis  consis- 
tent with  those  facts  (Healy  v.  Visalia 
etc.  R.  R.  Co.,  101  Cal.  585;  36  Pac.  125); 
nor  an  objection  to  the  testimony  of  an 
expert  witness,  that  he  did  not  possess  the 
requisite  knowledge  to  testify  on  the  sub- 
ject matter  of  the  case  (Brumley  v.  Flint, 
87  Cal.  471;  25  Pac.  683;  Ah  Tong  v. 
Earle  Fruit  Co.,  112  Cal.  679;  45  Pac.  7); 
nor  an  objection  on  the  ground  of  vari- 
ance between  the  evidence  and  the  alle- 
gations   of    the    complaint    (Bode    v.    Lee, 

102  Cal.  583;  36  Pac.  936;  Stockton  etc. 
Agricultural  Works  v.  Glens  Falls  Ins.  Co., 
121  Cal.  167;  53  Pac.  565;  Barrett  v.  Lake 
View  Land  Co.,  122  Cal.  129;  54  Pac.  594; 
Gushing  v.  Pires,  124  Cal.  663;  57  Pac.  572; 
Dikeman  v.  Norrie,  36  Cal.  94;  Bell  v. 
Knowles,  45  Cal.  193;  Hutchings  v.  Castle, 
48  Cal.  152;  Henry  v.  Southern  Pacific 
R.  R.  Co.,  50  Cal.  176;  Scott  v.  Sierra  Lum- 
ber Co.,  67  Cal.  71;  7  Pac.  131;  Estate  of 
Dovle,  73  Cal.  564;  15  Pac.  125;  Knox  v. 
Higby,  76  Cal.  264;  18  Pac.  381;  Evers- 
don  V.  Mavhew,  85  Cal.  1;  21  Pac.  431; 
24  Pac.  382;  Tuflfree  v.  Polhemus,  108  Cal. 
670;  41  Pac.  806;  Swamji  Land  District  v. 
Glide,  112  Cal.  85;  44  Pac.  451);  nor  an 
objection  to  the  allowance  or  settlement 
of  a  bill  of  exceptions  (Estate  of  Dough- 
erty, 139  Cal.  14;  72  Pac.  357);  nor  an  ob- 
jection to  the  legal  capacity  of  the  plain- 
tiff to  sue  (Phillips  v.  Goldtree,  74  Cal. 
151;  13  Pac.  313;  15  Pac.  451;  Cook  v. 
Fowler,  101  Cal.  89;  35  Pac.  431);  nor 
an    objection    that    an     action    cannot    bo 


maintained,  by  reason  of  the  plaintiff's  de- 
lay in  liringing  it  (Larkin  v.  Mullin,  128 
Cal.  449;  6U  Pac.  1091);  nor  an  objection 
to  the  delivery  of  a  sealed  verdict  to  the 
coroner,  instead  of  to  the  clerk,  and  the 
failure  of  the  court  to  ask  tiie  jurors 
whether  they  had  agreed  upon  their  ver- 
dict (Paige  v.  OWeal,  12  Cal.  4S3);  nor 
an  objection  that  there  was  no  jiroof  of  the 
genuineness  of  the  indorsement  of  an  in- 
strument ofiered  in  evidence  (Shain  v. 
Sullivan,  106  Cal.  208;  39  Pac.  6oG);  nor 
an  objection  to  the  refusal  of  the  court 
to  allow  an  amendment  to  the  comjdaint, 
after  a  demurrer  thereto  hail  been  sus- 
tained (Durrell  v.  Dooner,  119  Cal.  411; 
51  Pac.  62S);  nor  an  objection  to  the  in- 
structions of  the  court  to  the  jury  (Sharp 
v.  Hoffman,  79  Cal.  404;  21  Pac.  846;  Lynn 
v.  Southern  Pacific  Co.,  103  Cal.  7;  24 
L.  R.  A.  710;  36  Pac.  1018;  Merguire  v. 
O'Donnell,  103  Cal.  50;  36  Pac.  1023;  An- 
derson V.  Ilinshaw,  110  Cal.  682;  43  Pac. 
389;  Laver  v.  Hotaling,  115  Cal.  613;  47 
Pac.  593;  Brvant  v.  Broa<lwell,  140  Cal. 
490;  74  Pac.  33;  Story  v.  Nidiffer.  146  Cal. 
549;  80  Pac.  692),  not  taken  until  the  re- 
turn of  the  jury  (Garoutte  v.  Williamson, 
108  Cal.  135;  41  Pac.  35,  413;  Collier  v. 
Corbett,  15  Cal.  183;  Mallett  v.  Swain,  56 
Cal.  171),  as  the  law,  in  deterniiniug  the 
merits,  is  fixed  by  such  instructions  (Lvnn 
V.  Southern  Pacific  Co.,  103  Cal.  7;"  24 
L.  R.  A.  710;  36  Pac.  1018);  nor  an  ob- 
jection to  the  action  of  the  court  in  giving 
contradictory  instructions  (Sierra  Union 
Water  etc.  Co.  v.  Baker,  70  Cal.  572;  8 
Pac.  305;  11  Pac.  654);  nor  an  objection 
to  further  instructions  of  the  court  to  the 
jury,  given  at  their  request  (Southern 
I'acifie  R.  R.  Co.  v.  Sujierior  Court,  105 
Cal.  84;  38  Pac.  627);  nor  an  objection 
to  the  uncertainty  of  the  verdict  of  the 
jury,  in  response  to  special  issues  (Shaw  v. 
Shaw,  160  Cal.  733;  117  Pac.  1048);  nor 
an  objection  to  the  allowance  of  costs 
(People  V.  Marin  County,  103  Cal.  223; 
26  L.  R.  A.  659;  37  Pac.  203);  nor  an  ob- 
jection to  the  method  of  iirocedure,  where 
the  complaint  gave  jurisdiction  to  a  court 
of  equity  (Broadwav  Ins.  Co.  v.  Welters, 
128  Cal.'l62;  60  Pac'  766;  Wood  v.  Currey, 
49  Cal.  359;  Thompson  v.  Laughlin,  91  Cal. 
313;  27  Pac.  752);  nor  an  objection  to  an 
order  striking  out  the  statement  on  mo- 
tion for  a  new  trial  ((^Juivey  v.  Gambert, 
32  Cal.  304);  nor  an  objection  to  an  order 
striking  a  bill  of  costs  from  the  files 
(Brown  v.  Delavau,  63  Cal.  303);  nor  an 
exception  to  the  refusal  of  the  court  to 
hear  evidence  in  support  of  the  defense 
that  work  contracted  to  be  done  was  not 
done,  or  that  the  specifications  were  dis- 
regarded, or  disregarding  such  evidence 
in  its  decision  (Santa  Cruz  Rock  Pavement 
Co.  V.  Bowie,  104  Cal.  2SG;  37  Pac  034); 
nor  an  objection  to  the  action  of  the  court 
in  recognizing  the  right  of  petitioners  to 


§647 


EXCEPTIONS. 


702 


ask  for  the  revocation  of  the  probate  of 
a  will,  and  the  court  heard  the  petition 
and  rendered  a  judgment  denying  the 
revocation  (Estate  of  Kobinson,  lOG  Cal. 
493;  39  Pac.  862);  nor  an  objection  to  a 
ruling  granting  a  motion  for  a  nonsuit 
(Schroeder  v.  ^Schmidt,  74  Cal.  459;  16 
Pac.  243;  Flashner  v.  Waldron,  86  Cal. 
211;  24  Pac.  1063;  Warner  v.  Darrow,  91 
Cal.  309;  27  Pac.  737;  Maloue  v.  Beardslev, 
92  Cal.  150;  28  Pac.  218;  Craig  v.  Hesperia 
Land  etc.  Co.,  107  Cal.  675;  40  Pac.  1057; 
Hanna  v.  De  Garmo,  140  Cal.  172;  73  Pac. 
830;  Estate  of  Kasson,  141  Cal.  33;  74 
Pac.  436;  Cravens  v.  Dewey,  13  Cal.  40); 
nor  an  objection  to  the  ruling  of  the  court 
in  the  allowance  or  exclusion  of  ballots  in 
an  election  contest  (Lay  v.  Parsons,  104 
Cal.  661;  38  Pac.  447);  nor  an  exception 
to  a  ruling  denying  an  application  to  file 
a  complaint  in  intervention  (Grand  Grove 
V.  Garibaldi  Grove,  105  Cal.  219;  38  Pac. 
947);  nor  an  objection  to  the  sufHciency 
of  the  complaint  to  raise  a  particular  is- 
sue (Illinois  Trust  etc.  Bank  v.  Pacific  Ey. 
Co.,  115  Cal.  285;  47  Pac.  60;  King  v. 
Davis,  34  Cal.  100;  Horton  v.  Domiuguez, 
68  Cal.  642;  10  Pac.  186;  Moore  v.  Camp- 
bell, 72  Cal.  251;  13  Pac.  689;  'Sukeforth 
V.  Lord,  87  Cal.  399;  25  Pac.  497;  Sprigg 
V.  Barber,  122  Cal.  573;  55  Pac.  419;  Gush- 
ing V.  Pires,  124  Cal.  663;  57  Pac.  572; 
Casey  v.  Leggett,  125  Cal.  664;  58  Pac. 
264);  nor  objections  to  the  form  of  the  ac- 
tion, or  to  the  pleadings,  or  to  the  admis- 
sion of  evidence,  or  to  any  ruling  of  the 
court  (Morse  v,  Wilson,  138  Cal.  558;  71 
Pac.  801);  but  an  objection  that  the  com- 
plaint does  not  state  facts  sufficient  to 
constitute  a  cause  of  action  may  be  taken 
at  any  time,  and  may  be  taken  for  the 
first  time  on  appeal.  Holly  v.  Heiskell,  112 
Cal.  174;  44  Pac.  466. 

Order,  defined.  An  "order,"  as  that  word 
is  used  in  this  section,  is  a  decision  made 
during  the  progress  of  the  cause,  either 
prior  or  subsequently  to  final  judgment, 
Bettling  some  point  of  practice,  or  some 
question  collateral  to  the  main  issue  pre- 
sented by  the  pleadings,  and  necessary  to 
be  disposed  of  before  such  issue  can  be 
passed  on  by  the  court,  or  necessary  to  be 
determined  in  carrying  into  execution  the 
final  judgment.  McGuire  v.  Drew,  S3  Cal. 
225;  23  Pac.  312. 

Necessity  and  sufficiency  of  objection  and  ex- 
ception to  improper  argument  of  counsel.  See 
note  7  Ann.  Cas.  229. 


Failure  to  object  to  admission  of  evidence  at 
former  trial  as  precluding  objection  at  subsequent 
trial.     See  note  19  Ann.  Cas.  1279. 

CODE  COHOaSSIONEES'  NOTE.  See  note  to 
§  661  of  this  code. 

1.  Wben  and  bow  taken.  To  the  rulings  of  a 
referee  duriig  the  trial.  Tyso^n  v.  Wells,  2  Cal. 
122.  To  a  deposition  at  the  time  it  is  offered  in 
evidence.  Dye  v.  Bailey,  2  Cal.  384.  To  the 
form  of  a  deed  at  the  trial  in  the  court  below. 
Posten  V.  Kassette,  5  Cal.  468.  To  the  intro- 
duction of  evidence  at  the  time  it  is  offered. 
Covillaud  v.  lanner,  7  Cal.  38.  A  party  cannot, 
by  consenting  to  admit  evidence,  "subject  to  all 
legal  e.xceptions,"  avoid  the  necessity  of  taking 
exceptions  to  the  relevancy  or  sutliciency  thereof, 
and  devolve  the  responsibility  of  discovering 
whatever  objections  may  exist  in  the  court  below, 
and  for  the  first  time  assign  his  objections  in  the 
supreme  court.  Id.  If  a  party  objects  to  the 
admission  of  evidence  on  trial,  he  must  state 
the  point  of  his  objection  at  the  time.  General 
objection  will  not  do.  He  must  lay  his  finger  on 
the  point  at  the  time  of  trial,  otherwise  the  ap- 
pellate court  cannot  review  it.  Martin  v.  Travers, 
12  Cal.  243;  Leet  v.  Wilson,  24  Cal.  399;  leaker 
v.  Joseph,  16  Cal.  177;  People  v.  Gle.ni,  10  Cal. 
32.  An  objection  to  the  sutliciency  oi  evidence 
must  be  made  at  the  tiiae  the  evidence  is  offered 
to  be  introduced,  so  that  a  party  may  have  the 
opportunity  of  supnlying  the  necessary  evidence. 
Goodale  v.  West,  5  Cal.  339;  Mott  v.  Smith,  16 
Cal.  533.  An  objection  to  the  admissibility  of 
a  deed  in  evidence  must  be  made  on  the  trial  "f 
the  cause,  at  nisi  prius,  and  an  exception  taken, 
or  the  point  cannot  be  considered  on  appeal. 
Pearson  v.  Snodgrass,  5  Cal.  478.  Where  the 
objection  to  the  introduction  of  testimony  was, 
in  general  terms,  that  it  was  irrelevant,  it  will 
not  be  considered  in  the  supreme  court,  if  the 
testimony  could  under  any  possible  circumstances 
have  been  relevant.  Dreux  v.  Domec,  18  Cal.  83. 
The  one  hundred  and  eighty-eighth  section  of 
the  Practice  Act  did  not  tix  the  precise  time 
when  an  exception  to  the  charge  of  the  court 
to  the  jury  must  be  taken.  St.  John  v.  Kidd,  26 
Cal.  265.  If,  under  it,  an  exception  to  the 
charge  of  the  court  is  taken  after  the  jury  have 
withdrawn  to  consider  their  verdict,  and  before 
the  verdict  is  rendered,  the  question  of  allowing 
or  disallowing  the  exception  rests  in  the  discre- 
tion of  the  court,  and  whether  allowed  or  disal- 
lowed, the  supreme  court  will  not  interfere  with 
the  exercise  of  this  discretion.  A  party  cannot 
take  his  chances  for  a  verdict  on  instructions 
given  or  refused  without  exceptions  taken,  and 
after  the  verdict,  except  to  the  action  of  the  court. 
Letter  v.  Putney,  7  Cal.  423.  Exceptions  to  the 
charge  of  a  court  must  point  out  the  specific 
portions  of  the  charge  excepted  to,  and  ought  to 
be  made  at  the  time  of  the  trial,  and  before  the 
jury  retires.  Hicks  v.  Coleman,  25  Cal.  123;  85 
Am.  Dec.  103. 

2.  Exceptions  by  prevailing  party.  Unless  the 
respondent  takes  an  appeal,  the  appellate  court 
will  not  look  into  exceptions  taken  by  him.  Prank 
V.  Doane,  15  Cal.  3U4;  Pierce  v.  Jackson,  21  Cal. 
636;  Travers  v.  Crane,  15  Cal.  12;  Jackson  v. 
Feather  River  etc.  Water  Co.,  14  Cal.  18. 

3.  Technical  exceptions.  If  the  judgment  is 
right  on  the  merits,  the  appellate  court  will  not 
sustain  mere  technical  exceptions  taken  in  the 
course  of  the  trial,  unless  compelled  by  law  so  to 
do.  English  v.  Johnson,  17  Cal.  107;  76  Am.  Dec. 
574. 


§  647.    Verdict  or  order  in  absence  of  party,  deemed  excepted  to.     The 

verdict  of  the  jury,  the  final  decision  in  an  action  or  proceeding,  an  inter- 
locutory order  or  decision,  finally  determining  the  rights  of  the  parties, 
or  some  of  them,  an  order  or  decision  from  wdiich  an  appeal  may  be  taken, 
an  order  sustaining  or  overruling  a  demurrer,  allowing  or  refusing  to  allow 
an  amendment  to  a  pleading,  striking  out  a  pleading  or  a  portion  thereof, 
refusing  a  continuance,  an  order  made  upon  ex  parte  application,  giving 


703 


WHAT  DKEMED  EXCEPTED  TO. 


§G47 


an  instruction,  although  no  objection  to  such  instruction  was  made,  refus- 
ing to  give  an  instruction,  modifying  an  instruction  reciuested,  an  order  or 
decision  made  in  the  absence  of  the  party  or  an  order  granting  or  denying 
a  nonsuit  or  a  motion  to  sti-ike  out  evidence  or  testimony,  and  a  ruling 
sustaining  or  overruling  an  objection  to  evidence,  are  deemed  to  have  be<n 
excepted  to. 

churp,  -17  C'al.  1C7),  and  an  or.ior  of  the 
jTobatc  court  (lircctin{{  a  conveyaiico  of 
real  estate,  was  not  deemed  excepted  to, 
and  a  bill  of  exceptiong  was  required.  Es- 
tate of  f'orwin,  Gl  (,'al.  IGO. 

Order  striking  out  pleading.  This  sec- 
tion doos  not  make  an  or. lor  .striking  out 
a  pleading,',  or  a  portion  thereof,  a  part  of 
the  judgment  roll,  though  it  is  deemed  ex- 
cepted to:  such  order  must  be  presented  by 
a  bill  of  exceptions.  Ilawley  v.  Kocher, 
123  Cal.  77;  55  Pac.  69G.  An  order  strik- 
ing out  a  cross-complaint  is  deemed  ex- 
cepted to    (Alpers   v.   Bliss,   145   Cal.   565; 

79  Pac.  171);  as  is  al'so  an  order  striking 
out  a  demurrer  (Davis  v.  Honey  Lake 
Water  Co.,  98  Cal.  415;  33  Pac.  270);  but 
an  order  refusing  to  strike  out  an  amended 
answer  and  cross-complaint  was  not  form- 
erly deemed  excepted  to.  Gauceart  v. 
Henry,  98  Cal.  281;  33  Pac.  92. 

Ex  parte  order.  An  ex  parte  order  after 
judgment,  correcting  the  record  to  corre- 
spond to  the  facts,  is  deemed  excepted  to. 
People  V.  O'Brien,  4  Cal.  App.  723;  89  Pac. 
438. 

Instructions.  Prior  to  the  amendment  of 
this  section  in  1907,  instructions  could  not 
be  reviewed  on  appeal,  unless  excepted  to. 
Fleischhauer    v.    Fabens,   8    Cal.    App.    30; 

96  Pac.  17;  Randall  v.  Freed,  154  Cal.  299; 

97  Pac.  669;  Storv  v.  Nidiffer,  146  Cal.  549; 

80  Pac.  692. 
Order   made   in   absence   of   party.     An 

order  made  in  the  absence  of  a  party,  al- 
though deemed  e.xcepted  to,  must  be  shown 
by  the  bill  of  exceptions  to  have  been 
actually  made  in  his  absence;  and  where 
it  does  not  apj)ear  that  an  order  granting 
plaintiff's  motion  for  judgment  on  ai>peal 
was  made  in  the  absence  of  the  defendant, 
it  will  not  be  deemed  excepted  to.  Lamet 
V.  Miller,  2  Cal.  Uurep.  (579;  11  Pac.  744. 

Order  granting  or  denying  nonsuit.  Prior 
to  the  aniciidnient  of  this  .se<'tion  in  1909, 
it  was  necessary,  in  order  to  protect  the 
right  of  appeal,  to  reserve  an  exception 
to  an  order  on  a  motion  for  a  nonsuit 
(Saul  v.  Moscone,  16  Cal.  App.  506;  118 
Pac.  452);  and  previous  to  that  amendment 
the  improper  granting  of  a  nonsuit  was 
not  deemed  excepted  to  (Smith  v.  Ilyer,  11 
Cal.  App.  597;  105  Pac.  787;  Flasliner  v. 
Waldron.  86  Cal.  211;  24  Pac.  1063;  Hanna 
V.  De  Garmo,  140  Cal.  172;  73  Pac.  830); 
nor  an  order  refusing  a  nonsuit.  Witkowski 
V.  Hern,  S2  Cal.  604;  23  Pac.  132;  S.hrooder 
V.  Schmidt,  74  Cal.  459;   16  Pac  2  43. 

Order  admitting  or  excluding  evidence. 
Before   the   amendment   of   this   section    in 


Legislation  ft  647.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  191.  which  read:  "When 
a  cause  has  been  tried  by  the  court,  or  by  ref- 
erees, and  the  decision  or  report  is  not  made  im- 
mediately after  the  closing  of  the  testimony,,  the 
decision  or  report  shall  be  deemed  excepted  to  on 
motion  for  a  new  trial  or  on  appeal,  without  any 
special  notice  that  an  exception  is  taken  thereto.  ' 
\Vhen  enacted  in  1872,  §  647  read:  "The  adverse 
party  is  deemed  to  have  excepted  to  the  verdict  of 
the  jury,  or  the  final  decision  of  the  court  or  ref- 
eree, to  an  order  granting  or  refusing  a  new  trial, 
sustainini;;  or  overruling  a  demurrer,  striking  out 
a  pleading  or  any  part  thereof,  granting  or  refus- 
ing a  continuance,  granting  or  refusing  to  change 
the  place  of  trial;  and  is  also  deemed  to  have  ex- 
cepted to  every  order,  ruling,  or  proceeding  made 
or  had  in  the  action  or  proceeding,  either  before 
or  after  judgment,  upon  an  ex  parte  application." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  92, 
to  read  as  at  present,  down  to  and  including  the 
words  "refusing  a  continuance,"  the  section,  after 
these  words,  reading,  "an  order  made  upon  ex 
parte  application,  and  an  order  or  decision  made 
in  the  absence  of  a  party,  are  deemed  to  have 
been  excepted  to." 

3.  Amendment  by  Stats.  1901,  p.  146;  un- 
constitutional.   See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  715,  adding, 
after  "refusing  a  continuance,"  the  words  "modi- 
fying, giving,  or  refusing  to  give,  in  whole  or  in 
part,  an  instruction  to  the  jury." 

5.  -Amended  by  Stats.  1909,  p.  586.  changing 
the  section,  after  the  words  "refusing  a  continu- 
ance," to  read  as  now  printed. 

Final  decree.  No  exception  is  required 
to  a  final  .judgment.  Thompson  v.  Hancock, 
51  Cal.  110.  A  summary  dismissal  of  an 
action,  before  the  amendment  of  this  sec- 
tion in  1909,  without  any  motion  for  a 
nonsuit,  was  a  final  judgment,  "deemed 
excepted  to";  and,  where  the  evidence  for 
the  plaintiff  was  sufficient  to  support  a 
judgment  in  his  favor,  no  exception  was 
required  as  a  prerequisite  to  reviewing 
such  judgment  upon  appeal.  Saul  v.  Mos- 
cone,'l6  Cal.  App.  506;  118  Pac.  452. 

Interlocutory  order  or  decision.  This 
section  makes  exjiress  recognition  of  inter- 
locutory orders  or  decisions.  Thompson  v. 
White,  63  Cal.  505.  An  order  denying  a 
motion  to  set  aside  a  default  judgment  on 
the  ground  of  surprise  is  deemed  excepted 
to.  Roberts  v.  Wilson,  3  Cal.  App.  32;  84 
Pac.  216. 

Order  refusing  amendment  of  complaint. 
An  order  denying  the  right  to  amend  a 
complaint  is  deemed  excepted  to.  Schaake 
V.  Eagle  Automatic  Can  Co.,  135  Cal.  472; 
63  Pac.  1025;  67  Pac.  759. 

Appealable  order.  An  order  after  judg- 
ment, denying  a  motion  for  the  entry  of  a 
different  judgment  on  the  findings,  being 
appealable,  is  deemed  excepted  to.  Rah- 
mel  V.  Lehndorff,  142  Cal.  681;  100  Am.  St. 
Rep.  154;  65  L.  R.  A.  88;  76  Pac.  659. 
Previously,  an  excejition  to  an  order  set- 
ting aside  a  default   (Grazidal  v.  Bastan- 


§648 


EXCEPTIONS. 


704 


1909,  a  ruling  either  admitting  or  exclud- 
ing evidence  was  not  deemed  excepted  to. 
McGuire  v.  Drew.  S3  Cal.  225;  23  Pac.  312; 
Eandall  v.  Freed,  154  Cal.  299;  97  Pac.  669. 

Order  refusing  supplemental  complaint. 
An  order  refusing  to  allow  a  supplemental 
complaint  to  be  filed  is  not  deemed  ex- 
cepted to.  Giddings  v.  76  Land  and  Water 
Co.,  109  Cal.  116;  41  Pac.  788. 

Order  for  judgment  on  pleadings.  An 
order  granting  a  motion  for  jmlgment  on 
the  pleadings,  when  made  in  the  presence 
of  a  party,  was,  formerly,  not  deemed  ex- 
cepted to,  but,  being  a  final  decision  in 
the  action,  determining  the  rights  of  a 
party,  and  also  a  decision  from  which  an 
appeal  may  be  taken,  it  is  deemed  excepted 
to  by  the  provisions  of  this  section.  Lamet 
V.  Miller,  2  Cal.  rnrep.  679;  11  Pac.  744. 

Rulings  in  calling  a  jury.  Rulings  in 
calling  a  jury  are  not  deemed  excepted  to. 
Eandall  v.  Freed,  154  Cal.  299;  97  Pac.  669. 

Time  of  service  of  statement  for  new 
trial.  An  objection,  that  the  statement 
on  motion  for  a  new  trial  was  not  served 
in  time,  is  not  deemed  excepted  to.  Perry 
v.  Noonan  Loan  Co.,  1  Cal.  App.  609;  82 
Pac.  623. 

Under  Practice  Act.  An  onler  admitting 
a  will  to  probate  was  deemed  excepted  to, 

§  648.  Exception,  form  of.  No  particular  form  of  exception  is  required, 
but  when  the  exception  is  to  the  verdict  or  decision,  upon  the  ground  of 
the  insufficiency  of  the  evidence  to  justify  it,  the  objection  must  specify 
the  particulars  in  which  such  evidence  is  alleged  to  be  insufficient.  The 
objection  must  be  stated,  with  so  much  of  the  evidence  or  other  matter  as  is 
necessary  to  explain  it,  and  no  more.  Only  the  substance  of  the  reporter's 
notes  of  the  evidence  shall  be  stated.  Documents  on  file  in  the  action  or 
proceeding  may  be  copied,  or  the  substance  thereof  stated,  or  a  reference 
thereto  sufficient  to  identify  them  may  be  made. 

Legislation  §  648.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  190,  which  read:  "No 
particular  form  of  exception  shall  be  required. 
The  objection  shall  be  stated,  with  so  much  of 
the  evidence,  or  other  matter,  as  is  necessary  to 
explain  it,  but  no  more;  and  the  whole  as  briefly 
as  possible."  When  enacted  in  1872,  §  643 
read:  "No  particular  form  of  exception  is  required. 
The  objection  must  be  stated,  with  so  much  of 
the  evidence  or  other  matter  as  is  necessary  to 
explain  it,  and  no  more.  But  when  the  exception 
is  to  the  verdict  or  decision,  upon  the  grounds  of 
the  insufficiency  of  the  evidence  to  sustain  it,  the 
objection  must  specify  the  particulars  in  which 
such  evidence  is  alleged  to  be  insufficient." 

3.   Amended  by  Code  Amdts.  1875-76,  p.  92. 


under  the  Practice  Act  (Will  of  Bowen,  34 
Cal.  682);  and  also  the  report  of  a  referee, 
not  made  immediately  after  the  close  of 
the  testimony.   Hadley  v.  Eeed,  2  Cal.  322. 

Effect  of  stipulation.  Where  it  is  stipu- 
lated that  the  cause  be  submitted  to  the 
court  upon  the  record  of  a  former  trial  be- 
fore a  jury,  without  expressing  any  reser- 
vation of  rulings  and  exceptions  talcen 
upon  the  former  trial,  there  can  be  no  re- 
view. Grunsky  v.  Field,  1  Cal.  App.  623; 
82  Pac.  979. 

Necessity  for  exception.  Objections  as 
to  matters  not  deemed  excepted  to  are  not 
available,  unless  an  exception  is  taken. 
Kearney  v.  Bell,  160  Cal.  670;  117  Pac. 
925;  Grazidal  v.  Bastanchure,  47  Cal.  167; 
Perry  v.  Noonan  Loan  Co.,  1  Cal.  App.  609; 
82  Pac.  623. 

Necessity  for  objection  in  addition  to  exception 
in  order  to  save  giving  of  instruction  for  review. 
See  note  Ann.  Cas.  1912B.  1231. 

Effect  of  failure  to  move  to  strike  out  testi. 
mony  which  has  been  admitted  over  objection 
with  question  reserved.  See  note  Ann.  Cas. 
1912C,  711. 

CODE  COMMISSIONERS'  NOTE.  The  ver- 
dict, decision,  order,  or  ruling,  in  the  instances 
specified  in  this  section,  may  be  rendered  or  had 
in  the  absence  of  the  losing  parly,  and  it_was 
for  this  reason  that  provision  was  made  giving 
him  an  exception  by  operation  of  law. 


No  particular  form  of  exception  required. 
No  particular  form  of  oxccfitiou  is  re- 
quired. Estate  of  Piper,  147  Cal.  606;  82 
Pac.  246.  The  provisions  of  this  section 
are  mainly  intended  as  a  guide  to  the  judge 
in  settling  the  bill,  though  a  duty  is  im- 
posed on  the  moving  party  to  proceed  in 
good  faith,  and  to  do  his  share  of  the 
work  in  the  settlement  of  the  bill,  and  he 
cannot  impose  on  the  adverse  party,  or  on 
the  judge,  the  labor  of  preparing  matters 
which  Le  knows  a  i>roper  and  fair  bill  of 


exceptions  ought  to  contain,  nor  should  he 
include  statements  or  matters  that  are  un- 
true or  irrelevant;  and  a  corresponding 
duty  rests  on  the  adverse  partv.  Walk- 
erley  v.  Greene,  104  Cal.  208;  37"Pac.  890; 
and  see  Hearst  v.  Dennison,  72  Cal.  228; 
13  Pac.  628.  This  section  cannot  be  con- 
strued to  mean  that  the  party  desiring  a 
biir  of  e-xceptions  must  propose  a  perfect 
bill  in  the  first  draft,  or  forfeit  his  right 
to  a  review  of  the  decision  from  which  he 
appeals.  Walkerley  v.  Greene,  104  Cal. 
208;  37  Pac  890. 

BiU  must  specify  wherein  evidence  is 
Insufficient.  A  bill  of  exceptions,  contain- 
ing only  a  general  exception  to  the  decis- 
ion and  order  of  the  court  for  entry  of 
judgment,  without  any  specification  of  par- 
ticulars, is  insufficient  to  authorize  the  ap- 
pellate court  to  examine  the  evidence  for 
the  purpose  of  determining  its  sufficiency 
to  justifv  the  findings.  San  Francisco  v. 
Pacific  Bank,  89  Cal  23;  26  Pac.  615.  835. 
The  mere  statement  that  a  party  excepted 


705 


SUFFICIENT  SPECIFICATION  OF  ERROR. 


§G48 


to  the  decision  of  the  court,  unaccora- 
paiiicd  by  the  objection,  and  the  {;roiind3 
on  which  it  was  made,  does  not  constitute 
an  exception  available  on  appeal.  Estate 
of  Page,  57  Cal.  23S.  A  specification  that 
the  judgment  is  contrary  to  tlie  evidence, 
and  stating  wherein,  does  not  enable  the 
court  to  inquire  whether  the  findings  are 
justified  by  the  evidence.  Coveny  v.  Hale, 
49  Cal.  552;  Watson  v.  San  Francisco  etc. 
R.  R.  Co.,  50  Cal.  523;  Bonner  v.  Quackcn- 
bush,  51  Cal.  ISO;  Eltzroth  v.  Ryan,  S9  Cal. 
135;  26  Pac.  G47;  Winterburn  v.  Cham- 
bers, 91  Cal.  170;  27  Pac.  G5S;  Commercial 
Bank  v.  Redfield,  122  Cal.  405;  55  Pac. 
160,  772;  Estate  of  Behrens,  130  Cal.  416; 
62  Pac.  603.  A  general  specification,  "that 
the  evidence  is  wholly  insufficient  to  jus- 
tify a  judgment  in  favor  of  the  plaintiffs," 
is  improper,  as  not  giving  the  particulars. 
Rousseau  v.  Cohn,  20  Cal.  App.  4G9;  129 
Pac.  618.  Where  a  finding  is  assailed  as 
unsupported  by  the  evidence,  there  must 
be  specifications  of  insufficiencv.  Knoch 
V.  Haizlip,  163  Cal.  146;  124  Pac.'ggS.  The 
sufficiency  of  the  evidence  to  sup])ort  the 
decision  cannot  be  reviewed,  when  the  bill 
of  exceptions  contains  no  specifications  of 
the  particulars  in  which  the  evidence  is  al- 
leged to  be  insufficient.  Hawley  v.  Har- 
rington, 152  Cal.  ISS;  92  Pac.  177.  A 
specification  of  the  insufficiency  of  the  evi- 
dence to  justify  the  decision  cannot  be 
noticed  on  appeal,  where  it  is  impossible 
to  ascertain  in  what  particular  the  evi- 
dence fails  to  support  any  finding  referred 
to.  Bell  V.  Staacke,  7  Cal.  Unrep.  28;  70 
Pac.  472.  A  bill  of  exceptions  containing 
no  specification  of  the  insufficiency  of  the 
evidence  to  justify  the  findings,  and  no  as- 
signment of  error  in  any  particular,  can- 
not be  considered  on  appeal  from  an  order 
denving  a  new  trial.  Sather  Banking  Co. 
V.  Briggs  Co.,  138  Cal.  724;  72  Pac.  352; 
Leonard  v.  Shaw,  114  Cal.  69;  45  Pac.  1012. 
The  court  cannot  consider  a  statement  on 
motion  for  a  new  trial  to  determine 
whether  or  not  the  evidence  supports  the 
findings  and  decision,  where  the  statement 
contains  no  specifications  of  error,  as  pre- 
scribed by  this  section.  Meek  v.  Southern 
California  Ry.  Co.,  7  Cal.  App.  006;  95  Pac. 
166.  A  finding  is  conclusive  upon  appeal, 
where  there  is  no  specification  of  insuffi- 
ciency of  the  evidence  to  justify  it.  Es- 
tate of  Piper,  147  Cal.  606;  82  Pac.  246. 
Sufficient  specification  of  error,  what  is. 
A  general  specification  of  error  in  findings 
is  insufTtlciont,  where  there  is  more  than 
one  findin;^-,  and  it  is  impossible  to  ascer- 
tain w'hich  finding  is  attacked.  Meek  v. 
Southern  California  Ry.  Co.,  7  Cal.  App. 
606;  95  Pac.  166.  On  appeal  from  an  order 
refusing  to  revoke  letters  of  guardianship, 
and  to  set  aside  an  order  fixing  the  amount 
of  the  guardian's  bond,  the  bill  of  excep- 
tions must  contain  a  specification  of  the 
particulars  wherein  the  evidence  is  insuflS- 
1  Fair. — 45 


cicnt  to  justify  the  findings;  otherwise 
tiio  court  cannot  review  the  evicjenco  and 
consiiler  its  sufliciency  to  8uj>port  the  order. 
Guardianship  of  Baker,  153  Cal.  537;  96 
Pac.  12.  Each  distinct  proposition  ex- 
cepted to  on  the  ground  that  it  is  not  jus- 
tified by  the  evidence  should  be  separately 
specified,  and  no  statement  of  the  evidence, 
or  deduction  therefrom  by  way  of  argu- 
ment, is  proper  in  connection  with  the 
specification.  Baird  v.  Peall,  92  Cal.  235; 
28  Pac.  285.  Upon  a  specification  that 
the  evidence  is  insuflicient  to  justify  the 
decision,  where  the  evidence  concerning 
the  fact  in  dispute  is  full  and  complete, 
an  objection  to  the  consideration  of  its 
sufficiency,  on  the  ground  that  certain  evi- 
dence is  not  set  out  in  the  bill  was  by 
stipulation  considered  evidence,  will  be 
overruled.  Sullivan  v.  Washburn  etc.  Mfg. 
Co.,  139  Cal.  257;  72  Pac.  992.  Specifica- 
tions clearly  designating  the  findings  and 
parts  of  findings  which  it  is  claimed  the 
evidence  does  not  justify  are  sufficient: 
no  reference  to  the  evidence  is  required, 
except  to  say  that  it  is  insufficient  to  jus- 
tify the  particular  finding  called  in  ques- 
tion. Swift  v.  Occidental  Mining  etc.  Co., 
141  Cal.  161;  74  Pac.  700.  Specifications 
of  the  particular  items,  in  an  action  on 
account,  wdiich  the  appellant  deems  to  be 
unsupported  by  the  evidence,  sufficiently 
advise  the  resfiondent  of  the  particulars 
wherein  he  should  take  note  whether  the 
evidence,  if  pny,  sustaining  the  account 
appeared  in  the  bill  of  exceptions  when 
proposed.  Estate  of  Levinson,  108  Cal- 
450;  41  Pac.  483;  42  Pac.  479.  Specifica- 
tions, in  an  action  to  recover  property, 
ignoring  the  release  of  property  by  a 
sherifT,  and  based  on  a  statement  that  it 
was  never  taken  by  the  sherifif,  constitute 
an  insufficient  statement  that  the  jury  dis- 
regarded the  evidence  relating  to  the  re- 
lease. Rider  v.  Edgar,  54  Cal.  127.  Where 
a  bill  of  exceptions  expressly  shows  that 
the  only  question  to  be  raised  on  motiou 
for  a  new  trial  was  as  to  whether  or  not 
the  plaintiff  was  entitled  to  damages,  and 
the  bill  included  all  the  evidence  bearing 
on  the  question,  a  specification  pointing 
to  the  sole  question  professedly-  involved 
in  the  motion,  so  that  the  opposite  party 
might  see  that  all  the  evidence  bearing  on 
the  issue,  and  proper  to  be  considered  by 
the  court,  was  set  forth  in  the  bill,  is  suffi- 
cient. Livestock  Gazette  Pub.  Co.  v.  Union 
Stockyard  Co.,  114  Cal.  447;  46  Pac.  2S6. 
A  specification  that  the  evidence  does  not 
show  certain  facts,  is  equivalent  to  saying 
that  the  evidence  is  insuflicient  to  justify 
a  decision  on  those  particular  facts,  and  is 
insufficient.  Estate  of  Path,  132  Cal.  609; 
64  Pac.  995.  A  specification  that  the  plain- 
tiff showed  no  right  of  possession  to  prem- 
ises sued  for,  as  against  the  defendant,  or 
at  all,  is  not  a  sufficient  specification  of 
the  particulars  in  which  the  evidence  failed 


§648 


EXCEPTIONS. 


706 


to  show  a  tender  of  the  purchase-money, 
in  an  action  to  foreclose  a  contract  to  pur- 
chase: such  specification  is  as  applicable 
to  any  other  of  a  series  of  alleged  facts 
on  which  the  plaintiff  relied  to  make  out 
his  right  of  possession.  Thorne  v.  Ham- 
mond, 46  Cal  530.  A  specification  that 
the  court  erred  in  finding  certain  facts  is 
insuflScient  (Coglan  v.  Beard,  67  Cal.  303; 
7  Pae.  738);  as  is  also  a  specification  that 
the  court  erred  in  its  finding,  inasmuch 
as  the  testimony  did  not  disclose  the  state 
of  facts  found  (Gamble  v.  Tripp,  99  Cal. 
223;  33  Pac.  Sol);  and  an  objection  to  the 
introduction  of  evidence,  as  incompetent, 
irrelevant,  and  immaterial  without  show- 
ing in  what  respect  it  is  so.  Adams  v. 
Crawford,  116  Cal.  495;  48  Pac.  488. 
Where  testimony  is  objected  to  as  incom- 
petent, irrelevant,  and  immaterial  upon  a 
particular  ground,  a  contention  that  it  was 
inadmissible  for  another  reason  cannot  be 
raised  for  the  first  time  on  appeal.  Le 
Mesnager  v.  Hamilton,  101  Cal.  532;  40 
Am.  St.  Eep.  81;  35  Pac.  1054;  and  see 
Adams  v.  Crawford,  116  Cal.  495;  48  Pac. 
488.  Where  a  particular  finding  is  as- 
sailed as  being  wholly  without  evidence  to 
support  it,  a  more  particular  specifica- 
tion is  not  required.  Eousseau  v.  Cohn, 
20  Cal.  App.  469;  129  Pac.  618.  Where 
there  is  no  evidence  to  sustain  a  finding, 
it  is  not  necessary  to  specify  the  par- 
ticulars in  which  the  evidence  is  insuffi- 
cient: the  burden,  in  such  case,  is  on  the 
party  sustaining  the  finding  to  point  out 
enough  evidence  to  justify  it  (San  Luis 
Water  Co.  v.  Estrada,  117  Cal.  168;  48 
Pac.  1075) ;  but  where  there  is  slight  evi- 
dence to  sustain  the  finding,  the  specifica- 
tion of  the  insufficiency  cannot  be  dispensed 
with.  Estate  of  Behrens,  130  Cal.  416;  62 
Pac.  603.  An  order  striking  out  a  com- 
plaint, duly  excepted  to,  may  be  reviewed, 
though  the  bill  of  exceptions  contains  no 
specification  of  the  particulars  in  which 
the  evidence  is  alleged  to  be  insufficient 
(Clifford  V.  Allman,  84  Cal.  528;  24  Pae. 
292) ;  and  errors  of  law  occurring  at  the 
trial  may  be  reviewed,  although  no  speci- 
fication of  the  particular  errors  of  law  on 
which  the  appellant  relies  is  contained  in 
the  bill.  Shadburne  v.  Daly,  76  Cal.  355; 
18  Pac.  403. 

Evidence  to  be  set  out  in  bill  of  excep- 
tions. In  prc|>aring  a  statement  or  bill 
of  exceptions  for  use  in  the  appellate 
court,  it  is  not  necessary  to  give  the  evi- 
dence in  full:  only  such  of  the  evidence  or 
other  matter  as  is  necessary  for  explana- 
tion should  be  incorporated;  the  exceptions 
should  be  presented  as  briefly  as  possible; 
and  all  redundant  matter  should  be  stricken 
out.  Crijic  v.  Unangst,  20  Cal.  App.  75; 
128  Pac.  345;  Vatcher  v.  Wilbur,  144  Cal. 
536;  78  Pac.  14.  All  the  evidence  need 
not  be  given,  where  the  question  presented 
is  solely  as  to  the  sufficiency  of  conflicting 


evidence  to  sustain  a  particular  finding:  it 
is  sufficient  if  there  is  enough  evidence,  on 
each  side  of  the  question,  to  show  a  sub- 
stantial conflict,  since  the  decision  of  the 
court  will  not  be  interfered  with.  Vatcher 
V.  Wilbur,  144  Cal.  536;  78  Pac.  14.  The 
mere  rescript  of  the  notes  of  the  short- 
hand reporter,  in  which  the  evidence  is 
detailed  by  question  and  answer,  with  ob- 
jections taken  and  rulings  thereon,  is  in- 
sufficient. Caldwell  v.  Parks,  50  Cal.  502; 
Santa  Ana  v.  Ballard,  126  Cal.  677;  59  Pae. 
133.  The  requirement  that  the  petitioner 
shall  prepare  a  proper  statement  or  bill  of 
exceptions,  so  as  to  sustain  his  contention 
of  the  insufficiency  of  the  evidence,  does 
not  mean  that  the  statement  or  bill  of 
exceptions  shall  embody  all  the  notes  of 
the  reporter.  Vatcher  v.  Wilbur,  144  Cal. 
536;  78  Pac.  14.  A  bill  of  exceptions, 
merely  setting  forth  other  findings,  and 
stating  that  such  facts  were  established 
by  the  evidence,  is  not  a  statement  of  so 
much  of  the  evidence  as  may  be  necessary 
to  explain  the  objection  that  a  portion  of 
one  finding  is  not  sustained  by  the  evi- 
dence, it  not  being  a  statement  of  evidence 
at  all,  but  a  general  conclusion  that  cer- 
tain facts  were  established  by  the  evidence. 
Cox  V.  McLaughlin,  2  Cal.  Unrep.  858;  18 
Pac.  111.  It  will  be  presumed,  on  appeal, 
that  all  the  evidence  tending  to  explain 
an  objection  taken  at  the  trial  is  inserted 
in  the  bill  of  exceptions;  and  where,  from 
the  evidence,  it  appears  that  the  court 
erred  in  ruling  as  to  a  material  matter,  a 
reversal  will  be  granted  (Wilson  v.  Atkin- 
son, 68  Cal.  590;  10  Pac.  203;  Couson  v. 
Wilson,  2  Cal.  App.  181;  83  Pac.  262);  and 
if  there  is  any  evidence  which  will  explain 
or  overcome  that  set  forth  in  the  bill,  it 
is  the  duty  of  the  respondent  to  cause 
it  to  be  incorporated  therein.  Couson  v. 
Wilson,  2  Cal.  App.  181;  83  Pac.  262. 
The  evidence  need  not  accompany  the 
objections  to  the  conclusions  of  fact  from 
other  facts  specifically  found.  Walkerley 
V.  Greene,  104  Cal.  208;  37  Pac.  890.  The 
evidence  or  other  matter  which  may  be 
stated  in  the  bill  of  exceptions  for  the 
purpose  of  explaining  the  exception  taken, 
does  not  include  exceptions  taken  by  the 
party  proposing  the  amendment,  or  any 
evidence  or  other  matter  necessary  to  ex- 
plain the  same.  Application  of  Gates,  90 
Cal.  257;  27  Pac.  195. 

Bill  of  exceptions  may  include  what. 
The  party  who  moves  for  a  new  trial  must 
prepare  the  bill  of  exceptions,  statement, 
affidavits,  or  whatever  is  relied  on  as  the 
ground  for  his  motion,  and  the  record,  as 
thus  presented,  must  contain  specifications 
for  the  purpose  of  furnishing  the  apjiellate 
court  with  the  grounds  upon  which  he  ex- 
pects to  rclv  should  his  motion  be  denied. 
Bvxbee  v.  Dewey,  128  Cal.  322;  60  Pac. 
847;  Shadburne  v.  Daly,  76  Cal.  355;  18 
Pac.  403.     Where  an  exception  is  taken  on 


707 


BILL   MAY  INCLUDE   WHAT — REFERENCE — SUFFICIENCY. 


§048 


the  grounrl  of  error  of  law,  in  nn  action 
tried  by  the  eourt  without  a  jury,  it  is 
proper  to  ask  the  court  to  decide  a  prin- 
ciple of  law  considered  applicable  by 
counsel,  nnd  on  a  refusal,  to  have  it  noted 
in  the  bill  of  exceptions.  Estate  of  Pac;e, 
57  Cal.  238;  and  see  Griswold  v.  Sliarpe, 
2  Cal.  17;  Touch ard  v.  Crow.  20  Cal.  150; 
SI  Am.  Dec.  108.  The  judj^'mcnt  roll  on 
the  admission  of  a  will  to  probate,  being  a 
matter  of  record,  should  not  be  included 
in  the  bill  of  exceptions  (Estate  of  Rob- 
inson, ]0(i  Cal.  493;  39  Pac.  862);  nor 
sliould  the  notice  of  intention  to  move  for 
a  new  trial  be  included  (Kahn  v.  Wilson, 
120  Cal.  C43;  53  Pac.  24;  and  see  Pico  v. 
Cohn.  78  Cal.  3S1;  20  Pac.  706;  Southern 
Pacific  R.  R.  Co.  v.  Superior  Court,  105 
Cal.  84;  38  Pac.  627);  nor  an  order  refus- 
ing a  new  trial  (Mendocino  County  v. 
Peters,  2  Cal.  App.  24;  82  Pac.  1122); 
but  an  original  complaint,  necessary  to 
explain  an  exception  to  an  order  of  the 
court,  may  be  included.  Redington  v. 
Cornwell,  90  Cal.  49;  27  Pac.  40.  Affidavits, 
not  read  at  the  trial  for  any  purpose,  and 
such  parts  thereof  as  were  not  so  read, 
nor  necessary  to  explain  the  parts  which 
were  read,  are  redundant  and  useless  mat- 
ter, and  their  insertion  is  not  reversible 
error,  as  they  will  be  disregarded  on  ap- 
peal; and  this  is  the  only  remedy  for  the 
error,  except  that  the  appellate  court  may 
tax  the  costs  of  the  redundant  matter  to 
the  partv  causing  the  insertion.  Wolff  v. 
Wolff,  102  Cal.  433;  36  Pac.  707,  1037. 

Inclusion  of  papers  by  reference.  Ref- 
erence to  documents,  in  the  engrossed 
statement,  by  the  direction,  "Here  insert," 
is  countenanced  by  this  section.  Lake 
Shore  Cattle  Co.  v.  Modoc  Land  etc.  Co., 
127  Cal.  37;  59  Pac.  206.  Reference,  in 
the  proposed  statement,  to  a  document  or 
record  by  means  of  the  direction,  "Here 
insert,"  is  a  sufficient  notification  to  the 
adverse  party  that  such  document  or  rec- 
ord is  to  become  a  part  of  the  statement, 
though  such  reference  would  not  be  suffi- 
cient in  the  engrossed  statement.  Reclama- 
tion District  vT  Hamilton,  112  Cal.  603;  44 
Pac.  1074.  A  reference,  in  a  bill  of  ex- 
ceptions, to  certain  documents  as  marked, 
and  thereto  attached  and  therewith  filed, 
is  not  a  sufiieieut  reference  to  exhibits  so 
marked  in  a  separate  bill  of  exceptions 
separately  filed  and  not  attached.  Estate 
of  Carpenter,  127  Cal.  582;  60  Pac.  162. 

Papers  must  be  identified.  The  papers 
and  eviilcnce  used  at  the  hearing  of  a  mo- 
tion to  set  aside  the  service  of  summons 
by  publication  must  be  authenticated  by 
setting  them  forth  in  and  making  them 
a  part  of  the  bill:  a  mere  reference,  in 
the  bill,  to  the  different  papers  and  docu- 
ments, is  not  sufficient,  where  they  are 
authenticated    merely   by    stipulation    of 


counsel.  San  Diego  Sav.  Bank  v.  Goodscll, 
137  Cal.  420;  70  Pac.  299. 

Skeleton  bill.  The  practice  of  proposing 
a  bill  in  skeleton  form  does  not  find  any 
support  in  the  code,  but  is  one  created  by 
the  jirofession,  and  is  fiossible,  merely  be- 
cause no  absolute  limit  is  placed  on  the 
time  within  which  the  .juilge  can  certify 
the  l)ill;  but,  recognizing  the  practice,  the 
certification  of  a  bill  is  not  delaye<l  by 
reason  of  its  engrossment  before  it  is  pre- 
sented, where  the  settlement  thereof  does 
not  require  a  new  engrossment.  Houghton 
v.  Superior  Court,  128  Cal.  352;  GO  Pac. 
972. 

Sufficiency  of  exception  to  charge.  Ex- 
ceptions to  an  oral  charge  must  bo  s[jecific, 
and  point  out  the  parti«-ular  portion  of 
the  charge  claimed  to  be  objectionable, 
though  counsel  subsequently  claim  that 
all  the  propositions  laid  down  in  the  charge 
are  objectionable.  Rider  v.  Edgar,  54  Cal. 
127;  Sill  V.  Reese,  47  Cal.  294.  An  ex- 
ception to  a  charge,  in  the  clause,  "to 
which  charge,  and  the  whole  thereof,  the 
defendant  then  and  there  duly  excejjted," 
is  insufiieient.  as  not  sufficiently  specifying 
the  portion  thereof  assailed.  Love  v.  An- 
chor Raisin  etc.  Co.,  5  Cal.  Unrep.  425; 
45  Pac.  1044;  Roffers  v.  Mahoney,  62  CaL 
611;  Frost  v.  Grizzly  Bluff  Creamer}'  Co., 
102  C.il.  525:  36  Pac.  929. 

Terms  defined.  The  "decision,"  as  that 
word  is  used  in  this  section,  is  the  state- 
ment of  the  facts  found,  and  conclu- 
sions of  law  therefrom,  mentioned  in  §  633, 
ante.  Clifford  v.  Allman,  84  Cal.  528;  24 
Pac.  292;  Coveny  v.  Hale,  49  Cal.  552.  A 
judgment  of  dismissal,  taken  after  the  lapse 
of  sixty  days,  without  findings,  and  with- 
out an  opportunity  to  the  appellant  to  pre- 
pare a  record,  is  not  an  "exception  to  the 
decision  or  verdict,"  within  the  meaning 
of  §  939,  post,  and  the  judgment  may  be 
reviewed  upon  the  evidence.  Rickey  Land 
etc.  Co.  V.  Glader,  153  Cal.  179;  94  Pac.  76S. 

CODE  COMIAISSIONERS'  NOTE.  1.  Form  of 
exception.  See  Bubd.  1  of  note  to  §  G4G  of  this 
code. 

2.  Otject  of  the  bill  of  exceptions.  Tarsoiis 
V.  Davis,  3  Cal.  41!."). 

3.  What  it  should  contain.  Xot  matter  of  rec- 
ord. Johnson  v.  Sepulbeda,  5  Cal.  151.  But 
must  contiiiu  docuniouis  and  aflidavit.s,  to  be  re- 
viewed by  the  appellate  court.  G.Ttes  v.  Buck- 
ingham, 4  Cal.  286.  And  affidavits  as  to  the 
incompetency  of  a  juror.  People  v.  Stonecifer,  6 
Cal.  411. 

4.  Reserving  questions  of  law.  Where  tho 
court  trios  the  cause  without  a  jury,  the  mode 
of  reserviiiK  questions  of  law  is  to  ask  the  court 
to  decide  them,  and  note  the  dfcision  in  a  bill  of 
exceptions.  Griswold  v.  Sharpe,  2  Cal.  IT.  Where 
plaintiffs  have  excepted  to  the  ruling  of  the  court 
excluding  certain  evidence,  lake  a  nonsuit  with 
leave  to  move  to  set  aside,  they  do  not  waive  any 
of  their  rifrhts  as  to  the  exceptions.  Natoma 
Wafer   etc.    Co.   v.   Clarkin.    14    Cil.    .-4'i. 

5.  Exceptions  to  be  attached  to  Judgment  roll. 
More  V.  Del  Valle,  28  Cal.  17U. 


§§  649,  650 


EXCEPTIONS. 


708 


§  649.  Bill  of  exceptions,  when  to  be  presented,  etc.  A  bill  containing 
the  exception  to  any  decision  may  be  presented  to  the  court  or  judge,  for 
settlement  at  any  time  after  the  decision  is  made,  but  the  same  must  be 
presented  within  ten  days  after  written  notice  of  making  such  decision, 
and  after  having  been  settled  must  be  signed  by  the  judge  and  filed  with 
the  clerk.  When  the  decision  excepted  to  is  made  by  a  tribunal  other  than 
a  court,  or  by  a  judicial  officer,  the  bill  of  exceptions  must  be  presented  to 
and  settled  and  signed  bv  such  tribunal  or  officer. 


Legislation  §  649.  1.  Enacted  March  11,  1873; 
based  on  the  first  two  sentences  of  Practice  Act, 
§  189,  as  amended  by  Stats.  1863,  p.  360,  which 
read:  "The  point  of  the  exception  shall  be  par- 
ticularly stated,  and  may  be  delivered  in  writing 
to  the  judge;  or,  if  the  party  require,  it  shall  be 
written  down  by  the  clerk.  When  delivered  in 
writing,  or  written  down  by  the  clerk,  it  shall  be 
made  conformable  to  the  truth,  or  be  at  the  time 
corrected  until  it  is  so  made  conformable."  When 
enacted  in  1872,  §  649  read:  "A  bill  containing 
the  exception  to  any  ruling  may  be  presented  to 
the  judge  at  the  time  the  ruling  is  made.  It  must 
be  conformable  to  the  truth,  or  be  at  the  time 
corrected  until  it  is  so,  and  signed  by  the  judge, 
and  filed  with  the  clerk." 

2.  Amended  by  Code  Amdts.  1S75-T6,  p.  92, 
the  changes  therefrom  being  noted  infra. 

3.  Amendment  by  Stats.  1901,  p.  147;  uncon- 
stitutional.   See  note  ante,   §  .5. 

4.  Amended  by  Stats.  1907,  p.  715,  in  first 
sentence,  substituting  (1)  "within  ten  days  after" 
for  "at  the  time,"  and  (2)  "must"  for  "shall," 
in  both  sentences;  the  first  sentence  then  read- 
ing, "A  bill  containing  the  exception  to  any  de- 
cision may  be  presented  to  the  court  or  judge  for 
settlement  within  ten  days  after  the  decision  is 
made,  and  after  having  been  settled,  must  be 
signed  by  the  judge  and  filed  with,  the  clerk." 

5.  Amended  by  Stats.  1911,  p.  402,  recasting 
the  first  sentence. 

Time    of    presentation    and    settlement. 

Under  §§  188,  189,  of  the  Practice  Act,  a 
bill  of  exceptions,  if  not  reduced  to  writ- 
ing and  settled  by  the  judge  immediately 
upon  the  taking  of  the  exception,  could  be 
brought  before  the  court  for  review  only 
by  a  statement  settled  as  provided  in  §  195 
of  the  Practice  Act.  Central  Pacific  E.  R. 
Co.  V.  Pearson,  35  Cal.  247.  This  section, 
prior  to  the  amendment  of  1907,  was,  in 
terms,  permissive;  and  the  privilege  of  pre- 
senting the  bill  of  exceptions  for  settle- 
ment at  the  time  of  the  ruling  was  not 
necessarily  exclusive  (Flagg  v.  Puter- 
baugh,  98  Cal.  134;  32  Pac.  863);  and  did 
not  fix  any  specific  time  for  presenting  the 
bill  of  exceptions;  and  if  not  done  imme- 
diately, the  right  was  not  taken  away. 
Tregambo  v.  Comanche  etc.  Mining  Co.,  57 
Cal.  501.  Where  the  case  falls  under  this 
section,  the  bill  should  be  allowed  and  set- 
tled, if  presented  within  a  reasonable 
time:    the    analogy    furnished    by    §§  650, 


651,  post,  should  determine  what  is  a  rea- 
sonable time  (Flagg  v.  Puterbaugh,  98  Cal. 
134;  32  Pac.  863;  Smith  v.  Jordan,  122 
Cal.  68;  54  Pac.  368);  hence,  a  proposed 
bill,  not  prepared  and  served  until  twenty 
days  after  the  order  was  made,  is  too  late. 
Smith  V.  Jordan,  122  Cal.  68;  54  Pac.  368. 
A  bill  of  exceptions,  dated  more  than  four 
months  after  a  ruling  striking  out  a  por- 
tion of  the  answer  was  made,  should  not 
be  allowed.  Levee  District  v.  Huber,  57 
Cal.  41.  This  section  prescribes  no  time 
within  which  the  exception  shall  be  set- 
tled, but  §  650,  post,  fixes  the  time  for  pre- 
sentation of  the  draft  of  the  bill.  McCarty 
V.  Wilson,  2  Cal.  App.  154;  83  Pac.  170. 
Where  the  certificate  of  the  judge  recited 
that  the  bill  was  "duly  presented  within 
the  time  allowed  by  law,"  it  will  be  as- 
sumed that  it  was  presented  when  the  de- 
cision was  made;  and  if  the  court  actually 
settled  it  at  a  date  later  than  that  of  its 
presentation,  it  cannot  affect  the  right  of 
the  appellant  to  use  the  bill.  Estate  of 
Gordon,  142  Cal.  125;  75  Pac.  672.  This 
section  contemplates  the  settlement  of  a 
bill  of  exceptions  at  the  time  the  decision 
is  made,  during  the  trial,  and  in  the  pres- 
ence of  counsel  for  both  parties,  and  does 
not  contemplate  a  settlement  of  the  bill 
after  the  adjournment  of  the  court,  with- 
out any  notice  to  adverse  counsel.  Estate 
of  Scott,  128  Cal.  578;  61  Pac.  98;  Estate 
of  Carpenter,  127  Cal.  582;  60  Pac.  162. 

Signing  and  filing.  Exceptions  taken 
during  the  progress  of  the  trial  should  be 
written  down,  settled,  and  signed  by  the 
judge,  filed  in  the  case,  and  afterwards  at- 
tached to  the  judgment  roll.  More  v.  Del 
Valle,  28  Cal.  170;  Kavanagh  v.  Maus,  28 
Cal.  261. 

Consent  of  parties  as  conferring  jurisdiction 
on  court  to  sign  bill  of  exceptions  after  time 
fixed  by  statute.    See  note  13  Ann.  Cas.  1115. 

Effect  on  bill  of  exceptions  of  neglect  of  judge 
to  sign  same  within  time  required  by  law.  See 
note  Ann.  Cas.  1918A,  914. 


§  650.     Bill  of  exceptions.     Presentment  of  bill.     Duty  of  judge  to  strike 

out  useless  matter.  When  a  party  desires  to  have  exceptions  taken  at  a 
trial  settled  in  a  bill  of  exceptions,  he  may,  at  any  time  thereafter,  and 
within  ten  days  after  the  entry  of  judgment,  if  the  action  was  tried  with 
a  jury,  or  after  receiving  notice  of  the  entry  of  judgment,  if  the  action 
was  tried  without  a  jury,  or  if  proceedings  on  motion  for  a  new  trial  be 
pending,  within  ten  days  after  notice  of  decision  denying  said  motion,  or 
other  determination  thereof,  or  such  further  time  as  the  court  in  which  the 
action  is  pending,  or  a  judge  thereof,  may  allow,  prepare  the  draft  of  a 


709  PRESENTMENT  OF  BILL — STRIKING  OUT — NOTICE.  §  650 

bill,  and  serve  the  same,  or  a  copy  thereof,  upon  the  adverse  party.  Such 
draft  must  contain  all  the  exceptions  and  procoodin«;s  taken  upon  which 
the  party  relies,  and  may  contain  all  matters  reviewable  on  the  same  appeal 
whether  occurring  at  the  trial  or  on  motion  for  a  new  trial.  It  may  also 
contain  a  statement  of  any  matters  occurring  upon  the  trial,  in  the  presence 
of  the  court,  showing  any  of  the  matters  mentioned  in  subdivisions  one  and 
two  of  section  six  hundred  and  fifty-seven  of  this  code.  Within  ten  days 
after  such  service  the  adverse  party  may  propose  amendments  thereto,  and 
serve  the  same  or  a  copy  thereof,  upon  the  other  party.  The  proposed  bill 
and  amendments  must,  within  ten  days  thereafter  be  presented  by  the  party 
seeking  the  settlement  of  the  bill,  to  the  judge  who  tried  or  heard  the  case, 
upon  five  days'  notice  to  the  adverse  party,  or  be  delivered  to  the  clerk  of 
the  court  for  the  judge.  When  received  by  the  clerk  he  must  immediately 
deliver  them  to  the  judge,  if  he  is  in  the  county ;  if  he  is  absent  from  the 
countj'',  and  either  party  desires  the  paper  to  be  forwarded  to  the  judge, 
the  clei'k  must,  upon  notice  in  writing  of  such  party,  immediately  forward 
them  by  mail,  or  other  safe  channel;  if  not  thus  forwarded  the  clerk  must 
deliver  them  to  the  judge  immediately  after  his  return  to  the  county. 
When  received  from  the  clerk,  the  judge  must  designate  the  time  at  which 
he  wall  settle  the  bill,  and  the  clerk  must  immediately  notify  the  parties 
of  such  designation.  At  the  time  designated  the  judge  must  settle  the  bill. 
The  bill  must  thereupon  be  engrossed  and  presented  to  the  judge  to  be 
certified,  by  the  party  presenting  it,  within  ten  days.  If  the  action  was 
tried  before  a  referee,  the  proposed  bill,  w'ith  the  amendments,  if  any,  must 
be  presented  to  such  referee  for  settlement  within  ten  days  after  service  of 
the  amendments,  upon  notice  of  five  days  to  the  adverse  party,  and  there- 
upon the  referee  must  settle  the  bill.  If  no  amendments  are  served  or  if 
served  are  allowed,  the  proposed  bill  may  be  presented,  with  the  amend- 
ments, if  any,  to  the  judge  or  referee,  for  settlement  without  notice  to  the 
adverse  party. 

It  is  the  duty  of  the  judge  or  referee,  in  settling  the  bill,  to  strike  out  of  it 
all  redundant  and  useless  matter  so  that  the  exceptions  and  proceedings  may 
be  presented  as  briefly  as  possible.  When  settled,  the  bill  must  be  signed  by 
the  judge  or  referee,  with  his  certificate  to  the  effect  that  the  same  is  allowed, 
and  must  then  be  filed  with  the  clerk. 

No  bill  of  exceptions,  notice  of  appeal,  or  notice  or  paper,  other  than 
amendments  to  the  pleadings  or  an  amended  pleading,  need  be  served  upon 
any  party  whose  default  has  been  duly  entered,  or  who  has  not  appeared 
in  the  action  or  proceeding. 

Further  time.    Ante,  §  473;  post,  §  1054.  after  such  ruling  is  made,  and  within  thirty  days 

Bill  of  exceptions.  after  the  entry  of  judgment,  be  presented  to   the 

1.  New  trial.    Post.  §  659,  subd.  2.  judge   and  settled,   as  provided   in   the   preceding 

2.  Kequisites  of.    Ante,  §  648.  section." 

3.  In     criminal     causes.      See     Pen.  Code,              2.     Amended  by  Code  Amdts.  1873-74,  p.  313. 
§§  1171  at  seq  *"®  changes  therefrom  being  noted  infra. 

3.   Amendment   by    Stats.    1901,    p.    147;    un- 

Legislation  9  650.    1.  Enacted  March  11,  1872;  constitutional.     See  note  ante.  §  5. 

based  on  the  third  sentence  of  Practice  Act,  §  189,  4.    Amended   by    Stats.    1907,   p.    715,    (1)    in 

as  amended   by   Stats.    1863,   p.   360,   which  read:  first   sentence,  (a)    changing   "Where"  to  "When"  ; 

"Wbon  not  delivered  in  writing,  or  written  down  (b)   adding  "at  any  time  thereafter,  and,"   before 

as   above,    it   may   be   entered   in   the  judge's  min-  "within  ten  days"  ;    (c)  changing  "were"   to  "was" 

utes,  and  afterwards  settled  in  a  statement  of  the  before    "tried,"    in   both  places;    (d)    substituting 

case,   as  provided   in   this   act."      See   ante,   Legis-  "by   copy"    for   "or   a   copy";    (2)    in   second   sen- 

lation     §     649.       When    enacted    in    1872,     §    650  fence,    inserting   "and   proceedings"   after   "excep- 

read:    "If  a   bill   is   not   presented   at   the   time   of  tions";     (3)    adding    the    sentence    beginning    "It 

the    ruling,    a    bill    containing    the    exceptions,    or  may    also    contain";     (4)     in    sentence    beginning 

any  of  them,  relating  to  any  ruling  had  up  to  the  "When    received    by,"     (a)    substituting    "is"    for 

time    of    the    entry    of    judgment,    may,    upon    one  "be,"    in    both    instances,    and    (b)    "desires"    for 

day's   notice   to    the    adverse   party,    at   any    time  "desire";     (5)     adding    the    sentence    beginning 


§650 


PROVISIONS  RELATING   TO  TRIALS  IN   GENERAL. 


710 


"The  bill  must";  (6)  in  sentence  beginning  "If 
the  action,"  substituting  "must"  for  "shall"; 
(7)  in  sentence  beginning  "It  is  the  duty,"  add- 
ing "and  proceedings"  after  "exceptions";  (3) 
in  last  line,  substituting  "must"  for  "shall": 
the  code  commissioner  saying,  "The  changes  add 
the  words  'at  any  time  thereafter,  and'  before  the 
words  'within  ten  days,'  add  the  words  'and  pro- 
ceedings' after  'exceptions,'  and  also  add  the  wcrds 
"It  may  also  contain.  .  .  .'  These  amendments 
permit  the  bill  of  exceptions  as  to  any  matter  oc- 
curring at  the  trial  to  be  tendered  before  the 
entry  of  the  judgment,  and  to  contain,  when 
presented,  a  statement  of  any  matter  occurring 
at  the  trial  in  the  presence  of  the  court  men- 
tioned in  subds.  1  and  2  of  §  657.  A  provision 
is  also  added  providing  the  time  within  which 
the  settled  bill  must  be  engrossed,  and  for  its 
service  on  the  adverse  partv." 

5.  Amended  by  Stats.  1909,  p.  993,  (1)  in 
first  sentence,  substituting  "or  a  copy"  for  "by 
copy"  (a  restoration);  (2)  in  sentence  begin- 
ning "When  received,"  substituting  "paper"  for 
"papers,"  after  "desires  the";  (3)  in  sentence 
beginning  "The  bill,"  after  "ten  days,"  striking 
out  "and  upon  being  certified  must  within  five 
days  thereafter  be  served  upon  the  adverse 
party";  (4)  making  a  new  paragraph  of  the 
then  last  two  sentences,  beginning  "It  is  the 
duty." 

6.  Amended  by  Stats.  1911,  p.  400,  adding  the 
final  paragraph  (compare  change  therein  in  1915). 

7.  Amended  by  Stats.  1915,  p.  207.  (1)  in 
first  sentence,  inserting  "or  if  proceedings  on 
motion  for  a  new  trial  be  pending,  within  ten 
days  after  notice  of  decision  denying  said  mo- 
tion, or  other  determination  thereof";  (2)  in 
second  sentence,  inserting  "and  may  contain  all 
matters  reviewable  on  the  same  appeal  whether 
occurring  at  the  trial  or  on  motion  for  a  new 
trial";  (3)  in  final  paragraph,  striking  out 
"statement  on  motion  for  a  new  trial,"  after 
"No  bill  of  exceptions." 

Construction  of  section.  This  section 
provides  liow  all  papers,  proceedings,  and 
exceptions,  not  otherwise  part  of  the  rec- 
ord, may  be  made  such  by  bill  of  excep- 
tions. Herrlich  v.  McDonald,  80  Cal.  472; 
22  Pac.  299.  It  is  applicable  where  the 
order  excepted  to  is  appealable,  as  well 
as  where  the  ruling  can  be  reviewed  only 
on  an  appeal  from  a  final  judgment.  Flagg 
V.  Puterbaugh,  98  Cal.  134;  32  Pac.  863. 
Under  the  Practice  Act,  an  order  made 
after  rendition  of  judgment,  unless  founded 
on  affidavits,  could  be  reviewed  only  by  a 
statement  on  appeal.  Caulfield  v.  Doe,  45 
Cal.  221.  This  section  applies  in  an  elec- 
tion contest.  McCarty  v.  Wilson,  2  Cal. 
App.  154;  83  Pac.  170.  Its  provisions,  so 
far  as  they  relate  to  the  service  of  notice, 
are  not  merely  directory.  Ford  v.  Braslan 
Seed  Growers  Co.,  10-  Cal.  App.  762;  103 
Pac.  946.  The  statute  must  be  followed 
closely  to  perfect  an  appeal,  but  no  more 
is  demanded.  Broaddus  v.  James,  13  Cal. 
App.  478;   110  Pac.   164. 

Exceptions  taken  when.  This  section 
does  not  refer  to  excej)tions  taken  after 
trial  and  judgment  (Sacramento  County  v. 
Central  Pacific  R.  R.  Co.,  61  Cal.  250):  it 
provides  for  the  settlement  of  a  bill  of  ex- 
ceptions based  on  errors  of  law  occurring 
at  the  trial,  which  may  be  done  after  en- 
try of  judgment  and  after  the  judgment 
roll  is  made  up  (Estate  of  Gordon,  142  Cal. 
125;  75  Pac.  672);  and  includes  exceptions 
taken  in  the  course  of  proceedings  before 


the  trial  is  commenced.  Tregambo  v.  Co- 
manche etc.  Mining  Co.,  57  Cal.  501. 

Draft  of  bill,  and  time  of  preparation 
and.  service.  Failure  to  prepare  tlie  bill 
of  exceptions  within  the  time  allowed,  or 
any  authorized  extension  thereof,  justifies 
a  refusal  to  settle  the  proposed  bill:  the 
right  to  have  it  settled  is  thereby  lost 
(Estate  of  Clary,  112  Cal.  292;  44  Pac. 
569);  and  a  bill  not  prepared  and  served 
within  the  time  allowed  cannot  be  consid- 
ered (Kelleher  v.  Creciat,  89  Cal.  38;  26 
Pac.  619) ;  neither  can  a  bill  of  exceptions 
to  an  order  dissolving  an  attachment,  not 
prepared  and  served  until  twenty  days 
after  the  order  was  made.  Smith  v.  -Jor- 
dan, 122  Cal.  68;  54  Pac.  368.  Where  the 
proposed  bill  and  the  amended  bill  were 
served,  and  no  objection  was  made  that 
they  were  not,  respectively,  in  time,  an 
objection  on  that  ground  will  be  disre- 
garded on  appeal,  though  not  made  within 
the  time  provided  by  law,  and  although  no 
order  was  made  extending  the  time.  Hun- 
garian Hill  etc.  Mining  Co.  v.  Moses,  58 
Cal.  168.  The  time  within  which  the  bill 
of  exceptions  to  an  order  making  a  family 
allowance  must  be  prepared  and  served  is 
prescribed  by  this  section.  Leach  v.  Pierce, 
93  Cal.  614;  29  Pac.  235.  This  section 
does  not  authorize  the  court  to  grant  an 
indefinite  extension  of  time  for  the  prepa- 
ration and  serving  of  the  draft:  it  is  to 
be  read  in  connection  with  the  restriction 
in  §  1054,  post,  on  amount  of  time  allowed 
by  court.  Cameron  v.  Areata  etc.  R.  R. 
Co.,  129  Cal.  279;  61  Pac.  955.  The  law 
allows  ten  days,  or  such  further  time,  not 
exceeding  thirty  days,  as  may  be  allowed 
bj^  the  court,  within  which  to  serve  a  pro- 
posed bill  of  exceptions.  Oppenheimer  v. 
Radke,  165  Cal.  220;  129  Pac.  798.  An 
order  extending  the  time  for  preparing  and 
serving  the  draft  of  the  bill  of  exceptions 
gives  the  defendant  the  time  specified,  in 
addition  to  the  ten  days  allowed  by  this 
section.  Cameron  v.  Areata  etc.  R.  R.  Co., 
129  Cal.  279;  61  Pac.  955.  An  order,  made 
after  the  expiration  of  the  statutory  period 
within  which  to  propose  a  bill  of  excep- 
tions, extending  the  time  for  such  proposal, 
is  ineffectual  and  void  TEstate  of  Clary, 
112  Cal.  292;  44  Pac.  569);  but  not  when 
the  extension  is  made  by  stipulation  of 
counsel.  Simpson  v.  Budd,  91  Cal.  4SS;  27 
Pac.  758.  The  pendency  of  a  motion  to 
amend  or  change  a  finding  does  not  operate 
to  extend  the  time  for  service  of  proposed 
bill  of  exceptions.  Hole  v.  Takekawa,  165 
Cal.  372;  132  Pac.  445. 

What  bill  should  contain.  An  exception 
to  the  ruling  on  motion  for  a  new  trial 
must  appear  in  the  stating  or  substantive 
part  of  the  bill  of  exceptions,  and  the  bill 
must  affirmatively  show  that  the  ruling  ac- 
tually took  place  at  the  trial  and  was 
excepted  to.  Craig  v.  Hesperia  Land  etc. 
Co.,  107  Cal.  675;  40  Pac.  1057;  Hanna  v. 


711 


CONTENTS,   ETC.,  OF  BILL — SERVICE — AMENDMENTS. 


§650 


De  Garmo,  140  Cal.  172;  73  Pac.  830.  A 
statement  on  motion  for  a  new  trial  and 
a  bill  of  exceptions  may  be  incorporatci 
in  the  same  paper.  Martin  v.  ISoutheru 
Pacific  Co.,  150  Cal.  124;  88  Pac.  701.  The 
mere  fact  that  the  exception  was  referred 
to  in  the  assignment  of  errors  relied  on 
is  not  sufTicient.  Craig  v.  Hesperia  Land 
€tc.  Co.,  107  Cal.  675;  40  Pac.  1057.  Spe- 
cifications in  a  bill,  that  the  conclusions 
of  law  embraced  in  the  findings  are  er- 
roneous, are  not  available  on  appeal  from 
an  order  denying  a  new  trial.  Mentoue 
Irrigation  Co.  v.  Redlands  Electric  Light 
etc.  Co.,  155  Cal.  323;  17  Ann.  Cas.  1222; 
22  L.  R.  A.  (N.  S.)  382;  100  Pac.  1082. 
The  fact  that  reference  was  made  to  the 
pleadings,  on  the  hearing  of  a  motion  for 
a  new  trial,  need  not  be  presented  by  a 
bill  of  exceptions  (Southern  Pacific  R.  R. 
Co.  V.  Superior  Court,  105  Cal.  84;  38  Pac. 
627);  nor  need  the  bill  contain  any  par- 
ticular errors  of  law  on  which  the  appel- 
lant will  rely  (Reay  v.  Butler,  69  Cal.  572; 
11  Pac.  463;  Shadburne  v.  Dalv,  76  Cal. 
355;  18  Pac.  403;  Hagman  v.  Williams,  88 
Cal.  146;  25  Pac.  1111;  Barfield  v.  South 
Side  Irrigation  Co.,  Ill  Cal.  118;  43  Pac. 
406;  Snell  v.  Payne,  115  Cal.  218;  46  Pac. 
1069;  Smith  v.  Smith,  119  Cal.  183;  48  Pac. 
730;  51  Pac.  183;  Harper  v.  Gordon,  128 
Cal.  489;  61  Pac.  84),  though  required  in 
a  statement  under  the  third  subdivision  of 
§  659,  post.  Martin  v.  Southern  Pacific  Co., 
150  Cal.  124;  88  Pac.  701.  The  specifica- 
tion of  such  errors  though  an  essential  part 
of  the  statement,  is  the  act  of  the  attor- 
ney, annexed  to  the  bill  after  the  trial 
(Braverman  v.  Fresno  Canal  etc.  Co.,  101 
Cal.  644;  36  Pac.  386);  and  the  statements 
of  fact  in  the  bill  are  made  only  to  explain 
the  exceptions  which  it  shows  were  taken 
(Estate  of  Carpenter,  127  Cal.  582;  60 
Pac.  162);  and  the  matters  to  which  the 
specification  of  errors  points  must  be 
found  in  the  substantive  portion  of  the 
bill;  hence,  exceptions  incorporated  in  an 
assignment  of  errors,  coupled  with  the 
statement  that  it  was  given  against  the  ob- 
jection of  the  appellant,  cannot  be  con- 
sidered. Braverman  v.  Fresno  Canal  etc. 
Co.,  101  Cal.  644;  36  Pac.  386;  and  see 
People  v.  Faulke,  96  Cal.  17;  30  Pac.  837. 
It  is  not  necessary  to  make  a  specification 
of  particular  issues  on  which  findings  were 
omitted.  Knoch  v.  Ilaizlip,  163  Cal.  146; 
124  Pac.  998.  Where  a  bill  of  exceptions 
is  necessary,  it  must  contain  a  statement 
of  the  facts  which  will  authorize  the  re- 
view of  the  action  of  the  court  below; 
hence,  an  order,  not  deemed  excepted  to, 
must  be  shown  by  the  bill  to  come  within 
the  statutory  exception  that  it  was  made 
in  the  absence  of  the  partv.  Lamet  v. 
Miller,  2  Cal.  Unrep.  679;  11  Pac.  744.  The 
draft  of  a  proposed  bill  must  contain  a 
prayer  or  request  that  it  be  allowed  or  cer- 
tified as  a  bill  of  exceptions.  Landers  v. 
Lawler,  84  Cal.  547;  24  Pac.  307. 


Bill  must  be  authenticated.  The  draft 
of  the  bill  of  exceptions  must  be  authenti- 
cated, either  by  the  signature  or  the  in- 
dorsement of  the  attorney,  or  of  the  party 
if  he  appear  in  i)erson.  Landers  v.  Lawler, 
84  Cal.  547;  24  Pac.  307.  An  unauthenti- 
cated  bill,  consisting  entirely  of  specifica- 
tions of  error,  will  not  be  considered. 
Houghton  V.  Trumbo,  103  Cal.  239;  37  Pac. 
152. 

Service  on  whom.  Upon  motion  for  a 
new  trial,  the  bill  of  exceptions  to  be  used 
must,  under  the  new  method  of  appeal, 
be  served  upon  all  adverse  parties.  Ford 
V.  Braslan  Seed  Growers  Co.,  lU  ("al.  App. 
762;  103  Pac.  946.  Persona  claiming  aa 
devisees  under  a  will,  who  oppose  an  ap- 
plication for  partial  distribution,  are  ad- 
verse parties,  within  the  meaning  of  this 
section,  and  must  be  served  with  a  draft 
of  the  bill  of  exce|)tions.  Estate  of  Young, 
149  Cal.  173;  85  Pac.  145.  Where  an  inter- 
locutory decree  has  become  final  by  affirm- 
ance, only  such  matters  can  be  reviewed 
on  appeal  from  the  final  decree  as  have 
intervened  subsequently  to  the  interlocu- 
tory decree;  and  a  bill  of  exceptions  upon 
such  appeal  need  only  be  served  upon  such 
))arties  as  might  be  affecteil  by  a  modifica- 
tion of  the  final  decree.  Gutierrez  v.  Heb- 
berd,  106  Cal.  167;  .■;9  Pac.  529,  935. 

Amendments  to  the  bill.  The  amend- 
ments which  may  be  proposed  to  the  draft 
of  a  bill  of  exceptions  relate  to  the  evi- 
dence or  other  matter  authorized  to  be 
stated  in  the  bill  to  explain  the  objection 
taken,  and  do  not  include  exceptions  taken 
by  the  party  proposing  the  amendments, 
nor  any  evidence  or  other  matter  necessary 
to  explain  the  same.  Application  of  Gates, 
90  Cal.  257;  27  Pac.  195.  An  amendment 
by  the  court,  after  an  appeal  taken,  in- 
serting particulars  of  the  insufficiency  of 
the  evidence,  is  proper,  where  the  appeal 
is  from  a  decision  made  before  the  bill  was 
settled.  Estate  of  Lamb,  95  Cal.  397;  30 
Pac.  568.  The  determination  of  the  judge 
who  tries  and  hears  the  case  is  final  as  to 
the  allowance  of  the  matter  by  way  of 
amendment  to  the  bill.  Application  of 
Gates,  90  Cal.  257;  27  Pac.  195.  A  bill 
authenticated  by  the  trial  court  cannot  be 
amended  on  ajipeal.  Mendocino  County  v. 
Peters,  2  Cal.  Ai)p.  24;  82  Pac.  1122;  Bonds 
V.  Hickman,  29  Cal.  461;  Boston  v.  Haynes, 
31  Cal.  107;  Satterlee  v.  Bliss,  36  Cal.  489; 
Bovd  V.  Burrel,  60  Cal.  280;  Warren  v. 
Hopkins,  110  Cal.  506;  42  Pac.  986.  It  is 
error  to  refuse  to  permit  an  amendment 
to  a  statement  embodying  the  reporter's 
notes,  by  condensing  it  to  the  narrative 
form,  or  in  auv  other  jiarticular  (Santa 
Ana  V.  Ballard,  "l26  CaL  677;  59  Pac.  133); 
and  the  fact  that  no  amendments  were  pro- 
posed to  the  draft  of  a  bill  proposed  by 
the  appellant  does  not  preclude  the  judge 
from  amending  the  bill  to  conform  to  the 
facts.  Hyde  v.  Boyle,  89  Cal.  590;  26  Pac. 
1092.     Where,  in   the   proposed  draft  of  a 


650 


EXCEPTIONS. 


712 


bill,  there  is  inserted  a  ruling,  deemed  by 
the  party  preparing  the  same  to  be  er- 
roneous, the  opposite  party  should  present, 
in  his  amendments,  any  matter  which 
would  obviate  the  error;  and  it  will  be 
assumed,  on  appeal,  that  the  judge,  in  set- 
tling the  bill,  has  caused  to  be  inserted 
therein  all  matter  which  is  relevant  to  or 
which  will  explain  his  ruling.  Bedan  v. 
Turney,  99  Cal.  649;  34  Pac.  442.  Where 
amendments  proposed  to  the  draft  of  a  bill 
of  exceptions  are  merely  attached  thereto, 
and  not  inserted  in  their  proper  place  in 
the  bill  as  engrossed,  the  bill  cannot  be 
considered  on  appeal.  Fritsch  v.  Stampfli, 
117  Cal.  441;  49  Pac.  559;  Marlow  v. 
Marsh,  9  Cal.  259;  Skillman  v.  Kilev,  10 
Cal.  300;  Baldwin  v.  Ferre,  23  Cal.  461; 
Kimball  v.  Semple,  31  Cal.  657. 

Service  of  amendments.  Where  the  at- 
torney who  proposes  a  bill  of  exceptions 
acknowledges,  by  letter,  the  receipt  of  pro- 
posed amendments,  served  by  mail,  this 
does  not  amount  to  personal  service,  so 
as  to  shorten  the  time  for  the  doing  of  an 
act  as  indicated  in  §  1013,  post.  Prefumo 
V.  Eussell,  148  Cal.  451;  83  Pac.  810. 

Notice  of  presentation  of  bill  and  de- 
livery for  settlement.  The  delivery  of  a 
proposed  statement  and  amendments  to  the 
judge,  without  notice  of  the  day  when 
such  statemeiit  will  be  presented  for  set- 
tlement, is  insufficient.  Estate  of  Kruger, 
130  Cal.  621;  63  Pac.  31.  Failure  to  give 
the  five  days'  notice  of  the  presentment  of 
a  proposed  bill  to  the  judge,  until  after 
the  expiration  of  the  ten  days  in  which 
it  may  be  presented,  renders  the  subse- 
quent notice  too  late,  and  a  settlement  of 
the  statement  thereafter  is  erroneous. 
Witter  V.  Andrews,  122  Cal.  1;  54  Pac.  276. 
The  designation  of  a  time  for  settlement, 
in  open  court,  both  parties  being  present, 
is  sufficient  Horton  v.  Jack,  115  Cal.  29; 
46  Pac.  920.  Written  notice  of  the  presen- 
tation of  the  proposed  bill  to  the  court 
for  settlement,  being  for  the  benefit  of  the 
adverse  party,  may  be  waived  by  him. 
Hicks  V.  Masten,  10"^1  Cal.  651;  36  Pac.  130. 
Objection  to  a  defective  notice  of  settle- 
ment, which  failed  to  specify  that  the  pro- 
posed amendments  would  be  presented  to 
the  judge  with  the  bill,  is  waived,  if  the 
bill  and  amendments  were  presented  in  the 
presence  of  both  parties  at  the  time  speci- 
fied, and  the  hearing  was  postponed  from 
time  to  time  by  consent,  and  without  ob- 
jection urged  prior  to  the  final  hearing. 
O'Brien  v.  O'Brien,  124  Cal.  122;  57  Pac. 
225.  Where  the  judge  settles  the  bill  in 
the  presence  of  the  attorneys  for  both  par- 
ties, without  fixing  a  time  for  settlement, 
or  giving  previous  notice  thereof,  and  no 
objection  was  made  at  the  time,  the  bill 
is  not  invalidated.  Horton  v.  Jack,  115 
Cal.  29;  46  Pac.  920.  No  notice  of  the 
settlement  of  a  bill  is  required,  where  there 
is  no  contest  in  reference  thereto.    Broad- 


dus  V.  James,  13  Cal.  App.  478;  110  Pac. 
164.  Under  this  section  and  the  third  sub- 
division of  §  659,  post,  a  party  moving  for 
a  new  trial,  who  has  presented  his  proposed 
statement  and  amendments  thereto  to  the 
clerk  of  the  court  for  delivery  to  the  judge 
for  settlement,  is  not  required  to  give  the 
adverse  party  the  five  days'  notice  of  de- 
livery required  when  such  papers  are  pre- 
sented directly  to  the  judge.  Curtin  v. 
Ingle,  155  Cal.  53;  99  Pac.  480.  Notice  to 
the  adverse  party,  at  the  time  of  the  de- 
livery of  the  bill  to  the  clerk,  of  intention 
to  present  the  statement  and  amendments 
to  the  judge,  is  not  required.  Mellor  v. 
Crouch,  76  Cal.  594;  18  Pac.  685.  If  the 
amendments  are  allowed,  the  bill  and  the 
amendments  may  be  presented  to  the  judge 
or  the  referee,  without  notice,  within  a 
reasonable  time.  Gay  v.  Torrance,  143  Cal. 
14;  76  Pac.  717;  and  see  Pendergrass  v. 
Cross,  73  Cal.  475;  15  Pac.  63;  Houghton 
V.  Superior  Court,  128  Cal.  352;  60  Pac. 
972;  Black  v.  Hilliker,  130  Cal.  190;  62 
Pac.  481. 

Presentation  and  settlement  of  bill. 
Bills  of  exceptions  to  any  decision,  when- 
ever made,  may  be  presented  and  settled 
as  provided  in  this  section.  Tregambo  v. 
Comanche  etc.  Mining  Co.,  57  Cal.  501. 
Leaving  the  engrossed  bill  with  the  clerk, 
during  the  absence  of  the  judge,  without 
even  a  request  to  present  it  to  him  for  his 
signature,  is  insufficient:  it  is  not  the  duty 
of  the  clerk  to  deliver  the  engrossed  bill 
to  the  judge  for  his  signature.  Miller  v. 
American  Central  Ins.  Co.,  2  Cal.  App.  271; 
83  Pac.  289.  An  engrossed  bill,  not  signed 
or  settled,  cannot  be  considered  on  appeal 
(Pereira  v.  City  Sav.  Bank,  128  Cal.  45; 
60  Pac.  524) ;  and  a  bill  of  exceptions,  ap- 
pearing in  the  transcript,  will  be  stricken 
out,  where  there  is  no  showing  that  it  was 
either  settled  or  allowed  by  the  court. 
Keller  v.  Lewis,  56  Cal.  466.  When  the 
judge  settles  the  bill  or  statement,  the 
record  is  made  up.  Henry  v.  Merguire,  106 
Cal.  142;  39  Pac.  599.  "The  time  for  the 
filing  of  a  transcript  on  appeal  does  not 
commence  to  run  while  there  is  a  proceed- 
ing pending  in  the  lower  court  for  the  set- 
tlement of  a  bill  of  exceptions  on  appeal 
from  the  judgment.  Dernham  v.  Bagley, 
151  Cal.  216;  90  Pac.  543. 

Time  for  presentation  and  settlemsnt. 
The  time  for  the  settlement  and  presenta- 
tion of  all  bills  of  exceptions  is  fixed  by 
this  section.  Tregambo  v.  Comanche  etc. 
Mining  Co.,  57  Cal.  501.  Failure  to  com- 
ply with  the  requirement  that  the  pro- 
posed bill  and  amendments  must,  within 
ten  days  after  service  of  the  proposed 
amendments,  be  presented  for  settlement 
to  the  judge  who  tried  or  heard  the  case, 
■  deprives  the  party  of  his  right  to  have  the 
bill  settled,  unless  he  is  relieved  from  the 
effect  of  such  failure  by  the  trial  court, 
under  §  473,  ante,  on  account  of  mistake, 


713 


TIME   FOR    PRESENTATION,    ETC. — SETTLEMENT — REDUNDANCY. 


§650 


inadvertence,  surprise,  or  excusable  ne- 
glect; but  no  bill  of  exceptions  can  be  maile 
effectual  for  any  puri)ose  after  the  ex- 
piration of  the  statutory  perioil  of  six 
months.  Moultrie  v.  Tarpio,  14  7  Cal.  376; 
81  Pac.  1112.  A  bill  of  excei)tions  is  not 
required  to  be  presented  at  the  time  of 
the  refusal  of  the  court  to  ojien  a  default. 
TreLiambo  v.  Comanche  etc.  Mining  Co.,  57 
Cal.  501.  Where  the  trial  court  is  in  doubt 
as  to  a  party's  right  to  have  a  bill  or 
statement  settled,  because  not  presented  in 
time,  the  better  jiractice  is  for  it  to  sign 
the  bill  or  statement,  subject  to  objections 
thereto,  the  evidence  in  support  of  which 
should  be  incorporated  in  the  bill.  Calk- 
ins V.  Monroe,  17  Cal.  App.  324;  119  Pac. 
680.  Wliere  the  original  proposed  bill  was 
signed  by  the  attorneys,  and  the  opposing 
counsel  were  notified  that  it  was  proposed 
as  a  bill  of  exceptions,  and  the  judge  cer- 
tifies that  he  was  asked  to  settle  and  cer- 
tify it,  and  that  he  refused  simply  because 
it  was  not  in  time,  an  objection  that  the 
judge  was  not  asked  to  settle  and  certify 
the  bill  cannot  be  sustained.  Flagg  v. 
Puterbaugh,  101  Cal.  583;  36  Pac.  95.  Fail- 
,  ure  to  settle  the  bill  of  exceptions  within 
the  time  specified  by  law  authorizes  the 
dismissal  of  the  appeal,  where  there  is  also 
an  unexcused  failure  to  file  the  transcript 
on  appeal  within  the  time  prescribed  by 
the  rules  of  the  ajipellate  court.  Smith  v. 
Solomon,  84  Cal.  5:';7;  24  Pac.  2S6.  The 
service  of  a  copy  of  the  findings  and  judg- 
ment on  the  attorneys  of  the  losing  party, 
after  entry  of  the  judgment,  is  sufficient 
notice  of  the  entry  of  judgment  so  as  to 
require  the  bill  of  exceptions  to  be  settled 
within  ten  davs  thereafter.  Kelleher  v. 
Creciat,  89  Cab  38;  26  Pac.  619.  A  judg- 
ment rendered  by  the  trial  court  according 
to  the  directions  of  the  appellate  court,  is 
the  final  judgment  in  the  case;  hence,  the 
losing  party  has  ten  days  after  the  entry 
of  such  judgment  in  which  to  have  excep- 
tions taken  at  the  trial  settled.  Klauber 
V.  San  Diego  Street  Car  Co.,  98  Cal.  105; 
32  Pac.   876. 

Extension  of  time.  The  bill  of  excep- 
tions need  not  be  presented  at  the  time 
of  the  rulintr,  but  it  may  be  settled  at 
any  time  within  the  limit  prescribed  by 
this  section,  and  within  such  further  time 
as  the  court  may  grant  by  an  order  maile 
before  the  exjnration  of  such  time.  Tre- 
gambo  V.  Comanche  etc.  Mining  Co.,  57 
Cal.  501;  and  see  Berry  v.  San  Francisco 
etc.  R.  R.  Co.,  50  Cal.  435;  Higgins  v. 
Mahoney,  50  Cal.  444.  The  trial  court 
may,  by  order,  relieve  a  party  from  the 
failure  to  deliver  a  proposed  bill  and  pro- 
posed amendments  thereto  to  the  clerk  for 
the  judge,  within  the  time  required  by 
this  section,  where  they  were  mailed  to 
the  clerk  in  due  time,  but  were  lost  in 
transmission.  Long  v.  Long,  162  Cal.  427; 
122  Pac.  1077. 


Judge  who  heard  proceedings,  authorized 
to  settle.  The  bill  of  exceptions  should 
be  presented  to  the  judge  who  made  the 
ruling,  either  at  the  time  of  the  ruling 
or  after  judgment;  and  where  the  ruling 
was  made  by  one  judge,  and  the  trial  was 
hail  before  another,  two  or  more  bills  may 
be  settled  and  properly  presented  for  con- 
sideration on  appeal.  Turner  v.  Hearst,  115 
Cal.  394;  47  Pac.  129;  and  see  Cummings 
V.  Conlan.  66  Cal.  403;  5  Pac.  796,  903. 
A  bill  signed  by  the  judge  who  heard  the 
motion  for  a  new  trial,  and  not  by  the 
judge  who  tried  the  case,  cannot  be  con- 
sidered. Pereira  v.  City  Sav.  Bank,  128 
Cal.  45;  60  Pac.  524.  The  settlement  of 
a  bill  before  a  judge,  other  than  the  one 
before  whom  the  proceedings  were  heard, 
is  impro|)er,  where  the  bill  was  not  one  to 
be  used  on  the  motion  for  a  new  trial,  and 
the  former  judge  was  not  dead  nor  had 
refused  to  settle  it.  Estate  of  Carpenter, 
127  Cal.  582;  60  Pac.  162. 

Redundant  and  useless  matter  in  bill. 
The  provision  of  this  section,  that  the 
judge  shall  strike  out  all  redundant  and 
useless  matter,  so  that  the  exceptions  may 
be  presented  as  briefly  as  possible,  is  not 
a  limitation  of  his  functions  in  settling 
the  bill,  but  is  in  the  nature  of  a  ilefini- 
tion  of  the  course  he  is  authorized  to  adopt 
in  settling  the  bill.  Hyde  v.  Bovle,  89  Cal. 
590;  26  Pac.  1092.  The  judge  should  settle 
the  bill  when  properly  presented,  and 
should  also  strike  out  redundant  or  use- 
less matter,  whether  the  parties  consent 
thereto  or  not,  and  make  the  statement 
truly  represent  the  case.  Santa  Ana  v. 
Ballard,  126  Cal.  677;  59  Pac.  133.  Set- 
ting up  a  will  twice  in  a  bill  of  exceptions 
is  improper:  one  copy  should  be  stricken 
out.  Estate  of  Robinson,  106  Cal.  493;  39 
Pac.  862.  Matters  not  occurring  in  court, 
and  concerning  which  no  showing  was  made 
in  court,  cannot  be  noticed  ui)on  apjieal, 
though  recited  in  the  bill  (Estate  of  Car- 
penter, 127  Cal.  582;  60  Pac.  162);  neither 
can  irrelevant  matters  incorporated  into 
the  bill  of  exceptions,  nor  matters  which 
show  upon  the  face  of  the  bill  that  they 
were  not  presented  to  the  court  at  the  time 
it  made  its  rulings,  or  could  not  have  any 
weight  in  determining  the  correctness  of 
such  rulings.  Hyde  v.  Boyle,  89  Cal.  590; 
26  Pac.  1092.  The  insertion  of  a  clause  in 
a  bill  of  exceptions,  by  the  judge,  stating 
that  the  evidence  was  sufficient  to  prove 
all  the  allegations  of  the  complaint,  will 
be  disregarded  on  appeal,  as  an  attempt 
to  forestall  the  question  to  be  examined 
on  the  evidence  brought  up.  Hudson  v. 
Hudson,  129  Cal.  141;  61  Pac.  773.  Ad- 
ditional costs  will  not  be  imposed  on  the 
respondent  by  reason  of  his  insertion  of 
redundant  matter  in  the  bill,  where  the 
judgment  is  reversed  and  costs  of  appeal 
are  imposed  on  him.  Estate  of  Robinson, 
106  Cal.  493;  39  Pac.  862. 


§650 


EXCEPTIONS. 


714 


Refusal  to  settle.  Where  the  party  pro- 
posing a  bill  of  exceptions  refuses  to  adopt 
the  amendments,  and  fails  to  present  the 
same  for  settlement  within  the  time  lim- 
ited by  this  section,  without  offering  any 
excuse  therefor,  the  court  is  justified  in 
refusing  to  settle  the  bill  (Whipple  v.  Hop- 
kins, 119  Cal.  349;  51  Pac.  535;  and  see 
Henry  v.  Merguire,  106  Cal.  142;  39  Pac. 
599);  and  also  where  the  appellant  fails 
to  file  the  proposed  bill,  with  the  amend- 
ments thereto,  with  the  clerk,  or  to  pre- 
sent them  to  the  judge,  until  several 
months  after  the  time  limited.  Gamache 
V.  Budd,  129  Cal.  554;  62  Pac.  105.  A 
failure  to  serve  some  of  the  necessary 
parties  with  a  proposed  bill  does  not  re- 
quire or  authorize  the  trial  court  to  refuse 
to  settle  the  bill  at  all,  nor  does  it  affect 
the  jurisdiction  of  the  appellate  court  to 
entertain  the  appeal.  Estate  of  Young,  149 
Cal.  173;  85  Pac.  145.  Failure  to  serve  a 
copy  of  the  notice  of  the  time  and  place 
of  settlement  of  the  bill  on  the  attorneys 
of  the  adverse  party  renders  the  refusal 
to  settle  the  bill  proper  (Gallardo  v.  At- 
lantic etc.  Telegraph  Co.,  49  Cal.  510); 
and  failure  to  give  notice  of  intention 
to  ask  the  court  to  disallow  the  amend- 
ments to  the  bill,  and  settle  the  bill  as 
proposed,  within  ten  days  after  service  of 
such  amendments,  renders  a  refusal  to  set- 
tle the  bill  proper,  where  no  excuse  was 
offered  for  not  so  doing  (Whipple  v.  Hop- 
kins, 119  Cal.  349;  51  Pac.  535);  but  when 
no  amendments  are  proposed,  failure  to 
present  the  proposed  bill  for  settlement 
within  the  ten  days  does  not  justify  a  re- 
fusal: no  absolute  limit  is  placed  upon  the 
time  in  which  the  judge  may  certify  the 
bill.  Houghton  v.  Superior  Court,  128  Cal. 
352;  60  Pac.  972.  It  is  not  the  duty  of 
the  judge  to  make  the  statement  on  mo- 
tion for  a  new  trial;  hence,  where  a  pro- 
posed statement  is  a  mere  pretense  and 
fraud,  its  settlement  is  properly  refused. 
Hearst  v.  Dennison,  72  Cal.  227;  13  Pac. 
628. 

Compelling  settlement.  Mandamus  lies 
to  compel  a  judge  to  settle  a  bill  of  excep- 
tions, or  a  statement  of  the  case  (Hearst 
v.  Dennison,  72  Cal.  227;  13  Pac.  628;  Lan- 
ders v.  Landers,  82  Cal.  480;  23  Pac.  126; 
Tibbets  V.  Eiverside  Banking  Co.,  97  Cal. 
258;  32  Pac.  174;  Hudson  v.  Hudson,  129 
Cal.  141;  61  Pac.  773;  Miller  v.  American 
Central  Ins.  Co.,  2  Cal.  App.  271;  83  Pac. 
289) ;  and  to  compel  a  referee  to  settle  a 
statement  on  motion  for  a  new  trial,  in  an 
action  tried  by  him  (Careaga  v.  Fernald, 
66  Cal.  351;  s'Pac.  615;  Hicks  v.  Masten, 
101  Cal.  651;  36  Pac.  130);  and  to  compel 
the  court  to  allow  the  amendment  of  a 
bill  of  exceptions  or  a  statement  (Kruse  v. 
Chester,  66  Cal.  353;  5  Pac.  613;  Leach 
V.  Pierce,  93  Cal.  614;  29  Pac.  235;  Tibbets 
V.  Riverside  Banking  Co.,  97  Cal.  258;  32 
Pac.   174;   Winters  v.   Buck,   121   Cal.   279; 


53  Pac.  799;  Santa  Ada  v.  Ballard,  126  Cal. 
677;  59  Pac.  133);  but  the  correctness  of 
a  settled  bill  of  exceptions  cannot  be  tested 
in  mandamus  proceedings;  and  the  appel- 
late court  will  not  order  a  reference  so 
that  evidence  may  be  taken  on  that  issue. 
Thornton  v.  Hoge,  84  Cal.  231;  23  Pac. 
1112.  A  petition  for  a  writ  of  mandamus, 
made  more  than  five  months  after  refusal 
to  settle  the  statement,  will  not  be  granted 
(McConoughey  v.  Torrence,  124  Cal.  330; 
57  Pac.  81);  nor  will  a  petition  for  man- 
damus be  granted  to  compel  the  insertion 
of  an  improper  affidavit.  Gay  v.  Torrance, 
145  Cal.  144;  78  Pac.  540.  A  petition  for 
mandamus,  to  compel  the  court  to  settle 
a  bill  of  exceptions,  should  allege  that 
the  proposed  bill  contains  everything  that 
the  petitioner  believes  it  should  contain 
to  make  it  a  fair  and  proper  draft  of  the 
bill.  Walkerley  v.  Greene,  104  Cal.  208; 
37  Pac.  890.  Where  the  bill  of  exceptions 
presented  does  not  show  an  attempt  to  pre- 
sent a  fair  and  bona  fide  statement  of  the 
case,  a  writ  of  mandate  will  not  be  granted 
to  compel  its  settlement.  Pacific  Land 
Ass'n  V.  Hunt,  105  Cal.  202;  38  Pac.  635. 
Where  the  refusal  of  the  court  to  settle 
a  bill,  to  which  no  amendments  were  pro- 
posed, was  based  on  an  erroneous  construc- 
tion of  the  code,  on  the  ground  that  it 
was  not  presented  for  settlement  in  time, 
and  that  there  was  no  excuse  for  delay, 
and  the  question  of  unreasonable  delay, 
under  the  true  construction  of  the  code,  was 
not  passed  upon  by  him,  mandamus  lies  to 
compel  the  court  to  settle  the  proposed 
bill  (Houghton  v.  Superior  Court,  128  Cal. 
352;  60  Pac.  972);  and  also  where,  after 
many  agreed  conferences  by  counsel  for 
both  parties,  the  moving  party  attached 
to  the  proposed  amendments  a  written  al- 
lowance of  them  all,  four  days  after  the 
expiration  of  the  time  allowed  by  law, 
and  thereupon  filed  them  with  the  clerk 
for  the  judge,  and  presented  them  to  the 
judge  on  the  following  day,  the  bill  and 
amendments  were  presented  within  a  rea- 
sonable time,  under  the  circumstances. 
Gay  V.  Torrance,  143  Cal.  14;  76  Pac.  717. 

Engrossing  of  bill.  Whether  a  party 
has  exercised  due  diligence  in  causing  a 
bill  of  exceptions  to  be  engrossed  after  it 
is  settled,  or  in  presenting  it  to  the  judge 
for  his  signature  after  it  is  engrossed,  is 
to  be  determined  by  the  judge,  under  the 
circumstances  of  each  case,  and,  in  the  ab- 
sence of  abuse  of  discretion,  his  determina- 
tion is  conclusive.  Miller  v.  American  Cen- 
tral Ins.  Co.,  2  Cal.  App.  271;  83  Pac.  289; 
and  see  Galbraith  v.  Lowe,  142  Cal.  295; 
75  Pac.  831.  An  unexplained  delay  for 
a  period  of  five  months  in  causing  the  bill 
to  be  engrossed,  where  the  parties  have 
agreed  on  its  form  and  contents,  is  inex- 
cusable. Miller  v.  Queen  Ins.  Co.,  2  Cal. 
App.  267;  83  Pac.  287.  Any  objection  to 
the  laches  of  the  moving  party  in  engross- 


715 


CERTIFICATIOX,   FTC,   OF   RILL — PFRVICE,   ETC. — APPEAL. 


§650 


ing  thp  statpiiiont,  as  ground  for  denial  of 
the  motion,  must  be  ombodied  in  a  sepa- 
rate bill  of  exceptiouH  as  ground  for  his 
own  api>eal  from  an  oriler  made  after  final 
judgment.  Ryer  v.  Rio  Land  etc.  Co.,  147 
Cal.  4(i2;  S2  Vac.  di'. 

Certification  of  bill.  Tlie  bill  of  excep- 
tions is  not  settled  until  it  is  certified  as 
correct:  this  cannot  be  done  until  it  is  en- 
grossed, if  engrossing  is  necessary.  Hough- 
ton V.  Superior  Court,  12.S  Cal.  3.^2;  60  Pac. 
fl72.  Relief  from  the  filing  of  a  settled 
and  engrossed  bill,  without  being  certified, 
through  the  inadvertence  of  the  judge  or 
referee,  should  be  granted,  if  a  timely 
request  is  made  for  a  certificate  of  allow- 
ance to  the  court;  and,  on  appeal,  such  fil- 
ing will  be  considered  as  ]iremature  and 
unauthorized.  Jackson  v.  Puget  Sound 
Lumber  Co.,  115  Cal.  632;  47  Pac.  603. 
The  trial  judge  must  determine  whether 
a  bill  of  exceptions  has  been  correctly  en- 
grossed: his  certification  thereof  is  a  de- 
termination to  that  effect  (Merced  Bank 
V.  Price,  1.52  Cal.  697;  93  Pac.  866);  and 
his  determination  is  final.  Eyer  v.  Rio 
Land  etc.  Co.,  147  Cal.  462;  82  Pac.  62. 
He  may  properly  refuse  to  sign  and  cer- 
tify an  engrossed  bill,  if  it  fails  to  speak 
the  truth.  Galvin  v.  Hunt,  153  Cal.  103; 
94  Pac.  423. 

Refusal  to  certify.  The  court  has  dis- 
cretion to  refuse  to  sign  an  engrossed  bill 
of  exceptions,  where  there  is  evident  lack 
of  diligence  in  engrossing  the  same,  after 
knowledge  of  the  action  of  the  judge  in 
relation  thereto.  Galbraith  v.  Lowe,  142 
Cal.  295;  75  Pac.  831.  Failure  to  serve  an 
engrossed  bill  on  the  attorney  for  the  op- 
posing party,  before  jiresentation  to  the 
judge,  does  not  justify  an  absolute  refusal 
to  certify,  though  it  might  justify  a  re- 
fusal to  certify  until  counsel  examine  it. 
Ryer  v.  Rio  Land  etc.  Co.,  147  Cal.  462;  82 
Pac.  62. 

Delay  in  filing  bill.  The  question 
whether  delay  in  filing  the  bill  is  unrea- 
sonable is  for  the  lower  court  to  determine, 
and  its  determination  will  not  be  reviewed 
on  appeal,  in  the  absence  of  a  bill  of  excep- 
tions setting  out  the  facts  (Jaffe  v.  Lilien- 
thal,  101  Cal.  175;  35  Pac.  636);  nor  can 
a  bill,  filed  two  months  after  the  order 
appealed  from  was  entered  in  the  minutes 
of  the  court,  be  considered  on  appeal 
(Pereira  v.  City  Sav.  Bank,  128  Cal.  45; 
60  Pac.  524) ;  nor  a  bill  filed  more  than 
nine  years  after  the  ruling  excepted  to. 
Estate  of  Carpenter,  127  Cal.  582;  60  Pac. 
162. 

Service  of  settled  bill  unnecessary. 
Where  the  statute  simply  requires  that  a 
settled  bill  of  exceptions  shall  be  "filed," 
it  need  not  be  served  upon  the  adverse 
party.  Broaddus  v.  James,  13  Cal.  App. 
478;  110  Pac.  164.  The  mere  failure  to 
serve  a  bill  of  exceptions,  under  the  amend- 
ment to  this  section  in  1907,  after  such  bill 


had  been  settled,  engrossetl,  and  certifieil, 
did  not  warrant  the  striking  of  the  bill 
from  the  record  on  a[ipeal.  Smith  v.  Goethe, 
159  Cal.  628;  Ann.  ('as.  1912C,  1205;  115 
Pac.  223. 

Burden  of  acting  is  upon  whom.  The 
burden  is  at  all  times  on  the  j>arty  moving 
for  a  new  trial  to  take  the  steps  neces- 
sary to  enable  the  court  to  hear  the  mo- 
tion (Miller  v.  Queen  Ins.  ("o..  2  ('al.  App. 
267;  83  Pac.  287;  Estate  of  Depeanx,  IIS 
Cal.  522;  50  Pac.  682);  and,  whether  the 
proposed  amendments  are  adoj)ted  or  not, 
it  is  the  duty  of  the  moving  i)arty  to  pre- 
sent the  statement  ami  amendments  to  the 
judge,  and  it  is  not  the  duty  of  the  op[)08- 
ing  })arty  to  take  any  further  proceedings 
towards  the  settlement  of  the  statement. 
Lee  Doon  v.  Tesh,  131  Cal.  406;  63  Pac. 
764.  Delivery  of  the  proposed  bill  and 
amendments  to  the  clerk  for  the  judge  is 
not  sufficient:  the  moving  party  should  ob- 
tain an  order  from  the  judge,  setting  the 
day  for  the  settlement  of  the  bill;  the  ad- 
verse party  is  not  required  to  move  in  the 
matter.  Miller  v.  Queen  Ins.  Co.,  2  Cal. 
App.  267;  83  Pac.  287. 

Bill  constitutes  record.  A  bill  of  excep- 
tions, when  certifie<l  by  the  judge,  is  filed 
with  the  clerk:  it  then  becomes  the  record 
of  the  court,  and  the  only  record  in  the 
matter.  Merced  Bank  v.  Price,  152  Cal. 
697;  93  Pac.  866. 

Statement  not  considered  as  bill  when. 
Where  there  is  a  failure  to  serve  adverse 
parties  with  a  proposed  statement  on  mo- 
tion for  a  new  trial,  or  to  give  them  an 
opportunity  to  serve  amendments  thereto, 
the  statement  cannot  be  considered  as  a 
bill  of  exceptions  to  be  used  upon  appeal 
from  the  ju(!:rnient.  National  Bank  v.  Mul- 
ford.  17  ('al.  App.  551;  120  Pac.  440. 

Waiver  of  notice.  The  waiver  of  notice 
by  one  adverse  party  does  not  dispense 
with  the  necessity  of  notice  to  other  ad- 
verse parties.  Ford  v.  Braslan  Seed 
Growers  Co.,  10  Cal.  App.  762;  103  Pac. 
946. 

Appeal,  use  of  bill.  Alleged  errors  in 
an  award  of  arbitrators,  entered  as  an 
order  of  the  court  by  stipulation  of  the 
parties,  if  reviewable  upon  appeal,  cannot 
be  reviewed  uj)on  an  ex  parte  affidavit  of 
the  appellant,  which  cannot  take  the  place 
of  a  bill  of  exceptions  or  of  a  statement 
of  the  case.  Arbitration  of  Connor  and 
Pratt,  128  Cal.  279;  60  Pac.  862.  The  cer- 
tificate of  the  judge,  that,  of  his  own  mo- 
tion, both  in  hearing  and  deciding  the 
defendant's  motion,  he  took  notice  of  and 
used  the  court's  own  records  in  the  case, 
and  that  the  attorney  who  appeared  in  be- 
half of  the  motion  did  not  use  or  present 
any  papers  save  those  annexed  to  the  cer- 
tificate, is  not  the  equivalent  of  a  bill  of 
exceptions,  and  cannot  be  considered  on 
appeal.  Ramsbottom  v.' Fitzgerald.  128  Cal. 
75;  60  Pae.  522.     The  mere  fact  that  a  bill 


§651 


EXCEPTIONS. 


716 


of  exceptions  was  technically  presented 
for  settlement,  and  used  on  an  appeal  from 
a  non-appealable  order,  cannot  preclude  its 
use  for  the  purpose  of  reviewing  such  order 
on  an  appeal  from  the  judgment.  Foley  v. 
Foley,  120  Cal.  33;  65  Am.  St.  Eep.  147; 
52  Pac.  122.  The  fact  that  the  appellant 
presented  for  settlement  what  he  termed  a 
proposed  statement  on  appeal  will  not  de- 
prive him  of  the  fruits  of  the  appeal,  but 
the  document  will  be  treated  as  a  bill  of 
exceptions;  there  being  no  substantial  dif- 
ference between  a  statement  and  a  bill  of 
exceptions.  Witter  v.  Andrews,  122  Cal. 
1;  54  Pac.  276;  People  v.  Crane,  60  Cal. 
279;  Jue  Fook  Sam  v.  Lord,  83  Cal.  159; 
23  Pac.  225.  An  appeal  from  an  order  di- 
recting the  conveyance  of  real  estate  by 
an  executor  is  properly  brought  by  bill  of 
exceptions.  Estate  of  Corwin,  61  Cal.  160. 
A  bill  of  exceptions,  made  out  in  behalf 
of  one  defendant,  to  be  used  on  motion  for 
a  new  trial  by  him,  cannot  be  used  by  a 
co-defendant  upon  an  appeal  by  him. 
Houghton  v.  Trumbo,  103  Cal.  239;  37  Pac. 
152.  Whether  parties,  not  served  with  a 
bill  of  exceptions  or  with  notice  of  appeal, 
will  be  aifected  by  a  proposed  modification 
of  the  judgment,  or  whether  a  bill  of  ex- 
ceptions, not  served  upon  them,  can  be 
considered  upon  the  appeal,  must  be  de- 
termined by  the  appellate  court,  and  the 
appellant  should  not  be  refused  the  right 
to  ask  the  appellate  court  to  consider  the 
bill  of  exceptions  by  reason  of  the  pos- 
sibility that  the  bill  might  not  be  consid- 
ered upon  appeal.  Gutierrez  v.  Hebberd, 
106  Cal.  167;  39  Pac.  529,  835. 

§  651.     Exceptions  after  judgment.     Exceptions  to   any  decision  made 

after  judgment  may  be  presented  to  the  judge  at  the  time  of  such  decision, 

and  be  settled  or  noted,  as  provided  in  section  six  hundred  and  forty-nine, 

or  a  bill  thereof  may  be  presented  and  settled  afterward,  as  provided  in 

section  six  hundred  and  fifty,  and  w^ithin  like  periods  after  entry  of  the 

order,  upon  appeal  from  which  such  decision  is  reviewable. 

after  judgment,  heard  on  aflSdavits,  a  bill 
of  exceptions  is  the  only  proper  mode  of 
authenticating  such  affidavits.  Somers  v. 
Somers,  81  Cal.  60S;  22  Pac.  967;  Manuel 
V.  Flynn,  5  Cal.  App.  319;  90  Pac.  463; 
Skinner  v.  Horn,  144  Cal.  278;  77  Pac.  904. 
The  refusal  of  the  court  to  hear  any  evi- 
dence in  support  of  the  defense,  or  its  dis- 
regard of  such  evidence  in  its  decisions, 
must  be  presented  in  the  bill  of  exceptions 
or  statements  of  the  ease:  it  cannot  be  con- 
sidered if  presented  merely  in  ex  parte  affi- 
davits containing  the  evidence  presented 
at  the  trial,  and  the  rulings  thereon.  Santa 
Cruz  Rock  Pavement  Co.  v.  Bowie,  104 
Cal.  236;  37  Pac.  934.  An  order  denying 
a  new  trial,  being  appealable,  is  deemed 
to  have  been  excepted  to,  and  need  not 
be  embodied  in  a  bill  of  exceptions.  South- 
ern Pacific  R.  R.  Co.  v.  Superior  Court,  105 
Cal.  84;  38  Pac.  627. 


Appeal  from  refusal  to  settle  bill.  Re- 
fusal to  settle  a  bill  of  exceptions  cannot 
be  reviewed  on  appeal.  Hudson  v.  Hudson, 
129  Cal.  141;  61  Pac.  773;  Whipple  v.  Hop- 
kins, 119  Cal.  349;  51  Pac.  535.  That 
the  moving  party  was  interested  in  other 
causes,  wherein  the  time  of  his  attorney 
was  occupied,  is  a  circumstance  to  be 
considered  by  the  judge  in  determining 
whether  there  was  undue  negligence  in  the 
settlement  of  the  bill,  and  his  determina- 
tion on  that  point  will  not  be  reviewed  on 
appeal.  Miller  v.  Queen  Ins.  Co.,  2  Cal. 
App.  267;  S3  Pac.  287. 

Terms  defined.  The  word  "trial,"  as 
used  in  this  section,  means  the  trial  of  an 
issue  of  law,  as  well  as  the  trial  of  an  issue 
of  fact.  Redingtou  v.  Cornwell,  90  Cal.  49, 
27  Pac.  40.  The  term  "adverse  parties," 
as  used  in  this  section,  includes  persons 
claiming  as  devisees  under  a  will,  in  an  ap- 
plication for  partial  distribution.  Estate 
of  Young,  149  Cal.  173;  85  Pac.  145.  The 
words,  "when  there  is  a  proceeding  pend- 
ing for  the  settlement  of  a  bill  of  excep- 
tions," found  in  a  rule  of  court,  include 
any  proceeding,  looking  to  the  settlement 
of  such  a  bill,  that  has  been  actually  in- 
augurated by  a  party.  Dernham  v.  Bagley, 
151  Cal.  216;  90  Pac.  543. 

Filing  bill  of  exceptions.  See  note  15  Am.  St. 
Rep.  297. 

What  bill  of  exceptions  must  show.  See  note 
8  L.  R.  A.  611. 

Power  upon  rendition  of  judgment  to  allow  or 
extend  time  for  preparing  and  filing  bill  of  ex- 
ceptions.   See  note  42  L.  R.  A.   (N.  S.)    625. 


Legislation  §  651.  1.  Enacted  March  11,  1873, 
and  then  read:  "A  bill  containing  the  exceptions 
to  any  ruling  made  after  judgment,  except  to  a 
ruling  made  granting  or  refusing  a  new  trial, 
may  be  presented  to  the  judge  at  the  time  of  such 
ruling,  and  be  settled  as  provided  in  section  six 
hundred  and  forty-nine;  and,  if  not  so  presented, 
may,  upon  one  day's  notice,  and  at  any  time 
after,  and  within  ten  days  of,  such  ruling,  be 
presented  and  settled  as  in  such  section  pro- 
vided." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  314, 
to  read  as  at  present,  except  for  amendments  of 
1907  ;  q.  v.,  infra. 

3.  Amendment  by  Stats.  1901,  p.  148;  un- 
constitutional.     See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  716,  (1) 
changing  the  word  "and"  to  "or"  before  "a  bill 
theri'of."  and  (2)  changing  "afterwards"  to 
"afterward." 

Bill  necessary  when.  Papers  used  on 
the  hearing  in  the  court  below  must  be 
authenticated  by  a  bill  of  exceptions. 
Herrlich  v.  McDonald,  80  Cal.  472;  22  Pac. 
299.     On    an    appeal    from   an    order    maile 


717 


REFUSAL  TO  ALLOW — SETTLEMENT  BY  APPELLATE  COURT. 


Bin  may  show  what.  A  person  dcsirincj 
to  appoal  from  an  order  granting  a  new 
trial  may  always  show  what  was  used  on 
the  hearing  of  the  motion,  by  a  bill  of  ex- 
ceptions settled  as  authorized  by  this  sec- 
tion. Wyckoff  V.  Pajaro  Valley  etc.  R.  R. 
Co.,  146  Cal.  6S1;  81  Pac.  17.  Exceptions 
to  decisions  after  judgment  may  be  pre- 
served by  a  bill  thereof,  where  the  mat- 
ter is  heard  on  oral  evidence.  Lyons  v. 
Marcher.  119  Cal.  382;  51  Pac.  559;  an<i 
see  Ilerrlich  v.  McDonald,  SO  Cal.  472;  22 
Pac.  299.  Neither  the  findings  of  fact  and 
conclusions  of  law,  nor  the  decree  entered 
thereon,  nor  the  notice  of  appeal,  with 
proof  of  service,  nor  the  recital  that  a 
suflicient  undertaking  on  ajipeal  has  been 
filed  with  the  clerk,  can  be  properly  in- 
cluded  in   a   bill   of   exceptions.    White   v. 


White.  112  Cal.  577;  44  Pac.  1026. 

Compelling  settlement.  On  an  appeal 
from  an  order  striking  out  competent  affi- 
davits to  be  used  on  a  motion  for  a  new 
trial,  on  the  ground  of  irregularity  in  the 
proceedings,  the  appellant  is  entitled  to 
a  bill  of  exceptions  containing  such  affi- 
davits, and  mandam\is  will  issue,  where 
the  court  refuses  to  scttio  the  bill.  Oav 
V.  TorraiKO,  145  Cal.  11):  7^  Pa<-.  540. 

Stipulation  as  to  affidavits  used  on  hear- 
ing. A  stijiulation  of  attorneys,  that  cer- 
tain affidavits  were  used  on  the  hearing  of 
a  motion  for  a  new  trial,  does  not  au- 
thorize the  consideration  of  such  affidavits 
upon  appeal,  where  it  does  not  ai>pear  that 
they  constituted  all  the  affidavits  and 
papers  used  ou  the  hearing.  Manuel  v. 
Flynn,  5  Cal.  App.  319;  90  Pac.  463. 


§  652.  Proceedings  if  judge  refuse  to  allow  bill  of  exceptions.  Tf  tho 
judge  in  any  case  refuses  to  allow  a  bill  of  exceptions  in  accordance  with 
the  facts,  the  party  desiring  the  bill  settled  may  apply  by  petition  to  the 
supreme  court  to  prove  the  same;  the  application  may  be  made  in  the 
mode  and  manner,  and  under  such  regulations  as  that  conn  may  prescribe ; 
and  the  bill,  when  proven,  must  be  certified  by  the  chief  justice  as  correct, 
and  filed  with  the  clerk  of  the  court  in  which  the  action  was  tried,  and 
when  so  filed  it  has  the  same  force  and  effect  as  if  settled  by  the  judge  who 
tried  the  cause. 

the  judge  refuses  to  allow  an  exception. 
Application  of  Gates,  90  Cal.  257;  27  Pac. 
195;  Hyde  v.  Boyle,  86  Cal.  352;  24  Pac 
1059.  The  appellate  court  is  not  required 
to  discharge  the  duties  of  the  judge  of  the 
court  below,  but  only  to  provide  a  mode  for 
the  settlement  of  the  bill,  where  the  trial 
ju<lge,  on  proper  application  therefor,  re- 
fuses to  settle  any  bill  of  excejitions,  or  to 
settle  the  bill  in  accordance  with  the  facts; 
and  the  appellate  court  will  not  settle  a  bill 
which  the  trial  judge  below  properly  re- 
fused to  settle.  Gallardo  v.  Atlantic  etc. 
Telegraph  Co.,  49  Cal.  510.  The  refusal  of 
the  trial  judge  to  allow  an  exception  to  the 
erroneous  denial  of  an  application  to  prove 
certain  facts  justifies  an  aj'iilication  to  the 
appellate  court.  Estate  of  Mill,  62  Cal.  18»i. 
A  judge  refusing  to  settle  a  proposed 
statement  may  be  compelled  to  do  so.  by 
proceedings  under  this  section.  Hearst  v. 
Dennison,  72  Cal.  227;  13  Pac.  628.  Where 
no  exception  has  been  disallowed,  a  peti- 
tion to  the  ajipellate  court,  under  this 
section,  does  not  lie  to  settle  a  bill  of 
exceptions,  merely  to  determine  whether 
the  judge  has  inserted  or  refused  to  insert 
a  correct  statement  of  proceeilings  and 
evidence  in  the  action.  Vance  v.  Superior 
Court,  ^^7  Cal.  ;U)0;  25  Pac.  500. 

Time  of  application.  The  right  to  apply 
for  relief  under  this  section  accrues  when 
the  judge  has  concluded  the  settlement  of 
the  pro{iosed  bill  or  statement,  and  di- 
rected  its   engrossment,   without   including 


Legislation  §  652.  1.  Enacted  March  11.  1872, 
and  read  the  same  as  at  present,  except  for 
amendments  of  1007;  q.v.,  infra. 

2.  Amendment  by  Stats.  1901,  p.  14S;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  716,  changing 
(1)  "refuse"  to  "refuses,"  and  (2)  "an  excep- 
tion"  to   "a   bill  of  exceptions,"   in   first   line. 

Jurisdiction    of    appellate    courts.     The 

powers  of  the  supreme  court,  under  this 
section,  are  restricted.  Estate  of  Dolbeer, 
147  Cal.  359;  81  Pac.  1098.  The  district 
court  of  api)eal  has  jurisdiction  of  a 
petition  for  proving  exceptions.  Glass  v. 
Lawlor,  152  Cal.  602;  93  Pac.  490.  The 
propriety  of  making  the  procedure  in 
criminal  cases  correspond  with  that  in 
civil"  cases,  as  to  the  method  of  proving  a 
bill  of  exceptions  before  the  appellate 
tribunal,  is  for  the  legislature,  and  not 
for  the  courts.  People  v.  Knoblock,  II 
Cal.  App.  333;  104  Pac.  1012. 

When  appellate  court  will  settle.  This 
section  docs  not  api)ly  where  the  trial 
judge  refuses  to  settle  any  statement  or 
bill  of  exceptions:  it  applies  where  the 
trial  judge,  in  settling  a  bill,  erroneously 
refuses  to  allow  one  or  more  exceptions. 
Landers  v.  Landers,  82  Cal.  480;  23  Pac. 
126;  Hyde  v.  Boyle,  86  Cal.  352;  24  Pac. 
1059;  Tibbets  v.  Riverside  Banking  Co., 
97  Cal.  258;  32  Pac.  174;  Hudson  v.  Hud- 
son, 129  Cal.  141;  61  Pac.  773;  Estate  of 
Dolbeer,  147  Cal.  359;  81  Pac.  1098.  It 
limits  the  authority  of  the  appellate  court 
to  interfere  in  the  settlement  of  a  bill  of 
exccjjtiong  to  the  single  iustarice  in  which 


§652 


EXCEPTIONS. 


718 


an  exception  which  the  party  seeking  the 
allowance  of  the  bill  claims  to  have  re- 
served; the  application  should  be  made 
promptly;  but  where  the  trial  was  pro- 
tracted, and  the  engrossed  statement  was 
bulkv,  a  delav  of  two  months  is  excusable. 
Estate  of  Dolbeer,  147  Cal.  359;  81  Pac. 
1098.  Where  the  statement  has  been  set- 
tled, and  a  motion  for  a  new  trial  based 
on  such  statement  has  been  denied,  it  is 
too  late  to  apply  to  the  appellate  court 
to  prove  an  exce^Jtion.  Frankel  v.  Deides- 
heimer,  83  Cal.  44;   23  Pac.  136. 

Who  may  apply.  "The  party  desiring 
the  bill  settled,"  who  is  authorized  to  ap- 
ply to  the  appellate  court  to  prove  excep- 
tions allowed,  is  the  party  who  takes  the 
exception  and  presents  the  bill  to  the  judge 
for  settlement:  that  phrase  does  not  in- 
clude the  prevailing  party,  who  has  no 
right  to  have  exceptions  in  his  favor  in- 
serted by  way  of  amendments  to  the  bill 
proposed  by  the  losing  party.  Application 
of  Gates.  90  Cal.  257;  27  Pac.  195. 

Contents  of  petition-  The  petition  in 
an  application  to  the  supreme  court  for  the 
settlement  of  a  bill  of  exceptions  should 
set  forth  fully  and  specifically  the  excep- 
tions taken  and  the  evidence  in  support 
thereof,  and  notice  of  the  application 
should  be  given  to  the  trial  judge  (Guar- 
dianship of  Hawes,  68  Cal.  413;  9  Pac.  456; 
People  V.  Bitancourt,  73  Cal.  1;  14  Pac. 
372;  Landers  v.  Landers,  82  Cal.  480;  23 
Pac.  126;  and  see  Wormouth  v.  Gardner, 
35  Cal.  227);  but  only  a  general  statement 
of  the  tendency  of  the  evidence  is  re- 
quired, so  that  the  materiality  of  the  rul- 
ing may  appear.  People  v.  Bitancourt,  73 
Cal.  1;  14  Pac.  372.  The  party  seeking 
the  allowance  of  exceptions  should  present 
his  whole  case  in  his  original  petition,  or 
before  the  hearing  on  the  reference.  Es- 
tate of  Dolbeer,  147  Cal.  359;  81  Pac.  1098. 
A  petition  for  leave  to  prove  a  bill  of  ex- 
ceptions, which  has  annexed  thereto,  as  an 
exhibit,  a  document  containing  the  evi- 
dence, ruling,  and  exceptions  taken  on  the 
hearing,  is  sufiicient.  Guardianship  of 
Hawes,  2  Cal.  Unrep.  656;  11  Pac.  220. 
The  petition  for  leave  to  prove  an  excep- 
tion must  show  that  the  proper  steps  to 
procure  the  settlement  of  the  bill  were 
taken,  and  that  a  statement  of  the  par- 
ticular exception  desired  to  be  proven  was 
included  in  the  proposed  bill,  and  that  the 
judge,  in  settling  the  bill,  refused  to  allow 
that  such  an  exception  was  taken:  no  pre- 
sumptions are  indulged.  Estate  of  Dolbeer, 
147  Cal.  359;  81  Pac.  1089. 

Amendment  to  petition.  The  petition 
cannot  be  amended  after  a  reference  has 
Vjeen  ordered  and  a  hearing  had.  Estate 
of  Dolbeer,  147  Cal.  359;  81  Pac.  1098. 

Evidence  admissible  on  application. 
Where  an  exception  is  disallowed  contrary 
to  the  facts,  the  party  may  prove  to  the 
appellate    court    that    the    exception    was 


taken,  and,  in  connection  therewith,  may 
prove  sufficient  surrounding  facts  to  show 
the  point  of  the  exception;  and  where  he 
succeeds  in  making  his  proof,  his  excep- 
tion will  be  put  into  a  bill  certified  by  the 
chief  justice  and  filed  with  the  clerk  be- 
low, where  it  will  form  part  of  the  record 
(Vance  v.  Superior  Court,  87  Cal.  390;  25 
Pac.  500);  but  this  section  does  not  au- 
thorize any  evidence  or  other  matters  to 
be  added,  alleged  to  have  been  improperly 
omitted,  in  addition  to  the  statement  of 
the  ruling  and  exception.  Estate  of  Dol- 
beer, 147  Cal.  359;  81  Pac.  1098.  It  au- 
thorizes the  appellate  court  to  order  an 
instrument,  to  the  exclusion  of  which  an 
exception  was  taken,  to  be  certified  for 
its  inspection,  where  the  trial  court  refuses 
to  insert  it  in  the  bill  of  exceptions,  since 
it  cannot  be  said  that  the  judge  allowed 
an  exception  to  a  ruling  admitting  it  in 
evidence,  when  the  instrument  itself,  the 
verv  thing  objected  to,  is  excluded  from 
the'bill  (Jennings  v.  Brown,  109  Cal.  290; 
41  Pac.  1085;  and  see  Lay  v.  Parsons,  104 
Cal.  661;  38  Pac.  447); 'but  it  does  not 
give  authority  to  the  appellate  court,  when 
an  excei)tion  to  a  particular  ruling  has 
been  allowed,  to  strike  out  any  evidence 
or  other  matters  stated  in  connection  with 
such  ruling,  on  the  ground  that  such  evi- 
dence was  not  given,  or  that  such  matters 
are  untruly  or  incorrectlv  stated.  Estate 
of  Dolbeer,  147  Cal.  359;  81  Pac.  109S; 
Hyde  V.  Boyle,  86  Cal.  352;  24  Pac.  1059; 
89  Cal.  590;'  26  Pac.  1092;  Cox  v.  Delmas, 
92  Cal.  652;  28  Pac.  687.  Where  it  is  con- 
ceded in  the  petition  that  the  judge  set- 
tled and  signed  the  bill,  but  it  is  alleged 
that  it  is  not  a  true  bill,  and  the  petition 
has  annexed  thereto  a  copy  of  the  bill  as 
settled,  and  also  a  copy  of  the  proposed 
bill,  a  case  is  presented,  in  which  the  peti- 
tioner should  be  allowed  to  prove  the  truth 
of  the  issue  thus  made.  Curran  v.  Ken- 
nedy, 3  Cal.  Unrep.  259;  24  Pac.  276.  Evi- 
dence that  the  statements  contained  in  the 
bill  as  settled  by  the  judge,  in  connection 
with  the  exceptions  which  he  allowed,  were 
incorrect,  either  as  to  the  omission  or  in- 
clusion of  matter  not  properly  omitted  or 
included,  is  immaterial.  Estate  of  Dolbeer, 
147  Cal.  569;  S2  Pac.  192. 

Burden  of  proof  on  petitioner.  Where 
the  allegations  of  the  ])etition  are  not  es- 
tablished by  a  preponderance  of  evidence, 
the  petition  will  be  denied.  Crow  v.  Minor, 
85  Cal.  214;  24  Pac.  640.  Where  the  evi- 
dence is  directly  conflicting  as  to  whether 
certain  alleged  exceptions  were  made,  it 
cannot  be  held  that  the  judge  erred  or 
abused  his  discretion  in  not  allowing  them. 
People  V.  Scott,  121  Cal.  101;  53  Pac.  364. 

Presumptions  as  to  exhibits.  Instruments 
marked  at  the  trial  as  exhibits  are  pre- 
sumed, on  a  petition  to  compel  the  allow- 
ance of  exceptions  by  inserting  them,  to 
be  in  the  same  condition  as  when  the  court 


719 


SETTLEMENT    OF    BILL REFUSAL    TO    SETTLE — REMEDY. 


§653 


tified  by  the  chief  justice  constitutes  part 
of  the  record  upon  appeal.  ?38tate  of  Dol 
beer,  147  Cal.  359;   81   Pac.  1U9.S. 

Mandamus  to  compel  signing  of  bill  of  excep- 
tions.   Slo  notH  9H   Am.  St.   Kip.   90J. 


CODE     COMMISSIOKEBS' 

to   article    II. 


NOTE.      See     nuta 


ordered  them  to  be  sealed  up;  if  their  iilen- 
tity  is  questioned,  the  matter  can  be  in- 
quired into  on  apjieal.  .Tounings  v.  Brown, 
luy  Cal.  290;  41   I'ac.   lOS.-j. 

Settlement  of  new  bill  by  appellate  court. 
On  a  petition  to  prove  e.xcoptions,  tlicro 
may  be  a  settlement  of  a  new  hill,  basdl 
■upon  the  reporter's  notes;  anii  the  bill  cor- 

§653.  Settlement  of  bill  of  exceptions.  When  the  decision  excepted  to 
■was  made  by  any  judicial  officer,  other  than  a  judge,  the  bill  of  exceptions 
shall  be  presented  to  such  judicial  officer,  and  be  settled  and  siLrncd  by  him 
in  the  same  manner  as  it  is  required  to  be  presented  to.  settled,  and  si'_'ned 
by  a  court  or  judije.  A  judge  or  judicial  officer  may  settle  and  sign  a  bill 
of  exceptions  after,  as  well  as  before,  he  ceases  to  be  such  judge  or  judicial 
officer.  If  such  judge  or  judicial  officer,  before  the  bill  of  exceptions  is 
settled,  dies,  is  removed  from  office,  becomes  disqualified,  is  absent  from 
the  state,  or  refuses  to  settle  the  bill  of  exceptions,  or  if  no  mode  is  pro- 
Tided  by  law  for  the  settlement  of  the  same,  it  shall  be  settled  and  certified 
in  such  manner  as  the  supreme  court  may,  by  its  order  or  rules,  direct. 
Judges,  judicial  officers,  and  the  supreme  court  shall  respectively  possess 
the  same  power,  in  settling  and  certifying  statements,  as  is  by  this  section 
conferred  upon  them  in  settling  and  certifying  bills  of  exceptions. 

Remedy  where  ex-judge  refuses  to  settle 
bill.     Mamlamus  will  not  lie  to  compel  an 


Legislation  §  653.  1.  Enacted  March  11,  1872. 
and  then  read:  "If  the  judge  who  presided  at 
the  tri.tl  ceases  to  hold  oftiee  before  the  bill  is 
tendered  or  settled,  he  may,  nevertheless,  settle 
such  bill,  or  the  piirty  may,  as  provided  in  the 
preceding  section,  apply  to  the  supreme  court  to 
prove  the  same." 

2.    Amended  by  Code  Amdts.  1875-76,  p.  93. 

Constitutionality  of  section.  The  power 
of  a  .judge  who  has  tried  a  cause  to  settle 
a  bill  of  exceptions  therein,  after  the  ex- 
piration of  his  term  of  office,  conferred  by 
this  section,  has  been  continuously  recog- 
nized by  the  appellate  court  for  too  long 
a  period  of  time  to  be  now  questioned  as 
unconstitutional,  and  its  validity  is  af- 
firmed upon  the  rule  of  stare  decisis.  Miller 
&  Lux  V.  Enterprise  Canal  etc.  Co.,  142  Cal. 
208;  100  Am.  St.  Rep.  115;  75  Pac.  770. 

Power  of  judge  to  settle  bill.  Where 
the  successor  of  the  judge  who  tried  an 
action  hears  and  denies  the  motion  for  a 
new  trial,  made  upon  the  records  and  min- 
utes of  the  court,  the  subsequent  statement 
on  ajipeal  from  the  order  denying  the  mo- 
tion should  be  settled  by  the  judge  who 
made  the  order,  and  not  by  his  predecessor, 
who  tried  the  action.  Cummings  v.  Conlan, 
66  Cal.  403.  The  ex-judge  has  power  to 
settle  a  bill  of  exceptions  in  a  cause  that 
has  been  tried  before  him  as  judge.  Miller 
&  Lux  V.  Enterprise  Canal  etc.  Co.,  142 
Cal.  208;  100  Am.  St.  Kep.  115;  75  Pac.  770. 
A  bill  of  exceptions,  settled  by  a  judge 
who  had  no  power  to  do  so,  cannot  be  con- 
sidered on  appeal.  People  v.  Knoblock,  11 
Cal.  App.  333;  104  Pac.  1012. 


ex-judge,  before  whom  an  action  was  trie<l, 
to  settle  a  bill  of  exceptions  therein,  after 
his  term  of  office  expired,  although  he  is 
authorized  by  this  section  to  do  so.  Leach 
V.  Aitken,  91  Cal.  484;  28  Pac.  777.  Spe- 
cial application  should  be  made  to  the  ap- 
pellate court  for  an  order  liirectiug  the 
settlement  of  a  bill  of  exceptions,  where 
the  trial  judge  refuses  to  do  so  after  his 
term  of  office  has  expired,  in  order  to  ren- 
der it  available  on  appeal;  and  neglect  on 
the  part  of  the  appellant  to  take  such  steps 
as  were  necessary  to  secure  the  settlement 
of  the  bill,  within  a  reasonable  time,  is 
equivalent  to  his  failure  to  file  the  tran- 
script within  the  time  limited;  and  where 
more  than  six  months  have  elapsed,  the 
conclusion  is  authorized  that  the  appellant 
abandoned  the  exceptions  set  forth  in  the 
bill.  Estate  of  Depcaux,  118  Cal.  522;  50 
Pac.  6S2. 

Refusal  to  transfer  cause.  Refusal  to 
transfer  the  cause  to  the  superior  court  of 
an  adjoining  county,  in  order  to  settle  the 
statement  of  the  case,  is  improper,  where 
the  judge  is  disqualified,  and  the  judge 
who  tried  the  case  is  no  longer  in  office, 
and  the  judge  who  heard  the  motion  is  not 
the  judge  of  the  adjoining  count  v.  Finn 
V.  Spagnoli,  67  Cal.  330;  7  Pac.  746. 

Mandamus  to  compel  judge  to  sign  bill  of  es- 
ceptions  after  expiration  of  term.  Sea  note  3C 
L.  R.  A.  (N.  S.)  1087. 


§656 


NEW   TRIALS. 


720 


ARTICLE  II. 

NEW  TRIALS. 


§  656.    New  trial  defined. 
5  657.     When  a  new  trial  may  be  granted. 
§  658.     Motion  for   new  trial.      Papers. 
§  659.     Notice  of  motion.     Upon  whom  served,  and 
what  to  contain. 


§  660.    Motion,  when  to  be  heard. 

§661.     Record  on  appeal. 

§  662.     New  trial  on  court's  own  motion, 

§  663.     Vacation  of  judgment. 

§  663a.  Notice  of  intention,  service  of. 


§  656.     New  trial  defined.     A  new  trial  is  a  re-examination  of  an  issue 
of  fact  in  the  same  court  after  a  trial  and  decision  by  a  jury,  court,  or 


referee. 

Mandamus,    new    trial    in.     See    post,  §§  1092, 
1110. 
Iiegislation  §  656.    1.  Enacted  March  11,  1872; 

based  on  Practice  Act,  g  192,  which  had,  as  the 
last  words  of  the  section,  "jury,  court,  or  ref- 
erees." When  enacted  in  1872,  these  words  were 
changed   to    "jury    or  court,   or   by   referees." 

3.  Amendment  by  Stats.  1901,  p.  149;  un- 
constitutional.    See  note  ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  717;  the  code 
commissioner  saying,  "The  meaning  of  the  sec- 
tion is  not  changed  by  the  amendments." 

Issues   of   fact,    only,    reviewable.     The 

operation  of  this  section  is  confined  to 
those  cases  in  which  the  code  has  expressly- 
authorized  issues  of  fact  to  be  framed:  it 
does  not  apply  to  every  order  which  may 
be  made  ex  parte,  or  by  the  court  on  its 
own  motion,  simply  because  the  court  has 
permitted  written  objections  to  be  filed. 
Leach  v.  Pierce,  93  Cal.  614;  29  Pac.  235. 
Whenever  the  action  of  the  court  is  de- 
pendent on  the  existence  of  extrinsic  facts 
presented  to  it  for  determination  in  the 
form  of  pleadings,  which  are  to  be  decided 
by  it  in  conformity  with  the  preponderance 
of  evidence,  an  issue  of  fact  arises,  which, 
under  its  decision,  may  be  re-examined  on 
a  motion  for  a  new  trial.  Estate  of  Bau- 
quier,  S8  Cal.  302;  26  Pac.  178,  373,  532 
A  finding  as  to  attorneys'  fees,  being  on 
an  issue  raised  by  law,  though  no  refer 
ence  is  made  to  it  in  the  pleadings,  is  re 
viewable  on  a  motion  for  a  new  trial 
Hooper  v.  Fletcher,  145  Cal.  375;  79  Pac 
418.  A  new  trial  is  authorized  in  proceed 
ings  for  changing  the  boundaries  of  a  city 
under  §  803,  post,  where  other  questions  of 
fact  than  those  relating  to  such  proceed- 
ings are  involved,  or  errors  of  law  com- 
mitted at  the  trial.  People  v.  Oakland,  123 
Cal.  145;  55  Pac.  772;  People  v.  Sutter 
Street  Ry.  Co.,  117  Cal.  604;  49  Pac.  736; 
People  V.  Eodgers,  118  Cal.  393;  46  Pac. 
740;  50  Pac.  668.  Where  only  two  of  the 
issues  were  submitted  to  the  jury  and 
passed  upon  by  their  verdict,  a  motion  for 
a  new  trial,  made  on  the  verdict,  and  be- 
fore the  decision,  is  premature.  Estate  of 
McKenna,  138  Cal.  439;  71  Pac.  501;  and 
see  Morris  v.  De  Celis,  41  Cal.  331;  Gaze  v. 
Lynch.  42  Cal.  362;  Baker  v.  Borello,  131 
Cal.  615;  63  Pac.  914.  A  party  may  move 
for  a  new  trial  on  a  single  issue.  Duff  v. 
Duff,  101  Cal.  1;  35  Pac.  437;  San  Diego 
LaD<l  etc.  Co.  v.  Neale,  78  Cal.  63;  3 
L.   E.   A.   83;   20   Pac.   372.     When   a  new 


trial  is  granted  as  to  only  one  of  several 
issues,  it  opens  for  examination  only  that 
issue:  the  determination  of  the  other  is- 
sues remains  in  the  record,  and  cannot  be 
retried;  the  only  remedy  of  the  moving 
party  as  to  those  issues  is  to  appeal  from 
the  part  of  the  order  denying  the  motion 
for  a  new  trial  as  to  them.  Estate  of  Everts, 
163  Cal.  449;  125  Pac.  1058.  This  section 
does  not  apply  to  a  default,  as  the  re- 
examination is  where  there  has  been  a 
previous  trial  of  an  issue  of  fact  (Foley 
V.  Foley,  120  Cal.  33;  65  Am.  St.  Pep.  147'; 
52  Pac.  122);  and  a  new  trial  is  properly 
denied,  where  the  matter  is  admitted  by 
the  pleadings,  since,  in  such  case,  there  is 
no  issue  to  try,  even  though  the  findings 
were  made  on  a  supposititious  issue.  Es- 
tate of  Doyle,  73  Cal.  564;  15  Pac.  125. 
Where  all  the  facts  are  agreed  on,  there 
is  no  issue  of  fact  to  be  re-examined,  and 
no  ground  for  a  new  trial.  Gregory  v. 
Gregory,  102  Cal.  50;  36  Pac.  364.  There 
is  no  ground  for  a  new  trial  where  the 
judgment  is  wholly  upon  stipulated  facts. 
Quist  V.  Sandman,  154  Cal.  748;  99  Pac. 
204.  Where  every  material  issue  of  fact 
was  decided  in  favor  of  the  losing  party,. 
a  new  trial  will  not  be  granted  (Sharp  v. 
Bowie,  142  Cal.  462;  76  Pac.  62) ;  nor  where 
there  was  no  issue  of  fact  to  be  tried,  and 
no  trial.  Fabretti  v.  Superior  Court,  77 
Cal.  305;  19  Pac.  481.  A  motion  for  a  new 
trial  is  not  a  proper  proceeding  to  review 
the  action  of  the  court  in  rendering  judg- 
ment in  a  ease  where  there  has  been  no- 
trial  upon  issues  of  fact:  in  such  case  there 
is  no  oflSce  to  be  subserved  by  a  new  trial, 
and  there  is  nothing  to  be  reviewed  upon 
appeal  from  an  order  denying  a  new  trial. 
Foley  V.  Foley,  120  Cal.  33;  65  Am.  St. 
Eep.  147;  52  Pac.  122;  Savings  and  Loan 
Society  v.  Meeks,  66  Cal.  371;  5  Pac.  624; 
Estate  of  Heldt,  98  Cal.  553;  33  Pac.  549. 
Where  no  issue  as  to  damages  is  presented 
in  an  action  for  an  injunction,  a  new  trial 
cannot  be  granted  to  try  the  question  of 
damages.  Bigelow  v.  Los  Angeles,  141  Cal. 
503;  75  Pac.  111.  Where  no  verdict  was 
rendered  by  the  jury  for  or  against  the  de- 
fendant, no  new  trial  can  be  had.  Benja- 
min v.  Stewart,  61  Cal.  60.j.  A  motion  for 
a  new  trial  is  not  directed  at  the  judg- 
ment, but  at  the  verdict  or  other  decision, 
of   fact.     Martin   v.   Matfield,   49   Cal.   42;. 


721 


OBJECTION   TO   PLEADINGS   AND   JUDGMENT,    HOW   TAKEN. 


§  GoS 


Boston   Tunnel    Co.    v.   MeKenzie,   67    Cal 
485;  cS  Pnc.  L'2. 

Objections  by  demurrer  or  motion.     Ob 
jections    to    form    of   action    or     pli'aiiin<^s 
either  by  demurrer  or  motion,  or  objection 
to  evidence,  or  that  the  trial  was  by  jury 
or  that  the  verdict  did  not  cover  the  ma 
terial   is.siies   and   is   therefore   insudicient 
cannot  be  made  on  motion  for  a  new  trial 
but  only  on  appeal  from  judgment.    Morse 
V.  Wilson,  138  Cal.  5.58;   71  Pac.  801;  and 
see  Riverside  Water  Co.  v.  Gage,  lOS  Cal 
240;  41  Pae.  299.     The  ruling  on  a  demur 
rer  ma}'  be  reviewed  on  an  aiijieal  from  the 
judunient,   but  not   on   an   appeal   from   an 
order    denying    a    new    trial    (Heilbron    v. 
Centerville   etc.   Ditch    Co.,   76   Cal.   8;    17 
Pae.  932;  Bode  v.  Lee,  102  Cal.  583;  36  Pac. 
936;  Evans  v.  Paige,  102  Cal.  132;  36  Pac. 
406);   and  where  a  demurrer  to  the  com- 
plaint has  been  sustained,  a  motion  for  a 
new  trial  does  not  lie,  the  demurrer  raising 
onlv  a  question  of  law.    Jones  v.  Chalfant, 
128  Cal.  334;  00  Pac.  852.     The  sufficiency 
of  a  complaint  cannot  be  considered  on  an 
appeal  from  an  order  denying  or  granting 
a  new  trial.    Hook  v.  Hall,  2   Cal.  Unrep 
459;  6  Pac.  422;  Brison  v.  Brison,  90  Cal 
323;    27   Pac.    186;   Bode   v.   Lee,   102   Cal 
583;   36  Pac.  936;   Eauer  v.  Fay,   128  Cal 
523;   61   Pac.   90;   Eeclamation   District   v 
Thisby,   131   Cal.   572;    63  Pac.   918;   Peta 
lunia  Paving  Co.  v.  Singley,  136  Cal.  616 
69  Pac.  426;  Lambert  v.  Marcuse,  137  Cal 
44;  69  Pac.  620;  Kaiser  v.  Dalto,  140  Cal 
167;  73  Pac.  82S;   Swett  v.  Gray,  141  Cal 
63;   74  Pac.  439;  Swift  v.  Occidental  Min 
ing   etc.    Co.,    141    Cal.    161;    74   Pac.    700 
Thompson  v.  Los  Angeles,  125  Cal.  270;  57 
Pac.    1015.     The    sufficiency    of  the    com- 
plaint  or  the   findings  cannot  be  inquired 
into  on  an  appeal  from  an  order  denying 
a  new  trial,  but  only  the  question  whether 
the  findings  are  supported  bv  the  evidence. 
Brison  v.  Brison,  90  Cal.  32.3;  27  Pac.  186; 
Thompson  v.  Los  Angeles,  125  Cal.  270;  57 
Pac.  1015;  Eauer  v..  Fay,  128  Cal.  523;  61 
Pac.   90;    Eeclamation   District   v.   Thisby, 
131  Cal.  572;  63  Pac.  918;  Petaluma  Pav- 
ing Co.  v.   Siuglev,  136   Cal.   616;   69  Pac. 
426;  Kaiser  v.  Dalto,  140  Cal.  167;  73  Pac. 
828;   Swift  v.  Occidental  Mining  etc.  Co., 
141  Cal.  161;  74  Pac.  700;  Burns  v.  Schoen- 
feld,  1  Cal.  App.  121;  81  Pac.  713.     There 
can  be  no  new  trial  of  a  motion.    Harper 
V.    Hildreth.  99    Cal.   265;   33    Pac.   1103; 
Doyle  V.   Republic  Life  Ins.   Co.,   125   Cal. 
15;  57  Pac.  667. 

Conclusions  of  law.  Conclusions  of  law 
drawn  from  facts  cannot  be  reviewed  on 
a  motion  for  a  new  trial.  Pacific  Mut.  Life 
Ins.  Co.  V.  Fisher,  106  Cal.  224;  39  Pac. 
758;  and  see  Brison  v.  Brison,  90  Cal.  323; 
27  Pac.  186. 

Sufficiency  of    verdict.     The    eufTiciency 
of     a     verdict     to     support     a     judgment, 
whether  treated  as  a  verdict  or  as  a  find- 
1  Fair.— 46 


ing,  cannot  be  considered  on  an  appeal 
from  an  order  denying  a  motion  for  a  now 
trial.  Morse  v.  Wilson,  138  Cal.  558;  71 
Pac.  Sdl. 

Objection  to  judgment.  A  motion  for  a 
new  trial  is  not  necessary  to  review  an  ob- 
jection to  a  judgment  which  appears  on 
the  face  of  the  fimlings.  California  Nat. 
Bank  v.  Ginty,  108  Cal.  148;  41  Pac.  38. 
That  an  erroneous  judgment  drawn  from 
findings  of  fact,  which  are  not  complained 
of,  cannot  be  corrected  by  means  of  a  mo- 
tion for  a  new  trial,  coneeiled,  but  not 
decided.  Knight  v.  Roche,  56  Cal.  15;  .len- 
kins  v.  Frink,  30  Cal.  586;  89  Am.  Dec. 
134.  Where  a  judgment  is  upon  stipulated 
facts,  an  objection  that  the  decision  is 
against  law  is  reviewable  only  upon  aj'jieal 
from  the  judgment.  Quist  v.  Sandman,  154 
Cal.  748;  99  Pac.  204.  Errors  apjiarent  on 
the  face  of  the  judgment  roll  will  not  be 
reviewed  on  an  appeal  from  an  oriler  deny- 
ing a  motion  for  new  trial,  but  only  on  an 
ap{ieal  from  the  judgment  (Estate  of  Wcs- 
terfield,  96  Cal.  il3;  30  Pac.  1104;  and  see 
Thompson  v.  Patterson,  54  Cal.  542);  and 
will  be  considere<l,  even  if  not  named  in 
the  specification  of  errors  in  the  statement. 
Heinlen  v.  Heilbron,  71  Cal.  557;  12  Pac. 
673;  and  see  Sharp  v.  Daugnev,  33  Cal. 
505;  Shepard  v.  McNeil,  38  Cal.  72;  Patter- 
son v.  Sharp,  41  Cal.  133.  A  motion  may 
be  made,  in  partition  proceedings,  for  a 
new  trial:  if  there  is  error  in  an  interlocu- 
tory decree  in  partition,  it  must  be  cor- 
rected by  motion  for  a  new  trial  or  by  an 
appeal.    Tormey  v.  Allen,  45  Cal.  119. 

Failure  to  file  findings.  Failure  to  file 
findings  within  six  months  after  the  case 
had  been  submitted  for  decision  and  the 
court  had  ordered  judgment  cannot  be  re- 
viewed on  appeal  from  an  order  denying 
a  new  trial.  Kepfler  v.  Kepfler,  134  Cal. 
205;  66  Pac.  208;  and  see  Brison  v.  Brison, 
90  Cal.  323;  27  Pac.  186;  Rauer  v.  Fay.  12S 
Cal.  523;  61  Pac.  90;  Fogarty  v.  Fogarty, 
129  Cal.  46;  61  Pac.  570;  Owen  v.  Pomona 
Land  etc.  Co.,  131  Cal.  530;  63  Pac.  850^ 
64  Pac.  253;  Reclamation  District  v.  This- 
by, 131  Cal.  572;  63  Pac.  918. 

Nature  of  actions  or  proceedings  as  af- 
fecting right  to  new  trial.  A  bank  against 
which  a  judgment  is  rendered,  to  force  it 
into  involuntary  liquidation,  under  the 
Bank  Commissioners'  Act,  has  a  right  to 
move  for  a  new  trial.  People  v.  Bank  of 
San  Luis  Obispo,  152  Cal.  261;  92  Pac.  481. 
Reconsideration  of  disbarment  proceedings 
in  the  appellate  court  cannot  be  had  on 
motion  for  a  new  trial.  In  re  Philbrook, 
108  Cal.  14;  40  Pac.  106;  Disbarment  of 
Tyler,  71  Cal.  353;  12  Pac.  289;  13  Pac. 
169;  Grangers'  Bank  v.  Superior  Court,  101 
Cal.  198;  35  Pac.  642.  The  provisions  of 
the  Practice  Act,  in  relation  to  new  trials, 
liad  no  application  to  a  motion  to  set  aside 
the  report  of  commissioners  in  proceedings. 


§657 


NEW   TRIALS. 


722 


to  condemn  land.    Central  Pacific  R.  R.  Co. 
V.  Pearson^  35  Cal.  247. 

Reversal  of  order  denying  a  new  trial, 
effect  of.  The  reversal  of  an  order  denying 
a  new  trial,  on  the  ground  assigned,  that 
the  findings  are  not  justified  by  the  evi- 
dence, has  the  effect  of  awarding  a  new 
trial  to  the  parties.  Riley  v.  Loma  Vista 
Ranch  Co.,  5  Cal.  App.  25;"  89  Pac.  849. 


Evidence     admissible     at     new     trial. 

Where  a  new  trial  is  awarded  on  appeal, 
the  case  is  before  the  court  below  for  trial 
de  novo  of  all  issues  of  fact,  upon  such 
proper  amendments  to  the  pleadings  as  the 
court  may  allow;  and  the  parties  have  the 
right  to  introduce  any  and  all  competent 
evidence.  Riley  v.  Loma  Vista  Ranch  Co., 
5  Cal.  App.  25;  89  Pac.  849. 


§  657.  When  a  new  trial  may  be  granted.  The  former  verdict  or  other 
decision  may  be  vacated  and  a  new  trial  granted,  on  the  application  of  the 
party  aggrieved,  for  any  of  the  following  causes,  materially  affecting  the 
substantial  rights  of  such  party: 

1.  Irregularity  in  the  proceedings  of  the  court,  jury,  or  adverse  party,  or 
any  order  of  the  court  or  abuse  of  discretion  by  which  either  party  was 
prevented  from  having  a  fair  trial; 

2.  Misconduct  of  the  jury;  and  whenever  any  one  or  more  of  the  jurors 
have  been  induced  to  assent  to  any  general  or  special  verdict,  or  to  a  find- 
ing on  any  question  submitted  to  them  by  the  court,  by  a  resort  to  the 
determination  of  chance,  such  misconduct  may  be  proved  by  the  affidavit  of 
any  one  of  the  jurors ; 

3.  Accident  or  surprise,  which  ordinary  prudence  could  not  have  guarded 
against ; 

4.  Newly  discovered  evidence,  material  for  the  party  making  the  appli- 
cation, which  he  could  not,  with  reasonable  diligence,  have  discovered  and 
produced  at  the  trial; 

5.  Excessive  damages,  appearing  to  have  been  given  under  the  influence 
of  passion  or  prejudice; 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or  other  decision, 
or  that  it  is  against  law ; 

.  7.  Error  in  law,   occurring   at  the  trial  and  excepted  to  by   the  party 
making  the  application. 


How  application  to  be  made.    Post,  §  658. 

Discretion.  Court  may  grant  new  trial  of  its 
own  motion.    Post,  §  G61!. 

Verdict  against  law.    See  post,  §  662. 

Legislation  §  657.  Enacted  March  11,  1872; 
"based  on  Practice  Act,  §  193  (New  York  Code, 
§  21)4),  as  amended  by  Stats.  18G2,  p.  38,  which 
had,  (1)  in  the  introductory  paragraph,  the  word 
"said"  instead  of  "such";  (2)  in  subd.  2,  had 
(a)  the  word  "shall"  before  "have  been,"  (b) 
the  words  "or  questions"  after  "question,"  (c) 
the  word  "affidavits"  instead  of  "affidavit,"  and 
(d)  the  words  "or  more"  after  "any  one";  (3) 
in  subd.  6,  omitted  the  word  "it"  before  "is 
against  law,"  the  last  evidently  an  error,  as  the 
word   "it"   is  in  the   original   section   of   1851. 

Construction  of  section.  This  section  ap- 
plies to  an  action  brought  under  the  act  of 
March  23,  1901,  against  the  state,  to  re- 
cover a  bounty.  San  Francisco  Law  etc. 
Co.  V.  State,  141  Pal.  354;  74  Pac.  1047. 

In  what  classes  of  cases  motion  proper. 
A  motion  for  a  new  trial  is  jiroper  in  pro- 
ceedings for  partial  distribution.  Estate  of 
Sutro,  1.52  Cal.  249;  92  Pac.  480,  1027. 
A  motion  for  a  new  trial  of  some  probate 
proceedings  will  not  lie,  but  there  may  be 
a  new  trial  of  certain  issues  joined  in  such 
proceedings.   Shiftman  v.  Unangst,  150  Cal. 


425;    88   Pac.    1090;    Carter   v.   Waste,    159 
Cal.  23;  112  Pac.  727. 

The  decision,  what  is.  The  "decision" 
which  may  be  vacated  is  that  which  is 
given  on  the  original  trial  of  the  question 
of  fact,  and  on  which  the  judgment  is  to 
be  entered.  Brison  v.  Brison,  90  Cal.  323; 
27  Pac.  186.  Until  the  findings  are  signed 
and  filed,  there  is  no  decision,  and  conse- 
quently nobody  is  "aggrieved";  so  that  a 
notice  of  motion  for  a  new  trial  before  the 
findings  are  signed  is  premature  and  in- 
effectual. Dominguez  v.  Maseotti,  74  Cal. 
269;  15  Pac.  773;  and  see  Mahoney  v. 
Caperton,  15  Cal.  313;  Bates  v.  Gage,  49 
Cal.  126;  Hinds  v.  Gage,  56  Cal.  486; 
Spottiswood  V.  Weir,  66  Cal.  525;  6  Pac. 
381.  The  decision  consists  of  findings  of 
fact  and  conclusions  of  law,  and  may  be 
set  aside  and  a  new  trial  granted  for  cer- 
tain causes;  hence,  the  judgment  may  be 
set  aside.  Sawyer  v.  Sargent,  65  Cal.  259; 
3  Pac.  872.  The  decision  of  the  court  is 
found  in  its  findings,  and  not  in  the  giving 
of  the  judgment.    Elizalde  v.   Murphy,   11 


723 


SPECIFICATION    OF   GROUNDS — AGGHIKVKI)    I'ARTY. 


§657 


-Cal.  App.  32;  in.'?  Pac.  n04.  Sorvioe  of  a 
I'opy  of  the  fiiniings  ami  Juil^jmcnt  upon 
the  attorneys  of  the  tlefoatod  party,  after 
entry  of  the  judgment,  is  a  siillicii'iit  notice 
of  the  entry  of  juilt^ment.  Kelleher  v.  Cre- 
ciat,  SO  C'ai.  3S;'  2(5  I'ac  (UO. 

Aggrieved  party,  who  is.  A  party  liav- 
ini;  no  interest  in  the  jirot'eeilini;  is  not  an 
a^firieveil  party,  and  is  not  i)rt'.indiced  by 
any  ruling  or  jud^Tiient  made  in  the  fause. 
Blythe  v.Ayres,  102  Cal.  254;  3G  Pac.  .522. 

Nature  of  motion.  A  motion  for  a  new 
trial  is  an  application  to  have  the  verdict 
or  decision  set  aside,  and  is  not  addressed 
to  the  judgment.  Wittenbrock  v.  Bellmer, 
62  Cal.  558.  The  motion  for  a  new  trial 
attacks  the  verdict,  rather  than  the  judg- 
ment; such  motion  may  be  made  jirior  to 
the  entry  of  judgment.  .lolmson  v.  Phenix 
Ins.  ('o.,"l52  Tal.  JDll;  i)2  Pac  1  S2. 

Specification  of  grounds  in  motion. 
Where  a  party  specifies  the  grounds  upon 
which  he  intends  to  rely  for  a  new  trial, 
lie  will  be  considered  as  abandoning  all 
other  grounds  not  enumerated.  Beans  v. 
Emanuelli,  36  Cal.  117.  A  general  order 
granting  a  new  trial  must  be  sustained, 
if  good  on  any  of  the  grounds  upon  whi(di 
the  motion  was  based.  Smith  v.  Hyer,  11 
Cal.  App.  597;  105  Pac.  787.  A  party  rely- 
ing upon  a  failure  to  find  upon  material 
issues  must  make  his  motion  for  a  new 
trial  on  the  ground  that  the  decision  is 
"against  law":  no  further  specification  is 
required.  Knoeh  v.  Haizlip,  163  Cal.  146; 
124  Pac.  998. 

Irregularity  in  proceedings  of  court. 
Any  irregularity  preventing  a  fair  trial 
is  ground  for  a  new  trial.  Piercv  v.  Piercy, 
149  Cal.  163;  86  Pac.  507.  The  language 
of  this  section  is  sufficiently  broad  to  in- 
clude any  departure  by  the  court  from  the 
<lue  and  orderly  method  of  disposition  of 
an  action  by  which  the  substantial  rights 
of  a  party  have  been  materially  affecteil, 
where  such  departure  is  not  evidenced  by 
a  ruling  or  order  that  may  be  made  the 
subject  of  an  exception.  Gay  v.  Torrance, 
145  Cal.  144;  78  Pac.  540.  This  ground 
for  a  new  trial  is  intended  to  refer  to 
matters  which  an  ai^jiellant  cannot  fully 
present  by  exception  taken  during  the 
progress  of  the  trial,  and  which  must  ap- 
pear by  affidavit.  Woods  v.  Jensen,  130 
Cal.  200;  62  Pac.  473.  The  appearance 
of  a  minor  by  guardian  ad  litem,  with- 
out the  authority  of  an  order  of  court,  is 
an  irregularity  which  may  be  raised  by 
motion  for  a  new  trial.  Emeric  v.  Al- 
varado,  64  Cal.  529;  2  Pac.  418.  The  ac- 
tion of  the  court  in  interrupting  counsel, 
and  in  an  irregular  way  controlling  the 
conduct  of  the  case  on  the  side  of  the  de- 
fendant, and  virtually  threatening  to  preju- 
■flice  his  testimony,  is  an  irregularity 
(Pratt  V.  Pratt,  141  Cal.  247;  74  Pac. 
742),  as  is  also  personal  misconduct  of 
^the  judge,  of  such  a  nature  as  to  make  it 


apparent  that  a  substantial  right  has  been 
materially  affected  thereby  ((Jay  v.  Tor- 
rance, 145  Cal.  144;  78  Pac.  540)";  but  im- 
proper que.stionH  asked  by  the  court  cannot 
be  urged  as  a  ground  of  "irregularity  in 
the  i)rocoeding8  of  the  court."  Woods  v. 
Jensen,  130  Cal.  200;  62  Pac.  473.  Lan- 
guage of  the  court,  in  ruling  upon  evi- 
dence, which  language  is  projuT  and 
emboilics  a  correct  statement  of  the  law, 
does  not  constitute  misionduct  on  its  part. 
Blaeholder  v.  Guthrie,  17  Cal.  Ajip.  297; 
119  I'ac.  524.  Where  instructions,  though 
correct,  may  have  misled  the  jury,  a  new 
trial  may  be  granted  on  that  ground. 
Briggs  V.  Hall,  20  Cal.  Aj^p.  372;  129  I'ac. 
288.  A  finding  outside  of  the  issues  is 
not  ground  for  a  new  trial.  Power  v.  Pair- 
banks,  146  Cal.  611;  80  Pac.  1075.  A  ju.lg- 
ment  must  be  reversed,  where  there  are  no 
findings  to  supj)ort  it.  Rilev  v.  Loma  Vista 
Ranch  Co.,  5  Cal.  App.  25;  89  Pac.  849. 
A  judgment  is  unauthorizeil,  where  there 
are  no  findings,  and  there  is  no  waiver  of 
findings:  it  cannot  be  deemed  supported 
by  former  findings  set  aside  upon  reversal. 
Riley  v.  Loma  Vista  Ranch  Co.,  5  Cal.  App. 
25;  89  Pac.  849.  A  failure  to  file  findings 
for  more  than  six  months  after  judgment 
was  ordered  is  not  ground  for  a  new  trial. 
Kepfler  v.  Kepfler,  134  Cal.  205;  66  Pac. 
208. 

Abuse  of  discretion.  Where  the  or<ler 
granting  a  new  trial  is  general,  it  will  not 
be  reversed,  unless  the  order  itself  is  an 
abuse  of  discretion  (Von  Schroeder  v. 
Spreckels,  147  Cal.  186;  81  Pac.  515;  and 
see  Newell  v.  Desmond,  63  Cal.  242;  Ander- 
son V.  Hiushaw,  110  Cal.  6S2;  43  Pac. 
389) ;  nor  will  an  order  refusing  a  new 
trial  be  reversed,  where  there  is  no  abuse 
of  discretion,  although,  if  a  new  trial  had 
been  granted,  it  would  not  have  been  dis- 
approved. Anderson  v.  Ilinshaw,  110^  Cal. 
682;  43  Pac.  3S9.  Where  the  court  grants 
a  new  trial  without  any  legal  reasons,  its 
discretion  has  been  abuseil.  Le  Tourueux 
V.  Gilliss,  1  Cal.  App.  546;  82  Pac.  627. 

Order  of  court,  when  not  ground  for. 
An  order,  not  made  in  the  jiresence  of  the 
jury,  committing  the  defendant  on  a  charge 
of  subornation  of  perjury,  is  not  ground 
for  a  new  trial  (Sheehan  v.  Hammond.  2 
Cal.  Ajip.  371;  84  Pac.  340);  nor  is  the 
granting  of  a  motion  to  strike  out  parts 
or  all  of  a  jtleailing.  Stockton  Iron  Works 
V.  Walters.  IS  Cal.  App.  373;   123  Pac.  2t0. 

Misconduct  of  jury.  The  granting  of  a 
new  trial  for  misconduct  of  the  jury,  such 
as  may  be  shown  by  affidavit,  is  wholly 
different  anil  apart  from  the  right  given 
by  the  statute  to  grant  relief  on  the 
ground  of  excessive  damages:  the  former 
contemplates  some  overt  act  of  impro- 
priety, while  an  excessive  verdict  does  not 
necessarily  imply  misconduct,  but  simj>Iy 
that  the  result  has  been  indued,  perhaps 


§657 


NEW  TRIALS. 


724 


unconsciously,  through  excited  feelings  or 
prejudice.  Harrison  v.  Sutter  Street  Ey. 
Co.,  116  Cal.  156;  -17  Pac.  1019.  The  con- 
duet  of  jurors  in  conversing  with  parties 
to  the  action,  and  in  drinking  and  carous- 
ing with  one  of  the  prevailing  parties,  is 
misconduct  entitling  the  losing  party  to  a 
new  trial,  notwithstanding  a  counter-show- 
ing that  the  same  conduct  was  indulged  in 
by  both  parties,  and  that  the  verdict  was 
uninfluenced  by  such  misconduct.  Wright 
V.  Eastlick,  125  Cal.  517;  58  Pac.  87.  Mere 
temporary  separation  of  the  jury  is  not 
suflScient  ground  on  w^hich  to  set  aside  a 
verdict,  if  the  moving  party  is  not  preju- 
diced, nor  his  substantial  rights  materially 
affected  (Estate  of  McKenna,  143  Cal.  580; 
76  Pac.  461);  nor  is  misconduct  of  a  juror, 
of  such  a  trifling  nature  that  it  could  not, 
in  its  very  nature,  have  been  prejudicial 
to  the  moving  party,  sufficient.  Siemsen  v. 
Oakland  etc.  Ey.,  134  Cal.  494;  66  Pac.  672. 
A  new  trial  will  not  be  granted  on  account 
of  immaterial  misconduct  of  the  jury. 
Kimic  V.  San  Jose  etc.  Ey.  Co.,  156  Cal. 
379;  104  Pac.  986.  It  is  not  misconduct, 
in  the  jury-room,  for  the  foreman  to  ex- 
amine with  a  magnifying-glass  a  memo- 
randum-book kept  by  the  attorney  for  the 
proponent  of  a  will,  and  to  inform  the  jury 
what  he  observed  in  the  use  of  the  same. 
Estate  of  Thomas,  155  Cal.  488;  101  Pac. 
798.  In  an  action  for  personal  injuries, 
received  while  ascending  in  an  elevator, 
the  expression  of  a  desire,  on  the  part  of 
one  of  the  jurors,  to  view  the  premises,  is 
not  such  misconduct  as  to  warrant  the 
granting  of  a  new  trial.  Judd  v.  Letts, 
158  Cal.  359;  111  Pac.  12.  In  an  action 
to  recover  damages  for  injuries  to  a  leased 
building,  the  mere  fact  that  the  jury,  on 
going  to  lunch,  was  casually  led  past  such 
building,  does  not  warrant  a  new  trial  on 
the  ground  that  the  jury  had  inspected  the 
building  without  the  consent  of  the  de- 
fendant. Higgins  V.  Los  Angeles  Gas  etc. 
Co.,  159  Cal.  651;  34  L.  R.  A.  (N.  S.)  717; 
115  Pac.  313.  The  mere  fact  that  a  juror, 
of  his  own  motion,  visited  the  scene  of  the 
accident,  during  the  progress  of  the  trial, 
which  fact  was  known  to  the  defendant 
prior  to  the  verdict,  cannot  be  relied  upon 
by  the  defendant  as  a  ground  for  a  new 
trial.  Zibbell  v.  Southern  Pacific  Co.,  160 
Cal.  237;  116  Pac.  513.  The  jury's  disre- 
gard of  an  erroneous  instruction  is  not 
ground  for  a  new  trial.  Western  Pacific 
Land  Co.  v.  Wilson,  19  Cal.  App.  338;  125 
Pac.  107(;. 

Verdict  determined  by  chance.  Where 
the  assent  of  some  of  the  jurors  was  se- 
cured by  drawing  lots,  the  verdict  is  a 
chance  verdict,  and  should  be  set  aside 
(Levy  V.  Brannan,  39  Cal.  485);  and  also 
where  the  verdict  was  determined  by  the 
guess  of  heads  or  tails  of  a  coin.  Donner 
V.  Palmer.  23  CaJ.  40.  "Chance"  is  hazanl, 
risk,   or   the   result   or   issue   of   uncertain 


and  unknown  conditions  or  forces:  an 
average  verdict,  arrived  at  by  dividing  the 
sum  of  the  various  amounts  which  each 
juror  believed  proper,  by  the  number  of 
the  jurors,  under  a  prior  agreement  that 
such  average  verdict  should  be  the  verdict 
of  the  jury  without  further  consultation, 
is  a  chance  verdict,  and  should  be  set  aside 
(Dixon  V.  Pluns,  98  Cal.  384;  35  Am.  St. 
Eep.  180;  20  L.  E.  A.  698;  33  Pac.  268; 
Weinburg  v.  Somps,  4  Cal.  Unrep.  10;  33 
Pac.  341;  and  see  Turner  v.  Tuolumne 
County  Water  Co.,  25  Cal.  397;  Boyce  v. 
California  Stage  Co.,  25  Cal.  460) ;  but 
the  verdict  is  not  a  chance  verdict,  where 
the  jurors  agreed  to  divide  the  aggregate 
amount  by  twelve,  and  where  it  was  under- 
stood that  they  were  not  to  be  bound  by 
the  result,  and  after  the  amount  was  so 
ascertained  the  jurors  unanimously  agreed 
to  adopt  it  as  the  sum  to  be  returned. 
Hunt  V.  Elliott,  77  Cal.  588;  20  Pac.  132; 
McDonnell  v.  Pescadero  etc.  Stage  Co.,  120 
Cal.  476;  52  Pac.  725;  and  see  Turner  v. 
Tuolumne  County  Water  Co.,  25  Cal.  397; 
Boyce  v.  California  Stage  Co.,  25  Cal.  460. 

Juror  cannot  impeach  verdict,  except 
when  it  results  from  chance.  The  affidavit 
of  a  juror  cannot  be  received  to  impeach 
the  verdict,  except  in  the  single  case  of  a 
resort  to  the  determination  of  chance 
(People  V.  Azoff,  105  Cal.  632;  39  Pac.  59; 
People  V.  Findley,  132  Cal.  301;  64  Pac. 
472;  Saltzman  v.  Sunset  Telephone  etc.  Co.,. 
125  Cal.  501;  58  Pac.  169;  and  see  Turner 
V.  Tuolumne  County  Water  Co.,  25  Cal. 
397;  Kimic  v.  San  Jose  etc.  Ey.  Co.,  156 
Cal.  379;  104  Pac.  986);  and  the  fact  that 
the  affidavit  is  made  by  a  dissenting  juror 
does  not  change  the  rule.  Saltzman  v.  Sun- 
set Telephone  etc.  Co.,  125  Cal.  501;  58 
Pac.  169.  An  average  verdict  may  be 
shown  to  be  a  chance  verdict,  by  the  affi- 
davit of  a  juror.  Weinburg  v.  Somps,  4 
Cal.  Unrep.  10;  33  Pac.  341;  and  see  Dixou 
v.  Pluns,  98  Cal.  384;  35  Am.  St.  Eep.  180; 
20  L.  E.  A.  698;  33  Pac.  268.  Misconduct 
by  reading  newspaper  reports  of  the  trial 
cannot  be  shown  by  the  affidavit  of  a  juror 
(People  V.  Azoff,  105  Cal.  632;  39  Pac. 
59) ;  nor  can  individual  jurors  impeach  the 
verdict  by  showing  that  facts  not  in  evi- 
dence were  considered.  Fredericks  v.  Judah, 
73  Cal.  604;  15  Pac.  305;  and  see  Polhemus 
V.  Heiman,  50  Cal.  438.  The  aflSdavit  of  a 
third  person,  showing  declarations  or  ad- 
missions of  a  juror,  made  at  the  close  of 
the  trial,  and  tending  to  impeach  the  ver- 
dict, cannot  be  received  in  evidence;  and 
the  rule  is  not  <lift'erent,  whether  the  mis- 
conduct was  before  or  during  the  retire- 
ment (Siemsen  v.  Oakland  etc.  Ey.,  134 
Cal.  494;  66  Pac.  672;  Kimic  v.  San  Jose- 
etc.  Ey.  Co.,  156  Cal.  379;  104  Pac.  986); 
nor  can  a  verdict  be  impeached  by  state- 
ments of  jurors  regarding:  such  misconduct. 
People  V.  Findley,  132  Cal.  301;  64  Pac. 
472.     AflSdavits  of  jurors  may  be  used  to 


725 


IMPEACHMENT    OF    VERDICT    BY    JL'RV. 


§Go7 


^lisprove  or  explain  alle^a^d  niiscoiicluct  on 
their  part,  and  such  allidavits  cannot  be 
used,  where  the  misconduct  is  ailmitteil, 
to  show  that  the  verdict  was  not  inHuenccd 
thereby.  Kiniic  v.  San  Jose  etc.  Hv.  Co., 
156  Cal.  379;  104  Pac.  98lj.  Where  the 
affidavit  of  a  juror  as  to  obtaining  au 
-avora{,'e  verdict  is  overcome  by  counter- 
allidavits  of  two  other  jurors,  a  new  trial 
is  i)roi)erly  refuseil  (Hunt  v.  Elliott,  77 
Cal.  oSS;  "20  Pac.  l.']2;  and  see  Hoare  v. 
Ilindley,  49  Cal.  274);  and  an  affidavit  of 
one  juror,  showing  that  an  a\erage  ^■ordict 
■was  intended  to  control  the  jury,  may  be 
overcome  by  counter-affiila\  its  of  other 
jurors  (McDonnell  v.  Pescadero  etc.  Stage 
■Co.,  120  Cal.  476;  52  Pac.  725) ;  and  an  order 
granting  a  new  trial  on  the  ground  that 
the  verdict  was  a  chance  verilict  will  not 
Tdb  disturbed,  though  the  affidavit  of  two 
non-concurring  jurors  that  it  was  a  chance 
verdict  is  contra<iicted  by  seven  concurring 
jurors.  King  v.  Elton,  2  Cal.  App.  145;  S."5 
Pac.  261.  An  affidavit  by  a  juror,  that 
the  verdict  was  determined  by  chance,  and 
"that  he  was  induced  to  assent  thereto  in 
that  manner,  is  not  conclusive  upon  the 
trial  court;  and  where  the  court  finds,  upon 
■conflicting  evidence,  that  the  verdict  was 
not  a  chance  verdict,  its  action  will  not 
"be  disturbed  on  appeal.  Dixon  v.  Pluns, 
101  Cal.  511;  35  Pac.  1030. 

Accident  or  surprise.  The  "surprise" 
■contcmiilated  by  this  section  and  §  473, 
ante,  is  "some  condition  or  situation  in 
which  a  party  to  a  cause  is  unexpectedly 
placed  to  his  injury,  without  any  default 
•or  negligence  of  his  own  which  ordinary 
prudence  could  not  have  guarded  against." 
Porter  v.  Anderson,  14  Cal.  App.  716;  113 
Pac.  345;  McGuire  v.  Drew,  83  Cal.  225; 
•23  Pac.  312.  A  party  moving  for  a  new 
trial  on  the  ground  of  surj)rise  must  show 
not  only  "surprise,"  as  that  term  is  used 
in  the  statute,  but  must  also  show  that  in- 
jury resulted  to  him  from  the  cause  of  such 
^surprise.  Brandt  v.  Krogh,  14  Cal.  App. 
39;  111  Pac.  275.  Erroneous  views  of  the 
law,  or  the  advice  of  an  attorney  contrary 
to  the  ruling  of  the  court,  is  not  the  sur- 
prise for  which  a  new  trial  will  be  granted. 
Santa  Cruz  Rock  Pavement  Co.  v.  Bowie, 
104  Cal.  286;  37  Pac.  934;  Kloekenbaum 
V.  Pierson,  22  Cal.  160.  Where  a  plaintiff' 
has  an  erroneous  view  of  the  requisites  of 
a  sufficient  complaint,  the  subsequent  dis- 
covery, through  a  ru'ing  of  the  court,  of 
a  correct  view  is  not  "sur[)rise,"  upon  which 
a  motion  for  a  new  trial  may  be  founded. 
Porter  v.  Anderson,  14  Cal.  App.  716;  113 
Pac.  345.  Surprise  at  the  ruling  of  the 
court,  on  the  trial,  as  to  the  admission  of 
testimony,  or  a  mistake  of  law,  by  counsel, 
is  not  ground  for  a  new  trial.  Fuller  v. 
Hutchings,  10  Cal.  523;  70  Am.  Dec.  746; 
Xie  Tourneux  v.  Gilliss,  1  Cal.  App.  546; 
82  Pac.  627;  Porter  v.  Anderson,  14  Cal. 
App.    716;    113    Pac.    345.     The   commence- 


ment of  an  action  is  sufliicient  notice  to 
the  defendant  of  its  nature;  and  where  he 
lias  knowledge  that  certain  eviili-nct-  may 
be  used  by  the  plaintiff"  in  establishing  his 
case,  and  makes  no  motion  for  a  continu- 
ance, nor  expresses  any  surjtrise  when  such 
testimony  is  introduced,  there  is  no  sur- 
prise in  a  legal  sense.  Dewey  v.  Frank, 
62  Cal.  343.  An  attorney  is  presumed  to 
know  the  rules  of  the  court  in  which  he 
appears:  his  want  of  such  knowle.lge  does 
not  authorize  relief  from  a  judgment  taken 
against  him  on  the  ground  of  surprise. 
Brooks  V.  Johnson.  122  Cal.  56i»;  55  Pac. 
423.  If  a  i)arty  idaiming  to  be  surprise.} 
by  the  introduction  of  testimony  fails  to 
apply,  at  the  trial,  for  a  continuance  of 
the  cause,  or  to  resort  to  other  testimony, 
or  to  ask  for  any  relief  to  which  he  may 
be  entitled  under  the  circumstances,  his 
failure  is  attributable  to  his  own  fault:  he 
should  not  wait  to  move  for  a  new  trial 
on  the  groun<l  of  surprise.  Heath  v.  .Scott. 
65  Cal.  548;  4  Pac.  557;  Schellhous  v.  Hall, 
29  Cal.  605;  Turner  v.  Morrison.  11  Cal. 
21;  Delmas  v.  Martin.  39  Cal.  555;  Ferrer 
V.  Home  Mat.  Ins.  Co.,  47  Cal.  416.  The 
refusal  of  the  cashier  of  a  bank  to  testify 
in  an  action  against  the  bank,  on  the 
ground  that  his  evidence  might  tend  to  in- 
criminate him,  is  not  a  grounil  for  a  new 
trial  on  the  ground  of  surjirise,  where 
there  was  no  attempt  to  comf)el  an  answer, 
and  where  the  cashier's  successor  and  sev- 
eral directors  of  the  bank  were  also  wit- 
nesses. Nicholson  v.  Randall  Banking  Co., 
130  Cal.  533;  62  Pac.  930.  Failure  to  in- 
troduce a  deposition,  under  an  erroneous 
assumption,  induced  by  judge  and  oppos- 
ing counsel,  does  not  authorize  a  new  trial 
on  the  ground  of  surprise  (Le  Tourneux 
V.  Gilliss,  1  Cal.  App.  546;  82  Pac.  627); 
nor  does  failure  to  use  depositions,  by  the 
party  taking  them.  an<l  such  party  is  not 
bound  to  offer  them  in  evidence.  Heath 
V.  Scott,  65  Cal.  548;  4  Pac.  557.  There 
is  no  surprise  w-here  the  plaintiff  and  his 
counsel  fail  to  acquaint  themselves,  before 
the  end  of  the  trial,  with  the  terms  of  a 
lease,  on  which  the  action  was  based,  which 
was  in  their  possession,  and  produced  in 
evidence  by  them.  Borderre  v.  Den,  106 
Cal.  594;  39  Pac.  946.  Where  one  of  the 
defendant's  attorneys  was  i>r('sent  in  court 
on  the  day  the  case  was  called  for  trial, 
ami  was  informed  that  it  would  soon  lie 
called,  and  made  no  objection  to  its  being 
disposed  of  at  that  time,  and  on  the  day 
of  rendition  of  judgment  requested  the 
clerk  not  to  have  that  fact  published, 
there  is  no  showing  of  accident  or  surjirise. 
Preston  v.  I>ureka  etc.  Stone  Co.,  54  Cal. 
198.  A  judgment  cannot  be  set  aside, 
merely  on  the  grouml  of  surprise,  or  failure 
of  an  attorney  to  be  present  at  the  trial, 
unless  there  is  a  showing  that  a  different 
result  might  have  been  reached.  Brooks 
V.  Johnson,  122  Cal.  569;  55  Pac.  423.     An 


§657 


NEW   TRIALS. 


726- 


affidavit  of  surprise,  leading  to  the  with- 
holding of  testimony,  without  any  affidavit 
of  the  evidence  which  would  have  been 
introduced,  or  anything  to  make  it  appear 
that  a  different  finding  would  have  been 
made,  is  not  a  sufficient  showing  of  legal 
surprise  to  justify  a  new  trial.  Cohen  v. 
Alameda,  124  Caf.  504;  57  Pae.  377;  Fisk 
V.  Casey,  119  Cal.  643;  51  Pae.  1077. 

Excusable  neglect.  Excusable  neglect  is 
not  one  of  the  grounds  of  a  motion  for  a 
new  trial  (McGuire  v.  Drew,  S3  Cal.  225; 
23  Pae.  312);  but  where  the  neglect  is  the 
result  of  the  wrongful  procurement  of  the 
other  party,  the  rule  is  otherwise.  Piercy 
V.  Piercy,  149  Cal.  163;  86  Pae.  507. 

Failure  to  serve  amended  complaint.  The 
omission  to  serve  an  amendment  of  a  com- 
plaint is  not  ground  for  a  new  trial,  where 
no  prejudice  or  injury  results  to  the  de- 
fendant. Daly  V.  Euddell.  137  Cal.  671; 
70  Pae.  784. 

Newly  discovered  evidence.  The  provis- 
ion that  newly  discovered  evidence  shall 
be  of  a  character  materially  affecting  the 
substantial  rights  of  the  party  implies  that 
it  shall  be  such  as  to  render  a  different 
result  probable  on  a  new  trial,  and  such  is 
the  established  rule  of  the  court;  and  the 
determination  whether  the  newly  discov- 
ered evidence  would  affect  the  result  of  a 
new  trial  is  within  the  discretion  of  the 
trial  judge,  and  will  not  be  interfered  with 
on  appeal.  Oberlander  v.  Fixen,  129  Cal. 
690;  62  Pae.  254.  Newly  discovered  evi- 
dence, rendering  a  different  result  certain 
or  probable,  justifies  the  granting  of  a  new 
trial.  Oberlander  v.  Fixen,  129^  Cal.  690; 
62  Pae.  254;  Levitskv  v.  Johnson,  35  Cal. 
41;  Yon  Glahn  v.  Brennan,  81  Cal.  261;  22 
Pae.  596.  The  matter  of  granting  a  new 
trial  upon  the  ground  of  newly  discovered 
evidence  is  with  the  trial  court,  which  must 
say  whether  or  not  the  proffered  evidence, 
if  introduced,  would  affect  the  decision  of 
the  court.  Jones  v.  Lewis,  19  Cal.  App. 
575;  126  Pae.  853.  The  trial  court  must 
determine  the  effect  of  newly  discovered 
evidence  that  is  merely  cumulative;  if  it 
would  have  changed  the  result  in  the  first 
instance,  a  new  trial  should  be  granted. 
Smith  v.  Hyer,  11  Cal.  App.  597;  105  Pae. 
787.  Merely  cumulative  evidence  is  not 
sufficient  to  justify  the  granting  of  a  new 
trial  on  the  ground  of  newly  discovered 
evidence  (Christensen  v.  McBride,  4  Cal. 
LTnrep.  542;  36  Pae.  39S;  Shafer  v.  Willis, 
124  Cal.  36;  56  Pae.  635;  Galvin  v.  Palmer, 
113  Cal.  46;  45  Pae.  172;  Niosi  v.  Empire 
Steam  Laundry,  117  Cal.  257;  49  Pae.  185; 
Kuhlman  v.  Burns,  117  Cal.  469;  49  Pae. 
585;  Chalmers  v.  Sheehy,  132  Cal.  459;  84 
Am.  St.  Kep.  62;  64  Pae.  709;  Wood  v. 
Moulton,  146  Cal.  317;  80  Pae.  92;  Patter- 
son v.  San  Francisco  etc.  Ry.  Co.,  147  Cal. 
178;  81  Pae.  531);  nor  when  not  so  con- 
clusive in  its  character  as  to  raise  a  rea- 


sonable presumption  that  it  would  change 
the  result  (O'Rourke  v.  Yennekohl,  104 
Cal.  254;  37  Pae.  930;  Shafer  v.  Willis, 
124  Cal.  36;  56  Pae.  635;  Kuhlman  v. 
Burns,  117  Cal.  469;  49  Pae.  585);  and 
hence,  where  the  new  evidence  is  that  of 
but  one  more  witness  to  an  accident,  the 
discretion  of  the  trial  court  will  not  be 
disturbed  on  appeal.  O'Rourke  v.  Venne- 
kohl,  104  Cal.  254;  37  Pae.  930.  Where 
the  newly  discovered  evidence  bears  only 
on  the  question  of  the  relative  degree  of 
negligence  of  the  two  defendants  in  the- 
ease,  a  new  trial  is  properly  refused  (How- 
land  V.  Oakland  Consol.  etc.  Ry.  Co.,  110' 
Cal.  513;  42  Pae.  983);  and  also  where  the- 
new  evidence  is  designed  merely  to  con- 
tradict a  witness.  Chalmers  v.  Sheehy,  132 
Cal.  459;  84  Am.  St.  Rep.  62;  64  Pae.  709^ 
Wood  V.  Moulton,  146  Cal.  317;  80  Pae. 
92;  People  v.  Anthonv,  56  Cal.  397;  Brandt 
V.  Krogh,  14  Cal.  App.  39;  111  Pae.  275.. 
Newly  discovered  evidence,  which,  if  true, 
would  contradict  the  averments  of  the  com- 
plaint, and  tend  to  show  that  the  plaintiff 
was  mistaken  in  his  rights  when  the  ac- 
tion was  commenced,  is  not  ground  for  a 
new  trial.  Bates  v.  Bates,  71  Cal.  307;  12 
Pae.  223.  Newly  discovered  evidence,  re- 
lied on  to  obtain  a  new  trial,  should  be 
presented  in  affidavits:  it  has  no  place  in 
a  statement.  Beans  v.  Emanuelli,  36  Cal. 
117. 

Diligence  in  discovery  and  production 
of  evidence.  To  obtain  a  new  trial  on  the 
ground  of  newly  discovered  evidence,  the 
moving  party  must  show  that  he  has  used 
due  diligence  (Broads  v.  Mead,  159  Cal. 
765;  Ann.  Cas.  1912C,  1125;  116  Pae.  46; 
Rockwell  V.  Italian-Swiss  Colony,  10  Cal. 
App.  633;  103  Pae.  162;  Brandt  v.  Krogh, 
14  Cal.  App.  39;  111  Pae.  275;  Foley  v. 
Northern  California  Power  Co.,  14  Cal. 
App.  401;  112  Pae.  467;  Hawley  v.  Los 
Angeles  Creamery  Co.,  16  Cal.  App'.  50; 
116  Pae.  84;  People  v.  Maruyama,  19  Cal. 
App.  290;  125  Pae.  924);  and  it  must  be 
shown  that  the  proposed  evidence  was  not 
known  to  him  at  the  time  of  the  trial;  or, 
if  not  then  known,  could  not  with  reason- 
able diligence  have  been  discovered  and' 
produced  at  the  trial.  Olaine  v.  McGraw,. 
164  Cal.  424;  129  Pae.  460.  The  moving 
party  must  make  a  clear  case,  showing  due- 
diligence  on  his  part,  and  the  truth  and 
materiality  of  the  evidence  (Tibbet  v.  Tom 
Sue,  125  Cal.  544;  58  Pae.  160);  and  where 
the  newly  .discovered  eviilence  is  not  of 
such  a  character  as  to  put  the  moving 
party  on  inquiry,  reasonable  diligence  is 
shown  (Oberlander  v.  Fixen,  129  Cal.  690; 
62  Pae.  254;  Heintz  v.  Cooper,  104  Cal.. 
669;  38  Pae.  511);  and  where  it  is  of  such 
a  character  that  it  might  have  remained 
undiscovered  even  after  the  greatest  dili- 
gence of  the  moving  ])arty,  though  known, 
by   the    opposing   party,    or   suppressed   byr- 


727 


NEW   EVIDENCE — DILIGENCE — EXCESSIVE  DAMAGES. 


§  657 


him,  and  would  be  likely  to  change  the  re- 
sult, a  new  trial  shouM  be  granted.  Blewett 
V.  Miller.  131  Cal.  149;  G;5  I'ae.  157.  "Dili- 
gence" is  a  relative  term,  incapable  of 
exact  definition,  and  dei)en<ls,  essentially, 
upon  the  particular  circumstances  of  each 
case;  and  the  absence  of  a  showing  of 
diligence  must  be  very  marked,  to  justify 
an  interference  with  the  exercise  of  dis- 
cretion of  the  trial  court  (Ileintz  v.  Cooper, 
104  Cal.  668;  38  Pac.  511);  hence,  the  ques- 
tion whether  the  evidence  could,  with  rea- 
sonable diligence,  have  been  discovered 
and  jjroduced  at  the  trial,  is  for  the  trial 
judge,  and  his  <letermination  is  conclusive 
on  appeal,  unless  for  abuse  of  discretion 
(Oberlander  v.  Fixen,  129*Cal.  690;  62  Pac. 
254);  and  the  action  of  the  trial  court  will 
not  be  disturbed,  except  upon  a  clear 
showing  of  an  abuse  of  discretion.  Rock- 
well V.  Italian-Swiss  Colony,  10  Cal.  App. 
633;  103  Pac.  162;  Smith  v.  Hyer,  11  Cal. 
App.  597;  105  Pac.  787.  Evidence  cannot 
be  deemed  newly  discovered,  where  there 
was  ample  time,  before  trial,  within  which 
to  ascertain  the  facts.  Gallatin  v.  Corning 
Irrigation  Co.,  163  Cal.  405;  Ann.  Cas. 
,1914A,  74;  126  Pac.  864.  Where  the  evi- 
dence was  in  the  possession  of  the  moving 
party  while  the  case  was  pending,  and  he 
did  not  avail  himself  of  it.  a  new  trial 
on  the  ground  of  newly  discovered  evi- 
dence is  properlv  denied  (Sonoma  County 
V.  Stofen,  125  Cal.  32;  57  Pac.  681);  and 
also  where  the  president  of  the  appellant 
corporation,  who  was  present  during  most 
of  the  trial,  and  knew  of  the  importance 
of  his  testimony  and  failed  to  give  it. 
Hawley  v.  Los  Angeles  Creamery  Co.,  16 
Cal.  App.  50;  116  Pac.  84.  Where  the 
moving  party  must  have  known,  from 
the  testimony  of  the  opposite  party,  of  the 
existence  of  the  evidence,  and  no  applica- 
tion was  made  for  time  to  procure  the 
attendance  of  the  witnesses,  and  no  sub- 
poenas were  issued  or  other  attempt  made 
to  procure  their  attendance,  further  than  to 
send  a  messenger  to  one,  who  was  found 
to  be  temporarily  away  from  home,  there 
is  no  showing  of  reasonable  diligence 
(Weinburg  v.  Somps,  4  Cal.  Unrep.  10;  33 
Pac.  341);  nor  where  the  moving  party 
failed  to  notify  or  subpoena  a  necessary 
witness,  and  asked  for  and  vs-as  granted 
a  continuance  until  the  next  day,  when 
the  witness  was  expected  to  but  did  not 
return,  and  the  trial  proceeded  and  judg- 
ment was  rendered  without  his  testimony 
(Butler  V.  Estrella  etc.  Vineyard  Co.,  124 
Cal.  239;  56  Pac.  1040);  nor  where  the  evi- 
dence might  have  been  procured  at  the 
trial  by  the  use  of  reasonable  diligence, 
and  the  moving  party  must  have  been  fully 
advised  as  to  its  materiality  and  bearing 
on  the  case,  (ialvin  v.  Palmer,  113  Cal.  46; 
45  Pac.  172.  Where  the  moving  party  was 
notified  by  the  testimony  of  the  opi)osite 
party   that   the   new   witnesses    knew    the 


truth  of  the  matter,  and  that  they  would 
contrailict  him  if  his  testimony  was  false, 
the  fact  that  he  did  not  know  what  the 
witnesses  would  testify  i.s  no  excuse  for 
failure  to  procure  their  testimony  at  the 
trial  (Weinburg  v.  Somps,  4  Cal.  I'nrep. 
10;  33  Pac.  341);  and  where  ho  had  knowl- 
edge of  the  materiality  of  the  testimony 
of  the  witness  before  the  trial,  and  took 
steps  to  find  him  and  jirocure  his  attend- 
ance, but  failed  to  move  for  a  continuanctf, 
he  must  be  held  to  have  entered  uj.on  the 
trial  at  his  peril.  Scanlan  v.  San  Fran- 
cisco etc.  liy.  Co..  128  ("al.  5SG;  61  Pac. 
271;  Berry  v.  Metzler,  7  Cal.  418.  Newly 
discovered  evidence,  after  defeat,  is  looked 
upon  with  suspicion,  and  the  apjieliate 
court,  in  such  case,  is  always  reluctant  to 
interfere  with  the  ruling  of  the  trial  court, 
and  will  not  do  so,  unless  there  has  been 
a  clear  abuse  of  discretion.  Harralson  v. 
Barrett,  99  Cal.  607;  34  Pac.  342;  O'Rourke 
v.  Vennekohl,  104  Cal.  254;  37  Pac.  930; 
Ileintz  v.  Cooper,  104  Cal.  668;  38  Pac. 
511;  Tibbct  v.  Tom  Sue,  125  Cal.  544;  58 
Pac.  160. 

Excessive  damages.  A  new  trial  will 
not  be  granted,  unless  the  verdict  is  so  ex- 
cessive as  to  indicate  that  it  is  the  result 
of  passion  or  prejudice.  Boyce  v.  Cali- 
fornia Stage  Co.,  25  Cal.  460;  Lee  v.  South- 
ern Pacific  R.  R.  Co.,  101  Cal.  118;  35  Pac. 
572;  Redfield  v.  Oakland  Consol.  Street 
Ry.  Co.,  110  Cal.  277;  42  Pac.  822,  1063;- 
Sherwood  v.  Kyle,  125  Cal.  652;  58  Pac. 
270.  Whether  the  verdict  is  excessive  is 
to  be  determined  solely  from  a  considera- 
tion of  the  evidence  in  the  case,  as  to 
whether  it  will  fairly  sustain  the  conclu- 
sion of  the  jury.  Harrison  v.  Sutter  Street 
Ry.  Co.,  116  Cal.  156;  47  Pac.  1019;  Doolin 
v.  Omnibus  Cable  Co.,  125  Cal.  141;  57  Pac. 
774.  An  order  granting  a  new  trial  on 
the  ground  that  excessive  damages  were 
given  under  the  influence  of  jiassion  and 
prejudice,  will  not  be  interfered  with,  un- 
less the  discretion  of  the  trial  court  was 
abused.  Doolin  v.  Omnibus  Cable  Co..  125 
Cal.  141;  57  Pac.  774;  Sherwood  v.  Kyle, 
125  Cal.  652;  58  Pac.  270;  and  see  Ingra- 
ham  v.  Weidler,  139  Cal.  588;  73  Pac.  415; 
Davis  V.  Southern  Pacific  Co..  98  Cal.  13; 
32  Pac.  646;  Etchas  v.  Orena.  121  Cal.  270; 
53  Pac.  798.  The  judge  of  the  trial  court 
is  in  a  much  better  position  than  the 
appellate  court  to  say  whether  a  verdict 
is  or  could  have  been  inspired  by  or 
tainted  with  passion  or  prejudice.  James 
V.  Oakland  Traction  Co.,  10  Cal.  App.  785; 
103  Pac.  1082.  In  cases  of  damages  for 
]iersonal  injuries,  the  verdict  of  the  jury 
will  not  be  disturbed,  where  the  appellate 
court  cannot  say  that  the  verdict  is  so  dis- 
{iroportionate  to  the  injury  proved  that 
it  cannot  be  the  result  of  the  cool  and  dis- 
passionate discretion  of  the  jury.  GomeK 
V.  Scanlan,  155  Cal.  SC'!;  l"n2 "  Pac.  12; 
Scally  V.  W.  T.  Garratt  &  Co.,  11  Cal.  App. 


§657 


NEW  TRIALS. 


728 


138;  104  Pae.  325.  A  venlict  for  twenty- 
five  thousand  dollars,  set  aside;  brakeman; 
loss  of  one  leg  (Lee  v.  Southern  Pacific 
E.  E.  Co.,  101  Cal.  118;  35  Pac.  572); 
eight  thousand  dollars,  set  aside;  man  of 
about  seventy  years;  injuries  resulting  in 
death  (Ilarrison  v.  Sutter  Street  Ey.  Co., 
116  Cal.  158;  47  Pac.  1019);  twenty  thou- 
sand dollars,  reduced  to  five  thousand; 
woman;  concussion  of  spine  and  other  in- 
juries, physical  wreck,  mind  impaired 
(Doolin  v.  Omnibus  Cable  Co.,  125  Cal. 
141;  57  Pac.  774);  fourteen  thousand  dol- 
lars, affirmed;  death  of  wife  and  mother; 
action  by  husband  and  minor  children 
(Eedfield  v.  Oakland  Consol.  Street  Ey. 
Co.,  110  Cal.  277;  42  Pac.  822,  1063);  five 
thousand  dollars,  aflSrmed;  death  of  father; 
action  by  orphan  girl  (Bowen  v.  Sierra 
Lumber  Co.,  3  Cal.  App.  312;  84  Pac.  1010); 
fifteen  thousand  dollars,  affirmed;  woman; 
permanent  injuries,  rendering  her  unfit  to 
labor  (Morgan  v.  Southern  Pacific  Co.,  95 
Cal.  501;  30  Pac.  601);  fifteen  thousand 
dollars,  affirmed;  girl  of  thirteen  years; 
permanently  disfigured  and  crippled;  in- 
juries inflicted  by  being  hurled  from  street- 
car (James  v.  Oakland  Traction  Co.,  10 
Cal.  App.  785;  103  Pac.  1082);  seventy 
thousand  dollars,  affirmed;  stock-breeder; 
loss  of  both  arms  and  one  leg;  injuries  in- 
flicted by  switch-engine  (Zibbell  v.  South- 
ern Pacific  Co.,  160  Cal.  237;  116  Pac.  513) ; 
sixteen  thousand  five  hundred  dollars,  af- 
firmed; laborer;  right  shoulder  and  arm 
permanently  injured  (Boyce  v,  California 
Stage  Co.,  25  Cal.  460) ;  seven  thousand 
five  hundred  dollars,  affirmed;  boy  under 
twelve  years;  improperly  employed  around 
dangerous  machinery;  permanent  injury 
to  hand  and  arm  (Scallv  v,  W.  T.  Garratt 
&  Co.,  11  Cal.  App.  138;  104  Pac.  325); 
four  thousand  one  hundred  dollars,  af- 
firmed; boy  of  nineteen  years;  permanent 
injury  to  knee,  received  in  collision  (Kim- 
ball V.  Northern  Electric  Co.,  159  Cal.  225; 
111  Pac.  156);  two  thousand  dollars,  af- 
firmed; married  woman;  false  imprison- 
ment by  constable  upon  pretended  charge 
of  grand  larceny  (Gomez  v.  Scanlan,  155 
Cal.  528;  102  Pac.  12);  three  thousand 
five  hundred  dollars,  affirmed;  injuries  to 
plaintiff's  leasehold  estate  from  overflow 
of  land,  caused  by  moving  an  immense 
timber  jam  in  stream  above  plaintiff's 
property  (Sacchi  v.  Bavside  Lumber  Co., 
13  Cal.  App.  72;  108  Pac.  885);  eight  hun- 
dred dollars,  affirmed;  damages  caused  by 
depriving  an  abutting  land-owner  of  access 
over  a  street  to  and  from  his  premises 
(Coates  V.  Atchison  etc.  Ey.  Co.,  1  Cal. 
App.  441;  82  Pac.  640);  five  hundred  dol- 
lars, affirmed;  damages  for  the  wrongful 
taking,  under  attachment,  of  property  val- 
ued at  five  hundred  and  sixty  dollars. 
Ingraham  v.  Weidler,  139  Cal.  588;  73 
Pac.  415.  On  a  motion  for  a  new  trial, 
the  court  may,  when  the  judgment  is  ex- 


cessive, make  a  conditional  order  denying 
the  motion,  if  the  prevailing  party  con- 
sents to  remit  the  excess,  and  granting  it 
in  the  absence  of  such  consent.  Bentley 
V.  Hurlburt,  153  Cal.  796;  96  Pac.  890. 

Insufficient  damages.  A  verdict  for  in- 
sufficient damages,  under  the  influence  of 
passion  or  prejudice,  is  not  ground  for  a 
new  trial  (Benjamin  v.  Stewart,  61  Cal. 
605) ;  nor  will  the  verdict  for  damages  be 
disturbed,  where  the  court  deemed  it 
wholly  inadequate  in  amount,  and  ordered 
a  new  trial.  Hearne  v.  De  Young,  132  Cal. 
357;  64  Pac.  576. 

Jury's  disregard  of  evidence  and  instruc- 
tions. Plain  disregard,  by  the  jury,  of  the 
evidence  in  the  case,  and  of  the  instruc- 
tions of  the  court,  so  as  to  satisfy  the 
court  that  the  verdict  was  rendered  under 
the  influence  of  passion  and  prejudice,  and 
a  misapprehension  of  such  instruction,  will 
warrant  the  granting  of  a  new  trial. 
Anglo-Nevada  Assurance  Corp.  v.  Eoss,  123 
Cal.  520;  56  Pac.  335. 

Insufficiency  of  evidence.  It  is  the  duty 
of  the  trial  court  to  grant  a  new  trial 
whenever,  in  its  opinion,  the  evidence  upon 
which  the  former  decision  was  based  was 
insufficient  to  justify  that  decision.  Pollitz 
V.  Wickersham,  150  Cal.  238;  88  Pac.  911; 
Hughes  Bros.  v.  Eawhide  Gold  Min.  Co.,  16 
Cal.  App.  293;  116  Pac.  969;  Briggs  v.  Hall, 
20  Cal.  App.  372;  129  Pac.  288.  When  a  ver- 
dict is  not  supported  by  the  evidence,  an 
api^ellate  court  will  remand  the  cause  for 
a  new  trial.  McMahon  v.  Hetch-Hetchy 
etc.  Ey.  Co.,  2  Cal.  App.  400;  84  Pac.  350. 
A  motion  for  a  new  trial  cannot  be  based 
on  the  ground  of  the  insufficiency  of  the 
evidence  to  justify  the  judgment,  nor  on 
the  ground  that  the  judgment  is  against 
law:  the  motion,  under  the  sixth  subdivis- 
ion of  this  section,  should  be  directed  to 
the  "decision,"  and  not  the  judgment.  Bos- 
ton Tunnel  Co.  v.  McKenzie,  67  Cal.  485; 
8  Pac.  22;  Elizalde  v.  Murphy,  11  Cal.  App. 
32;  103  Pac.  904;  Martin  v.  Matfield,  49 
Cal.  42;  Sawyer  v.  Sargent,  65  Cal.  259; 
3  Pac.  872.  Insufficiency  of  the  evidence 
to  justify  a  verdict  or  other  decision,  is 
a  ground  for  a  new  trial,  distinct  from 
that  of  damages  given  under  the  influence 
of  passion  or  prejudice;  and  the  court  may 
grant  a  new  trial,  where  the  evidence  is 
insufficient  to  justify  the  verdict,  without 
regard  to  whether  the  verdict  was  the  re- 
sult of  passion  or  prejudice.  Swett  v.  Gray, 
141  Cal.  63;  74  Pac.  439.  To  say  that  ex- 
cessive damages  were  given  under  the  in- 
fluence of  passion  or  prejudice,  is  but  to 
say  that  the  evidence  does  not  justify  the 
verdict.  Graybill  v.  De  Young,  140  Cal. 
323;  73  Pac.  1067;  Harrison  v.  Sutter  Street 
Ey.  Co.,  116  Cal.  156;  47  Pac.  1019;  Doolin 
V.  Omnibus  Cable  Co.,  125  Cal.  141;  57 
Pac.  774.  Where  the  verdict  is  unsup- 
ported by  the  evidence  and  contrary  to 
law,  an  order  denying  a  new  trial  will  be 


729 


CONFLICTING   EVIDENCE — DECISION    AGAINST   LAW 


§  057 


reversed.  Koebig  v.  SmitluTn  Pacific  Co., 
108  Cal.  235;  41  Pac.  469.  Whore  the  ulti- 
mate facts  to  he  deiluced  from  the  evi- 
dence ilepend  larjjely  and  essentially  upon 
inferences  not  in  themselves  ol)vions  or 
certain,  an  order  granting;  a  new  trial  will 
not  ho  diKturl)Oil  on  a]i]ieal.  ('auhajio  w 
Security  Sav.  Bank,  lis  Cal.  S2;  '>{)  Pac 
310.  The  granting;  of  a  new  trial  for  want 
of  evidence  to  support  the  verdict  is 
usually  a  matter  almost  entirely  within 
the  discretion  of  the  trial  court.  Kstate  of 
Everts,  163  Cal.  449;  125  Pac.  1058.  The 
duty  of  the  judge  to  grant  a  motion  for 
a  new  trial  when  the  evidence  is  insufli- 
cient  to  support  the  decision,  is  the  same, 
whether  he  tried  the  case  originally  or 
not.  .lones  v.  Sanders,  103  Cal.  678;  37 
Pac.  649;  Garton  v.  Stern,  121  Cal.  347; 
53  Pac.  904.  The  sole  remedy,  in  the  trial 
court,  of  a  party  aggrieved  hy  any  find- 
ing of  fact  is  a  motion  for  a  new  trial. 
Dahlberg  v.  Girsch,  157  Cal.  324;  107  Pac. 
616.  Where  the  order  granting  a  new  trial 
is  general  in  its  terms,  and  one  of  the 
grounds  of  the  motion  is  insufficiency  of 
the  evidence,  it  must  be  presumed  upon 
a])peal  that  that  was  one  of  the  grounds 
on  which  the  motion  was  granted.  Pollitz 
V.  Wickcrsham,  150  Cal.  2;5S;  88  Pac.  911; 
Hughes  Bros.  v.  Kawdiide  Gold  Alining  Co., 
IG  Cal.  App.  293;  116  Pac.  969. 

Conflicting  evidence.  Where  the  evi- 
dence is  conflicting,  the  action  of  the  court 
in  granting  a  new  trial  will  not  be  re- 
viewed on  appeal,  except  for  manifest 
abuse  of  discretion.  Domico  v.  Casassa, 
101  Cal.  411;  35  Pac.  1024;  Lvon  v.  Aron- 
son,  14(1  Cal.  365;  73  Pac.  1063;  Houghton 
V.  Market  Street  Ry.  Co.,  1  Cal.  App.  576; 
82  Pac.  972;  Martin  v.  Markarian,  1  Cal. 
App.  687;  82  Pac.  1072;  Frutig  v.  Trafton, 
2  Cal.  App.  47;  83  Pac.  70.  Where  a  find- 
ing is  in  direct  conflict  with  the  evidence 
and  with  an  admission  of  the  defendant, 
it  is  within  the  discretion  of  the  court  to 
grant  a  new  trial,  if  the  defendant  will 
not  consent  to  the  correction  of  the  find- 
ing. Eaton  V.  Jones,  107  Cal.  487;  40  Pac. 
798.  The  trial  judge  is  not  bound  by  the 
verdict  of  the  jury,  where  there  is  a  con- 
flict in  the  evidence;  hut  it  is  his  duty, 
in  such  case,  to  grant  a  new  trial,  where 
the  verdict  is  against  the  weight  of  the 
evidence.  Green  v.  Soule,  145  Cal.  96;  78 
Pac.  337;  Fowden  v.  Pacific  Coast  S.  S. 
Co.,  149  Cal.  151;  86  Pac.  178;  Pollitz  v. 
Wiekersham,  150  Cal.  238;  88  Pac.  911; 
Witter  V.  Redwine,  14  Cal.  App.  393;  112 
Pac.  311;  Walker  v.  Beaumont  Land  etc. 
Co..  15  Cal.  App.  726;  115  Pac.  766;  Mc- 
Carthv  v.  Morris,  17  Cal.  App.  723;  121 
Pac.  696;  Briggs  v.  Hall,  20  Cal.  App.  372; 
129  Pac.  288.  The  jurisdiction  of  the  court 
to  grant  a  new  trial,  notwithstanding  a 
conflict  in  the  evidence,  where  it  is  fully 
convinced  that  the  verdict  is  wrong,  is  not 
destroyed  by  the  fact  that  the  jury  were 


allowed  to  visit  the  premises  to  enable 
them  to  understand  the  evidence.  Mc- 
Queen V.  Mechanics'  Institute,  107  Cal. 
IC..!;  Ill  Pac.  1  1  ». 

Weight  and  preponderance  of  evidence. 
It  is  the  iluty  of  the  court  to  grant  a  new 
Irial  if,  in  its  o[)inion,  the  weight  or  pre- 
I'oMdcrance  of  the  evidence  is  opposed  to 
the  findings.  Conwell  v.  Varain,  20  Cal. 
App.  521;  130  Pac.  23.  The  trial  court 
may  grant  a  now  trial  when  the  verdict  is 
against  the  preponderance  of  the  eviiience. 
Fowden  v.  Pacific  Coast  S.  S.  Co.,  149  Cal. 
151;  86  Pac.  178. 

Decision  against  law.  The  phrase,  "or 
that  it  is  against  law,"  in  the  si.xth  sub- 
division of  this  section,  iq  not  clear  or  un- 
ambiguous; but,  reail  in  connection  with 
§  656,  ante,  it  constitutes  a  reason  for  the 
re-exanunation  of  an  issue  of  fact.  Kaiser 
V.  Dnlto,  140  Cal.  167;  73  Pac.  828.  That 
phrase  has  no  application  to  cases  falling 
within  any  of  the  other  subdivisions. 
Brumagim  v.  Bradshaw,  39  Cal.  24,  35; 
and  see  People  v.  Amer,  151  Cal.  303;  90 
Pac.  698.  The  terms  "verdict"  and  "decis- 
ion," also  in  the  sixth  subdivision,  are  ap- 
positional:  what  is  preilicatcd  of  one  is 
predicated  also  of  the  other;  and  an  erro- 
neous conclusion  of  law,  drawn  from  a 
finding  of  fact;  is  a  decision  against  law, 
for  which  a  new  trial  should  be  granted. 
Simmons  v.  Hamilton,  56  Cal.  493.  A  mo- 
tion for  a  new  trial  on  the  ground  that 
the  decision  is  against  law,  is  or  is  not 
permissible,  according  as  a  new  trial  is  or 
is  not  an  effective  means  of  correcting 
error  in  the  decision.  Estate  of  Doyle,  73 
Cal.  564;  15  Pac.  125;  Swift  v.  Occidental 
Mining  etc.  Co.,  141  Cal.  161;  74  Pac.  700; 
Quist  V.  Sandman,  154  Cal.  748;  99  Pac. 
204.  A  verdict  or  other  decision  of  fact 
against  law  is  ground  for  granting  a  new 
trial.  Martin  v.  Matfield,  49  Cal.  42.  A 
failure  to  find  upon  all  the  material  issues 
warrants  a  new  trial,  on  the  ground  that 
the  "decision  is  against  law."  Butler  v. 
Agnew,  9  Cal.  App.  327;  99  Pac.  395;  Eli- 
zalde  V.  Murphy,  11  Cal.  App.  32;  103  Pac. 
904;  Cargnani  v.  Cargnani,  16  Cal.  ApjL 
96;  116  Pac.  306;  Knoch  v.  Haizlip,  163 
Cal.  146;  124  Pac.  998.  Where  there  is  a 
failure  to  find  on  a  material  issue,  the  de- 
cision is  against  law,  and  it  may  be  re- 
viewed on  api>eal  from  an  order  granting 
or  refusing  a  nei\'  trial.  Adams  v.  Helbing, 
107  Cal.  298;  40  Pac.  422;  and  see  Knight 
V.  Roche,  56  Cal.  15;  Brown  v.  Burbank, 
59  Cal.  535;  Soto  v.  Irvine,  60  Cal.  436; 
Cummings  v.  Conlon,  66  Cal.  403;  5  Pac. 
796.  903;  Millard  v.  Supreme  Council,  3 
Cal.  Unrep.  96;  21  Pac.  825;  Langan  v. 
Langan,  89  Cal.  186;  26  Pac.  764;  Nuttall 
v.  Lovejov,  90  Cal.  163;  27  Pac.  69;  Bri- 
son  V.  Brison,  90  Cal.  323;  27  Pac.  1S6; 
Haight  V.  Trvon,  112  Cal.  4;  44  Pac.  318; 
Polk  v.  Boggs.  122  Cal.  114;  54  Pac. 
536;  Kaiser  v.  Dalto,  140  Cal.  167;  73  Pac. 


1657 


NEW  TRIALS. 


730 


S28;  Swift  v.  Occidental  Mining  etc.  Co., 
141  Cal.  161;  74  Pac.  700;  Knoch  v.  Haiz- 
lip,  163  Cal.  146;  124  Pac.  99S.  In  such 
case  there  has  been  a  mistrial,  and  the 
decision  is  to  be  considered  as  against  law; 
but  this  rule  applies  only  where  the  issue 
upon  which  there  is  no  finding  is  material. 
Brison  v.  Prison,  90  Cal.  323;  27  Pac.  186; 
and  see  McCourtney  v.  Fortune,  57  Cal. 
617.  The  failure  to  find  on  an  immaterial 
issue,  or  on  an  issue  not  made,  is  not 
ground  for  a  new  trial.  Pinheiro  v.  Bet- 
tencourt,  17  Cal.  App.  Ill;  118  Pac.  941. 
Where  the  complaint  sets  forth  two  or 
more  grounds  for  relief,  either  of  which 
is  suflSeient  to  support  a  judgment,  a  find- 
ing on  one  of  such  issues  is  sufficient,  and 
a  failure  to  find  on  the  other  does  not  con- 
stitute a  mistrial,  nor  render  the  decision 
against  law.  Adams  v.  Helbing,  107  Cal. 
298;  40  Pac.  422.  That  the  court  erro- 
neously applied  the  law  to  the  facts,  or 
drew  the  wrong  conclusion  of  law  from 
the  facts  found,  is  not  ground  for  granting 
a  new  trial  (Estate  of  Doyle,  73  Cal.  564; 
15  Pac.  125;  Brison  v.  Brison,  90  Cal.  323; 
27  Pac.  186;  Pierce  v.  Willis,  103  Cal. 
91;  36  Pac.  1080;  Swift  v.  Occidental  Min- 
ing etc.  Co.,  141  Cal.  161;  74  Pac.  700; 
•Quist  V.  Sandman,  154  Cal.  748;  99  Pac. 
204) ;  nor  can  a  new  trial  be  granted 
where  the  conclusion  of  law  is  logically 
drawn  from  the  facts  found;  and  the  de- 
cision is  not  contrary  to  law.  Heath  v. 
Scott,  65  Cal.  548;  3  Pac.  557.  A  decis- 
ion is  not  against  law,  merely  because  the 
findings  do  not  support  the  legal  conclu- 
sions drawn  from  them  and  the  judgment 
based  thereon.  Estate  of  Keating,  162  Cal. 
406;  122  Pac.  1079.  That  the  judgment 
is  against  law  is  not  a  statutory'  cause  for 
a  motion  for  a  new  trial:  the  motion  should 
be  directed  at  the  decision.  Sawyer  v.  Sar- 
gent, 65  Cal.  259;  3  Pac.  872.  An  objec- 
tion that  the  finding  does  not  sustain  the 
decision,  that  the  complaint  does  not  state 
a  cause  of  action,  and  that  the  law  is  un- 
constitutional, cannot  be  considered  on  a 
motion  for  a  new  trial  on  the  ground  that 
the  decision  is  against  law.  Petaluma  Pav- 
ing Co.  V.  Singley,  136  Cal.  616;  69  Pac. 
426.  A  verdict  in  disobedience  to  the  in- 
structions of  the  court,  on  a  point  of  law, 
is  a  verdict  against  law,  and  should  be  set 
aside,  even  though  the  instruction  itself 
is  erroneous  in  point  of  law.  Emerson  v. 
Santa  Clara  County,  40  Cal.  543.  The 
grounds  for  a  new  trial  all  refer  to  the 
errors  in  determining  any  issue  of  fact, 
or  affecting  the  determination  of  any  ques- 
tion of  fact:  if  there  has  been  no  such 
error,  there  is  no  ground  for  a  new  trial. 
Estate  of  Keating,  162  Cal.  406;  122  Pac. 
1079. 

Errors  of  law.  The  remedy  to  correct 
an  error  of  law  made  at  the  trial  is  by 
motion  for  a  new  trial.    Forrester  v,  Law- 


ler,  14  Cal.  App.  171;  111  Pac.  284.  A 
party  against 'whom  judgment  is  rendered 
is  not  entitled  to  a  new  trial  because  of 
an  error  in  the  admission  of  testimony 
offered  by  himself  (Laver  v.  Hotaling,  115 
Cal.  613;  47  Pac.  593);  neither  is  an 
error  in  admitting  immaterial  evidence  ol 
enough  importance  to  warrant  a  new  trial. 
Brownlee  v.  Reiner,  147  Cal.  641;  82  Pac 
324.  An  error  in  a  ruling  on  defendant's 
motion  for  a  nonsuit,  with  the  exception 
thereto,  may  be  set  forth  in  a  bill  of  ex- 
ceptions or  in  a  statement  on  motion  for  a 
new  trial,  and  he  is  entitled  to  have  it 
reviewed  on  motion  for  a  new  trial  as  an 
error  of  law  occurring  at  the  trial;  and 
whether  the  court  grants  or  refuses  a  new 
trial,  its  action  may  be  reviewed  on  ap- 
peal. Alpers  V.  Hunt,  86  Cal.  78;  21  Am. 
St.  Rep.  17;  9  L.  R.  A.  483;  24  Pac.  846; 
and  see  Spanagel  v.  Bellinger,  38  Cal.  278; 
People  V.  Turner,  39  Cal.  370;  Mason  v. 
Austin,  46  Cal.  385;  Jacks  v.  Buell,  47 
Cal.  162;  Onderdonk  v.  San  Francisco,  75 
Cal.  534;  17  Pac.  678;  Wheeler  v.  Kassa- 
baum,  76  Cal.  90;  18  Pac.  119.  In  these 
cases  it  was  held  that  the  sufiiciency  of 
the  complaint  could  not  be  considered  on 
appeal  from  an  order  granting  a  new 
trial;  the  distinction  being,  that,  by  mov- 
ing for  a  nonsuit,  an  exception  to  the 
sufficiency  of  the  complaint  could  be  re- 
viewed on  a  motion  for  a  new  trial.  Where 
the  object  of  the  action  is  to  determine 
a  permanent  right,  and,  through  error,  the 
plaintiff  is  deprived  of  the  proper  judg- 
ment, the  fact  that  he  can  recover  only 
nominal  damages  is  no  reason  for  denying 
a  new  trial.  Arkley  v.  Union  Sugar  Co., 
147  Cal.  195;  81  Pac.  509;  and  see  Hancock 
V.  Hubbell,  71  Cal.  537;  12  Pac.  618;  Ken- 
yon  V.  Western  Union  Tel.  Co.,  100  Cal. 
454;  35  Pac.  75. 

Reasons  for  denying  new  trial.  When 
a  motion  for  a  new  trial  is  improper,  an 
order  denying  it  is  properly  made.  Quist 
V.  Sandman,  154  Cal.  748;  99  Pac.  204.  A 
new  trial  will  not  be  granted  where  it 
would  necessarily  result  in  the  same  decis- 
ion and  judgment.  Bates  v.  Bates,  71  Cal. 
307;  12  Pac.  223;  People  v.  Hagar,  52  Cal. 
171.  A  motion  for  a  new  trial  is  not  a 
proper  procedure,  if  there  has  been  no  trial 
by  reason  of  the  non-appearance  of  the 
plaintiffs  at  the  trial.  Estate  of  Dean,  149 
Cal.  487;  87  Pac.  13. 

Statements  in  newspapers.  Statements 
in  public  journals,  which  do  not  appear  to 
have  been  read  by  the  jury  before  ren- 
dition of  verdict,  though  severe  on  the 
defendant,  are  not  ground  for  new  trial. 
Sheehan  v.  Hammond,  2  Cal.  App.  371;  84 
Pac.  340. 

Agreed  facts.  There  is  no  room  for  de- 
manding a  new  trial  where  the  facts  have 
been  expressly  agreed  upon,  as  there  is  no 
issue  of  fact;  and  the  motion  will  not  lie 


731 


GRANTING    MOTION   AS   TO   ONE   ISSUE   OR  ONE  PARTY. 


§657 


on  the  ground  that  the  decision  is  afjainst 
law,  as  the  ground  is  reviewable  only  upon 
appeal  from  the  judgment  (Quist  v.  Sand- 
man, 154  Cal.  748;  99  Pac.  204);  but  the 
trial  court  has  jurisdiction  to  entertain  a 
motion  for  the  new  trial  of  a  case  that 
was  tried  on  an  agreed  statement  of  facts 
and  a  stijuilation  waiving  iindiiigs;  and 
the  supreme  court  has  likewise  jurisdiction 
of  an  appeal  from  an  order  denying  such 
motion;  should  it  appear  that  the  apjieal 
is  frivolous,  it  will  be  determined  on  the 
hearing  thereof.  Quist  v.  Michael,  153 
Cal.  365;  95  Pac.  658. 

Discretion  of  court.  The  discretion  of 
the  court  in  granting  or  denying  a  new 
trial  will  not  be  interfered  witli  on  appeal, 
except  for  manifest  abuse.  Pico  v.  Cohn, 
67  Cal.  25S;  7  Pac.  680;  Warner  v.  F. 
Thomas  Parisian  Dyeing  etc.  Works,  105 
Cal.  409;  38  Pac.  960;  Estate  of  Martin, 
113  Cal.  479;  45  Pac.  813;  Anglo-Nevada 
Assurance  Corp.  v.  Ross,  123  Cal.  520;  56 
Pac.  335;  Cutten  v.  Pearsall,  146  Cal.  690; 
81  Pac.  25;  Baldwin  v.  Napa  etc.  Wine 
Co.,  1  Cal.  App.  215;  81  Pac.  1037;  Hough- 
ton V.  Market  Street  E.  R.  Co.,  1  Cal.  App. 
576;  82  Pac.  972;  Weisser  v.  Southern 
Pacific  Co.,  148  Cal.  426;  7  Ann.  Cas.  636; 
83  Pac.  439.  Where  every  material  fact 
is  contradicted  by  counter-affidavits,  the 
discretion  of  the  court  in  refusing  a  new 
trial  will  not  be  interfered  with  on  appeal. 
Shafer  v.  Willis,  124  Cal.  36;  56  Pac.  635; 
Doyle  V.  Sturla,  38  Cal.  456;  Merk  v. 
Gelzhaeuser,  50  Cal.  631;  People  v.  Mesa, 
93  Cal.  580;  29  Pac.  116.  A  succeeding 
judge  stands  in  the  place  of  his  predecessor, 
and  has  all  his  rights  and  powers,  and  his 
discretion  in  granting  a  new  trial  in  a  case 
tried  by  his  predecessor  will  not  be  inter- 
fered with,  except  w  hen  abused.  Hausmann 
V.  Sutter  Street  Ey.  Co.,  139  Cal.  174;  72 
Pac.  905. 

Restoration  of  records.  Although  a  judg- 
ment roll  is  destroyed  by  fire  while  a  mo- 
tion for  a  new  trial  is  pending,  yet  a 
proceeding  for  the  restoration  of  the  record 
may  be  maintained,  notwithstanding  the 
pendencv  of  such  motion.  Foerst  v.  Kelso, 
163  Cal.  436;  125  Pac.  1054. 

New  trial  on  one  of  several  issues.  Where 
there  is  more  than  one  issue  of  fact  in  a 
case,  and  such  issues  are  distinct  and 
separable  in  their  nature,  the  court  may 
order  a  new  trial  of  one  issue  and  refuse 
it  as  to  the  others.  Estate  of  Everts,  163 
Cal.  449;  125  Pac.  1058.  Where  the  court 
has  erred  in  its  judgment  upon  a  special 
issue,  but  the  error  is  not  of  sufficient 
importance  to  warrant  a  new  trial  of  the 
whole  case,  a  new  trial  will  be  limited  to 
a  supplemental  finding  and  judgment  upon 
that  issue  alone.  Mayberry  v.  Whittier, 
144Cal.  322;  7SPac.  16" 

New  trial  as  to  one  joint  defendant. 
A   new    trial    may    be    granted   as    to    one 


joint  defendant  and  denied  as  to  the  other. 
Fowden  v.  Pacific  Coast  S.  S.  Co.,  149  Cal. 
151;  86  Pac.  17s. 

Presumption  in  favor  of  order  granting 
new  trial.  It  is  conclusively  presumed  in 
favor  of  an  order  granting  a  new  trial, 
that  it  was,  in  part,  based  ui)on  some 
ground  upon  which  affidavits  could  bo 
used,  and  that  such  were  used,  and  were 
sufficient  to  justify  the  order.  Thompson 
V.  Wheeler,  5  Cal.  A"]ip.  195;  89  Pac.  KiG.j. 

Appeal.  It  is  only  iu  rare  instances, 
anil  upon  very  strong  grounds,  that  the 
apjK'Uate  court  will  set  aside  an  order 
granting  a  new  trial.  Brigga  v.  Hall,  20 
Cal.  App.  372;  129  Pac.  288.  Upon  appeal 
from  an  order  denying  a  new  trial,  the 
appellate  court  is  limited,  in  its  review, 
to  the  grounds  upon  which  the  motion  for 
a  new  trial  may  be  based;  the  sufficiency 
of  the  complaint,  rulings  upon  demurrers, 
and  the  sufficiency  of  the  findings  to  sup- 
port the  judgment  cannot  be  considered 
on  such  an  api)eal.  Great  Western  Gold 
Co.  V.  Chambers,  153  Cal.  307;  95  Pac.  151; 
Fagan  v.  Lentz,  156  Cal.  681;  20  Ann.  Cas. 
221;  105  Pac.  951.  The  overruling  of  a 
demurrer  is  not  open  to  review  ui)on  an 
appeal  from  an  order  denying  a  motion  for 
a  new  trial.  Aston  v.  Aston,  14  Cal.  App. 
323;  111  Pac.  1035. 

Admission  of  irrelevant  or  immaterial  evidence 
as  ground  for  new  trial.  See  note  6G  Am.  Dec. 
717. 

Surprise  as  ground  for  granting  new  trial. 
Sec  note  78  Am.  Dec.  518. 

Duty  of  court  to  set  aside  verdict  as  contrary 
to  evidence.  See  notes  2  Ann.  Cas.  762;  Ann. 
Cas.  191  2D,  122G. 

Inconsistent  testimony  in  another  suit  as  ground 
for  new  trial.    See  note  42  L.  li.  A.   G'.t2. 

Misconduct  of  attorneys  in  argument  as  ground 
for  new  trial.  See  notes  9  Am.  St.  Kep.  59y  ;  100 
Am.  St.  Kep.  689. 

Conduct  of  counsel  in  getting  inadmissible  evi- 
dence before  jury  as  ground  for  new  trial.  See 
notes   6   Ann.   C'as.   224  ;    19   Ann.   ('as.   2'.Mi. 

Misconduct  of  party  subsequent  to  action  as 
ground  for  new  trial.    See  note  12  Ann.  Cas.  9.5S. 

New  trial  for  misconduct  of  jury  as  resting  in 
difcrction  of  trial  court.  See  note  Ann.  Cas. 
19121),  1018. 

Furnishing  refreshment  to  juror  by  successful 
party  as  ground  for  new  trial.  See  notes  Ann. 
Cas.    19121i,    747;    19   L.   K.   A.    ( N.   S. )    733. 

Use  of  intoxicating  liquor  by  Jury  as  ground 
for  new  trial.    See  note  Ann.  Cas.  1912.V.   1322. 

Coercion  of  disagreeing  jury  as  ground  for 
new  trial.     See  note   16   L.    U.   A.   643. 

Communication  by  judge  with  Jury  not  in  open 
court  as  ground  for  new  trial.  See  note  17 
L.  i;.  A.  (N.  S.)  009. 

Necessity  for  new  trial  where  verdict  is  found 
contrary  to  erroneous  instruction.  See  note  14 
Ann.  Cas.  973. 

Right  to  new  trial  where  jury  disreg.ird  errone- 
ous instructions.    See  note  21  L.  K.  A.  (X.  S.)  sy2. 

Inadequacy  of  damages  in  personal  injury  ac- 
tion as  ground  for  setting  aside  verdict.  See  note 
17  Ann.  Cas.  1073. 

Inadequacy  of  verdict  for  punitive  damages 
only  as  ground  for  setting  aside  verdict.  See 
note  20  Ann.  Cas.  S79. 

Negligence  or  incompetence  of  attorney  as 
ground  for  new  trial.  See  note  Ann.  Cas.  191 3D, 
4 '.1 8. 

Forgotten  facts  as  newly  discovered  evidence 
warranting  new  trial.    Sco  note  17  Ann.  Cas.  317. 


§657 


NEW  TRIALS. 


732 


Eight  to  new  trial  on  ground  of  newly  discov- 
ered evidence  where  incompetency  of  witness  has 
been  removed  since  trial.    See  note  17  Ann.  Cas. 

Newly  discovered  evidence  of  contradictory 
statements  made  by  witness  as  ground  for  new 
trial.    See   note  Ann.   Cas.   1912D,   856. 

What  is  cumulative  evidence  within  rule  ex- 
cluding it  when  offered  as  newly  discovered  evi- 
dence in  support  of  motion  for  new  trial.  See 
note  Ann.  Cas.  1913D,  157. 

Newly  discovered  cumulative  evidence  as 
ground  for  new  trial.    See  note  14  L.  R.  A.  609. 

Disqualification  of  juror  as  ground  for  new 
trial.  See  notes  Ann.  Cas.  1913A,  892;  18 
L.  R.  A.  473. 

Refusal  to  allow  cross-examination  on  relevant 
matters  covered  by  examination  in  chief  as  ground 
for  new  trial.    See  note  25  L.  R.  A.  (N.  S.)  6S3. 

Imposition  of  costs  as  condition  of  granting 
new  trial  for  insufficiency  of  evidence.  See  notes 
7  Ann.  Cas.   183;   20  Ann.   Cas.   41. 

CODE  COMMISSIONERS'  NOTE.  1.  Cases 
under  subdivision  1.  Parker  v.  Shephard,  1  Gal. 
132-  Lawrence  v.  Collier,  1  Cal.  37;  Sannickson 
V.  Brown,  5  Cal.  57;  Paige  v.  O'Neal,  12  Cal. 
483-  Benedict  v.  Cozzens,  4  Cal.  382;  Thompson 
V.  Paige,  16  Cal.  77;  Thrall  v.  Smiley,  9  Cal. 
538;  Redman  v.  Gulnac,  5  Cal.  148;  Smith  v. 
Billett,  15  Cal.  26;  Mowry  v.  Starbuck,  4  Cal. 
274;  Thornton  v.  Borland,  12  Cal.  439;  Keller 
V.  Franklin,  5  Cal.  432 ;  Gillan  v.  Hutchinson, 
16  Cal.  156;  Robinson  v.  Smith,  14  Cal.  254; 
Pilot  Rock  Creek  Canal  Co.  v.  Chapman,  11  Cal. 
162;  Broadus  v.  Nelson,  16  Cal.  80;  Calderwood 
V.  Tevis,  23  Cal.  335;  Brooks  v.  Crosby,  22  Cal. 
42;  People  v.  Boggs,  20  Cal.  432;  People  v.  Sy- 
monds,  22  Cal.  353;  Ford  v.  Thompson,  19  Cal. 
118;  Minturn  v.  Burr,  20  Cal.  48;  Argenti  v. 
San  Francisco,  30  Cal.  458;  People  v.  Williams, 
24  Cal.  34;  Wilcoxson  v.  Burton,  27  Cal.  237; 
87  Am.  Dec.  66;  Rice  v.  Cunningham,  29  Cal. 
492;  People  v.  Hushes,  29  Cal.  257;  Carpentier 
V.  Small,  35  Cal.  346. 

2.  Cases  under  subdivision  2.  Turner  v.  Tuol- 
umne County  Water  Co.,  25  Cal.  400;  Donner 
V.  Palmer,  2  3  Cal.  40;  Taylor  v.  California  Stage 
Co.,  6  Cal.  228;  Thrall  v.  Smiley,  9  Cal.  529; 
Wilson  V.  Berrvman,  5  Cal.  44;  63  Am.  Dec.  78; 
Boyce  V.  Stage  Co.,  25  Cal.  473;  People  v.  Hughes, 
29  Cal.  257. 

3.  Cases  under  subdivision  3.  Casement  v. 
Ringgold,  28  Cal.  335;  Packer  v.  Heaton,  9  Cal. 
571;  Cook  t.  De  la  Guerra,  24  Cal.  237;  Klock- 
enbaum  v.  Pierson,   22   Cal.   160;    Guy  v.  Hanly, 

21  Cal.  397;  Patterson  v.  Ely,  19  Cal.  28; 
Turner  v.  Morrison,  11  Cal.  21;  Smith  v.  Rich- 
mond. 15  Cal.  501;  Tavlor  v.  California  Stage 
Co.,  6  Cal.  228:  Rogers  v.  Huie,  1  Cal.  429;  54 
Am.  Dec.  300;  Live  Yankee  Co.  v.  Oregon  Co., 
7  Cal.  40;  Brooks  v.  Lyon,  3  Cal.  113;  Howe  v. 
Briggs,  17  Cal.  385;  Eagan  v.  Delaney,  16  Cal. 
85;  Fuller  v.  Hutchings,  10  Cal.  523;  70  Am. 
Dec.  746:  Howe  v.  Briggs,  17  Cal.  385:  Nooney 
V.  Mahonev,  30  Cal.  226;  Brooks  v.  Douglass, 
32  Cal.  208:  Rodiguez  v.  Comstock,  24  Cal.  85; 
Schellhous  v.  Ball,  29  Cal.  605;  People  v.  Joce- 
lyn,  29  Cal.  562:   Doyle  r.  Sturla,  38  Cal.  456. 

4.  Cases  under  subdivision  4.    Spencer  v.  Doane, 

23  Cal.  419;  O'Brien  v.  Brady,  23  Cal.  243; 
Wright  V.  Carrillo,  22  Cal.  596;    Aldrich  v.  Palmer, 

24  Cal.  515;  Taylor  v.  California  Stage  Co.,  6 
Cal.  228;  Berry  v.  Metzler,  7  Cal.  418;  Gaven 
V.  Dopman,  5  Cal.  342;   Klockenbaum  v.  Pierson, 

22  Cal.  160;  Hoyt  v.  Sanders,  4  Cal.  345;  Rogers 
V.  Haie,  1  C»l.  429;  54  Am.  Dec.  300;  Weimer 
V.  Lowery,  11  Cal.  104;  Baker  v.  Joseph,  16  Cal 
180;  Jenny  Lind  Co.  v.  Bower,  11  Cal.  194 
Live  Yankee  v.  Oregon  Co.,  7  Cal.  42;  Brooks  v 
Lj'on,  3  Cal.  114;  Burritt  v.  Gibson,  3  Cal.  399 
Bartlett  v.  Hogden,  3  Cal.  57;  Perry  v."  Cochran 
1  Cal.  180;  Coghill  v.  Marks,  29  Cal.  673;  Levit- 
sky  V.  Johnson,  35  Cal.  41;  Arnold  v.  Skaggs,  35 
Cal.  684;   Stoakes  v.  Monroe,  36  Cal.  383. 

5.  Cases  under  subdivision  5.  Clark  v.  Huber, 
20  Cal.  196;  Heath  v.  Lent,  1  Cal.  410;  Pleasants 
V.  North  Beach  etc.  R.  R.  Co.,  34  Cal.  586;  Pot- 
ter V.  Seale,  5  Cal.  410;  Hall  v.  Bark  Emily 
Banning,  33  Cal.  522;  Payne  v.  Pacific  Mail  S.  S. 


Co.,  1  Cal.  33;  Patterson  v.  Ely,  19  Cal.  28; 
Chapin  v.  Bourne,  8  Cal.  294;  Palmer  v.  Rey- 
nolds, 3  Cal.  396;  Pierce  v.  Payne,  14  Cal.  420; 
Weaver  v.  Page,  6  Cal.  685. 

6.  Cases  under  subdivision  6.  Stevens  v.  Irwin, 
15  Cal.  504;  76  Am.  Dec.  500;  Adams  v.  Pugh, 
7  Cal.  150;  Ritchie  v.  Bradshaw,  5  Cal.  228; 
Knowles  v.  Joost,  13  Cal.  620;  Brown  v.  Smith, 
10  Cal.  508;  Gagliardo  v.  Hoberlin,  18  Cal.  394; 
Lewis  V.  Covillaud,  21  Cal.  178;  OuUahan  v. 
Starbuck,  21  Cal.  413;  Tebbs  v.  Weatherwax, 
23  Cal.  58;  Preston  v.  Keys.  23  Cal.  193;  Lubeck 
V.  Bullock,  24  Cal.  338;  Ellis  v.  Jeans,  26  Cal. 
275;  Wilcoxson  v.  Burton,  27  Cal.  232;  87  Am. 
Dec.  66:  Wilkinson  v.  Parrott,  32  Cal.  102;  Kim- 
ball V.  Gearhart,  12  Cal.  27;  Johnson  v.  Parks, 
10  Cal.  446:  Algier  r.  Maria,  14  Cal.  167:  John- 
son v    Pendleton,  1  Cal.  133;   Scannell  v.  Strahle, 

9  Cal.  177;  Weddle  v.  Stark,  10  Cal.  301;  Bens- 
ley  v.  Atwill,  12  Cal.  240;  Ritter  v.  Stock,  12 
Cal.  402;  McGarrily  v.  Byington,  12  Cal.  432; 
Visher  v.  Webster,  13  Cal.  60;  Doe  v.  Vallejo, 
29  Cal.  386;  Wilson  v.  Cross,  33  Cal.  60;  Appeal 
of  Piper,  32  Cal.  530;  Appeal  of  Brooks,  32  Cal. 
559;  Kile  v.  Tubbs,  32  Cal.  333;  Hill  v.  Smith, 
32  Cal.  166;  Bernal  v.  Gleim,  33  Cal.  669;  Maine 
Bovs  Tunnel  Co.  v.  Boston  Tunnel  Co.,  37  Cal. 
40;  Phelps  v.  Union  Copper  Min.  Co.,  39  Cal. 
407;   Dickey  v.  Davis,   39   Cal.   565. 

7.  Cases  under  subdivision  7.  Carpenter  v. 
Norris,  20  Cal.  437;  Zeigler  v.  Wells  Fargo  & 
Co.,  28  Cal.  263;  Kiler  v.  Kimbal,  10  Cal.  267; 
Clark  v.  Lockwood,  21  Cal.  220;  Mills  v.  Barney, 
22  Cal.  240;  Hicks  v.  Whitesides,  23  Cal.  404; 
Yankee  Jim's  Union  Co.  v.  Crary,  25  Cal.  507; 
85  Am.  Dec.  145;  Janson  v.  Brooks,  29  Cal.  214; 
De  Merle  v.  Mathews,  26  Cal.  467;  Jones  v. 
Tuolumne  County  Water  Co.,  25  Cal.  404;  Has- 
kell V.  McHenry,  4  Cal.  411;  Perlberg  v.  Gorham, 

10  Cal.  125;  Smith  v.  Harper,  5  Cal.  329;  Rice 
V.  Gashirie,  13  Cal.  53;  Innis  v.  Steamer  Sena- 
tor, 1  Cal.  462;  54  Am.  Dec.  305;  San  Francisco 
V.  Clark,  1  Cal.  386;  Carrington  v.  Pacific  Mail 
S.  S.  Co.,  1  Cal.  478;  Yonge  v.  Pacific  Mail  S.  S. 
Co.,  1  Cal.  354;  Dwinelle  v.  Henriquez,  1  Cal. 
390;  Darst  v.  Rush,  14  Cal.  83;  McCloud  v. 
O'Neall,  16  Cal.  392;  Cravens  v.  Dewey,  13  Cal. 
42;  Coghill  v.  Boring,  15  Cal.  213;  Santillan  v. 
Moses,  1  Cal.  92;  Wilkinson  v.  Parrott,  32  Cal. 
102;  Tompkins  v.  Mahoney,  32  Cal.  231;  Coch- 
ran V.  O'Keefe,  34  Cal.  554;  Richardson  v.  Kier, 
37  Cal.  263. 

8.  Cases  in  which  new  trials  have  been  refused 
because  the  error  was  immaterial.  Gaven  v.  Dop- 
man, 5  Cal.  342;  McKinney  v.  Smith,  21  Cal. 
374;  Janson  v.  Brooks,  29  Cal.  214;  Kiler  v. 
Kimbal,  10  Cal.  267;  Yankee  Jim's  Union  Water 
Co.  V.  Crary,  25  Cal.  507;  85  Am.  Dec.  145; 
Clark  V.  Lockwood,  21  Cal.  220;  Mills  v.  Barney, 
22  Cal.  240;  Hicks  v.  Whiteside,  23  Cal.  404; 
De  Merle  v.  Mathews,  26  Cal.  467;  Jones  v. 
Block.  30  Cal.  227:  Zeigler  v.  Wells  Fargo  & 
Co.,  28  Cal.  263;  Kile  v.  Tubbs,  32  Cal.  332; 
Carpenter  v.  Norris,  20  Cal.  437;  James  v.  Wil- 
liams, 31  Cal.  211;  Rice  v.  Cunningham,  29  Cal. 
492;  Tohler  v.  Folsom,  1  Cal.  213;  Sunol  v. 
Hepburn,  1  Cal.  285;  Smith  v.  Compton,  6  Cal. 
26;  Carpentier  v.  Gardiner,  29  Cal.  160;  Tyler 
V.  Green,  28  Cal.  406;  87  Am.  Dee.  130;  People 
V.  Moore,  8  Cal.  94;  Wilkinson  v.  Parrott.  32 
Cal.   102;   Tomokins  v.  Mahoney,  32  Cal.  231. 

9.  Equity  cases.  Same  rules  apply.  Duff  v. 
Fisher,  15  Cal.  375;  Riddle  v.  Baker,  13  Cal. 
295;  Green  v.  Butler,  26  Cal.  599;  Phelan  v. 
Ruiz,  15  Cal.  90. 

10.  When  equity  will  not  interfere.  Borland  v. 
Thornton,  12  Cal.  441;  Mastick  v.  Thorp,  29  Cal. 
444;   Collins  v.   Butler,   14   Cal.  226. 

11.  New  trial  properly  granted,  but  wrong 
reason  given  by  the  judge.  If  the  court  makes 
an  order  granting  a  new  trial,  and  order  was  cor- 
rect, the  appellate  court  will  not  set  it  aside  be- 
cause the  reason  assigned  for  it  was  wrong. 
Coghill  &  Co.  V.  Marks,  29  Cal.  673  ;  Grant  v. 
Moore,  29  Cal.  644;  Bolton  v.  Stewart,  29  Cal. 
615. 

12.  Discretion  of  the  court.  The  motion  is 
addressed  to  the  sound  discretion  of  the  court. 
Peters  v.  Foss.  16  Cal.  357;  Drake  v.  Palmer, 
2  Cal.  181;  Watson  v.  McClay,  4  C»L  288;  Has-' 


733 


MOTION   FOR  NEW   TRIAL — PAPERS — AFFIDAVIT   PROPER  WHEN. 


§658 


tings  V.  Steamer  Uncle  Sam,  10  Cal.  841;  Iturnctt 
V.  Whitesides,  15  Cal.  3(5;  Quinn  v.  Keiivon,  -2 
Cal.  82;  O'Brien  v.  Brady,  23  Cal.  24:!;  Wcddle 
V.  Stark,  10  Cal.  301;  Lestrade  v.  Barth,  17  Cal. 
285.  The  court  may  deny  tlie  miition  for  a  new 
trial,  even  th(nip;h  both  parties  consent.  Phelan 
T.  Ruiz.   15  Cal.  90. 

13.  Terms  may  be  imposed.  Baitello  v.  Conner, 
6  Cal.  140:  Kice  v.  Gashirie,  13  Cal.  54;  Bene- 
dict V.  Cozzons,  4  Cal.  3S2;  Tyson  v.  Wells,  1 
Cal.  378;  Chai)in  v.  Bourne,  8  Cal.  296;  Car- 
pentier  v.  Garilincr,  29  Cal.  160. 

14.  Motiou  may  be  abandoned.  Stoyell  v.  Cole, 
19  Cal.  Oiij. 

15.  Stipulation  that  motion  may  be  denied.  Tf 
tlio  parties  stipulate  that  tlie  motiou  shall  be  de- 
nied, the  stipulation  concludes  them.  Brotherton 
V.  Hurt,  11   fill.  405. 

16.  Appearance  of  attorney  without  authority. 
If  an  attorney  not  authorized  to  do  so  appears 
and  conducts  a  trial,  tlie  reniedv  is  bv  motion 
for  a  new  trial.    McKinley  v.  Tuttle.  34  Cal.  235. 

17.  County  court  may  grant  new  trials.  Dor- 
sev  V.  Bnrrv,  24  Cal.  455;  Dickinson  v.  Van 
Horn,   9   Cal.'  211. 

18.  Law  of  the  case.  If  the  appellate  court 
consider  and  decide  a  point  of  law  on  a  case  on 
appeal,  and  reverse  the  judgment,  and  remand  the 
cause  for  a  new  trial,  the  point  so  passed  upon 
becomes  the  law  of  the  case  in  all  its  future 
stages.  Table  Jlountain  Tunnel  Co.  v.  Stranahan, 
21  Cal.  548:  Lucas  v.  San  Francisco,  28  Cal. 
591;  Kstate  of  Pacheco,  29  Cal.  224;  Mulford  v. 
Estudillo,  32  Cal.  131;  Kile  v.  Tubbs,  32  Cal. 
332:  Argenti  v.  Sawyer,  32  Cal.  414;  Hubbard 
V.  Sullivan,  18  Cal.  503;  Soule  v.  Ritter,  20 
Cal.  522;  Leese  v.  Clark,  20  Cal.  387:  Heirs  of 
Nieto  V.  Carpenter,  21  Cal.  455;  Mitrhell  v.  Davis, 
23  Cal.  381;  Moore  v.  Murdock,  26  Cal.  524. 

19.  Generally.  If  several  dei'enses  arc  pleaded, 
either  of  which  would  be  good,  and  the  verdict 
is  for  the  defendants,  and  the  court  errs  in  its 
instructions    to    the    jury    as    to    one    of    the    de- 


fenses, the  judgment  will  be  reversed,  unlets  it 
ai)pears  thai  the  verdict  was  rendered  on  one 
uf  the  defenses  in  relation  to  which  no  error  wus 
committed.  Wiseman  v.  McN'ulty,  25  Cal.  234. 
If  a  defense  is  of  a  nature  re<iuiring  it  to  be 
specially  pleaded,  the  omission  to  plead  it  is  not 
cured  by  the  introduction,  without  olijection,  of 
evidence  in  support  of  it,  and  the  flndiiie  uf  fact 
in  relation  to  it  by  the  court.  McComb  v.  Reed, 
28  Cal.  281;  87  Am.  Dec.  115;  Smith  v.  Owens. 
21  Cal.  11.  If  the  jury,  without  instruclion  from 
the  court,  return  a  verdict  for  cold  coin,  though 
there  was  no  evidence  that  either  on  or  after 
striking  a  balance  between  the  parties  the  de- 
fendant promised  in  writing  to  pay  in  gold  coin, 
a  new  trial  will  be  granted.  Howard  v.  Roeben, 
33  Cal.  399.  If  the  merits  of  the  case  were  not 
investigated  in  the  lower  courts,  by  reason  of  an 
uncertainty  as  to  the  proper  mode  of  proceeding 
under  the  provisions  of  the  Practice  Act  relating 
to  interventionn,  the  appellate  court  awarded  a 
new  trial,  although  the  decision  of  the  court  be- 
low upon  the  main  question  involved  was  ap- 
proved, and  the  only  error  disclosed  might  have 
been  cured  by  direction  to  modifv  the  judgment. 
Speyer  v.  Ihmels,  21  Cal.  280;  81  Am.  Dec.  157. 
When  the  complaint,  evidence  admitted,  the  ver- 
dict, and  judgment  are  in  harmony,  but  the 
judgment  is  erroneous  by  reason  of  a  wrong 
construction  given  to  the  description  of  land  in 
a  deed  in  evidence,  the  appellate  court  cannot 
modify  the  judgment,  but  must  reverse  it,  and 
remand  the  cause  for  a  new  trial.  Hicks  v. 
Coleman,  25  Cal.  145;  85  Am.  Dec.  ]03.  Injury 
is  presumed  from  illegal  evidence  admitted,  and 
the  prevailing  party  must  rebut  this  presumption, 
or  a  new  trial  will  be  granted.  Grimes  v.  Fall, 
15  Cal.  63.  New  trials  should  be  granted  when- 
ever justice  requires  it.  Ross  v.  Austill,  2  Cal. 
183;  Reed  v.  Jourdin,  1  Cal.  102.  On  motion 
for  a  new  trial,  the  court  cannot  reverse  its  first 
judgment  and  render  another.  Mitchell  v.  Hackett, 
14  Cal.  661. 


§  658.  Motion  for  new  trial.  Papers.  When  the  application  is  made 
for  a  cause  mentioned  in  the  first,  -second,  tliird  and  fourth  subdivisions 
of  the  last  section,  it  must  be  made  upon  affidavits ;  otherwise  it  must  be 
made  on  the  minutes  of  the  court. 


Mode  of  application  for  new  trial. 

1.  Affidavits,  on.      Post,  §  659,  subd.  1. 

2.  Minutes  of  court,  on.     Post,  §  659,  subd.  4. 

3.  Bill  of  exceptions,  on.    Post,  §  659,  subd.  2. 

4.  Statement  of  case,  on.    Post,  §  659,  subd.  3. 

Legislation  8  658.  1.  Enacted  March  11,  1873, 
and  then  read;  "When  the  application  is  made 
for  a  cause  mentioned  in  the  fifth,  si.xth,  and 
seventh  subdivisions  of  the  last'  section,  it  is 
made  upon  bills  of  exception  on  file;  for  any 
other  cause  it  is  made  upon  affidavit.  If  the  ap- 
plication is  made  upon  affidavits,  the  affidavits 
of  the  moving  party  must  be  filed  with  the  clerk 
and  served  upon  the  adverse  party,  within 
twenty-five  days  after  the  verdict  or  decision  is 
made.  The  adverse  party  may  file  counter  affi- 
davits within  five  days  thereafter,  and,  upon 
leave  of  the  court  or  judge,  the  moving  party 
may  within  five  days  file  atfidavits  in  rebuttal." 

3.  Amended  by  Code  Amdts.  18  73-74,  p. 
314    (compare  changes  therefrom   in   1915). 

3.  Amendment  by  Stats.  1901,  p.  149;  un- 
constitutional.     See    note    ante,  §  5. 

4.  .\niended  by  Stats.  1915,  p.  201,  substi- 
tuting "otherwise  it  must  be  made  on  the  min- 
utes of  the  court"  for  "for  any  other  cause  it 
may  be  made,  at  the  option  of  the  moving  party, 
cither  upon  the  minutes  of  the  court,  or  a  bill 
of  exceptions,  or  a  statement  of  the  case,  pre- 
pared  as  hereinafter  provided." 

Amendments,  in  1915,  of  sections  relating  to 
new  trials  and  appeals.  The  Commonwealth  Club 
of  California,  after  the  close  of  the  session  of  the 
legislature  in   1915,  issued  a  pamphlet  prepared 


by  the  bar  associations  of  the  state,  making  spe- 
cific reference  to  some  of  the  matters  afTccted  in 
making  the  changes  to  eliminate  the  delays  in  ap- 
peals and  motions  for  a  new  trial.  It  is  said: 
"§  658  is  amended  to  require  motions  for  a  new 
trial  to  be  made  on  the  minutes  of  the  court,  e.\- 
cepting  in  the  cases  mentioned  in  the  first  four 
subdivisions  ..f  S657;  .  .  .  S  659  is  amended  to 
compel  the  giving  of  notice  of  intention  to  move 
for  a  new  trial  within  ten  days;  to  prohibit  the 
extension  of  this  time  ;  and  to  limit  the  time  within 
which  affidavits  may  be  prepared  under  the  first 
four  subdivisions  of  S  657.  .  .  .  S  660  is  amended 
to  require  the  motion  for  a  new  trial  to  be  made 
orally,  while  the  matters  are  fresh  in  the  minds 
of  court  and  counsel,  and  to  allow  the  widest  lati- 
tude in  referring  to  all  proceedings  on  the  trial 
without  any  bill  of  exceptions,  statement,  or  spe- 
cifications; .  .  .  also  makes  it  mandatory  on  the 
court  to  dispose  of  the  motion  within  three  months, 
g  963  is  amended  by  striking  out  the  provisions 
relating  to  appeals  from  orders  granting  or  refus- 
ing a  new  trial.  The  amendment  does,  however, 
allow  an  appeal  from  an  order  granting  a  new 
trial  in  an  action  or  proceeding  tried  by  a  jury 
when  such  trial  by  jury  is  a  matter  of  right,  .  .  . 
[and]  from  an  interlocutory  decree  of  divorce: 
this  provision  is  taken  from  the  Civil  Code.  .  .  . 
The  time  for  taking  such  appeal  is,  however,  fixed 
at  sixty  days.  .  .  .  g  939  is  amended  to  reduce  to 
uniformity  the  time  to  appeal  in  all  cases  from 
judgments  or  orders  of  the  superior  court.  .  .  • 
It  is,  however,  provided  that  the  time  to  appeal 
shall  not  expire,  if  proceedings  on  motion  for  new 
trial  are  pending,  until  thirty  days  after  the  ae- 


§658 


NEW   TRIALS. 


734 


termination  in  the  trial  court  of  such  motion  for 
a  new  trial.  ...  §  641b,  providing  for  appeals 
under  the  alternative  method,  is  amended  to  limit 
the  time  for  appeals  to  sixty  days,  thus  making 
it  conform  to  the  provisions  of  S  939  as  amended 
While,  with  the  e.\ception  of  the  single  case  of 
the  appeal  from  the  order  granting  a  new  trial 
in  jury  cases,  separate  appeals  from  orders  grant- 
ing or  denying  new  trials  will  no  longer  be  per- 
mitted, a  litigant  is  not,  .  .  .  denied  the  right  to 
review  any  order  on  motion  for  a  new  trial.  By 
an  amendment  to  g  956  it  is  provided  that  on  ap- 
peal from  a  judgment  any  order  on  motion  for 
new  trial  may  be  reviewed.  For  the  purpose  of 
allowing  an  appellant  to  present  all  matters  on 
a  single  record,  8  650,  relating  to  bills  of  excep- 
tions, is  amended,  extending  the  time  within  which 
to  prepare  and  serve  a  copy  of  the  bill  to  ten  days 
after  notice  of  decision  denying  the  motion  for  a 
new  trial  or  other  determination  thereof.  It  is 
expressly  provided  .  .  .  that  such  bills  may  con- 
tain all  matters  reviewable  on  the  same  appeal, 
whether  ...  at  the  trial  or  on  the  motion  for  a 
new  trial.  §  953a  is  also  amended  to  allow  an 
appellant  ten  days  after  the  entry  of  the  order 
denying  the  motion  for  a  new  trial  or  other  de- 
terrnination  thereof  within  which  to  prepare  his 
record  under  the  alternative  system;  .  .  .  to  make 
it  clear  that  all  appeals  may  be  presented  by  this 
method,  and  that  all  matters  reviewable  on  ap- 
peal from  a  judjiment  may  be  presented  on  the 
same  record.  This,  under  the  terms  of  §  956,  in- 
cludes orders  on  motion  for  a  new  trial.  .  .  .  The 
amendment  above  referred  to,  §  659,  has  the  effect 
of  abolishing  the  statement  of  the  case." 

Affidavit  proper  when.  An  affidavit,  al- 
leging facts  showing  irregularity  in  the 
proceedings  of  the  court,  made  solely  on 
information  and  belief,  is  unavailing  for 
anv  purpose.  Gay  v.  Torrance,  145  Cal. 
144;  78  Pac.  540.  A  motion  for  a  new 
trial,  on  the  grounds  of  irregularity  in 
the  proceedings  of  the  jury,  and  miscon- 
duct, must  be  supported  by  affidavits  set- 
ting forth  the  facts  constituting  the  irreg- 
ularity or  the  misconduct  (Benjamin  v. 
Stewart,  61  Cal.  605) ;  and  a  motion  for 
a  new  trial  on  the  ground  of  accident  or 
ourprise  must  be  made  upon  affidavits. 
Melde  v.  Reynolds,  120  Cal.  234;  52  Pac. 
491.  Newly  discovered  evidence,  relied  on 
to  obtain  a  new  trial,  has  no  place  in  a 
statement:  it  should  be  presented  in  affi- 
davits. Beans  v.  Emanuelli,  36  Cal.  117. 
The  moving  party  is  entitled  to  have  such 
competent  affidavits  as  are  material  to  a 
motion,  and  are  seasonably  served  and 
filed,  considered  on  the  hearing  of  the 
motion,  and  also  reply  affidavits  to  counter- 
affidavits;  but  an  affidavit,  made  on  in- 
formation and  belief,  on  the  ground  of 
irregularity,  is  properly  stricken  from  the 
files.  Gay  v.  Torrance,  145  Cal.  144;  78 
Pac.  540.  Affidavits  used  on  the  hearing 
of  a  motion  for  a  new  trial  cannot  be  con- 
sidered on  appeal,  unless  they  are  incor- 
porated into  a  bill  of  exceptions.  Manuel 
V.  Flynn,  5  Cal.  A  pp.  .319;  90  Pac.  4G3. 

Necessity  for  bill  of  exceptions.  Where 
the  notice  of  intention  to  move  for  a  new 
trial  stated  that  the  motion  would  be  made 
on  a  bill  of  exceptions,  but  none  was  pre- 
sented to  the   trial  court  or   to   the  court 


on  appeal,  neither  court  can  review  the 
case  as  to  alleged  errors  of  law  or  as  to 
the  insufficiency  of  the  evidence.  Pereira 
V.  City  Savings  Bank,  128  Cal.  45;  60  Pac. 
524.  A  motion  for  a  new  trial,  so  far  as 
it  is  based  on  a  bill  of  exception.s,  is  based 
and  must  be  determined  on  the  bill  as  cer- 
tified and  filed,  or  as  previously  corrected 
under  §  473,  ante.  Merced  Bank  v.  Price, 
152Caf.  697;93Pac.  866. 

Bill  of  exceptions  proper  when.  The 
refusal  to  allow  a  supplemental  answer, 
though  an  abuse  of  discretion,  may  be  in- 
corporated in  a  bill  of  exceptions,  it  being 
deemed  excepted  to  under  §  647.  ante,  and 
need  not  be  presented  by  affidavit.  See- 
horn  V.  Big  Meadows  etc.  Road  Co.,  60  Cal. 
240.  A  motion  for  a  new  trial,  on  the 
ground  of  error  of  law  or  insufficiency  of 
evidence,  must  be  made  upon  bills  of  ex- 
ceptions on  file.  Kelly  v.  Larkin,  47  Cal. 
58.  An  order  directing  a  conveyance  of 
real  estate  by  an  executor  is  properly 
brought  up  on  appeal  by  bill  of  exceptions. 
Estate  of  Corwin,  61  Cal.  160. 

Statement  proper  when.  A  notice  of 
motion  for  a  new  trial,  stating  that  the 
motion  would  be  made  on  a  statement  and 
affidavits,  is  improper,  when  made  upon 
the  ground  of  the  misconduct  of  the  jury: 
a  statement,  in  such  case,  is  unauthorized. 
Saltzman  v.  Sunset  Telephone  etc.  Co.,  125 
Cal.  501;  58  Pac.  169. 

Specification  of  error  required.  A  speci- 
fication in  the  notice  of  intention  to  move 
for  a  new  trial,  that  such  motion  will  be 
made  on  account  of  errors  of  law  occurring 
at  the  trial,  and  excepted  to  by  the  plain- 
tiffs, is  all  the  specification  of  error  that 
is  necessarv.  Martin  v.  Southern  Pacific 
Co.,  150  Cal.  124;  88  Pac.  701.  A  motion 
for  a  new  trial,  made  upon  a  statement 
that  contains  no  specifications  of  the  par- 
ticular errors  relied  on,  must  be  disre- 
garded. Johnston  v.  Blanchard,  16  Cal. 
App.  321;  116  Pac.  973. 

Deposition  regarded  as  affidavit  when. 
The  deposition  of  a  deputy  sheriff,  in 
charge  of  a  jury,  must  be  regarded  as  an 
affidavit,  on  the  motion  for  a  new  trial, 
where  the  deputy  refuses  to  make  an  affi- 
davit. Saltzman  v.  Sunset  Telephone  etc. 
Co..  125  Cal.  501;  58  Pac.  169. 

Motion  denied  when.  Where  the  state- 
ment on  motion  for  a  new  trial  is  stricken 
from  the  files,  the  motion  is  properly  de- 
nied. Sutton  v.  Svmons,  100  Cal.  576;  35 
Pac.  158;  Symons  v.  Bunnell,  101  Cal.  223; 
35  Pac.  770.' 

Admissibility  on  application  for  new  trial  on 
ground  of  newly  discovered  evidence  of  afftdavit 
of  others  than  witnesses  themselves  to  show  such 
evidence.     See  note  14  Ann.  Cas.  42-3. 

CODE  COMMISSIONERS'  NOTE.  The  court 
may  exclude  affidavits  filed  on  a  motion  for  a 
new  trial,  which  are  written  in  a  foreign  lan- 
guage.   Spencer  v.  Duane,  23  Cal.  419. 


735 


NOTICE  OK  AMOTION — UPON  WHOM  SERVED — CONTENTS. 


§G59 


§  659.     Notice   of  motion.     Upon   whom  served,   and  what  to   contain. 

The  party  iiitendiiiy  lu  move  l\»i-  a  new  ti'ial  must,  within  Icii  <l;iys  al'ter 
receiving  notice  of  the  entry  of  the  judgment,  or  within  ten  days  after  ver- 
dict, if  the  trial  was  by  jury,  file  with  the  clerk  and  serve  upon  the  adverse 
party  a  notice  of  his  intention  to  move  for  a  new  trial,  <Iesignating  the 
grounds  upon  which  the  motion  will  be  made  and  whether  the  same  will 
be  made  upon  affidavits  or  the  minutes  of  the  court  or  both.  The  time 
above  specified  shall  not  be  extended  by  order  or  stipulation.  If  the  motion 
is  to  be  made  upon  affidavits,  the  moving  party  must,  within  ten  days  after 
serving  the  notice,  or  such  further  time  as  the  court  in  which  the  action  is 
pending,  or  a  judge  thereof,  may  allow  (but  not  to  exceed  twenty  days' 
additional  time)  file  such  affidavits  with  the  clerk  and  serve  a  copy  thereof 
upon  the  adverse  party,  who  shall  have  ten  days  thereafter,  or  such  furthijr 
time  as  the  court  may  allow  (not  exceeding  twenty  days'  additional  time) 
to  file  counter-affidavits  and  serve  a  copy  thereof  upon  the  moving  j)arty. 


Bill  of  exceptions. 

1.  Settling.    Ante,  §  650. 

2.  Extension  of  time.    Post',  §  1054. 

Time  to  except  to  court  commissioner's  report 
on  matters  other  than  issues  of  fact  raised  by 
pleadings.    Ante,  §  259. 

Legislation  8  659.  1.  Enacted  March  11.  1872; 
based  im  Practice  Act,  §  623,  which  read:  "The 
application  shall  be  made  upon  aflklavit  and 
notice.  The  af^davit  shall  be  filed  with  the  jus- 
tice, with  a  statement  of  the  grounds  upon  which 
the  party  intends  to  rely.  The  adverse  party 
may  use  counter-affidavits  on  the  motion,  pro- 
vided they  be  tiled  one  day  previous  to  the  hear- 
ing of  the  motion."  When  enacted  in  1872, 
§  659  read:  "The  party  intending  to  move  for  a 
new  trial  must,  within  thirty  days  after  the 
decision  or  verdict,  file  with  the  clerk  and  serve 
upon  the  adverse  party  a  notice  of  his  intention, 
designating  therein  generally  the  grounds  upon 
v.-hich  the  motion  will  be  made,  and  llie  time  and 
place  at  which  it  will  be  brought  on  for  hear- 
ing. The  time  designated  must  be  not  less  than 
ten  nor  more  than  twenty  days  after  service  of 
the   notice." 

2.  Amended  by  Code  Amdts.  1873-74, 
p.  315,  to  read:  "§659.  The  party  intending 
to  move  for  a  new  trial  must,  within  ten  days 
after  the  verdict  of  the  jury,  if  the  action  were 
tried  by  a  jury,  or  after  notice  of  the  decision 
of  the  court  or  referee,  if  the  action  were  tried 
without  a  jury,  file  with  the  clerk  and  serve 
upon  the  adverse  party  a  notice  of  his  inten- 
tion, designating  the  grounds  upon  which  the 
motion  will  be  made,  and  whether  the  same  will 
be  made  upon  affidavits  or  the  minutes  of  the 
court,  or  a  bill  of  exceptions,  or  a  statement  of 
the  case:  One.  If  the  motion  is  to  be  made  upon 
affidavits,  the  moving  party  must,  within  ten 
days  after  serving  the  notice,  or  such  further 
time  as  the  court  in  which  the  action  is  pend- 
ing, or  a  judge  thereof,  may  allow,  file  such  affi- 
davits with  the  clerk,  an(l  serve  a  copy  upon 
the  adverse  party,  who  shall  have  ten  days  to 
file  counter-affidavits,  a  copy  of  which  must  be 
served  upon  the  moving  party.  Two.  If  the 
motion  is  to  be  made  upon  a  bill  of  exceptions, 
and  no  bill  has  already  V)een  settled  as  herein- 
before provided,  the  moving  party  shall  have 
the  same  time  after  service  of  the  notice  to 
prepare  and  obtain  a  settlement  of  a  bill  of  ex- 
ceptions as  is  provided  after  tlic  entry  of  judg- 
ment, or  after  receiving  notice  of  such  entry 
by  section  six  hundred  and  fifty,  and  the  bill 
sliall  be  prepared  and  settled  in  a  similar  man- 
ner. If  a  bill  of  exceptions  has  been  already 
settled  and  filed,  when  the  notice  of  motion  is 
given,    such    bill    shall    be   used    on    the    motion. 


Three.  If  the  motion  is  to  be  made  upon  a  state- 
ment of  the  ease,  the  moving  party  must,  within 
ten  days  after  service  of  the  notice,  or  such 
further  time  as  the  court  in  which  the  action 
is  pending,  or  the  judge  thereof,  may  allow,  pre- 
pare a  draft  of  the  statement,  and  serve  tho 
same,  or  a  copy  thereof,  upon  the  adverse  party. 
If  such  proposed  statement  be  not  agreed  to  by 
the  adverse  party,  he  must,  within  ten  day's 
thereafter,  prepare  amendments  thereto,  and 
serve  the  same,  or  a  copy  thereof,  upon  the 
moving  party.  If  the  amendments  be  adopted, 
the  statement  shall  be  amended  accordingly,  and 
then  presented  to  the  judge  who  tried  or  heard 
the  cause,  for  settlement,  or  be  delivered  to 
the  clerk  of  the  court  for  the  judge.  If  not 
adopted,  the  proposed  statement  and  amend- 
ments shall,  within  ten  days  thereafter,  be  i)re- 
sented  by  the  moving  party  to  the  judge,  upon 
five  days'  notice  to  the  adverse  party,  or  de- 
livered to  the  clerk  of  the  court  for  the  judge; 
and  theieupon  the  same  proceedings  for  the 
s(ittlement  of  the  statement  shall  be  taken  by 
the  parties,  and  clerk,  and  judge,  as  are  re- 
((uired  for  the  settlement  of  bills  of  exception 
by  section  six  hundred  and  fifty.  If  the  action 
was  heard  by  a  referee,  the  same  proceedings 
shall  be  had  for  the  settlement  of  the  statement 
by  him  as  are  required  by  that  section  for  the 
settlement  of  bills  of  exception  by  a  referee. 
If  no  amendments  are  served  within  the  time 
designated,  or,  if  served,  are  allowed,  the  pro- 
posed statement  and  amendments,  if  any,  may 
be  presented  to  the  judge  or  referee,  for  settle- 
ment, without  notice  to  the  adverse  party. 
When  the  notice  of  the  motion  designates,  as 
the  ground  of  the  motion,  the  insufficiency  of 
the  evidence  to  justify  the  verdict  or  other 
decision,  the  statement  shall  specify  the  par- 
ticulars in  which  such  evidence  is  alleged  to  be 
insufficient.  When  the  notice  designates,  as  the 
ground  of  the  motion,  errors  in  law  occurring 
at  the  trial,  and  excepted  to  by  the  moving 
party,  the  statement  shall  specify  the  particular 
errors  upon  which  the  party  will  rely.  If  no 
such  specifications  be  made,  the  statement  shall 
be  disregarded  on  the  hearing  of  the  motion. 
It  is  the  duty  of  the  judge  or  referee,  in  settling 
the  statement,  to  strike  out  of  it  all  redundant 
and  useless  matter,  and  to  make  the  statement 
truly  represent  the  case,  notwithstanding  the 
assent  of  the  parties  to  such  redundant  or  use- 
less matter,  or  to  any  inaccurate  statement. 
When  settled,  the  statement  shall  be  signed  by 
the  judge  or  referee,  with  his  certificate  to  the 
effect  that  the  same  is  allowed,  and  shall  then 
be  filed  with  the  clerk.  Four.  When  the  mo 
tion  is  to  be  made  upon  the  minutes  of  the 
court,  and  the  ground  of  the  motion  is  the  in- 
sufficiency   of    the    evidence    to   justify    the    ver- 


§659 


NEW    TRIALS. 


736 


diet  or  other  decision,  the  notice  of  motion  must 
specify  the  particulars  in  which  the  evidence  is 
alleged  to  be  insufficient;  and,  if  the  ground  of 
the  motion  be  errors  in  law  occurring  at  the 
trial,  and  excepted  to  by  the  moving  party,  the 
notice  must  specify  the  particular  errors  upon 
which  the  party  will  rely.  If  the  notice  do  not 
contain  the  specifications  here  indicated,  when 
the  motion  is  made  on  the  minutes  of  the  court, 
the   motion  must  be   denied." 

3.  Amendment  by  Stats.  1901,  p.  149;  un- 
constitutional.    See  note  ante,  §  .5. 

4.  Amended  by  Stats.  1907,  p.  717,  (1)  in 
introductory  paragraph,  substituting  "receiving 
notice  of  the  entry  of  the  judgment"  for  "the 
verdict  of  the  jury,  if  the  action  were  tried  by 
a  jury,  or  after  notice  of  the  decision  of  the 
court  or  referee,  if  the  action  were  tried  without 
a  jury";  (2)  throughout  the  section,  making 
rhetorical  and  grammatical  changes,  not  sub- 
stantially affecting  the  meaning;  the  code  com- 
missioner saying,  "The  amendment  fixes  the  no- 
tice of  the  entry  of  a  judgment  as  the  period 
from  which  to  compute  the  time  for  moving  for 
a  new  trial." 

5.  Amended  by  Stats.  1915,  p.  201,  (1) 
recasting  the  introductory  paragraph  and  subds. 
1  and  2;    (2)   striking  out  subds.  3  and  4. 

Construction  of  section.  The  three  steps, 
under  the  Practice  Act,  to  obtain  a  new 
trial  were:  1.  A  notice  of  intention;  2.  Fil- 
ing anil  serving  a  statement  or  affidavits; 
3.  Motion  for  a  new  trial.  Jenkins  v. 
Frink,  27  Cal.  337.  The  right  to  move  for 
a  new  trial  is  statutory,  and  must  be  pur- 
sued in  the  manner  pointed  out  by  the 
statute.  California  Improvement  Co.  v. 
Baroteau,  116  Cal.  136;  47  Pac.  lOlS.  A 
party  who  fails  to  comply  with  the  statute 
waives  his  right  to  move  for  a  new  trial. 
Caney  v.  Silverthorne,  9  Cal.  67;  Wing  v. 
Owen,  9  Cal.  247;  Easterby  v.  Larco,  24 
Cal.  179;  Bear  Eiver  etc.  Mining  Co.  v. 
Boles.  24  Cal.  3.54;  Ellsassar  v.  Hunter,  26 
Cal.  279;  Jenkins  v.  Frink,  27  Cal.  337. 
A  motion  for  a  new  trial,  not  made  as  pre- 
scribed in  this  section,  is  properly  denied. 
Hill  V.  Beatty,  61  Cal.  292.  Statements 
on  motion  for  a  new  trial  will  be  disre- 
garded, unless  the  statutory  requirements 
have  been  complied  with.  Linn  v.  Twist,  3 
Cal.  S9;  Ellsassar  v.  Hunter,  26  Cal.  279; 
Vilhac  v.  Biven,  28  Cal.  410;  Le  Eoy  v. 
Eassette,  32  Cal.  171;  Barstow  v.  Newman, 
34  Cal.  90;  Green  v.  Killey,  38  Cal.  201; 
Sawyer  v.  Sargent,  65  Cal.  259;  3  Pac. 
872;  Leonard  v.  Shaw,  114  Cal.  69;  45  Pac. 
1012.  The  "notice  of  motion,"  in  the 
fourth  subdivision  of  this  section,  is  the 
same  as  the  "notice  of  intention  to  move 
for  a  new  trial,"  in  the  first  subdivision; 
and  a  party  moving  for  a  new  trial,  on  the 
minutes  of  the  court,  who  has  failed  to 
make  the  required  specifications  in  his 
notice  of  intention,  cannot  cure  the  defect, 
after  the  expiration  of  the  time  for  giving 
notice  of  intention,  by  giving  an  additional 
notice,  that  he  will  "bring  on  for  hearing 
his  motion  for  a  new  trial,"  and  by  an- 
nexing thereto  a  formal  motion  for  a  new 
trial,  together  with  specifications  of  par- 
ticulars in  which  the  evidence  was  insuf- 
ficient   and    of    the    errors    of    law    relied 


upon.  Neale  v.  Depot  Eailway  Co.,  94  Cal. 
425;  29  Pac.  954. 

Notice  of  decision.  To  set  the  time 
running  in  which  the  losing  party  to  a  suit 
must  serve  and  file  his  notice  of  intention 
to  move  for  a  new  trial,  the  successful 
party  must  serve  upon  him  a  written 
notice  of  the  decision.  Estate  of  Eichards, 
154  Cal.  47S;  98  Pac.  528.  No  particular 
form  of  notice  is  required,  nor  a  notice  of 
what  the  decision  was:  a  simple  notice,  in 
writing,  that  a  decision  has  been  rendered 
is  sufficient  (Waddingham  v.  Tubbs,  95 
Cal.  249;  30  Pac.  527");  and  this  written 
notice  of  the  filing  of  the  decision  is  re- 
quired in  all  cases,  unless  waived  by  facts 
appearing  in  the  records,  files,  or  minutes 
of  the  court  (Mallory  v.  See,  129  Cal.  356; 
61  Pac.  1123);  and  the  party  intending  to 
move  for  a  new  trial  is  entitled  to  such 
written  notice,  before  he  is  called  upon 
to  act,  although  he  was  present  in  court 
when  the  decision  was  rendered,  and 
waived  the  findings  and  asked  for  a  stay 
of  proceedings  on  the  judgment  (Biagi  v. 
Howes,  66  Cal.  469;  6  Pac.  100;  Kelleher 
V.  Creciat,  89  Cal.  38;  26  Pac.  619;  and  see 
Carpentier  v.  Thurston,  30  Cal.  123;  Eous- 
sin  V.  Stewart,  33  Cal.  208;  Sawyer  v.  San 
Francisco,  50  Cal.  370) ;  but  these  decisions 
are  overruled,  and  now  the  application  of 
the  appellant  for  a  stay  of  execution  of  the 
judgment  is  a  waiver,  as  of  that  date,  of 
the  giving  of  written  notice,  which  cannot 
be  impaired  by  the  subsequent  action  of 
another  defendant  in  serving  written  notice 
on  him.  Gardner  v.  Stare,  135  Cal.  118; 
67  Pac.  5;  Gray  v.  Winder,  77  Cal.  525; 
20  Pac.  47.  A  notice  of  intention,  in  writ- 
ing, that  "a  motion  will  be  made  to  set 
aside  and  vacate  the  judgment  heretofore 
rendered  and  entered  herein,"  constitutes 
a  sufficient  notice  that  a  decision  of  the 
court  had  theretofore  been  rendered,  to  re- 
quire the  adverse  party  to  serve  and  file 
his  notice  of  intention  within  ten  days 
thereafter  (Waddingham  v.  Tubbs,  95  Cal. 
249;  30  Pac.  527);  as  is  also  a  notice,  that 
you  will  please  take  notice  "that  a  decree, 
a  copy  of  which  is  herewith  served  upon 
you,  has  this  day  been  entered  in  this  ac- 
tion, in  accordance  with  the  decision  ren- 
dered" by  the  court  upon  a  previous  date, 
giving  the  substance  of  the  decree.  Gumpel 
V.  Castagnetto,  97  Cal.  15;  31  Pac.  898. 
Notice  of  the  decision  may  be  served  by 
mail  (Estate  of  Eichards,  i54  Cal.  478;  98 
Pac.  528);  and  a  notice  of  the  decision,  ad- 
dressed to  the  plaintiff,  and  to  his  attor- 
neys of  record,  which  was  accepted  by  one 
of  the  attorneys  named,  must  be  treated 
as  a  notice  to  and  as  accepted  by  all  of  the 
losing  parties.  Scott  v.  Glenn,  97  Cal.  513; 
32  Pac.  573. 

Notice  of  judgment.  Notice  of  rendi- 
tion of  judgment  is  not  required.  Fatjo 
V.  Swasey,  111  Cal.  628;  44  Pac.  225. 


737 


NOTICE  OF  DECISION — PROCEEDINGS  COMMENCED  WHEN. 


§659 


Waiver  of  notice  of  decision.  Notic-e 
of  the  decision  may  be  waiveJ  (Estate  of 
Ric-hurds,  154  Cal.  478;  98  Pac.  528);  and 
where  the  record  shows  that  the  jnirty  en- 
titled to  notice  acted  in  court  as  if  he  had 
formal  notice  of  the  decision,  such  action 
constitutes  a  waiver  of  formal  notice  (Gray 
V.  Winder,  77  Cal.  525;  20  Pac.  47;  and  see 
Cottle  V.  Leitch,  4.3  Cal.  320;  Thorno  v. 
Finn,  69  Cal.  251;  10  Pac.  414);  and  where 
the  moving  party  recites  that  the  court 
has  filed  its  findings,  he  will  not  be  heard 
to  say  that  he  had  no  notice  of  such  find- 
ings. California  Im|)rovement  Co.  v.  Baro- 
teau,  116  Cal.  136;  47  Pac.  1018.  A  notice 
of  motion  for  a  new  trial,  made  one  year 
after  judgment,  but  technically  within  the 
time  allowed  by  law,  there  having  been  no 
formal  notice  of  the  rendition  of  judgment, 
is  properly  denied,  where  the  appellant's 
counsel  knew  of  its  rendition  from  the 
date  thereof.  Preston  v.  Eureka  etc.  Stone 
Co.,  54  Cal.  198.  Actual  notice  or  knowl- 
edge, other  than  written,  is  insufficient,  in 
any  case,  unless  it  appears  from  the  facts 
that  written  notice  was  waived  (Mallory 
V.  See,  129  Cal.  356;  61  Pac.  1123);  and 
the  evidence  of  waiver  must  be  clear  and 
uncontradicted,  and  not  dependent  upon 
oral  testimony  or  ex  parte  affidavits. 
Gardner  v.  Stare,  135  Cal.  118;  67  Pac.  5. 
Consent  to  entry  of  judgment,  given  by 
guardians,  which  was  authorized,  renders 
written  notice  unnecessary.  San  Fernando 
Farm  etc.  Ass'n  v.  Porter,  58  Cal.  81. 
Written  notice  is  waived  by  moving  to  dis- 
miss the  action,  on  the  grounds  that  the 
findings  had  been  made  more  than  one  year 
prior  thereto,  and  that  no  judgment  had 
t)een  entered  in  favor  of  the  plaintiff 
(Forni  v.  Yoell,  99  Cal.  173;  33  Pac.  887); 
and  also  by  moving  to  modify  and  set  aside 
the  findings  (Wall  v.  Heald,  95  Cal.  364; 
30  Pac.  551;  California  Improvement  Co.  v. 
Baroteau,  116  Cal.  136;  47  Pac.  1018);  and 
Tjy  service  of  notice  of  intention  to  move 
for  a  new  trial  (Girdner  v.  Beswick,  2  Cal. 
Unrep.  535;  8  Pac.  11;  and  see  Cottle  v, 
Leitch,  43  Cal.  320) ;  and  where,  after  find- 
ings of  fact  are  filed,  a  notice  of  motion 
for  a  new  trial  is  given,  before  tlie  ser- 
vice of  notice  of  filing  such  findings,  notice 
of  such  filing  is  rendered  unnecessary 
(Cottle  V.  Leitch,  43  Cal.  320);  but  ac- 
ceptance of  the  service  of  the  notice  of 
intention,  with  a  reservation  of  the  objec- 
tion that  the  notice  was  not  served  within 
the  time  allowed  by  law,  is  not  a  waiver 
(Gumpel  V.  Castagnetto,  97  Cal.  15;  31 
Pac.  898)  ;  nor  is  proceeding  to  act  under 
the  decision,  proven  merely  by  the  affi- 
davit of  the  opposite  party,  a  waiver. 
Mallory  v.  See,  129  Cal.  356;  61  Pac.  1123. 
The  fact  that  the  moving  parties  were 
minors  at  the  time  of  judgment  is  imma- 
terial, where  they  commenced  and  prose- 
1  F.iir.— 47 


cutcd   the  aftion    to   final  judgment.    Gray 
V.  Winder,  77  Cal.  525;  20  l':i<-.   )7. 

Motion  for  new  trial  proper  when.  An 
apjdiiation  to  set  aside  a  judgment,  where 
the  moving  party  was  represented  by  an 
attorney  at  the  trial,  which  resulted  in  the 
rendition  of  smh  judgment,  shoubi  be  by 
a  motion  for  a  new  trial.  McKinlev  v. 
Tuttle,:!4  Cal.  2:;5. 

When  proceedings  may  be  commenced. 
Xo  proceedings  for  a  new  trial  can  be  h.'id 
until  after  the  trial  and  decision  by  a  jury 
or  court;  in  suits  in  equity,  the  findings  of 
the  jury  are  merely  advisory;  a  case  has 
not  been  tried  until  all  the  issues  have 
been  disposed  of,  and  there  has  been  no 
decision  until  the  court  has  passed  on  the 
facts  and  drawn  its  conclusions  therefrom. 
Bell  V.  Marsh,  80  Cal.  411;  22  Pac.  170. 
Proceedings  on  motion  for  a  new  trial  are 
premature,  where  they  were  based  on  a 
minute-entry  of  the  decision,  unsigned  by 
the  judge,  and  not  entered  in  the  judg- 
ment-book, and  after  the  verdict  was  filed 
the  case  was  reserved  and  submitted  for 
further  consideration  and  decision.  Foun- 
tain Water  Co.  v.  Dougherty,  134  Cal.  376; 
66  Pac.  316.  The  filing  of  additional  find- 
ings, inadvertently  omitted,  by  the  court, 
of  its  own  motion,  does  not  render  a  notice 
of  intention  premature,  where  made  after 
the  findings  and  conclusions  of  law.  Bell 
v.  Staacke,  141  Cal.  186;  74  Pac.  774.  The 
time  within  which  the  notice  of  intention 
must  be  served  does  not  begin  to  run,  in 
suits  in  equity,  until  the  court  has  adopted 
or  rejected  the  special  verdict  of  the  jurv 
(Bell  v.  Marsh,  80  Cal.  411;  22  Pac.  170); 
and  a  notice  of  motion  is  premature,  where 
it  was  given  after  the  verdict  of  the  jury 
upon  special  issues,  and  before  the  conclu- 
sion of  the  trial  and  the  determination  of 
the  remaining  issues  by  the  court  (Reclama- 
tion District  v.  Thisby,  131  Cal.  572;  63 
Pac.  918;  and  see  Bates  v.  Gage,  49  Cal. 
126);  and  a  notice  of  intention  to  move 
for  a  new  trial  and  the  presentation  of  the 
statement  for  settlement  are  premature, 
where  the  jury  had  found  upon  certain 
issues,  but  the  court  had  not  rendered  its 
decision.  James  v.  Superior  Court,  78  Cal. 
107;  20  Pac.  241.  The  proceedings  for  a 
new  trial  are  entirely  independent  of  the 
entry  of  the  judgment,  and  may  be  insti- 
tuted before  or  after  its  entry,  and  even 
while  the  appeal  from  the  judgment  is 
pending.  Brison  v.  Brison,  90  Cal.  323;  27 
Pac.  186;  and  see  Spanagel  v.  Bellinger, 
43  Cal.  476.  The  motion  for  a  new  trial 
attacks  the  verdict,  rather  than  the  judg- 
ment, and  may  be  made  prior  to  the  entry 
of  judgment.  Johnson  v.  Phenix  Ins.  Co., 
152  Cal.  196;  92  Pac.  1S2.  Where  all  the 
issues  necessary  to  final  judgment  had  been 
tried  and  determined,  and  all  that  re- 
mained  was   to   carry    the   judgment   Into 


§659 


NEW    TRIALS. 


738 


effect,  a  motion,  although  made  before  the 
coming  in  of  the  referee's  report  as  to 
community  property,  is  not  premature. 
Sharon  v.  Sharon,  79  Cal.  633;  22  Pac.  26, 
131.  Guardians  of  minors,  authorized  to 
consent  to  a  judgment  as  entered,  are  not 
required  to  be  notified  of  the  judgment,  in 
order  to  impose  on  them  the  obligation  to 
move  for  a  new  trial  within  ten  days  after 
the  entry  of  judgment.  San  Fernando 
Farm  etc.  Ass'n  v.  Porter,  5S  Cal.  81. 

Necessity  for  notice  of  intention.  Fail- 
ure to  serve  the  adverse  party  with  notice 
of  intention  is  equivalent  to  a  failure  to 
serve  an  adveise  party  with  notice  of  ap- 
peal from  the  judgment;  and  the  court 
has  no  jurisdiction  to  re-examine  an  issue 
of  fact  that  it  has  tried,  and  change  its 
decision  thereon,  unless  all  the  parties  to 
the  issue  and  the  former  decision  are  prop- 
erly before  it.  Herriman  v.  Menzies,  115 
Cal.  16;  56  Am.  St.  Eep.  82;  35  L.  R.  A. 
318;  44  Pac.  460;  46  Pac.  730;  United 
States  v.  Crooks,  116  Cal.  43;  47  Pac.  870; 
Mies  v.  Gonzalez,  155  Cal.  359;  100  Pac. 
1080;  Ford  etc.  Co.  v.  Braslan  Seed  Growers 
Co.,  10  Cal.  App.  762;  103  Pac.  946.  A 
motion  for  a  new  trial  is  a  special  proceed- 
ing within  the  case;  and  the  court  has  no 
jurisdiction  to  entertain  the  motion,  unless 
the  notice  of  intention  is  given  substan- 
tially as  prescribed.  Calderwood  v.  Brooks, 
28  Cal.  151;  Wright  v.  Snowball,  45  Cal. 
654;  Kelly  v,  Larkin,  47  Cal.  58;  Domin- 
guez  V.  Mascotti,  74  Cal.  269;  15  Pac.  773; 
6'Connell  v.  Main  etc.  Hotel  Co.,  90  Cal. 
515;  27  Pac.  373.  A  failure  to  serve  the 
notice  of  motion  for  a  new  trial  on  an  ad- 
verse party  necessitates  the  denial  of  the 
motion.  JohnSon  v.  Phenix  Ins.  Co.,  152 
Cal.  196;  92  Pac.  182;  National  Bank  v, 
Mulford,  17  Cal.  App.  551;  120  Pac.  446. 
The  making  and  filing  of  a  statement  on 
motion  for  a  new  trial  does  not  give  the 
court  jurisdiction  of  the  subject-matter  of 
a  new  trial,  where  no  notice  of  intention 
was  given  or  waived.  Bear  River  etc.  Min- 
ing Co.  v.  Boles,  24  Cal.  354.  Service  of 
the  notice  of  intention  to  move  for  a  new 
trial,  and  of  the  other  steps  in  the  prepara- 
tion of  a  bill  of  exceptions,  were  not  dis- 
pensed with  by  the  nev/ly  added  sections, 
941a,  941b,  941c,  post.  Ford  etc.  Co.  v. 
Braslan  Seed  etc.  Co.,  10  Cal.  App.  762; 
103  Pac.  946. 

Form  and  contents  of  notice  of  inten- 
tion. A  notice  of  motion  for  a  new  trial 
should  be  in  writing.  Bear  River  etc.  Min- 
ing Co.  V.  Boles,  24  Cal.  354.  The  notice 
of  intention  need  not,  in  terms,  contain  a 
notice  of  intention  to  move  that  the  de- 
cision be  vacated.  Bauder  v.  Tyrrel,  59 
Cal.  99;  and  see  Fulton  v.  Hanna,  40  Cal. 
278;  Wittenbrock  v.  Bellmer,  57  Cal.  12; 
Heinlen  v.  Heilbron,  71  Cal.  557;  12  Pac. 
673.  A  notice  designating  the  grounds  of 
the  motion,  and  stating  that  the  defendant 


will  make  and  submit  a  motion  for  a  new 
trial,  is  suflScient.  Heinlen  v.  Heilbron, 
71  Cal.  557;  12  Pac.  673;  and  see  Kimple 
V.  Conway,  69  Cal.  71;  10  Pac.  189.  The 
notice  of  intention  must  designate  the 
grounds  upon  which  the  motion  will  be 
made:  a  matter  not  stated  cannot  be  con- 
sidered by  the  trial  court  upon  the  hearing 
of  the  motion.  Sebring.  v.  Harris,  20  Cal. 
App.  56;  128  Pac.  7.  A  notice  of  motion 
which  does  not  state  whether  it  will  be 
made  on  affidavits,  minutes  of  the  court, 
bill  of  exceptions,  or  statement,  is  insuffi- 
cient. Hughes  V.  Alsip,  112  Cal.  587;  44 
Pac.  1027;  and  see  Hill  v.  Beatty,  61  Cal. 
292.  A  notice  of  intention  reciting  that  it 
will  be  made  upon  a  statement  or  bill  of 
exceptions,  and  upon  the  record  of  the 
court  and  the  minutes,  is  not  defective, 
merely  because  the  motion  is  based  on  the 
bill  of  exceptions  alone.  Duncan  v.  Times- 
Mirror  Co.,  120  Cal.  402;  52  Pac.  652.  A 
notice  that  the  defendant  will  move  to  set 
aside  the  decision  and  judgment,  setting 
out,  as  the  grounds  relied  on,  the  fourth, 
sixth,  and  seventh  subdivisions  of  §  657, 
ante,  is  sufficient.  O'Connell  v.  Main  etc. 
Hotel  Co.,  90  Cal.  515;  27  Pac.  373.  While 
the  notice  of  intention  need  state  only,  in 
general  terms,  that  the  evidence  is  insuffi- 
cient to  justify  the  decision,  yet  the  speci- 
fication must  point  out  the  particulars 
wherein  the  evidence  fails  to  sustain  the 
findings.  Molera  v.  Martin,  120  Cal.  544; 
52  Pac.  825.  A  notice  of  motion  specify- 
ing the  insufficiency  of  the  evidence  to 
support  or  justify  the  findings,  is  sufficient 
(Boston  Tunnel  Co.  v.  McKenzie,  67  Cal. 
485;  8  Pac.  22);  as  is  also  a  notice  of  mo- 
tion so  made,  specifying  merely  that  the 
evidence  is  insufficient  to  justify  the  de- 
cision. McLennan  v.  Wilcox,  126  Cal.  51; 
58  Pac.  305.  A  notice  of  intention  stating 
that  the  motion  is  made  on  the  minutes 
of  the  court,  and  failing  to  specify  the 
errors  of  law  which  will  be  relied  upon,  is 
insufficient.  Packer  v.  Doray,  4  Cal.  Unrep. 
297;  34  Pac.  628;  Estate  of  Cahill,  74 
Cal.  52;  15  Pac.  364;  Weyl  v.  Sonoma  Val- 
ley R.  E.  Co.,  69  Cal.  202;  10  Pac.  510; 
Neale  v.  Depot  Railway  Co.,  94  Cal.  425; 
29  Pac.  954;  Salisbury  v.  Burr,  5  CaL 
Unrep.  314;  44  Pac.  461;  and  see  Jue  Fook 
Sam  V.  Lord,  S3  Cal.  159;  23  Pac.  225; 
Buckley  v.  Althorf,  86  Cal.  643;  25  Pac. 
134;  McLennan  v.  Wilcox,  126  Cal.  51;  58 
Pac.  305.  Where  the  motion  for  a  new 
trial  is  made  upon  the  minutes  of  the 
court,  the  statement  of  the  grounds  for 
the  motion  is  necessary:  this  may  be  done 
by  reference  to  the  notice  of  intention  on 
file,  which  reference  may  be  incorporated 
in  the  bill  of  exceptions,  if  the  notice  is 
made  part  of  it.  Williams  v.  Hawley,  114r 
Cal.  97;  77  Pac.  762.  The  signing  of  the 
notice  of  motion  by  an  attorney,  not  of 
record,   is   of   no   avail;    and   a   waiver   of 


739 


AMENDMENT   OF    NOTICE — SERVICE — ADVERSE   PARTIES. 


§659 


the  objection  that  he  did  not  appear  as  the 
attorney  of  record,  is  not  shown  by  his 
re(*o{i;nition  as  attorney  of  record  by  the 
attorney  for  the  opposinjj  party.  McMahon 
V.  Thomas,  114  Cal.  388;  4(3  Pac  7:V2. 

Amendment  of  notice  of  intention.  The 
amendment  of  a  notice  of  intention  to 
move  for  a  new  trial,  made  after  the  ex- 
piration of  the  statutory  time  for  giving 
notice,  cannot  be  allowed.  Cooney  v.  Pur- 
long,  66  Cal.  520;  6  Pac.  388;  People  v. 
Hill,  16  Cal.  113;  Bear  River  etc.  Mining 
Co.  V.  Boles,  24  Cal.  354;  p]llsassar  v.  Hun- 
ter, 26  Cal.  279;  Le  Roy  v.  Rassette,  32 
Cal.  171.  The  trial  court  has  no  juris<lic- 
tion  to  allow  the  original  notice  to  be 
amended  so  as  to  designate  that  the  mo- 
tion will  be  made  for  the  same  causes, 
upon  the  minutes  of  the  court,  after  the 
statutory  time  for  giving  the  notice  has 
passed  (Cooney  v.  Furlong,  66  Cal.  520; 
6  Pac.  388;  and  see  Bear  River  etc.  Min- 
ing Co.  v.  Boles,  24  Cal.  354;  Thompson 
V.  Lynch,  43  Cal.  482);  and  a  notice  of 
intention,  which  fails  to  specify  the  errors 
of  law  on  which  the  motion  will  I'e  based, 
cannot  be  amended  after  the  statutory 
time,  by  inserting  such  specification  of 
errors.  Packer  v.  Doray,  98  Cal.  315;  33 
Pac.  118;  Little  v.  Jacks,  67  Cal.  165;  7 
Pac.  449. 

Waiver  of  defects  in  notice.  A  defect 
in  the  notice  of  motion,  in  not  stating  upon 
what  it  will  be  based,  is  not  waived  by 
proposing  amendments  to  the  bill,  nor  by 
participation  in  the  settlement  of  such  bill, 
as  the  appellant  is  entitled  to  use  the  bill 
of  exceptions  upon  appeal  from  the  .I'udg- 
ment  (Hughes  v.  Alsip,  112  Cal.  587;  44 
Pac.  1027);  but  an  irregularity  in  the 
notice  of  motion  is  waived  by  the  failure 
to  make  any  objection  on  the  ground  of 
such  irregularity,  either  at  the  settlement 
of  the  statement  or  on  the  hearing  of  the 
motion  (Christy  v.  Spring  Valley  Water 
Works,  68  Cal. '73;  8  Pac.  849);  and  there 
is  a  waiver  of  the  form  of  the  notice  of 
motion,  where  the  respondent's  attorneys 
stipulated  to  give  further  time  to  the  de- 
fendant to  prepare  and  serve  his  state- 
ment. O'Connell  v.  Main  etc.  Hotel  Co.,  90 
Cal.  515;  27  Pac.  373. 

Who  must  be  served.  The  notice  of  in- 
tention to  move  for  a  new  trial  must  be 
served  on  the  same  parties  on  whom  the 
notice  of  appeal  itself  would  be  served, 
that  is,  on  every  party  in  interest  to  whom 
the  subject-matter  of  the  motion  is  ad- 
verse, or  who  will  be  affected  by  the  grant- 
ing of  the  motion  or  by  the  changing  of 
the  former  decision  of  the  court.  Herri- 
man  V.  Menzies,  115  Cal.  16;  56  Am.  St. 
Rep.  82;  35  L.  R.  A.  318;  44  Pac.  660;  46 
Pac.  730.  The  new  method  of  appeal  does 
not  dispense  with  the  necessity  of  serving 
the  notice  of  intention  to  move  for  a  new 
trial,  and  of  serving  the  bill  of  exceptions 


to  be  used  thereon,  upon  all  adverse  parties. 
Ford  V.  liraslan  Heed  Growers  Co.,  10  Cal. 
App.  762;  103  Pac.  940.  Co-defendants, 
whose  interests  may  be  aiiversely  affoi-teil, 
must  be  served  with  notice:  service  on  the 
plaintifT  alone  is  not  sufTicient.  Thiited 
States  V.  Crooks.  110  Cal.  43;  47  Pac.  870. 

Adverse  parties,  who  are.  Every  party 
whose  interest  in  the  subject-matter  of  the 
motion  is  adverse,  or  wiiose  interests  will 
be  affected  by  the  granting  of  the  motion 
or  the  changing  of  the  former  decision  of 
the  court,  is  an  "adverse  partv."  Johnson 
V.  Phenix  Ins.  Co.,  152  Cal.  196;  92  Pac. 
182;  Niles  v.  Gonzalez,  155  Cal.  359;  100 
Pac.  1080;  Ford  v.  Braslan  Seed  Growers 
Co.,  10  Cal.  App.  762;  103  Pac.  946.  The 
verdict  or  findings,  rather  than  the  judg- 
ment, must  be  looked  to  to  determine 
whether  or  not  a  party  to  whom  notice 
has  not  been  given  is  an  adverse  party. 
.Tohnson  v.  Phenix  Ins.  Co.,  152  Cal.  196; 
92  Pac.  182.  The  "adverse  party"  upon 
whom  a  notice  of  intention  to  move  for  a 
new  trial  shall  be  served  is  determined  by 
the  same  rules  as  is  the  "adverse  party" 
upon  whom  a  notice  of  appeal  is  to  be 
served.  Johnson  v.  Phenix  Ins.  Co.,  152 
Cal.  196;  92  Pac.  182;  Niles  v.  Gonzalez, 
155  Cal.  359;  100  Pac.  1080.  If  an  ad- 
verse party  is  properly  served  with  notice 
of  intention  to  move  for  a  new  trial,  he 
does  not,  by  reason  of  his  death  after  such 
service,  but  before  the  motion  is  heard, 
cease  to  be  a  party  to  the  proceeding  for 
a  new  trial.  Bell  v.  San  Francisco  Sav. 
Union,  153  Cal.  64;  94  Pac.  225.  The  bur- 
den is  upon  a  respondent  moving  to  dismiss 
an  appeal  for  want  of  service  upon  an  ad- 
verse party,  to  show  from  the  record  that 
the  party  not  served  was  adverse  in  in- 
terest. Niles  V.  Gonzalez,  155  Cal.  359; 
100  Pac.  1080.  Where  a  judgment  is  one 
which,  under  the  pleadings,  properly  fol- 
lows from  the  verdict  found,  the  question 
as  to  who  are  adverse  parties  is  the  same, 
whether  determined  from  the  verdict  or 
the  judgment.  Johnson  v.  Phenix  Ins.  Co., 
152  Cal.  196;  92  Pac.  182.  The  executor 
of  a  partner,  in  whose  favor  judgment  was 
rendered  in  an  action  for  an  accounting, 
is  an  adverse  partv  (Herriman  v.  Menzies, 
115  Cal.  16;  56  Am".  St.  Rep.  82;  35  L.  R.  A. 
318;  44  Pac.  660;  46  Pac.  730) ;  but  a  party 
who  would  not  be  adversely  affected  by 
the  new  trial,  anil  who  was  made  defend- 
ant only  because  he  refused  to  join  as 
plaintiff,  and  whose  interest  is  not  men- 
tioned in  the  judgment,  is  not  an  adverse 
party.  Sjirague  v.  Walton,  145  Cal.  228; 
78  Pac.  645. 

Time  for  serving  notice.  Under  this 
section,  prior  to  the  amendment  of  1907, 
a  party  intending  to  move  for  a  new  trial 
w'as  required,  within  ten  days  after  the 
verdict,  to  file  with  the  clerk  and  serve 
ujion   the   adverse   party   a   notice   t  f  euch 


659 


NEW    TRIALS. 


740 


intention  (Brichman  v.  Ross,  67  Cal.  601; 
8  Pac.  316;  San  Francisco  Farm  etc.  Ass'n 
V.  Porter,  58  Cal.  81);  and  if  he  did  not 
give  such  notice  within  the  prescribed 
time,  his  right  to  move  was  gone.  Clark 
V.  Crane,  57  Cal.  629.  Under  the  earlier 
decisions  of  the  court,  the  time  to  serve 
notice  of  intention  did  not  commence  to 
run  until  written  notice  of  the  rendering 
of  the  decision  was  served,  where  the  action 
was  tried  by  the  court  (Roussin  v.  Stewart, 
33  Cal.  208;  Burnett  v.  Stearns,  33  Cal. 
46S),  but  written  notice  may  now  be 
waived.  Gardner  v.  Stare,  135  Cal.  118;  67 
Pac.  5.  The  decision  of  a  referee  is  not 
binding  upon  the  court  until  adopted  by  it: 
it  is  not  a  trial;  hence,  a  notice  of  motion 
for  a  new  trial  need  not  be  given  until  the 
statutory  period  after  the  confirmation  of 
the  referee's  report.  Harris  v.  San  Fran- 
cisco Sugar  Refining  Co.,  41  Cal.  393.  A 
party  giving  notice  of  motion  for  a  new 
trial  is  bound  by  that  notice:  he  cannot 
afterwards  give  a  second  notice,  and  file 
his  statement  within  the  statutory  period, 
but  more  than  that  period  after  the  first 
notice.   Le  Eoy  v.  Rassette,  32  Cal.  171. 

Extension  of  time  for  serving  notice. 
The  court  may  extend  the  time  within 
W'hich  to  give  notice  of  motion  for  a  new 
trial  (Harper  v.  Minor,  27  Cal.  107);  under 
§  1054,  post,  when  asked  for  before  the  ex- 
piration of  the  statutory  ten  days  required 
by  this  section  (Burton  v.  Todd.  6S  Cal. 
485,  9  Pac.  663,  overruling  Brichman  v. 
Ross,  67  Cal.  601;  8  Pac.  316;  and  sea 
Clark  V.  Crane,  57  Cal.  629;  Hook  v.  Hall, 

2  Cal.  Unrep.  459;  6  Pac.  422);  and  the 
court  does  not  exceed  its  power  in  extend- 
ing the  time  to  thirty  days,  in  addition 
to  the  time  allowed  by  this  section,  under 
§  1054,  post.    Moffat  v.  Cook,  65  Cal.  236; 

3  Pac.  805.  Where  an  order  is  made  ex- 
tending the  time,  and  the  party  gives 
notice  before  the  statutory  time  expires, 
he  derives  no  benefit  from  the  order.  Cot- 
tle V.  Leitch,  43  Cal.  320.  An  order  ex- 
tending the  time  to  prepare  and  file  the 
motion,  extends  the  time  to  prepare  and 
file  the  notice  of  motion.  Cottle  v.  Leitch, 
43  Cal.  320.  The  time  named  in  an  order 
extending  the  time  to  give  notice  of  inten- 
tion commences  to  run  at  the  expiration 
of  the  ten  days  allowed  by  statute  for  the 
notice  (Emeric  v.  Alvarado,  64  Cal.  529; 
2  Pac.  418);  and  the  time  may  be  extended 
by  stipulation  of  counsel,  without  an  order 
of  court  ratifying  the  same  (Simpson  v. 
Budd,  91  Cal.  488;  27  Pac.  758);  but  a 
motion  to  modify  and  set  aside  the  find- 
ings will  not  extend  the  time,  nor  will 
an  order  staying  the  entry  of  judgment 
until  after  the  determination  of  such  mo- 
tion to  modify.  California  Improvement 
Co.  v.  Barotoau,  116  Cal.  136;  47  Pac.  1018. 

Objection  to  delay  in  serving  notice. 
The    objection    that    the    notice    was    not 


served  in  time  must  be  taken  in  the  lower 
court,  or  it  will  be  deemed  to  have  been 
waived,  and  the  time  extended  by  consent 
of  parties:  such  objection  cannot  be  taken 
for  the  first  time  on  appeal  (Brichman  v. 
Ross,  67  Cal.  601;  8  Pac.  316;  and  see 
Hobbs  V.  Duflf,  43  Cal.  485;  Hodgdon  v 
GriflBn,  56  Cal.  610;  Gray  v.  Xunan,  63 
Cal.  220;  Patrick  v.  Morse,  64  Cal.  462 
2  Pac.  49;  Schieffery  v.  Tapia,  68  Cal.  184 
8  Pac.  878;  Girdner  v.  Beswick,  69  Cal 
112;  10  Pac.  278;  Simpson  v.  Budd,  91  Cal 
488;  27  Pac.  758;  Mendocino  County  v 
Peters,  2  Cal.  App.  24;  S2  Pac.  1122);  and 
such  objection  should  be  o\'erruled,  where 
the  facts  alleged  do  not  appear  in  the  rec- 
ord, and  the  statement  was  settled  by  the 
judge  (Nippert  v.  Warneke,  128  Cal.  501; 
61  Pac.  96,  270);  and  it  is  not  available, 
in  the  absence  of  a  proper  showing  that 
the  notice  was  not  served  in  time.  Hook 
v.  Hall,  68  Cal.  22;  8  Pac.  596. 

Waiver  of  notice.  Notice  of  intention 
to  move  for  a  new  trial  may  be  waived. 
Gibson  v.  Berryman,  14  Cal.  App.  330;  111 
Pac.  926. 

Effect  of  service  of  notice.  In  a  pro- 
ceeding for  a  new  trial,  the  parties  are  de- 
termined by  the  notice  of  motion;  and 
jurisdiction  of  the  parties,  other  than  the 
party  moving,  is  obtained  by  service  upon 
them  of  such  notice.  Bell  v.  San  Francisco 
Sav.  Union,  153  Cal.  64;  94  Pac.  225. 

Presumption  as  to  notice.  Where  the 
notice  is  not  inserted  in  the  record,  it  will 
be  presumed  that  notice  was  properly 
given;  but  where  it  is  inserted,  and  there 
are  defects  therein,  it  devolves  upon  the 
moving  jiarty  to  show  that  the  defects 
were  overcome  or  were  waived.  Reclama- 
tion District  v.  Thisby,  131  Cal.  572;  63 
Pac.  918;  and  see  Patrick  v.  Morse,  64  Cal. 
462;  2  Pac.  49.  A  recital  in  the  bill  cf 
exceptions,  that  the  notice  was  seasonably 
served  and  filed,  will  prevail  over  the 
notice  of  intention  in  the  record,  stating 
that  it  was  filed  one  day  too  late.  Men- 
docino County  V.  Peters,  2  Cal.  App.  24; 
82  Pac.  1122;  Nye  v.  Marvsville  etc.  Street 
Ey.  Co.,  97  Cal.  461;  32  "Pac.  530;  Down- 
ing v.  Le  Du,  82  Cal.  471;  23  Pac.  202, 
Monterev  County  v.  Gushing,  83  Cal.  507; 
23  Pac.  700. 

Filing  the  notice.  The  filing  and  ser- 
vice of  the  notice  of  intention  to  move  for 
a  new  trial  is  the  initiation  of  a  proceed- 
ing for  a  new  trial.  Bell  v.  San  Francisco 
Sav.  Union,  153  Cal.  64;  94  Pac.  225. 
Failure  to  file  the  notice  of  intention 
within  ten  days  after  notice  of  the  de- 
cision, is  fatal  to  the  motion,  although 
timely  service  is  made  on  the  adverse 
party  (Sutton  v.  Symons,  100  Cal.  576;  35 
Pac.  158);  and  failure  to  file  the  notice 
within  ten  days  after  the  verdict  renders 
such  notice  ineffective  (Hook  v.  Hall, 
2    Cal.    Unrep.   459;    6    Pac.   422;    and   see 


741 


AFFIDAVITS — BILL   OF    EXCEPTION'S — STATEMENT. 


§659 


Coveny  v.  Ilalp.  40  Cal.  552;  Brady  v. 
FeisiJ,  54  Ca).  180;  Clark  v.  Crane,  57  Cal. 
C29;  Jue  Fook  fcjam  v.  Lord,  S:i  Cal.  159;  23 
Pac.  225);  and  renders  the  refusal  to  set- 
tle the  statement  j)roi>er  (Clark  v.  Crane, 
57  Cal.  629;  Jue  Fook  Sam  v.  Lord,  83 
Cal.  159;  '2:i  Pac.  225);  and  prevents  the 
appellant  from  impeaching  the  findings, 
Brady  v.  Feisil,  54  Cal.  ISU.  Leaving  the 
notice  of  intention  with  the  clerk  on  the 
last  day  allowed  by  law,  without  paying 
the  fees  therefor,  does  not  constitute  a 
legal  filing;  and  a  filing  made  three  days 
thereafter,  as  of  the  day  of  receipt,  on 
payment  of  the  fees,  is  too  late.  Davis  v. 
Hiirgren,  125  Cal.  48;  57  Pac.  684.  A  re- 
cital in  the  statement  on  the  motion.,  that 
the  plaintiff  reserved  the  right  to  object 
to  the  motion,  on  the  ground  that  the 
notice  of  intention  was  not  filed  with  the 
clerk  within  the  statutory  time,  cannot  be 
treated  as  in  the  nature  of  bill  of  excep- 
tions.   Hook  V.  Hall,  68  Cal.  22;  S  Pac.  596. 

Affidavits,  time  of  filing.  Affidavits  on 
which  the  motion  for  a  new  trial  was 
based,  showing  the  disqualification  of  the 
judge,  cannot  be  considered,  when  not  filed 
within  ten  days  after  the  notice  of  inten- 
tion. Estate  of  Kasson,  141  Cal.  33;  74 
Pac.  436.  The  time  for  filing  such  affi- 
davits may  be  extended  to  more  than 
thirty  days  beyond  the  statutory  time, 
under  this  section.  Oberlander  v.  Fixen, 
129  Cal.  690;  62  Pac.  254. 

Affidavits  must  be  identified.  The  affi- 
davits used  on  the  hearing  of  the  motion 
for  a  new  trial  must  be  identified.  John- 
son V.  Muir,  43  Cal.  542. 

Contents  of  bill  of  exceptions.  A  speci- 
fication of  particular  errors  relied  upon, 
though  required  in  the  statement,  is  not 
required  in  the  bill  of  exceptions.  Martin 
V.  ISouthern  Pacific  Co.,  150  Cal.  124;  88 
Pac.  701. 

Objections  to  bill  of  exceptions.  An  ob- 
jection to  a  bill  of  cxceiitions,  on  motion 
for  a  new  trial,  in  which  no  facts  are 
stated  or  presented  in  support  of  such  ob- 
jection, cannot  be  considered.  Anderson  v. 
Anderson,  4  Cal.  App.  269;  87  Pac.  558. 

Time  for  serving  bill  of  exceptions.  The 
time  for  service  of  a  proj)oscd  bill  of  ex- 
ceptions expires  at  the  termination  of  the 
stipulation  extending  such  time,  ami  is  not 
extended  by  the  pendency  of  another  mo- 
tion. Hole  V.  Takekawa,  165  Cal.  372;  132 
Pac.  445. 

Waiver  of  delay  in  presenting  bill  of 
exceptions.  An  objection  tliat  a  Idll  of 
exceptions  on  motion  for  a  new  trial  was 
cot  presented  in  time  may  be  waived. 
Bollinger  v.  Bollinger,  153  Cal.  190;  94 
Pac.  770. 

Object  of  bill  of  exceptions  or  state- 
ment. The  offi'-e  of  the  statement  on  mo- 
tion for  a  new  trial  is  to  bring  into  the 
record    certain    matters    which    constitute 


the  basis  of  the  motion,  and  •which  the 
party  desires  to  have  reviewed  on  ajijieal 
from  the  order  granting  or  refusing  a  new 
trial.  Harper  v.  Minor,  27  Cal.  107.  The 
object  of  the  statement  or  bill  of  excep- 
tions is  to  make  that  of  record  which  be- 
fore was  not  recortled,  but  rested  only  in 
the  recollection  of  the  court  or  counsel, 
or  in  the  minutes  of  the  clerk  (Williams 
V.  Southern  Pacific  R.  H.  Co.,  2  Cal.  I'nrep. 
613;  9  Pac.  152;  Johnson  v.  Soj.ulbeda,  5 
Cal.  149);  and  to  bring  into  the  record 
those  matters  which  have  arisen  in  the 
progress  of  the  trial,  and  matters  which 
constitute  the  basis  of  the  motion  or 
grounds  for  a  new  trial,  out  of  which 
arise  whatever  questions  the  aj'i>ellant  de- 
sires to  have  reviewed  on  appeal  from  the 
order  granting  or  refusing  a  new  trial. 
Graham  v.  .Stewart.  6S  Cal.  374;  0  Pac.  555. 

Contents  of  statement.  The  .statement 
on  motion  for  a  new  trial  should  contain  so 
much  of  the  evidence,  rulings  of  the  court, 
instructions,  etc.,  as  may  be  nece^:sary  to 
explain  the  points  relied  on.  Vjut  no  more. 
Hutton  V.  Reed,  25  Cal.  47S;  Harper  v. 
Minor,  27  Cal.  107;  McMinn  v.  Whelan, 
27  Cal.  300;  Hidden  v.  Jordan,  28  Cal.  302. 
Neither  the  notice  of  motion  for  a  new 
trial,  nor  the  affidavits  filed  in  support 
thereof,  have  properly  any  place  in  the 
statement.  Ferrer  v.  Home  Mutual  Ins. 
Co.,  47  Cal.  416.  On  application  for  a  new 
trial,  and  on  review,  a  statement  which 
does  not  specify  the  particular  errors  re- 
lied on,  or  the  particulars  in  which  the 
evidence  is  alleged  to  be  insufficient, 
should  be  disregarded  (Burnett  v.  Pacheco, 
27  Cal.  408;  Vilhac  v.  Biven,  28  Cal.  410; 
Reamer  v.  Nesmith,  34  Cal.  624;  Beans  v. 
Emanuelli,  36  Cal.  117;  Green  v.  Killey, 
38  Cal.  201;  Spanagel  v.  Dellinger,  38  Cal. 
278;  Brumagim  v.  Bradshaw,  39  Cal.  24; 
Mack  V.  Wetzlar,  39  Cal.  247;  Kusel  v. 
Sharkey,  46  Cal.  3;  Coleman  v.  Gilmore, 
49  Cal.'  340;  Ferrer  v.  Home  Mutual  Ins. 
Co.,  47  Cal.  416;  Leonard  v.  Shaw,  114  Cal. 
69;  45  Pac.  1012);  and  the  failure  to  insert 
in  the  statement  the  particular  points  on 
which  the  piarty  will  rely,  is  not  cured  by 
inserting  such  points  in  the  notice  of  mo- 
tion. Ferrer  v.  Home  Mutual  Ins.  Co.,  47 
Cal.  416. 

Amendments  should  be  incorporated. 
Ameuilmcnts  to  the  statements  should  be 
incorjiorated  in  the  engrossed  statement, 
and  not  merely  attached  thereto  (Marlow 
V.  Marsh,  9  Ca'l.  259;  Skillman  v.  Riley.  10 
Cal.  300;  Baldwin  v.  Ferre,  23  Cal.  41^; 
Kimball  v.  Semple,  31  Cal.  657);  but  fail- 
ure to  re-engross  the  statement,  and  place 
the  allowed  amendments  therein,  i£  L'ot 
error,  where  they  were  treated  by  the 
court  and  the  parties  as  part  of  the  state- 
ment. Swett  V.  Gray,  141  Cal.  63;  74  Pac 
439. 


§659 


NEW   TRIALS. 


742 


Amendments    as    waiver    of    objections. 

Proposing  amendments  to  a  statement  is 
a  waiver  of  a  failure  to  serve  a  notice  of 
the  motion,  unless  the  party  proposing  the 
amendments  makes  the  objection,  or  re- 
serves his  right  to  make  it  when  he  pro- 
poses his  amendments;  but  no  particular 
form  of  reserving  the  objection  is  required. 
Brundage  v.  Adams,  41  Cal.  619.  A  de- 
fendant in  a  motion  for  a  new  trial  may 
file  amendments  to  the  statement,  without 
waiving  his  right  to  object  that  the  notice 
or  statement  was  not  filed  or  served  in 
time,  by  a  preface  that  he  does  so  with- 
out prejudice  to  his  right  to  object,  at  the 
hearing,  to  the  notice  or  statement  on 
these  grounds.  Quivey  v.  Gambert,  32  Cal. 
304. 

Waiver  of  right  to  propose  amendments. 
The  right  to  propose  amendments  to  the 
statement  is  waived  by  an  agreement  that 
the  statement  was  correct,  and  authorizing 
the  defendant  to  present  it  to  the  judge 
for  settlement  without  notice.  Perry  v. 
Noonan  Loan  Co.,  1  Cal.  App.  609;  82  Pac. 
623.  Failure  to  serve  the  plaintiff  with 
notice  of  motion  to  amend  the  statement 
is  not  prejudicial  to  him,  where  the  pro- 
posed amendments  were  served,  and  he 
was  present  at  the  hearing,  and  offered 
no  amendments,  and  did  not  object.  Swett 
V.  Gray,  141  Cal.  63;  74  Pac.  439. 

Adoption  of  amendments.  The  presump- 
tion is,  that  the  amendments  were  adopted, 
where  the  moving  party  does  not  indicate 
to  the  contrary  by  serving  notice  that  the 
statement  and  amendments  would  be  pre- 
sented to  the  judge  for  settlement  as  pre- 
scribed by  this  section.  Pendergrass  v. 
Cross,  73  Cal.  47.5;  1.5  Pac.  G3.  Failure  to 
give  any  notice  in  reference  to  the  adop- 
tion or  rejection  of  the  proposed  amend- 
ments is  an  admission  that  the.y  were  to  be 
allowed  (Black  v.  Hilliker,  130  Cal.  190; 
62  Pac.  481);  but  failure  to  notify  the  op- 
posing party  of  refusal  to  adopt  the  amend- 
ments does  not  amount  to  their  adoption, 
where  the  moving  party  has  delivered  the 
statement  and  amendments  to  the  clerk  or 
judge.  Alellor  v.  Crouch,  76  Cal.  594;  18 
Pac.  68.5. 

Extension  of  time  to  preserve  and  serve 
statementi  An  extension  of  time  for  thirty 
days,  in  which  to  prepare  and  serve  a  pro- 
posed statement,  is  authorized;  and  an 
order  extending  the  time  within  which  to 
"file,"  as  well  as  to  prepare  and  serve,  the 
projiosed  statement,  cannot  mislead  the 
opi)Osite  part}',  where  the  notice  of  inten- 
tion has  been  served,  and  the  stipulation 
extending  the  time  refers  to  the  statement. 
Reclamation  District  v.  Hamilton,  112  Cal. 
603;  44  Pac.  1074.  An  extension  of  time 
in  which  to  prepare  and  serve  the  state- 
ment, though  within  the  limit  of  thirty 
days,  is  void,  if  the  time  previously  al- 
lowed had  fully  elapsed  while  the  mover 


was  in  default.  Freose  v.  Freese,  134  Cal. 
48;  66  Pac.  43.  Where  the  time  in  which 
to  prepare  and  serve  the  statement  was 
extended  for  thirty  days  by  the  judge, 
his  power  is  exhausted:  the  fact  that  the 
time  is  further  extended  by  consent  of  the 
adverse  party  does  not  confer  on  the 
judge  anv  additional  authority  (Bunnel  v. 
Stockton^  83  Cal.  319;  23  Pac.  301);  but 
a  stipulation  of  the  parties,  extending  the 
time  for  less  than  thirty  days,  does  not 
affect  the  power  of  the  court  to  extend  the 
time  for  thirty  days  from  the  expiration 
of  the  stipulated  time.  Reclamation  Dis- 
trict V.  Hamilton,  112  Cal.  603;  44  Pac. 
1074.  Where  the  order  extending  the  time 
in  which  to  serve  the  notice  of  intention 
is  void,  the  order  extending  the  time  to 
prepare  and  file  the  statement  is  also  void. 
Clark  V.  Crane,  57  Cal.  629.  The  order 
extending  the  time  to  prepare  the  state- 
ment carries  with  it  the  same  extension  of 
time  to  serve  the  statement.  Bryant  v. 
Sternfeld,  89  Cal.  611;  26  Pac.  1091;  Cur- 
tis V.  Superior  Court,  70  Cal.  390;  11  Pac. 
652;  Burton  v.  Todd,  68  Cal.  485;  9  Pac. 
663.  The  judge  who  tried  the  case  has 
the  power  to  extend  the  time  to  prepare 
the  statement,  although  he  is  sitting  in  a 
county  other  than  that  in  which  the  case 
was  tried.  Matthews  v.  Superior  Court,  68 
Cal.  638;  10  Pac.  128. 

Excuse  for  delay  in  preparing  and  serv- 
ing statement.  Ignorance  of  the  time 
within  which  a  bill  of  exceptions  or  state- 
ment must  be  prepared  and  served  cannot 
be  held  to  be  the  result  of  mistake,  sur- 
prise, or  inadvertence,  so  as  to  justify 
relief  therefrom.  Ingrim  v.  Epperson,  137 
Cal.  370;  70  Pac.  165. 

Result  of  delay  in  serving  statement. 
A  statement  on  motion,  served  six  days 
after  the  expiration  of  the  time  allowed 
by  law  and  by  all  extensions  given,  will 
not  be  considered  on  appeal.  Buckley  v. 
Althorf,  86  Cal.  643;  25  Pac.  134. 

Service  of  statement.  The  service  of 
the  proposed  statement  is  not  invalid  or 
void  because  made  on  a  Sunday  or  on 
a  legal  holidav.  Reclamation  District  v. 
Hamilton,  112  Cal.  603;  44  Pac.  1074. 

Extension  of  time  for  presentation  of 
statement  and  for  notice  thereof.  Under 
§  1054,  post,  the  court  has  power  to  extend 
the  time  withiu  which  the  proposed  state- 
ment and  amendments  shall  be  presented 
for  settlement,  anil  also  to  extend  the  time 
for  giving  actual  notice  of  the  presenta- 
tion, provided  always  that  the  adverse 
party  has  five  days'  notice  of  the  presenta- 
tion. Douglas  V.  Southern  Pacific  Co.,  151 
Cal.  242;  90  Pac.  538. 

Notice  of  settlement.  The  third  subdi- 
vision of  this  section  fixes  a  time  when 
the  statement  shall  be  jiresented,  and  pro- 
vides different  methods  whereby  the  ad- 
verse party  may  have  notice  of  the  fact; 


743 


NOTICE    OF    SETTLEMENT — DELAY    IN    TREPENTING    STATEMENT, 


§650 


tlius,  the  statomeut  must,  unless  tho  time 
is  extended,  lie  jiresented  within  ten  days, 
but  the  method  of  its  jiresent.ition  is  oj)- 
tional  with  the  movinjf  party,  who  may 
present  it  on  five  days'  notice  to  his  ad- 
versary, or  may  deliver  it  to  the  clerk  for 
the  judge.  Douglas  v.  Southern  Pacific  Co., 
151  Cal.  242;  90  Pac.  538.  When  the 
statement  with  the  proposed  amemlmenta 
is  delivered  to  the  clerk  for  the  judge,  no 
previous  notice  of  settlement  is  required 
to  be  given  bv  the  moving  partv.  Mellor 
V,  Crouch,  76'Cal.  594;  18  Pac.  685.  One 
purpose  of  the  statute  is  to  place  a  limi- 
tation on  the  time  for  presenting  the  pro- 
posed statement  and  amendments,  and 
another  i)urpose  is  to  provide  an  optional 
mode  of  presentation;  but  the  main  pur- 
pose is  to  give  notice  of  the  presentation 
of  the  statement.  Douglas  v.  Southern 
Pacific  Co.,  151  Cal.  242;  90  Pac.  538. 
Where  the  record  fails  to  show  that  the 
proposed  amendments  were  not  all  adopted, 
an  objection  that  no  notice  of  the  time 
and  place  of  settlement  was  given  to  the 
parties  making  the  proposed  amendments 
is  without  merit.  Standard  Quicksilver 
Co.  V.  Habishaw,  132  Cal.  115;  64  Pac.  113. 
The  provision  requiring  five  days'  notice 
to  be  given  to  the  adverse  party,  of  the 
hearing  of  the  settlement  of  the  bill  of  ex- 
ceptions, where  the  amendments  have  been 
served  but  not  adopted,  and  the  statement 
and  amendments  have  been  delivered  to 
the  judge,  requires  such  notice  to  be  given 
bv  the  party,  and  not  bv  the  clerk.  Mellor 
V.  Crouch,  76  Cal.  594;"  18  Pac.  685.  The 
objection  that  the  moving  party  failed  to 
serve  notice  of  the  presentation  of  the  pro- 
posed statement  and  amendments  for 
settlement,  is  waived  by  a  subsequent 
stipulation,  that  the  statement  might  be 
settled  by  the  judge  who  tried  the  cause,  at 
his  convenience,  and  that,  after  settlement, 
the  motion  might  be  heard  and  determined 
at  the  residence  of  the  judge  in  another 
county.  Cooper  v.  Burch,  140  Cal.  548;  74 
Pac.  37. 

Objection  to  delay  in  presentation.  The 
objection  that  the  proposed  statement  was 
not  presented  in  time  must  be  urged  when 
the  statement  is  presented  for  settlement, 
arid  if  the  objection  is  overruled,  the  party 
must  have  his  objection,  and  the  matter  in 
support  of  it,  incorporated  in  the  state- 
ment, so  as  to  avail  himself  of  it  as  a  rea- 
son for  denial  of  a  motion  for  a  new  trial, 
or  in  order  to  present  objections  on  appeal 
from  an  order  granting  or  refusing  the 
motion;  but  this  applies  only  to  objections 
urged  at  the  time  the  proposed  statement 
comes  up  for  settlement,  and  has  no  ap- 
plication to  objections  or  motions  made 
subsequently  to  the  order  settling  tho 
statement,  and  when  the  statement  as  set- 
tled is  presented  for  certification;  but  such 
matter  must  be  supported  by  a  bill  of  ex- 


(•ejitions.  Ryder  v.  Rio  Land  etc.  Co.,  147 
Cal.  462;  82  Pac.  62.  Where  no  showing 
is  made  that  the  amendments  were  ever 
served  on  the  jdaintiff's  attorney,  the  ob- 
jection that  the  statement  and  amend- 
ments were  not  presented  for  settlement 
within  ten  days  after  the  service  of  the 
amendments  on  the  plaintiff's  attorney, 
and  upon  five  days'  notice,  will  not  be 
considered.  Abbott  v.  Jack,  136  Cal.  510; 
69  Pac.  257.  Where  the  statement  is  not 
filed  or  presented  in  time,  an  objection 
interposed  to  the  settlement  on  that 
ground  is  not  available  after  settlement, 
when  the  motion  for  a  new  trial  comes 
on  for  hearing,  if  the  court,  at  the  time 
of  settling  the  statement,  granted  relief 
for  the  delay  under  §  473,  ante.  Grubb  v. 
Chase,  158  Cal.  352;  111  Pac.  90.  Where 
the  respondent  stipulates  "that  the  fore- 
going is  a  true  and  correct  statement  and 
bill  of  exceptions,"  he  will  not  be  per- 
mitted, for  the  first  time,  on  appeal,  to 
object  that  the  bill  of  exceptions  was  not 
presented,  signed,  or  settled  in  time.  Es- 
tate of  Dougherty,  139  Cal.  14 ;  72  Pac.  357. 

Result  of  delay  in  presenting  statement. 
Failure  of  the  plaintiff  to  jiresent  the 
statement  to  the  judge  within  ten  days 
after  the  receipt  of  the  proposed  amend- 
ments does  not  deprive  the  judge  of  the 
power  to  settle  the  statement  as  amended, 
where  no  notice  was  given  that  the  amend- 
ments were  either  adopted  or  rejected: 
this  procedure  is  authorized  by  the  third 
subdivision  of  this  section,  which  fixes  no 
time  for  the  statement  to  be  presented, 
where  the  amendments  are  adopted;  and 
the  failure  to  give  notice  of  the  rejection 
of  the  amendments  is,  in  itself,  an  admis- 
sion of  their  adoption  (Black  v.  Hilliker, 
130  Cal.  190;  62  Pac.  481);  but  where  the 
jiroposed  amendments  have  been  rejected, 
and  the  statement,  with  the  amendments, 
is  not  presented  by  the  moving  party 
within  ten  days  after  such  amendments 
were  served,  the  court  is  not  authorized 
to  consider  the  statement,  nor  can  it  be 
considered  on  appeal.  Henry  v.  Merguire, 
106  Cal.  142;  39  Pac.  599.  Failure  of  the 
moving  party  to  present  the  statement  and 
amendments  for  settlement  for  a  period 
of  ten  or  twelve  years  after  the  amend- 
ments have  been  served,  without  any  satis- 
factory explanation,  is  gross  and  inex- 
cusable neglect  (Lee  Doon  v.  Tesh,  131 
Cal.  406;  63  Pac.  704);  and  an  unexplained 
delay  of  seven  months  in  presenting  the 
statement  and  amendments  for  settlement, 
demands  that  the  statement  be  disregariled 
on  appeal.  Connor  v.  Southern  California 
Motor  Road  Co.,  101  Cal.  429;  35  Pac.  990; 
Willis  V.  Rhen  Kong,  70  Cal.  548;  11  Pac. 
780.  Where  the  proposed  statement  is  not 
presented  in  time,  and  no  excuse  appears 
therefor  in  the  record,  such  delay  is  fatal 
to  a  consideration  of  the  statement.   Henry 


§659 


NEW    TRIALS. 


744 


V.  Mergiiire,  106  Cal.  142;  39  Pac.  599. 
Failure  to  incorporate  and  certify  in  the 
statement  a  valid  excuse  for  delay  in 
its  presentation  is  inexcusable  negligence 
(Estate  of  Kruger,  130  Cal.  621;  63  Pac. 
31;  Higgins  v.  Mahoney,  50  Cal.  444;  Tre- 
gauibo  V,  Comanche  etc.  Mining  Co.,  57 
Cal.  501;  Connor  v.  Southern  California 
Motor  Eoad  Co.,  101  Cal.  429 ;  35  Pac.  990) ; 
and  the  court  has  jurisdiction  to  dismiss 
the  proceedings  for  inexcusable  neglect  in 
failing  to  present  the  statement  for  settle- 
ment. Kokole  V.  Superior  Court,  17  Cal. 
App.  454;  120  Pac.  67.  Where  the  hear- 
ing of  the  settlement  of  the  statement  is 
postponed  from  time  to  time,  and  the 
statement  is  lost,  and  no  explanation  is 
given  of  the  delay  of  the  moving  party  to 
obtain  the  settlement  of  a  substituted 
statement,  the  dismissal  of  the  motion  is 
justified.  Moore  v.  Kendall,  121  Cal.  145; 
53  Pac.  647.  Where  the  notice  of  inten- 
tion states  that  the  motion  will  be  made 
upon  a  bill  of  exceptions,  but  no  proper 
bill  or  statement  is  presented  upon  the 
hearing  of  the  motion,  there  can  be  no  re- 
view of  the  action  of  the  trial  court,  either 
in  that  court  or  on  appeal.  Pereira  v.  City 
Savings  Bank,  128  Cal.  45;  60  Pac.  524. 

Time  for  presentation  when  amendments 
adopted.  When  the  amendments  are 
adopted  by  the  moving  party,  the  time 
within  which  the  statement  as  amended 
shall  be  presented  to  the  judge  or  delivered 
to  the  clerk  is  not  limited  by  this  section, 
and  it  may  be  presented  within  a  reason- 
able time.  Pendergrass  v.  Cross,  73  Cal. 
475;  15  Pac.  63. 

Statement  or  bill  of  exceptions  must 
contain  what  evidence.  A  bill  of  excep- 
tions should  contain  only  so  much  of  the 
evidence,  or  a  reference  thereto,  as  may 
be  necessary  to  explain  the  grounds  speci- 
fically set  forth  as  causes  for  new  trial. 
McMinn  v.  Whelan,  27  Cal.  300.  The 
statement  need  not  contain  all  the  evi- 
dence, where  the  question  is  solely  as  to 
the  suflSciency  of  conflicting  evidence  to 
sustain  a  particular  finding:  it  is  sufficient 
if  there  is  enough  evidence,  on  each  side 
of  the  question,  to  show  a  substantial  con- 
flict, since  the  decision  of  the  court  will 
not  be  interfered  with;  and  where  the 
proposed  statement  or  bill  of  exceptions 
fails  to  present  sufficient  evidence,  it  is 
the  duty  of  the  opposing  party  to  propose 
amendments,  and  not  throw  that  labor  on 
the  trial  judge.  Vatcher  v.  Wilbur,  144 
Cal.  536;  78  Pac.  14.  Where  the  statement 
does  not  purport  to  contain  all  the  evi- 
dence, it  will  not  be  presumed  that  the 
evidence  admitted  was  adverse  to  the  find- 
ing bv  the  court.  Plarris  v.  Duarte,  141 
Cal.  497;  70  Pac.  298;  75  Pac.  58.  The 
requirement  that  the  moving  party  shall 
prepare  and  serve  a  proper  statement  or 
bill   of    exceptions,    so    as    to    sustain    his 


contention  of  the  insufficiency  of  the  evi- 
dence, does  not  mean  that  the  statement 
or  bill  of  exceptions  shall  embody  all  the 
notes  of  the  reporter.  Vatcher  v.  Wilbur, 
144  Cal.  536;  78  Pac.  14.  The  practice  of 
embodying  in  the  statement  or  bill  of  ex- 
ceptions the  reporter's  notes,  in  bulk,  is 
not  justified  by  the  law  or  good  practice: 
the  code  requires  only  so  much  of  the  evi- 
dence or  other  matter  as  is  necessary  to 
explain  the  objections  or  points  sought  to 
be  presented.  Santa  Ana  v.  Ballard,  126 
Cal.  677;  59  Pac.  133.  Where  the  state- 
ment contains  the  reporter's  notes,  in  bulk, 
the  court  should  permit  the  statement  to 
be  amended  so  as  to  set  out  its  substance, 
and  cause  redundant  and  useless  matter  to 
be  stricken  out;  mandamus  lies  to  compel 
the  judge  to  do  so,  should  he  refuse  to 
allow  the  amendment.  Santa  Ana  v.  Bal- 
lard, 126  Cal.  677;  59  Pac.  133;  Kruse  v. 
Chester,  66  Cal.  353;  5  Pac.  613;  Leach  v. 
Pierce,  93  Cal.  614;  29  Pac.  235;  Tibbets 
V.  Riverside  Banking  Co.,  97  Cal.  258;  32 
Pac.  174;  Winters  v.  Buck,  121  Cal.  279;  53 
Pac.  799.  Where  the  proposed  statement 
contains  questions  and  answers  claimed  to 
have  been  erroneously  excluded,  it  is  the 
right  of  the  opposite  party  to  propose 
amendments  showing  that  the  exclusion 
of  the  testimony  sought  to  be  stricken  out 
could  not  change  the  result;  hence,  the 
cost  of  printing  the  transcript  will  not  be 
taxed  against  him,  though  such  amendment 
requires  the  insertion  of  the  greater  por- 
tion of  the  evidence.  Duffy  v.  Duffy,  104 
Cal.  602;  38  Pac.  443.  Where  the  total 
amount  involved  in  the  case  is  only  some 
six  hundred  dollars,  and  a  transcript  of 
the  reporter's  notes  would  cost  almost  a 
quarter  of  the  amount  involved,  an  order 
requiring  the  moving  party  to  procure  such 
transcript  as  a  condition  of  settlement 
of  the  proposed  statement,  to  which  no 
amendments  are  proposed,  is  unreasonable. 
Vatcher  r.  Wilbur,  144  Cal.  536;  78  Pac. 
14.  The  engrossed  statement  will  be  dis- 
regarded on  appeal,  where  the  certificate 
thereto  states  that  it  is  but  a  skeleton, 
and  does  not  contain  all  the  evidence 
(Brind  v,  Gregory,  122  Cal.  480;  55  Pac. 
250);  but  where  an  exhibit  is  omitted 
from  the  statement,  and  no  objection  is 
made,  and  the  attorneys  for  the  respond- 
ent indorse  on  the  statement,  "The  fore- 
going statement  agreed  to  by  us,"  and  the 
same  is  thereupon  signed  by  the  judge, 
an  objection  that  such  exhibit  has  been 
omitted  is  waived,  and  presents  no  cause 
for  striking  out  the  statement,  or  any  part 
of  it.  Sharon  v.  Sharon,  79  Cal.  633;  22 
Pac.  26,  131. 

Evidence  set  out  in  statement  how. 
The  evidence,  as  written  out  by  the  re- 
porter, is  not  the  statement  contemplated 
by  statute:  it  is  the  duty  of  attorneys  to 
see  that  evidence  is  correctly  stated,  and 


745  EVroENCE   SET    OUT    IN    STATEMENT — SPECIFICATION    OF    ERROR.  §  659 


that  exceptions  are  correctly  noted.  Quinn 
V.  Wetherbee,  41  Cal.  247.  Where  ex- 
hibits, claimed  to  have  been  used  in  evi- 
dence, are  referred  to  by  number  in  the 
body  of  the  statement,  and  are  set  out  in 
the  appendix  thereto,  properly  numbered, 
and  preceded  by  a  proper  title,  they  are 
sufficiently  identified,  and  incorporated  in 
and  made  a  part  of  the  statement.  Sharon 
V.  Sharon,  79  Cal.  633;  22  Pac.  2G,  131. 
Eeference,  in  the  proposed  statement,  to 
a  document  or  record  by  means  of  the 
direction,  "Here  insert."  is  a  sufficient 
notification  to  the  opposite  party  that  such 
document  or  record  is  to  become  a  part  of 
the  statement;  but  such  reference  would 
not  be  sufficient  in  the  engrossed  state- 
ment (Keclamation  District  v.  Hamilton, 
112  Cal.  COS;  44  Pac.  1074);  and  deposi- 
tions on  file  may  be  made  part  of  the 
statement,  b}'-  calling  for  them  by  the 
direction,  "llere  insert,"  at  the  proper 
place;  and  when  the  transcript  is  made  up, 
they  should  be  copied  in  full  where  called 
for.  Sharon  v.  Sharon,  79  Cal,  633;  22  Pac. 
26,131. 

Stipulation  as  to  evidence  in  statement. 
"Where  it  is  stipulated  that  the  statement 
"does  not  contain  all  the  evidence,"  but 
that  "the  statement  is  correct,"  it  will  be 
inferred  that  only  so  much  of  the  evi- 
dence has  been  inserted  as  is  necessary  to 
explain  the  grounds  specified  in  the  notice. 
Cahill  V.  Baird,  7  Cal,  Unrcp.  61;  70  Pac. 
1061. 

Specification  of  errors.  Specification  of 
grounds  of  error  is  the  essence  of  the 
statement,  without  which  it  has  no  legal 
existence.  Hutton  v.  Reed,  25  Cal.  47S; 
Coleman  v.  Gilmore,  49  Cal.  340;  Thomp- 
son V.  Patterson,  54  Cal.  542;  Crowther  v. 
Eowlandson,  27  Cal.  376;  Burnett  v.  Pa- 
checo,  27  Cal.  408;  Partridge  v.  San  Fran- 
cisco, 27  Cal.  415;  Beans  v.  Emanuelli,  36 
Cal.  117;  Ferrer  v.  Home  Mutual  Ins.  Co., 
47  Cal.  416;  Hill  v.  Beatty,  61  Cal.  292; 
Alameda  Macadamizing  Co.  v.  Williams, 
70  Cal.  534;  12  Pac.  530.  A  statement 
that  contains  no  specifications  of  the  par- 
ticular errors  relied  upon  must  be  disre- 
garded. Johnston  v.  Blanchard,  16  Cal. 
App.  321;  116  Pac.  973.  A  general  speci- 
fication, that  "the  court  erred  in  giving 
each  and  every  instruction  requested  by 
plaintiff,"  while  not  to  be  commended, 
sufficiently  notifies  the  plaintiff  of  the 
errors  relied  on.  Light  v.  Stevens,  159  Cal. 
288;  113  Pac.  659.  Where  the  statement 
contains  no  specification  of  error,  the  mo- 
tion is  properly  denied  (Nye  v.  Marysville 
etc.  E.  E.  Co.,  97  Cal.  461;  32  Pac.  530); 
and  the  decision  is  conclusive  of  the  facts 
of  the  case.  Graham  v.  Stewart,  6S  Cal. 
374;  9  Pac.  555.  Errors  not  specified  in 
the  statement  will  not  be  considered  on 
appeal.  Budd  v.  Drais,  50  Cal.  120;  Thomp- 
Bon  V.  Patterson,  54  Cal.  542;   Heinlen  v. 


Hcilbron,  71  Cal.  557;  12  Pac.  673;  Hcrshey 
V.  Kuess,  75  Cal.  115;  16  Pac.  548;  Bohnert 
V.  Bohnert,  95  Cal.  444;  30  Pac.  590; 
Leonard  v.  Shaw,  114  Cal.  69;  45  Pac. 
1012;  Lambert  v.  Marcuse,  137  Cal.  44; 
69  Pac.  C20;  Ferrer  v.  Homo  Mutual  Ins. 
Co.,  47  Cal.  416;  Fleming  v.  Albeck,  67 
Cal.  227;  7  Pac.  659;  Pico  v.  Cohn,  67  Cal. 
258;  7  Pac.  680;  Sprigg  v.  Barber,  122 
Cal.  573;  55  Pac.  419;  Acklev  v.  Fishbeck, 
124  Cal.  409;  57  Pac.  207.  The  object  of 
the  provision  requiring  the  statement  to 
specify  the  errors  relied  on  is  to  enable 
the  adverse  party  to  proiuiro  his  amend- 
ments, without  the  necessity  of  going 
through  the  statement  proposed  by  the 
moving  party  to  ascertain  what  objections, 
rulings,  and  exceptions  are  incorporated 
therein;  and  unless  the  alleged  errors  are 
specifically  pointed  out,  they  are  waived 
by  the  moving  party.  Bohnert  v.  Bohnert, 
95  Cal.  444;  30  Pac.  590.  The  specifica- 
tion of  errors  is  essential  to  the  statement, 
to  call  attention  to  the  precise  ground 
relied  on,  and  not  to  fortify  the  alleged 
errors  by  a  statement  of  facts  in  its  sup- 
port; hence,  a  statement  by  the  moving 
party,  that  he  objected  to  the  testimony, 
and  excepted  to  the  decision  admitting  it 
in  evidence,  cannot  be  considered,  where 
the  statement  does  not  show  any  exception. 
Alameda  Macadamizing  Co.  v.  Williams,  70 
Cal.  534;  12  Pac.  530.  The  question  pre- 
sented on  a  motion  for  a  nonsuit  is  a  ques- 
tion of  law,  and,  in  the  statement  on 
motion  for  a  new  trial,  the  decision  of  the 
court  should  be  specified  as  an  error  of 
law;  but  the  specification  need  not  embo<ly 
the  evidence.  Donahue  v.  Gallavan,  43 
Cal.  573.  Where  no  errors  of  law  are 
specified  in  the  statement,  it  will  be  pre- 
sumed that  they  were  disregarded  on  the 
hearing  of  the  motion.  Pico  v.  Cohn,  67 
Cal.  258;  7  Pac.  680.  A  misleading  in- 
struction, not  specified  as  a  ground  of  the 
motion,  cannot  support  an  order  granting  a 
new  trial.  Laver  v.  Hotaling,  115  Cal.  613; 
47  Pac.  593.  An  objection,  that  the  ver- 
dict shows  prejudice,  is  untenable,  where 
no  assignment  of  error  on  that  ground  ap- 
pears in  the  motion  for  a  new  trial.  Kirk 
V.  Santa  Barbara  Ice  Co.,  157  Cal.  591;  108 
Pac.  509.  Failure  to  find  on  all  the  issues 
raised  by  the  pleadings  need  not  be  speci- 
fied in  the  statement  as  a  ground  of  the 
motion.  Millard  v.  Supreme  Council.  3  Cal. 
Unrep.  96;  21  Pac.  825.  A  specification 
of  errors  in  the  statement,  that  they  are 
pointed  out  and  designated  in  the  tran- 
script by  certain  numbered  exceptions,  and 
that  the  court  erred  in  each  of  its  rulings, 
is  insufficient  (Hall  v.  Susskind,  120  Cal. 
559;  53  Pac.  46);  and  the  incorporation 
of  an  instruction,  in  the  assignment  of 
errors,  coupled  with  the  statement  that  it 
was  given  against  the  objection  of  the 
appellant,  is  also  insufficient.    Braverman 


§659 


NEW    TRIALS. 


746 


V.  Fresno  Canal  etc.  Co.,  101  Cal.  644;  36 
Pae.  386.  Where  the  notice  of  motion 
specified  that  it  would  be  made  upon  a 
"statement  of  the  case,"  and  the  trial 
judge,  in  his  settlement,  designated  it  as 
a  "bill  of  exceptions,"  it  may  be  treated 
either  as  a  statement  or  a  bill  of  excep- 
tions: in  either  case,  it  is  sufficient,  where 
it  contains  a  proper  specification  of  errors. 
Northwestern  Redwood  Co.  v.  Dicken,  13 
Cal.  App.  6S9;  110  Pac.  591.  A  paper, 
appended  to  the  statement,  but  forming 
no  part  of  it,  designated  as  an  assignment 
of  errors,  but  not  authenticated  as  part  of 
the  record,  nor  included  in  the  stipulation 
certifying  to  the  contents  of  the  tran- 
script, and  no  showing  made  that  it  was 
considered  on  the  motion,  cannot  be  con- 
sidered on  appeal.  Ackley  v.  Fishbeck, 
124  Cal.  409;  57  Pac.  207.  Failure  to 
specify  in  the  statement  that  the  court 
did  not  find  on  an  issue  raised  by  the 
pleadings  prevents  its  consideration  on  ap- 
peal. Kaiser  v.  Dalto,  140  Cal.  167;  73 
Pac.  828;  Haight  v.  Tryon,  112  Cal.  4;  44 
Pac.  318.  The  objection  that  a  judgment 
is  in  favor  of  a  party  on  a  cause  of  action 
which  he  has  not  alleged,  will  be  consid- 
ered on  appeal,  where  the  facts  are  all  of 
record,  though  it  is  not  specified  in  the 
statement.  Heinlen  v.  Heilbron,  71  Cal. 
557;  12  Pac.  673;  Putman  v.  Lamphier,  36 
Cal.  151.  Eulings  on  the  admission  of  evi- 
dence, not  specified  as  error  in  the  state- 
ment, cannot  be  considered  on  appeal; 
but  no  specifications  of  errors  are  required 
when  the  motion  is  based  on  a  bill  of 
exceptions.  Smith  v.  Smith,  119  Cal.  183; 
48  Pac.  730;  51  Pac.  183.  The  ruling  on  a 
demurrer,  not  specified  or  referred  to  in 
the  statement,  will  not  be  considered  on 
appeal.  Heilbron  v.  Centerville  etc.  Ditch 
Co.,  76  Cal.  8;  17  Pac.  932.  The  specifica- 
tions should  conform  to  the  notice  of  in- 
tention to  move  for  a  new  trial;  and 
where  they  do  not,  the  opposite  party 
should  move  for  such  amendments  thereto 
as  will  remove  therefrom  all  matter  foreign 
to  the  grounds  stated  in  the  notice.  Pico 
V.  Cohn,  78  Cal.  384;  20  Pae.  706.  The 
specifications  may  be  amended  after  the 
time  has  expired  for  preparing  and  set- 
tling the  statement.  Alameda  Macadamiz- 
ing Co.  V.  Williams,  70  Cal.  534;  12  Pac. 
530;  Low  v.  McCallam,  64  Cal.  2;  27  Pac. 
787. 

Specifications  of  insufficiency  of  evi- 
dence. The  specification  of  the  insufii- 
ciency  of  the  evidence  is  not  required  to 
be  made  in  any  particular  form  of  words, 
but  it  should  distinguish  each  particular 
proposition  of  fact  excepted  to  from  all 
others  found  by  the  court  or  in  the  verdict 
of  the  jury.  Dawson  v.  Schloss,  93  Cal. 
194;  29  Pac.  31;  Smith  v.  Ellis,  103  Cal. 
294;   37   Pac.   400;   Molera  v,   Martin,   120 


Cal.  544;  52  Pac.  825;  Du  Brutz  v.  Jessup, 
54  Cal.  118;  Brenot  v.  Brenot,  102  Cal.  2D4; 
36  Pac.  672.  The  statement  is  not  a  plead- 
ing, nor  a  complaint  in  error,  where  all 
the  intendments  are  against  the  pleader: 
it  is  in  the  nature  of  a  notice,  to  be  re- 
garded with  liberality,  the  sufficiency  of 
which  is  to  be  tested  by  inquiring  whether 
the  opposing  party  is  injured  by  defects. 
American  Type  Founders  Co.  v.  Packer, 
130  Cal.  459;  62  Pac.  744.  The  specifica- 
tion of  insufficiency  need  not  be  inserted 
in  any  particular  place  in  the  statement, 
nor  under  any  particular  subheading. 
Stuart  V.  Lord,  138  Cal.  672;  72  Pac.  142. 
The  purpose  of  this  section  in  requiring 
the  particulars  of  the  insufficiency  to  be 
specified  in  the  statement,  is  to  direct  the 
attention  of  the  court  and  counsel  to  the 
particulars  relied  on  by  the  moving  party, 
so  that  the  evidence  bearing  on  the  speci- 
fications may  be  inserted  in  the  statement 
and  considered  by  the  court  (Eddelbuttel 
v.  Durrell,  55  Cal.  277;  Spotts  v.  Hanley, 
85  Cal.  155;  24  Pac.  738;  Cummings  v. 
Eoss,  90  Cal.  68;  27  Pac.  62;  Brenot  v. 
Brenot,  102  Cal.  294;  36  Pac.  672;  Molera 
V.  Martin,  120  Cal.  544;  25  Pac.  825; 
Standard  Quicksilver  Co.  v.  Habishaw,  132 
Cal.  115;  64  Pac.  113);  and  so  that  the  ad- 
verse party  may  intelligently  prepare  such 
amendments  as  will  support  the  decision, 
and  the  court  determine  whether  any  por- 
tion of  the  statement  is  useless  and  re- 
dundant (Molera  v.  Martin,  120  Cal.  544; 
52  Pac.  825) ;  and  to  direct  the  attention 
of  counsel  and  the  court  to  the  particular 
point  on  which  the  evidence  is  alleged  to 
be  insufficient  (Estate  of  Yoakam,  103  Cal. 
503;  37  Pac.  485;  McCullough  v.  Clark, 
41  Cal.  298;  Brenot  v.  Brenot,  102  Cal. 
294;  36  Pac.  672);  and  to  provide  a  state- 
ment restricted  to  such  evidence  as  is 
relevant  and  material  to  prove  or  dis^Drove 
the  specified  facts.  Dawson  v.  Schloss,  93 
Cal.  194;  29  Pac.  31.  It  is  clearly  pre- 
scribed in  this  section  that  the  moving 
party  shall  state  the  grounds  of  the  in- 
sufficiency upon  which  the  motion  should 
be  granted,  differently  from  and  at  greater 
length  than  that  required  in  the  notice  of 
intention  to  move  for  a  new  trial:  the  mere 
repetition,  in  the  statement,  of  the  grounds 
of  the  motion  designated  in  the  notice, 
without  specifying  the  particulars  wherein 
the  evidence  is  insufficient,  does  not  sat- 
isfy the  statute.  Molera  v.  Martin,  120 
Cal.  544;  52  Pac.  825.  The  specification 
need  not  be  more  specific  than  the  issues 
made  by  the  pleadings,  if  the  motion  is 
directed  against  a  general  verdict,  or  an 
omnibus  finding  that  all  or  certain  desig- 
nated allegations  of  the  complaint  or  an- 
swer are  true,  or  a  judgment  without 
findings.  Harris  v.  Duarte,  141  Cal.  497; 
70  Pac.  298;  75  Pac.  58.     Where  the  evi- 


747 


SPKCIFICATIUNS  OF  IKSUFFICIKNC Y   OF   EVIDENCE. 


§1359 


dcnoe  is  all  presented  in  the  transcript,  a 
specification  of  its  insufTiciency  to  sustain 
the  findings  is  sufficient,  where  there  is  a 
reasonably  successful  eff'ort  made  to  state 
the  particulars,  and  they  are  such  as  nii-iht 
be  sufficient  to  inform  the  opposing  coun- 
sel and  the  court  of  the  grounds.  Porter 
V.  Counts,  6  Cal.  App.  oijU;  92  Pac.  655. 
Where  the  specifications  fully  inform  coun- 
sel and  the  court  as  to  the  points  on  which 
the  plaintiff  relies  in  contending  that  the 
decision  is  contrary  to  the  evidence,  and 
all  the  evi<lence  is  contained  in  the  record, 
they  are  sufficient  (Gwin  v.  Calegaris,  139 
Cal.  384;  73  Pac.  851;  Estate  of  Motz,  130 
Cal.  558;  69  Pac.  295;  Standard  Quick- 
silver Co.  V.  Habishaw,  132  Cal.  115;  64 
Pac.  113;  Osborn  v.  Hopkins,  160  Cal. 
501;  117  Pac.  519);  and  specifications, 
full  enough  to  enable  the  court  to  under- 
stand the  question  presented,  are  sufficient 
(Newell  V.  Desmond,  63  Cal.  242);  as  are 
also  specifications  which  enable  the  op- 
posing counsel  to  determine  what  evidence 
should  be  put  in  the  statement,  and  the 
judge  to  strike  out  useless  and  redundant 
matter.  American  Type  Founders  Co.  v. 
Packer,  130  Cal.  459;  62  Pac.  744.  Where 
the  statement  fails  to  specify  any  par- 
ticular in  which  the  evidence  is  insuffi- 
cient, it  must  be  disregarded,  so  far  as 
the  notice  of  motion  specifies  the  insuffi- 
ciency of  the  evidence  as  one  of  its 
grounds  (Hill  v.  Beatty,  61  Cal.  292;  Ben- 
jamin v.  Stewart,  61  Cal.  605;  Bate  v. 
Miller,  63  Cal.  233;  Donohoe  v.  Mariposa 
etc.  Mining  Co.,  66  Cal.  317;  5  Pac.  495; 
Hartman  v.  Eogers,  69  Cal.  643;  11  Pac. 
581;  Heinlen  v.  Heilbron,  71  Cal.  557;  12 
Pac.   673;    Silva   v.   Holland,   74   Cal.   530; 

16  Pac.  385;  Lowrie  v.  Salz,  75  Cal.  349; 

17  Pac.  232;  Heilbron  v.  Kings  River  etc. 
Canal  Co.,  76  Cal.  11;  17  Pac.  933;  Millan 
V.  Hood,  3  Cal.  Unrep.  548;  30  Pac.  1107; 
Gregory  v.  Gregory,  102  Cal.  50;  36  Pac. 
364;  Green  v.  Green,  103  Cal.  108;  37  Pac. 
188;  Citizens'  Bank  v.  Jones,  121  Cal.  30; 
53  Pac.  354;  Thompson  v.  Los  Angeles, 
125  Cal.  270;  57  Pac.  1015;  Rauer  v.  Fay, 
128  Cal.  523;  61  Pac.  90;  O'Leary  v.  Castle, 
133  Cal.  508;  65  Pac.  950;  Liurette  v. 
Hiller,  139  Cal.  729;  73  Pac.  836;  Graybill 
V.  De  Young,  140  Cal.  323;  73  Pac.  1067; 
Ben  Lomond  Wine  Co.  v.  Sladky.  141  Cal. 
619;  75  Pac.  332;  Estate  of  Antoldi,  7  Cal. 
Unrep.  211;  81  Pac.  278);  and,  since  the 
decision  includes  the  facts  found,  the  find- 
ings must  be  taken  as  absolutely  true 
(Donohoe  v.  Mariposa  etc.  Mining  Co.,  66 
Cal.  317;  5  Pac.  495);  hence,  the  question 
whether  excessive  damages  appear  to  have 
been  given  under  the  influence  of  passion 
or  prejudice  cannot  be  considered,  it  being 
but  another  form  of  saying  that  the  evi- 
dence does  not  justifv  the  verdict.  Gray- 
bill  V.  De  Young.  140  Cal.  323;  73  Pac. 
1067.     A  specification  in  a  statement,  in  a 


case  tried  by  the  court,  where  findings  of 
fact  have  been  filed,  that  a  particular  find- 
ing, naming  it,  was  not  justified  by  the 
evidence,  is  sufficient  to  enable  the  court 
to  review  the  evidence  so  far  as  it  relates 
to  each  finding  thus  pointed  out.  Strang 
V.  Ryan,  46  Cal.  33;  Bell  v.  Staacke,  141 
Cal.  1S6;  74  Pac.  771.  .\  finding  as  to  the 
amount  of  damages,  whi(di  is  not  attacked 
in  the  specification  of  the  insufliciency  of 
the  evidence,  will  not  be  considered  on 
appeal  (Fitzhugh  v.  Mason,  2  Cal.  Aj»p. 
220;  83  Pac.  282);  nor,  where  the  state- 
ment fails  to  specify  the  jiarticulars  of 
the  insufficiency  of  the  evidence,  will  the 
decision  of  the  court  bo  considered  on 
appeal.  Preston  v.  Hearst,  54  Cal.  595; 
Phillips  v.  Lowery,  54  Cal.  584.  Where 
the  specification  of  the  insufficiency  of  the 
evidence  is  directed  to  a  portion  of  the 
findings,  that  a  certain  amount  was  due, 
and  not  that  the  principal  had  never  been 
paid,  except  a  certain  sum  on  account  of 
interest,  which  was  also  a  part  of  the  find- 
ing, no  contention  can  be  made  on  aj)peal 
that  there  is  no  evidence  in  sujjjiort  of  the 
finding  that  the  note  had  not  been  paid. 
First  Nat.  Bank  v.  Kelso,  5  Cal.  Unrep. 
40;  40  Pac.  427.  Where  the  statement 
contains  no  specifications  of  the  insufli- 
ciency of  the  evidence,  or  of  errors  of  law 
occurring  at  the  trial,  a  specification  that 
the  decision  is  against  law  will  be  limited 
to  errors  appearing  in  the  judgment  roll. 
Thompson  v.  Los  Angeles,  125  Cal.  270;  57 
Pac.  1015.  Where  there  are  no  findings  of 
fact,  and  no  motion  for  a  new  trial,  but 
the  appeal  is  from  an  order  denying  an 
application  for  distribution,  a  specification 
of  insufficiency  is  not  necessary.  Estate  of 
Fath,  132  Cal.  609;  64  Pac.  995.  The  state- 
ment that  "the  court  should  have  found" 
is  only  another  way  of  stating  what  "the 
evidence  shows,"  which  is  a  form  of  sjieci- 
fication  repeatedlv  held  to  be  insufficient 
(Taylor  v.  Bell,  128  Cal.  306;  60  Pac.  853): 
the  statement  that  "the  evidence  shows" 
is,  in  eff'ect,  only  a  statement  that,  upon 
all  the  evidence,  the  court  should  have 
come  to  a  dififerent  conclusion,  and  a  mere 
repetition  of  what  was  previously  stated 
in  the  notice  of  intention.  Taylor  v.  Bell, 
128  Cal.  306;  60  Pac.  853;  Adams  v.  Hel- 
bing,  107  Cal.  298;- 40  Pac.  422;  Haight  v. 
Tryon,  112  Cal.  4;  44  Pac.  318;  Love  v. 
Anchor  Raisin  etc.  Co.,  5  Cal.  Unrep.  425; 
45  Pac.  1044.  An  allegation  as  to  what 
the  evidence  shows  is  unnecessary,  and  out 
of  place,  in  the  si^ecifications  recpiired  by 
this  section.  Dawson  v.  Schloss,  93  Cal. 
194:  29  Pac.  31;  Adams  v.  Helbing,  l(i7 
Cal.  298;  40  Pac.  422.  A  specification, 
that  "the  evidence  is  insufficient  to  justify 
the  verdict,  in  this,  that  the  evidence 
shows  certain  specific  facts,"  is  suffitient 
(Estate  of  Yoakam,  103  Cal.  503;  37  Pac. 
485;    Harnett  v.  Central  Pacific  R.  R.  Co., 


§659 


NEW    TRIALS. 


748 


78  Cal.  31;  20  Pac.  134);  but  a  specifica- 
tion, not  directed  at  any  particular  one 
of  numerous  findings  of  fact,  but  at  all 
of  them,  and  at  the  verdict  adopted,  and 
at  the  finding  made  thereon,  and  at  the 
judgment,  is  insuflScient  (Cummings  v. 
Eoss,  90  Cal.  68;  27  Pac.  62);  as  is  also  a 
specification  that  the  court  erred  in  find- 
ing and  deciding  in  favor  of  the  defend- 
ant when  the  finding  and  decision  should 
have  been  in  favor  of  the  plaintiff,  and 
in  rendering  judgment  in  favor  of  the  de- 
fendant when  the  judgment  should  have 
been  in"  favor  of  the  plaintiff  (Lower 
Kings  Eiver  Eec.  District  v.  Phillips,  5 
Cal.  Unrep.  776;  39  Pac.  634);  and  also 
a  specification  that  "the  evidence  is  wholly 
insufficient  to  justify  or  sustain  the  ver- 
dict, and,  on  the  contrary,  shows  that  said 
verdict  should  have  been  in  favor  of  the 
petitioners"  (In  re  Strode,  12S  Cal.  658; 
61  Pac.  2S2);  and  also  a  specification  that 
the  first  finding  of  the  court  is  not  sus- 
tained by  the  evidence,  and  is  contrary 
thereto,  with  a  repetition  in  regard  to 
the  second  and  third  findings  (Eddel- 
buttel  v.  Durrell,-  35  Cal.  277;  Parker  v. 
Eeay,  76  Cal.  103;  18  Pac.  124);  and 
also  a  specification  that  the  court  erred 
in  finding  as  it  did,  and  in  not  finding 
contrary  thereto.  Heilbron  v.  Centerville 
etc.  Ditch  Co.,  76  Cal.  8;  17  Pac.  932; 
Smith  V.  Christian,  47  Cal.  18;  Shepherd 
v.  Jones,  71  Cal.  223;  16  Pac.  711.  A 
general  specification,  that  the  evidence  is 
insuflJcient  to  justify  the  decision,  is  not 
aided  by  proper  and  particular  specifica- 
tions contained  in  the  plaintiff's  brief. 
Molera  v.  Martin,  120  Cal.  544;  52  Pac. 
825.  A  specification  as  to  the  insufficiency 
of  the  evidence  to  sustain  one  point  can- 
not be  considered  upor  an  objection  to  the 
verdict  upon  a  ground  inconsistent  there- 
with; thus,  an  objection  to  a  verdict 
against  a  sheriff  for  conversion,  that  it 
includes  the  value  of  certain  property  re- 
leased by  him,  cannot  be  considered  under 
the  specification  that  the  property  had 
never  been  taken  by  him.  Eider  v.  Edgar, 
54  Cal.  127.  Specifications  may  be  either 
in  the  positive  or  negative  form,  although 
the  latter  is  preferable,  and  criticism  in 
this  regard  goes  to  form  rather  than  to 
substance;  thus,  the  positive  form,  "It 
claarly  appears  from  the  evidence,"  etc., 
is  sufficient,  although  the  negative  form, 
"The  evidence  is  insufficient,"  etc.,  is  pref- 
erable. Drathman  v.  Cohen,  139  Cal.  310; 
73  Pac.  181.  A  specification,  that  "the 
evidence  was  insufficient  for  the  jury  to 
find  that  the  plaintiffs  were  only  entitled 
to  juilgment  for"  a  certain  sum,  without 
setting  out  what  additional  items  of  credit 
were  claimed  to  be  estaldished  by  the  evi- 
dence, is  insufficient  (Wise  v.  Wakefield, 
118  Cal.  107;  50  Pac.  310);  as  is  also  a 
specification  which  stands  alone  as  a  mere 


statement  of  what  the  evidence  shows 
(Spotts  v.  Hanley,  85  Cal.  155;  24  Pac. 
738);  and  a  specification  that  "there  is  no 
evidence  to  support  the  verdict,"  where 
several  facts  are  involved  in  and  affirmed 
by  the  verdict  (Dawson  v.  Schloss,  93  Cal. 
194;  29  Pac.  31);  and  a  specification  that 
there  was  no  evidence  to  sustain  or  jus- 
tify certain  findings  (Spotts  v.  Hanley, 
85  Cal.  155;  24  Pac  738;  Parker  v.  Eeay, 
76  Cal.  103;  18  Pac.  124);  and  a  specifica- 
tion that  the  findings  were  unsupported  by 
the  evidence.  Knott  v.  Peden,  84  Cal.  299; 
24  Pac.  160.  A  specification,  that  there 
was  no  evidence  introduced,  tending  to 
show  that  the  plaintiff. was  injured  by  any 
act  of  the  defendant,  or  that  the  plaintiff 
sustained  any  loss  by  reason  of  any  act 
of  the  defendant,  is  sufficient  (Clark  v. 
Bauer,  2  Cal.  App.  259;  83  Pac.  291);  as 
is  also  a  specification  that  there  was  no 
evidence  to  justify  or  to  prove,  or  tending 
to  prove,  such  particular  finding,  even 
where  there  is  slight,  but  insufficient,  evi- 
dence to  support  it  (Owen  v.  Pomona  Land 
etc.  Co.,  131  Cal.  530;  63  Pac.  850;  64  Pac. 
253);  and  a  specification  pointing  out  par- 
ticular findings  objected  to,  ami  calling 
attention  to  the  fact  that  none  of  them 
are  supported  by  the  evidence  (Standard 
Quicksilver  Co.  v.  Habishaw,  132  Cal.  115; 
64  Pac.  113);  and  a  specification  direct- 
ing attention,  in  various  ways,  to  the 
single  issue  of  fact  in  the  case,  and  no 
evidence  on  this  question  was  omitted 
(Pendola  v.  Eamm,  138  Cal.  517;  71  Pac. 
624);  and  a  specification  that  the  decision 
is  against  law,  in  this,  that  the  evidence 
shows  that  the  plaintiff  had  been  paid 
nothing  on  account  of  work  done  for  and 
services  rendered  by  him  (Stuart  v.  Lord, 
138  Cal.  672;  72  Pac.  142);  and  a  specifica- 
tion pointing  out  the  particular  findings 
and  parts  of  findings  which  it  is  claimed 
the  evidence  does  not  justify  (Owen  v, 
Pomona  Land  etc.  Co.,  131  Cal.  530;  63 
Pac.  850;  64  Pac.  253);  and  a  specification 
pointing  to  the  particular  finding  objected 
to  (Harris  v.  Duarte,  141  Cal.  49>;  70  Cal. 
298;  75  Pac.  58);  and  a  statement  on  mo- 
tion, that  the  evidence  fails  to  show  that 
the  defendant  was  guilty  of  certain  acts, 
being  directly  responsive  to  the  findings  of 
fact  (Brenot  v.  Brenot,  102  Cal.  294;  36 
Pac.  672) ;  and  a  specification  iiointing  out 
with  considerable  detail  the  particular 
facts  claimed  to  be  not  proved  (Holmes 
V.  Hoppe,  140  Cal.  212;  73  Pac.  1002);  and 
a  specification  of  the  insufficiency  of  the 
evidence  to  sustain  any  one  of  a  number 
of  probative  facts  found  by  the  court,  or 
any  particular  finding  contained  therein 
(Bell  v.  Staacke,  141  Cal.  186;  74  Pac. 
774) ;  and  a  specification  of  the  insuffi- 
ciency of  the  evidence  to  sustain  probative 
facts  in  regard  to  waiver  or  credit  given 
by  an  agent   (Blake  v.  National  Life  Ins. 


749 


STATEMENT,    SETTLEMENT,    ETC.,    OF. 


§659 


Co.,  123  Cal.  470;  56  Pae.  101);  and  a 
statement  setting  forth  the  views  of  coun- 
sel as  to  the  result  of  the  testimony,  an.l 
a  statement  that  the  verdict  of  the  jury 
on  each  special  issue  was  error.  Kumle 
V.  Grand  Lodge,  no  Cal.  204;  42  Pac.  CM; 
Menk  v.  Home  Ins.  Co.,  76  Cal.  50;  9  Am. 
St.  Rep.  158;  14  Pac.  837;  18  Pac.  117; 
Baird  v.  Peall,  92  Cal.  235;  28  Pac.  2S5. 
A  sj)eeification  that  the  evidence  is  insuffi- 
cient to  justify  the  findings,  without 
stating  the  particulars  wherein  the  insufli- 
ciency  lies,  is  insufficient.  Kyle  v.  Craig, 
125  Cal.  107;  57  Pac.  791;  Kuinle  v.  Crand 
Lodge,  110  Cal.  204;  42  Pac.  634.  Where 
the  statement  on  motion  for  a  new  trial 
states  that  substantially  all  the  evidence 
given  on  the  trial  is  embodied  therein, 
an  ol)jection  to  the  sufficiency  of  the  par- 
ticulars in  which  the  evidence  is  insuffi- 
cient to  justify  the  decision  will  not  be 
sustained.  Di  Nola  v.  Allison,  143  Cal. 
106;  101  Am.  St.  Rep.  84;  65  L.  R.  A.  419; 
76  Pac.  976;  American  Type  Founders  Co. 
V.  Packer.  130  Cal.  459;  62  Pac.  744;  Es- 
tate of  Motz,  136  Cal.  558;  69  Pac.  294. 
Laidlaw  v.  Pacific  Bank,  137  Cal.  392;  70 
Pac.  277;  Drathman  v.  Cohen,  139  Cal.  310; 
73  Pac.  181;  Jones  v.  Goldtree,  142  Cal. 
383;  77  Pac.  939.  Where  insufficient  speci- 
fications are  treated  as  sufficient,  or  are 
not  objected  to,  the  evidence  may  be  re- 
viewed on  appeal.  Knott  v.  Pedon,  84  Cal. 
299;  24  Pac.  160;  Jones  v.  Goldtree,  142 
Cal.  383;  77  Pac.  939.  The  appellate  court 
■will  confine  its  examination  of  the  evi- 
dence to  the  points  raised  by  the  specifica- 
tions of  the  insufficiency  of  the  evidence 
to  support  the  verdict.  Nishkian  v.  Chis- 
holm.  2  Cal.  App.  496;  84  Pac.  312. 

Settlement  of  statement.  Provisions  for 
the  settlement  of  statements  must  be 
liberally  construed,  with  a  view  to  pro- 
moting the  rights  of  the  parties,  ami  in 
the  interests  of  justice.  Douglas  v.  South- 
ern Pacific  Co.,  151  Cal.  242;  90  Pac.  538. 
Where  the  statement  prepared  by  the  de- 
fendant's counsel  represents  as  correctly 
as  possible  the  proceedings  had  on  the 
trial  of  the  cause,  the  court  should  settle 
the  same  accordiuglv.  Storke  v.  Storke, 
116  Cal.  47;  47  Pac.*869;  48  Pac.  121.  It 
is  the  duty  of  the  court  to  settle  a  pro- 
posed statement  in  all  cases,  where  the 
attorneys  are  unable  to  agree  to  it  as  filed, 
no  matter  what  reasons  exist  which  render 
them  unable  to  agree  to  it.  Lucas  v.  Marys- 
ville,  44  Cal.  210.  The  settlement  of  the 
statement  by  the  judge,  by  the  adoption 
of  the  proposed  amendments,  without  any 
express  notice  from  the  moving  party  that 
he  adopted  the  amendments,  is  pr(i[)or. 
Black  V.  Hilliker.  130  Cal.  190;  62  Pac.  4S1. 

Redundant  and  useless  matter  should  be 
stricken  out  and  statement  corrected.  It 
is  the  duty  of  the  judge,  in  settling  a 
statement,  to  strike  out  all  redundant  and 


useless  matter,  notwithstanding  the  con- 
sent of  the  parties  to  such  matter,  or  to 
an  inaccurate  statement.  Arnold  v.  Pro- 
ducers' Fruit  Co.,  141  Cal.  73S;  75  Pac.  326. 
Wlicre  the  statement,  as  settled,  does  not 
truly  state  the  case,  the  juijge  is  au- 
thorized, and  it  is  his  duty,  to  make  such 
corrections  therein  as  will  make  it  conform 
to  the  facts.  Fountain  Water  Co.  v.  Su- 
perior f'ourt,  139  Cal.  C4*<;  7.'.  I'ac.  590. 

Court  may  allow  statement  to  be 
amended.  Where  the  statement  has  been 
settled  by  the  judge  and  fileil  %vith  the 
clerk,  the  tourt  may,  on  motion  of  the 
moving  party,  vacate  the  settlement  ami 
allowance  of  the  statement,  and  allow  it 
to  be  re-engrossed,  so  as  to  indu.le  ex- 
hibits referred  to  therein,  which  had  not 
been  engrossed  at  length.  Warner  v.  F. 
Thomas  etc.  Cleaning  Works,  105  Cal.  409; 
38  Pac.  960;  Clark  v.  Rauer.  2  Cal.  App. 
259;  83  Pac.  291;  Swett  v.  Gray,  141  Cal. 
03;  74  Pac.  439;  Lucas  v.  Marvsville,  44 
Cal.  210. 

Who  must  settle  statement.  The  judge 
who  tried  the  cause  is  the  jtrojjcr  judge 
to  settle  the  statement,  and  he  can  take 
all  the  necessary  steps  to  have  it  properly 
settled.  Matthews  v.  Superior  Court,  68 
Cal.  638;  10  Pac.  128. 

Refusal  to  settle  statement.  Refusal  to 
settle  a  statement,  made  after  judgment 
has  been  ordered,  is  not  justified  by  the 
settlement  of  a  premature  statement, 
though  such  judgment  was  entered  after 
the  denial  of  the  premature  statement. 
Fountain  Water  Co.  v.  Dougherty,  134  Cal. 
376;  66  Pac.  316.  A  party's  remedy  for 
error  of  the  trial  court  in  refusing  to  set- 
tle a  statement  is  by  proper  proceedings 
to  compel  the  settlement.  Kstudillo  v.  Se- 
curitv  Loan  etc.  Co.,  158  Cal.  66;  109  Pac. 
884. 

Delay  in  engrossing  statement.  Where 
the  statement  was  a  short  one,  and  could 
have  been  engrossed  in  a  few  da^'s,  and  no 
showing  was  made,  explaining  or  excusing 
an  unreasonable  delay,  further  than  a  few 
orders  extending  the  time  to  engross,  but 
not  stating  on  what  ground  they  were 
required,  an  order  dismissing  the  motion  is 
not  an  abuse  of  discretion.  Descalso  v. 
Duane,  3  f'al.  T'nrep.  893;  33  Pac.  32s. 

Objection  to  statement  as  settled.  A 
party  who  has  notice  of  the  time  ami  place 
of  the  settlement  of  the  statement,  but 
who  does  not  attend,  cannot  complain  of 
the  statement  as  settled.  Vilhac  v.  Biven, 
28  Cal.  410. 

Signature  and  certificate  of  judge.  The 
signature  and  the  certificate  of  the  judge 
arc  imli.spensable  to  the  statement  (Adams 
V.  Dohrmanu,  63  Cal.  417);  and  a  state- 
ment, neither  signed  nor  certified  by  the 
judge,  will  not  be  consiilered  on  appeal. 
Sawver  v.  Sargent,  65  Cal.  259;  3  Pac. 
872;"  Schreiber   v.    Whitney,   60   Cal.   431; 


§659 


NEW    TRIALS. 


750 


Martin  v.  Vanderhoflf,  2  Cal.  Unrep.  485; 
7  Pac.  307;  Douglass  v.  McFarlaml,  92  Cal. 
656;  28  Pac.  687.  A  certificate,  signed  by 
the  judge,  that  the  "foregoing  statement 
of  the  case  on  motion  for  a  new  trial  is 
the  statement  settled  and  allowed  by  me 
therefor,"  is  in  accord  with  the  statute 
(Girdner  v.  Beswick,  69  Cal.  112;  10  Pac. 
278);  and  a  certificate,  that  "The  forego- 
ing statement  on  motion  for  a  new  trial 
has  been  settled  and  allowed  by  me,  and 
is  correct,"  includes  authenticated  exhibits 
as  part  thereof,  although  the  certificate  is 
attached  to  the  body  of  the  statement  and 
precedes  the  exhibits.  Sharon  v.  Sharon, 
79  Cal.  633;  22  Pac.  26,  131;  and  see  Kim- 
ball V.  Semple,  31  Cal.  657;  People  v.  Bart- 
lett,  40  Cal.  142;  Bush  v.  Taylor,  45  Cal. 
112;  Thompson  v.  Patterson,  54  Cal.  542. 
Where  the  signature  and  the  certificate  of 
the  judge  to  the  statement  were  made 
after  the  motion  has  been  heard  and  de- 
termined, and  an  appeal  taken  from  the 
order,  the  statement  is  a  nullity.  Adams 
V.  Dohrmann,  63  Cal.  417. 

Signature  and  authentication  by  attor- 
neys. The  fact  that  the  statement  is  cer- 
tified to  be  correct  by  the  attorneys  for 
both  parties  does  not  validate  it.  Schxeiber 
V.  Whitney,  60  Cal.  431.  A  paper,  printed 
in  the  record,  appearing  to  be  a  copy  of 
certain  specifications  as  to  alleged  insuffi- 
ciency of  the  evidence,  but  no  part  of  the 
statement,  and  without  authentication, 
and  signed  by  the  appellant's  attorney 
only,  cannot  be  considered  as  part  of  the 
statement  or  record  (O'Leary  v.  Castle, 
133  Cal.  508;  65  Pac.  950);  and  a  state- 
ment, signed  only  by  the  attorney  for  the 
respondent,  is  not  a  part  of  the  record, 
nor  has  it  any  place  in  the  transcript. 
Barclav  v.  Blackinton,  127  Cal.  189;  59 
Pac.  834. 

Filing  of  statement.  The  statement  is 
not  required  to  be  filed  until  it  has  been 
signed  by  the  judge,  with  his  certificate 
that  it  is  allowed,  and  it  is  not  a  part  of 
the  record  until  it  is  filed.  Biagi  v.  Howes, 
55  Cal.  469;  6  Pac.  100.  A  statement 
which  has  never  been  filed  is  no  part  of 
the  record,  and  cannot  be  considered  on 
appeal.  Wells  v.  Kreyenhagen,  117  Cal. 
329;  49  Pac.  128;  Mills  v.  Dearborn,  82 
Cal.  51;  22  Pac.  1114;  Mix  v.  San  Diego 
etc.  R.  Co.,  86  Cal.  235;  24  Pac.  1027.  Any 
statement  agreed  to  by  the  parties,  or  duly 
settled  and  certified  by  the  court,  becomes 
a  part  of  the  record,  when  it  is  filed. 
Towdy  V.  Ellis,  22  Cal.  650.  A  stipula- 
tion that  a  statement  has  been  served  in 
time,  and  was  correct,  and  might  be  pre- 
sented for  settlement  without  further 
notice,  does  not  estop  opposing  counsel 
from  claiming  that  it  was  not  filed.  Mills 
V.  Dearborn,  82  Cal.  51;  22  Pac.  1114.  A 
stipulation  that  a  statement  on  motion  for 
a   new   trial   shall   be   filed,   which   waives 


informalities  respecting  filing  and  service, 
does  not  justify  the  moving  party  in 
neglecting  to  file  the  statement  for  five 
mouths  after  the  date  of  the  stipulation. 
Potter  V.  Froment,  47  Cal.  165.  Failure  to 
file  a  statement  of  the  case  after  notice 
of  intention  to  move  for  a  new  trial,  is 
a  waiver  of  the  right  to  move  for  a  new 
trial.  Cooney  v.  Furlong,  66  Cal.  520;  6 
Pac.  388;  Stoyell  v.  Cole,  19  Cal.  602; 
Campbell  v.  Jones,  41  Cal.  515;  Thompson 
V.  Lynch,  43  Cal.  482;  O'Neil  v.  Dougherty, 
47  Cal.  164.  The  motion  for  a  new  trial 
cannot  be  passed  on  by  the  court  until 
the  bill  of  exceptions  or  statement  has 
been  filed.  Wells  v.  Kreyenhagen,  117  Cal. 
329;  49  Pac.  128.  A  statement,  not  filed 
within  the  time  allowed  by  law,  will  be 
disregarded  on  appeal,  where  the  time  was 
not  extended  either  by  stipulation  or 
order,  and  no  amendment  was  proposed. 
Wheeler  v.  Karnes,  125  Cal.  51;  57  Pac. 
893.  To  file  a  paper  is  to  place  it  in  the 
official  custody  of  the  clerk,  to  be  by  him 
permanently  kept  among  the  papers  in  the 
cause,  open  to  the  inspection  of  those  hav- 
ing a  right  to  inspect  the  same;  this,  ac- 
companied by  payment  of  the  proper  fee, 
constitutes  a  sufficient  filing  of  papers. 
McCann  v.  McCann,  20  Cal.  App.  564;  129 
Pac.  965. 

Extension  of  time  to  file  statement.  The 
court  may  extend  the  time  within  which 
to  file  the  statement.  Harper  v.  Minor,  27 
Cal.  107;  Jenkins  v.  Frink,  27  Cal.  337; 
Carrillo  v.  Smith,  37  Cal.  337.  An  order 
giving  twenty  days'  time  in  which  to  file 
the  statement  must  be  construed  as  giving 
twenty  days  from  the  date  of  the  order 
(.Jenkins  v.  Frink,  27  Cal.  337);  and  an 
order  extending  the  time  is  good  only  for 
the  period  prescribed  by  law.  Cottle  v. 
Leitch,  43  Cal.  320.  The  order  should 
be  in  writing,  and  entered  in  the  court 
minutes,  in  open  session,  or  signed  by  the 
judge  and  filed.  Campbell  v.  Jones,  41 
Cal.  515.  An  order  extending  the  time, 
made  after  the  time  for  filing  the  state- 
ment has  expired,  is  void  (Bear  Eiver  etc. 
Mining  Co.  v.  Boles,  24  Cal.  354);  and 
the  time  for  filing  is  not  extended,  where 
the  judge  fails  to  have  the  order  extend- 
ing the  time  entered  of  record.  Campbell 
V.Jones,  41  Cal.  515. 

Motion  on  minutes  of  court,  notice  must 
specify  what.  Where  the  motion  for  a 
new  trial  is  made  on  the  minutes  of  the 
court,  the  notice  of  the  motion  must 
specify  the  particulars  in  which  the  evi- 
dence is  insufficient,  if  such  insufficiency 
is  a  ground  of  the  motion,  and  must 
specify  the  particular  errors  of  law  upon 
which  the  moving  party  will  rely.  Es- 
tudillo  V.  Security  Loan  etc.  Co.,  158  Cal. 
66;  109  Pac.  884.  A  motion  made  upon 
the  minutes  of  the  court  must  be  denied, 
where  it  does  not  contain  the  specification 


751 


MOTION,    NATURE,   ETC.,    OF — MANDAMUS — APPEAL. 


§659 


of  particulars  required  by  the  fourth  sub- 
division of  this  section.  National  Bank  v. 
Mulford,  17  Cal.  App.  551;  120  Pac.  446. 
The  particulars  required  by  tliis  section 
must  be  specified,  or  there  can  he  no  re- 
view, on  apf)eal,  of  the  sufficiency  of  the 
evidence  and  errors  of  law.  Estudillo  v. 
Security  Loan  etc.  Co.,  158  Cal.  71;  109 
Pac.  884. 

Jurisdiction  of  superior  court.  The  su- 
perior court  has  no  jurisdiction  to  re- 
examine an  issue  of  fact  tried  by  it,  and 
change  its  decision  thereon,  unless  all  the 
parties  to  the  issue  and  the  former  decis- 
ion are  properly  before  it.  Niles  v.  Gon- 
zalez, 155  Cal.  359;  100  Pac.  1080;  Ford 
V.  Braslan  Seed  Growers  Co.,  10  Cal.  App. 
762;  103  Pac.  946. 

Nature  of  motion.  The  motion  for  a 
new  trial  is  in  the  nature  of  a  distinct 
proceeding,  and  is  to  be  heard  on  an  in- 
dependent record,  distinct  from  the  record 
on  which  the  judgment  depends.  Bode  v. 
Lee,  102  Cal.  583;  36  Pac.  936;  Kalt- 
schmidt  v.  Weber,  136  Cal.  675;  69  Pac. 
497. 

Abandonment  of  motion,  effect  of.  The 
abandonment  of  a  motion  for  a  new  trial, 
by  one  of  the  defendants,  does  not  pre- 
clude another  defendant  from  prosecuting 
his  own  motion  therefor,  or  from  appeal- 
ing from  the  judgment  therein.  Johnson 
V.  Reed,  125  Cal.  74;  57  Pac.  6S0. 

Motion  must  state  grounds.  The  mo- 
tion for  a  new  trial  must  state  the  par- 
ticular grounds  on  which  it  is  based;  but 
this  may  be  done  by  reference  to  the 
notice  of  intention.  Williams  v.  Hawley, 
144  Cal.  97;  77  Pac.  762;  and  see  Holver- 
stot  V.  Bugby,  13  Cal.  43;  People  v.  Ah 
Sam,  41  Cal.  645;  Herrlich  v,  McDonald, 
80  Cal.  472;  22  Pac.  299. 

What  may  be  considered  on  motion.  In 
passing  on  the  motion,  the  court  below 
cannot  go  beyond  the  grounds  on  which 
the  new  trial  is  asked;  and  where  the  new 
trial  is  asked  upon  the  ground  of  the  in- 
sufficiency of  the  pleading,  the  evidence 
introduced  on  the  trial  cannot  be  consid- 
ered. Alpers  V.  Hunt,  86  Cal.  78;  21  Am. 
St.  Rep.  17;  9  L.  R.  A.  483;  24  Pac.  846. 

Refusal  of  new  trial.  There  is  no  error 
in  refusing  to  grant  a  new  trial,  where 
the  statute  governing  new  trials  has  not 
been  complied  with.  Williams  v.  Gregory, 
9  Cal.  76.  Where  the  appellant,  on  mo- 
tion, was  granted  relief  from  his  failure 
to  serve  the  statement  in  time,  and  the 
statement  was  duly  settled  and  certified 
by  the  court,  there  is  no  presumption  that 
the  new  trial  was  refused  on  the  ground 
of  delay  in  service.  Baily  v.  Kreutzmann, 
141  Cal.  519;  75  Pac.  104. 

Notice  of  order  denying  new  trial. 
Notice  of  the  entry  of  an  order  denying 
a  new  trial  is  not  required.  Bell  v.  Staacke, 
148  Cal.  404;  83  Pac.  245. 


Setting  aside  order  for  new  trial.  An 
order  for  a  new  trial  will  he  set  aside, 
where  the  statutory  requirements  have  not 
been  complied  with.  Hill  v.  White,  2  Cal. 
306. 

Mandamus.  On  refusal  to  settle  the 
statement,  after  a  decision  against  a  peti- 
tion to  revoke  the  probate  of  a  will,  the 
j>roper  remedy  is  by  mandamus  to  compel 
the  settlement,  and  not  by  an  appeal  from 
an  order  denving  a  new  trial.  Hartmann 
V.  Smith,  140  Cal.  461;  72  Pac.  7.  Man- 
damus does  not  lie  to  compel  the  settle- 
ment of  the  statement  on  motion  for  a  new 
trial,  where  the  notice  was  given  before 
a  decision  by  the  court.  James  v.  Superior 
Court,  78  Cai.  107;  20  Pac.  241. 

Appeal.  Notice  of  appeal  from  an  order 
denying  a  motion  for  a  new  trial  need  be 
served  only  on  the  parties  who  were  ad- 
verse to  the  motion.  Niles  v.  Gonzalez, 
155  Cal.  359;  100  Pac.  1080.  The  notice 
of  intention  constitutes  no  part  of  the  rec- 
ord on  appeal  from  an  order  granting  or 
refusing  a  new  trial.  Hook  v.  Hall,  68  Cal. 
22;  8  Pac.  596.  A  statement  on  motion 
for  a  new  trial,  not  signed  or  certified  by 
the  trial  judge,  cannot  be  considered  on 
appeal.  Sawyer  v.  Sargent,  65  Cal.  259; 
3  Pac.  872.  An  appeal  lies  from  an  order 
refusing  an  application  to  settle  the  state- 
ment, where  the  party  seeking  the  settle- 
ment has  not  fully  complied  with  the 
statutory  requirements,  and  appeals  to  the 
court  for  relief  on  the  ground  that  his 
failure  has  been  caused  by  surprise,  acci- 
dent, and  excusable  neglect,  when  relief 
rests  in  the  discretion  of  the  court.  Murphy 
v.  Stelling,  138  Cal.  641;  72  Pac.  176.  Al- 
though the  appellate  court  has  power  to 
dismiss  an  appeal  for  a  failure  to  proceed 
with  proper  diligence  to  procure  a  settle- 
ment of  the  statement,  yet  the  better  prac- 
tice is  to  require  the  respondent  to  avail 
himself  of  that  objection  in  the  lower 
court,  when  the  proceeding  for  the  settle- 
ment of  the  statement  is  pending.  Curtin 
V.  Engle,  155  Cal.  53;  99  Pac.  480.  An 
irregularity  complained  of,  not  appearing 
in  the  record  as  one  of  the  grounds  of  the 
motion,  will  not  be  considered  on  appeal 
(Wilcoxson  V.  Burton,  27  Cal.  228;  87  Am, 
Dec.  66);  nor  an  objection  that  the  decis- 
ion is  against  law.  Polk  v.  Boggs,  122  Cal. 
114;  54  Pac.  536.  The  appellate  court  will 
confine  its  examination  of  evidence  to  the 
points  embraced  within  the  specifications. 
Nishkian  v.  Chisholm,  2  Cal.  App.  496;  84 
Pac.  312.  Where  a  motion  for  a  new  trial 
is  made  upon  a  bill  of  exceptions  or  a 
statement,  it  is  not  necessary  that  the 
moving  party  shall  appeal  from  the  order 
denying  him  a  new  trial  as  a  condition 
to  his  right  to  use  the  bill  of  exceptions  ol 
the  statement  upon  appeal  from  the  judg- 
ment; and  there  seems  to  be  no  distinction 
between  these  cases  and  one  in  which  the 
motion   has   been   made   upon   the  minutes 


§660 


NEW   TRIALS. 


752 


of  the  court.  Vinson  v.  Los  Angeles  Pacific 
E.  E.  Co.,  141  Cal.  151;  74  Pac.  757. 

Terms  defined  and  distinguished.  The 
word  "grounds,"  in  the  phrase  in  the  intro- 
ductorj'  paragraph  of  this  section,  "desig- 
nating the  grounds  upon  which  the  motion 
will  be  made,"  are  the  "causes,"  in  §  657, 
ante,  for  which  a  new  trial  mav  be  granted. 
Molera  v.  Martin,  120  Cal.  544;  52  Pac.  825. 
The  only  distinction  between  a  "bill  of 
exceptions"  and  a  '•'statement  of  the  case" 
is,  that  the  latter,  in  addition  to  setting 
forth  the  exceptions,  also  sets  forth  the 
particular  errors  upon  which  the  moving 
party  relies.  Pease  v.  Fink,  3  Cal.  App. 
371;  85  Pac.  657. 

New  trial  after  satisfaction  of  judgment.  See 
notes  3   Ann.  Cas.   19;    68  L.  R.   A.   126. 

Eight  to  new  trial  of  party  who  has  lost  benefit 
of  his  exceptions  from  causes  beyond  his  control. 
See  note  12  Ann.  Cas.  1056. 


Eight  of  adverse  party  on  motion  for  new  trial 
to  introduce  counter-affidavits.  See  note  Ann. 
Cas.  1912D,  1303. 

CODE  COMMISSIONEES'  NOTE.  1.  Notice 
must  be  in  writing.  Borland  v.  Thornton,  12 
Cal.    443. 

2.  Must  be  filed.  Jenkins  v.  Frink,  27  Cal. 
337. 

3.  Must  be  served.  Bear  River  etc.  Min.  Co. 
V.  Boles,  24  Cal.  354.  Acknowledgment  of  ser- 
vice.   Towdy  V.  Ellis,  22  Cal.  650. 

4.  Time.  Ellsassar  v.  Hunter,  26  Cal.  279; 
Garwoud  v.  Simpson,  8  Cal.  108;  DufE  v.  Fisher, 
15  Cal.  380:  People  v.  Hill,  16  Cal.  113;  Ma- 
honey  V.  Caperton,  15  Cal.  313;  Crowther  v. 
Rowlandson,  27  Cal.  385;  Casement  v.  Ringgold, 
28  Cal.  337;  Genella  v.  Relyea,  32  Cal.  159; 
Carpentier  v.  Thurston,  30  Cal.  123;  Peck  v. 
Courtis,  31  Cal.  207;  Gray  v.  Palmer,  28  Cal. 
416. 

5.  First  notice  cannot  be  abandoned.  Le  Roy  v. 
Rassette,  32  Cal.  171. 

6.  Filing  and  serving  notice  does  not  stay  pro- 
ceedings. Crowther  v.  Rowlandson,  27  Cal.  385, 
Ortman  v.  Di.xon,  9  Cal.  23:  see  also  Lurvey  v. 
"Wells  Fargo  &  Co.,  4  Cal.  106. 


§  660.  Motion,  when  to  be  heard.  The  motion  for  a  new  trial  must  be 
heard  at  the  earliest  practicable  time  after  the  filing  of  affidavits  and  coun- 
ter-affidavits, in  case  the  motion  is  made  on  affidavits,  in  other  cases  after 
the  filing  of  the  notice.  On  such  hearing  reference  may  be  had  in  all  cases 
to  the  pleadings  and  orders  of  the  court  on  file,  and  when  the  motion  is 
made  on  the  minutes,  reference  may  also  be  had  to  any  depositions  and 
documentary  evidence  offered  at  the  trial  and  to  the  report  of  the  proceed- 
ings on  the  trial  taken  by  the  phonographic  reporter,  or  to  any  certified 
transcript  of  such  report,  or  if  there  be  no  such  report  or  certified  tran- 
script, to  such  proceedings  occurring  at  the  trial  as  are  within  the  recol- 
lection of  the  judge ;  w^hen  the  proceedings  at  the  trial  have  been  phono- 
graphically  reported,  but  the  reporter's  notes  have  not  been  transcribed,  the 
reporter  must,  upon  request  of  the  court,  or  either  party,  attend  the  hearing 
of  the  motion,  and  shall  read  his  notes,  or  such  parts  thereof  as  the  court, 
or  either  party,  may  require.  The  hearing  and  disposition  of  the  motion 
for  a  new  trial  shall  have  precedence  over  all  other  matters  except  criminal 
cases,  probate  matters  and  cases  actually  on  trial,  and  it  shall  be  the  duty 
of  the  court  to  determine  the  same  at  the  earliest  possible  moment.  The 
power  of  the  court  to  pass  on  motion  for  new  trial  shall  expire  within  three 
months  after  the  verdict  of  the  jury  or  service  on  the  moving  party  of 
notice  of  the  decision  of  the  court.  If  such  motion  is  not  determined  within 
said  three  months,  the  effect  shall  be  a  denial  of  the  motion  without  further 
order  of  the  court. 


Chambers,  motions  for  new  trials  may  be  heard 
at.     Ante,  §  166. 

Legislation  §  660.  1.  Enacted  March  11,  1872, 
and  then  read:  "At  the  time  specified  in  the  no- 
tice, or  at  such  other  time  as  the  court  or  judge 
may  adjourn  the  hearing  to,  not  exceeding  ten 
days,  the  motion  must  be  heard.  If  the  moving 
party  fail  to  appear  at  either  time  it  must  be  dis- 
missed, and  the  case  will  stand  as  though  no 
motion  had  ever  been  noticed  or  made.  If  heard 
by  the  court  or  judge,  it  must  be  decided  within 
ten  days  after  the  hearing." 

2.  Amended  by  Code  Amdts.  1873-74, 
p.  317,  to  read:  "§  660.  The  application  for  a 
new  trial  shall  be  heard  at  the  earliest  prac- 
ticable period  after  notice  of  the  motion,  if  the 
motion  is   to  be  heard   upon  the  minutes  of  the 


court,  and  in  other  cases,  after  the  affidavits,  bill 
of  exceptions,  or  statement,  as  the  case  may  be, 
are  filed,  and  may  be  brought  to  a  hearing  upon 
motion  of  either  party.  On  such  hearing  refer- 
ence may  be  had  in  all  cases  to  the  pleadings 
and  orders  of  the  court  on  file,  and  when  the 
motion  is  made  on  the  minutes,  reference  may 
also  be  had  to  any  depositions,  documentary 
evidence,  and  phonographic  report  of  the  testi- 
mony on  file." 

3.  Amendment  by  Stats.  1901,  p.  149;  un- 
constitutional.    See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  718,  in 
second  sentence,  substituting  "and  documentary 
evidence  offered  at  the  trial,  and  to  the  report 
of  the  proceedings  on  the  trial  taken  by  the 
phonographic   reporter,    or   to   any    certified   tran- 


753 


HEARING   MOTION — STRIKING  OUT — IMPOSING  TERMS. 


§660 


script  of  such  report"  for  "documentary  evi- 
dence, and  phonograi)hic  rep<irt  of  the  testi- 
mony on  file";  the  code  roinmissioner  sayini^, 
"The  aniendmont  permits  reference  to  be  hud 
to  any  certified  transcript  of  the  reporter's  noti'S 
on  the  hearing  of  the  motion,  whether  on  tile  or 
not." 

5.  Amended  by  Stats.  1915,  p.  202,  (1)  re- 
castintc  the  first  sentence;  (2)  in  second  sen- 
tence, adding  new  provisions  at  the  end  thereof, 
and  also  adding  the  thrue  final  sentences. 

Time  of  hearing  motion.  A  motion  for 
a  new  trial  may  bo  brought  on  for  hear- 
ing after  notice,  and  after  a  full  oppor- 
tunity to  the  adverse  party  to  meet  the 
contentions  of  the  moving  party.  Eades 
V.  Trowbridge,  143  Cal.  25;  TGPac.  714. 
Where  the  objection  that  a  motion  for  a 
new  trial  was  not  heard  within  a  reason- 
able time  was  first  made  on  appeal,  it  will 
be  presumed  that  the  time  was  extended 
by  consent  of  the  parties.  Churchill  v. 
Flournoy,  127  Cal.  355;  59  Pac.  791;  and 
see  Boggs  v.  Clark,  37  Cal.  236;  Patrick  v. 
Morse,  04  Cal.  462;  2  Pac.  49;  Horton  v. 
Jack,  11.-)  Cal.  29;  46  Pac.  920. 

Bringing  motion  to  hearing.  Although 
a  motion  for  a  new  trial  may  be  brought 
to  a  hearing  by  either  party,  yet  the  op- 
posing party  may  apply  for  a  dismissal 
where,  through  inexcusable  neglect,  the  mo- 
tion has  not  been  brought  into  condition 
for  hearing,  and  an  order  denying  and  dis- 
missing the  motion  for  a  new  trial,  though 
inconsistent,  will  not  be  reversed  on  that 
ground.  Desealso  v.  Duane,  3  Cal.  Unrep. 
893;  33  Pac.  328;  Quivey  v.  Gambert,  32 
Cal.  304;  Calderwood  v.  Peyser,  42  Cal. 
110;  McDonald  v.  McConkey,  57  Cal.  325. 
A  motion  for  a  new  trial  may  be  dismissed 
on  the  ground  that  it  has  not  been  prose- 
cuted with  due  diligence:  the  question  as 
to  whether  there  has  been  due  diligence 
is  one  largely  within  the  discretion  of  the 
trial  court.  Dorcy  v.  Brodis,  153  Cal.  673; 
96  Pac.  278.  A  defendant,  who  has  served 
proposed  amendments  to  the  plaintiff's 
statement,  is  not  required  to  take  any 
further  proceedings  towards  its  settlement. 
Lee  Doon  v.  Tesh,  131  Cal.  406;  63  Pac.  764. 

What  may  be  used  at  hearing.  The  mo- 
tion is  in  the  nature  of  a  distinct  proceed- 
ing, and  is  to  be  heard  upon  an  independent 
record,  distinct  from  the  record  upon  which 
the  judgment  dejiciids;  and  reference  may 
be  had  to  the  pleadings  to  ascertain  the 
issues  in  the  case,  and  determine  the  cor- 
rectness of  the  rulings  of  the  court  as  to 
the  relevancy  of  the  evidence;  but  whether 
the  complaint  is  sufficient  to  support  the 
judgment,  or  whether  the  court  erred  in 
overruling  a  demurrer  to  the  complaint, 
can  be  considered  only  on  an  appeal  from 
the  judgment.  Bode  v.  Lee,  102  Cal.  5S3; 
36  Pac.  936;  Byxbee  v.  Dewey,  128  Cal. 
322;  60  Pac.  847;  Lambert  v.  Marcuse, 
137  Cal.  44;  69  Pac.  620;  and  see  Onder- 
donk  V.  San  Francisco,  75  Cal.  534;  17  Pac. 
1  Fair. — 43 


67S;  Whe.der  v.  Kassabaum,  76  Cal.  90; 
18  Pac.  119;  Evan.s  v.  Paige,  102  Cal.  132; 
36  Pac.  406.  The  motion  for  a  new  trial, 
80  far  as  it  is  basoil  on  a  bill  of  excep- 
tions, is  basofl  an<l  must  be  heard  and  de- 
termined on  the  bill  that  has  become  the 
record  of  the  court  (Merced  Bank  v.  I'rice, 
152  Cal.  699;  93  Pac.  866);  it  can  be  heard 
only  on  tlie  record  made  and  settled  before 
the  motion  was  made.  Quivey  v.  Gambert, 
32  Cal.  3U4.  Where  the  motion  is  made 
on  the  ground  of  newly  discovered  evi- 
dence, alliilavits  not  teixling  to  jirove  any 
of  the  allegations  of  the  complaint,  but 
which  are  contradictory  thereof,  cannot  bo 
used.  Bates  v.  Bates,  71  Cal.  307;  12  Pac 
223.  The  moving  party  may  rely  on  the 
recollection  of  the  judge  as  to  the  evidence 
and  proceedings,  though  not  reported,  and 
can  thereafter  secure  a  statement  of  the 
case,  including  the  evidence  material  to 
the  motion,  and  mandamus  lies  to  compel 
the  settlement  of  such  statement.  Mal- 
colmson  v.  Harris,  90  Cal.  262;  27  Pac.  206. 
The  right  to  be  heard  involves  the  right 
to  get  the  facts  properly  before  the  court, 
and  the  right  to  aid  and  assist  the  court 
by  argument  and  authority  on  questions  of 
law.  Eades  v.  Trowbridge,  143  Cal.  25;  76 
Pac.  714. 

Stay  of  proceedings.  A  motion  for  a 
new  trial  docs  not  stay  proceedings;  but 
the  court,  in  its  discretion,  may,  ui)on  mo- 
tion, grant  a  stav.  Pierce  v.  Los  .\ngcles, 
159  Cal.  516;  114  Pac.  SIS. 

Grounds  stated  at  hearing.  The  grounds 
upon  wliich  a  motion  for  a  now  trial  may 
be  resisted  should  be  raised  on  the  argu- 
ment. Quivey  v.  Gambert,  32  Cal.  304. 
The  reasons  for  granting  or  refusing  the 
motion  need  not  be  specified  in  the  order. 
Estate  of  Martin,  113  Cal.  479;  45  Pac.  813. 

Striking  out  notice  or  statement.  A 
notice  or  statement  on  motion  for  a  new 
trial  should  never  be  stricken  out.  Quivey 
V.  Gambert,  32  Cal.  304;  Calderwood  v. 
Peyser,  42  Cal.  110.  A  party  is  entitled  to 
a  ruling  on  his  motion  for  a  new  trial 
(Quivey  v.  Gambert,  32  Cal.  304) ;  but  the 
dismissal  of  the  motion  is  a  denial  of  it. 
Davis  V.  Hurgren,  125  Cal.  48;  57  Pac.  684; 
Warden  v.  Mendocino  County.  32  Cal.  655. 

power  of  court  to  impose  terms.  The 
trial  court  has  power  to  impose  terms  and 
conditions  in  granting  or  donving  the  mo- 
tion (Garoutte  v.  Haley,  104  "Cal.  497;  3S 
Pac.  194;  Brooks  v.  San  Francisco  etc.  Rv. 
Co.,  no  Cal.  173;  42  Pac.  570);  and  fail- 
ure to  perform  the  conditions  converts 
the  order  into  a  denial  of  the  motion. 
Garoutte  v.  Holey,  104  Cal.  497;  38  Pac. 
194;  Eaton  v.  .Jones.  107  Cal.  487;  40  Pac 
798;  Garoutte  v.  Williamson,  108  Cal.  135; 
41  Pac.  35;  413;  Brown  v.  Cline,  109  Cal. 
156;  41  Pac.  862;  Holtum  v.  Greif,  144  Cal. 
521;  78  Pac  11.  .\  condition  that  the 
plaintiff    pay    a   certain    amount    as    costs 


§661 

cannot  be  complained  of  by  the  defendant 
(Anglo-Xevada  Assurance  Corp.  v.  Koss, 
193  Cal.  520;  56  Pae.  335;  Brooks  v.  San 
Francisco  etc.  Ky.  Co.,  110  Cal.  173;  42 
Pae.  570) ;  and  the  remission  of  a  portion 
of  the  verdict  may  be  imposed  as  a  con- 
dition, if  the  verdict  is  for  more  than  the 
evidence  justifies.  Etchas  v.  Orena,  121 
Cal.  270;  53  Pae.  798;  Sherwood  v.  Kyle, 
125  Cal.  652;  58  Pae.  270;  Swett  v.  Gray, 
141  Cal.  63;  74  Pae.  439;  Gregg  v.  San 
Francisco  etc.  Ry.  Co.,  59  Cal.  312;  Doolin 
V.  Omnibus  Cable  Co.,  125  Cal.  141;  57 
Pae.  774.  Unwarranted  conditions  do  not 
render  the  order  void,  where  the  motion 
is  granted  for  any  valid  reason.  Bledsoe 
V.  Decrow,  132  Cal.  312;  64  Pae.  397. 

Motion  denied  when.  A  motion  for  a 
new  trial  should  be  denied,  where  the 
notice  or  statement  was  not  served  in 
time.  Quivey  v.  Gambert,  32  Cal.  304.  A 
notice  of  motion  for  a  new  trial,  specify- 
ing that  it  will  be  made  upon  the  minutes 
of  the  court,  cannot  be  considered,  where  it 
is  not  embodied  in  any  statement  or  bill 
of  exceptions,  nor  authenticated  in  any 
way.  Leonard  v.  Shaw,  114  Cal.  G9;  45 
Pae.  1012. 

Granting  new  trial  as  to  some  issues  or 
some  parties.  A  new  trial  may  be  granted 
as  to  part  of  the  issues  (San  Diego  Land 
etc.  Co.  V.  Neale,  78  Cal.  63;  3  L.  E.  A. 
83;  20  Pae.  372;  Duff  v.  Duff,  101  Cal.  1; 
35  Pae.  437;  Flinn  v.  Mowry,  131  Cal.  481; 
^3  Pae.  724,  1006),  and  also  as  to  issues 
raised  by  a  cross-comnlaint,  without  grant- 
ing one  as  to  those  raised  by  the  complaint 
and  answer.  Jacob  v.  Carter,  4  Cal.  Unrep. 
543;  36  Pae.  381.  In  granting  the  motion 
as  to  certain  particular  issues  only,  the 
trial  court  should,  by  its  order,  recite  with 
great  certainty,  and  in  terms,  the  issues 
on  which  the  new  trial  is  to  be  had.  Moun- 
tain Tunnel  etc.  Mining  Co.  v.  Bryan,  111 
Cal.  36;  43  Pae.  410.  Where  the  motion 
was  made  by  all  the  parties  defendant, 
though  a  portion  of  them  disclaimed  any 
interest,  the  granting  of  the  motion  being 
proper  as  to  one,  it  is  immaterial  to  the 
plaintiff  whether  it  was  granted  to  all  or 
as  to  one.  Boehmer  v.  Big  Rock  Irrigation 
Dist.,  117  Cal.  19;  48  Pae.  908. 

Effect  of  granting  or  denying.  An  order 
granting  the  motion  vacates  the  judgment. 


NEW   TRIALS. 


754 


Etchas  V.  Orena,  121  Cal.  270;  53  Pae.  798. 
When  the  motion  is  granted  as  to  all  the 
parties,  the  whole  judgment  falls,  as  an 
incident  to  the  vacation  of  the  verdict  or 
decision;  and  when  the  motion  is  granted 
as  to  some  of  the  parties,  the  findings 
which  determine  their  rights  are  set  aside, 
and  as  to  them  the  case  stands  as  if  it  had 
never  been  tried;  but  the  judgment  and 
findings,  so  far  as  they  determine  the 
rights  of  the  moving  party,  and  of  those 
as  to  whom  the  new  trial  has  been  denied, 
continue  to  exist,  and  the  judgment  is  ap- 
pealable. Wittenbrock  v.  Bellmer,  62  Cal. 
558.  After  the  motion  has  been  denied, 
the  moving  party  is  not  at  liberty  to  make 
a  second  motion  therefor,  either  on  any 
grounds  on  which  the  court  has  onco  de- 
nied it,  or  on  any  grounds  which  might 
have  been  presented  in  the  first  instance. 
Egan  v.  Egan,  90  Cal.  15;  27  Pae.  22.  An 
order,  not  appealed  from,  denying  a  pre- 
vious motion  to  dismiss  proceedings  for  a 
new  trial,  on  the  ground  of  delay  in  pre- 
senting it,  is  not  res  adjudicata  upon  a 
renewed  motion,  made  long  after  the  order 
denying  the  former  motion,  unless  the 
order  made  thereon  was  made  upon  the 
same  facts  which  existed  when  the  pre- 
vious motion  was  made;  and  the  burden 
is  then  on  the  plaintiff  to  show  that  the 
facts  were  the  same.  Lee  Doon  v.  Tesh, 
131  Cal.  406;  63  Pae.  764.  The  recitals 
in  the  order  denying  the  motion,  though 
contradictory  to  the  findings  in  the  case, 
do  not  operate  to  change  the  findings: 
they  can  be  set  aside  only  by  granting  a 
new  trial.  Hawxhurst  v.  Rathgeb,  119  Cal. 
531;  63  Am.  St.  Rep.  142;  51  Pae.  846. 

Amendment  of  order.  An  order  amend- 
ing the  order  granting  a  new  trial  super- 
sedes the  original  order,  and  becomes  the 
only  order  of  the  court  on  the  motion. 
Garoutte  v.  Haley,  104  Cal.  497;  38  Pae. 
194.  Where  the  payment  of  costs,  imposed 
as  a  condition  for  granting  the  motion, 
was  not  made  within  the  time  specified  in 
the  order,  the  court  has  no  power  to  make 
a  further  order  granting  the  motion  with- 
out such  payment.  Brown  v.  Cline,  109 
Cal.  156;  41  Pae.  862.  The  court  cannot 
vacate  the  order  after  it  has  been  regu- 
larlv  made  and  entered.  Holtum  v.  Greif, 
144"Cal.  521;  78  Pae.  11. 


§661.     [Record  on  appeal.     Repealed.] 


I.erislation  g  661.  1.  Enacted  March  11, 
1872. 

f».  Amended  by  Code  Amdts.  1873-74, 
p.  318. 

3.  Amendment  by  Stats.  1901,  p.  150;  un- 
constitutional.    See  note  ante,  §  5. 

4.  Repealed  by  Stats.  1915,  p.  202. 

Construction  of  sections.  Where  the 
party  aggrieved  dfsircs  to  rely  on  the  in- 
sufficiency   of    the   evidence,   or   on    errors 


not  appearing  on  the  judgment  roll,  he 
must  either  secure  a  bill  of  exceptions 
under  §  649  or  §  650,  ante,  or  take  the 
I)roper  steps  to  complete  a  motion  for  a 
new  trial  under  §  659,  ante.  Jue  Fook  Sam 
V.  Lord,  83  Cal.  159;  23  Pae.  225.  A  judg- 
ment of  dismissal,  without  findings  of  fact, 
and  without  an  opportunity  to  the  appal- 


755 


JUDGMENT    KOLL,    WHAT    IS,    ETC. — AFFIDAVITS   AUTHENTICATED. 


§661 


lant  to  iiroiiare  a  record,  is  not  "an  excep- 
tion to  tlie  decision  and  verdict,''  within 
§  9."i9,  post.  Kiekey  Land  etc.  ('o.  v.  (ilador, 
153  C'al.  179;  94  Pac.  7G8.  Whore  it  ap- 
pears on  the  face  of  the  record  that  tlie 
statute  was  not  followed  in  making  it  up, 
that  fact  may  be  urged,  both  in  tlie  lower 
court  and  on  api)eal,  as  a  reason  why  the 
motion  for  a  new  trial  shouM  l)e  denied. 
Henrv  v.  Merguirc,  lOG  Cal.  1-12;  39  Pac. 
599. 

Purpose  of  section.  The  obvious  pur- 
pose of  this  section  was  to  provide  that 
any  statement  or  bill  of  e.xccptions  regu- 
larly settled  in  any  i>rocecding  in  whi(di 
such  statement  or  bill  might  be  lawfully 
settled  could  be  used  on  an  appeal  from 
a  judgment,  although  it  was  not  originally 
intended  for  that  purpose.  Foley  v.  Foley, 
120  Cal.  33;  65  Am.  St.  Rep.  147;  52  Pac. 
122;  Vinson  v.  Los  Angeles  Pacific  R.  R. 
•Co.,  141  Cal.  151;  74  Pac.  757;  7  Cal. 
Unrep.  142;  72  Pac.  840. 

Necessity  for  judgment  roll.  The  judg- 
ment roll  must  api>ear  in  and  constitute  a 
part  of  the  record  in  all  cases  on  appeal. 
Thomas  v.  Anderson,  55  Cal.  43.  On  ap- 
peal from  an  order  denying  a  motion  for 
a  new  trial,  the  judgment  roll  must  be 
in  the  transcript.  Kiniple  v.  Conwav,  69 
■Cal.  71;  10  Pac.  189. 

What  constitutes  judgment  roll.  There 
is  no  judgment  roll,  strictly  speaking,  in 
proceedings  in  probate;  but  whenever  such 
proceedings  are  so  akin  to  a  civil  action 
as  to  necessitate  the  papers  declared  by 
§  670,  post,  to  constitute  the  judgment  roll 
in  a  civil  action,  they  may  be  lield  to  con- 
•stitute  the  judgment  roll  referred  to  by 
this  section.  Estate  of  Ryer,  110  Cal.  556; 
42  Pac.  1082.  A  motion  to  strike  out  parts 
of  an  answer,  and  an  order  denying  the 
same,  not  embodied  in  any  statement  or 
bill  of  exceptions,  cannot  be  considered 
on  appeal:  they  do  not  constitute  any  part 
of  the  judgment  roll  (Sutton  v.  Stephan, 
101  Cal.  545;  36  Pac.  100);  nor  do  the 
notice,  aflfidavit,  and  motion  on  which  an 
order  striking  out  a  demurrer  was  maile, 
in  the  absence  of  a  bill  of  exceptions,  con- 
stitute part  of  the  judgment  roll  (Orange 
Growers'  Bank  v.  Duncan,  133  Cal.  254; 
65  Pac.  469;  Dimick  v.  Campbell,  31  Cal. 
238;  Catanich  v.  Hayes,  52  Cal.  338);  nor 
do  notices,  not  embraced  in  the  statement 
or  bill  of  exceptions.  Girdner  v.  Beswick, 
69  Cal.  112;  10  Pac.  278. 

AflBdavits  must  be  authenticated.  On 
appeal  from  an  order  heard  upon  aflfidavits, 
the  only  proper  method  of  authenticating 
the  affidavits  is  bv  bill  of  exceptions. 
Herrlich  v.  McDonald,  80  Cal.  472;  22  Pac. 
299;  Somers  v.  Somers,  81  Cal.  608;  22 
Pac.  967.  Affidavits  and  other  documen- 
tary matter,  used  on  a  motion  to  set  aside 
a  default  not  embodied  in  the  bill  of  ex- 
ceptions, nor  identified  with  or  made  a 
;part   of   the  record,   cannot   be   considered 


on  appeal.  La  Fetra  v.  Gleason,  101  Cal. 
216;  35  Pac.  765.  .Xn  affidavit,  not  in- 
cluded in  the  bill  of  exceptions,  and  cer- 
tified merely  by  the  clerk,  cannot  be 
considered  on  a]>iieal.  People  v.  Gay,  141 
Cal.  41;  74  Pac.  443.  Affidavits  and"  other 
jiapers  used  on  the  hearing  of  a  motion 
must  be  authenticated  by  including  the 
same  in  a  bill  of  exceptions,  except  where 
another  mode  of  authentication  is  jirovided 
by  law.  Estate  of  Dean,  149  Cal.  4S7;  87 
Pac.  13.  Affidavits  or  other  evidence, 
taken  on  the  hearing  of  a  motion  for  a 
new  trial,  should  be  incori)orated  in  a  bill 
of  exceptions;  otherwise  there  can  be  no 
review  on  apjieal.  Pereira  v.  Citv  Savings 
Bank,  128  Cal.  45;  60  Pac.  524.'  An  affi- 
davit, certified  by  the  clerk  as  having  l)eeu 
used  on  a  motion  to  vacate  a  judgment, 
forms  no  part  of  the  record  on  appeal, 
where  it  is  not  contained  in  any  bill  of 
exceptions  (People  v.  Wrin,  143  Cal.  11; 
76  Pac.  046) ;  nor  an  affidavit  showing 
surprise,  by  reason  of  w^hich  certain  tes- 
timony was  not  introduced  at  the  trial, 
which  was  not  contained  in  any  bill  of 
exceptions,  nor  authenticated  as  having 
been  used  at  the  hearing  of  the  motion 
for  a  new  trial,  except  by  the  certificate 
of  the  clerk  (Cohen  v.  Alameila,  124  Cal. 
504;  57  I'ac.  377);  nor  an  affidavit  of  al- 
leged misconduct  of  the  jury,  not  incor- 
porated in  the  bill  of  exceptions  (Cahill 
V.  Baird,  138  Cal.  691;  72  Pac.  342);  nor 
an  affidavit  used  on  a  motion  for  a  new 
trial,  not  authenticated  by  being  incor- 
porated in  the  bill  of  exceptions,  and  thus 
not  a  ])art  of  the  record  (Skinner  v.  Horn, 
144  Cal.  278;  77  Pac.  904;  and  see  Von 
Glahn  v.  Brennan,  81  Cal.  261;  22  Pac. 
596;  Spreckels  v.  Spreckels,  114  Cal.  00;  45 
Pac.  1022;  Melde  v.  Reynolds,  120  Cal.  234; 
52  Pac.  491;  Esert  v.  Clock,  137  Cal. 
533;  70  Pac.  479;  Cahill  v.  Baird,  138  Cal. 
691;  72  Pac.  342);  nor  affidavits  embodied 
in  the  record,  and  marked  as  filed  by  the 
clerk,  but  not  contained  in  nor  forming 
part  of  the  bill  of  exceptions  and  state- 
ment certified  by  the  judge,  nor  identified 
by  him  as  having  been  used  on  the  motion. 
Fish  v.  Benson,  71  Cal.  428;  12  Pac.  454; 
AVhipple  v.  Hopkins,  119  Cal.  349;  51  Pac. 
535.  Where  the  appellant  did  not  propose 
any  bill  of  exceptions,  and  the  respondent, 
having  no  occasion  or  right  to  propose  a 
bill,  the  decision  on  the  motion  having 
been  in  his  favor,  the  appellant  cannot  be 
aided  by  these  facts  to  have  such  affidavits 
considered,  where  they  were  not  incorpo- 
rated in  the  bill  of  exceptions.  Skinner  v. 
Horn,  144  Cal.  278;  77  Pac.  904.  A  cer- 
tificate of  the  judge,  authenticating  cer- 
tain affidavits  as  having  been  used  upon 
the  hearing  of  the  motion,  without  show- 
ing that  these  were  all  the  pajiers  used  at 
the  hearintr,  is  insufficient.  iNIelde  v.  Rey- 
nolils,  120' Cal.  234;  52  Pac.  491;  Pereira 
V.  City  Savings  Bank,  12S  Cal.  45;  60  Pac. 


5  661 


NEW    TRIALS. 


755 


524-    Shain   v.   Eikerenkotter,   88   Cal.    13; 
25Pac.  966. 

Presumption  as  to  affidavits.  Where  the 
grounds  of  the  motion,  and  what  was 
based  thereon,  do  not  appear  in  the  record, 
it  will  be  conclusively  presumed,  in  favor 
of  the  order,  that  the  motion  was  in 
part  based  on  some  ground  on  which  the 
affidavits  could  be  used,  and  that  such 
affidavits  were  in  fact  used,  and  were  suffi- 
cient to  iustifv  the  order.  Wvckoff  v. 
Pajaro  A^a'lley  etc.  E.  E.  Co.,  146Y'al.  681; 
SlPae.  17;  Skinner  v.  Horn,  144  Cal.  278; 
77Pae.  904. 

Bill  of  exceptions  necessary  when.  The 
allowance  of  costs,  being  within  the  dis- 
cretion of  the  court  in  a  suit  in  equity, 
cannot  be  reviewed  without  a  statement 
or  bill  of  exceptions  (Faulkner  v.  Hendy, 
103  Cal.  15;  36  Pac.  1021);  nor  can  the 
question  of  costs  be  considered,  where 
there  is  no  bill  of  exceptions  showing  any 
ruling  thereon.  People  v.  Marin  County, 
103  Cal.  223;  26  L.  E.  A.  6.59;  37  Pac.  203. 
An  appeal  from  an  order  refusing  to  settle 
a  bill  of  exceptions,  assuming  such  order 
to  be  appealable,  must  be  disregarded,  in 
the  absence  of  a  bill  of  exceptions.  Wil- 
liamson V.  .Joyce,  137  Cal.  151;  69  Pac.  980. 
Error  in  allowing  a  cross-complaint  to  be 
filed  cannot  be  considered,  where  there  is 
no  bill  of  exceptions  saving  and^  present- 
ing that  point.  Bell  v.  Southern  Pacific 
E.  E.  Co.,  144  Cal.  560;  77  Pac.  1124.  Error 
in  denying  a  motion  for  a  new  trial,  with- 
out hearing  or  considering  the  grounds 
presented  and  urged  in  support  thereof, 
should  be  excepted  to  at  the  time,  and  the 
facts  embodied  and  settled  in  a  bill  of  ex- 
ceptions. Williams  v.  Harter,  121  Cal.  47; 
53  Pac.  405.  Error  in  making  a  second 
order  for  judgment,  without  setting  aside 
or  modifying  the  first,  cannot  be  consid- 
ered on  appeal  from  the  judgment,  on  the 
judgment  roll  alone,  but  should  be  pre- 
sented on  a  bill  of  exceptions.  Eooney  v. 
Gray,  145  Cal.  753;  79  Pac.  523;  and  see 
Paige  V.  Eoeding,  96  Cal.  388;  31  Pac.  264; 
Von  Schmidt  v.  Von  Schmidt,  104  Cal. 
547;  38  Pac.  361.  Error  in  rejecting  bal- 
lots, because  not  marked  as  required  by 
law,  cannot  be  considered  on  appeal,  un- 
less the  original  ballots,  or  facsimile 
copies  thereof,  authenticated  and  identi- 
fied, and  properly  referred  to  in  the  bill 
of  exceptions,  accompany  the  record.  Lay 
v.  Parsons,  104  Cal.  661;  38  Pac.  447. 
Errors  of  law,  committed  at  the  trial,  will 
not  be  consiilered  on  appeal,  in  the  ab- 
sence of  a  bill  of  exceptions.  Pereira  V. 
City  Savings  Bank,  12>,  Cal.  45;  60  Pac. 
524;  Williams  V.  Savings  and  Loan  Society, 
133  Cal.  360;  65  Pac.  822;  Thompson  v. 
Patterson,  54  Cal.  542.  Failure  to  find 
on  an  issue  is  not  ground  for  reversing 
a  judgment  otherwise  correct,  unless  it 
appears  by  the  statement  or  bill  of  ex- 
ceptions that  evidence  was  given  on  such 


issue.  Kaiser  v.  Dalto,  140  Cal.  167;  73 
Pac.  828;  Himmelman  v.  Henry,  84  Cal. 
104;  23  Pac.  1098.  Findings  of  fact  must 
be  taken  as  absolutely  true,  where  there 
is  no  bill  of  exceptions  showing  the  evi- 
dence, and  it  will  be  presumed  that  the 
evidence  necessary  to  sustain  the  findings 
was  presented  to  the  court  below.  Mock 
V.  Santa  Eosa,  126  Cal.  330;  58  Pac.  326; 
Williams  v.  Savings  and  Loan  Society, 
133  Cal.  360;  65  Pac.  822;  Alexander  v. 
Weleker,  141  Cal.  302;  74  Pac.  845;  Estate 
of  Brown,  143  Cal.  450;  77  Pac.  160;  Cas- 
tagnetto  v.  Coppertown  Mining  etc.  Co., 
146  Cal.  329;  SO  Pac.  74;  Mahoney  v. 
American  Land  etc.  Co.,  2  Cal.  App.  185; 
83  Pac.  267;  Estate  of  Smith,  4  CaL 
Unrep.  919;  38  Pac.  950.  Further  instruc- 
tions, constituting  error  at  law  occurring 
at  the  trial,  should  have  been  excepted 
to,  and  embodied  in  the  bill  of  exceptions, 
provided  for  in  §  650,  ante:  they  cannot 
be  embodied  in  an  affidavit,  or  in  another 
bill  of  exceptions,  after  the  motion  for  a 
new  trial  is  denied.  Southern  Pacific  E.  E. 
Co.  V.  Superior  Court,  105  Cal.  84;  38  Pac. 
627.  An  order  sustaining  a  motion  to  set 
aside  a  judgment  cannot  be  considered  on 
appeal,  where  there  is  no  bill  of  excep- 
tions; for,  whether  the  party  excepted  to 
the  decision  of  the  court  in  person  at  the 
time  the  decision  was  made,  or  is  deemed 
in  law  to  have  excepted,  he  must,  within 
the  statutory  or  a  reasonable  time  after 
his  exception,  avail  himself  of  the  right 
to  reduce  the  same  to  writing,  and  take 
the  steps  required  by  law  to  have  the  bill 
of  exceptions  settled  and  signed  by  the 
judge.  Nash  v.  Harris,  57  Cal.  242.  Where 
there  is  no  notice  of  intention  to  move 
for  a  new  trial,  that  fact  must  be  affirma- 
tively shown,  and  must  be  included  in  a 
proper  statement  or  bill  of  exceptions. 
Kahn  v.  Wilson,  120  Cal.  643;  53  Pac.  24. 
Papers  used  and  evidence  taken  at  the 
hearing  of  a  motion  to  set  aside  service 
of  summons  by  publication,  must  be  au- 
thenticated by  incorporating  them  in  the 
bill  of  exceptions.  San  Diego  Sav.  Bank 
V.  Goodsell,  137  Cal.  420;  70  Pac.  299. 

Contents  of  bill  of  exceptions.  A  bill 
of  exceptions  cannot  contain  an  order 
made  after  the  bill  was  settled  and  au- 
thenticated. Mendocino  County  v.  Peters, 
2  Cal.  App.  24;  82  Pac.  1122."  On  appeal 
from  an  order  denying  a  motion  to  vacate 
a  judgment,  it  devolves  upon  the  appellant 
to  have  settled  a  bill  of  exceptions  show- 
ing the  evidence  taken  upon  the  hearing 
of  such  motion.  Estate  of  Dean,  149  Cal. 
487;  87  Pac.  13.  Under  §  952,  post,  the 
appellant,  on  an  appeal  from  an  order 
granting  or  refusing  a  new  trial,  must  fur- 
nish the  court  with  a  copy  of  the  notice 
of  appeal,  of  the  order  appealed  from, 
and  of  the  papers  designated  in  §661; 
and  these  copies,  by  the  provision  of  §  953, 
post,  must  be  certified  to  be  correct  by  the 


757 


AMENDMENT   OF    BILL — STATEMENT,    CONTENTS,    ETC.,    OP. 


§661 


<*lerk  or  the  .ittornoys:  thore  is  no  ocoa- 
sion  for  iiicoriioratiiiu:,  in  a  hill  of  ('xcoj)- 
tions,  the  papers  constitutiiitj  the  .iudsmciit 
roll  or  the  order  denyiii};  the  motion  for  a 
new  trial.  Instate  of  Killu.rn.  KJi'  Tal.  4; 
]20  Pac.  7G2.  Where  the  iiotiee  of  motion 
■states  that  it  was  to  he  made  on  the  min- 
utes of  the  court,  but  it  contains  no  speci- 
fication of  the  insufficiency  of  the  evidence, 
the  motion  must  be  denied,  and  it  is  not 
necessary  to  insert  any  evidence  in  the 
hill  of  exceptions  settled  after  the  order 
Krantinjj  the  motion.  Kstate  of  Cahill,  74 
■Cal.  :V2:  1.1  Pac.  ;'.(;4. 

Amendment  of  bill  of  exceptions.  The 
"bill  of  exceptions  cannot  be  amended  by 
■way  of  diminution  of  the  record,  since  a 
record  authenticated  by  the  trial  court 
<?annot  be  changed  on  a])peal.  Mendocino 
€ounty  v.  Peters,  2  Cal.  Ai)p.  21;  82  Pac. 
1122;  and  see  Bonds  v.  Hichman,  29  Cal. 
460;  Boston  v.  Havhes,  .31  Cal.  107;  Satter- 
lee  V.  Bliss,  .36  Cal.  489;  Bovd  v.  Burrel, 
■60  Cal.  280;  Estate  of  Lamb,"  9.5  Cal.  397; 
30  Pac.  .168. 

Necessity  for  statement  on  appeal.  An 
order  juranting  a  motion  for  a  new  trial, 
made  on  the  minutes  of  the  court,  cannot 
be  considered  on  appeal,  where  no  state- 
ment was  subsequently  prejjared  (Oakland 
Gaslioht  Co.  v.  Dameron,  .j7  Cal.  292);  nor 
can  an  order  denying  and  dismissing  the 
motion  be  considered.  Davis  v.  llurgren, 
125  Cal.  48;  5(;,Pac.  684.  Where  no  errors 
and  particulars  are  specified  in  the  notice 
of  intention  to  move  for  a  new  trial  on  the 
minutes  of  the  court,  no  subsequent  state- 
ment of  the  case  is  required  or  authorized. 
Buckley  v.  Althorf,  86  Cal.  643;  25  Pac. 
134. 

Statement  sufficient  when.  A  statement, 
prepared,  settled,  authenticated  by  the 
judge,  and  filed  in  due  time,  will  be  pre- 
sumed to  have  been  used  on  the  hearing 
of  the  motion,  and  hence  is  suflficient.  Wil- 
liams V.  Southern  Pacific  R.  R.  Co.,  2  Cal. 
ITnrep.  613;  9  Pac.  152.  A  statement, 
which  has  never  been  settled,  cannot  be 
used  on  the  hearing  of  a  motion  for  a  new 
trial.  Mitchell  v.  Croake,  20  Cal.  Apj).  643; 
129  Pac.  946.  The  better  jiractice  is  to  in- 
corjtorate  in  the  settled  statement  a  show- 
ing, in  terms,  that  application  for  relief 
from  default  was  maile,  and  that  the  court 
granted  the  same;  but  it  is  enough  if  this 
substantiallv  appears.  King  v.  Dugan,  150 
Cal.  258;  88  Pac.  925. 

Contents  and  settlement  of  statement  on 
appeal.  The  statement,  whetluM-  inaile  on 
motion  for  a  new  trial,  or  after  motion 
made  on  the  minutes  of  the  court,  need 
not  embody  the  notice  of  the  motion  or  its 
I'ontents;  and  the  presumption  on  appeal 
in  either  case  is,  that  the  notice  was  duly 
given,  and  that  the  specifications  in  the 
statement  conform  to  those  in  the  notice; 
and  the  requirement  of  this  section,  that 
the     statement     shall     contain     only     the 


grounds  argued  before  the  court  for  a  new 
trial,  refers  to  8[>ecification3  of  the  grounds 
mentioned  in  the  fourth  subdivision  of 
§  659,  ante,  or  such  of  them  as  are  in  fact 
argued;  and  when  the  specifications  are 
set  out  in  the  statement,  it  will  be  pre- 
sumed that  they  were  contained  in  the 
notice,  and  were  in  fact  argued.  Schneider 
V.  Market  Street  Ry.  Co.,  134  Cal.  482; 
66  Pac.  734.  In  stating  the  specifications 
of  errors  and  objections  in  the  statement 
to  be  made  after  the  hearing  of  the  mo- 
tion, the  better  practice  is  to  make  a 
formal  statement  of  the  causes  relied  on 
and  argued  at  the  hearing,  and  not  merely 
to  insert  a  copy  of  the  notice  of  the  mo- 
tion containing  such  statement,  as  it  is 
only  the  formal  objection  stated  in  the 
notice  and  argue<l  at  the  hearing  of  the 
motion  that  is  entitled  to  be  included  in 
the  statement.  Leonard  v.  Shaw,  114  ('al. 
69;  45  Pac.  1012.  Where  the  statement, 
made  after  the  motion  was  decided,  con- 
tains no  copy  of  the  notice  of  the  motion 
or  its  specifications,  and  no  copy  of  the 
motion  itself,  and  no  specification  of  er- 
rors, it  is  insufficient,  and  the  order  deny- 
ing the  motion  will  not  be  reviewed  on 
appeal.  Si)rigg  v.  Barber,  122  Cal.  573; 
55  Pac.  419;  and  see  Kent  v.  Williams.  146 
Cal.  3;  79  Pac.  572.  A  specification  of  the 
errors  and  objections  in  the  statement 
to  be  made  after  the  hearing  on  the  mo- 
tion, is  not  obviated  by  the  fact  that  the 
notice  is  required  to  state  the  particular 
errors  and  objections  relied  upon.  Leonard 
V.  Shaw,  114  Cal.  69;  45  Pac.  1012.  Where 
the  motion  is  based  on  the  minutes  of  the 
court,  and  the  moving  party  relies  on  the 
recollection  of  the  judge  as  to  the  evidence 
and  ])roceedings,  he  can  thereafter  secure 
a  statement  of  the  case,  including  the  evi- 
dence material  to  the  motion,  for  the  pur- 
poses of  an  appeal  from  the  order  made 
on  the  motion,  and  mandamus  lies  to  com- 
pel the  settlement  of  such  statement.  Mal- 
colmson  v.  Harris,  90  Cal.  262;  27  Pac. 
206.  Where  a  document,  purporting  to  be 
a  statement  made  subsequently  to  the  mo- 
tion, though  signed  by  the  attorneys  and 
filed  with  the  clerk,  does  not  ajipear  to 
have  been  settled  or  authenticated  by  the 
judge,  and  does  not  contain  any  specifica- 
tions of  error,  or  purport  to  show  what 
grounds  were  argued  before  the  court  on 
the  motion,  the  order  denying  the  new 
trial  is  not  a  subject  of  review.  Kent  v. 
Williams,  146  Cal.  3;  79  Pac.  527.  A 
statement  in  the  transcript,  purporting  to 
be  minutes  of  the  court,  showing  that  the 
motion  for  a  new  trial  was  granteil  on  the 
ground  stated  in  the  notice,  authenticated 
only  by  the  clerk's  certificate,  cannot  be 
considered  on  appeal.  Sprigg  v.  Barber, 
122  Cal.  573;  55  Pac.  419;  Kent  v.  Wil- 
liams, 146  Cal.  3;  79  Pac.  527.  A  bill  of 
exceptions  in  the  record,  in  which  the  in- 
sufficiency of  the  evidence  to  sustain  the 


§661 


NEW    TRIALS. 


758- 


findings  is  specified,  may  be  treated  as  a 
statement  of  the  case.  Dennis  v.  Gordon, 
163  Cal.  427;  125  Pac.  1063. 

Time  to  prepare  statement.  The  service 
of  notice  of  the  making  of  an  order  deny- 
ing a  new  trial  is  not  necessary;  hence, 
the  time  in  which  to  prejiare  the  statement 
begins  to  run  from  the  making  of  the 
order.  Vinson  v.  Los  Angeles  Pacific  R.  R. 
Co.,  147  Cal.  479;  82  Pac.  53. 

Service  of  statement.  The  statute  does 
not,  in  terms,  require  an  order  extending 
the  time  within  which  to  i)ropose  and  serve 
a  statement  of  the  case  to  be  filed,  but  the 
better  practice  is  to  file  it.  Dennis  v. 
Crocker-Huffman  Land  etc.  Co.,  6  Cal.  App. 
5S;  91  Pac.  425.  Where  a  statement,  made 
subsequently  to  the  order  denying  the 
motion,  is  not  served  until  after  the  ex- 
piration of  the  last  extension  of  time,  there 
is  no  statement  which  the  court  can  be 
called  upon  to  settle,  or  which  can  be 
used  on  appeal.  Buckley  v.  Althorf,  86 
Cal.  643;  25  Pac.  134.  The  court  may  set- 
tle the  statement  after  the  statutory  period 
has  expired,  where  the  failure  to  file  an 
order  extending  time  for  the  proposal  and 
service  of  the  statement  was  due  to  the 
inadvertence  of  the  judge.  Dennis  v. 
Crocker-Huffman  Land  etc.  Co.,  6  Cal.  App. 
58;  91  Pac.  425. 

Latter  of  two  judgments  is  final.  Where 
two  judgments  have  been  entered  in  a 
cause,  and  the  record  is  silent  as  to  the 
reason  therefor,  the  latter  in  point  of  time 
must  be  deemed  the  true  and  final  judg- 
ment. Galvin  v.  Palmer,  134  Cal.  426;  66 
Pac.  572. 

Appeal  from  judgment.  An  appeal  from 
the  judgment,  and  from  an  order  denying 
a  new  trial,  where  the  record  shows  that 
the  bill  of  exceptions  used  on  the  motion 
was  not  prepared  and  served  in  time,  and 
shows  no  relief  from  the  default,  the  bill 
cannot  be  considered  on  either  appeal. 
Johnson  v.  German  American  Ins.  Co.,  150 
Cal.  336;  88  Pac.  985.  Where  the  appeal 
is  from  the  judgment,  on  the  judgment 
roll,  without  any  bill  of  exceptions,  the 
appellant  necessarily  admits  that  there 
are  no  errors  in  the  admission  or  rejection 
of  evidence,  and  that  the  evidence  sustains 
the  findings.  Mock  v.  Santa  Rosa,  126  Cal. 
330;  58  Pac.  326;  and  see  Poledori  v.  New- 
man. 116  Cal.  375;  48  Pac.  325.  A  bill 
of  exceittions,  settled  to  be  used  on  motion 
for  a  new  trial,  is  "used"  on  the  motion, 
within  the  meaning  of  the  law  as  to  the 
"use"  thereof  on  appeal  from  the  judg- 
ment. Boin  v.  Spreckels  Sugar  Co.,  155 
Cal.  G12;  102  Pac.  937. 

Order  authenticated  how.  The  authenti- 
cation of  an  or<ler  dissolving  an  attach- 
ment should  be  by  a  bill  of  exceptions. 
Smith  v.  Jorrian,  122  Cal.  68;  54  Pac.  368. 
A  certificate  reciting  that  a  true  and  cor- 
rect copy  of  the  order  refusing  a  new 
trial    is    contained    in    the    transcript,    to 


which  it  is  attached,  is  sufficient  as  an  au- 
thentication. Mendocino  County  v.  Peters,. 
2  Cal.  App.  24;  82  Pac.  1122.  ' 

Record  on  appeal.  A  record  on  appeal 
from  an  order  refusing  a  new  trial,  con- 
taining the  judgment  roll,  the  bill  of 
exceptions,  and  a  copy  of  the  order,  is 
sufficient.  Mendocino  County  v.  Peters.  2 
Cal.  App.  24;  82  Pac.  1122.  When  a  mo- 
tion for  a  new  trial  is  made  upon  the- 
ground  of  newly  discovered  evidence,  the 
affidavits  used  on  the  hearing,  with  a  copy 
of  the  order  made,  constitute  the  record 
to  be  used  on  appeal  from  the  order  grant- 
ing or  refusing  a  new  trial.  Schroeder 
V.  Mauzy,  16  Cal.  App.  443;  118  Pac.  459. 
An  affidavit,  not  shown  to  have  been  used, 
on  the  motion,  cannot  be  considered  a. 
part  of  the  record  on  appeal  (Broads  v. 
Mead,  159  Cal.  765;  Ann.  Cas.  1912C,  1125; 
116  Pac.  46);  nor  an  unauthenticated  affi- 
davit (Estate  of  Dean,  149  Cal.  487;  87 
Pac.  13);  nor  an  affidavit  made  subse- 
quently to  the  denial  of  the  motion  (Wil- 
liams V.  Harter,  121  Cal.  47;  53  Pac.  405);. 
nor  an  affidavit  used  on  the  hearing  of  the 
motion,  merely  certified  by  the  clerk 
(Melde  v.  Reynolds,  120  Cal.  234;  52  Pac. 
491);  nor  an  unauthenticated  paper  in  the 
transcript,  in  which  there  is  no  bill  of  ex- 
ceptions (Nash  v.  Harris,  57  Cal.  242); 
nor  the  opinion  of  the  trial  judge  in  mak- 
ing an  order  granting  a  new  trial,  though, 
printed  in  the  transcript.  Bouchard  v.. 
Abrahamsen,  4  Cal.  App.  430;  88  Pac.  383. 
A  bill  of  exceptions,  settled  after  an  order 
granting  or  refusing  a  new  trial,  except 
where  the  order  was  made  on  the  minutes 
of  the  court,  or  was  made  of  the  court's 
own  motion,  is  no  part  of  the  record  on 
appeal.  Frost  v.  Los  Angeles  Ry.  Co.,  165 
Cal.  365;  132  Pac.  442.  A  notice  of  motion 
for  relief  from  the  effect  of  failing  to 
serve  a  proposed  statement  on  motion  for 
a  new  trial  in  time,  and  a  minute-order 
granting  said  motion,  printed  in  the  tran- 
script, but  not  embodied  in  the  statement 
or  bill  of  exceptions,  is  no  part  of  the 
record  on  appeal.  King  v.  Dugan,  150  Cal. 
258;  88  Pac.  925. 

Record  on  appeal  from  motion  on  min- 
utes. Where  an  appeal  is  taken  from  an 
order  granting  or  refusing  a  new  trial,, 
on  the  minutes  of  the  court,  a  statement, 
prepared  suljeequently  to  such  ruling,  with 
the  judgment  roll  and  a  cop.y  of  the  order,, 
constitute  the  papers  on  which  the  appeal 
is  to  be  heard;  and  a  transcript  of  these 
papers  is  furnished  to  the  appellate  court, 
only  in  case  of  appeal  from  such  orders. 
Emeric  v.  Alvarado,  64  Cal.  529;  2  Pac 
418.  Where  the  record  on  appeal  from  an 
order  denying  a  new  trial  shows  that  the 
statement,  which  contains  no  copy  of  the 
notice  of  intention,  was  settled  and  filed 
subsequently  to  the  date  on  which  the 
order  was  made,  it  must  be  inferred  that 
the   motion   was   made   on   the   minutes   of 


759 


NOTICE   OF   INTENTION — INQUIRY    ON    APPEAL. 


§661 


tho  court,  r.lond  v.  La  Pon^na  Tvaud  etc. 
Co..  150  C'al.  7(!l-  v;)  I'a,..  kido. 

Notice  of  intention  to  move  for  new 
trial  no  part  of  record.  A  notice  of  in- 
tention to  ino\e  for  a  now  trial  is  no  part 
of  tho  record  on  aj)pcal  (Hook  v.  Hall.  68 
Cal.  22;  S  Pac.  .j9G;  Doniinfjiucz  v.  Mas- 
cotti,  74  Cal.  209;  15  Pac.  773;  Pico  v. 
Cohn,  7S  Cal.  384;  20  Pac.  706;  Richard- 
son V.  Eureka,  02  Cal.  64;  2S  Pac.  102; 
Reclamation  District  v.  Thisl«v,  131  Cal. 
572;  63  Pac.  9T>;  Williams  v.  Ilawley,  144 
Cal.  97;  77  Pac.  762;  Power  v.  Fairbanks, 
146  Cal.  611;  80  Pac.  1075);  and  a  notice 
of  intention,  not  embodied  in  the  state- 
ment or  bill  of  exceptions,  and  not  cer- 
tified in  any  way,  cannot  be  considered  on 
appeal:  it  is  no  part  of  the  record  on 
ajipeal  (Leonard  v.  Shaw,  114  Cal.  69;  45 
Pac.  1012;  Williams  v.  Hawlev,  144  Cal. 
97;  77  Pac.  762;  Hook  v.  Hall,  68  Cal. 
22;  8  Pac.  596;  Girdner  v.  Beswick,  69 
Cal.  112;  10  Pac.  278;  Dominguez  v.  Mas- 
cotti,  74  Cal.  269;  15  Pac.  773;  Dennis 
V.  Gordon,  163  Cal.  427;  125  Pac.  1063; 
Carver  v.  San  Joaquin  Cigar  Co.,  16  Cal. 
App.  761;  118  Pac.  92);  nor  is  a  notice  of 
intention,  improperly  inserted  in  the  record 
after  the  statement,  a  part  of  the  record. 
Nve  V.  Marysville  etc.  Street  Ey.  Co.,  97 
Cal.  461;  32  Pac.  .530".  The  notice  of  in- 
tention need  not  be  incorporated  in  the 
statement  or  bill  of  exceptions  (Pico  v. 
Cohn.  78  Cal.  384;  20  Pac.  700;  Southern 
Pacific  E.  R.  Co.  v.  Superior  Court,  105 
Cal.  84;  38  Pac.  627;  Eeclamation  District 
V.  Thisby.  131  Cal.  52;  63  Pac.  918),  unless 
the  opi)osite  party  insists  that  it  is  in- 
sufficient (Southern  Pacific  R.  R.  Co.  v. 
Superior  Court,  105  Cal.  84;  38  Pac.  027); 
but  it  is  essential  for  the  jiurpose  of  re- 
viewing the  action  of  the  trial  court  on 
motion  for  a  new  trial,  that  it  should  ap- 
pear by  the  record  that  the  ground  for  a 
new  trial  presented  on  appeal  was  pre- 
sented by  the  motion  in  the  lower  court. 
Great  Western  Gold  Co.  v.  Chambers,  153 
Cal.  307;  95  Pac.  151.  A  notice  of  inten- 
tion, not  authenticated,  and  based  on  the 
minutes  of  the  court,  the  record,  and  the 
evidence,  without  any  statement  or  speci- 
fications of  error  in  the  minutes,  cannot 
be  considered  on  appeal.  Sprigg  v.  Barber, 
122  Cal.  573;  55  Pac.  419. 

Changing  record.  While  an  order  deny- 
ing a  new  trial  is  in  force,  the  record  upon 
which  it  is  based  cannot  be  changed.  Mer- 
ced Bank  v.  Price,  152  Cal.  697;  93  Pac. 
860. 

Scope  of  inquiry  on  appeal.  The  scope 
of  inquiry,  on  appeal  from  an  order  deny- 
ing a  new  trial,  is  limited  to  the  order 
appealed  from,  the  judgment  roll,  and  the 
affidavits  or  bill  of  exceptions  or  state- 
ment used  on  the  hearing  (Emeric  v.  Al- 
varado,  64  Cal.  529;  2  Pac.  418);  and  if 
a  question  is  presented  by  specifications 
of  errors  of  law  and  of  insufficiency  of  the 


evidence,  anil  is  properly  saved  in  the  state- 
ment or  bill  of  exceptions,  the  appellate 
court  will  presume  that  it  was  properly 
presented  to  the  court,  and  passed  ujtou 
in  its  ruling.  Pico  v.  Cohn,  78  Cal.  384; 
20  Pac.  706;  Richardson  v.  Eureka,  92  Cal. 
64;  28  Pac.  102.  An  order  denying  a  mo- 
tion for  a  nonsuit,  finclings  allegcij  as  not 
Bujiported  by  the  evidence,  and  alleged 
errors  of  law  occurring  at  tho  trial,  can 
be  reviewed  only  on  a  jiroperly  authenti- 
cated statement  or  bill  of  exceptions. 
WMieeler  v.  Karnes,  125  Cal.  51;  57  I^ac. 
893.  Where  the  notice  of  intention  stated 
that  the  motion  would  be  made  on  a  bill 
of  exceptions,  but  none  was  presented  to 
the  trial  court  or  to  the  court  on  appeal, 
neither  court  can  review  the  case  as  to 
alleged  errors  of  law  or  as  to  the  insuflfi- 
ciency  of  the  evidence.  Pereira  v.  City 
Savings  Bank,  128  Cal.  45;  60  Pac.  524; 
Larkin  v.  Larkin,  76  Cal.  323;  18  Pac.  396. 
The  appellate  court  is  not  restricted  to  an 
examination  of  the  grounds  upon  which  an 
order  granting  a  new  trial  is  based,  but 
will  examine  the  record  to  ascertain  any 
other  grounds  (Thompson  v.  California 
Construction  Co.,  148  Cal.  35;  82  Pac.  367; 
Houghton  v.  Market  Street  Rv.  Co.,  1  Cal. 
App.  567;  82  Pac.  972;  Weisser  v.  South- 
ern Pacific  Co.,  148  Cal.  426;  83  Pac.  439; 
Martin  v.  Markarian,  1  Cal.  App.  687;  82 
Pac.  1072),  except  as  to  the  insuflSciency 
of  the  evidence,  where  it  is  conflicting 
(Thompson  v.  California  Construction  Co., 
148  Cal.  35;  82  Pac.  367);  and  where  the 
motion  is  made  on  several  grounds,  and  the 
record  does  not  disclose  for  which  one,  the 
order  will  not  be  reversed,  if  it  could  have 
been  granted  on  any  one  of  the  grounds 
(Tibbetts  v.  Bower,  121  Cal.  7;  53  Pac. 
359);  and  the  limitation  of  tho  order  to 
one  ground  precludes  the  defendant  from 
contending  that  it  may  have  been  granted 
on  another  ground  (McGinty  v.  Morgan, 
122  Cal.  103;  54  Pac.  392);  and  where  the 
motion  was  granted  on  a  specified  ground, 
the  insufficiency  of  the  evidence,  though 
specified  in  the  motion,  will  not  be  con- 
sidered on  appeal  (Siemsen  v.  Oakland  etc. 
Electric  Ey.,  134  Cal.  494;  60  Pac.  672; 
Kauffmann  v.  Maier,  94  Cal.  269;  18 
L.  R.  A.  124;  29  Pac.  481);  and  only  those 
matters  considered  by  the  court  on  the 
hearing  of  the  motion  can  be  considered. 
Marsteller  v.  Leavitt,  130  Cal.  149;  62  Pac. 
3S4;  Blood  v.  La  Serena  Land  etc.  Co.,  150 
Cal.  764;  89  Pac.  1090.  An  order,  properly 
granting  the  motion  on  any  one  of  the 
grounds  assigned,  will  not  be  disturbed  on 
appeal.  Mock  v.  Los  Angeles  Traction  Co., 
139  Cal.  616;  73  Pac.  455;  Swett  v.  Grav, 
141  Cal.  63;  74  Pac.  439;  Baldwin  v.  Napa 
etc.  Wine  Co.,  1  Cal.  App.  215;  81  Pac. 
1037.  The  reasons  given  by  the  court  for 
granting  the  motion  are  immaterial,  since 
they  may  be  bad,  and  yet  the  decision  cor- 
rect   for    other    reasons.     Power    v.    Fair- 


§  662  NEW   TRIALS. 

banks,  146  Cal.  611;  80  Pac.  1075;  Skinner 
T.  Horn,  144  Cal.  278;  77  Pac.  904.  Where 
there  is  no  bill  of  exceptions  or  statement 
in  the  record,  and  where  findings  are 
waived  by  failure  of  the  defendant  to 
appear  at  the  trial,  the  appeal  must  be 
determined  upon  the  judgment  roll  alone. 
Johnston  v.  Callahan,  146  Cal.  212;  79  Pac. 
870.  Where  the  motion  was  submitted  ou 
the  minutes  of  the  court,  no  matters,  other 
than  those  appearing  on  the  judgment  roll, 
by  bill  of  exceptions  or  statement  of  the 
case  subsequently  prepared,  can  be  con- 
sidered on  appeal  (Buckley  v.  Althorf,  86 
Cal.  643;  25  Pac.  134);  and  the  only  speci- 
fications of  insufficiency  of  the  evidence 
that  can  be  considered  are  those  embodied 
in  the  statement  or  bill  of  exceptions, 
which  are  presumably  the  only  ones  urged. 
Eoberts  v.  Hall,  147  Cal.  434;  82  Pac.  66. 

CODE  COMMISSIONERS'  NQTE.  Articles  I 
and  II  of  this  chapter  are  a  substitute  for  the 
provisions  of  our  old  Practice  Act  relating  to  ex- 
ceptions and  motions  for  new  trials.  For  all  the 
statements  and  counter-statemftits  and  compli- 
cated  machinery,    there    is    substituted    a    simple 

§  662.     [New  trial  on  court's  own 

Legislation  §  662.  1.  Added  by  Code  Amdts. 
1873-74,  p.  319. 

3.   Repealed  by  Stats.  1915,  p.  202. 

New  trial,  where  jury  disregard  instruc- 
tions or  evidence.  This  section  is  a  limita- 
tion upon  the  power  of  the  court  to  giant 
a  new  trial,  of  its  own  motion,  in  cases 
where  there  has  been:  1.  Such  a  plain 
disregard,  by  the  jury,  of  the  evidence,  as 
to  satisfy  the  court  that  the  verdict  was 
rendered  under  a  misapprehension,  or 
under  the  influence  of  passion  or  preju- 
dice; or  2.  That  there  was  such  a  plain 
disregard  of  the  instructions  as  to  satisfy 
the  court  that  the  verdict  was  so  rendered. 
Townley  v.  Adams,  118  Cal.  382;  50  Pac. 
550.  A  court  may,  of  its  own  motion, 
vacate  a  verdict,  where  there  has  been  a 
plain  and  palpable  disregard  of  either  the 
instructions  or  the  evidence.  Occidental 
Real  Estate  Co.  v.  Gantner,  7  Cal.  App. 
727;  95  Pac.  1042.  A  plain  disregard  of 
the  evidence  must  be  made  to  appear,  in 
order  to  justify  the  court  in  setting  aside 
a  verdict  of  its  own  motion;  and  the  rule 
applies  only  where  the  jury  plainly,  pal- 
pably, and  grossly  disregard  the  instruc- 
tions or  evidence.  Eades  v.  Trowbridge, 
143  Cal.  25;  76  Pac.  714;  Townley  v. 
Adams,  118  Cal.  382;  50  Pac.  550;  Mizener 
v.  Bradbury,  128  Cal.  340;  60  Pac.  928. 
A  verdict,  not  supported  by  the  evidence, 
and  contrary  to  the  instructions,  is  prop- 
erly set  aside.  Hynes  v.  Nelson,  5  Cal. 
Unrep.  741;  2  Pac.  36.  An  order  setting 
aside  a  verdict,  on  the  ground  that  it  is 
not  justified  by  the  evidence,  and  that  it 
is  against  the  law  and  the  evidence,  made 
by  the  court,  of  its  own  motion,  is  unau- 


760 


practice  by  bills  of  exception.  Under  the  old  sys- 
tem, nearly  one  third  of  the  time  of  sessions  o£ 
the  supreme  court  were  devoted  to  hearing  argu- 
ments addressed,  not  to  the  merits  of  the  case, 
but  as  to  whether  the  merits  were  before  the 
court.  We  now  have  in  our  reports  more  de- 
cisions on  points  of  practice,  relative  to  that  ques- 
tion, than  can  be  found  in  the  reports  of  the 
supreme  court  of  the  United  States  from  its 
organization.  By  allow^ing  an  exception  to  be 
taken  to  the  verdict  or  decision,  we  avoid,  in  eight 
cases  out  of  ten,  a  resort  to  a  motion  for  a  new 
trial,  and  allow  the  question  of  sufficiency  of  the 
evidence  to  come  directly  to  the  supreme  court 
as  a  question  of  law,  as  in  criminal  cases,  thus 
leaving  the  motion  for  new  trial,  in  most  cases, 
but  one  office  to  perform:  that  of  giving  the  court 
below  an  opportunity  to  review  its  own  decision. 
If  the  new  trial  is  moved  for,  then  the  papers 
used  at  the  hearing  are,  by  the  judge,  turned  into 
a  bill  of  exception,  and  constitute  the  only  rec- 
ord on  appeal  from  a  decision  granting  nr  refus- 
ing the  motion.  The  judge  must  decide  every 
cause  submitted  to  him  within  twenty  days  after 
its  submission.  Notice  of  filing  of  iindi'igs  is  dis- 
pensed with,  but  the  party  knows  tlint  they 
must  be  filed  within  twenty  days,  and  the  only 
diligence  he  is  put  to  is  to  inquire  at  the  end  of 
that  time,  for  if  the  findings  are  filed  thp  next 
day  after  the  cause  was  submitted,  he  will  still 
have  left  eleven  days  of  his  thirty  in  which  to 
move  for  a  new  trial. 


motion.     Repealed.] 

thorized  and  void.  Townley  v.  Adams,  118 
Cal.  382;  50  Pac.  550.  In  an  action  of 
unlawful  detainer,  the  court  may,  of  its 
own  motion,  set  aside  a  verdict  for  the 
defendant,  where  ten  months'  rent  was  un- 
paid, and  the  plaintiff  was  clearly  entitled 
to  a  verdict  for  the  possession  of  the  prem- 
ises and  for  the  whole  rent  due.  Occi- 
dental Real  Estate  Co.  v.  Gantner,  7  Cal. 
App.  727;  95  Pac.  1042. 

Judgment  for  costs.  A  judgment  may  be 
vacated,  under  this  section,  and  judgment 
entered  against  the  real  party  in  interest 
for  costs.  Townsend  v.  Parker,  21  Cal. 
App.  317;  131  Pac.  7G6. 

Grounds  for  action  of  court.  Where  the 
order  setting  aside  a  verdict  was  made  on 
a  formal  written  application,  and  the 
opinion  cf  the  court  shows  the  grounds 
on  which  it  acted,  it  will  not  be  presumed 
that  the  court  acted  on  other  and  different 
grounds.  Estate  of  Cahill,  74  Cal.  52;  15 
Pac.  364. 

Ees  adjudicata.  The  denial  of  a  motion, 
made  under  this  section,  is  not  res  adjudi- 
cata as  to  a  motion  for  a  new  trial  under 
§  657,  ante.  Anglo-Nevada  x\ssurance  Corp. 
v.  Ross,  123  Cal.  520;  56  Pac.  335. 

Appeal.  An  order  of  the  court,  setting 
aside  a  verdict,  of  its  own  motion,  is  the 
equivalent  of  an  order  granting  a  new 
trial,  and,  being  a  matter  within  the  legal 
discretion  of  the  court,  will  not  be  inter- 
fered with  on  appeal,  except  for  an  abuse 
of  discretion.  Hynes  v.  Nelson,  5  Cal. 
Unrep.  741;  2  Pac.  36.  An  apjDeal  on  the 
ground  that  trial  courts  have  no  authority 
to  set  aside  a  verdict  for  prejudice  of  the 
jury,  is  frivolous.    Foote  v.  Hayes,  4  CaJ. 


761 


VACATION   OF  JUDGMENT — INCON.-^ISTKXT   CONCLUSIONS. 


§663 


Unrep.  976;  39  Pac.  601.  Tho  recitals,  in 
a  settled  stateniont  on  apjieal,  of  the  ren- 
dering of  the  verdict,  and  of  the  vacating 
of  the  judgment  by  tho  court  on  its  own 
motion,  are  conclusive  of  such  facts.  Occi- 
dental Real  Estate  Co.  v.  Gantuer,  7  t'al. 
App.  727;  95  Pac.  1042. 

New  trial  must  be  by  jury.  Where  the 
findings  are  directly  contrary  to  the  ver- 
dict, there  is,  in  effect,  a  setting  aside  and 
vacating  of  the  verdict;  and  it  is  the  duty 
of  the  court  to  order  a  new  trial  by  jury: 
it  has  no   power  to   proceed   to   determine 


the   cause  witliout  a  jury.    Montgomery  v. 
Say  re,  91  Cal.  2()(j;  27  j'ac.  V,4H. 

Record  on  appeal  from  order  granting 
or  refusing  new  trial.    See  note  ante,  §  661. 

Power  of  court  to  grant  new  trial  of  Its  own 
motion.     S^e  note  14  ,\iin.  ('as.  65. 

Power  of  court  to  open  or  vacate  order  deter- 
mining motion  for  new  trial.  See  iiutc  Ann.  Cas. 
iy):'.H.  4s.-,. 

Inadequacy  of  damages  as  ground  for  setting 
aside  verdict.     .See  note  47  L.  R.  A.  .'i:i. 

Eight  of  court  to  grant  new  trial  on  its  own 
motion  or  on  grounds  other  than  those  urged  by 
the  moving  party.  See  note  40  L.  R.  A.  (N.  S.) 
291. 


§  663.  Vacation  of  judgTiieiit.  A  jiidgmont  or  decree  of  a  superior 
court,  when  based  upon  findings  of  fact  made  by  the  court,  or  the  special 
verdict  of  a  jury,  may,  upon  motion  of  the  party  aggrieved,  be  set  aside 
and  vacated  by  the  same  court,  and  another  and  different  judgment  en- 
tered, for  either  of  the  following  causes,  materially  affecting  the  substan- 
tial rights  of  such  party  and  entitling  him  to  a  different  judgment : 

1.  Incorrect  or  erroneous  conclusions  of  law  not  consistent  with  or  not 
supported  by  the  findings  of  fact;  and  in  such  case  when  the  judgment  is 
set  aside,  the  conclusions  of  law  shall  be  amended  and  corrected. 

2.  A  judgment  or  decree  not  consistent  with  or  not  supported  by  the 

Special  verdict. 

V.  Lacy,  121  Cal.  574;  54  Pac.  72;  Swift  v. 
Occidental  Mining  etc.  Co.,  141  Cal.  161; 
74  Pac.  700;  Sharp  v.  Bowie,  142  Cal.  462; 
76  Pac.  62);  and  to  vacate  that  part  of 
the  judgment  disallowing  costs,  and  to 
enter  judgment  for  costs.  Gibson  v.  Ham- 
mang,  145  Cal.  453;  78  Pac.  953.  A  ques- 
tion of  law,  as  to  whether  or  not  the 
judgment  is  the  correct  legal  conclusion 
from  the  facts  found,  may  be  raised  and 
determined  by  motion  in  the  court  below, 
under  this  section.  Fountain  Water  Co.  v. 
Dougherty,  134  Cal.  376;  6G  Pac.  316. 
Where  the  conclusion  that  the  plaintiff  ia 
entitled  to  judgment  is  in  conflict  with  the 
findings,  the  reinedy  is  not  by  a  new  trial 
of  an  issue  which  has  been  correctly  de- 
cided, but  by  a  motion  under  this  section, 
or  by  an  appeal  from  the  judgment.  Sharp 
v.  Bowie,  142  Cal.  462;  76  Pac.  62. 

Findings  cannot  be  changed.  A  motion 
to  amend  or  change  a  finding  of  fact  is 
not  authorized  under  our  practice.  Hole 
v.  Takekawa,  165  Cal.  372;  132  Pac.  445. 
The  trial  court  cannot,  on  a  motion  under 
this  section,  change  anv  finding  of  fact. 
Dahlberg  v.  Girsch,  157 'Cal.  324;  107  Pac. 
616. 

Result  of  failure  to  move.  A  party  does 
not  waive  his  objection  that  the  findings 
do  not  support  the  judgment,  by  a  failure 
to  proceed  by  motion  under  this  section 
and  §  663a,  post.  Worth  v.  Worth,  155  Cal. 
599;  102  Pac.  663. 

Substitution  of  proper  judgment.  This 
section  authorizes,  simply,  the  substitution 
of  the  proper  judgment  for  the  one  given. 


Legislation  §  663.  Added  by  Stats.  1S97, 
p.  58. 

The  original  §  663,  which  provided  when  mo- 
tions for  new  trial  might  be  brought  to  hearing, 
was  added  by  Code  Amdts.  1873—74,  p.  310;  was 
amended  by  Code  Amdts.  1877-78,  p.  100;  and 
was  repealed  by  Code  Amdts.   1880,  p.  64. 

Construction  of  section.  This  section 
authorizes,  simply,  the  substitution  of  the 
judgment  that  should  have  been  given  as 
a  matter  of  law  upon  the  findings  of  fact 
in  a  case  where  the  judgment  already 
given  is  an  incorrect  conclusion  from  such 
findings.  Dahlberg  v.  Girsch,  157  Cal.  324; 
107  Pac.  616. 

Procedure.  There  is  nothing  in  this  sec- 
tion, or  in  §  663a,  post,  that  indicates  that 
service  of  notice  of  intention  to  move  for 
a  new  trial,  and  of  the  other  steps  in  the 
preparation  of  a  bill  of  exceptions,  have 
been  dispensed  with;  in  this  respect,  there 
is  no  change  in  the  law.  Ford  v.  Braslan 
Seed  Growers  Co.,  10  Cal.  App.  762;  103 
Pac.  946. 

Judgment  or  conclusions  inconsistent 
■with  findings.  The  superior  court  has  ju- 
risdiction, on  motion,  to  vacate  a  judgment 
as  entered,  which  is  inconsistent  with  and 
not  supported  by  the  findings  of  fact,  and 
to  enter  a  proper  judgment  (Ballerino  v. 
Superior  Court,  2  Cal.  App.  759;  84  Pac. 
225;  Tyrrell  v.  Baldwin,  67  Cal.  1;  6  Pac. 
867;  Colton  Land  etc.  Co.  v.  Schwartz,  99 
Cal.  278;  33  Pac.  878;  Galvin  v.  Palmer, 
134  Cal.  426;  66  Pac.  572);  and  also  to  va- 
cate a  judgment,  where  the  conclusions  of 
law  are  incorrect  or  erroneous,  and  not 
consistent  with  the  findings  of  fact  (Shafer 


§663a 


NEW   TRIALS. 


762 


Dahlberg  v.  Girsch,  157  Cal.  324;  107  Pac. 
616.  On  motion  of  a  party  entitled  to 
judgment,  the  trial  court  has  jurisdiction 
to  vacate  an  improper  judgment,  and  to 
enter  the  proper  judgment.  Ballerino  v. 
Superior  Court,  2  Cal.  App.  759;  84  Pac. 
225. 

Appeal.  The  remedy  provided  by  this 
section  and  §  663a,  post,  is  merely  cumu- 
lative, and  is  not  designed  to  supersede 
the  remedy  bv  appeal  provided  in  §  963, 
post.  Patch  v.^Miller,  125  Cal.  240;  57  Pac. 
986;  Modoc  Co-operative  Ass'n  v.  Porter, 
11  Cal.  App.  270;  104  Pac.  710.  An  order 
denjang  a  motion  to  vacate  a  judgment 
under  this  section  and  §  663a,  is  one  made 
after  final  judgment,  and  is  appealable 
under  §  963,  post.  Taylor  v.  Darling,  19 
Cal.  App.  232;  125  Pac.  249;  Condon  v. 
Donohue,  160  Cal.  749;  118  Pac.  113;  Bond 
V.  United  Kailroads,  159  Cal.  270;  Ann. 
Cas.  1912C,  50;  113  Pac.  366.  The  ques- 
tion of  law,  whether  or  not  the  judgment 
is  the  correct  legal  conclusion  from  the 
facts  found,  may  be  raised  and  determined 
on  motion  made  under  this  section  and 
§  663a,  or  bv  appeal  from  the  judgment. 
Kaiser  v.  Dalto,  140  Cal.  167;  73  Pac.  828; 
Boggs   v.   Ganeard,   148   Cal.   711;   84  Pac. 


195;  Wutchumna  Water  Co.  v.  Eagle,  148 
Cal.  759;  84  Pac.  162;  Forsythe  v.  Los 
Angeles  Ey.  Co.,  149  Cal.  569;  87  Pac. 
24;  Elizalde  v.  Murphy,  11  Cal.  App.  32; 
103  Pac.  904.  The  pendency  of  a  motion, 
under  this  section,  to  vacate  and  change 
the  judgment  upon  the  findings  does  not 
excuse  a  failure  to  file  the  transcript  on 
appeal  within  time.  Modoc  Co-operative 
Ass'n  v.  Porter,  11  Cal.  App.  270;  104  Pac. 
710.  Upon  appeal  from  an  order  vacating 
a  judgment  on  the  findings,  the  review  is 
restricted  to  the  case  made  by  the  find- 
ings of  fact,  taken  in  the  light  of  the 
pleadings  and  the  issues  made  thereon. 
Dahlberg  v.  Girsch,  157  Cal.  324;  107  Pac. 
616.  Upon  appeal  from  an  order  denying 
a  new  trial,  specifications  in  the  bill  of 
exceptions,  that  the  conclusions  of  law  em- 
braced in  the  findings  are  erroneous,  can 
■be  reviewed  only  on  appeal  from  the  judg- 
ment, or  from  an  order  under  this  and 
§  663a,  post.  Mentone  Irrigation  Co.  v. 
Eedlands  etc.  Power  Co.,  155  Cal.  323;  22 
L.  E.  A.  (N.  S.)  382;  17  Ann.  Cas.  1222; 
100  Pac.  1082. 

Notice  of  motion  under  this  section.  See 
note  post,  §  663a. 

Vacating  judgment.   See  note  ante,  §  662. 


§  663a.  Notice  of  intention,  service  of.  The  party  intending  to  make 
the  motion  mentioned  in  the  last  section  must,  within  ten  days  after  notice 
of  the  entry  of  judgment,  serve  upon  the  adverse  party  and  file  with  the 
clerk  of  the  court  a  notice  of  his  intention,  designating  the  grounds  upon 
which,  and  the  time  at  which  the  motion  will  be  made,  and  specifying  the 
particulars  in  which  the  conclusions  of  law  are  not  consistent  Avith  the 
finding  of  facts,  or  in  which  the  judgment  or  decree  is  not  consistent  with 
the  special  verdict.  The  time  designated  for  the  making  of  the  motion  must 
not  be  more  than  sixty  days  from  the  time  of  the  service  of  the  notice. 
An  order  of  the  court  granting  such  motion  may  be  reviewed  on  appeal 
in  the  same  manner  as  a  special  order  made  after  final  judgment  and  a  bill 
of  exceptions  to  be  used  on  such  appeal  may  be  prepared  as  provided  in 
section  six  hundred  and  forty-nine. 


Legislation  8  663a.  1.  Added  by  Stats.  1897, 
p.  59,  as  §  663i,  (1)  the  first  sentence  (a) 
having  the  words  "rendition  of  judgment  or  de- 
cree" instead  of  "entry  of  judgment"  (the  sub- 
stitution being  made  in  1907),  (b)  but  not 
having  the  words  "and  the  time  at  which,"  be- 
fore "the  motion  will  be  made"  (the  insertion 
thereof  being  made  in  1907)  ;  (2)  the  second 
(and  final)  sentence  (recast  in  1907)  reading, 
"The  said  party  must,  within  sixty  days  after 
giving  such  notice  of  intention,  make  the  motion 
to  the  court,  after  giving  due  notice  of  the 
time  of  making  such  motion  to  the  adverse 
party;  but  the  hearing  or  consideration  of  such 
motion  may  be  further  continued  by  the  court." 

2.  .\mendment  by  Stats.  1901,  p.  150;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  719,  renum- 
bering the  section  603a  (compare  par.  1,  supra, 
for  changes  made  in  first  sentence),  (1)  the 
second  sentence  being  recast  to  read  as  at  pres- 
ent    (1915),    (3)    a    new    (and    final)    sentence 


being  added  (recast  in  1915),  reading,  "An  or- 
der of  the  court  granting  such  motion  may  be 
reviewed  on  appeal  in  the  same  manner  as  or- 
ders made  on  motions  for  a  new  trial,  and  a 
statement  to  be  used  on  such  appeal  may  be 
prepared  in  the  same  manner  as  statements 
after  a  motion  is  heard  upon  the  minutes  of  the 
court,  as  provided  in  section  six  hundred  and 
sixty-one."  The  code  commissioner,  in  his  note, 
says:  "Renumbered  thus  instead  of  663 J.  'Ren- 
dition' is  changed  to  entry,  to  correspond  to 
the  change  in  §  659 ;  the  last  sentence  of  the 
old  section  is  omitted  [amended]  ;  and  the  mov- 
ing party  is  required  to  state  the  time  when  his 
motion  will  be  made.  The  last  sentence  is  an 
addition." 

4.   Amended   by   Stats.    1915,   p.    203,   recast- 
ing the  final  sentence.    Compare  par.  3,  supra. 

Construction    of    section.    This    section 
does   not,  nor   does  §  663,   ante,   supersede, 


763 


RENDITION    AND    ENTRY    OP   JUDGMENT. 


§6G4 


in  any  way,  §  963,  post,  providing  for  an 
ai)peal  from  a  final  judgment.  Patch  v. 
Miller,  125  Cal.  240;  57'puc.  986. 

Appeal  from  order.  This  section  pro- 
Tides  for  an  appeal  from  an  order  grant- 
ing the  motion  under  §  663,  but  makes  no 
provision  for  an  appeal  from  an  order 
denying  such  motion.  Modoc  Co-operative 
Ass'n  V.  Porter,  11  Cal.  App.  270;  104  Pac. 
710.     An  order  of  the  court  below,  refus- 


ing to  render  a  new  and  different  judg- 
ment, must  he  aflirmed.  where  a  reversal 
would  require  the  appellate  court  to  make 
new  findings.  McLean  v.  Baldwin,  150  Cal. 
61.');  89  I'ac.  4  29. 

Causes  for  vacating  judgment.  .See  note 
ante,  §  663. 

Amendment  of  findings,  bee  note  ante, 
§663. 


CHAPTER  VIII. 

MANNER  OF  GIVING  AND  ENTERING  JUDGMENT. 


'■J  664.    Judgment    to    be    entered    in    twenty-four 

hours,  etc. 
§  665.     Case  may  be  brought  before  the  court  for 

argument. 
§  666.     When     counterclaim     established     exceeds 

plaintiff's  demand. 
§  667.     In   replevin,   judgment  to  be   in   the   alter- 
native,   and    with    damages.      Gold    coin 

or  currency  judgment. 
§  668.     Judgment-book  to  be  kept  by  the  clerk. 
I  669.     If  a  party  die  after  verdict,  judgment  may 

be  entered,  but  not  to  be  a  lien. 
§  670.  Judgment  roll,  what  constitutes. 
§  671.     Judgment   lien,   when   it   begins   and   when 

it  expires. 
5  672.    Docket  defined.      How  kept,   and  what  to 

contain. 
§  673.    Docket  to  be  open  for  inspection  without 

charge. 


§  674. 

§  675. 
§  675a. 

§  676. 

§  677. 
§  677J, 
§  678. 
§  678i, 

§  679. 


§  679i 
§  680. 
§  680J 


Transcript  to  be  filed  in  any  county,  and 
judgment  to  become  a  lien"  there. 

Satisfaction  of  a  judgment,  how  made. 

Satisfaction  of  mortgage  recorded.  Form 
of  satisfaction. 

Undertaking  in  actions  to  set  aside  trans- 
fer of  property. 

Conditions  of  undertaking. 

Filing  and  serving  undertaking. 

Objections  to  sureties. 

Justification  of  sureties.  Approval  and 
disapproval  of  undertaking. 

Objection  because  estimated  value  in  un- 
dertaking less  than  market  value.  New 
undertaking. 

.Justification  of  sureties. 

■\Vhen   undertaking  becomes  effective. 

Judgment  against  sureties. 


§664.  Judgment  to  be  entered  in  twenty-four  hours,  etc.  When  trial 
^y  jury  has  been  had,  judgment  must  be  entered  by  the  clerk,  in  conform- 
ity to  the  verdict,  within  twenty-four  hours  after  the  rendition  of  the  ver- 
dict, unless  the  court  order  the  ease  to  be  reserved  for  argument  or  further 
consideration,  or  grant  a  stay  of  proceedings.  If  the  trial  has  been  had 
by  the  court,  judgment  must  be  entered  bj^  the  clerk,  in  conformity  to  the 
decision  of  the  court,  immediately  upon  the  filing  of  such  decision.  In  no 
case  is  a  judgment  effectual  for  any  purpose  until  so  entered. 

Keserving,  for  argument  or  further  considera-       equitable    action    is    merely    advisory,    but 

when  it  is  decisive  of  the  action,  is  regu- 
larly returned  and  entered  in  the  minutes 
of  the  court,  and  the  court  orally  orders 
judgment  to  be  entered  thereon,  such  order 
is  a  verbal  adoption  of  the  verdict  and  a 
rendition  of  judgment;  and  the  failure  of 
the  clerk  to  transcribe  the  verdict  into 
the  minute-book,  and  to  enter  judgment  as 
ordered,  is  a  failure  to  perform  a  minis- 
terial duty,  which  can  afterwards  be  per- 
formed at  his  own  instance,  or  by  the 
direction  of  the  court,  at  anv  time.  Holt 
V.  Holt.  107  Cal.  2.")8;  40  Pac.  390. 

Rendition  and  entry  of  judgment.  The 
terms  "entry  of  judgment"  and  "rendition 
of  judgment,"  as  used  in  the  code,  have 
distinct  meanings:  the  "rendition"  is  the 
pronouncement  of  the  verdict  of  the  jury 
or  the  decision  of  the  court;  the  "entry" 
is  but  a  ministerial  act  of  the  clerk.  Gray 
V.  Palmer,  28  Cal.  416.  In  entering  judg- 
ment on  a  verdict  or  findings,  the  clerk 
performed  a  ministerial  duty:  he  can 
neither  enlarge  nor  abridge  the  scope  of 
the  judgment.    McMahon  v.  Ileteh-Hetchy 


tion.     Post,  §  66 

Stay  of  proceedings  by  appeal.    Post,  §  949. 
Arrest  of  defendant.    Post,  §  684. 

Legislation  S  664.  1.  Enacted  March  11.  1872; 
"based  on  Practice  Act,  §  197,  which  had  the 
word   "shall"    instead   of   "must,"    in   first   line. 

3.  Amendment  by  Stats.  1901,  p.  150;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907.  p.  719,  by  add- 
ing the  last  two  sentences;  the  code  commis- 
sioner saying.  "The  amendment  consists  in  the 
addition  of  the  last  two  sentences,  and  requires 
the  clerk  to  enter  judgment  immediately  upon 
filing  the  decision  of  the  court,  and  declares  the 
judgment  non-effectual  for  any  purpose  until  so 
entered." 

Construction  of  section.  This  section 
is  purely  directory,  and  not  mandatory. 
Bundv  V.  Maginess,  76  Cal.  532;  18  Pac. 
668;  Churchill  v,  Louie,  135  Cal.  608;  67 
Pac.  1052. 

Proceedings  in  suits  in  equity.  Cases 
involving  questions  of  purely  equitable 
cognizance,  where  the  issues  are  sulnnitted 
to  a  jury,  are  not  within  this  section,  and 
the  clerk  has  no  power  to  enter  judgment 
upon  such  verdicts.  Churchill  v.  Louie,  135 
«Cal.  608;  67  Pac.  1052.     The  verdict  in  an 


664 


MANNER  OF   GIVING  AND   ENTERING   JUDGMENT. 


764 


etc.  Ry.  Co.,  2  Cal.  App.  400;  84  Pac.  350. 
This  section  is  equivalent  to  an  express  di- 
rection by  the  court  to  the  clerk  to  enter 
the  judgment  in  accordance  with  the  ver- 
dict; and  if,  through  the  neglect  or  mis- 
prision of  the  clerk,  the  judgment  actually 
rendered  is  not  entered,  the  court  may, 
even  after  the  expiration  of  six  months, 
order  the  judgment  entered  nunc  pro  tunc. 
Marshall  v.  Taylor,  97  Cal.  422;  32  Pac. 
515.  Where  the  action  is  tried  by  the 
court,  judgment  cannot  be  entered  until 
after  the  decision  has  been  rendered,  and 
a  writ  of  mandate  will  not  be  granted  to 
compel  the  entry  of  judgment  until  after 
the  court  has  tried  the  cause  and  rendered 
its  decision.  Broder  v.  Superior  Court,  103 
Cal.  121;  37  Pac.  143.  The  clerk  may  be 
compelled,  on  motion,  to  enter  a  proper 
judgment:  the  court  will  not  require  the 
party  interested  to  resort  to  mandamus. 
Page  V.  Superior  Court,  76  Cal.  372;  18 
Pac.  385.  Neglect  of  the  clerk  to  enter 
and  docket  the  judgment,  and  to  prepare 
and  file  the  judgment  roll,  where  the  de- 
cree is  ordered  and  signed,  does  not  de- 
stroy or  impair  the  effect  of  the  judgment. 
Baker  v.  Brickell,  102  Cal.  620;  36  Pac. 
950.  The  provision  of  this  section,  that 
judgment  must  be  entered  within  twenty- 
four  hours,  is  directory.  Waters  v.  Dumas, 
75  Cal.  563;  17  Pac.  685.  The  failure  of 
the  clerk  to  enter  the  judgment  within 
twenty-four  hours  does  not  affect  the  va- 
lidity of  a  judgment  afterward  entered. 
First  Nat.  Bank  v.  Wolff,  79  Cal.  69;  21 
Pac.  551,  748;  Edwards  v.  Hellings,  103 
Cal.  204;  37  Pac.  218;  Churchill  v.  Louie, 
135  Cal.  608;  67  Pac.  1052.  A  judgment 
entered  on  a  Monday,  upon  a  verdict  ren- 
dered on  the  night  of  the  preceding  Satur- 
day, is  not  invalidated  by  reason  of  the 
delaj'  in  its  entry.  Bundy  v.  Maginess,  76 
Cal.  532;  18  Pac"!  668.  Jurisdiction  is  not 
lost  by  failure  of  the  clerk  to  enter  judg- 
ment within  twenty-four  hours:  the  only 
penalty  is  that  provided  by  the  sixth 
subdivision  of  §  581,  ante,  authorizing  a 
dismissal  where  the  party  entitled  to  judg- 
ment neglects  for  six  months  to  demand 
and  have  the  same  entered  (Waters  v. 
Dumas.  75  Cal.  563;  17  Pac.  685);  nor  can 
the  defendant  against  whom  the  judgment 
is  entered  invoke  such  failure  for  the  pur- 
pose of  annulling  a  judgment  to  which  he 
has  no  other  defense:  such  failure  may 
render  the  clerk  liable  to  an  action  by  the 
judgment  creditor.  Edwards  v.  Hellings, 
103  Cal.  204;  37  Pac.  218.  The  judgment 
is  binding  on  the  parties  and  privies,  when 
signed  by  the  judge  and  filed:  the  clerk 
cannot,  by  failure  to  enter  it,  abridge  the 
rights  of  any  party  interested.  Estate  of 
Newman,  75  Cal.  213;  7  Am.  St.  Rep.  146; 
16  Pac.  887.  The  action  of  the  court  does 
not  depend  upon  the  entry  of  its  orders 
by  the  clerk,  but  upon  the  fact  that  the 
orders  have  been  made;  and  when  an  order 


has  been  made  by  the  court,  it  is  as  effect- 
ive as  if  it  had  been  entered  of  record 
by  the  clerk.  Niles  v.  Edwards,  95  Cal.  41; 
30  Pac.  134.  The  effect  of  an  order  setting 
aside  a  verdict  is  to  grant  a  new  trial, 
otherwise  no  judgment  could  be  entered, 
there  being  no  verdict;  and  no  further 
trial  can  take  place,  because  no  such  order 
was  made  in  terms.  Eades  v.  Trowbridge,, 
143  Cal.  25;  76  Pac.  714.  It  is  immaterial 
who  sets  the  clerk  in  motion  to  discharge 
his  ministerial  duty  of  entering  the  judg- 
ment, or  who  pays  his  fees  therefor;  and 
he  may  perform  his  duty  of  his  own  mo- 
tion, or  the  court  can  direct  him  to  do  it, 
or  any  party  interested  in  having  it  done 
mav  procure  him  to  do  it.  Baker  v.  Brickell, 
102  Cal.  620;  36  Pac.  950.  Where  the  pre- 
vailing party  pays  the  clerk  the  costs  of 
the  action  after  the  verdict,  and  presents 
him  with  a  form  of  the  judgment,  he  has 
a  right  to  assume  that  the  clerk  will  per- 
form the  duty  required  of  him:  such  party 
is  not  guilty  of  negligence,  where  the  clerk 
fails  to  perform  his  duty.  Marshall  v. 
Taylor,  97  Cal.  422;  32  Pac.  515.  The- 
judgment  in  an  action  to  quiet  title  be- 
comes a  muniment  of  title  to  a  successor 
in  interest  of  the  prevailing  party,  and  he 
mav  procure  its  entry  at  anv  time.  Baker 
V.  'Brickell,  102  Cal.  620;  "^36  Pac.  950. 
Damages  arising  from  personal  injuries  to- 
a  married  woman  are  community  property,, 
and  a  judgment  in  favor  of  both  her  and 
her  husband  is  properly  entered  upon  a 
finding  of  injury  to  her  alone.  Paine  v. 
San  Bernardino  Valley  etc.  Co.,  143  Cal.. 
654;  77  Pac.  659.  The  preceding  decisions, 
were  rendered  prior  to  the  amendment  of 
this  section  in  1907.  An  entry  in  the  so- 
called  "rough  minutes"  by  the  clerk  is  not 
official:  there  is  no  law  providing  for 
"rough  minutes."  Browuell  v.  Superior 
Court.  157  Cal.  703;  109  Pac.  91. 

Entry  of  judgment  in  justices'  courts. 
See  notes  post,  §§  891-894. 

Rendition  of  judgment,  what  constitutes.. 
See  note  ante,  §  632. 

Entry  of  default  judgment.  A  judg- 
ment by  default,  entered  before  the  tim& 
for  answering  has  expired,  is  erroneous 
merely,  and  can  be  attacked  only  upon 
motion  or  by  appeal,  and  by  the  party 
aggrieved.  Estate  of  Newman,  75  Cal.  213; 
7  Am.  St.  Rep.  146;  16  Pac.  887.  Judg- 
ment may  be  entered  upon  failure  to  an- 
swer, after  the  overruling  of  a  demurrer,, 
against  one  defendant,  without  at  the  same- 
time  entering  judgment  against  his  co- 
defendant,  who  has  not  been  served.  Ed- 
wards v.  Hellings,  103  Cal.  204;  37  Pac. 
218.  Several  judgments  against  defendants 
may  be  entered,  in  an  action  of  ejectment 
against  several  defendants  occupying  dif- 
ferent portions  of  the  property;  this  may 
be  done  upon  the  trial,  on  separate  find- 
ings or  verdicts,  and  there  is  no  objection 
to    the    same    course    or    findings    by    the 


765 


CLERICAL    ERRORS — FINDLVGS,    ETC. — INTEREST, 


§664 


court  after  default.  Liok  v.  Stockdale,  IS 
Cal.210. 

Clerical  errors  in  entry  of  judgment  cor- 
rected how.  A  mistako  iiiado  by  tlic  clork 
ill  the  entry  of  a  judjiiiiciit,  not  anthori/.eil 
liy  the  decision,  i.s  api>arent  upon  the  face 
of  the  record,  and  may  be  rectified  at  any 
time,  by  reason  of  the  inherent  power  of 
the  court  over  its  own  itroceedinga,  al- 
though more  than  six  months  have  elapsed 
from  the  entry  of  the  judgment,  ^an 
Joaquin  Land  etc.  Co.  v.  West,  99  Cal. 
345;  33  Pac.  928.  A  mere  clerical  error 
in  computation,  appearing  upon  the  face 
of  the  record,  may  be  corrected  at  any 
time  by  the  court,  of  its  own  motion,  with- 
out vacating  the  judgment.  Krickson  v. 
Stockton  etc.  R.  R.  Co.,  148  Cal.  206;  82 
Pac.  9G1. 

Findings  and  conclusions.  Conclusions 
of  law,  based  upon  findings  of  fact,  may 
be  changed  at  any  time  before  judgment; 
and  the  judgment  is  not  final  until  re- 
corded. Condee  v.  Barton.  C2  Cal.  1.  The 
rendition  of  judgment  is  the  filing  of  the 
findings  of  fact  and  conclusions  of  law; 
jirior  to  the  code,  findings  were  not  es- 
sential to  the  entry  or  validity  of  the 
judgment,  and  therefore  the  entry  of  the 
decision  in  the  clerk's  minutes  constituted 
a  rendition  of  judgment,  but,  under  the 
code,  whenever  findings  are  required,  there 
can  be  no  rendition  of  judgment  until  they 
are  made  and  filed  with  the  clerk;  find- 
ings of  fact,  however,  are  required  only 
upon  the  trial  of  a  question  of  fact,  and 
they  may  be  waived,  and  whenever  they 
are  waived  or  are  not  required,  the  entry 
of  the  decision  in  the  minutes  constitutes 
a  rendition  of  judgment,  just  as  it  did 
under  the  former  system;  the  rendition  of 
a  judgment  is  a  judicial  act,  while  its 
entry  upon  the  record  is  merely  a  minis- 
terial one,  which  can  be  performed  by  the 
clerk  after  the  expiration  of  the  term  of 
office  of  the  judge  who  renders  it,  with 
as  much  effect  as  before.  Crim  v.  Kessing, 
89  Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074.  A  party  is  entitled,  as  a  matter  of 
right,  to  a  decision  from  the  judge  or  a 
verdict  from  the  jury  hearing  the  evi- 
dence: he  cannot  be  compelled  to  accept 
a  decision  upon  the  facts  from  another 
judge  and  another  jurv.  Guardianship  of 
Sullivan,  14,1  Cal.  462;  77  Pac.  153. 

Interest,  how  computed  in  judgment.  In- 
terest should  be  provided  for  in  the  judg- 
ment from  the  day  of  the  remiition  of 
the  verdict;  the  clerk  cannot  include  in 
the  judgment  a  sum  equal  to  interest 
from  the  rendition  of  the  verdict  to  the 
entry  of  the  judgment  (Alpers  v.  Scham- 
mel,  75  Cal.  590;  17  Pac.  708);  and  interest 
may  be  included  in  the  judgment  as  en- 
tered by  the  clerk,  although  the  decision 
is  silent  upon  that  point.  San  Joaquin 
Land  etc.  Co.  v.  West,  99  Cal.  345;  33  Pac. 
928. 


Judgment  must  follow  verdict.  The 
judgment  must  conform  to  the  verdict; 
and  where  the  verdict  passes  upon  ex- 
traneous facts  not  embraced  within  the 
issues  raised  by  the  j)leadings,  it  is  void 
pro  tanto,  and  the  surplus  matter  may  be 
disregarded  in  entering  judgment.  Wat- 
son V.  San  Francisco  etc.  R.  R.  Co.,  50  T'al. 
523.  Where  the  verdict  is  strictly  within 
the  issues,  the  clerk  has  no  authority  to 
enter  a  judgment  at  variance  with  the 
verdict  as  recorded.  McMahon  v.  Hetch- 
Hetchv  etc.  Ry.  Co.,  2  Cal.  App.  400;  84 
Pac.  350. 

Judgment  must  follow  agreement  of 
parties.  Where  it  is  stipulated  that  a  de- 
cree shall  be  entered  in  conformity  with 
an  agreement  between  the  parties,  the 
court's  j)ower  to  enter  a  decree  is  strictly 
limited  by  the  terms  of  the  agreement:  it 
cannot  embody  therein  extraneous  matters 
not  covered  by  the  agreement.  People's 
Ditch  Co.  V.  Fresno  Canal  etc.  Co.,  152 
Cal.  87;  92  Pac.  77. 

Judgment  against  defendant  under  ficti- 
tious name.  A  judgment  is  binding  upon 
a  party  sued  and  served  under  a  fictitious 
name,  unless  he  comes  in  and  sets  up  the 
misnomer  and  whatever  defense  he  may 
have.  Brum  v.  Ivins,  154  Cal.  17;  129  Am. 
St.  Rep.  137;  96  Pac.  876. 

Signature  to  judgment.  The  judgment 
need  not  be  signed  by  the  judge;  nor  does 
a  judgment  produced  from  the  original 
records  need  a  signature  or  authentication: 
the  signature  is  merely  to  give  the  clerk 
a  surer  means  of  accurately  entering  what 
has  been  adjudged.  Crim  v.  Kessing,  89 
Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac.  1074. 

Limitation  to  action  on  judgment.  The 
statute  of  limitations  runs  from  the  entry 
of  judgment,  and  not  from  its  rendition. 
Trenouth  v.  Farrington,  54  Cal.  273;  Ed- 
wards V.  Hellings,  103  Cal.  204;  37  Pac. 
218;  Herrlich  v.  McDonald,  104  Cal.  551; 
38  Pac.  360.  The  judgment  debtor  may 
at  any  time  cause  judgment  to  be  entered, 
and  thus  stop  the  running  of  the  statute. 
Edwards  v.  Hellings,  103  Cal.  204;  37  Pac. 
218. 

Records  of  sister  state.  A  substantial 
comidiance  with  the  provisions  of  this  sec- 
tion and  §  668,  post,  must  appear  in  the 
exemplification  of  the  record  of  a  sister 
state,  where  the  laws  of  such  state  have 
not  been  proved.  Wilson  v.  Durkee,  20  Cal. 
App.  492;  129  Pac.  617. 

New  trial.  Where  the  verdict  is  against 
the  evidence,  the  appellate  court  cannot 
correct  it:  the  case  will  be  remanded  for 
a  new  trial.  McMahon  v.  Hetch-Hetchy 
etc.  Ry.  Co.,  2  Cal.  App.  400;  84  Pac.  350. 

Nunc  pro  tunc  entry  of  judgment.  See  notei  4 
Am.  .St.  Hep.  MJrt;   20  L.  l^   A.   14:!. 

Right  to  enter  judgment  nunc  pro  tunc  as  of 
date  of  rendition,  so  as  to  affect  Intervening 
rights  of  third  persons.  See  note  15  L.  R.  A. 
(N.  S.)   68a. 


§§  665-667  MANNER   OF   GIVING  AND  ENTERING   JUDGMENT.  766^ 

§  665.  Case  may  be  brought  before  the  court  for  argument.  "When  the 
case  is  reserved  for  argument  or  further  consideration,  as  mentioned  in  the 
last  section,  it  may  be  brought  by  either  party  before  the  court  for  argu- 
ment. 

X-egislation  §  665.      Enacted   March   11,    1872;        by  Stats.  1854,  Redding  ed.  p.  62,  Kerr  ed.  p.  83. 
re-enactment  of  Practice  Act,   §   198,  as  amended 

§  666.     When  counterclaim  established  exceeds  plaintiflf's  demand.     If  a 

counterclaim,  established  at  the  trial,  exceed  the  plaintiff's  demand,  judg- 
ment for  the  defendant  must  be  given  for  the  excess ;  or  if  it  appear  that 
the  defendant  is  entitled  to  any  other  affirmative  relief,  judgment  must 
be  given  accordingly. 

Couuterclaim.  be  entered   (Duff  v.  Hobbs,   19  Cal.  646)  f 

q'  ^fc^'^^cil^' .■'^"*^' l^^^wwf •  .nn»     A.tP  ^ut    tJie    defendant    is    not    compelled,    by 

2.  Dismissal  or  nonsuit,  where  none.  Ante,  /..,  •  ,.  ,  ^  -■',../ 
§  581,  subd.  1.  reason  or  this  section,  to  set  up  and  hti- 

3.  Exceeding  plaintiff's  demand.  Ante,  §  626.  gate  new  matter  constituting  a  counter- 
Legislation  §  666.     Enacted  March  11,   1872;  claim.    Ayres  v.  Benslev,  32  Cal.  620. 

^^^o''^,r  ^i"^'v!'''?,f''l'  I  }^^   *^'T  ^'"'^  ^?fi!'  Nature  of  cross-complaint.     The  filing  of 

§  263),  which  (1)  had  the  words  so  estab-  i  •  j_  •  ^  j,  ^  &  "-^ 
lished"  after  "demand,"  and  (2)  the  word  "shall"  a  Cross-COmplaint  IS  not  the  commence- 
instead  of  "must,"  in  both  instances.  ment  of  an  "action,"  but  is  a  proceeding 
Counterclaim  sufficient  when.  A  counter-  in  an  action  to  enable  all  matters  in  dis- 
claim must  exist  in  favor  of  the  defend-  pute  therein  to  be  determined  by  a  single- 
ant  and  against  the  plaintiff,  in  order  that  judgment.  Lowe  v.  Superior  Court,  165 
judgment,  as  provided  in  this  section,  may  Cal.  708;  134  Pac.  190. 

§  667,  In  replevin,  judgment  to  be  in  the  alternative,  and  with  damages. 
Gold  coin  or  currency  judgment.  In  an  action  to  recover  the  possession 
of  personal  property,  judgment  for  the  plaintiff  may  be  for  the  possession 
or  the  value  thereof,  in  case  a  delivery  cannot  be  had,  and  damages  for  the 
detention.  If  the  property  has  been  delivered  to  the  plaintiff,  and  the 
defendant  claim  a  return  thereof,  judgment  for  the  defendant  may  be  for 
a  return  of  the  property  or  the  value  thereof,  in  case  a  return  cannot  be 
had.  and  damages  for  taking  and  vs^ithholding  the  same.  In  an  action  on 
a  contract  or  obligation  in  writing,  for  the  direct  payment  of  money,  made 
payable  in  a  specified  kind  of  money  or  currency,  judgment  for  the  plain- 
tiff,  vrhether  it  be  by  default  or  after  verdict,  may  follow  the  contract  or 
obligation,  and  be  made  payable  in  the  kind  of  money  or  currency  specified 
therein ;  and  in  all  actions  for  the  recovery  of  money,  if  the  plaintiff  allege 
in  his  complaint  that  the  same  was  understood  and  agreed  by  the  respective 
parties  to  be  payable  in  a  specified  kind  of  money  or  currency,  and  this 
fact  is  admitted  by  the  default  of  the  defendant  or  established  by  evidence^ 
the  judgment  for  the  plaintiff  must  be  made  payable  in  the  kind  of  money 
or  currency  so  alleged  in  the  complaint;  and  in  an  action  against  any  per- 
son for  the  recovery  of  money  received  by  such  person  in  a  fi*dueiary 
capacity,  or  to  the  use  of  another,  judgment  for  the  plaintiff  must  be  made 
payable  in  the  kind  of  money  or  currency  so  received  by  such  person. 

Money.  first    sentence,    the    word    "damage"    instead    of 

l._How  computed  and  stated.    See  Pol.  Code,  "damages";     (2)    in    the    last    sentence,    (a)    the- 

5  3274.  words   "the  same"  instead  of  "it,"  after  "whether," 

2.   Specific,  or  currency.     Fiduciary  capacity.  (b)   the  word  "shall"  before  "allege  in  his,"    (c) 

Po.st.  §  1407.  the   words    "the    same    shall   be"    instead   of    "this 

Replevin.  fact  is,"    (d)   after  "by  evidence,"  the  words   "to 

1.  Return  to  defendant.  See  ante,  §§  514,  the  satisfaction  of  the  court,  referee  or  jury  by 
627.  whom    the    action    shall    be    tried,"    (e)    the    word 

2.  Judgment,  verdict.    Ante,  §  627.  "shall"  instead  of  "must,"  before  "be  made,"  (f) 

3.  Value,  correcting  affidavit  of.  Ante,  §  473.  the  word  "specified"  instead  of  "alleged,"  after 
Execution.  J'ost,  §  682,  subd.  5.  "currency  so,"  and  (g)  instead  of  the  word 
Legislation  S  667.      Enacted   Marrh    n,    1872;  "must,"  "before    "be    made    payable,"    the    words 

based  on  Pra.tice  Act,  §  200,  as  amended  by  "whether  the  same  be  by  default  or  after  verdict- 
Stats.    1809-70,    p.   295,   which   had,    (1)    in   the        may." 


767 


VALUE    OF    AND    TITLE    TO    PROPERTY — FINDINGS. 


§667 


Construction  of  section.  This  spctiou 
confers  a  special  autliority  to  enter  a 
peculiar  judf^ment  not  known  to  the  cdni- 
mon  law,  or  even  to  courts  of  equity  in 
certain  sjiecified  actions;  it  must  be  strietly 
construed,  and  cannot  be  extended  beyond 
the  case  prescribed,  llatliaway  v.  Braily, 
26  Cal.  581.  It  applies  to  cases  wliere 
judgment  is  entereil  after  trial,  but  not  to 
cases  where  the  action  is  dismissed  with- 
out trial  (Kneebone  v.  Kneeboue,  83  Cal. 
645;  23  Pac.  1031);  nor  has  it  any  appli- 
cation where  the  ]>roiiertv  is  not  delivered 
to  the  plaintiff.  Black  v.'Hilliker,  130  Cal. 
190;  C2  Pac.  481. 

Pleadings.  It  is  not  necessary  to  allege 
the  particular  facts  upon  which  the  plain- 
tiff claims  title  and  right  of  possession:  it 
is  sufficient  to  allege  the  same  generally; 
but  where  both  are  alleged,  a  denial  of 
either  is  sufficient.  Nudd  v.  Thompson,  34 
Cal.  30. 

Value  of  property.  The  plaintiff  is  en- 
titled primarily  to  the  very  property  sued 
for,  and  the  value  he  is  to  receive,  where 
delivery  cannot  be  had,  is  the  value  as  of 
the  day  of  trial:  the  money  value  is  a  sub- 
stitute for  the  property,  and  the  amount 
can  be  approximately  fixed  by  ascertain- 
ing it  as  of  the  date  nearest  to  the  time 
when  the  property  would  be  delivered. 
Phillips  V.  Sutherland,  2  Cal.  Unrep.  241; 
2  Pac.  32.  Where  the  property  is  of  a 
fluctuating  market  value,  the  value  to  be 
fixed  is  the  highest  price  between  the  time 
of  taking  and  the  trial;  the  reason  for  the 
exception  being,  that,  in  the  usual  course 
of  trade  or  business,  it  is  likely  the  owner 
would  have  realized  the  enhanced  value  if 
he  had  not  been  deprived  of  his  property. 
Page  V.  Fowler,  39  Cal.  412;  2  Am.  Rep. 
462.  The  market  value  of  property  unlaw- 
fully taken  is  to  be  ascertained  at  the 
place  of  conversion.  Hamer  v.  Hathaway, 
33  Cal.  117.  The  value  which  the  plaintiff 
is  entitled  to  recover  in  case  a  delivery 
cannot  be  had,  is  the  value  of  the  property, 
to  be  ascertained  at  the  place  where  it  is 
detained  when  the  action  is  commenced; 
and  evidence  of  its  value  in  markets  near 
by,  the  cost  of  marketing,  etc.,  is  admissi- 
ble as  tending  to  prove  its  value  at  the 
place  of  detention  (Hisler  v.  Garr,  34  Cal. 
641);  and  in  fixing  the  value,  evidence  of 
what  it  would  cost  to  purchase  in  open 
market  and  replace  the  property  in  con- 
troversy is  admissible.  Angell  v.  Hopkins, 
79  Cal.  181;  21  Pac.  729;  Levy  v.  Scott, 
115  Cal.  39;  46  Pac.  892.  The  jury  are  to 
find  the  value  of  any  specific  portion  of 
the  property,  only  if  so  instructed;  and 
error  can  therefore  arise  only  in  a  case 
where  such  instruction  would  be  pertinent 
and  proper,  and  the  instruction  was  asked 
and  refused.  Whetmore  v.  Rupe,  65  Cal. 
237;  3  Pac.  851.  Where  the  defendant 
takes  issue  only  upon  the  aggregate  value 
of   the  property,  and  no   evidence   of  the 


value  of  each  specific  article  is  offered  at 
the  trial,  the  court  need  not  instruct  the 
jury  to  find  the  value  of  each  specific 
article.  Brenot  v.  Robinson,  108  Cal.  143; 
41  Pac.  37.  The  separate  value  of  each 
article  need  not  be  fouml,  where  the  plain- 
tiff alleges  only  the  agL'regate  value  of  all 
the  articles,  and  all  the  property  is  a^l- 
judged  returned  to  the  defendant:  the  find- 
ing of  its  aggregate  value  is  all  that  is 
required.  Black  v.  Ililliker,  130  Cal.  190; 
62  Pac.  481. 

Title  to  property.  Where  the  plaintiff 
or  the  defendant  in  the  original  suit  oh)- 
tains  judgment  for  the  delivery  of  the 
property,  or  if  it  cannot  be  found,  then 
for  its  value,  the  title  to  the  j^roperty  vests 
in  the  party  against  whom  the  judgment 
is  given,  subject  to  the  right  of  the  suc- 
cessful party  to  take  it  in  discharge  of  so 
much  of  the  judgment  as  is  made  up  by 
the  assessed  value  of  the  property;  and 
where  the  pjroperty  is  accidentally  lost  or 
destroyed  after  judgment,  and  before  pos- 
session by  the  sheriff,  the  loss  falls  upon 
the  unsuccessful  party,  and  he  is  bound 
to  paj'  its  value.  Nickerson  v.  Chatterton, 
7  Cal.  568;  and  see  Hunt  v.  Robinson,  11 
Cal.  202. 

Findings.  It  is  not  necessary  to  make 
a  finding  as  to  a  separate  defense,  where 
the  matters  therein  alleged  are  all  included 
in  the  general  issue  as  to  ownership.  Black 
V.  Black,  74  Cal.  520;  16  Pac.  311.  The 
right  of  the  plaintiff  to  the  possession  of 
the  property  is  a  material  issue,  upon  which 
the  court  must  find,  in  order  that  the  find- 
ings shall  sustain  the  judgment  for  the 
plaintiff.  Cooke  v.  Aguirre,  86  Cal.  479; 
25  Pac.  5.  The  finding  of  the  right  of  pos- 
session at  the  time  of  the  commencement 
of  the  action  is  immaterial,  where  the  judg- 
ment is  for  the  defendant  for  the  return 
of  the  property,  or  its  value  in  a  stipu- 
lated sum.  Banning  v.  Marleau,  133  Cal. 
485;  65  Pac.  964.  Where  the  jury  finds  the 
right  of  possession  to  be  in  the  plaintiff, 
the  conclusion  of  law  follows,  as  provided 
in  this  section,  that  ho  is  entitled  to  de- 
livery if  it  can  be  had,  and  if  not,  to  the 
value  of  the  property  as  found  by  the  jury, 
in  the  alternative:  the  judgment  must  con- 
tain tlii^,  but  the  verdict  need  not.  Rvan 
V.  Fitzgerald,  87  Cal.  345;  25  Pac.  546.  The 
legal  effect  of  a  finding  for  the  defendant, 
on  the  question  of  the  plaintiff's  right  to 
the  property,  is  to  entitle  the  defendant, 
from  whom  it  was  taken,  to  its  restora- 
tion: this  right  is  not  dependent  upon  any 
finding  of  the  jury  to  that  effect,  but  is 
a  conclusion  of  law  from  the  verdict  for 
the  defendants;  and  it  is  the  right  of  the 
court  to  state  this  legal  conclusion  as  a 
portion  of  its  judgment.  Waldman  v. 
Broder,  10  Cal.  378.  Contradictory  find- 
ings, determining  that  both  parties  to  the 
suit  were  in  possession  of  the  projterty  at 
the  commencement  thereof,  cannot  support 


§  667 


MANNER   OF   GIVING  AND   ENTERING   JUDGMENT. 


768 


the  judgment.  Carman  v.  Ross,  64  Cal. 
249;  29  Pac.  510.  Where  the  defendant, 
besides  taking  issue  as  to  the  alleged  gross 
value  of  the  property  claimed,  set  forth 
the  value  of  each  specific  article  thereof, 
aggregating  a  less  sum,  the  court  is  not  re- 
quired to  find  the  value  of  each  of  the 
specific  articles,  if  no  reason  appears  there- 
for beyond  the  mere  fact  of  such  aver- 
ments of  the  answer.  Kellogg  v.  Burr,  126 
Cal.  38;  5S  Pac.  306. 

Verdict.  The  code  does  not  require  the 
verdict  to  be  special,  except  as  to  the  value 
of  the  property;  the  sole  object  of  this 
exception  is  to  enable  the  court  to  render 
an  alternative  judgment,  as  requireii  by 
this  section;  a  verdict,  special  as  to  the 
value  of  the  property,  but  general  as  to 
all  the  other  issues,  is  sufficient  to  justify 
a  judgment  for  the  return  of  property, 
or  for  the  value  thereof  in  case  delivery 
cannot  be  had:  such  a  judgment  would 
consist  entirely  of  pure  conclusions  of  law 
from  the  verdict.  Etchepare  v.  Aguirre,  91 
Cal.  2SS;  25  Am.  St.  Eep.  ISO;  27  Pac.  668. 
A  general  verdict  for  the  defendant  will 
support  a  judgment  for  the  return  of  the 
property  to  him:  failure  to  give  an  alterna- 
tive judgment  for  the  value  thereof  is  no 
ground  of  complaint  on  the  part  of  the 
plaintiff.  Waldman  v.  Broder,  10  Cal.  378. 
In  an  action  against  a  corporation  and  its 
manager,  where  the  question  at  issue  was, 
whether  the  plaintiff  was  the  owner  and 
entitled  to  the  possession  of  the  property, 
and  no  affirmative  relief  was  sought  .by 
the  defendants,  a  verdict  "for  the  defend- 
ant" is  not  so  uncertain  and  informal  that 
it  cannot  form  a  basis  for  a  judgment  that 
the  plaintiff  take  nothing,  and  that  the 
defendants  (named)  recover  from  the 
plaintiff  their  costs.  Butler  v.  Estrella 
Raisin  etc.  Co.,  124  Cal.  239;  56  Pac.  1040; 
and  see  Willard  v.  Archer,  63  Cal.  33. 
Where  the  verdict  is  too  informal  to  sup- 
port the  judgment,  and  the  judgment  is 
erroneous  because  omitting  to  describe 
specifically  the  property  of  which  restitu- 
tion is  to  be  made,  these  defects  are  not 
cured  by  a  stipulation  of  the  defendant, 
that  the  verdict  is  a  finding  for  the  plain- 
tiff, as  to  the  title  and  right  of  possession 
of  the  property  described  in  the  complaint. 
Campbell  v.  Jones,  38  Cal.  507.  Where  a 
general  averment  of  damages  in  the  com- 
plaint is  not  challenged,  and  the  evidence 
of  the  plaintiff  in  relation  thereto  is  not 
objected  to,  and  the  mode  of  his  estima- 
tion thereof  is  not  inquired  into  on  cross- 
examination,  a  verdict  awarding  damages 
for  detention  is  sufficiently  supported. 
Hickev  v.  Coschina,  133  Cal.  81;  65  Pac. 
313. 

Judgment,  In  general.  A  judgment  for 
the  recovery  of  possession  of  a  note,  or  its 
value,  may  be  rendered  upon  a  complaint 
sufficiently  stating  a  cause  of  action  there- 
for, although  a  different  relief  is  prayed: 


the  relief  to  which  the  plaintiff  may  be 
entitled  is  to  be  determined  by  the  court, 
and,  after  trial,  any  relief  consistent  with 
the  case  made  by  the  complaint,  and  em- 
braced within  the  issues,  may  be  given. 
More  V.  Finger,  128  Cal.  313;  60  Pac.  933. 
A  judgment  for  half  of  the  property  de- 
scribed in  the  complaint,  entered  on  a 
verdict  therefor,  where  all  the  material 
allegations  of  the  complaint  are  in  issue, 
is  not  responsive  to  the  issues  made,  and 
is  a  nullity.  Muller  v.  Jewell,  66  Cal.  216; 
5  Pac.  84.  Where  there  is  nothing  in  the 
record  to  show  that  a  delivery  cannot  be 
had,  and  the  verdict  implies  that  the  prop- 
erty is  not  susceptible  of  delivery  by  the 
defendant,  and  finds  for  its  return,  or 
value  in  a  specified  sum,  a  judgment  for 
the  plaintiff,  merely  for  the  value  of  the 
property,  and  not  for  the  possession,  or 
the  value  thereof  in  case  a  delivery  cannot 
be  had,  is  not  in  conformity  with  the  stat- 
ute. Meads  v.  Lasar,  92  Cal.  221;  28  Pac. 
935.  The  judgment  must,  of  itself,  or  by 
reference  to  the  complaint  or  other  plead- 
ings, contain  a  definite  description  of  the 
property.  Welch  v.  Smith,  45  Cal.  230.  A 
judgment  not  containing  a  sufficiently 
definite  description  of  the  property,  nor 
referring  to  any  other  pleading  or  paper 
for  such  description,  is  bad  for  uncer- 
tainty. Cooke  V.  Aguirre,  86  Cal.  479;  25 
Pac.  5.  A  judgment,  that  the  plaintiff  re- 
cover the  possession  of  the  personal  prop- 
erty in  the  complaint  herein  described,  is 
not  void  for  uncertainty,  where  the  com- 
plaint specifically  describes  the  property 
sued  for.  Hogue  v.  Fanning,  73  Cal.  54; 
14  Pac.  560.  A  reference  in  the  judgment 
to  the  findings,  and  in  the  findings  to  the 
complaint,  for  a  description  of  the  prop- 
erty sought  to  be  recovered,  is  inexcusably 
circuitous,  but  not  ambiguous  or  uncertain: 
the  maxim,  Certum  est  quod  certum  reddi 
potest,  applies.  Kelly  v.  McKibben,  54 
Cal.  192.  Where  the  plaintiff's  verdict 
and  judgment  are  limited  to  a  recovery  of 
part,  only,  of  the  property,  and  silent  as 
to  the  remainder,  he  has  no  right  to  the 
possession  of  that  remainder;  and  there 
being  nothing  to  show  but  that  the  de- 
fendant is  entitled  thereto,  it  cannot  be 
withheld  from  him;  and  the  plaintiff  is 
precluded  from  any  further  litigation  as  to 
the  remainder.  Ryan  v.  Fitzgerald,  87  Cal. 
345;  25  Pac.  546.  Where  defendants  are 
sueci  jointly,  a  joint  judgment  in  their  favor 
is  not  erroneous,  although  each  of  them 
answered  separately.  Myers  v.  Moulton, 
71  Cal.  498;  12  Pac."^  505.  Where,  in  a  suit 
against  a  defendant  as  an  individual,  he 
justifies  as  the  assignee  of  the  estate  of  an 
insolvent  debtor,  he  cannot  complain  if 
judgment  runs  against  him  both  in  his  in- 
dividual and  representative  capacity,  and 
not  against  the  estate  of  the  insolvent. 
O'Brien  v.  Ballou,  116  Cal.  318;  48  Pac. 
130. 


769 


JUDGMEN'T    IN    THE    ALTERNATIVE. 


§6tJ7 


Judgment  In  the  alternative.  The  .judg- 
ment must  follow  the  verdict,  aud  be  in 
the  alternative,  that  the  successful  party 
shall  have  a  ilelivery  of  the  property,  or  if 
that  cannot  be  had,  shall  recover  its  value 
as  found  by  the  jury,  aud  stated  in  the 
judgment,  with  damages  and  costs.  Nick- 
erson  v.  C'hatterton,  7  Cal.  5(3S;  Mc<'ue  v. 
Tunstead,  6G  Cal.  486;  6  Pac.  31();  Brich- 
man  v.  Ross,  (57  Cal.  601;  8  Pac.  316;  Cooke 
V.  Aguirre,  86  Cal.  479;  23  Pac.  o;  Stewart 
V.  Taylor,  68  Cal.  5;  8  I'ac.  605;  and  see 
Holmberg  v.  Hendy,  2  Cal.  Unrep.  650;  10 
Pac.  394;  Campbell  v.  Jones,  38  Cal.  507; 
Cummings  v.  Stewart,  42  Cal.  230.  A  judg- 
ment not  in  the  alternative  form,  as  re- 
quired by  this  section,  is  erroneous.  Stewart 
V.  Taylo'r,  68  Cal.  5;  8  Pac.  605.  A  statu- 
tory rule  is  laid  down  as  to  the  judgment 
which  shall  be  entered  in  actions  to  re- 
cover the  possession  of  personal  property; 
and  a  judgment  cannot  be  entered  for  the 
alternative  value,  unless  it  is  found  that 
the  plaintiff  is  entitled  to  recover  the  prop- 
erty sued  for:  if  he  is  not  entitled  to  re- 
cover the  projierty,  he  is  not  entitled  to  a 
judgment;  and  if  he  is  entitled  to  judg- 
ment, it  must  be  in  the  form  prescribed 
by  this  section.  Washburn  v.  Huntington, 
78  Cal.  573;  21  Pac.  305.  The  evident 
purpose  of  requiring  a  judgment  in  the 
alternative  is,  that  if  the  plaintiff,  after 
obtaining  judgment  for  the  [possession  of 
the  property,  is  unable  to  obtain  a  de- 
livery, he  may,  in  the  same  action,  have 
a  judgment  for  its  value:  the  primary 
object  is  to  recover  the  jDOSsession;  but  if 
the  plaintiff  has  obtained  possession  be- 
fore judgment,  there  is  no  occasion  for 
any  judgment  for  its  value,  as  the  condi- 
tion is  wanting  to  authorize  the  clause  in 
the  judgment,  "if  delivery  cannot  be  had"; 
the  plaintiff  need  not  avail  himself  of  the 
provisional  remedy  for  obtaining  posses- 
sion prior  to  judgment,  or  if  he  does,  the 
defendant  may  have  retaken  the  property, 
or,  without  retaking  it,  may  obtain  judg- 
ment for  its  return:  in  either  of  these 
cases,  the  judgment  must  be  in  the  alterna- 
tive, in  order  that,  in  case  a  delivery  can- 
not be  had,  the  prevailing  party  may 
recover  the  value  of  the  property,  or  in 
order  to  determine  the  amount  to  be  re- 
covered from  the  sureties  on  the  under- 
taking. Claudius  v.  Aguirre,  89  Cal.  501; 
26  Pac.  1077.  A  judgment  for  the  value, 
without  the  alternative  for  the  delivery  of 
the  property,  is  not  void,  even  though 
erroneous.  Donovan  v.  JEtna,  Indemnity 
Co.,  10  Cal.  App.  723;  103  Pac.  365;  Erreca 
V.  Meyer,  142  Cal.  308;  75  Pac.  826.  Where 
the  goods  were  so  confused  and  mixed 
with  other  goods  belonging  to  the  defend- 
ant as  not  to  be  distinguishable,  it  is  not 
necessary  that  a  judgment  for  the  plaintiff 
shall  be  in  the  alternative.  Seligman  v. 
Armando,  94  Cal.  314;  29  Pac.  710;  and 
see  Caruthers  v.  Hensley,  90  Cal.  559;  27 
1  Fair. — 49 


Pac.  411.  \  j>urchaser  from  the  defendant, 
with  full  notice,  and  after  suit  is  com- 
menced, who  procures  himself  to  be  substi- 
tuted as  the  defendant  in  the  cause,  takes 
the  place  of  the  defendant  cum  oiiere,  and 
judgment  for  the  recovery  of  the  ])roperty, 
or  its  value  if  delivery  cannot  be  had,  may 
be  entered  against  him.  Wise  v.  Collins,  121 
Cal.  147;  53  Pac.  640.  A  defendant,  who 
recovers  a  judgment,  where  the  [»roperty 
has  been  delivered  to  the  |)laii)tiff  is  en- 
titled to  a  judgment  for  a  return  of  all  the 
property,  and  if  it  cannot  be  rcturne<l,  then 
to  a  judgment  for  the  value  of  the  whole. 
Whetmore  v.  Kupe,  65  Cal.  237;  3  Pac.  851. 
The  alternative  judgment  in  favor  of  the 
defendant  for  the  return  of  the  property, 
or  the  value  thereof,  is  proper,  where  the 
answer  claims  a  return,  and  the  court, 
jury,  or  referee  finds  the  value  of  the 
property,  and  that  the  defendant  is  en- 
titled to  a  return  thereof.  Pico  v.  Pico, 
56  Cal.  453.  A  })rayer,  in  the  answer,  fqr 
the  return  of  the  property,  is  sufficient  to 
justify  a  judgment  for  its  return,  or  its 
value  in  case  a  return  cannot  be  had. 
Myers  v.  Moulton,  71  Cal.  498;  12  Pac. 
505.  To  enable  the  defendant  to  obtain 
the  value  of  the  pro})erty  on  judgment  of 
dismissal  against  the  plaintiff  for  failure 
to  appear,  the  answer  must  contain  some 
allegation  or  prayer  relative  to  the  change 
of  possession  from  defendant  to  plaintiff: 
the  judgment  of  return  or  value  is  in  the 
nature  of  a  cross-judgment,  and  must  be 
based  upon  proper  averments.  Gould  v. 
Scannell,  13  Cal.  430.  Where  there  is  no 
prayer,  claim,  or  demand  of  any  kind,  in 
the  answer,  for  a  return  of  the  property, 
or  its  value,  a  judgment  for  its  return  to 
the  <lefeudant,  or  its  value  in  case  a  return 
cannot  be  had,  cannot  stand.  Banning  v. 
Marleau,  101  Cal.  238;  35  Pac.  772.  Under 
§  627,  ante,  the  jury  are  authorized  to 
find  the  value  of  the  property  if  their  ver- 
dict is  in  favor  of  the  plaintiff,  only  if 
the  property  has  not  been  delivered  to 
him,  and,  e  couverso,  if  the  projierty  has 
been  delivered  to  him,  they  are  not  re- 
quired to  find  the  value;  and  in  the  ab- 
sence of  such  finding,  there  is  no  verdict 
upon  which  to  base  an  alternative  judg- 
ment. Claudius  v.  Aguirre,  89  Cal.  501; 
26  Pac.  1077.  The  defendant  is  entitled 
to  the  return  of  the  property,  when  the 
action  is  dismissed;  and  it  is  a  matter  of 
no  concern  to  the  plaintiff  whether  the 
judgment  is  in  the  alternative  or  not,  as 
he  has  no  option  as  to  whether  he  shall 
pay  for  or  return  the  i)ropertv.  Kneebone 
v.'Kneebone,  83  Cal.  645;  23  Pac.  1031. 
Where  the  plaintiff  gives  a  bond,  and  takes 
possession  of  the  property  prior  to  the  com- 
mencement of  the  action,  an  alternative 
judgment  for  value  is  immaterial,  though 
for  too  large  an  amount.  California  Cured 
Fruit  Ass'n  v.  Stelling,  141  Cal.  713;  75 
Pac.    320.     The    alternative   judgment    for 


§667 


MANNER  OF  GIVING  AND   ENTERING   JUDGMENT. 


770 


value  cannot  be  entered,  unless  it  is  found 
that  the  plaintifif  is  entitled  to  recover  the 
property;  and,  in  order  that  it  may  be  so 
found,  there  must  be  a  showing  that  the 
defendant  had  possession  of  the  property 
at  the  time  the  suit  was  commenced.  Ri- 
ciotto  V.  Clement,  94  Cal.  105;  29  Cal.  414. 
A  judgment  for  the  return  of  the  property 
or  the  value  thereof,  but  which  omits  from 
the  judgment  for  value  the  dependent 
clause,  "in  case  a  return  cannot  be  had," 
is  not  sufficient  in  form  or  substance. 
Etehepare  v.  Aguirre,  91  Cal.  288;  25  Am. 
St.  Eep.  180;  27  Pac.  668;  and  see  Wash- 
burn V.  Huntington,  78  Cal.  573;  21  Pac. 
305.  Where  the  defendant  disposes  of  a 
large  portion  of  the  property  sued  for, 
and  appropriates  the  proceeds  thereof,  the 
court  is  not  bound  to  find  the  value  of  the 
articles  which  can  be  returned,  or  to  enter 
a  judgment  in  the  alternative:  a  judgment 
may  be  rendered  for  the  value  of  the  en- 
tire property.  Burke  v.  Koch,  75  Cal.  356; 
17  Pac.  228.  The  usual  judgment  in  an 
action  of  detinue  is  in  the  alternative,  that 
the  plaintiff  recover  possession  of  the  prop- 
erty, or  its  value  in  case  delivery  cannot 
be  had;  but  where  delivery  cannot  be  had, 
the  defendant  is  not  prejudiced  by  a  judg- 
ment for  the  value  only,  without  the 
alternative.  Faulkner  v.  First  Nat.  Bank, 
130  Cal.  258;  66  Pac.  463;  and  see  Brown 
V.  Johnson,  45  Cal.  76;  Thomas  v.  With- 
erby,  61  Cal.  92;  44  Am.  Rep.  542;  Burke 
V.  Koch,  75  Cal.  356;  17  Pac.  228.  A  judg- 
ment for  the  value  of  the  property,  with- 
out the  alternative  for  recovery  of  pos- 
session, may  be  had,  where  it  is  shown 
that  the  judgment  for  its  delivery  would 
be  unavailing  (Erreca  v.  Meyer,  142  Cal. 
308;  75  Pac.  826;  Donovan  v.  ^tna  In- 
demnity Co.,  10  Cal.  App.  723;  103  Pac. 
365) ;  and  where  the  delivery  of  all  but 
a  small  portion  is  impossible,  judgment  for 
its  value,  without  the  alternative  of  de- 
livery, is  proper.  Erreca  v.  Meyer,  142  Cal. 
308;  75  Pac.  826.  A  lien-holder,  in  claim 
and  delivery  to  recover  the  property  upon 
which  he  has  a  lien,  is  not  entitled  to  judg- 
ment for  the  full  value  of  the  property 
in  case  delivery  cannot  be  had,  but  only 
for  the  amount  of  his  lien  or  s])ecial  prop- 
erty therein.  Wilkerson  v.  Thorp,  128  Cal. 
221;  60  Pac.  679.  The  judgment  may  be 
for  more  than  the  value  of  the  goods,  as 
alleged  in  the  complaint,  provided  the  dam- 
ages alleged  are  larger  than  the  judgment; 
and  a  mistake  as  to  the  value  of  goods, 
which  is  only  one  predicate  of  the  re- 
covery, does  not  estop  the  plaintiff  from 
recovering  a  sum  commensurate  with  the 
loss  or  injury  sustained  by  him,  if  the 
amount  so  recovered  be  within  the  ad 
damnum  of  the  writ.  Coghill  v.  Boring, 
15  Cal.  213.  Where  the  jury,  in  rendering 
ia  verdict  for  the  plaintiff,  fails  to  find  the 
value  of  the  property,  and  the  court  does 
not  order  it   to  be  corrected   in  that   par- 


ticular, a  judgment  entered  for  the  value 
is  erroneous  (Stewart  v.  Taylor,  68  Cal. 
5;  8  Pac.  605);  and  where  the  property  is 
in  the  defendant's  hands,  a  verdict  for  the 
plaintiff  for  its  value  is  erroneous:  under 
such  verdict,  and  judgment  thereon,  the 
defendant  cannot  elect  to  deliver  the  prop- 
erty.   Noreross  v.  Nunan,  61  Cal.  640. 

Judgment  for  possession.  ^Vhere  the 
property  was  delivered  to  the  plaintiff 
prior  to  the  trial  of  the  cause,  judgment 
for  the  possession  thereof,  without  the 
alternative  for  value,  is  not  erroneous. 
Caruthers  v,  Hensley,  90  Cal.  559;  27  Pac. 
411. 

Damages  for  the  detention.  Under  this 
section,  when  a  delivery  of  the  property 
cannot  be  had,  the  value  of  the  property 
and  damages  for  the  detention  are  sepa- 
rate and  independent  items,  and  the  dam- 
ages which  may  be  pleaded,  proved,  and 
recovered  for  the  detention  may  be  general 
or  special,  or  both.  Morris  v.  Allen,  17 
Cal.  App.  684;  121  Pac.  690.  Damages 
amounting  to  the  value  of  the  property 
sued  for  may  be  had  in  an  action  for  per- 
sonal property  or  its  value,  although  claim 
and  delivery  does  not  lie  for  the  property, 
where  the  complaint  is  sufficiently  broad 
to  show  such  damage,  and  the  same  is 
within  the  issues  framed  by  the  pleadings. 
Dennison  v.  Chapman,  105  Cal.  447;  39  Pac. 
61.  The  rule  is,  that,  where  the  property 
converted  has  a  fixed  value,  the  measure 
of  damages  is  that  value,  with  legal  in- 
terest from  the  time  of  the  conversion; 
and  when  the  value  is  fluctuating,  the 
plaintiff  may  recover  the  highest  value  at 
the  time  of  the  conversion,  or  at  any  time 
afterwards.  Douglass  v.  Kraft,  9  Cal.  562; 
Hamer  v.  Hathaway,  33  Cal.  117.  The  full 
value  of  goods  at  the  time  of  the  taking, 
and  not  what  they  cost  the  plaintiff,  is  the 
measure  of  damages.  Pelberg  v.  Gorham, 
23  Cal.  349. 

Return  of  part  of  property  as  satisfac- 
tion of  judgment.  The  return  of  part  of 
the  property  sued  for,  by  the  sheriff,  under 
execution,  does  not  satisfy  the  judgment, 
and  execution  may  be  enforced  for  the 
value  of  the  rest  of  the  property.  Black 
V.  Black,  74  Cal.  520;  16  Pac.  311.  That 
the  plaintiff  has  the  right  to  retain  such 
articles  sued  for  as  he  may  choose,  and 
pay  to  the  defendant  the  value  thereof, 
notwithstanding  the  court  finds  that  the 
defendant  is  the  owner  thereof,  is  a 
proposition  that  cannot  be  sustained  upon 
any  principle  of  law.  Black  v.  Hilliker, 
130  Cal.  190;  62  Pac.  481.  A  wrong-doer 
may  not,  through  his  wrong-doing,  acquire 
the  privilege  of  restoring  to  its  owner  a 
particular  article,  or,  instead,  of  paying 
its  value  as  found  by  a  jury:  the  judg- 
ment is  primarily  for  the  return  of  all  the 
property  wrongfully  taken  or  withheld, 
and  the  judgment  for  its  value  comes  into 
operation  only  in  case  a  return  cannot  be 


771 


JUDGMENT    PAYAHLI-:    IN    SPECIFIC    KIND    OF    MONKY. 


§667 


had.     Whctmore    v.    Riijic,   G5    fa).    SM ;    3 
I'ac.  S;-l. 

Judgment  payable  in  particular  kind  of 
money.  At  coniinon  law,  the  provision  for 
the  payment  of  the  juiiynuMit  in  any  s])eei- 
fied  kind  of  money  was  unUnown,  and  was 
also  unknown  to  our  law  until  the  enact- 
ment of  the  "Specific  Contract  Act,"  in 
April,  1863,  which  ingrafted  a  new  remedy 
on  the  relief  of  a  general  nature  that 
courts  of  conimondaw  jurisdiction  could 
afford,  one  of  the  remedies  peculiar  to 
courts  of  equity,  which  in  its  nature  is 
analogous  to  a  decree  for  a  specific  per- 
formance, and  it  restricted  the  relief  to 
a  specified  class  of  cases:  it  cannot  be  ex- 
tended beyond  the  eases  expressly  pro- 
vided for  by  its  terms,  and  therefore  does 
not  apply  to  an  action  upon  a  judgment 
rendered  prior  to  its  passage.  Reed  v.  El- 
dredge,  27  Cal.  346.  Where  no  contract 
to  pay  in  a  specific  kind  of  money  exists, 
the  debtor  may  discharge  his  obligation  by 
payment  in  lawful  money;  but  the  court 
cannot,  by  its  judgment,  say  that  the  pay- 
ment shall  be  made  in  any  one  kind  of 
money  in  preference  to  another;  and  a 
verdict  in  an  action  for  services,  where 
no  agreement  in  any  specific  kind  of  money 
was  shown,  may  be  based  upon  the  value 
of  the  services  in  legal  tender.  Spencer  v. 
Prindle,  28  Cal.  276^  A  debt  secured  by 
note  and  mortgage  executed  before  the 
passage  of  the  legal-tender  act  of  1862, 
may  be  discharged  in  legal-tender  notes, 
if  the  instruments  contain  no  stipulation 
requiring  payment  to  be  made  in  coin. 
Belloc  v.  Davis,  38  Cal.  242.  A  contract 
to  pay  money  in  gold  coin  of  the  United 
States,  or  the  equivalent  of  such  gold  coin 
if  paid  in  legal  currency,  is  a  contract  to 
pay  the  given  number  of  dollars  in  any 
kind  of  lawful  money  of  the  United  States, 
and  cannot  be  enforced  in  any  specific 
kind  of  money;  and  the  statute  does  not 
authorize  the  entry  of  an  alternative  judg- 
ment upon  such  contract,  payable  in  gold 
coin,  or  its  equivalent  in  legal-tender  notes. 
Reese  v.  Stearns,  29  Cal.  273.  A  verbal 
promise  to  pay  a  partnership  debt  in  gold 
coin  may  be  enforced,  if,  thereafter,  one 
of  the  partners,  in  behalf  of  the  firm,  in 
writing,  agrees  to  make  payment  in  such 
coin.  Meyer  v.  Kohn,  29  'Cal.  278.  An 
agreement  to  pay  a  note  and  mortgage  in 
gold  coin,  made  subsequently  to  the  execu- 
tion thereof,  to  secure  an  extension  of  the 
time  of  payment,  is  based  upon  a  sufficient 
consideration.  Belloc  v.  Davis,  38  Cal.  242. 
The  verdict  need  not  provide  for  payment 
in  gold  coin,  in  order  that  a  judgment 
for  such  may  be  entered,  where  it  is  ad- 
mitted by  the  pleadings  that  the  debt  was 
so  payable.  Winans  v.  Hassey,  48  Cal.  634. 
The  value  of  property  in  gold  coin  and  in 
greenbacks,  or  legal-tender  notes,  must, 
by  legal  conclusion,  be  the  same;  and  one 
unlawfully  converting  property  is  not  in- 


jured by  a  judgment  entered  against  him, 
payable  in  legal-tender  notes.  Tarpy  v. 
Shepherd,  30  Cal.  lf>0.  .\  decree  made  by  a 
probate  court,  reipiiringan  executor  to  jiay 
over  to  creditors  or  legatees  numey  in  his 
hands,  may  compel  payment  in  the  kind  of 
money  received  by  the  executor.  Magraw 
V.  McClynn,  26  Cal.  421.  In  an  action  of 
slander,  where  the  jury  assess  the  damages 
for  the  plaintiff  in  gold  coin,  the  court 
may  disregard  so  much  of  the  venlict  as 
relates  to  coin,  and  enter  a  juilgment  which 
does  not  specify  any  jiarticular  kind  of 
money.  Chamberlin  v.  Vance,  51  Cal.  75. 
In  ejectment,  if  the  court  finds  the  value 
of  the  use  and  occupation  of  the  premises 
in  both  gold  coin  and  currency,  a  general 
judgment  for  an  amount  equal  to  the  cur- 
rency valuation  is  correct.  Carpentier  v. 
Small,  35  Cal.  346. 

Judgment  payable  in  gold  coin  proper 
when.  A  judgment  for  wages  may  be 
made  payable  in  gold  coin,  where  there 
was  a  promise  to  pay  in  gold  coin  (Brad- 
bury V.  Cronise,  46  Cal.  287);  and  a  judg- 
ment payable  in  United  States  gold  coin  is 
proper,  where  the  note  on  which  it  was 
rendered  was  payable  in  "U.  S.  gold  coin." 
Sheehy  v.  Chalmers,  4  Cal.  Unrep.  617; 
36  Pac.  514.  An  account  stated,  signed  by 
the  party  charged,  and  containing  the 
clause,  "payable  in  gold  coin  (United 
States),  according  to  contract,"  is  suffi- 
cient to  support  a  judgment  payable  in 
gold  coin.  Carey  v.  Philadelphia  etc.  Pe- 
troleum Co.,  33  Cal.  694.  A  verdict  for  a 
sum  of  money  generally,  will  support  a 
judgment  payable  in  gold  coin,  where  the 
obligation  so  to  pay  is  admitted  by  the 
pleadings.  Pinkerton  v.  Woodward,  33 
Cal.  557;  91  Am.  Dec.  657.  A  default 
judgment  on  a  note  payable  in  gold  coin 
should  be  made  payable  in  like  gold  coin. 
Harding  v.  Cowing,  28  Cal.  212.  Where 
payments*  promised  and  secured,  are  to 
be  made  in  United  States  gold  coin,  or  in 
default  of  that,  then  in  legal-tender  notes 
at  their  market  value  in  gold  coin,  a  judg- 
ment for  gold  coin  is  proper.  Burnett  v. 
Stearns,  33  Cal.  46S.  In  an  action  for 
money  had  and  received,  a  judgment  pay- 
able in  gold  coin  is  proper,  where  such 
money  was  received  in  gold  coin.  Wendt 
V.  Ross,  33  Cal.  650.  A  direct  and  specific 
contract  to  pay  in  gold  coin  is  not  vitiated 
by  an  independent  promise  to  pay  an 
additional  sum  if  not  paid  in  gold  coin. 
Lane  v.  Gluckauf.  28  Cal.  288;  87  Am.  Dec. 
121 :  Reese  v.  Stearns,  29  Cal.  273. 

Judgment  payable  in  gold  coin  improper 
when.  The  plaintiff  is  not  entitle<l  to  a 
judgment  in  gold  coin,  unless  the  complaint 
avers  that  there  was  a  contract  in  writing, 
or  that  it  was  understood  and  agreed  by 
the  parties,  that  payment  should  be  made 
in  gold  coin.  Goldsmith  v.  Sawyer,  46  Cal. 
209.  Where  there  is  no  allegation  in  the 
complaint    that    there    was    an    agreement 


§667 


MANNER  OF   GIVING  AND  ENTERING   JUDGMENT. 


772 


to  par  in  gold  coin,  the  court  eaunot  ren- 
der a"^judgment  payable  in  gold  coin,  even 
if  the  verdict  of  the  jury  is  for  gold  coin, 
Watson  V.  San  Francisco  etc.  R.  R.  Co., 
50  Cal.  523.  A  judgment  for  gold  coin 
only,  is  erroneous,  where  the  note  sued  on 
specified  payment  to  be  made  in  United 
States  gold  and  silver  coin.  Burnett  v. 
Stearns,  33  Cal.  468.  Where  the  note  sued 
on  was  payable  in  money  generally,  the 
clerk  of  the  court  has  no  authority,  after 
default,  to  enter  a  judgment  payable  in 
gold  coin,  although  the  complaint  prays 
for  such  judgment.  Wallace  v.  Eldredge, 
27  Cal.  495.  Where  a  promissory  note  has 
the  words  "in  gold  coin"  after  the  words 
"value  received,"  but  does  not  contain  the 
words  "in  gold  coin"  immediately  after 
the  amount  promised  to  be  paid,  judgment 
should  not  be  rendered  payable  in  gold 
coin,  although  there  is  in  the  instrument 
a  subsequent  promise  to  pay  the  difference 
between  the  value  of  gold  coin  and  the 
paper  currency  of  the  United  States,  if  not 
paid  in  gold  coin.  Lamping  v.  Hyatt,  27 
Cal.  99;  Reese  v.  Stearns,  29  Cal.  273.  A 
judgment  payable  in  gold  coin  cannot  be 
recovered  upon  an  open  account  or  account 
stated,  unless  there  is  a  promise  in  writing 
to  pay  the  balance  in  such  coin.  Howard 
V.  Roeben,  33  Cal.  399.  A  general  finding 
of  value,  without  a  specification  that  it 
is  in  gold  coin,  will  not  support  a  judgment 
payable  in  gold  coin.  North  Pacific  R.  R. 
Co'  V.  Reynolds,  50  Cal.  90.  A  judgment 
against  the  sureties  on  the  bond  of  a 
guardian  should  not  be  made  payable  in 
gold  coin,  where  the  bond  does  not  so  pro- 
vide, although  the  principal  was  bound  to 
pay  in  gold  coin  the  sum  for  which  the 
sureties  were  liable.  Fox  v.  Minor,  32  Cal. 
Ill;  91  Am.  Dec.  566:  Mendocino  County 
V.  Morris,  32  Cal.  145.  The  judgment  on 
a  contract  made  by  a  board  of  supervisors 
for  street  improvements,  against  \he  owner 
of  the  property,  cannot  be  made  payable 
in  gold  coin,  it  being  on  a  liability  founded 
upon  a  contract  to  which  he  was  not  a 
party,  and  by  which  he  was  bound  only 
by  force  of  the  statute.  Ferine  Contract- 
ing etc.  Co.  V.  Quackenbush,  104  Cal.  684; 
38  Pac.  533.  Where  an  executor  received 
legal-tender  notes  in  payment  for  prop- 
erty of  estate  sold  by  him,  it  is  error  for 
the  court  to  order  payment  to  be  made  to 
creditors  of  the  estate  in  gold  coin.  Estate 
of  Den,  39  Cal.  70. 

Costs.  Where  the  plaintiff's  complaint 
states  the  value  of  the  property  at  a  sum 
exceeding  two  hundred  dollars,  the  defend- 
ant is  entitled  to  costs  if  he  reeover.s  judg- 
ment, although  the  jury  fails  to  find  the 
value  of  the  property.  Edgar  v.  Gray,  5 
Cal.  267.  Costs  may  be  allowed  the  plain- 
tiff, where  it  is  found  that  he  is  entitled 
to  part  of  the  property,  am]  the  defendant 
to  part,  and  the  part  awarded  the  plaintiff' 
is  of  a  value  exceeding  three  hundred  dol- 


lars. Rohr  V.  McCaig,  33  Cal.  309.  An 
act  providing  that  the  prevailing  party 
shall  be  allowed  a  percentage  on  the  amount 
recovered  in  litigated  cases  in  San  Fran- 
cisco, did  not  include  a  judgment  in  the 
alternative  in  an  action  of  replevin;  the 
amount  recovered  not  being  the  primary  , 
and  absolute  result  of  the  judgment. 
Wheatland  Mill  Co.  v.  Pirrie,  89  Cal.  459; 
26  Pac.  964.  Where  the  defendant  has 
come  rightfully  into  the  possession  of  the 
property,  and  has  never  manifested  any 
disposition  to  claim  title  to  it,  and  has 
shown  a  willingness  to  surrender  it,  he 
cannot  be  made  to  answer  for  costs,  with- 
out proof  of  demand  made  upon  him, 
California  Cured  Fruit  Ass'n  v.  Stelling, 
141  Cal.  713;  75  Pac.  320. 

Bond  staying  execution.  If  a  judgment 
is  in  the  ordinary  form  of  one  upon  claim 
and  delivery,  a  bond  to  stay  execution 
thereon  must  be  as  prescribed  in  §  943, 
post.  United  States  Fidelity  etc.  Co.  v. 
More,  155  Cal.  415;  101  Pac.  302. 

Liability  of  surety  on  replevin  bond. 
In  an  action  upon  a  replevin  bond,  the 
surety  is  liable  to  pay  a  judgment  for  the 
value  of  the  property.  Donovan  v.  ^tna 
Indemnity  Co.,  10  Cal.  App.  723;  103  Pac, 
365. 

Enjoining  enforcement  of  judgment. 
The  enforcement  of  an  alternative  judg- 
ment in  replevin  will  be  enjoined,  where, 
during  the  pendency  of  the  suit,  and  after 
issue  joined  therein,  the  property  was  all 
returned  to  the  plaintiff  in  the  replevin 
suit,  and  the  defendant  was  prevented  by 
the  court  from  showing  that  fact  under 
the  pleadings,  and  after  the  judgment,  and 
within  the  time  allowed  to  move  for  a  new 
trial,  it  was  agreed  between  the  parties 
that  upon  the  payment  of  a  specified  sum 
the  judgment  should  be  satisfied,  and,  rely- 
ing upon  the  agreement,  no  such  motion 
was  made,  and  the  tender  of  the  amount 
agreed  upon  was  rejected  after  the  time 
for  such  motion  had  elapsed.  Thompson 
v.  Laughlin,  91  Cal.  313;  27  Pac.  752. 
W^here  the  defendant  in  claim  and  delivery 
obtained  judgment  for  the  return  of  the 
property,  or  its  value,  and  the  plaintiff 
tendered  the  property  and  costs  in  satis- 
faction of  the  judgment,  which  was  re- 
fused, and  the  defendant  issued  execution 
for  its  value,  which  the  court  refused  to 
recall  on  the  plaintiff's  motion,  the  plain- 
tiff, who  has  appealed  from  the  order 
denying  such  motion,  may  maintain  an 
action  in  equity  to  enjoin  further  pro- 
ceedings under  the  judgment,  pending  the 
appeal.  Eppinger  v.  Scott,  130  Cal.  275; 
62  Pac.  460. 

Appeal,  in  general.  A  judgment  in  favor 
of  the  assignee  of  an  insolvent,  in  claim 
and  delivery,  for  possession  of  the  prop- 
erty claimed,  without  costs,  or  an  alterna- 
tive judgment  for  value,  may  be  appealed 
from    by    the    insolvent,   as    a    "party    ag- 


773 


I'HESl  AlPTlOXS    ON    APPEAL — MODIFICATION — REVERSAL. 


§667 


grieved,"  notwithstanding  his  disclaimer  of 
all  interest  in  the  [iroi)erty  sued  for,  since, 
if  the  denials  of  his  answer  were  sustained, 
he  would  be  entitled  to  jud^inient  that  the 
plaintiff  take  nothing,  and  that  the  defend- 
ant recover  his  costs.  Martin  v.  Porter, 
84  C'al.  470;  24  Pae.  109.  A  judgment  for 
the  plaintiff  is  immediately  enforceable, 
unless  the  defendant  gives  a  stay  bond; 
and  the  fact  that  the  defendant  has  given 
a  bond  for  redelivery  does  not  entitle  him 
to  an  order  of  the  appellate  court  staying 
proceedings  on  the  judgment  appealed 
from.  Swasey  v.  Adair,  "S8  Cal.  203;  26 
Pae.  83.  ^Vhe^e  the  value  alleged  in  the 
complaint  is  not  denied  by  the  answer,  an 
objection  to  the  admission  of  evidence  of 
the  value  should  be  sustained;  but  error 
in  admitting  such  evidence  is  without 
prejudice  to  the  defendant,  where  the  jury 
fin(ls  a  lower  value  than  that  alleged. 
Tully  V.  Harloe,  35  Cal.  302;  95  Am.  Dec. 
102.  Where  the  defendant  went  to  trial 
upon  the  theory  that  the  title  or  the  right 
to  the  possession  of  the  property  was  in 
issue,  he  cannot,  upon  appeal,  be  heard, 
for  the  first  time,  to  say  that  there  was 
no  such  issue.  Flinn  v.  Ferry,  127  Cal.  648; 
60  Pae.  434.  Objections  to  the  form  of 
the  verdict,  or  that  excessive  damages  were 
thereby  awarded,  can  only  be  made  avail- 
able on  motion  for  a  new  trial,  or  on  ap- 
peal from  an  order  denying  a  new  trial. 
Campbell  v.  Jones,  41  Cal.  515. 

Direction  of  judgment  on  appeal.  "Where 
no  finding  is  made  on  the  issue  of  value 
and  damage,  the  apfiellate  court  will  not 
direct  final  judgment  to  be  entered.  Thomp- 
son V.  Corpstein,  52  C'al.  653. 

Presumptions  on  appeal.  On  an  appeal 
from  a  judgment  for  the  plaintiff  for  the 
possession  of  personal  property,  without 
the  alternative  for  its  value  in  case  pos- 
session cannot  be  had,  it  will  be  presumed 
that  possession  was  obtained  by  the  plain- 
tiff. Caruthers  v.  Hensley,  90  Cal.  559;  27 
Pae.  411. 

Modification  of  judgment  on  appeal.  On 
appeal,  the  judgment  will  be  modified  to 
make  it  conform  to  the  requirements  of 
this  section,  where,  to  accomplish  this, 
no  other  guide  than  the  plain  provisions 
of  this  section  and  the  findings  on  file  is 
necessary.  Kelly  v.  McKibben,  54  Cal.  192. 
Where  the  defendant  asked  for  a  return 
of  the  property,  and  it  does  not  appear 
that  he  gave  bond  and  sureties  for  its  re- 
turn, it  will  be  presumed,  on  appeal,  that 
it  was  delivered  to  the  plaintiff;  and  where 
the  plaintiff  was  entitled  to  only  part  of 
the  ])roperty,  and  no  relief  was  awarded 
to  the  defendant,  the  judgment  will  be 
modified  so  as  to  require  the  return  of  the 
residue  to  the  defendant.  Ryan  v.  Fitz- 
gerald, 87  Cal.  345;  25  Pae.  546. 

Reversal  of  judgment  on  appeal.  The 
mere   failure   to   iuclude   iu    the   judgment 


a  clause  which  cannot  have  any  operative 
effect,  or  confer  any  right  or  protei'tiou 
ujton  either  the  [daintiff  or  the  defendant, 
such  as  for  the  delivery  of  the  property 
to  the  plaintiff  where  he  already  has  pos- 
session, does  not  affect  the  substantial 
rights  of  either  party,  and  is  not  a  sufll- 
cient  ground  for  the  reversal  of  the  judg- 
ment. Claudius  v.  Aguirre,  89  Cal.  501; 
26  Pae.  1077.  Where,  on  the  trial  of  an 
action  of  replevin,  it  a!>pears  that  the 
property  has  been  hopelessly  lost  or  has 
been  destroyed,  so  that  a  judgment  for  its 
delivery  would  be  unavailing,  a  judgment 
for  damages  alone  is,  at  most,  a  technical 
error,  for  which  the  judgment  will  not  be 
reversed.  Brown  v.  Johnson,  45  C'al.  76. 
A  finding  as  to  value,  made  upon  conflict- 
ing evidence,  will  not  be  disturbed  upon 
appeal.  Roberts  v.  Burr,  135  Cal.  156;  67 
Pae.  46. 

CODE  COMMISSIONERS'  NOTE.  1.  Actions 
to  recover  personal  property.  Damages.  Nicker- 
son  V.  Chalterton.  7  Cal.  568;  Douglass  v.  Kraft, 
9  Cal.  562:  Ilisler  v.  Carr,  34  Cal.  6-U.  [The 
code  commissioners  quote  pp.  419-427  of  the 
opinion  in  th*-  case  of  Pace  v.  Fowler,  39  Cal. 
412;  2  Am.  Rep.  462.]  The  plaintiff  may  recover 
the  value  in  legal-tender  notes.  Tarpy  v.  Shep- 
herd, 30  Cal.  ISO. 

2.   Judgments  payable  in  coin.     Poett  v.  Stearns, 

31  Cal.  7S;  Pinkerton  v.  Vv'oodward,  33  Cal.  557; 
91  Am.  Dec.  657;  Wendt  v.  Ross,  33  Cal.  650; 
Cowing  V.  Rogers,  34  Cal.  648.  Costs  follow  the 
judgment.  Carpentier  v.  Alherton,  25  Cal.  569. 
If  the  note  is  payaVjle  in  gold  and  silver  coin,  it 
is  error  to  enter  judgment  for  gold  coin  alone. 
Burnett  v.  Stearns,  33  Cal.  468.  In  an  action  of 
forcible  entry  and  detainer,  judgment  cannot  be 
entered  payable  in  coin.  More  v.  Del  Valle,  28 
Cal.  170.  In  an  action  against  the  principal 
sureties,  on  an  official  bond  containing  no  promise 
to  pay  in  coin,  judgment  can  only  be  rendered  in 
monev    generally.     Mendocino    County    v.    Morris, 

32  Cal.  145;  Fox  v.  Minor,  32  Cal.  ill;  91  Am. 
Dec.  566.  If  the  jury,  \vithout  instruction  from 
the  court,  return  a  verdict  payable  in  gold  coin, 
there  beinc  no  evidence  that  either  on  or  after 
striking  a  balance  between  the  parties  the  defend- 
ant promised  in  writing  to  pay  in  gold  coin,  the 
judgment  cannot  stand.  Howard  v.  Roeben,  33 
Cal.  399.  In  an  action  based  on  a  general  in- 
debtedness without  a  written  contract  to  pay.  or 
on  a  written  contract  to  pay  money  generally, 
without  designating  the  kind,  the  court  cannot 
render  a  judgment  payable  in  coin.  Curiae  v. 
Abadie,  25  Cal.  502.  If  a  promissory  note  has 
the  words  "in  gold  coin,"  after  the  words  "value 
received,"  but  does  not  contain  the  words  "in 
gold  coin"  in  the  promise  to  pay,  judgment  can- 
not be  rendered  payable  in  gold  cuin,  although 
there  is  in  the  instrument  a  subsequent  promise 
to  pay  the  difference  between  the  value  of  gold 
coin  and  the  paper  currency  of  the  United  States, 
if  not  paid  in  gold  coin.  Lamping  v.  Hyatt,  27 
Cal.  102;  Fo.x  v.  Minor,  32  Cal.  Ill;  91  Am. 
Dec.  566;  Mendocino  County  v.  Morris,  32  Cal. 
149.  In  an  action  upon  a  contract  to  pay  in  gold 
coin  of  the  United  States,  or  the  equivalent  of 
such  gold  coin,  if  paid  in  legal  currency,  judg- 
ment in  the  alternative  cannot  be  entered,  nor 
can  a  judgment  payable  in  any  specific  kind  of 
money.  Reese  v.  Stearnes,  29  Cal.  273.  Where 
the  value  of  the  premises  is  found  both  in  coin 
a!id  in  currency,  judgment  may  be  general,  and 
for  the  currency  value.  Carpentier  v.  Small.  35 
Cal.  346;  see  also  Spencer  v.  Prindle,  28  Cal. 
276. 


§668 


MANNER   OF  GIVING   AND   ENTERING    JUDGMENT. 


774 


§  668.  Judgment-book  to  be  kept  by  the  clerk.  The  clerk  must  keep, 
with  the  records  of  the  court,  a  book  to  be  called  the  "judgment-book," 
in  which  judgments  must  be  entered 

Register  of  actions.    Post,  §  1052. 

Legislation  §  668.  Enacted  March  11,  18T3; 
based  on  Practice  Act,  §  201  (^ew  York  Code, 
§  280),  which  read:  "The  clerk  shall  keep  among 
the  records  of  the  court  a  book  for  the  entry  of 
judgments,  to  be  called  the  'judgment-book,'  in 
which  each  judgment  shall  be  entered,  and  shall 
specify  clearly  the  relief  granted,  or  other  deter- 
mination   of    the    action." 

Judgment-book.  The  direction  of  this  sec- 
tion, to  enter  the  judgment  in  the  judgment- 
book,  is  mandatory:  it  imposes  a  public 
duty  upon  a  ministerial  officer.  Page  v. 
Superior  Court,  76  Cal.  372;  18  Pac.  385. 
The  entry  of  judgment  is  purely  a  minis- 
terial act.  Hoover  v.  Lester,  16  Cal.  App. 
1.53;  110  Pac.  382;  Marshall  v.  Taylor,  97 
Cal.  422;  32  Pac.  515.  The  judgment-book 
is  part  of  the  records  of  the  court,  and 
the  final  repository  of  the  determination 
of  the  court  upon  every  cause  which  passes 
to  judgment,  and  the  most  permanent 
memorial  of  those  matters  ordained  by 
law  to  be  kept;  being  a  judicial  record, 
it  is  competent  evidence  of  matters  con- 
sidered and  passed  upon  by  the  court,  and 
in  case  of  the  loss  or  absence  of  the  judg- 
ment roll,  it  is  competent  evidence  of  the 
final  adjudication  in  the  suit:  so  its  re- 
citals, showing  the  acquisition  of  juris- 
diction over  the  defendant  are  evidence 
of  the  facts  recited,  the  judgment  thus 
carrying  on  its  face  the  evidence  of  its 
own  validity.  Simmons  v.  Threshour,  118 
Cal.  100;  50  Pac.  312.  The  register  of 
actions  provided  for  by  §  1052,  post,  is 
distinct  from  the  judgment-book  provided 
for  bv  this  section.  Wolters  v.  Rossi,  126 
Cal.  644;  59  Pac.  143. 

Matters  which  should  be  entered.  The 
final  action  of  the  court  upon  the  issue 
made  by  the  pleadings,  and  which  is  the 
judicial  determination  of  that  issue,  is  to 
be  recorded  by  the  clerk  in  the  judgment- 
book.  Von  Schmidt  v.  Widber,  99  Cal. 
511;  34  Pac.  109.  The  determination  by 
the  court  of  the  amount  for  which  the 
defendant  was  liable  to  the  plaintiff  in  an 
action  to  foreclose  a  lien,  providing  for 
the  sale  of  property,  is  a  judgment  of  the 
court,  and  is  properly  entered  by  the  clerk 
in  the  judgment-book.  Hines  v.  Miller,  126 
Cal.  683;  59  Pac.  142.  An  action,  directed 
by  the  jdaintiff  to  be  dismissed,  is  not  dis- 
missed until  the  judgment  of  dismissal  is 
entered  in  the  judgment-book.  Page  v. 
Superior  Court,  76  Cal.  372;  18  Pac.  385. 
An  entry  in  the  clerk's  register  does  not 
constitute  a  dismissal:  the  action  is  not 
dismissed,  so  as  to  deprive  the  court  of 
control  over  the  cause,  until  the  judgment 
has  been  entered.  Page  v.  Page,  77  Cal.  83; 
19  Pac.  183;  Wolters  v.  Rossi,  126  Cal.  644; 
59  Pac.  143. 


Entry  valid  when.  To  be  valid,  the 
clerk's  entry  of  a  judgment  must  conform 
strictly  to  the  statute.  Old  Settlers  Invest- 
ment Co.  V.  White,  158  Cal.  236;  110  Pac. 
922.  The  entry  of  judgment  is  sufficient 
if  it  contains  the  substance  of  the  judg- 
ment. Hoover  v.  Lester,  16  Cal.  App.  151; 
116  Pac.  382.  The  entry  of  a  judgment 
consists  in  the  recording  of  it  in  the 
judgment-book;  in  a  legal  sense,  there  can 
be  no  record  of  a  judgment  until  it  is  so 
entered.  Wilson  v.  Durkee,  20  Cal.  App. 
492;  129  Pac.  617.  It  is  not  material 
whether  the  judge  signs  the  judgment  or 
not.  Hoover  v.  Lester,  16  Cal.  App.  151; 
116  Pac.  382;  Crim  v.  Kessing,  89  Cal.  478; 
23  Am.  St.  Rep.  491;  26  Pac.  1074.  A 
judgment  spread  in  writing  on  the  court- 
room blotter,  on  the  register  of  actions, 
and  on  the  minutes  of  the  court,  is  not 
entered  in  the  judgment-book.  Wood  v. 
Missouri  Pacific  Ry.  Co.,  152  Cal.  344;  92 
Pac.  868. 

False  certificate  of  clerk.  In  the  whole 
range  of  the  duties  of  the  clerk,  there  is 
none  more  important  than  the  clerical  duty 
of  keeping  a  true  history  of  the  time  of 
the  entry  of  judgment  and  of  the  filing 
of  the  judgment  roll,  these  matters  being 
the  initial  point  of  many  rights:  willfully 
to  make  a  false  certificate  as  to  these 
matters  is  a  violation  of  official  duty. 
Menzies  v.  Watson,  105  Cal.  109;  38  Pac. 
641. 

Appeal.  A  final  determination,  upon  the 
pleadings,  of  the  relative  rights  of  the 
parties,  must  be  entered  in  the  judgment- 
book,  and  no  appeal  can  be  taken  there- 
from until  its  entry  in  such  book.  Wood 
V.  Missouri  Pacific  Ry.  Co.,  152  Cal.  344; 
92  Pac.  868.  The  time  of  the  entry  of 
judgment  in  the  judgment-book,  and  not 
the  time  of  its  entry  in  the  minutes  of  the 
court,  is  the  period  from  which  the  time 
to  appeal  commences  to  run.  Thomas  v. 
Anderson,  55  Cal.  43;  Tyrrell  v.  Baldwin, 
72  Cal.  192;  13  Pac.  475.  An  appeal  taken 
before  the  judgment  is  eutereil  of  record 
is  premature,  and  must  be  dismissed  (Home 
of  Inebriates  v.  Kaplan,  84  Cal.  486;  24 
Pac.  119);  but  where  the  notice  of  appeal 
from  the  judgment  is  filed  on  the  day  on 
which  the  judgment  is  entered,  the  appeal 
is  not  premature,  and  will  not  be  dismissed, 
although  the  notice  was  served  on  the 
preceding  day.  Tyrrell  v.  Baldwin,  72  Cal. 
192;  13  Pac.  475.  An  order  of  court  dis- 
missing an  action  for  failure  to  return 
summons,  though  entered  in  the  minutes 
of  the  court,  and  not  in  the  judgment-book, 
is  a  final  judgment,  and  appealable.  Marks 
V.  Keenan,  140  Cal.  33;  73  Pac.  751. 


775 


DEATH    OF    PARTY    AFTER    VERDICT JUDGMENT    ROLL.  §§669,670 


§  669.  If  a  party  die  after  verdict,  judgment  may  be  entered,  but  not 
to  be  a  lien.  If  a  party  die  after  a  verdict  or  decision  upon  any  issue  of 
fact,  and  before  judgment,  the  court  may  nevertheless  render  judp^ment 
thereon.  Such  judp^ment  is  not  a  lien  on  the  real  property  of  the  deceased 
party,  but  is  payable  in  the  course  of  administration  on  his  estate. 

Post,  a  court  to  order  its  judfjment  to  be  eutered 
nunc  pro  tunc  is  inherent  in  the  court, 
and  is  to  be  exercised  for  the  purijose  of 
doing  justice  between  the  parties;  and  a 
court  will  always  exercise  this  authority 
when  it  is  apparent  that  the  delay  in  ren- 
dering the  judgment,  or  a  failure' to  enter 
it  after  its  rendition,  is  the  result  of  some 
act  or  delay  of  the  court,  and  is  not  owing 
to  any  fault  of  the  party  making  the  ap- 
plication. Fox  V.  Hale  etc.  Mining  Co.,  108 
Cal.  478;  41  Pac.  328.  Where  the  defend- 
ant dies  after  the  court  has  filed  a  written 
opinion  announcing  its  conclusions,  and 
directing  counsel  to  i)repare  the  findings 
and  decree  in  accordance  therewith,  the 
findings  may  be  filed  and  judgment  en- 
tered nunc  pro  tunc,  as  of  a  date  anterior 
to  the  death.  Fox  v.  Hale  etc.  Mining  Co., 
108  Cal.  478;  41  Pac.  328.  The  rights  of 
the  parties  are  to  be  determined  as  they 
existed  at  the  time  of  the  submission  of 
the  controversy;  hence,  after  such  submis- 
sion, although  at  the  time  the  defendant 
is  dead  or  insane,  findings  may  be  signed 
and  filed,  and  judgment  be  entered  against 
him.  San  Luis  Obispo  County  v.  Simas, 
1  Cal.  App.  175;  81  Pac.  972;  Fox  v.  Halo 
etc.  Mining  Co.,  108  Cal.  478;  41  Pac.  328. 

Defendant  not  served.  A  verdict  and 
judgment  against  two  defendants  cannot 
stand  as  against  a  co-defendant,  who  died 
a  few  days  after  the  commencement  of  the 
action,  and  who,  so  far  as  the  record  shows, 
was  not  served.  Alpers  v.  Schammel,  75 
Cal.  590;  17  Pac.  708. 

Suits  for  divorce.  Death  does  not  im- 
pair the  power  of  the  court  to  enter  final 
judgment  for  the  plaintiff  in  a  divorce  suit, 
pending  motions,  after  the  lapse  of  a  year 
without  appeal.  .John  v.  Superior  Court, 
5  Cal.  App.  262;  90  Pac.  53;  Cook's  Estate, 
77  Cal.  220;  11  Am.  St.  Rep.  267;  1  L.  R  A 
567;  17  Pac.  923. 


Payable    in    course    of    administration 
§  ir>OC,;    and   soc  S  ir>04. 

Death,  suggestion  of.     Ante,  §  385. 

Judgment  after  death,  not  a  lien.  See  post. 
§§  15(14,   1506. 

Executor,  etc.,  judgment  against,  form  of. 
Post,  §  1504. 

Legislation  8  669.  Enacted  Marrh  11,  1872; 
based  on  Practice  Act,  §  202,  which  had  (1)  the 
words  "shall  not  be"  instead  of  "is  not,"  and  (2) 
the  words  "shall  be"  instead  of  "is,"  before 
"payable." 

Judgment  entered  how.  If  the  code  were 
silent  regarding  the  procedure  in  case  of 
the  death  of  a  jjarty  pending  litigation, 
the  court  would  be  authorized  to  make  its 
decision  as  complete  as  if  it  had  become 
final  prior  to  his  death.  Fox  v.  Hale  etc. 
Mining  Co.,  108  Cal.  478;  41  Pac.  328. 
Under  this  section,  the  court  is  directed 
to  render  a  judgment  on  the  verdict,  and 
the  judgment  is  but  the  formal  entry  of 
the  result  of  the  litigation,  the  demand 
of  the  successful  party  having  been  liqui- 
dated and  established  by  the  verdict;  the 
statute  does  not  contemplate  any  substi- 
tution of  executor  or  administrator  prior 
to  the  entry  of  judgment;  the  judgment 
should  be  entered  against  the  decedent  by 
name,  and  its  effect  is  the  same  as  if  it 
had  been  ordered  as  of  a  date  anterior  to 
his  decease,  except  that  it  cannot  be  made 
to  charge  the  estate  with  a  lien  which 
should  have  priority,  and  is  payable  only 
in  due  course  of  administration.  Estate 
of  Page,  50  Cal.  40. 

Findings.  Findings  of  fact  and  conclu- 
sions of  law  stand  in  the  same  relation, 
with  regard  to  this  section,  as  a  judgment. 
Fox  V.  Hale  etc.  Mining  Co.,  108  Cal.  478; 
41  Pac.  328. 

Judgment  nunc  pro  tunc.  The  effect  of 
this  section,  in  providing  for  the  entry 
of  a  judgment  payable  out  of  the  estate  of 
the  decedent,  affords  a  statutory  proce- 
dure unknown  to  the  common  law,  and 
to  that  extent  removes  the  necessity  of 
directing  the  judgment  to  be  entered  upon 
the  decision  as  of  a  date  anterior  to  his 
death;  it  does  not,  however,  do  away  with 
the  rule  that  authorizes  the  court  to  direct 
that  its  decision,  so  far  as  the  same  shall 
be  necessary  to  protect  the  rights  of  the 
parties,  shall  be  entered  nunc  pro  tunc, 
as  of  a  day  anterior  to  the  death  of  the 
party.  Fox  v.  Hale  etc.  Mining  Co.,  108 
Cal.   478;   41   Pac.   328.     The   authority   of 


Validity  of  judgment  against  deceased  person. 
See  note  52  Am.  Dec.  107. 

Effect  of  death  of  judgment  debtor  upon  sub- 
sequent enforcement  of  Judgment.  See  note  65 
Am.  Dec.  123. 

Lien  of  judgment  after  death  of  defendant. 
See  note  89  Am.  Dec.  242. 

Judgment  where  death  occurs  at  certain  stages 
of  the  action.    See  note  49  h.  11.  A.   161. 

CODE  COMMISSIONERS'  NOTE.  Gregory  t. 
Haynes,  21  Cal.  443;  Black  v.  Shaw,  20  Cal.  68; 
Judson  V.  Love.  35  Cal.  466. 


§  670.  Judgment  roll,  what  constitutes.  Immediately  after  entering  the 
judgment,  the  clerk  must  attach  together  and  file  the  following  papers, 
w^hich  constitute  the  judgment  roll: 


§670 


MANNER  OF  GIVING   AND   ENTERING   JUDGMENT. 


776 


1.  In  case  the  complaint  is  not  answered  by  any  defendant,  the  sum- 
mons, with  the  affidavit  or  proof  of  service;  the  complaint  with  a  memo- 
randum indorsed  thereon  that  the  default  of  the  defendant  in  not  answer- 
ing Avas  entered,  and  a  copy  of  the  judgment;  and  in  case  the  service  so 
made  is  by  publication,  the  affidavit  for  publication  of  summons,  and  the 
order   directing   the   publication    of   summons; 

2.  In  all  other  cases,  the  pleadings,  all  orders  striking  out  any  pleading 
in  whole,  or  in  part,  a  copy  of  the  verdict  of  the  jury,  or  finding  of  the 
court  or  referee,  and  a  copy  of  any  order  made  on  demurrer,  or  relating 
to  a  change  of  parties,  and  a  copy  of  the  judgment;  if  there  are  two  or 
more  defendants  in  the  action,  and  any  one  of  them  has  allowed  judgment 
to  pass  against  him  by  default,  the  summons,  with  proof  of  its  service, 
on  such  defendant;  and  if  the  service  on, such  defaulting  defendant  be  by 
publication,  then  the  affidavit  for  publication,  and  the  order  directing  the 
publication  of  the  summons. 


Judgment  roll  in  criminal  cases.  See  Pen. 
Code,  §  1207. 

Clerk's  powers  and  duties.  County  clerk.  See 
Pol.  Code,  §§  4178,  4179. 

Legislation  §  670.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  203  (New  York  Code, 
§  281),  as  amended  by  Stats.  1865-66,  p.  846, 
■which  (1)  in  the  introductory  paragraph,  (a) 
had  the  word  "shall"  instead  of  "must,"  and  (b) 
the  word  "shall"  before  "constitute";  (2)  subd.  1 
then  ending  with  "copy  of  the  judgment,"  and 
(3)  subd.  2  reading,  "Second.  In  all  other  cases, 
the  summons,  pleadings,  verdict  of  the  jury,  or 
finding  of  the  court,  commissioner,  or  referee, _  all 
bills  of  exceptions  taken  and  filed  in  said  action, 
copies  of  orders  sustaining  or  overruling  demur- 
rers, a  copy  of  the  judgment,  and  copies  of  any 
orders  relating  to  a  change  of  parties."  When 
§  670  was  enacted  in  1872.  (1)  in  the  introduc- 
tory paragraph,  (a)  the  word  "must"  was  changed 
from  "shall,"  and  (b)  the  word  "shall"  was 
omitted  before  "constitute";  (2)  in  subd.  2,  (a) 
the  word  "summons"  was  omitted  before  "plead- 
ings." and  (b)  the  words  "in  said  action"  were 
omitted  after  "filed  " 

3,  Amended  by  Code  Amdts.  1873-74,  p.  319, 
(1)  in  subd.  1,  substituting  "thereon"  for  "upon 
the  complaint,"  and  (2)  changing  subd.  2  to 
read:  "2.  In  all  other  cases,  the  pleadings,  a  copy 
of  the  verdict  of  the  jury,  or  finding  of  the  court, 
or  referee,  and  a  copy  of  any  order  m.ide  on  de- 
murrer, or  relating  to  a  change  of  parties,  and  a 
copy  of  the  judgment.  If  there  are  two  or  more 
defendants  in  the  action,  and  any  one  of  them 
has  allowed  judgment  to  pass  against  him  by  de- 
fault, the  summons,  with  proof  of  its  service  upon 
such  defendant,  must  also  be  added  to  the  other 
papers  mentioned  in  this  subdivision." 

3.  Amended  by  Code  Amdts.  1875-76.  p.  93, 
adding,  in  subd.  2,  after  "court  or  referee,"  the 
words   "all  bills  of   exception   taken   and   filed." 

4.  Amended  by  Stats.  1895,  p.  45,  (1)  in 
subd.  1,  (a)  omitting  the  word  "and"  before  "the 
complaint,"  and  (b)  adding,  after  "copy  of  the 
judgment,"  the  clause,  "and  in  case  where  the 
fervice  so  made  be  by  publication,  the  affidavit 
for  publication  of  summons,  and  the  order  direct- 
ing the  publication  of  summons,  must  also  be 
included":  (2)  in  subd.  2.  (a)  changing  the  word 
"a"  to  "the,"  before  "change  of  parties,"  (b) 
changing  the  word  "upon"  to  "on."  and  (c)  add- 
ing, at  end  of  section,  after  "this  subdivision," 
the  clause,  "and  if  the  service  on  such  defaulting 
defendant  be  by  nuMicatinn.  then  the  affidavit 
for  publication,  and  the  order  directing  the  pub- 
lication of  the  summons  in  such  cases  must  also 
be  included." 

5.  Amendment  by  Stats.  1901,  p.  151;  un- 
constitutional.    See  note  ante,  §  5. 

6.  Amended  by  Stats.  1907,  p.  720. 

Scope  of  section.  The  iudgment  roll, 
TPhich  is  provided  for  by  this  section,  con- 


tains all  the  essentials  of  the  common-law 
record,  but  omits  the  formal  parts,  such 
as  the  placita,  memorandum,  continuances, 
and  connecting  links,  some  of  which  have 
been  rendered  unnecessary  by  changes  in 
our  procedure.  Hahn  v.  Kelly,  34  Cal.  391; 
94  Am.  Dec.  742  (Sawyer,  J.).  Prior  to 
the  amendment  of  this  section  in  189.3,  the 
affidavits  of  service  and  the  recitals  in  the 
judgment  were  conclusive:  the  affidavit  on 
application  for  an  order  of  publication, 
and  the  order  of  publication,  were  not  then 
part  of  the  judgment  roll.  Estate  of  New- 
man, 75  Cal.  2i3;  7  Am.  St.  Rep.  146;  16 
Pac.  8S7.  While  this  section  prescribes 
what  constitutes  the  judgment  roll,  yet  it 
does  not  prescribe  what  shall  constitute 
the  record  on  appeal.  Foley  v.  Foley,  120 
Cal.  33;  65  Am.  St.  Eep.  147;  52  Pac.  122. 
In  the  United  States,  paper  has  universally 
supplied  the  place  of  parchment  as  the 
material  of  the  record,  and  the  roll  form 
has,  on  that  account,  fallen  into  disuse; 
but  in  other  respects  the  forms  of  the  Eng- 
lish records  have,  with  some  modifications, 
been  generally  adopted;  but,  whether  in 
parchment  or  in  paper,  in  the  roll  form 
or  otherwise,  this  judgment  roll  is  what  is 
known  in  law  as  the  record, — the  technical 
record, — and  is  what  is  meant  by  courts 
and  law-writers  when  they  speak  of  rec- 
ords of  superior  courts,  or  courts  of  record. 
Hahn  v.  Kellv,  34  Cal.  391;  94  Am.  Dec. 
742  (Sawyer,.).). 

Judgment  roll  should  be  made  up  when. 
The  judgment  roll  cannot  be  made  up  and 
filed  until  after  the  entry  of  the  judgment 
in  the  judarment-book.  Meiizies  v.  Watson, 
105  Cai.  109;  38  Pac.  641;  Estate  of  Pichoir, 
139  Cal.  694;  70  Pac.  214;  Baker  v.  Brickell, 
102  Cal.  620;  36  Pac.  950;  Sharp  v.  Lumley, 
34  Cal.  611;  Emeric  v.  Alvarado,  64  Cal. 
529;  2  Pac.  418.  A  judgment  by  default 
need  not  be  filed:  it  is  only  the  judgment 
roll,  in  cases  when  there  is  an  answer, 
these  must  be  filed.  Shirran  v.  Dallas,  21 
Cal.  App.  405;  132  Pac.  454. 


777 


DUTIES    OF    CLERK — JUDGMENT    ROLL,    WHAT    IS,    ETC. 


§670 


Duties  of  clerk.  This  section  provides 
for  an  authoiitie  record  of  the  date  of  the 
entry  of  the  judgment;  that  the  clerk  shall 
innnediately  after  entering  the  Judsment, 
make  up  and  file  the  judgment  roll;  that 
he  shall  indorse  the  roll  as  filed  on  a  jiar- 
ticular  date,  and  authenticate  the  indorse- 
ment by  his  official  sij^nature:  this,  in 
the  absence  of  other  evidence,  raises  the 
presumption  that  oflficial  duty  has  been 
duly  performed,  and  is  authentic  evidence 
that  the  judgment  has  been  entered  imme- 
diatelv  before,  on  the  same  da  v.  Estate  of 
Pichoir,  139  Cal.  694;  70  Pac.'214;  Baker 
V.  Briekell,  102  Cal.  620;  36  Pac.  950.  But 
the  existence  of  the  judgment  roll  does  not 
dei>end  upon  the  fact  that  the  clerk  has 
fastened  the  papers  constituting  the  roll 
together;  nor  do  any  other  pai)ers  which 
the  clerk  may  have  ,  joined  with  those 
which  the  statute  declares  shall  constitute 
the  judgment  roll,  become  part  thereof 
bv  reason  of  having  been  so  joined.  Colton 
Land  etc.  Co.  v.  Swartz,  99  Cal.  278;  33 
Pac.  878.  The  judgment  roll  is  not  to  be 
made  up  until  after  the  entry  of  judg- 
ment; and  the  neglect  of  the  clerk  to  make 
up  the  roll  does  not  vitiate  the  judgment, 
nor  the  proceedings  under  it.  Sharp  v. 
Lundey,  34  Cal.  611.  The  only  authenti- 
cation of  the  judgment  roll  and  notice  of 
appeal  required  is  the  certificate  of  the 
clerk  or  the  stipulation  of  the  attorneys: 
the  only  effect  of  the  new  method  of  ap- 
peal is  to  allow  the  use  of  typewritten 
instead  of  printed  copies.  Totten  v.  Barlow, 
165  Cal.  378;  132  Pac.  749;  Knoch  v.  Haiz- 
lip,  163  Cal.  20;  124  Pae.  997. 

Proof  of  service  of  papers  as  part  of 
judgment  roll.  By  proof  of  service  is 
meant  the  affidavit  of  the  party  making 
service;  or  the  certificate  of  the  officer, 
if  service  was  made  by  an  officer,  showing 
his  competency  to  make  service,  and  that 
he  in  fact  made  it;  or  if  service  was  made 
by  publication,  the  affidavit  of  the  printer, 
or  his  foreman  or  principal  clerk,  showing 
that  publication  was  made;  or  if  by  mail- 
ing, an  affidavit  showing  a  deposit  in  the 
post-office.  Hahn  v.  Kelly,  34  Cal.  391;  94 
Am.  Dec.  742.  The  affidavit  or  proof  of 
service  of  summons  is  a  necessary  part 
of  the  judgment  roll,  where  the  defendant 
has  not  a]i]ieared  in  the  action,  and  a  per- 
sonal judgment  by  default  is  rendered 
against  him.  Barney  v.  Vigoureaux,  75 
Cal.  376;  17  Pac.  433.  The  proof  of  service 
of  summons  issued  upon  a  cross-complaint 
should  be  contained  in  the  judgment  roll, 
with  a  memorandum  indorsed  thereon  of 
the  default  of  the  defendants  failing  to 
answer  the  cross-complaint.  Winter  v.  Mc- 
Millan, 87  Cal.  256;  22  Am.  St.  Rep.  243; 
25  Pae.  407.  The  jiroof  of  service  of 
amended  pleadings  is  not  a  jtart  of  the 
judgment  roll  (Riverside  Countv  v.  Stock- 
man, 124  Cal.  222;  56  Pac.  1027);  nor  is 
the  proof  of  service  of  notice  of  appeal. 
Peck  V.  Agnew,  126  Cal.  607;  59  Pac.  125. 


Affidavit  and  order  for  publication  of 
summons  as  part  of  judgment  roll.  Prior 
to  the  amendment  of  this  section  in  1895, 
the  affidavit  and  order  for  publication  of 
the  summons  formed  no  part  of  the  judg- 
ment roll;  but  since  that  amendment  they 
must  be  inrluded,  and  the  facts  necessary 
to  be  stated  therein  are,  equally  with  the 
original  summons  itftelf,  evidence  of  the 
stejis  by  which  jurisdiction  of  the  person 
of  the  defendant  is  obtained.  Kahn  v. 
Matthai,  115  Cal.  689;  47  Pac.  69S;  Lake 
V.  Bonynge,  161  Cal.  120;  118  Pac.  535. 
If  the  affiilavit  and  order  for  the  publica- 
tion of  summons  are  not  a  part  of  the 
judgment  roll,  they  cannot,  in  a  collateral 
attack  upon  the  judgment,  be  examined; 
but,  by  the  amendment  of  1895,  such  affi- 
davit ami  order  were  made  a  part  of  the 
judgment  roll.  Estate  of  McNeil,  155  Cal. 
333;  100  Pac.  1086.  This  section  provides 
that  the  affidavit  for  publication  of  sum- 
mons, and  the  order  directing  its  publi- 
cation, shall  form  part  of  the  judgment 
roll:  these  documents  are  therefore  to  be 
considered  in  determining  whether  the 
court  obtained  jurisdiction  of  the  defend- 
ant in  the  action.  Parsons  v.  Weis,  144 
Cal.  410;  77  Pac.  1007.  The  affidavit  to 
procure  publication  of  summons  and  the 
aflSdavit  showing  service  must  now  be 
made  part  of  the  judgment  roll.  San  Diego 
Sav.  Bank  v.  Goodsell,  137  Cal.  420;  70 
Pac.  299;  Kahn  v.  Matthai,  115  Cal.  689; 
47  Pac.  698.  The  affidavit  for  publication 
of  summons  must  be  on  file  before  trial 
commences  to  give  the  court  jurisdiction. 
Zumbusch  v.  Sujierior  Court,  21  Cal.  App. 
76;  130  Pac.  1070. 

Pleadings  part  of  judgment  roll.  An 
original  complaint  is  a  document  on  file 
in  the  action,  and  is  therefore  properly  in- 
corporated in  the  bill  of  exceptions:  it 
can  by  no  possibility  be  superseded  by  the 
amended  conijdaint  for  all  purposes.  Eed- 
ington  V.  Cornwell,  90  Cal.  49;  27  Pac.  40. 
A  cross-complaint  is  part  of  the  juilgment 
roll,  which  must  show  proof  of  the  service 
thereof,  or  judgment  by  default  cannot  be 
rendered  against  the  cross-defendants. 
"White  V.  Patton,  87  Cal.  151 ;  25  Pac.  270. 

Appearance  not  part  of  judgment  roll. 
An  appearance  is  not  required  to  be  made 
a  part  of  the  judgment  roll.  Lvons  v. 
Roach,  84  Cal.  27;  23  Pac.  1026;  Western 
Lumber  etc.  Co.  v.  Merchants'  Amusement 
Co.,  13  Cal.  App.  4;  lOS  Pac.  891. 

Stipulations  as  part  of  judgment  roll. 
A  stipulation,  entered  in  the  minutes  of 
the  court,  between  the  attorneys  for  the 
plaintiff  and  the  attorneys  for  the  defend- 
ant, that  the  answer  of  the  latter,  '"now 
on  file  to  plaintiff's  amended  complaint,  be 
his  answer  to  said  amended  complaint, 
when  amended  as  hereinbefore  specified," 
is  a  part  of  the  judgment  roll  (Kent  v. 
San  Francisco  Sav.  Union,  130  Cal.  401; 
62  Pac.  620);  but  a  stipulation  of  the  par- 
ties, that  the  cause  be  continued,  that  a 


670 


MANNER  OF  GIVING   AND   ENTERING   JUDGMENT. 


778 


certain  amount  is  due,  that  such  amount 
shall  be  paid  in  installments,  and  that 
judgment  may  be  entered  in  ease  of  de- 
fault, is  not  a  part  of  the  judgment  roll 
(Spinetti  v.  Brignardello,  53  Cal.  281); 
neither  is  a  stipulation,  entered  in  the 
minutes  of  the  court.  Spreckels  v.  Ord, 
72  Cal.  86;  13  Pac.  158. 

Orders  changing  parties  are  part  of 
judgment  roll.  Au  order  striking  names 
from  the  complaint  becomes  a  part  of  the 
judgment  roll,  rendering  it  unnecessary  to 
amend  the  complaint  (Tormey  v.  Pierce, 
49  Cal.  306);  and  an  intermediate  order 
relating  to  a  change  of  parties  is  a  part 
of  the  judgment  roll.  Harper  v.  Minor, 
27  Cal.  107.  An  order  substituting  plain- 
tiffs is  an  order  relating  to  a  change  of 
parties,  and  becomes  a  part  of  the  judg- 
ment roll,  and  imports  the  same  verity  as 
the  other  parts  of  the  record.  Crim  v. 
Kessing,  89  Cal.  478;  23  Am.  St.  Rep.  491; 
26  Pac.  1074. 

Notices,  motions,  and  orders  forming  no 
part  of  judgment  roll.  The  notice,  af3Ei- 
davit,  and  motion  upon  which  an  order 
striking  out  a  pleading  is  made,  form  no 
part  of  the  judgment  roll.  Orange  Grow- 
ers' Bank  v.  Duncan,  133  Cal.  254;  65 
Pac.  469;  Ganceart  v.  Henry,  98  Cal.  281; 
33  Pac.  92.  Neither  a  motion  to  strike 
out  parts  of  a  complaint  and  to  make  the 
complaint  more  definite  and  certain,  nor 
an  order  denying  such  motions,  is  a  part 
of  the  judgment  roll  (Mock  v.  Santa  Rosa, 
126  Cal.  330;  58  Pac.  826;  Spinetti  v. 
Brignardello,  53  Cal.  283;  Sichler  v.  Look, 
93  Cal.  600;  29  Pac.  220);  nor  are  the 
motion  and  the  order  to  strike  out  portions 
of  a  complaint  (Harper  v.  Minor,  27  Cal. 
107;  Dimick  v.  Campbell,  31  Cal.  238; 
Sharp  V.  Daugney,  33  Cal.  505;  Sutter  v. 
San  Francisco,  36  Cal.  112);  nor  are  inter- 
mediate orders,  except  orders  relating  to 
a  change  of  parties  (Harper  v.  Minor,  27 
Cal.  107);  nor  is  an  order  allowing  an 
amended  complaint  (Carter  v.  Paige,  3  Cal. 
Unrep.  64;  20  Pac.  729);  nor  an  order 
granting  leave  to  file  an  amended  plead- 
ing, or  the  proof  of  service  of  an  amended 
pleading  (Livermore  v.  Webb,  56  Cal.  489); 
nor  an  order  granting  leave  to  amend  the 
answer  (Segerstrom  v.  Scott,  16  Cal.  App. 
256;  116  Pac.  690);  nor  an  order  setting 
aside  a  default  upon  conditions,  nor  an 
order  striking  out  an  answer  for  failure 
to  comply  with  the  conditions  (De  Pedro- 
reiia  v.  Hotchkiss,  95  Cal.  636;  30  Pac.  787; 
Spence  v.  Scott,  97  Cal.  181;  31  Pac.  52, 
939) ;  nor  an  order  refusing  to  strike  out 
pleadings  (South  Yuba  Water  Co.  v.  Au- 
burn, 16  Cal.  App.  790;  118  Pac.  101); 
nor  an  order  setting  aside  a  default  and 
judgment,  and  restoring  an  answer  to  the 
files  (Von  Schmidt  v.  Von  Schmidt,  104 
Cal.  547;  38  Pac.  361);  nor  are  the  peti- 
tion, bond,  and  order  for  change  of  venue 
(Rough  V.  Booth,  2  Cal.  Unrep.  270;  3  Pac. 


91);  nor  is  the  notice  of  the  overruling 
of  a  demurrer,  and  proof  of  service  thereof 
(Jacks  V.  Baldez,  97  Cal.  91;  31  Pac.  899); 
nor  the  notice  of  intention  to  move  for  a 
new  trial  (Pico  v.  Cohn,  78  Cal.  384;  20 
Pac.  706);  nor  the  petition  for  the  ap- 
pointment of  a  guardian  ad  litem,  nor 
the  order  of  appointment  (Emeric  v.  Al- 
varado,  64  Cal.  529;  2  Pac.  418;  Batchelder 
V.  Baker,  79  Cal.  266;  21  Pac.  754);  nor 
a  minute-order,  the  basis  for  entering  a 
second  judgment.  Galvin  v.  Palmer,  134 
Cal.  426;  66  Pac.  572.  Until  the  amend- 
ment, in  1865,  of  the  section  of  the  Prac- 
tice Act  on  which  this  section  is  based,  an 
order  sustaining  or  overruling  a  demurrer 
was  not  a  part  of  the  judgment  roll. 
Abadie  v.  Carrillo,  32  Cal.  172. 

Minutes  are  not  part  of  judgment  roll. 
The  minutes  of  the  clerk  are  not  a  part 
of  the  judgment  roll.  Harper  v.  Minor,  27 
Cal.  107;  Von  Schmidt  v.  Widber,  99  Cal. 
511;  34  Pac.  109;  Knowles  v.  Baldwin,  125 
Cal.  224;  57  Pac.  988.  The  entries  in  the 
minutes  are  evidently  intended  for  the 
guidance  of  the  court  in  its  further  action 
in  the  cause,  and  cease  to  be  of  value  upon 
the  entry  of  the  judgment:  they  form  no 
part  of  the  judgment  roll,  or  "record"  of 
the  judicial  action  of  the  court,  and  they 
cannot  be  used  to  imiieach  that  record. 
Von  Schmidt  v.  Widber,  99  Cal.  511;  34 
Pac.  109. 

Verdict  is  part  of  judgment  roll.  The 
verdict  is  a  part  of  the  judgment  roll,  and 
when  it  appears  therein,  and  is  sufficiently 
identified,  it  will  be  presumed  to  have  been 
properly  recorded  and  entered  by  the  clerk 
in  the  minutes  of  the  court,  as  required  by 
§  628,  ante.  Goldman  v.  Rogers,  85  Cal. 
574;  24  Pac.  782.  A  special  verdict  is  also 
a  part  of  the  judgment  roll.  California 
Wine  Ass'n  v.  Commercial  Union  Fire  Ins. 
Co.,  159  Cal.  49;  112  Pac.  858. 

Findings  as  part  of  judgment  roll.  The 
finding  of  facts  and  conclusions  of  law, 
as  contemplated  by  this  section,  is  different 
from  the  opinion;  the  finding  should  con- 
sist of  a  concise,  distinct,  pointed,  and 
separate  statement  of  each  specific,  essen- 
tial fact  established  by  the  evidence,  in  its 
proper  order,  without  any  of  the  testimony 
by  which  the  facts  are  proved,  followed 
by  a  similar  statement  of  the  conclusions 
of  law  drawn  from  the  facts  thus  found: 
the  finding  forms  a  part  of  the  judgment 
roll;  the  opinion  does  not,  not  being  a 
finding.  Hidden  v.  Jordan,  28  Cal.  301. 
A  writing  filed  by  the  court  as  its  "decis- 
ion," or  findings  (a  very  different  thing 
from  the  opinion),  is  a  part  of  the  judg- 
ment roll  (Kimball  v.  Stormer,  65  Cal.  116; 
3  Pac.  408);  but  a  minute-entry,  made  by 
the  clerk,  as  to  findings,  is  not  (Kritzer 
V.  Tracy  Engineering  Co.,  16  Cal.  App. 
287;  116  Pac.  700);  nor  are  the  findings 
of  fact  and  conclusions  of  law,  where 
there  is  no  answer:  they  are  not  necessary. 


779 


JUDGMENT    ROLL,    WHAT    CONSTITUTES — PRESUMPTIONS, 


§(J70 


Thomson  v.  Thomson,  121  Cal.  11;  53  Pac. 
40o;  Mulcahy  v.  (ilazier,  51  Cal.  626;  Mur- 
ray V.  Murray,  115  Cal.  266;  56  Am.  St. 
Rep.  97;  37  L.  R.  A.  626;  47  Pac.  37.  The 
findings  and  rejiort  of  a  referee  are  part 
of  the  judgment  roll,  where  he  reports 
upon  the  whole  case  (Thompson  v.  Patter- 
son, 54  Cal.  542;  and  see  Faulkner  v. 
Hendy,  103  Cal.  15;  36  Pac.  1021);  but 
the  report  of  a  referee,  simply  the  report 
of  testimony  upon  which  the  judfje  based 
his  findintrs,  is  not  a  part  of  tlie  judgment 
roll  (IIari>er  v.  Minor,  27  Cal.  107);  so 
the  finding  of  a  referee  appointed  to  deter- 
mine a  particular  fact  is  not  a  part  of  the 
judgment  roll.  Faulkner  v.  Plendv,  103  Cal. 
15;  36  Pac.  1021. 

Bill  of  particulars  no  part  of  the  judg- 
ment roll.  A  bill  of  particulars  is  no  part 
of  the  judgment  roll.  Edelman  v.  Mc- 
Donell,  126  Cal.  210;  58  Pac.  528. 

Judgment  as  part  of  judgment  roll.  The 
papers  designated  in  this  section  as  form- 
ing the  judgment  roll  are  those  elsewhere 
mentioned  in  this  code  as  a  part  of  the 
proceedings  culminating  in  the  judgment; 
and  the  judgment,  a  copy  of  which  is  to  be 
included  in  the  roll,  is  the  judgment  de- 
fined in  §  577,  ante,  as  the  final  determina- 
tion of  the  rights  of  the  parties  in  an 
action  or  proceeding;  hence,  if,  during  the 
proceedings  in  an  action,  a  judgment  is 
set  aside,  and  another  entered  in  its  stead, 
only  the  latter  judgment  can  form  a  part 
of  the  judgment  roll.  Colton  Land  etc. 
Co.  V.  Swartz,  99  Cal.  278;  33  Pac.  378. 
Whether  a  judgment  is  entered  by  default 
or  after  trial,  a  copy  of  the  judgment  is 
a  part  of  the  judgment  roll.  Thomas  v. 
Anderson,  55  Cal.  43. 

Exceptions  are  part  of  judgment  roll. 
Exceptions  taken  during  the  trial  should 
be  written  down,  settled  and  signed  by 
the  judge,  filed  in  the  case,  and  afterward 
annexed  to  the  judgment  roll.  More  v. 
Del  Valle,  28  Cal.  170.  Exceptions  taken 
and  settled  at  the  trial  are  annexed  to 
and  form  part  of  the  judgment  roll,  and 
therefore  constitute  a  part  of  the  record 
on  appeal  from  the  judgment  on  the  judg- 
ment roll  alone.  Wetherbee  v.  Carroll,  33 
Cal.  549.  All  bills  of  exceptions  taken  and 
filed  are  a  part  o'f  the  judgment  roll,  which 
the  appellant  is  required  to  bring  to  the 
appellate  court  upon  an  appeal  from  the 
judgment;  and  if,  upon  a  second  appeal, 
there  are  found  in  the  record  matters 
which  were  not  determined  upon  the  first 
appeal,  the  appellant  has  the  right  to  be 
heard  thereon  (Klauber  v.  San  Diego  Street 
Car  Co.,  98  Cal.  105;  32  Pac.  876);  but 
the  testimony,  unless  embodied  in  the  bill 
of  exceptions  and  filed,  is  not  a  part  of 
the  judgment  roll.  Lee  Sack  Sam  v.  Grav, 
104  Cal."  243;  38  Pac.  85. 

Judgment  roU  in  probate  proceedings 
and  will  contests.  In  probnte  proceedings 
there   is   no   judgment  roll,  strictly   speak- 


ing; but  whenever  such  proceedings  are 
60  akin  to  a  civil  action  as  to  necessitate 
the  "papers"  which  are  declared  by  this 
section  to  constitute  the  judgment  roll  in 
a  civil  action,  the}'  may  be  held  to  con- 
stitute the  judgment  roll  referred  to  in 
§661,  ante.  Estate  of  Rver,  110  Cal.  556; 
42  Pac.  1082.  The  settlement  of  the  ac- 
counts of  an  executor,  although  sometimes 
called  an  order,  is,  in  effect,  a  judgment, 
and,  in  a  proceeding  for  the  settlement  of 
such  an  account,  the  petition  and  account, 
and  the  written  objections  filed  to  it,  are 
the  pleadings,  which  the  clerk  of  the  court 
is  re()uired  to  attach  to  a  copy  of  the 
judgment,  and  these  constitute  the  judg- 
ment roll.  Miller  v.  Lux,  100  Cal.  609;  35 
Pac.  345;  Estate  of  Page,  57  Cal.  238; 
Estate  of  Isaacs,  30  Cal.  106.  In  a  will 
contest,  the  judgment  roll  must  include  at 
least  the  petition  for  the  revocation  of  the 
probate,  the  answer  thereto,  the  verdict 
of  the  jurv,  and  the  judgment.  Estate  of 
Kilborn,  1(;2  Cal.  5;  12('l  Pac.  762. 

Admissibility  of  judgment  roll  in  evi- 
dence. The  admissibility  of  the  judgment 
roll  in  evidence  is  to  be  determined  by  the 
court  upon  an  inspection  thereof.  Crim  v. 
Kessing,  89  Cal.  478;  23  Am.  St.  Rep.  491; 
26  Pac.  1074.  Upon  an  application  for  a 
writ  of  assistance,  the  judgment  roll  is 
admissible  in  evidence,  although  an  appeal 
is  pending,  where  execution  has  not  been 
staved.  California  etc.  Sav.  Bank  v.  Graves, 
129  Cal.  649;  62  Pac.  259.  In  actions  in- 
volving adverse  possession,  judgment  rolls 
in  other  actions  are  admissible  to  show 
that  defendant,  at  various  times,  claimed 
title  to  the  land,  and  as  thus  tending  to 
prove  adverse  possession.  Hines  v.  Good, 
128  Cal.  38;  79  Am.  St.  Rep.  22;  60  Pac. 
527.  The  judgment  roll  in  another  suit, 
brought  by  the  same  plaintiff,  is  not  ad- 
missible in  evidence  against  the  defenciant, 
to  which  suit  he  was  not  a  party,  and  he 
is  in  no  way  bound  or  estopped  by  the 
judgment  therein.  Cloverdale  v.  Smith, 
128  Cal.  230;  60  Pac.  851.  The  admissi- 
bility of  the  judgment  roll  of  another 
county  does  not  in  any  way  depend  upon 
the  means  by  which  it  was  brought  to  the 
court  where  it  is  sought  to  be  used.  People 
V.  Alden,  1 1;'.  Cal.  264;  45  Pac.  327. 

Presumption  as  to  what  constitutes  judg- 
ment roll.  In  the  absence  of  a  showing 
to  the  contrary,  it  will  be  presumed  that 
the  pleadings,  order  overruling  the  de- 
murrer, minutes  of  the  court,  findings,  and 
judgment,  contained  in  the  transcript,  and 
mentioned  in  the  certificate  of  the  clerk 
attached  thereto  as  being  correct,  consti- 
tute the  judgment  roll:  it  is  not  necessary 
that  the  certificate  shall  also  state  that 
thev  constitute  the  judgment  roll.  O'Shea 
v.  Wilkinson,  95  Cal.  454;  30  Pac.  588. 
The  statute  provides  that  the  judgment 
roll  shall  be  filed  in  the  county  where  the 
judgment   is   recovered;    hence,   it   will    be 


670 


MANNER  OP  GIVING   AND   ENTERING   JUDGMENT. 


780 


presumed  that  the  clerk,  whose  duty  it 
was  to  make  up  and  file  the  judgment  roll, 
did  so,  where  a  writ  of  execution  states 
the  county  in  which  the  judgment  was  re- 
covered. Van  Cleave  v.  Bucher,  79  Cal. 
600;  21  Pac.  954.  A  judgment  of  a  foreign 
court  of  general  jurisdiction  is  admissible 
in  evidence,  when  dul}'  authenticated,  and 
is  presumed  to  be  correct;  and  where  it 
contains  a  finding  or  recital  of  service  by 
publication,  it  will  be  presumed  that  such 
service  was  made  upon  sufficient  affidavit 
and  order.  McHatton  v.  Khodes,  143  Cal. 
27.5;  101  Am.  St.  Eep.  125;  76  Pac.  1036. 

Presumptions.  Upon  an  appeal  from  a 
judgment,  upon  the  judgment  roll  alone, 
all  intendments  will  be  made  in  support 
of  the  judgment,  and  all  proceedings  neces- 
sary to  its  validity  will  be  presumed  to 
have  been  regularly  taken,  and  any  mat- 
ters which  might  have  been  presented  to 
the  court  below,  which  would  have  au- 
thorized the  judgment,  will  be  presumed 
to  have  been  thus  presented,  if  the  record 
shows  nothing  to  the  contrary.  Von 
Schmidt  v.  Von  Schmidt,  104  Cal.  .547;  38 
Pac.  361.  The  presum])tiou  which  the  law 
implies  in  support  of  judgments  of  courts 
of  general  jurisdiction  arises  only  with 
respect  to  jurisdictional  facts  concerning 
which  the  record  is  silent;  and  where  the 
judgment  recites  service  of  process  on  the 
defendant,  but  the  judgment  roll  shows 
insufficient  and  void  service  by  publication, 
the  recitals  of  the  judgment  do  not  control, 
and  cannot  be  held  to  show  jurisdiction. 
Latta  V.  Tutton,  122  Cal.  279;' 68  Am.  St. 
Eep.  30;  54  Pac.  844.  Where  nothing  ap- 
pears in  the  judgment  roll  to  contradict 
recitals  of  due  service  of  process  found  in 
the  decree,  they  are  deemed  to  be  true, 
and  to  show  that  the  court  has  jurisdiction 
of  the  subject-matter  and  of  the  parties; 
and  the  judgment  of  a  court  of  general 
jurisdiction  is  conclusively  presumed  to  be 
correct,  unless  the  record  itself  shows  that 
the  court  did  not  have  jurisdiction;  and 
when  it  has  such  jurisdiction,  its  record 
speaks  absolute  verity,  because  it  is  the 
court's  record  of  its  own  acts,  and  such 
jurisdiction  will  be  conclusively  presumed, 
unless  the  contrary  appears  upon  the  face 
of  the  record.  Butler  v.  Soule,  124  Cal. 
69;  56  Pac.  601;  Crim  v.  Kessing,  89  Cal. 
478;  23  Am.  St.  Eep.  491;  26  Pac.  1074. 
Where,  on  appeal,  a  copy  of  a  paper,  in- 
stead of  the  original,  appears  in  the  judg- 
ment roll,  it  will  be  presumed  that  the 
original  was  lost  and  that  the  copy  was 
properly  substituted.  Sichler  v.  Look,  93 
Cal.  600;  29  Pac.  220.  Findings  bearing 
a  date  subsequent  to  the  time  the  judg- 
ment roll  is  j)resumefl  to  have  been  com- 
pleted, and  inserted  in  the  judgment  roll 
after  the  judgment,  cannot  be  considered 
a  part  thereof:  on  appeal,  all  intendments 
are  in  favor  of  the  regularity  of  the  pro- 
ceedings,  and,  in   the  absence  of  a  state- 


ment or  bill  of  exceptions,  it  will  be 
presumed  the  findings  were  waived.  Gor- 
dan  V.  Donahue,  79  Cal.  501;  21  Pac.  970. 

Conclusiveness  of  finding  or  recital  of 
service  of  process.  The  finding  of  the 
court,  that  the  defendant  was  duly  served 
with  process,  is  sufficient  to  show  jurisdic- 
tion; the  judgment  does  not  depend  upon 
the  performance  of  the  clerical  duty  of 
making  up  the  judgment  roll  or  the  preser- 
vation of  the  papers;  it  is  enough  if  the 
facts  exist  which  give  the  court  juris- 
diction, and  the  finding  that  they  do  exist, 
though  the  summons  ami  return  are  lost 
or  mislaid,  is  sufficient.  Lick  v.  Stockdale, 
IS  Cal.  219.  Eecital  of  service  in  the 
judgment  itself,  where  the  judgment  roll 
was  lost,  is  conclusive  on  collateral  attack, 
and  parol  testimony  is  not  admissible  to. 
contradict  the  same  after  the  lapse  of 
many  years.  People  v.  Harrison,  84  Cal. 
607;  24  Pac.  311.  The  finding  or  recital 
of  due  service  of  process  is  not  conclusive, 
where  the  proof  of  service  is  a  part  of  the 
judgment  roll,  and,  as  it  appears  in  such 
roll,  is  not  sufficient  evidence  of  such  ser- 
vice, as  where  it  is  not  sworn  to  nor  does 
it  appear  to  be  certified  by  any  officer  as 
his  act.  Eeinhart  v.  Lugo,  86  Cal.  395;  21 
Am.  St.  Eep.  52;  24  Pac.  1089.  Where 
the  summons  is  not  included  in  the  judg- 
ment roll,  but  it  appears  that  it  was  issued, 
with  evidence  of  its  contents,  showing  that 
it  was  regular  and  sufficient  in  form,  and 
that  it  was  duly  served,  such  a  prima  facie 
showing  is  made  as  to  the  jurisdiction  of 
the  person  of  the  defendant,  even  in  the 
absence  of  the  original  summons,  as  will 
support  the  judgment  upon  a  direct  attack ; 
and  such  a  showing  is  made  by  a  judg- 
ment roll  containing  the  affidavit  for  pub- 
lication of  summons,  showing  that  it  had 
issued;  the  order  of  publication,  showing 
the  same  thing;  the  affidavit  of  the  printer, 
showing  publication  containing  a  copy  of 
the  summons;  the  affidavit  of  mailing; 
and  the  decree,  reciting  due  service  on 
and  the  default  of  the  defendant.  Kahn 
v.  Matthai,  115  Cal.  689;  47  Pac.  698.  The 
recital  of  service  in  the  judgment  is  only 
prima  facie  evidence  of  service,  where  the 
judgment  is  directly  attacked,  and  is  never 
conclusive,  except  where  the  attack  is  col- 
lateral. Whitney  v.  Daggett,  108  Cal.  232; 
41  Pac.  471.  To  sustain  a  judgment  di- 
rectly attacked,  the  record  must  show  that 
the  court  had  jurisdiction  of  the  person 
against  whom  the  judgment  was  rendered, 
and  that  the  judgment  was  warranted  by 
the  allegations  of  the  pleadings  of  the 
party  in  whose  favor  it  was  rendered;  and 
in  determining  that  question,  the  recitals 
in  the  judgment  cannot  be  regarded:  the 
question  is,  whether  the  record  sustains 
the  judgment,  and  such  recitals,  there- 
fore, will  not  be  accepted  as  a  substitute 
for  the  summons  and  the  proof  of  service. 
McKinlay   v    Tuttle,   42   Cal.   570.     Where 


781 


JUDGMENT,    VALIDITY,    VACATING,    ETC. — APPEAL. 


§670 


service  is  made  by  publication,  the  record 
must  affirmatively  show  proper  service,  or, 
upon  tlirect  attack,  it  will  be  held  that  the 
court  did  not  acquire  jurisdiction.  Weeks 
V.  Garibaldi  etc.  Mining  Co.,  73  Cal.  599; 
15  Pac.  ;',(12. 

Correction  of  clerical  errors  in  judgment. 
Clerical  errors  in  a  judgment,  sliown  by 
the  record,  may  be  corrected  at  any  time, 
so  as  to  make  the  entry  correspond  with 
the  judgment  rendered;  and  this  may  be 
done  even  after  an  appeal  and  affirmance 
of  the  judgment.  Drevfuss  v.  Tompkins, 
67  Cal.  :i;!9;  7  Pac.  l'^2. 

Validity  of  judgment.  A  judgment  is 
void  upon  its  face,  only  when  that  fact  is 
made  apjiarent  upon  an  inspection  of  the 
judgment  roll.  People  v.  Thomas,  lOl  Cal. 
571;  36  Pac.  9;  and  see  Hahn  v.  Kellv,  34 
Cal.  391;  94  Am.  Dec.  742;  .Tacks  v.  Baldez, 
97  Cal.  91:  31  Pac.  899;  People  v.  Temple, 
103  Cal.  447;  37  Pac.  414;  Latta  v.  Tutton, 
122  Cal.  379;  68  Am.  St.  Rep.  30;  58  Pac. 
844.  A  judgment  void  upon  its  face  is 
one  that  appears  to  be  void  upon  an  in- 
spection of  the  judgment  roll:  the  mere 
absence  therefrom  of  a  paper  showing  ser- 
vice of  summons  cannot  invalidate  the 
judgment,  where  the  judgment  itself  shows 
that  the  defendant  was  duly  served;  and 
such  recitals  or  findings  are  as  conclusive 
upon  the  parties,  in  all  collateral  proceed- 
ings, as  any  adjudication  of  the  court,  and 
it  must  be  presumed  that  they  were  sup- 
ported by  sufficient  testimony  not  set  forth 
in  the  record.  People  v.  Harrison,  84  Cal. 
607;    24    Pac.    311;    Whitnev    v.    Daggett, 

108  Cal.  232;  41  Pac.  471.  In  determining 
whether  or  not  the  invalidity  of  a  judg- 
ment by  default  is  apparent  from  an  in- 
spection thereof,  the  affidavit  for  the 
publication  of  summons  and  the  order 
directing  publication  may  be  considered. 
People  V.  Mulcahy,  159  Cal.  34;  112  Pac. 
853.  The  findings  and  the  judgment  may 
be  incorporated  in  the  same  document, 
and  the  judgment  is  not  rendered  ineffec- 
tive for  that  reason.    Hopkins  v.  Warner, 

109  Cal.  133;  41  Pac.  S6S. 

Vacating  or  setting  aside  judgment.  A 
judgment,  void  on  its  face,  which  requires 
only  an  inspection  of  the  judgment  roll  to 
show  its  invalidity,  will  be  set  aside,  on 
motion,  by  the  court  rendering  it,  at  any 
time  after  its  entry;  and  a  judgment  void 
in  fact  for  want  of  jurisdiction  over  the 
person  of  the  defendant,  but  the  invalidity 
of  which  does  not  appear  from  the  judg- 
ment roll,  may  be  set  aside,  upon  motion, 
within  a  reasonable  time  after  its  entry. 
People  V.  Temple,  103  Cal.  447;  37  Pac. 
414;  and  see  People  v.  Greene,  74  Cal.  400; 
5  Am.  St.  Rep.  448;  16  Pac.  197;  Peo!)le 
V.  Davis,  143  Cal.  673;  77  Pac.  651.  The 
court  may  at  any  time  set  aside  a  judg- 
ment, entered  on  default,  by  the  clerk, 
when  it  apjiears  from  the  judgment  roll 
that  the  clerk  had  no  authority  to  enter  it. 


Wharton  v.  Harlan,  68  Cal.  422;  9  Pac. 
727;  People  v.  Greene,  74  Cal.  400;  5  Am. 
St.  Rep.  448;  16  Pac.  197;  Hyde  v.  Red- 
ding, 74  Cal.  493;  16  Pac.  380.  To  obtain 
an  order  vacating  a  judgment  on  the 
ground  of  a  defect  in  the  affidavit  for 
publication  of  summons,  the  judgment 
must  be  void  on  the  face  of  the  record, 
or  in  other  words,  it  should  ajipcar  from 
the  record  tliat  the  affidavit  was  so  de- 
fective as  to  confer  no  jurisdiction  on  the 
trial  judge  to  make  the  order  of  jtublica- 
tion.  People  v.  Wrin,  143  Cal.  11;  76  Cal. 
646.  A  judgment  cannot  be  vacated  or 
set  aside,  except  upon  application  pur- 
suant to  §  473,  ante,  unless  its  invalidity 
is  apparent  from  an  inspection  of  the  judg- 
ment roll;  if  its  invalidity  does  not  apjiear 
from  such  insf)ection,  the  sole  remedy  of 
the  aggrieved  party,  who  may  not  in  fact 
have  been  served  with  process,  must  be 
found  in  a  new  action  on  the  ecJjuity  side 
of  the  court.  People  v.  Davis.  143  Cal.  673; 
77  Pac.  671.  The  record  or  judgment  roll 
cannot  be  impeached  for  want  of  jurisdic- 
tion, by  evidence  aliunde;  hence,  the  min- 
utes and  files  of  the  court  are  inadmissible 
for  that  purpose.  Ballerino  v.  Superior 
Court,  2  Cal.  App.  759;  84  Pac.  225. 

Appeal.  The  record  of  the  judgment  is 
the  judgment  roll,  and  the  statute  has 
provided  of  what  this  shall  consist;  and, 
upon  an  appeal  from  a  final  judgment,  the 
only  papers  that  can  be  considered,  where 
tLere  is  no  bill  of  exceptions,  are  the  notice 
of  appeal  and  the  judgment  roll.  Sichler 
V.  Look,  93  Cal.  600;  29  Pac.  220.  On  an 
appeal  from  a  judgment,  without  a  state- 
ment or  bill  of  exceptions,  the  court  will 
review  the  judgment  roll  only.  McAbee  v. 
Randall,  41  Cal.  136.  A  party  is  not  pre- 
cluded, on  appeal,  from  using  a  bill  of 
exceptions  made  up  and  settled  pursuant 
to  §  650,  ante,  by  the  mandate  of  this  sec- 
tion, that  the  clerk  shall  make  up  the 
judgment  roll  immediately  after  the  entry 
of  judgment;  and  such  bill  ujay  form  part 
of  the  record  on  appeal  from  the  judgment. 
Caldwell  v.  Parks,  47  Cal.  640;  Berry  v. 
San  Francisco  etc.  R.  R..Co.,  47  Cal.  643. 
Where  the  only  question  that  can  arise 
upon  appeal  is  a  legal  one,  the  appellate 
court  is  limited,  in  its  examination,  to  the 
papers  mentioned  in  the  first  subdivision 
of  this  section.  Crackel  v.  Crackel,  17  Cal. 
App.  600;  121  Pac.  295.  The  amendment 
to  this  section  in  1907,  making  orders  strik- 
ing out  pleadings  a  part  of  the  judgment 
roll,  did  not  enlarge  the  scope  of  an  appeal 
taken  solely  from  an  order  denying  a  mo- 
tion for  a  new  trial.  Stockton  Iron  Works 
V.  Walters,  IS  Cal.  App.  373;  123  Pac.  240. 
On  an  appeal  from  an  interlocutor}'  decree 
in  partition,  it  is  the  entry  of  the  inter- 
locutory decree,  and  not  the  mere  minis- 
terial act  of  the  clerk  in  compiling  the 
judgment  roll,  which,  by  the  very  contem- 
plation of  the  law,  is  to  be  done  after  such 


§671 


MANNER  OF   GIVING   AND   ENTERING   JUDGMENT. 


782 


entry,  which  sets  the  statute  of  limitations 
running  for  the  purpose  of  an  appeal.  Dore 
V.  Klumpke,  140  Cal.  356;  73  Pae.  1064. 

CODE  COMMISSIONERS'  NOTE.  A  judgment 
does  not  depend  for  its  validity  upon  the  clerk 
performing  his  duty  in  making  up  the  judgment 
roll,  or  in  preserving  the  papers.  Lick  v.  Stock- 
dale,  18  Cal.  219;  Sharp  v.  Lumley,  34  Cal.  611; 
Sharp  V.  Daugney,  33  Cal.  505.  An  answer 
stricken  out  by  order  of  the  court  is  still  entitled 
to  a  place  in  the  judgment  roll.  Abbott  v.  Doug- 
lass, 28  Cal.  295.  An  order  overruling  a  de- 
murrer is  part  of  the  judgment  roll.  Abadie  v. 
Carrillo,  32  Cal.  172.  Bills  of  exceptions  are 
part  of  the  judgment  roll.  Wetherbee  v.  Carroll, 
33  Cal.  549;  More  v.  Del  Valle,  28  Cal.  170. 
For   judgment    roll   in   cases    of   judgment    by    de- 


fault, see  Hahn  ▼.  Kelly,  34  Cal.  403,  94  Am. 
Dec.  742,  cited  and  quoted  at  length  in  subd.  1 
of  note  to  §  415,  ante.  The  affidavit  on  which 
a  motion  to  striKe  out  an  answer  is  based  does 
not  form  part  of  the  judgment  roll.  Dimick  v. 
Campbell,  31  Cal.  238.  The  motion  and  order 
to  strike  out  portions  of  the  original  complaint 
are  not  parts  of  the  judgment  roll.  Sutter  v. 
San  Francisco,  36  Cal.  114;  Harper  v.  Minor,  27 
Cal.  109;  Dimick  v.  Campbell,  31  Cal.  239;  Sharp 
v.  Daugney,  33  Cal.  513.  The  action  of  the  court 
on  demurrer  is  part  of  the  judgment  roll,  and  no 
exception  need  be  taken.  Smith  v.  Lawrence,  38 
Cal  28,  99  Am.  Dec.  344,  overruling,  to  this  ex- 
tent, Bostwick  V.  McCorkle,  22  Cal.  669.  An 
order  sustaining  the  demurrer  to  defendant  s 
cross-complaint  constitutes  part  of  the  judgment 
roll.    Packard  v.  Bird,  40  Cal.  378. 


§  671.  Judgment  lien,  when  it  begins  and  when  it  expires.  Immediately 
after  filing  the  judgment  roll,  the  clerk  must  make  the  proper  entries  of 
the  judgment,  under  appropriate  heads,  in  the  docket  kept  by  him;  and 
from  the  time  the  judgment  is  docketed  it  becomes  a  lien  upon  all  the 
real  property  of  the  judgment  debtor  not  exempt  from  execution  in  the 
county,  owned  by  him  at  the  time,  or  which  he  may  afterwards  acquire, 
until  the  lien  ceases.  The  lieu  continues  for  five  years,  unless  the  enforce- 
ment of  the  judgment  be  stayed  on  appeal  by  the  execution  of  a  sufficient 
undertaking  as  provided  in  this  code,  in  which  case  the  lien  of  the  judg- 
ment and  any  lien  by  virtue  of  an  attachment  that  has  been  issued  and 
levied  in  the  action  ceases. 


Judgment-docket.     See  post,  §§  672-674. 

Recording  transcript  of  docket  in  another 
county.    Post,  §  674. 

Judgment  after  decedent's  death,  on  verdict, 
etc.,  before.    Post,  §  1506. 

Undertaking  on  appeal.    Post,  §§  941  et  seq. 

Legislation  §  671.  1.  Enacted  March  11,  1872 
(based  on  Practice  Act,  §  204),  (1)  changing 
"shall"  to  "must,"  in  first  line,  (2)  changing 
the  words  "shall  become"  to  "becomes,"  before 
"a  lien,"  (3)  omitting  the  word  "said"  before 
"lien  expires,"  and  (4)  changing  the  words  "shall 
continue"  to  "continues,"  in  the  last  sentence, 
which  then  read:  "The  lien  continues  for  two 
years,  unless  the  judgment  be  previously  satis- 
fied." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  320, 
(1)  changing  the  word  "expires"  to  "ceases," 
after  "until  the  lien,"  and  (2)  changing  the  last 
sentence  to  read:  "The  lien  continues  for  two 
years,  unless  the  enforcement  of  the  judgment  be 
stayed  on  appeal  by  the  execution  of  a  sufficient 
undertaking,  as  provided  in  this  code,  in  which 
case   the  lien   of  the  judgment   ceases." 

3.   Amended   by   Stats.   1895,  p.  36. 

Rendition  of  judgment.  The  making  and 
filing  of  findings  of  fact  and  conclusions 
of  law  constitute  the  rendition  of  judg- 
ment, which  is  a  judicial  act;  its  entry  is 
a  ministerial  act.  Baum  v.  Eoper,  1  Cal. 
App.  43.5;  82  Pac.  390. 

Docketing  of  judgment.  Docketing  a 
judgment  consists  in  the  clerk's  entering 
in  the  docket  in  the  clerk's  oflice  a  brief 
abstract  of  the  judgment,  as  prescribed  by 
§  672,  post,  and  §  4178,  subd.  3,  Pol.  Code, 
at  the  time  prescribed  by  §  670,  ante;  and 
there  is  no  judgment  lien  if  the  require- 
ments of  the  law  are  not  carried  out.  Eby 
V.  Foster,  61  Cal.  282;  Eldridge  v.  Wright, 
55  Cal.  531.  The  docketing  of  a  judgment 
is  merely  a  ministerial  act,  for  the  purpose 
of  creating  a  lien   by  the  judgment  upon 


the  real  property  of  the  debtor.  Los 
Angeles  County  Bank  v.  Eaynor,  61  Cal. 
145;  and  see  Otto  v.  Long,  144  Cal.  144;  77 
Pac.  885.  The  judgment  cannot  be  dock- 
eted, nor  can  the  judgment  be  created, 
before  the  entry  of  the  judgment  and  the 
making  up  and  filing  of  the  judgment  roll. 
Menzies  v.  Watson,  105  Cal.  109;  38  Pac. 
641.  The  time  of  docketing  must  appear 
by  the  record;  the  commencement  of  the 
lien  is  the  day  of  docketing;  and  being 
purely  a  statutory  lien,  neither  its  exist- 
ence nor  its  commencement  can  be  proved 
by  parol.  Eby  v.  Foster,  61  Cal.  282.  The 
judgment  is  a  lien  from  the  time  it  is 
docketed;  and  to  entitle  a  judgment  credi- 
tor, having  a  lien,  to  redeem,  he  must  pro- 
duce a  copy  of  the  docket  of  the  judgment: 
a  copy  of  the  judgment  itself  is  not  suffi- 
cient.   Haskell  v.  Manlove,  14  Cal.  54. 

Nature  of  judgment  lien.  The  lien  of  a 
judgment  is  statutory:  no  such  lien  existed 
at  common  law.  Boggs  v.  Dunn,  160  Cal. 
285;  116  Pac.  743.  The  obvious  intention 
is  to  charge  the  estate  of  the  judgment 
debtor,  and  to  give  the  creditor  a  certain 
time  to  get  his  money,  and  by  the  statute 
it  is  intended  that  this  time  shall  run 
from  the  date  of  the  judgment,  or  period 
at  which  the  plaintiff  is  in  a  situation  to 
take  out  execution  and  pursue  his  remedy 
to  final  satisfaction;  the  lien  is  but  an 
incident  of  the  judgment,  and  the  statu- 
tory limitation  of  the  lien  commences  to 
run  only  from  the  date  of  the  remittitur 
from  the  appellate  court.  Dewey  v.  Latson, 
6  Cal.  130;  Englund  v.  Lewis,  25  Cal.  337. 
The    judgment    becomes    a    lien,    only    by 


783 


JUDGMENT    LIEN — INTERESTS   AFFECTED — COSTS. 


§(i71 


force  of  the  statute,  and  depends  for  its 
existence  upon  conditions  of  statutory 
origin.  Culver  v.  Kogors,  :i8  Cal.  r)2U.  The 
judgment  lien  amounts  merely  to  a  security 
against  subsequent  purchasers  and  encum- 
brancers; for  the  judgment  creditor  gets 
no  estate  in  the  lands,  and,  though  ho 
should  release  all  his  right  to  the  hunl,  he 
might  afterwards  extend  it  by  execution. 
Bagley  v.  Ward.  37  Cal.  121;  99  Am.  Dec. 
2.j(J.  The  lien  of  a  judgment  is  not  a  con- 
veyance.   Wilcoxson  V.  .Miller,  49  Cal.  193. 

Creation  of  judgment  lien.  A  judgment 
for  the  foreclosure  of  a  mortgage,  and  pro- 
viding for  any  deficiency  in  the  event  that 
the  mortgaged  property  is  insufficient  to 
pay  the  debts,  does  not  create  a  judgment 
lien.  Chapin  v.  Broder,  16  Cal.  403;  cited 
in  Englund  v.  Lewis,  25  Cal.  337.  A  judg- 
ment for  the  foreclosure  of  a  mortgage 
does  not  become  a  lien  on  the  real  estate, 
but  when  the  deficiency,  if  any,  is  ascer- 
tained after  the  sale  of  the  mortgaged 
premises  and  docketed,  the  same  becomes 
a  lien  from  that  time.  Culver  v.  Rogers, 
28  Cal.  520;  Hibberd  v.  Smith,  50  Cal.  511; 
Carpenter  v.  Lewis,  119  Cal.  18;  50  Pac. 
925.  A  judgment  of  a  justice  of  the  peace 
is  made  a  lien,  only  by  filing  an  abstract 
thereof  in  the  office  of  the  recorder,  as 
provided  by   §  900,  post.    Beaton   v.   Reid, 

111  Cal.  484;  44  Pac.  167.  Any  interval 
of  time,  however  small,  in  which  title  vests 
in  the  judgment  debtor,  is  sufficient  for 
the  lien  of  the  judgment  to  attach.  Mar- 
riner  v.  Smith,  27  Cal.  650;  Hibberd  v. 
Smith,  50  Cal.  511;  Eby  v.  Foster,  61  Cal. 
2S2. 

Transcript  of  judgment.  The  production 
of  a  transcript  of  the  judgment,  by  one 
seeking  to  redeem,  is  not  equivalent  to  the 
production  of  a  copy  of  the  docket.  Wil- 
coxson V.  Miller,  49  Cal.  193. 

Interests  er  estates  affected  by  judgment 
lien.  The  judgment  lien  is  purely  statu- 
tory; and  as  the  statute  provides  that  the 
judgment  shall  become  a  lien  from  the 
time  it  is  docketed,  only  upon  the  property 
of  the  judgment  debtor  not  exem])t  from 
execution,  that  is,  property  not  subject  to 
forced  sale,  it  does  not  attach  to  property 
declared  a  homestead  (Ackley  v.  Chamber- 
lain, 16  Ctil.  181;  76  Am.  Dec.  516;  Bow- 
man V.  Norton,  16  Cal.  213;  Dam  v.  Zink, 

112  Cal.  91;  44  Pac.  331;  Yardley  v.  San 
Joaquin  Valley  Bank,  3  Cal.  App.  651;  86 
Pac.  978;  Holin  v.  Pauly,  11  Cal.  App.  724; 
106  Pac.  266);  it  does  not  even  attach  to 
the  excess  above  the  statutory  homestead 
valuation.  Boggs  v.  Dunn,  160  Cal.  285; 
116  Pac.  743;  Hohn  v.  Pauly,  11  Cal.  App. 
724;  106  Pac.  266.  Although  a  judgment 
for  money  is  docketed  against  a  judgment 
debtor,  yet  his  subsequent  discharge  in 
bankruptcy  releases  his  homestead,  as  no 
judgment  lien  attached  thereto.  Boggs  v. 
Dunn,  160  Cal.  283;  116  Pac.  743.  A  judg- 
ment is  a  lien  only  upon  the  real  property 


owned  by  the  judgment  debtor  at  the  time 
of  the  docketing  of  the  judgment,  or  after- 
wards, and  before  the  expiration  of  the 
lien,  acquired.  Wolfe  v.  Langford,  14  Cal, 
App.  359;  112  Pac.  203.  An  heir  or  a 
devisee  is,  upon  the  death  of  his  testator 
or  ancestor,  immeiliately  vested  with  the 
interest  in  the  real  proj)erty  inherited  by 
or  devised  to  him,  subject  to  the  rights  of 
administration;  hence,  a  jmlgment  lien,  as 
against  him,  immediately  attaches  to  such 
jiroperty.  Martinovich  v.  Marsicano,  137 
Cal.  354;  70  Pac.  459;  and  see  Hibernia 
Sav.  &  L.  Soe.  v.  London  etc.  Fire  Ins.  Co., 
1S8  Cal.  257;  71  Pac.  334;  Gutter  v.  Dalla- 
more,  144  Cal.  665;  79  Pac.  383.  The  lien 
of  a  judgment  creates  a  preference  over 
subsequently  acquired  rights,  but  in  equity 
it  does  not  attach  to  the  mere  legal  title 
to  the  land,  as  existing  in  the  defen<lant 
at  its  rendition,  to  the  exclusion  of  a  prior 
equitable  title  in  a  third  person.  Zenda 
Mining  etc.  Co.  v.  Tiffin,  11  Cal.  App.  62; 
104  Pac.  10.  The  statutory  lien  of  a  judg- 
ment upon  the  real  estate  of  a  judgment 
debtor  can  attach  only  upon  property  in 
which  he  has  a  vested  legal  interest;  hence, 
where  title  to  property  has  passed  to  and 
is  vested  in  another,  there  is  nothing 
upon  which  the  lien  of  a  judgment  subse- 
quently recovered  can  attach.  People  v. 
Irwin,  14  Cal.  428.  A  judgment  duly  dock- 
eted against  a  debtor,  who  makes  a  fraudu- 
lent conveyance  prior  to  its  rendition, 
becomes  a  lien  on  the  real  property  so  con- 
veyed. First  Nat.  Bank  v.  Maxwell,  123 
Cal.  360;  69  Am.  St.  Rep.  64;  55  Pac.  980. 
An  unrecorded  mortgage  takes  priority  over 
a  subsequent  judgment  lien.  Bank  of  Ukiah 
V.  Petaluma  Sav.  Bank,  100  Cal.  590;  35 
Pac.  170.  A  judgment  against  a  mort- 
gagor, after  the  sale  and  foreclosure  of  the 
premises,  is  not  a  lien  thereon,  as  the  mort- 
gagor's title  is  divested  by  the  sale;  the 
purchaser  takes  the  entire  beneficial  in- 
terest in  the  property,  except  actual  pos- 
session, and  is  considered  in  equity  the 
owner,  subject  only  to  have  his  title  di- 
vested by  redemption.  Robinson  v.  Thorn- 
ton, 102iCal.  675;  34  Pac.  120.  The  lien 
established  by  a  judgment  of  divorce  upon 
the  real  estate  of  the  husband  does  not 
derive  its  force  from  this  section.  Gaston 
V.  Gaston,  114  Cal.  542;  55  Am.  St.  Rep. 
86;  46  Pac.  609.  A  leasehold  interest  is 
not  such  an  estate  in  real  property  as  is 
affected  by  the  lien  given  by  this  section. 
Summerville  v.  Stockton  Milling  Co.,  142 
Cal.  529;  76  Pac.  243.  A  judgment  operates 
as  a  lien  only  on  the  interest  of  the  judg- 
ment debtor:  a  mere  naked  trustee  has  no 
interest  in  the  land  uj^on  which  a  judgment 
lien  can  attach.  Riverdale  Mining  Co.  v. 
Wicks,  14  Cal.  App.  526;  112  Pac.  896. 

Lien  of  judgment  for  costs.  A  judgment 
for  costs  in  partition  proceedings  may  or 
may  not  be  a  lien  upon  the  property  of  the 
judgment  debtor,  according  as  they  are  or 


§671 


MANNER  OF  GIVING   AND   ENTERING   JUDGMENT. 


784 


are  not  specified  in  the  judgment,  as  pro- 
vided by  §  796,  post;  and  where  they  are 
60  specified,  they  constitute  a  lien  on  the 
several  shares,  and  the  judgment  may  be 
enforced  by  execution  against  such  shares, 
and  against  other  property  held  by  the  re- 
spective parties,  and  such  lien  takes  effect 
by  relation  at  the  time  of  the  filing  of  the 
notice  of  lis  pendens  and  without  docket- 
ing the  judgment;  but  in  case  costs  are  not 
allowed  by  and  included  in  the  judgment, 
but  reserved,  and,  subsequently,  a  distinct 
judgment  for  costs  is  rendered,  such  judg- 
ment becomes  a  lien  only  upon  being  dock- 
eted, and  in  the  same  manner  as  other 
judgments.  Lacoste  v.  Eastland,  117  Cal. 
673;  49  Pac.  1046.  The  attachment  lien 
is  merged  in  the  judgment  lien,  and  ceases, 
except  to  maintain  the  priority  of  the  lien 
upon  the  property  attached,  which  priority 
is  maintained  and  enforced  under  the  judg- 
ment. Bagley  v.  Ward,  37  Cal.  121;  99 
Am.  Dee.  256. 

How  judgment  lien  may  be  affected. 
The  judgment  lien  is  suspended  by  appeal, 
only  where  execution  of  the  judgment  is 
stayed;  if  execution  is  not  stayed,  the  life 
of  the  lien  commences  at  the  docketing  of 
the  judgment.  Chapin  v.  Broder,  16  Cal. 
403;  Englund  v.  Lewis,  2.5  Cal.  337.  The 
death  of  the  judgment  debtor  does  not  de- 
stroy the  judgment  lien;  nor  do  the  presen- 
tation of  the  judgment  as  a  claim  against 
the  estate,  and  the  recovery  of  another 
judgment  upon  the  rejected  claim,  merge 
the  original  judgment  nor  destroy  its  lien. 
Estate  of  Wiley,  138  Cal.  301;  71  Pac.  441; 
Morton  v.  Adams,  124  Cal.  229;  71  Am.  St. 
Rep.  53;  56  Pac.  1038.  The  effect  of  the 
judgment  lien  cannot  be  destroyed  by  an 
act  providing  that  a  laborer  doing  work 
for  a  corporation  shall,  under  certain 
circumstances,  have  a  lien  upon  all  the 
property  of  the  corporation.  Johnson  v. 
Goodyear  Mining  Co.,  127  Cal.  4;  78  Am. 
St.  Eep.  17;  47  L.  R.  A.  338;  59  Pac.  304. 
Where  the  lien  of  an  attachment  has  be- 
come merged  in  a  subsequent  judgment, 
the  lien  of  the  judgment,  including  that 
of  the  attachment  so  merged,  ceases  at  the 
expiration  of  five  years  from  the  date  of 
the  judgment.  Water  Supply  Co.  v.  Sar- 
now,  6  Cal.  App.  586;  92  Pac.  667.  The 
time  during  which  the  judgment  lien  runs 
commences  at  the  docketing  of  the  judg- 
ment, unless  execution  is  stayed  by  an 
appeal  M^ith  a  stay  bond,  and  the  time"^  dur- 
ing which  execution  is  thus  stayed  is  to  be 
omitted  from  the  computation;  but  any 
period  of  time  between  the  docketing  of 
the  judgment  and  the  stay  of  proceedings 
is  to  be  included  in  the  computation;  a 
stay  of  proceedings,  either  by  order  of  the 
court  pending  a  motion  for  a  new  trial  or 
by  an  appeal  with  a  stay  bond,  merely  sus- 
pends the  running  of  the  statutory  time, 
but  it  does  not  postpone  the  commence- 
ment of  the  statutory  limitation  until  after 


the  stay  has  ceased.  Barroilhct  v.  Hatha- 
way, 31  Cal.  395;  89  Am.  Dec.  193. 

Execution  under  judgment  lien.  The 
judgment  lien  binds  the  lands,  and  the  exe- 
cution comes  as  a  power  to  sell;  the  gen- 
eral lien  is  created  by  the  judgment,  and 
the  execution  is  merely  to  give  that  lien 
efi'ect,  not  by  vesting  a  possessory  right 
in  the  plaintiff  to  the  land  affected  by  it, 
but  by  designating  it  for  a  conversion  into 
money  bj'  the  operation  of  the  fieri  facias, 
and  the  act  of  the  sheriff  by  virtue  of  it; 
and  although  a  lev}'  of  the  execution  is 
unnecessary  to  give  effect  to  the  judgment 
lien,  yet  that  course  is  usually  pursued. 
Bagley  v.  Ward,  37  Cal.  121;  99  Am.  Dec. 
256.  The  levy  of  an  execution,  during  the 
period  of  the  lien,  neither  creates  a  new 
lien  nor  extends  the  judgment  lien;  and 
the  judgment  creditor  must,  in  order  to 
preserve  his  priority,  sell  the  real  prop- 
erty within  the  period  of  the  statutory 
lien  of  the  judgment.  Bagley  v.  Ward,  37 
Cal.  121;  99  Am.  Dec.  256;  Rogers  v.  Druf- 
fel,  46  Cal.  654.  A  sale  under  execution 
relates  to  the  time  of  the  levy  only;  and 
where  execution  is  levied  during  the  life 
of  the  lien,  but  is  returned  without  sale, 
a  second  execution,  levied  after  the  expira- 
tion of  the  lien,  relates  back  only  to  the 
time  of  the  levy.  Bagley  v.  Ward,  37  Cal. 
121;  99  Am.  Dec.  256.  Execution  may  be 
issued  and  levied  before  the  docketing  of 
the  judgment,  and  the  sale  and  conveyance 
thereunder  will  pass  all  the  interest  held 
by  the  judgment  debtor  at  the  time  of  the 
levy.  Hastings  v.  Cunningham,  39  Cal.  137; 
Los  Angeles  County  Bank  v.  Raynor,  61 
Cal.  145;  Baum  v.  Roper,  1  Cal.  App.  435; 
S2  Pac.  390.  The  relation  of  the  judgment 
lienor  to  the  property  may  be  different,  in 
some  respects,  after  levy  of  execution,  and 
new  relations  may  arise  thereby  to  the 
debtor  and  other  creditors;  but  the  issu- 
ance of  levy  and  execution  are  not  neces- 
sary to  the  lien.  Estate  of  Wiley,  138  Cal. 
301;  71  Pac.  441.  The  levy  of  the  execu- 
tion has  not  the  effect  of  constituting  a 
judgment,  not  otherwise  such,  a  lien  upon 
the  premises:  the  lien  of  the  execution  is 
not  that  of  the  judgment,  and  the  execu- 
tion neither  creates  a  judgment  lien  nor 
extends  a  judgment  lien  once'  created. 
Beaton  v.  Reid,  111  Cal.  484;  44  Pac.  167. 

Sale  of  property  under  judgment  lien. 
The  sale  must  be  made  during  the  statu- 
tory period  of  the  judgment  lien,  in  order 
to  preserve  the  priority  thereby  acquired 
(Bagley  v.  Ward,  37  Cal.  121;  99  Am.  Dec. 
256);  and  where  the  lien  is  subordinate 
to  another,  the  interest  of  the  debtor  in 
the  land  should  be  sold  subject  to  the  su- 
perior lien.  Petaluma  Sav.  Bank  v.  Superior 
Court,  111  Cal.  488;  44  Pac.  177.  The 
judgment  creditor  may  petition  the  pro- 
bate court  for  a  sale  of  the  property  upon 
which  he  holds  a  judgment  lien  against 
the   deceased;    and  the   statute   of  limita- 


785 


ATTACHMENT    LIEN — EXEMPTION — FRAUD — RELIEF. 


§671 


tions  is  BUspended  on  the  judgment  lien 
by  the  filinjj  of  such  j>etitioii.  Estate  of 
Wiley,  138  C'al.  ;;0];  71  Tac.  441.  An  order 
enjoining  a  sale  under  execution  does  not 
stop  the  running  of  the  statute.  Rogers  v. 
Drun'el,4G  Cal.  654. 

Attachment  lien  In  its  relation  to  judg- 
ment lien.  Laud  subject  to  attarlimont 
cannot  be  conveyed  by  a  debtor  so  as  to 
e.xenipt  it  from  a  judgment  lien.  Riley  v. 
Nance,  97  Cal.  206;  32  Pac.  315  (Beatty, 
C.  J.) ;  and  see  People  v.  Irwin,  14  Cal.  434. 
Where,  before  judtinient,  an  attachment 
debtor  conveys  land,  there  is  no  judgment 
lien  upon  the  property  into  which  the  at- 
tachment lien  can  merge,  nor  is  the  attach- 
ment lien  released  by  the  execution  of  a 
bond  on  appeal  from  the  judgment.  Riley 
V.  Nance,  97  Cal.  203;  31  Pac.  1126;  and 
see  Bagley  v.  Ward,  37  Cal.  121;  99  Am. 
Dec.  256.  The  effect  of  a  stay  bond  on 
appeal  is  to  extinguish  only  the  liens  re- 
sulting from  the  judgment,  and  from  pro- 
cess thereunder.  The  attachment  lien  is 
not  extinguished  by  such  undertaking,  and, 
although  merged  in  the  judgment  lien,  it 
may  be  revived,  where  the  judgment  lien, 
instead  of  expiring  by  lapse  of  time,  is 
extinguished  by  acts  of  the  defendant, 
Rilev  V.  Nance,  97  Cal.  206;  32  Pac.  315 
(Beatty,  C.J.) . 

Finding  as  to  exemption.  A  docketed 
judgment  is  not  necessarily  a  lien;  and 
where  the  land  is  a  homestead,  and  there- 
fore exempt  from  execution,  it  is  not  neces- 
sary that  the  court  shall  state  that  fact 
as  a  reason  for  finding  that  the  defendant 
had  no  lien;  the  only  purpose  of  findings 
being  to  answer  the  questions  put  by  the 
pleadings,  if  the  facts  are  stated  in  the 
findings  in  the  same  way  in  which  they  are 
stated  in  the  pleadings,  they  are  sufficient. 
Dam  V.  Zink,  112  Cal.  91  ;  44  Pac.  331. 

Fraudulent  conveyance.  The  fact  that 
claims  allowed  by  an  administrator  were 
upon  a  judgment  which  was  a  lien  upon 
property  prior  to  the  fraudulent  convey- 
ance thereof,  does  not  affect  the  right  of 
the  administrator  to  have  such  fraudulent 
conveyance  declared  void  by  judicial  de- 
cree. Ackerman  v.  Merle,  137  Cal.  157;  69 
Pac.  982. 

Equitable  relief.  The  enforcement  of  a 
judgment  lien  may  be  sought  as  affirmative 
relief  in  an  action  to  foreclose  another 
lien,  to  which  the  lien-holder  is  made  a 
party  defendant.  Hibernia  Sav.  &  L.  Soc. 
v.  London  etc.  Fire  Ins.  Co.,  138  Cal.  257; 
71  Pac.  334;  and  see  Holmes  v.  Richet,  56 
Cal.  307;  38  Am.  Rep.  54.  Equity  will 
enforce  a  judgment  lien,  where  there  is  no 
other  adequate  remedy,  or  where  the  holder 
of  the  judgment  lien  is  made  a  party  de- 
fendant in  an  action  to  foreclose  a  prior 
mortgage.  Hibernia  Sav.  &  L.  Soc.  v.  Lon- 
don etc.  Fire  Ins.  Co.,  138  Cal.  257;  71 
Pac.  334. 

Lien  of  judgment  on  after-acquired  lands.    See 
notes  13  Am.  Dec.  626;   42  L.  R.  A.  209. 
1  Fair. — 00 


Lien  of  Judgment,  whether  continued  by  suing 
out  execution.  See  notes  51  Am.  Dec.  166;  99 
Am.  ])!■<•.  2()7. 

Estates  and  interests  affected  by  judgment  lien. 
See  notes  U:;  Am.  Dec.  345;   117  Am.  St.  ICep.  776. 

Lien  of  judgment  on  homesteads.  See  note  34 
Am.  St.  J\ep.  496. 

Deficiency  judgment  on  execution  sale  as  lien 
on  piopcily  after  conveyance  by  judgment  debtor 
during  redemption  period.  See  note  13  Ann. 
Cms.  :{-J(i. 

Lien  of  judgment  upon  excess  of  homestead 
over  sLitutory  value.    See  note  Hi  Ann.  C'iis.  i;o3. 

Lien  of  judgment  as  to  unrecorded  conveyance. 
See  note   16  i^.   [i.  A.   668. 

Lieu  of  judgment  against  one  having  legal  title 
to  land  belonging  to  another.  See  note  22  L.  K.  A. 
258. 

Necessity  and  form  of  entry  or  record  of  Judg- 
ment.   See  note   28  L.   K.  A.   621. 

Lien  of  judgment  on  real  property  permitted  to- 
stand  in  debtor's  name.  See  note  30  L.  K.  A. 
(i\.  S.)  10. 

Judgment  as  lien  from  time  of  equity.  See 
note  38  L.  K.  A.  248. 

Judgment  against  individual  as  lien  on  inter- 
est of  tenant  by  entirety.  See  notes  9  L.  It.  A. 
(N.  S.;    1026;   4-J.  L.  K.  A.   (N.  S.J   555. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. The  lien  of  a  judgment  is  the  creature  of 
statute;  the  statute  provides  that  a  judgment 
shall  become  a  lien  from  the  time  it  is  docketed 
upon  the  property  of  the  judgment  debtor,  "not 
exempt  from  execution,"  which  means  upon  prop- 
erty not  subject  to  forced  sale.  The  homestead 
is  not  subject  to  sucli  sale,  either  on  execution, 
or  on  any  other  final  process  of  the  court.  Ack- 
ley  v.  Chamberlain,  16  Cal.  181;  76  Am.  Dec. 
516.  A  conveyance  made  without  authority  does 
not  affect  the  lien.  Smith  v.  Morse,  2  t  al.  524. 
The  lien  attaches  only  upon  property  in  which, 
such  deljtor  has  a  vested  legal  interest.  People 
V.  Irwin,  14  Cal.  428.  A  judgment  recovered 
against  the  husband  is  a  lien  on  the  homestead,, 
and  a  sale  of  the  homestead,  upon  an  execution 
issued  on  such  judgment,  is  void.  Ackley  v. 
Chamberlain,  16  Cal.  181;  76  Am.  Dec.  516;  Bow- 
man V.  Norton,  16  Cal.  213.  In  a  foreclosure 
suit,  the  judgment,  in  the  usual  form,  ascertained 
the  amount  due,  directed  a  sale  of  the  mortgaged 
premises,  the  application  of  the  proceeds  to  the 
payment  of  the  debts,  provided  for  the  recovery 
of  any  deficiency,  and  authorized  execution  for 
the  same.  It  was  held  that  such  a  judgment  did 
not  become  a  lien  on  the  real  estate  of  the  debtor 
from  the  time  it  was  docketed.  Chapin  v.  Broder, 
16  Cal.  103.  A  person  who  has  acquired  a  lien 
by  virtue  of  judicial  process  occupies  no  better 
position  than  a  purchaser  without  notice  in  a 
similar  case.  O'Rourke  v.  O'Connor,  39  Cal.  446. 
A  judgment  debtor  cannot  avail  himself  of  errors 
in  docketing  the  judgment,  when  the  property  has 
been  sold  under  the  judgment;  if  the  property 
sold  is  his,  the  levy  operated  as  a  lien;  if  not,  he 
has  no  right  to  complain.  Low  v.  Adams,  6  Cal. 
2  77. 

2.  Lien  cannot  be  extended.  Levying  an  exe- 
cution before  the  lien  of  the  judgment  upon  which 
the  execution  issued  expires,  does  not  operate  to 
prolong  the  lien  of  the  judgment  beyond  the  time 
limited  in  §  204  of  the  code.  The  levy  and  sale 
must  both  be  made  within  the  period  of  two  years 
limited  by  statute.  Isaac  v.  Swift,  10  Cal.  71;  70 
Am.  Dec."  698.  If  an  undertaking  on  appeal  is 
insufficient  in  amount  to  stay  proceedings,  the 
lien  of  the  judgment  is  not  extended  by  the  ap- 
peal beyond  two  years  from  the  time  of  its 
docketing;  and  this,  where  the  undertaking  was 
excepted  to,  there  being  no  effort  to  enforce  the 
judgment,  pending  the  appeal.  Guy  v.  Du  Uprey, 
16  Cal.  195;  76  Am.  Dec.  518;  see  Dewey  v. 
Latson.  6  Cal.  130:  Englund  v.  Lewis,  25  Cal. 
350;   Chapin  v.   Broder.   16  Cal.  404. 

3.  Judgment  directing  the  sale  of  property  not 
a  lien.  Englund  v.  Lewis,  25  Cal.  349;  Culver  v. 
Rogers,  28  Cal.  520. 

4.  What  will  or  will  not  discharge  the  lien. 
Creating  new  counties,  effect  of.  See  People  v. 
Hovious,  17  Cal.  471.  The  payment  by  a  judcr- 
ment  debtor,  after  a  sheriff's  sale,  extinguishes 
the  lien;   and  the  fact  that  he  takes  a  transfer  of 


§671 


MANNER  OF   GIVING   AND   ENTERING   JUDGMENT. 


786 


the  certificate  and  the  sheriff's  deed,  instead  of 
a  certificate  of  redemption,  cannot  divest  the  lieu 
of  a  subsequent  judgment.  McCarty  v.  Christie, 
13  Cal.  79.  The  perfecting  of  an  appeal  does  not 
discharge  the  lien.    Low  v.  Adams,  6  Cal.  277. 

5.  Time.  In  foreclosure  cases,  if  there  is  a 
personal  judgment  directing  a  sale  of  the  prop- 
erty, and  the  undertaking  on  appeal  only  stays 
the  sale,  and  provides  for  costs,  the  lien  of  the 
personal  judgment  on  the  judgment  debtor's  prop- 
erty, in  the  county  where  it  is  docketed,  attaches 
at  the  time  it  is  docketed,  and  expires  at  the  end 
of  two  years  from  the  time  the  personal  judg- 
ment is  docketed.  Englund  v.  Lewis,  25  Cal.  350; 
but  see  Chapin  v.  Broder,  16  Cal.  404;  Dev/ey  v. 
Latson,  6  Cal.  130.  The  two  years  during  which 
a  judgment  remains  a  lien  on  real  estate  com- 
mence to  run  from  the  docketing  of  the  judgment, 
unless  the  judgment  is  stayed  by  an  order  of  the 
court,  pending  a  motion  for  new  trial,  or  by  an 
undertaking  on  appeal.  Barroilhet  v.  Hathaway, 
31  Cal.  395;  89  Am.  Dec.  193.  Said  Justice 
Rhodes,  in  Bagley  v.  Ward,  37  Cal.  131,  99  Am. 
Dec.  256: 

"The  purpose  of  an  attachment  is  to  hold  the 
prcperty  of  the  defendant  as  security  for  such 
judgment  as  may  be  rendered  (Prac.  Act,  §  120), 
and  when  the  judgment  is  rendered  and  becomes 
a  lien  upon  the  property  attached,  the  lien  of  the 
attachment  becomes  merged  in  that  of  the  judg- 
ment, and  the  only  effect  thereafter  of  the  at- 
tachment lien  upon  the  property  is  to  preserve 
the  priority  thereby  acquired,  and  this  priority 
is  maintained  and  enforced  under  the  judgment. 
If  it  does  not  cease  at  that  time,  except  as  giv- 
ing priority  to  the  judgment  lien,  when  does  it 
cease?  Does  it  continue  after  the  judgment  lien 
has  expired  by  limitation?  The  attachment  lien, 
as  to  its  amount,  depends  upon  the  ex  parte  state- 
ment of  the  plaintiff,  while  that  of  the  judgment 
is  certain.  The  lien  of  the  latter  is  of  a  higher 
order,  if  it  is  possible  that  there  can  be  different 
ranks  among  the  liens.  We  will  hazard  the  as- 
sertion that  the  law  does  not  contemplate  the 
existence,  at  the  same  time,  of  two  distinct  liens, 
arising  by  operation  of  law  in  one  action,  for  the 
security  of  one  demand.  If  the  position  is  cor- 
rect that  the  attachment  lien  ceases,  except  as 
maintaining  priority  for  the  judgment  lien  upon 
the  property  attached,  it  does  not  revive  on  the 
expiration  of  the  judgment  lien.  Our  remarks 
are  confined  to  real  property,  as  the  judgment 
does  not  constitute  a  lien  upon  personal  property. 

"The  judgment  being  a  lien  for  two  years  from 
the  time  it  is  docketed  upon  the  real  estate  of 
the  defendant  within  the  county  in  which  the 
judgment  is  docketed,  and  a  lien  for  the  same 
time  upon  the  real  estate  in  any  county  in  which 
a  transcript  of  the  docket  is  filed  with  the  re- 
corder, such  liens  are  enforced  by  executions. 
That  is  the  only  purpose  of  the  execution  in  re- 
spect to  real  estate  while  the  judgment  lien  sub- 
sists. Section  210,  prescribing  the  form  of  the 
execution,  provides  that  it  shall  require  the 
sheriff  to  satisfy  the  judgment  out  of  the  personal 
property  of  the  debtor,  etc.,  'or  if  the  judgment 
be  a  lien  upon  real  property,  then  out  of  the 
real  property  belonging  to  him  on  the  day  when 
the  judgment  was  docketed,  or  if  the  execution 
Vie  issued  to  a  county  other  than  the  one  in 
■which  the  judgment  was  recovered,  on  the  day 
when  the  transcript  was  filed  in  the  office  of  the 
recorder  of  such  county,  stating  such  day,  or  at 
any  time  thereafter.'  This  section  manifests  the 
purpose  of  the  execution,  so  far  as  respects  the 
lands  that  are  covered  by  the  lien  of  the  judg- 
ment. Under  the  execution,  doubtless,  lands  not 
subject  to  the  judgment  lien  may  be  levied  upon. 
It  is  provided  in  §  217  that  ail  property,  both 
real  and  personal,  of  the  judgment  debtor,  'may 
be  attached  on  execution  in  like  manner  as  upon 
■writs  of  attachment.'  We  are  not  required,  in 
this  case,  to  reconcile  the  apparent  conflict  be- 
tween this  section  and  §210,  which  prescribes 
what  the  execution  shall  contain,  but  we  shall 
hereafter  recur  to  the  subject  of  a  levy  of  the 
execution  upon  real  property  not  subject  to  the 
lien    of   the    judgment. 

"The  doctrine  of  Wood  v.  Colvin,  5  Hill.  228, 
that  the  judgment  being  a  lien  upon  the  Jands, 
a    levy    is   unnecessary,    that    the   judgment   binds 


the  lands,  and  the  execution  comes  as  a  power 
to  sell,  is  often  cited  with  approbation,  and  is, 
we  think,  the  correct  rule.  The  same  principle 
is  stated  in  Catlin  v.  Jackson,  8  Johns.  543. 
The  chancellor,  in  delivering  the  unanimous  opin- 
ion of  the  court  of  errors,  says:  "In  several  es- 
sentials the  effect  of  the  execution  must  be 
different  from  a  fi.  fa.  levied  on  personal  estate 
only.  The  delivery  of  the  fi.  fa.  gives  no  new 
rights  to  the  plaintiff,  and  vests  no  new  interests. 
The  general  lien  is  created  by  the  judgment,  and 
the  execution  is  merely  to  give  that  lien  effect — 
not  by  vesting  a  possessory  right  to  the  land  af- 
fected by  it  in  the  plaintiff,  but  by  designating 
it  for  a  conversion  into  money  by  the  operation 
of  the  fi.  fa.,  and  the  act  of  the  sheriff  by  virtue 
of  it.'  Although  a  levy  of  the  execution  is  un- 
necessary to  give  effect  to  the  judgment  lien, 
yet  that  course  is  usually  pursued,  and  the  ques- 
tion arises  whether  the  levy  creates  a  new  lien 
distinct  from  that  of  the  judgment. 

"The  statute  has  not  declared  that  the  levy 
shall  constitute  a  lien.  At  common  law,  the  levy 
did  not  constitute  a  lien  upon  lands,  nor  could 
the  title  to  lands  be  affected  by  an  execution  in 
satisfaction  of  a  money  judgment.  Under  a 
levari  facias,  not  even  the  possession  of  lands, 
but  only  the  present  profits,  were  transferred; 
and  when  the  writ  of  elegit  was  given  by  statute, 
the  possession  of  a  moiety  of  the  defendant's 
lands  was  given  to  the  plaintiff.  3  Bla.  Com., 
p.  417.  Mr.  Chancellor  Kent,  in  discussing  the 
subject  of  the  lien  of  judgments,  executions,  etc., 
says:  'The  lien,  after  all,  amounts  only  to  a 
security  against  subsequent  purchasers  and  en- 
cumbrancers; for,  as  the  master  of  rolls  said,  in 
Brace  v.  Duchess  of  Marlborough,  it  was  neither 
jus  in  re  nor  jus  in  rem — the  judgment  creditor 
gets  no  estate  in  the  land  ;  and  though  he  should 
release  all  his  right  to  the  land,  he  might  after- 
wards extend  it  by  execution' :  4  Kent's  Com., 
p.  437.  A  lien  being  a  mere  priority  over  sub- 
sequent purchasers  and  encumbrancers,  it  is  a 
contradiction  of  terms  to  say  that  by  the  levy  a 
new  priority  is  acquired,  which,  instead  of  ante- 
dating, must,  of  necessity,  post-date  the  priority 
already  held. 

"The  doctrine  in  New  York  and  in  this  state 
is,  that,  in  order  to  preserve  the  priority  acquired 
by  the  judgment  lien,  the  sale  must  be  made  dur- 
ing the  statutorv  period  of  the  lien.  Isaac  v. 
Swift,  10  Cal.  81;  70  Am.  Dec.  698;  Roe  v. 
Swart,  5  Cow.  294;  Little  v.  Harvey,  9  Wend. 
158:  Tufts  V.  Tufts,  18  Wend.  621;  Graff  v.  Kip, 
1  Ed.  Ch.  619;  Pettit  v.  Shepherd,  5  Paige,  493; 
28  Am.  Dec.  437.  This  was  so  held,  on  the 
ground  that  the  opposite  rule  would  extend  the 
lien  beyond  the  time  mentioned  in  the  statute. 
It  would  seem  unaccountable  that  the  legislature 
should  have  been  so  particular  in  fixing  the 
period  of  the  existence  of  the  judgment  lien,  and 
tliat  the  courts  should  have  been  so  careful  in 
maintaining  it,  if,  at  the  same  time,  the  plaintiff 
might  have  acquired  a  lien  through  the  execution 
that  would  last  for  the  lifetime  of  the  judgment. 

"In  the  cases  cited,  when  the  executions  were 
Issued,  but  the  lands  were  not  sold  during  the 
lien  of  the  judgments,  there  was  abundant  room 
for  the  question  now  presented.  The  vice-chan- 
cellor said,  in  Graff  v.  Kip:  'A  plaintiff  must 
take  care  to  sell  the  lands  of  the  defendant  be- 
fore the  expiration  of  ten  years,  in  order  to  avoid 
the  danger  of  other  encumbrances  intervening; 
or  if  he  wishes  to  continue  the  lien  without  a 
sale,  then  he  must  have  a  fresh  judgment  dock- 
eted before  the  other  creditors  comf  in  and  ob- 
tain judgments.'  His  familiarity  with  the  effect 
of  the  levy  of  executions  would  readily  have 
suggested  to  him  the  lien  of  the  execution,  in- 
stead of  that  of  a  'fresh  judgment,'  if,  in  his 
opinion,  the  former  constituted  a  lien,  pending 
the  lien  of  the  latter.  Mr.  Justice  Harris  says: 
'The  doctrine  on  the  subject  (dormant  execu- 
tions) does  not  apply  to  real  estate,  the  lien 
upon  which  depends  upon  the  docketing  of  the 
judgment,  and  not  upon  the  execution  or  levy.' 
Muir  v.  Leitch,  7  Barb.  341. 

"There  are  several  provisions  of  the  statute 
that  throw  light  upon,  and  in  some  degree  test, 
this  question.  Suppose  a  judgment  is  docketed 
and    execution    issued    and    levied    upon    the    do- 


787 


DOCKET,    WHAT   IS,    KEPT    HOW,    AND    CONTENTS. 


§672 


fendant's  lands,  but  no  sale  made  within  the  two 
years  of  judgment  lien,  and  that,  one  year  sub- 
sequently to  the  docketing  of  the  first,  another 
creditor  obtains  and  dockets  his  judjjnii'nt  and 
issues  and  levies  his  execution  on  the  same  lands. 
The  senior  judgment,  after  the  two  years  of  its 
lien,  loses  its  priority;  and  we  have  seen  that 
a  sale  upon  execution,  after  that  time,  does  not 
extend  the  lien  of  the  judgment,  and,  during  the 
third  year  after  the  docketing  of  the  .iudguient, 
the  levy,  if  it  constituted  a  lien,  became  a  dor- 
mant lien,  for,  during  that  year,  the  junior  juilg- 
ment  has  priority,  and  a  sale  under  it  would  pass 
the  title;  and  if,  after  the  expiration  of  the  third 
year,  without  sale  under  the  junior  judgment,  the 
priority  shifts  back  to  the  first  levy,  it  must  be 
worked  out  by  a  process  of  revivor,  for  which 
we  find  no  warrant  in  the  statute.  Or,  suppose 
the  judgment  defendant  sells  and  conveys  the 
lands  during  the  existence  of  the  judgment  lien, 
and  after  the  levy  of  the  execution,  but  there 
is  no  sale  under  the  execution  until  after  the 
judgment  lien  expires,  do  the  lands  remain 
chargeable  with  the  judgment?  No  one  will  so 
affirm,  unless  he  is  prepared  to  say  that  a  judg- 
ment remains  a  lien  as  against  subsequent 
purchasers  for  five  years.  Subsequent  encum- 
brancers stand  on  the  same  footing  with  subse- 
quent purchasers  as  to  the  operation  of  prior 
liens. 

"The  Practice  Act  (§  230)  provides  for  a  re- 
demption, and  those  entitled  to  redeem  are  the 
judgment  debtor,  his  successors  in  interest,  and 
a  creditor  having  a  lien  by  judgment  or  mort- 
gage subsequent  to  that  on  which  the  property 
was  sold.  It  is  unaccountable  that  the  legisla- 
ture should  have  omitted  those  having  liens  by 
executions,  if  it  was  intended  that  the  levy  should 
create  a  lien.  It  is  provided  by  §  231  that  the 
redemptioner  shall  pay  not  only  the  purchase- 
money,  with  the  percentage,  etc.,  but  also  the 
amount  of  any  lien  prior  to  that  of  the  redemp- 
tioner. Had  the  second  creditor,  in  the  case  first 
supposed,  sold  the  lands  during  the  second  year 
of  his  lien,  the  first  creditor  could  not  have  re- 
deemed, because  he  did  not  hold  a  subsequent 
judgment  lien;  but  if  the  first  creditor  had  pur- 
chased at  that  sale,  and  a  third  .iudgment  credi- 
tor had  come  to  redeem,  he  would  not  h.Tve  been 
required  to  pay  the  amount  of  the  first  judgment, 
because  it  did  not  then  constitute  a  lien;  but  he 
would  have  to  satisfy  the  execution  issued  upon 
it,  if  the  levy  did,  in  truth,  amount  to  a  lien. 

"Under  our  statutes,  the  period  of  the  docket 
lien  is  less  than  that  during  which  an  execution 
may  issue,  and  the  same  is  the  case  in  New  York, 
as  well  as  in  many  other  states.  According  to 
the  provisions  of  §  214  of  the  Practice  Act  in 
force   up    to    1861,    an    execution   might    issue,    as 

§  672.  Docket  defined.  How  kept,  and  what  to  contain.  The  docket 
mentioned  in  the  last  section  is  a  book  which  the  clerk  keeps  in  his  ofiRce, 
with  each  pas:e  divided  into  nine  columns,  and  headed  as  follows:  Date 
of  entry  in  docket;  judsiment  debtors;  judtrment  creditors;  judgment; 
time  of  entry;  where  entered  in  judgment-book;  appeals,  when  taken: 
judgment  of  appellate  court;  satisfaction  of  judgment,  when  entered.  If 
the  judgment  is  for  the  recovery  of  money,  the  amount  must  be  stated 
in  the  docket  under  tlie  head  of  judgment;  if  the  judgment  is  for  any 
other  relief,  a  memorandum  of  the  general  character  of  the  relief  granted 
must  be  stated.  The  names  of  the  defendants  must  be  entered  in  alpha- 
betical order. 


of  course,  within  five  years  from  the  entry  of  the 
judgment;  and  after  that  time,  upon  leave  of  the 
court,  upon  showing  that  the  judgment,  or  some 
I)ortion  of  it,  remained  unsatisfied  and  due.  The 
shorter  period  of  the  judgment  lien  was  adopted 
for  the  purpose  of  leaving  real  estate  unencum- 
bered, as  far  as  possible,  consistently  with  the 
just  demands  of  creditors  for  adequate  security. 
The  brief  time  of  the  lien  of  a  mortgagi — four 
years — also  indicates  the  same  policy  of  the  law. 
.N'ot  only  would  this  purpose  bo  defeated,  if  the 
creditor  could,  during  the  judgment  lii-n,  acquire 
a  new  lien,  not  merely  coextensive  with  that  of 
the  judgment,  but  even  extending  to  a  time  after 
a  recovery  upon  the  judgment  itself  was  barred 
by  the  statute  of  limitations;  and  it  would  seem 
that  the  courts  were  trifling,  in  holding  that  the 
levy  and  proceedings  for  the  sale  did  not  extend 
the  docket  lien, — an  operation  that  would  be  use- 
liss  in  the  presence  of  a  lien  that  might  continue 
longer  than  was  possible  for  the  docket  lien.  If 
the  defendant  conveys  his  real  estate,  subject  to 
the  judgment  lien,  and  an  execution  is  thereafter 
issued  during  the  period  of  that  lien,  such  real 
estate  may  be  levied  on  and  sold  under  the  exe- 
cution, and  if  the  levy  produces  a  lien,  it  results 
that,  by  operation  of  law,  a  lien  may  be  acquired 
to  secure  the  satisfaction  of  the  judgment  upon 
property  which  the  judgment  debtor  does  not 
then  own.  No  one  would  contend  for  sm-h  a 
principle.  If  there  was  no  lien  when  the  defend- 
ant sold  the  property,  none  could  be  produced  by 
a  levy;  but  if  there  was  a  judgment  lien,  and 
the  property  conveyed  to  the  third  person  is 
levied  upon  and  sold  under  execution,  evidently 
the  sale  must  be  the  enforcement  of  the  judgment 
lien,   as  that  was  the  only  existing  lien. 

"Where  there  are  several  executions  in  the 
hands  of  the  officer  at  the  same  time,  under 
which  the  lands  are  sold,  it  is  held  that  the 
money  must  be  applied  first  to  the  satisfaction 
of  the  oldest  existing  judgment  lien.  Uoe  v. 
Swart,  5  Cow.  294;  Barker  v.  Gates,  1  How.  Pr. 
77;  Jackson  v.  Robert,  11  Wend.  422.  It  was 
held  in  Roe  v.  Swart,  supra,  that,  although  the 
execution  upon  the  first  judgment  was  issued 
within  ten  years  from  the  docketing,  yet,  as 
the  sale  was  not  made  within  the  ten  years,  the 
money  must  be  applied  to  the  satisfaction  of  the 
second  judgment.  And  where  an  execution  was 
sent  to  another  county,  and  was  received  by  the 
sheriff  before  the  judgment  was  docketed  in  that 
county,  the  execution  took  priority  from  the  date 
of  the  docketing.  Stoutenberg  v.  Vandenburg,  7 
How.  Pr.  229." 

The  docketing  creates  and  preserves  a  lien  for 
two  years:  but,  without  docketing,  execution  may 
issue.    Hastings  v.  Cunningham,  39  Cal.  137. 


Docketing  judgment.     Ante,  §  671. 
Duty    of    clerk    to    keep    docket.      Pol.    Code, 
§  4178. 

Legislation  S  672.  1.  Enacted  March  11,  1S73; 
based  on  Practice  Act,  §  205,  which  had  (1)  the 
words  "shall  keep"  instead  of  "keeps,"  after 
"clerk,"  (2)  the  word  "shall"  instead  of  "must," 
in  all  instances,  and  (3)  the  words  "in  the 
docket,"  before  "in  alphabetical  order." 


3.  Amendment  by  Stats.  1901,  p.  151;  un- 
constitutional.    See   note  ante.  5  5. 

.3.  Amended  by  Stats.  1907.  p.  720,  (1)  sub- 
stituting "nine"  for  "eight,"  (2)  inserting  "Date 
of  entry  in  docket,"  (3)  inserting  the  word  "the" 
after  "If,"  (4)  changing  the  word  "be"  to  "is," 
in  both  instances,  and  (5)  omitting  the  words 
"or  damages"  before  "the  amount" ;  the  code 
commissioner  saying,  "The  amendment  requires 
the  date   of  the  docketing  of  the  judgment  to  ap- 


§§673,674 


MANNER  OF  GIVING  AND  ENTERING  JUDGMENT. 


788: 


pear  in  the  docket,  in  order  that  some  means 
shall  exist  for  determining  when  the  judgment 
lien  commences.  The  necessity  for  such  an 
amendment  is  made  apparent  by  the  decision  in 
ilenzies  v.  Watson,   103   Cal.   109." 

Docketing  of  judgment.  Docketing  a 
judgment  consists  in  entering  in  the  docket 
in  the  clerk's  office  a  brief  abstract  of  the 
judgment;  and  it  is  the  duty  of  the  clerk 
to  enter  in  this  docket  the  title  of  the 
cause,  with  the  date  of  its  commencement, 
and  a  memorandum  of  every  subsequent 
proceeding  therein,  with  the  date  thereof; 
and  the  docket,  to  create  a  prior  statutory 
judgment  lien,  must,  of  itself,  show  the 
date  of  the  docketing  of  the  judgment. 
Eby  V.  Foster,  61  Cal.  282.  Upon  the  fil- 
ing of  the  findings  and  decree,  it  is  the 
ministerial  duty  of  the  clerk  to  enter  and 
docket  the  judgment,  and  to  prepare  and 
file  the  judgment  roll;  but  he  cannot,  by 
neglecting  to  perform  that  duty,  destroy  or 
impair  the  effect  of  the  judgment.  Baker 
V.  Brickell,  102  Cal.  620;  36  Pac.  950.  The 
"docket"  mentioned  in  this  section  is  not 
the  book  in  which  judgments  are  to  be 
entered.  Old  Settlers  Investment  Co.  v. 
White,  158  Cal.  236;  110  Pac.  922.  The 
date  of  the  entry  of  the  judgment  is  as 
important  a  part  of  the  record  as  the  entry 
itself.  Estate  of  Scott,  124  Cal.  671;  57 
Pac.  654;  and  see  Estate  of  Pichoir,  139 
Cal.  694;  70  Pac.  214;  73  Pac.  604.  Sur- 
names should  precede  christian  names,  and 
the  omission  of  the  christian  name  of  the 
judgment     debtor    does    not    deprive    the 

§  673.  Docket  to  be  open  for  inspection  without  charge.  The  docket 
kept  by  the  clerk  is  open  at  all  times,  during  office  hours,  for  the  inspection 
of  the  public,  without  charge.  The  clerk  must  arrange  the  several  dockets 
kept  by  him  in  such  a  manner  as  to  facilitate  their  inspection. 

Public  writings,  open  to  inspection.  Post, 
§§  1892,   1893. 

Legislation  §  673.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  206,  which  had    (1)   the 

§  674.  Transcript  to  be  filed  in  any  county,  and  judgment  to  become  a 
lien  there.  The  transcript  of  the  original  docket  of  any  judgment,  the 
enforcement  of  which  has  not  been  stayed  on  appeal,  certified  by  the  clerk, 
may  be  filed  with  the  recorder  of  any  other  county,  and  from  such  filing- 
the  .judgment  becomes  a  lien  upon  all  the  real  property  of  the  judgment 
debtor  not  exempt  from  execution  in  such  county,  owned  by  him  at  the 
time,  or  which  he  may  afterw^ard,  and  before  the  lien  expires,  acquire. 
The  lien  continues  for  two  years  unless  the  judgment  is  previously  satis- 
fied or  the  lien  otherwise  discharged. 


docket  of  its  useful  function  of  directing 
the  attention  of  those  interested  to  the  ex- 
istence of  the  judgment  and  to  all  its  inci- 
dents. Hibberd  v.  Smith,  50  Cal.  511.  To^ 
create  a  judgment  lien,  the  judgment  must 
be  properly  docketed:  among  other  things,, 
it  must  be  docketed  against  the  judgment 
debtor  in  his  correct  name.  Huff  v.  Sweet- 
ser,  8  Cal.  App.  689;  97  Pac.  705.  A  state- 
ment of  the  amounts  of  a  judgment,, 
entered  in  the  judgment  docket  by  pla- 
cing the  Arabic  numerals  indicating  the- 
amounts  under  the  heading,  "Amount  of 
Judgment,"  one  of  such  amounts  being  pre- 
ceded by  the  word  "Costs,"  the  dollar- 
column  being  separated  from  the  cent- 
column  by  a  vertical  red  line,  without  any 
dollar  or  cent  mark  or  any  other  designa- 
tion of  money,  as  is  common  where  sums 
of  money  are  written  in  columns,  is  a  suffi- 
cient statement  of  the  amount  of  the  judg- 
ment to  create  a  lien  under  this  section.. 
Dyke  v.  Bank  of  Orange,  90  Cal.  397;  27 
Pac.  304.  A  complaint  on  a  judgment  need 
not  allege  that  it  was  docketed.  High  v.. 
Bank  of  Commerce,  95  Cal.  386;  29  Am. 
St.  Eep.  121;  30  Pac.  556. 

Docketing  judgments.  See  note  87  Am.  St. 
Rep.  665. 

Index  of  judgment  as  part  of  record.  See  note- 
14   L.  R.  A.  393. 

CODE  COMMISSIONERS'  NOTE.  The  docliet 
is  constructive  notice  of  the  lien  to  strangers  to- 
the  judgment.  Page  v.  Rogers,  31  Cal.  293;. 
Hastings  v.  Cunningham,  39  Cal.  140. 


words  "shall  be"  instead  of  "is,"  before  "open,'*' 
and  (2)  the  words  "and  it  shall  be  the  duty  of 
the  clerli  to"  instead  of  "The  clerk  must." 


Judgment. 

1.  May    be    recorded    •without    acknowledg- 
ment.   Civ.  Code,   §  1159. 

2.  RecordlKg.  in  county  where  land  situated. 
Ante,  §  400;  but  see  §  78. 

3.  Cf  justice's  court.    Abstract  creates  lien. 
Post,  §  900. 

Eecording,  generally.  Civ.  Code,  §§1158  et 
eeq. 

Legislation  §  674.  1.  Enacted  March  11,  1872; 
based  on  I'r:ictice  Act.  §  207  fNew  York  Code, 
§  232),  which  had  (1)  the  words  "shall  become" 
instead  of   "becomes,"   before   "a  lien  upon,"    (2) 


the  words  "acquire,  until  the  said  lien  expires" 
instead  of  "and  before  the  lien  e.xp.res,  acquire," 
and  (3)  the  words  "shall  continue"  instead  of 
"continues."  When  enacted  in  1872,  §  674  read' 
the  same  as  now  except  for  the  amendments  of 
1907. 

2.  Amendment  by  Stats.  1901,  p.  151;  un- 
constitutional.    See   note   ante.  S  5. 

3.  Amended  by  Stats.  1907.  p.  720,  (1) 
changing,  in  first  line,  "A"  to  "The,"  (2)  add- 
ing, after  "original  docket,"  the  words  "of  any 
judgment,  the  enforcement  of  which  has  not  been 
stayed  on  appeal,"  (3)  changing  "the  time  of 
the"  to  "such,"  before  "filing  the  judgment,"   and) 


789 


JUDGMENT — ENTRY    OR    ACKNOWLEDGMENT    OF    SATISFACTION. 


?  675 


<4)  in  last  sentence,  (a)  changing  "be"  to  "is," 
and  (b)  adding  the  words  "or  the  lien  otherwise 
■discharged." 

Duration  of  lien.  Where  there  is  a  judg:- 
nieiit  iu  persoiKiiii,  in  addition  to  a  decrefe 
of  foreclosure  and  order  of  sale,  the  lien  of 
the  i)ersonal  judgment  on  the  property  of 
the  judgment  debtor,  in  the  county  where 
the  judgment  is  ilocketed,  attaches  at  the 
time  such  judgment  is  docketed,  and  ex- 
pires at  the  end  of  two  years  from  the 
<late  of  such  docketing.  Englund  v.  Lewis, 
25  Cal.  337.  The  levying  of  an  execution 
is  not  essential  to  the  existence  or  con- 
tinuance of  a  judgment  lien,  under  this 
section,  which  continues  for  two  years, 
whether  or  not  the  execution  has  been 
taken  out;  and  no  execution  can  issue 
after  the  death  of  the  judgment  debtor. 
Estate  of  Wiley,  13S  Tal.  301;  71  Pac.  441. 

What  property  affected  by  filing  tran- 
script.    This  section  and  §  671,  ante,  make 


the  judgment  a  lien  only  on  real  property 
not  exempt  from  execution:  homestead 
property  is  not  subject  to  a  judgment  lien. 
Boggs  V.  Dunn,  lUO'Cal.  283;  IKi  Pac.  743. 

CODE  COMMISSIONERS'  NOTE.      Upon  filing 
tlio   transcript  with   a  ('dunty  recorder  of  another 

c-niinly,     the     jlidu'iii'iit      I nifi.'S     ii     lii'ii     ulniTi     ihw 

debtor's  real  property  in  that  county  for  two 
yiars  from  the  date  of  the  filing,  notwithstand- 
ing a  lien  by  virtue  of  the  same  ju<lKment  has 
previously  existed,  and  expired  by  lapse  of  time, 
in  another  county.  Donner  v.  Palmer,  23  Cal. 
40.  Filing  the  transcript  with  the  recorder  of 
any  other  county  makes  it  a  lien  upon  the  real 
estate  in  that  county,  but  it  does  not  make  it 
a  judgment  of  the  district  court  for  tliat  county. 
People  V.  Doe,  .31  Cal.  220.  But  the  mere  con- 
tingent provision  in  a  decree  of  foreclosure,  for 
execution  in  case  of  deficiency,  etc.,  does  not 
amount  to  a  personal  judgment,  and  to  such  pro- 
vision no  effect  can  be  given  as  a  lien  until  the 
amount  of  the  deficiency  has  been  ascertained 
and  fixed.  The  lien  does  not  commence  to  run 
until  the  deficiency  is  ascertained,  and  an  execu- 
tion be  issued  therefor.  Chapin  v.  Broder,  16 
Cal.  420;  see  also  notes  to  §  §  670,  671,  ante. 


§  675.  Satisfaction  of  a  judgment,  how  made.  Satisfaction  of  a  .iudg- 
ment  may  be  entered  in  the  clerk's  docket  upon  an  execution  returned 
satisfied,  or  upon  an  acknowledgment  of  satisfaction  filed  with  the  clerk, 
made  in  the  manner  of  an  acknowledgment  of  a  conveyance  of  real  prop- 
erty, by  the  judgment  creditor,  or  by  his  indorsement  on  the  face,  or  on 
the  margin  of  the  record  of  the  judgment,  or  by  the  attorney,  unless  a 
revocation  of  his  authority  is  filed.  Whenever  a  judgment  is  satisfied  in 
fact,  otherwise  than  upon  an  execution,  the  party  or  attorney  must  give 
such  acknowledgment,  or  make  such  indorsement,  and,  upon  motion,  the 
court  may  compel  it,  or  may  order  the  entry  of  satisfaction  to  be  made 
"without  it. 

ment  of  a  judgment  to  an  attorney,  with 
defeasance  by  him  that  he  held  half 
thereof  in  trust  for  his  grantor,  does  not 
confer  upon  him  authority  to  satisfy  the 
judgment  for  less  than  the  full  amount. 
Cobb  V.  Doggett,  142  Cal.  142;  7.5  Pac.  7S.5. 
Effect  of  payment  of  judgment.  The 
payment  of  a  judgment  does  not  always 
amount  to  a  satisfaction:  the  rule  is,  that 
the  mere  payment  of  a  judgment  by  one 
joint  debtor  does  not  operate  as  an  accord 
and  satisfaction  of  the  judgment  as  to 
other  joint  judgment  debtors,  unless  it 
plainly  appears  that  the  payment  was  in- 
tended to  have  such  effect.  Williams  v. 
Riehl,  127  Cal.  3C.5;  78  Am.  St.  Rep.  GO; 
59  Pac.  762.  Where  one  of  two  defend- 
ants pays  a  joint  judgment,  but  not  with 
the  intention  of  discharging  it,  he  is  en- 
titled to  use  the  judgment  for  his  protec- 
tion and  indemnity,  and  may  enforce  it 
against  his  co-defendant  for  his  legal  pro- 
portion of  the  debt.  Coffee  v.  Tevis.  17 
Cal.  239;  Williams  v.  Riehl,  127  Cal.  3Go; 
78  Am.  K^t.  Rep.  GO;  59  Pac.  762.  A  judg- 
ment debtor,  pending  an  appeal  by  him 
from  the  judgment,  may  waive  his  right 
to  prosecute  the  appeal,  and  ma}'  satisfy 
the  judgment  by  paying  the  amount  thereof 
on    an    execution    levied    thereon    against 


Acknowledgments,  powers  of  judicial  officers 
to  take.    Ante,  §  179. 

Attorney,  power  of,  to  bind  client.  Ante, 
§§  283-28.5. 

Legislatiri  §  675.  1.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §  208),  (1)  changing,  at 
end  of  first  sentence,  the  words  "be  previously" 
to  "is,"  before  "filed."  (2)  in  second  sentence, 
(a)  changing  the  words  "shall  be"  to  "is,"  be- 
fore "satisfied,"  (b)  omitting  the  words  "it  shall 
be  the  duty  of,"  after  "execution,"  and  (c) 
•changing  the  word  "to"  to  "must,"  after  "attor- 
ney." 

2.  Amended  by  Code  Amdts.  1873-74, 
-p.  320,  (1)  in  first  sentence,  adding  the  words 
"or  by  his  indorsement  on  the  face,  or  on  the 
margin  of  the  record  of  the  judgment,"  and  (2) 
in  second  sentence,  adding  the  words  "or  make 
such  indorsement." 

Who  may  enter  or  acknowledge  satisfac- 
tion. Only  on  payment  of  the  whole 
amount  due  is  one  co-judgment  creditor 
authorized  to  enter  satisfaction  without 
the  consent  of  the  other,  riaggin  v.  Clark, 
61  Cal.  1.  The  use  of  the  name  of  a  nomi- 
nal plaintiff,  by  his  assignee,  or  the  agent 
of  his  assignee,  in  satisfying  the  judgment, 
is  not  improper.  Cobb  v.  Doggett,  142  Cal. 
142;  75  Pac.  785.  The  beneficial  owners 
of  a  judgment  on  claims  assigned  for  col- 
lection may  enter  satisfaction;  and  enforce- 
ment of  the  judgment  by  their  assignee, 
.after  such  satisfaction,  will  be  enjoined. 
JMeyer   v.   Tully,   46   Cal.   70.     The   assign- 


§  675 


MANNER  OF  GIVING  AND   ENTERING   JUDGMENT. 


790 


the  judgment  creditor;  such  •  a  payment 
operates  as  a  satisfaction  of  the  judgment, 
as  against  a  prior  assignee  of  a  part  in- 
terest therein,  if  the  judgment  debtor,  at 
the  time  of  the  payment,  had  no  notice  of 
the  assignment,  and  the  filing  of  the  as- 
signment is  not  constructive  notice  thereof. 
Buckeve  Kefining  Co.  v.  Kelly,  163  Cal.  S; 
Ann.  Cas.  1913E,  840;  124  Pac.  536.  The 
payment  of  a  judgment,  unless  by  way  of 
compromise,  or  with  an  agreement  not  to 
take  or  pursue  an  appeal,  cannot  prevent 
a  party  against  whom  a  judgment  was 
rendered  from  seeldng  a  reversal  on  ap- 
peal. Warner  v.  Freud,  131  Cal.  639;  82 
Am.  St.  Eep.  400;  63  Pac.  1017.  A  forced 
payment  by  execution  sale,  against  a  non- 
consenting  judgment  debtor,  cannot  be  held 
to  abridge  any  of  his  rights  upon  or  under 
appeal.  Vermont  Marble  Co.  v.  Black,  123 
Cal.  21;  55  Pac.  599;  Kenney  v.  Parks, 
120  Cal.  22;  52  Pac.  40.  The  payment  of 
a  judgment  by  an  administratrix,  for  the 
purpose  of  protecting  the  rights  of  the 
estate  in  real  property,  which  would  other- 
wise be  forfeited,  should  be  deemed  a  com- 
pulsory payment:  it  does  not  affect  the 
right  of  appeal.  Warner  v.  Freud.  131  Cal. 
639;  82  Am.  St.  Eep.  400;  63  Pac.  1017. 

When  court  will  compel  entry  of  satis- 
faction. Where  a  judgment  has  been 
pai'l,  but  not  satisfied  of  record,  a  rem- 
edy is  provided  b}^  this  section  for  entry 
of  satisfaction,  and,  for  that  purpose, 
for  the  recall  of  any  execution  issued 
upon  such  judgment.  Meredith  v.  Santa 
Clara  Mining  Ass'n,  60  Cal.  617;  Mowry 
V.  Heney,  3  Cal.  Unrep.  277;  24  Pac.  301. 
Where,  exclusive  of  keeper's  fees  under  a 
writ  of  attachment  forming  no  part  of  the 
judgment,  the  amount  realized  from  the 
sale  of  the  property  under  execution  is 
sulficient  to  satisfy  the  judgment,  includ- 
ing the  amount  of  costs  claimed  in  the 
cost-bill  and  accruing  costs,  the  defendant 
is  entitled  to  have  the  judgment  satisfied. 
Hotchkiss  V.  Smith,  108  Cal.  285;  41  Pac. 
304.  The  sureties  on  an  appeal  bond  are 
not  entitled  to  notice  before  the  entry  of 
judgment  against  them;  but  if  the  judg- 
ment is  in  fact  satisfied,  they  may  apply, 
under  the  provisions  of  this  section,  to 
have  it  satisfied  of  record.  Meredith  v. 
Santa  Clara  Mining  Ass'n,  60  Cal.  617. 
Where  the  judgment  determines  the  rights 
of  the  parties  plaintiff  as  between  them- 
selves, the  defendant,  who  has  acquired 
the  right  of  one  plaintiff,  may,  upon  tender 
of  the  amount  due  the  other  plaintiff,  and 
the  refusal  thereof,  compel  the  entry  of 
satisfaction  by  proceeding  under  this  sec- 
tion. Haggin  v.  Clark,  71  Cal.  444;  9  Pac. 
736;  12  Pac.  478. 

Use  of  motion  to  have  judgment  satis- 
fied. A  motion  to  have  a  judgment  satis- 
fied cannot  be  used  as  a  means  to  reopen 
the  case;  that  is,  where  the  judgment  has 
determined    the    respective    rights    of    the 


parties  plaintiff  as  between  themselves,  it 
cannot  be  shown  by  affidavits,  on  such 
motion,  that  their  rights  are  in  fact  dif- 
.ferent.  Haggin  v.  Clark,  71  Cal.  444;  9- 
Pac.  736. 

Satisfaction  of  record,  but  not  in  fact. 
Where  the  judgment  has  been  satisfied  of 
record,  but  not  in  fact,  it  is  the  proper 
and  regular  practice  to  order  the  defendant 
to  show  cause  why  execution  should  not 
issue  upon  the  judgment,  thus  giving  him. 
an  opportunitv  to  be  heard  upon  the  mat- 
ter. McAuliffe  V.  Coughlin,  105  Cal.  268^ 
3S  Pac.  730. 

Satisfaction  as  to  one  defendant,  effect 
of,  as  to  others.  The  conditional  release  of 
one  of  two  joint  judgment  debtors,  "so  far 
as  the  same  can  be  done  without  releasing 
or  discharging"  the  other  from  the  pay- 
ment of  the  balance,  does  not  release  or- 
discharge  the  other.  Barnum  v.  Cochrane, 
139  Cal.  494;  73  Pac.  242.  The  satisfac- 
tion and  release  of  judgment  as  to  one  of 
several  joint  tort-feasors,  where  the  judg- 
ment was  for  joint  damages,  operates  in 
law  as  a  satisfaction  and  release  of  all. 
Chetwood  v.  California  Nat.  Bank,  113  Cal. 
414;  45  Pac.  704.  There  can  be  but  one 
satisfaction  accorded  for  the  same  wrong;, 
and  while  the  plaintiff  may  sue  individu- 
ally or  together  persons  guilty  in  common 
of  a  tort,  yet  he  cannot,  by  suing  each 
wrong-doer  alone,  secure  more  than  one 
compensation  for  the  same  injury.  Butler 
V.  Ashworth,  110  Cal.  614;  43  Pac.  386. 

Offset  of  judgment  as  satisfaction.  Sat- 
isfaction may  be  made  by  the  set-off  of 
another  judgment;  and  the  court  may  de- 
cree this  by  virtue  of  its  general  juris- 
diction over  its  judgments  and  suitors. 
Coonan  v.  Loewenthal,  147  Cal.  218;  109 
Am.  St.  Eep.  128;  81  Pac.  527.  A  person 
may  receive  money  due  on  a  judgment 
rendered  in  favor  of  himself  and  several 
others,  co-plaintiffs;  but  he  cannot,  with- 
out authority  from  his  co-plaintiffs,  set  off' 
a  judgment  due  to  him  and  then  jointly 
against  another  judgment,  held  by  the  de- 
fendant in  such  joint  judgment,  against 
himself  alone.  Corwin  v.  Ward,  35  Cal.. 
195;  95  Am.  Dee.  93. 

Equitable  relief.  The  equitable  remedy 
of  enjoining  the  execution  of  a  judgment 
is  not  barred  by  this  section,  and  especially 
not  where  the  party  seeking  the  relief  has; 
applied  to  the  court  rendering  the  judg- 
ment to  declare  satisfaction  and  recall  the- 
execution,  but  has  been  denied  such  relief. 
Eppinger  v.  Scott,  130  Cal.  275;  62  Pac. 
460. 

Appeal.  The  voluntary  satisfaction  of 
the  judgment  renders  the  question  on  ap- 
peal a  moot  question,  and  therefore  the- 
appeal  will  be  dismissed.  Moore  v.  Morri- 
son, 130  Cal.  80;  62  Pac.  268.  Where  the- 
attorney  for  a  party  enters  satisfaction  of 
a  judgment  for  less  than  the  amount 
thereof,   and   the   testimony   is   conflicting. 


791 


MORTGAGE— SATISFACTION — SETTING    ASIDE    TRANSFER.       §§  675a,  676 


as  to  whether  such  attorney  had  authority 
from  his  client  to  enter  such  satisfaction, 
and  the  motion  of  the  client  to  have  the 
satisfac'tion  vac^atctl  is  denied,  the  decision 
will  not  be  set  aside  on  aiqieal.  Fuller  v. 
Baker,  48  Cal.  632.  Enforced  satisfaction 
by  execution  cannot  deprive  the  judgment 
debtor  of  his  right  to  appeal,  and  he  may 
require  restitution  in  case  of  reversal. 
Kenney  v.  Parks.  120  Cal.  22;  52  Pac.  40. 
A  judgment  against  a  deceased  person  is 
not  satisfied,  so  as  to  prevent  or  cause  a 
dismissal  of  the  ajijieal,  by  a  sale  of  tho 
l)ropcrty  of  the  estate  under  execution,  and 
the  payment  of  the  proceeds  into  court  to 
await  the  result  of  the  appeal.  Vermont 
Marble  Co.  v.  Black,  123  Cal.  21;  55  Pac. 
599.  The  affirmance  of  the  judgment  will 
not  affect  the  fact  that  the  judgment  has 
been  in  part  satisfied.  Kyland  v.  Heney, 
130  Cal.  426;  62  Pac.  616. 

Review.  When  a  judgment  is  satisfied, 
it  is  beyond  review:  the  satisfaction 
thereof  is  the  last  act  and  end  of  the  pro- 
ceeding; the  payment  produces  a  perma- 
nent and  irrevocable  discharge,  after 
which  the  judgment  cannot  be  restored 
by  any  subsequent  agreement,  nor  kept 
on  foot  to  cover  new  and  distinct  engage- 
ments. Estate  of  Babv,  87  Cal.  200;  22 
Am.  St.  Rep.  239;  25  JPac.  405.  A  party 
cannot  accept  the  benefit  or  advantage 
given  him  by  a  judgment  or  order,  and 
then  seek  to  have  it  reviewed;  but  there 
is  a  limitation  of  this  rule,  where  a  reversal 
could    not    affect    the    right    of    the    party 


to  the  benefit  he  has  secured,  as  where 
the  only  controversy  relates  to  his  right  to 
a  greater  amount.  San  Bernardino  County 
V.  Riverside  County,  135  ("al.  618;  67  I'ac. 
1047.  A  judgment,  fully  paid  and  satis- 
fied, will  not  be  reviewed  uj)on  certiorari; 
and  a  judgment  of  coiitempt  for  violation 
of  an  injunction  will  not  be  reviewed, 
where  the  injunction  has  been  obeyed  and 
the  fine  imjiosed  voluntarily  paid  by  the 
defendant.  Morton  v.  Superior  Court,  65 
Cal.  496;  4  Pac.  489;  and  see  Kennev  v. 
Parks,  120  Cal.  22;  52  Pac.  40. 

CODE  COMMISSIONERS'  NOTE.  If  the  exe- 
cution is  Icvii'd  (ju  sullicicnt  proinTty  to  satisfy 
it,  the  levy  is  a  satisfaction  of  the  judgnn-nt. 
People  V.  (.'hisholm,  8  Cal.  30;  Mulfoni  v.  Es- 
tudillo,  23  Cal.  94.  Tender,  or  offer  to  perform, 
does  not  satisfy  judgment.  Redington  v.  Chase, 
34  Cal.  666.  In  Deland  v.  Hiett,  27  Cal.  611, 
87  .-Vm.  Dec.  102,  it  was  held  that  payment  of 
part  of  a  money  judgment,  under  an  agreement 
that  it  should  operate  as  satisfaction  in  lull,  will 
not  discharge  the  judgment;  but  the  rule  of  this 
case  was  changed  bv  legislative  action.  See  Stats. 
1867-68,  p.  31.  See  also  Civ.  Code,  §  1524. 
Before  action  commenced,  plaintiffs  agreed  with 
their  attorneys,  that  if  the  latter  brought  the 
action  and  recovered  they  should  have  one  third 
of  the  judgment  and  co.sts  as  compensation. 
After  judgment,  and  e.xecution  issued,  the  plain- 
tiffs compromised  with  the  defendant  for  less 
than  the  amount  of  the  judgment,  and  entered 
satisfaction  upon  the  record.  It  was  held,  that 
the  attorneys  liad  no  lien  on  the  judgment,  and 
could  not  disturb  the  satisfaction  entered  bv  tlie 
plaintiffs.  Mansfield  v.  Borland,  2  Cal.  .507.  '  The 
plaintiff  in  an  execution  may  accept  of  promis- 
sory notes  by  a  special  agreement,  as  an  absolute 
payment  of  the  judgment,  but  the  agreement  must 
be  proved  by  testimony  other  than  the  sheriff's 
return.  Mitchell  v.  Hockett,  25  Cal.  538,  542; 
85  Am.  Dec.  151. 


§  675a.  Satisfaction  of  mortgage  recorded.  Form  of  satisfaction. 
Whenever  a  mortgage  on  real  property  is  foreclosed  in  this  state  and  the 
property  covered  by  such  mortgage  is  sold  under  and  pursuant  to  the 
decree  of  foreclosure  entered  in  the  action  in  which  such  foreclosure  is  had, 
it  shall  be  the  duty  of  the  sheriff,  or  commissioner  making  the  sale,  as  the 
case  may  be.  within  five  days  after  the  purchaser  at  the  sale  becomes  en- 
titled to  a  deed  from  such  sheriff,  or  commissioner  thereunder,  to  enter 
upon  the  margin  of  the  county  records  where  such  mortgage  is  recorded, 
if  the  same  be  recorded,  a  satisfaction  of  the  same. 

Such  satisfaction  shall  be  substantially  in  the  following  form: 
Full  satisfaction  and  discharge  of  the  within  mortgage   by  foreclosure 
is  hereby  entered  this  day  of  .  19 — .     Decree  of  foreclosure  en- 
tered the day  of ,  19 — .  in  cause  No. ,  entitled, vs.  . 

Sale  under  such  decree  had  the day  of .  19 — . 


Sheriff   (commissioner) 


Added    by     Stats.     1905, 


Legislation  §  675a. 
p.  243. 

§  676.  Undertaking  in  actions  to  set  aside  transfer  of  property.  Where 
an  action  is  commenced  to  set  aside  a  transfer  or  conveyance  of  property 
on  the  grounds  that  such  transfer  or  conveyance  was  made  to  hinder,  delay 
or  defraud  a  creditor  or  creditors,  the  transferee  or  grantee  to  whom  it 
is  alleged  the  property  was  transferred  or  conveyed  to  hinder,  delay  or 
defraud  creditors  or  the  successors  or  assigns  of  such  transferee  or  grantee, 


§§  677-678  MANNER  OF    GIVING   AND  ENTERING  JUDGMENT.  792 

may  give  an  undertaking  as  herein  provided,  and  when  such  undertaking 
is  given  as  herein  provided,  the  transferee  or  grantee  to  Avhom  it  is  alleged 
the  property  was  transferred  or  conveyed  to  hinder,  delay  or  defraud 
creditors,  or  the  successors  and  assigns  of  such  transferee  or  grantee,  may 
sell,  encumber,  transfer,  convey,  mortgage,  pledge  or  otherwise  dispose  of 
the  property,  or  any  part  thereof,  which  is  alleged  to  have  been  transferred 
or  conveyed  to  hinder,  delay  or  defraud  creditors,  so  that  the  purchaser, 
encumbrancer,  transferee,  mortgagee,  grantee  or  pledgee  of  such  prop- 
erty, will  take,  own,  hold  and  possess  such  property  unaffected  by  such 
action  and  suit,  or  the  judgment  which  may  be  rendered  therein. 

Legislation  §  676.    Added  by  Stats.  1903,  p.  98.        fraudulent  transfer.    See  note  75  Am.  Dec.  359. 
Form     of    judgment    granting     relief     against 

§  677.  Conditions  of  undertaking.  Such  undertaking  with  two  sureties 
shall  be  executed  by  the  transferee  or  grantee  to  whom  it  is  alleged  the 
property  was  transferred  or  conveyed  to  hinder,  delay  or  defraud  creditors, 
or  the  successor  or  assign  of  such  transferee  or  grantee,  in  double  the 
estimated  value  of  the  property  so  alleged  to  have  been  transferred  or 
conveyed;  provided,  in  no  case  need  such  undertaking  be  for  a  greater 
sum  than  double  the  amount  of  the  debt  or  liability  alleged  to  be  due  and 
owing  to  the  plaintiff  in  such  action,  commenced  to  set  aside  said  transfer 
and  conveyance;  and  where  such  estimated  value  of  the  property  alleged 
so  to  have  been  conveyed  is  less  than  the  sum  alleged  to  be  due  and  owing 
to  the  plaintiff  in  the  action,  such  estimated  value  shall  be  stated  in  the 
undertaking,  and  said  undertaking  shall  be  conditioned  that,  if  it  be  ad- 
judged in  said  action  that  the  transfer  or  conveyance  was  made  to  hinder, 
delay  or  defraud  a  creditor  or  creditors,  then  that  the  transferee  or  grantee 
or  the  said  successor  or  assigns  of  such  transferee  or  grantee  giving  such 
undertaking,  will  pay  to  the  plaintiff  in  said  action  a  sum  equal  to  the 
value,  as  the  same  is  estimated  in  said  undertaking,  of  said  property  al- 
leged to  have  been  transferred  or  conveyed  to  hinder,  delay  or  defraud 
creditors,  not  exceeding  the  sum  alleged  to  be  due  and  owing  to  the  plain- 
tiff in  the  action. 

Legislation  g  677.    Added  by  Stats.  1903,  p.  99. 

§  677^.  Filing  and  serving  undertaking.  Said  undertaking  shall  be 
filed  in  the  action  in  which  said  execution  issued  and  a  copy  thereof  served 
upon  the  plaintiff  or  his  attorney  in  said  action. 

Legislation  §  6771/2.      Added   by    Stats.    1903, 
p.  99. 

§  678.  Objections  to  sureties.  Within  ten  days  after  service  of  the 
copy  of  undertaking  tlie  plaintiff  may  object  to  such*  undertaking  on  the 
ground  of  inability  of  the  sureties,  or  either  of  them,  to  pay  the  sum  for 
which  they  become  bound  in  said  undertaking,  and  upon  the  ground  that 
the  estimated  value  of  the  property  therein  is  less  than  the  market  value 
of  such  property.  Such  objection  to  the  undertaking  shall  be  made  in 
writing,  specifying  the  ground  or  grounds  of  objection,  and  if  the  objection 
is  made  to  the  undertaking  that  the  estimated  value  therein  is  less  than 
the  market  value  of  the  property,  such  objection  shall  specify  the  plain- 
tiff's estimate  of  the  market  value  of  the  property.     Such  written  objection 


793  SURETIES — JUSTIFICATION — APPROVAL — OBJECTION.       §§  678y2-680 

shall  be  served  upon  the  said  trauslerct.'  or  {^rantL-c,   or  the   successor  or 
assigns  of  such  transferee  or  grantee  giving  such  undertaking. 

Legislation  S  678.    Added  by  Stats.  1903,  p.  99. 

§  678 1 .  Justification  of  sureties.  Approval  and  disapproval  of  under- 
taking. When  the  sureties  or  either  of  them,  are  objected  to,  the  surety 
or  sureties  so  objected  to  shall  justify  before  the  court  in  which  the  action 
is  commenced,  upon  ten  days'  notice  of  the  time  when  they  will  so  justify 
being  given  to  the  plaintiff,  or  plaintiff's  attorney.  Upon  the  hearing  and 
examination  into  the  sufficiency  of  a  surety,  witness  may  be  required  to 
attend  and  evidence  may  be  procured  and  introduced  in  the  same  manner 
as  in  trial  of  civil  cases.  Upon  such  hearing  and  examination  the  court 
shall  make  its  order,  in  writing,  approving  or  disapproving  the  sufficiency 
of  the  sureties  or  surety  on  such  undertaking.  In  case  the  court  disap- 
proves of  the  surety  or  sureties  on  any  undertaking,  a  new  undertaking 
may  be  filed  and  served,  and  to  any  undertaking  given  under  the  provis- 
ions of  this  act  the  same  objection  to  the  sureties  may  be  made  and  the 
same  proceedings  had  as  in  case  of  the  first  undertaking  filed  and  served. 

Legislation  §  6781/2.     Added    by    Stats.    1903, 
p.  99. 

§  679.  Objection  because  estimated  value  in  undertaking  less  than 
market  value.  New  undertaking.  When  objection  is  made  to  the  under- 
taking upon  the  ground  that  the  estimated  value  of  the  property,  as  stated 
in  the  undertaking,  is  less  than  the  market  value  of  the  property,  the  trans- 
feree or  grantee,  or  the  successor  or  assigns  of  such  transferee  or  grantee 
giving  the  undertaking  may  accept  the  estimated  value  stated  by  the  plain- 
tiff in  said  objection,  and  a  new  undertaking  may  at  once  be  filed,  with 
the  plaintiff's  estimate  stated  therein  as  the  estimated  value,  and  no  ob- 
jection shall  thereafter  be  made  upon  that  ground;  if  the  plaintiff's  esti- 
mate of  the  market  value  is  not  accepted,  the  transferee  or  grantee,  or  the 
successor  or  assigns  of  the  grantee  or  transferee  giving  such  undertaking, 
upon  ten  days'  notice  to  the  plaintiff,  shall  move  the  court  in  which  the 
action  is  pending  to  estimate  the  market  value  of  the  property,  and  upon 
the  hearing  of  such  motion,  witnesses  may  be  reciuired  to  attend  and  tes- 
tify, and  evidence  may  be  produced  in  the  same  manner  as  in  the  trial  of 
civil  actions.  Upon  the  hearing  of  the  motion  the  court  shall  estimate  the 
market  value  of  the  property,  and  if  the  estimated  value  of  the  property 
as  made  by  the  court  exceeds  the  estimated  value  as  stated  in  the  under- 
taking, a  new  undertaking  shall  be  filed  and  served  with  the  market  value 
determined  by  the  stated  value  therein  as  the  estimated  value  of  the  prop- 
erty. 

Legislation    S    679.      Added    bv    Stats.    1903„ 
p.  100. 

§  679^.  Justification  of  sureties.  The  sureties  shall  justify  upon  the 
undertaking  as  reciuired  by  section  one  thousand  and  fifty-seven  of  the 
Code  of  Civil  Procedure. 

Legislation  8  679V2.     Added    bv    Stats.    1903, 
p.  100. 

§  680.  When  undertaking  becomes  effective.  The  undertaking  shall  be- 
come effective  for  the  purpose  stated  in  section  one   [section  six  hundred 


§  680y2  MANNER   OF    GIVING   AND   ENTERING   JUDGMENT.  794 

and  seventy-six]  of  this  act,  ten  days  after  service  of  copy  thereof  on  the 
plaintiff,  unless  objection  to  such  undertaking  is  made  as  in  this  act 
provided,  and  in  case  objection  is  so  made  to  the  undertaking  filed  and 
served,  the  same  shall  become  effective  for  such  purpose  vs^hen  an  order  is 
made  by  such  court  approving  the  sureties,  when  the  surety  or  sureties  are 
objected  to,  or  affirming  the  estimate  of  the  value  of  property  when  objec- 
tion is  made  thereto,  or  in  case  any  objection  to  the  undertaking  is  sus- 
tained by  the  court  when  a  new  undertaking  is  filed  and  served  as  required 
by  this  act,  to  which  no  objection  is  made,  or  if  made  is  not  sustained  by 
the  court. 

Legislation  §  680.      Added     by     Stats.     1903, 

p.  100. 

§  680|.  Judgment  against  sureties.  If  judgment  be  rendered  in  said 
action  that  the  alleged  transfer  or  conveyance  was  made  to  hinder,  delay 
or  defraud  creditors,  then  judgment  shall  be  rendered  in  such  action  with- 
out further  proceeding  in  favor  of  plaintiff  and  against  the  principal  and 
sureties  on  said  undertaking  for  the  sum  for  which  said  undertaking  was 
executed  according  to  the  conditions  thereof. 

Legislation  §6801/2.     Added   by    Stats.    1903,  Effect    of   judgment    against   principal    as    evl- 

p   1^01.  dence  against  surety.    See  note  83  Am.  Dec.  380. 


.795 


EXECUTION  MAY  ISSUE  WHEN. 


§681 


TITLE  IX. 
EXECUTION  OF  JUDGMENT  IN  CIVIL  ACTIONS. 


Chapter   I.     Execution.      §§  681-713i'o. 

II.     Proceedings   yupplemcntal   to   Executiou. 


714-721. 


CHAPTER  I. 

EXECUTION. 


"5  fiSl.     Within  what  timfi  exocution  may  issue. 

§  681a.  Stay  of  execution. 

I  682.  Who  may  issue  the  execution,  its  form,  to 
whom  directed,  and  what  it  shall  re- 
quire. 

§683.     When  made  returnable. 

§  684.  Money  judgments  and  others,  how  en- 
forced. 

§  685.     Execution  after  five  years. 

-S  686.  When  execution  may  issue  against  the 
property  of  a  party  after  his  death. 

§  687.     Execution,  how  and  to  whom  issued. 

i  688.  What  liable  to  be  seized  on  execution. 
Property  not  affected  until  levy  made. 

§  689.  When  property  claimed  by  third  party. 
Indemnity. 

§  690.     What  exempt  from  execution. 

§  091.     Writ,  how  executed. 

§  692.     Notice  of  sale  under  execution,  how  given. 

§  693.  Selling  without  notice,  what  penalty  at- 
tached. 
■j  694.  Sales,  how  conducted.  Neither  the  officer 
conducting  it  nor  his  deputy  to  be  a 
purchaser.  Real  and  personal  prop- 
erty, how  sold.  Judgment  debtor,  if 
present,  may  direct  order  of  sale,  and 
the  officer  shall  follow  his  direction.s 

'5  695.  If  purchaser  refuses  to  pay  purchase- 
money,   what  proceedings. 

§  696.  Officer  may  refuse  such  purchaser's  sub- 
sequent bid. 

§  697.  These  two  sections  not  to  make  officer 
liable  beyond  a  certain  amount. 

S  698.  Personal  property  not  capable  of  manual 
delivery,  how  delivered  to  purchaser. 

§  699.  Personal  property  not  capable  of  manual 
delivery,  how   sold  and  delivered. 

§  700.     Sale    of    real    property.      What    purchaser 

is  substituted  to  and  acquires. 
■§  700a.  When    sales    are    absolute.      What    certifi- 
cate must  show. 


§  701. 
§  702. 
§  703. 
§  704. 
§  705. 
§  706. 


§  707. 
§  708. 


§  709. 
§  710. 
§  710. 
§  710J 
§  711. 
§  711i 
§  712. 
§  712J 
§  713. 
§  713i 


Real  property  so  gold,  by  whom  it  may 
be  redeemed. 

When  it  may  be  redeemed,  and  redemp- 
tion-money. 

When  judgment  debtor  or  another  re- 
demptioner   may  redeem. 

In  cases  of  redemption,  to  whom  the  pay- 
ments are  to  be  made. 

What  a  redemptioner  must  do  in  order  to 
redeem. 

Until  the  expiration  of  redemption-time, 
court  may  restrain  waste  on  the  prop- 
erty.     What  considered  waste. 

Rents  and  profits. 

If  purchaser  of  real  property  be  evicted 
for  irregularities  in  sale,  what  he  may 
recover,  'and  from  whom.  When  judg- 
ment to  be  revived.  Petition  for  the 
purpose,  how  and  by  whom  made. 

Party  who  pays  more  than  his  share  may 
compel  contribution. 

Collection  of  moneys  due  from  judgment 
debtor.      Procedure. 

Claimant  of  property  may  give  undertak- 
ing and  release  property. 

Claim  of  property.      Undertaking,  amount 


Undertaking,     filing 

Undertaking,    objec- 

Justification.  approval 


and  conditions    of. 

Claim    of    property, 
and   serving. 

Claim    of    property, 
tions  to. 

Claim  of  property, 
and  disapproval. 

Claim     of      property.      Undertaking,     esti- 
mate of  value,  and  new  undertaking. 

Claim   of   property.      Undertaking,    justifi- 
cation of  sureties. 

Claim    of    property.      Undertaking,    when 
becomes   effectual. 


§  681.  Within  what  time  execution  may  issue.  The  party  in  whose 
favor  judgment  is. given  may,  at  any  time  within  five  years  after  the  entry 
thereof,  have  a  writ  of  execution  issued  for  its  enforcement.  If,  after  the 
-entry  of  the  judgment,  the  issuing  of  execution  thereon  is  stayed  or  en- 
joined by  any  judgment  or  order  of  court,  or  by  operation  of  law,  the  time 
during  which  it  is  so  stayed  or  enjoined  must  be  excluded  from  the  com- 
putation of  the  five  years  within  which  execution  may  issue. 

Post, 


Time    for    execution,    when    extended 
§  68.^. 

Appeal,  stay  of  execution.    Post,  §§  942-946. 

Where  money  deposited  by  defendant,  judg- 
ment to  be  satisfied  thereon  by  clerk.  Ante, 
§  500, 

Attachment.  If  plaintiff  obtains  Judgment,  how 
■Batisfied.    Ante,  §  r>r>o. 

Executor  or  administrator,  no  execution  upon 
.judgment  against,  when.    Post,  §  l.")04. 

Receiver,  in  proceedings  in  aid  of  execution. 
Ante,  §  564,    subd.    4. 

Death,  no  execution  to  issue  after.  See  post, 
§§   1504,    1505. 

New  execution,  plaintiff  may  take  out,  where 
'defendant  discharged  from  prison.  .See  post, 
i  1152. 

Legislation  9  681.    1.  Enacted  March  11,  1872; 


based  on  Practice  Act.  §  209  (New  York  Code, 
§  283),  which  after  "entry  thereof,"  had,  as  the 
end  of  the  section,  the  words  "issue  a  writ  of 
execution  for  its  enforcement,  as  prescribed  in 
this  chapter."  When  enacted  in  1872.  these 
words  were  changed  to  read  as  at  present,  and 
then   ended    the   section. 

2.  Amendment  by  Stats.  1901,  p.  152;  un- 
constitutional.    See    note   ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  682;  the  code 
commissioner  saying.  "The  amendment  consists 
in  adding  all  after  the  word  'enforcement'  (the 
second  sentence].  The  justice  of  the  amendment 
is  self-evident." 

Scope  of  section.  This  section  applies 
as  well  to  a  decree  enforcing  a  lien  by 
order    of    sale    for    an    amount   due,    as    to 


§681 


EXECUTION. 


795 


personal  judgments  for  the  recovery  of 
monev.  Borland  v.  Hanson,  81  Cal.  202; 
15  Am.  St.  Eep.  44;  22  Pac.  552;  Jacks  v. 
Johnston,  86  Cal.  384;  21  Am.  St.  Eep.  50; 
24  Pac.  1057. 

When  party  may  have  writ  issued.  A 
party  in  whose  favor  judgment  is  entered 
is  entitled  to  execution  immediately:  he 
cannot  be  deprived  of  this  right  nor  de- 
layed in  its  exercise  by  any  act  of  the 
opposite  party.  People  v.  Loucks,  28  Cal. 
6S.  The  right  to  execution  for  monthly 
allowances  for  the  support  of  a  wife  dur- 
ing her  lifetime  does  not  accrue  until  such 
allowances  respectively  fall  due.  Gaston 
V.  Gaston,  114  Cal.  54^2;  55  Am.  St.  Eep. 
86;  46  Pac.  609;  and  see  De  Uprey  v.  De 
Uprey,  23  Cal.  352.  The  rule  that  execu- 
tion cannot  be  issued  in  vacation  has  no 
existence  in  this  state.  Marysville  v. 
Buchanan,  3  Cal.  212;  McMillan  v.  Eich- 
ards,  12  Cal.  467.  The  enforcement  of  a 
judgment  by  execution  does  not  depend 
upon  the  entry  or  the  docketing  of  the 
judgment:  these  are  merely  ministerial 
acts,  the  first  of  which  is  to  put  in  motion 
the  right  of  appeal  from  the  judgment 
itself,  and  to  limit  the  time  within  which 
the  right  may  be  exercised,  or  in  which 
the  judgment  may  be  enforced,  and  the 
other  to  create  a  lien  by  the  judgment 
upon  the  real  property  of  the  debtor.  Los 
Angeles  County  Bank  v.  Eaynor,  61  Cal. 
145.  Execution  may  be  issued  upon  a  judg- 
ment before  the  entry  of  such  judgment  in 
the  judgment-book,  and  the  sale  of  the 
property  under  such  execution  is  effective 
to  pass  title.  Los  Angeles  County  Bank  v. 
Eaynor,  61  Cal.  145;  Janes  v.  Ballard,  107 
Cal.  130;  40  Pac.  108;  Baun  v.  Eoper,  1 
Cal.  App.  435;  82  Pac.  390.  An  execution 
on  a  judgment  in  an  attachment  suit  is 
enforceable  as  soon  as  the  judgment  is 
entered,  unless  an  appeal  is  taken  at  once 
and  a  stay  bond  given.  Bailey  v.  ^tna 
Indemnity  Co.,  5  Cal.  App.  740;  91  Pac. 
416.  This  section  restricts  the  absolute 
right  to  an  execution  to  the  five  years  after 
entry  of  judgment.  Doehla  v.  Phillips,  151 
Cal.  488;  91  Pac.  330.  The  five  years  of 
limitation  within  which  an  execution  for 
an  unsatisfied  balance  on  a  foreclosure  sale 
may  be  taken  out  commences  to  run  from 
the  date  of  the  judgment  of  foreclosure, 
and  not  from  the  date  when  the  balance 
was  docketed.  Bowers  v.  Crary,  30  Cal. 
621.  A  writ  of  execution,  issued  after  the 
lapse  of  five  years  from  the  entry  of  judg- 
ment, is  void,  and  subject  to  be  recalled 
by  any  proper  proceeding  instituted  for 
that  purpose;  and  a  writ  of  injunction 
restraining  the  judgment  creditor  from 
issuing  the  execution  does  not  operate  to 
suspend  the  running  of  the  statute.  Buell 
v.  Buell,  92  Cal.  393;  28  Pac.  443;  and  see 
Solomon  y.  Maguire,  29  Cal.  227;  Borland 
V.  Hanson,  81  Cal.  202;  15  Am.  St.  Eep. 
44;  22  Pac.  552;  Cortez  v.  Superior  Court, 


86  Cal.  274;   21  Am.   St.  Eep.  37;   24  Pae^ 
1011. 

Who  may  have  writ  issued.  A  commis- 
sioner in  partition,  who  is  allowed  a  fee 
for  his  services,  is  a  "party  in  whose  favor 
judgment  is  given,"  within  the  meaning  of 
this  section.  Cortez  v.  Superior  Court,  86 
Cal.  274;  21  Am.  St.  Eep.  37;  24  Pac.  1011; 
Thomas  v.  San  Diego  College  Co.,  Ill  Cal. 
358;  43  Pac.  965. 

How  party  may  compel  issuance  of  writ. 
Where  a  recorder  erroneously  directs  an 
execution,  issued  under  a  valid  judgment, 
to  be  returned  unsatisfied,  and  his  order  is 
complied  with,  he  may  be  compelled  by 
mandamus  to  issue  another  execution :  his 
duty  to  do  so  is  purely  ministerial.  Hay- 
ward  v.  Pimental,  107  Cal.  386;  40  Pac. 
545.  Upon  motion  for  an  order  that  execu- 
tion issue,  it  is  proper  and  regular  practice 
for  the  court,  of  its  own  motion,  to  order 
the  defendant  to  show  cause  why  the  plain- 
tiff's motion  should  not  be  granted,  thus 
giving  the  defendant  an  opportunity  to  be 
heard  in  answer:  the  order  to  show  cause 
is  simph^  a  notice  of  the  motion,  and  a 
citation  of  the  defendant  to  appear  at  a 
stated  time  ami  place  and  show  cause 
why  the  plaintiff's  motion  should  not  be 
granted.  McAuliffe  v.  Coughlin,  105  Cal. 
268;  38  Pac.  730. 

Effect  of  levy.  The  levy  of  an  execu- 
tion on  land,  where  the  judgment  itself 
was  not  a  lien,  creates  a  lien  upon  the  land 
from  the  date  of  the  levy.  Lean  v.  Giveus, 
146  Cal.  739;  106  Am.  St.  Eep.  79;  81 
Pac.  128.  A  garnishment  on  execution  fixes 
the  rights  of  the  judgment  creditor  so  as 
to  make  his  right  to  recover  the  debt  from 
the  garnishee  superior  to  any  claim  or  de- 
mand accruing  subsequently.  Nordstrom  v. 
Corona  City  Water  Co.,  155  Cal.  206;  132 
Am.  St.  Eep.  81;  100  Pac.  242. 

Validity  of  execution.  A  variance  from 
the  judgment,  as  to  the  amount  to  be  col- 
lected under  an  execution,  simply  renders 
the  execution  irregular:  it  does  not  make 
it  void.  Doehla  v.  Phillips,  151  Cal.  488; 
91  Pac.  330. 

Stay  of  execution.  The  court  is  not 
authorized  to  stay  the  execution  of  a  judg- 
ment, where  there  is  any  infirmity  in  the 
judgment  by  reason  of  a  defective  com- 
plaint. Edwards  v.  Hellings,  103  Cal.  204; 
37  Pac.  218. 

Vacating  execution.  Jurisdiction.  An 
order  may  be  properly  made  by  one  de- 
partment of  a  superior  court  vacating  an 
execution  wrongfully  allowed  by  another 
department  of  the  same  court,  after  the 
lapse  of  five  years:  it  is  the  same  court 
acting  in  each  instance.  Dorland  v.  Hanson, 
81  Cal.  202;  15  Am.  St.  Eep.  44;  22  Pac. 
552. 

Action  on  judgment.  An  action  can  be 
maintained  in  this  state  upon  a  domestic 
judgment,  although  the  time  within  which^ 
execution   might  issue  has  expired.    Amea^ 


797 


STAY — WHO    MAY    ISSUE    EXECUTION — FORM,    ETC.         §§  681a,  682 


V,  Hoy,  12  Cal.  11;  Stuart  v.  Lander,  16  not  postpone  the  operation  of  the  statute. 
€al.  372;  7G  Am.  Dee.  538;  Howe  v.  Blake,  Wood  v.  Cunov,  57  Cal.  2()S;  M<-(Jusker  v. 
99   Cal.   167;   37  Am.  St.   Kep.  4.');   33  Pac.       Walker,  77  (•al.'208;  19  I'ac.  382. 

864.     The  provision   of  this  hcction,   limit-  wruon..     i,         .  ,   ^          ..         .,       ^   ».     , 

;«„  +i,«  ;     ,  „     *              f        e       4.1^          r  Whether  lien   of  Judgment   continued   by   levy 

ing  the  issue  of  execution  for  the  enforce-  of  execution,    .s.-u  nut-  lu  Am.  I)<t.  •jot. 

nient  of  judj^ment  to  a  term  of  five  years,  Effect  of  lapse  of  time  on  right  to  issue  ezecu- 

is  but  a  limitation  upon  a  certain  mode  for  "°"-    ''^'■'"  ""'r  ^■'•'  'V"'  ^i'  ^''■''-  J"'   ,       ,  ,   .. 

.,       „    ..                   ,           ',     ,                ,                   ,     ,  Issuance    of   execution   for    part   only   of   judg- 

its   eutorcement,  and   does   not  purport   to  ment  debt,   .s.i-  j.ot.-  lu  Ann.  ra.s.  .jg4 

limit    or   qualify    the    right    to    its   enforce-  Issuance  of  execution  to  enforce  interlocutory 

ment    in    any    other    mode;     therefore    an  °l^^^jj°[^^''^"'^''^  °^  money,    s-e  note  Ann.  c'as. 

action    may    be    maintained    to    enforce    a  "  R"ight  to' issue  execution  after  death  of  Judg- 

judgment    for    the    foreclosure    of    a    mort-  mcut  debtor,    s.i-  imir  Ann.  Cus.  I'jiju,  ini7. 

gage,    declaring    the    indebtedness    therein  CODE  COMMISSIONERS'  NOTE.     Generally, 

ascertained    to    be    a    lien    upon    the    mort-  When  execution   may  issue,    etc.     Effect   of   exe- 

gaged    land    and    directing   a   sale    thereof  cu"on-     Kxocution    must    bo    issued   within    tive 

f         X-    i-     1.1      •     1    1  X     1                 T>                7->i    I  years  from  entry  of  judgment.    White  v.  Clark,  4 

to  satisty  the  indebtedness.      Rowe  v.  Blake,  Cal.    513;    Bowers   v.    Crary,    30    Cal.    621.      This 

99    Cal.    167;    37    Am.    St.    Rep.    4.5;    33    Pae.  applies   to  judgments   in   suits   to   foreclose    mo!t- 

864;     and    see    Ames    v.    Hoy,     12     Cal.     11;  P^es     Stout  v.   Macy    22   Cal.   647.      And  exetu^ 

o,     '     .          T         3         Tf  r^    1     or-o     r-^    .          Tx  '■'"^"    'O""    ^^    UHsatisiied    balance    on    judgment    of 

tetuart  V,  Liander,   lb   Cal.  6lZ;    ib   Am.  Dec.  foredosuro    must    be   taken    out    within    hve    years 

538.  irom    date    of    judgment    of    foreclosure,    and    not 

Action  for  damages.     Levy  under  satis-       ^''°"t  ''"'*'  °f  '^°''^''^''"f.  i^"'="''-'=  ^•™''i"'"'^  ^^ 

£    J    .     ,              .        ,,,,  .  ''         ,.   , ,       ,  after   sale.     Bowers   v.    Crary,    30   Cal.    621.      The 

fied  judgment.       Ihe   procuring   ot    the   levy  time    during   which    e.\.<-ution    was    stayed    by    an 

of    an    execution    issued  upon    a    satisfied  order  of  the  court  is  included  in  the  five  years, 

judgment  is  a  tort,  and  constitutes  a  lia-  ''"^  ^^^  lapse  of  wnich  an  order  of  the  court 

i.,.'?            .     ,.           ,     T  '  .                       ,     .  was  necessary  to  take  out  execution.    Solomon  v. 

blllty    not   founded    upon  an    lustrument    in  Maguire,   29   Cal.  227.      Execution  may  be   issued 

writing,   aud   the   statute  begins   to   run,    in  and  enforced,  whether  the  judgment  roll  has  been 

such    case,   at   the   time   of    the    levy,   and       "'V'^'l  "P   •""   ""f;    ^''."'■P   ''■   L^fn'^^y-    34   Cal. 
,  ',  .  ,  T        *^ !  614.      See,    generally,    Gray    v.    Palmer,    28    Cal. 

subsc(iuentJy  accruing  damages  do  not  con-       417. 

stitute   separate    causes   of   action,  and  do 

§681a.  Stay  of  execution.  The  court  or  the  judge  thereof  shall  not 
have  the  power,  without  the  consent  of  the  adverse  party,  to  stay,  for  a 
longer  period  than  thirty  days,  the  execution  of  any  judgment  or  order 
the  execution  whereof  would  be  stayed  on  appeal  only  by  the  execution  of 
a  stay  bond. 

Legislation  §  681a.     Added    by    Stats.     1911,  Stay  of  execution  otherwise  than  by  statutory 

p.  400.  proceedings.    See  note  127  Am.  St.  Rep.  707. 

Constitutionality  of  stay  laws.    See  note  6  Am. 
Dec.  540. 

§  682,  Who  may  issue  the  execution,  its  form,  to  whom  directed,  and 
what  it  shall  require.  The  writ  of  execution  must  be  issued  in  the  name 
of  the  people,  sealed  with  the  seal  of  the  court,  and  subscribed  by  the  clerk, 
and  be  directed  to  the  sheriff,  and  it  must  intelligibly  refer  to  the  judg- 
ment, stating  the  court,  the  count.y  where  the  judgment  roll  is  filed,  and 
if  it  be  for  money,  the  amount  thereof,  and  the  amount  actually  due 
thereon,  and  if  made  payable  in  a  specified  kind  of  money  or  currency,  as 
provided  in  section  six  hundred  and  sixty-seven,  the  execution  must  also 
state  the  kind  of  money  or  currency  in  which  the  judgment  is  payable,  and 
must  require  the  sheriff  substantially  as  follows: 

1.  If  it  be  against  the  property  of  the  judgment  debtor,  it  must  require 
the  sheriff  to  satisfy  the  judgment,  with  interest,  out  of  the  personal  prop- 
erty of  such  debtor,  and  if  sufficient  personal  property  cannot  be  found, 
then  out  of  his  real  property;  or  if  tlie  judgment  be  a  lien  upon  real  prop- 
erty, then  out  of  the  real  property  belonging  to  him  on  the  day  when  the 
judgment  was  docketed,  or  at  any  time  thereafter;  or  if  the  execution  be 
issued  to  a  county  other  than  the  one  in  which  the  judgment  was  recovered, 
on  the  day  when  the  transcript  of  the  docket  was  filed  in  the  office  of  the 
recorder  of  such  county,  stating  such  day,  or  any  time  thereafter; 


§682 


EXECUTION. 


79& 


2.  If  it  be  against  real  or  personal  property  in  the  hands  of  the  personal 
representatives,  heirs,  devisees,  legatees,  tenants,  or  trustees,  it  must  re- 
quire the  sheriff  to  satisfy  the  judgment,  with  interest,  out  of  such  prop- 
erty; 

3.  If  it  be  against  the  person  of  the  judgment  debtor,  it  must  require  the 
sheriff  to  arrest  such  debtor  and  commit  him  to  the  jail  of  the  county  until 
he  pay  the  judgment,  with  interest,  or  be  discharged  according  to  law ; 

4.  If  it  be  issued  on  a  judgment  made  payable  in  a  specified  kind  of 
money  or  currency,  as  provided  in  section  six  hundred  and  sixty-seven,  it 
must  also  require  the  sheriff  to  satisfy  the  same  in  the  kind  of  money  or 
currency  in  "which  the  judgment  is  made,  payable,  and  the  sheriff  must  re- 
fuse payment  in  any  other  kind  of  money  or  currency ;  and  in  case  of  levy 
and  sale  of  the  property  of  the  judgment  debtor,  he  must  refuse  payment 
from  any  purchaser  at  such  sale  in  any  other  kind  of  money  or  currency 
than  that  specified  in  the  execution.  The  sheriff  collecting  money  or  cur- 
rency in  the  manner  required  by  this  chapter,  must  pay  to  the  plaintiff 
or  party  entitled  to  recover  the  same,  the  same  kind  of  money  or  currency 
received  by  him,  and  in  case  of  neglect  or  refusal  so  to  do,  he  shall  be  liable 
on  his  official  bond  to  the  judgment  creditor  in  three  times  the  amount 
of  the  money  so  collected ; 

5.  If  it  be  for  the  delivery  of  the  possession  of  real  or  personal  property ,^ 
it  must  require  the  sheriff  to  deliver  the  possession  of  the  same,  describing 
it,  to  the  party  entitled  thereto,  and  may  at  the  same  time  require  the 
sheriff  to  satisfy  any  costs,  damages,  rents,  or  profits  recovered  by  the  same 
judgment,  out  of  the  personal  property  of  the  person  against  whom  it  was 
rendered,  and  the  value  of  the  property  for  which  the  judgment  was  ren- 
dered to  be  specified  therein  if  a  delivery  thereof  cannot  be  had;  and  if 
sufficient  personal  property  cannot  be  found,  then  out  of  the  real  property^ 
as  provided  in  the  first  subdivision  of  this  section. 


Contempt  in  interfering  with.  Post,  §§  1209, 
1210. 

Judgments. 

1.  A  lien.     Ante,  §§  671,   674. 

2.  Interest  on.     See  Civ.  Code,  §§  1917,  1918, 
1920. 

Property  leviable.    Ante,  §  542;  post,  §  688. 

Levy  without  process,  a  misdemeanor.  See 
Pen.  Code.  §  146. 

Mandamus,  execution  may  issue  for  costs  and 
damages  in.    See  post,  §  109.5. 

Suhd.  4.  Judgment  payable  in  specified  kind 
of  money.    Ste  ante,  §  667. 

Legislation  g  682.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  210  (New  York  Code, 
§289),  as  amended  by  Stats.  1863,  p.  688. 
When  §  682  was  enacted  in  1872,  (1)  in  the 
introductory  paragraph,  (a)  in  the  first  line, 
"shall"  was  changed  to  "must,"  (b)  "shall"  was 
omitted  before  "be  directed,"  (c)  "shall"  was 
changed  to  "it  must,"  before  "intelligibly,"  (d) 
"section  200  of  this  act"  was  changed  to  "sec- 
tion 667,"  and  (e)  "shall"  was  changed  to 
"must"  after  "execution"  and  before  "require" ; 
(2)  in  subd.  1,  (a)  "shall"  was  changed  to 
"must"  before  "require,"  and  (b)  the  words  "or 
at  any  time  thereafter"  were  added  after  "dock- 
eted"; (3)  in  subd.  2,  (a)  the  words  "of  real 
property"  were  omitted  after  "tenants,"  and  (b) 
"shall"  was  changed  to  "must"  before  "require"; 

(4)  in   subd.   3,    "shall"   was  changed  to   "must"; 

(5)  in  subd.  4,  (a)  the  words  "section  200  of 
this  act,  it  shall"  were  changed  to  "section  667, 
it  must,"  (b)  "said"  was  changed  to  "the"  be- 
fore "judgment  is  made,"  (c)  "shall"  was  changed 
to  "must"  after  "sheriff,"  (d)  "shall"  was  changed 


to  "must"  before  "refuse  pa>Tnent,"  and  (e> 
"act  shall"  was  changed  to  "chapter,  must"; 
(6)  in  subd.  5,  (a)  "shall"  was  changed  to 
"must"  before  "require,"  and  (b)  "particularly" 
was  omitted  before  "describing." 

3.  Amendment  by  Stats.  1901,  p.  152 ;  un- 
constitutional.    See    note    ante.  §  5. 

Writ  must  be  subscribed  by  clerk.   Every 

execution,  to  be  valid,  must  be  subscribed 
by  the  clerlv;  if  his  term  has  expired,  the 
execution,  if  signed  by  a  deputy  clerk,  i» 
void.  O'Donnell  v.  Merguire,  6  Cal.  Unrep, 
423;  60Pac.  981. 

Statement  of  amount  due  in  the  writ. 
The  provision  in  this  section,  that  an 
execution  for  money  shall  state  the  amount 
actually  due  thereon,  does  not  apply  to  an 
order  of  sale  upon  a  judgment  for  the  fore- 
closure of  a  mortgage.  Hibernia  Sav.  etc, 
Soc.  V.  Behnke,  121  Cal.  339;  53  Pac.  812. 

What  may  be  levied  upon.  The  only 
purpose  of  an  execution,  in  respect  to  real 
estate  upon  which  a  judgment  lien  sub- 
sists, and  while  it  subsists,  is  to  enforce 
the  lien  by  a  sale  of  the  property;  and, 
doubtless,  lands  not  subject  to  the  judg- 
ment lien  may  be  levied  upon  by  virtue 
of  the  execution.  Bagley  v.  Ward,  37  CaL 
121;  99  Am,  Dec.  256. 


799 


WRIT    ATTACKED    HOW — AMENDMENT — VALIDITY    OF    EXECUTION.        §  682 


Order  in  which   property   may   be   sold. 

Tlic  court  may  ilircct  the  order  in  which 
property  may  be  sold,  regardlet^s  of  liie 
order  in  which  the  parcels  were  enumerated 
by  the  pleader  or  set  forth  in  the  com- 
plaint; and  the  court  may  follow,  by 
analogy,  in  a  foreclosure  sale,  the  require- 
ments of  this  section  for  the  terms  of  an 
ordinary  writ  of  execution,  and  direct  that 
the  personal  property  be  sold  before  resort- 
ing to  the  real  estate.  Bank  of  Ukiah  v. 
Reed,  131  Cal.  597;  (53  Pac.  9l21. 

How  writ  may  be  attacked.  A  void  writ 
of  exccutiou  may  be  attacked  by  motion 
to  vacate  and  set  it  aside,  and  also  the 
sale  made  under  it.  Borland  v.  Hanson,  81 
Cal.  202;  15  Am.  St.  Eep.  44;  22  Pac.  5.52; 
Buell  V.  Buell,  92  Cal.  393;  28  Pac.  443. 
Although  the  complaint  was  demurrable, 
and  the  judgment  founded  upon  it  erro- 
neous for  that  reason,  yet  it  does  not  fol- 
low that  such  judgment  can  be  reviewed  or 
the  error  corrected  on  motion  to  quash  the 
execution,  unless  the  judgment  is  utterly 
void.  Hayward  v.  Pimental,  107  Cal.  386; 
40  Pac.  545.  A  motion  to  recall  an  execu- 
tion is  a  new  and  original  proceeding; 
and  the  fact  that  the  notice  of  the  motion 
is  signed  by  attorneys  other  than  those 
who  appeared  in  the  original  action,  and 
that  no  substitution  is  shown,  does  not 
render  the  notice  illegal.  Buell  v.  Buell, 
92  Cal.  393;  28  Pac.  443;  and  see  Mc- 
Donald V.  McConkey,  54  Cal.  143. 

Amendment  of  writ.  The  power  to 
amend  an  execution  is  limited  to  the 
amendment  of  the  writs  of  the  court, 
which  can  only  be  authenticated,  under  a 
statute  such  as  ours,  by  the  signature  of 
the  clerk,  which  signature  is  an  essential 
part  of  the  writ,  without  which  there  is  no 
execution  to  be  amended.  O'Donnell  v. 
Merguire,  131  Cal.  527;  82  Am.  St.  Eep. 
389;  63  Pac.  847.  Where  an  irregular  or 
imperfect  execution  is  amendable,  it  is  not 
void,  but  only  voidable,  and  it  should  be 
served  and  returned  bv  the  sheriff.  Van 
Cleave  v.  Bucher,  79  Cal.  600;  21  Pac.  954; 
and  see  Hibberd  v.  Smith,  50  Cal.  511. 
A  copy  of  a  judgment  of  foreclosure  of  a 
mortgage,  issued  and  attested  by  the  clerk, 
but  not  issued  in  the  name  of  the  people, 
neither  directed  to  the  sheriff  nor  direct- 
ing him  to  execute  the  judgment,  is  not 
void,  but  is  amendable,  and  will  be  re- 
garded as  sufficient  authority  to  the  sheriff 
to  sell  and  convey  the  mortgaged  premises. 
Newmark  v.  Chapman,  53  Cal.  557;  and  see 
Granger  v.  Sheriff,  140  Cal.  190;  73  Pac. 
816;  Hager  v.  Astorg,  145  Cal.  548;  104 
Am.  St.  Rep.  68;  79  Pac.  68. 

Validity  of  execution.  Whether  an  exe- 
cution is  void  or  only  voidable,  depends 
upon  the  question  whether  or  not  it  is 
amendable.  Hunt  v.  Loucks,  3S  Cal.  372; 
99  Am.  Dec.  404.  A  sale  to  a  bona  fide 
purchaser  under  a  voidable  execution  is 
valid,  though  the  execution  is  afterwards 


set  aside;  but  a  sale  under  a  void  execu- 
tion is  invalid,  and  passes  no  title,  even 
to  a  bona  fide  purchaser.  Hunt  v.  Loucks, 
38  Cal.  372;  99  Am.  Dec  404;  and  see 
Reynolds  v.  Harris,  14  ("al.  667;  76  Am. 
Dec.  459;  Johnson  v.  Lamping,  34  Cal.  293. 
An  execution  directing  the  levy  of  more 
money  than  the  judgment  calls 'for  is  not 
void,  but  only  voidable,  and  the  sale  there- 
under is  not  invalid.  Hunt  v.  Loucks,  38 
Cal.  372;  99  Am.  Dec.  404.  A  sale  made 
on  a  void  execution  is  void,  in  consequence 
of  irregularity  in  the  proceedings  concern- 
ing the  sale.  Merguire  v.  O'Donnell,  139 
Cal.  6;  96  Am.  St.  Rep.  91;  72  Pac.  337. 
A  collateral  attack  can  no  more  be  made 
upon  an  erroneous  execution,  than  upon  an 
erroneous  judgment;  like  an  erroneous 
judgment,  an  erroneous  execution  is  valid 
until  set  aside  upon  a  direct  proceeding 
proper  for  that  purpose;  and,  until  set 
aside,  all  the  acts  which  have  been  done 
•  under  it  are  also  valid.  Hunt  v.  Loucks 
38Cal.  372;99  Am.  Dec.  404.  ' 

Amendment  of  writs  of  execution.  See  note 
101   Am.  St.  Kcp.  550. 

Effect  of  variance  of  execution  from  judgment 
as  regards  collection  of  interest.  See  note  8 
Ann.  Cas.  169. 

Constitutionality  of  imprisonment  on  execution 
See  note  34  L.  K.  A.  G34. 

Arrest  under  civil  process  for  breach  of  war- 
ranty.   See  note  20  L.  K.  A.   (N.  S.)    844. 

CODE  COMMISSIONERS'  NOTE.  Hunt  v. 
Loucks,  38  Cal.  372;  99  Am.  Doc.  404.  Where 
a  remittitur  has  been  issued  to  a  district  court, 
the  clerk  may  issue  an  e.xecution  for  the  costs 
accrued  thereon,  williout  the  ordei-  of  the  district 
court;  nor  can  the  district  court  prevent  the  im- 
mediate execution  of  the  judgment.  Marvsville 
V.  Buchanan,  3  Cal.  213.  Where  the  clerk 'of  the 
district  court  improperly  refuses  to  issue  e.xecu- 
tion on  a  judgment  rendered  in  the  court  of 
which  he  is  clerk,  on  the  ground  that  the  judg- 
ment has  been  attached  at  the  suit  of  another 
person,  a  bill  of  equity  cannot  be  sustained  to 
release  the  attachment  and  compel  the  clerk  to 
issue  the  execution  by  an  action  on  the  othcial 
bond  of  the  clerk.  Miller  v.  Sanderson,  10  Cal. 
489.  A  writ  of  mandate  will  not  lie  to  compel 
clerk  to  issue  e.xecution.  Id.;  Goodwin  v.  Glazer, 
10  Cal.  333.  An  e.xecution  cannot  exceed  the 
judgment.  Davis  v.  Robinson,  10  Cal.  411.  If 
the  e.xecution  authorize  the  levy  of  more  money 
than  the  judgment  calls  for,  it  is  voidable,  but 
not  void,  and  will  not  be  set  aside,  but  amended 
so  as  to  correspond  witli  the  judgment  Hunt  v 
Loucks,  38  Cal.  373;  99  Am.  Dec.  401.  The 
clerk  can  issue  execution  for  damages  and  costs. 
McMillan  v.  Vischer,  14  Cal.  232.  Thus,  if  a. 
judgment  is  against  two,  only  one  of  whom  ap- 
peals, and  the  appeal  is  dismissed  with  twenty 
per  cent  damages,  the  damages  with  the  costs  do 
not  become  part  of  the  original  judgment,  and 
the  redemptioner  is  not  bound  to  pay  them  win  ii 
he  redeems  from  a  sale  under  the  judgment. 
Execution  may  issue  for  these  damages  an<l  costs. 
McMillan  v.  Vischer.  14  Cal.  241.  No  execution 
can  issue  upon  a  judgment  rendered  against  a 
county.  When  a  judgment  is  rendered  against 
a  county,  it  is  the  duty  of  the  supervisors  to 
apply  such  funds  in  the  treasury  of  the  county 
as  are  not  otherwise  appropriated  to  its  pay- 
ment, or  if  there  are  no  funds,  and  they  possess 
the  requisite  power  to  levy  a  tax  for  that  pur- 
pose, and  if  they  fail  or  refuse  to  apply  the  funds 
or  to  execute  the  power,  resort  may  be  had  to  a 
mandamus.  If  there  are  no  funds,  and  the  power 
to  levy  the  tax  has  not  been  delegated  to  theru, 
the  legislature  must  be  invoked  for  additional 
authority.     Emeric    v.    Gilman,    10    Cal.    404;    70- 


683 


EXECUTION. 


800 


Am      Dec.     742.     Issuing     a     second     execution 

improperly  is  not  a  ground  for  equitable  inter- 
ference. The  irregular  proceeding  must  be  cor- 
rected by  the  court  issuing  the  writ.  Gregory 
V.  Ford,  14  Cal.  143;  73  Am.  Dec.  639.  If 
judgment  by  default  be  valid  because  of  irregu- 
larities in  the  proceedings,  the  district  court  can 
quash  the  execution  issued  on  such  judgment,  and 
injunction  to  restrain  the  enforcement  thereof 
does    not    lie.     Logan   v.    HilU-gass,    16    Cal.    200. 


Where  a  referee  reported  the  existence  and  va 
lidity  of  a  judgment  more  than  five  years  old, 
and  also  reported  a  judgment  that  execution  issue 
on  the  same,  but  stated  that  he  had  not  passed 
on  the  question  whether  the  judgment  had  been 
paid  by  an  alleged  accord  and  satisfaction,  the 
order  of  the  court  confirming  the  report  of  the 
referee  does  not  authorize  the  issuance  of  an 
execution  on  the  judgment.  Solomon  v.  Maguire, 
29  Cal.  227. 


§  683.  When  made  returnable.  The  execution  may  be  made  returnable, 
at  any  time  not  less  than  ten  nor  more  than  sixty  days  after  its  receipt  by 
the  sheriff,  to  the  clerk  with  whom  the  judgment  roll  is  filed.  When  the 
execution  is  returned,  the  clerk  must  attach  it  to  the  judgment  roll.  If 
any  real  estate  be  levied  upon,  the  clerk  must  record  the  execution  and  the 
return  thereto  at  large,  and  certify  the  same  under  his  hand  as  true  copies, 
in  a  book  to  be  called  the  "'execution-book,"  which  book  must  be  indexed, 
with  the  names  of  the  plaintiffs  and  defendants  in  execution  alphabetically 
arranged,  and  kept  open  at  all  times  during  office  hours  for  the  inspection 
of  the  public,  without  charge.  It  is  evidence  of  the  contents  of  the  origi- 
nals whenever  they,  or  any  part  thereof,  may  be  destroyed  or  mutilated. 


Return,  failure  to  make,  without  delay,  liabil- 
ity of  sheriff.    See  Pol.  Code,  §  4160. 

Legislation  §  683.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  212  (New  York  Code, 
§290),  as  amended  by  Stats.  1865-66,  p.  703, 
which  had  (1)  in  lieu  of  the  present  second  sen- 
tence, the  clause  "when  the  execution  shall  have 
been  returned,  it  shall  be  the  duty  of  the  clerk 
to  attach  the  same  to  the  judgment  roll";  (2) 
the  word  "shall"  instead  of  "must"  before  "re- 
cord" and  before  "be  indexed";  (3)  instead  of 
the  words  "It  is,"  in  last  sentence,  had  the  words 
"and  shall  be";  and  (4)  the  word  "lost"  before 
"or  mutilated." 

Levy  and  seizure.  The  levy  is  the 
essential  act  by  which  the  iiroperty  is 
taken  into  the  custody  of  the  law  and  set 
apart  for  the  satisfaction  of  the  judgment; 
and  after  it  has  been  taken  from  the  de- 
fendant, his  interest  is  limited  to  its  ap- 
plication to  the  judgment,  irrespective  of 
the  time  when  it  may  be  sold.  Southern 
California  Lumber  Co.  v.  Ocean  Beach 
Hotel  Co.,  94  Cal.  217;  28  Am.  St.  Rep. 
115;  29Pac.  627. 

Application  of  proceeds  of  sale.  The 
sheritf  must  show  that  the  seizure  of  par- 
ticular property  is  within  the  scope  of  his 
writ;  and  if,  by  the  terms  of  the  writ, 
sueh  seizure  is  authorized  only  within  a 
limited  period  of  time,  a  seizure,  after 
that  time  has  expired,  is  unauthorized,  and 
he  is  liable  for  trespass;  but  where  he  has 
taken  the  property  within  the  lifetime  of 
the  writ,  it  has  then  become  lawfully  sub- 
ject to  be  ajiplic<l  in  satisfaction  of  the 
judgment,  and  a  sale  thereof  may  be  made 
at  any  time  thereafter.  Southern  Califor- 
nia Lumber  Co.  v.  Ocean  Beach  Hotel  Co., 
94  Cal.  217;  28  Am.  St.  Kep.  115;  29  l^ac. 
627. 


Amendment 

signature.    Set 


of    officer's    return    in 

note   17  Ann.  Cas.  459. 


CODE  COMMISSIONERS'  NOTE.  Where  an 
execution  on  a  judgini'nt  for  money  is  not  stayed 
by  the  statutory  undertaking  on  appeal,  a  sale 
may  be  had  under  the   execution,   and   the   rights 


of  purchasers  are  not  affected  by  the  subsequent 
reversal  of  the  judgment.  Farmer  v.  Kogers,  10 
Cal.  335.  A  comession  of  judgment  to  a  creditor, 
in  good  faith,  and  the  issuance  of  execution,  and 
making  a  levy  under  the  same  by  the  .iuat,m.-nt 
debtor,  without  the  knowledge  of  the  judgment 
creditor,  done  with  the  knowledge  that  another 
creditor  is  about  to  attach,  and  for  the  purpose 
of  defeating  his  attachment,  is  void  as  to  the 
attaching  creditor.  Ryan  v.  Daly,  6  Cal.  238. 
A  judge  at  chambers  has  authority  to  suspend 
proceedings  under  an  execution  until  a  motion 
before  the  court  to  recall  or  quash  it  can  be 
heard.  If  a  judgment  upon  which  an  execution 
issues,  and  the  t-xecution  itself,  are  voui  upon 
their  face,  the  court  has  power,  on  motion,  to 
afford  relief,  and  can  arrest  the  process.  Sanchez 
V.  Carriaga,  31  Cal.  170.  When  a  judgment  is 
reversed,  and  the  case  remanded,  and  the  clerk 
of  the  court  below  issues  an  execution  for  all  the 
costs,  as  well  those  of  appeal  as  those  accruing 
before  notice  of  appeal  is  filed,  an  order  may  be 
made  staying  the  execution  in  the  hands  of  the 
sheriff  until  an  application  can  be  made  to  the 
court  to  retax  and  adjust  the  costs.  Ex  parte 
Burrill,  24  Cal.  350.  If,  after  a  judgment  re- 
covered by  an  attaching  creditor  has  been  satis- 
fied, he  is  proceeding  to  sell  attached  property 
under  execution,  the  defendant  in  the  execution 
may  move  to  quash  the  writ.  Domec  v.  Stearns, 
30  Cal.  114.  The  writ  of  scire  facias  cannot 
issue  for  the  revival  or  enforcement  of  a  judg- 
ment. Humiston  v.  Smith,  21  Cal.  129;  see  also 
§  085,  post.  A  sheriff's  return  is  not  traversable, 
and  cannot  be  attacked  collaterally,  even  if  the 
officer  is  shown  to  have  been  guilty  of  fraud  and 
collusion.  Egery  v.  Buchanan,  5  Cal.  56.  Nor 
can  it  be  amended  so  as  to  postpone  the  rights 
of  creditors  attaching  subsequently,  but  before 
the  correction.  Newhall  v.  Provost,  6  Cal.  87; 
Webster  v.  Haworth,  8  Cal.  25;  68  Am.  Dec. 
287.  The  term  "appurtenances,"  used  in  the  re- 
turn of  a  levy  by  a  sheriff,  is  too  general,  vague, 
and  indefinite  to  embrace  within  its  meaning  any 
personal  property  as  the  subject  of  levy.  Mun- 
roe   V.    Thomas,    5    Cal.    470. 

Writ  of  assistance  and  restitution.  A  writ  of 
assistance  can  only  be  issued  against  the  defend- 
ants in  the  suit,  and  parties  holding  under  them, 
who  are  bound  by  the  decree.  Burton  v.  Lies,  21 
{,'al.  8  7.  A  writ  of  assistance  against  the  owner 
or  parties  holding  under  him  will  be  refused,  if 
the  court,  in  an  action  of  foreclosure  of  mort- 
gage, had  not  acquired  jurisdiction  of  the  party 
owning  the  land  at  the  time  of  foreclosure. 
Steinbach  v.  Leese,  27  Cal.  295.  The  sheriff, 
who  has  the  writ  of  habere  facias  possessionem, 
must  remove  all  persons  who  came  upon  the 
property   after  the  suit  was  begun,   except  a  per-" 


801 


MONEY  AND  OTHER  JUDGMENTS  ENFORCED   HOW, 


§684 


son,   other  than  the  defendant,    who   is   in   posses-         Cal.  665;  La  Koy  r.  Rogers,  30  Cal.  230;  89  Am. 
sion  under  a  title  adverse  to  defendant.    Long  v.         Dec.   88, 
Neville,  29  Cal.   135;   eee  also  Leese  v.  Clark,   29 

§  684.  Money  judgments  and  others,  how  enforced.  When  the  jnd'j:- 
nu'iit  is  for  money,  or  tlie  posse.ssion  of  real  or  personal  property,  the  same 
may  be  enforced  by  a  writ  of  execution;  and  if  the  judgment  direct  that 
the  defendant  be  arrested,  the  execution  may  issue  aj^ainst  the  person  of 
the  judgment  debtor,  after  the  return  of  an  execution  against  his  property 
unsatisfied  in  whole  or  part;  when  the  judgment  requires  the  sale  of  prop- 
erty, the  same  may  be  enforced  by  a  writ  reciting  such  judgment,  or  the 
material  parts  thereof,  and  directing  the  proper  officer  to  execute  the  judg- 
ment, by  making  the  sale  and  applying  the  proceeds  in  conformity  tliere- 
Avith;  when  the  judgment  requires  the  performance  of  any  other  act  than 
as  above  designated,  a  certified  copy  of  the  judgment  may  be  served  upon 
the  party  against  whom  the  same  is  rendered,  or  upon  the  person  or  officer 
required  thereby  or  by  law  to  obey  the  same,  and  obedience  thereto  may 
be  enforced  by  the  court. 

Money,  how  computed  and  stated  in  Judgment. 
SoG   Pol.   Code,  §  3274. 

Writ  of  possession  or  restitution.  Ante,  §  380; 
post,  §  1174. 

Re-entry  after  dispossession.    Post,  §  1210. 

Execution  against  the  person,  discharge  of 
prisoner.    Post,  §§  1 143-11. ")4. 

Sale  of  property.     See  post,  §§  694  et  seq. 

Performance  of  any  other  act.  Enforcing 
obedience.     Post,  §§  1209   et  seq. 

Legislation  §  684.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  213,  as  amended  by 
Stats.  1865-66,  p.  703,  which  read:  "Where  the 
judgment  requires  the  payment  of  money  or  the 
delivery  of  real  or  personal  property,  the  same 
may  be  enforced  by  a  writ  of  execution;  when  it 
requires  the  performance  of  any  other  act,  a 
certified  copy  of  the  judgment  may  be  served 
upon  the  party  against  whom  the  same  is  ren- 
dered, or  upon  the  person  or  officer  required 
thereby  or  by  law  to  obey  the  same;  obedience 
thereto  may  be  enforced  by  the  court;  and  after 
a  final  judgment  of  partition  the  court  shall  have 
power  to  enforce  a  severance  of  the  possession." 
When  §  684  was  enacted  in  1S72,  the  words 
"shall  have,"  in  last  line,  were  changed  to  "has." 

2.   Amended    by  Code  Amdts.  1873-74,  p.  321. 

Scope  of  section.  The  only  process  pro- 
vided in  this  state  for  the  enforcement  of 
a  judgment  foreclosing  a  lien  upon  specific 
property  is  that  prescribed  by  this  section. 
JSouthern  California  Lumber  Co.  v.  Ocean 
Beach  Hotel  Co.,  94  Cal.  217;  28  Am.  St. 
Kep.  115;  29  Pac.  627.  A  writ  of  execu- 
tion on  a  money  judgment  must  require 
the  sheriff  to  "satisfy"  the  judgment  out 
of  the  property  of  the  judgment  debtor; 
but  it  is  different  with  the  execution  of  an 
order  for  the  sale  of  property  in  satisfac- 
tion of  a  lien.  Hooper  v.  McDade,  1  Cal. 
App.  733;  82  Pac.  1116. 

Sale  by  sheriff.  A  writ  of  venditioni 
exponas  is  not  necessary  to  justify  a  sale, 


foreclosure  suits  is  enforced  is  proviiled 
for  in  this  section  and  §  694,  post.  Ontario 
Land  etc.  Co.  v.  Bedford,  90  Cal.  181;  27 
Pac.  39.  The  writ  reciting  the  judgment, 
or  the  material  parts  thereof,  and  direct- 
ing the  oiKcer  to  execute  the  judgment  by 
making  the  sale,  etc.,  is  the  proper  course 
in  foreclosure  proceedings;  and  by  analogy 
to  the  former  ec]uity  practice,  this  writ  is 
usually  termed  an  order  of  sale.  Tregear 
V.  Etiwanda  Water  Co.,  76  Cal.  537;  9  Am. 
St.  Kep.  245;  18  Pae.  658.  A  judgment 
which  directs  the  sale  of  specific  property 
to  satisfy  a  mortgage  or  other  lien  upon 
it  falls  within  that  class  of  judgments  re- 
quiring the  performance  of  an}-  other  act 
than  the  payment  of  money  or  the  delivery 
of  real  or  personal  property,  and  is  to  be 
enforced  by  the  proper  officer,  under  a 
certified  copy  of  the  .judgment.  Heyman 
V.  Babcock,  30  Cal.  367.  In  an  action  to 
foreclose  a  mortgage  covering  several  ad- 
joining tracts  of  land,  the  court  has  power 
to  render  judgment  directing  the  projierty 
to  be  sold  as  one  tract.  Hopkins  v.  Wiard, 
72  Cal.  259;  13  Pac.  687.  The  sale  must 
be  in  conformity  with  the  judgment,  in  a 
foreclosure  suit,  under  a  writ  reciting  the 
judgment,  or  the  material  parts  thereof. 
Hopkins  v.  Wiard,  72  Cal.  259;  13  Pac. 
687.  Property  which  has  been  specifically 
impressed  with  the  burden  of  satisfying 
the  judgment  may  be  sold  after  the  re- 
turn-day of  the  writ,  under  the  order  of 
the  court,  and  the  judgment  debtor  is  not 
affected  by  the  time  within  which  such 
.  „  ,  sale    shall     be    made.     Southern     California 

as   the    writ   itself   is    only   a   direeUon   to       Lumber   Co.   v.   Ocean   Beach   Hotel   Co.,   94 


perform  a  duty  which  already  exists,  and 
the  sheriff  acquires  no  additional  author- 
ity from  its  issuance.  Southern  California 
Lumber  Co.  v.  Ocean  Beach  Hotel  C^o.,  94 
Cal.  217;  28  Am.  St.  Rep.  115;  29  Pac.  027. 

Sale    of   property    in   foreclosure   suits. 
The  process  under  which  the  judgment  in 
1  Fair. — 51 


Cal.  217;  28  Am.  St.  Rep.  115;  29  Pac.  627. 
An  officer  has  no  more  authority  to  en- 
force a  judgment  of  foreclosure  without  a 
certifie(i  copy  of  the  judgment,  than  he 
has  to  enforce  a  simple  money  judgment 
without  an  execution.  Hoyman  v.  Babcock, 
30  Cal.  367.     The  time  within  which  a  sale 


685 


EXECUTION. 


802 


is  directed  to  be  made  to  satisfy  a  judg- 
ment ordering  a  sale  upon  foreclosure  of 
a  lien  is  but  directory,  and  under  the  con- 
trol of  the  court;  and  the  sale  should  not 
be  set  aside,  merely  because  it  was  not 
made  before  the  return-day  of  the  writ. 
Southern  California  Lumber  Co.  v.  Ocean 
Beach  Hotel  Co.,  94  Cal.  217;  28  Am.  St. 
Eep.  115;  29  Pac.  627. 

Property  and  interests  affected  by  exe- 
cution sale.  A  judgment  lien  or  a  levy, 
or  a  subsequent  sale,  can  in  no  event 
operate  on  any  interest  in  land  not  in  fact 
owned  by  a  defendant.  Lehnhardt  v.  Jen- 
nings, 119  Cal.  192;  48  Pac.  56.  An  after- 
acquired  title  does  not  pass  by  execution 
sale,  nor  is  it  affected  by  such  sale.  Kupert 
V.  Jones,  119  Cal.  Ill;  51  Pac.  26.  A  sale 
of  community  property,  made  in  pursuance 
of  a  decree  granting  a  divorce,  is  effective 
and  valid  without  being  confirmed  by 
the  court,  where  the  order  for  the  sale 
does  not  expressly  require  a  confirmation. 
Kimple  v.  Conway,  75  Cal.  413;  17  Pac. 
546. 

Relation  between  judgment  and  execu- 
tion sale.  Surplusage  in  a  final  judgment 
for  money  does  not  affect  the  right  to  exe- 
cution thereunder.  Hentig  v.  Johnson,  8 
Cal.  App.  221;  96  Pac.  390.  The  judgment 
remains  unchanged,  though  the  court  sets 
aside  the  sale  thereunder.  Hopkins  v. 
Wiard,  72  Cal.  259;  13  Pac.  687. 

Enforcement  of  judgment  for  alimony. 
A  final  decree  of  divorce  granted  to  a 
wife,  containing  a  judgment  in  her  favor 
for  permanent  alimony  in  a  single  sum  of 
money,  can  only  be  regarded  as  an  ordi- 
nary money  judgment,  to  be  enforced  by 
writ  of  execution  against  the  property  of 
the  husband.  White  v.  White,  130  Cal. 
597;  80  Am.  St.  Eep.  150;  62  Pac.  1062. 

§  685.  Execution  after  five  years.  In  all  cases,  the  judgment  may  be 
enforced  or  carried  into  execution  after  the  lapse  of  five  years  from  the 
date  of  its  entry,  by  leave  of  the  court,  upon  motion,  or  by  judgment  for 
that  purpose,  founded  upon  supplemental  pleadings;  but  nothing  in  this 
section  shall  be  construed  to  revive  a  judgment  for  the  recovery  of  money 
which  shall  have  been  barred  by  limitation  at  the  time  of  the  passage  of 
this  act. 

Legislation  §  685.  1.  Enacted  March  11,  1873; 
re-enactment  of  Practice  Act,  §  214,  as  amended 
by  Stats.  1865-66,  p.  704,  which  had  the  words 
"other  than  for  the  recovery  of  money,"  after 
"In  all  cases,"  in  first  line,  the  section  then  end- 
ing  with   the   words    "supplemental   pleadings." 

2.  Amended  by  Stats.  1895.  p.  38,  (1)  omit- 
ting the  words  noted  supra,  and  (2)  adding  the 
limitation  after  the  words  "supplemental  plead- 
ings." 


Notice.  The  process  issued  to  enforce  a 
judgment  under  this  section  is  always  exe- 
cuted without  notice,  other  than  that  given 
to  the  general  public  by  ordinary  posting 
and  advertisement.  Lehnhardt  v.  Jennings, 
119  Cal.  192;  48  Pac.  56. 

How  court  may  enforce  obedience  to 
judgment.  Under  this  section,  the  court 
may  resort  to  proceedings  in  contempt  for 
the  purpose  of  enforcing  obedience  to  a 
judgment  which  requires  the  execution  of 
a  conveyance  by  a  party  thereto.  Seventy- 
six  Land  etc.  Co.  v.  Superior  Court,  93  Cal. 
139;  28  Pac.  813. 

Eights  of  execution  debtor.  An  execu- 
tion debtor  has  the  right  of  designating 
the  property  to  be  levied  upon,  but  he 
cannot  defeat  a  levy  by  neglecting  or  re- 
fusing to  exercise  the  right.  Frink  v.  Eoe, 
70  Cal.  296;  11  Pac.  820. 

Presumption  on  appeal.  The  presump- 
tion on  appeal  is,  that  the  execution  in  a 
foreclosure  suit  conformed  with  that  por- 
tion of  this  section  which  provides  that 
"when  the  judgment  requires  the  sale'  of 
property  the  same  may  be  enforced  by 
a  writ  reciting  such  judgment,  or  the 
material  parts  thereof,  and  directing  the 
proper  ofiScer  to  execute  the  judgment,  by 
making  the  sale  and  applying  the  pro- 
ceeds in  conformity  therewith."  Northern 
etc.  Trust  v.  Cadman,  101  Cal.  200;  and 
see  Newmark  v.  Chapman,  53  Cal.  557. 

CODE  OOMMISSIONEES'  NOTE.  Where  an 
execution,  commanding  the  sheriff  to  deliver  pos- 
session of  a  chattel,  has  been  finally  and  com- 
pletely executed,  the  power  of  the  sheriff  under 
it,  and  the  authority  of  the  court  to  enforce  it, 
cease;  and  a  wrong-doer,  afterwards  trespassing 
upon  the  person  thus  put  in  possession,  is  not 
guilty  of  contempt  for  disobedience  to  the  pro- 
cess of  the  court.    Loriug  v.  lllsley,  1  Cal.  24. 


Construction  of  section.  This  section 
applies  only  to  judgments  of  courts  of 
record.  White  v.  Clark,  8  Cal.  512.  It 
provides  a  different  period  of  limitation 
from  that  of  §  336,  ante,  and,  with  §  925, 
post,  does  not  authorize  an  independent 
action  on  a  judgment  rendered  in  a  jus- 
tice's court  after  the  lapse   of  five  years. 


John  Heinlen  Co.  v.  Cadwell,  3  Cal.  App. 
80;  84  Pac.  443.  It  applies  to,  and  was 
evidently  intended  to  apply  to,  judgments 
requiring  the  party  against  whom  ren- 
dered to  do  some  specific  act,  such  as  to 
deliver  specific  real  or  personal  property; 
therefore  the  court  can  properly  set  aside 
and  vacate  a  former  order  authorizing  a 
writ  of  execution  to  issue  upon  a  decree 
foreclosing  a  street  assessment  after  the 
lapse  of  five  years,  and  vacate  the  sale 
made  thereunder.  Borland  v.  Hanson,  81 
Cal.  202;  15  Am.  St.  Eep.  44;  22  Pac.  552; 
and  see  Cortez  v.  Superior  Court,  86  Cal. 
274;  21  Am.  St.  Eep.  37;  24  Pac.  1011; 
Jacks  v.  Johnston,  86  Cal.  384;  21  Am.  St. 


803 


APPLICATION  FOR  EXECUTION — JURISDICTION,  ETC. 


Jicp.  50;  24  Pac.  1057;  Buell  v.  Buell,  92 
Cal.  393;  28  Pac.  443.  The  authority 
given  by  this  section,  conceding  it  to 
apply  to  judfrnients  of  justices  of  the 
peace,  of  extending  the  time  for  the  issu- 
ance of  an  execution,  is  "restricted  to  the 
court  and  to  the  original  action  in  which 
the  judgment  was  rendered.  John  Heinlen 
Co.  V.  Cadwell,  3  Cal.  App.  80;  84  Pac.  443. 

Nature  of  proceeding.  The  procedure 
contemplated  by  this  section  is  neither  an 
"action"  nor  a  "special  proceeding  of  a 
civil  nature":  it  is  a  mere  subsequent  step 
in  an  action  or  special  proceeding  already 
commenced,  and  there  is  no  limitation  as 
to  time.  Doehla  v.  Phillips,  151  Cal.  4S8; 
91  Pac.  .130;  Brcdfield  v.  Haunon,  151  Cal. 
497;  91  Pac.  334. 

Constitutionality.  This  section,  so  far 
as  it  may  be  construed  to  permit  an  order 
to  be  made  for  the  issuance  of  an  execu- 
tion upon  motion  without  notice  to  the 
defendants,  is  constitutional;  the  legisla- 
ture, undoubtedly,  has  power  to  provide 
that  an  execution  may  issue  on  a  judgment 
at  any  time  after  its  entry  or  rendition. 
Harrier  v.  Bassford,  145  Cal.  529;  78  Pac. 
1038;  Doehla  v.  Phillips,  151  Cal.  488;  91 
Pac.  330;  Bredfield  v.  Hannon,  151  Cal. 
497;  91  Pac.  334. 

Necessity  for  notice  of  application  for 
execution.  No  notice  to  the  opposite 
party  is  required  on  an  application  for 
execution  on  a  judgment  more  than  five 
years  old.  Brvan  v.  Stidger,  17  Cal.  270; 
Doehla  v.  Phillips,  151  Cal.  488;  91  Pac. 
330;  Bredfield  v.  Hannon,  151  Cal.  497;  91 
Pac.  334.  Notice  of  application  for  leave 
to  issue  an  execution  need  be  given,  only 
where  there  is  some  statute  expressly  pre- 
scribing it;  nor  is  service  of  notice  of  the 
time  and  place  of  making  the  motion  for 
leave  to  issue  the  execution  required. 
Harrier  v.  Bassford,  145  Cal.  529;  78  Pac. 
1038.  Previous  notice  of  application  un- 
der this  section  is  unnecessary  (Doehla  v. 
Phillips,  151  Cal.  488;  91  Pac.  330;  Water 
Supply  Co.  v.  Sarnow,  6  Cal.  App.  586;  92 
Pac.  667),  though  the  contrary  was  held 
in  National  Bank  v.  Los  Angeles  Iron  etc. 
Co.,  2  Cal.  App.  659;  84  Pac.  466. 

Motion  to  set  aside  execution.  On  a 
motion  by  a  judgment  debtor  to  set  aside 
an  order  for  execution  made  under  this  sec- 
tion, it  is  not  error  to  permit  the  judgment 
creditor  to  file  a  counter-affidavit  without 
previous  notice  or  service  upon  the  judg- 
ment debtor.  Bredfield  v.  Hannon,  151 
Cal.  497;  91  Pac.  334. 

Showing  necessary  on  application  for 
execution.  The  loss  of  a  judgment  lien, 
because  of  the  lapse  of  five  years  from  the 
date  of  the  judgment,  does  not  i)reclude 
the  issuance  of  execution  after  the  lapse 
of  five  years  upon  a  showing  by  affidavits. 
Water  Supply  Co.  v.  Sarnow,  6  Cal.  App. 
586;  92  Pac.  667.  Before  the  order  allow- 
ing an  execution  to  issue  can  he  regularly 
entered,  it  is  necessary  to  make  it  appear 


to  the  satisfaction  of  the  court  that  some 
portion  of  the  judgment  remains  unsatis- 
fied.   Solomon  v."  Maguire,  29  Cal.  227. 

Alias  execution.  The  issuance  and  levy 
of  a  second  execution  does  not  waive 
rights  acquired  by  the  first  levy,  if  that 
was  complete  and  regular.  Water  Supply 
Co.  V.  Sarnow,  6  Cal.  App.  586;  92  Pac. 
667;  Weldon  v.  Rogers,  157  Cal.  410;  108 
Pac.  266. 

Discretion  of  court.  It  is  within  the 
discretion  of  the  court  to  grant  or  deny  a 
motion  for  leave  to  issue  an  execution  upon 
a  judgment  after  the  lapse  of  five  years 
from  the  date  of  its  entry;  and  its  order 
denying  the  motion  will  not  be  disturbed 
ui)ou  appeal,  where  no  abuse  of  discretion 
appears.  Wheeler  v.  Eldred,  137  Cal.  37; 
69  Pac.  619;  121  Cal.  28;  66  Am.  St.  Rep. 
20;  53  Pac.  431.  The  court  does  not  abuse 
its  discretion  in  ordering  execution  to  bo 
issued  on  a  money  judgment,  fourteen 
years  after  its  entry,  where  nothing  ap- 
pears why,  in  equity  and  good  conscience, 
the  judgment  debtor  should  not  be  com- 
pelled to  pav  it.  Doehla  v.  Phillips,  151 
Cal.  488;  91  Pac.  330.  The  court's  discre- 
tion, under  this  section,  must  be  guided 
by  the  circumstances  arising  after  the 
entrv  of  judgment.  Weldon  v.  Rogers,  159 
Cal.  700;  115  Pac.  464. 

Jurisdiction  of  court.  Under  this  sec- 
tion, the  power  of  the  court  is  limited  to 
giving  leave  that  the  former  judgment  be 
carried  into  execution:  there  is  no  power 
to  direct  the  payment  of  money,  and  a 
direction  that  the  execution  be  for  a 
named  amount  is  useless  and  void.  Weldon 
V.  Rogers,  154  Cal.  632;  98  Pac.  1070.  The 
time  within  which  the  court  may  act  in 
authorizing  the  issuance  of  an  execution 
upon  a  judgment,  after  the  lapse  of  five 
years  from  its  entry,  is  without  limitation. 
Doehla  v.  Phillips,  151  Cal.  488;  91  Pac. 
330.  Where  a  valid  order,  made  after 
final  judgment,  requires  a  husband,  in  an 
action  of  divorce,  to  pay  a  sum  of  money 
for  the  support  of  children,  the  court  has 
power,  at  any  time  after  the  entry  of  the 
order,  to  direct  execution  to  issue  for  the 
amount  unpaid.  Harlan  v.  Harlan,  154 
Cal.  341;  98  Pac.  32.  Execution  may  issue 
on  a  judgment  duly  rendered,  although  it 
has  not  been  entered.  Baum  v.  Roper,  1 
Cal.  App.  435;  82  Pac.  390.  The  fact  that 
the  court  has  made  an  order  for  the  issu- 
ance of  an  execution,  under  which  the 
judgment  has  been  partially  satisfied,  does 
not  deprive  it  of  jurisdiction  to  make  a 
subsequent  order  for  execution  for  the  de- 
ficiency (Weldon  v.  Rogers,  159  Cal.  700; 
115  Pac.  464);  nor  does  the  fact  that  an 
attachment  had  once  issued,  the  lien  of 
which  has  ceased,  preclude  the  court  from 
ordering  execution,  upon  a  proper  showing 
made  bv  affidavits.  Water  Supply  Co.  v. 
Sarnow*  6  Cal.  App.  586;  92  Pac.  667. 

Effect  of  order  for  execution.  An  order 
for  an   execution   on   a  judgment   amounts 


§686 


EXECUTION. 


804 


to  an  order  for  its  enforcement.  Water 
Supply  Co.  V.  Sarnow,  1  Cal.  App.  479;  82 
Pac.  6S9. 

Execution  in  foreclosure  suits.  A  judg- 
ment of  foreclosure  is  not  barred  by  limi- 
tation until  the  period  of  five  years  and 
six  months  has  elapsed  after  its  entry: 
five  years  being  the  time  provided  in  the 
statute  of  limitations,  and  six  months  the 
time  in  which  an  appeal  may  be  taken; 
hence,  an  execution  issued  within  this 
period  is  valid.  Harrier  v.  Bassford,  145 
Cal.  529;  78  Pac.  1038.  An  execution  for 
the  sale  of  mortgaged  premises  cannot 
issue  after  five  years  from  the  date  of  the 
rendition  of  judgment  of  foreclosure,  even 
though  a  judgment  for  deficiency  was  ex- 
pressly waived  by  stipulation  of  the  par- 
ties. .Jacks  V.  Johnston,  86  Cal.  384;  21 
Am.  St.  Eep.  50;  24  Pac.  1057  (decision 
before  the  amendment  of  this  section  in 
1895);  and  see  Borland  v.  Hanson,  81  Cal. 
202;  15  Am.  St.  Rep.  44;  22  Pac.  552. 

Revival  of  money  judgments.  A  judg- 
ment for  the  recovery  of  money,  previous 
to  the  amendment  of  this  section  iu  1895, 
could  not  be  enforced  by  execution  after 
the  lapse  of  five  years  from  the  entry 
thereof.  Cortez  v.  Superior  Court,  86  Cal. 
274;  21  Am.  St.  Eep.  37;  24  Pac.  1011;  and 
see  Borland  v.  Hanson,  81  Cal.  202;  15 
Am.  St.  Eep.  44;  22  Pac.  552.  The  amend- 
ment to  this  section  in  1895,  which,  in 
effect,  allowed  a  judgment  for  the  re- 
covery of  money  to  be  enforced  after  five 
years  from  the  date  of  its  entry,  applied 
to  all  such  judgments  which  had  not  been 

§  686.  When  execution  may  issue  against  the  property  of  a  party  after 
his  death.  Notwithstanding  the  death  of  a  party  after  the  judgment,  exe- 
cution thereon  may  be  issued,  or  it  may  be  enforced,  as  follows: 

1.  In  case  of  the  death  of  the  judgment  creditor,  upon  the  application 
of  his  executor  or  administrator,  or  successor  in  interest; 

2.  In  case  of  the  death  of  the  judgment  debtor,  if  the  judgment  be  for 
the  recovery  of  real  or  personal  property,  or  the  enforcement  of  a  lien 
thereon. 


barred.  Weldon  v.  Rogers,  151  Cal.  432; 
90  Pac.  1062;  Boehla  v.  Phillips,  151  Cal. 
488;  91  Pac.  330;  Bredfield  v.  Hannon,  151 
Cal.  497;  91  Pac.  334.  The  limiting  clause 
of  this  section,  to  the  effect  that  it  is  not 
to  be  construed  to  revive  a  judgment  for 
the  recovery  of  money,  is  not  applicable 
to  a  case  in  which  the  judgment  was  ren- 
dered after  the  enactment  of  the  section 
as  amended,  and  where  it  could  not  have 
been  barred  by  limitation  at  the  time  of 
the  passage  of  the  amendment.  Harrier  v. 
Bassford,  145  Cal.  529;  78  Pac.  1038.  Old 
judgments,  long  since  defunct,  cannot  be 
revived  by  an  amendment  to  the  section, 
the  remedy  on  which  had  already  been 
barred  by  the  lapse  of  time.  Mann  v,  Mc- 
Atee,  37  Cal.  11. 

Suspension  of  statute  of  limitations.  An 
order  staying  proceedings  does  not  operate 
to  suspend  the  running  of  the  statute,  un- 
der this  section.  Cortez  v.  Superior  Court, 
86  Cal.  274;  21  Am.  St.  Rep.  37;  24  Pac. 
1011. 

CODE  COMMISSIONERS'  NOTE.  Before  April 
8,  1861,  execution  could  be  taken  out  on  judg- 
ment at  any  time  within  five  yeai"3  after  the 
rendition  of  the  judgment,  and  also  after  that 
time,  upon  leave  of  the  court.  Between  April  8, 
1861,  and  April  2,  1866,  it  could  only  be  taken 
out  within  the  five  years  after  judgment  ren- 
dered. Since  April,  1866,  however,  aa  execution, 
in  all  cases,  except  for  the  recovery  of  money, 
may  issue  after  five  years,  upon  order  of  the 
court.  Mann  v.  McAtee,  37  Cal.  11.  The  time 
during  which  plaintiff  is  stayed  from  issuing  exe- 
cution constitutes  a  part  of  the  five  years  within 
which  execution  must  issue,  and  after  that  time 
has  elapsed,  it  must  then  be  upon  order  of  the 
court.    Solomon  v.  Maguire,  29  Cal.  237. 


Death  of  party. 

1.  Effect  of,  on  action.     Ante,  §  385. 

2.  Judgment  after.    Ante,  §  669. 

3.  Execution  after.     Post,  §  1505. 

Legislation  §  686.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  215,  as  amended  by 
Stats.  1863-64,  p.  452,  which  read:  "Xotwith- 
standing  the  death  of  a  party  after  the  judg- 
ment, execution  thereon  may  be  issued,  in  case 
of  the  death  of  the  plaintiff,  the  same  as  if  he 
were  living,  upon  the  application  of  his  executor, 
or  administrator,  or  successor  in  interest,  by  the 
court  in  which  the  judgment  was  rendered  or 
exists.  And  in  case  of  the  decease  of  the  de- 
fendant, if  the  judgment  be  for  the  recovery  of 
real  or  personal  property,  execution  may  be  is- 
sued and  executed  against  the  property  recovered 
in  the  same  manner  and  with  the  same  effect  as 
if  he  were  atill  living." 

Execution  after  death  of  debtor.  Exe- 
cution against  the  property  of  the  judg- 
ment debtor,  who  died  after  judgment, 
might  be  issued,  under  the  Practice   Act, 


upon  the  permission  of  the  probate  court; 
but  in  a  case  where  the  judgment  was  in 
force  when  the  amendment  of  1864  went 
into  effect,  authority  was  given  to  issue 
such  execution  only  in  case  of  judgment 
for  the  recovery  of  real  or  personal  prop- 
erty. Myers  v.  Mott,  29  Cal.  359;  87  Am. 
Bee.  49;  and  see  Bank  of  Stockton  v. 
Howland,  42  Cal.  129;  Holladay  v.  Hare, 
69  Cal.  517;  11  Pac.  28;  Briggs  v.  Breen, 
123  Cal.  657;  56  Pac  633. 

"Application"  and  "motion"  compared. 
This  section  affords  a  simi:)le  and  summary 
mode  of  enforcing  a  judgment  by  execu- 
tion, without  resorting  to  a  civil  action 
thereon;  and  the  word  "motion,"  in  §  685, 
ante,  is  really  the  same  as  the  word 
"application,"  in  this  section.  Weldon  v. 
Rogers,  151  Cal.  432;  90  Pac.  1062. 


805  ISSUE,   ETC.,  OF  EXECUTION — WHAT  LIABLE  TO  SEIZURE.       §§  687,  688 

§687.  Execution,  how  and  to  whom  issued.  Where  the  execution  is 
against  the  property  of  the  judgment  debtor,  it  may  be  issued  to  the  sheriff 
of  any  county  in  the  state.  Where  it  recpiires  the  delivery  of  real  or  per- 
sonal property,  it  must  be  issued  to  the  sheriff  of  the  county  where  the 
property,  or  some  part  thereof,  is  situated.  If  the  judgment  directs  or 
authorizes  the  issuing  of  any  process  retiuiring  the  sale,  or  the  delivery 
of  possession  of,  or  otherwise  affecting  specific  real  property,  which  is  then, 
or  subsequently  becomes,  a  part  of  a  county  other  than  that  in  which  such 
judgment  was  entered,  such  process  may  be  issued  to,  and  executed  by,  the 
sheriff  of  such  other  county,  as  to  the  property  situate  therein.  Execu- 
tions may  be  issued  at  the  same  time  to  different  counties. 

Any  county  in  state,  process  extends  to.    Ante,  Execution   directed  to  whom.     Tlie  fact 

^   Execution  requiring  delivery  of  real  and  per-  ^^^^    ^^^'\   cxe.utioii    under    which   the    sale 

Bonal  property.    Ante,  §  (is'j,  subd.  5.  was  miulc  was  directed   to  a  constable  of 

Legislation  S  687.    1.  Enacted  March  11,  1873;  the  township,  and  that  the  return   thcreol' 

based  on  Practice  Act,  §216,  which  had  the  word  shows   that   it   was   received   and   executed 

"shall"    instead    of    "must,"    in    second    sentence;  v,,  fVio  t-li/ii-ifF  nf  +k«  ,.„„„4-„    ;„    „i  -„      i. 

otherwise   the    section   read   the    same   us   at   pres-  .^^^  ^'^^^  ^'1^"^  "V  ,     ^0"°<^>'  ^^>  ^t  most,  an 

ent,  except  for  the  addition  of  1907.  irregularity,   and   does  not  render  the  ser- 

2.  Amendment  by  Stats.  1901,  p.  153 ;  un-  vice  void,  nor  make  the  execution  and 
ccnstifutional.     See   note   ante.  §  5.  return    inndmi<3C!ihl<i    in    ov\i}onno-    tlio    a^a 

3.  Amended  bv  Stats.  1907,  p.  683,  adding  return  inacimissiDie  in  evidence,  the  exe- 
the  sentence  beginning  "If  the  judgment"  and  CUtlon  may  be  directed  to  the  sheriff  or 
ending  "situate  therein";  the  code  commissioner  any  constable  ill  the  County,  and  each 
ra^^s^in'^lhlch^TtrdSen?  if "-Inle^ed^^in^'o",^^  f ffi'^er  is  vested  with  full  power  to  serve 
county  affecting  property  then  situated  in,  or  the  writ,  and  it  IS  an  indifferent  matter  to 
which  may  subsequently  become  a  part  of,  an-  whom  it  is  issued.  Ross  V.  Wellman,  102 
other    county.      The    section    as    amended    super-  pi    ■.  .  oa  p„„    Ann 

sedes    the   provisions    of    the    statute    of    1873-74,        ^".i.  i ,  oo  ir<n..  tKJ^. 
p.   365,  respecting  execution  of  final  process." 

§  688.  What  liable  to  be  seized  on  execution.  Property  not  affected 
until  levy  made.  All  goods,  chattels,  moneys,  and  other  property,  both 
real  and  personal,  or  any  interest  therein,  of  the  judgment  debtor,  not 
exempt  by  law,  and  all  property  and  rights  of  property  seized  and  held 
under  attachment  in  the  action,  are  liable  to  execution.  Shares  and  in- 
terests in  any  corporation  or  company,  and  debts  and  credits,  and  all  other 
property,  both  real  and  personal,  or  any  interest  in  either  real  or  personal 
property,  and  all  other  property  not  capable  of  manual  delivery,  may  be 
levied  upon  or  released  from  levy  in  like  manner  as  like  property  may  be 
attached  or  released  from  attachment.  Gold-dust  must  be  returned  by  the 
officer  as  so  [much]  money  collected  at  its  current  value,  without  exposing 
the  same  to  sale.     Until  a  levy,  property  is  not  affected  by  the  execution. 

Co-operative  business   association,   property  of,  3.   Amendment    by    Stats.    1901,    p.  153;    un- 

subject  to  execution.    See   Civ.   Code,  §  653f.  constitution.il.     See   note   ante,  §  5. 

Building    material,    not    subject    to    execution  3.  Amended   by   Stats.    1907,    p.  683,    in    sen- 

When.     See  post,  §  1196.  fence    beginning    "Shares,"     changing,     after    the 

Good-will.     Civ.  Code,  §§  992,  993.  words    "may    be,"    that    part    of    the    sentence    to 

Franchise.    Civ.  Code,  §"§  992,  993.  ^^^^    ^^    (1'    present,    the    original    being    printed 

Homestead.     See  Civ.  Code,  §§  1241-1261.  ^"P'"'*,'      '^     code     commissioner     saying,      "The 

Sole  traders.    See  post,  §§  1811-1821.  ?Wi"^'",f"l  *!?"'"/'    "V  ^"l^^<''ut'"e  ,  '.^e    words 

T  Pvv       \    tP    S  '\i'>  levied  upon   or  released    for  the   word    attached," 

iiEvy.     j\iiu,  S  34-.         ....                 ..           o  thus  providing  a  mode  of  releasing  a  lew  of  exe- 

Estates   at  wUl  not  subject  to  execution.     See  ^ution.      It    adopts    the   method   proposed   for   the 

Civ.   Code,  §   /6o.  release   of    attachments  by  §  560."      The  bracketed 

Exemptions,  generally.    Post,  §  690.  word   "[much],"  in  the  present  sectio'.>,  was  cor- 

Legislation  §  688.    1.  Enacted  March  11,  1873;  '"^''''y  "««^  '"  ^^^'  origi"*'  code  section 

cff^    io«<F''*''''r|o^^Vr-^I'«J'cf   a^iended   by  Property   liable  to   seizure,   In   general. 

Stats.     1862,     p.  568.      \\  hen  ij  6S8     was     enacted  _,  '^  .      "f    ,  ,,  ^i  ■,■  r   j.i. 

in  1872,    (1)  in  first  sentence,  the  words  "shall  The  principle  as  well  as  the  policy  of  the 

be,"  before  "liable,"  were  changed  to  "are,"    (2)  law  is  to  subject  every  species  of  projiertv 
in    the    sentence    beginning    "Shares,"    the    word  f         iudoment    debtor    to    the    pavment    of 

the      was   omitted   before      like,      in    the    follow-  ,  .        ,    ,  ,  ,  .  j.  i.       • 
ing   clause    (which    was   amended   in    1907),    "may  his    debts,    and    no    species    of    property    IS 
be  attached  on   execution   in   like  manner  as  upon  exempt,    except    such    as    is    especially    ex- 
writs  of  attachment.s,"   (3)   "sh.-iir-  was  changed  empted  by  law.    Pacific  Bank  V.  Robinson, 

to      must      after      Gold-dust,      and    (4)       .shall   not         „_  '       ,        •'  .r.     a  r>  ion         a     l^i-ir    nf 

be"   was   changed  to  "is  not,"   before  "affected."        0/    Cal.   520;   40   Am,   Rep.   UO.      A   le\  y   Ot 


§688 


EXECUTION. 


806 


execution  on  a  homestead  is  ineffective. 
Hohn  V.  Pauly,  11  Cal.  App.  724;  106  Pac. 
266. 

Keal  property.  -Where  the  judgment 
does  not  specify  the  property  to  be  taken, 
none  of  the  property  of  the  defendant  is 
affected  thereby,  nor  charged  with  the  lien 
of  the  judgment,  until  it  is  taken  by  the 
sheriff  under  the  writ.  Southern  California 
Lumber  Co.  v.  Ocean  Beach  Hotel  Co.,  9i 
Cal.  217;  28  Am.  St.  Eep.  115;  29  Pac.  627. 
Where  the  judgment  is  not  a  lien,  the 
property  is  not  taken  on  execution  until 
there  is  a  levy,  and  the  lien  does  not  begin 
until  then.  Lean  v.  Givens,  146  Cal.  739; 
106  Am.  St.  Eep.  79;  81  Pac.  128;  and  see 
Summerville  v.  Stockton  Milling  Co.,  142 
Cal.  529;  76  Pac.  243.  When  valid,  the 
judgment  becomes  a  lien  on  the  property 
when  it  is  docketed,  and  it  is  immaterial 
whether  it  is  called  a  vendor's  lien  or  a 
judgment  lien.  Tilley  v.  Bonney,  123  Cal. 
118;  55  Pac.  798.  Where  the  judgment  is 
a  lien  on  the  land,  there  is  no  real  neces- 
sity for  a  formal  levy:  it  adds  nothing  to 
the  effect  of  the  sale  on  execution.  Lean 
V.  Givens.  146  Cal.  739;  106  Am.  St.  Eep. 
79;  81  Pac.  128;  Bagley  v.  Ward,  37  Cal. 
121;  99  Am.  Dec.  256;  and  see  Lehnhardt 
V.  Jennings,  119  Cal.  192;  48  Pac.  56;  51 
Pac.  195.  The  levy  of  an  execution  is 
made  in  the  same  manner  as  upon  an  at- 
tachment, that  is,  by  filing  with  the  county 
recorder  a  copy  of  the  writ,  with  a  notice 
that  the  land  described  therein  is  at- 
tached, and  serving  a  similar  notice  on  the 
occupant.  Lean  v.  Givens,  146  Cal.  739; 
106  Am.  St.  Eep.  79;  81  Pac.  128.  Al- 
though a  levy  of  execution  is  unnecessary 
to  give  effect  to  a  judgment  lien,  yet  that 
course  is  usually  pursued;  but  this  does 
not  extend  the  lien  of  the  judgment,  nor 
does  it  create  a  new  lien  upon  the  prop- 
erty. Bagley  v.  Ward,  37  Cal.  121,  99  Am. 
Dec.  256.  The  rule  at  common  law  is  in 
force  in  this  state,  except  as  modified  by 
statute  or  the  constitution;  and  it  has 
been  so  far  modified  by  the  code,  that  the 
only  means  of  enforcing  a  judgment  for 
money  is  by  a  writ  of  execution,  and  that 
land  may  be  taken  on  the  execution,  as 
well  as  personal  propertv.  Lean  v.  Givens, 
146  Cal.  739;  106  Am.  St.  Eep.  79;  81  Pac. 
128. 

Interests  in  real  property.  Land  liable 
to  execution  embraces  all  titles,  legal  or 
equitable,  perfect  or  imperfect,  including 
such  rights  as  lie  in  contract,  those  execu- 
tory as  well  as  those  executed;  therefore 
any  interest  in  land,  legal  or  equitable,  is 
subject  to  attachment  or  execution,  levy, 
and  sale.  Fish  v.  Fowlie,  58  Cal.  373;  and 
see  Leese  v.  Clark,  20  Cal.  387;  Kennedy 
v.  Nunan.  52  Cal.  326;  Le  Eoy  v.  Dun- 
kerly,  54  Cal.  452;  Godfrey  v.  Monroe,  101 
Cal.  224;  35  Pac.  761.  The  purchase,  un- 
der an  execution  sale,  of  the  interest  of 
the  city  of  San  Francisco  in  beach  and 
water    lots,    and    the    sheriff's    deed    made 


thereunder,  operated  as  an  assignment  of 
the  equitable  estate  remaining  in  the  city 
after  the  legal  title  vested  in  the  com- 
missioners of  the  funded  debt  under  the 
act  of  May  1,  1851,  subject  to  certain 
trusts  in  favor  of  the  city  and  its  credi- 
tors. Le  Eoy  v.  Dunkerly,  54  Cal.  452; 
Kennedy  v.  Nunan,  52  Cal.  326;  and  see 
Holladay  v.  Frisbie,  15  Cal.  631;  Wheeler 
v.  Miller,  16  Cal.  124.  The  title  acquired 
by  a  pre-emption  settler  on  public  land, 
after  a  sale  thereof  under  execution,  does 
not  pass  by  such  sale,  nor  is  it  affected 
thereby.  Eupert  v.  Jones,  119  Cal.  Ill;  51 
Pac.  26. 

Personal  property.  A  promissory  note 
and  mortgage,  of  which  the  sheriff  can 
obtain  peaceable  possession,  is  personal 
property  capable  of  manual  delivery,  and 
is  subject  to  seizure  and  sale  under  exe- 
cution. Hoxie  v.  Bryant,  131  Cal.  85;  63 
Pac.  153;  and  see  Davis  v.  Mitchell,  34 
Cal.  81;  Donohoe  v.  Gamble,  38  Cal.  352; 
99  Am.  Dec.  399.  The  exemption  from 
execution  of  the  franchise  of  a  street-rail- 
way corporation  does  not  extend  to  or  in- 
clude its  personal  property,  such  as  cars, 
trucks,  electrical  goods  and  supplies,  fire- 
proof safes,  etc.,  used  in  the  business  of 
operating  its  line:  such  property  is  subject 
to  attachment  or  execution  in  like  manner 
as  other  property  not  exempt  by  statute. 
Eisdon  Iron  etc.  Works  v.  Citizens'  Trac- 
tion Co.,  122  Cal.  94;  68  Am.  St.  Eep.  25; 
54  Pac.  529;  and  see  Lathrop  v.  Middle- 
ton,  23  Cal.  257;  83  Am.  Dec.  112;  Hum- 
phreys v.  Hopkins,  81  Cal.  551;  15  Am. 
St.  Eep.  76;  6  L.  E.  A.  792;  22  Pac.  892; 
Gregorv  v.  Blanchard,  98  Cal.  311;  33  Pac. 
199. 

Interests  in  personal  property.  A  pled- 
gor's interest  may  be  reached  under  execu- 
tion, but  it  can  only  be  done  by  serving  a 
garnishment  on  the  pledgee,  and  not  by  a 
seizure  of  the  pledge.  Treadwell  v.  Davis, 
34  Cal.  601 ;  94  Am.  Dec.  770. 

Shares  in  corporations.  This  section  ex- 
pressly provides  that  shares  in  any  cor- 
poration may  be  attached  on  execution,  in 
like  manner  as  upon  writs  of  attachment; 
and  it  is  not  necessary  to  the  sale  of  the 
interest  of  the  judgment  debtor  in  the 
shares  that  they  shall  be  in  the  hands  of 
the  sheriff  to  be  personally  delivered  to 
the  purchaser.  West  Coast  Safetv  Faucet 
Co.  V.  Wulff,  133  Cal.  315;  85  Am."  St.  Eep. 
171;  65  Pac.  622.  The  sale  of  the  interest 
of  a  debtor  in  shares  of  corporate  stock 
passes  title  without  manual  possession  of 
the  certificate  by  the  sheriff  when  the  exe- 
cution is  served;  the  certificate  might  at 
the  time  be  in  the  hands  of  the  owner,  but 
the  levy  and  sale  would  entitle  the  pur- 
chaser to  have  a  certificate  issued  to  him, 
and  for  that  purpose  the  court  would,  upon 
appropriate  proceedings,  compel  the  sur- 
render of  the  original  certificate,  in  order 
that  it  might  be  reissued  to  the  pur- 
chaser.   West  Coast  Safety  Faucet  Co.  v. 


807 


WHAT  LIABLE  TO  SEIZURE — LIABILITY  OP  SHERIFF. 


§688 


Wulff,  133  C':i!.  315;  85  Am.  St.  Rep.  171; 
65  Pac.  G2'2.  'I'lie  purcliaser  at  aii  execution 
sale  of  shares  of  stock  of  a  corporation, 
standing  on  the  books  of  the  corjjoration 
in  the  name  of  the  judgment  debtor,  is 
entitled  to  have  the  certificate  of  such 
shares  reissued  to  him  as  such  purchaser, 
if,  at  the  time  of  such  i)urchase,  he  acts  in 
good  faith,  and  without  notice  that  the 
outstanding  certificate  has  been  assigned 
or  pledged  to  some  person  other  than 
the  judgment  debtor.  West  Coast  Safety 
Faucet  Co.  v.  WulflF,  133  Cal.  315;  85  Am. 
St.  Rep.  171;  65  Pac.  622.  The  shares  of 
stock  constitute  the  property  which  be- 
longs to  the  shareholiler  in  a  corporation; 
otherwise  the  property  would  be  in  the 
certificate;  but  the  certificate  is  only  evi- 
dence of  the  property,  and  it  is  not  the 
only  evidence,  for  a  transfer  on  the  books 
of  the  corporation,  without  the  issuance  of 
a  certificate,  vests  title  in  the  shareholder. 
Pavne  v.  Elliot,  54  Cal.  339;  35  Am.  Rep. 
80." 

Credits.  A  promissory  note  is  a  credit, 
within  the  meaning  of  the  statute,  and  is 
subject  to  sale  under  execution.  Davis  v. 
Mitchell,  3-4  Cal.  81.  The  delivery  of  an 
ordinary  check  upon  a  bank  for  part  of 
the  fund  standing  therein  to  the  credit  of 
the  drawer,  does  not,  prior  to  its  presen- 
tation, operate  as  an  assignment  of  the 
fund  pro  tanto,  and  a  garnishment  of 
the  fund  under  execution  as  belonging  to 
the  drawer  will  prevail  over  all  unpre- 
sented  and  unaccepted  cheeks  previously 
drawn  thereupon.  Donohoe-Kelly  Baixkiiig 
Co.  V.  Southern  Pacific  Co.,  138  Cal.  183; 
94  Am.  St.  Rep.  28;  71  Pac.  93. 

Judgments.  A  judgment  is  but  the  evi- 
dence of  a  debt,  and,  as  such,  is  not  sub- 
ject to  lew  or  sale  under  execution  (Dore 
V.  Dougherty,  "2  Cal.  232;  1  Am.  St.  Rep. 
48;  13  Pac.  621;  McBride  v.  Fallon,  65  Cal. 
301;  4  Pac.  17;  Hoxie  v.  Bryant,  131  Cal. 
85;  63  Pac.  1-33);  and  where  the  judgment, 
as  such,  is  sought  to  be  reached  by  execu- 
tion, it  can  only  be  reached  by  the  mode 
provided  for  reaching  debts  and  credits 
and  other  property  not  capable  of  manual 
delivery.  Latham  v.  Blake,  77  Cal.  646;  18 
Pac.  150.  The  holder  of  the  larger  judg- 
ment, in  cross-actions,  cannot  prevent  the 
holder  of  the  smaller  judgment  from  hav- 
ing such  smaller  judgment  set  off  pro 
tanto  against  the  larger,  and  the  holder  of 
the  smaller  judgment  cannot  prevent  the 
holder  of  the  larger  from  having  the 
smaller  so  set  off  and  then  have  execution 
issue  for  the  balance  due  on  the  larger; 
the  rights  of  the  parties,  in  this  respect, 
are  reciprocal;  and  neither  of  the  parties, 
by  assigning  his  judgment  to  a  third  party, 
can  defeat  the  right  of  the  other  to  have 
his  judgment  so  set  off:  the  assignee  would 
take  the  demand  cum  onere,  and  with  the 
right  of  set  off  still  clinging  to  it.  Mc- 
Bride V.  Fallon,  65  Cal.  301;  4  Pac.  17. 


Personal  property  not  capable  of  manual 
delivery.  The  interest  of  a  debtor  in  the 
shares  of  a  corporation  is  regarded,  under 
this  section,  as  j)ersonal  j)roperty  not  capa- 
ble of  manual  delivery.  West  Coast  Safety 
Faucet  Co.  v.  Wulff,  133  Cal.  315;  85  Am. 
St.  Rep.  171;  65  Pac.  622.  A  chose  in 
action,  whether  or  not  the  subject  of  levy, 
must,  when  the  pai)er  e\idencing  the  debt 
is  not  present  to  be  assigned  to  the  pur- 
chaser and  exhibited  to  the  bystanders,  at 
least  be  accomi)anied  by  a  full  and  ai.-cu- 
rate  description  of  the  particular  interest 
and  chose  of  action,  with  all  of  its  condi- 
tions and  covenants,  and  a  full  explana- 
tion of  the  facts  which  determine  the 
value  of  such  instrument  or  contract,  suffi- 
cient to  apprise  the  bystanders,  with  rea- 
sonable accuracy,  of  what  is  sold  or 
offered.    Crandall  v.  Blen,  13  Cal.  15. 

Patent  rights.  A  patent  right  is  not 
tangible  property,  but  is  an  incorporeal 
right,  being  a  personal  favor  or  monopoly 
granted  to  a  particular  person  by  the 
Federal  goveinment,  and  is  created  and 
regulated  by  Federal  legislation,  and  is  not 
subject  to  levy  or  sale  upon  execution;  and 
if  a  creditor  of  the  patentee  can  have  the 
patent  right  subjected  to  the  satisfaction 
of  his  judgment  at  all,  it  can  be  done  only 
by  a  court  of  equity  acting  in  personam, 
and  compelling  the  patentee  to  make  an 
assignment.  Peterson  v.  Sheriff,  115  Cal. 
211;  46  Pac.  1060. 

Broker's  seat  In  stock  exchange.  A 
broker's  seat  in  a  stock  and  exchange 
board  is  not  property  subject  to  execution 
and  sale.  Lowenberg  v.  Greenebaum,  99 
Cal.  1G2;  37  Am.  St.  Rep.  42;  21  L.  R.  A. 
399;  33  Pac.  794. 

Effect  of  execution  sale.  A  sale  and 
conveyance  under  execution  will  pass  all 
the  interest  held  by  the  judgment  debtor 
at  the  time  of  the  levy;  and  the  judgment 
need  not  have  been  docketed  at  the  time 
of  the  issuance  of  the  execution.  Hastings 
V.  Cunningham,  39  Cal.  137. 

Liability  of  sheriff.  The  sheriff  is  a 
trespasser,  and  liable  for  the  value  of 
goods  seized  under  execution,  where  such 
goods  are  in  the  hands  of  the  pledgee,  and 
where  he  fails  to  levy  thereon  by  garnish- 
ment instead  of  by  seizure  of  the  pledge. 
Treadwell  v.  Davis,  34  Cal.  601;  94  Am. 
Dec.  770.  An  oiKcer,  who  would  justify 
the  taking  of  property  from  a  stranger  to 
the  writ,  or  who  would  assail  the  transfer 
as  fraudulent  and  void  as  to  creditors, 
must  prove  not  only  the  execution,  the 
levy,  and  that  he  was  a  creditor,  but  also 
the  rendition  of  a  judgment  upon  his  debt, 
and  that  the  execution  was  issued  upon 
the  judgment.  Darville  v.  Mayhall,  128 
Cal.  617;  61  Pac.  276;  and  see  Thornburgh 
v.  Hand,  7  Cal.  554;  Paige  v.  O'Xeal,  12 
Cal.  483;  Bickerstaff  v.  Doub,  19  Cal.  109; 
79  Am.  Dec.  204;   Leszinsky  v.   White,  45 


§688 


EXECUTION. 


808 


Cal.  279;  Kane  v,  Desmond,  63  Cal.  464. 
Justification  is  not  made  out  by  the  offi- 
cer, where  the  bill  of  exceptions  shows 
that  it  was  admitted  that  the  property 
was  seized  by  virtue  of  an  execution  is- 
sued out  of  a  justice's  court,  where  no  in- 
debtedness or  judgment  is  shown.  Darville 
V.  Mayhall,  128  Cal.  617;  61  Pac.  276. 

Nature,  purpose,  and  effect  of  execution 
lien.  The  common-law  rule  was,  that  an 
execution  was  a  lien  on  personal  property 
from  the  time  of  its  issuance,  although 
there  was  no  levy;  but  neither  a  judg- 
ment nor  an  execution  was  a  lien  on  land, 
and  the  method  of  applying  the  land  of 
the  judgment  debtor  to  satisfy  a  judg- 
ment was  by  means  of  a  writ  of  elegit, 
whereby  the  officer,  after  exhausting  the 
personal  property,  could  seize  the  land  and 
apply  the  rents  and  profits  of  half  thereof 
upon  the  writ.  Lean  v.  Givens,  146  Cal. 
739;  106  Am.  St.  Rep.  79;  81  Pac.  128. 
The  purpose  of  a  lien  is  to  cut  off  the 
rights  of  third  persons,  which  might  other- 
wise accrue  between  the  time  of  levy  and 
the  time  of  sale;  and  the  filing  of  the 
notice  in  the  office  of  the  recorder  is  for 
no  other  purpose  than  to  give  notice  to 
third  persons  of  the  prior  charge.  Lean  v. 
Givens,  146  Cal.  739;  106  Am.  St.  Rep.  79; 
81  Pac.  128.  The  purpose  of  attaching 
under  the  writ  of  execution,  as  permitted 
by  this  section,  is  to  obtain  security  for 
the  satisfaction  of  a  judgment  previously 
recovered;  but  when  such  judgment  is 
already  a  lien,  the  main  object  of  an  at- 
tachment has  been  accomplished.  Lehn- 
hardt  v.  Jennings,  119  Cal.  192;  48  Pac. 
56;  51  Pac.  195.  The  levy  of  an  execu- 
tion, pending  a  judgment  lien,  neither  ex- 
tends the  existing  lien  nor  creates  a  new 
lien;  and  the  sales  under  the  execution 
take  effect,  by  relation,  at  the  time  they 
are  respectively  levied,  and  not  at  the 
date  of  the  levying  of  previous  executions. 
Bagley  v.  Ward,  37  Cal.  121;  99  Am.  Dec. 
256.  The  lien  of  the  execution  is  not  that 
of  the  judgment:  the  execution  neither 
creates  a  judgment  lien  nor  extends  a 
judgment  lien  once  created.  Beaton  v. 
Eeid,  111  Cal.  484;  44  Pac.  167;  and  see 
Baglev  V.  Ward,  37  Cal.  121;  99  Am.  Dee. 
256;  Rogers  v.  Druffel,  46  Cal.  654;  Eby 
V.  Foster,  61  Cal.  282.  The  service  of  a 
copy  of  the  execution  and  notice  of  gar- 
nishment upon  a  third  party,  constitutes 
no  lien  on  the  property  of  the  debtor  in 
his  hands,  capable  of  manual  delivery. 
Johnson  v.  Gorham,  6  Cal.  195;  65  Am. 
Dec.  501.  The  execution  affects  property, 
only  from  the  time  of  the  lew.  Johnson 
V.  Gorham,  6  Cal.  196;  65  Am'.  Dec.  501; 
Nordstrom  v.  Corona  City  Water  Co.,  155 
Cal.  206;  132  Am.  St.  Rep.  81;  100  Pac.  242. 
Relation  between  attachment  lien  and 
execution  lien.  The  lien  of  the  attach- 
ment and  the  lien  of  the  execution  sub- 
eerve  a  like  purpose;   the  former  to  hold 


the  property  until  judgment,  and  the  latter 
until  sale.  Beaton  v.  Reid,  111  Cal.  484; 
44  Pac.  167.  A  judgment  does  not  oper- 
ate so  as  to  release  or  obliterate  an  at- 
tachment lien:  the  property  attached  is 
still,  in  contemplation  of  law,  in  the  hands 
of  the  officer,  subject  to  the  judgment,  and 
the  attachment  lien  still  exists  so  as  to 
confer  a  priority  in  the  lien  of  the  judg- 
ment. Porter  v.  Pico,  55  Cal.  165;  and 
see  Anderson  v.  Goff,  72  Cal.  65;  1  Am. 
St.  Rep.  34;  13  Pac.  73.  Where  a  judg- 
ment creditor,  after  a  garnishment  upon 
execution,  proceeds  by  supplementary  pro- 
ceedings or  creditor's  bill  to  collect  the 
debt,  any  judgment  recovered  by  him  re- 
lates back  to  the  levy  of  the  garnishment, 
and  intervening  rights  are  cut  off.  Nord- 
strom V.  Corona  City  Water  Co.,  155  Cal. 
206;  132  Am.  St.  Rep.  SI;  100  Pac.  242. 
The  lien  of  the  attachment  is  merged  in 
that  of  the  judgment,  when  the  judg- 
ment is  rendered  in  the  attachment  suit 
and  becomes  a  lien  upon  the  property 
attached.  Bagley  v.  Ward,  37  Cal.  121; 
99  Am.  Dec.  256;  and  see  Anderson  v. 
Goff,  72  Cal.  65;  1  Am.  St.  Rep.  34;  13 
Pac.  73.  The  garnishee  is  entitled  to  plead 
a  set-off,  but  it  must  be  one  which  existed 
at  the  time  of  the  garnishment.  Nord- 
strom V.  Corona  City  Water  Co.,  155  Cal. 
206;  132  Am.  St.  Rep.  81;  100  Pac.  242. 
An  order  of  sale  by  the  court  is  not 
necessary  to  authorize  the  sheriff  to  sell 
the  attached  property,  and  the  lien  of 
the  attachment  is  not  lost  by  taking  a 
simple  money  judgment,  without  embody- 
ing therein  directions  for  the  sale  of  the 
attached  property.  Anderson  v.  Goff,  72 
Cal.  65;  1  Am.  St.  Rep.  34;  13  Pac.  73; 
and  see  Low  v.  Henry,  9  Cal.  538. 

Ejectment  by  purchaser  at  execution 
sale.  In  an  action  of  ejectment  to  recover 
lands  purchased  at  a  sale  under  an  exe- 
cution issued  upon  a  judgment  against 
the  defendant,  and  of  which  he  was  in  pos- 
session at  the  time  of  the  sale  or  at  the 
date  of  the  lien  of  the  judgment  or  at- 
tachment, the  defendant  cannot,  by  show- 
ing that  he  had  no  title  to  the  land,  or 
that  the  true  title  is  outstanding,  defeat 
the  plaintiff's  right  to  recover.  Robinson 
V.  Thornton,  102  Cal.  675;  34  Pac.  120; 
and  see  McDonald  v.  Badger,  23  Cal.  393; 
83  Am.  Dec.  123;  Blood  v.  Light,  38  Cal. 
649;  99  Am.  Dec.  441.  As  against  the 
judgment  debtor,  the  production  of  the 
judgment,  execution,  and  sheriff's  deed  is 
prima  facie  evidence  of  the  plaintiff's  right 
to  recover  in  ejectment;  but  if  the  action 
is  against  a  stranger  to  the  judgment,  the 
plaintiff  must  also  show  that  the  judgment 
debtor  had  title  to  or  possession  of  the 
land  at  the  date  of  the  lien  or  of  the  sale; 
the  mere  possession  of  the  defendant,  in 
such  case,  will  then  be  deemed  to  have 
been  taken  subsequently  to  the  sale.  Rob- 
inson  V.   Thornton,   102   Cal.  675;   34   Pac. 


809 


WHAT  LIABLE  TO  SEIZURE. 


§6S« 


120.  The  same  rule  applies  to  the  vendee 
of  a  jiuljiiiioiit  debtor,  or  any  other  person 
coming  in  under  him,  suhsequently  to  the 
creation  of  the  lien,  and  who  has  no  other 
title  or  cdaim  to  the  land  than  that  which 
he  derived  from  the  judgment  debtor,  or 
whose  title  is  in  elfect  the  same  as  that 
which  was  soUl  under  execution.  Robin- 
son V.  Thornton,  102  Cal.  67");  34  Pac.  120. 
Equitable  assignment  of  debt.  An  order 
upon  a  debtor  by  his  creditor,  to  pay 
money  to  a  third  party,  operates  as  an 
equitable  assignment  of  the  debt.  Curtner 
V.  Lyndon,  12S  Cal.  35;  60  Pac.  462. 

When  equity  of  redemption  may  be  sold  under 
execution.    .See  note  11  Am.  Dec.   193. 

Franchises  not  subject  to  execution.  See  note 
15  Am.  IJi'C.  59o. 

Property  or  franchise  of  quasi-public  corpora- 
tion as  subject  to  sale  under  execution.  See  note 
5  Ann.  Cas.  512. 

Judicial  sale  of  corporate  franchise  or  property 
necessary  for  its  enjoyment.  See  note  20  L.  R.  A. 
737. 

Interest  of  heir  or  legatee  when  subject  to  exe- 
cution.   See  note  44  Am.  Dec.  338. 

Inchoate  interest  of  croppers  and  others,  when 
subject  to  execution.     See  note  51   Am.   Dec.  410. 

Crops  that  are  subject  to  execution  as  per- 
sonalty.    See   note   55  Am.   Dec.   1(31. 

Whether  money  in  officer's  hands  is  subject  to 
execution.    See  note  55  Am.   Dec.  2  64. 

Execution  against  property  in  nauds  of  re- 
ceiver. See  note  2  Am.  St.  Rep.  403-  71  Am. 
St.  Rep.  370. 

When  life  insurance  policies  subject  to  execu- 
tion.   See  note  88   Am.  Dec.  530. 

When  and  how  judgment  subject  to  execution. 
See  note  92  Am.  Dec.  415. 

Patent  rights,  when  and  how  subject  to  execu- 
tion.   See  note  40  Am.  Rep.   123. 

Trust  estates,  when  and  when  not  subject  to 
execution.    See  note  97  Am.  Dec.  303. 

Liability  of  interest  acquired  by  purchaser  at 
execution  sale  to  levy  and  sale  under  execution. 
See  note  8  Ann.  Cas.  475. 

Interest  of  lessee  as  subject  to  levy  under  exe- 
cution.   See  note  15  Ann.  Cas.  867. 

Execution  against  both  partners  for  debt  of  one 
partner.    See  note  46  L.  R.  A.  495. 

Effect  of  pledge  or  other  transfer  not  made  on 
books  of  company.    See  note  67  L.  R.  A.  656. 

Officer's  right  to  enter  house  for  purpose  of 
serving  execution.    See  note  25  Am.  Dec.  171. 

Satisfaction  of  execution  by  levy  on  real  or 
personal  property.    Sec  note  58  Am.  Dec.  350. 

CODE  COMMISSIONEES'  NOTE.  1.  "Prop- 
erty," defined.  See  §  17,  ante,  subds.  3,  4,  5. 
The  term  "property"  includes  a  judgment.  Adams 
V.  Hackett,  7  Cal.  203;  Crandall  v.  Blen,  13  Cal. 
15;  Davis  v.  Mitchell,  34  Cal.  88.  "Property" 
is  the  exclusive  right  of  possessing,  enjoying,  and 
disposing  of  a  thing;  it  is  the  right  and  interest 
which  a  man  hus  in  lands  and  chattels,  to  the 
e.xclusion  of  others  ;  and  the  word  is  sufficiently 
comprehensive  to  include  every  species  of  es- 
tate, real  and  personal.  McKeon  v.  Bisbee,  9  Cal. 
142;  70  Am.  Dec.  642.  The  term  "property  in 
lands"  is  not  confined  to  title  in  fee,  but  is  suffi- 
ciently comprehensive  to  include  any  unsatisfac- 
tory interest,  whether  it  be  a  leasehold  or  mere 
right  of  possession.  State  v.  Moore,  12  Cal.  56. 
The  term  "property,"  as  applied  to  lands,  em- 
braces all  titles,  legal  and  equitable,  perfect  or 
imperfect.  Leese  v.  Clark,  20  Cal.  388;  State  t. 
Moore,   12  Cal.  56. 

2.  What  is  subject  of  execution.  Where  A 
has  m'Tchandise  stored  in  the  warehouse  of  B, 
and  sold  a  portion  of  it  to  C,  and  gave  an  order 
for  the  merchandise  sold  on  B,  who  accepted  the 
same,  and  gave  C,  in  e.xchange,  a  receipt  for  the 
same,  and  transferred  it  on  his  warehouse-books 
to  the  account  of  C,  but  did  not  separate  any 
specific  portion  from  the  merchandise  of  A  as 
belonging  to  B,  and  the  whole  was  subsequently 


seized  in  an  action  against  A,  it  was  decided  that 
the  sheriff  was  not  liable  to  C,  in  the  absence 
of  Bcgrcgiition  of  the  merchandise,  but  that  B 
was  estopped  by  his  reciipt  from  denying  his  lia- 
bility. .Vduiuh  V.  Uorham,  6  Cal.  68.  I'laiutiff 
was  walking  along  tho  street  with  a  bag  of  gold 
coin  in  his  hand.  Two  of  defendants,  a  deputy 
siierilT  and  constable,  seized  him,  and  by  force 
took  the  bag  of  coin  from  him.  Plaintiff  sues 
for  the  seizure  and  conversion  of  the  coin.  De- 
fendants produced  three  judgments  and  execu- 
tions in  their  favor  against  li.,  brother  of  plaintiff, 
and  proved  that  the  bag  of  coin  was  the  prop- 
erty of  the  brother,  and  was  seized  under  thesu 
executions.  On  appeal,  it  waa  decided  that  plain- 
tiff could  claim  no  exemption  from  the  seizure 
of  coin  held,  as  this  was  in  his  hand,  though  he 
might  perhaps,  in  rafereiice  to  money  upon  hiu 
person.  The  coin  in  the  hand  was,  like  a  horse 
held  by  the  bridle,  subject  to  seizure  on  execu- 
tion against  its  owner.  Green  v.  Palmer,  15  Cal. 
411;  76  Am.  Dec.  492.  Funds  in  the  bands  of 
a  receiver,  in  an  action  for  dissolution,  are  liable 
to  attachment  at  any  time  before  a  final  decree 
of  dissolution  and  distribution.  Adams  v.  Woods, 
9  Cal.  24.  Where  the  judgment  debtor  has  prop- 
erty jointly  with  another,  a  sheriff,  who  has  such 
execution,  has  the  right  to  levy  on  such  prop- 
erty and  take  it  into  possession,  for  the  purpose 
of  subjecting  it  to  sale.  Waldman  v.  Broder,  10 
Cal.  378.  P.  puroliased  some  yokes  of  oxen 
of  H.,  the  appellant,  for  a  certain  sum,  paid  part 
down,  and  gave  his  note,  with  C.  as  surety,  for 
the  balance;  C.  signed  with  the  express  condition 
that  title  to  the  oxen  was  to  remain  in  H.  till 
they  were  fully  paid  for.  F.  was  to  have  the 
absolute  use  of  them.  The  oxen  were  placed  in 
the  hands  of  a  brother  of  II.,  who  was  in  the 
employ  of  F.,  as  a  driver,  with  the  intention  of 
securing  the  title  in  H.  The  defendant,  a  con- 
stable, levied  upon  and  sold  the  oxen,  llius  situ- 
ated, as  the  property  of  F.  And  it  was  decided 
upon  appeal  that  F.  had  such  a  right  of  property 
in  them  as  was  subject  to  execution,  the  sale  by 
H.  to  F.  being  absolute.  Helm  v.  Dumars,  3  Cal. 
454.  The  interest  of  a  partner  in  partnership 
goods,  etc.,  subject  to  levy  on  execution  ascainsl 
him.  Jones  v.  Thompson,  12  Cal.  191.  But  is 
subject  to  prior  rights  and  liens  of  other  part- 
ners and  joint  creditors  of  firm.  Iil.;  F^Mnda:e 
V.  See  Yup  Co.,  17  Cal.  44.  If  a  partnership, 
in  embarrassed  circumstances,  converts  its  means 
(upon  the  strength  of  which  it  has  obtained 
credit)  into  real  estate  to  be  held  by  one  of  the 
partners  as  a  homestead  for  the  purpose  of  de- 
frauding creditors,  tho  property,  notwithstanding 
the  declaration  of  homestead,  is  liable  to  levy  on 
execution  by  partnership  creditors.  Bishop  v. 
Hubbard,  23  Cal.  514;  83  Am.  Dec.  132.  In- 
terest of  mortgagor  liable  to  sale  on  execution. 
Halsey  v.  Martin,  22  Cal.  645.  A  promissory 
note  is  liable  to  seizure  and  sale  on  execution 
against  holder  and  payee.  Davis  v.  Mitchell,  34 
Cal.  88,  and  cases  there  cited.  A  purchaser  on 
execution  sale  of  real  estate  has  an  estate  in  the 
property  purchased,  both  before  and  after  the 
time  when  right  of  redemption  expires,  which  is 
subject  of  attachment  on  execution  against  his 
property.  Page  v.  Rogers,  31  Cal.  293.  A  ferry- 
boat, the  property  of  private  individuals,  is  not 
exempt  from  execution  because  it  is  used  to 
carr%  the  United  States  mails.  Lathrop  v.  Mid- 
dleton,    23    Cal.    257;    83    Am.    Dec.    112. 

3.  Property  not  liable  to  execution.  A  deliv- 
ered merchandise  as  security  for  payment  of  a 
debt  from  A  to  B,  with  the  understanding  that 
B  should  sell  the  merchandise  and  pay  his  debt 
out  of  the  proceeds.  The  merchandise  was  after- 
wards levied  upon  by  the  defendants,  under  an 
execution  in  their  favor  against  A,  as  his  prop- 
erty. Held,  that  the  merchandise  was  not  sub- 
ject to  execution  against  A,  without  payment, 
in  the  first  place,  of  his  indebtedness  to  B. 
Swanston  v.  Sublette,  1  Cal.  123.  A  franchise 
is  not  the  subject  of  levy  and  sale  under  execu- 
tion. Thomas  v.  Armstrong.  7  Cal.  286;  Wood 
V.  Truckee  Turnpike  Co.,  24  Cal.  474.  Things 
in  action  may  be  levied  upon  on  execution.  Adams 
V.  Hackett.  7  Cal.  187.  Even  where  there  is 
personal  property  sufficient  to  satisfy  the  execu- 
tion,  yet  the   sheriff  may,  on  the  request  of  the 


§689 


EXECUTION. 


810 


defendant  in  execution,  properly  levy  on  real  es- 
tate. Smith  V.  Randall,  6  Cal.  47;  65  Am.  Dec. 
475.  Property  ic  the  custody  of  the  law  is  not 
liable  to  execution,  without  an  oiUer  ironi  the 
court.  Yuba  County  v.  Adams,  7  Cal.  35;  Clymer 
V.  Willis,  3  Cal.  363;  58  Am.  Dec.  414.  Where 
money  has  been  placed  on  general  deposit  in  a 
bank,  and  negotiable  certificates  of  deposit  haTB 
been  issued  to  the  depositor  for  the  amount, 
there  is  nothing  left  in  the  possession  of  the 
bankers,  belonging  to  the  depositor,  which  is 
liable  to  attachment.  McMillan  v.  Richards,  9 
Cal.  365;  70  Am.  Dec.  655.  An  e.xecution  can- 
not be  levied  upon  a  county's  revenues  in_  the 
hands  of  the  treasurer.  Oilman  v.  Contra  Costa 
County,  8  Cal.  52;  68  Am.  Dec.  290.  Contin- 
gent and  complicated  contracts  cannot  be  levied 
upon  and  sold,  unless  they  are  in  the  possession 
of  the  officer,  exhibited  to  the  bystanders,  and 
assigned  to  the  purchaser.  A  full  and  accurate 
description  of  the  particular  interest  and  chose 
in  action,  with  all  its  conditions  and  covenants, 
and  a  full  explanation  of  the  facts  determining 
the  value  of  the  chose,  must  be  given  by  the 
levy  and  announced  at  the  sale.  Crandall  v.  Bleu, 
13  Cal.  15;  see  also  Davis  v.  Mitchell,  34  Cal. 
88.  A  conveyed  land  to  B,  and  allowed  part 
of  the  purchase-money  to  remain  unpaid.  B 
afterwards  sold  part  of  the  land  to  C,  who  had 
no  notice  of  As  lien  as  a  vendor,  and  gave  a 
mortgage  to  B  for  part  of  the  purchase-money. 
A  obtained  judgnunl  against  B  for  the  unpaid 
purchase-money,  and  levied  upon  and  sold  B's 
interest   in   the   land.      The   title   to   the    mortgage 


debt  due  from  C  to  B  did  not  pass  by  the  sale. 
Bryan  v.  Sharp.  4  Cal.  351.  Simply  because  a 
judgment  debtor  was  found  upon  the  mining- 
ground  of  plaintiff,  the  sheriff,  who  had  execu- 
tion against  such  debtor,  was  not  justified  in 
going  on  the  ground  and  digging  up  the  soil,  and 
taking  the  gold  it  contained.  Rowe  v.  Bradley, 
12  Cal.  226.  If  A  sold  property  to  B  before  C 
commenced  a  suit  against  A  for  the  recovery  of 
such  property,  the  property  cannot,  on  an  execu- 
tion on  a  judgment  in  favor  of  C,  be  taken  from 
B.    Peterie  v.  Bugbey,  24  Cal.  423. 

4.  What  constitutes  a  levy.  On  personal  prop- 
erty capable  of  manual  delivery,  a  levy  is  made 
by  taking  possession  of  the  property.  A  levy 
will  not  defeat  subsequent  execution  on  goods  al- 
lowed to  remain  in  the  hands  of  the  debtor. 
Dutertre  v.  Driard,  7  Cal.  549 ;  Taffts  v.  Man- 
love,  14  Cal.  47;  73  Am.  Dec.  610.  Service  of 
copy  of  execution  and  notice  of  garnishment  on 
third  party,  constitutes  no  lien  on  property  of 
debtor  capable  of  manual  delivery.  Johnson  v. 
Gorham,  6  Cal.  195;  65  Am.  Dec.  501.  Any  act 
on  the  part  of  the  officer,  showing  the  intent  to 
sell  the  specific  land,  and  to  subject  it  to  the 
satisfaction  of  the  judgment,  constitutes  a  "levy- 
ing" of  the  execution,  as  against  the  defendant 
in  the  execution,  and  the  performance  of  the  act 
described  in  the  statute  as  a  levying  of  execu- 
tion is  material  only  in  reference  to  the  rights 
of  third  parties,  or  persons  who  are  not  parties 
to  the  writ.  The  levy  fixed  the  date  of  the  com- 
mencement of  the  sheriff's  title.  Blood  v.  Light, 
38  Cal.  649  ;  99  Am.  Dec.  441. 


§  689.  When  property  claimed  by  third  party.  Indemnity.  If  the 
property  levied  on  is  claimed  by  a  third  person  as  his  property  by  a  written 
claim  verified  by  his  oath  or  that  of  his  agent,  setting  out  his  right  to  the 
possession  thereof,  and  served  upon  the  sheriff,  the  sheriff  is  not  bound 
to  keep  the  property  unless  the  plaintiff,  or  the  person  in  whose  favor  the 
writ  of  execution  runs,  on  demand,  indemnifies  the  sheriff  against  such 
claim  by  an  undertaking  by  at  least  two  good  and  sufficient  sureties  in  a 
sum  equal  to  double  the  value  of  the  property  levied  on;  and  the  sheriff 
is  not  liable  for  damages  for  the  taking  or  keeping  of  such  property  to  any 
such  third  person,  unless  such  a  claim  is  made. 


Sureties  liable  on  judgment,  if  sheriS  give 
notice  to  them  of  action  brought  against  him. 
Post,  §  1055. 

Legislation  §  689.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  218,  which  read:  "If 
the  property  levied  on  be  claimed  by  a  third  per- 
son as  his  property,  the  sheriff  shall  summon 
from  his  county  six  persons  qualified  as  jurors 
between  the  parties,  to  try  the  validity  of  the 
claim.  He  shall  also  give  notice  of  the  claim 
and  of  the  time  of  trial  to  the  plaintiff,  who  may 
appear  and  contest  the  claim  before  the  jury. 
The  jury  and  the  witnesses  shall  be  sworn  by  the 
sheriff,  and  if  their  verdict  be  in  favor  of  the 
claimant,  the  sheriff  may  relinquish  the  levy,  un- 
less the  judgment  creditor  give  him  a  sufficient 
indemnity  for  proceeding  thereon.  The  fees  of 
the  jury,  the  sheriff,  and  the  witnesses,  shall  be 
paid  by  the  claimant,  if  the  verdict  be  against 
him;  otherwise  by  the  plaintiff.  On  the  trial 
the  defendant  and  the  claimant  may  be  exam- 
ined by  the  plaintiff  as  witnesses."  When  §  689 
was  enacted  in  1872,  (1)  "shall"  was  changed 
to  "may,"  before  "summon";  (2)  "shall"  was 
changed  to  "must,"  before  "also  give,"  before 
"be  sworn,"  and  before  "be  paid";  (3)  the  last 
sentence  was  stricken  out,  and  a  new  one  added, 
reading,  "Each  party  must  deposit  with  the  sher- 
iff, before  the  trial,  the  amount  of  his  fees,  and 
the  fees  of  the  jury,  and  the  sheriff  must  pay 
the  same   to   the   prevailing  party." 

3.  Amended  by  Stats.  1891,  p.  20,  to  read: 
"If  the  property  levied  on  be  claimed  by  a  third 
person  as  his  property  by  a  written  claim  veri- 
fied by  the  oath  of  said  claimant,  setting  out  his 
title  thereto,  his  right  to  the  possession  thereof, 
and  stating  the  grounds  of  such  title,  and  served 


upon  the  sheriff,  the  sheriff  is  not  bound  to  keep 
the  property,  unless  the  plaintiff,  or  the  person 
in  whose  favor  the  writ  of  execution  runs,  on 
demand,  indemnify  the  sheriff  against  such  claim 
by  an  undertaking  by  at  least  two  good  and  suffi- 
cient sureties;  and  no  claim  to  such  property  is 
valid  against  the  sheriff,  or  shall  be  received,  or 
be  notice  of  any  rights,  unless  made  as  above 
provided." 

3.  Amendment  by  Stats.  1901,  p.  153 ;  un- 
constitutional.    See   note   ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  683;  the  code 
commissioner  saying,  "The  amendment  strikes  out 
the  words  "setting  out  his  title  thereto,'  which 
subserve  no  useful  purpose,  and  also  inserts  the 
amount  of  the  undertaking  near  the  end  of  the 
section  'in  a  sum  equal  to  double  the  value  of 
the  property  levied  on,'  which  is  the  usual  cus- 
tom of  sheriffs  any  way,  and  recasts  the  last 
sentence   so  as   to  make  it  more  intelligible." 

Construction  of  section.  This  section, 
both  before  and  after  its  amendment  in 
1891,  was  intended  for  the  protection  of 
the  officer,  and  is  therefore  matter  of  de- 
fense. Paden  v.  Goldbaum,  4  Cal.  Unrep. 
767;  37  Pac.  759.  The  provisions  of  this 
section  prescribe  only  the  manner  in  which 
the  claimant  is  to  make  the  demand. 
Brenot  v.  Robinson,  108  Cal.  143;  41  Pac. 
37.  The  making  or  omitting  to  make  a 
verified  claim  does  not  affect  the  owner- 
ship of  the  plaintiff;  but  if  not  made,  the 
officer   is   exempted   from   liability   in   cer- 


811 


SUFFICIENCY    OF    CLAIM ACTION    AGAINST    SHERIFF. 


§689 


tain  actions,  and  is  matter  of  defense. 
Paden  v.  Goldbaum,  4  Cal.  Unrep.  767;  37 
Pac.  759.  This  section  is  intended  pri- 
marily for  the  protection  of  the  sheriff; 
and  if  claim  is  made,  the  sheriff  is  not 
bound  to  retain  the  property,  unless  he  is 
indemnified,  and  may  release  it,  without 
incurring  a  liability  therefor  to  the 
jdointiff  in  attachniont  or  execution:  the 
sufliciency  of  the  notice  is  therefore  a  ques- 
tion between  the  sheriff  and  the  plaintiff 
in  attachment.  Kellogg  v.  Burr,  126  Cal. 
38;  58  Pac.  306;  Paden  v.  Goldbaum,  4  Cal. 
Unrep.  767;  37  Pac.  759;  Brenot  v.  Robin- 
son, 108  Cal.  143;  41  Pac.  37;  Dubois  v, 
Spinks,  114  Cal.  289;  46  Pac.  95.  The 
phrase,  "grounds  of  such  title,"  in  this 
section  as  amended  in  1891,  had  reference 
to  the  reasons  why  the  claimant  averred 
his  own  title  superior  to  that  of  the  execu- 
tion debtor;  and  an  explanation  of  the 
manner  in  which  such  debtor  acquired  pos- 
session of  the  property  from  the  claimant, 
coupled  with  a  statement  of  the  claimant's 
ownership,  seemed  to  be  all  that  should 
be  required  in  such  a  case.  Vermont  Mar- 
ble Co.  V.  Brow,  109  Cal.  236;  50  Am.  St. 
Rep.  37;  41  Pac.  1031. 

Sufnciency  of  claim.  A  claim  or  demand 
for  a  crop,  served  u]>on  the  officer,  is  not 
sufficient,  where  it  does  not  claim  owner- 
ship or  title,  but  merely  states  that  the 
claimant  is  entitled  to  the  possession  of 
the  whole  crop  for  the  satisfaction  of  a 
certain  sum  secured  by  him  for  rent. 
Stockton  Sav.  &  L.  See.  v.  Purvis.  5  Cal. 
Unrep.  164;  42  Pac.  441.  A  notice  of 
claim,  that  the  claimant  is  entitled  to  the 
possession  under  a  bill  of  sale,  is  suffi- 
ciently explicit,  although  the  possession 
under  the  bill  of  sale  was  given  by  way  of 
security.  Dubois  v.  Spinks,  114  Cal.  289; 
46  Pac.  95.  A  verified  written  claim,  stat- 
ing that  the  affiant  acquired  title  to  the 
property  from  two  persons  named,  served 
upon  the  officer,  is  sufficient  to  apprise  him 
of  the  source  of  title,  whether  the  prop- 
erty was  acquired  from  such  persons 
jointly  or  severallv.  Henderson  v.  Hart, 
122  Cal.  332;  54  Pac.  1110;  and  see  Ver- 
mont Marble  Co.  v.  Brow,  109  Cal.  241; 
50  Am.  St.  Rep.  37;  41  Pac.  1031;  Dubois 
v.  Spinks,  114  Cal.  289;  46  Pac.  95.  Where 
the  plaintiff  in  attachment,  as  well  as  the 
sheriff,  treated  and  regarded  the  notice 
as  sufficient,  and  the  sheriff,  having  acted 
upon  the  claim  served  upon  him,  procured 
the  protection  of  an  indemnity  bond,  the 
defendant  could  not  have  been  misled  or 
prejudiced  by  an  alleged  defect  in  the 
claim  served  upon  him,  and  the  judgment 
will  not  be  reversed  for  such  allegeii  de- 
fect. Kellogg  V.  Burr,  126  Cal.  38;  58  Pac. 
306.  An  exception  of  certain  property,  in 
the  notice  of  claim,  does  not  vitiate  the 
claim,  where  theve  is  no  question  as  to  the 
ownership  of  the  property  excepted.  Suss- 
kind  V.  Hall,  5  Cal.  Unrep.  304;  44  Pac. 
328, 


Action  by  third  person  against  sheriff. 
The  right  of  action  for  the  conversion  of 
projierty  seized  by  an  officer  is  complete  on 
the  day  of  the  seizure;  and  such  right 
is  not  lost  or  impaired  by  an  amendment 
to  the  section,  that  did  not  go  into  effect 
until  after  the  seizure.  Black  v.  Clasbj', 
97  Cal.  482;  32  Pac.  564.  The  complaint 
in  an  action  against  the  sheriff,  and  the 
sureties  on  his  official  bond,  for  the  con- 
version of  property  levied  upon,  is  not  de- 
fective in  failing  to  allege  a  demand  for 
the  property  in  the  manner  and  form  pre- 
scribed by  this  section.  Fuller  Desk  Co.  v. 
McDade,  113  Cal.  360;  45  Pac.  694;  and  see 
Bell  V.  Peek,  104  Cal.  35;  37  Pac.  766; 
Brenot  v.  Robinson,  108  Cal.  143;  41  Pac. 
37.  An  allegation,  that,  before  the  com- 
mencement of  the  action,  the  plaintiff 
made  a  demand  upon  the  officer  for  the 
property,  is,  as  a  matter  of  pleading,  a 
statement  of  the  fact  of  demand;  and  if 
the  form  of  the  demand  did  not  comply 
with  the  statute,  the  defendant  could  have 
traversed  the  allegation  in  his  answer,  and 
could  also  have  objected  to  the  proof  when 
offered  at  the  trial.  Brenot  v.  Robinson, 
108  Cal.  143;  41  Pac.  37.  Where  the  form 
of  the  demand  does  not  comply  with  the 
provisions  of  this  section,  the  defendant 
should  traverse  the  allegation  in  his  an- 
swer, or  object  to  the  proof  when  offered. 
Richey  v.  Haley,  138  Cal.  441;  71  Pac.  499; 
and  see  Brenot  v.  Robinson,  108  Cal.  145; 
41  Pac.  37.  Where  no  issue  was  taken 
by  the  answer  as  to  the  demand  and  affi- 
davit alleged  in  the  complaint  to  hav6 
been  served  upon  the  constable,  and  no 
objection  was  made  when  they  were  offered 
in  evidence,  all  objection  thereto  is  waived, 
and  it  cannot  thereafter  be  urged  that  the 
evidence  shows  that  a  copy  of  the  affidavit, 
and  not  the  original,  was  served.  Ilickey 
V.  Coschina,  133  Cal.  81;  65  Pac.  313.  An 
omission  in  the  findings,  upon  an  averment 
of  a  demand  by  the  plaintiff  upon  the 
sheriff,  is  not  material,  where  there  is  no 
attempted  denial  of  the  allegation;  and 
where  it  appears  affirmatively  by  the  de- 
fendant's answer  that  any  kind' of  a  de- 
mand would  have  been  unavailing,  an 
immaterial  variance  in  proof  relative  to 
the  demand  introduced  in  evidence  will 
not  affect  the  case.  Hunt  v.  Hammel,  142 
Cal.  456;  76  Pac.  378;  and  see  Richev  v. 
Haley,  138  Cal.  441;  71  Pac.  499.  It  can- 
not be  urged  upon  appeal,  for  the  first 
time,  that  there  was  no  proof  of  the  ser- 
vice of  the  verified  claim  required  by  this 
section,  where  the  allegation  of  demand  in 
the  complaint  is  not  denied  in  the  answer, 
and  it  appears  affirmatively  from  the  an- 
swer that  any  kind  of  a  demand  would 
have  been  unavailing.  Richey  v.  Halev, 
138Cal.  441;  71  Pac.  499. 

CODE  COMMISSIONERS'  NOTE.  1.  When 
property  is  claimed  by  third  party.  Trial  of 
right  of  property.  P.,  in  posstssion  of  a  ves- 
sel, appointed  H.  as  master.  The  plaintiff,  who 
sots    up    a    claim    to    the    vessel,    entered    into    a 


690 


EXECUTION. 


812 


charter-party  with  P..  and  by  it  acknowledges 
him  to  be  the  owner,  and  his  appointee,  H.,  to 
be  the  master.  After  the  charter-party,  the  de- 
clared owner  of  the  vessel  became  the  debtor  of 
the  master,  who  attached  the  vessel.  The  plain- 
tiff brought  the  action  against  the  sheriff  to  re- 
cover the  vessel  under  the  attachment.  It  was 
decided,  that  where  one  allows  another  to  deal 
with  his  property  as  if  it  belonged  to  the  latter, 
and,  by  declarations,  allows  others  to  be  misled, 
the  party  making  such  declarations  is  concluded 
by  them.  Hostler  v.  Hays,  3  Cal.  302.  If  the 
sheriff  prove  a  trial  by  jury  and  verdict  for 
clairoart,  the  plaintiff  must  show  that  he  ren- 
dered the  bond  of  indemnity  to  the  sheriff,  re- 
quired bv  law,  in  order  to  hold  a  sheriff  liable 
for  not  levying  the  execution.  Strong  v.  Patter- 
son, 6  Cal.  156.  Where  several  creditors  levy, 
and  those  prior  fail  to  indemnify  the  sheriff,  he 
shall  proceed  only  for  the  benefit  of  those  who 
indemnify  and  incur  responsibility,  and  relin- 
quish the  levy  of  those  failing  to  indemnify. 
Davidson  v.  Dallas,  8  Cal.  227.  A  sheriff,  in 
the  sale  of  personal  property,  is  not  protected  by 
the  verdict  of  a  jury  on  the  trial  of  the  right  of 
property,  under  the  provisions  of  this  section  of 
the  code.  The  proceedings  before  a  sheriff,  in 
such  a  trial,  are  not  judicial.  Perkins  v.  Thorn- 
burgh,  10  Cal.  189.  To  estop  a  party  from 
claiming  goods  as  against  the  creditor  of  a  third 
party,  he  must  have  stated  to  the  creditor  him- 
self that  he  had  sold  the  article  to  the  third 
party,  and  the  creditor  must  have  parted  with 
some  right  or  advantage  on  the  faith  of  the  in- 
formation. Goodale  v.  Scannell,  8  Cal.  27.  An 
agreement  to  indemnify  a  sheriff  for  seizing  prop- 
erty under  execution  is  valid.  Stark  v.  Raney, 
18  Cal.  622.  Where  property  is  levied  on  by 
a  sheriff,  by  virtue  of  execution  as  defendant's 
property,  and  is  claimed  by  third  party,  and  a 
jury  trying  the  right  of  property  decides  against 
the  claimant,  the  verdict  does  not  protect  the 
officer  in  a  suit  against  him  by  defendant,  nor 
can  it  be  allowed  as  evidence  in  defense.  Shel- 
don V.  Loomis,  28  Cal.  122.  The  interest  which 
a  pledgor  has  in  the  thing  pledged  is  liable  to 
execution,  and  may  be  reached  in  the  hands  of 
a  pledgee  when  a  third  party,  but  this  can  only 
be  done  by  serving  and  enforcing  a  garnishment 
on  the  pledgee,  and  not  by  a  seizure  of  the 
pledge.  Treadwell  v.  Davis,  34  Cal.  607;  94  Am. 
Dec.  770;  Pomeroy  v.  Smith,  17  Pick.  95.  Lia- 
bility   of   joint   trespassers   under   legal   process; 

§  690.  What  exempt  from  execution.  The  following  property  is  exempt 
from  execution  or  attachment,  except  as  herein  otherwise  specially  pro- 
vided: 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  two  hundred  dollars 
belonging  to  the  judgment  debtor; 

2.  Necessary  household,  table,  and  kitchen  furniture  belonging  to  the 
judgment  debtor,  including  one  sewing-machine,  stove,  stovepipes  and 
furniture,  wearing-apparel,  beds,  bedding  and  bedsteads,  hanging  pictures, 
oil-paintings  and  drawings  drawn  or  painted  by  any  member  of  the  family, 
and  family  portraits  and  their  necessary  frames,  provisions  and  fuel  ac- 
tually provided  for  individual  or  family  use,  sufficient  for  three  months, 
and  three  cows  and  their  suckling  calves,  four  hogs  with  their  suckling 
pigs,  and  food  for  such  cows  and  hogs  for  one  month;  also  one  piano,  one 
shotgun  and  one  rifle; 

3.  The  farming  utensils  or  implements  of  husbandry  of  the  judgment 
debtor,  not  exceeding  in  value  the  sum  of  one  thousand  dollars;  also  two 
oxen  or  two  horses  or  two  mules,  and  their  harness,  one  cart  or  buggy  and 
two  wagons,  and  food  for  such  oxen,  horses  or  mules,  for  one  month ;  also 
all  seed  grain  or  vegetables  actually  provided,  reserved  or  on  hand  for  the 
purpose  of  planting  or  sowing  at  any  time  within  the  ensuing  six  months, 


property  illegally  seized  under  attachment.  Lewis 
v.  Johns,  34  Cal.  633.  Sheriff  is  liable  for  value 
of  property  which  he  sells,  if  it  was  claimed  as 
exempt  from  execution  prior  to  the  sale.  Spen- 
cer v.  Long,  39  Cal.  700.  So,  also,  he  is  liable 
for  sale  of  property  when  he  is  notified  of  issu- 
ance of  writ  commanding  stay  of  proceedings.  Id. 
2.  Notice  and  demand.  In  an  action  against 
a  sheriff  for  seizure  and  conversion  of  the  plain- 
tiff's property,  taken  under  process  against  a 
third  person,  a  demand  upon  the  defendant  prior 
to  the  bringing  of  the  suit  is  not  necessary  to  a 
recovery.  The  sheriff  having  misapplied  his  pro- 
cess, and  whether  by  mistake  or  by  design  will 
make  no  difference,  stands  in  the  position  of 
every  other  trespasser,  and  is  liable  to  an  action 
the  instant  the  trespass  is  committed.  The  cir- 
cumstance that  the  property  was  in  possession  of 
the  execution  debtor  at  the  date  of  the  seizure 
amounts  to  nothing,  except  upon  proof  of  fraud 
or  commixture.  The  rule  of  the  common  law  is 
correctly  stated  in  Ledley  v.  Hays,  1  Cal.  160, 
and  the  correctness  of  that  decision  is  impliedly 
recognized  in  Daumiel  v.  Gorham,  6  Cal.  44.  The 
statement  of  facts  in  Taylor  v.  Seymour,  6  Cal. 
512,  is  imperfect;  but  if  that  case  is  to  be  under- 
stood as  laying  down  a  different  rule,  then  we 
prefer  to  follow  Ledley  v.  Hays,  1  Cal.  160. 
Eouhvare  v.  Craddock,  30  Cal.  190;  see  also  Cod- 
man  V.  Freeman,  3  Cush.  314,  and  Acker  v.  Camp- 
bell, 23  Wend.  372;  see  also  Wellrnan  v.  English, 
38  Cal.  583;  Moore  v.  Murdock,  26  Cal.  514; 
Sargent  v.  Sturm,  23  Cal.  359;  83  Am.  Dec.  118. 
A  sheriff  attaching  goods  under  execution  must 
have  notice  of  the  claim  of  a  third  party  to  the 
goods,  and  a  demand  for  them,  or  he  is  not  liabl« 
for  damages  for  such  seizure  and  detention.  Tay- 
lor V.  Seymour,  6  Cal.  512  ;  Daumiel  v.  Gorham, 
6  Cal.  43;  Killey  v.  Scannell,  12  Cal.  73.  The 
owner  of  property  levied  upon  as  belonging  to 
another,  is  not  estopped  from  showing  title  in 
himself  because  he  has  given  an  accountable  re- 
ceipt for  its  delivery  to  the  officer,  although  the 
receipt  admits  that  the  property  is  levied  upon 
as  belonging  to  the  debtor,  if  he  notifies  the 
officer  of  his  claim  at  or  before  the  time  the  re- 
ceipt is  given.  But  if  he  fails  to  make  his  claim 
known,  and  thus  influences  the  conduct  of  the 
officer,  he  is  estopped  from  afterwards  asserting 
it,  provided  the  facts  and  circumstances  relating 
to  his  claim  were  then  known  to  him.  Eleven  v. 
Freer,  10  Cal.  172. 


813  WHAT  EXEMPT  FROM    EXECUTION.  §  690 

not  exceeding  in  value  the  sum  of  two  hundred  dollars;  and  seventy-five 
beehives;  one  horse  and  vehicle  belonffiug  to  any  person  who  is  maimed 
or  crippled,  and  the  same  is  necessary  in  his  business; 

4.  The  tools  or  implements  of  a  mechanic  or  artisan,  necessary  to  carry 
on  his  trade;  the  notarial  seal,  records  and  office  furniture  of  a  notary 
public;  the  instruments  and  chest  of  a  surgeon,  physician,  surveyor  or 
dentist,  necessary  to  the  exercise  of  their  profession,  with  their  professional 
libraries  and  necessary  office  furniture;  the  professional  libraries  of  at- 
torneys, judges,  ministers  of  the  gospel,  editors,  school  teachers  and  music 
teachers,  and  their  necessary  office  furniture;  including  one  safe  and  one 
typewriter;  also  the  musical  instruments  of  music  teachers  actually  used 
by  them  in  giving  instructions,  and  all  the  indexes,  abstracts,  books,  papers, 
maps  and  office  furniture  of  a  searcher  of  records  necessary  to  be  used  in 
his  profession;  also  the  typewriters  or  other  mechanical  contrivances  em- 
ployed for  writing  in  type,  actually  used  by  the  owner  thereof  for  making 
his  living ;  also  one  bicycle  when  the  same  is  used  by  the  owner  for  the  pur- 
pose of  carrying  on  his  regular  business,  or  when  the  same  is  used  for  the 
purpose  of  transporting  tlie  owner  to  and  from  his  place  of  business; 

5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in  value  the  sum  of 
.five  hundred  dollars;  also  his  sluices,   pipes,  hose,  windlass,   derrick,  cars, 

pumps,  tools,  implements,  and  appliances  necessary  for  carrying  on  any  min- 
ing operation,  not  exceeding  in  value  the  aggregate  sum  of  five  hundred 
dollars;  and  two  horses,  mules  or  oxen  with  their  harness,  and  food  for 
such  horses,  mules  or  oxen  for  one  month,  when  necessary  to  be  used  on 
any  whim,  wdndlass,  derrick,  car  pump  or  hoisting  gear;  and  also  his  min- 
ing claim,  actually  worked  by  him,  not  exceeding  in  value  the  sum  of  one 
thousand   dollars; 

6.  Two  horses,  tw^o  oxen  or  two  mules,  and  their  harness,  and  one  cart 
or  wagon,  one  dray  or  truck,  one  coupe,  one  hack,  or  carriage,  for  one  or 
two  horses,  by  the  use  of  which  a  cartman,  drayman,  truckman,  huckster, 
peddler,  hackman,  teamster  or  other  laborer  habitually  earns  his  living; 
and  one  horse  with  vehicle  and  harness  or  other  equipments,  used  by  a 
physician,  surgeon,  constable,  or  minister  of  the  gospel,  in  the  legitimate 
practice  of  his  profession  or  business;  with  food  for  such  oxen,  horses  or 
mules  for  one  month ; 

7.  One  fishing  boat  and  net.  not  exceeding  the  total  value  of  five  hun- 
dred dollars,  the  property  of  any  fisherman,  by  the  lawful  use  of  which  he 
earns  his  livelihood; 

8.  Poultry  not  exceeding  in  value  seventy-five  dollars; 

9.  The  wages  and  earnings  of  all  seamen,  seagoing  fishermen  and  sealers, 
not  exceeding  three  hundred  dollars,  regardless  of  where  or  when  earned, 
and  in  addition  to  all  other  exemptions  otherwise  provided  by  any  law; 

10.  The  earnings  of  the  judgment  debtor  for  his  personal  services  ren- 
dered at  any  time  within  thirty  days  next  preceding  the  levy  of  execution 
or  attachment,  when  it  appears  by  the  debtor's  affidavit  or  otherwise,  that 
such  earnings  are  necessary  for  the  use  of  his  family,  residing  in  this  state, 
supported  in  whole  or  in  part  by  his  labor;  but  where  debts  are  incurred 
by  any  such  person,  or  his  wife  or  family  for  the  common  necessai-ies  of 
life,  or  have  been  incurred  at  a  time  wdien  the  debtor  had  no  family  resid- 


§  690  EXECUTION.  814 

ing  in  this  state,  supported  in  whole  or  in  part  by  his  labor,  the  one  half  of 
such  earnings  above  mentioned  is  nevertheless  subject  to  execution,  gar- 
nishment or  attachment  to  satisfy  debts  so  incurred ; 

11.  The  shares  held  by  a  member  of  a  homestead  association  duly  in- 
corporated, not  exceeding  in  value  one  thousand  dollars  if  the  person 
holding  the  shares  is  not  the  owner  of  a  homestead  under  the  laws  of  this 
state; 

12.  All  the  nautical  instruments  and  wearing-apparel  of  any  master, 
officer,  or  seaman  of  any  steamer  or  other  vessel; 

13.  All  fire-engines,  hooks  and  ladders,  with  the  carts,  trucks  and  car- 
riages, hose-buckets,  implements,  and  apparatus  thereunto  appertaining, 
and  all  furniture  and  uniforms  of  any  fire  company  or  department  organ- 
ized under  the  laws  of  this  state ; 

14.  All  arms,  uniforms,  and  accouterments  required  by  law  to  be  kept 
by  any  person,  and  also  one  gun,  to  be  selected  by  the  debtor; 

15.  All  court-houses;  jails,  public  offices  and  buildings,  lots,  grounds 
and  personal  property,  the  fixtures,  furniture,  books,  papers,  and  appurte- 
nances belonging  to  the  jail  and  public  offices  belonging  and  appertaining 
to  any  county  of  this  state ;  and  all  cemeteries,  public  squares,  parks,  and 
places,  public  buildings,  town  halls,  markets,  buildings  for  the  use  of  fire 
departments  and  military  organizations,  and  the  lots  and  grounds  thereto 
belonging  and  appertaining,  owned  or  held  by  any  town  or  incorporated 
city,  or  dedicated  by  such  town  or  city  to  health,  ornament  or  public  use, 
or  for  the  use  of  any  fire  or  military  company  organized  under  the  laws  of 
this  state ; 

16.  All  material  not  exceeding  one  thousand  dollars  in  value,  purchased 
in  good  faith  for  use  in  the  construction,  alteration  or  repair  of  any  build- 
ing, mining  claim  or  other  improvement  as  long  as  in  good  faith  the  same 
is  about  to  be  applied  to  the  construction,  alteration  or  repair  of  such 
building,  mining  claim  or  other  improvement; 

17.  All  machinery,  tools  and  implements,  necessary  in  and  for  boring, 
sinking,  putting  down  and  constructing  surface  or  artesian  wells;  also  the 
engines  necessary  for  operating  such  machinery,  implements,  tools,  etc., 
also  all  trucks  necessary  for  the  transportation  of  such  machinery,  tools, 
implements,  engines,  etc. ;  provided  that  the  value  of  all  the  articles  ex- 
empted under  this  subdivision  shall  not  exceed  one  thousand  dollars; 

18.  All  moneys,  benefits,  privileges,  or  immunities  accruing  or  in  any 
manner  growing  out  of  any  life  insurance,  if  the  annual  premiums  paid 
do  not  exceed  five  hundred  dollars,  and  if  they  exceed  that  sum  a  like 
exemption  shall  exist  which  shall  bear  the  same  proportion  to  the  moneys, 
benefits,  privileges,  and  immunities  so  accruing  or  growing  out  of  such 
insurance  that  said  five  hundred  dollars  bears  to  the  whole  annual  pre- 
miums paid; 

19.  Shares  of  stock  in  any  building  and  loan  association  to  the  value  of 
one  thousand  dollars; 

20.  All  money  received  by  any  person,  a  resident  of  the  state  as  a  pension 
from  the  United  States  government,  whether  the  same  shall  be  in  the  ac- 
tual possession  of  such  pensioner,  or  deposited,  loaned  or  invested  by  him. 


815 


WUAT  EXEMPT   FROM    EXECUTION. 


§690 


No  article,  however,  or  species  of  property  mentioned  in  this  section  is 
exempt  from  execution  issued  upon  a  judgment  recovered  for  its  price,  or 
upon  a  judgment  of  foreclosure  of  a  mortgage  or  other  lien  thereon. 


Building  aud  loan  corporation,  exemption  of 
shares   of,  from  execution.    Sre   Cjv.   Coiic,  §  V>l.i. 

Contract,  mutual-assessment,  exemption  from 
execution  of  moneys  arising  from.  See  Civ.  Code, 
§  45;!k. 

Homestead,  liability  of,  to  execution  for  debts. 
Ste   Civ.   Code,  §§  IJIO,    TJU. 

Homestead  property,  exemption  of  proceeds 
arising  from  sale  ot.    See  Civ.  Code,  S  1257. 

Legislation  S  690.  1.  Enacted  March  11,  1872; 
based  on  Priictice  Act,  §  219,  as  amended  by 
Stats.  1869-7U,  p.  384,  which  read:  "The  fol- 
lowing property  shall  be  e.\empt  from  execution, 
except  as  herein  otherwise  specially  provided: 
First.  Cliairs,  tables,  desks  and  books,  to  the 
value  of  one  hundred  dollars,  belonging  to  the 
judgment  debtor.  Second.  Necessary  household, 
table  and  kitchen  furniture,  belonging  to  the 
judgment  debtor,  including  stoves,  stovepipe  and 
stove  furniture,  wearing-apparel,  beds,  bedding 
and  bed.steads,  and  provisions  actually  provided 
for  individual  or  family  use,  suflicient  for  one 
month.  Third.  The  farming  utensils  or  imple- 
ments of  husbandry  of  the  judgment  debtor,  also 
two  oxen,  or  two  horses,  or  two  mules,  and  their 
harness,  fou'-  cows,  with  their  sucking  calves, 
one  cart  or  wagon,  and  food  for  such  oxen, 
horses,  cows  or  mules,  for  one  month;  also,  all 
seed,  grain  or  vegetables  actually  provided,  re- 
served or  on  hand  for  the  purpose  of  planting  or 
sowing,  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  the  sum  of  two 
hundred  dollars.  Fourth.  Tools  or  implements 
of  a  mechanic  or  artisan,  necessary  to  carry  on 
his  trade:  the  instruments  and  chest  of  a  sur- 
geon, physician,  surveyor  and  dentist,  necessary 
to  the  exercise  of  their  profession,  with  their 
scientific  and  professional  libraries;  the  law  libra- 
ries of  attorneys  and  counselors,  and  the  libra- 
ries of  ministers  of  the  gospel.  Fifth.  The  cabin 
or  dwelling  of  a  miner,  not  exceeding  in  value 
the  sum  of  five  hundred  dollars;  also,  his  sluices, 
pipes,  hose,  windlass,  derrick,  cars,  pumps,  tools, 
implements  and  appliances  necessary  for  carry- 
ing on  any  kind  of  mining  operations,  not  exceed- 
ing in  value  the  aggregate  sum  of  five  hundred 
dollars;  and  two  horses,  mules  or  oxen,  with 
their  harness,  and  food  for  such  horses,  mules 
or  oxen  for  one  month,  when  necessary  to  be 
used  for  any  whim,  windlass,  derrick,  car,  pump 
or  hoisting  gear.  Sixth.  Two  oxen,  two  horses 
or  two  mules,  and  their  harness,  and  one  cart 
or  wagon,  one  dray  or  truck,  one  coupe,  one 
hack  or  carriage,  for  one  or  two  horses,  by  the 
use  of  which  a  cartman,  drayman,  truckman, 
huckster,  peddler,  hackman,  teamster  or  other 
laborer  habitually  earns  his  living,  and  one  horse, 
with  vehicle  and  harness  or  other  equipments, 
used  by  a  physician,  surgeon  or  minister  of  the 
gospel  in  making  his  professional  visits,  with 
food  for  such  oxen,  horses  or  mules  for  one 
month.  Seventh.  AH  fire-engines,  hooks  and  lad- 
ders, with  the  carts,  trucks  and  carriages,  hose, 
buckets,  implements  and  apparatus  thereto  ap- 
pertaining, and  all  furniture  and  uniforms  of 
any  fire  company  or  department  organized  under 
any  law  of  this  state.  Eighth.  All  arms,  uni- 
forms and  accouterments  required  by  law  to  be 
kept  by  any  person.  Ninth.  All  court-houses, 
jails,  public  offices,  and  buildings,  lots,  grounds 
and  personal  property;  the  fixtures,  furniture, 
books,  papers  and  appurtenances  belonging  and 
pertaining  to  the  court-house,  jail  and  public 
offices  belonging  to  any  county  of  this  state,  and 
all  cemeteries,  public  squares,  parks  and  places, 
public  buildings,  town  halls,  markets,  buildings 
for  the  use  of  the  fire  departments  and  military 
organizations,  and  the  lots  and  grounds  thereto 
belonging  and  appertaining,  owned  or  held  by 
any  town  or  incorporated  city,  or  dedicated  by 
such  town  or  city  to  health,  ornament  or  public 
use,  or  for  the  use  of  any  fire  or  military  com- 
pany organized  under  the  laws  of  this  state:  but 
no    article    or    species   of    property    mentioned    in 


this  section  shall  be  exempt  from  execution  is- 
sued upon  a  judgment  recovered  for  its  price  or 
upon  a  mortgage  thereon.  Tenth.  The  earnings 
of  the  judgment  debtor  for  liis  personal  services 
rendered  at  any  time  within  thirty  days  next 
preceding  the  levy  of  execution  or  levy  of  at- 
tachment, when  it  shall  be  made  to  appear  by 
the  debtor's  affidavit  or  otherwise  ihat  such  earn- 
ings are  necessary  for  the  use  of  liis  family  resid- 
ing in  this  state,  supported  wholly  or  part  by 
his  labor."  Subsequently  to  the  enactment  of 
the  Code  of  Civil  Procedure  on  March  11  1872 
Practice  Act,  §  219,  was  amended  at  the  same 
session  of  the  legislature,  by  an  act  approved 
April  1,  1872  (Stats.  1871-72,  p.  8G4),  (1)  in 
the  introductory  paragraph,  omitting  the  word 
[^specially ';  (2)  in  subd.  1,  changing  •'one"  to 
two,"  before  "hundred";  (3)  in  subd.  2,  (a) 
adding  "one  sewing-machine"  after  "including," 
(b)  changing  "stoves,  stovepipe"  to  "stove, 
pipes,"  (c)  changing  "one  month"  to  "three 
months,"  and  (d)  adding,  at  end  of  subdivision, 
the  words  "and  two  cows  and  their  sucking 
calves  and  food  for  such  cows  for  one  month"; 
(4)  in  subd.  3,  (a)  adding,  after  "calves,"  the 
words__  "five  head  of  hogs,  two  dozen  domestic 
fowls,"  (b)  changing  "cows  or  mules"  to  "mules, 
cows,  hogs,  or  fowls,"  and  (c)  omitling  the 
comma  after  "seed"  (seed  grain);  (.5)  in  subd. 
4,  (a)  adding  "The"  as  first  word  of  subdivis- 
ion, (b)  adding,  after  "his  trade,"  the  words 
"the  notarial  seal  and  records  of  a  notary  pub- 
lic," (c)  changing  "chest"  to  "chests"  before 
"of  a  surgeon,"  (d)  changing  "and"  to  "or"  be- 
fore^ "dentist,"  (e)  adding,  at  end,  after  "gos- 
pel," the  words  "editors,  school  teachers,  and 
professors  of  music,  also  the  musical  instruments 
of  a  professor  of  music";  (6)  in  subd.  5,  (a) 
changing  "for"  to  "in"  before  "any  whim,"  and 
(b)  adding,  at  end,  after  "gear,"  the  words 
"and,  also,  his  mining  claim  actually  worked  by 
him,  not  exceeding  in  value  the  sum  of  one  thou- 
sand dollars";  (7)  in  subd.  8,  adding,  at  end, 
after  "person,"  the  words  "and  one  shot  or  rifle 
gun";  (8)  in  subd.  9,  (a)  omitting  "parks"  af- 
ter "squares"  and  "the"  before  "fire,"  and  (b) 
changing    "shall    be"     to     'is"     before     "exempt"; 

(9)  in  subd.  10,  (a)  omitting  "of"  before  "exe- 
cution," (b)  changing  "shall  be  made  to  appear" 
to  "appears,"  and  (c)  adding  "in"  before   "part"; 

(10)  adding  subd.  11,  "Eleventh.  The  shares 
held  by  a  member  of  a  homestead  association, 
duly  incorpor^ited,  not  exceeding  in  value  one 
thousand  dollars,  if  the  person  holding  the  shares 
is  not  the  owner  of  a  homestead  under  the  laws 
of  this  state;  all  the  nautical  instruments  and 
wearing-apparel  of  any  master,  officer,  or  sea- 
man on  any  steamer  or  other  vessel."  When  en- 
acted in  1872,  §  690  read:  "The  following  prop- 
erty is  exempt  from  execution,  except  as  herein 
otherwise  specially  provided:  1.  Chairs,  tables, 
desks,  and  books,  to  the  value  of  two  hundred 
dollars,  belonging  to  the  judgment  debtor;  2. 
Necessary  household,  table,  and  kitchen  furniture 
belonging  to  the  judgment  debtor,  including  one 
sewing-machine  and  one  piano,  in  actual  use  in  a 
family,  or  belonging  to  a  woman;  stoves,  stove- 
pipe, and  stove  furniture,  wearing-apparel,  beds, 
bedding,  and  bedsteads,  and  provisions,  actually 
provided  for  individual  or  family  use,  sufficient 
for  one  month;  3.  The  farming  utensils  or  im- 
plements of  husbandry  of  the  judgment  debtor; 
also,  two  oxen,  or  two  horses,  or  two  mules,  and 
their  harness,  one  cart  or  wagon,  and  food  for 
such  oxen,  horses,  or  mules  for  one  month;  also, 
all  seed  grain  or  vegetables  actually  provided, 
reserved,  or  on  hand  for  the  purpose  of  plant- 
ing or  sowing  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  the  sum  of  two 
hundred  dollars;  4.  Tools  or  implements  of  a 
mechanic  or  artisan  necessary  to  carry  on  his 
trade;  the  notarial  seal  and  records  of  a  notary 
public;  the  instruments  and  chest  of  a  surgean. 
physician,  surveyor,  and  dentist,  necessary  to 
the    exercise     of     their     profession,     with     their 


§690 


EXECUTION. 


816 


scientific  and  professional  libraries;  the  law  pro- 
fessional libraries  and  office  furniture  of  attor- 
neys, counselors,  and  judges,  and  the  libraries  of 
ministers  of  the  gospel ;  5.  The  cabin  or  dwell- 
ing of  a  miner,  not  exceeding  in  value  the  sum 
of  five  hundred  dollars;  also,  his  sluices,  pipes, 
hose,  windlass,  derrick,  cars,  pumps,  tools,  im- 
plements, and  appliances  necessary  for  carrying 
on  any  kind  of  mining  operations,  not  exceeding 
in  value  the  aggregate  sum  of  five  hundred  dol- 
lars; and  two  horses,  mules,  or  oxen,  with  their 
harness;  and  food  for  such  horses,  mules,  or 
oxen  for  one  month,  when  necessary  to  be  used 
in  any  whim,  windlass,  derrick,  car,  pump,  or 
hoisting  gear;  6.  Two  oxen,  two  horses,  or  two 
mules,  and  their  harness;  and  one  cart  or  wagon, 
one  dray  or  truck,  one  coupe,  one  hack  or  car- 
riage for  one  or  two  horses,  by  the  use  of  which 
a  cartman,  drayman,  truckman,  huckster,  ped- 
dler, hackman,  teamster,  or  other  laborer  habitu- 
ally earns  his  living;  and  one  horse,  with  vehi- 
cle and  harness,  or  other  equipments,  used  by  a 
physician,  surgeon,  or  minister  of  the  gospel,  in 
making  his  professional  visits,  with  food  for 
such  oxen,  horses,  or  mules  for  one  month;  7. 
Four  cows  with  their  sucking  calves,  and  four 
hogs,  with  their  sucking  pigs;  8.  Poultry  not 
exceeding  in  value  fifty  dollars;  9.  The  earnings 
of  the  judgment  debtor  for  his  personal  services, 
rendered  at  any  time  within  thirty  days  next 
preceding  the  levy  of  execution,  or'  levy  of  at- 
tachment, when  it  appears,  by  the  debtor's  affi- 
davit or  othei-Avise,  that  such  earnings  are 
necessary  for  the  use  of  his  family,  residing  in 
this  state,  supported  wholly  or  in  part  by  his 
labor;  10.  Tlie  shares  held  by  a  member  of  a 
homestead  association  duly  incorporated,  not  ex- 
ceeding in  value  one  thousand  dollars — if  the 
person  holding  the  share  is  not  the  owner  of  a 
homestead  under  the  laws  of  this  state;  11.  All 
moneys,  benefits,  privileges,  or  immunities  accru- 
ing, or  in  any  manner  growing  out  of  any  life 
insurance  on  the  life  of  the  debtor,  made  in  any 
company  incorporated  under  the  laws  of  this 
state,  if  the  annual  premiums  paid  do  not  exceed 
five  hundred  dollars;  12.  All  fire-engines,  hooks 
and  ladders,  with  the  carts,  trucks,  and  car- 
riages, hose,  buckets,  implements,  and  apparatus 
thereto  appertaining,  and  all  furniture  and  uni- 
forms of  any  fire  company  or  department  organ- 
ized under  any  law  of  this  state;  13.  All  arms, 
uniforms,  and  accouterments  required  by  law  to 
be  kept  by  any  person;  14.  All  court-houses, 
jails,  public  offices  and  buildings,  lots,  grounds, 
and  personal  property,  the  fixtures,  furniture, 
books,  papers,  and  appurtenances  belonging  and 
pertaining  to  the  court-house,  jail,  and  public 
offices  belonging  to  any  county  of  this  state;  and 
all  cemeteries,  public  squares,  parks,  and  places, 
public  buildings,  town  halls,  markets,  buildings 
for  the  use  of  fire  departments  and  military  or- 
ganizations, and  the  lots  and  grounds  thereto 
belonging  and  appertaining,  owned  or  held  by 
any  town  or  incorporated  city,  or  dedicated  by 
such  town  or  city  to  health,  ornament,  or  public 
use,  or  for  the  use  of  any  fire  or  military  com- 
pany organized  under  the  laws  of  this  state;  but 
no  article  or  species  of  property  mentioned  in 
this  section  is  exempt  from  execution  issued  upon 
a  judgment  recovered  for  its  price,  or  upon  a 
mortgage   thereon." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  94, 
(1)  in  subd.  2,  (a)  omitting  "and  one  piano,  in 
actual  use  in  a  family,  or  belonging  to  a  woman," 
(b)  changing  "stovepipe"  to  "stovepipes,"  (c) 
omitting  "and"  before  "provisions,"  (d)  chan- 
ging "one  month"  to  "three  months,"  and  (e) 
adding  at  end,  after  "three  months,"  the  words 
"and  three  cows  and  their  sucking  calves,  four 
hogs  with  their  sucking  pigs,  and  food  for  such 
cows  and  hogs  for  one  month"  (a  transposition 
and  amendment  of  subd.  7;  q.  v.,  infra);  (2)  in 
subd.  3,  adding  a  comma  after  "seed"  (seed, 
grain);  (3)  in  subd.  4,  (a)  adding  "The"  before 
"tools,"  as  first  word,  (b)  changing  "and  rec- 
ords" to  "rec.jrds  and  office  furniture"  before  "of 
a  notary,"  (c)  changing  "and"  to  "or"  before 
"dentist,"  and  (d)  changing  last  part  of  sub- 
division, beginning  "with  their  scientific."  to 
read,  "with  their  professional  libraries  and  neces- 
sary office  furniture;  the  professional  libraries  of 


attorneys,  judges,  ministers  of  the  gospel,  editors, 
school  teachers,  and  music  teachers,  and  their 
necessary  office  furniture;  also,  the  musical  in- 
struments of  music  teachers  actually  used  by 
them    in    giving    instructions";     (4)     in    subd.    5, 

(a)  omitting  "kind  of"  before  "mining  opera- 
tions," and  (b)  adding  at  end,  after  "hoisting 
gear,"  the  words  "and,  also,  his  mining  claim, 
actually  worked  by  him,  not  exceeding  in  value 
the  sum  of  one  thousand  dollars";  (5)  in  subd. 
6,  transposing  words  "Two  oxen,  two  horses" 
(Two    horses,    two    oxen);     (6)    in    subd.    7,     (a) 

amending  and  transposing  subject-matter  to  end 
of  subd.  2  (q.  v.,  ante),  and  (b)  transposing  sub- 
ject-matter of  subd.  8  to  this  subdivision  and 
changing  "fifty"  to  "twenty-five";  (7)  subd.  9 
renumbered  subd.  8,  (a)  omitting  "levy  of"  be- 
fore "attachment,"  (b)  changing  "wholly"  to 
"in  whole,"  and  (c)  adding  at  end,  after  "labor," 
the  words  "but  where  debts  are  incurred  by  any 
such  person,  or  his  wife  or  family,  for  the  com- 
mon necessaries  of  life,  the  one  half  of  such  earn- 
ings above  mentioned  are,  nevertheless,  subject 
to  execution,  garnishment,  or  attachment  to  sat- 
isfy debts  so  incurred";  (8)  subd.  10  renum- 
bered subd.  9,  (a)  changing  "share"  to  "shares" 
after  "holding  the,"  and  (b)  adding  at  end,  after 
"state,"  a  new  sentence  (subd.  12  of  present 
section),  "All  the  nautical  instruments  and  wear- 
ing-ai>parel  of  any  master,  oflicer,  or  seaman  of 
any  steamer  or  other  vessel";  (9)  subd.  11  re- 
numbered subd.  10;  (10)  subd.  12  renumbered 
subd.  11;  (11)  subd.  13  renumbered  subd.  12, 
adding  at  end,  after  "any  person,"  the  words 
"and  also  one  gun,  to  be  selected  by  the  debtor" 
(thus  making  this  subdivision  the  present  subd. 
14);  (12)  subd.  14  renumbered  subd.  13,  (a) 
omitting  "court-house"  before  "jail,"  (b)  adding 
"or  to  an}'  city  and  county"  after  "county,"  (c) 
omitting,  after  "this  state,"  the  word  "but,"  (d) 
beginning  a  new  sentence  with  the  words  "N'> 
article,"  and  adding  "however"  after  these  words, 
and  (e)  adding  in  last  line,  before  "a  mortgage 
thereon,"  the  words  "a  judgment  of  foreclosure 
of";    subd.   13   then  ending  the   section. 

3.  Amended  by  Code  Amdts.  1877-78,  p.  101, 
(1)  in  subd.  2,  (a)  omitting  "stove"  before 
"furniture,"  and  (b)  adding,  after  "bedsteads," 
the  words  "hanging  pictures,  oil-paintings,  and 
drawings  drawn  or  painted  by  any  member  of  the 
family,  and  family  portraits  and  their  necessary 
frames";  (2)  in  subd.  3,  adding  at  end,  after 
"dollars,"  the  words  "and  seventy-five  beehives, 
and  one  horse  and  vehicle  belonging  to  any  per- 
son who  is  maimed  or  crippled,  and  the  same  is 
necessary  in  his  business";  (3)  in  subd.  4,  add- 
ing at  end,  after  "instructions,"  the  words  "and 
all  the  indexes,  abstracts,  books,  papers,  maps,  and 
office  furniture  of  a  searcher  of  records,  neces- 
sary to  be  used  in  his  profession";  (4)  in  subd. 
6,    (a)    adding    "constable"    after    "surgeon,"    and 

(b)  changing  the  words  "in  making  his  profes- 
sional visits"  to  "in  the  legitimate  practice  of  his 
profession  or  business";  (.5)  in  suhd.  10  (origi- 
nal code  subd.  11),  omitting,  after  "of  the 
debtor,"  the  words  "made  in  any  company  in- 
corporated under  the  laws  of  this  state";  (6)  in 
subd.  13,  making  a  new  paragraph  of  the  sen- 
tence   beginning    "No    article." 

4.  Amended  by  Stats.  1887,  p.  99,  (1)  add- 
ing subd.  7,  which  read  same  as  at  present,  ex- 
cept that  it  had  the  word  "a"  instead  of  "his" 
before  "livelihood";  (2)  subd.  7  renumbered 
subd.  8  (its  original  code  number);  (3)  suhd.  8 
renumbered  subd.  9  (its  original  code  number), 
changing  "debtor's"  to  "debtors'";  (4)  subds.  9 
and  10  renumbered  subds.  10  and  11,  respectively 
(their  original  code  numbers)  ;  (5)  subd.  11  re- 
numbered subd.  12  (its  original  code  number), 
changing  "law"  to  "laws"  (sic)  ;  (6)  subd.  12 
renumbered  subd.  13  (its  original  code  number)  ; 
(7)  subd.  13  renumbered  subd.  14  (its  original 
code  number),  (a)  omitting  (sic)  "any"  before 
"fire  or  military,"  and  (b)  adding  to  end  of  sec- 
tion, as  a  sentence,  the  paragraph  beginning  "No 
article"    (a   retrogression). 

5.  Amended  by  Stats.  1897,  p.  180,  (1)  in 
subd.  2,  (a)  changing  "stoves"  to  "stove,"  (b) 
omitting  the  comma  after  "stovepipes"  (stove- 
pipes and  furniture),  and  (c)  adding  at  end. 
after   "one   month,"    the  words   "also,   one   piano. 


817 


\VIIAT   KXEMI'T   FROM    EXECI'TION. 


§690 


one  ghntgun,  and  one  rifle":  (2)  in  subd.  3,  n(M- 
ing,  aftpr  "debtor,"  the  words  "not  pxceedinj;  in 
valuo  the  sum  of  one  thousand  dollars";  (3)  in 
subd.  4,  addiiiK  at  end,  after  "his  profession," 
the  last  two  divisions  of  the  subdivision,  bocio- 
ning  "also,  the  typewriters,"  whirh  rend  as  at 
present,  exrept  that  the  last  division  had  the  word 
"its"  instead  of  "the"  bi-f.ire  "owner  for  the"  ; 
(4)  adding  subd.  9,  reading,  "Seamen  and  sea- 
going fishermen's  wages  and  earnings,  not  ex- 
ceeding one  hundred  dollars";  (5)  subd.  9  (origi- 
nal code  number)  renumbered  subd.  10,  (a) 
restoring  "debtors'"  to  "debtor's,"  and  (b)  add- 
ing, after  "necessaries  of  life,"  the  words  "or 
have  been  incurred  at  a  time  when  the  debtor 
had  no  family,  residing  in  this  state,  supported 
in  whole  or  in  part  by  his  labor,"  this  subdivis- 
ion then  reading  as  at  present,  except  that  it 
had  the  word  "are"  instead  of  "is"  before 
"nevertheless";  (6)  subds.  10,  11,  12,  and  13 
(original  code  numbers)  renumbered  subds.  11, 
12,  13,  and  14,  respectively;  (7)  subd.  14 
(original  code  number)  renumbered  subd.  15, 
(a)  restoring  the  word  "any"  before  "fire  or 
military,"  (b)  adding  subd.  16.  reading.  "All 
material  purchased  in  good  faith  for  use  in 
the  construction,  alteration,  or  repair  of  any 
building,  mining  claim,  or  other  improvement,  as 
long  as  in  good  faith  the  same  is  about  to  be  ap- 
plied to  the  construction,  .ilteration,  or  repair  of 
such  building,  mining  claim,  or  other  improve- 
ment," and  (c)  making  a  paragraph  of  the  sen- 
tence beginning  "No  article"    (a  restoration). 

6.  Amended  by  Stats.  1899,  p.  19,  (1)  add- 
ing as  a  flush  paragraph  italic  heading,  the  word.s 
"What  exempt  from  execution";  (2)  in  subd.  2, 
omitting,  in  first  line,  the  comma  after  "table" 
(table  and  kitchen  furniture);  (3)  in  subd.  14 
(original  subd.  13),  changing  "All  arms,  uni- 
forms, and  accouterments"  to  "All  uniforms, 
arms,  accouterments";  (4)  adding  subd.  17,  read- 
ing the  same  as  at  present,  down  to  the  words 
"engines,  etc.,"  but  having,  after  these  words, 
"to  the  value  of  one  thousand  dollars." 

7.  Amended  by  Stats.  1901,  p.  21,  becoming 
a  law,  under  constitutional  provision,  without 
governor's  approval,  the  amendments  being  those 
of  Stats.  1903  (q.v.,  infra),  except  that  (1)  in 
subd.  4,  it  had  the  pronoun  "his"  instead  of 
"their"  before  "profession"  and  before  "profes- 
sional," and  "library"  instead  of  "libraries";  (2) 
in  subd.  13,  it  had  the  word  "any"  instead  of 
"the"  before  "laws." 

8.  Amendment  by  Stats.  1901,  p.  153;  un- 
constitutional.     See  note  ante,  §  5. 

9.  Amended  by  Stats.  1903,  p.  114,  (1) 
omitting  the  italic  head  added  in  1899;  (2)  in 
subd.  2,  (a)  adding  "and  fuel"  after  "provis- 
ions," and  (b)  changing  "sucking"  to  "suckling." 
in  both  instances  (the  subdivision  then  reading 
as  at  present);  (3)  in  subd.  3,  (a)  substituting 
"buggy  and  two  wagons"  for  "wagon,"  and  (b) 
omitting  "and"  before  "one  horse";  (4)  in  subd. 
4,  adding  the  words  "including  one  safe  and  one 
typewriter"  (the  subdivision  then  reading  as  at 
present)  ;  (5)  in  subd.  5,  changing  the  word  "in" 
to  "on"  before  "any  whim";  (6)  in  subd.  7,  chan- 
ging "a"  to  "his"  before  "livelihood"  (the  subdi- 
vision then  reading  as  at  present);  (7)  in  subd. 
8,  changing  "twenty-five"  to  "seventy-five"  (the 
present  reading  of  the  subdivision);  (8)  changing 
subd.  9  (which  was  added  in  1897)  to  read  as  at 
present;  (9)  in  subd.  10  (original  code  subd.  9), 
changing  "are"  to  "is"  before  "nevertheless"  (the 
present  reading  of  the  subdivision  )  ;  (10)  in  subd. 
11  (original  code  subd.  10),  making  a  new  sub- 
division (subd.  12)  of  the  sentence  beginning 
"All  the  nautical,"  which  was  added  in  1875-76, 
the  phraseology  of  which  has  never  been  changed; 
(11)  subd.  12  (original  code  subd.  11)  renum- 
bered subd.  18,  and  changed  to  read  as  at  present 
(see    infra,    note    to    subd.    18)  ;     (12)     in    subd. 

13  (original  code  subd.  12),  the  word  "any' 
changed    to    "the"    before    "laws";    (13)    in    subd. 

14  (original  code  subd.  13),  changing  words 
"All  uniforms,  arms,  accouterments"  to  read  as 
at  present;  (14)  in  subd.  15  (original  code  subd. 
14),  omitting,  after  "county,"  the  words  "or  to 
any  city  and  county";  (15)  in  subd.  16  (added 
in  1897),  adding,  in  first  line,  "not  exceeding  one 
thousand    dollars    in    value";     (16)     in    subd.     17 

1  Fair. — 52 


(added  in  1897),  changing;  the  phr.iscology  after 
"engines,  etc.,"  to  read  as  at  present;  (17)  add- 
ing subd.  18,  nn  aniendment  of  original  code 
subd.  II,  reading  as  at  pnsont  (see  supra,  note 
to  subd.  12):  (18)  adding  subd.  19,  which  re.id 
ns  at  preHenl;  (19)  adding  "or  other  lien"  in 
last  line  of  final  paragraph,  making  this  para- 
graph read  as  at  present. 

lO,  Amended  by  Stats.  1907,  p.  882.  (1)  In 
introductory  paragraph,  adding  "or  attachment"; 
(2)  in  subd.  3,  omitting  the  comma  after  "seed" 
(seed  grain);  (3)  in  subd.  5,  (a)  omitting  a 
comma  after  "mining  operations"  (mining  opera- 
tions not  exceeding  in  value,  etc.),  and  (b)  omit- 
ting a  comma  (sic)  after  "car"  (car  pump);  (4) 
in  subd.  13,  omitting  a  comma  (sic)  after  "hose" 
(hose  buckets);  (5)  in  subd.  15,  (a)  omitting 
the  words  "and  pertaining"  before  "to  the  jail," 
and  (b)  adding  "and  apijertainiiig"  before  "to 
any  county":    (6)    adding  subd.  20. 

Construction  of  statute.  Statutes  ex- 
empting property  from  execution  are  en- 
acted on  the  ground  of  public  policy,  for 
the  benevolent  purpose  of  saving  debtors 
and  their  families  from  want  by  reason 
of  misfortune  or  improvidence;  and  the 
general  rule  now  is,  to  construe  such  stat- 
utes liberally,  so  as  to  carry  out  the  in- 
tention of  the  legislature,  and  the  humane 
purposes  designed  by  the  law-makers. 
Holmes  v.  Marshall,  14.5  Cal.  777;  104  Am. 
St.  Rep.  86;  2  Ann.  Cas.  88;  69  L.  R.  A. 
67;  79  Pac.  534;  Van  Lue  v.  Wahrlich- 
Cornett  Co.,  12  Cal.  App.  749;  108  Pac. 
717;  and  see  Estate  of  McManus,  87  Cal. 
292;  22  Am.  St.  Rep.  250;  25  Pac.  413; 
Spence  v.  Smith.  121  Cal.  536;  66  Am.  St. 
Rep.  62;  53  Pac.  653.  The  first,  second,  and 
tenth  subdivisions  of  this  section  proba- 
bly apply  to  all  vocations  mentioned  in 
the  section.  Van  Lue  v.  Wahrlich-Cornett 
Co.,  12  Cal.  App.  749;  108  Pac.  717.  The 
same  person  cannot  claim  both  the  farm- 
er's and  the  teamster's  cxemi)tion;  and  if 
he  is  entitled  to  an  exemption  either  as  a 
farmer  or  as  a  teamster,  but  is  in  doubt, 
he  may  plead  both  claims,  and  have  the 
benefit  of  the  one  best  established  bj' 
proof.  Van  Lue  v.  Wahrlich-Cornett  Co.,. 
12  Cal.  App.  749;  108  Pac.  717. 

Nature  of  exemption.  Exemption  of 
propert}'  from  execution  is  a  personal 
privilege,  which  may  be  claimed  or  waived 
at  the  option  of  the  debtor.  Kevbers  v. 
McComber,  67  Cal.  395;  7  Pac.  838. 

Provisions  for  family.  Money  with 
which  to  purchase  provisions  sufficient  for 
family  use  is  not  exempt,  under  this  sec- 
tion; but  where  the  money  has  been  used 
in  good  faith  for  that  purpose,  before  the 
parties  are  called  upon  to  account  for  it, 
and  the  amount  is  no  more  than  would 
reasonably  be  required  to  support  the 
family  for  three  months,  the  claim  to  ex- 
emption will  be  sustained.  Gray  v.  Bru- 
nold,  140  Cal.  615;  74  Pac.  303. 

Farming  utensils,  etc.  The  Practice  Act 
did  not,  in  ex])ress  terms,  make  the  ex- 
emption under  this  section  applicable  only 
to  such  judgment  debtors  as  were  engaged 
in  the  business  of  farming  at  the  date  of 
the  levy;  but  it  is  obvious  that  such  was 
its    intention.     Robert    v.    Adams,    38    CaL 


§690 


EXECUTION. 


818 


3S3;  99  Am.  Dec.  413;  and  see  Erusie  v. 
Griffith,  34  Cal.  302;  91  Am.  Dec.  695. 
The  third  subdivision  of  this  section  re- 
lates exclusively  to  persons  engaged  in 
farming  (Murphy  v.  Harris,  77  Cal.  194; 
19  Pae.  377;  Brusie  v.  Griffith,  34  Cal.  302; 
91  Am.  Dec.  69.5;  Robert  v.  Adams,  38  Cal. 
383;  99  Am.  Dec.  413;  Murphy  v.  Harris, 
77  Cal.  194;  19  Pac.  377);  and  property 
used  in  farming  cannot  be  claimed  as 
exempt,  unless  the  judgment  debtor  was, 
at  the  date  of  the  levy,  engaged  in  the 
business  of  farming.  Howell  v.  Boyd,  2 
Cal.  App.  486;  84  Pac.  315.  The  exemp- 
tions of  the  third  subdivision  are  to  en- 
able the  judgment  debtor  to  earn  a  support 
by  farming,  and  secure  to  him  the  means 
appropriate  to  that  end,  and  the  exemp- 
tion of  oxen,  horses,  or  mules  applies  to 
such  only  as  are  suitable  and  intended  for 
the  ordinary  work  conducted  on  a  farm. 
Eobert  v.  Adams,  38  Cal.  383;  99  Am.  Dec. 
413;  Brusie  v.  Griffith,  34  Cal.  302;  91  Am. 
Dec.  695.  The  legislature,  by  the  phrase, 
"farming  utensils  or  implements  of  hus- 
bandry of  the  judgment  debtor,"  meant 
such  utensils  or  implements  as  are  needed 
and  used  by  the  farmer  in  conducting  his 
own  farming  operations:  it  was  not  in- 
tended that  all  farming  machinery  which 
a  farmer  may  own  should  be  exempt,  be- 
cause, while  he  uses  it  chiefly  by  renting 
it  out,  or  in  doing  work  on  others'  farms 
for  hire,  he  still  uses  it  to  a  small  extent 
on  his  own  land.  Estate  of  Baldwin,  71 
Cal.  74;  12  Pac.  44.  A  combined  harvester 
is  a  farming  utensil  and  an  implement  of 
husbandry,  irrespective  of  its  value,  and 
if  used  chiefly  for  the  farming  purposes 
of  the  debtor,  although  occasionally  used 
for  others,  is  exempt  from  execution  (Es- 
tate of  Klemp,  119  Cal.  41;  63  Am.  St. 
Rep.  69;  39  L.  E.  A.  340;  50  Pac.  1062; 
and  see  Spence  v.  Smith,  121  Cal.  536;  66 
Am.  St.  Rep.  62;  53  Pac.  653);  but  an  ex- 
pensive thrashing  outfit,  consisting  of  a 
thrashing-engine,  water-tanks,  a  thrasher, 
a  derrick  and  forks,  a  seed-cleaner,  a 
feeding-machine,  a  feeding-rack,  and  a 
cook-house,  owned  in  common  by  several 
farmers,  and  used  by  them  to  a  limited  ex- 
tent on  their  own  lands,  but  principally  in 
doing  work  for  others  for  hire,  is  not 
exempt  from  execution.  Estate  of  Baldwin, 
71  Cal.  74;  12  Pac.  44.  The  debtor  is  not 
required  to  use  the  exempt  farming  imple- 
ments or  property  exclusively  in  his  voca- 
tion. Spence  v.  Smith,  121  Cal.  536;  66 
Am.  St.  Rep.  62;  53  Pae.  653.  Where  the 
debtor  has  more  horses  than  the  number 
exempt  by  law,  he  has  the  right  to  elect 
which  he  shall  claim  as  exempt,  and  it 
devolves  ujion  him  to  do  so  within  a  rea- 
sonable time  after  notice  of  the  levy.  Key- 
bers  v.  McComber,  67  Cal.  395;  7  Pac.  838. 
This  section  is  restrictive  only  as  to  the 
number  and  use  of  the  horses  used  in  hus- 
bandry;  and  the  exemption  of  two  horses 


is  allowed,  where  they  are  engaged  in  hus- 
bandry, and  their  value  and  sex  is  imma- 
terial. McCue  V.  Tunstead,  65  Cal.  506;  4 
Pac.  510.  A  stallion,  not  used  as  a  work- 
horse on  a  farm,  is  not  exempt  from  execu- 
tion. Robert  v.  Adams,  38  Cal.  383;  99 
Am.  Dec.  413.  It  is  not  necessary,  in  order 
to  make  horses  exempt,  that  the  owner 
shall  devote  himself  exclusively  to  hus- 
bandry: they  are  exempt  because  owned 
by  a  judgment  debtor  engaged  in  hus- 
bandry. McCue  V.  Tunstead,  65  Cal.  506; 
3  Pac.  863.  There  is  no  ground  for  exclud- 
ing an  implement  from  the  operation  of 
the  statute,  merely  because  it  is  an  im- 
provement, and  supplants  a  former  imple- 
ment used  with  less  effectiveness  for  the 
same  purpose.  Estate  of  Klemp,  119  Cal. 
41;  63  Am.  St.  Rep.  69;  39  L.  R.  A.  340; 
50  Pac.  1062.  The  character  and  amount 
of  exempt  property  is  purely  a  matter  of 
legislative  policy;  and  where  the  legis- 
lature has  determined  that  the  farming 
utensils  and  implements  of  husbandry  of 
a  judgment  debtor  shall  be  exempt,  the 
court  is  not  authorized  to  refuse  exemption 
because,  in  its  opinion,  they  are  not  neces- 
sary for  the  judgment  debtor,  or  because 
the  farming  operations  are  carried  on  on 
a  greater  szale  than  the  court  deems  neces- 
sary. Spence  v.  Smith,  121  Cal.  536;  66 
Am.  St.  Rep.  62;  53  Pac.  653;  Estate  of 
Klemp,  119  Cal.  41;  63  Am.  St.  Rep.  69; 
39  L.  R.  A.  340;  50  Pac.  1062.  The  statute 
has  fixed  no  limit  to  the  amount  of  land 
which  a  judgment  debtor  may  cultivate 
by  farming;  and  if  the  farming  utensils 
which  he  has  are  necessary  for  the  proper 
cultivation  of  his  land,  they  are  exempt 
from  execution,  irrespective  of  whether  he 
would  need  them  for  cultivating  a  smaller 
tract  of  land.  Spence  v.  Smith,  1€1  Cal. 
536;  66  Am.  St.  Rep.  62;  53  Pac.  653. 
Husbandry  is  the  business  of  a  farmer, 
comprehending  the  various  branches  of 
agriculture.  McCue  v.  Tunstead,  65  Cal. 
506;  4  Pac.  510.  The  law  does  not  recog- 
nize classes  of  husbandry,  nor  limit  its 
exemption  of  farming  utensils  and  imple- 
ments of  husbandry  to  one  particular  class 
of  several  that  may  be  followed  by  the 
farmer,  and  will  not  inquire  whether  they 
were  used  in  agriculture,  horticulture,  or 
viticulture.  Estate  of  Slade,  122  Cal.  434; 
55  Pac.  158. 

Tools  or  implements  of  mechanic  or  arti- 
san. The  law  does  not  require  that  a 
mechanic  shall  be  employed  as  a  journey- 
man, in  order  to  be  entitled  to  the  exemp- 
tion; nor  is  the  phrase,  "necessary  to  carry 
on  his  trade,"  used  in  such  a  strict  sense, 
that,  because  a  journeyman  machinist  can 
secure  employment  with  a  manufacturer 
who  will  supply  the  instrument,  it  is  not 
necessary  to  the  trade;  and  a  lathe  and  ap- 
pliances, costing  about  $250,  and  used  for 
shaping  wood  or  metal,  which  are  neces- 
sary to  carry  on  the  business  of  a  mechanic 


819 


V7fIAT   EXEMPT   P^ROM    EXECUTION. 


§690 


and  machinist,  is  a  tool,  and  may  be  prop- 
erly set  apart  to  him  in  insolvency  pro- 
■ceediufjs  as  exempt  from  execution.  In  re 
Robb,  99  Cal.  2U2;  ^57  Am.  St.  Rep.  48;  33 
Pac.  890.  Whether  a  whole  printing  |)lant 
is  exempt  or  not,  or  is  necessary  to  the 
■carryinfj  on  of  the  trade  of  a  printer,  con- 
ceding' su(di  printer  to  be  a  mechanic  or 
artisan  within  the  meaning  of  tliis  section, 
is  a  question  of  fact  to  be  submitted  to  the 
jury,  under  proper  instructions:  printing- 
presses  operated  by  steam,  a  paper-cutting 
machine,  etc.,  may  be  regarded  as  the  tools 
or  implements  of  a  printer;  but  they  are 
exempt  only  so  far  as  they  are  necessary 
to  carry  on  his  trade  and  not  all  are  ex- 
■empt  that  he  may  have  acquired  and  useil 
in  his  business.  In  re  Mitchell,  102  Cal. 
534;  .'iO  Pac.  840.  A  jeweler's  safe,  owned 
and  used  in  the  business  of  a  jeweler  and 
watch-repairer,  is  exempt  from  execution, 
and  should  be  set  apart  as  such  to  him  in 
insolvency  proceedings.  Estate  of  Mc- 
Manus,  87  Cal.  292;  22  Am.  St.  Rep.  250,- 
10  L.  R.  A.  567;  25  Pac.  413. 

Cabin  and  claim  of  miner.  There  is  no 
inconsistency  between  the  right  to  the  ex- 
^mjition  of  the  cabin  or  dwelling  of  a 
miner  under  the  provisions  of  the  fifth  sub- 
division of  this  section,  and  the  claim  of 
a  homestead  provided  elsewhere  in  the 
statute:  the  homestead  is  for  the  benefit 
and  protection  of  the  family,  and  the  law 
providing  for  its  selection  should  be  lib- 
erally construed  so  as  to  effect  this  end; 
the  exemption  of  the  mining  claim,  under 
this  subdivision,  does  not  depend  upon 
the  residence  thereon,  but  its  selection  as 
a  homestead  does;  nor  does  the  homestead 
right  depend  upon  the  character  of  the 
title  held  by  the  party  claiming  it:  it  is 
impressed  upon  the  land  to  the  extent  of 
the  interest  of  the  claimant  in  it,  not  on 
the  title  merely.  Gaylord  v.  Place,  98  Cal. 
472;  33  Pac.  484;  and  see  Heathman  v. 
Holmes,  94  Cal.  291 ;  29  Pac.  404. 

Horses,  etc.,  of  draymen  and  other  labor- 
ers. To  entitle  a  party  to  claim,  as  exempt 
from  execution,  two  horses,  he  must  show 
that  he  is  a  cartman,  drayman,  truck- 
man, huckster,  peddler,  teamster,  or  other 
laborer,  and  that  he  habitually  earns  his 
living  by  the  use  of  such  horses,  etc.  Dove 
V.  Nunan,  62  Cal.  399;  and  see  Brusie  v. 
•Griffith,  34  Cal.  302;  91  Am.  Dec.  695.  The 
requirement  of  the  sixth  subdivision,  that 
the  party  must  "habitually"  earn  his  living 
by  the  use  of  the  articles  claimed  to  be 
exempt,  is  imperative  (Murphy  v.  Harris, 
77  Cal.  194;  19  Pac.  377);  but  it  is  not 
necessary  that  a  party  claiming  the  ex- 
emption of  two  horses  and  a  hack  shall  be 
actually  using  the  same  at  the  time  of 
seizure:  it  is  sufficient  if  he  is  engaged  in 
the  business  as  a  means  of  livelihood,  even 
though  the  horses  are,  at  the  time  of  seiz- 
ure, temporarily  at  pasture,  and  the  hack 
is   undergoing  repairs.    Forsyth   v.   Bower, 


54  Cal.  639.  The  fact  that  a  person,  with 
his  wife,  conducted  a  bakery  upon  a  lim- 
ited scale,  and  sold  bread  at  the  shop, 
while  he  daily  peddled  bread  throughout 
the  town  and  at  the  railroad  depot  ujiou 
the  arrival  of  trains,  etc.,  does  not  dej)rive 
him  of  his  right  as  a  pe<ldler,  under  the 
sixth  subdivision;  but  the  debtor's  right 
to  exemjition  is  limited  by  the  exi)rcss  pro- 
visions of  the  statute;  hence,  a  bread-box 
used  by  the  debtor  in  his  business  as  a 
peddler  of  bread,  not  being  named  in  the 
statute  as  one  of  the  articles  exempt  from 
execution,  is  not  exempt  therefrom.  Stan- 
ton V.  French,  91  Cal.  274;  25  Am.  St.  Rep. 
174;  27  Pac.  657.  Where  the  debtor  gave 
notice  to  the  officer,  six  days  after  the 
levy,  that  he  claimed  two  horses  and  their 
harness  as  exempt  from  execution,  this 
notice,  in  the  absence  of  a  showing  to  the 
contrary,  was  within  a  reasonable  time. 
Keybers  v.  McComber,  67  Cal.  395;  7  Pac. 
838.  In  claim  and  delivery  against  an 
officer  for  two  horses,  or  their  value,  al- 
leged to  be  exempt,  and  wrongfully  taken 
by  the  sheriff  under  writs  of  attachment, 
where  the  great  preponderance  of  the  evi- 
dence was  to  the  effect  that  the  horses 
were  not  used  habitually  by  the  claimant 
as  a  huckster  or  peddler  in  earning  his 
living,  the  judgment  or  order  of  the  court 
refusing  to  allow  the  exemption  will  not 
be  reversed  on  appeal.  Paulson  v.  Nunan, 
72  Cal.  243;  13  Pac.  626. 

Earnings  of  judgment  debtor.  It  is  the 
relation,  and  dependence  of  the  relation, 
and  not  the  aggregation  of  the  individuals, 
that  constitutes  a  family:  a  man's  wife 
and  minor  children,  though  residing  in  a 
different  place,  constitute  "his  family"; 
but  the  mother  of  an  adult  judgment 
debtor,  who  permanently  resides  apart 
from  him,  and  to  whose  sujtport  he  is  under 
no  legal  obligation  to  contribute,  is  not  a 
member  of  his  "family,"  as  that  word  is 
used  in  the  tenth  subdivision  of  this  sec- 
tion. Lawson  v.  Lawson,  158  Cal.  446;  111 
Pac.  354.  The  provisions  of  the  tenth 
subdivision  are  not  applicable  in  setting 
aside  moneys  exempt  from  execution, 
where  there  is  no  family.  W'interhalter  v. 
Workmen's  etc.  Ass'n,  75  Cal.  245;  17  Pac.  1. 
Life  insurance.  Prior  to  the  amendment 
of  this  section  in  1903,  where  the  statute 
provided  that  money's  accruing  upon  an 
insurance  policy  issued  upon  the  life  of  a 
judgment  debtor  were  exempt  if  the  an- 
nual jircmiums  paid  thereon  did  not  exceed 
five  hundred  dollars,  it  as  jdainly  pro- 
vided that  if  the  annual  premiums  i)aid 
did  exceed  five  hundred  dollars,  no  i>art 
of  the  same  was  exempt,  as  though  this 
had  been  added  in  words  (Estate  of 
Brown,  123  Cal.  399;  69  Am.  St.  Rep.  74; 
55  Pac.  1055);  and  a  life-insurance  policy, 
by  its  terms  payable  to  the  ailministrator 
of  the  insured,  the  annual  premiums  of 
which  did  not  exceed  five  hundred  dollars, 


§690 


EXECUTION. 


8201 


although  set  apart  under  the  statute,  was 
administered  upon,  and  until  so  set  apart 
was  a  part  of  the  estate;  and  the  order 
Betting  it  apart  was  a  species  of  distribu- 
tion to  the  widow,  of  part  of  the  estate 
of  the  decedent.  Estate  of  Miller,  121  Cal. 
353;  53  Pae.  906.  The  words  "exempt 
from  execution,"  mean  exempt  from  any 
execution;  and  the  exemption  from  execu- 
tion of  life-insurance  money  extends  not 
only  against  the  debts  of  the  person  whose 
life  was  insured,  and  who  paid  the  pre- 
miums, but  also  to  the  debts  of  the  bene- 
ficiary to  whom  it  is  payable  after  the 
death  of  the  insured.  Holmes  v.  Marshall, 
145  Cal.  777;  104  Am.  St.  Eep.  86;  2  Ann. 
Cas.  88;  69  L.  E.  A.  67;  79  Pac.  534. 
Where  a  life-insurance  policy  is  made  pay- 
able to  the  administrator  generally,  the 
heirs  are  not  vested  with  any  interest  in 
or  right  in  reference  to  the  policy:  such 
policy  belongs  to  the  estate.  Estate  of 
Miller,  121  Cal.  353;  53  Pac.  906.  Insur- 
ance-money, coming  to  the  surviving  wife 
directly  as  beneficiary,  is  exempt  from 
execution,  as  well  as  that  coming  to  her 
indirectly  through  the  estate  and  the  order 
setting  it  apart:  the  statute  provides  that 
all  property  exempt  from  execution  shall 
be  set  apart  for  the  use  of  the  surviving 
husband  or  wife.  Holmes  v.  Marshall,  145 
Cal.  777;  104  Am.  St.  Rep.  86;  2  Ann.  Cas. 
88;  69  L.  R.  A.  67;  79  Pac.  534. 

Pension-money.  Pension-money,  being 
exempt  from  execution,  no  rights  of  credi- 
tors are  to  be  considered  in  its  distribu- 
tion; and  it  is  not  subject  to  the  fees  and 
commissions  of  the  public  administrator 
and  his  attorney.  Treadway  v.  Board  of 
Directors,  14  Cal.  App.  75;  111  Pae.  111. 

Grain  from  homestead.  Grain  harvested 
from  a  homestead  is  net  exempt  from  exe- 
cution.   Horgan  v.  Amick,  62  Cal.  401. 

Patent  rights.  A  patent  right  is  not 
exempt  from  seizure  and  sale.  Pacific  Bank 
V.  Robinson,  57  Cal.  520;  40  Am.  Rep.  120. 

Partnership  property.  Partnership  prop- 
erty is  not  exempt;  and  where  a  person 
forms  a  partnership  with  one  or  more  than 
one  person,  and  fails  to  retain  exclusive 
ownership  of  his  tools  and  implements, 
and  allows  the  use  of  them  to  his  part- 
ners, he  loses  entirely  the  benefit  of  the 
statutory  exemptions  as  to  such  property. 
Cowan  v.  Creditors,  77  Cal.  403;  11  Am.  St. 
Eep.  294;  19  Pac.  755. 

Insurance-money  on  exempt  property. 
Where  household  goods  and  wearing-ap- 
parel, exempt  from  execution,  are  lost  by 
fire,  money  due  therefor  upon  a  fire-in- 
surance policy  is  also  exempt.  Langley  v. 
Finnall,  2  Cal.  App.  231;  83  Pac.  291. 

Patent  right.    Hee  note  ante,  §  688. 

Burden  of  proof  on  party  claiming  ex- 
emption. Where  a  party  sues  to  recover 
property  on  the  ground  that  it  is  exempt 
from  execution,  the  burden  is  upon  him  to 
show  affirmatively   that   he   is   entitled   to 


the  exemption.    Murphy  v.  Harris,  77  Cal.. 
194;  19  Pac.  377. 

Power  and  duty  of  courts.  Courts  have- 
power  over  their  own  jirocess,  and  to  set 
aside  the  levy  of  a  writ  of  attachment  or 
execution  upon  exempt  property.  Holmes 
V.  Marshall,  145  Cal.  777;  104  Am.  St.  Rep. 
86;  2  Ann.  Cas.  88;  69  L.  R.  A.  67;  79  Pac. 
534.  It  is  the  duty  of  the  superior  court, 
in  insolvency  proceedings,  to  exempt  and 
set  aside  for  the  use  of  the  insolvent  such, 
liersonal  property  as  is  exempt  from  execu- 
tion. Noble  V.  Superior  Court,  109  Cal.. 
523;  42  Pac.  155. 

Homestead  exemption.  The  homestea'a 
exemption  is  purely  a  statutory  right,  lim- 
ited by  statutory  conditions;  and  the  court 
cannot  impose  restrictions  upon  the  right 
of  the  creditor  to  enforce  a  sale,  in  addi- 
tion to  those  imposed  by  statute.  Lean  v. 
Givens,  146  Cal.  739;  106  Am.  St.  Rep.  79; 
81  Pac.  128.  The  value  of  a  homestead 
is  finally  determined  by  exposing  the  prop- 
erty for  sale;  and  if  a  bid  is  not  made  in 
excess  of  the  amount  of  the  exemi)tion,. 
the  proceedings  are  ended;  but  if  a  larger- 
amount  is  offered,  it  conclusively  proves 
that  the  value  exceeds  the  exemption,  and 
in  that  event  the  excess  is,  of  right,  ap- 
plicable on  the  debt,  and  the  claimant  has 
no  just  cause  to  complain.  Lean  v.  Givens,. 
146  Cal.  739;  106  Am.  St.  Rep.  79;  81  Pac. 
128.  A  homestead  right  acquired  subse- 
quently to  the  attachment  lien  defeats 
such  lien;  and  the  levy  of  an  execution,, 
in  like  manner,  does  not  have  the  effect 
to  prevent  the  premises  from  being  im- 
pressed with  the  homestead  character  at 
any  time  before  sale.  Beaton  v.  Reid,  111 
Cal.  484;  44  Pac.  167;  and  see  McCracken. 
V.  Harris,  54  Cal.  81;  Sullivan  v.  Hendrick- 
son,  54  Cal.  258;  Wilson  v.  Madison,  58 
Cal.  1.  The  title  acquired  by  patent  from 
the  United  States  government  by  a  home- 
stead claimant  is  exempt  from  execution 
for  any  debt  contracted  prior  to  the  issu- 
ance of  the  patent;  but  where  the  i>atentee- 
conveys  all  his  interest  in  such  property, 
and  subsequently  acquires  title  by  deed  of 
grant  from  the  grantee,  he  takes  it,  as  he- 
would  in  the  case  of  a  state  homestead, 
divested  of  its  homestead  character  and 
exemption,  which  tlo  not  revive  upon  his. 
rei^urchase.  De  Lany  v.  Knapp,  111  Cal. 
165;  52  Am.  St.  Rep.  160;  43  Pac.  598.. 
The  levy  of  an  execution  upon  land,  where 
the  judgment  is  not  a  lien,  creates  a  lien 
upon  the  land  from  that  date,  which  will 
charge  whatever  interest  in  the  land  is, 
or  may  be  made,  subject  to  the  execution, 
including  the  excess  iu  value  of  the  home- 
stead property  over  the  homestead  exemp- 
tion. Lean  v.  Givens,  146  Cal.  739;  106 
Am.  St.  Eep.  79;  81  Pac.  128;  and  see 
Blood  V.  Light,  38  Cal.  657;  99  Am.  Dec. 
441;  Beaton  v.  Eeid,  111  Cal.  486;  44  Pac. 
167;  Lehnhardt  v.  .lennings,  119  Cal.  195;. 
48   Pac.   56;   51   Pac.   195;   Summerville   v.. 


1821 


WUAT   EXEMPT   FROM    EXECUTION, 


§G90 


Stockton  Milling  Co.,  142  Cal.  529;  76  Pac 
243.  But  in  Lubbock  v.  McManu,  82  Cal. 
230,  IG  Am.  yt.  Kep.  108,  22  Pac.  IH.i,  it 
appears  to  have  been  hebl  tliat  a  judfjnient 
is  not  a  lien  on  any  part,  eitlier  in  extent 
■or  value,  of  the  homestead  premises,  even 
iu  cases  where  there  is  an  excess  in  value 
above  the  homestead  exemption.  The  levy 
on  i>roiicrty  covered  by  the  homestead 
■exemption  is  imi>osed  on  the  proi>erty  con- 
ditionally, to  become  absolute  in  the  event 
that  it  is  determined  in  the  proceeding 
that  an  excess  exists,  and  a  purchaser  after 
•the  levy  takes  subject  to  the  lien.  Lean 
V.  Giveus,  146  Cal.  739;  106  Am.  St.  Kep. 
79;  81  Pac.  128.  A  judgment  obtained 
-after  the  declaration  and  recording  of  a 
homestead  is  not  a  lien  on  the  homestead; 
neither  are  shares  of  stock,  purchase<l  with 
money  borrowed  on  a  mortgage  upon  such 
homestead,  subject  to  execution.  Yardley 
v.  San  Joaquin  Valley  Bank,  3  Cal.  App. 
651;  86  Pac.  978. 

Constitutionality  of  exemption  statutes.  See 
iioti>  4.5  Am.  Dec.  251. 

Waiver  of  exemption  by  executory  contract. 
Sto  note  72  Am.  Dec.  741. 

Exemption  of  partnership  property.  See  note 
27  Am.  Dec.  24G. 

Exemption  of  tools.  See  notes  21  Am.  Dec. 
545;   47  Am.  Kep.   190. 

What  exempt  as  tools  and  who  may  claim  ex- 
emption.   Sec  note  25  Am.  Rep.  03. 

When  life-insurance  policies  subject  to  execu- 
tion.    See   note  88  Am.   Dec.  530. 

Exemption  of  wages.  See  note  91  Am.  Dec. 
411. 

Who  is  head  of  family  within  meaning  of  law 
allowing  exemptions.    See  note  32  Am.  Kep.  30. 

When  exemption  of  pension-money  ceases.  See 
note  41   Am.   Kep.  411. 

Exemption  of  pension  or  bounty.  See  note  17 
Ann.   Cas.    1191. 

Construction  of  statutes  exempting  horses  from 
•execution.     See  note  6  Ann.  ('as.   779. 

Meaning  of  term  "wearing-apparel"  in  exemp- 
tion statutes.    See  note  1.5  Ann.  Cas.   159. 

Meaning  of  "apparatus"  in  exemption  statute. 
See  note  Ann.  Cas.  1912C,  610. 

Actions  to  vindicate  right  of  exemption.  See 
:iiote  75  Am.  Dec.  645. 

Whether  exemption  must  be  claimed.  See 
•note  31  Am.  Kep.  44. 

Right  of  debtor  to  claim  successive  exemptions. 
.'See  note  4  Ann.  Cas.  220. 

Right  of  non-resident  to  claim  exemption  from 
execution  or  garnishment  in  absence  of  express 
restriction  in  statute.    See  note   10  Ann.  Cas.  500. 

Validity  of  statute  extending  or  lessening  ex- 
emption from  execution.  See  note  .Vnn.  Cas. 
1912B,  259. 

Right  of  debtor  to  exemption  as  affected  by 
preparation  to  remove  from  state.  See  note  Ann. 
Cas.  191  3C,  729. 

CODE  COMMISSIONERS' NOTE.  Stats.  1866, 
p.  271;  Stats.  1861,  p.  567;  Stats.  1862,  p.  444; 
Stats.  18G8,  p.  500. 

Sheriff  is  liable  for  sale  of  property  exempt 
from  execution.  Sheriff  is  liable  for  sale  of  prop- 
erty which  is  exempt  from  execution,  it"  such 
exemption  is  claimed  before  sale.  Spencer  v. 
Long,  39  Cal.  700.  If  judgment  debtor  was  ab- 
sent and  sick  at  time  property  was  sold,  it  is  a 
•sufficient  excuse  for  not  claiming  exemption  be- 
fore sale.  Haswell  v.  Parsons,  15  Cal.  266;  76 
Am.  Dec.  480. 

Subd.  1.  This  and  the  next  subdivision  are  for 
the  benefit  of  all  classes  of  judgment  debtors, 
-whatsoever  may  be  their  vocation,  because  these 
articles  are  essential  to  all  families.  Kobei  t  v. 
Adams,  38  Cal.  283;  99  Am.  Dec.  413. 

Subd.  2.  See  note  to  subd.  1.  Certain  housc- 
ihold  furniture  being  claimed  as  exempt  from  exe- 


cution, the  fact  that  the  number  of  beds  claimed 
— six  in  all — was  greater  than  was  requireil  for 
the  immediiite  and  continued  use  of  the  family,  is 
no  objection.  Although  it  is  possibU  that  a  less 
number  of  beds  niifht  have  answerer!,  yet  it  would 
be  a  very  narrow  con.striK-tion  of  the  statute  to 
limit  the  exemption  to  just  the  number  required 
for  iir.modiate  and  con.stant  use.  Haswell  v.  Par- 
sons,   15  Cul.  200;   76  Am.  Dec.  480. 

Subd.  3.  In  norland  v.  ONeal,  22  Cal.  506, 
tile  court  rendered  the  followinn  opinion:  "The 
plaintiff  was  entitled  to  hold  two  horses,  exempt 
from  execution,  under  the  third  clause  of  J  219  of 
the  Practice  Act.  When  the  debtor  has  mor-) 
horses  than  the  number  exempt  by  law,  he  has 
the  riglit  to  elect  which  he  claims  as  exempt,  and 
such  election  must  be  made  at  the  time  of  the 
levy,  or  within  a  reasonable  time  after  notice  of 
the  levy,  by  giving  the  officer  notice  of  sui-li  elec- 
tion. The  officer  is  under  no  obligation  to  hunt 
up  the  debtor  in  advance  of  the  levy,  in  order  to 
procure  a  selection  by  him.  Seaman  v.  Luce,  23 
Barb.  (N.  Y.)  240;  Lockwood  v.  Younglove.  27 
Barb.  (N.  Y.)  506.  The  debtor  waives  his  right 
by  failing  to  claim  it ;  and  a  claim  under  one  exe- 
c-ution,  when  no  sale  was  made  under  it,  is  not 
sufficient,  when  the  property  was  levied  upon  and 
sold  under  a  subsequent  execution.  Doilson's  Ap- 
peal, 25  Pa.  St.  232.  The  exemption  of  property 
from  sale  on  execution  is  a  personal  right,  which 
the  debtor  may  waive  or  claim,  at  his  election. 
State  v.  Meloque,  9  Ind.  196.  Where  the  debtor 
has  several  horses,  and  one  is  exempt  from  execu- 
tion, he  may  elect  which  shall  be  exempt;  but  if 
he  has  some  not  in  the  jurisdiction  of  the  officer, 
and  so  beyond  the  reach  of  the  execution,  and 
there  is  only  one  within  the  reach  of  the  execu- 
tion, he  cannot  defeat  the  creditor's  levy  on  that 
one  by  electing  to  keep  it.  Such  a  course  would 
be  using  the  statute,  which  was  intended  for 
ben(fjcent  purposes,  as  a  means  of  evasion  and 
fraud.  Kobinson  v.  Myers,  3  Dana  (Ky.),  441. 
And  where  the  officer  levied  on  one  horse,  leav- 
ing another  in  the  possession  of  t!ie  debtor  as 
exempt,  and  the  latter,  on  the  day  of  sale,  claimed 
the  horse  levied  on  as  exempt,  held,  that  his  pro- 
ceeding to  sell  under  the  execution  was  not 
wrongful,  unless  the  debtor  should  tender  him  for 
Bale,  in  lieu  of  tlie  article  levied  on,  such  other 
articles  as  he  might,  in  the  first  instance,  have 
seized  for  the  satisfaction  of  the  debt,  or  so  much 
as  was  certainly  and  palpably  sufficient  to  dis- 
charge the  debt,  or  was  at  least  equal  in  vendible 
value  to  the  article  claimed  to  be  exempt.  McGee 
V.  Anderson,  1  B.  Mon.  (Kv.)  187;  36  Am.  Dec. 
570."  Borland  v.  O'Neal,  22  Cal.  506;  affirmed 
in  Gavitt  v.  Doub,  23  Cal.  82. 

Subd.  3.  Oxen,  horses,  and  mules.  This  sub- 
division was  intended  to  apply  only  to  oxen, 
horses,  or  mules  suitable  and  intended  for  the 
ordinary  work  conducted  on  a  farm.  Hence,  it 
does  not  apply  to  a  stallion  not  used  as  a  work- 
hoise  on  a  farm,  but  kept  for  service  of  mares. 
Robert  v.  Adams,   38   Cal.   383;   99   Am.   Dec.  413. 

Subd.  4.  See  Brusie  v.  Griffith,  34  Cal.  306, 
91  Am.  Dec.  695,  commented  on  in  note  to  subd. 
6.  This  subdivision  (4),  and  also  subds.  5,  6, 
are  intended  to  exempt  such  articles  as  are  used 
by  the  judgment  debtor  in  earning  a  support  for 
himself  and  familv  in  his  particular  vocation. 
Robert  v.  Adams,  3S  Cal.  384;  99  Am.  Dec.  413; 
see  note  to  subd.  3. 

Subd.  5.  .See  note  to  subd.  4.  Robert  v. 
Adams,   38  Cal.   384;    99  Am.   Dec.   413. 

Subd.  6.  Where  two  mules  are  claimed  as 
exempt,  it  must  be  shown  that  the  party  claiming 
the  mules  habitually  earned  his  living  by  the  use 
of  the  animals  in  question,  or  that  he  is  one  of 
the  persons  mentioned  in  the  statute.  Calhoun  v. 
Knight,  10  Cal.  393.  It  was  held,  that  the  term 
"wagon"  is  intended  to  mean  a  common  vehicle 
for  the  transportation  of  goods,  wares,  and  mer- 
chandise; and  that  a  hackney-coach,  for  the  con- 
veyance of  passengers,  was  a  different  article, 
and  did  not  come  within  the  equity  or  literal 
meaning  of  the  act.  Quigley  v.  Gorham,  5  Cal. 
418;  63  Am.  Dec.  139.  But  the  introduction  of 
the  words  "coupe,"  "hack."  "carriage,"  etc., 
obviates  this  distinction.  In  order  to  entitle  a 
person  to  claim,  as  exempt  from  execution,  two 
horses,  etc.,  under  this  sulxlivision  he  must  show 
that  he  is   a  cartman,   drayman,   truckman,   huck- 


§691 


EXECUTION. 


822 


ster,  peddler,  hackmnn,  tenraster,  or  other  laborer, 
and  that  he  habitually  earns  his  living  by  the  use 
of  such  horses,  waKon.  etc.  By  "other  laborer" 
is  meant  one  who  labors  by  and  with  the  aid  of 
his  team,  and  not  by  the  aid  of  a  pick  and  shovel, 
or  an  anvil,  or  a  lapstone,  or  a  jackplane,  or  a 
yardstick.  In  the  sense  of  the  statute,  one  is  a 
"teamster,"  who  is  engaged  with  his  own  team, 
or  teams,  in  the  business  of  teaming:  that  is  to 
say,  hauling  freight  for  a  consideration.  While 
he  need  not,  perhaps,  drive  his  team  in  person, 
yot  he  must  be  personally  engaged  in  the  busi- 
ness of  teaming  habitually  for  the  purpose  of 
making  a  living  by  that  business.  If  a  carpenter 
or  other  mechanic  purchases  a  team  or  teams,  and 


also  carries  on  the  business  of  teaming  by  the 
employment  of  others,  he  does  not  thereby  be- 
come a  "teamster,"  in  the  sense  of  the  stafute.. 
Brusie  v.  Griffith,  34  Cal.  306;  91  Am.  Dec.  695; 
see  also  Robert  v.  Adams,  38  Cal.  384;  99  Am. 
Dec.  413. 

Subd.  10.  See  Spencer  v.  Geissman,  37  CaK 
97;  99  Am.  Dec.  248. 

Subd.  11.  Insurance  and  endowment  policies 
exempt  from  execution.  See  Briggs  v.  McCul- 
lough,  36  Cal.  543;  see  further  McCullough  v. 
Clark,  41  Cal.  298. 

Homestead  exempt  from  forced  sale.  See  Civ. 
Code,  §§  1240,  1241. 


§ 


691.  Writ,  how  executed.  The  sheriff  must  execute  the  writ  against 
the  property  of  the  judgment  debtor,  by  levying  on  a  sufficient  amount  of 
property,  if  there  be  sufficient;  collecting  or  selling  the  things  in  action, 
and  selling  the  other  property,  and  paying  to  the  plaintiff  or  his  attorney 
so  much  of  the  proceeds  as  will  satisfy  the  judgment.  Any  excess  in  the 
proceeds  over  the  judgment  and  accruing  costs  must  be  returned  to  the 
judgment  debtor,  unless  otherwise  directed  by  the  judgment  or  order  of 
the  court.  When  there  is  more  property  of  the  judgment  debtor  than  is. 
sufficient  to  satisfy  the  judgment  and  accruing  costs  within  the  view  of  the 
sheriff,  he  must  levy  only  on  such  part  of  the  property  as  the  judgment 
debtor  may  indicate,  if  the  property  indicated  be  amply  sufficient  to  satisfj^ 
the  judgment  and  costs. 


Sheriff. 

1.  Debts,  payment  of,  to.    Ante,  §  544;  post, 
§  716. 

2.  Directions   to,    effect    of.     See   Pol.    Code, 
§  4166. 

3.  Justification  of.    See  Pol.    Code,  §  4168. 

4.  Must  execute  writ.    Pol.  Code,  §  4161. 

5.  Neglect  of.  to  levy  or  sell,  liability.    See 
Pol.  Code,  §  4161. 

6.  Paying  over  proceeds.     Pol.  Code,  §§  4162, 
4167. 

7.  Selling  property.     Post,  §§  692  et  seq. 
Legislation  §  691.    1.  Enacted  March  11,  1873; 

based  on  Practice  Act,  §  220,  which,  down  to  the 
words  "satisfy  the  judgment,"  read  the  same  as 
at  present,  except  that,  in  the  first  line,  it  had 
the  word  "shall"  instead  of  "must"  ;  after  "satisfy 
the  judgment,"  the  section  read:  "or  depositing 
the  amount  with  the  clerk  of  the  court:  any  ex- 
cess in  the  proceeds  over  the  judgment  and  the 
sheriff's  fees  shall  be  returned  to  the  judgment 
deVjtor.  When  there  is  more  property  of  the 
judgment  debtor  than  is  sufficient  to  satisfy  the 
judgment  and  the  sheriff's  fees,  within  the  view 
of  the  sheriff,  he  shall  levy  only  on  such  part  of 
the  property  as  the  judgment  debtor  may  in- 
dicate: Provided,  That  the  judgment  debtor  be 
present  at,  and  indicate  at  the  time  of  the  levy, 
such  part:  and  provided,  that  the  property  in- 
dicated be  amply  sufficient  to  satisfy  such  judg- 
ment and  fees."  When  §  691  was  enacted  in 
1872,  (1)  in  first  line,  "shall"  was  changed  to 
"must";  (2)  the  words  "or  depositing  the  amount 
with  the  clerk  of  the  court"  were  omitted:  (3) 
the  word  "shall"  was  changed  to  "must,"  before 
"be  returned"  and  before  "levy";  and  (4)  the 
proviso  was  omitted. 

2.   Amended  by  Code  Amdts.  1873-74,  p.  321. 

Levy  and  sale.  The  levy  of  an  execu- 
tion is  not  necessary,  where  the  judgment 
itself  constitutes  a  lien  upon  the  real  prop- 
erty which  is  the  subject  of  the  execution 
sale;  but  where  the  judgment  does  not  con- 
stitute a  lien  upon  the  property  sold,  and 
there  is  no  levy,  the  sale  takes  effect  upon 
the  day  of  its  date,  and  not  before,  or,  at 
all  events,  not  before  the  notices  of  the 
sale  were  posted.    Summerville  v.  Stockton 


Milling  Co.,  142  Cal.  529;  76  Pae.  243;  and 
see  Baglev  v.  Ward,  37  Cal.  121;  99  Am.. 
Dec.  256;  "Blood  v.  Light,  38  Cal.  649;  99^ 
Am.  Dec.  441;  Lehnhardt  v.  Jennings,  US' 
Cal.  192;  48  Pac.  56;  51  Pac.  195. 

Purchaser's  title.  The  title  of  a  pur- 
chaser at  a  sheriff's  sale  does  not  depend 
upon  the  return  to  the  writ  of  execution- 
Weldon  v.  Rogers,  157  Cal.  410;  108  Pac. 
266. 

Note  may  be  sold.  A  promissory  note  is 
a  credit,  and  is  liable  to  seizure  and  sale- 
under  execution  against  the  holder  and 
payee.   Davis  v.  Mitchell,  34  Cal.  81. 

Sheriff's  accruing  costs.  The  keeper's 
fees  and  expenses  are  not  a  part  of  th& 
sheriff's  "accruing  costs,"  under  this  sec- 
tion, and  are  not  chargeable  against  the 
defendant  without  being  included  in  the- 
judgment;  "accruing  costs"  are  such  fees 
and  expenses,  only,  as  are  incurred  in  exe- 
cuting the  judgment.  Hotchkiss  v.  Smithy 
108  Cal.  285';  41  Pac.  304. 

Liability  of  sheriff.  The  default  of  the 
sheriff  to  execute  a  writ  of  execution 
renders  him  liable  upon  his  bond.  Sheehy 
v.  Graves,  58  Cal.  449.  If  money  in  the 
hands  of  a  county  treasurer  is  sold  -without 
being  delivered,  the  purchaser  must  look 
to  the  sheriff  for  its  delivery.  Magee  v- 
Superior  Court,  10  Cal.  App.  154;  101  Pac. 
532. 

Check  given  on  execution  sale.  The 
assignee  of  an  insolvent  corporation  is 
entitled  to  be  treated  as  the  equitable 
assignee  of  a  check  given  the  officer  upon 
the  execution  sale  of  jiroperty  belonging 
to  such  insolvent  corporation,  where  such 
officer  fails  and  neglects  to  sue;  and  such. 


823 


WRIT   KXECUTTT>    TTOW. 


§691 


equitable  assignee  may  maintain  his  right 
of  action  to  recover  the  amount  rejtrc- 
sented  bv  the  check.  Meherin  v.  Saunders, 
131  Cal.  6S1;  54  L.  R.  A.  272;  63  I'ac.  1084. 
Levy,  defined.  This  section  contem- 
plates that  levying  is  something  different 
from  selling,  and  makes  the  levying  of  the 
writ  a  part  of  the  process  of  executing 
it;  the  term  "lev}',"  when  employed  to 
connote  the  acts  by  which  an  oflicer  mani- 
fests his  intent  to  a[iproi)riate  land  to  the 
satisfaction  of  an  execution,  and  when  not 
defined  by  statute,  has  considerable  elas- 
ticity of  meaning;  so,  probably  for  the 
reason  that  as  the  common  law  permitted 
no  levy  of  the  writ  on  lands,  it  did  not 
devise  any  procedure  for  that  purpose. 
Lehnhardt  v.  .lenuings,  119  Cal.  192;  48 
Pac.56;  51  Pac.  195. 

Leaving  debtor  in  possession  after  levy.  See 
note  27  Am.  Dec.  108. 

Levy  of  execution  on  partnership  property  for 
partner's  private  debts.     See  note  29  Am.  Dec.  663. 

Levy  of  execution  on  property  in  use  or  pos- 
session of  debtor.     See  note  88  Am.  Dec.   709. 

Necessity  for  levy  to  sustain  sale.  See  note  33 
xVm.  Dec.  69  7. 

Levy  effected  by  unlawful  or  fraudulent  means. 
See  note  93  Am.  Dec.  4ti6. 

Diligence  exacted   of  sheriff  in  serving  esecu- 

tion.     fSee   note   9.")   Am.    Dec.    428. 

Duty  of  ofScers  as  to  service  of  execution  in 
the  absence  of  directions.  See  note  95  Am.  Dec. 
425. 

CODE  COMMISSIONEES'  NOTE.  1.  Gener- 
ally. See  Blood  v.  Light,  38  Cal.  652;  99  Am. 
Dec.  441,  and  cases  there  cited  ;  Wilson  v.  Hroder, 
10  Cal.  486;  Smith  v.  Randall,  6  Cal.  47;  65 
Am.  Dec.  475. 

2.  Execution  when  satisfaction  of  judgment. 
The  law  is  well  settled,  that,  as  a  general  rule, 
a  levy  under  an  execution  upon  sufficient  per- 
sonal property  to  satisfy  the  same,  is  a  satis- 
faction of  the  judgment,  sufficient,  at  least,  to 
discharge  third  persons  who  were  liable  collater- 
ally, or  as  sureties  thereon.  People  v.  Chisholm, 
8  Cal.  29;  Mickles  v.  Haskin,  11  Wend.  125; 
Morley  v.  Dickinson,  12  Cal.  561.  The  law  does 
not  deem  such  a  levy  a  payment,  but  it  is  termed 
a  satisfaction  or  discharge,  and  the  facts  thus  set 
forth  in  the  answer  were  properly  new  matter, 
and  were  to  be  taken  as  true,  no  replication  deny- 
ing the  same  having  been  filed.  The  defendants 
agreed  to  indemnify  the  plaintiff  against  the  pay- 
ment of  costs  in  Boyreau  v.  Campbell,  and  they 
were  in  a  manner  collaterally  liable  therefor,  in 
the  nature  of  sureties.  The  levy  upon  sufficient 
personal  property  to  satisfy  the  judgment  and 
execution,  in  that  case,  operated  as  a  satisfaction 
thereof,  sufficient,  at  least,  to  discharge  the  col- 
lateral liability  of  these  defendants.  Neither  the 
plaintiff  in  that  action,  nor  Bray,  one  of  the  par- 
ties to  the  agreement,  could  do  any  act  by  which 
such  discharge  could  be  rendered  ineffectual  or 
nugatory  without  the  consent  of  these  defendants. 
Morley  v.  Dickinson,  12  Cal.  561.  It  follows, 
that  neither  the  release  of  the  property  from  the 
levy  by  the  plaintiff  in  that  action,  nor  the  sub- 
sequent voluntary  payment  of  the  judgment  by 
Bray,  could  revive  the  liability  of  these  defend- 
ants which  had  been  thus  discharged,  unless  done 
with  their  consent,  no  evidence  of  which  appears 
in  this  case.  The  rule,  that  a  levy  upon  suffi- 
cient personal  property  is  satisfaction  of  the 
judpment.  is  subject,  however,  to  many  qualifica- 
tions as  between  the  parties.  Mulford  v.  Estu- 
dillo,  23  Cal.  100;  32  Cal.  185;  see  further,  Clark 
V.  Sawyer,  1  Cal.  Unrep.  573  ;  Kenyon  v.  Quinn, 
41  Cal.  325;  Howe  v.  Union  Ins.  Co.,  42  Cal. 
528. 

3.  Debtor  may  indicate  real  instead  of  per- 
Bonal   property   for   the   levy.      This   section   was 


enacted  rather  for  the  beneflt  of  the  debtor  than 
the  creditor.  The  sheriff  m.Ty,  on  the  requ<sl  of 
the  debtor,  levy  on  real  catato  instead  of  the  per 
sonal  properly,  although  there  may  be  sufficient 
of  the  latter  to  ainiily  satisfy  the  execution. 
Smith  v.   Kandall,   6  Cal.  47;   65   Am.   Dec.   47.'.. 

4.  Remedy  against  shoriff  to  compel  payment 
over  of  money  collected  on  execution.  See  Wil- 
son v.  liroilir,   lu  (ill.  4MI). 

6.  Execution  against  personal  property.  Under 
our  statute,  an  execution  affecUs  property,  only 
from  the  time  of  the  levy;  and  service  of  tt  copy 
of  an  execution  does  not  constitute  a  lien  on 
projierty  capable  of  manual  delivery.  Johnson  v. 
Ciorham,  6  Cal.  196;  C5  Am.  Dec.  501;  Dutertre 
V.  Dnard,  7  Cal.  549;  Taffts  t.  Manlove,  14  Cal 
47;  73  Am.  Dec.  610;  Herron  v.  Hughes,  25  Cal. 
563.  The  mere  fact  that  the  judgment  debtor 
(against  whom  execution  had  issueU)  was  found 
upon  the  raining  ground  of  plaintiff,  cannot  be 
said  to  authorize  the  sherifT,  who  had  the  execu- 
tion, in  going  on  the  ground  and  digging  up  the 
gold  contained  in  the  earth.  Kowe  v.  Bradley,  IJ 
Cal.  220.  While  the  interest  of  the  pledgor  may 
be  reached  under  an  execution,  it  can  onlv  be 
done  by  serving  a  garnishment  on  the  pledgee, 
and  not  by  a  seizure  of  the  pledge.  Treadwell  t 
Davis,  34  Cal.  601;  94  Am.  Dec.  770.  Sec  case 
of  Mulford  V.  Estudillo,  23  Cal.  100,  32  Cal.  135. 
commented  on  in  note  2  to  this  section.  Section 
220,  among  other  things,  provides  that  the  sheriff 
shall  execute  an  execution  "by  collecting  or  sell- 
ing the  things  in  action."  Section  228  provides 
that  the  sheriff  shall  execute  and  deliver  to  the 
purchaser  of  personal  property,  not  cal>al^le  of 
manual  delivery,  a  certifi<-ate  of  sale  and  pay- 
ment; and  that  such  certificate  shall  convey  to 
the  purchaser  all  right,  title,  and  interest  which 
the  debtor  had  in  and  to  such  property  on  the 
day  the  execution  was  levied.  Under  the  fore- 
going provisions,  there  can  be  no  doubt  but  that 
the  note  in  suit  was  liable  to  seizure  and  sale 
under  execution  against  the  holder  and  payee, 
David  Thomas.  It  was  a  "credit,"  within  'the 
meaning  of  the  statute.  Webster's  Diet.,  word 
"Credit."  By  §  642  of  the  Code  of  Practice  of 
Louisiana,  the  sheriff,  under  an  execution,  is  re- 
quired "to  seize  the  property,  real  and  personal, 
rights,  and  credits  of  the  debtor,  and  to  sell  them 
to  satisfy  the  judgment  obtained  against  hira." 
Under  this  provision  it  has  been  held,  in  that 
state,  that  the  right  of  a  defendant  in  a  promis- 
sory note  may  be  sold  under  an  execution  (Brown 
V.  Anderson,  4  Mart.  (X.  S. )  416),  and  that  an 
actual  seizure  by  the  sheriff  is  not  required.  Wil- 
son V.  Munday,  5  La.  483.  In  subsequent  cases, 
however,  this  latter  point  seems  to  have  been  de- 
cided the  other  way.  Goubeau  v.  New  Orleans  etc. 
R.  R.  Co.,  6  Rob.  (La.)  345;  Simpson  v.  Allain,  7 
Rob.  (La.)  500;  Fluker  v.  Bullard,  2  La  Ann 
338;  Offut  V.  Mouquit,  2  La.  Ann.  785;  Tavlor 
V.  Stone,  2  La.  Ann.  910;  Stockton  v.  Stan- 
brough,  3  La.  Ann.  390.  In  Adams  v.  Hackett. 
7  Cal.  187,  this  doctrine  was  announced  as  a 
judgment.  In  Johnson  v.  Reynolds,  which  was 
decided  about  the  same  time  as  Adams  v.  Hackett, 
but  does  not  seem  to  have  been  reported,  it  was 
applied  to  promissory  notes.  Johnson  sued  Rey- 
nolds upon  two  promissory  notes,  made  by  him 
in  favor  of  Adams  &  Co.,  which  he  had  purchased 
at  a  sheriff's  sale,  under  an  execution  afjainst 
Adams  &  Co.,  by  virtue  of  which  the  sheriff  had 
seized  and  taken  the  notes  into  his  possession 
These  facts  were  set  out  at  length  in  the  com- 
plaint. The  defendant  demurred,  on  the  ground 
that  the  plaintiff  did  not  become  the  lawful 
owner  and  holder  of  the  notes  by  reason  of  the 
s.ile  and  delivery  to  him  by  the  sherilT.  The 
court  below  sustained  the  demurrer,  and  the  plain- 
tiff appealed.  This  court  reversed  the  jiidirment, 
holduifj  that  the  notes  were  liable  to  seizure  and 
sale  under  execution,  and  that  by  virtue  of  the 
sheriff's  sale  the  plaintiff  had  become  the  lawful 
owner  and  holder  of  the  notes,  and  therefore  en- 
titled  to  sue.     Davis  v.   Mitchell.    34   Cal.   87 

6.  Execution  against  real  estate.  See  the 
elaborate  opinion  of  .Justice  Rhodes  in  Bagley  v 
Ward,  3  7  Cal.  128,  99  Am.  Dec.  256,  and  cases 
cited;  also  Blood  v.  Light,  38  Cal.  652;  90  Am. 
Dec.  441. 


§692 


EXECUTION. 


824 


§  692.  Notice  of  sale  under  execution,  how  given.  Before  the  sale  of 
property  on  execution,  notice  thereof  must  be  given  as  follows: 

1.  In  case  of  perishable  property:  by  posting  written  notice  of  the  time 
and  place  of  sale  in  three  public  places  of  the  township  or  city  where  the 
sale  is  to  take  place,  for  such  time  as  may  be  reasonable,  considering  the 
•character  and  condition  of  the  property. 

2.  In  case  of  other  personal  property:  by  posting  a  similar  notice  in  three 
public  places  in  the  township  or  city  where  the  sale  is  to  take  place,  for 
not  less  than  five  days  nor  more  than  ten  days. 

3.  In  case  of  real  property:  by  posting  a  similar  notice,  particularly 
describing  the  property,  for  twenty  days,  in  three  public  places  of  the  town- 
ship or  city  where  the  property  is  situated,  and  also  where  the  property  is 
to  be  sold,  and  publishing  a  copy  thereof,  once  a  week  for  the  same  period, 
in  some  newspaper  of  general  circulation,  printed  and  published  in  the 
city  or  township,  in  which  the  property  is  situated,  if  there  be  one,  or,  in 
case  no  newspaper  of  general  circulation  be  printed  and  published  in  the 
city  or  township,  in  some  newspaper  of  general  circulation,  printed  and 
published  in  the  county. 

4.  When  the  judgment  under  which  the  property  is  to  be  sold  is  made 
payable  in  a  specified  kind  of  money  or  currency,  the  several  notices  re- 
quired by  this  section  must  state  the  kind  of  money  or  currency  in  which 
bids  may  be  made  at  such  sale,  which  must  be  the  same  as  that  specified 
in  the  judgment. 


Sale. 

1.  Of  perishable  property,  under  attachment. 

Ante,  §  547. 

2.  Of  vessels,  notice  of.     Post,  §§  824,  827. 

3.  Without  notice.    Post,  §  693. 

Specified  kind  of  money.    Ante,  §  682,  subd.  4. 

Legislation  §  692.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  221,  as  amended  by 
Stats.  1863,  p.  689.  When  §  692  was  enacted  in 
1872,  (1)  in  the  introductory  paragraph,  the 
word  ".shall"  was  changed  to  "must";  (2)  in 
subd.  1,  the  word  "a"  was  omitted  after  "for 
such";  (3)  in  subd.  4,  the  word  "shall"  was 
changed  to   "must,"   in  both   instances. 

3.     Amended  by  Code  Amdts.  1873-74,  p.  322, 

(1)  in  subd.  2,  (a)  inserting  the  word  "for" 
before  "not  less,"  and  (b)  omitting  the  word 
"successively"  after  "ten  days";  (2)  in  subd. 
3,  (a)  omitting  the  word  "successively"  after 
"twenty  days,"  and  (b)  changing  the  word  "when" 
to  "where,"  subd.  3  then  ending  with  the  words 
"same  period,  in  some  newspaper  published  in 
the  county,  if  there  be  one  " 

3.  Amended  by  Stats.  1907,  p.  980,  (1)  add- 
ing, in  subd.  2,  the  word  "days"  after  "five."  and 

(2)  in  subd.  3,  changing  the  subdivision  to  read 
as  at  present,  after  the  words  "same  period,  in 
some  newspaper." 

Notice  of  sale.  The  requirement  of  no- 
tice of  sales  on  execution  is  as  much  for 
the  defendant's  benefit  and  protection  as 
for  the  plaintiff's.  Northern  Counties  In- 
vestment Trust  V.  Cadman,  101  Cal.  200; 
35  Pac.  557.  Questions  appertaining  to 
notice,  as  well  as  all  others  which  merely 
relate  to  irregularities,  are  between  the 
officer  selling  and  the  parties  to  the  exe- 
cution. Keliey  v.  Desmond,  63  Cal.  517. 
A  description  in  the  notice  is  sufficient, 
where  it  is  the  same  as  that  in  tho  .judg- 
ment, and  identifies  the  land  sold.    Anglo- 


Calif  ornian  Bank  v.  Cerf,  142  Cal.  303;  75 
Pac.  902.  Notice  given  by  the  officer,  as 
required  by  this  section,  is  an  act  mani- 
festing the  intent  of  the  officer  to  appro- 
priate the  described  property  to  sale  for 
the  satisfaction  of  the  writ,  and  is  a  suffi- 
cient levy,  in  any  case,  where  the  judg- 
ment is  a  lien  on  the  property  to  be  sold. 
Lehnhardt  v.  Jennings,  119  Cal.  192;  48 
Pac.  56;  51  Pac.  195. 

Computation  of  time.  Where  the  law 
fixes  the  time  within  which  an  act  is  to 
be  done,  all  of  the  last  day  of  that  period 
is  within  the  time,  and  a  default  for  not 
doing  the  act  can  only  be  taken  on  the 
next  day.  Bellmer  v.  Blessington,  136  Cal. 
3;  68  Pac.  Ill;  and  see  Misch  v.  Mayhew, 
51  Cal.  514;  Hagenmeyer  v.  Board  of 
Equalization,  82  Cal.  214;  23  Pac.  14; 
Landregan  v.  Peppin,  86  Cal.  122;  24  Pac. 
859;  Derby  v.  Modesto,  104  Cal.  515;  38 
Pac.  900;  Bates  v.  Howard,  105  Cal.  173; 
38  Pac.  715. 

Sales  made  after  return-day.  See  notes  15  Am. 
Dec.  522;   76  Am.  Dec.  83. 

Judicial  sale  on  other  than  appointed  day. 
See  note  38  L.  II.  A.  (N.  S.)  248. 

Secret  vices  in  notice  of  sale.  See  note  12  Am. 
Dec.  212. 

Failure  of  or  defects  in  notice  of  sale.  See 
note  44  Am.  Dec.  238. 

Suflftciency  of  notice  of  sale.  See  note  75  Am. 
Dec.  704. 

Power  of  officer  to  adjourn  sale.  See  note  26 
Am.  Dec.  536. 


CODE  COMMISSIONERS'  NOTE. 
§  691,  ante,  and  cases  there  cited. 


See  note  to 


825 


SALE  WITHOUT  NOTICE — PENALTY, 


§693 


§  693.  Selling  without  notice,  what  penalty  attached.  An  ofTioer  selling 
without  the  notice  i)rL'.scril)tHl  by  the  last  section  forfeits  five  hundred  dol- 
lars to  the  aggrieved  party,  in  addition  to  his  actual  damages;  and  a  per- 
son willfully  taking  down  or  defacing  the  notice  posted,  if  done  before  the 
sale  or  the  satisfaction  of  the  judgment  (if  the  judgment  be  satisfied  before 
sale),  forfeits  five  hundred  dollars. 

founded  upon  the  ofllfial  miscon.lnct  of  the 
sherifl'.  Raker  v.  Bucher,  100  C'al.  214:  34 
Paf.  G.-4. 

Actions  for  damages  or  forfeiture.  .\n 
action  under  this  seftion  beinj,'  to  enforce 
a  penalty  or  forfeiture,  the  claim  must  be 
strictly  construed,  and  the  plaintiff  must 
show  clearly  that  his  case  comes  within 
the  statute.  Askew  v.  Ebberts,  22  Cal.  263. 
A  cause  of  action  for  damages  for  sale 
without  notice  is  complete,  under  the  stat- 
ute, as  soon  as  the  officer  delivers  a  cer- 
tificate of  sale  to  the  purchaser  at  the 
execution  sale.  Raker  v.  Bucher,  100  Cal. 
214;  34  Pac.  654.  Under  this  section,  the 
aggrieved  party  can  only  recover  the  for- 
feiture when  the  sale  has  been  perfected 
and  completed  by  at  least  the  payment  of 
the  purchase-money  by  the  purchaser;  he 
cannot  recover,  where  there  was  an  at- 
temi)ted  sale  under  a  defective  notice,  bv 
which  nothing  passed  and  no  right  to  jirop- 
erty  vested  in  the  purchaser,  and  where 
the  purchaser  did  not  pay  the  purchase- 
money,  and  where  the  ofificer  afterwards 
rightfully  sold  the  property  after  giving 
the  proper  notice.  Askew  v.  Ebberts,  22 
Cal.  263.  An  action  to  recover  the  pen- 
alty and  damages  for  selling  personal  prop- 
erty under  writ  of  execution,  without 
giving  the  notice  required,  implies,  and 
requires  for  its  maintenance,  a  valid  exe- 
cution; and  an  objection  by  the  plaintiflf, 
that  the  execution  was  void  because  not 
dated,  is  felo  de  se  as  to  the  plaintiff's 
case.  Bellmer  v.  Blessington,  136  Cal.  3: 
68  Pac.  111. 

Aggrieved  party,  who  is.  The  party  is 
not  injured  or  aggrieved,  unless  by  means 
of  the  sale,  without  notice,  he  has  been 
deprived  of  his  property.  Askew  v.  Eb- 
berts, 22  Cal.  263.  The  purchaser  at  an 
execution  sale,  without  notice,  is  not  an 
aggrieved  party,  within  the  meaning  of 
this  section;  such  a  sale  is  either  valid  or 
invalid;  it  passes  title,  or  it  does  not;  if 
it  is  a  nullity  and  passes  no  title,  the  pur- 
chaser sustains  no  injury,  and  no  right  of 
action  for  the  forfeiture  accrues;  if  au- 
thorized, the  purchaser  is  entitled,  after 
the  time  for  redemjition  expires,  to  his 
deed,  and  may  compel  its  execution  and 
delivery.   Kelley  v.  Desmond,  63  Cal.  517. 


Legislation  8  693.  Enacted  March  11,  1872; 
l):is('(l  on  Practice  Act,  §  222,  which  had  the 
words  "shall  forfeit"  instead  of  "forfeits,"  in 
both  instances. 

Sheriff  to  determine  place  of  publication 
of  notice.  Under  this  section  and  §  692, 
ante,  it  is  the  duty  and  right  of  the  sheriff 
to  i)ul»lish  the  notice  of  sale  under  execu- 
tion foreclosure  decree,  and  he  alone  has 
the  power  to  determine  and  select  the 
places  and  newspapers  in  which  to  pub- 
lish the  required  notice.  Northern  Counties 
Investment  Trust  v.  Cadman,  101  Cal.  200; 
35  Pac.  557.  The  penalty  imposed  upon 
the  sheriff,  and  his  responsibility  for  dam- 
ages, are  inconsistent  with  atiy  alleged 
authority  of  the  plaintiflf  in  foreclosure 
to  dictate  the  places  or  papers  in  which 
the  notices  are  to  be  published,  and  are 
consistent  only  with  his  duty  and  power 
to  select  such  places  and  newspapers. 
Northwestern  Counties  Investment  Trust 
V.  Cadman,  101  Cal.  200;  25  Pac.  557;  and 
see  Richardson  v.  Tobin,  45  Cal.  30;  San 
Mateo  County  v.  Maloney,  71  Cal.  205;  12 
Pac.  53;  .Journal  Pub.  Co.  v.  Whitnev,  97 
Cal.  2S3;  32  Pac.  237;  Estate  of  O'Sull'ivan, 
84  Cal.  444;  24  Pac.  281. 

Effect  of  sale  without  notice.  The  ne- 
glect of  the  officer  making  the  sale  to  give 
the  notice  required  by  law  does  not  affect 
the  validity  of  the  sale;  but  the  party 
aggrieved  has  his  remedy  against  the 
officer  for  any  injury  sustained  by  reason 
of  such  neglect.  Smith  v.  Randall,  6  Cal. 
47;  65  Am.  Dec.  475;  Harvey  v.  Fisk,  9 
Cal.  93. 

Sheriff's  false  return.  The  sheriff's  re- 
turn upon  a  writ  of  execution,  certifying 
that  he  sold  the  jiroperty  after  due  notice, 
is  only  i)rima  facie  evidence  in  his  favor 
in  an  action  against  him  for  selling  the 
property  without  notice,  and  the  returns 
may  be  overcome  by  only  slight  evidence 
aliunde;  and  when  it  is  not  disputed  that 
the  sheriflf  has  himself  admitted  the  falsity 
of  the  return,  a  finding  that  the  recitals 
are  true,  based  ujion  no  other  evidence 
than  the  return  itself,  cannot  be  sustained. 
Raker  v.  Bucher,  100  Cal.  214;  34  Pac.  654. 
False  return,  defined.  The  term  "false 
return"  was  simply  the  specific  name, 
probably  derived  from  the  forms  of  the 
original  writ,  for  one  of  the  numerous 
classes  of  actions  on  the  case:  it  was  not 
an  action  in  rem  for  the  purpose  of  cancel- 
ing or  setting  aside  the  return,  in  order  to 
pave  the  way  for  another  action  for  dam- 
ages, but  was  itself  an  action  for  damages 


CODE  COMMISSIONERS'  NOTE.  If  the  sher- 
iff fails  to  give  the  required  notice,  this  section 
jjrescribes  the  remedy  against  him  tlierefor:  but 
the  failure  to  give  the  notice,  it  seems,  is  not 
sufficient  cause  for  avoiding  the  sale.  Smith  v. 
Kandall.  6  Cal.  47;  65  .Am.  Pec.  475.  Rut  if 
the    attempted    sale    was    a    nullity,    and    no    title 


§694 


EXECUTION'. 


826 


tion,  notwithstanding  he  did  not  give  the  required 


passed  bv  the  sheriff's  snlo,  then  no  injury  has  t.on.  »ot7>th''t«'i«'"S  he  flia  not  give  .n 
been  sustained  bv  the  judgment  debtor,  and  tho  notice.  Asliew  v.  Ebberts,  22  Cal.  263. 
sheriff  is  not   liable  for  damages,  under  this   sec- 

§  694.  Sales,  how  conducted.  Neither  the  officer  conducting  it  nor  his 
deputy  to  be  a  purchaser.  Real  and  personal  property,  how  sold.  Judg- 
ment debtor,  if  present,  may  direct  order  of  sale,  and  the  officer  shall  fol- 
low his  directions.  All  sales  of  property  under  execution  must  be  made  at 
auction,  to  the  highest  bidder,  between  the  hours  of  nine  in  the  morning 
and  five  in  the  afternoon.  After  sufficient  property  has  been  sold  to 
satisfy  the  execution,  no  more  can  be  sold.  Neither  the  officer  holding  the 
execution  nor  his  deputy  can  become  a  purchaser,  or  be  interested  in  any 
purchase,  at  such  sale.  When  the  sale  is  of  personal  property,  capable'  of 
manual  delivery,  it  must  be  within  view  of  those  who  attend  the  sale,  and 
be  sold  in  such  parcels  as  are  likely  to  bring  the  highest  price ;  and  when 
the  sale  is  of  real  property,  consisting  of  several  known  lots  or  parcels, 
they  must  be  sold  separately;  or  when  a  portion  of  such  real  property  is 
claimed  by  a  third  person,  and  he  requires  it  to  be  sold  separately,  such 
portion  must  be  thus  sold.  The  judgment  debtor,  if  present  at  the  sale, 
may  also  direct  the  order  in  which  property,  real  or  personal,  shall  be  sold, 
when  such  property  consists  of  several  known  lots  or  parcels,  or  of  articles 
which  can  be  sold  to  advantage  separately,  and  the  sheriff  must  follow 

such  directions. 

Calif ornian  Bank  v.  Cerf,  142  Cal.  303; 
75  Pac.  902;  and  see  San  Francisco  v. 
Pixley,  21  Cal.  56;  Blood  v.  Light,  38  Cal. 
649;  99  Am.  Dee.  441;  Browne  v.  Ferrea, 
51  Cal.  552;  Vigoureux  v.  Murphy,  54  Cal. 
346;  Marston  v.  White,  91  Cal.  37;  27  Pac. 
588;  Hibernia  Sav.  &  L.  Soc.  v.  Behnke, 
121  Cal.  339;  53  Pac.  812;  Conniek  v.  Hill, 
127  Cal.  162;  59  Pac.  832.  Where  the 
sheriff,  on  execution,  sells  separate  tracts 
of  land  en  masse,  the  creditor  has  his  rem- 
edy by  motion  to  set  aside  the  sale,  even 
if  a  stranger  becomes  the  purchaser  and 
pays  the  money  for  the  property.  Browne 
V.  Ferrea,  51  Cal.  552.  Where  parcels  of 
land  are  offered  for  sale  separately  at  a 
foreclosure  sale,  and  no  bid  is  made,  a 
sale  of  them  en  masse  is  void.  Beehtel  v. 
Wier,  152  Cal.  443;  15  L.  E.  A.  (N.  S.) 
549;  93  Pac.  75. 

Sale  of  parcels  separately.  The  judg- 
ment debtor  has  the  right  to  require  that 
separate  lots  or  parcels  shall  be  sold  sepa- 
rately, and  may  also  direct  the  order  in 
which  they  shall  be  sold.  Ontario  Land 
etc.  Co.  v.  Bedford,  90  Cal.  181;  27  Pac. 
39;  and  see  Leviston  v.  Swan,  33  Cal.  480. 
A  judgment  debtor  desiring  property  sold 
in  separate  parcels  should  proceed  to  that 
end  in  accordance  with  this  section;  and 
where  one  has  any  interest  in  any  lands 
described  in  a  complaint  in  foreclosure, 
that  is  not  covered  by  a  mortgage,  or  if 
he  has  any  equity  that  he  desires  to  have 
protected,  he  may  present  the  matter  to 
the  trial  court  in  a  proper  manner,  and 
where  he  fails  to  present  any  such  matter 
in  any  manner,  he  cannot,  on  appeal,  be 


Auctioneer,  sheriff  as.     Pol.  Code,  §  3291. 

Legislation  S  694.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  223),  (1)  in  first  sen- 
tence, (a)  changing  "shall"'  to  "must,"  before 
"be  made,"  and  (b)  omittine;  the  words  "and 
shall  be  made,"  before  "between";  (2)  changing 
"shall"  to  "can,"  before  "be  sold"  and  before 
"become";  (3)  in  sentence  beginning  "When  the 
sale,"  (a)  changing  "shall"  to  "must"  before 
"be  within,"  before  "be  sold,'  and  before  "be 
thus,"  and  (b)  omitting  the  word  "and"  before 
"consisting";  (4)  in  last  line,  changing  "shall 
be  bound  to"   to  "must." 

Sale  en  masse.  A  sale  en  masse  is  not 
necessarilv  void,  nor  even  irregular.  Beeh- 
tel V.  Wier,  152  Cal.  443;  15  L.  R.  A. 
(N.  S.)  549;  93  Pac.  75.  The  rule,  that 
Bales  en  masse,  of  land  consisting  of  sepa- 
rate tracts,  will  not  be  countenanced  in 
courts  of  justice,  does  not  go  to  the  extent 
of  allowing  the  debtor,  by  misleading  the 
officer  by  means  of  a  false  description,  or 
by  withholding  information,  to  invalidate 
a  sale  under  execution,  made  in  good  faith 
in  the  entire  absence  of  fraud.  Smith  v. 
Randall,  6  Cal.  47;  65  Am.  Dee.  475.  The 
sale  of  separate  parcels  en  masse,  in  dis- 
regard of  the  requirements  of  the  statute, 
is  not  void,  but  only  voidable,  and  subject 
to  be  set  aside  on  timely  application,  and 
such  sale  en  masse  is  not  forbidden,  where 
the  parcels  cannot  be  separately  sold;  but 
while  this  rule  is  controlling  and  should 
be  strictly  followed,  yet  it  cannot  be  held 
to  apply  where  each  distinct  parcel  is  first 
offered  for  sale  separately  and  no  bids  are 
received ;  in  such  case,  the  property  may 
then  be  offered  and  sold  as  a  whole,  and 
the  sale  will  be  upheld,  unless  other  rea- 
sons  appear  for   setting  it  aside.    Anglo- 


;827 


SALES — POSTPONEMENT — INJUNCTION — DUTY     OF    SHERIFF. 


§694 


heard  to  complain,  roiinty  Bank  v.  GoM- 
tree,  129  Cal.  160;  Gl  Pae.  78o.  The  ob- 
ject of  the  statute  in  ri'qiiirinK  the  sale 
to  be  by  parcels  is  to  afforii  the  judfjmeiit 
debtor  an  opportunity  to  reijoom  any  of 
the  parcels.  Ilibernia  Sav.  &  L.  Soc.  v. 
BehnUe,  121  Cal.  339;  53  Pac.  812.  Where 
several  water-ditches,  and  water  rij^hts 
appertaining  thereto,  constitute  a  sinj^lo 
connected  system  of  water-supply,  so  that 
some  of  the  ditches  would  be  useless  if 
owned  and  held  by  different  parties,  they 
may  be  sold  under  execution  as  a  single 
parcel;  and  the  question  whether  such 
ditches  constitute  one  parcel  or  several 
parcels  is  one  of  fact.  Gleason  v.  Hill, 
-65  Cal.  17;  2  Pac.  413.  Where  separate 
known  parcels  of  land  are  offered  for  sale 
separately  in  foreclosure  proceedings,  and 
-no  offer  or  bid  is  made  for  any  one  parcel, 
the  property  may  be  offered  and  sold  in 
one  parcel.  Connick  v.  Hill,  127  Cal.  162; 
59  Pac.  832;  and  see  Marston  v.  White,  91 
•Cal.  37;  27  Pac.  588.  The  court,  in  a  fore- 
•closure  suit,  has  jurisdiction  to  provide  in 
the  decree  in  what  parcel  or  parcels  the 
mortgaged  premises  shall  be  sold.  Ho])- 
kins  V.  Wiard,  72  Cal.  259;  13  Pac.  687; 
Bank  of  Sonoma  County  v.  Charles,  86  Cal. 
322;  24  Pac.  1019. 

Sale  under  decree  of  foreclosure.  This 
section  relates  to  sales  under  executions, 
in  cases  where  there  have  been  no  con- 
tracts between  the  parties  as  to  the  man- 
ner of  the  sale;  hence,  where  there  is  an 
■express  provision  in  the  mortgage,  that,  in 
case  a  foreclosure  shall  be  necessary,  the 
land  shall  be  sold  in  a  certain  manner,  and 
the  court,  in  its  decree,  followed  that  pro- 
vision, there  is  no  error.  Bank  of  Sonoma 
County  V.  Charles,  86  Cal.  322;  24  Pac. 
1019.  The  last  sentence  of  this  section  is 
applicable  to  sales  under  a  decree  of  fore- 
closure, only  where  the  decree  is  silent  as 
to  the  manner  or  order  in  which  the  sepa- 
rate parcels  shall  be  sold.  Marston  v. 
White,  91  Cal.  37;  27  Pac.  588;  Estudillo 
V.  Security  Loan  etc.  Co.,  149  Cal.  556;  87 
Pac.  19;  and  see  Ontario  Land  etc.  Co.  v. 
Bedford,  90  Cal.  181;  27  Pac.  39.  The  par- 
ties to  a  mortgage  or  a  deed  of  trust  may 
■contract  that  the  premises  shall  be  sold 
as  a  whole;  and  such  agreement  is  enforce- 
able. Humboldt  Sav.  Bank  v.  McCleverty, 
161  Cal.  285;  119  Pac.  82;  Bank  of  Sonoma 
County  V.  Charles,  86  Cal.  322;  24  Pac. 
1019.  Where  a  mortgage  contains  an  ex- 
press stipulation  for  the  sale  of  the  prem- 
ises in  one  large  parcel,  and  in  several 
other  smaller  parcels,  the  decree  of  fore- 
closure may  direct  the  sale  to  be  made 
accordingly.  Bank  of  Sonoma  County  v. 
•Charles,  86  Cal.  322;  24  Pac.  1019.  Where 
the  trustees  in  a  deed  of  trust  have  a  dis- 
cretion to  sell  as  a  whole  or  in  parcels, 
they  are  bound  to  exercise  it  in  good  faith 
:for  the  best  interests  of  their  beneficiaries, 


who  include  not  only  the  creditor,  but  the 
(leMor  and  his  successors  in  interest.  Hum- 
boldt Sav.  Bank  v.  McCleverty,  161  Cal. 
285;  119  Pac.  82. 

Postponement  of  sale.  A  commissioner, 
appointed  by  the  court  to  sell  property  in 
a  foreclosure  jiroceeding,  is  not  guilty  of 
an  abuse  of  discretion  in  refusing  to  post- 
pone the  sale,  where  -no  reason  ai)pear9 
why  the  sale  should  have  been  i)08tponed. 
Connick  v.  Hill,  127  Cal.  162;  59  Pac.  832. 

Injunction  against  sale.  The  owner  in 
possession  of  land  is  entitled  to  enjoin  a 
threatened  sale  thereof  under  the  defend- 
ant's execution,  where  such  sale  would  be 
sufficient  to  cast  a  doubt  as  to  the  valid- 
ity of  the  plaintiff's  title  and  to  cast  a 
cloud  upon  it,  although  the  sale  woubi  be 
ineffectual  to  pass  title  to  a  purchaser. 
Porter  v.  Pico,  55  Cal.  165;  and  see  Pixley 
V.  Huggins,  15  Cal.  127;  Fulton  v.  Hanlow, 
20  Cal.  450;  Marriner  v.  Swift,  27  Cal.  649; 
Ramsdell  v.  Fuller,  28  Cal.  37;  87  Am. 
Dec.  103;  Thompson  v.  Lynch,  29  Cal.  189. 
An  injunction  will  issue  to  restrain  the 
sale  of  property  levied  on  execution,  on 
the  ground  that  the  sale,  and  the  sheriff's 
deed  in  pursuance  of  it,  will  cast  a  cloud 
on  the  plaintiff's  title,  where  the  sale  was 
threatened  on  a  judgment  for  a  deficiency. 
Simpson  v.  Castle,  52  Cal.  644. 

Duty  and  liability  of  sheriff.  The  sheriff 
has  no  right  to  sell  at  private  sale,  or  to 
authorize  any  one  else  to  do  so.  Sheehy 
v.  Graves,  58  Cal.  449.  He  is  boun<l  to 
follow  the  directions  of  the  judgment 
debtor  as  to  the  order  in  which  the  i)rop- 
erty  shall  be  sold.    Vigoureu.x   v.  Murphy, 

54  Cal.  346.  Where  there  are  several  exe- 
cutions in  the  hands  of  the  officer  at  the 
same  time,  under  which  the  lands  are  sold, 
the  proceeds  must  be  applied  first  to  the 
satisfaction  of  the  oldest  existing  judg- 
ment lien.  Bagley  v.  Ward,  37  Cal.  121;  99 
Am.  Dec.  256.  Where  the  sale  was  set 
a.<»ide,  the  sheriff  can  be  liable  only  for 
his  failure  to  retake  the  property  after 
the  sale  was  so  set  aside;  and  whether  he 
was  liable  for  such  failure  involves  ques- 
tions of  fact,  the  verdict  of  the  jury  upon 
which  will  not  be  disturbed,  where  there 
is  a  conflict  in  the  evidence.  Orton  v. 
Brown,  113  Cal.  561;  45  Pac.  835.  W^here 
the  plaintiff's  property,  exempt  from  exe- 
cution, is  seized  and  sold  by  the  sheriff, 
and  is  repurchased  by  the  plaintiff  from 
the  purchaser  at  the  sheriff's  sale,  the 
measure  of  damages  is  the  amount  jiaid  to 
repurchase  the  property.  Blewett  v.  Miller, 
131  Cal.  149;  63  Pac.  157.  The  legal  pre- 
sumption is,  that  the  officer  discharged  the 
duty  required  of  him  according  to  law,  and 
that  the  levy  was  made  in  compliance  with 
the  directions  of  the  writ.    Porter  v.  Pico, 

55  Cal.  165. 

Sheriff's  deed.  The  execution  upon  the 
judgment   is   a   sufficient   authority   to   the 


§694 


h 


V 


lA/ 


^   A     \ 


EXECUTION. 


82S 


sheriff  to  sell  the  real  property  in  his 
possession,  and  the  deed  which  he  makes 
relates  back  to  the  date  of  the  lien  per- 
petuated by  the  judgment.  Porter  v.  Pico, 
55  Cal.  165. 

Validity  of  execution  sales.  The  rule 
is,  to  consider  every  sale  as  final,  where 
made  by  an  officer  of  the  court,  under  the 
mandate  thereof.  •  Connick  v.  Hill,  127 
Cal.  162;  59  Pac.  S32;  and  see  Hopkins  v. 
Wiard,  72  Cal.  259;  13  Pac.  687.  The  rule 
of  caveat  emptor  applies  to  sales  under 
execution  (Meherin  v.  Saunders,  131  Cal. 
681;  54  L.  E.  A.  272;  63  Pac.  1084);  but 
the  rule  has  never  been  carried  to  the  ex- 
tent that  such  sales  could  not  be  impeached 
on  the  eround  of  fraud  or  misrepresenta- 
tion. Webster  v.  Haworth,  S  Cal.  21;  68 
Am.  Dee.  287.  An  execution  sale  on  fore- 
closure is  not  void,  unless  conducted  in  a 
manner  prohibited  by  statute,  of  by  the 
terms  of  the  decree:  a  sale  en  masse  is 
not  necessarily  void,  nor  even  irregular. 
Bechtel  v.  Wier,  152  Cal.  443;  15  L.  E.  A. 
(N.  S.)  549;  93  Pac.  75.  The  purchaser 
at  a  sale  on  execution  under  a  void  judg- 
ment finds  himself  without  title.  Sullivan 
V.  Mier,  67  Cal.  264;  7  Pac.  691;  and  see 
Emerie  v.  Alvarado,  64  Cal.  529;  2  Pac. 
418.  Inadequacy  of  price  is  not  a  ground 
for  setting  aside  a  sale,  particularly  under 
our  practice,  where  the  judgment  debtor  is 
allowed  to  redeem  (Connick  v.  Hill,  127 
Cal.  162;  58  Pac.  832;  Anglo-Calif ornian 
Bank  v.  Cerf,  142  Cal.  303;  75  Pac.  902); 
but  it  is  a  fact  which,  in  connection  with 
other  circumstances,  may  establish  fraud  in 
the  oflScer  making  the  sale.  Smith  v.  Ean- 
dall,  6  Cal.  47;  65  Am.  Dec.  475.  Where  the 
plaintiff  in  the  execution  is  the  purchaser, 
the  court  will  set  aside  the  sale,  upon 
motion,  before  he  conveys  to  another;  but 
after  he  convej's  to  a  third  person,  and 
when  the  third  person  becomes  a  pur- 
chaser, the  court  will  not  determine,  in 
this  summary  way,  questions  which  may 
affect  the  rights  of  others,  not  before  the 
court,  and  without  the  opportunity  of  ex- 
plaining away  those  circumstances  which 
might  destroy  his  title.  Bryan  v.  Berry, 
8  Cal.  130;  and  see  San  Francisco  v.  Pix- 
ley,  21  Cal.  56.  The  burden  is  upon  the 
party  seeking  to  set  aside  the  sale,  to  show 
such  an  irregularity  or  material  departure 
from  the  statute  as  will  justify  such  course. 
Connick  v.  Hill,  127  Cal'.  162;  59  Pac.  832; 
Anglo-Californian  Bank  v.  Cerf,  142  Cal. 
303;  75  Pac.  902.  The  sale  certainly  can- 
not be  disturbed,  where  the  court  found, 
upon  conflicting  evidence,  that  the  full 
value  of  the  property  sold  was  less  than 
the  total  purchase  price.  Connick  v.  Hill, 
127  Cal.  162;  59  Pac.  832. 

Bedemption.  The  sale  of  personal  prop- 
erty upon  execution  is  not  subject  to  con- 
firmation by  the  court,  nor  has  the  execu- 
tion   defendant    any    right    of   redemption; 


such  sale  is  completed  by  the  payment  of 
the  sum  bid,  and  the  purchaser  is  then  en- 
titled to  the  immediate  possession  of  the 
property.  Orton  v.  Brown,  113  Cal.  561;^ 
45  Pac.  835.  Any  redemption  from  the 
sale  must  be  of  the  land  sold,  and  accord- 
ing to  parcels  in  which  it  was  sold.  Hiber- 
nia  Sav.  &  L.  Soc.  v.  Behnke,  121  Cal.  339; 
53  Pac.  812. 

Appeal.  Where  the  sale  is  directed  for 
the  purpose  of  satisfying  any  lien  other 
than  a  mortgage  lien,  the  undertaking  on 
appeal  need  not' provide  for  the  paj'uient 
of  any  deficiency  which  the  judgment  may 
direct;  to  this  extent,  the  statute  discrimi- 
nates in  favor  of  the  mortgage  lien,  and 
against  all  other  liens.  Englund  v.  Lewis,. 
25  Cal.  337. 

Sale  of  more  land  than  is  necessary.  See  note 
13  Am.  Dec.  212. 

Validity  of  sale  en  masse  when  judgment  de- 
fendant owns  an  undivided  interest  in  the  land. 
See  note  23  Am.  St.  Kep.  651. 

Judicial  or  sheriff's  sale  en  masse.  See  notes 
8  Ann.  Cas.  741  ;  Ann.  Ca,s.  1913B,  609. 

Persons  incapacitated  from  purchasing.  See 
note  136  Am.  St.  Kep.  789. 

Right  of  tenant  in  common  to  buy  common 
property  at  judicial  sale  or  sale  under  power  in 
trust  deed.    See  note  17  Ann.  Cas.  1169. 

Validity  of  sale  under  satisfied  judgment.  See 
note  137  Am.  St.  Rep.   1091. 

CODE  COMMISSIONERS'  NOTE.  1.  This  sec- 
tion is  merely  directory,  so  far  as  it  deals  with, 
the  manner  in  which  the  officer  is  required  to 
execute  the  writ.  Blood  v.  Light,  38  Cal.  654; 
99  Am.  Dec.  441,  and  cases  cited. 

2.  Neither  the  officer  nor  his  deputy  can  be- 
come a  purchaser.  Jenkins  v.  Frink,  30  Cal.  591; 
89  Am.  Dec.  134. 

3.  Right  of  pledgee  to  buy  at  sheriff's  sale.. 
"Wright  V.  Ross,  36  Cal.  415. 

4.  Title  of  purchaser  does  not  depend  upon  the 
return  of  the  sheriff.  Blood  v.  Light,  38  Cal.  653  ; 
99  Am.  Dec.  441;  Low  v.  Adams,  6  Cal.  281; 
Egery  v.  Buchanan,  5  Cal.  56. 

5.  Execution  sale,  when  set  aside.  If  property 
was  sold  to  the  judgment  creditor,  on  execution, 
for  the  full  amount  of  the  judgment,  and  after- 
wards judgment  was  reduced  in  amount,  on  an 
appeal  to  the  supreme  court  it  was  held,  that, 
though  the  sale  was  valid  when  made,  yet,  upon 
modification  of  the  judgment,  the  sale  was  liable 
to  be  set  aside,  on  application  of  the  owners, 
either  by  the  supreme  court,  or  the  court  below 
on  return  of  the  case,  or  by  action  against  the 
purchasers  by  owners.  But,  unless  some  of  these 
steps  are  pursued,  the  sale  remains  unaffected 
by  the  modification  of  judgment.  Johnson  v.- 
Laraping,  84  Cal.  293. 

6.  Execution  sales.  When  valid,  when  void. 
Sales  to  persons  buying  in  good  faith,  under  void- 
able executions,  are  valid,  though  the  execution 
be  afterwards  set  aside ;  but  sales  under  void 
executions  are  invalid.  See  Hunt  v.  Loucks,  38 
Cal.  373:   99   Am.  Dec.  404. 

7.  Sale  where  judgment  is  void.  Moore  v.- 
Martin,  38  Cal.  437.  A  sale  under  a  void  judg- 
ment does  not  pass  title;  but  otherwise,  if  the 
judgment  was  only  voidalsle.  Gray  v.  Hawes,  8 
Cal.  563. 

8.  Land  sold  in  gross.  Where  the  land  con- 
sisted of  separate  but  adjoining  tracts,  and  debtor- 
did  not  direct  sale  by  separate  parcels,  and  the 
purchaser  and  the  sheriff  were  ignorant  of  the 
subdivisions,  the  sale  in  gross  was  held  valid. 
Smith  V.  Randall,  6  Cal.  47;  65  Am.  Dec.  475. 
Land  should  be  sold  in  separate  parcels.  See 
Raun  V.  Reynolds,  11  Cal.  15.  A  sale  in  gross, 
under  a  writ  of  execution,  of  real  estate,  con- 
sisting of  several  known  and  distinct  parcels,  at 
a  price  greatly  below  the  actual  value  of  the- 
property,    cannot   be   sustained   against   the   objec- 


529      REFUSAL  TO  PAY   BID— SUBSEQUENT  BID— OFFICER'S  LIABILITY.       §§  695-691 


tion  of  tlip  judKmcnt  dol)tor.  AltliDiish  not  abso- 
lutely void,  it  is  voidable,  and  will  be  get  aside, 
upon  reasonable  and  proper  application,  when 
there  is  reasonable  ground  for  belii'f  that  it  is 
less    beneficial    to   the    creditor   or    debtor    tliaTi    it 


would   have  been  had   a  difTert-nt   mode  been  pur- 
Kued.    San  Francisco  v.  Pixley,  21  Cal.  57. 

9.   Generally.    McKenzie  t.  Dickinson,   43   Cal. 
119. 


§  695.  If  purchaser  refuses  to  pay  purchase-money,  what  proceedings. 
If  a  purcliaser  refuse  to  pay  the  amount  hid  l)y  liim  for  property  .slnn-k  off 
to  him  at  a  sale  under  execution,  the  officer  may  a^'ain  .sell  the  property 
at  any  time  to  the  hiyhe.st  hidder,  and  if  any  loss  be  occasioned  thereby, 
the  officer  may  recover  the  amount  of  such  loss,  with  costs,  from  the  bidder 
so  refusing:,  in  any  court  of  competent  jurisdiction. 

thereof,  although  the  latter  .iiil  not   kuow 


Legislation  K  695.  1.  Knacted  March  11.  1872; 
based  on  Practice  Act,  §  224,  which,  after  the 
words  "with  costs,"  read:  "by  motion,  upon  pre- 
vious notice  of  five  days  before  any  court,  or 
before  any  justice  of  the  peace,  if  the  same  shall 
not  exceed  his  jurisdiction."  When  enacted  in 
1872,  in  last  line,  the  word  "shall"  was  changed 
to  "does." 

2.   Amended   by  Code  Amdts.  1873-74,  p.  32.3. 

Misrepresentations  excuse  payment. 
Where  a  j)arty  purchases  real  estate  at  an 
execution  sale,  upon  the  faith  of  the  rep- 
resentations of  the  judgment  creditor  that 
his  judiiinent  is  the  first  upon  the  property, 


of  the  check  being  received  by  the  officer, 
since  the  judgment  debtor  may  be  treated 
as  the  equitable  assignee  of  the  rights  of 
the  officer.    Meherin   v.  Saunders,   l.'U  Cal. 
681;   54  L.   R.   A.  272;   63   Pac.   10S4.     The 
question  whether  the  ])urchaser  at  an  exe- 
cution  sale  paid   his   bid   is  to   be  decided 
upon  the  evidence,  apart  from  the  return 
of   sale,   where   he   is   not   a   party   to   the 
action  in  which  the  execution  issued,  and 
is   neither   bound   by   the   return    nor   pro- 
when  in  fact  there  are  prior  encumbrances       tected   by    it.      Meherin    v.   Saunders,    131 
on  it  for  more  than  its  value,  he  is  entitled       Cal.  6S1;  54  L.  R.  A.  272;  63  Pac.  1084. 
to  relief,  and  the  judgment  creditor  should  code  COMMISSIONERS'  NOTE.     The  buyer 

at  the  sale  must  pay  the  whole  amount  down  in 
cash,  or  he  acquires  no  rif;ht  whatever  against 
the  sherifi"  for  property  sold.  People  v.  Hays,  5 
Cal.  66:  Williams  v.  Smith,  6  Cal.  91.  'if  a 
party  purchased  real  estate  at  a  sheriff's  sale,  on 
the  representation  of  a  judgment  creditor  that 
his  judgment  was  the  first  on  the  property,  when, 
in  fact,  there  were  prior  judgments,  the  pur- 
chaser should  be  relieved,  and  the  judgment 
creditor  estopped  fiom  claiming  an  advantage  re- 
sulting from  his  own  misrepresentations.  Caveat 
emptor  applies  to  judicial  sales,  but  it  has  many 
limitations  and  e.xceptions.  Webster  v.  Haworth, 
8  Cal.  21  ;  68  Am.  Dec.  287.  In  an  action 
against  a  purchaser  at  sheriff's  sale  for  not  pay 
ing  the  amount  of  his  bid,  it  is  no  defense  th.it 
a  sufficient  notice  of  the  sale  was  not  given.  If 
such  be  the  fact,  the  purchaser  has  a  remedy 
against  the  sheriff.  Harvey  v.  Fisk,  9  Cal.  93. 
In  an  action  to  compel  payment  by  delinquent 
purchaser  at  judicial  sale,  the  statement  of  the 
sheriff,  upon  which  the  motion  is  based,  need  not 
state,  in  terms,  "that  loss  was  occasioned"  by 
failure  to  pay  the  amount  bid.  An  averment  of 
the  amount  bid,  and  a  resale  at  a  specilied  smaller 
sum,  is  sufficient.  Johns  v.  Trick,  22  Cal.  511. 
C:iveat  emptor — its  application.  See  Boggs  v 
Fowler,  16  Cal.  560  ;  76  Am.  Dec.  561. 


■be  estopped  from  claiming  an  advantage 
resulting  from  his  own  misrepresentations, 
•whether  made  ignorantlv  or  willfully. 
Webster  v.  Haworth,  8  Cal."  21;  68  Am.  Dec. 
■287. 

Actions  against  bidders.  The  tender  of 
a  certificate  of  sale  is  not  required  as  the 
Ijasis  of  an  action  to  recover  the  jiurehase- 
■money.  Harvey  v.  Fisk,  9  Cal.  93;  People 
V.  Hays,  5  Cal.  66;  Williams  v.  Smith,  6 
■Cal.  91.  In  an  action  against  a  defaulting 
bidder,  the  complaint  need  not  necessarily 
use  the  precise  language  of  the  statute:  an 
-averment  of  the  amount  of  the  bid  and  a 
resale  at  a  specified  smaller  amount  is 
sufficient.  Johns  v.  Trick,  22  Cal.  511.  A 
purchaser  at  an  execution  sale,  who  pays 
part  in  cash  and  part  by  check,  and  who 
afterwards  procures  the  check  from  the 
officer  and  destroys  it,  is  subject  to  a  suit 
by   the   judgment    debtor   for   the    amount 

§  696.  Officer  may  refuse  such  purchaser's  subsequent  bid.  Wlien  a 
purchaser  refuses  to  pay,  the  officer  may,  in  his  discretion,  thereafter  re- 
ject any  subsequent  bid  of  such  person. 


Legislation  S  696.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  225,  which  read:  "Such 
court  or  justice  shall  proceed  in  a  summary  man- 
ner and  give  judgment,  and  issue  e.\ecution  there- 
for forthwith,  but  the  defendant  may  claim  a 
jury.  And  the  same  proceedings  may  be  had 
against  any  subsequent  purchaser  who  shall  re- 
fuse to  pay,  and  the  officer  may,  in  his  discretion, 
thereafterreject   the  bid  of  any   person  so   refus- 


ing." When  §  696  was  enacted  in  1872,  (1)  the 
words  "or  justice  shall"  were  changed  to  "of  jus- 
tice must,"  and  (2)  the  words  "shall  refuse" 
were   changed   to    "refuses." 

2.    Amended   by  Code  Amdts.  1873-74,  p.  323. 

CODE  COMMISSIONERS'  NOTE.  Askew  v. 
Ebberts,  22  Cal.  264;  Johns  v.  Trick,  22  Cal. 
511. 


§  697.  These  two  sections  not  to  make  officer  liable  beyond  a  certain 
amount.  The  two  preceding  sections  must  not  be  construed  to  make  the 
officer  liable  for  any  more  than  the  amount  bid  by  the  second  or  subsequent 
purchaser,  and  the  amount  collected  from  the  purchaser  refusing  to  pay. 


§§  698,  699 


EXECUTION. 


830 


Legislation  §  697.     Enacted  March    11,    1872;        word  "Bhall"  instead  of  "must." 
based    on    Practice    Act,    §    226,    which    had    the 

§  698.  Personal  property  not  capable  of  manual  delivery,  how  delivered 
to  purchaser.  When  a  purchaser  of  any  personal  property  capable  of  man- 
ual delivery  pays  the  purchase-money,  the  officer  making  the  sale  must 
deliver  to  the  purchaser  the  property,  and,  if  desired,  execute  and  deliver 
to  him  a  certificate  of  the  sale.  Such  certificate  conveys  to  the  purchaser 
all  the  right  Avhich  the  debtor  had  in  such  property  on  the  day  the  execu- 
tion or  attachment  was  levied. 

Certificate  of  sale.     See  post,  §  699. 

Legislation  §  698.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  227),  (1)  changing 
"shall  pay"  to  "pays";  (2)  changing  "shall"  to 
"must,"  before  "deliver";  (3)  omitting  "shair'_ 
before  "execute";  (4)  omitting  "and  payment" 
after  "sale,"  at  end  of  lirst  sentence:  (5)  chan- 
ging "shall  convey"  to  "conveys";  (6)  omitting 
"title,  and  interest."  after  "ris-ht" ;  (7)  omitting 
"and  to"  before  "such  property";  and  (8)  add- 
ing  "or  attachment,"   in  last   line. 

Sale  by  court  commissioner.  The  com- 
missioner appointed  to  sell  personal  prop- 
erty upon  the  foreclosure  of  a  chattel  mort- 
gage is  simply  a  substitute  for  the  sheriff, 
and  he  must  make  the  sale  in  like  manner 
as  the  sheriff  v/ould  be  required  to  do; 
and  property   capable   of  manual  delivery 

§  699.  Personal  property  not  capable  of  manual  delivery,  how  sold  and 
delivered.  When  the  purchaser  of  any  personal  property  not  capable  of 
manual  delivery  pays  the  purchase-money,  the  officer  making  the  sale  must 
execute  and  deliver  to  the  purchaser  a  certificate  of  sale.  Such  certificate 
conveys  to  the  purchaser  all  the  right  which  the  debtor  had  in  such  prop- 
erty on  the  day  the  execution  or  attachment  was  levied. 

Attachment.    Personalty  not  capable  of  manual        tion  of  the  facts  determining  the  value  of 


must  be  taken  into  possession  and  deliv- 
ered to  the  purchaser  upon  the  sale. 
Pacific  Investment  Co.  v.  Ross,  131  Cal. 
8;  63Pac.  67. 

Rights  of  purchaser  who  is  execution 
creditor.  Where  the  purchaser  at  an  exe- 
cution sale  is  the  execution  creditor,  the 
rule  that  the  sale  under  execution  conveys 
to  the  purchaser  all  the  right  which  the 
debtor  has  in  the  property  on  the  day  the- 
execution  is  levied  does  not  apply.  Mat- 
teucci  V.  Whelan,  123  Cal.  312;  69  Am.  St. 
Rep.  60;  55  Pac.  990. 

CODE  COMMISSIONERS'  NOTE.  See  Wel- 
lington V.  Sedgwick,   12  Cal.  469. 


delivery.    Ante,  §  542. 

Legislation  8  699.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  228),  (1)  changing 
"shall  pay"  to  "pays":  (2)  changing  "shaU"  to 
"must"  before  "execute";  (3)  omitting  "and  pay- 
ment" after  "certificate  of  sale";  (4)  changing 
"shall  convey"  to  "conveys";  (5)  omitting  "title 
and  interest"  after  "right";  (6)  omitting  "and 
to"  after  "had  in";  (7)  adding  "or  attachment' 
in  last  line. 

Buyer  takes  as  innocent  purchaser  for 

value.  An  execution  sale  is  simply  a 
transfer  of  the  debtor's  title  to  the  pur- 
chaser; and  if  the  buyer,  by  reason  of  his 
ignorance  of  a  prior  assignment,  takes  a 
superior  title,  this  favorable  situation 
comes  from  the  fact  that  he  is  an  inno- 
cent purchaser  for  value,  and  not  from 
the  fact  that  he  buys  at  execution  sale. 
Widenmann  v.  Weniger,  164  Cal.  667;  130 
Pac.  421. 

Contracts.  Contingent  and  complicated 
contracts  cannot  be  levied  upon  and  sold 
under  execution  without  being  in  the  pos- 
session of  the  officer  at  the  sale,  to  be 
exhibited  to  the  bystanders  and  assigned 
to  the  purchaser,  unless  a  full  and  accu- 
rate description  of  the  particular  interest 
and  chose  in  action,  with  all  of  its  con- 
ditions and  covenants,  and  a  full  explana- 


the  thing,  be  given  by  the  levy  and  an- 
nounced at  the  sale.  Crandall  v.  Blen,  13 
Cal.  15. 

Unregistered  stock.  A  transfer  of  un- 
registered stock  is  valid  as  against  a  mere 
levy  of  attachment  or  execution,  by  a. 
creditor,  against  the  person  in  whose  name- 
it  stands  upon  the  books.  National  Bank 
V.  Western  Pacific  Ry.  Co.,  157  Cal.  573; 
27  L.  R.  A.  (N.  S.)  987;  21  Ann.  Cas..  1391;, 
108  Pac.  676. 

CODE  COMMISSIONERS'  NOTE.  The  pur- 
chaser of  a  judgment  on  sale  under  execution  and 
levy  takes  as  assignee  only.  The  judicial  sale- 
of  a  judgment  passes  no  title,  other  than  would 
pass  by  an  assignment  by  the  owner.  Fore  v. 
Manlove,  18  Cal.  436.  The  word  "officer,"  in 
the  two  preceding  sections,  means  the  incumbent, 
at  the  time  of  the  act  of  sale;  and  if  he  be  dead, 
his  successor  cannot  perform  the  duty.  People  v. 
Boring,  8  Cal.  406;  68  Am.  Dec.  3?.!.  A  sher- 
iff's bill  of  sale  of  personal  property  sold  on  exe- 
cution need  not  contain  all  the  formalities  of  a. 
regular  certificate.  When  a  sheriff,  without  au- 
thority, sells  personal  property  on  an  execution, 
if  the  judgment  debtor  was  present,  and  assented 
to  the  sale,  the  purchaser  will  acquire  a  good 
title  against  the  judgment  debtor.  Lay  v.  Neville, 
25  Cal.  551;  Woods  v.  Bugbey,  29  Cal.  469; 
generally,  see  Davis  v.  Mitchell,  34  Cal.  87,  com- 
mented on  in  note  to  §  691,  ante;  see  also  Sargent. 
V.  Sturm,  23  Cal.  359;   83  Am.  Dec.  118. 


831 


REAT.    PROPERTY EFFECT   OF   SHERIFF  S   DEED. 


§700 


§  700.  Sale  of  real  property.  What  purchaser  is  substituted  to  and  ac- 
quires. ri)oii  a  sale  of  real  property,  the  purchaser  is  substituted  to  and 
acciuires  all  the  right,  title,  interest,  and  claim  of  the  jud^'nient  debtor 
thereto  on  the  date  of  the  levy  of  the  execution  thereon,  where  such  judg- 
ment is  not  a  lien  upon  sncli  property;  if  the  judgment  is  a  lien  upon  the 
real  property  the  purchaser  is  substituted  to  and  actpiires  all  the  rierht. 
title,  interest,  and  claim  of  the  judgment  debtor  on  or  at  any  time  after 
the  day  such  judgment  became  a  lien  on  such  property ;  and  in  case  prop- 
erty, real  or  personal,  has  been  attached  in  the  action,  the  purchaser  is 
substituted  to  and  aecpiires  all  the  right,  title,  interest  and  claim  of  the 
judgment  debtor  on  or  at  any  time  after  the  day  the  attachment  was  levied 
upon  such  property. 

any  and  all  interests  in  real  property,  and 
to  declare  in  what  cases  it  should  be  sub- 
ject to  redemption;  it  apjdies  alike  to  sales 
made  to  enforce  the  lien  of  the  judgment, 
and  to  sales  of  chattels  real  to  enforce 
liens  created  by  the  levy  of  an  execution; 
and  its  language  cannot  be  considered  as 
a  legislative  construction  of  the  words 
"real  property,"  so  as  to  fix  the  meaning 
of  these  words  as  used  in  §  671,  ante,  pro- 
viding for  judgment  liens.  Summerville  v. 
Stockton  Milling  Co.,  142  Cal.  529;  76  Pac. 
24;!. 

Effect  of  sheriff's  deed.  A  sheriff's  deed,, 
in  pursuance  of  an  execution  sale  under  a 
decree  of  foreclosure,  conveys  to  the  pur- 
chaser all  the  right,  title,  and  interest  of 
the  judgment  debtor  in  the  property  sold, 
and  such  title  relates  to  the  date  of  the 
mortgage.  Freelon  v.  Adrian,  161  Cal.  13; 
118  Pac.  220.  The  sheriff's  deed  does  not 
transfer  any  after-acquired  interest  in  the 
land;  and  the  judgment  debtor  is  not 
estopped  from  showing,  in  an  ejectment 
suit  against  him,  that,  subsequently  to 
the  execution  sale,  he  acquired  a  different 
title  from  that  which  was  sold  under  the 
judgment.  Emerson  v.  Sansome,  41  Cal. 
552;  Robinson  v.  Thornton,  102  Cal.  675; 
34  Pac.  120.  The  transfer  is  not  perfect 
until  the  execution  and  delivery  of  the 
sheriff's  deed;  but,  by  the  doctrine  of  rela- 
tion, the  deed,  when  thus  executed,  is  to 
be  deemed  and  taken  as  though  executeil 
at  the  date  when  the  lien  originated. 
Foorman  v.  Wallace,  75  Cal.  552;  17  Pac. 
680.  The  execution  of  the  deed  gives  ta 
the  purchaser  at  the  sheriff's  sale  no  new 
title  to  the  land  purchased  by  him,  but  is 
mereh'  evidence  that  his  title  has  become 
absolute;  upon  the  sale  he  acquires  all 
the  right,  title,  interest,  and  claim  of  the 
judgment  debtor  thereto,  subject  to  be 
defeated  by  a  redemiition  within  the  statu- 
tory period,  and  to  the  right  of  the  judg- 
ment debtor  to  remain  in  the  possession 
of  the  land  until  the  execution  of  the 
sheriff's  deed,  aiid  all  that  remains  in  the 
judgment  debtor  is  the  right  to  redemp- 
tion, and  to  retain  possession  of  the  land 
until  the  expiration  of  the  time  therefor. 


Specified  kind  of  money.  Ante,  §  682,  subd.  4, 
§  692. 

Certificate,  recording.    Pol.  Codo,  §  4i:!r>. 

Sheriff's  deed,  and  what  passes  by  it.  Post, 
§  7o:i. 

Injunction  to  restrain  person  in  possession 
from  waste.     Pest,  §  7  1'). 

Recovery    of   damages   for   waste.     Post,  §  746. 

Writ  of  assistance.    I'ost,  §  1210. 

Legislation  §  700.  1.  Enacted  March  11,  1873; 
ba.sed  on  Practice  Act,  §  229,  as  amended  by 
Stats.  1863,  p.  689,  which  read:  "Upon  a  sale 
of  real  property,  the  purchaser  shall  be  sub- 
stituted to  and  acquire  all  the  right,  title,  in- 
terest, and  claim,  of  the  judgment  debtor  thereto; 
and  when  the  estate  is  less  than  a  leasehold  of 
two  years['|  unexpired  term,  the  sale  shall  be 
absolute.  In  all  other  cases,  the  property  shall 
be  subject  to  redemption,  aa  provided  in  this 
chapter.  The  officer  shall  give  to  the  purchaser 
a  certificate  of  sale  containing:  First.  A  par- 
ticular description  of  the  real  property  sold. 
Second.  The  price  bid  for  each  distinct  lot  or 
parcel.  Third.  Tlie  whole  price  paid.  Fourth. 
When  subject  to  redemption,  it  shall  be  so  stated. 
And  when  the  judgment,  under  which  the  sale  has 
been  made,  is  made  payable  in  a  specified  kind 
of  money  or  currency,  the  certificate  shall  also 
state  the  kind  of  money  or  currency  in  which 
such  redemption  may  be  made,  which  shall  be 
the  same  as  that  specified  in  the  judgment.  A 
duplicate  of  such  certificate  shall  be  filed  by  the 
officer  in  the  office  of  the  recorder  of  the  county." 
When  §  700  was  enacted  in  1872,  (1)  in  first 
line,  "shall  be"  was  changed  to  "io" ;  (2)  "ac- 
quire" was  changed  to  "acquires";  (3)  the  words 
"shall  be"  were  changed  to  "is"  before  "abso- 
lute" and  before  "subject";  (4)  in  the  rest  of 
the  section  "shall"  was  changed  to  "must,"  in 
all  instances:  (5)  a  new  paragraph  was  made, 
beginning  with  the  words  "And  when";  and  (6) 
in  the  new  paragraph  the  word  "state"  was 
changed  to  "show." 

2.  Amendment  by  Stats.  1901,  p.  156;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  684;  the  code 
commissioner  saying,  "The  present  §  700  of  the 
Code  of  Civil  Procedure  is  split  into  two  sections, 
§  700  and  §  700a.  All  of  §  700  after  the  word 
'thereto'  is  an  addition  thereto,  and  declares  the 
effect  of  a  sale  of  real  property  under  execution, 
and  that,  when  supported  by  a  judgment  lien 
or  the  levy  of  a  writ,  the  title  of  the  holder  re- 
lates back  to  the  date  of  such  lien  or  levy.  This 
simply  codifies  the  present  law  on  the  subject 
under  the  decision  of  the  supreme  court.  The 
part  of  the  section  omitted  is  made  a  new  section 
to   be   numbered    §    700a." 

Construction  of  section.  The  correspond- 
ing section  of  the  Practice  Act  was  held 
sufficiently  comprehensive  to  include  within 
its  design  sales  of  real  estate  under  de- 
crees of  foreclosure  of  mortgages.  Kent 
v.  Laffan,  2  Cal.  595.  This  section  was 
intended   to   state   the  effect  of   a   sale   of 


§700 


EXECUTION. 


832 


Eobinson  v.  Thornton,  102  Cal.  675;  34 
Pac.  120;  Dufif  v.  Eandall,  116  Cal.  226;  58 
Am.  St.  Eep.  158;  48  Pac.  66;  Pollard  v. 
Harlow,  138  Cal.  390;  71  Pac.  454. 

Kedemption.  The  right  to  redeem  exists 
onlv  by  virtue  of  the  statute.  Eldridge  v, 
Wright,  55  Cal.  531.  A  prior  redemptioner, 
who  has  effected  a  valid  redemption,  suc- 
ceeds to  the  rights  of  the  purchaser  at 
the  execution  sale,  as  the  owner  of  an 
equitable  estate  in  the  lands,  which,  though 
conditional,  may  become  absolute  by  mere 
lapse  of  time,  to  which  rights  are  added 
those  of  a  redemptioner;  and  he  has  such 
an  estate  in  the  land  as  entitles  him  to 
protection  against  an  assumed  junior  re- 
demption under  a  void  judgment.  Bennett 
V.  Wilson,  122  Cal.  509;  68  Am.  St.  Rep. 
61;  55  Pac.  390. 

Vacating  sale.  An  execution  sale  can- 
not be  set  aside  on  motion  made  fifteen 
months  after  the  sale,  and  after  the  mov- 
ing party  had  lost  his  right  of  redemption 
from  the  sale  under  a  lien  adjudged  to  be 
prior  to  his  own;  nor  can  a  motion  be 
entertained,  where  the  moving  party  has 
himself,  by  execution  sales,  satisfied  the 
judgments  under  which  he  claims  the  right 
to  make  the  motion.  Bonuev  v.  Tilley,  123 
Cal.  126;  55  Pac.  801. 

Evidence  in  ejectment.  In  an  action  of 
ejectment  to  recover  lands  purchased  at 
a  sale  under  an  execution  issued  upon  a 
judgment  against  the  defendant,  the  pro- 
duction of  the  judgment,  execution,  and 
sheriff's  deed  is,  as  against  the  judgment 
debtor,  prima  facie  evidence  of  the  plain- 
tiff's right  to  recover;  but  if  the  action 
is  against  a  stranger  to  the  judgment,  the 
plaintiff  must  also  show  that  the  judg- 
ment debtor  had  the  title  to  or  the  pos- 
session of  the  land  at  the  time  of  a 
judgment  or  attachment  lien  thereon,  or 
of  the  sale;  and  this  prior  possession  will 
then  be  prima  facie  evidence  of  a  right 
to  recover  in  ejectment,  as  against  the 
mere  possession  of  the  defendant,  which 
will  be  deemed  to  have  been  taken  sub- 
sequently to  the  sale.  Robinson  v.  Thorn- 
ton, 102  Cal.  675;  34  Pac.  120. 

Title  acquired  by  execution  purchaser. 
A  purchaser  of  real  property  at  an  execu- 
tion sale  acquires  the  legal  title  thereto, 
which  can  only  be  divested  by  a  valid  re- 
demption. Youd  V.  German  Sav.  &  L.  Soc, 
3  Cal.  App.  706;  86  Pac.  991.  The  lan- 
guage of  this  section,  that,  "Upon  a  sale 
of  real  property,  the  purchaser  is  substi- 
tuted to  and  acquires  all  the  right,  title, 
interest,  and  claim  of  the  judgment  debtor 
thereto,"  saying  unequivocally  that  he 
acquires  the  legal  as  well  as  the  equitable 
title,  was  subject,  as  the  section  read  prior 
to  its  amendment  in  1907,  to  only  three 
qualifications:  1.  That,  when  not  a  lease- 
hold of  less  than  two  years'  unexpired 
term,  the  property  should  be  subject  to 
redemption;  2.  That  a  deed  should  be  sub- 


sequently given  (post,  §  703);  and  3.  That, 
pending  the  time  for  redemption,  the  pos- 
session should  remain  with  the  defendant 
(post,  §706);  but  no  one  of  these  qualifi- 
cations is  inconsistent  with  vesting  title 
in  the  owner.  Pollard  v.  Harlow,  138  Cal. 
390;  71  Pac.  4.54;  and  see  Robinson  v. 
Thornton,  102  Cal.  680;  34  Pac.  120.  The 
purchaser  of  real  property  at  execution 
sale,  whether  his  title  is  legal  or  equitable, 
is  a  "successor  in  interest"  of  the  judg- 
ment debtor.  Pollard  v.  Harlow,  138  Cal. 
390;  71  Pac.  454.  The  sale  of  real  prop- 
erty upon  execution  is  conditional,  and 
may  be  defeated  by  the  payment  of  a  cer- 
tain sum  by  certain  designated  parties 
within  a  certain  limited  time;  and  if  not 
paid  within  the  time,  the  right  to  a  con- 
veyance becomes  absolute,  without  any 
further  sale,  or  other  act  to  be  performed 
by  anybody.  Page  v.  Rogers,  31  Cal.  293; 
Robinson  v.  Thornton,  102  Cal.  675;  34 
Pac.  120;  Duff  v.  Randall,  116  Cal.  226; 
58  Am.  St.  Rep.  158;  48  Pac.  66;  Breedlove 
V.  Norwich  etc.  Fire  Ins.  Co.,  124  Cal.  164; 
56  Pac.  770;  Reynolds  v.  London  etc.  Fire 
Ins.  Co.,  128  Cal.  16;  79  Am.  St.  Rep.  17; 
60  Pac.  467.  The  purchaser  at  a  sale 
under  the  judgment  rendered  in  the  fore- 
closure suit  acquires  the  same  interest  in 
the  property  sold  as  does  the  purchaser 
of  property  sold  under  an  ordinary  money 
judgment;  and  only  the  right  to  redeem 
from  this  sale  is  left  in  the  mortgagor. 
Duff  V.  Randall,  116  Cal.  226;  58  Am.  St. 
Rep.  158;  48  Pac.  66;  and  see  Reynolds 
\.  London  etc.  Fire  Ins.  Co.,  128  Cal.  16; 
79  Am.  St.  Rep.  17;  60  Pac.  467;  Robin- 
son V.  Thornton,  102  Cal.  675;  34  Pac. 
120;  Breedlove  v.  Norwich  etc.  Fire  Ins. 
Co.,  124  Cal.  164;  56  Pac.  770;  Pollard  v. 
Harlow,  138  Cal.  390;  71  Pac.  454.  The 
interest  of  the  purchaser  at  an  execution 
sale  may  be  seized  and  sold  before  the 
expiration  of  the  time  for  redemption;  he 
has  the  same  quality  of  estate  before  the 
time  for  redemption  expires  as  he  has 
afterwards;  only,  in  the  former  case,  the 
title  has  not  become  consummate,  and  is 
subject  to  be  defeated  by  a  redemption; 
he  has  an  equitable  estate  in  the  land  in 
both  cases,  and  not  merely  a  lien  before 
the  period  for  redemption  expires.  Page 
V.  Rogers,  31  Cal.  293.  The  title  acquired 
by  a  plaintiff  at  a  sale  upon  his  own  judg- 
ment is  affected  by  any  defect  in  the  pro- 
ceedings by  virtue  of  which  the  judgment 
is  reversed.  Purser  v.  Cady,  120  Cal.  214; 
52  Pac.  489.  The  purchase  of  mortgaged 
premises  by  a  mortgagee,  under  foreclosure 
proceedings,  for  the  full  amount  of  the 
judgment,  extinguishes  the  debt,  and  he 
is  no  longer  a  creditor  or  mortgagee; 
hence,  he  has  no  further  interest  in  an 
insurance  policy  taken  by  the  mortgagor, 
in  which  his  interest  was  only  as  security 
for  his  debt;  and  an  insurance  company 
paying    the    insurance    loss    to    the    mort- 


833 


SALE  ABSOLUTE  WHEN — CONTENTS  OF  CERTIFICATE. 


§700a 


gagor,  during  the  perioil  of  re(lomi>tion, 
is  not  liable  to  the  mortgagee.  IJeynolds 
V.  Loudon  etc.  Fire  Ins.  Co.,  12S  Cal.  16; 
70  Am.  St.  Hep.  17;  liO  Pac-.  4(57. 

Effect  of  order  of  sale.  The  function  of 
the  order  of  sale  to  enforce  a  judgment 
is  equally  efficacious  to  accomplish  that 
object,  whether  the  judgment  gives  a 
vendor's  lien  or  a  general  lieu  prior  to 
another.  Tilley  v.  Bouney,  123  Cal.  118; 
55  Pac.  798. 

Statute  of  limitations.  The  rule  that 
the  statute  of  limitations  does  not  begin 
to  run  against  the  judgment  debtor,  or  one 
claiming  under  him,  until  the  executiou  of 
the  sheriff's  deed,  has  no  aj)plication  to  a 
stranger  to  the  jutlgment,  or  to  any  title 
which  is  not  received  from  the  judgment 
debtor.  Kobinson  v.  Thornton,  102  Cal. 
675;  34  Pac.  120. 

When  rule  of  caveat  emptor  applicable  to  exe- 
cution sales.    Si'e  iiott-   14  Am.  Dt-c.   i;31. 

When  execution  sale  passes  interest  of  plaintiff 
as  well  as  of  defendant.  See  note  89  Am.  Dec. 
370. 

Title  acquired  by  creditor  purchasing  at  sale. 
See  note  79  Am.  St.  Kep.  947. 

Nature  of  the  title  or  estate  of  t>ie  holder  of 
a  sheriff's  certificate  before  obtaining  a  deed. 
See  note  15  L.  K.  A.  68. 

Title  acquired  by  purchaser.  See  note  21 
L.  K.  A.  45. 

Whether  crops  pass  by  execution  sale  of  land. 
See  note  19  Am.  Dec.  752. 

Rule  of  caveat  emptor  as  precluding  defenses 
by  bidder  at  sheriff's  sale.  See  note  18  Ann.  Gas. 
501. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. The  decisions  as  to  the  estate  of  the  judg- 
ment debtor  after  sale  become  authorities  for 
determining  the  estate  of  the  mortgagor  after 
sale  under  the  decree;  and  from  them  it  will  be 
found  that  the  estate  must  remain  in  the  mort- 
gagor until  a  consummation  of  the  sale  by  con- 
veyance, as  it  does  in  the  judgment  debtor;  and 
that  the  conveyance,  when  executed,  will  take 
effect,  in  the  one  case,  from  the  date  of  the  mort- 
gage, as  it  does  in  the  other  from  the  time  the 
lien  of  the  judgment  attached.  McMillan  v.  Rich- 
ards, 9  Cal.  365;  70  Am.  Dec.  655.  This  section 
comprehends  sales  of  real  estate  under  decrees 
of  foreclosure  of  mortgage.  A  subsequent  judg- 
ment creditor  having  lien  has  right  to  redeem 
real  estate  sold  by  foreclosure  of  previous  mort- 
gage. Kent  V.  Laffan,  2  Cal.  595.  See,  as  to 
other  general  matters,  People  v.  Hays,  4  Cal. 
127;   Duprey  v.  Moran,  4  Cal.   196. 

2.  Sheriff's  certificate  of  sale.  Purchaser  re- 
ceiving certificate  has  not  a  title  to  property,  but 
a  lien  on  the  same.  Assignment  of  certificate  as 
security.  See  Baber  v.  McLellan,  30  Cal.  137; 
People  v.  Mayhew,  26  Cal.  655.  When  officer 
making  sale  dies,  who  makes  out  certificate,  etc. 
See  People  v.  Boring,  8  Cal.  406;  68  Am.  Dec. 
331. 


3.  Particular  description  of  real  property  sold. 
Description  of  city  lots  by  numbers,  referring  to 
oflicial  city  map,  held  suflicient.  Welch  v.  Sul- 
livan, 8  Cul.   165. 

4.  What  property  may  be  redeemed.  See.  for 
general  mntters,  Seale  v.  Mitchell,  5  Cal.  401  ; 
McMillan  v.  Kichards.  9  Cal.  365;  70  Am.  Dec. 
655;  Montgomery  v.  Tutt,  11  Cal.  307;  Tuolumne 
Ked.mption  Co.  v.  Sedgwick.  15  Cal.  515;  Whit- 
ney V.  Hi;:gin8,  10  Cal.  554;  70  Am.  Dec.  74 H; 
McDermott  v.  Hurke,  16  Cal.  580;  Frink  v.  Mur- 
phy, 21  Cal.  1U8;  81  Am.  Dec.  149;  Dutlon  v. 
Warschuuer,  21  Cal.  609;  82  Am.  Dec.  765;  Stout 
V.  Macy,  22  Cal.  649;  Grattan  v.  Wiggins,  23 
Cal.  16;  Moore  v.  Martin,  38  Cal.  428;  Car- 
pentier  v.  Brenham,  40  Cal.  221.  See  note  to 
next  section. 

5.  What   title    acquired    at    sheriff's    sale.     An 

assi^nei'  of  n  sherilT  s  certilic-ate  of  siile.  a■^  secu- 
rity against  his  liability  for  debts  of  the  judgment 
debtor,  with  an  agreement  that  he  will  cancel  the 
same  when  the  debts  are  paid  and  his  liability  ia 
discharged,  ceases  to  have  any  interest  in  the 
certificate  when  the  debts  are  paid,  and  if  he 
afterwards  obtains  a  sheriff's  deed,  he  does  not 
acquire  any  title  to  the  land.  Baber  v.  McLellan, 
.'!0  Cul.  135.  Where  a  duplicate  of  a  sheriff '.s 
certificate  of  sale  has  been  deposited  by  the  sheriff 
with  the  recorder  of  the  proper  county,  indorsed 
"Filed"  by  the  latter  officer,  recorded  as  a  deed 
in  a  book  of  records  of  deeds,  and  regularly  in- 
dexed as  a  deed,  and  afterwards  placed  in  a  file 
of  recorded  deeds,  but  not  with  a  file  of  certifi- 
cates of  sales,  where  it  remained  in  said  record- 
er's office  till  the  time  of  the  trial  of  the  case, 
some  ten  years  afterwards,  it  imparted  notice  to 
subsequent  purchasers  by  the  instrument  thus  de- 
posited and  preserved.  Pase  v.  Rogers,  31  Cal. 
293.  During  the  period  which  elapses  between 
the  sale  of  land  on  execution  and  the  expiration 
of  the  time  for  redemption,  the  statute  regards 
the  purchaser  as  the  equitable  owner  of  the  land, 
subject  only  to  the  right  of  redemption,  and  gives 
him  the  rents,  profits,  etc.,  in  short,  the  entire 
beneficial  interest  in  the  property,  e.xcept  the 
a<:tual  possession.  Page  v.  Rogers,  31  Cal.  293. 
If  a  plaintiff,  in  an  action  for  foreclosure,  pur- 
cliases  the  propf-rty  at  sheriff's  sale,  he  is  deemed 
to  buy  with  full  knowledge  of  all  defects  in  the 
proceedings  relating  to  service  of  the  summons. 
Steinbach  v.  Leese,  27  Cal.  297.  Until  the  sheriff 
has  given  a  deed  of  real  property  sold  upon  exe- 
cution, the  estate  remains  in  the  judgment  debtor. 
Until  then,  the  purchaser  possesses  only  a  right 
to  an  estate  which  may  afterwards  be  perfected 
b.v  conveyance.  Cummings  v.  Coe,  10  Cal.  529. 
The  title  of  a  purchaser  of  real  estate  at  sheriff's 
sale  is  not  affected  bv  the  return  of  the  officer. 
Cloud  V.  El  Dorado  Countv,  12  Cal.  128:  73  Am. 
Dec.  526;  Clark  v.  Lockwood,  21  Cal.  220;  Moore 
V.  Martin,  38  Cal.  438;  Blood  v.  Light,  38  Cal. 
654;  99  Am.  Dec.  441.  Purchaser's  title  to 
property  bought  at  sheriff's  sale,  discussed  in 
Blood  V.  Light,  38  Cal.  649,  99  Am.  Dec.  -441, 
and  cases  there  cited:  see  also  Kenyon  v.  Quinn, 
41  Cal.  325.  Tenant  liable  to  purchaser  for  rent 
during  period  of  redemption.  Webster  v.  Cook, 
33  Cal.  423:  Harris  v.  Reynolds.  13  Cal.  516:  73 
Am.  Dec.  600;  Henry  v.  Everts.  30  Cal.  425; 
Page  V.  Rogers,  31  Cai.  294.  See  also,  further,  as 
to  what  title  is  acquired  at  sheriff's  sale,  note  to 
§  701,  post. 


§  700a.  When  sales  are  absolute.  What  certificate  must  show.  Sales 
of  personal  property,  and  of  real  property,  when  the  estate  therein  is  less 
than  a  leasehold  of  two  years'  unexpired  term,  are  absolute.  In  all  other 
cases  the  property  is  subject  to  redemption,  as  provided  in  this  chapter. 
The  officer  must  give  to  the  purchaser  a  certificate  of  sale,  and  file  a  dupli- 
cate thereof  for  record  in  the  office  of  the  county  recorder  of  the  county, 
which  certificate  must  state  the  date  of  the  judgment  under  which  the  sale 
was  made  and  the  names  of  the  parties  thereto,  and  contain: 

1.  A  particular  description  of  the  real  property  sold; 

1  Fair.— 53 


§701 


EXECUTION. 


834 


2.  The  price  bid  for  each  distinct  lot  or  parcel ; 

3.  The  Avhole  price  paid; 

4.  If  the  property  is  subject  to  redemption,  the  certificate  must  so  de- 
clare, and  if  the  redemption  can  be  effected  only  in  a  particular  kind  of 
money  or  currency,  that  fact  must  be  stated. 

Legislation  §  700a.    1.  Addition  by  Stats.  1901,       subject   to   be    defeated   by   a   redemption; 
p.  156  :  unconstitutional.     .See  note  ante,  §  5. 

2.  Re-enactment  of  code  commissioners'  un- 
constitutional addition,  by  Stats.  1907,  p.  684; 
the  code  commissioner  saying,  "The  only  thing  m 
this  section  is  the  requirement  that  the  certificate 
of  search  shall  include  a  statement  of  the  date 
of  the  judgment  and  of  the  names  of  the  parties 
thereto;  the  remainder  of  the  change  simply  con- 
sists in  recasting  into  more  concise  form  what  is 
clumsily  expressed  in  the  original  section";  q.v., 
ante,  Legislation  §  700. 

This  section  is  an  amendment  of  part  of 
§  700,  ante,  as  that  section  read  prior  to 
its  amendment  in  1907.  See  Legislation 
§  700,  and  note  to  that  section;  see  also 
supra.  Legislation  §  700a. 

Leasehold  estates.  The  effect  of  the 
clause  concerning  leasehold  interests,  with 
respect  to  its  bearing  on  the  meaning  of 
the  words  "real  property,"  was  merely  to 
show,  for  the  purposes  of  the  section,  that 
those  words  were  used  in  a  sense  broader 
than  their  common-law  meaning,  and  in- 
cluded chattels  real  as  well  as  freehold 
estates;  without  that  clause,  the  section 
could  apply  only  to  estates  of  inheritance 
and  estates  for  life,  or,  by  the  common- 
law  classification,  freehold  estates.  Sum- 
merville  v.  Stockton  Milling  Co.,  142  Cal. 
529;  76  Pac.  243. 

Certificate  of  sale.  The  certificate  of 
sale,  signed  by  the  sheriff,  is  evidence  of 
the  sale,  whereby  the  entire  equitable  title 
is   conditionally   vested   in   the   purchaser, 

§701.  Real  property  so  sold,  by  whom  it  may  be  redeemed.  Property 
sold  subject  to  redemption,  as  provided  in  the  last  section,  or  any  part  sold 
separately,  may  be  redeemed  in  the  manner  hereinafter  provided,  by  the 
following  persons,  or  their  successors  in  interest : 

1.  The  judgment  debtor,  or  his  successor  in  interest,  in  the  whole  or  any 
part  of  the  property; 

2.  A  creditor  having  a  lien  by  judgment  or  mortgage  on  the  property 
sold,  or  on  some  share  or  part  thereof,  subsequent  to  that  on  which  the 
property  was  sold.  The  persons  mentioned  in  the  second  subdivision  of 
this  section  are,  in  this  chapter,  termed  redemptioners. 

who  has   a  judgment  which  was  rendered 
against  the  testator  or  intestate  in  his  life- 


but  if  not  so  redeemed,  the  certificate  is 
evidence  of  the  purchaser's  right  to  a  deed 
which  shall  vest  in  him  the  dry  legal  title 
which  remained  in  the  judgment  debtor. 
Foorman  v.  Wallace,  75  Cal.  552;  17  Pac. 
680.  The  sheriff's  certificate  to  the  pur- 
chaser is  the  evidence  of  the  equitable 
interest  which  the  purchaser  has  in  the 
land,  and  is  an  instrtiment  whereby  an 
interest  or  title  is  created,  within  the 
meaning  of  §  1107  of  the  Civil  Code.  Foor- 
man v.  Wallace,  75  Cal.  552;  17  Pac.  680. 
The  filing  of  a  duplicate  certificate  of  sale, 
in  the  mode  prescribed  by  the  statute, 
imparts  constructive  notice  of  the  estate 
acquired  under  it,  to  subsequent  pur- 
chasers. Page  V.  Eogers,  31  Cal.  293. 
This  section  does  not  require  that  the  cer- 
tificate issued  by  the  sheriff  shall  be  re- 
corded, but  simply  that  it  be  filed.  Bristol 
V.  Hershey,  7  Cal.  App.  738;  95  Pac.  1040. 
The  assignee  of  a  certificate  of  sale,  made 
under  execution,  may  redeem  from  a  sale 
made  under  the  foreclosure  of  a  prior  mort- 
gage executed  by  the  judgment  debtor. 
Pollard  V.  Harlow,  138  Cal.  390;  71  Pac. 
454.  The  certificate  of  redemption  need 
not  state  the  capacity  in  which  the  re- 
demption was  made.  Pollard  v.  Harlow, 
138  Cal.  390;  71  Pac.  454. 


Post,  §§  702  et  seq. 
redemption     by.       Post, 


Bedemption,  mode  of, 

Judgment      creditor, 
§  1505. 

Parties  entitled  to  redeem.    Ante,  §§  346,  347. 

LeglBlation  8  701.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,  §  230. 

Construction  of  section.  The  inference, 
when  redemption  is  effected  under  the  pro- 
visions of  this  section  and  §  700,  ante,  is, 
that  it  is  made  of  the  whole  property  sold, 
and  this  inference  is  sustained  by  the  pro- 
visions of  §§  702,  703,  post.  Eldridge  v. 
Wright,  55  Cal.  531.  The  provision  in 
§   1505,    post,    that    a    judgment    creditor, 


time,  may  redeem  any  real  estate  of  the 
decedent  from  any  sale  under  foreclosure 
or  execution  in  like  manner  and  with  like 
effect  as  if  the  judgment  debtor  were  still 
living,  when  read  in  connection  with  the 
definition  of  a  redemptioner  in  the  second 
subdivision  of  this  section,  is  a  recognition 
of  the  existence  of  the  posthumous  judg- 
ment lien;  and  the  concurrent  provisions 
of  the  general  practice  of  the  probate  pro- 
cedure leave  no  doubt  of  the  intention  of 


835 


JUDGMENT    DEBTOR    MAY    REDEEM. 


§701 


the  code  not  to  cxtinfiuiph  the  lien  upon 
the  death  of  the  debtor.  Morton  v.  Adams, 
124  Cal.  229;  71  Am.  St.  PJep.  .'53;  56  Pac. 
1038.  Tlie  statutory  right  of  redemiition 
is  equally  applicable  to  sales  under  decrees 
in  mortfjage  cases  as  to  sales  under  or- 
dinary judgments  at  law.  McMillan  v. 
Richards,  9  Cal.  3i;.1;  70  Am.  Dec.  (;.5."). 

When  judgment  debtor  may  redeem.  A 
dcl'oudaiit  in  execution  can  redeem  from 
an  execution  sale,  notwithstanding  he  has 
conveyed  to  another  the  jiroperty  sold 
under  the  execution.  Yoakum  v.  Bower, 
51  Cal.  539.  Where  the  plaintiff  obtained 
a  decree  foreclosing  a  lien  upon  a  block 
of  land,  ordering  the  whole  block  to  be 
sold  by  the  sheriff,  and  purchased  the 
whole  block  at  the  sheriff's  sale  as  the 
property  of  the  defendant  in  the  fore- 
closure suit,  in  satisfaction  of  his  lien, 
and,  after  redemption  attempted  by  a  suc- 
cessor of  the  judgment  debtor,  seeks  from 
the  sheriff  a  deed  of  the  whole  block,  by 
writ  of  mandate,  he  will  not  be  heard  to 
object  to  the  redemption  of  the  land  on 
the  ground  that  the  defendant  in  the  fore- 
closure suit  never  owned  the  whole  block. 
Southern  California  Lumber  Co.  v.  Mc- 
Dowell, 105  Cal.  99;  38  Pac.  627;  and  see 
Lorenzana  v.  Camarillo,  45  Cal.  125; 
Yoakum  v.  Bower,  51  Cal.  539;  Eldridge 
V.  Wright,  55  Cal.  531. 

Successors  in  interest  of  the  judgment 
debtor.  Successors  in  interest  stand  in 
the  place  of  judgment  debtors;  and  when 
the  statute  uses  the  term  "judgment 
debtors,"  as  contradistinguished  from 
"redemptioners,"  the  words  should  be 
construed  as  broad  enough  to  include  suc- 
cessors in  interest  of  judgment  debtors. 
Phillips  V.  Hagart,  113  Cal.  552;  54 
Am.  St.  Rep.  369;  45  Pac.  843.  What- 
ever the  nature  of  the  purchaser's  title 
at  execution  sale  is,  whether  legal  or 
equitable,  he  is  a  "successor  in  interest" 
of  the  judgment  debtor,  within  the  mean- 
ing of  that  term  as  used  in  this  section. 
Pollard  V.  Harlow,  138  Cal.  390;  71  Pac. 
454.  The  title  of  a  plaintiff,  wljich  origi- 
nated in  the  levy  of  a  writ  of  attach- 
ment older  than  that  claimed  by  the  de- 
fendant, must  prevail  against  a  junior 
lien  claimed  by  the  defendant;  and,  as 
the  successor  in  interest  of  the  judgment 
debtor,  the  plaintiff  is  entitled  to  redeem 
the  land  conveyed  to  him  upon  execution 
sale,  and  the  defendant,  as  a  judgment 
creditor,  has  also  the  same  right.  Porter 
v.  Pico,  55  Cal.  165.  The  filing,  by  a  hus- 
band, of  a  declaration  of  homestead  upon 
his  separate  projierty,  vests  the  wife  with 
an  interest  in  the  premises,  of  which  she 
cannot  be  divested  by  any  act  of  the  hus- 
band alone,  or  by  any  action  taken  against 
him  alone;  and  she  has  a  right  of  redemp- 
tion as  his  successor  in  interest.  Watts  v. 
Gallagher,  97  Cal.  47;  31  Pac.  626;  and 
see  Hefner  v.  Urton,  71  Cal.  479;   12  Pac. 


486.  The  successors  in  interest  of  one  or 
more  of  the  judgment  debtors,  in  some 
part  of  the  proiicrty,  may  redeem  the 
whole  of  the  property  from  a  foreclosure 
sale.  Emerson  v.  Yosemite  Gold  Mining 
etc.  Co.,  149  Cal.  50;  85  Pac.  122.  Suc- 
cessors in  part  can  redeem,  only  by  re- 
deeming the  whole.  Eldridge  v.  Wright, 
55  Cal.  5.'51.  During  the  time  for  re<ienip- 
tion,  the  legal  title  is  in  the  mortgagor, 
and  the  property  may  be  conveyed  by  him, 
and  the  grantee  becomes  entitled  to  re- 
deem, without  paying  to  the  mortgagee 
the  unsatisfied  portion  of  the  judgment 
under  which  the  property  was  sold  to  him, 
and  the  judgment  for  the  deficiency  is 
not  a  lien  on  the  land.  Simpson  v.  Castle, 
52  Cal.  644.  A  successor  in  interest  re- 
deems in  that  caf)acity,  where  he  presents 
his  evidence  of  title  to  the  commissioner, 
pays  the  money  required,  and  receives  the 
certificate  of  redemption.  Pollard  v.  Har- 
low, 138  Cal.  390;  71  Pac.  454. 

Redemption  not  fraudulent  as  to  credi- 
tors of  judgment  debtor.  The  purchase, 
by  an  attorney,  with  his  client's  consent, 
of  the  client's  property,  sold  under  various 
executions,  by  procuring  assignments  to 
himself  of  the  certificates  of  sale  and 
deeds  thereunder,  in  the  absence  of  any 
showing  that  it  was  made  for  the  benefit 
of  the  client,  or  was  in  fraud  of  his  other 
creditors,  must  be  presumed  to  have  been 
fair  and  regular  as  between  the  attorney 
and  the  client,  and  not  to  have  been,  in 
effect,  a  redemption  by  the  client,  nor  a 
fraud  upon  his  creditors.  Fisher  v.  Mcln- 
erney,  137  Cal.  28;  92  Am.  St.  Rep.  68;  69 
Pac.  622;  and  see  dissenting  opinion  of 
Beatty,  C.  J. 

Redemptioner,  who  is.  The  second  sub- 
division of  this  section  defines  the  class 
of  persons  who  have  a  right  to  exercise 
the  privilege  of  redemption;  but  it  neither 
limits  nor  defines  the  extent  of  the  right: 
the  limitation  of  such  extent  is  provided 
for  elsewhere  in  the  statute.  Eldridge 
V.  Wright,  55  Cal.  531.  An  action  for 
slander  of  title  is  maintainable  only  by 
one  who  possesses  an  estate  or  interest  in 
real  or  personal  property;  and  to  entitle 
the  plaintiff  to  the  status  of  a  redemp- 
tioner in  such  action,  it  should  be  alleged 
in  the  complaint  that  he  is  a  mortgagor, 
or  judgment  debtor,  or  the  successor  in 
interest  of  a  judgment  debtor,  or  a  credi- 
tor having  a  lieu  by  judgment  or  mort- 
gage on  the  property  sold.  Edwards  v. 
Burriss,  60  Cal.  157.  A  judgment  creditor 
is  not  a  redemptioner,  where  the  judgment 
is  not  a  lien  on  the  land.  Perkins  v. 
Center,  35  Cal.  713;  Bagley  v.  Ward,  27 
Cal.  370.  A  deficiency  judgment,  which  is 
not  a  lien  upon  the  land,  does  not  entitle 
the  holder  thereof  to  redeem.  White  v. 
Costigan,  6  Cal.  Unrep.  641;  63  Pac.  1075. 
A  judgment  debtor  is  not  a  redemptioner, 
within   the   meaning  of  the   second   subdi- 


§701 


EXECUTION. 


836 


vision  of  this  section  (Yoakum  v.  Bower, 
51  Cal.  539);  nor  is  his  successor  in  in- 
terest. Phillips  V.  Hagart,  113  Cal.  552; 
54  Am.  St.  Rep.  369;  45  Pac.  843. 

Lien  prior  to  that  of  redemptioner.  A 
purchaser  who,  as  member  of  a  partner- 
ship, holds  a  prior  lien  on  lauds  purchased 
at  execution  sale,  is  not  a  creditor  having 
a  lien  prior  to  that  of  the  redemptioner, 
within  the  meaning  of  the  second  subdi- 
vision of  this  section.  Campbell  v.  Oaks, 
68  Cal.  222;  9  Pac.  77.  The  interest  or 
estate  vested  in  a  purchaser  or  redemp- 
tioner cannot  be  superseded  by  the  lien 
of  a  void  judgment,  which  would  prejudice 
his  pre-existing  right.  Bennett  v.  Wilson, 
122  Cal.  509;  68  Am.  St.  Eep.  61;  55  Pac. 
390. 

Effect  of  redemption.  The  effect  of  a 
redemption  of  property  sold  subject  to 
redemption  depends  upon  the  character 
of  the  person  making  the  redemption:  if 
made  by  a  "redemptioner"  as  defined  in 
the  second  subdivision  of  this  section,  and 
there  is  no  further  redemption  within  the 
statutory  period,  the  redemptioner  is  en- 
titled to  a  deed  from  the  sheriff,  convey- 
ing to  him  the  interest  of  the  judgment 
debtor  therein;  but  if  made  by  the  judg- 
ment debtor,  or  his  successor  in  interest, 
the  effect  of  the  sale  is  terminated,  which 
fact  is  made  to  appear  of  record  by  a 
certificate  of  redemption,  and  a  note 
thereof  on  the  margin  of  the  certificate 
of  sale.  Calkins  v.  Steinbach,  66  Cal.  117; 
4  Pac.  1103.  The  reason  for  the  distinc- 
tion made  between  the  judgment  debtor 
and  a  redemptioner  is,  that,  if  the  latter 
were  permitted  to  redeem  without  paying 
the  prior  lien  held  by  the  purchaser,  the 
title  would  pass  to  the  redemptioner,  and 
the  lien  of  the  purchaser  would  be  de- 
feated; but  if  the  judgment  debtor  redeem, 
he  is  restored  to  his  estate,  and  the  lien 
held  by  the  purchaser  will  be  available. 
Sharp  V.  Miller,  47  Cal.  82.  A  redemp- 
tion of  land  by  a  tenant  in  common,  after 
a  sale  under  a  foreclosure  of  a  mortgage 
executed  by  all  the  co-tenants,  puts  an 
end  to  the  sale,  and  restores  the  parties 
to  their  original  title;  and  the  tenant  in 
common  making  such  redemption  acquires 
thereby  an  equitable  lien  upon  the  inter- 
ests of  his  co-tenants  in  the  land,  for  their 
just  proportion  of  the  money  paid  by  him 
in  effecting  the  redemption;  and  a  court 
of  equity  will  enforce  such  lien,  by  de- 
creeing that  in  default  of  payment  the 
interests  of  the  co-tenants  be  foreclosed. 
Calkins  v.  Steinbach,  66  Cal.  117;  4  Pac. 
1103. 

Who  may  redeem.  See  note  21  Am.  St.  Rep. 
243. 

Bedemption  from  execution  by  one  co-tenant. 
See  note  95  .Am.  Dec.  766. 

Eight  of  tenant  for  years  to  redeem  premises 
from  mortgage.    See  note  4  Ann.  Cas.  8U7. 

Eight  of  married  woman  to  redeem  mortgaged 
premises  during  life  of  husband.  See  notes  6 
Ann.  Cas.  475;    15  Ann.  Cas.  315. 


Eight  to  redeem  as  incident  of  mortgage.  See 
note-Ann.   Cas.    1912D,  959. 

Whether  a  purchaser  or  mortgagee  from  the 
original  owner  after  a  sale  under  a  prior  mort- 
gage and  during  the  redemotion  period  be  a  re- 
demption.    See  note  29  L.  R.  A.  (N.  S.)  508. 

Eight  of  mortgagee  who  secures  a  deficiency 
decree  to  redeem  from  the  sale.  See  note  35 
L.  R.  A.  (N.  S.)  413. 

CODE  COMMISSIONEES'  NOTE.  A  sale  with- 
out an.v  light  of  redemption  is  a  valid  and  suffi- 
cient remedy  for  the  enforcement  of  the  contract, 
and  an  act  denying  a  right  of  sale  would  proba- 
bly be  such  a  vital  assault  upon  the  obligation 
as  practically  to  destroy  it,  and  therefore  be  un- 
constitutional. But  a  repeal  of  a  right  of  re- 
demption— in  other  words,  an  act  making  a  said 
absolute  instead  of  conditional — would  not  im- 
pair the  contract.  These  regulations  were  mere 
provisions  of  sale,  governing  the  course  of  the 
process  and  its  effects.  The  contract  of  in- 
debtedness is  not  touched  by  these  provisions;  it 
stands  as  it  stood  before,  a  valid  obligation  to 
pay  money,  with  the  sanctions  furnished  by  law 
for  its  enforcement.  The  mere  fact  that  the 
judgments  of  the  plaintiff  were  recovered  before 
the  passage  of  the  act  of  1859,  did  not  vest  in 
the  holders  of  them  the  right  to  redeem  from  a 
Bale  made  after  the  passage  of  the  act  of  1859, 
upon  any  terms  different  from  those  prescribed 
by  that  act.  If  this  right  to  redeem  was  an 
incident  to  the  Judgment,  under  the  act  of  1851, 
it  was  a  portion  of  the  remedy  which  might  be 
taken  away  by  the  legislature  at  any  time  before 
the  right  had  become  vested  by  the  party  avail- 
ing himself  of  it.  Commenting  on  Whitney  v. 
Higgins,  10  Cal.  554,  70  Am.  Dec.  748,  as  to 
equitable  right  of  redemption  in  favor  of  certain 
persons  not  made  parties  to  a  mortgage  fore- 
closure. Tuolumne  Redemption  Co.  v.  Sedgwick, 
15  Cal.  515.  See  also  case  of  Moore  v.  Martin, 
3  8  Cal.  439,  sustaining  the  last-named  case,  and 
holding  People  v.  Hays,  4  Cal.  127,  to  be  over- 
ruled by  Tuolumne  Redemption  Co.  v.  Sedgwick, 
15  Cal.  515.  Possession  should  not  change  to 
the  purchaser  until  the  expiration  of  the  time 
limited  for  redemption.  Guy  v.  Middleton,  5  Cal. 
392;  Stout  v.  Macy,  22  Cal.  647.  The  equitable 
right  to  redeem  property  sold  under  a  decree  of 
foreclosure  held  by  subsequent  encumbrancers  is 
merged  into  a  statutory  right,  not  by  any  force 
given  to  the  language  of  the  decree,  but  by  the 
fact  that  they  have  had  their  day  in  court,  and 
an  opportunity  of  setting  up  any  equities  they 
possessed.  After  the  decree,  they  stand,  as  to 
their  right  of  redemption,  in  the  same  position  as 
ordinary  judgment  debtors.  Montgomery  v.  Tutt, 
11  Cal.  317.  As  to  the  right  to  redeem  property 
sold  on  execution,  the  court  say:  "Tlie  statu- 
tory right,  in  some  instances,  exists  where  there 
is  no  equity,  and  in  other  instances,  in  connec- 
tion with  the  equitable  right.  Parties  to  the  suit 
in  which  the  judgment  is  rendered,  under  which 
the  sale  is  made,  are  restricted  to  the  six  months 
given  by  statute,  for  they  have  had  their  day  in 
court,  and  their  rights  after  decree  depend  en- 
tirely upon  the  statute.  Parties  acquiring  inter- 
ests pending  suits  to  enforce  previously  existing' 
liens,  taking  their  interests  in  subordination  to 
any  decree  which  may  be  rendered,  have  no 
equity,  and  are  confined  to  the  rights  given  by 
the  statute,  and  so,  as  a  consequence,  are  those 
whose  interests  are  acquired  after  judgment 
docketed  or  sale  made;  but  parties  obtaining  in- 
terests subsequently  to  the  plaintiff,  and  before 
suit  brought,  who  are  not  made  parties  to  such 
suit,  possess  both  the  equitable  and  the  statutory 
right.  They  may  redeem,  under  the  statute,  or 
thev  may  file  their  bill  in  equity."  Whitney  v. 
Hig"gins,  10  Cal.  547;  70  Am.  Dec.  748;  see  also 
Montgomery  v.  Tutt,  11  Cal.  317.  The  redemp- 
tion should  be  beneficially  construed.  A  subse- 
quent judgment  creditor,  having  a  lien,  may 
redeem  real  estate  sold  by  foreclosure  of  a  previ- 
ous mortgage  in  the  hands  of  the  purchaser. 
Kent  V.  Laffan,  2  Cal.  595.  On  an  execution 
sale,  the  buyer,  before  conveyance  to  him,  has  a 
right  to  redeem  the  property  sold  on  the  enforce- 
ment of  a  prior  lien.  After  conveyance  to  him, 
he  has  the  same  rieht,  as  successor  in  interest  to 
the   debtor  or  mortgagor.     McMillan   v.   Richards, 


837 


REDEMPTION   OF  REAL  PROPERTY — LAW   GOVERNING. 


§702 


9  Cal.  305 ;  70  Am.  Prr.  555.  Courts  of  equity 
favor  the   right   of   redemption.     Ilickox   v.   Lowe, 

10  Cal.  207.  A  person  who  ha.s  a  ripht  of  re- 
demption may  have  the  priee  at  which  his  interest 
was  sold  ascertained,  in  order  that  he  may  re- 
deem. Kauii  V.  Reynolds,  11  Cal.  20.  A  mort- 
gafTor  may  maintain  an  action  to  redeem  the 
mortfraKe.  Dauhenspeck  v.  Plaff,  22  Cal.  330. 
Redemption  by  tenant  for  years.  See  McDermott 
V.  ]{urke,  1()  Cal.  .590.  Who  has  a  right  of  re- 
demption. See  Kirkham  v.  Dupont,  14  Cal.  .563. 
When  suhseiiuent  mortgagee  could  redeem  prem- 
ises from  a  sale  under  a  judgment  upon  mechan- 
ics' liens.  See  Gainlde  v.  Voll,  15  Cal.  510.  A 
party  who  has  no  interest  in  mortgaged  property 
when   the  action   for   foreclosure   of   tlie   same   was 


commenced,  who  buys  pendente  ITfe,  and  after 
notii'C  of  pendency  of  action  has  been  filed,  is 
not  a  necessary  party  to  a  foreclosure  suit.  See 
also,  for  other  matters,  Horn  v.  .lones,  23  i's.1. 
104;  see  Perkins  v.  Center,  35  Cal.  713.  The 
right  of  a  subsequent  mortgagee,  as  against  the 
purchaser  at  the  foreclosure  sale  under  the  first 
mortgage,  is  a  right  to  redeem.  A  suit  of  fore- 
closure, as  agair.st  a  youn^rer  niortgairee,  is  a  suit 
to  cut  off  the  right  of  redemption.  When,  there- 
fore, the  younger  mortgagee  is  not  made  a  party, 
his  right  to  redeem  is  unaffected  by  a  decree  of 
foreclosure  and  a  sale  under  it.  See,  as  to  re- 
demption generally,  Carpentier  v.  P.renhjim,  40 
Cal.  222;  see  also  Bagb-v  v.  Ward,  37  Cal.  121; 
99  Am.  Dec.  256;   see  also  §§  340,   347,  ante. 


§  702.  When  it  may  be  redeemed,  and  redemption-money.  The  .iikIg:- 
ment  debtor,  or  redemptioner,  may  redeem  the  property  from  the  purchaser 
any  time  within  twelve  months  after  the  sale  on  payinfij  the  purchaser  the 
amount  of  his  purchase,  with  one  per  cent  per  month  thereon  in  addition, 
up  to  the  time  of  redemption,  together  with  the  amount  of  any  assessment 
or  taxes  Avhich  the  purchaser  may  have  paid  thereon  after  purchase,  and 
interest  on  such  amount.  And  if  the  purchaser  be  also  a  creditor,  havinsj 
a  prior  lien  to  that  of  the  redemptioner,  other  than  the  judo^ment  under 
which  said  purchase  was  made,  the  amount  of  such  lien  with  interest. 

for  redemption  from  sales  under  execu- 
tion to  one  year,  has  no  application  to 
sales  under  the  foreclosure  of  a  mortgage 
executed  prior  to  the  enactment  of  such 
amendment.  Savings  Bank  v.  Barrett,  126 
Cal.  413;  58  Pao.  914.  The  judgment 
debtor's  right  to  redeem  is  governed  by 
the  law  in  effect  when  the  contract  was 
made  and  the  judgment  obtained,  and  not 
by  the  law  in  force  under  a  subsequent 
amendment  thereof.  Welsh  v.  Cross,  14G 
Cal.  621;  106  Am.  St.  Rep.  63;  2  Ann.  Cas. 
796;  81  Pac.  229.  The  sale  by  the  sheriff 
is  regarded  as  a  sale  by  the  judgment 
debtor;  and  the  purchaser  is  entitled  to 
rely  upon  the  statutory  provisions  for 
redemption  existing  at  the  time  of  the 
sale,  to  the  same  extent  and  in  the  same 
manner  as  if  they  were  incorporated  into 
a  contract  of  sale  executed  by  the  debtor. 
Thresher  v.  Atchison,  117  Cal.  73;  59  Am. 
St.  Eep.  159;  48  Pac.  1020;  and  see  Blood 
V.  Light,  38  Cal.  649;  99  Am.  Dec.  441. 
The  purchaser  at  a  public  sale,  though  pro- 
tected against  any  future  im])airment  of 
his  rights  by  subsequent  legislation,  is 
wholly  governed  by  the  laws  in  force  at 
the  time  of  the  sale,  including  the  law 
of  redemption  therefrom,  and  of  its  in- 
cidents and  rights  then  existing.  Lcet  v. 
Armbruster,  143  Cal.  663;  77  Pac.  653. 
The  amendment  of  this  section  in  1895, 
reducing  the  percentage  to  be  paid  upon 
a  redemption,  from  two  per  cent  to  one 
per  cent  a  month  on  the  amount  of  the 
purchase,  has  no  retrospective  operation 
upon  a  sale  made  prior  to  its  passage:  the 
legislature,  by  the  subsequent  amendment, 
was  powerless  to  diminish  the  amount 
which  the  purchaser  should  receive,  in 
order  to  effect  a  redemption  from  the 
execution  sale  (Thresher  v.  Atchison,  117 
Cal.    73;    59    Am.    St.    Rep.    159;    48    Pac. 


Legislation  g  702.  1.  Enacted  March  11,  1872; 
re-enactment  of  Practice  .A,ct,  §  231,  as  amended 
by  Stats.  1860,  p.  302.  which  read:  "The  judg 
ment  debtor  or  redemptioner,  may  redeem  the 
propert.v  from  the  purchaser  within  six  months 
after  the  sale,  on  paying  the  purchaser  the  amount 
of  his  purchase,  with  twelve  per  cent  thereon  in 
addition,  together  with  the  amount  of  any  assess- 
ment or  taxes  which  the  purchaser  may  have 
paid  thereon  after  the  purchase  and  interest  on 
such  amount ;  and  if  the  purchaser  be  also  a 
creditor  having  a  prior  lien  to  that  of  the  re- 
demptioner other  than  the  .judgment  under  which 
such  purchase  was  made,  the  amount  of  such  lien 
with  interest." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  96, 
(1)  adding  "any  time"  before  "within  six 
months";  (2)  changing  "twelve  per  cent"  to 
"two  per  cent  per  month";  (3)  adding  "up  to 
the  time  of  redemption"  after  "in  addition"  ;  and 
(4)  omitting  word  "the"  between  words  "after 
purchase." 

3.  Amended  by  Stats.  1895.  p.  225,  changing 
"two"   to   "one"   before   "per  cent." 

4.  Amended  by  Stats.  1897,  p.  41,  (1) 
changing  "six"  to  "twelve"  before  "months  after 
the  sale,"  and  (2)  changing  the  word  "suth"  to 
"said"  before  "purchase  was  made." 

Construction  of  section.  Prior  to  the 
amendment  of  1859,  where  real  estate  sub- 
ject to  a  judgment  lien  was  sold  under 
execution  on  the  judgment,  to  the  judg- 
ment creditor,  for  a  sum  less  than  the 
whole  amount  of  the  judgment,  he  still 
continued  to  be  a  creditor  having  a  lien 
for  the  unsatisfied  portion  of  the  judg- 
ment upon  the  property  sold  under  the 
execution,  and  neither  a  judgment  debtor, 
nor  a  redemptioner  with  a  subsequent  lien, 
could  redeem  without  paying  such  judg- 
ment; but,  by  the  amendment  of  1860,  the 
clause  excusing  the  payment  of  the  judg- 
ment for  the  deficiency,  on  redeeming,  is 
equivalent  to  an  explicit  declaration,  that, 
during  the  time  for  redemption,  the  un- 
satisfied portion  of  the  judgment  is  not  a 
lien  on  the  land  sold  under  the  judgment. 
Simpson  v.  Castle,  52  Cal.  644. 

What  law  governs.  The  amendment  of 
this   section    in    1897,   extending   the    time 


§702 


EXECUTION. 


838 


1020);  that  amenclment  applies  to  sales 
made  after  its  passage,  and  where  the 
purchase  at  a  foreclosure  sale  was  made 
subsequently  to  the  amendment,  the  fact 
that  the  mortgage  under  which  the  sale 
was  made  was  executed  prior  to  the 
amendment  is  immaterial;  the  rights  of 
the  mortgagor  and  the  mortgagee  are  not 
adversely  affected  by  the  amendment,  and 
it  does  not  impair  the  obligation  of  the 
contract.  Hooker  v.  Burr,  137  Cal.  603; 
99  Am.  St.  Eep.  17;  70  Pac.  77S. 

Offer  to  redeem.  An  offer  to  redeem, 
which  does  not  conform  to  the  statute,  is 
void.  Youd  V.  German  Sav.  &  L.  Soc,  3 
Cal.  App.  706;  86  Pac.  991. 

Time  for  redemption.  The  right  of  re- 
demption, as  to  time,  is  expressly  limited. 
Summers  v.  Hammell,  17  Cal.  App.  493; 
120  Pac.  63.  The  statutory  right  to  re- 
deem a  homestead  vests  in  the  adminis- 
trator or  the  surviving  wife,  or  in  both, 
upon  the  death  of  the  husband,  and  is 
restricted  to  the  time  provided  by  statute. 
Collins  V.  Scott,  100  Cal.  446;  34  Pac.  1085. 
Prior  to  the  amendment  of  this  section  in 
1897,  where  the  execution  sale  took  place 
October  5,  1874,  and  the  sheriff's  deed  was 
executed  on  April  5,  1875,  the  judgment 
debtor  had  the  whole  of  the  5th  of  April  in 
which  to  redeem,  and  a  sheriff's  deed  exe- 
cuted before  the  expiration  of  that  period 
was  void.  Perham  v.  Kuper,  61  Cal.  331; 
and  see  Gross  v.  Fowler,  21  Cal.  392;  Ber- 
nal  V.  Gleim,  33  Cal.  668;  Moore  v.  Martin, 
38  Cal.  428;  Hall  v.  Yoell,  45  Cal.  584.  A 
court  of  equity  may,  upon  a  proper  show- 
ing of  fraud,  mistake,  etc.,  relieve  a  judg- 
ment debtor,  whose  property  has  been  sold 
K>n  execution,  from  a  failure  to  redeem 
tvithin  the  statutory  period.  Bunting  v. 
Haskell,  152  Cal.  426,  93  Pac.  110.  Where 
the  purchaser  at  a  foreclosure  sale  employs 
the  mortgagor's  attorney  to  make  the  bid 
for  him,  and,  through  such  attorney,  mis- 
represents to  the  mortgagor  that  he  has 
one  year  in  which  to  redeem,  and  he,  rely- 
ing thereon,  neglects  to  redeem  within  the 
statutory  period,  but  tenders  full  redemp- 
tion within  one  year,  a  refusal  to  accept 
such  tender  operates  as  a  fraud  upon  him, 
and  entitles  him  to  equitable  relief, 
whether  or  not  such  misrepresentations 
were  fraudulently  or  honestly  made;  and 
the  purchaser  is  estopped  from  insisting 
upon  the  statutory  period  for  redemption, 
although  the  assurances  were  not  in  writ- 
ing and  were  made  without  consideration. 
Benson  v.  Bunting,  127  Cal.  532;  78  Am. 
St.  Rep.  81;  59  Pac.  991.  Though  the  cer- 
tificate of  sale  incorrectly  names  one  year 
as  the  time  for  redemption,  yet  where  the 
mortgage  was  made  prior  to  the  amend- 
ment of  this  section  in  1897,  fixing  the 
limit  of  one  year,  as  matter  of  law  the 
purchaser  is  entitled  to  a  deed  at  the 
expiration  of  six  months.  Tuohy  v.  Moore, 
133  Cal.  516;  65  Pac.  1107;  Malone  v.  Roy, 


134  Cal.  344;  66  Pac.  313;  and  see  Savings 
Bank  v.  Barrett,  126  Cal.  413;  58  Pac. 
914;  Benson  v.  Bunting,  127  Cal.  532;  78 
Am.  St.  Rep.  81;  59  Pac.  991;  Havnes  v. 
Tredway,  133  Cal.  400;  65  Pac.  892.  A 
judgment  creditor  whose  judgment  is  de- 
layed from  becoming  a  lien  within  the 
statutory  period  for  redemption  from  an 
execution  sale  is  not  entitled  to  equitable 
relief  as  a  redemptioner  thereafter,  on  the 
ground  that  the  delay  was  caused  by  the 
intervention  of  legal  holidays  specially  de- 
clared by  the  governor.  Summers  v.  Ham- 
mell, 17  Cal.  App.  493;  120  Pac.  63. 

Legal  title  during  time  for  redemption. 
The  legal  title  remains  in  the  judgment 
debtor  or  mortgagor  during  the  time  for 
redemption.  Simpson  v.  Castle,  52  Cal. 
644.  The  purchaser  may  be  both  a  credi- 
tor and  a  purchaser,  and  still  have  a  lien 
prior  to  that  of  the  redemptioner:  this 
can  be  so,  only  upon  the  principle  that 
the  legal  estate  is  still  in  the  judgment 
debtor  until  the  delivery  of  the  sheriff's 
deed.    Knight  v.  Fair,  9  Cal.  117. 

Redemption-money.  A  judgment  debtor 
is  not  a  redemptioner,  within  the  mean- 
ing of  this  section;  and  he  may  redeem 
by  paying  the  purchaser  the  purchase- 
money,  with  the  statutory  percentage  and 
the  taxes:  he  is  not  obliged  to  pay  other 
liens  which  the  purchaser  may  have  on 
the  property;  but  if  a  redemptioner,  or 
creditor,  holding  a  subsequent  lien  on  the 
property,  redeems,  he  must  also  pay  to 
the  purchaser  any  lien  he  may  have  prior 
to  that  of  the  redemptioner,  other  than 
that  for  which  the  property  was  sold. 
Sharp  V.  Miller,  47  Cal.  82.  A  judgment 
debtor  may  redeem  without  paying  the 
amount  of  a  prior  judgment  against  him, 
held  by  a  partnership,  of  which  the  pur- 
chaser is  a  member.  Campbell  v.  Oaks, 
68  Cal.  222;  9  Pac.  77.  The  sheriff  is  the 
agent  of  the  purchaser,  merely  for  the 
purpose  of  receiving  payment,  and  that 
payment,  to  bind  his  principal,  must  be 
made  in  the  amount  and  kind  of  money 
to  which  the  principal  is  entitled;  he  may 
refuse  the  tender  of  a  check;  but  if,  in 
a  bona  fide  transaction,  he  accepts  a  check 
as  a  conditional  payment,  and  that  check 
is  regularly  paid,  his  principal  has  suf- 
fered no  injury,  and  the  transaction  is 
quite  within  the  scope  of  the  agent's 
authority.  Hooker  v.  Burr,  137  Cal.  663; 
99  Am.  St.  Rep.  17;  70  Pac.  778.  If,  upon 
the  foreclosure  of  a  mortgage,  the  mort- 
gagee purchases  the  land  for  a  sum  less 
than  the  amount  of  the  judgment,  and 
dockets  a  judgment  for  the  deficiency,  a 
purchaser  from  the  mortgagor  of  the  land, 
pending  the  time  for  redemption,  is  en- 
titled as  successor  in  interest  to  redeem 
from  the  mortgage,  without  paying  the 
amount  of  the  deficiency.  Simpson  v. 
Castle,  52  Cal.  644. 


839 


JUDGMENT  DEBTOR,  ETC.,  MAY   REDEEM   WHEN. 


§703 


CODE  COMMISSIONERS'  NOTE.  A  party  en 
titled  to  redeem  iiiay  have  the  price  at  which  his 
interest  was  sold  ascertained,  in  order  that  he 
may  redeem,  liaun  v.  Reynolds,  llCal.  11.  When 
land  is  sold  at  judicial  sale,  and  the  proceeds  do 
not  amount  to  the  whole  judgment,  but  u  balance 
is  left  unpaid,  and  the  land  is  afterwards  re- 
deemed under  the  statute,  the  party  redeeming 
(who  was  an  assifjnee  of  the  judgment  debtor) 
was  bound  to  pay  the  whole  of  the  plaintiflf's 
judgment,  and  not  merely  his  bid,  with  interest 
and  twelve  per  cent.  The  lien  of  the  judgment 
continues  until  the  balance  is  paid.  Van  Dyke  v. 
Herman,  3  Cal.  295.  Strict  compliance  with  the 
statute  is  required  to  be  shown  by  a  person 
claiming  title  by  virtue  of  a  statutory  redemp- 
tion. Haskell  v.  Munlove,  14  Cal.  54.  A  owes 
B  a  debt;  to  secure  it,  A  and  C  jointly  mort- 
gage to  U  a  piece  of  land  owned  by  them  in  com- 
mon. Afterwards,  A  mortgages  his  undivided 
interest  in  the  land  to  secure  a  debt  to  1).  B 
forecloses  against  A  and  C,  and  buys  in  the  whole 
land,  not  making  D  a  party.  Period  for  redemp- 
tion having  gone,  B  gets  a  sheriff's  deed.  It  was 
decided  by  the  supreme  court  that  D,  as  subse- 
quent mortgagee,  may  redeem  A's  but  not  C's 
interest  in  the  land,  and  that  the  sale  is  final  as 
to  C's  interest,  D  not  being  a  necessary  party 
to  the  foreclosure.  The  redemption-money  for 
A's  interest  is  the  amount  of  B's  mortgage  debt, 
with  interest,  etc.,  less  one  half  of  the  purchase- 
money  of  the  whole  tract  sold  as  the  land  of  A 
and  C  under  the  foreclosure  sale.  Kirkham  v. 
Dupont,     14     Cal.     559.      Where     a     judgment     is 


against  two  persons,  one  only  of  whom  appeals, 
and  the  appeal  is  dismissed,  with  twenty  per  cent 
damages,  the  damages,  with  costs,  do  not  become 
part  of  the  original  judgment,  and  the  redemp- 
tioner  is  not  obliged  to  pay  them  when  he  re- 
deems from  a  sale  under  the  judgment.  Where 
a  ri'demptioner  pays  to  the  sheriff  an  excess  of 
money,  uuder  protest,  the  payment  is  not  compul- 
sory. The  sheriff  is  the  bailee  of  the  redemp- 
tioner  as  to  the  e-xcess,  who  may  recover  it  back. 
A  redemptioner  is  not  required  to  pay  interest  on 
tlie  purchaser's  bid,  over  and  above  the  twelve 
per  cent,  and  he  is  not  required  to  pay  interest 
on  the  whole  judgment  of  the  purchaser,  but  only 
on  the  e.xcess  over  and  above  the  bid.  McMillan 
V.  Vischer,  14  Cal.  232.  The  legal  estate  exists 
in  the  judgment  debtor  after  expiration  of  the 
time  for  redemption,  until  execution  of  the  con- 
veyance to  the  purchaser.  McMillan  v.  Richards. 
9  Cal.  365;  70  Am.  Dec.  655.  The  title  to  real 
estate  passes  only  upon  the  execution  and  de- 
livery of  the  deed.  Anthony  v.  Wessel,  9  Cal. 
103.  A  deed  of  a  sheriff,  which  was  executed 
before  the  expiration  of  the  statutory  period  of 
redemption,  is  void,  and  not  merely  voidable. 
Gross  v.  Fowler,  21  Cal.  392;  Savings  and  Loan 
Society  v.  Thompson,  32  Cal.  347;  Bernal  v. 
Gleim,  33  Cal.  668.  Before  the  owner  can  be 
made  to  pay  the  purchaser  taxes  on  redemption, 
the  purchaser  must  show  that  the  taxes  were 
legally  assessed  and  paid,  and  were  a  charge  on 
the  property  before  or  at  the  time  of  the  redemp- 
tion, and  the  tax-collector's  receipts  are  not  suffi- 
cient proof.    People  v.  Doane,   17  Cal.  476. 


§  703.  When  judgment  debtor  or  another  redemptioner  may  redeem. 
If  property  be  so  redeemed  by  a  redemptioner,  another  redemptioner  may, 
within  sixty  days  after  the  last  redemption,  again  redeem  it  from  the  last 
redemptioner  on  paying  the  sum  paid  on  such  last  redemption,  with  two 
per  cent  thereon  in  addition,  and  the  amount  of  any  assessment  or  taxes 
which  the  last  redemptioner  may  have  paid  thereon  after  the  redemption 
by  him,  with  interest  on  such  amount,  and,  in  addition,  the  amount  of  any 
liens  held  by  said  last  redemptioner  prior  to  his  own,  wdth  interest ;  but 
the  judgment  under  which  the  property  was  sold  need  not  be  so  paid  as 
a  lien.  The  property  may  be  again,  and  as  often  as  a  redemptioner  is  so 
disposed,  redeemed  from  any  previous  redemptioner  within  sixty  days 
after  the  last  redemption,  on  paying  the  sum  paid  on  the  last  previous  re- 
demption, with  two  per  cent  thereon  in  addition,  and  the  amounts  of  any 
assessments  or  taxes  which  the  last  previous  redemptioner  paid  after  the 
redemption  by  him,  with  interest  thereon,  and  the  amount  of  any  liens, 
other  than  the  judgment  under  which  the  property  was  sold,  held  by  the 
last  redemptioner  previous  to  his  own,  with  interest.  Written  notice  of 
redemption  must  be  given  to  the  sheriff  and  a  duplicate  filed  with  the 
recorder  of  the  county,  and  if  any  taxes  or  assessments  are  paid  by  the 
redemptioner,  or  if  he  has  or  acquires  any  lien  other  than  that  upon  which 
the  redemption  was  made,  notice  thereof  must  in  like  manner  be  given  to 
the  sheriff'  and  filed  with  the  recorder;  and  if  such  notice  be  not  filed,  the 
property  may  be  redeemed  without  paying  such  tax,  assessment,  or  lien. 
If  no  redemption  be  made  within  twelve  months  after  the  sale,  the  pur- 
chaser, or  his  assignee,  is  entitled  to  a  conveyance;  or  if  so  redeemed,  when- 
ever sixty  days  have  elapsed,  and  no  other  redemption  has  been  made,  and 
notice  thereof  given,  and  the  time  for  redemption  has  expired,  the  last  re- 
demptioner, or  his  assignee,  is  entitled  to  a  sheriff's  deed;  but,  in  all  cases, 
the  judgment  debtor  shall  have  the  entire  period  of  tw'elve  months  from 
the  date  of  the  sale  to  redeem  the  property.     If  the  judgment  debtor  re- 


§703 


EXECUTION. 


840 


deem,  he  must  make  the  same  payments  as  are  required  to  effect  a  redemp- 
tion b}^  a  redemptioner.  If  the  debtor  redeem,  the  effect  of  the  sale  is 
terminated,  and  he  is  restored  to  his  estate.  Upon  a  redemption  by  the 
debtor,  the  person  to  whom  the  payment  is  made  must  execute  and  deliver 
to  him  a  certificate  of  redemption,  acknowledged  or  proved  before  an  officer 
authorized  to  take  acknowledgments  of  conveyances  of  real  property.  Such 
certificate  must  be  filed  and  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  property  is  situated,  and  the  recorder  must  note  the 
record  thereof  in  the  margin  of  the  record  of  the  certificate  of  sale. 


Writ  of  assistance.    Ante,  §  682. 
Certificate,  recording.     Pol.  Code,  §  4133. 

Legislation  §  703.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  232,  as  amended  by 
Stats.  1860,  p.  302,  which  read:  "If  property  be 
so  redeemed  by  a  redemptioner,  either  the  judg- 
ment debtor  or  another  redemptioner  may,  within 
sixty  days  after  the  last  redemption,  again  re- 
deem it  from  the  last  redemptioner,  on  paying  the 
sum  paid  on  such  last  redemption,  with  four  per 
cent  thereon  in  addition,  and  the  amount  of  any 
assessment  or  taxes  which  the  said  last  redemp- 
tioner may  have  paid  thereon  after  the  redemp- 
tion by  him,  with  interest  on  such  amount,  and 
in  addition  the  amount  of  any  liens  held  by  said 
last  redemptioner  prior  to  his  own,  with  interest ; 
provided,  that  the  judgment  under  which  the 
property  was  sold  need  not  be  so  paid  as  a  lien. 
The  property  may  be  again,  and  as  often  as  the 
debtor  or  a  redemptioner  is  so  disposed,  redeemed 
from  any  previous  redemptioner,  within  sixty 
days  after  the  last  redemption,  with  four  per 
cent  thereon  in  addition,  and  the  amount  of  any 
assessments  or  taxes  which  the  last  previous  re- 
demptioner paid  after  the  redemption  by  him, 
with  interest  thereon,  and  the  amount  of  any 
liens,  other  than  the  judgment  under  which  the 
property  was  sold,  held  by  the  said  last  redemiJ- 
tioner  previous  to  his  own,  with  interest.  Notice 
of  redemption  shall  be  given  to  the  sheriff;  if  no 
redemption  be  made  within  six  months  after  the 
sale,  the  purchaser,  or  his  assignee,  shall  be  en- 
titled to  a  conveyance;  or  if  so  redeemed,  when- 
ever sixty  days  have  elapsed,  and  no  other 
redemption  has  been  made  and  notice  thereof 
given,  the  time  for  redemption  shall  have  expired, 
and  the  last  redemptioner  or  his  assignee,  shall 
be  entitled  to  a  sheriff's  deed.  If  the  debtor  re- 
deem at  any  time  before  the  time  for  redemption 
expires,  the  effect  of  the  sale  shall  be  terminated 
and  he  be  restored  to  his  estate."  When  §  703 
was  enacted  in  1872,  (1)  "said"  was  omitted 
before  "last  redemptioner  may  have  paid";  (2) 
"provided,  that"  was  omitted  after  "with  in- 
terest," and  a  new  sentence  made,  beginning  with 
"The  judgment";  (3)  "said"  was  omitted  before 
"last  redemptioner  previous";  (4)  "shall"  was 
changed  to  "must"  after  "Notice  of  redemption," 
and  "shall  be"  was  changed  to  "is"  before  "en- 
titled to  a  conveyance";  (5)  "and"  was  omitted 
before  "the  time"  and  inserted  before  "the  last"  ; 
(6)  "shall  have"  was  changed  to  "has"  before 
"expired";  (7)  "shall  be"  was  changed  to  "is" 
before  "entitled"  and  before  "terminated" ;  and 
(8)    "be"    was   changed   to    "is"    before    "restored 

2.  Amended  by  Code  Amdts.  1873-74,  p.  323, 
(1)  striking  out  "either  the  judgment  debtor  or" 
before  "another  redemptioner"  ;  (2)  adding  "but" 
before  "the  judgment  under  which";  (3)  striking 
out  "the  debtor  or"  after  "as  often  as";  (4) 
affixing  the  suffix  "(er)"  to  "redemption,"  and 
adding  after  this  erroneous  correction  the  words 
"on  paying  the  sum  paid  on  the  last  previous 
redemption";  (5)  changing  "assessments"  to 
"assessment"  before  "or  ta.xes"  ;  (6)  prefixing  the 
sentence  beginning  "Notice"  with  the  word  "Writ- 
ten," and  adding  to  the  sentence  that  part  begin- 
ning with  the  words  "and  a  duplicate"  and  ending 
"assessment,  or  lien";  (7)  adding,  at  end  of 
sentence  beginning  "If  no  redemption,"  the  last 
clause,  "but  in  all  cases,"  etc.,  and  adding  there- 
after a  new  sentence,  "If  the  judgment  debtor 
redeem,"    etc.;    (8)    changing   sentence   beginning 


"If  the  debtor"  to  read  as  at  present;  (9)  adding 
the  last  two  sentences  of  the  present  section, 
beginning   "Upon   a  redemption." 

3.  Amended  by  Stats.  1895,  p.  226,  (1)  in 
first  sentence,  changing  "four  per  cent"  to  "two 
per  cent,"  (2)  in  sentence  beginning  "The  prop- 
erty may,"  changing  (a)  "four  per  cent"  to  "two 
per  cent,"  and  (b)  '  assessment"  to  "assessments." 

4.  Amended  by  Stats.  1897,  p.  41,  (1)  in 
sentence  beginning  "The  property  may,"  chan- 
ging "amount"  to  "amounts"  before  "of  any 
assessments";  and  (2)  in  sentence  beginning  "If 
no  redemption,"  changing  "six  months"  to  "twelve 
months,"  in  both  instances. 

Successive  redemptions.  If  the  prop- 
erty sold  be  redeemed  by  the  redemptioner 
defined  in  the  second  subdivision  of  §  701. 
ante,  another  redemptioner  may,  within 
sixty  days  after  the  redemption,  again 
redeem  it  from  the  last  redemptioner,  on 
making  the  payments  prescribed  in  this 
section.  Calkins  v.  Steinbach,  66  Cal.  117; 
4  Pae.  1103. 

Redemption  from  foreclosure.  The  Prac- 
tice Act  made  no  distinction  between 
judgments  rendered  in  suits  to  foreclose 
mortgages  and  judgments  of  a  different 
character;  and  sales  under  executions  is- 
sued on  judgments  for  foreclosure  are  sub- 
ject to  redemption,  as  in  other  cases. 
Stout  V.  Macy,  22  Cal.  647. 

Sufficiency  of  redemption.  Where  the 
redemptioner  presents  evidence  of  title, 
pays  the  money  required,  and  receives  a 
certificate  of  redemption,  the  redemption 
is  sufiicient.  Pollard  v.  Harlow,  138  Cal. 
390;  71  Pac.  454. 

Who  is  not  a  redemptioner.  The  grantee 
of  an  interest  in  lands  subject  to  a  life 
estate,  who  redeems  property  from  fore- 
closure sale,  is  not  a  redemptioner  as  that 
term  is  used  in  this  section,  and  is  not 
substituted  to  the  full  rights  of  the  pur- 
chaser and  entitled  to  a  deed  without  a 
resale;  by  such  redemption,  the  sale  is 
set  at  large,  leaving  the  land  subject  to 
a  lien  in  his  favor,  and  he  is  entitled  to 
contribution  from  the  life  tenant  and  sev- 
eral remaindermen  for  their  several  por- 
tions of  the  monev  paid  to  redeem  the 
land.  Warner  v.  Freud,  138  Cal.  651;  72 
Pac.  345. 

Estoppel  to  question  validity  of  redemp- 
tion. Whether  a  person  seeking  to  redeem 
from  sheriff's  sale  is  authorized  to  make 
such  redemption,  is  a  question  which  con- 
cerns him  and  the  purchaser  alone;  and 
if  the  purchaser  is  willing  to  consider  him 


841 


REDEMPTION — EFFECT — CERTIFICATE — DEED — PAYMZXTS. 


§704 


as  a  redemptioner,  and  accepts  and  retains 
the  redeniiition-money  paid  by  him,  he  can- 
not thereafter  question  the  effect  of  such 
redemption.  White  y.  Costigan,  134  Cal. 
33;  6G  Pac.  78;  and  see  Abadie  v.  Lobero, 
36  Cal.  390. 

Effect  of  redemption.  The  redemption 
is  equivalent  to  a  transfer  or  assignment 
of  the  certificate  of  sale;  and  altliough  the 
redemptioner  may  not  be  entitled  to  de- 
mand the  amount  of  his  lien  from  a 
subsequent  redemptioner  because  of  his 
failure  to  comply  strictly  with  the  law, 
yet  if  he  is  entitled  to  redeem,  and  effects 
the  redemption  to  the  satisfaction  of  the 
purchaser,  the  sheriff's  deed  passes  the 
same  title  as  it  would  have  done  had  it 
been  executed  to  the  purchaser  without  re- 
demption. Bagley  v.  Ward,  37  Cal.  121; 
99  Am.  Dec.  256;  White  v.  Costigan,  134 
Cal.  33;  66  Pac.  78;  and  see  Eldridge  v. 
Wright,  55  Cal.  531.  When  a  redemption 
is  made,  all  interest  to  the  realty  possessed 
by  the  purchaser  at  the  sale  ceases,  and 
the  title  of  the  judgment  debtor  stands 
as  if  no  sale  had  ever  been  made.  Phil- 
lips V.  Hagart,  113  Cal.  552;  54  Am.  St. 
Rep.  369;  45  Pac.  843;  W^arner  v.  Freud, 
138  Cal.  651;  72  Pac.  345.  The  effect  of  a 
redemption  by  a  successor  in  interest, 
holding  the  legal  and  equitable  title,  is  a 
restoration  to  the  original  estate;  but  this 
does  not  apply  to  one  holding  only  the 
equitable  title  under  a  certificate  issued 
upon  a  second  sale.  Bristol  v.  Hershey,  7 
Cal.  App.  738;  95  Pac.  1040. 

Certificate  of  redemption.  It  is  not 
necessary  that  the  certificate  of  redemp- 
tion, where  the  redemption  is  made  by  the 
successor  in  interest,  shall  state  the  capa- 
city in  which  such  redemption  is  made. 
Pollard  V.  Harlow,  138  Cal.  390;  71  Pac. 
454. 

Sheriff's  deed.  A  sheriff's  deed  is  con- 
clusive evidence  of  the  facts  of  the  sale 
as  recited  therein  (Kelley  v.  Desmond,  63 
Cal.  517;  and  see  Hihn  v.  Peck,  30  Cal. 
280;  Blood  v.  Light,  38  Cal.  649;  99  Am. 
Dec.  441;  Mayo  v.  Foley,  40  Cal.  281);  and 
it  vests  in  the  purchaser  the  title  of  the 
execution  debtor  (Kelley  v.  Desmond,  63 
Cal.  517);  but  a  deed  given  by  the  sheriff, 
after  redemption,  is  a  nullitv.  Phillips  v. 
Hagart,  113  Cal.  552;  54  Am.'st.  Rep.  369; 
45  Pac.  843. 


Reforming  sheriff's  deed.    See  note  78  Am.  Dec. 

Effect  of  redemption.  See  note  67  Am.  St. 
Rep.  510. 

CODE  COMMISSIONERS'  NOTE.  1.  Title 
under  sheriff's  deeds  and  certificates.  Who  may 
execute  deed,  etc.  A  shcrilT  who  sell.s  land  under 
i.\t-cution,  and  gives  a  certificate  of  tlie  Hale  to 
tlie  purchaser,  is  the  proper  person  to  make  tlio 
deed,  notwithstanding  his  term  of  ofhce  has  in 
the  mean  time  expired.  Anthony  v.  Wessel,  9 
Cal.  103;  see  Lewes  v.  Thompson,  3  Cal.  266. 
The  legal  estate  is  still  in  the  judgment  debtor 
until  the  delivery  of  the  sherirf's  deed.  Knight  v. 
Kair,  9  Cal.  117.  Title  of  purchaser  at  judicial 
sale  cannot  be  attacked  in  a  collateral  action. 
Nagle  V.  Macy,  9  Cal.  4'26.  If  parties  claim  un- 
der sheriff's  deed,  they  are  chargeable  with  no- 
tice of  the  defects  in  the  judgnuint  upon  which 
execution  issued.  Wells  v.  Stout,  9  Cal.  479.  If 
a  person  claims  a  sheriff's  deed  as  having  re- 
deemed the  property  as  successor  in  interest  of 
the  judgment  debtor,  bis  offer  to  redeem  must  be 
made  in  that  character.  A  sheriff's  certificate  of 
the  purchase  of  property  as  that  of  the  defend- 
ant in  execution,  is  not  sufficient  to  entitle  the 
holder  to  redeem  as  such  successor,  at  least  until 
the  expiration  of  six  months.  Haskell  v.  Manlove, 
14  Cal.  54.  The  officer  who  makes  a  sale  of  land 
by  virtue  of  an  execution,  and  executes  to  the 
purchaser  a  deed  therefor,  must  recite  in  such 
deed  the  recovery  of  the  judgment,  the  names  of 
the  judgment  creditors  and  debtors,  and  the  issu- 
ing of  an  execution  on  the  judgment,  and  the  levy 
and  sale.  The  recital  of  such  facts  is  essential 
to  show  the  transmission  of  the  debtor's  title  in 
the  property  to  the  purchaser.  Donahue  v.  Mc- 
Nulty,  24  Cal.  411;  85  Am.  Dec.  78;  People  v. 
Doe,  31  Cal.  220.  A  sheriff's  deputy  may  exe- 
cute a  deed  for  property  sold  under  execution, 
but  it  must  be  executed  in  the  name  of  the  sher- 
iff. Lewis  V.  Thompson,  3  Cal.  266;  Mills  v. 
Tukey,  22  Cal.  373;  83  Am.  Dec.  74.  And  if  the 
sheriff's  term  of  office  had  expired  at  the  time 
of  its  execution,  the  authority  of  the  deputy  must 
be  shown,  to  authorize  such  deed  to  be  read  in 
evidence  in  an  action  of  ejectment.  Cloud  v. 
El  Dorado  County,  12  Cal.  128;  73  Am.  Dec.  526. 
See  also,  for  general  matters  in  relation  to  sher- 
iffs' deeds  and  certificates,  Goodenow  v.  Ewer,  16 
Cal.  462;  76  Am.  Dec.  540;  People  v.  Mavhew, 
26  Cal.  655;  Page  v.  Rogers,  31  Cal.  298;  Moore 
V.  Martin,  38  Cal.  438;  Emerson  v.  Sansome, 
41  Cal.  552. 

2.  Mandamus  to  compel  sheriff  to  execute  con- 
veyance. When  mandamus  will  not  lie  against  a 
sheriff  to  compel  him  to  make  a  deed  to  land  to  a 
purchaser  at  execution  sale.  Williams  v.  Smith, 
6  Cal.  91;  see  Frink  v.  Murphy,  21  Cal.  Ill;  81 
Am.  Dec.  149. 

3.  Proof  of  payment  of  taxes  by  purchasers. 
Before  the  owner  can  be  compelled  on  redemp- 
tion to  pay  certain  taxes  paid  on  the  property, 
the  purchaser  must  show  that  the  taxes  were 
legally  assessed  and  paid,  and  were  a  cliarge  on 
the  property  at  or  before  the  time  of  redemption. 
The  tax-collector's  receipts  are  not  sufficient  proof. 
People  V.  Doane,  17  Cal.  477.  A  decree  cannot 
order  sheriff  to  execute  deed  to  buyer  on  fore- 
closure sale,  the  land  being  sold  subject  to  re- 
demption in  six  months.  Harlan  v.  Smith,  6  Cal. 
173. 


§  704.    In  cases  of  redemption,  to  whom  the  payments  are  to  be  made. 

The  payments  mentioned  in  the  last  two  sections  may  be  made  to  the  ])ur- 
chaser  or  redemptioner,  or  for  him,  to  the  officer  who  made  the  sale.  When 
the  judgment  under  which  the  sale  has  been  made  is  paj^able  in  a  specified 
kind  of  money  or  -currency,  payments  must  be  made  in  the  same  kind  of 
money  or  currency,  and  a  tender  of  the  money  is  equivalent  to  payment. 


Specified   kind   of   money.     Ante,  §§  682,    subd. 
4,   692. 

Legislation  8  704.      f:nacted   March    11,    1872; 
based     on     Practice     Act,  §  233,     as    amended    by 


Stats.  1863,  p.  690,  which  had  (1)  the  words  "as 
the  case  may  be"  after  "redemptioner";  (2) 
"said"  before  "payments"  and  "shall'  instead  of 
"must"  after  "payments"  :  and  (3)  "shall  be"  in- 
stead  of   "is"   before    "equivalent." 


§705 


EXECUTION. 


842 


Redemption-money  paid  to  whom.     The 

right  to  redeem  after  the  expiration  of  the 
statutory  jjeriod  depends  upon  the  condi- 
tions of  the  decree  granting  the  privilege 
of  redeeming;  and  where  one  of  these  is, 
that  the  money  shall  be  paid  to  a  person 
designated,  and  there  is  a  refusal  to  com- 
ply therewith,  the  right  to  redeem  is  lost. 
Bunting  v.  Haskell,  152  Cal.  426;  93  Pae. 
110. 

Sheriff  as  agent  of  purchaser  or  re- 
demptioner.  The  sheriff  is  not  so  far  the 
agent  of  the  purchaser  or  of  a  prior  re- 
demptioner  as  to  bind  or  estop  him  from 
questioning  the  validity  of  a  subsequent 
redemption  upon  which  the  money  is  paid 
to  the  sheriff.  Bennett  v.  Wilson,  122  Cal. 
509;  68  Am.  St.  Eep.  61;  55  Pac.  390. 

Effect  of  tender.  Tender  and  refusal 
are  equivalent  to  performance  in  dis- 
charging all  collateral  and  accessorial  liens 
and  rights,  and,  in  the  case  of  redemption 
of  land,  ipso  facto  work  a  restoration  of 
the  title  to  the  judgment  debtor  or  his 
successor  in  interest.  Leet  v.  Armbruster, 
143  Cal.  663;  77  Pac.  653.  Tender  is  not 
required  to  be  kept  good  for  the  purposes 
of  the  action:  it  is  the  tender  itself,  and 
its  refusal,  which  instantaneously  work 
the  discharge  of  the  purchaser's  lien  and 
the  divestiture  of  his  title,  although  the 
effect  of  the  tender  does  not  operate  as  a 
payment  of  the  debt  for  all  purposes,  as 
the  debt  still  remains  due,  with  the  sole 
right   left   in   the   purchaser   of   an   action 

§705.  What  a  redemptioner  must  do  in  order  to  redeem.  A  redemp- 
tioner  must  produce  to  the  officer  or  person  from  whom  he  seeks  to  re- 
deem and  serve  with  his  notice  to  the  sheriff  making  the  sale,  or  his 
successor   in    office ; 

1.  A  copy  of  the  docket  of  the  judgment  under  which  he  claims  the  right 
to  redeem,  certified  by  the  clerk  of  the  court,  or  of  the  county  where  the 
judgment  is  docketed;  or,  if  he  redeem  upon  a  mortgage  or  other  lien,  a 
note  of  the  record  thereof,  certified  by  the  recorder; 

2.  A  copy  of  any  assignment  necessary  to  establish  his  claim,  verified  by 
the  affidavit  of  himself,  or  of  a  subscribing  witness  thereto; 

3.  An  affidavit  by  himself  or  his  agent,  showing  the  amount  then  actually 
due  on  the  lien. 

Legislation  §  705.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  234),  (1)  changing,  in 
the  introductory  paragraph,  "shall"  to  "must," 
and  (2)  omitting  "and"  at  end  of  subd.  2,  and 
as  thus  enacted  read  as  at  present,  except  for  the 
addition  made  in   1909. 

2.  Amended  by  Stats.  1909.  p.  967,  in  intro- 
ductory paragraph  adding  the  words  after  "sher- 
iflf." 


at  law  for  the  recovery  of  the  money.  Leet 
v.  Armbruster,  143  Cal.  663;  77  Pac.  653; 
and  see  Hershey  v.  Dennis,  53  Cal.  77; 
Phillips  V.  Hagart,  113  Cal.  5o2;  54  Am. 
St.  Rep.  369;  45  Pac.  843;  Haile  v.  Smith, 
113  Cal.  656;  45  Pac.  872.  Where  the  law 
declares  that  an  offer  to  redeem  shall  be, 
so  far  as  the  restoration  of  the  estate  is 
concerned,  the  equivalent  of  redemption, 
the  i^urehaser  buys  with  knowledge  of 
this  requirement,  and  takes  his  title  sub- 
ject to  the  condition  that  he  may  be 
divested  of  it  either  by  redemption  or  by 
a  valid  offer  to  redeem.  Leet  v.  Arm- 
bruster, 143  Cal.  663;  77  Pac.  653. 

CODE    COMMISSIONERS'   NOTE,      Generally. 

See  People  v.  Hays,  4  Cal.  127,  commented  on 
in  Moore  v.  Martin,  38  Cal.  439;  McMillan  v. 
Vischer,  14  Cal.  232;  Mitchell  v.  Hackett,  14  Cal. 
661;  People  v.  Doane,  17  Cal.  476;  People  v. 
Mayhew,  26  Cal.  658;  Baber  v.  McLellan,  30 
Cal.  137.  Payment  in  certain  kind  of  money. 
Belloc  V.  Davis,  38  Cal.  243.  Tender  of  sum  due 
on  mortgage,  whether  the  tender  must  be  kept 
good,  etc.  See  Ketchum  v.  Crippen,  37  Cal.  223. 
By  the  phrase,  "officer  who  made  the  sale,"  is 
meant  the  incumbent  at  the  time  of  the  acts  of 
sale,  and  not  the  official  character  of  the  person; 
and  if  such  oftieer  is  dead,  his  successor  cannot 
receive  the  redemption-monev.  People  v.  Boring, 
8  Cal.  406;  68  Am.  Dec.  331;  Anthony  v.  Wes- 
sel,  9  Cal.  103.  Where  a  redemptioner,  under  the 
statute,  pays  to  the  sheriff  an  excess  of  money, 
under  protest  as  to  the  excess,  the  payment  is  not 
compulsory.  The  sheriff  is  the  bailee  of  the  plain- 
tiff as  to  the  excess,  who  may  recover  it  back  on 
demand,  the  money  not  having  been  paid  over  to 
the  redemptionee.  McMillan  v.  Vischer,  14  Cal. 
232;  see  also  McMillan  v.  Richards,  9  Cal.  368; 
70  Am.  Dec.  655. 


Construction  of  section.  This  section 
applies  to  redemptioners  only,  as  defined 
in  the  second  subdivision  of  §  701,  ante. 
Yoakum  v.  Bower,  51  Cal.  539;  Phillips  v. 
Hagart,  113  Cal.  552;  54  Am.  St.  Rep.  369; 
45  Pac.  843.  .Judgment  debtors  and  their 
successors  in  interest  are  not  redemption- 
era,  and  therefore  are  not  required  to  fol- 


low the  demands  of  this  section  in  making 
a  redemption.  Phillips  v.  Hagart,  113  Cal. 
552;  54  Am.  St.  Rep.  369;  45  Pac.  843; 
Schumacher  v.  Langford,  20  Cal.  App.  61; 
127  Pac.  1057. 

Production  of  required  papers  by  re- 
demptioner. The  right  to  redeem  is  statu- 
tory, given  only  in  the  event  of  a  tender 
and  production  of  certain  statutory  proofs; 
and  a  valid  redemption  cannot  be  made, 
unless  the  creditor  presents  a  copy  of  the 
docket  of  the  judgment  under  which  he 
claims,  duly  certified.  Haskell  v.  Maulove, 
14  Cal.  54.  The  production  of  the  papers 
mentioned  in  the   statute  as   necessary  to 


843 


COURT   MAY  RESTRAIN  WASTE  WHEN — RENTS   AND  PROFITS.       §§  TOG,  707 


entitle  one  to  redeem,  as  between  the  im- 
mediate parties  to  the  redemption,  may  be 
waived.  Bajjley  v.  Ward,  .37  ("al.  121;  99 
Am.  Dec.  25G.  The  power  of  the  sheriff  is 
altogether  statutory;  and  where  the  re- 
demption is  attempte<l  to  be  ett'ected 
through  him,  he  lias  no  authority  either 
to  receive  the  redemption-money  from  one 
claiming  the  right  to  redeem  under  the 
judgment  or  to  execute  a  deed  to  him, 
unless  the  redemptioner  produces  a  copy 
of  the  docket  of  his  judgment.  Wilcoxson 
V.  Miller,  49  Cal.  193.  The  sheriff  has  no 
authority  to  convey,  in  the  absence  of  a 
written  assignment;  but,  where  the  intent 
is    apparent,    the    transaction,    interpreted 


in  the  light  of  the  circumstances,  and  of 
the  law  and  usage  of  the  state,  may  be 
regarded,  in  equity,  as  an  assignment  of 
the  purchaser's  interest.  White  v.  Costi- 
gan,  6  Cal.  Unrep.  641;  6:5  Pac.  1075; 
Abadie  v.  Lobero,  36  Cal.  390;  Eldridge 
V.  Wright,  55  Cal.  531.  Where  the  sheriff's 
deed  does  not  recite  that  a  copy  of  the 
docket  of  the  judgment  was  produced  to 
him  by  the  party  seeliing  to  redeem,  and 
it  is  not  shown  aliunde  that  sucli  copy 
was  produced,  such  deed  does  not  transfer 
title.    Wilcoxi^on  v.  Miller,  49  Cal.  193. 

CODE  COMMISSIONERS'  NOTE.  See  Haskell 
V.  Manlove,  14  Cal.  54;  Reynolds  v.  Harris,  14 
Cal.  667;  76  Am.  Dec.  459. 


§  706.  Until  the  expiration  of  redemption-time,  court  may  restrain  waste 
on  the  property.  What  considered  waste.  Until  the  expiration  of  the 
time  allowed  for  redemption,  the  court  may  restrain  the  commission  of 
waste  on  the  property,  by  order  granted  with  or  without  notice,  on  the  ap- 
plication of  the  purchaser  or  the  judgment  creditor.  But  it  is  not  waste 
for  the  person  in  possession  of  the  property  at  the  time  of  sale,  or  entitled 
to  possession  afterwards,  during  the  period  allowed  for  redemption,  to  con- 
tinue to  use  it  in  the  same  manner  in  which  it  was  previously  used ;  or  to 
use  in  the  ordinary  course  of  husbandry ;  or  to  make  the  necessary  repairs 
of  buildings  thereon;  or  to  use  wood  or  timber  on  the  property  therefor; 
or  for  the  repair  of  fences;  or  for  fuel  in  his  family,  while  he  occupies  the 
property. 

that  is  of  any  essential  value;  and  it  is 
to  the  interest  of  all  the  parties  that  a 
receiver  be  appointed,  rather  than  stop 
working  the  claims  entirely.  Hill  v.  Tay- 
lor, 22  Cal.  191. 

When  action  may  be  commenced  to  re- 
cover house  removed  from  mortgaged 
premises.  Claim  and  delivery  to  recover 
a  house  moved  from  mortgaged  premises 
after  foreclosure  sale,  and  before  the  com- 
missioner's deed  is  executed,  is  prema- 
turely brought,  where  the  statutory  time 
for  redemption  has  not  expired,  and  the 
plaintiff  is  therefore  not  entitled  to  im- 
mediate possession  of  the  property.  Peo- 
ple's Sav.  Bank  v.  Jones,  114  Cal.  422;  46 
Pac.  278. 


Waste,     Post,  §§  745,  746. 

Legislation  g  706.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  235),  (1)  after  "But 
it,"  changing  "shall  not  be  deemed"  to  "is  not," 
and  (2)  omitting  "it"  before  "in  the  ordinary." 
Qua're  as  to  second  change. 


The  judg- 
remain  in 
where    the 


Court    may    restrain   waste. 

ment  debtor  is  entitled  to 
possession  of  the  projjerty, 
mortgage  thereon  is  foreclosed,  until  the 
expiration  of  the  time  allowed  for  re- 
demption ;  during  that  period  the  pur- 
chaser has  and  can  assert  no  right  to  the 
possession  thereof,  though,  on  his  applica- 
tion, the  court  may  restrain  the  commis- 
sion of  waste  on  the  propertv.  People's 
Sav.  Bank  v.  .Jones,  114  Cal.  422;  46  Pac. 
278;  West  v.  Conant,  100  Cal.  231;  34  Pac. 
705. 

Court  may  appoint  receiver.  A  receiver 
should  be  appointed  for  a  mine,  where, 
during  the  period  of  redemption,  it  is 
worked,  and  gold  extracted  therefrom,  to 
such  an  extent  as  to  constitute  waste,  or 
destruction   of   the  property   itself,   or   all 


CODE  COMMISSIONERS'  NOTE.  Purchaser 
of  mining  claim,  where  judgment  debtor  remains 
in  possession,  working  the  claim,  may  have  a  re- 
ceiver appointed  to  take  charge  of  the  proceeds 
during  the  time  allowed  for  redemption.  Hill  v. 
Taylor,  22  Cal.  191.  Purchaser  entitled  to  rents 
and  profits  of,  from  date  of  sale  until  time  for 
redemption  expires.  Harris  v.  Reynolds,  13  Cal 
515  ;  73  Am.  Dec.  600. 


§  707.  Rents  and  profits.  The  purchaser,  from  the  time  of  the  sale  until 
a  redemption,  and  a  redemptioner,  from  the  time  of  his  redemption  until 
another  redemption,  is  entitled  to  receive,  from  the  tenant  in  possession, 
the  rents  of  the  property  sold,  or  the  value  of  the  use  and  occupation 
thereof.  But  when  any  rents  or  profits  have  been  received  by  the  judg- 
ment creditor  or  purchaser,  or  his  or  their  assigns,  from  the  property  thus 
sold  preceding  such  redemption,  the  amounts  of  such  rents  and  profits  shall 


§707 


EXECUTION. 


844 


be  a  credit  upon  the  redemption-money  to  be  paid ;  and  if  the  redemptioner 
or  judgment  debtor,  before  the  expiration  of  the  time  allowed  for  such  re- 
demption, demands  in  writing  of  such  purchaser  or  creditor,  or  his  assigns, 
a  written  and  verified  statement  of  the  amounts  of  such  rents  and  profits 
thus  received,  the  period  for  redemption  is  extended  five  days  after  such 
sworn  statement  is  given  by  such  purchaser  or  his  assigns,  to  such  redemp- 
tioner or  debtor.  If  such  purchaser  or  his  assigns  shall,  for  a  period  of 
one  month  from  and  after  such  demand,  fail  or  refuse  to  give  such  state- 
ment, such  redemptioner  or  debtor  may  bring  an  action  in  any  court  of 
competent  jurisdiction,  to  compel  an  accounting  and  disclosure  of  such 
rents  and  profits,  and  until  fifteen  days  from  and  after  the  final  determina- 
tion of  such  action,  the  right  of  redemption  is  extended  to  such  redemp- 
tioner or  debtor. 

tion;  it  begins  at  the  time  of  the  pur- 
chase, and  continues  until  a  redemption  is 
made,  or  if  there  is  no  redemption,  then 
until  the  time  allowed  for  redemption  has 
expired.  Walker  v.  McCusker,  71  Cal.  594; 
12  Pac.  723;  Bc-rson  v.  Ewing,  84  Cal.  89; 
23  Pac.  1112;  and  see  Keynolds  v.  Lathrop, 
7  Cal.  43;  McDevitt  v.  Sullivan,  8  Cal. 
592;  Harris  v.  Eeynolds,  13  Cal.  514;  73 
Am.  Dec.  600;  Hill  v.  Tavlor,  22  Cal.  191; 
Webster  v.  Cook,  38  Cal.  423;  Duff  v. 
Eandall,  116  Cal.  226;  58  Am.  St.  Rep. 
158;  48  Pac.  66;  Yndart  v.  Den,  125  Cal. 
85;  57  Pac.  761.  Where  the  rent  is  pay- 
able annually,  the  purchasers  at  the  fore- 
closure sales  are  entitled  to  an  amount  of 
rent  in  proportion  as  the  time  intervening 
between  their  purchases  and  the  expira- 
tion of  the  year  term  bears  to  one  year, 
providing  the  six  months'  term  of  redemp- 
tion had  not  expired  in  the  mean  time. 
Clarke  v.  Cobb,  121  Cal.  595;  54  Pac.  74. 
The  purchaser  at  a  foreclosure  sale  is  not 
entitled  to  receive  any  of  the  rents  and 
profits  which  accrued  prior  to  the  time 
of  his  purchase;  and  he  cannot  sue  for 
and  recover  rents  and  profits  until  they 
are  collected  by  a  receiver.  Pendola  v. 
Alexanderson,  67  Cal.  337;  7  Pac.  756.  A 
sale  under  the  foreclosure  of  a  mortgage 
upon  leased  land,  upon  which  a  portion 
of  the  products  of  the  soil  was  to  be  de- 
livered annually  as  rent,  and  which  became 
due  and  payable  for  the  year  after  the 
purchase  from  the  sheriff,  and  before  the 
expiration  of  the  time  for  redemption, 
does  not  entitle  the  purchaser  to  the  whole 
of  the  rent,  but  he  is  entitled  only  to  an 
apportionment  of  a  share  of  the  annual 
rent,  in  proportion  to  the  unexpired  part 
of  the  lease  year  existing  after  the  pur- 
chase. Clarke  v.  Cobb,  121  Cal.  595;  54 
Pac.  74.  A  purchaser  of  land  at  sheriflf's 
sale  may  maintain  an  action  for  rent 
against  a  tenant  in  possession  under  the 
judgment  debtor,  before  the  expiration  of 
the  time  allowed  for  redemption,  and  as 
often  as  the  rent  becomes  due  under  the 
terms   of  the  lease  existing  when  he  pur- 


Legislation  §  707.  Enacted  March  11  1S73 
(based  on  Practice  Act,  §  236,  as  amended  by 
Stats.  1869-70,  p.  106),  (1)  changing  '  shall^  be 
to  "is"  before  "entitled";  (2)  changing  pro- 
vided that"  to  "But";  (3)  omitting  'provided 
further  that"  before  "if  the  redemptioner,  _  ana 
adding  after  "redemptioner"  the  words  'or  judg; 
ment  debtor";  (4)  changing  "shall  make  demand 
to  "demands"  before  "in  writing";  (o)  omitting 
(a)  "or  their"  before  "assigns"  and  (b)  for 
before  "a  written";  (6)  changing  "amount^  to 
"amounts";  (7)  ciianging  "shall  be"  to  "is  be- 
fore "extended"  and  before  "given";  (8)  adding 
"or  debtor"  after  "redemptioner";  (9)  omitting 
"and  provided  further,  that"  before  "If";  (10) 
adding  "or  debtor"  before  "may  bring";  (11) 
changing  "shall  be"  to  "is"  and  adding  or 
debtor"   in  last  line. 

Construction  of  section.  The  provisions 
of  this  section  have  no  reference  to  tax 
sales.    Mayo  v.  Woods,  31  Cal.  269. 

Judgment  creditor's  right  to  rents.  The 
judgment  creditor  does  uot  become  entitled 
to  the  value  of  the  use  and  occupation  of 
the  premises  until  the  sale  is  made.  Eng- 
lund  V.  Lewis,  25  Cal.  337. 

Rents  and  profits  pending  redemption. 
Rents  should  be  considered  in  dealing  with 
the  question  of  the  judgment  debtor's 
rip-ht  to  restitution  in  making  redemption, 
Yndart  v.  Den,  125  Cal.  85;  57  Pac.  761. 

Lessor's  right  to  rents.  A  lessor,  to 
whose  title  the  plaintiff  has  succeeded,  is 
not  entitled  to  the  rents  accruing,  nor  to 
the  value  of  the  use  and  occupation  of  the 
property,  subsequently  to  the  sale  under 
foreclosure,  unless  such  lessor  effected  a 
redemption  from  the  sale;  and  the  pay- 
ment of  rents  by  the  lessee  to  the  lessor, 
for  a  period  extending  beyond  the  date 
of  such  sale,  is  made  at  the  peril  of  the 
lessee.  Harris  v.  Foster,  97  Cal.  292;  33 
Am.  St.  Rep.  187;  32  Pac.  246. 

Purchaser's  right  to  rents.  The  pur- 
chaser of  real  property  at  an  execution 
sale  from  the  time  of  sale  until  a  re- 
demption, and  a  redemjitioner  from  the 
time  of  his  redemption  until  another  re- 
demption, is  entitled  to  receive  from  the 
tenant  in  possession  the  rents  of  the  prop- 
erty sold,  or  the  value  of  the  use  and  occu- 
pation thereof;  and  this  right  is  not 
limited  to  cases  where  there  is  a  redemp- 


845 


RENTS,  WHO  LIABLE  FOR — TENANT,  WUO  IS — RENT,  WHAT   IS. 


§707 


chased;  the  sale  operates  as  an  assignment 
of  the  lease  for  the  time.  Reynolds  v. 
Lathrop,  7  Cal.  4;!. 

Liability  of  tenant  in  possession  for 
rents.  The  liability  of  a  tenant  in  posses- 
sion to  the  jiurchaser,  for  rents  or  use  and 
occupation  from  the  day  of  sale  to  the 
expiration  of  the  time  for  redemption,  is 
a  statutory  liability,  and  exists  without 
the  assent  of  the  tenant:  it  is  not  a  lia- 
bility founded  upon  contract,  express  or 
ini]diod,  within  the  meaning  of  §  537,  ante, 
authorizing  the  issuance  of  an  attachment. 
Walker  v.  McCusker,  G5  Cal.  3GU;  4  Pac. 
206.  The  occupation  of  the  jircmises  from 
the  time  of  the  sheriff's  sale  to  the  execu- 
tion of  the  sheriff's  deed,  render  the  tenant 
prima  facie  liable  to  the  purchaser  for  the 
rent.  Webster' v.  Cook,  38  Cal.  423.  Where 
the  judgment  debtor  remains  in  possession 
of  the  property  during  the  redemption 
period,  and  collects  the  rents  and  profits, 
he  is  a  trustee  of  the  fund  for  the  pur- 
chaser, and  if  the  fund  is  in  danger  of  loss, 
a  bill  in  equity  to  account  will  lie.  Harris 
V.  Reynolds,  13  Cal.  514;  73  Am.  Dec.  600. 
A  tenant  in  possession,  paying  rent  to  an 
execution  defendant  after  the  sale,  is  not 
relieved  from  the  liability  cast  upjon  him 
to  pay  the  rent  to  the  purchaser.  Webster 
V.  Cook,  38  Cal.  423. 

Tenant  in  possession,  who  is.  The  term 
"tenant  in  possession"  is  generic,  and  is 
intended  to  tlesignate  the  class  of  persons 
from  whom  the  purchaser  is  to  receive 
the  rents,  and  embraces,  within  the  nat- 
ural and  usual  meaning  of  the  words,  a 
judgment  debtor,  as  well  as  his  lessee. 
Harris  v.  Reynolds,  13  Cal.  514;  73  Am. 
Dec.  600;  Knight  v.  Truett,  18  Cal.  113. 
Where  real  property  is  sold  at  a  foreclos- 
ure sale,  a  party  to  the  foreclosure  suit, 
who  thereafter  remains  in  possession  under 
a  claim  of  title  which  is  subject  to  the 
mortgage,  is  a  tenant  in  possession,  and 
liable,  as  such,  to  account  to  the  purchaser, 
in  an  action  of  assumpsit,  for  the  value  of 
the  use  and  occupation.  Walker  v.  Mc- 
Cusker, 71  Cal.  594;  12  Pac.  723.  The 
owner  in  fee  in  possession  is,  in  legal  con- 
templation, no  less  a  tenant  than  the  man 
who  occupies  under  him.  Harris  v.  Rey- 
nolds, 13  Cal.  514;  73  Am.  Dec.  600. 

Liability  of  administrator  for  rents,  etc. 
An  administrator  is  not  liable  for  the  use 
and  occupation  of  the  premises  belonging 
to  the  estate,  after  the  sale  thereof  by  the 
sheriff;  from  that  time  the  purchaser  is 
entitled  to  the  value  of  the  use  and  occu- 
pation, and  neither  the  estate  nor  the  par- 
ties interested  therein  have  any  claim 
thereto.  Walls  v.  Walker,  37  Cal.  424;  99 
Am.  Dec.  290;  and  see  McDevitt  v.  Sulli- 
van, 8  Cal.  592;  Harris  v.  Reynolds,  13  Cal. 
514;  73  Am.  Dec.  600;  Kline  v.  Chase,  17 
Cal.  596;  Knight  v.  Truett,  18  Cal.  113. 
An  administrator,  who  uses  and  occupies 
the  premises  belonging  to  the  estate,  after 


the  sheriff's  sale  thereof,  must  account 
to  the  purcliaser  for  the  value  of  such  use 
a:id  occui)ation.  Walls  v.  Walker,  37  Cal. 
4:jf;  99  Am.  Dec.  290. 

Pleading  in  actions  for  accounting  for 
rents.  The  allegation  that  rent  was  pay- 
able monthly  is  not  an  averment  that  it 
was  payable  in  advance.  Webster  v.  Cook, 
38  Cal.  423. 

Possession  of  property.  The  judgment 
debtor,  or  liis  successor  in  interest  in  the 
jiroperty,  is  entitled  to  its  jjossession  until 
the  time  for  a  redenijition  from  the  sale 
♦las  expired.  Purser  v.  Cady,  120  Cal.  214; 
52  Pac.  489. 

Purchaser's  interest  in  the  land.  The 
purchaser,  by  the  mere  fact  of  his  pur- 
chase, does  not  get  the  title  to  the  prop- 
erty sold  at  sheriff's  sale:  his  right  is 
rather  the  right  to  get  a  title  in  a  given 
contingency,  and  the  transaction  is  an 
executory,  not  an  executed,  contract;  he 
may  have  a  perfect  statutory  right  to  the 
profits,  without  having  a  right  to  the  sub- 
ject out  of  which  the  profits  proceed.  Har- 
ris V.  Reynolds,  13  Cal.  514;  73  Am.  Dec. 
600.  The  purchaser  has,  before  the  period 
for  redemption  expires,  a  species  of  equi- 
table conditional  estate,  which  becomes 
absolute  upon  the  expiration  of  the  time 
for  redemption,  leaving  thereafter  only 
the  barren  legal  title  in  the  judgment 
debtor  until  the  execution  and  delivery  of 
the  sheriff's  deed,  and,  during  this  redemp- 
tion period,  the  statute  regards  the  ])ur- 
chaser  as  the  owner  in  equity,  and  gives 
him  the  rents  and  profits.  Page  v.  Rogers, 
31  Cal.  294;  and  see  Bennett  v.  Wilson,  122 
Cal.  509;  68  Am.  St.  Rep.  61;  55  Pac.  390. 
The  purchaser  at  an  execution  sale,  who 
pays  the  purchase  price,  is  entitled  to  be 
regarded  as  an  innocent  purchaser,  though 
the  judgment  debtor  has  the  right  to  re- 
deem during  the  period  specified  in  the 
statute;  and  such  purchaser  is  not  affected 
by  equities  of  which  he  had  no  notice 
when  he  paid  the  purchase-money,  although 
he  had  notice  thereof  before  he  became 
entitled  to  a  deed.  Duff  v.  Randall,  116 
Cal.  226;  58  Am.  St.  Rep.  158;  48  Pac.  66. 

Undertaking  on  appeal.  An  undertak- 
ing on  appeal  from  a  judgment  which 
directs  the  delivery  of  possession  of  real 
pro{)erty,  must  provide  against  waste,  and 
for  the  payment  of  the  value  of  the  use 
and  occupation,  and  for  those  only,  where 
there  is  no  question  as  to  the  deficiency, 
pending  such  appeal.  Englund  v.  Lewis, 
25  Cal.  337. 

Rent,  defined  and  explained.  Rent  to 
be  paid  in  products  of  the  soil  after  har- 
vests is  rent,  within  the  meaning  of  this 
section;  and  contracts  providing  for  such 
are  in  no  sense  cropping  contracts.  Clarke 
V.  Cobb,  121  Cal.  595;  54  Pac.  74.  Rent 
payable  bv  the  year  is  divisible.  Clarke  v. 
Co'bb,  121  Cal.  595;  54  Pac.  74. 


§708 


EXECUTION. 


846 


Eight  of  purchaser  at  judicial  sale  with  respect 
to  rents.    See  note  Ann.   Cas.  1912B,  61. 

CODE  COMMISSIONEKS'  NOTE.  1.  Not  ap- 
plicable to  tax  sales.  This  section  was  held  not 
to  applv  to  sales  for  taxes,  in  Mayo  v.  Woods,  31 
Cal.  269. 

2.  Paying  taxes  on  property.  A  party  in  pos- 
session of  premises,  under  sheriff's  sale,  and  re- 
ceiving rents  and  profits  during  the  time  for 
redemption,  should,  as  between  him  and  defend- 
ant in  execution,  pay  the  taxes  assessed.  If  the 
owner  does  not  pay  them,  then  the  party  in  pos- 
session is  required  to  pay.  If  the  premises  are 
sold  for  taxes,  and  the  person  in  possession  buys 
them  in,  he  can  derive  no  benefit  from  the  sale, 
even  though  the  premises  were  bid  in  by  one  of 
two  partners,  while  the  possession  under  the  sher- 
iff's sale  was  by  both  partners.  The  duty  to  paj 
the  tax  was  several,  as  well  as  joint.  Kelsey  v. 
Abbott,  13  Cal.  609;  see  also  Goodenow  v.  Ewer, 
16  Cal.  472  ;  76  Am.  Dec.  540. 

3.  Account  of  rents  and  profits.  From  the 
time  of  sheriff's  sale  the  purchaser  may  receive 
the  value  of  the  use  and  occupation.  Walls  v. 
Walker,  37  Cal.  425;  99  Am.  Dec.  290;  McDevitt 
v.  Sullivan,  8  Cal.  592;  Harris  v.  Reynolds,  13 
Cal  514;  73  Am.  Dec.  600;  Kline  v.  Chase,  17 
Cal.  596;  Knight  v.  Truett,  18  Cal.  113;  Rey- 
nolds V.  Lathrop,  7  Cal.  43.  The  occupation  of 
the   land    during   the   period   for    redemption   ren- 


ders the  tenant  in  possession  liable  to  the  pur- 
chaser for  rent.  If  the  tenant  had  paid  the  rent 
in  advance,  that  is  a  matter  in  avoidance  of  ten- 
ant's liability  to  purchaser  for  rent.  But  it  will 
not  avoid  the  liability  to  purchaser  if  the  tenant 
pavs  the  rent  in  advance  to  defendant  in  execu- 
tion after  sale.  Webster  v.  Cook,  38  Cal.  424; 
see  also  McDevitt  v.  Sullivan,  8  Cal.  S92.  The 
words  "tenant  in  possession"  embrace  the  judg- 
ment debtor,  as  well  as  his  lessee.  Harris  v. 
Reynolds,  13  Cal.  514;  73  Am.  Dec.  600.  As  to 
who  is  a  tenant  in  possession,  see  also  Shores  v. 
Scott  River  Co.,  21  Cal.  135;  Knight  v.  Truett, 
18  Cal.  113.  Even  during  the  period  which 
elapses  between  the  sale  and  the  expiration  of 
the  time  for  redemption,  the  statute  regards  the 
purchaser  as  the  owner  in  equity,  and  gives  him 
the  rents  and  profits,  or  the  value  of  the  use  and 
occupation — in  short,  the  entire  beneficial  inter- 
est in  the  property,  except  the  actual  possession. 
Page  V.  Rogers,  31  Cal.  293;  see  also  Guy  v. 
Middleton,  5  Cal.  392;  Henry  v.  Everts,  30  Cal. 
425.  TThe  buyer  at  a  judicial  sale  on  a  judgment 
recovered  for  taxes,  is  not  entitled  to  receive  the 
rents  and  profits  during  the  period  allowed  for 
redemption.  Mayo  v.  Woods,  31  Cal.  269.  The 
mortgagor  in  possession  is  not,  until  a  sale  is 
made  under  the  decree  of  foreclosure,  accountable 
for  rents  or  use  and  occupation,  but  he  may  be 
restrained  from  the  commission  of  waste.  Whit- 
ney V.  Allen,  21  Cal.  233. 


§  708.  If  purchaser  of  real  property  be  evicted  for  irregularities  in  sale, 
-what  he  may  recover,  and  from  whom.  When  judgment  to  be  revived. 
Petition  for  the  purpose,  how  and  by  whom  made.  If  the  purchaser  of  real 
property  sold  on  execution,  or  his  successor  in  interest,  be  evicted  there- 
from in  consequence  of  irregularities  in  the  proceedings  concerning  the 
sale,  or  of  the  reversal  or  discharge  of  the  judgment,  he  may  recover  the 
price  paid,  with  interest,  from  the  judgment  creditor.  If  the  purchaser  of 
property  at  sheriff's  sale,  or  his  successor  in  interest,  fail  to  recover  pos- 
se.ssion  in  consequence  of  irriegularity  in  the  proceedings  concerning  the 
sale,  or  because  the  property  sold  was  not  subject  to  execution  and  sale, 
the  court  having  jurisdiction  thereof  must,  after  notice  and  on  motion  of 
such  party  in  interest,  or  his  attorney,  revive  the  original  judgment  in 
the  name  of  the  petitioner,  for  the  amount  paid  by  such  purchaser  at  the 
sale,  with  interest  thereon  from  the  time  of  payment  at  the  same  rate  that 
the  original  judgment  bore;  and  the  judgment  so  revived  has  the  same 
force  and  effect  as  would  an  original  judgment  of  the  date  of  the  revival, 
and  no  more. 


Warranty,  what  only  implied  on  judicial  sale. 
See  Civ.  Code,  §  1777. 

Legislation  g  708.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  237,  as  amended  by 
Stats.  1860,  p.  303,  which  read  the  same  as  at 
present,  down  to  and  including  the  words  "juris- 
diction thereof,"  after  which  the  Practice  Act  sec- 
tion read:  "shall,  on  petition  of  such  party  in 
interest  or  his  attorney,  revive  the  original  judg 
ment  for  the  amount  paid  by  such  purchaser  a 
the  sale,  with  interest  thereon  from  the  time  o 
payment,  at  the  same  rate  that  the  original  judg 
ment  bore;  and  when  .so  revived  the  said  judg 
ment  shall  have  the  same  effect  as  an  origina 
judgment  of  the  said  court  of  that  date,  and  bear 
ing  interest  as  aforesaid,  and  any  other  or  after 
acquired  property,  rents,  issues,  or  profits,  of  the 
said  debtor,  shall  be  liable  to  levy  and  sale  under 
execution  in  satisfaction  of  such  debt;  provided, 
that  no  property  of  such  debtor  sold  bona  fide  be- 
fore the  filing  of  such  petition,  shall  be  subject 
to  the  lien  of  said  judgment;  and,  provided  fur- 
ther, that  notice  of  the  filing  of  such  petition 
shall  be  made  by  filing  a  notice  thereof  in  the 
recorder's  office  of  the  county  where  such  prop- 
erty may  be  situated;  and  that  said  judgment 
shall  be  revived  in  the  name  of  the  original  plain- 


tiff  or   plaintiffs,   for   the   use   of   said  petitioner, 
the  party  in  interest." 

Construction  of  section.  This  section, 
being  remedial  in  its  character,  is  to  be 
liberally  construed.  Cross  v.  Zane,  47  Cal. 
602;  Hitchcock  v.  Caruthers.  100  Cal.  100; 
34  Pac.  627;  Merguire  v.  O'Donnell,  139 
Cal.  6;  96  Am.  St.  Rep.  91;  72  Pac.  337. 
The  object  of  this  section  is,  not  to  disturb 
the  rule  of  the  common  law  in  relation  to 
the  validity  of  executions  or  judicial 
sales,  but  to  guard  against  its  mischievous 
consequenc^es  in  certain  cases,  by  affording 
a  remedy  which  the  common  law  does  not; 
it  does  not  deal  with  the  question  as  to 
when  an  execution  or  a  sale  shall  be 
deemed  valid,  but  leaves  it  as  it  was  be- 
fore, and  merely  provides  that  when,  for 
any  of  the  reasons  given  by  the  common 
law,  a  sale  shall  be  declared  void,  the.  pur- 


847 


REVIVAL    OP    JUDGMENT CONTRIBUTION,    WHO    MAY    COMPEL. 


§709 


chaser  shall  not  be  left,  as  at  common  law, 
without  a  remedy.  Hunt  v.  Loucka,  38  Cal. 
372;  99  Am.  Dec.  404.  There  is  nothing  to 
indicate  that  the  legislature  iuten<ied  to 
control  the  effect  or  operation  of  this  sec- 
tion, or  the  remedy  under  it,  by  §  336, 
ante;  the  only  statute  of  limitations  ap- 
plicable to  the  remedy  under  this  section 
is  §  343,  ante,  providing  that  "an  action 
for  relief  not  hereinbefore  provided  for 
must  be  commenced  within  four  years 
after  the  cause  of  action  shall  have  ac- 
crued"; this  section  was  intended  to  give 
a  remedy,  by  petition,  in  an  action  which 
has  culminated  in  a  Judgment  sought  to  be 
revived,  and  the  remedy  intended  to  be 
given  under  it  is  as  broad  as  that  in  the 
corresponding  action  in  equity.  Mcrguire 
V.  O'Donnell,  139  Cal.  6;  96  Am.  St.  Rep. 
91;  72  Pac.  337;  Doehla  v.  Phillips,  151 
Cal.  488;  91  Pac.  330. 

Action  by  purchaser.  Where  the  home- 
stead of  a  defendant  is  subjected  to  exe- 
cution sale,  but  he  succeeds,  on  appeal,  in 
overthrowing  the  sale,  the  purchaser  at 
that  sale  can  recover  from  the  judgment 
creditor  the  full  amount  paid.  Turner  v. 
Markham,  152  Cal.  246;  92  Pac.  485. 

Revival  of  judgment.  Though  the  stat- 
ute does  not  expressly  require  notice,  the 
court  may,  and  generally  should,  require 
notice  to  the  parties  in  possession,  before 
reviving  an  old  judgment.  Hyde  v.  Boyle, 
93  Cal.  1;  29  Pac.  247.  Where  the  prop- 
erty sold  under  execution  is  not  the  prop- 
erty of  the  defendant  therein,  but  wholly 
that  of  a  stranger,  there  is  a  sale  of  prop- 
erty not  subject  to  execution,  within  the 
meaning  of  the  provision  that  the  original 
judgment  may  be  revived  when  "the 
property  sold  was  not  subject  to  execu- 
tion and  sale."  Cross  v.  Zane,  47  Cal.  602; 
and  see  Hitchcock  v.  Caruthers,  100  Cal. 
100;  34  Pac.  627.  Although  the  original 
judgment  may  be  entered  against  the  sure- 
ties under  their  undertaking  to  stay  exe- 
cution without  notice  to  them,  yet  the 
judgment  against  them  cannot  be  revived 
upon  revival  of  the  judgment  against  the 
original  defendant,  without  notice  to  the 
sureties  and  an  opportunity  to  them  to  be 
heard.  Hitchcock  v.  Caruthers,  100  Cal. 
100;  34  Pac.  627.  The  revival  of  the  judg- 
ment ini  favor  of  the  purchaser,  under  this 
section,  being  conditioned  upon  the  failure 

§709.  Party  who  pays  more  than  his  share  may  compel  contribution. 
When  property,  liable  to  an  execution  against  several  persons,  is  sold 
thereon,  and  more  than  a  due  proportion  of  the  judsi:ment  is  satisfied  out 
of  the  proceeds  of  the  sale  of  the  property  of  one  of  them,  or  one  of  them 
pays,  without  a  sale,  more  than  his  proportion,  he  may  compel  contribution 
from  the  others;  and  when  a  judgment  is  against  several,  and  is  upon  an 
obligation  of  one  of  them,  as  security  for  another,  and  the  surety  pays  the 
amount,  or  any  part  thereof,  either  by  sale  of  his  property  or  before  sale, 
he  may  compel  repayment  from  the  principal.     In  such   case,  the  person 


"to  recover  possession  in  consequence  of 
irregularity  in  the  proceedings  concerning 
the  sale,"  the  statute  of  limitations,  under 
§  343,  ante,  which  is  the  only  statute  ap- 
plicable to  the  case,  does  not  begin  to  run 
until  such  failure;  and  where  the  motion 
to  revive  the  judgment  was  made  within 
a  few  days  after  the  filing  of  the  remit- 
titur on  appeal  in  an  action  to  quiet  title, 
in  which  the  execution  ami  sale  were  ad- 
judged void,  it  cannot  be  barred  by  the 
statute.  Merguire  v.  O'OonncIl,  139  Cal. 
6;  96  Am.  St.  Kep.  91  ;  72  I'a,-.  :!.X7. 

Action  by  judgment  debtor  for  damages. 
Money  collected  on  a  judgment  subse- 
quently reversed  may  be  recovered  in  an 
action  against  the  real  parties  jilaintiff. 
where  the  suit  had  been  prosecuted  by  the 
assignee  of  a  chose  in  action  in  the  name 
of  the  assignor.  Reynolds  v.  Hosmer,  45 
Cal.  616.  An  action  is  properly  brought 
against  the  assignee  of  an  erroneous  judg- 
ment, who  gives  the  plaintiff's  property 
to  be  sold  thereunder,  and  thereby  pro- 
duced the  injury  of  which  the  plaintiff 
complained.  Reynolds  v.  Hosmer,  45  Cal. 
616. 

Jurisdiction  of  court.  The  court  has 
jurisdiction  of  the  subject-matter  of  a  mo- 
tion for  an  order  to  issue  execution  on  the 
judgment,  and  incidentally  to  determine 
whether  or  not  the  apparent  satisfaction 
of  the  judgment  is  void.  McAuliflfe  v. 
Coughlin,  105  Cal.  268;  38  Pac.  730.  An 
original  satisfaction,  entered  inadver- 
tently, or  under  such  circumstances  as  re- 
quires it  to  be  set  aside,  may  be  set 
aside  by  the  court,  and  an  order  made, 
designating  the  amount  for  which  the  judg- 
ment should  be  permitted  to  stand.  Hitch- 
cock V.  Caruthers,  100  Cal.  100;  34  Pac 
627. 

Effect  of  reversal  of  judgment  authorizing  sale 
on  title  to  land  purchased  at  judicial  sale  by 
attorney  of  party  to  proceeding.  .See  note  14 
Ann.  Cas.  185. 

Amount  of  restitution  where  property  is  sold 
under  judgment  subsequently  reversed.  See  note 
15  Ann.  Cas.  672. 

Relief  of  purchaser  on  annulling  sale.  See 
note  69  L.  R.  A.  3;j. 

CODE   COMMISSIONERS'   NOTE.      Generally. 

Hunt  V.  Loucks,  :(8  Cal.  376;  99  Am.  Dec.  404; 
Boggs  V.  Kowler,  16  Cal.  565;  76  Am.  Dec.  561; 
see  also  Hurtou  v.  Lies,  21  Cal.  90;  Sargent  v. 
Strum,  23  Cal.  361;  83  Am.  Dec.  118;  Fowler  v. 
Harbin,  23  Cal.  630;  Branham  v.  Mavor  and 
Common  Council,  24  Cal.  607. 


§709 


EXECUTION. 


848 


so  paying  or  contributing  is  entitled  to  the  benefit  of  the  judgment,  to 
enforce  contribution  or  repayment,  if,  within  ten  days  after  his  payment, 
he  file  with  the  clerk  of  the  court  where  the  judgment  was  rendered,  notice 
of  his  payment  and  claim  to  contribution  or  repayment.  Upon  a  filing  of 
such  notice,  the  clerk  must  make  an  entry  thereof  in  the  margin  of  the 
docket. 


Subrogation  of  surety  on  appeal  bond.  See 
post,  §  1059. 

Legislation  §  709.      Enacted  March  11,   1873. 

Construction  of  section.  A  proceeding 
under  this  section  being  statutory,  the 
course  pointed  out  therein  must  be  strictly 
pursued.  Davis  v.  Heimbach,  75  Cal.  261; 
17  Pac.  199;  and  see  Hansen  v.  Martin,  63 
Cal.  282.  The  first  sentence  of  this  sec- 
tion lays  down  only  fundamental  rules  as 
to  the  rights  of  sureties  and  joint  judg- 
ment debtors  to  compel  contribution;  the 
second  sentence  contemplates  giving  to 
sureties  or  joint  judgment  debtors  the 
right  to  an  execution  in  the  original  pro- 
ceedings; the  section  was,  no  doubt,  en- 
acted for  the  benefit  of  sureties  and  joint 
judgment  debtors,  in  order  to  enable  them, 
without  bringing  an  action,  to  use  the 
judgment  and  the  writs  of  the  court  for 
the  purpose  of  compelling,  in  the  case  of 
sureties,  repayment  from  their  principal 
or  contribution  from  co-sureties,  and  in 
the  case  of  joint  judgment  debtors,  con- 
tribution from  their  co-debtors.  Williams 
V.  Eiehl,  127  Cal.  365;  78  Am.  St.  Rep.  60; 
59  Pac.  762.  The  legislature,  in  enacting 
this  section,  did  not  have  in  mind  a  case 
where  the  parties  paying  the  judgment 
had  procured  a  written  assignment  of  it: 
assignees  have  a  remedy  independently  of 
this  section,  and  could  enforce  their  judg- 
ment if  it  had  never  been  enacted.  Wil- 
liams V.  Riehl,  127  Cal.  365;  78  Am.  St. 
Rep.  60;  59  Pac.  762. 

Effect  of  payment  of  judgment  by  one 
joint  debtor.  The  mere  payment  of  a 
judgment  by  one  joint  debtor  does  not 
operate  as  an  accord  and  satisfaction  of 
the  judgment  as  to  the  other  joint  judg- 
ment debtors,  unless  it  plainly  appears 
that  the  payment  was  intended  to  have 
such  effect.  Williams  v.  Riehl,  127  Cal. 
365;  78  Am.  St.  Rep.  60;  59  Pac.  762;  and 
see  Coffee  v.  Tevis,  17  Cal.  239.  The  pay- 
ment of  a  judgment  against  co-defendants, 
by  one  of  them,  extinguishes  the  judgment, 
where  no  proceedings  specified  in  this  sec- 
tion have  been  taken.  National  Bank  v. 
Los  Angeles  Iron  etc.  Co.,  2  Cal.  App.  659; 
84  Pac.  466. 

Who  may  compel  contribution.  Where 
the  plaintiff  paid  a  deficiency  judgment, 
entered  against  himself  and  the  defendant 
jointly,  in  order  to  prevent  the  sale  of  his 
property  on  execution,  but  on  which  judg- 
ment the  defendant  was  primarily'  liable, 
such  payment  is  not  voluntary,  and  the 
plaintiff  is  entitled  to  maintain  an  action.' 


against  the  defendant  for  the  amount. 
Treat  v.  Young,  135  Cal.  91;  67  Pac.  7; 
and  see  Williams  v.  Riehl,  127  Cal.  369; 
78  Am.  St.  Rep.  60;  59  Pac.  762.  Where 
one  person  owes  another  money  on  a  prom- 
issory note,  and  a  person,  for  his  own  pro- 
tection, is  compelled  to  pay  the  debt,  he  is 
entitled  to  be  subrogated  to  the  rights  of 
the  creditor,  to  enforce  payment  of  the 
note.  Finnell  v.  Finnell,  159  Cal.  535;  114 
Pac.  820.  Sureties,  who  are  compelled  to 
pay  a  debt  of  their  principal,  have  a  legal 
demand  for  reimbursement,  which  they 
may  enforce  against  him  by  personal  ac- 
tion if  he  is  alive,  or  against  his  estate 
if  he  is  dead;  but,  in  either  case,  reim- 
bursement can  be  claimed  only  for  what 
has  been  expended.  Estate  of  Hill,  67  Cal. 
238;  7  Pac.  664.  A  co-surety  or  a  joint 
judgment  debtor  has  the  right,  the  moment 
he  pays  the  debt  of  his  principal,  to  re- 
cover his  proportionate  share  from  his 
co-surety  or  joint  debtor;  and  the  obliga- 
tion of  the  co-surety  to  pay  is  as  binding 
as  if  it  were  created  by  promissory  note 
or  contract.  Williams  v.  Riehl,  127  Cal. 
365;  78  Am.  St.  Rep.  60;  59  Pac.  762. 
Where  a  surety,  by  his  contract,  imposes 
the  burden  of  the  whole  debt  upon  his  own 
land,  in  case  the  security  of  the  principal 
debtor  fails,  all  that  he  may  justly  ask,  in 
case  he  satisfies  the  obligation  of  the  prin- 
cipal, is,  that  he  may  be  subrogated  to 
all  the  rights  and  remedies  of  the  judg- 
ment creditor.  Bechtel  v.  Wier,  152  Cal. 
443;  15  L.  R.  A.  (N.  S.)  549;  93  Pac.  75. 
The  rule  that  there  is  no  right  of  con- 
tribution between  joint  tort-feasors,  is  not 
changed  by  this  section.  Forsythe  v.  Los 
Angeles  Ry.  Co.,  149  Cal.  569;  87  Pac.  24; 
Dow  V.  Sunset  Telephone  etc.  Co.,  162  Cal. 
136;  121  Pac.  379.  This  section  simply 
announces  a  rule  of  procedure,  and  pro- 
vides a  convenient  method  of  enforcing 
contribution  by  a  judgment  debtor,  who 
has  paid  a  judgment,  as  against  a  co- 
defendant  liable  for  a  proi:iortion  of  the 
debt.  Dow  v.  Sunset  Telephone  etc.  Co., 
162  Cal.  136;  121  Pac.  379. 

Notice,  what  constitutes.  Some  notice 
to  the  parties  interested  is  necessary,  the 
period  and  the  manner  of  giving  which  are 
provided  elsewhere  in  this  code;  and  al- 
though the  statute  does  not  specify  the 
person  to  whom  notice  is  to  be  given,  or 
its  period,  or  the  manner  in  which  it  is 
to  be  given,  yet  the  natural  meaning  of 
the  word  "notice,"  in  the  phrase,  "file  with 
the  clerk  of  the  court  where  the  judgment 


849 


MONEYS  DUE  I'KOM    JUDGMENT   DEBTOR — COLLECTION — PROCEDURE. 


710 


be  served  on  such  party  within  ten  days 
after  the  movinfj  party  i)ays  more  than  his 
proportion  of  the  Jud^mLMit.  Clark  v. 
Austin,  !l(j  Cal.  2.s;{;  31  Pac.  2'J3. 

Docket  entry  by  clerk.  The  only  jmr- 
pose  of  the  sei-tiou  in  proviilin;^  for  the 
lilinj;  of  the  notice  is  to  authorize  and  to 
enable  the  clerk  to  maiie  the  proper  entry 
in  the  margin  of  the  docket:  without  sueii 
notice,  the  cleri<  would  have  neither  the 
authority  nor  the  ability  to  make  the 
proi)er  docket  entry.  Clark  v.  Austin,  96 
Cal.  283;  31  Pac.  293". 

CODE  COMMISSIONEES'  NOTE.  K  ansae 
Code  Civ.  I'loc,  §  -ISO. 


was  rendered,  notice  of  his  payment  and 
claim  to  contribution  or  reiiaynieiit,"  is  a 
notice  to  some  one,  and  if  the  person  is 
not  indicated,  the  plain  inference  is,  that 
the  party  intended  is  the  person  inter- 
ested,— the  party  to  be  proceeded  against. 
Davis  V.  lleimbach,  75  Cal.  2G1;  17  Pae. 
199.  The  notice  of  motion  for  execution 
upon  a  judgment,  for  the  purpose  of  com- 
j)elling  contribution  or  repayment  under 
this  section,  should  be  served  upon  the 
party  against  whom  such  motion  is  di- 
rected; but  it  is  not  necessary  that  the 
notice  filed  with  the  clerk,  to  claim  the 
right  to  contribution  and  repayment,  shall 

§  710.     Collection   of  moneys   due   from   judgment   debtor.     Procedure. 

The  duly  authenticated  transcript  of  a  judgment,  for  money,  against  a  de- 
fendant, rendered  by  any  court  of  this  state  may  be  filed  with  the  con- 
troller of  the  state  of  California  or  the  auditor  of  any  county,  city  and 
county,  city,  or  other  municipal  or  public  corporation,  from  which  money  is 
owing  to  the  judgment  debtor  in  such  action  (and  in  case  there  be  no 
auditor  then  with  the  official  whose  duty  corresponds  to  that  of  auditor), 
whereupon  it  shall  be  the  duty  of  any  such  official,  or  of  such  public  officer 
with  whom  such  transcript  shall  have  been  filed,  to  draw  his  warrant  in 
favor  of  or  to  pay  into  the  court  from  the  docket  of  Avhich  the  transcript 
was  taken,  so  much  of  the  money,  if  sufficient  there  be.  over  which  such 
state  of  California,  county,  city  and  county,  city,  or  other  municipal  or 
public  corporation  of  which  he  is  an  official,  or  over  which  said  public 
officer  has  control  and  custody  and  which  belongs  to  or  is  owing  to  the 
judgment  debtor  in  the  cause  designated  in  said  transcript  as  will  cancel 
said  judgment;  the  money  so  paid  into  court  shall  be  a  discharge  pro  tanto 
of  any  amount  so  due  or  owing  to  such  judgment  debtor.  For  filing  such 
a  transcript  any  such  official  or  public  officer  may  charge  a  fee  of  fifty 
cents.  Upon  the  receipt  by  any  court  of  money  under  the  provisions  of 
this  act  so  much  thereof  as  is  not  exempt  from  execution  shall  be  paid  to 
the  judgment  creditor,  the  balance  to  the  judgment  debtor.  Such  tran- 
script when  so  filed,  shall  be  accompanied  by  an  affidavit  on  behalf  of  the 
person  in  whose  interest  the  same  is  filed,  stating  the  exact  amount  at  the 
time  due  on  such  judgment,  and  that  such  person  desires  to  avail  himself 
of  the  provisions  of  this  section. 

policy  require  that  public  corporations  and 
public  oflicers  and  employees  should  not  be 
held  subject  to  the  ordinary  provisions  and 
processes  of  law  for  the  garnishment  of 
debts  and  claims  due  or  owing,  sufficientlr 
distinguishes  the  classes  of  persons  and 
assets  to  which  this  section  relates,  to  jus- 
tify the  legislature  in  making  special  regu- 
lations concerning  such  persons,  and  the 
mode  of  reaching  such  assets;  and  the  fact 
that  the  provisions  of  this  section  differ 
somewhat  from  the  ordinary  processes  of 
attachment  and  execution  does  not  destroy 
its  character  as  a  general  law.  Ruperieh 
V.  Baehr,  142  Cal.  190;  75  Pac.  782.  A 
construction  of  this  section,  which  would 
require   the  transcript  of  judgment  to   bfr 


Legislation  8  710.  Added  by  Stats.  1903, 
p.  362;  approved  March  21.  1903.  There  are 
two  sections  numbered  710,  both  passed  at  the 
session  of  1903.  This  section  logically  belongs 
at  the  end  of  the  chapter,  as  those  following  it 
(§§  710-713  V^  )  were  passed  in  one  act  (Stats. 
1903,  c.  XCII,  p.  101)  and  relate  to  the  same 
subject,  which  is  different  from  this  section. 

Scope  of  section.  This  section  is  not  un- 
constitutional as  being  s])ecial  legislation, 
or  as  not  being  uniform  in  its  operation. 
Lawson  v.  Lawson,  158  Cal.  446;  111  Pac. 
354.  It  applies  generally  to  all  public  cor- 
porations; and  the  fact  that  there  has  here- 
tofore been  no  means  by  which  moneys  due 
from  the  state,  or  from  its  public  corpora- 
tions, could  be  reached  and  applied  upon 
the  debts  of  the  persons  to  whom  they  are 
due,  and  that  considerations  of  public 
1  Fair. — 54 


§§710,710i/o 


EXECUTION. 


850 


filed  after  audit,  and  before  delivery  of 
the  audited  claim  to  the  person  entitled 
thereto,  would  practically  nullify  the  rem- 
edy sought  to  be  granted  judgment  credi- 
tors thereby.  Payne  v.  Baehr,  153  Cal.  441; 
95  Pac.  895.  The  purpose  of  this  section 
is  to  afford  means  whereby  money  due 
from  one  municipal  corporation  to  the 
debtor  of  another  may  be  reached  by  his 
creditor,  and  is  to  be  liberally  construed. 
Ott  Hardware  Co.  v.  Davis,  165  Cal.  795; 
134  Pac.  973. 

Includes  salaries  and  wages  of  public 
officials  and  employees.  The  salaries  and 
wages  of  public  oflticers  and  employees  are 
within  the  meaning  of  this  section,  where 
it  refers  to  moneys  or  amounts  owing  to 
or  which  belong  to  judgment  debtors;  and 
it  necessarily  follows  that  such  officers  and 
employees  are  subject  to  the  garnishment 
authorized.  Euperich  v.  Baehr,  142  Cal. 
190;  75  Pac.  782.  This  section  is  appli- 
cable to  the  salaries  of  all  such  public 
officers  and  employees  as  to  whom  its  ap- 
plication is  not  inhibited  by  reason  of 
some  provision  of  the  constitution,  and  is 
applicable  to  the  salaries  or  fees  of  jus- 
tices of  the  peace.  Lawson  v.  Lawson,  158 
Cal.  446;  111  Pac.  354. 

Transcript  of  judgment,  not  abstract,  re- 
quired. The  abstract  of  a  judgment,  pre- 
pared in  accordance  with  l,he  provisions  of 
§§  897,  900,  post,  and  filed  with  the  auditor 
of  the  county,  is  not  sufficient  to  secure 
the  benefits  of  this  section,  which  recjuires 
a  transcript  or  copy  of  the  judgment  to 
be  filed.  Erkson  v.  Parker,  3  Cal.  App.  98; 
84  Pac.  437. 

Duty  and  liability  of  auditor.  The  au- 
ditor is  liable  in  damages  for  a  failure  to 
perform  his  duty,  and  it  is  not  essential  to 
a  cause  of  action  against  him  that  the 
plaintiff  should  have  made  any  other  de- 
mand than  that  embraced  in  the  filing  of 
the  authenticated  transcript  of  judgment 
and  affidavit  provided  for  in  this  section. 
Payne  v.  Baehr,  153  Cal.  441;  95  Pac.  895; 
and  see  Mock  v.  Santa  Rosa,  126  Cal.  330; 
58  Pac.  826.  It  is  the  official  duty  'of  the 
auditor  to  draw  his  warrant,  for  the 
benefit  of  a  judgment  creditor  of  a  person 

§  710.  Claimant  of  property  may  give  undertaking  and  release  prop- 
erty. Where  property  levied  upon  under  execution  to  satisfy  a  judgment 
for  the  payment  of  money  is  claimed,  in  whole  or  in  part,  by  a  person,  cor- 
poration, partnership  or  association,  other  than  the  judgment  debtor,  such 
claimant  may  give  an  undertaking  as  herein  provided,  which  undertaking 
shall  release  the  property  in  the  undertaking  described  from  the  lien  and 
levy  of  such  execution. 

Legislation  «   710.       Added    by    Stats.    1903,        LeRislation  §  710. 
p.    101;     approved    March    9,     1903.     See    supra, 

§  710^.     Claim  of  property.    Undertaking,   amount  and   conditions   of. 

Such  undertaking,  with  two  sureties,  shall  be  executed  by  the  person,  cor- 
poration, partnership  or  association,  claiming  in  whole  or  in  part,  the  prop- 


to  whom  the  municipality  owes  money, 
when  the  conditions  specified  in  this  sec- 
tion have  been  complied  with.  Payne  v. 
Baehr,  153  Cal.  441;  95  Pac.  895. 

Mandate  to  auditor.  Mandamus  lies,  in 
a  proper  case,  to  compel  the  auditor  to 
draw  his  warrant,  under  this  section. 
"Wilkes  V.  Sievers,  8  Cal.  App.  659;  97  Pac. 
677.  A  mandate  cannot  be  issued  requir- 
ing an  auditor  to  audit  and  allow  a  demand 
in  favor  of  an  employee  of  the  city,  against 
whom  garnishment  provided  for  in  this 
section  has  been  servetl,  where  no  demand 
was  made  except  for  the  entire  sum,  as 
the  auditor  is  entitled  to  proper  demand 
before  he  becomes  subject  to  a  suit  in 
mandamus.  Euperich  v.  Baehr,  142  Cal. 
190;  75  Pac.  782.  Mandamus  lies  to  com- 
pel an  auditor  to  draw  his  warrant  in 
favor  of  the  assignee  of  a  claim  as  to  an 
amount  assigned  prior  to  the  filing  of  the 
transcript,  and  in  favor  of  the  court  as  to 
any  amount  involved  in  case  the  transcript 
is  filed  before  the  assignment.  First  Na- 
tional Bank  v.  Tyler,  21  Cal.  App.  791;  132 
Pac.  1053. 

When  jurisdiction  of  court  attaches  to 
money.  After  the  salary  of  a  public  offi- 
cer has  been  subjected  to  garnishment 
under  this  section,  the  court  in  which  judg- 
ment was  rendered  is  without  power  to 
make  any  order  for  the  disposition  of  the 
money  levied  upon,  until  it  has  been  paid 
into  court,  or  the  auditor's  warrant  there- 
for, drawn  in  favor  of  the  court,  has  been 
delivered  to  the  court.  Lawson  v.  Lawson, 
15S  Cal.  451;  111  Pac.  354. 

Assignment  of  unearned  salary  is  void. 
An  assignment  of  the  unearned  salary  of  a 
public  officer  is  against  public  policy  and 
void.  Wilkes  v.  Sievers,  8  Cal.  App.  659; 
97  Pac.  677. 

Approval  of  creditor's  demand  unneces- 
sary. It  is  not  necessary,  under  this  sec- 
tion, that  the  judgment  creditor's  demand 
should  have  been  approved  by  the  city 
officers.  Pavne  v.  Baehr,  153  Cal.  441;  95 
Pac.  895. 

Right  of  officer  to  demand  indemnity  for  en- 
forcing execution.    See  note  16  Ann.  Cas.  1045. 


851  CLAIM  OF  PROPERTY — UNDERTAKING,  OBJECTIONS  TO,  ETC.       §§  711-712 

erty  upon  which  execution  is  levied  in  double  the  estimated  value  of  the 
property  claimed  by  the  person,  corporation,  partnership  or  association,  pro- 
vided, in  no  case  need  such  undertakinj?  be  for  a  greater  sum  than  double  the 
amount  for  which  the  execution  is  levied;  and  where  the  estimated  value 
of  the  property  so  claimed  by  the  person,  corporation,  partnership  or  asso- 
ciation is  less  than  the  sum  for  which  such  attachment  is  levied,  such  esti- 
mated value  shall  be  stated  in  the  undertakinu:,  and  said  undertaking  shall 
be  conditioned  that  if  the  property  claimed  by  the  person,  corporation, 
partnership  or  association  is  finally  adjudged  to  be  the  property  of  the 
judgment  debtor,  said  person,  corporation,  partnership  or  association  will 
pay  of  said  judgment  upon  which  execution  has  issued  a  sum  equal  to  the 
value,  as  estimated  in  said  undertaking,  of  said  property  claimed  ])y  said 
person,  corporation,  partnership  or  association,  and  said  property  claimed 
shall  be  described  in  said  undertaking. 

Legislation  8  710 1/2.       Added   bv    Stats.    1903, 
p.  102. 

§711,  Claim  of  property.  Undertaking",  filing  and  serving.  Said 
undertaking  shall  be  filed  in  the  action  in  which  said  execution  issued,  and 
a  copy  thereof  served  upon  the  judgment  creditor  or  his  attorney  in  said 
action. 

Legislation  §   711.       Added    by    Stats.    1903, 
p.  102. 

§  711|.  Claim  of  property.  Undertaking,  objections  to.  Within  ten 
days  after  the  service  of  the  copy  of  undertaking,  the  judgment  creditor 
may  object  to  such  undertaking  on  the  ground  of  inability  of  the  sureties, 
or  either  of  them,  to  pay  the  sum  for  which  they  become  bound  in  said 
undertaking,  and  upon  the  ground  that  the  estimated  value  of  property 
therein  is  less  than  the  market  value  of  the  property  claimed.  Such  objec- 
tion to  the  undertaking  shall  be  made  in  writing,  specifying  the  ground  or 
grounds  of  objection,  and  if  the  objection  is  made  to  the  undertaking  that 
the  estimated  value  therein  is  less  than  the  market  value  of  the  property 
claimed.  Such  objection  shall  specify  the  judgment  creditor's  estimate  of 
the  market  value  of  the  property  claimed.  Such  written  objection  shall  be 
served  upon  the  person,  partnership,  corporation  or  association  giving  such 
undertaking  and  claiming  the  property  therein  described. 

Legislation  §  7111/2.       Added   by   Stats.    1903, 
p.  102. 

§  712.  Claim  of  property.  Justification,  approval  and  disapproval. 
When  the  sureties,  or  either  of  them,  are  objected  to,  the  surety  or  sure- 
ties so  objected  to  shall  justify  before  the  court  out  of  which  such  execu- 
tion issued,  upon  ten  days'  notice  of  the  time  when  they  will  so  justify 
being  given  to  the  judgment  debtor  or  his  attorney.  Upon  the  heariuii 
and  examination  into  the  sufficiency  of  a  surety,  witnesses  may  be  required 
to  attend  and  evidence  may  be  procured  and  introduced  in  the  same  man- 
ner as  in  trial  of  civil  cases.  Upon  such  hearing  and  examination,  the 
court  shall  make  its  order,  in  writing,  approving  or  disapproving  the  suffi- 
ciency of  the  surety  or  sureties  on  such  undertaking.  In  case  the  court 
disapproves  of  the  surety  or  sureties  on  any  undertaking,  a  new  under- 
taking may  be  filed  and  served,  and  to  any  undertaking  given  under  the 
provisions  of  this  act  the  same  objection  to  the  sureties  may  be  made,  and 


§§  712^-714  PROCEEDINGS   SUPPLEMENTAL   TO   EXECUTION.  852' 

the  same  proceedings  had  as  in  case  of  the   first  undertaking  filed  and 
served. 

Legislation  §  712.      Added    by     Stats.     1903, 
p.  102. 

§  712^.  Claim  of  property.  Undertaking,  estimate  of  value,  and  new- 
undertaking".  When  objection  is  made  to  the  undertaking  upon  the  ground 
that  the  estimated  value  of  the  property  claimed,  as  stated  in  the  under- 
taking, is  less  than  the  market  value  of  the  property  claimed,  the  person,, 
corporation,  partnership  or  association  may  accept  the  estimated  value 
stated  by  the  judgment  creditor  in  said  objection,  and  a  new  undertaking 
may  be  at  once  filed  with  the  judgment  creditor's  estimate  stated  therein 
as  the  estimated  value,  and  no  objection  shall  thereafter  be  made  upon  that 
ground;  if  the  judgment  creditor's  estimate  of  the  market  value  is  not 
accepted,  the  person,  corporation,  partnership  or  association  giving  the 
undertaking  shall  move  the  court  in  which  the  execution  issued,  upon  ten 
days'  notice  to  the  judgment  creditor,  to  estimate  the  market  value  of  the 
property  claimed  and  described  in  the  undertaking,  and  upon  the  hearing 
of  such  motion  witnesses  may  be  required  to  attend  and  testify,  and  evi- 
dence be  produced  in  the  same  manner  as  in  the  trial  of  civil  actions.  Upon 
the  hearing  of  such  motion,  the  court  shall  estimate  the  market  value  of 
the  property  described  in  the  undertaking,  and  if  the  estimated  value  made 
by  the  court  exceeds  the  estimated  value  as  stated  in  the  undertaking,  a 
new  undertaking  shall  be  filed  and  served,  with  the  market  value  deter- 
mined by  the  court  stated  therein  as  the  estimated  value. 

Legislation  §  7121/2.      Added   by    Stats.    1903, 
p.  108. 

§  713.     Claim  of  property.     Undertaking,  justification  of  sureties.     The 

sureties  shall  justify  on  the  undertaking  as  required  by  section  one  thou- 
sand and  fifty-seven  of  the  Code  of  Civil  Procedure. 

Legislation  §  713.       Added    by    Stats.    1903, 

p.  103. 

§  713|.     Claim  of  property.     Undertaking,  when  becomes  effectual.     The 

undertaking  shall  become  effective  for  the  purpose  herein  specified  ten 
days  after  service  of  copy  thereof  on  the  judgment  debtor,  unless  objec- 
tion to  such  undertaking  is  made  as  herein  provided,  and  in  case  objection 
is  made  to  the  undertaking  filed  and  served,  then  the  undertaking  shall 
become  effective  for  such  purposes  when  an  undertaking  is  given  as  herein 
provided. 

Legislation  §7131/2.     Added   by    Stats.    1903, 
p.  103. 

CHAPTER  II. 
PROCEEDINGS  SUPPLEMENTAL  TO  EXECUTION. 

§  714.     Debtor  required  to  answer  concerning  his  debtor,     or    of    those    having    property 

«^,=  property,  when.  belonging  to  him. 

S  715.     Proceedings    to   compel   debtor   to   appear.  §  718.     Witnesses  required  to  testify. 

In    what     cases    he    may     be    arrested.  §719.     Judge   mav    order  property   to   be   applied 

\Vhat  bail  may  be  given.  on  execution. 

§  716.     Any    debtor   of   the   judgment   debtor   may  §  720.     Proceedings  upon  claim  of  another  party.. 

pay  the  latter's  creditor.  §721.     Disobedience  of  orders,  how  punished. 
§  717.     Examination     of      debtors      of     judgment 

§  714.     Debtor  required  to  answer  concerning  his  property,  when.     When 

an  execution  against  property  of  the  judgment  debtor,  or  of  any  one  of: 


353 


DEBTOR  MUST  ANSWER  AS  TO  IIIS  PROPERTY  WHEN. 


§714 


(1) 
and 


several  debtors  in  the  same  judgment,  issued  to  the  sheriff  of  the  county 
where  he  resides,  or  if  he  does  not  reside  in  this  state,  to  the  sheriff  of  the. 
county  wliere  the  jud<2;ment  roll  is  filed,  is  returned  unsatisfied  in  whole  or 
in  part,  the  judj^ment  creditor,  at  any  time  after  such  return  is  made,  is 
■entitled  to  an  order  from  a  judge  of  the  court,  requiring  such  judsrment 
debtor  to  appear  and  answer  concerniui^  his  property  before  such  .judge, 
or  a  referee  appointed  by  him,  at  a  time  and  place  specified  in  the  order; 
but  no  judgment  debtor  must  be  required  to  attend  before  a  judge  or 
referee  out  of  the  county  in  which  he  resides,  or  in  which  he  has  a  place  of 
lousiness. 

plied  towards  the  satisfaction  of  the  judg- 
ment.  Matteson  etc.  Mfg.  Co.  v.  Conley, 
144  Cal.  483;  77  Pac.  1042.  This  scctiou 
and  §§  715-721,  post,  are,  by  §  905,  post, 
made  applicable  to  iustices'  courts.  West 
Coast  Safety  Faucet' Co.  v.  Wulff,  133  Cal. 
315;  85  Am.  St.  Rep.  171;  65  Pac.  622. 

Nature  of  supplementary  proceedings. 
A  proceeding  supj)lementary  to  o.xecutiou 
is  entirely  statutory;  it  is  a  separate  pro- 
ceeding in  the  original  action,  in  which 
the  court  where  the  action  is  pending  is 
called  upon  to  exercise  its  .jurisdiction  in 
aid  of  the  judgment  in  the  action;  ami 
unless  the  requirements  of  the  statute  are 
complied  with,  the  proceeding  cannot  be 
sustained.  Bryant  v.  Bank  of  California, 
2  Cal.  Unrep.  475;  7  Pac.  128;  and  see 
Hassie  v.  G.  I.  W.  U.  Congregation,  35 
Cal.  378.  It  is  a  proceeding  in  the  original 
case,  auxiliary  and  supplementary  thereto, 
and  not  a  new  action.  Collins  v.  Angell,  72 
Cal.  513;  14  Pac.  135.  Such  proceedings 
supplant  proceedings  in  equity,  unless  some 
special  ground  exists  upon  which  to  invoke 
the  power  of  chancery;  hence,  a  complaint, 
as  a  substitute  for  the  proceedin>;s  pro- 
vided by  this  chapter,  is  entirely  insuffi- 
cient, where  it  does  not  show  that  the 
remedies  at  law  have  been  exhausted  or 
would  be  unavailing,  and  where  there  is 
not  only  a  failure  to  aver  the  return  of 
an  execution  nulla  bona  or  at  all,  but 
there  is  an  affirmative  averment  that 
the  judgment  debtor  has  always  been 
fully  able  to  pay  the  judgment  and  execu- 
tion. Herrlich  v.  Kaufmann,  99  Cal.  271; 
37  Am.  St.  Rep.  50;  33  Pac.  857.  Proceed- 
ings supplementary  to  execution,  under  our 
code,  are  a  substitute  for  a  creditor's  bill, 
as  formerly  used  in  chancerv  (Matteson 
etc.  Mfg.  Co.  v.  Conley,  144 'Cal.  483;  77 
Pac.  1042;  and  see  Adams  v.  Hackett,  7 
Cal.  187;  McCullough  v.  Clark,  41  Cal.  298; 
Pacific  Bank  'v.  Robinson,  57  Cal.  520;  40 
Am.  Rep.  120;  Habenicht  v.  Lissak,  78 
Cal.  351;  12  Am.  St.  Rep.  63;  5  L.  R.  A. 
713;  20  Pac.  874;  High  v.  Bank  of  Com- 
merce, 95  Cal.  386;  29  Am.  St.  Rep.  121; 
30  Pac.  556;  Herrlich  v.  Kaufmann,  99  Cal. 
271;  37  Am.  St.  Rep.  50;  33  Pac.  857); 
and  their  purpose  is  to  insure  simplicity 
and  economy;  such  proceedings,  therefore, 
should  receive  a  liberal  construction,  and 


Conduct  of  examination.      Ante,  §  718. 
Receiver,     aiding     proceedings.      Ante,    §    564, 
subd.   4. 

Legislation  8  714.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  238  (.New  York  Code, 
?  292),  wiiirli  had  (1)  the  words  "shall  be"  in- 
stead of  "is"  before  "entitled  to  an  order,"  (2) 
the  word  "shall"  instead  of  "must"  before  "be 
■required,"  and  (3)  at  end  of  section  these  words, 
""when  proceedings  are  taken  under  the  provisions 
■of  this  chapter." 

2.  Amended  by  Code  Amdts.  1880,  p.  5.  (1) 
■changing  "the"  .  to  "a"  before  "judge  of  tlie 
-court,"  and  omitting,  after  these  words,  "or  a 
■county  judge." 

3.  Amendment  by  Stats.  1901,  p.  157;  un- 
constitutional.    See  note  ante,  §  5. 

4.  Amended     by     Stats.     1907,     p.     685. 
•changing  "do"   to  "does"  before  "not  reside," 

(2)  adding  "or  in  which  he  has  a  place  of  busi- 
■ness"  at  end  of  section;  the  code  commissioner 
saying,  "The  words  'or  in  which  he  has  a  place 
«f  business'  are  added  to  the  section,  thus  mak- 
ing it  possible  to  examine  judgment  debtors  in 
supplementary  proceedings  in  those  counties  in 
which    they   have   a   place  of   business." 

Construction  of  sections.  The  difference 
"between  §  23S  and  §  239  of  the  Practice 
Act  (the  present  §  714  and  §  715,  respec- 
tively, of  this  code)  consists  in  this:  that 
the  latter  allows  the  plaintiff  to  proceed 
■earlier  and  in  a  more  stringent  manner; 
under  one  section  the  creditor  can  exam- 
ine the  judgment  debtor  only  after  execu- 
tion returned,  v;hile  under  the  other  he 
can  examine  him  before  the  return,  and 
also  have  him  arrested,  upon  a  proper 
showing;  but,  under  both  sections,  the 
same  property  may  be  made  liable  when 
ascertained.  Adams  v.  Hackett,  7  Cal.  187. 
The  distinction  between  this  section  and 
§  715,  post,  is,  that,  under  the  latter,  sup- 
][)lementary  proceedings  may  be  commenced 
before  the  return  of  the  execution,  and  an 
affidavit  is  necessary,  showing  that  the 
judgment  debtor  has  property  which  he 
refuses  to  apply  to  the  satisfaction  of  the 
judgment;  but,  under  this  section,  where 
the  execution  has  been  returne<l  unsatis- 
fied, the  judgment  creditor  is  entitled  to 
the  order  without  any  affidavit.  Collins 
V.  Angell,  72  Cal.  513;  14  Pac.  135.  Under 
the  provisions  of  this  chapter,  a  debtor  of 
a  judgment  debtor  may  be  fully  examined 
as  to  j)roperty,  credits,  money,  or  other 
.assets,  in  his  possession  or  under  his  con- 
trol; witnesses  may  be  examined;  and  the 
judge  may  order  any  property  of  the  judg- 
ement debtor,  not  exempt  from  execution, 
«or  due  to  the  judgment  debtor,  to  be  ap- 


§714 


PROCEEDINGS   SUPPLEMENTAL   TO   EXECUTION. 


854 


the  main  intention  and  spirit  of  the  act 
should  be  fairly  carried  out.  Adams  v. 
Hackett,  7  Cal.  187. 

What  orders  may  be  enforced  under  this 
chapter.  Debts  secured  by  mortgage,  like 
other  debts,  may  be  attached  by  garnish- 
ment, but  in  no  other  way;  and  their  pay- 
ment may  be  enforced  under  provisions 
of  this  code  relating  to  proceedings  sup- 
plementary to  execution.  McGurren  v. 
Garrity,  68  Cal.  566;  9  Pae.  839.  The  judg- 
ment debtor  may  be  compelled,  in  pro- 
ceedings supplementary  to  execution,  to 
deliver  a  patent  right  in  satisfaction  of 
the  judgment,  to  a  receiver  appointed  to 
dispose  of  it  in  aid  of  the  execution. 
Pacific  Bank  v.  Eobinson,  57  Cal.  520;  40 
Am.  Eep.  120. 

Contempt.  "Where  the  judgment  debtor, 
to  defeat  the  process  of  the  court,  and 
the  order  directing  him  to  turn  over  prop- 
erty to  apply  upon  the  judgment,  procures 
delay  in  the  proceedings,  pending  vrhich 
he  voluntarily  and  contumaciously  disables 
himself  from  complying  vyith  the  order  he 
anticipates  being  made,  the  court  right- 
fully adjudges  him  guilty  of  contempt. 
Ex  parte  Kellogg,  64  Cal.  343;  30  Pac. 
1030;  and  see  Galland  v.  Galland,  44  Cal. 
475;  13  Am.  Eep.  167. 

Creditor's  bill  lies  when.  "Where  pro- 
ceedings sui^plementary  to  execution  afford 
an  adequate  legal  remedy,  a  creditor's  bill 
does  not  lie;  otherwise,  such  a  bill  may 
still  be  had.  Phillips  v.  Price,  153  Cal. 
146;  94  Pae.  617.  A  complaint  in  an  ac- 
tion against  a  garnishee  to  recover  money 
due  the  plaintiff's  judgment  debtor,  which 
fails  to  allege  that  an  execution  had  been 
levied  against  the  debtor  and  had  been 
returned  unsatisfied,  cannot  be  treated  as 
a  creditor's  bill,  since  it  fails  to  show  that 
the  plaintiff  has  no  adequate  remedy  at 
law.  Alatteson  etc.  Mfg.  Co.  v.  Conley, 
144  Cal.  483;  77  Pac.  1042. 

Proceedings  supplemental  to  execvition.  See 
note   100  Am.  Dec.  500. 

Creditors'  bills  and  proceedings  in  equity  in 
aid  of  execution.    See  note  90  Am.  Dec.   288. 

Exhausting  remedies  at  law  as  a  condition  of 
right  of  judgment  creditor  to  procure  a  receiver- 
ship.   See  note  33  L.  R.  A.  .546. 

Effect  of  bankruptcy  on  supplementary  pro- 
ceedings.   vSee  note  45  L.  R.  A.  193. 

Equitable  remedies  in  aid  of  execution.  See 
notes  63  L.  R.  A.  673  ;    15  L.  R.  A.  (N.  S.)  976. 

CODE  COMMISSIONERS'  NOTE.  McCullough 
V.  Clark,  41  Cal.  298;  Estate  of  Nerac,  35  Cal. 
398;  95  Am.  Dec.  Ill;  Adams  v.  Hackett,  7 
Cal.    187;    Hathaway  v.   Brady,   26   Cal.   589. 

Proceedings  under  this  chapter,  generally. 
Proceedings  supplementary  to  execution,  under 
§  294  of  the  code,  may  be  taken  to  compel  the 
treasurer  of  a  joint-stock  association  to  submit  to 
an  examination,  upon  the  alletiation  that  he  is 
indebted  to  it,  though  the  judfcment  is  entered 
against  him  as  treasurer  of  such  association, 
and  the  action  was  commenced  by  the  service 
of  summons  upon  him  under  the  act  of  1849. 
Courtois  V.  Harrison,  1  Hilt.  100.  .\n  order  in 
supplementary  proceedings,  directine  that  the  de- 
fendant should  "pay  over  to  plaintiff's  attorney 
the  sum  of  eighteen  dollars,  being  money  that 
he  has  paid  out  and  disposed  of  since  the  order 
made   by   me   on   the   twenty-eighth   day   of   April, 


restraining  him   from   disposing  of  his   said  prop- 
erty, was  duly  served  on  him,  and  while  the  said: 
order  remained  in   full   force   and  unrevoked,   and 
that  in  default  of  payment  of  the  said  money   as- 
aforesaid,   the  said   M.   be   committed   to   the  com- 
mon   jail,"    etc.:     held,    to    show    substantially    at 
contempt,    and   the   infliction   of   a   fine,    and    suffi- 
cient   to   justify   defendant's    imprisonment.     Rey- 
nolds   V.    McElhone,    20    Plow.    Pr.   454.      After   a 
receiver    of    defendant's    property    had    been    ap- 
pointed,   in   proceedings   supplementary   to   execu- 
tion against  the  defendant,  instituted  by  plaintiff, 
the  defendant's  household  furniture  was  destroyed 
by   fire.      The    furniture    was    such    as    is    exempt 
from    execution,    and    therefore    was    not    reached' 
by  the  supplementary  proceedings,   but   it  was  in- 
sured   at    the    time    of    the    fire.      Held,    that    the- 
claim  for  tlie  insurance-moneys  was  subsequently 
acquired    property,    which    did    not    pass    to,    and 
could    not    be    enforced    by,    the    receiver.     Sands 
V.     Roberts,     8     Abb.     Pr.     343.      Public     moneys 
raised    by    a    municipal    corporation    pursuant    to 
law — e.   g.,   by   tax — for  purposes  of  government, 
and  in  the  hands  of  its  fiscal  officer,   are  not  the 
property  of  the  corporation,   or  a  debt  due  to  it, 
within   the   meaning   of    §  294   of   the   code,    so    as 
to  entitle  a  judgment  creditor  of  the  corporation 
to  an  order  requiring  the  officer  to  pay  over  the- 
moneys  in  satisfaction  of  the  judgment.    Lowber 
V.   Mayor  etc.   of  New  York,   7   Abb.   Pr.   248.      A 
judgment    against    a   foreign    corporation    may   be 
enforced    by    supplementary    proceedings,     under 
§  294  of  the  code,  to  reach  property  belonging  to- 
it  in  the  hands  of  third  parties,   or  debts   due  to 
it  from  third  parties.    McBride  v.  Farmers'  Branch 
Bank,    7    Abb.    Pr.    347.      Form    of    affidavit    and 
order  in  supplementary  proceedings  against  third 
parties,  under  §  294  of  the  code.    Seeley  v.  Garri- 
son,   10    Abb.    Pr.    460.      The    orders    allowed    to 
be  made  in  supplementary  proceedings — directing 
the    application    of    property    and    money    to    the 
payment   of   a  judgment,    and   to   punish   for   con- 
tempt   (Code,    §§297,    302) — are   entirely   discre- 
tionary;  and  an  order  denying  an  application  for 
them    is    not    appealable.    Joyce    v.    Holbrook,    7 
Abb.  Pr.  338.      In  order  to  put  the  debtor  in  con- 
tempt   for    interfering    with    his    property    after- 
the  order,  it  must  be  affirmatively  shown  that  the 
property   in    question   was    acquired    prior    to    the 
granting  of  the  order.      The  order  does  not  affect 
after-acquired    property    (Browning    v.    Bettis,    8 
Paige  Ch.  568;   Stuvvesant  v.  Hall,  2  Barb.  Ch.  Pr. 
153;   Caton  v.   Southwell,   13  Barb.  335).     Potter- 
V.   Low,    16   How.   Pr.   549.      The   wife   cannot   be 
examined,    under    §  294    of    the    code,    in    supple- 
mentary   proceedings    against    her    husband.     An- 
drews  V.    Nelson,    7  Abb.    Pr.   3,    note.      It   seems 
that   the   proper  construction   of    §  294   would   ap- 
ply  to   the   case   of   a   judgment    against    any   cor- 
poration.    McBride   v.    Farmers'    Branch   Bank,    T 
Abb.   Pr.    347.      It  seems   that  proceedings   under 
that  section  may  be  taken  against  a  corporation. 
Courtois    V.    Harrison,     1    Hilt.     109.      An    order 
committing    a    party    for    contempt,    and    ordering 
that    he    be    imprisoned    until    he    comply    with    a.- 
previous  order  commanding  him  to  pay  into  court 
a    certain    sum   of   money,    is    an    excess    of   juris- 
diction,  and  void,  where  the  party  had  made  affi- 
davit, which  was  uncontradicted,   that  the  money 
had   passed    from   his   possession    and    control   be- 
fore the  proceedings  in  contempt  were  commenced. 
Adams  v.  Haskell,   6  Cal.   316;    65  Am.  Dec.  517^ 
A    judgment    not    property,     .\dams    v.    Hackett, 
7    (Tal.    187.      A,    although   being   indebted    to    the 
judgment    debtor,    was    not    a    necessary    party    to 
a    proceeding,    where    the    plaintiff    examined    his 
judgment   debtor    as    to    a   judgment    held    by    him 
against    A,     and    after    examination    obtained    an 
order  to  apply  the  same  to  the  judgment  of  plain- 
tiff.    Adams   V.    Hackett,    7    Cal.    187.      The    right 
to    the    examination    under    the    code    is    unquali- 
fiedly  given   wherever   an   execution   has   been   re- 
turned unsatisfied   in  whole   or  in   part.     Owen   v. 
Dupignac,   9   Abb.    Pr.    180.      It   appeared   by   the 
affidavit  upon   which   the   order   for   the    examina- 
tion of  the   defendant   was   founded,   and   the   fact 
was  recited  in  the  order,  that  about  fifteen  years 
previously    an    execution    had    been    issued    upon; 
the  judgment,   and  had  been  returned  wholly  un- 
satisfied;    and     that    an     alias    execution,     issued 
shortly    before    the    making    of   the    affidavit,    hadi 


855 


PROCEEDINGS  TO  COMPEL  DEBTOR  TO  APPEAR — BAIL  ON  ARREST. 


§715 


not  been  returned.  Held,  that  the  affidavit  was 
Kufticient,  and  that  the  judgment  creditor  was 
entitled  to  the  order  for  the  examination  of  the 
defendant.  Id.  In  supplementary  proceedint;8 
against  judgment  debtors,  an  order  was  made, 
forbidding  them  to  dispose  of  their  property.  On 
the  day  fi.\ed  by  the  order  for  tlu'ir  appearance 
for  their  examination,  they  appeared  at  the  office 
of  the  judge,  and,  after  waiting  some  time,  the 
office  being  unoccupied,  went  away.  Within  an 
hour  after  the  «i)pointed  time,  the  judge  ap- 
peared at  his  office,  and  the  plaiiititT  also  ap- 
peared, and.  in  the  absence  of  the  defendants, 
took  an  order  appointing  the  referee,  and  con- 
tinuing the  injunction.  In  conformity  with  this 
order,  the  defendants  appeared  and  submitted  to 
an  e.vamin.ition.  Held:  1.  That  the  original  in- 
junction had  not  become  revoked  nor  inoperative, 
nor  had  the  proceedings  been  suspended  by  the 
circumstances;  and  if  they  were,  it  was  waived 
by  the  subsequent  appearance  of  the  defendants. 
2.  That  the  act  of  the  defendants  in  paying  over 
money  subsequently  to  their  attendance  at  the 
office  of  the  judge  was  a  contempt.    Reynolds  v. 


McKlhone,  20  How.  I'r.  4.'54.  It  seems  that  the 
provisions  of  the  code  for  proceedings  supple- 
mentary to  execution  are  limited  to  reaching 
property  of  the  debtor,  whether  in  his  [jossession 
or  in  the  j»osse88ion  of  others  for  him,  and  which 
is  conceded  to  be  his;  also,  money  due  to  the 
debtor  wlien  the  order  is  obtained  and  served. 
Hut  when  property  or  money  uppi'ars  to  bel<jng 
to  him,  but  is  in  the  hands  of  others,  who  make 
claim  thereto,  it  should  be  reached  through  a  re- 
ceiver. Stewart  v.  Foster,  1  Hilt.  505.  Ex- 
aminations on  supplementary  proceedings  to  B 
judgment  can  only  be  extended  to  the  discovery 
of  the  property  in  the  possession  or  control  of 
the  defendant,  which  he  can  deliver  ovi-r.  If 
the  property  is  in  the  possession  of  another  claim- 
ing title,  no  matter  how  fraudulent  the  transfer, 
no  order  can  be  made  to  compel  him  to  deliver, 
and  therefore  no  questions  can  be  put  to  the 
debtor  or  witness  to  discover  or  prove  the  fraud. 
Town  V.  Safeguard  Ins.  Co.,  4  Bosw.  (N.  Y.) 
683.  For  general  matters  relating  to  proceed- 
ings supplementary  to  execution,  see  Hathaway 
V.  Brady,  26  Cal.  586. 


§  715.  Proceedings  to  compel  debtor  to  appear.  In  what  cases  he  may 
be  arrested.  What  bail  may  be  given.  After  the  issuing:  of  an  execution 
auainst  property,  and  upon  proof,  by  affidavit  of  a  partj^  or  otlierwise.  to 
the  satisfaction  of  a  judge  of  the  court,  that  any  judgment  debtor  has  prop- 
erty which  he  unjustly  refuses  to  apply  towards  the  satisfaction  of  the 
judgment,  such  judge  may,  by  an  order,  require  the  judgment  debtor  to 
appear,  at  a  specified  time  and  place,  before  such  judge,  or  a  referee  ap- 
pointed by  him,  to  answer  concerning  the  same ;  and  such  proceedings  may 
thereupon  be  had  for  the  application  of  the  property  of  the  judgment 
debtor  toward  the  satisfaction  of  the  judgment  as  are  provided  upon  the 
return  of  an  execution.  Instead  of  the  order  requiring  the  attendance  of 
the  judgment  debtor,  the  judge  may,  upon  affidavit  of  the  judgment  credi- 
tor, his  agent  or  attorney,  if  it  appear  to  him  that  there  is  danger  of  the 
debtor  absconding,  order  the  sheriff  to  arrest  the  debtor  and  bring  him 
before  such  judge.  Upon  being  brought  before  the  judge,  he  may  be  or- 
dered to  enter  into  an  undertaking,  with  sufficient  surety,  that  he  will 
attend  from  time  to  time  before  the  judge  or  referee,  as  may  be  directed 
during  the  pendency  of  proceedings  and  until  the  final  termination  thereof, 
and  will  not  in  the  mean  time  dispose  of  any  portion  of  his  property  not 
exempt  from  execution.  In  default  of  entering  into  such  undertaking  he 
may  be  committed  to  prison. 

erty,  within  the  meaning  of  this  section. 
A.lams  V.  Hackett,  7  Cal.  187.  It  is  pro- 
vided by  this  section,  that,  where  it  is 
sought  to  subject  the  property  of  the  ,iudg- 
ment  debtor  to  the  levy  of  the  execution, 
the  same  proceedings  may  be  had  as  those 
provided  after  the  return  of  execution: 
and  this  expressly  refers  to  §§717  et  seq., 
post.  Carter  v.  Los  Angeles  Nat.  Bank, 
116  Cal.  370;  48  Pac.  332. 

Nature  of  proceedings.  The  proceeding 
is  only  a  summary  method  of  purging  the 
debtor's  conscience,  and  compelling  the  dis- 
closure of  any  jiroperty  he  may  have  which 
is  subject  to  the  execution;  no  formal 
issues  are  required  to  be  frameil;  for  the 
very  object  of  the  proceeding  is  to  compel 
the  judgment  debtor  to  give  information 
concerning  his  property,  and  until  dis- 
closure   is    made,    there    is    nothing    ujion 


Witnesses  may  be  required  to  appear  and  an- 
swer.   I-'ost,  §  718. 

Application  of  property  of  judgment  debtor  to 
satisfaction  of  judgment.     Post.  §  719. 

Arrest  of  debtor  as  provisional  remedy.  Ante, 
§§  478-504. 

Discharge  of  persons  imprisoned  on  civil 
process.    Post,  §§  1143-1154. 

Legislation  g  715.  1.  Enacted  March  11.  1873; 
based  on  Practice  Act,  §  2.'i9  (New  York  Code, 
§292),  as  amended  bv  Stats.  1854.  p.  63  [90|. 
When  §  715  was  enacted  in  1872,  (1)  "shall" 
■was  changed  to  "may"  before  "be  directed."  and 
(b)  the  prefix  "de"  was  omitted  (sic)  before  the 
word   "termination." 

2.  Amended  by  Code  Amdts.  1880,  p.  5,  (1) 
adding  "a  judge  of"  before  "the  court,"  (2)  omit- 
ting, after  "the  court."  the  words  "or  of  a  judge 
thereof,  or  county  judge,"  and  (3)  omitting 
"court  or"  before  "judge  may,  by  an  order." 

Construction  of  sections.  The  judgment 
creditor  may  reach  any  property  liable  to 
execution,  when  proceedings  are  had  under 
this    section;    and    a    judgment    is    jjrop- 


§§716,717 


PROCEEDINGS   SUPPLEMENTAL   TO   EXECUTION. 


856 


execution.  Lvons  v.  Marcher,  119  Cal. 
382;  51Pac.  559. 

Decision,  and  its  effect.  After  hearing 
the  case,  the  court  or  referee  is  to  decide 
what  property,  if  any,  the  judgment  debtor 
has  that  is  subject  to  be  api)lied  to  the 
satisfaction  of  the  judgment,  and  to  direct 
its  application  accordingly;  and  its  de- 
cision in  the  proceedings  concludes  both 
parties  to  the  action  and  proceedings. 
McCullough  V.  Clark,  41  Cal.  298. 

Appeal.  The  judgment  debtor  cannot 
again  litigate  the  same  matters  in  an  in- 
dependent action;  and  if  he  claims  that 
the  property  was  exempt  from  execution, 
and  that  the  court  erred  in  ordering  it  to 
be  applied  in  satisfaction  of  the  judgment, 
he  has  a  plain  and  adequate  remedy  by 
appeal.    McCullough  v.  Clark,  41  Cal.  298. 

CODE  COMMISSIONERS'  NOTE.  As  to  com- 
mitment for  contempt,  see  Ex  parte  Cohen,  6  Cal. 
318.  Courts  are  exclusive  judges  of  their  own 
contempts,  but  a  person  cannot  be  imprisoned  for 
refusing  to  do  what  is  out  of  his  power.  Adams 
V.  Haskell,  6  Cal.  316;  65  Am.  Dec.  517;  see 
also  Adams  v.  Hackett,  7  Cal.  201;  see  casea 
cited  in  §  714,  ante. 


which  an  issue  can  be  framed.  McCul- 
lough V.  Clark,  41  Cal.  298;  and  see  Lyons 
V.  Marcher,  119  Cal.  382;  51  Pac.  559. 

The  affidavit.  An  affidavit,  under  this 
section  and  §  717,  post,  as  the  basis  for 
commencing  proceedings  supplementary  to 
execution,  takes  the  place  of  a  creditor's 
bill  in  chancery,  and  must  not  only  con- 
tain the  necessary  averments  to  give  the 
court  jurisdiction,  but  must  also  be  filed 
in  the  court,  or  delivered  to  the  court  for 
that  purpose.  Brvant  v.  Bank  of  Califor- 
nia, 2  Cal.  Unrep.  475;  7  Pac.  128. 

Practice  and  procedure.  Proceedings 
under  this  section  and  §  719,  post,  can 
only  be  taken  after  a  judgment  is  rendered 
and  an  execution  issued  thereon.  Wells  v. 
Torrance,  119  Cal.  437;  51  Pac.  626.  The 
judgment  creditor  and  the  judgment 
debtor  are  parties  to  the  proceeding,  and 
each  is  at  liberty  to  call  and  examine  wit- 
nesses in  respect  to  any  contested  fact 
which  may  be  brought  in  issue.  McCul- 
lough V.  Clark,  41  Cal.  298.  It  is  not 
incumbent  upon  the  court  to  make  express 
findings   in   special   proceedings   in   aid   of 

§  716.  Any  debtor  of  the  judgment  debtor  may  pay  the  latter's  credi- 
tor. After  the  issuing  of  an  execution  against  property,  and  before  its 
return,  any  person  indebted  to  the  judgment  debtor  may  pay  to  the  sheriff 
the  amount  of  his  debt,  or  so  much  thereof  as  may  be  necessary  to  satisfy 
the  execution;  and  the  sheriff's  receipt  is  a  sufficient  discharge  for  the 
amount  so  paid. 

Attachment.     Compare  ante,  §  544. 

Legislation  8  716.  Enacted  March  11.  1872; 
based  on  Practice  Act,  §  240  (New  York  Code. 
§293),  and  (1)  adding  "and  before  its  return" 
after  "property,"  and  (2)  changing  "shall  be"  to 
"is"   after  "receipt,"  when  adopted  in  the  code. 

Construction  of  section.  This  section  in 
no  way  trenches  upon  the  sovereignty  of 
the  state,  nor  does  it  impose  upon  any 
officer  of  the  state  any  duties  which  can 
embarrass  his  performance  of  official 
duties.  Skellv  v.  Westminster  School 
District.  103  Cal.  652;  37  Pac.  643. 

Payment  by  debtor  of  judgment  debtor. 
A  person  indebted  to  a  judgment  debtor 
has  the  right  to  pay  to  the  sheriff,  holding 
an  execution,  the  amount  of  his  debt;  and 
where  an  execution  has  been  regularly 
issued,  a  judgment  debtor  has  the  right 
to  satisfy  the  same,  without  a  formal  levy, 
an  1  is  entitled  to  have  the  judgment 
against  him  satisfied  of  record,  where  the 
money  has  gone  to  the  persons  entitled  to 
receive  it.  Buckeye  Refining  Co.  v.  Kelly, 
163  Cal.  8;  Ann.  Cas.  1913E,  840;  124  Pac. 
536. 

Rights  of  assignee  of  judgment.  Where 
the  juilgmont  creditor  assigns  the  judg- 
ment, and  the  judgment  debtor,  without 
notice  of  the  assignment,  afterwards  pays 
the    same    voluntarily    to    the    sheriff    by 


reason  of  the  service  of  garnishee  process 
upon  him,  the  rights  of  the  assignee  are 
not  affected,  and  he  may  still  enforce  the 
judgment.  Brown  v.  Ayres,  33  Cal.  525; 
91  Am.  Dec.  655. 

CODE  COMMISSIONERS'  NOTE.  B.  recov- 
ered a  judgment  against  A.  and  others,  and  there- 
after assigned  it,  for  a  valuable  consideration, 
to  C.  Subsequently  to  the  assignment,  and  be- 
fore notice  thereof  to  the  defendants,  they  paid 
the  amount  of  the  judgment,  less  $29.50,  to  the 
sheriff,  who  had  served  a  garnishment  upon  them 
in  V.  V.  B.,  and  to  a  constable  upon  an  execu- 
tion held  by  him  in  V.  v.  B.  Action  brought 
by  B.  against  A.  and  others  to  recover  the  amount 
of  his  judgment  against  them.  Held,  that  the 
case  came  within  the  provisions  of  this  section, 
and  that,  as  the  defendants  were  not  in  fact 
debtors  of  B.,  but  of  C,  at  the  time  of  the  pay- 
ments, they  were  not  discharged  from  liability 
on  the  judgment  against  them  in  favor  of  B. 
There  must  be  a  judgment  and  an  execution 
thereon  against  property,  and  the  person  making 
the  payment  must  be  indebted,  at  the  instant,  to 
him  against  whom  the  execution  runs,  in  order 
to  come  within  the  provisions  of  this  section. 
Brown  v.  Ayreg,  33  Cal.  528;  91  Am.  Dec.  655. 
The  plaintiff,  after  a  verdict  in  his  favor,  and  be- 
fore judgment  was  entered,  assigned  the  cause 
of  action  and  verdict;  judgment  was  afterwards 
entered,  defendant  was  garnished  under  the  exe- 
cution issued  on  other  judgments  against  the 
plaintiff,  and  paid  the  amount  of  the  judgment 
in  favor  of  the  plaintiff  against  him,  which  was 
applied  unon  the  executions.  The  assignment 
was  void,  and  the  payment  by  defendant  to  the 
sheriff  was  a  satisfaction  of  the  judgment.  Law- 
rence V.  Martin,  22  Cal.  173  ;  see  also  cases  cited 
in  notes  to  §§  714,   715,  ante. 


§  717.     Examination  of  debtors  of  judgment  debtor,  or  of  those  having 
property  belonging  to  him.     After  the  issuing  or  return  of  an  execution' 


857 


EXAMINATION   OF   DEBTOU,   ETC.,   AS    TO    HIS   PROPERTY. 


§717 


against  property  of  the  judfrmont  debtor,  or  of  any  one  of  several  debtors 
in  the  same  jud.L'ment,  and  upon  proof, by  affidavit  or  otherwise,  to  the 
satisfaction  of  tlie  judge,  that  any  person  or  corporation  has  property  of 
such  judgment  debtor,  or  is  indebted  to  him  in  an  amount  exceeding  fifty 
dollars,  the  judge  may,  by  an  order,  require  such  person  or  corporation,  or 
any  officer  or  member  thereof,  to  appear  at  a  specified  time  and  place  be- 
fore him,  or  a  referee  appointed  by  him,  and  answer  concerning  the  same. 

judfjmcnt,  without  first  ascertaining,  by 
an  examination  of  the  party  alicKcd  to 
have  the  property  in  his  possession,  the 
truth  of  the  allegation.  Ilathawav  v. 
Bra<ly.  26  Cal.  .^81. 

What  may  be  reached  by  garnishment. 
Moneys  held  by  a  chief  of  r)oli<'e,  not  in 
his  official  capacity,  but  i)rocureii  at  the 
request  and  by  the  direction  of  the  owner, 
a  prisoner  charged  with  murder,  may  be 
reached  by  garnishment,  upon  proceeilings 
supplementary  to  execution.  Coffee  v. 
Havnes,  124  Cal.  561;  71  Am.  St.  Kep.  99; 
57  Pac.  4S2. 

Debt  includes  what.  The  word  "debt," 
as  used  in  the  law  of  garnishment,  includes 
only  legal  debts,  and  not  mere  equity 
claims.  Hassie  v.  G.  I.  W.  U.  Congrega- 
tion, 35  Cal.  378;  Eedondo  Beach  Co.  v. 
Brewer.  101  Cal.  322;  35  Pac.  896. 

Construction  of  sections.  The  creditor 
has  his  election  to  proceed  against  the 
debtor  of  the  judgment  debtor,  under  the 
provisions  of  this  section,  or  he  may  pro- 
ceed against  his  immediate  debtor,  either 
under  §  714  or  §  715,  ante.  Adams  v.  Hack- 
ett,  7  Cal.  187.  There  is  nothing  in  this 
and  the  succeeding  section  that  authorizes 
the  court  to  make  an  order  for  the  api)li- 
cation  of  property  of  the  judgment  debtor, 
in  the  hands  of  a  third  party,  to  the  sat- 
isfaction of  the  judgment,  without  first 
ascertaining,  by  an  examination  of  the 
party  alleged  to  have  the  property  in  his 
possession,  the  truth  of  such  allegation. 
Hathaway  v.  Brady,  26  Cal.  581.  Even 
though  it  be  admitted  that  this  section 
and  §  720,  post,  have  any  application  to 
an  officer  holding  property  of  a  judgment 
debtor  by  virtue  of  legal  process  issued 
against  him,  neither  section,  however,  con- 
fers on  the  court  the  power  to  order  such 
property  sold,  nor  to  direct  that  the  pro- 
ceeds thereof  be  paid  to  the  clerk  of  the 
court.  Brown  v.  Moore,  61  Cal.  432.  Pro- 
cee<lings  under  this  and  the  succeeding 
sections  can  reach  everything  that  coubl 
formerly  be  made  to  contribute  to  the 
payment  of  the  judgment  by  the  aid  of 
the  cretlitors'  bill,  and  such  proceedings 
would  reach  choses  in  action  arising  from 
torts  committed  on  the  property  of  the 
judgment  debtor,  to  which  his  creditor 
would  have  a  right  to  resort  (Staples  v. 
May,  87  Cal.  17S;  25  Pac.  346);  but  such 
jiroceeilings  do  not  imply  any  notice  of  gar- 
nishment: they  are  sj)ecial,  and  can  be 
inaugurated  only  after  execution  has  been 
issued,   and   returned   unsatisfied   in   whole 


Receiver.    .\ntp,  §  564. 

Referee.    Ante,  §  714. 

Legislation  g  717.  1.  Enacted  March  11.  1872 ; 
re-f'iuu'tiiiint  of  Practice  Act,  §  241  (iv'ow  York 
Code.  §  2!I4),  except  that  the  code  comraissioners 
evidently  did  luit  pay  any  attention  to  the  "Kr- 
rata"  in  Stats.  1851,  and  used  the  word  "or"  in- 
stead of  "and"  before  "upon  proof  by  affidavit." 
See   infra,  this  i)araj;raph. 

2.  Amendment  by  Stats.  1901,  p.  157;  un- 
constitutional.    See   note   ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  685.  substi- 
tuting "and"  for  "or"  liefore  "upon  proof";  the 
code  commissioner  saving,  "The  word  'and'  is 
substituted  for  'or'  after  'judgment'  and  Ijefore 
'upon,'  to  make  the  section  conform  to  what  was 
evidently  the  intent  of  the  legislature  at  the  time 
of  its  pas.sage." 

Constitutionality.  The  provisions  of 
this  section  an<l  of  §  719,  post,  are  not 
unconstitutional,  because  not  providing 
for  notice  to  the  judgment  debtor,  nor  giv- 
ing him  an  opportunity  to  be  heard.  Coffee 
V.  Havnes,  124  Cal.  561;  71  Am.  St.  Eep. 
99;  57"Pac.  482. 

Affidavit  as  basis  of  proceedings.  The 
affidavit  serves  no  other  purpose  than  as 
a  basis  to  set  the  proceedings  in  motion: 
it  is  not  a  pleading,  like  a  complaint,  to 
which  the  party  summoned  is  to  plead,  and 
in  default  of  pleading  thereto,  to  be  taken 
in  the  proceeding  as  true.  Hathaway  v. 
Brady,  26  Cal.  581.  No  default  can  be 
entered  upon  the  affidavit:  it  is  simply  the 
basis  for  the  order,  for  the  purpose  of 
acquiring  jurisdiction  of  a  party  who  pre- 
viously was  a  stranger  to  the  case.  Hatha- 
way v.  Brady,  26  Cal.  581. 

Service  on  garnishee.  A  garnishee,  being 
no  party  to  the  original  action  against 
the  juilgment  debtor,  need  not  be  served 
with  process  therein:  it  is  sufficient,  to 
give  the  court  jurisdiction  of  his  person 
in  supplementary  proceedings,  that  copies 
of  the  order,  and  of  the  affidavit  on  which 
it  was  based,  requiring  him  to  appear  for 
examination,  were  duly  served  on  him, 
and  that  he  appeared  and  was  examined 
in  obedience  thereto.  Bronzan  v.  Drobaz, 
93  Cal.  647;  29  Pac.  254.  No  showing  is 
required  to  the  effect  that  a  notice  of 
garnishment  has  been  served  upon  a  per- 
son alleged  to  have  projierty  of  the  judg- 
ment debtor.  Carter  v.  Los  Angeles  Nat. 
Bank,  116  Cal.  370;  48  Pac.  332. 

Necessity  for  the  examination.  No 
judgment  can  be  rendered  without  the 
examination  of  the  garnishee.  Ilibernia 
Sav.  &  L.  Soc.  V.  Superior  Court,  56  Cal. 
265.  A  court  is  not  authorized  to  make 
an  order  for  the  application  of  property 
of  the  judgment  debtor,  in  the  hands  of 
a   third   party,   to   the   satisfaction   of   the 


§§718,719 


PROCEEDINGS  SUPPLEMENTAL   TO   EXECUTION. 


858 


be  applied  on  the  judgment.  Matteson  etc. 
Mfg.  Co.  V.  Conley,  144  Cal.  483;  77  Pac. 
1042. 

CODE  COMMISSIONERS'  NOTE.  See  cases 
rited  in  notes  to  §§714.  715,  and  716  ante. 
Sections  717,  718,  and  719  of  this  code  do  not 
allow  the  court  to  make  an  order  for  the  applica- 
tion of  property  of  the  judgment  debtor  in  the 
hands  of  a  third  party  to  the  satisfaction  of  a 
judgment,  upon  the  mere  affidavit  of  the  plain- 
tiff The  -person  said  to  have  such  property  in 
his  possession  niu.st  first  be  examined,  bee 
Hathaway  v.  Brady,  26  Cal.  586. 


or  in  part;  and  may  be  commenced  by 
affidavit  or  other  proof  that  any  person 
has  property  of  the  judgment  debtor.  Car- 
ter V.  Los  Angeles  Nat.  Bank,  116  Cal.  370; 
4S  Pac.  332.  Property  or  credits  in  the 
hands  of  a  debtor  of  a  judgment  debtor 
cannot  be  applied  to  the  satisfaction  of 
the  judgment  in  a  separate  action,  as  the 
party  cannot  be  sued  upon  the  debt  by 
one  to  whom  he  is  not  indebted:  the  pro- 
ceedings provided  by  law  must  be  fol- 
lowed,  where   such    property    is   sought    to 

§  718.  Witnesses  required  to  testify.  Witnesses  may  be  required  to  ap- 
pear and  testify  before  the  judge  or  referee,  upon  any  proceeding  under 
this  chapter,  in  the  same  manner  as  upon  the  trial  of  an  issue. 

Witnesses,  rights  and  duties  of.    Post,  §§  2064-        Code,  §  295). 
■2070. 

Legislation  §  718.      Enacted  March   11,    1873: 
re-enactment    of    Practice    Act,  §  242     (^ew    \ork 

§719.    Judge  may   order  property  to   be   applied  on  execution.     The 

jud^e  or  referee  may  order  any  property  of  the  judgment  debtor,  not  ex- 
emp't  from  execution,  in  the  hands  of  such  debtor,  or  any  other  person,  or 
due  to  the  judgment  debtor,  to  be  applied  toward  the  satisfaction  of  the 
judgment ;  but  no  such  order  can  be  made  as  to  money  or  property  m  the 
hands  of  any  other  person  or  claimed  to  be  due  from  him  to  the  judgment 
debtor,  if  such  person  claims  an  interest  in  the  property  adverse  to  the 
judgment  debtor  or  denies  the  debt. 


CODE    COMMISSIONERS'    NOTE.      See    cases 
cited  in  notes  to  §§  714,  715,  716,  and  717,  ante. 


Exempt  from  execution,  what  is,  generally. 
Ante,  §  ti90. 

Wages,  etc.,  preference  of.     Post,  §  1206. 

Legislation  §  719.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  243  (New  York  Code, 
§  297).  which  read  the  same  as  the  present  sec- 
tion, except  for  the  limitation,  which  then  read: 
"except  that  the  earnings  of  the  debtor  for  his 
personal  services,  at  any  time  within  thirty  days 
next  preceding  the  order,  shall  not  be  so  applied, 
■when  it  shall  be  made  to  appear  by  the  debtor's 
affidavit,  or  otherwise,  that  such  earnings  are 
necessary  for  the  use  of  a  family  supported 
wholly  or  partly  by  his  labor."  When  §  719 
was  enacted  in  1872,  (1)  the  word  "the"  was 
changed  to  "a"  after  "property  of,"  and  (b)  the 
exception  was  omitted. 

2.  Amendment  by  Stats.  1901,  p.  157;  un- 
constitutional.    See    note    ante.  §  5. 

3.  Amended  by  Stals.  1907,  p.  685,  (1)  re- 
storing the  word  "a"  to  "the"  after  "property 
of,"  and  (2)  adding  the  limitation  beginning  "but 
no  such  order" ;  the  code  commissioner  saying, 
"The  amendment  consists  in  adding  the  last 
clause,  thus  limiting  the  right  of  the  judge  or 
referee  to  order  the  delivery  of  property  to  those 
cases  in  which  no  adverse  interest  is  claimed 
thereto." 

Scope  of  section.  The  supplementary 
proceedings  provided  for  in  this  section  are 
only  one  of  the  three  remedies  of  judg- 
ment creditors  who  seek  to  recover  against 
third  persons  (Finch  v.  Finch,  12  Cal.  App. 
274;  107  Pac.  594);  and  payment  of  debts 
secured  by  mortgage  may  be  enforced  by 
such  proceedings.  McGurren  v.  Garrity,  68 
Cal..^fi6;  9  Pac.  839. 

Basis  of  order.  The  order  to  apply  prop- 
erty to  the  satisfaction  of  the  judgment 
must  be  based  upon  the  answers  of  the 
party  summoned,  and  such  other  testi- 
mony  as    may    be   adduced   in    connection 


with  the  answer:  the  statutory  proceed- 
ings must  be  strictly  pursued.  Hathaway 
V.  Brady,  26  Cal.  58L 

What  orders  may  be  made.  In  supple- 
mentary proceedings,  it  is  proper  to  order 
the  execution  debtor  to  assign  to  a  re- 
ceiver his  patent  right  to  an  invention. 
Pacific  Bank  v.  Robinson,  57  Cal.  52U;  40 
Am.  Rep.  120.  A  judgment  by  default 
cannot  be  entered  in  supplementary  pro- 
ceedings; and  a  writ  of  review  will  issue, 
where  default  is  entered,  upon  such  pro- 
ceedings, in  the  superior  court,  upon  a 
judgment  rendered  in  a  justice's  court. 
Hibernia  Sav.  &  L.  Soc.  v.  Superior  Court, 
56  Cal.  26.3. 

When  order  shall  be  set  aside.  Upon 
the  reversal  of  judgment  in  the  main  pro- 
ceeding, the  lower  court  should  set  aside 
an  unexecuted  order  in  proceedings  supple- 
mentarv  to  execution.  Turner  v.  Mark- 
ham,  1.56  Cal.  68;  103  Pac.  319. 

Property  in  custodia  legis.  An  officer, 
holding  property  of  a  judgment  debtor  by 
virtue  of  legal  process  issued  against  him, 
cannot  be  compelled  by  the  court  to  sell 
such  property  and  pay  to  the  clerk  the 
proceeds  of  the  sale;  and  for  disobedience 
of  such  a  voiil  order  the  officer  cannot  be 
punished  for  contempt.  Brown  v.  Moore, 
61  Cal.  432;  Williams  v.  Dwindle,  51  Cal. 
442. 

Adverse  claim  of  title  by  garnishee.  A 
fund  cannot  be  reached  by  proceedings 
supplementary  to  execution,  where  the 
garnishee   denies  possession   or   control   of 


-859 


ADVERSE  CLAIM  OF  ANOTHER  TO  PROPERTY — PROCEEDINGS. 


§720 


any  credits  or  other  proi>erty  of  the  jmlK- 
ment  debtor,  and  asserts  title  to  such  as- 
sets in  himself:  in  such  a  case,  supple- 
ireiitary  proceedings  do  not  supersede  the 
reiiit'dy  by  action,  for  the  reason  that  they 
are  not  adequate  to  accomi>lish  the  i>ur- 
pose  of  the  action.  Kapp  v.  Whittier,  113 
•Cal.  429;  45  Pac.  70:5;  an<l  see  Swift  v. 
Arents,  4  Cal.  390;  Herri ich  v.  Kaufman n, 
99  Cal.  271;  37  Am.  St.  Kep.  5U;  33  I'ac 
857;  Lewis  v.  Chamberlain,  108  Cal.  525; 
41  Pac.  413.  A  comi)laint  in  the  nature 
•of  a  creditor's  bill  is  the  proper  procedure, 
•where  an  adverse  claim  or  title  is  set  up 
by  the  garnishee  to  funds  sought  to  be 
subjected  to  the  satisfaction  of  the  judg- 


ment   against    the    debtor.     Rapp    v.    Whit- 
tier, 113  Cal.  PJ'.t;  45  Pac.  703. 

Denial  of  debt.  The  mere  denial,  by 
the  garnishee,  of  the  indebtedness  whiidi 
the  other  averments  and  admissions  of  the 
parties  show  to  be  an  erroneous  conclusion 
from  the  whole  transaction,  should  not  be 
deemeil  sutlicient  to  divest  the  court  of  ju- 
risdiftion  to  make  the  order  jirovided  for 
in  this  section.  Finch  v.  Pirn  li,  12  Cal. 
App.  274;  107  Pac.  594. 

Lieu  acquired  by  service  of  notice  in  supple- 
mentary procesdings.  See  note  3  L.  11.  A.  (N.  S.) 
l-J.i. 

CODE  COMMISSIONERS'  NOTE.  See  cnses 
citL'd  in  notes  to  §§  714,  715,  716,  717,  ante;  see 
also  Parker  v.  l^aRc,  38  Cul.  522. 


§720.     Proceedings  upon  claim  of  another  party.     If  it  appears  that  a 

peison  or  corporation,  alleged  to  have  property  ol"  the  jndirment  debtor,  or 

to  be  indebted  to  him,  claims  an  interest  in  the  property  adverse  to  him, 

or  denies  the  debt,  the  judgment  creditor  may  maintain  an  action  a-jrainst 

such  person  or  corporation  for  the  recovery  of  such  interest  or  debt ;  and 

the  court  or  judge  may,  by  order,  forbid  a  transfer  or  other  disposition  of 

such  interest  or  debt,  until  an  action  can  be  commenced  and  prosecuted  to 

judgment.     Such  order  may  be  modified  or  vacated  by  the  judge  grantinsr 

the  same,  or  the  court  in  which  the  action  is  brought,  at  any  time,  upon  such 

terms  as  may  be  just. 

of  the  judgment  debtor,  or  is  in  any  way 
indebte<l  to  him;  but  wlierc  it  is  evident 
that  the  garnishee  is  acting  in  bad  faith 
in  denying  his  indebtedness  to  the  judg- 
ment debtor,  and  makes  the  denial  only 
in  form,  and  for  purposes  of  vexation  and 
delay,  the  court  may  treat  it  as  fraudu- 
lent, and  disregard  it.  Parker  v.  Page, 
38  Cal.  522.  Where  the  garnishee  denies 
that  he  is  indebted  to  the  judgment  debtor, 
neither  the  referee  nor  the  court  has  jiower 
to  compel  him  to  pay  to  the  sheritf  the 
amount  of  his  alleged  indebtedness;  but 
the  court  may  enter  an  order  authorizing 
the  judgment  creditor  to  institute  an  ac- 
tion against  the  garnishee  to  determine 
the  question  of  indebtedness.  Hartman  v. 
Olvera,  51  Cal.  501.  If  a  third  person  has 
received  money  from  a  judgment  debtor, 
which  is  claimed  in  good  faith  to  be  his 
own,  the  power  of  the  court,  in  a  proceed- 
ing supplementary  to  execution,  is  limited 
to  authorizing  the  judgment  creditor  to 
institute  an  action  against  such  thin!  per- 
son to  recover  the  money,  and  to  forbid 
a  transfer  of  it. until  such  action  shall  be 
prosecuted  to  judgment.  Union  Collection 
Co.  V  Snell,  5  Cal.  App.  130;  89  Pac.  S59. 
The  order  of  the  judge  on  supplementary 
proceedings,  where  the  garnisJiee  claims 
the  property,  is  not  an  adjudication  of  the 
riglits  of  tlie  parties:  the  only  power  the 
judge  has  in  the  premises,  is  to  make  an 
order  authorizing  the  judgment  creditor 
to  institute  an  action  in  the  proper  court, 
and,  should  he  choose  to  do  so,  to  for- 
bid a  transfer,   pending  the  action.    High 


Receiver.    Ante,  §  504. 
Wages,  etc.    Post,  §  1206. 

Legislation  8  720.  1.  Enacted  March  11.  1872; 
based  on  Practice  Act,  §  244  { Xew  York  CDdc, 
§299),  which  had,  (1)  in  first  line  "appear"  in- 
stead of  "appears."  and  (2)  did  not  liave  the 
"words  "to  be,"  which  were  added  in   1872. 

2.  .Amendment  by  Stats.  1901,  p.  157;  un- 
•constitutional.     See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907.  p.  686,  (1)  omit- 
"ting,  after  "denies  the  debt,"  the  words  "the 
court  or  judge  may  authorize,  by  an  order  made 
to  that  effect,"  and  (2)  changing  the  words  "to 
institute"  to  "may  maintain";  the  code  cimmis- 
sioner  saying,  "The  amendment  consists  in  striking 
out  the  words  'the  court  or  judge  may  authorize 
by  an  order  made  to  that  effect,'  thus  enabling 
the  judgment  creditor  to  sue  for  jiroperty  to 
be  subject  to  his  execution  without  first  obtaining 
•an  order  of  court." 

Constitutionality  of  section.  This  sec- 
tion is  not  unconstitutional,  in  that  the 
judgment  debtor  has,  under  it,  no  notice 
of  the  supplementary  proceeding  after 
judgment  affecting  his  rights  of  property 
(High  V.  Bank  of  Commerce,  95  Cal.  38G; 
■29  Am.  St.  Eep.  121;  30  Pac.  556);  but 
■see  Bryant  v.  Bank  of  California,  2  Cal. 
Unrep."  507,  8  Pac.  044,  holding  that  a 
law  purporting  to  authorize  a  judge,  by 
■order,  to  permit  the  judgment  creditor  to 
institute  and  maintain  an  action  against 
"the  debtor  of  the  judgment  debtor,  as  in 
rthis  section,  is  unconstitutional  and  void, 
T\'here  no  notice  of  such  proceeding  to  the 
judgment  debtor  is  provideil  for. 

Jurisdiction  of  court.  The  court  may 
make  an  order  authorizing  the  judgment 
•creditor  to  institute  an  action  against  the 
garnishee,  only  when  the  garnishee,  in 
good   faith,    denies   that   he    has    property 


§720 


PROCEEDINGS   SUPPLEMENTAL   TO   EXECUTION. 


860> 


V.  Bank  of  Commerce,  103  Cal.  525;  37  Pae. 
508;  McDowell  v.  Bell,  86  Cal.  615;  25  Pac. 
12S.  Where  certain  property,  claimed  by 
the  judgment  creditor  to  be  the  property 
of  the  judgment  debtor,  was  conveyed  to 
a  third  party  upon  the  same  day  that  the 
affidavit  was  filed  for  the  institution  of 
the  supplementary  proceedings,  the  court 
has  no  jurisdiction  to  take  possession  of 
the  property  by  a  receiver,  but  can  only 
make  an  order  authorizing  the  judgment 
creditor  to  institute  an  action  against  the 
parties  claiming  it,  for  its  recovery  and 
subjection  to  the  satisfaction  of  the  debt, 
and  forbidding  its  transfer  until  such 
action  could  be  commenced  and  prosecuted 
to  judgment.  McDowell  v.  Bell,  86  Cal. 
615;  25  Pac.  128;  and  see  Hartman  v.  01- 
vera,  51  Cal.  501.  Where  a  fund,  claimed 
to  be  due  to  the  judgment  debtor,  is  gar- 
nished, and,  before  the  judgment  is  ren- 
dered, the  judgment  debtor  assigns  the 
fund  to  another  creditor,  the  proper  pro- 
cedure is,  not  to  order  the  garnishee  to 
pay  the  fund  into  court,  but  to  authorize 
the  judgment  creditor  to  sue  the  garnishee. 
Schiuo  V.  Cinquini,  7  Cal.  App.  244;  94 
Pac.  83.  The  court  has  no  jurisdiction  to 
order  the  grantee  of  the  judgment  debtor, 
who  claims  title  to  the  property  mentioned 
in  the  affidavit,  to  surrender  it,  or  to  sub- 
ject it  to  the  satisfaction  of  the  judgment. 
Lewis  V.  Chamberlain,  108  Cal.  525;  41 
Pac.  413.  To  make  an  order  in  relation 
to  property  which  the  garnishee  claims 
to  own  in  his  own  right,  requiring  its 
application  in  satisfaction  of  the  judg- 
ment of  another,  is  to  deprive  the  gar- 
nishee of  his  property  upon  a  summary 
proceeding  and  without  due  process  of 
law.  Lewis  v.  Chamberlain,  108  Cal.  525; 
41  Pac.  413;  and  see  McDowell  v.  Bell,  86 
Cal.  615;  25  Pac.  128.  Where  there  are 
other  persons  claiming  liens  upon  money 
in  the  possession  of  a  garnishee,  the  court 
cannot  properly  order  that  the  garnishee 
shall  pay  such  money  to  the  plaintiff,  but 
is  authorized  only  to  make  an  order  that 
an  action  be  brought  against  the  gar- 
nishee, to  which  action  other  persons 
claiming  liens  upon  the  fund  may  be  made 
parties,  to  the  end  that  all  adverse  claims 
might  be  adjusted,  and  conclusively  settled 
in  such  action.  Deering  v.  Richardson- 
Kimball  Co.,  109  Cal.  73;  41  Pac.  801; 
and  see  Roberts  v.  Landecker,  9  Cal.  262; 
Parker  v.  Page,  38  Cal.  522;  Robinson  v. 
Tevis,  38  Cal.  612;  Hartman  v.  01  vera,  51 
Cal.  501;  Ex  parte  Mollis,  59  Cal.  406. 
Ihe  garnishee  may  pay  the  moneys  into 
court,  and  thereby  relieve  himself  of  all 
resjionsibility;  and  the  court  may  order 
that  an  action  be  instituted,  wherein  all 
parties  interested  shouM  be  made  parties. 
Deering  v.  Richardson-Kimball  Co.,  109 
Cal.  73;  41  Pac.  801. 

Eight  of  action  under  this  section.     One 
of    the   three   remedies   in   favor    of   judg- 


ment creditors  against  third  persons  is  a. 
separate  action  to  establish  the  indebted- 
ness, if  it  is  denied,  and  to  recover  the- 
debt  as  authorized  by  this  section.  Finch 
V.  Finch,  12  Cal.  App.  274;  107  Pac.  594. 
A  creditor  making  a  garnishment  under 
execution  must  first  obtain  an  order  under 
proceedings  supplementary  to  execution 
before  suing  the  garnishee,  unless  the  gar- 
nishee waives  such  proceedings  by  inter- 
pleader or  otherwise.  Water  Supply  Co. 
V.  Sarnow,  1  Cal.  App.  479;  82  Pac. 
689.  In  an  action  based  upon  an  order- 
under  this  section,  the  plaintiff  must  aver 
and  prove  the  existence  of  the  order,  and 
of  the  proceedings  upon  which  it  was 
founded;  without  the  proceedings,  the 
order  is  a  nullity,  and  v.'ithout  the  order, 
no  action  can  be  maintained.  Bryant  v. 
Bank  of  California,  2  Cal.  Unrep.  475; 
7  Pac.  128.  No  equitable  circumstances 
need  be  shown,  in  order  to  justify  the 
suit.  Carter  v.  Los  Angeles  Nat.  Bank,. 
116  Cal.  370;  48  Pac.  332.  Where  judg- 
ment creditors  have  prosecuted  their  pro- 
ceedings supplementary  to  execution  so 
far  as  to  secure  a  denial  by  the  garnishee 
of  any  indebtedness  to  their  judgment 
debtor,  they  have  the  right  to  bring  an 
action  against  their  garnishee  without  any 
order  of  court.  Nordstrom  v.  Corona  City 
Water  Co.,  155  Cal.  206;  132  Am.  St.  Rep. 
81;  100  Pac.  242.  An  order  of  court,, 
authorizing  an  action  under  this  section, 
need  not  follow  the  precise  language  of 
the  statute:  it  is  sufficient,  to  permit  the 
action,  if  it  is  in  substantial  compliance 
with  the  law.  Nordstrom  v.  Corona  City 
Water  Co.,  155  Cal.  206;  132  Am.  St.  Eep.. 
81;  100  Pac.  242. 

Adverse  claims  of,  or  denial  of  debt  by, 
garnishee.  In  proceedings  supplementary 
to  execution,  the  denial  of  the  debt,  or 
the  adverse  claim  to  the  property,  by  the 
garnishee,  is  a  claim  or  denial  in  good 
faith,  and  not  one  of  mere  pretense;  but 
when  it  is  evident  that  the  garnishee  is- 
acting  in  bad  faith  in  denying  his  in- 
debtedness or  asserting  his  claim,  the 
referee  may  treat  it  as  fraudulent,  and 
disregard  it,  and,  in  the  absence  of  ex: 
plicit  findings  upon  material  points,  it  will 
be  presumed  that  the  referee  found  the 
facts  necessary  to  support  the  judgment- 
Parker  V.  Page,  38  Cal.  522.  An  adverse 
claim"  of  the  garnishee  is  expressly  set 
forth  and  interpleaded,  where,  upon  ex- 
amination, he  fully  informs  the  court  of 
all  such  adverse  claims.  Deering  v.  Rich- 
aidson-Kimball  Co.,  109  Cal.  73;  41  Pae^ 
801.  Where  the  referee  or  the  court  dis- 
regards the  adverse  claim  or  denial  on 
the  ground  of  bad  faith,  the  better  prac- 
tice is  so  to  state  in  the  finding,  in  order 
that  it  may  be  subject  to  review  on  ap- 
peal; but  where  the  statement  of  the  gar- 
nishee is  so  meager  and  unsatisfactory 
that    the    referee    may    well    have    treate(£. 


«61 


ACTIONS    BY    CREDITORS — CONTEMPTS — PUNISHMENT. 


§721 


3iis  denial  of  the  debt  as  evasive  aiui 
made  in  bad  faith,  it  will  be  presumed, 
in  support  of  the  jud<(nieiit,  to  have  been 
so  found.  Parker  v.  Pajje,  38  Cal.  522. 
Whore  a  third  j)erson  receives  money  from 
a  judgment  debtor,  claimed  in  good  faith 
to  be  liis  own,  liis  title  thereto  cannot  be 
litigated  in  supplementary  })roceedings. 
Union  Collection  Co.  v.  yuell,  5  Cal.  App. 
130;  S9  Pac.  859. 

Creditor's  bill  lies  when.  Statutory  sup- 
plementary proceedings  were  designed  to 
take  the  place  of  the  equitable  remedy  by 
creditor's  bill,  formerly  the  only  method 
of  reaching  assets  which  could  not  be 
seized  on  execution  (Nordstrom  v.  Corona 
City  Water  Co.,  155  Cal.  20(5;  132  Am.  St. 
Rep.  81;  100  Pac.  242;  Pacific  Bank  v. 
Kobinson,  57  Cal.  520;  40  Am.  Kcp.  120); 
but  they  have  not  superseded  or  abolished 
the  right  to  bring  a  suit  in  the  nature 
of  a  creditor's  bill.  Union  Collection  Co. 
V.  Snell,  5  Cal.  App.  130;  89  Pac.  859; 
Eapp  V.  Whittier,  113  Cal.  429;  45  Pac. 
703.  When  supplementary  proceedings 
afford  an  adequate  legal  remedy,  a  credi- 
tor's bill  does  not  lie;  on  the  contrary, 
a   creditor's   bill    may   be   had,   where   sup- 


jdomentary  proceedings  are  inadequate. 
l'hillii)8  V.  Price,  153  Cal.  146;  94  Pac. 
617;  llerrlich  v.  Kaufmann,  99  Cal.  271; 
27  Am.  >St.  Hep.  50;  33  Pac.  857;  Rapp  v. 
Whittier,  113  Cal.  429;  45  Pac.  703.  Be- 
fore equity  can  be  iuvokeil  in  a  croditor'a 
bill,  it  must  be  sliowii  tliat  the  remedies 
at  law  are  unavailing,  and  the  bill  must 
aver  that  an  execution  has  been  returned 
unsutislied.  llerrlich  v.  Kaufmann,  99  Cal. 
271;  27  Am.  St.   Hep.  50;  X',  Pac.  857. 

Other  actions  by  creditors.  Creditors 
who  are  entitled  to  a  trust  fun<i  under 
an  arrangement  between  the  judgment 
debtor  and  the  garnishee,  are  not  con- 
cluded by  a  supplementary  j)roceeding: 
they  are  not  parties  to  it,  and  may,  by 
an  action  in  the  nature  of  a  bill  of  inter- 
]deader,  settle  the  rights  of  all  the  par- 
ties interested.  Parker  v.  Page,  38  Cal. 
522.  The  remedy  of  the  creditor  against 
a  fraudulent  assignee  is  by  direct  action, 
■where  the  good  faith  of  an  assignment  is 
in  issue.    Hartman  v.  Olvera,  51  Cal.  501. 

CODE  COMMISSIONERS'  NOTE.  See  Parker 
V.  Page,  :i8  Cal.  52-1;  Estate  of  Nerac,  35  Cal. 
398;  95  Am.  Di'c.  Ill;  see  cases  cited  in  notes 
to  §§  714,  715,  71G,  ante. 


§  721.  Disobedience  of  orders,  how  punished.  If  any  person,  party,  or 
witness  disobey  an  order  of  the  referee,  properly  made,  in  the  proceedings 
before  him  under  this  chapter,  he  may  be  punished  by  the  court  or  judge 
ordering  the  reference,  for  a  contempt. 

Contempt.    Post,  §§  1209  et  seq. 


Legislation  §  721.  Enacted  March  11,  1873; 
re-enactment  of  Practice  Act,  §  245  (New  Yorli 
Code,  §  302). 

Contempt,  punishable  by  justice  of  the 
peace.  A  justice  of  the  peace  may  punish 
for  contempt  a  person  refusing  to  obey  an 


order  directing  him  to  deliver  property 
subject  to  execution.  Ex  parte  Latimer, 
47  Cal.  131. 

CODE  COMMISSIONERS'  NOTE.  See  Estate 
of  Nerac,  35  Cal.  398;  95  Am.  Dec.  Ill;  see 
cases  cited  in  notes  to  §§  714,  715,  716,  inte. 


§  726  ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES.  862 

TITLE  X. 
ACTIONS    IN    PARTICULAK    CASES. 

Chapter  I.     Actions  for  Foreclosure  of  Mortgages.     §§  726-729. 

11.     Actions  for  Nuisance,  Waste,  and  Willful  Trespass,  in  Certain  Cases,  on  Eea! 
Property.     §§  731-735. 

III.  Actions  to  Determine  Conflicting  Claims  to  Real  Property,   and  Otlier  Pro- 

visions Relating  to  Actions  concerning  Real  Estate.     §§  738-751. 

IV.  Actions  for  Partition  of  Real  Property.     §§  752-801. 

V.     Actions  for  Usurpation  of  an  Office  or  a  Franchise.     §§  802-810. 
VI.     Actions  against  Steamers,  Vessels,  and  Boats.     §§  813-827. 

CHAPTER  I. 

ACTIONS  FOR  FORECLOSURE  OF  MORTGAGES. 

§726.     Proceedings  in  foreclosure  suits.  §729.     Oath    and    undertaking    of    commissioner.- 
§  727.     Surplus  money  to  be  deposited  in  court.  Report    and    account   of   sale.      Compen- 

§  728.     Proceedings  when   debt   secured   falls   due  sation  of  commissioner, 

at    different    times. 

§  726.  Proceedings  in  foreclosure  suits.  There  can  be  but  one  action  for 
the  recovery  of  any  debt,  or  the  enforcement  of  any  right  secured  by  mort- 
gage upon  real  or  personal  property,  which  action  must  be  in  accordance 
with  the  provisions  of  this  chapter.  In  such  action  the  court  may,  by  its 
judgment,  direct  the  sale  of  the  encumbered  propertj^  (or  so  much  thereof 
as  may  be  necessary),  and  the  application  of  the  proceeds  of  the  sale  to  the 
payment  of  the  costs  of  court,  and  the  expenses  of  the  sale,  and  the  amount 
due  plaintiff,  including,  where  the  mortgage  provides  for  the  pa3''ment  of 
attorney's  fees,  such  sum  for  such  fees  as  the  court  shall  find  reasonable,, 
not  exceeding  the  amount  named  in  the  mortgage.  The  court  may,  by  its. 
judgment,  or  at  any  time  after  judgment,  appoint  a  commissioner  to  sell 
the  encumbered  property.  It  must  require  of  him  an  undertaking  in  an 
amount  fixed  by  the  court,  with  sufficient  sureties,  to  be  approved  by  the 
judge,  to  the  effect  that  the  commissioner  will  faithfully  perform  the  duties 
of  his  office  according  to  law.  Before  entering  upon  the  discharge  of  his 
duties  he  must  file  such  undertaking,  so  approved,  together  with  his  oath 
that  he  will  faithfully  perform  the  duties  of  his  office.  If  it  appear  from 
the  sheriff's  return,  or  from  the  commissioner's  report,  that  the  proceerls 
are  insufficient,  and  a  balance  still  remains  due,  judgment  must  then  be 
docketed  by  the  clerk  in  the  manner  provided  in  this  code  for  such  balance 
against  the  defendant  or  defendants  personally  liable  for  the  debt,  and  it 
becomes  a  lien  on  the  real  estate  of  such  judgment  debtor,  as  in  other  cases 
in  which  execution  may  be  issued.  No  person  holding  a  conveyance  from 
or  under  the  mortgagor  of  the  property  mortgaged,  or  having  a  lien  thereon, 
which  conveyance  or  lien  does  not  appear  of  record  in  the  proper  office 
at  the  time  of  the  commencement  of  the  action,  need  be  made  a  party  to 
such  action,  and  the  judgment  therein  rendered,  and  the  proceedings  therein 
had,  are  as  conclusive  against  the  party  holding  such  unrecorded  convey- 
ance or  lien  as  if  he  had  been  a  party  to  the  action.  If  the  court  appoints 
a  commissioner  for  the  sale  of  the  property,  he  must  sell  it  in  the  manner 
provided  by  law  for  the  sale  of  like  property  by  the  sheriff  upon  execution; 
and  the  provisions  of  chapter  one,  title  nine,  part  two,  of  this  code  are  • 


863 


PROCEDURE  BEFORE  ADOPTION  OF  CODES. 


§726 


hereby  made  applicable  to  sales  made  Ijy  such  commissioner,  and  the  pow- 
ers therein  given  and  the  duties  therein  imposed  on  sheriffs  are  extended  to 
such  commissioner.  In  all  cases  heretofore,  now  or  hereafter  pcndintr  in 
the  courts  of  this  state,  in  the  event  of  the  death,  absence  from  the  state, 
other  disability  or  disqualification  of  the  commissioner  appointed  to  sell 
encumbered  property  under  the  fore-ioinpr  provisions  of  this  section,  the 
court  may,  upon  the  happening  of  either  the  death,  absence  from  the  state, 
other  disability  or  disqualification  of  the  commissioner,  appoint  an  elisor 
to  perform  the  duties  of  such  commissioner  which  are  then  to  be  performed 
in  such  action.  The  elisor  so  appoinU-d  shall  give  the  undertaking,  and 
take  the  oath  hereinbefore  provided  to  be  given  and  taken  by  a  commis- 
sioner, before  entering  upon  the  discharge  of  his  duties,  and  shall  there- 
after perform  all  duties  left  unperformed  by  the  commissioner  whom  he  is 
appointed  to  succeed,  with  like  effect  as  if  such  duties  had  been  performed 
by  the  commissioner.  If  the  land  mortgaged  consist  of  a  single  parcel,  or 
of  two  or  more  contiguous  parcels,  situated  in  two  or  more  counties,  the 
court  may,  in  its  judgment,  direct  the  whole  thereof  to  be  sold  in  one  of 
such  counties  by  the  sheriff,  commissioner  or  elisor,  as  the  case  may  be, 
and  upon  such  proceedings,  and  Avith  like  effect,  as  if  the  whole  of  the 
property  were  situated  in  that  county. 


Assistance,  writ  of.    See  post,  §  1210. 

Injunction  to  restrain  waste  by  party  in  pos- 
session.   Post,  §  745. 

Judgment  by  default.  Ante,  §  585.  Relief. 
Ante.  §§  580,    585. 

Personal  property,  mortgage  or  pledge  of. 
Remedies.  See  Civ.  Code,  §§2967,  298G-3011; 
post,  §  2967. 

Place  of  trial.    Ante,  §  392. 

Pleading  written  document.    Ante,  §§  447-449. 

Foreclosure  necessary  to  obtain  possession. 
Post,  §  744. 

Receiver.    Ante,  §  564. 

Lis  pendens.    Ante,  §  409. 

Several  mortgages  or  debts,  installments,  etc. 
Post,  §  728. 

Tender.    Post,  §  997. 

Legislation  §  726.  1.  Enacted  March  11,  1873 ; 
based  on  Practice  Act,  §  246,  as  amended  by 
stats.  1865-66,  p.  704.  When  §  726  was  en- 
acted in  1872,  (1)  in  first  sentence,  "shall"  was 
changed  to  "must";  (2)  the  beginning  of  the  sec- 
ond sentence,  before  the  words  "direct  the  sale," 
was  changed  from  "In  such  action,  the  court 
may";  (3)  in  Ihe  same  sentence,  (a)  "to"  was 
omitted  before  "direct  a  sale,"  (b)  "the"  was 
added  before  "expenses  of  the  sale,"  (c)  "shall" 
was  changed  to  "can"  before  "then  be,"  and  (d) 
"shall  then"  was  changed  to  "it  becomes"  before 
"a  lien";  (4)  in  sentence  beginning  "No  person," 
(a)  "shall  be"  was  changed  to  "are"  before  "as 
conclusive,"  and  (b)  "said"  was  changed  to  "the" 
before  "action,"  the  section  then  ending  with  this 
latter  word;  (5)  omitting  from  end  of  section  the 
words  "and  shall  in  all  respects  have  the  same 
force  and  effect." 

2.  Amended  by  Stats.  1893,  p.  118,  (1)  in 
sentence  beginning  "In  such  action,"  the  words 
"to  the"  were  omitted  after  "amount  due,"  and 
the  word  "plaintiff"  was  changed  to  "plaintiffs," 
changing  the  semicolon  after  this  word  to  a 
period;  (2)  a  new  sentence  was  added,  beginning 
"The  court"  and  ending  "property";  (3)  "and 
was  omitted  before  "If  it  appear,"  and  a  new  sen- 
tence was  begun  with  these  words,  adding,  in 
the  same,  after  "sheriff's  return,"  the  words  "or 
from  the  commissioner's  report";  (4)  in  sentence 
beginning  "No  person,"  the  word  "made"  was 
omitted  after  "he  had  been";  (5)  a  new  sentence 
was  added,  reading,  "If  the  court  appoint  a  com- 
missioner for  the  sale  of  the  proiierty,  he  shall 
sell  it  in  the  manner  provided  by  law  for  the  sale 
of   like   property    by    the    sheriflf   upon    execution, 


and  the  provisions  of  chapter  one,  title  nine,  part 
iwci.  of  ihe  Code  of  Civil  Procedure,  are  hereby 
made  applicable  to  sales  made  by  such  commis- 
sioners, and  the  powers  therein  given  and  the 
duties  therein  imposed  on  sheriffs  are  extended 
to  such  commissioners";  the  section  then  ending 
with    this   seiifence. 

3.  Amended  by  Stats.  1895,  p.  98,  (1)  in 
sentence  beginning  "In  such  action,"  (a)  "the" 
was  omitted  after  "costs  of,"  and  (b)  "plain- 
tiffs" was  changed  to  "plaintiff";  (2)  a  new 
sentence  was  added,  reading,  "In  the  event  of 
the  death,  or  absence  from  the  state,  or  other  dis- 
ability or  disqualification  of  the  commissioner  so 
appointed  to  sell  encumbered  property,  the  court 
may,  after  the  time  for  redemption  lias  expired, 
appoint  an  elisor  to  make  the  deed  or  deeds  due 
to  the  purchaser  or  purchasers,  or  his  or  their 
assigns,  of  the  property  so  sold  by  said  commis- 
sioner." 

4.  Amended  by  Stats.  1901,  p.  48,  (1)  in  first 
sentence,  omitting  "estate"  after  "real";  (2)  in 
sentence  beginning  "In  such  action,"  (a)  chan- 
ging "a"  to  "the"  before  "sale  of,"  and  (b)  add- 
ing, after  "due  plaintiff,"  from  word  "including" 
to  end  of  sentence;  (3)  adding  two  new  sen- 
fences,  beginning  "It  must  require"  and  ending 
^|duties  of  his  office";  (4)  in  sentence  beginning 
"If    it    appear,"    (a)    changing    "can"    to    "must," 

(b)  after  "docketed,"  adding  the  words  "bv  the 
clerk   in   the  manner  provided  in   this    code.''    and 

(c)  changing  "on"  to  "in"  after  "other  cases"; 
(5)  changing  and  adding  to  section,  after  "If 
the  court  appoint,"   to  read  as  at  present. 

5.  Amendment  by  Stats.  1901.  p.  15S;  un- 
constitutional.   See  note  ante,  §  5. 

Procedure    before    adoption    of    codes. 

Before  the  adoption  of  the  codes,  the  par- 
ties were  at  liberty  to  adopt,  in  the  fore- 
closure of  mortgages,  the  course  pursued 
under  the  old  chancery  system,  and  take 
a  decree  adjudging  the  amount  due  upon 
the  personal  obligation  of  the  mortgagor, 
and  directing  a  sale  of  the  premises  and 
the  application  of  the  proceeds  to  its  pay- 
ment, and  apply,  after  sale,  for  the  ascer- 
tainment of  any  deficiency,  and  execution 
for  the  same,  or  take  a  formal  judgment 
for   the   amount  due   in   the  first  instance. 


S726 


ACTIONS  FOR   FORECLOSURE  OF    MORTGAGES. 


864 


(Rowland  v.  Leiby,  14  Cal.  156;  Englund 
V.  Lewis,  25  Cal.  337);  and  legal  and  equi- 
table relief  could  be  had  in  the  same 
action,  the  result  being,  that,  in  fore- 
closure cases,  a  formal  judgment  in  per- 
sonam could  be  rendered  against  the 
defendant  for  the  amount  found  due,  with 
a  provision  for  its  enforcement  against 
the  property  upon  which  the  lien  was  es- 
tablished (Englund  v.  Lewis,  25  Cal.  337); 
and  a  personal  money  judgment  in  favor 
of  all  parties  holding  notes  against  the 
defendant  could  be  rendered  before  sale 
of  the  iiropertv.  Cormerais  v.  Genella,  22 
Cal.  116. 

Construction  of  section.  Three  essen- 
tials provided  for  by  this  section  are:  1. 
To  make  the  mortgaged  property  the  pri- 
mary fund  out  of  which  satisfaction  is 
to  be  had;  2.  To  give  the  plaintiff  a  per- 
sonal judgment  for  such  balance  as  may 
remain  due  after  the  exhaustion  of  the 
mortgaged  projjerty;  and  3.  To  confine  a 
recovery  to  one  action.  Toby  v.  Oregon 
Pacific  E.  R.  Co.,  98  Cal.  490;  33  Pac.  550. 
This  section  was  not  intended  to  prohibit 
the  ordinary  transaction  of  putting  up 
mortgages  as  collaterals  to  secure  an  in- 
debtedness, nor  to  limit  such  collaterals 
to  mortgages  which  can  be  foreclosed  in 
the  same  action.  Merced  Security  Sav. 
Bank  v.  Casaccia,  103  Cal.  641;  37  Pac. 
€48.  It  must  be  construed  to  have  refer- 
ence to  the  enforcement  of  those  rights, 
only,  which  are  necessary  to  the  recovery 
of  the  debt  and  the  foreclosure  of  the  lien 
given  to  secure  it,  and  not  to  any  col- 
lateral contract  in  the  mortgage  which 
does  not  affect  the  interests  of  the  par- 
ties in  the  mortgaged  property.  Ely  v. 
Williams,  6  Cal.  App.  455;  92  Pac.  393.  A 
trust  deed,  given  as  security  for  a  debt, 
Is  within  the  policy  of  this  section  and 
may  be  foreclosed.  Herbert  Kraft  Co.  v. 
Brian,  6  Cal.  Unrep.  923;  68  Pac.  1020. 
This  section  refers  to  persons  having  a 
lien  on  the  mortgaged  premises,  as  well 
as  a  conveyance  thereof.  Wemple  v.  Yo- 
semite  Gold  Mining  Co.,  4  Cal.  App.  78; 
S7  Pac.  280. 

Mortgagee  may  become  owner  how. 
The  mortgagee  can,  in  no  case,  become  the 
owner  of  the  mortgaged  premises,  except 
by  purchase  upon  sale  under  judicial  de- 
cree. Warner  v.  Freud,  138  Cal.  651;  72 
Pac.  345;  and  see  McMillan  v.  Richards,  9 
Cal.  365;  70  Am.  Dec.  655;  Goodenow  v. 
Ewer,  16  Cal.  461;  76  Am.  Dec.  540;  Lord 
V.  Morris.  18  Cal.  482. 

Merger  of  mortgage  in  deed  of  trust.  A 
deed  of  trust  does  not  necessarily  super- 
sede or  merge  a  prior  mortgage:  such 
merger  is  a  question  of  intention.  Crisman 
V.  Lanterman,  149  Cal.  647;  117  Am.  St. 
Rep.  167;  87  Pac.  89. 

Bank  cannot  apply  deposit  on  mortgage 
debt.  A  })ank,  liolding  a  dfljt  secured  by 
a  mortgage,  cannot  apply,  in  reduction  or 


cancellation  of  the  debt,  a  claim  due  by 
it  to  the  mortgagor,  founded  upon  a  gen- 
eral and  ordinary  deposit  of  money  with 
it  by  the  mortgagor.  McKean  v.  German- 
American  Sav.  Bank,  118  Cal.  334;  50  Pac. 
656;  John  M.  C.  Marble  Co.  v.  Merchants' 
Nat.  Bank,  15  Cal.  App.  347;  115  Pac.  59. 

Payments  on  account  of  mortgage  debt. 
Moneys  paid  by  the  mortgagor  to  the  mort- 
gagee between  the  filing  of  the  complaint 
in  foreclosure  and  the  sale,  which,  by  the 
terms  of  the  contract  between  them,  should 
have  been  credited  on  the  mortgage  in- 
debtedness, but  for  which  no  credit  was 
given,  may  be  recovered  back  by  the  mort- 
gagor. Maddux  v.  County  Bank,  129  Cal. 
665;  79  Am.  St.  Rep.  143;  62  Pac.  264. 

Liability  of  surety,  guarantor,  and  in- 
dorser.  One  who  is  a  mere  surety,  as  dis- 
tinguished from  a  guarantor,  has  the  right 
to  demand  that  the  creditor  shall  first 
apply  the  jjroperty  of  the  principal  debtor 
to  the  discharge  of  the  debt;  but  the  credi- 
tor has  the  right  to  sue  a  guarantor,  upon 
default  of  the  i^rincipal  debtor,  without 
proceeding  first  to  realize  upon  other  secu- 
rities, or  to  foreclose  a  mortgage  given  by 
such  debtor.  Adams  v.  Wallace,  119  Cal 
67;  51  Pac.  14.  Sureties  and  indorsers  are 
not  released  by  the  failure  of  the  creditor 
to  enforce  the  mortgage  which  he  has 
taken  to  secure  the  debt;  and  it  does  not 
prevent  the  maintenance  of  an  action  by 
the  mortgagee  against  the  sureties  or  in- 
dorsers of  the  mortgagor  because  their 
promise  is  not  secured  by  the  mortgage. 
Carver  v.  Steele,  116  Cal.  116;  58  Am.  St. 
Rep.  156;  47  Pac.  1007;  Adams  v.  Wallace, 
119  Cal.  67;  51  Pac.  14.  The  indorser  of 
a  note  secured  by  mortgage  may  be  sued 
upon  his  obligation,  without  a  foreclosure 
of  the  mortgage.  Kinsel  v.  Ballon,  151 
Cal.  760;  91  Pac.  620. 

Liability  of  grantee  who  assumes  mort- 
gage debt.  The  agreement  of  a  grantee  to 
discharge  the  mortgage  debt  is  an  obliga- 
tion in  the  hands  of  the  mortgagor,  which 
the  mortgagee  may  enforce  for  his  own 
benefit  when  he  seeks  to  obtain  satisfac- 
tion of  the  mortgage  debt,  to  the  same 
extent  that  it  could  be  enforced  by  the 
mortgagor.  Hopkins  v.  Warner,  109  Cal. 
133;  41  Pac.  868.  The  grantee  who  as- 
sumes ]iayment  of  the  mortgage  as  part 
of  the  purchase  price,  becomes,  as  to  the 
mortgagor,  the  principal  debtor,  with  the 
mortgagor  as  surety.  Williams  v.  Naftz- 
ger,  103  Cal.  438;  37  Pac.  411;  Hopkins  v. 
Warner,  109  Cal.  133;  41  Pac.  868;  Roberts 
V.  Fitzallen,  120  Cal.  482;  52  Pac.  818. 
A  formal  promise  by  the  grantee  to  pay 
the  mortgage  debt  is  not  necessary,  in  or- 
der to  render  him  liable  therefor,  if  his 
intention  to  assume  the  debt  appears  from 
a  consideration  of  the  entire  instrument; 
the  obligation  may  be  made  orally,  or  in 
a  separate  instrument;  it  may  be  implied 
from    the    transaction    of    the    parties,    op 


865 


GRANTEE  ASSUMING   DEBT — PROI'IiRTY    IN   TWO    COUXnES. 


§726 


Bhown  by  the  circumstances  under  which 
tlio  ])urchase  was  ina<ie.  Ilojikius  v.  War- 
ner, 109  Cal.  i;i3;  41  Pac.  SGS.  The  lia- 
bility of  the  mortjiajjor  is  contin^icnt  on 
the  fact  that  a  sale  of  the  mortgaged  jirem- 
ises  shall  fail  to  satisfy  the  (lebt  and 
costs;  and  it  is  against  this  contingency 
that  the  jturchaser,  who  agrees  to  i)ay  the 
mortgage  debt,  indemnifies  him.  BiddeJ  v. 
Brizzolara,  64  Cal.  3.31;  30  Pac.  W9.  The 
mortgagor  is  discharged  from  personal 
liability,  where  the  mortgagee  extends  the 
time  of  payment  to  the  grantee  of  the 
mortgagor,  who  has  assumed  i)ayment  of 
the  mortgage  debt.  Herd  v.  Tuohy,  133 
Cal.  55;  65  Pac.  139.  The  agreement  of  the 
grantee  to  pay  the  mortgage  debt  may  be 
abandoned  at  any  time  by  the  parties  to 
it,  and  they  may  mutually  agree  to  re- 
lease each  other  from  its  performance,  and 
the  mortgagee,  being  a  stranger  to  the  con- 
tract, can  have  no  greater  rights  than  the 
mortgagor  himself  would  have.  Biddel  v. 
Brizzolara,  64  Cal.  354;  30  Pac.  609.  The 
statute  of  limitations  runs  against  the 
mortgage  obligation,  for  that  is  the  gran- 
tee's liability,  and  not  against  the  prom- 
ise to  pay  the  mortgage  as  a  new  and 
independent  agreement.  Hopkins  v.  War- 
ner, 109  Cal.  133;  41  Pac.  868.  Where 
the  mortgagor  grants  the  mortgaged  pro[>- 
erty,  ami  dies  so  shortly  before  the  out- 
lawing of  the  debt  that  no  administration 
can  be  secured  before  the  statute  would 
run  in  favor  of  the  grantee,  the  mortgagee 
may  at  once  sue  the  grantee,  and  may 
subsequently,  after  the  issuance  of  letters 
of  administration,  by  amendment  or  sup- 
plemental pleadings,  bring  in  the  repre- 
sentatives of  the  deceased,  and  thus  in  one 
action  secure  all  the  remedies  to  which 
he  may  be  entitled.  California  Title  Ins. 
etc.  Co.  V.  Miller,  3  Cal.  App.  54;  84  Pac. 
453.  An  agreement  by  the  grantee  to  pay 
the  mortgage  debt  upon  the  granted  prem- 
ises, renders  the  grantee  liable  therefor 
to  the  mortgagee,  and,  upon  foreclosure 
■of  the  mortgage,  judgment  may  be  ren- 
dered against  such  grantee,  as  well  as 
against  the  mortgagor,  for  any  deficiency. 
Williams  v.  Naftzger,  103  Cal.  438;  37 
Pac.  411;  Hopkins  v.  Warner,  109  Cal. 
133;  41  Pac.  868;  Roberts  v.  Fitzallen,  120 
Cal.  482;  52  Pac.  818.  Equity,  to  avoid 
circuity  of  action,  permits  the  joinder  of 
the  mortgagor  and  his  grantee,  who  has 
agreed  to  assume  the  mortgage,  in  the 
action  to  foreclose  the  mortgage;  but  the 
only  personal  judgment  that  can  be  ren- 
dered against  either  of  them  is  for  the 
deficiency  after  the  sale  of  the  mortgaged 
premises.  Hopkins  v.  Warner,  109  Cal. 
133;  41  Pac.  868.  The  mortgagee,  in  his 
action  to  foreclose,  may  proceed  against 
the  mortgagor  alone  for  any  deficiency  in 
the  proceeds  of  the  sale,  or  he  may  avail 
himself  of  his  right  to  proceed,  in  the 
same  action,  against  the  mortgagor  and 
1  Fair. — 55 


his  grantee,  wlio  lias  assumed  the  pay- 
ment of  the  mortgage  debt;  if  ho  proceed 
against  the  mortgagor  alone,  nud  judg- 
ment is  docketed  against  him  for  any 
deficiency,  the  mortgagor  has  a  right  of 
action  over  against  his  grantee,  upon  his 
agreement  to  assume  the  mortgage  debt. 
Hopkins  v.  Warner,  109  Cal.  133;  41 
Pac.  868.  The  right  of  the  mortgagee  to 
recover  a  <leficiency  judgment  directly 
against  the  grantee  of  the  mortgagor,  who 
has  assumed  to  pay  the  mortgage  debt, 
springs  from  the  rule  of  equity,  that  a 
creditor  is  entitled  to  the  benefit  of  any 
obligation  or  security  given  by  his  debtor 
to  one  who  has  become  the  surety  of  such 
debtor  for  the  payment  of  the  <lebt;  but 
this  rule  is  applicable  only  where  the 
mortgagor  is  personally  liable  for  the 
mortgage  debt.  Ward  v.  De  Oca,  120  Cal. 
1U2;  52  Pac.  130. 

Conclusiveness  of  foreclosure  sale.  The 
judgment  in  a  foreclosure  suit,  and  all  the 
proceedings  therein,  are  conclusive  against 
the  grantee  of  the  mortgagor,  who  fails 
to  record  his  conveyance;  in  such  case, 
the  grantee,  by  standing  idly  by  and  per- 
mitting foreclosure  proceedings  to  be 
prosecuted  without  intervention  upon  his 
part,  consents  to  be  represented  by  the 
mortgagor,  and  the  legal  effect  of  the  fore- 
closure sale  is  to  divest  his  title  as  com- 
pletely as  though  he  himself  were  a  party 
to  the  foreclosure  suit.  Breedlove  v.  Nor- 
wich etc.  Fire  Ins.  Soc.,  124  Cal.  164;  56 
Pac.  770. 

Object  of  foreclosure.  The  object  of  a 
foreclosure  suit  is  to  subject  to  a  judicial 
sale,  and  to  vest  in  the  purchaser  there- 
under, the  same  title  or  estate  in  the  mort- 
gaged property  that  the  mortgagor  had 
at  the  time  of  the  execution  of  the  mort- 
gage. Beronio  v.  Ventura  County  Lumber 
Co.,  129  Cal.  232;  79  Am.  St.  Rep.  118;  61 
Pac.  958. 

Mortgage  covering  real  and  personal 
property.  A  mortgage  covering  real  and 
personal  property  is  valid,  and  may  be 
foreclosed  in  the  same  proceedings;  and 
both  the  real  and  the  personal  property 
may  be  sold  under  the  same  decree.  San 
Francisco  Breweries  v.  Schurtz,  104  Cal. 
420;  38  Pac.  92;  and  see  Tregear  v.  Eti- 
wanda  Water  Co.,  76  Cal.  537;  9  Am.  St. 
Rep.  245;  18  Pac.  658.  The  fact  that  some 
of  the  personal  property  included  in  a 
mortgage  of  real  and  personal  property 
is  not  mortgageable  does  not  render  the 
mortgage  void  as  to  the  other  property 
covered  bv  it.  San  Francisco  Breweries  v. 
Schurtz,  104  Cal.  420;  38  Pac.  92. 

Mortgaged  property  in  two  or  more  coun- 
ties. Where  the  mortgaged  property  lies 
in  dift'erent  counties,  the  mortgagee  may 
commence  an  action  of  foreclosure  in 
either  county,  and  in  the  single  action 
obtain  a  judgment  for  the  foreclosure  of 
his   mortgage   upon   the   property   in   both 


§726 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


866 


counties.  Kent  v.  Williams,  146  Cal.  3; 
79  Pac.  527;  and  see  Murphy  v.  Superior 
Court,  138  Cal.  69;  70  Pac.  1070. 

Other  remedies  in  case  of  personal  prop- 
erty. Where  the  mortgage  provides  that 
the  mortgagee  shall  be  entitled  to  posses- 
sion of  the  chattels  upon  default,  he  has 
the  right  to  bring  an  action  of  replevin 
after  default;  and  such  action  does  jiot 
contravene  the  provision  of  this  section 
allowing  but  one  action  to  enforce  the  debt 
or  lien  of  the  mortgage.  Harper  v.  Gordon, 
128  Cal.  489;  61  Pac.  84.  The  limitation 
upon  the  form  of  action,  declared  in  this 
section,  extends  only  to  "mortgages";  and, 
as  a  stockholder's  agreement  that  the  cor- 
poration shall  have  a  lien  upon  his  stock 
is  not  a  mortgage,  the  corporation  may 
enforce  payment  of  the  indebtedness  by 
action,  without  any  foreclosure  of  the  lien. 
People's  Home  Sav.  Bank  v.  Sadler,  1  Cal. 
App.  189;  81  Pac.  1029.  Where  a  chattel 
mortgage  gives  a  right  to  take  possession 
upon  default  in  payment,  the  mortgagee, 
after  electing  to  foreclose,  may  sue  in 
replevin  to  recover  possession:  such  rem- 
edv  is  ancillary  and  auxiliary  to  foreclos- 
ure. Ely  V.  Williams,  6  Cal.  App.  455;  92 
Pac.  393.  A  pledgee  may  have  his  action 
to  recover  the  delat  without  first  exhaust- 
ing the  subject  of  his  pledge.  .Jones  v. 
Evans,  6  Cal.  App.  88;  91  Pac.  532;  John 
M.  C.  Marble  Co.  v.  Merchants'  Nat.  Bank, 
15  Cal.  App.  347;  115  Pac.  59. 

One  action  for  recovery  of  debt  secured 
by  mortgage.  There  is  but  one  form  of 
action  to  recover  a  debt  secured  by  mort- 
gage. Lilly-Braekett  Co.  v.  Sonnemann, 
157  Cal.  192;  21  Ann.  Cas.  1279;  106- 
Pac.  715.  The  plaintiff  cannot  waive  the 
security,  and  bring  an  action  on  the  in- 
debtedness:, he  must  bring  his  action  of 
foreclosure,  and  exhaust  the  security  be- 
fore he  can  have  recourse  to  the  personal 
responsibilitv  of  the  debtor.  Barbieri  v. 
Ramelli,  84  "Cal.  154;  23  Pac.  1086;  Gna- 
rini  v.  Swiss-American  Bank,  162  Cal.  181; 
121  Pac.  726.  To  an  action  at  law  upon 
a  promissory  note,  it  is  a  complete  defense 
to  set  up  the  fact  that  the  note  is  secured 
by  mortgage;  the  mortgagee  cannot  bring 
an  action  and  have  judgment  upon  the 
note  without  foreclosure  of  the  mortgage. 
Hibernia  Sav.  &  L.  Soc.  v.  Thornton,  109 
Cal.  427;  50  Am.  St.  Rep.  52;  42  Pac.  447; 
117  Cal.  481;  49  Pac.  573.  The  intention 
of  the  legislature  in  enacting  the  pro- 
vision that  there  can  be  but  one  action 
for  the  recovery  of  any  debt  secured  by 
mortgage,  was  to  prevent  a  multiplicity 
of  suits:  if  one  suit  could  be  maintained 
upon  a  note,  and  another  upon  the  mort- 
gage by  which  it  is  secured,  no  change 
was  effected  by  this  enactment,  because  a 
mortgagee  was  previously  limited  to  these 
two  actions.  Ould  v.  Stoddard,  54  Cal.  613. 
The  provision  of  this  section,  that  there 
ehall   be  but   one   action   for  the   recovery 


of  any  debt,  relates  to  civil  actions  com- 
menced and  prosecuted  in  the  courts  of 
this  state:  it  does  not  embrace  and  control 
proceedings  sanctioned  by  the  common 
law,  which  cannot,  in  any  legal  sense,  be 
called  actions  at  law  or  suits  in  equity. 
Wilson  V.  Brannan,  27  Cal.  258.  Where 
a  mortgagee  has  prosecuted  an  action  in 
another  state  to  final  judgment,  upon  a 
note  secured  by  mortgage  on  real  property 
in  this  state,  he  cannot  afterwards  main- 
tain an  action  for  foreclosure  in  this  state. 
Ould  V.  Stoddard,  54  Cal.  613.  There 
can  be  no  attachment,  in  any  case,  where 
the  debt  is  secured  by  mortgage;  and  no 
action  can  be  maintained,  in  such  case, 
without  a  foreclosure  of  the  mortgage. 
Barbieri  v.  Ramelli,  84  Cal.  174;  24  Pac. 
113.  A  separate  action  cannot  be  brought 
for  the  recovery  of  a  debt  for  which  a 
mortgage  security  has  been  given,  though 
such  security  was  originally  valueless,  or 
totally  inadequate  by  reason  of  prior  mort- 
gages to  the  full  value  of  the  premises. 
Barbieri  v.  Ramelli,  84  Cal.  154;  23  Pac. 
1086.  There  is  no  difference  between  com- 
mencing and  enforcing  an  attachment  suit 
while  there  is  a  valid  mortgage  existing 
to  secure  the  debt,  and  prosecuting  an 
action  already  commenced  after  a  mort- 
gage is  given  to  secure  the  debt  which  is 
the  subject  of  that  action:  the  mortgage 
subserves  the  same  purpose  in  both  cases, 
which  is,  to  secure  the  debt,  and,  after 
it  is  given,  the  law  steps  in  and  limits 
the  action  to  foreclosure  proceedings  to 
enforce  the  debt.  Commercial  Bank  v. 
Kershner,  120  Cal.  495;  52  Pac.  848.  Where 
a  mortgage  was  given  as  an  additional 
security  for  a  debt  then  being  enforced 
by  an  action  pending,  the  plaintiff  may 
not  proceed  with  such  action  and  then 
foreclose  on  the  balance,  if  there  should 
be  any.  Commercial  Bank  v.  Kershner, 
120  Cal.  495;  52  Pac.  848.  A  mortgagee 
may  attach  property  for  an  unsecured  debt, 
although  he  can  maintain  only  one  action^ 
for  the  recovery  of  the  debt  secured  by 
the  mortgage.  Flores  v.  Stone,  21  Cal. 
App.  105;  131  Pac.  348,  351.  The  holder 
of  a  note  secured  by  a  second  mortgage 
cannot,  after  foreclosure  of  the  prior  mort- 
gage by  a  suit  to  which  he  was  made  a 
party  defendant,  and  in  which  all  his. 
rights  might  have  been  settled,  maintain 
an  action  on  the  note  against  the  maker. 
Brown  v.  Willis,  67  Cal.  235;  7  Pac.  682. 
An  action  cannot  be  maintained  on  a  note 
alone,  unless  its  security  is  valueless. 
Bartlett  v.  Cottle,  63  Cal.  366.  A  personal 
action  upon  a  note  secured  by  a  second 
mortgage  is  not  prohibited  by  this  section, 
after  the  security  of  the  mortgage  has 
been  lost  without  the  fault  of  the  mort- 
gagee, and  through  the  failure  of  the  mort- 
gagor to  pay  the  first  mortgage,  resulting 
in  the  foreclosure  thereof,  and  sale  of  the 
mortgaged  premises  to  pay  the  same.    Sav- 


867 


ONE  ACTION   FOR  DEBT — SUCCESSIVE  ACTIONS,   ETC. 


§726 


inss  Bank  v.  Central  Miirket  Co.,  122  Cal. 
28;  54  Pac.  273;  and  see  Toby  v.  Oregon 
Pacific  K.  K.  Co.,  98  Cal.  490;  33  Pac.  550. 
Where,  by  mistake,  the  mortuagee  does 
not  secure  a  lien  upon  anything,  he  may 
be  allowed  a  personal  action  on  the  note 
alone;  the  rule  that  the  mortgagee  is  per- 
sonally liable  for  the  entire  debt  should 
be  the  same  where  no  lien  is  created  as 
where  it  has  been  lost  without  the  fault 
of  the  mortgagee.  Otto  v.  Long,  127  Cal. 
471;  59  Pac.  895.  A  mortgage  of  property 
in  which  the  mortgagor  neither  has  nor 
acquires  any  interest  creates  no  lien,  and 
cannot  properly  be  foreclosed;  and,  in  such 
case,  it  does  not  violate  the  policy  estab- 
lished by  this  section  to  allow  a  personal 
action  upon  the  note.  Otto  v.  Long,  127 
Cal.  471;  59  Pac.  895.  Where  the  mort- 
gagor had  neither  possession,  nor  any  es- 
tate, title,  or  interest  of  any  kind  or 
character,  in  the  mortgaged  premises, 
when  he  executed  the  mortgage,  and  never, 
at  any  time,  acquired  any,  the  debt  is 
not  one  secured  by  a  lien  upon  real  prop- 
erty; if  the  mortgagor  in  good  faith  as- 
serts a  claim  to  the  property,  or  has  color 
of  title,  or  asserts  an  equity  in  it,  the 
mortgagee  should  foreclose;  but  where  the 
mortgagor  has  no  claim  of  title,  and  there 
is  no  mistake  which  can  be  corrected  in 
a  court  of  equity,  it  does  not  violate  the 
policy  established  by  this  section  to  allow 
a  personal  action  on  the  note.  Otto  v. 
Long,  127  Cal.  471;  59  Pac.  895.  To  in- 
quire whether  there  is  such  property  as 
that  which  the  mortgage  j)urports  to  cover, 
or  whether,  for  any  reason,  it  fails  to 
create  a  lien,  is  not  to  violate  the  policy 
of  the  statute,  nor  the  rule  that,  so  long 
as  there  is  an  unexecuted  lien  on  property 
to  secure  the  debt,  a  personal  action  can- 
not be  maintained.  Otto  v.  Long,  127  Cal. 
471;  59  Pac.  895.  The  relation  of  mort- 
gagor and  mortgagee  is  not  created,  where 
the  vendor  of  the  property  retains  a  lien 
on  the  land  for  portion  of  the  purchase- 
money  remaining  unpaid;  and  there  is  no 
statutory  prohibition  upon  the  right  to  a 
personal  action  to  enforce  the  debt  when 
it  becomes  due.  Longmaid  v.  Coulter,  123 
Cal.  208;  55  Pac.  791.  ' 

Action  where  mortgage  is  on  property 
outside  of  state.  This  section  refers  solely 
to  debts  secured  by  mortgages  of  property 
in  this  state:  it  has  no  application  to 
mortgages  of  property  situated  in  another 
state  or  country.  McGue  v.  Rommel,  148 
Cal.  539;  83  Pac.  1000;  Felton  v.  West, 
102  Cal.  266;  36  Pac.  676.  An  action  can 
be  maintained  here,  upon  a  note  secured  by 
a  mortgage  on  property  out  of  the  state, 
without  a  foreclosure  of  the  mortgage. 
McGue  v.  Rommel,  148  Cal.  539;  83  Pac. 
1000. 

Action  may  be  commenced  when.  A 
written  agreement  by  a  mortgagee  to  ex- 
tend  the   time   of   payment   of   a   note,   in 


consideration  of  the  payment  of  a  large 
])ortioii  of  the  principal,  and  of  a  promise 
to  pay  interest  on  the  balance  monthly 
thereafter,  is  virtually  a  renewal  of  the 
note  and  mortgage  for  the  new  principal 
to  the  date  agreed  upon;  and  an  action 
to  foreclose,  commenced  prior  to  that  date, 
is  proi)erly  dismissed  as  premature.  Sea- 
ton  V.  Fiske,  128  Cal.  549;  61  Pac.  666. 

Foreclosure  as  to  part  of  mortgaged 
premises.  A  mortgagee,  l)y  foreclosing  on 
one  piece  of  land,  of  two  pieces  covered 
by  the  same  mortgage,  waives  his  lien  on 
the  excluded  piece;  hy  the  foreclosure,  the 
mortgage  is  merged  in  the  judgment,  and 
a  new  action  cannot  be  maintained.  Mas- 
carel  v.  Raffour,  51  Cal.  242;  Hall  v. 
Arnott,  SO  Cal.  348;  22  Pac.  200;  Stockton 
Sav.  &  L.  Soc.  V.  Harrold,  127  Cal.  612;  60 
Pac.  165;  Commercial  Bank  v.  Kershner, 
120  Cal.  495;  52  Pac.  848.  Where  a  loan 
is  secured  by  a  mortgage  upon  different 
pieces  of  real  property,  the  lender  may 
foreclose  as  to  one  of  the  securities  only, 
if  he  does  not  seek  a  jiersonal  judgment 
against  the  defendant;  and  while  the  effect 
of  this  would  be  to  waive  the  omitted 
security,  yet  the  lender  is  at  liberty  to 
make  such  waiver  if  he  chooses.  Bull  v. 
Coe,  77  Cal.  54;  11  Am.  St.  Rep.  235;  18 
Pac.  808. 

Successive  actions  to  foreclose.  This 
section  does  not  prohibit  successive  fore- 
closures, when  require<l  by  the  circum- 
stances, for  distinct  debts  secured  by  the 
same  mortgage:  the  power  of  a  court  of 
equity,  in  a  proper  case,  to  direct  a  sale 
of  the  property  on  foreclosure  of  the  mort- 
gage, saving  from  the  effect  of  such  sale 
a  further  lien  secured  by  the  same  or 
some  other  encumbrance,  is  fully  estab- 
lished. Stockton  Sav.  &  L.  Soc.  v.  Harrold, 
127  Cal.  612;  60  Pac.  165.  Where  a  pre- 
vious attempt  to  foreclose  a  mortgage  was 
void,  it  does  not  operate  as  a  waiver  of 
the  mortgage  lien,  nor  of  the  right  to 
foreclose  the  same  in  a  second  action. 
Ludwig  V.  Murphy,  143  Cal.  473;  77  Pac. 
150.  Where  two  successive  mortgages  are 
given  to  secure  the  same  debt,  and,  by  mis- 
take, the  first  alone  is  foreclosed,  which 
covers  less  property  than  the  second,  and 
is  insufficient  to  pay  the  debt,  the  holder 
of  the  mortgage  can  maintain  a  suit  to 
set  aside  the  judgment  of  foreclosure,  and 
for  a  foreclosure  of  the  second  mortgage, 
as  against  a  subsequent  judgment  creditor. 
Gerig  v.  Loveland,  130  CaL  512;  62  Pac. 
830. 

Rights  of  and  actions  by  junior  mort- 
gagees. The  second  mortgagee  is  not  re- 
quired to  bring  suit  to  recover  his  debt 
at  such  time  as  the  first  mortgagee  may 
see  fit  to  do  so,  especially  where  it  is  ap- 
parent that,  should  he  foreclose,  he  would 
receive  nothing;  and  the  mortgagor  can- 
not be  heard  to  complain  that  the  secoml 
mortgagee  did  not  so  bring  suit.    Savings 


726 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


868 


Bank  v.  Central  Market  Co.,  122  Cal.  28; 
54  Pac.  273.  The  holder  of  a  second  mort- 
gage upon  two  distinct  tracts  may  come 
in  by  way  of  cross-complaint  in  an  action 
to  foreclose  the  first  mortgage  upon  one 
of  such  tracts  only,  and  have  his  mort- 
gage on  the  other  and  separate  tract  fore- 
closed in  the  same  action.  Stockton  Sav. 
&  L.  Soc.  V.  Harrold,  127  Cal.  612;  60  Pac. 
165;  Newhall  v.  Bank  of  Livermore,  136 
Cal.  533;  69  Pac.  248.  Where  a  subsequent 
mortgagee,  made  a  party  defendant  in  an 
action  to  foreclose  the  prior  mortgage,  filed 
an  answer  setting  up  iiis  mortgage  cover- 
ing the  tract  of  laud  involved  in  the  ac- 
tion, and  also  another  tract,  and  prayed 
that  if  any  surplus  should  remain  after 
applying  the  proceeds  of  the  sale  of  the 
tract  involved  in  the  action  to  the  pay- 
ment of  the  first  mortgage,  it  be  applied 
to  the  payment  of  the  second  mortgage,  a 
judgment  foreclosing'  the  first  mortgage  is 
not  a  bar  to  another  action  by  him  to 
foreclose  his  mortgage  as  against  the  other 
tract  not  involved  in  the  first  action.  Brill 
V.  Shivelv,  93  Cal.  674;  29  Pac.  324;  Pauly 
V.  Rogers,  121  Cal.  294;  53  Pac.  808.  A 
junior  mortgagee,  made  a  party  defendant 
in  foreclosure,  may  plead  his  mortgage, 
and  ask  that  any  surplus  derived  from  the 
sale  of  the  property  subject  to  both  mort- 
gages be  applied  as  a  credit  upon  his  note; 
and  by  so  doing  he  in  no  sense  brings  an 
action  to  foreclose  his  mortgage,  and  is 
not  barred  from  thereafter  bringing  an  ac- 
tion to  foreclose  the  mortgage  upon  other 
property  included  therein,  which  was  not 
subject  to  the  prior  mortgage.  Pauly  v. 
Eogers,  121  Cal.  294;  53  Pac.  808;  and  see 
Brill  V.  Shively,  93  Cal.  674;  29  Pac. 
324.  A  junior  mortgagee  need  not  answer 
or  set  up  his  claim,  by  cross-complaint 
or  otherwise,  in  foreclosure  proceedings 
brought  bj^  the  holder  of  a  prior  lien,  al- 
though made  a  party  defendant.  Greeue- 
baum  V.  Davis,  131  Cal.  146;  82  Am.  St. 
Rep.  338;  63  Pac.  165;  Savings  Bank  v. 
Central  Market  Co.,  122  Cal.  28;  54  Pac. 
273. 

Action  on  assigned  mortgage.  An  action 
to  foreclose  a  mortgage  which  has  been 
assigned  as  collateral  security  for  the  prin- 
cipal debt,  is  not  an  action  for  the  recovery 
of  the  principal  debt,  but  to  preserve  and 
enforce  the  security,  which  is  a  duty  im- 
posed upon  the  creditor  by  the  contract 
of  hypothecation,  and  the  principal  debt 
need  not  be  enforced  in  such  action.  Mer- 
ced Security  Sav.  Bank  v.  Casaccia,  103 
Cal.  641;  37  Pac.  648;  McArthur  v.  Magee, 
114  Tal.  126;  45  Pac.  inns. 

Negotiability  of  note  secured  by  mort- 
gage. A  nutc,  though  negotial)lc  in  form, 
is,  in  law,  not  negotiable,  if  secured  by  a 
mortgage  of  even  date,  which  makes  it 
payable  primarily  out  of  a  peculiar  fund, 
at  least  as  against  one  having  knowledge 
of   the   mortgage.    Hays   v.   Plummer,    126 


Cal.  107;  77  Am.  St.  Rep.  153;  58  Pac.  447. 
A  note  secured  by  mortgage,  which  pro- 
vides for  attorneys'  fees  in  case  of  fore- 
closure, is  not  negotiable,  within  the  law 
merchant,  nor  was  it  so  under  the  Civil 
Code,  until  the  amendment  to  §  3088  of 
that  code  in  1905.  Meyer  v.  Weber,  133 
Cal.  681;  65  Pac.  1110.  A  note  secured  by 
a  mortgage  on  land,  both  executed  at  the 
same  time,  is  not  negotiable,  where  a  pur- 
chaser takes  it  with  knowledge  of  the 
mortgage;  and  a  recital  in  the  note  that 
it  is  so  secured  is  notice  of  the  fact. 
National  Hardware  Co.  v.  Sherwood,  165 
Cal.  1;  130  Pac.  881. 

Jurisdiction  of  court.  The  court  has 
no  jurisdiction  to  render  judgment  in  fore- 
closure proceedings  on  lands  lying  outside 
of  the  county  in  which  suit  is  brought, 
although  the  description  of  the  lands  in 
the  mortgage  erroneously  recites  that  they 
are  in  such  county.  Rogers  v.  Cady,  104 
Cal.  288;  43  Am.  St.  Rep.  100;  38  Pac.  81. 
The  jurisdiction  of  the  court,  in  actions  of 
foreclosure,  over  the  parties  and  the  sub- 
ject-matter continues  until  the  foreclosure 
is  completed  by  failure  to  redeem;  and  it 
has  power  to  vacate  an  irregular  sale  be- 
fore the  expiration  of  the  time  for  re- 
demption, as  against  the  purchaser,  who, 
by  ins  bid,  submits  himself  to  it.  Van 
Loben  Sels  v.  Bunnell,  131  Cal.  489;  63 
Pac.  773.  In  an  action  for  the  foreclosure 
of  a  mortgage,  the  court  has  merely  juris- 
diction to  foreclose  the  mortgage  sued  on 
and  the  rights  of  all  parties  holding  under 
and  subject  thereto:  it  has  no  jurisdiction 
to  reach  over  into  a  separate  partition  suit, 
begun  prior  to  the  execution  of  the  mort- 
gage by  one  of  the  tenants  in  common 
who  were  parties  to  the  suit,  and  to  take 
control  and  jurisdiction  thereof  in  the  in- 
terest of  the  mortgagee.  Towle  v.  Quinn, 
141  Cal.  382;  74  Pac.  1046.  Where  the 
maker  of  a  note  or  bill  of  exchange  re- 
sides in  a  remote  country,  or  in  a  different 
state,  and  it  is  not  shown  that  he  has 
any  property  subject  to  seizure  and  sale 
within  this  state,  such  special  circum- 
stances are  presented  as  to  authorize  the 
holder  of  the  instruments  given  in  pledge 
to  resort  to  a  court  of  equity  for  a  fore- 
closure and  sale.  Donohoe  v.  Gamble,  38 
Cal.  340;  99  Am.  Dec.  399. 

Allegation  of  complaint.  A  note  and 
mortgage,  set  out  in  full  as  an  exhibit 
in  the  complaint,  are  sufficiently  referred 
to  by  the  allegation  that  the  defendant 
executed  to  the  plaiiitiff  a  certain  promis- 
sory note  and  a  certain  mortgage  to  secure 
the  same,  and  that  a  copy  of  said  note  is 
set  out  in  said  mortgage,  and  said  mort- 
gage is  hereto  attached  and  marked  "Ex- 
hibit  B."  Savings  Bank  v.  Burns,  104  Cal. 
473;  38  Pac.  102;  and  see  Ward  v.  Clay, 
82  Cal.  502;  23  Pac.  50;  Whitby  v.  Rowell, 
82  Cal.  635;  23  Pac.  40.  A  complaint  upon 
a  promissory  note  is  not  rendered  insufli- 


869 


ALLEGATION  OF  COMPLAINT — COUNSEL  FEES — DEFENDANTS. 


§726 


eient  to  state  a  cause  of  action,  merely 
because  of  a  recital  contained  in  the  copy 
of  the  note  set  out  in  the  coni[)laint,  that 
the  note  is  secured  by  a  niortj^ajic  of  even 
date  therewith,  there  beiufj;  no  averment 
in  the  complaint  that  the  note  was  secureil 
by  a  morti;age,  and  the  recital  not  beinj^ 
the  equivalent  of  such  an  averment. 
Hibernia  tSav.  &  L.  Soc.  v.  Thornton,  117 
Cal.  481;  49  Pac.  573.  An  averment  that 
the  plaintiff  is  the  owner  of  the  note  is 
but  the  averment  of  a  conclusion  of  law, 
and  not  the  averment  of  an  issuable  fact; 
it  is  immaterial,  and  may  be  omitted, 
where  the  concdusion  of  law  necessarily 
follows  from  the  other  facts  stated,  and 
the  denial  of  this  averment  of  a  conclusion 
of  law  does  not  raise  a  material  issue. 
Wedderspoon  v.  Rogers,  32  Cal.  569;  Poor- 
man  v.  Mills,  35  Cal.  118;  95  Am.  Dee. 
90;  Monroe  v.  Fohl,  72  Cal.  568;  14  Pac. 
514;  Bank  of  Shasta  v.  Boyd,  99  Cal.  604; 
34  Pac.  337.  In  an  action  to  foreclose 
a  mortgage  securing  a  note,  the  breach  of 
the  contract  to  pay  the  note  is  of  the 
essence  of  the  cause  of  action,  and  must 
be  alleged:  an  averment  that  "there  is  now 
due  and  owing  to  the  plaintiff"  a  specified 
sum  is  but  the  averment  of  a  conclusion 
of  law,  and  not  of  a  fact,  and  is  not  the 
equivalent  of  an  averment  of  non-pavment. 
Ryan  v.  Holliday,  110  Cal.  335;  42  Pac. 
891.  Where  the  complaint  merely  avers 
that  "the  whole  of  said  note  is  owing  from 
said  defendant  to  said  plaintiff,"  without 
any  averment  of  the  fact  of  non-payment, 
it  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.  Knox  v.  Buckman 
Contracting  Co.,  139  Cal.  598;  73  Pac.  428; 
and  see  Penrose  v.  Winter,  135  Cal.  289; 
67  Pac.  772.  An  averment  in  the  com- 
plaint, that  a  specified  sum  "is  now  due 
and  owing,"  though  the  statement  of  a 
legal  conclusion,  in  which  the  material  fact 
of  non-payment  is  implied,  is  sufficient 
to  sustain  a  judgment  by  default.  Penrose 
V.  Winter,  135  Cal.  289"^;  67  Pac.  772.  A 
complaint  which  sets  out  the  note  and 
mortgage,  showing  on  their  face  that  the 
principal  was  due  and  payable  long  before 
the  commencement  of  the  action,  and 
which  avers  that  no  part  of  the  principal 
sum  has  been  paid,  and  that  it  is  unpaid, 
and  is  owing  by  defendant  to  the  jilain- 
tiff,  sufficiently  shows  that  the  principal 
sum  was  due  at  the  commencement  of  the 
action.  Luddy  v.  Pavkovich,  137  Cal.  284; 
70  Pac.  177.  In  an  action  to  foreclose  a 
mortgage,  by  the  indorsee  of  a  note  pay- 
able "on  or  before  two  years  after  date," 
with  interest  payable  semi-annually,  a 
complaint  which  show's  an  indorsement 
and  delivery  by  the  payee  to  the  ])laintiff 
less  than  thirt}'  days  after  the  date  of  the 
note  and  continuous  ownership  of  the  note 
and  mortgage  by  the  plaintiff  thereafter, 
and  alleges  payment  of  the  interest  for 
one   year,   and   that   the   principal   and   in- 


terest thereafter  accruing  according  to  the 
terms  of  the  note  "still  remains  due  ami 
uni>aid  from  the  defendant  (the  mort- 
gagor) to  this  jdaintiff,"  is  suflicient  to 
sujiport  a  judgment  for  the  plaintiff 
against  the  mortgagor.  Schwind  v.  Hall, 
129  Cal.  40;  Gl  Pac.  573. 

Counsel  fees  alleged  how.  The  com- 
j)laint  need  not  aver  that  the  counsel  fee 
claimed  is  reasonable,  nor  need  there  be  a 
finding  to  that  effect:  the  fee  is  a  mere 
Incident  to  the  action.  McNamara  v.  Oak- 
land Bldg.  etc.  Ass'n,  131  Cal.  336;  63  Pac. 
670;  and  see  Carriere  v.  Minturn,  5  (Jal. 
435;  Monroe  v.  Fohl,  72  Cal.  568;  14  Pac. 
514;  Rapp  v.  Spring  Valley  Gold  Co.,  72 
Cal.  532;  16  Pac.  325;  First  Nat.  Bank  v. 
Holt,  87  Cal.  158;  25  Pac.  272;  White  v. 
Allatt,  87  Cal.  245;  25  Pac.  420.  Nor  is 
it  necessary  to  allege  non-payment  of  coun- 
sel fees  which  have  neither  been  earneil 
in  full  nor  yet  fixed  by  the  court:  the 
amount  of  the  fees,  within  the  limits  of 
the  contract  contained  in  the  mortgage, 
is  to  be  determined  by  the  court.  Damon 
v.  Quinn,  143  Cal.  75;  76  Pac.  818.  A 
prayer  that  the  proceeds  of  the  sale  be 
applied  to  the  payment  of  the  amount  due 
on  the  note  and  mortgage,  with  interest, 
disbursements,  costs,  and  counsel  fees, 
where  the  complaint  alleges  that  the  mort- 
gage provides  that  in  case  of  foreclosure 
the  plaintiff  shall  be  entitled  to  a  certain 
per  cent  as  counsel  fees,  is  sufficient,  and 
counsel  fees  should  be  allowed  thereon, 
though  the  defendant  suffers  default. 
Thrasher  v.  Moran,  146  Cal.  683;  81  Pac. 
32. 

Demurrer.  In  an  action  brought  on  the 
note  alone,  the  defendant  may  demur  to 
the  complaint,  on  the  ground  that  it  is 
doubtful  or  uncertain  therefrom  whether 
in  fact  the  note,  which  was  set  forth  by 
copy,  and  which  stated  that  it  was  secured 
by  mortgage,  was  in  fact  secured  by 
mortgage;  but,  in  the  absence  of  such  de- 
murrer, the  complaint  is  sufficient  to  sus- 
tain a  judgment  by  default  for  the  amount 
of  the  note;  the  allegations  of  the  answer 
cannot  be  considered  in  determining  the 
matter.  Hibernia  Sav.  &  L.  Soc.  v.  Thorn- 
ton, 117  Cal.  481;  49  Pac.  573. 

Parties  defendant.  The  only  proper  or 
necessary  jtarties  defendant  to  a  suit  of 
foreclosure  are  the  mortgagor  and  those 
claiming  an  interest  in  the  property,  de- 
rived subsequently  to  the  date  of  the 
mortgage;  and  titles  adverse  to  that  of 
the  mortgagor,  or  superior  to  that  covered 
by  the  mortgage,  are  not  proper  subjects 
for  determination  in  such  action.  Beronio 
V.  Ventura  County  Lumber  Co.,  129  Cal. 
232;  79  Am.  St.  Rep.  118;  61  Pac.  958;  and 
see  San  Francisco  v.  Lawton,  18  Cal.  465; 
79  Am.  Dec.  187;  Croghan  v.  Minor,  53 
Cal.  15;  Marlow  v.  Barlew,  53  Cal.  456; 
Cody  V.  Bean,  93  Cal.  578;  29  Pac.  223; 
Sicliler  v.  Look,  93  Cal.  600;  29  Pac.  220; 


5  726 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


870 


Williams  v.  Cooper,  124  Cal.  666;  57  Pac. 
577;  Murray  v.  Etehepare,  129  Cal.  318; 
61  Pac.  930;  Peachy  v.  Witter,  131  Cal. 
316;  63  Pac.  468.  Where  the  interest  of  a 
defeudant  in  foreclosure  proceedings  is  ad- 
verse or  superior  to  that  covered  by  the 
mortgage,  the  proper  action  of  the  court 
is  to  dismiss  him  from  the  suit.  Beronio 
V.  Ventura  County  Lumber  Co.,  129  Cal. 
232;  79  Am.  St.  Rep.  118;  61  Pac.  958; 
and  see  Ord  v.  Bartlett,  83  Cal.  428;  23 
Pac.  705;  Codv  v.  Bean,  93  Cal.  578;  29 
Pac.  223;  Hoppe  v.  Hoppe,  104  Cal.  94;  37 
Pac.  894.  Under  a  statute  allowing  a 
creditor  to  enforce  a  mortgage  against  the 
mortgagor  alone,  the  owner  of  the  mort- 
gaged property  at  the  time  of  foreclosure 
must  be  made  a  party.  Skinner  v.  Buck, 
29  Cal.  253.  A  prior  lien-holder  is  a  proper 
though  not  a  necessary  party  to  an  action 
to  foreclose  a  mortgage;  and  when  made 
a  party,  he  may  seek  the  foreclosure  of  his 
lien  by  cross-complaint.  Van  Loben  Sels 
V.  Bunnell,  131  Cal.  489;  63  Pac.  773.  The 
holders  of  junior  liens  must  be  made  par- 
ties defendant  in  foreclosure  proceedings, 
in  order  to  make  the  foreclosure  effectual; 
and  this  implies  that  their  rights,  when 
brought  into  court,  shall  be  adjudicated, 
and  provision  made  for  them  in  the  decree 
of  foreclosure  by  a  proper  disposition  of 
the  surplus  proceeds  of  the  sale  of  the 
mortgaged  premises.  Hibernia  Sav.  &  L. 
Soc.  V.  London  etc.  Fire  Ins.  Co.,  138  Cal. 
257;  71  Pac.  334.  The  indorsers  of  a  note 
secured  by  mortgage  are  properly  joined 
as  parties  defendant  in  foreclosure  pro- 
ceedings. Hubbard  v.  University  Bank, 
125  Cal.  684;  58  Pac.  297.  Those  acquiring 
title  to  the  mortgaged  property  subse- 
quently to  the  commencement  of  the  fore- 
closure proceedings,  in  the  face  of  the 
recorded  lis  pendens,  or  with  actual  notice 
of  the  suit,  are  not  necessary  parties  to 
such  proceedings.  Hibernia  Sav.  &  L. 
Soc.  V.  Cochran,  141  Cal.  653;  75  Pac.  315. 
A  purchaser  who  acquires  title  under  a 
sale  to  satisfy  the  lieu  of  a  street  assess- 
ment, is  not  a  necessary  party  to  an  action 
to  foreclose  a  mortgage  on  the  property; 
the  title  acquired  by  him  is  superior  and 
hostile  to  the  mortgage,  and  cannot  be  liti- 
gated in  the  action  of  foreclosure.  Wilson 
V.  California  Bank,  121  Cal.  630;  54  Pac. 
119.  The  heirs  of  a  deceased  mortgagor 
are  not  necessary  parties  defendant  in  an 
action  to  foreclose:  it  is  sufficient  to  make 
the  administrator  a  party  defendant.  Fin- 
ger V.  McCaughey,  119  Cal.  59;  51  Pac. 
13;  and  see  Bayly  v.  Muehe,  65  Cal.  345;  3 
Pac.  467;  4  Pac.  4^:6;  Monterey  County  v. 
Cushing,  83  Cal.  507;  23  Pac.  700;  Collins 
V.  Scott,  100  Cal.  446;  34  Pac.  1085.  In 
foreclosure  proceedings,  only  those  persons 
need  be  made  defendants  whose  interests 
appear  of  record.  Spaulding  v.  Howard, 
121  Cal.  194;  53  Pac.  563.  The  holder  of 
a   deed,   not   recorded   wheu   the   action   to 


foreclose  was  commenced,  is  not  necessary 
party  defendant,  although  such  deed  was 
executed  prior  to  the  commencement  of  the 
action.  Hibernia  Sav.  &  L.  Soc.  v.  Cochran, 
141  Cal.  653;  75  Pac.  315.  The  holder  of 
an  unrecorded  deed,  made  subsequently  to 
the  mortgage,  need  not  be  made  a  party 
to  foreclosure  proceedings;  but  such  pro- 
ceedings are  conclusive  against  him,  as 
though  he  had  been  made  a  party  to  the 
action.  Breedlove  v.  Norwich  Union  Fire 
Ins.  Soc,  124  Cal.  164;  56  Pac.  770.  The 
record  of  the  deed,  and  not  actual  notice, 
determines  the  right  of  the  grantee  to  be 
made  a  party  to  foreclosure  proceedings, 
in  order  to  be  bound  by  the  decree.  Fili- 
pini  v.  Trobock,  134  Cal.  441;  66  Pac.  587. 
A  purchaser  of  the  mortgaged  property, 
prior  to  the  action  of  foreclosure,  and 
subject  to  the  mortgage,  who  fails  to  re- 
cord his  deed  prior  to  the  commencement 
of  such  action,  and  of  whose  interest  the 
mortgagee  had  no  notice  at  such  time,  ia 
not  a  necessary  party,  in  the  sense  that 
it  is  necessary  to  bring  him  in  so  that  a 
foreclosure  decree  effectual  as  against  him 
may  be  rendered,  as,  for  all  the  purposes 
of  obtaining  jurisdiction,  he  is  fully  repre- 
sented by  the  mortgagor.  Hibernia  Sav.  & 
L.  Soc.  v.  Cochran,  141  Cal.  653;  75  Pac. 
315.  A  party,  who  was  the  holder  of  an 
unrecorded  deed  from  the  mortgagor  when 
foreclosure  suit  was  commenced,  need  not 
be  made  a  party  thereto,  and  is  concluded 
by  the  decree;  and  evidence  is  inadmis- 
sible, in  his  behalf,  to  show  that  the 
plaintiff  had  actual  knowledge  of  the  unre- 
cor<led  deed  before  such  suit  was  com- 
menced. Hager  v.  Astorg,  145  Cal.  548; 
104  Am.  St.  Rep.  68;  79  Pac.  68;  Shurtleff 
V.  Kehrer,  163  Cal.  24;  124  Pac.  724.  A 
subsequent  purchaser,  whose  deed  was  duly 
recorded  prior  to  the  commencement  of 
an  action  to  foreclose  an  antecedent  mort- 
gage, but  who  was  not  made  a  party  to 
the  action,  is  not  bound  by  the  foreclosure 
decree.  Shurtleff  v.  Kehrer,  163  Cal.  24; 
124  Pac.  724.  In  an  action  to  foreclose 
a  mortgage  given  by  an  heir  upon  his  in- 
terest in  certain  real  property  owned  by 
the  deceased,  which  was  thereafter  sold 
under  order  of  probate  court,  the  purchaser 
at  such  probate  sale,  being  made  a  party, 
is  entitled  to  recover  his  costs,  having 
taken  the  property,  by  such  sale,  dis- 
charged from  encumbrance.  Gutter  v.  Dal- 
lamore,  144  Cal.  665;  79  Pac.  383. 

Answer.  Where  the  complaint  in  an 
action  of  foreclosure  contains  a  copy  of 
the  note  and  mortgage  sued  upon,  and  the 
answer  is  unverified,  the  genuineness  and 
due  execution  of  those  instruments  are  ad- 
mitted. Waldrip  v.  Black,  74  Cal.  409; 
16  Pac.  226.  An  answer  denying  that  the 
plaintiff  was  the  owner  and  holder  of  the 
note  and  mortgage,  raises  no  issue;  that 
being  the  only  denial,  judgment  upon  the 
I)leadings  is  proper.    Clemens  v.  Luce,   101 


871 


INTERVENTION — EVIDENCE JUDGMENT INTEREST. 


§726 


Cal.  432;  35  Pac.  1032;  ami  see  Bank  of 
Shasta  V.  Boyd,  99  f'al.  HI)};  31   I'ac.  337. 

Cross-demand  against  mortgagor.  A 
simple  contract  debt,  due  from  a  mortgagee 
to  the  mortgagor,  is  not  available  as  a 
cross-demand:  such  indebtedness  cannot  be 
mutually  compensated  under  this  section. 
Moore  v.  Gould,  151  Cal.  723;  91  Pac.  61G. 

Intervention.  An  intervention  is  not 
permissible  to  set  up  an  adverse  claim 
of  title  to  part  of  the  mortgaged  prop- 
erty, in  opi»osition  to  that  of  the  mort- 
gagor and  the  mortgagee,  in  an  equitable 
action  of  foreclosure.  Peachy  v.  Witter, 
131  Cal.  316;  63  Pac.  468;  and  see  Mc- 
Comb  V.  ypangler,  71  Cal.  418;  12  Pac.  347; 
Ord  V.  Bartlett,  83  Cal.  428;  23  Pac.  705; 
Emeric  v.  Alvarado,  90  Cal.  444;  25  Pac. 
356;  Cody  v.  Bean,  93  Cal.  578;  29  Pac. 
223;  Sichler  v.  Look,  93  Cal.  600;  29  Pac. 
220;  Williams  v.  Cooper,  124  Cal.  666;  57 
Pac.  577;  Murray  v.  Etchepare,  129  Cal. 
31S;  61  Pac.  930. 

Evidence.  In  an  action  of  foreclosure 
against  the  original  mortgagor,  an  ac- 
knowledgment of  the  mortgage  is  not 
necessary  to  give  it  validity,  and  the  note 
and  unacknowledged  mortgage  are  admis- 
sible in  evidence  against  him.  West  v. 
Hears,  17  Cal.  App.  718;  121  Pac.  700. 
The  fact  that  the  original  note  was  sur- 
rendered, and  marked  "Paid"  on  its  face, 
is  not  conclusive  of  the  extinguishment  of 
the  debt  which  the  mortgage  was  given 
to  secure,  where  the  original  note  was  re- 
placed by  a  new  note,  and  where  the  mort- 
gage given  to  secure  it  was  allowed  to 
stand  as  before;  it  may  be  shown  that 
the  original  debt  was  not,  in  fact,  extin- 
guished. Bonestell  v.  Bowie,  128  Cal.  511; 
61  Pac.  78;  and  see  Welch  v.  Allington, 
23  Cal.  322;  Steinhart  v.  National  Bank, 
94  Cal.  362;  28  Am.  St.  Rep.  132;  29  Pac. 
717. 

Judgment  to  contain  what.  The  judg- 
ment in  foreclosure  proceedings  need  only 
contain  a  statement  of  the  amount  due  the 
plaintiff,  a  designation  of  the  defendants 
who  are  personally  liable  for  the  payment 
of  the  debt,  and  a  direction  that  the  mort- 
gaged premises,  or  so  much  thereof  as 
may  be  necessary,  be  sold  according  to 
law,  and  the  proceeds  applied  to  the  pay- 
ment of  the  expenses  of  the  sale,  the  costs 
of  the  action,  and  the  debt:  everything 
else  is  ministerial,  and  is  expressly  regu- 
lated by  statute,  which  is  not  made  clearer 
or  more  binding  by  being  copied  in  the 
judgment.  Leviston  v.  Swan,  33  Cal.  480; 
Hooper  v.  McDade,  1  Cal.  App.  733;  82 
Pac.  1116.  In  a  foreclosure  suit,  where 
judgment  is  taken  by  default,  the  decree 
can  give  no  relief  bej'ond  that  demanded 
in  the  bill.    Rauu  v.  Reynolds,  rl  Cal.  14. 

Judgment  on  the  pleadings.  A  judg- 
ment for  the  defendant,  on  the  pleadings, 
cannot  be  granted  in  an  action  brought  on 
the    note    alone,    although    the    note    was 


secured  by  mortgage,  where  the  complaint 
does  not  set  forth  facts  showing  that  the 
note  was  so  secureit:  an  answer  setting 
forth  such  facts  is  not  sufHcient.  Iliberuia 
Sav.  &  L.  Soc.  V.  Thornton,  117  Cal.  481; 
49  Pac.  573. 

Judgment  for  costs.  The  action  of  the 
clerk  in  inserting,  in  a  decree  of  fore- 
closure, the  amount  of  costs  as  claimed 
by  the  plaintiff,  before  the  same  have 
been  taxed  and  ascertained,  is  a  mere  cleri- 
cal misprision,  not  affecting  the  validity 
of  the  decree  in  other  respects,  nor  invali- 
dating the  order  of  sale  issued  thereon, 
nor  affecting  the  validity  of  the  sale  there- 
under. Janes  v.  Bullard,  107  Cal.  130;  40 
Pac.  108. 

Interest.  Interest  due  and  payable  on 
a  note  secured  by  mortgage,  is  a  debt 
secured  by  the  mortgage.  Van  Loo  v.  Van 
Aken,  104  Cal.  269;  37  Pac.  925.  That  a 
mortgagee  cannot  foreclose  for  interest 
in  arrears,  because  there  is  no  express 
agreement  that  he  may  do  so,  is  opposed 
to  the  current  of  authority  and  to  the 
reasonable  construction  of  the  statute. 
Van  Loo  v.  Van  Aken,  104  Cal.  269;  37 
Pac.  925;  and  see  Yoakam  v.  White,  97 
Cal.  286;  32  Pac.  238.  Where  the  note 
provides  for  the  payment  of  interest  semi- 
annually, and  the  mortgage  provides  that 
upon  default  in  the  payment  thereof  the 
mortgagee  may  cause  the  premises  to  be 
sold,  the  mortgagee  has  the  right  to  bring 
an  action  of  foreclosure  upon  default  in 
the  payment  of  interest,  although  the  note 
does  not  provide  for  such  default.  Phelps 
V.  Mayers,  126  Cal.  549;  58  Pac.  1048; 
and  see  Yoakam  v.  White,  97  Cal.  286;  32 
Pac.  238.  Where  the  provision  of  the  note 
is,  that,  upon  a  default  in  paying  interest, 
the  principal  shall  become  due  at  the  elec- 
tion of  the  holder,  the  assertion  of  such 
election  merely  puts  the  holder  in  the  posi- 
tion of  the  holder  of  a  note  which  de- 
clares that  upon  default  in  interest  the 
whole  principal  shall  immediately  become 
due;  and  the  bringing  of  a  foreclosure  suit 
by  the  holder  does  not  put  it  out  of  his 
power  to  waive  the  penalty,  by  accepting 
a  payment  of  all  interest  due  and  dismiss- 
ing the  action.  California  Sav.  &  L.  Soc. 
V.  Culver,  127  Cal.  107;  59  Pac.  292. 

Judgment  for  Interest  only.  Where  a 
foreclosure  suit  is  begun  upon  default  in 
payment  of  interest,  in  accordance  with  a 
provision  therefor  in  the  mortgage,  which 
did  not  provide  for  maturity  of  the  debt 
upon  such  default,  the  judgment  can  only 
provide  for  a  sale  to  pay  the  interest  then 
found  to  be  due;  and  the  remedy  for  sub- 
sequent defaults  in  the  payment  of  prin- 
cipal or  interest  is,  under  §  728,  post,  to 
move  for  a  subsequent  order  or  orders  of 
sale  of  the  mortgaged  premises  therefor. 
Byrne  v.  Hoag,  126  Cal.  283;  58  Pac.  688. 
A  judgment  for  the  principal  of  a  prom- 
issory note  secured  by  mortgage,  before  it 


§T2b 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


872 


becaniL  .lue.  and  an  order  for  the  sale  of 
the  mortgaged  premises  for  its  payment, 
is  erroneous;  judgment  may  be  had  for 
the  sale  of  so  much  of  the  premises  as  may 
be  necessary  to  satisfy  the  interest  due. 
Hunt  V.  Dohr.-i.  39  Cal.  304. 

Counsel  fess  fixed  and  allowed  how. 
Attorneys'  fees  are  properly  allowed,  for 
the  same  reason  that  costs  are  allowed,  as 
a  necessary  incident  to  the  judgment. 
Eapp  V.  Spring  Valley  Gold  Co.,  74  Cai. 
532;  16  Pac.  325.  Counsel  fees  are  not 
recoverable  as  costs;  and  a  special  prayer 
for  costs  does  not  include  counsel  fees,  nor 
does  a  stipulation  in  the  mortgage,  making 
counsel  fees  a  charge  secured  by  the  mort- 
gage, make  such  charge  part  of  the  costs 
of  the  action.  Brooks  v.  Forrington,  117 
Cal.  219;  48  Pac.  1073.  It  is  not  neces- 
sary to  the  allowance  of  counsel  fees  that 
the  plaintiff  should  have  actually  paid  or 
expressly  agreed  to  pay  such  to  his  coun- 
sel: an  implied  agreement  is  sufficient. 
Kapp  V.  Spring  Valley  Gold  Co.,  74  Cal. 
535;  16  Pac.  325.  Where  an  attorney  re- 
ceived a  regular  salary  for  all  his  services 
rendered  to  the  plaintiff,  and  the  plaintiff 
has  not  agreed  or  become  liable  to  pay 
him  any  compensation  for  his  services  in 
foreclosure  proceedings,  the  plaintiff  is  not 
entitled  to  an  allowance  for  counsel  fees, 
the  attorney  not  being  entitled  to  receive 
such  fees  for  himself.  Bank  of  Woodland 
V.  Treadwell,  55  Cal.  379;  Eapp  v.  Spring 
Valley  Gold  Co.,  74  Cal.  532;  16  Pac.  325. 
Where  the  note  secured  by  the  mortgage 
provides  for  the  payment  of  attorneys'  fees 
not  provided  for  in  the  mortgage,  and  does 
not  provide  in  terms  for  the  right  to  bring 
an  action  before  its  maturity,  that  right 
being  created  by  the  mortgage  alone,  and 
limited  to  a  foreclosure  of  the  mortgage, 
the  holder  cannot  recover  judgment  for  the 
attorneys'  fees  provided  for  in  the  note, 
without  giving  notice  of  his  option  to 
claim  the  whole  amofint  to  be  due  before 
bringing  suit.  Clemens  v.  Luce,  101  Cal. 
432;  35  Pac.  1032.  The  court  has  no  power 
to  make  a  greater  allowance  for  counsel 
fees  than  that  specified  in  the  mortgage 
(Monroe  v.  Fohl,  72  Cal.  568;  14  Pac.  514); 
or  in  the  note  secured  by  the  mortgage. 
Hewitt  V.  Dean,  91  Cal.  \5;  27  Pac.  423. 
Where  the  mortgage  provides  for  a  rea- 
sonable counsel  fee  to  be  fixed  by  the 
court  in  case  of  foreclosure,  the  duty  of 
fixing  the  amount  of  compensation  is  cast 
on  the  court,  and-  no  evidence  of  the  value 
of  the  services  is  necessary.  Woodward  v. 
Brown,  119  Cal.  283;  63  Am.  St.  Rep. 
108;  51  Pac.  2;  Hotaling  v.  Monteith,  128 
Cal.  556;  61  Pac.  95.  In  fixing  an  attor- 
ney's fee  in  foreclosure  proceedings,  the 
extent  of  the  responsibility  assumed  by 
the  attorney,  by  reason  of  the  amount 
involved,  is  to  be  considered.  Patten  v. 
Pepper  Hotel  Co.,  153  Cal.  460;  96  Pac. 
296. 


Counsel  fees  lien  on  mortgaged  prem- 
ises when.  Where  the  mortgage  merely 
provides  security  for  the  payment  of  the 
principal  and  interest  specifie<l  in  the  note, 
and  does  not  provide  for  securing  the  pay- 
ment of  any  attorney's  fee,  such  fee  can- 
not become  a  lien  on  the  land  nor  be 
provided  for  in  the  decree  of  foreclosure. 
Clemens  v.  Luce,  101  Cal.  432;  35  Pac.  1032. 
In  an  action  to  foreclose  a  mortgage,  a 
provision  for  counsel  fees  therein  con- 
tained cannot  be  charged  as  a  lien  upon 
the  land,  unless  expressly  so  charged  bj'' 
the  terms  of  the  mortgage;  and  if  not  so 
charged,  the  fees  are  in  the  nature  of 
special  damage,  which  may  be  pleaded  and 
recovered  against  the  mortgagor.  Klokke 
V.  Escailler,  124  Cal.  297;  56  Pac.  1113. 
Where  a  note,  secured  by  deed  of  grant, 
contains  an  agreement  for  attorneys'  fees 
in  case  suit  is  brought,  and  a  copy  of  the 
note  is  set  out  in  the  complaint,  following 
which  is  an  allegation  that  the  conveyance 
of  the  land  was  made  to  secure  the  pay- 
ment of  the  "said  note,"  the  term  "said 
note"  includes  the  contract  to  pay  attor- 
neys' fees,  as  well  as  the  principal  and 
interest  of  the  note;  and  it  is  proper  not 
only  to  give  judgment  for  attorneys'  fees, 
but  also  to  make  them  a  lien  upon  the 
mortgaged  premises.  County  Bank  v.  Gold- 
tree,  129  Cal.  160;  61  Pac.  785.  Where 
the  note  set  out  in  the  complaint,  and 
appearing  to  have  been  secured  by  mort- 
gage, contains  a  provision  for  reasonable 
counsel  tees  as  part  of  the  note,  it  is 
proper  to  embody  an  allowance  for  coun- 
sel fees  in  the  decree  of  foreclosure  of 
the  mortgage.  Peachy  v.  Witter,  131  Cal. 
316;  63  Pac.  468.  A  provision  in  a  mort- 
gage, to  the  effect  that,  in  case  of  a  suit 
for  its  foreclosure,  a  decree  may  be  had 
for  the  sale  of  the  mortgaged  premises, 
and  out  of  the  proceeds  there  may  be  re- 
tained the  costs  and  charges  of  making 
such  sale  and  of  suit  for  foreclosure,  in- 
cluding counsel  fees,  authorizes  the  court 
to  include  such  counsel  fees  in  its  decree 
as  a  part  of  the  obligation  secured  by 
the  mortgage.  O'Neal  v.  Hart,  116  Cal. 
69;  47  Pac.  926;  and  see  Haensel  v.  Pa- 
cific States  Savings  etc.  Co.,  135  Cal.  41; 
67  Pac.  38.  Where  the  obligation  for  the 
payment  of  counsel  fees  is  included  in  the 
note,  but  is  not  secured  by  the  mortgage, 
the  plaintiff  may  recover  judgment  for 
counsel  fees,  but  such  judgment  is  not  a 
lien  upon  the  real  estate  secured  by  the 
mortgage.  Clemens  v.  Luce,  101  Cal.  432; 
35  Pac.  1032.  Where  the  mortgage  pro- 
vides for  reasonable  counsel  fees,  to  be 
fixed  by  the  court  in  case  of  foreclosure, 
and  for  all  payments  made  by  the  mort- 
gagee for  sj)ecified  purposes,  which  pay- 
ments were  to  be  deemed  as  secured  by 
the  mortgage,  the  mortgagee  is  not  enti- 
tled to  have  such  fees  included  in  the 
mortgage  lien,  but  must  rely  upon  a  per- 


873 


COMxMISSIONER    FOR    SALE — DEFICIENCY,    LIABILITY    FOR,    ETC. 


§726 


8onal  jadgment.  KlokUe  v.  Escaillcr,  124 
C'al.  297;  ilG  Pac.  IIL'J;  and  see  Irvine  v. 
Perry,  1U»  Cal.  352;  "jl  Pac.  544;  Cortelyou 
V.  Jones,  132  Cal.  131;  64  Pae.  119;  Haen- 
sel  V.  Pacific  States  Savings  etc.  Co.,  135 
Cal.  41;  67  Pac.  38;  Luddv  v.  I'avkovich, 
137  Cal.  284;  70  Pac.  177. 

Appointment  of  commissioner.  The  court 
is  authorized  to  ajipoiiit  a  <'oniniisaioncr 
to  make  a  sale  under  foreclosure,  by  its 
judgment,  or  at  any  time  after  Judgment; 
no  notice  is  requiretl  of  the  appointment, 
which  may  be  made  ex  parte;  and  the 
appointment  does  not  go  to  the  substance 
of  the  decree.  Granger  v.  Sherifp,  140  Cal. 
190;  73  Pac.  816.  The  proceedings  for  the 
foreclosure  of  a  street  assessment  are  quite 
analogous  to  those  for  the  foreclosure  of 
a  mortgage  upon  real  projiorty;  and  as  no 
mode  is  specifically  jiointod  out  for  the 
sale  of  real  property  under  the  judg- 
ment therein,  it  cannot  be  held  that  tlie 
appointment  of  a  commissioner  to  sell  the 
property  under  such  judgment  is  beyond 
the  jurisdiction  of  the  court,  or  even  erro- 
neous. Crane  v.  Cummings,  137  Cal.  201; 
69  Pac.  984. 

Liability  for  deficiency.  A  mortgagor 
has  the  right  to  insist  that  the  mortgagee 
shall  not,  by  releasing  the  land,  which 
should  be  made  to  pay  the  debt,  throw 
upon  him  a  personal  liability  therefor. 
Crisman  v.  Lanterman,  149  Cal.  647;  117 
Am.  St.  Rep.  167;  87  Pac.  89.  Where  the 
mortgagor  quitclaims  to  a  third  person, 
without  reference  to  the  mortgage  on  the 
property,  and  such  third  person  afterward 
conveys  the  premises  by  a  deed  reciting 
that  the  grantee  assumes  and  agrees  to  pay 
such  mortgage,  the  last-named  grantee  is 
not  liable  to  the  mortgagee  for  any  defi- 
ciency judgment:  there  is  no  privity  be- 
tween the  grantees  and  the  mortgagee. 
Ward  V.  De  Oca,  120  Cal  102;  52  Pac.  130. 
Where  a  mortgage  is  released  after  the 
mortgagee's  death,  to  make  a  sale  under  a 
deed  of  trust  effective,  in  being  clear  of 
all  encumbrances,  the  mortgagee's  estate, 
not  having  consented  to  such  release,  can- 
not be  made  liable  for  any  deficiency  aris- 
ing in  the  application  of  the  proceeds  of 
sale  to  the  mortgage  debt.  Crisman  v. 
Lanterman,  149  Cal.  647;  117  Am.  St. 
Rep.  167;  87  Pac.  89.  The  rule  that  the 
mortgagor  undertakes  to  pay  only  the  de- 
ficiency remaining  after  the  return  of  the 
result  of  the  sale  on  foreclosure,  is  not 
altogether  nor  literally  true:  he  under- 
takes to  pay  the  debt;  but  should  there 
exist  a  valid  lien  to  secure  its  payment, 
the  result  is  the  same  as  though  his  con- 
tract had  been  to  pay  only  the  deficiency; 
if,  however,  without  fault  on  the  part  of 
the  mortgagee,  the  lien  is  lost,  the  mort- 
gagor may  be  held  for  the  entire  debt. 
Otto  V.  Long,  127  Cal.  471;  59  Pac.  895. 
A  judgment  imposing  a  personal  liability 
for  a  debt  upon  a  person,  not  a  party  to 


the  note,  is  erroneous,  and  should  be  modi- 
fied, as,  under  such  judgment,  the  plain- 
tiff could  enter  a  deficiency  judgment 
against  suih  person;  and  the  plaintiff  can- 
not be  heard  to  say  that  he  will  not  avail 
himself  of  this  power,  (iarretsou  Invest- 
ment Co.  V.  Arndt,  144  Cal.  61;  77  Pac. 
770. 

Deficiency  judgment  may  be  given  when. 
The  i)rovii;ion  of  this  section  for  a  defi- 
ciency judgment  is  constitutional;  and  the 
court  is  warranteil  in  providing,  in  the 
decree  of  foreclosure,  for  the  entry  of  a 
deficiency  judgment  for  any  residue  of 
the  note  left  unpaid  after  the  sale.  County 
Bank  v.  Goldtree,  129  Cal.  160;  61  Pac. 
785.  The  mortgaged  property  constitutes 
a  fund  which  must  first  be  exhausted 
before  a  personal  judgment  can  be  had 
against  the  mortgagor.  Bull  v.  Coe,  77 
Cal.  54;  11  Am.  St.  Rep.  235;  18  Pac.  808; 
Lavenson  v.  Standard  Soap  Co.,  80  Cal. 
245;  13  Am.  St.  Rep.  147;  22  Pac.  184; 
Hall  V.  Arnott,  SO  Cal.  348;  22  Pac.  200. 
It  is  not  necessary  to  give  effect  to  the 
evident  intent  of  the  legislature,  that  there 
can  be  no  deficiency  judgment  without  a 
sale  under  a  decree  of  foreclosure  and  a 
formal  return  by  the  sheriff,  but  when- 
ever an  application  of  the  primary  fund 
and  a  deficit  remaining  exist,  and  can  only 
be  reasonably  ascertained  by  other  means, 
these  facts  are  not  to  be  ignored  because 
made  apparent  in  another  way.  Toby  v. 
Oregon  Pacific  R!  R.  Co.,  98  Cal.  490;  .33 
Pac.  550.  In  foreclosure  proceedings,  it  is 
error  for  the  court  to  enter  a  mere  money 
judgment  against  the  defendant  for  the 
amount  ascertained  to  be  due  on  the  note; 
until  after  a  sale  of  the  mortgaged  j)rem- 
ises,  there  can  be  no  personal  judgment 
docketed  against  him.  Crim  v.  Kessing, 
89  Cal.  478;  23  Am.  St.  Rep.  491;  26  Pac. 
1074;  Tobv  V.  Oregon  Pacific  R.  R.  Co., 
98  Cal.  49^0;  33  Pac.  550;  Hibernia  Sav. 
&  L.  Soc.  v.  Thornton,  109  Cal.  429;  50 
Am.  St.  Rep.  .53;  42  Pac.  447;  Savings 
Bank  v.  Central  Market  Co.,  122  Cal.  36; 
54  Pac.  273;  Meyer  v.  Weber,  133  Cal.  684; 
65  Pac.  1110.  Until  the  decree  is  entered 
for  the  sale  of  the  mortgaged  premises, 
the  mortgagor  cannot  legally  be  compelled 
to  pay  any  part  of  it,  no  matter  what  the 
form  of  the  debt,  and  the  liability  which 
then  accrues  to  him  is  a  liability  to  pay 
only  the  deficiency,  which  appears  on  the 
sheriff's  return.  Biddel  v.  Brizzolara.  64 
Cal.  354;  30  Pac.  609;  Brown  v.  Willis. 
67  Cal.  235;  7  Pac.  682;  McKean  v.  Ger- 
man-American Sav.  Bank,  118  Cal.  334; 
50  Pac.  656.  The  return  of  the  sheriff 
fixes  the  amount  for  which  the  deficiency 
judgment  shall  be  rendered,  which  must 
always  follow  and  depend  upon  the  decree 
for  the  sale  of  the  premises.  Biddel  v. 
Brizzolara,  64  Cal.  354;  30  Pac.  609.  The 
judgment  creditor  is  not  concluded  by  the 
sheriff's   report   from   having   a   deficiency 


§726 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


874 


computed  and  docketed  ag;aiiist  his  judg- 
ment debtor  after  the  sheriff's  return. 
Hooper  v.  McDade,  1  Cal.  App.  733;  82 
Pac.  1116.  Where  a  receiver  was  ap- 
pointed in  an  action  to  foreclose  a  mort- 
gage on  a  steamer,  and  afterwards  sold 
t^he  same  pendente  lite,  under  authority  of 
the  court  on  a  showing  that  the  steamer 
was  deteriorating  in  value,  the  court  is 
warranted  in  awarding  a  personal  judg- 
ment against  the  mortgagor  and  execution 
for  the  deficiency,  without  the  necessity  of 
a  sale  under  a  decree  of  foreclosure.  Toby 
V.  Oregon  Pacific  R.  R.  Co.,  98  Cal.  490; 
33  Pac.  550.  The  mortgagee  may  not, 
without  the  consent  of  the  mortgagor,  re- 
lease part  of  his  security  to  a  purchaser 
from  the  mortgagor,  at  less  than  its  value, 
and  then  look  to  the  mortgagor  to  make 
up  the  deficiency:  a  personal  judgment  is 
not  authorized  for  a  deficiency  arising 
from  a  sale  of  part  of  the  mortgaged 
premises;  if  the  mortgagee  could  release 
part  of  the  security,  he  could  release  all 
of  it,  and  thus  defeat  the  purpose  of  the 
law,  which  is  to  confine  him  to  one  action 
and  to  his  security  as  a  primary  fund  for 
the  payment  of  his  debt.  Woodward  v. 
Brown,  119  Cal.  283;  63  Am.  St.  Rep. 
108;  51  Pac.  2.  If,  in  an  action  to  fore- 
close a  mortgage,  a  partnership  is  sued 
originally  as  one  of  the  parties  defend- 
ant, but  in  an  amended  complaint  the 
members  of  such  partnership  are  named 
individually  as  defendants,  and  the  part- 
nership is  not  named  therein  as  a  de- 
fendant, a  deficiency  judgment  against  the 
partnership  is  erroneous,  and  the  fact 
that  the  original  complaint  and  summons 
were  served  upon  the  partnership  is  imma- 
terial. La  Societe  Franqaise  v.  Wiedmann, 
97  Cal.  507;  32  Pac.  583.  A  personal  judg- 
ment for  a  deficiency  cannot  be  docketed 
against  a  defendant  served  by  publication 
only;  though  no  valid  judgment  can  be 
entered  for  a  deficiency  against  a  non- 
resident mortgagor,  yet  the  deficiency  con- 
stitutes a  subsisting  indebtedness,  upon 
which  an  action  may  be  brought  after  the 
mortgage  security  has  been  exhausted  by 
a  foreclosure  sale.  Blumberg  v.  Birch,  99 
Cal.  416;  37  Am.  St.  Rep.  67;  34  Pac.  102. 
A  note  secured  by  mortgage  on  property 
in  another  state  may  be  sued  on  in  this 
state,  and  a  personal  judgment  recovered 
after  foreclosure  of  the  mortgage  in  such 
state,  and  deficiency  entered.  Felton  v. 
West,  102  Cal.  266;  36  Pac.  676.  The  par- 
ticular mode  of  entering  a  personal  judg- 
ment for  a  deficiency  is  not  an  important 
matter  in  the  policy  emboilicd  in  this  sec- 
tion, which  is  designed  to  prevent  a  multi- 
plicity of  suits  and  to  comjiel  the  creditor 
to  exhaust  his  security  first;  and  such  mode 
is  a  privilege  given  to  the  mortgagee.  Sav- 
ings Bank  v.  Central  Market  Co.,  122  Cal. 
28;  54  Pac.  273. 

Docketing   of   judgment   for   deficiency. 
Until    the   judgment    is    docketed    for    the 


balance  due  the  plaintiff,  it  does  not  be- 
come a  lien  on  the  real  property  of  the 
judgment  debtor.  Culver  v.  Rogers,  28 
Cal.  520;  and  see  Chapin  v.  Broder,  16 
Cal.  403;  Hibberd  v.  Smith,  50  Cal.  511; 
Frost  V.  Meetz,  52  Cal.  664.  An  adjudi- 
cation of  personal  liability  is  necessary  to 
authorize  the  clerk  to  docket  a  judgment 
for  a  deficiency.  Herd  v.  Tuohy,  133  Cal. 
55;  65  Pac.  139;  Scamman  v.  Bonslett,  US 
Cal.  93;  62  Am.  St.  Rep.  226;  50  Pac.  272. 
It  is  not  the  duty  of  the  clerk,  when  the 
sheriff  files  a  report  of  his  sale  showing 
a  deficiency,  to  docket  a  judgment  for  such 
deficiency,  without  any  request  so  to  do 
from  the  partv  interested.  Hooper  v.  Mc- 
Dade, 1  Cal.  App.  733;  82  Pac.  1116. 

Action  for  deficiency.  When  a  defi- 
ciency exists  after  a  sale  regularly  made 
under  a  trust  deed  to  secure  a  promissory 
note,  the  payee  thereof,  after  having  cred- 
ited upon  the  note  the  amount  received 
from  the  sale,  less  the  costs  of  sale,  may 
maintain  an  action  at  law  against  the 
maker  to  recover  the  balance  due  upon 
the  note.  Sacramento  Bank  v.  Copsey, 
133  Cal.  663;  85  Am.  St.  Rep.  242;  66  Pac. 
8;  Herbert  Kraft  Co.  v.  Bryan,  140  Cal. 
73;  73  Pac.  745.  Where  a  mortgage  is 
given  to  secure  the  entire  payment  of 
notes,  pending  an  attachment  suit  upon 
them,  in  which  a  portion  of  the  mortgaged 
property  is  levied  upon,  by  the  terms  of 
which  mortgage  the  time  for  the  payment 
of  the  notes  was  extended  for  one  year, 
if  the  mortgagee  continues  to  enforce  the 
notes  in  the  attachment  suit,  and  sells  the 
attached  property  thereunder,  he  waives 
the  right  to  foreclose  the  mortgage,  and 
cannot  maintain  a  separate  suit  to  fore- 
close it  for  any  deficiency  remaining  after 
the  sale  of  the  attached  property.  Com- 
mercial Bank  v.  Kershner,  120  Cal.  495; 
52  Pac.  848. 

Attacks  on  judgment.  In  an  action  to 
set  aside  a  judgment  for  the  foreclosure 
of  a  mortgage  on  land,  the  failure  of  the 
complaint  to  allege,  specifically,  the  name 
of  the  court  in  which  the  judgment  was 
given,  or  the  date  of  the  judgment,  does 
not  render  the  complaint  insufficient. 
Flood  V.  Templeton,  152  Cal.  159;  13 
L.  R.  A.  (K  S.)  579;  92  Pac.  78.  Any 
defect  in  a  judgment  of  foreclosure,  in 
using  the  word  "referee,"  instead  of  "com- 
missioner," employed  in  this  section,  is  not 
available  to  the  defendant  upon  a  col- 
lateral attack.  Hibernia  Sav.  &  L.  Soe.  v. 
Boyd,  155  Cal.  193;  100  Pac.  239. 

Equitable  relief  from  judgment.  Equity 
will  give  relief  from  a  judgment  in  fore- 
closure proceedings,  obtained  by  extrinsic 
or  collateral  fraud,  but  not  where  the 
fraud  charged  relates  to  matters  upon 
which  the  judgment  was  regularly  ob- 
tained, and  where  an  opportunity  was 
given  to  the  party  against  whom  it  was 
entered  to  contest  the  matters  in  issue, 
or  to  present  any  available  defense.    Flood 


1/0 


SALE    MADE   WHEN — BY   COM  .M  ISSIONKK — MADE    HOW. 


V.  Teini)lotoii,  l.'i'  ('al.  14R;  1.'^  T..  R.  A. 
(N.  S.)  579;  92  Pac.  78.  A  mistake  in  a 
mortgajje,  though  the  niortjiajjc  has  been 
foreclosed,  and  the  mistake  has  been  car- 
ried into  the  judf^nient  and  the  ileed.  may 
be  corrected  bv  a  suit  in  equity.  Hacon  v. 
Bacon,  1;10  Cal.  477;  89  Pac.  "317;  Busey 
V.  Moragn,  i;!i)  ('al.  ."iSG;  (52  I'ac  1081. 

Validity  of  order  of  sale.  The  direction 
of  an  order  of  sale,  to  the  sheriff,  is  a 
harmless  irrejiularity,  where  it  j>lainly  ap- 
pears that  the  court  intended  its  order  to 
be  executed  by  a  commissioner,  as  in  fact 
it  was:  the  commissioner  has  the  same 
powers  as  the  sheriff.  Taylor  v.  Ellen- 
berger,  6  Cal.  Unrep.  72.5;  65  Pac.  832. 
The  omission  of  the  seal  of  the  court  from 
an  ortler  of  sale  under  a  decree  of  fore- 
closure is,  at  the  most,  erroneous.  ITager 
V.  Astorg,  145  Cal.  548;  104  Am.  St.  Rep. 
68;  79  Pac.  68. 

When  sale  should  be  made.  Where  a 
trust  mortgage^  to  secui-e  bondholders  is 
foreclosed  by  the  trustees,  and  there  is  no 
provision  in  the  decree  for  delaying  the 
sale  of  the  mortgaged  ]>roperty,  the  trus- 
tees should  proceed  without  unreasonable 
delay  to  have  the  decree  executed;  and 
upon  their  failure  to  ilo  so,  the  court 
should,  upon  the  application  of  a  defend- 
ant, who  is  a  large  bondholder,  and  the 
owner  of  the  mortgaged  property,  and  in- 
terested in  the  execution  of  the  decree, 
direct  that  its  execution  be  proceeded  with. 
Thomas  v.  San  Diego  College  Co.,  Ill  Cal. 
358;  43  Pac.  965;  Rowe  v.  Blake,  112  Cal. 
637;  44  Pac.  1084. 

Sale  by  commissioner.  It  is  not  an 
abuse  of  discretion  for  the  commissioner, 
appointed  to  make  a  sale  in  foreclosure 
proceedings,  to  postpone  the  sale,  where 
no  reason  appears  why  it  should  be  post- 
poned. Connick  v.  Hill,  127  Cal.  162;  59 
Pac.  832.  Where  the  decree  follows  the 
description  in  the  mortgage,  and  is  as- 
sented to  by  the  defendant's  attorney,  and 
the  order  of  sale  follows  the  decree,  it  is 
the  duty  of  the  commissioner,  in  making 
the  sale,  to  follow  the  decree  and  the  order 
of  sale.  Meux  v.  Trezevant,  132  Cal.  487; 
64  Pac.  848. 

How  property  should  be  sold.  The  court 
may,  under  its  power  to  direct  the  sale, 
direct  how  it  shall  be  made;  and  where 
the  judgment  contains  specific  directions, 
they  must  be  followed  by  the  officer;  the 
question  is,  not  what  the  decree  should 
have  been,  but  what  it  is,  and  any  sale 
made  under  it,  not  authorized  by  its  terms, 
cannot  stand.  Hopkins  v.  W^iard,  72  Cal. 
259;  13  Pac.  687.  In  an  action  of  fore- 
closure upon  several  parcels  of  lan<l,  where 
the  pleadings  contain  no  allegation  con- 
cerning the  order  in  which  the  parcels 
should  be  sold,  and  the  prayer  of  the  com- 
plaint is  a  general  one,  it  is  error  for  the 
court,  in  its  decree,  to  prescribe  a  jiar- 
tieular  order  in  which  the  iiarcels  shall  be 


sold,  ('aririi.hafd  v.  .Mi'( lillivray,  57  Cal.  8. 
In  an  action  to  foreclose  a  mortgage  cover- 
ing several  adjoining  tracts  of  land,  the 
court  has  jurisdiction  to  jtrovide,  in  the 
ju<lginent,  for  a  sale  of  the  mortgaged 
premises  in  one  fiarcel;  and  a  sale  so 
made,  if  in  other  resjiects  fair,  will  not 
be  Ket  aside  on  the  gronml  that  the  mort- 
gagor r('<|uest('d  the  sheriff,  at  the  time  of 
the  sale,  to  sell  the  land  in  separate  tracts. 
Hopkins  v.  Wiard,  72  Cal.  259;  13  Pac. 
687.  The  foreclosure  of  tlirce  mortgages, 
and  a  general  judgment  for  the  aggregate 
of  the  amounts  due  on  them,  where  two 
of  such  mortgages  were  on  the  same  real 
estate  and  the  other  was  on  yiersonal  jirop- 
erty,  is  unauthorized:  the  real  and  tho 
])ersonal  jiroperty  should  be  ordered  to  1)6 
sold  sejiarately  for  the  amounts  ascer- 
tained to  be  due  upon  each.  Tavlor  v. 
Kllenberger,  128  Cal.  411;  60  Pac.  1034. 
Where  each  distinct  parcel  is  first  offered 
for  sale  separately,  and  no  bids  are  re- 
ceived, the  property  may  then  be  offered 
and  sold  as  a  whole,  and  the  sale  will  be 
upheld,  unless  other  reasons  a])j)ear  for 
setting  it  aside.  ^larston  v.  White,  91  Cal. 
37;  27  Pac.  588;  Hibernia  Sav.  &  L.  8oc. 
V.  Behnke,  121  Cal.  339;  53  Pac.  812;  Con- 
nick  v.  Hill,  127  Cal.  162;  59  Pac.  832; 
Anglo-Californian  Bank  v.  Cerf,  142  Cal. 
303;  75  Pac.  902.  It  must  be  assumed 
from  the  fact  that  the  sheriff  was  unal)le 
to  sell  the  several  parcels  separately,  and 
could  only  sell  them  as  a  whole  that  the 
lands  were  more  valuable  taken  together 
than  separately.  Hibernia  Sav.  «S:  L.  Soc. 
y.  Behnke,  12  f  Cal.  339;  53  Pac.  812.  Les- 
sees, whose  rights  are  subsequent  to  the 
mortgage,  have  the  right,  upon  foreclosure 
proceedings,  to  set  up  their  lease,  and  to 
ask,  in  their  answer,  that  the  portion  of 
the  mortgaged  premises  unaffected  by  tho 
lease  be  sold  first,  and  that  the  lessees  be 
allowed  to  redeem  from  any  sale  of  the 
leased  premises,  or  any  part  thereof. 
Mack  v.  Shafer,  135  Cal.  113;  67  Pac.  40. 
The  owner  of  a  right  of  way  over  mort- 
gaged premises,  subordinate  to  tho  mort- 
gage, has  the  right,  upon  foreclosure  of 
the  mortgage,  to  have  it  explicitly  ordered 
that  the  jiortion  of  the  mortgaged  prem- 
ises not  covered  by  the  right  of  way  shall 
be  first  solil,  and  that  the  right  of  way 
shall  only  be  sold  in  case  of  deficiency. 
Merced  Security  Sav.  Bank  v.  Simon.  141 
Cal.  11;  74  Pac.  356.  W'here  trustees  have, 
by  the  terms  of  a  deed  of  trust,  a  disi-re- 
tion  to  sell  as  a  whole  or  in  parcels,  a 
manifest  abuse  of  such  discretion  author- 
izes the  disaffirmance  of  a  sale  made  by 
them.  Humboldt  Sav.  Bank  y.  McClev- 
erty,  161  Cal.  285;  119  Pac.  82.  Where 
the"  parties  to  the  action  of  foreclosure 
consent  that  the  oflicer  making  the  sale 
shall  disregard  the  express  directions  of 
the  judgment  as  to  the  form  and  nninner 
of   the   sale,   they   will   not  afterwards   be 


§726 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


876 


permitted  to  object  to  such  disregard. 
Humboldt  Sav.  &  L.  Soc.  v.  March,  136 
Cal.  321;  68  Pac.  968.  A  discretion,  given 
in  a  deed  of  trust,  to  sell  the  property 
as  a  whole  or  in  parcels,  must  be  exer- 
cised in  good  faith,  for  the  best  interests 
not  only  of  the  creditor,  but  also  of  the 
debtor  and  his  successors  in  interest. 
Humboldt  Sav.  Bank  v.  MeCleverty,  161 
Cal.  2S5;  119  Pac.  82. 

Proceeds  of  sale.  The  proceeds  of  the 
sale  of  the  mortgaged  premises  constitute 
the  primary  fund  out  of  which  the  mort- 
gage debt  must  be  paid.  Porter  v.  Muller, 
65  Cal.  512;  4  Pac.  531.  In  an  action  for 
an  indebtedness  secured  by  mortgage,  the 
mortgaged  premises  must  first  be  applied 
to  the  satisfaction  of  the  debt,  and  there 
is  no  personal  liability  on  the  part  of  the 
mortgagor,  unless  the  security  proves  in- 
sufficient to  satisfy  the  debt.  Moore  v. 
Gould,  151  Cal.  723;  91  Pac.  616;  Kinsel 
v.  Ballou,  151  Cal.  754;  91  Pac.  620. 

When  sales  will  be  vacated.  A  party  to 
an  action  cannot  claim  an  absolute  right 
to  have  a  sale  on  foreclosure  vacated, 
unless  he  shows  that  he  has  sustained 
some  injury  by  reason  of  the  irregularity 
complained  of.  Humboldt  Sav.  &  L.  Soc. 
V.  March,  136  Cal.  321;  68  Pac.  968.  A 
sale  under  a  foreclosure  decree  is  void, 
only  when  it  is  conducted  in  a  manner 
prohibited  by  the  statute  or  by  the  direc- 
tions of  the  decree.  Bechtel  v.  Wier,  152 
Cal.  443;  15  L.  R.  A.  (N.  S.)  549;  93  Pac. 
75.  When  a  party  comes  into  court  and 
asks  to  set  aside  a  sale,  the  burden  is 
upon  him  to  show  such  an  irregularity  or 
material  departure  from  the  statute  as  will 
justifv  the  court  in  setting  it  aside.  Con- 
nick  V.  Hill,  127  Cal.  162;  59  Pac.  832. 
A  stranger  to  the  action  will  not  be  per- 
mitted to  intrude  himself  into  the  con- 
troversy, unless  he  clearly  shows  that  he 
has  some  interest  in  the  property  sold, 
and  also  that,  by  reason  of  the  manner 
in  which  the  sale  was  conducted,  he  will 
be  injuriously  affected  if  the  sale  is  per- 
mitted to  stand.  Humboldt  Sp.v.  &  L.  Soc. 
V.  March,  136  Cal.  321;  68  Pac.  968.  The 
rule  undoubtedly  is,  to  consider  every  fair 
sale  as  final;  and  upon  an  application  for 
a  resale,  the  rights  of  the  purchaser  will 
be  taken  into  account,  and  will  prevail 
when  the  sale  has  been  fair  and  free  from 
fraud.  Hopkins  v.  Wiard,  72  Cal.  259;  13 
Pac.  687.  The  fact  that  a  commissioner 
made  an  invalid  sale,  which  the  court  set 
aside  for  insufficiency  of  notice,  cannot 
invalidate  a  sale  afterwards  maile  upon 
due  notice;  and  the  fact  that  a  wrong 
date  was  first  published  cannot  affect  the 
sale,  where  an  amended  notice  was  suffi- 
ciently published  prior  to  the  sale.  May 
V.  Hatcher,  130  Cal.  627;  63  Pac.  33. 
Whether  a  motion  to  vacate  a  sale  of 
property,  made  in  execution  of  a  judg- 
ment, on  account  of  some  irregularity  on 


the  part  of  the  officer  making  the  sale, 
should  be  granted,  rests  very  largely  in 
the  discretion  of  the  court  before  which 
the  motion  is  made;  and  it  is  immaterial 
whether  such  irregularity  consists  in  dis- 
regarding the  provisions  of  the  statute  for 
making  the  sale  or  in  failing  to  observe 
and  follow  some  express  direction  in  the 
judgment.  Humboldt  Sav.  &  L.  Soc.  v. 
March,  136  Cal.  321;  68  Pac.  968.  Upon 
a  motion  to  set  aside  a  sale  of  property 
in  one  parcel,  where  it  is  shown  that  the 
property  was  sold  for  its  full  cash  value, 
and  that  it  would  not  have  brought  so 
much  if  sold  in  separate  lots,  the  motion 
is  properly  denied.  Meux  v.  Trezevant, 
132  Cal.  487;  68  Pac.  848.  The  statute 
requiring  separate  sales  of  separate  par- 
cels of  real  property  under  execution  ap- 
plies to  sales  under  a  decree  Of  foreclosure, 
where  the  decree  is  silent  as  to  the  manner 
or  order  in  which  the  separate  parcels 
sliall  be  sold;  it  does  not  render  a  sale 
of  separate  parcels  en  masse,  in  disregard 
of  its  requirements,  absolutely  void,  but 
merely  voidable,  and,  on  timely  applica- 
tion, such  sale  will  ordinarily  be  set  aside. 
Marston  v.  White,  91  Cal.  37;  27  Pac.  588; 
Bechtel  v.  Wier,  152  Cal.  443;  15  L.  R.  A. 
(N.  S.)  549;  93  Pac.  75.  Inadequacy  of 
price  is  not  a  sufficient  ground  for  setting 
aside  a  judicial  sale,  the  judgment  credi- 
tor being  allowed  to  redeem.  Connick  v. 
Hill,  127  Cal.  162;  59  Pac.  832;  and  see 
Smith  V.  Randall,  6  Cal.  47;  65  Am.  Dec. 
475;  Central  Pacific  R.  R.  Co.  v.  Creed, 
70  Cal.  497;  11  Pac.  772;  Humboldt  Sav. 
&  L.  Soc.  V.  March,  136  Cal.  321;  68  Pac. 
968;  Anglo-California  Bank  v.  Cerf,  142 
Cal.  303;  75  Pac.  902;  Summerville  v. 
March,  142  Cal.  554;  100  Am.  St.  Rep. 
145;  76  Pac.  388. 

Duty  and  power  of  sheriff.  It  is  no 
part  of  the  duty  of  a  sheriff,  as  such,  in 
the  absence  of  statutory  provision,  to  sell 
property  under  a  foreclosure  sale.  McDer- 
mot  V.  Barton,  106  Cal.  194;  39  Pac.  538. 
The  sheriff  may,  by  virtue  of  his  office 
and  the  general  powers  given  him,  execute 
a  foreclosure  decree  under  a  writ  issued 
to  him,  without  other  appointment  by  the 
court,  and  he  may  do  so  even  without  any 
writ;  naming  him  in  the  decree  confers 
no  new  powers  upon  him,  but  merely  au- 
thorizes the  exercise,  in  the  particular 
case,  of  such  powers  as  he  alreaily  pos- 
sesses. Granger  v.  Sheriff,  140  Cal.  190; 
73  Pac.  816.  The  sheriff  has  no  duty  to 
perform  in  the  case  of  a  sale  of  real  prop- 
erty under  foreclosure,  where  the  court  ap- 
points a  commissioner  to  make  such  sale. 
McDermot  v.  Barton.  106  Cal.  194;  39  Pac. 
538. 

Statute  of  limitations.  To  establish  a 
new  contract  for  the  purpose  of  taking 
a  case  out  of  the  statute,  there  must  be 
a  promise  to  pay,  or  an  acknowledgment 
from    which    a   promise    is    necessarily    im- 


ir< 


STATUTE   OF   LIMITATIONS — RES    AD  JUDICATA — APPEAL. 


§726 


plied,  and  such  jiroinise  or  acknowlcdg- 
iiR'iit  must  be  made  to  tlie  creditor  himself. 
Biddel  v.  Briz/.olara.  ()4  Cal.  'ii')4;  'So  i'ac. 
6U9.  The  runninji  of  the  statute  bej{ins 
on  the  maturity  of  the  note,  and  not  on 
default  in  {)ayment  of  the  interest,  where 
the  mortgage  jirovides  that  on  default  in 
payment  of  interest  the  whole  sum  shall 
become  due.  Richards  v.  Daley,  116  Cal. 
336;  48  Pac.  220.  Where  the  debt  secured 
by  the  mortgage  is  barred  by  the  statute 
of  limitations,  the  mortgage  is  also  barred. 
Newhall  v.  Sherman,  124  Cal.  ."lUit;  57  Pac. 
387.  A  mortgage  barred  by  the  statute  is 
not  renewed  by  a  renewal  of  the  note 
secured.  Wells  v.  Harter,  56  Cal.  342. 
The  renewal  of  the  note  by  the  mortgagor, 
•  who  has  sold  the  mortgaged  property  to 
a  purchaser  who  agrees  to  jiay  the  mort- 
gage debt,  and  who  thereafter  retransfers 
such  ])roperty  to  the  mortgagor,  does  not 
give  the  mortgagee  the  right  to  foreclose 
his  mortgage  against  such  projierty,  after 
the  statute  of  limitations  has  run  against 
such  mortgage,  although  such  note  was 
not  barred  by  the  statute:  the  mortgagee 
could  not  take  a  decree  for  the  sale,  be- 
cause of  the  statute;  he  could  not  false  a 
personal  judgment  for  a  deficiency,  be- 
cause such  deficiency  could  be  ascertained 
only  after  a  decree  for  the  sale  of  the 
premises  and  the  return  of  such  sale.  Bid- 
del  V.  Brizzolara,  64  Cal.  354;  30  Pac.  609. 
Where  a  second  foreclosure  suit  is  begun 
much  less  than  four  years  after  the  cause 
of  action  accrues,  no  question  can  arise 
as  to  the  effect  of  laches,  or  as  to  the 
sufficiency  of  any  excuses  therefor.  Lud- 
wig  V.  Murphy,  143  Cal.  473;  77  Pac.  150. 
Although  a  mortgage  sought  to  be  fore- 
closed may  not  be  barred,  as  between  the 
mortgagor  and  the  mortgagee,  by  reason 
of  the  absence  of  the  mortgagor  from  the 
state,  yet  where  it  aj)pears  to  be  barre<l 
by  the  statute,  the  holders  of  subsequent 
judgment  liens  may  plead  the  statute  as 
to  their  liens,  and  may  enforce  them  as 
superior  and  paramount  to  the  lien  of  the 
mortgage.  Braudenstein  v.  Johnson,  140 
Cal.  29;  73  Pac.  744.  Where  a  husband 
and  wife  executed  a  mortgage  upon  their 
homestead  declared  on  community  i)rop- 
erty^  the  presentation  of  a  claim  against 
the  estate  of  the  deceased  husband,  and 
the  allowance  thereof,  has  only  the  effect 
of  suspending  the  running  of  the  statute 
as  against  the  estate,  but  does  not  have 
that  effect  as  against  the  surviving  wife, 
upon  w'hom  the  title  to  the  homestead  de- 
volved absolutely  upon  the  death  of  her 
husband;  and  both  she  and  her  successor 
in  interest  may  plead  the  bar  of  the 
statute  in  foreclosure  proceedings  against 
them,  if  not  brought  within  four  years 
after  the  maturity  of  the  mortgage.  Van- 
dall  V.  Teague,  142  Cal.  471;  75  Pac.  35. 
The  right  of  the  mortgagor  to  redeem  is 
barred   by   the   statute   at    the   same    time 


that  the  right  of  the  mortgagee  to  fore- 
(lose  is  barred.  Arringtoii  v.  Liscom,  34 
Cal.  3(i5;  94  .\m.  Dec.  722.  The  manner 
of  enforcing  a  judgment  of  foreclosure 
is  ])rescribed  by  this  section,  and  every 
lirocess  that  may  be  recjuired  to  enforce 
it  must  be  taken  out  within  five  years 
after  its  entry:  a  judgment  for  a  defi- 
ciency does  not  become  a  new  and  inde- 
pendent judgment  by  being  docketed. 
Bowers  v.  <'rary,  30  Cal.  621. 

Res     adjudicata.     The    only     issue    ten- 
dered   to    a    junior    mortgagee   by    making 
him  a  party  to  a  suit  to  foreclose,  brought 
by   the   j)rior   mortgagee,   is   in    the   allega- 
tion that  the  right  or  claim  of  the  junior 
mortgagee   is   suliject   to   the   lien   claimed 
by   the    plaintiff    in    the    foreclosure    suit; 
and  as  to  any  possible  defense  such  junior 
mortgagee  may  have  to  that  issue  so  ten- 
dered,   he    is    concluded    by    the    decree, 
whether  he  ajipears  or  not.    Savings  Bank 
V.  Central  Market  Co.,  122  Cal.  28;  54  Pac. 
273.     Where   the  complaint   in   foreclosure 
sets   forth    the   facts    upon    which    an    ad- 
verse claimant,  made  defendant,  bases  his 
claim  of  title,  and  he  allows  issues  to  be 
tried  thereon  without  objection,  he  is  con- 
cluded by  the  judgment.    Beronio  v.  Ven- 
tura County  Lumber  Co.,  129  Cal.  232;  79 
Am.    St.    Rep.    118;    61    Pac.    958.     Where 
jiarties  having  a   title   prior,  adverse,   ami 
paramount   to   that   of  the   mortgage   were 
made  parties  defendant  to  the  foreclosure 
thereof,  under  the  usual  allegations  of  the 
complaint  that  the  defendants,  other  than 
the  mortgagor,  claim  some  interest  in  the 
premises,  and   that  such  interest  is  subse- 
quent and  subordinate  to  that  created  by 
the    mortgage,    without    setting    forth   the 
j)articulars    of    the    defendant's    claim,    or 
showing  that  it  was  prior  in   time   to  the 
mortgage,     the     judgment     of    foreclosure 
does  not  become  res  adjudicata  as  to  the 
prior  adverse  title  of  the  plaintiffs.    Bero- 
nio   v.   Ventura    County    Lumber   Co.,    129 
Cal.  232;  79  Am.  St.  Rep.  118;  61  Pac.  958. 
Appeal.     A    stay    bond    in    double    the 
amount  for  which  the  premises  are  to  be 
sold    is    unreasonable,    on    appeal    by    the 
mortgagee  from  the  decree  of  foreclosure, 
a  bond  for  waste,  use  and  occu])ation,  and 
deficiency,   is    all    that    is    required,    other 
than  the  three-hundred-dullar  bond,  on  ap- 
peal.   Boob  v.  Hall,  105  Cal.  413;  38  Pac. 
977.     On  appeal  from  a  judgment  for  the 
foreclosure   of   a   mortgage   upon   personal 
]>roperty,    an   undertaking   in    the    sum    of 
three  hundred  dollars  is  sufficient  to  stay 
the    execution    of    the    judgment,    pending 
the  appeal.    Snow  v.  Holmes,  64  Cal.  232; 
30    Pac.    806.     Where    the    decree,    as    en- 
tered   by    the    court,    ordered    the    encum- 
bered  property   to  be   sold  by   the  sheriff, 
while  the  order  made  and   entered  on   the 
same  day  ajipointed  a  commissioner  to  dis- 
charge the  same  duty,  there  is  a  mere  over- 
sight   by    the    court,    not    calling    for    an 


§726 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


878 


appeal,  which  may  be  remedied  by  a  mo- 
tion to  amend  and  correct  the  decree.  Mc- 
Dermot  v.  Barton,  106  Cal.  194;  39  Pac. 
538.  The  appellate  court  will  not,  in  the 
first  instance,  allow  counsel  fees  to  the 
respondent  mortgagee,  none  having  been 
fixed  by  the  court  below  on  account  of 
the  appeal.  Fender  v.  Eobinson,  135  Cal. 
26;  66  Pac.  969. 

Terms  defined,  distinguished,  and  ex- 
plained. A  trust  deed  has  no  feature  in 
common  with  a  mortgage,  except  that  it 
is  executed  to  secure  an  indebtedness; 
and  a  suit  for  foreclosure  and  sale  does 
not  lie,  if  the  contract  is,  that,  upon  de- 
fault, the  trustee  shall  sell  upon  the  hap- 
pening of  a  certain  event:  there  is  no 
equity  to  foreclose.  Koch  v.  Briggs,  14 
Cal.  256;  73  Am.  Dec.  651;  Fuquay  v. 
Stickney,  41  Cal.  583;  Whitmore  v.  San 
Francisco  Sav.  Union,  50  Cal.  145;  Grant 
v.  Burr,  54  Cal.  298;  Durkin  v.  Burr,  60 
Cal.  360;  Savings  and  Loan  Society  v. 
Deering,  66  Cal.  281;  5  Pac.  353;  Par- 
tridge v.  Shepard,  71  Cal.  470;  12  Pac.  480; 
More  V.  Calkins,  95  Cal.  435;  29  Am.  St. 
Eep.  28;  30  Pac.  583;  Savings  etc.  Soc. 
V.  Burnett,  106  Cal.  514;  39  Pac.  922; 
Herbert  Kraft  Co.  v.  Bryan,  140  Cal.  73; 
73  Pac.  745.  The  distinction  between  a 
mortgage  and  a  pledge  is  clearly  recog- 
nized by  the  Civil  Code:  in  the  case  of 
a  pledge,  the  pledgee  may  resort  to  a  judi- 
cial sale,  or  he  may  sell  on  notice  with- 
out suit,  the  latter  remedy  not  being  given 
in  the  case  of  mortgage.  This  section 
refers,  in  terms,  to  mortgages  only,  and 
contains  nothing  to  prevent  a  pledgee 
from  having  his  action  to  recover  the  debt 
without  first  exhausting  the  subject  of  the 
pledge.  Ehrlich  v.  Ewald,  66  Cal.  97;  4 
Pac.  1062;  Savings  Bank  v.  Middlekauff, 
113  Cal.  463;  45  Pac.  840.  A  lien  on  per- 
sonal property  may  exist  in  many  forms, 
other  than  by  way  of  mortgage;  and  al- 
though every  mortgage  is  a  lien,  yet  every 
lien  is  not  a  mortgage:  the  essential  ele- 
ment of  a  mortgage  is  a  transfer  or  con- 
veyance of  the  mortgaged  property  from 
the  mortgagor  to  the  mortgagee.  People's 
Home  Sav.  Bank  v.  Sadler,  1  Cal.  App. 
189;  81  Pac.  1029.  The  word  "security." 
as  used  in  this  section,  does  not  imj)ort 
that  the  security  shall  be  adequate,  but 
has  reference  only  to  the  purport  of  the 
mortgage  as  it  appears  on  its  face.  Bar- 
bieri  v.  Ramelli,  84  Cal.  154;  23  Pac.  1086. 
Where  the  judgment  on  foreclosure  pro- 
vides for  the  appointment  of  a  "referee" 
to  make  the  sale,  the  so-called  "referee" 
is  practically  the  "commissioner"  provided 
for  in  this  section.  Hibernia  Sav.  &  L. 
Soc.  V.  Boyd,  155  Cal.  193;  lOO  Pac.  239. 

Power  of  sale  in  mortgage.  See  note  14  Am. 
Dec.  473. 

Release  of  part  of  mortgaged  land.  .See  note  29 
Am.  Dec.  747. 

Foreclosure   by  exercise   of  power   of  sale.     .See 
notes  92  Am.  St.  Itep.  573;   103  Am.  St.  Rep.  51. 


Whether  lien  of  mortgage  terminated  by  sale 
under  mortgage.     See   note  58   Am.  Dec.   569. 

Appointment  of  receiver  for  mortgaged  prop- 
erty in  foreclosure.  See  notes  64  Am.  Dec.  492; 
27  Am.  St.  Kep.  794;  72  Am.  St.  Kep.  74. 

Litigation  of  paramount  titles  in  foreclosure 
proceedings.     See  note  68   Am.   St.  Kep.   o54. 

Constitutionality  of  statutes  allowing  attorney's 
fees.     See  note   79  Am.   St.  Kep.    178. 

Concurrent  remedies  of  holders  of  mortgages. 
See  note   73  Am.   St.  Kep.  559. 

Effect  upon  prior  mortgage  of  foreclosure  of 
subsequent  mortgage.    See  note  80  Am.  Dec.  714. 

Purchaser  of  property  subject  to  mortgage, 
when  may  not  contest  validity  of  mortgage.  See 
note  22  Am.  liep.  290. 

Subsequent  purchasers  or  encumbrancers  as 
necessary  parties  in  foreclosure.  See  note  1  Am. 
St.  Rep.  189. 

Pari,ies  defendant  in  foreclosure.  See  note  36 
Am.  St.  Rep.  574. 

Proper  parties  in  foreclosure.  See  note  63  Am. 
St.  Rep.  130. 

Mortgagor  who  has  conveyed  interest  in  prem-  , 
ises  as  necessary  or  proper  party  to  foreclosure. 
See  note  Ann.  Cas.  1913A.  83. 

Who  is  real  party  in  interest  by  whom  fore- 
closure action  must  be  brought.  See  note  64 
L.  R.  A.  618. 

Necessity  of  making  junior  encumbrancer  a 
party  to  a  suit  for  foreclosure  of  a  senior  mort- 
gage.   See  note  36  L.  K.  A.    (X.  S.)    426. 

Parties  to  proceedings  to  foreclose  mortgage 
for  part  of  debt.     See  note  37  L.  R.  A.  741. 

Remedy  of  one  improperly  omitted  as  party  to 
foreclosure  proceedings.  See  note  4  Ann.  Cas. 
848. 

Order  of  sale  of  land  transferred  by  mortgagor. 
See  note  41   Am.   St.  Rep.   627. 

Assumption  of  payment  of  mortgage  debt  by 
grantee  of  mortgagor.  See  notes  78  Am.  Dec. 
72;  26  Am.  Kep.  660;  40  .-Vm.  Rep.  232. 

Proper  place  of  sale  under  mortgage  containing 
power  of  sale  "at  court-house"  where  court-house 
is  removed  or  destroyed  or  there  is  more  than 
one.      See     note  11  Ann.  Cas.  166. 

Necessity  of  notice  by  mortgagee  to  mortgagor 
of  intention  to  exercise  power  of  sale  in  mort- 
gage.    See  note   11  Ann.   Cas.   170. 

Waiver  by  mortgagee  of  rights  acquired  by 
foreclosure.    See  note  Ann.  Cas.   1913A,  858. 

Right  of  debtor  to  require  creditor  to  satisfy 
mortgage  out  of  non-exempt  property.  See  note 
Ann.  Cas.  1913B,  394. 

Deficiency  judgment  against  non-resident  served 
constructively.    See  note  50  L.  R.   A.   583. 

Foreclosure  of  mortgage  on  land  in  another 
state.    See  note  4  L.  R.  A.    (X.  S.)    986. 

Right  to  proceeds  of  insurance  where  loss 
occurs  after  foreclosure  sale  but  during  the 
period  of  redemption.  See  note  6  L.  R.  A.  (N.  S.) 
44  S. 

Effect  of  sale  en  masse  by  sheriff  directed  to 
sell  parcels  of  land,  separately  mortgaged,  sepa- 
rately.    See   note   15   L.  R.  A.  (X.  S. )  549. 

Eight  to  foreclose  deed  intended  as  security  for 
debt  as  an  equitable  mortgage.  See  note  22 
L.  R.  A.  (N.  S.)  572. 

CODE  COMMISSIONERS'  NOTE.  1.  Mort- 
gage, defined.      Civ.  Code,  §  2920,  and  note. 

2.  Must  be  in  writing.  Civ.  Code,  §  2922,  and 
note. 

3.  Lien,  when  special.  Civ.  Code,  §  2923,  and 
note. 

4.  What  transfer  is  deemed  a  mortgage.  Civ. 
Code,  §  2925,  and  note. 

5.  Conveyance  absolute  may  be  shown  by 
parol  to  have  been  intended  as  a  security.  Civ. 
Code.  §  2925.  and  note:  Espinosa  v.  Gregory,  40 
Cal.  61;  .lackson  v.  Lodge,  36  Cal.  28;  Hughes  v. 
Davis,  40  Cal.  119. 

6.  Mortgage  is  a  lien  upon  everything  that 
would  pass  by  grant.  Civ.  Code,  §§  2926,  2947, 
and  notes. 

7.  Right  of  the  mortgagee  to  possession.  Civ. 
Code,  S  2927,  and  note. 

8.  Power  of  sale  in  mortgage.  Civ.  Code, 
§  2932,  and  note;  Cormerais  v.  Genella,  22  Cal. 
116;  Blockley  v.  Powler,  21  Cal.  326;  82  Am. 
Dec.  747. 


879 


PARTIES — JUDGMENT,  FORM  OF,  EFFECT  OF,  ETC. 


§T2G 


9.  Assignment  of  mortgage  carrion  debt.  Civ. 
Code,  §  'J9:i0,  and  nolo. 

10.  Mortgage  does  not  pass  the  title.  Civ. 
Code,  §  "JHS.S  ;   Cariioiiticr  v.  Jiiuwiham,  40  Ciil.  U'Jl. 

11.  Parties  to  the  action.  The  fort'closuri-  of 
the  first  luovtti'dKf,  i"  an  action  to  which  the 
holder  of  a  junior  niortKanc  wa.s  not  a  party,  does 
not  affect  the  ri^ht  of  the  latter;  but  the  pur- 
chaser at  the  sale  under  the  lirst  mortgage  ac- 
quires the  legal  title,  subject  only  to  the  lien 
of  the  junior  nioitgai^e.  Cari)entier  v.  Brenham, 
40  Cal.  221.  If  one  purchase  the  mortgaged 
premises,  pending  tho  foreclosure  action,  before 
or  after  final  judgment,  with  notice,  the  judg- 
ment is  binding  upon  him,  and  tlure  is  no  ground 
for  setting  aside  the  sale  or  opening  the  judg- 
mi'nt.  Abadie  v.  J>obero,  36  Cal.  391.  The 
grantee  of  mortgaged  premises  is  not  affected  by 
the  sale  under  the  mortgage,  if  the  foreclosure 
action  was  commenced  after  the  conveyance  to 
the  grantee,  unless  he  is  a  party  to  the  action. 
Bludworth  v.  Lake,  33  Cal.  2G5.  Subsequent 
encumbrancers  are  proper  but  not  necessary  par- 
ties. Carpentier  v.  Brenham,  40  Cal.  221.  Where 
one  partner  executes  a  mortgage  upon  his  sepa- 
rate property  to  secure  a  debt  of  the  firm,  an 
action  to  foreclose  the  mortgage  may,  after  the 
death  of  the  mortgagor,  be  maintained  against 
his  executor,  without  any  showing  by  the  plain- 
tiff that  the  partnership  is  insolvent,  or  that  he 
has  pursued  his  remedy  upon  the  debt  against 
the  surviving  partner.  Savings  and  Loan  Society 
V.  Gibb,  21  Cal.  59.5.  If  the  real  holders  of  the 
title  are  not  parties  to  the  action,  a  court  of 
equity  will  allow  them  to  be  made  such  by  a 
supplemental  complaint,  if  application  be  made 
•within  a  reasonable  time.  Ilevman  v.  Lowell,  23 
Cul.  106;    see  notes  to  §§  369,  378,  379,  ante. 

12.  Actions  against  executors  and  adminis- 
trators. The  creditor  of  the  estate  of  a  deceased 
person,  whose  debt  is  secured  by  mortgage,  may, 
after  having  presented  his  claim  for  allowance 
to  the  executor,  whether  it  be  allowed  or  re- 
jected, proceed  to  foreclose  his  mortgage  in  the 
district  court.  Willis  v.  Farley,  24  Cal.  499; 
Fallon  v.  Butler,  21  Cal.  24;  81  Am.  Dec.  140; 
Pechaud  v.  Kinquet,   21   Cal.  76. 

13.  Action  on  a  debt  payable  in  installments. 
In  a  foreclosure  suit,  the  debt  being  evidenced 
by  a  promissory  note  not  due,  but  upon  which 
the  interest  was  payable  monthly,  a  judgment 
■directing  the  sale  of  the  premises  and  the  appli- 
cation of  the  proceeds  to  the  payment  of  the 
principal  and  interest,  was  held  erroneous;  the 
judgment  should  have  been  for  the  sale  of  so 
much  of  the  premises  as  might  be  necessary  to 
satisfy  the  interest  then  due.  Hunt  v.  Dohrs,  39 
Cal.  305.  If  the  debt  is  payable  in  installments, 
the  mortgagee  or  his  assignee  may  maintain  an 
action  to  foreclose  the  mortgage  when  the  first 
installment  falls  due  and  is  not  paid.  Grattan  v. 
Wiggins,  23  Cal.  16;  see  §  728,  post;  Taggart  v. 
San  Antonio  Ridge  etc.  Mining  Co.,  18  Cal.  460. 

14.  Form  of  judgment.  All  that  a  judgment 
under  this  section  need  or  should  contain  is  : 

1.  A  statement  of  the  amount  due  the  plaintiff; 

2.  A  designation  of  the  defendants  who  are 
personally  liable  for  the  payment  of  the  debt; 

3.  A  direction  that  the  mortgaged  premises 
(describing  them),  or  so  much  thereof  as  may  be 
necessary,  be  sold  according  to  law,  and  the 
proceeds  applied  to  the  payment  of  the  expenses 
■of  the  sale,  the  costs  of  the  action,  and  the  debt. 

Nothing  further  is  required.  All  else  is  minis- 
terial, and  is  expressly  regulated  l)y  statute, 
■"vhich  is  not  made  clearer  or  more  binding  by 
being  copied  into  the  judgment.  There  is,  under 
our  s^rstem,  no  master  in  chancery. — no  master's 
report.- — and  no  confirmation  of  the  sale  by  the 
■court.  That  mode  of  procedure  is  wholly  foreign 
to  our  system.  Under  our  system,  the  sheriff  is 
furnished  with  a  certified  copy  of  the  judgment. 
Armed  with  this  process,  he  proceeds  to  sell  the 
mortgaged  premises  in  the  mode  and  manner,  and 
at  the  place,  designated  in  the  code,  for  the  sale 
•of  real  property  under  judicial  process,  and  makes 
return  of  his  proceedings,  as  in  case  of  an  execu- 
tion upon  a  money  judgment.  If  it  appears  from 
"his  return  that  the  amount  due  the  plaintiff  has 
not  been  fully  paid  by  the  sale,  the  clerk  then 
dockets    judgment    for    the    balance    due    against 


those  defendants  named  in  the  judgment  as  being 
porsonally  liable  for  the  debt,  without  any  order 
from  the  court.  Per  Sanderson,  J.,  in  Leviston 
V.  Swan,  33  Cul.  4  83.  A  personal  judgment  can- 
not be  rendered  against  u  defendant  until  the 
balance  due  is  ascortained  by  the  Hheriff's  re- 
turn. Hunt  V.  Dohrs,  39  Cnl.  304.  Cases  in 
whieli  it  was  held  that  a  personal  judgment  might 
be  taken  (but  compare  thehe  with  cases  cited, 
supra,  and  statutes  existing  at  the  time  of  the 
decisions):  Kowlund  v.  Leiby,  14  Cal.  156;  Kng- 
lund  v.  Lewis,  2.')  Cal.  348  ;  Comerais  v.  (ienella, 
22  Cal.  116;  <  hapin  v.  Broder,  16  Cul.  403.  The 
omission  of  the  words  "be  sold"  will  not  affect 
the  judgment.  Moore  y.  Semple,  11  Cal.  300.  A 
judgment  for  tlie  sale  of  the  premises,  where  the 
mortgagor  has  transferred  his  estute  in  the  prem- 
ises previous  to  the  institution  of  the  suit,  and 
his  grantee  was  not  made  u  i>arty,  is  void,  so  far 
as  it  orders  a  sale.  Boggs  v.  Fowler,  16  Cul.  559; 
76  Am.  Dec.  561.  Where  defendants  cluiming 
adversely  are  in  possession,  a  judgnn  nt  directing 
upon  the  sale  a  conveyance  of  the  fee  and  a  de- 
livery of  possession  to  the  purchaser,  and  con- 
ferring upon  him,  until  redemption  made,  the 
right  to  recover  the  rents,  issues,  and  profits  of 
the  land,  is  erroneous.  In  such  case,  the  decree 
must  be  limited  to  a  sale  of  tho  rights  and  in- 
terests which  the  mortgagor  possessed  at  the  date 
of  his  mortgage,  leaving  the  purchaser  to  assert 
his  right  to  the  possession,  after  receivin,:  his 
conveyance  by  action.  San  Francisco  v.  Lawton, 
21  Cal.  589;  18  Cal.  465;  79  Am.  Dec.  187;  Elias 
V.  Verdugo,  27  Cal.  420;  Kelsey  v.  Abbott,  13 
Cal.  609.  The  judgment  should  not  apportion 
the  debt  among  the  several  co-tenants  of  the  land 
who  acquired  undivided  interests  therein  at  the 
same  time,  and  subsequently  to  the  execution  of 
the  mortgage.  Perre  v.  Castro,  14  Cal.  531  ;  76 
Am.  Dec.  444.  Where  the  proceedings  were  de- 
layed by  agreement,  in  consideration  of  the 
execution  of  a  second  mortgage  on  other  prop- 
erty, in  which  third  parties  joined  as  additional 
security,  and,  subsequently,  plaintiff  filed  a  sup- 
plemental complaint,  setting  up  the  second  mort- 
gage, and  asking  a  sale  of  the  premises  described 
in  both  mortgages,  judgment  was  taken  by  de- 
fault for  the  debt,  and  the  court  decreed  a  fore- 
closure of  the  several  mortgages  and  a  sale  of 
the  property  conveyed,  and  directed  that  the 
property  described  in  the  mortgage  executed  by 
Iveynolds  should  be  first  offered  for  sale;  but  that 
no  bid  should  be  received  for  a  less  sum  than 
the  full  amount  of  judgment  and  costs.  If  this 
sum  was  not  bid,  then  the  whole  property  in- 
cluded in  the  two  mortgages — from  Reynolds 
and  from  Kirk  and  Reynolds — was  to  be  sold 
together.  The  judgment  was,  on  appeal,  held 
erroneous.  Raun  v.  Reynolds,  11  Cal.  14.  A 
was  indebted  to  B,  to  secure  which  indebtedness 
the  latter  held  the  promissory  note  of  the  former, 
and  it  was  agreed  that  A  should  give  a  mortgage 
upon  real  estate  to  secure  the  indebtedness,  and 
that  B  should  give  up  and  cancel  the  notes,  and 
waive  all  claim  upon  the  personal  responsibility 
of  A.  It  was  held,  that,  in  an  action  to  fore- 
close the  mortgage,  B  was  not  entitled  to  a  per- 
sonal judgment  against  A  for  any  balance  which 
should  remain  unpaid  after  the  sale  of  the  mort- 
gaged premises.  Moore  v.  Reynolds,  1  Cal.  351. 
The  judgment  should  not  direct  that  the  sheriff 
execute  a  deed  to  the  purchaser  on  the  sale, 
the  land  sold  being  subject  to  redemption  in  six 
months.  Harlan  v.  Smith,  6  Cal.  174.  If  the 
judgment  is  by  default,  the  relief  given  should 
not  exceed  that  demanded  in  the  complaint.  Raun 
V.  Reynolds,  11  Cal.  14.  A  referee  may  be 
appointed  to  compute  the  amount  due.  Uuy  v. 
Franklin,  5  Cal.  4  16. 

15.  Special  cises  in  which  relief  from  errone- 
ous or  void  Judgments  were  granted.  cJoodenow 
v.  F.wer,  16  Cal.  461;  76  Am.  Dec.  540;  Burton 
V.  Lies,  21  Cal.  87;  Boggs  v.  Fowler,  16  Cal. 
566;  76  Am.  Dec.  561;  Leviston  v.  Swan,  33 
Cal.  483;  Pholan  v.  Olney,  6  Cal.  478;  Raun  v. 
Reynolds,  15  Cal.  468. 

ie.  Effect  of  judgment.  See  subd.  11  of  this 
note,  (.ioodenow  v.  Ewer,  16  Cal.  461;  76  .\m. 
Dec.  540;  Shores  v.  Scott  River  Co.,  21  Cal.  135; 
Montgomery  v.  Middlemiss,  21  Cal.  103;  81 
Am.    Dec.    146;    Branham   v.   Mayor   and   Commsn 


§§727,728 


ACTIONS  FOR  FORECLOSURE  OF   MORTGAGES. 


880 


Council,  24  Cal.  585;  San  Francisco  v.  Lawton. 
18  Cal.  465;  79  Am.  Dec.  187;  Bludworth  v. 
Lake.  3.3  Cal.  265;  Skinner  v.  Buck,  29  Cal. 
253;  Burton  v.  Lies,  21  Cal.  87;  Christy  v.  Dana, 
34  Cal.  543. 

17.  Effect  of  death  of  mortgagor  after  judg- 
ment. Xagle  V.  Macy,  9  Cal.  426;  Cowell  v. 
Buckelew,  14  Cal.  640. 

18.  Order  of  sale.  Sheriff  cannot  make  the 
sale  without  an  order  of  sale.  Heyman  v.  Bab- 
cock,  30  Cal.  367.  Copy  of  judgment  constitutes 
the  order.  Leviston  v.  Swan,  33  Cal.  483.  Alias 
order  may  issue.  Shores  v.  Scott  River  Water 
Co.,  17  Cal.  626.  Statute  of  limitations,  how 
far  applicable.    Bowers  v.  Crary,  30  Cal.  621. 

19.  Sale.  Property  must  be  sold  in  parcels, 
.ind  property  included  in  the  first  mortgage  should 
be  exhausted  before  recourse  is  had  to  the  second. 
Raun  V.  Reynolds,  11  Cal.  14;  Shores  v.  Scott 
River  Water  Co.,  17  Cal.  629.  Sale  should  be 
made  by  the  sheriff,  unless  the  judgment  con- 
tains directions  to  the  contrary.  Heyman  v.  Bab- 
cock,  30  Cal.  367. 

20.  Costs  and  counsel  fees.  Where  the  mort- 
gage provided  for  the  payment  of  costs  and  coun- 
sel fees,  not  exceeding  five  per  cent  on  the 
amount  due,  it  was  held  that  the  limitation  ap- 
plied to  counsel  fees  alone.  Gronfler  v.  Minturn, 
5  Cal.  492.    See  Carriere  v.  Minturn,  5  Cal.  435. 

21.  Eedemption.  Generally.  Montgomery  v. 
Tutt.  11  Cal.  307:  Dewey  v.  Latson,  6  Cal.  609; 
McMillan  v.  Richards,  9  Cal.  365;  70  Am.  Dec. 
655;  McDermott  V.  Burke,  16  Cal.  580  ;  Goodenow 
V.  Ewer,  16  Cal.  461;  76  Am.  Dec.  540;  Dauben- 
speck  7.  Piatt,  22  Cal.  330;  Bludworth  v.  Lake, 
33  Cal.  255-265;  Alexander  v.  Greenwood,  24 
Cal.  506;  Cowing  v.  Rogers,  34  Cal.  648;  Espi- 
nosa  V.  Gregory,  40  Cal.  61;  Jackson  v.  Lodge,  36 
Cal.  28;  Hughes  v.  Davis,  40  Cal.  119;  Cunning- 
ham V.  Hawkins,  24  Cal.  403;  85  Am.  Dec.  73; 
27  Cal.  603. 

22.  Writs  of  assistance.  A  writ  of  assistance 
is  the  proper  remedy  to  place  the  purchaser  in 
possession,  after  sheriff's  deed.  Reynolds  v. 
Harris,  14  Cal.  677;  76  Am.  Dec.  459;  Mont- 
gomery V.  Tutt,  11  Cal.  190;  Wolf  v.  Fleischacker, 
5  Cal.  244;  63  Am.  Dec.  121;  Skinner  v.  Beatty, 
16  Cal.  156;  Montgomery  v.  Middlemiss,  21  Cal. 
103;  81  Am.  Dec.  146.  When  it  will  be  issued. 
Frisbie  v.  Fogarty,  34  Cal.  11;  Skinner  v. 
Beatty,  16  Cal.  156;  Montgomery  v.  Middlemiss, 
21  Cal.  103;  81  Am.  Dec.  146;  Montgomery  v. 
Byers,  21  Cal.  107.  It  will  be  issued,  afthough 
the  judgment  contain  no  direction  to  that  effect. 
Horn  V.  Volcano  Water  Co.,  18  Cal.  141;  Mont- 
gomery V.  Middlemiss,  21  Cal.  103;  81  Am.  Dec. 
146.      When    it    will    not    be    issued.     Burton    v. 


Lies,  21  Cal.  87;  Harlan  v.  Rackerby,  24  Cal- 
561;  Steinbach  v.  Leese,  27  Cal.  295;  Chapman 
V.  Thornburg,  23  Cal.  48. 

23.  Receivers  in  mortgage  cases.  See  subd.  » 
of  note  to  §  564  of  this  code. 

24.  Collateral  attacks.  The  title  acquired  by 
the  purchaser  under  a  foreclosure  sale  cannot 
be  impeached  collaterally  for  irregularity  in  the 
proceedings  on  sale.  Nagle  v.  Macy,  9  Cal.  426. 
Generally.  Alderson  v.  Bell,  9  Cal.  321;  Haves. 
V.  Shattuck,  21  Cal.  51. 

25.  Grantees  of  the  mortgagor  may  plead  stat- 
utes of  limitations.  Grattan  v.  Wiggins,  23  Cal. 
16;  McCarthy  v.  White,  21  Cal.  495;  82  Am. 
Dec.  754;  Low  v.  Allen,  26  Cal.  141;  Lent  v. 
Shear,  26  Cal.  361. 

26.  Caveat  emptor.  How  far  applicable  to- 
foreclosure  sales.  Boggs  v.  Fowler,  16  Cal.  564; 
76  Am.  Dec.  561. 

27.  Generally.  Mortgage  of  public  lg,nds,  when 
title  is  subsequently  acquired.  Christy  v.  Dana, 
34  Cal.  548.  If,  through  inadvertence  or  mis- 
take, satisfaction  of  mortgage  has  been  entered 
of  record,  a  judgment,  foreclosing  the  mortgage- 
without  first  setting  aside  the  Katisfaction,  is  er- 
roneous. Russell  V.  Mixer,  39  Cal.  504.  Whether 
a  tender  by  a  subsequent  mortgagee,  of  the  sum 
due  on  the  prior  mortgage,  if  made  after  the 
law-day  of  the  mortgage,  without  keeping  the 
tender  good,  was  discussed,  but  not  decided,  in 
Ketchum  v.  Crippen,  37  Cal.  223.  If,  at  the 
time  of  the  making  of  a  promissory  note,  the 
malcer  also  gives  the  payee  a  bill  of  sale  of 
personal  property  by  way  of  mortgage  to  secure 
the  note,  and  also  delivers  possession  of  the 
property,  the  maker  has  a  right  to  have  the 
property  mortgaged  applied  in  satisfaction  of 
the  debt ;  and  if  the  payee  sells  any  -  of  the 
property,  he  has  a  right  to  have  the  proceeds 
or  value  applied  toward  the  satisfaction  of  the 
debt.  McGarvey  v.  Hall,  23  Cal.  140.  A  com- 
menced an  action  against  B  to  foreclose  a  mort- 
gage given  to  secure  a  debt.  On  motion  of 
A's  attorney,  the  prayer  for  foreclosure  of  the 
mortgage  and  sale  of  the  property  was  stricken 
out  and  a  money  judgment  taken.  On  appeal,  it 
was  held  that  this  was  an  abandonment  and 
waiver  of  A's  right  to  a  foreclosure  and  sale  of 
the  mortgaged  property.  Ladd  v.  Ruggles,  23- 
Cal.  232.  The  mortgagee  of  real  estate  can 
maintain  an  action  to  recover  damages  for  wrong- 
ful and  fraudulent  injuries  done  to  the  mortgaged 
property,  by  which  security  of  the  mortgage  has 
been  impaired.  Robinson  v.  Russell,  24  Cal. 
472;  Buckout  v.  Swift,  27  Cal.  434;  87  Am.  Dec. 
90. 


§  727.  Surplus  money  to  be  deposited  in  court.  If  there  be  surplus 
money  remaining,  after  payment  of  the  amount  due  on  the  mortgage,  lien, 
or  encumbrance,  with  costs,  the  court  may  cause  the  same  to  be  paid  to  the 
person  entitled  to  it,  and  in  the  mean  time  may  direct  it  to  be  deposited  in 
court. 


Deposit  in  court.     Ante,  §§  572,  573,  574. 
Legislation  g  727.      Enacted    March    11,    1872; 


re-enactment  of  Practice  Act,  §  247. 


§  728.  Proceedings  when  debt  secured  falls  due  at  different  times.  If 
the  debt  for  which  the  mortgage,  lien,  or  encumbrance  is  held  is  not  all  due. 
so  soon  as  sufficient  of  the  property  has  been  sold  to  pay  the  amount  due, 
with  costs,  the  sale  must  cease;  and  afterwards,  as  often  as  more  becomes 
due,  for  principal  or  interest,  the  court  may,  on  motion,  order  more  to  be 
sold.  But  if  the  property  cannot  be  sold  in  portions,  without  injury  to  the 
parties,  the  whole  may  be  ordered  to  be  sold  in  the  first  instance,  and  the 
entire  debt  and  costs  paid,  there  being  a  rebate  of  interest  where  such  rebate 
is  proper. 

Legislation  8  728.     1.  Enacted  March  11,  1873;        "must"  before  "cease." 
based  on    Practice   Act,  §  248,   changing   (1)    "be"  2.   Amendment    by    Stats.    1901,   p.    159;    un- 

to  "is"   before   "not  all  due,"   and    (2)    "shall"   to        constitutional.    See  note  ante,  §5. 


881 


MATURITY  OF  PRINCIPAL,  ETC. — DEFAULT — MOTION   FOR  SALE. 


§728 


Construction  of  section.  The  failure  to 
sell  any  portion  of  tlio  niorti;a<;cil  pro(>- 
crty,  under  a  decree  of  sale  for  a  first  in- 
stallment of  interest,  will  not  prevent  a 
sale  of  the  whole  property,  on  motion, 
when  the  unmatured  portion  of  the  note 
falls  due:  the  j>rovisioiis  of  this  section 
make  for  the  benefit  of  the  debtor,  to  ])rc- 
vent  the  sale  of  more  of  his  pro{)erty  than 
is  necessary  to  pay  the  amount  due,  and 
not  to  impose  upon  him  the  cost  of  several 
sales.  Bank  of  Napa  v.  Godfrey,  77  Cal. 
612;  20  Pac.  142.  This  section  does  not 
apply  to  a  ease  where  an  installment  se- 
cured by  the  mortgage  falls  due  after  the 
mortgage  has  been  enforced  for  an  install- 
ment due  at  an  earlier  date.  McDougal 
V.  Downev,  4.^  Cal.  165;  Iliggins  v.  San 
Diego  Sav.  Bank.  129  Cal.  184;  61  Pac.  94:5. 
Where  the  judgment  fails  to  provide  for 
the  sale  of  any  portion  of  the  mortgaged 
premises  upon  a  subsequent  default  in 
principal  or  interest,  this  section  supplies 
such  omission,  and  authorizes  further  or- 
ders of  the  court  until  the  entire  mort- 
gaged premises  are  sold  in  satisfaction  of 
the  debt;  and  the  action  of  the  court  in 
ordering  a  sale  of  the  property  to  satisfy 
installments  as  they  become  due,  subse- 
quently' to  decreeing  foreclosure  in  amount 
originally  found  due,  is  not  a  further  judg- 
ment in  such  action,  but  is  only  an  order 
after  judgment.  Byrne  v.  Hoag,  126  Cal. 
283;  58  Pac.  688. 

Maturity  of  principal  or  interest  of 
mortgage  debt.  Where  the  mortgage  is 
given  to  secure  the  payment  of  the  prin- 
cipal sum  of  a  note  five  years  after  its 
maturity,  with  interest  at  the  specified 
rate,  according  to  the  terms  and  conditions 
of  a  promissory  note,  which  make  the  in- 
terest payable  annuall}',  and  if  interest  is 
not  so  paid,  to  draw  interest  the  same  as 
the  principal,  but  no  provision  is  made 
for  the  collection  of  the  note,  or  for  the 
foreclosure  of  the  mortgage  before  the 
maturity  of  the  note,  the  mortgagee  has 
no  right  to  foreclose  until  its  maturity. 
Van  Loo  v.  Van  Aken,  104  Cal.  269;  37 
Pac.  925;  and  see  Yoakam  v.  White,  97 
Cal.  286;  32  Pac.  238.  Where  the  first 
mortgagee  commenced  his  action  to  fore- 
close his  mortgage,  making  the  second 
mortgagee  defendant,  and,  pending  the 
action,  assigned  his  mortgage  to  the  sec- 
ond mortgagee,  who  was  substituted  as 
plaintiff,  and  who  sought  to  foreclose 
both  mortgages  in  an  amended  complaint, 
the  court,  in  its  decree,  may  properly  pro- 
vide for  the  sale  of  the  premises  to  satisfy 
the  second  mortgage,  although  it  did  not 
become  due  until  after  the  amended  com- 
plaint was  filed,  but  was  due  when  the  case 
was  tried  and  the  decree  entered.  Orange 
Growers'  Bank  v.  Duncan,  133  Cal.  254; 
65  Pac.  469;  Windt  v.  Gilleran,  135  Cal. 
94;  66  Pac.  970.  Where  some  of  the  notes 
secured  by  mortgage  are  not  due  at  the 
1  Fair. — 56 


commencement  of  the  suit,  but  become  due 
before  trial,  the  court  has  jurisdiction  to 
decree  a  foreclosure  to  satisfy  all  of  them. 
Bostwick  V.  McKvoy,  62  Cal.  49(;.  A  judg- 
ment for  the  principal  of  a  promissory 
note  secured  by  mortgage,  and  an  order 
for  the  sale  of  the  mortgaged  premises  for 
its  payment,  is  erroneous,  where  the  note 
was  not  due  when  the  action  was  com- 
menced, but  judgment  may  be  had  for  the 
sale  of  so  much  of  the  mortgagol  prem- 
ises as  may  be  necessary  to  satisfy  the 
interest  due.  Hunt  v.  iJohrs,  39  Cal.  3U4. 
Where  the  mortgage  provides  for  the  pay- 
ment of  the  note  "according  to  the  terms 
and  conditions  thereof,"  and  that,  "in  de- 
fault of  the  payment  of  the  note  by  its 
terms,"  the  mortgagee  may  foreclose,  and 
the  terms  of  the  note  were,  that  the  in- 
terest should  be  payable  annually  and  the 
jirincipal  at  the  end  of  five  years,  the 
mortgagee  has  the  right  to  foreclose  it, 
upon  a  default  in  the  payment  of  the  in- 
terest, for  the  amount  of  interest  due,  and 
need  not  wait  until  a  default  in  the  pay- 
ment of  the  whole  note,  principal  and  in- 
terest. Yoakam  v.  White,  97  Cal.  2S6;  32 
Pac.  238;  Phelps  v.  Mayers,  126  Cal.  549,- 
58  Pac.  1048. 

Default  in  payment  of  installments.  A 
decree  of  the  court  is  proper,  wliich  pro- 
vides for  a  sale  of  so  much  of  the  mort- 
gaged premises  as  may  be  necessary  to 
pay  the  installment  due,  and  that  there- 
after, as  more  shall  become  due,  the  plain- 
tiff may  apply  for  a  decree  that  more  of 
the  mortgaged  premises  shall  be  sold. 
Bank  of  Napa  v.  Godfrey,  77  Cal.  612;  20 
Pac.  142.  Where  a  note,  secured  by  mort- 
gage, provides  for  the  paynient  of  the  prin- 
cipal in  installments,  and  the  mortgage 
provides  that  in  case  of  failure  to  make 
the  payments  as  in  the  note  provided,  the 
property  ma}'  be  sold  and  the  ])roceeil3 
applied  to  pay  the  whole  amount  of  the 
note,  the  mortgagee  is  entitled  to  fore- 
close for  the  full  amount  of  the  unpaid 
installments  upon  default  in  the  payment 
of  any  of  them,  although,  by  the  terms  of 
the  note,  some  are  not  due.  Maddox  v. 
Wyman,  92  Cal.  674;  28  Pac.  838. 

Motion  for  order  of  sale.  Upon  a  subse- 
quent default  in  the  payment  of  principal 
or  interest,  the  proper  practice  is  to  apply 
by  motion,  and  not  by  petition,  for  a  sale 
of  more  of  the  mortgaged  premises:  an 
amended  petition  is  not  authorized,  but 
mav  be  treated  as  a  motion.  Bank  of  Napa 
v.  Godfrev,  77  Cal.  612;  20  Pac.  142;  Bvrne 
V.  Hoag,  126  Cal.  283;  58  Pac.  688.  Where 
the  court  does  not  determine  that  any 
sums  will  be  due  in  the  future,  an<l  no  i)ro- 
vision  is  made  in  the  decree  for  any  future 
sales  of  property  to  meet  the  installments 
to  become  due,  a  new  and  iudei>endent 
action  should  be  brought  to  sell  other 
portions  of  the  land  for  portions  of  the 
debt  which  subsequently  become  due;  but 


§§  729,731  ACTIONS  FOR  NUISANCE,  WASTE,  AND   TRESPASS.  882 

where  tie  court  makes  provision  for  future  ferior  liens.    Burnett  v.  Glas,  154  Cal.  249; 

sales   to    enforce   the   payment   of   further  97  Pac.  423. 

installments,    which   it    determines   will    be  Eight  to   successive  foreclosures  of  mortgages 

due    in    future,    the    simpler    and    less    ex-  payable    in    installments.      See    note    Ann.    Cas. 

pensive  mode  of  procedure  is  provided  by  proceedings   to   enforce   mortgage  for  part  of 

motion,    by    this   section.     Higgins    v.    San  debt.    See  note  37  L.  R.  A.  737. 

Diego  Sav.  Bank,  129  Cal.  184;  61  Pac.  943.  Decree  in  proceeding  to  enforce  mortgage  for 

_,''       .          „  ,.             --.T,                      ,.  part  01  aeot.    t^'f  note  ii  1j.  k.  a.    i4i. 

Priority  of  liens,      where  some  hens  are  Effect    of    foreclosure    by    taking    possession 

superior  to  a  mortgage  and   also  to   other  before    all   of   mortgage   debt   due.     See    note    3 

liens,  and  the  rest  are  inferior  to  the  mort-  ^-ii^^i^^i-  fo^ctosure  of  one  of  several  simul- 

gage,  the  decree  should  provide  that  prior  taneous  mortgages  upon  the  others.    See  note  39 

claimants    be    i)aid    as    if    there    were    no  L.  R.  A.  (N.  S.)  524. 

mortgage,  and  that  the  residue  be  applied,  CODE   COMMISSIONERS'  NOTE.    Grattan  v. 

t.      .   °    ^.l      „      . „„    „„  1    .1  „„    +^    f^ua   i„  Wiggins,    23    Cal.    16.      See    subd.    13    of    note   to 

first  to  the  mortgage  and  then  to  the  in-  ^  ^%^  ^^^^ 

§  729.     Oath  and  undertaking  of  commissioner.     Report  and  account  of 

sale.  Compensation  of  commissioner.  The  commissioner,  before  entering 
upon  his  duties,  must  be  sworn  to  perform  them  faithfully,  and  the  court 
making  the  appointment  shall  require  of  him  an  undertaking,  with  sufficient 
sureties,  to  be  approved  by  the  court,  in  an  amount  to  be  fixed  by  the  court, 
to  the  effect  that  he  will  faithfully  perform  the  duties  of  commissioner,  ac- 
cording to  law.  Within  thirty  days  after  such  sale,  the  commissioner  must 
file  with  the  clerk  of  the  court  in  which  the  action  is  pending,  a  verified  re- 
port and  account  of  the  sale,  together  with  the  proper  affidavits,  showing 
that  the  regular  and  required  notice  of  the  time  and  place  of  the  sale  Avas 
given,  which  report  and  account  shall  have  the  same  force  and  effect  as  the 
sheriff's  return  in  sales  under  execution.  In  all  cases  of  sales  made  by  a 
commissioner,  the  court  in  which  the  proceedings  are  pending  shall  fix  a 
reasonable  compensation  for  the  commissioner's  services,  but  in  no  case  to 
exceed  the  sum  of  ten  dollars. 

Legislation  §  729.  1.  Added  by  Stats.  1893,  does  not  require  the  commissioner  to  make 
^■st^'Amendment  by  Stats.  1901,  p.  159;  un-  ^  ^1"^?  affidavit,  or  to  file  it  anywhere, 
constitutional.    See  note  ante,  §  5.  and    it    IS    sufficient    if    the    record    shows 

Written  affidavit  of  commissioner  un-  c^af  G^^-^s  Par°3?'  ^^^  '''  ^^*'^"'  ^'^^ 
necessary      A    motion    to    vacate    a    judg-  Commissioner's    return    is    evidence    of 

ment,  not   void  on   its  face,  foreclosing  a  „„,         .    ^„+„,       *  +v         i       4;  i       i  j 

,'  1        j-i       4.1,      •    1  +    S„  1  sale.     A  return  of  the  sale  ot  land,  made 

mortgage,   made   after   the   ludgment   had  !,„„„„„•■  -,       .1  ■  .'■ 

,  %      1  ■    -u  i     4-    ■       1    „  by   a  commissioner,   under   this   section,   is 

become  final,   cannot  be   entertained   upon  ^U^^   f„„-,.  „    -i  ^         i,       1       tt-i! 

.,  1    li,   4.  -t-i.  4.1,    „.   „ffi  prim.a  facie  evidence  of  such  sale.    Hiber- 

the   ground   that   no   written   oath   or   am-  t,.     r,^^,    e    t     a  td      i    unr  /^  1    ir.o 

J      .?     4^  4.,  •     •  1  1     4.1  „  nia  bav.  &  L.  Soc.  v.  Boyd,  155  Cal.  193; 

davit  of  the  commissioner  who   made   the  —  -^    '       "«••         > 

sale  is  on  file  in  the  clerk's  office:  the  law 


100  Pac.  239. 


CHAPTER  II. 

ACTIONS   FOR    NUISANCE,   WASTE,    AND    WILLFUL    TRESPASS,   IN   CERTAIN 
CASES,  ON  REAL  PROPERTY. 

§  731.     Xuisance  defined.     Abatement  of.     Actions  §  734.     Measure  of  damages  in  certain   cases  un- 

instituted,  by  whom.  der  the  last  section. 

S  732.     Waste,  actions  for.  §  735.     Damages    in    actions    for    forcible    entry, 
5733.    Trespass    for    cutting    or    carrying    away  etc.,  may  be  trebled, 

trees,  etc.,  actions  for. 

§  731.  Nuisance  defined.  Abatement  of.  Actions  instituted,  by  whom. 
An  action  may  be  brought  by  any  person  whose  property  is  injuriously  af- 
fected, or  whose  personal  enjoyment  is  lessened  by  a  nuisance,  as  the  same 
is  defined  in  section  thirty-four  hundred  and  seventy-nine  of  the  Civil  Code, 
and  by  the  judgment  in  such  action  the  nuisance  may  be  enjoined  or  abated 
as  well  as  damages  recovered  therefor.  A  civil  action  may  be  brought  in 
the  name  of  the  people  of  the  state  of  California  to  abate  a  public  nuisance, 


883 


SIC   UTEKE,    ETC. NUISANCE,   WHAT    IS — PIUVATE    ACTION. 


§731 


as  the  same  is  defined  in  section  thirt^'-l'oiir  iuindiiMl  and  eij^hty  of  the  Civil 
Code,  by  the  district  attorney  of  any  county  in  which  such  nuisance  exists. 
or  by  the  city  attorney  of  any  town  or  city  in  which  such  nuisance  exists, 
and  each  of  said  officers  sliall  have  concurrent  ri^dit  to  briny:  such  action  for 
a  public  nuisance  existing  within  a  town  or  city,  and  such  district  attorney, 
or  city  attorney,  of  any  counfy  or  city  in  which  such  nuisance  exists  must 
brinjx  such  action  whenever  directed  by  the  board  of  supervisors  of  .sucli 
county  or  whenever  directed  by  the  legislative  authority  of  such  town  or 
city. 


definition.      Compare    Civ.     Code, 
3481;  see  also  Civ.  Code,  §§  3482, 


"Nuisance," 
§§  3470.  3480, 
3483,    3490. 

Public  nuisance. 

1.  Damages.     Civ.  Code,  §  3484. 

2.  Lapse  of  time  cannot  legalize.    Civ.  Code, 
§  3490. 

3.  Private  action  for.    Civ.  Code,  §  3493. 

4.  Common-law  remedy.     Ante,  §  18. 

5.  Power  of  board  of  health  to  abate,  in  San 
Francisco.    See  Pol.  Code,  §  3028. 

Legislation  §  731.  1.  Enacted  March  11,  1872 
(reeiiaelraent  of  Practice  Act,  §  249),  and  then 
read:  "Auythine  which  is  injurious  to  health,  or 
indecent,  or  offensive  to  the  senses,  or  an  ob- 
struction to  the  free  use  of  proi)erty.  so  as  to 
interfere  with  the  comfortable  enjoyment  of  life 
or  property,  is  a  nuisance,  and  the  subject  of  an 
action.  Such  action  may  be  brought  by  any  per- 
son whose  property  is  injuriously  affected,  or 
whose  personal  enjoyment  is  lessened  by  the  nui- 
sance; and  by  the  judgment  the  nuisance  may  be 
enjoined  or  abated,  as  well  as  damages  recov- 
ered." 

2.  Amendment  by  Stats.  1901,  p.  159;  un- 
constitutional.    See  note  ante.  §  .5. 

3.  Amended  by  Stats.  1905.  p.   130. 

Sic    utere    tuo   ut    alienum    non   Isedas. 

A  person  may  not  use  his  own  jiroperty, 
even  in  a  business  lawful  in  itself,  in  such 
a  manner  as  to  interfere  with  another  in. 
the  legitimate  use  of  his  property.  Tueb- 
ner  v.  California  Street  R.  R.  Co",  66  Cal. 
171;  4  Pac.  1162.  Accompanying  the  own- 
ership of  every  species  of  property  is  the 
corresponding  duty  so  to  use  it  as  that 
such  use  shall  not  be  an  abuse  of  the 
risrht  of  others.  People  v.  Gold  Run  etc. 
Mining  Co.,  66  Cal.  -1.38;  56  Am.  Rep.  80; 
4  Pac.  1152.  A  franchise  from  a  munici- 
pality to  a  railroad  company,  to  run  its 
cars  along  the  streets  of  a  city  does  not 
authorize  the  company  to  in.iure  materially 
the  ad.joining  proprietors  in  their  prop- 
erty rights.  Tuebner  v.  California  Street 
R.  R.  Co.,  66  Cal.  171;  4  Pac.  1162. 

Nuisance,  what  constitutes.  The  unwar- 
rantable use  of  projierty  by  one  person, 
which  works  an  injury  to  the  right  of 
another  in  the  enjoyment  of  his  own 
property,  produces  thereby  such  material 
annoyance,  discomfort,  and  inconvenience 
as,  in  law,  imports  damage  to  such  party. 
Meyer  v.  Metzler,  51  Cal.  142.  Where  a 
business  is  necessary  or  useful,  it  is  always 
presumable  that  there  is  a  proper  yilace 
and  a  proper  manner  for  carrying  it  on; 
but  it  can  hardly  be  said  that  that  is  a 
lawful  business  which  cannot  be  carried 
on  without  detriment  to  the  surrounding 
population.  Tuebner  v.  California  Street 
R.  R.  Co..  66  Cal.  171;  4  Pac.  1162.     Where 


one  of  two  owners  of  adjoining  lots  erects 
a  brick  building  on  his  lot,  one  wall  of 
which  leans  so  as  to  prevent  the  other 
owner  from  raising  and  repairing  his  own 
building,  such  brick  wall  is  a  nuisance, 
and  its  maintenance  imports  damage  to 
the  other  owner,  notwithstanding  the  fact 
that  it  is  safe  and  secure.  Mever  v.  Metz- 
ler,  51  Cal.  142.  Wrongfully  causing  water 
to  flow  upon  another's  land,  which  woubl 
not  flow  there  naturally,  is  to  create  a 
nuisance  per  se:  it  is  an  injury  to  the 
right  in  the  land,  and  it  cannot  be  con- 
tinued because  others  may  have  a  low  esti- 
mate of  the  damage  which  it  causes;  and 
especially  is  this  so,  where  the  continu- 
ance of  the  wrongful  act  might  riju-n 
into  a  right  in  the  nature  of  an  easement 
or  servitude.  Learned  v.  Castle,  78  Cal. 
454;  18  Pac.  S72;  21  Pac.  11;  and  see 
Merced  Mining  Co.  v.  Fremont.  7  Cal.  317; 
68  Am.  Dec.  262;  Hicks  v.  Michael,  15 
Cal.  107;  Leach  v.  Day,  27  Cal.  643;  More 
V.  Massini,  32  Cal.  59o";  Richards  v.  Dower, 
64  Cal.  62;  28  Pac.  113.  A  legitimate 
business,  founded  upon  a  local  custom, 
which  develops  into  such  a  force  as  to 
threaten  the  safety  of  the  peojde,  and 
destruction  to  public  and  private  rights, 
becomes  unreasonable,  because  dangerous 
to  public  and  private  rights,  and  such  cus- 
tom cannot  be  invoked  to  justify  the 
continuance  of  the  business  in  an  unlaw- 
ful manner.  People  v.  Gold  Run  I)itch 
etc.  Co.,  66  Cal.  138;  56  Am.  Reji.  SO;  4 
Pac.  1152.  The  fact  that  the  acts  com- 
plained of  are  made  a  misdemeanor,  and 
punishable  as  such,  does  not  make  them 
any  the  less  a  nuisance,  nor  imply  that 
the  legislature  intended  to  make  the  crimi- 
nal remedy  exclusive  of  the  civil.  Peojile 
v.  Truckee  Lumber  Co.,  116  Cal.  397;  53 
Am.  St.  Rep.  183;  39  L.  R.  A.  581;  48 
Pac.  374.  Neither  the  existence  of  a 
nuisance  nor  the  right  to  have  it  abated 
depends  upon  the  depreciation  in  the  value 
of  neighboring  property.  Meek  v.  De 
Latour,  2  Cal.  A  pp.  261 ;  83  Pac.  300. 

Private  action  for  private  nuisance. 
Where  a  nuisance  in  a  highway  affects  only 
the  i)laintifr  in  common  with  the  public 
at  large  in  the  use  of  the  highway,  he 
cannot  have  his  private  action;  but  if  the 
free  use  of  his  private  projierty  is  inter- 
fered with  by  such  nuisance,  he  may  have 
his  private  action  to  abate  the  same,  and 


§731 


ACTIONS  FOR  NUISANCE,  WASTE,  AND  TRESPASS. 


88^ 


the  question  whether  such  obstructions 
amount  to  a  nuisance  is  one  of  fact  for 
the  jury.  Blanc  v.  Klumpke,  29  Cal.  156. 
A  private  individual  may  maintain  an  ac- 
tion to  abate  an  obstruction,  which,  while 
obstructing  the  public  highway,  also  cuts 
off  access  from  his  premises  to  the  public 
highway,  and  thus  becomes,  as  to  him,  a 
private  nuisance;  his  complaint  being,  not 
that  it  obstructs  the  street  or  road,  but 
that  it  prevents  him  from  reaching  it. 
Hargro  v.  Hodgdon,  89  Cal.  623;  26  Pac. 
1106;  and  see  Aram  v.  Schallenberger,  41 
Cal.  449;  San  Jose  Ranch  Co.  v.  Brooks, 
74  Cal.  463;  16  Pac.  250.  An  obstruction 
of  a  private  right  of  way  is  a  nuisance, 
and  an  action  may  be  maintained  by  the 
owner  of  such  right  of  way,  and  for  the 
abatement  of  such  nuisance,  against  all 
persons  who  participate  in  maintaining 
the  same,  regardless  of  any  interest  in  the 
land  over  which  the  right  of  way  is 
claimed;  and  the  special  administrators  of 
a  deceased  owner  of  such  land  may  be 
joined  as  parties  defendant,  notwithstand- 
ing the  obstruction  was  originally  placed 
there  by  the  decedent,  of  whose  estate 
they  are  special  administrators.  Hardin 
v.  Sin  Claire,  115  Cal.  460;  47  Pac.  363. 
A  nuisance,  the  effect  of  which  extends 
to  the  dwellings  or  places  of  business  of 
other  persons  to  such  an  extent  as  to 
render  their  occupancy  materially  uncom- 
fortable, is  a  private  nuisance  as  to  each 
of  them,  for  which  each  one  thus  injured 
may  have  a  private  action,  though  there 
are  many  persons  thus  affected,  and  the 
result  will  be  to  promote  a  multitude  of 
suits.  Fisher  v.  Zumwalt,  128  Cal.  493;  61 
Pac.  82;  and  see  Lewiston  Turnpike  Co. 
V.  Shasta  etc.  Wagon  Eoad  Co.,  41  Cal. 
562;  Payne  v.  McKinley,  54  Cal.  532;  Sul- 
livan v.  Royer,  72  Cal.  248;  1  Am.  St.  Rep. 
51;  13  Pac.  655;  McCloskey  v.  Kreling,  76 
Cal.  511;  18  Pac.  433;  Gardner  v.  Stroever, 
89  Cal.  26;  26  Pac.  618;  Hargro  v.  Hodg- 
don, 89  Cal.  623;  26  Pac.  1106;  Lind  v. 
San  Luis  Obispo,  109  Cal.  340;  42  Pac. 
437;  Siskij'ou  Lumber  etc.  Co.  v.  Eostel, 
121  Cal.  511;  53  Pac.  1118;  Spring  Valley 
Water  Works  v.  Fifield,  136  Cal.  14;  68 
Pac.  108.  Multiplicity  of  actions  affonls 
no  good  reason  for  denying  a  person  all 
remedy  for  actual  loss  and  injury  which 
he  may  sustain  in  his  person  or  property 
by  the  unlawful  acts  of  another,  although 
it  may  be  a  valid  ground  for  refusing  re- 
dress to  individuals  for  a  mere  invasion 
of  a  common  and  public  right.  Lind  v. 
San  Luis  Obispo,  109  Cal.  340;  42  Pac. 
437.  A  private  nuisance  may  be  abated 
by  an  individual,  notwithstanding  a  city 
charter  authorizes  the  common  council  to 
abate  the  same.  Humphrey  v.  Dunnells, 
21  Cal.  App.  312;  131  Pac.  761.  Under  this 
section,  a  lot-owner  abutting  on  an  alley 
may  maintain  an  action  to  restrain  the 
owner  of  the  legal  title  from   obstructing 


the    way.     Smith    v.    Smith,    21    Cal.   App.. 
378;  131  Pac.  890. 

Private  action  for  public  nuisance.  A 
prescriptive  right  cannot  be  maintained 
against  a  public  nuisance,  where  the  ac^ 
tion  is  brought  by  a  private  party  who 
has  suffered  special  injury  in  consequence^ 
thereof.  Bowen  v.  Wendt,  103  Cal.  236;. 
37  Pac.  149.  A  private  person  may  main- 
tain an  action  for  a  public  nuisance, 
where  it  is  specially  injuriouj  to  himself; 
and  where  a  public  sewer  of  a  city  is  so 
constructed  as  to  cause  disagreeable  and 
offensive  odors  to  residents  along  a  creek 
into  which  the  sewage  is  emptied,  and 
sewage  matter  is  deposited  upon  the  plain- 
tiff's lot  and  near  his  house,  and  remains 
there  the  greater  part  of  the  year,  the 
plaintiff  suffers  a  special  injury  to  his  pri- 
vate property  and  private  rights,  which  is 
not  common  to  the  public  generally,  and 
he  may  maintain  an  action  to  abate  the 
nuisance.  Lind  v.  San  Luis  Obispo,  109 
Cal.  340;  42  Pac.  437.  A  complaint  for 
special  injury  to  plaintiff's  property  from 
a  public  nuisance  is  fatally  defective, 
where  it  fails  to  show  that  other  and 
adjacent  property-owners  in  the  town  will 
not  suffer  a  like  injury;  the  complaint  is. 
to  be  construed  most  strongly  against  the 
pleader;  and  the  failure  to  aver  therein 
that  there  are  other  property-owners  will 
not  preclude  the  presumption  that  there 
are  such,  when  the  premises  are  designated 
in  the  complaint  as  being  in  a  town,  which 
implies  an  aggregation  of  inhabitants  and 
a  collection  of  occupied  dwellings.  Siski- 
you Lumber  etc.  Co.  v.  Rostel,  121  Cal. 
511;  53  Pac.  1118.  The  mere  allegation 
that  an  alleged  nuisance  is  specially  in- 
jurious to  the  plaintiff'  is  insufficient,  in 
an  action  by  a  private  person  to  abate  a. 
public  nuisance,  being  a  mere  conclusion 
of  law:  the  specific  facts  must  be  alleged, 
showing  that  the  maijitenance  of  the  nui- 
sance results  in  a  special  injury  to  him. 
Spring  Vallev  Water  Works  v.  Fifield,  136 
Cal.  14;  68  Pac.  108. 

Injunction  to  prevent  or  abate  nuisance. 
An  alleged  nuisance  ought  not,  in  an  or- 
dinary case,  to  be  abated  by  a  jireliminary 
injunction,  since  it  may  appear  on  the 
trial  that  the  alleged  nuisance  was  not 
such,  or  that  the  plaintiff  had  no  right 
to  sue  for  its  abatement  in  his  own  name. 
Gardner  v.  Stroever,  89  Cal.  26;  26  Pac. 
618.  Where  a  private  nuisance  is  created,, 
which  results  in  the  depreciation  of  ad- 
joining property  owned  by  the  plaintiff, 
he  may  recover  damages,  and  also  enjoin 
the  further  commission  of  the  nuisance, 
or  have  it  abated.  Farmer  v.  Behmer,  9 
Cal.  App.  773;  100  Pac.  901;  Melvin  v. 
E.  B.  &  A.  L.  Stone  Co.,  7  Cal.  App.  327; 
94  Pac.  390.  An  obstruction  to  the  free 
use  of  property,  so  as  to  interfere  with  its 
comfortable  enjoyment,  is  a  nuisance,  and,, 
notwithstanding  it  existed  before  the  com 


885 


PUBLIC   ACTIONS   AGAINST    PUBLIC    NUISANCES — DAMAGES. 


§731 


mciu-ement  of  tho  action  to  abate  it,  it 
may  be  abated  by  a  mandatory  injniu'tion, 
•or  by  a  judgment  that  tho  obstruction  be 
removed  and  the  nuisance  abated.  Gard- 
ner V.  Stroever,  89  Cal.  26;  2(J  Pac.  618. 
The  owner  of  an  incorporeal  hereditament, 
though  he  may  have  no  estate  in  the  land, 
shows  a  suflicient  case  in  equity  to  sus- 
tain an  injunction,  where  the  complaint 
avers  [lossession  and  the  right  to  the  pos- 
session of  a  toll-roail  foi  the  purpose  of 
collecting  tolls  thereon,  and  that  the 
county,  through  its  board  of  supervisors, 
interferes  with  and  obstructs  the  free  use 
and  enjoyment  of  his  property  by  depriv- 
ing him  of  his  tolls.  Welsh  v.  Plumas 
County,  80  Cal.  338;  22  Pac.  254.  The 
right  to  an  injunction  to  prevent  a  nui- 
sance does  not  depend  upon  the  extent  of 
the  damage,  measured  by  a  money  stan- 
<lard:  the  maxim,  Ue  minimis  non  curat 
lex,  does  not  apply:  the  main  object  of  the 
action  is  to  declare  a  nuisance,  and  to 
prevent  the  continuance  by  a  mandatory 
injunction.  Learned  v.  Castle,  78  Cal.  454; 
Is'Pac.  S72. 

Public  actions  to  abate  public  nuisances. 
A  county  has  a  special  interest  in  the 
preservation  of  county  roads,  which  au- 
thorizes it  to  resort  to  such  remedial  meas- 
ures as  will  preserve  them  for  the  free 
and  unobstructed  use  of  the  public.  Sierra 
County  v.  Butler,  136  Cal.  547;  69  Pac.  418; 
and  see  People  v.  llolladay,  93  Cal.  241; 
21  Am.  St.  Kep.  186;  29  Pac.  54;  San  Fran- 
cisco v.  Buckman,  111  Cal.  25;  43  Pac. 
■396.  Where  the  cause  of  obstructions  in 
a  j)ublic  highway  is  remote  from  such  high- 
way, and  the  road-overseer  has  no  author- 
ity to  remove  it,  and  the  obstructions  can 
■only  be  prevented  by  closing  defendant's 
mining  operations,  a  bill  in  equity  is 
proper  to  enjoin  the  defendant  from  com- 
mitting the  acts  complained  of,  and  such 
action  is  properly  brought  in  the  name 
of  the  county.  Sierra  County  v.  Butler, 
136  Cal.  547"^;  69  Pac.  418.  An  action 
brought  by  a  county  to  abate  a  nuisance 
caused  by  the  obstruction  of  a  public  high- 
way cannot  be  supported:  such  action 
must  be  brought  in  the  name  of  the  road- 
overseer.  San  Benito  Countv  v.  White- 
sides,  51  Cal.  416;  Bailev  v.  Dale,  71  Cal. 
34;  n  Pac.  804;  Hall  V.  Kauffman,  106 
€al.  451;  39  Pac.  756.  The  attorney- 
general  has  authority  to  institute  an  ac- 
tion in  the  name  of  the  people  to  enjoin 
or  abate  a  public  nuisance  caused  by  ob- 
structions upon  a  public  street  in  a  city 
(People  V.  Beaudry,  91  Cal.  213;  27  Pac. 
610) ;  and  a  city  has  the  same  right  to 
maintain  an  action  to  prevent  the  unlaw- 
ful obstruction  of  a  street  as  the  people 
of  the  state  have.  People  v.  Holladay,  93 
€al.  241;  27  Am.  St.  Rep.  146;  29  Pac.  54; 
San  Francisco  v.  Buckman,  111  Cal.  25;  43 
Pac.  396. 


Recovery  of  damages.  An  owner  of 
propiTty  may  recoxcr  damages  for  any 
interference  with  the  comfortable  enjoy- 
ment thereof.  Coates  v.  Atchison  etc.  \iy. 
Co..  1  Cal.  App.  441;  82  Pac.  640.  .\t 
common  law,  an  action  on  the  case  for 
damages  was  the  usual  remedy  for  injuries 
occasioned  by  a  nuisance,  but  in  that  ac- 
tion the  nuisance  could  not  be  or<lcre<l  to 
be  abated;  and  where  the  injury  could  not 
be  adetpiately  compensated  by  <lamages  at 
law,  or  was  likely  to  be  a  recurring  griev- 
ance, resort  could  be  had  to  equity;  and 
thus  a  suit  to  prevent  a  threatened  nui- 
sance was  brought  in  equity,  as  that  court 
alone  had  jurisdiction.  This  section,  ije- 
fining  a  nuisance,  declares  it  to  be  tho 
subject  of  an  action,  and  that  it  may  be 
enjoined  or  ordered  to  be  abated,  and  that 
the  judgment  may  also  award  damages  for 
the  injury.  The  relief  that  was  obtainable 
in  equity  must  still  be  sought  in  that 
forum,  for  the  statute  makes  no  change  in 
that  respect,  but  simply  permits  the  re- 
covery of  damages  in  the  same  action  with- 
out resorting  to  a  separate  action  at  law, 
the  claim  for  damages  being  treated  as  a 
mere  incident  to  the  main  action.  Court- 
wright  V.  Bear  Kiver  etc.  Mining  Co.,  30 
Cal.  573.  An  action  to  abate  a  nuisance 
is  an  action  in  equity,  and  the  demand 
for  damages  is  but  incidental  to  the  main 
purpose  of  the  suit.  Meek  v.  De  Latour. 
2  Cal.  App.  261;  83  Pac.  300.  The  fact 
that  the  defendant  remedied  the  evil  com- 
plained of  after  the  commencement  of  the 
action  does  not  affect  the  right  of  the 
plaintiff  to  recover  damages  for  injuries 
sustained  prior  to  that  time.  Tuebner  v. 
California  Street  R.  R.  Co.,  66  Cal.  171; 
4  Pac.  1162.  Where  the  evidence  clearly 
shows  that  the  plaintiff  was  largely  and 
seriously  damaged  by  water  tiowing  over 
his  land,  and  that  a  very  large  part  of 
the  water  was  caused  to  flow  there  by  the 
acts  of  the  defendant,  though  mingled  with 
a  larger  volume  of  water  flowing  from 
other  sources,  a  finding  that  the  damage 
caused  by  the  acts  of  the  defendant  was 
to  the  extent  of  only  one  dollar  is  not  sup- 
ported bv  the  evidence.  Learned  v.  Castle, 
78  Cal.  454;  18  Pac.  872.  The  use  of  an 
open  sewer  by  a  city,  in  the  vicinity  of 
the  plaintiff's  land,  constitutes  a  nuisance 
which  he  is  entitled  to  have  abated;  and 
although  the  plaintiff  was  damaged  by  the 
nuisance,  yet  where  he  failed  to  show  that 
he  was  damaged  in  the  amount  found,  or 
in  any  other  ascertainable  amount,  that 
part  of  the  judgment  awarding  damages 
cannot  be  sustained  on  appeal.  Ailams  v. 
Mo<lesto,  131  Cal.  501;  63  Pac.  10S3.  In 
an  action  to  recover  special  daniagi'.i 
caused  by  placing  an  obstruction,  in  the 
nature  of  a  nuisance,  in  the  street,  opposite 
the  residence  of  the  plaintiff,  if  the  de- 
creased value  of  the  premises  could  be  con- 


731 


ACTIONS  FOR  NUISANCE,  WASTE,  AND  TRESPASS. 


886 


sidered.  it  would  be  their  decreased  market 
value,  and  not  their  decreased  value  as 
a  family  residence;  so  that  evidence  of 
the  latter  is  not  admissible.  Hopkins  v. 
Western  Pacific  R.  R.  Co.,  50  Cal.  190. 
The  penalty  prescribed  by  the  Political 
Code  as  damages  for  the  obstruction  of 
a  highway,  is  to  be  enforced  only  as  pro- 
vided for  in  that  code;  hence,  where  an 
action  is  brought  in  the  name  of  a  county 
to  abate  such  an  obstruction  as  a  nui- 
sance, and  thus  resting  upon  the  general 
equity  powers  of  the  court,  and  not  on  the 
sections  of  the  Political  Code,  the  penalty 
cannot  be  recovered.  Sierra  County  v.  But- 
ler, 136  Cal.  547;  69  Pac.  418.  A  wrong- 
doer who  contributes  to  a  damage  cannot 
escape  liability  because  his  proportional 
contribution  to  the  result  cannot  be  accu- 
rately measured.  Learned  v.  Castle,  78 
Cal.  454;  18  Pac.  S72. 

Landlord's  liability  for  nuisance.  A 
landloril  is  not  liable  for  the  consequences 
of  a  nuisance  in  connection  with  a  build- 
ing in  the  possession  and  control  of  his 
tenant,  unless  such  nuisance  existed  at  the 
time  the  premises  were  demised,  or  the 
building  was  in  a  condition  likely  to  be- 
come a  nuisance  in  the  ordinary  and  rea- 
sonable use  of  the  same  for  the  purpose 
for  which  it  was  constructed  or  let,  and 
the  landlord  failed  to  repair  it.  Kalis  v. 
Shattuck,  69  Cal.  593;  58  Am.  Rep.  56S; 
11  Pac.  346;  Rilev  v.  Simpson.  83  Cal.  217; 
7  L.  R.  A.  622;  23  Pac.  293. 

Negligence,  nuisance  resulting  from. 
The  duty  of  exercising  ordinary  care  to 
prevent  injury  to  children  is  imposed  upon 
one  who  places  an  attractive  but  dangerous 
contrivance  in  a  place  frequented  by  chil- 
dren, knowing  or  having  reason  to  believe 
that  they  will  be  attracted  to  it  and  sub- 
jected to  injury  thereby;  such  doctrine  is 
not  confined  to  cases  of  turntables.  Pierce 
V.  United  Gas  etc.  Co.,  161  Cal.  176;  118 
Pac.  700.  The  process  of  blasting,  with- 
out reference  to  locality,  is  not  so  intrin- 
sically dangerous  as  to  be  ipso  facto  a 
nuisance,  rendering  the  blaster  liable  for 
injury;  his  liability  depends  upon  whether 
or  not  he  was  guilty  of  any  negligence. 
Houghton  V.  Loma  Prieta  Lumber  Co.,  152 
Cal.  500;  14  Ann.  Cas.  1159;  14  L.  R.  A. 
(N.  S.)  913;  93  Pac.  82;  Houghton  v.  Loma 
Prieta  Lumber  Co.,  152  Cal.  574;  93  Pac. 
377.  Where  a  highway  is  obstructed  un- 
der license  and  by  authority,  the  person 
who  placed  the  obstruction  is  chargeable 
only  with  ordinary  care  to  see  that  such 
obstruction  does  not  become  a  cause  of 
injury  to  any  person  lawfully  traveling  the 
highway;  but  where  a  superintendent  of 
streets,  after  knowledge  that  a  contractor 
has  obstructed  a  street,  whether  rightfully 
or  wrongfully,  fails  to  see  that  projier  pre- 
cautions are  taken  to  abate  the  obstruc- 
tion, or  to  warn  the  public  of  the  danger 
of   its   presence,   he   is   answeraVjle   for   in- 


juries caused  by  such  obstruction.  Stock- 
ton Automobile  Co.  v.  Confer,  154  Cal.  402; 
97  Pac.  881. 

Jurisdiction.  The  prevention  or  abate- 
ment of  a  nuisance  is  accomplished  by 
means  of  an  injunction,  either  prohibitive 
or  mandatory;  and  an  action  therefor  is 
within  the  equitable  jurisdiction  of  the 
court,  and  is  to  be  governed  by  the  prin- 
ciples prevailing  in  that  jurisdiction.  Mc- 
Carthy V.  Gaston  Ridge  etc.  Mining  Co.,. 
144  Cal.  542;  78  Pac.  7.  The  constitution 
has  conferred  upon  the  superior  court, 
original  jurisdiction  in  all  cases  in  equity, 
and  also  of  actions  to  prevent  or  abate- 
a  nuisance;  and  a  plaintiff,  seeking  judg- 
ment for  the  damages  sustained,  may  bring 
his  action  either  in  the  superior  court  or 
in  a  justice's  court,  according  to  the- 
amount  of  damages  claimed;  or,  seeking 
the  abatement  or  prevention  of  the  nui- 
sance, he  may  bring  his  action  only  in 
the  superior  court,  and  this,  whether  he- 
seeks,  in  addition  thereto,  to  recover  dam- 
ages in  excess  of  three  hundred  dollars,, 
or  even  if  no  damages  are  claimed.  Mc- 
Carthv  v.  Gaston  Ridge  etc.  Mining  Co.,. 
144  Cal.  542;  78  Pac.  7. 

Parties  to  action  for  abatement.  Where- 
different  persons  separately  appropriate 
the  waters  of  a  stream,  and  are  severally 
using  the  same  under  certain  regulation* 
as  to  the  time  and  manner  of  such  use,. 
they  are  tenants  in  common,  and  each  of 
them  may  maintain  an  action  to  enjoia 
a  trespasser  from  obstructing  or  diverting: 
such  waters.  Lytle  Creek  Water  Co.  v^ 
Perdew,  65  Cal.  447;  4  Pac.  426.  Any 
person  creating  or  assisting  to  create  or 
maintain  a  nuisance  is  liable  to  be  sued 
for  its  abatement  and  for  damages.  Hardin 
V.  Sin  Claire,  115  Cal.  460;  47  Pac.  363. 

Joinder  of  causes  of  action  for.  Any 
number  of  separate  causes  of  action  for 
distinct  nuisances  may  be  set  up  in  the- 
same  complaint,  without  being  subject 
to  demurrer  for  misjoinder:  different  ele- 
ments of  damage,  arisiue  from  the  same 
nuisance,  do  not  constitute  different  causes 
of  action.  Astill  v.  South  Yuba  Water  Co.^ 
146  Cal.  55;  79  Pac.  594. 

Evidence.  In  an  action  in  behalf  of  the- 
people  to  abate  a  nuisance  on  a  street^ 
proof  is  necessary  that  such  street  is  a. 
public  highway.  People  v.  Dreher,  101  CaL 
271;  35  Pac.  867;  and  see  People  v.  Sau- 
salito  etc.  Ferrv  Co.,  106  Cal.  621;  40  Pac. 
11. 

Res  adjudicata.  The  nature  of  an  actiott 
cannot  be  changed  by  changing  the  name- 
of  the  thing  objected  to:  an  action  to- 
abate  a  gate  as  a  nuisance  is  of  the  same 
nature  as  an  action  to  remove  the  same- 
gate  as  an  obstruction,  and  a  judgment  ia 
one  action  is  a  bar  to  an  action  in  the- 
other.  Phelan  v.  Quinn,  130  Cal.  374;  62 
Pac.  623. 


887 


APPEAL — NUISANCE,  DEFINED. 


7:n 


Appeal.  Pending  an  ajipeal  from  a 
judgment  enjoining  the  ojieration  of  a 
cement  jdant,  liecause  of  injury  arising 
to  adjoining  owners  of  property  from  the 
dust  produced  in  the  processes  of  manu- 
facture, the  supreme  court  will  not,  upon 
an  original  application  made  to  it,  stay 
the  operation  of  the  injunction,  althougli 
the  defendant  offers  to  furnij-h  a  hoiid  of 
indemnity  to  the  plaintiffs.  Hull)ert  v. 
California  etc.  Cement  Co.,  161  Cal.  231); 
38  L.  R.  A.  (X.  S.)  436;  118  Pac.  928. 

Abatement  of  nuisances  by  destruction.  See 
not.'S   2()  .\in.   Doc.    in;   44   .Vin.   lU'p.    111. 

When  abatement  of  private  nuisance  is  justi- 
fiable.    Si'f  note   4:i   Am.   Kci).  124. 

Summary  destruction  of  private  property  in 
abating  nuisance.    Sec  noti'  1   .\iiii.  (a.s.  34  5. 

Injunction  againr.t  threatened  nuisance.  See 
iiotos  73  Am.  Dec.  li:!;  2  Ann.  Cas.  2.'>0  ;  20  Ann. 
Cas.  9H3. 

Right  of  municipal  corporations  to  create 
nuisances.     See   note   84    Am.   St.   Hep.   91(5. 

Private  action  for  public  nuisance.  See  notes 
31  Am.  Dec.  132  ;   2r>  .Vin.  IJcp.  533. 

When  private  citizens  may  obtain  injunctions 
against  public  nuisances.  See  note  52  Am.  Rep. 
5  74. 

Right  of  private  citizen  to  destroy  liquor  ille- 
gally kept  for  sale.  See  note  26  L.  K.  A.  (N.  S.) 
99G. 

Who  may  obtain  injunction  against  public 
nuisance.    See  note  67  Am.  Dec.  203. 

Abatement  of  public  nuisances.  See  note  124 
Am.  SI.  Rep.  595. 

Suits  by  private  citizens  to  enjoin  nuisances. 
See  notes   1   Ann.  Cas.   38;    17  Ann.   Cas.   1128. 

Power  of  boards  of  health  as  to  ab?.tement  of 
nuisances.    See  note  80  Am.  St.  Hep.  214. 

Power  of  municipal  corporations  to  determine 
■what  is  and  to  remove  nuisances.  See  notes  2  7 
Am.  Dec.  98;   120  Am.  St.   I^ep.  372. 

Liability  for  nuisance  due  to  the  act  or  negli- 
gence of  &n  independent  contractor.  See  note 
76  Am.  St.  Rep.  399. 

Action  by  other  than  property  owner  for  dam- 
ages by  nuisance.     See   note   1   .\rin.   Cas.  272. 

Right  of  state  to  enjoin  act  which  is  both 
public  nuisance  and  crime.  See  notes  13  .\nn. 
Cas.  794;    33   L.  R.  A.  (N.  S.)  25. 

Right  of  state  to  enjoin  or  abate  nuisance  in 
city  street.    See  note  16  Ann.  Cas.  486. 

Right  of  municipality  to  maintain  suit  to  abate 
nuisance.    See  note  51    L.  R.  A.  657. 

Right  of  one  in  possession  to  maintain  action 
for  nuisance  without  proving  title.  See  note  34 
L.  R.  A.  (N.  S.)  560. 

Basis  of  recovery  by  abutter  for  injury  to 
property  from  railroad  in  street.  See  note  36 
L.  R.  A.  756. 

Persons  liable  for  nuisances.  See  note  118 
Am.  St.  Rep.  872. 

Liabilities  of  erecters  and  continuers  of  nui- 
sances.     See    note    14    .\m.    Dec.    336. 

Respective  liabilities  of  landlord  and  tenant 
for  nuisances  to  each  other  and  to  third  persons. 
See  note  50  Am.   Deo.  7  76. 

When  vendee  of  property  not  liable  for  nui- 
sance.    See    note    59    .Am.    Rep.    351. 

Liability  cf  property  owner  for  a  nuisance 
which  he  did  not  create.  See  note  86  .\ni.  St. 
Rep.  508. 

Liability  of  purchaser  of  property  for  con- 
tinuing nuisance.    See  note  13  Ann.  Cas.   I(i8. 

Liability  of  owner  of  vacant  property  for  using 
It  or  permitting  it  to  be  used  in  such  a  way  as 
to  collect  crowds,  to  the  injury  of  the  neigh- 
borhood.    See   note  11  L.  R.  A.  (N.  S. )    463. 

Liability  of  one  erecting  or  creating  nuisance 
upon  his  land  for  continuance  of  same  after  he 
has  parted  with  the  title.  See  note  25  L.  R.  A. 
731. 

Liability  of  contractor  to  third  persons  for 
nuisance  caused  by  defect  in  his  work  after  its 
completion  and  acceptance.  See  note  26  L.  R.  A. 
506. 


Liability  of  employer  for  nuisance  committed 
by  independent  contractor.    See  notoH  65  L.  K.  .\. 

751  ;     66  1..  K.  .\.    M(i,  94H;   14  L.  It.  A.  833. 

What  connection  with  or  participation  in 
nuisance  is  essential  to  liability.  See  note  32 
\j.  H.  A.  ( .N.  S. )  H90. 

Liability  of  municipalities  for  maintaining 
nuisances.  See  notoH  15  Am.  St.  Rep.  H-ib;  3ii 
.■\ni.  St.  Kep.  395. 

Injunction  against  nuisance  maintained  by  mn- 
nicipal  corporation.    Soi-  note  23  I,.  I;.  .\..ii)l. 

Liability  of  municipality  for  failuie  to  abate 
nuisance.    Sim-  note   i    .\iiii.  Cas.  96 1. 

Right  of  landlord  to  recover  damar;es  to  prom- 
ises caused  by  nuisance  existing  at  commence- 
ment of  tenancy.    See  note  6  .\nn.  (as.   15(». 

Right  of  lessee  to  maintain  suit  to  abate  a 
nuisance  affecting  possession.  .Si  !•  note  3  L.  R.  A. 
(N.  S, )  4  4  8. 

Obstructions  in  highway  preventing  access  to 
property  except  by  a  circuitous  route  as  a  special 
injury  entitling  owner  to  maintain  action  for 
damages,  or  to  abate  the  nuisance.  See  notes  6 
L.  R.  A.  (N.  S.)  227  ;  21  L.  K.  A.  (  N.  S.)  75. 

Interference  with  one's  use  of  a  highway  as  a 
special  damage  which  will  sustain  an  action  by 
him  against  the  wrong-doer.    See  note  28  L.  K.  A. 

(N.  S.)    1053. 

Right  as  against  public,  as  to  nuisance  created 
by  dsmming  back  water  of  stream.  See  note  59 
L.  R.  .\.  84  8. 

Limitations  against  nuisances.  Sec  note  20 
Am.  St.  Rep.  176. 

Joinder  of  parties  plaintiff  in  suits  to  abate 
nuisances.    Seo  note   71    Am.   i)eo.  311. 

Suits  and  actions  against  two  or  more  persons 
creating  or  maintaining  nuisance.  See  note  118 
Am.  St.  Rep.  868. 

Judgment  in  suit  to  abate  nuisance  as  bar  to 
action  for  damages  therefor.  See  note  58  L.  R.  A. 
735. 

Damages  for  nuisances,  when  not  severable. 
See  note  53  Am.  Rep.  123. 

Number  of  recoveries  for  nuisance.  See  note 
128  Am.  St.  Hep.  959. 

Doctrine  of  comparative  injury  in  suit  to  en- 
join nuisance.  See  notes  31  L.  It.  A.  (N.  S.) 
881  :  39  L.  R.  A.  (X.  S. )  580. 

CODE  COMMISSIONERS'  NOTE.  1.  Nui- 
sance, defined.  ".V  nuisance  oon.'-ists  in  unl:;\v- 
full.v  doing  an  act,  or  omittinc  to  peiform  a 
duty,  which  act  or  omission  either;  1.  .\nnoy8, 
injures,  or  endangers  the  comfort,  repose,  health, 
or  safety  of  others:  or,  2.  Offends  docency ;  or, 
3.  Unlawfully  interferes  with,  obstructs,  or  tends 
to  obstruct,  or  renders  dangerous  for  passage, 
any  lake,  or  navigable  river,  bay.  stream,  canal, 
or  basin,  or  any  public  park,  square,  street,  or 
liighway ;  or  4.  In  any  way  renders  otiior  per- 
sons insecure  in  life,  or  in  the  use  of  property." 
Civ.  Code,  Ann.  Ed.,  vol.  II,  p.  475,  §  3479. 

"This  definition  corresponds  with  that  given 
of  public  nuisance,  in  the  Penal  Code,  §  371,  ex- 
cept that  it  is  modified  to  embrace  private 
nuisance  also.  Numerous  authorities  on  tlie  dif- 
ferent branches  of  the  definition  are  collected 
in  a  note  to  the  section  of  the  Peual  Code  re- 
ferred to,  which  is  also  given  here,  pointing  to 
the  subdivisions.  See  also  People  v.  Vanderbill, 
26  N.  Y.  287;  25  How.  Pr.  139;  38  Barb.  282; 
Niagara  Falls  International  Bridge  Co.  v.  Great 
Western  Ry.  Co.,  39  Barb.  212.  The  following 
are  the  leading  decisions  which  support  the  sev- 
eral clauses  of  the  definition  in  the  te.\t. 

"Subi!.  1.  Rex  v.  Wigg,  Salk.  460;  2  Ld. 
Kaym.  1163;  Rex  v.  Pierce,  2  Show.  327;  Rex 
V.  Wharton.  12  Mod.  510;  Rex  v.  Smith.  1 
Stra.  704;  Rex  v.  Moore,  3  Barn.  &  Ad.  184; 
Hex  V.  White,  1  Burr.  333;  Re,\  v.  Davey,  5 
Ksp.  217;  Rex  v.  Llovd,  4  Esp.  200;  Rex  v. 
Neil,  2  Car.  &  P.  485;  Putnam  v.  Payne.  1.1 
.Johns.  (N.  Y.)  312;  Hincklev  v.  Emerson,  4 
Cow.  (N.  Y.)  351;  15  Am.  Dec.  383;  State  v. 
Baldwin,  1  Dev.  &  B.  (N.  C.)  195;  Common- 
wealth v.  Brown,  13  Mete.  (Mass.)  365;  Reg. 
V.  Lester,  3  >Iur.  (N.  S. )  570;  Douglass  v.  State, 
4  Wis.  387. 

"Subd.  2.  State  v.  Bertheol,  6  Blarkf.  (Ind.) 
474:  39  Am.  Dec.  442;  State  v.  Purse.  4  Mc- 
Cord  (S.  C),  472;  Crane  v.  State,  3  Ind.  193. 


§731 


ACTIONS  FOR  NUISANCE,  WASTE,  AND  TRESPASS. 


888 


"Subd.  3.  Hall's  Case,  Vent.  Law,  196;  1 
Mod.  76;  2  Keb.  846;  Rex  v.  Leach.  6  Mod. 
145  155;  Rex  v.  Grosvenor,  2  Stark.  511;  Rex 
V.  Hollis,  2  Stark.  536;  Rex  v.  Webb,  1  Ld. 
Ravm.  737;  Rex  v.  Russell.  6  Barn.  &  C.  566; 
Rex  V.  Trafford,  1  Barn.  &  Ad.  874;  Rex  v. 
Watts,  2  Esp.  675;  Rex  v.  Tindall,  1  Nev.  &  P. 
719;  6  Ad.  &  El.  143;  W.  W.  &  D.  316;  Rex 
V.  Ward.  4  Ad.  &  El.  384;  1  Har.  &  W.  703; 
Rex  V.  Pease,  4  Barn.  &  Ad.  30;  Rex  v.  Morris, 
1  Barn.  &  Ad.  441  ;  Reg.  v.  Botfield,  1  Car.  & 
M.  151;  Rex  v.  Smith,  4  Esp.  109;  Rex  v. 
Canfield,  6  Esp.  136;  Rex  v.  Sarmon,  1  Burr. 
516;  Rex  v.  Cross,  3  Camp.  224;  Rex  v.  Rus- 
sell, 6  East  427;  2  Smith.  424;  Rex  v.  Jones, 
3  Camp.  230;  Rex  v.  Cavlile,  6  Car.  &  P.  637; 
Rex  V.  Gregory,  2  Nev.  &  M.  478;  5  Barn.  & 
Ad.  555;  Reg.  v.  Scott,  2  Gale  &  D.  729;  3 
Ad.  &  El.  (N.  S.)  5'43;  3  Railw.  Cas.  187;  Reg. 
V.  Betts,  22  Eng.  L.  &  Eq.  240;  People  v.  Law- 
son,  17  Johns.  (N.  Y.)  277;  People  v.  Cun- 
ningham, 1  Denio  (N.  Y.),  524;  43  Am.  Dec. 
709;  Renwick  v.  Morris,  7  Hill  (N.  Y.),  575; 
Harlow  v.  Humistnn,  6  Cow.  (N.  Y.)  189;  Lan- 
cing V.  Smith,  8  Cow.  (N.  Y.)  146;  Dygert  v. 
Schenck,  23  Wend.  (N.  Y.)  446;  35  Am.  Dec. 
575;  Drake  v.  Rogers,  3  Hill  (N.  Y.),  604; 
People  V.  Lambier,  5  Denio  (N.  Y.),  9;  47  Am. 
Dec.  273;  Moshier  v.  Utica  etc.  R.  R.  Co,  8 
Barb.  (N.  Y.)  427;  Hart  v.  Mayor,  9  Wend. 
(N.  Y.)  571;  24  Am.  Dec.  165;  Hecker  v.  New 
York  Balance  Dock  Co.,  13  How.  Pr.  549;  and 
see  Hecker  v.  New  York  Balance  Dock  Co.,  24 
Barb.  215;  Peckham  v.  Henderson,  27  Barb. 
(N.  Y.)  207;  People  v.  Vanderbilt,  24  How. 
Pr.  (N.  Y.)  301;  Wetmore  v.  Atlantic  White 
Le.-id  Co.,  37  Barb.  (N.  Y.)  70;  Commonwealth 
V.  Wright,  Thach.  Cr.  Cas.  211;  Commonwealth 
V.  Gowen,  7  Mass.  378;  State  v.  Spainhour,  2 
Dev.  &  B.  Law  (N.  C),  547;  Commonwealth  v. 
Tucker,  2  Pick.  (Mass.)  44;  Commonwealth  v. 
Webb,  6  Rand.  (Va.)  726;  State  v.  Godfrey,  12 
Me.  361;  Commonwealth  v.  Ruggles,  10  Mass. 
391;  State  v.  Mobley,  1  McMullan  L.  (S.  C.) 
44;  State  v.  Brown,  16  Conn.  54;  Elkins  v. 
State,  2  Humph.  (Tenn.)  543;  Simpson  v.  State, 
10  Yerg.  (Tenn.)  525;  State  v.  Miskimmons,  2 
Carter  (Ind.),  440;  Commonwealth  y.  Rush,  14 
Pa.  186;  State  v.  Morris  etc.  R.  R.  Co.,  23 
N.  J.  L.  360;  Commonwealth  v.  Bowman,  3  Pa. 
•202;  Commonwealth  v.  Milliman,  13  Serg.  &  R. 
(Pa.)  403;  Commonwealth  v.  Chapin,  5  Pick. 
(Mass.)   199;   16  Am.  Dec.  386;   State  v.  Hunter, 

5  Ired.  (N.  C.)  369;  44  Am.  Dec.  41;  State  v. 
Commissioners,  3  Hill  (S.  C),  149;  State  v. 
Yarrell,  12  Ired.  (N.  C.)  130;  State  v.  Duncan, 
1  McCord  (S.  C),  404;  State  v.  Thompson,  2 
Strobh.  (S.  C.)  12;  47  Am.  Dec.  588;  Common- 
wealth V.  Alburger,  1  Whart.  (Pa.)  469;  State 
T.  Atkinson,  24  Vt.  448  ;  Newark  Plankroad  etc. 
Co.  V.  Elmer,  9  N.  J.  Eq.  754;  Attorney-General 
V.  Paterson  etc.  R.  R.  Co.,  9  N.  J.  Eq.  526; 
Works  V.  Junction  R.  R.  Co.,  5  McLean,  425; 
Fed.  Cas.  No.  18046;  State  v.  Phipps,  4  Ind. 
515  :  State  v.  Freeport,  43  Me.  198. 

"Subd.  4.  Rex  v.  White,  Burr.  333;  Rex  v. 
Smith,    Stra.    703;    White   v.    Cohen,    19    Eng.    L. 

6  Eq.  146;  Catlin  v.  Valentine,  9  Paige  (N.  Y.), 
575;  Brady  v.  Weeks,  3  Barb.  (N.  Y.)  157; 
Prescott's  Case,  2  City  Hall  Rec.  (N.  Y.)  161; 
Prout's  Case,  4  City  Hall  Rec.  (N.  Y. )  481; 
Lvnch's  Case,  6  City  Hall  Rec.  (N.  Y.)  61; 
People  V.  Townsend,  3  Hill  (N.  Y.),  479;  Hack- 
ney V.  State,  8  Ind.  494;  State  v.  Wetherall,  5 
Har.  (Del.)  487;  3  Bla.  Comm.  216;  Bell's  So. 
Law  Diet.,  tit.  'Nuisance.' 

"The  following  are  intended  to  be  excluded 
from  the  definition,  because  they  have  been  de- 
cided not  to  be  nuisances,  upon  grounds  deemed 
to  be  sufficient:  Exercising  banking  privileges 
■without  authority.  Attorney-General  v.  Bank  of 
Niagara,  1  Hopk.  Ch.  (X.  Y.)  354.  An  immi- 
grant depot,  if  not  kept  in  an  improper  man- 
ner. Phu'nix  V.  Commissioners,  1  Abb.  Pr. 
(N.  Y.)  466.  A  person  sick  of  a  contagious 
disease,  if  not  needlessly  exposed  so  as  to  en- 
danger the  public.  Boom  v.  Utica,  2  Barb. 
(N.  Y.)  104.  Several  offenses  which,  in  the 
Penal  Code,  are  made  the  subject  of  specific 
provisions,    have    been    held    indictable   under    the 


common-law  definition  of  nuisance.  See:  As  to 
throwing  gas-tar  into  public  streams.  Rex  v. 
Meadley,  6  Car.  &  P.  292.  As  to  obstructing 
railways,  Pen.  Code,  §  587;  Rex  v.  Holroyd,  2 
M.  &  Rob.  339.  As  to  keeping  gunpowder.  Pen. 
Code,  §375;  Rex  v.  Taylor,  2  Stra.  1167; 
People  V.  Sands,  1  Johns.  (N.  Y.)  78;  3  Am. 
Dec.  296;  Myers  v.  Malcolm,  6  Hill  (N.  Y.), 
292;  41  Am.  Dec.  744.  As  to  establishment  for 
gaming  and  other  useless  sports.  Pen.  Code, 
§§330-335;  Tanner  v.  Trustees  of  Albion,  5 
Hill  (N.  Y.),  121;  40  Am.  Dec.  337;  Updike 
V.  Campbell,  4  E.  D.  Smith  (N.  Y.),  570;  State 
V.  Doon,  R.  M.  Charlt.  (Ga.)  1;  State  v.  Haines, 
30  Me.  65.  As  to  other  disorderly  houses.  Pen. 
Code,  §316;  Smith  v.  Commonwealth,  6  B. 
Mon.  (Kv.),  21;  Bloomhuff  v.  State,  8  Blackf. 
(Ind.)  205;  State  v.  Bailey,  21  N.  H.  343;  Re:< 
V.  Williams,  1  Salk.  384;  Hackney  v.  State,  8 
Ind.  494.  As  to  dangerous  driving  through 
public  streets.  Pen.  Code,  §  396 ;  United  States 
V.  Hart,  Pet.  C.  C.  390;  Fed.  Cas.  No.  15316. 
As  to  exposure  of  the  person,  Pen.  Code,  §  311; 
Regina  v.  Webb,  1  Den.  C.  C.  R.  338;  13  Jur. 
42;  18  Law  J.  (M.  C.)  39.  As  to  digging  up 
or  injuring  highways,  Pen.  Code,  §  588;  Regina 
V.  Sheffield  Gas  Consumer's  Co.,  22  Eng.  L.  & 
Eq.  200;  State  v.  Peckard,  5  Har.  (Del.)  500. 
As  to  neglect  to  keep  ferry  in  repair.  State  v. 
Willis,  44  N.  C.  223.  As  to  profane  swearins:, 
State  V.  Graham,  3  Sneed  (Tenn.),  134.  Con- 
sult also,  upon  other  branches  of  the  criminal 
law  relative  to  what  are  nuisances,  the  follow- 
ing: Rex  V.  Wigg,  1  Ld.  Raym.  737;  Rex  v. 
Village  of  Hornsey,  1  Ro.  406 ;  Anonymous,  12 
Mod.  342;  Rex  v.  Record,  2  Show.  216;  Eex  v. 
Dunraven,  W.  W.  &  D.  577;  Rex  v.  Cross,  2 
Car.  &  P.  483  ;  Rex  v.  Neville,  Peake,  93  ;  Rex 
V.  Watts,  Mood.  &  M.  281;  Wetmore  v.  Tracy, 
14  Wend.  250;  28  Am.  Dec.  525;  Harris  v. 
Thompson,  9  Barb.  350;  Plant  v.  Long  Island 
R.  R.  Co.,  10  Barb.  26;  Leigh  v.  Westervelt,  2 
Duer  (N.  Y.),  618;  Williams  v.  New  York 
Central  R.  R.  Co.,  18  Barb.  (N.  Y.)  222; 
Lynch's  Case,  6  City  Hall  Rec.  (N.  Y.)  61; 
Dygert  v.  Schenck,  23  Wend.  446;  35  Am.  Dec. 
575;  People  v.  Cunningham,  1  Denio  (N.  Y.), 
524;  43  Am.  Dec.  709;  Renwick  v.  Morris,  7  Hill 
(N.  Y.)  575;  Peckham  v.  Henderson,  27  Barb. 
207;  State  v.  Commissioners,  Rilev'  (S.  C),  146; 
Ellis  V.  State,  7  Blackf.  (Ind.)  534;  Works  v. 
Junction  Railroad  Co.,  5  McLean,  425 ;  Fed. 
Cas.  No.  18046;  Douglass  v.  State,  4  Wis.  387; 
Commonwealth  v.  Upton,  6  Gray   (Mass.),  473. 

"What  constitutes  a  technical  nuisance  is 
hardly  capable  of  a  precise  definition:  the  law  is 
best  explained  by  particular  instances  of  an- 
noyance or  injury  adjudged  to  be  or  not  to  be 
a  nuisance.  An  action  may  be  maintained  where 
the  enjoyment  of  property  is  destroyed  or  sub- 
stantiallv  injured  or  depreciated.  Cropsey  v. 
Murphv,  1  Hilt.  (N.  Y.)  126 ;  and  per  Knight 
Bruce,  V.  C,  in  Walter  v.  Telfe,  4  De  G.  &  S. 
315,  this  language  is  held:  'Is  the  convenience 
more  than  fanciful,  or  one  of  mere  delicacy 
and  fastidiousness,  as  an  inconvenience  mate- 
rially interfering  with  the  ordinary  comfort 
physically  of  human  existence,  not  merely  ac- 
cording to  elegant  or  dainty  modes  and  habits 
of  living,  but  according  to  plain,  sober,  and 
simple  notions  among  the  English  people.'  See 
Garrison  v.  State,  14  Ind.  287;  Columlms  Gas- 
light etc.  Co.  V.  Freeland,  12  Ohio  St.  392.  In 
regard  to  the  remedy  by  injunction,  it  is  true, 
the  loss  of  health,  the  enjoyment  of  quiet  and 
repose,  and  the  comforts  of  home,  cannot  be  re- 
stored or  compensated  in  money.  1  Hilliard  on 
Torts,  pp.  549,  550  et  seq.  A  private  action 
may  not  be  sustained  for  a  public  nuisance, 
without  proving  special  and  peculiar  damages, 
narrower  v.  Ritson,  37  Barb.  (N.  Y.)  301;  Crom- 
melin  v.  Coxe,  30  Ala.  318;  68  Am.  Dec.  120; 
Mechling  v.  Kittanning,  1  (jrant,  416.  Finding 
a  proposed  railroad  'will  be  specially  injurious 
to  the  property  of  the  plaintiffs,  and  other 
property  similarly  situated,'  shows  a  special  and 
direct  injury  to  each  of  the  plaintiffs,  severally, 
not  a  remote  one,  and  not  merely  a  public 
nuisance.  Milhau  v.  Sharp,  27  N.  Y.  (13  Smith) 
612;    84    Am.    Dec.    314       The    case   of    Silton   v. 


889 


ACTIONS   AGAINST   UL'AKUIANS,    TENANTS,    ETC. 


§732 


De  Held,  2  Sim.  145,  elaborately  and  exhaust- 
ively diseussf-H  tile  wliole  subject.  Such  iiuiKaiices 
equity  will  restrain  bv  injunction.  Hamilton  v. 
Whitridge,  11  Md.  128;  69  Am.  Dec.  184; 
Pennsylvania  v.  Wheelin;;  etc.  Co.,  1  :j  How. 
(U.  S.)  518;  14  L.  Ed.  249.  Some  instances 
are  here  (tiven  of  what  are  adjudged  nuisances 
(see  1  Hilliard  on  Torts,  p.  557),  public  and 
private,  or  either:  An  offensive  smell;  anything 
offensive  to  decency,  as  a  distillery,  with  sties 
and  hogs,  or  offal,  renderin(^  waters  unwhole- 
some, etc.  Acts  renderinj;  waters  less  pure, 
which  are  used  for  the  ordinary  jjurposes  of 
life,  fatboilinfT  establishments,  soap-boiling,  sta- 
bles, sties,  and  slaughter-pens,  though  not  neces- 
sarily nuisances,  may  be  so  built  and  so  kept 
as  to  become  such.  So  a  livery-stable  near  a 
hotel,  powder-magazine  in  a  large  city,  slaughter- 
houses, and  melting-houses  in  cities;  so  dwelling- 
houses,  cut  up  into  small  apartments  and  crowded 
with  poor  people  in  filthy  condition,  calculated 
to  breed  disease;  and  it  may,  by  those  thereby 
annoyed,  be  abated  by  tearing  it  down,  especially 
during  prevalence  of  disease  like  Asiatic  cholera. 
But  a  person  sick  in  his  own  house  or  at  suit- 
able apartments  in  a  hotel  or  boarding-house  is 
not  a  nuisance.  These  are  a  few  instances  of 
the  great  many  nuisances  whi<'h  may  be  abated 
and  enjoined.  A  more  exteiuled  enumeration  of 
adju(l^(>d  nuisances  ma.v  be  found  by  consulting 
1  Hilliard  on  Torts,  pp.  557  et  seq.,  and  Cali- 
fornia Digest  of  Decisions,  tit.  'Nuisance.'  Any 
one  of  a  community  injured  by  a  nuisance  may 
abate  it,  he  being  presumed  to  be  aggrieved  by 
it,  whether  he  is  or  not.  Gunter  v.  Geary,  1 
Cal.  462.  House  on  fire,  a  nuisance  to  those 
near  it,  and  may  be  abated  on  special  grounds. 
Surocco  V.  Geary,  3  Cal.  69;  58  .\m.  Dec.  385. 
Overflowing  mining  claim  by  a  dam  of  defend- 
ants, a  nuisance,  which  may  be  abated  entirely, 
or  lowered  to  prevent  overflow.  Ramsav  v.  Chan- 
dler, 3  Cal.  90. 

"Adjudged  nuisances  in  California  cases: 
Erecting  house  in  highway.  Vol.  I,  p.  467. 
Diversion  of  watercourse,  a  private  nuisance. 
Tuolumne  Water  Co.  v.  Chapman,  8  Cal.  392. 
To  turn  aside  a  useful,  or  on  a  destructive,  ele- 
ment. Parke  v.  Kilham,  8  Cal.  77;  68  Am.  Dec. 
310.  Whether  wharf  public  nuisance,  question 
of  fact.  People  v.  Davidson,  30  Cal.  379.  Toll- 
gate  on  public  way.  El  Dorado  County  v.  Da- 
vison, 30  Cal.  520.  House  on  fire.  Surocco  v. 
Geary,  3  Cal.  69;  58  Am.  Dec.  385.  What  not 
nuisance  (mill  when  built)  Middleton  v.  Frank- 
lin, 3  Cal.  238.  Burden  of  proof  of  nuisance, 
in  street-railroad  case,  regarding  switches.  Car- 
son V.  Central  R.  R.  Co.,  35  Cal.  325.  Public 
may  be  private  nuisance,  and  the  injured  party 
may  maintain  action  therefor.  Yolo  County  v. 
Sacramento,  36  Cal.  193.  When  not  responsible 
for.  Brown  v.  McAllister,  39  Cal.  573.  Juris- 
diction of  county  court,  in  Grigsby  v.  Clear  Lake 
Water  Co.,  40  Cal.  396;  see  Code  Civ.  Proc, 
§731(5  249);  Stone  v  Bumpus,  40  Cal.  428." 
See  also  Civ.   Code,  §§  3480,  3481. 

2.  Nothing  done  under  express  authority  of 
statute  is  a  nuisance.  Civ.  Code,  Ann.  Ed.,  vol. 
11,    p.   481,  §  3482: 

"Harris  v.  Thompson,  9  Barb.  (N.  Y.)  350; 
Plant  v.  Long  Island  R.  R.  Co.,  10  Barb.  26; 
Leigh  V.  Westervelt,  2  Duer  (N.  Y.),  618; 
Williams  v.  New  York  Central  R.  R.  Co.,  18 
Barb.  (N.  Y.)  222;  compare  Renwick  v.  Morris, 
7  Hill  (N.  Y.),  575;  Clark  v.  Mayor,  13  Barb. 
(N.  Y.)  32.  A  municipal  corporation  may  com- 
mit a  nuisance.  2  Hilliard  on  Torts,  p.  405. 
Particular  instances  are  enumerated  in  the  fol- 
lowing cases:  Delmonico  v.  New  Y'ork,  1  Sandf. 
(N.  Y.)  222;  Brewer  v.  New  York,  30  Barb. 
(N.  Y.)  254;  Stein  v.  Burden.  24  Ala.  130;  60 
Am.  Dec.  453;    Akron  v.   McConib,   18  Ohio,   229; 


51  .\m.  Dec.  453;  Howell  v.  Buffalo,  15  N.  Y. 
512;  Ko88  v.  Maflison,  1  Ind.  281;  48  Am.  Dec. 
361;  Dayton  v.  Peasi-,  4  Ohio  St.  HO;  Stone  v. 
Augusta.  46  Me.  127;  Conrad  v,  TrUBtecB,  16 
N.  Y.  158;  Weighlman  v.  Wanhington,  1  Black 
(U.  8.).  39;  17  L.  Kd.  52;  Lloyd  v.  Nev  York, 
5  N.  Y.  369;  55  Am.  Dec.  347;  Lacour  v.  New 
York,  3  Duor,  406.  On  the  other  hand,  tho 
general  rule  is  stated  to  be,  that  an  action  does 
not  lie  against  a  municipal  corporation  for 
neglect  of  duty  imposed  by  a  general  law,  and 
not  by  its  charier,  unless  authorized  by  statute, 
etc.  See  2  Hilliard  on  Torts,  p.  406.  j  2a,  text 
and  notes  with  cases;  see  also  1  Hilliard  on 
Torts,  ijp.  550-552,  8§  4-4a.  'The  principle  i» 
laid  down,  that  if  one  curry  on  a  lawful  busi- 
ness in  8u<'h  a  manner  as  to  prove  a  nuisance 
to  his  neighbor,  he  is  answerable  for  the  dam- 
ages. Fish  V.  Dodge,  4  Denio  (N.  Y.),  311;  47 
Am.  Dec.  254.  But  it  is  also  said,  that  which 
is  authorized  by  un  act  of  the  legislature  can- 
not be  a  nuisance."  Per  Hand,  .T.  ;  First  Baptist 
Church  V.  Utica  etc.  R.  Co.,  6  Barb.  (N.  Y.) 
313;  Stoughton  v.  State,  5  Wis.  291;  Hatch  v. 
Vermont  etc.  R.  Co.,  28  Vt.  142;  see  Common- 
wealth V.  Reed,  34  Pa.  St.  275;  75  Am.  Dec. 
661;  Samuels  v.  Mayor,  3  Sneed  (Tenn.),  298; 
People  V.  Law,  34  Barb.  494 ;  Call  v.  Allen.  1 
Allen  (Mass.),  137;  Butler  v.  State,  6  Ind.  165; 
and  other  notes  there  to  be  found." 

3.  Successive  owners,  who  neglect  to  abate 
a  continuing  nuisance,  liable.  Civ.  Code,  Ann. 
Ed.,  vol.    II,  p.  481,  §  3483. 

"1  Hilliard  on  Torts,  p.  572,  §  15a,  it  is  said: 
'One  who  demises  premises  for  carrying  on  a 
business  necessarily  injurious  to  adjacent  proprie- 
tors, is  liable  as  the  author  of  the  nuisance.' 
Fish  v.  Dodge,  4  Denio  (N.  Y.),  311;  47  Am. 
Dec.  254;  Brady  v.  Weeks,  3  Barb.  157.  Writs 
of  nuisance  held  in  New  York  to  be  obsolete. 
Klintz  v.  McNeal,  1  Denio  (N.  Y.),  436.  The 
action  must  be  brought  against  the  party  erecting 
the  nuisance,  or  if  he  has  transferred  the  land  to 
another,  then  against  Ijoth  these  parties.  An 
action  against  the  alienor  alone  for  keeping  up 
and  continuing  a  nuisance  erected  by  his  grantor 
was  unknown  to  the  common  law.  Brown  v. 
Woodworth,  5  Barb.  550;  and  note  (a),  p.  572, 
1  Hilliard  on  Torts.  In  this  respect,  however, 
the  text  changes  the  common-law  rule.  It  is 
sufficient  to  show  the  nuisance  was  caused  by 
authority  of  the  defendant,  or  that,  having  ac- 
quired the  title  to  the  land  after  the  nuisance 
was  erected,  he  has  continued  it.  2  Greenlcaf  on 
Evidence,  p.  527,  §  472;  (2)  Pennruddock's  Case, 
5  Co.,  p.  100;  Davenport  v.  Lamson,  21  Pick. 
(Mass.)  72.  So  if  the  injury  fs  caused  by  a 
wall  erected  partly  on  defendant's  land,  case 
lies  for  the  nuisance,  though  the  wall  is  erected 
partlv  on  plaintiff's  land,  by  an  act  of  trespass. 
Well-s  V.  Ody,  1  M.  &  W.  452;  Winter  v. 
Charter,  3  Y.  &  J.  308.  .See  cases  in  point: 
Brown  v.  Cayuga  etc.  R.  R.  Co.,  12  N.  Y.  4H6; 
compare  Terry  v.  Mayor,  8  Bosw.   (N.  Y.)   504." 

4.  A  private  person  may  maintain  an  action 
for  a  public  nuisance,  if  it  is  specially  injurious 
to  himself;  but  not  otherwise.  Civ.  Code,  .•Vnn. 
Ed.,  veil.  II,  p.  484,  §  3493:  "When  injurious  to 
himself  (Pierce  v.  Dart,  7  Cow.  (N.  Y.)  609), 
but  not  otherwise.  Davis  v.  Mayor,  14  N.  Y. 
506;  67  Am.  Dec.  186;  Doughertv  v.  Bunting, 
1  Sandf.  (N.  Y.)  1;  Myers  v.  Malcolm,  6  Hill 
(N.  Y.),  292;  41  Am.  Dec.  744;  see  Lansing  v. 
Smith,  8  Cow.  (N.  Y.)  146;  4  Wend.  (N.  Y.)  9; 
21  Am.  Dec.  89;  First  Baptist  Church  v.  Schen- 
ectady etc.  K.  R.  Co..  5  Barb.  (N.  Y.)  79;  First 
Baptist  Church  v.  Utica  etc.  R.  R.  Co.,  6  Barb. 
313;  Pierce  v.  Dart,  7  Cow.  ( N.  Y.)  609;  Yolo 
Count  V  V.  Sacramento,  36  Cal.  193;  Grigsby 
V.  Clear  Lake  Water  Works,  4  0  Cal.  396." 


§  732.  Waste,  actions  for.  If  a  guardian,  tenant  for  life  or  years,  joint 
tenant,  or  tenant  in  common  of  real  property,  commit  waste  thereon,  any 
person  asrgrieved  by  the  waste  may  brinsz  an  action  asiainst  him  therefor,  in 
which  action  there  may  be  judgment  for  treble  damages. 


§732 


ACTIONS  FOE  NUISANCE,  WASTE,  AND  TRESPASS. 


890 


Waste.    Post,  §  746. 
Enjoining.    Post,  §  745. 

Legislation  g  732.  1.  Enacted  March  11,  1873; 
re-enactment  of  Practice  Act,  §  250. 

3.  Repeal  by  Stats.  1901,  p.  159;  unconsti- 
tutional.   See  note  ante,  §  5. 

Construction  of  section.  This  section  is 
not  penal,  but  remedial,  althougli  provid- 
ing for  treble  damages;  it  presents  an  in- 
stance in  which  no  new  right  of  action 
or  remedy  for  private  injury  is  created, 
but  the  damages  authorized  to  be  recov- 
ered are  enhanced.  Jahns  v.  Nolting,  29 
Cal.  507. 

Waste,  what  constitutes.  At  common 
law,  acts  which,  if  committed  by  a  tenant 
for  life  or  years,  would  constitute  waste, 
would  not  be  waste  if  committed  by  a 
tenant  in  common;  but,  by  statute,  a  co- 
tenant  is  now  liable  for  acts  which  would 
constitute  waste  if  committed  by  a  tenant 
for  life  or  years,  and  resort  must  now  be  had 
to  the  common  law  to  ascertain  what  acts 
would  constitute  waste.  McCord  v.  Oakland 
Quicksilver  Mining  Co.,  64  Cal.  134;  49 
Am.  Rep.  686;  27  Pac.  863.  A  vendee  of 
mines,  under  a  contract  of  sale,  with  a 
right  to  prospect  and  develop  the  mines, 
has  no  right  to  commit  waste  or  remove 
from  its  situs  that  which  constitutes  a  part 
of  the  realty,  other  than  ore-bodies  or 
minerals,  or  to  make  such  use  of  timber, 
and  the  like,  as  may  be  necessary  in  the 
working  of  the  mines.  Conde  v.  Sweeney, 
14  Cal.  App.  20;  110  Pac.  973;  16  Cal.  App. 
157;  116  Pac.  319.  A  tenant  for  years, 
taking  ore  from  a  mine,  the  sole  subject 
of  the  demise,  during  his  term,  is  not 
guilty  of  waste:  the  extraction  of  the  ore 
is  that  for  which  he  pays  rent.  McCord 
V.  Oakland  Quicksilver  Mining  Co.,  64  Cal. 
134;  49  Am.  Rep.  686;  27  Pac.  863. 

Tenant  in  common  may  be  sued  for 
"waste.  An  action  for  waste  may  be 
>)rought  against  a  tenant  in  common  (Scar- 
borough V.  Woodill,  7  Cal.  App.  39;  93 
Pac.  383) ;  but  one  of  several  tenants  in 
common  of  a  mine,  who  does  not  exclude 
his  co-tenants,  may  work  the  mine  in  the 
usual  way,  and  extract  ore  therefrom, 
without  being  chargeable  with  waste,  or 
liable  to  the  other  co-tenants  for  damages; 
and  an  injunction  will  not  be  granted,  at 
their  instance,  to  prevent  the  working  of 
the  mine.  McCord  v.  Oakland  Quicksilver 
Mining  Co.,  64  Cal.  134;  49  Am.  Rep.  686; 
27  Pac.  863. 

Damages.  Damages  are  not  necessarily 
confined  to  compensation  for  waste  and 
injury  only,  but  the  value  of  the  rents 
and  profits  may  enter  into  the  estimate 
of  damages.  Tewksbury  v.  O'Connell,  25 
Cal.  262. 

Treble  damages.  Where  an  act  of  waste 
is  done  under  an  honest  claim  of  right, 
or  as  the  result  of  an  honest  mistake  as 
to  the  defendant's  right,  it  would  not  be 
just  to  inflict  the  penalty  of  treble  dam- 


ages, and  no  strained  construction  of 
words  should  be  allowed  to  have  this 
effect;  hence,  the  court  does  not  abuse 
its  discretion,  where  it  refuses  to  treble 
the  damages  where  the  waste  was  not  com- 
mitted willfully,  wantonly,  or  maliciously. 
Isom  v.  Rex  Crude  Oil  Co.,  140  Cal.  678; 
74  Pac.  294. 

Injunction  to  prevent  waste.  Where 
cypress-trees  between  orange-orchards  are 
owned  in  co-tenancy,  and  one  of  the  ten- 
ants in  common  commits  waste  by  cutting 
down  some  of  such  line-trees,  an  injunc- 
tion will  lie,  at  the  suit  of  the  other 
co-tenant,  to  prevent  the  cutting  down, 
injuring,  or  destroying  of  any  of  the  re- 
maining trees  growing  on  the  line.  Sesr- 
borough  V.  Woodill,  7  Cal.  App.  39;  93 
Pac.  383.  Where  a  lease  of  land  for  sugar- 
beet  farming  provides  against  waste,  and 
that  the  land  is  to  be  farmed  in  accord- 
ance with  custom,  one  fourth  of  the  crop 
to  go  to  the  lessor  as  yearly  rental,  but 
does  not  provide  for  any  division  of  the 
tops,  which,  by  custom,  are  left  on  the 
ground,  to  be  plowed  under  for  fertiliza- 
tion, the  lessor  is  entitled  to  enjoin  the 
lessee  from  waste  by  diverting  three 
fourths  of  the  tops,  under  a  claim  of 
right  thereto.  Corey  v.  Struve,  16  Cal. 
App.  310;  116  Pac.  975. 

Terms  defined  and  explained.  The  com 
mon  law  must  apply  to  the  definition  of 
"waste,"  as  that  term  is  not  defined  by 
the  code.  Scarborough  v.  Woodill,  7  Cal. 
App.  39;  93  Pac.  383.  The  word  "waste" 
is  not  an  arbitrary  term,  to  be  applied  in- 
flexibly, without  regard  to  the  quantity 
or  quality  of  the  estate,  the  nature  and 
species  of  the  property,  or  the  relation 
to  it  of  the  person  charged  to  have  com- 
mitted the  wrong.  McCord  v.  Oakland 
Quicksilver  Mining  Co.,  64  Cal.  134;  49 
Am.  Rep.  686;  27  Pac.  863.  The  word 
"may,"  as  used  in  this  section,  is  not 
mandatory,  and  is  not  to  be  construed  to 
mean  "must,"  where  there  is  nothing  in 
the  connection  of  the  language,  or  in  the 
sense  or  policy  of  the  provision,  to  re- 
quire an  unusual  interpretation.  Isom  v. 
Rex  Crude  Oil  Co.,  140  Cal.  678;  74  Pac. 
294;  Isom  v.  Book,  142  Cal.  666;  76  Pac. 
506. 

Remedy  of  remainderman  for  waste.  See  note 
14  Am.  St.  Rep.  632. 

Eight  of  tenant  in  common  to  maintain  action 
for  waste  against  co-tenant.  See  note  15  Ann. 
Gas.  271. 

Bemedy  of  contingent  remainderman  for  waste. 
See  note  Ann.  Cas.  1912A,  543. 

Alteration  of  building  by  tenant  for  years  as 
waste.    See  note  Ann.  Cas.  1912C,  392. 

CODE  COMMISSIONERS'  NOTE.  Chipman  v. 
Emeric,  3  Cal.  283.  Dcmund  for  triple  damages 
must  be  inserted  in  the  complaint.  Chipman  v. 
Emeric,  5  Cal.  239;  Rees  v.  Emerick,  6  Serg.  &  R. 
(Pa.)  288;  Newcomb  v.  Butterfield,  8  Johns. 
(N.  Y.)  342;  I^ivingston  v..  Plainer,  1  Cow. 
(N.  Y.)  175;  Benton  v.  Dale,  1  Cow.  160.  In- 
junction to  restrain  waste.  Hicks  v.  Michael,  15 
Cal.  116. 


^91 


CUTTING    TIMBEK-  FOKCtHLE    ENTRY,    ETC.— TREBLE    DAMAGES.       §§733-735 


§  733.     Trespass  for  cutting  or  carrying  away  trees,   etc.,   actions  for. 

Any  person  avIio  cuts  down  oi-  can-ics  ofT  any  wood  or  iiiid.M-wood,  tit'.-,  or 
timber,  or  girdles  or  otherwise  injures  any  tree  or  timber  on  the  land  of 
another  person,  or  on  the  street  or  highway  in  front  of  any  person's  house. 
Tillage,  or  city  lot,  or  cultivated  grounds;  or  on  the  commons  or  })ublie 
grounds  of  any  city  or  town,  or  on  the  street  or  highway  in  front  thereof, 
without  lawful  authority,  is  liable  to  the  owner  of  such  land,  or  to  such  city 
or  town,  for  treble  the  amount  of  damages  which  may  be  assessed  therefor, 
in  a  civil  action,  in  any  court  having  jurisdiction. 

Treble  damages  for  injuries  to  trees.    See  Civ.        recover  his  actual  damages,  .loes  not  state 
•Cod.-,  §  334G.  a    case    in    which     the     .lamages    can    be 


Construction  of  section.     This  section  is 


the   true    boundary    line   of   the   lan.j,   the 


L^onsiruction  01  section,     this  section  is       plaintiff    cannot    recover    treble    damages 
not    mandatory.     Isum    v.    Rex    Crude    Oil       Barnes  v.  Jones,  .51  f'al  303 

€o..  HOCal.  67S;  74  Pac  294.  ' 


Statutory  penalties   for   cutting,   destroying  or 

carrying  away  timber.    See  note   1   Am    .st    IJ.p 

4SI1. 

Measure  of  damages  for  Injury  to  or  destruc- 
tion of  trees  or  shrubbery  not  valuable  for  their 
timber  or  firewood.  See  notes  11  L.  K.  A  (N  S  ) 
9.30;  28  L.  K.  A.  (N.  S.)  757 ;  37  L.  R.  A.  (N.  s!) 
111.5. 

Damages  for  injury  to,  destruction  of,  or  wrong- 
ful cutting  of  trees.  See  notes  I'J  L.  K  \  tj.i;i  • 
18  L.  U.  A.  (X.  S.)  244. 

CODE  COMMISSIONERS'  NOTE.  Sampson  v. 
Hammond,  4  Cal.  184;  Buckek-w  v.  Estell  5  Cal 
108. 


Treble   damages   allowed   when.     To   re- 

<'over  treble  damages  under  this  section, 
the  plaintiff  must  allege  and  prove  that 
the  defendant's  act  was  willful  arid  ma- 
licious. Stewart  v.  Sefton,  108  Cal.  197; 
41  Pac.  293.  A  complaint,  not  averring 
that  the  trespass  was  willful,  but  only 
that  the  entry  and  cutting  of  timber  was 
wrongful  and  without  the  plaintiff's  leave, 
does  not  come  within  the  purview  of  this 
■section,  and,  though  stating  an  action  good 
at  common  law,  entitling  the  plaintiff   to 

§  734.  Measure  of  damages  in  certain  cases  under  the  last  section.  Noth- 
ing in  the  last  section  authorizes  the  recovery  of  more  than  the  just  value 
of  the  timber  taken  from  uncultivated  woodland  for  the  repair  of  a  public 
highway  or  bridge  upon  the  land,  or  adjoining  it. 

Legislation  §  734.     1.    Enacted  March  11,  1873  tutional.     See  note  ante.  §  5. 

<based    on    Practice    Act,  §  252),    changing    "ati-  _~_      „„ 

thorizes"   from  "shall  authorize."  CODE  COMMISSIONERS'  NOTE.    Chipman  v. 

2.   Repeal   by    Stats.    1901,   p.    159;    unconsti-  Hibberd,  (i  Cal.  102. 

§735.  Damages  in  actions  for  forcible  entry,  etc.,  may  be  trebled.  If 
a  person  recover  damages  for  a  forcible  or  unlawful  entry  in  or  upon,  or 
■detention  of  any  building  or  any  cultivated  real  property,  judgment  may 
be  entered  for  three  times  the  amount  at  which  the  actual  damages  are 

assessed. 

rent,  only  by  way  of  punishment,  upon 
evidence  that  the  tortious  act  charged 
against  the  defendant  has  been  committed 
by  him  wantonly,  or  by  oppression,  or 
with  malice.  San  Francisco  etc.  Bidg. 
Societv  V.  Leonard,  17  Cal.  App.  254;  119 
Pac.  40.5. 

Treble  damages  are  allowed  by  court. 
The  complaint  need  not  contain  a  claim 
for    treble    damages,    but    rather    a    claim 


Treble  damages. 

1.  Forcible    entry    and    unlawful    detainer. 
Post,  §  1174. 

2.  Tenant   willfully   holding   over.     Sec    Civ. 
Code,  §  3345. 

Legislation  §  735.  1.  Enacted  March  11.  1872; 
Te-enactment   of   Practice   Act,  §  253. 

2.  Repeal  by  Stats.  1901,  p.  159;  unconsti- 
tutional     See  note  ante,  §  5. 


Construction  of  section.  The  construc- 
tion to  be  given  to  this  section,  in  con- 
nection with  §  1174,  post,  and  §  3294  of  for  the  damages  which  the  jury  is  co 
the  Civil  Code,  is,  that  tlie  power  of  the  petent  to  assess:  the  office  of  trebling  the 
jury  extends  only  to  the  assessment  of  damages  belongs  to  the  court.  Tcwksbury 
•damages  actually  sustained,  and  that  the  v.  O't'onnell,  2.3  Cal.  265.  The  court  may 
court  has  power  to  treble  the  damages  or  render  judgment  for  the   rent   due  at   thu 


§738 


ACTIONS   TO   DETERMINE   CONFLICTING  CLAIMS. 


892 


trial,  and  award  treble  damages  for  the 
whole  amount  of  rent  then  unpaid,  with- 
out amendment  of  the  complaint.  Nolan 
V.  Hentig,  13S  Cal.  281;  71  Pac.  440. 

Mandamus  and  appeal.  Mandamus  does 
not  lie  to  compel  the  trial  court  to  render 
judgment   for   treble    damages:    the   party- 


has  a  plain,  speedy,  and  adequate  remedy- 
by  appeal.    Early  v.  Mannix,  15  Cal.  149. 

CODE  COMMISSIONERS'  NOTE.  It  is  th& 
duty  of  the  court  to  treble  the  damages,  although 
treble  damages  are  not  demanded  in  the  com- 
plaint. Tewksbury  v.  O'Connell,  2.5  Cal.  262. 
But  mandamus  will  not  lie  to  compel  the  court 
to  treble  the  damages.  The  rt  medy  is  by  ap- 
peal.    Early  v.  Manni.\,  15  Cal.  149. 


CHAPTER  III. 

ACTIONS  TO  DETERMINE   CONFLICTING   CLAIMS   TO   EEAL  PEOPERTY,   ANI> 
OTHER  PROVISIONS  RELATING  TO  ACTIONS  CONCERNING  REAL  ESTATE. 


§  746. 

§  747. 
§  748. 


Damages  may  he  recovered  for  injury  to 

the    possession    after    sale    and    before 

delivery  of  possession. 
Action  not  to  be  prejudiced  by  alienation, 

pending  suit. 
Mining   claims,    actions    concerning,    to   be- 

governed  by  local  rules. 
§  749.     How   service   may   be  made   in   actions   re- 
lating to  real  property.      [Repealed.] 
§  749.     Determination    of    adverse    claims    to    real 

property.      Unknown      defendants.      Lis 

pendens. 
§  750.     Summons:    service,    and   proof   of   service. 

Publication  of  summons. 
§  751.     Judgment  must  not  be  entered  by  default. 

AVhen    entered,    is   conclusive.      TJomoHTr 

is  cumulative. 


Remedy^ 


§  738.  Parties  to  action  to  quiet  title.  Wills  in 
evidence.      Right  to  jury  trial. 

§  739.     When  plaintiff  cannot  recover  costs. 

§  740.  Where  plaintiff's  right  terminates  pending 
suit,  what  he  may  recover. 

§  741.  When  value  of  improvements  can  be  al- 
lowed as  a  set-off. 

§  742.  An  order  may  be  made  to  allow  a  party 
to  survey  and  measure  the  land  in  dis- 
pute. 

§  743.  Order,  what  to  contain,  and  how  served. 
If  unnecessary  injury  done,  the  party 
surveying  to  be  liable  therefor. 

§  744.  A  mortgage  must  not  be  deemed  a  con- 
veyance, whatever  its  terms. 

§  745.  When  court  may  grant  injunction  ;  during 
foreclosure;  after  sale  on  execution,  be- 
fore conveyance. 

§  738.  Parties  to  action  to  quiet  title.  Wills  in  evidence.  Right  to  jury 
trial.  An  action  may  be  brought  by  any  person  against  another  who  claims 
an  estate  or  interest  in  real  property,  adverse  to  him,  for  the  purpose  of 
determining  such  adverse  claim ;  provided,  however,  that  whenever  in  an 
action  to  quiet  title  to,  or  to  determine  adverse  claims  to,  real  property, 
the  validity  of  any  gift,  devise,  or  trust,  under  any  will,  or  instrument  pur- 
porting to  be  a  will,  whether  admitted  to  probate  or  not,  shall  be  involved, 
such  will,  or  instrument  purporting  to  be  a  will,  is  admissible  in  evidence ; 
and  all  questions  concerning  the  validity  of  any  gift,  devise,  or  trust  therein 
contained,  save  such  as  rmder  the  constitution  belong  exclusively  to  the  pro- 
bate jurisdiction,  shall  be  finally  determined  in  such  action;  and  provided, 
however,  that  nothing  herein  contained  shall  be  construed  to  deprive  a 
party  of  the  right  to  a  jury  trial  in  any  case  where,  by  the  law,  such  right 
is  now  given. 

Determining  claim  to  personalty.    Post,  §  1050. 
Parties.     Ante,  §§  379,  380,  381. 

Legislation  8  738.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  254),  (1)  omitting  the 
words  "in  possession,  by  himself  or  his  tenant,  of 
real  property,"  after  "any  person,"  (2)  chan- 
ging "any"  to  "another,"  and  (3)  at  end  of  sec- 
tion,  omitting   "estate,   or  interest." 

2.  Amended  by  Stats.  1895,  p.  72,  adding  the 
provisos. 

3.  Amendment  by  Stats.  1901,  p.  159;  un- 
constitutional.   See  note  ante,  §  5. 


Construction  of  section.  The  action  pro- 
vided Ijv  this  section  to  determine  adverse 
claims  is  an  improvement  upon  the  old 
bill  of  peace;  the  class  of  cases  in  which 
equitable  relief  could  formerly  be  sought 
in  quieting  title  is  enlarged;  and  it  is  not 
now  necessary  that  the  jilaintiff  shall  first 
establish  his  right  by  an  action  at  law; 
nor  is  it  necessary  that  the  adverse  claim 
shall  be  of  any  particular  character.    Cas- 


tro v.  Barry,  79  Cal.  443;  21  Pac.  946;  and 
see  Curtis  v.  Sutter,  15  Cal.  2.59.  Under 
this  section,  one  having  the  legal  title  is^ 
not  required  to  bring  his  action  at  law,, 
and  then,  after  recovery  of  the  possession,, 
to  file  a  bill  to  quiet  his  title  or  posses- 
sion against  equitable  claims  asserted  by 
the  defendant  in  ejectment,  and  to  have 
such  claims  decreed  to  be  invalid,  but 
may  secure  both  ends  in  one  proceeding. 
People  v.  Center,  66  Cal.  551;  5  Pac.  263. 
There  is  no  difficulty  in  so  conducting  a 
suit,  under  this  section,  as  to  protect  fully 
the  legal  rights  of  the  parties,  and  at  the 
same  time  to  secure  the  beneficial  result 
afforded  by  a  court  of  equity  in  bills  of 
peace,  which  is,  repose  from  further  liti- 
gation. People  V.  Center,  66  Cal.  551;  &■ 
Pac.  263;  Donahue  v.  Meister,  88  Cal.  121; 
22  Am.  St.  Rep.  283;   25  Pac.  1096;   Curtis 


893 


TITLE  OR   INTEREST  REC^LIRED  OF  PLAINTIFF. 


§738 


V.  Sutter,  15  Cal.  259.  The  puri)ose  of  this 
section  is  to  afford  a  renieily  .similar  in 
character  to  that  of  the  old  bill  uf  peace, 
but  extending  it  to  cases  which  the  latter 
remedy  did  not  reach.  Angus  v.  Craven, 
132  Cal.  691;  64  Pac.  1091.  In  a  suit 
under  this  section,  the  complaint  is  to  be 
treated  as  a  bill  in  equity,  and  a  general 
verdict  of  the  jury,  therefore,  is  to  be  dis- 
regarded. Brandt  v.  Wheaton,  52  Cal. 
4150;  Hancock  v.  Plummer,  66  Cal.  337;  o 
Pac.  514;  Reynolds  v.  Lincoln,  71  Cal.  183; 
9  Pac.  176;  12  Pac.  449.  An  action,  untier 
this  section,  to  cancel  a  void  tax  deed, 
can  accomplish,  in  effect,  nothing  more 
or  nothing  less  than  an  action  under  §  3412 
of  the  Civil  Code.  Guptill  v.  Kelsey,  6 
Cal.  App.  35;  91  Pac.  409.  The  McEnerney 
Act,  to  quiet  title,  is  remedial  in  its 
nature,  and  is  to  be  liberally  construed 
to  effect  its  main  purjiosc.  Ilvnes  v.  All 
Persons,  1!)  Cal.  App.  IS.";  li\j  Pac  253. 

Possession  by  plaintiff  as  prerequisite  to 
action.  Possession  in  plaintiff  is  not  now 
required,  in  order  to  maintain  an  action 
to  quiet  title  (People  v.  Center,  66  Cal. 
551;  5  Pac.  263;  Brusie  v.  Gates,  80  Cal. 
462;  22  Pac.  284;  Landregan  v.  Peppin, 
94  Cal.  465;  29  Pac.  771;  Casev  v.  Leggett, 
125  Cal.  672;  58  Pac.  264*;  Reiner  v. 
Schroeder,  146  Cal.  411;  80  Pac.  517); 
but,  prior  to  the  adoption  of  the  codes, 
possession  by  the  plaintiff,  at  the  time  of 
the  commencement  of  the  action,  was  es- 
sential. Rico  V.  Spence,  21  Cal.  504;  Lyle 
v.  Rollins,  25  Cal.  437;  Ferris  v.  Irving, 
28  Cal.  645;  Sepulveda  v.  Sepulveda,  39 
Cal.  13.  It  is  sufficient,  under  this  sec- 
tion, if,  while  the  plaintiff  is  in  possession 
of  the  property,  a  party  out  of  possession 
claims  an  estate  or  interest  adverse  to 
him:  he  can  immediately,  upon  knowledge 
of  the  assertion  of  such  claim,  require  the 
nature  and  character  of  the  adverse  estate 
or  interest  to  be  produced,  exposed,  and 
judicially  determined,  and  the  question  of 
title  be  thus  forever  quieted.  Curtis  v. 
Sutter,  15  Cal.  259;  People  v.  Center,  66 
Cal.  551;  5  Pac.  263;  6  Pac.  481.  This 
section  always  allows  an  action  to  be 
iirought  by  any  person  against  another 
who  claims  an  estate  or  interest  adverse 
to  him;  its  language  is  very  broail;  if  the 
plaintiff  is  out  and  the  defendant  is  in 
possession,  nevertheless  the  action  can  be 
maintained;  and  so,  where  the  jjlaintiff 
as  well  as  the  defendant  claims  to  be  the 
owner  in  fee,  the  question  as  to  who  has 
the  better  right  may  be  tried  in  an  action 
of  ejectment,  but  it  may  also  be  tried  in 
an  action  under  this  section.  People  v. 
Center,  66  Cal.  551;  5  Pac.  263;  Hvde  v. 
Redding,  74  Cal.  493;  16  Pac.  380.  This 
section,  giving  a  right  of  action  to  the 
party  in  possession,  does  not  confine  the 
remedy  to  the  case  of  an  adverse  claimant 
setting  up  a  legal  title,  or  even  an  equi- 
table title;  but  it  embraces  every  descrip- 


tion of  (  laini  whereby  the  plaintiff  might 
bo  de])rived  of  the  proj)erty,  or  its  title 
be  clouiled,  or  its  value  be  depreciated,  or 
whereby  the  plaintiff  might  be  incom- 
moded or  damnified  by  the  assertion  of  an 
outstanding  title  alreaiiy  held  or  to  grow 
out  of  the  adverse  condition.  Head  v. 
Fordyce,  17  Cal.  149;  Jovco  v.  Mc.\vov, 
31  Cal.  273;  89  Am.  Dec.  172.  A  plaintiff 
out  of  possession  is  authorized,  under  this 
section,  to  maintain  an  aition  to  quiet 
title;  and  the  defendant  in  such  action 
may  assert  a  legal  estate,  or  any  ecjuity 
which  he  may  claim  to  have  enfori-ed;  and 
the  judgment,  if  in  lavor  of  the  plaintiff, 
may  provide  for  a  restitution  of  the  pos- 
session, and  decree  the  <  laims  of  the  de- 
fendant to  bo  invalid.  People  v.  Center, 
66  Cal.  551;  5  Pac.  263.  In  quieting  title 
under  the  Md-'nerney  Act.  proof  of  actual 
possession  by  the  plaintiff  is  essential  to 
judgment.  Vanderbilt  v.  All  Persons,  163 
Cal.  507;  126  Pac.  158.  The  actual  pos- 
session required  to  be  had  to  invoke  the 
benefit  of  the  McEnerney  Act,  to  quiet 
title,  must  be  such  as  is  required  to  sus- 
tain title  by  adverse  possession,  when  such 
title  is  founded  upon  a  written  instrument. 
Loftstad  V.  Murasky,  152  Cal.  64;  91  Pac. 
1008. 

Title,  estate,  or  interest  required  of 
plaintiff.  Whatever  interest  the  plaintiff 
has  in  real  projterty  may  be  quieted.  Ger- 
man-American Sav.  Bank  v.  Gollmer,  155 
Cal.  683;  24  L.  R.  A.  (N.  S.)  1066;  102 
Pac.  932;  Mentrv  v.  Broadway  Bank  etc. 
Co.,  20  Cal.  App.  388;  129  Pac.  470. 
Whether  the  plaintiff,  in  an  action  under 
this  section,  is  the  ow'ner  in  fee  or  not, 
he  is  entitled  to  have  defendant's  adverse 
claim  determined.  Stoddart  v.  Burge,  53 
Cal.  394.  The  ow^ner  of  an  estate  for  years 
is  entitled  to  have  any  claim  adverse  to 
his  interest  determined.  German-American 
Sav.  Bank  v.  Gollmer,  155  Cal.  683;  24 
L.  R.  A.  (N.  S.)  1066;  102  Pac.  932.  The 
owner  of  an  estate  or  interest  in  land,  less 
than  an  estate  in  fee,  can  maintain  an 
action  to  determine  an  adverse  claim  ma<le 
by  another  person.  Pierce  v.  Felter,  53 
Cal.  18.  The  owner  of  a  leaseholil  interest 
in  real  property  may  maintain  an  action 
against  the  person  owning  the  fee  in  the 
demised  premises,  to  quiet  his  title  umler 
the  lease  against  any  adverse  claim  as- 
serted thereto  by  the  owner  in  fee. 
German-American  Sav.  Bank  v.  Gollmer. 
155  Cal.  683;  24  L.  R.  A.  (X.  S.)  1U66; 
102  Pac.  932.  A  party  who  has  been  in 
the  exclusive  ailverse  possession  of  lands 
for  a  period  of  time  which,  under  the 
statute  of  limitations,  vests  him  with  a 
title  thereto,  may  maintain  an  action 
against  a  party  claiming  under  a  record 
title,  to  have  the  claim  determined  and 
a<ljudged  null  and  voiu  as  against  him. 
Arrington  v.  Liscom,  34  Cal.  365;  94  Am. 
Dec.  722;  Licbrand  v.  Otto,  56  Cal.  242.     A 


§738 


ACTIONS   TO   DETERMINE   CONFLICTING   CLAIMS. 


89^ 


plaintiff,  entitled  to  the  possession  of  the 
premises,  may  bring  an  action  against  the 
defendant  to  obtain  a  judgment  that 
the  plaintiff  is  legally  the  owner  of  such 
premises,  that  the  defendant  has  no  legal 
estate,  or  any  such  equities  as  would 
entitle  him  to  retain  possession  as  against 
the  title  of  the  estate  under  which  he 
claims,  and  that  he  has  no  equities  which 
would  justify  a  decree  in  his  favor  as 
against  the  legal  owner  in  possession. 
People  V.  Center,  66  Cal.  551;  5  Pac.  263. 
To  maintain  a  suit  to  quiet  title,  by  a 
party  in  possession,  it  is  sufficient  that  he 
claims  under  a  deed  which  creates  an  equi- 
table estate,  or  even  a  right  of  possession. 
Smith  V.  Brannan,  13  Cal.  107.  The  trus- 
tor in  a  deed  of  trust  can  maintain  an 
action  to  quiet  title,  under  the  McEnerney 
Act.  Charles  A.  Warren  Co.  v.  All  Persons, 
153  Cal.  771;  96  Pac.  807.  In  an  action 
to  quiet  title,  the  question  is.  Has  the 
plaintiff  established  a  right,  under  the 
allegation  of  ownership,  such  as  will  en- 
title him  to  the  relief  asked?  and  where 
the  plaintiff's  title  is  merely  an  option 
to  purchase,  the  action  will  not  lie.  San 
Jose  Land  etc.  Co.  v.  San  Jose  Ranch  Co., 
129  Cal.  673;  62  Pac.  269.  The  interest 
of  a  vendee,  under  a  contract  for  the  sale 
of  land,  is  merely  equitable,  and  he  can- 
not maintain  an  action  to  quiet  title 
against  a  subsequent  grantee  of  the  legal 
title.  Los  Angeles  County  v.  Hannon,  159 
Cal.  37;  Ann.  Cas.  1912B,  1065;  112  Pac. 
878.  This  section  was  not  designed  to 
enable  one  who  has  an  executory  contract 
for  the  purchase  of  land  to  obtain  a 
judicial  construction  of  his  contract,  and 
it  cannot  be  construed  as  enabling  such 
person  to  call  in  those  claiming  adversely 
to  his  vendor,  and  compel  them  to  try 
their  claim  of  title,  when  a  judgment  in 
their  favor  would  not  bind  the  vendor. 
Cooper  v.  Birch,  137  Cal.  472;  70  Pac.  291. 
The  grantees  of  a  toll-road,  constructed 
pursuant  to  an  act  of  the  legislature,  have 
a  sufficient  estate  or  interest  in  the  land 
upon  which  the  wagon-road  rests  to  en- 
able them  to  sue  the  county,  under  this 
section,  to  determine  an  adverse  claim  by 
it  to  the  ownership  of  the  road  as  a  free 
public  highway:  the  right  of  way  for 
the  road  is  private  property,  though  held 
for  a  jiublic  use,  and  is  incident  and  neces- 
sary to  the  privilege  of  collecting  tolls 
thereon,  and  constitutes  an  interest  in  the 
land  upon  which  the  wagon-road  rests. 
Welch  V.  Plumas  County,  80  Cal.  338;  22 
Pac.  254.  An  action  cannot  be  brought 
to  quiet  title  to  land,  where  the  plaintiff 
deraigns  title  under  a  deed  from  the  state 
tide-land  commissioners,  the  state  not 
having  any  title  to  the  land,  which  was 
within  the  limits  of  the  pueblo  of  San 
Francisco.  United  Tjand  Ass'n  v.  Pacific 
Improvement  Co.,  139  Cal.  370;  69  Pac. 
1064.     In  an  action  to  quiet  title  to  land, 


against  a  defendant  in  possession,  where 
the  plaintiff'  counts  upon  title  alone,  he  can 
prevail  only  on  the  strength  of  his  own 
title;  and  where  he  deraigns  title  by  con- 
veyance from  a  grantor  subsequently  to  a 
conveyance  made  by  such  grantor  to  a 
third  party,  and  not  through  such  third 
party,  he  can  derive  no  support  from  the 
title  of  such  grantor,  whether  it  was  valid 
or  invalid.  McGrath  v.  Wallace,  116  Cal. 
548;  48  Pac.  719.  A  plaintiff,  who  pur- 
chases the  title  of  an  owner  who  is- 
estopped  to  claim  title  as  against  the  de- 
fendant, with  knowledge  of  the  facts  upon 
which  the  estoppel  is  based,  is  in  no  better 
situation  than  his  grantor,  and  is  bound 
b.y  the  estoppel.  Ions  v.  Harbison,  112  Cal. 
260;  44  Pac.  572.  An  action  lies  to  quiet 
title  to  a  city  lot,  the  sale  of  which  is- 
void,  as  having  been  made  under  a  void 
assessment  for  street-work,  the  contract 
for  which  unlawfully  delegated  power  to 
the  superintendent  of  streets  greatly  to 
increase  or  lessen  the  expense  of  the  work, 
and  was  thereby  rendered  invalid.  Chase 
v.  Scheerer,  136  Cal.  248;  68  Pac.  768. 
The  mere  fact  that  the  defenadnt  in  an 
action  to  quiet  title  is  shown  to  have  some 
valid  interest  or  estate  in  the  property 
in  controversy,  does  not  warrant  the  de- 
nial of  all  relief  to  the  plaintiff,  who  has- 
also  shown  a  valid  interest  therein.  Peter- 
son V.  Gibbs,  147  Cal.  1;  109  Am.  St.  Rep. 
107;  81  Pac.  121.  Where  the  title  of  the 
plaintiff  is  the  entry  of  the  land  in  con- 
troversy as  a  homestead  under  the  laws  of 
the  United  States,  it  is  a  material  ques- 
tion in  the  case,  whether,  at  the  date  of 
the  entry  or  homestead  filing,  the  land 
was  known  as  mineral  land,  within  the 
meaning  of  the  Federal  statute,  and  so- 
not  subject  to  entry  as  a  homestead. 
Austin  v.  Gagan,  3  Cal.  Unrep.  533 ;  30 
Pac.  790.  Where  the  plaintiff  makes  his 
proof  of  citizenship,  and  that  he  made 
a  discovery  of  gold-bearing  quartz  in  the- 
land,  and  shows  a  location  according  to 
the  requirements  of  the  law,  and  that  the 
land  is  public  land,  he  establishes  his  case 
prima  facie,  and  he  is  not  called  upon  to 
make  further  proof  that  the  land  was  un- 
occupied mineral  land  of  the  United 
States:  the  presumption  is  that  all  public 
land  is  unoccupied.  Goldberg  v.  Bruschi, 
146  Cal.  708;  81  Pac.  23.  In  an  action 
to  quiet  title  to  a  mining  claim,  if  it  is 
shown  and  found  that  the  plaintiff  has  no 
title,  it  becomes  immaterial  to  inquire  into 
the  rights  of  the  defendant,  or  as  to 
whether  he  has  failed  to  prove  that  the 
original  locators  of  his  claims  were  quali- 
fied, or  that  he  had  properly  marked  the 
boundaries  of  his  claims  by  monuments. 
Schroder  v.  Aden  Gold  Mining  Co.,  144 
Cal.  628;  78  Pac.  20. 

Title  to  what  property  or  rights  may  be 
quieted.  Water  flowing  in  its  natural 
channel   is   real   property,   and   while   flow- 


895 


ADVERSE  CLAIM   OR  ADVERSE  POSSESSION,  WHAT  IS. 


§738 


ing,  by  right,  through  a  canal  or  pipe, 
which  is  real  j)ro])erty,  and  owned  by  the 
owner  of  the  water,  it  is  aiipiirtonant  to 
the  canal  or  pipe,  and  therefore  real  prop- 
erty, and  an  action  to  quiet  the  title  to 
sucli  water  right  will  lie.  Fudickar  v.  East 
Riverside  Irrigation  Dist.,  109  Cal.  29;  41 
Pac.  1024.  An  action  may  be  brought, 
under  this  section,  to  determine  contlict- 
ing  claims  to  the  use  of  water  (Inyo 
Cons.  Water  Co.  v.  Jess,  161  Cal.  516;  119 
Pac.  934;  Merritt  v.  Los  Angeles,  162  Cal. 
47;  120  Pac.  1064;  ShurtletY  v.  Kchrer,  163 
Cal.  24;  124  Pac.  724);  and  to  quiet  title 
to  a  claim  of  a  right  of  way  for  a  water- 
ditch,  alleged  to  have  existed  as  an  ease- 
ment upon  the  land,  which  hud  been 
obviously  and  permanently  used  by  the 
plaintiff,  "whose  estate  was  transferred, 
for  the  benefit  thereof,  at  the  time  when 
the  transfer  was  agreed  upon  or  com- 
pleted" (Riverside  etc.  Irrigation  Co.  v. 
Jensen,  73  Cal.  550;  15  Pac.  131);  and  to 
determine  conflicting  interests  in  mining 
claims  (Madison  v.  Octave  Oil  Co.,  154 
Gal.  768;  99  Pac.  176;  Riley  v.  North 
Star  Min.  Co.,  152  Cal.  549;  93  Pac.  194; 
New  England  etc.  Oil  Co.  v.  Congdon,  152 
Cal.  211;  92  Pac.  180;  Bernard  v.  Parme- 
lee,  6  Cal.  App.  537;  92  Pac.  658;  Gari- 
baldi V.  Grillo,  17  Cal.  App.  540;  120  Pac. 
425);  and  to  determine  the  validity  of 
tax  titles  (Holland  v.  Hotchkiss,  162  Cal. 
366;  123  Pac.  258;  Campbell  v.  Canty,  162 
Cal.  382;  123  Pac.  266;  Boyer  v.  Ge'lhaus, 
19  Cal.  App.  320;  125  Pac.  916);  and  the 
owner  of  a  right  to  cut  growing  timber, 
and  of  easements  in  connection  therewith, 
may  maintain  an  .  action  to  quiet  title. 
Gazos  Creek  Mill  etc.  Co.  v.  Coburn,  8 
Cal.  App.  150;  96  Pac.  359.  Where,  in 
the  allegations  of  the  complaint  in  an 
action  to  quiet  title,  the  pleader  denomi- 
nates his  claim  as  a  mere  right  of  way, 
but  on  the  trial  the  language  of  convey- 
ances, which  are  part  of  the  complaint  and 
which  control  as  to  description,  shows  that 
there  is  a  definite  interest  or  estate  in  a 
canal  or  pipe  line,  that  interest  is  a  cor- 
poreal estate,  and  not  an  easement  or 
servitude,  and  to  that  estate  the  water 
right  is  appurtenant,  and  the  right  to 
which  may  be  determined  in  an  action 
under  this  section.  Fudickar  v.  East  Riv- 
erside Irrigation  Dist.,  109  Cal.  29;  41  Pac. 
1024. 

Adverse  claim,  what  constitutes.  Under 
the  maxim,  Omne  majus  eontinet  in  se 
minus,  an  adverse  claim  to  a  right  of  way 
situated  across  land  adversely  possessed 
is  necessarily  included  in  the  general  ad- 
verse claim  to  the  land;  and  where  the  title 
to  the  land  is  not  vested  in  the  adverse 
claimant  by  prescription  or  otherwise, 
and  the  intention  is  apparent  to  appropri- 
ate the  land  to  the  use  of  the  right  of  way, 
the  claim  thus  to  use  part  of  it  will,  as 
part   of    the    general    claim   to    the    land, 


be  adverse  to  the  owner.  Cavanaugh  v. 
Wholey,  143  Cal.  164;  76  Pac.  979.  Where 
one  is  the  owner  and  in  i)OHsession  of  land, 
and  another  asserts  a  claim  to  the  same 
property,  which  is  founded  neither  in  law 
nor  in  equity,  the  asserted  claim  is  neces- 
sarily adverse.  McNeil  v.  Morgan,  157  Cal. 
373;' 108  Pac.  69.  Where  the  title  to  the 
land  becomes  vested  in  the  i>arty  in  pos- 
session, either  by  prescription  or  otherwise, 
all  adverse  claims  to  easements  must,  from 
the  nature  of  the  case,  cease,  for  one  can- 
not have  an  adverse  claim  against  one's 
self;  but  this  reason  does  not  apply  to  the 
case  before  user,  and  hence,  unless  there  is 
a  merger,  if  the  intention  to  ai)propriato 
the  land  to  the  use  be  shown,  the  claim 
to  the  land  will  include  the  claim  to  the 
use  of  part  of  it,  and  this,  as  a  part  of 
the  general  claim,  will  be  adverse  to  the 
owner.  Cavanaugh  v.  Wholey,  143  Cal. 
164;  76  Pac.  979.  The  owner's  denial  of 
the  existence  of  any  leasehold  interest  in 
real  property  is  the  assertion  of  an  ad- 
verse claim  against  the  lessee.  German- 
American  Sav.  Bank  v.  Gollmer,  155  Cal. 
683;  24  L.  R.  A.  (X.  S.)   1066;  102  Pac.  932. 

Adverse  possession,  what  constitutes. 
Title  to  land  may  be  acquired  by  adverse 
possession  for  five  years,  within  the  lim- 
its of  an  inclosure,  although  the  inclosure 
was  made  under  a  mistaken  belief  as  to 
the  boundary  of  the  land,  where  it  is 
claimed,  as  matter  of  fact,  that  the  fences 
were  upon  the  line;  but  if  the  inclosure 
was  made  without  claiming  that  the  fences 
were  upon  the  line,  but  with  the  expecta- 
tion of  moving  them  to  the  true  line  when 
it  should  be  determined,  the  possession 
would  not  be  adverse,  and  the  statute 
would  not  run.  Woodward  v.  Faris,  109 
Cal.  12;  41  Pac.  781. 

Adverse  claims,  action  to  determine. 
The  object  of  an  action,  brought  under 
this  section,  is  to  settle  finally  and  deter- 
mine, as  between  the  parties,  all  conflict- 
ing claims  to  the  projierty  in  controversy, 
and  to  decree  to  each  such  interest  or  es- 
tate therein  to  which  he  may  be  entitled. 
Peterson  v.  Gibbs,  147  Cal.  1;  109  Am.  .St. 
Rep.  107;  81  Pac.  121.  This  section  au- 
thorizes an  action  for  the  purpose  of  de- 
termining any  adverse  claim  that  may  be 
asserted  therein  by  a  defendant  to  the 
land  in  controversy;  but  this  does  not 
mean  that  the  court  shall  simply  ascer- 
tain, as  against  a  {daintitY  shown  to  have 
a  legal  interest,  whether  or  not  such  de- 
fendant has  some  interest,  but  that  the 
court  shall  also  declare  and  define  the  in- 
terest held  by  the  defendant,  if  any,  so 
that  the  plaintiff  may  have  a  decree  finally 
adjudicating  the  extent  of  his  own  inter- 
est in  the  property  in  controversy.  Peter- 
son V.  Gibbs,  147  Cal.  1;  109  Am."  St.  Rep. 
107;  81  Pac.  121.  The  plaintifT  has  a 
right  to  be  quieted  in  his  title,  whenever 
any  claim  is  made  to  real  estate,  of  which 


§738 


ACTIONS  TO  DETERMINE   CONFLICTING  CLAIMS. 


896 


he  is  in  possession,  the  effect  of  which 
claim  might  be  litigation,  or  the  loss  of 
his  property.  Head  v.  Fonlyce,  17  Cal. 
149-  Horn  v.  Jones,  28  Cal.  194;  Joyce  v. 
McAvoy,  31  Cal.  273;  89  Am.  Dec.  172. 
An  action  may  be  brought  by  any  person 
against  another  vrho  claims  an  interest 
in  real  property  adverse  to  him;  and  this 
applies  to  the  claim  of  a  city  in  the  flow 
in  a  watercourse.  Amestoy  Estate  Co.  v. 
Los  Angeles,  5  Cal.  App.  273;  90  Pac. 
42.  A  contract  for  the  sale  of  real  estate, 
which,  for  any  reason,  is  incapable  of  spe- 
cific enforcement,  is  not  a  valid  claim  to 
an  interest  in  the  land,  and,  if  asserted, 
the  owner  has  a  right  to  have  his  title 
quieted  against  such  claim.  Jolliffe  v. 
Steele,  9  Cal.  App.  212;  98  Pac.  544.  After 
the  right  to  possession  is  proved,  the  court 
may,  under  this  section,  determine  the 
adverse  claims  of  the  defendant;  and  if 
the  plaintiff's  right  to  possession  is  under 
a  legal  title,  the  rights  of  the  parties  are 
to  be  adjudicated  as  if  the  plaintiff  had 
been  in  possession  at  the  commencement 
of  the  action.  Hyde  v.  Redding,  74  Cal. 
493;  16  Pac.  380.  One  tenant  in  common 
of  real  estate,  in  the  actual  possession 
thereof,  may  maintain  an  action  to  deter- 
mine the  validity  of  an  adverse  claim  of 
title  by  a  co-tenant.  Ross  v.  Heintzen,  36 
Cal.  3i3.  An  action  to  determine  an  ad- 
verse claim  may  be  maintained,  under  this 
section,  although  such  claim  rests  on  pro- 
ceedings which  are  void  on  their  face. 
Kittle  V.  Bellegarde,  86  Cal.  556;  25  Pac. 
55.  Under  this  section,  it  is  unnecessary 
for  the  plaintiff'  to  delay  seeking  the  equi- 
table interposition  of  the  court  until  he  is 
disturbed  in  his  possession  by  the  institu- 
tion of  a  suit  against  him.  and  until  judg- 
ment in  such  suit  is  passed  in  his  favor; 
he  can  immediately,  upon  knowledge  of 
the  assertion  of  such  claim,  require  the 
nature  and  character  of  the  adverse  estate 
or  interest  to  be  produced,  exposed,  and 
judicially  determined,  and  the  question  of 
title  be  thus  forever  quieted.  Curtis  v. 
Sutter,  15  Cal.  259;  Donahue  v.  Meister, 
88  Cal.  321;  22  Am.  St.  Rep.  283;  25  Pac. 
1096.  This  section  is  very  broad  in  its 
terms,  and  includes  all  adverse  claims, 
from  claims  of  title  in  fee  to  the  smallest 
leasehold;  and  it  is  the  duty  of  the  defend- 
ant to  set  out  his  interest,  when  called 
upon;  and  if  he  has  an  adverse  claim 
which  will  support  an  issue  at  law,  upon 
which  he  desires  a  jury  trial,  it  is  his  duty 
to  set  out  that  claim,  make  that  issue,  and 
demand  a  jury  trial.  Landregan  v.  Peppin, 
94  Cal.  465;  29  Pac.  771.  An  action  lies 
to  quiet  the  title  of  the  plaintiff  against 
an  asserted  right  of  the  defendant,  based 
upon  a  fraudulent  transfer.  Dorris  v. 
McManus,  3  Cal.  App.  576;  86  Pac.  909. 
Where  general  relief  is  demanded,  and  the 
allegations  of  the  complaint  to  quiet  title 
are  true,  the  plaintiff's  title  is  paramount 


to  that  of  a  defendant  claiming  a  lien  by 
mortgage  made  by  the  plaintiff,  obtained 
by  fraud;  and  whether  his  deed  to  the 
defendant  was  procured  by  fraud  and 
without  consideration,  or  whether  it  was 
in  fact  a  mortgage,  he  is  entitled  to  have 
his  rights  determined.  Leonis  v.  Hammel, 
1  Cal.  App.  390;  82  Pac.  349.  Where  the 
plaintiff  proves  his  title,  and  no  affirma- 
tive defense  is  shown,  the  defendant's 
claim  is  without  right,  whether  adverse  or 
not.  Dorris  v.  McManus,  4  Cal.  App.  147; 
87  Pac.  287.  Where  the  plaintiff  has  the 
legal  title  to  the  premises,  subject  to  a 
contract  made  by  his  predecessor,  giving 
the  defendant  the  right  to  remove  timber 
therefrom,  it  is  error  to  grant  a  nonsuit: 
the  plaintiff  has  the  right  to  have  the  ad- 
verse claim  of  the  defendant,  under  the 
timber  contract,  defined  and  determined. 
Peterson  v.  Gibbs,  147  Cal.  1;  109  Am.  St. 
Rep.  107;  81  Pac.  121.  The  distinction  be- 
tween suits  to  determine  adverse  claims 
under  the  old  chancery  practice,  and  ac- 
tions under  the  provisions  of  this  section, 
is  clear;  the  difference  is  not  merely  in 
form,  but  in  purpose:  in  the  former,  the 
proceeding  is  aimed  at  a  particular  in- 
strument, or  piece  of  evidence,  dangerous 
to  the  plaintiff's  rights,  and  which  may 
be  ordered  to  be  destroyed  in  the  hands 
of  whomsoever  it  may  happen  to  be;  while 
in  the  latter,  the  proceeding  is  for  the  pur- 
l^ose  of  stopping  the  mouth  of  a  person 
who  has  asserted,  or  who  is  asserting,  a 
claim  to  the  plaintiff's  property,  whether 
such  claim  is  founded  upon  evidence  or  is 
utterly  baseless.  Castro  v.  Barry,  79  Cal. 
443;  21  Pac.  946;  Dranga  v.  Rowe,  127  Cal. 
506;  59  Pac.  944.  One  claiming  title  to 
mining-ground  may  bring  an  action,  under 
this  section,  to  quiet  title,  against  a  de- 
fendant denying  his  title,  and  claiming 
title  thereto  by  a  former  judgment  of  the 
court  in  which  the  action  is  brought,  the 
former  action  being  of  the  same  nature, 
to  determine  the  adverse  claim  of  the  de- 
fendants to  the  property  described  in  the 
complaint.  Russell  v.  Brosseau,  65  Cal. 
605;  4  Pac.  643.  An  action  may  be 
brought,  under  this  section,  to  determine 
an  adverse  title,  claimed  ,by  the  defend- 
ant, to  mineral  lands,  veins,  lodes,  and 
ledges,  of  which  plaintiff  claims  to  be  the 
owner.  Bulwer  Consol.  Mining  Co.  v. 
Standar.l  Consol.  Mining  Co.,  83^  Cal.  613; 
23  Pac.  1109. 

Cloud  upon  title,  what  constitutes.  An 
apparently  good  record  title  constitutes  a 
cloud  upon  the  title  acquired  by  adverse 
possession,  under  the  statute  of  limita- 
tions; it  is  of  record,  and,  when  produced, 
makes  out  a  prima  facie  case,  which  can 
only  be  defeated  by  evidence  of  adverse 
possession  which  is  not  of  record,  unless 
established  in  a  judicial  proceeding,  but 
rests  in  parol,  and  is  liable  to  be  lost  and 
established    with    difficulty.     Arrington    v. 


897 


CLUUU    UPON    TITLE — FORM    Or    ACTION. 


§738 


Lisfom,  34  Cal.  ,365;  94  Am.  Dec.  722. 
Whore  the  sale  of  land,  made  by  8  tax- 
collector,  is  void  because  for  a  sum  j;rt'ator 
than  that  authorized  by  law,  as  §  3770  of 
the  Political  Code  does  not  require  that  the 
certificate  shall  specify  the  particulars  of 
the  "amount  paid,"  or  the  "amount  of 
assessment,"  non  constat  that  the  deed 
would  necessarily  do  so,  if  executed,  and 
if  it  did  not,  evidence  would  be  required 
dehors  the  recitals  of  the  deed  to  ascertain 
the  illeijality  of  any  of  the  items,  to  col- 
lect which  the  sale  was  made,  and  a  cloud 
would  thus  be  cast  ui)on  the  title.  Axtell 
V.  Gerlath,  67  Cal.  4S3;  8  Pac.  34;  Roman 
Catholic  .\rchbishop  v.  yhifiman,  69  Cal. 
586;  11  Pac.  343;  Cha.se  v.  Citv  Treasurer, 
122  Cal.  540;  5.1  Pac.  414. 

Cloud  upon  title,  action  to  quiet.     Where 
the  cause  of  action  set  uj)  is  adverse  i)0S- 
session  of  some  twelve  years,  under  a  con- 
veyance   which    (^ives    a    title    under    the 
statute  of  limitations,  and  an  outstanding 
conveyance  from  the  same  source  of  title, 
which,    under    the    circumstances    alleged, 
become  a  cloud,  the  ])laintift'  has  the  right 
to  have  the  same  adjudged  to  be  a  cloud 
and    to    have    it    removed.      Arrington    v. 
Liscom,  34  Cal.  365;  94  Am.  Dec.  722.     An 
adverse    claim,    estate,    or    interest,   which 
has   no  just  foundation   in    law  or   equity, 
is  a  cloud  upon  the  title,  and  impairs  the 
market  value  of  the  property  and  obstructs 
its  alienation,   and   is   the   basis  of  a   suit 
brought  by  one  of  the  defendants  against 
the  plaintiff  and  against  his  tenants,  and 
title  may  be  quieted  in  such  action,  under 
this    section.      Brooks    v.    Calderwood,    34 
Cal.    563.     The    plaintiff    has    a    right    of 
action  against  defendants  who  pretend  and 
give  out  in  speeches  that  he  has  no  valid 
title     to     the    land,    and    that     the    legal 
title  is  in   themselves,   and   that   they   are 
entitled    to    the    possession    thereof,    and 
thereby   east   a   cloud   ujjon   his   title,   and 
cause    many    persons    to    believe    it    to   be 
"worthless,  and  thereby  greatly  impair  its 
market   value.    Ayres   v.   Bensley,   32    Cal. 
620.     Where   an   alcalde   made   a   grant  to 
two  persons  jointly,  and   delivered  posses- 
sion   and    completed    the    proceedings,    the 
title    vested    in    the    two    jointly,    and    the 
claim  of  a  defendant  to  a  title  under  one 
of  the  grantees  was  a  cloud  upon  the  title, 
to  clear  which  a  suit  was  properly  brought, 
under  this  section.    Lick   v.   Diaz,   37   Cal. 
437.     The    object    of   this   section,    and    of 
§  739,   post,   is   to   enable   the   plaintiff,   in 
an   action   to  determine  an   adverse  claim, 
to  dispel  it  as  a  cloud  upon  his  title;  for, 
even   though   the   defendant   makes  no   ad- 
verse claim,  third  persons  may  regard  the 
plaintiff's   title   as   subject   to   the  ailverse 
claim  of  the  defendant,  which  would  thus 
be   a   cloud   upon   the   plaintiff's   title,   de- 
preciating its   value,  and   this   claim  he  is 
entitled    to   have    removed    by    the   decree 
of  the  court,  so  that  his  record  title  may 
1  Fair. — 57 


appear  perfect.  Pulwer  Consol.  Mining  Co. 
V.  Standard  Consol.  Mining  Co.,  83  Cal. 
5S9;  23  Pac.  11U2.  An  action  may  be  main- 
tained by  the  owner  of  property  subject 
to  an  invalid  street  assessment,  to  have 
it  ailjudged  invalid,  where  there  is  nothing 
n[)on  the  face  of  the  assessment  to  show 
that  the  lien  is  not  valid,  ami  where,  by 
reason  of  matters  outside  of  the  assessment 
as  it  is  recorded,  the  ajijiarent  lien  may  be 
sliown  not  to  be  a  valid  encumbrance":  in 
such  case  the  assessment  constitutes  a  cloud 
upon  the  title,  which  the  proi)erty-owner 
is  entitled  to  have  removed  by  a  court 
of  equity,  although  the  same  matters  may 
be  asserted  as  a  defense  to  an  action  for 
the  enforcement  of  the  assessment.  Bolton 
v.  Gilleran,  105  Cal.  244;  45  Am.  St.  Hep. 
33;  38  Pac.  881.  Where,  if  the  jdaintiff 
succeed,  it  must  be  on  the  ground  that 
no  title  passed  from  Spain  to  the  defend- 
ant by  mesne  conveyance,  and,  in  that 
event,  a  conveyance  from  the  ilefendant 
would  not  cast  any  cloud  upon  the  plain- 
tifl"s  title,  and  the  circumstances  would 
not  justify  an  action  under  this  section: 
the  conveyance  would  be  like  any  other 
conveyance  from  a  stranger  to  the  title, 
and  bo  of  no  effect,  (,'urtis  v.  Sutter,  15 
Cal.  259.  A  plaintiff,  holding  title  by 
virtue  of  a  sheriff's  deed,  made  upon  a 
decree  of  foreclosure,  may  maintain  an 
action  against  a  defendant  claiming  under 
an  invalid  mortgage  lien,  such  lien  being 
a  cloud  upon  the  plaintiff's  title,  which 
he  has  the  right  to  have  quieted.  Withers 
V.  Jacks,  79  Cal.  297;  12  Am.  St.  Rep.  143; 
21  Pac.  824.  Where  the  judgments  under 
which  the  defendant  is  said  to  claim  are 
void  upon  their  face,  they  constitute  no 
cloud,  and  no  basis  for  an  action  to  quiet 
title,  under  this  section.  Hyde  v.  Redding, 
74  Cal.  493;  16  Pac.  380. 

Form  of  action.  An  owner  of  land, 
who  verbally  permits  a  railroad  company 
to  enter  thereon  and  construct  and  operate 
its  railroad,  in  consideration  of  its  verbal 
})romise  to  erect  a  passenger-depot  thereon, 
at  which  all  such  trains  should  stop,  can- 
not, after  the  default  of  the  company  in 
erecting  such  depot  and  stopping  its  trains 
as  agreed,  maintain  an  action  to  quiet  his 
title  to  the  land:  the  remedy  is  an  ac- 
tion for  the  value  of  the  land  taken,  and 
damages  arising  therefrom.  Southern  Cali- 
fornia Rv.  Co.  v.  Slauson,  138  Cal.  342; 
94  Am.  S^t.  Rep.  58;  71  Pac.  352.  Whero 
the  plaintiff  avers  ownership  and  right  of 
possession  in  a  mining  claim,  and  that  de- 
fendants are  in  possession,  wrongfully  and 
unlawfully  withholding  the  same,  and 
taking  ore  therefrom,  and  prays  for  an  in- 
junction, and  for  a  decree  for  the  restitu- 
tion of  the  lands  and  the  mining  claims, 
the  fact  that  the  complaint  asks  for  an 
injunction  does  not  make  the  action  one 
of  an  equitable  nature:  the  action  is  one 
at  law,  and  in  form  ejectment.    Ilaggin  v. 


§738 


ACTIONS   TO   DETERMINE   CONFLICTING    CLAIMS. 


898 


Kelly,  136  Cal.  4S1;  69  Pae.  140.  An  ac- 
tion to  quiet  title  does  not  lie  in  favor 
of  the  owner  of  an  equitable  title,  for 
whom  the  defendant  holds  the  legal  title 
in  trust:  the  only  proper  remedy  for  such 
I)laintiff  is  an  action  to  enforce  the  trust, 
and  to  compel  a  conveyance  of  the  legal 
title.  Harrigan  v.  Mow'ry,  84  Cal.  456;  22 
Pac.  65S.  "Where  a  wife  purchases  prop- 
erty with  the  earnings  of  her  husband, 
after  marriage,  and  takes  title  in  her  own 
name,  as  her  separate  property,  without 
his  knowledge  or  consent,  and  holds  it 
adversely  to  him,  she  takes  it  in  trust  for 
the  marital  community;  and  the  husband 
cannot  maintain  an  action  against  the 
wife's  vendee  to  quiet  his  title  thereto: 
he  is  merely  entitled  to  have  it  adjudged, 
in  a  proper  action,  that  the  vendee  holds 
the  legal  title  in  trust  for  the  marital 
community.  Shanahan  v.  Crampton,  92 
Cal.  9;  28  Pac.  50.  An  action  to  quiet 
title  cannot  be  maintained  by  the  owner  of 
an  equitable  estate  against  the  holder  of 
the  legal  title,  under  a  complaint  con- 
taining only  the  usual  averments  com- 
monly made  in  such  actions;  but  where 
the  facts  upon  which  the  plaintiff's  claim 
is  based  are  alleged,  there  is  authority  to 
grant  any  proper  relief  within  the  limita- 
tions of  §  580,  ante,  and  appropriate  reme- 
dies, such  as  cancellation,  reconveyance, 
or  decrees  quieting  title,  or  establishing  or 
enforcing  trusts,  or  determining  the  prior- 
ities of  opposing  equities,  may  be  had,  as 
between  proper  parties,  under  our  system, 
whenever  they  are  required  upon  equitable 
considerations,  and  are  justified  by  the 
pleadings  and  proof.  Leonis  v.  Hammel,  1 
Cal.  App.  390;  82  Pac.  349. 

Parties.  All  the  property  of  the  de- 
ceased, real  and  personal,  remains  in  the 
possession  of  the  administrator  until  ad- 
ministration of  the  estate  is  had,  or  a 
decree  of  distribution  is  made  by  the  pro- 
bate court:  the  administrator,  until  then, 
is  the  proper  party  plaintiff  in  a  suit  to 
quiet  title  to  the  estate.  Curtis  v.  Sutter, 
15  Cal.  259.  An  administrator  may  main- 
tain a  suit  to  quiet  the  title  of  the  estate 
against  any  adverse  claim;  and  a  suit  to 
set  aside  and  cancel  a  deed  of  the  dece- 
dent, for  want  of  capacity  of  the  grantor, 
is,  in  effect,  a  suit  to  quiet  the  title  of  the 
estate  against  the  pretended  grantee.  Col- 
lins v.  O'Laverty,  136  Cal.  31;  68  Pac.  327. 
An  administrator  may  bring  an  action  to 
quiet  title  to  real  estate  which  belonged 
to  his  decedent:  such  action  may  be 
brought  by  any  one  who  has  the  right  of 
jiossession,  against  any  one  who  claims  an 
estate  or  interest  adverse  to  such  right. 
Pennie  v.  Hildreth,  81  Cal.  127;  22  Pac. 
398.  Under  this  section,  an  action  may 
be  brought  by  the  people  of  the  state,  not 
only  to  annul  a  patent  to  swamp-lands, 
but  also  for  a  decree  that  the  plaintiffs, 
out  of  possession,  are  the  legal  owners,  en- 


titled to  the  possession,  and  that  the  de- 
fendants have  acquired  no  rights  under  the 
act  of  the  legislature;  and  the  question 
whether  they  have  acquired  rights  under 
the  act  is  to  be  determined  upon  evidence 
that  the  defendants,  or  their  predecessors, 
did  or  did  not  reclaim  the  lands,  or,  at 
least,  that  the  governor  and  the  surveyor- 
general  had  so  certified,  as  required  by 
the  act  of  the  legislature.  People  v.  Cen- 
ter, 66  Cal.  551;  5  Pac.  263.  Without  any 
statute  conferring  the  power,  the  attorney- 
general  may  file  an  information  in  the 
nature  of  a  bill  in  chancery  to  annul  a 
patent  for  lands  granted  by  the  state  to 
an  individual,  where  the  matter  involved 
in  the  suit  immediately  concerns  the  in- 
terests of  the  state.  People  v.  Stratton,  25 
Cal.  242.  An  action  may  be  brought  by 
the  attorney-general,  in  the  name  and  in 
behalf  of  the  people  of  the  state,  to  deter- 
mine adverse  claims  to  real  property  owned 
by  the  state,  and  for  other  incidental  re- 
lief; and  he  may  institute  an  action  to 
quiet  the  title  of  the  state  to  lands  in 
the  navigable  waters  constituting  the 
harbor  of  the  cities  of  Oakland  and  Ala- 
meda, and  to  determine  adverse  claims 
made  thereto;  the  authority  which  he  has 
to  institute  such  proceedings  is  derived 
from  the  constitution  and  the  laws  of  the 
state,  which  give  him  authority  to  insti- 
tute an  action  in  any.  case  in  which  the 
rights  and  interests  of  the  state  are  di- 
rectly involved,  without  any  new  authority 
expressly  conferred  by  law.  People  v.  Oak- 
land Water  Front  Co.,  118  Cal.  234;  50 
Pac.  305.  The  grant,  b}^  the  state,  of  the 
soil  under  navigable  waters  carries  with 
it  no  right  to  obstruct  navigation,  and  the 
state  may  enjoin  its  grantees,  or  their 
successors,  from  erecting  or  maintaining 
structures  which  will  impair  or  interfere 
with  the  exercise  of  the  public  right  of 
navigation,  so  as  to  constitute  a  public 
nuisance;  and  where  each  of  several  de- 
fendants is  acting  independently  of  the 
others  in  the  erection  and  maintenance 
of  separate  structures,  obstructing  naviga- 
tion, each  may  be  sued  in  a  separate  action 
by  the  attorney-general  to  quiet  title  of 
the  state.  People  v.  Oakland  Water  Front 
Co.,  118  Cal.  234;  50  Pac.  305.  Under  this 
section,  the  holder  of  an  equitable  title 
has  the  right  to  come  before  the  court,  in 
an  action  to  quiet  title,  and  have  his 
equities  declared  superior  to  any  and  all 
opposing  equities;  although,  as  a  general 
rule,  the  possessor  of  an  equitable  title 
cannot  bring  an  action  to  quiet  such  title 
against  the  holder  of  a  legal  title.  Tuffreo 
v.  Polhemus,  108  Cal.  672;  41  Pac.  806. 
An  action  to  quiet  title  to  land  may  be 
maintained  to  determine  which  party  has 
the  superior  equity.  Buchner  v.  Malloy, 
155  Cal.  253;  100  Pac.  687.  An  action  to 
quiet  title  does  not  lie,  in  any  case,  in 
favor  of  the  holder  of  a  merely  equitable 


809 


JOINDER   OF    I'AI{T1P>; — JOINDER  OF    CAUSES    OF    ACTION. 


§738 


title  or  interest  in  land  as  aj^ainst  the 
holder  of  the  legal  title  (Kohinsoii  v.  Muir, 
151  Cal.  118;  90  Pac.  521;  Huidiner  v. 
Malloy,  155  Cal.  253;  100  Pae.  fi87;  Los 
Anjfoles  Countv  v.  Hannon.  159  Cal.  37; 
AiHi.  Cas.  1912B,  1065;  112  Pae.  878);  nor 
in  favor  of  the  owner  of  an  equitable  title, 
for  whom  the  defendant  holds  the  legal 
title  in  trust.  Ilarrigan  v.  Mowry,  S4 
Cal.  450;  22  Pac.  G5S.  If  an  action  for 
partition  lies  in  a  given  case,  then  an 
action  by  the  holder  of  an  equitable  title 
against  parties  claiming  adverse  equities 
should  be  recognized  and  countenanced, 
under  this  section.  Tuflfree  v.  Polhemus, 
108  Cal.  670;  41  Pac.  806.  Tn  an  action 
to  quiet  title,  wherein  the  defendant  was 
a  purchaser  under  an  execution,  and  the 
plaintiff  was  a  person  who  took  title  in 
ins  own  name,  to  defraud  a  creditor,  the 
title  is  in  such  purchaser.  Clifton  v.  Iler- 
rick,  16  Cal.  App.  484;  117  Pac.  622.  An 
action  may  be  brought,  under  this  section, 
by  the  owner  of  land,  to  quiet  his  title 
thereto,  against  the  person  who  holds  a 
unilateral  contract  for  the  purchase  of  the 
land,  but  who,  for  more  than  four  years 
after  the  execution  of  the  option,  has 
failed  to  make  tender  of  performance 
(Levy  V.  Lyon,  153  Cal.  213;  94  Pac.  881); 
and  an  action  may  be  brought,  under  this 
section,  by  the  owners  in  possession  of 
real  property,  to  determine  an  adverse 
claim  against  the  assignee  of  a  mortgage 
encumbrance  thereon,  without  any  pre- 
vious tender  or  offer  to  pay  the  amount 
due  on  the  mortgage.  Mentry  v.  Broadway 
P>ank  and  Trust  Co.,  20  Cal.  App.  388;  129 
Pac.  470.  The  equitable  owner  of  swamp- 
land, who  has  paid  the  state  fully  therefor, 
has  a  suf](ieient  title  to  support  an  action 
to  quiet  title  against  a  subsequent  patentee 
from  the  state.  Pioneer  Laud  Co.  v.  Mad- 
dux, 109  Cal.  633;  50  Am.  St.  Eep.  67;  42 
Pac.  295.  An  action,  under  this  section, 
may  be  maintained  by  a  plaintiff  claiming 
under  two  certificates  of  purchase  from 
the  state,  as  against  a  defendant  claiming 
under  certificates  of  purchase  under  a 
judgment  against  the  defendant  in  an 
action  foreclosing  and  annulling  his  inter- 
est in  certain  certificates  of  purchase. 
Hyde  V.  Redding,  74  Cal.  493;  16  Pac.  380. 
Where  the  trustee  of  a  resulting  trust 
conveyed  land  to  the  purchaser  by  an 
unrecorded  deed,  which  was  afterwards 
delivered  back,  and  then  destroyed  with 
the  consent  of  the  purchaser,  the  legal  title 
vested  in  the  purchaser,  and  did  not  re- 
turn to  the  trustee  by  the  subsequent 
destruction  of  the  deed:  the  fact  that  the 
record  title  remained  in  the  name  of  the 
grantor  is  not  sufficient  to  create  a  trust, 
and  the  jiurchaser  may  maintain  an  action 
to  quiet  his  title  to  the  land  so  conveyed 
to  him,  as  against  the  grantor.  Weygant 
V.  Partlett,  102  Cal.  224;  36  Pac.  417.  One 
claiming  to  be  the  owner  of  premises  may 


bring  an  action,  under  this  section,  against 
a  settler  ujion  jjublic  lands,  who  claims 
title  thereto  under  the  pre-emption  laws 
of  the  United  States.  Byers  v.  Ncal,  43 
Cal.  210.  An  action  may  be  brought,  un- 
der this  section  and  §  380,  ante,  to  try 
title  to  and  recover  possession  of  land,  by 
a  plaintiff  who  derives  title  under  a  i)atent 
from  the  Ihiited  States,  against  a  dt-feml- 
ant  holding  under  an  imi)erfect  and  un- 
confirmed Mexican  grant,  an<l  who  has  a 
right  to  plead  the  statute  of  limitations. 
Anzar  v.  Miller,  90  Cal.  342;  27  Pac.  299. 
One  who  was  in  adverse  possession  of 
jiremises  from  1853  to  1867,  at  which  time 
the  defendant  claims  that  the  plaintiff  ob- 
tained possession  through  collusion  with 
his  tenant,  is  subject  to  an  action  to  quiot 
title.  Walsworth  v.  Johnson,  41  Cal.  61. 
Where  a  mortgage,  made  to  a  husband 
and  wife  jointly,  was  forec!ose<l  V)y  the 
husband  and  the  wife's  administrator,  as 
co-plaintiffs,  and  the  title  under  foreclos- 
ure was  taken  in  trust  for  the  benefit  of 
the  husband  and  of  the  wife's  estate,  ac- 
cording to  their  respective  interests  in  tho 
decree,  by  one  who  afterwards  became 
administrator  of  the  wife's  estate,  the  hus- 
band cannot  maintain  an  action  to  quiet 
title  against  the  trustee,  either  individu- 
ally or  as  administrator  of  the  wife's  es- 
tate. Yoakam  v.  Kingcry,  126  Cal.  30;  58 
Pac.  324.  A  gift  to  a  wife,  by  her  hus- 
band, of  an  undivided  half  of  real  estate 
becomes  her  separate  property.  Lapique 
v.  Geantit,  21  Cal.  App.  515;  132  Pac.  78. 

Joinder  of  plaintiffs.  Devisees  in  sev- 
eralty, of  distinct  tracts  of  land,  under 
the  same  will,  have  a  common  source  of 
title,  and  may  unite,  as  plaintiffs,  to 
remove  from  their  title  the  cloud  of  a 
fraudulent  deed,  executed  by  their  testa- 
tor, which  affects  the  whole  land.  Gilles- 
pie V.  Gouly,  152  Cal.  643;  93  Pac.  t^riii. 
A  i)ortion  of  the  owners  of  a  mining  claim 
may  bring  an  action  to  quiet  their  title 
against  opposing  claimants,  without  join- 
ing the  other  owners  as  co-plaintiffs:  the 
rule  is,  that  tenants  in  common  may,  but 
need  not,  join  as  plaintiffs.  McClearv  v. 
Broaddus,  14  Cal.  App.  60;  111  Pac.  125.^ 

Joinder  of  defendants.  In  an  action  to 
quiet  title  to  a  water  right,  the  plaintiff 
may  join  as  defendants  all  persons  who 
claim  title  from  a  common  source  ad- 
versely to  that  claimed  by  him;  and  it  is 
immaterial  whether  they  are  a  voluntary 
association  or  are  copartners,  or  whether 
they  hold  whatever  rights  they  may  have 
as  individuals.  Senior  v.  Anderson,  115 
Cal.  496;  47  Pac.  454. 

Joinder  of  causes  of  action.  Three 
causes  of  action,  to  wit,  an  action  to  an- 
nul and  set  aside  a  fraudulent  convey- 
ance from  one  of  the  defendants,  an  action 
under  this  section  to  determine  adverse 
claims  to  the  real  property,  and  an  action 
of  ejectment  to  recover  possession  of  said 


§738 


ACTIONS   TO  DETERMINE   CONFLICTING   CLAIMS. 


900 


land,  with  the  rents  and  profits  thereof, 
cannot  be  united  and  joined  in  one  state- 
ment, without  being  separately  set  forth 
as  distinct  causes  of  action.  Pfister  v. 
Dascey,  65  Cal.  403;  4  Pac.  393.  A  cause 
of  action  to  acquire  title  to  lands  cannot 
be  united  with  a  cause  of  action  against 
a  surviving  trustee  to  compel  a  convey- 
ance: a  demurrer  for  misjoinder  of  actions, 
in  such  case,  should  be  sustained.  Rey- 
nolds V.  Lincoln,  71  Cal.  183;  9  Pac.  176. 

Complaint,  sufficiency  of.  A  complaint 
which  avers  that  the  plaintiff  is  the  owner 
and  in  possession  of  certain  land,  that  de- 
fendant claims  an  interest  therein  adverse 
to  the  plaintiff,  and  that  such  claim  is 
without  right,  has  every  element  of  a 
complaint  to  quiet  title.  Gray  v.  Walker, 
157  Cal.  3S1;  108  Pac.  278.  An  allegation 
in  the  complaint,  that  the  plaintiff  is  "the 
owner  in  fee"  of  the  premises,  is  a  suffi- 
cient statement  of  his  right  to  maintain 
an  action  to  quiet  title.  Davis  v.  Crump, 
162  Cal.  513;  123  Pac.  294.  A  complaint 
alleging  the  title  of  the  plaintiff  in  fee  to 
the  real  property  described,  and  averring 
that  the  defendant,  without  right,  makes 
some  claim  thereto,  adversely  to  the  i^lain- 
tiff's  title  and  estate,  states  a  cause  of 
action  under  this  section,  and  not  under 
§§  749-751,  post.  Los  Angeles  v.  Los  An- 
geles Farming  etc.  Co.,  150  Cal.  647;  89 
Pac.  615.  In  an  action  under  this  sec- 
tion, it  is  not  essential  that  the  complaint 
shall  aver  the  plaintiff  to  be  the  owner  in 
fee:  it  is  sufficient  if  it  appears  that  the 
plaintiff  claims  an  interest  in  the  land, 
and  that  the  defendant  asserts  a  claim  of 
title  adverse  to  the  plaintiff's  claim.  Stod- 
dart  V.  Burge,  53  Cal.  394.  A  complaint 
alleging  that  the  plaintiff  is  in  possession 
of  and  claims  title  ir  fee  to  the  described 
premises,  and  that  the  defeiulant  claims 
an  estate  or  interest  adverse  to  him,  is 
sufficient.  Butterfield  v.  Graves,  138  Cal. 
155;  71  Pac.  510.  No  allegation  of  pos- 
session is  necessary,  under  this  section: 
the  maintenance  of  an  action  by  any  per- 
son, whether  in  or  out  of  possession,  is 
authorized.  Davis  v.  Crump,  162  Cal.  513; 
123  Pac.  294.  It  is  not  necessary  to  allege 
in  the  complaint  the  nature  of  the  estate 
or  interest  claimed  by  the  defendant. 
People  V.  Center,  66  Cal.  551;  5  Pac.  263; 
6  Pac.  481;  Hyde  v.  Redding,  74  Cal.  493; 
16  Pac.  380;  Stratton  v.  California  Land 
etc.  Co.,  86  Cal.  353;  24  Pac.  1065;  McNeil 
V.  Morgan,  157  Cal.  373;  108  Pac.  69.  An 
action,  not  averring  that  the  defendant 
claims  any  estate  or  interest  in  real  prop- 
erty adverse  to  the  ])laintiff,  is  not  an 
action  under  this  section.  Berry  v.  Ivanice, 
53  Cal.  653.  The  only  purpose  of  averring 
an  adverse  claim  is  to  notify  the  defendant 
of  the  nature  of  the  action,  and  that  he 
is  required  to  set  forth  and  litigate  any 
adverse  title  he  may  have,  or  to  disclaim 
it,  either  expressly  or  by  default.    Bulwer 


Consol.  Mining  Co.  v.  Standard  Consol. 
Mining  Co.,  83  Cal.  589;  23  Pac.  1102.  In 
an  action  to  quiet  title  to  a  mining  claim, 
located  on  public  lands,  a  possessory  title 
is  sufficient  to  maintain  the  action  by  a 
party  in  possession,  as  against  one  out  of 
possession;  and  where  the  plaintiff  alleges 
that  by  reason  of  the  defendant's  adverse 
claim  he  is  greatly  embarrassed  in  the 
use  and  disposition  of  the  claim,  and  that 
thereby  its  value  is  greatly  depreciated, 
there  is  a  sufficient  averment  of  injury  to 
sustain  the  action.  Pralus  v.  Pacific  Gold 
etc.  Mining  Co.,  35  Cal.  30.  A  complaint, 
under  this  section,  having  no  averments 
inconsistent  with  the  scope  thereof,  pre- 
sents, on  its  face,  a  case  for  equitable 
relief:  ft  seeks  to  have  something  done 
which  a  court  of  law  cannot  do;  it  invokes 
a  decree  in  equity,  not  a  mere  judgment 
at  law,  which,  in  its  nature,  is  only  for 
the  recovery  of  the  possession  of  specific 
real  or  personal  property,  or  for  damages. 
Angus  V.  Craven,  132  Cal.  691;  64  Pac. 
1091.  In  an  action  to  quiet  title,  an  aver- 
ment that  the  plaintiff  is  the  owner  of  a 
right  to  purchase  from  the  defendant  cer- 
tain described  real  estate,  is  of  a  conclu- 
sion of  law,  and  is  a  mere  argumentative 
averment,  which  is  not  the  equivalent  of 
an  averment  of  the  ultimate  fact  of  title 
to  the  land,  and  renders  the  complaint  in- 
sufficient. Cooper  v.  Birch,  137  Cal.  472; 
70  Pac.  291.  The  fact  that  a  claim  for 
moneys  is  included  in  the  complaint  to 
quiet  title  cannot  affect  the  result  of  the 
trial  of  the  issue  of  ownership,  especially 
where  such  claim  was  ignored  by  the  jury, 
and  only  nominal  damages  of  one  dollar 
were  awarded.  Reiner  v.  Schroeder,  146 
Cal.  411;  80  Pac.  517.  A  company,  made 
defendant  in  an  action  to  quiet  title,  under 
which  the  plaintiff  derives  no  right,  need 
not  be  alleged  in  the  complaint  to  be  a 
corporation;  and  where  such  company  ap- 
pears and  answers  under  the  name  by 
which  it  is  sued,  it  will  not  be  allowed 
to  say  that  it  w'as  not  properly  named  in 
the  complaint,  or  that  the  complaint  does 
not  show  how  it  came  to  bear  that  name. 
Butterfield  v.  Graves,  138  Cal.  155;  71  Pac. 
510. 

Sufficiency  of  complaint.  See  note  post, 
§749. 

Amendment  of  complaint.  Where  the 
evidence  tends  strongly  to  suggest  that, 
though  the  legal  title  is  in  the  defendant, 
the  plaintiff  is  equitably  entitled  to  a  con- 
veyance from  the  defendant,  as  jnirchaser 
with  notice  of  the  plaintiff's  equity,  the 
ends  of  justice  are  best  subserved  by  per- 
mitting the  plaintiff,  who  has  filed  a  suffi- 
cient complaint,  to  amend,  so  as  to  avail 
himself  of  his  equities.  Pioneer  Land  Co. 
V.  Maddux,  109  Cal.  633;  50  Am.  St.  Rep. 
67;  42  Pac.  295. 

Defenses  and  answers.  The  owner  of  a 
mere  equitable  title  to  land^  if  of  such   a 


901 


DEFENSES  AND  ANSWERS — CROSS-COMPI  AINT. 


§738 


character  as  to  entitle  him  to  possession  in 
equity,  may  set  up  such  title  as  a  suHicient 
defense  to  au  action  for  the  possession, 
brought  even  by  the  holiler  of  the  le^al 
title.  Doherty  v.  Courtney,  150  Cal.  606; 
89  Pac.  4;^i.  The  defendant,  in  an  action 
to  quiet  title,  is  not  called  ujioii  to  do 
more  than  to  nejiative  the  plaintifVs  cause 
of  action,  unless,  by  allc<,nng  title,  he 
wishes  to  avail  himself  of  a  jury  trial, 
or  unless  lie  seeks  to  avail  himself  of  an 
equitable  title  aj^ainst  the  legal  title  of 
the  [ilaintiff,  which  he  must  specifically 
plead.  United  Land  Ass'n  v.  Pacific  Im- 
provement Co.,  139  Cal.  370;  69  Pac.  10(54. 
A  defendant,  in  an  action  to  quiet  title, 
who  does  not,  himself,  claim  some  ri<^ht, 
title,  interest,  or  possession,  has  no  status 
to  question  the  validity  of  a  convey- 
ance of  the  property  by  a  third  person  to 
the  plaintiff.  Williams  v.  San  Pedro,  153 
Cal.  44;  94  Pac.  234.  A  Mexican  grant, 
whether  perfect  or  not,  whicii  was  not 
presented  to  nor  confirmed  by  the  United 
fcitates  board  of  land  commissioners,  is 
forfeited,  and  confers  no  title,  although 
judicial  possession  was  given  thereunder 
to  the  original  grantee,  and  is  no  defense 
in  an  action  to  try  title  and  recover  pos- 
session. Anzar  v.  Miller,  90  Cal.  342;  27 
Pac.  299.  Where  the  defendant's  title  is 
dependent  solely  upon  the  question  of  the 
payment  of  taxes  upon  the  land  in  contro- 
versy, he  having  been  in  the  exclusive 
possession  thereof  under  a  claim  of  right 
for  a  term  longer  than  that  required  by 
statute,  his  claim  cannot  be  defeated  by 
failure  to  pay  taxes,  when  the  assessment 
thereof  was  absolutely  void.  Harvey  v. 
Meyer,  117  Cal.  60;  48  Pac.  1014.  In  an 
action  to  quiet  title,  against  a  city,  a  de- 
fense of  a  lien  for  delinquent  taxes  cannot 
be  sustained,  where  the  right  of  action 
for  the  collection  of  the  taxes  is  lost  under 
the  statute  of  limitations:  in  such  case, 
the  lien  therefor  is  lost,  and  the  plaintiff's 
title  is  quieted  accordingly.  Clark  v.  San 
Diego,  144  Cal.  361;  77  Pac.  973.  A  claim 
to  mining-ground  may  be  determined  by 
showing  that  the  claimant  never  performed 
any  of  the  acts  necessary  to  the  location 
of  the  claim,  or  by  showing,  if  such  acts 
were  performed,  that  a  prior  location 
existed,  which  precluded  the  possibility  of 
a  valid  location  having  been  made  by  the 
plaintiff;  such  proof  can  properly  be  made 
under  a  general  denial  of  the  plaintiff's 
title  and  right  of  possession.  Adams  v. 
Crawford,  116  Cal.  495;  48  Pac.  488.  A 
discovery  of  oil,  subsequently  to  the  loca- 
tion of  the  lands  as  oil-lands,  will  relate 
back  to  and  perfect  the  location,  except 
so  far  as  the  rights  of  others  may  inter- 
vene, and  the  rights  of  the  locators  are 
the  subject  of  sale  and  transfer  as  well 
before  as  after  discovery;  and  a  prior  dis- 
covery,   ui)ou    an    adjoining    claim,    which 


perfects  a  jirior  location  of  eighty  acrea 
of  oil-lands,  cannot  be  used  to  support  a 
consolidated  location  of  the  whole  (|uarter- 
scction  so  as  to  interfere  with  the  first 
locators  of  the  adjoining  eighty  acres,  who 
are  in  jiossession  by  their  lessees,  prepar- 
ing to  drill  a  well,  with  proper  diligence 
and  ill  good  faith,  for  the  purposi-  of  dis- 
covering oil,  where  the  consoridatcil  loca- 
tion is  made;  and  in  an  action  by  the 
consolidated  claimants  to  (piiet  title  to  the 
lands  in  controversy,  against  the  i)rior 
locators  in  possession,  judgment  is  prop- 
erly rendered  for  the  defendants,  ujjon  the 
facts.  Weed  v.  Snook,  144  Cal.  439;  77 
Pac.  1023.  If  the  answer  in  an  action 
to  quiet  title  a<lmits  j)laintiff's  ownership 
in  fee-simple  and  j)ossession,  the  rightful- 
ness of  the  possession  follows  the  admis- 
sion; and  even  if  the  plaintiff  went  into 
possession  by  leave  of  the  defendant's 
tenant,  he  is  not  estopped  from  denying 
the  defendant's  title.  Keed  v.  Calderwood, 
32  Cal.  109.  In  an  action  to  quiet  title, 
where  the  answer  sets  up  a  deed  from  the 
plaintiff  to  the  defendant,  and  alleges  the 
delivery  of  the  deed  by  the  plaintiff, 
the  allegation  is  deeme<l  to  be  controverteil 
by  the  plaintiff,  and  he  may  disprove  such 
delivery.  Drinkwater  v.  Hollar,  6  Cal. 
App.  117;  91  Pac.  664.  Answers,  though 
not  denying  the  possession  of  the  i)laintiff, 
which  denied  that  the  plaintiff  was  at  any 
time  the  owner  of  any  right,  title,  or  in- 
terest in  or  to  the  premises,  or  any  part 
or  ])arts  thereof,  and  denied  that  the  de- 
fendants had  no  estate,  right,  title,  or 
interest  in  the  lands,  and  aflirniatively 
alleged  that  at  the  commencement  of  the 
action  two  of  the  defendants  named  own, 
and  still  own,  the  title  in  fee  to  the 
premises,  raise  issues  upon  which  the  de- 
fendants are  entitled  to  be  heard.  Butter- 
field  V.  Graves,  138  Cal.  155;  71  Pac.  510. 
In  an  action  to  quiet  title  to  land,  the 
answer  of  the  defendant,  denying  the 
plaintiff's  ownership,  and  denying  that  he 
himself  claims  any  interest  in  the  land, 
except  the  right  to  maintain  a  dam  in  a 
creek  which  flows  over  the  land,  and  to 
maintain  pipes  connecting  with  said  creek 
at  the  said  dam  for  the  j)urpose  of  con- 
ducting the  waters  thereof  to  lands  below 
for  the  purposes  of  irrigation  and  for 
domestic  use,  sets  up  a  valid  defense.  San 
Jose  Land  etc.  Co.  v.  San  Jose  Ranch  Co., 
129  Cal.  673;  62  Pac.  269. 

Cross-complaint.  In  a  suit  to  quiet 
title  to  a  tract  of  land,  the  defendant  may, 
by  cross-complaint,  enforce  the  specific  per- 
formance of  a  contract  lietween  the  i)lain- 
tiff  and  the  defendant's  assignor,  which 
l)rovided  that,  upon  the  performance  of 
conditions  specified  in  the  contract,  such 
assignor  should  be  entitled  to  a  convey- 
ance of  a  certain  number  of  acres,  where 
the   cross-complaint  shows  that  the   condi- 


§738 


ACTIONS   TO  DETERMINE   CONFLICTING  CLAIMS. 


902 


tions  were  fully  performed  by  the  defend- 
ant and  his  assignor.  Fleishman  v.  Woods, 
ISoCal.  256;  67Pac.  276. 

Consolidation  of  actions.  Consolidation 
of  actions  may  be  ordered,  where,  pending 
an  action  for  partition,  one  of  the  parties 
commences  an  action  against  other  par- 
ties to  the  action  to  enforce  a  trust  rela- 
tive to  the  property  involved.  Bixby  v. 
Bent.  59  Cal.  522. 

Issues.     Whether     an     action     involves 
legal    issues,    or    issues    of    equitable    cog- 
nizance,  must   depend   upon   the   facts   al- 
leged   in    the    particular    case.      Davis    v. 
Judson,  159  Cal.  121;  113  Pac.  147.     Until 
the  answer  comes  in,  in   an   action  under 
this  section,  setting  forth  the  defendant's 
claim,  it  need  not  appear  that  the   issues 
to  be  tried  are  legal,  as  distinguished  from 
equitable,   issues;    a   proceeding   by   which 
one    may    compel    another    to    expose    and 
have  adjudicated  the  nature  of  the   inter- 
est  on   which   he   is   asserting   an   adverse 
claim  against  the  estate  of  the  former,  is 
one  to  be  conducted  in  a  court  of  equity, 
and   the    discovery    of   the   nature    of   the 
adverse     claim   precedes    its    adjudication. 
People  v.  Center,  66  Cal.  551;  5  Pac.  263; 
6  Pac.  481;  Hyde  v.  Redding,  74  Cal.  493; 
16  Pac.  380.     The  main  effect  of  this  chap- 
ter   is    to    give    the    parties    the    rij^ht    to 
compel  others,  by  suit,  to  litigate  and  de- 
termine controversies  in  cases  where  such 
right  did  not  before  exist;  but  if,  in  such 
a  suit,  legal  issues  arise,  the  right  to  have 
such  issues  tried  by  a  jury   is  not   taken 
away.    Donahue   v.   Meister,   88    Cal.    121; 
22   Am.   St.   Rep.   283;    25   Pac.   1096.     Be- 
cause a  suit  is  brought  in  equity,  it  does 
not  follow  that  the  determination  of  ques- 
tions,   purely    of     a    legal    character,    in 
relation    to    the   title,   will   necessarily   be 
withdrawn    from   the    ordinary   cognizance 
of   a    court    of   law:    the    court, _  sitting   in 
equity,   may   direct,   whenever   it  may  be- 
come proper,  an  issue  to  be  framed  upon 
the  pleadings   and  submitted  to  the   jury. 
Curtis  V.  Sutter,  15  Cal.  259;   Donahue  v. 
Meister,  88  Cal.  121;  22  Am.  St.  Rep.  283; 
25    Pac.    1096.     An    action,   brought   by    a 
claimant    to    real    estate,    to    remove    the 
claim  of  the  defendant,  who  also  claimed 
that  the  plaintiff  had  wrongfully  and  un- 
lawfully  entered     on     such     premises    and 
ousted  the  defendant  therefrom,  formerly 
could  not  be  maintained  at  all;  the  plain- 
tiff  was   compelled   to   wait   until   the    de- 
fendant chose  to  disturb  his  possession  by 
an   action;   now   the   code   enables   him   to 
commence  the  legal  contest;  but  when  he 
thus   brings   the   defendant   into   court,   he 
must   be   prepared   to   meet   any   pertinent 
issues   which    the    latter    may    tender,    and 
to  try  them   in   the  way   in   which  the  de- 
fendant has  the  right  to  have  them  tried. 
Donahue   v.   Meister,  88   Cal.   121;   22   Am. 
St.  Rep.  2S3;   25  Pac.   1096.     In   an   action 
to   quiet   the   title   of   the    plaintiff   to   all 


the  waters  of  a  creek,  where  the  complaint 
does  not  allege  the  nature  of  the  plaintiff's 
right  to  the  water,  whether  riparian  or 
l)rescriptive,  and  the  answer  sets  up  ripa- 
rian rights  of  the  defendants  in  the  creek, 
on  land  several  miles  above  the  lands  of 
the  plaintiff,  and  also  a  prescriptive  right 
to  use  all  of  the  waters  flowing  through 
their  lands  for  irrigation,  domestic  use, 
and  the  watering  of  stock,  upon  the  issues 
thus  joined  it  is  the  duty  of  the  court 
to  determine  and  declare  the  extent  of  the 
right  of  the  defendants,  as  well  as  that  of 
the  plaintiff.  Southern  California  Invest- 
ment Co.  V.  Wilshire,  144  Cal.  68;  66  Pac. 
767. 

Jury    trial,    right     to.     Whether,    when 
brought  under  the  code,  an  action  be  called 
an    action    at    law,    in    which    the    statute 
authorizes    a    judgment     determining     the 
estate  or  interest  claimed  by  the  plaintiff, 
or  be  called  a  suit  in  equity  to  quiet  the 
plaintiff's  title  against  the  adverse  claim, 
the    superior    court    has    jurisdiction;    and 
if  it  be  considered  an  action   at  law,  the 
defendant  m.ay  demand  a  jurv.    People  v. 
Center,  66  Cal.  551;  5  Pac.  2G3.     The  right 
to  a  jury   trial   of  legal   issues   cannot  be 
avoided    by    calling    an    action    equitable; 
nor  can  the  plaintiff,  by  bringing  an  equi- 
table  action,   deprive   the   defendant  of   a 
jury   trial,   to   which   he  would  have  been 
entitled  if  the  parties  had  been  inverted, 
and  the  defendant  had  sued  the  plaintiff. 
Donahue  v.  Meister,  88   Cal.   121;   22   Am. 
St.  Rep.  283;  25  Pac.  1096;  McNeil  v.  Mor- 
gan, 157  Cal.  373;   108  Pac.  69.     Whether 
either   party    is    entitled    to    a   jury    must 
depend  greatly  upon  the  facts  of  the  par- 
ticular case.    McNeil  v.  Morgan,   157   Cal. 
373;   108  Pac.  69.     Although  an  equitable 
action   to   quiet   title   to  land  is,  in   form, 
brought   under    this   section,   yet   if   it   is, 
in  reality,  an  action  to  recover  specific  real 
property,   the   substance   must   control   the 
form,  and  a  party  has  the  right  to  a  jury 
trial,  under  §  592,  ante.    Davis  v.  .Tudson, 
159    Cal.    121;    113    Pac.    147.     Where    an 
action   is   brought,  under  this   section,   by 
the  heirs  of  a  deceased  womnn,  who  sought 
to  avoid  a  title  claimed  by  the  defendants 
under  an  execution  sale  had  as  the  result 
of  a  litigation  begun  while  she  was  men- 
tally   unsound,    and    was    not    represented 
by  guardian,  such  sale  passing  no  title  to 
purchasers  with  knowledge,  in  view  of  the 
fact  that  the  cause  possesses  elements  of 
an  action   at  law,  it  should  be   submitted 
to    the    jury    upon    the    evidence    offered. 
Gillespie   V.   Gouly,   120   Cal.   515;    52   Pac. 
816.     Where    the    defendant    is    in    posses- 
sion,   claiming    adversely    to    the    plaintiff, 
the    obviously    proper    action    to    bring    is 
an  action  of  ejectment,  that  is,  an  action 
for  the  recovery  of  specific  real  property, 
in    which    case    the    defendant    is    clearly 
entitled  to  a  jury;  and  where  the  plaintiff 
endeavors   to  accomplish   the   same   result. 


903 


RIGHT    TO    JURY    TRIAL. 


§738 


that  is,  the  restitution  of  possession,  in 
the  form  of  a  statutory  action  under  this 
section,  it  is  ovi.leut  that  by  simply  fram- 
ing his  complaint  in  a  i)articular  way  he 
cannot  deprive  the  defendant  of  a  jury 
trial  of  the  issues  raised  by  his  answer. 
Newman  v.  Duane,  89  Cal.  597;  27  Pac.  (j(i. 
The  essential  allegations  necessary  to  an 
action  in  ejectment  are,  the  estate  of  the 
plaintiff,  possession  by  the  defendant  at 
the  commencement  of  the  action,  and  his 
wrongful  withholding  of  the  same;  and 
oven  if  the  action  is  regarded  as  an  action 
under  this  section,  still  the  plaintiff  is 
entitled  to  a  jury;  the  equitable  relief  of 
a  restraining  order  against  waste,  during 
the  pendency  of  the  action,  does  not 
change  the  nature  of  the  action,  but  is 
ancillary  merely,  and  permissible  under 
the  pleading.  Haggin  v.  Kelly,  136  Cal. 
481;  G9  Pac.  140.  Courts,  in  guarding  the 
constitutional  rights  to  a  jury  trial,  have 
repeatedly  held,  that,  where  the  suit  should 
have  been,  and  in  substance  is,  an  action 
for  the  recovery  of  the  possession  of  land, 
the  right  of  a  defendant  to  a  jury  cannot 
be  defeated  by  the  mere  device  of  bringing 
the  action  in  an  equitable  form.  Angus  v. 
Craven,  132  Cal.  691;  64  Pac.  1091.  This 
section  must  not  be  construed  as  intend- 
ing to  violate  that  provision  of  the  con- 
stitution which  says  that  the  right  to  trial 
by  jury  shall  be  secured  to  all,  and  remain 
inviolate,  unless  such  construction  is  un- 
avoidable: issues  about  titles  to  land  were 
triable  at  law  at  the  time  the  constitution 
was  adopted,  and  therefore  either  party 
has  the  right  to  have  such  issues  tried  by 
a  jury.  Donahue  v.  Meister,  88  Cal.  121; 
22  Am.  St.  Rep.  2S3;  2.5  Pac.  1096.  If,  in 
an  action  umler  this  section,  the  plaintiff 
avers  a  legal  title  against  a  defendant 
in  possession,  the  latter  is  perhaps  en- 
titled, under  the  constitution,  to  a  trial 
by  jury  of  the  issue  at  law  thus  pre- 
sented.' Hyde  V.  Redding,  74  Cal.  493;  IG 
Pac.  380.  Where  the  })leadings  show  that 
the  plaintiff  is  in  possession,  and  the  an- 
swer sets  up  as  a  defense  a  cause  of  action 
in  ejectment,  averring  that  the  defend- 
ant was  rightfully  in  jjossession  and  was 
ousted  by  the  plaintiff  before  the  com- 
mencement of  the  action,  and  that  the 
plaintiff  wrongfully  withholds  the  posses- 
sion, the  defendant  is  entitled  to  a  jury 
trial  upon  those  issues.  Donahue  v.  Meis- 
ter, 88  Cal.  121;  22  Am.  St.  Rep.  283;  25 
Pac.  1096.  In  an  action  under  this  sec- 
tion, brought  by  a  j)arty  out  of  possession, 
against  one  claiming  title  and  in  posses- 
sion, and  asking  for  a  restitution  of  the 
premises,  either  party  is  entitled  to  a  jury 
trial,  as  a  matter  of  right.  Gillespie  v. 
Gouly,  120  Cal.  515;  52  Pac.  116.  In  a 
suit  to'  quiet  title,  as  in  other  suits,  a 
denial  of  the  allegations  of  the  complaint 
is  a  sufficient  answer,  and  a  finding  upon 
the  issues  thus  raised,  if  adverse  to  the 


plaintiff,  is  a  sufficient  finding;  this  im- 
jdit'H,  that,  if  [lossession  be  alleged,  the 
fact  of  possession,  as  w(dl  as  that  of  title, 
must  be  negatived;  and  it  may  be,  also, 
that  a  defendant,  in  order  to  avail  him- 
self of  his  right  to  a  jury  trial,  if  he  have 
such  right,  should  allege"^  his  title.  United 
Land  Ass'n  v.  Pacific  Improvement  Co., 
l.!9.  Cal.  370;  69  Pac.  1064;  72  Pac.  988. 
Where  the  plaintiff  is  in  possession,  an 
action  to  quiet  title,  under  this  section, 
against  a  defendant  who  is  alleged  to 
claim  under  a  forged  deed  from  the  plain- 
tiff's testator,  is  of  an  equitable  nature; 
and  where  the  defen<lant  has  never  been 
in  possession,  nor  ousted  therefrom,  the 
equitable  character  of  the  action  cannot 
be  overthrown  by  the  defendant's  claim 
of  title  and  prayer  to  be  let  into  posses- 
eion,  either  by  answer  or  by  cross-com- 
plaint; and  the  defendant  is  not  entitled 
to  a  jury  trial  of  the  action  by  reason  of 
such  claim  of  title  and  possession.  Angus 
V.  Craven,  132  Cal.  691;  64  Pac.  1091. 
Where  the  defendant  admits  the  legal  title 
to  the  land  to  be  in  the  plaintiff,  an<l 
claims  a  right  to  the  possession  thereof 
under  an  alleged  agreement  for  the  sale  of 
the  land,  made  by  the  predecessor  of  the 
plaintiff,  to  which  he  claims  to  have  suc- 
ceeded by  assignment,  and  which  he,  in 
effect,  asks  to  have  specifically  performed, 
he  is  not  entitled  to  a  jury  for  the  trial 
of  the  equitable  issues  thus  presented. 
Crocker  v.  Carpenter,  98  Cal.  418;  33  Pac. 
271.  Where  an  action  to  quiet  title  was 
set  for  trial,  and  no  jury  had  been  de- 
manded or  ordered,  and  a  jury  was  first 
demanded  by  the  plaintiff  after  the  cause 
was  called  for  trial  and  the  parties  had 
announced  themselves  ready,  and  no  de- 
posit of  jury  fees  was  made  or  offered  by 
the  plaintiff,  it  is  not  error  to  refuse  a  jury 
trial  on  account  of  the  failure  of  the  jjlain- 
tiff  to  comply  with  the  reasonable  rule  of 
the  court  requiring  the  party  demanding  a 
jury  trial  to  deposit  such  fees  with  the 
clerk.  Adams  v.  Crawford,  116  Cal.  495; 
48  Pac.  488.  In  an  action  under  this  sec- 
tion, it  is  not  necessary  to  determine 
whether  or  not  the  pleadings  are  suffi- 
cient to  entitle  either  party  to  a  jury  as 
to  any  of  the  issues  created;  if  not  suffi- 
cient, the  defendant  should  make  them 
so,  if  his  adverse  claim  of  interest  justi- 
fies such  a  course,  and  where  he  docs  not 
do  so,  he  cannot  afterwards  be  heard  to 
complain  that  he  was  deprived  of  hia 
right  to  a  jury  trial.  Landregan  v.  Pep- 
pin,  94  Cal.  4*65;  29  Pac.  771.  The  fact 
that  the  record  is  erroneous  in  stating  that 
the  parties  waived  a  jury,  cannot  be  shown 
by  an  affidavit  of  the  judge  who  tried  the 
cause;  a  party  cannot  try  his  cause  before 
a  judge  without  objection,  and  after  losing 
it,  complain  that  the  case  was  not  tried 
by  a  jury.   Smith  v.  Brannan,  13  Cal.  107. 


§738 


ACTIONS   TO  DETERMINE   CONFLICTING  CLAIMS. 


904 


Admissibility  of  evidence.  One  claim- 
ing title  to  property  under  a  sheriff's  deed, 
executed  on  the  foreclosure  of  a  mortgage, 
may,  in  an  action  brought  by  him  to  quiet 
his  title  against  one  who  claims  under  a 
sheriff's  deed  executed  on  the  foreclosure 
of  a  mechanic's  lien,  in  which  foreclosure 
he  was  not  a  party,  show  that  no  such  lien 
existed.  Horn  v.  Jones,  28  Cal.  194..  A 
prior  lien-holder,  who  was  not  made  a 
party  to  an  action  of  foreclosure  by  sub- 
sequent lien-holders,  is  not  in  privity  with 
the  defendant  in  such  action,  within  the 
meaning  of  the  rule  making  those  in 
privity  with  parties  to  an  action  bound 
by  the  judgment  therein;  and,  after  ac- 
quiring title  of  such  defendant  under 
his  lien,  he  may  show,  in  an  action  to 
quiet  title  as  against  such  subsequent  lien- 
holders,  that  the  liens  which  were  fore- 
closed by  them,  and  which  resulted  in  the 
sheriff's  deed  under  which  they  claim  title, 
were  invalid,  although  his  foreclosure  and 
sale  were  subsequent  in  time  to  theirs. 
Brady  v.  Burke,  90  Cal.  1;  27  Pac.  52. 
Where  the  plaintiff  obtained  his  title  from 
the  succ-essor  of  the  stipulated  owner  by 
commissioner's  deed  on  foreclosure  sale, 
evidence  of  the  record  in  the  foreclosure 
action,  and  the  commissioner's  deed,  and 
a  writ  of  assistance  issued  by  the  court, 
with  the  return  of  the  sheriff  thereon, 
showing  the  delivery  of  the  property,  is 
admissible  to  show  the  title  and  posses- 
sion, so  far  as  it  can  be  obtained  as 
against  the  judgment  debtor,  but  not  to 
show  an  ouster  of  the  defendants  as  third 
parties.  Nathan  v.  Dierssen,  146  Cal.  63; 
79  Pac.  739.  Where  the  defendant,  in  an 
action  to  quiet  title,  sets  up  title  through 
a  sale  by  a  trustee  under  a  deed  of  trust, 
executed  by  the  plaintiff's  predecessor  in 
interest,  the  plaintiff,  in  avoidance  of  such 
defense,  may  offer  evidence  to  show  that 
the  trustee's  sale  and  deed  were  fraudu- 
lent, without  pleading  the  fraud  in  his 
complaint.  Jose  Eealty  Co.  v.  Pavlicevich, 
164  Cal.  613;  130  Pac.  "l5.  Where  the  par- 
ties stipulated,  prior  to  the  first  trial  of 
an  action  to  quiet  title,  that  a  person 
named  had  died  seised  and  possessed  of 
the  land  in  controversy,  the  stipulation 
was  available  to  both  parties;  and  where 
the  court,  on  the  second  trial,  ruled  out 
the  stipulation  as  not  binding  at  such 
second  trial,  it  had  discretion  to  change 
its  ruling,  and  admit  the  stipulation  in 
evidence  in  favor  of  the  plaintiff  and 
against  the  defendant,  in  the  absence  of 
anything  limiting  its  effect  or  any  change 
of  the  issues.  Nathan  v.  Dierssen,  146  Cal. 
63;  79  Pac.  739.  Since  the  passage  of 
§  2324,  U.  S.  Rev.  Stats.,  providing  that 
the  location  of  a  mining  claim  must  be 
distinctly  marked  on  the  ground,  so  that 
its  boundaries  can  be  readily  traced,  a 
party  can  show  a  right  to  the  possession 
of  a  mining  claim,  where  no  patent  has 


been  issued,  onlj'  by  showing  an  actual 
pedis  possessio  as  against  a  wrong-doer,  or 
by  showing  a  compliance  with  the  requi- 
sites of  the  act.  Funk  v.  Sterrett,  59  Cal. 
613.  In  an  action  to  quiet  title  to  a  min- 
ing claim,  evidence  of  abandonment  is  ad- 
missible, under  a  denial  of  title.  Trevaskis 
V.  Peard,  111  Cal.  599;  44  Pac.  246.  In 
an  action  to  quiet  title  to  a  specified  lot 
and  block  in  a  certain  rancho,  "according 
to  the  official  map  thereof  on  file  in  the 
office  of  the  county  recorder,"  which  map 
was  proved  by  plaintiff  in  deraigning  his 
title,  where  the  defendant  claimed  under 
a  deed  from  the  collector  of  an  irrigation 
district  comprising  the  same  rancho,  exe- 
cuted for  non-payment  of  an  assessment 
by  the  jjlaintiff,  and  giving  the  same  de- 
scription of  lot  and  block  as  in  the  com- 
plaint, without  referring  to  the  map,  and 
the  admission  of  which  was  objected  to 
for  that  omission,  parol  evidence  was  ad- 
missible for  the  defendant  to  show  that 
at  the  time  of  the  assessment  there  was 
but  one  such  lot  and  block  in  that  rancho, 
and  that  that  fact  was  then  well  known, 
as  tending  to  identify  the  lot  and  block 
deeded  with  that  described  in  the  com- 
plaint, and  that  plaintiff  was  not  misled 
by  the  assessment,  but  was  fully  informed 
that  his  lot  was  chargeable  therewith. 
Best  V.  Wohlford,  144  Cal.  733;  78  Pac.  293. 

Sufficiency  of  evidence.  In  an  action  to 
quiet  title  to  real  jjroperty,  the  plaintiff 
must  establish  a  legal,  as  distinguished 
from  a  merely  equitable,  title  (Fudickar 
V.  East  Riverside  Irrigation  Dist.,  109  Cal. 
29;  41  Pac.  1024);  and  where  the  plain- 
tiff claims  under  an  execution  sale  based 
upon  a  judgment  against  the  judgment 
debtor,  it  is  only  necessary  for  him,  in 
making  out  a  prima  facie  right  to  recover 
as  against  the  defendant,  to  show  the 
judgment  of  a  court  of  competent  juris- 
diction, the  execution  thereon  and  the  sale 
thereunder,  and  transmission  of  the  title 
to  the  plaintiff.  Reilly  v.  Wright,  117  Cal. 
77;  48  Pac.  970.  As  against  the  judgment 
debtor,  the  production  of  the  judgment, 
execution,  and  sheriff's  deed  is  prima  facie 
evidence  of  the  plaintiff's  right  to  recover; 
but  if  the  action  is  against  a  stranger  to 
the  judgment,  the  plaintiff  must  also  show 
that  the  judgment  debtor  had  the  title  or 
possession  of  the  land  at  the  date  of  the 
lien  or  of  the  sale.  Robinson  v.  Thornton, 
102  Cal.  675;  34  Pac.  120. 

Burden  of  proof.  In  an  action  to  quiet 
title,  the  burden  rests  upon  the  plaintiff 
to  show  title  in  himself,  and  if  he  fails 
to  make  out  a  case,  he  cannot  recover; 
possession  was  also  formerly  necessary,  in 
such  case,  but  is  not  now  required.  Heney 
V.  Pesoli,  109  Cal.  53;  41  Pac.  819.  The 
rule  that  a  plaintiff  is  not  entitled  to  re- 
cover, where  he  fails  to  show  title  in 
himself,  does  not  require  that  he  shall,  in, 
opening  his  case,  show  that  the  title  which 


905 


EVIDENCE — FINDINGS — COSTS — JUDGMENT. 


§738 


the  defendant  may  plead  in  his  answer 
has  been  forfeited:  he  may  not,  and  often 
does  not,  know  what  the  adverse  interest 
is,  against  which  lie  seelvs  to  quiet  his 
title.  Goldberg  v.  Bnischi,  14G  Cal.  708; 
81  Pac.  2.'5.  Where  the  plaintiff  acquired 
title  under  the  stipulated  owner,  the  bur- 
den of  proof  is  upon  the  defendant  to  show 
title  by  adverse  jiossession,  and  the  burden 
is  not  sustained  where  the  defenilant  does 
not  show  payment  of  all  taxes  assessed  on 
the  land  in  controversy,  and  did  not  pro- 
tect it  by  an  inclosure  within  five  years, 
nor  show  any  continuous  or  uninterruj)ted 
possession  thereof.  Nathan  v.  Dierssen, 
146  Cal.  G;?;  79  Pac.  739. 

Presumptions.  Fn  an  action  to  quiet 
title,  jiroof  of  the  legal  title  in  a  party 
raises  a  {>resumi)tion  of  the  right  of  jios- 
session  in  him,  and  esta])lishes  a  prima 
facie  case  in  his  favor.  Flood  v.  Temjde- 
ton,  152  Cal.  148;  13  L.  R.  A.  (N.  S.)  579; 
92  Pac.  78. 

Extrinsic  evidence  affecting  writings. 
Where  the  statu!;'  makes  an  assessment  a 
lien  upon  the  property  of  the  plaintiff,  and 
so,  also,  a  bond  issued  upon  non-payment, 
and  there  is  nothing  upon  the  face  of 
either  the  assessment  or  the  bond  to  show 
that  the  lien  is  not  in  all  respects  valid, 
it  is  obvious  that,  to  defeat  such  assess- 
ment and  bond,  or  a  deed  thereunder,  the 
plaintiff  must  resort  to  evidence  extrane- 
ous of  any  recitals  to  be  found  in  it,  which 
is  the  test  of  his  right  to  invoke  the  aid 
of  equity  to  restrain  the  sale.  Chase  v. 
City  Treasurer,  122  Cal.  540;  55  Pac.  414. 

Competency  of  witnesses.  In  an  action 
by  a  husband  to  quiet  title  to  land  jointly 
conveyed  to  him  and  his  deceased  wife, 
against  the  administrator  of  her  estate,  as 
being  community  property  belonging  to 
the  husband  and  not  to  the  estate,  the 
husband  is  a  competent  witness:  the  con- 
troversy is  concerning  the  property  of  the 
plaintiff,  and  to  quiet  a  claim  or  demand 
or  title  asserted  by  the  estate  to  such 
property.  Bollinger  v.  Wright,  14.']  Cal. 
292;  76  Pac.  1108. 

Findings.  In  an  action  to  quiet  title, 
the  absence  of  a  finding  that  the  defend- 
ants asserted  a  claim  adverse  to  the  plain- 
tiff is  immaterial.  Title  etc.  Restoration 
Co.  V.  Kerrigan,  150  Cal.  289;  119  Am.  St. 
Rep.  199;  8  L.  R.  A.  (N.  S.)  682;  88  Pac. 
356.  Where  the  plaintiff's  ownership  of 
the  land  in  controversy  is  establisheii,  an 
averment  in  the  answer,  that  the  defend- 
ant made  valuable  improvements  upon  the 
land  while  in  possession  thereof,  is  imma- 
terial, and  a  finding  thereupon  is  not  re- 
quired. Eshleman  v.  Malter,  lol  Cal.  233; 
35  Pac.  S60.  An  action  to  determine  ad- 
verse claims  to  mining-ground  is  equitable 
in  its  nature,  whether  considered  as  an 
action  for  trespass  coupled  with  an  injunc- 
tion, or  an  action  to  quiet  title  coupled 
with     an     injunction     to     prevent     further 


claims,  and  where  the  plaintiff  has  been 
ouste<l  from  |)ossession,  and  the  question 
of  ownership  is  in  issue,  the  parties  are 
entitled  to  a  jury  trial  upon  tiiat  issue, 
and  their  general  verdict  thereui)OH  is  coa- 
(dusi\e  upon  the  court,  and  no  findings  are 
required  tliercupon.  lieiner  v.  ."^idirociler, 
146  Cal.  411;  Si)  I'ac.  517.  Possession  is 
not  essential  to  the  maintenance  of  an 
action  by  the  owner  of  land  to  quiet  his 
title  thereto;  and  a  finding  upon  that  ques- 
tion is  immaterial,  and  it  is  immaterial 
whether  it  is  supported  by  the  evidence. 
Casey  v.  Leggett,  125  Cal.  664;  54  Pac. 
264.  Where  the  defendant  was  the  only 
witness  as  to  possession  j)rior  to  a  i-ertain 
date,  and  his  testimony  shows  that  he  was 
not  possessed  of  sufficient  knowledge  to 
state  whether  or  not  the  possession  of  one 
of  the  claimants  of  any  part  of  the  land 
was  continuous  or  uninterrupted  between 
certain  dates,  the  burden  being  upon  the 
defendant  to  show  such  adverse  posses- 
sion, upon  this  condition  of  the  evidence 
the  court  was  not  bound  to  find  that  the 
action  was  barred,  and  its  finding  that  it 
was  not  barred  is  therefore  sustained  by 
the  evidence.  Nathan  v.  Dierssen,  146  Cal. 
63;  79  Pac.  739.  Where  the  owner  of  the 
legal  title  brings  an  action  to  quiet  title, 
proof  of  a  mere  equity  in  the  <lefendant 
will  not  sustain  a  fimling  that  such  defend- 
ant is  the  owner  of  the  property.  Robin- 
son V.  Muir,  151  Cal.  118;  90  'Pac.  521. 
Where  the  defendant,  in  an  action  to  quiet 
title,  is  not  equitably  entitled  to  any  in- 
terest, it  is  not  error  for  the  court  to  re- 
fuse to  make  a  finding  fixing  the  cash 
value  of  the  property.  Estate  of  Munroe, 
161  Cal.  10;  Ann.  Cas.  1913B,  1161;  118 
Pac.  242. 

Costs.  In  an  action  to  quiet  title,  the 
appellate  court  has  jurisdiction  of  an  ap- 
peal from  an  order  striking  out  a  cost-bill 
in  a  sum  less  than  three  hundreil  dollars, 
the  appealability  of  an  order  made  before 
or  after  final  judgment  not  being  con- 
trolled or  affected  by  the  amount  involved 
in  such  order;  and  where  the  plaintiff  has 
any  judgment  in  his  favor  in  such  an  ac- 
tion, though  it  is  only  for  a  part  of  the 
projierty,  and  though  the  defendant  has 
judgment  in  his  favor  for  the  residue,  the 
plaintiff  is  entitled,  under  the  terms  of 
the  statute,  to  recover  his  costs,  as  of 
course.  Sierra  Union  etc.  Mining  Co.  v. 
Wolff.  144  (a).  430;  77  Pac.  1038. 

Judgment  may  provide  for  what.  Where 
the  plaintiff  was  in  i)ossession  of  the  prem- 
ises at  the  time  the  action  was  commenced, 
but,  during  its  pendency,  was  turned  out 
of  possession,  the  judgment  in  his  favor 
may  provide  for  a  restitution  of  the  jirem- 
ises;  and  such  action  is  not  thereby 
changed  into  one  for  the  recovery  of  the 
possession  of  the  land,  but  remains  an 
equitable  one.  Polack  v.  Gurnee.  66  Cal. 
•2(j(i;     5     Pac.     229.     Where     the     plaintiff 


§738 


ACTIONS  TO  DETERMINE   CONFLICTING  CLAIMS. 


906 


brought  an  action  to  quiet  title  to  land 
which  had  been  conveyed  to  the  defend- 
ant as  a  mortgage  security  to  pay  a  note 
barred  by  the  statute  of  limitations,  the 
court  may  decree  that,  upon  the  failure 
of  the  plaintiff  to  pay  the  amount  remain- 
ing unpaid  upon  the  mortgage  debt,  within 
a  time  specified  by  the  court,  the  action 
shall  be  dismissed;  and  it  is  erroneous  to 
adjudge  that,  upon  the  failure  of  the  plain- 
tiff to  pay  that  amount,  all  his  title  to  the 
property  shall  cease,  and  the  defendant's 
title  shall  be  good  and  valid,  since  the 
defendant  can  have  no  affirmative  remedy 
for  the  debt  barred  bv  the  statute.  Boyce 
v.  Fisk,  110  Cal.  107;  42  Pae.  473.  If  the 
rights  of  parties  depend  upon  the  terms 
of  a  written  contract,  and  modifications 
thereof,  and  the  vendor  seeks  to  claim  a 
forfeiture  of  the  contract  by  an  action 
to  quiet  title  against  the  purchaser,  the 
defendant  may  be  relieved  from  the  for- 
feiture upon  the  payment  of  full  compen- 
sation into  court;  the  plaintiff  then  holds 
the  legal  title  subject  to  the  contract  and 
agreement  of  purchase,  and  it  may  be  so 
decreed.  McDonald  v.  Kingsbury,  16  Cal. 
App.  244;  116  Pac.  380.  It  is  not  essen- 
tial that  the  judgment  itself,  in  an  action 
to  quiet  title,  shall  direct  the  issuance  of 
the  writ  of  possession:  the  law  is  fully 
satisfied  by  a  supplemental  order  to  that 
effect.  Landregau  v.  Peppin,  94  Cal.  465; 
29  Pac.  771. 

"Who  entitled  to  judgment.  In  an  action 
under  this  section,  the  plaintiff  cannot 
have  a  judgment  in  direct  contradiction 
of  the  material  allegations  of  his  com- 
plaint; if  any  cause  of  action  can  be 
brought  to  determine  an  adverse  claim 
upon  an  equitable  interest,  which  is 
doubted,  it  cannot  be  brought  against  the 
holder  of  the  legal  title.  Von  Drachenfels 
V.  Doolittle,  77  Cal.  295;  19  Pac.  518; 
Chase  v.  Cameron,  133  Cal.  231;  65  Pac. 
460:  Leonis  v.  Hammel,  1  Cal.  App.  390; 
82  Pac.  349.  Where,  in  his  complaint,  the 
plaintiff  distinctly  claimed  ownership  and 
right  of  possession  to  mining  lands,  but 
did  not  allege  that  the  defendant  claimed 
some  interest  therein,  nor  call  upon  the 
defendant  to  set  forth  his  title,  but  the 
defendant  met  the  complaint  by  a  denial 
of  the  plaintiff's  ownership  and  an  asser- 
tion of  title  in  himself,  and  where  the 
issues  thus  formeci  were  tried  by  jury 
and  decided  in  the  plaintiff's  favor,  the 
court  properly  gave  judgment  accordingly. 
Keiner  v.  Schroeder,  146  Cal.  411;  80  Pac. 
517.  Occupancy  sufficient  to  bar  an  action 
to  recover  property  confers  a  title  thereto, 
denominated  a  title  by  prescription,  suffi- 
cient against  all,  and  no  title  can  be  better 
or  more  absolute;  and  the  plaintiff  is  not 
entitled  to  a  decree  quieting  the  title  to 
his  estate  in  the  land  in  controversy. 
Woodward  v.  Faris,  109  Cal.  12;  41  Pac. 
781.     In     an     action    to     quiet    title,    the 


plaintiff  must  obtain  judgment  upon  the 
strength  of  his  own  title;  and  if  it  is 
shown  that  he  has  no  title,  it  becomes  im- 
material to  inquire  into  the  defendant's 
rights.  Schroder  v.  Aden  Gold  Mining 
Co.,  144  Cal.  628;  78  Pac.  20.  Stand- 
ing timber  is  part  of  the  realty,  and  it 
may  be  transferred  to  a  third  party,  who 
is  not  the  owner  of  the  land;  and  the 
grantee  is  entitled,  in  an  action  by  the 
owner  to  quiet  his  title  to  the  land,  to 
have  the  timber  granted  reserved  from 
the  operation  of  any  decree  that  may  be 
made  therein.  Peterson  v.  Gibbs,  147  Cal. 
1;  109  Am.  St.  Eep.  107;  81  Pac.  121.  If 
the  plaintiff  claims  under  a  deed,  for  which 
there  was  no  consideration,  the  defendant 
is  not  required  to  demand,  by  cross-com- 
plaint, that  the  deed  be  canceled  and  de- 
livered up;  in  such  a  case,  judgment  should 
be  for  the  defendant.  Stanton  v.  Free- 
man, 19  Cal.  App.  464;  126  Pac.  377. 

Judgment  on  constructive  service.  Pub- 
lication of  summons  may  be  made  in  an 
action  to  quiet  title,  and  judgment  against 
a  non-resident,  based  thereon,  is  not  void, 
although  he  does  not  appear:  the  judg- 
ment, so  far  as  it  settles  the  title,  is  in 
the  nature  of  one  in  rem.  Perkins  v. 
Wakeham,  86  Cal.  580;  21  Am.  St.  Rep. 
67;  25  Pac.  51. 

Effect  of  judgment.  A  decree,  in  a  suit 
under  this  section,  that  the  defendant  has 
no  right,  title,  or  interest  in  certain  land, 
would  be  more  effective  as  a  final  adju- 
dication with  respect  to  the  legal  rights 
of  the  parties,  than  a  mere  judgment  for 
the  recovery  of  the  possession:  the  latter, 
to  some  extent,  leaves  open  to  be  proved, 
by  evidence  dehors  the  record,  what  rights 
might  have  been  asserted  in  the  action 
of  ejectment.  People  v.  Center,  66  Cal. 
551;  5  Pac.  263.  A  judgment  in  favor 
of  the  plaintiff,  in  an  action  to  quiet  title, 
becomes'  a  muniment  of  title  to  his  suc- 
cessor in  interest,  and  he  cannot  impair 
its  effect  by  withholding  consent  or  au- 
thority for  the  entry  of  judgment  bv  the 
clerk.  Baker  v.  Brickell,  102  Cal.  620;  36 
Pac.  950.  The  defendant  in  an  action  at 
law  to  recover  lands,  against  whom  judg- 
ment has  passed,  cannot  subsequently,  in 
a  distinct  suit,  assert  a  legal  right  which 
existed  when  the  ejectment  was  com- 
menced, nor  subsequently  claim  relief 
based  upon  an  equity  which  was  pleaded 
by  cross-complaint  in  the  ejectment;  so 
far,  the  judgment  in  favor  of  the  plain- 
tiff in  the  action  of  ejectment  is  con- 
clusive of  the  defendant's  rights.  People 
V.  Center,  66  Cal.  551;  5  Pac.  263;  6  Pac. 
481.  When  it  has  been  adjudicated  that 
the  defendant  has  no  adverse  claim  or 
interest  in  the  property  in  controversy, 
the  subject  of  litigation  is  exhausted;  and 
if  the  plaintiff  is  out  of  possession,  the 
judgment  necessarily  entitles  him  to  pos- 
session.    Landregan  v.  Peppin,  94  Cal.  465; 


907 


FEDERAL  AND  STATE  LAWS — PKIORITY  OK  MINER  S  EIGHTS. 


738 


29  Pac.  771.  One  who  is  not  a  party  or 
privy  to  a  judgment  is  not  affeeteil  by  it, 
and  neither  the  judtjnient  nor  an  execu- 
tion sale  of  the  land  affected  by  it  can 
i-hauge  his  rif^hts  in  the  land  or  create 
a  cloud  upon  his  title.  Roman  Catholic 
Archbishop  v.  Shipman,  69  Cal.  5S();  11 
Pac.  343.  A  judgment  of  dismissal  of  an 
action  of  ejectment,  brought  by  the  plain- 
tiff in  an  action  to  quiet  title  against  the 
same  defendant  for  the  recovery  of  the 
premises,  upou  the  same  day,  but  dismissed 
by  stipulation  of  the  parties,  after  judg- 
ment in  favor  of  the  plaintiff  in  the  action 
to  quiet  title,  each  party  paying  his  own 
costs,  cannot  be  set  up  to  defeat  a  motion 
for  the  writ  of  possession,  whatever  its 
effect  may  be  as  a  defense  to  anotlier  claim 
afterwards  brought  upon  the  same  cause 
of  action.  Landregan  v.  Pei)pin,  94  Cal. 
465;  29  Pac.  771.  "Adverse  claimants" 
must  be  made  parties  to  an  action  to  quiet 
title,  whether  the  service  is  personal  or 
by  publication;  and  where  the  virtual  rep- 
resentation of  unborn  remaindermen  is  pre- 
cluded, such  unborn  persons,  not  parties  to 
the  action,  cannot  be  bound  by  the  decree 
therein.  Los  Angeles  Countv  v.  Winans, 
13  Cal.  App.  234;' 109  Pac.  640. 

Priority  of  liens.  A  title  to  land,  under 
a  judgment  of  foreclosure  of  a  street-as- 
sessnjent  lien,  relates  back  to  the  date  of 
the  original  liens  foreclosed;  and  a  sher- 
iff's deed,  based  upon  a  judgment  of  fore- 
closure of  such  a  lien,  conveys  a  superior 
title  to  a  sheriff's  deed  based  upon  a  prior 
judgment  of  the  same  character,  where  the 
liens  under  which  the  prior  judgment  was 
rendered  are  invalid.  Brady  v.  Burke,  90 
Cal.  1;  27  Pac.  52. 

Mining  claims.  Relation  between  Fed- 
eral and  state  laws.  An  action  to  quiet 
title  to  mining  property  is  not  an  action 
brought  under  §  2326  of  the  Eevised  Stat- 
utes of  the  United  States,  to  determine 
which  of  the  parties  is  best  entitled  to 
purchase  from  the  United  States,  but  only 
an  ordinary  action  to  quiet  title;  the  pro- 
ceedings in  the  land-office  of  the  United 
States  are  utterly  immaterial  in  the  state 
court,  unless  they  tend  to  show  title  or 
right  of  possession  in  one  of  the  parties. 
Altoona  Quicksilver  Mining  Co.  v.  Integral 
Quicksilver  Mining  Co.,  114  Cal.  100;  45 
Pac.  1047.  An  action  to  quiet  title  to  a 
mining  claim,  not  involving  a  contest  in 
the  United  States  land-office,  is  to  be  gov- 
erned and  determined  by  the  practice  and 
the  rules  of  pleading  governing  in  state 
courts  in  ordinary  suits  brought  to  settle 
disputes  as  to  interests  in  land;  and  want 
of  title  in  the  jdaintiff  renders  it  unneces- 
sary to  examine  the  title  of  the  defend- 
ant. Schroder  v.  Aden  Gold  Mining  Co., 
144  Cal.  628;  78  Pac.  20.  Under  state 
laws,  either  party  may  bring  an  action 
to   determine  an   adverse   claim   to  mining 


property,  but  the  jurisdiction  aiid  the  pro- 
cedure governing  the  action  liepeud  en- 
tirely upon  the  state  constitution  and 
laws;  this  action  seems  well  adapted  to 
the  object  sought  to  be  accomjilished  by 
the  Federal  law,  for  the  rights  of  the 
jiarties  are  wholly  determined  l)y  act  of 
Congress,  and  involve  tlie  same  questions, 
as  to  the  relative  rights  of  the  parties, 
which  the  officers  of  the  land-ollice  would 
otherwise  be  required  to  pass  ujion.  Al- 
toona Quicksilver  Mining  Co.  v.  Integral 
Quicksilver  Mining  Co.,  114  Cal.  lUO;  45 
Pac.  1047.  The  rights  of  the  parties  to  the 
possession  of  a  mining  claim  are  entirely 
determined  by  the  laws  of  the  Unite<l 
States  granting  the  right  to  enter  u|>on 
mineral  lands  and  to  extract  metals  there- 
from and  to  acquire  title  thereto;  but  the 
suit  must  be  tried  in  every  respect  as  if  no 
contest  were  pending  in  the  land-office  of 
the  United  States  in  regard  to  the  right 
to  purchase  the  same.  Altoona  Quick- 
silver Mining  Co.  v.  Integral  Quicksilver 
Mining  Co.,  114  Cal.  100;  45  Pac.  1047. 

Mining-lands,  title  to,  by  prescription. 
Where  the  defendant  disclaims  any  inter- 
est, but  alleges  that  the  plaintiff  conveyed 
to  him  the  claim  in  controversy,  and  he, 
in  turn,  conveyed  to  other  defendants,  and 
the  evidence  at  the  trial  showed  that  the 
defendant  wished  to  develop  and  work  the 
mine,  and  in  exchange  for  the  right  to  do 
so,  purported  to  convey  to  the  plaintiff  the 
same  right  to  work  other  mines,  so  that 
the  transaction  practically  amounted  to  an 
exchange  of  a  right  to  w'ork  separate  min- 
ing claims,  the  conveyance  from  the  plain- 
tiff to  the  defendant  does  not  preclude  the 
plaintiff  from  afterwards  acquiring  title 
to  the  land  by  prescription,  as  against  the 
grantee  of  the  mining  right,  and  those 
claiming  under  it.  Baker  v.  Clark,  128 
Cal.  181;  60  Pac.  677. 

Mining-lands.  Rights  of  agriculturists 
subject  to  those  of  miners.  The  maxim, 
Qui  prior  in  tempore,  jiotior  in  jure,  can- 
not be  applied  in  protection  of  a  person 
w'ho  settles  upon  lands  reserved  from  set- 
tlement by  the  policy  of  the  law,  as 
against  one  entering  for  a  purpose  en- 
couraged wherever  minerals  may  be  found; 
if  it  were  otherwise,  persons  without  any 
right  but  that  of  possession  could,  under 
the  pretense  of  agriculture,  invade  the 
mineral  districts  of  the  state,  and  swallow 
up  the  entire  mineral  wealth  by  settle- 
ments upon  quarter-section  tracts  of  land, 
and  thus  destroy,  for  his  own  benefit,  the 
business  of  a  neighborhood,  and  put  the 
government,  as  well  as  the  mining  public, 
at  defiance.  McCIintock  v.  Brvden,  5  Cal. 
97;  63  Am.  Dec.  87;  Stoakes  v.  Barrett,  5 
Cal.  37.  Where  a  person  settles  for  agri- 
cultural purjioses,  upon  any  of  the  mining- 
lands  of  this  state,  such  settlement  is 
subject  to  the  rights  of  miners,  who  may 


§738 


ACTIONS   TO  DETERMINE   CONFLICTING  CLAIMS. 


908 


proceed,  in  good  faith,  to  extract  there- 
from any  valuable  metals  found  in  such 
lands,  in  the  most  practicable  manner,  and 
with  the  least  injury  to  the  occupying 
claimant.  McC'lintock  v.  Bryden,  5  Cal. 
97;  63  Am.  Dee.  87. 

Location  of  mining  claims.  The  laws  of 
the  state  constitute  a  part  of  the  laws  by 
which  a  mining  right  is  determined;  there- 
fore, where  possession  has  continued  for 
five  years  before  the  adverse  right  exists, 
it  is  equivalent  to  a  location,  under  the 
Federal  law.  Altoona  Quicksilver  Mining 
Co.  V.  Integral  Quicksilver  Mining  Co.,  114 
Cal.  100;  4.5  Pac.  1047.  The  discovery  of 
a  mining  claim  vests  no  right  or  title  to 
the  property,  and  is  but  one  step  in  acquir- 
ing title  thereto,  and  must  be  followed  by 
a  location,  which  consists  of  the  marking 
of  the  claim  by  monuments  so  that  its 
boundaries  can  be  readily  traced,  the  post- 
ing of  a  notice  thereon,  and,  where  the 
state  or  district  law  requires  it,  the  record- 
ing of  such  notice.  Adams  v.  Crawford, 
116  Cal.  495;  48  Pac.  488.  Where,  at  the 
date  of  the  location  of  a  mining  claim,  the 
land  was  vacant  public  land  of  the  United 
States,  open  to  exploration  and  location, 
and  the  plaintiff  performed  the  various 
acts  necessary  to  effect  an  effectual  loca- 
tion, he  is  entitled  to  judgment  in  an 
action  to  quiet  title.  Mitchell  v.  Hutchin- 
son, 142  Cal.  404;  76  Pac.  55.  Where  the 
plaintiff  first  made  the  discovery  of  a 
mining  claim,  but  left  without  making  a 
location,  and  a  valid  location  of  claims 
extending  each  way  from  the  point  of 
plaintiff's  discovery  is  first  made  by  other 
persons,  the  title  of  such  locators  will 
prevail  as  against  the  first  discoverers. 
Adams  v.  Crawford,  116  Cal.  495;  48  Pac. 
488.  A  location  of  a  mining  claim  is  not 
invalid  because  it  conforms  only  partially 
to  the  United  States  system  of  public-land 
surveys:  such  conformity  is  required,  only 
in  so  far  as  it  is  reasonably  practicable. 
Mitchell  V.  Hutchinson,  142*  Cal.  404;  76 
Pac.  55.  The  statutes  and  mining  laws  of 
the  United  States  do  not  contemplate  the 
forcible  or  clandestine  entry  and  location 
of  lands  in  the  peaceable  possession  of 
other  parties,  who  have  located  the  same 
in  good  faith,  and  who  are  endeavoring 
to  secure  their  claims;  and  in  an  action  to 
quiet  title  thereto,  the  claim  of  parties 
under  such  entry  cannot  be  sustained. 
Weed  V.  Snook,  144  Cal.  4.39;  77  Pac.  1023. 

Recording  notice  of  location  of  mining 
claim.  Where  an  act  provided  that  a  copy 
of  the  notice  of  location  should  be  re- 
corded within  six  days  from  the  date  of 
posting,  and  that  a  notice  posted  without 
being  so  recorded  should  not  be  considered 
notice  to  subsequent  locators,  a  substantial 
compliance  with  the  requirements  of  the 
act  is  sufficient;  and  if  the  description  con- 
tained in  the  notice  is  complete  enough  to 
enable  any  one  examining  it  to  ascertain 


therefrom  that  the  land  actually  claimed 
is  included  therein,  there  is  such  a  sub- 
stantial compliance  as  will  satisfy  the  stat- 
ute, for  such  a  description  gives  full  notice 
that  the  land  has  been  in  fact  ajipropri- 
ated  bv  others.  Mitchell  v.  Hutchinson, 
142  Cal.  404;  76  Pac.  5.5. 

Development-work  on  mines.  To  hold 
that  possession  is  enough  to  remove  a  min- 
ing claim  from  the  category  of  unoccupied 
land,  or  that  it  is  sufficient  to  prevent 
one  from  making  a  valid  location  thereon, 
would  be  to  permit  a  locator  to  hold  it 
against  all  the  world  for  an  indefinite 
time  without  doing  any  development-work 
whatever.  Goldberg  v.  Bruschi,  146  Cal. 
708;  81  Pac.  23.  \Vhere  a  mine  is  idle, 
the  services  of  a  watchman  in  looking 
after  the  jjroperty  and  taking  care  of  the 
same  may  constitute  work  upon  the  claim 
sufficient  to  hold  it,  if  such  care  is  neces- 
sary to  preserve  tunnels,  buildings,  or 
structures  erected  to  work  the  mine;  but 
if  there  is  only  the  naked  claim  to  be 
looked  after,  and  the  watchman  is  placed 
there  merely  to  warn  prospectors,  and  thus 
prevent  a  relocation,  it  is  not  labor  upon 
the  mine,  in  the  sense  of  the  statute.  Al- 
toona Quicksilver  Mining  Co.  v.  Integral 
Quicksilver  Mining  Co.,  114  Cal.  100;  45 
Pac.  1047.  Where  the  defendant  did  no 
work  on  a  mining  claim  at  any  time  sub- 
sequent to  its  location,  as  required  by  law, 
it  ceases  to  have  any  validity  as  against 
a  valid  relocation  by  the  plaintiff,  and 
the  mere  possession  of  the  claim  by  the 
defendant,  whether  actual  or  constructive, 
without  development-work,  cannot  prevent 
such  relocation.  Goldberg  v.  Bruschi,  146 
Cal.  708;  81  Pac.  23.  Where  the  defend- 
ant proves  a  prior  location,  the  burden 
is  on  the  plaintiff  to  prove  a  failure  of  the 
defendant  to  do  the  required  annual  work; 
and  this  he  has  a  right  to  do  in  rebuttal, 
without  any  averment  to  that  effect  in  his 
complaint.  Goldberg  v.  Bruschi,  146  Cal. 
708;  81  Pac.  23. 

Statute  of  limitations,  and  laches.  A 
plea  of  the  statute  of  limitations  may  be 
interposed  in  a  suit  in  equity,  as  well  as 
in  an  action  at  law;  and  this,  without 
changing  the  character  of  the  action;  one 
of  the  defenses  peculiar  to  a  court  of 
equity  is  the  lapse  of  time.  Hancock  v. 
Plummer,  66  Cal.  337;  5  Pac.  514.  As 
between  the  parties  to  a  suit  in  partition, 
the  statute  of  limitations  does  not  run 
while  the  suit  is  jjcnding.  Christy  v. 
Spring  Valley  Water  Works,  97  Cal.  21; 
31  Pac.  1110.  Where  the  plaintiff  asserts 
no  equitable  rights,  the  statute  of  limita- 
tions, anil  not  the  doctrine  of  laches, 
plainly  furnishes  the  rule  by  which  to  <le- 
termine  whether  the  delay  to  assert  the 
right  is  fatal  to  the  action.  Anzar  v.  Mil- 
ler, 90  Cal.  342;  27  Pac.  299.  Where  the 
plaintiff  claimed  title  derived  from  the 
heirs  of  a  grantee  under  a  Mexican  grant, 


909 


LACHES — STATUTE  OF  LIMITATIONS — MAXIM — APPEAL. 


§738 


the  statute  of  limitations  did  not  begin 
to  run  against  his  action  for  the  recovery 
of  possession  until  the  imtent  was  issued 
by  tlie  board  of  land  coinniissiouers.  Val- 
entine V.  Sloss,  103  Cal.  215;  37  Pac.  326. 
The  statute  of  limitations  did  not  com- 
mence to  run  against  i)arties  claiming  un- 
der a  patent  confirming  a  Mexican  grant 
until  the  date  of  the  issuance  of  the 
patent,  where  the  adverse  claimant  did 
not  show  the  existence  of  a  perfect  grant 
jirior  to  the  issuance  of  the  jiatent.  Tuffree 
V.  Poihemus,  1()8  Cal.  670;  41  Pac.  806. 
The  time  to  commence  an  action,  by  the 
people  of  the  state,  under  this  section  is 
limited,  by  §  31-5,  ante,  only  by  a  continu- 
ous adverse  possession  of  the  lands  for  ten 
years,  on  the  part  of  the  defendant;  the 
mere  assertion  of  an  adverse  claim,  with- 
out possession,  or  any  proceeding  to  en- 
force it,  can  never  ripen  into  a  legal  or 
equitable  right  as  against  one  seised  of 
legal  estate  when  the  adverse  claim  was 
first  asserted;  each  day's  assertion  of  an 
adverse  claim  gives  a  cause  of  action  to 
quiet  title,  until  such  action  has  been 
brought.  People  v.  Center,  66  Cal.  551;  5 
Pac.  263.  A  plaintiff,  who  has  been  in 
the  possession  of  land,  cannot  be  guilty 
of  laches  in  the  bringing  of  an  action  to 
remove  a  cloud,  at  any  time  before  an 
action  has  been  brought  to  disturb  his  pos- 
session, or  to  deprive  him  of  any  enjoy- 
ment of  his  right;  the  continued  assertion 
of  the  adverse  claim  constitutes,  from  day 
to  day,  a  new  cause  of  action.  Hyde  v. 
Redding,  74  Cal.  493;  16  Pac.  380.  A 
wife  who  executed  and  acknowledged  a 
deed  of  her  separate  property  to  her  hus- 
band, and  retained  the  same  without  de- 
livery, is  equitably  estoi)ped  to  deny  the 
delivery  and  to  claim  the  premises  in  an 
action  to  quiet  title  against  a  bona  fide 
purchaser  deriving  title  through  her  hus- 
band, who  wrongfully  obtained  possession 
of  the  deed  an<l  sold  the  property,  wdiere, 
instead  of  promptly  repudiating  the  act  of 
her  husband,  she,  with  full  knowledge  of 
the  facts,  allowed  such  purchaser  to  make 
permanent  improvements  upon  the  prop- 
erty, without  notice  of  her  claim  thereto 
prior  to  the  commencement  of  the  action, 
which  was  nearly  three  years  after  acquir- 
ing such  knowledge.  Baillarge  v.  Chirk, 
145  Cal.  589;  104  Am.  St.  Kep.  75;  79  Pac. 
268.  An  action  to  correct  a  mistake  in  a 
conveyance,  to  compel  the  defeu<lant  to 
execute  a  deed  conveying  to  the  plaintiff 
land  included  by  mistake  in  another  con- 
veyance, and  to  quiet  the  jdaintiff's  title 
thereto,  is  not  barred,  except  by  the  five 
years'  limitation  statute.  Murphy  v.  Crow- 
ley, 140  Cal.  141;  73  Pac.  820.  Where  the 
deceased  executed  deeds  of  distinct  par- 
cels of  land  to  his  daughter,  which  were 
absolute  and  unlimited,  an  action  begun 
more  than  five  years  after  the  execution 
of  the  deeds,  by  the  widow  of  the  deceased, 


against  the  daughter  and  other  chili! ren 
and  the  administrator,  to  quiet  her  title 
to  one  third  of  the  proi'crly,  and  to  have 
it  adjudged  that  the  defencJantH  have  no 
other  title  or  interest  therein  than  as  heirs 
of  the  deceased,  on  the  ground  that  the 
deeds  were  made  ujton  certain  alleged 
trusts  which  were  invalid  an<l  contrary  to 
law,  is  barred  by  the  statute  of  limita- 
tions; and  where  the  deceased,  at  the  time 
of  the  execution  of  the  deeds,  assigned 
and  delivered  to  his  son,  one  of  the  (lefend- 
ants,  certain  notes,  bonds,  and  other  evi- 
dence of  indebtedness,  upon  like  trusts, 
such  assignment  is  also  barred  by  the  stat- 
ute, as  against  the  widow.  Page  v.  I'age, 
143  Cal.  602;  77  Pac.  452.  In  an  action 
to  quiet  title  to  city  lots,  the  defense  that 
the  lots  were  assessed  and  taxes  levied 
more  than  three  years  prior  to  the  begin- 
ning of  the  action,  and  demanding  their 
payment  as  a  condition  of  plaintiff's  re- 
covery, is  barred  by  the  statute;  ami  where 
the  record  in  the  case  shows  that  the  as- 
sessment and  the  levy  were  not  made  as 
directed  by  law,  they  were  invalid  and 
void.  Dranga  v.  Rowe,  127  Cal.  506;  59 
Pac.  944. 

"He  who  seeks  equity  must  do  equity." 
The  rule  that  he  who  seeks  equity  must 
do  equity  ajiplics  to  actions  under  this 
section.  Holland  v.  Hotchkiss,  162  Cal. 
306;  123  Pac.  258;  Campbell  v.  Canty,  162 
Cal.  382;  123  Pac.  265.  Where  the  pur- 
chaser of  land  pays  a  deposit  on  account 
of  the  sale,  under  an  agreement  with  the 
vendor,  by  which  he  was  to  have  the  de- 
posit returned  to  him  if  the  title  should 
not  be  satisfactory,  and  it  appears  that 
the  purchaser  is  entitled  to  a  return  of  the 
deposit,  the  vendor  cannot  have  his  title 
quieted  against  the  purchaser  until  he  first 
restores  the  money  received.  Benson  v. 
Shotwell,  87  Cal.  49;  25  Pac.  249;  llency 
V.  Pesoli,  109  Cal.  53;  41  Pac.  819. 

Appeal.  In  an  action  to  quiet  title, 
counsel  will  not  be  allowed  to  try  the 
case  upon  the  theory  that  the  issue  was 
properly  before  the  court  below,  and  thus 
entice  his  adversary  into  a  trap  to  be 
sprung  in  the  appellate  court  at  the  last 
moment:  technical  objections  to  pleadings 
will  not  be  countenanced  on  ajipeal,  when 
the  case  was  tried  in  the  court  below  upon 
the  theory  that  the  issues  were  i)roperly 
made.  Casey  v.  Leggett,  125  Cal.  664;  58 
Pac.  264.  In  an  action  to  determine  the 
right  to  a  mining  claim,  where  the  burden 
rested  upon  the  plaintiff  to  satisfy  the 
court  that  his  contention  as  to  the  location 
of  the  monuments  was  correct,  the  finding 
of  the  court  should  not  be  disturbed,  as, 
on  appeal,  interference  with  the  findings 
is  only  warranted  where  they  are  contrary 
to  all  the  evi.lence,  and  there  is  no  sub- 
stantial evidence  to  support  them.  Schro- 
der v.  Aden  Gold  Mining  Co..  144  Cal.  628; 
78   Pac.   20.     In   an   action   to   quiet   title, 


§739 


ACTIONS   TO  DETERMINE   CONFLICTING   CLAIMS. 


910 


alleged  error  in  the  admission  of  a  certain 
judgment  roll  in  evidence  will  not  be  con- 
sidered, where  the  roll  is  not  incorporated 
in  the  record.  Kobinson  v.  Muir,  151  Cal. 
US;  90Pac.o21. 

What  is  color  of  title.  See  notes  14  Am.  Dec. 
580  ;  88  Am.  St.  Rep.  701. 

Bills  to  remove  clouds  on  title.  See  note  67 
Am.  Dec.  110. 

What  is  and  who  may  maintain  suit  to  remove 
cloud  on  title.    See  note  45  Am.  St.  Rep.  3  73. 

Sufficiency  of  unrecorded  deed  to  give  color  of 
title.     See  note   1  Ann.   Ca.s.   761. 

Condemnation  proceedings  as  furnishing  color 
of  title  to  land  claimed  by  adverse  possession. 
See  note  19  .Vnn.  Cas.  402. 

Power  of  court  of  equity  to  cancel  restrictive 
covenant  in  deed  as  cloud  on  title.  See  note  Ann. 
Cas.  1912A,  765. 

Invalid  tax  deed  as  color  of  title.  See  note  11 
L.  R.  A.  (N.  S.)  772. 

Action  to  quiet  title  against  numerous  persons 
holding  under  common  source  where  each  claims 
a  separate  and  distinct  tract  of  the  land.  See 
note  126  .A.m.  St.  Rep.  991. 

Judgments  or  decrees  sufficient  to  constitute 
cloud  on  title.    See  note  7  Ann.  Cas.  334. 

Instrument  executed  by  stranger  to  title  as 
constituting  cloud  thereon.  See  note  Ann.  Cas. 
1912C,  834. 

Sufficiency  of  possession  by  agent  or  tenant  to 
enable  principal  or  landlord  to  maintain  suit  to 
quiet  title.    See  note  18  Ann.  Cas.  860. 

Eight  of  personal  representative  to  maintain 
action  to  quiet  title  to  decedent's  real  estate.  See 
note  Ann.  Cas.  1913A,  996. 

Right  of  holder  of  equitable  title  to  land  to 
maintain  action  to  quiet  title  against  holder  of 
legal  title.    See  note  Ann.  Cas.  1913B,  89. 

Right  of  purchaser  at  judicial  or  execution  sale 
to  bring  suit  to  quiet  title.  See  note  Ann.  Cas. 
1912B,  380. 

Eight  of  one  who  has  placed  a  purchaser  in 
possession  to  maintain  a  bill  to  quiet  title  against 
an  outstanding  title.  See  note  12  L.  R.  A.  (N.  S.) 
652. 

Right  of  one  holding  a  bond  for  title  to  main- 
tain a  bill  against  a  third  person  to  remove  cloud. 
See  note  15  L.  R.  A.  (N.  S.)  413. 

Injunction  to  prevent  cloud  on  title.  See  note 
62  Am.  Dec.  523. 

Necessity  that  plaintiff  in  action  to  quiet  title 
allege  title  or  possession  at  time  of  commence- 
ment of  action.    See  note  Ann.  Cas.  1913D,  386. 


Bunning  of  statute  of  limitations  against  action 
to  quiet  title.    See  note  20  Ann.  Cas.  43. 

Eight  to  jury  trial  in  action  to  quiet  title. 
See  notes  3  Ann.  Cas.  248;   18  Ann.   Cas.  245. 

Effect  of  remedy  at  law  on  right  to  maintain 
suit  to  quiet  title.    See  note  12  h.  R.  A.  (N.  S.)  50. 

CODE  COMMISSIONEES'  NOTE.  Section  380 
of  this  code  provides  that  "in  an  action  brought 
by  a  person  out  of  possession  of  real  property 
to  determine  an  adverse  claim  of  an  interest  or 
estate  therein,  the  person  making  such  adverse 
claim  and  all  persons  in  possession  must  be 
joined  as  defendants."  Section  331  provides 
that  "persons  claiming  an  interest  in  lands  under 
a  common  source  of  title  may  unite  as  plaintiffs 
in  an  action  against  any  person  claiming  an 
adverse  interest  therein,  for  the  purpose  of  de- 
termining such  adverse  claim,  or  of  establishing 
such  common  source  of  title,  or  of  declaring  the 
same  to  be  held  in  trust,  or  for  removing  a  cloud 
thereon."  And  §  384,  ante,  that  "all  persons 
holding  as  tenants  in  common,  joint  tenants  or 
coparceners,  or  any  number  less  than  all,  may 
jointly  or  severally  commence  or  defend  any 
civil  action  or  proceeding  for  the  enforcement 
or  protection  of  the  rights  of  such  property." 
See  also  Ross  v.  Heintzen,  36  Cal.  313.  This 
section  enlarges  the  class  of  cases  in  which 
equitable  relief  could  be  formerly  sought  to  quiet 
title.  Curtis  v.  Sutter,  15  Cal.  259.  This  action 
does  not  lie  to  determine  an  adverse  claim  to  the 
use  of  water.  Nevada  County  etc.  Canal  Co.  v. 
Kidd,  37  Cal.  283.  But  does  not  lie  to  deter- 
mine an  adverse  claim  to  mining  claims.  Merced 
Mining  Company  v.  Fremont,  7  Cal.  319;  68  Am. 
Dec.  262.  The  "adverse  claim,  estate,  or  in- 
terest" need  not  be  of  a  legal  or  equitable 
title;  the  terms  include  every  description  of 
claim  whereby  the  plaintiff  might  be  deprived  of 
the  property,  or  its  title  be  clouded,  or  value 
depreciated,  etc.  Head  v.  Fordyce,  17  Cal.  149. 
The  test  by  which  the  question  whether  a  deed 
would  cloud  title,  is  this:  Would  the  owner  of 
the  property,  in  an  action  of  ejectment  brought 
by  the  adverse  party,  founded  upon  the  deed,  be 
required  to  offer  evidence  to  defeat  a  recovery? 
If  such  proof  would  be  necessary,  the  cloud  would 
exist;  otherwise  not.  Pixley  v.  Huggins,  15  Cal. 
128.  If  it  is  adjudged  that  the  defendant  has 
no  title,  the  judgment  will  not  be  reversed  be- 
cause it  restrains  the  defendant  from  setting  up 
the  title  or  claim  declared  invalid.  Brooks  v. 
Caldorwood,  34  Cal.  563. 


§  739.  When  plaintiff  cannot  recover  costs.  If  the  defendant  in  such 
action  disclaim  in  his  answer  any  interest  or  estate  in  the  property,  or  suffer 
judgment  to  be  taken  against  him  without  answer,  the  plaintiff  cannot  recover 
costs. 


Costs.     Post,  §§  1022  et  seq. 

Legislation  §  739.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §255),  changing  "shall 
not"  to  "cannot." 

Where  judgment  will  be  without  costs. 
Even  where  the  defendant  makes  no  claim, 
he  must  file  a  disclaimer,  and  judgment 
may  be  entered  against  him,  though  in 
case  of  a  disclaimer  the  judgment  must 
not  be  for  costs.  Castro  v.  Barry,  79  Cal. 
443;  21  Pac.  946.  When,  in  an  action  to 
quiet  title  to  land,  the  defendant  dis- 
claims any  interest  or  estate  in  the  prem- 
ises, it  is  immaterial  whether  or  not  he 
had  ever  before  claimed  an  interest  or 
estate  therein  a<lversely  to  the  plaintiff; 
in  either  event,  the  plaintiff  would  be  en- 
titled simply  to  a  judgment  quieting  his 
title,  without  costs.  Bulwer  Consol.  Min- 
ing  Co.    V.    Standard    Conaol.    Mining    Co., 


S3  Cal.  589;  23  Pac.  1102.  Where  the  de- 
fendant disclaims  as  to  part  of  the  prem- 
ises, the  dismissal  of  the  action  as  to 
such  part  is  not  erroneous:  in  such  case 
the  judgment  for  the  plaintiff  would,  in 
any  event,  be  merely  formal,  and  without 
costs.  Packer  v.  Doray,  4  Cal.  Unrep.  297; 
34  Pac.  628.  In  an  action  to  quiet  title, 
the  plaintiff  is  entitled  to  judgment,  al- 
though the  defendant  makes  a  disclaimer, 
but  without  costs,  the  same  as  in  case  of 
default:  it  would  be  strange  if  the  plain- 
tiff were  entitled  to  judgment  on  dis- 
claimer, and  not  entitled  to  judgment 
where  the  answer  shows  no  legal  defense. 
Dranga  v.  Rowe,  127  Cal.  506;  59  Pac.  944. 

When  judgment  will  be  set  aside.  An 
order  setting  aside  a  judgment  quieting 
the  title  of  the  plaintiff  to  city  lots,  to 
which  the  defendant  disclaimed  title,  and 


911     RIGHT  TEUMINATING  PENDING  SUIT — IMPKOVEMENTS  AS  SET-OFF.     §§  740,  741 


whureas,  in  fat-t,  the  conveyances  were 
made  peiidinfj  the  suit,  and  after  a  notice 
of  lis  {)en<lens  had  been  filed  by  the  plain- 
tiff. Tnderwood  v.  Underwood,  87  Cal. 
523;  2.j  Pac.  lUGf,. 

CODE  COMMISSIONERS'  NOTE.  If  the  de- 
fondant,  wliilr  (Jisclaiiiiinn,  diiiii-h  the  poSHCKBion 
of  plaintiff  and  conipels  him  to  prove  it.  plaintiff 
is  entitled  to  costs.  Brooks  v.  Calderwood,  34 
Cal.  .'iG.3. 


allowing  the  grantees  of  the  defendant  to 
come  in  and  defend,  will  not  be  disturl)ed, 
where  it  is  shown,  on  the  part  of  the  de- 
fendant and  hi.s  grantees,  that  the  dis- 
claimer was  made  through  au  inadvertence 
and  mistake  of  fact  of  the  defendant's 
attorney  in  supposing  that  the  property 
had  been  conveyed  by  the  defendant 
before     the    commencement     of    the     suit, 

§  740.  Where  plaintiff's  right  terminates  pending  suit,  what  he  may  re- 
cover. Ill  an  aetioii  for  the  rt'covery  of  property,  where  the  i)laintiff  sliows 
a  riyht  to  recover  at  the  time  the  action  was  commenced,  but  it  appears  that 
his  right  has  terminated  during  the  pendency  of  the  action,  the  verdict  and 
judgment  must  be  according  to  the  fact,  and  the  plaintiff  may  recover  dam- 
ages for  withholding  the  property. 

ered  upon  such  application.    Landregan  v. 
Peppin,  94  Cal.  465;  29  Pac.  771. 

Findings.  In  an  action  to  quiet  title, 
where  the  defendant  disclaims  any  other 
interest  than  that  the  lands  were  situated 
within  the  boundaries  of  an  irrigation  dis- 
trict, and  that  the  same  were  sold  to  him 
on  account  of  an  assessment,  levy  of  tax, 
and  delinquent  sale  thereunder,  for  the 
benefit  and  at  the  instance  of  the  irriga- 
tion district,  it  is  error  for  the  court  to 
find  that  the  plaintiff  is  the  owner  in  fee, 
and  that  there  is  no  adverse  claim  of  de- 
fendant to  be  determined  in  the  action, 
and  that  any  rights  which  the  defendant 
may  have  acquired  through  his  purchase 
at  the  delinquent  sale  cannot  be  deter- 
mined in  the  action.  Quint  v.  McMullen, 
103  Cal.  381;  37  Pac.  381. 

Damages.  Where  a  successor  to  title,  in 
ejectment,  recovers,  the  resultant  dam- 
ages for  the  value  of  the  use  and  occupa- 
tion, during  the  period  of  the  unlawful 
detention,  are  properly  awardable  to  him. 
Cassiu  v.  Nicholson,  154  Cal.  497;  98  Pac. 
190. 

CODE  COMMISSIONERS'  NOTE.  Moore  v. 
Tice,  22  Cal.  513;  Moss  v.  Shear,  30  Cal.  467; 
Gee  V.  Moore,  14  Cal.  472. 


Pendency  of  action.    Post,  §  1049. 

Legislation  §  740.  1.  Enacted  March  11,  1872 
(based  on  Practice  Act,  §  2.56),  changing  "shall" 
to    "must." 

2.  Amendment  by  Stats.  1901,  p.  160;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  686;  the  code 
commissioner  saying,  "Tlie  word  'real'  is  omitted 
before  the  word  'property,'  the  amendment  thus 
extending  the  benefit  of  the  section  to  all  classes 
of  pro))erty." 

Pleading.  If  the  defendant  has  ac- 
quired title  to  the  demanded  premises 
l)ending  the  litigation,  evidence  of  this 
fact  cannot  be  introduced,  unless  it  is 
pleaded  as  a  defense  in  a  supplemental 
answer.  McMinn  v.  O'Connor,  27  Cal. 
238.  A  denial  of  the  allegations  of  the 
complaint  puts  in  issue  the  title  of  the 
plaintiff  at  the  date  alleged,  or  at  the  com- 
mencement of  the  action;  and  any  title 
acquired  subsequently  to  the  issue  thus 
joined  must  be  set  up  by  a  supplemental 
answer  in  the  nature  of  a  plea  puis  darrein 
continuance.    Moss  v.  Shear,  30  Cal.  468. 

Defense.  Where  judgment  has  been  ren- 
dered in  favor  of  the  plaintiff  in  an  action 
to  quiet  title,  the  fact  that  the  defendant, 
since  the  date  of  the  judgment,  has  pur- 
chased an  outstanding  title,  is  no  defense 
to  an  application  for  a  writ  of  possession, 
nor  can  the  merits  of  the  claim  be  consid- 


§  741.  When  value  of  improvements  can  be  allowed  as  a  set-off.  When 
damages  are  claimed  for  withholding  the  property  recovered,  upon  which 
permanent  improvements  have  been  made  by  a  defendant,  or  those  under 
whom  he  claims,  holding  under  color  of  title  adversely  to  the  claim  of  the 
plaintitf,  in  good  faith,  the  value  of  such  improvements  must  be  allowed  as 
a  set-off  against  such  damages. 

faith,  can  only  be  allowed  as  a  set-off  to 
the  damages.  Yount  v.  Howell,  14  Cal. 
465.  The  defendant  cannot  have  his  im- 
provements set  off  against  the  mesne 
profits,  where  they  were  made  after  the 
plaintiff's  title  accrued,  or  where  the  hold- 
ing of  the  defendant  is  not  adverse,  within 
this  section.  Bay  v.  Pope,  18  Cal.  694. 
The  right  to  set  off  the  value  of  improve- 
ments,   against     the     claim    for    damages, 


Counterclaim. 

1.  Generally.    Ante,  §  4:^8. 

2.  Waived,     unless     defendant     sets     it     up. 
Ante,  §  439. 

Legislation  8  741.  Enacted  March  11,  1872 
(baspd  on  Practice  Act,  §  2.t7),  changing  (1) 
"claims"   to   "claim"   and   (2)    "shall"   to   "must." 

Set-off  of  improvements.  The  value  of 
improvements  uj)on  the  premises,  even 
where  the  defendant  holds  under  color  of 
title    adversely    to    the   plaintiff,    in    good 


§§  742,  743 


ACTIONS  TO  DETERMINE  CONFLICTING  CLAIMS. 


912 


comes  from  the  statute,  and,  as  a  matter 
of  pleading,  all  the  facts  upon  which  the 
right  is  by  the  statute  made  to  hinge 
should  be  alleged.  Carpentier  v.  Small,  35 
Cal.  346.  The  right  of  a  defendant  to  set 
off  the  value  of  improvements  made  by 
him,  against  the  claim  of  the  plaintiff  for 
damages,  depends  upon  whether  they  were 
made  by  him  or  his  grantors  holding  under 
color  of  title  adverse  to  the  plaintiff,  in 
good  faith,  and  upon  whether  they  were 
permanent  or  not.  Carpentier  v.  Small,  35 
Cal.  346;  Love  v.  Shartzer,  31  Cal.  487; 
Wise  V.  Burton,  73  Cal.  174;  14  Pac.  683. 
The  provisions  of  this  section  for  the  set- 
off of  improvements  apply  only  to  improve- 
ments made  in  good  faith,  under  color  of 
title,  where  the  holding  is  adverse;  and 
the  holding  of  such  purchaser  is  not  ad- 
verse to  his  vendor  until  after  the  demand 
for  possession.  Hannan  v.  MclNickle,  82 
Cal.  122;  23  Pac.  271.  Under  this  section, 
allowances  for  improvements  can  only  be 
made  as  an  offset  for  damages  claimed  for 
withholding  possession,  where  the  court 
finds  that  the  value  of  the  improvements 
placed  on  the  land  is  in  excess  of  the  value 
of  the  rents  and  profits,  and  therefore 
allowed  no  judgment  for  rents  or  damages. 
Huse  v.  Deii,  85  Cal.  390;  20  Am.  St.  Rep. 
232;  24  Pac.  790. 

Damages  for  improvements.  Although 
the  owner  is  entitled  to  full  compensation 
for  the  land  taken,  and  for  all  permanent 
improvements  thereon  made  by  himself, 
or  by  those  from  whom  he  derived  title, 
yet  he  is  not  entitled  to  damages  for  im- 


provements made  by  the  party  at  whose 
suit  the  land  is  afterwards  condemned, 
without  authority  of  law  or  the  consent 
of  the  owner  of  the  land.  Stewart  v 
Sefton.  108  Cal.  197;  41  Pac.  293. 

Eight  to  allowance  for  improvements  made  be- 
fore color  of  title.  See  note  37  L.  R.  A.  (N.  S.) 
918. 

CODE  COMMISSIONERS'  NOTE.  1.  Value  of 
improvements  can  only  be  allowed  as  a  set-off  to 
the  damages.  Yount  v.  Howell,  14  Cal.  465 ; 
Ford  V.  Helton,  5  Cal.  319.  Such  set-off  must 
be  claimed  in  the  answer.  Carpentier  v.  Gardiner, 
29  Cal.  160.  The  defendant  cannot  have  his 
improvements  set  of¥  against  the  mesne  profits, 
if  the  improvements  were  made  after  plaintiff's 
title  accrued,  or  where  the  holding  of  the  de- 
fendant is  not  adverse.  Bay  v.  Pope,  18  Cal. 
694.  One  who  entered  under  a  bond  for  a  deed 
from  the  plaintiff,  can  set  off  his  improvements 
against  the  damages  for  use  and  occupation. 
Kilburn  v.  Ritchie,  2  Cal.  145;  56  Am.  Dec.  326. 
Where  the  defendant  occupied  and  improved  the 
land,  under  color  of  title,  the  improvements 
erected  by  him  constitute  a  set-off,  to  the  extent 
of  their  value,  to  the  damages  recovered  by  the 
plaintiff  for  the  withholding  of  possession. 
Welch  V.  Sullivan,  8  Cal.  165.  But  the  improve- 
ments must  have  been  made  in  good  faith.  Car- 
pentier V.  Mitchell,  29  Cal.  330;  Carpentier  v. 
Small,  35  Cal.  347;  Love  v.  Shartzer,  31  Cal. 
4S8;  Carpentier  v.  Mendenhall,  28  Cal.  485;  87 
Am.  Dec.  135. 

2.  Damages.  In  ejectment,  if  the  court  finds 
the  value  of  the  use  and  occupation  in  both  gold 
and  United  States  treasury  notes,  judgment  may 
be  rendered  for  the  currency  value.  Carpentier 
v.  Small,  35  Cal.  347.  If  the  defendant  pleads 
the  statute  of  limitations,  the  plaintiff  can  only 
recover  the  rents  and  profits  (Carpentier  v. 
Mitchell,  29  Cal.  330),  or  damages  for  the  de- 
tention for  three  years  next  before  the  com- 
mencement of  the  action.  Love  v.  Shartzer,  31 
Cal.  488.  Plaintiff  is  entitled  to  recover  dam- 
ages measured  by  the  value  of  the  rents  and 
profits  up  to  the  time  of  judgment.  Love  v. 
Shartzer,  31  Cal.  488. 


§  742.  An  order  may  be  made  to  allow  a  party  to  survey  and  measure 
the  land  in  dispute.  The  court  in  which  an  action  is  pending  for  the  recov- 
ery of  real  property,  or  for  damages  for  an  injury  thereto,  or  a  judge  thereof 
may,  on  motion,  upon  notice  by  either  party  for  good  cause  shown,  grant 
an  order  allowing  to  such  party  the  right  to  enter  upon  the  property  and 
make  survey  and  measurement  thereof,  and  of  any  tunnels,  shafts,  or  drifts 
therein,  for  the  purpose  of  the  action,  even  though  entry  for  such  purpose 
has  to  be  made  through  other  lands  belonging  to  parties  to  the  action. 

Order  for  survey,  where  title  to  land  in  two  (3)  changing  "purposes"  to  "purpose,"  and  (4) 
counties  disputed.     See   Pol.   Code,  §  4216.  adding   last   clau.<!e,    beginning   "even    though  " 

Legislation  S  742.     1.    Enacted  March  11,  1873  .tr?ki,fj"ont '  "o'r''  f  "c'lf,,^^'^ -'/^.^^^.P-  "^.^'•'   i'^  ^ 

(bas/d    on    P,.ctice    Act.  §  258),    (1)    adding    ■/or  .^e'rVof^  ^d    (^2)  \^17,%  ^feon'-^^S    ■ffi^ 

for   damages   for   an    injury   thereto,       (2)    adding  in"  tucicuu      lo      mere 

"and  of   any   tunnels,    shafts,   or   drifts  thereon," 

§  743.  Order,  what  to  contain,  and  how  served.  If  unnecessary  injury 
done,  the  party  surveying  to  be  liable  therefor.  The  order  must  describe 
the  property,  and  a  copy  thereof  must  be  served  on  the  owner  or  occupant; 
and  thereupon  such  party  may  enter  upon  the  property,  with  necessary 
surveyors  and  assistants,  and  make  such  survey  and  measurement;  but  if 
any  unnecessary  injury  be  done  to  the  property  he  is  liable  therefor. 


Legislation  8  743.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §259),  changing  (1) 
"shall"   to   "must"   in  both  instances,    (2)    "meas- 


urements" to  "measurement,"  and  (3)    "shall  be" 
to  "is" 


913 


MORTGAGE  NOT   CONVEYANCE — DEED  MORTGAGE  WHEN. 


§744 


§  744.     A  mortgage  must  not  te  deemed  a  conveyance,  whatever  its  terms. 

A  niortgayi-  oi"  real  property  shall  not  be  deemed  a  eonveyance,  whatever 
its  terms,  so  as  to  enable  the  owner  of  the  mortf,'at;e  to  reeover  po.ssession  of 
the  real  pi-operty  without  a  foreelosure  and  sale. 

deemed     mortgage.       Civ.     Code, 


Conveyance 
§§  'Jirji,  i;<)'jr>. 

Proof.    (  iv.  Todo,  g  292 
Mortgagee's  possession 


Civ.  Codp,  §  2927. 


Legislation  S  744.  1.  Enacted  M.Trch  11,  1872; 
reoiiartniont   uf  Practice   Act,  §  2(iO. 

2.  Kfpeal  by  Stat.s.  1901.  p.  KiO :  unconsti- 
tutional.   See  note  ante,  §  5. 

Construction    of    section.     This    section 
was  a(loi)teii  in  full  view  of  the  fact  that 
mortgages  were  in  coiiimon  use  and  recog- 
nized by  law,  whether  enforced  in  a  court 
of  law  or  of  ecjuity,  in'  various  forms,  some 
with  a  condition  of  defeasance  in  the  in- 
strument  itself,    others   in    a   separate    in- 
strument,  and    still     others    without    any 
defeasance  in  writing  at  all;  and  the  pro- 
vision covers  all  these  cases,  whatever  the 
terms  of  the  instrument;   it  was  intended 
to  put  them  all  on  a  common  footing,  and 
treat    them,    as    the    parties    intended,    as 
securities  for  the  performance  of  the  thing 
to  be  performed,  and   not  as   transferring 
either  the  title  or  the  right  of  possession, 
without  an  express  agreement  that  posses- 
sion might  be  taken  by  the  party  secured. 
Jackson  v.  Lodge,  36  Cal.  28.     The  words, 
"whatever   its   terms,"   in  this   section,   do 
not  prohibit  separate  stipulations  between 
the  parties  for  the  possession,  or  for  the 
sale  of  premises  upon  default;  but  were  in- 
tended    merely   to   control     the     terms   of 
grant,    bargain,    and     sale     generally    em- 
ployed in   mortgages.    Fogarty   v.  Sawyer, 
17  Cal.  .589.     The  provision  of  this  section, 
prohibiting  a  recovery,  has  reference  to  an 
action  at  law,  and  it  necessarily  assumes 
that   the   fact   which   shall   defeat   the   re- 
covery may  be  shown   in  the  very  action 
in  which  the  recovery  is  sought;  if  it  can- 
not   be   thus    shown,    then,    as   to    a    large 
number  of  cases  embraced  within  the  pro- 
visions of  the  statute,  the  purpose  of  the 
legislature     is     defeated;     but     courts     of 
equity  exercise  no  arbitrary  powers;   they 
simply     administer,     in     forms     peculiarly 
their    own,    one    branch    of   the    municipal 
law;  there  must  be  a  right  recognized  by 
the    municipal    law,    before    even    a   court 
of   equity   can    enforce   it;    their   mode   of 
proceeding  was   different;   but  now,   under 
our  system,   there   is  no   difference   in   the 
forms    of    proceeding.     Jackson    v.    Lodge, 
36  Cal.  28. 

Nature  of  mortgage.  The  original  char- 
acter of  mortgages  has  undergone  a  com- 
plete change:  they  have  ceased  to  be 
conveyances,  except  in  form;  they  are  no 
longer  understood  as  contracts  of  purchase 
and  sale  between  the  parties,  but  as  trans- 
actions by  which  a  loan  is  made  on  the 
one  side  and  a  security  is  given  for  its 
1  Fair. — 58 


repayment  on  the  other,  and  default  in 
the  i<a\nient  of  the  money  secured  does 
not  change  their  character;  they  create 
only  a  lien  on  the  land,  which  is  an  inci- 
dent of  the  secured  debt,  and  passes  by  a 
similar  assignment  of  the  debt  (Savings 
and  Loan  Society  v.  McKoon,  120  Cal.  177; 
52  Pac.  305);  and  payment  after  default 
operates  to  discharge  the  lien,  equally  with 
payment  at  maturity  of  the  debt.  Jackson 
V.  Lo.lge,  36  Cal.  28.  This  section  changes 
the  common-law  character  of  the  mort- 
gage, and,  under  it,  the  mortgage  creates 
a  mere  lien  for  the  purjioses  of  security, 
and,  as  in  other  cases  of  lien  upon  real 
property,  can  only  be  enforced  bv  .iudicial 
proceedings,  excejit  by  the  authority  of 
the  owner  of  the  property;  by  virtue  of 
the  mortgage  alone,  the  mortgagee  can 
neither  acquire  the  possession  nor  dispose 
of  the  premises,  but  the  existence  of  the 
mortgage  does  not  j)revent  the  owner  from 
making  an  independent  contract  for  the 
possession,  nor  from  authorizing  a  sale  of 
the  premises,  the  mortgagee  consenting 
thereto,  to  pay  off  the  debt.  Fogarty  v. 
Sawyer,  17  Cal.  589. 

Mortgage  does  not  pass  title.  A  mort- 
gage is  not  a  conveyance,  and  does  not 
pass  title.  Adams  v.  Hopkins,  144  Cal. 
32;  77  Pac.  712.  All  mortgages,  whether 
in  the  usual  form,  or  absolute  conveyances 
on  their  faces,  stand  upon  the  same  foot- 
ing in  the  respect  that  neither  conveys  a 
title  in  fact.  Jackson  v.  Lodge,  36  Cal. 
28.  The  mortgagee  is  not  regarded  as 
ever  having  the  title  of  the  mortgagor  un- 
til judicial  foreclosure  and  sale:  the  title 
remains  with  the  mortgagor,  whether  pos- 
session be  taken  or  otherwise.  .Tackson  v. 
Lodge,  36  Cal.  28;  Johnson  v.  Sherman,  15 
Cal.  287;  76  Am.  Dec.  481. 

Deed  deemed  a  mortgage  when.  A  deed, 
absolute  in  form,  if  intendetl  as  a  mort- 
gage, does  not  transfer  title  as  between 
the  parties  to  it.  Cunningham  v.  Hawkins, 
27  Cal.  603';  Tavlor  v.  McLain,  64  Cal. 
513;  2  Pac.  399;  Healv  v.  O'Brien,  66  Cal. 
517;  6  Pac.  386;  Turner  v.  McDonald,  76 
Cal.  177;  9  Am.  St.  Rep.  189j  18  Pac.  262. 
No  title  passes  to  the  grantee  by  a  deed, 
absolute  in  form,  without  any  defeasance, 
if  the  purpose  of  the  deed  is  to  secure  a 
debt;  and,  in  this  respect,  a  conveyance, 
absolute  on  its  face,  stands  on  the  same 
footing  as  a  conveyance  with  a  defeasance. 
Jackson  v.  Lodge,  36  Cal.  28.  A  deed, 
absolute  on  its  face,  made  to  a  creditor  of 
the  grantor,  as  security  for  a  sum  of 
money  due  from  the  grantor  to  the  grantee, 
in  pursuance  of  an  understanding  that  the 


§745 


ACTIONS  TO  DETERMINE   CONFLICTING  CLAIMS. 


914 


grantee  will  sell  the  land,  pay  off  a  mort- 
gage held  by  a  third  party,  retain  the 
sum  of  money  due  himself,  and  pay  the 
residue  to  the  grantor,  is  a  mortgage,  and 
conveys  no  title  to  the  creditor,  though 
sufficient  to  pass  title  as  between  the  gran- 
tor and  a  purchaser  from  the  grantee  in 
good  faith  and  for  a  valuable  considera- 
tion, without  notice.  Wenzel  v.  Schultz, 
100  Cal.  250;  34  Pac.  69G.  Where  a  deed 
was  intended  as,  and  was  in  fact,  a  mort- 
gage, made  to  a  party  formerly  the  ayent 
of  the  grantor,  but  who  did  not  continue 
as  such  agent  after  the  execution  of  the 
deed,  nor  continue  to  receive  and  disburse 
moneys  and  render  services  subsequently 
to  that  time,  as  was  the  case  previously, 
the  legal  title  does  not  pass  by  the  deed, 
and  subsequent  encumbrancers  or  purchas- 
ers with  notice  acquire  no  rights  as  against 
the  plaintiff.  Leonis  v.  Hammel,  1  Cal. 
App.  39U;  82  Pac.  349. 

Evidence  proving  deed  to  be  a  mortgage. 
Testimony  is  admissible  to  show  that  a 
deed,  absolute  on  its  face,  was  intended  as 
a  mortgage.  Cunningham  v.  Hawkins,  27 
Cal.  603.  Parol  evidence  is  admissible  at 
law,  as  well  as  in  equity,  to  show  that 
a  deed,  absolute  on  its  face,  was  given 
as  security  for  money,  and  is  in  fact  a 
mortgage.  Jackson  v.  Lodge,  36  Cal.  28; 
Gay  V.  Hamilton,  33  Cal.  686.  A  clear 
case  should  be  made,  in  order  to  justify 
a  court  or  jury  in  finding,  upon  parol  tes- 
timony, that  a  deed,  absolute  on  its  face, 
is  a  mortgage.   Hopper  v.  .Tones,  29  Cal.  18. 

Mortgagee's  power  to  sell,  and  right  to 
possession.  The  right  to  dispose  both  of 
the  possession  and  the  estate  follows  neces- 
sarily from  the  ownership  of  the  property; 
this  being  so,  no  valid  objection  can  be 
urged  against  incorporating  the  contract 
and  the  power  in  the  same  instrument  with 
the  mortgage:  they  do  not  become,  in  that 
way,  any  part  of  the  mortgage,  but  are  as 
much  independent  of  it  as  though  con- 
tained in  separate  instruments.  Fogarty 
V.  Sawyer,  17  Cal.  589.  The  power  given 
in  a  mortgage,  "to  proceed  to  sell  in  the 
manner  prescribed  by  law,"  is,  in  sub- 
stance, the  same  as  a  power  to  proceed  to 
pell  by  means  of  an  action  to  foreclose. 
Brickell  v.  Batchelder,  62  Cal.  623.     Where 


the  mortgage  is  in  the  usual  form,  and 
conveys  the  property,  but  provides  that  if 
certain  payments  shall  be  made,  the  instru- 
ment is  to  be  void,  but  if  default  shall 
be  made  in  their  payment,  the  property 
may  be  sold,  until  default  and  a  conse- 
quent foreclosure  and  sale,  the  mortgagee 
has  no  right  to  enter  upon  or  take  }iosses- 
sion  of  the  premises,  and  where  he  does 
so,  he  may  be  ejected,  the  same  as  any 
other  intruder.  Kidd  v.  Teeple,  22  Cal.  255. 
Possession  taken  with  the  consent  of  the 
owner,  or  by  contract  with  him,  may  con- 
fer rights  as  to  third  parties,  but  they 
are  independent  and  distinct  from  any 
rights  springing  from  the  mortgage,  from 
which  they  derive  no  support.  Johnson  v. 
Sherman,  15  Cal.  287';  76  Am.  Dec.  481. 

Deed  of  trust  conveys  title.  A  deed  of 
trust  conveys  the  legal  title:  the  contract 
is,  that  the  party  in  whom  the  debtor  has 
seen  fit  to  vest  the  legal  title  may,  in 
case  of  default,  sell  the  property  and 
transfer  the  legal  title  to  the  purchaser; 
such  is  the  meaning  and  intention  of  the 
contract,  and  there  is  nothing  therein  to 
make  it  invalid,  nor  is  there  any  reason, 
under  this  section,  why  its  provisions 
should  not  be  carried  out.  Bateman  v. 
Burr,  57  Cal.  480. 

Deed  with  defeasance  is  not  mortgage. 
Where  the  plaintiff  borrowed  a  sum  of 
money,  and  to  secure  the  payment  thereof 
made  a  deed  conveying  real  property  to  a 
second  party,  with  the  lender  named  as 
party  of  the  third  part  in  the  deed,  which 
recited  that  it  was  made  to  secure  the 
indebtedness,  and  provided  that  upon  de- 
fault in  payment,  and  on  the  request  of 
the  third  party,  the  party  of  the  second 
part  should  sell  the  premises,  the  instru- 
ment is  not  a  mortgage,  but  a  deed  of 
trust,  and  conferred  a  power  of  sale  upon 
the  party  of  the  second  part.  Bateman  v. 
Burr,  57  Cal.  480. 

CODE  COMMISSIONEES'  NOTE.  It  was 
held  in  Hughes  v.  Davis,  40  Cal.  117,  that  an 
absolute  deed,  though  shown  by  parol  evidence 
to  have  been  intended  as  a  mortgage,  does  con- 
vey the  legal  title.  In  .Tackson  v.  Lodge,  36 
Cal.  28,  upon  a  review  of  all  the  authovitit-s,  the 
reverse  was  held.  .See  also  Civ.  Code,  §5  2883, 
2920,  2924,  and  notes. 


§  745.  When  court  may  grant  injunction ;  during  foreclosure ;  after  sale 
on  execution,  before  conveyance.  The  court  may,  by  injunction,  on  good 
cause  shown,  restrain  the  party  in  possession  from  doing  any  act  to  the  in- 
jury of  real  property  during  the  foreclosure  of  a  mortgage  thereon;  or, 
after  a  sale  on  execution,  before  a  conveyance. 


Injunction,  generally.    Ante,  5§  525-533. 
Receiver.    .Vntc,  §  .004,  subd.  2. 
Waste.     Civ.    Code,  §  2929. 
Foreclosure  of  mortgage.     Ante,  §  726. 
Execution  sales.     Ante,  §§  694  et  seq. 

Legislation  8  745.     1.  Enacted  March  11,  1872} 
re-enactment    of   Practice   Act,  §  261. 


2.  Repeal  by  Stats.  1901,  p.  160;  unconsti- 
tutional.    See  note  ante,  §  5. 

CODE  COMMISSIONERS'  NOTE.  In  Sands 
T.  Pfeiffer,  10  Cal.  258,  it  was  held  that  this 
remedy  was  only  preventive,  and  did  not  ex- 
clude any  other  remedy. 


•915  INJURY   AFTER  SALE — LOCAL  MINLN'G   RULES  AND   CUSTOMS.       §§  74G-748 


§  746.  Damages  may  be  recovered  for  injury  to  the  possession  after  sale 
and  before  delivery  of  possession.  Wlien  n-ul  proptrty  has  been  sold  ou 
execution,  tlie  piiicha.ser  thereof,  or  any  person  who  may  have  succeeded  to 
his  interest,  may,  after  his  estate  becomes  absolute,  recover  damaires  for 
injury  to  the  property  by  the  tenant  in  po.ssession  after  sale,  and  before 
possession  is  delivered  under  the  conveyance. 


tion  of  property,  during  the  perioil  of  an 
unlawful  detention  tht-roof,  may  j)roperly 
he  :twarded  to  the  plaintiff  in  cjectincut. 
Cassiu  V.  Nicholson,  15-1  Cal.  49?";  98  Pac. 
190. 


Lis  pendens.    Ante,  §  409. 

Legislation  «  746.  Enacted  Miirch  11,  1872 
(l)asi'(l  on  I'riictice  Act,  §262),  clianginK  "shall 
have"   to  "has"  in   first  line. 

Damages  in  ejectment.  Resultant  dam- 
Ages  for  the  value  of  the  use  and  occupa- 

§  747.  Action  not  to  be  prejudiced  by  alienation  pending  suit.  An  ac- 
tion for  the  recovery  of  real  property  against  a  person  in  possession  cannot 
be  prejudiced  by  any  alienation  made  by  sucli  person,  either  before  or  after 
the  commencement  of  the  action. 

Legislation  S  747.  Enacted  March  11,  1872; 
re-enactment  of  Practice   Act,  §  '263. 

§  748.  Mining  claims,  actions  concerning,  to  be  governed  by  local  rules. 
In  actions  respecting  mining  claims,  proof  must  be  admitted  of  the  customs, 
usages,  or  regulations  established  and  in  force  at  the  bar  or  diggings  em- 
bracing such  claim;  and  such  customs,  usages,  or  regulations,  when  not  in 
conflict  Avith  the  laws  of  this  state,  must  govern  the  decision  of  the  action. 

manded  by  new  necessities,  by  which  per- 
sons engaged  in  mining  pursuits  were 
governed  in  the  acquisition,  use,   and  for- 


Legislation  S  748.  Enacted  March  11,  1872 
<based  on  Practice  Act,  §  621),  (1)  omitting 
"constitution  and"  b(!£ore  "laws,"  and  (2)  chan- 
ging "shall"   to   "must." 

Construction  of  section.  There  seems  to 
be  implied,  from  the  language  of  this  sec- 
tion, a  permission,  upon  the  part  of  the 
state,  to  the  miner,  to  seek,  whenever  he 
chooses,  in  the  gold-bearing  districts,  for 
the  precious  metals,  and  that  the  state  ex- 
tends to  him  whatever  right  it  has  to  the 
mineral  when  foun<l:  it  is  the  policy  of 
both  the  Federal  and  the  state  govern- 
ments to  reserve  public  lands  containing 
precious  metals  from  settlement  for  agri- 
cultural purposes;  and  the  entry,  for  min- 
ing purposes,  upon  public  lands  already 
settled,  is  not  tortious.  McClintock  v. 
Bryden,  5  Cal.  97;  63  Am.  Dec.  87. 

Possession  proved  how.  In  ascertaining 
the  limits  of  a  mining  possession,  the  same 
common-law  principles  are  to  be  relied 
upon  as  those  which  regulate  the  right  to 
the  possession  of  agricultural  lands,  al- 
though the  indicia  of  possession  are  not 
necessarily  the  same;  the  possession,  in 
such  case,  may  be  y)roved  by  satisfactory 
evidence  of  notorious  acts  of  occupation, 
reference  being  had  to  the  nature  of  the 
lands,  the  uses  to  which  they  can  be  put, 
and  to  the  general  practices  or  customs 
of  the  region  with  respect  to  the  occupa- 
tion of  lands  of  the  particular  character; 
but  the  possession,  however  proved,  being 
established,  the  presumption  of  grant 
arises.  Lux  v.  Haggin,  69  Cal.  255;  10  Pac. 
674. 

Local  usage  and  customs  as  to  mining 
customs.     Local    usages    and    customs,    de- 


feiture  or  loss,  of  mining-ground,  having 
received  the  sanction  of  the  legislature, 
have  become  as  much  a  part  of  the  law  of 
the  state  as  the  common  law  itself,  which 
was  not  adopted  in  a  more  solemn  form. 
When  the  provisions  of  this  section  be- 
came a  part  of  the  laws  of  this  state, 
there  had  sprung  up,  throughout  the 
mining  regions,  local  customs  and  usages, 
by  which  persons  engaged  in  mining  pur- 
suits were  governed  in  the  acquisition 
and  use,  and  forfeiture  or  loss,  of  mining- 
ground  (the  word  "forfeiture"  being  used 
here  in  its  mining-law  sense) ;  these 
customs,  differing  in  different  localities, 
and  varying  according  to  the  character 
of  the  mines,  and  prescribing  the  acts 
by  which  the  right  to  mine  a  particu- 
lar piece  of  ground  could  be  secured,  and 
its  use  and  enjoyment  preserved,  were 
few,  plain  and  simple,  ami  well  under- 
stood by  those  with  whom  they  originated, 
and  well  adapted  to  secure  the  end  de- 
signed to  be  accomplished,  and  were  ade- 
quate to  the  judicial  determination  of  all 
controversies  touching  mining  rights.  Mor- 
ton V.  Solambo  Copper  Mining  Co.,  26  Cal. 
527. 

Proof  of  mining  customs,  usages,  and 
regulations.  A  local  mining  regulation  or 
custom,  adojited  after  the  location  of  a 
claim,  cannot  be  given  in  evidence  to  limit 
the  extent  of  a  claim  previously  locateil; 
nor,  in  order  to  show  reasonableness  of 
extent,    is    evidence    admissible    of    local 


§748 


ACTIONS   TO  DETERMINE   CONFLICTING   CLAIMS. 


916: 


usages  and  customs  in  differeut  counties 
in  the  mineral  regions,  varAdng  from  each 
other  as  to  the  size  of  claims;  a  general 
uniform  custom,  as  to  size,  should  be 
proved,  if  one  exist;  but  where  there  are 
no  local  customs  or  regulations  in  force  in 
the  district  where  the  claim  is  located,  at 
the  time  of  its  location,  general  customs 
then  in  force  are  admissible  in  evidence 
upon  the  question  of  reasonableness  of 
extent.  Table  Mountain  Tunnel  Co.  v. 
Stranahan,  31  Cal.  387.  The  customs, 
usages,  and  regulations  accepted  by  the 
miners  of  a  particular  district  are  binding 
only  as  to  possessor}'  rights  within  that 
district,  and  thev  must  be  proved  as  facts. 
Lux  V.  Haggin,*69  Cal.  255;  10  Pac.  674. 
No  distinction  is  made,  by  this  statute, 
between  the  effect  of  a  "custom"  or 
"usage,"  the  proof  of  which  must  rest  iu 
parol,  and  a  "regulation,"  which  may  be 
adopted  at  a  miners'  meeting  and  embodied 
in  a  written  local  law.  Harvey  v.  Ryan, 
42  Cal.  626. 

Abandonment  pleaded  and  proved  how. 
Abandonment  of  a  mining  claim  need  not 
be  especially  pleaded,  but  may  be  given  in 
evidence  under  a  denial  of  title,  and  maj' 
be  proved  by  the  plaintiff  in  an  action  to 
quiet  title,  to  rebut  a  title  set  up  by  the 
defendant  under  an  earlier  location;  if  the 
intention  to  abandon  has  been  formed  and 
once  acted  upon,  the  abandonment  is  as 
absolute,  if  it  exists  for  a  moment,  as 
though  it  continued  for  years.  Trevaskis 
V.  Peard,  111  Cal.  599;  44  Pac.  246. 

Forfeiture  proved  how.  Forfeiture  of  a 
mining  claim  cannot  be  established,  except 
upon  clear  and  convincing  proof  of  the 
failure  of  the  owner  to  perform  the  work 
or  to  make  the  improvements  to  the 
amount  required  bj'  law.  Goldberg  v. 
Bruschi,  146  Cal.  708;  81  Pac.  23. 

Sale  proved  how.  The  entry  of  the  sale 
of  a  mining  claim,  made  by  the  recorder 
of  a  mining  district,  in  a  book  kept  for 
the  record  and  transfers  of  claims,  and 
authorized  by  the  mining  customs  and 
laws  in  force  in  the  district  w^here  the 
claim  is  situated,  is  admissible  in  evidence 
to  prove  the  sale  of  the  claim,  unless  ob- 
jected to:  such  entry  is  at  least  secondary 
evidence  of  the  sale.  St.  John  v.  Kidd,  26 
Cal.  263. 

Terms  defined.  The  term  "forfeiture," 
as  used  in  our  mining  customs  and  codes, 
means  the  loss  of  a  right,  previously 
acquired,  to  mine  a  particular  piece  of 
ground,  by  neglect  or  failure  to  comply 
with  the  rules  and  regulations  of  the  bar  or 
diggings  in  which  the  ground  is  situated; 
and  "abandonment,"  in  its  common-law 
sense,  is  merely  a  question  of  intention, 
and  takes  place  when  the  ground  is  left 
by  the  locator,  without  any  intention 
of  returjiing  or  making  any  future  use  of 
it,  inde])endently  of  any  mining  rule  or 
regulation.     A   right   to   hold  and   work   a 


mining  claim,  when  acquired,  may  be  lost 
by  a  failure  or  neglect  to  comply  vrith 
the  rules  and  regulations  of  the  miners, 
relative  to  the  acquisition  and  tenure  of 
claims,  in  force  in  the  bar  or  diggings 
where  the  claim  is  located;  and  if  such 
rules  and  regulations  are  not  complied 
with  by  those  holding  claims  in  the  dis- 
trict, the  ground  becomes  once  more  open 
to  the  occupation  of  the  next  comer.  St. 
John  v.  Kidd,  26  Cal.  263. 

CODE  COMMISSIONERS'  NOTE.      The  power 

of  miiu-rs  tu  make  rules  and  regulations  was  sus- 
tained in  English  v.  Johnson,  17  Cal.  107;  76 
Am.  Dec.  574;  see  also  Pralus  v.  Jefferson  Gold 
etc.  Mining  Co.,  34  Cal.  558;  Pralus  v.  Pacific 
Gold  etc.  Mining  Co.,  35  Cal.  30.  The  act  of 
1859  (chap.  97),  respecting  the  mines;  the 
Practice  Act  of  1851  (§621),  relative  to  proof 
in  actions  respecting  mining  claims;  the  act  of 
1852,  relative  to  possessory  actions,  commented 
on,  and  the  conclusion  reached,  that,  so  far  as 
they  touched  the  question  of  a  license  from  the 
state  to  mine,  they  relate  to  public  lands  alone. 
Biddle  Boggs  v.  Merced  Mining  Co.,  14  Cal. 
279.  Where  parol  evidence  is  given  of  certain 
regulations  of  miners,  and  it  does  not  appear 
until  the  cross-examination  of  the  witness  that 
the  regulations  were  in  writing,  the  course  to 
pursue,  if  any  objection  is  taken  to  the  evi- 
dence, is  by  motion  to  strike  it  out.  Kiler  v. 
Kimbal,  10*  Cal.  267.  Mining  laws  are  to  be 
construed  by  the  court,  and  the  question  whether 
by  such  laws  a  forfeiture  had  accrued,  is  a 
question  of  law,  and  cannot  be  properly  sub- 
mitted to  a  jury.  Fairbanks  v.  Woodhouse,  6 
Cal.  433.  Where  a  party's  rights  to  a  mining 
claim  are  fi.xed  by  the  rules  of  property,  part 
of  the  general  law  of  the  land,  they  cannot  be 
divested  by  any  mere  neighborhood  custom  or 
regulation.'  Waring  v.  Crow,  11  Cal.  366.  The 
quantity  of  ground  a  miner  can  claim  by  location 
or  prior  appropriation,  for  mining  purposes,  may 
be  limited  by  the  mining  rules  of  the  district. 
Prosser  v.  Parks,  18  Cal.  47;  English  v.  John- 
son, 17  Cal.  107;  76  Am.  Dec.  574.  But  the 
quantity  he  can  acquire  bv  purchase  cannot  be 
limited.  Prosser  v.  Parks,  18  Cal.  47.  The  fact 
that  mining  laws  and  regulations  were  passed  on 
a  different  day  from  that  advertised  for  a  meet- 
ing of  miners,  does  not  invalidate  them.  The 
court  will  not  inquire  into  the  regularity  of  the 
modes  in  which  these  local  legislatures  or  pri- 
mary assemblages  act.  They  must  be  the  judges 
of  their  own  proceedings.  It  is  sufficient  that 
the  miners  agree,  whether  in  public  meeting  or 
after  due  notice,  upon  their  local  laws,  and 
that  these  are  recognized  as  the  rules  of  the 
vicinage,  unless  fraud  be  shown  or  other  like 
cause  for  rejecting  the  laws.  Gore  v.  McBrayer, 
1.8  Cal.  582.  If  a  mining  custom  allows  one  to 
locate  a  lode  or  vein  for  himself  and  others,  by 
placing  thereon  a  notice,  with  his  own  name 
and  the  names  of  the  others  appended  thereto, 
designating  the  extent  of  his  claim;  and  one  per- 
son thus  locates  a  lode  for  himself  and  several 
others,  some  of  whom  have  no  knowledge  of  the 
location,  the  persons  who  have  no  knowledge 
of  the  location  by  the  same  become  tenants  in 
common  with  the  locator  and  the  others,  and  can- 
not be  divested  of  their  interest  by  the  locators 
afterwards  tearing  down  the  notice  and  posting 
up  another,  omitting  their  names,  unless  this  is 
done  with  their  knowledge  and  consent.  Morton 
V.  Solambo  Copper  Mining  Co.,  26  Cal.  527;  Gore 
v.  McBrayer,  18  Cal.  582.  A  local  mining  regu- 
lation or  custom,  adopted  after  the  location  of 
a  mine,  cannot  limit  the  extent  of  a  claim 
previously  located.  Table  Mountain  Tunnel  Co. 
V.  Stranahan,  31  Cal.  387.  Where  the  original 
records  have  been  destroyed  by  fire,  and  the 
miners,  by  a  resolution  subsequently  passed,  re- 
quiring the  claims  to  be  rerecorded  in  a  new 
look,  such  book  is  admissible  in  evidence  in 
the  trial  of  an  action  for  a  mining  claim,  to- 
show    llial    the    rules    of    the    vicinage    have    been. 


S17  UNKNOWN  CLAIMANTS — LIS  PENDENS — SERVICE.  §  749 

complied   with.     McGarrity  v.   Byington,    12   Cal.  a    mining    location,    a    general    custom,    existing 

426.      Plaintiffs    having    ofTercd    in    evidence    the  anterior    to    the    location,    may    be    given    in    evi- 

l)ook    whore    mining    claims   are    recorded    accord-  deneo.    Tahio  Mountain  Tunnel  Co.  v.  Stranahan, 

ing  to  miiiiiipc   rules,   to  .show   title   in   the   original  20    Cal.     198.      Controversies    affecting    a    mining 

locators,    then    olTercd    the    entry    in    that    book    of  right     must     be     solved     and     determined     by     the 

the  transfer  of  said  claims  from  such   locators   to  customs    and    usages    of   the    bar   or   diggingB   em- 

the   lessors    of   plaintiffs,    as    proof   of   the    fact   of  bracing  the  claim  to  which  such   right  is  asserted 

transfer.      The    court    properly    excluded    this    en-  or  denied,    whether  such   customs   and   usages  are 

try  until   proof   aliunde   of  the  transfer.    Attwood  written    or    unwritten.     Morton    v.    Solambo    Cop- 

V.   Fricot,    17   Cal.    37;    70    Am.    Dec.    5G7.      Upon  per  Mining  Co.,  26  Cal.  527. 
the    question    of   reasonableness   of    the    extent    of 

§  749.     [Related  to  mode  of  service  in  actions  relating  to  real  property. 

Repealed.  | 

Legislation   3   749.     1.   Added  by   Stats.   1891,  the  late  amendments  to  §  412  of  the  Code  of  Civil 

p.    "JTH     (erroneously    numbered     149),    approved  Procedure.      Moreover,     there     are     two     sections 

March  .Tl,  1891.  749    in    the    code,    one    enacted    in    1891    and    the 

2.  Repeal  by  Stats.  1901,  p.  160;  unconsti-  other  in  1900  [1901).  They  do  not  supersede 
tutional.    See  note  ante,  §  .5.  each    other[,l     under    the    principle    of    Ex    parte 

3.  Repealed  by  Stats.  1907,  p.  686;  the  code  Ruffin,  119  Cal.  487.  The  superfluous  one  is  here 
commissioner  saying,    "This   section   is  hereby   re-  repealed,   leaving   the  other   in   force." 

pealed   because  it  has  been   made   superfluous   by 

§  749.  Determination  of  adverse  claims  to  real  property.  Unknown 
defendants.  Lis  pendens.  An  action  may  be  broujiht  to  determine  the  ad- 
verse claims  to  and  clouds  ujion  title  to  real  property  by  a  person  who,  by 
himself  or  by  himself  and  his  predecessors  in  interest,  has  been  in  the  actual, 
exclusive  and  adverse  possession  of  such  property  continuously  for  tAventy 
years  prior  to  the  filinpj  of  the  complaint,  claiming  to  own  the  same  in  fee 
against  the  whole  M'orld,  and  who  has  paid  all  taxes  of  every  kind  levied 
or  assessed  against  the  property  during  the  period  of  five  years  contimi- 
onsly  next  preceding  the  filing  of  the  complaint.  Said  action  .shall  be  com- 
menced by  the  filing  of  a  verified  complaint  averring  the  matters  above 
enumerated.  The  said  complaint  may  include  as  defendants  in  such  action, 
in  addition  to  such  persons  as  appear  of  record  to  have,  all  other  persons 
who  are  known  to  the  plaintiff  to  have,  some  claim  or  cloud  on  the  lands 
described  in  the  complaint  adverse  to  plaintiff's  ownership,  or  other  per- 
sons unknown  claiming  any  right,  interest  or  lien  in  such  lands,  or  cloud 
upon  the  title  of  plaintiff  thereto,  and  the  plaintiff  may  describe  such 
unknown  defendants  in  the  complaint  as  follows:  "also  all  other  persons 
unknown,  claiming  any  right,  title,  estate,  lien  or  interest  in  the  real  prop- 
erty described  in  the  complaint  adverse  to  plaintiff's  ownership,  or  any 
cloud  upon  plaintiff's  title  thereto."  Within  ten  days  after  the  filing  of  the 
complaint,  plaintiff  shall  file,  or  cause  to  be  filed,  in  the  office  of  the  county 
recorder  of  the  county  where  the  property  is  situated,  a  notice  of  the  pen- 
dency of  the  action,  containing  the  matters  required  by  section  four  hun- 
dred and  nine  of  this  code. 

Legislation  §  749.      1.  Added  by  Stats.  1901,  ?.   Amended  by  Stats.  1903,  p.  104.    See  ante, 

p.  .)79,  and  then  read:   "If,  in  an  action   to  deter-        Legislation  §  749. 

mine  an  adver.se  claim  to  real  property,   it  ap-  Construction  of  sectlon.     Whether  or  not 

pears   by   a   verified   complaint    that    the   plaintift,  a.-          ■                           ,.               "^•-"'-.  ui 

or   the   plaintiff   and   his   predecessors  in    interest,  ^.^    action    is    a   proceeding    under   this    sec- 

have   been    for    twenty   years    prior    to    filing    such  tion     and     §§  750    and    751,    post,    is    to    be 

"rsfilr J'rJ,K.-.';  ^'^^  ^r'lh^fr 'otrri^ht^ltr  determined  from  the  terms  of  the  sections. 

ing  and  claiming  the  same  adversely  to  all  other  ^os   Angeles  V.  Los  Angeles  1' arming  etc. 

persons,    and    that,    in    addition    to    the    defendant  Co.,  150  (.'al.  647;   S9  Pac.  615. 

named  in  the  complaint,  there  is  or  may  be  some  Service  bv  nnbliratinn     pflFprt  nf       In   nn 

other    person    or    per.sons    whose    names    are    un-  s>ervice   oy  puoiicauon,   encct  01.      In   an 

T<nown  to  him,  who  claim  some  estate  or   interest  action    relating   to    real   projiertv,    .siininions 

in  such  property  adversely  to  him,  the  clerk  must  mav     be     served     bv     publication,     but     the 

issue  a   summons  which  must  contain   the  matters  -liiria,i;,.f;r>T.    o,i«,,;^A  i   ;„  ;.,    ..^.,,      Ar.,^,..-.i.  v 

required  by  section  four  hundred  and  seven,  and,  .lunsdictiou  acquired  is  in  rem.    Murra>   v. 

•in  addition  thereto,  a  description  of  the  property,  Murray,     115     Cal.     266;     56    Am.     St.     Rep. 

and  a  direction   that  all  persons   claiming  any  es-  97;  37  L.  R.  A.  626*  47  Pac.  37. 

tate    or   interest    therein,    appear   and    answer    the  QiiV.e'H+ii+I^' cT^tJ^^^  r,^  t-'^  ,,l,u-^^-,r~n  /.lo-lm 

complaint   within   thirty   days   after   the   service  Substituted  ser^/ice  as  to  unknown  claim- 

ithereof."  antS.      Courts   lia\e  jurisdiction    to   declare 


§  750  ACTIONS  TO  DETERMINE  CONFLICTING  CLAIMS.  918'- 

title  to  real  property  within  the  state  to  Co.,  7  Cal.  App.  649;  95  Pae.  668.  A  com- 
be vested  in  the  plaintiff  as  against  other  plaint  to  determine  adverse  claims  to- 
claimants,  known  or  unknown,  upon  sub-  realty,  in  the  usual  form,  alleging  that 
stituted  service:  unknown  claimants  can-  the  title  to  the  land  is  in  the  plaintiff,  and 
not  be  dealt  with  by  personal  service.  that  the  defendants,  without  right,  make 
Title  etc.  Eestoration  to.  v.  Kerrigan,  150  some  claim  thereto  adversely  to  the  plain- 
Cal.  2S9;  119  Am.  St.  Eep.  199;  8  L.  E.  A.  tiff's  title  and  estate,  but  which  does  not 
(X.  S.)  692;  88  Pac.  356.  have  the  necessary  allegations  required  by 
Estoppel  against  defendant  voluntarily  this  section  and  §§  750  and  751,  post,  suffi- 
appearing.  A  defendant  sued  under  a  ciently  states  a  cause  of  action  under- 
fictitious  name,  who  appears  and  answers,  §  738,  ante,  but  not  under  this  section  and 
is  bound  by  the  judgment,  although  his  §§  750,  751,  post.  Los  Angeles  v.  Los  An- 
true  name  was  never  inserted  in  the  rec-  geles  Farming  etc.  Co.,  150  Cal.  647;  89' 
ord;   and  one  who  voluntarily  appears   in  Pac.  615. 

an    action    to    quiet   title   cannot    complain  ^^^,.^^  ^^  ^^.^^  ^.^j^  ^^^.^^^  unknown  owners, 

that  a  notice  of  lis  pendens  was  not  filed;  gee  note  87  Am.  St.  Rep.  366. 

and  such  omission  cannot  affect  the  court's  Whether   ancestor   must  have   -been   in   posses- 

.    T-    ,  ■                   ,■<           \  ■     J.        i-j.         £  ii  „  sion  to  give  heirs  the  henefit  of  his  color  of  title., 

jurisdiction  over  the  subject-matter  of  the  see\ote  42  L  R.  A.  (N.  S.)  403. 
action.    Blackburn  v.  Bucksport  etc.  _E.  E. 

§  750.     Sumnions ;  service,  and  proof  of  service.     Publication  of  summons. 

Within  one  year  after  the  filing  of  the  complaint,  as  required  by  the  pre- 
ceding section,  a  summons  must  be  issued,  -which  shall  contain  the  matters 
required  by  section  four  hundred  and  seven  of  this  code,  and  in  addition  a 
description  of  the  property  and  a  statement  of  the  object  of  the  action.  In 
said  summons  the  said  unknown  defendants  shall  be  designated  as  in  the 
complaint.  Within  thirty  days  after  the  issuance  of  the  summons,  the  plain- 
tiff shall  post  or  cause  to  be  posted  a  copy  thereof  in  a  conspicuous  place  on 
the  property.  All  defendants  residing  in  the  state  of  California,  w^hose- 
place  of  residence  is  knowm  to  the  plaintiff,  shall  be  served  personally. 
After  service  on  all  such  defendants  has  been  made,  the  plaintiff,  or  his 
agent,  or  attorney,  shall  make  and  file  an  affidavit  wherein  there  shall  b& 
stated  the  names  of  the  defendants  who  have  been  served  personally,  the 
names  of  the  defendants  who  reside  out  of  the  state  and  their  places  of  resi- 
dence, if  known  to  the  plaintiff,  and  the  names  of  the  defendants  residing 
in  or  out  of  the  state  whose  place  of  residence  is  unknown  to  the  plaintiff, 
and  thereupon  the  court  or  a  judge  thereof  shall  make  an  order  directing 
the  said  summons  to  be  served  upon  the  defendants  residing  out  of  the 
state,  whose  place  of  residence  is  known  to  the  plaintiff  and  upon  the 
defendants  residing  in  or  out  of  the  state,  whose  place  of  residence  is  un- 
known to  the  plaintiff,  and  upon  all  the  unknown  defendants  as  stated  in 
the  complaint  and  summons,  by  publication  in  some  newspaper  of  general 
circulation  printed  and  published  in  the  county  Avhere  the  property  is  situ- 
ated, and  if  there  be  no  such  paper  in  such  county,  then  in  some  ad.joining 
county,  to  be  designated  b}'  the  court  or  judge  thereof,  which  publication; 
shall  be  for  once  a  week  for  two  successive  months.  A  copy  of  the  sum- 
mons and  complaint,  within  ten  days  after  the  making  of  said  order,  prop- 
erly addressed  and  with  the  postage  thereon  fully  prepaid,  shall  be  mailed 
to  each  of  the  defendants  who  reside  out  of  the  state,  at  their  place  of  resi- 
dence, if  known,  and  also  to  the  defendants  residing  in  or  out  of  the  state 
whose  place  of  residence  is  unknown  to  plaintiff,  addressed  to  them  at  the 
county  seat  of  the  county  where  the  action  is  commenced.  All  such  un- 
known persons  so  served  sliall  have  the  same  rights  as  are  provided  by  law 
in  cases  of  all  other  defendants  named,  upon  whom  service  is  made  by  pub- 
lication, or  personally,  and  the  action  shall  proceed  against  such  unknown. 


919 


JUDGMENT — TO  ACCORD  WITH  EVIDENCE — RExMEDY  CUMULATIVE.       §  751 


persons  in  the  same  manner  as  a^'ainst  tlie  defendants  who  are  named  npon 
whom  service  is  made  by  publication  or  personally  and  with  like  effect; 
and  any  such  unknown  person  who  has  or  claims  to  have  any  right,  title, 
estate,  lien  or  interest  in  the  said  property,  or  cloud  on  the  title  thereto, 
adverse  to  plaintiff,  at  the  time  of  the  commcnccniciit  of  the  action,  who 
has  been  duly  served  as  aforesaid,  and  any  one  claiming  under  him,  shall  be 
concluded  by  the  judgment  in  such  action  as  effectually  as  if  the  action  was 
brought  against  the  said  person  l)y  his  or  her  name  and  personal  service  of 
process  was  obtained,  notwithstanding  any  such  unknown  person  may  be 
under  legal  disability.  Service  shall  be  deemed  complete  upon  the  com- 
pletion of  the  publication. 

Publication  of  summons.    See  ante,  §  412.  property,  and  bv  publication  for  the  time  and  in 

Legislation  8  750.      1.  Added  bv  Stats.   190t,  ^"j,^,  "^u^ZL'^^^lvTu'^t''^    f^''"".^''^'   hundred 

p.    579,    and   then   read:    "The   court,   at    anv   time  i'hL '    '.^ ''•    „^\"^.rf  •^*^'   ,1°    ^^^    defendants 

after    the    issuing    of    the    summons   mentioned    in  Z^^Z,n^ZZiht.XV,!^    .n    the    complain       the 

..  J'  '^,'  1  7       .1    »   ■.  summfjns  must   be  served   as     n  other  cases, 

the  preceding  section,  may  make  an   order  that  g.   Amendi'd  by  Stats.  1903.  p.  105 

be  served  as  against   all   unknown  owners  and   all  '  ^ 

persons   not    named   in    the    complaint   who    claim  Jurisdiction  upon  constructive   service   of   pro- 

any  estate  or  interest  in  the  property,  by  posting  cess    against    a    non-resident   as   to    lands    within 

a    copy   thereof   in   a    conspicuous   place   on    such  state.    See  note  29  L.  K.  \.  (N.  S.)  625. 

§  751.  Judg-ment  must  not  be  entered  by  default.  When  entered,  is  con- 
clusive. Remedy  is  cumulative.  When  the  summons  has  been  served  as 
provided  in  the  preceding  section  and  the  time  for  answering  has  expired, 
the  court  shall  proceed  to  hear  the  case  as  in  other  cases  and  shall  have 
jurisdiction  to  examine  into  and  determine  the  legality  of  plaintiff's  title 
and  of  the  title  and  claim  of  all  the  defendants  and  of  all  unknown  persons, 
and  to  that  end  must  not  enter  any  judgment  by  default,  but  must  in  all 
cases  require  evidence  of  plaintift"s  title  and  possession  and  hear  such  evi- 
dence as  maj^  be  offered  respecting  the  claims  and  title  of  any  of  the  defend- 
ants and  must  thereafter  direct  judgment  to  be  entered  in  accordance  with 
the  evidence  and  the  law.  The  court  before  proceeding  to  hear  the  case 
must  require  proof  to  be  made  that  the  summons  has  been  served  and 
posted  as  hereinbefore  directed  and  that  the  reciuired  notice  of  pendency 
of  action  has  been  filed.  The  judgment  after  it  has  become  final  is  con- 
clusive against  all  the  persons  named  in  the  summons  and  complaint  who 
have  been  served  and  against  all  unknown  persons  as  stated  in  the  com- 
plaint and  summons  who  have  been  served  by  publication,  but  shall  not  be 
conclusive  against  the  state  of  California  or  the  United  States.  Said  judg- 
ment shall  have  the  effect  of  a  judgment  in  rem  except  as  against  the  state 
of  California  and  the  United  States;  and  provided  further,  that  the  said 
judgment  shall  not  bind  or  be  conclusive  against  any  person  claiming  any 
estate,  title,  right,  possession  or  lien  to  the  property  under  the  plaintiff  or 
his  predecessors  in  interest,  which  claim,  lien,  estate  or  right  of  possession 
has  arisen  or  been  created  by  the  plaintiff  or  his  predecessors  in  interest 
within  twenty  years  prior  to  the  filing  of  the  complaint.  The  remedy  pro- 
vided in  this  and  the  two  preceding  sections  shall  be  construed  as  cumu- 
lative and  not  exclusive  of  any  other  remedy,  form  or  right  of  action  or 
proceeding  noAv  allowed  by  law. 

Decrees    affecting   realty,   to   be   recorded.     See  jurisdiction    to    examine    into    and    determine    the 

Pol.  Code,  §  4134.  legality    of    plaintiff's    title    and    of    the    title    and 

claim  of   all  unknown    claimants   and  of  all   other 

Legislation  §  751.      1.   Added  by   Stats.    1901,  persons,  and  to  that  end  must  not  enter  any  judg- 

p."579,  and  then  read:   "When  summons  has  l)een  ment  by   default,    but   must,    in   all   cases,    require 

served   as   provided   in    the   preceding   section    and  evidence    of    the    plaintiff's    title    and    posses.sion 

the  time  for  answering  has  expired,  the  court  has  and  hear  such  evidence  as  may  be  offered  respect- 


§752 


ACTIONS   FOR   PARTITION   OF   REAL   PROPERTY. 


920 


ing  the  claim  and  title  of  any  other  person  and 
must  thereafter  direct  judgment  to  be  entered  in 
accordance  with  the  evidence.  The  judgment 
wlien  entered  is  conclusive  against  all  the  parties 
named  in  the  summons  and  upon  whom  it  has 
been  served,  and  also  against  all  unknown  claim- 
ants and  all  other  persons,  other  than  this  state 
or  the   United  States,  and  excepting  persons  whose 


title  or  estate  is  disclosed  by  the  records  in  the 
office  of  the  county  recorder  of  the  county  wherein 
the  property  is  situated,  and  who  have  not  been 
made  parties  to  the  action." 

3.   Amended  by  Stats.  1903,  p.  106. 

Judgment  in  suit  to  q,uiet  title.    See  note  1  Am. 
St.  Rep.  265. 


CHAPTER  lY. 

ACTIONS    FOE    PARTITION    OF    REAL    PROPERTY. 


§  752.     Who  may  bring  actions  for  partition.  §  777. 

§  753.     Interests  of  all  parties  must  be  set  forth 

in  the  complaint.  §  778. 

§  754.     Lienholders    not    of    record    need    not    be 

made  parties.  §  779. 

§  755.     Plaintiff  must  file  notice  of  lis  pendens.  §  780. 

I  756.     Summons.      To   whom   directed,   and   must         §  781. 

contain  what. 
§  757.     Unknown  parties  may   be   served  by  pub-         §  782. 

lication. 
§  758.     Answer  of  defendants.      What  to  contain.         §  783. 
1  759.     Rights  of  all  parties  may  be  put  in  issue         §  784. 

and   determined  in  action. 
§760.     Partial  partition. 
I  761.     Rights     of     lienholders.      Appointment     of         §  785. 

referee. 
§  762.     Lienholders    must    be    notified    to    appear         §  786. 

before  the  referee  appointed. 
§  763.     Partition      of     real      property.      Referees.         §  787. 

In  incorporated   city.      Action   of  court. 

Sale.      Deed.      In  case  of  death  of  party.         §  788. 

Attorney's  fees. 
§  764.     Partition   must   be   according  to   rights   of 

parties.      Sale    of    undivided    interests.         §  789. 

xVllotment  of  shares  of  each  party. 
§  765.     Referees    must    make    a    report    of    their         §  790. 

proceedings. 
§  766.     Court    may    confirm,    etc.,    report.      Judg- 
ment binding   on   whom.  §  791. 
§  767.     Judgment   not   to   affect   tenants   for  years         §  792. 

to  the  whole  property. 
§  768.     Expenses  of  partition  must  be  apportioned 

among  the  parties.  §  793. 

§  769.     A    lien    on   an   undivided    interest    of    any 

party    is    a    charge    only    on    the    share         §  794. 

assigned  to  such  party. 
§  770.     Estate    for    life    or   years    may    be    set    off 

in  a  part  of  the  property  not  sold,  when         §  795. 

not  all  sold. 
§  771.     Application  of  proceeds  of  sale  of  encum- 
bered property.  §  796. 
§  772.     Party    holding    other    securities    may    be 

required  first  to  exhaust  them.  §  797. 

§  773.     Proceeds  of  sale,  disposition  of. 
§  774.     When  paid  into  court,   cause  may  be  con-         §  798. 

tinned    for    determination    of    claims    of         §  799. 

parties. 
§  775.     Sales   by   referees   may  be  public   or  pri-        §  800. 

vate.  §  801. 

§  776.     Court  must  direct  terms  of  sale  or  credit. 


Referees  may  take  securities  for  pur- 
chase-money. 

Tenant  whose  estate  has  been  sold  shall 
receive  compensation. 

Court  may  fix  such  compensation. 

Court  must  protect  tenants  unknown. 

Court  must  ascertain  and  secure  the  value 
of  future  contingent  or  vested  interests. 

Terms  of  sale  must  be  made  known  at 
the  time.       Lots  must  be  sold  separately. 

Who  may  not  be  purchasers. 

Referees  must  make  report  of  sale  to 
court.  Confirmation  or  rejection  of 
sale. 

If  sale  confirmed,  order  must  be  made  to 
execute  conveyances. 

Proceeding  if  a  lienholder  becomes  a  pur- 
chaser. 

Conveyances  must  be  recorded,  and  will 
be  a  bar  against  parties. 

Proceeds  of  sale  belonging  to  parties  un- 
known must  be  invested  for  their  bene- 
fit. 

Investment  must  be  made  in  the  name  of 
the  clerk  of  the  county. 

When  the  interests  of  the  parties  are 
ascertained,  securities  must  be  taken 
in  their  names. 

Duties  of  the  clerk  making  investments. 

When  unequal  partition  is  ordered,  com- 
pensation may  be  adjudged  in  certain 
cases. 

The  share  of  an  infant  may  be  paid  to 
his  guardian. 

The  guardian  of  an  insane  person  may 
receive  the  proceeds  of  such  party's  in- 
terest. 

Guardian  may  consent  to  partition  with- 
out action,  and  execute  releases.  [Re- 
pealed. ] 

Costs  of  partition  a  lien  upon  shares  of 
parceners. 

Court,  by  consent,  may  appoint  single 
referee.      [Repealed.] 

Apportionment  of  expenses  of  litigation. 

Abstract  of  title  in  action  for  partition. 
When  cost  of,  allowed. 

Abstract,  how  made  and  verified. 

Interest  allowed  on  disbursements  made 
under  direction  of  the  court. 


§  752.  Who  may  bring  actions  for  partition.  When  several  co-tenants 
hold  and  are  in  possession  of  real  property  as  parceners,  joint  tenants,  or 
tenants  in  common,  in  which  one  or  more  of  them  have  an  estate  of  inheri- 
tance, or  for  life  or  lives,  or  for  years,  an  action  may  be  brought  by  one 
or  more  of  such  persons  for  a  partition  thereof,  according  to  the  respective 
rights  of  the  persons  interested  therein,  and  for  a  sale  of  such  property, 
or  a  part  thereof,  if  it  appear  that  a  partition  cannot  be  made  without 
great  prejudice  to  the  owners. 

Partition  of  dominant  tenements.     Easements.  Construction   Of   section.      The    operation 

Civ.  Code,  S  807.  ^  .i  ,•  ^  ,•.  ■  ,  ^   ^i 

Intervention.    Ante,  §  387.  °*  ^'^'^  action  or  partition,  as  known  at  the 

Legl.sJaticn  8  752.    l!  Enacted  March  11,  1873;  common     law,    has    been    greatly   enlarged, 

re-enactment  of  Practice  Act,  §  264,   as  amended  Buhrmeistcr   V.   Buhrmeister,   10   Cal.  App. 

by  Stats.  1865-66    p.  704  392-    io2  Pac.   221.     The  whole  scope   and 

3.    Amendment   by    Stats.    1901,    p.    160;    un-  ,        '         „    .,  ...  ,    ..  ^      ^, 

constitutional.    See  note  ante,  §  5.  '  tenor  or  the  statute  relating  to  the  parti- 


921 


PURPOSE  OF  AND  WHO   MAY  BRING  ACTION. 


§  752 


tion  of  lanils  show  that  the  intention  was 
to  make  the  oue  judf^ment  of  jiartition 
final  and  eonchisivc  on  all  jiersons  inter- 
cstetl  in  the  property,  or  any  part  of  it, 
of  whom  the  court  coiiM  acquire  jurisdic- 
tion; such  actions,  though  rejjulated  to  a 
great  extent  by  the  statute,  i)artake  more 
fully  of  the  i)rinciples  and  rules  of  equity 
than  those  of  law,  both  in  respect  to  the 
mode  of  ])roeedure  prescribed  and  the 
remedies  provided.  Gates  v.  Salmon,  35 
Cal.  57();  95  Am.  Dec.  139.  There  is  noth- 
ing in  the  law  that  requires  the  whole  of 
a  Mexican  grant  to  be  included  in  a  jiarti- 
tion suit:  all  that  is  required  is,  that  the 
land  sought  to  be  partitioned  comes  within 
the  description  given  in  this  section. 
Adams  v.  Hopkins,  144  Cal.  19;  77  Pac. 
712;  G9  Pac.  228. 

Purpose  of  proceeding.  The  ])urpose  of 
an  action  for  partition  is  to  enable  the 
co-tenants  to  enjoy  the  possession  in  sev- 
eralty, and  not  to  be  compelled  to  submit 
to  joint  possession.  Mills  v.  Stump,  20 
Cal.'  App.  84;  128  Pac.  349.  The  provision 
of  the  code  being  that  the  title  of  the  re- 
spective parties  of  an_y  portion  of  the  land 
may  be  determined  in  an  action  of  parti- 
tion, there  is  no  reason  wh}^  the  deter- 
mination should  not  be  as  conclusive  as  it 
would  be  if  made  in  an  action  brought 
for  the  sole  purpose  of  its  determination. 
Martin  v.  Walker,  58  Cal.  590.  The  action 
of  Jiartition  was  not  intended  to  try  the 
title  to  the  land,  and  where  possession  can- 
not be  effected  as  the  result  of  the  parti- 
tion, there  is  no  necessity  for  making  it. 
Mills  V.  Stump,  20  Cal.  App.  84;  128  Pac. 
349.  A  proceeding  in  jiartition  answers 
the  double  purpose  of  dividing  the  land 
and  settling  the  title;  and  the  mere  fact 
of  an  adverse  holding  by  the  defendant 
constitutes  no  objection  to  the  proceeding. 
Martin  v.  Walker^  58  Cal.  590. 

Jurisdiction.  The  probate  court  has  no 
jurisdiction  to  make  partition  of  real  es- 
tate, except  in  the  course  of  the  settlement 
of  the  estates  of  deceased  persons,  and  for 
the  purpose  of  distribution  to  the  heirs  or 
devisees  of  such  estates.  Eiehardson  v. 
Loupe,  80  Cal.  490;  22  Pac.  227.  Where 
persons  are  tenants  in  common  with  an 
estate,  or  its  distributees,  and  they  do  not 
deraign  their  title  through  the  estate,  the 
superior  court  only  has  jurisdiction  to 
make  jiartition.  Richardson  v.  Loupe,  80 
Cal.  49(1;  22  Pac.  227.  '    . 

Who  may  bring:  action.  Only  the  co- 
tenants  mentioned  in  this  section,  who 
hold  and  are  in  j)ossession,  can  bring  an 
action  for  partition,  and  only  the  real  prop- 
erty thus  held  by  them  can  be  partitioned; 
the  co-tenancy  is  that  which  gives  the 
right  to  a  partition;  several  persons  to- 
gether may  own  a  thing  without  being 
co-tenants  thereof,  and,  in  such  a  case, 
under    a    statute    like    ours,    no    partition 


can  be  had.   .Tameson  v.  TTayward,  106  Cal. 
GS2;    4U   Am.    St.    Kej).   2G8;    39    Pac.    1078. 
A    CO  tenant    not    in    jiossessiou    can    main- 
tain a  suit  in  jiartition  against  a  co-tenant 
whose    possession    is    adverse    and    hostile. 
Martin   v.   Wallter,  58   Cal.   590;    Varni   v. 
Devoto,    10   Cal.   App.   304;    101    Pac.   934. 
The  right  of  a  tenant  in  common  to  main- 
tain an  action  for  jiartition  is  not  affected 
by  the  lien  of  a  mortgage  ujion  his  share, 
which  may  be  discharged  at  any  time  by 
jiayment    of    the    debt    secured;    nor    is    it 
affected  by  a  jirior  trust  in   the  land,  cre- 
ated   by    all    of     the    tenants    in    common, 
wliich,    if     valid,   has     terminated     in     the 
cessation    of    the    estate    of    the    trustee 
therein.    Gardiner   v.   Cord,    145   Cal.    157; 
78   Pac.   544.     Where   there   is  no   adverse 
jiossession  against  a  tenant  in  common  by 
any  of  his  co-tenants,  or  if  possession  was 
had  by  a  trustee,  it  was  as  much  the  pos- 
session   of    the    jilaintiff    as    of    the    other 
co-tenants,    and    there    was    no    ])ossession 
such    as    to    jiut    the    jilaintiff    on    inquiry, 
and  no   open   repudiation   of  any   trust   by 
the  trustee  to  the  knowledge  of  the  jilain- 
tiff,   he    is    not    barred    from    bringing   his 
action   in   jiartition.    Watson   v.   Sutro,   86 
Cal.   500;    24   Pac.   172;   25   Pac.   64.     This 
section  gives  to  any  one  or  more  of  several 
co-tenants  of  real  property  a  right  of  ac- 
tion  for   its    Jiartition    according    to    the 
respective  rights  of  the  persons  interested 
therein,   and   for   a   sale   of   said   jiroperty 
if  Jiartition  cannot  be  had;  and  in  the  suc- 
ceeding sections  provision  is  made  for  as- 
certaining    the     resjiective   rights   of     the 
jiarties   to   the   action,   and   for   the   satis- 
faction   or   other    disj)osition    of   any   liens 
thereon;    and,   although   a   party   may,   by 
some  act  or  agreement  on  his  jiart,  estop 
himself  from  enforcing  his  right  to  a  jiar- 
tition, the   mere   fact  that  his  interest  in 
the   land    is   subject   to    a   lien    or   encum- 
brance will  not,  of  itself,  operate  as  such 
estoppel.    Gardiner  v.   Cord,   145  Cal.   157; 
78  Pac.  544.     An  action  in  jiartition  should 
be  brought  in  the  name  of  the  real  party 
in  interest;  and  a  holder  under  a  convey- 
ance by  one  tenant  in  common  of  a  specific 
parcel    of   the    common    lands,    as    well    as 
the    co-tenants    of    his    grantor,    should    be 
made    a    party    to    such    action.     Gates    v. 
Salmon,  35  Cal.  576;  95  Am.  Dec.  139.     An 
action    for    partition    may    be    maintained 
by   the  owner  of  an   equitable   title;   such 
a   title   is  real   property   and  an   estate   of 
inheritance,  which  may  descend  or  be  con- 
veyed by  the  owner;  and  as  legal  and  equi- 
table  remedies   may   be   had    in    the   .«anie 
case,   the   owner   of   the  equitable   title   to 
an  undivided  interest  in  land  may  sue  to 
establish  his  right,  and  to  obtain  a  parti 
tion    of    the    common    estate.     Watson    v. 
Sutro,   86   Cal.   500;   24   Pac.   172;   25   Pac. 
64.     The    owner    of    an    equitable    title    to 
an  undivided  interest  mav  sue  to  establish 


§752 


ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY. 


922 


his  right,  and  to  obtain  a  division  of  the 
common  estate.  Varni  v.  Devoto,  10  Cal. 
App.  304;  101  Pac.  934.  The  administrator 
of  an  estate  has  no  such  interest  in  the 
]and  of  the  deceased  as  to  entitle  him  to 
institute  partition  proceedings;  he  cannot 
represent  either  side  in  a  contest  between 
heirs,  devisees,  or  legatees;  and  the  lan- 
guage of  the  court  in  Bath  v.  Valdez,  70 
Cal.  350,  is  clearly  obiter  dictum,  where 
it  is  said  that  actions  may  be  maintained 
by  the  administrator  of  an  estate  for  the 
partition  thereof;  the  intent  of  §  1581, 
post,  is,  not  to  give  the  administrator  the 
right  to  sue  for  partition  of  the  estate,  but 
to  give  to  the  heirs  and  devisees  the  bene- 
fit of  the  administrator's  possession  for 
the  purpose  of  their  maintaining  the  ac- 
tions described  in  that  section,  including 
suits  by  them  for  partition  of  the  estate. 
Eyer  v.  Fletcher  Eyer  Co.,  126  Cal.  4S2; 
58  Pac.  908.  If  a  purchaser  of  timber 
standing  on  land  has  ten  years  in  which 
to  remove  it,  but  fails  to  do  so,  a  court 
of  equity,  upon  a  showing  by  the  owner 
that  the  land  is  valueless  to  him  so  long 
as  the  timber  remains  thereon,  but  would 
be  valuable  if  it  were  removed,  has  power 
to  accomplish  a  segregation  and  beneficial 
appropriation  of  the  respective  interests 
in  the  property  to  the  respective  owners. 
Gibbs  V.  Peterson,  163  Cal.  758;  127  Pac. 
62. 

Necessary  parties.  Where  partition  is 
had  of  several  tracts  in  one  action,  all 
parties  must  be  co-tenants  of  each  tract; 
otherwise  there  would  be  a  misjoinder  of 
causes  of  action.  Middleeoff  v.  Cronise, 
155  Cal.  185;  17  Ann.  Cas.  1159;  100  Pac. 
232.  A  mortgagee,  who  has  no  lien  when 
an  action  of  partition  is  commenced,  need 
not  be  made  a  party.  Towle  Bros.  v.  Quinn, 
141  Cal.  382;  74  Pac.  1046.  The  grantee 
of  a  special  location  occupies,  as  to  such 
location,  the  identical  position  that  his 
grantor  held  immediately  before  the  exe- 
cution of  the  conveyance;  hence,  the  holder 
of  such  special  location  is  a  necessary 
party  to  an  action  for  the  partition  of 
the  general  tract.  Gates  v.  Salmon,  35  Cal. 
576;  95  Am.  Dec.  139. 

Complaint,  sufaciency  of.  A  complaint 
in  an  action  for  partition  must  aver  that 
the  co-tenants  hold  and  are  in  possession 
of  the  real  property  as  joint  tenants  or  as 
tenants  in  common,  in  which  property  one 
or  more  of  them  have  an  estate  of  in- 
heritance, or  for  life  or  lives,  or  for  years; 
and  if  these  averments  are  not  made,  it 
does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  Bradley  v.  Harkness,  26 
Cal.  69. 

Action  when  defendant  is  out  of  posses- 
sion. The  fact  that  the  defendant  was 
out  of  possession  when  the  action  was 
commenced,  is  not  material,  where  the 
judgment,  under  the  authority  of  §  759, 
post,  determines  the  rights  of  the  parties, 


as  though  each  were  in  possession.  Buhr- 
meister  v.  Buhrmeister,  10  Cal.  App.  392; 
102  Pac.  221. 

Partition  in  one  or  several  actions.  Par- 
tition may  be  had,  in  one  action,  of  two 
or  more  tracts  of  land,  though  such  tracts 
are  situated  in  different  counties;  such  suit 
being  maintainable  in  any  county  in  which 
a  part  of  the  property  is  situated.  Mid- 
dleeoff V.  Cronise,  155  Cal.  185;  17  Ann. 
Cas.  1159;  100  Pac.  232.  Eeal  and  per- 
sonal property  may  be  partitioned  sepa- 
rately, where  it  does  not  appear  that  such 
a  course  will  greatly  prejudice  the  owners. 
Woodward  v.  Eaum,  3  Cal.  Unrep.  734; 
31  Pac.  93.0.  The  fact  that  the  rights  of 
adverse  occupants  of  the  land  sought  to  be 
partitioned  may  be  put  in  issue,  tried,  and 
determined,  does  not  affect  the  question 
of  joinder  as  to  different  tracts  of  land. 
Middleeoff  v.  Cronise,  155  Cal.  185;  17 
Ann.  Cas.  1159;  100  Pac.  232. 

Estate  or  interest  not  subject  to  parti- 
tion. The  grant  of  an  undivided  interest 
in  mining-ground,  expressly  conditioned 
that  no  rights  are  conveyed,  except  a 
mining  right  upon  the  premises,  vests  in 
the  vendee  only  the  right  of  taking  from 
the  land  any  minerals  contained  in  it 
to  the  extent  of  the  interest  granted;  the 
vendee  does  not,  by  virtue  of  the  convey- 
ance, become  a  coparcener,  joint  tenant, 
or  tenant  in  common,  with  the  vendor,  in 
the  land  itself;  and  his  interest  is  not  an 
estate  which  can  be  the  subject  of  an 
action  for  partition.  Smith  v.  Cooley,  65 
Cal.  46;  2  Pac.  880.  A  right  to  the  use 
of  state  lands  for  oyster-beds  is  not  a 
subject  of  partition.  Darbee  &  Immel 
Oyster  etc.  Co.  v.  Pacific  Oyster  Co.,  150 
Cal.  392;  119  Am,  St.  Eep.  227;  88  Pac. 
1090.  There  can  be  no  partition  of  a 
homestead  by  either  party.  Hannon  v. 
Southern  Pacific  E.  E.  Co.,  12  Cal.  App. 
350;  107  Pac.  335;  Mills  v.  Stump,  20  Cal. 
App.  84;  128  Pac.  349. 

Effect  of  conveyance  by  co-tenant.  One 
co-tenant  cannot,  by  a  conveyance  of  his 
interest  in  a  portion  of  the  property  held 
in  common,  prejudice  the  rights  of  his  co- 
tenants.  Middleeoff  v.  Cronise,  155  Cal. 
185;  17  Ann.  Cas.  1159;  100  Pac.  232. 
One  tenant  in  common  cannot  appropriate 
to  himself  any  particular  parcel  of  the 
general  tract;  as,  upon  a  partition,  which 
may  be  claimed  by  the  co-tenants  at  any 
time,  the  parcel  may  be  set  apart  in  sev- 
eralty to  a  co-tenant;  he  cannot  defeat 
this  possible  result  whilst  retaining  his  in- 
terest; not  being  able  to  invest  his  grantee 
with  rights  greater  than  his  own,  such 
grantee  wouhl  take  subject  to  the  contin- 
gency of  the  loss  of  the  premises,  if,  upon 
the  partition  of  the  general  tract,  ttey 
should  not  be  allotted  to  the  grantor. 
Stark  V.  Barrett,  15  Cal.  362;  Gates  v. 
Salmon,  35  Cal.  576;  95  Am.  Dec.  139. 
A   conveyance   by  one   tenant  in   common, 


923 


CO-TENANCY,   ETC. — INTERESTS  OF   ALL  PARTIES   TO  BE  SET   OUT.       §  753 


or  any  number  of  them  less  than  the 
■whole,  of  a  specific  i)ortioii  of  the  common 
lanfls,  is  not  void,  but  cannot  be  made  to 
the  prejudice  of  the  tenants  not  unitinj,' 
in  the  conveyance;  the  j;rantoe  at  such 
sale  acquires  all  the  interest  of  his  }i;rantor 
in  such  special  tract,  which  interest  is  a 
tenancy  in  the  special  tract  with  the  co- 
tenants  of  his  grantor.  Gates  v.  Salmon, 
33  Cal.  a7G;  05  Am.  Dec.  139. 

Tenants  in  common,  who  are.  The  joint 
()ioprietors  of  water-ditches  in  the  mining 
xlistricts,  in  the  absence  of  any  special 
facts  constituting  them  something  else,  are 
tenants  in  common  of  real  estate,  and 
their  rights  in  the  ditches  and  in  sales  of 
water  are  governed  by  the  laws  of  ten- 
ancy in  common.  Bradley  v.  Ilarkness,  26 
Cal.  69. 

Co-tenancy  and  copartnership  diflferen- 
tiated.  A  tenancy  in  common  results  from 
a  rule  of  law,  by  which  it  is  controlled  and 
governed,  and  each  co-tenant  sells  or  en- 
cumbers his  interest  at  pleasure,  regard- 
less of  the  knowledge  or  consent  or  wishes 
of  co-proprietors,  without  affecting  the 
legal  relation  existing  between  them,  be- 
yond the  going  out  of  one  and  the  coming 
in  of  another;  a  copartnership  is  the  result 
•of  an  agreement  between  the  parties,  and 
one  of  the  firm  cannot  sell  his  interest  in 
the  same,  nor  can  a  stranger  buy  the  same, 
at  pleasure;  and  where  such  purchase  or 
sale  is  made  with  the  consent  of  the  firm, 
it  works  a  dissolution  of  the  partnership, 
and  necessitates  the  final  closing  out  and 
settlement  of  the  old  firm.  Bradley  v. 
Harkness,  26  Cal.  69. 

Eeal  property,  defined.  The  "real  prop- 
erty" referred  to  in  this  section,  is  that  as 
lo  which  such  unity  of  title  exists  as 
authorizes  a  single  action.  Middlecofif  v. 
Oonise,  1.55  Cal.  185;  17  Ann.  Cas.  1159; 
100  Pac.  232. 

Who  may  compel  partition.  See  note  67  Am. 
Dec.  703. 

Partition  of  mines.  See  note  9  Am.  St.  Rep. 
884. 

Whether  partition  must  include  all  the  lands 
■of  the  co-tenancy.     See  note  114  Am.  St.  Rep.  80. 

Right  to  partition  more  than  one  parcel  of 
realty  in  single  action.  See  note  17  Ann.  Cas. 
1163. 

Power  of  court  to  partition  land  In  another 
jurisdiction.  See  notes  Ann.  Cas.  1912B,  991;  (59 
h.  K.  A.  692;  23  L.  R.  A.  (N.  S.)  924;  27 
L.  K.  A.  (N.  S.)  420. 

Right  of  tenant  in  common  to  partition  of 
property  in  which  he  has  life  estate  only.  See 
note  11  Ann.  Cas.  1040. 

Right  to  partition  of  property  held  in  trust. 
:See   note   Ann.   Cas.   1912C,  327. 


Right    of    one   out   of   possession   to    partition. 

H,'v  iic.ti'  20   I..   ]{.   A.  624. 

Partition  between  tenants  by  entireties.  See 
n.il.s   Ml    I..  K.  A.  .-Kl.-.  ;   42    I,.  H.  A.  (  N.  S.)  98. 

Right  of  partition  among  remaindermen  pend- 
ing life  estate.     See  note  28  L.  U.  A.  (N.S. )  125. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. See  Uati.s  v.  S.iliiion,  :j.">  Cal.  .'570;  95  Am. 
Deo.  139.  Tlie  right  may  be  exercised  at  any 
time.  Stark  v.  Barrett,  15  Cal.  361.  The  pro 
coedinc  i.s  a  special  one,  and  the  statute  pre- 
scril>es  its  course  and  efTect ;  and  thouKh,  after 
jurisdiction  has  attached,  errors  in  the  course 
of  llie  cause  cannot  be  collaterally  shown  to 
impe.ich  a  judgment,  yet,  so  far  at  least  as  the 
rights  of  infants  are  involved,  the  court  has 
no  jurisdiction  except  over  the  matter  of  par- 
tition. Waterman  v.  Lawrence,  19  Cal.  210;  79 
Am.  Dec.  212.  Rule  for  partition  in  respect 
to  improvements.  Seale  v.  Soto,  35  Cal.  102. 
Partition  among  tenants  in  common  must  be  of 
tlio  whole  tract.  One  tenant  cannot  l>ave  par- 
tition of  part  only  of  the  entire  common  prop- 
erty. Sutter  V.  San  Fr;incisco,  36  Cal.  112.  If 
the  court  finds  that  the  parties  hold  and  are 
in  possession  as  joint  tenants  or  as  tenants  in 
common,  and  that  one  or  more  of  them  have  an 
(■st;Ue  of  inlieritance,  or  for  life,  or  lives,  or 
for  years,  the  partition  should  be  made,  althouch 
the  findings  may  also  show  that  the  plaintiff, 
in  his  complaint,  has  incorrectly  set  forth  the 
title  or  interest  of  the  parties,  or  of  one  or 
more  of  them,  in  tlie  land.  De  Uprey  v.  De 
Uprey,  27  Cal.  331;  87  Am.  Dec.  81.  A  tenant 
in  common  out  of  possession  may,  in  equity,  as 
a  collateral  incident  to  a  claim  for  partition, 
compel  his  co-tenant  in  possession  to  account  for 
rents  and  profits  received  by  him  from  tenants 
of  premises.  State  v.  Poulterer.  16  C.il.  514. 
Corporations  cannot  together  hold  as  joint  ten- 
ants.   De  Witt  V.  San  Francisco,  2  Cal.  289. 

2.  Water.  Where  the  action  is  for  partition 
of  a  water-ditch,  an  account  of  the  proceeds  for 
water  rates  can  be  taken,  and  if  one  of  the 
tenants  in  common  holds  a  mortgage  on  the 
interests  of  his  co-tenants,  that  can  be  adjusted 
in  the  action,  by  an  application  of  the  proceeds 
of  the  mortgagor's  interest  towards  the  payment 
of  the  same.  Bradley  v.  Harkness,  26  Cal.  69. 
Water  flowing  in  a  ditch  cannot  be  partitioned 
merhanically.     McGillivray  v.  Evans,  27  Cal.  96. 

3.  Mining  claims  may  be  partitioned  as  other 
real  property,  and  the  fact  that  a  mining  claim 
is  owned  and  worked  by  several  persons  as 
partners,  is  no  valid  objection  to  a  partition  of 
the  same,  if  the  answer  does  not  set  up,  and  it 
is  not  shown,  that  a  suit  in  equity  is  necessary 
to  settle  the  accounts  and  adjust  the  business 
of  the  partnership;  and  all  tlie  material  alliga- 
tions in  a  complaint  for  partition  of  real  prop- 
erty, which  are  not  denied  by  the  answer,  are 
deemed  admitted  for  the  purpose  of  the  trial. 
Hualii  s  V.  Devlin,  23  Cal.  501. 

4.  Parol  partition.  A  parol  partition  may  be 
made  by  co-owners  under  the  Mexican  law,  as 
well  as  by  tenants  in  common  under  the  com- 
mon law.  In  order  to  uphold  a  parol  partition 
under  both  the  Spanish  and  common  law,  it  must 
satisfactorily  appear  that  there  was  not  only  an 
agreement  to  make  tlie  partition,  but  that  it 
was  executed  and  followed  up  by  a  several 
possession,  by  either  the  parties  themselves  or 
their  grantees.  Long  v.  DoUarhide,  24  Cal.  222; 
Klias  v.  Verdugo,  27  Cal.  420;  Carpentier  v. 
Thirston,  24  Cal.  280.  If  an  attorney  in  fact, 
not  authorized,  make  partition,  the  principal  may  ■ 
ratifv  it,  either  expressly  or  by  implication. 
P.orel  V.  Rolins,  30  Cal.  408. 


§  753.  Interests  of  all  parties  must  be  set  forth  in  the  complaint.  Tlie 
"interests  of  all  persons  in  the  property,  Avhether  such  persons  are  kuoAvn 
•or  unknown,  must  be  set  forth  in  the  complaint,  as  far  as  known  to  the 
plaintiff;  and  if  one  or  more  of  the  parties,  or  the  share  or  ({uantity  of  in- 
terest of  any  of  the  parties,  is  unknown  to  the  plaintiff,  or  is  uncertain  or 
contingent,  or  the  ownership  of  the  inheritance  depends  upon  an  executory 


§754 


ACTIONS   FOR   PARTITION   OF    REAL   PROPERTY. 


921 


Coirclaint  iu  partition. 

1.  Gei:erally.    AiitP,  §  426. 

2.  Parties.     Post,  §  754;  ante,  §§  384,  387. 
Uuknown  persons. 

1.  Use  of  fictitious  names.    Ante,  §  474. 

2.  Summons.     Post,  §  756. 

Abstract   of   title,   procured  before   suit.    Post 
§  799. 


devise,  or  the  remainder  is  a  contingent  remainder,  so  that  such  parties  can- 
not be  named,  that  fact  must  be  set  forth  in  the  complaint. 

the  constituent  faets,  or  those  M^hich  lie- 
behind,  are  probative,  and  need  not  be 
averred.  De  Uprey  v.  De  Uprey,  27  Cal- 
329;  87  Am.  Dec.  81. 

Persons  interested.  All  interested  per- 
sons, to  be  bound  by  the  judgment,  must 
be  made  parties  in  partition.  Gates  v.. 
Salmon.  35  Cal.  576;  95  Am.  Dec.  139; 
Hancock  v.  Lopez,  53  Cal.  362;  Martin  v^ 
Walker,  58  Cal.  590.  Where  an  action  is 
brought  as  authorized  by  this  section,  for 
the  benefit  of  all  persons  interested  in  the 
estate,  all  are  actors  from  its  commence- 
ment.  Adams  v.  Hopkins,  69  Pac.  228. 

Joinder  of  several  parcels.  Where  on& 
co-tenant  has  conveyed  his  interest,  the- 
whole  property  originally  held  in  common 
by  the  co-tenants  may  be  partitioned,  al- 
though a  necessary  party  defendant  may 
be  a  co-tenant  as  to  only  one  of  the  par- 
cels involved.  Middlecoff  v.  Cronise,  15.5 
Cal.  185;  17  Ann.  Cas.  1159;  100  Pac.  232. 
The  question  of  joinder,  in  partition,  as 
to  different  tracts  of  land,  is  not  affected 
by  the  fact  that  the  rights  of  adverse  occu- 
pants of  the  land  sought  to  be  partitioned 
may  be  put  in  issue,  tried,  and  determined., 
Middlecoft'  v.  Cronise,  155  Cal.  185;  17  Ann. 
Cas.  1159;  100  Pac.  232. 


Legislation  g  753.  1.  Enacted  March  11.  1872 
(based  on  Practice  Act,  §  265),  changing  "shall" 
to  "must,"  in  both  instances. 

2.  Amendment  by  Stats.  1901,  p.  160;  un- 
constitutional.   See  note  ante,  §  5. 

3.  Amended  by  Stats.  190T,  p.  603,  changing 
(1)  "be"  to  "are"  before  "known,"  and  to  "is" 
before  "unknown,"  before  "uncertain,"  and  after 
"remainder";  (2)  changing  "depend"  to  "de- 
pends": and  (3)  omitting  the  words  "specifically 
and  particularly"  after  "in  the  complaint";  the 
code  commissioner  saying,  "Omits  the  words 
'specifically  and  particularly,'  so  that  a  general 
statement  of  tlie  interests  of  the  respective  par- 
ties will  be  suflScient." 

Setting    forth   interests    of    all    parties. 

An  action  for  partition,  under  our  statute, 
is,  to  some  extent,  sui  generis:  the  parties 
named  in  the  complaint,  whether  as  plain- 
tiffs or  defendants,  are  all  actors,  each  rep- 
resenting his  own  interest.  Morenhout  v. 
Higuera,  32  Cal.  289.  In  an  action  under 
this  section,  the  plaintiff  is  required  to  set 
forth  the  interests  of  all  parties,  known 
or  unknown,  so  far  as  they  are  known  to 
him,  and  each  defendant  is  required  to 
set  forth  in  his  answer,  fully  and  par- 
ticularly, the  nature  and  extent  of  his  in- 
terests (De  Uprey  v.  De  Uprey,  27  Cal. 
330;  87  Am.  Dec.  81);  but  it  would  be 
idle  to  require  the  plaintiff  to  set  forth 
interests  specificallj'^,  of  the  character  and 
extent  of  which  he  is  ignorant.  Moren- 
hout V.  Higuera,  32  Cal.  289.  All  the  in- 
terests of  all  persons  in  the  property  must 
be  set  forth,  as  far  as  known  to  the  plain- 
tiff: the  nature  of  the  action  makes  the 
bringing  in  of  a  new  party  matter  of  sub- 
stance. San  Diego  Sav.  Bank  v.  Goodsell, 
137  Cal.  420;  70  Pac.  299.  Where  a  wife 
claims  a  homestead  right  or  an  interest  in 
the  premises,  she  is  not  only  a  proper  but 
a  necessary  party  to  partition  proceedings. 
De  Uprey  v.  De  Uprey,  27  Cal.  330;  87  Am. 
Dec.  81. 

Sufficiency  of  complaint.  In  a  complaint 
to  obtain  a  partition  of  land,  a  general 
allegation,  that  the  premises  cannot  be  di- 
vided by  metes  and  bounds  without  preju- 
dice, is  sufficient;  a  complaint  is  good, 
.which  is  silent  upon  the  subject  of  the 
mode  of  partition;  and  whether  partition 
can  or  cannot  be  made  by  metes  and 
bounds,  is  the  only  necessary  averment  in 
the  complaint,  as  that  is  purely  a  question 
of  fact,  and  the  ultimate  fact  to  be  found; 


CODE  COMMISSIONEES'  NOTE.  If  the  com- 
plaint does  not  fully  state  the  origin,  nature^ 
or  extent  of  the  interest  of  the  plaintiff,  the 
objection  must  be  taken  by  demurrer,  or  it  is. 
waived.  Broad  v.  Broad,  40  Cal.  493.  An  action 
for  partition  under  our  code  is  to  some  extent 
sui  generis.  The  parties  named  in  the  complaint, 
whether  as  plaintiffs  or  defendants,  are  all  actors, 
each  representing  his  own  interest.  Whether 
plaintiffs  or  defendants,  they  are  required  to  set 
forth  fully  aijd  particularly  the  origin,  nature, 
and  extent  of  their  interests  in  the  property,  and 
the  interests  of  each  and  all  may  be  put  in. 
issue  by  the  others  and  tried.  Morenhout  v.. 
Higuera,  32  Cal.  295;  Senter  v.  Bernal.  33  Cal_ 
642.  All  the  tenants  in  common  should  be 
made  parties.  All  grantees  of  original  owners 
should  be  joined  as  parties.  Sutter  v.  San  Fran- 
cisco, 36  Cal.  112.  If  the  wife  claim  a  home- 
stead right,  she  is  a  proper  party.  De  Uprey 
V.  De  Uprey,  27  Cal.  331;  87  Am.  Dec.  81.. 
A  tenant  in  common  of  part  of  a  tract  of  land 
is  a  proper  party  in  a  suit  for  partition  of  the 
whole.  Gates  v.  Salmon,  35  Cal.  576;  95  Am. 
Dec.  139;  Dutton  v.  Warschauer,  21  Cal.  609; 
82  Am.  Dec.  765;  Hathaway  v.  De  Soto,  21 
Cal.  191.  The  complaint  must  aver  that  the 
co-tenants  hold  and  are  in  possession  of  real 
property  as  joint  tenants,  or  as  tenants  in  com- 
mon, in  which  property  one  or  more  of  thent 
have  an  estate  of  inheritance,  or  for  life  or  lives, 
or  for  years ;  and  if  these  averments  are  not. 
made,  it  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  Bradley  v.  Harkness, 
26  Cal.  76.  A  general  allegation  of  "the  prem- 
ises cannot  be  divided  by  metes  and  bounds- 
without  prejudice,"  is  sufficient,  without  an  alle- 
gation of  the  facts  upon  which  the  plaintiff  is  to> 
obtain  a  particular  mode  of  partition.  De  Uprey 
v.  De  Uprey,  27  Cal.  331  ;  87  Am.  Dec.  81. 


§  754.     Lienholders  not  of  record  need  not  be  made  parties.     No  person 
having  a  conveyance  of  or  claiming  a  lien  on  the  property,  or  some  part  of 
it,   need   be  made   a   party   to   the   action,    unless  such   conveyance   or   liert . 
appear  of  record. 


"925  LIS   PENDENa SUMMONS — UNKNOWN    PARTIES — ANSWER.       §§  755-758 

Legislation  s  754.     Knaoted  March  11,   1872;  Mortgagee    not    necessary    party    when. 

xeenactraent    of   P»ii';lice    Act,  §  206,    as    amended         rp,,^,     plaintiff     in     a     partition     suit     is     uot 
by  Stats.   1866,  p.  704.  ,,      '  .  ,      »  ^  .   , 

callod  u|ion  to  make  a  iiioit^jaj^ec  a  part\ 

Scope   of  section.     This   section    is   con-       thereto,   where  his  lien   was  uot  of  record 

fined  to  an  action  for  partition.    Unjicr  v.       ^yhcn    the  suit   was   commenced.    Towle   v. 

Eoper,  5:!  Cal.  ;59.  Quinn,  141  Cal.  382;  74  Pac.  1046. 

§  755.  Plaintiff  must  file  notice  of  lis  pendens.  Tmmetliately  after  filing 
the  complaint  in  the  superior  court,  the  phiintiff  must  record  in  the  office 
of  the  recorder  of  the  county,  or  of  the  several  counties  in  which  the  prop- 
erty is  situated,  a  notice  of  the  pendency  of  the  action,  containing  the  names 
of  the  parties  so  far  as  known,  the  ohject  of  the  action,  and  a  description  of 
the  property  to  be  affected  thereby.  From  the  time  of  filin^?  such  notice 
for  recoi-d  all  persons  shall  be  deemed  to  have  notice  of  the  pendency  of 
the  action. 

Lis  pendens.     Ante,  §  409.  2.   Amended    by  Code  Aradts.  1873-74.  p.  325, 

(1)    after   "plair.tiff  must,"   the   words   "file   with" 

Legislation  S  755.    1.  Enacted  March  11,   1872  were    changed    to    "record    in    the    oflice    of":    CJ) 

(based    on     Practice    Act,  §  267,    as    amended    by  the   words    "either   a   copy   of   such    complaint   or" 

Stats.  _  1865-66,     p.     705),     changinf;    "shall"     to  were  omitted  before  "a  notice":   and   (3)   the   last 

"must"    after    "plaintiff,"    the    last    sentence    then  sentence  was  changed  to  read  as  at  present, 
reading,   "From  the   time  of  the   filing,   it   shall   be  3,   Amended    by    Code    Amdts.    1880,    p.     11, 

•deemed  notice  to  all."  cluuiging   "district  court"    to   "superior  court." 

§756.  Summons.  To  whom  directed,  and  must  contain  what.  The  sum- 
mons must  contain  a  description  of  the  property  sought  to  be  partitioned, 
and  must  be  directed  to  all  of  the  persons  named  as  defendants  in  the  com- 
plaint, and  when  it  shows  that  some  person  has  or  claims  an  interest  in  or 
lien  upon  the  property  whose  name  is  unknown  to  the  plaintiff,  the  sum- 
mons must  also  be  directed  to  all  persons  unknown  who  have  or  claim  any 
interest  in  or  lieu  upon  the  property. 

Summons  in  partition.  3.   Amended  by  Stats.  1907,  p.  604;  the  code 

1.  Generally.    Ante,  §§  405-416.  commissioner  saying,   "Simplilies  the  summons  in 

2.  Contents.  Set-  ante,  §  407.  partition,  so  as  to  make  it  clear  that  it  need  not 
T  •  1  i.-  o  .,  =  „  <  T^  1  J  nf  u  ,  •■  -o-vn  ^>^  directed  to  'pers(jns  unknown,"  when  the  com- 
Legislation  §  756.     1.  Enacted  March  11  1872;        plaint    refers   to    known   persons   only." 

oased   on    Practice   Act,  §  268,    which    read:       Ihe 

summons  shall  be  directed  to  all  the  joint  tenants  Validity  Of  SUmmons.      A  summons  in  an 

«nd    tenants   in    common,    and    all    persons   having  action    of   I.artiti.iu   is   not   void  upon   a  col- 

anv   interest   in,    or  any   hens   ot   record   by   mort-  i    i         i        .:      i         ,  ,      •  *         . 

^age,  judgment,   or  otherwise,   upon  the   property,  lateral    attack,    though    it    was    UOt    issued 

or  upon  any  particular  portion  thereof;   and  gen-  until  after  the  expiration  of  a  year.    Bald- 

erally,  to  all  persons  unknown,  who  have  or  claim  „:  Foster    Ti?  Cnl    ti4'^  •   1  fl^  Pnc    714 

any   interest   in   the    property."      When  §  756    was  ^'"  ^-  rosier,  l.j  i    Lai.  04.3,   iUS  rac.  I  l-i. 

enacted  in   1872,   "shall"  was  changed  to   "must."  oODE     COMMISSIONERS'    NOTE.      Gates    v. 

2.   Amendment   by    btats.    1901,    p.    160;    un-         Salmon,  35  Cal.  576  ;  95  .Vm.  Dec.  139. 
■constitutional,     see  note  ante,  8  5. 

§  757.  Unknown  parties  may  be  served  by  publication.  If  a  party  hav- 
ing a  share  or  interest  is  unknown,  or  any  one  oL"  the  known  parties  reside 
out  of  the  state,  or  cannot  be  found  therein,  and  such  fact  is  made  to  ap- 
pear by  affidavit,  the  summons  may  be  served  on  such  absent  or  unknown 
party  by  publication,  as  in  other  cases.  When  publication  is  made,  the 
summons,  as  published,  must  be  accompanied  by  a  brief  description  of  the 
property  which  is  the  subject  of  the  action. 

Service  by  publication.    Ante,  §§  412,  413.  to  "must." 

Legislation  S  757.      1.  Enacted  March  11,  1872  2.    Amendment    by    Stats.    1901,    p.    160;    un- 

(based  on   PracUce  Act,  §  269),   changing   "shaU"         constitutional.     See  note  ante,  ^  o. 

§  758.  Answer  of  defendants.  What  to  contain.  If  the  defendant  fails 
to  answer  within  the  time  allowed  by  law,  he  is  deemed  to  admit  and  adopt 
the  allegations  of  the  complaint.  Otherwise,  he  must  controvert  such  of 
the  allegations  of  the  complaint  as  he  does  not  wish  to  be  taken  as  admitted, 
.and  must  set  forth  his  estate  or  interest  in  the  property,  and  if  he  claims  a 


§759 


ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY, 


926 


lien  thereon  must  state  the  date  and  character  of  the  lien  and  the  amount 
remaining  due,  and  whether  he  has  any  additional  security  therefor,  and  if" 
so,  its  nature  and  extent,  and  if  he  fails  to  disclose  such  additional  secu- 
rity, he  must  be  deemed  to  have  waived  his  lien  on  the  property  to  be 
partitioned. 


Answer  in  partition. 

1.  Generally.    Ante.  §  437. 

2.  Pleading  disbursements.    Post,  §  798. 
Notice.     Abstract  of  title.    Post,  §  799. 

Legislation  §  758.  1.  Enacted  March  11,  1873  ; 
based  on  Practice  Act,  §  270,  as  amended  by 
Stats.  1865-66,  p.  705,  which  read:  "The  de- 
fendants who  have  been  personally  served  with 
the  summons  and  a  copy  of  the  complaint,  or  who 
shall  have  appeared  without  such  service,  shall 
set  forth  iu  their  answers,  fully  and  particularly, 
the  origin,  nature,  and  extent  of  their  respective 
interests  in  the  property;  and  if  such  defendants 
claim  a  lien  on  the  property  by  mortgage,  judg- 
ment, or  otherwise,  they  shall  correctly  state  the 
original  amount  and  date  of  the  same,  and  the 
true  sum  remaining  due  thereon;  also,  whether 
the  same  has  been  secured  in  any  other  way  or 
not:  and  if  secured,  the  nature  and  extent  of 
such  security,  or  they  shall  be  deemed  to  have 
waived  their  right  to  such  lien."  When  §  758 
was  enacted  in  1872,  (1)  "shall"  was  omitted 
before  "have  appeared";  (2)  "shall"  was  changed 
to  "must"  before  "set  forth":  (3)  "shall  cor- 
rectly" was  changed  to  "must"  before  "state"  ; 
(4)  "true"  was  omitted  before  "sum";  and  (5) 
"are"  was  changed  from  "shall  be"  before 
"deemed." 

2.  Amendment  by  Stats.  1901,  p.  161;  un- 
constitutional.   See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  604;  the  code 
commissioner  saying,  "The  amendment  provides 
that  if  the  defendant  fails  to  answer  within  the 
time  allowed  by  law,  he  is  deemed  to  admit  and 
adopt    the    allegations   of    the    complaint,    thus   ex- 


cusing the  defendant  from  alleging  his  interest 
by  way  of  answer,  if  the  complaint  sufficiently 
discloses  such  interest." 

Disclaimer.  In  an  action  of  partition, 
a  defendant  cannot  claim  that  the  action 
be  dismissed  as  to  him,  on  the  ground  that 
his  answer  disclaims  any  interest  in  the 
land,  unless  he  has  made  the  disclaimer  in 
absolute  and  unconditional  terms;  his  an- 
swer disclaiming  all  interest  in  the  land 
in  dispute,  except  such  as  he  may  have 
under  the  homestead  law,  by  virtue  of  the 
dedication  of  the  land  to  homestead  uses 
by  himself  and  his  wife,  is  not  a  dis- 
claimer. De  Uprey  v.  De  Uprey,  27  Cal. 
330;  87  Am.  Dec.  81. 

CODE  COMMISSIONERS'  NOTE.  A  defend- 
ant is  not  entitled  to  have  the  action  dismissed 
by  reason  of  any  defense  which  he  may  set 
up  in  his  answer,  or  on  the  ground  that  his 
answer  disclaims  any  interest  in  the  land,  unless 
he  has  made  the  disclaimer  in  absolute  and 
unconditional  terms.  De  Uprey  v.  De  Uprey,  27 
Cal.  331;  87  Am.  Dec.  81.  Guardians  ad  litem, 
representing  infants  in  a  case  of  partition,  have 
power  to  defend  solely  against  the  claim  set 
up  for  partition  of  the  common  estate.  Water- 
man V.  Lawrence,  19  Cal.  210;  79  Am.  Dec.  212. 
See  also  subd.  1  of  note  to  §  752. 


§  759,     Rights  of  all  parties  may  be  put  in  issue  and  determined  in  action. 

The  rights  of  the  several  parties,  plaintiff  as  well  as  defendant,  may  be  put 
in  issue,  tried,  and  determined  in  such  action;  and  when  a  sale  of  the 
premises  is  necessary,  the  title  must  be  ascertained  by  proof  to  the  satis- 
faction of  the  court  before  the  sale  can  be  ordered;  except  that  where  there- 
are  several  unknown  persons  having  an  interest  in  the  property,  their  rights 
may  be  considered  together  in  the  action,  and  not  as  between  themselves. 

proof  must  be  made  of  the  title  of  absent  and  un- 
known parties  before  judgment  can  be  entered,  to 
avoid  the  conflict  between  this  section  and  §  774, 
referred  to  in  Grant  v.  Murphy,   116  Cal.  433." 

Jurisdiction.  The  court,  in  partition 
proceedings,  has  jurisdiction  to  try  and 
determine  all  issues,  whether  at  law  or  in-. 
equity,  and  must  determine  them  as  part 
of  the  proceeding  itself.  Emeric  v.  Alva- 
rado,  64  Cal.  529,  629;  2  Pac.  418.  This 
section,  and  §  774,  post,  so  far  as  applying 
to  the  determination  by  the  court  of  ques- 
tions of  title  as  between  hostile  claimants 
to  any  share  or  parcel,  or  to  the  proceeds 
of  the  sale  thereof,  are  to  be  construed  as 
limited  to  the  determination  of  issues  over 
which  the  court  in  which  the  partition  pro- 
ceedings are  pending  has  juris<liction,  and 
not  as  applicable  to  the  determination  of 
hostile  claims  to  the  estate  of  a  deceased 
co-tenant,  over  which  the  probate  court 
has  exclusive  jurisdiction.  Grant  v.  Mur- 
phy, 116  Cal.  427;  58  Am.  St,.  Rep.  188;; 
48  Pac.  481, 


Final  judgment.    Post,  §  766. 

Parties.     Ante,  §§  381,  384;  post,  §  761. 

Intervention.    Ante,  §  387. 

Legislation  §  759.  1,  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  271,  which  read:  "The 
rights  of  the  several  parties,  plaintififs  as  well  as 
defendants,  may  be  put  in  issue,  tried  and  deter- 
mined by  such  action ;  and  when  a  sale  of  the 
premises  is  necessary,  the  title  shall  be  ascer- 
tained by  proof  to  the  satisfaction  of  the  court, 
before  the  judgment  of  sale  shall  be  made;  and 
where  service  of  the  complaint  has  been  made 
by  publication,  like  proof  shall  be  required  of  the 
right  of  the  absent  or  unknown  parties,  before 
such  judgment  is  rendered;  except  that  where 
there  are  several  unknown  persons  having  an  in- 
terest in  the  property,  their  rights  may  be  con- 
sidered together  in  the  action,  and  not  as  be- 
tween themselves."  When  §  759  v;as  enacted  in 
1872,  (1)  "plaintiff"  was  substituted  for  "plain- 
tiffs" and  "defendant"  for  "defendants,"  (2)  "in" 
for  "by"  before  "such  action,"  (3)  "must"  for 
"shall"  before  "be  ascertained,"  (4)  "can"  for 
"shall"  before  "be  made,"  and  (5)  "must"  for 
"shall"  before  "be  required." 

2,  Amendment  by  Stats.  1901,  p.  161;  un- 
constitutional.    See  note  ante,  §  5. 

3,  Amended  by  Stats.  1907,  p.  604;  the  code 
commissioner  saying,  "Substituting  the  words 
'sale  can  be  ordered'  in  place  of  "judgment  of  sale 
can  be  made,'   and  omitting  the   requirement   that 


927 


INTERESTS,   ETC,   THAT   MAY  BE   DETERMINED — POSSESSION,   ETC.         §  759 


Interests,  rights,  and  claims  that  may  be 
determined.  Any  question  affecting  the 
right  of  the  plaintiff  to  a  partition,  or 
the  rijjhts  of  eaeh  and  all  of  the  parties 
in  the  land,  may  be  put  in  issue,  tried,  and 
determined  in  such  action.  De  Uprey  v. 
De  Uprey,  27  Cal.  335;  87  Am.  Dec' 81 ; 
Morenhout  v.  Higuera,  32  Cal.  289;  Gates 
V.  Salmon,  35  Cal.  570 ;  95  Am.  Doc.  139; 
Hancock  v.  Lopez,  53  Cal.  362;  Martin  v. 
Walker,  58  Cal.  590.  Where  the  plaintiffs 
have  set  forth  the  origin,  nature,  and  ex- 
tent of  their  interests,  the  interest  of  each 
or  all  may  be  put  in  issue  by  the  others; 
and  if  so,  such  issues  are  to  be  first  tried 
and  determined,  and  no  partition  can  bo 
made  until  the  resjiective  interests  of  all 
the  parties  have  been  ascertained  and 
settled  by  a  trial.  Morenhout  v.  Iliguera, 
32  Cal.  289.  In  partition,  where  the  requi- 
site unity  of  title  as  to  the  co-tenants 
exists,  the  claims  of  any  and  all  persons 
adverse  to  the  co-tenants  may  be  deter- 
mined and  settled:  a  determination  of  ad- 
verse claims  is  merely  incidental  to  the 
action.  Middlecoff  v.  Cronise,  155  Cal.  185; 
17  Ann.  Cas.  1159;  100  Pac.  232.  Even 
where  partition  is  not  maintainable,  the 
proceeding  may  be  retained  to  settle  a 
dispute  as  to  title.  Buhrmeister  v.  Buhr- 
meister,  10  Cal.  App.  392;  102  Pac.  221. 

Mortgage  claims.  In  an  action  for  the 
partition  of  a  water-ditch,  a  mortgage 
claim  can  be  settled  and  adjusted,  and,  as 
collateral  to  the  main  question,  an  account 
of  the  water  rates  can  be  taken,  and  the 
rights  of  the  parties  therein  respectively 
ascertained.  Bradley  v.  Harkness,  26  Cal. 
69. 

Rights  of  what  persons  may  be  deter- 
mined. In  partition,  the  rights  of  all 
parties  may  be  fully  inquired  into  and  de- 
termined (Martin  v.  Walker,  58  Cal.  590; 
Emeric  v.  Alvarado,  90  Cal.  444;  27  Pac. 
356;  Buhrmeister  v.  Buhrmeister,  10  Cal. 
App.  392;  102  Pac.  221;  Varni  v.  Devoto, 
10  Cal.  App.  304;  101  Pac.  934);  as  may 
also  the  rights  of  adverse  occupants  of 
land  sought  to  be  partitioned.  Middlecoff 
V.  Cronise,  155  Cal.  185;  17  Ann.  Cas.  1159; 
100  Pac.  232;  Varni  v.  Devoto,  10  Cal.  App. 
304;  101  Pac.  934;  Adams  v.  Hopkins,  144 
Cal.  19;  77  Pac.  712;  69  Pac.  228.  Where, 
if  a  trust  was  invalid  from  the  beginning, 
the  title  and  estate  of  the  owners  of  the 
land  was  not  affected  thereby,  and  if  it 
was  valid,  it  had  terminated,  and  the  es- 
tate of  the  trustee  had  ceased,  the  rights 
of  the  owners  of  the  land  can  be  adjudi- 
cated in  a  court  of  equity,  or  in  a  i>ro- 
ceeding  for  partition  under  this  section, 
without  the  necessity  of  an  actual  recon- 
veyance thereof  from  the  trustee.  Gardi- 
ner V.  Cord,  145  Cal.  157;  78  Pac.  544.  In 
an  action  for  partition,  whore  two  or  more 
have  entered  into  a  fraudulent  scheme 
for  the  purpose  of  obtaining  property,  in 
which  all  are  to  share,  and  the  scheme  has 


been  carried  out  so  that  all  the  results  of 
the  fraud  are  in  the  hands  of  one  of  the 
f>arties,  a  court  of  equity  will  not  inter- 
fere in  behalf  of  the  others  to  aid  them 
in  obtaining  their  shares,  but  will  leave 
the  parties  in  the  position  where  they  have 
I'laccd  themselves.  Mitchell  v.  Cline,  84 
Cal.  409;  24  Pac.  KM. 

Necessary  parties  defendant.  Where  a 
mortgagee  had  no  lien  when  an  action  for 
partition  was  begun,  the  plaintiff  therein 
is  not  bound  to  make  him  a  party  thereto; 
but  such  mortgagee  may  intervene  in  the 
suit  and  set  up  his  mortgage  lien,  and  have 
it  adjusted  in  the  j)artition  decree.  Towle 
V.  Quinn,  141  Cal.  382;  74  Pac.  1046. 

Averments  necessary  in  answer.  Where 
the  defendant  in  iiartition  proceedings  has 
two  deeds,  each  purporting  to  convey  an 
undivided  two-thirds  of  the  proi)erty,  and 
one  of  them  was  given  as  a  substitute  for 
the  other,  that  fact  must  })e  averred:  the 
statute  does  not  provide  that  rights  such 
as  these  may  be  tried  or  determined  with- 
out being  put  in  issue.  Miller  v.  Sharp, 
48  Cal.  394. 

Findings.  In  jiartition  proceedings,  it  is 
not  necessary  to  find  specifically  whether 
there  has  been  an  ouster  of  their  co-ten- 
ants, on  the  part  of  those  who  successfully 
plead  the  statute  of  limitations:  the  find- 
ing of  the  ultimate  fact,  that  the  statute 
had  run  in  their  favor,  is  all  that  is  neces- 
sarv.  Adams  v.  Hopkins,  144  Cal.  19;  77" 
Pac.  712;  69  Pac.  228. 

Possession  as  affecting  proceeding.  In 
partition,  if  one  party  is  in  possession  and 
the  other  out  of  possession,  the  judgment 
determines  the  rights  of  the  parties  as 
though  each  were  in  ])ossession.  Buhr- 
meister V.  Buhrmeister,  10  Cal.  A])p.  392; 
102  Pac.  221.  An  action  for  partition  is 
not  affected  by  the  fact  that  the  complaint 
shows  the  adverse  possession  of  a  co-ten- 
ant. Varni  v.  Devoto,  10  Cal.  App.  304; 
101  Pac.  934.  Partition  may  be  had  sub- 
ject to  temporary  possession  under  a  lease. 
Buhrmeister  v.  Buhrmeister,  10  Cal.  App. 
392;  102  Pac.  221. 

Effect  of  conveyance  by  tenant  in  com- 
mon. A  tenant  in  common,  after  a  con- 
veyance of  a  specific  parcel  of  the  general 
tract,  is  often  mentioned  as  a  tenant  in 
common  of  the  general  tract,  but  this  is 
not  true  in  any  sense,  nor  for  any  pur- 
pose: the  remaining  tenants  in  common, 
in  applying  for  a  partition,  are  entitled 
to  the  same  relief,  in  every  respect,  that 
they  could  demand  were  the  special  loca- 
tions remaining  in  the  hands  of  the  ten- 
ant in  common  who  conveyed  them;  and 
the  same  would  be  the  case,  if,  instead 
of  special  locations,  the  tenant  in  common 
had  conveyed  portions  of  his  undivided 
interest.  Gates  v.  Salmon,  35  Cal.  570;  95 
Am.  Doc.  139. 

Statute  of  frauds.  An  oral  agreement, 
prior  to  partition,  for  a  right  of  way  across. 


§760 


ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY. 


928 


one  of  the  pieces,  concerns  an   interest  in  CODE  COMMISSIONERS'  NOTE     See  note  to 

,        ^    .  J    ■  •  1  i„<.v,„   o  +  n+,ifQ         S  753,  ante;   Morenhout  v.  Higuera,   32  Cal.  289 

real  estate,  and  is  void,  under  the  statute        »,^  ^^^^^  '^    ^^   ^^^^^^   27   Cal.   331;    87  Am. 

of  frauds.     Oliver   v.  Burnett,   10   Cal.   App.         Dec.     81.      Title     may     be    tried    in    this    action. 
403*  102  Pac.  223.  Bollo  v.  Xavan-o,  33  Cal.  459. 

§  760.  Partial  partition.  Whenever  from  any  cause  it  is,  in  the  opinion 
of  the  court,  impracticable  or  highly  inconvenient  to  make  a  complete  par- 
tition, in  the  first  instance,  among  all  the  parties  in  interest,  the  court  may 
first  ascertain  and  determine  the  shares  or  interest  respectively  held  by  the 
original  co-tenants,  and  thereupon  adjudge  and  cause  a  partition  to  be 
made,  as  if  such  original  co-tenants  w^ere  the  parties,  and  sole  parties,  in 
interest,  and  the  only  parties  to  the  action,  and  thereafter  may  proceed  in 
like  manner  to  adjudge  and  make  partition  separately  of  each  share  or  por- 
tion so  ascertained  and  allotted  as  between  those  claiming  under  the  origi- 
nal tenant  to  whom  the  same  shall  have  been  so  set  apart,  or  may  allow 
them  to  remain  tenants  in  common  thereof,  as  they  may  desire. 


Legislation  §  760.  Enacted  March  11,  18T3 
(based  on  Practice  Act,  §  272,  as  amended  by 
Stats.  1865-66,  p.  705),  substitutins:  (1)  "is" 
for  "shall  have  become"  before  "in  the  opinion 
of  the  court,"  and  (2)  "the  court  may"  for  "it 
shall  be  lawful  for  the  court  to";  (3)  omitting 
"to"  before  "adjudge";  (4)  substituting  "may" 
for  "to"  before  "proceed";  and  (5)  inserting 
"may"  before  "allow." 

Construction  of  section.  This  section 
makes  provision  for  cases  where,  by  reason 
of  the  impracticability  or  inconvenience  of 
doing  otherwise,  the  court  may  set  apart 
portions  or  parcels  to  co-tenants,  subse- 
quently segregating  the  interests  of  such 
co-tenants.  Baldwin  v.  Foster,  157  Cal. 
643;  108  Pac.  714.  After  the  court  has 
ascertained  who  are  tenants  in  common, 
between  whom  the  land  is  to  be  parti- 
tioned, it  must  ascertain  and  determine 
the  respective  rights  and  interests  of  each 
of  the  tenants  in  common,  and  adjudge 
partition  between  them  according  to  their 
respective  rights.  Emeric  v.  Alvarado,  64 
Cal.  529,  629;  2  Pac.  418;  90  Cal.  444;  27 
Pac.  356.  This  section  is  intended  to 
allow,  and  does  allow,  two  partitions, — 
one  between  the  original  co-tenants,  and 
tlie  other  between  all  the  parties  to  the 
action;  after  the  first  partition  is  made, 
which  is  allowed  as  an  aid  to  accomplish 
the  second  one,  the  court  is  authorized  to 
proceed,  in  like  manner,  to  adjudge  and 
make  partition  separately  of  each  share 
or  portion  so  ascertained  and  allotted  as 
between  those  claiming  under  the  original 
tenant,  to  whom  the  same  shall  have  been 
so  set  apart;  but  there  is  but  one  judg- 
ment. Emeric  v.  Alvarado,  64  Cal.  529;  2 
Pac.  418. 

Interlocutory  decree.  Whether,  in  pro- 
ceedings by  co-tenants  for  a  partition  of 
real  property,  a  partition  is  to  be  ordered 
or  a  sale  directed,  it  is  indispensable  that 
a  tlecree,  interlocutory  in  its  character,  be 
first  entered,  definitely  ascertaining  the 
rights  and  interests  of  the  respective  par- 
ties in  the  subject-matter;  in  case  a  sale 
is  to  be  directed,  it  is  impossible  for  any 


party,  in  the  absence  of  such  an  inter- 
locutory decree,  to  know  whether  he  is  in- 
terested in  maintaining  or  in  resisting  the 
proceedings.  Lorenz  v.  Jacobs,  53  Cal.  24. 
In  an  action  for  partition,  only  one  inter- 
locutory decree  or  judgment  is  provided 
for  by  the  code;  under  this  section,  the 
court  may,  as  preliminary  and  ancillary 
to  the  judgment,  and  as  an  aid  in  reach- 
ing it,  ascertain  and  determine  the  shares 
and  interests  respectively  held  by  the 
original  co-tenants,  and  cause  a  partition 
to  be  made  as  if  such  original  co-tenants 
were  the  sole  parties  in  interest;  it  must 
then  proceed  to  adjudge  and  determine 
the  share  or  portion  of  each  party  to  the 
cause;  an  interlocutory  decree  or  judgment 
may  then  be  made  and  entered,  which  shall 
adjudge  and  clearly  set  forth  the  rights 
and  shares  of  each  of  the  parties  to  the 
action;  these  shares  must  be  so  specified 
and  declared  in  the  decree,  that  the  ref- 
erees who  may  be  appointed  to  make  the 
partition  may  divide  and  allot  the  several 
portions  to  each  of  the  parties  without 
having  to  determine  any  question  of  title; 
all  such  questions  must  be  determined  by 
the  court.  Emeric  v.  Alvarado,  64  Cal. 
529;  2  Pac.  418.  The  eflfect  of  an  inter- 
locutory decree  is  merely  to  determine  the 
relative  rights  of  the  respective  parties 
to  the  action  in  the  entire  tract,  but  it 
does  not  accomplish  any  severance  of  pos- 
session: it  is  thereafter  necessary  that  a 
partition  according  to  these  respective 
rights  shall  be  made,  and  the  particular 
share  of  each  party  allotted  to  him;  and, 
until  this  is  done  by  final  judgment,  it 
cannot  be  known  to  which  of  the  par- 
ties any  particular  parcel  will  fall,  and 
therefore,  prior  to  such  segregation,  there 
can  be  no  adverse  holding  of  any  portion 
by  either  party  to  the  action  against  any 
of  the  other  parties  thereto.  Christy  v. 
Spring  Valley  Water  Works,  97  Cal.  21; 
31  Pac.  1110. 


929  LIENS,   ETC. — RErERKE — NOTICE — P.MM  ITION,    ETC.  §§  761-763 

§761.  Rights  of  lienholders.  Appointment  of  referee.  If  it  appears  to 
the  court  that  there  are  outstandiiii,'  liens  or  eneiunbrances  of  record  upon 
such  real  property,  or  any  part  thereof,  which  existed  and  were  of  record 
at  the  time  of  the  commencement  of  the  action,  and  the  persons  holdinj; 
such  liens  are  not  made  parties  to  the  action,  the  court  must  either  order 
such  persons  to  be  made  parties  to  the  action,  by  an  amended  or  supple- 
mental com])laint,  or  appoint  a  referee  to  ascertain  whether  or  not  such 
liens  or  encumbrances  have  been  paid,  and  if  not  paid,  what  amount  re- 
mains due  thereon,  and  their  order  amonp:  the  liens  or  encumljrances  sev- 
erally held  by  such  persons  and  the  parties  to  the  action,  and  whether  the 
amount  remaining'  due  thereon  has  been  secured  in  any  manner,  and  if 
secured,  the  nature  and  extent  of  the  security. 

Legislation  8  761.  1.  Enacted  March  11.  1872  ment  of  any  person  who  may  have  examined  or 
(based  on  Practice  Act,  §  273,  as  amended  by  searched  the  records"  after  "If  it  appears  to  the 
Stats.  18fi2,  p.  88),  (1)  substituting  (a)  "uP;  court";  (2)  omitting  "or  portion"  before  "there- 
pears"  for  "shall  appear,"  in  first  line,  (b)  "the[|  of";  (3)  substituting  (a)  "amended"  for  "amend- 
for  "said"  before  "action,"  (c)  "must"  for  "shall  '  ment."  and  (b)  "and"  for  "or"  before  "if  not 
after  "court,"  (d)  "such"  for  "the  said"  before  paid";  the  code  commissioner  saving,  "Omitting 
"persons,"  and  (2)  omitting  "said"  before  "ac-  after  'court'  the  words  "by  the  certificate  of  th« 
tion."  county  recorder  or  of  the  county  clerk,  or  by  the 

2.  Amendment  by  Stats.  1901,  p.  161;  un-  sworn  or  verified  statement  of  any  person  who 
constitutional.     See  note  ante,  §  .').  may   have   seaiched    the   records,'    leaving    the    ex- 

3.  Amended  by  Stats.  1907,  p.  604,  (1)  omit-  istence  of  the  liens  to  be  established  by  any  corn- 
ting  "by  the  certificate  of  the  county  recorder  or  petent  evidence." 

county  clerk,   or   by  the  sworn  or  verified   state- 

§  762.  Lienholders  must  be  notified  to  appear  before  the  referee  ap- 
pointed. The  plaintiff  must  cause  a  notice  to  be  served,  a  reasonable  time 
previous  to  the  day  for  appearance  before  the  referee  appointed  as  pro- 
vided in  the  last  section,  on  each  person  having  outstanding  liens  of  record, 
who  is  not  a  party  to  the  action,  to  appear  before  the  referee  at  a  specified 
time  and  place,  to  make  proof,  by  his  own  affidavit  or  otherwise,  of  the 
amount  due,  or  to  become  due,  contingently  or  absolutely  thereon.  In  case 
such  person  be  absent,  or  his  residence  be  unknown,  service  may  be  made 
by  publication  or  notice  to  his  agents,  under  the  direction  of  the  court,  in 
such  manner  as  may  be  proper.  The  report  of  the  referee  thereon  must 
be  made  to  the  court,  and  must  be  confirmed,  modified,  or  set  aside,  and  a 
new  reference  ordered,  as  the  justice  of  the  case  may  require. 

Legislation  g  762.  Enacted  March  11,  1872;  "must"  for  "shall,"  in  all  instances,  and  (2) 
l)ased    on    Practice    Act,  §  274,     (1)     substituting         omitting  "true"   before   "amount   due." 

§  763.  Partition  of  real  property.  Referees.  In  incorporated  city. 
Action  of  court.  Sale.  Deed.  In  case  of  death  of  party.  Attorney's  fees. 
If  it  appears  by  the  evidence,  w^hether  alleged  in  the  complaint  or  not,  that 
the  property  or  any  part  of  it  is  so  situated  that  partition  cannot  be  made 
without  great  prejudice  to  the  owners,  the  court  may  order  the  sale  thereof; 
otherwise,  upon  the  requisite  proofs  being  made,  it  must  order  a  partition 
according  to  the  respective  rights  of  the  parties  as  ascertained  by  the  court, 
iind  appoint  three  referees  therefor,  and  must  designate  the  portion  to  remain 
undivided  for  the  owners  whose  interests  remain  unknown,  or  are  not  ascer- 
tained ;  or  the  court,  with  the  consent  of  the  parties,  may  appoint  one  referee 
instead  of  three,  and  he  when  appointed,  has  all  the  powers  and  may  per- 
form all  the  duties  required  of  three  referees ;  and  the  court  must  appoint  as 
referee  any  person  or  persons  to  whose  appointment  all  the  parties  have  con- 
sented, and  no  person  shall  be  appointed  as  referee  who  is  disqualified  from 
acting  as  an  appraiser  under  the  provisions  of  section  fourteen  hundred 

1  Fair.— 59 


5  763  ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY.  930 

forty-four  of  the  Code  of  Civil  Procedure.  When  the  site  of  an  incorporated 
city  or  toAvn  is  included  with  the  exterior  boundaries  of  the  property  to  be 
partitioned,  the  court  must  direct  the  referees  to  survey  and  appraise  the 
entire  property  to  be  partitioned  by  actual  lots  and  subdivisions  then  exist- 
ing in  the  actual  possession  of  the  several  tenants  in  common,  exclusive  of 
the  value  of  improvements  thereon,  first  setting  apart  necessary  portions 
of  the  property  for  ways,  roads,  and  streets,  as  in  section  seven  hundred 
sixty-four  provided,  and  to  report  such  survey  and  separate  appraisement 
on  each  lot  and  subdivision  to  the  court.  The  court  may  confirm,  change, 
modify,  or  set  aside  the  report  in  whole  or  in  part,  and  if  necessary  appoint 
new  referees.  When,  after  the  final  confirmation  of  the  report  of  such  sur- 
vey and  appraisement,  it  appears  by  evidence  to  the  satisfaction  of  the 
court  that  an  equitable  partition  of  the  whole  property  is  impracticable, 
and  a  sale  of  the  site  of  such  city  or  town,  or  any  portion  thereof,  will  be 
for  the  best  interests  of  the  owners  of  the  whole  property,  it  must  order  a 
sale  thereof ;  provided,  that  within  sixty  days  thereafter  any  tenant  in  com- 
mon, or  tenants  in  common,  having  improvements  erected  on  any  town  or 
city  lot  or  subdivision  included  in  such  order  of  sale,  shall  have  the  prior 
right  to  purchase  the  same  at  such  appraised  valuation,  and  may  pay  into 
court  the  amount  so  appraised  as  the  value  thereof,  and  upon  such  payment 
the  title  shall  vest  in  such  purchaser  or  purchasers,  and  the  court  shall 
cause  to  be  executed  by  such  referees  a  deed  for  such  lot  or  subdivision  in 
fee  and  in  severalty  to  such  purchaser  or  purchasers ;  such  further  proceed- 
ings shall  then  be  had  as  to  the  remainder  of  the  property,  and  the  money 
so  paid  to  the  court,  as  by  this  chapter  provided.  If,  during  the  pendency 
of  the  action,  any  of  the  parties  die,  or  become  insane,  or  otherwise  incom- 
petent, the  proceedings  shall  not  for  that  caiise  be  delayed  or  suspended, 
but  the  attorney  who  has  appeared  for  such  party  may  continue  to  repre- 
sent such  interest ;  and  in  case  any  such  party  has  not  appeared  by  an  at- 
torney, the  court  must  appoint  an  attorney  to  represent  the  interest  which 
was  held  by  such  party,  until  his  heirs  or  legal  representatives,  or  succes- 
sors in  interest,  shall  have  appeared  in  the  action ;  and  an  attorney  so  ap- 
pointed must  be  allowed  by  the  court  a  reasonable  compensation  for  his 
services,  which  may  be  taxed  as  costs  against  the  share  or  interest  repre- 
sented by  such  attorney,  and  may  be  adjudged  a  lien  thereon  in  the  dis- 
cretion of  the  court. 

Sale,  proceedings  on.     Post,  §§  770-795.  (2)    "must"    substituted   for    "shall,"    in   both    in- 

Partition   of  dominant  tenement,   burden   must  stances. 

be  apportioned.    Civ.  Code,  §  807.  2.   Amended  by  Code  Amdts.  1880,  p.  60,  (1) 

Referees.     Post,  §  797.  ^^^    iirst    sentence,    before    "that    the    property," 

Modifying  decree.    Post,  §  766.  readins.    "If    it   be    alleged   in    the    complaint    and 

established    bv    evidence,    or   if   it    appear    by    the 

Legislation  §  763.  1.  Enacted  March  11,  1873;  evidence  without  such  allegation  in  the  complaint 
based  on  Practice  Act,  §  275,  which  read:  ']If  it  to  the  satisfaction  of  the  court";  (2)  the  same 
be  alleged  in  the  complaint,  and  be  established  sentence  had  the  word  "a"  instead  of  "the,"  be- 
by  evidence,  or  if  it  appear  by  the  evidence  with-  fore  "sale  thereof";  and  (3)  after  "or  are  not 
out  such  allegation,  in  the  complaint,  to  the  satis-  ascertained"  and  before  "direct  the  referees,"  the 
faction  of  the  court,  that  the  property,  or  any  section  read,  "provided,  that  when  the  site  of  an 
part  of  it,  is  so  situated  that  partition  cannot  be  incorporated  city  or  town  is  included  within  the 
made  without  great  prejudice  to  the  owners,  the  exterior  boundaries  of  the  property  to  be  parti- 
court  may  order  a  sale  thereof.  Otherwise,  upon  tioned,  then  on  said  fact  being  established  by  evi- 
the  requisite  proofs  being  made,  it  shall  order  a  dence  the  following  proceedings  shall  be  had. 
partition,  according  to  the  respective  rights  of  The  court  shall  thereupon"  ;  (4)  in  sentence  begin- 
the  parties,  as  ascertained  by  the  court,  and  ap-  ning,  "The  court  must,"  after  "section  seven  hun- 
point  three  referees  therefor;  and  shall  designate  dred  [and]  sixty-four,"  the  words  "of  this  code" 
the  portion  to  remain  undivided  for  the  owners  were  used;  (5)  the  sentence  beginning  "Wherij 
whose  interests  remain  unknown,  or  are  not  as-  after,"  (a)  "shall  appear"  instead  of  "appears," 
certained."  When  §  7G3  was  enacted  in  1872,  (b)  "shall"  instead  of  "must,"  before  "order  a 
(1)    "be"   was   omitted  before   "established,"   and  sale,"    and    (c)    "said"   instead   of   "such,"   before 


931 


REFEREE — PARTITION — RIGHTS   UNDETERMINED — APPEAL. 


§7G3 


"referees";  (6)  the  sentence  becinniiic  "If.  di.""- 
ing,"  had  "shall"  instead  of  "must,"  in  both  in- 
stances. 

3.  Amendment  by  Stats.  1901,  p.  161;  un- 
constitutional.    Sec  note  ante,  §  .'). 

4.  Amended  by  Slats.  1907.  p.  605;  the  code 
commissioner  savinp,  "The  cliaiiKes  are  omittinR 
the  words  'If  it"  be  alleged  in  the  complaint  and 
establi.shed  by  evidence,  or  if  it  a*i)penr  by  the 
evidence  without  such  allegation  in  the  compliiint 
to  the  satisfaction  of  the  court,'  and  substituling 
therefor.  'If  it  appears  by  the  evidence,  whether 
alleRed  in  the  complaint  or  not';  and  inserting  the 
matter  in  former  §  T!I7.  authorizing  the  court  to 
appoint  one  referee  instead  of  three." 

5.  Amended  by  Stats.  1913,  p.  235,  (1)  in- 
serting at  the  end  of  the  first  sentence,  after 
"duties  required  of  three  referees,"  the  clause, 
"and  the  court  must  appoint  as  referee  a  new 
person  or  persons  to  whose  appointment  all  the 
parties  have  consented,  and  no  person  shall  bo 
appointed  as  referee  who  is  disqualified  from  act- 
ing as  an  appraiser  under  the  provisions  of  sec- 
tion fourteen  hundred  forty-four  of  the  Code  of 
Civil  Procedure";  (2)  in  second  sentence,  strik- 
ing out  the  conjunction  "and"  in  the  section  num- 
ber. 

Consent  to  appointment  of  a  single  ref- 
eree. The  parties  may  consent  to  the  ap- 
pointment of  a  single  referee  to  make 
partition,  and  a  deeree  reciting  such  con- 
sent is  not  objectionable  because  certain 
of  the  parties  were  minors,  if  the  record 
shows  that  they  appeared  by  general 
■guardian.  Richardson  v.  Loupe,  80  Cal. 
490;  22  Pac.  227.  The  objection  that  a 
single  referee  was  appointed,  instead  of 
three,  cannot  be  collaterally  urged;  when 
the  interlocutory  decree  recites  that  the 
appointment  of  one  referee  was  made  with 
the  consent  of  all  the  parties,  that  is  suffi- 
cient to  sustain  it,  even  if  the  appointment 
were  in  fact  irregularly  made.  Baldwin 
V.  Foster,  157  Cal.  643;  108  Pac.  714. 

Irregular  appointment  of  a  single  ref- 
eree. In  partition  jiroceedings,  the  irregu- 
lar appointment  of  but  one  referee  will 
not,  upon  a  collateral  attack,  avoid  the 
judgment.  Baldwin  v.  Foster,  157  Cal. 
643;  lOSPac.  71-1. 

Proof  of  necessity  for  sale.  Whether  or 
not  a  partition  can  be  made  without  great 
prejudice  to  the  owners,  is  a  question  of 
fact,  the  decision  of  which  is  not  to  be 
aided,  by  judicial  notice  of  any  fact  or 
circumstance  not  proved;  and  the  party 
asking  for  a  sale,  instead  of  a  partition, 
has  the  burden  of  proving  that  a  partition 
cannot  be  made  without  great  prejudice  to 
the  owners.  Mitchell  v.  Cline,  84  Cal.  409; 
24  Pac.  164. 

Complaint  not  alleging  necessity  for  sale. 
From  the  language  of  this  section,  it  seems 
to  be  contemplated  that  the  court  may  in- 
vestigate the  question  as  to  whether  a  sale 
is  requisite  to  avoid  great  prejudice  to 
the  owners,  even  in  the  absence  of  any 
allegation  in  the  complaint  to  that  effect. 
Bartlett  v.  Mackey,  130  Cal.  181;  62  Pac. 
482. 

Discretion  of  court.  The  power  of  the 
court,  where  a  sale  is  necessary,  is  not 
greater   than   where   a  partition   is   to   be 


made,  nor  is  tlie  discretion  to  be  exercised 
(lifferent  in  su<h  case;  and  if  the  court 
orders  a  ])artition  of  the  rights  of  the  par- 
tics  to  the  pro|)erty  as  tenants  for  years, 
it  is  not  incumbent  upon  it,  nor  even 
pro])er,  to  award  either  to  the  plaintiff  or 
to  a  defendant  any  share  or  interest  with 
another  defendant  in  the  reversion,  .fame- 
son  V.  Ilavward,  106  Cal.  682;  46  Am.  St. 
Rep.  268;  :?9  Pac  1078. 

Partition  ordered  when.  Courts  favor  a 
partition  in  kind,  where  it  is  practicable; 
owners  of  real  estate  should  not  be  de- 
prived of  their  title,  unless  a  sale  thereof 
is  necessary  to  prevent  great  prejudice  to 
the  owners.  Muller  v.  Muller,  14  Cal.  App. 
347;  112  Pac.  200.  Partition  cannot  be 
allowed  where  injustice  and  wrong  would 
result  from  it,  on  account  of  part  of  the 
land  being  subject  to  a  homestead.  Mills 
v.  Stump,  20  Ca'l.  App.  84;  128  Pac.  349. 

Decree  of  sale  leaving  certain  rights 
undetermined.  Where  the  court  has  de- 
tiMiiiined  all  matters  over  which  it  has 
jurisdiction,  and  has  definitely  ascertained 
all  the  interests  of  all  the  co-tenants,  ex- 
cept only  the  issues  between  the  contest- 
ing claimants  in  the  probate  court  of  the 
interest  of  a  deceased  co-tenant,  over 
which  issues  it  has  no  jurisdiction,  and 
the  premises  must  be  sold  in  or<ler  to  effect 
a  just  division,  a  decree  of  sale  leaving 
the  rights  of  such  contesting  claimants  to 
be  determined  in  the  court  having  juris- 
diction thereof,  is  proper,  is  warranted  by 
the  general  law  of  partition,  and  is  not 
violative  of  anv  provision  of  the  code. 
Grant  v.  Murphv,  116  Cal.  427;  58  Am. 
St.  Rep.   188;  48  Pac.  481. 

Merger.  In  an  action  for  a  partition, 
equity  will  prevent  or  permit  a  merger, 
as  will  best  subserve  the  purposes  of  jus- 
tice and  the  actual  and  just  intent  of  the 
parties,  and,  in  the  absence  of  an  expres- 
sion of  intention,  if  the  interest  of  the 
person  in  whom  the  several  estates  have 
united  would  be  best  subserved  by  keep- 
ing them  separate,  the  intent  to  do  so  will 
ordinarily  be  implied;  and  the  interest  of 
a  tenant  in  comtnon  in  an  estate  for  years, 
which  is  subject  to  the  partition,  will  not 
be  held  to  have  been  merged  in  the  rever- 
sion owned  by  the  same  person.  Jameson 
V.  Ilavward,  106  Cal.  682;  46  Am.  St.  Rep. 
2()S;  39  Pac.  1078. 

Appeal.  An  appeal  from  a  decree  in  par- 
tition, pending  i)roceedings  for  its  modi- 
fication, is  premature:  the  modified  decree 
is  the  only  appealable  judgment.  Bixby 
V.  Bent,  59  Cal.  522.  Under  this  section, 
a  notice  of  appeal  in  an  action  for  parti- 
tion may  be  served  upon  the  attorney  of 
record  of  another  party,  notwithstamling 
the  death  of  such  party  prior  to  the  ap- 
jieal;  and  such  notice  may  be  served  upon 
the  original  attorney  of  recor<l,  where 
there   has   been    no   substitution,   notwith- 


§  764  ACTIONS  FOR  PARTITION  OF  REAL.  PROPERTY.  •     932 

standinf^    another    attorney    may    have    ap-  Allowance  for  improvements  in  partition.    See 

peared    and    signed    an    amended    pleading  ""^es  62  Am.  Dec.  484;  81  Am.  St.  Rep.  185. 

for  such  party.    Lacoste   v.   Eastland,   117  CODE  COMMISSIONERS'  NOTE.   See  subd.  3 

Cal.  673;  49  Pac.  1046.  ^^  """^'^  t°  §  "2,  ante. 

§  764.  Partition  must  be  according  to  rights  of  j/arties.  Sale  of 
undivided  interests.  Allotment  of  shares  of  each  party.  In  making  parti- 
tion, the  referees  must  divide  the  property,  and  allot  the  several  portions 
thereof  to  the  respective  parties,  quality  and  quantity  relatively  considered, 
according  to  the  respective  rights  of  the  parties  as  determined  by  the  court, 
pursuant  to  the  provisions  of  this  chapter,  designating  the  several  portions 
by  proper  landmarks,  and  may  employ  a  surveyor  with  the  necessary  assist- 
ants to  aid  them.  Before  making  partition  or  sale,  the  referees  may,  when- 
ever it  will  be  for  the  advantage  of  those  interested,  set  apart  a  portion  of 
the  property  for  a  way,  road,  or  street,  and  the  portion  so  set  apart  must 
not  be  assigned  to  any  of  the  parties  or  sold,  but  must  remain  an  open  and 
public  way,  road,  or  street,  unless  the  referees  shall  set  the  same  apart  as 
a  private  way  for  the  use  of  the  parties  interested,  or  some  of  them,  their 
heirs  and  assigns,  in  which  case  it  shall  remain  such  private  way.  When- 
ever the  referees  have  laid  out  on  any  tract  of  land  roads  sufficient  in  the 
judgment  of  said  referees  to  accommodate  the  public  and  private  wants, 
they  must  report  that  fact  to  the  court,  and  upon  the  confirmation  of  their 
report  all  other  roads  on  said  tract  cease  to  be  public  highways.  When- 
ever it  appears,  in  an  action  for  partition  of  lands,  that  one  or  more  of  the 
tenants  in  common,  being  the  owner  of  an  undivided  interest  in  the  tract 
of  land  sought  to  be  partitioned,  has  sold  to  another  person  a  specific  tract 
by  metes  and  bounds  out  of  the  common  land,  and  executed  to  the  pur- 
chaser a  deed  of  conveyance,  purporting  to  convey  the  whole  title  to  such 
specific  tract  to  the  purchaser  in  fee  and  in  severalty,  the  land  described  in 
such  deed  shall  be  allotted  and  set  apart  in  partition  to  such  purchaser,  his 
heirs  or  assigns,  or  in  such  other  manner  as  shall  make  such  deed  effectual 
as  a  conveyance  of  the  whole  title  to  such  segregated  parcel,  if  such  tract  or 
tracts  of  land  can  be  so  allotted  or  set  apart  without  material  injury  of  the 
rights  and  interests  of  the  other  co-tenants  who  may  not  have  joined  in 
such  conveyance.  In  all  cases  it  is  the  duty  of  the  referees,  in  making  par- 
tition of  land,  to  allot  the  share  of  each  of  the  parties  owning  an  interest 
in  the  whole  or  in  any  part  of  the  premises  sought  to  be  partitioned,  imd  to 
locate  the  share  of  each  co-tenant,  so  as  to  embrace  as  far  as  practicable  the 
improvements  made  by  such  co-tenant  upon  the  property,  and  the  value  of 
the  improvements  made  by  the  tenants  in  common  must  be  excluded  from 
the  valuation  in  making  the  allotments,  and  the  land  must  be  valued  with- 
out regard  to  such  improvements,  in  case  the  same  can  be  done  without 
material  injury  to  the  rights  and  interests  of  the  other  tenants  in  common 
owning  such  land. 

Legislation  8  764.     1.  Enacted  March  11,  1872  ;  3.   Amended  by  Code  Amdts.  1873-74,  p.  325, 

based    on    Practice    Act,    §    276,    as    amended    by  (1)     in    first    sentence,    changing    "assistants"    to 

Stats.    1865-66,   p.  705,   which   read:'  "In   making  "assistance,"    and    (2)    adding  sentence   beginning 

the   partition    the    referees    shall   divide    the   prop-  "Before  making"  and  ending   "private  way, "which 

erty  and  allot  the  several  portions  thereof  to   the  then  had  the  words  "shall"  instead  of  "must,"  in 

respective  parties,  quality  and  quantity  relatively  both    instances 

considered,    according   to   the   re^spective   rights   of  ^     Amended' bv   Code   Amdts.   1875-76.  p.  96, 

the  parties  as  determined  by  the  court,   pursuant  making  another  addition,  beginning  with  the  words 

to  the  provisions  of  this  chapter    designating  the  "Whenever  the  referees."   and  reading  as  at  pres- 

several   portions    by    proper    landmarks,    and    may  ^^  ^^^  ^1^^  changes  of  1907. 

employ   a   survevor  with   the   necessary   assistants  '      .  j         .  v     o.   .      ■tt^t\t  i  eo     „ 

to  aid  them."      When   §   764  was  enacted  in  1872,  4.    Amendment  by  Stats    1901,  p.  162;  uncon- . 

"shall"  was  changed  to   "must."  stitutional.    See  note  ante.  §  5. 


933 


REFEREE — REPORT    CONFIRMED,    ETC. JUDGMENT,    ETC.       §§7()5,  766 


5.  Amended  by  Stats.  1907,  p.  G06,  (1)  in 
first  sentence,  changing  "assistance"  to  "assist- 
ants"; (2)  in  sentence  beginning  "Before  mak- 
ing," changing  "sliall"  to  "must"  before  "not  be" 
and  before  "remain";  (3)  in  sentence  beginning 
"Whenever  the  referees,"  (a)  changing  "shall" 
to  "must"  after  "they,"  and  (b)  omitting  "shall" 
before  "cease";  (4)  changing  "appears,"  in  words 
"Whenever  it  appears,"  from  "shall  appear";  (f)) 
beginning  a  new  sentence  with  the  words  "In  all 
cases,"  and  changing  the  first  words  to  read  as 
at  present,  from  "iirovided,  that  in  all  cases  the 
court  shall  direct  the  referees,"  and,  in  this  sen- 
tence, (a)  adding  the  word  "the"  before  "allot- 
ments," (b)  clianging  "improvement"  to  "im- 
provements," and  (c)  changing  "to"  to  "of"  after 
"interests" ;  the  code  commissioner  saying,  "The 
amendment  consists  in  declaring  what  sliall  be 
the  duties  of  the  referees,  instead  of  requiring 
those  duties  to  be  inserted  in  each  decree." 

Agreement  for  partition,  validity  of.  A 
j)artial  agreement  for  the  ptirtition  of 
laiuis  is  void,  under  the  statute  of  frauds, 
aud  eanuot  be  enforced;  but,  where  con- 
summated and  ratified  by  the  parties 
thereto,  it  will  be  upheld.  Gordon  v.  San 
Die^o,  101  Cal.  522;  40  Am.  St.  Kep.  73; 
36  Pae.  18. 

Title  and  rights  of  purchaser  of  specific 
parcel  from  co-tenant.  The  title  of  the 
]iurc'haser  of  a  specific  parcel  is  good 
against    all    the    world,    except    the    other 


tenants  in  coiiuiion,  and  as  to  tliem,  it  is 
subject  to  the  contingency  of  being  taken 
by  them,  if  it  should  be  found  necessary 
to  do  so,  in  order  to  make  a  proper  jiarti- 
tion  of  the  general  tract.  Gates  v.  Salmon, 
35  Cal.  576;  95  Am.  Dec.  139.  All  the 
authorities  are  to  the  effect  that  a  sale 
by  a  tenant  in  common,  by  specific  bounds, 
of  a  portion  of  the  lainl  held  in  common, 
is  not  binding  ujjon  his  co-tenant,  unless 
ratified  bv  him.  Gordon  v.  San  Diego,  101 
Cal.  522;  "40  .\m.  St.  Uep.  7:!;  ."'-<)  I'ac.  is. 

Partition  where  moieties  are  specified. 
Where  the  moieties  in  which  a  jiartition  is 
to  be  made  are  specified  in  the  first  .judg- 
me'nt,  and  a  writ  de  jiartitione  faciemla 
issued  thereon  in  the  action  at  law  and 
in  the  first  judgment,  and  a  commission 
issued  thereon  in  the  suit  in  chancery,  in 
neither  case  are  the  shares  of  interest  of 
the  parties  nor  any  matter  of  title  to  be 
determined  by  the  sheriff  in  the  one  case 
nor  by  the  commissioners  in  the  other. 
Kmeric  v.  Alvarado,  64  Cal.  529;  2  Pac. 
418. 

CODE   COMMISSIONERS'  NOTE.     See  subd.  2 

of  note  to  §  75'J,  ante. 


§  765.  Referees  must  make  a  report  of  their  proceedings.  The  referees 
must  make  a  report  of  their  proceedings,  specifying  therein  the  manner  in 
which  they  executed  their  trust,  and  describing  the  property  divided,  and 
the  shares  allotted  to  each  party,  with  a  particular  description  of  each 
share.  Any  party  to  the  action,  after  giving  at  least  ten  days'  notice  in 
writing  to  the  other  parties  who  have  appeared  therein  of  his  intention  to 
do  so,  may  move  the  court  to  confirm,  change,  modify,  or  set  aside  such 
report. 

Report  on  valuation.  A  referee,  ap- 
pointed to  make  partition  after  an  inter- 
locutory decree,  whose  sole  duty  it  is  to 
apportion  and  allot  the  land  between  the 
co-tenants  according  to  their  respective 
interests  as  determined  by  the  court,  and 
to  report  their  proceedings  to  the  court, 
is  not  required  to  go  further,  and  report 
any  valuation,  nor  are  the  parties  entitled 
to  any  hearing  before  him.  Richardson  v. 
Loupe,  80  Cal.  490;  22  Pae.  227. 


Legislation  §  765.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  277,  which  read:  "The 
referees  shall  make  a  report  of  their  proceedings, 
specifying  therein  the  manner  of  executing  their 
trust,  describing  the  property  divided,  and  the 
shares  allotted  to  each  party,  with  a  particular 
description  of  each  share."  When  §  765  was  en- 
acted in  1872,  it  read  the  same  as  the  first  sen- 
tence of  the  present  section. 

2.  Amendment  by  Stats.  1901,  p.  163;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  607;  the  code 
commissioner  saying,  "The  amendment  consists  in 
declaring  that  either  party  may,  upon  ten  days' 
notice  to  the  others,  move  to  confirm,  change, 
modify  or  set  aside  the  report." 

§  766.  Court  may  confirm,  etc..  report.  Judgment  binding  on  whom. 
The  court  may  confirm,  change,  modify,  or  set  aside  the  report,  and  if  neces- 
sary, appoint  new  referees.  Upon  the  report  being  confirmed,  judgment 
must  be  rendered  that  such  partition  be  effectual  forever,  which  judgment 
is  binding  and  conclusive. 

1.  On  all  persons  named  as  parties  to  the  action,  and  their  legal  repre- 
sentatives, who  have  at  the  time  any  interest  in  the  property  divided,  or  any 
part  thereof,  as  owners  in  fee  or  as  tenants  for  life  or  for  years,  or  as  en- 
titled to  the  reversion,  remainder,  or  the  inheritance  of  such  property,  or 
any  part  thereof,  after  the  determination  of  a  particular  estate  therein,  and 
who  by  any  contingenc}'  may  be  entitled  to  a  beneficial  interest  in  the  prop- 


766 


ACTIONS   FOR   PARTITION   OF   REAL   PROPERTY. 


934 


erty,  or  wlio  have  an  interest  in  any  undivided  share  thereof,  as  tenants  for 
years  or  for  life ; 

2.  On  all  persons  not  in  being  at  the  time  said  judgment  is  entered,  who 
have  any  interest  in  the  property  divided,  or  any  part  thereof,  as  entitled 
to  the  reversion,  remainder  or  the  inheritance  of  such  property,  or  any  part 
thereof,  after  the  determination  of  a  particular  estate  therein,  and  who  by 
any  contingency  may  be  entitled  to  a  beneficial  interest  in  the  property; 
provided,  that  in  case  sale  has  been  made  under  the  provisions  of  this 
chapter  the  judgment  shall  provide  for  keeping  intact  the  share  of  the 
proceeds  of  said  sale,  to  which  said  party  or  parties  not  in  being  at  the  time 
are  or  may  be  entitled  until  such  time  as  such  party  or  parties  may  take 
possession  thereof; 

3.  On  all  persons  interested  in  the  projoerty,  who  may  be  unknown,  to 
whom  notice  has  been  given  of  the  action  for  partition  by  publication; 

4.  On  all  other  persons  claiming  from  such  parties  or  persons,  or  either 
of  them. 

And  no  judgment' is  invalidated  by  reason  of  the  death  of  any  party 
before  final  judgment  or  decree ;  but  such  judgment  or  decree  is  as  con- 
clusive against  the  heirs,  legal  representatives,  or  assigns  of  such  decedent, 
as  if  it  had  been  entered  before  his  death.  If  during  the  pendency  of  the 
action,  and  before  final  judgment  therein,  any  of  the  co-tenants  has  con- 
veyed to  another  person  his  interest,  or  any  part  of  his  interest,  such  con- 
veyance, whatever  its  form,  shall  be  deemed  to  have  passed  to  the  grantee 
any  lands  which,  after  its  execution,  may  have  been  set  aside  to  the  grantor 
in  severalty,  or  such  proportionate  interest  in  such  lands  as  the  interest  so 
conveyed  bears  to  the  whole  interest  of  the  grantor. 

Decrees  partitioning  realty  to  be  recorded.    See        portion    of    an    unrlivided    interest    in    the 


Pol.   Code,  §  4134. 

Record    of    decree    as    notice.     See    Pol.    Code, 

§  4135. 

Legislation  §  766.  1,  Enacted  March  11,  1872  ; 
based  on  Practice  Act,  s  278.  as  amended  by 
Stats.  1867-68,  p.  630,  -which  had  (1)  in  intro- 
ductory paragraph,  (a)  "shall"  instead  of  "must" 
before  "be  rendered,"  and  (b)  "shall  be"  instead 
of  "is"  before  "binding";  (2}  in  subd.  2,  "shall 
have"  instead  of  "has";  (3)  in  last  paragraph, 
(a)  "shall  be,"  instead  of  "is,"  before  "invali- 
dated" and  before  "as  conclusive,"  (b)  "de- 
cease," instead  of  "death,"  before  "of  any  party," 
and  (c)  "as  if  such  final  Judgment  were  entered 
before  such  decease,"  instead  of  the  words  at 
end  of  first  sentence  of  present  paragraph.  The 
changes  from  the  original  code  section  are  noted 
infra. 

3.  Amendment  by  Stats.  1901,  p.  164;  uncon- 
stitutional.   See  note  ante,   §  5. 

3.  Amended  by  Stats.  1907,  p.  607,  (1)  in 
subd.  1,  striking  out  the  word  "of"  in  the  phrase 
"or  of  any  part  thereof,"  and  (2)  adding  the  last 
sentence  of  the  final  paragraph;  the  code  commis- 
sioner saying,  "The  amendment  consists  of  the 
last  sentence,  providing  that  a  grantee  of  lands [,  J 
pending  the  suit[,]  takes  the  part  set  aside  to 
his  grantor." 

4.  Amended  by  Stats.  1911,  p.  366,  (1)  at 
end  of  introductory  paragraph,  substituting  a 
period  for  a  colon  (a  clerical  or  typographical 
error);  (2)  adding  subd.  2;  (3)  renumbering  the 
old  subds.  2  and  3,  subds.  3  and  4,  respectively. 

Construction  of  section.  The  words, 
"any  part  thereof,"  in  the  first  subdi- 
vision of  this  section,  necessarily  mean, 
in  the  connection  in  which  they  are  used, 
any   part    of    the   property,    and    not    any 


property:  it  would  be  very  inconsistent, 
if  not  absurd,  that  the  judgment  should 
be  conclusive  on  those  who  were  not  proper 
parties  to  the  action.  Gates  v.  Salmon,  35 
Cal.  576;  95  Am.  Dec.  139. 

Referee's  report,  power  of  court  over. 
It  is  not  required  that  a  referee  shall  re- 
port a  valuation  of  the  whole,  or  of  any 
allotment,  or  for  any  hearing  of  the  par- 
ties before  him;  but  if  any  contest  should 
arise  as  to  the  relative  value  of  the  several 
allotments,  or  as  to  the  justice  of  the  ref- 
eree's report  in  any  other  respect,  the  set- 
tlement of  such  dispute  is  to  be  had  before 
the  court,  which  has  full  power  to  confirm, 
change,  modify,  or  set  aside  his  report. 
Eichardson  v.  Loupe,  80  Cal.  490;  22  Pac. 
227. 

Confirming  sale,  discretion  of  court  in. 
The  purchaser  at  a  ju<licial  sale  in  a  par- 
tition suit,  while  assuming  legal  obliga- 
tions, acquires  legal  rights,  which  are  to 
be  protected  and  enforced  just  as  the 
rights  of  others;  he  is  entitled  to  ask  for 
and  to  have  confirmation  of  the  sale,  if 
there  is  no  valid  reason  in  law  for  setting 
it  aside;  and  the  court  has  no  arbitrary 
power  to  confirm,  or  to  refuse  to  confirm, 
but  only  a  sound  legal  discretion,  which 
must   be   exercised  with   a  just   regard   to 


935 


JUDGMENT  BINDING,  ETC. — NOT  TO  AFFECT  TENANT  FOR  YEARS.         §  767 


the  rijrhts  of  all  concerned.  Dunn  v.  Dunn, 
137  Cal.  ;n;  G9  Pac.  S47. 

Judgment  binding  and  conclusive  upon 
all  the  parties  to  the  action.  The  force 
and  cirect  of  a  final  judi^nient  in  jtarti- 
tion  ])roceedings  are  clearly  and  exjilicitly 
stated  in  this  section;  and  such  judjiinent 
is  declared  to  be  binding  and  conclusive 
upon  all  persons  named  in  the  complaint 
as  parties  to  the  action,  who  have  been 
served  with  summons,  and  their  legal 
representatives.  Morenhout  v.  lliguera,  32 
Cal.  2S9.  The  judgment  is  binding  and 
conclusive,  as  to  title,  upon  all  ])arties 
served  with  summons  or  who  ajipear,  and 
is  a  bar  to  a  new  action.  Martin  v. 
Walker,  58  Cal.  590.  Where,  in  action  for 
partition,  the  comjilaiut  avers  that  a  de- 
fendant has,  or  claims  to  have,  some  inter- 
est in  the  land,  which  interest  is  unknown 
to  the  plaintiff,  and  a  summons  is  served 
on  such  defendant,  and  he  fails  to  appear, 
and  the  judgment  does  not  give  such  de- 
fendant any  interest,  it  is  res  adjudicata, 
and  estops  him  from  recovering  in  a  new 
action.  Morenhout  v.  Higuera,  32  Cal.  289. 
In  an  action  of  ejectment  for  a  parcel  of 
lands  of  a  tract,  brought  by  one  of  the 
defendants  in  a  partition  suit,  and  against 
persons  who  were  parties  to  that  action, 
or  who  claimed  title  under  them,  the  judg- 
ment in  that  action  is  admissible  in  evi- 
dence to  prove  title  in  the  plaintiff  in  the 
action  of  ejectment,  and  is  conclusive  upon 
that  issue  in  respect  to  the  title  held  or 
claimed  by  the  parties  to  that  action  at 
the  time  of  its  commencement.  Hancock 
V.  Lopez,  53  Cal.  362.  Where  partition 
was  adjudged  between  tenants  in  common, 
and  their  respective  shares  set  apart  in 
severalty,  and  before  partition  the  plain- 
tiff was  accustomed  to  pass  over  the  de- 
fendant's land,  but  there  never  was  a 
right  of  way  appurtenant  to  the  parcel 
allotted  to  the  plaintiff,  a  decree  in  par- 
tition, entered  upon  the  report  of  the  ref- 
eree, which  laid  out  several  new  roads  and 
made  changes  in  old  ones,  is  conclusive 
against  the  plaintiff's  claim  of  right  of 
wa.f.   Carey  v.  Rae,  58  Cal.  159. 

Judgment  conclusive  on  all  persons  in- 
terested. Many  intricate  questions  may 
have  to  be  settled  between  the  holders 
of  special  locations  and  those  claiming  un- 
divided interests  in  a  large  tract;  but 
complete  partition,  where  the  parties  de- 
sire it,  should  be  made  in  one  action,  in- 
stead of  in  many  new  actions,  and  thus 
the  rights  of  all  the  parties,  when  put  in 
issue,    tried    and    determined:    the    whole 

§  767.  Judgment  not  to  affect  tenants  for  years  to  the  whole  property. 
The  judgment  does  not  affect  tenants  for  years  less  than  ten  to  tlie  whole 
of  the  property  which  is  the  subject  of  the  partition. 


scope  and  tenor  of  the  statute  relating 
to  partition  show  that  the  intention  was 
to  make  the  one  judgment  of  j)artition 
final  and  conclusive  on  all  persons  inter- 
ested in  the  pro])crty,  or  any  part  of  it, 
on  whom  the  court  can  acquire  jurisdic- 
tion, and  not  to  permit  the  matter  to  be 
taken  up  piecemeal.  Gates  v.  Salmon,  35 
Cal.  576;  95  Am.  Dec.  139. 

Final  judgment  operates  from  its  date. 
The  final  judgment  in  partition  ojierates 
as  an  adjudication  as  to  the  co-tenancy 
and  unity  of  possession  of  the  parties  from 
its  date,  and  not  from  the  date  of  the  in- 
terlocutory decree;  ami  a  party  to  the 
l)roceedings  cannot  avail  himself  of  an}' 
adverse  possession  between  the  date  of 
the  interlocutory  decree  and  the  date  of 
the  final  decree.  Christy  v.  Spring  Valley 
Water  Works,  97  Cal.  21;  31  Pac.  1110. 

Appeal.  The  court  may  appoint  new 
referees  in  an  action  of  partition,  in  place 
of  those  who  have  resigned,  in  order  to 
carry  its  interlocutory  decree  into  effect, 
and  their  action,  and  the  action  of  the 
court  upon  their  report,  may  be  reviewed 
upon  appeal  from  the  final  judgment,  but 
no  direct  appeal  can  be  taken  from  the 
order  appointing  such  new  referees.  Fal- 
lon V.  Brittan,  84  Cal.  511;  24  Pac.  381. 

Effect  of  judgment  in  partition.  See  note  40 
Am.  Dec.  640. 

Effect  of  compulsory  partition.  See  note  101 
Am.  .St.  Rep.  8G4. 

Decree  in  partition.  See  note  124  Am.  St.  Rep. 
713. 

Effect  of  judgment  in  partition  upon  rights  of 
defendants,  as  between  themselves,  which  were 
not  brought  to  the  attention  of  the  court.  See 
noti'    14   L.  R.  A.  ( X.  S. )  333. 

Effect  of  partition  to  create  easement  as  be- 
tween separate  parcels.  See  note  26  L.  R.  A. 
(X.  S.)  342. 

CODE    COMMISSIONEES'  NOTE.      The   effect 

of  the  judgment  in  this  action  is  determined  by 
the  code,  not  by  the  common  l.iw.  It  is  binding 
and  conclusive  upon  all  iJ.irties  properly  before 
the  court.  Morenhout  v.  Higuera,  32  Cal.  289 ; 
see  also  Gates  v.  Salmon,  35  Cal.  576;  95  Am. 
Dec.  139.  In  Tormey  v.  Allen,  45  Cal.  119, 
the  supreme  court  say:  "We  hold  in  Regan  v. 
McMalion,  43  Cal.  625,  that  the  practice  pre- 
scribed in  the  Practice  Act  as  to  the  granting 
of  new  trials  in  civil  actions  was  applicable  to 
the  review  of  decrees  rendered  in  proceedings 
on  partition.  Section  193  defines  tlie  grounds 
upon  which,  and  §  195  the  procedure  by  which, 
such  motions  may  be  made  and  determined,  and 
there  is  hardly  a  conceivable  case  in  which, 
under  the  provisions  of  the  act,  relief  may  not 
be  had,  if  ii-regularity,  accident,  or  surprise,  or 
any  other  misfortune  by  which  the  sui)stantial 
rights  of  the  parties,  or  of  any  of  them,  have 
been  sacrificed,  have  intervened.  An  action  for 
a  partition  is  as  completely  within  the  opera- 
tion of  the  act  as  any  other  civil  action  for  the 
conduct  of  which  rules  of  procedure  are  therein 
prescribed." 


Legislation  S  767.      Enacted   March   11,    1872; 
based  on  Practice  Act,    §   279,   which  had  as  the 


introductory  words,  "But  such  judgment  and  par- 
tition shall  not." 


§§  768-771  ACTIONS   FOR   PARTITION   OF   REAL   PROPERTY.  936 

Order   striking    out   answer   reviewable.  proper   compensation    to   the   referee,   and 

The  old  §  279  of  the  Practice  Act  required  its  action  will  not  be   disturbed  upon  ap- 

the  appellate  court  to  review  an  interlocu-  peal,  if  there  is  no  plain  abuse  of  discre- 

tory  order  in  an  action  in  partition,  when  tion.    Mesnager  v.  De  Leonis,  140  Cal.  402; 

it    involved    the    merits    and    necessarily  73  Pae.  1052. 

affected  judgment;   and  an   order  striking  Costs  as  generallien.     In  partition,  where 

out  an  answer  regularly  on   file,   and  ren-  a  share  has  been  set  off  to  co-tenants,  the 

deriug  judgment  without  trial,  falls  within  award   of   costs   as   a   general   lien   on   the 

this  class.   Stevens  v.  Eoss,  1  Cal.  94.  property,    including    the    interests    of    all 

Compensation  of  referee.     In  fixing  the  the    owners    therein,   without   segregation, 
compensation  of  a  referee  in  an  action  for  does  not  render  the  judgment  void  or  col- 
partition,    the    court    is    not    limited    to    a  laterally  assailable  for  errors.    Baldwin  v. 
compensation  of  five  dollars  a  day,  but  has  Foster,  157  Cal.  643;  108  Pac.  714. 
a  wide  discretion  to   determine  what  is  a 

§768.  Expenses  of  partition  must  be  apportioned  among  the  parties. 
The  expenses  of  the  referees,  including  those  of  a  surveyor  and  his  assist- 
ants, when  employed,  must  be  ascertained  and  allowed  by  the  court,  and 
the  amount  thereof,  together  with  the  fees  allowed  by  the  court,  in  its  dis- 
cretion, to  the  referees,  must  be  apportioned  among  the  different  parties  to 
the  action,  equitably. 

Fees  of  referees.    See  post,  §  1028.  an  act  approved  March  4,  1872   (Stats.  1871-72), 

■4on'n  ^^^    session    at    which    the    codes    were    adopted. 

Legislation  §  768.  Enactpd  March  11,  1»7^?  Practice  Act,  §  280,  supra,  was  amended,  (1) 
based  on  Practice  Act,  §  280,  as  amended  by  omitting  the  words  "or  assistants"  after  "assist- 
Btats.  1865-66,  p.  706,  which  read:  "The  ex-  ant";  (2)  substituting  "law"  for  "the  court  in 
penses  of  the  referees,  including  those  of  a  sur-  j^g  discretion":  (3)  adding,  after  "to  the  ref- 
veyor  and  his  assistant  or  assistants,  when  erees,"  the  words  "and  such  attorneys'  fees  ex- 
employed,  shall  be  ascertained  and  allowed  by  pended  for  the  common  benefit,  both  for  plaintiff 
the  court,  and  the  amount  thereof,  together  with  ^^d  defendants,  as  the  court  shall  deem  just  and 
the  fees  allowed  by  the  court  in  its  discretion  proper";  and  (4)  omitting  the  word  "equitably" 
to  the  referees,  shall  be  apportioned  among  the  from  end  of  section, 
different    parties    to    the    action,    equitably."      By 

§  769.  A  lien  on  an  undivided  interest  of  any  party  is  a  charge  only  on 
the  share  assigned  to  such  party.  When  a  lien  is  on  an  undivided  interest 
or  estate  of  any  of  the  parties,  such  lien,  if  a  partition  be  made,  shall  thence- 
forth be  a  charge  only  on  the  share  assigned  to  such  party;  but  such  share 
must  first  be  charged  with  its  just  proportion  of  the  costs  of  the  partition, 
in  preference  to  such  lien. 

Legislation  §  769.      Enacted   March   11,    1873;         "shall  be  first"  instead  of  "must  first  be." 
based  on  Practice  Act,  §  281,  which  had  the  words 

§  770.  Estate  for  life  or  years  may  be  set  off  in  a  part  of  the  property 
not  sold,  when  not  all  sold.  When  a  part  of  the  property  only  is  ordered 
to  be  sold,  if  there  be  an  estate  for  life  or  years,  in  an  undivided  share  of 
the  whole  property,  such  estate  may  be  set  off  in  any  part  of  the  property 
not  ordered  to  be  sold. 

Legislation  8  770.      Enacted   March    11,    1873;        partition.    See  note  32  Am.  St.  Rep.  778. 
re-enactment  of  Practice  Act,   §   282.  Partition    of    reversions    and    remainders.     See 

Contingent   or  future  estates  when  subject  to        "°'^  ^^^  •^"^-  ^*-  ^^P-  ^^• 

§  771.     Application  of  proceeds  of  sale  of  encumbered  property.     The 

proceeds  of  the  sale  of  encumbered  property  must  be  applied  under  the 
direction  of  the  court,  as  follows : 

1.  To  pay  its  just  proportion  of  the  general  costs  of  the  action; 

2.  To  pay  the  costs  of  the  reference ; 

3.  To  satisfy  and  cancel  of  record  the  several  liens  in  their  order  of  prior- 
ity, by  payment  of  the  sums  due  and  to  become  due ;  the  amount  due  to  be 
verified  by  affidavit  at  the  time  of  paj'ment ; 

4.  The  residue  among  the  owners  of  the  property  sold,  according  to  their 
respective  shares  therein. 


937 


SECURITIES  MUST  BE  FIRST  EXHAUSTED — PROCEEDS.  §§  772-774 


Legislation  8  771  Enacted  March  11.  1873;  wor.l  ■■tl..."  after  "sale  of,"  and  (2)  "must"  in- 
based  on  Practice  Act,   §   283,  which  had   (1)    the         stoad  of  "shall." 

§  772.  Party  holding  other  securities  may  be  required  first  to  exhaust 
them.  Whenever  any  party  to  an  aetion,  who  hold.s  a  lim  upon  ihr  prop- 
erty, or  any  part  thereof,  has  other  securities  for  the  payment  of  the 
amount  of  such  lien,  the  court  may,  in  its  discretion,  order  such  securities 
to  be  exhausted  before  a  distribution  of  the  proceeds  of  sale,  or  may  order 
a  just  deduction  to  be  made  from  the  amount  of  the  lien  on  the  property, 
on  account  thereof. 

Legislation  §  772.      Enacted   March    11,    1872; 
re-enactment  of  Practice  Act,  §  284. 

§  773.  Proceeds  of  sale,  disposition  of.  The  proceeds  of  sale  and  the 
securities  taken  by  tlie  referees,  or  any  part  thereof,  must  be  distributed  by 
them  to  the  persons  entitled  thereto,  whenever  the  court  so  directs.  But  in 
ease  no  direction  be  given,  all  of  such  proceeds  and  securities  must  be  paid 
into  court,  or  deposited  therein,  or  as  directed  by  the  court. 
Deposit  in  court.   Ante,  §5  572-574.  involved  in  the  action,  transfers  the  fund 

Legislation  8  773.     Enacted   March  11,   1872;        without  an  order  of  court,  the  transferee, 
}!'Y''',l,"."   Praf'tice   Act,    §    28.5,   which   had    (1)       having  knowledge  of  its  source  and  char- 
shall      instead   of     must      m   both  instances,   and         o„4.„_     „„  i    „fi   i.uZ.    j    i.         v    -i.  j. 

(2)  "all  such"  instead  of  "all  of  such."  acter,  and  of  the  duty  of  its  possessor  to 

■D.P  .  ^,.  J.  -L.   ■■,         ^  I-     J        P^y   it    over    to    the   persons    entitled,   be- 

Referee  is  custodian,  not  bailee  of  fund        l^^'^,^  ^.^^^^  ^^  ^ J  ^^^    ^^^^„^  ^„^;,,^,j 

A  referee  m  a  partition  suit,  with  respect  widenmann  v.  Weniger,  1G4  Cal.  667:  130 

to  the  proceeds  or  a  sale  oi  lands  involved  p       ^r>^  '  ' 

in   the   action    is   the   custodian   of   funds  Form  of  action  against  referee.     Where 

held  by  him  for  the  use  or  the  co-owners  ^he   referee   in   partition   has   received   the 

ac^eording    to    tho.r    interests,    to    be    paid  proceeds  of  a  sale  of  lands  involved  in  the 

when  the  precise  amounts  due  shaU  be  de-  proceeding,    the    only    appropriate    action 

termined:    he    is   not,    as   to    the   proceeds  ^hat  one  of  the  co-owners,   or  his  agents, 

of  the  sale  of  lands  involved  in  the  action,  ^^^^  niaintain  against  him,  or  his  successor, 

a  mere  bailee  of  a  special  fund,  or  the  cus-  ^^^  ^^^  recoverv  of  his  share  of  the  money 

todian   of   earmarked  money   belonging  to  ^^^^  j^^^  -^  ^^^^^  ^^  ^^^.^^  ^^  ^^^      ^^ 

the  co-owners  of  the  land     Widenmaun  v.  f^^  ^^^^^^  ^^^  ^„,^  received  to  the  use  of 

Weniger,  164  Cal.  66,  ;  1.30  Pac.  42L  ^j^^  plaintiff  in  the  action.    Widenmann  v. 


Assignment  of  claim  against  referee.     A 


Weniger,  164  Cal.  667;  130  Pac.  421. 


claim   against  a   referee   in   partition,   for  Conclusiveness  of  order.     An  order  con- 

the   proceeds   of  a   sale   of  lands  involved  ^^^^-        ^   ^^j^    -^   partition   is   appealable 

in  the  suit,  IS  a  pure  chose  in  action    and  by    the    purchaser,    who    becomes    a    quasi 

if  such  chose  in  action  is  assigned,  it  be-  ^^y  to  the  suit,  and  is  conclusive  upon 

comes  the  duty  of  the  assignee  to  notif.y  ^im,  upon  his  failure  to  appeal  therefrom. 

n^  ia^^°:^a^     ZT''''   ^^   ^^^^S^^'    ^^^  Hammond    v.   Cailleaud,    111    Cal.   206;    52 

Cal.  66<;  130  Pac.  421  Am.  St.  Rep.  167;  43  Pac.  607. 

Liablity  of  transferee  of  fund.     Where  j^^^^^^^  l^  court.     See  notes  ante,  §§  572- 

the    referee    in    partition     being    the    cus-  574  ^^^  ^^^^^        ^  §  2104. 
todian  of  the  proceeds  of  a  sale  of  lands 

§  774.  When  paid  into  court,  cause  may  be  continued  for  determina- 
tion of  claims  of  parties.  When  the  proceeds  of  the  sale  of  any  share  or 
parcel  belonging  to  persons  who  are  parties  to  the  action,  whether  known 
or  unknoAvn,  are  paid  into  courts,  the  action  may  be  continued  as  between 
such  parties,  for  the  determination  of  their  respective  claims  thereto,  which 
must  be  ascertained  and  adjudged  "by  the  court.  Further  testimony  may  be 
taken  in  court,  or  by  a  referee,  at  the  discretion  of  the  court,  and  the  court 
may,  if  necessary,  require  such  parties  to  present  the  facts  or  law  in  con- 
troversy, by  pleadings,  as  in  an  original  action. 

Legislation  8  774.    1.  Enacted  March  11,  1873;  2.   Amendment  bv  Stats.  1901.  p.  164;  uncon- 

based  on   Practice   Act,    §    2S6.   which   had    (1)    in  stitutional.     See  note  ante,  §  5 

first  line,  the  words   "sales  of  any  shares  or  par-  3.    Amended  bv  Stats.  i"907,  p.  607,  substitut- 

cels,"  instead  of  "the  sale,"  etc.,  and    (2)    "shall"  in?    (1)    "whether   known   or   unknown"   for  "and 

instead  of   "must."  who    are    known,"    and     (2)     "courts"     (sic)     for 


§§  775-778  ACTIONS  for  partition  of  real  property.  938 

"court"  after  "paid  into":  the  code  commissioner  Cal.  427:  58  Am.  St.  Eep.  188:  48  PaC.  481. 
Baying,  "Tlie  words  Svliether  known  or  unknown'  T.inhilitv  nf  rn«5tnf1inn  nf  fnnrJ  Wliprp 
are  substituted  for  'and  who  are  known,'  to  avoid  ijiaOlllty  01  CUStOQian  01  luna.  \\  nere 
the  difficulty  suggested  in  Grant  v.  Murphy,  116  a  fund,  arising  from  the  sale  of  land  in  a 
Cal.  433."  partition  suit,  is  not  paid  into  court  in 
Construction  of  section.  This  section  and  such  suit,  and  the  action  is  not  continued 
§  7.59,  ante,  are  to  be  construed,  in  deter-  for  its  disposition,  as  provided  in  this  sec- 
mining  title  as  between  hostile  claimants  tion,  the  custodian  of  the  fund  is  not  pro- 
to  any  share  or  parcel,  or  to  the  proceeds  tected  by  an  ex  parte  order  of  court  for 
of  the  sale  thereof,  as  limited  to  the  de-  j^s  payment,  where  he  makes  payment  to 
termination  of  issues  over  which  the  court  a  person  not  entitled.  Widenmann  v. 
in  which  the  partition  proceedings  are  pend-  Weniger,  164  Cal.  667;  130  Pac.  421. 
ing  has  jurisdiction.   Grant  v.  Murphy,  116 

§  775.  Sales  by  referees  may  be  public  or  private.  All  sales  of  real 
property  made  by  referees  under  this  chapter  must  be  made  at  public  auc- 
tion to  the  highest  bidder,  upon  notice  given  in  the  manner  required  for  the 
sale  of  real  property  on  execution  unless  in  the  opinion  of  the  court  it 
would  be  more  beneficial  to  the  parties  interested  to  sell  the  whole  or  some 
part  thereof  at  private  sale ;  the  court  may  order  or  direct  such  real  prop- 
erty, or  any  part  thereof,  to  be  sold  at  either  public  auction  or  private  sale 
as  the  referee  shall  judge  to  be  most  beneficial  to  all  parties  interested. 
If  sold  at  public  auction  the  notice  must  state  the  terms  of  sale  and  if  the 
propertj^  or  any  part  thereof  is  to  be  sold  subject  to  a  prior  estate,  charge 
or  lien,  that  must  be  stated  in  the  notice.  If  the  sale  is  ordered  made  at 
either  public  auction  or  private  sale,  the  sale  at  private  sale  shall  be  con- 
ducted in  the  manner  required  in  private  sales  of  real  property  of  estates 
of  deceased  persons. 

Terms,  distinct  lots.    Post,  §  782.  erty    on    execution.     The    notice    must    state    the 

Kotice  of  execution  sales.    Ante,  §§  692,  693.  terms  of  sale,  and  if  the  property  or  any  part  of 

Proceedings.    Ante,  §§  694  et  seq.  it  is  to  be  sold  subject  to  a  prior  estate,  charge, 

or  lien,  that  must  be  stated  in  the  notice." 
Legislation  §  775.     1.  Enacted  March  11,  1872;  2.    Amendment  by  Stats.  1901,  p.  164;  uncon- 

hased    on    Practice    Act,    §    287,    which    had    (1)  stitutional.     See  note  ante,  §  5. 

"shall"  instead  of  "must,"  in  the  three  instances,  3.  Amended  by  Stats.  1907,  p.  608,  substitut- 
and  (2)  "by"  instead  of  "at"  before  "public  ing  "given"  for  "published"  after  "notice";  the 
auction."  'When  enacted  in  1872,  §  775  read:  code  commissioner  saying,  " 'Published'  is  changed 
"All  sales  of  real  property,  made  by  referees,  to  'given,'  thus  requiring  the  notice  of  a  sale  in 
under  this  chapter,  must  be  made  at  public  auc-  partition  to  be  the  same  as  when  under  execu- 
tion to  the  highest  bidder,  upon  notice  published  tion." 
in  the  manner  required  for  the  sale  of  real  prop-             4.   Amended  by  Stats.  1909,  p.  1001. 

§  776.  Court  must  direct  terms  of  sale  or  credit.  The  court  must,  in 
the  order  for  sale,  direct  the  terms  of  credit  which  may  be  allowed  for  the 
purchase-money  of  any  portion  of  the  premises  of  which  it  may  direct  a 
sale  on  credit,  and  for  that  portion  of  which  the  purchase-money  is  re- 
quired, by  the  provisions  hereinafter  contained,  to  be  invested  for  the 
benefit  of  unknown  owners,  infants,  or  parties  out  of  the  state. 

Legislation  §  776.      Enacted   March   11,    1872;         "shall"  instead  of  "must." 
based  on  Practice  Act,  §  288,  which  had  the  word 

§  777.  Referees  may  take  securities  for  purchase-money.  The  referees 
may  take  separate  mortgages  and  other  securities  for  the  whole,  or  con- 
venient portions  of  the  purchase-money,  of  such  parts  of  the  property  as 
are  directed  by  the  court  to  be  sold  on  er'edit,  for  the  shares  of  any  known 
owner  of  full  age,  in  the  name  of  such  owner;  and  for  the  shares  of  an 
infant,  in  the  name  of  the  guardian  of  such  infant ;  and  for  other  shares, 
in  the  name  of  the  clerk  of  the  county  and  his  successors  in  office. 

Legislation  8  777.      Enacted   March   11,    1872;        by  Stats.  1854,  Redding  ed.  p.  64,  Kerr  ed.  p.  90. 
re-enactment  of  Practice  Act,    §   289,   as   amended 

§  778.    Tenant  whose  estate  has  been  sold  shall  receive  compensation. 

The  person  entitled  to  a  tenancy  for  life,  or  years,  whose  estate  has  been 


939  DUTY   OF   COURT — SEPARATE   SALES — PURCHASER.  §§  779-784 

sold,  is  entitled  to  receive  such  sum  as  may  be  deemed  a  reasonable  satis- 
faction for  such  estate,  and  which  the  person  so  entitled  may  consent  to 
accept  instead  thereof,  by  an  instrument  in  writinti:,  filed  with  the  clerk  of 
the  court.  Upon  the  filing  of  such  consent,  the  clerk  must  enter  the  same 
in  the  minutes  of  the  court. 

Legislation  8  778.      Enacted    March    11,    1873  (3)    "must"    for    "shall"    after   "clerk." 
(based  on  Practice  Act,   §   290),   substitutinc   (1)  t.-   t...  ^  ..-^i  .  ..  i.i     ^  »     t 

"has"     for     "shall     have"     before     "been     sold,"  ,    ^^^^^  *«>  Partition  of  property  subject  to  lease 

(2)    "is"    for    "shall   be"   before    "entitled,"    and  '"'^  ^^^"^  °^  years.    S.e  note  9  .Van.  Cas.  1029. 

§  779.  Court  may  fix  such  compensation.  If  such  consent  be  not  given, 
filed,  and  entered  as  provided  in  the  last  section,  at  or  before  a  judirmont 
of  sale  is  rendered,  the  court  must  ascertain  and  determine  what  proportion 
of  the  proceeds  of  the  sale,  after  deducting  expenses,  will  be  a  .iust  and 
reasonable  sum  to  be  allowed  on  account  of  such  estate,  and  must  order 
the  same  to  be  paid  to  such  party,  or  deposited  in  court  for  him,  as  the 
case  may  require. 

Legislation  §  779.      Enacted   March    11,    1873         "must"  for  "shall,"  in  both  instances, 
(based    on     Practice    Act,     §     291),     substituting 

§  780.  Court  must  protect  tenants  unknown.  If  the  persons  entitled  to 
such  estate  for  life  or  years  be  unknown,  the  court  must  provide  for  the 
protection  of  their  rights  in  the  same  manner,  as  far  as  may  be,  as  if  they 
were  known  and  had  appeared. 

Legislation  §  780.     Enacted   March    11,    1873         "must"  for  "shall." 
(based    on    Practice     Act,     §   ^292),     substituting 

§781.  Court  must  ascertain  and  secure  the  value  of  future  contingent 
or  vested  interests.  In  all  cases  of  sales,  when  it  appears  that  any  person 
has  a  vested  or  contingent  future  right  or  estate  in  any  of  the  property 
sold,  the  court  must  ascertain  and  settle  the  proportional  value  of  such  con- 
tingent or  vested  right  or  estate,  and  must  direct  such  proportion  of  the 
proceeds  of  the  sale  to  be  invested,  secured,  or  paid  over,  in  such  manner 
as  to  protect  the  rights  and  interests  of  the  parties. 

Legislation  §  781.     Enacted   March    11,    1873         "must"  for  "shall,"  in  both  instances, 
(based    on    Practice    Act,     §     293),     substituting 

§  782.  Terms  of  sale  must  be  made  known  at  the  time.  Lots  must  be 
sold  separately.  In  all  cases  of  sales  of  property  the  terms  must  be  made 
known  at  the  time ;  and  if  the  premises  consist  of  distinct  farms  or  lots, 
they  must  be  sold  separately. 

Legislation  8  782.     Enacted    March    11,    1873         "must"  for  "shall,"  in  both  instances, 
(based    on    Practice    Act,     §     294),     substituting 

§  783.  Who  may  not  be  purchasers.  Neither  of  the  referees,  nor  any 
person  for  the  benefit  of  either  of  them,  can  be  interested  in  any  purchase ; 
nor  can  a  guardian  of  an  infant  party  be  interested  in  the  purchase  of  any 
real  property,  being  the  subject  of  the  action,  except  for  the  benefit  of  the 
infant.     All  sales  contrary  to  the  provisions  of  this  section  are  void. 

Legislation  §  783.      Enacted    March    11,    1878  "can"    for    "shall,"    in    both    instances,    and     (1^ 

(based  on  Practice  Act,   §   295),   (1)    substituting         "are"   for  "shall  be." 

§  784.  Referees  must  make  report  of  sale  to  court.  Confirmation  or  re- 
jection of  sale.  After  completing  a  sale  of  property,  or  any  part  thereof 
ordered  to  be  sold,  the  referees  must  report  the  same  to  the  court,  with  a 
description  of  the  difi'erent  parcels  of  land  sold  to  each  purchaser;  the 
name  of  the  purchaser ;  the  price  paid  or  secured ;  the  terms  and  condi- 


§784 


ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY. 


940 


tions  of  the  sale,  and  the  securities,  if  any,  taken.  The  report  must  be  filed 
in  the  office  of  the  clerk  of  the  county  in  which  the  action  is  brought.  There- 
after any  purchaser,  or  any  party  to  the  action,  may,  upon  ten  days'  notice 
to  the  other  parties  who  have  appeared  therein,  and  also  to  the  purchaser 
if  he  be  not  the  moving  party,  move  the  court  to  confirm  or  set  aside  any 
sale  or  sales  so  reported.  Upon  the  hearing,  the  court  must  examine  the 
return  and  report  and  witnesses  in  relation  to  the  same,  and  if  the  pro- 
ceedings were  unfair,  or  the  sum  bid  disproportionate  to  the  value,  and  if 
it  appears  that  a  sum  exceeding  such  bid  at  least  ten  per  cent,  exclusive  of 
a  new  sale  may  be  obtained,  the  court  may  vacate  the  sale  and  direct 
another  to  be  had,  of  which  notice  must  be  given,  and  the  sale  conducted 
in  all  respects  as  if  no  previous  sale  had  taken  place.  If  an  offer  of  ten 
per  cent  more  in  amount  than  that  named  in  the  return  be  made  to  the 
court,  in  writing,  by  a  responsible  person,  it  is  in  the  discretion  of  the 
court  to  accept  such  offer  and  confirm  the  sale  to  such  person,  or  to  order 
a  new  sale. 


Legislation  §  784.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  296,  which  had  the 
word  "shall"  instead  of  "must,"  in  both  instances, 
the  section  then  containing  onlj'  the  first  two  sen- 
tences. When  enacted  in  1872,  §  784  read: 
"After  completing  a  sale  of  the  property,  or  any 
part  thereof  ordered  to  be  sold,  the  referees 
must  report  the  same  to  the  court,  with  a  descrip- 
tion of  the  different  parcels  of  land  sold  to  each 
purchaser:  the  name  of  the  purchaser;  the  price 
paid  or  secured;  the  terms  and  conditions  of  the 
sale,  and  the  securities,  if  any,  taken.  The  re- 
port must  be  filed  in  the  office  of  the  clerk  of 
the  county  where  the  property  is  situated." 

2.  Amendment  by  Stats.  1901,  p.  165;  uncon- 
stitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  608.  adding 
the  sentence  of  the  1909  amendment,  beginning 
"Thereafter"  ;  the  code  commissioner  saying,  "The 
amendment  adds  the  last  sentence,  providing  that 
the  purchaser  at  a  partition  sale  or  any  party  to 
the  suit  may  move  to  confirm  or  vacate  it,  and 
the  notice  to  be  given  of  the  motion." 

4.  Amended  by  Stats.  1909,  p.  1002. 

Purchaser's  refusal  to  pay  amount  of  his 
bid.  The  purchaser  is  not  bound  to  accept 
an  imperfect  title;  but  where,  without 
cause  or  excuse,  he  refuses  to  take  the 
property  after  the  sale  in  partition,  and 
deliberately  intends  to  suffer  all  the  legal 
'consequences  of  such  refusal,  a  resale  can- 
not be  either  a  just  or  a  legal  mode  of 
ascertaining  his  liability,  unless  made  upon 
the  same  terms  and  conditions  as  those 
under  which  he  purchased  the  property. 
Hammond  v.  Cailleaud,  111  Cal.  206;  52 
Am.  St.  Eep.  167;  43  Pac.  607.  Where  the 
purchaser  refuses  to  pay  the  price  bid  and 
take  a  deed,  and  a  resale  is  made  at  a  less 
price,  the  first  purchaser  is  liable  for  the 
difference.  Dunn  v.  Dunn,  137  Cal.  51;  69 
Pac.  847.  Where,  without  a  resale,  the 
referee  brings  suit  against  the  defendant 
to  recover  the  unpaid  purchase-money,  the 
action  can  be  sustaineil,  because  the  order 
confirming  the  sale,  not  being  appealed 
from,  absolutely  fixes  the  defendant's  lia- 
bility as  a  purchaser;  but  he  is  not  con- 
cluded, by  his  failure  to  appeal,  from 
showing  that  the  terms  of  the  first  sale 
were    different   from    those   of   the   second 


sale.  Hammond  v.  Cailleaud,  111  Cal.  206; 
52  Am.  St.  Eep.  167;  43  Pac.  607. 

Unfairness  in  making  sale,  refusal  of 
court  to  confirm.  Where  the  referee,  in 
making  the  sale  in  an  action  of  partition, 
makes  any  error,  irregularity,  or  misrep- 
resentation, whether  intentional  or  not, 
whereby  the  purchaser  is  misled  to  his 
prejudice  to  su»h  an  extent  as  to  make  it 
unconscionable  that  his  contract  of  pur- 
chase should  be  enforced  against  him,  the 
sale  will  not.  be  confirmed.  Hammond  v. 
Cailleaud,  111  Cal.  206;  52  Am.  St.  Rep. 
167;  43  Pac.  607. 

Resale  for  inadequacy  of  price.  There 
is  not  an  entire  agreement  by  appellate 
tribunals  as  to  when  mere  inadequacy  of 
price  will  justify  an  order  of  resale,  al- 
though the  weight  of  authority  seems  to 
hold  to  the  rule,  that  there  must  be  some- 
thing more  than  mere  inadequacy,  that  is, 
that  the  inadequacy  must  be  such  as  to 
justify  the  inference  of  fraud,  or  is  so 
gross  as  to  shock  the  conscience.  The 
court  must  look  to  the  value  of  the  prop- 
erty at  the  time  of  the  sale,  and  not  to 
the  time  when  the  question  of  confirma- 
tion is  before  the  court,  unless  these 
periods  so  nearly  coincide  as  to  justify 
the  presumption  that  no  change  in  values 
has  taken  place.  Dunn  v.  Dunn,  137  Cal. 
51;  69  Pac.  847. 

Discretion  of  court.  The  court,  doubt- 
less, has  power  to  confirm  or  to  refuse  to 
confirm  the  sale;  but  this  is  not  an  arbi- 
trary power:  it  is  neither  more  nor  less 
than  a  sound  judicial  discretion,  and  must 
be  exercised  with  a  just  regard  to  the 
rights  of  all  concerned.  Dunn  v.  Dunn, 
137  Cal.  51;  69  Pac.  847. 

Confirmation  of  resale.  Where  a  larger 
price  was  bid  ui)on  an  original  sale,  owing 
to  the  terms  of  sale  expressly  providing 
for  a  perfect  and  valid  title,  and  the  price 
bid   upon   a   resale,   which   was   confirmed, 


941  CONFIRMATION   OF  SALE — RECORD  OF  CONVEYANCE.  §§785-788 

was  niufh  less,  owing  to  the  terms  of  sale  of  the  second  sale,  upon  the  ground  that 
being  expressly  at  the  j)urchaser's  risk,  the  jjrice  obtained  was  inade(|uate,  they 
and  no  fact  or  circumstance,  other  than  are  estojtped  from  denying  the  adecjuacy 
the  differing  conditions  of  sale,  tends  to  of  the  price  obtained  umier  the  conditions 
account  for  the  difference  in  price,  it  must  of  sale;  nor  can  the  referee  making  the 
be  presumed  that  all  the  difference  be-  sales  deny  the  terms  and  conditions  of 
tween  the  two  bids  was  induced  by  the  the  contract  made  by  him  with  such  pur- 
terms  of  the  second  sale;  and  where  the  chaser.  Hammond  v.  Cailleaud,  111  C'al. 
owners  did  not  object  to  the  confirmation  206;  .52  Am.  St.  Kep.  167;  43  Pac.  607. 

§  785.     If  sale  confirmed,  order  must  be  made  to  execute  conveyances. 

If  the  sale  is  confirmed  by  the  court,  an  order  must  be  entered,  directing 

the  referees  to  execute  conveyances  and  take  securities  pursuant  to  such 

sale,  vi^hich  they  are  hereby  authorized  to  do.     Such  order  may  also  give 

directions  to  them  respecting  the  disposition  of  the  proceeds  of  the  sale. 

If  the  purchaser,  after  the  confirmation   of  the  sale,  refuses  to  pay  the 

amount  of  his  bid,  the  referees  may  again  sell  the  property  at  any  time  to 

the  highest  bidder,  and  if  any  loss  is  occasioned  thereby  the  referees  may 

recover  the  amount  of  such  loss  and  the  cost  from  the  bidder  so  refusing, 

or  the  referees,  Avithout  making  a  resale,  may  maintain  an  action  against 

the  purchaser  for  the  amount  of  his  bid. 

Legislation  s  785.     1.  Enacted  March  11,  1873  Correction  of  referee's  mistake.     Where, 

(based    on    Practice    Act,    §    297),    substituting  bv  reason  of  the  mistake  of  the  referee  in 

"must     for  "shall,      the  section   then  having  only  ,,"•    „    <.!,„    , ^.,„    „„       ■  i  •  *■ 

the  first  two  sentences.  "si°g  the   wrong  map   in_  making   a   parti- 

2.  Amendment  by  Stats.  1901,  p.  165;  uncon-  tion,  land  not  included  in  the  complaint, 
stitutional.    Seenoteant^e,  §5  which  is   adversely   possessed   by   one   who 

3.  Amended  by  Stats.  1907,  p.  60>*,  (1)  .  .  j.  i.  li,  x-  •  ^  «•  j 
changing  "be"  to  "is,"  in  first  line,  and  (2)  add-  IS  not  a  party  to  the  action,  IS  set  off  and 
ing  the  last  sentence;  the  code  commissioner  confirmed  to  one  of  the  parties,  the  final 
saying,  "The  amendment  adds  the  last  sentence,  decree  mav  be  set  aside,  as  to  such  prop- 
giving   referees   who   have    sold   property   in   parti-             ,          ,         -            .^     •                •             ,-,,.• 

tion  the  right  to  sue  for  the  amount  of  the  bid,  erty,  by  a  suit  in  equity.  Sullivan  v. 
or   to    make    a    resale   and   recover   the   amount   of         Lumsdcn,  118  C'al.  664;  .")U  Pac.  777. 

deficiency,  if  any."  Purchaser's    refusal' to   pay    amount    of 

No  sale  valid  until  confirmed.     No  sale  his  bid.     See  note  ante,  §  78.3. 
in  partition  is  valid  until  reported  to  and  Applicability  of  rule  of  caveat  emptor  to  par- 
confirmed    by    the    court.     Schoonover    v.  tition  sales.    See  note  33  L.  R.  A.  (N.  S. )  409. 
Birnbaum,  150  Cal.  734;  89  Pac.  1108. 

§  786.  Proceeding  if  a  lienholder  becomes  a  purchaser.  When  a  party 
entitled  to  a  share  of  the  property,  or  an  encumbrancer  entitled  to  have 
his  lien  paid  out  of  the  sale,  becomes  a  purchaser,  the  referees  may  take  his 
receipt  for  so  much  of  the  proceeds  of  the  sale  as  belongs  to  him. 

Legislation  g  786.      Enacted   March   11,    1872; 
re-enactment  of  Practice  Act,   §  298. 

§  787.     Conveyances  must  be  recorded,  and  will  be  a  bar  against  parties. 

The  conveyances  must  be  recorded  in  the  county  Avhere  the  premises  are 
situated,  and  shall  be  a  bar  against  all  persons  interested  in  the  property 
in  any  way  who  shall  have  been  named  as  parties  in  the  action,  and 
against  all  such  parties  and  persons  as  were  unknoAvn.  if  the  summons  was 
served  by  publication,  and  against  all  persons  claiming  under  them,  or 
either  of  them,  and  against  all  persons  having  unrecorded  deeds  or  liens  at 
the  commencement  of  the  action. 

Legislation  §  787.       1.  Enacted  March  11,1873  section   then  ending  with   the  words  "or  either  of 

(based  on   Practice  Act,   §  299),    (1)   in   first  line,  them." 

changing   "shall"    to   "must,"    (2)    changing   "have  2.   Amended  by  Code  Amdts.  1873-74,  p.  326, 

been"  to   "was"   after  "summons,"   and    (3)    chan-  adding    the    last    clause,    beginning    "and    against 

ging    "from"    to    "under"    after    "claiming" ;     the  all." 

§  788.  Proceeds  of  sale  belonging  to  parties  unknown  must  be  invested 
for  their  benefit.     When  there  are  proceeds  of  a  sale  belonging  to  an  un- 


§§  789-792  ACTIONS  for  partition  of  real  property.  942 

known  owner,  or  to  a  person  without  the  state,  who  has  no  legal  representa- 
tive within  it,  the  same  must  be  invested  in  bonds  of  this  state  or  of  the 
United  States,  for  the  benefit  of  the  persons  entitled  thereto. 

Legislation  §  788.      Enacted   March   11,    1872;        of  "bonds  of  this  state  oi;  of  the  United  States," 
based  on  Practice  Act,   §  300,  which  had   (1)   the        the  words   "securities  ou  interest." 
word   "shall"   instead  of   "must,"   and   (2)    instead 

§  789.  Investment  must  be  made  in  the  name  of  the  clerk  of  the  county. 
When  the  security  of  the  proceeds  of  sale  is  taken,  or  when  an  investment 
of  any  such  proceeds  is  made,  it  must  be  done,  except  as  herein  otherwise 
provided,  in  the  name  of  the  clerk  of  the  county  where  the  papers  are  filed, 
and  his  successors  in  office,  who  must  hold  the  same  for  the  use  and  benefit 
of  the  parties  interested,  subject  to  the  order  of  the  court. 

Legislation  §  789.       Enacted    March    11,  1872         "must"  for  "shall,"  in  both  instances, 
(based    on     Practice    Act,     §     301),     substituting 

§  790.  When  the  interests  of  the  parties  are  ascertained,  securities  must 
be  taken  in  their  names.  When  security  is  taken  by  the  referees  on  a  sale, 
and  the  parties  interested  in  such  security,  by  an  instrument  in  writing, 
under  their  hands,  delivered  to  the  referees,  agree  upon  the  shares  and  pro- 
portions to  which  they  are  respectively  entitled,  or  when  shares  and  pro- 
portions have  been  previously  adjudged  by  the  court,  such  securities  must 
be  taken  in  the  names  of  and  payable  to  the  parties  respectively  entitled 
thereto,  and  must  be  delivered  to  such  parties  upon  their  receipt  therefor. 
Such  agreement  and  receipt  must  be  returned  and  filed  with  the  clerk. 

Legislation  §  790.     Enacted    March    11,    1872         "must"  for  "shall,"  in  the  three  instances, 
(based    on    Practice    Act,     §     302),     substituting 

§  791.  Duties  of  the  clerk  making  investments.  The  clerk  in  whose 
name  a  security  is  taken,  or  by  whom,  an  investment  is  made,  and  his  suc- 
cessors in  office,  must  receive  the  interest  and  principal  as  it  becomes  due, 
and  apply  and  invest  the  same  as  the  court  may  direct;  and  must  deposit 
with  the  county  treasurer  all  securities  taken,  and  keep  an  account  in  a 
book  provided  and  kept  for  that  purpose,  in  the  clerk's  office,  free  for  in- 
spection by  all  persons,  of  investments  and  moneys  received  by  him  thereon, 
and  the  disposition  thereof. 

Deposit  in  court.    Ante,  §§  572-574.  "must"    for    "shall"    before    "receive,"    and    (2) 

-opivr.  "must    deposit    with    the    county    treasurer"    for 

Legislation  §  791.      Enacted    March    11,    1872  "shall  file  in  his  office." 
(based  on  Practice  Act,   §   303),  substituting   (1) 

§  792.  When  unequal  partition  is  ordered,  compensation  may  be  ad- 
judged in  certain  cases.  When  it  appears  that  partition  cannot  be  made 
equal  between  the  parties,  according  to  their  respective  rights,  without  pre- 
judice to  the  rights  and  interests  of  some  of  them,  and  a  partition  be 
ordered,  the  court  may  adjudge  compensation  to  be  made  by  one  party  to 
another,  on  account  of  the  inequality;  but  such  compensation  shall  not  be 
required  to  be  made  to  others  by  owners  unknown,  nor  by  an  infant,  unless 
it  appears  that  such  infant  has  personal  property  sufficient  for  that  pur- 
pose, and  that  his  interest  will  be  promoted  thereby.  And  in  all  cases  the 
court  has  power  to  make  compensatory  adjustment  between  the  respective 
parties,  according  to  the  ordinary  principles  of  equity. 

Legislation  8  792.      Enacted    March    11,    1873;         pears"    for    "shall    appear,"    and     (2)     "has"    for 
based    on    Practice    Act,     §    .^01,    as    amended    by         "shall  have"   before  "puwer." 
Stats.    1865-66,    p.    706,    substituting    (1)     "ap- 


943 


GUARDIAN,  PROCEEDS  PAYABLE  TO — LIEN    FOR  COSTS.         §§  793-796 


§  793.  The  share  of  an  mfant  may  be  paid  to  his  guardian.  Wlicn  tlie 
share  of  an  infant  is  sold,  the  proceeds  of  the  sale  may  be  paid  by  the 
referee  making  the  sale  to  his  general  guardian,  or  the  special  guardian 
appointed  for  him  in  the  action,  upon  giving  the  security  required  by  law 
or  directed  by  order  of  the  court. 


General  guardian.    Post,  §§  1747-1809. 
Guardian    ad    litem,    generally.      Ante,  §§  372, 
873. 


Legislation  8  793.     Enacted   March    11,    1873; 
re-c'iiactiut'nt  of  Practice  Act,   §  30o. 


§  794.  The  guardian  of  an  insane  person  may  receive  the  proceeds  of 
such  party's  interest.  The  guardian  -who  may  be  entitled  to  the  custody 
and  management  of  the  estate  of  an  insane  person,  or  other  person  ad- 
judged incapable  of  conducting  his  own  affairs,  whose  interest  in  real  prop- 
erty has  been  sold,  may  receive  in  behalf  of  such  person  his  share  of  the 
proceeds  of  such  real  property  from  the  referees,  on  executing  with  suffi- 
cient sureties  an  undertaking  approved  by  a  judge  of  the  court,  that  he 
will  faithfully  discharge  the  trust  reposed  in  him,  and  will  render  a  true 
and  just  account  to  the  person  entitled  or  to  his  legal  representative. 


Legislation  S  794.  1.  Enacted  March  11,  1872 
(based  on  Practice  Act,  §  30G),  substituting 
"has"  for  "shall  have." 


3.  Amended  by  Code  Amdts.  1880,  p.  11. 
omitting  "or  by  a  county  judge"  after  "judge  of 
the  court." 


§  795.     [Provided  that  guardian  could  consent  to  partition  without  action, 

and  execute  releases.     Repealed.] 

an  infant  may  consent  to  a  partition  with- 
out action;  and  as  such  guardian  has  also 
authority  to  appear  for  the  minor  in  an 
action  for  a  partition,  it  would  seem  that, 
in  the  action,  the  guardian  might  consent 
to  a  mere  course  of  procedure  authorized 
by  statute,  and  coming  within  the  purview 
of  the  action  itself.  Richardson  v.  Loupe, 
SOCal.  490;  22  Pae.  227. 


Legislation  §  795.  1.  Enacted  March  11,  1873; 
re-enactment  of  Practice  Act,   §   307. 

3.  Repeal  by  Stats.  1901,  p.  165;  unconstitu- 
tional.    See  note  ante,  §  o. 

3.  Repealed  by  Stats.  1907,  p.  608;  the  code 
aommissioner  saying,  "Repealed,  because  it  au- 
thorized guardians  of  infants  and  insane  persons 
to  consent  to  partitions  without  any  action,  and 
did  not  provide  for  any  notice  of  the  proceedings 
to  be  given  either  to  the  persons  or  their  rela- 
tives,   or  otherwise." 

Consent  to  partition.  It  is  provided  by 
this  section  that  the  general  guardian   of 

§  796.  Costs  of  partition  a  lien  upon  shares  of  parceners.  The  costs  of 
partition,  including  reasonable  counsel  fees,  expended  by  the  plaintiff  or 
either  of  the  defendants,  for  the  common  benefit,  fees  of  referees,  and  other 
disbursements,  must  be  paid  hy  the  parties  respectively  entitled  to  share 
in  the  lands  divided,  in  proportion  to  their  respective  interests  therein,  and 
may  be  included  and  specified  in  the  judgment.  In  that  case  they  shall  be 
a  lien  on  the  several  shares,  and  the  judgment  may  be  enforced  by  execu- 
tion against  such  shares,  and  against  other  property  held  by  the  respective 
parties.  When,  however,  litigation  arises  between  some  of  the  parties  only, 
the  court  may  require  the  expense  of  such  litigation  to  be  paid  by  the 
parties  thereto,  or  any  of  them. 


Referees'  fees,   etc.    Ante,  §768;   post,  §  1028. 

Legislation  §  796.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  308.  which,  as  amended 
by  stats.  1871-72,  p.  230,  read:  "The  costs  of 
partition,  including  fees  of  referees,  and  such  at- 
torneys' fees  expended  for  the  common  benefit, 
both  for  plaintiffs  and  defendants,  as  the  court 
shall  deem  just  and  proper,  and  other  disburse- 
ments, shall  be  paid  by  the  parties  respectively 
entitled  to  share  in  the  lands  divided  in  propor- 
tion to  their  respective  interests  therein,  and  may 
be  included  and  specified  in  the  judgment.  In 
that  case  they  shall  be  a  lien  on  the  several 
shares,  and  the  judgment  may  be  enforced  by 
execution  against  such  shares,  and  against  other 
property    held  by  the  respective  parties.     When, 


however,  a  litigation  arises  between  some  of  the 
parties  only,  the  court  may  require  the  expense 
of  such  litigation  to  be  paid  by  the  parties 
thereto,  or  any  of  them."  The  original  Practice 
Act  section  did  not  contain  the  words  "and  such 
attorneys'  fees  expended  for  the  common  benefit, 
both  for  plaintiff  and  defendants,  as  the  court 
shall  deem  just  and  proper."  When  enacted  in 
1872,  §  795  read  as  at  present,  except  for  the 
amendments  of  1874. 

3.  Amended  by  Code  Amdts.  1873-74.  p.  32rt, 
(1)  inserting  "or  either  of  the  defendants"  after 
"plaintiff,"  and  (2)  omitting  "a"  before  "litiga- 
tion." 

Construction  of  section.  The  lien  re- 
ferred to  iu  this  section  is  one  that  takes 


§§  797,  798 


ACTIONS  FOR  PARTITION  OF  REAL  PROPERTY. 


944 


effect  by  relation  at  the  time  of  the  filing 
of  the  notice  of  lis  pendens,  and  without 
docketing  the  judgment;  and  the  express 
provision,  that  such  lien  may  be  acquired 
in  a  particular  mode,  negatives  the  right 
to  acquire  it  in  any  other  mode.  Lacoste 
V.  Eastland,  117  Cal.  673;  49  Pac.  1046. 
It  is  contemplated  by  this  section  that 
costs  may  or  may  not  become  a  lien  upon 
the  several  shares  of  the  parties,  as  the 
parties  to  whom  they  are  due  may  elect, 
and  the  solution  of  the  question  as  to 
whether  they  become  a  lien  depends  upon 
whether  thej'  are  specified  and  included  in 
the  judgment  of  partition;  the  statute  does 
not  say  that  the  costs  shall  in  all  cases 
become  a  lien,  but  that  "in  that  case," 
that  is,  when  they  are  "included  and  speci- 
fied in  the  judgment,"  they  become  a  lien. 
Lacoste  v.  Eastland,  117  Cal.  673;  49  Pac. 
1046. 

Liability  for  costs.  The  right  of  the 
plaintiff,  in  an  action  for  partition,  to  the 
proceeds  arising  from  the  sale,  must  be 
limited  by  the  extent  of  the  interest  he 
acquires  in  the  premises  under  his  convey- 
ance, and  from  this  his  proportionate  share 
of  the  costs  and  expenses  of  the  action  and 
the  subsequent  i^roceedings  must  be  de- 
ducted. Goodenow  v.  Ewer,  16  Cal.  461;  76 
Am.  Dec.  540.  Where  plaintiff  conveys  his 
interest  to  defendants,  pending  an  action 
for    partition,    the    defendants,    being    the 

§  797.     [Provided  that  court,  by  consent,  could  appoint  single  referee. 
Repealed.] 


only  parties  entitled  to  share  in  the  lands 
divided,  are  liable  for  costs.  Wickersham 
V.  Denman,  68  Cal.  383;  9  Pac.  723. 

Counsel  fees.  The  amount  of  an  attor- 
ney's fee  to  be  allowed  in  an  action  for 
partition  is  a  question  of  fact,  to  be  deter- 
mined by  the  trial  court  from  the  evidence, 
and  its  findings  will  not  be  disturbed, 
where  there  is  a  substantial  conflict  in  the 
evidence,  if  there  is  sufficient  evidence  to 
support  the  allowance,  and  there  is  no 
clear  abuse  of  discretion.  Watson  v.  Sutro, 
103  Cal.  169;  37  Pac.  201. 

Costs  allowed  when  and  how.  Costs  in 
partition  cannot  be  allowed  until  the  final 
judgment  is  entered.  Harrington  v.  Gold- 
smith, 136  Cal.  168;  68  Pac.  594.  In  par- 
tition, where  a  share  has  been  set  off  to 
co-tenants,  the  award  of  costs,  as  a  gen- 
eral lien  on  the  property,  including  the 
interests  of  all  the  owners  therein,  without 
segregation,  does  not  render  the  judgment 
void  or  collaterally  assailable  for  errors. 
Baldwin  v.  Foster,  157  Cal.  643;  108  Pac. 
714. 

Appeal.  In  partition,  a  defendant's  con- 
sent to  the  allowance  of  attorneys'  fees 
estops  him,  on  appeal,  from  objecting  to 
such  allowance.  Seale  v.  Carr,  155  Cal. 
577;  102  Pac.  262. 

Allowance  of  attorney's  fees  in  partition.  See 
note  12  Aun.  Cas.  854. 


3.  Repealed  by  Stats.  1907,  p.  608;  the  code 
commissioner  saying,  "Repealed,  because  its  pro- 
visions have  been  included  in  the  amendment  to 
§  763." 


Referees.    Ante,  §  763. 

Legislation  §  797.  1.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,   §   309. 

2.  Repeal  by  Stats.  1901,  p.  165;  uncon- 
stitutional.    See  note  ante,  §  5. 

§  798.  Apportionment  of  expenses  of  litigation.  If  it  appear  that  other 
actions  or  proceedings  have  been  necessarily  prosecuted  or  defended  by  any 
one  of  the  tenants  in  common,  for  the  protection,  confirmation,  or  perfect- 
ing of  the  title,  or  setting  the  boundaries,  or  making  a  survey  or  surveys 
of  the  estate  partitioned,  the  court  shall  allow  to  the  parties  to  the  action,^ 
who  have  paid  the  expense  of  such  litigation  or  other  proceedings,  all  the 
expenses  necessarily  incurred  therein,  except  counsel  fees,  which  shall  have 
accrued  to  the  common  benefit  of  the  other  tenants  in  common,  with  in- 
terest thereon  from  the  date  of  making  the  said  expenditures,  and  in  the 
same  kind  of  money  expended  or  paid,  and  the  same  must  be  pleaded  and 
allowed  by  the  court,  and  included  in  the  final  judgment,  and  shall  be  a 
lien  upon  the  share  of  each  tenant  respectively,  in  proportion  to  his  interest, 
and  shall  be  enforced  in  the  same  manner  as  taxable  costs  of  partition  are 
taxed  and  collected. 

Legislation  8  798.  1.  Enacted  April  1,  1872, 
and  then  read:  "If  it  appears  to  the  court  that 
other  actions  or  proceedings  have  been  prosecuted 
or  defended  by  any  of  the  tenants  in  common,  for 
the  protection,  confirmation,  or  perfecting  of  the 
title,  or  settling  the  boundary,  or  making  a  survey 
or  surveys  of  the  estate  partitioned,  the  court  must 
allow  to  the  parties  who  have  paid  the  expense  of 


such  necessary  litigation,  or  other  proceedings,  all 
the  expenses  necessarily  so  incurred  therein,  which 
shall  have  accrued  to  the  common  benefit  of  the 
other  tenants  in  common,  with  interest  thereon 
from  the  date  of  making  the  expenditures;  and 
the  same  must  be  allowed  and  taxed,  and  in- 
cluded in  the  final  judgment  as  costs  are  allowed, 
taxed,   and  included  in  the  judgment." 


945  PARTITION — ABSTRACT,   MADE  HOW,  ETC. — INTEREST.         §§  799-801 

2.  Repealed  by  Code  Amdts.  1873-74,  p.  326.  Costs  Of  partition.    Sne  note  ante,  §  796. 

■,^rr\^^!i'I'""'^^oo''"'^    amended    by    Code    Amdts.  ^q^j,    COMMI.S.SIONERS'    NOTE.      This    .ec- 

§  799.  Abstract  of  title  in  action  for  partition.  When  cost  of,  allowed. 
If  it  is  necessary  to  have  an  abstract  of  title  of  the  property  to  be  parti- 
tioned, the  plaintiff  may  procure  one  before  commencing:  the  action,  and 
may,  in  his  complaint,  state  that  he  has  done  so,  and  that  tlie  abstract  is 
subject  to  the  inspection  and  use  of  all  the  parties  to  tlie  action,  desiu'nat- 
ing  a  place  where  it  will  be  kept  for  such  inspection.  Otherwise  the  court 
may,  upon  application  of  any  one  of  the  parties,  authorize  him  to  procure 
an  abstract,  which,  when  made,  shall  be  kept  at  some  place  desii^natcd  by 
the  court  for  the  inspection  and  use  of  all  parties,  any  of  whom  is  entitled 
to  make  a  copy  thereof.  The  expense  reasonably  incurred  in  procuring- 
such  abstract  must  be  allowed  to  the  party  incurring  it,  with  interest 
thereon  from  the  commencement  of  the  action,  if  it  had  been  procured 
liefore  that  time,  otherwise  from  the  time  of  payment. 

Legislation  g  799.    1.    Enacted    April    1,    1872,  failed    to    procure    .such    abstract    before    commen- 

and   then   read;    "If   it   appears   to   the   court    that  cing  the  action,   and  any   defendant   shall    procure 

it  was  necessary  to  have  made  an  abstract  of  the  the  same  to  be  made,  he  shall,  as  soon  as  he  ha» 

title   to   the   property   to  be  partitioned,    and  such  directed    it    to    be    made,    tile    a    notice    thereof    in 

abstract    shall    have   been   procured    by    the   plain-  the  action  with  the  clerk  of  the  court,  stating  who 

titf,   or  if  the  plaintiff  shall  have   failed   to  have  the  is   making   the    same,    and   where    it    will    be    kept 

same  made  before  the  commencement   of  the  action,  when   finished.      The   court,    or   the   judge   thereof, 

and  any  one  of  the  defendants  shall  have  had  such  may  direct  from  time  to  time,  during  the  progress, 

abstract  afterwards  made,  the   cost   of  the  abstract,  of  the  action,   who   shall  have   the   custody  of  the 

with   interest    thereon    from   the   time   the   same   is  abstract." 

subject  to  the  inspection  of  the  respective  parties  2.   Amendment    by    Stats.    1901,    p.    165;    un- 
to the  action,  must  be  allowed  and  taxed.     When-  constitutional.     See  note  ante,  §  5. 
ever  such  abstract  is  produced  by  the  plaintiff,  be-  3.   Amended  bv  Stats.  1907,  p.  608;  the  code 
fore  the  commencement  of  the  action,  he  must  file  commissioner    saving,     "The    amendment    corrects 
with  his  complaint  a  notice  that  an  abstract  of  the  an  error  by  striking  out  the  word  'produced'  and 
title  has  been  made,  and  is  subject  to  the  inspec-  inserting  the  word  'procured.'  " 
tion  and  use  of  all  the  parties  to  the  action,  desig- 
nating   therein    where    the    abstract    will    be    kept  CODE    COMMISSIONERS'    NOTE.      This    sec- 
tor   inspection.      But    if    the    plaintiff    shall    have  tion  was  added  by  act  of  .\pril  1,   1872. 

§  800.  Abstract,  how  made  and  verified.  The  abstract  mentioned  in  the 
last  preceding  section  may  be  made  by  any  competent  searcher  of  records, 
and  need  not  be  certified  by  the  recorder  or  other  officer,  but  instead 
thereof  it  must  be  verified  by  the  affidavit  of  the  person  making  it,  to  the 
effect  that  he  believes  it  to  be  correct;  but  the  same  may  be  corrected  from 
time  to  time  if  found  incorrect,  under  the  direction  of  the  court. 

Legislation  §  800.      Enacted  April  1,  1872.  tion  was  added  by  act  of  April  1,  1872. 

CODE    COMMISSIONERS'    NOTE.      This    sec- 

§  801.  Interest  allowed  on  disbursements  made  under  direction  of  the 
court.  Whenever,  during  the  progress  of  the  action  for  partition,  any  dis- 
bursements shall  have  been  made,  under  the  direction  of  the  court  or  the 
judge  thereof,  by  a  party  thereto,  interest  must  be  allowed  thereon  from 
the  time  of  making  such  disbursements. 

Legislation  g  801.      Enacted  April  1,  1872.  tion  was  added  by  act  of  April  1,  1872. 

CODE    COMMISSIONERS'    NOTE.      This    sec- 
1  Fair. — 60 


§§  802,  803      ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


946 


CHAPTER  V. 

ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


5  802.    Sire  facies   [scire  facias]   abolished. 

§  803.    Action  may  be  brought  against  any  party 

usurping,  etc.,  any  ofifice  or  franchise. 
§  804.     Name   of  person  entitled  to  office  may  be 

set    forth    in    the    complaint.      If    fees 

have   been  received  by   the  usurper,   he 

may  be  arrested. 
§  805.    Judgment    may    determine    the    rights    of 

both  incumbent  and  claimant. 


§  806.     When  rendered  in  favor  of  applicant. 

§  807.     Damages  may  be  recovered  by  successful 

applicant. 
§  808.     When     several     persons    claim    the    same 

office,    their   rights    may    be    determined 

by  a  single  action. 
§  809.     If  defendant  found  guilty,  what  judgment 

to  be  rendered  against  him. 
§  810.     Actions  on  information.      Undertaking. 


§  802.     Sire  facies  [scire  facias]  abolished.     The  writ  of  sire  facies  [scire 
facias!  is  abolished. 


Corporations,  dissolution  of.  See  Civ.  Code, 
Legislation,  §  399. 

Eeceivers,     upon    dissolution    of    corporation. 

Ante,  §  565. 

Legislation  §  802.  1.  Enacted  March  11,  1872, 
and    then    read:    "The   writ    of    scire    facias,    the 

writ  of  quo  warranto,  and  proceedings  by  in- 
formation in  the  nature  of  quo  warranto,  are 
abolished.  The  remedies  obtainable  in  these  forms 
may  hereafter  be  obtained  by  civil  actions,  under 
the  provisions  of  this  chapter." 

2.   Amended  by  Code  Amdts.  1880,  p.  11. 

Writ  of  scire  facias.  Scire  facias  was 
the  remedy  by  means  of  which  a  govern- 
meut  patent  for  land  might  be  attacked  by 
a  subsequent  patentee  of  the  same  land, 
no  collateral  attack  upon  such  patent  being 


permissible.  O'Connor  v.  Frasher,  56  Cal. 
499.  The  writ  of  scire  facias  was  formerly 
used  by  government  as  a  mode  to  ascer- 
tain and  to  enforce  the  forfeiture  of  a 
corporate  charter,  in  cases  where  there 
was  a  legal  existing  body  capable  of  act- 
ing, but  which  had  abused  its  power;  it 
did  not  lie  in  case  of  a  mere  de  facto  cor- 
l^oration;  it  was  necessary  that  the  gov- 
ernment should  be  a  party  to  the  suit,  for 
the  judgment  was,  that  the  parties  be 
ousted  and  the  franchise  seized  into  the 
hands  of  the  government.  People  v.  Dash- 
away  Association,  84  Cal.  114;  12  L.  R.  A. 
117;  24Pac.  277. 


§  803.  Action  may  be  brought  against  any  party  usurping,  etc.,  any 
office  or  franchise.  An  action  may  be  brought  by  tlie  attorney-general,  in 
th~e  name  of  the  people  of  this  state,  upon  his  own  information,  or  upon  a 
complaint  of  a  private  party,  against  any  person  who  usurps,  intrudes  into, 
or  unlawfully  holds  or  exercises  any  public  office,  civil  or  military,  or  any 
franchise,  or  against  any  corporation,  either  de  jure  or  de  facto,  which 
usurps,  intrudes  into,  or  unlawfully  holds  or  exercises  any  franchise,  within 
this  state.  And  the  attorney-general  must  bring  the  action,  whenever  he 
has  reason  to  believe  that  any  such  office  or  franchise  has  been  usurped, 
intruded  into,  or  unlawfully  held  or  exercised  by  any  person,  or  when  he 
is  directed  to  do  so  by  the  governor. 


Complaint.    Post,  §  804. 

Security  by  relator.    Post,  §  810. 

Co-operative  business  association,  attorney-gen- 
eral may  inquire  into  right  of,  to  do  business. 
See  Civ.  Code,  5  653k. 

Franchise.    Civ.  Code,  §  358. 

Dissolution  of  corporations.  Civ.  Code,  §§  399, 
400. 

Quo  warranto,  what  court  may  issue.  Ante, 
§  70,  subd.  5. 

Office,    title   to.      Contest.     Post,  §§  1111-1127. 

Mandamus  to  compel  admission  to  office.  Post, 
§  1085. 

Legislation  §  803.  1.  Enacted  March  11,  1872 
(based  on  Practice  Act.  §  310),  (1)  in  the  last 
sentence,  (a)  omitting  the  words  "it  shall  be  the 
duty  of"  after  "and,"  and  (b)  changing  "to"  to 
"must"  before   "bring." 

3.  Amendment  by  Stats.  1901,  p.  165;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Anui.ded  by  Stats.  1907,  p.  GOO,  (1)  in 
first  sentence,  (a)  changing  "the"  to  "a"  before 
"complaint,"  (b)  omitting,  after  "franchise,"  the 
words  "within  this  state,"  and  adding,  in  lieu 
thereof,  the  clause  beginning  "or  against"  and 
ending  "this  state" ;  the  code  commissioner  say- 
ing, "The  amendment  suggested  by  the  commis- 
sioner simply  added  to  the  original  section  as  it 
was  enacted  March  11,  1872,  the  following  sen- 
tence:   'And  if  it   is   claimed  that   a   corporation. 


either  de  jure  or  de  facto,  is  exercising  a  fran- 
chise which  it  is  not  authorized  to  exercise,  or  is 
exercising  corporate  functions  when  not  author- 
ized to  do  so,  such  corporation  must  be  made  a 
party  defendant.'  This  was  struck  out  on  the 
floor  of  the  senate,  January  31,  1907,  and  the 
following  inserted  after  the  word  'franchise,' 
where  it  first  appears:  'or  against  any  corpora- 
tion, either  de  jure  or  de  facto,  which  usurps,  in- 
trudes into,  or  unlawfully  holds  or  exercises  any 
franchise.'  " 

Constitutionality  of  section.  Whether 
§  5  of  article  VI  of  the  constitution  of 
1879,  and  the  amendment  to  §  76,  ante,  in 
ISSO,  reviving  the  writ  of  quo  warranto, 
abolished  by  §  802  on  the  adoption  of  the 
codes  in  1872,  have  or  have  not  had  the 
effect  of  repealing  this  section,  can  make 
but  little  difference,  as  the  power  under  a 
writ  of  quo  w^arranto  is  quite  as  broad  as 
under  the  statute,  and  an  information  or 
complaint  sufficient  under  this  chapter  will 
be  sustained  as  in  support  of  a  writ  of 
quo  warranto,  if  the  proper  parties  are  be- 
fore the  court.   People  v.  Dashaway  Asso-' 


947 


QUO  WARRANTO — INFORMATION   IN   NATURE  OF. 


803 


oiation,  84  Cal.  114;  12  L.  R.  A.  117;  24 
Pac.  277.  The  statute  embodied  in  this 
chapter  is  constitutional;  first,  it  may  1)6 
considered  as  a  mode  of  procedure  for  the 
exercise  of  the  jurisdiction  in  quo  war- 
ranto conferred  by  the  constitution;  and 
second,  it  is  an  action,  ami  the  lejjislature 
is  not  prohibited  by  the  constitution  from 
providing  for  such  an  action.  I'eople  v. 
Stanford,  77  Cal.  3G0;  2  L.  R.  A.  92;  IS 
Pac.  85;  19  Pac.  693;  People  v.  Dashaway 
Association,  84  Cal.  114;  12  L.  R.  A.  117; 
24  Pac.  277. 

Construction  of  section.  A  proceeding 
under  this  chapter  is  substantially  equiva- 
lent to  that  by  quo  warranto;  it  is  the 
same  as  quo  warranto,  with  something 
added.  People  v.  Perry,  79  Cal.  105;  21 
Pac.  423;  People  v.  Superior  Court,  114 
Cal.  466;  46  Pac.  383.  Proceedings  in  the 
nature  of  quo  warranto  furnish  an  apjiro- 
priate  and  adequate  remedy  for  the  usurpa- 
tion of  an  ottice  or  franchise.  Barcndt  v. 
McCarthy,  160  Cal.  680;  118  Pac.  228; 
People  V.  Sacramento  Drainage  District, 
155  Cal.  373;  103  Pac.  207;  People  v. 
Rodgers,  118  Cal.  393;  46  Pac.  740;  50  Pac. 
6.68;  People  v.  Dashaway  Association,  84 
Cal.  114;  12  L.  R.  A.  117;  24  Pac.  277; 
Havemever  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Rep.  192;  10  L.  R.  A.  627;  24 
Pac.  121;  People  v.  Bingham,  82  Cal.  238; 
22  Pac.  1039;  People  v.  Perry,  79  Cal.  105; 
21  Pac.  423;  People  v.  Henshaw,  76  Cal. 
436;  18  Pac.  413;  Kelly  v.  Edwards,  69 
Cal.  460;  11  Pac.  1;  People  v.  Lawley,  17 
Cal.  App.  331;  119  Pac.  1089.  This  section 
provides  for  an  action  against  one  who 
unlawfully  exercises  any  public  office  or 
.  any  franchise.  Ex  parte  Henshaw,  73  Cal. 
486;  15  Pac.  110.  This  chapter,  relating 
to  actions  for  usurpation  of  an  office  or  a 
franchise,  provides,  in  effect,  for  an  in- 
formation in  the  nature  of  quo  warranto, 
the  remedy  or  proceeding  being  extended 
to  usurpations  of  or  intrusions  into  any 
office  or  franchise,  and  is  constitutional. 
People  V.  Stanford,  77  Cal.  360;  2  L.  R.  A. 
92;  18  Pac.  85;  19  Pac.  693.  Proceedings 
under  this  chapter  were  maintained  in  the 
following  cases  to  question  the  validity 
of  the  election,  appointment,  or  right  to 
hold  office  or  to  exercise  a  franchise,  but 
no  ruling  as  to  the  character  of  the  fran- 
chise was  maile.  People  v.  Brenham,  3 
Cal.  477;  People  v.  Hoge,  55  Cal.  612;  Peo- 
ple V.  Pfister,  57  Cal.  532;  People  v.  New- 
man, 96  Cal.  605;  31  Pac.  564;  People  v. 
Hecht,  105  Cal.  621;  45  Am.  St.  Rep.  96; 
27  L.  R.  A.  203;  38  Pac.  911;  People  v. 
Knight,  116  Cal.  108;  47  Pac.  925;  People 
v.  Shaver,  127  Cal.  347;  59  Pac.  784;  Peo- 
ple V.  Williamson,  135  Cal.  415;  67  Pac. 
504;  People  v.  Golden  Gate  Lodge,  12S 
Cal.  257;  60  Pac.  865.  The  action  under 
this  section  is  in  the  form  of  a  civil  ac- 
tion, and,  as  to  the  procedure  therein, 
follows  the  rules  prescribcil  for  civil  cases, 


but  the  judgment  rendered  therein,  ad- 
judging the  defendant  guilty  of  usurping 
the  franchise,  and  imposing  a  fine  there- 
for, is  ])enal  in  its  nature.  People  v.  Sutter 
Street  Rv.  Co.,  129  Cal.  545;  79  Am.  St. 
Rep.  137;  62  Pac.  104. 

Quo  warranto.  The  definition  of  the 
process  of  (juo  warranto  is,  that  it  is  in 
the  nature  of  a  writ  of  right  of  the  pul)lic 
against  him  who  usurj)s  any  oflice,  fran- 
chise, or  liberty,  to  inquire  by  what  au- 
thority he  sui)ports  his  claim,  in  order  to 
determine  the  right.  People  v.  Woodbury, 
14  Cal.  43.  Quo  warranto,  at  common  law, 
was  a  writ  which  issued  to  bring  the  de- 
fendant before  the  court  to  show  by  what 
authority  he  claimed  an  office  or  franchise, 
and  was  ai)i)licable  alike  to  cases  where 
the  defendant  never  had  a  right,  or  where, 
having  a  right  or  franchise,  he  had  for- 
feited it  by  neglect  or  abuse.  Peoi)le  v. 
Dashaway'  Association,  84  Cal.  114;  12 
L.  R.  A.'ll7;  24  Pac.  277.  Quo  warranto 
was  a  case  at  law;  it  afforded  the  legal 
remedy  for  the  usurpation  of  an  office. 
Buckner  v.  Veuve,  63  Cal.  304;  People  v. 
Perry,  79  Cal.  105;  21  Pac.  423;  People 
V.  Bingham,  82  Cal.  238;  22  Pac.  1039; 
Wheeler  v.  Donnell,  110  Cal.  655;  43  Pac.  1. 
A  proceeding  by  quo  warranto  is,  in  form, 
a  criminal  proceeding,  though,  in  sub- 
stance, a  civil  one  in  most  cases;  it  seems 
to  be,  and  generally  is,  a  mixeil  action  for 
the  double  purpose  of  vindicating  public 
policy  and  enforcing  a  private  remedy. 
People  v.  Gillespie,  1  Cal.  342.  Proceed- 
ings by  quo  warranto,  like  writs  of  man- 
damus and  other  prerogative  writs,  rest 
in  the  discretion  of  the  court;  the  exercise 
of  the  power  is  had  only  in  cases  where 
the  public  convenience  and  welfare  re- 
quires it;  the  writ  is  the  state's  right,  and 
is  only  tc  be  issued  for  the  state's  benefit. 
Searcy  v.  Grow,  15  Cal.  117. 

Information  in  nature  of  quo  warranto. 
Informations  in  the  nature  of  quo  warranto 
existed  at  common  law;  in  England,  they 
were  filed  by  the  attorney-general,  or  by 
the  king's  coroner,  of  his  own  authority; 
afterwards,  by  the  king's  coroner,  under 
the  direction  of  the  court  of  king's  bench, 
and  still  later,  in  certain  cases,  b}'  leave 
of  the  court;  the  latter,  which  was  under 
the  statute  of  Anne,  introduced  a  more 
coijvenient  mode  of  proceeding  to  inquire 
into  a  usurpation  of  or  an  intrusion  into 
certain  enumerated  offices  and  franchises. 
People  v.  Stanford,  77  Cal.  360;  2  L.  R.  A. 
92;  IS  Pac.  85;  19  Pac.  693.  The  office  of 
a  writ  issued  upon  an  information  in  the 
nature  of  quo  warranto  is  to  prevent  the 
usurpation  of  any  office,  franchise,  or  lib- 
erty, as  also  to  afford  a  remedy  against 
corporations  for  a  violation  of  their  char- 
ters tending  to  a  forfeiture  thereof.  Ex 
parte  Attorney-General,  1  Cal.  85.  An  in 
formation  in  the  nature  of  quo  warranto, 
which  has  succeeded  the  writ  of  that  name, 


803 


ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


948 


was  original]}',  in  form,  a  criminal  pro- 
ceeding to  imnish  the  usurpation  of  a 
franchise  by  a  fine,  as  well  as  to  seize  the 
franchise;  and  this  information  has  now 
become,  in  substance,  a  civil  proceeding 
to  try  the  mere  right  to  the  franchise  or 
oflfice.  People  v.  Dashaway  Association,  84 
Cal.  114;  12  L.  E.  A.  117;  "24  Pac.  277. 

Attorney-general  may  bring  action.  An 
action  may  be  brought  by  the  attorney-gen- 
eral for  the  usurpation  of  an  office  or  a 
franchise.  People  v.  Stanford,  77  Cal.  360; 
2  L.  E.  A.  92;  18  Pac.  85;  19  Pac.  693. 
The  attempt  of  a  municipal  corporation  to 
govern  and  tax  the  inhabitants  of  territory 
annexed  to  that  described  in  its  charter, 
and  outside  of  its  charter  limits,  is  the 
usurpation  of  a  franchise,  for  which  the 
attorne3'-general  is  authorized  to  bring  an 
action  in  the  name  of  the  people.  People 
V.  Oakland,  92  Cal.  611;  28  Pac.  807.  A 
city  has  no  power  to  institute  an  action  to 
secure  a  forfeiture  of  a  street-railway  fran- 
chise: that  power  is  vested  in  the  attorney- 
general.  People  v.  Sutter  Street  Rv.  Co., 
117  Cal.  604;  49  Pac.  736. 

Action  upon  complaint  of  private  party. 
The  attorney-general  has  control  of  an  ac- 
tion of  quo  warranto,  although  it  is' brought 
upon  the  relation  of  a  private  party.  People 
V.  Sutter  Street  Ey.  Co.,  117  Cal.  604;  49 
Pac.  736.  It  is  in  no  legal  sense  under  the 
control  of  the  relator;  and  a  stipulation 
made  by  the  relator  or  his  counsel  is  not 
binding  on  the  state.  People  v.  Holden,  28 
Cal.  123.  Where  the  term  of  office  of  an 
incumbent  has  expired,  quo  warranto  lies 
in  the  name  of  the  people,  upon  relation  of 
one  claiming  to  have  been  elected  as  his 
successor,  to  remove  him  from  an  unlawful 
holding  over;  it  cannot  concern  the  defend- 
ant whether  the.  relator  is  entitled  to  the 
office,  as  against  an  intervening  claimant, 
nor  whether  the  court,  in  the  contest 
between  the  relator  and  the  other  claim- 
ant, erred  in  its  decision  in  favor  of  the 
relator.  People  v.  Campbell,  138  Cal.  11; 
70  Pac.  918.  The  relator  need  not  be  shown 
to  be  entitled  to  the  office  usurped  (People 
V.  Bingham,  82  Cal.  238;  22  Pac.  1039; 
People  v.  Superior  Court,  114  Cal.  466;  46 
Pac.  383);  and  the  proceeding  is  not  prop- 
erly by  relation,  unless  the  relator  has  an 
interest  in  the  proceeding.  People  v.  Sutter 
Street  Ry.  Co.,  117  Cal.  604;  49  Pac.  736. 
The  fact  that  the  attorney-general  has  un- 
necessarily added  the  name  of  a  relator  in 
an  action  to  forfeit  a  franchise,  does  not 
convert  the  proceeding  into  a  private  ac- 
tion. People  V.  Sutter  Street  Ry.  Co.,  117 
Cal.  604;  49  Pac.  736.  Assuming  that  the 
courts  have  power  to  control  the  discretion 
of  the  attorney-general  in  refusing  leave  to 
a  private  person  to  sue  under  this  section, 
that  power  shouhl  be  exercised  only  where 
the  abuse  of  discretion  by  the  attorney- 
general,  in  refusing  such  leave,  is  extreme 
and  clearly  indefensible;  otherwise  the 
order  of  the  court  is  an  abuse  of  its  own 


discretion.    Lamb  v.  Webb,   151   Cal.   451; 
91  Pac.  102. 

Subject-matter  of  action.  The  dissolution 
of  a  corporation,  at  the  instance  of  the 
state,  or  the  forfeiture  of  its  franchise,  can 
only  be  accomplished  by  quo  warranto  pro- 
ceedings. Madera  Ry.  Co.  v.  Raymond 
Granite  Co.,  3  Cal.  App.  668;  87  Pac.  27. 
The  proper  remedy  to  question  the  validity 
0^  the  action  of  a  board  of  supervisors,  in 
declaring  territory  described  in  its  order 
to  be  duly  incorporated  under  a  specified 
name  as  a  municipal  corporation,  is  by  a 
proceeding  in  quo  warranto.  Beaumont  v. 
Samson,  5  Cal.  App.  491;  90  Pac.  839. 
Drainage,  irrigation,  and  reclamation  dis- 
tricts are  public  corporations,  and  the- 
proper  remedy  to  question  their  acts  is  by" 
a  proceeding  in  quo  warranto,  whether  cor- 
porations de  jure  or  de  factor.  Keech  v.. 
Joplin,  157  Cal.  1;  106  Pac.  222;  Reclama- 
tion District  No.  765  v.  McPhee,  13  Cal. 
App.  382;  109  Pac.  1106.  Whether  or  not 
the  petition  for  the  annexation  of  territory 
to  a  city  was  signed  by  the  requisite  num- 
ber of  electors,  cannot  be  inquired  into  hy 
the  court  in  an  action  of  quo  warranto,, 
where  the  determination  whether  it  was  so- 
signed  was  a  question  of  fact,  submitted  by 
the  statute  to  the  decision  of  the  city  coun- 
cil. People  v.  Los  Angeles,  133  Cal.  338;  65 
Pac.  749.  The  result  of  an  election  may  be 
tested  by  a  proceeding  upon  an  informa- 
tion in  the  nature  of  quo  warranto.  Stone 
v.  Elkins,  24  Cal.  125.  A  proceeding  for 
the  confirmation  of  the  organization  of  an, 
irrigation  district,  under  the  act  of  March 
16,  1889,  is  in  rem,  and  the  decree  of  con- 
firmation is  conclusive  upon  the  state,  as- 
well  as  upon  others,  that  all  of  the  steps 
necessary  for  the  proper  organization  of 
the  district  had  been  taken,  and  the  con- 
trary cannot  be  shown  in  an  action  of  quo 
warranto.  People  v.  Perris  Irrigation  Dist.,. 
132  Cal.  289;  64  Pac.  399. 

Public  officers,  who  are.  A  pilot  in  the- 
port  of  San  Francisco  was  an  officer,  under 
the  act  of  1854,  as  amended  in  1858.  Peo- 
ple v.  Woodbury,  14  Cal.  43.  The  physi- 
cian of  a  county  hospital  is  an  officer,, 
where  the  law  authorizing  the  appoint- 
ment of  such  physician  fixes  his  term  of 
office,  provides  for  his  salary,  and  pre- 
scribes his  duties.  People  v.  Harrington,  63 
Cal.  257;  and  see  Wall  v.  Board  of  Direc- 
tors, 145  Cal.  468;  78  Pac.  951.  A  gradu- 
ate of  medicine,  appointed  by  a  board  of 
supervisors  as  a  county  physician,  or  hos- 
pital physician,  under  the  County  Govern- 
ment Act  of  1897  (§  25,  subd.  5),  to  attend 
upon  the  indigent  sick  and  dependent  i)oor 
of  the  county,  is  not  a  public  officer,  but  a 
mere  employee  of  the  board,  and  hence  is 
not  subject  to  proceedings  in  quo  warranto 
upon  relation  of  the  attorney-general.  Peo- 
ple V.  Wheeler,  136  Cal.  652;  69  Pac.  435. 
A  member  of  the  board  of  health  of  the 
city  and  county  of  San  Francisco  is  an 
officer,  within  the  meaning  of  the  constitu- 


949 


USURPER — FRANCHISE — TITLE  TO  OFFICE  TRIED   HOW. 


§803 


tion.  People  V.  Perry,  79  C'al.  in5;  21  Pac. 
423.  A  director  in  a  [)rivate  corporation 
•cannot  be  said  to  hold  a  public  office. 
Foster  v.  Superior  Court,  11.')  Cal.  279;  47 
Pac.  58. 

Usurper,  who  is.  When  the  question  as 
to  who  is  the  legal  successor  of  an  officer 
is  in  litigation  upon  a  point  of  law,  the 
incumbent  is  bound  to  know  who  his 
successor  is,  and  if  his  legal  successor 
qualifies  and  demands  the  office,  and  the 
incumbent  refuses  to  deliver  it  up  uj>on 
the  termination  of  the  litigation,  he  be- 
comes a  usurper  ab  initio.  People  v. 
Smyth,  28  Cal.  21.  An  office  becomes 
vacant,  ipso  facto,  upon  the  incumbent 
■ceasing  to  be  an  inhabitant  of  the  district 
for  which  he  was  elei'ted;  and  one  ap- 
pointed to  fill  such  vacancy  is  not  a 
usurper,  merely  because  the  office  had  not 
^ireviously  been  declared  vacant.  People 
V.  Brite,  55  Cal.  79. 

Franchise,  what  is.  A  franchise  is  a 
particular  privilege  conferred  by  a  grant 
from  the  government  and  vested  in  in- 
dividuals. Ex  parte  Henshaw,  73  Cal.  486; 
15  Pac.  110;  People  v.  Stanford,  77  Cal. 
360;  2  L.  R.  A.  92;  18  Pac.  85.  Franchises 
are  special  privileges  conferred  by  govern- 
ment upon  individuals,  and  which  do  not 
belong  to  the  citizens  of  the  country  gen- 
■erally,  of  common  right;  the  common  right 
refers  to  the  right  of  citizens  generally  at 
•common  law,  the  investiture  of  which  is 
not  to  be  looked  for  in  any  special  law, 
-whether  established  by  the  constitution  or 
iDy  an  act  of  the  legislature;  and  although 
"a  right,  such  as  a  right  to  lay  down  pipes 
in  the  streets  of  a  city,  and  to  collect 
rates  for  water  furnished,  may  be  granted 
lr>y  the  constitution  to  every  person,  yet  it 
does  not  follow  that  such  right  is  not  a 
franchise;  they  are  vested  by  a  grant  of 
the  sovereign  power,  and  not  by  the  com- 
mon law,  and  the  generality  of  the  grant 
does  not  deprive  them  of  the  character  of 
franchises.  Spring  Valley  Water  Works  v. 
Schottler,  62  Cal.  69.  The  right  to  collect 
tolls  on  roads  and  bridges  is  a  franchise, 
the  character  of  which  may  be  defined  as 
a  certain  privilege  of  a  public  nature,  con- 
ferred by  grant  from  the  government  and 
"vested  in  individuals;  it  makes  no  differ- 
ence whether  the  grant  is  made  directly 
"by  the  legislature,  or  by  a  subordinate 
laoAy  to  whom  the  power  is  delegated;  it  is 
still  a  grant  emanating  from  the  sovereign 
authority  of  the  state;  a  grant  of  such  a 
franchise  by  a  board  of  supervisors  has 
the  same  standing,  in  respect  to  its  valid- 
ity, the  presumptions  in  its  favor,  and  the 
Tuode  in  which  it  may  be  attacked,  as  a 
grant  of  any  other  right,  privilege,  or 
thing  made  by  any  department  of  the  gov- 
•crnment,  under  the  authority  of  law. 
Truckee  etc.  Turnpike  Road  Co.  v.  Camp- 
bell, 44  Cal.  89;  Bartram  v.  Central  Turn- 
pike Co.,  25  Cal.  284;  Volcano  Caiiou  Road 


Co.  V.  Board  of  Sui)ervisors,  88  Cal.  634; 
26  Pac.  5].'i.  The  right  to  be  a  corporation 
is,  in  itself,  a  fran(liise.  Peoi)le  v.  Sel- 
fridge,  52  Cal.  331;  People  v.  Montocito 
Water  Co.,  97  Cal.  276;  33  Am.  St.  Rep. 
172;  32  Pac.  236.  The  very  existence  of  a 
corporation,  as  such,  ia  a  franchise,  ami 
it  exercises  its  franchise  in  every  act 
which  it  performs  as  a  corporation;  but  a 
corporation,  whose  existence  is  a  franchise, 
may  possess  powers  and  j)rivilege3  which, 
in  themselves,  arc  not  franchises,  such  as 
the  right  to  bank,  or  the  right  to  buy 
anil  sell  ])roj>erty,  real  and  jiersonal,  but  it 
usually  owns,  with  such  jirivileges,  some 
that  are  franchises,  but,  whether  the  pow- 
ers are  entirely  of  the  kind  which  are 
franchises  or  not,  its  existence  and  right 
to  employ  its  corporate  powers  is  a  fran- 
chise. Spring  Valley  Water  Works  v. 
Schottler,  62  Cal.  69.  The  right  of  laying 
down  ami  maintaining  ]tif)es  in  the  streets 
of  a  city,  by  which  water  or  gas  is  con- 
veyed, and  to  collect  rates  for  water  or 
gas,  is  a  franchise.  San  .Jose  Gas  Co.  v. 
.lanuary,  57  Cal.  614;  Si)ring  Vallev  Water 
Works  V.  Schottler,  62  Cal.  69.  An  office 
is  of  the  nature  of  a  franchise,  in  that  it 
can  be  derived  only  from  the  sovereign. 
Ex  parte  Henshaw,  73  Cal.  486;  15  Pac. 
110.  The  right  and  power  claimed  by  a 
municipal  corporation  to  govern  and  tax 
the  inhabitants  of  a  territorj-  annexed  to 
that  described  in  its  charter,  is  a  fran- 
chise, in  addition  to  and  distinct  from  that 
of  being  a  corporation.  People  v.  Oakland, 
92  Cal.  611;  28  Pac.  807. 

Title  to  public  office  tried  how.  There 
are  two  separnte  and  distinct  methods  pro- 
vided in  this  code  for  testing  the  title  to 
an  office:  the  first  is  by  proceedings  under 
this  chapter  (§§  802-810),  in  the  nature  of 
quo  warranto,  against  any  person  who 
usurps  or  intrudes  into  a  public  office;  and 
the  second  is  by  contesting  the  election 
under  §§  1111-1127,  post.  Powers  v.  Hitch- 
cock, 129  Cal.  325;  61  Pac.  1076;  and  see 
Satterlee  v.  San  Francisco,  23  Cal.  314. 
The  act  conferring  upon  any  elector  the 
right  to  contest  the  election  of  any  person 
who  has  been  declared  duly  elected  to  a 
public  office,  does  not  deprive  the  people, 
in  their  sovereign  capacity,  on  complaint 
made,  of  their  right  to  inquire  into  the 
authority  by  which  any  person  assumes  to 
exercise  the  functions  of  a  public  office  or 
fraiicliise,  or  to  remove  him  therefrom  if 
it  is  shown  that  he  is  a  usurper  having  no 
legal  title  thereto;  the  two  remedies  are 
distinct,  the  one  belonging  to  the  elector 
in  his  individual  capacity,  as  a  power 
granted,  and  the  other  to  the  people,  in 
the  right  of  their  sovereignty.  People  v. 
Holden,  28  Cal.  123.  An  information  in 
the  nature  of  quo  warranto  is  not  collateral, 
but  is  a  direct  proceeding  to  try  the  title 
to  an  office,  and  to  incpiire  into  all  the 
facts  upon  which   the   title  rests;   such  in- 


§803 


ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


950 


formation  is  the  direct  and  appropriate 
remedy  for  a  review.  People  v.  Scannell, 
7  Cal.  432.  The  actual  incumbent  of  an 
office  may  maintain  a  summary  proceeding, 
by  petition,  to  recover  the  books  and  papers 
pertaining  to  the  office;  his  right  to  the 
office  can  only  be  called  in  question  by  an 
information  against  him  in  the  nature  of 
quo  warranto,  and  such  right  cannot  be 
questioned  on  review  by  certiorari.  Hull  v. 
Superior  Court,  63  Cal.  Hi;  and  see  Lamb 
V.  Schottler,  54  Cal.  319.  The  contest  of 
the  right  of  an  actual  incumbent  in  posses- 
sion under  color  of  right  can  be  originated 
only  by  a  proceeding  by  information  in  the 
nature  of  quo  warranto  against  him  as 
incumbent.  People  v.  Olds,  3  Cal.  167;  58 
Am.  Dec.  398;  Hull  v.  Superior  Court,  63 
Cal.  174.  One  in  possession  of  an  office 
to  which  he  was  not  duly  elected,  but  who 
holds  a  certificate  of  election,  proper  in 
form,  from  the  board  of  election  can- 
vassers, has  not  the  real  title,  but  only 
the  color  of  title  given  by  the  certificate, 
and  he  is  an  intruder  or  usurper,  or  one 
who  unlawfully  holds  and  exercises  office, 
and  an  action  may  be  maintained  against 
him,  under  this  section.  People  v.  Jones,  20 
Cal.  50.  The  forfeiture  of  the  right  to  office, 
by  failure  of  the  appointee  to  qualify  under 
the  commission  of  appointment  within  the 
time  provided  by  law,  may  be  determined 
in  an  action  under  this  chapter.  People  v. 
Perkins,  85  Cal.  509;  26  Pac.  245.  Under 
this  section,  claims  to  the  office  of  a  mem- 
ber of  a  municipal  board  of  health  may 
be  determined.  People  v.  Perry,  79  Cal. 
105;  21  Pac.  423.  One  holding  over  after 
the  expiration  of  his  term  of  office,  and 
who  is  entitled  to  retain  office  until  the 
appointment  of  his  successor,  cannot  be 
ousted  by  a  new  appointee,  who  does  not 
possess  the  qualifications  prescribed  by 
law:  in  such  case  there  is  not  a  ground  for 
a  judgment  that  he  wrongfully  usurps  or 
holds  the  office.  People  v.  King,  127  Cal. 
570;  60  Pac.  35. 

Public  officers,  removal  of  for  malfea- 
sance. The  act  of  March  30,  1874  (Stats. 
1873-74,  p.  911),  providing  for  the  removal, 
of  certain  officers  for  malfeasance  in  office, 
was  repealed  by  the  constitution  of  1879, 
and  its  place  supplied  by  §§  55,  184,  of  the 
County  Government  Act  of  1883.  Eraser  v. 
Alexander,  75  Cal.  147;  16  Pac.  757.  A 
proceeding,  by  accusation,  for  misdemeanor 
in  office,  under  §  772  of  the  Penal  Code,  is 
in  no  sense  a  proceeding  in  the  nature  of 
quo  warranto,  title  to  office  not  being  in 
dispute.  Wheeler  v.  Donnell,  110  Cal.  655; 
43  Pac.  1. 

De  facto  officers,  validity  of  acts  of. 
The  acts  of  a  de  facto  sheriff,  who  partici- 
pated in  the  drawing  of  a  jury,  in  a  crimi- 
nal case,  are  good.  People  v.  Eoberts,  6 
Cal.  214.  One  who  assumes  office  under 
color  of  election  is  an  officer  de  facto,  and 
holds  a  vested  right  to  act  as  such  until 
his  right  is  questioned  in  a  proper  proceed- 


ing for  that  purpose.  People  v.  Hammond, 
109  Cal.  384;  42  Pac.  36.  Although  the  ac- 
tion of  a  de  facto  officer  to  hold  an  existing 
office  cannot  be  questioned  collaterally,  yet 
this  principle  does  not  apply  when  the  office 
does  not  exist:  there  cannot  be  a  de  facto 
judge  of  a  court  that  has  no  legal  exist- 
ence. People  v,  Toal,  85  Cal.  333;  24  Pac. 
603. 

Surrender  of  office,  effect  of.  Where  an 
officer  surrenders  his  office  upon  the  ap- 
parent election  of  his  successor,  he  cannot 
thereafter  resume  his  functions,  upon  the 
ground  that  the  election  of  his  successor 
was  declared  void  and  annulled  on  the 
ground  of  his  ineligibility,  after  he  had 
entered  upon  the  duties  of  the  office.  People 
V.  Rodgers,  118  Cal.  393;  46  Pac.  740;  50 
Pac.  668. 

Collateral  attack  on  public  officer.  The 
validity  of  an  election,  or  the  right  to  take 
and  hold  office,  cannot  be  inquired  into  in 
a  collateral  action  or  proceeding  (Satter- 
lee  V.  San  Francisco,  23  Cal.  314;  Shores  v 
Scott  River  Water  Co.,  17  Cal.  626;  People 
V.  Sassovich,  29  Cal.  480;  Susan ville  v. 
Long,  144  Cal.  362;  77  Pac.  987);  nor 
can  the  right  of  a  de  facto  justice  of  the 
peace  to  exercise  the  functions  of  his  office 
be  questioned  in  a  collateral  proceeding. 
People  V.  Sehorn,  116  Cal.  503;  4S  Pac.  495; 
People  V.  Provines,  34  Cal.  520;  and  see 
People  V.  Mellon,  40  Cal.  648. 

Perversion  and  usurpation  of  franchise, 
and  action  therefor.  Cases  of  forfeiture 
are  said  to  be  divided  into  two  great 
classes:  1.  Cases  of  perversion,  as  where  a 
corporation  does  an  act  inconsistent  with 
the  nature,  and  destructive  of  the  ends  and 
purjjoses,  of  the  grant,  in  which  cases,  un- 
less the  perversion  is  such  as  to  amount 
to  an  injury  to  the  public,  who  are  inter- 
ested in  the  franchise,  it  will  not  work  a 
forfeiture;  2.  Cases  of  usurpation,  as  where 
a  corporation  exercises  a  power  it  has  no 
right  to  exercise,  in  which  case  the  ques- 
tion of  forfeiture  is  not  dependent,  as  in 
the  former,  upon  any  interest  of  or  injury 
to  the  public.  People  v.  Dashawav  Asso- 
ciation, 84  Cal.  114;  12  L.  R.  A.  117;  24 
Pac.  277;  People  v.  Rosenstein-Cohn  Cigar 
Co.,  131  Cal.  153;  63  Pac.  163.  Corpora- 
tions are  creatures  of  the  law;  and  when 
they  fail  to  perform  the  duties  for  which 
they  were  incorporated,  and  in  which  duties 
the  public  have  an  interest,  or  when  they 
do  acts  they  are  not  authorized  or  are 
forbidden  to  do,  the  state  may  forfeit  their 
franchises,  and  dissolve  them  by  an  in- 
formation in  the  nature  of  quo  warranto. 
People  V.  Dashaway  Association,  84  Cal. 
114;  12  L.  R.  A.  117;  24  Pac.  277.  The 
principle  of  a  forfeiture  is,  that  the  fran- 
chise is  a  trust,  and  the  terms  of  the 
charter  are  conditions  of  the  trust;  and  the 
violation  of  such  conditions  works  a  for- 
feiture of  the  charter.  People  v.  Dashawav 
Association,  84  Cal.  114;  12  L.  R.  A.  117"';, 
24  Pac.  277;  Havemeyer  v.  Superior  Court, 


951 


USURPATION,  ETC.,   OF   FRANCHISE — WHO  MAY   BRING   ACTION.  §  803 


84  Cal.  327j  18  Am.  St.  Kop.  192;  10 
L.  K.  A.  627;  24  Pac.  121;  Peoi)le  v.  Rosen- 
stein-Colm  Cigar  Co.,  131  Cal.  ]'>:];  G3  Pac. 
163.  Information  in  the  nature  of  quo 
warranto  lies  against  a  legally  existing 
corporation  for  abuse  of  its  franchises: 
scire  facias,  which  seems  to  have  been  the 
more  usual  proceeding  where  a  legally 
existing  body  had  abused  the  powers  and 
franchises  intrusted  to  it,  is  abolished. 
People  V.  Stanford,  77  Cal.  360;  2  L.  11.  A. 
92;  18  Pac.  85.  Where  the  articles  of  in- 
corporation declared  the  purpose  of  the 
company  to  be  to  transport  freight  and 
passengers,  and  upon  this  representation 
the  court  condemned  land,  under  the  right 
of  eminent  domain,  for  the  railway,  and 
such  railway,  when  constructed,  was  oper- 
ated exclusively  for  the  transportation  of 
coal,  the  proceedings  in  condemnation 
amounted  to  an  imposition  on  the  court, 
and  the  misuse  of  the  corporate  authority 
will  be  inquired  into  by  the  state,  in  order 
to  correct  the  abuse.  People  v.  Pittsburgh 
R.  R.  Co.,  53  Cal.  694.  Aa  information  in 
the  nature  of  quo  warranto  does  not  lie  to 
enforce  the  dissolution  of  a  corporation 
organized  merely  "to  promote  the  cause  of 
temperance,"  on  the  ground  that  it  has 
disregarded  its  corporate  trust  and  violated 
its  charter  by  perversion  and  misapplica- 
tion of  its  funds  from  the  object  for  which 
it  was  formed,  and  from  the  use  for  which 
the  funds  were  given  and  received,  by 
dividing  the  same  among  its  members,  for 
the  reason  that  the  perversion  of  the  funds 
is  not  an  injury  to  the  public.  People  v. 
Dashaway  Association,  84  Cal.  114;  12 
L.  R.  A.  117;  24  Pac.  277.  An  individual 
or  a  corporation  assuming,  without  grant, 
to  exercise  powers  which  are  prerogatives 
of  the  government,  and  such  as  can  be 
exercised  by  a  private  person  only  when 
granted  by  the  government,  should  be  ad- 
judged to  be  unlawfully  exercising  such 
powers.  Ex  parte  Henshaw,  73  Cal.  486;  15 
Pac.  110.  The  articles  of  incorporation  of 
a  manufacturing  company,  formed  to  own 
and  run  a  sawmill,  and  to  manufacture 
lumber  and  articles  made  of  wood,  are  not 
vitiated  by  including  therein  power  to 
operate,  construct,  maintain,  and  deal  in 
railroads,  tramways,  and  rights  of  way,  as 
part  of  the  manufacturing  plant;  and  an 
information  in  the  nature  of  quo  warranto, 
seeking  to  have  it  adjudged  that  such 
manufacturing  corporation  is  exercising  the 
corporate  functions  of  a  railroad  company 
without  right,  not  being  constituted  as  the 
code  requires  of  every  railroad  corporation, 
does  not  state  a  cause  of  action.  People  v. 
Mount  Shasta  Mfg.  Co.,  107  Cal.  256;  40 
Pac.  391.  Where  the  incorporators  of  a 
railroad  company  fail  to  subscribe  the 
amount  of  capital  stock  required  by  law, 
and  to  pay  the  prescribed  percentage 
thereof  in  cash,  their  acts  of  attempted  in- 
corporation and  organization  are  invalid, 
and  an  action  may  be  maintained,  upon  an 


information  in  the  nature  of  quo  warranto, 
to  prevent  the  incorporators  from  usurp- 
ing the  functions  of  a  railroad  company 
without  being  duly  incorjiorated  as  such. 
People  v.  Cliambers,  42  Cal.  2ul.  Where 
the  odicers  of  a  corporation,  organized 
under  a  particular  name,  in  the  exorcise  of 
its  franchises  use  an  abbreviation  of  that 
name,  there  is  not  a  usurpation,  and  a  pro- 
ceeding by  quo  warranto,  upon  the  part  of 
the  people,  cannot  be  maintained  to  oust 
them  from  the  enjoyment  of  tiiose  fran- 
chises. People  v.  Bogart,  45  Cal.  73;  and 
see  People  v.  Sierra  Buttes  etc.  Mining  Co., 
39  Cal.  514.  The  continued  exercise  of  a 
franchise,  without  right,  is  a  continuously 
renewed  usurpation,  on  which  a  new  cause 
of  action  arises  each  day;  and  the  sovereign 
power  has  at  all  times  the  right  to  inquire 
into  the  matter  of  the  user  of  a  franchise 
or  the  title  by  which  it  is  held.  People  v. 
Stanford,  77  Cal.  360;  2  L.  R.  A.  92;  18 
Pac.  85;  People  v.  Reclamation  District, 
121  Cal.  522;  50  Pac.  1068;  People  v. 
Jefferds,  126  Cal.  296;  58  Pac.  704.  The 
action  may  be  for  the  forfeiture  of  a  par- 
ticular franchise  or  of  the  whole  charter. 
People  V.  Dashaway  Association,  S4  Cal. 
114;  12  L.  R.  A.  117;  24  Pac.  277.  The 
state  acquires  no  lien  on  the  proiierty  of 
a  corporation  by  an  action  against  it  for 
the  forfeiture  of  its  charter,  and  cannot 
attack  a  sale  thereof,  made  pendente  lite; 
up  to  the  time  of  dissolution,  the  corpora- 
tion has  the  same  power  of  disposing  of  its 
property,  honestly  and  in  good  faith,  that 
any  corporation  has:  what  is  forfeited  to 
the  state,  and  all  that  is  forfeited,  is  the 
charter, — the  right  to  be  a  corporation, — 
and  this  is  taken  back  by  the  state,  solely 
upon  the  ground  that  the  condition  upon 
which  it  was  granted  has  been  violated. 
Havemeyer  v.  Superior  Court,  84  Cal.  327; 
18  Am.  St.  Rep.  192;  10  L.  R.  A.  627;  24 
Pac.  121.  The  actual  use  of  the  franchise 
by  the  defendant  is  not,  in  all  cases,  neces- 
sary, in  order  to  authorize  an  action  for 
the  usurpation  of  such  franchise;  as, 
where  the  forfeiture  of  a  franchise  to  main- 
tain a  street-railway  on  certain  streets  is 
sought  because  of  the  failure  of  the  com- 
pany to  comply  with  the  conditions  upon 
which  the  franchise  was  granted.  People 
V.  Sutter  Street  Ry.  Co..  117  Cal.  604;  49 
Pac.  736.  The  willful  acts  and  neglects  of 
the  officers  or  agents  of  a  corporation  are 
regarded  as  the  acts  and  neglects  of  the 
corporation,  and  render  it  liable  to  a  judg- 
ment or  decree  of  dissolution;  but  where 
the  officers  or  agents  have  departed  from 
their  duties  as  prescribed  by  the  corpora- 
tion, or  violated  their  instructions  in  the 
performance  of  the  acts  complained  of  and 
relied  upon  as  a  basis  for  forfeiture,  no 
such  forfeiture  will  be  declared.  People  v. 
Dashawav  Association,  84  Cal.  114;  12 
L.  R.  A."ll7;  24  Pac.  277.  Acts  sufficient 
to  cause  a  forfeiture  do  not,  per  se,  produce 
a  forfeiture:   the  corporation  continues  t-i 


§803 


ACTIONS  FOE  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


952 


exist  until  the  sovereignty  which  created 
it  shall,  by  proper  proceedings  in  a  proper 
court,  procure  an  adjudication  of  forfeiture 
and  enforce  it.  People  v.  Los  Angeles 
Electric  Ry.  Co.,  91  Cal.  338;  27  Pac.  673. 

Who  may  attack  franchise.  A  grant  of 
a  turnpike  franchise  is  not  liable  to  attack 
by  a  private  person,  nor  in  a  collateral 
proceeding,  for  mere  error  in  the  exercise 
of  the  authority  to  make  the  grant  (Truckee 
etc.  Turnpike  Eoad  Co.  v.  Campbell,  44  Cal. 
89) ;  nor  can  the  franchise  of  a  turnpike- 
road  company  to  maintain  a  toll-road,  or 
its  title  and  right  to  possess  such  road,  be 
inquired  into  by  a  mere  intruder  or  tres- 
passer. Stockton  etc.  Gravel  Eoad  Co.  v. 
Stockton  etc.  R.  R.  Co.,  45  Cal.  680. 

Prerequisites  to  exercise  of  corporate 
powers.  The  general  rule  is,  that  the  exist- 
ence of  a  corporation  may  be  proved  by 
producing  its  charter,  and  showing  acts  of 
user  under  it;  but  this  rule  has  no  applica- 
tion to  a  corporation  formed  under  the 
provisions  of  a  general  statute  requiring 
certain  acts  to  be  performed  before  the 
corporation  can  be  considered  in  esse  or  its 
transactions  possess  any  validity:  the  exist- 
ence of  a  corporation  thus  formed  must  be 
proved  by  showing  at  least  a  substantial 
compliance  with  the  requirements  of  the 
statute;  but  there  is  a  broad  and  obvious 
distinction  between  such  acts  as  are  de- 
clared to  be  necessary  in  the  process  of  in- 
corporation, and  those  required  of  the 
individuals  seeking  to  become  incorporated, 
but  which  are  not  made  prerequisites  to 
the  assumption  of  corporate  powers;  in  re- 
spect to  the  former,  any  material  omission 
is  fatal  to  the  existence  of  the  corporation, 
and  may  be  taken  advantage  of  collater- 
ally, in  any  form  in  which  the  fact  of 
incorporation  can  properly  be  called  in 
question;  and  in  respect  to  the  latter,  the 
corporation  is  responsible  only  to  the  gov- 
ernment, and  in  a  direct  proceeding  to  for- 
feit its  charter;  the  right  to  be  considered 
a  corporation,  and  to  exercise  corporate 
powers,  depends  upon  the  fact  of  the  per- 
formance of  the  particular  acts  named  in 
the  statute  as  essential  to  its  corporate 
existence.  Mokelumne  Hill  etc.  Mining  Co. 
V.  Woodbury,  14  Cal.  424;  73  Am.  Dec.  6.58; 
Harris  v.  McGregor,  29  Cal.  124.  The  right 
to  be  a  corporation  is,  in  itself,  a  fran- 
chise; and  although,  to  acquire  a  franchise 
under  a  general  law,  the  prescribed  statu- 
tory conditions  must  be  complied  with,  yet 
a  substantial  rather  than  a  literal  compli- 
ance will  suffice;  but  it  does  not  follow 
from  this,  that  any  positive  statutory  re- 
quirement can  be  omitted  on  the  ground 
that  it  is  unimportant;  none  of  the  condi- 
tions precedent  to  acquiring  a  statutory 
right  can  be  dispensed  with  by  the  court. 
People  v.  Self  ridge,  52  Cal.  331;  People  v. 
Montecito  Water  Co.,  97  Cal.  276;  33  Am. 
St.  Rep.  172;  .32  Pac.  236. 

Jurisdiction.  Quo  warranto  proceedings 
are  within  the  appellate  jurisdiction  of  the 


supreme  court.  People  v.  Perry,  79  Cal. 
105;  21  Pac.  423.  The  supreme  court  is 
strictly  an  appellate  tribunal,  and  has  no 
original  jurisdiction,  except  in  eases  of 
habeas  corpus;  hence,  it  is  not  empowered 
to  issue  a  writ  of  quo  warranto  to  deter- 
mine the  right  to  an  office,  or  the  existence 
of  the  office.  Ex  parte  Attorney-General, 
1  Cal.  85;  and  see  Caulfield  v.  Hudson,  3 
Cal.  389;  Miliken  v.  Huber,  21  Cal.  166; 
People  V.  Harvey,  62  Cal.  508.  The  former 
district  court  had  jurisdiction  of  an  ac- 
tion to  determine  the  result  of  an  elec- 
tion to  office.  People  v.  Holden,  28  Cal.  123. 
The  superior  court  has  power,  under  §  5 
of  article  VI  of  the  constitution,  to  issue 
writs  of  quo  warranto,  and,  in  an  action  in 
the  nature  of  quo  warranto,  brought  under 
this  section  and  §  809,  post,  it  has  au- 
thority to  oust  a  person  from  office,  and  re- 
cover a  penalty  of  five  thousand  dollars 
for  unlawfully  holding  such  office.  People 
v.  Bingham,  82  Cal.  238;  22  Pac.  1039. 
The  jurisdiction  of  the  superior  court  to 
issue  writs  of  quo  warranto,  given  by  the 
constitution  of  1879,  is  not  exclusive  of 
their  jurisdiction  over  a  regular  action  to 
declare  the  forfeiture  of  a  franchise. 
People  V.  Sutter  Street  Ry.  Co.,  117  Cal. 
604;  49  Pac.  736.  The  jurisdiction  of  the 
superior  court  to  try  the  question  of 
usurpation  of  an  office,  and  incidentally 
the  existence  of  the  office,  is  not  derived 
from  any  act  relating  to  a  particular  office, 
but  from  its  constitutional  grant  of  gen- 
eral jurisdiction  in  civil  cases,  the  exer- 
cise of  which,  so  far  as  respects  actions  of 
this  character,  is  regulated  by  this  chapter. 
Ex  parte  Henshaw,  73  Cal.  486;  15  Pac.  110. 
An  action  brought  by  the  attorney-general 
to  oust  a  person  from  the  office  of  super- 
visor of  the  city  and  county  of  San  Fran- 
cisco, and  to  recover  the  statutory  penalty 
for  usurpation  of  office,  is  in  the  nature  of 
quo  warranto,  and  within  the  constitutional 
grant  of  jurisdiction  to  the  superior  court, 
and  this  jurisdiction,  being  conferred  by 
the  constitution,  cannot  be  abridged  or 
taken  away  by  the  legislature;  hence,  the 
provision  of  the  consolidation  act,  that  the 
board  of  supervisors  shall  be  the  judge  of 
election  returns  and  qualifications  of  its 
own  members,  was  superseded  by  the  pres- 
ent constitution,  at  least  so  far  as  it  could 
be  held  to  confer  exclusive  jurisdiction 
upon  the  supervisors.  People  v.  Bingham, 
82  Cal.  238;  22  Pac.  1039;  and  see  People 
V.  Perry,  79  Cal.  105;  21  Pac.  423.  That 
a  corporation  has  entered  into  an  illegal 
trust  for  the  purpose  of  creating  a  mo- 
nopoly will  not  confer  upon  the  court,  in 
quo  warranto  proceedings,  the  right  to  ap- 
point a  receiver  of  the  assets  of  the  cor- 
poration. Havemeyer  v.  Superior  Court,  84 
Cal.  327;  18  Am.  St.  Rep.  192;  10  L.  R.  A. 
627;  24  Pac.  121.  The  superior  court  has 
no  jurisdiction  to  appoint  a  receiver  of  the 
property  of  a  corporation  in  a  quo  war- 
ranto  proceeding,   upon   judgment    of   for- 


953 


JOINDER — OF    PARTIES   DEFENDANT — OF   CAUSES    OF    ACTION. 


§803 


feiture  of  its  corporate  charter,  unless  a 
new  suit  is  coiniiieiu'ed  by  a  cretlitur  or 
stockholder  of  the  corporation  for  that  pur- 
pose. Haveniever  v.  Superior  Court,  84  Cal. 
327;  18  Am.  St.  Rep.  192;  10  L.  R.  A.  627; 
24  Pac.  121;  and  see  Neall  v.  Hill,  16  Cal. 
146;  76  Am.  Dec.  508;  People  v.  Union 
Buildins;  etc.  Ass'n,  127  Cal.  400;  59  Pac. 
692;  Murray  v.  Superior  Court,  129  Cal. 
628;  62  Pat\  191.  The  jurisdiction  of  the 
superior  court  to  decree  a  dissolution  of  a 
corporation  exists  only  by  virtue  of  statu- 
tory authority;  the  court  does  not  possess 
this  authority  by  virtue  of  its  inherent 
general  jurisdiction  in  equity,  either  at 
the  suit  of  an  individual  or  at  the  suit  of 
the  state,  and,  as  its  jurisdiction  is  derived 
from  the  statute,  it  is  limited  by  the  pro- 
visions of  the  statute,  both  as  to  the  con- 
ditions under  which  it  may  be  invoked 
and  the  extent  of  the  judgment  which  it 
may  make  in  the  exercise  of  this  jurisdic- 
tion. State  Investment  etc.  Co.  v.  Superior 
Court,  101  Cal.  135;  35  Pac.  549.  The 
provisions  of  the  constitution  relative  to 
the  jurisdiction  of  courts  do  not  disable  the 
legislature,  in  creating  municipal  corpora- 
tions, from  providing  that  the  city  council 
shall  be  the  final  and  exclusive  judge  of 
the  election  of  all  municipal  oilicers;  and 
prohibition  will  lie  to  the  superior  court  to 
prevent  the  hearing  of  a  contest  for  a 
municipal  office,  of  which  the  city  council 
is  given  exclusive  jurisdiction  under  its 
charter.  Carter  v.  Superior  Court,  138  Cal. 
150;  70  Pac.  1067.  Where  the  charter  of 
a  city  provides  that  the  common  council 
shall  judge  of  the  qualifications,  elections, 
and  returns  of  its  own  members,  such  coun- 
cil possesses  exclusive  authority  to  pass 
on  the  subject,  and  courts  have  no  juris- 
diction to  inquire  into  the  qualifications, 
elections,  or  returns  of  the  members  of  the 
council.    People  v.  Metzger,  47  Cal.  524. 

Parties  defendant.  Quo  warranto  does 
not  lie  against  a  mere  temporary  employ- 
ment, like  that  of  the  jury;  it  lies  only 
against  the  holder  of  a  public  office  having 
a  fixed  and  permanent  tenure.  Bruner  v. 
Superior  Court,  92  Cal.  239;  28  Pac.  341. 
The  stockholders  of  a  corporation  are,  in 
a  certain  sense,  parties  to  an  action  to  for- 
feit its  franchise,  but  they  are  not  parties 
in  any  other  sense  than  that  they  are 
bound  by  the  consequences  of  such  judg- 
ment as  the  court,  in  that  action,  has  power 
to  give;  and  if  the  court  goes  outside  of 
the  issues  in  the  action,  and  renders  a 
judgment  or  makes  an  order  embracing 
matters  entirely  foreign  to  such  issues,  the 
stockholders  are  not  bound  by  such  judg- 
ment or  order.  Havemeyer  v.  Superior 
Court,  84  Cal.  327;  18  Am.  St.  Rep.  192; 
10  L.  R.  A.  627;  24  Pac.  121.  In  an  ac- 
tion to  have  it  determined  that  certain 
persons  are  unlawfully  claiming  to  be,  and 
are  exercising  the  functions  of,  a  private 
corporation,  which  never  had  an  existence, 
the  persons  usurping  the  franchise  are  the 


only  proper  defendants;  if  the  corporation 
is  made  a  defendant  as  sucii,  its  corporate 
existence  is  admitted.  People  v.  Stanford, 
77  Cal.  360;  2  L.  R.  A.  92;  IS  Pac.  85;  19 
Pac.  693.  Where  it  is  claimed  that  a  cor- 
jioration  is  usurjiing  privileges  and  powers 
not  belonging  to  it,  the  corporation  is  the 
proper,  and  the  only  proper,  partv.  People 
V.  Stanford,  77  Cal"  360;  2  L.  R.  A.  92;  18 
Pac.  85;  People  v.  Reclamation  District, 
117  Cal.  114;  48  Pac.  1016.  Where  the  ac- 
tion is  for  the  forfeiture  of  the  franchise 
of  the  corporation  for  abuse  and  misuse  of 
its  powers,  the  corporation  is  a  proper 
partv  defendant.  People  v.  Dashawav  As- 
sociation, 84  Cal.  114;  12  L.  R.  A.  ll"7;  24 
Pac.  277.  In  an  action  brouglit  to  deter- 
mine and  restrain  the  usurpation  of  a  cor- 
porate franchise,  the  alleged  usurping 
corporation  is  a  necessary  party  defendant. 
People  v.  Flint,  64  Cal.  49;  28  Pac.  495; 
Peojde  V.  Stanford,  77  Cal.  360;  2  L.  R.  A. 
92;  18  Pac.  85;  19  Pac.  693.  In  a  proceed- 
ing by  the  state,  in  the  nature  of  a  quo 
warranto,  to  deprive  a  corporation  de  facto 
of  its  corporate  charter  and  procure  its 
dissolution  on  the  ground  of  a  want  of  sub- 
stantial compliance  with  the  statutory 
requirements  in  its  formation,  the  corpora- 
tion de  facto  is  a  necessary  party,  and 
making  it  such,  with  the  averment  that  it 
is  a  corporation  de  facto,  but  not  de  jure, 
does  not  estop  the  state  from  questioning 
its  corporate  character.  People  v.  Monte- 
cito  Water  Co.,  97  Cal.  276;  33  Am.  St.  Rep. 
172;  32  Pac.  236.  Whenever  a  proceeding 
is  such  as  that  it  must  test  and  determine 
the  validity  of  a  municipal  charter  as  such, 
the  municipality,  real  or  pretended,  must 
be  made  a  party.  People  v.  Gunn,  85  Cal. 
238;  24  Pac.  718. 

Joinder  of  parties  defendant.  In  an  ac- 
tion of  quo  warranto  to  determine  the 
validity  of  an  election  for  school  trustees, 
all  the"  defendants  claiming  to  be  elected, 
are  properly  joined  as  defendants,  under 
§  808,  post;  and  there  is  no  improper 
joinder  of  several  causer,  of  action  against 
them.  People  v.  Prewett,  124  Cal.  7;  56 
Pac.  619.  The  statutory  action  for  the 
usurpation  of  a  municipal  franchise  may  be 
maintained  against  the  defendant  in  its 
assumed  corporate  name  without  joining 
the  trustees;  their  liability  is  for  a  usurj»a- 
tion  of  office,  and  not  of  a  franchise. 
People  V.  Riverside,  66  Cal.  288;  5  Pac. 
350. 

Joinder  of  causes  of  action.  An  infor- 
mation in  the  nature  of  quo  warranto, 
against  the  three  trustees  of  a  school  dis- 
trict, to  determine  their  right  to  office,  all 
three  claiming  to  be  elected,  is  not  open 
to  the  objection  that  three  causes  of  action 
are  improperly  united.  People  v.  Prewett, 
124  Cal.  7;  56'Pac.  619.  To  allege  that  the 
defendant  unlawfully  exercises  and  wrong- 
fully claims  the  right  to  exercise  a  fran- 
chise, and  that  it  claims  the  right  to  lay 
tracks  and  make  switches,  is  not   to  unite 


803 


ACTIONS  FOE  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


954 


two    causes    of    action.     People    v.    Sutter 
Street  Ky.  Co.,  117  Cal.  604;  49  Pac.  736. 

Complaint,  allegations  of.  It  was  a 
peculiarity  of  both  the  quo  warranto,  and 
an  information  in  the  nature  of  a  quo  war- 
ranto, that  the  ordinary  rule  of  pleading 
Avas  reversed,  and  the  state  was  bound  to 
show  nothing,  and  the  defendant  was  re- 
quired to  show  his  right  to  the  franchise 
or  office  in  question;  and  if  he  failed  to 
show  authority,  judgment  went  against 
Mm;  the  practice  has,  however,  now  be- 
come quite  general  for  the  information  to 
set  forth  the  facts  relied  upon  to  show 
the  intrusion,  misuser,  or  uonuser  com- 
plained of.  People  V.  Dashawav  Associa- 
tion, 84  Cal.  114;  12  L.  E.  A.  117;  24  Pac. 
277.  An  averment  that  the  defendants 
held,  used,  exercised,  and  enjoyed  the  office 
in  question,  without  a  license  for  that  pur- 
pose, is  sufficient:  these  are  the  facts  con- 
stituting the  cause  of  action,  and  the  only 
facts  necessarv  to  be  stated.  People  v. 
Abbott,  16  Cal.  359.  Although  the  com- 
plaint need  not  state  the  facts  constituting 
the  usurpation  or  illegal  exercise  of  the 
office  by  the  defendant,  and  is  sufficient 
where  it  merely  alleges  that  he  is  unlaw- 
fully exercising  the  office,  leaving  his  right 
to  such  exercise  to  be  pleaded  in  his  de- 
fense, yet  such  allegation,  being  material, 
and  relevant  to  the  issue,  must  be  denied, 
or  the  fact  thus  alleged  must  be  held  to  be 
admitted  by  the  defendant.  People  v.  Su- 
perior Court,  114  Cal.  466;  46  Pac.  383. 
A  complaint  in  quo  warranto,  showing  that 
the  plaintiff  is  in  the  exercise  of  the  office, 
but  not  alleging  nor  suggesting  that  the 
defendant  ha?  usurped  or  intruded  into  the 
office,  does  not  state  a  cause  of  action. 
Powers  V.  Hitchcock,  129  Cal.  325;  61  Pac. 
1076.  A  complaint  in  quo  warranto,  to 
determine  the  validity  of  an  election, 
which  merely  alleges  that  copies  of  an  old 
great  register  were  used  at  the  polls,  in- 
stead of  copies  of  a  new  one  required  by 
law,  but  which  does  not  aver  that  the 
names  of  all  the  voters  were  not  on  the 
new  register,  does  not  state  a  cause  of  ac- 
tion. People  v.  Worswick,  142  Cal.  71;  75 
Pac.  663.  It  is  sufficient,  in  an  action 
against  individuals,  charging  that  they  are 
wrongfully  claiming  to  act  as  a  corpora- 
tion, to  allege,  in  general  terms,  that  there 
never  was  such  a  corporation:  such  alle- 
gation covers  the  whole  ground.  People 
V.  Stanford,  77  Cal.  360;  2  L.  R.  A.  92;  18 
Pac.  85;  19  Pac.  693.  A  complaint  alle- 
ging that  by  reason  of  the  acts  and  omis- 
sions of  the  defendant  company,  if  the 
said  company  ever  had,  as  a  corporation, 
"any  legal  existence,  right,  privilege,  or 
franchise,  .  .  .  the  same  became  forfeited," 
but  not  alleging  that  the  company  once 
had  a  legal  existence  as  a  corporation, 
fails  to  state  a  cause  of  action:  there 
can  be  no  resumption  or  forfeiture,  by  the 
Btate,  of  a  franchise  never  granted.  People 
V.  Stanford,  77  Cal.  360;  2  L.  R.  A.  92;  18 


Pac.  85;  19  Pac.  693.  The  complaint  in 
an  action  to  forfeit  the  franchise  of  a 
street-railway  company  to  maintain  tracks 
upon  a  certain  street  is  not  open  to  the 
ol3Jectiou  that  it  does  not  state  a  cause  of 
action,  because  it  avers  that  the  defendant 
has  not,  at  any  time,  operated  a  railway 
upon-  the  tracks  constructed  by  it,  where 
the  complaint  does  state  that  the  fran- 
chise was  granted  upon  certain  conditions 
as  to  the  operation,  which  had  not  been 
complied  with,  and  that  the  defendant 
merely  pretended  to  operate  the  same  by 
running  over  the  track  one  car  every  day, 
not  with  an  intention  to  accommodate  the 
public,  but  merely  for  the  purpose  of  main- 
taining the  franchise.  People  v.  Sutter 
St.  By.  Co.,  117  Cal.  604;  49  Pac.  736.  In 
an  action  of  quo  warranto,  the  state  may 
either  charge  the  corporation  defendant 
with  the  usurpation  of  a  franchise  in  gen- 
eral terms,  and  thus  throw  the  burden  upon 
the  defendant,  or  it  may  allege  the  specific 
grounds  or  defects  relied  upon  to  show  a 
usurpation,  in  which  case  the  facts  pleaded, 
if  admitted,  must  be  sufficient  to  sustain 
the  charge  of  usurpation,  and  if  denied, 
the  burden  of  proof  is  upon  the  plaintiff. 
People  V.  Los  Angeles,  133  Cal.  338;  65 
Pac.  749.  Where  the  claim  is,  that  the 
corporation  is  acting  as  such,  but  the  pro- 
ceedings under  which  it  is  acting  are  de- 
fective, the  facts  showing  that  it  is  so 
claiming  to  act,  and  the  defects  claimed 
to  exist,  should  be  set  out  specifically. 
People  V.  Stanford,  77  Cal.  360;  2  L.  E.  A. 
92;  18  Pac.  85;  19  Pac.  693.  A  complaint 
showing  that  the  defendant  is  exercising 
the  franchise  of  a  municipal  corporation, 
without  being  incorporated  according  to 
law,  states  facts  sufficient  to  constitute  a 
cause  of  action.  People  v.  Riverside,  66 
Cal.  288;  5  Pac.  350;  People  v.  Flint,  64 
Cal.  49;  28  Pac.  495.  Where  no  relief  is 
asked  in  favor  of  the  relator,  allegations 
of  the  complaint,  setting  forth  his  right 
to  the  office,  are  superfluous  and  imma- 
terial; and  if  the  allegations  are  insuffi- 
cient to  authorize  a  determination  of  the 
rights  of  the  relator,  the  proper  course  is 
to  disregard  them.  People  v.  Abbott,  16 
Cal.  359.  Where  the  complaint  alleges  that 
the  defendant  has  usurped  the  office,  erro- 
neous allegations  as  to  the  statutory 
origin  of  the  office  may  be  disregarded  as 
surplusage:  it  will  then  be  sufficient  to  give 
the  court  jurisdiction  to  decide  the  ques- 
tion of  usurjoation.  Ex  parte  Henshaw,  73 
Cal.  486;  15  Pac.  110.  A  complaint  in  quo 
warranto  against  a  toll-road  company,  al- 
leging "that  for  more  than  six  months  last 
past  the  defendant  has  had  no  franchise 
or  right  to  demand  or  take  toll,  etc.,"  does 
not  admit  that  the  defendant  ever  had 
a  toll-road  franchise.  People  v.  Volcano 
Canon  Toll-road  Co.,  100  Cal.  87;  34  Pac. 
522. 

Demurrer,  general  and  special.     A  gen' 
eral  demurrer  to  a  complaint  in  quo  war- 


955 


ANSWER — INTERVENTION — EVIDENCE — PRESUMPTIONS. 


§803 


ranto  does  not  raise  any  question  as  to  tlie 
sufTicioiicy  of  the  all('j,rati()ns  lolatiiij^  to 
tlie  ri<rht  of  tlic  relator  to  the  odit-e  (Feo|iIe 
V.  Abbott,  16  Cal.  .'!/)9);  nor  raise  the  ques- 
tion as  to  whether  tlie  relator's  bond  was 
properly  approved.  People  v.  Shorb,  100 
Cal.  537;  ?,S  Am.  St.  Rep.  ;510;  35  Pae.  1G3. 
An  allegation  in  a  conii)laint  in  quo  war- 
ranto, that  the  defendant  is  in  possession 
of  the  oHit'e  without  lawful  authority,  is  a 
sufficient  allej^ation  of  intrusion  and  usur- 
pation; if  the  complaint  is  defective  in  this 
particular,  the  defect  must  be  reached  by 
special  demurrer.  People  v.  Woodbury,  l-i 
Cal.  43. 

Answer.  The  defendant  in  an  action  in 
the  nature  of  quo  warranto  is  at  liberty 
to  set  forth,  in  his  answer,  as  many  de- 
fenses as  he  may  have  (People  v.  Stratton, 
28  Cal.  382);  and  in  an  action  for  the  usur- 
pation of  a  corporate  franchise,  the  answer 
must  show  that  the  corporation  was  or- 
ganized in  the  manner  required  by  tlie  gen- 
eral laws.  People  v.  Stanford,  77  Cal.  3G0; 
2  L.  R.  A.  92;  18  Pac.  85;  People  v.  Su- 
perior Court,  114  Cal.  46G;  46  Pac.  383.  An 
answer  denying  that  the  individual  defend- 
ants are  unlawfully  claiming  to  be  and 
are  exercising  the  functions  of  a  private 
corporation,  together  with  a  similar  gen- 
eral denial  of  other  material  allegations 
of  the  complaint,  is  sufficient,  where  tliey 
rest  their  defense  on  the  denial  that  they 
are  making  such  claim  and  exercising  the 
rights  and  privileges  alleged.  People  v. 
Stanford,  77  Cal.  360;  2  L.  R.  A.  92;  18 
Pac.  85.  Where  a  verified  complaint  sets 
lip  facts  showing  the  illegality  of  the  char- 
ter of  the  corporation,  a  general  answer, 
or  one  which  merely  denies  the  conclusions 
of  law  stated  in  the  complaint,  or  sets  up 
affirmatively  conclusions  of  law,  is  insuffi- 
cient. People  V.  Lowden,  2  Cal.  Unrep. 
537;  8  Pac.  66.  Where  the  existence  of  a 
corporation  is  expressly  averred  or  is  ad- 
mitted, it  is  not  sufficient  to  allege  that 
it  has  ceased  to  exist:  the  facts  showing 
that  its  existence  has  terminated  must  be 
set  forth.  People  v.  Stanford,  77  Cal.  360; 
2  L.  R.  A.  92;  18  Pac.  85;  19  Pac.  693; 
and  see  People  v.  Volcano  Canon  Toll-road 
Co.,  100  Cal.  87;  34  Pac.  522.  The  proper 
course  for  the  defendant  is,  either  to  dis- 
claim or  to  justify:  if  he  seeks  to  justify, 
he  must  set  out  his  title  specially  and  dis- 
tinctly. People  V.  Stanford,  77  Cal.  360; 
2  L.  R.  A.  92;  18  Pac.  85;  People  v. 
Superior  Court,  114  Cal.  466;  46  Pac.  383. 

Intervention  and  defense.  The  holders 
of  the  bonds  of  an  irrigation  district, 
which  is  charged  with  the  usurpation  and 
unlawful  exercise  of  the  powers  and  fran- 
chise of  a  legally  organized  irrigation  dis- 
trict, may  intervene  and  join  in  defending 
the  action,  and  may  avail  themselves  of 
all  the  procedure  and  remedies  to  which 
the  defendant  district  would  be  entitled, 
for  the  purpose  of  defeating  the  action 
or    resisting    the    claim    of    the    plaintiff. 


People  v.  Perris  Irrigation  Dist.,  132  Cal. 
2Si);  64  Pac.  399. 

Prima  facie  evidence.  Testimony  tend- 
ing to  show  that  a  r-ompany  is  a  coriiora- 
(ion  de  facto  disjicnses  with  strict  proof 
of  the  corporate  character,  and  ])reclude3 
tiie  party  ofl'ering  it  from  afterwards  in- 
quiring into  or  disputing  the  company's 
right  to  act  as  a  corporation;  such  inquiry 
can  only  be  had  at  the  suit  of  the  state, 
on  information  by  the  attornev-general. 
Rondell  V.  Pay,  32  Cal.  354.  A  certificate 
of  election  is  npt  necessary  to  enable  a 
party,  claiming  to  have  been  elected,  to 
bring  his  action  by  quo  warranto:  such 
certificate  is  merely  prima  facie  evidence 
of  title  to  the  office,  and  not  conclusive; 
nor  is  it  the  only  evidence  by  which  the 
title  may  be  established;  it  is  the  fact  of 
election  which  gives  title,  and  this  fact 
may  not  only  be  established  without  the 
evidence  of  the  certificate,  but  also  against 
it.  Magee  v.  Board  of  Sujjervisors,  10  Cal. 
376. 

Presumptions.  Where  it  is  shown  that 
the  claimant  of  the  office  in  controversy 
is  performing  the  duties  of  such  office,  that 
fact,  taken  in  connection  with  proof  of  the 
loss  of  the  certificate  of  election,  raises 
the  presumption  that  he  had  executed  his 
bond  and  taken  the  oath  of  office.  Peojde 
v.  Clingan,  5  Cal.  3S9;  Hull  v.  Superior 
Court,  63  Cal.  174.  The  presumption  of 
law  is,  that  ballots  are  all  returned  to  the 
county  clerk,  and  that  they  have  not  been 
mutilated;  if  such  is  not  the  case,  it 
should  be  shown  by  evidence.  People  v. 
Holden,  28  Cal.  123.  The  positive  testi- 
mony of  the  county  clerk,  that  the  docu- 
ments or  records  relating  to  the  election 
are  not  in  his  office,  raises  the  legal  pre- 
sumption that  he  had  searched  for  them, 
unless  it  appears  from  his  testimony  that 
such  was  not  the  fact.  People  v.  Clingan, 
5  Cal.  389.  As  against  the  state,  there 
is  no  presumption  that  citizens  exercising 
a  franchise  are  exercising  it  rightfully. 
People  V.  Stanford,  77  Cal.  360;  2  L.  R.  A. 
92;  IS  Pac.  85;  19  Pac.  693. 

Best  evidence.  In  an  action  brought  to 
try  the  right  to  an  office,  the  list  of  ballots 
cast  in  any  precinct,  and  returned  with  the 
poll-list  and  tally-paper  to  the  county  clerk, 
is  better  evidence  of  the  number  of  A'otes 
cast  at  the  precinct,  and  for  whom  cast, 
than  tlie  tally-list  made  from  them  by  the 
officers  of  the  election.  People  v.  Holden, 
28  Cal.  123. 

Parol  evidence.  The  loss  or  destruction 
of  a  certificate  of  election  may  be  shown 
and  the  fact  of  election  established  by 
jiarol  evidence.  Peo^ile  v.  Clingan,  5  Cal. 
389. 

Admissions.  A  principal  is  not  con- 
cluded by  the  admissions  of  his  deputies, 
made  in  an  action  jirosecuted  against  them, 
under  this  chapter,  to  which  he  was  not  a 
part  v.  People  v.  Shorb,  100  Cal.  537;  38 
Ain.St.  Rep.  310;  35  Pac.  163. 


803 


ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


955 


Admissibility  of  evidence.  Where  the 
defendant  is  exercising  the  functions  of 
the  office  as  the  same  are  defined  in  the  act 
creating  the  office,  and  is  called  on  by  the 
state  to  show  by  what  authority  he  is  act- 
ing, he  cannot  defend  his  conduct  by  prov- 
ing that  no  one  else  has  the  power  to 
exercise  such  functions.  Ex  parte  Hen- 
shaw,  73  Cal.  486;  15  Pae.  110. 

Burden  of  proof.  In  an  action  by  one 
claiming  to  have  been  elected  to  an  office, 
against  his  predecessor,  to  recover  pos- 
session of  the  books  and  papers  of  the 
office,  the  plaintiff  must  show  prima  facie 
that  a  vacancy  existed  in  the  office,  and 
that  he  was  elected  to  fill  it.  Doane  v. 
Scannell,  7  Cal.  393;  People  v.  Scannell,  7 
Cal.  432.  In  an  action  for  the  usurpation 
of  a  franchise,  where  the  defendants  ad- 
mit, or  do  not  deny,  that  they  are  exer- 
cising the  rights  and  privileges  alleged, 
and  they  attempt  to  establish  their  right 
to  do  so,  they  must  show  affirmatively  by 
what  right  they  are  exercising  the  fran- 
chise. People  V.  Stanford,  77  Cal.  360;  2 
L.  E.  A.  92;  18  Pae.  85;  People  v.  Volcano 
Canon  Toll-road  Co.,  100  Cal.  87;  34  Pae. 
522;  People  v.  Superior  Court,  114  Cal. 
466;  46  Pae.  383.  The  burden  of  proof  is 
on  the  defendants  to  show  that  the  cor- 
poration was  legally  formed,  and  that  its 
existence  has  been  legally  extended,  where 
it  is  alleged  that  the  charter  has  expired. 
People  V.  Lowden,  2  Cal.  Unrep.  537;  8 
Pae.  66. 

Findings.  Allegations  of  the  complaint, 
that,  at  a  general  election,  the  relator  was, 
by  the  greatest  number  of  votes  cast, 
elected  to  the  office,  and  the  answer  deny- 
ing that  the  relator  was  elected,  and  the 
finding  of  the  court  that  such  election  was 
held,  and  that  the  relator  received  the 
greatest  number  of  votes  cast,  are  suffi- 
cient to  sustain  judgment  for  the  relator. 
People  V.  Jones,  20  Cal.  50. 

Injunction  against  removal  of  street- 
railroad  tracks.  Although  the  right  of  a 
street-railroad  company  to  lay  tracks  along 
certain  streets  can  be  inquired  into  only 
in  a  proceeding  by  the  state,  yet  if  the 
grant  of  a  right  to  lay  such  tracks  is  void, 
and  another  company  possesses  a  valid 
right  to  do  so,  the  latter  company  may 
remove  the  tracks  laid  by  the  former  com- 
piany,  as  an  obstruction  or  impediment  to 
the  prosecution  of  their  work,  and  the 
former  company  cannot  enjoin  them  from 
making  such  removal.  Omnibus  E.  E.  Co. 
V.Baldwin,  57  Cal.  160. 

Pendency  of  quo  warranto  against  cor- 
poration as  defense  to  mandamus.  Pen- 
dency of  proceeding  in  quo  warranto, 
against  persons  claiming  to  compose  a  cor- 
poration, is  no  defense  to  a  proceeding 
by  mandamus,  by  such  corporation,  to  com- 
pel a  county  to  subscribe  to  its  capital 
stock  and  to  issue  its  bonds  therefor.   Oro- 


ville  etc.  E.  E.  Co.  v.  SuY)ervisors,  37  Cal. 
354. 

Collateral  attack  on  franchise.  The- 
provision  of  the  statute,  that  the  due  in- 
corporation of  a  company  claiming  in  good' 
faith  to  be  a  corporation  under  the  laws 
of  this  state,  and  doing  business  as  such, 
shall  not  be  inquired  into  collaterally,  does- 
not  preclude  a  private  person  from  deny- 
ing the  existence,  de  jure  or  de  facto,  of 
an  alleged  corporation:  to  say  that  the 
due  incorporation  cannot  be  inquired  into 
collaterally  does  not  mean  that  no  inquiry 
can  be  made  as  to  whether  it  is  a  cor- 
poration; many  of  the  acts  required  to  be 
performed,  in  order  to  make  a  complete 
organization  of  the  corporation,  may  have 
been  irregularly  performed,  or  some  of 
them  may  have  been  entirely  omitted,  and. 
the  rule  of  the  statute  is,  that  such  irregu- 
lar or  defective  performance  shall  not 
defeat  the  incorporation  when  drawn  into 
question  collaterally;  and  a  substantial 
compliance  with  the  requirements  of  the- 
statute  is  sufficient  to  show  a  corporation, 
de  jure,  in  an  action  between  the  corpora- 
tion and  a  private  person.  Oroville  etc.. 
E.  E.  Co.  V.  Supervisors,  37  Cal.  3.54;: 
Spring  Valley  Water  Works  v.  San  Fran- 
cisco, 22  Cal.  434;  Dannebroge  etc.  Mining 
Co.  V.  Ailment,  26  Cal.  286;  People  v.. 
Frank,  28  Cal.  507;  Dean  v.  Davis,  51  Cal. 
406;  Bakersfield  Town  Hall  Ass'n  v.  Ches- 
ter, 55  Cal.  98;  Fresno  Canal  etc.  Co.  v. 
Warner,  72  Cal.  379;  14  Pae.  37;  Lakeside 
Ditch  Co.  v.  Crane,  80  Cal.  181;  22  Pae. 
76;  Golden  Gate  etc.  Mining  Co.  v.  .loshua 
Hendy  Machine  Works,  82  Cal.  184;  23: 
Pae.  45;  First  Baptist  Church  v.  Branham, 
90  Cal.  22;  27  Pae.  60.  The  rule  that  the 
right  to  a  franchise  is  not  subject  to- 
attack  in  a  collateral  proceeding  does  not,, 
in  an  action  brought  by  a  turnpike-road 
company  to  enforce  the  payment  of  tolls, 
prevent  the  defendant  from  denying  the 
right  of  the  plaintiff  to  a  franchise  to  col- 
lect such  tolls,  where  it  affirmatively  ap- 
pears, on  the  plaintiff's  own  showing,  that 
no  toll-gate  had  been  legally  established 
or  located  upon  the  road,  and  where,  under 
the  law,  the  board  of  supervisors  was  with- 
out jurisdiction  to  grant  the  franchise  to 
collect  such  tolls  until  after  it  had  estab- 
lished such  toll-gates.  Waterloo  Turnpike 
Eoad  Co.  V.  Cole,  51  Cal.  381.  In  an  action 
by  a  corporation,  the  defendant  cannot  put 
the  due  incorporation  of  the  plaintiff,  or 
its  right  to  exercise  corporate  powers,  in 
issue,  if  the  plaintiff  claims  in  good  faith 
to  be  a  corporation  under  the  laws  of  the 
state,  and  to  be  doing  business  as  such.. 
Pacific  Bank  v.  De  Eo,  37  Cal.  538.  A 
proceeding,  in  pursuance  of  the  act  of 
March  16,  1889,  to  procure  the  confirmation 
of  proceedings  for  the  issue  and  sale  of 
the  bonds  of  an  irrigation  district,  is  not 
one  in  which   the  question   of  the  due  in- 


957 


PROHIBITION — WAIVER  OF  FILVNCIIISE — ESTOPPEL. 


§803 


corporation  of  the  corporation  arises  col- 
laterally: in  such  case,  the  cor[)oration 
itself  comes  into  court  and  challonj^es  an 
«.\amination  of  the  regularity  of  its  or- 
ganization, and  asks  the  court  to  exaniino 
each  and  all  of  the  proceeiiings  for  the 
organization  of  the  district;  and  in  such 
proceeding  it  is  necessary  for  the  corpora- 
tion to  establish  such  regularity,  and  to 
give  evidence  of  each  step  therein,  as 
fully  as  if  its  acts  were  under  investiga- 
tion upon  a  writ  of  review,  or  as  if  the 
state  were,  by  quo  warranto,  questioning 
its  right  to  exercise  the  franchise  of  a 
corporation.  In  re  Madera  Irrigation  Dist., 
92  Cal.  296;  27  Am.  St.  Rep.  106;  14 
L.  R.  A.  755;  28  Pac.  272;  People  v.  Perris 
Irrigation  Dist.,  132  Cal.  289;  04  Pac.  399. 

Prohibition.  Prohibition  lies  to  restrain 
the  superior  court  from  proceeding,  in  quo 
warranto,  with  the  receivership  of  prop- 
erty of  a  dissolved  corporation.  Have- 
meyer  v.  Superior  Court,  84  Cal.  327;  18 
Am.  St.  Rep.  192;  10  L.  R.  A.  627;  24  Pac. 
121;  Yore  v.  Superior  Court,  108  Cal.  431; 
41  Pac.  477. 

Abatement  of  action  for  usurpation  of 
public  office.  Where  a  proceeding  is  in- 
stituted during  the  term  in  which  the 
usurpation  is  alleged  to  e.xist,  the  action 
does  not  abate,  merely  by  reason  of  a 
failure  to  bring  it  to  a  judgment  before 
the  expiration  of  such  term;  neither  will  it 
abate  by  reason  of  the  fact  that  the  office 
involved  had  ceased  to  exist  by  reason  of 
an  amendment  to  the  charter  of  the  city, 
under  which  the  office  existed.  People  v. 
Rodgers,  118  Cal.  393;  46  Pac.  740;  50 
Pac.  668. 

Waiver  of  forfeiture  of  franchise.  Al- 
though, under  §  7  of  article  IX  of  the 
constitution,  the  legislature  cannot  remit 
the  forfeiture  of  any  franchise,  yet  it  may 
waive  the  forfeiture,  even  after  proceed- 
ings in  the  nature  of  quo  warranto  have 
been  commenced  to  have  it  determined 
that  the  defendant  has  forfeited  such 
right.  People  v.  Los  Angeles  Electric  Ry. 
Co.,  91  Cal.  338;  27  Pac.  673. 

Validity  of  appointment  of  receiver  of 
corporation.  The  ajipearauce  of  creditors, 
for  their  own  safety,  in  actions  against  a 
de  facto  receiver  appointed  in  quo  war- 
ranto proceedings,  who  has  assets  of  the 
corporation  in  his  possession,  which  are 
about  to  be  disposed  of  in  the  actions,  is 
not  a  concession  of  the  validity  of  the  ap- 
pointment of  the  receiver,  nor  a  ratifica- 
tion thereof,  and  they  are  not  in  a  position 
to  attack  the  validity  of  his  appointment 
until  brought  into  a  hostile  attitude  to  him 
by  the  levy  of  execution.  Yore  v.  Superior 
Court,  108  Cal.  431;  41  Pac.  477. 

Effect  of  judgment  against  corporation. 
In  order  to  dissolve  a  corjtoratiou,  there 
must  be  an  averment  of  the  usurpation  of 
the  franchise  of  being  a  corporation,  and  a 


judgment  excluding  the  defendant  from 
exer<dsing  the  franchise,  that  is,  from  as- 
suming to  be  a  corporation;  hence,  where 
a  complaint  merely  avers  that  the  cor- 
poration has  been  illegally  exercising  cer- 
tain enumerated  franchises,  a  judgment 
merely  deilariiig  that  the  defemiant  is 
guilty  of  usurping  rights  and  franchises, 
"as  charged  and  alleged  in  the  com[>laint," 
and  adjuclging  that  the  defendant  be  ex- 
cluded from  "such  rights,  privileges,  and 
franchises,"  does  not  have  the  effect  of 
dissolving  the  corporation.  Yore  v.  Su- 
perior Court,  108  Cal.  431 ;  41  Pac.  477. 

Estoppel  and  bar.  One  who  has  unlaw- 
fully assumed  and  is  exercising  the  public 
functions  of  an  office,  as  the  same  were 
defined  in  a  repealed  statute,  is  esto|)iied, 
in  an  action  brought  against  him  for  the 
usurpation,  to  deny  the  existence  of  the 
office;  and  where  he  continues  to  exercise 
the  functions  of  such  office,  after  being 
adjudged  a  usurper  thereof,  he  is  guilty  of 
contempt.  Ex  parte  Henshaw,  73  Cal.  486; 
15  Pac.  110.  The  state  is  not  estopped 
by  the  judgment  in  a  former  action  be- 
tween an  elector  and  the  defendant,  to 
contest  the  election  of  the  defendant,  nor 
would  such  judgment  estop  the  state,  even 
though  such  elector  were  the  relator  in 
an  action  jirosecuted  by  the  state.  People 
v.  Rodgers,  118  Cal.  393;  46  Pac.  740;  50 
Pac.  668.  The  state  is  not  estopped  from 
maintaining  an  action  to  have  it  deter- 
mined that  a  corporation  never  acquired 
the  franchise  to  build  and  operate  a  street- 
railroad  within  the  limits  of  a  municipal 
corporation,  from  the  mere  fact  that  in  a 
prior  action,  brought  against  the  corpora- 
tion as  such,  in  which  the  existence  of  the 
corporation  was  not  put  in  issue,  it  ob- 
tained a  judgment  requiring  the  corpora- 
tion to  abate  a  portion  of  its  road  on  the 
ground  that  it  was  a  public  nuisance. 
People  v.  Stanford,  77  Cal.  360;  2  L.  R.  A. 
92;  18  Pac.  85;  19  Pac.  693.  A  proceeding 
under  the  confirmatory  act  of  1889,  sup- 
plemental to  the  Wright  irrigation  act, 
taken  in  the  superior  court,  in  which  was 
confirmed  the  validity  of  the  organization 
of  an  irrigation  district,  and  of  the  bonds 
issued  thereby,  under  the  provisions  of  the 
Wright  act,  is  a  proceeding  in  rem,  the 
judgment  in  which  is  res  adjudicata,  and 
binds  the  whole  world,  including  the  state, 
and  is  a  bar  to  a  subsequent  proceeding  by 
the  state,  in  quo  warranto,  assailing  the 
validity  of  the  organization  of  the  irriga- 
tion district.  People  v.  Linda  Vista  Irriga- 
tion Dist.,  128  Cal.  477;  61  Pac.  86.  An 
action  commenced  by  the  state  to  restrain 
the  usurpation  of  a  franchise  is  not  barred 
by  any  prior  act  of  the  informant.  People 
v.  Lowden,  2  Cal.  Unrep.  537;  8  Pac.  66. 
If  the  proceeding  is  simply  one  in  which 
a  forfeiture  is  sought  by  reason  of  mis- 
user or  nonuser  of  its  powers  by  the  cor- 


§803 


ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


958 


poration,  the  statute  of  limitations  may  be 
pleaded  in  bar.  People  v.  Stanford,  77  Cal. 
360;  2  L.  E.  A.  92;  18  Pae.  So;. 19  Pae.  693. 

Dismissal.  An  information  in  the  na- 
ture of  quo  Tfarranto  may  be  dismissed  for 
want  of  prosecution,  in  the  same  manner 
as  anv  other  action.  People  v.  Jefferds.  126 
Cal.  296;  58  Pae.  704. 

New  trial.  A  new  trial  of  an  action 
brought  under  the  authority  of  this  section 
is  permissible.  People  v.  Oakland,  123  Cal. 
145;  55  Pae.  772;  People  v.  Sutter  Street 
Rv.  Co.,  117  Cal.  604;  49  Pae.  736;  People 
v.'Eodgers,  118  Cal.  393;  46  Pae.  740;  Peo- 
ple V.  Perris  Irrigation  Dist.,  132  Cal.  289; 
64  Pae.  399. 

Appeal.  Where  the  words  "township" 
and  "precinct"  are  used  synonymously  in 
the  complaint,  answer,  and  finding,  and  in 
stating  the  facts  concerning  .  an  election 
in  said  precinct,  and  no  objection  was 
taken  by  demurrer  or  otherwise  on  this 
ground,  and  the  statute  requires  that  there 
shall  be  an  election  precinct  in  each  town- 
ship, the  defendant  cannot,  on  appeal,  for 
the  first  time,  object  that  the  complaint 
does  not  allege  nor  the  judge  find  that 
said  place  was  a  precinct  at  which  the 
election  would  have  been  held.  People  v. 
Jones,  20  Cal.  50. 

Tenns  defined.  A  drainage  district  is 
not  a  municipal  corporation.  People  v. 
Sacramento  Drainage  District,  155  Cal. 
373;  103  Pae.  207.  A  municipal  corpora- 
tion is  a  "person,"  within  the  meaning  of 
this  section.  People  v.  Oakland,  92  Cal. 
611;  28  Pae.  807;  and  see  People  v. 
Nevada  Township,  6  Cal.  143.  In  the  ab- 
stract, the  word  "office"  signifies  a  place 
of  trust;  in  the  legal  sense,  an  office  is 
an  entity,  and  may  exist  in  fact,  though 
it  is  without  an  incumbent,  and  in  the 
latter  sense  the  word  "office"  is  used,  in 
a  number  of  instances,  both  in  the  con- 
stitution and  in  the  statutes;  it  is  also 
defined  as  a  right  to  exercise  a  public 
function  or  employment,  and  to  take  the 
fees  and  emoluments  belonging  to  it. 
People  V.  Stratton,  28  Cal.  382;  Miller  v. 
Board  of  Supervisors,  25  Cal.  93;  People 
V.  Harrington,  63  Cal.  257. 

Voluntary  dissolution  of  corporations. 
See  notes  post,  §§  1227-1233. 

Nature  and  kinds  of  franchises.  See  note  131 
Am.  St.  Rep.  f^fi'i. 

What  is  ofiice.  and  how  distinguished  from  mere 
employment.  St-e  notes  72  Am.  Dec.  179;  17  Ann. 
Cas-.  4.51. 

Eouity  jurisdiction  to  determine  title  to  ofiace. 
Sec   note  42   Am.   St.   Rep.  236. 

What  is  public  office.  See  note  63  Am.  St. 
Rep.  181. 

Quo  warranto  to  try  title  to  office.  See  note 
140  Am.   St.   R.p.   19.5. 

Effect  of  termination  of  office  upon  quo  war- 
ranto proceedings  to  try  title  to  public  office.  See 
notes   11   Ann.  Cas.   1170;   Ann.  ('as.   19l:5C,  1303. 

Provision  for  testing  election  of  city  officer 
before  city  council  or  other  municipal  body  as  ex- 


clusive of  quo  warranto.  See  note  26  L.  R.  A. 
(N.   S.)   208. 

Quo  warranto  to  oust  foreign  association  from 
exercise  of  corporate  function.  See  note  24 
L.  K.  A.  295. 

Quo  warranto  against  corporations  for  making 
illegal  charges  in  course  of  authorized  business. 
See  note   63   L.  R.   A.   761. 

Quo  warranto  to  test  validity  of  liquor  license. 
See  notes  18  Ann.  Cas.  526;  24  L.  R.  A.  (N.  S.) 
555. 

Quo  warranto  against  municipal  corporation. 
See  note  8   Ann.   Cas.   322. 

Who  may  maintain  quo  warranto  to  test  valid- 
ity of  organization  of  municipal  corporation  or 
political  subdivision  of  state.  See  note  21  L.  R.  A. 
(N.  S.)  685. 

Quo  warranto  at  instance  of  private  person. 
See   note   125   Am.   St.  Rep.   634. 

Right  of  private  individual  to  file  information 
in  nature  of  quo  warranto  to  try  title  to  public 
oifice.  See  notes  6  Ann.  Cas.  463  ;  13  Ann.  Cas. 
1063. 

Quo  warranto  as  matter  of  right  by  attorney- 
general  or  district  attorney.  See  note  1  L.  R.  A. 
(X.  S.)  826. 

Scope  of  discretion  of  public  prosecutor  with 
respect  to  institution  of  proceedings  in  nature  of 
quo  warranto.    See  note  15  L.  R.  A.  (N.  S.)  603. 

Necessity  for  leave  of  court  to  prosecution  of 
quo  warranto  proceedings.  See  note  6  Ann.  Cas. 
912. 

Pleadings  and  proceedings  in  quo  warranto. 
See   note   30  .-Vm.   Dec.   44. 

Burden  of  proof  in  proceedings  by  quo  war- 
ranto.   See  note  100  Am.  Dec.  268. 

Right  to  jury  trial  in  quo  warranto  proceed- 
ings.    See  note  5  Ann.  Cas.  64  0. 

Statutes  of  limitation  applicable  to  quo  war- 
ranto.   See  note  52  Ava.  St.  Rep.  312. 

CODE    COMMISSIONERS'    NOTE.      1.    Object 

of  the  action  is  to  prevent  the  usurpation  of  an 
office,  franchise,  or  liberty.  Ex  parte  Attorney- 
General,  1  Cal.  87;  People  v.  Olds,  3  Cal.  175; 
58  Am.  Dec.  398. 

2.  When  it  can  be  maintained.  To  try  title 
to  an  office.  People  v.  Scannel,  7  Cal.  439.  To 
test  the  right  of  an  appointee  of  the  board  of 
pilot  commissioners.  People  v.  Woodbury,  14 
Cal.  43.  Against  one  in  possession  of  an  office 
to  which  he  has  not  been  duly  elected,  but  who 
holds  a  certificate  of  election.  People  v.  Jones, 
20  Cal.  50. 

3.  Certificate  of  election.  One  holding  a  cer- 
tificate, without  the  legal  title  to  the  office,  is  an 
intruder,  within  the  meaning  of  this  section; 
for  the  riglit  to  the  office  comes  from  the  will 
of  the  voters  as  expressed  at  the  election.  If 
the  office  was,  in  fact,  given  by  the  voters  to 
another,  the  possession  by  the  defendant  of  the 
certificate  affords  him.  at  most,  but  a  color  of 
title,  and  does  not  invest  him  with  the  right 
which  belongs  to  another.  People  v.  Jones,  20 
Cal.  50.  A  certificate  is  not  necessary  to  enable 
a  party,  claiming  to  have  been  elected,  to  bring 
his  action;  it  is  only  prima  facie  evidence  of 
title  to  the  office,  not  conclusive.  Nor  is  it  the 
only  evidence  by  which  the  title  may  be  estab- 
lished. It  is  the  fact  of  election  which  gives 
title  to  the  ofiice,  and  this  fact  may  be  estab- 
lished, not  only  without,  but  against  the  evidence 
of  the  certificate.  Magee  v.  Board  of  Supervisors, 
10  Cal.  376.  The  issuance  of  a  certificate  to  a 
person  elected  to  office  is  a  ministerial  act. 
Conger  v.  Gilmer,  32  Cal.  75. 

4.  Generally.  The  use  of  an  abbreviated  cor- 
porate name,  by  the  officers  of  a  corporation,  is 
not  a  usurpation,  nor  will  it  support  a  proceed- 
ing by  quo  warranto  to  oust  them  from  the 
enjoyment  of  the  franchise.  People  v.  Bogart, 
45  Cal.  73;  People  v.  Sierra  Buttes  Quartz  Min- 
ing Co.,  39  Cal.  514.  The  pendency  of  pro- 
ceedings in  quo  warranto,  against  the  persons 
claiming  to  compose  a  corporation,  is  no  defense 
to  an  action  by  the  corporation.  Oroville  etc. 
R.  R.  Co.  V.  Supervisors,  37  Cal.  354. 


959 


JUDGMENT  DETERMINES  RIGHT  OF  TITLE  TO  OFFICE.  §§  804,  805 


§  804.  Name  of  person  entitled  to  office  may  be  set  forth  in  the  com- 
plaint. If  fees  have  been  received  by  the  usurper,  he  may  be  arrested. 
Whenever  such  action  is  brought,  the  attorney-general,  in  addition  to  the 
statement  of  the  cause  of  action,  may  also  set  forth  in  the  complaint  the 
name  of  the  person  rightly  entitled  to  the  office,  witli  a  statement  of  liis 
right  thereto;  and  in  such  case,  upon  proof  by  affidavit  that  the  defendant 
has  received  fees  or  emoluments  belonging  to  the  office,  and  by  means  of 
his  usurpation  thereof,  an  order  may  be  granted  by  a  justice  of  the  supreme 
court,  or  a  judge  of  the  superior  court,  for  the  arrest  of  sueli  defendant 
and  holding  him  to  bail;  and  thereupon  he  may  be  arrested  and  held  to 
bail  in  the  same  manner  and  with  the  same  effect  and  subject  to  the  same 
rights  and  liabilities  as  in  other  civil  actions  where  the  defendant  is  sub- 
ject to  arrest. 

pilot  for  the  port  of  San  Francisco,  the  complaint 
averred  that  defendants  hold,  use,  exercise,  usurp, 
and  enjoy  the  office  without  a  license,  and  also 
contained  certain  allegations  as  to  the  right  of 
relator  to  the  office.  It  was  held:  that  the  alle- 
gation as  to  relator's  riehts  could  not  be  reached 
by  general  demurrer,  the  complaint  being  good 
as  against  the  defendants;  that  they  are  not  in- 
terested in  the  question  as  to  the  riirht  of 
relator,  but  only  in  the  determination  of  their 
own  right  to  the  office.  Flynn  v.  Abbott,  16  Cal. 
258.  In  a  proceeding  to  contest  the  election 
of  district  judge,  the  ineligibility  of  the  candi- 
date receiving  the  highest  number  of  votes,  the 
defendant  being  next  on  the  list,  is  no  defense. 
The  fact  that  the  candidate  receiving  the  highest 
number  of  votes  at  an  election  by  the  people  is 
ineligible,  does  not  give  the  office  to  the  next 
highest  on  the  list.  Saunders  v.  Haynes,  13 
Cal.  145. 


Action,  where  several  claimants.    Post,  §  808. 
Arrest  and  bail.    .\nte,  §§  478  et  seq. 

Legislation  S  804.  1.  Enacted  March  11,  1872 
(hnsi'd  on  Practice  Act,  §  311),  changing  "judge" 
to  "justice"  before  "of  the  supreme  court." 

2.  -Amended  by  Code  Amdts.  1880.  p.  11, 
changing  "district  judge"  to  "judge"  of  the  su- 
perior court." 

Proper  parties  defendant  in  quo  warranto  pro- 
ceedings against  corporation.  See  note  Ann.  Cas. 
1913A,  570. 

CODE  COMMISSIONERS'  NOTE.  An  allega- 
tion that  the  defendant  is  in  possession  of  the 
office  without  authority,  is  a  sufficient  allegation 
of  intrusion  or  usurpation.  Any  defects  in  the 
complaint  in  this  respect  must  be  reached  by 
demurrer.  People  v.  Woodbury,  14  Cal.  43.  In 
an    action    for    the    usurpation    of    the    office    of 

§  805.    Judgment  may  determine  the  rights  of  both  incumbent  and  claim- 
ant.    In  every  such  action  judgment  may  be  rendered  upon  the  right  of  the 
defendant,  and  also  upon  the  right  of  the  party  so  alleged  to  be  entitled,  or 
only  upon  the  right  of  the  defendant,  as  justice  may  require. 
Judgment.    Post,  §  809.  upon  the  relator's  right  to  the  office.    Peo- 

Legislation  s  805.     Enacted   March    11.    1872       p]e  v.  Shorb,  100  Cal.  537;  38  Am.  St.  Rep. 
(based    on    Practice    Act,    §    312),    changing    (1)         o-in.     o-     p  -if-o        rp.         -indfrmeiit     in     qn 

"case"  to  "action"  and  (2)   "shall"  to  "may."  "^ ' "  •     "^'^     ^^'^-     -'"'^-       ^  "^^    ,l»"Sm0Ul     in     an 


Forms  of  judgment.  In  information  of 
quo  warranto,  there  are  two  forms  of  judg- 
ment: when  against  an  officer  or  indi- 
vidual, the  judgment  is  ouster,  and  there 
being  no  franchise  forfeited,  there  is  noth- 
ing to  seize;  and  when  against  a  corpora- 
tion by  its  corporate  name,  the  judgment 
is  ouster  and  seizure;  there  being  a  fran- 
chise, consequently  the  franchise  is  seized. 
People  V.  Dashawav  Association,  84  Cal. 
114;  12  L.  R.  A.  117;  24  Pac.  277.  The 
usurpation  of  an  office  is  one  thing,  and 
the  usurpation  of  a  franchise  is  another 
and  quite  a  different  thing:  in  the  former 
case,  the  judgment  should  be,  that  the  de- 
fendant be  excluded  from  the  office,  and 
in  the  latter,  from  the  franchise.  People 
V.  Riverside,  6G  Cal.  288;  5  Pac.  SoO. 
There  may  be  a  judgment  of  ouster  of  a 
particular  franchise,  and  not  of  the  whole 
charter.  People  v.  Dashawav  Association, 
84  Cal.  114;  12  L.  R.  A.  117;  24  Pac.  277. 

Judgment  against  incumbent.  A  judg- 
ment ousting  the  defendant  does  not  rest 


election  contest  cannot  properly  adjudge 
that  the  defendant  is  unlawfully  holiling 
the  office.  Day  v.  Gunning,  12o  Cal.  527; 
58  Pac.  172. 

Judgment  determining  right  of  claimant. 
"Where  the  relator  elaims  tlie  office  as 
against  the  incumbent,  the  court  may  not 
only  determine  the  right  of  the  defendant, 
but  that  of  the  relator  also;  and  if  it  de- 
termines in  favor  of  the  relator,  it  may 
reu<ler  judgment  that  the  defendant  forth- 
with deliver  up  to  the  relator  the  office. 
People  V.  Banvard.  27  Cal.  470;  Kellv  v. 
Edwards,  69  Cal.  460;  11  Pac.  1.  If '  the 
defendant  is  rightfully  in  the  exercise  of 
the  office,  the  relator  can  have  no  right 
thereto;  and  if  the  defendant  has  no 
right  to  the  office,  it  is  immaterial  to  him 
whether  the  office  is  vacant  or  is  to  be 
held  by  the  relator;  and  although  the  court 
may  determine  the  right  of  the  relator  to 
the  office,  it  is  not  required  to  do  so. 
People  V.  Superior  Court,  114  Cal.  466;  46 
Pac.  383. 


§806 


ACTIONS  FOR  USURPATION  OF  AN  OFFICE  OR  A  FRANCHISE. 


960 


Contempt  of  court.  Where  one  con- 
tinues to  exercise  the  functions  of  a  public 
office  after  being  adjudged  a  usurper 
thereof,  he  is  guilty  of  contempt  of  court. 
Ex  parte  Henshaw,  73  Cal.  486;  15  Pac. 
110. 

Proceedings  after  judgment  against  cor- 
poration. After  a  final  judgment  that  a 
de  facto  corporation  has  no  legal  exist- 
ence, proceedings  should  be  had  for  wind- 
ing up  and  settling  its  affairs  bv  trustees. 
People  V.  Flint,  64  Cal.  49;  28  Pac.  49.5. 

Jurisdiction.  The  supreme  court  has 
jurisdiction  of  an  appeal  taken  in  pro- 
ceedings under  this  chapter.  People  v. 
Perrv,  79  Cal.  105;  21  Pac.  423;  People  v. 
Superior  Court,  114  Cal.  466;  46  Pac.  383. 
The  jurisdiction  of  the  superior  court  to 
decree  a  dissolution  of  any  corporation  ex- 
ists only  by  virtue  of  statutory  authority; 
and  its  jurisdiction  is  limited  by  the  pro- 
visions of  the  statute,  both  as  to  the  con- 
ditions under  which  it  may  be  invoked 
and  the  extent  of  the  judgment  which  it 
may  make  in  the  exercise  of  this  jurisdic- 
tion. State  Investment  etc.  Co.  v.  Superior 
Court,  101  Cal.  135;  35  Pac.  549. 

Collateral  attack  on  judgment.  The 
court  has  jurisdiction  to  try  the  question 
of  usurpation  of  an  office,  and  incidentally 
the  question  of  the  existence  of  the  office, 
and  its  finding  upon  that  issue  cannot  be 
assailed  collaterally,  though  it  should  be 
conceded  that  the  finding  was  erroneous, 
or  though,  in  determining  the  issue,  the 
court  may  erroneously  have  believed  and 
assumed  that  a  statute  was  not  repealed. 
Ex  parte  Henshaw,  73  Cal.  486;  15  Pac.  110. 

Appeal.  The  judgment  in  an  action  un- 
der this  chapter,  adjudging  the  defendants 
guilty  of  usurping  a  franchise  to  collect 
tolls  upon  a  public  road,  and  involving  the 
right  of  the  defendants  to  possess  the 
lands  claimed  to  constitute  the  toll-road,  is 
appealable.  People  v.  Horsley,  65  Cal.  381; 
4  Pac.  384.  The  intervener  may  prosecute 
an  appeal  from  a  judgment  dissolving  the 
corporation,  notwithstanding  the  defend- 
ant, against  whom  the  judgment  was  ren- 
dered, does  not  appeal.  People  v.  Perris 
Irrigation  Dist.,  132  Cal.  289;  64  Pac.  399. 
"Where  the  only  demurrer  interposed  in 
an  action  to  determine  the  right  to  an 
office,  was  as  to  the  cause  of  action,  and 
none  was  interposed  to  the  right  of  the 
relator,  who  claimed  title  to  the  office  upon 
the  regular  returns  made  to  the  board  of 
canvassers,  his  title  is  not  involved  upon 
appeal  from  a  judgment  rendered  upon  the 
sustaining  of  the  demurrer.  People  v. 
Stewart,  132  Cal.  283;  64  Pac.  285.  Upon 
appeal   by   the   intervener   from   the   judg- 

§  806.  When  rendered  in  favor  of  applicant.  If  the  judgment  be  ren- 
dered upon  the  ri^ht  of  the  person  so  alleged  to  be  entitled,  and  the  same 
be  in  favor  of  such  person,  he  will  be  entitled,  after  taking  the  oath  of 


ment  upon  the  contest  between  him  and 
the  relator  in  an  action  to  determine  the 
title  to  office,  where  a  recount  of  votes 
was  necessary,  the  court  is  not  limited  to 
a  consideration  of  the  exceptions  taken 
by  the  appellant,  but  is  entitled  to  con- 
sider like  exceptions  taken  by  the  relator, 
in  order  to  determine  whether  errors  urged 
by  the  appellant  are  not  counterbalanced 
so  as  to  be  rendered  harmless  by  similar 
rulings  against  the  relator.  People  v.  Camp- 
bell, 138  Cal.  11;  70  Pac.  918. 

Suspension  of  proceedings  on  appeal. 
The  giving  of  a  sufficient  undertaking 
upon  appeal  to  stay  the  execution  of  a 
judgment  declaring  the  forfeiture  of  a 
corporate  charter,  suspends  all  proceedings 
upon  the  judgment.  Havemeyer  v.  Su- 
perior Court,  84  Cal.  327;  18  Aim.  St.  Rep. 
192;  10  L.  R.  A.  627;  24  Pac.  121;  State 
Investment  etc.  Co.  v.  Superior  Court,  101 
Cal.  135;  35  Pac.  549.  The  provision  of 
§  949,  post,  which  provides  that  an  appeal 
does  not  stay  proceedings  where  the  judg- 
ment adjudges  the  defendant  guilty  of 
usurping  or  intruding  into,  or  unlawfully 
holding  office,  applies  only  to  a  judgment 
in  an  action  of  quo  warranto  or  for  the 
usurpation  of  office,  and  not  to  any  judg- 
ment proper  to  be  entered  in  an  election 
contest.  Day  v.  Gunning,  125  Cal.  527;  58 
Pac.  172. 

Reversal  of  judgment  on  appeal.  In  an 
action  brought  to  try  the  right  to  an  office, 
if  the  record  shows  in  any  manner  that  all 
the  election  returns  were  given  in  evi- 
dence, the  judgment  will  not  be  reversed 
by  the  appellate  court,  even  though  there 
is  no  formal  statement  in  the  record  that 
such  returns  were  all  in  evidence.  People 
V.  Holden,  28  Cal.  123.  In  an  action  to 
have  it  determined  that  certain  persons 
are  unlawfully  claiming  to  be  and  are  ex- 
ercising the  functions  of  a  private  cor- 
poration, which  never  had  au  existence, 
a  judgment  decreeing  that  the  plaintiff 
recover  the  powers  and  franchise  exer- 
cised and  claimed  by  the  defendants,  and 
enjoining  them  from  exercising  the  same, 
will  be  reversed,  where  the  question  of 
the  non-existence  of  the  corporation  is  left 
wholly  undetermined.  People  v.  Stanford, 
77  Cal.  360;  2  L.  E.  A.  92;  18  Pac.  85;  19 
Pac.  693. 

CODE  COMMISSIONERS'  NOTE.  In  an  ac- 
tion to  determine  the  right  to  an  office  -n-here 
the  relator  claims  the  office  as  against  the  in- 
cumbent, the  court  may  not  only  determine  the 
right  of  the  defendant,  but  of  the  relator  also; 
and  if  it  determine  in  favor  of  the  relator,  may 
render  judgment  that  the  defendant  deliver  to 
the  relator  the  office.  People  v.  Banvard,  27  Cal. 
470. 


961 


DAMAGES — RIGHTS  TRIED  IN   SINGLE  ACTION — JUDGMENT.       §§  807-809 


office  and  executing  such  official  bond  as  may  be  required  by  law,  to  take 

upon  himself  the  execution  of  the  office. 

of  the  person  alleged  to  be  entitled  super- 
sedes the  necessity  of  any  other  certificate 
or  conimission:  it  is,  of  itself,  evidence  of 


Legislation  «  806.      Enacted    March    11.    1872 
(based  on  Practice  Act,  §  313),  changing  "Bhall" 

to  "will." 


Judgment  is  sufficient  evidence  of  title 
to  office.     The  entry  of  judgment  in  favor 


title  to  the  office.    Bledsoe  v.  Colgan,  138 
Cal.  34;  70Pac.  924. 


§  807.    Damages  may  be  recovered  by  successful  applicant.     If  judirmcnt 

be  rendered  upon  the  right  of  the  person  so  alleged  to  be  entitled,  in  favor 

of  such  person,  he  may  recover,  by  action,  the  damages  which  he  may  have 

sustained  by  reason  of  the  usurpation  of  the  office  by  the  defendant. 

be  given  to  §  9.36  of  the  Political  Code. 
Bledsoe  v.  Colgan,  138  Cal.  34;  70  Pac, 
924.  The  successful  contestant  for  a  pub- 
lic office  is  not  authorized  to  recover,  as 
damages,  from  the  incumbent,  who  hel<i 
the  certificate  of  election  and  discharged 
the  duties  of  the  office  pending  the  eon- 
test,  the  amount  of  the  salary  or  com- 
pensation received  by  him  pending  the 
contest:    the   incumbent   is   entitled   to   it. 


Costs  and  fine.    Post,  §  809. 

Legislation  §  807.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  314),  changing  "shall" 
to  "will." 

Judgment  is  not  a  "commission  of 
office."  A  .judgment  in  plaintifT's  favor, 
in  quo  warranto  proceedings,  is  not  "a 
commission  of  office,"  as  that  phrase  is 
used  in  §  936  of  the  Political  Code.  Bled- 
soe V.  Colgan,  138  Cal.  34;  70  Cal.  924. 


Salary,  who  entitled  to.  The  solution  Chubbuck  v.  Wilson,  151  Cal.  162;  12  Ann. 
of   the   question   as   to   who   is   entitled  to       Cas.  888;  90  Pac.  524. 

the  salarv  of  an  office,  pending  an  appeal  wi,«n,»,.  «„»  „,  «„^ 4.  *      a 

.               .  '  ,            ,    .          '  ^            ^,                    1  Whether  fine  or  Judgment  for  damages  may  be 

from  a  judgment  in  quo  warranto  proceed-  imposed  in  quo  warranto  proceedings.    See  note 

ings,  is  dependent  upon  the  construction  to  Ann.  Cas.  1913D,  942. 

§  808.  When  several  persons  claim  the  same  oflEice,  their  rights  may  be 
determined  by  a  single  action.  When  several  persons  claim  to  be  entitled 
to  the  same  office  or  franchise,  one  action  may  be  brought  against  all  such 
persons,  in  order  to  try  their  respective  rights  to  such  office  or  franchise. 

Legislation  S  808.     Enacted   March   11,    1873;        Rea,    2    Cal.    App.    109;    83    Pac.    165.     In 

re-enactment  of  Practice  Act,   §   315 


Joinder  of  parties  defendant.  All  claim- 
ants and  intruders  may  be  made  parties 
to  an  action  to  oust  defendants  from  the 
office   of  justice   of   the  peace.    People  v. 


quo  warranto,  to  oust  persons  as  school 
trustees,  all  the  defendants  who  claim  to 
have  been  elected  are  properly  joined  as 
defendants.  People  v.  Prewett,  124  Cal. 
7;  56  Pac.  619. 


§  809.  If  defendant  found  guilty,  what  judgment  to  be  rendered  against 
him.  When  a  defendant,  against  whom  such  action  has  been  brought,  is 
ad.judged  guilty  of  usurping  or  intruding  into,  or  unlawfully  holding  any 
office,  franchise,  or  privilege,  judgment  must  be  rendered  that  such  de- 
fendant be  excluded  from  the  office,  franchise,  or  privilege,  and  that  he  pay 
the  costs  of  the  action.  The  court  may  also,  in  its  discretion,  impose  upon 
the  defendant  a  fine  not  exceeding  five  thousand  dollars,  which  fine,  when 
collected,  must  be  paid  into  the  treasury  of  the  state. 

is  not  for  the  purpose  of  compensating 
the  state,  but  solely  for  the  purpose  of 
punishment;  the  judgment  of  fine  is  not 
based  on  any  evidence  of  loss  or  damage, 
but  rests,  within  the  limit  prescribed  by 
the  statute,  solely  within  the  discretion 
of  the  court;  it  is  more  properly  a  sen- 
tence or  judgment  imposed  on  the  defend- 
ant,   than    a    judgment    recovered    against 


Legislation  S  809.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §  316),  changing  "shall" 
to  "must,"  in  both  instances. 

Costs.  Where  judgment  was  rendered 
in  favor  of  the  relator,  and  against  the 
intervener,  the  relator  is  entitled  to  re- 
cover costs  against  him,  whether  the  pro- 
ceeding between  them  be  considered  as  an 
action  or  as  a  special  proceeding  to  de- 
termine the  right  to  the  office.  People  v. 
Campbell,  138  Cal.  11;  70  Pac.  918. 

Nature  of  judgment  imposing  a  fine. 
Where  a  fine  is  imjiosed  upon  the  defend- 
ant for  the  usurpation  of  a  franchise,  it 
1  Fair. — 61 


him.  People  v.  .Sutter  Street  R.  R.  Co.,  129 
Cal.  545;  79  Am.  St.  Rep.  137;  62  Pac.  104. 
Fine  payable  to  state.  The  recovery  of 
the  fine  is  for  the  benefit  of  the  state,  and 
must   be  paid  into  the   state   treasury,  no 


§§  810,  813  ACTIONS  AGAINST  STEAMERS,  VESSELS,  AND-  BOATS. 


962 


matter  who  is  the  relator.   People  v.  Bing- 
ham, 82  Cal.  238;  22  Pac.  1039. 

No  interest  on  judgment  imposing  a  fine. 
A  judgment  adjudging  the  defendant 
guilty  of  usurping  a  franchise,  and  impos- 
ing a  fine  pursuant  to  this  section,  is  penal 
in  its  nature;  and  the  same  rule  as  to  in- 
terest on  the  fine  imposed  in  such  action 
should  govern  as  applies  to  a  judgment  for 
a  fine  in  any  criminal  case,  and  no  interest 
can  be  allowed  thereupon;  such  judgment 
does  not  come  within  the  terms  of  §§  1915, 
1920,  of  the  Civil  Code.    People  v.  Sutter 


Street  R.  R.  Co.,  129  Cal.  545;  79  Am.  St. 
Rep.  137;  62  Pac.  104. 

Receiver,  how  appointed  after  judg- 
ment. The  rendition  of  the  judgment 
authorized  by  this  section  ends  the  pro- 
ceeding, so  far  as  the  superior  court  is 
concerned;  and  no  receiver  of  corporate 
property  can  be  appointed,  unless  a  new 
and  distinct  proceeding  is  commenced  by 
a  creditor  or  stockholder  of  the  corpora- 
tion. Havemeyer  v.  Superior  Court,  84  Cal. 
327;  18  Am.  St.  Rep.  192;  10  L.  R.  A. 
627;  24  Pac.  121. 


§  810.  Actions  on  information.  Undertaking.  When  the  action  is 
brought  upon  the  information  or  application  of  a  private  party,  the  at- 
torney-general may  require  such  party  to  enter  into  an  undertaking,  with 
sureties  to  be  approved  by  the  attorney-general,  conditioned  that  such 
party  or  the  sureties  will  pay  any  judgment  for  costs  or  damages  recovered 
against  the  plaintiff,  and  all  the  costs  and  expenses  incurred  in  the  prosecu- 
tion of  the  action. 

Legislation  §   810.      Added    by    Code    Amdts. 
1873-74,  p.  327. 


CHAPTER  VI. 

ACTIONS  AGAINST   STEAMERS,   VESSELS,  AND   BOATS. 


§  813.  When  vessels,  etc.,  are  liable.  Their  lia- 
bilities constitute  liens. 

§  814.     Actions,  how  brought. 

§  815.     Complaint  must  be  verified. 

§  816.  Summons  may  be  served  on  owners,  etc., 
of  vessels. 

§  817.  Plaintiff  may  have  such  vessel,  etc.,  at- 
tached. 

§  818.  The  clerk  must  issue  the  writ  of  attach- 
ment. 

§  819.     Such  writ  must  be  directed  to  the  sheriff. 

§  820.  Sheriff  must  execute  such  writ  without 
delay. 


§  821. 


The  owner,   master,  etc.,  may  appear  and 
defend  such  vessel. 

Discharge  of  attachment. 

After  appearance,  attachment  may,  on 
motion,  be  discharged. 
§  824.  When  not  discharged,  such  vessel,  etc., 
may  be  sold  at  public  auction.  Appli- 
cation of  proceeds. 
§  825.  Mariners  and  others  may  assert  their 
claim  for  wages,  notwithstanding  prior 
attachment. 

Proof   of  the  claims  of  mariners  and  others. 

Sheriff's    notice    of   sale   to    contain   meas- 
urement, tonnage,  etc. 


822. 
823. 


826. 
827. 


§  813.  When  vessels,  etc.,  are  liable.  Their  liabilities  constitute  liens. 
All  steamers,  vessels,  and  boats  are  liable : 

1.  For  services  rendered  on  board  at  the  request  of,  or  on  contract  with, 
their  respective  owners,  masters,  agents,  or  consignees. 

2.  For  supplies  furnished  in  this  state  for  their  use,  at  the  request  of 
their  respective  OAvners,  masters,  agents,  or  consignees.    . 

3.  For  work  done  or  materials  furnished  in  this  state  for  their  construc- 
tion, repair,  or  equipment. 

4.  For  their  wharfage  and  anchorage  within  this  state. 

5.  For  non-performance,  or  malperformance,  of  any  contract  for  the 
transportation  of  persons  or  property  between  places  within  this  state, 
made  by  their  respective  owners,  masters,  agents,  or  consignees. 

6.  For  injuries  committed  by  them  to  persons  or  property,  in  this  state. 

Demands  for  these  several  causes  constitute  liens  upon  all  steamers,  ves- 
sels, and  boats,  and  have  priority  in  their  order  herein  enumerated,  and 
have  preference  over  all  other  demands ;  but  such  liens  only  continue  in 
force  for  the  period  of  one  year  from  the  time  the  cause  of  action  accrued. 


Seamen's  wages,  Jurisdiction  of  actions.     Ante, 
§  114. 

Salvage.    Civ.  Code,  J  2079. 


Preference  over  all  other  demands,  as  to  labor 

claims.    Post,  §§  1204-1206. 
liien,  defined.    Post,  §  1180. 


9G3 


ADMIRALTY  JURISDICTION  OF  STATE  COURTS. 


§  813 


Legislation  8  813.  1.  Enacted  March  11,  1872 
(based  on  I'r.ictice  Act,  §  317,  lis  amended  hy 
Stats,  l.scio,  1).  ;ui4),  (1)  in  introductory  para- 
graph, chanired  "shall  be"  to  "are";  (- )  onulted 
6ul)d.  5,  which  read  the  same  as  the  present 
suljd.  5,  except  that  it  did  not  contain  the  words 
"between  places  within  this  state";  (3)  subd.  6 
was  renunibi'red  subd.  5,  the  Practice  Act  subd.  6 
readiiifT,  "Sixth.  For  injuries  committed  by  them 
to  persons  or  property.  'I'lie  said  several  causes 
of  action  shall  constitute  liens  upon  all  steamers, 
vessels,  and  boats,  and  have  priority  in  their 
order  herein  enumerated,  and  shall  have  prefer- 
ence over  all  other  demands;  provided,  such 
lien  shall  only  continue  in  force  for  the  period 
of  one  year  from  the  time  the  cause  of  action 
accrued,"  and  when  renumbered  sulid.  5  in  1872, 
a  paragraph  was  made,  beRinninf;  with  the  words 
"ITie  several,"  in  which  (a)  "said"  was  omitted 
before  "several,"  (b)  "shall"  was  omitted  before 
"constitute"  and  before  "have  preference,"  (c) 
"provided"  was  chan-red  to  "but,"  and  (d)  "lien 
shall  only"   was  changed  to   "liens  onlv." 

2.     Amended  by  Code  Amdts.  1873-74,  p.  327, 

(1)  in  subd.  2,  adding  the  words  "in  this  state"; 

(2)  in  subd.  3,  adding  (a)  "work  done  or"  and 
(b)  "in  this  state";  (3)  restoring  Practice  Act 
subd.  .5,  and  adding  therein  the  words  "between 
places  within  this  state";  (4)  restoring  the  first 
sentence  of  Practice  Act  subd.  6  (original  code 
subd.  rt)  as  subd.  6,  and  adding  at  end  the  words 
"in  this  state";  (5)  changing  the  final  paragraph 
of  original  code  section,  beginning  "The  several," 
to  the  present  final  paragraph,  beginning  "De- 
mands." 

Constniction  of  section.  This  section, 
and  §  3060  of  tlie  Civil  Code,  providing  for 
a  lien  on  vessels,  are,  under  §  44S0  of  the 
Political  Code,  to  be  construed  together, 
as  though  they  had  been  passed  at  the 
same  time,  and  were  parts  of  the  same 
statute.  Jensen  v.  Dorr,  159  Cal.  742;  116 
Pae.  553. 

Constitutionality  of  section.  The  stat- 
ute, so  far  as  it  attempts  to  authorize 
proceedings  in  rem  for  causes  of  action 
cognizable  in  admiralty,  is  unconstitu- 
tional; but,  so  far  as  it  may  be  made 
applicable  to  causes  of  action  which  are 
not  cognizable  in  courts  of  admiralty  ju- 
risdiction, it  is  constitutional;  and  there 
is  no  objection  to  the  law,  merely  because 
it  authorizes  a  suit  against  a  vessel  itself, 
except  so  far  as  the  suit  is  upon  a  mari- 
time contract.  Crawford  v.  Bark  Caroline 
Eeed,  42  Cal.  469.  The  provisions  of  this 
chapter  are  not  invalid,  although  a  suit 
may  be  brought  under  them,  of  which  the 
courts  of  the  state  have  no  jurisdiction. 
Olscn  V.  Birch,  133  Cal.  479;  85  Am.  St. 
Eep.  215;  65  Pac.  1032. 

Jurisdiction  of  state  courts.  The  state 
courts  have  concurrent  jurisdiction  of 
causes  of  action  cognizable  in  admiralty, 
where  only  a  common-law  remedy  is  sought 
(Bohannan  v.  Hammond,  42  Cal.  227);  and 
they  have  jurisdiction  of  an  action  for 
wages,  brought  by  a  seaman  against  the 
master  of  a  British  vessel,  both  subjects 
of  the  United  Kingdom,  for  services  ren- 
dered on  such  vessel,  where  the  seaman 
was  discharged  by  the  master  in  a  port  of 
the  United  States,  without  any  fault  on 
the  part  of  the  seaman  (Pugh  v.  Gillam, 
1  Cal  485) ;  and  also  of  actions  to  recover 
from  the  owners  the  value  of  supplies  sold 
and  delivered,  at  the  request  of  the  master, 


for  the  use  of  a  vessel  engaged  in  navigat- 
ing the  high  seas  (Crawford  v.  Roberts,  50 
Cal.  235);  and  also  of  actions  to  enforce 
liens  for  work  done  in  construction  and  for 
services  rendered  by  members  of  the  crew 
on  board  a  steamer  which  has  never  been 
in  commission,  nor  used  in  navigation;  the 
action  against  the  owner  personally  to  en- 
force the  liens  against  his  vessel  by  judg- 
ment, and  the  order  of  sale  thereunder,  is 
in  personam,  and  is  not  the  action  in  rem 
used  in  courts  of  admiralty.  Olsen  v.  Birch, 
133  Cal.  479;  85  Am.  St.  Rep.  215;  65  Pac. 
1032.  The  state  courts  have  jurisdiction 
also  of  an  action  for  breacli  of  contract 
for  the  transportation  of  a  passenger  from 
a  port  in  this  state  to  a  port  in  another 
state.  Ord  v.  Steamer  Uncle  Sam,  13  Cal. 
370.  The  court  does  not  acquire  jurisdic- 
tion by  reason  of  a  bond  being  given  for 
the  release  of  the  vessel,  where  jurisdic- 
tion does  not  otherwise  attach,  by  reason 
of  the  vessel  not  being  within  the  class 
designated  by  the  act.  McQueen  v.  Ship 
Russell,  1  Cal.  165. 

Jurisdiction  of  admiralty  courts.  There 
is  no  jurisdiction  in  admiralty  over  a  ves- 
sel not  engaged  in  maritime  trade  and  navi- 
gation, though  on  her  voyages  she  may 
touch,  at  one  terminus,  upon  tide-water, 
her  employment  being  substantially  on 
other  waters.  Souter  v.  The  Sea  Witch,  1 
Cal.  162.  Admiralty  jurisdiction  does  not 
extend  to  ships,  merely  because  they  are 
ships,  but  to  commerce  and  navigation; 
and  to  ships,  only  because  they  are,  and 
while  they  are,  used  in  commerce  and  navi- 
gation; a  ship,  while  building,  is  not  an 
instrument  of  commerce,  nor  is  she  such 
while  oiit  of  commission,  and  being  cared 
for  to  preserve  her  for  possible  future  use; 
a  ship,  injured  by  use,  and  only  tem- 
porarily laid  up  for  repairs,  or  being  re- 
fitted that  she  may  resume  her  voyage,  is 
considered  as  still  engaged  in  commerce. 
Olsen  V.  Birch,  133  Cal.  479;  85  Am.  St. 
Rep.  215;  65  Pac.  1032.  Where  materials 
for  equipment  and  repair,  and  also  sup- 
plies, are  furnished  a  domestic  vessel  at 
her  home  port,  under  a  contract  with  the 
master  of  the  vessel,  the  United  States 
courts  have  exclusive  original  jurisdiction 
of  proceedings  in  rem  to  enforce  a  lien 
against  the  vessel  for  the  same.  Crawford 
V.  Bark  Caroline  Reed,  42  Cal.  469.  The 
act  conferring  admiralty  and  maritime  ju- 
risdiction on  the  United  States  district 
court  expressly  saves  "to  suitors  in  all 
cases  the  right  of  a  common-law  remedy, 
where  the  common  law  is  competent  to 
give  it."  Crescent  Citv  Wharf  etc.  Co.  v. 
Simpson,  77  Cal.  286;  19  Pac.  426;  Olsen  v. 
Birch,  133  Cal.  479;  85  Am.  St.  Rep.  215; 
65  Pac.  1032. 

Maritime  contracts,  what  are.  An  ac- 
tion against  a  steamer  for  damages  for 
malperformance  of  a  contract  to  carry  the 
plaintiff  from  a  port  in  this  state  to  a  port 
in  another  state,  and  for  injuries  suffered 


§813 


ACTIONS  AGAINST  STEAMERS,  VESSELS,  AND   BOATS. 


964 


through  the  wrongful  acts  of  the  agents  of 
the  defendant  during  the  voyage,  is  an  ac- 
tion on  a  maritime  contract.  Warner  v. 
Steamship  Uncle  Sam,  9  Cal.  697.  Mari- 
time contracts  have  reference  to  naviga- 
tion upon  the  sea,  and  to  vessels  actually 
used  in  commerce,  or  in  navigation:  a  con- 
tract for  work  on  a  vessel  which  was  never 
in  commission,  and  never  used  in  naviga- 
tion, is  not  a  maritime  contract.  Olsen  v. 
Birch,  133  Cal.  479;  85  Am.  St.  Rep.  215; 
65  Pac.  1032;  Bennett  v.  Beadle,  142  Cal. 
239;  75  Pac.  843. 

Boats  used  in  navigating  the  waters  of 
this  state,  what  are.  A  vessel  whose  home 
port  is  in  another  state,  and  intended  for 
use  between  that  port  and  a  foreign  one, 
and  never  otherwise  used  in  navigating 
the  -waters  of  this  state  than  by  sailing 
into  a  harbor  in  this  state,  is  not,  within 
the  meaning  of  the  statute  of  April  10, 
1850,  a  boat  or  vessel  used  in  navigating 
the  waters  of  this  state.  Souter  v.  The 
Sea  Witch,  1  Cal.  162;  McQueen  v.  Ship 
Eussell,  1  Cal.  165;  Tucker  v.  Bark  Sacra- 
mento, 1  Cal.  403;  Bay  v.  Bark  Henry  Har- 
beck,  lCal.451. 

Common-law  and  statutory  remedies. 
The  remedy  given  by  the  act  of  April  10, 
1850,  against  boats  and  vessels,  was  strictly 
a  statutory  remedy,  and  of  a  character 
not  recognized  by  the  common  law.  Souter 
V.  The  Sea  Witch,  1  Cal.  162.  A  proceed- 
ing in  rem  is  not  a  common-law  remedy. 
Crawford  v.  Bark  Caroline  Eeed,  42  Cal. 
469.  The  idea  that  the  practice  in  this 
class  of  cases  should  be  assimilated  to  that 
prevailing  in  courts  of  admiralty  has  no 
foundation  in  the  statute;  and  in  all  cases 
where  the  statute  is  silent,  the  common 
law  furnishes  the  rule  of  decision.  Sheldon 
V.  Steamship  Uncle  Sam,  18  Cal.  526;  79 
Am.  Dec.  193;  and  see  Averill  v.  Steamer 
Hartford.  2  Cal.  308. 

Work  or  materials  for  construction,  etc., 
lien  for.  For  the  original  construction  of 
vessels,  a  lien  is  given,  irrespective  of  the 
amount  of  the  debt.  Jensen  v.  Dorr,  159 
Cal.  742;  116  Pac.  553.  This  section  must 
be  construed  as  in  pari  materia  with  the 
mechanic's  lien  law,  in  determining  the 
liability  of  a  vessel  for  a  lien  for  ma- 
terials furnished  in  this  state  for  its  con- 
struction, repair,  or  equipment;  and  the 
materials  must  be  actually  furnished  to 
the  vessel  and  used  thereon,  and  the  vessel 
must  be  in  this  state  when  the  materials 
are  so  furnished  and  used,  in  order  to  cre- 
ate the  lien;  no  lien  can  be  enforced,  in 
this  state,  upon  a  vessel  wholly  constructed 
in  another  state,  for  materials  furnished 
by  residents  of  this  state  to  shipbuilders 
engaged  in  construction  in  such  other 
state;  the  statute  not  providing  for  the 
creation  of  a  lien  by  the  act  of  the  vessel 
coming  into  the  state,  no  lien  is  enforce- 
able for  materials  furnished  out  of  the 
etate    when    the    vessel   comes    within    its 


jurisdiction.    Bennett   v.   Beadle,   142   Cal. 
239;  75  Pac.  843. 

Wharfage,  etc.,  recovery  of.  The  state 
board  of  harbor  commissioners  are  entitled 
to  avail  themselves  of  the  remedy  pro- 
vided by  this  section,  for  the  recovery  of 
tolls  and  wharfage,  against  a  vessel. 
People  V.  Steamer  America,  34  Cal.  676. 

Breach  of  contract,  and  injuries,  liabil- 
ity for.  A  steamer  is  liable  to  the  full 
extent  of  injuries,  either  in  an  action  ex 
contractu  for  the  breach  of  a  contract 
made  with  the  defendant  for  transporta- 
tion, or  in  an  action  in  the  nature  of  one 
in  tort  for  injuries  indicted,  where  the  de- 
fendant fraudulently  induced  the  plaintiff 
to  enter  into  the  contract,  and  the  plain- 
tiff was  subjected  to  hardships  and  aban- 
doned without  protection  in  an  unhealthy 
climate.  Sheldon  v.  Steamship  Uncle  Sam, 
18  Cal.  526;  79  Am.  Dec.  193.  Before  the 
amendment  of  this  section  in  1873-74,  it 
was  held  that  a  contract  for  the  trans- 
portation of  passengers  from  a  port  in  this 
state  to  a  port  in  another  state,  was  an 
entirety,  whether  the  entire  voyage  was 
to  be  performed  in  one  vessel  or  not,  and 
a  breach  of  such  contract  at  any  point, 
such  as  leaving  a  passenger  at  the  Isthmus 
of  Panama,  rendered  the  vessel  liable.  Ord 
V.  Steamer  Uncle  Sam,  13  Cal.  370.  In 
an  action  under  this  section,  by  a  husband 
and  wife,  against  a  steamship,  for  injuries 
inflicted  upon  the  wife,  disbursements  or 
'expenditures  made  by  the  husband  cannot 
be  recovered:  for  these  he  must  sue  alone. 
Sheldon  v.  Steamship  Uncle  Sam,  18  Cal. 
526:  79  Am.  Dee.  193. 

When  lien  attaches.  Under  the  Practice 
Act,  as  there  was  nothing  in  the  statute 
expressly  creating  a  lien,  the  lien  attached 
onlv  when  service  was  had  in  the  suit. 
Fisher  v.  White,  8  Cal.  419.  In  actions 
against  vessels,  the  service  of  process  in 
the  manner  prescribed  by  statute  is  equiva- 
lent to  an  actual  seizure:  it  is  not  neces- 
sary that  the  vessel  shall  be  attached,  in 
order  to  acquire  a  lien  as  against  subse- 
quent purchasers.  Meiggs  v.  Scannell,  7 
Cal.  406;  Averill  v.  Steamer  Hartford,  2 
Cal.  308. 

Lien  continues  for  one  year.  Where 
credit  is  given  for  supplies  and  materials 
furnished  a  vessel,  the  lien  of  the  person 
furnishing  the  same  continues  on  the 
vessel  for  one  year  from  the  time  for 
which  credit  is  given  expires.  Edgerly  v. 
Schooner  San  Lorenzo,  29  Cal.  41S;  Fisher 
V.  White,  8  Cal.  419. 

Relation  between  attachment  lien  and 
lien  under  this  section.  An  ordinary  at- 
tachment, irregularly  issued  under  §§  537 
and  538,  ante,  for  services  rendered  and 
material  furnished  in  the  construction  of 
a  yacht,  cannot  be  dissolved  on  the  ground 
that  the  ])laintiff's  demand  was  secured  by 
a  lieu  upon  the  vessel  antecedent  to  and 


9G5 


NATURE  OF  PROCEEDINGS — LIABILITY — EVIDENCE. 


§813 


indepcnrlent  of  any  soiziiro,  and  that  the 
affidavit  falsely  stated  that  the  debt  was 
not  secured.  Jensen  v.  Dorr,  157  Cal.  437; 
lOS  Pao.  ;'.20. 

Nature  of  proceedings.  Attachment  pro- 
ceedinos  against  vessels  are  entirely  dis- 
tinct from  the  ordinary  attachment  de- 
scribed in  §  537,  ante.  Jensen  v.  Dorr, 
157  Cal.  437;  108  Pac.  320.  Proceedings 
to  foreclose  liens  on  vessels  are  not  in  rem, 
but  in  personam,  with  the  right  to  attach 
the  interest  of  the  defendant  in  the  ves- 
sel: the}-  are  said  to  be  quasi  in  rem, 
which  phrase  has  become  quite  common 
since  Pennoyer  v.  Neff,  95  U.  S.  714,  24 
L.  Ed.  565,  where  it  is  said  that  they  are 
not  strictly  in  rem,  because  they  are  not 
against  the  'thing  as  debtor.  Olsen  v. 
Birch,  133  Cal.  479;  85  Am.  St.  Rep.  215; 
65  Pac.  1032. 

When  right  of  action  accrues,  A  party 
furnishing  suj)jilies  for  a  vessel  cannot 
maintain  an  action  therefor  until  the  term 
of  credit  fixed  by  the  .  contract  has  ex- 
pired. Edgerlv  V.  Schooner  San  Lorenzo, 
29  Cal.  418. 

Agents,  liability  for  acts  of.  The  acts 
of  agents,  masters,  or  captains  are  binding 
on  steamers  and  their  owners.  Oakland 
Cotton  Mfg.  Co.  V.  Jennings,  4G  Cal.  176; 
13  Am.  Eep.  209;  Crawford  v.  Roberts,  50 
Cal.  235;  Trabing  v.  California  Navigation 
etc.  Co.,  121  Cal.  137;  53  Pac.  644;  Kerry 
V.  Pacific  Marine  Co.,  121  Cal.  564;  66 
Am.  St.  Rep.  65;  54  Pac.  89.  Where  sup- 
plies for  a  vessel  are  purchased  at  the 
home  port,  by  the  captain,  with  the  knowl- 
edge and  consent  of  the  ship's  husband, 
the  owner  is  prima  facie  liable  for  the 
same.  Crawford  v.  Roberts,  50  Cal.  235. 
Where  the  acts  constituting  the  alleged 
■wrongs  and  injuries  done  to  the  plaintiff 
■were  done  and  performed  on  the  defend- 
ant's steamboat,  in  its  operation  as  a 
common  carrier,  by  the  captain  in  charge 
thereof,  in  the  line  of  his  employment,  the 
defendant  is  liable  in  damages  for  all  that 
the  captain  wrongfully  did  to  the  plaintiff 
in  the  execution,  or  attempted  execution, 
of  his  authority,  even  though  the  captain 
acted  from  wanton  or  malicious  motives, 
or  resorted  to  unlawful  means  in  executing 
it;  and  that  the  injuries  were  willfully  or 
wantonly  inflicteil  does  not  relieve  the  de- 
fendant from  liability.  Trabing  v,  Cali- 
fornia Navigation  etc.  Co.,  121  Cal.  137; 
53  Pac.  644.  The  agent  has  the  right  to 
bind  the  vessel  for  the  entire  contract  for 
the  transportation  of  passengers  from  a 
port  in  this  state  to  a  port  in  another  state. 
Ord  v.  Steamer  Uncle  Sam,  13  Cal.  370. 
The  master  of  a  vessel  is  presumed,  even 
at  a  home  port,  to  have  authority  to  con- 
tract for  such  articles  for  the  use  of  the 
vessel  as  come  under  the  general  api)clla- 
tion  of  ship's  stores,  and  the  owner  of  the 
vessel  is  liable  for  the  value  of  the  same, 
unless  he  shows  that  the  master  had  not 


such  power.    Crawford  v.  Roberts,  50  Cal, 
235. 

Liability  of  ship-owners.  The  act  of 
Congress  of  June  26,  1SS4  (Supp.  U.  S. 
Rev.  Stats.  1874-91,  p.  443),  which  limits 
the  liability  of  a  ship-owner  to  his  pro- 
portionate share  of  all  the  debts  and  lia- 
bilities, is  confined  to  the  liability  imposed 
on  the  part-owners  by  law,  in  consequence 
of  their  ownership  of  the  vessel,  and  does 
not  i)roliibit  part-owners  from  so  contract- 
ing as  to  become  liable  for  the  entire  dam- 
age for  breach  of  the  contract.  Kerry  v. 
Pacific  Marine  Co.,  121  Cal.  564;  66  Am.  St. 
Rep.  (J5;  54  Pac.  89.  Where  a  vessel  is  char- 
tered in  the  usual  way,  either  for  a  par- 
ticular voyage  or  for  a  period  of  time,  the 
charterer  having  authority  to  appoint  the 
master,  and  undertaking  to  victual,  man, 
and  navigate  her  at  his  own  exjiense,  he 
■n-ill  be  deemed  the  owner  pro  hac  vice,  and 
the  general  owner  will  not  be  personally 
liable  on  contracts  of  affreightment  or  for 
supplies.  Oakland  Cotton  Mfg.  Co.  v.  .Jen- 
nings, 46  Cal.  175;  13  Am.  Rep.  209;  Kerry 
V.  Pacific  Marine  Co.,  121  Cal.  564;  66 
Am.  St.  Rep.  65;  54  Pac.  89.  Where  the 
owner  lets  out  to  charter  the  hold  of  his 
vessel,  but  appoints  her  master  and  sails 
her  at  his  own  expense,  he  is  liable  on 
contracts  of  affreightment  made  by  the 
master  with  shippers  who  have  no  notice 
of  the  charter-party.  Oakland  Cotton  Mfg. 
Co.  V.  Jennings,  46  Cal.  175;  13  Am.  Rep. 
209;  Kerry  v.  Pacific  Marine  Co.,  121  Cal. 
564;  66  Am.  St.  Rep.  65;  54  Pac.  89. 

Admissibility  of  evidence  of  ownership. 
The  ship's  register  is  admissible  in  evi- 
dence, in  favor  of  the  person  claiming  to 
be  the  owner,  in  connection  with  other 
evidence  tending  to  establish  ownership. 
Brooks  v.  Minturn,  1  Cal.  481.  Where  the 
master  of  the  vessel  is  in  possession,  and 
the  record  does  not  disclose  any  other 
owner,  the  admissions  of  the  master  are 
admissible  in  evidence,  with  the  same  ef- 
fect as  if  the  suit  were  against  the  master 
himself.  Bailey  v.  Steamer  New  World. 
2  Cal.  370.  A  copy  of  the  decree  in  a  libel 
of  a  vessel  in  admiralty  is  not  admissible 
to  prove  part-ownership  in  a  person  not 
appearing  and  asserting  ownership;  and 
evidence  that  one  of  the  partners  in  the 
plaintiff's  firm  paid,  individually,  for  a 
share  in  the  corporation,  does  not  tend  to 
show  that  the  firm  or  other  partner  was  in 
any  manner  interested  in  the  vessel. 
Movnihan  v.  Drobaz,  124  Cal.  212;  71  Am. 
St.  Rep.  46;  56  Pac.  1026. 

Prima  facie  evidence  of  ownership.  The 
question  of  the  ownership  of  a  vessel  forms 
no  exception  to  the  rule  of  law,  that  the 
possession  of  property  is  prima  facie  evi- 
dence of  ownership.  Bailey  v.  Steamer 
New  World,  2  Cal.  370.  The  entry,  in  the 
custom-house  books,  of  the  register  or 
transfer  of  a  vessel,  is  not  even  prima  facie 
evidence  of  ownership,  as  against  one  not 
claiming   to   be   an   owner    therein,   unless 


813 


ACTIONS  AGAINST  STEAMERS,  VESSELS,  AND  BOATS. 


966 


such  entry  is  sbown  to  have  been  made  by 
his  authority.  Movnihan  v.  Drobaz,  124 
Cal.  212;  71  Am.  St.  Rep.  46;  56  Pac.  1026. 

Ownership  as  question  for  jury.  In  an 
action  for  materials  furnished  for  the  eon- 
struetiou  of  a  vessel,  the  question  of  owner- 
ship is  one  of  fact  for  the  jury;  and  where 
there  is  a  shadow  of  conflict  with  respect 
to  such  fact,  it  is  error  for  the  court  to 
withdraw  such  question  from  the  jury. 
Dean  v.  Ross,  105  Cal.  227;  38  Pac.  912. 

Adjudication  of  ownership.  A  libel  of 
a  vessel  in  admiralty,  where  the  proceeding 
is  in  rem,  is  only  a  conclusive  adjudication 
of  ownership  as  against  persons  actually 
interested  in  the  vessel;  and  no  one  can 
be  adjudged  to  be  a  part-owner  of  the  ves- 
sel, who  has  not  appeared  and  asserted 
ownership  or  other  interest  therein.  Moyni- 
han  V.  Drobaz,  124  Cal.  212;  71  Am,  St. 
Rep.  46;  56  Pac.  1026. 

Admissions.  The  master  of  a  vessel  has 
no  authoritj^  to  make  an  admission  of  cul- 
pability for  the  owners  of  the  ship,  after 
an  accident;  but  a  remark,  made  before  the 
accident,  showing  that  the  master  knew 
of  the  defects  causing  such  accident, 
stands  upon  a  different  basis.  Silveira  v. 
Iverson,  128  Cal.  187;  60  Pac.  687. 

Liability  of  owners  of  hired  vessels.  See  note 
13  Am.  Dee.  87. 

Territorial  limits  of  admiralty.  See  note  32 
Am.  Doc.  6.T. 

Liability  of  vessels  and  their  owners  for  in- 
juries caused  by  collision.  See  note  45  Am.  Dec. 
51. 

Eights  and  liabilities  of  part-owners  of  vessels. 
See  notes  88  Am.  Dec.  364;  90  Am.  St.  Rep.  355. 

Actions  in  state  courts  against  vessels.  See 
note  62  Am.  Dec.  234. 

Whether  contracts  to  build  vessels  are  mari- 
time contracts.    See  note  13  Am.  Rep.  273. 

Duties  of  ship-owners  to  seamen.  See  note 
1  Am.   St.  Rep.  812. 

Liability  of  ship-owners  for  injuries  received 
by  seamen  from  the  officers.  See  note  31  Am. 
St.  Rep.  8()5. 

Over  what  waters  jurisdiction  of  admiralty  ex- 
tends.   See  note  19  Am.  St.  Rep.  227. 

Liability  of  owners  for  acts  of  master  toward 
crew.    See  note  2  7  L.  R.  A.  183. 

What  contracts  will  support  maritime  lien. 
See  note   70  L.  R.  A.  354. 

Acceptance  of  commercial  paper  as  discharge 
of  maritime  lien  for  material  and  supplies.  See 
note  35  L.  R.  A.  (N.  S.)  94. 

CODE  COMMISSIONEES'  NOTE.  1.  Consti- 
tutionality. Section  317  of  the  Practice  Act  con- 
tained si.x  subdivisions,  the  fifth  of  which  read 
as  follows: 

"5th.  For  non-performance  or  malperformance 
of  any  contract  for  the  transportation  of  persons 
or  property  made  by  their  respective  owners, 
masters,   agents,   or  consignees." 

This  subdivision  was  omitted  by  the  commis- 
sioners because,  in  the  case  of  The  Mo.ses  Tavlor 
v.  Hammons.  4  Wall.  (U.  S.)  411,  18  L.  Ed. 
397,  it  had  been  held  unconstitutional,  as  being 
an  attempt  to  confer  upon  state  courts  the  power 
to  administer  a  remedy  for  marine  torts  and 
contracts.  See  also  The  Hine  v.  Trevor,  4  Wall. 
(U.  S.)  555;  18  L.  Ed.  451.  The  remaining 
portions  of  the  section  and  of  the  chapter  were 
retained,  never  having  been  expressly  held  in- 
valid. In  People  v.  .Steamer  America,  34  Cal. 
676,  in  which  the  constitutionality  of  the  whole 
section  was  challenged,  upon  the  authority,  among 
others,  of  the  cases  of  The  Iline  v.  Trevor,  and 
The   Moses   Taylor  v.   Hammons,   supra,    Mr.   Jus- 


tice   Rhodes,    in    delivering    the    opinion    of    the 
court,  says : 

"The  defendant's  counsel  presents  the  point 
that  the  statute  under  which  the  section  is 
brought  (§  2  of  Water  Front  Act  of  1864,  Stats. 
1863-64,  p.  139)  is  unconstitutional.  The 
ground  taken  is,  that  this  is  a  case  of  admiralty 
and  maritime  jurisdiction,  and  that  'as  the 
Judiciary  Act  of  1789,  passed  in  pursuance  of 
§  2  of  article  III  of  the  constitution  of  the 
ijnited  States,  provides  that  the  district  courts 
.  .  .  shall  have  exclusive  original  cognizance  of 
all  civil  cases  of  admiralty  and  maritime  juris- 
diction,' etc.,  the  legislature'  of  this  state  was 
without  power  to  confer  upon  its  own  courts 
jurisdiction  of  such  cases.  Before  this  point  can 
be  reached,  it  must  be  determined  that  this  is 
a  case  of  admiralty  and  maritime  jurisdiction. 
It  is  said  by  Mr.  Conkling  (1  Conkling  on  .Ad- 
miralty, p.  19)  that  'the  admiralty  jurisdiction, 
in  cases  of  contract,  depends  primarily  upon  the 
nature  of  the  contract,  and  is  limited  to  con- 
tracts, claims,  and  service  purely  maritime,  and 
touching  rights  and  duties  appertaining  to  com- 
merce and  navigation.'  See  De  Lovio  v.  Boit,  2 
Gall.  398;  Fed.  Cas.  No.  3776;  The  Thomas 
Jefferson,  10  Wheat.  (U.  S.)  428;  6  L.  Ed.  358, 
and  other  cases  cited.  A  cause  of  action,  to  be 
cognizable  in  admiralty,  whether  arising  out 
of  a  contract,  claim,  service,  or  obligation,  or 
liability  of  any  kind,  must  relate  to  the  busi- 
ness of  commerce  and  navigation. 

"The  defendant's  counsel,  in  stating  the  facts 
of  the  case,  says  that  'the  action  is  brought  to 
recover  wharfage  while  the  steamer  was  engaged 
in  navigating  the  high  seas,  and  conveying  pas- 
sengers and  freight  to  and  from  this  port  and 
ports  in  Central  America.'  But  it  does  not  ap- 
pear from  the  complaint  that  the  steamer  was 
engaged  in  commerce  and  navigation.  This  fact, 
or  one  of  similar  import,  must  be  stated  in  the 
pleadings,  in  order  to  make  a  case  falling  within 
the  admiralty  and  maritime  jurisdiction.  The 
court  cannot  take  judicial  notice  that  a  vessel 
found  at  a  wharf  is  engaged  in  navigating  the 
high  seas,  or  the  navigable  inland  waters  of  the 
state,  or  is  employed  in  trade,  commerce,  or 
navigation,  of  any  sort  or  in  any  manner.  That 
is  a  fact  of  jurisdictional  consequence,  and 
must  be  expressly  alleged  or  be  necessarily  in- 
ferable from  the  other  facts  alleged.  The  pre- 
cedents of  libels  in  admiralty,  although  'there 
is  no  special  custom  extant'  with  respect  to 
their  form,  state  this  fact,  that  it  is  very  gen- 
erally found  in  all  the  reported  cases.  This 
fact  not  appearing  in  the  case,  the  question 
presented  by  the  defendant's  counsel  does  not 
arise. 

"It  is  objected  that  the  harbor  commissioners 
have  no  authority  to  institute  actions  in  rem 
in  the  name  of  the  people.  Section  2  of  the 
act  of  1863—64  provides  that  'the  said  com- 
missioners are  hereby  authorized  and  empow- 
ered, in  the  name  of  the  people  of  the  state  of 
California,  to  institute  actions  at  law  and  in 
equity  for  the  possession  of  any  wharf  ...  or 
for  the  recovery  of  the  tolls,  dockage,  rents, 
and  wharfage  thereof.'  The  words  are  compre- 
hensive enough  to  include  all  the  remedies  that 
a  private  person  could  have  under  the  same 
circumstances,  and  there  are  no  words  in  the  ^ 
act,  and  nothing  in  the  nature  of  the  cause  of 
action,  indicative  of  a  restriction  to  certain 
remedies  to  the  exclusion  of  others  provided  by 
law.  We  see  no  ground  for  holding  that  the  com- 
missioners are  not  entitled  to  avail  themselves 
of  the  remedy  against  the  steamer  provided 
by  §  317  of  the  Practice  Act.  The  proceed- 
ing is  similar  to  that  adopted  in  The  Hine 
v.  Trevor,  4  Wall.  555,  18  L.  Ed.  451,  which, 
it  was  said,  was  'a  remedy  partaking  of  all 
the  essential  features  of  an  admiralty  proceeding 
in  rem.'  In  that  case  one  question  was,  whether 
the  remedy  adopted  was  one  falling  within  the 
clause  of  the  'linth  section  of  the  Judiciary 
Act  of  1789,  which  'saves  to  suitois  in  all  cases 
the  right  of  a  common-law  remedy.'  It  was 
not  held  that  the  form  of  the  remedy  adopted 
would  make  a  case  within  the  admiralty  juris- 
diction;   but   the   court   having   determined,    from 


9G7 


ACTIONS  BROUGUT   HOW — COMPLAINT   VERIFIED — SERVICE.       §§  814-816 


the  facts  of  the  case,  that  it  was  one  of  admi- 
ralty cognizance,  considered  tliat  the  remedy 
was  not  within  the  saving  clause  of  that  sec- 
tion. In  cases  ftot  within  the  jurisdiction  of 
the  admiralty  courts,  there  can  be  no  question 
that  the  legislature  may  devise  or  adopt  any 
form  of  remedy."  See  also  subds.  14,  15,  16,  17, 
of  note  to  §  :ili,  ante. 

2.  Generally.  Persons  engaged  in  navigating 
our  rivers  with  boats  must  take  every  reason- 
able precaution  to  protect  the  property  of  otliers. 
Carelessness  in  either  particular,  resulting  in 
the  injury  of  an  innocent  party,  will  make  per- 
son liable.  He  is  bound  to  temper  their  care 
according      to      circumstances      of      the      danger. 


Gerke  v.  California  Steam  Nav.  Co.,  9  Cal.  251; 
70  Am.  Dec.  G.'SO.  A  liritish  seaman  on  » 
Hritish  vessel,  of  which  a  Hritish  subject  li 
master,  may,  when  discharged  by  the  master  in 
a  port  of  the  United  States,  without  any  fault 
on  the  part  of  tlie  seaman,  sue  for  and  recover 
his  wages  in  a  state  court.  Pugh  v.  (tillam,  1 
Cal.  485.  If  credit  is  given  for  supplies  and 
materials  furnished  a  vessel,  the  lien  for  the 
price  thereof  continues  on  the  vessel  for  the 
period  of  one  year  from  the  time  the  demand 
becomes  duo.  Edgerly  v.  Schooner  San  Lorenzo, 
29  Cal.  418.  Part-owners  have  no  lien  for  ad- 
vances or  diBbursemunts.  Sterling  v.  Hanson, 
1  Cal.  480. 


§  814.  Actions,  how  brought.  Actions  for  any  of  the  causes  specified 
in  the  precedin^j:  section  nuist  be  bi'ought  a<.i:ainst  the  owners  by  name,  if 
known,  but  if  not  known,  that  fact  shall  be  stated  in  the  complaint,  and 
the  defendants  shall  be  designated  as  unknown  owners.  Other  persons 
having  a  lien  upon  the  vessel  may  be  made  defendants  to  the  action,  the 
nature  and  amount  of  such  lien  being  stated  in  the  complaint. 


Unknown  owners,  fictitious  designation  of. 
Ante.  §  474. 

Parties,  generally.    Ante,  §§  367  et  seq. 

Legislations  814.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  318,  which  read:  "Ac- 
tions for  demands  arising  upon  any  of  the 
grounds  specified  in  the  preceding  section,  may 
be  brought  directly  against  such  steamers,  ves- 
sels, or  boats."  When  §  814  was  enacted  in 
1872,   "demands"  was   changed  to   "damages." 

2.   Amended  by  Code  Amdts.  1873-74,  p.  328, 

Actions  in  rem  and  in  personam.  Under 
the  statute  of  April  10,  1850,  the  plaintiff 
eould,  at  his  option,  instead  of  proceeding 
against  the  master,  agent,  owner,  or  con- 
signee, institute  suit  against  the  boat  or 
vessel  bv  name.  Souter  v.  The  Sea  Witch, 
1  Cal.  162;  Loring  v.  Illsley,  1  Cal.  24. 
Where,  in  an  action  to  recover  damages 
for  grievances  committed  against  the  pas- 
sengers of  a  vessel,  the  master  of  the  ves- 
sel, who  was  a  part-owner,  answered  in  his 
own  behalf,  but  there  was  no  answer  on  the 
part  of  the  vessel,  nor  on  the  part  of  the 
other  owners,  and  there  was  no  service  of 

§  815.  Complaint  must  be  verified, 
steamer,  vessel,  or  boat  by  name,  and 
plaintiff,  or  some  one  on  his  behalf. 

Verification  of  pleadings.    Ante,  §  446. 

Legislation  S  815.  Enacted  March  11,  1872 
(based  on  Practice  Act,  §  319),  changing  "shall" 
to    "must,"    in   both   instances. 

Allegations  of  complaint.  The  court  can- 
not take  judicial  notice  that  a  vessel  found 
at  a  wharf  is  engaged  in  navigating  the 
high  seas,  or  the  navigable  inland  waters 
of  the  state,  or  is  engaged  in  commerce 
or  navigation  of  any  sort  or  in  any  man- 
ner: that  is  a  fact  of  jurisdictional  conse- 
quence, and  must  be  expressly  alleged,  or 
be  necessarily  inferable  from  the  other 
facts  alleged;  hence,  if  the  complaint  in 
an  action  for  the  collection  of  wharfage 
does  not  disclose  the  fact  that  the  vessel 
was  engaged  in  commerce  and  navigation, 


summons  upon  any  of  them  but  the  master, 
nor  publication  of  notice  requiring  them 
to  appear,  the  action  was  held  to  be  one  in 
personam,  and  not  in  rem,  and  the  judg- 
ment bound  onlv  the  interest  of  the  master. 
Loring  v.  Illsley,  1  Cal.  24. 

Joint  action  on  contract.  Husband  and 
wife  cannot  recover  jointly  in  an  action 
by  them  ex  contractu  for  the  breach  of  a 
contract  for  transportation;  but  if  no  de- 
murrer is  interposed,  and  if  the  facts 
stated  show  that  the  plaintiffs  are  entitled 
to  relief  for  fraud  practiced  by  the  de- 
fendant, or  for  personal  injury  to  the  wife, 
the  action  is  maintainable,  and  relief  will 
not  be  denied  on  the  ground  that  the  same 
facts  would  support  an  action  on  the  con- 
tract in  which  the  husband  alone  can  re- 
cover. Sheldon  v.  Steamship  Uncle  Sam, 
18  Cal.  526;  79  Am.  Dec.  193;  and  see  War- 
ner V.  Steamship  Uncle  Sam,  9  Cal.  697; 
Matthew  v.  Central  Pacific  E.  E.  Co.,  63 
Cal.  450. 

The  complaint  must  designate  the 
must  be  verified  by  the  oath  of  the 

the  case  cannot,  on  demurrer,  be  considered 
one  falling  within  admiralty  or  maritime 
jurisdiction.  People  v.  Steamer  America, 
34  Cal.  676.  A  complaint  alleging  an  as- 
signed claim  for  services  of  members  of 
the  crew  on  board  a  steamship,  does  not 
necessarily  imply  that  the  vessel  was  en- 
gaged in  commerce,  but  the  allegation  may 
be  applied  to  a  force  put  on  board  the  ves- 
sel to  care  for  it  before  it  was  put  in 
commission;  and  where  the  findings  show 
the  latter  case  in  fact,  the  defendant  could 
not  be  injured,  even  if  the  court  improp- 
erly refused  to  sustain  a  special  demurrer 
for  the  ambiguitv.  Olsen  v.  Birch,  133  Cal, 
479;  85  Am.  St.  Eep.  215;  65  Pac.  1032. 


§  816.     Summons  may  be  served  on  owners,  etc.,  of  vessels.     The  sum- 
mons and  copy  of  the  complaint  must  be  served  on  the  owners  if  tliey  can 


§§  817-819  ACTIONS  AGAINST  STEAMERS,  VESSELS,  AND  BOATS. 


968 


be  found;  otherwise,  they  may  be  served  on  the  master,  mate,  or  person 
having  charge  of  the  steamer,  vessel,  or  boat. 

Service  of  summons,  generally.  Ante,  §§410 
ct  seq. 

I,e^slation  §  816.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  320),  omitting  "any" 
■before  "person  having";  the  section  then  read- 
ing, "The  summons,  attached  to  a  certified  copy 
of  the  complaint,  may  be  served  on  the  master, 
mate,  or  person  having  charge  of  the  steamer, 
vessel,  or  boat  against  which  the  action  is 
brought." 

2.  Amended  by  Code  Amdts  1873-74,  p.  328, 
(1)  changing  "may"  to  "must"  before  "be 
served";  (2)  adding  the  words  "owners,  if  they 
can  be  found;  otherwise,  it  may  be  served  on 
the,"  before  "master";    (3)   and  omitting,  at  end, 


after  "boat,"  the  words  "against  which  the  ac- 
tion   is    brought." 

3.  Amended  by  Code  Amdts.  1880,  p.  12. 

CODE  COMMISSIONERS'  NOTE.  The  rule, 
requiring  a  seizure  of  the  thing  to  give  juris- 
diction in  actions  in  rem,  is  altered  by  our 
statute.  Service  on  a  person,  standing  in  a 
particular  relation  to  the  thing,  confers  juris- 
diction. Averill  v.  Steamer  Hartford,  2  Cal. 
308;  Meiggs  v.  Scannell,  7  Cal.  405;  Fisher  v. 
White,  8  Cal.  422.  The  rule  of  law,  that  pos- 
session of  personal  property  is  primary  evidence 
of  ownership,  is  uniform  in  its  application.  Tha 
question  of  the  ownership  of  a  vessel  forms  no 
exception  to  the  rule.  Bailey  v.  The  New  World, 
2  Cal.  370. 


§  817.  Plaintiff  may  have  such  vessel,  etc.,  attached.  The  plaintiff,  at 
the  time  of  issuing  the  summons,  or  at  any  time  afterwards,  may  have  the 
steamer,  vessel,  or  boat,  with  its  tackle,  apparel,  and  furniture,  attached 
as  security  for  the  satisfaction  of  any  judgment  that  may  be  recovered  in 
the  action. 

Attachment,  generally.    Ante,  |§  537  et  seq. 

Legislation  §  817.    1.  Enacted  March  11,  1873; 

re-enaetment   of   Practice    Act,    §    321. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  328, 
(1)  striking  out  "against  which  the  action  is 
brought."  after  "or  boat,"  and  (2)  changing,  at 
end,    "therein"   to   "in  the  action." 

Lien  presupposed.  An  attachment  under 
this  section  presupposes  the  existence  of 
a  lien.  .Jensen  v.  Dorr,  1.57  Cal.  437;  108 
Pae.  .320. 

Necessity  for  attachment.  It  is  not 
necessary  to  attach  a  vessel,  in  order  to 
acquire  a  lien  against  subsequent  pur- 
chasers.   Meiggs  V.  Scannell,  7  Cal.  406. 

§  818.  The  clerk  must  issue  the  writ  of  attachment.  The  clerk  of  the 
court  must  issue  a  writ  of  attachment,  on  the  application  of  the  plaintiff, 
upon  receiving  a  written  undertaking  on  behalf  of  the  plaintiff,  executed 
by  two  or  more  sufficient  sureties,  to  the  effect  that  if  the  judgment  be  ren- 
dered in  favor  of  the  owner  of  the  steamer,  vessel,  or  boat,  as  the  ease  may 
be,  he  will  pay  all  costs  and  damages  that  may  be  awarded  against  him, 
and  all  damages  that  may  be  sustained  by  him  from  the  attachment,  not 
exceeding  the  sum  specified  in  the  undertaking,  which  shall  in  no  case  be 
less  than  five  hundred  dollars. 


CODE     COMMISSIONERS'     NOTE.      In     this 

action  the  lien  attaches,  oulv  when  service  is 
had  in  the  suit.  Fisher  v.  White,  8  Cal.  418. 
As  soon  as  a  vessel  is  seized,  a  lien  attaches 
in  favor  of  the  party  at  whose  instance  the  seiz- 
ure is  made.  If  it  was  the  intention  of  the 
legislature  to  provide  that  a  lien  should  only 
be  acquired  by  attachment,  this  would  virtually 
be  denying  a  right  to  creditors  for  small  sums. 
It  would  be  almost  impossible  for  a  merchant 
or  mechanic  of  small  capital  or  credit,  who  had 
a  claim  of  a  few  hundred  dollars  against  one 
of  our  large  steamers,  or  some  sea-going  vessel, 
to  give  the  necessary  bonds  to  detain  her  until 
his  suit  could  be  determined,  and  in  the  mean 
time  she  might  be  run  off  and  sold,  free  of 
all  such  debts  or  encumbrances.  Meiggs  v.  Scan- 
nell, 7  Cal.  405. 


Attachment  bond,  generally.  Compare  ante, 
:  539. 

Qualifications  of  sureties.    Post,  §  1057. 

Legislation  g  818.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  322,  which  had_(l)  m 
first  line,  the  word  "shall"  instead  of  "must"; 
(2)  "which"  instead  of  "that"  after  "all  dani- 
Bges" ;  and,  at  end,  after  "five  hundred  dollars," 
the  section  reading,  "when  the  attachment  is  is- 
sued against  a  steamer  or  vessel,  or  less  than 
two  hundred  dollars  when  issued  against  a  boat. 
Tlie  undertaking  shall  be  accompanied  by  an 
affidavit  of  each  of  the  sureties,  that  he  is  a 
resident  and  freeholder  or  householder  of  the 
county,    and    worth    double    the    amount    specified 


in  the  undertaking  over  and  above  all  his  just 
debts  and  liabilities.  The  clerk  shall  file  the 
undertaking  and  affidavits."  When  §  818  was 
enacted  in  1872,  (1)  the  word  "the"  was  added 
before  "judgment  be  rendered,"  and  (b)  the  last 
two  sentences  of  the  Practice  Act  section  were 
omitted,  beginning  "The  undertaking  shall"  and 
ending    "affidavits." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  328, 
(1)  adding  the  words  "owner  of  the"  after  "in 
favor  of  the,"  (2)  after  "sustained  by,"  sub- 
stituting "him"  for  "such  steamer,  vessel,  or 
boat,"  and  (3)  omitting,  at  end,  the  words  of 
the  Practice  Act  and  original  code  section,  after 
"five  hundred  dollars,"  beginning  "when  the  at- 
tachment"  and  ending  "against  a  boat." 


§  819.  Such  writ  must  be  directed  to  the  sheriff.  The  writ  must  be 
directed  to  the  sheriff  of  the  county  within  which  the  steamer,  vessel,  or  boat 
lies,  and  direct  him  to  attach  such  steamer,  vessel,  or  boat,  with  its  tackle, 


969  DUTY  OF  SHERIFF OWNER,  ETC.,  MAY  DEFEND DISCHARGE.       §§  820-823 

apparel,  and  furniture,  and  keep  the  same  in  his  custody  until  discharged 
in  due  course  of  law. 

Legislation  «  819.    1.  Enacted  March  11.  1872;  flpd  in  the  writ,  besides  costs." 

b.Tsed   on   I'lactice  Act,    §    323,   which   hud    (1)    m  2.    Amended    by  Code  Amdts.  1873-74,  p.  329. 
first    line,    the    word    "shall"    instead    of    "must," 

(2)   the  word  "bv"  instead  of  "in,"  after  "dis-  Specific    writ    necessary.     In    an    action 

charged,"  and    (3)   a  limitation,  after  the  words  to  oiifon-e  a  lien  atriiinst   a  particular  ves- 

due  course  of  law"    (the  end  of  the   present   sec-  „„i     „    „       „:c_          ■,.      £      ..,.      u           i    _      i.    u_ 

tiou),   reading,   "unless   the  owner,   master,   agent.  ?el,    a    specific   writ    of   attachment    must   be 

or    consignee    thereof,    give    him    security    by    the  ISSUed:     SUCh    special    writ    gives    authority 

undertaking  of  at  least  two  sufficient  sureties,  in  to  seize  specific   property  only.    Jensen   V. 

an    amount    suflicient    to    satisfy    the    demand    in  T)r,rr    1t7Pq1    4'47.in«T>a«    TOM 

suit,   which  shall  be  specified  in   the  writ,  besides  ■^'Orr,  10  I  <^ai.  -i.it  ,  iU3  fdC.  J^U. 

wtll'    s"  flVo '■''  '■"'"'•  '*!  i,"*^^  ^"i^i'  ""l7^'?.''i."?,!!  What   constitutes   appurtenances  of  ship.    See 

When    S    819    was    enacted    in    1872,    (1)    "shall  n^tc  ">  Ann    fas    r>->-^ 


was    cliiinged    to    "must,"    (2)    "by"    was    changed 

to    "in,"    and     (3)     in    the    limitation,     "besides  CODE    COMMISSIONERS'    NOTE.      McQueen 


note  5  Ann.  Cas.  C") 

—  _     ,- -.    ,       „.„ CODE    COMMISI 

costs"  was  substituted  for  "which  shall  be  speci-        v.  Tlie  Russell,  1  Cal.  105. 

§  820.  Sheriff  must  execute  such  writ  without  delay.  The  sheriff  to 
whom  tlie  writ  is  directed  and  delivered  must  execute  it  without  delay, 
and  must  attach  and  keep  in  his  custody  the  steamer,  vessel,  or  boat  named 
therein,  with  its  tackle,  apparel,  and  furniture,  until  discharged  in  due 
course  of  law ;  but  the  sheriff  is  not  authorized  by  any  such  writ  to  interfere 
with  the  discharge  of  any  merchandise  on  board  of  such  steamer,  vessel, 
or  boat,  or  with  the  removal  of  any  trunks  or  other  property  of  passengers, 
or  of  the  captain,  mate,  seamen,  steward,  cook,  or  other  persons  employed 
on  board. 

Legislation  8  820.     1.  Enacted  March  11,  1873  with"    after    "or    boat";    and    (7)     "seaman"    to 

(based     on     Practice    Act,  §  324),     changing     (1)  "seamen." 

"shall"    to    "must,"    in    both   instances;    (2)    "the  2.  Amended    by  Code  Amdts.  1873-74,  p.  329, 

same"   to   "it"   after  "execute";    (3)    "be"   to   "is"  omitting,    before    "attach    and    keep,"    the    words 

after    "last    section";     (4)     "by"    to    "in"    before  "unless    the    undertaking    mentioned    in    the    last 

"due  course";    (5)    "shall  not   be"    to   "is"   before  section  is  given." 
"not    authorized";     (6)    "nor   will"     (sic)    to    "or 

§  821.  The  owner,  master,  etc.,  may  appear  and  defend  such  vessel.  The 
owner,  or  the  master,  agent,  or  consignee  of  the  steamer,  vessel,  or  boat, 
may,  on  behalf  of  the  owner,  appear  and  answer,  or  plead  to  the  action; 
and  may  except  to  the  sufficiency  of  the  sureties  on  the  undertaking  filed 
on  behalf  of  the  plaintiff,  and  may  require  sureties  to  justify,  as  upon  bail 
on  arrest. 

Appearance.    Post,  §  1014.  omitting    "against    which    the    action    is    brought" 

Answer.     .\nte,  §  437.  after    "boat";     (3)     inserting    "on    behalf    of    the 

Justification  of  sureties.    Ante,  §  495.  owner"    before    "appear   and    answer";    (4)    omit- 

Legislation  8  821.     1.  Enacted  March  11,  1873 ;  *'"F    "t^e" .  after    "filed    on"  ;     (5)     omitting    "in 

re-enactment    of   Practice   Act,  §  32.5.  actions  against  individuals     before     upon  bail  on 

3.   Amended    by  Code  Amdts.  1873-74,  p.  329,  airest. 

(1)     inserting    "or    the"    before    "master";     (2) 

§  822.  Discharge  of  attachment.  After  the  attachment  is  levied,  the 
owner,  or  the  master,  agent,  or  consignee  of  the  steamer,  vessel,  or  boat, 
may,  in  behalf  of  the  owner,  have  the  attachment  discharged,  upon  giving 
to  the  sheriff  an  undertaking  of  at  least  two  sufficient  sureties  in  an  amount 
sufficient  to  satisfy  the  demand  in  suit,  besides  costs,  or  depositing  that 
amount  with  the  sheriff.  Upon  receiving  such  undertaking  or  amount,  the 
sheriff  must  restore  to  the  owner,  or  the  master,  agent,  or  consignee  of  the 
owner,  the  steamer,  vessel,  or  boat  attached. 

Compare    ante,  §  540.      See    also    ante,  §§  554—  chapter   must   be    conducted   in    the    same    manner 

558.  as  in  actions  against  individuals,  e.xcept  as  otlier- 

.  1   ..•       o  oor.      t      n        *   J  >f       u  1 1    i  a-rt  '^^'^^     herein    provided:     and     in     all     proceedings 

Legislation  8  822.     1.   Enacted  March  11,  1873  subsequent   to   the  complaint,   the  steamer,   vessel, 

(based   on   Practice   Act,  §  326),   changing      shall  ^j.  y^^^i  q.^^,  ^^  design.nted  as  defendant  " 
to    "must.      the    section    then    reading,      All    pro-  3.   Amen"ded  by  Code  Amdts.  1873-74,  p.  330. 

ceedings    in   actions   under   the   provisions   of   this 

§  823.  After  appearance,  attachment  may,  on  motion,  be  discharged. 
After  the  appearance  in  the  action  of  the  owner,  the  attachment  may,  on 


§824 


ACTIONS  AGAINST   STEAMERS,  VESSELS,  AND  BOATS. 


970 


manner,  and  on  like  terms  and  con- 
subject  to  the  provisions  of  section 

Attachment  discharged  without  refer- 
ence to  levy.  Under  this  section,  involving 
§§  556  and  558,  ante,  a  writ  of  attachment 
against  a  vessel  may  be  discharged  on  mo- 
tion, if  wrongfully  issued,  without  refer- 
ence to  anv  levy  made  thereunder.  Jensen 
V.  Dorr,  157  Cal.  437;  108  Pac.  320. 

CODE  COMMISSIONERS'  NOTE.  Averill  v. 
Steamer  Hartford,  2  Cal.  308. 


motion,  also  be  discharged  in  the  same 
ditions,  as  atiachments  in  other  cases, 
eight  hundred  and  twenty-five. 

Discharge  of  attachment.    Ante,  §§  554-558. 

Legislation  §  823.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  327,  which  had  (1) 
in  tirst  line,  "to"  instead  of  "in,"  and  (2)  at 
end,  instead  of  the  present  section  number,  "sec- 
tion 329"  (of  the  Practice  Act).  When  §  823 
was  enacted  in  1872,  the  changes  supra  were 
made,  but  it  contained  the  words  of  the  Practice 
Act,    after    "owner,"  "master,  agent,  or  consignee." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  330, 
(1)  omitting  "master,  agent,  or  consignee"  after 
"owner,"  and  (2)  adding  "also"  before  "be  dis- 
charged." 

§  824.  When  not  discharged,  such  vessel,  etc.,  may  be  sold  at  public 
auction.  Application  of  proceeds.  If  the  attachment  be  not  discharged, 
and  a  judgment  be  recovered  in  the  action  in  favor  of  the  plaintiff,  and  an 
execution  be  issued  thereon,  the  sheriff  must  sell  at  public  auction,  after 
publication  of  notice  of  such  sale  for  ten  days,  the  steamer,  vessel,  or  boat, 
with  its  tackle,  apparel,  and  furniture,  or  such  interest  therein  as  may  be 
necessary,  and  must  apply  the  proceeds  of  the  sale  as  follows : 

1.  When  the  action  is  brought  for  demands  other  than  the  wages  of 
mariners,  boatmen,  and  others  employed  in  the  service  of  the  steamer,  ves- 
sel, or  boat  sold,  to  the  payment  of  the  amount  of  such  wages,  as  specified 
in  the  execution. 

2.  To  the  payment  of  the  judgment  and  costs,  including  his  fees. 

3.  He  must  pay  any  balance  remaining  to  the  owner,  or  to  the  master, 
agent,  or  consignee  who  may  have  appeared  on  behalf  of  the  owner,  or  if 
there  be  no  appearance,  then  into  court,  subject  to  the  claim  of  any  party 
or  parties  legally  entitled  thereto. 

Sale  on  execution,    generally.    Ante,  §§  694  et       roneous.     Ord    v.    Steamer   Uncle    Sam,    13 

seq. Cal.  370. 

Findings.  Where  it  was  stipulated,  in 
an  action  to  enforce  a  lien  upon  a  vessel, 
that,  at  the  commencement  of  the  action, 
the  vessel  was  seized  under  the  provisions 
of  this  chapter,  and  that  it  was  released 
upon  a  bond  being  given,  on  the  part  of 
the  defendant,  as  therein  required,  a  find- 
ing in  regard  to  the  insufficiency  of  the 
undertaking,  which  is  outside  of  any  issue 
presented  in  the  case,  cannot  be  consid- 
ered; and  a  finding  of  a  conclusion  of 
law,  that  the  plaintiff,  at  the  commence- 
ment of  the  action,  had  no  lien  upon  the 
vessel,  is  erroneous.  Moynihan  v.  Drobaz, 
124  Cal.  212;  71  Am.  St.  Rep.  46;  56  Pac. 
1026. 

Nature  and  effect  of  sale.  Where  the 
judgment  is  against  the  owner,  the  sale  of 
the  property,  if  one  is  had,  is  like  an  ordi- 
nary sale  under  execution.  Olsen  v.  Birch, 
133  Cal.  479;  85  Am.  St.  Rep.  215;  65  Pac. 
1032.  Where  the  master  of  a  vessel  was 
a  part-owner,  and  all  his  right,  title,  and 
interest  in  the  vessel  had  been  sold  under 
execution  against  him,  the  purchaser  of 
his  interest  is  not  entitled  to  supersede 
him  in  the  command  of  the  vessel,  nor  de- 
prive him  of  the  possession  thereof.  Loring 
V.  Ulsley,  1  Cal.  24. 


Payment  into  court.    Ante,  §§  572-574. 

Legislation  §  824.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  328),  (1)  in  first  para- 
graph, (a)  changing  "shall"  to  "must,"  in  both 
instances,  and  (b)  adding  "the"  after  "proceeds 
of";  (2)  in  subd.  2,  omitting  "and"  at  end  of 
paragraph;  (3)  in  subd.  3,  changing  "shall"  to 
"must." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  330, 
(1)  in  subd.  3,  (a)  adding  "or  to  the"  before 
"master,"  and  (2)  substituting  "on  behalf  of  the 
owner"   for   "in   the   action." 

3.  Amendment  by  Stats.  1901,  p.  166;  un- 
constitutional.    See  note  ante,  §  5. 

Nature  of  judgment.  A  judgment  against 
the  owners  of  a  vessel,  foreclosing  liens 
against  the  vessel,  and  providing  for  the 
sale  thereof,  with  her  engines,  tackle,  etc., 
is  not  a  judgment  directing  the  payment 
of  money,  within  the  meaning  of  §  942, 
post,  and  a  stay  bond  given  under  that  sec- 
tion, in  twice  the  amount  found  due,  is 
without  consideration,  and  void.  Olsen  v. 
Birch,  1  Cal.  App.  99;  81  Pac.  656. 

Judgment  erroneous  when.  Where,  in 
an  action  for  the  breach  of  a  contract  for 
the  transportation  of  a  passenger,  the  con- 
tract alleged  in  the  complaint  is  not  denied 
in  the  answer,  a  judgment  of  nonsuit,  on 
the  ground  that  the  contract  was  not 
proven  as  set  out  in  the  complaint,  is  er- 


971  CLAIMS  FOR   WAGES — PROOF    THEREOF.  §§825,826 

§  825.  Mariners  and  others  may  assert  their  claim  for  wages,  notwith- 
standing prior  attachment.  Any  luariner,  boatmuu,  or  otliur  i)orsoii  em- 
ployed in  the  service  of  the  steamer,  vessel,  or  boat  attached,  who  may 
wish  to  assert  his  claim  for  Ava.tros  a*iainst  the  same,  the  attar-hmonts  ])oinp: 
issued  for  otlier  demands  than  such  Ava,u:es,  may  file  an  affidavit  of  his  claim, 
setting  forth  the  amount  and  the  particular  service  rendered,  with  the 
clerk  of  the  court;  and  thereafter  no  attachment  can  be  discharcred  upon 
filing  an  undertaking,  unless  the  amount  of  such  claim,  or  the  amount  de- 
termined as  provided  in  the  next  section,  be  covered  thereby,  in  addition 
to  the  other  requirements;  and  any  execution  issued  against  such  steamer, 
vessel,  or  boat,  upon  judgment  recovered  thereafter,  must  direct  the  applica- 
tion of  the  proceeds  of  any  sale : 

1.  To  the  payment  of  the  amount  of  such  claims  filed,  or  the  amount  de- 
termined, as  provided  in  the  next  section,  which  amount  the  clerk  must 
insert  in  the  writ ; 

2.  To  the  payment  of  the  judgment  and  costs,  and  sheriff's  fees,  and  must 
direct  the  payment  of  any  balance  to  the  owner,  master,  or  consignee,  wlio 
may  have  appeared  in  the  action ;  but  if  no  appearance  by  them  be  made 
therein,  it  must  direct  a  deposit  of  the  balance  in  court. 

Preferred  claims,  for  wages,  etc.    Post,  §§  1204-       neither  been  presented  to  nor  filer!  with  the 

'^Deposit  in  court.    Ante.  §§  572  et  seq.  ^«Y*  ^'""'"^^"^  *«  -V'^.  '•'^^"i^"'^"^^  of  the 

Legislation  8  825.      Enacted  March   11.    1872  section,  nor  any  suits  instituted  thereon  to 

(based  on  Practice  Act,  §  329),   (1)  in  first  para-  entoree    them,    but    the    Claims    were    filed 

graph.    chaiiKins    (a)    "shall"    to    "may"    before  and  suits  instituted  thereon  in  the  court  of 

"^\^'",  ^^^^  i,"'n-"r  *.?  "''^"",  %^'"  :;^!t*''^?^'")V^'  another  district  or  countv,  the  court  whose 
and  (c)  shall  to  must  before  direct  ;  (2)  •  '  *"  "  .  "  Y 
making  a  paragraph  of  subd.  1,  and  (a)  adding  mesne  Or  final  process  has  made  the  first 
"amount"  before  "the  clerk,"  (b)  changing  "shall"  actual  seizure  of  the  thing  must  have  ex- 
to  "must"  and  (c)  omitting  "and"  at  end  of  elusive  power  over  its  disposal,  and  the 
paragraph:  (3)  making  a  paragraph  of  subd.  2,  .  .  '  c  .u  £  i  •  •  Ji  ^ 
and  (a)  changing  "shall"  to  "must"  in  both  in-  distribution  of  the  fund  arising  therefrom; 
stances,  and  (b)  omitting  the  word  "agent"  after  the  judgments  of  other  courts,  when  prop- 
"mnster."  the  omission  of  the  word  "agent"  being  j  authenticated,  and  filed  in  the  court 
evidently  an  oversight  of  the  code  commissioners,  -'.  ,  -,  J  ",  j.  V  i-inr  »-uu.i, 
as  the  omission  is  listed  in  the  "Errata"  of  the  having  custody  of  the  fund,  must  be  re- 
Practice  Act.  garded  as  a  complete  adjudication  of  the 
Construction  of  section.  This  section  is  subject-matter  of  the  litigation  which 
intended  to  provide  a  summary  mode  of  de-  they  disclosed,  and  entitled  to  distribution 
termining  claims  of  a  particular  class,  according  to  their  respective  merits.  Averill 
which  have  not  been  adjudicated  by  com-  v.  Steamer  Hartford,  2  Cal.  308. 
petent  tribunal;  but  where  such  claims  have 

§  826.  Proof  of  the  claims  of  mariners  and  others.  If  the  claim  of  the 
mariner,  boatman,  or  other  person  filed  with  the  clerk  of  the  court,  as  pro- 
vided in  the  last  section,  be  not  contested  within  five  days  after  notice  of 
the  filing  thereof  by  the  owner,  master,  agent,  or  consignee  of  the  steamer, 
vessel,  or  boat  against  which  the  claim  is  filed,  or  by  any  creditor,  it  shall 
be  deemed  admitted ;  but  if  contested,  the  clerk  must  indorse  upon  the  affi- 
davit thereof  a  statement  that  it  is  contested,  and  the  grounds  of  the  con- 
test, and  must  immediately  thereafter  order  the  matter  to  a  single  referee 
for  his  determination,  or  he  may  hear  the  proofs  and  determine  the  matter 
himself.  The  judgment  of  the  clerk  or  referee  may  be  reviewed  by  a  court 
in  which  the  action  is  pending  or  a  judge  thereof  immediately  after  the 
same  is  given,  and  the  judgment  of  the  court  or  judge  shall  be  final.  On 
the  review  the  court  or  judge  may  use  the  minutes  of  the  proofs  taken  by 
the  clerk  or  referee,  or  may  take  the  proofs  anew. 

Legislation  8  826.  1.  Enacted  March  11,  1873  "shall  be"  to  "is"  before  "deemed  admitted," 
(based    on    Practice    Act,  §  330),    changing     (1)         (2)    "shaU"   to   "must"  before  "indorse"  and  be- 


827 


ACTIONS  AGAINST  STEAMERS,  VESSELS,  AND  BOATS. 


972 


fore  "immediately  thereafter,"  (3)  "received" 
(sic)  to  "reviewed"  after  "referee  may  be," 
and    (4)    "sliall  be"   to   "is"   before   "final." 

3.   Amended  by  Code  Amdts.  1873-74,  p.  331, 

(1)  adding  "or  by  any  creditor"   after  "is  filed"; 

(2)  changing  "is"  to  "shall  be"  before  "deemed 
admitted";  (3)  substituting  for  "county  judge" 
the  words  "court  in  which  the  action  is  pending, 
or  a  judge  thereof"  ;  (4)  substituting  for  "county 
judge  is  final"  the  words  "court  or  judge  shall  be 
final";  and  (5)  changing  "county  judge"  to 
"court  or." 


3.   Amended  by  Code  Amdts.  1880,  p.  12,  in 

sentence  beginning  "The  judgment,"  (1)  chan- 
ging "the"  to  "a"  before  "court  in  which,"  and 
(2)  omitting,  after  "a  judge  thereof,"  the  words 
"either  in  term  or  vacation." 

CODE  COMMISSIONEES'  NOTE.  The  ad- 
missions of  a  master  in  possession  of  a  vessel 
(the  record  not  disclosing  any  other  owner), 
held  admissible  in  evidence,  with  the  same  effect 
as  though  the  suit  had  been  against  the  master. 
Bailey  v.  The  New  World,  2  Cal.  370. 


§  827.     Sheriff's  notice  of  sale  to  contain  measurement,  tonnage,  etc.    The 

notice  of  sale  published  by  the  sheriff  must  contain  a  statement  of  the 
measurement  and  tonnage  of  the  steamer,  vessel,  or  boat,  and  a  general 
description  of  her  condition. 


Legislation  §  827.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  331),  changing  "shall" 
to  "must." 


3.   Repeal  by   Stats.   1901,  p.   166;    unconsti- 
tutional.   See  note  ante,  §  5. 


973  justices'  courts — actions  in,  tried  where.  §832 

TITLE  XL 
PROCEEDINGS   IN   JUSTICES'  COURTS. 

Chapter  T.     Place  of  Trial  of  Actions  in  Justices'  Courts.     §§  832-838. 

II.     Manner  of  Commencing  Actions  in  Justices'  Courts.     §§  839-850. 

III.  Pleadings  in  Justices'  Courts.     §§  851-S()0. 

IV.  Provisional  Remedies  in  Justices'  Courts.     §§  861-870. 
Article  I.     Arrest  and  Bail.     SS  S()l-865. 

II.     Attachment.     §§  SGG-SCO. 
III.     Claim  and  Delivery  of  Personal  Property.     §  870. 
V.     Judgment  by  Default  in  Justices'  Courts.     §§  871,  872. 
VI.     Time  of  Trial  and  Postponements  in  Justices'  Courts.     §§  873-877. 
VII.     Trials  in  Justices'  Courts.     §§  878-887. 
VIII.     Judgments  (Other  than  by  Default)  in  Justices'  Courts.     §§  889-900. 
IX.     Executions  from  Justices'  Courts.     §§  901-905. 

X.     Contempts  in  Justices'  Courts.     §§  906-910. 
XI.     Dockets  of  Justices.     §§911-918. 
XII.     General  Provisions  Eclating  to  Justices'  Courts.     §§  919-926. 

CHAPTER  I. 

PLACE  OF  TRIAL  OF  ACTIONS  IN  JUSTICES'  COURTS. 

§  832.    Actions,  where  must  be  commenced.  §  836.    Proceedings  after  order  changing  place  of 
§  833.    Place  of  trial  may  be  changed  in  certain  trial. 

cases.  §  837.    Effect  of  an  order  changing  place  of  trial. 
§  834.     Ijimitation  on  the  right  to  change.  [Repealed.] 

§  835.    To  what  court  transfrrred.  §  838.    Transfer  of  cases  to  the  superior  court. 

§832.  Actions,  where  must  be  commenced.  Actions  in  justices'  courts 
must  be  commenced,  and,  subject  to  the  right  to  change  the  place  of  trial, 
as  in  this  chapter  provided,  must  be  tried: 

1.  If  there  is  no  justices'  court  for  the  township  or  city  in  which  the  de- 
fendant resides — in  any  city  or  township  of  the  county  [in  which]  he 
resides; 

2.  When  two  or  more  persons  are  jointly,  or  jointly  and  severally,  bound 
in  any  debt  or  contract,  or  otherwise  jointly  liable  in  the  same  action,  and 
reside  in  different  townships  or  different  cities  of  the  same  county,  or  in 
different  counties — in  the  township  or  city  in  which  any  of  the  persons 
liable  may  reside ; 

3.  In  cases  of  injury  to  the  person  or  property — in  the  township  or  city 
■where  the  injury  was  committed,  or  where  the  defendant  resides; 

4.  If  for  the  recovery  of  personal  property,  or  the  value  thereof,  or  dam- 
ages for  taking  or  detaining  the  same — in  the  township  or  city  in  which 
the  property  may  be  found,  or  in  which  the  property  was  taken,  or  in  which 
the  defendant  resides; 

5.  When  the  defendant  is  a  non-resident  of  the  county — in  any  township 
or  city  wherein  he  may  be  found; 

6.  When  the  defendant  is  a  non-resident  of  the  state — in  any  township  or 
city  in  the  state ; 

7.  When  a  person  has  contracted  to  perform  an  obligation  at  a  par- 
ticular place,  and  resides  in  another  county,  township,  or  city — in  the  town- 
ship or  city  in  which  such  obligation  is  to  be  performed,  or  in  which  he 
resides ;  and  the  township  or  city  in  which  tlie  obligation  is  incurred  is 
deemed  to  be  the  township  or  city  in  which  it  is  to  be  performed,  unless 
there  is  a  special  contract  in  writing  to  the  contrary; 


§832 


PLACE   OF    TRIAL    OF   ACTIONS   IN   JUSTICES'    COURTS. 


974 


8.  When  the  parties  voluntarily  appear  and  plead  without  summons — in 
any  township  or  city  in  the  state; 

9.  In  all  other  eases — in  the  township  or  city  in  which  the  defendant 
resides. 


Place   of  trial,   generally.    Ante,  §§  392   etseq. 
Jurisdiction   of  justice's    court.     Ante,  §§  112- 
115;  post,  §  925. 

Legislation  §  832.    1.  Enacted  March  11,  1872; 
based    on     Practice     Act,  §  535,     as     amended    by 
Stats.    1867-68,   p.   551,   which  read:    "No   person 
shall   be   held    to   answer   to   any   summons   issued 
against  him  from  a  justice's  court,  in   a  civil   ac- 
tion,  in   anv  township  or  city  other  than  the  one 
in  which  he  shall  reside,   except   in   the  cases  fol- 
lowing:   First.   When    there    shall    be    no   justices 
court   for  the   township   or    city   in   which   the   de- 
fendant   mav   reside,    or   no    justice    competent    to 
act  on  the  case.      Second.   When  two  or  more  per- 
sons   shall    be    jointly    or    jointly    and    severally 
bound    in     any    debt    or    contract,     or    otherwise 
jointly   liable  "in    the    same    action,    and   reside    in 
different  townships  or  different  cities  of  the  same 
countv,  or  in  different  counties,  the  plaintiff  may 
prosecute   his    action    in    a    justice's    court    of    the 
township  or  citv   in  which   any  of  the  debtors   or 
other  persons  liable  may  reside.     Third.   In  cases 
of   injury    to    the    person,    or    to    real    or   personal 
property,    the   plaintiff   may   prosecute   his   action 
in    the  "township    or    city    where    the    injury    was 
committed.      Fourth.   Where  personal  property,  un- 
justly taken   or  detained,   is   claimed,    or   damages 
therefor  are   claimed,   the  plaintiff  may  bring   his 
action  in  any  township  or  city  in  which  the  prop- 
erty may  be  found,  or  in  which  the  property  was 
taken.      Fifth.   When  the  defendant   is  a  non-resi- 
dent of  the  county,  he  may  be  sued  in  any  town- 
ship   or    city   wherein    he    may    be    found.      Sixth. 
When    a    person    has    contracted    to    perform    any 
obligation    at    a   particular   place,    and    resides    in 
another   countv   or   in   a    township   or   city   of    the 
same  countv,   he  may  be  sued  in  the  township  or 
citv  in  which   such  obligation  is  to  be  performed 
or  "in   which   he   resides:    and   for   the   purpose    of 
justices'     courts'    jurisdiction    under    this    clause, 
the   township    or   city   in    which   the   obligation    is 
incurred   shall  be   deemed   to   be   the    township    or 
city  in  which  it  is  to  be  performed,   unless  there 
is    a    special    contract    to    the    contrary.      Seventh. 
When   the    foreclosure    of    a    mortgage    or   the    en- 
forcement   of    a    lien    upon    personal    property    is 
sought  by  the  action,  the  plaintiff  may  sue  in  the 
township  or  city   where   the   property   is   situated. 
Eighth.   Any    person    or    persons    residing    in    the 
city  of   San   Francisco   may  be  held   to   answer  to 
any    summons   issued    against    him    or   them    from 
the    court    of   a    justice    for    any   township    within 
the  corporate  limits  of  the  city  of  San  Francisco 
in   anv   action    or   proceeding   whereof   justices    of 
the  peace  of  the  city  or  county  of   San  Francisco 
have   or  may  have  jurisdiction  by  law;   provided, 
nothing    herein    contained    shall    be    construed    to 
allow  any  justice   of    said   city   or   county   to  hold 
a   court   in   any   other   township   than   the   one   for 
which   he    sliall   have   been   elected."      When  §  832 
was  enacted  in  1872,  it  read  the  same  as  at  pres- 
ent,  except  for  the  amendments  of   1873-74  and 
1907 

2.' Amended  bv  Code  Amdts.  1873-74.  p.  333, 
(1)  in  subd.  3.  a"dding,  at  end,  after  "committed," 
the  words  "or  where  the  defendant  resides";  (2) 
in  subd.  4,  adding,  at  end,  after  "taken,"  the 
words  "or  in  which  the  defendant  resides";  (3) 
in  subd.  7,  adding  the  last  clause,  then  reading, 
"and  the  township  or  city  in  which  the  obliga- 
tion is  incurred  shall  be  deemed  to  be  the  town- 
ship or  city  in  which  it  is  to  be  performed,  un- 
less there  is  a  special  contract  to  the  contrary." 

3.  Amendment  by  Stats.  1901,  p.  166;  un- 
constitutional.    See  note  ante.  §  5. 

4.  Amended  by  Stats.  1907,  p.  878,  (1)  in 
subd.  1,  (a)  changing  "be"  to  "is"  after  "If 
there,"  and  (b)  omitting  (sic)  the  words  "in 
which"  before  "he  resides";  (2)  in  subd.  7,  in 
the  clause  added  in  1873-74,  (a)  changing  "shall 
be"  to  "is"  before  "deemed,"  and  (b)  adding 
the  words  "in  writing";  the  code  commissioner 
saying,   "Amendment  simply  changes  the  verb  to 


the  transitive  mood,  present   tense,   where  it   oc- 
curs  otherwise   in   the  original   section." 

Construction  of  section.  There  is  no  re- 
pugnancy between  the  provisions  of  the 
seventh  subdivision  of  this  section  and 
§  106,  ante,  and  §  848,  post.  Cole  v.  Fisher, 
66  Cal.  441;  5  Pac.  915.  The  jurisdiction 
conferred  by  §  806  of  the  Municipal  Corpo- 
ration Act  of  1883  on  recorders'  courts  of 
cities  of  the  sixth  class  is  concurrent  with 
that  conferred  by  this  chapter  as  to  all 
matters  ordinarily  cognizable  in  justices' 
courts,  within  the  corporate  limits  of  such 
cities.  Prince  v.  Fresno,  88  Cal.  407;  26 
Pac.  606.  This  section  is  to  be  construed 
in  connection  with  §  890,  post,  which  pro- 
vides for  a  mode  of  waiving  objection  to 
the  jurisdiction,  fully  as  effective  as  a 
voluntary  appearance  without  summons. 
McGorrav  v.  Superior  Court,  141  Cal.  266; 
74  Pac.  8.53. 

Jurisdiction.  It  is  essential  to  the  valid- 
ity of  a  judgment,  that  the  court  rendering 
it  has  jurisdiction:  a  justice  of  the  peace 
can  try  a  defendant  only  in  a  justice's 
court,  and  no  validity  can  attach  to  his 
judgment  rendered  in  another  forum;  and 
the  designation  of  the  court  as  a  police 
court,  and  of  the  justice  as  a  police  judge, 
cannot  be  disregarded,  nor  can  the  pro- 
ceedings be  regarded  as  having  taken  place 
in  a  justice's  court,  before  a  justice  of  the 
peace.  Ex  parte  Giambonini,  117  Cal.  573; 
49  Pac.  732. 

Action  for  breach  of  contract.  An  ac- 
tion, in  a  justice's  court,  to  recover  dam- 
ages for  the  breach  of  a  contract,  may  be 
brought  either  in  the  township  or  city 
where  the  contract  is  to  be  performed  or 
where  the  defendant  resides;  if  brought 
in  the  former  place,  prior  to  the  amend- 
ment in  1907  of  the  second  subdivision  of 
§  848,  post,  whether  the  contract  sued  on 
was  or  was  not  in  writing,  the  summons 
could  be  served  in  the  county  in  which  the 
defendant  resided.  Cole  v.  Fisher,  66  Cal. 
441;  5  Pac.  915;  and  see  Allen  v.  Napa 
County,  82  Cal.  187;  23  Pac.  43. 

Summons  served  where.  Where  a  com- 
plaint in  a  justice's  court  shows  jurisdic- 
tion of  the  subject-matter,  but  fails  to 
allege  that  the  contract  sued  on  was  in 
writing,  service  of  summons  cannot  be  had 
outside  of  the  county  in  which  the  action 
is  brought.  Olcese  v.  Justice's  Court,  156 
Cal.  82;  103  Pac.  317. 

Defendant's  residence  proved  how.  The 
fact  of  the  defendant's  residence  is  jurisdic- 
tional; but  the  statute  does  not  require 
that  its  existence  shall  be  recorded  in  the 
docket  of  the  justice,  or  be  made  to  appear 
in  any  written  evidence  of  the  proceedings 
in  the  action,  nor  does  it  provide  in  what 


975 


PLACE  OP  TRIAL  CHANGED  WHEN. 


§833 


manner  such  facts  as  are  not  rcquirprl  to 
be  entered  in  the  docket  or  other  written 
proceeding  shall  be  made  to  appear  or  bo 
proved;  and  it  is  error  for  the  court  to  re- 
ject parol  evidence  that  the  defendant,  at 
the  time  the  action  was  commenced,  re- 
sided in  the  township  where  it  was  com- 
menced.  Jolley  V.  Foltz,  34  Cal.  321. 

Record  of  proceedings  must  show  what. 
The  record  of  the  proceedings  in  a  justice's 
court,  in  which  judgment  is  rendered,  must 
affirmatively  show  that  the  suit  was  brought 
in  the  proper  township,  or  the  proceedings 
are  coram  non  judice  and  void;  and  the 
failure  of  the  defendant,  after  summons 
served,  to  appear  and  object  that  suit  was 
brought  in  the  wrong  township,  is  no  waiver 
of  the  objection.  Lowe  v.  Alexander,  15 
Cal.  296. 

Defendant  sued  under  fictitious  name.  A 
person  sued  and  served  under  a  fictitious 
name  must  come  in  and  set  ud  the  mis- 
r.omer  and  whatever  defense  he  may  have, 
or  he  is  concluded  by  the  judgment.  Brum 
V.  Ivins,  154  Cal.  17;  129  Am.  St.  Rep.  137; 
96Pac.  876. 

Equity  cases.  The  foreclosure  of  a  mort- 
gage, and  the  sale  of  the  mortgaged  prop- 
erty for  the  payment  of  the  debt  thereby 


secured,  is  a  case  of  purely  equitable  cogni- 
zance.    Willis  V.  Farley,  21  Cal.  490. 

CODE  COMMISSIONERS'  NOTE.  Subdi- 
visions 6  and  H  of  this  Bection  (5  832)  are  new 
provision*.  The  stututcs  of  18(37-68,  p.  552, 
provided,  howt-vor,  that  "nothinR  in  this  act 
should  be  construed  to  preclude  the  brinRing 
of  actions  in  justices'  courts  of  this  state  a);ninst 
any  parties  residing  out  the  state."  Section 
535  of  the  Practice  Act  contained  the  following 
subdivision  : 

"7th.  When  the  foreclosure  of  a  mortgage, 
or  the  enforcement  of  a  lien,  upon  personal 
property,  is  sought  by  the  action,  the  plaintiff 
may  sue  in  the  township  or  city  where  the 
property  is  situated." 

Hut  the  foreclosure  of  mortgage  and  the  sale 
of  the  property  for  the  payment  of  the  debt 
secured  thereby  are  matters  of  purely  equitable 
cognizance;  and  the  constitution  provides  that 
the  district  court  shall  have  jurisdiction  in  all 
cases  of  equity.  See  Willis  v.  Farley,  24  Cal. 
499.  The  sulidivision  was  therefore  omitted 
from  this  section.  No  intendments  can  be  in- 
dulged in  favor  of  the  jurisdiction  of  justices' 
courts;  but  their  jurisdiction  must  affirmatively 
appear,  or  their  judgments  will  be  void.  The 
record  must  show  that  the  suit  was  brought  in 
the  proper  township.  It  is  not  necessary,  if  the 
suit  is  not  brought  in  the  proper  place,  for  the 
defendant  to  appear  and  object  to  the  jurisdic- 
tion. A  constable  cannot  serve  summons  out 
of .  his  township.  Lowe  v.  Alexander,  15  Cal. 
301;  Jolley  v.  Foltz,  34  Cal.  321;  Rowlev  v. 
Howard,  23  Cal.  401;  see  also  note  to  §911, 
post;   see  also  §  114,  ante,  and  notes. 


§  833.  Place  of  trial  may  be  changed  in  certain  cases.  The  court  may, 
at  any  time  before  the  trial,  ou  motion,  change  the  place  of  trial  in  the  fol- 
lowing cases: 

1.  When  it  appears  to  the  satisfaction  of  the  justice  before  whom  the  ac- 
tion is  pending,  by  affidavit  of  either  party,  that  such  justice  is  a  material 
witness  for  either  party; 

2.  When  either  party  makes  and  files  an  affidavit  that  he  believes  that 
he  cannot  have  a  fair  and  impartial  trial  before  such  justice,  by  reason  of 
the  interest,  prejudice,  or  bias  of  the  justice ; 

3.  When  a  jury  has  been  demanded,  and  either  party  makes  and  files  an 
affidavit  that  he  cannot  have  a  fair  and  impartial  trial,  on  account  of  the 
bias  or  prejudice  of  the  citizens  of  the  township  or  city  against  him; 

4.  When,  from  any  cause,  the  justice  is  disqualified  from  acting; 

5.  When  the  justice  is  sick  or  unable  to  act. 


Change  of  venue,  generally.    Ante,  §§  397  et  seq. 

Legislation  §  833.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  582,  as  amended  by 
Stats.  1863,  p.  5012,  which  read:  "If,  at  any  time 
before  the  trial,  it  appear  to  the  satisfaction  of 
the  justice  before  whom  the  action  is  brought,  by 
affidavit  of  either  party,  that  such  justice  is  a 
material  witness  for  either  party,  or  if  either 
party  make  affidavit  that  he  has  reason  to  be- 
lieve, and  does  believe,  that  he  cannot  have  a 
fair  and  impartial  trial  before  such  justice,  by 
reason  of  the  interest,  prejudice,  or  bias  of  the 
justice,  the  action  may  be  transferred  to  some 
other  justice  of  the  same  or  neighboring  town- 
ship; and  in  case  a  jury  be  demanded,  and  affida- 
vit of  either  party  is  made  that  he  cannot  hiive 
a  fair  and  impartial  trial,  on  account  of  the  bi.as 
or  prejudice  of  the  citizens  of  the  township 
against  him,  the  action  may  be  transferred  to 
some  other  justice  of  the  peace  in  the  county ; 
but  only  one  transfer  shall  be  allowed  to  either 
party.  The  justice  to  whom  an  action  may  be 
transferred  by  the  provisions  of  this  section,  shall 
liave  and  exercise  the  same  jurisdiction  over  the 
action  as  if  it  had  been  originally  commenced  be- 


fore him.  The  justice  ordering  the  transfer  of 
the  action  to  another  justice,  shall  immediately 
transmit  to  the  latter,  on  payment  by  the  party 
applying  of  all  the  costs  that  have  accrued,  all 
the  papers  in  the  action,  together  with  a  certified 
transcript  from  his  docket  of  the  proceedings 
therein.  The  justice  to  whom  the  case  is  trans- 
ferred shall  issue  a  notice,  stating  the  time  and 
place  when  and  where  the  trial  will  take  place, 
which  notice  shall  be  served  upon  the  parties  by 
any  officer  authorized  to  serve  process  in  a  jus- 
tice's court,  or  by  any  person  specially  deputed 
by  the  justice  for  that  purpose,  at  least  one  day 
before   the   trial." 

Construction  of  section.  An  action  com- 
menced before  a  justice  of  the  city  of  San 
Diego,  under .§  12  of  the  act  reincorporating 
that  city,  to  recover  a  fine  for  a  violation 
of  a  city  ordinance,  may  be  transferred  for 
trial  to  a  justice  having  his  office  outside 
the  city,  but  in  the  same  county:  there  is 
nothing  in  the  reincorporating  act  to  show 


;§  834^836        place  of  trial  of  actions  in  justices'  courts. 


976 


post,  the  fact  that  a  ease  had  been  trans- 
ferred once  could  make  no  difference,  the 
object  of  law  being  to  provide  the  parties 
with  a  disinterested,  unprejudiced,  and  un- 
biased tribunal  to  adjudicate  their  cause. 
People  V.  Hubbard,  22  Cal.  34.  A  proceed- 
ing for  the  transfer  of  a  cause  from  a  state 
to  a  Federal  court  is  not  a  proceeding  for 
a  change  of  venue.  Eitzman  v.  Burnham, 
114  Cal.  522;  46  Pac.  379. 

Refusal  to  allow  change  of  venue,  effect 
of.  The  refusal  of  a  justice  of  the  peace 
to  allow  a  change  of  venue,  on  the  ground 
of  the  interest,  prejudice,  and  bias  of  the 
justice,  though  erroneous,  does  not  render 
subsequent  proceedings  before  the  justice 
without  jurisdiction,  nor  invalidate  the 
judgment  rendered  by  him.  Eitzman  v. 
Burnham,  114  Cal.  522;  46  Pac.  379. 

CODE  COMMISSIONERS'  NOTE.  If  the  jus- 
tice is  interested  in  the  result  of  the  action,  the 
place  of  trial  should  be  changed.  Larue  v.  Gas- 
kins,  5  Cal.  507.  If  the  place  of  trial  has 
been  changed  from  one  justice's  court  to  an- 
other, it  may  again  be  changed  if  it  appear  that 
good  cause  for  such  change  exists.  People  v. 
Hubbard,  22  Cal.  34. 


that  this  section  and  §  836,  post,  are  not 
applicable  to  the  case,  as  to  change  of  place 
of  trial.  Palmer  v.  Snyder,  67  Cal.  105;  7 
Pac.  196.  The  statute  does  not  provide  a 
right  to  have  a  change  of  the  place  of  trial 
of  an  action  pending  in  a  justice's  court, 
upon  the  ground  of  residence.  Powell  v. 
Sutro,  SO  Cal.  559;  22  Pac.  308.  It  seems 
to  have  been  contemplated  by  the  legis- 
lature, in  framing  the  second  subdivision 
of  this  section,  that  the  justice  shall  be  re- 
lieved from  the  very  delicate  and  trying 
duty  of  deciding  upon  the  question  of  his 
own  disqualification,  and  that  the  mere 
fact  that  a  suitor  in  his  court  makes  affi- 
davit of  his  belief  that  the  justice  is  biased 
against  him  renders  it  imperative  upon  the 
justice  to  transfer  the  ease  to  some  dis- 
interested officer.  People  v.  Compton,  123 
Cal.  403;  56  Pac.  44.  This  section  is  not 
to  be  given  the  same  construction  as  §  1431 
of  the  Penal  Code,  under  which  the  court 
has  a  discretion  to  refuse  a  change.  Miles 
V.  Justices'  Court,  13  Cal.  App.  454;  110 
Pac.  349;  Ex  parte  Wright,  119  Cal.  401; 
54  Pac.  639.    Before  the  enactment  of  §  834, 

§  834.  Limitation  on  the  right  to  change.  The  place  of  trial  cannot  be 
changed,  on  motion  of  the  same  party,  more  than  once,  upon  any  or  all 

the  grounds  specified  in  the  first,  second,  and  third  subdivisions  of  the  pre- 
ceding section. 

Legislation  §  83i.      Enacted  March  11,  1873. 

§  835.  To  what  court  transferred.  "When  the  court  orders  the  place  of 
trial  to  be  changed,  the  action  must  be  transferred  for  trial  to  a  court  the 
parties  may  agree  upon;  and  if  they  do  not  so  agree,  then  to  another  jus- 
tice's court  in  the  same  county. 

Legislation  §  835.     Enacted  March  11,  1873. 

§  836.  Proceedings  after  order  changing  place  of  trial.  After  an  order 
has  been  made,  transferring  the  action  for  trial  to  another  court,  the  fol- 
lowing proceedings  must  be  had: 

1.  The  justice  ordering  the  transfer  must  immediately  transmit  to  the 
justice  of  the  court  to  which  it  is  transferred,  on  payment  by  the  party  ap- 
plying of  all  the  costs  that  have  accrued,  all  the  papers  in  the  action, 
together  with  a  certified  transcript  from  his  docket  of  the  proceedings 
therein ; 

2.  Upon  the  receipt  by  him  of  such  papers,  the  justice  to  whom  the  case 
is  transferred  has  thereafter  the  same  jurisdiction  over  the  action  as  though 
it  had  been  commenced  in  his  court. 


Legislation  §  836.  1.  Enacted  March  11,  1873, 
the  introductory  paragraph  and  subd.  1  reading 
as  at  present,  subd.  2  then  reading,  "2.  Upon  the 
receipt  by  him  of  such  papers,  the  justice  of  the 
court  to  which  the  case  is  transferred  must  issue 
a  notice,  stating  when  and  where  the  trial  will 
take  place,  which  notice  must  be  served  upon  the 
parties  at  least  one  day  before  the  time  fixed  for 
trial." 

2.  Amendment  by  Stats.  1901,  p.  166;  un- 
constitutional.    See  note  ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  879,  changing 
subd.  2  to  read  as  now  printed;  the  code  com- 
missioner saying,  in  relation  to  §§  836,  837,  "The 
amendment  incorporates  into  §  836  the  matters  in 


former  §  837,  and  repeals  §  837,  thus  avoiding 
the  conflict  previously  existing  between  these  two 
sections."     See   Legislation  §  837. 

Application  of  section.  This  section,  as 
to  change  of  place  of  trial,  is  applicable 
to  an  action  to  recover  a  fine  for  a  viola- 
tion of  a  city  ordinance.  Palmer  v.  Snyder, 
67  Cal.  105;  7  Pac.  19G. 

Necessity  of  filing  papers  in  superior 
court.  The  superior  court  to  which  the  ac- 
tion is  transferred  has,  upon  the  failure  of 


977 


ACTIONS  TRANSFERRED  TO  SUPERIOR  COURT  WHEN.  §§  837,  838 


the  moving  party  to  pay  the  costs  of  filing 
the  papers  anew  therein,  the  power  to  deal 
with  tlie  matter,  although  the  papers  have 


not    aetnallv    been    filed    there.    Chase    v. 
Superior  Court,  154  Cal.  789;  99  Pac.  35.j. 


§837.     [Effect  of  an  order  changing  place  of  trial.     Repealed.] 

such  a  construction  as  shall  make  them 
harmonize.  Chase  v.  Superior  Court,  154 
Cal.  7S0;  00  I':i...  .'{."n. 

ElTect  of  transfer.  The  transfer  of  a 
case  puts  an  end  to  tlie  .jurisiliction  of  the 
justice  by  whom  tiio  order  was  made. 
Hatch  V.  Galvin,  50  Cal.  441. 


Legislation  S  837.     1.  Enncted  March  11,  1872. 

a.  K.pc.il  liy  .Slats.  lOOl.p.  167;  unconsti- 
tution.Tl.    .Sop  noto  ante,  §  5. 

:t.  Uei)c!ilril  liy  Stats.  1907,  p.  879.  See 
anti',  Li'(;islati()n,  §  8.36. 

Construction  of  sections.  There  is  no 
substantial  diU'orence  b(>twcon  this  section 
and  §  ;!00,  ante,  respecting  the  transfer  of 
cases,   and   both   sections   should   be  given 


§  838.  Transfer  of  cases  to  the  superior  court.  The  parties  to  an  aotinn 
in  a  justice's  eoui-t  cannot  c:ive  evidence  upon  any  question  which  involves 
the  title  or  possession  of  real  property,  or  the  legality  of  any  tax.  impost, 
assessment,  toll,  or  municipal  fine;  nor  can  any  issue  presenting  such  (|ues- 
tion  be  tried  by  such  court;  and  if  it  appear,  from  the  answer  of  the  de- 
fendant, verified  by  his  oath,  that  the  determination  of  the  action  will 
necessarily  involve  the  question  of  title  or  possession  to  real  property,  or 
the  legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine,  the  jus- 
tice must  suspend  all  further  proceedings  in  the  action  and  certify  the 
pleadings,  and,  if  any  of  the  pleadings  are  oral,  a  transcript  of  the  same, 
from  his  docket  to  the  clerk  of  the  superior  court  of  the  county;  and  from 
the  time  of  filing  such  pleadings  or  transcript  with  the  clerk,  the  superior 
court  shall  have  over  the  action  the  same  jurisdiction  as  if  it  had  been  com- 
menced therein;  provided,  that  in  cases  of  forcible  entry  and  detainer,  of 
which  justices'  courts  have  jurisdiction,  any  evidence,  otherwise  compe- 
tent, may  be  given,  and  any  question  properly  involved  therein  may  be 
determined. 


Certifying  to  superior  court,  from  justices' 
courts,  iu  cities  and  counties,    .\iitf,  §  9"J. 

Title  or  possession  of  realty  involved.  Ante, 
§  112.  siibd.  •„>. 

Legality  of  tax,  etc.,  involved.  Ante,  §  112, 
subd.  4. 

Forcible  entry  and  detainer,  jurisdiction  of. 
Ante,  §  113,  subd.  1. 

Legislation  §  838.     1.   Enacted  March  11,  1878 

(based  uu  Practice  Act,  §  581,  as  amended  by 
Stats.  1863-64,  p.  117),  (1)  changinfc  the  first 
•words  of  the  section  from  "The  parties  shall  not 
be  at  liberty  to  give  evidence";  (2)  cliuiiKing 
"shall"  to  "can"  before  "any  issue";  (3)  chan- 
ging "said  justice"  to  "such  court";  (4)  omit- 
ting, after  "and  if  it  appear,"  the  words  "from 
the    plaintiff's    own    showing    on    the    trial,    or"; 

(5)  changing  "sliall"  to  "must"  before  "sus- 
pend," and  changing  "or  if  the  pleadings  bo 
oral"   to   "and,  if  any  of  the  pleadings  are  oral"; 

(6)  adding  "clerk  of  the"  before  "district  court" 
("superior  court"  of  the  present  section);  (7) 
omitting  "county"  after  "with  the,"  before 
"clerk";  (8)  changing  (a)  "shall  have"  to  "has" 
before  "over,"  and  (b)  "were"  to  "had  been" 
before  "commenced  therein" ;  these  last  words 
then  ending  the  section. 

3.  Amended  by  Code  Amdts.  1880.  p.  18, 
(1)  substituting  "superior"  for  "district"  before 
"court,"  in  both  instances;  (2)  restoring  "shall 
have"  of  the  Practice  Act  from  "has,"  before 
"over  the   action";   and    (3)    adding  the  proviso. 

Construction  of  section.  The  supreme 
court  say,  that  it  is  conceivable  that  the 
author  of  this  section  was  of  the  opinion 
that  the  title  to  or  the  right  to  the  ]iosses- 
sion  of  the  real  estate  was  not  involved  un- 
less an  issue  to  be  tried  was  raised;  but 
they  held,  in  view  of  their  own  decisions, 
1  Fair. — 62 


that  that  view  cannot  be  maintained,  and 
it  seemed  to  them  that  the  defendant  could 
not  make  such  an  issue,  save  by  a  verified 
pleading.  Boyd  v.  Southern  California  Rv. 
Co.,  126  Cal.  571;  58  Pac.  1046.  The  pur- 
pose of  this  section  is  to  secure  to  the 
superior  court  the  right  to  hear  and  deter- 
mine the  causes  that  are,  by  the  constitu- 
tion, placed  within  its  jurisdiction.  Dungan 
V.  Clark,  159  Cal.  30;  112  Pac.  718. 

Evidence  not  allowed  in  justice's  court. 
Thp  language  of  this  section  is  clear  and 
explicit,  to  the  effect  that  the  parties  are 
not  allowed  to  give  evidence  on  any  ques- 
tion which  involves  the  title  to  or  the  pos- 
session of  real  property.  O'Meara  v.  Hables, 
163  Cal.  240;  124  Pac.  1003;  King  v.  Kut- 
ner-Goldstein  Co.,  135  Cal.  65;  67  Pac,  10. 
The  opinion  of  a  witness  as  to  the  title  to 
real  property  is  not  evidence  of  title. 
Schroeder  v.  Wittram,  66  Cal.  636;  6  Pac. 
737. 

Verified  answer  as  prerequisite  to  admis- 
sion of  evidence  or  to  transfer.  Where  any 
question  is  raised  concerning  the  legality 
of  any  tax,  impost,  assessment,  toll,  or 
municipal  fine,  in  a  case  originating  in  a 
justice's  court,  it  must  be  by  answer  veri- 
fied by  the  oath  of  the  d'efendant,  and 
unless  so  raised,  no  evidence  as  to  such 
legality  can  be  received,  either  in  the  jus- 
tice's court,  or  on  appeal  in  the  superior 


838 


PLACE   OF   TRIAL    OF   ACTIONS   IN   JUSTICES'   COURTS. 


978 


court.  Williams  v.  Mecartney,  69  Cal.  556; 
11  Pac.  1S6.  A  justice  of  the  peace  has 
no  authority,  under  this  section,  to  certify 
the  pleadings  to  the  superior  court,  nor 
does  the  superior  court  obtain  jurisdiction 
by  his  certifying  them  to  it,  unless  the  de- 
fendant has  presented  in  the  justice's  court 
a  verified  answer,  that  a  question  men- 
tioned in  this  section  is  necessarily  in- 
volved in  the  action.  Raiseh  v.  Sausalito 
Land  etc.  Co.,  131  Cal.  215;  63  Pac.  346. 
The  fact  that  the  defendant  filed  an  un- 
verified answer  is  immaterial,  where  the 
complaint  is  unverified,  as  in  such  case  an 
unverified  answer  raises  every  issue  that  a 
verified  answer  would  raise.  King  v.  Kut- 
ner-Goldstein  Co.,  135  Cal.  65;  67  Pac.  10. 
"Where  the  complaint  itself  shows  that  the 
question  of  the  title  to  or  the  right  to  the 
possession  of  real  property  is  necessarily 
involved  in  an  action  brought  before  a  jus- 
tice of  the  peace,  there  is  no  propriety  in 
requiring  a  verified  answer  before  the  case 
can  be  transferred  to  the  superior  court. 
Boyd  V.  Southern  California  Ry.  Co.,  126 
Cal.  571;  58  Pac.  1046.  It  is  an  elementary 
principle,  that  the  facts,  and  not  the  veri- 
fied answer,  constitute  the  final  test  of 
jurisdiction  upon  any  cause  of  action  in- 
augurated in  a  justice's  court.  King  v. 
Kutner-Goldstein  Co.,  135  Cal.  65;  67  Pac. 
10.  The  mere  allegation,  in  an  unverified 
answer,  that  title  to  real  estate  will  be 
brought  into  issue,  is  insufficient  to  author- 
ize the  justice  to  certify  the  case  to  the 
superior  court:  facts  should  be  stated  from 
which  such  conclusion  would  follow.  Mc- 
Allister V.  Tindal,  1  Cal.  App.  236;  81  Pac. 
1117. 

Power  and  duty  of  justice  to  transfer 
cases.  While  a  justice  of  the  peace  has 
jurisdiction  to  pass  upon  any  question  of 
fact  or  of  law  involved  in  the  trial  of  an 
issue  properly  before  him,  so  that  his  judg- 
ment will  be  binding  upon  the  parties  in 
the  absence  of  any  appeal  or  review,  yet 
he  cannot  divest  himself  of  jurisdiction 
which  he  possesses,  nor  transfer  it  to  the 
superior  court,  which  does  not  possess  it. 
Arroyo  Ditch  etc.  Co.  v.  Superior  Court,  92 
Cal.  47;  27  Am.  St.  Eep.  91;  28  Pac.  54. 
It  is  proper  for  a  justice  of  the  peace  to 
transfer  an  action  brought  in  his  court, 
where  the  answer  filed  alleges  that  the 
determination  of  the  action  necessarily 
involves  tlie  question  of  title  to  or  the  pos- 
session of  real  property.  Baker  v.  Southern 
California  Ry.  Co.,  126  Cal.  516;  58  Pac. 
1055.  Where  it  appears  from  the  verified 
answer  of  the  defendant  in  a  justice's  court, 
that  the  determination  of  the  action  neces- 
sarily involves  the  legality  of  a  license  tax 
sued  for,  the  justice  should  suspend  the 
proceedings  and  certify  the  pleadings  to 
the  superior  court.  Monterey  County  v. 
Abbott,  77  Cal.  541 ;  18  Pac.  113. 

Superior  court  acciuires  jurisdiction  how. 
The  superior  court  cannot  exercise  jurisdic- 
tion  until  it   has   acquired   it   in  tlie   mode 


prescribed  by  statute;  and  the  mere  certi- 
fying to  the  county  clerk,  by  a  justice  of 
the  peace,  of  the  pleadings  in  a  case  pend- 
ing before  the  justice,  does  not  confer  upon 
the  superior  court  jurisdiction  of  a  matter, 
the  jurisdiction  of  which  has  not  been  con- 
ferred upon  it  by  the  constitution,  nor  does 
it  acquire  jurisdiction  of  the  parties  to  the 
cause  by  thereafter  determining  that  it 
has  jurisdiction,  and  by  proceeding  in  the 
trial  of  the  cause  and  rendering  judgment 
therein.  Arroyo  Ditch  etc.  Co.  v.  Superior 
Court,  92  Cal.  47;  27  Am.  St.  Eep.  91;  28 
Pac.  54.  Where  the  action  of  the  justice 
in  certifying  the  case  is  unauthorized,  the 
case  is  not  legally  before  the  superior  court, 
and,  having  no  jurisdiction  thereof,  there 
is  no  error  in  denying  a  motion  to  change 
the  place  of  trial.  McAllister  v.  Tindal,  1 
Cal.  App.  236;  81  Pac.  1117. 

Original  and  appellate  jurisdiction  of  the 
superior  court.  The  jurisdiction  of  the  su- 
perior court  in  causes  transferred  to  it 
under  this  section  is  original,  and  not  ap- 
pellate (Raiseh  v.  Sausalito  Land  etc.  Co., 
131  Cal.  215;  63  Pac.  346);  and  if  it  would 
have  had  no  jurisdiction  if  the  action  had 
been  commenced  therein,  it  can  have  none 
by  the  filing  of  pleadings  certified  by  a  jus- 
tice of  the  peace;  it  cannot  exercise  origi- 
nal jurisdiction  in  those  matters  in  which 
its  jurisdiction  is  only  appellate.  Arroyo 
Ditch  etc.  Co.  v.  Superior  Court,  92  Cal.  47; 
27  Am.  St.  Rep.  91;  28  Pac.  54.  The  su- 
perior court  has  original  jurisdiction  in 
matters  involving  the  legality  of  a  tax,  and 
over  an  action  to  recover  a  tax,  the  legal- 
ity of  which  is  put  in  issue;  and  where  the 
parties  proceed  to  trial  upon  the  merits 
in  such  an  action,  appealed  from  the  police 
court  to  the  superior  court,  over  which  the 
superior  court  has  no  appellate  jurisdiction, 
its  original  jurisdiction  is  not  affected  by 
the  irregular  way  in  which  it  acquires  the 
jurisdiction  over  the  parties,  the  consent  of 
the  parties  to  the  trial  upon  the  merits 
being  a  waiver  of  the  irregularity  of  pro- 
cedure. Santa  Barbara  v.  Eldred,  95  Cal. 
378;  30  Pac.  562. 

Jurisdiction  of  superior  court  where  title 
to  or  possession  of  real  property  is  in- 
volved. The  superior  court  has  original 
jurisdiction  of  all  questions  pertaining  to 
the  title  to  or  the  possession  of  real  prop- 
erty; and  where  an  appeal  is  taken  upon 
questions  of  law  and  fact,  without  a  state- 
ment of  the  case,  or  anything  in  the  record 
to  show  that  the  justice's  court  exceeds  its 
jurisdiction,  it  is  not  the  duty  of  the  su- 
perior court  to  reverse  the  judgment  of  the 
justice's  court,  and  remand  the  case,  with 
instructions  to  certify  a  transcript  thereof 
back  to  the  superior  court,  but  it  is  proper 
for  it  to  try  the  cause  de  novo.  Hart  v. 
Carnall-Hopkins  Co.,  103  Cal.  132;  37  Pac. 
196.  Where  a  plaintiff  alleges  that  the 
title  to  land,  agreed  to  be  purchased  by 
him,  is  invalid,  and  he  seeks  a  return  of  the 
purchase-deposit  upon  the  ground  of  such 


979 


JURISDICTION — POLICE  COURT. 


§833 


invalidity,  the  title  to  land  is  necessarily 
involved,  and  jurisdiction  is  in  the  superior 
court,  not  in  tiie  justice's  court.  Bates  v. 
Ferricr,  19  Cal.  Ai)p.  79;  124  Pac.  889. 
Where  the  issue  of  title  or  possession  is  so 
involved  that  it  must  be  decided  in  order 
to  determine  the  case,  the  superior  court 
has  original,  and  the  supreme  court  ai)pel- 
late,  jurisdiction,  whetlier  the  involution 
may  be  said  to  be  incidental  or  not.  Hart 
V.  Carnall-Hopkins  Co.,  103  Cal.  132;  37 
Pac.  19G;  Dungan  v.  Clark,  159  Cal.  30;  112 
Pac.  718.  Where  the  case  is  certified  to 
the  superior  court,  under  this  section,  and 
the  amended  comjilaint  therein  shows  upon 
its  face  that  the  title  to  or  tbe  possession 
of  real  property  is  necessarily  involved, 
the  jurisdiction  of  the  superior  court  is  not 
atrectcd.  Baker  v.  Southern  California  Kv. 
Co.,  114  Cal.  501;  46  Pac.  604.  The  ju- 
risdiction of  the  superior  court  may  be  in- 
voked by  a  plaintiff,  when  the  title  to  or 
the  right  to  the  possession  of  real  estate  is 
involved,  irrespective  of  the  amount  of  his 
money  demand,  by  alleging  that  fact  in  his 
complaint  and  setting  forth  the  matters 
out  of  which  the  question  arises;  but  when 
his  demand  is  for  less  than  three  hundred 
dollars,  and  he  brings  an  action  therefor 
in  a  justice's  court,  without  showing  that 
such  question  is  involved,  the  defendant,  if 
he  would  invoke  the  jurisdiction  of  the 
superior  court,  must  comply  with  the  proce- 
dure authorized  therefor.  Eaisch  v.  8ausa- 
lito  Land  etc.  Co.,  131  Cal.  215;  63  Pac. 
346.  Where  the  title  to  or  the  possession 
of  real  property  is  only  incidentally  brought 
into  the  action,  or  is  only  collaterally  in 
question,  it  cannot  be  said  that  the  case 
involves  the  title  or  the  possession.  Coper- 
tini  V.  Oppermann,  76  Cal.  181;  18  Pac. 
256. 

Justice's  court  has  jurisdiction  in  what 
cases.  In  an  action  to  recover  a  deposit 
made  by  a  vendor  under  an  executory  con- 
tract for  the  sale  of  land,  the  jurisdiction 
of  the  justice's  court  is  not  ousted  by  the 
fact  that  the  title  to  the  land  is  incidentally 
called  in  question  on  the  trial:  to  occasion 
a  loss  of  jurisdiction,  the  title  or  right 
of  possession  must  be  directly  involved.  . 
Schroeder  v.  Wittram,  66  Cal.  636;  6  Pac. 
737.  Possession  of  land  may  be  shown  in 
a  justice's  court,  where  the  fact  of  posses- 
sion is  a  mere  incident,  and  not  the  basis 
of  the  action:  to  constitute  a  case  which 
involves  the  possession  of  real  property, 
the  right  of  possession  must  be  involved  in 
the  action.  Fisch  v.  Nice,  12  Cal.  App.  60; 
106  Pac.  598;  Pollock  v.  Cummings,  38  Cal.  , 
683.  A  justice's  court  has  jurisdiction  of  i 
an  action  to  recover  a  deposit  made  by  a 
vendor  under  an  executory  contract  for  the 
Bale  of  land,  by  which  he  agreed  to  pur- 
chase the  land  if  the  title  was  good,  and  in 
which  it  was  stipulated  that  if  the  title  was 
not  good,  the  deposit  was  to  be  returned. 
Schroeder  v.  Wittram.  66  Cal.  636;  6  Pac. 
737.     Where   the    consideration   of   a   note 


sued  upon  in  a  justice's  court,  by  a  private 
corjioration,  to  which  tlie  note  was  exe- 
cuted, is  a.'^sailed  upon  the  grouml  that  it 
was  given  for  an  illegal  assessment  upon 
tlie  stock  of  the  corporation  plaintiff,  the 
justice's  court,  having  jurisdiction  of  the 
amount  of  the  note,  has  full  jurisdiction  to 
determine  all  questions  relating  to  the  as- 
sessment, and  has  no  authority  to  certify 
the  j)leadings  to  the  superior  court.  Arroyo 
Ditch  etc.  Co.  v.  Superior  Court,  92  Cal.  47; 
27  Am.  St.  Kep.  91;  28  Pac.  54. 

Civil  jurisdiction  of  justices  of  the  peaice. 
See  note  ante,  §  11:^. 

Jurisdiction  of  police  court.  The  police 
court  cannot  try  an  action  to  recover  a 
license  tax,  where  the  answer  denies  the 
legality  of  the  tax:  it  must  transfer  it 
to  the  superior  court.  Santa  Barbara  v. 
Stearns,  51  Cal.  499;  Santa  Barbara  v. 
Eldred,  95  Cal.  378;  30  Pac.  562.  Where 
an  action  is  brought  in  the  police  court  to 
recover  city  taxes  assessed  against  prop- 
erty, and  the  answer  discloses  facts  which 
require  a  transfer  of  the  cause  to  the  su- 
perior court,  the  police  court,  from  the  time 
of  the  filing  of  such  answer,  is  ousted  of 
its  jurisdiction  to  proceed  further  upon  the 
merits  presented  by  the  pleadings,  and  a 
judgment  rendered  therein  is  void,  and  the 
superior  court  has  no  appellate  jurisdiction 
to  trv  the  case.  Santa  Barbara  v.  Eldred, 
95  Cal.  378;  30  Pac.  562. 

Jurisdiction  of  district  court.  The  ju- 
risdiction of  the  district  court,  under  this 
section,  was  special,  and  that  court  could 
hear  and  determine  a  cause  transferred  to 
it,  only  after  the  pleadings  before  the  jus- 
tice were  filed  with  its  clerk;  that  court 
had  jurisdiction  of  such  action,  only  because 
the  pleadings  had  before  the  justice,  and 
filed  with  its  clerk,  presented  the  issue  of 
the  legality  or  validity  of  a  tax  or  impost, 
and  it  could  then  take  jurisdiction  only 
for  the  purpose  of  trying  such  issue;  and 
where  the  amount  was  less  than  three  hun- 
dred dollars,  the  justice's  court  had  juris- 
diction to  pass  upon  every  other  issue;  and 
such  action  had  to  be  tried  and  determined 
in  the  district  court  upon  the  pleadings  in 
the  justice's  court.  Santa  Cruz  v.  Santa 
Cruz  R.  R.  Co.,  56  Cal.  143. 

Jurisdiction  must  appear  in  record.  The 
jurisdiction  of  a  court  over  any  subject- 
matter  that  is  not  included  within  its  gen- 
eral jurisdiction  must  appear  upon  the 
record  of  its  proceedings.  Eaisch  v.  Sausa- 
lito  Land  etc.  Co.,  131  Cal.  215;  63  Pac.  346. 
The  jurisdiction  of  the  superior  court  mtst 
appear  on  the  face  of  the  pleadings  certi- 
fied to  it  by  the  justice  of  the  peace,  and 
any  amendment  of  the  pleadings  which 
show  that  the  justice  had  jurisdiction  to 
try  the  case  justifies  the  court  in  remand- 
ing it.  Baker  v.  Southern  California  Rv. 
Co.,  114  Cal.  501;  46  Pac.  604. 

Unlawful  detainer  cases.  Where  a  jus- 
tice's court  has  jurisdiction  of  an  action  of 
unlawful  detainer,  it  is  improper  to  certify 


;§  839,  840    manner  op  commencing  actions  in  justices^  courts. 


980 


it  to  the  superior  court  as  involving  a  ques- 
tion of  title,  where  the  decisive  question 
in  the  case  is.  Are  the  parties  to  the  action 
landlord  and  tenant,  respectively?  Eieh- 
mond  V.  Superior  Court,  9  Cal.  App.  62;  98 
Pae.  57. 

Change  of  venue.  Where  an  action,  com- 
menced in  a  justice's  court,  is,  on  motion 
of  the  defendant,  transferred  for  trial  to 
the  superior  court  of  the  county  in  which 
it  was  brought,  because  the  answer  shows 
that  its  determination  necessarily  involves 
a  question  as  to  the  legality  of  a  tax,  the 
superior  court  has  no  power  to  change  the 
place  of  trial  to  the  county  in  which 
the  defendant  resides,  there  having  been  no 
demand  for  a  change  made  in  the  justice's 
court  at  the  time  of  answering.  Powell  v. 
Sutro,  SO  Cal.  559;  22  Pac.  308. 

Amendments  to  pleadings  allowed  when. 
The  superior  court,  in  an  action  transferred 
from  a  justice's  court  under  this  section, 
has  jurisdiction  to  allow  an  amendment  to 
the  complaint,  when  the  amended  com- 
plaint, as  well  as  the  original,  shows  upon 
its  face  that  the  title  or  possession  of  real 
estate  is  involved  in  the  action;  and  such 
amendment  may  be  allowed  in  other  re- 
spects, to  the  same  extent  as  if  the  action 
had  been  commenced  in  the  superior  court. 
Baker  v.  Southern  California  By.  Co.,  114 
Cal.  501;  46  Pac.  604. 

Terms  defined.  The  term  "possession," 
as  used  in  this  section,  means  such  a  posses- 
sion of  real  property  as  has  relation  to 
title,  or  is  necessary  to  the  enforcement  or 
defeat  of  the  cause  of  action  asserted. 
O'Meara  v.  Hables,  163  Cal.  240;  124  Pac. 
1003.  A  license  charge  or  fee  for  the  trans- 
action of  business  is  a  "tax."  Santa  Bar- 
bara V.  Stearns,  51  Cal.  499.  The  term 
"assessment,"   as  used  in  §  5  of  article  VI 


of  the  constitution,  refers  to  such  assess- 
ments as  are  authorized  in  relation  to 
revenue  and  taxation,  and  such  as  may  be 
ma-de  under  the  authority  of  a  municipal 
or  other  public  corporation  to  meet  the  cost 
or  expense  of  a  public  improvement,  and 
does  not  include  assessments  made  under 
§  331  of  the  Civil  Code,  by  a  private  corpo- 
ration upon  its  stockholders,  pursuant  to 
contract,  express  or  implied;  therefore  a 
justice's  court  h'as  jurisdiction  to  determine 
all  questions  relating  to  an  assessment  upon 
corporate  stock  that  may  be  presented  upon 
the  trial  of  a  cause,  where  the  amount  is 
within  its  jurisdiction.  Arroyo  Ditch  etc. 
Co.  v.  Superior  Court,  92  Cal.  47;  27  Am. 
St.  Rep.  91;  28  Pac.  54. 

Appeal.  There  is  nothing  before  the  su- 
perior court,  upon  appeal  from  a  justice's 
court,  until  the  undertaking  is  filed:  until 
the  sureties  justify,  the  cause  remains  in 
the  justice's  court.  Lane  v.  Superior  Court, 
5  Cal.  App.  762;  91  Pae.  405.  The  refusal 
of  a  justice  to  certify  the  pleadings  to  the 
superior  court,  when  in  duty  bound  to  do 
so,  is,  if  followed  by  a  judgment  against 
the  defendant,  subject  to  review  on  appeal. 
Clark  v.  Minnis,  50  Cal.  509. 

CODE  COMMISSIONERS'  NOTE.  Parties  to 
action  in  justice's  court  cannot  give  evidence 
upon  any  question  which  involves  the  title  or 
possession  of  real  propei'ty.  Doherty  v.  Thayer, 
31  Cal.  144;  Holman  v.  Taylor,  31  Cal.  338; 
Pollock  V.  Cummings,  38  Cal.  684;  Cullen  v. 
Langridge,  17  Cal.  67;  Cornett  v.  Bishop,  39 
Cal.  319.  See  these  cases,  commented  on  anu 
explained  in  note  to  §  115,  ante;  also  notes  8 
and  9  of  §  114,  ante;  and  see  also,  particularly, 
note  32  of  §  57,  ante.  No  question  involving 
the  legality  of  any  tax,  impost,  assessment,  toll, 
or  municiiial  fine  can  be  raised  in  a  justice's 
court.  People  v.  Mier,  24  Cal.  61;  Bell  v.  Crip- 
pin,  28  Cal.  327.  See  these  cases  commented 
on  in  §  57,  ante,  note  33. 


CHAPTER  II. 
MANNEE  OF  COMMENCING  ACTIONS  IN  JUSTICES'  COtJRTS. 


§  839.     Actions,  how  commenced. 

§  840.     Summons  may  issue  within  a  year. 

§  841.     Defendant  may  waive  summons. 

§  842.  Parties  may  appear  in  person  or  by  at- 
torney. 

§  843.     When  guardian  necessary,  how  appointed. 

§  844.  Summons,  how  issued,  directed,  and  what 
to  contain. 

§  839.     Actions,  how  commenced. 

menced  by  filing  a  complaint. 

Actions,  in  cities  and  counties,  title,  etc.    Ante, 

§  89. 

Commencement  of  action.    Ante,  §§  350,  405. 
Action,  when  pending.    Post,  §  1049. 
Complaint,  generally.    Ante,  §  42  6. 
Fees  payable  in  advance.    Ante,  §  91. 
Legislation  S  839.    1.  Enacted  March  11,  1S73; 


§  845.    Time  for  appearance  of  defendant. 

§  846.     Alias  summons. 

§  847.     Same. 

§  848.     Service  of  summons  outside  of  county. 

§  849.  Summons,  by  whom  and  how  served  and 
returned. 

§  850.  Notice  of  hearing.  Form.  Service.  Ser- 
vice by  mail.     Docket  entries. 

An  action  in  a  justice's  court  is  corn- 


based  on  Practice  Act,  §  538,  as  amended  by 
Stats.  1869-70,  p.  637,  q  v.,  post,  Legislation 
§  840.  When  §  839  was  enacted  in  1872,  it  had, 
at  the  end  of  the  section,  the  words  "and  issu- 
ing a  summons  thereon,  or  by  the  voluntary  ap- 
pearance  and  pleading   of  the   parties." 

3.   Amended   by    Code  Amdts.  18T5-76,  p.  98. 


§  840.  Summons  may  issue  within  a  year.  The  court  must  indorse  on 
the  complaint  the  date  upon  which  it  was  filed,  and  at  any  time  within  one 
year  thereafter  the  plaintiff  may  have  summons  issued. 


981 


SUMMONS   WAIVED APPELVRANCE — INFANTS,    ETC.  §§841-843 


Issuance  of  summons,  generally.    Ante,  §  406. 
Payment  of  fees,  in  cities  and  counties.    Ante, 

§  91. 

Legislation  8  840.  Enacted  March  1,1,  1872; 
based  on  PnuMice  Act,  §  .">:i8,  as  ainendcd  by 
Stats.  1869-70,  p.  637,  which  read:  "Actions  in 
justices'  courts  shall  be  commenced  by  filing  a 
copy    of    the    account,    note,    bill,    bond   or    instru- 


ment upon  which  the  action  is  brouKht,  or  a  con- 
cise statement,  in  writinR.  of  the  cause  of  action, 
and  the  issuance  of  a  summons  thereon,  within 
one  year  after  tlie  filiiiK  of  the  same,  or  by  the 
voluntary  appearance  and  pleadings  of  the  par- 
ties without  summons;  in  the  latter  case,  the  ac- 
tion shall  be  deemed  commenced  at  the  time  of 
appearance." 


§  841.     Defendant  may  waive  summons.     At  any  time  after  the  eomplnint 

is  liled  the  defendant  may,  in  writing,  or  by  appearing  and  pleading,  waive 

the  issuing  of  summons. 

the  purpose  of  taking  advantage  of  irregu- 
lar suimnons  by  a  motion  to  dismiss,  this 
does  not  amount  to  a  waiver  of  liis  rights 
so  as  to  cure  tlie  defect.  Deidesheimer  v. 
Brown,  S  Cal.  :VM). 

Service  of  process.  The  legal  service  of 
summons  in  a  justice's  court  includes,  as  a 
necessary  part  of  such  service,  service  of 
the  complaint.  Southern  Pacific  R.  R.  Co. 
V.  Superior  Court,  59  Cal.  471. 


Waiver.    Compare  ante,  §  400. 

Legislation  S  841.      Enacted  March  11,   1872. 

Special  appearance  is  not  waiver.     Where 

the  si'r\  ice  of  suiiiiiions  is  defective,  the 
justice's  court  does  not  acquire  jurisdiction 
to  proceed  against  a  defendant  by  reason 
of  his  special  appearance  for  the  purpose 
of  moving  to  set  aside  the  service.  South- 
ern Pacific  R.  R.  Co.  v.  Superior  Court,  59 
Cal.  471.  Where,  in  an  action  before  a  jus- 
tice of  the  peace,  the  defen(hint  appears  for 

§  842.  Parties  may  appear  in  person  or  by  attorney.  Parties  in  justices' 
courts  may  appear  and  act  in  person  or  by  attorney ;  and  any  person,  ex- 
cept the  constable  by  whom  the  summons  or  jury  process  was  served,  may 
act  as  attorney. 

Notice  of  appeal,  who  may  sign.  A  no- 
tice of  appeal  from  a  justice's  court  need 
not  be  signed  by  the  attorney  of  record  of 
appellant  in  that  court:  if  signed  by  the 
appellant  personally,  or  by  any  one  he  may 
select  personally  for  that  ])urpose,  it  is 
sufficient.  Tottou  v.  Superior  Court,  72  Cal. 
37:  13  Pac.  72 


Justice's  court  practitioners.    Ante,  §  96. 
Attorneys,  generally.    Ante,  §§  275  et  seq. 

Legislation  S  842.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  534,  which  read:  "Par- 
ties in  justices'  courts  may  prosecute  or  defend 
in  person,  or  by  attorney;  and  any  person,  on 
the  request  of  a  party,  may  act  as  his  attorney, 
e.-icept  that  the  constable  by  whom  the  summons 
or  jury  process  was  served,  shall  not  appear  or 
act  on  the  trial  in  behalf  of  either  party." 

§  843.  When  guardian  necessary,  how  appointed.  When  an  infant, 
insane,  or  incompetent  person  is  a  party,  he  must  appear  either  by  his  gen- 
eral guardian,  if  he  have  one,  or  by  a  guardian  ad  litem  appointed  by  the 
justice.  When  a  guardian  ad  litem  is  appointed  by  the  justice,  he  must  be 
appointed  as  follows : 

1.  If  the  infant,  insane,  or  incompetent  person,  be  plaintiff,  the  appoint- 
ment must  be  made  before  the  summons  is  issued,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years;  if  under  that  age,  or  if 
insane  or  incompetent,  upon  the  application  of  a  relative  or  friend. 

2.  If  the  infant,  insane,  or  incompetent  person,  be  defendant,  the  appoint- 
ment must  be  made  at  the  time  the  summons  is  returned,  or  before  the 
answer,  upon  the  application  of  the  infant,  if  he  be  of  the  age  of  fourteen 
years  and  apply  at  or  before  the  summons  is  returned;  if  he  be  under  the 
age  of  fourteen,  or  be  insane  or  incompetent,  or  neglect  so  to  apply,  then 
upon  the  application  of  a  relative  or  friend,  or  any  other  party  to  the  action, 
or  by  the  justice  on  his  own  motion. 

Guardians.    Compare  ante,  §§  372,  373. 

Legislation  §  843.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  539,  which  read:  "When 
a  guardian  is  necessary,  he  shall  be  appointed 
by  the  justice  as  follows:  1st.  If  the  infant  be 
plaintiff,  the  appointment  shall  be  made  before 
the  summons  is  issued,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years 
or  upwards;  if  under  that  age,  upou  tlie  applica- 


tion of  some  relative  or  friend.  The  consent  in 
writing  of  tlie  guardian  to  be  appointed,  and  to 
be  responsible  for  costs,  if  he  fail  in  the  action, 
shall  be  first  filed  with  the  justice.  2d.  If  the 
infant  be  defendant,  the  guardian  shall  be  ap- 
pointed at  the  time  the  summons  is  returned,  or 
before  the  pleadings.  It  shall  be  the  right  of  the 
infant  to  nominate  his  own  guardian,  if  the  in- 
fant be  over  fourteen  years  of  age,  and  the  pro- 
posed  guardian   be   present   and   consent    in   writ- 


§844 


MANNER  OF  COMMENCING  ACTIONS  IN   JUSTICES'   COURTS. 


982 


to  be  appointed.  Otherwise,  the  justice  may 
appoint  any  suitable  person  who  gives  such  con- 
sent." Wlien  §  843  was  enacted  in  1872,  (1)  in 
ntroductory  paragraph,  "shall"  was  changed  to 
'must":  (2)  in  subd.  1,  (a)  "be"  was  changed 
o  "is,"  before  "plaintiff"  and  before  "of  the 
age,"  (b)  "shall"  was  changed  to  "must,"  in  both 
nstances,  and  (c)  in  last  sentence  the  words  "to 
act  as  such"  were  added;  (3)  in  subd.  2,  (a) 
'be"  was  changed  to  "is"  before  "defendant." 
before  "over,"  and  before  "present,"  and  (b) 
'shall  be"  was  changed  to  "is"  before  "the 
right." 

2.  Amended  by  Code  Amdts.  1873-74,  p. .333, 
to  read:  "When  an  infant  is  a  party,  he  must  ap- 


pear either  by  his  general  guardian,  if  he  have 
one,  or  by  a  guardian  appointed  by  the  .iustice 
as  follows:  One.  If  the  infant  be  plaintiff,  the 
appointment  must  be  made  before  the  summons 
is  issued,-  upon  the  application  of  the  infant,  if 
he  be  of  the  age  of  fourteen  years;  if  under  that 
age,  upon  the  application  of  a  relative  or  friend. 
Two.  If  the  infant  be  defendant,  the  guardian 
must  be  appointed  at  the  time  the  summons  is 
returned,  or  before  the  answer.  It  is  the  right 
of  the  infant  to  nominate  his  own  guardian,  if 
the  infant  be  over  fourteen  years  of  age;  other- 
wise the  justice  must  make  the  appointment." 
3.   Amended  by  Code  Amdts.   1880,  p.  18. 


§  844.  Summons,  how  issued,  directed,  and  what  to  contain.  Tlie  sum- 
mons most  be  directed  to  the  defendant,  signed  by  the  justice,  and  must 
contain : 

1.  The  title  of  the  court,  name  of  the  county,  city  and  county,  or  town- 
ship in  wliich  the  action  is  brought,  and  the  names  of  the  parties  thereto; 

2.  A  direction  that  the  defendant  appear  and  answer  before  the  justice, 
at  his  office,  as  specified  in  section  eight  hundred  and  forty-five  of  this  code; 

3.  A  notice  that  unless  the  defendant  so  appear  and  answer,  the  plaintiff 
will  take  judgment  for  any  money  or  damages  demanded  in  the  complaint, 
as  arising  upon  contract,  or  will  apply  to  the  court  for  the  relief  demanded 
in  the  complaint.  If  the  plaintiff  appears  by  attorney,  the  name  of  the 
attorney  must  be  indorsed  upon  the  summons. 

Issuance  of  summons.  The  justices'  clerk 
of  the  city  and  county  of  San  Francisco 
may  issue  a  summons  upon  the  order  of  the 
presiding  justice.  Helms  v.  Dunne,  107  Cal. 
117;  40Pac.  100. 

Mistake  in  name.  A  mistake  in  a  sum- 
mons, as  to  the  name  of  the  particular  per- 
son who  was  at  the  time  presiding  justice 
of  the  justices'  court,  does  not  present,  in 
any  way,  a  jurisdictional  question.  Helms 
V.  Dunne,  107  Cal.  117;  40  Pac.  100. 

Summons,  who  may  sign.  The  rule  de- 
clared in  this  section,  regarding  the  proper 
party  to  sign  a  summons  in  the  justice's 
court  of  the  city  and  county  of  San  Fran- 
cisco, is  modified  by  §  91,  ante.  Helms  v. 
Dunne,  107  Cal.  117;  40  Pac.  100. 

Name  of  plaintiff  in  summons.  A  sum- 
mons, in  an  action  under  this  section, 
which  does  not  contain  the  name  of  the 
plaintiff,  is  fatally  defective.  Tucker  v. 
Justice's  Court,  120  Cal.  512;  52  Pac.  SOS. 

Notice  to  defendant  in  summons.  The 
summons  in  cases  arising  in  superior  courts 
is,  in  substance,  the  same  as  those  issued 
from  justices'  courts:  each  is  required  to 
contain  the  same  notice  to  the  defendant; 
viz.,  in  cases  arising  on  contract  for  the 
recovery  of  money  or  damages  only,  that, 
if  the  defendant  fail  to  answer,  judgment 
will  be  taken  against  him  for  the  sum 
claimed,  stating  it;  in  other  actions,  that, 
unless  the  defendant  so  appear  and  an- 
swer, the  plaintiff  will  apply  to  the 
court  for  the  relief  demanded.  Keybers  v. 
McConibor,  07  Cal.  .397;  7  Pac.  838. 

Surplusage  in  summons,  effect  of.  Only 
those  recitals  in  the  summons  which  the 
law  requires  to  be  recited  therein,  are  evi- 


Contents  of  summons.    Compare  ante,  §  407. 

Legislation  §  844.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  540,  which  read:  "The 
summons  shall  be  addressed  to  the  defendant  by 
name,  or  if  his  name  be  unknown,  by  a  fictitious 
name:  and  shall  summon  him  to  appear  before 
the  justice  at  his  office,  naming  its  township  or 
city,  and  at  a  time  specified  therein,  to  answer 
the  complaint  of  the  plaintiff,  for  a  cause  of  ac- 
tion therein  described  in  general  terms,  sufficient 
to  apprise  the  defendant  of  the  nature  of  the 
claim  against  him;  and  in  action  for  money  or 
damages,  shall  state  the  amount  for  which  the 
plaintiff  will  take  judgment,  if  the  defendant  fail 
to  appear  and  answer.  It  shall  be  subscribed  by 
the  justice  before  whom  it  is  returnable."  When 
enacted  in  1872,  §  844  read:  "The  summons  must 
be  directed  to  the  defendant  and  signed  by  the 
justice,  and  must  contain:  1.  The  title  of  the 
court,  name  of  the  county  and  city,  or  township, 
in  which  the  action  is  commenced,  and  the  names 
of  the  parties  thereto;  2.  A  sufficient  statement 
of  the  cause  of  action,  in  general  terms,  to  ap- 
prise the  defendant  of  the  nature  of  the  claim 
against  him;  3.  A  direction  that  the  defendant 
appear  and  answer  before  the  justice,  at  his  office, 
at  a  time  specified  in  the  summons;  4.  In  an 
action  arising  on  a  contract,  for  the  recovery  of 
money  or  damages  only,  a  notice  that  unless  the 
defendant  so  appears  and  answers  the  plaintiff 
will  take  judgment  for  the  sum  claimed  by  him 
(stating  itl;  5.  In  other  actions,  a  notice  that 
unless  defendant  so  appears  and  answers  the 
plaintiff  will  apply  to  the  court  for  the  relief 
demanded.  If  the  plaintiff  has  appeared  by  at- 
torney, the  name  of  the  attorney  must  be  in- 
dorsed  on   the    summons." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  98, 
(1)  substituting  "as  specified  in  section  eight 
hundred  and  forty-five"  for  "at  a  time  specified 
in  the  summons,"  in  the  third  subdivision,  (2) 
in  subds.  4  and  5,  changing  "appears"  to  "ap- 
pear" and  "answers"  to  "answer,"  and  (3) 
changing  "on"  to  "upon"  in  subd.  5. 

3.  Amended  by  Code  Amdts.  1880,  p.  19, 
adding  "of  this  code"   at  end  of  subd.   3. 

4.  Amended  by  Stats.  1899,  p.  100,  and  be- 
came a  law,  under  constitutional  provision,  with- 
out  governor's  approval. 

5.  Amendment  by  Stats.  1901,  p.  167;  un- 
constitutional.    See  note  ante,  §  5, 


983 


SUMMONS — DEFENDANT   TO  APPEAR   WUEN — WAIVER. 


§845 


denee  of  tlicir  truth;  recitals  of  matters  of 
mere  surplusage  prove  nothing;  recitals  of 
matters  which  are  not  subject  to  the  statu- 
tory requirements  are  not  conclusive  as  to 
the  facts  recited.  Helms  v.  Dunne,  1U7  Cal. 
117;  40  I'ac.  l()(l. 

Service  of  summons.  .Turisdiction  of  the 
person  of  the  defendant  is  gained,  botii  in 
superior  courts  and  in  justices'  courts,  by 
service  of  summons.  Keybers  v.  McComber, 
67  Cal.  395;  7  Pac.  83S.  Where  summons 
was  issued  from  a  justice  of  the  peace 
against  defendants  by  a  firm  name,  and  the 
return  showed  service  on  a  part\'  not  shown 
by  the  record  to  be  in  any  way  connected 
with   the    defendants,    and   no    appearance 


was  made  for  them  on  the  return-day,  a 
judgment  rendered  against  them  is  void. 
Adams  &  Co.  v.  Town,  li  Cal.  247.  Where, 
in  an  action  in  the  justice's  court,  tiie  com- 
jdaint  was  filed  against  a  company,  but  a 
])art  of  the  name  of  such  comjjany  was 
omitted  therefrom,  and  the  service,  as 
shown  by  the  return,  was  on  a  member  of 
the  company,  with  the  name  therein  con- 
forming to  that  in  the  comjdaint,  an<l  the 
summons  was  addressed  to  and  a  default 
juilgment  was  rendered  against  the  com- 
pany by  its  correct  business  name,  the  court 
did  not  acquire  jurisdiction  of  the  com- 
pany, and  its  judgment  was  void.  King  v. 
Kandlett,  '.V.i  Cal.  318. 


§845.  Time  for  appearance  of  defendant.  The  time  specified  in  the 
summons  for  the  appearance  of  the  defendant  mu.st  be  as  follows: 

1.  If  an  order  of  arrest  is  indorsed  upon  the  summons,  forthwith; 

2.  In  all  other  cases,  within  five  days,  if  the  summons  is  served  in  the  city 
and  county,  township,  or  city,  in  which  the  action  is  brought;  within  ten 
days,  if  served  out  of  the  township  or  city,  but  in  the  county  in  which  the 
action  is  brought;  and  within  twenty  days,  if  served  elsewhere. 


Legislation  g  845.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  541,  as  amended  by 
Stats.  1867-08,  p.  551,  which  read:  "Tlie  time 
in  which  the  summons  shall  require  the  defend- 
ant to  appear  and  answer  the  complaint  shall  be 
as  follows:  First.  If  the  plaintiff  and  defendant 
reside  within  the  township  when  the  action  is 
brought,  within  ten  days  after  the  service  thereof. 
Second.  If  the  plaintiff  and  defendant  reside  out 
of  the  township  but  within  the  county  where  the 
action  is  brought,  within  five  days  after  the  ser- 
vice thereof.  Third.  If  the  plaintitT  reside  out 
of  the  township  where  the  action  is  brought  and 
the  defendant  resides  in  said  township,  within 
three  days  after  the  service  thereof.  Fourth.  If 
the  defendant  reside  out  of  the  county  or  town- 
ship in  which  the  action  is  brought  and  the  plain- 
tiff resides  in  said  township,  within  fifteen  days 
after  the  service  thereof.  The  defendant  may 
appear  in  the  action  by  demurrer  or  answer  at 
any  time  after  service  of  summons  upon  him,  and 
shall  notify  the  plaintiff,  by  written  notice,  of 
such  appearance.  If  any  of  the  defendants  shall 
fail  to  answer  or  appear  in  the  action  within  the 
time  prescribed  in  the  summons,  such  default 
shall  be  entered  by  the  justice  in  his  docket.  If 
all  of  the  defendants  shall  fail  to  appear  or  an- 
swer within  the  time  prescribed  in  the  summons, 
the  justice  shall  thereupon  enter  judgment  against 
them  for  the  amount  demanded  in  the  summons, 
where  the  action  is  brought  upon  a  contract  for 
the  direct  payment  of  money;  and  in  all  other 
cases  shall  hear  the  proofs,  and  give  judgment 
in  accordance  with  the  pleadings  and  proofs. 
Where  all  the  defendants  served  with  process 
shall  have  appeared,  or  some  of  them  have  ap- 
peared and  the  remaining  defendants  have  made 
default,  the  justice  may  proceed  to  try  the  cause, 
or,  tipon  good  cause  shown  by  either  party,  may 
fix  the  day  for  trial  on  any  subsequent  day  not 
more  than  ten  days  thereafter."  When  enacted 
in  1872,  §  845  read:  "The  time  specified  in  the 
summons  for  the  appearance  of  the  defendant 
must  be  as  follows:  1.  If  an  order  of  arrest  is 
indorsed  upon  the  summons,  forthwith;  2.  In  all 
other  cases,  not  less  than  three  nor  more  than 
twelve  days  from  its  date." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  407, 

(1)  adding  a  new  subd.  2.  reading,  "Second.  If 
the  defendant  is  not  a  resident  of  the  county  in 
which  the  action  is  brought,  not  less  than  twenty 
nor   more    than    thirty    days    from    its    date" ;    and 

(2)  subd.  2  renumbered  subd.   3. 

3.  Amended  by  Code  Amdts.  1875-76,  p.  99, 
(1)  in  subd.  1,  changing  "is"  to  "be"  and  "upon" 
to    "on,"    and    (2)    adding   a   new   subd.    2,    which 


replaced  subds.  2  and  3,  and  reading,  "In  all 
other  cases  the  summons  must  contain  a  direc- 
tion that  the  defendant  must  appear  and  answer 
the  complaint  within  five  days,  if  the  summons 
be  served  in  the  township  in  which  the  action  is 
brought:  within  ten  days,  if  served  out  of  the 
township  but  in  the  county  in  which  the  action 
IS  brought;  and  within  twenty  dav.s,  if  served 
elsewhere." 

•  '*•, -■\™*'"^P^  "'y  Code  Amdts.  1880,  p.  19  (1) 
in  subd.  1,  changing  "on"  to  "upon,"  and  ('^)  in 
subd.    2,     (a)     adding    "city    and    countv"    after 

served   in   the,'   and    (b)    adding   "or  city"   after 

township,      in   both   instances 

5.  Amendment  by  Stats.  1901,  p.  168-  un- 
constitutional.    See  note  ante    §5 

6.  Amended  by  Stats.  190'7,  p.  879;  the  code 
commissioner  saying,  "The  amendment  consists 
in  striking  out  the  words  'the  summons  must  con- 
tain a  direction  that  the  defendant  must  appear 
and  answer  the  complaint,"   formerly  in   subd.  2." 

Time  for  appearance.  Where  the  sum- 
mons is  served  where  the  action  is  brought, 
the  defendant  has  five  days  in  which  to  ap- 
pear and  answer.  Hall  v.  Justice's  Court. 
5Cal.  App.  133;S9Pao.  870. 

Return-day  of  summons.  Under  the 
Practice  Act,  the  summons  could  not  be 
made  returnable  more  than  ten  daVs  from 
its  date,  unless  publication  was  required. 
Hisler  v.  Carr,  34  Cal.  641.  The  justice 
cannot  make  the  summons  returnable  in 
eleven  days  from  its  date;  if  he  could,  he 
could  make  it  returnable  in  eleven  months; 
the  defendant,  as  well  as  the  plaintiff,  has 
an  interest  in  a  speedy  trial.  Deidesheimer 
V.  Brown,  8  Cal.  339;  Hisler  v.  Carr.  34 
Cal.  641. 

Appearance  as  waiver  of  rights.  Where 
the  defendant  appears  for  the  purpose  of 
making  a  proper  motion  to  dismiss  the  case 
because  the  summons  was  dated,  issued, 
and  served  more  than  ten  days  before  the 
return  thereof,  he  does  not  thereby  waive 
his  rights.  Deidesheimer  v.  Brown.  8  Cal. 
339. 


§§  846-848      MANNER  OF  COMMENCING  ACTIONS  IN   JUSTICES*   COURTS.  984 

Time   for    appearance    in   Justice's    court.     See  proper   return-day.      For    decisions    rendered    un- 

note  40  Am.  Dec.  177.  der   the   old   practice,    as   to   service   of   summons, 

^/^T>•n    nr^-^imirTcc-rf^-KT-rfnc,    vrnm-n       rr,T.  •  i.  sse   Deidesheimer   V.   Browu,    8    Cal.    339;    Seaver 

CODE    COMMISSIONERS'    NOTE.      This    sub-  ^     Fitzgerald,    23    Cal.    85;    Hisler    v.    Carr,     34 

stitutes  a  plain  and  simple  rule  as  to  the  return-  (,^j      g^^       See  §§412,     413,     ante,     and     notes. 

day    of    the    summons.      Under    the    old    practice,  Sections    405    to    416,    inclusive,    and    the    notes 

the  rules   relating  thereto  were   exceedingly   ditfi-  thereto,     are     applicable    to    justices'     courts,     so 

cult  of  application.      The  justice  may,  within  the  f^j.   ^^    relates    to    the   service   and   return   of    the 

limits  iixed   by   the  rule,   determine,   from  the  pe-  „„vr,v,,,,^c 

,-  ■  .  ii  1-  1  J,  is  Ll  111  III  Olio. 

culiar    circumstances     attending    each     case,     the 

§  846.  Alias  summons.  If  the  summons  is  returned  without  being  served 
upon  any  or  all  of  the  defendants,  the  justice,  upon  the  demand  of  the  plain- 
tiff, may  issue  an  alias  summons,  in  the  same  form  as  the  original,  except 
that  he  may  fix  the  time  for  the  appearance  of  the  defendant  at  a  period 
not  to  exceed  ninety  days  from  its  date. 

Alias  summons,  generally.   Ante,  §  408.  the   summons   fails   to   state   definitely   the 

Legislation  §  846.     Enacted  March  11,  1873.  nature    of    the    cause    of    action,    and    does 

CoUateral  attack  on  alias  summons.     An  ^^^   notify  the   defendant   to   appear  and 

objection  to  the  regularity  of  the  issuance  a^^^e''  ^t  the   ofiice  of  the  justice     Core 

of   an    alias    summons,    in    an    action    in    a  I^.^^^f  "'^^/^  ^^^-  ^^^'   ^  ^^"^^  ^*-  ^"P" 

justice's   court,   is   not   jurisdictional,    and  '               •        • 

cannot   be   taken   advantage    of   in   a    col-  CODE   COMMISSIONERS'  NOTE.     The  main 

lateral   attack;    and    a   judgment,   in   such  object  of  this  section  is  to  enable  service  to  be 

-,          ',  ,        1    ,.       ,^      ..J.                              1  made    by    publication,    in    the    mode    and    manner 

court,  rendered  by  default  after  a  personal  provided  for  in  title  V,  part  II,   of  this   code. 

service  of  summons,  is  not  void,  although  See  note  to  §  845. 

§  847.  Same.  The  justice  may,  within  a  year  from  the  date  of  the  filing 
of  the  complaint,  issue  as  many  alias  summons  as  may  be  demanded  by  the 
plaintiff. 

Alias  summons.    Ante,  §  408.  CODE    COMMISSIONERS'    NOTE.     See    note 

Legislation  §  847.     Enacted  March  11,   1872.         to  §  845. 

§  848.  Service  of  summons  outside  of  county.  The  summons  cannot  be 
serv^ed  out  of  the  county  wherein  the  action  is  brought,  except  in  the  fol- 
lowing cases : 

1.  When  the  action  is  upon  the  joint  contract  or  obligation  of  two  or 
more  persons,  one  of  whom  resides  within  the  county ; 

2.  When  the  action  is  brought  against  a  party  who  has  contracted  in 
writing  to  perform  an  obligation  at  a  particular  place,  and  resides  in  a 
different  county,  in  which  case  the  summons  may  be  served  in  the  county 
where  he  resides ; 

3.  When  the  action  is  for  injury  to  person  or  property,  and  the  defend- 
ant resides  in  a  different  county,  in  which  case  summons  may  be  served  in 
the  county  wherein  he  may  be  found ; 

4.  In  all  cases  where  the  defendant  was  a  resident  of  the  county  when 
the  action  was  brought,  or  when  the  obligation  was  incurred,  and  there- 
after departed  therefrom,  in  which  event  he  may  be  served  wherever  he 
may  be  found ; 

5.  In  actions  of  forcible  entry  and  detainer,  or  to  enforce  and  foreclose 
liens  on,  or  to  recover  possession  of,  personal  property  situate  within  the 
county. 

Process    of   justices'    courts,    extent   of.     Ante,  upon    a    joint    contract    or   obligation    of    two    or 

§§  94,  106.  more    persons    who    reside    in    different    counties, 

and   the   summons   has   been   served   upon   the    de- 
Legislation  8  848.     1.  Enacted  March  11,  1873,  fendant  resident  of  the  county,  in  which  case  the 
and   then  read:    "The   summons   cannot   be   served  summons   may   be    served   upon   the   other   defend- 
within  two  days  of  the  time  fixed  therein  for  the  ants  out  of  the   county,   and   except  also  when   an 
'    appearance  of  the  defendant."  action    is   brought    against   a   party   who   has    con- 
2.    Amended  by  Code  Amdts.  1873-74,  p.  333,  tracted    to   perform   an   obligation   at    a   particular 
to   read:    "The   summons   cannot  be   served   out   of  place,  and  resides  in  a  different  county,   in  which 
the  county  of  the  justice  before  whom   the  action  case  summons  may  be  served  in  the  county  where 
is   brought,   except   where    the   action   is    brought  he   resides.     When   the   defendant   resides   in  the 


9S5 


SUMMONS — SERVICE  BY  WHOM,  AND  HOW  MADE — RETURN. 


§849 


county,  the  summons  cannot  be  served  within  two 
days  of  the  time  fixed  for  the  appearance  of  the 
defendant:  when  he  resides  out  nf  the  county, 
and  the  summons  is  served  out  of  the  county,  the 
summons  cannot  be  served  within  twenty  days  of 
Buch   time." 

3.  Amended  by  Code  Amdts.  1875-76,  p.  99. 
(1)  changing  "where"  to  "when"  before  "the  ac- 
tion is  brought";  (2)  changing  "defendants"  to 
"defendant"  before  "out  of  the  county";  and 
(3)  striking  out  the  sentence  beginning  "When 
the  <lefendant,"  and  adding  a  third  exception, 
reading,  "and  except,  also,  where  an  action  is 
brought  for  injury  to  person  or  property,  and  the 
defendant  resides  in  a  different  county,  in  which 
case  summons  may  ho.  served  in  the  county  wliere 
the  defendant   resides." 

4.  Amendment  by  Stats.  1901,  p.  1G8;  un- 
constitutional.    See  note  ante.  §  5. 

5.  Amended  by  Stats.  1907,  p.  879;  the  code 
commissioner  saying,  "The  amendment  consists  in 
recasting  the  form  of  the  section,  and  changing 
the  matter  covered  by  subd.  2,  so  as  to  substi- 
tute for  the  words  'the  county  where  he  resides,' 
the  words  'any  county  wherein  he  may  be  found.' 
The  matter  covered  by  subds.  4  and  r>  in  the  new 
form  of   section    is   entirely  new  matter." 

6.  Amended  by  Stats.  1909,  p.  355,  in  subd. 
4  adding  the  words  "or  when  the  obligation  was 
incurred,"    this  being  the   only  change. 

Construction  of  section.  This  seetion 
contains  exceptions  to  the  general  rule, 
that  a  summons  cannot  be  served  out  of 
the  county  of  the  justice  before  whom  the 
action  is  brought;  there  is  no  repugnancy 
between  the  first  exception  in  this  section, 
and  §  106,  ante,  and  the  seventh  subdi- 
vision of  §  832,  ante;  repeals  by  implica- 
tion are  not  favored,  and  there  is  nothing 
to  support  the  implication  that  this  sec- 
tion and  §  849.  post,  were  repealed  by  the 
amendment  of  §  106,  ante,  in  1880.  Cole  v. 
Fisher,  66  Cal.  441;  5  Pac.  915. 

Contract  in  writing,  service  of  summons. 
The  summons  from  a  justice's  court  can- 
not be  served  outside  of  the  count}-  in 
which  the  action  is  brought,  where  the 
complaint  shows  jurisdiction  of  the  sub- 
ject-matter, but  fails  to  allege  that  the 
contract  sued  on  is  in  writing.  Olcese  v. 
Justice's  Court,  156  Cal.  82;   103  Pac.  317. 


Service  of  summons  outside  of  the  county 
can  be  made  only  in  an  action  basoii  upon 
a  written  contract.  Newman  v.  Burnet, 
16.1  Cal.  42:?;  132  Pac.  r.SS. 

Burden  of  proving  improper  service  of 
summons.  A  justice  of  the  peace  has  ju- 
risdiction to  entertain  a  motion  of  a  de- 
fendant to  set  aside  the  service  of  a 
summons  attempted  to  be  made  upon  him 
in  a  county  other  than  that  in  which  the 
action  was  jiending,  and  tlie  motion  is 
properly  made  upon  aflidavits  showing  the 
grounds  of  the  motion;  and,  upon  such 
motion,  the  fact  that  an  unverified  com- 
plaint was  filed  in  the  action,  alleging  that 
the  contract  sued  upon  was  to  be  per- 
formed by  the  defendant  therein  in  the 
county  in  which  the  action  was  brought, 
does  not  foreclose  all  inquiry  as  to  the 
fact,  nor  deprive  the  justice  of  jurisdiction 
to  pass  upon  the  truth  of  the  allegation; 
the  burden  of  i>roving  improjier  service  of 
summons  in  such  action  is  on  the  defend- 
ant, and  he  is  required  to  present  a  clear 
case.  History  Co.  v.  Light,  97  Cal.  56;  31 
Pac.  627. 

Waiver  of  objection  to  want  of  jurisdic- 
tion. Where  the  defendants,  in  an  action 
in  a  justice's  court,  which  is  personal  in 
its  nature,  move  for  a  dismissal  on  the 
ground  that  the  court  has  no  jurisdiction 
to  try  the  cause,  their  subsequent  with- 
drawal of  the  motion  and  consent  to  trial 
on  the  merits  is  a  waiver  of  the  objection 
to  the  want  of  jurisdiction.  Luco  v.  Su- 
perior Court,  71  Cal.  555;  12  Pac.  677. 

Motion  to  quash  service.  Where  im- 
proper issue  of  summons,  or  improper  ser- 
vice thereof,  appears,  the  remedy  is  by 
motion  to  quash  the  service.  Burge  v.  Jus- 
tice's Court,  11  Cal.  App.  213;  104  Pac.  581. 

CODE    COMMISSIONERS'    NOTE.    See    note 

to  §  845. 


§  849.  Summons,  by  whom  and  how  served  and  returned.  The  summons 
may  be  served  by  a  sheriff  or  constable  of  any  of  the  counties  of  this  state 
or  by  any  other  person  of  the  age  of  eighteen  years  or  over  not  a  party  to 
the  action.  When  a  summons  issued  by  a  justice  of  peace  is  to  be  served 
out  of  the  county  in  which  it  is  issued  the  summons  must  have  attaclied  to 
it  a  certificate  under  seal  by  the  county  clerk  of  such  county  to  the  effect 
that  the  person  issuing  the  same  was  an  acting  justice  of  the  peace  at  the 
date  of  the  summons  and  must  be  served  and  returned  as  provided  in  title 
five,  part  two  of  the  code,  or  it  may  be  served  by  publication  and  sections 
four  hundred  and  thirteen  and  four  hundred  and  twelve  so  far  as  they  re- 
late to  the  publication  of  summons  are  made  applicable  to  justices  courts, 
the  word  justice  being  substituted  for  the  word  judge  wherever  the  latter 
word  occurs. 


Act  superseded.  Act  of  Stats.  1875-76,  p.  85.5, 
relating  to  the  service  of  summons  in  justice's 
court  in  San  Francisco,  superseded  by  this  sec- 
tion. 

Publication,  service  by.    Ante,  §§  412,  413. 

Legislation  §  849.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  542,  §  613  as  amended 


by  Stats.  1865-66,  p.  467,  and  §  614),  and  then 
read:  "The  summons  may  be  served  by  a  sheriff 
or  constalile  of  the  county,  or  by  any  male  resi- 
dent of  the  county  over  twenty-one  years  of  aixe, 
not  a  party  to  the  suit,  and  must  be  served  and 
returned  as  prescribed  in  Title  V.  Part  II,  of  this 
code;    or  it   may   be    served   by   publicatioc;    and 


§850 


MANNER  OF  COMMENCING  ACTIONS  IN   JUSTICES'  COURTS. 


986 


sections  413  and  412,  so  far  as  they  relate  to  the 
publication  of  summons,  are  made  applicable  to 
justices'  courts,  the  word  'justice'  being  substi- 
tuted for  the  word  'judge,'  wherever  the  latter 
word   occurs." 

2.  Amended  by  Code  Admts.  1873-74,  p.  407, 
to  read:  "The  summons  may  be  served  by  a  sher- 
iff or  constable  of  any  of  the  counties  of  this 
state;  provided,  that  when  a  summons,  issued  by 
a  justice  of  the  peace,  is  to  be  served  out  of  the 
county  in  which  it  was  issued,  the  summons  shall 
have  attached  to  it  a  certificate  under  seal  by 
the  county  clerk  of  such  county,  to  the  effect  that 
the  person  issuing  the  same  was  an  acting  jus- 
tice of  the  peace  at  the  date  of  the  summons,  or 
the  summons  may  be  served  by  any  male  resi- 
dent, over  the  age  of  twenty-one  years,  not  a  party 
to  the  suit,  within  the  county  where  the  action  is 
brought,  and  must  be  served  and  returned,  as 
provided  in  Title  Five,  Part  Two,  of  this  code, 
or  it  may  be  served  by  publication;  and  sections 
four  hundred  and  thirteen  and  four  hundred  and 
twelve,  so  far  as  they  relate  to  the  publication  of 
summons,  are  made  applicable  to  justices'  courts, 
the  word  'justice'  being  substituted  for  the  word 
'judge,'   whenever  the   latter  word  occurs." 

3.  Amended  by   Stats.    1891.   p.    .51,    changing 

(1)  "twenty-one"    to    "eighteen"    after    "age    of," 

(2)  "justices'"  to  "justice's."  and  (3)  "when- 
ever"  to   "wherever"    in   last   line. 

4.  Amendment  by  Stats.  1901,  p.  168;  un- 
constitutional.    See  note  ante,  §  .5. 

5.  Amended  by   Stats.   1905.  p.  27. 

Service  of  summons  includes  ser'vice  of 
complaint.  Jurisdiction  of  the  person  of 
a  sole  defendant  in  a  justice's  court  is 
obtained  by  service  of  the  summons  and 
a  copy  of  the  complaint;  the  legal  service 
of  the  summons  includes,  as  a  necessary 
part  of  such  service,  service  of  the  com- 
plaint. Southern  Pacific  E.  E.  Co.  v.  Su- 
perior Court,  59  Cal.  471. 

Proof  of  service  of  summons  sufficient 
when.  Wh'ile  justices'  courts  are  inferior 
courts  of  limited  jurisdiction,  and  their 
jurisdiction  must  affirmatively  appear,  or 
their  judgments  will  be  absolutely  void, 
and  while  no  intendments  can  be  indulged 
in  favor  of  the  jurisdiction  of  such  courts, 
yet,  within  these  rules,  the  return  of  ser- 
vice of  summons  aad  complaint  on  the 
defendant  is  proved,  and  sustains  the  judg- 
ment, where  the  officer  certifies  that  he 
"served  the  within  summons  by  delivering 
a  copy  thereof,  together  with  a  true  copy 

§  850.  Notice  of  hearing.  Form.  Service.  Service  by  mail.  Docket 
entries.  "When  all  the  parties  served  with  process  shall  have  appeared,  or 
some  of  them  have  appeared,  and  the  remainins;  defendants  have  made  de- 
fault, the  justice  must  fix  the  day  for  the  trial  of  said  cause,  whether  the 
issue  is  one  of  law  or  fact,  and  give  notice  thereof  to  the  parties  to  the 
action  who  have  appeared,  but  in  case  any  of  the  parties  are  represented 
by  an  attorney,  then  to  such  attorney.  Such  notice  shall  be  in  writing, 
signed  by  the  justice,  and  substantially  in  the  following  form  (filling 
blanks  according  to  the  facts)  : 
In  the  justice  court,  township  (or  citj^  or  city  and  county),  county, 

or  city  and  county  of  state  of  California  plaintiff,  vs.  

defendant. 
To ,  plaintiff,  or attorney  for  plaintiff,  and  to defendant,  or, 


of  the  complaint,  personally,"  giving  the 
name  of  the  township  and  county,  and 
the  date,  with  the  signature  of  the  officer, 
although  failing  to  state  upon  whom  the 
summons  was  served  or  to  whom  the  copies 
were  delivered,  or  that  the  copy  of  the 
complaint  delivered  was  a  copy  of  that  in 
the  action,  or  that  the  service  was  per- 
sonal.  Cardwell  v.  Sabichi,  59  Cal.  490. 

County  clerk's  certificate  necessary. 
Without  the  county  clerk's  certificate,  no 
valid  service  of  the  summons  can  be  made 
out  of  the  county.  Ferguson  v.  Basin  Con- 
solidated Mines,  152  Cal.  712;  93  Pac.  867. 

Publication  of  summons.  To  entitle  the 
plaintiff  in  a  justice's  court  to  have  the 
summons  served  by  publication,  he  must 
make  and  file  with  the  justice  the  affi- 
davit required  by  law,  which  must  show 
that  a  cause  of  action  exists  in  his  favor, 
against  the  defendant.  Hisler  v.  Carr,  34 
Cal.  641.  A  summons  in  a  justice's  court, 
where  it  is  required  to  be  published,  may 
be  made  returnable  more  than  ten  days 
from  its  date.  Seaver  v.  Fitzgerald,  23 
Cal.  85;  Hisler  v.  Carr,  34  Cal.  641.  An 
order  of  publication  of  summons,  made  by 
a  justice,  need  not  state  that  the  paper 
designated  is  the  one  "most  likely  to  give 
notide  to  the  person  to  be  served."  Seaver 
V.  Fitzgerald,  23  Cal.  85. 

Proof  of  service  by  publication.  The 
publication  of  summons  issued  by  a  notice 
may  be  proved  by  the  affidavit  of  the 
principal  clerk  of  the  publishers  of  the 
newspaper,  and  the  fact  that  a  copy  of 
the  summons  had  been  duly  deposited  in 
the  post-office,  properly  directed,  may  be 
proved  by  the  affidavit  of  a  competent 
witness:  a  return  of  such  facts,  indorsed 
upon  the  summons  by  a  constable  or  the 
sheriff,  is  not  necessary.  Seaver  v.  Fitz- 
gerald, 23  Cal.  85. 

CODE  COMMISSIONERS'  NOTE.  Constables 
mav  appoint  deputies.  Taylor  v.  Brown,  4  Cal. 
188  ;  60  Am.  Dec.  604.     See  note  to  §  845,  ante. 


attorney  for  defendant. 

You  and  each  of  you  will  please  take  notice  that  the  undersigned  justice 
of  the  peace  before  whom  the  above-entitled  cause  is  pending,  has  set  for 


987 


NOTICE  OF   HEARING — SERVICE,  BY  MAIL,   ETC. — ENTRY. 


§850 


hearing  the  demurrer  of ,  filed  in  said  cause  (or  has  set  the  said  cause 

for  trial,  as  the  case  may  ])e),  bei'ort!  me  at  my  office  in  said  townsliip   (or 

city,  or  city  and  county),  at  o'clock  —  m.,  on  the  day  of  , 

19—. 


Dated  this 


day  of ,  19- 


(Si«j:ned)  Justice  of  the  peace. 

Said  notice  shall  be  served  by  mail  or  personalh'.  When  served  by  mail 
the  justice  of  the  peace  shall  deposit  copies  thereof  in  a  sealed  envelope  in 
the  post-office  at  least  ten  days  before  the  trial  or  hearing  addressed  to 
each  of  the  persons  on  whom  it  is  to  be  served  at  their  place  of  residence 
and  the  postage  prepaid  thereon;  provided,  that  such  notice  shall  be  served 
by  mail  only  when  the  person  on  whom  service  is  to  be  made,  resides  out 
of  the  county  in  which  said  justice's  court  is  situated,  or  is  absent  there- 
from. When  personally  served  said  notice  shall  be  served  at  least  five  days 
before  the  trial  or  hearing  on  the  persons  on  whom  it  is  to  be  served  by  any 
person  competent  and  qualified  to  serve  a  summons  in  a  justice's  court,  and 
when  personally  served  it  shall  be  served,  returned  and  filed  in  like  manner 
as  a  summons.  When  a  party  has  appeared  by  attorney  the  notice  may  be 
served  in  the  manner  prescribed  by  subdivision  one  of  section  one  thousand 
and  eleven  of  this  code.  The  justice  shall  enter  on  his  docket  the  date  of 
trial  or  hearing;  and  when  such  notice  shall  have  been  served  by  mail  the 
justice  shall  enter  on  his  docket  the  date  of  mailing  such  notice,  of  trial 
or  hearing  and  such  entry  shall  be  prima  facie  evidence  of  the  fact  of  such 
service.  The  parties  are  entitled  to  one  hour  in  which  to  appear  after  the 
time  fixed  in  said  notice,  but  are  not  bound  to  remain  longer  than  that 
time  unless  both  parties  have  appeared  and  the  justice  being  present  is 
engaged  in  the  trial  of  another  cause. 


Time  of  trial.    Post,  §§  873  et  seq. 

Legislation  §  850.  1.  Enacted  March  11,  1873, 
and  then  read:  "§850.  The  parties  are  entitled  to 
one  hour  in  which  to  appear  after  the  time  ti.xed  in 
the  summons,  but  are  not  bound  to  remain  longer 
than  that  time,  unless  both  parties  have  appeared, 
and  the  justice  being  present  is  engaged  in  the 
trial  of   another   cause." 

3.   Amended  by  Code  Amdts.  1875-76,  p.  99, 

(1)  adding  a  new  sentence  at  beginning  of  sec- 
tion, reading,  "When  all  the  parties  served  with 
process  shall  have  appeared,  or  some  of  them 
have  appeared,  and  the  remaining  defendants 
have  made  default,  the  justice  must  fix  a  day  for 
the  trial  of  said  cause,  and  notify  the  plaintiff. 
and  the  defendants  who  have  appeared,  thereof"  ; 
and  (2)  substituting  "said  notice"  for  "sum- 
mons." 

3.  Amended  by  Stats.  1901,  p.  598,  (1)  the 
first  sentence  then  reading,  "When  all  the  par- 
ties served  with  process  shall  have  appeared,  or 
some  of  them  have  appeared,  and  the  remaining 
defendants  have  made  default,  the  justice  must 
fix  the  day  for  the  trial  of  said  cause,  whether 
the  issue  is  one  of  law  or  fact,  and  give  notice 
thereof  to  the  plaintiff  and  the  defendants  who 
have  appeared,  but  in  case  any  of  the  parties  are 
represented  by  an  attorney,  then  to  such  attor- 
ney. Such  notice  shall  be  in  writing,  signed  by 
the  justice,  and  substantially  in  the  following 
form     (filling    blanks    according    to    the    facts)"; 

(2)  the  blank  form  reading  the  same  as  the  pres- 
ent amendment  (1913);  (3)  the  first  sentence  of 
the  final  paragraph  then  reading,  "Said  notice 
shall  be  served  by  any  person  competent  and 
Qualified  to  serve  a  summons  in  a  justice's  court, 
and  shall  be  served,  returned,  and  filed  in  like 
manner  as  a  summons;  and  the  justice  shall  en- 
ter on  his  docket  the  date  of  giving  notice  of 
trial  or  hearing,  and  date  of  trial  or  hearing,  and 
the   time   of  its  return,    and   by   whom  and   how 


served";  (4)  the  final  paragraph  then  having 
only  two  sentences,  the  second  being  exactly  the 
same  as  the  final  sentence  of  the  present  amend- 
ment  (1913). 

4.  Amended  by  Stats.  1905.  p.  33.  (1)  in 
first  sentence,  (a)  after  the  section  number,  add- 
ing a  section  title.  "Notice  of  hearing."  and  (b) 
substituting  "parties  to  the  action"  for  "plaintiff 
and  the  defendants";  (2)  changing  the  first  part 
of  the  final  paragraph  to  read:  "Said  notice  shall 
be  served  by  mail  or  personally.  When  served 
by  mail  the  justice  of  the  peace  shall  deposit 
copies  thereof  in  a  sealed  envelope  in  the  post- 
office  at  least  ten  days  before  the  trial  or  hear- 
ing addressed  to  each  of  the  persons  on  whom  it 
is  to  be  served  at  their  place  of  residence  and 
the  postpage  prepaid  thereon;  provided  that  such 
notice  shall  be  served  by  mail  only  when  the  at- 
torney [sic]  on  whom  service  is  to  be  made,  re- 
sides out  of  the  county  in  which  said  justice's 
court  is  situated.  When  personally  served  said 
notice  shall  be  served  at  least  five  days  before 
the  trial  or  hearing  on  the  persons  on  whom  it 
is  to  be  served  by  any  person  competent  and 
qualified  to  serve  a  summons  in  a  justice's  court 
and  when  personally  served  it  shall  be  served,  re- 
turned and  filed  in  like  manner  as  a  summons"  ; 
(3)  the  final  sentence  of  this  paragraph  not  being 
changed. 

5.  Amended  by  Stats.  1909,  p.  968.  (1)  in 
first  sentence,  striking  out  the  section  title  in- 
serted in  1905;  (2)  in  the  proviso  in  the  final 
paragraph,  (a)  substituting  "person"  for  "attor- 
ney," and  (b)  at  the  end  of  the  proviso,  adding 
"or   is   absent    therefrom." 

6.  Amended  by  Stats.  1913,  p.  234,  adding 
a  new  sentence  in  the  final  paragraph,  beginning 
"When   a  party  has  appeared." 

Trial  of  issue  of  law  or  fact.  The  pro- 
visions of  this  section  have  reference  only 


§850 


MANNER  OF  COMMENCING  ACTIONS  IN   JUSTICES'   COURTS. 


988 


to  such  trial  as  is  authorized  by  the  nature 
of  the  appearance;  and  if,  by  such  appear- 
ance, ouh^  an  issue  of  law  is  presented, 
there  can  be  a  trial  of  only  such  issue,  and 
a  trial  of  fact  cannot  be  had,  unless  an 
issue  of  fact  is  presented  after  the  trial 
and  disposition  of  the  issue  of  law.  Stew- 
art V.  Justice's  Court,  109  Cal.  616;  42  Pac. 
158. 

Fixing  day  for  trial.  Where  the  defend- 
ant files  a  demurrer  to  the  complaint,  and 
the  justice  fixes  the  following  day  for  the 
hearing  upon  the  demurrer,  there  is  no 
occasion  to  fix  any  day  for  the  trial,  other 
than  that  already  fixed,  there  being  no 
issue  of  fact  to  be  tried.  Stewart  v.  Jus- 
tice's Court,  109  Cal.  616;  42  Pac.  158. 

Notice  of  trial  necessary.  When  the 
party  served  with  process  has  appeared, 
he  is  entitled  to  notice  of  the  time  fixed 
by  the  justice  for  the  trial  of  the  cause; 
such  notice  is  imperative,  and  is  as  essen- 
tial to  the  authority  of  the  justice  to  pro- 
ceed upon  the  trial  of  the  case  as  is  the 
summons  and  return  of  the  service  thereof 
to  his  entering  judgment  by  default.  Elder 
V.  Justice's  Court,  136  Cal.  364;  68  Pac. 
1022;  Green  v.  Eogers,  18  Cal.  App.  572; 
123  Pac.  974;  Los  Angeles  v.  Young,  118 
Cal.  295;  62  Am.  St.  Rep.  234;  50  Pac.  534; 
Jones  V.  Justice's  Court,  97  Cal.  523;  32 
Pac.  575.  The  judgment  of  a  justice,  ren- 
dered upon  an  issue  of  fact  raised,  with- 
out giving  notice  of  the  trial,  is  void. 
Purcell  V.  Richardson,  164  Cal.  150;  128 
Pac.  31. 

Notice  must  be  in  writing.  The  notice 
of  the  day  fixed  for  the  trial  of  an  action 
in  a  justice's  court,  required  by  this  sec- 
tion to  be  given  to  the  parties  who  have 
appeared,  must  be  in  writing  and  form  a 
part  of  the  record,  and  there  must  be  an 
entry  thereof,  and  of  the  mode  in  which 
it  is  given,  in  the  justice's  docket,  in  order 
to  authorize  him  to  proceed  upon  the  trial 
of  the  case  and  render  a  judgment  therein. 
Jones  v.  Justice's  Court,  97  Cal.  523;  32 
Pac.  575;  Elder  v.  Justice's  Court,  136  Cal. 
364;  68  Pac.  1022.  The  notice  of  trial  can- 
not be  verbal,  and  cannot  be  waived  by  a 
conversation  over  the  telephone,  in  which 
the  attorney  for  the  defendant  consented 
to  the  setting  of  the  case.  Elder  v.  Jus- 
tice's Court,  136  Cal.  364;  68  Pac.  1022, 

Notice  to  attorney  sufficient.  Where  a 
defendant  has  been  served  with  summons 
and  has  appeared  by  his  attorney,  he  is 
suflSciently  notified  by  the  justice,  of  the 
time  and  place  of  trial,  under  this  section, 
where  the  attorney  receives  the  notice  as 
such,  and  he  notifies  the  defendant.  Grant 
V.  .Justice's  Court,  1  Cal.  App.  383:  82  Pac. 
263. 


Proof  of  notice.  While  it  is  not  neces- 
sary that  the  justice  shall  personally  serve 
the  notice  of  the  day  fixed  for  trial,  he 
ought  not  to  accept  the  verbal  statement 
of  the  plaintiff  that  notice  has  been  served 
upon  the  defendant.  Jones  v.  Justice's 
Court,  97  Cal.  523;  32  Pac.  575;  Elder  v. 
Justice's  Court,  136  Cal.  364;  68  Pac.  1022. 
A  mere  entry  in  the  justice's  docket,  that 
the  plaintiff's  attorney  filed  affidavits  of 
service  of  notice  of  trial  is  not  e\i(k'))('e 
that  they  containeil  proper  proof  that  the 
notice  had  been  given  to  the  defendant. 
.Jones  V.  Justice's  Court,  97  Cal.  523;  32 
Pac.  575. 

Waiver  of  notice.  Notice  of  trial  may 
be  waived  by  appearance,  not  by  a  con- 
versation over  the  telephone.  Elder  v.  Jus- 
tice's Court,  136  Cal.  364;  68  Pac.  1022. 
Where  a  demurrer  is  filed  after  default, 
without  first  having  the  default  vacated, 
it  confers  no  right,  and  does  not  prevent 
the  justice  from  setting  the  ease  for  trial, 
and  trying  it  without  notice  to  the  de- 
fendant, as  he,  bteing  in  default,  is  not 
entitled  to  notice.  Green  v.  Eogers,  18  Cal. 
App.  572;  123  Pac.  974. 

Eeview  or  certiorari.  This  section,  pro- 
viding that  a  justice  of  the  peace  must 
give  notice  of  the  day  fixed  for  trial,  is 
imperative,  and  a  judgment,  entered  with- 
out such  notice  having  been  first  given  to 
the  parties,  will  be  set  aside,  upon  a  writ 
of  review.  Jones  v.  Justice's  Court,  97  Cal. 
523;  32  Pac.  575;  Elder  v.  Justice's  Court, 
136  Cal.  364;  68  Pac.  1022.  Certiorari  goes 
only  to  the  jurisdiction  or  power  of  the 
court  to  act,  and  cannot  be  substituted  for 
an  appeal  to  review  an  erroneous  judg- 
ment of  a  justice's  court.  Armantage  v. 
Superior  Court,  1  Cal.  App.  130;  81  Pac. 
1033.  If  the  requirement  of  this  section, 
that  the  justice  must  fix  a  day  for  the 
trial  of  the  case,  and  notify  the  parties 
who  have  appeared,  is  jurisdictional,  and 
the  time  for  appeal  has  expired  before  the 
defendant  had  notice  that  the  case  had 
been  so  set,  and  trial  is  had  and  judgment 
entered  against  him,  it  would  be  a  harsh 
rule  which  would  preclude  him  from  show- 
ing, upon  certiorari,  that  he  had  never 
had  any  notice  of  the  trial;  because  the 
justice  is  not  required  to  enter  in  his 
docket  any  minute  of  the  service  of  notice 
of  the  time  of  trial,  nor  is  he  required  to 
file  any  proof  of  such  service.  Weimmer  v, 
Sutherland,  74  Cal.  341;  15  Pac.  849. 

Default,  what  constitutes.  A  default 
occurs  when  the  defendant  fails  to  answer 
or  demur  as  prescribed  in  this  section  and 
§  871,  post.  Weimmer  v.  Sutherland,  74 
Cal.  314;  15  Pac.  849. 


989 


PLEADINGS — FORM,  CONSTRUCTION,  SUFFICIENCY. 


§§851,852 


CHAPTER  III. 

PLEADINGS  IN  JUSTICES'  COURTS. 


§  851.     Form  of  plradinpa. 

§  852.     Pleadings  in  justices'  courts. 

§  8.53.     (^omplaint  defined. 

§  854.     When  demurrer  to  complaint  may  be  put 

in. 
§  855.     Answer,  what  to  contain. 


§  85C.     If   fhp  defendant   omit  to   set   up   counter- 
claim. 
§  857.    When  plaintiff  may  demur  to  answer. 
§  858.     Proceeding*  on  demurrer. 
§  8.')9.     Amendment  of  pleadings. 
§  860.     Answer  or  demurrer  to  amended  pleadings. 


§  851.     Form  of  pleadings.     Pleadins:s  in  justices'  courts — 

1.  Are  not  required  to  be  in  any  particular  form,  but  must  be  such  as  to 
enable  a  person  of  common  understanding  to  know  what  is  intended; 

2.  May,  except  the  complaint,  be  oral  or  in  wi-iting; 

3.  Must  not  be  verified,  unless  otherwise  provided  in  this  title; 

4.  If  in  writing,  must  be  filed  with  the  justice ; 

5.  If  oral,  an  entry  of  their  substance  must  be  made  in  the  docket. 

Verified  answer.     Ante,  §  112,  subd.        has   power   to   construe   the   pleadings  and 


Subd.  3 
2,  §  838. 

Legislation  §  851.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §§  571,  572,  which  read: 
"§  571.  The  pleadings  shall  be  in  writing,  and 
verified  by  the  oath  of  the  party,  his  agent  or 
attorney,  when  the  action  is:  1st.  For  the  fore- 
closure of  any  mortgage  or  the  enforcement  of 
any  lien  on  personal  property:  2d.  For  a  for- 
cible or  unlawful  entry  upon,  or  a  forcible  or  un- 
lawful detention  of  lands,  tenements,  or  other 
possessions:  3d.  To  recover  possession  of  a  'min- 
ing claim.'  In  other  cases  the  pleadings  may  be 
oral  or  in  writing."  "§  572.  When  the  plead- 
ings are  oral,  the  substance  of  them  shall  be 
entered  by  the  justice  in  his  docket;  when  in 
writing  they  shall  be  filed  in  his  office,  and  a 
reference  to  them  made  in  the  docket.  Plead- 
ings shall  not  be  ref|\iired  to  be  in  any  particular 
form,  but  shall  be  such  as-  to  enable  a  person 
of  common  understanding  to  know  what  is 
intended." 

Form   of  pleadings   sufficient   when.     A 

pleading  in  a  justice's  court  is  not  required 
to  be  in  any  particular  form:  it  is  suffi- 
cient if  it  shows  the  value  of  the  claim 
asserted  by  the  plaintiff  against  the  de- 
fendant, in  such  a  way  as  that  a  person 
of  common  understanding  may  know  what 
was  intended.  Aucker  v.  McCoy,  56  Cal. 
524. 

Construction  of  pleadings.  In  constru- 
ing the  pleadings  in  a  justice's  court  upon 
a  collateral  attack  u])on  the  judgment,  or 
upou  the  judgment  upon  appeal  therefrom, 
the  rule  excluding  conclusions  of  law  as  no 
part  of  the  pleading  does  not  apply;  and 
the  court,  having  jurisdiction  of  the  action, 

§  852.     Pleadings  in  justices'  courts. 

1.  The  complaint  bj'   the   plaintiff; 

2.  The  demurrer  to  the  complaint; 

3.  The  answer  by  the  defendant; 

4.  The  demurrer  to  the  answer. 

List  of  pleadings,  generally.    Ante,  §  422. 

Legislation  S  852.  Enacted  March  11,  1872  j 
based  on  Practice  Act,  §  570,  which  read:  "The 
pleadings  in  justices'  courts  shall  be:  1st.  The 
complaint  by  the  plaintiff,  stating  the  cause  of 
action:  2d.  The  answer  by  the  defendant,  stating 
the  ground   of   the  defense." 

Sufficiency  of  pleadings.  Pleadings  in 
justices'  courts  are  not  held  to  much  strict- 


determine  what  facts  are  put  in  issue,  and 
its  findings  and  adjudications  therein,  even 
if  erroneous,  cannot  be  questioned  col- 
laterally. Kochler  v.  Holt  Mfg.  Co.,  146 
Cal.  335;  80  Pac.  73. 

CODE    COMMISSIONERS'    NOTE.      It    is    not 

the  policy  of  the  law  to  confine  parties  to  any 
nice  strictness  in  pleading  before  justices  of 
the  peace;  thus,  if  a  party  docs  not  demur  to 
some  matter  of  form,  but,  instead  thereof,  goes 
to  trial,  it  must  be  considered  as  cured  by  the 
verdict.  Cronise  v.  Carghill,  4  Cal.  120.  Plead- 
ing in  justices'  courts  must  be  construed  with 
great  liberality;  and  if  the  facts  stated  are 
sufficient  to  show  the  nature  of  the  claim  or 
defense  relied  upon,  nothing  further  is  required. 
Where  it  is  unnecessary  (as  in  this  case)  that 
pleadings  should  be  in  writing,  it  is  difficult  to 
lay  down  any  rule  for  determining  their  suffi- 
ciency. To  authorize  the  reversal  of  a  judg- 
ment, the  defects  complained  of  should  be  such 
as  were  calculated  to  mislead  the  adverse  party. 
Stuart  V.  Lander,  16  Cal.  374;  76  Am.  Dec. 
538;  Liening  v.  Gould,  13  Cal.  599.  Where  an 
offense  is  created  by  statute  and  a  penalty  in- 
flicted, it  is  necessary  that  the  party  seeking  a 
recovery  should,  in  general,  refer  to  such  stat- 
ute; but  this  rule  doe.>(  not  apply  to  pleadings 
in  justices'  courts,  which  ar«  usually  without 
regard  to  form.  O'Callaghan  v.  Booth,  6  Cal. 
66;  affirmed  in  Hart  v.  Moon,  6  Cal.  162.  If 
the  complaint  states  a  good  cause  of  action,  but, 
in  addition  thereto,  contains  averments  and 
prays  for  relief  as  to  matters  not  within  the 
jurisdiction  of  the  justice,  the  action  should  not 
be  dismissed  for  that  reason,  but  the  court 
should  order  an  amendment  and  disregard  the 
objectionable  matter.  Howard  v.  Valentine,  20 
Cal.  282.  The  pleadings,  except  the  complaint, 
may  be  oral  or  in  \yriting.    See  §  853,  post. 


The  pleadings  are; 


ness  (Liening  v.  Gould,  13  Cal.  598);  and 
must  be  construed  with  great  liberality: 
if  the  facts  stated  are  sufficient  to  show 
the  nature  of  the  claim  or  defense  relied 
upon,  nothing  further  is  required  (Stuart 
v.  Lauder,  16  Cal.  372;  76  Am.  Dec.  53S); 
but,  however  liberal  the  rules  of  pleading 
may  be  in  such  courts,  the  complaint  must 


§§  853-855 


PLEADINGS   IN   JUSTICES     COURTS. 


990 


state  the  cause  of  action  relied  upon;  and 
in  that  court,  as  in  every  other,  the  alle- 
gations and  proof  must  correspond,  and 
the  judgment  must  be  upon  the  demand 
and  within  the  pleadings.  Terry  v.  Su- 
perior Court,  110  Cal.  85;  42  Pac.  464. 


Cross-complaint    not    authorized.     In    a 

justice's  court,  the  only  pleadings  avail- 
able to  a  defendant  are  a  demurrer,  or 
an  answer  to  the  complaint:  a  cross-com- 
plaint is  not  authorized.  Pureell  v.  Eich- 
ardson,  164  Cal.  150;  128  Pac.  31. 


§  853.  Complaint  defined.  The  complaint  in  justices'  courts  is  a  concise 
statement,  in  writing,  of  the  facts  constituting  the  plaintiff's  cause  of  ac- 
tion ;  or  a  copy  of  the  account,  note,  bill,  bond,  or  instrument  upon  which  the 
action  is  based. 

Complaint,  generally.    Ante,  §  426. 

Legislation  §  853.  Enacted  March  11,  1S72; 
based  on  Practice  Act,  §  573,  which  read:  "TTie 
complaint  shall  state  in  a  plain  and  direct  man- 
ner the  facts  constituting  the  caUES  of  action." 

Copy  of  account  as  complaint.  A  com- 
plaint, filed  with  a  justice,  purporting  to 
be  a  copy  of  an  account  for  money  bor- 
rowed, is  sufficient,  under  this  section,  in 
the  absence  of  a  demurrer.  Montgomery 
V.  Superior  Court,  68  Cal.  407;  9  Pac.  720. 

Note,  or  copy  thereof,  as  complaint.  A 
note,  with  the  proper  indorsements  thereon, 
filed  with  a  justice,  is  sufficient  as  a  com- 
plaint. Hamilton  v.  McDonald,  18  Cal.  128. 
In  an  action  by  a  bank,  in  a  justice's  court, 
a  copy  of  the  note  sued  on  is  sufficient; 
and  if  the  bank  is  a  corporation,  in  the 
absence  of  objection  to  its  want  of  capa- 
city   to   sue,   by    demurrer   or   answer,    all 

§  854.  When  demurrer  to  complaint  may  be  put  in.  The  defendant  may, 
at  any  time  before  answering,  demur  to  the  complaint. 

Demurrer,  generally.    Ante,  §  430. 
Legislation  §  854.     Enacted  Marck  11,  1873. 

§  855.  Answer,  what  to  contain.  The  answer  may  contain  a  denial  of 
any  or  all  of  the  material  facts  stated  in  the  complaint,  which  the  defend- 
ant believes  to  be  untrue,  and  also  a  statement,  in  a  plain  and  direct  man- 
ner, of  any  other  facts  constituting  a  defense  or  counterclaim,  upon  which 
an  action  might  be  brought  by  the  defendant  against  the  plaintiff,  or  his 
assignor,  in  a  justice's  court. 

complaint  conforms  substantially  to  the 
requirements  of  the  statute  (Sullivan  v. 
Cary,  17  Cal.  80);  and  an  answer  denying 
the  material  allegations  of  the  complaint 
either  generally  or  specifically,  is  sufficient. 
Minturn  v.  Burr,  20  Cal.  48. 


objection  thereto  is  waived.  McFall  v. 
Buckeve  Grangers'  etc.  Ass'n,  122  Cal.  468; 
6S  Am";  St.  Eep.  47;  55  Pac.  253. 

Value  of  claim  stated  how.  A  complaint 
in  a  justice's  court  is  sufficient  if  it  shows 
the  value  of  the  claim  asserted,  in  such  a 
way  as  that  a  person  of  common  under- 
standing may  know  what  is  intended. 
Aucker  v.  McCoy,  56  Cal.  524. 

Subscription  to  complaint  unnecessary. 
The  complaint,  in  an  action  in  a  justice's 
court,  need  not  be  subscribed  by  the  plain- 
tiff or  his  attorney.  Montgomery  v.  Su- 
perior Court,  68  Cal.  407;  9  Pac.  720. 

CODE  COMMISSIONERS'  NOTE.  In  action 
for  payment  of  a  note,  the  complaint  may  con- 
sist simply  of  the  note,  with  the  proper  indorse- 
ment thereon,  filed  with  the  justice.  Hamilton 
V.  McDonald,  18  Cal.  128. 


Answer,  generally.    Ante,  §  437. 

Legislation  §  855.  1.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §574),  (1)  adding  "or 
all"  after  "of  any,"  (2)  omitting  "a"  before 
"counterclaim,"  and  (3)  changing  "justices'"  to 
"justice's." 

3.  Amendment  by  Stats.  1901,  p.  168;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907.  p.  880;  the  code 
commissioner  saying,  "The  words  'or  his  assignor' 
are  inserted  after  the  word  'plaintiff.'  " 

Counterclaim.  A  pleading  that  sets  up 
new  matter  by  way  of  counterclaim  is 
simplv  an  answer.  Pureell  v.  Eichardson, 
164  Cal.  150;  128  Pac.  31.  The  defendant 
in  an  action  in  a  justice's  court  cannot  set 
up  a  counterclaim  for  a  sum  exceeding 
three  hundred  dollars.  Maxfield  v.  John- 
son, 30  Cal.  545;  Malson  v.  Vaughn,  23  Cal. 
61;  Griswold  v.  Pieratt,  110  Cal.  259;  42 
Pac.  820. 

SuflSciency  of  answer.  An  answer  deny- 
ing    generally     the     allegations     of     the 


CODE  COMMISSIONERS'  NOTE.  An  answer 
is  sufficient,  which  denies  generally  the  allega- 
tions of  the  complaint.  Sullivan  v.  Cary,  17  Cal. 
80.  Even  the  answer  to  a  verified  complaint, 
in  an  action  in  a  justice's  court,  need  not 
controvert  specifically  the  material  allegations  of 
such  complaint.  It  is  sufficient  if  the  answer 
deny  the  material  allegations,  either  generally 
or  specifically.  Minturn  v.  Burr,  20  Cal.  49. 
The  appearance  of  a  defendant,  for  the  purpose 
of  making  a  motion  to  dismiss  the  case  on 
account  of  a  defective  summons,  does  not  waive 
his  rights.  Had  he  answered  without  any  ob- 
jection, then  he  could  not  have  complained. 
Deidesheimer  v.  Brown,  8  Cal.  339.  But  his 
rights  are  not  waived  by  the  filing  of  an  answer 
after  he  has  moved  to  dismiss  and  the  motion 
has  been  overruled.  Gray  v.  Hawes,  8  Cal.  569. 
A  counterclaim,  which  exceeds  three  hundred 
dollars,   cannot  be  set  up  in  answer.    Maxfield  v. 


991  COUNTERCLAIM — DEMURRER — AMENDMENTS.  §§856-859 

Johnson,  30  Cal.  515;  Malson  v.  Viiushn,  23  Cal.  properly  made  by  fho  annwpr,  and  that  objection 
61.  The  objection  to  the  jurisdiction  of  the  should  be  first  d'fttrmiiwd  before  the  justice  pro- 
justice,  on  the  pround  of  the  excess  in  value  of  ceeds  to  hear  the  merits  of  the  case.  Small  v. 
the    subject    of    the    controversy,    was    held    to    be  Gwinn.  G  Cal.  440. 

§  856.  If  the  defendant  omit  to  set  up  counterclaim.  If  the  defendant 
omit  to  set  x\p  a  counterclaim  in  the  cases  mentioned  in  the  last  section, 
neither  he  nor  his  assignee  can  afterwards  maintain  an  action  against  the 
plaintiff  therefor. 

Counterclaim  waived,  generally.    Ante,  §  439. 
Legislation  g  856.      Enacted  March  11,  1873. 

§  857.  When  plaintiff  may  demur  to  answer.  When  the  answer  con- 
tains new  matter  in  avoidance,  or  constituting  a  defense  or  a  counterclaim, 
the  plaintiff  may,  at  any  time  before  the  trial,  demur  to  the  same  for 
insufficiency,  stating  therein  the  grounds  of  such  demurrer. 

Demurrer  to  answer,  generally.    Ante,  §  443. 
Legislation  §  857.      Enacted  March  11,  1873. 

§  858.     Proceedings  on  demurrer.     The  proceedings  on  demurrer  are  as 

follows : 

1.  If  the  demurrer  to  the  complaint  is  sustained,  the  plaintiff  may,  within 
such  time,  not  exceeding  two  days,  as  the  court  allows,  amend  his  com- 
plaint ; 

2.  If  the  demurrer  to  a  complaint  is  overruled,  the  defendant  may  answer 
forthwith ; 

3.  If  the  demurrer  to  an  answer  is  sustained,  the  defendant  may  amend 
his  answer  within  such  time,  not  exceeding  two  days,  as  the  court  may 
allow ; 

4.  If  the  demurrer  to  an  answer  is  overruled,  the  action  must  proceed  as 
if  no  demurrer  had  been  interposed. 

Proceedings     on     demurrer.       Compare     ante,  murrer,  as   well   as   the  time   which   it   will 

§§  472,  630.  allow,  must  depend  upon  the  facts  of  that 

Legislation  g  858.     Enacted  March  11,  1873.  ^^^e,  but,  so  long  as  it  has  power  to  make 

Construction  of  section.  This  section  is  such  an  order,  its  action  cannot  be  disre- 
controlled  by  §  874,  post,  which  is  general  garded;  and  as  §  874,  post,  forbids  the  post- 
in  its  terms,  in  relation  to  the  subject-  pohement  of  the  trial  for  more  than  two 
matter  of  its  provisions.  Hall  v.  Kerrigan,  days  for  this  purpose,  there  cannot,  ordi- 
135  Cal.  4;  66  Pac.  868.  narily,  be  any  abuse  of  this  power.    Hall 

Time  allowed  for  answer.     Although  the  v.    Kerrigan,    135    Cal.    4;    66    Pae.    868. 

pleadings  in  a  justice's  court  may  be  oral,  Where  a  demurrer  is  filed  to  a  complaint 

yet   they   are   not  required   to   be   so*   and  in    a   justice's    court,    and   a    day    for    the 

there  are  many  instances  in  which  a  de-  hearing  thereof  is  fixed  by  the  justice,  and 

fense  can  be  better  presented  by  a  writ-  notice    is    served    upon    the    defendant,    as 

ten  pleading;   and,  as  a  defendant  cannot  required  by  §  850,  ante,   the   court  has  ju- 

know    in    advance    whether    his    demurrer  risdiction,    under    this    section    and  §  872, 

■will   be   sustained   or   overruled,   he   ought  post,  upon  the  failure  of  the  defendant  to 

not  to  be  required  to  prepare  his  answer  appear  at  the  hearing,  to  overrule  the  de- 

in    advance   of   the   hearing   upon   the   de-  murrer  and   require   the   defendant  to  an- 

murrer,    unless    the    statute    so    demands;  swer   at    once,   and   upon   a   failure    so    to 

whether,  in  any  particular  case,  the  court  answer,  to  render  judgment  by  default  iu 

should   allow  time  for  the  preparation   of  favor  of  the  plaintiff.    Stewart  v.  Justice's 

the  answer,  after  the   order  upon   the  de-  Court,  109  Cal.  616;  42  Pac.  153. 

§  859.  Amendment  of  pleadings.  Either  party  may,  at  any  time  before 
the  conclusion  of  the  trial,  amend  any  pleading;  but  if  the  amendment  is 
made  after  the  issue,  and  it  appears  to  the  satisfaction  of  the  court,  by 
oath,  that  an  adjournment  is  necessary  to  the  adverse  party  in  consequence 
of  such  amendment,  an  adjournment  must  be  granted.  The  court  may  also, 
in  its  discretion,  when  an  adjournment  will  by  the  amendment  be  rendered 


§859 


PLEADINGS   IN   JUSTICES'    COURTS. 


992 


necessary,  require  as  a  condition  to  the  allowance  of  such  amendment,  made 
after  issue  joined,  the  payment  of  costs  to  the  adverse  party,  to  be  fixed  by 
the  court,  not  exceeding  twenty  dollars.  The  court  may  also,  on  such 
terms  as  may  be  just,  and  on  payment  of  costs,  relieve  a  party  from  a  judg- 
ment by  default  taken  against  him  by  his  mistake,  inadvertence,  surprise, 
or  excusable  neglect,  but  the  application  for  such  relief  must  be  made 
within  ten  days  after  notice  of  the  entry  of  the  judgment  and  upon  an  affi- 
davit showing  good  cause  therefor. 


Amendment. 

1.  Generally.    Ante,  §  473. 

2.  Adjournment     because     of.      Post,  §  874, 
subil.  2. 

Belief  from  judgments,  generally.  See  ante, 
§473. 

Legislation  8  859.  1.  Enacted  March  11,  1873; 
based   on    Practice   Act,  §  580. 

2.  Amendment  by  Stats.  1901,  p.  169;  un- 
constitutional.    See  note  ante,  §  .5. 

3.  Amended  by  Stats.  1905,  p.  254,  insert- 
ing "notice  of"  before  "the  entry." 

Construction  of  sections.  Proceedings  in 
superior  courts  are  dealt  with  in  §  473, 
ante;  but  this  section  is  a  special  provis- 
ion, applicable  to  justices'  courts,  and 
prevails  in  dealing  with  the  subject  of 
vacating  judgments  in  justices'  courts. 
Hubbard  v.  Superior  Court,  9  Cal.  App. 
166;  98  Pac.  394. 

Amendment  of  pleadings.  Amendments 
should  be  readily  allowed,  whenever  they 
tend  to  the  furtherance  of  justice;  and  the 
greatest  liberality,  in  this  respect,  should 
be  extended  to  pleadings  in  justices'  courts. 
Butler  V.  King,  10  Cal.  342. 

Application  for  relief  against  default 
judgments.  Application  for  relief  against 
a  judgment  by  default  must  be  by  motion, 
and  the  mere  making  of  a  written  applica- 
tion is  not  sufficient:  the  attention  of  the 
court  must  be  called  to  it,  and  the  court 
moved  to  grant  it,  or  some  present  action 
requested,  upon  notice  to  the  opposite 
party,  before  the  expiration  of  the  time 
limited.  Spencer  v.  Branham,  109  Cal.  336; 
41  Pac.  1095.  The  court  does  not  lose 
jurisdiction  to  set  aside  a  default  by  con- 
tinuing the  hearing  for  further  argument. 
Townsend  v.  Parker,  21  Cal.  App.  317;  131 
Pac.  766.  Where  a  default  judgment  is 
rendered  against  the  defendant,  his  mo- 
tion to  set  it  aside,  made  more  than  ten 
days  after  notice  of  the  entry  of  the  judg- 
ment, is  properly  denied,  although  the  sum- 
mons in  the  action  does  not  name  the 
plaintiff  in  the  action,  but  another  name 
is  inserted  therein  as  plaintiff.  Tucker  v. 
Justice's  Court,  120  Cal.  512;  52  Pac.  808. 
Where  notice  of  entry  of  a  default  judg- 
ment expires  on  Sunday,  the  defendant  has 
all  of  the  next  day  within  which  to  apply 
for  a  release  from  a  judgment,  on  the 
ground  of  mistake,  surprise,  or  excusable 
neglect.  Townsend  v.  Parker,  21  Cal.  App. 
317;  131  Pac.  766. 

Jurisdiction  to  set  aside  default  judg- 
ment. The  power  given  to  justices'  courts, 
by  this  section,  to  relieve  from  judgments 


by  default,  taken  through  mistake,  inad- 
vertence, surprise,  or  excusable  neglect,  is 
expressly  confined  to  judgments  by  default 
(Weimmer  v.  Sutherland,  74  Cal.  341;  15 
Pac.  849;  Jones  v.  Justice's  Court,  97  Cal. 
523;  32  Pac.  575;  American  Type  Founders 
Co.  V.  .Justice's  Court,  133  Cal.  319;  65  Pac. 
742) ;  and  the  time  is  limited  to  ten  days 
after  the  entry  of  such  judgments.  Weim- 
mer v.  Sutherland,  74  Cal.  341;  15  Pac. 
849;  Simon  v.  Justice's  Court,  127  Cal.  45; 
59  Pac.  296;  Fast  v.  Young,  19  Cal.  App. 
577;  126  Pac.  854.  Justices'  courts  have 
no  power,  under  this  section,  to  set  aside 
a  judgment  rendered  after  a  regular  trial. 
Heinlen  v.  Phillips,  88  Cal.  557;  26  Pac. 
366.  Where  a  motion  is  made,  within  the 
time  limited,  to  set  aside  a  default,  the 
court  may  continue  the  hearing  for  argu- 
ment or  further  evidence,  without  loss  of 
jurisdiction.  Spencer  v.  Branham,  109  Cal. 
336;  41  Pac.  1095.  A  judgment  entered 
after  a  demurrer  to  the  complaint  has  been 
overruled  and  the  defendant  has  failed  to 
answer,  may  be  set  aside  as  a  default  judg- 
ment. Fast  V.  Young,  19  Cal.  App.  577; 
126  Pac.  854. 

Default  judgment  voidable  when.  Where 
the  summons,  in  an  action  in  a  justice's 
court,  is  defective,  a  judgment  by  default, 
rendered  after  personal  service  on  the  de- 
fendant, is  voidable  only,  and  cannot  be 
collaterally  attacked.  Keybers  v.  McCom- 
ber,  67  Cal.  395;  7  Pac.  838.  A  judgment 
entered  against  the  defendant  by  default, 
before  the  time  for  answering  has  expired, 
is  voidable.  Harnish  v.  Bramer,  71  Cal. 
155;  11  Pac.  888. 

Collateral  attack  upon  judgment.  A 
judgment  of  a  justice  of  the  peace,  against 
a  person  who  was  not  served  with  sum- 
mons, and  did  not  appear  in  the  action,  is 
in  fact  void;  but  if  the  record  shows  that 
the  defendant  was  served  and  appeared, 
and  the  judgment  is  regular  on  its  face, 
it  cannot  be  collaterally  attacked.  Har- 
nish v.  Bramer,  71  Cal.  155;  11  Pac.  888. 

Equitable  relief  against  judgment. 
Where  legal  and  equitable  relief  is  dis- 
pensed in  different  tribunals,  a  court  of 
equity  will  not  grant  relief  against  a  judg- 
ment, when  the  same  relief  can  be  ob- 
tained by  the  aid  of  the  court  that 
rendered  the  judgment;  but,  under  the 
system  of  procedure  in  this  state,  where 
the  various  kinds  of  relief  are  adminis- 
tered   by    the    same    tribunal,    and    where 


993 


AMENDED  PLEADINGS ANSWER  OR  DEMURRER  TO. 


§860 


there  is  but  one  form  of  civil  action  for 
the  enforcement  or  protection  of  civil 
rights,  a  party  who  presents  a  complaint 
showing  his  right  to  the  relief  asked  is 
not  to  be  denied  that  relief  because  he 
might  have  sought  it  under  a  different 
form  of  action.  Mcrrinian  v.  Walton,  105 
Cal.  403;  45  Am.  St.  Rej).  50;  30  L.  R.  A. 
786;  38  Pac.  1108.  Where  a  motion,  in  a 
justice's  court,  to  open  a  juilgment  pro- 
cured by  fraud  was  granted,  but,  on  the 
following  day,  the  justice,  without  notice 
to  the  jiJaintiff  or  his  attorney,  vacated 
the  order,  such  subsequent  action  is  equiva- 
lent to  a  denial  of  the  motion,  and  from 
this  order  there  was  no  appeal  to  the 
superior  court,  and  equity  will  relieve 
against  the  judgment:  the  rule  under 
which  a  court  of  equity  declines  to  inter- 
fere until  after  an  apj)lication  for  relief 
has  been  made  to  the  court  in  which  the 
judgment  was  rendered  has  no  application 
when  relief  has  been  sought  and  denied 
in  that  court.  Merriman  v.  Walton,  105 
Cal.  403;  45  Am.  St.  Rep.  50;  30  L.  R.  A. 
78(3;  38  Pac.  1108.  Where  a  money  judg- 
ment was  recovered  in  a  justice's  court, 
but  the  causes  of  action  set  out  in  the 
case  were  barred  by  limitation  before  the 
commencement  of  an  action  for  relief 
against  such  judgment,  and  there  is  noth- 
ing to  show  that  the  plaintiff  in  the  jus- 
tice's court  case  was  guilty  of  any  fraud 
in  the  procurement  of  the  judgment,  it 
would  be  inequitable  to  set  aside  the  judg- 
ment without  a  showing  that  there  was  a 
good  defense  to  the  justice's  court  action. 
Burbridge  v.  Rauer,  146  Cal.  21;  79  Pac. 
526.  A  complaint  for  an  injunction  to  re- 
strain the  enforcement  of  a  judgment  in 
a  justice's  court,  from  which  it  appears 
that  the  grounds  therefor  were  known  to 
the  plaintiff  within  a  week  after  the  ver- 
dict against  him,  and  that  he  negligently 
failed  to  avail  himself  of  the  remedy  there- 
for by  appeal  within  the  time  limited  by 
law,  does  not  state  a  cause  of  action  for 
the  interference  of  a  court  of  equity.  Hol- 
lenbeck  v.  McCoy,  127  Cal.  21;  59  Pac. 
201.     An    injunction    does    not    lie    to    re- 


strain the  enforcement  of  an  execution  is- 
sued on  a  judgment  by  default,  rendered 
in  a  justice's  court,  which  is  void  on  its 
face  for  the  reason  that  the  court  never 
acquired  jurisdiction  of  the  person  of  the 
defendant:  in  such  case,  there  is  an  ade- 
quate remedy  at  law,  by  motion  in  the 
justice's  court  to  set  aside  the  execution. 
Luco  V.  Brown,  73  Cal.  3;  2  Am.  St.  Rep. 
772;  14  Pac.  366.  The  enforcement  of  a 
judgment  by  default,  rendered  in  a  jus- 
tice's court,  will  not  be  restrained  in 
equity  on  the  ground  that  the  same  was 
taken  through  the  inadvertence  and  excus- 
able neglect  of  the  judgment  debtor,  after 
a  motion  made  by  him  in  the  justice's 
court,  under  this  section,  to  be  relieved 
from  the  judgment,  on  such  ground,  has 
been  denied.  Reagan  v.  Fitzgerald,  75  Cal. 
230;  17  Pac.  198. 

Certiorari.  Where  a  motion  is  made, 
under  this  section,  before  the  expiration 
of  ten  days,  to  set  aside  a  judgment  by 
default,  and  for  leave  to  answer,  and  the 
motion  is  denied,  the  order  denying  the 
motion  will  not  be  reviewed  on  certiorari, 
although  erroneous,  where  the  justice  had 
jurisdiction.  Reagan  v.  .Justice's  Court,  75 
Cal.  253;  17  Pac.  195.  Under  this  section, 
a  justice's  court  has  no  power  to  vacate 
its  judgments,  other  than  judgments  by 
default,  and  an  order  attempting  so  to  do, 
not  being  appealable,  will  be  annulled  on 
certiorari.  Weimmer  v.  Sutherland,  74  Cal. 
341;  15  Pac.  849.  On  certiorari  to  annul 
an  order  vacating  a  default  judgment  en- 
tered by  a  justice,  the  superior  court,  if 
satisfied  that  the  justice  had  power  to 
make  the  order,  should  affirm  it,  instead 
of  dismissing  the  proceedings.  Fast  v. 
Young,  19  Cal.  App.  577;  126  Pac.  854. 

CODE  COMMISSIONERS'  NOTE.  This  sec- 
tion was  amondcd  so  as  to  read  as  published 
in  the  toxt,  by  act  of  April  1,  1872.  Amend- 
ments should  be  readily  allowed,  and  the  great- 
est liberality  in  this  respect  should  be  extended 
to  pleadings  in  justices'  courts.  Butler  v.  King, 
10  Cal.  343.  And  this,  whether  the  defect  be 
the  statement  of  jurisdictional  or  any  other  fart. 
Amendments  in  all  respects  should  be  allowed, 
.so  that  the  case  mav  be  determined  on  its  merits. 
Linhart  v.  Buiff,  11  Cal.  280. 


§  860.  Answer  or  demurrer  to  amended  pleadings.  When  a  pleading  is 
amended,  the  adverse  party  may  answer  or  demur  to  it  within  such  time, 
not  exeeedinfT  two  days,  as  the  court  may  allow. 

Time  to  plead.    Compare  ante,  §  432. 
Legislation  §  860.     Enacted  March  11,  1873. 
1  Fair.— 63 


§§861,862  justices'  courts — arrest  and  bail.  994 

CHAPTER  IV. 

PEOVISIONAL  KEMEDIES  IN  JUSTICES'  COURTS. 

Article  I.     Arrest  and  Bail.     §§  861-865. 
II.     Attachment.     §§  866-869. 
in.     Claim  and  Delivery  of  Personal  Property.     §  870. 

ARTICLE  I. 

ARREST  AND  BAIL. 

§  861.    Order  of  arrest,   and  arrest  of  defendant.  fore  the  justice  immediately. 

§  862.     Affidavit    and    undertaking    for    order    of  §  864.     The  officer  must  give  notice  to  the  plain- 
arrest,  tiff  of  arrest. 

§  863.    A   defendant   arrested  must  be  taken  be-  §  865.    The  officer  must  detain  the  defendant. 

§  861.  Order  of  arrest,  and  arrest  of  defendant.  An  order  to  arrest  the 
defendant  may  be  indorsed  on  a  summons  issued  by  the  justice,  and  the  de- 
fendant may  be  arrested  thereon  by  the  sheriff  or  constable,  at  the  time  of 
serving  the  summons,  and  brought  before  the  justice,  and  there  detained 
until  duly  discharged,  in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause  of  ac- 
tion arising  upon  contract,  express  or  implied,  when  the  defendant  is  about 
to  depart  from  the  state,  with  intent  to  defraud  his  creditors ; 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property  embezzled 
or  fraudulently  misapplied,  or  converted  to  his  own  use  by  one  who  received 
it  in  a  fiduciary  capacity ; 

3.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting  the  debt 
or  incurring  the  obligation  for  Avhich  the  action  is  brought ; 

4.  When  the  defendant  has  removed,  concealed,  or  disposed  of  his  prop- 
erty, or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

But  no  female  can  be  arrested  in  any  action. 

Arrest  and  bail.     Ante,  §§  478  et  seq.  action   exists  upon  a  contract,   express  or 

Mesne  aud  final  process  of  justices'  courts  may  imDlied     and    that   n    pn^p   nf   frniiH    Pifi<5l-<? 

be  issued  to  auy  part  of  the  county.   Ante,  §§  94,  impJiea,  ana   tnat  a   case   or   traud   exists, 

106.  witnm    the    terms    or    the    statute.     In    re 

Legislation  §  861.     Enacted    March    11,    1873  Vmich,  S6_  Cal.  70;   26  Pac.  528.     Anorder 

(based  on  Practice  Act,  §  544),   (1)  omitting,  in  ot  arrest  m  a  Civil  action  may   06  issued 

introductory   paragraph,    "arising   after   the   pass-  by   a   justice    of   the   peace,    upon   the   facta 

^l^'ifif  J^tl^  ""^'"a  a"" ,  Vfojlo^yiig  cases":    (2)  necessary  to  authorize  the  order.    Applica- 

omittmg  from   end   of   subd.   1,      or  where   the  ac-  ,.  ^  i       t\  -,n-,    r^    i     /^<in      ir.,^   t-.  -,n 

tion   is   for  a   willful   injury  to  the  person,   or  for  tion   0±   La  Due,   Ibl   Lai.   632;    120  Pac.   13. 

taking,  detaining,  or  injuring  personal  property";  The   proof    required,    before    an    order    of 

if- wn^r  "'^J'.*^' «?;n.'^^^"V'*\°^  "one  who  received  arrest   can   be  made   by   a  justice   of  the 

It      for      an    attorney,    factor,    broker,    agent,    or  .  j     ^    j    ^^  ^^  ^^    i.    v^ 

clerk,  in  the  course  of  his  employment  as  such,  peace,  in   an  action  to  recover  a  debt,  IS. 

or  by  any  other  person";    (4)   in  subd.  4.   sub-  jurisdictional.    In   re   Vinich,   86   Cal.    70; 

stituting  "can"  for  "shall"  before  "be  arrested."  26  Pac   5''8 

Proof  necessary  before  order.     Before  an  Female   cannot  be   arrested.     A  woman 

order  of  arrest  can  be  made  by  a  justice  cannot  be  arrested  upon  process  issued  in 

of   the   peace,   in   an   action   to   recover   a  a  civil  action.    Nelson  v.  Kellogg,  162  CaL 

debt,  it   must   be  proved  that  a  cause   of  621;  Ann.  Gas.  1913D,  759;  123  Pac.  1115. 

§  862.  Affidavit  and  undertaking  for  order  of  arrest.  Before  an  order 
for  an  arrest  can  be  made,  the  party  applying  must  prove  to  the  satisfac- 
tion of  the  justice  by  the  affidavit  of  himself,  or  some  other  person,  the 
facts  upon  which  the  application  is  founded.  The  plaintiff  must  also  exe- 
cute and  deliver  to  the  justice  a  written  undertaking  in  the  sum  of  three 
hundred  dollars,  with  sufficient  sureties,  to  the  effect  that  the  plaintiff  will 
pay  all  costs  that  may  be  adjudged  to  the  defendant,  and  all  damages  which 
he  may  sustain  by  reason  of  the  arrest,  if  the  same  be  wrongful,  or  without 
sufficient  cause,  not  exceeding  the  sum  specified  in  the  undertaking. 


995  PROCEEDINGS  UPON  ARREST  OP^  DEFENDANT,  §§  863-865 

Affidavit  and  undertaking  for  arrest.    Compare  more    suretios,"    (2)    oraittinc   "if    the    defendant 

aiiN'.  i)^  -481,  482.  recover  .judgment"     before     "the     plaintiff,"     (3) 

Qualihcatioa  of  sureties.    I'ost,  §  10.'")7.  sub.stitutiiiK    "adjudRe"    for    "awarded,"    and    (4) 

Legislation  S  862.     1.  Enacted  March  11.  1872;  inserting,  after  "by  reason  of  the  arrest."   "if  the 

based   on    Practice    Act,  §  545,    which    read:    "Be-  same  be  wrongful  or  without  sufficient  cause." 

fore    an    order    for    an    arrest    shall    be    made,    the  a  flR/4'>Tr'i4.    m,-,^*-    o4.n4.«    ■^■h^t.       rri           ir  ^ 

party   applying  shall   prove   to   the   satisfaction   of  Affidavit    mUSt    State    What.      The    aflGda- 

the  justice,   by  the  aftidavit   of   himself  or  some  vit  for  an   onlor  of  arrest  must  state  tlio 

other   person,    the   facts   im   which   the   application  facts    COllstitutinL'    the    fraud    charL'Cd,    by 

is   founded.      The   plaintiff  shall   also   execute   and        ,„„,,   „f     i; ,  i.      .  i  i         ."'.•' 

deliver  to  the  justice  a  written  undertaking,  with  ^^^^   ^t   (Urcct   averment,   and    not   upon   in- 

two   or  more   sureties,   to  the  effect  that  if  the  formation  and  belief.   In  re  Vinich,  86  Cal. 

defendant  recover  judgment,  the  plaintiff  will  pay  70-  26  Pac    528 

to   him  all  costs   that   may   be   awarded   to   the  de-  ixr^^t.    «*    ^..Ij   ^t   t.t         j.             i             j           x> 

fendant,    and   all   damages   which    he   may   sustain  Want    01    junsalctlon    tO    make    Otdet    01 

by   reason    of    the    arrest,    not   exceeding    the    sum  arrest.      An    affidavit    showing    that    an    ac- 

specified    in   the   undevt.aking which   shall   be   at  tion   has   been   begun   for   the  recovery   of 

least     two     hundred     dollars.        When  §  862     was  ,j    ,,          ,,,    .     ,    ,  ,     ,               ,           ^"       .•' . 

enacted  in    1872.    (1)    "can"  was   substituted  for  an      alleged     indebtedness,   but  containing 

"shall"   after   "arrest,"   and   "must"    for  "shall"  no  averment  that  such  indebtedness  or  any 

after    "applying"    and    after    "plaintiff":     (2)     "in  cause    of    action    exists      is    fnndqmpntnllv 

the    sum   of   three    hundred   dollars"    was    inserted  ,   "^®,."^    acuon    exisiS,    IS    lunciamentaiiy 

after   "undertaking,"   and    (3)    "which   shall   be  at  defective,     and     leaves    the    court     Without 

least   two  hundred  dollars"   was  omitted   at   end  jurisdiction    to    make    an    order    of    arrest, 

"^sf^Amended  by  Code  Amdts.  1873-74.  p.  334,        t^^  ^^"*   "^   P^'OO^    0^   the   cause   of   action. 
(1)  substituting  "sufficient  sureties"  for  "two  or       In  re  Vinieh,  86  Cal.  70;  26  Pac.  528. 

§  863.  A  defendant  arrested  must  be  taken  before  the  justice  immedi- 
ately. The  defendant  immediately  upon  being  arrested,  must  be  taken  to 
the  office  of  the  justice  who  made  the  order,  and  if  he  is  absent  or  unable 
to  try  the  action,  or  if  it  appears  to  him  by  the  affidavit  of  the  defendant 
that  he  is  a  material  witness  in  the  action,  the  officer  must  immediately 
take  the  defendant  before  another  justice  of  the  township  or  city,  if  there 
is  another,  and  if  not,  then  before  the  justice  of  an  adjoining  township,  who 
must  take  jurisdiction  of  the  action,  and  proceed  thereon,  as  if  the  sum- 
mons had  been  issued  and  the  order  of  arrest  made  by  him. 

Legislation  S  863.      Enacted    March    11,    1873  "justice,"    (6)    "township  or  city,  if  there  is  an- 

(based   on   Practice   Act.  §  546),   substituting    (1)  other   and    if   not,    then   before    the   justice    of   an 

"must"    for    "shall"    after    "arrested,"     (2)     "is"  adjoining    township,    who    must    take    jurisdiction 

for    "be"    after    "absent,"    (3)    "be    made    to    ap-  of  the  action,"  for  "city  or  township,  who  sliall 

pear"  for  "appears,"  (4)  "must"  for  "shall"  after  take  cognizance  of  the  action." 
"officer,"     (5)     "another"    for    "the    next"    after 

§  864.  The  officer  must  give  notice  to  the  plaintiff  of  arrest.  The  officer 
making  the  arrest  must  immediately  give  notice  thereof  to  the  plaintiff,  or 
his  attorney  or  agent,  and  indorse  on  the  summons,  and  subscribe  a  cer- 
tificate, stating  the  time  of  serving  the  same,  the  time  of  the  arrest,  and  of 
his  giving  notice  to  the  plaintiff. 

Legislation  §  864.     Enacted    March    11,    1872        from  "shall." 
(based  on  Practice   Act,  §  547),  changing   "must" 

§  865.  The  officer  must  detain  the  defendant.  The  officer  making  the 
arrest  must  keep  the  defendant  in  custody  until  he  is  discharged  by  order 
of  the  justice. 

Legislation  8  865.      Enacted    March    11,    1873        from    "shall,"    and    (3)    "he  is"   from   "duly"   be- 
(based    on    Practice    Act,  §548),    changing     (1)        fore  "discharged." 
"the"    from    "an"    before    "arrest,"    (2)    "must" 


§§  866, 867  justices'  courts — attachment.  996 

ARTICLE  II. 

ATTACHMENT. 

§  866.     Issue  of  writ  of  attachment.  may    take    an    undertaking    instead    of 

§  867.    Attachment,   undertaking   on.      Exceptions  levying. 

to  sureties.  §  869.     Certain    provisions    apply    to    all    attach- 

§  868.     Writ  of  attachment,  substance  of.     OiRcer  ments  in  justices'  courts. 

§  866.  Issue  of  writ  of  attachment.  A  writ  to  attach  the  property  of 
the  defendant  must  be  issued  by  the  justice  at  the  time  of,  or  after  issuing 
summons  in  actions  in  which  the  sum  claimed  exclusive  of  interest  exceeds 
ten  dollars,  on  receiving  an  affidavit  by  or  on  behalf  of  the  plaintiff,  show- 
ing the  same  facts  as  are  required  to  be  shown  by  the  affidavit  specified  in 
section  five  hundred  and  thirty-eight. 

Attachment,  generally.    Ante,  §§  537  et  seq.  attachment  is  not  vitiated.     Seaver  v.  Fitz- 

Mesne  and  fiual  process  of  justices'  courts  may  p-prald    '?'^  C'al    S'l       Whprp  tliP  siimmnTi'^  i<i 

be  issued  to  any  part  of  the  couuty.   Ante,  §§  94,  gerai<  ,  ^6  i^ai.  SD.      vynere  tne  summons  is 

1U6.  unauthorized  and  void,  an  attachment  is- 

Legislation  S  see.    1.  Enacted  March  11,  1873;  sued   in   the   cause  is  also   void.    Hisler  v. 

based    on    Practice     Act,  §  552,     as    amended     by  Larr,  .i4  Oal.  641. 

Stats.  1858,  p.  154,  which  read:  "§552.  A  writ  Application  of  Section  to  trespassing  ani- 

to  attach  the  property  of  the  defendant  sliall  be  ,  nrnvisinim  nf  thiq  cndp  re- 
issued bv  the  justice,  on  receiving  an  athdavit  niais.  All  tne  provisions  01  tnis  COUe  re 
by  or  on  behalf  of  the  plaintiff,  showing  the  lating  to  attachment  process  apply  to 
same  facts  as  are  required  to  be  shown  by  the  actions  against  the  owner  to  recover  dam- 
affidavit  specified  in  section  one  hundred  ana  ,.''...  j  v  t  •  „ 
twenty-one  of  this  act."  When  §  866  was  en-  ages  tor  injuries  caused  by  trespassing 
acted  in  1372,  (1)  "must"  was  substituted  for  animals,  subject  only  to  the  modification, 
"shall,"  (2)  "at^  the  time  of,  or  after  issui^ng  ^]^^.  instead  of  filing  the  affidavit  required 
summons  and  before  answer,  was  m.serted  atter  '  .  »  _  ii,  i  • 
"justice,"  and  (3)  "538  of  this  code"  was  sub-  by  this  section  and  §  o38,  ante,  the  plam- 
stituted  for  "one  hundred  and  twenty-one  of  this  tiff  is  entitled  to  the  issuance  of  a  writ  of 

^ct-"  t  V     ot  *      -.oft-i     «    ifiQ.   „r.  attachment  against  the  property  of  the  de- 

2.  Amendment    by    Stats.    1901,    p.    169;    un-  ^       j       ,  °^-,-         ,  .      ^      ^,    ■     ,      .    ^• 
constitutional.    See  note  ante,  §  5.  f  endant  upon  filing  his  complaint  stating  a 

3.  Amended  by  Stats.  1907,  p.  880j  the  code  cause  of  action,  verified   according  to  law. 
commissioner  saying,   "The  amendment  omits 'and  Wio-mnrp  v    Riipll    ^'^'>  Tnl    144.-  HA  Van    fiOn 
before     answer'     after     the    word     'summons,'     to  Wlgmore  V.±iuell,  i^..l^al.  14i,  04^-30.  t>UU. 

bring  the  section  into  harmony  with  §  537."  Lien  as  afltecting  attachment.     Under  the 

4.  Amended    by    Stats.    1911.    p.    399,     (1)  act  of  March  7,  1S7S,  a  plaintiff  who  seeks 
striking  out  the  commas  after  the  words  ''after  recover  for  injuries  caused  by  trespass- 
and      summons,      and    (2)    after   the    latter   word,  ~^  ...  •'      .,         .        ,       „  /.  ^      , 
adding  the  phrase,    "in   actions   in   which   the   sum  ing  animals   is   not   deprived   01   his   remedy 
claimed  exclusive  of  interest  exceeds  ten  dollars."  by  attachment  thereafter,  upon  the  ground 

Validity  of  attachment.     Where  the  de-  that   he    has    a   continuing   lieu    upon    the 

fendant  absents  himself  so   that  summons  animals.    Wigmore  v.  Buell,  122   Cal.   144; 

cannot  be  served  on  him  before  return-day  54  Pac.  600. 
thereof,  and  it  is  returned  not  served,  the 

§  867.  Attachment,  undertaking  on.  Exceptions  to  sureties.  Before 
issuing  the  writ,  the  justice  must  require  a  written  undertaking  on  the  part 
of  the  plaintiff,  with  tw^o  or  more  sufficient  sureties,  in  a  sum  not  less  than 
fifty  nor  more  than  three  hundred  dollars,  to  the  effect  that  if  the  defend- 
ant recovers  judgment,  the  plaintiff  v^ill  pay  all  costs  that  may  be  awarded 
to  the  defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  specified  in  the  undertaking.  At  any 
time  after  the  issuing  of  the  attachment,  but  not  later  than  five  days  after 
notice  of  its  levy,  the  defendant  may  except  to  the  sufficiency  of  the  sureties. 
If  he  fails  to  do  so,  he  is  deemed  to  have  waived  all  objections  to  them. 
When  excepted  to  they  must  justify  in  the  manner  and  within  the  time 
provided  in  section  five  hundred  and  thirty-nine,  otherwise  the  justice  must 
order  the  writ  of  attachment  vacated. 

Undertaking    on   attachment,    generally.     Ante,  3.   Amended  by  Stats.  1907,  p.   8S0,    (1)   sub- 

§  5:{9.  stituting    "recovers"    for    "recover"    before    "judg- 

Legislation  8  867.     1.  Enacted  March  11,  1872;  ment,"    and    (2)    adding   the  last   three   sentences; 

re-enactment   of   Practice   Act,    §   553,   as   amended  the  code  commissioner  saying,     The  last  sentence 

bv  Stats    1871-72    p    75  ''^    added,    to    provide    for    the    exception    to,    and 

2.   Amendment  'by    Stats.    1901,    p.    169;    un-  justification    by,    sureties    or    undertakings    in    at- 

constitutional.    See  note  ante,  §  5.  tachments  in  justice  s  courts. 


997 


UNDERTAKING CODE  PROVISIONS  APPLICABLE. 


§§868,  8G9 


Undertaking  Is  necessary.  The  attach- 
tnciit  is  uiiiUitliori/,('(l  ami  void,  uiilcsa  is- 
sued in  substantial  conl'orniitv  with  the 
provisions  of  the  statute,  ini-lu(lin<x  the 
undertakiiif,'  requireil  to  be  given.  Jlislcr 
V.  Carr,  154  Cal.  0-11. 

Validity  of  undertaking.  The  attach- 
ment bond  is  the  antecedent  of  the  at- 
tachment, and  aceomi)anies,  in  point  of 
time,  the  affiilavit,  which  must  be  mailc 
before  the  writ  is  issued;  the  bond  de- 
pends for  its  lefjal  elTeet  ujjon  the  writ, 
and  if  no  writ  is  issued,  the  bond  is  null 
and  void;  it  can  have  no  effect,  except  as 
connected  with  the  attachment,  and  they 
must  exist  together;  hence,  an  attachment 
bond,  executed  after  the  writ  has  been 
levied,  and  the  attachment  dismissed,  is 
void.  Benedict  v.  Bray,  2  Cal.  251;  56 
Am.  Dec.  332.  Where  a  justice  issues  an 
attachment,  and  takes  a  bond  in  a  suit 
for  a  sum  exceeding  his  jurisdiction,  the 
proceedings  are  void,  and  no  action  lies 
on  the  bond.  Benedict  v.  Bray,  2  Cal.  251; 
56  Am.  Dec.  332. 

Appeal  bond.  An  undertaking  on  at- 
tachment,  given   months   prior   to   the   ap- 


{leal,  and  securing  damages  and  costs  on 
ajtpeal,  is  not  the  bond  required  by  stat- 
ute for  costs  on  appeal.  ytini|)SOu  <.'om- 
jiuting  Scale  Co.  v.  Superior  Court,  12  Cal. 
A  pp.  536;  107  Pac.  1013. 

CODE    COMMISSIONERS'    NOTE.     The    pro- 

viKion  tl:,it  tlic  justice  iiiUKt  ri'ijuirc  two  or 
more  sccuritii's,  in  a  KUm  not  I<-h8  than  fifty 
nor  moll-  than  tliri'c  liundrcil  dollarR,  is  new. 
If  a  juKlicc  order  llie  issuance  of  an  attach- 
ment, and  takes  bond  in  an  action  for  u  sum 
in  ex<'ess  of  his  jurisdiction,  the  proceedinKS  aro 
void,  and  no  suit  can  tje  maintained  upon  the 
bond.  JJeiicdict  v.  Hrav,  2  Cal.  2.04;  .'>6  Am. 
Dec.  332.  Under  §  .5.'j3  of  the  old  Practice  Act, 
which  did  not  fix  the  amount  of  the  bond  nor 
contain  the  words  "not  exceeding  the  sum  speci- 
fied in  the  undertakinj;,"  it  was  held  that  the 
undertakinK  was  recjuired  to  be  to  the  effect 
that  the  plaintiff  would  pay  costs  and  all  dam- 
ages, etc.,  without  any  limitation  whatever  as 
to  amount;  and  if  the  undertaking  had  been 
conditioned  to  pay  all  damages  not  exceeding  a 
certain  sum,  it  would  have  been  therefore  un- 
authorized and  void,  as  not  conforming  to  the 
statute.  Hisler  v.  Carr,  34  Cal.  640.  The  addi- 
tion of  the  words,  "not  exceeding  the  sum  speci- 
fied in  the  undertaking,"  of  course  modify  this 
decision.  An  attachment  is  unauthorized  and 
void,  unless  issued  in  substantial  conformity 
with  the  provisions  of  the  statute.  Hisler  v. 
Carr,  34  Cal.  646;  Homan  v.  lirinckcrhoff,  1 
Denio  (N.  Y.),  184;  Davis  v.  Marshall,  14  Barb. 
(N.  y.)  96. 


§  868.  Writ  of  attachment,  substance  of.  Officer  may  take  an  undertak- 
ing instead  of  levying.  The  writ  may  be  directed  to  the  sheriff  or  any 
constable  of  the  county  in  which  such  justice  court  is  situate,  and  must  re- 
quire him  to  attach  and  safely  keep  all  the  property  of  the  defendant  within 
his  county,  not  exempt  from  execution,  or  so  much  thoroof  as  may  be  suffi- 
cient to  satisfy  the  plaintiff's  demand,  the  amount  of  which  must  be  stated  in 
conformity  with  the  complaint,  unless  the  defendant  give  him  security,  by 
the  undertaking  of  two  sufficient  sureties,  in  an  amount  sufficient  to  satisfy 
such  demand,  besides  costs;  in  which  case,  to  take  such  undertaking. 

Several  writs  may  be  issued  at  the  same  time  to  the  sheriffs  or  constables 
of  different  counties ;  provided,  that  where  a  writ  of  attachment  issued  by  a 
justice  of  the  peace  is  to  be  served  out  of  the  county  in  which  it  was  issued, 
the  writ  of  attachment  shall  have  attached  to  it  a  certificate  under  seal,  by  the 
county  clerk  of  such  county,  to  the  eft'ect  that  the  person  issuing  the  same 
was  an  acting  justice  of  the  peace  of  said  county,  at  the  date  of  the  writ. 


Contents  of  writ.      Compare  ante,  §  540. 

Legislation  8  868.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  5.54.      Compare  infra. 

2.  Amended  by  Stats.  1905,  p.  208,  (1)  in 
first  clause,   substituting  "in  which  such  justice 


court  is  situate"  for  "or  the  sheriff  of  any  other 
county";    (2)    addinc;  the  second  sentence. 

3.  'Amended  by  Stats.  1915.  p.  112,  (1)  mak- 
ing a  paragraph  of  second  sentence,  and  (2)  in- 
serting therein  "or  constables,"   after  "sheriffs." 


§  869.     Certain  provisions  apply  to  all  attachments  in  justices'  courts. 

The  sections  of  this  code  from  section  five  hundred  and  forty-one  to  sec- 
tion five  hundred  and  fifty-nine,  both  inclusive,  are  applicable  to  attach- 
ments issued  in  justices'  courts,  the  word  "constable"  being  substituted  for 
the  word  "sheriff,"  whenever  the  writ  is  directed  to  a  constable,  and  the 
word  "justice"  being  substituted  for  the  Avord  "judge." 


Attachment  of  property  in  superior  court. 

1.  Property  attachable.     §541. 

2.  How  sheriff  attaches.     §§542,543. 

3.  Garnishee's  liability.     §  544. 

4.  Examination  of  defendant  and  garnishee. 
S  545. 


5.  Inventory,  return,  etc.    §  546. 

6.  Perishables.     §  54  7. 

7.  Other  property,  immediate  sale  of.    5  548. 

8.  Claim  by  third  person.     §  549. 

9.  Realization    of    attached    property    after 
Judgment  for  plaintiff.    §  550. 


§§  870,  871   justices'  courts — claim  and  delivery — default  judgment.     998 

10.  Collecting  balance  by  sheriff.     §551.  (based  on  Practice  Act,   §  555),  substituting   (1) 

11.  Proceedings,  execution  uusatislied.    §552.  "code"   for  "act,"    (2)    "541   to   section   559"   for 

12.  Effect  of  judgment  for  defendant.    §  553.  "one    hundred    and    twenty-four    to    section    one 

13.  Discharge   of   attachment.     §§  554-558.  hundred  and  forty-one,"  and   (3)   "are"  for  "shall 

14.  Sheriff's  return.     §  559.  be"  before  "applicable." 

15.  Keleasing  attachment.     §§559,   560.  „^-^t,    ^^■,,r-.^-rr,„T^-^T „~    _ 

^         '  CODE    COMMISSIONERS'   NOTE.      See  notes 

Legislation  8  869.      Enacted    March    11,    1873        to  §§  541-559,  ante,  inclusive. 

ARTICLE  III. 

CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

§  870.     How  claim  and  delivery  enforced. 

§  870.  How  claim  and  delivery  enforced.  In  an  action  to  recover  pos- 
session of  personal  property,  the  plaintiff  may,  at  the  time  of  issuing  sum- 
mons or  at  any  time  thereafter  before  answer,  claim  the  delivery  of  such 
property  to  him ;  and  the  sections  of  this  code  from  section  five  hundred 
and  ten  to  section  five  hundred  and  twenty-one,  both  inclusive,  are  appli- 
cable to  such  claim  when  made  in  justices'  courts,  the  powers  therein  given 
and  duties  imposed  on  sheriffs  being  extended  to  constables,  and  the  word 
"justice"  substituted  for  "judge." 

Claim  and   delivery   of   personalty  in  superior  8.  Breaking  open  building,  etc.  §  517, 

court.  9.   Property,  how  kept.    §  518. 

1.  Affidavit  for  claim  and  delivery.    §  510.  10.   Claim  by  third  person.    §  519. 

2.  Requisition    to    sheriff    to    take    property  n.   Sheriff  to  file  notice,  affidavit,  etc.    §  520. 
claimed.     §  511.  12.  Actions  on  undertaking.    §  521  (repealed 

3.  Undertaking  by  plaintiff.    §  512.  by  Code  Amdts.  1873-74,  p.  306). 

4.  Exception  to  sureties  by  defendant.  §  513.  .....       „  „„«       ^^  ■,  -..^       ,  ^^^^ 

5.  Defendant  claiming  redelivery.     §514.  Legislation  §  870.      Enacted  March  11,  1873. 

6.  Justification      of      defendant's      sureties.  CODE    COMMISSIONERS'   NOTE.      See   notes 

^  y^X     ,-.=     ..-  ,  ..•  e  r-,-,  to  §§  510-521,  ante,  inclusive. 

7.  Qualification  of  sureties.    §  516.  *'  '         ' 

CHAPTER  V. 

JUDGMENT  BY  DEFAULT  IN  JUSTICES'  COURTS. 
§  871.     Judgment  when  defendant  fails  to  appear.         §  872.    Judgment  against  defendant  on  demurrer, 

§  871.  Judgment  when  defendant  fails  to  appear.  If  the  defendant  fail 
to  appear,  and  to  answer  or  demur  within  the  time  specified  in  the  sum- 
mons, then,  upon  proof  of  service  of  summons,  the  following  proceedings 
must  be  had: 

1.  If  the  action  is  based  upon  a  contract,  and  is  for  the  recovery  of  money, 
or  damages  only,  the  court  must  render  judgment  in  favor  of  plaintiff  for 
the  sum  specified  in  the  summons. 

2.  In  all  other  actions  the  court  must  hear  the  evidence  offered  by  the 
plaintiff,  and  must  render  judgment  in  his  favor  for  such  sum  (not  exceed- 
ing the  amount  stated  in  the  summons),  as  appears  by  such  evidence  to  be 
just. 

Default  judgment,  generally.    Ante,  §  585.  Construction  of  section.     This  section  is 

Legislation  §  871.    1.  Enacted  March  11,  1873,  controlled  by  §  S74,  post,  which  is  general 

(1)     the     introductory    paragraph    then     reading,  in  its  terms.    Hall  V.   Kerrigan,   135   Cal.  4; 

"When  the  defendant  fails  to   appear  and  answer  gg  Pac    868 

or  demur,   at   the  time,   specified   in   the   summons,  t\   -e      -it.     i              j           -u              a       t    j?      i^     • 

or  within   one   hour   thereafter,    then,    upon   proof  Uelault     IS     made     wnen.      A     detault     13 

of    service   of   the    summons,    the   following   pro-  made  when  the  defendant  fails  to  answer 

ceedings  must  be  had  "  and  (2)   subds    1  and  2  ^j.  aemur,  as  described  in  §  850,  ante,  and 

reading   as   at    present,    except    that    subd.    2    had  ■       ,  i  •         ,        ,            -trr    •                        ^,    ■  i      S        t 

the  article  "a"  before  the  word  "sum."  "^   this   chapter.    Weimmer  v.    Sutherland, 

3.  Amended  by  Code  Amdts.  1875-76,  p.  100,  74  Cal.  341;  15  Pac.  849. 

(1)   changing  the  introductory  paragraph  to  read,  Right  tO   judgment  by   default.      Upon    a 

If  the  defendant   fails  to  appear  and  answer,  or  /«•    •       j.     ^  \l             ^      ^  ,  •                       j}        j.- 

demurs    at    the    time    specified    in    the    summons,  sulhcient  statement  ot  his  cause  of  action, 

then,  upon  proof  of  service  of  summons,  the  fol-  the   plaintiff    is    entitled   to   juilgment   for 

lowing   proceedings   must   be   had,"   and    (2)    in  ^he  amount  demanded,  where  the  defend- 

subd.  2,  omitting     a     before     sum.  ^    y    ■-,      ,                               t                       ^i 

3<  Amended  by  Code  Amdts.  1880,  p.  113.  ant  lails  to   appear  and  answer  the   com- 


999 


JUDGMENT  ON   DEMURRER — TIME  OF  TRIAL. 


§§872,873 


scribed  time:  the  justice  may  enter  a  de- 
fault  ju(lf,'nient  after  a  delay  of  eight 
years  from  the  return  of  service  of  sum- 
mons. Hall  V.  Justice's  Court,  5  Cal.  App. 
133;  87Pac.  870. 

Entry  of  non-appearance  in  docket.  See 
notes  post,  §§  911,  'J  12. 

Default  judgment  rendered  by  justice  of  the 
peace  ou  process  served  less  than  required  time 
as  void  or  voidable.    See  note  8  Ann.  C'as.  1142. 

CODE  COMMISSIONEKS'  NOTE.  See  note  to 
§  890,  pobt;   O'Connor  v.  Blake,  29  Cal.  316. 


plaint.  Schroeder  v.  Wittram,  66  Cal.  636; 
6  Pac.  737.  Where  the  return  affords  some 
evidence  that  the  copy  of  the  complaint 
served  was  a  copy  of  the  complaint  in  the 
action,  the  court  will  not  say  that  the 
proof  in  this  regard  was  not  sufficient  to 
authorize  the  justice  to  render  a  judgment 
by  default.  Cardwell  v.  Sabichi,  59  Cal. 
490. 

Default  judgment  after  eight  years. 
This  section  does  not  require  a  judgment 
by  default  to  be  entered  within  any  prc- 

§872.  Judgment  against  defendant  on  demurrer.  In  the  following 
cases  the  same  proceedings  must  be  had,  and  judgment  must  be  rendered 
in  like  manner,  as  if  the  defendant  had  failed  to  appear  and  answer  or 
demur : 

1.  If  the  complaint  has  been  amended,  and  the  defendant  fails  to  answer 
it  as  amended,  within  the  time  allowed  by  the  court ; 

2.  If  the  demurrer  to  the  complaint  is  overruled,  and  the  defendant  fails 
to  answer  at  once  ; 

3.  If  the  demurrer  to  the  answer  is  sustained,  and  the  defendant  fails  to 
amend  the  answer  within  the  time  allowed  by  the  court. 

Compare   ante,  §  858. 

Legislation  g  872.      Enacted  Marck  11,  1873. 

Defendant  must  answer  at  once.  Under 
this  section,  and  §  S.38,  ante,  the  defend- 
ant may  answer  forthwith,  upon  the  over- 
ruling of  his  demurrer;  but  if  he  fails  to 
answer  "at  once,"  the  justice  is  authorized, 
if  no  issue  of  fact  is  presented  for  trial, 
to  render  judgment  by  default  in  favor  of 
the  plaintiff.  Stewart  v.  Justice's  Court, 
109  Cal.  616;  42  Pac.  1.58. 

Defendant  cannot  claim  time  to  answer. 
There  is  no  provision  in  the  code  requiring 
a  justice  of  the  peace  to  allow  the  de- 
fendant any  time  within  which  to  answer 
the  complaint,  where  his  demurrer  is  over- 
ruled, or  to  give  to  him  any  notice  of  that 
fact.  Stewart  v.  Justice's  Court,  109  Cal. 
616;  42  Pac.  158. 

Effect  of  default  judgment  as  to  one 
defendant.  In  an  action  in  a  justice's 
court  against  a  number  of  stockholders  of 


a  corporation  to  enforce  their  individual 
liability  for  the  indebtedness  of  the  corpo- 
ration to  the  plaintiff,  there  may  possibly 
be  as  many  diverse  issues  made,  and  as 
many  trials  had,  resulting  in  several  judg- 
ments, as  there  are  several  defendants; 
and  proof  made  and  judgment  rendered 
against  a  defaulting  defendant  cannot  op- 
erate as  a  dismissal  of  the  action  against 
answering  defendants,  nor  affect  the  juris- 
diction of  the  court  to  try  the  cause  as 
to  them.  Grimwood  v.  Barry,  118  Cal.  274; 
50  Pac.  430. 

Default  judgment,  what  constitutes.  A 
judgment  entered  after  a  demurrer  to  the 
complaint  has  been  overruled  and  the  de- 
fendant has  failed  to  answer,  may  be 
treated  as  a  default  judgment.  Fast  v. 
Young,  19  Cal.  App.  577;  126  Pac.  854. 

CODE  COMMISSIONERS'  NOTE.  See  §§  851- 
860,  inclusive,  ante,  and  notes. 


CHAPTER  VI. 

TIME    OF    TRIAL    AND    POSTPONEMENTS    IN    JUSTICES'   COURTS. 


§  873.     Time  "when  trial  must  be  commenced. 
§  874.     When  court  may,  of  its  own  motion,  post- 
pone trial. 
§  875.     Postponement  by  consent. 


§  876.     Postponement  upon  application  of  a  party. 

§  877.  A'o  continuance  for  more  than  ten  days  to 
be  granted,  unless  upon  filing  of  under- 
taking. 


§  873.  Time  'when  trial  must  be  commenced.  Unless  postponed,  as  pro- 
vided in  this  chapter,  or  unless  transferred  to  another  court,  the  trial  of  the 
action  must  commence  at  the  expiration  of  one  hour  from  the  time  specified 
in  the  notice  mentioned  in  section  eight  hundred  and  fifty,  and  the  trial 
must  be  continued,  without  adjournment  for  more  than  twenty-four  hours 
at  any  one  time,  until  all  the  issues  therein  are  disposed  of. 


§§  87i-876     TIME  or  trial  and  postponements  in  justices'  courts. 


1000 


with  trial.  If  a  justice  of  the  peace 
should  refuse  to  proceed  with  the  trial  of 
a  case  as  required  by  this  section,  the 
remedy  would  be,  to  obtain  a  writ  of 
mandate  compelling  him  forthwith  to  pro- 
ceed with  such  trial;  but  upon  the  service 
of  such  a  writ  he  would  still  have  a  right 
to  entertain  a  motion  for  a  further  con- 
tinuance, and  if  sufficient  cause  were 
shown  therefor  in  accordance  with  the  pro- 
visions of  the  code,  he  would  be  justified 
in  granting  it.  Whaley  v.  King,  92  Cal. 
431;  2SPac.  579. 

CODE  COMMISSIONERS'  NOTE.    See  §§  833, 
859,  876,  ante. 


Legislation  §  873.     1.  Enacted  March  11,  1873. 

2.  Amended  by  Code  Amdts.  1875-76.  p.  100, 
substituting  "notice  mentioned  in  section  eight 
hundred  and  fifty"  for  "summons  for  the  ap- 
pearance of  defendant." 

Notice  of  hearing.  The  provision  in  this 
section,  that  the  trial  must  commence  one 
hour  from  the  time  specified  in  the  notice 
referred  to,  implies  that  such  notice  should 
be  given  in  writing  and  form  part  of  the 
record,  and  that  there  should  be  an  entry 
thereof,  and  also  of  the  mode  in  which  it 
is  given,  in  the  justice's  docket,  so  that 
there  may  be  affirmative  evidence  of  his 
authority  to  render  a  judgment.  Jones  v. 
Justice's  Court,  97  Cal.  523;  32  Pac.  575. 

Mandamus  to  compel  justice  to  proceed 

§874.  When  court  may,  of  its  own  motion,  postpone  trial.  The  court 
may,  of  its  own  motion,  postpone  the  trial — 

1.  For  not  exceeding  one  day,  if,  at  the  time  fixed  by  law  or  by  an  order 
of  the  court  for  the  trial,  the  court  is  engaged  in  the  trial  of  another  action ; 

2.  For  not  exceeding  two  days,  if,  by  an  amendment  of  the  pleadings,  or 
the  allowance  of  time  to  make  such  amendment  or  to  plead,  a  postponement 
is  rendered  necessary ; 

3.  For  not  exceeding  three  days,  if  the  trial  is  upon  issues  of  fact,  and  a 

jury  has  been  demanded. 

Ante,   §§  858,       visions  of   §§858,  871,  872,  ante.    Hall  v. 
Kerrigan,  135  Cal.  4;  66  Pac.  868. 

Divestiture  of  jurisdiction.  The  grant- 
ing, by  a  justice's  court,  of  a  continuance 
for  a  few  hours,  at  the  defendant's  re- 
quest, the  plaintiff  being  ready  and  de- 
sirous to  proceed  with  the  trial,  if  it  be  an 
error  against  the  plaintiff,  cannot  operate 
as  a  discontinuance  of  the  action  to  the 
plaintiff's  prejudice;  nor  can  any  error  in 
refusing  a  further  continuance  upon  the 
affidavit  of  the  defendant  divest  the  court 
of  jurisdiction.  Disque  v.  Herrington,  139 
Cal.  1;  72  Pac.  336. 

CODE  COMMISSIONERS'  NOTE.  See  §§833, 
859,  876,  ante. 


Amendment    of   pleadings,    etc. 
859. 

Legislation  §  874.      Enacted  March  11,  1873. 

Construction  of  section.  The  provision 
in  this  section,  by  which  the  court  may 
postpone  the  trial  if  postponement  is  neces- 
sary by  reason  of  allowance  of  time  "to 
plead,"  must  have  been  intended  to  have 
some  effect,  and  must  refer  to  a  pleading 
that  has  not  yet  been  made  or  filed;  and 
it  implies  that  the  court  may  allow  a  party 
time,  not  to  exceed  two  days,  within  which 
to  file  an  original  pleading,  when  he  has 
no  such  pleading  on  file;  being  general  in 
its    terms,    this    section    controls    the    pro- 

§  875.  Postponement  by  consent.  The  court  may,  by  consent  of  the 
parties,  given  in  writing  or  in  open  court,  postpone  the  trial  to  a  time 
agreed  upon  by  the  parties. 

Legislation  §  875.      Enacted  March  11,  1872.  859,  876,  ante. 

CODE   COMMISSIONERS'  NOTE.     See  §§833, 

§  876.  Postponement  upon  application  of  a  party.  The  trial  may  be 
postponed  upon  the  application  of  either  party,  for  a  period  not  exceeding 
four  months: 

1.  The  party  making  the  application  must  prove,  by  his  ow^n  oath  or 
otherwise,  that  he  cannot,  for  want  of  material  testimony,  which  he  ex- 
pects to  procure,  safely  proceed  to  trial,  and  must  show  in  what  respect 
the  testimony  expected  is  material,  and  that  he  has  used  due  diligence  to 
procure  it,  and  has  been  unable  to  do  so ; 

2.  If  the  application  is  on  the  part  of  the  plaintiff,  and  the  defendant  is 
under  arrest,  a  postponement  for  more  than  three  hours  discharges  the 
defendant  from  custody,  but  the  action  may  proceed  notwithstanding,  and 


1001  CONTINUANCES    UPON    CONDITION — ISSUES,    DEFINED.         §§877,878 

the  defendant  is  subject  to  arrest  on  execution,  in  the  same  manner  as  if 
he  had  not  been  disoharsed ; 

3.  If  the  application  is  on  the  part  of  a  defendant  under  arrest,  before 
it  can  be  granted  he  must  execute  an  undertaking,  with  two  or  more  suffi- 
cient sureties,  to  be  approved  by,  and  in  a  sum  to  be  fixed  by,  the  justice, 
to  the  effect  that  he  will  render  himself  amenable  to  the  process  of  the 
court  during  the  pendency  of  the  action,  and  to  such  as  may  be  issued  to 
enforce  the  judgment  therein;  or  that  the  sureties  will  pay  to  the  plaintiff 
the  amount  of  any  judgment  which  he  may  recover  in  the  action,  not  ex- 
ceeding the  amount  specified  in  the  undertaking.  On  filing  the  under- 
taking specified  in  this  subdivision,  the  justice  must  order  the  defendant 
to  be  discharged  from  custody; 

4.  The  party  making  the  application  must,  if  required  by  the  adverse 
party,  consent  that  the  testimonj^  of  any  witness  of  such  adverse  party, 
w^ho  is  in  attendance,  may  be  then  taken  by  deposition  before  the  justice, 
and  that  the  testimony  so  taken  may  be  read  on  the  trial,  with  the  same 
effect,  and  subject  to  the  same  objections,  as  if  the  witness  was  produced; 

— But  the  court  may  require  the  party  making  the  application  to  state, 
upon  affidavit,  the  evidence  which  he  expects  to  obtain;  and  if  the  adverse 
party  thereupon  admits  that  such  evidence  would  be  given,  and  that  it 
be  considered  as  actually  given  on  the  trial,  or  offered  and  overruled  as 
improper,  the  trial  must  not  be  postponed. 

Postponement.  Practice   before    justice   for   obtaining   of   con- 

1.  Generally.    Ante,  §  595.  tinuance  for  illness  of  party.    See  note  42  L.  R.  A. 

2.  Costs   of.     Post,  §  1029.  (N.  S.)  669. 

Arrest  and  bail.    Ante,  §§  478  et  seq.  ^^^^  COMMISSIONEES'  NOTE.     See  §§  833. 

Legislation  §  876.      Enacted  Marck  11,  1872.  859,  ante. 

§  877.  No  contiimance  for  more  than  ten  days  to  be  granted,  unless 
upon  filing  of  undertaking.  No  adjournment  must,  unless  by  consent,  be 
granted  for  a  period  longer  than  ten  days,  upon  the  application  of  either 
party,  except  upon  condition  that  such  party  file  an  undertaking,  in  an 
amount  fixed  by  the  justice,  with  two  sureties,  to  be  approved  by  the  jus- 
tice, to  the  effect  that  they  will  pay  to  the  opposite  party  the  amount  of 
any  judgment  which  may  be  recovered  against  the  party  applying,  not 
exceeding  the  sum  specified  in  the  undertaking. 

Legislation  §  877.     Enacted    March    11.    1873  "undertaking,"   (.3)   inserting  "two"  before  "sure- 

(based  on  Practice  Act,   §   585),    (1)    substituting  tie-s."   and    (4)    addine  at   end  of  section   "not  ex- 

"must,     unless    by    consent"    for    "shall,"    (2)    in-  ceeding  the  sum  specified  in  the  undertaking." 
sertiug  "in  an  amount  fixed  by  the  justice"  after 

CHAPTER  VII. 

TRIALS  IN  JUSTICES'  COURTS. 

§  878.  Issue  defined,  and  the  different  kinds.  §  884.  Either  party  failing  to   appear,   trial   may 

§  879.  Issue  of  law,  how  raised.  proceed   at   request   of  other  party. 

§  880.  Issue  of  fact,  how  raised.  §  885.  Challenges  to  jurors. 

§  881.  Issue  of  law,  how  tried.  §  886.  Manner  of  pleading  a  written  instrument. 

§  882.  Issue  of  fact,  how  tried.  §  837.  Complaint,     when     accompanying     instru- 

§  883.  Jury,  how  waived.  ment  deemed  genuine. 

§  878.  Issue  defined,  and  the  different  kinds.  Issues  arise  upon  the 
pleadings  when  a  fact  or  conclusion  of  law  is  maintained  by  the  one  party 
and  is  controverted  by  the  other.     They  are  of  two  kinds: 

1.  Of  law;  and, 

2.  Of  fact. 


§§  879-885  TRIALS  IN  justices'  courts.  1002 

Compare  §§  878-880  with  §§  588-590,  ante.  answer  is  filed,  an  issue  of  fact  arises  aa 
Legislation  §  878.  Enacted  March  11,  1S73.  to  all  allegations  in  the  complaint  contro- 
Title  to  land  is  involved  when.  See  note  verted  by  the  answer,  and  "upon  any  new 
post,  §  976.  matter  in  the  answer."  Purcell  v.  Richard- 
Issue   of   fact   arises   when.     When    the  son,  164  Cal.  150;  128  Pac.  31. 

§  879.  Issue  of  law,  how  raised.  An  issue  of  law  arises  upon  a  demurrer 
to  the  complaint  or  answer,  or  to  some  part  thereof. 

Identical  statute.    Ante,  §  589. 

Legislation  §  879.     Enacted  March  11,  1873. 

§  880.    Issue  of  fact,  how  raised.     An  issue  of  fact  arises — 

1.  Upon  a  material  allegation  in  the  complaint  controverted  by  the  an- 
swer; and, 

2.  Upon  new  matter  in  the  answer,  except  an  issue  of  law  is  joined 
thereon. 

Identical  statute.    Ante,  §  590. 

Legislation  §  880.     Enacted  March  11,  1873. 

§  881.  Issue  of  law,  how  tried.  An  issue  of  law  must  be  tried  by  the 
court. 

Compare  ante,  §  591. 

Legislation  §  881.     Enacted  March  11,  1873. 

§  882.  Issue  of  fact,  how  tried.  An  issue  of  fact  must  be  tried  by  a 
jury,  unless  a  jury  is  waived,  in  which  case  it  must  be  tried  by  the  court. 

Compare  ante,  §  592.  Number  of  jurors  necessary  to  verdict  in  jus- 

Legislation  §  882.     Enacted  March  11,  1873.  ^i^^'^  court.    See  note  43  L.  R.  A.  51. 

§  883.     Jury,  how  waived.     A  jury  may  be  waived^ 

1.  By  consent  of  parties,  entered  in  the  docket; 

2.  By  a  failure  of  either  party  to  demand  a  jury  before  the  commence- 
ment of  the  trial  of  an  issue  of  fact ; 

3.  By  the  failure  of  either  party  to  appear  at  the  time  fixed  for  the  trial 
of  an  issue  of  fact. 

Waiver  of  jury.    Compare  ante,  §  631. 
Legislation  §  883.     Er.acted  March  11,  1S72. 

§  884.    Either  party  failing  to  appear,  trial  may  proceed  at  request  of 

other  party.     If  either  party  fails  to  appear  at  the  time  fixed  for  trial,  the 

trial  may  proceed  at  the  request  of  the  adverse  party. 
Compare  ante,  §  594.  render  a  judgment  in  favor  of  plaintiff  if 

Legislation  §  884.     Enacted  March  11,  1873.  the    answer   denies   the   averments    of    the 

Evidence  necessary.     Where  the  defend-       complaint:   such  judgment  would  be  erro- 

ant  fails  to  appear  at  the  trial,  the  justice       ^^^'^^^  Curtis  v.  Superior  Court,  63  Cal.  435. 

may  proceed  at  the  request  of  the  plaintiff,  CODE  COMMISSIONERS'  NOTE.    See  note  to 

but  he  should  not,  without  any  evidence,       §  ^'''^'  '''^*^- 

§  885.  Challenges  to  jurors.  The  challenges  are  either  peremptory  or 
for  cause.  Each  party  is  entitled  to  three  peremptory  challenges.  Either 
party  may  challenge  for  cause  on  any  grounds  set  forth  in  section  six  hun- 
dred and  two.     Challenges  for  cause  must  be  tried  by  the  justice. 

Challenges.    Compare  ante,  §§  601,   602.  sixty-two.      Challenges  for  cause  shall  be  tried  by 

•  I..-       oooc       TT.        ij-«f       u-11     -.cjiro.  th^   justice   in    a   summary   manner,    who   may   ex- 

Legislation  S  885.      Enacted   March    11,    1873;  ^^^^^  jj^^   -^^.^^  challenged,   and  witnesses." 
based  on  Practice  Act,   §   590,  which  read  :      hither 

party   may   challenge   the  jurors.      The   challenges  CODE    COMMISSIONERS'   NOTE.      The    man- 
shall   be    either   peremptory,    or   for   cause.      Each  ner   of   summoninK  and   impaneling  juries   in  jus- 
party   shall  be   entitled  to  three  peremptory   chal-  tices'   courts  is  provided  for  in  §§  230,  231,   232, 
lenges.      Either  party  may  challenge  for  cause,  on  251,  of  this  code, 
any  grounds  set  forth  in  section  one  hundred  and 


1003 


WRITTEN  INSTRUMENT — COMPLAINT — JUDGMENTS.  §§  886-889 


§  886.  Manner  of  pleading  a  written  instrument.  When  the  cause  of 
action  or  counterclaim  arises  upon  an  account  or  instrument  for  the  pay- 
ment of  money  only,  the  court,  at  any  time  before  the  trial,  may,  by  an 
order  under  his  hand,  require  the  original  to  be  exhibited  to  the  inspection 
of,  and  a  copy  to  be  furnished  to,  the  adverse  party,  at  such  time  as  may 
be  fixed  in  the  order ;  or,  if  such  order  is  not  obeyed,  the  account  or  instru- 
ment cannot  be  given  in  evidence. 

the  court,  and  to  state  that  there  is  due  to  him 
thereupon,  from  the  adverse  party,  a  Bpecified 
sum,  which  he  claims  to  recover  or  set  off.  The 
court  may,  at  the  time  of  the  pleading,  require 
that  the  original  account  or  instrument  bo  ex- 
hibited to  the  inspection  of  the  adverse  party,  and 
a  copy  to  be  furnished;  or  if  it  be  not  so  ex- 
hibited and  a  copy  furnished,  may  prohibit  its 
being  afterwards  given  in   evidence." 

§887.     Complaint,  when  accompanying  instrument  deemed  genuine.     If 

the  complaint  of  the  plaintiff,  or  the  an.swer  of  the  defendant,  contains  a 
copy,  or  consists  of  the  oriizinal  of  the  written  obligation  upon  which  the 
action  is  brought  or  the  defense  founded,  the  genuineness  and  due  execu- 
tion of  such  instrument  are  deemed  admitted,  unless  the  answer  denying 
the  same  is  verified,  or  unless  the  plaintiff,  within  two  days  after  the  ser- 
vice on  him  of  such  ansAver,  files  with  the  justice  an  affidavit  denying  the 
same,  and  serves  a  co-py  thereof  on  the  defendant. 


Order  for  inspection.    Post,  §  1000. 
Delivering  copy  of  account.    See  ante,  §  454. 

Legislation  S  886.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  ,57G,  which  read:  "When 
the  cause  of  action  or  counterclaim  arises  upon 
an  account  or  instrument  for  the  payment  of 
money  only,  it  shall  be  sufficient  for  the  party  to 
deliver   a   copy   of   the   account   or  instrument   to 


Compare   ante,  §§447,    448,    853. 
Written  instrument,  denial  of,  under  oath.    See 
ante,  §§  447,  448. 

Legislation  8  887.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  577,  as  amended  by 
Stats.  1854,  p.  63  [961,  which  read:  "If  the 
plaintiff  anne.x  to  his  complaint  or  file  with  the 
justice  at  tlie  time  of  issuing  the  summons,  a 
copy  of  the  promissory  note,  bill  of  exchange,  or 
otlier  written  obligation  for  the  payment  of  money 
upon  which  the  action  is  brought,  the  defendant 
shall  be  deemed  to  admit  the  genuineness  of  the 
signatures  of  the  makers,  indorsers,  or  assignors 
thereof,   unless  he   specifically   deny   the   same  in 


his  answer,  and  verifying  [sic]  the  answer  by 
his  oath."  When  §  887  was  enacted  in  1872, 
(1)  "the  original  or"  was  inserted  before  "a 
copy,"  (2)  "is"  was  substituted  for  "shall  be" 
before  "deemed,"  and  (3)  "verify"  was  sub- 
stituted  for    "verifying." 

2.  Amendment  by  Stats.  1901,  p.  169;  un- 
constitutional.   See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907.  p.  880;  the  code 
commissioner  saying,  "The  amendment  requires 
the  same  proceeding  to  deny  the  genuineness  of 
a  written  instrument  when  made  part  of  an  an- 
swer as  when  part  of  a  complaint  in  a  justice's 
court." 


CHAPTER  VIII. 
JUDGMENTS    (OTHER    THAN    BY   DEFAULT)    IN    JUSTICES'  COURTS. 


§  889.    Judgment  by  confession. 
§  890.    Judgment  of  dismissal  entered  in   certain 
cases  without  prejudice. 
Judgment  upon  verdict. 
Entry  of  judgment  in  tliirty   days. 
Judgment.       Form.       What     must     state, 
where     defendant     subject     to     arrest. 
Service   and    entry. 
If  the  sum  found  due  exceeds  the  juris- 


§  891. 
§  892. 
§  893. 


S  894. 


diction  of  the  justice,  the  excess  may 
be    remitted. 
Offer  to  compromise  before  trial. 
Costs  may  be  included  in  the  judgment. 
Abstract  of  judgment. 
S  898.     Abstract    may    be    filed    and    docketed    in 
superior  court. 
Effect  of  docketing. 
Judgment  no  lien  unless  recorded. 


§  895 
§  896 
§  897 


§  899 
§  900 


§  889.     Judgment  by  confession.     Judgments  upon   confession  may  be 
entered  up  in  any  justice's  court  specified  in  the  confession. 


Confession  of  judgment. 

1.  Generally.     Post,  §§  1132-1135. 

2.  Jurisdiction.     Ante,  §  112,  subd.  6. 

Legislation  8  889.  Enacted  March  11,  1872 
(based  on  Practice  Act,  §  536),  (1)  substituting 
"judgments"  for  "judgment,"  and  (2)  omitting 
"in   the  state"   before   "specified." 

CODE  COMMISSIONERS'  NOTE.  It  was 
held  that  a  judgment  upon  confession  cannot 
be  entered  up  for  three  hundred  dollars  or  more, 
as  justices  have  no  jurisdiction  where  the  amount 
in  controversy  exceeds  tliat  amount,  and  consent 
of  parties  cannot  confer  jurisdiction.  Feillett  v. 
Engler,  8  Cal.  77.  The  jurisdiction  of  the  jus- 
tice's court  is  determined  by  the  amount  in  con- 


troversy, and  not  by  the  amount  of  the  judgment. 
In  addition  to  the  amount  in  controversy,  costs 
and  interest  may  be  included  in  the  judgment, 
and  it  seems  that  the  judgment  will  not  for 
that  reason  be  void,  and  in  such  cases  may  ex- 
ceed the  sum  of  three  hundred  dollars.  See 
Bradley  v.  Kent,  22  Cal.  171;  and  particularly 
Reed  v.  Bernal,  40  Cal.  628;  and  Will  v.  Sink- 
witz,  39  Cal.  570.  In  Reed  v.  Bernal,  40  Cal. 
633,  where  a  judgment  was  rendered  by  a  jus- 
tice of  tlie  peace  for  the  principal  and  interest 
due  on  a  note,  and  also  a  further  sum  of  fifty 
per  cent  on  the  amount  of  such  principal  and 
interest,  in  pursuance  of  a  stipulation  contained 
in  a  note  authorizing  the  allowance  of  the  fifty 
per    cent    additional,    which    latter    £um,     when 


890         JUDGMENTS    (OTHER  THAN  BY  DEFAULT)    IN  JUSTICES'   COURTS.  1004 


added   to  the  principal   and   interest,   exceeded  in  matters   of   jurisdiction.    §44,    ante,    note   6;    also 

amount    the    sum    of    three    hundred    dollars,    and  §    86,    ante,    note    4,    and    §    114,    note    7,    where 

such   judgment    was   held    void,    as    exceeding    the  the   phrase    "amount    in    controversy"    is    defined, 

jurisdiction  of  the  justice,  the  fifty  per  cent  addi-  and    the    amounts    for    which    judgments    may    be 

tional    was    not    in    the    nature    of    interest,    and  entered    by    justices'    and    county    courts    is    dis- 

hence     could     not     be     added     to     the     judgment.  cussed. 
Reed   v.    Bernal,    40    Cal.    633.      See,    as   to    these 

§  890.  Judgrment  of  dismissal  entered  in  certain  cases  without  prejudice. 
Judgment  that  the  action  be  dismissed,  without  prejudic(>  to  a  new  action, 
may  be  entered  with  costs,  in  the  following  cases: 

1.  When  the  plaintiff  voluntarily  dismisses  the  action  before  it  is  finally 
submitted;  or  fails  to  prosecute  the  action  to  judgment  with  reasonable 
diligence ;  provided  a  counterclaim  has  not  been  made,  or  affirmative  relief 
sought  by  the  cross-complaint  or  answer  of  the  defendant;  if  a  provisional 
remedy  has  been  allowed,  the  undertaking  must  thereupon  be  delivered  by 
the  justice  of  the  peace  to  the  defendant  who  may  have  his  action  thereon; 

2.  When  he  fails  to  appear  at  the  time  specified  in  the  summons,  or  at 
the  time  to  which  the  action  has  been  postponed,  or  within  one  hour  there- 
after ; 

3.  When,  after  a  demurrer  to  the  complaint  has  been  sustained,  the  plain- 
tiff fails  to  amend  it  within  the  time  allowed  by  the  court ; 

4.  When  the  action  is  brought  in  the  wrong  county,  or  township,  or  city. 

peace  in  sustaining  a  demurrer  to  the  com- 
plaint does  not   constitute  a  judgment   of 


Dismissal.    Compare  ante,  §  581. 

Legislation  §  890.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  591,  (1)  the  introduc- 
tory paragraph  reading  as  at  present;  (2)  ^sulid. 
1  ended  with  the  words  "finally  submitted";  (3) 
subd.  2  read,  "When  he  fails  to  appear  at  the 
time  specified  in  the  summons,  or  upon  adjourn- 
ment, or  within  one  hour  thereafter";  (4)  subd. 
3  (the  present  subd.  4)  read,  "When  it  is  ob- 
jected at  the  trial,  and  appears  by  the  evidence, 
that  the  action  is  brought  in  the  wrong  county, 
or  township,  ur  city;  but  if  the  objection  be  taken 
and  overruled,  it  shall  be  cause  only  of  reversal 
on  appeal,  and  shall  not  otherwise  invalidate  the 
judgment ;  if  not  taken  at  the  trial,  it  shall  be 
deemed  waived,  and  shall  not  be  cause  of  re- 
versal," the  Practice  Act  section  ending  with 
these  words.      When    §    890  was  enacted  in   1872, 

(1)  subd.   2   was   changed  to   read  as   at   present; 

(2)  the  present  subd.  3  was  added;  (3)  Prac- 
tice Act  subd.  3  was  renumbered  subd.  4,  and 
(a)  "be"  changed  to  "is"  before  "taken,"  (b) 
"shall  be"  changed  to  "is"  before  "cause,"  (c) 
"shall  be  deemed"  changed  to  "does"  before  "not 
otherwise,"  and  (d)  after  "the  trial,"  the  words 
"it  is  waived"   substituted  as  the   final  words. 

S.   Amended  by  Stats.   1905,  p.  44. 

Construction  of  section.  This  section 
must  be  considered  in  connection  with 
§  832,  ante;  and  it  provides  for  a  mode  of 
waiving  ob,jection  to  the  jurisdiction,  fully 
as  effective  as  a  voluntary  apjiearance 
without  summons.  McGorray  v.  Superior 
Court,  141  Cal.  266;  74  Pac.  853.  It  limits 
the  causes  for  which  a  judgment  of  dis- 
missal may  be  entered;  and  the  plaintiff's 
failure  to  establish  his  case  by  satisfactory 
evidence  is  not  one  of  those  causes.  Pea- 
cock v.  Sujjerior  Court,  16.'?  Cal.  701;  126 
Pac.  976.  The  i^rovision  of  §  581,  ante,  for 
the  dismissal  of  an  action  for  failure  to 
serve  and  return  the  summons  within  three 
years,  does  not  apply  to  justices'  courts. 
Hubbard  v.  Superior  Court,  9  Cal.  App. 
166;  9S  Pac.  394. 

Decision  sustaining  demurrer  to  com- 
plaint.    The   action    of     a   justice    of     the 


the  court;  and  where  there  is  no  trial  upon 
the  merits,  such  action  is  but  an  order  in 
regard  to  the  sufficiency  of  the  complaint, 
and  not  a  judgment:  an  order  upon  a 
demurrer  is  only  a  decision  upon  the  cor- 
rectness or  sufficiency  of  practice  in  seek- 
ing to  obtain  a  judgment,  and  is  not  itself 
a  judgment;  but  if  a  judgment  is  after- 
wards entered  upon  such  order,  it  must  be 
that  the  action  be  dismissed  without  preju- 
dice to  a  new  action;  hence,  the  decision 
sustaining  the  demurrer  is  not  a  bar  to  a 
subsequent  action  in  the  superior  court. 
Sivers  v.  Sivers,  97  Cal.  518;  32  Pac.  571. 

Jurisdiction,  waiver  of  objection  to. 
Under  the  terms  of  the  fourth  subdivision 
of  this  section,  the  objection  that  the  ac- 
tion has  not  been  commenced  in  the  proper 
township  is  waived,  if  not  taken  at  the 
trial.  McGorray  v.  Superior  Court,  141 
Cal.  266;  74  Pac.  853.  Under  this  section, 
it  is  not  essential  that  the  defendant  ap- 
pear specially  and  move  to  dismiss  the 
action,  but  the  objection  may  be  taken  by 
answer  and  urged  upon  the  trial;  but  "if 
not  taken  at  the  trial,  it  is  waived."  Hol- 
brook  v.  Superior  Court,  106  Cal.  589;  39 
Pac.  936.  Where  the  action  is  in  its  na- 
ture personal,  and  the  defendant  with- 
draws his  motion  to  dismiss,  and  goes  to 
trial  upon  the  merits,  there  is  a  waiver 
of  the  question  of  jurisdiction.  Luco  v, 
Superior  Court,  71  Cal.  555;  12  Pac.  677. 

Trial  after  dismissal  refused.  A  motion 
to  dismiss,  under  this  section,  is  addressed 
to  the  discretion  of  the  justice's  court, 
which  has  jurisdiction  to  try  the  action 
after  such  a  motion  has  been  denied.   Hub- 


1005 


JUDGMENT — UPON   VERDICT — ENTRY. 


§§891,892 


Lard   V.   Superior   Court,   9   Cal.   App.    IGG; 
98  I'ac.  394. 

Nonsuit.  A  justice's  court  cannot  tyrant 
a  uoii.suit.  Peacock  v.  Superior  Court,  1U3 
Cal.  701;  126  Pac.  976.  Where  the  justice 
grants  a  nonsuit,  there  has  been  no  trial 
ou  the  merits,  and  the  su|)erior  court,  upon 
reversal,  may  properly  refuse  to  grant  a 
trial  de  novo  therein,  an<l  may  remand  the 
case  for  a  new  trial  in  the  justice's  court. 
Smith  V.  Superior  Court,  2  Cal.  App.  529; 
84  Pac.  54. 

CODE  COMMISSIONERS'  NOTE.  A  justice 
1)f  the  peace  camiot  vacate  a  judKiUfiit  and  rein- 
Btate  the  cause  after  a  .iudtrnient  of  dismissal. 
When  once  properly  dismissed,  the  case  is  out 
of  court  and  the  proceedings  ended,  and  the 
justice  has  no  further  control   over   it.     Sprague 


V.  Shed,  9  .Johns.  (.V.  Y.)  140;  Hunt  v.  Wick- 
wire,  10  Wend.  (.\.  v.)  104;  2r>  Am.  Dec  .')4.">. 
In  case  of  the  disfnihsal  of  a  suit  for  the  non- 
a[)piaranco  of  a  plaintifT,  the  judKinenl  fur  the 
defendant  ipso  facto  operates  us  a  dissolution 
of  the  allachinent.  O'Connor  v.  Blake,  UW  Cal. 
316.  Suit  t>rou;;lit  in  justice's  court  for  one 
township  and  siMvice  on  di'fendaiil  was  made  in 
another  township  by  constable  of  the  latter  town- 
ship; defendant  appeared,  and,  before  filing 
answer,  moved  to  dismiss  the  action  on  the 
grounds:  1.  That  the  court  has  no  jurisdiction 
of  the  person  of  defendant;  2.  That  the  return 
of  the  oflirer  is  insulTicii^nt  to  give  jurisdiction. 
The  motion  was  properly  denied;  because  de- 
fendant could  not  thus  defeat  the  whole  case 
in  limine  upon  the  insufficiencies  of  the  record, 
thouj^h  the  action  minht  have  been  thus  dis- 
missed if  the  facts  were  shown  to  be  such  that 
the  record  could  not  be  amended.  Hamilton  v. 
McDonald,  18  Cal.  128;  see  also  Lowe  v.  Alex- 
ander, 15  Cal.  29(i. 


§  891.  Judgment  upon  verdict.  When  a  trial  by  jury  has  been  had, 
jiidyjment  must  be  entered  by  the  justice  at  once,  in  conformity  with  the 
verdict. 

Rendering    judgment,   what  constitutes. 

A  judgniont  is  not  "rendered"  in  a  jus- 
tice's court  until  it  is  "entered,"  or  can 
legally  be  held  to  be  "entered":  there  is 
no  other  way  of  "rendering"  a  judgment 
in  such  a  court.  Thomson  v.  Sunerior 
Court,  161  Cal.  329;  119  Pac.  98;  .Tune  v. 
Superior  Court,  16  Cal.  App.  126;  116  Pac. 
293. 

Result  of  failure  to  enter  judgment. 
The  formal  entry  of  a  judgment  by  a  jus- 
tice of  the  peace,  upon  the  verdict  of  a 
jury,  is  a  mere  clerical  duty,  which  he 
may  be  compelled  to  perform;  and  if  he 
fails  to  do  so,  a  motion  to  set  aside  an 
execution  should  be  sustained;  but  an  exe- 
cution issued  by  a  justice  of  the  peace, 
which  recites  a  judgment,  is  not  void  by 
reason  of  his  failure  to  enter  the  judgment. 
Lynch  v.  Kelly,  41  Cal.  232.  A  justice, 
who  refuses  to  enter  judgment,  may  be 
compelled  to  act.  Thomson  v.  Superior 
Court,  161  Cal.  329;  119  Pac.  98. 

NOTE.      See    next 


Entry  of  judgment. 

1.  Generally.    Ante,  §  664. 

2.  As   affecting  appeals.     Post,  §  939. 

Legislation  §  891.      Enacted  March  11,  1872. 

Duty  to  enter  judgment.  It  is  the  jus- 
tice's duty  to  enter  the  judgment  promptly, 
but  until  he  does  so,  there  is  no  "rendi- 
tion" of  the  judgment,  in  the  sense  of  that 
word  as  used  in  §  974,  post.  Thomson  v. 
Superior  Court,  161  Cal.  329;  119  Pac.  98. 

How  entered.  The  justice  need  not 
formulate  a  judgment  with  great  particu- 
larity, but  he  must  make  some  entry  in 
his  docket,  showing  that  he  has  rendered 
judgment  on  the  verdict.  Thomson  v. 
Superior  Court,  161  Cal.  329;  119  Pac. 
98;  June  v.  Superior  Court,  16  Cal.  App. 
126;  116  Pac.  293. 

Entry  of  judgment,  what  constitutes. 
The  entry  of  the  verdict  of  a  jury  by  the 
justice,  in  his  docket,  is  not  the  entry  of 
the  judgment.  Thomson  v.  Superior  Court, 
161  Cal.  329;  119  Pac.  98;  June  v.  Superior 
Court,  16  Cal.  App.  126 ;  116  Pac.  293. 

§  892.  Entry  of  judgnnent  in  thirty  days.  When  the  trial  is  by  the 
court,  judtj;ment  must  be  entered  Avithin  thirty  days  after  the  submission, 
and  no  justice  of  the  peace  who  is  paid  a  salary,  shall  draw  or  receive  any 
monthly  salary  unless  he  shall  make  and  subscribe  an  affidavit  before  an 
officer  entitled  to  administer  oaths,  that  no  cause  in  his  court  remains 
pending  and  undecided,  that 'has  been  submitted  for  decision  for  a  i)eriod 
of  thirty  days. 

4.  Amended  by  Stats.  1913.  p.  77.  adding  all 
the  matter  after  the  word   "submission." 

Construction  of  section.  The  provision 
of  this  section,  prior  to  i.s  amendment  in 
1907,  that  judgment  must  be  entered  at 
the  close  of  the  trial,  was  merely  directory, 
and  a  judgment  was  not  void  because  not 
rendered  until  six  weeks  after  the  submis- 
sion of  the  case.  Heinlen  v.  Phillips,  88 
Cal.  557;  26  Pac.  366;  Jones  v.  Justice's 
Court,  97  Cal.  523;  32  Pac.  575;  American 


CODE    COMMISSIONERS 

section. 


Legislation  S  892.  1.  Enacted  M.irch  11,  1873, 
and  tlien  read:  "§  892.  When  a  trial  is  by  the 
court,  judgment  must  be  entered  at  the  close  of 
the  trial." 

2.  Amendment  by  Stats.  1901,  p.  170;  un- 
constitutional.    See  note  ante.  §  .^. 

3.  Amended  by  Stats.  1907.  p.  881,  and  then 
read:  "§  892.  When  the  trial  is  by  the  court, 
judgment  must  be  entered  within  ten  days  after 
the  submission";  the  code  commissioner  saying, 
"The  amendment  permits  the  judgment  in  jus- 
tices' courts  to  lie  entered  'at  any  time  within 
ten  days  after  submission,"  instead  of  'at  the 
close  of  the  trial.'  "  • 


§§  893, 894   JUDGMENTS  (other  than  by  default)  in  justices'  courts.     1006 


the  merits  of  the  action  in  which  the  jus- 
tice's judgment  was  rendered.  Banister  v. 
Campbell,  138  Cal.  455;  71  Pac.  504. 

Collateral  attack  upon  judgment.  The 
judgment  of  a  justice  of  the  peace,  who 
has  jurisdiction  of  the  subject-matter  of 
the  action,  and  of  the  person  of  the  de- 
fendant, cannot  be  collaterally  attacked 
as  void,  merely  because  the  complaint  is 
insufficient  to  constitute  a  cause  of  ac- 
tion: the  insufficiency  of  the  complaint  is 
not  a  conclusive  test  of  the  jurisdiction  of 
the  justice's  court;  it  has  jurisdiction  to 
determine  that  question,  whether  his  de- 
cision is  right  or  wrong;  and  if  error  is 
committed,  the  only  remedy  is  by  appeal. 
Brush  V.  Smith,  141  Cal.  466;  75  Pac.  55. 

"Entering"  and  "rendering"  judgment. 
See  note  ante,  §  891. 

Time  of  rendition  and  entry  of  judgment  by 
justice  of  the  peace  sitting  without  jury.  See  note 
12  Ann.  Cas.  1029. 


Type  Founders  Co.  v.  Justice's  Court,  133 
Cal.  319;  65  Pac.  742;  and  see  Webster  v. 
Hanna,  102  Cal.  177;  36  Pac.  421.  No 
penalty  is  prescribed,  or  consequence  at- 
tached, for  a  violation  of  this  section;  if 
the  legislature  intended  that  a  delay  of  a 
day  by  the  justice  (for  that  would  be  a 
violation  of  the  provision)  should  subject 
the  parties  to  the  expense  of  a  retrial,  it 
would  have  said  so  in  express  terms.  Hein- 
len  v.  Phillips,  88  Cal.  557;  26  Pac.  366. 
A  justice  of  the  peace  is  not  prohibited, 
by  this  section,  from  taking  the  case  un- 
der ad\»isement,  and  afterwards  rendering 
judgment;  and  a  judgment  so  rendered, 
several  months  after  trial,  is  valid.  Ameri- 
can Type  Founders  Co.  v.  Justice's  Court, 
133  Cal.  319;  65  Pac.  742. 

Action  on  judgment  of  sister  state.  In 
an  action  upon  a  judgment  rendered  in  a 
justice's  court  of  another  state,  the  defend- 
ant  cannot  interpose   a   defense   going   to 

§  893.  Judgment.  Form.  What  must  state,  where  defendant  subject 
to  arrest.  Service  and  entry.  The  judgment  of  a  justice  of  the  peace  must 
be  entered  substantially  in  the  form  required  in  section  six  hundred  and 
sixty-seven,  and  where  the  defendant  i?  subject  to  arrest  and  imprisonment 
thereon  the  fact  must  be  stated  in  the  judgment.  No  judgment  shall  have 
effect  for  any  purpose  until  so  entered.  Notice  of  the  rendition  of  judg- 
ment must  be  given  to  the  parties  to  the  action  in  writing  signed  by  the  jus- 
tice. Where  any  of  the  parties  are  represented  by  an  attorney,  notice  shall 
be  given  to  the  attorney.  Said  notice  shall  be  served  by  mail  or  personally, 
and  shall  be  substan[ti]ally  in  the  form  of  the  abstract  of  judgment  required 
in  section  eight  hundred  and  ninety-seven  of  this  code.  When  served  by 
mail  the  justice  of  the  peace  shall  deposit  copies  thereof  in  a  sealed  envelope 
in  the  post-office  not  later  than  five  days  after  the  rendition  of  the  judg- 
ment, addressed  to  each  of  the  persons  on  whom  notice  is  to  be  served  at 
their  place  of  residence,  or  place  of  business  if  on  an  attorney,  and  the  post- 
age prepaid  thereon.  When  served  personally  said  notice  shall  be  served 
within  five  days  after  the  rendition  of  the  judgment.  Entry  of  the  date  of 
mailing  shall  be  made  by  the  justice  in  his  docket. 


Final  process,  issued  to  any  part  of  county. 
Ante,  §§  94,   106. 

Legislation  §  893.  1.  Enacted  March  11, 
1872  (based  on  Practice  Act,  §  597),  and  then 
read:  "893.  When  a  judgment  is  rendered  in  a 
case  where  the  defendant  is  subject  to  arrest 
and  imprisonment  thereon,  the  fact  that  the  de- 
fendant is  so  subject,  must  be  so  stated  in  the 
judgment." 

2.  Ameiided  by  Code  Amdts.  1873-74, 
p.  .334,  adding  a  sentence  at  the  beginning, 
reading,  "The  judgment  in  justices'  courts  must 
be  entered  substantially  in  the  form  required  by 
section  six  hundred  and  sixty-seven  of  this  code." 


3.  Amended  by  Stats.  1901,  p.  170;  uncon- 
stitutional.     See  note  ante,  §  .5. 

4.  Amended  by  Stats.  1907,  p.  881;  the  code 
commissioner  saying,  "The  meaning  of  the  sec- 
tion is  not  changed,  but  superfluous  portions  are 
omitted,  and  the  last  sentence  is  added." 

5.  Amended  by  Stats.  1915,  p.  1441,  adding 
the  final  six  sentences. 

"Entering"   arid   "rendering"   judgment. 

See  note  ante,  §  891. 

What  controls  as  between  oral  announcement 
of  decision  by  justice  of  the  peace  and  judgment 
actually  entered  of  record.  See  note  Ann.  Cas. 
1912A, 1283. 


§  894.  If  the  siun  found  due  exceeds  the  jurisdiction  of  the  justice,  the 
excess  may  be  remitted.  When  the  amount  found  due  to  either  party  ex- 
ceeds the  sum  for  which  the  justice  is  authorized  to  enter  judgment,  such 
party  may  remit  the  excess,  and  judgment  may  be  rendered  for  the  residue. 


Limit,  three  hundred  dollars.     Ante,  §  112. 

Legislation  S  894.  Knactnd  March  11,  1872; 
re-enactment  of  Practice  Act,  §  595. 

Test  of  jurisdiction.  Sufficiency  of  com- 
plaint not  conclusive  test  of  jurisdiction. 
Brush  V.  Smith,  141  Cal.  466;  75  Pac.  55. 


Jurisdiction  determined  how.  A  justice 
of  the  peace  has  jurisdiction  to  determine 
the  question  of  his  juri'sdiction;  and  if 
error  is  committed,  the  remedy  is  by  ap- 
peal. Brush  V.  Smith,  141  Cal.  466;  75 
Pac.  55. 


1007  OFFER   TO   COMPROMISE — COSTS — ABSTRACT,    FILING,    ETC.       §§  895-898 

§  895.  Offer  to  compromise  before  trial.  If  the  defendant,  at  any  time 
before  the  trial,  offers,  in  writing,  to  allow  judgment  to  be  taken  against 
him  for  a  specified  sum,  the  plaintiff  may  immediately  have  judgment  there- 
for, with  the  costs  then  accrued ;  but  if  he  does  not  accept  such  offer  before 
the  trial,  and  fails  to  recover  in  the  action  a  sura  in  excess  of  the  offer,  he 
cannot  recover  costs  incurred  after  the  offer,  but  costs  must  be  adjudged 
against  him,  and,  if  he  recovers,  be  deducted  from  his  recovery.  The  offer 
and  failure  to  accept  it  cannot  be  given  in  evidence  nor  affect  the  recovery, 
otherwise  than  as  to  costs. 

Offer   to   compromise.      Compare    post,    S§  997,  3.   Amendment   by    Stats.    1901,    p.    170,    un 

2078.  constitutional.      See   note   ante,  §  5. 

T      ■  1   *•       a  oo=          ..       t:.        .   J      nf       u      ,1  4.   Amendpd    by    Stats.    1907,    p.    881.    insert- 
Legislation  8  895.        1.     Enacted      March      U.  j^^  "incurred  after  the  offer,"   after  "costs";   the 
187^;  based  on  Practice  Act    §596.  code    commi.ssioner    saying,     "Amended    so    as    to 
2.    Amended      by      Code      Amdts.      1877-78,  ^,,Q^y    plaintiff    to    recover    costs    up    to    the    time 
p.    103,    .substituting     in  excess   of  the   offer     for  defendant  allows  judgment  to  be  taken." 
equal   to   the   otter. 

§  896,  Costs  may  be  included  in  the  judgment.  The  justice  must  tax  and 
include  in  the  judgment  the  costs  allowed  by  law  to  the  prevailing  party. 

Legislation  §  896.    Enacted  March  11,   1873. 

§  897.  Abstract  of  judgment.  The  justice,  on  the  demand  of  a  party  in 
whose  favor  judgment  is  rendered,  must  give  him  an  abstract  of  the  judg- 
ment in  substantially  the  following  form  (filling  blanks  according  to  the 
facts)  :  State  of  California,  county  (or  city  and  county),  ,  plain- 
tiff, vs.  ,   defendant.     In  justice's  court,  before  ,  justice   of  the 

peace,  township  (or  city,  or  city  and  county),  ,  18 —  (inserting 

date   of   abstract).     Judgment   entered   for   plaintiff    (or   defendant)    for 

$ ,  on  the  day  of .     I  certify  that  the  foregoing  is  a  correct 

abstract  of  a  judgment  rendered  in  said  action  in  my  court,  ,  or  (as 

the  case  may  be)  in  the  court  of ,  justice  of  the  peace,  as  appears  by 

his  docket,  now  in  my  possession,  as  his  successor  in  office.     ,  Justice 

of  the  Peace. 

Legislation  §  897.    1.  Enacted  March  11,  1873.  docketing,  it  was  the  duty  of  the  clerk  to 

2.  Amended   by   Code   Amdts    1880,   P-    19,  j^g^^  execution  to  be  executed  in  another 

(1)    inserting    'substantially     before     the  loUow-  r,/- o    ,  -, -£. 

ingform";    (2)   inserting  "(or  city  and  county)"  county.    Kerns  V.  Graves,  26  Cal.lo6. 

after  "county,"  and  inserting  also,  after  "18 — ,"  Judgment  a  lien  on  real  property  when. 

"(inserting  date  of  abstract)."  Under   the  Practice   Act,   a  judgment   ren- 

Filing  abstract  with  auditor.     The  filing  dered  by  a  justice  of  the  peace  did  not  be- 

with  the  county  auditor,  of  an  abstract  of  come    a    lien    on    the    real    estate    of    the 

the  judgment,  under  this  section,  is  insuffi-  judgment  debtor  until  a  copy  of  the  judg- 

cient  to  entitle  the  plaintiff  to  the  benefits  ment,  certified  by  the  justice  was  recorded 

of  §  710,  ante,  which  requires  the  filing  of  in  the  office  of  the  county  recorder.    Bag- 

a  transcript  of  the  judgment.     Erksou  v.  ley  v.  Ward,  27  Cal.  369.     Since  the  adop- 

Parker,  3  Cal.  App.  98;  84  Pac.  437.     The  tion  of  the  codes,  and  under  this  section, 

abstract   of   a  judgment,   as   contemplated  in   order   that   a  judgment  rendered   by   a 

by  this  section  and  §  900,  post,  is  not  the  justice   of   the   peace   shall   become   a   Hen 

same  as  the  transcript  of  a  judgment  pro-  on   the   property  of   the  judgment   debtor, 

vided  by  §  710,  ante.     First  Nat.  Bank  v.  an   abstract   of   the   judgment,   and   not    a 

Tyler,  21  Cal.  App.  791;  132  Pac.  i053.  certified  copy,   must   be   filed  in   the   office 

Execution  issued  by  whom.     Under  the  of  the  county  recorder.     Frazier  v.  Crowell, 

Practice  Act,  before  the  filing  and  docket-  52  Cal.  399. 

ing    of    the    transcript    the    justice    alone  pQjjj.   COMMISSIONEES'  NOTE.     See  §  900. 

could  issue  executions,  but,  after  filing  and  post. 

§  898.  Abstract  may  be  filed  and  docketed  in  superior  court.  The  abstract 
may  be  filed  in  the  oflfice  of  the  county  clerk  of  the  county  in  which  the  judg- 
ment was  rendered,  and  the  judgment  docketed  in  the  judgment-docket  of 
the  superior  court  thereof.  The  time  of  the  receipt  of  the  abstract  by  the 
clerk  must  be  noted  by  him  thereon,  and  entered  in  the  docket. 


§§  899,  900    JUDGMENTS  (other  than  by  default)  in  justices'  courts.    lOOS 


Docketing  of  judgment  by  justice  of  the  peace. 
See  note  40  Am.   Dec.  386. 

Entry  or  record  of  judgment  in  justice's  court. 
See  note  28  L.  R.  A.  638. 


CODE    COMMISSIONERS'   NOTE, 
post. 


See  §  900, 


Docketing  judgment,  generally.    Ante,  §  671. 
Recording    transcript.     Ante.  S  674. 
Legislation  §  898.     1.  Enacted  March  11,  1873. 
2.   Amended  by  Code  Amdts.  1880,  p.  20,  (1) 

omitting  "and  docketed"  after  "iiled,"  (2)  sub- 
stituting "the  judgment"  for  "must  be,"  and  (3) 
substituting  "superior  court  thereof"  for  "county 
court." 

§  899.  Effect  of  docketing.  From  the  time  of  docketino;  in  the  county 
clerk's  office,  execution  may  be  issued  thereon  by  tlie  county  clerk  to  the 
sheriff  of  any  county  in  the  state,  other  than  the  county  in  which  the  judg- 
ment was  rendered,  in  the  same  manner  and  with  like  effect  as  if  issued  on 
a  judgment  of  the  superior  court. 

Execution,  generally.    Ante,  §§  681  et  seq. 
Docketing  judgment.     Ante,  §  671. 
Recording   transcript.      Ante,  §  674. 

Legislation  §  899.     1.  Enacted  March  11,  1872. 

2.  Amended  by  Code  Amdts.  1880.  p.  20,  sub- 
stituting (1)  "superior"  for  "county"  before 
"court,"  and  (2)   "a  judgment"  for  "judgments." 

Effect  of  docketing.  The  docketing  of  a 
judgment  neither  gives  it  new  vitality  nor 
prolongs  its  existence:  it  simply  enables  an 
execution  to  be  issued  to  another  county. 
Kerns  v.  Graves,  26  Cal.  156.  Under  the 
statute  providing  that  execution  may  be 
issued  by  the  county  clerk  upon  a  judg- 
ment obtained  before  a  justice  of  the 
peace,  where  the  transcript  is  filed  in  the 
office  of  the  county  clerk,  as  upon  a  judg- 
ment recovered  in  the  higher  courts,  exe- 
cution can  issue  only  within  five  years 
after  the  judgment  is  rendered  by  the 
justice  of  the  peace,  and  execution  is  still 
upon  and  by  virtue  of  the  judgment  ren- 
dered by  the  justice.  McMann  v.  Superior 
Court,  74  Cal.  106;  1.5  Pac.  448. 

ilecordlng  of  abstract.     No  recording  of 


the  abstract  is  necessary  for  the  county 
in  which  the  judgment  was  rendered. 
Campbell  v.  Wickware,  19  Cal.  145. 

Justice  may  recall  execution  and  stay 
proceedings.  A  justice  of  the  peace  has 
power  to  recall  an  execution  issued  by  him 
on  a  void  judgment,  and  stay  further  pro- 
ceedings, even  if  the  judgment  has  been 
docketed  in  the  office  of  the  county  clerk 
and  execution  issued  by  the  clerk.  Gates 
V.  Lane,  49  Cal.  266. 

Effect  of  filing  transcript  of  judgment  in  court 
of  record  on  statute  of  limitations.  See  note  133 
Am.  St.  Rep.   75. 

CODE  COMMISSIONERS'  NOTE.  See  next 
section.  No  filing  of  such  transcript  with  the 
recorder  is  necessary,  except  to  procure  execu-  , 
tion  against  property  situated  in  a  different 
county.  With  reference  to  property  in  the  same 
county,  the  provisions  for  the  enforcement  of  an 
execution  upon  a  judgment  in  a  justice's  court 
are  the  same  as  those  relating  to  district  courts. 
Execution  may  issue  as  to  the  real  estate  of 
the  judgment  debtor  in  the  county  where  the 
judgment  was  rendered,  whether  the  abstract  of 
judgment  is  filed  in  the  office  of  the  recorder  or 
not.     Campbell  v.  Wickware,  19  Cal.  145. 


§  900.  Judgment  no  lien  unless  recorded.  A  judgment  rendered  in  a 
justice's  court  creates  no  lien  upon  any  lands  of  the  defendant,  unless  such 
an  abstract  is  filed  in  the  office  of  the  recorder  of  the  county  in  which  the 
lands  are  situated.  When  so  filed,  and  from  the  time  of  filing,  the  judg- 
ment becomes  a  lien  upon  all  the  real  property  of  the  judgment  debtor,  not 
exempt  from  execution,  in  such  county,  owned  by  him  at  the  time,  or  Avhich 
he  may  afterward,  and  before  the  lien  expires,  acquire.  The  lien  continues 
for  two  years,  unless  the  judgment  be  previously  satisfied. 

At  any  time  before  the  expiration  of  two  years  from  the  time  of  filing 
such  abstract  of  judgment,  and  while  the  judgment  is  yet  in  force  or  un- 
satisfied, a  successive  abstract  of  such  judgment  may  be  likewise  filed,  and 
it  shall  have  the  effect  of  continuing  such  lien  for  a  further  period  of  two 
years  from  the  time  of  filing  the  subsequent  abstract  of  judgment;  pro- 
vided, however,  that  no  such  lien  shall  continue  or  be  in  force  after  five 
years  from  the  time  of  the  rendition  of  such  judgment. 

Compare    ante, 


Lien,    extent   and   duration   of 
§  674. 

Legislation  §  900.  1.  Enacted  March  11,  1872, 
and  then  consisted  of  only  one  paragraph,  of  two 
sentences,  the  first  of  which  was  in  the  exact 
words  of  the  same  sentence  of  the  present  amend- 
ment (1911);  the  other  sentence  reading,  "When 
so  filed  and  recorded,  such  a  judgrae.it  is  a  lien 
upon  the  lands  of  the  judgment  debtor  situated 
in  that  county." 

2.  .\ni<-ndf-d  by  Code  Amdts.  1880,  p.  114,  re- 
casting  the   gection  after    the    first   sentence,    the 


entire    section    then   being   the    first    paragraph    of 
the   present   amendment. 

3.  Amended  by  Stats.  1911,  p.  398,  adding 
the  second  paragraph. 

Lien  upon  lands.  There  is  but  one  mode 
of  constituting  a  justice's  judgment  a  lien 
upon  the  lands  of  the  judgment  debtor, 
and  that  is,  by  filing  an  abstract  thereof 
in  the  office  of  the  recorder  of  the  county 
in  which  the  land  is  situated.    Beaton  v. 


1009 


EXECUTION — STAY  OF — CONTENTS  OF. 


§§901-902 


Eeid,  111  Cal.  4S4;  44  Pac.  167;  Frazier 
V.  Crowell,  52  Cal.  oOS. 

Effect  of  execution.  The  execution 
neither  creates  a  jiul^nnent  lien  nor  ex- 
tenils  a  jii(l;;iiieiit  lien  once  created.  Bea- 
ton V.  Re'id,  1  1  1  Cal.  4S4  ;  44  I'ac.  \Cu. 

Copy  of  judgment  filed  with  auditor.  A 
comi)lianee  with  §  897,  and  with  this  sec- 
tion, to  secure  a  lien  on  real  estate,  is  not 
enough  to  obtain  the  relief  authorized  by 
§  710,  ante:  a  certified  copy  of  the  judg- 
ment must  be  filed  with  the  auditor,  in 
order  to  obtain  relief  under  the  last-named 
section.  Erkson  v.  Parker,  3  Cal.  A  pp.  9S; 
84  Pac.  437.  The  abstract  of  a  judgment, 
as  contemplated  by  this  section  and  §  S97, 


ante,  is  not  the  same  as  the  transcript  of 
a  ]udgment  provided  by  §  710,  ante.  First 
Xat.  Hank  v.  Tyler,  21  Cal.  App.  791;  i:;2 
Pac.  10.13. 

Recording  abstract  under  Practice  Act. 
See  note  ante,  §  S97. 

CODE  COIMMISSIONERS'  NOTE.  In  order 
that  the  judKUii'iit  of  a  justice's  cuurt  iiiiiy  con- 
stitute a  lien  upon  real  estate,  the  abstract  of 
the  judgment  as  prescribed  in  §§  897,  898,  899, 
and  890,  must  be  filed  in  the  county  recorder's 
ofliee.  The  filing  and  reeordinc  of  copies  of  the 
justice's  docket  entries  does  not  constitute  the 
judgment  a  lien  on  the  real  estate.  The  judg- 
ment becomes  a  lien  only  after  the  filing  of  the 
abstract  of  judgment,  as  specified  in  the  sec- 
tions referred  to.  Bagley  v.  Ward,  27  Cal.  370; 
see  also  People  T.  Doe,  31  Cal.  220;  see  oote 
to  §  899,  ante. 


CHAPTER  IX. 

EXECUTIONS  FROM  JUSTICES'  COURTS. 


§  901.     Kxpcution    may   issue    at   any   time   within 

five  years. 
§  901a.  Stay  of  execution  of  judgment. 
§  902.     E.xecution,  contents  of. 


§  903.     Renewal  of  execution. 

§  904.     Duty  of  officer  receiving  execution. 

§  905.     Proceedings  supplementary  to  execution. 


§ 


901.  Execution  may  issue  at  any  time  within  five  years.  Execution 
•for  the  enforcement  of  a  judgment  of  a  justice's  court  may  be  issued  by 
the  justice  who  entered  the  judgment,  or  his  successor  in  office,  on  the 
application  of  the  party  entitled  thereto,  at  any  time  within  five  years  from 
the  entry  of  judgment. 

cution  after  that  period;  the  limitation 
applies  alike  to  all  executions  authorized 
to  be  issued  on  such  judgments,  and  applies 
not  only  to  the  justice,  but  also  to  the 
clerk,  the  section  being  general.  Kerns  v. 
Craves,  2G  Cal.  156.  The  loss  of  the  docket 
does  not  prevent  the  running  of  the  time 
limited  by  this  section.  White  v.  Clark, 
8  Cal.  512. 

Recalling  execution.  An  execution  issu- 
ing from  a  justice's  court,  though  issued 
by  the  county  clerk,  niay  be  recalled  by 
the  justice  rendering  the  judgment.  Gates 
V.  Lane,  49  Cal.  266. 


After  five  years,   generally.    Ante,  §  68.'). 
Execution,  generally.    Ante,  §§  681   et  seq. 
Final   process,    issued   to   any   part   of   county. 

Ante,  §§  !)l,  106. 

Legislation  §  901.  Enacted  March  11.  1872; 
liased  (in  Practice  Act,  §  600,  which  read:  "Exe- 
cution for  llie  enforcement  of  a  judgment  in  a 
jnsticeV.  cnurt.  mny  be  issued  on  the  :ipplicatii)n 
of  the  party  entitled  thereto,  at  any  time  within 
five  years  from  the  entry  of  judgment." 

Who  may  issue  execution.  A  justice  of 
the  peace,  but  not  the  superior  court,  is 
authorized  to  issue  an  execution,  under 
this  section.  ,Iohn  Heinlen  Co.  v.  Cadwell, 
3  Cal.  App.  SO;  84  Pac.  443. 

Issuance  of  execution  after  five  years. 
There  is  no  provision  allowing  an  execu- 
tion to  be  issued  by  a  justice  of  the  peace 
after  the  lapse  of  five  years:  execution, 
not  issued  within  that  time,  is  void.  White 
V.  Clark,  8  Cal.  512.  The  provision  that 
an  execution  may  be  issued  upon  a  judg- 
ment rendered  by  a  justice  of  the  peace, 
within  five  j^ears  from  the  time  of  its  en- 
try, amounts  to  a  limitation,  and  negatives, 
by  implication,  the  right  to  issue  an  exe- 


CODE  COMMISSIONERS'  NOTE.  Execution 
for  the  etiforcenient  of  a  judi;meiit  in  justice's 
court  cannot  issue  after  five  years  from  the  en- 
try of  judgment.  The  loss  of  the  docket  of  the 
justice  will  not  prevent  the  running  of  the  time. 
White  v.  Clark,  8  Cal.  512.  The  filing  and 
docketing  of  an  abstract  of  a  judgment  rendered 
by  a  justice,  in  the  office  of  the  clerk  of  the 
county,  will  not  empower  the  clerk  of  the  court 
in  which  it  is  tiled  and  docketed  to  issue  an 
execution  upon  it  after  five  years  from  the  date 
when  judgment  was  rendered.  Kerns  v.  Graves, 
26  Cal.  156. 


§  901a.  Stay  of  execution  of  judgment.  The  court,  or  any  justice 
thereof,  may  stay  the  execution  of  any  judgment,  including  any  judgment 
in  a  case  of  forcible  entry  or  unlawful  detainer,  for  a  period  not  exceeding 
ten  days. 


Legislation  g  901  a. 
p.  35. 


Added     by     Stats.     1906, 


§  902.     Execution,  contents  of.      The  execution  must  be  directed  to  the 
sheriff  or  to  a  constable  of  the  county,  and  must  be  subscribed  by  the  jus- 

1  Fair. — 64 


903,  904 


EXECUTIONS  FROM  JUSTICES  COURTS. 


1010 


tice  and  bear  date  the  day  of  its  delivery  to  the  officer.  It  must  intelligibly 
refer  to  the  judgment,  by  stating  the  names  of  the  parties,  and  the  name 
of  the  justice  before  whom,  and  of  the  county  and  the  township  or  city 
where,  and  the  time  when  it  was  rendered;  the  amount  of  judgment,  if  it 
be  for  money;  and,  if  less  than  the  whole  is  due,  the  true  amount  due 
thereon.  It  must  contain,  in  like  cases,  similar  directions  to  the  sheriff  or 
constable,  as  are  required  by  the  provisions  of  title  nine,  part  two,  of  this 
code,  in  an  execution  to  the  sheriff. 


Compare   ante,  §§  681   et  seq. 

Legislation  §  902.  Enacted  March  11,  1S72; 
based  on  Practice  Act,  §  601,  the  first  sentence 
of  which  read,  "The  execution,  when  issued  by 
a  justice,  shall  be  directed  to  the  sheriff  or  to  a 
constable  of  the  county,  and  subscribed  by  the 
justice  by  whom  the  judgment  was  rendered,  or 
by  his  successor  in  office,  and  shall  bear  date 
tne  day  of  its  delivery  to  the  officer  to  be  exe- 
cuted." and  had,  in  the  other  sentences,  (1) 
"shall"  instead  of  "must"  in -both  instances,  and 
(2)  "title  VII  of  this  act"  instead  of  "title 
nine,  part  two,  of  this  code." 

Constable's  power   outside   of  township 

or  county.  A  constable  may  execute  crim- 
inal process  outside  of  his  county:  the  con- 
struction which  the  phrase,  "a  constable 
of  the  county,"  in  §  601  of  the  Practice 
Act,  the  original  of  this  section,  seems  to 
have  received  was,  that  it  meant  any  con- 
stable of  the  county,  and  that,  conse- 
quently, the  writ  might  be  directed  to  a 
constable  of  a  township  other  than  that  of 
the  justice,  or  other  than  that  where  the 
property  to  be  levied  upon  was  situated; 
and  by  inference,  that  a  constable  could 
act  outside  of  his  township.  Allen  v.  Napa 
County,  82  Cal.  187;  23  Pac.  43. 

Blanks  in  writ.  It  is  not  necessary  to 
the  valid  execution  of  the  writ,  that  the 
blank  after  the  word  "defendant"  shall  be 
filled,   but   if   it   is    necessary,   it    may   be 

§  903.  Renewal  of  execution.  An  execution  may,  at  the  request  of  the 
judgment  creditor,  be  renewed  before  the  expiration  of  the  time  fixed  for 
its  return,  by  the  word  "renewed"  written  thereon,  with  the  date  thereof, 
and  subscribed  by  the  justice.  Such  renewal  has  the  effect  of  an  original 
issue,  and  may  be  repeated  as  often  as  necessary.  If  an  execution  is  returned 
unsatisfied,  another  may  be  afterwards  issued. 

Legislation  §  903.     Enacted  March  11,  1873.  the  recorder  may  be  compelled  by  mandamus 

Mandamus  to  compel  issuance  of  another  to  issue  another  execution,  his  duty  to  do  so 

execution.     Where  a  recorder's  court  errone-  being  purely  ministerial.   Hayward  v.  Pimen- 

ously    directs    an   execution   to   be    returned  tal,  107  Cal.  386 ;_ 40  Pac.  5-15. 
unsatisfied,  and  such  order  is  complied  with, 

§  904.  Duty  of  officer  receiving  execution.  The  sheriff  or  constable  to 
Avhom  the  execution  is  directed  must  execute  the  same  in  the  same  manner 
as  the  sheriff  is  required  by  the  provisions  of  title  nine,  part  two,  of  this 
code,  to  proceed  upon  executions  directed  to  him ;  and  the  constable,  when 
the  execution  is  directed  to  him,  is  vested  for  that  purpose  with  all  the 
powers  of  the  sheriff. 

Writ. 

Compare    ante,  §§  691    et 


done  by  amendment,  which  would  be  by 
the  court,  and  not  "filled  by  another,"  in 
the  sense  of  the  code:  the  code  provision 
was  intended  to  prevent  persons,  other 
than  the  court,  from  making  changes  in 
the  writ.  Brann  v.  Blum,  138  Cal.  644;  72 
Pac.  168. 

Amendable  errors  in  execution.  Where 
the  writ  correctly  gives  the  name  of  the 
justice  who  rendered  the  judgment,  and 
the  names  of  the  parties  thereto,  and  the 
county  in  which  it  was  rendered,  and 
states  the  name  of  the  township  in  the 
title  of  the  writ  and  in  the  indorsement 
thereupon,  errors  in  stating  the  month  in 
which  it  was  dated,  and  in  omitting  to 
state  the  township  in  describing  the  judg- 
ment, and  in  omitting  to  fill  the  blank 
after  the  word  "defendant"  in  the  writ, 
do  not  vitiate  the  writ  or  the  sale  there- 
under, but  are  amendable,  and  must  be 
deemed  amended.  Brann  v.  Blum,  138  Cal. 
644;  72  Pac.  168;  and  see  Hunt  v.  Loucks, 
38  Cal.  372;  99  Am.  Dec.  404;  O'Dounell 
V.  Merguire,  131  Cal.  527;  82  Am.  St.  Kep. 
389;  63  Pac.  847. 

CODE  COMMISSIONEES'  NOTE.  A  con- 
stable can  serve  an  execution  out  of  his  town- 
ship. In  this  respect  there  is  a  difference 
between  service  of  summons  and  service  of  exe- 
cution.    Lafontaine  v.  Greene,  17  Cal.  296. 


1.  Execution    of. 
Beq. 

2.  Generally.    See  ante,  §|  088  et  seq. 


Legislation  8  904.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  602,  as  amended  by 
Stats.  1854,  Redding  ed.  p.  69,  Kerr  ed.  p.  98, 
which  read:    "The   sheriff   or  constable   to   whom 


1011 


DUTY  OP  OFFICER — SUPPLEMENTARY  PROCEEDINGS. 


§905 


or  county.    See  note  ante,  §  902. 

Recording  transci-ipt  of  judgment.  Un- 
der §  (JUii  of  the  Practice  Act,  the  original 
of  this  section,  where  a  judgment  was 
rendered  by  a  justice  of  the  peace,  a  judg- 
ment debtor's  real  estate,  situated  in  the 
county  where  judgment  was  rendered, 
could  be  sold  on  execution,  whether  a 
transcript  of  the  judgment  was  filed  in 
the  office  of  the  recorder  of  such  county 
or  not:  no  filing  of  such  transcript  with 
the  recorder  was  necessary,  except  as  to 
property  situated  in  a  different  county. 
Caniiibcll  v.  \Vicl<ware,  19  Cal.  145. 

Claim  by  third  person,  liability  of  officer. 
"Where  jiroperty  has  been  taken  and  de- 
tained under  an  attachment  and  execution, 
but  is  claimed  by  a  third  party,  and  a 
jury,  called  to  try  the  right  to  the  prop- 
erty under  the  claim,  render  a  verdict 
against  the  claimant,  such  verdict  is  no 
protection  to  the  officer  in  a  subsequent 
suit  brought  against  him  by  the  claimant, 
nor  is  it  admissible  in  evidence  as  a  de- 
fense.   t?heldon  v.  Loomis,  28  Cal.  122. 

CODE  COMMISSIONERS'  NOTE.  See  §§  681- 
721,  aiitf,  inclusive,  and  notes  thereto. 


the  execution  is  directed  shall  proceed  to  execute 
the  same  in  the  same  manner  as  the  slierilT  is 
required  by  the  provisions  of  title  VII  of  this 
act  to  proceed  upon  e.\ecutions  directed  to  him; 
and  the  constable,  when  the  execution  is  directed 
to  him,  shall  be  vested  for  that  purpose  with  nil 
the  powers  of  the  sheriff,  and,  after  issuing  an 
execution,  and  either  befoie  or  after  its  return, 
(if  the  same'  be  returned  unsatisfied  either  in 
whole  or  in  part,)  the  judgment  creditor  sliall 
be  entitled  to  an  order  from  the  justice  requirio); 
the  judgment  debtor  to  attend  at  a  time  to  bo 
designated  in  the  order,  and  answer  concerning 
his  property  before  such  justice,  and  the  at- 
tendance of  such  debtor  may  be  enforced  by  the 
justice  on  his  attendance,  such  debtor  may  be  ex- 
amined under  oath  concerning  his  property,  and 
any  person  alleged  to  have  in  his  hands  property, 
moneys,  effects  or  credits  of  the  judgment  debtor 
may  also  be  required  to  attend  and  be  examined, 
and  the  justice  may  order  any  property  in  the 
hands  of  the  judgment  debtor  or  any  other  person 
not  exempt  from  execution,  belonging  to  such 
debtor,  to  be  applied  towards  the  satisfaction  of 
the  judgment;  and  the  justice  may  enforce  such 
order  by  imprisonment  until  complied  with,  but 
no  judgment  debtor  or  other  person  shall  be  re- 
quired to  attend  before  the  justice  out  of  the 
county  in  which  he  resides." 

Service  of  execution  outside  of  town- 
ship. A  constable  may  serve  an  execution 
outside  of  his  township.  Lafontaine  v. 
Greene.  17  Cal.  294. 

Constable's  power   outside   of  township 

§  905.  Proceeding's  supplementary  to  execution.  The  sections  of  this 
code,  from  seven  hundred  and  fourteen  to  seven  hundred  and  twenty-one, 
both  inclusive,  are  applicable  to  justices'  courts,  the  word  "constable"  being 
substituted,  to  that  end,  for  the  word  "sheriff,"  whenever  the  writ  is 
directed  to  a  constable,  and  the  word  "justice"  for  "judge."  If  the  judg- 
ment debtor  does  not  reside  in  the  county  wherein  the  judgment  was  en- 
tered, an  abstract  of  the  judgment,  in  the  form  prescribed  by  section  eight 
hundred  and  ninety-seven,  may  be  filed  in  the  office  of  the  justice  of  any 
town,  township,  or  city  wherein  the  defendant  resides,  and  such  justice 
may  issue  execution  on  such  judgment,  and  may  take  and  exercise  such 
jurisdiction  in  proceedings  supplemental  to  execution,  as  if  such  judgment 
were  originally  entered  in  his  court. 

Proceediugs  supplementary  to  execution.  Ante, 
§§  714-721. 

Legislation  g  905.  1.  Enacted  March  11,  1873, 
and  read:  "The  sections  of  this  code,  from  714  to 
721,  both  inclusive,  are  applicable  to  justices' 
courts,  the  word  'constable'  being  substituted,  to 
that  end,  for  the  word  'sheriff,'  and  the  word 
'justice'   for  the  word  'judge.'  " 

2.  Amendment  by  Stats.  1901,  p.  170;  un- 
constitutional.    See  note  ante.  §  5. 

3.  Amended  by  Stats.  1907.  p.  881;  the  code 
commissioner  saying,  "The  amendment  inserts  the 
words  'whenever  the  writ  is  directed  to  a  con- 
stable,' and  adds  the  last  sentence,  authorizing 
the  filing  of  an  abstract  of  the  judgment  in  the 
office  of  the  justice  of  any  town,  township,  or  city 
where  the  defend.i  it  resides,  and  the  issuing  of 
execution  thereof.' 


Construction  of  section.  This  section 
provides  that  §§  714-721,  ante,  shall  be 
applicable  to  justices'  courts:  these  sec- 
tions relate  to  proceedings  supplementary 
to  execution,  and  define  the  steps  to  be 
pursued  to  compel  the  judgment  debtor 
to  disclose  his  property,  and  to  secure  its 
application  toward  the  payment  of  execu- 
tion. Ex  parte  Latimer,  47  Cal.  131;  West 
Coast  Safetv  Faucet  Co.  v.  Wulff.  133  Cal. 
315;  85  Am.  St.  Rep.  171;  65  Pac.  622. 

CODE  COMMISSIONERS'  NOTE.  See  notes 
to  §§  714-721,  ante,  inclusive. 


§§  906-909  CONTEMPTS  IN  justices'  courts.  1012 

CHAPTER  X. 

CONTEMPTS  IN  JUSTICES'   COURTS. 

§906.     Contempts  a  justice  may  punish  for.  §909.     Punishments  for  contempts. 

§  907.    Proceedings  for  contempts.  §  910.     The    conviction    must    be    entered    in    the 

§  908.     Same.  docket. 

§  906.  Contempts  a  justice  may  punish  for.  A  justice  may  punish  as 
for  contempt,  persons  guilty  of  the  following  acts,  and  no  other: 

1.  Disorderly,  contemptuous,  or  insolent  behavior  toward  the  justice 
while  holding  court,  tending  to  interrupt  the  due  course  of  a  trial  or  other 
judicial  proceedings ; 

2.  A  breach  of  the  peace,  boisterous  conduct,  or  violent  disturbance  in 
the  presence  of  the  justice,  or  in  the  immediate  vicinity  of  the  court  held 
by  him,  tending  to  interrupt  the  due  course  of  a  trial  or  other  judicial  pro- 
ceeding; 

3.  Disobedience  or  resistance  to  the  execution  of  a  lawful  order  or  pro- 
cess, made  or  issued  by  him ; 

4.  Disobedience  to  a  subpoena  duly  served,  or  refusing  to  be  sworn  or 
to  answer  as  a  witness ; 

5.  Rescuing  any  person  or  property  in  the  custody  of  an  officer  by  virtue 
of  an  order  or  process  of  the  court  held  by  him ; 

6.  Any  of  the  acts  specified  in  subdivisions  four,  eight,  or  eleven,  of 
section  twelve  hundred  and  nine. 

Contempts,  generally.    Post,  §§  1209  et  seq.  constitutional.     See  note  ante.  §  5. 

Courts  and  judicial  ofacers,   powers  of.    Ante,  3.   Amended   by    Stats.   1907,   p.   881,    (1)    in 

§§  128,    177—179.  subd.    1,    inserting    "the"    between    "holding"    and 

•r      •  1   ^-       o  nr.D        t     ^        <.   J  1  r       V,  1 1    ■<  c n-o         "cuurt."  and  (  2  )  adding  subd.  6. 
Legislation  §  906.      1.  Enacted  March  11,  1873  ^ 

(based  on  Practice  Act,   §   616),  in  subd.   5,  sub-  Po-rrer  of  justices  of  the  peace  to  punish  con- 

stituting  "an"   for   "anv"   before   "officer."  tempts.    See  notes  117  Am.  St.  Rep.  953,  955;   9 

2.   Amendment    by    Stats.    1801,    p.    170;    un-         Ann.  Cas.  316  ;  1  L.  R.  A.  (N.  S.)  1135. 

§  907.  Proceedings  for  contempts.  When  a  contempt  is  committed  in 
the  immediate  view  and  presence  of  the  justice,  it  may  be  punished  sum- 
marily; to  that  end  an  order  must  be  made,  reciting  the  facts  as  they  oc- 
curred, and  adjudging  that  the  person  proceeded  against  is  thereby  guilty 
of  contempt,  and  that  he  be  punished  as  therein  prescribed. 

Compare   post,  §  1211.  in   the    immediate    view    and  presence   of   the   jus- 

X      •  1   1-       c  n/^™       T-,        ^    ,    -,,       ,_    , .      ..opivr.  tice,   a   warrant   of  arrest  may  be   issued  by   such 

Legislation  §907.      Enacted   March   11     1872;  justice,    on    which    the    person    so    guilty    may    be 

based  on  Practice  Act,   §617,  which  read:     \\  hen  arrested     and     brought     before     the     justice     im- 

a   contempt   is   couimitted   in   the    immediate    viev^  mediately,    when    an    opportunity    to    be    heard    in 

and   presence   of   the  justice    it  may   be   punished  ^is    defense    or    excuse    shall    be    given.      The    jus- 

summarily,   for  which  an   order  shall  be  made   re-  (j^g  ^^^.  thereupon  discharge  him,  or  may  convict 

citing   the   facts,    as   occtirring   in   such    immediate  ^im    of"  the    offense.      A    justice    may    punish    for 

view    and    presence,    adjudging    that    the    person  contempts,     by     fine    or    imprisonment,     or    both; 

proceeded    against    is    thereby    guilty    of    a    con-  gup^   fi„g   „„,-to   exceed   in   any   case  one   hundred 

tempt     and   that    he    be    punished   as   therein   pre-  dollars,   and   such   imprisonment  one   day." 
scribed.      \\  hen    the    contempt    is    not    committed 

§  908.  Same.  When  the  contempt  is  not  committed  in  the  immediate 
view  and  presence  of  the  justice,  a  warrant  of  arrest  may  be  issued  by  such 
justice,  on  which  the  person  so  guilty  may  be  arrested  and  brought  before 
the  justice  immediately,  when  an  opportunity  to  be  heard  in  his  defense  or 
excuse  must  be  given.  The  justice  may,  thereupon,  discharge  him,  or  may 
convict  him  of  the  offense. 

Compare  post,  §§  1212  et  seq.  based   on   Practice   Act,    §    617.      See   ante,   Legis- 

Legislation  8  908.      Enacted   March   11,    1872;        lation  §  907. 

§  909.  Punishments  for  contempts.  A  justice  may  punish  for  con- 
tempts, by  fine  or  imprisonment,  or  both ;  such  fine  not  to  exceed,  in  any 
case,  one  hundred  dollars,  and  such  imprisonment  one  day. 


1013  DOCKET — CONVICTION  ENTERED  IN — CONTENTS  OF.  §§  910,  911 

Legislation  8  909.     Enacted  Marrh   11.   1872;       not  prevent  him   from   ailiudgine,   that,   if 

cased   on   Practice   Act,    §    (il7.      See    ante.    Leeis-         i.u„    , j. ,,.    v-«    *u  .  ■ '.    "     Z^'  .' 

lation  §  907.  •       (^  the  contempt   be   the   omission   to  perform 

-,       .        ..           .          ^.  ,„,  .           ^.  any  act,  the  guilty  person  may  be  impris- 

Construction    of     section  This    section  oned  until  performance.   Ex  parte  Latimer. 

merely   limits   the   power  of  the  justice   to  ^-  (-j^]    j^j                                     ^                           ' 

punish    for    a    conteiiii)t    as  such:    it    does 

§910.  The  conviction  must  be  entered  in  the  docket.  The  oonviVtion. 
specifying  particularly  the  offense  and  the  judgment  thereon,  must  be  entered 
by  the  .iustice  in  hi.s  docket. 

Legislation  8  910.      Enacted    March    11,     1873         "must"  for  "shall." 
(based     on    Practice    Act,     §     018),     substituting 

CHAPTER  XI. 

DOCKETS  OF  JUSTICES. 

9  911.     Pockot.  what  to  contain.  §916.     A    justice    may    issue    execution    or    other 

§  912.    Entries    therein    prima   facie    evidence   of  process  upon  the  docket   of  bis  prede- 

the  fact.  cessor. 

§  913.     An  inde.x  to  the  docket  mu.st  be  kept.  §  917.     Successor     of     a    justice,     who     shall     be 

§  914.     Dockets    must   be   delivered    by   justice   to  deemed. 

his  successor,   or  to  county  clerk.  §918.     Two  justices   deemed   successors    superior 

§  915.     Proceedings    when    office    becomes    vacant,  court  shall  designate  one. 

and  before  a  successor  is  appointed. 

§  911.  Docket,  v^rhat  to  contain.  Every  justice  must  keep  a  book, 
denominated  a  "docket,"  in  which  he  must  enter: 

1.  The  title  of  every  action  or  proceeding. 

2.  The  object  of  the  action  or  proceeding;  and  if  a  sum  of  money  be 
claimed,  the  amount  thereof. 

3.  The  date  of  the  summons,  and  the  time  of  its  return ;  and  if  an  order 
to  arrest  the  defendant  be  made,  or  a  writ  of  attachment  be  issued,  a  state- 
ment of  the  fact. 

4.  The  time  when  the  parties,  or  either  of  them,  appear,  or  their  non- 
appearance, if  default  be  made;  a  minute  of  the  pleadings  and  motions; 
if  in  writing,  referring  to  them;  if  not  in  writing,  a  concise  statement  of 
the  material  parts  of  the  pleading. 

5.  Every  adjournment,  stating  on  whose  application  and  to  what  time. 

6.  The  demand  for  a  trial  by  jury,  when  the  same  is  made,  and  by  whom 
made,  the  order  for  the  jury,  and  the  time  appointed  for  the  return  of  the 
jury  and  for  the  trial. 

7.  The  names  of  the  jurors  who  appear  and  are  sworn,  and  the  names  of 
all  witnesses  sworn,  and  at  whose  request. 

8.  The  verdict  of  the  jury,  and  when  received;  if  the  jury  disagree  and 
are  discharged,  the  fact  of  such  disagreement  and  discharge. 

9.  The  judgment  of  the  court,  specifying  the  costs  included  and  the  time 
when  rendered. 

10.  The  issuing  of  the  execution,  when  issued  and  to  whom;  the  renewals 
thereof,  if  any,  and  when  made,  and  a  statement  of  any  money  paid  to  tlu^ 
justice,  when  and  by  whom. 

11.  The  receipt  of  a  notice  of  appeal,  if  any  be  given,  and  of  the  appeal 
bond,  if  any  be  filed. 

Docket  in  justices'  court  in  cities  and  counties.  (2)    in    snbd.   2.   changing    (a)    "be"   to   "is"   anil 

Ante,  5  93.  (b)    "of  the   demand"   to   "thereof":    (3)    in  subd. 

Legislation  §  911.      1.  Enacted  March  11,  1872  •^.    changinc    (a)    "be"    to    "is"    in    both   instances, 

(based   on   Practice  Act,    §    G04),    (1)    in   introduc-  and     (b)     "these     facts"     to     "the     fact":     (4)     in 

tory     paragraph,      (a)      substituting     "must"     for  subd.    4,     (a)    changing    "be"    to    "is"    after    "dc 

"shall"    in    both    instances,    and    (b)     transposing  fault,"    (b)    adding    "and    motions"    after    "ple.id 

the    article    "a"    outside    of    the    quotation-marks:  ings,"     (c)     changing,    after    "parts    of    the."    the 


912 


DOCKETS  OF   JUSTICES. 


1014 


word  "pleading"  to  "pleadings,"  and  adding 
thereafter  the  words  (which  were  stricken  out  in 
1873-74),  "and  (if  all  motions  made  during  the 
trial  by  either  party,  and  his  decisions  thereon"  ; 

(5)  subd.  5  (no  change  being  made  from  the 
Practice  Act)  having,  after  "application,"  the 
words    "whether   on    oath,    evidence,    or    consent" ; 

(6)  in  subd.  6,  changing  "trial  and  return  of 
the  jury"  (sic)  to  "return  of  the  jury  and  for 
the  trial";  (7)  in  subd.  7,  (a)  changing  "jury" 
to  "jurors"  and  (b)  adding  "and"  before  "the 
names";  (8)  adding  a  subd.  10  (stricken  out  in 
1873-74).  reading  "The  motion  for  a  new  trial, 
when  made,  and  how  disposed  of";  (9)  subd.  10 
renumbered  subd.  11  (the  present  subd.  10), 
(a)  adding  "the"  before  "execution"  and  (b) 
omitting  "apd"  after  "justice";  (10)  subd.  11 
renumbered  subd.  12  (the  present  .subd.  11),  add- 
ing, after  "given,"  the  words  "and  of  the  appeal 
bond,  if  any  be  filed." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  334. 

Entry  is  ministerial  duty.  The  entry 
of  the  non-appearance  of  the  defendant  is 
a  ministerial  duty:  it  is  made  by  the  clerk 
of  the  justices'  court  in  the  city  and 
county  of  San  Francisco.  Hall  v.  Justice's 
Court,  5  Cal.  App.  133;  89  Pac.  870. 

Verdict  and  judgment  must  be  entered. 
The  justice  is  required,  by  this  section,  to 
enter  in  his  docket,  separately,  "the  ver- 
dict of  the  jury,  and  when  received,"  and 
"the  judgment  of  the  court,  specifying  the 
costs."  etc.  Thompson  v.  Superior  Court, 
161  Cal.  329;  119  Pac.  98. 

What  need  not  be  entered  in  docket. 
The  fact  of  the  residence  of  the  defendant 
is  a  jurisdictional  fact,  and  it  must  exist; 
but  the  statute  does  not  require  that  its 
existence  shall  be  recorded  in  the  docket 
of  the  justice,  or  that  it  shall  be  made  to 
appear  in  the  written  evidence  of  the  pro- 
ceedings. Jolley  V.  Foltz,  34  Cal.  321. 
The  justice  is  not  required  to  enter  in 
his  docket  any  minute  of  the  service  of 
notice  of  the  time  of  trial,  nor  to  file  any 
proof  of  such  service,  under  this  section. 
Weimmer  v.  Sutherland,  74  Cal.  341;  15 
Pac.  849.  The  provision  of  this  section 
relating  to  summons  is,  merely,  that  its 
date,  and  the  time  of  its  return,  shall  be 
stated  in  the  docket;  but  neither  this  sec- 
tion nor  §912,  post,  requires  the  fact  of 
service  of  summons  to  be  entered  in  the 


§ 


docket.  Fisk  v.  Mitchell,  124  Cal.  359;  57 
Pac.  149;  Ferguson  v.  Basin  Consolidated 
Mines,  152  Cal.  712;  93  Pac.  867.  Affida- 
vits for  attachments  in  a  justice's  court 
are  not  required  to  be  noted  in  the  docket 
of  the  justice,  under  this  section.  Banning 
V.  Marleau,  133  Cal.  485;  65  Pac.  964. 

Result  of  failure  to  make  entry.  The 
fourth  subdivision  of  this  section,  and 
§  912,  post,  respecting  the  making  of  en- 
tries, provide  merely  for  ministerial  duties; 
and  the  failure  to  execute  such  duties  in 
proper  time  does  not  divest  the  court  of 
jurisdiction.  Hall  v.  Justice's  Court,  5  Cal. 
App.  133;  89  Pac.  870. 

Dockets  of  justices  of  the  peace.  See  note  87 
Am.  St.  Rep.  672. 

CODE  COMMISSIONEBS'  NOTE.  Subdivis- 
ion 10,  providing  for  entry  in  the  justice's 
docket  of  all  motions  for  new  trials,  etc.,  should 
have  been  omitted,  since  the  justice,  under  the 
code,  has  now  no  power  to  grant  a  new  trial. 
This  provision  can,  however,  do  no  harm.  Its 
presence  is  simply  an  oversight. 

Judgment  will  not  be  set  aside,  on  appeal, 
because  the  justice  failed  to  enter  in  his  docket 
that  the  summons  was  returned  "served."  Ser- 
vice can  be  shown  by  the  return  of  the  officer 
on  the  summons.  Denmark  v.  Liening,  10  Cal. 
93.  And  if  the  justice's  docket  showed  that 
the  summons  was  "returned  duly  served,"  it 
does  not  prove  service,  and  amounts  to  noth- 
ing, if  the  officer's  return  fails  to  show  proper 
service.  Lowe  v.  Alexander,  15  Cal.  296;  Row- 
ley v.  Howard,  23  Cal.  403.  The  record  of 
an  action  in  a  justice's  court  must  show  affirma- 
tively that  the  suit  was  brought  in  the  proper 
township,  or  the  judgment  will  be  void.  Objec- 
tion is  not  waived  because  defendant  failed  to 
appear  and  object  that  the  suit  was  commenced 
in  the  wrong  township.  Lowe  v.  Alexander,  15 
Cal.  296.  The  residence  of  defendant  is  a 
jurisdictional  fact,  but  it  is  not  required  that 
the  existence  of  this  fact  should  be  entered  in 
the  justice's  docket,  or  appear  in  the  written 
evidence  of  the  proceedings;  and  to  support  a 
judgment  of  a  justice,  it  is  competent  to  admit 
parol  evidence  o€  residence,  and  such  jurisdic- 
tional facts  as  are  not  required  to  be  entered 
in  the  docket.  Such  evidence  does  not  contra- 
dict the  docket,  but,  on  the  contrary,  it  is  en- 
tirely consistent  with  it,  and  is  in  support  of 
the  judgment.  Jolley  v.  Foltz,  34  Cal.  326; 
see  also  Blair  v.  Hamilton,  32  Cal.  50.  The 
docket  of  the  justice  is  primary  evidence;  its 
omissions  may  be  supplied  from  other  sources 
when  it  becomes  necessary.  Blair  v.  Hamilton, 
32  Cal.  50. 


912.  Entries  therein  prima  facie  evidence  of  the  fact.  The  several 
particulars  of  the  last  section  specified  must  be  entered  under  the  title  of 
the  action  to  which  they  relate,  and  (unless  otherwise  in  this  title  pro- 
vided) at  the  time  when  they  occur.  Such  entries  in  a  justice's  docket, 
or  a  transcript  thereof,  certified  by  the  justice,  or  his  successor  in  office,  are 
prima  facie  evidence  of  the  facts  so  stated. 

entries  required  to  be  made  in  a  justice's 
docket  are  prima  facie  evidence  of  the 
facts  stated.  Ferguson  v.  Basin  Consoli- 
dated Mines,  152  Cal.  712;  93  Pac.  867, 
A  justice's  docket  is  prima  facie  evidence 
of  the  facts  stated  therein:  it  is  error  to 
exclude  it,  when  offered  in  evidence 
(Kriste  v.  International  Savings  etc.  Bank, 
17  Cal.  App.  301;  119  Pac.  (366);  but  it 
is  not  evidence  of  matters  not  required  to 
be    inserted    therein,    such    as    service    of  . 


Prima  facie  evidence.    Post,  §  1833. 

Legislation  g  912.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  605,  which  read:  "The 
several  particulars  of  the  last  section  specified 
shall  be  entered  under  the  title  of  the  action  to 
which  they  relate,  and  at  the  time  when  they 
occur.  Such  entries  in  a  justice's  docket,  or  a 
transcript  thereof,  certified  by  the  justice  or  his 
successor  in  office,  shall  be  primary  evidence  to 
prove   the  facts  so   stated  therein." 

2.  Amended  by  Code  Amdts.  1880,  p.  20, 
substituting  "prima   facie"    for   "primary." 

Entries  prima  facie  evidence  when.     The 


1015  DOCKET,  INDEX  TO — DELIVERY  TO  SUCCESSOR — VACANCY.       §§  913-915 

summons.    Ferguson   v.  Basin   Con.  Mines,  were  attached  together,  and  include  a  copy 

152    Cal.   715;    93   Pac.   8()7.     This   section  of  the  docket  entries   in   the  action,  curti- 

and  §  911,  ante,  do  not  require  the  fact  of  fied   by   the  justice,  and   such   copy   being 

service   of  summons  to  be   entered   in   the  prima   facie   evidence   of   the   facts   stated 

justice's  docket;  hence,  they  do  not  impart  therein,    under    this    section,    and    the    ad- 

to   such   entry,   if   made,   the   character   of  mission  of  the  pajjers  as  evidence  was  ob- 

prima  facie  evidence.   Fisk  v.  Mitchell,  124  jected   to   as   a   whole,   and   no   particular 

Cal.  359;  57  Pac.  149.     Where  the  docket-  paper  was  specified  as  being  objected   to, 

entries   of  a  justice   of  the  peace   show   a  it   is   proper  to  admit  in  evidence   all   the 

judgment    for    costs,    ai)parently    rendered  jiapers    so    attached    together.      Shatto    v. 

on  the  day  that  the  cause  was  tried,  they  Crocker,  87  Cal.  62!);  2.j  I'ac.  !)21. 
are   prima   facie    evidence    that   such    was  Contradiction  of  docket-entries  by  parol. 

the  truth,  where  they  are  not  rebutted  by  Those    jurisdictional    facts    in    supj)ort    of 

anything  else  in  the  record.    Rauer  v.  Jus-  judgments  in  justices'  courts  which  are  not 

ticc's  Court,  1]5  Cal.  S4;  4(i  Pac.  870.  in  writing,  nor  required  to  be  in  writing, 

Sufficiency  of  entry  as  evidence.  An  nor  in  fact  entered  in  the  docket,  mav  be 
entry  in  the  docket  of  a  justice  of  the  proved  by  parol;  but  the  rule  is  otherwise 
peace,  to  the  effect  that  the  summons  was  where  the  statute  requires  such  facts  to  be 
returned  served,  does  not  show  such  a  ser-  entered  in  the  docket,  and  they  are  so  en- 
vice  as  the  law  requires  to  give  jurisdic-  tered,  or  where  they  actuallv  appear  in 
tion  of  the  person.  Kane  v.  Desmond,  63  the  written  files  of"  the  action,  because 
Cal.  464.  The  justice's  docket,  containing  parol  evidence  in  such  cases  is  not  the  best 
a  minute  of  the  judgment,  is  sufficient  evidence,  and  such  entries  and  writings 
evidence  of  the  judgment.  Beardsley  v.  mav  not  be  contradicted  by  parol  evidence 
Frame,  85  Cal.  134;  24  Pac.  721;  Fisk  v.  Jol'lev  v.  Foltz,  34  Cal.  321. 
Mitchell,124Cal.  3o9;57Pac.  149.  r^^^T^x.  ^«,,„.toot^xt^t,o    „^m„     ^ 

Admissibility  of  copy  of  entries  in  evi-  ,..?°?,^;o^.°Tf,!,«T?o^f;.  T^,  ^,^1^^ 

dence.     \\  here    the    papers    in    a    criminal  v.  Hamilton,  32  Cal.  50. 
action,  tried  before  a  justice  of  the  peace, 

§  913.  An  index  to  the  docket  must  be  kept.  A  justice  must  keep  an 
alphabetical  index  to  his  docket,  in  which  must  be  entered  the  names  of 
the  parties  to  each  judgment,  with  a  reference  to  the  page  of  entry.  The 
names  of  the  plaintiffs  must  be  entered  in  the  index,  in  the  alphabetical 
order  of  the  first  letter  of  the  family  name. 

Legislation  §  913.      Enacted    March    11,    1873         "must"  for  "shall." 
(based     on    Practice    Act,     §     606),     substituting 

§  914.  Dockets  must  be  delivered  by  justice  to  his  successor,  or  to  county 
clerk.  Every  justice  of  the  peace,  upon  the  expiration  of  his  term  of  office, 
must  deposit  with  his  successor  his  official  dockets  and  all  papers  filed  in 
his  office,  as  well  his  own  as  those  of  his  predecessors,  or  any  other  which 
may  be  in  his  custody  to  be  kept  as  public  records. 

Legislation  §  914.  Enacted  March  11,  1872;  livored  to  the  successor  of  s.iid  justice:  and 
based  on  Practice  Act.  §  GOT,  as  amended  by  while  in  his  possession  he  may  issue  execution 
Stats.  1869-70,  p.  223,  which  read:  "It  shall  be  on  a  judsrment,  there  entered  and  unsatisfied 
the  duly  of  every  justice  of  the  peace,  upon  the  (may  make  all  orders  in  proceedings  supple- 
expiration  of  his  term  of  office,  to  deposit  with  mental  to  execution,  and  may  file  notices  and 
his  successor  his  official  dockets  and  all  papers  undertakings  on  appeal,  and  may  take  the  justi- 
filed  in  his  office,  as  well  his  own  as  those  of  his  fication  of  the  sureties,  and  on  the  filing  of  tlie 
predecessors,  or  any  other  which  may  be  in  his  undertaking:  on  appeal,  order  stay  of  execution), 
custody,  to  be  kept  as  public  records.  If  the  in  the  same  maniier  and  with  the  same  effect  as 
office  of  a  justice  become  vacant,  by  his  death  the  justice  -by  whom  the  judgment  was  entered 
or  removal  from  the  township  or  city,  or  other-  might  have  done.  If  there  be  no  other  justice 
■wise,  before  his  successor  is  elected  and  qualified,  in  the  township,  then  the  docket  and  papers  of 
the  docket  and  papers  in  possession  of  such  jus-  such  justice  shall  be  deposited  in  the  office  of 
tice  shall  be  deposited  in  the  office  of  some  the  county  clerk  of  the  county,  to  be  by  him  de- 
other  justice  in  the  township,   to  be   by   him  de-  livered  to  the  successor  in  office  of  the  justice." 

§  915.  Proceedings  when  office  becomes  vacant,  and  before  a  successor 
is  appointed.  If  the  office  of  a  justice  become  vacant  by  his  death  or  re- 
moval from  the  township  or  city,  or  otherwise,  before  his  successor  is 
elected  and  qualified,  the  docket  and  papers  in  possession  of  such  justice 
must  be  deposited  in  the  office  of  some  other  justice  in  the  township,  to  be 
by  him  delivered  to  the  successor  of  such  justice.  If  there  is  no  other  jus- 
tice in  the  township,  then  the  docket  and  papers  of  such  justice  must  be 


§§  916-919      GENERAL   PROVISIONS   RELATING    TO   JUSTICES'    COURTS.  1016 

deposited  in  the  office  of  the  county  clerk  of  the  county,  to  be  by  him 
delivered  to  the  successor  in  office  of  the  justice. 

Legislation  S  915.  Enacted  March  11,  1872;  Stats.  1869-70,  p.  223.  See  ante,  Legislation 
based    on    Practice    Act,    §    607,    as    amended   by         §  914. 

§  916.  A  justice  may  issue  execution  or  other  process  upon  the  docket 
of  his  predecessor.  Any  justice  with  whom  the  docket  of  his  predecessor, 
or  of  any  other  justice,  is  deposited,  has  and  may  exercise  over  all  actions 
and  proceedings  entered  in  such  docket,  the  same  jurisdiction  as  if  origi- 
nally commenced  before  him.  In  case  of  the  creation  of  a  new  county,  or 
the  change  of  the  boundary  between  two  counties,  any  justice  into  whose 
hands  the  docket  of  a  justice  formerly  acting  as  such  within  the  same  terri- 
tory may  come,  is,  for  the  purposes  of  this  section,  considered  the  succes- 
sor of  such  former  justice. 

Legislation  S  916.  Enacted  March  11,  1873  "such  docket"  for  "the  docket  of  his  predeces- 
(based  on  Practice  Act,  §  608,  as  amended  by  sor,"  (c)  "is"  for  "shall"  before  "for  the  pur- 
Slats.  1863,  p.  232),  (1)  inserting  "or  of  any  poses  of  this  section,"  (3)  omitting  "be"  before 
other  justice"  after  "predecessor."  (2)  substitut-  "considered,"  and  (4)  substituting  "such"  for 
ing   (a)    "has  and  may"  for  "shall  have  and,"   (b)  "said"   before    "former." 

§  917.  Successor  of  a  justice,  who  shall  be  deemed.  The  justice  elected 
to  fill  a  vacancy  is  the  successor  of  the  justice  whose  office  became  vacant 
before  the  expiration  of  a  full  term.  When  a  full  term  expires,  the  same 
or  another  person  elected  to  take  office  in  the  same  township  or  city,  from 
that  time  is  the  successor. 

Legislation  §  917.      Enacfed    March    11,    1873         for  "shall  be  deemed,"   in  both  instances, 
(based  on  Practice  Act,   §   609),  substituting  "is" 

§  918.  Two  justices  deemed  successors,  superior  court  shall  designate 
one.  AVhen  two  or  more  justices  are  equally  entitled,  under  the  last  sec- 
tion, to  be  deemed  the  successors  in  office  of  the  justice,  a  judge  of  the 
superior  court  must,  by  a  certificate  subscribed  by  him  and  filed  in  the  office 
of  the  county  clerk,  designate  which  justice  is  the  successor  of  a  justice 
going  out  of  office,  or  whose  office  has  become  vacant. 

Legislation  §  918.      1.  Enacted  March  11,  1873  3.    Amended    by    Code    Amdts.     1880,    p.    20, 

(based  on   Practice  Act,    §   610),   substituting    (1)  substituting   "a   judge   of   the   superior  court"    for 

"must"   for   "shall,"    and    (2)    "is"    for   "shall  be"  "the   county  judge." 
before  "the  successor." 

CHAPTER  XII. 

GENERAL  PEOVISIONS  RELATING  TO  JUSTICES'  COURTS. 

§  919.     Justices    may    issue   subpoenas    and     final  justice  may  attend  on  his  behalf. 

process  to  any  part  of   the  county.  §  923.     Justices  may  require   security  for  costs. 

§  920.     Blanks  must  be  filled  in  all  papers  issued  §  924.     Who  entitled  to  costs.      Attorney's  fee. 

by  a  justice,  except  subpa-nas.  §  925.     What  provisions  of  code  applicable  to  jus- 
§  921.     Justices    to    receive    all    moneys    collected  tices'  courts. 

and  pay  same  to  parties.  §  926.     Deposit  in  lieu  of  undertaking. 
§  922.     In    case    of    disability    of    justice,    another 

§  919.  Justices  may  issue  subpoenas  and  final  process  to  any  part  of  the 
county.  Justices  of  the  peace  may  issue  subpienas  in  any  action  or  pro- 
ceeding in  the  courts  held  by  them,  and  final  process  on  any  judgment 
recovered  therein,  to  any  part  of  the  county. 

Final   process,    issued   to    any   part   of   county.  peace  may  issue  summons  to  any  person,  a  resi- 

Ante,  §§  94,  100.  dent    of    the    proper    tovi^nship,    to    appear    before 

him,    at    his    office,    to    act    as    interpreter    in    any 

Legislation  S  919.  Enacted  March  11,  1873;  action  or  proceedinc  in  the  courts  held  by  him. 
based  on  Prnctioc  Act.  §  619,  as  amended  by  Such  summons  shall  be  served  and  returned  in 
Stats.  1863,  p.  496,  which  read:  ".Justices  of  the  like  manner  as  a  subpoena  issued  by  a  justice, 
peace  may  issue  subpo-nas  in  any  action  or  pro-  Any  person  so  summoned  shall,  for  a  failure  to 
ceeding  in  the  courts  held  by  them,  and  final  attend  at  the  time  and  place  named  in  the  sum- 
process,  or  [on]  any  judgment  reovered  therei)!,  moiis,  be  deemed  guilty  of  a  contempt,  and  may 
to    any    part    of    the    county.     A    justice    of    the  be  punished  accordingly." 


1017  DUTIES — DISABILITY — COSTS,    SECURITY    FOR,    ETC.  §§  920-92-i 

§  920.  Blanks  must  be  filled  in  all  papers  issued  by  a  justice,  except 
subpoenas.  Tlie  suinmons,  ext'cutiou,  and  cveiy  other  paper  iiuulu  or  issued 
by  a  justice,  except  a  subp(rna,  must  be  issued  without  a  blank  left  to  be 
filled  by  another,  otherwise  it  is  void. 

Legislation « 920.     Enncted    Mnnh    11.    1873  sarv    to    the    valid    cxocution    of    the   writ, 

(based   on   Practice   Act,    §   611).   siihstituting  (1)  +i,„"f  fi,„  ui„„i,   „<-•♦„.  tu      ..     .  i  ..  i,  r„     i„    »>> 

"must    be    issued"    for    "shall    be    filed,"    and    (2)  ^'^^^  *''<^   "''»"'^  ^tter  th.'  wonl  ".lotondailt  ' 

"is"  for  "shall  be"  before  "void."  shall    be    filled,    but    if    it    is    necessary,    it 

FiUing   of    blanks    in    execution.     This  niay  be  done  by  amendment,  ^vhich  would 

section    was    intended    to    nivvi-nt    i.ersons,  ^'^^  ''>;.  ^''<^  /'O"""*-    ^'"i    ''V^    "■''^l'"'    '?'    '''"" 

other  than  the  court,  from  making  changes  "*^'7'     ''Joo  ^.  T'aT.  ""t.^^'^  '?'L'""-    ^'■*"'" 

in  a  writ  of  execution;  but  it  is  not  neces-  "'•  ^^'"'"'  ^-^^  ^^^^  ^^^>  '^  Pae.  1G8. 

§  921.  Justices  to  receive  all  moneys  collected  and  pay  same  to  parties. 
Justices  of  the  peace  must  receive  IVoiii  the  sheriff  or  constables  of  their 
county,  all  monej^s  collected  on  any  process  or  order  issued  from  their 
courts  respectively,  and  must  pay  the  same,  and  all  moneys  paid  to  them 
in  their  official  capacity,  over  to  the  parties  entitled  or  authorized  to  receive 
them,  without  delay. 

Legislation  g  921,      1,  Enacted  March  11,  1872  they  may  be  removed  from  their  office,  and  shall 

(based  on  Practice  Act,    §   633),    (1)    substitutinj  be  deemed   etiilty  of  a   misdonieanur." 

(a)  "must"    for    "shall"    in    both    instances,    and  2.    Amended    by    Code    Amdts.     1880,    p.    20, 

(b)  "from"  for  "by"  before  "their  courts":  and  (1)  insertinp  "and  must  pay  the  same"  after 
(2)  omitting,  after  "delay."  at  end  of  section,  "respectively,"  and  (2)  omitting  "and  must  pay 
the    sentence,    "For    a    violation    of    this    section  the  same,"   after  "official  capacity." 

§  922.  In  case  of  disability  of  justice,  another  justice  may  attend  on  his 
behalf.  In  case  of  the  sickness  or  other  disability  or  necessary  absence  of 
a  justice,  another  justice  of  the  same  county  may,  at  his  re^iuest,  attend  in 
his  behalf,  and  thereupon  is  vested  with  the  power  and  may  perform  all 
the  duties  and  issue  all  the  papers  or  process  of  the  absent  justice.  In  case 
of  a  trial  the  proper  entry  of  the  proceedings  before  the  attending  justice, 
subscribed  by  him,  must  be  made  in  the  docket  of  the  justice  before  Avhoni 
the  summons  was  returnable.  If  the  case  is  adjourned,  the  justice  before 
whom  the  summons  was  returnable  may  resume  jurisdiction. 

Legislation  §  922,  1.  Enacted  March  11,  1872;  tending  justice,  subscribed  by  him,  shall  be  made 
based  on  Practice  Act,  §  612,  which  read,  "In  in  the  docket  of  the  justice  before  whom  the 
case  of  the  sickness,  other  disability,  or  neces-  summons  was  returnable.  If  the  case  be  ad- 
sary  absence  of  a  justice  on  a  return  of  a  sum-  journed,  the  justice  before  whom  the  summons 
mons,  or  at  the  time  appointed  for  a  trial,  was  returnable,  may  resume  jurisdiction."  When 
another  justice  of  the  same  township  or  city  §  922  was  enacted  in  1872,  (1)  "or"  was  added 
may,  at  his  request,  attend  in  his  behalf,  and  after  "sickness":  (2)  "thereupon  is"  was  sub- 
shall  thereupon  become  vested  with  the  power,  stituted  for  "shall  thereupon  become,"  (3)  "must" 
for  the  time  being,  of  the  justice  before  whom  for  "shall"  before  "be  made,"  and  (4)  "is"  for 
the  summons  was  returnable.  In  that  case  the  "be"  before  "adjourned." 
proper    entry    of    the    proceedings    before    the    at-  3.   Amended  by  Stats.   1909,  p.  328. 

§  923.  Justices  may  require  security  for  costs.  Justices  may  in  all  cases 
retjuire  a  deposit  of  money  or  an  undertaking,  as  security  for  costs  of  court, 
before  issuing  a  summons. 

Prepayment  of  fees.    Ante,  §  91.  credit,  at  his  election.    Lick  v.  Madden,  2.5   Cal. 

.  ,   ^.        , „       .,^  ,,,.,,      ^om.n  203.      If    the    justice    should    fail    to    demand    the 

Legislation  §  923,      Enacted    March    11,  ^1873  deposit   as   security   for   his   foes,   he    must    never- 

(basod  on   Practice  Act,   §   634),  omitting     of  the  theless    perform    the    dutv    just    the    same    as    if 

peace'    after      justices.  the    deposit    had    been    made.      If    he    wished    the 

CODE     COMMISSIONERS'     NOTE.      This     is  deposit    to    be    made    in    advance,    he   should   have 

optional    with    the    justice.       lie    may    demand    his  demanded    it.     Lick   v.    Madden.  25  Cal.  203. 
fees     in     advance,     or     he     may     allow     the     parly 

§  924.  Who  entitled  to  costs.  Attorney's  fee.  The  prevailing  party  in 
the  justices'  courts  is  entitled  to  costs  of  the  action,  and  also  of  any  pro- 
ceedings taken  by  him  in  aid  of  an  execution,  issued  upon  any  judgment 
recovered  therein.  In  actions  for  the  recovery  of  wages  for  labor  per- 
formed, the  court  shall  add,  as  part  of  the  costs,  in  any  judgment  recovered 
by  the  plaintiff,  an  attorney's  fee  not  exceeding  twenty  per  cent  of  the 
amount  recovered. 


§§925,926      GENERAL   PROVISIONS   RELATING    TO   JUSTICES'    COURTS. 


1018 


Costs,    Ante,  §  896.  an    execution,    issued    upon    any   judgment    recov- 

Legislation  §  924.     1.  Enacted  March  11.  1873,  ered  therein  "                        ^^^„ 

and  then  read:   "The  prevailing  party  in  justices'  "•   Amended  by  Stats.  1907,  p.  69. 

courts  is  entitled  to  costs."  Constitutionality  of  statutes  allowing  attorney's 

2.     Amended  by  Code  Amdts.  1873-74,  p.  335,  fees    to    successful   party.     See   note    79    Am.    St. 

adding,    at    end    of    section,    "of    the    action    and  Rep.  178. 

also   of   any  proceedings    taken   by   him   in   aid   of 

§  925.  What  provisions  of  code  applicable  to  justices'  courts.  Justices' 
courts  being  courts  of  peculiar  and  limited  jurisdiction,  only  those  provis- 
ions of  this  code  which  are,  in  their  nature,  applicable  to  the  organization, 
poAvers,  and  course  of  proceedings  in  justices'  courts,  or  which  have  been 
made  applicable  by  special  provisions  in  this  title,  are  applicable  to  jus- 
tices' courts  and  the  proceedings  therein. 

Peculiar  and  limited  jurisdiction.    Ante,  §§  112-       Hubbard    v.    Superior    Court,    9    Cal.    App. 
11^-  166;  98Pac.394. 

Character  of  jurisdiction  of  justices' 
courts.  This  section  expressly,  preserves 
the  notion  of  the  "peculiar  and  limited" 
jurisdiction  of  justices'  courts,  and  its 
general  character  is  negative,  rather  than 
positive.  Weimmer  v.  Sutherland,  74  Cal. 
341;  15  Pac.  849;  Hubbard  v.  Superior 
Court,  9  Cal.  App.  166;  98  Pac.  394. 

Sections  applicable  to  superior  courts. 
Proceedings  in  superior  courts  are  dealt 
with  in  §§  473,  581,  ante.  Hubbard  v. 
Superior  Court,  9  Cal.  App.  166;  98  Pac. 
394. 

Pleadings  allowed.  This  section  cannot 
be  extended  to  authorize  other  pleadings 
to  be  filed  in  justices'  courts,  than  those 
specifically  enumerated  in  §  852,  ante,  as 
being  permitted  in  such  courts.  Purcell  v. 
Eichardson,  164  Cal.  150;  128  Pac.  31. 

Nonsuit.  A  justice's  court  has  no  power 
to  pass  upon  and  grant  a  motion  for  a 
nonsuit.  Peacock  v.  Superior  Court,  163 
Cal.  701;  126  Pac.  976. 

Action  on  judgment.  An  independent 
action  on  a  judgment  of  a  justice's  court, 
after  the  expiration  of  the  five-year  limi- 
tation pjrescribed  in  §  336,  ante,  is  not  au- 
thorized by  this  section.  John  Heinlen  Co. 
V.  Cadwell,  3  Cal.  App.  80;  84  Pac.  443. 


Legislation  §  925.      Enacted  March  11,  1872. 

Construction  of  section.  The  necessary 
inference  from  the  language  used  in  this 
section  is,  that  those  provisions  of  this 
code  which  are  in  their  nature  "applicable 
to  the  organization,  powers,  and  course  of 
proceedings  in  justices'  courts,"  are  ap- 
plicable to  them.  Ex  parte  Latimer,  47 
Cal.  131.  The  language  of  this  section  is 
difficult  of  construction,  and  cases  may 
well  arise  wherein  it  would  be  extremely 
doubtful  whether  or  not  certain  acts  of  a 
justice's  court  would  be  justified  by  its 
provisions;  the  grant  is  somewhat  in  the 
shape  of  a  parenthesis  in  a  clause  of  limi- 
tation; if,  therefore,  that  part  of  the  code 
which  expressly  deals  with  proceedings  in 
justices'  courts  prescribes  the  powers  of 
those  courts  in  relation  to  a  general  sub- 
ject about  which  the  powers  of  courts 
of  record  are  expressly  prescribed  in  an- 
other part,  then  the  powers  of  the  justices' 
courts  with  respect  to  that  subject  are  to 
be  determined  by  the  provisions  of  the 
code  expressly  applicable  to  them,  and 
not  by  the  provisions  expressly  applicable 
to  courts  of  record.  Weimmer  v.  Suther- 
land,   74   Cal.    341;    15   Pac.   849;    and   see 


§  926.  Deposit  in  lieu  of  undertaking.  In  all  civil  cases  arising  in  jus- 
tices' courts,  wherein  an  undertaking  is  required  as  prescribed  in  this  code, 
the  plaintiff  or  defendant  maj^  deposit  with  said  justice  a  sum  of  money 
in  United  States  gold  coin  equal  to  the  amount  required  by  tlie  said  under- 
taking, which  said  sum  of  money  shall  be  taken  as  security  in  place  of  said 
undertaking. 

undertaking  for  costs  on  appeal,  required 
bv  the  first  clause  of  §  978,  post.  Laws  v. 
Troutt,  147  Cal.  172;  81  Pac.  401.  An 
appeal  may  be  perfected  by  making  a  de- 
posit of  a  hundred  dollars  with  the  jus- 
tice, instead  of  giving  an  undertaking. 
Swem  V.  Monroe,  148  Cal.  741;  83  Pac. 
1074.  A  deposit  of  the  requisite  amount 
of  money,  in  lieu  of  an  undertaking  on 
appeal,  gives  the  superior  court  jurisdic- 
tion of  the  appeal.  Pacific  Window  Glass 
Co.  v.  Smith,  8  Cal.  App.  762;  97  Pac.  898. 
Undertaking  on  appeal  in  justices' 
courts.    See  note  post,  §  978. 


Legislation  S  926.  Added  by  Code  Amdts. 
1877-78.  p.  103. 

Section  not  repealed.  This  section  was 
not  rejiealed  by  imjdication  by  the  amend- 
ment of  §  97S,  post,  in  ISSO,  which  made 
no  change  as  to  the  bond  on  appeal,  al- 
though the  act  by  which  it  was  amended 
concluded  with  a  clause  repealing  all  acts 
and  parts  of  acts  in  conflict  therewith. 
Swem  V.  Monroe,  148  Cal.  741;  83  Pac.  1074. 

Appeal  to  superior  court,  deposit  in  lieu 
of  undertaking.  The  provisions  of  this 
section,  authorizing  a  deposit  in  lieu  of 
an  undertaking  for  costs  on  ajipcal  to 
the   superior   court,   are   applicable   to   the 


1019  POLICE    COLKTS — CIVIL   ACTIONS — SUMMONS,    JURY,   ETC.       §§929-933 

TITLE  XTI. 
PROCEEDINGS   IX   CIVIL   ACTIOxXS    IN   POLICE    COURTS. 

5  929.  How  commenced.  §  932.     Trial  by  jury,  when   defendant  is   entitled 

§  930.  Summons  must  issue  on  filing  complaint.  '"• 

5  not  -r.  f      1      *              1      1         n                     •»•  8  933.    ProceedinRs    to    be    conducted  as   in   ius- 

931.  Defendant  may  plead  orally  or  in  writing.  tices'  courts                         i.  cu  oo     u    j 

§  929.  How  commenced.  Civil  actions  in  police  courts  are  commenced 
by  filing  a  complaint,  setting  forth  the  violation  of  the  ordinance  com- 
plained of,  with  such  particulars  of  time,  place,  and  manner  of  violation  as 
to  enable  the  defendant  to  understand  distinctly  tlie  character  of  the  vio- 
lation complained  of.  and  to  aniswer  tlie  comi)laint.  The  ordinance  may  be 
referred  to  by  its  title.  The  complaint  must  be  verified  by  the  oath  of  the 
party  complaining,  or  of  his  attorney'  or  agent. 

Jurisdiction    of    police    court.     See    Pol.    Code,  ferred    on    the    police    courts,    and    not    on 

|§^4426,    4427.     See    also    post.   §§   1068.1085,  Justices'   courts;    there   is   no   provision    of 

Provisions  relating  to  police  judges.    See  Pol.  the  law  to  authorize  a  transfer  of  an   ac- 

Cotlc,  §§  142  1-1 1:;2.  tion   from  the   police  court  to  the   district 

Legislation  8  929.    Enacted   March    11,    1873  <'ourt  (."Santa  Cruz  v.  Santa  Cruz  R.  R.  Co., 

(based  on  Practice  Act,   §   (Ui6),  substituting   (1)  ')(]    Cal.    143);     but    in    Santa    Barbara    V. 

"police    courts    are"    for    "recorder's    and    mayor's  TTl/li-o,!      QK    r^d      qto      Qn    td„^      rm      -i. 

courts  shall  be,"  and  (2)  "must"  for  "shall."  T     ,      V    ^^  .^^^-    ^'^>    ^^    ^^C.    o62,    it    was 

■        .    ,.  ^.             ,  ^         ^         ^                   .  held,  that,  in  an  action  brou<rht  in  a  police 

Jurisdiction  and  transfer  of  cause.     An  eourt  to  recover  taxes,  where  the  answer 

action  to  recover  a  fine,  forfeiture    or  peu-  raises   an  issue   as   to   the   iegalitv   of   the 

alty,  imposed  by  an   ordinance   of  a   city,  tax  sought  to  be  recovered,  it  is  the  dutv 

may    perhaps    be    maintained    in    a    police  of  the  court  to  transfer  the  action  to  the 

court   as   a   civil   action,   where   a   certain  superior    eourt    for     trial,    under    the    pro- 

and   specific   sum   is   imposed   as   a   fine   or  visions    of    §838,    ante,    which    applies    to 

penalty   for   the   breach   of   an    ordinance;  poji^e  courts  as  well  as  to  justices'  courts, 
but  the  jurisdiction  or  such  actions  is  con- 

§  930.  Summons  must  issue  on  filing  complaint.  Immediately  after  fil- 
ing the  complaint  a  summons  must  be  issued,  directed  to  the  defendant,  and 
returnable  either  immediately  or  at  any  time  designated  therein,  not  ex- 
ceeding four  days  from  the  date  of  its  issuing. 

Legislation  §  930.  Enacted  March  11,  1873  "must"  for  "shall"  after  "summons,"  and  (2) 
(based  on  Practice  Act,   §  637),  substituting   (1)         "issuing"  for  "issuance." 

§  931.  Defendant  may  plead  orally  or  in  writing.  On  the  return  of  the 
summons,  the  defendant  may  answer  the  complaint.  The  answer  may  be 
oral  or  in  writing,  and  immediately  thereafter  the  ease  must  be  tried,  unless, 
for  good  cause  shown,  an  adjournment  is  granted. 

Legislation  §  931.      Enacted    March    11,    1873;  deny    the    same.      Such    plea,    answer,    or    denial, 

based   on   Practice    Act.    §    C38,   which   read:    "On  may  be  oral  or  in  writing,  and  immediately  there- 

the    return    of    the    summons    the    defendant    may  after    the    case    shall    be    tried,    unless    for    good 

plead    to    the    complaint,    or    he    may    answer    or  cause  shown  an  adjournment  be  granted." 

§  932.  Trial  by  jury,  when  defendant  is  entitled  to.  In  all  actions  for 
violation  of  an  ordinance,  wliere  tlie  fine,  forfeiture,  or  penalty  imposed  by 
the  ordinance  is  less  than  fifty  dollars,  the  trial  must  be  by  the  court.  In 
actions  where  the  fine,  forfeiture,  or  penalty  imposed  by  the  ordinance  is 
over  fifty  dollars,  the  defendant  is  entitled  to  a  trial  by  jury. 

Legislation   %  932.     Enacted   March   11,   1873         titled   to  a   trial  by  jury"   for   "shall  be   entitled, 

(based  on  Practice  Act,   §   (i:!!)),   substitutins    (1)         if  demanded  by  him,  to  a  jury  of  six  persons." 
"must"   for  "shall"   after  "tiial,"   and   (2)    "is  en- 

§  933.  Proceedings  to  be  conducted  as  in  justices'  courts.  All  proceed- 
ings in  civil  actions  in  police  courts  must,  except  as  in  this  title  otherwise 


§933 


POLICE  COURTS — CIVIL  ACTIONS  IN — PROCEEDINGS. 


1020 


provided,  be  conducted  in  the  same 
courts. 

Civil  proceedings  in  justices'  courts.  Ante, 
§§  832-926. 

Disqualification  of  police  judge.  Calling  in  oi 
justice  of  tlie  peace.     See  Pol.   Code,  §  4428. 

Legislation  §  933.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  641,  which  read:_  "All 
proceedings  in  civil  actions  in  recorders  and 
mavors'  courts,  except  as  herein  otherwise  pro- 
vided, shall  be  conducted  in  the__same  manner  as 
in  civil  actions  in  justices'  courts." 

Jurisdiction  where  ordinance  is  violated. 

The  police  court  has  jurisdiction  of  all  pro- 
ceedings for  the  violation  of  any  ordinance 


manner  as  civil  actions  in  justices' 

of   a   city.    Santa   Barbara  'v.   Stearns,   51 
Cal.499. 

Transfer  to  superior  court.  Where,  in 
an  action  in  a  police  court  to  recover  a 
license  tax  for  the  transaction  of  business, 
the  answer  denies  the  legality  of  the  tax, 
the  police  court  cannot  try  the  cause,  but 
must  transfer  it  to  the  superior  court. 
Santa  Barbara  v.  Eldred,  95  Cal.  378;  30 
Pac.  562;  Santa  Barbara  v.  Stearns,  51  Cal. 
499. 


1021 


APPE.VLS— CIVIL    ACTIONS — JUDGMENT    OR    ORDER. 


§936 


TtTLE  Xlir. 
APPEALS    IN    CIVIL    ACTIONS. 

Chapter  I.  Appeals  in  Goiicral.      §§  !)3(5-!)."i). 

II.  Appeals  to  Supreme  Court.     §S  963-971. 

III.  Ai)peals  to  Sui)orior  Courts.     §§  974-9S0. 

IV.  Appeals  from    i'robate    Courts.      [Repealed.] 
V.  Appeals  to  County  Courts.     [Repealed.] 


CHAPTER  L 

APPEALS  IN  GENERAL. 


§  936.     Judgmrnt  and  orders  may  be  reviewed. 

§  93  7.  Orders  made  out  of  court,  without  notice, 
may  be  reviewed  by  tlie  judge. 

§  938.  Party  aggrieved  may  appeal.  Names  of 
parties. 

§  939.     Within  what  time  appeal  may  be  taken. 

§  940.    Appeal,  how  taken. 

§  941.     Undertaking  or  deposit  on  appeal. 

§  941a.  Appeals.     Alternative  method. 

§  941b.  Notice  of  appeal,  what   to  contain. 

§  941c.  Eflfect  of  appeal. 

§  942.  Undertaking  on  appeal  from  a  money 
judgment. 

§  943.  Appeal  from  a  judgment  for  delivery  of 
documents. 

§  944.  Appeal  from  a  judgment  directing  execu- 
tion  of  a   conveyance,  etc. 

§  945.  Undertaking  on  appeal  concerning  real 
property. 

§  946.  Release  of  property  under  levy,  on  ap- 
peal.     iVttachment   not   continued. 

§  947.  Undertaking  may  be  in  one  instrument  or 
several. 

§  948.  Justification  of  sureties  on  undertakings 
on  appeal. 


§  949.     Undertakings  in  cases  not  specified. 

§  950.      What   papers   to  be  used  on  appeal   from 

the  judgment. 
§  951.      What  papers  used  on  appeals  from  orders, 

except  orders  granting  new  trials. 
S  952.      What  papeis   to   be  used  on   appeal   from 

an  order  granting  a   new   trial. 
§  953.      Copies    and    undertakings,    how    certified. 
S  953a.  Preparation    of    papers    on    appeal.     No- 
tice to  county  clerk. 
§  953b.   Payment  of  cost  of  transcript. 
§  953c.  Clerk  to  transmit  the  prepared  record   on 

appeal. 
§  954.    When  an  appeal  may  be  dismissed.    When 

not. 
§  955.     Effect  of  dismissal. 
§  956.     What    may    be    reviewed    on    appeal    from 

judgment. 
§  957.     Remedial   powers  of  an  appellate  court. 
§  958.     On   judgment    on    appeal,    remittitur    must 

be    certified    to    the    clerk    of    the    court 

below. 
§  959.     Provisions   of   this   chapter  not   applicable 

to  appeals  to  superior  courts. 


§  936.  Judgment  and  orders  may  be  reviewed.  A  judgment  or  order, 
in  a  civil  action,  except  when  expressly  made  final  by  this  code,  may  be 
reviewed  as  prescribed  in  this  title,  and  not  otherwise. 

Judgments  and  orders,  appeal  from.  Post,  §  939.       titled  to  a  writ  of  certiorari.    Newman  v. 

Superior  Court,  62  Cal.  .545. 

Loss  of  right  to  appeaL  Where,  in  an 
action  to  enjoin  the  issuance  of  a  tax  deed, 
the  plaintiff  ajtpcals  from  a  judgment  ren- 
dered against  him,  he  thereby  abandons 
his  remedy  by  appeal  by  afterwards  re- 
deeming the  property  by  paying  the  taxes 
and  costs.  Dehail  v.  Los  Angeles,  5  Cal. 
Unrep.  866;  51  Pac.  27.  The  right  to  ac- 
cept the  fruits  of  a  judgment,  and  the 
right  of  appeal  therefrom,  are  not  concur- 
rent, but  are  totally  inconsistent;  hence, 
an  election  to  accept  either  of  such  rights 
is  a  renunciation  of  the  other.  Estate  of 
Shavers,  1.31  Cal.  219;  6:5  Pac.  340.  Where 
a  plaintiff  accejds  money  ordered  to  be 
paid  by  the  defendant,  as  for  costs  and 
expenses,  as  a  condition  of  an  order  set- 
ting aside  a.  judgment  by  default,  he  is 
deemed  to  have  consented  to  the  order, 
and  to  have  waived  the  right  to  appeal. 
San  Bernardino  Couutv  v.  Riverside 
County,  135  Cal.  CIS;  6*7  Pac.  1047.  .'V 
party  does  not  lose  his  right  to  appeal  by 
I)aymeut  of  the  judgment,  unless  the  pay- 


Legislation  S  936.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  333,  as  amended  by 
Stats.  1854,  Redding  ed.  p.  64,  Kerr  ed.  p.  91), 
substituting  (1)  "code"  for  "act,"  and  (2)  "in" 
for  "by"  after  "prescribed." 

2.  .Amendment  by  .Stats.  1901,  p.  171,  chan- 
ging the  number  to  §  934;  unconstitutional.  See 
note  ante,  §  5. 

Appeal  lies  when.  When  the  conclusion 
of  the  court  is  unsupported  by  the  facts 
found,  the  remedy  is  by  appeal  from  the 
judgment.  Cargnani  v.  Cargnani,  16  Cal. 
.\pp.  96;  116  Pac.  306.  An  order  based 
on  conflicting  affidavits  will  not  be  dis- 
turbed on  a[ipeal.  Asiatic  Club  v.  Biggy, 
160  Cal.  713;  117  Pac.  912.  Where  the 
complainant's  bill  is  wholly  without  equity, 
a  judgment  is  properly  rendered  upon  de- 
murrer thereto,  and  an  appeal  therefrom 
will  be  treated  as  frivolous.  Pacific  De- 
benture Co.  V.  Caldwell,  147  Cal.  106;  81 
Pac.  314. 

Exclusiveness  of  right  to  appeal.  A 
writ  of  error  does  not  lie,  where  an  appeal 
is  authorized  bv  the  code  (Haight  v.  Gav, 
8  Cal.  297;  68 'Am.  Dec.  323);  and  where 
a  party  has  a  right  to  appeal,  he  is  not  en- 


§936 


APPEALS   IN    GENERAL. 


1022 


ment  was  by  way  of  compromise,  or  with 
an  agreement  not  to  take  or  pursue  the 
appeal.  Warner  Bros.  Co.  v.  Freud,  131 
Cal.  639;  82  Am.  St.  Eep.  400;  63  Pac.  1017. 
An  enforcement  of  the  judgment  by  the 
plaintiff  does  not  deprive  the  defendant 
of  his  right  to  appeal.  Eamsbottom  v, 
Fitzgerald,  6  Cal.  Unrep.  214;  55  Pac.  984. 
The  i^laintiff  cannot  deprive  the  defendant 
of  his  right  to  appeal,  and  to  be  restored 
to  rights  lost  by  reason  of  the  judgment 
in  case  of  reversal,  by  enforcing  the  judg- 
ment, and  entering  satisfaction  of  it, 
before  the  time  to  appeal  has  expired. 
Kenney  v.  Parks,  120  Cal.  22;  52  Pac.  40. 
The  satisfaction  of  the  judgment  by  set- 
ting off  against  it  a  judgment  in  favor  of 
the  appellant  does  not  cut  off  his  right  to 
appeal.  Haskins  v.  Jordan,  123  Cal.  157; 
55  Pac,  786.  The  fact  that  a  creditor, 
who  appealed  from  an  adjudication  of  in- 
solvency, made  claim  and  proof  of  his 
debt  in  the  superior  court,  does  not  estop 
him  to  pursue  his  appeal.  In  re  Chope,  112 
Cal.  630;  44  Pac.  1066;  and  see  Stateler  v. 
Superior  Court.  107  Cal.  536;  40  Pac.  949. 

Judgment  of  dismissal  not  consent  judg- 
ment when.  Where  items  in  a  complaint 
have  been  stricken  out,  so  that  less  than 
the  jurisdictional  amount  is  left,  the  fact 
that  both  parties  thereafter  admit  that  the 
court  has  no  jurisdiction  of  such  residue, 
does  not  render  a  judgment  of  dismissal  a 
consent  judgment.  Placer  County  v.  Free- 
man, 149  Cal.  73.8;  87  Pac.  628. 

Findings,  absence  of  evidence  to  support. 
The  entire  absence  of  evidence  in  support 
of  a  finding  necessary  to  sustain  a  judg- 
ment presents  a  question  of  law.  Troy 
Laundry  Machinery  Co.  v.  Drivers'  Inde- 
pendent Laundry  Co.,  14  Cal.  App.  152;  111 
Pac.  121. 

Conclusiveness  of  recitals  in  judgment. 
A  recital  by  .the  court,  in  the  judgment 
appealed  from,  that  findings  of  fact  and 
conclusions  of  law  were  waived  by  the 
failure  of  the  defendant  to  appear  and  par- 
ticipate in  the  trial,  must,  in  the  absence 
of  any  showing  to  the  contrary,  be  re- 
garded as  conclusive.  Kritzer  v.  Tracy  En- 
gineering Co.,  16  Cal.  App.  287;  116  Pac. 
700. 

Presumption  in  favor  of  judgment.  All 
presumptions  are  in  favor  of  the  action  of 
the  court  below.  Estate  of  Voght,  1-54  Cal. 
508;  98  Pac.  265;  Niles  v.  Gonzalez,  155 
Cal.  359;  100  Pac.  1080;  Union  Lumber  Co. 
V.  Webster,  15  Cal.  App.  165;  113  Pac. 
891;  Serpiglio  v.  Downing,  14  Cal.  App. 
683;  112  Pac.  905. 

Jurisdiction  of  appellate  court.  The 
amount  of  money  involved  in  an  appeal 
from  an  order  of  the  superior  court,  taxing 
costs,  is  not  determinative  of  the  jurisdic- 
tion of  the  appellate  court.  Mever  v.  Per- 
kins, 20  Cal.  Ayip.  661;  130  Pac.  206,  208. 

Appeal  taken  how.  A  judgment  or  order 
in  a  civil  proceeding,  which  is  not  ex- 
pressly  made    final    by    the   code,   can   be 


reviewed  by  the  supreme  court,  only  when 
it  is  brought  up  on  an  appeal  pursuant  to 
the  code;  hence,  an  appeal  taken  in  any 
other  than  the  prescribed  mode  is  abortive, 
and  leaves  the  case  below  undisturbed. 
Home  for  Inebriates  v.  Kaplan,  84  Cal.  486; 
24  Pac.  119.  An  appeal  in  a  probate  or 
guardianship'  proceeding  must  be  taken 
under  §  1715,  post.  Estate  of  Dunphy,  158 
Cal.  1;  109  Pac.  627.  The  rules  of  practice 
relating  to  appeals  under  the  McEneruey 
Act  are  those  applicable  to  other  civil  ac- 
tions. Potrero  Nuevo  Land  Co.  v.  All  Per- 
sons, 155  Cal.  371;  101  Pac.  12. 

Rules  of  appellate  courts.  The  authority 
to  make  rules  of  practice  in  the  courts  of 
appeal  is  vested  by  the  constitution  in  the 
supreme  court.  San  Joaquin  etc.  Irriga- 
tion Co.  V.  Stevinson,  16  Cal.  App.  235; 
116  Pac.  378.  The  rules  of  the  supreme 
court  are  a  part  of  the  system  of  appel- 
late procedure.  Eeclamation  District  v. 
Sherman,  11  Cal.  App.  399;  105  Pac.  277. 
The  ruling  against  dismissal  in  this  case, 
for  serious  nonconformitj^  of  the  transcript 
to  the  seventh  and  eighth  rules  of  the  su- 
preme court,  is  no  guide  as  a  precedent  for 
any  future  case  showing  inexcusable  breach 
of  the  rules  of  the  court.  Naylor  v,  Adams, 
15  Cal.  App.  548;  115  Pac.  335. 

Briefs  and  argument  on  appeal.  Coun- 
sel should  file  briefs  to  assist  the  court  in 
the  determination  of  cases.  Harvey  v. 
Meigs,  17  Cal.  App.  360;  119  Pac.  941.  The 
appellant  should  make  the  points  on  which 
he  relies  in  his  opening  brief,  and  not  re- 
serve them  for  his  reply;  the  court  may 
properly  consider  them  as  waived  unless 
so  made.  Hibernia  Sav.  &  L.  Soc.  v.  Farn- 
ham,  153  Cal.  578;  126  Am.  St.  Eep.  129; 
96  Pac.  9.  Aid  should  be  given  the  appel- 
late court,  in  its  examination  of  the  record, 
in  order  to  discover  error:  counsel  should 
j^oint  out  wherein  error  is  claimed  to  exist. 
Carley  v.  Vallecita  Mining  Co.,  16  Cal. 
App.  781;  117  Pac.  1037.  Unless  rulings 
complained  of  as  erroneous  are  pointed  out, 
and  the  reasons  why  they  are  so,  with 
reference  to  authorities,  they  will  not  be 
deemed  of  sufficient  importance  to  merit 
notice  in  an  opinion.  National  Bank  v. 
Mulford,  17  Cal.  App.  551;  120  Pae.  446. 

Hearing  in  bank,  absence  of  justice.  A 
purported  order  of  the  supreme  court, 
granting  a  hearing  in  bank,  after  decision 
in  a  district  court  of  appeal,  concurred  in 
by  a  justice  who  was  absent  from  the  state, 
and  by  only  three  justices  present  in  the 
state,  is  void,  and  must  be  vacated.  People 
v.  Euef,  14  Cal.  App.  576;  114  Pac.  48; 
Brown  v.  Northern  California  Power  Co., 
14  Cal.  App.  661;  114  Pac.  74. 

Appeal  from  orders  concerning  amend- 
ments, and  giving  or  denying  relief  from 
judgments.    See  note  ante,  §  473. 

Jurisdiction  of  appeal  from  order  deny- 
ing motion  for  a  new  trial  of  case  tried  on 
agreed  statement  of  facts.  See  note  ante, 
§  657. 


1023 


ORDERS   OUT    OP   COURT — AGGRIEVED   PARTY. 


§§937,933 


When  appeals  may  be  prosecuted  from  satisfied 
Judgments.    See  note  •!.'>  Am.  .St.   Ui-p.  271. 

Eight  of  party  to  review  Judgment  in  his  favor. 
See  note  .'i   Ann.  (us.  .')l(i. 

Eight  of  plaintiff  to  appeal  from  voluntary  judg- 
ment of  nonsuit.     See  unW  !)  Anil.  Cas.  (;;!1. 

Eight  of  party  who  recovers  judgment  for  less 
than  his  demand  to   appeal   after  satisfaction  of 

judgment.     Sec   nod-   K)    .\im.   Cas.    7i». 

Eight  to  accept  favorable  part  of  a  decree, 
judgment,  or  order  and  appeal  from  the  rest.  See 
29  L.  K.  A.    (N.  S.)    1. 


CODE  COMMISSIONEES'  NOTE.  Th-  rem- 
edy hy  app"  111  is  txclusivfr.  lluiKlit  v.  (Jay,  8 
t'al.  297;  OH  Am.  I>er.  ;i23;  see  uls.i  Miliken  v. 
Iluber,  21  Cal.  1C9;  Nowland  v.  VuukIui.  9  C'lil. 
.'>2 ;  Snrramciito  etc.  K.  U.  Co.  v.  HurUn,  24 
Cal.  :i:u>;  Middlcton  v.  Gould,  .")  Cal.  190.  Tho 
right  of  appeal  exists  from  a  judgment  by  de- 
fault. llalliK-k  V.  .laudin,  34  Cal.  Iti7;  McGlynn 
V.  Hrodie,  31  Cal.  3H2.  A  jud(;mi-nt,  from 
which  an  appeal  iH  pi'ndinc,  is  a  final  one,  within 
the  meanint;  of  §21  of  the  Feiloral  Haiikruptey 
Act.     Miiritt    V.    Glidden,    39    Cal.    5o9 ;    2    Am. 

];.  p.  -179. 


§  937.  Orders  made  out  of  court,  without  notice,  may  be  reviewed  by 
the  judge.  An  order  made  out  of  court,  without  notice  to  the  adverse 
party,  may  be  vacated  or  modified,  without  notice,  by  the  judp:e  who  made 
it;  or  may  be  vacated  or  modified  on  notice,  in  the  manner  in  which  other 
motions  are  made. 


Orders,  generally.    Post,  §§  1003  et  seq. 

Legislation  8  937.  1.  Enacted  March  11,  1873, 
in  the  exact   lanKuage  of  Practice  Act,    5   '■'•\i-i. 

2.  Amendment  by  Stats.  1901.  p.  171.  chan- 
ging the  number  to  §  935;  unconstitutional.  See 
note  ante,  §  5. 

Construction  of  section.  This  section 
manifestly  applies  only  to  sucli  orders  as 
a  court  or  judge  has  power  or  jurisdiotion 
to  make  without  notice.  Boca  etc.  E.  R. 
Co.  V.  Superior  Court,  150  Cal.  147;  88 
Pac.  715. 

Orders  in  probate.  An  allowance,  by  a 
judge,  of  a  claim  against  the  estate  of  a 
deceased  person,  made  on  an  ex  parte  ap- 
plication, may  subsequently  be  set  aside 
by  him  without  notice  to  the  claimant. 
Estate  of  Sullenberger,  72  Cal.  549;  14  Pac. 
513.  A  decree  discharging  an  adminis- 
trator, made  inadvertently  and  ex  parte, 
may  be  set  aside  by  the  court.  Wiggin  v. 
Superior  Court,  68  Cal.  398;  9  Pac.  646. 

Order  granting  leave  to  file  cross- com- 
plaint. An  order  granting  leave  to  file  a 
cross-complaint,  made  uiDon  an  ex  parte 
application,  without  notice  to  the  plaintiff, 
by  the  judge,  and  not  by  the  court,  may 
be  set  aside  without  notice.  Alpers  v.  Bliss, 
145  Cal.  565;  79  Pac.  171;  and  see  Coburn 
V.  Pacific  Lumber  etc.  Co.,  46  Cal.  31. 

Injunction  vacated  or  modified  how.  It 
is  competent  for  the  judge  to  vacate  or 
modify  an  injunction  order  without  notice, 
but  it  is  not  the  better  practice,  and  should 
never  be  done,  except  when,  from  tho 
urgency    of    the    case,    it    is    necessary    to 

§  938.  Party  aggrieved  may  appeal.  Names  of  parties.  Any  party 
agi^rieved  may  appeal  in  the  cases  prescribed  in  this  title.  The  party  appeal- 
ing is  known  as  the  appellant,  and  the  adverse  party  as  the  respondent. 


guard  against  serious  loss,  and  except 
where  the  injunction  has  been  improvi- 
dcntly  granted  upon  a  complaint  dis- 
closing no  ground  whatever  for  equitable 
relief.^  Borland  v.  Thornton,  12  Cal.  440, 
An  injunction,  granted  ex  parte,  is  prop- 
erly modified,  without  notice  to  the 
plaintiff,  on  application  of  the  defendant. 
Fremont  v.  Merced  Mining  Co.,  9  Cal.  18. 
This  section  does  not  apply  where  an  in- 
junction was  granted  ex  parte,  and  the 
application  to  dissolve  the  injunction  was 
based  upon  aflSdavits;  notice,  in  such  case, 
is  required  to  be  given,  under  §  532,  ante: 
it  is  only  when  the  application  to  dissolve 
the  injunction  is  based  on  the  showing 
made  when  it  was  granted  that  this  section 
applies.  Hefflon  v.  Bowers,  72  Cal.  270;  13 
Pac.  690.  This  section  is  not  affected  by 
the  provision  of  §  532,  ante,  that  if  an  in- 
junction is  granted  without  notice,  the 
defendant  can  apply  to  the  judge  who 
granted  the  injunction,  to  dissolve  or 
modify  it:  the  latter  action  is  in  addition 
to  the  provisions  of  this  section.  Borland 
v.  Thornton,  12  Cal.  440. 

Appeal.  This  liection  does  not  affect 
provisions  allowing  an  appeal  from  an 
order  granting  an  injunction:  such  right 
is  a  further  remedy  to  that  provided  by 
this  section.  Sullivan  v.  Triunfo  Gold  etc. 
Mining  Co.,  33  Cal.  385. 

CODE  COMMISSIONEES'  NOTE.  See  sub- 
division 2  of  note  to  §  532  of  this  code. 


Death  of  party,  effect  of.    Ante,  §  385. 

Legislation  S  938.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  335),  substituting  "is" 
for  ••shall  lie." 

2.  Amendment  by  Stats.  1901,  p.  171,  chan- 
ginfj  the  number  to  §  936;  unconstitutional.  See 
note  ante,  §  5. 

Right  of  aggrieved  party  to  appeal.  A 
party  aggrieved  may  appeal  (Kstate  of 
Benner,  155  Cal.  153;  99  Pac.  715;  Winsor 
Pottery  Works  v.  Superior  Court,  13   Cal. 


App.  360;  109  Pac.  843);  but  a  party  not 
aggrieved  has  no  standing  as  an  appellant. 
United  Railroads  v.  Colgan,  153  Cal.  53; 
94  Pac.  245;  People  v.  Bank  of  San  Luis 
Obispo,  152  Cal.  261;  92  i'ac.  481;  Estate 
of  Piper,  147  Cal.  606;  82  Pac.  246;  Delger 
V.  Jacobs,  19  Cal.  App.  197;  125  Pac.  258; 
Flannigan  v.  Towle.  8  Cal.  App.  229;  96 
Pac.  5(17.  Where  the  plaintiffs  appeal,  but 
the  defendants  do  not,  the  latter  are  in  no 


§938 


APPEALS   IN    GENERAL. 


1024 


position  to  attack  the  findings  and  con- 
clusions of  law.  Garibaldi  v.  Grille,  17 
Cal.  App.  540;  120  Pac.  425.  Where  a 
corporation  has  appealed,  and  is  after- 
wards merged  into  another  corporation, 
but  both  appear  as  appellants,  an  objec- 
tion that  the  latter  has  no  standing  in  the 
matter  is  immaterial,  where  all  of  its  rights 
are  fully  protected  by  the  appeal  of  the 
corporation  first  named.  Isom  v.  Rex  Crude 
Oil  Co.,  147  Cal.  663;  82  Pac.  319. 

Aggrieved  party,  who  is.  Any  person 
having  an  interest,  recognized  by  law,  in 
the  subject-matter  of  the  judgment,  which 
interest  is  injuriously  affected  by  the  judg- 
ment, is  a  party  aggrieved,  and  entitled 
to  be  heard  upon  appeal.  Estate  of  Colton, 
164  Cal.  1;  127  Pac.  643.  The  right  of 
appeal  is  remedial  in  its  character,  and  in 
doubtful  cases  the  right  should  always  be 
granted;  and  an  appeal  will  be  sustained 
where  there  is  a  reservation  in  the  judg- 
ment, by  which  the  appellant  is  necessarily 
aggrieved,  and  which,  in  effect,  renders 
the  judgment  in  his  favor  a  nullity.  Quint 
V.  McMullen,  103  Cal.  381;  37  Pac.  .381. 
As  to  a  judgment  dismissing  an  action, 
which  provides  that  such  dismissal  is  not 
a  bar  to  another  action,  the  defendant 
therein  is  an  aggrieved  party.  Nevills  v. 
Shortridge,  129  Cal.  575;  62  Pac.  120.  The 
sureties  on  the  replevin  bond  are  parties 
aggrieved  by  a  judgment  rendered  against 
their  principal,  since  they  are  concluded 
thereby.  Coburn  v.  Smart,  53  Cal.  742.  A 
party  not  having  a  right  to  bring  the  suit, 
and  not  interested  in  the  controversy,  is 
not  a  party  aggrieved  by  the  judgment. 
Williams  v.  Savings  and  Loan  Society,  133 
Cal.  360;  65  Pac.  822.  A  defendant,  against 
whom  no  judgment  is  rendered,  is  not  a 
party  aggrieved  by  an  order  granting  a 
new  trial  as  to  a  co-defendant.  Rankin 
V.  Central  Pacific  R.  R.  Co.,-  73  Cal.  96; 
15  Pac.  57.  An  appeal  taken  by  a  de- 
fendant whose  name  is  omitted  from  the 
judgment  as  entered  is  a  nullity:  such  de- 
fendant is  not  a  party  aggrieved  by  a  judg- 
ment against  a  co-defendant.  Spencer  v. 
Troutt,  133  Cal.  605;  65  Pac.  1083.  Where 
a  pretermitted  finding  must  necessarily  be 
adverse  to  appellants,  they  are  not  ag- 
grieved by  the  omission.  Pinheiro  v.  Bet- 
tencourt,  17  Cal.  App.  Ill;  118  Pac.  941. 
The  question  as  to  who  are  adversely  af- 
fected is  to  be  considered  in  connection 
with  the  merits  of  the  case,  and  not  on  a 
motion  to  dismiss  the  appeal.  Estate  of 
Sutro,  152  Cal.  249;  92  Pac.  486;  1027. 

Appellant  must  be  a  party  of  record. 
None  but  parties  to  the  record  can  appeal. 
Elliott  V.  Superior  Court,  144  Cal.  501; 
103  Am.  St.  Rep.  102;  77  Pac.  1109.  A 
person  shown  by  the  record  to  be  a  party 
aggrieved  may  appeal,  although  he  has 
not  previously  appeared  in  the  case.  Es- 
tate of  Meade.  5  Cal.  Unrep.  678;  49  Pac. 
5.     One  not  a  party  to  the  record  cannot, 


as  a  rule,  appeal  in  his  own  name;  one  not 
a  party  to  the  action  or  proceeding  may 
sometimes  appeal,  but  his  interest  must  be 
made  to  appear  in  the  record  in  some  way, 
and  he  must  be  made  a  party  to  th'3  ruling 
appealed  from.  Estate  of  Crooks,  125  Cal. 
459;  58  Pac.  89.  To  entitle  a  person  to 
an  appeal  under  this  section,  he  must  have 
been  a  party  to  the  action  or  proceeding  in 
the  court  below;  he  need  not  have  been  an 
original  party  when  the  action  was  first 
instituted,  but  he  must  have  made  himself 
a  party  afterwards  by  some  appropriate 
action,  and  the  record  must  show  that  he 
was  such  party.  Estate  of  McDermott,  127 
Cal.  450;  59  Pac.  783;  and  see  Estate  of 
Ryer,  110  Cal.  556;  42  Pac.  1082. 

Stranger  to  record.  An  appeal  lies  from 
an  order  denying  the  motion  of  one  not  a 
party  to  the  record,  to  vacate  or  modify 
an  order  for  a  writ  of  possession;  and  he 
may  insist  upon  the  duty  of  the  court  to 
fix  the  amount  of  the  undertaking  neces- 
sary to  stay  the  operation  of  the  writ  of 
possession,  and  the  discharge  of  such  duty 
may  be  compelled  by  writ  of  mandate. 
Green  v.  Hebbard,  95  Cal.  39;  30  Pac.  202. 
An  order  for  a  writ  of  assistance,  made 
upon  an  ex  parte  application  against  the 
defendant,  is  not  operative  against  any 
other  person  than  the  defendant;  and  ap- 
pellants, who  were  not  parties  to  the  order, 
are  not  parties  aggrieved,  so  as  to  be  en- 
titled to  appeal.  Miller  v.  Bate,  56  Cal.  135. 
Strangers  to  an  action  do  not  become  par- 
ties of  record  thereto  by  being  parties  to 
a  contract,  though  it  is  embodied  in  an 
order  of  the  court,  nor  do  they  become 
parties  to  the  action  by  intervention  in  a 
special  proceeding  during  the  time  a  per- 
son was  acting  as  receiver,  so  as  to  entitle 
them  to  appeal  from  the  judgment  in  such 
action.  Elliott  v.  Superior  Court,  144  Cal. 
501;  103  Am.  St.  Rep.  102;  77  Pac.  1109. 

Interveners.  The  interveners  in  an  ac- 
tion, where  judgment  has  been  rendered 
against  the  defendant,  are  entitled  to  ap- 
peal from  such  judgment,  though  the  de- 
fendant did  not  appeal,  since  the  court,  by 
granting  leave  to  intervene,  determined 
that  they  had  an  interest  in  the  matter  in 
litigation.  People  v.  Perris  Irrigation  Dist., 
132  Cal.  289;  64  Pac.  399.  One  who  is  de- 
nied the  right  to  intervene  has  an  imme- 
diate right  of  appeal.  Dollenmayer  v. 
Pryor,  150  Cal.  1;  87  Pac.  616.  A  pro- 
ceeding in  the  nature  of  an  intervention  is 
substantially  an  independent  action,  from 
the  judgment  in  which  any  party  ag- 
grieved mav  appeal.  De  Forrest  v.  Coffey, 
154  Cal.  444"';  98  Pac.  27. 

Sureties.  A  surety,  merely  as  such,  has 
no  right  of  appeal  from  a  judgment  against 
his  principal.  Estate  of  McDermott,  127 
Cal.  450;  59  Pac.  783.  The  sureties  on  a 
replevin  bond,  whose  application  to  inter- 
vene in  an  action  of  replevin  has  been 
refused,  and  who  have  taken  exception  to, 


1025 


TRUSTEES — FORECLOSURE — RECEIVERSHIP — INSOLVENCY. 


§938 


siuh  refusal,  are  parties  to  the  reconl  in  a 
technical  sense,  so  as  to  entitle  them  to 
prosecute  an  apjieal  from  the  judgment 
against  their  principal.  Coburn  v.  Smart, 
53  Cal.  742;  and  see  People  v.  Grant,  45 
Cal.  97.  A  petition  in  intervention  hy  a 
surety,  merely  for  the  purpose  of  appeal 
from  the  order,  and  an  allowance  thereof 
by  the  court,  does  not  render  such  surety 
a  party  to  the  action,  so  as  to  entitle  him 
to  apjieal  from  the  judgment  against  his 
princijial.  Estate  of  McDermott,  127  Cal. 
450;  59  Pac.  7S:i. 

Trustees.  Trustees  who  claim  funds  in 
the  hands  of  an  executor,  adversely  to  the 
estate,  who  have  not  presented  any  claim 
against  the  estate,  are  not  parties  ag- 
grieved by  a  decree  distributing  the  funds 
to  the  heir.  Estate  of  Burdick,  112  Cal. 
387;  44  Pac.  734.  Trustees  under  a  will 
who  have  sued  to  obtain  for  their  direc- 
tion a  construction  of  certain  clauses  of 
the  will,  are  not  parties  aggrieved  by  an 
order  of  the  court  allowing  the  attorney 
and  guardian  ad  litem  for  the  minor  heirs 
a  fee  for  their  services,  to  be  paid  by  the 
trustees  out  of  any  funds  in  their  hands 
belonging  to  the  estate.  Goldtree  v. 
Thompson,  83  Cal.  420;  23  Pac.  3S3;  and 
see  Adams  v.  Woods,  8  Cal.  306;  Bates  v. 
Eyberg,  40  Cal.  465;  Estate  of  Wright, 
49  Cal.  550;  Eosenberg  v.  Frank,  58  Cal. 
387. 

Appeal  does  not  lie  from  satisfied  judg- 
ment. A  board  of  supervisors,  which 
levied  taxes  in  pursuance  of  a  judgment, 
cannot  be  said  to  be  aggrieved,  so  as  to  be 
entitled  thereafter  to  appeal  from  such 
judgment,  which  was  satisfied  and  its  force 
exhausted.  San  Diego  School  District  v. 
Board  of  Supervisors,  97  Cal.  438;  32  Pac. 
517. 

Garnishment,  judgment  debtor.  Where 
a  fund  claimed  to  be  due  to  the  judgment 
debtor  has  been  garnished,  but,  before 
judgment,  is  assigned  to  another  creditor, 
and  the  court  improperly  orders  the  gar- 
nishee to  pay  the  fund  into  court,  the  as- 
signee is  the  party  adversely  interested, 
and  an  appeal  by  the  judgment  debtor  can- 
not be  sustained,  as  he  is  not  a  party 
aggrieved.  Schino  v.  Cinquini,  7  Cal.  App. 
244;  94  Pac.  S3. 

Foreclosure  suit,  lien  claimant  in.  Where 
the  defendant  in  an  action  to  foreclose  a 
mortgage,  who  claimed  a  judgment  lien 
on  the  ]iremises,  fails  to  appear  at  the  trial, 
and  offers  no  proof,  a  finding  that  all  the 
allegations  of  the  answer  are  untrue  shows 
that  he  has  no  interest  in  the  action,  and 
hence  he  is  not  an  aggrieved  party  entitled 
to  appeal.  Foster  v.  Bowles,  138  Cal.  449; 
71  Pac.  495. 

Receivership,  person  interested  in.  Any 
person  interested  in  a  fund  in  the  hands 
of  a  receiver  may  appeal  from  an  order  fix- 
ing the  compensation  of  the  receiver,  and 
taxing  it  as  costs  in  the  action,  and  direct- 
1  Fair. — 65 


ing  him  to  apply  toward  its  payment  the 
balance  of  the  fund  remaining  in  his  hands. 
Grant  v.  Los  Angeles  etc.  Ry.  Co.,  116  Cal. 
71;  47  Pac.  872.  A  i)erson  cannot  become 
a  party  to  the  action,  merely  by  consent- 
ing to  an  order  settling  the  account  of  the 
receiver  therein;  nor  where  his  assent  to 
agreements  in  the  action  was  not  given  for 
the  purpose  of  ])laciiig  himself  and  his  in- 
terest in  the  property  in  controversy  within 
the  jurisdiction  of  the  court,  but  merely 
to  make  the  contract  between  the  parties 
effective  and  binding  only  so  far  as  it 
affected  his  interest  in  the  property, 
Elliott  V.  Superior  Court,  144  Cal.  501;  103 
Am.  St.  Rep.  102;  77  Pac.  1109.  One  who 
is  a  defendant  in  a  suit,  and  is  in  posses- 
sion of  real  estate  sought  to  be  recovered 
through  the  medium  of  a  receiver,  has  a 
right  to  appeal  from  the  order  appointing 
the  receiver.  Winsor  Pottery  Works  v. 
Superior  Court,  13  Cal.  App.  360;  109  Pac. 
843. 

Insolvency,  creditors  in.  Creditors  ag- 
grieved by  a  judgment  in  insolvency  pro- 
ceedings may  appeal.  Kohlman  v.  Wright, 
6  Cal.  230.  A  creditor  of  an  insolvent  es- 
tate of  a  deceased  person  is  a  party  ag- 
grieved by  an  order  of  family  allowance 
erroneously  made,  and  may  appeal  there- 
from. Estate  of  Fretwell,  152  Cal.  573;  93 
Pac.  283. 

Judicial  sales,  purchasers  at.  The  pur- 
chaser of  land  sold  by  an  administratrix, 
though  not  an  actual  party  to  the  pro- 
ceedings in  the  court  below,  is  a  party  ag- 
grieved, and  is  entitled  to  appeal  from  an 
order  directing  the  resale  of  the  property. 
Estate  of  Poland,  55  Cal.  310.  The  pur- 
chaser of  property  of  an  estate,  at  the  ex- 
ecutor's sale  thereof,  has  a  right  to  file 
objections  to  a  confirmation  of  the  sale  by 
the  probate  court,  and  is  a  party  aggrieved 
by  an  order  of  the  court  confirming  the 
sale,  and  is  entitled  to  appeal  therefrom. 
Estate  of  Pearsons,  98  Cal.  603;  33  Pac. 
451.  The  purchaser  at  a  sale  under  an 
interlocutory  decree  of  partition  is  a  party 
to  the  confirmation  of  the  sale,  and  has 
the  right  of  appeal  from  that  part  of  the 
decree  as  to  which  he  is  a  party  agf^rieved. 
Hammond  v.  Cailleaud,  111  Cal.  206;  52 
Am.  St.  Rep.  167;  43  Pac.  607;  Dunn  v. 
Dunn,  137  Cal.  51;  69  Pac.  847.  The  pur- 
chaser of  property  at  a  judicial  sale  is  en- 
titled to  appeal  from  an  order  refusing 
confirmation  of  the  sale  and  refusing  to 
hear  evidence  thereon.  Estate  of  Leonis, 
138  Cal.  194;  71  Pac.  171. 

Suits  to  quiet  title,  claimants  in.  Where 
appellants  admitted,  at  the  trial,  in  a  suit 
to  quiet  title,  that  their  title  was  involved 
in  only  one  of  several  tax  deeds  offered 
in  evidence,  they  are  not  aggrieved  par- 
ties, in  so  far  as  the  judgment  relates  to 
the  other  tracts.  Flannigau  v.  Towle,  8 
Cal.  App.  229;  96  Pac  507. 


938 


APPEALS   IN    GENERAL. 


1026 


Estates  of  decedents,  claimants  to.  The 
claimants  to  an  estate,  who  have  not  con- 
troverted the  finding  that  they  were  not 
kin  to  the  deceased,  are  not  parties  ag- 
grieved in  a  ruling  respecting  the  rights 
of  a  person  to  whom  the  estate  has  been 
granted,  or  those  of  any  other  claimants. 
BIythe  v.  Ayres,  102  Cal.  254;  36  Pac.  522. 
Parties  whose  right  to  distribution  of  the 
estate  of  a  decedent  depends  upon  the 
character  of  the  property,  as  community 
or  otherwise,  not  having  attached  the  suffi- 
ciency of  the  evidence  to  sustain  the  find- 
ing that  the  property  was  the  separate 
property  of  the  deceased,  are  not  parties 
aggrieved,  so  as  to  be  entitled  to  appeal, 
making  merely  the  point  that  the  court 
was  without  jurisdiction  to  make  the  de- 
cree distributing  the  estate  to  the  state. 
Estate  of  Piper,  147  Cal.  606;  82  Pac._246. 
After  the  claim  of  a  woman,  as  the  widow 
of  a  deceased  person,  has  been  finally  ad- 
judicated adversely  to  her  on  appeal,  in 
a  proceeding  to  determine  the  heirship  and 
right  of  succession  in  the  estate  of  the  de- 
ceased, she  thereupon  ceases  to  be  a  party 
interested  in  the  estate,  and  cannot  after- 
wards maintain  an  appeal  from  the  decree 
distributing  the  estate.  Estate  of  BIythe, 
108  Cal.  124;  41  Pac.  33.  The  mortgagee 
of  a  deceased  devisee,  who  is  not  a  party 
to  the  decree  of  distribution,  is  not  en- 
titled to  appeal  therefrom.  Estate  of 
Crooks,  125  Cal.  459;  58  Pac.  89.  _  The 
contestants  of  a  will,  who  are  not  heirs  at 
law  of  the  testator,  nor  related  to  him, 
are  not  parties  aggrieved,  entitled  to  ap- 
peal from  an  order  denying  a  new  trial. 
Estate  of  Antoldi,  7  Cal.  Unrep,  211;  81 
Pac.  278. 

Executors  and  administrators.  The  devi- 
sees under  the  will  as  well  as  the  ex- 
ecutors, are  parties  aggrieved  by  an  order 
setting  apart  from  the  property  of  the  de- 
ceased a  homestead  for  the  lase  of  the  sur- 
viving wife  for  and  during  the  period  of 
administration  and  until  the  final  distribu- 
tion of  the  estate.  Estate  of  Levy,  141  Cal. 
646;  99  Am.  St.  Eep.  92;  75  Pac.  301.  The 
executrix  of  a  deceased  administrator,  to 
whom  the  succeeding  administrator  had 
been  directed  to  pay  a  certain  sum  as 
counsel  fees  for  the  services  of  an  at- 
torney rendered  to  him  as  administrator, 
is  not  a  party  aggrieved  by  an  order  di- 
recting the  pavmont  of  such  sum,  without 
interest.  Estate  of  BIythe,  103  Cal.  350; 
37  Pac.  392.  The  executors  of  a  deceased 
person  are  parties  aggrieved  by  an  order 
of  the  probate  court,  requiring  them,  in 
pursuance  of  the  terms  of  the  will,  to  re- 
deem certain  lands  from  a  foreclosure  sale, 
and,  as  such,  are  entitled  to  appeal  from 
the  order.  Estate  of  Heydenfeldt,  117  Cal. 
551;  49  Pac.  713.  An  executor  is  not  an 
aggrieved  party,  and  consequently  cannot 
appeal  from  an  order  distributing  the  es- 
tate to  the  persons  found  entitled  thereto, 


if  jurisdiction  of  the  proceedings  for  dis- 
tribution has  been  properly  acquired  by 
the  superior  court  before  making  the  order. 
Estate  of  Williams,  122  Cal.  76;  54  Pac. 
386.  An  executrix  is  a  party  aggrieved  by 
an  order  for  partial  distribution  to  lega- 
tees under  the  will,  where  she  presents  for 
review  an  issue  of  law  as  to  the  sufficiency 
of  the  petition  to  show  that  there  were 
sufficient  assets  to  pay  legacies  without 
loss  to  the  creditors.  Estate  of  Murphy, 
145  Cal.  464;  78  Pac.  960.  Executors  may 
appeal  from  any  order  that  is  embarrassing 
to  the  due  administration  of  the  estate. 
Estate  of  Colton,  164  Cal.  1;  127  Pac.  643. 
Where  an  estate  is  insolvent,  and  an  order 
directing  the  payment  of  a  preferred  claim 
is  made  before  the  amount  of  the  dis- 
tributable estate  is  ascertained  and  the  ac- 
counts of  the  administrator  settled,  the 
administrator  is  a  party  aggrieved  by  the 
premature  order,  and  has  a  right  of  appeal 
therefrom.    Estate  of  Smith,  117  Cal.  505; 

49  Pac.  456.  A  special  administrator  is  a 
party  aggrieved  by  an  order  settling  his 
account,  and  directing  him  to  pay  a  bal- 
ance in  his  hands  to  another  special  ad- 
ministrator. Estate  of  Heaton,  139  Cal. 
237;  73  Pac.  186.  Where  an  administrator 
files  a  petition  to  sell  two  parcels  of  land, 
the  court's  denial  of  the  petition  as  to  one 
parcel  does  not  make  him  an  aggrieved 
party,  and  he  is  not  entitled  to  appeal 
therefrom.  Estate  of  Steward,  1  Cal.  App. 
57;  81  Pac.  728.  A  public  administrator,, 
making  or  having  no  claim  upon  an  estate 
beyond  his  commissions,  and  not  filing  the 
petition  for  distribution  nor  taking  part 
at  the  hearing,  is  not  an  aggrieved  party 
having  the  right  to  appeal.  Estate  of 
Jones,  118  Cal.  499;  62  Am.  St.  Rep.  251; 

50  Pac.  766;  and  see  Bates  v.  Rvberg,  40 
Cal.  463;  Estate  of  Wright,  49  Cal.  550; 
Estate  of  Marrey,  65  Cal.  287;  3  Pac.  896. 

Person  claiming  right  to  administer. 
One  who  claims  a  prior  right  to  administer 
upon  the  estate  of  a  deceased  person  is, 
upon  the  denial  of  such  right,  a  party  ag- 
grieved, and  entitled  to  appeal  from  the 
order  granting  letters  of  administration  to 
another.  Estate  of  Danike,  133  Cal.  433; 
65  Pac.  888. 

Joint  appeals.  A  plaintiff  and  a  de- 
fendant, who  are  defendants  in  a  cross- 
complaint  filed  by  another  defendant,  may 
unite  in  an  appeal  from  the  judgment 
against  them  on  the  cross-complaint. 
Downing  v.  Rademacher,  136  Cal.  673;  69 
Pac.  415.  Joint  appeals  may  be  taken  by 
parties  who  are  aggrieved,  and  they  may 
be  supported  by  one  undertaking.  Estate 
of  Sutro,  152  Cal.  249;  92  Pac.  486;  92 
Pac.  1027. 

Motion  to  dismiss  appeal,  inquiry  as  to 
merits.  A  motion  to  dismiss  an  appeal,  on 
the  ground  that  the  appellant  is  not  a 
party  aggrieved  by  the  order  and  decree 
appealed  from,  which  involves  an  inquiry 


1027 


TIME  WITHIN  wnicn  appeals  may  de  taken. 


§930 


as  to  the  merits,  will  be  denied.  Estate  of 
Williams,  4  Cal.  Unrep.  511;  36  Fae.  6. 
Whether  the  ju(lg;mcnt  is  i)re,ju(licial  to  the 
rights  of  the  aiipolliuit,  or  wliether  it  is 
competent  for  the  court  to  determine  the 
effect  of  its  juili;mont  in  any  subsequent 
proceeding  between  the  parties,  are  ques- 
tions involving  the  merits,  and  cannot  be 
determined  on  a  motion  to  dismiss  the  ap- 
peal on  the  ground  that  the  defendant 
was  not  an  aggrieved  party,  because  judg- 
ment was  in  his  favor.  Xevills  v.  Short- 
ridge,  129  Cal.  575;  G2  Pac.  120. 

"Any  party,"  defined.  The  term,  "any 
party,"  in  this  section,  means  any  person 
who  is  a  party  to  the  action.  Seuter  v. 
Bernal,  38  Cal.  637. 

Who  may  appeal  as  an  interested  or  injured 
party.    See  note  ll'J  Am.  St.  liep.  740. 

CODE  COMMISSIONERS'  NOTE.  1.  Who 
may  appeal.  One  not  a  party  to  a  record  may 
appeal,  if  aggrieved  by  the  judgment.  Adams 
V.  Woods,  8  Cal.  306.  Any  heir,  devisee,  or 
legatee  of  an  estate,  party  to  proceedings  for 
distribution,  may  appeal  from  the  final  order  of 
distribution;  but  the  e.xecutor  of  the  estate  can- 
not, upon  the  ground  that  the  estate  was  im- 
properly distributed.  Bates  v.  Ryberg,  40  Cal. 
463.  The  party  aggrieved,  within  the  meaning 
of  §  335  of  the  Practice  Act,  is  the  one  against 
whom  an  appealable  order  or  judgment  has  been 
entered;  and  when  an  order  is  made  directing 
an  injunction  upon  condition  that  an  undertaking 
be    executed    and    filod,    the    party    against    whom 


the  order  is  made  may  appeal  at  once.  Ely  v. 
Frisbie,  17  Cul.  250.  A  j-'arly  made  defendant 
in  an  action,  if  a  decree  is  taken  against  him, 
may  appeal,  and  th<-  appeal  cannot  bu  distnissed 
uitun  the  ground  that  he  is  not  a  party  in 
interest.  RicketKon  v.  Torres,  23  Cal.  030.  I. 
filed  his  complaint  against  T.,  alleging  a  part- 
norshi])  between  them,  and  praying  for  an  ac- 
count of  the  partnership  proiierty.     Subsequently 

I.  filed  a  petition  in  the  same  court,  setting 
forth  the  complaint,  and  also  that  L.  T.  U.  and 
n.  H.  had  obtained  judgment  against  T.,  tho 
defendant,  and  that  execution  had  issued  on  the 
judgment,  and  was  levied  on  tho  |)artnership 
property  of  the  plaintiff  and  defendant,  and  that 
the  sheriff  was  about  to  sell  the  property.  Tho 
petition  prayed  that  L.  T.  B.  and  II.  B.  might 
be  made  parties,  and  that  an  injunction  might 
issue  against  L.  T.  B.  and  H.  B.  and  the  sheriff. 
It  was  held  on  appeal  that  it  <lid  not  lie  in 
the  mouth  of  I.  and  T.  to  say  that  L.  T.  B.   and 

II.  B.  were  not  parties  to  the  suit,  and  had  no 
right  of  appeal.  Jones  v.  Thompson,  12  Cal.  191. 
That  appellant  has  resided  out  of  the  state  for 
several  years,  is  not  ground  for  denying  his  right 
to  appeal.    Kicketson  v.  Torres,  23  Cal.  636. 

2.  Who  may  not  appeal.  See  subdivision  1  of 
this  note.  A  party  not  affected  by  a  judgment 
cannot  take  an  appeal.  Hibernia  Sav.  &  L.  Soc. 
V.  Ordway,  38  Cal.  679.  In  an  action  against 
the  husba.nd  alone,  involving  the  homestead  right, 
the  judgment  could  not  affect  the  question  of 
homestead,  and  the  husband  has  no  right  of 
appeal.  Kracmer  v.  Revalk,  8  Cal.  74.  A  judg- 
ment in  a  suit  against  a  corporation  contained 
a  direction  for  the  sale  of  the  interest  of  indi- 
viduals not  parties  to  the  action;  from  it  the 
corporation  alone  appealed.  Held,  that  the  cor- 
poration could  not  take  advantage  of  the  error 
in  the  judgment  in  embracing  individuals.  Den- 
nis V.  Table  Mountain  Water  Co.,  10  Cal.  369. 

§  939.  Within  what  time  appeal  may  be  taken.  An  appeal  may  be  taken 
from  any  judgment  or  order  of  a  superior  court  from  which  an  appeal  lies 
under  any  provision  of  this  code,  or  of  any  other  code,  or  under  any  other 
statute,  within  sixty  days  from  the  entry  of  said  judgment  or  order.  No 
appeal,  however,  shall  be  dismissed  on  the  ground  that  it  was  taken  after 
the  rendition  of  such  judgment  or  order  and  before  formal  entry.  If  pro- 
ceedings on  motion  for  a  new  trial  are  pending,  the  time  for  appeal  from 
the  judgment  shall  not  expire  until  thirty  days  after  entry  in  the  trial  court 
of  the  order  determining  such  motion  for  a  new  trial,  or  other  termination 
in  the  trial  court  of  the  proceedings  upon  such  motion. 


Appeal. 

1.  Effect  of.      See  post.  §  946. 

2.  From  judgment  on  controversy  submitted 
■without  action.      Post,  §  1140. 

3.  In  probate,  to  be  taken  within  sixty  days. 
See  post.  S  1715. 

4.  Record  on.    See  post,  §  951. 

5.  Time   for,   in   suit  to   determine   heirship. 
See  post,  5  l(l(i4. 

6.  To  supreme  court.    Post,  §§  963-966. 

7.  To  superior  court.    Post,  S§  974-980. 
Definition  of  judgment.    Ante,  §  577. 
Exceptions,  need  of .    Ante,  §  646;   post,  §  956. 

Legislation  §  939.  1.  Enacted  March  11,  1872 ; 
based  on  Practice  Act,  §  336,  as  amended  by 
Stats.  18G5-66,  p.  706,  which  read:  "An  appeal 
may  be  taken:  First.  From  a  final  judgment  in  an 
action  or  special  proceeding  commenced  in  the 
court  in  which  the  same  is  rendered,  within  one 
year  after  the  rendition  of  the  judgment.  Second. 
From  a  judgment  rendered  on  an  appeal  from  an 
inferior  court,  within  ninety  days  after  the  iHjndi- 
tion  of  such  judgment.  Third.  P^'om  an  order 
granting  or  refusing  a  new  trial;  from  an  order 


granting  or  dissolving  an  injunction;  from  an 
order  refusing  to  grant  or  dissolve  an  injunction; 
from  an  order  dissolving  or  refusing  to  dissolve 
an  attachment;  from  any  special  order  made  after 
final  judgment,  and  from  an  interlocutory  judg- 
ment in  actions  for  partition  of  real  property, 
within  sixty  days  after  the  order  or  interlocutory 
judgment  is  made  and  entered  in  the  minutes  of 
the  court."  When  §  939  was  enacted  in  1872, 
it  read:  "§939.  .\n  appeal  may  be  taken:  1. 
From  a  final  judgment  in  an  action  or  special  pro- 
ceeding commenced  in  the  court  in  which  the 
same  is  rendered,  within  one  year  after  the  en- 
try of  judgment.  But  an  exception  to  the  de- 
cision or  verdict,  on  the  ground  that  it  is  not 
supported  by  the  evidence,  cannot  be  reviewed 
on  an  appeal  from  the  judgment,  unless  the  ap- 
peal is  taken  tvithin  sixty  days  after  the  rendi- 
tion of  the  judgment;  2.  From  a  judgment  ren- 
dered on  an  appeal  from  an  inferior  court,  within 
ninety  days  after  the  entry  of  such  judgment; 
3.  From  an  order  granting  or  refusing  a  new- 
trial;  from  an  order  granting  or  dissolving  an 
injunction;    from  an  order  refusing   to  grant   or 


§939 


APPEALS    IN    GENERAL, 


1028 


dissolve  on  injunction;  from  an  order  dissolving 
or  refusing:  to  dissolve  an  attachment;  from  an 
order  granting  or  refusing  to  grant  a  change  of 
the  place  of  trial;  from  any  special  order  made 
after  final  judgment,  and  from  an  interlocutory 
judgment  in  actions  for  partition  of  real  prop- 
erty, within  sixty  days  after  the  order  or  inter- 
locutory judgment  is  made  and  entered  in  the 
minutes  of  the  court  or  filed  with  the  clerk." 

2.  Amended  by  Code  Amdts.  1880,  p.  61,  (1) 
in  subd.  3,  adding,  (a)  after  "real  property,"  the 
words  in  the  present  subdivision,  beginning  "and 
from  an  order,"  and  ending  "sixty-three  of  this 
code,"  and  (b)  "(60)"  after  "sixty." 

3.  Amended  by  Stats.  1897,  p.  55,  (1)  in 
Eubd.  1,  changing  "one  year"  to  "six  months"; 
(2)  in  subd.  3,  (a)  adding,  after  "dissolve  an 
injunction,"  the  words  "from  an  order  appointing 
a  receiver,"  and  (b)  omitting  "and"  before  "from 
an  interlocutory,"  "in  the  provisions"  after  "men- 
tioned," and  "(60)"  after  "sixty." 

4.  Amended  by  Stats.  1899,  p.  7,  (1)  in 
subd.  3,  (a)  adding,  after  "final  judgment,"  the 
words  "from  an  interlocutory  judgment,  order,  or 
decree  hereafter  made  or  entered  in  any  action 
to  redeem  real  or  personal  property  from  a  mort- 
gage thereof,  or  lien  thereon,  determining  such 
right  to  redeem  and  ordering  an  accounting,"  and 
(b)  changing  before  "interlocutory,"  at  end  of 
section,  the  word  "or"  to  "of"  (sic). 

5.  Amendment  by  Stats.  1901,  p.  172,  being 
a  substitution  of  §  963,  post,  for  this  section, 
•with  amendments,  the  old  §  963  being  repealed; 
unconstitutional.     See  note  ante,  §  5. 

6.  Amended  by  Stats.  1907^  p.  60,  the  sec- 
tion then  reading,  "939.  An  appeal  may  be 
taken:  1.  From  a  final  judgment  in  an  action, 
or  special  proceeding,  commenced  in  the  court  in 
which  the  same  is  rendered,  within  six  months 
after  the  entry  of  judgment.  But  an  exception 
to  the  decision,  or  verdict,  on  the  ground  that 
it  is  not  supported  by  the  evidence,  cannot  be 
reviewed  on  an  appeal  from  the  judgment,  unless 
the  appeal  is  taken  within  sixty  days  after  the 
entry  of  the  judgment;  2.  From  a  judgment  ren- 
dered on  appeal  from  an  inferior  court,  within 
ninety  days  after  the  entry  of  such  judgment; 
3.  From  an  order  granting  or  refusing  a  new 
trial;  from  an  order  granting  or  dissolving  an 
injunction;  from  an  order  refusing  to  grant  or 
dissolve  an  injunction;  from  an  order  appointing 
a  receiver;  from  an  order  dissolving  or  refusing 
to  dissolve  an  attachment;  from  an  order  grant- 
ing or  refusing  to  grant  a  change  of  the  place 
of  trial;  from  any  special  order  made  after  final 
judgment;  from  an  interlocutory  judgment,  or- 
der, or  decree  hereafter  made  or  entered  in  any 
action  for  divorce  or  to  redeem  real  or  per- 
sonal property  from  a  mortgage  thereof,  or  lien 
thereon,  determining  such  right  to  redeem  and 
ordering  an  accounting;  from  an  interlocutory 
judgment  in  actions  for  partition  of  real  prop- 
erty; and  from  an  order  confirming,  changing, 
modifying,  or  setting  aside  the  report,  in  whole 
or  in  part,  of  the  referees  in  actions  for  parti- 
tion of  real  property  in  the  cases  mentioned  in 
Bection  seven  hundred  and  sixty-three  of  this 
code,  within  sixty  days  after  the  order  or  in- 
terlocutory judgment  is  made  and  entered  in 
the  minutes  of  the  court,  or  filed  with  the  clerk." 

7.  -Amended  by  Stats.  1915,  p.  205,  recast- 
ing the  EectioQ.. 

Construction  of  code  sections.  The 
amendment  to  this  section  in  1897,  redu- 
cing the  time  allowed  for  appeal  from  a 
judgment  from  one  year  to  six  months,  is 
to  be  construed  as  not  intended  to  operate 
retrospectively  upon  judgments  entered 
■before  its  passage,  but  as  limited  in  its 
operation  to  judgments  thereafter  entered. 
Pignaz  V.  Burnett,  119  Cal.  157;  51  Pac. 
48;  Melde  v.  Reynolds,  120  Cal.  234;  52 
Pac.  491.  Since  the  amendment  to  this 
section  in  1897,  allowing  an  appeal  from 
an  order  aii])ointing  a  receiver,  and  the 
amendment,    at    the   same    time,    of    §  943, 


post,  providing  for  the  staying  of  an  order 
by  an  undertaking  on  appeal,  there  is  af- 
forded a  remed}^  for  prodigal,  unwise,  and 
unwarranted  appointments  of  receivers; 
therefore  prohibition  will  not  lie  to  arrest 
proceedings  under  an  order  appointing  a 
receiver.  Jacobs  v.  Superior  Court,  133 
Cal.  364;  85  Am.  St.  Eep.  204;  65  Pac. 
826;  and  see  French  Bank  Case,  53  Cal. 
495;  Emeric  v.  Alvarado,  64  Cal.  529;  2 
Pac.  '418.  The  first  subdivision  of  this  sec- 
tion is  applicable  to  judgments  in  election 
contests;  yet  errors  in  the  admission  and 
rejection  of  ballots,  excepted  to  at  the 
trial,  are  not  within  that  subdivision,  and 
may  be  reviewed  upon  an  appeal  from  the 
judgment,  taken  after  the  lapse  of  sixty 
days.  McCarthy  v.  Wilson,  146  Cal.  323; 
82  Pac.  243;  and  see  Packard  v.  Craig,  114 
Cal.  95;  45  Pac.  1033.  The  shortening  of 
the  time  for  appeal  made  by  the  amend- 
ment of  1897,  did  not  affect  the  limitation 
of  one  year  in  which  to  invoke  the  remedy 
given  hy  §  473,  ante,  as  that  is  wholly 
independent  of  the  remedy  by  appeal.  Fox 
V.  Townsend,  2  Cal.  App.  193;  83  Pac.  272. 

Requisites  of  valid  appeal.  Where  the 
appellant  gives  notice  of  appeal  under  this 
section,  he  must  also  comply  with  the 
provisions  of  §  940,  post,  requiring  the  serv- 
ing as  well  as  the  filing  of  his  notice  of  ap- 
peal and  the  giving  of  an  undertaking, 
Theisen  v.  Matthai,  165  Cal.  249;  131  Pac. 
747. 

Concerning  the  new  method  of  appeal. 
See  notes  post,  §§  941a-941c,  953a-953c. 

Final  judgment.  A  final  judgment  is  one 
that  finally  determines  the  rights  of  all  the 
parties  in  relation  to  the  matter  in  contro- 
versy. Nolan  V.  Smith,  137  Cal.  360;  70 
Pac.  166;  and  see  Stockton  etc.  Agricul- 
tural Works  V.  Glens  Falls  Ins.  Co.,  98  Cal. 
557;  33  Pac.  633;  Anglo-Calif ornian  Bank 
V.  Superior  Court,  153  Cal.  753;  96  Pac.  803. 
Under  the  first  subdivision  of  this  section, 
prescribing  the  older  method  of  taking  ap- 
peals, an  appeal  from  a  final  judgment 
must  be  taken,  if  at  all,  within  six  months 
after  the  entry  of  such  juilgment.  Cook  v. 
Suburban  Realty  Co.,  20  Cal.  App.  538;  129 
Pac.  801.  An  order  settling  the  account  of 
a  receiver,  and  directing  the  payment  of 
his  compensation  by  one  of  the  parties, 
although  made  before  there  has  been  a 
final  judgment  in  the  action  in  which  he 
was  appointed,  is  a  final  determination  of 
the  rights  of  the  parties  in  the  matter  then 
before  the  court,  and  an  apjieal  therefrom, 
as  from  a  final  judgment,  may  be  taken 
within  six  months  after  its  entry.  Los 
Angeles  v.  Los  Angeles  City  Water  (Jo.,  134 
Cal.  121;  66  Pac.  198. 

Appeal  from  final  judgment.  See  note 
post,  §  963. 

Review  of  sufficiency  of  evidence  to  sup- 
port finding  or  verdict.  The  word  "de- 
cision," or  the  alternative  word  "verdict," 
as  used  in  this  section,  refers  to  the  writ- 


1029 


REVIEW   OP   EVIDENCE. 


§939 


ten  findinjia  of  facts  and  conclusions  of 
law  required  by  §S  (')'A2,  ("Xi,  ante,  to  the  ex- 
clusion of  tlie  intcrinodiatc  orders  and  de- 
cisions whicdi  may  be  reviewed  upon  a|ii)eal 
from  a  final  judfjment,  ami  as  to  wliiidi  no 
written  findint^s  are  reciuired.  Clifford  v. 
Allman,  S4  C'al.  o2S;  2-1  Pac.  292.  The  rul- 
ing; on  a  motion  for  a  nonsuit  is  a  decision, 
within  the  meanintj  of  this  section;  hence, 
the  sufliciency  of  the  evidence  to  sustain 
the  decision  will  not  be  considered,  unless 
the  Appeal  is  taken  within  sixty  davs. 
Miller  v.  Wade,  87  Cal.  410;  25  Pac.  4S7. 
Before  the  amendment  of  this  section  in 
1907,  chanj^inji;  "rendition"  to  "entry,"  the 
sufficiency  of  the  e\itleiice  to  sustain  the 
decision  could  be  reviewed,  where  the  aji- 
peal  was  taken  within  sixty  days  after  the 
rendition  of  the  judgment.  Pease  v.  Fink, 
3  Cal.  App.  371;  So  Pac.  657.  At  the  pres- 
ent time,  the  sufficiency  of  the  evidence 
cannot  be  reviewed,  where  the  apjieal  was 
taken  more  than  sixty  days  after  the 
"entry"  of  the  judgment.  In  re  College 
Hill  Land  Ass'n',  157  Cal.  590;  108  Pae. 
681;  First  Nat.  Bank  v.  Trognitz,  14  Cal. 
App.  176;  111  Pac.  402;  Cordano  v.  Fer- 
retti,  15  Cal.  App.  670;  115  Pae.  657;  Mor- 
com  V.  Baiersky,  16  Cal.  App.  480;  117  Pac. 
560;  Union  Lumber  Co.  v.  Sunset  Road  Oil 
Co.,  1/  Cal.  App.  460;  120  Pac.  44;  National 
Bank  v.  Mulford,  17  Cal.  App.  551;  120 
Pae.  446;  and  see  also  Clark  v.  Gridley,  49 
Cal.  105.  The  provision  of  this  section, 
that  the  evidence  cannot  be  reviewed  on 
appeal  from  the  judgment  unless  the  ap- 
peal is  taken  within  sixty  days  after  the 
rendition  of  judgment,  does  not  change 
the  time  within  which  the  appeal  must  be 
taken,  but  is  only  a  limitation  upon  the 
matters  that  may  be  considered  upon  the 
appeal.  McHugh  v.  Adkins,  117  Cal.  228; 
49  Pac.  2.  On  an  appeal  from  a  judgment 
confirming  the  report  of  appraisers  setting 
apart  a  homestead  out  of  the  estate  of  a 
decedent,  the  evidence  could  be  reviewed, 
prior  to  1907,  if  the  appeal  was  taken 
within  sixty  davs  after  the  order  was 
made.  Estate  of "  Crowey,  71  Cal.  300;  12 
Pac.  230.  An  appeal  from  an  order  deny- 
ing a  motion  to  vacate  a  judgment,  void 
on  its  face,  must  be  taken  within  sixty 
days.  Beaumont  v.  Midway  Provident  Oil 
Company,  21  Cal.  App.  128;  131  Pac.  106. 
While  the  filing  of  the  undertaking  per- 
fects the  api>eal,  yet  it  is  not  a  part  of 
the  taking  of  the  appeal  in  the  statutory 
sense;  hence,  the  fact  that  it  was  not  given 
within  sixty  days  from  the  rendition  of 
judgment  did  not  prevent  a  consideration 
of  the  evidence.  Perkins  v.  Cooper,  3  Cal. 
Unrep.  279;  24  Pac.  377.  An  order  or  de- 
cision striking  out  a  complaint  being  an 
intermediate  order  or  decision,  the  pro- 
visions of  this  section  do  not  preclude  a 
review  of  the  sufficiency  of  the  evidence  to 
sustain  such  order  or  decision,  on  appeal 
taken  more  than  sixty  days  after  the  ren- 


dition of  the  judgment.  Clifford  v.  Allman, 
84  Cal.  528;  24  Pac.  292.  An  order  settling 
the  account  of  an  administrator  is  not  a 
judgment;  hence,  the  evidence  upon  whicii 
the  order  was  base(l  can  be  reviewed,  al- 
though tlie  apfieal  was  taken  more  than 
sixty  days  after  the  order  was  signed  ami 
filecl  with  the  clerk,  but  less  than  sixty 
days  after  it  was  entered  in  the  minute- 
book  of  the  clerk:  the  provisions  of  this 
section  do  not  ajiply  to  an  appeal  from 
such  an  order.  Estate  of  Levinson,  lOS  Cal. 
450;  41  Pac.  483;  42  I'ac.  479;  Estate  of 
Rose,  80  Cal.  166;  22  Pac.  86,  reversing 
Estate  of  Rose,  3  Cal.  Unrep.  50;  20  Pa<-. 
712.  The  refusal  to  admit  and  to  take 
into  consideration  certain  proper  evidence, 
and  the  taking  into  consideration  of  other 
evidence  which  should  have  been  excludetl, 
can  be  considered  on  appeal  from  the  judg- 
ment, taken  more  than  sixty  days  after 
the  rendition  thereof.  McCarthy  v.  Wilson, 
146  Cal.  323;  82  Pac.  243;  and  see  Packar.l 
V.  Craig,  114  Cal.  95;  45  Pac.  1033.  Upon 
api>eal  from  a  judgment,  taken  more  than 
sixty  days  after  the  rendiUon  thereof,  the 
case  must  be  reviewed  upon  the  judgment 
roll  alone,  without  reference  to  the  ques- 
tion whether  the  evidence  was  sufficient 
to  support  the  findings  and  judgment  or 
not.  Reed  v.  Johnson,  127  Cal.  538;  59 
Pac.  986.  Where  the  judgment  was  not 
entered  in  time  to  allow  an  appeal  there- 
from to  be  taken  within  sixty  days  from 
its  rendition,  the  evidence  could  be  re- 
viewed only  upon  motion  for  a  new  trial. 
Painter  v.  Painter,  113  Cal.  371;  45  Pac. 
689. 

Review  of  evidence  on  bill  of  excep- 
tions. Evidence  contained  in  a  bill  of  ex- 
ce{)tions  coulil  not  be  considered  on  an 
appeal  taken  more  than  sixty  days  after 
the  rendition  of  the  judgment.  Los  Angeles 
Brewing  Co.  v.  Klinge,  7  Cal.  App.  550; 
95  Pac.  44.  The  second  sentence  of  the 
first  subdivision  of  this  section  refers  only 
to  exceptions  to  a  decision  on  an  issue  of 
fact:  it  does  not  apply  to  a  bill  of  ex- 
ceptions to  the  order  of  the  trial  court 
refusing  to  allow  proposed  amendments. 
Campbell-Kawannanakoa  v.  Campbell,  152 
Cal.  201;  92  Pac.  184.  An  exception  to 
the  entry  of  judgment  against  executors,, 
on  the  ground  that  no  claim  had  been  pre- 
sented to  them,  and  that  the  decision  was 
against  law,  in  giving  jmlgment  against 
them  without  ]ii  jof  of  the  presentation  of 
the  claim,  is  not,  in  effect,  an  objection  to 
the  decision  on  the  ground  that  it  was  not 
sustained  by  the  evidence,  and  may  be 
reviewed  on  appeal,  although  not  taken 
within  sixty  days  after  the  rendition  of 
the  judgment.  Falkner  v.  Hendy,  107  Cal. 
49;  40  Pac.  21.  A  statement  on  motion  for 
a  new  trial  may  be  used  for  the  purpose 
of  determining  the  sufficiency  of  the  evi- 
dence, where  the  appeal  was  taken  within 
sixty  days  after  the  rendition  of  the  judg- 


§939 


APPEALS   IN    GENER.VL. 


1030 


ment.  Blood  v.  La  Serena  Land  etc.  Co., 
150  Cal.  764;  89  Pac.  1090.  A  bill  of  ex- 
ceptions may  be  looked  into  to  determine 
the  sufBciency  of  the  evidence  to  sustain 
the  verdict,  on  an  appeal  from  the  judg- 
ment, taken  within  sixty  days  after  its 
rendition,  even  though  there  is  no  motion 
for  a  new  trial.  Perkins  v.  Cooper,  3  Cal. 
Unrep.  279;  24  Pac.  377;  and  see  Balch  v. 
Jones,  61  Gal.  234;  Estate  of  Crowey,  71 
Cal.  300;  12  Pac.  230.  A  bill  of  excep- 
tions, which  contains  no  specifications  of 
the  insufficiency  of  the  evidence  to  justify 
the  findings,  and  shows  no  errors  of  law, 
cannot  be  considered  upon  appeal  from  an 
order  denying  a  new  trial,  nor  upon  an  ap- 
peal from  the  judgment,  taken  more  than 
sixty  davs  after  its  entry.  Sather  Bank- 
ing Co.  V.  Briggs,  138  Cal.  724;  72  Pac. 
3.52.  The  insufficiency  of  the  evidence  to 
sustain  the  findings  may  be  reviewed, 
under  a  proper  bill  of  exceptions,  if  the 
appeal  was  taken  within  sixty  days  after 
the  entry  of  the  judgment.  Eussell  v. 
Banks,  11  Cal.  App.  450;  105  Pac.  261. 
A  judgment  of^dismissal,  without  findings, 
and  without  an  opportunity  to  the  appel- 
lant to  prepare  a  record,  is  not  an  excep- 
tion to  the  decision  or  verdict.  Eickey 
Land  etc.  Co.  v.  Glader,  153  Cal.  179;  94 
Pac.  768. 

Appeal  must  be  taken  within  sixty  days. 
The  sufficiency  of  the  evidence  to  sup- 
port the  decision,  judgment,  or  verdict 
could  not  be  reviewed  prior  to  the  amend- 
ment to  this  section  in  1907,  substitut- 
ing "entry"  for  "rendition,"  where  the 
appeal  was  taken  more  than  sixty  days 
after  the  rendition  of  the  judgment 
(Bettis  V.  Townsend,  61  Cal.  333;  Wevl 
V.  Sonoma  Valley  E.  E.  Co.,  69  Cal.  202; 
10  Pac.  510;  Mogk  v.  Peterson,  75  Cal.  496; 
17  Pac.  446;  McGrath  v.  Hyde,  81  Cal.  38; 
22  Pac.  293;  Turner  v.  Eeynolds,  81  Cal. 
214;  22  Pac.  546;  Miller  v.*  Wade,  87  Cal. 
410;  25  Pac.  487;  Curran  v.  Kennedy,  89 
Cal.  98;  26  Pac.  641;  Forni  v.  Yoel'l,  99 
Cal.  173;   33  Pac.   887;   Nelmes  v.  Wilson, 

4  Cal.  Unrep.  267;  34  Pac.  341;  Steen  v. 
ITendv,  4  Cal.  Unrep.  916;  38  Pac.  718; 
Secord  v.  Quigley,  106  Cal.  149;  39  Pac. 
623;  Brooks  v.  San  Francisco  etc.  Ey.  Co., 
110  Cal.  173;  42  Pac.  570;  Painter  v. 
Painter,  113  Cal.  371;  45  Pac.  689;  Cali- 
fornia Improvement  Co.  v.  Baroteau,  116 
Cal.   136;   47  Pac.   1018;   Ehoads   v.   Gray, 

5  Cal.  Unrep.  664;  48  Pac.  971;  Wood  v. 
Etiwanda  Water  Co.,  122  Cal.  152;  54  Pac. 
726;  McEae  v.  Argonaut  Land  etc.  Co.,  6 
Cal.  Unrep.  145;  54  Pac.  743;  Wise  v. 
Ballou,  129  Cal.  45;  61  Pac.  574;  Coonan 
V.  Loewenthal,  129  Cal.  197;  61  Pac.  940; 
Eyland  v.  Heney,  130  Cal.  426;  62  Pac. 
616;  McDonald  v.  Hayes,  132  Cal.  490;  64 
Pac.  850;  People  v.  Jones,  7  Cal.  Unrep. 
64;  70  Pac.  1063;  Gilbert  v.  Kelly,  138  Cal. 
689;  72  Pac.  344;  Dodge  v.  Carter,  140  Cal. 
663;    74    Pac.    292;    Baum    v.    Eoper,    145 


Cal.  116;  78  Pac.  466;  Hawley  v.  Harring- 
ton, 152  Cal.  188;  92  Pac.  177;  Crandall 
V.  Parks,  152  Cal.  772;  93  Pac.  1018;  An- 
drews V.  Wheeler,  10  Cal.  App.  614;  103 
Pac.  144;  Carver  v.  San  Joaquin  Cigar  Co., 
16  Cal.  App.  761;  118  Pac.  92;  Lavne  v. 
Johnson,  19  Cal.  App.  95;  124  Pac.  860), 
although  the  evidence  and  the  specifica- 
tions were  set  forth  in  the  statement  (Wall 
v.  Mines,  128  Cal.  136;  60  Pac.  682),  nor 
although  the  appeal  was  taken  within 
sixty  days  after  service  of  the  notice  of 
rendition:  notice  of  the  rendition  of  the 
judgment  was  not  required  (Fatjo  v. 
Swasey,  111  Cal.  628;  44  Pac.  225);  nor 
could  such  sufficiency  be  considered  on  an 
appeal  taken  within  sixty  days  after  the 
"entry"  of  the  judgment,  but  not  within 
sixtv  days  after  its  "rendition."  Schurtz 
V.  Eome/,  81  Cal.  244;  22  Pac.  657. 

Orders   respecting   new   trial.     There   is 
an  immediate  right  of  appeal  from  an  order 
denying  a  new  trial,  as  soon  as  it  is  en- 
tered in  the  minutes  of  the  court.   O'Eourke 
V.   Finch,    8    Cal.   App.    263;    96   Pac.    784. 
An   appeal  from  an  order  denying  a  new 
trial  must  be  taken  within  sixty  days  from 
the  time   the   order   is   made   and   entered. 
Walbridge  v.  Cousins,  2  Cal.  App.  302;  83 
Pac.  462;   Prine  v.  Duncan,  7  Cal.  Unrep. 
330;    90   Pac.   713.     To   render   an     appeal 
from  an  order  denying  a  new  trial  valid, 
the  undertaking  on  appeal  must  be  given 
and    the    notice    of   appeal    must    be    filed 
within  sixty  days  after  the  order  is  made. 
Holcomb  v.  Sawyer,  51  Cal.  417.     An  ap- 
peal from  an  order  denying  a  motion  for 
a  new  trial,  not  taken  within   sixty   days 
after  the  order  is  entered   in   the  minutes 
of  the  court,  will  be   dismissed.    Esrey  v. 
Southern   Pacific    Co.,   4    Cal.   Unrep.   402; 
35   Pac.   310;    McDonald   v.   Lee,   132    Cal. 
252;  64  Pac.  250;  and  see  Peck  v.  Courtis, 
31  Cal.  207;  Brown  v.  Green,  65  Cal.  221; 
3    Pac.    811.     An    order    striking    a    state- 
ment on  motion  for  a  new  trial  from  the 
files   is   a   special   order,  made   after  judg- 
ment, and  if  the  appeal  therefrom  is  not 
taken  within  sixty  days  from  its  date,  it 
must  be  dismissed.    Symons  v.  Bunnell,  101 
Cal.  223;  35  Pac.  770!'     An  appeal  from  an 
order  granting  a  new  trial  operates  to  sus- 
pend the  functions  of  the  order,  and  leaves 
the  judgment   subsisting  for   the   purposes 
of  an  appeal  therefrom  pending  the  order; 
and  the  time  between  the   making  of  the 
order  and  the  reversal  thereof  upon  appeal 
cannot  be  excluded  from  the  computation 
of   time  within  which   an   appeal   must   be 
taken  from  the  judgment.   Henry  v.  Mer- 
guire,  111  Cal.  1;  43  Pac.  387.     An  appeal 
from  an  order  denying  a  motion  for  a  new 
trial  may  be  taken  before  the  judgment  is 
entered.    Schroder  v.  Schmidt,  71   Cal.  399; 
12  Pac.  302. 

Motion    for   new   trial   after   notice    of 
entry  of  judgment.    See  note  ante,  §  659. 


1031 


REVIEW  OF  ORDERS,  GENERALLY. 


§939 


Order  dissolving  injunction.  An  appeal 
from  an  order  ilissohiii^  an  in.juiR-tion 
must  be  taken  witliin  sixty  days  from  the 
entry  of  the  order.  Barliam  v.  Ilostetter, 
67  Cal.  272;  7  Pac.  (iSO;  and  see  Mc- 
Courtney  v.  Fortune,  42  Cal.  .SS7. 

Order  dissolving  attachment.  An  appeal 
from  an  order  dissolvin<;  an  attaidiment 
may  be  taken,  under  tliis  section,  witliin 
sixty  days  from  the  date  of  the  order, 
whether  the  appellant  takes  steps  to  jire- 
serve  the  lieu  of  the  attachment  or  not. 
Flagg  V.  Puterbaufih,  101  Cal.  5S3;  3G  Pac. 
95. 

Order  changing  place  of  trial.  An  ap- 
peal must  be  tal^en  witliin  sixty  days  after 
the  entry  or  filing  of  an  order  changing 
the  place  of  trial.  Chase  v.  Superior  Court, 
154  Cal.  789;  99  Pac  :!5."). 

Order  made  after  final  judgment.  An 
order  discharging  a  judgment  debtor  from 
imprisonment  is  a  special  order  made  after 
final  judgment,  though  made  by  the  judge 
of  another  court,  who  was  authorized  to 
take  jurisdiction  of  such  proceedings,  and 
an  ap])eal  must  be  taken  within  sixty  days 
from  the  entry  of  the  order.  Wells  Fargo 
&  Co.  V.  Anthony,  .35  Cal.  696.  An  order 
refusing  to  set  aside  and  vacate  a  judg- 
ment must  be  appealed  from  within  sixty 
days  from  the  entry  of  the  order.  Mc- 
Courtney  v.  Fortune,  42  Cal.  387.  An  ap- 
peal from  an  order  refusing  to  vacate  a 
judgment  by  default,  being  from  an  order 
made  after  final  judgment,  must  be  taken 
within  sixty  days  from  the  date  of  such 
order.  Doyle  v.  Republic  Life  Ins.  Co.,  125 
Cal.  15;  57  Pac.  C67;  and  see  Harper  v. 
Hildreth,  99  Cal.  265;  33  Pac.  1103.  An 
order  of  sale  of  mortgaged  premises,  for 
the  entire  debt  after  its  maturity,  after 
judgment  of  foreclosure,  is  appealable  only 
as  an  order  made  after  judgment,  and 
within  sixty  davs  from  the  entry  thereof. 
Byrne  v.  Hoag,a26  Cal.  283;  58  Pac.  688. 
An  order  that  money  sold  on  execution, 
without  delivery,  be  paid  to  the  purchaser 
is  appealable  as  a  special  order  made  after 
final  judgment.  Masee  v.  Superior  Court, 
10  Cai.  App.  154;  lOl'Pac.  532. 

Appeal  from  orders  made  after  judg- 
ment.    See  note  post.  §  963. 

Interlocutory  judgment  appealable  when. 
No  appeal  can  be  taken  from  an  inter- 
locutory order,  unless  the  order  be  desig- 
nated by  statute  as  one  of  those  from 
which  an  appeal  may  be  taken.  Title  In- 
surance etc.  Co.  V.  California  Development 
Co.,  159  Cal.  484;  114  Pac.  838.  No  api.eal, 
except  as  specified  in  this  section,  is  au- 
thorized from  an  interlocutorv  judgment. 
Fay  V.  Fay,  165  Cal.  469;  132  Pac.  1040. 
An  appeal  from  an  interlocutory  decree  in 
partition  must  be  taken  within  sixty  days 
from  the  entry  of  the  decree  in  the  min- 
utes of  the  court.  Regan  v.  McMahon,  43 
Cal.  625;  Watson  v.  Sutro,  77  Cal.  609; 
20  Pac.  88;   Bartlett  v.  Mackey,  130  Cal. 


181;  62  Pac.  482;  Dore  v,  Klumpke,  140 
Cal.  356;  73  Pac.  1064;  Bloom  v.  Gordan, 
150  Cal.  762;  90  Pac.  115.  An  interlocu- 
tory judgment  which  has  become  final,  in 
an  action  for  partition,  and  to  enforce  a 
trust  in  favor  of  other  alleged  heirs  of 
a  deceased  person,  against  the  distribu- 
tee of  his  estate,  adjmlging  that  such  al- 
leged lieirs  had  no  interest  in  the  land 
'distributed,  is  conclusive  upon  all  of  the 
claimants,  as  to  any  trust  of  the  distributee 
in  their  favor,  when  not  appealed  from 
within  sixty  days.  Quirk  v.  Rooney,  130 
Cal.  505;  62  Pac.  825;  and  see  Lorenz  v. 
Jacobs,   53   Cal.   24. 

Order  approving  account  of  receiver.  A 
notice  of  appeal  from  an  order  apjiroving 
the  account  of  a  receiver,  served  more  than 
sixty  days  after  the  entry  of  the  order, 
is  too  late,  even  if  such  order  is  appealaVjle. 
Illinois  etc.  Savings  Bank  v.  Pacific  Rail- 
way Co.,  99  Cal.  407;  33  Pac.  1132;  but  see 
Los  Angeles  v.  Los  Angeles  Citv  Water 
Co.,  134  Cal.  121,  67  Pac.  198,  holding  that 
an  appeal  from  an  order  settling  the  ac- 
count of  a  receiver,  and  directing  the  pay- 
ment of  his  compensation  by  one  of  the 
parties,  may  be  taken,  as  from  a  final 
judgment,  within  six  months  after  its 
entry. 

Probate  orders  and  decrees.  Appeals  in 
probate  proceedings  are  governed,  so  far 
as  the  time  for  taking  an  appeal  is  con- 
cerned, bv  §  1715,  post.  Estate  of  Brewer, 
156  Cal.  89;  103  Pac.  486.  An  appeal  from 
an  order  denying  the  revocation  of  the 
probate  of  a  will,  taken  more  than  sixty 
days  after  its  entrv,  must  be  dismissed. 
Estate  of  Nelson,  132  Cal.  182;  64  Pac.  294. 
An  apjieal  from  an  order  refusing  the  pro- 
bate of  a  will  is  properly  taken  within 
sixty  days  from  the  entry  of  the  order;  the 
provisions  of  this  section,  in  regard  to  the 
rendition  of  judgments,  do  not  apply  in 
such  case.  Estate  of  Fay,  145  Cal.  82;  104 
Am.  St.  Rep.  17;  78  Pac.  340.  An  appeal 
from  a  decree  of  distribution,  or  from  a 
decree  of  final  discharge  of  an  adminis- 
trator, taken  more  than  sixty  days  after 
its  entrv,  must  be  dismissed.  Estate  of 
Campbell,  141  Cal.  72;  74  Pac.  550.  An 
appeal  from  an  amended  judgment,  in  pro- 
bate proceedings,  may  be  taken  within 
sixty  days  from  the  date  of  the  amend- 
ment, though  more  than  sixty  days  since 
the  entrv  of  the  original  judgment.  Estate 
of  Potter.  141  Cal.  350;  74  Pac.  9S6. 

Time  for  appeal  begins  to  run  when.  The 
time  for  appeal  from  a  final  judgment  be- 
gins to  run  from  the  time  of  the  actual 
entry  of  the  judgment.  Coon  v.  Grand 
Lodge,  76  Cal.  354;  18  Pac.  384;  Moore  v. 
Miller  6  Cal.  Unrep.  110;  54  Pac.  263;  and 
see  In  re  Fifteenth  Avenue  Extension,  54 
Cal.  179.  Where  the  minute-entry  of  the 
clerk  is  not  suflicient  to  amount  to  a  judg- 
ment of  nonsuit,  being  a  mere  memoran- 
dum   from    which    data    for    a    judgment 


§939 


APPEALS   IN    GENERAL. 


1032 


might  be  drawn,  the  time  to  appeal  does 
not  begin  to  run  until  the  entry  of  a 
proper  judgment  of  nonsuit;  hence,  an  ap- 
peal taken  within  six  mouths  after  the 
entry  of  such  proper  judgment  is  in  time. 
Ferris  v.  Baker,  127  Cal.  520;  59  Pac.  937. 
\Yhere  a  judgment  is  amended,  the  date  of 
the  amendment  must  be  taken  as  the  true 
date  of  the  entry  for  the  purpose  of  ap- 
peal; hence,  an  appeal  from  a  judgment," 
taken  within  six  months  from  the  entry  of 
the  amended  judgment,  is  in  time,  though 
taken  more  than  six  months  after  the  entry 
of  the  original  judgment.  Hayes  v.  Silver 
Creek  etc.  Water  Co.,  136  Cal.  238;  68  Pae. 
704.  The  entry  of  the  interlocutory  de- 
cree, and  not  the  mere  ministerial  act  of 
the  clerk  in  compiling  the  judgment  roll 
after  such  entry,  sets  the  statute  of  limita- 
tions running  for  the  purpose  of  appeal. 
Dore  V.  Klumpke,  140  Cal.  356;  73  Pac. 
1064.  AVhere  no  notice  of  the  entry  of  the 
order  or  judgment  has  been  given,  the  ap- 
peal must  be  taken  within  six  months  from 
the  entrv  of  judgment.  Foss  v.  Johnstone, 
158  Cal.' 119;  110  Pac.  294.  The  time  for 
appeal  by  interveners  commences  to  run 
from  the  time  the  complaint  in  interven- 
tion is  stricken  out  for  want  of  interest, 
and  not  from  the  time  of  judgment  be- 
tween the  original  parties;  hence,  an  ap- 
peal from  an  order  dismissing  a  complaint 
in  intervention  for  want  of  interest,  taken 
more  than  one  year  after  the  rendition  of 
such  order,  is  not  in  time.  More  v.  Miller, 
6  Cal.  Unrep.  78;  53  Pac.  1077.  An  appeal 
from  a  judgment  in  a  court  of  record  may 
not  be  taken  until  after  the  "entry"  of 
the  judgment;  but  the  time  for  an  appeal 
from  a  judgment  in  a  justice's  court  begins 
to  run  upon  its  "rendition."  Thompson  v. 
Superior  Court,  161  Cal.  329;  119  Pac.  98. 
The  presumption  is,  that  the  judgment  was 
entered  before  the  judgment  roll  was  made 
up;  and  an  appeal  from  the  judgment, 
taken  within  less  than  six  months  from 
such  presumed  entry,  is  in  time.  Foss  v, 
Johnstone,  158  Cal.  il9;  110  Pac.  294. 

Time    for    appeal   begins   to    run   when. 
See  also  note  r'ost,  §  941b. 

Extension  of  time  for  taking  appeal. 
Statutes  limiting  the  time  for  taking  an 
appeal  are  jurisdictional,  and  cannot  be 
enlarged  by  stipulation  of  the  parties  or 
order  of  court.  Land  v.  Johnston,  156  Cal. 
253;  104  Pac.  449.  The  supreme  court 
cannot  enlarge  the  time  fixed  by  statute 
for  taking  an  appeal  (Dooling  v.  Moore,  20 
Cal.  142);  the  period  fixed  by  the  statute 
being  an  express  and  jjeremptory  limita- 
tion of  time  within  which  the  appeal  must 
be  taken,  and  not  a  flexible  rule  to  be' 
varied  bv  extrinsic  circumstances.  Henry 
V.  Merguire,  111  Cal.  1;  43  Pac.  387.  The 
statutes  limiting  the  time  for  appeal  are 
jurisdictional  and  mandatory,  and  courts 
have  no  power,  not  given  by  statute,  to 
extend  the  time  limited  for  an  appeal,  or 


to  relieve  an  appellant  from  the  effect  of 
misfortune,  accident,  surprise,  or  mistake. 
Williams  v.  Long,  130  Cal.  58;  80  Am.  St. 
Eep.  68;  62  Pac.  264. 

Appeal  after  time  has  expired,  dismissal 
of.  An  appeal  from  a  judgment,  taken 
after  the  time  to  appeal  has  expired,  can- 
not be  considered,  and  must  be  dismissed. 
Gray  v.  Palmer,  28  Cal.  416;  Bates  v.  Gage, 
49  CaL  126;  Voll  v.  Hollis,  60  Cal.  569; 
Gray  v.  Winder,  77  Cal.  525;  20  Pac.  47; 
Mattingly  v.  Pennie,  105  Cal.  514;  45 
Am.  St.  "'Eep.  87;  39  Pac.  200;  Henry  v. 
Merguire,  111  Cal.  1;  43  Pac.  387;  Sutter 
County  V.  Tisdale,  128  Cal.  180;  60  Pac. 
757;  Moore  v.  Douglas,  132  Cal.  399;  64 
Pac.  705;  Hunter  v.  Milam,  133  Cal.  602; 
65  Pac.  1079;  Bunting  v.  Salz,  3  Cal.  Unrep. 
193;  22  Pac.  1132;  Contra  Costa  Countv  v. 
Soto,  138  Cal.  57;  70  Pac.  1019;  Robinson 
V.  Eberhart,  148  Cal.  495;  83  Pac.  452; 
Michaelson  v.  Fish,  1  Cal.  App.  116;  81 
Pac.  661;  Walbridge  v.  Cousins,  2  Cal.  App. 
302;  83  Pac.  462;  Prine  v.  Duncan,  7  Cal. 
Unrep.  330;  90  Pac.  713;  Sheehan  v.  La- 
pique,  15  Cal.  App.  517;  115  Pac.  965. 
Formerly,  an  appeal  not  taken  within  one 
year  after  the  "entry"  of  judgment  had  to 
be  dismissed  (United  States  v.  Crooks,  116 
Cal.  43;  47  Pac.  870;  Cox  v.  Odell,  1  Cal. 
App.  682;  82  Pac.  1086);  but  now  an  appeal 
not  taken  within  six  months  after  the 
"entry"  of  judgment  must  be  dismissed. 
Begbie  v.  Begbie,  128  Cal.  154;  49  L.  R.  A. 
141;  60  Pac.  667;  McGorray  v.  Stockton 
Sav.  &  L.  Soc,  131  Cal.  321;  63  Pae.  479; 
McDonald  v.  Lee,  132  Cal.  252;  64  Pac. 
250;  Hellman  v.  Longley,  154  Cal.  78;  97 
Pac.  17;  Dundas  v.  Lankershim  School  Dis- 
trict, 155  Cal.  692;  102  Pac.  925;  Allen  v. 
Allen,  159  Cal.  197;  113  Pac.  160;  Calkins 
V.  Howard,  2  Cal.  App.  233;  83  Pac.  280; 
Houghton  Co.  v.  Kennedy,  8  Cal.  App.  777; 
97  Pac.  905;  Green  v.  Gavin,  10  Cal.  App. 
330;  101  Pac.  931;  Bennett  v.  Potter,  16 
Cal.  App.  183;  116  Pac.  681;  Breidenbach 
v.  McCormick  Co.,  20  Cal.  App.  184;  128 
Pac.  423.  Where  an  appeal  from  a  judg- 
ment of  a  county  court,  rendered  on  appeal 
from  a  justice's  court,  was  taken  more  than 
ninety  days  after  the  entry  of  judgment, 
the  supreme  court  had  no  jurisdiction. 
Dooling  V.  Moore,  20  Cal.  142.  That  part 
of  a  final  judgment  which  vacates  a  tem- 
porary injunction  is  not  an  "order,"  and 
an  appeal  therefrom  will  not  be  dismissed 
because  not  taken  within  sixtv  days. 
Bekins  v.  Dieterle,  5  Cal.  App.  '586;  91 
Pac.  105.  An  appeal  from  an  order  deny- 
ing a  new  trial,  taken  more  than  sixty 
days  after  entry  of  the  order,  will  be  dis- 
missed. Hellman  v.  Longley,  154  Cal.  78; 
97  Pac.  17;  McDonald  v.  Lee,  132  Cal.  252; 
64  Pac.  250.  The  fact  that  the  respondent 
died  only  a  short  time  before  the  expira- 
tion of  the  six  months  allowed  for  the  ap- 
peal, and  that  not  until  after  the  expiration 
of    such    time    was    an    administrator    ap- 


1033 


PREMATURE  APPEAL  DISMISSED. 


§939 


pointed,  upon  Avhoni  service  of  notice  of 
appeal  was  made  with  due  diligence,  can- 
not operate  to  suspend  the  period  of  limi- 
tation, nor  to  preclude  the  dismissal  of  the 
api)eal.  Williams  v.  Long.  13U  Cal.  58;  SO 
Am.  St.  Kep.  6S;  62  Pac.  2(34.  No  appeal 
is  instituted  by  the  service  of  a  notice  of 
aj)i»eal  after  the  time  to  appeal  has  ex- 
pired; hence,  an  order  will  not  be  made 
dismissing  such  attempted  apjieal.  Estate 
of  Walkerly,  4  Cal.  Unrep.  819;  37  Pac. 
893. 

Premature  appeal,  dismissal  of.  An  ap- 
peal taken  from  a  judi,'nu'nt,  before  the 
actual  entry  thereof,  although  after  its 
rendition,  is  ])remature,  and  will  be  dis- 
missed. Thomas  v.  Anderson,  So  Cal.  43; 
Schroder  v.  Schmidt,  71  Cal.  399;  12  Pac. 
302;  Tyrrell  v.  Baldwin,  72  Cal.  192;  13 
Pac.  475;  Homo  for  Inebriates  v.  Kajdan, 
84  Cal.  486;  24  Pac.  119;  People  v.  Center, 
66  Cal.  551;  5  Pac.  263;  Kimple  v.  Conway, 
69  Cal.  71;  10  Pac.  189;  Bradv  v.  Burke, 
90  Cal.  1;  27  Pac.  52;  McHugh  v.  Adkins, 
117  Cal.  228;  49  Pac.  2;  Bell  v.  Staacke, 
137  Cal.  307;  70  Pac.  171;  Estate  of  More, 
143  Cal.  493;  77  Pac.  407;  McLaughlin  v. 
Doherty,  54  Cal.  519;  Wood  v.  Etiwanda 
Water  Co.,  122  Cal.  152;  54  Pac.  726;  Wood 
V.  Missouri  Pacific  Ry.  Co.,  152  Cal.  344; 
92  Pac.  868.  An  appeal  from  a  .iudgment, 
and  from  an  order  refusing  to  set  aside  a 
default  judgment,  taken  by  a  party  against 
whom  no  judgment  has  been  rendered,  is 
prematurely  taken,  and  must  be  dismissed. 
Scotland  v.  East  Branch  Mining  Co.,  56 
Cal.  625.  W^here  the  notice  of  appeal  from 
the  judgment  was  filed  on  the  day  on  which 
the  judgment  was  entered,  the  appeal  is 
not  premature,  although  the  notice  was 
served  on  the  "preceding  dav.  Tyrrell  v. 
Baldwin,  72  Cal.  192;  13  Pac.  475.  The 
rights  of  the  parties  in  respect  to  an  appeal 
are  determined  by  the  date  of  the  actual 
entry  of  the  judgment,  and  they  cannot  be 
affected  by  the  entry  of  the  judgment 
nunc  pro  tunc  as  of  a  prior  date;  hence, 
an  appeal  from  a  judgment,  taken  prior 
to  the  date  of  its  actual  entry,  is  prema- 
ture, and  will  be  dismissed.  Coon  v.  Grand 
Lodge,  76  Cal.  354;  18  Pac.  384.  A  de- 
cree of  distribution  of  the  estate  of  a  de- 
ceased person  is  not  entered  so  as  to 
authorize  an  appeal,  until  it  is  entered  at 
length  in  the  minute-book  of  the  court; 
hence,  an  appeal  taken  before  such  entry 
is  premature.  Estate  of  Pearsons,  119  Cal. 
27;  5U  Pac.  929.  An  appeal  from  an  order 
vacating  a  sale  of  the  real  estate  of  a  de- 
ceased person,  taken  before  the  entry  of 
the  order  in  the  minutes  of  the  court,  is 
premature.  Estate  of  Devincenzi,  131  Cal. 
452;  63  Pac.  723. 

Certiorari  after  time  for  appeal  has  ex- 
pired. A  writ  of  certiorari  will  not  be 
issued  after  the  la]ise  of  the  period  within 
which  an  appeal  might  have  been  taken, 
under  this  section,  from  the  judgment  or 


order  sought  to  be  reviewed,  where  no  cir- 
cumstances of  any  kind  are  made  to  appear 
to  justify  the  delay  in  ajtplying  for  the 
writ.  Kimple  v.  Sui)erior  Court,  66  Cal. 
136;  4  Pac.  1149. 

Dismissal  of  appeal.  See  also  note  post, 
§  954. 

"Rendition"  and  "entry"  of  judgment. 
A  judgment  is  "ri'inlcrcd"  when  an  order 
for  a  judgment  is  made  by  the  court,  and 
"entered"  when  it  is  actually  entered  in 
the  judgment-book.  Thomas  v.  Anderson, 
55  Cal.  43;  Shurtz  v.  Komer,  81  Cal.  244;  22 
Pac.  657.  The  term  "rendition  of  the  judg- 
ment," in  this  section,  means  either  the 
announcement  from  the  bench  entered  in 
the  minutes,  or  the  filing  of  the  findings,  if 
there  are  findings,  or  both.  Estate  of  Kose, 
3  Cal.  Unrep.  50;  20  Pac.  712;  Wood  v. 
Etiwanda  Water  Co.,  122  Cal.  152;  54  Pac. 
726.  A  judgment  is  rendered  when  the 
order  therefor  is  made  and  entered,  and 
the  judgment  is  signed  by  the  judge  and 
filed  in  the  cause,  and  nothing  remains  to 
be  done  but  the  mere  ministerial  duty  of 
copying  it  into  the  record.  Gray  v.  Palmer, 
28  Cal.  416;  Painter  v.  Painter,  113  Cal. 
371;  45  Pac.  689;  Peck  v.  Courtis,  31  Cal. 
209;  Genella  v.  Kelyea,  32  Cal.  159;  Wag- 
genheim  v.  Hook,  35  Cal.  216;  Wetherbee 
V.  Dunn,  36  Cal.  249;  Webster  v.  Cook, 
38  Cal.  423;  McLaughlin  v.  Doherty,  54 
Cal.  519.  An  amendment  of  the  judg- 
ment as  entered,  nunc  pro  tunc,  so  as 
to  include  therein  the  name  of  an  omitted 
defendant  as  of  the  date  of  its  original  en- 
try, cannot  operate  to  deprive  such  de- 
fendant of  his  right  of  appeal  from  the 
judgment  then  entered  against  him  for  the 
first  time.  Spencer  v.  Troutt,  133  Cal.  605; 
65  Pac.  1083.  A  recital  in  the  notice  of  ap- 
peal, that  the  judgment  was  entered  on  the 
date  of  its  rendition,  and  acknowledgment 
of  service  thereon,  and  the  use  of  the  word 
"entered"  in  the  bill  of  exceptions,  do  not 
constitute  a  stipulation  that  the  decree  has 
been  entered,  so  as  to  authorize  an  appeal. 
Estate  of  More,  143  Cal.  493;  77  Pac.  407. 
Under  the  Practice  Act,  the  appeal  ran 
from  "the  rendition  of  the  judgment,"  by 
which  was  meant  its  announcement  by  the 
court,  and  its  entry  upon  the  minutes  of 
the  clerk,  or  the  filing  of  the  findings  and 
order  for  judgment.  Wood  v.  Etiwanda 
Water  Co.,  122  Cal.  152;  54  Pac.  726.  The 
amendment  to  this  section  in  1907  substi- 
tuted "entry"  for  "rendition,"  in  that  part 
of  the  first  subdivision  which  refers  to  a 
review  of  an  exception  to  the  decision  or 
verdict.  Boin  v.  Spreckels  Sugar  Co.,  155 
Cal.  612;  102  Pac.  937. 

What  are  final  and  Interlocutory  Judgments. 
Soe  note  (50  Am.  Doc.  42  7. 

What  judgments  aud  orders  may  be  appealed 
from.    Sii-  nolf  120  Am.  St.  Ki-p.   173. 

Computation  of  time  for  appeal  as  affected  by 
motion  for  new  trial  oi  rehearing,  tit-e  note  8 
Ann.  Cas.  630. 


§940 


APPEALS   IN   GENERAL. 


1034: 


Validity  and  construction  of  statutes  requiring 
appellate  courts  to  weigh  evidence.  See  note  3 
Ann.  Cas.  685. 

Necessity  for  motion  for  new  trial  in  order  to 
obtain  review  on  appeal  of  sufficiency  of  evidence 
in  jury  cases.    See  notn  4  Ann.  Cas.  304. 

Appealability  of  judgments  in  contempt  under 
appeal  statutes.  See  notes  3  Ann.  Cas.  759;  17 
Ann.  Cas.  321. 

Finality  of  decree  adjudicating  equities  but 
reserving  settlement  of  accounts  for  report  of 
master.    See  note  5  .Vnn.  Cas.  176. 

Eight  to  appeal  from  ex  parte  order.  See  note 
10  Ann.  Cas.  38. 

Appealability  of  order  granting  or  refusing  writ 
of  assistance.    See  note  10  Ann.  Cas.  1042. 

Appealable  judgments  and  orders  in  eminent 
domain  proceedings.    See  note  16  Ann.  Cas.  1004. 

Order  dismissing  action  as  frivolous  as  final  or 
interlocutory  for  purposes  of  appeal.  See  note  18 
Ann.  Cas.  394. 

CODE  COMMISSIONERS' NOTE.     1.   Subd.  1. 

Appeal  from  a  jiidfrment  must  be  taken  within 
a  year.  Waggenlu-im  v.  Hook,  35  Cal.  216.  If 
the  appeal  is  not  taken  ■within  a  year,  it  will  be 
dismissed.  Bornheimer  v.  Baldwin,  38  Cal.  671. 
The  time  within  which  an  appeal  from  a  judg- 
ment may  be  taken  is  not  computed  from  the 
date  of  the  entry  of  the  judgment  by  the  clerk 
in  the  judgment-book,  but  from  the  time  the 
judgment  is  announced  by  the  court  and  entered 
in  the  minutes.  Wetherbee  v.  Dunn,  3  6  Cal. 
249;  Genella  v.  RelVea,  32  Cal.  159;  Gray  v. 
Palmer,  28  Cal.  417;  Peck  v.  Courtis,  31  Cal. 
207.  If  a  demurrer  to  an  intervention  is  sus- 
tained, and  judgment  thereupon  rendered  against 
the  intervener,  he  may  appeal  at  once.  Stich  v. 
Goldner,  38  Cal.  608.  The  time  for  an  appeal 
from  a  judgment  on  demurrer  commences  to  run 
from  its  rendition,  not  from  the  time  of  the 
ruling  on  the  demurrer.  Webster  v.  Cook,  38 
Cal.    423.      If   the    appeal    is    dismissed   for   want 


of  an  undertaking,  and  no  final  judgment  has 
been  rendered,  a  second  appeal  may  be  taken 
within  the  period  allowed  by  law.  Martinez  v. 
Gallardo,  5  Cal.  155.  An  appeal  from  an  order 
denying  a  new  trial,  although  taken  more  than 
a  year  after  rendition  of  a  judgment,  brings  up 
the  whole  record.  And  if  there  was  error  in 
refusing  a  new  trial,  the  appellate  court  will 
order  a  new  trial,  which,  in  effect,  vacates  the 
judgment.  Walden  v.  Murdock,  23  Cal.  540;  83 
Am.  Dec.    135. 

2.  Subd.   2.     Doolingv.  Moore,  20  Cal.  141. 

3.  Subd.  3.  An  appeal  from  an  order  denying 
a  new  trial  must  be  taken  within  sixty  days. 
Waggenheim  v.  Hook,  35  Cal.  216;  Towdv  v. 
Ellis,  22  Cal.  650;  Brown  v.  Tolles.  7  Cal.  398; 
Peck  V.  Vandenberg,  30  Cal.  11;  Peck  v.  Courtis, 
31  Cal.  207.  An  appeal  from  an  order  refusing 
to  vacate  award  of  arbitrators  must  be  taken 
within  sixty  days  from  date  of  order.  Fairchild 
V.  Daten,  38  Cal.  286.  If  an  appeal  from  the 
judgment  is  dismissed,  the  dismissal  is  not  a 
bar  to  an  appeal  from  an  order  refusing  a  new 
trial.  Fulton  v.  Cox,  40  Cal.  101;  Fulton  v. 
Hanna,  40  Cal.  278;  Waugenheim  v.  Graham, 
39  Cal.  169.  After  appealing  from  a  judgment, 
a  party  may  appeal  from  an  order  overruling 
a  motion  for  a  new  trial,  if  the  latter  appeal 
is  taken  in  time.  Marziou  v.  Pioche,  8  Cal.  522. 
Where  an  appeal  is  taken,  both  from  a  final 
judgment  and  an  order  refusing  a  new  trial, 
after  sixty  days  from  the  entry  of  the  order 
for  a  new  trial,  the  appeal,  so  far  as  the  order 
is  concerned,  will,  on  motion,  be  dismissed. 
Lower  v.  Knox,  10  Cal.  480.  An  order  made  by 
the  court  on  a  motion  is  a  final  adjudication 
upon  the  subject-matter,  unless  appealed  within 
the  time  allowed  by  law,  nor  can  the  time  for 
appeal  be  extended  by  subsequent  renewal  of 
the  motion,  even  if  it  be  varied  in  its  terms, 
provided  it  is  substantially  the  same  motion. 
Kittredge  v.  Stevens,  23  Cal.  283.  See,  gener- 
ally, Gray  v.  Palmer,  28  Cal.  416. 

§  940.  Appeal,  how  taken.  An  appeal  is  taken  by  filing  with  the  clerk 
of  the  court  in  w^hich  the  judgment  or  order  appealed  from  is  entered,  a 
notice  stating  the  appeal  from  the  same,  or  some  specific  part  thereof,  and 
serving  a  similar  notice  on  the  adverse  party,  or  his  attorney.  The  order 
of  service  is  immaterial,  but  the  appeal  is  ineffectual  for  any  purpose,  un- 
less wathin  five  days  after  service  of  the  notice  of  appeal,  an  undertaking 
be  filed,  or  a  deposit  of  money  be  made  with  the  clerk,  as  hereinafter  pro- 
vided, or  the  undertaking  be  waived  by  the  adverse  party  in  writing. 

Method  of  appeal.  Where  a  party  takes 
an   appeal   under   this   section,   instead   of 


Service  of  papers.  Post,  §§  1010-1017. 
Notice,  generally.  Post,  §§  1010  et  seq. 
Undertaking  on  appeal. 

1.  Requirements  of.    Post,  §  941. 

2.  Unnecessary  when.    Post,  §§  965,  1058. 

3.  Exception    to    sureties,    time    for.     Post, 
§  948. 

Exceptions,  necessity  for.  Ante,  §§646,  647; 
post.  §  956. 

Practice  on  appeals  in  criminal  causes.  See 
Pen.  Code,  §§  1237  et  seq. 

Legislation  §  940.  1.  Enacted  March  11,  1873  ; 
based  on  Practice  Act,  §  3.S7,  which  read:  "The 
appeal  shall  be  made  by  filing  with  the  clerk  of 
the  court,  with  whom  the  judgment  or  order  ap- 
pealed from  is  entered,  a  notice  stating  the  appeal 
from  the  same,  or  some  specific  part  thereof, 
and  serving  a  copy  of  the  notice  upon  the  ad- 
verse party  or  his  attorney."  When  enacted  in 
1872,  §  940  read:  "An  appeal  is  taken  by:  1. 
Filing  with  the  clerk  of  the  court  in  which  the 
judgment  or  order  appealed  from  is  entered  or 
filed  a  notice  stating  the  appeal  from  the  same, 
or  some  specific  part  thereof:  2.  Filing,  at  the 
same  time,  an  undertaking  on  appeal;  and,  3. 
Serving  a  copy  of  the  notice  of  appeal  upon  the 
adverse  partv  or  his  attornev." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  336. 

3.  .Amendment  by  Stals.  1901,  p.  173;  un- 
constitutional.   See  note  ante,  §  5. 


under  §§  9-lla,  9-41b,  and  941c,  post,  he  may 
support  it  either  by  a  transcript  prepared 
and  filed  under  §§"^9.53a,  9.53b,  and  9.53c, 
post,  or  by  a  transcript  printed  and  filed 
as  was  customary  previous  to  the  enact- 
ment of  those  sections,  and  as  directed  by 
the  rules  of  the  su])reme  court.  Lang  v. 
Lilley  &  Thurston  Co.,  161  Cal.  295;  119 
Pac.  100.  An  appeal  may  be  taken  under 
either  this  section  or  §  941b:  if  properly 
taken  under  either,  the  appellate  court  has 
jurisdiction,  whether  any  transcript  is  filed 
to  support  it  or  not.  Smith  v.  Jaccard.  20 
Cal.  App.  2S_0;  128  Pac.  1026.  An  appeal, 
to  be  effective,  must  be  perfected  under 
either  the  new  or  the  old  method.  Credit 
Clearance  Bureau  v.  Wearv  &  Alford  Co., 
18  Cal.  App.  4G7;  123  Pac.  548. 

Appeal  deemed  taken  when.  An  appeal 
is  taken,  under  this  section,  when  the  no- 
tice of  appeal  is  served  and  filed,  although 


103: 


PARTIES  TO  APPEAL — NOTICE. 


§940 


the  undortakinff.  whioh  perfects  the  appeal, 
is  not  filed  until  afterwards.  Perkins  v. 
Cooper,  3  Cal.  Unreji.  279;  24  J'ae.  ;}77. 
Where  the  notice  is  given  under  §  9'M\  ante, 
it  must  be  served  and  filed  and  the  umler- 
takiny  given  as  refpiired  bv  this  section. 
Theisen  v.  Matthai,  IGo  Cal.'  249;  1:5 1  I'ac. 
747. 

Alternative  method  of  perfecting  appeal. 
See  note  [lost,  §  ^.^'>.'>a. 

Appeal  from  part  of  judgment  or  order. 
A  party  may  aiijjeal  from  the  whole  or 
from  any  sjjccific  part  of  a  juilgment.  Eng- 
land v.  Lewis,  2.J  Cal.  337.  An  appeal  may 
be  taken  from  a  portion  of  an  order,  as 
well  as  from  a  i>ortion  of  a  judgment. 
Donnelly  v.  Gray  Brothers,  3  Cal.  App.  .59; 
84  Pac.  451.  Where  only  part  of  a  .judg- 
ment is  appealed  from,  that  part  not  ap- 
pealed from  is,  ordinarily,  not  affected,  and 
is  final.  Whalen  v.  Sm'ith,  163  Cal.  3GU; 
Ann.  Cas.  1913E,  1319;   125  Pac.  904. 

Probate  appeals.  This  section,  in  its  ap- 
plication to  probate  appeals,  is  limited. 
Estate  of  Brewer.  15G  Cal.  89;  1U3  Pac.  4S(i. 

Necessary  parties  to  appeal.  All  the  par- 
ties to  a  final  judgment  in  a  partition  suit 
.must  be  made  parties  to  au  appeal  from 
the  whole  of  the  judgment,  either  as  ap- 
pellants or  respondents,  or  the  appeal  will 
prove  ineffectual.  Senter  v.  Bernal,  38  Cal. 
637.  The  fact  that  the  judgment  or  order 
appealed  from  may  be  used  as  evidence  in 
some  collateral  action  or  proceeding,  or 
that  its  reversal  may  have  a  remote  or  con- 
sequential effect,  to  the  prejudice  of  one 
not  a  party  thereto,  does  not  entitle  such 
person  to  be  made  a  partv  to  the  appeal. 
Estate  of  Ryer,  110  Cal.  556;  42  Pac.  10S2. 
While  the  adverse  party  must  necessarily 
be  before  the  court  on  appeal,  yet  it  is 
immaterial  whether  his  presence  is  by  a 
voluntary  appearance  or  whether  he  has 
been  brought  there  by  a  hostile  notice 
from  the  appellant.  Ilibernia  Sav.  &  L. 
Soc.  V.  Lewis,  111  Cal.  519;  44  Pac.  175. 
Although  the  name  of  a  person  and  his 
interest  in  the  estate  in  controversy  are 
disclosed  upon  the  record,  yet  such  person  is 
not  necessarily  a  party  to  the  cause.  Estate 
of  McDougald,  143  Cal.  476;  77  Pac.  443. 
The  parties  to  the  motion  for  a  new  trial 
are  the  only  necessary  parties  to  the  ap- 
peal from  the  order  denying  it.  Herriman 
V.  Menzies,  115  Cal.  16;  56  Am.  St.  Rep. 
82;  35  L.  R.  A.  318;  44  Pac.  660;  and  see 
Watson  V.  Sutro.  77  Cal.  609;  20  Pac.  88; 
Estate  of  Rver,  110  Cal.  556;  42  Pac.  1082; 
Barnhart  y.  Edwards,  111  Cal.  428;  44  Pac. 
160;  Johnson  v.  Phenix  Ins.  Co.,  146  Cal. 
571;  SO  Pac.  719. 

Necessity  of  giving  notice.  To  take  an 
appeal,  notice  of  aj'peal  must  be  given, 
under  either  this  section  or  §  941b,  post:  a 
notice  to  the  clerk  to  prejiare  a  transcript 
is  not  a  notice  of  appeal.  Boling  v.  Alton, 
162  Cal.  297;  122  Pac.  461. 

Sufficiency  of  notice.  The  object  of  the 
notice  of  appeal  is  to  impart  to  the  oppo- 


site party  the  requisite  information  of  his 
ojiponeut's  intention  to  a|)peal,  and  what 
specific  judgment  or  order  ia  a[)peale(l 
from;  and  where  the  notice  is  sunicicntly 
exjdicit  in  these  particulars,  it  is  suflicient. 
Weyl  v.  Sonoma  Valley  U.  R.  Co.,  69  Cal. 
202;  10  Pac.  510.  In  order  to  sustain  a 
notice  of  ai>peal  as  au  appeal  from  a  judg- 
ment, the  jiaper  relieil  upon  for  that  pur- 
pose should  state,  at  least,  that  the  appeal 
is  taken  from  a  judgment,  or  use  other 
language  which  can  be  so  construed.  Meley 
V.  Boulon,  104  Cal.  262;  37  Pac.  931.  The 
notice  of  ajipeal,  in  form,  must  suflii-iently 
imlicate  the  order  or  judgment  from  which 
the  ajtpeal  is  taken.  Estate  of  Nelson,  128 
Cal.  242;  60  Pac.  772.  Where  there  is  but 
one  judgment  in  the  action,  a  notice  of  ap- 
peal stating  that  the  plaintiff  appeals  from 
the  said  judgment  made  and  entered  in 
said  action,  is  not  insufficient  for  uncer- 
tainty, in  failing  to  give  the  date  of  the 
judgment  or  other  identification.  Jones  v. 
Iverson,  131  Cal.  101;  63  Pac.  135.  A  no- 
tice of  appeal  reciting  that  it  is  taken 
from  an  order  and  decree  made  and  en- 
tered on  a  certain  day,  directing  letters  of 
administration  to  issue  to  the  public  ad- 
ministrator, is  sufficient,  there  having  been 
only  one  order  and  decree  made  upon  that 
day,  or  any  other  day,  making  such  ap- 
pointment. Estate  of  Damke,  133  Cal.  433; 
65  Pac.  888.  Where  there  is  but  one  judg- 
ment in  the  case,  a  slight  mistake,  as  of 
the  date  of  entry,  will  not  invalidate  the 
notice  of  appeal.  Swasey  v.  Adair,  83  Cal. 
136;  23  Pac.  284.  A  notice  of  appeal,  suffi- 
cient in  other  respects,  will  not  be  held  in- 
suflScient,  merely  because  it  incorrectly 
states  the  date  upon  which  the  judgment 
and  order  appealed  from  were  entered,  if 
the  record  on  appeal  shows  that  there  has 
been  but  one  judgment  or  order  of  the 
kind  appealed  from  entered  in  the  cause. 
Weyl  V.  Sonoma  Valley  R.  R.  Co..  69  Cal. 
202;  10  Pac.  510.  A  mistake  in  the  notice 
of  appeal,  as  to  the  date  of  the  order  ap- 
pealed from,  does  not  invalidate  the  ap- 
peal, if  the  description  of  the  order  is 
sufficient  to  identify  it.  Foss  v.  Johnstone, 
158  Cal.  119;  110  Pac.  294.  It  is  not  re- 
quired that  the  notice  of  appeal  shall  be 
addressed  to  the  persons  who  constitute 
the  adverse  party;  and  where  the  notice 
is  addressed  to  the  attorneys  on  whom  it  is 
properly  to  be  served  under  the  statute, 
this  is  sufficient:  a  mere  mistake  of  the 
scrivener,  which  could  not  possibly  mislead 
anybody,  will  be  disregarded  on  appeal. 
Estate  of  Nelson,  128  Cal.  242;  60  Pac.  772. 
A  notice  of  appeal,  addressed  to  one  party, 
is  not  notice  to  another.  Estate  of  Pemler- 
gast,  143  Cal.  135;  76  Pac.  962.  One  no- 
tice is  sufficient  for  taking  an  appeal  from 
a  judgment,  and  from  an  order  subsequent 
to  a  judgment.  People  v.  Center,  61  Cal. 
191.  The  inclusion  of  an  additional  notice 
of  appeal  from  the  judgment,  in  the  notice 
of   appeal   from   an   order   denying  a  new 


§940 


APPEALS   IN    GENERAL. 


1036 


trial,  has  no  effect,  either  as  an  original 
appeal  or  to  impair  the  previous  appeal 
pending.  Woodside  v.  Hewel,  107  Cal.  141; 
40  Pac.  103.  A  notice  of  appeal  from  an 
order  directing  the  payment  of  alimony 
and  counsel  fees  is  not  rendered  ineffectual 
because  a  notice  of  appeal  from  the  judg- 
ment is  embraced  in  the  same  paper,  nor 
because  the  appellant  has  inserted  in  the 
notice  a  statement  that  on  the  appeal  from 
the  judgment  he  would  ask  the  court  to  re- 
view and  set  aside  the  order  for  alimony: 
such  matter  is  mere  surplusage,  which  does 
no  injurv.  Sharon  v.  Sharon,  68  Cal.  326; 
9  Pac".  1S7. 

Construction  of  notice.  Where  a  notice 
of  appeal  stated  that  the  plaintiff  appealed 
from  an  order  overruling  and  denying  his 
motion  to  set  aside  a  judgment  or  order 
of  nonsuit,  and  dissolving  a  preliminary 
injunction,  and  for  granting  a  rehearing 
therein,  the  word  "rehearing"  is  used  in 
the  sense  of  "new  trial,"  and  the  appeal 
referred  to  in  the  notice  is  from  the  order 
denying  a  new  trial.  Kimple  v.  Conway,  69 
Cal.'  71;  10  Pac.  189.  A  notice  of  appeal 
from  an  order  denying  a  motion  for  a 
new  trial,  and  from  an  order  denying  a 
motion  to  set  aside  the  decision  and  judg- 
ment, describing  the  judgment,  and  con- 
cluding with  the  words  "and  from  the 
whole  thereof,"  does  not  include  a  notice 
of  appeal  from  the  judgment:  the  conclud- 
ing words  refer  to  the  orders  previously 
mentioned,  and  indicate  that  the  appeal  is 
from  the  whole,  and  not  from  a  part,  of 
said  orders.  Meley  v.  Boulon,  104  Cal.  262; 
37  Pac.  931. 

Joint  notice.  A  plaintiff  and  a  defend- 
ant, who  are  joint  defendants  in  a  cross- 
complaint,  may  give  joint  notice  of  appeal. 
Downing  v.  Eademaeher,  136  Cal.  673;  69 
Pac.  415. 

Necessity  for  filing  notice.  The  filing  of 
the  notice  of  appeal,  and  the  service  of  a 
copy  thereof  upon  the  opposite  party  or  his 
attorney,  are  indispensable,  in  order  to 
give  the  appellate  court  jurisdiction.  Bonds 
V.  Hickman.  29  Cal.  460. 

County  where  notice  should  be  filed.  The 
notice  of  ap]ieal  from  an  order  changing 
the  place  of  trial  to  another  county,  and 
the  undertaking  on  appeal,  must  each  be 
filed  in  the  office  of  the  clerk  of  the  county 
in  which  the  order  was  made:  if  filed  with 
the  clerk  of  the  county  to  which  the  trans- 
fer was  made,  the  appeal  is  ineffectual,  and 
will  be  dismissed.  Mansfield  v.  O'Keefe, 
133Cal.  3G2;  63  Pac.  825. 

Time  of  filing.  As  this  section  now 
stands,  the  rule  previously  in  force  re- 
specting appeals  has  been  changed,  and  the 
notice  of  appeal  may  now  be  filed  with  the 
clerk  on  a  day  subsequent  to  that  upon 
W'hich  the  service  is  made,  and  the  under- 
taking may  be  filed  before  the  notice  of 
appeal  is  filed,  llewes  v.  Carville  Mfg.  Co., 
62   Cal.   516;    Robinson   v.   Temi)lar  Lodge, 


114  Cal.  41;  45  Pac.  998;  and  see  Boyd  v. 
Burrel,  60  Cal.  280.  The  statute  does  not 
prescribe  any  particular  time  after  service 
of  the  notice  of  appeal  within  which  such 
notice  must  be  filed:  it  may  be  filed  at 
any  time  before  the  expiration  of  the  time 
for  appeal.  San  Francisco  etc.  Collection 
Co.  V.  State,  141  Cal.  354;  74  Pac.  1047; 
and  see  Galloway  v.  Eouse,  63  Cal.  280; 
Noonan  v.  Nunan,  76  Cal.  44;  18  Pac. 
98;  Robinson  v.  Templar  Lodge,  114  Cal. 
41;  45  Pac.  998.  Where  the  notice  of  ap- 
peal and  the  undertaking  were  filed  within 
three  days  after  the  service  of  the  notice, 
the  appeal  is  effectual.  Galloway  v.  Rouse, 
63  Cal.  280.  W^here  the  notice  of  appeal 
was  not  filed  until  eleven  days  after  the« 
service  thereof,  but  was  filed  within  six 
months  after  the  entry  of  the  judgment,  it 
is  not  too  late.  San  Francisco  etc.  Collec- 
tion Co.  v.  State,  141  Cal.  354;  74  Pac. 
1047. 

Effect  of  filing.  The  filing  of  a  notice 
of  appeal,  under  either  this  section  or 
941b,  post,  confers  jurisdiction  of  the  ap- 
peal, which  is  not  ousted  by  the  method 
of  preparing  or  filing  the  transcript:  that 
may  be  gotten  up  and  filed  under  either 
method,  as  the  appellant  may  choose.  Lang 
V.  Lilley  &  Thurston  Co.,  161  Cal.  295;  119 
Pac.  100. 

Waiver  of  filing.'  A  waiver  of  the  filing 
of  the  notice  of  appeal,  by  the  stipulation 
of  the  parties,  is  not  the  equivalent  of  the 
filing  of  the  notice:  consent,  though  it  may 
waive  error,  cannot  confer  jurisdiction. 
Bonds  v.  Hickman,  29  Cal.  460.  The  fail- 
ure to  serve  and  file  a  notice  of  appeal  can- 
not be  waived  after  the  time  for  appealing 
has  expired,  so  as  to  confer  jurisdiction  on 
the  appellate  court.  Niles  v.  Gonzalez,  152 
Cal.  90;  92  Pac.  74. 

Relief  from  stipulation  admitting  filing. 
Where  an  attorney  stipulates,  under  a  mis- 
take of  fact,  that  a  notice  of  appeal  has 
been  filed,  when  no  notice  has  in  fact  been 
filed,  the  court  below,  upon  a  proper  appli- 
cation, may  relieve  him  from  it,  but  the 
ap]iel]ate  court  cannot.  Bonds  v.  Hickman, 
29  Cal.  460. 

Time  of  serving  notice.  The  clause  in 
this  section,  "The  order  of  service  is  im- 
material," is  the  equivalent  of  "Whether 
the  service  precede  or  follow  the  filing  of 
the  notice,  is  immaterial."  Boyd  v.  Burrel. 
60  Cal.  2S0.  The  serving  of  the  notice  of 
appeal  may  precede  the  filing.  San  Fran- 
cisco etc.  Collection  Co.  v.  State,  141  Cal. 
354;  74  Pac.  1047;  Hewes  v.  Carville  Mfg. 
Co.,  62  Cal.  516;  but  see  Aram  v.  Shallen- 
berger,  42  Cal.  275.  Service  of  a  notice 
of  appeal  by  mail  is  complete  at  the  time 
of  the  deposit  of  a  copv  thereof  in  the  post- 
office.  Brown  v.  Green,  65  Cal.  221;  38  Pac. 
811. 

Service  upon  adverse  party.  The  ad- 
verse party  must  be  served  with  the  notice 
of  appeal.    Brown  v.  Green,  65  Cal.  221;  3 


1037 


ADVERSE  PARTIES,   WHO  ARE. 


940 


Pac.  811;  Lancaster  v.  Maxwell,  UiM  Cal. 
67;  36  Pac.  i)ol;  Estate  of  Walkeriey,  5 
Cal.  Unrep.  5;  40  Pac.  i:i;  .lohnson  v. 
Pheiiix  Ins.  Co.,  152  Cal.  196;  92  Pac  1S2. 
A  notice  of  api)eal  must  be  served,  within 
the  time  i)rcscribed,  ui)on  all  adverse  par- 
ties, that  is,  upon  those  who  are  interested 
in  the  judgment,  and  who  would  be  affected 
by  its  reversal.  Herriman  v.  Menzies,  llo 
Cal.  16;  56  Am.  St.  Kep.  82;  35  L.  K.  A. 
33 S;  44  Pac.  660;  Estate  of  Pen.iergast.  143 
Cal.  135;  76  Pac.  962;  Estate  of  Young, 
149  Cal.  173;  85  Pac.  145;  Mannix  v.  Trvou, 
152  Cal.  31;  91  Pac.  983;  Niles  v.  Gonzalez, 
152  Cal.  90;  92  Pac.  74;  Bell  v.  San  Fran- 
cisco Sav.  Union,  153  Cal.  64;  94  Pac.  225; 
Ford  V.  Cannon,  5  Cal.  App.  185;  89  Pac. 
1071.  The  adverse  party  upon  whom  the 
notice  of  appeal  is  to  be  served  is  the  i)arty 
■who  appears  by  the  record  to  be  adverse; 
and  the  record  to  be  considered  for  that 
purpose  is  the  record  of  the  proceedings  in 
which  the  appeal  is  taken.  McKenzie  v. 
Hill.  9  Cal.  App.  78;  98  Pac.  55;  Ford  v. 
Cannon,  5  Cal.  App.  185;  89  Pac.  1071.  In 
proceedings  under  the  McEnerney  Act,  be- 
fore the  adoption  of  the  alternative  method 
of  taking  appeals,  a  notice  of  appeal  was 
required  to  be  served  only  on  the  parties 
who  appeared  from  the  record  to  be  ad- 
verse. Potrero  Nuevo  Land  Co.  v.  All 
Persons,  155  Cal.  371;  101  Pac.  12.  The 
notice  of  appeal  from  an  order  denying 
a  motion  for  a  new  trial  need  be  served 
only  on  the  parties  who  were  adverse  to 
the  motion  in  the  court  below.  Niles  v. 
Gonzalez,  155  Cal.  359;  100  Pac.  lOSO;  152 
Cal.  90;  92  Pae.  74.  A  notice  of  appeal 
from  an  order  denying  a  motion  for  a  new 
trial  need  be  served  only  on  the  parties 
to  the  motion  in  the  court  below.  Watson 
V.  Sutro,  77  Cal.  609;  20  Pac.  88.  Service 
upon  an  adverse  party  personally,  when  he 
has  appeared  by  attorney,  is  insufficient. 
.Tones  v.  McGarvey,  6  Cal.  Unrep.  277;  56 
Pac.  896. 

Adverse  parties,  who  are.  By  the  term 
"adverse  party"  is  meant  every  party 
whose  interest  in  the  subject-matter  of 
the  appeal  is  adverse  to  or  will  be  affected 
by  the  reversal  or  modification  of  the  judg- 
ment or  order  from  which  the  appeal  is 
taken,  irrespective  of  the  question  whether 
he  appears  upon  the  record  in  the  attitude 
of  plaintiff  or  defendant,  or  intervener. 
Senter  v.  Bernal,  38  Cal.  637;  Eandall  v. 
Hunter,  69  Cal.  80;  10  Pac.  130;  Milliken 
V.  Houghton,  75  Cal.  539;  17  Pac.  641; 
Harper  v.  Hildreth,  99  Cal.  265;  33  Pac. 
1103;  Lancaster  v.  Maxwell.  103  Cal.  67; 
36  Pac.  951;  Bullock  v.  Taylor,  112  Cal. 
147;  44  Pac.  457;  United  States  v.  Vrooks, 
116  Cal.  43;  47  Pac.  870;  Kennev  v.  Parks, 
120  Cal.  22;  52  Pac.  40;  Vincent  v.  Collins, 
122  Cal.  387;  55  Pac.  129;  Mohr  v.  Bvrne, 
132  Cal.  250;  64  Pac.  257;  Johnson  v.  Phenix 
Ins.  Co.,  146  Cal.  571;  80  Pac.  719;  Quist 
v.  Sandman,  154  Cal.  748;  99  Pac.  204;  Bell 


v.  San  Francisco  Sav.  Union,  153  Cal.  64; 
94  Pac.  225;  Niles  v.  Gonzalez,  152  Cal.  90; 
92  Pac.  74;  Mannix  v.  Tryon,  152  Cal, 
33;  91  Pac.  9S3;  .lackson  v.  Superior  Court, 
20  Cal.  App.  638;  129  Pac.  946;  Ford  v. 
Cannon,  5  Cal.  App.  1S5;  89  Pac.  1071.  An 
adverse  party  to  an  appeal  is  any  party 
whose  interest  in  relation  to  the  subject  of 
the  appeal  is  in  conflict  with  the  reversal 
of  the  order  or  decree  appealed  from,  or 
the  modification  sought  by  the  a[)pcal. 
Green  v.  Berge,  105  Cal.  52;  45  .\m.  St. 
Kep.  25;  38  Pac.  539.  Persons  sought  to  bo 
substituted  as  parties  defendant  are  ad- 
verse parties  on  an  ap[ieal  from  a  judgment 
by  default;  the  defendant  claiming  a  re- 
versal on  the  ground  that  the  refusal  to 
make  the  substitution  was  erroneous.  Toy 
V.  San  Francisco  etc.  R.  R.  Co.,  75  Cal.  542; 
17  Pac.  700.  A  mortgagor  and  his  co- 
defendant,  who  constructed  a  building  on 
the  mortgaged  premises,  are  adverse  par- 
ties to  an  appeal  by  the  mortgagee  from 
a  judgment  giving  mechanic's  lien  claim- 
ants priority  over  the  mortgage  lien,  where 
the  decree  of  foreclosure  provided  for  a 
deficiency  judgment:  in  such  case  the  lia- 
bility for  the  deficiency  judgment  might  be 
affected  by  a  reversal  of  the  judgment. 
Pacific  Mutual  Life  Ins.  Co.  v.  Fisher,  106 
Cal.  224;  39  Pac.  758.  Defaulting  defend- 
ants are  not  adverse  parties  to  other  de- 
fendants, w^here  there  is  no  joint  relation 
alleged  between  the  defendants,  and  the 
judgment  against  each  is  several  and  inde- 
jiendent.  Kenney  v.  Parks,  120  Cal.  22;  52 
Pac.  40.  In  an  action  on  a  promissory 
note,  alleged  to  have  been  executed  by  two 
defendants  as  partners,  one  of  whom  made 
default  and  trial  was  had  as  to  the  other, 
and  judgment  was  entered  against  the  one 
by  default  and  against  the  other  on  the 
verdict,  the  defendant  who  made  default 
is  not  an  adverse  party  to  the  appeal  of 
the  defendant  as  to  whom  trial  was  had. 
Randall  v.  Hunter,  69  Cal.  80;  10  Pac.  130, 
Defendants  who,  by  their  default,  have  ad- 
mitted that  their  claim  to  mortgaged  prem- 
ises was  inferior  to  that  of  the  plaintiff, 
are  not  adverse  parties  in  an  appeal  by 
the  mortgagor  from  a  judgment  in  favor 
of  the  plaintiff,  foreclosing  the  mortgage. 
Boob  V.  Hall,  107  Cal.  160;  40  Pac.  117. 
Defaulting  defendants,  in  an  action  to 
quiet  title,  are  not  adverse  parties  to  an- 
swering defendants,  where  the  reversal  of 
the  judgment  in  favor  of  the  plaintiff, 
quieting  his  title,  and  giving  him  the  right 
of  possession  to  the  lands  described,  as 
against  the  defaulting  defendants,  could 
not  injuriously  affect  their  interests,  on  the 
appeal  of  the  answering  defendants.  Ken- 
ney v.  Parks,  120  Cal.  22;  52  Pac.  40.  In 
an  action  to  recover  from  one  defendant 
the  amount  due  upon  a  note,  and  asking 
that  another  defendant  be  directed  to  pay 
the  said  judgment  out  of  certain  moneys 
owing  to  the  first  defendant,  such  first  de- 


§940 


APPEALS  IN    GENERAL. 


1033 


fendant  is  not  an  adverse  party  to  an 
appeal  taken  by  an  intervener  from  a  judg- 
ment directing  tbe  second  defendant  to 
pay  the  amount  of  the  judgment.  Mohr  v. 
Byrne,  132  Cal.  250;  64  Pac.  257.  On  ap- 
peal from  an  order  against  a  garnishee  in 
supplementary  proceedings,  the  judgment 
debtor,  if  he  was  not  a  participant,  is  not 
an  adverse  party  required  to  be  served 
with  notice  of  appeal.  McKenzie  v.  Hill, 
9  Cal.  App.  78;  98  Pac.  55.  A  contractor, 
who  cannot  be  injuriously  affected  by  an 
appeal  from  a  judgment  of  foreclosure,  is 
not  an  adverse  party  who  must  be  served 
with  notice  of  appeal.  Quist  v.  Sandman, 
154  Cal.  748;  99  Pac.  204.  The  phrase, 
"adverse  party,"  is  also  found  in  §§  650, 
659,  ante. 

Determination  as  to  who  are  adverse  par- 
ties. Whether  a  party  to  the  action  is  ad- 
verse to  the  appellant,  must  be  determined 
by  their  relative  positions  on  the  record 
and  the  averments  in  their  pleadings, 
rather  than  from  the  manner  in  which  they 
may  manifest  their  wishes  at  the  trial,  or 
from  any  presumption  to  be  drawn  from 
their  relation  to  each  other,  or  to  the  sub- 
ject-matter of  the  action,  in  matters  out- 
side of  the  action.  Harper  v.  Hildreth,  99 
Cal.  265;  33  Pac.  1103.  The  question  as 
to  who  are  adverse  parties  can  be  deter- 
mined only  from  the  record.  O'Eourke  v. 
Finch,  8  Cal.  App.  263;  96  Pac.  784.  An 
adverse  party  upon  whom  the  notice  of  ap- 
peal is  to  be  served  is  a  party  who  appears 
by  the  record  to  be  adverse;  and  the  rule 
that  the  notice  of  appeal  must  be  served 
upon  all  parties  that  would  be  affected  by 
a  reversal  of  the  judgment  appealed  from, 
is  to  be  construed  with  the  other  rule,  that 
only  the  record  can  be  examined  for  the 
purpose  of  determining  who  are  adverse 
parties.  Estate  of  Ryer,  110  Cal.  556;  42 
Pac.  1082.  The  record  to  be  considered  for 
the  purpose  of  determining  who  are  ad- 
verse parties  to  be  served  with  the  notice 
of  appeal,  is  the  record  of  the  proceedings 
in  which  the  appeal  is  taken.  Estate  of 
BuUard,  114  Cal.  462;  46  Pac.  297.  The 
record  upon  the  appeal  is  the  only  record 
that  can  be  examined  for  the  purpose  of 
ascertaining  who  are  adverse  parties  to 
be  served  with  the  notice  of  appeal.  Estate 
of  Bullard,  114  Cal.  462;  46  Pac.  297;  Ken- 
ney  v.  Parks,  120  Cal.  22;  52  Pac.  40; 
Mohr  V.  Byrne,  132  Cal.  250;  64  Pac.  257; 
and  see  Bullock  v.  Taylor,  112  Cal.  147;  44 
Pac.  457. 

Service  on  defendants.  Where  an  exe- 
cution, issued  against  all  the  parties  to  a 
judgment,  is  quashed  upon  the  motion  of 
a  part  of  them,  and  an  appeal  from  the 
order  is  taken  by  the  judgment  creditor, 
all  the  persons  against  whom  the  judgment 
was  rendered  are  adverse  parties,  and 
should  be  served  with  notice  of  the  appeal. 
Millikin  v.  Houghton,  75  Cal.  539;  17  Pac. 
641.     In   an   action   to   dissolve  a  partner- 


ship, and  to  determine  the  rights  of  the 
parties  to  certain  land  claimed  by  the  de- 
fendant partner,  where  other  defendants 
were  made  parties  because  of  their  claim 
of  an  interest  in  the  land,  the  defendant 
partner  is  an  adverse  party  to  an  appeal 
by  the  plaintiff  from  an  order  dismissing 
the  action  as  against  such  other  parties 
and  as  against  the  land,  and  he  must  be 
served  with  the  notice  of  appeal.  Harper 
V.  Hildreth,  99  Cal.  265;  33  Pac.  1103. 
Where  a  defendant  did  not  apjiear  in  the 
action,  but  was  properly  made  a  party 
thereto,  the  notice  of  appeal  must  be  served 
on  him,  as  an  adverse  party  interested 
therein.  Johnson  v.  Phenix  Ins.  Co.,  146 
Cal.  571;  80  Pac.  719.  Fictitious  defend- 
ants, who  were  not  served  with  process, 
and  who  did  not  appear,  need  not  be  served 
with  the  notice  of  appeal.  Benson  v.  Bunt- 
ing, 127  Cal.  532;  78  Am.  St.  Eep.  81;  59 
Pac.  991. 

Service  by  defendant  on  co-defendants. 
A  notice  of  appeal  by  one  of  several  co- 
defendants  should  be  served  not  onl}'  on 
the  plaintiff,  but  also  on  non-appealing  co- 
defendants:  they  have  an  interest  in  the 
judgment  to  be  affected  by  a  reversal.  Mil- 
likin V.  Houghton,  75  Cal.  539;  17  Pac.  641. 
Where  an  action  is  brought  by  a  county 
for  the  condemnation  of  a  strip  of  land  for 
a  highway,  across  lands  owned  by  the  re- 
spective defendants,  and  judgment  is  ren- 
dered for  the  plaintiff  as  prayed  for,  and 
one  of  the  defendants  apj>eals,  the  other 
defendants  are  adverse  i^arties,  and  should 
be  served  with  notice  of  the  appeal.  Butte 
County  V.  Boydstun,  68  Cal.  189;  8  Pac. 
835.  In  an  action  against  two  persons,  as 
partners,  to  have  a  deed  executed  by  one 
of  them  declared  a  mortgage  to  secure  a 
partnership  indebtedness,  in  which  the 
other  partner  was  not  served  with  sum- 
mons and  did  not  appear,  and  judgment 
was  had  between  the  parties,  the  absent 
partner  is  not  an  adverse  party  upon  whom 
the  notice  of  appeal  from  the  judgment 
must  be  served.  Merced  Bank  v.  Rosen- 
thal, 99  Cal.  39;  31  Pac.  849.  A  mortgagee, 
who,  refusing  to  be  a  co-plaintiff,  was  made 
a  co-defendant  with  an  insurance  company 
in  an  action  upon  the  policy  by  the  owner 
of  a  burned  building,  is  an  adverse  party 
to  the  appeal  by  the  insurance  company 
from  a  judgment  in  favor  of  the  owner  for 
the  full  amount  of  the  insurance,  out  of 
which  judgment  the  amount  due  to  the 
mortgagee  was  ordered  to  be  paid,  and 
such  mortgagee  must  be  served  with  the 
notice  of  apj^eal.  Johnson  v.  Phenix  Ins. 
Co.,  146  Cal.  571;  80  Pac.  719.  In  an  ac- 
tion for  breach  of  contract  alleged  to  have 
been  executed  by  the  defendants  as  part- 
ners, on  an  appeal  by  the  defendant  against 
whom  alone  a  recovery  was  had,  his  co- 
defendants,  as  to  whom  a  nonsuit  was 
granted,  and  to  which  he  excepted,  are 
adverse  parties,  and  must  be  served  with 


1039 


SERVICE  OF  NOTICE  OF  APPE.VL  MADE  ON  WHOM. 


§940 


the  notice  of  appeal  from  the  order  grant- 
ing the  nonsuit.  Bullock  v.  Tavlor,  11- 
Cal.  147;  44  I'ac.  457.  Defaultiiig  dofen.l- 
ants,  whose  interests  would  be  injuriously 
affected  by  the  apjical  of  other  defaulting 
defendants,  must  be  served  with  the  notice 
of  appeal.  Bowering  v.  Adams,  12(3  Cal. 
653;  59  Pac.  134.  A  co-defendant  who 
makes  default  is  not  an  adverse  party,  and 
notice  of  the  appeal  need  not  be  served  on 
him.  Randall  v.  Hunter,  G9  Cal.  80;  10  Pac. 
130;  McKeanv  v.  Black,  46  Pac.  3S1; 
French  v.  McCarthy,  110  Cal.  12;  42  Pac. 
302.  Defaulting  defendants  are  not  ad- 
verse parties  to  other  defendants,  where 
there  is  no  joint  relation  alleged  between 
them,  and  a  judi;ment  against  each  is  sev- 
eral and  independent;  a  judgment  under 
the  McEnerney  Act  must  be  several  and  in- 
dependent. Potrcro  Nuevo  Land  Co.  v.  All 
Persons,  155  Cal.  371;  101  Pac.  12.  A 
co-defendant,  in  whose  favor  judgment  has 
been  rendered  against  the  plaintiff  for 
costs,  is  not  an  adverse  party  who  must  be 
served  with  the  notice  of  appeal  by  the 
other  defendant,  on  judgment  against  him 
in  favor  of  the  plaintiff.  Green  v.  Berge, 
105  Cal.  52;  45  Am.  St.  Rep.  25;  38  Pac. 
539.  Where,  in  an  action  against  several 
defendants,  the  plaintiff  filed  a  dismissal 
before  the  service  of  summons  upon  or  ap- 
pearance by  any  of  the  defendants,  and 
afterwards  two  of  the  defendants  filcil  an 
answer  and  cross-complaint,  asking  affirma- 
tive relief,  and  thereafter,  upon  motion 
of  the  plaintiff,  the  action  was  dismissed 
by  the  court,  from  which  the  cross-com- 
plainants appealed,  the  other  defendants, 
not  appealing,  are  not  adverse  parties,  and 
notice  of  appeal  need  not  be  served  upon 
them.  Hinkel  v.  Donohue,  88  Cal.  597;  26 
Pac.  374.  Co-defendants,  not  served  with 
summons,  and  not  appearing  in  the  action, 
need  not  be  served  with  the  notice  of  ap- 
peal. Merced  Bank  v.  Rosenthal,  99  Cal. 
39;  31  Pac.  849;  Clarke  v.  Mohr,  125  Cal. 
540;  58  Pac.  176;  Peck  v.  Agnew,  126 
Cal.  607;  59  Pac.  125.  Where  an  action 
was  brought  against  .two  defendants,  upon 
a  contract  of  guaranty  executed  by  them 
to  the  plaintiff,  and  was  tried  solely  upon 
issues  presented  by  the  separate  answer  of 
one  of  them,  and  the  record  does  not  show 
that  the  co-defendant  answered  the  com- 
plaint, it  is  not  necessary,  upon  appeal 
from  the  judgment,  to  serve  the  notice  of 
appeal  upon  such  co-defendant.  French  v. 
McCarthy,  110  Cal.  12;  42  Pac.  302.  The 
notice  of  appeal  need  not  be  served  on 
a  co-defendant  who  was  not  a  party  to 
the  motion  for  a  new  trial.  Barnhart  v. 
Edwards,  111  Cal.  428;  44  Pac.  160;  John- 
son V.  Phenix  Ins.  Co.,  146  Cal.  571;  SO 
Pac.  719. 

Service  on  intervener.  When,  after  the 
foreclosure  of  a  mortgage,  and  a  sale  under 
the  decree,  the  decree  is  vacated,  on  mo- 
tion of  the  plaintiff,  to  allow  a  grantee  of 


the  mortgagor  to  be  made  a  party  defend- 
ant, and  the  purcliaser  at  the  foreclosure 
sale  also  intervenes  by  leave  of  the  court, 
the  defendant,  upon  ajipealing  from  the 
order  vacating  the  decree,  must  serve  the 
notice  of  appeal  upon  the  intervener.  Miller 
v.  Richanls,  S3  Cal.  563;  23  Pac.  936. 

Service  on  substituted  party.  The  ser- 
vice of  notice  of  api>eal  upon  i)arties  sub- 
stituted as  respondents,  after  the  lapse  of 
time  for  ap])eal,  can  have  no  effect;  and  an 
attempted  second  apjieal,  after  the  expira- 
tion of  such  time,  can  be  of  no  avail. 
Estate  of  Turner.  139  Cal.  85;  72  Pac.  718. 

Service  on  attorney.  The  notice  of  ajjpeal 
is  not  a  jirucess  re(iuiring  personal  service 
for  the  purpose  of  bringing  the  respondent 
before  the  court,  but  is  the  declaration  of 
an  intention  to  take  further  proceedings 
in  a  pending  cause,  and  the  statute  re- 
quires it  to  be  in  writing,  and  to  be  served 
upon  the  attorney  of  the  party,  instead  of 
on  the  party  himself.  Estate  of  Nelson, 
128  Cal.  242^;  60  Pac.  772.  The  service  of 
the  notice  of  ai)peal  must  be  made  upon 
the  attorney  of  the  adverse  part}',  where 
such  party  has  an  attorney.  Abrahms  v. 
Stokes,  39  Cal.  150;  Whittle  v.  Renner,  55 
Cal.  395;  Jones  v.  McGarvev,  6  Cal.  Unrep. 
277;  56  Pac.  896;  Estate  -of  Nelson,  128 
Cal.  242;  60  Pac.  772.  The  attorney  re- 
ferred to  in  this  section  is  the  attorney  of 
record:  a  notice  of  ajipeal  served  upon  any 
other  is  void.  Whittle  v.  Renner,  55  Cal. 
395;  Prescott  v.  Salthouse,  53  Cal.  221; 
Ellis  v.  Bennett,  2  Cal.  Unrep.  302;  3  Pac. 
801;  Harrington  v.  Bolte,  8  Pac.  184. 
Where  the  notice  of  appeal  was  addressed 
only  to  heirs  who  were  petitioners  for  a 
decree  of  distribution,  and  their  attorney 
admits  service  as  such,  the  fact  that  he  is 
also  attorney  for  all  the  other  heirs  cannot 
enlarge  the  notice  so  as  to  make  them  also 
parties  to  the  appeal.  Estate  of  Pender- 
gast,  143  Cal.  135;  76  Pac.  962.  The  notice 
of  appeal  from  an  order  refusing  to  set 
aside  a  default  is  properl}'  serveil  upon  the 
defendant's  attorney,  in  perfecting  the  ap- 
peal, if  his  appearance  in  the  action  was 
general,  and  not  merely  special.  Thomp- 
son V.  Alford,  128  Cal.  227;  60  Pac.  6S6. 
An  affidavit  stating  that  service  of  the 
notice  of  apjical  was  made  by  mail,  and 
that  the  respondent's  attorney  had  ad- 
mitted receipt  of  the  notice,  is  sufficient 
proof  of  service,  as  against  a  mere  infer- 
ence, in  an  affidavit  of  the  respondent's 
attorney,  that  he  had  not  received  such 
notice.  Brandenstein  v.  Johnson,  134  Cal. 
102;  66  Pac.  86.  Upon  the  death  of  a 
party  to  an  action,  the  authority  of  his 
attorney  to  represent  him  ceases,  and  no 
notice  of  ai>peal  can  thereafter  be  effect- 
ivelv  served  upon  his  attorney  (Pedler 
V.  Stroud,  116  Cal.  461;  48  Pac.  3*71;  Estate 
of  Turner,  139  Cal.  85;  72  Pac.  718);  an<l 
his  acknowledgment  of  service  of  a  notice 
of  appeal  cannot  bind  the  representatives 


APPEALS  IN    GENERAL. 


1040 


of  the  deceased,  subsequently  appointed; 
and  if  such  representatives  are  substituted 
in  the  supreme  court,  the  appeal  will  be 
dismissed  as  to  them,  if  nothing  further 
appears  to  estop  them  from  moving  to  dis- 
miss. Moyle  V.  Landers,  78  Cal.  99;  12  Am. 
St.  Eep.  22;  20  Pac.  241.  In  partition  pro- 
ceedings, the  notice  of  appeal  may  be 
served  upon  the  attorney  of  record  of  an- 
other party,  notwithstanding  the  death  of 
such  party  prior  to  the  appeal;  and  such 
notice  may  be  served  upon  the  original  at- 
torney of  record,  where  there  has  been  no 
substitution,  notwithstanding  another  at- 
torney may  have  appeared  and  signed  an 
amended  pleading  for  such  party.  Lacoste 
V.  Eastland,  117  Cal.  673;  49  Pac.  1040. 

Service  on  representative  of  deceased 
party.  Upon  appeal  from  an  order  deny- 
ing a  new  trial,  the  representative  of  an 
adverse  party  who  was  served  with  notice 
of  intention  but  died  pending  the  motion, 
must  be  served  with  the  notice  of  appeal. 
Bell  V.  San  Francisco  Sav.  Union,  153  Cal. 
64;  94  Pac.  225. 

Foreclosure  of  mortgage,  service  on 
whom.  The  administrator  of  a  deceased 
mortgagor,  who  is  required  by  the  judg- 
ment foreclosing  the  mortgage  to  pay  any 
deficiency  over  •  the  amount  derived  from 
the  sale  of  the  mortgaged  premises,  and 
to  whom  the  claim  had  been  presented,  is 
an  adverse  party,  and  must,  on  appeal 
from  the  judgment  of  foreclosure  by  the 
purchaser  of  the  mortgaged  premises,  be 
served  with  notice  of  appeal.  Barnhart  v. 
Edwards,  111  Cal.  428;  44  Pac.  160.  Upon 
an  appeal  by  an  insolvent  mortgagor,  from 
an  order  directing  the  sale  of  the  mort- 
gaged premises  in  one  parcel,  and  from  an 
order  refusing  to  set  aside  the  sale  and  to 
order  the  land  resold  in  two  parcels,  the 
assignee  in  insolvency  is  au  adverse  party 
who  must  be  served  with  notice  of  appeal. 
Vincent  v.  Collins,  122  Cal.  387;  55  Pac. 
129. 

Foreclosure  of  mechanic's  lien,  service 
on  whom.  In  an  action  to  foreclose  me- 
chanics' liens,  where  judgment  was  ren- 
dered for  the  sale  of  the  property,  and  a 
judgment  for  any  deficiency  was  directed 
to  be  docketed  against  the  contractor,  on 
appeal  from  the  judgment  the  contractor 
is  an  adverse  party  who  must  be  served 
with  the  notice  of  appeal.  Lancaster  v. 
Maxwell,  103  Cal.  67;  36  Pac.  951.  A  me- 
chanic's lien  claimant,  in  mortgage  fore- 
closure proceedings,  whose  lien  is  directed 
to  be  paid  out  of  the  proceeds  of  the  sale 
after  the  satisfaction  of  the  plaintiff's 
mortgage,  is  an  adverse  party  who  must  be 
served  with  the  notice  of  appeal.  Hibernia 
Sav.  &  L.  Soc.  v.  Lewis,  111  Cal.  519;  44 
Pac.  175. 

Consolidated  actions,  service  on  success- 
ful party.  A  stipulation  in  an  action  which 
liad  been  consolidated  with  another,  that 
the  pleadings  in  such  consolidated  action 


shall  be  omitted  in  the  transcript  on  ap- 
peal, and  that  the  action  shall  be  deter- 
mined by  the  decision  on  the  appeal,  is  an 
appearance  to  the  appeal,  rendering  ser- 
vice of  the  notice  of  appeal  on  the  suc- 
cessful party  in  the  consolidated  action 
unnecessary.  Valley  Lumber  Co.  v.  Struck, 
146  Cal.  266;  SO  Cal.  405. 

Proceedings  supplementary  to  execution, 
service. on  debtor.  In  proceedings  supple- 
mentary to  execution,  it  is  not  necessary 
to  serve  the  judgment  debtor  with  notice 
of  appeal:  he  is  not  an  adverse  party.  Mc- 
Kenzie  v.  Hill,  9  Cal.  App.  78;  98  Pac.  55. 

Insolvency  proceedings,  service  on  whom. 
Upon  an  appeal  by  petitioning  creditors 
from  an  order  dismissing  a  proceeding  in 
insolvency  against  a  foreign  corporation 
for  want  of  jurisdiction,  though  the  cor- 
poration made  default,  and  the  controversy 
is  between  the  petitioning  creditors  and 
the  attaching  creditors  of  the  corporation, 
who  intervened  to  prevent  an  adjudication 
of  insolvency  against  the  corporation,  the 
notice  of  appeal  must  be  served  upon  the 
corporation  as  well  as  upon  the  attaching 
creditors,  since  the  judgment  was  in  favor 
of  the  corporation,  and  a  reversal  would 
affect  its  rights.  In  re  Castle  Dome  Min- 
ing .etc.  Co.,  79  Cal.  246;  21  Pac.  746. 
Upon  an  appeal  by  a  creditor  from  an  ad- 
judication of  insolvenc}'  upon  the  voluntary 
petition  of  the  debtor,  the  notice  of  appeal 
need  only  be  served  upon  the  insolvent 
debtor,  and  is  not  required  to  be  served 
upon  the  receiver,  nor  upon  the  other  credi- 
tors, who  had  not  filed  proof  of  their 
claims  when  the  appeal  was  taken.  In  re 
Chope,  112  Cal.  630;  44  Pac.  1066;  and  see 
Chinette  v.  Conklin,  105  Cal.  465;  38  Pac. 
1107. 

Probate  proceedings,  service  on  whom. 
Where  the  daughter  of  an  alleged  iueom- 
peteut  person  petitions  to  be  appointed 
guardian,  but,  upon  the  hearing,  the  court, 
by  her  consent,  appoints  other  persons, 
upon  an  appeal  by  the  alleged  incompetent 
such  other  persons  are  the  only  persons- 
to  be  served  with  the  notice  of  appeal,  the 
petitioner,  by  her  consent  to  their  appoint- 
ment, ceasing  to  be  a  party.  Estate  of 
Sullivan,  143  Cal.  462;  77  Pac.  153.  Where 
all  the  parties  appearing  at  the  contest 
of  the  probate  of  a  will  are  served  with 
the  notice  of  appeal  from  the  order  ad- 
mitting the  will  to  probate,  this  is  suffi- 
cient to  give  the  court  jurisdiction  of  the 
appeal.  Estate  of  Scott,  124  Cal.  671;  57 
Pac.  654.  A  claimant  against  an  estate^ 
whose  claim  is  contested  by  the  appellant^ 
and  who  was  not  a  party  to  the  proceed- 
ings in  the  trial  court,  need  not  be  served 
with  notice  of  appeal  from  the  settlement 
of  the  account  allowing  such  claim.  Estate 
of  Bullard,  114  Cal.  462;  46  Pac.  297.  Lega- 
tees and  devisees  under  a  will  are  adverse 
parties  who  must  be  served  with  the  notice 
of  appeal  from  an  order  admitting  the  will 


1041 


WAIVER  AND  ADMLSSION  OF  SERVICE — P^MLUKE  TO   SERVE. 


§940 


to  probate.  Estate  of  Scott,  124  C'al.  671; 
57  Pac.  G.54.  Upon  ai>i(eal  from  an  order 
confirmiufj  an  executor's  sale,  the  pur- 
chaser of  property  at  such  sale  is  an  ad- 
verse party  to  be  served  with  the  notice 
of  appcal/Estate  of  Bell,  12.",  Cal.  539;  5S 
Pac.  153.  Persons  in  wliose  favor  an  order 
for  the  ]>aynient  of  a  dividend  is  made  <lo 
not  thereby  become  parties  to  the  proceed- 
ing for  the  settlement  of  the  account  of  an 
administrator,  wliere  they  do  not  make  any 
contest  or  objection  to  the  account,  and 
need  not  be  served  with  the  notice  of  ap- 
peal from  such  order.  Estate  of  McDougald, 
143  Cal.  47G;  77  Pac.  443. 

Waiver  of  service.  A  mere  waiver  of 
service  of  the  notice  of  appeal  by  an  ad- 
verse i)arty  cannot  give  the  aiijtellate  court 
jurisdiction  of  the  appeal,  where  the  notice 
was  not  addressed  to  such  party,  and  there 
was  no  appearance  entered  by  him  either 
in  person  or  by  attorney.  Hibernia  Sav.  & 
L.  Soc.  v.  Lewis,  111  Cal.  519;  44  Pac.  175. 
Notice  of  appeal  may  be  waived  by  ap- 
pearance, or  bv  stipulation.  Burnett  v. 
Piercy,  149  Cal."l78;  86  Pac.  603. 

Admission  of  service.  An  admission  of 
Service  of  a  notice  of  appeal,  limited  to  one 
or  more  persons,  does  not  bind  those  whose 
names  are  omitted  from  such  admission; 
and  a  stipulation  that  "the  appeal  was  duly 
perfected"  is  the  admission  of  the  due 
service  of  a  properly  addressed  notice  of 
appeal  upon  all  the  parties  signing  the 
stipulation.  Burnett  v.  Piercv,  149  Cal. 
182;  86  Pac.  603. 

Duplicate  notices  and  undertakings. 
Duplicate  notices  of  appeal  from  the  same 
judgment  or  order,  given  in  time,  and  dupli- 
cate undertakings  not  designating  either 
of  the  notices,  also  given  in  time,  consti- 
tute, in  substance,  but  one  appeal.  Estate 
of  Sutro,  152  Cal.  249;  92  Pac.  486;  92  Pac. 
1027. 

Effect  of  failure  to  serve  notice.  A  fail- 
ure either  to  file  or  to  serve  a  notice  of  ap- 
peal within  the  prescribed  time  is  fatal  to 
the  taking  of  the  appeal.  Davev  v.  Mulrov, 
7  Cal.  App.  1;  93  Pac.  297.  Where  an  ad- 
verse party  was  not  served  with  the  notice 
of  appeal,  the  appellate  court  has  no  juris- 
diction to  hear  the  appeal  as  between  the 
other  parties.  Estate  of  Scott,  124  Cal. 
671;  57  Pac.  654.  Where  a  decree  may  be 
modified  without  in  any  manner  affecting  a 
co-defendant  of  the  appellant,  failure  to 
serve  such  co-defendant  with  the  notice  of 
appeal  does  not  render  the  appeal  defective. 
Latham  v.  Los  Angeles,  83  Cal.  564;  23  Pac. 
1116. 

Dismissal  for  failure  to  serve.  The  merits 
of  the  case  will  not  be  gone  into,  on  a  mo- 
tion to  dismiss  the  appeal,  for  the  purpose 
of  determining  whether  a  decision  of  the 
appeal  would  necessarily  affect  the  inter- 
ests of  a  co-defendant  of  the  appellant, 
who  was  not  served  with  the  notice  of  ap- 
peal. Latham  v.  Los  Angeles,  83  Cal.  564; 
1  Fair.— 66 


23  Pac.  1116.  The  failure  to  serve  the  no- 
tice of  appeal  upon  one  alleged  to  be  an 
adverse  i)arty  does  not  justify  the  dis- 
missal of  the  ajipeal,  where  the  determina- 
tion of  the  motion  to  dismiss  involves  an 
examination  of  the  entire  record,  and  inci- 
dentally of  the  merits  of  the  api)eal,  and 
the  motion  was  not  made  until  after  the 
aj'pidlant  had  filed  his  points  and  authori- 
ties upon  the  apjieal.  Hibernia  Sav.  &  L. 
Soc.  V.  Behnke,  118  Cal.  49S;  50  I'ac.  666. 
A  motion  for  the  dismissal  of  an  a[)peal.  on 
the  ground  that  the  notice  of  ajipeal  had 
not  been  served  on  all  the  adverse  j)arties, 
is  not  precluded  by  the  fact  that  the  case 
had  been  previously  submitted  to  the  court 
for  decision.  Pacific  Mutual  Life  Ins.  Co. 
V.  Fisher,  106  Cal.  224;  .39  Pac.  75S.  Where, 
in  an  action  to  enforce  a  street  assessment, 
judgment  was  rendered  against  several  de- 
fondants,  if  the  effect  of  an  appeal  from 
the  judgment  is  to  establish  that  there 
was,  in  fact,  no  lien  upon  which  the  judg- 
ment could  be  rendered,  a  reversal  of  the 
judgment  will  not  injuriously  affect  the 
other  defendants,  and  therefore  an  appeal 
will  not  be  dismissed  for  a  failure  to  serve 
them  with  the  notice  of  appeal.  Warren  v. 
Ferguson,  lOS  Cal.  535;  41  Pac.  417.  An 
appeal  from  an  order  settling  the  account 
of  an  administrator,  and  from  the  decree 
of  distribution,  will  not  be  dismissed  for 
failure  to  serve  the  notice  of  ajijieal  on  one 
of  the  distributees,  where  the  appeal  from 
the  order  settling  the  account  was  served 
on  the  executor,  as  the  reversal  of  such 
order  would  necessarily  affect  the  decree 
of  distribution.  Estate  of  Delaney,  110  C'al. 
563;  42  Pac.  981.  Where,  upon  the  ques- 
tion of  the  service  of  the  notice  of  appeal, 
before  or  after  the  filing  of  the  undertak- 
ing, the  affidavits  of  the  parties  squarely 
contradict  one  another,  a  motion  to  dismiss 
the  ajqieal  will  not  be  granted.  Coonan  v. 
Loewenthal,  122  Cal.  72;  54  Pac  388.  A 
motion  to  dismiss  an  appeal  may  be  made 
by  persons  not  parties  to  the  record,  upon 
whom  the  notice  of  appeal  should  have 
been  served.  Bullock  v.  Taylor,  112  Cal. 
147;  44  Pac.  457. 

Necessity  for  undertaking  or  deposit.  Au 
appeal  is  not  iiorfected,  unless  an  under- 
taking is  filcil  or  a  ile]>osit  made  within  the 
]irescribed  time.  Elliott  v.  Chapman,  15 
Cal.  383;  Shaw  v.  Eandall,  15  Cal.  384; 
McAulay  v.  Tahoe  Ice  Co.,  3  Cal.  App.  642; 
S6  Pac.  912.  The  filing  of  the  undertaking 
within  the  time  fixed  is  essential  to  juris- 
diction. Continental  Building  etc.  Ass'n  v. 
Beaver,  6  Cal.  App.  116;  91  Pac.  666;  Aram 
V.  Shallenberger,  42  Cal.  275. 

Necessity  and  essentials  of  undertaking. 
Sec  note  jiost.  S  !'41. 

Undertaking  not  necessary  under  new 
method  of  appeal.     See  note  j'ost,  §  I'ilb. 

Undertaking  on  appeal  from  justice's 
court.     See  note  post,  §  97S. 


940 


APPEALS   IN    GENERAL. 


1042 


Kind  of  undertaking  required.  The  un- 
dertaking ou  appeal  which  must  be  filed 
within  five  days  after  service  of  the  notice 
of  appeal,  as  required  by  this  section,  is 
the  three-hundred-dollar  undertaking  men- 
tioned in  §  941,  pjost.  Hill  v.  Finnigan,  54 
Cal.  493;  and  see  Sehacht  v.  Odell,  52^  Cal. 
447.  The  undertaking  referred  to  in  this 
section,  and  that  in  §  941,  post,  are  obvi- 
ously the  same.  McAulay  v.  Tahoe  Ice  Co., 
3  Cal.  App.  642;  86  Fac.  912.  An  under- 
taking in  the  form  of  and  purporting  to  be 
an  undertaking  to  stay  execution,  as  pro- 
vided in  §  942,  post,  is  not  the  undertaking 
on  appeal  required  by  this  section  and 
§  941,  post.  Duffy  v.  Greenebaum,  72  Cal. 
157;  12  Pac.  74;  13  Pac.  323.  One  under- 
taking, in  the  sum  of  three  hundred  dol- 
lars, gives  to  the  supreme  court  jurisdiction 
of  an  appeal,  both  from  a  judgment  and 
from  an  order  denying  a  motion  for  a  new 
trial.  Buchner  v.  kalloy,  152  Cal.  484;  92 
Pac.  1029. 

Contents  of  undertaking.  Where  two 
notices  of  appeal  are  given,  and  one  under- 
taking is  filed,  which  does  not  designate 
the  particular  appeal  referred  to,  neither 
appeal  is  good  if  the  notices  are  not  iden- 
tical. Estate  of  Sutro,  152  Cal.  249;  92  Pac. 
486. 

Time  of  executing.  Where  the  undertak- 
ing was  executed  before  the  notice  of  ap- 
peal was  given,  the  undertaking  is  not 
thereby  rendered  fatally  defective.  Stack- 
pole  V.  Hermann,  126  Cal.  465;  58  Pac.  935. 
This  section  does  not  require  that  the  un- 
dertaking shall  not  be  signed  by  the  sure- 
ties until  after  the  appeal  is  taken,  nor 
limit  any  time  between  the  two  acts,  but 
merely  requires  that  it  shall  be  filed  within 
five  days  after  service  of  the  notice  of  ap- 
peal; and  it  is  not  effective  until  it  is  filed. 
Clarke  v.  Mohr,  125  Cal.  540;  58  Pac.  176. 

Time  of  filing.  Where  an  undertaking 
on  appeal  is  not  filed  within  five  days  after 
the  notice  of  appeal  is  served,  the  appeal  is 
ineffectual  for  any  purpose.  Buhman  v. 
Nickels,  1  Cal.  App.  266;  82  Pac.  85;  Aram 
V.  Shallenberger,  42  Cal.  275;  Eeay  v.  But- 
ler, 25  Pac.  685;  San  Francisco  etc.  Col- 
lection Co.  V.  State,  141  Cal.  354;  74  Pac. 
1047;  Clarke  v.  Mohr,  125  Cal.  540;  58  Pac. 
176.  Where  the  undertaking  on  appeal  was 
filed  before  the  notice  of  appeal,  but  within 
five  days  after  the  service  of  notice  of  ap- 
peal, the  appeal  is  well  taken.  Hewes  v. 
Carville,  62  Cal.  516.  An  undertaking  on 
appeal,  filed  before  service  of  the  notice 
of  appeal,  is  ineffectual  for  any  purpose. 
Aram  v.  Shallenberger,  42  Cal.  275;  Little 
V.  .Jacks,  68  Cal.  343;  8  Pac.  856.  Service 
of  the  notice  of  appeal  by  mail  is  com- 
plete at  the  time  of  the  deposit  of  a  copy 
thereof  in  the  post-office;  and  where  the 
undertaking  on  appeal  is  not  filed  within 
five  days  from  such  deposit,  the  appeal  is 
ineffectual.  Brown  v.  Green,  65  Cal.  221; 
38   Pac.   811.     Where   the  fifth   day  after 


service  of  the  notice  of  appeal  falls  upon 
a  Sunday,  the  appellant  has  the  whole  of 
the  following  day  in  which  to  file  the  un- 
dertaking on  appeal.  Kobinson  v.  Templar 
Lodge,  114  Cal.  41;  45  Pac.  998.  The  de- 
livery of  the  undertaking  upon  appeal  to 
a  deputy  clerk,  at  a  place  other  than  the 
clerk's  ofiice,  after  office  hours,  on  the  last 
day  for  filing,  which  he  then  marked  as 
filed  as  of  that  day,  but  which  did  not 
reach  the  clerk's  office  and  was  not  entered 
as  filed  until  the  following  day,  is  not  suffi- 
ciently filed  to  sustain  the  appeal.  Hoyt  v. 
Stark,  134  Cal.  178;  86  Am.  St.  Eep.  246; 
66  Pac.  223. 

Extension  of  time  for  filing.  The  time 
for  filing  an  undertaking  on  appeal,  as  lim- 
ited by  this  section,  may  be  extended  by 
the  court  or  judge,  under  §  1054,  post,  not 
exceeding  thirty  days.  Wadsworth  v.  Wads- 
worth,  74  Cal.  104;  15  Pac.  447;  Schloesser 
V.  Owen,  134  Cal.  546;  66  Pac.  726;  but  see 
Elliott  V.  Chapman,  15  Cal.  383,  a  decision 
rendered  before  the  amendment  to  §  530  of 
the  Practice  Act  (the  original  of  §  1054, 
post).  An  order  extending  the  time  within 
which  to  file  an  undertaking  on  appeal  is 
ineffectual,  unless  the  same  is  filed  in  the 
ofiice  of  the  clerk  within  the  time  limited 
by  this  section  for  filing  the  undertaking. 
Eauer's  Law  etc.  Co.  v.  Standley,  3  Cal. 
App.  44;  84  Pac.  214.  Where  the  notice 
of  appeal  was  served  upon  the  attorneys  of 
record  of  a  respondent,  more  than  five  days 
before  the  filing  of  the  undertaking  on  ap- 
peal, a  second  service,  made  personally 
upon  such  respondent,  who  had  only  ap- 
peared by  his  attorneys,  is  a  mere  nullity, 
and  cannot  avail  to  postpone  the  time  re- 
quired by  law  for  the  filing  of  the  under- 
taking. Eose  V.  Mesmer,  134  Cal.  459 j  66 
Pac.  594. 

Exemption  from  filing.  A  city  is  not  re- 
quired to  file  an  undertaking  on  appeal 
(Meyer  v.  San  Diego,  130  Cal.  60;  62  Pac. 
211);  nor  is  the  state  required  to  file  an 
undertaking  on  appeal  (San  Francisco  etc. 
Collection  Co.  v.  State,  141  Cal.  354;  74 
Pac.  1047);  nor,  where  a  county  is  the  real 
party  in  interest,  under  §  1058,  post,  is  a 
county  officer  required  to  give  an  under- 
taking on  appeal,  though  no  order  is  ob- 
tained dispensing  with  the  undertaking 
under  §  946,  post.  Lamberson  v.  Jefferds, 
116  Cal.  492;  48  Pac.  485.  The  board  of 
education  of  the  city  and  county  of  San 
Francisco  does  not  represent  the  city  and 
county,  and  is  not  included  in  the  exemp- 
tion from  filing  an  undertaking  on  appeal 
provided  for  in  §  1058,  post.  Mitchell  v. 
Board  of  Education,  137  Cal.  372;  70  Pac. 
180. 

Exemption  from  giving  bonds  or  under- 
takings.    See  note  post,  §  1058. 

Waiver  of  filing.  The  filing  of  an  under- 
taking cannot  be  waived  by  a  stipulation 
made  after  the  right  of  appeal  is  lost 
(Niles  V.   Gonzalez,  152  Cal.   90;   92  Pac. 


1043 


UNDERTAKING JUSTIFICATION  OP   SURETIES. 


§940 


74);  and  a  stijnilation  to  the  correctness  of 
a  transcript,  tliat  an  undertaking  on  apjical 
was  duly  executed  and  tiled,  if  proved  ancl 
conceded  to  be  untrue,  and  made  without 
knowledge  of  the  facts,  is  not  binding,  and 
does  not  constitute  a  valid  waiver  of  the 
undertaking,  there  being  no  appeal  ]iend- 
ing  when  the  stij)ulation  was  made.  Perkins 
V.  Cooper,  87  Cal.  241 ;  21  Pac.  411. 

Failure  of  sureties  to  justify.  The  fail- 
ure of  the  sureties  to  justify  upon  the  un- 
dertaking on  appeal  from  the  judgment 
does  not  render  the  appeal  ineffectual,  nor 
take  from  the  appellate  court  jurisdiction 
of  the  cause;  and  while  au  ajipcal  is  pend- 
ing upon  one  notice  and  undertaking,  a 
second  appeal  is  unauthorized.  Tomi>kins 
V.  Montgomery.  116  Cal.  120;  47  Pac.  1006. 

Effect  of  failure  to  file.  Failure  to  file 
the  undertaking  on  appeal  within  five  days 
after  the  service  of  the  notice  of  appeal 
renders  the  appeal  ineffectual.  Boyd  v. 
Burrel,  60  Cal.  2S0;  Biagi  v.  Howes,  63  Cal. 
384;  Estate  of  Skerrett,  80  Cal.  62;  22  Pac. 
85;  Eeav  v,  Butler,  25  Pac.  685;  Hoyt  v. 
Stark,  134  Cal.  178;  86  Am.  St.  Kep.'246; 
66  Pac.  223;  Kose  v.  Mesmer,  134  Cal.  459; 
66  Pac.  594;  Buhman  v.  Nickels,  1  Cal. 
App.  266;  82  Pac.  85;  Hoyt  v.  Stark,  134 
Cal.  178;  86  Am.  St.  Rep.  246;  66  Pac.  223. 
Construing  together  §§  337  and  348  of  the 
Practice  Act  (this  section,  and  §  941,  post), 
failure  to  file  the  undertaking  or  make  the 
deposit  within  five  days  after  filing  the 
notice  of  appeal  is  fatal  to  the  appeal,  and 
it  must  be  dismissed.  Elliott  v.  Chapman, 
15  Cal.  383 

Dismissal  for  want  of  undertaking. 
While,  in  a  few  cases,  it  has  been  held  that 
an  appeal  will  not  be  dismissed  for  a  fail- 
ure to  file  an  undertaking  on  appeal  within 
five  days  after  the  service  of  the  notice  of 
appeal,  on  the  ground  that  the  appeal  is 
ineffectual  for  auv  purpose  (Reed  v.  Kim- 
ball, 52  Cal.  325;' Biagi  v.  Howes.  63  Cal. 
384;  Reay  v.  Butler,  25  Pac.  685;  Belle- 
garde  v.  San  Francisco  Bridge  Co.,  80  Cal. 
61;  22  Pac.  57),  yet  the  rule  seems  to  be, 
that  an  appeal  will  be  dismissed,  in  such 
cases,  by  the  appellate  court.  Winder  v. 
Hendriek,  54  Cal.  275;  Ellis  v.  Bennet,  2 
Cal.  Unrep.  302;  3  Pac.  801;  Perkins  v. 
Cooper,  87  Cal.  241;  25  Pac.  411;  Robinson 
V.  Templar,  114  Cal.  41;  45  Pac.  998;  Mever 
V.  San  Diego,  130  Cal.  60;  62  Pac.  211; 
Pacific  Mutual  Life  Ins.  Co.  v.  Edgar,  132 
Cal.  197;  64  Pac.  260;  Zane  v.  De  Onativia, 
135  Cal.  440;  67  Pac.  685.  Where  the  only 
undertaking  filed  is  limited  by  its  terms  to 
an  appeal  from  the  judgment,  an  appeal 
from  an  order  made  after  judgment,  with 
reference  to  which  no  undertaking  was 
filed,  must  be  dismissed.  Pignaz  v.  Burnett, 
121  Cal.  292;  35  Pac.  633.  Where  a  city 
and  a  water  company  jointly  gave  notice 
of  their  appeals,  a  motion  to  dismiss  both 
appeals  for  want  of  an  undertaking  on  ap- 
peal will  be  denied  as  to  the  city,  which 


is  not  required  to  give  an  undertaking,  and 
will  be  granted  as  to  the  water  company. 
Meyer  v.  San  Diego,  130  Cal.  60;  62  Pac. 
211.  Where  the  ajipeal  is  from  a  judgment, 
ami  from  any  onlcr  other  than  au  order 
denying  a  now  trial,  or  where  the  notice  of 
a]»peal  is  from  more  than  one  order,  a 
separate  undertaking  must  be  given  upon 
each  of  such  ap|>eals;  otherwise  a  motion 
to  dismiss  the  apjieal  will  be  granted.  Es- 
tate of  Kasson,  135  Cal.  1;  66  Pac.  871. 
An  undertaking  on  appeal,  executed  after 
the  filing  of  a  first  notice  of  appeal,  and 
])rior  to  the  filing  of  a  second  notice,  recit- 
ing that  the  appellant  has  api)ealed,  and 
that  the  sureties  un<lertal\e  in  considera- 
tion of  such  appeal,  refers  only  to  the  first 
appeal,  and  limits  the  liability  of  the  sure- 
ties thereto;  the  fact  that  the  undertaking 
was  filed  by  the  appellant's  attorney  subse- 
quently to  the  second  appeal  does  not  con- 
stitute it  an  undertaking  thereupon;  and 
the  second  appeal  must  be  dismissed  for 
want  of  an  undertaking.  Hibernia  Sav.  & 
L.  Soc.  v.  Freese,  127  Cal.  70;  59  Pac.  769. 
A  failure  to  file  any  undertaking  on  appeal 
may  be  taken  advantage  of  under  a  motion 
to  dismiss  the  appeal  on  the  ground  of  the 
insufficiency  of  the  undertaking,  where  the 
undertaking  filed  is  so  defective  as  not 
to  constitute  an  undertaking.  Wadleigh  v. 
Phelps,  147  Cal.  135;  81  Pac.  418.  When 
a  motion  to  dismiss  the  appeal  is  made  on 
the  ground  of  want  of  the  undertaking 
upon  appeal,  the  character  or  nature  of  the 
order  ayipealed  from  is  not  involved,  and 
the  action  of  the  court  is  limited  to  deter- 
mining whether  the  steps  taken  for  the 
appeal  are  in  compliance  with  the  statute 
prescribing  the  mode  of  taking  the  appeal. 
Estate  of  Kasson,  135  Cal.  1;  66  Pac.  871. 
The  judgment  roll  on  appeal  from  an  order 
subsequent  to  judgment  is  entirely  differ- 
ent from  the  judgment  roll  on  appeal  from 
the  judgment;  and  if  the  undertaking  and 
the  transcript  belonging  to  each  are  not 
filed  in  due  time,  the  respondent  is  entitled 
to  a  dismissal  of  the  appeal.  People  v. 
Center,  61  Cal.  191.  The  court  or  judge 
has  power  to  extend  the  time  allowed  by 
statute  in  which  to  file  the  undertaking 
on  appeal;  and  where  the  undertaking  is 
filed  within  the  time  properly  allowed  by 
the  order  of  the  judge  of  the  court,  a 
motion  to  dismiss  the  appeal  will  be  denied. 
Schloesser  v.  Owen,  134  Cal.  546;  66  Pac. 
726. 

Dismissal  of  appeal  at  request  of  appel- 
lant. An  attorney  signing  a  notice  of  ap 
jieal  is  presumed  to  have  had  authority 
from  the  appellant;  and,  unless  the  appel- 
lant himself  objects  to  the  prosecution  of 
the  appeal,  it  will  not  be  dismissed,  upon 
motion  of  the  respondent,  upon  the  ground 
that  it  is  prosecuted  against  the  will  of 
the  appellant;  nor  will  the  court  jiass  upon 
the  weight  or  sufBciency  of  conflicting  affi- 
davits   for    the    purpose    of    determining 


941 


APPEALS  IN    GENERAL. 


1044 


whether  the  appellant  desires  the  appeal  to 
be  dismissed.  Woodbury  v.  Nevada  etc. 
Ey.  Co.,  120  Cal.  367;  52  Pac.  650. 

Dismissal  as  to  some  respondents,  effect 
on  appellant.  In  an  appeal  by  the  state 
from  a  decree  of  distribution,  the  dismissal 
of  the  appeal  as  to  heirs  not  made  parties 
to  the  notice  cannot  affect  the  right  of  ap- 
peal by  the  state  as  to  the  parties  served: 
the  right  of  each  distributee  is  several,  and 
independent  of  the  rights  of  others  as  to 
the  state.  Estate  of  Pendergast,  143  Cal. 
135;  76  Pac.  962. 

Time  for  filing  notice  of  appeal.  See  note  9 
Ann.   Cas.   731. 

Parties  entitled  to  notice  of  appeal.  See  note 
13  Ann.  Cas.  181. 

CODE  COMMISSIONERS'  NOTE.  Section 
337  of  the  Practice  Act  of  1851  read  as  follows: 
"The  appeal  shall  be  made  by  filing  with  the 
clerk  of  the  court,  with  whom  the  judgment 
or  order  appealed  from  is  entered,  a  notice 
stating  the  appeal  from  the  same,  or  some 
specific  part  thereof,  and  serving  a  copy  of  the 
notice  upon  the  adverse  party  or  his  attorney." 
And  §348  as  follows:  "To  render  an  appeal 
effectual  for  any  purpose,  in  any  case,  a  writ- 
ten undertaking  shall  be  executed  on  the  part 
of  the  appellant,  by  at  least  two  sureties,  to 
the  effect  that  the  appellant  will  pay  all  dam- 
ages and  costs  which  may  be  awarded  against 
him  on  the  appeal,  not  exceeding  three  hun- 
dred dollars ;  or  that  sum  shall  be  deposited 
with  the  clerk  with  whom  the  judgment  or 
order  was  entered,  to  abide  the  event  of  the 
appeal.  Such  undertaking  shall  be  filed,  or 
such  deposit  made,  with  the  clerk  within  five 
days  after  the  notice  of  appeal  is  filed."  For 
these  two  sections.  §§  940  and  941  of  this  code 
have  been  substituted. 

1.  Substance  of  the  notice.  A  notice  of  ap- 
peal from  a  judgment  and  all  orders  made  in 
the  case  is  only  a  notice  of  appeal  from  the 
judgment.  Gates  v.  Walker,  3.5  Cal.  289.  An 
appeal  "from  all  orders  and  rulings  occurring  on 
the  trial"  is  not  an  appeal  from  an  order  grant- 
ing or  denying  a  new  trial.  Day  v.  Callow,  39 
Cal.  593.  A  notice  stating  that  the  appeal  is 
from  all  orders  made  by  the  probate  court  on  a 
certain  day  is  sufficient  to  cover  any  appealable 
order  made  on  the  dav  specified.  Estate  of 
Pacheco,  29  Cal.  229.  If  there  is  sufficient  in 
the  notice  to  show  that  the  notice  and  order 
contained  in  the  transcript  are  the  same  in- 
tended to  be  appealed  from,  the  appeal  will  not 
be  dismissed,  although  the  notice  may  contain 
mistakes  as  to  the  date  of  the  order  or  judg- 
ment. Flateau  v.  Lubeck,  24  Cal.  364.  If  the 
notice  is  signed  by  an  attorney  of  the  court,  the 
presumption  is  that  he  had  authority  to  take 
such  action.    Ricketson  v.  Torres,   23  Cal.  636. 

2.  Filing  notice  of  appeal.  It  was  held,  under 
§  337  of  the  Practice  Act  of  1851,  that  the 
filing  must  precede  or  be  contemporaneous  with 
service  of  notice.  Buffendeau  v.  Edmondson,  24 
Cal.  94;  Boston  v.  Haynes,  31  Cal.  107;  James 
V.  Williams,  31  Cal.  211;  Lvnch  v.  Dunn,  34 
Cal.  518;   Foy  v.  Domec,  33  Cal.  317.      And  must 


precede  the  filing  of  the  undertaking.  Buck- 
holder  V.  Bvers,  10  Cal.  481;  Dooling  v.  Moore, 
19  Cal.  81  ;  Carpentier  v.  Williamson,  24  Cal. 
609;  Buffendeau  v.  Edmondson,  24  Cal.  94. 
Filing  and  service  of  notice  is  indispensable. 
Bonds  V.  Hickman,  29  Cal.  460;  Whipley  v. 
Mills,  9  Cal.  641.  In  Hastings  v.  Halleck,  10 
Cal.  31,  it  was  held,  that  to  constitute  an  appeal 
three  things  were  necessary:  1.  Filing  of  notice; 
2.  Service  of  the  same';  and  3.  Filing  the  under- 
taking. All  of  these  steps  must  be  taken  within 
the  times  limited  by  the  statute;  and  if  not  so 
taken,  there  is  no  appeal  perfected,  and  the 
supreme  court  has  no  jurisdiction  of  the  case. 
It  will  be  seen,  by  reference  to  §  940  of  this 
code,  that  the  order  in  which  the  necessary  steps 
are  to  be  taken  has  been  changed.  When  the 
record  shows  that  a  notice  of  appeal  was  served 
the  same  day  that  it  was  filed  by  the  clerk,  and 
the  indorsement  of  the  filing  precedes  the  in- 
dorsement of  admission  of  service,  the  inference 
is  that  the  filing  preceded  the  service.  Wright 
V.  Ross,  26  Cal.  262.  Or  if  the  notice  of  appeal 
is  served  on  respondent's  attorney,  and  imme- 
diately afterwards  filed  by  the  clerk,  the  service 
and  filing  will  be  regarded  as  one  act.  Id. 
Affidavits  will  not  be  received  in  the  appellate 
court  to  show  that  a  notice  of  appeal  was  filed 
on  a  different  day  from  that  stated  in  the  record. 
Boston  V.  Haynes,  31  Cal.  107;  see  also  Loren- 
zana  v.  Camarillo,  45  Cal.  125.  If  one  of  sev- 
eral respondents  dies  before  notice  of  appeal 
is  filed,  a  motion  to  dismiss  the  appeal  as  to 
him  must  be  granted.  Shartzer  v.  Love,  40  Cal. 
93.  Where  an  appeal  was  taken  and  perfected 
after  the  death  of  the  appellant,  it  was  held  that 
there  was  no  authority  for  prosecuting  the  cause 
in  the  name  of  the  deceased,  but  that  all  pro- 
ceedings should  have  been  stayed  until  the  ex- 
ecutor or  administrator  could,  by  suggestion, 
have  been  made  a  party.  Sanchez  v.  Roach,  5 
Cal.  248. 

3.  Service  of  notice.  A  party  appealing  must 
notify  all  other  parties  to  the  action  who  have 
appeared  and  are  interested  in  opposing  the  re- 
lief sought  by  appeal.  Senter  v.  Bernal,  38 
Cal.  63  7.  The  words  "adverse  party,"  used  in 
relation  to  appeals,  includes  every  party  whose 
interest  in  the  subject-matter  is  adverse  to  a 
reversal  or  modification  of  the  judgment,  with- 
out regard  to  the  position  as  plaintiff  or  defend- 
ant of  the  party.  Senter  v.  Bernal,  38  Cal.  637. 
Service  on  attorney  is  sufficient.  Coulter  v. 
Stark,  7  Cal.  244.  It  must  affirmatively  appear 
that  the  notice  was  served.  Hildreth  v.  Gwin- 
don,  10  Cal.  490.  Proof  of  service,  and  supply- 
ing proof  of  service  of  notice.  See  Moore  v. 
Besse,  35  Cal.  184;  Towdy  v.  Ellis,  22  Cal. 
650;   Doll  V.   Smith,   32  Cal.  475. 

4.  Waiver  of  defects  in  notice.  James  v. 
Williams,   31  Cal.  211. 

5.  Waiver  of  notice.  McLeran  v.  Shartzer,  5 
Cal.  70;  63  Am.  Dec.  84;  Moulton  v.  Ellmaker, 
30  Cal.  527;  Mokelumne  Hill  etc.  Mining  Co. 
v.   Woodbury,  10  Cal.  185. 

6.  Filing  undertaking.  Elliott  v.  Chapman,  15 
Cal.  383;  Bradley  v.  Hall,  1  Cal.  199;  Cum- 
mins V.  Scott,  23  Cal.  526;  Shaw  v.  Randall,  15 
Cal.  384;  Hastings  v.  Halleck,  10  Cal.  31;  Car- 
pentier v.  Williamson,  24  Cal.  609.  If  no  un- 
dertaking on  appeal  has  been  filed,  one  may  be 
filed  after  the  objection  has  been  taken.  Born- 
heimer  v.  Baldwin,  38  Cal.  671;  see  also  §954 
of   this   code. 


§  941.  Undertaking  or  deposit  on  appeal.  The  undertaking  on  appeal 
must  be  in  writing,  and  must  be  executed  on  the  part  of  the  appellant,  by 
at  least  two  sureties,  to  the  effect  that  the  appellant  will  pay  all  damages 
and  costs  which  may  be  awarded  against  him  on  the  appeal,  or  on  a  dis- 
missal thereof,  not  exceeding  three  hundred  dollars;  or  that  sum  must  be 
deposited  with  the  clerk  with  whom  the  judgment  or  order  was  entered, 
to  abide  the  event  of  the  appeal. 


Undertaking  on  appeal. 

1.   Filing,    time    for.     Ante,    §   940,    and    see 
post,  §  1054. 


2.  Sufficiency  of.    Post.  §  954. 

3.  Sureties    paying   judgment. 
Deposit  with  clerk.    Post,  §  948. 


Post,  §  1059. 


1045 


UNDERTAKING SUFFICIENCY  AND  CONTEST  OF. 


941 


Filing  new  undertaking  in  appellate  court. 
See  post,  §  954. 

Qualification  of  sureties.    Post,  §  1057. 

Legislation  S  9il.  Enacted  Mnrch  11.  1872; 
based  on  Practice  Act,  §  348  (New  York  Code, 
§  334),  which  re.nd :  "To  render  «n  ap|)eal  ef- 
fectual for  any  purpose,  in  any  case,  n  written 
undertakiiiK  shall  be  e.xecuted  on  the  part  of  the 
appellant,  by  at  least  two  snreties,  to  the  etTect 
that  the  appellant  will  pay  all  damages  and  costs 
which  may  be  awarded  acainst  him  on  the  ap- 
peal, not  exceeding  three  hundred  dollars;  or  that 
sum  shall  be  deposited  with  the  clerk,  with  whom 
the  .lodgment  or  order  was  entered,  to  abide  the 
event  of  the  appeal.  Such  underlakine  shall  be 
filed,  or  such  deposit  made  with  the  clerk  within 
five  days  after  the  notice  of  appeal  is  filed." 

Constitutionality  of  statute.     The  aet  of 

March  12,  ISS.o  (Stats.  ISS.l,  p.  114),  in  so 
far  as  it  attempts  to  authorize  the  aocept- 
ance  of  a  corporation,  orsaiiized  for  that 
purpose,  as  sole  and  sufficient  surety  on  an 
undertakinsj  on  a])i)eal,  is  unconstitutional 
and  void.  Cramer  v.  Tittle,  2  ('al.  Unrep. 
71.-;;  11  Pac.  S.12. 

Construction  of  code  sections.  The  un- 
dertaking referred  to  in  this  section  and 
that  in  §  940,  ante,  are  obviouslv  the  same. 
McAulay  v.  Tahoe  Ice  Co.,  3  Cal.  App.  642; 
86  Pac.  912.  The  provisions  of  this  sec- 
tion, as  well  as  those  of  §§  98S,  9(53,  ante, 
must  be  read  as  if  the  words  "appeal," 
•"appellant,"  and  "party  aggrieved,"  were 
plural.  Estate  of  Sutro,  1.52  Cal.  249;  92 
Pac.  486,  1027.  This  section,  in  its  applica- 
tion to  probate  appeals,  is  limited.  Estate 
of  Brewer,  1.56  Cal.  89;  103  Pac.  486. 

Undertaking  or  deposit,  time  of  filing  or 
making.  Construing  together  §§  337,  348, 
of  the  Practice  Aet  (§  940,  ante,  and  this 
section),  an  appeal  is  not  effectual  for  any 
purpose,  unless  an  undertaking  is  filed  or 
a  deposit  made  with  the  clerk  within  five 
days  after  the  filing  of  the  notice:  failure 
so  to  file  the  undertaking  or  to  make  the 
deposit  is  fatal  to  the  appeal.  Elliott  v. 
Chapman,  15  Cal.  383.  The  filing  of  an 
undertaking  perfects  an  appeal,  but  it  is 
not  a  part  of  the  taking,  in  the  statutory 
sense;  hence,  the  filing  of  an  undertaking 
on  appeal,  more  than  sixty  days  after  the 
rendition  of  the  judgment,  does  not  pre- 
\ent  the  consideration  of  the  sufficiency  of 
the  evidence,  where  the  notice  of  appeal 
was  served  and  filed  within  such  time. 
Perkins  v.  Cooper,  8  Cal.  Unrep.  279;  24 
Pac.  377.  A  deposit  of  money  in  lieu  of 
an  undertaking  on  appeal  must  be  made 
•within  five  days  after  the  notice  of  ai>peal 
is  served  and  filed:  if  made  after  that  time, 
the  appeal  will  be  dismissed.  Stratton  v. 
Graham,  68  Cal.  169;  8  Pac.  710. 

Time  of  filing  undertaking.  See  note 
ante,  S  940. 

Contests  and  sufficiency  of  undertaking. 
An  undertaking  on  appeal,  which  is  i)r()p 
erly  entitled  in  the  case,  and  states  cor- 
rectly the  date  of  the  rendition  and  the 
entry  of  the  judgment,  is  sufficient  to  bind 
the  sureties:  the  specification  of  one  item- 
or  incident  of  the  jiidgmeut  cannot  invali- 


date what  is  otherwise  sufficient.  Wadleigh 
v.  Phelj.s,  147  Cal.  13.5;  81  Pac.  41S.  An 
undertaking  on  appeal,  which  does  not  con- 
tain a  stipulation  for  the  jiayment  of  dam- 
ages an<l  costs  in  the  event  of  a  dismissal 
of  the  appeal,  as  required  by  this  section, 
is  ineffectual.  Duncan  v.  Times-Mirror  Co., 
109  Cal.  602;  42  Pac.  147;  Anderson  v. 
Anderson.  123  Cal.  445;  56  Pac.  61;  Estate 
of  Fav,  126  Cal.  457;  58  Pac.  936;  Jarman 
V.  Rea,  129  Cal.  157;  61  Pac.  790.  Where 
the  undertaking  on  ai»|ieal  does  not  contain 
the  stipulation  for  the  payment  of  damaizes 
and  costs,  the  defect  is  not  cured  by  the 
insertion  of  such  stipulation  in  an  under- 
taking to  stay  e.xecution  of  the  judgment, 
although  the  latter  uudertaking  is  included 
in  the  same  document  with  the  former  and 
the  sureties  on  each  are  the  same.  Duncan 
v.  Times-Mirror  Co.,  109  Cal.  602;  42  Pac. 
147.  An  undertaking  on  appeal,  by  one 
defen<laiit.  that  the  sureties  undertake  that 
the  apjiellants  will  pay  all  costs  and  dam- 
ages, is  insufficient:  standing  on  the  strict 
letter  of  their  contract,  the  sureties  could 
not  be  liable  thereon  for  anything  as  costs 
and  damages  that  could  be  awarded  against 
only  one  appealing  defendant.  Zane  v.  De 
Onativia,  135  Cal.  440;  67  Pac.  685.  The 
proj)er  construction  of  an  undertaking  on 
appeal,  that  the  sureties  will  pay  all  costs 
and  damages  that  may  be  awarded  against 
the  apjiellant,  is,  that  the  sureties  are  liable 
thereon  to  the  respondent;  and  the  omis- 
sion of  the  name  of  the  obligee,  in  such 
undertaking,  is  immaterial.  Downing  v. 
Eademacher,  136  Cal.  673;  69  Pac.  415.  An 
undertaking  on  appeal  from  a  judgment, 
which  properly  refers  to  the  judgment,  so 
as  fullv  to  idcntifv  it,  is  suflScient.  Pacific 
Paving  Co.  v.  Verso,  11  Cal.  App.  3S3;  105 
Pac.  136.  An  undertaking  on  appeal,  other 
wise  sufficiently  referring  to  the  order  from 
which  the  api)eal  is  taken,  is  not  rendered 
insufficient  because  of  a  recital  therein, 
that  the  plaintiff  "is  about  to  appeal,"  in- 
stead of  that  he  "has  appealed,"  from  such 
order.  Kaltschmidt  v.  Weber,  139  Cal.  76; 
72  Pac.  632.  The  undertaking  on  appeal 
must  conform  to  the  notice  of  appeal; 
hence,  where  the  notice  of  appeal  is  from 
the  whole  judgment,  and  the  undertaking 
recites  an  appeal  from  the  judgment  for 
costs,  the  a])peal  will  be  dismissed.  Stock- 
ton School  District  v.  Goodell,  6  Cal.  Unrep. 
277;  56  Pac.  885. 

Execution  of  undertaking.  An  under- 
taking on  apjieal  is  an  independent  con- 
tract on  the  part  of  the  sureties,  in  which 
it  is  not  necessary  that  the  appellant  shall 
join:  the  statute  provides  that  it  shall  be 
executed  on  tlie  part  of  the  appellant,  not 
bv  him,  but  bv  the  sureties.  Curtis  v. 
Richards.  9  Cal.  U. 

Sufficiency  of  single  undertaking  for  two 
appeals.  A  single  undertaking  on  an  ap- 
]ieal  from  the  ju<lgment,  and  from  an  order 
denying  a  new  trial,  is  sufficient  (Chester 


941 


APPEALS  IN    GENERAL. 


1046 


V.  Bakersfieia  Town  Hall  Ass'n,  6-4  Cal.  42; 
27  Pac.  1104;  Sharon  v.  Sharon,  6S  Cal. 
326;  9  Pac.  187;  Corcoran  v.  Desmond,  71 
Cal.  100;  11  Pac.  815;  Centerville  etc. 
Ditch  Co.  V.  Bachtold,  109  Cal.  Ill;  41  Pac. 
813;  Estate  of  Ever,  110  Cal.  556;  42  Pac. 
1082;  Granger  v.  Robinson,  114  Cai.  631; 
46  Pac.  604;  Martin  v.  Ornelas,  139  Cal. 
41;  72  Pac.  440;  White  v.  Stevenson,  139 
Cal.  531;  73  Pac.  421;  Buehner  v.  Malloy, 
152  Cal.  484;  92  Pac.  1029);  but  such  un- 
dertaking must  refer  to  each  of  the  ap- 
peals, and  show,  upon  its  face,  that  it  is 
given  in  consideration  of  both:  if  it  recites 
merely  one,  the  other  ajjpeal  will  be  dis- 
missed. Buehner  v.  Malloy,  152  Cal.  484; 
92  Pac.  1029.  Where  the  undertaking  on 
appeal  from  the  judgment  makes  no  refer- 
ence to  the  appeal  from  the  order  denying 
a  new  trial,  such  last-named  appeal  will 
be  dismissed.  Corcoran  v.  Desmond,  71 
Cal.  100;  11  Pac.  815;  Berniaud  v.  Beeeher, 
16  Pac.  510;  Wood  v.  Pendola,  77  Cal.  82; 
19  Pac.  183;  Sehurtz  v.  Romer,  81  Cal.  244; 
22  Pac.  657;  Crew  v.  Diller,  86  Cal.  555;  25 
Pac.  66;  Pacific  Paving  Co.  v.  Bolton,  89 
Cal.  155;  26  Pac.  650;  Forni  v.  Yoell,  95 
Cal.  442;  30  Pac.  578;  Duncan  v.  Times- 
Mirror  Co.,  109  Cal.  602;  42  Pac.  147; 
Granger  v.  Robinson,  114  Cal.  631;  46  Pac. 
604;  Rhoads  v.  Grav,  5  Cal.  Unrep.  664;  48 
Pac.  971;  Dodge  v.  Kimple,  121  Cal.  580;  54 
Pac.  94;  McRae  v.  Argonaut  Land  etc.  Co., 
6  Cal.  Unrep.  145;  54  Pac.  743.  The  under- 
taking on  the  appeal  from  the  judgment  is 
distinct  from  the  undertaking  on  appeal 
from  the  order  denying  a  new  trial;  and 
although  both  may  be  included  in  the  same 
instrument,  yet  the  validity  of  each  is  to 
be  determined  by  a  reference  to  the  appeal 
for  which  it  is  given.  Clarke  v.  Mohr,  125 
Cal.  540;  58  Pac.  176.  On  appeal  from  a 
judgment,  and  from  an  order  denying  a 
new  trial,  the  undertaking  must  refer  to 
each  of  the  appeals  as  distinctly  as  if  they 
were  from  sejiarate  orders  requiring  an  un- 
dertaking for  each.  Granger  v.  Robinson, 
114  Cal.  631;  46  Pac.  604;  Corcoran  v.  Des- 
mond, 71  Cal.  100;  11  Pac.  815.  An  under- 
taking on  appeal,  which,  after  reciting 'an 
appeal  from  the  judgment,  and  an  appeal 
from  the  order  denying  a  new  trial,  de- 
clares that  the  appellants  will  pay  damages 
awarded  against  them  on  the  appeal  or  on 
a  dismissal  thereof,  not  exceeding  three 
hundred  dollars,  is  sufficient  to  sustain  both 
appeals.  Bell  v.  Staacke,  159  Cal.  193;  115 
Pac.  221.  Where  one  undertaking  on  ap- 
peal is  sufficient  to  cover  joint  appeals  from 
the  judgment,  and  from  an  order  denying 
a  new  trial,  the  fact  that  the  words  "or 
either  of  them"  are  omitted  after  the  word 
"appeals,"  in  the  undertaking,  does  not 
render  it  invalid.  Martin  v.  Ornelas,  139 
Cal.  41;  72  Pac.  440.  Where  only  one  un- 
dertaking on  appeal  was  filed,  which  re- 
cited the  judgment,  and  the  order  appealed 
from,  and  provided  that,  in  consideration 


of  such  appeal,  the  appellants  would  pay 
all  damages  and  costs,  and  also  contained 
a  further  provision  and  promise  for  a  stay 
of  execution  under  the  judgment,  the  un- 
dertaking is  insufficient  to  support  either 
the  appeal  from  the  judgment  or  the  ap- 
peal from  the  order.  Corcoran  v.  Desmond, 
71  Cal.  100;  11  Pac.  815.  Where  two  ap- 
peals are  taken,  one  from  the  judgment 
and  the  other  from  an  order  denying  a 
motion  to  set  aside  the  judgment,  a  single 
undertaking,  given  "in  consideration  of  the 
premises  and  of  such  appeal,"  and  condi- 
tioned that  the  appellants  will  pay  all 
damages  awarded  against  them  on  "the  ap- 
peal," is  insufficient,  by  reason  of  its  am- 
biguity, to  support  either  appeal.  Carter 
V.  Butte  Creek  Gold  Mining  etc.  Co.,  131 
Cal.  350;  63  Pac.  667.  Where  an  appellant, 
by  one  notice  of  appeal,  gave  notice  that 
he  appealed  from  the  judgment,  from  an 
order  denying  a  motion  to  dismiss  the  ac- 
tion, and  from  an  order  denying  a  motion 
to  set  aside  a  judgment  by  default,  and 
gave  one  undertaking  upon  appeal,  not  re- 
ferring separately  to  either  of  the  appeals, 
the  undertaking  is  void,  and  there  is  no 
remedy,  under  this  section,  to  file  a  new 
undertaking,  so  as  to  preclude  a  dismissal 
of  the  appeal.  McCormick  v.  Belvin,  96 
Cal.  182;  31  Pac.  16.  An  undertaking  on 
appeal  is  void,  and  the  appeal  wholly  in- 
effectual, where  there  is  more  than  one 
appeal,  and  the  recitals  of  the  undertaking 
do  not  identify  the  particular  appeal  which 
it  was  intended  to  perfect.  Estate  of  Sutro, 
152  Cal.  249;  92  Pac.  486,  1027;  Pacific 
Paving  Co.  v.  Verso,  11  Cal.  App.  383;  105 
Pac.  136.  An  undertaking  on  appeal  from 
an  order  denying  a  motion  to  dismiss  an 
action,  and  from  an  order  denying  a  new 
trial,  which  does  not  state  that  the  appeal 
has  been  taken  from  both  orders,  is  in- 
sufficient. Field  V.  Andrada,  37  Pac.  180. 
Where  an  appeal  is  taken  from  two  dis- 
tinct orders,  and  only  one  undertaking  is 
filed,  which  fails  to  designate  to  which  of 
the  appeals  it  is  intended  to  apply,  it  is  so 
ambiguous  that  it  must  be  disregarded  as 
if  none  had  been  filed.  Home  etc.  Associ- 
ates V.  Wilkins,  71  Cal.  626;  12  Pac.  799; 
Crew  V.  Diller,  86  Cal.  555;  25  Pac.  66; 
Estate  of  Heydenfeldt,  119  Cal.  346;  51 
Pac.  543;  and  see  People  v.  Center,  61  Cal. 
191.  Where  there  are  several  appeals  in 
the  same  action,  the  record  on  each  appeal 
may  be  embodied  in  one  transcript,  but 
each  appeal  must  be  accompanied  by  an 
undertaking,  and  the  particular  appeal  to 
which  it  i^pplies  designated,  although  the 
undertakings  may  be  contained  in  one  in- 
strument, if  the  objects  for  which  they 
are  executed  can  be  clearlv  distinguished. 
Sharon  v.  Sharon,  68  Cal.  326;  9  Pac.  187. 
An  undertaking  for  costs,  filed  on  an  ap- 
peal from  an  order  dismissing  a  motion  for 
a  new  trial,  which  does  not  refer  to  an 
ajjpeal  from  the  judgment,  which  is  taken  . 


1047 


undi:rtaki5:q  ox  joint  ai-i'kals — suhkties. 


§041 


Buhsoqiicntly,  cannot  be  trcatod  as  an  un- 
dcrtaUint;  for  costs  on  such  subsequent  ap- 
peal. Biajji  V.  Howes,  63  Cal.  3S4.  Wlicro 
the  appeal  is  from  a  .iudfjinent  and  any 
order  other  than  an  order  denying  a  new 
trial,  or  where  the  notice  of  a]ii>eal  is  from 
more  than  one  order,  a  sejtarate  undcrfalv- 
ing  must  be  jjiven  on  each  of  such  appeals; 
and  this  rule  is  not  varied  by  the  fact  that 
one  or  more  of  the  orders  included  in  tho 
appeal  is  not  appealable.  Estate  of  Kassoii, 
lo.j  Cal.  1;  6G  I'ac.  871.  Where  a  notice 
of  apj)eal  from  a  judgment  also  specially 
enumerates  numerous  unapjiealable  orders 
as  orders  appealed  from,  which  are  review- 
able on  appeal  from  the  judgment,  it  is  a 
notice  of  appeal  from  the  .iudgment  alone, 
and  a  single  undertaking  is  suflicient. 
"Wadleigh  v.  Phelps,  147  Cal.  13o;  81  Pac. 
418.  Where  an  ai)])eal  was  taken  from  a 
judgment  dismissing  the  action,  and  also 
from  an  order  made  after  judgment,  a 
single  undertaking  is  insufficient.  Gardiner 
v.  California  Guarantee  Investment  Co., 
129  Cal.  52S;  62  Pac.  110.  The  word  "ap- 
peal," as  used  in  the  undertaking  portion 
of  an  appeal  bond,  means  the  whole  apjieal 
described  in  the  instrument,  both  that  from 
the  judgment  and  the  appeal  from  the 
order  denying  a  new  trial.  Buchner  v. 
Malloy,  152  Cal.  484;  92  Pac.  1029. 

Undertaking  on  joint  appeals.  The  stat- 
ute docs  not  require  sejiarute  undertakings 
for  separate  interests.  Estate  of  Sutro,  lo2 
Cal.  249;  92  Pac.  486,  1027.  A  plaintiff  and 
a  defendant,  who  were  defendants  in  a 
cross-comi)laint  filed  by  another  defendant, 
may  unite  in  an  undertaking  on  appeal 
from  the  order  against  them  on  such  cross- 
complaint.  Downing  v.  Eademacher,  136 
Cal.  673;  69  Pac.  415.  The  insufficiency  of 
the  three-hundred  dollar  undertaking  on  a 
joint  appeal  will  not  defeat  the  ajipeal. 
Estate  of  Sutro,  152  Cal.  249;  92  Pac.  486, 
1027.  Where  an  appeal  is  taken  by  more 
than  one  party,  and  an  undertaking  thereon 
is  given  by  only  one  of  tlic  appellants,  such 
undertaking  is  sufficient  to  perfect  the  ap- 
peal of  the  appellant  by  whom  it  is  given; 
but  where  an  appeal  is  taken  by  only  one 
party,  and  the  undertaking  thereon  pur- 
ports to  be  given  on  an  appeal  taken  by 
several  appellants,  such  undertaking  is  in- 
sufficient to  support  the  appeal,  and  it  will 
be  dismissed.  Zane  v.  De  Onativia,  135  Cal. 
440;  67  Pac.  685. 

Clerical  errors  in  undertaking.  "Where 
the  year  as  well  as  the  date  of  the  judg- 
ment is  incorrectly  stated  in  the  undertak- 
ing on  appeal,  but  the  mistake  in  the  year 
is  an  obvious  slip  of  the  pen,  ami  corrects 
itself,  while  the  mistake  as  to  the  day  is 
immaterial,  the  undertaking  is  not  viti- 
ated, where  the  judgment  is  otherwise  cor- 
rectly described,  so  that  sureties  on  the 
undertaking  are  bound  bv  it.  Swasey  v. 
Adair,  S3  Cal.  136;  23  Pac.  284. 


Consideration  for  undertaking.  An  un- 
dertaking on  appeal  from  an  order  denying 
a  new  trial,  before  it  is  entered,  is  without 
consideration,  and  voiil.  Clarke  v.  Mohr, 
125  Cal.  540;  ."iS  Pac.  176;  Stack  polo  v. 
Hermann,  126  Cal.  465;  58  Pac.  935.  Tho 
validity  of  an  apfieal  bonil  given  as  re- 
quired by  law  to  make  an  ai)pe:il  effectual, 
the  sureties  upon  whi(di  agree  to  be  liaVde 
if  the  appeal  is  dismissed,  is  not  destroyed 
by  the  fact  that  the  api>eal  is  premature 
and  is  not  effectually  secured;  the  expense 
to  the  res])ondent  in  securing  a  dismissal 
of  the  voiil  appeal  is  a  consideration  for 
such  undertaking.  Estate  of  Kennedy,  129 
Cal.  384;  62  Pac  64. 

Death  of  obligee,  effect  on  undertaking. 
The  fa<'t  that  a  co-iilaintilV  .li-.l  ],ri..r  to 
the  judgment  in  the  action  does  not  vitiate 
an  undertal\ing  given  u{)on  a[ipeal  in  his 
favor  as  one  of  the  co  idaintilVs;  his  name 
as  obligee  represented  his  executors  or  dis- 
tributees as  the  real  parties  in  interest;  the 
undertaking  necessarily  follows  the  judg- 
ment, and  is  valid,  both  as  against  the 
obligors  and  in  favor  of  the  executors  or 
distriliutees  of  the  deceased  obligee  named 
therein.  Todhunter  v.  Klemmer,  134  Cal. 
60;  66  Pac.  75. 

Liability  of  sureties.  The  presumption 
is,  that  the  surety  on  an  undertaking  on 
appeal  intended  to  undertake  for  the  ap- 
peal then  in  force,  ai^il  not  for  a  prior  in- 
effectual appeal.  Estate  of  Sutro,  152  Cal. 
249;  92  Pac.  486,  1027.  An  undertaking  on 
appeal  from  an  order  denying  a  new  trial, 
before  it  is  enteroil,  is  without  considera- 
tion; and  the  subsequent  interlineation  of 
the  date  of  the  order  in  such  undertaking 
is  an  alteration  discharging  the  sureties, 
and  such  appeal  must  be  dismissed.  Clarke 
v.  :\rohr.  125  Cal.  540;  58  Pac.  176. 

Attorney  as  surety.  The  fact  that  one 
of  the  attorneys  of  the  appellant  became 
a  surety  for  such  appellant  upon  the  under- 
taking on  appeal,  in  violation  of  a  rule  of 
the  court,  is  not  a  ground  of  dismissal.  De 
Jarnatt  v.  Mariruez,  127  Cal.  558;  78  Am. 
St.  Rep.  90;  60  Pac.  45. 

Estoppel  to  object  to  undertaking. 
Wher'>  a  respondent  stipulates  that  the  ap- 
pellant has  in  due  time  given  and  filed  a 
good  and  sufficient  undertaking  upon  ap- 
peal in  the  cause,  he  is  estopped  from  con- 
tradicting, after  the  time  for  appeal  has 
expired,  his  former  admissions.  Forni  v. 
Yoell,  95  Cal.  442;  30  Pac.  578.  Where,  on 
appeal  from  an  order  settling  tho  final 
account  of  an  executor  and  distributing 
the  estate,  there  is  a  stipulation  in  the 
transcript,  that  "an  undertaking  in  due 
form  was  properly  made  and  filed,"  the  ob- 
jection that  there  are  in  fact  two  appeals, 
and  that  the  undertaking  is  invalid  because 
it  refers  to  only  one,  without  indicating 
which  one,  cannot  be  raised  after  tho  ex- 
piration of  the  time  within  which  another 
undertaking  might  have  been  filed.    Estate 


941a 


APPEALS    IN    GENERAL. 


1048 


Effect  of  perfecting  appeal  to  stay  pro- 
ceedings.   See  note  ]iost,  §  949. 

Withdrawal  of  deposit.  A  party  who 
has  deposited  in  the  trial  court  the  amount 
of  money  required  in  lieu  of  an  under- 
taking upon  ajiiJoal,  will  not  be  allowed, 
upon  a  motion  therefor  in  the  su])reme 
court,  to  withdraw  the  money  so  deposited, 
and  file  an  undertaking  upon  appeal  in  lieu 
thereof.  Wiebold  v.  Eauer,  9.5  Cal.  41S;  30 
Pac.  .5.58. 

Appeal  dismissed  when.  In  the  absence 
of  a  bond,  deposit,  or  waiver,  the  appeal  is 
ineffectual,  and  will  be  dismissed.  Willow 
Lan.l  Co.  v.  Goldschmidt,  11  Cal.  App.  297; 
104  Pac.  841. 

Undertaking  on  appeal  from  justice's 
court.    See  note  jiost,  §  978. 

Methods  of  taking  an  appeal.  See  note 
ante,  §  940,  and  note  post,  §  941b. 

Liability  of  sureties  on  appeal  bonds.  See  note 
38  Am.  St.  K(  p.   Tirj. 

CODE  COMMISSIONERS'  NOTE.  1.  Gener- 
ally. Elliott  V.  Chapman,  15  Cal.  383;  Gordon 
V.  Wansey,    19   Cal.  82. 

2.  Form  of  undertaking.  Canfleld  v.  Bates,  13 
Cal.  606;  Dore  v.  Covev,  13  Cal.  502;  Dobbins 
V.  Dollarhide,  15  Cal.  375;  Billings  v.  Road- 
house,  5  Cal.  71;  Swain  v.  Graves,  8  Cal.  549; 
Tissot  V.  Darling,  9  Cal.  278;  Zoller  v.  McDon- 
ald.  23   Cal.   136. 

3.  State  and  county  need  not  file  undertaking. 
Warden  v.  Mendocino  County,  32  Cal.  655; 
People  V.  Clingan,  5  Cal.  389;  Thornton  v. 
Mahoney,   24   Cal.   569.      See  §  1058   of  this   code. 


of  Marshall,  118  Cal.  379;  50  Pac.  540; 
Springer  v.  Springer,  126  Cal.  452;  58  Pac. 
1060.  Notwithstanding  one  undertaking 
vpon  two  distinct  appeals  is  so  defective  as 
to  justify  the  dismissal  of  both,  yet  the 
right  to  move  to  dismiss  the  ajipeal  from 
the  judgment  will  be  deemed  waived,  where 
the  parties  have  mutually  stipulated  for 
extensions  of  time  for  the  filing  of  points 
and  authorities,  and  no  objection  was  raised 
to  the  regularity  or  sufficiency  of  the  ap 
peal  until  after  such  points  and  authorities 
were  filed,  and  until  it  was  too  late  to  take 
another  appeal;  but  such  waiver  does  not 
apply  to  a  distinct  appeal  from  an  order 
made  after  judgment,  the  time  of  appeal 
from  which  had  elapsed  before  any  stipula- 
tions were  made.  Gardiner  v.  California 
Guarantee  Investment  Co.,  129  Cal.  528;  62 
Pac.  110. 

Undertaking  stays  proceedings.  Upon 
appeal  from  an  order  appointing  an  admin- 
istrator, the  required  undertaking  on  ap- 
peal stays  all  proceedings  upon  the  order 
appealed  from.  Estate  of  Woods,  94  Cal. 
566;  29  Pac.  1108.  The  vmdertaking  pro- 
vided for  by  this  section  stays  proceedings, 
except  in  those  eases  specified  in  §§  942-945, 
post,  and  a  few  special  matters  mentioned 
in  §  949,  post.  Estate  of  Woods,  94  Cal.  566; 
29  Pac.  1108. 

Stay  of  proceedings.  See  also  note  post, 
§  949. 

§  941a.  Appeals.  Alternative  method.  Appeals  from  all  judgments, 
orders  or  decrees  of  any  of  the  superior  courts  of  this  state,  which  may  pur- 
suant to  law  be  reviewed  by  the  supreme  court,  or  any  of  the  district  courts 
of  appeal  of  this  state,  may,  in  addition  to  the  other  modes  prescribed  by 
law,  be  taken  pursuant  to  the  provisions  of  the  next  section. 

provisions  relative  to  probate  appeals.  Es- 
tate of  Brewer,  156  Cal.  89;  103  Pac.  486. 

Bill  of  exceptions  must  be  served.  The 
alternative  method  of  appeal,  prescribed  in 
§§  941a,  941b,  941e,  does  not  dispense  with 
service  of  the  bill  of  exceptions  to  be  used 
on  motion  for  a  new  trial.  Ford  v.  Braslan 
Seed  Growers  Co.,  10  Cal.  App.  762;  103 
Pac.  946. 

Consideration  of  evidence.  Under  this 
section  and  §§  941b,  941e,  post,  the  ap- 
pellate court  cannot  consider  the  evidence, 
unless  it  is  embodied  in  a  statement,  bill 
of  exceptions,-  or  a  transcript,  approved  as 
provided  in  §  953,  post.  Lane  v.  Tanner, 
156  Cal.  135;  103  Pac.  846.  A  sufficient 
record  is  made,  so  far  as  the  notice  of  ap- 
peal and  the  judgment  roll  are  concerned, 
by  the  clerk's  certificate  to  their  correct- 
ness. Totten  V.  Barlow,  165  Cal.  378;  132 
Pac.  749.  An  appellant,  in  order  to  avail 
himself  of  the  alternative  method  of  ap- 
peal, must  present  a  transcript  consisting 
of  copies  of  the  moving  papers,  the  evi- 
dence taken  upon  the  hearing  of  the  mo- 


Legislation  §  941a.  Added  by  Stats.  1907, 
p.  753  (based  on  §§949-554,  Bellinger  and  Cot- 
ton's Oregon  Ann.  Codes  and  Stats.);  the  code 
commissioner  saying  of  this  section  and  of 
§§941b  and  941c.  "These  are  entirely  new  pro- 
visions prescribing  an  alternative  method  of  tak- 
ing appeals  to  the  supreme  court  or  district  courts 
of  appeal." 

Constitutionality.  The  alternative  method 
of  appeal  is  constitutional.  Mitchell  v. 
California  etc.  S.  S.  Co.,  154  Cal.  731;  99 
Pac.  202. 

Construction.  The  act  of  1907  did  not 
repeal  the  old  method  of  appeal;  an  appeal 
perfected  under  either  method  is  sufficient: 
all  statutes  in  aid  of  appeals  are  to  be  lib- 
erally construed  and  applied.  Mitchell  v. 
California  etc.  S.  S.  Co.,  154  Cal.  731;  99 
Pac.  202.  Eules  of  decision  are  not  changed 
by  the  alternative  method.  United  Invest- 
ment Co.  V.  Los  Angeles  etc.  Ry.  Co.,  10 
Cal.  App.  175;  101  Pac  543. 

Probate  appeals.  The  alternative  method 
of  appeal  is  applicable  to  appeals  from  pro- 
bate orders.  Estate  of  McPhee,  154  Cal. 
385;  97  Pac.  878.  This  section  is  limited 
in  its  a^jplication  by  the  existence  of  special 


1049 


NOTICE   OF   APPEAL — CONTENTS   OF — ENTRY    OF    JUDGMENT. 


§941b 


tion,  ant!  the  rulings  of  the  court  thoroon, 
certified  by  the  trial  judge:  the  cleric 
cannot  certify  this  record.  Thompson  v. 
American  Fruit  Co.,  21  Cal.  Apf).  '.V.\S;  l.^l 
Pac.  878;  Pouchan  v.  (Jodeau,  21  Cal.  App. 
365;  131  Pac.  879. 


Undertaking  not  required.  No  under- 
taking is  riMpiired  on  an  a])pcal  under  tiiis 
section.  Theisen  v.  Matthai,  1G5  Cal.  249; 
i;n  Pac.  74  7. 

Undertaking  not  necessary  under  new 
method  of  appeal.    Sec  note  jiost.  S  i»lll). 


§  941b.  Notice  of  appeal,  what  to  contain.  Any  person  to  whom  tlie 
right  of  appeal  from  any  judgment,  order  or  decree  of  the  superior  eourt.s 
of  the  state  is  granted,  may  appeal  therefrom  by  filing  with  the  clerk  of 
the  court  in  Avhich  the  judgment,  order  or  decree  is  rendered,  a  notice  en- 
titled in  the  cause  in  which  said  judgment,  order  or  decree  was  made,  which 
said  notice  shall  state  that  the  person  giving  the  same  docs  thereby  api)eal 
to  the  supreme  court  or  district  court  of  appeal,  as  the  case  may  be,  from 
the  judgment,  order  or  decree,  or  some  specific  part  thereof;  and  the  said 
notice  must  identify  the  said  judgment,  order  or  decree  or  the  part  thereof 
appealed  from,  -with  reasonable  certainty.  This  notice  may  be  filed  at  any 
time  after  the  rendition  of  the  judgment,  order  or  decree,  but  tlic  same  must 
be  filed  within  sixty  days  after  entry  of  said  judgment,  order  or  decree. 
If  proceedings  on  motion  for  a  new  trial  are  pending,  the  time  for  appeal 
from  the  judgment  shall  not  expire  until  thirty  days  after  entry  in  the  trial 
court  of  the  order  determining  such  motion  for  a  new  trial,  or  other  ter- 
mination in  the  trial  court  of  the  proceedings  upon  such  motion.  This  notice 
need  not  be  served  upon  any  of  the  parties  to  the  action  or  the  proceeding, 
or  their  representatives  or  attorneys,  but  Avhen  filed  Avithin  the  time  herein 
specified  it  shall,  without  further  action  on  the  part  of  the  appellant,  trans- 
fer the  cause  for  decision  and  determination  to  the  higher  court.  In  the 
event  of  the  death  of  any  person  having  at  his  death  a  right  of  appeal  the 
attorney  of  record  representing  the  decedent  in  the  court  in  which  the 
judgment  Avas  rendered  may  appeal  therefrom  at  any  time  before  the  ap- 
pointment of  an  executor  or  an  administrator  of  the  estate  of  the  decedent. 


Legislation  §  941b.  1.  Added  by  Stats.  1907, 
p.  753;  basfd  on  §§  549—554,  Bellinger  and  Cot- 
ton's Oregon  Ann.  Codes  and  Stats.  See  ante, 
Legislation  §  941a. 

2.  Amended  by  Stats.  1915,  p.  204,  (1)  in 
serond  sentence,  (a)  striking  out  "notice  of," 
before  "entry  of  said  judgment,"  and  (b)  also 
striking  out,  at  end  of  sentence,  "has  been 
served  upon  the  attorneys  of  record  appearing 
in  said  cause  or  proceeding,  provided,  however, 
that  if  no  notice  of  entry  of  judgment  be  given 
the  notice  must,  nevertheless,  be  iiled,  under  any 
circumstances,  not  later  than  six  months  after 
the  entry  of  the  judgment,  order  or  decree";  (2) 
inserting   the   third   sentence. 

Application  of  section.  This  section  ap- 
plies to  all  appeals;  but  as  to  probate  ap- 
peals it  is  limited  in  its  application  by  the 
existence  of  special  provisions  relative  to 
such  appeals.  Estate  of  Brewer,  1.56  Cal. 
89;  103  Pac.  486.  An  appeal  in  a  probate 
or  guardianship  proceeding  is  not  to  be 
taken  under  this  section,  but  under  §§  1714, 
1715,  post.  Estate  of  Duuphy,  158  Cal.  1; 
109  Pac.  627.  The  last  paragraph  of  this 
section  is  inapplicable,  where  an  admin- 
istratrix was'  appointed  and  letters  were 
issued  to  her  before  the  filing  of  either  of 
the  notices  of  appeal.  Deiter  v.  Kiser,  158 
Cal.  259;  110  Pac.  921. 


Notice  of  entry  of  judgment.  The  notice 
of  entry  of  judgment  is  a  notice  in  writ- 
ing, which  may  be  served  in  the  ordinary 
manner.  Estate  of  Keating,  158  Cal.  109; 
110  Pac.  109.  Where  the  record  on  appeal 
does  not  show  that  any  notice  of  entry 
of  judgment  was  served  on  the  appellants, 
it  must  be  assumed  that  no  such  notice  was 
served.  Fraser  v.  Sheldon,  164  Cal.  165; 
128  Pac.  33.  Actual  service  of  a  written 
notice  of  the  entry  of  a  judgment  is  es- 
sential to  start  in  motion  the  sixty  days 
within  which  to  appeal.  Huntington  Park 
Improvement  Co.  v.  Park  Land  Co.,  165 
Cal.  429;  132  Pac.  760.  This  section  does 
not  require  that  any  notice  of  the  entry 
of  the  order  or  judgment  shall  be  fileil  or 
l>ut  upon  the  recorti.  Foss  v.  Johnstone, 
158  Cal.  119;  110  Pac.  294. 

Time  of  appeal.  Under  this  section, 
which  prescribes  a  new  method  of  appeal- 
ing from  final  judgments,  the  appeal  must 
be  taken  within  sixty  days  after  the  notice 
of  entry  of  judgment,  or  if  no  notice 
thereof  is  given,  not  later  than  six  months 
after   the   entry   of   such  judgment.     Cook 


§941b 


APPEALS   IN    GENERAL. 


1050 


V.  Suburban  Eealty  Co.,  20  Cal.  App.  538; 
129  Pac.  801.  This  section  allows  an  appeal 
to  be  taken  from  an  order  at  any  time 
after  the  rendition  thereof,  provided  it  is 
within  sixty  days  after  notice  of  the  entry 
thereof  has  been  served  on  the  attorney  of 
record  of  the  adverse  party,  or  if  no  such 
notice  is  given,  then  not  later  than  six 
months  after  such  entry.  Foss  v.  John- 
stone, 158  Cal.  119;  110 'Pac,  294.  Where 
no  notice  of  an  order  denying  a  new  trial 
was  ever  served,  an  appeal  from  the  order, 
taken  more  than  sixty  days  but  within  six 
months  from  the  date  of  its  entry,  is  in 
time,  under  this  section  and  §  941a,  ante. 
Erode  v.  Goslin,  158  Cal.  699;  112  Pac.  280. 
Though  an  appeal  taken  more  than  sixty 
days  after  the  entry  of  the  order  denying 
a  new  trial  would  be  too  late  under  §  939, 
ante,  yet,  when  measured  under  the  provis- 
ions of  this  section,  such  appeal  is  valid 
and  in  time,  where  the  record  shows  no 
notice  to  the  appellant  of  the  entry  of 
such  order.  Union  Lumber  Co.  v.  Sunset 
Eoad  Oil  Co.,  17  Cal.  App.  460;  120  Pac. 
44.  The  provisions  of  this  section  are  also 
applicable  to  an  appeal  assumed  to  be 
taken  under  the  older  method;  the  time 
within  which  an  appeal  must  be  taken, 
subject  to  the  limitations  of  the  statute, 
does  not  commence  to  run  until  notice  of 
the  entry  of  the  judgment  or  order  has 
been  given.  Carr  v.  Stern,  17  Cal.  App. 
397;  120  Pac.  35. 

Notice  of  appeal.  An  appeal  may  be 
taken  by  simply  filing  a  notice  of  appeal. 
Mitchell  V.  California  etc.  S.  S.  Co.,  154 
Cal.  731;  99  Pac.  202;  Russell  v.  Banks, 
11  Cal.  App.  450;  105  Pac.  261.  Notice  of 
appeal  is  essential  to  the  taking  of  an 
appeal,  either  under  this  section  or  under 
§  940,  ante:  a  notice  to  the  clork  to  pre- 
pare a  transcript  is  not  a  notice  of  api:)eal. 
Boling  V.  Alton,  162  Cal.  297;  122  Pac. 
461.  Prior  to  the  adoption  of  this  sec- 
tion, it  was  necessary  not  only  to  file  the 
notice  of  appeal  but  to  serve  it.  Davey  v. 
Mulroy,  7  Cal.  App.  1;  93  Pac.  297.  This 
section  does  not  require  service  of  notice 
of  appeal.  Potrero  Nuevo  Land  Co.  v.  All 
Persons,  155  Cal.  371;  101  Pac.  12;  Davey 
V.  Mulrov,  7  Cal.  App.  1;  93  Pac.  297; 
Carr  v.  s'tern,  17  Cal.  App.  397;  120  Pac. 
35.  Notice  of  appeal  must  be  filed,  but 
need  not  be  served.  John  Brickell  Co.  v. 
Sutro,  11  Cal.  App.  460;  105  Pac.  948; 
Mitchell  V.  California  etc.  S.  S.  Co.,  154 
Cal.  731;  99  Pac.  202.  Notice  of  inten- 
tion to  move  for  a  new  trial  must  be  served, 
though  it  is  not  necessary  that  the  filed 
notice  of  appeal  be  served.  Ford  v.  Bras- 
Ian  Seed  Growers  Co.,  10  Cal.  App.  762; 
103  Pac.  946. 

Bequest  for  transcript.  The  appellant, 
in  order  to  avail  himself  of  the  method  of 
appeal  in  §  953a,  post,  must  file  with  the 
clerk  a  request  for  a  transcript  as  provided 


therein.    Thompson  v.  American  Fruit  Co., 
21  Cal.  App.  338;  131  Pac.  878. 

Transcript.  Where  a  party  takes  an  ap- 
peal under  this  section,  he  may  follow  it 
up  by  a  printed  transcript  and  copies 
thereof,  as  required  by  the  rules  of  the 
supreme  court,  or,  at  his  option,  by  filing 
the  typewritten  transcript  authorized  by 
§§  953a,  953b,  and  953c.  Lang  v.  Lillev  & 
Thurston  Co.,  161  Cal.  295;  119  Pac.  100. 
Where  a  transcript  does  not  conform  to 
the  rules  of  the  supreme  court,  it  cannot 
be  filed,  or  the  appeal  be  considered,  ex- 
cept as  to  such  questions  as  may  be  re- 
viewed on  the  judgment  roll  alone,  when 
the  judgment  roll  is  in  a  proper,  separate, 
and  distinct  form  from  the  transcript. 
Eeclamation  District  v.  Sherman,  11  Cal. 
App.  399;  105  Pac.  277. 

Undertaking  not  required.  Fnder  this 
section,  no  undertaking  is  essential  to  the 
jurisdiction  of  the  appellate  court,  al- 
though the  record  may  be  prepared,  accord- 
ing to  the  former  method,  in  the  form  of 
a  bill  of  exceptions,  instead  of  by  the  re- 
porter's transcript  authorized  by  §  953a, 
post.  Union  Collection  Co.  v.  Oliver,  162 
Cal.  755;  124  Pac.  435;  Bohn  v.  Bohn,  159 
Cal.  366;  116  Pac.  567;  Mitchell  v.  Cali- 
fornia etc.  S.  S.  Co.,  154  Cal.  731;  99  Pac. 
202;  Estate  of  McPhee,  154  Cal.  385;  97 
Pac.  878;  Carr  v.  Stern,  17  Cal.  App.  397; 
120  Pac.  35;  Russell  v.  Banks,  11  Cal.  App. 
450;  105  Pac.  261.  No  undertaking  is 
required  on  an  appeal  under  this  section. 
Theisen  v.  Matthai,  165  Cal.  249;  131  Pac. 
747. 

Requirements  in  addition  to  the  giving 
of  notice  under  this  section.  See  note  post, 
§  953a. 

When  evidence  may  be  reviewed.  Where 
an  appeal  is  taken  under  the  alternative 
method,  this  section  and  §  941c,  post,  au- 
thorize the  sufficiency  of  the  evidence  to 
be  reviewed  in  the  same  manner  as  if  the 
appeal  had  been  taken  within  sixty  days 
of  the  entry  of  judgment,  under  §  939, 
ante.  Fraser  v.  Sheldon,  164  Cal.  165;  128 
Pac.  33;  Dennis  v.  Gordon,  163  Cal.  427; 
125  Pac.  1063;  Brown  v.  Coffee,  17  Cal. 
App.  381;  121  Pac.  309.  Where  an  appeal 
is  taken  under  this  section,  within  six 
months  from  the  entry  of  judgment,  the 
evidence  may  be  reviewed,  where  no  notice 
of  the  entrv  of  judgment  was  given. 
Fraser  v.  Sheldon,  164  Cal.  165;  128  Pac. 
33;  Larson  v.  Larson,  15  Cal.  App.  531; 
115  Pac.  340;  Brown  v.  Coffee,  17  Cal. 
App.  381;  121  Pac.  309.  Where  no  notice 
of  the  entry  of  the  judgment  was  served 
upon  the  attorney  for  the  appellant,  within 
sixt}'  days  before  the  taking  of  the  appeal, 
then,  under  this  section  and  §  941c,  post, 
the  suflficiency  of  the  evidence  may  be  re 
viewed  upon  appeal  from  the  judgment. 
Foss  v.  Johnstone,  158  Cal.  119;  110  Pac. 
294.  A  party  who  wishes  to  take  ad-, 
vantage    of   the   fact   that   notice    of   the 


1051  EFFECT   OF  APPEAL — UNDERTAKING — MONE^Y  JUDGMENT.       §§  941c/J4li 

entry  of  judgment  was  aervcil,  for  tlie  pur-  paiicrs,  the  eviiloiifo  taluMi  upon  the  hoar- 
pose  of  preventing  a  consideration  of  tho  ing  of  the  motion,  ami  the  rulinjis  of  the 
evidence  on  appeal  from  the  judument  court  thereon,  certilied  by  tho  trial  juili:e: 
taken  more  than  sixty  days  after  its  entry,  the  clerk  cannot  certify  this  rc.-ord. 
must  show  that  such  notice  was  served  Tliompson  v  American  I'ruit  '.'o.,  21  '"al. 
more  than  sixty  days  before  the  taking  of  App.  .■{;!S;  131  Pac  S7S;  Pouchan  v.  Godcau, 
such  aj'peal;  otherwise  tlic  ap]ieal  will  bo  21  (al.  App.  'Mir);  131  Pac  S7l».  A  suffi- 
considered  as  having  been  taken  under  cient  record  is  made,  bo  far  as  the  notice 
§§941a,  941b,  and  941c.  Dennis  v.  Gordon,  of  ap]>eal  and  the  ju.lgment  roll  are  con 
163  Cal.  427;  125  Pac.  10(13;  Brown  v.  corned,  by  the  clerk's  certificate  "to  their 
Coffee,  17  Cal.  App.  3S3;  121  Pac.  309.  correctness.  Totten  v.  Harlow,  1G5  Cal. 
Certification    of    record.     An    appellant,  37S;  i:;2  Pac.  749. 


in  order  to  a\ail  himself  of  the  alternative  Effect  on  time  to  appeal  of  death  of  Judgment 

method    of   a'ppeal,    must    present   a    tran-  Pl^'"'^'*'^-    ^''':.  "'I'J'  ",-^"'1;  *'"*•  ■!,'■;!!■      „_  ,     a 

.    ^  .J.  '„  •     ^     .•   ^1  Effect  of  death  of  party  pending  appeal.    See 

script  consisting  ot  copies  ot   the  moving  note  49  L.  li.  A.  168. 


§  941c.  Effect  of  appeal.  Appeals  perfected  pursuant  to  the  provisions 
of  the  foregoing  section,  shall  have  the  same  force  and  effect  as  ajipcals 
taken  pursuant  to  the  provisions  of  sections  nine  hundred  and  thirty-nine, 
nine  hundred  and  forty  and  nine  hundred  and  forty-one  of  this  code ;  pro- 
vided, however,  that  any  question  may  be  reviewed  therein,  which  question 
could  be  reviewed  upon  an  appeal  taken  pursuant  to  the  provisions  of  sec- 
tion nine  hundred  and  thirty-nine  of  this  code,  and  within  'sixty  days  of 
the  rendition  of  jud<2:ment. 

Legislation  S  941c.     Added    l)y    Stats.     1907,  See  note  ante,  §  941b. 

p.  754.    See  nnto,  LoKisiation  §  941a.  Record    and    Undertaking.     A    sufficient 

Application  of  section.  This  section  ap-  record  is  made,  so  far  as  the  notice  of  ap- 
plies to  all  apjteals;  but  as  to  probate  ap-  peal  and  the  judgment  roll  are  concerned, 
peals  it  is  limited  in  its  application  by  the  by  the  clerk's  certificate  to  their  correct- 
existence  of  special  provisions  relative  to  ness.  Totten  v.  Barlow.  16.5  Cal.  378;  132 
such  appeals.  Estate  of  Brewer,  156  Cal.  Pac.  749.  No  undertaking  is  required  on 
89;  103  Pac.  4S6.  an   appeal   under  this   section.    Thcisen   v. 

Reviewing    sufficiency   of   the    evidence.  Matthai,  165  Cal.  249;  131  Pac.  747. 

§  942.  Undertaking  on  appeal  from  a  money  judgment.  If  the  appeal 
be  from  a  judgment  or  order  directing  the  payment  of  mpney,  it  does  not 
stay  the  execution  of  the  judgment  or  order  unless  a  written  undertaking 
be  executed  on  the  part  of  the  appellant,  by  two  or  more  sureties,  to  the 
effect  that  they  are  bound  in  double  the  amount  named  in  the  judgment  or 
order;  that  if  the  judgment  or  order  appealed  from  or  any  part  thereof  be 
affirmed,  or  the  appeal  be  dismissed,  the  appellant  M'ill  pay  the  amount 
directed  to  be  paid  by  the  judgment  or  order,  or  the  part  of  such  amount 
as  to  which  the  judgment  or  order  is  affirmed,  if  affirmed  only  in  part,  and 
all  damages  and  costs  which  may  be  awarded  against  the  appellant  upon 
the  appeal,  and  that  if  the  appellant  does  not  make  such  payment  within 
thirty  days  after  the  filing  of  the  remittitur  from  the  supreme  court  in  the 
court  from  which  the  appeal  is  taken,  judgment  may  be  entered  on  motion 
of  the  respondent  in  his  favor  against  the  sureties  for  such  amount,  to- 
gether with  the  interest  that  may  be  due  thereon,  and  the  damages  and 
costs  which  may  be  awarded  against  the  appellant  upon  the  appeal.  If  tho 
judgment  or  order  appealed  from  be  for  a  greater  amount  than  two  thou- 
sand dollars,  and  the  sureties  do  not  state  in  their  affidavits  of  justification 
accompanv'ing  the  undertaking  that  they  are  each  worth  the  sum  specified 
in  the  undertaking,  the  stipulation  may  be  that  the  judgment  to  be  entered 
against  the  sureties  shall  be  for  such  amounts  only  as  in  their  affidavits 
they  may  state  that  they  are  severally  worth,  and  judgment  may  be  entered 


§942 


APPEALS   IX    GENERAL. 


1052 


against  the  sureties  by  the  court  from  which  the  appeal  is  taken,  pursuant 
to  the  stipulations  herein  designated.  When  the  judgment  or  order  ap- 
pealed from  is  made  payable  in  a  specified  kind  of  monej^  or  currency, 
the  judgment  entered  against  the  sureties  upon  the  undertaking  must  be 
made  payable  in  the  same  kind  of  money  or  currency. 


Deposit  in  lieu  of  undertaking.  Ante,  §  941 ; 
post.  §  948. 

Qualification   of  sureties.    Post,  §  1057. 

Specified  kind  of  money.    Ante,  §  667. 

Stay,  where  no  provision  made.    Post,  §  949. 

Legislation  g  942.    1.  Enacted  March  11,  1872; 

based  on  Practice  Act,  §  349  (New  York  Code, 
§  335),  as  amended  by  Stats.  1863,  p.  690.  which 
read:  "If  the  appeal  be  from  a  judgment  or  order 
directing  the  payment  of  money,  it  shall  not  stay 
the  execution  of  the  judgment  or  order,  unless  a 
written  undertaking  be  executed  on  the  part  of 
the  appellant,  by  two  or  more  sureties,  stating 
their  places  of  residence  and  occupation,  to  the 
effect  that  they  are  bound  in  double  the  amount 
named  in  the  judgment  or  order,  that  if  the  judg- 
ment or  order  appealed  from,  or  any  part  thereof, 
be  affirmed,  the  appellant  shall  pay  the  amount 
directed  to  be  paid  by  the  judgment  or  order,  or 
the  part  of  such  amount  as  to  which  the  judg- 
ment or  order  shall  be  affirmed,  if  affirmed  only 
in  part,  and  all  damages  and  costs  which  shall  be 
awarded  against  the  appellant  upon  the  appeal. 
When  the  judgment  or  order  appealed  from  is 
made  payable  in  a  specified  kind  of  money  or  cur- 
rency, the  undertaking  required  by  this  section 
shall  be  drawn  and  made  payable  in  the  same 
kind  of  money  or  currency  specified  in  such 
judgment."  When  §  942  was  enacted  in  1872, 
(1)  "does"  was  substituted  for  "shall"  before 
"not  stay"  ;  (2)  "stating  their  places  of  residence 
and  occupation,"  after  "sureties,"  was  omitted; 
(3)  "or  the  appeal  be  dismissed,"  after  "af- 
firmed," was  added;  (4)  "will"  was  substituted 
for  "shall"  before  "pay";  (5)  "is"  was  substi- 
tuted for  "shall  be"  before  "affirmed";  (6)  "may" 
was  substituted  for  "shall"  before  "be  awarded"  ; 
and  (7)  "must"  was  substituted  for  "shall"  be- 
fore  "be  drawn." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  336. 

Construction  of  section.  The  judgment 
referred  to  in  this  section  is  the  decree 
passing  upon  the  matter  directly  involved 
in  the  litigation:  in  all  other  cases  the 
proceediugs  are  held  in  abeyance  by  virtue 
of  the  statute  itself.  McCallion  v.  Hibernia 
Sav.  &  L.  Soc,  98  Cal.  442;  33  Pae.  329. 
The  words,  "or  the  part  of  such  amount  as 
to  which  the  judgment  or  order  is  affirmed, 
if  affirmed  only  in  part,"  found  in  this 
section,  are  not  in  §  945,  post.  Heinlen  v. 
Beans,  71  Cal.  29.i;  12  Pac.  167. 

Application  of  section.  This  section  is 
applicable  only  to  appeals  from  a  judgment 
or  order  directing  the  payment  of  money. 
Weldon  v.  Rogers,  154  Cal.  632;  9S  Pae. 
1070.  Where  the  fund  over  which  the 
litigation  arose  has  never  been  in  the  pos- 
session of  the  appellants,  but  was  in  the 
custody  of  the  court,  no  undertaking  on 
appeal  to  stay  execution,  under  this  sec- 
tion, is  required.  McCallion  v.  Hibernia 
Sav.  &  L.  Soc,  98  Cal.  442;  33  Pac.  329. 
This  section  does  not  authorize  the  giving 
of  an  undertaking  on  an  appeal  from  an 
order,  not  one  directing  the  payment  of 
money,  to  stay  the  proceedings,  either  on 
the  original  judgment  or  on  the  execution. 
Weldon  v.  Eogers,  154  Cal.  632;  98  Pac. 
1070. 


Money  judgment,  what  constitutes.  This 
section  is  applicable  to  judgments  which 
direct  the  payment,  by  the  defendant,  of 
a  specific  amount  of  money,  and  which  can 
be  directly  enforced  by  a  writ  of  execu- 
tion (Kreling  v.  Kreling,  116  Cal.  458;  48 
Pac.  383),  and  to  judgments  which  require 
the  same  process  for  their  enforcement 
(Foster  v.  Superior  Court,  115  Cal.  279;  47 
Pac.  58) ;  it  refers  solely  to  judgments  in 
personam  for  a  certain  sum  of  money,  and 
jirovides  that  upon  affirmance  on  appeal 
the  sureties  must  pay  the  whole  amount, 
or  have  personal  judgment  entered  against 
them  therefor  (Boob  v.  Hall,  105  Cal.  413; 
38  Pac.  977);  but  it  has  no  application  to 
a  judgment  which  may  be  satisfied  in 
either  of  two  or  more  modes,  or  which  can- 
not be  enforced  against  the  defendant 
until  after  the  plaintiff  has  exhausted 
another  remedy,  and  where  he  is  personally 
liable  for  only  a  deficiency  in  the  proceeds 
of  certain  property  which  is  primarily 
chargeable  therefor;  and  if  the  judgment 
directs  the  sale  of  real  property,  and  the 
defendant  is  liable  only  in  case  of  defi- 
ciency, the  provisions  of  §  945,  post,  con- 
trol. 'Kreling  v.  Kreling,  116  Cal.  458;  4S 
Pac.  383.  An  appeal  from  a  judgment  di- 
recting that  the  plaintifi:  recover  a  certain 
sum  of  money,  and  declaring  such  sum  to 
be  a  lien  on  the  land,  which  is  ordered 
sold,  and  the  proceeds  applied  to  the  judg- 
ment, the  clerk  being  directed  to  docket 
a  judgment  for  any  deficiency,  is  not  within 
this  section;  hence,  an  undertaking  to  stay 
proceedings,  as  provided  herein,  is  not 
required.  Owens  v.  Pomona  Land  etc.  Co.^ 
124  Cal.  331;  57  Pac.  71.  A  judgment  in 
an  action  for  an  accounting  between  part- 
ners, which  adjudges  that  the  plaintiffs 
shall  receive  from  the  defendant  person- 
ally a  certain  sum  of  money,  and  that  the 
defendant's  interest  in  the  property  shall 
be  sold  to  realize  the  amount,  and  if  not 
sufficient,  a  personal  judgment  shall  be 
entered  against  him  for  the  deficiency,  has 
the  effect  of  postponing  the  right  of  the 
plaintiffs  to  a  personal  judgment  and  to 
execution  thereon  until  a  judgment  for  the 
deficiency  is  entered,  and  the  defendant, 
after  an  appeal  from  such  judgment,  with 
an  ordinary  appeal  bond,  is  entitled  to  a 
writ  staying  the  execution  of  the  judgment 
until  the  determination  of  such  appeal. 
Painter  v.  Painter,  98  Cal.  625;  33  Pac.  4S3. 
A  judgment  against  the  owners  of  a  ves- 
sel, foreclosing  liens  against  the  vessel, 
and  providing  for  a  sale  thereof,  with  the 
engines,    apparel,    and   furniture,    and   out 


1053 


STAY   OF   PK(^CEEDINGS — UNDERTAKING    FOR. 


§942 


of  the  proceeds  arising  from  such  s.-ilo  to 
pay  to  the  plaiiitirt'  the  aniouiit  found  due 
him,  is  uot  a  jud^nneut  directiii}^  tlie  I'ay- 
meiit  of  monev,  within  this  section.  Olsen 
V.  Birch,  1  Cal.  A]. p.  9i);  SI  I'ac.  G5(3;  and 
see  Central  Lumber  etc.  Co.  v.  Center,  107 
Cal.  193;  40  Pac.  XU;  Kreliup;  v.  Krelins, 
116  Cal.  458;  48  Pac.  383.  In  order  to 
stay  the  judfjment,  where  there  is  a  per- 
sonal jutlfjnient  in  addition  to  a  decree 
directinif  a  sale  of  the  jiroperty,  in  an  ac- 
tion by  a  vendor  against  his  vendee,  au 
undortakinuf  on  appeal  must  bo  executed, 
under  this  section.  Eutjluud  v.  Lewis,  25 
Cal.  337.  A  judifment  for  costs  is  not  a 
judgment  directing^  the  payment  of  money 
con.temi)lated  by  this  section,  and  a  stay 
bond  is  uot  required,  in  order  to  restrain 
the  issuance  of  an  execution  to  recover 
such  costs:  the  appeal  bond  effects  that 
object.  McCallion  v.  Hibernia  Sav.  &  L. 
So'c,  98  Cal.  442;  33  Pac.  329.  An  order 
denying  a  motion  to  strike  out  a  cost-bill 
is  not  an  order  <lirectiug  the  payment  of 
money,  within  this  section;  and  au  under- 
taking executed  in  double  the  amount  of 
the  cost-bill,  upon  ai>peal  from  such  order, 
by  the  defendant,  has  no  statutory  au- 
thority, and  cannot  operate  to  stay  execu- 
tion ;  and  the  plaintiff  is  not  entitled  to 
judgment  against  the  sureties  thereon, 
upon  motion,  that  being  a  summary  remedy 
created  by  statute,  and  ap[)licable  only  to 
undertakings  allowed  bv  it.  Heav  v.  But- 
ler, 118  Cal.  113;  50  Pac.  375.  An  order 
that  an  original  judgment  be  carried  into 
execution  is  not  one  directing  the  payment 
of  money,  and  this  section  does  not  au- 
thorize the  giving  of  an  undertaking,  on 
ajipeal,  to  stay  proceedings.  Weldon  v. 
Kogers,  154  Cal.  G32;  98  Pac.  1070. 

Stay  of  proceedings  allowed  when.  The 
stay  of  execution  on  a  judgment  for  the 
payment  of  money,  under  this  section,  is 
only  allowed  on  an  appeal  from  the  judg- 
ment, and  on  giving  the  undertaking  in 
double  amount,  as  required  by  this  sec- 
tion; hence,  this  section  does  not  apply  to 
an  appeal  from  an  order  made  after  a  final 
judgment  denying  a  motion  to  set  aside  an 
execution.  Carit  v.  Williams,  67  Cal.  5S0; 
8  Pac.  93;  Weldon  v.  Rogers,  154  Cal.  632; 
98  Pac.  1070.  A  stay  bond,  given  on  au 
appeal  from  an  order  denying  a  new  trial, 
has  the  effect  of  staying  execution  on  the 
judirment  (Fulton  v.  Hanna,  40  Cal.  278; 
Baldwin  v.  Superior  Court,  125  Cal.  584;  58 
Pac.  185;  Holland  v.  McDade,  125  Cal.  353; 
58  Pae.  9;  Starr  v.  Kreuzberger,  131  Cal. 
41;  63  Pac.  134),  though  there  is  no  appeal 
from  the  judgment.  Baldwin  v.  Superior 
Court,  125'Cal.  584;  58  Pac.  185.  The  exe 
cution  of  a  judgment  in  unlawful  detainer, 
where  the  jiayment  of  a  specified  sum  of 
money  is  directed,  cannot  bo  stayed,  unless 
an  undertaking  on  appeal  is  given,  as  i)ro- 
vided  by  this  section;  hence,  an  appeal 
from  an  order,  made  after  judgment,  vacat- 


ing an  order  for  the  satisfaction  of  a  judg- 
ment, does  not  authorize  the  issuance  of 
a  writ  of  supersedeas.  Bateman  v.  Superior 
Court,  139  Cal.  141;  72  I'ac.  922.  A  judg- 
ment against  the  sureties  on  an  undertak- 
ing on  a|)peal  to  stay  execution,  executctl 
under  this  section,  does  uot  have  the  effect 
of  staying  execution  of  the  judgment, 
where  the  undertaking  required  shoulil 
have  been  executed  under  §  945,  post. 
Central  Lumber  etc.  Co.  v.  Center,  107 
Cal.  193;  4(J  Pac.  334.  After  an  appeal  is 
perfected  from  a  judgment  of  the  superior 
court,  that  court  has  no  general  power  to 
stay  execution,  though,  if  execution  has 
been  stayed  according  to  the  statute,  it 
has  jiower  to  compel  the  sheriff  to  respect 
and  observe  such  stay.  Mannix  v.  Superior 
Court,  157  Cal.  730;  109  Pac.  264.  The 
supreme  court  cannot  grant  a  stay  of  exe- 
cution upon  a  final  judgment  not  ai)pealed 
from,  though  there  is  an  a|)peal  from  an 
oriler  ma<le  after  such  judgment.  Carit  v. 
Williams,  (17  (  al.  5SU;  S  Pac.  93. 

Stay  of  proceedings.  See  also  note  post, 
§  94!t. 

Effect  of  dismissal  of  appeal  on  stay. 
The  dismissal  of  an  a]»peal  from  the  judg- 
ment cannot  change  the  effect  of  the  stay 
of  execution  effected  by  the  undertaking 
given  on  the  appeal  from  the  order  deny- 
ing a  new  trial.  Fulton  v.  Hanna,  40  Cal. 
278;  Tompkins  v.  Montgomery,  116  Cal. 
120;  47  Pac.  1006;  Starr  v.  Kreuzberger, 
131  Cal.  41;  63  Pac.  134. 

Nature  of  undertaking.  An  undertak- 
ing in  the  form  of  and  jmrporting  to  be  an 
undertaking  to  stay  execution,  as  provided 
in  this  section,  must  not  be  consiiiered  as 
the  undertaking  on  appeal  required  by 
§§  940,  941,  ante.  Duflfy  v.  Greenebaum, 
72  Cal.  157;  12  Pac.  74. 

Undertaking  on  appeal  from  justice's 
court.    See  note  i>ost,  §  97S. 

Execution  of  undertaking.  It  is  essen- 
tial to  the  vali<iity  of  an  undertaking  to 
stay  execution  of  a  money  judgment,  that 
it  be  signed  by  the  judgment  debtor.  Wel- 
don v.  Rogers,  154  Cal.  632;  98  Pac.  1070. 

Amount  of  undertaking.  On  appeal  from 
an  order  denying  a  motion  for  a  new  trial, 
after  a  money  judgment,  an  undertaking 
in  double  the  amount  of  the  judgment  may 
be  given,  under  this  section,  and  execution 
on  the  judgment  will  be  stayed  thereby, 
pending  such  appeal.  Weldon  v.  Rogers, 
154  Cal.  632;  98  Pac.  1070.  An  order  direct- 
ing the  jiayment  of  alimony  and  counsel 
fees  is  properly  stayed  by  an  undertaking, 
under  this  section,  in  double  the  amount 
of  the  lumji  sums  and  double  the  amount 
of  the  monthly  payments  for  a  period  of 
three  years.  Sharon  v.  Sharon.  67  Cal.  1S5; 
7  Pac.  456.  Where  the  ordinary  bond  on 
appeal  is  sufhcient  to  stay  execution,  a 
stay  bond,  given  under  this  section  in 
double  the  amount  found  due,  is  void. 
Olsen  V.  Birch,  1  Cal.  App.  99;  81  Pac.  656. 


§942 


APPEALS   IN   GENERAL. 


1054 


Time  of  filing.  An  undertaking  on  ap- 
peal to  stay  execution  may  be  filed  at  any 
time  after  the  appeal  is  taken,  and  before 
the  execution  is  satisfied.  Hill  v.  Finnigan, 
54Ca].493. 

Undertakings  not  required  on  appeal  in 
certain  actions.  An  undertaking  for  the 
stay  of  execution  of  an  order  of  sale  upon 
appeal  from  a  decree  foreclosing  a  mort- 
gage cannot  be  given,  under  this  section 
(Boob  V.  Hall,  105  Cal.  413;  38  Pac.  977); 
nor  an  undertaking  upon  appeal  from  a  de- 
cree foreclosing  a  mechanic's  lien  (Central 
Lumber  etc.  Co.  v.  Center,  107  Cal.  193; 
40  Pac.  334) ;  nor  an  undertaking  upon  ap- 
peal in  an  action  of  claim  and  delivery. 
Churchill  v.  More,  7  Cal.  App.  767;  96  Pac. 
108.  A  decree  in  partition  proceedings 
may  be  stayed  without  an  undertaking  on 
appeal,  under  this  section.  Born  v.  Horst- 
mann,  SO  Cal.  452;  5  L.  E.  A.  577;  22  Pac. 
169;  Estate  of  Kennedy,  129  Cal.  384;  62 
Pac.  64.  An  appeal  from  a  judgment  upon 
the  contest  of  an  election  for  directors  of 
a  railroad  company,  is  not  within  this  sec- 
tion: all  proceedings  upon  the  judgment 
are  stayed  by  the  ordinary  appeal  bond. 
Foster  v.  Superior  Court,  115  Cal.  279;  47 
Pac.  58. 

Probate  appeals,  undertaking  on.  Upon 
an  appeal  from  an  order  appointing  an  ad- 
ministrator, an  undertaking  on  appeal, 
under  §  941,  ante,  stays  all  proceedings 
upon  the  order  appealed  from.  Estate  of 
"Woods,  94  Cal.  566;  29  Pac.  1108.  An 
order  requiring  an  administrator  to  pay 
money  for  a  family  allowance  may  be 
stayed  without  an  undertaking  under  this 
section.  Pennie  v.  Superior  Court,  89  Cal. 
31;  26  Pac.  617.  A  decree  of  distribution, 
appealed  from  by  the  legatee,  is  not  within 
this  section.  Estate  of  Schedel,  69  Cal. 
241;  10  Pac.  334.  Provisions  authorizing 
or  requiring  stay  bonds  do  not  apply  to  a 
decree  of  distribution.  Estate  of  Kennedy, 
129  Cal.  384;  62  Pac.  64. 

New  undertaking.  Where  the  surety  on 
an  undertaking  on  appeal  to  stay  execu- 
tion disposes  of  his  property  pending  the 
appeal,  the  filing  of  a  new  undertaking  can- 
not be  required.  Maeomber  v.  Conradt,  4 
Cal.  Unrep.  723;  37  Pac.  382. 

Rights  and  liabilities  of  sureties.  The 
sureties,  by  signing  the  undertaking  on 
appeal  to  stay  execution  under  this  sec- 
tion, submit  themselves  to  the  jurisdiction 
of  the  court,  and  waive  any  constitutional 
or  statutory  right  to  object  to  such  juris- 
diction or  to  the  enforcement  of  such  se- 
curity. Meredith  v.  Santa  Clara  Mining 
Ass'n,  60  Cal.  617.  Although,  by  entering 
into  an  undertaking  on  appeal,  the  sureties 
are  brought  under  the  jurisdiction  of  the 
court,  yet  they  are  not  thereby  made  actors 
in  the  litigation,  nor  entitled  to  any  part 
in  its  conduct;  and  the  party  to  whom  they 
have  given  the  undertaking  is  not  required 
to  give  them  notice  of  any  steps  in  proce- 


dure  to   be   taken   against   the   defendant, 
but  they  are  bound,  equally  with  him,  by 
any  order  which  may  be  made  between  the 
real   parties   in   the   action.     Hitchcock   v. 
Caruthers,  100  Cal.  100;  34  Pac.  627.     The 
sureties,  on  a  joint  appeal  by  two  defend- 
ants,   are   liable   on    their   undertaking    to 
stay  execution,  on  affirmance  of  the  judg 
ment  as  to  one  of  the  defendants,  tli'^uc'h 
the  judgment  is  reversed  as  to  the  other, 
and  hence    judgment  is  projicriy  rendere(l 
against   them    on    the    undertaking.     Wood 
V.    Orford,    56    Cal.    157.     The    obligation 
upon  the  sureties,  upon  an  undertaking  to 
stay  execution  pending  an  appeal,  to  pay 
the  judgment  in  ease  of  the  default  of  the 
defendant,  is  absolute,  and  continues  until 
the  judgment  is  actually  paid;   and  when 
the  judgment  has  been  revived  against  the 
defendant,  under  §  708,  ante,  after  having 
been  satisfied  by  the  purchase  of  property 
under  execution,  which  belonged  to  a  third 
party,   and   was   recovered   by   such   third 
party,   the   sureties   are   liable   to   pay   the 
amount   of  such  revived  judgment,   and  a 
new    judgment    may    be    entered    against 
them  for  such  amount,  upon  notice  to  them, 
unless   they   can   show   that   the   judgment 
was  properly  satisfied  and  that  the  satis- 
faction was  not  properly  set  aside.    Hitch- 
cock V.   Caruthers,   100   Cal.    100;   34   Pac. 
627.    'Where  the  judgment  from  which  an 
appeal  is  taken  is  not  such  as  calls  for  the 
giving   of   an   undertaking  to   stay   execu- 
tion, the  sureties  on  such  an  undertaking 
are  not  liable  thereunder,  it  being  without 
consideration.    McCallion  v.  Hibernia  Sav. 
&  L.   Soc,  98   Cal.  442;   33   Pac.  329;   and 
see  Powers  v.  Crane,  67  Cal.  65;  7  Pac.  135. 
A    special   stay   bond,    given    upon    appeal 
from  a  decree  of  distribution,  is  without 
consideration,   arising  from   the   fact   that 
the  undertaking  does  not  stay  the  decree, 
and  no   recovery   can   be  had   against   the 
sureties.    Estate  of  Kennedy,  129  Cal.  384; 
62  Pac.  64. 

Judgment  against  sureties  upon  motion. 
The  statute  permitting  judgment  to  be  en- 
tered, on  motion,  against  the  sureties  on 
undertakings  on  appeal,  after  affirmance 
of  the  judgment,  is  constitutional.  Ladd 
V.  Parnell,  57  Cal.  232;  Meredith  v.  Santa 
Clara  Mining  Ass'n,  60  Cal.  617.  This  sec- 
tion is  the  only  statute  authorizing  the 
rendition  of  judgment  upon  motion;  and  a 
recovery  upon  any  bond,  other  than  one 
covered  by  this  section,  as  in  claim  and 
delivery,  must  be  by  action.  Churchill  v. 
More,  7  Cal.  App.  767;  96  Pac.  108;  United 
States  Fidelity  Co.  v.  More,  155  Cal.  415; 
101  Pac.  302.  Where  an  undertaking  on 
appeal  to  stay  execution  has  no  validity  as 
a  statutory  undertaking,  a  motion  for  a. 
judgment  thereon,  against  the  sureties, 
should  be  denied,  even  if  shown  to  be  sup- 
ported by  a  consideration,  and  to  be  good 
as  a  common-law  bond.  Central  Lumber 
etc.   Co.  V.   Center,   107   Cal.   193;   40  Pac. 


1055 


SURETIES — JUDGMENT  FOR  DELIVERY   OF  DOCUMENTS. 


§943 


334;  and  see  Powers  v.  Chabot,  93  Cal.  200; 
28  Pac.  1070;  McCallion  v.  Ilibcrnia  Sav. 
&  L.  Soc,  9S  Cal.  -422;  33  Pac.  329.  Ser- 
vice of  the  oripiiial  notice  and  aflidavit,  on 
application  Tor  jud^Mnont  at^ainst  tlio  sure- 
ties on  an  undcrtakinfj  on  appeal  to  stay 
execution,  on  return  of  remittitur,  is  im- 
material error,  the  defemlants  not  liaviuf^ 
been  misled.  Wood  v.  Orford,  50  Cal.  1.17. 
Notice  of  the  motion  for  judgment  against 
the  sureties,  where  the  appellant  does  not 
pay  the  amount  of  the  judgment  or  order 
within  thirty  days  after  the  filing  of  the 
remittitur,  is  not  required:  the  sureties 
stipulate  in  the  undertaking  that  judg- 
ment may  be  so  entered.  Meredith  v.  Santa 
Clara  Mining  Ass'n,  GO  Cal.  617;  Mowry 
V.  Ileney,  3  Cal.  Unrep.  277;  2-1  Pac.  301. 
A  judgment  against  only  one  of  the  sure- 
ties on  an  undertaking  on  appeal,  under 
this  section,  no  reason  appearing  why  the 
other  was  not  joined,  except  that  he  could 
not  be  found  and  served  with  notice,  is 
erroneous:  the  provision  for  a  judgment 
"against  the  sureties"  must  be  strictly  pur- 
sued. Hansen  v.  Martin,  03  Cal.  282."^  The 
entry  of  judgment  against  the  sureties 
upon  an  undertaking  on  api^eal  to  stay  exe- 
cution, is  not  a  special  proceeding,  but  is  a 
part  of  the  procedure  in  the  original  action 
authorized  by  this  section,  and  is  in  se- 
quence of  the  judgment  rendered  against 
the  appellant;  and  the  reversal  of  a  judg- 
ment against  the  sureties,  because  prema- 
turely entered,  does  not  affect  or  im]iair 
their  obligation  on  the  undertaking;  and 
the  plaintiff  is  still  entitled  to  enforce  that 
obligation  by  a  pro]>er  motion  for  judg- 
ment against  them.  Hawlev  v.  Gray  Bros., 
127  Cal.  500;  00  Pac.  437. 

Effect  of  stipulation  by  sureties  allow- 
ing judgment  against  themselves.  A 
stipulation  by  sureties,  inserted  in  an 
undertaking  on  appeal,  that  judgment  may 
be  entered  against  them  in  case  the  order 
recited  in  such  undertaking  shall  be  af- 
firmed, cannot  render  them  liable,  since  the 
undertaking  rests  for  its  efficiency  on  the 
statute  alone,  and  as  the  undertaking  was 
ineffectual  as  a  stay,  because  made  in  a 
case  not  provided  for  by  statute,  the  con- 
sent of  the  sureties  to  summary  judgment 
against  themselves  is  likewise  ineffectual. 
Reay  v.  Butler,  118  Cal.  113;  50  Pac.  375. 
A  stipulation  by  sureties,  that,  upon  the 
affirmance  of  the  judgment  appealed  from, 

§  943.  Appeal  from  a  judgment  for  delivery  of  documents.  Tf  the  jndcr- 
ment  or  order  appealed  from  direct  tlie  assii^nment  or  delivery  of  documents 
or  personal  property,  the  execution  of  the  judgment  or  order  cannot  be 
stayed  by  appeal,  unless  the  things  required  to  be  assigned  or  delivered 
be  placed  in  the  custody  of  such  officer  or  receiver  as  the  court  may  appoint, 
or  unless  an  undertaking  be  entered  into  on  the  part  of  the  appellant,  with 
at  least  two  sureties,  and  in  such  amount  as  the  court,  or  a  judge  thereof, 
may  direct,  to  the  effect  that  the  appellant  will  obey  the  order  of  the  appel- 


if  ai>pellant  does  not  i>ay  the  amount  of 
such  judgment  within  sixty  <lays  after  the 
filing  of  the  remittitur,  jinigineiit  may  l»o 
entered  against  them  for  the  same,  makes 
them  jiarties  to  the  original  action,  and  tho 
procee<lings  against  them  are  all  taken  in 
that  action.  Ilawley  v.  Grav  Bros.,  127 
Cal.  .'0(1;  i\\)  I'nr.  \:>,7. 

Who  may  recover  against  sureties.  Tho 
assignee  of  a  judgment  cannot  recover  on 
the  undertaking  given  to  stay  the  proceed- 
ings, where  he  is  not  also  the  assignee  of 
tho  undertaking.  Chilstrom  v.  Ei)pinger, 
127  Cal.  320;  78  Am.  St.  Kep.  46;  59  I'ac. 
GOO. 

Effect  of  reversal.  Reversal  on  afipeal 
from  an  order  denying  a  new  trial,  and  re 
manding  the  cause  for  retrial,  as  etTec- 
tually  vacates  the  judgments  as  does  a 
reversal  of  the  judgment  ujion  a  <lirect  ap- 
peal therefrom.  Fulton  v.  Ilanna,  40  Cal. 
278. 

Construction  of  condition  in  appeal  bond  re- 
quiring sureties  to  pay  judgment  of  appellate 
court.    See  note  5  Ann.  Cas.  9o. 

CODE   COMMISSIONERS'  NOTE.      If.   on   ap- 

po.'il  from  an  orili  r  ilinyiiit:  a  new  trial,  a  full 
uiidiitakinK  on  ap|i>.il,  as  iirovidod  in  §  349  of 
the  Practice  Act  (§942  of  thi.s  rode),  is  given, 
it  stays  execution  on  the  judKmcnt.  Fulton  v. 
Ifanna,  40  Cal.  278.  An  appeal  will  not  be 
dismissed  for  insufficiency  in  the  justification  of 
the  sureties  on  the  undertaking,  where  the  un- 
dertaking was  both  to  render  the  appeal  effectual 
and  to  stay  execution,  and  the  justification  was 
sufTicient  for  the  former  purpose.  Dobbins  v. 
Dollarhide,  15  Cal.  374.  The  undertaking  on 
appeal  providing  for  the  liability  of  the  sureties 
upon  the  condition  of  the  atlirmance  of  the  judg- 
ment, operates  as  a  stay.  If  by  mere  neglect 
to  prosecute  the  appeal,  and  for  that  reason  it 
should  be  dismissed,  it  would  work  manifest  in- 
justice to  the  respondent  if  he  should  be  deprived 
of  his  rights  under  the  judgment.  This  result 
would,  liowever,  necessarily  follow,  if  the  sure- 
ties could  be  released  upon  the  pretense  that 
the  judgment  was  not  affirmed.  In  many  in- 
stances this  would  encourage  a  fraud  upon  the 
respondents.  Karth  v.  Light,  1.5  Cal.  327:  Cham- 
berlin  v.  Reed,  16  Cal.  207;  Chase  v.  Bcraud, 
29  (,'al.  1.^.8.  This  section  of  the  code  conforms 
in  lanLTUage  to  tlie  rule  of  the  cases  cited  supra. 
In  foreclosure  cases,  if  a  judgment  in  personam 
is  rendered  against  the  defendants,  and  also  one 
enforcing  the  lien,  and  an  appeal  is  taken  from 
the  whole  judgment,  in  order  to  stay  proceedings 
upon  the  judgment,  the  appellant  must  file  an 
undertaking  for  costs,  one  in  double  the  amount 
of  the  personal  judgment,  and  one  for  the  pay- 
ment of  waste  and  such  deficiency  as  may  re- 
main due  after  the  sale  of  the  property,  and  all 
these  undertakings  may  be  in  one  instrument, 
or  several,  at  the  option  of  the  appellant.  Eng- 
lund  V.  Lewis,  25  Cal.  356. 


§943 


APPEALS    IN   GENER^Uj. 


1056 


late  court  upon  the  appeal.  If  the  judgment  or  order  appealed  from  ap- 
point a  receiver,  the  execution  of  the  judgment  or  order  cannot  be  stayed 
by  appeal,  unless  a  written  undertaking  be  executed  on  the  part  of  the 
appellant,  with  two  or  more  sureties,  to  the  effect  that  if  such  judgment  or 
order  be  affirmed  or  the  appeal  dismissed,  the  appellant  will  pay  all  dam- 
ages which  the  respondent  may  sustain  by  reason  of  such  stay,  not  exceed- 
ing an  amount  to  be  fixed  by  the  judge  of  the  court  by  which  the  judgment 
was  rendered  or  order  made,  which  amount  must  be  specified  in  the  under- 
taking. If  the  judgment  or  order  appealed  from  direct  the  sale  of  per- 
sonarproperty  upon  the  foreclosure  of  a  mortgage  thereon,  the  execution 
of  the  judgment  or  order  cannot  be  stayed  on  appeal,  unless  an  undertak- 
ing be  entered  into  on  the  part  of  the  appellant,  with  at  least  two  sureties, 
in'such  amount  as  the  court,  or  the  judge  thereof,  may  direct,  to  the  effect 
that  the  appellant  will,  on  demand,  deliver  the  mortgaged  property  to  the 
proper  officer  if  the  judgment  be  affirmed,  or  in  default  of  such  delivery 
that  the  appellant  and  sureties  will,  on  demand,  pay  to  the  proper  officer 
the  full  value  of  such  property  at  the  date  of  the  appeal. 

directed  to  do  some  act  for  the  benefit  of 
the  respondent,  and  where  it  vrould  be 
unjust  to  allow  the  appellant  to  retain  the 
possession  of  the  property  without  secur- 
ing the  respondent  by  a  bond.  Eohrbacher 
V.  Superior  Court,  144  Cal.  631;  78  Pae.  22. 
A  judgment  in  replevin  requires  an  under- 
taking on  appeal,  although  a  redelivery 
bond  was  given  in  the  action;  hence, 
supersedeas  will  not  be  issued,  where  the 
undertaking  required  by  this  section  was 
not  given.  Swasey  v.  Adair,  88  Cal.  203; 
26  Pae.  83.  The  only  bond  required  to 
stay  execution  upon  appeal  is  the  one  pre- 
scribed by  this  section;  and  an  indemnity 
bond  to  stay  execution  upon  appeal,  in 
claim  and  delivery,  not  conditioned  as  pre- 
scribed in  this  section,  but  conditioned 
under  §  942,  ante,  is  without  consideration. 
United  States  Fidelity  etc.  Co.  v.  More, 
155  Cal.  415;  101  Pae.  302.  Money,  under 
this  section,  is  not  included  in  the  term 
"personal  property":  this  section  does  not 
apply  to  an  appeal  taken  by  a  legatee  from 
a  decree  of  distribution,  where  such  decree 
distributes  certain  moneys  (Estate  of 
Schedel,  69  Cal.  241;  10  Pae.  334;  Estate 
of  Kennedy,  129  Cal.  384;  62  Pae.  64);  but 
where  the  money  is  a  special  fund,  and 
capable  of  identification,  it  will  answer  to 
the  term  "personal  property,"  as  used 
herein.  McCallion  v.  Hiberuia  Sav.  &  L. 
Soc,  98  Cal.  442;  33  Pae.  329.  An  order 
directing  an  insolvent  to  turn  over  to  a 
receiver  goods,  wares,  and  merchandise,  or 
its  avails,  is  a  case  provided  for  by  this 
section,  and  must  be  stayed  by  the  under- 
taking provided  herein:  an  ordinary 
undertaking  for  damages  and  costs  on  ap- 
peal does  not  stav  such  order.  Ex  parte 
Clancy,  90  Cal.  553;  27  Pae.  411.  A  judg- 
ment  determining  the  ownership  of  money 
paid  into  court  does  not  require  an  under- 
taking on  appeal,  as  provided  by  this  sec- 


Receiver.    Ante,  §  564. 

Undertaking.     Ante,  §  941. 

Legislation  §  943.  1.  Enacted  March  11,  1S73  ; 
based  on  Practice  Act,  §  350  (New  York  Code, 
§  336),  -which  read:  "If  the  judgment  or  order 
appealed  from,  direct  the  assignment  or  delivery 
of  documents,  or  personal  property,  the  execution 
of  the  judgment  or  order  shall  not  be  stayed  by 
appeal,  unless  the  things  required  to  be  assigned 
or  delivered,  be  placed  in  the  custody  of  such 
officer  or  receiver  as  the  court  may  appoint;  or 
unless  an  undertaking  be  entered  into,  on  the 
part  of  the  appellant,  with  at  least  two  sureties, 
and  in  such  amount  as  the  court  or  the  judge 
thereof,  or  county  judge,  may  direct,  to  the  ef- 
fect that  the  appellant  will  obey  the  order  of  the 
appellate  court  upon  the  appeal."  When  §  943 
was  enacted  in  1872,  "cannot"  was  substituted 
for  "shall   not"   before   "be   stayed." 

2.  Amended  by  Code  Amdts.  1880,  p.  6, 
(1)  substituting  "a"  for  "the"  before  "judge 
thereof,"  and  (2)  omitting  "or  county  judge"  be- 
fore   "raav    direct." 

3.  Amended  by  Stats.  1897,  p.  56. 

Construction  of  section.  This  section  re- 
lates only  to  a  case  where  an  appeal  has 
been  taken,  and  has  to  do  only  with  the 
matter  of  staying  execution  after  appeal; 
hence,  a  petition  for  a  writ  of  mandate 
directing  a  judge  of  the  superior  court  to 
fix  the  amount  of  a  stay  bond  on  appeal 
from  an  order  appointing  a  receiver,  which 
does  not  show  that  an  appeal  has  been 
taken  as  provided  in  this  section,  but 
merely  states  that  the  petitioner  is  de- 
sirous of  appealing  from  such  order,  is 
insufficient.  Leonis  v.  York,  140  Cal.  333; 
73  Pae.  1058.  The  judgment  referred  to 
in  this  section  is  the  decree  passing  upon 
the  matter  directly  involved  in  the  litiga- 
tion: in  all  other  cases  the  proceedings  are 
held  in  abeyance  by  virtue  of  the  statute 
itself.  AlcCallion  v.  Hibernia  Sav.  &  L. 
Soc,  9S  Cal.  442;  33  Pae.  329. 

Assignment  or  delivery  of  personal  prop- 
erty. This  section  applies  to  cases  where 
the  appellant  has  money  or  other  property 
in  his  possession  which  has  been  adjudged 
by  the  lower  court  to  belong  to  the  re- 
spondent, or  where  the  appellant  has  been 


1057 


JUDGMENT   DIRECTING    CONVEYANCE — UNDERTAKING.         §§944,945 


tion.  McCallion  v.  Hibcrnia  Sav.  &  L.  Soc, 
98  Cal.  442;  Xi  Pac.  ;;2il.  WIutc  tho  ,iuil«- 
ment  appealiMl  from  dirocta  the  delivery  of 
■  both  real  ami  jiersoiial  property,  it  is  the 
duty  of  the  trial  court  to  fix  the  amount  of 
the  bond  to  be  given  to  obtain  a  stav; 
Doudell  V.  Shoo,  158  Cal.  50;  109  Pac.  615; 
159  Cal.  448;  114  Pac.  579;  Clute  v.  Su- 
perior Court,  155  Cal.  15;  132  Am.  St.  Rep. 
54;  99  Pac.  3U2;  Winsor  Pottery  Works  v. 
Superior  Court,  13  Cal.  App.  3G();  109  Pac. 
843;  Gordan  v.  Graham,  153  Cal.  297;  95 
Pac.  145. 

Order  appointing  receiver.  An  order  ap- 
pointing a  receiver  can  be  stayed  only  by 
the  filing  of  a  special  bond.  Coburn  v. 
Hynes,  KH  Cal.  (iS5 ;  120  Pnc.  2(3. 

Foreclosure  sale  of  personal  property.  A 
decree  directing  the  sale  of  pledged  prop- 
erty, on  foreclosure  of  the  pledge,  is  not 
within  this  section:  the  pledged  jiroperty  is 
in  the  possession  of  the  plaintiff,  and  no 
delivery  is  required.  Rohrbacher  v.  Su- 
perior Court,  144  Cal.  631;  78  Pac.  22. 
A  judgment  foreclosing  liens  on  personal 
property,  described  thetein  as  "plaintiff's 
mortgage  and  lien"  and  "intervener's  mort- 
gage and  lien,"  and  declaring  that  "such 
mortgages  and  liens  are  the  ones  de- 
scribed in  the  complaint,"  is  within  this 
section,  and  cannot  be  stayed  without  an 
undertaking  on  appeal:  the  ordinary  three- 
hundred-dollar  undertaking  does  not  war- 
rant a  supersedeas.  Telle  v.  Heydenfeldt, 
138  Cal.  56;  70  Pac.  1013.  A  judgment 
foreclosing  liens  against  a  vessel,  and  di- 
recting the  sale  thereof,  and  her  engines, 
apparel,    etc.,    and    out    of    the    proceeds 


of  the  sale  to  fiay  the  plaintiff  the  amount 
found  due  him,  is  not  a  ju<lgment  directing 
the  assignment  or  delivery  of  jiersonul 
jiru[)erty  upon  the  forerlosure  of  a  mort- 
gage thereon,  within  this  sertion.  Olsen  v. 
Birch,  1  Cal.  Ai)p.  99;  SI  Pac.  656. 

Decree  in  partition.  A  decree  in  j'arti- 
tion  is  not  stayed  by  an  undiTtaking  under 
this  section.  Born  v.  Horstmann,  SO  Cal. 
452;  5  L.  R.  A.  577;  22  Pac.  169. 

Probate  orders.  An  order  appointing  an 
administrator  is  not  stayed  by  an  untler 
taking  under  this  section:  §941,  ante,  n|»- 
jdies  in  such  case  (Estate  of  Woods,  91  Cal. 
566;  29  Pac.  11  OS);  nor  is  an  order  direct- 
ing the  payment  of  a  family  allowance 
stayed  by  an  undertaking  taken  under  this 
section.  §  941,  ante,  applying  also  in  this 
case.  Pennie  v.  Superior  Court,  89  Cal.  31; 
26  Pac.  617. 

Who  may  give  undertaking.  One  who  has 
the  right  to  appeal  from  a  judgment  has 
also  the  right  to  give  an  undertaking  to 
stay  its  execution.  Winsor  Pottery  Works 
V.  'Superior  Court,  13  Cal.  App.  360;  1U9 
Pac.  843. 

Condition  of  undertaking.  The  condition 
of  the  undertaking  under  this  section  is  not 
that  judgment  may  be  taken  on  motion:  an 
action  is  a  necessary  basis  for  judgment. 
United  States  Fidelitv  etc.  Co.  v.  More,  155 
Cal.  415;  101  Pac.  302." 

Mandamus  to  compel  fixing  amount. 
The  trial  judge  may  be  compelled,  by 
mandamus,  to  fix  the  amount  of  the  under- 
taking. Winsor  Pottery  Works  v.  Superior 
Court,  13  Cal.  App.  360;'l09  Pac.  843. 

Stay  of  proceedings.   See  note  post,  §  949. 


§  944.     Appeal  from  a  judgment  directing  execution  of  a  conveyance,  etc. 

If  the  judgment  or  order  appealed  from,  direct  the  execution  of  a  convey- 
ance or  other  instrument,  the  execution  of  the  judgment  or  order  cannot  be 
stayed  by  the  appeal  until  the  instrument  is  executed  and  deposited  with 
the  clerk  with  whom  the  judgment  or  order  is  entered,  to  abide  the  judg- 
ment of  the  appellate  court. 


Legislation  8  944.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  351),  substituting 
"cannot"   for   "shall  not." 

Construction  of  section.  The  judgment 
referred  to  in  this  section  is  the  decree 
passing  upon  the  matter  directly  involved 
in  the  litigation:  in  all  other  cases  the  pro- 
ceedings are  held  in  abeyance  by  "\  irtue 
of  the  statute  itself.    McCallion  v.  Hibernia 


Sav.  &  L.  Soc.  9«!  Pal.  442;  33  Pac  329. 

Decree  of  distribution.  Provisions  au- 
thorizing or  requiring  stay  lionds  do  not 
apply  to  an  appeal  from  a  decree  of  dis 
tribution.  Estate  of  Kennedv,  129  Cal.  384; 
62  Pac.  64;  Estate  of  Schedel,  69  Cal.  241; 
10  Pac.  334. 

Stay  of  proceedings.    See  note  post,  §  949. 


§945.  Undertaking  on  appeal  concerning  real  property.  If  the  judg- 
ment or  order  appealed  from,  direct  the  sale  or  delivery  of  possession  of 
real  property,  the  execution  of  the  same  cannot  be  stayed,  unless  a  written 
undertaking  be  executed  on  the  part  of  the  appellant,  with  two  or  more 
sureties,  to  the  effect  that  during  the  possession  of  such  property  by  the 
appellant,  he  will  not  commit,  or  suffer  to  be  committed,  any  waste  thereon, 
and  that  if  the  judgment  be  affirmed,  or  the  appeal  dismissed,  he  will  pay 
the  value  of  the  use  and  occupation  of  the  property  from  the  time  of  the 

1  Fair. — 67 


§945 


APPEALS   IN   GENERAL. 


1058 


appeal  until  the  delivery  of  possession  thereof,  pursuant  to  the  judgment  or 
order,  not  exceeding  a  sum  to  be  fixed  by  the  judge  of  the  court  by  which 
the  judgment  was  rendered  or  order  made,  and  which  must  be  specified  in 
the  undertaking.  When  the  judgment  is  for  the  sale  of  mortgaged  prem- 
ises, and  the  payment  of  a  deficiency  arising  upon  the  sale,  the  undertak- 
ing must  also  provide  for  the  payment  of  such  deficiency. 

Mortgaged  realty,  sale  or  delivery  of  possession       the   commission  of  waste,  is  insufficient  to 


of.     Ante,  §§  726,  744. 

Deposit  with  clerk.    Ante,  §  941;   post,  §  948. 
Undertaking,  how  executed.    Ante,  §  941. 
Qualifications   of  sureties.    Post,  §  1057. 
Waste.    Ante,  §§  745,   746. 

Legislation  §  945.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  352  (New  York  Code, 
§338),  (1)  substituting  "cannot"  for  "shall  not," 
(2)  inserting  "or  the  appeal  dismissed"  after  "af- 
firmed," and  (3)  substituting  "must"  for  "shall" 
before  "be  specified"  and  before  "also  provide." 

Construction  of  section.  This  section  in- 
cludes orders  as  well  as  judgments;  and 
the  provision  herein,  in  regard  to  use  and 
occupation,  refers  to  cases  in  which  the 
creditor  is  entitled  to  the  use,  and  more 
particularly  to  judgments  and  orders  di- 
recting a  delivery  of  the  possession.  Whit- 
ney V.  Allen,  21  Cal.  233.  This  section 
provides  for  two  distinct  undertakings, 
upon  two  kinds  of  judgments:  one  direct- 
ing a  sale  of  real  proi)erty,  and  the  other 
directing  a  delivery  of  the  possession  of 
real  property.  Englund  v.  Lewis,  2.5  Cal. 
337.  An  undertaking  for  costs  and  dam- 
ages, upon  an  appeal  from  a  judgment  for 
the  foreclosure  of  a  mechanic's  lien  and 
the  sale  of  the  property  subject  thereto, 
taken  by  a  lien-holder  not  in  possession  of 
the  land,  whose  lien  was  adjudged  sub- 
ordinate to  the  lien  foreclosed,  is  properly 
given  under  §  941,  ante,  and  not  under  this 
section.  Boot  v.  Bryant,  51  Cal.  182.  Where 
the  judgment  declares  the  lien  of  a  mort- 
gage subordinate  to  mechanics'  liens,  no 
undertaking  on  appeal  is  required,  except 
that  for  costs.  Pacific  Mutual  Life  Ins.  Co. 
V.  Fisher,  35  Pac.  77. 

Affidavit  for  stay  of  execution.  Upon  a 
motion  in  the  supreme  court  for  a  stay  of 
execution,  the  affidavits  must  state  facts, 
and  not  mere  general  conclusions;  it  is  not 
sufficient  for  the  moving  party  to  state 
generally  that  a  person  was  not  in  posses- 
sion of  the  property:  he  must  state  that 
some  one  else  is  in  adverse  possession. 
McMillan  v.  Hayward,  84  Cal.  85;  24  Pac. 
151. 

No  stay  after  judgment  executed.  Where 
the  judgment  has  been  executed  prior  to 
the  application  for  a  writ  of  supersedeas 
to  stay  proceedings,  the  application  must 
be  denied.  Hoppe  v.  Hoppe,  99  Cal.  536; 
34  Pac.  222. 

Undertaking  and  stay  where  sale  is 
ordered.  This  section  provides  for  the  un- 
dertaking on  appeal  for  the  stay  of  execu- 
tion of  an  order  of  sale  in  foreclosure 
proceedings.  Boob  v.  Hall,  105  Cal.  413;  38 
Pac.  977.  An  undertaking  on  appeal  for 
costs   only,   without   the   provision   against 


stay  proceedings  under  a  judgment  direct- 
ing a  receiver  to  sell  the  mortgaged  prem- 
ises. Hoppe  V.  Hoppe,  99  Cal.  536;  34  Pac. 
222.  A  defendant  in  foreclosure,  who  is 
residing  on  the  mortgaged  premises,  but 
who  holds  in  subordination  to  another,  can- 
not have  a  stay  of  execution  without  giv- 
ing the  undertaking  prescribed  by  this 
section;  nor  can  the  person  in  subordina- 
tion to  whom  the  property  is  held  have  a 
stay  without  giving  such  undertaking.  Mc- 
Millan V.  Hayward,  84  Cal.  85;  24  Pac. 
151.  The  provision  of  this  section,  requir- 
ing an  undertaking  on  appeal  for  a  de- 
ficiency upon  a  sale  of  mortgaged  premises, 
in  order  to  stay  execution,  does  not  apply 
to  a  judgment  of  foreclosure  and  sale,  and 
for  deficiency,  in  an  action  by  an  adminis- 
tratrix to  enforce  an  equitable  lien  upon 
property  conveyed  by  her  to  a  surviving 
partner  of  the  decedent,  upon  a  settlement 
between  them,  in  consideration  of  his  agree- 
ment to  assume  and  pay  the  whole  amount 
of  a  certain  firm  note,  and  to  relieve  the 
estate  from  liability  thereon;  but  a  bond, 
under  this  section,  in  an  amount  fixed  by 
the  judge  rendering  the  judgment,  to  pre- 
vent waste  pending  the  appeal,  is  sufficient 
to  stay  execution  under  the  judgment. 
Kreling  v.  Kreling,  116  Cal.  460;  48  Pac. 
383.  In  foreclosure  proceedings,  where 
judgment  for  deficiency  is  waived,  and  a 
receiver  of  the  rents  and  profits  has  been 
appointed,  leaving  the  tenant  of  the  mort- 
gagor in  possession,  although  no  undertak- 
ing for  deficiency  or  for  the  value  of  the 
use  and  occupation  is  required  upon  appeal 
by  the  mortgagor  from  the  decree,  yet,  in 
order  to  stay  execution  thereof,  an  un- 
dertaking must  be  given  against  waste, 
notwithstanding  the  tenancy  may  expire 
pending  the  appeal.  Bank  of  Woodland  v. 
Stephens,  137  Cal.  458;  70  Pac.  293.  An 
undertaking  on  appeal  from  a  judgment 
directing  a  sale  of  real  property  merely,, 
need  provide  security  only  against  waste, 
unless  such  sale  is  of  mortgaged  premises 
and  the  judgment  provides  for  the  payment 
of  any  deficiency,  in  which  case  it  must 
provide  for  the  payment  of  such  deficiency,, 
but  no  provision  need  be  inserted  therein 
for  the  payment  of  the  value  of  the  use 
and  occupation  of  the  premises  pending  the 
appeal,  for  the  obvious  reason  that  the 
judgment  creditor  does  not  become  entitled 
to  the  value  of  the  use  and  occupation 
until  after  the  sale.  Englund  v.  Lewis,  25 
Cal.  337.  An  undertaking  to  stay  execu- 
tion, upon  appeal  from  a  decree  foreclosing 


1059 


UNDERTAKING — DEFICIEXCY   JUDGMENT. 


§945 


a  mechanic's  lien,  must  be  pivon  under  tliia 
section:  a  mere  bond  in  double  tlie  amount 
of  the  judfi;meut  against  the  owner  of  the 
premises,  not  conditioned  as  required  by 
this  section,  does  not  have  the  effect  of 
staying  execution  of  tlie  judgment.  Central 
Lumber  etc.  Co.  v.  Center,  lu7  Cal.  19;{;  4u 
Pac.  334;  and  see  Corcoran  v.  Desmond,  71 
Cal.  100;  11  Pac.  813.  This  section  governs 
in  the  case  of  a  ju<lgment  directing  the  sale 
of  real  property  to  pay  a  money  judgment 
in  an  action  by  a  vendee  against  his 
vendor;  but  it  does  not  apply  where  the 
vendee  of  the  land  is  in  possession,  and  he 
rescinds,  and  recovers  judgment  for  pay- 
ments made  on  the  purchase  price,  and  for 
the  value  of  liis  improvements,  for  which 
amounts  the  land  is  directed  to  be  sold:  the 
ordinary  undertaking  on  appeal,  in  the 
sum  of  three  hundred  dollars,  is  sufficient 
to  stay  proceedings  upon  such  judgment. 
Owen  v.  Pomona  Land  etc.  Co.,  12-4  Cal. 
331;  57  Pac.  71. 

Where  delivery  of  possession  is  ordered. 
An  undertaking  on  aj)peal  from  a  judg- 
ment directing  a  delivery  of  the  possession 
of  real  property  must  provide  against 
waste,  and  for  the  payment  of  the  value 
of  the  use  and  occupation,  and  for  these 
two  items  only:  there  can  be,  in  such  a 
case,  no  question  as  to  deficiency.  Englund 
V.  Lewis,  25  Cal.  337;  AVhitney  v.  Allen,  21 
Cal.  233.  An  order  requiring  the  plaintiff 
in  condemnation  proceedings  to  pay  com 
pensation  for  the  lauds,  where  he  had 
entered  into  possession,  or  else  restore  pos- 
session thereof,  may  be  stayed  under  this 
section.  Neale  v.  Superior  Court,  77  Cal. 
28;  18  Pac.  790.  A  judgment  in  unlawful 
detainer,  which  directs  the  delivery  of  pos- 
session of  real  property,  cannot  be  stayed, 
unless  an  undertaking  is  given  as  provided 
by  this  section;  hence,  an  appeal  from  an 
order  made  after  final  judgment,  vacating 
an  order  for  the  satisfaction  of  a  judg- 
ment, does  not  warrant  the  issuance  of  a 
supersedeas.  Bateman  v.  Superior  Court, 
139  Cal.  141;  72  Pac.  922. 

Undertaking  for  deficiency  required  when. 
Xn  undertaking  to  stay  execution,  pending 
an  appeal  from  a  judgment  of  foreclosure 
of  a  mortgage,  must  provide  for  the  pay- 
ment of  any  deficiency.  Gutzeit  v.  Pennie, 
97  Cal.  484;  32  Pac.  584-.  The  appellant  in 
an  action  to  foreclose  a  mortgage  must 
furnish  an  undertaking  to  pay  any  defi- 
ciency judgment,  whether  he  is  the  mort- 
gagor, or  a  party  who  claims  the  mortgaged 
premises  and  desires  to  prevent  a  sale  and 
enjoy  the  property  during  the  pendency  of 
the  appeal.  Johnson  v.  King,  91  Cal.  307; 
27  Pac.  644.  An  appellant  must  execute 
an  undertaking  for  any  deficiency,  in  an 
action  for  the  foreclosure  of  a  mortgage, 
although  he  may  not  be  the  mortgagor,  and 
regardless  of  whether  he  is  in  possession  or 
not.  Spence  v.  Scott,  95  Cal.  152;  30  Pac. 
202.     An  undertaking  for  the  payment  of 


any  deficiency,  on  an  appeal  from  a  judg- 
ment, where  the  sale  of  real  i)roF)erty  is 
directed  for  the  purpose  of  satisfying  any 
lien  other  than  the  mortgage  lien,  is  not 
re(iuired.  Englund  v.  Lewis,  25  Cal.  337; 
Pacific  Mutual  Life  Ins.  Co.  v.  Fisher,  35 
I'ac.  77;  I'ainter  v.  Painter,  98  Cal.  (125;  33 
Pac.  483;  Kreling  v.  Kreling,  llfi  Cal.  45S; 
4S  Pac.  :{S3.  To  thi.s  extent  the  statute 
discriminates  in  favor  of  mortgage  liens, 
and  against  other  liens;  and  any  further 
provision  in  such  an  undertaking,  not  being 
required  by  law,  is  utterly  void.  Englund 
V.  Lewis,  25  Cal.  337.  Where  the  judgment 
in  an  action  for  a  partnerahi[)  accounting 
directs  the  sale  of  real  property  of  the 
partnershif)  for  the  satisfaction  of  the  lien 
of  one  partner  against  the  others,  an  un- 
dertaking to  pay  any  deficiency  to  stay  its 
execution  is  not  required,  since  such  lien 
was  not  created  by  mortgage,  and  it  is 
only  in  such  latter  case  that  an  undertak- 
ing to  pay  a  deficiency  is  required.  Painter 
V.  Painter,  98  Cal.  625;  33  Pac.  483;  and 
see  Englund  v.  Lewis,  25  Cal.  337.  Where 
an  undertaking  on  appeal  against  the  com- 
mission of  waste  contains  a  further  clause, 
that  the  undertaiiing  is  given  in  compli 
ance  with  the  provisions  of  this  section, 
such  clause  does  not  extend  the  effect  of 
the  un<lertaking  beyond  the  condition  for 
which  it  w-as  executed;  hence,  the  under- 
taking against  the  commission  of  waste 
does  not  obviate  the  necessity  of  the  provis- 
ion for  the  payment  of  any  deficiency 
arising  after  the  sale  of  the  mortgaged 
I)remiscs.  Gutzeit  v.  Pennie.  97  Cal.  484; 
32  Pac.  584.  Where  the  judgment  directs 
the  defendant  to  pay  the  amount  of  certain 
notes,  and  in  default  thereof,  that  certain 
property  shall  be  sold,  and  if  the  proceeds 
are  insufficient,  a  deficiency  judgment  shall 
be  docketed  against  the  defendant,  an  un- 
dertaking on  appeal  for  the  payment  of 
the  deficiency  is  not  required.  Kreling  v. 
Kreling,  IIG  Cal.  458;  48  Pac.  383. 

Purpose  of  undertaking.  The  statutory 
iindertalving  in  each  case  has  reference  to 
a  particular  judgment  and  its  execution;  it 
is  made  primarily  for  the  benefit  of  the 
idaintiff.  Walsh  V.  Soule,  66  Cal.  443;  6 
Pac.  82. 

Validity  of  undertaking.  An  undertak- 
ing on  appeal,  under  this  section,  sufiieient 
in  form  and  amount,  is  not  vitiated  by 
the  fact  that  some  of  the  sureties  are  on 
it  twice,  for  different  sums.  Wheeler  v. 
Karnes,  l.'*n  Cal.  (ilS;  n:',  Pac.  62. 

Amount  of  undertaking.  To  stay  the 
execution  of  the  juilgnumt,  the  appellant 
must  give  an  undertaking  against  waste, 
and  also  an  undertaking  to  jiay  any  defi- 
ciency: against  waste,  in  an  amount  to  be 
fixed  by  the  judge;  against  any  deficiency, 
for  the  entire  deficiency,  whatever  the 
amount  may  prove  to  be.  Gutzeit  v.  Pennie. 
97  Cal.  484"^;  32  Pac.  584.  Where  the  judg 
ment  appealed  from  directs  the  delivery  of 


945 


APPEALS   IN    GENERAL. 


1060 


both  real  and  personal  property,  it  is  the 
duty  of  the  trial  court  to  fix  the  amount  of 
the  bond  to  be  given  to  obtain  a  stay:  the 
supreme    court    has    no    jurisdiction    to    fix 
such  amount.    Doudell  v.  Shoo,  158  Cal.  50; 
109  Pac.  615;   159  Cal.  448;    114  Pac.  579; 
Clute  V.   Superior  Court,  155  Cal.   15;   132 
Am.  St.  Rep.  54;  99  Pac.  362;  Winsor  Pot- 
tery Works  V.  Superior  Court,  13  Cal.  App. 
360;  109  Pac.  843;  Gordan  v.  Graham,  153 
Cal.  297;  95  Pac.  145.     Under  this  section, 
the  judge  of  the  court  has  power  to  fix  the 
amount  of  the  undertaking  on  appeal  from 
a   decree   of   foreclosure,   in   all   the   three 
matters  mentioned  in  the  section,  namely, 
waste,  use  and  occupation,  and  deficiency. 
Boob   V.   Hall,   105   Cal.   413;   38   Pac.   977. 
The  provision  of  this  section  requiring  the 
judge  to  fix  the  amount  of  the  undertaking 
against  waste  is  distinct  from  the  provision 
requiring  that  the  undertaking  shall  also 
provide  for  the  payment  of  a  deficiency; 
hence,  the  authority  of  the  judge  to  fix  the 
penalty   of   the  undertaking  is   limited   to 
the   object  named  in   the  provision   under 
which  it  is  granted.    Gutzeit  v.  Pennie,  97 
Cal.  484;  32  Pac.  584.     Under  this  section, 
the  judge  of  the  court  is  authorized,  upon 
an  ex  parte  application,  to  fix  the  amount 
of  the  undertaking  on  appeal  in  foreclosure 
suits;  but  the  safer  and  better  practice  is 
to  give  the  respondent  an  opportunity  to 
be   heard.     Hubbard   v.    University    Bank, 
120  Cal.  632;  52  Pac.  1070.     The  order  fix- 
ing the  amount  of  undertaking  on  appeal, 
under  this  section,  need  not  specify  sepa- 
rately   the    amounts    for    waste,    use    and 
occupation,  and  deficiency,  but  may  merely 
specify   the   whole   amount   deemed   neces- 
sary to  meet  the  requirements,  although  the 
undertaking  itself  must  contain  covenants 
for   each   of  the   matters   covered   by   this 
section.    "Wheeler  v.  Karnes,  130  Cal.  618; 
63  Pac.  62.     The  question  whether  a  judg- 
ment has  been  executed  by  the  sheriff  by 
a  delivery  of  the  possession  of  the  property 
should  not  be  considered  by  the  judge   as 
a  ground  of  refusal  to  fix  the  amount  of 
the  undertaking  to  stay  proceedings;   but 
the  judge  should  determine  the  sufficiency 
of  those  matters,  when  presented  upon  a 
direct  issue,  in  which  the  right  to  an  actual 
stay  of  proceedings  is  involved.    Gutierrez 
V.  Hebbard.  104  Cal.  103;  37  Pac.  749. 

Mandamus  to  compel  judge  to  fi^  amount. 
The  trial  judge  may  be  compelled,  by  man- 
damus, to  fix  the  amount  of  the  undertakj 
ing.  Gordan  v.  Graham,  153  Cal.  297;  95 
Pac.  145.  One  having  a  right  of  appeal 
from  an  order  denying  a  motion  to  vacate 
or  modify  an  order  for  a  writ  of  possession, 
may  insist  upon  the  duty  of  the  court  to 
fix  the  amount  of  the  undertaking  neces- 
sary to  stay  the  operation  of  such  writ, 
under  this  section,  and  the  discharge  of 
such  duty  may  be  compelled  by  writ  of 
mandate.  Green  v.  Hebbard,  95  Cal.  39;  30 
Pac.  202.     Upon  application  for  a  writ  of 


mandate  to  compel  the  court  to  fix  the 
amount  of  the  undertaking  necessary  to 
staj'  the  operation  of  a  writ  of  possession, 
under  this  section,  the  merits  of  the  ruling 
appealed  from  will  not  be  considered.  Green 
V.  Hebbard,  95  Cal.  39;  30  Pac.  202. 

Result  of  giving  undertaking.  Upon  the 
giving  of  a  bond  under  this  section,  one 
may  be  rightfully  left  in  the  possession  of 
lands,  pending  the  determination  of  his 
appeal,  he  being  answerable  for  the  use 
and  occupation  of  the  premises.  Agoure  v. 
Lewis,  15  Cal.  App.  71;  113  Pac.  882.  An 
undertaking  on  appeal  by  a  defendant  in 
ejectment,  against  whom  judgment  was  re- 
covered, that  he  will  pay  the  value  of  the 
use  and  occupation  of  the  property  from 
the  time  of  the  appeal  until  the  delivery 
of  the  possession  thereof,  deprives  the 
plaintiff  in  ejectment  of  all  right  of  posses- 
sion pending  the  appeal,  and  operates,  by 
virtue  of  the  statute,  to  give  the  defendant 
a  lease  of  the  land  during  the  period  speci- 
fied. Shepperd  v.  Tyler,  92  Cal.  552;  28  Pac. 
601. 

Result  of  failure  to  give  undertaking.  A 
writ  of  assistance  may  issue  to  recover  the 
possession  of  land  sold  at  foreclosure  sale, 
where  no  undertaking  staying  the  execu- 
tion has  been  given,  as  provided  by  this 
section;  hence,  the  judgment  roll  is  admis- 
sible in  evidence  on  the  application  for 
such  writ,  notwithstanding  the  pendency 
of  an  appeal  from  the  judgment.  Cali- 
fornia Mortgage  etc.  Bank  v.  Graves,  129 
Cal.  649;  62  Pac.  259;  and  see  Montgomery 
V.  Tutt,  11  Cal.  190. 

Failure  to  object  to  insufficiency  of  un- 
dertaking. The  failure  of  the  respondent 
to  object  to  the  insufficiency  of  the  under- 
taking on  appeal  to  stay  execution  of  the 
judgment  foreclosing  the  mortgage,  at  the 
time  it  was  given,  because  of  its  failure  to 
provide  for  the  payment  of  any  deficiency, 
is  not  a  waiver  of  his  right  to  the  enforce 
ment  of  the  judgment.  Gutzeit  v.  Pennie, 
97Cal.  4S4;  32  Pac.  584. 

Liability  of  sureties.  Where  an  under- 
taking strictly  complies  with  the  provisions 
of  this  section,  and  the  sureties  have  bound 
themselves  in  a  penal  sum,  fixed  by  the 
judge  of  the  court,  to  make  good  not  only 
any  damage  which  may  arise  from  waste, 
but  also  any  deficiency  judgment  which 
may  remain  after  sale  of  the  mortgaged 
premises,  if  the  penal  sum  fixed  is  con- 
sumed by  a  judgment  against  the  sureties 
for  waste,  no  recovery  can  be  had  against 
them  for  deficiency;  but  if  no  damage  for 
waste  is  recovered,  the  full  amount  of  the 
penal  sum  is  available  to  make  good  any 
deficiency  not  exceeding  that  sum.  Oijden 
V.  Davis,  116  Cal.  32;  47  Pac.  772.  Where 
an  undertaking  on  appeal  from  a  judgment 
foreclosing  a  mortgage  provided,  among 
other  things,  that  if  the  juilgment  should 
be  affirmed  the  mortgagor  would  pay  to  the 
plaintiff  the  value  of  the  use  and  occupa-' 


1061 


WRIT  OF  ASSISTANCE — EFFECT  OP  APPEAL  ON   IJoVY, 


§946 


I'rovisions  authoriziiij;  or  rpquirinjj  stay 
bomls  do  not  apply  to  an  a|i|ic'al  from  a  <le- 
oroe  of  ilistril)Ution.  Estate  of  Ki-nncdy, 
1L'!»  Cal.  3H4;  ()2  Vac.  fi4 ;  Kstate  of  Sdicilel, 
69  Cal.  2A]  ;  Ki  I'a<'.  .134. 

Writ  of  assl.stance.  All  that  is  requisite 
to  olitaiii  tho  writ  of  assistanco,  as  anairist 
tho  parties,  ami  those  ciaimiiiji  with  notice 
under  them,  after  the  eoniniemement  of 
the  action,  is,  to  furnish  to  the  court  proj)er 
evidence  of  a  presentation  of  a  deed  to 
them,  and  a  demand  of  possession,  and 
their  refusal  to  surrender  it  (Mont^omerv 
V.  Middleniiss,  21  <'al.  10:i;  81  Am.  Dec, 
140;  California  Mortj^age  etc.  Hank  v. 
Graves,  12!)  Cal.  64!»;  (52  Pac.  2.^!l);  and 
such  evidence  can  properly  he  furnished  to 
the  court  by  aflidavit.  California  Mort^^at^e 
etc.  Bank  v.  Graves,  129  Cal.  G49;  (i2  I'ac. 
259.  It  is  the  duty  of  the  trial  jufljje,  upon 
proper  aj'jdication,  to  fix  the  amount  of  tho 
undertakinfij  to  be  given  to  stay  j)roceeil- 
ings  on  a  writ  of  assistance,  pending  an 
appeal.  Gordan  v.  Graham,  1.53  Cal.  297;  95 
Pac.  14.3. 

Stay  of  proceedings.  See  notes  post, 
§§949,1170. 

CODE  COMMISSIONERS'  NOTE.  Whitney  v. 
Alien,  21  Cal.  2:3:3;  Entilund  v.  Lewis,  2.5  Cal. 
350:  Thornton  v.  Mahoncy,  24  Cal.  584;  ZoUer 
V.  McDonald,  23  Cal.  136;  Pierson  v.  McCahill. 
23  Cal.  249. 


tion  of  the  premises  pending  the  appeal, 
and  the  judgment  was  allirmed,  and  no  sale 
of  the  property  having  been  made,  an  ac- 
tion was  brought  against  the  sureties  to 
recover  the  value  of  the  use  and  occupa- 
tion, the  undertaking  in  reference  to  such 
use  and  occujiation  not  being  required  by 
the  statute,  the  sureties  are  not  liable. 
Whitney  v.  Allen,  21  Cal.  233.  The  sure 
ties  on  an  undertaking  against  the  commis- 
sion of  waste,  in  foreclosure  i)roceedings, 
are  not  liable  therefor,  where  the  i>roperty 
is  erroneously  described  in  such  undertak- 
ing, which  followed  the  mortgage,  com- 
plaint, and  judgment.  Ogden  v.  Davis,  110 
Cal.  32;  47  Pac.  772.  Sureties  are  not 
liable  on  an  undertaking  under  this  section, 
where  the  judgment  is  allirmed  only  in 
part:  this  section  does  not  provide  for  the 
liability  of  sureties  in  such  case,  as  does 
§942,  ante.  Heinlen  v.  Beans,  71  Cal.  29.5; 
12  Pac.  167.  Where  an  undertaking  on  ap- 
peal for  a  stay  of  execution  s]iecifics  a 
penal  sum,  and  recites  that  such  sum  is  the 
amount  fixed  by  the  judge,  such  recital 
binds  the  sureties,  equally  with  the  prin- 
cipal, and  it  may  be  taken  as  true  against 
■them,  and  need  not  be  averred  in  the  com- 
plaint nor  proved  at  the  trial.  Ogden  v. 
Davis,  116  Cal.  32;  47  Pac.  772. 
Probate    proceedings,    undertaking    on. 

§  946.  Release  of  property  under  levy,  on  appeal.  Attachment  not  con- 
tinued. Whenever  an  appeal  is  perfected,  as  provided  in  the  preecdinf,' 
sections  of  this  chapter,  it  stays  all  further  proceedings  in  the  court  below 
upon  the  judgment  or  order  appealed  from,  or  upon  the  matters  embraced 
therein,  and  releases  from  levy  property  Avhich  has  been  levied  upon  un- 
der execution  issued  upon  such  judgment;  provided,  however,  said  prop- 
erty shall  not  be  released  from  the  levy,  if  the  respondent  excepts  to  the 
sufficiency  of  the  sureties  within  five  days  after  the  giving  of  the  undertak- 
ing staying  execution  until  such  sureties,  or  others,  justify  in  the  manner 
prescribed  by  law- ;  but  the  court  below^  may  proceed  upon  any  other  mat- 
ter embraced  in  the  action  and  not  affected  by  the  order  appealed  from. 
And  the  court  below  may  in  its  discretion,  dispense  with  or  limit  the  secu- 
rity required  by  this  chapter,  when  the  appellant  is  an  executor,  adminis- 
trator, trustee,  or  other  person  acting  in  another's  right.  An  appeal  does 
not  continue  in  force  an  attachment,  unless  an  undertaking  be  executed 
and  filed  on  the  part  of  the  appellant  bj^  at  least  two  sureties,  in  double 
the  amount  of  the  debt  claimed  by  him,  that  the  appellant  will  pay  all  costs 
and  damages  which  the  respondent  may  sustain  by  reason  of  the  attach- 
ment, in  case  the  order  of  the  court  below  be  sustained;  and  unless,  within 
five  daj's  after  the  entry  of  the  order  appealed  from,  such  appeal  be  per- 
fected. 

Legislation  g  946.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  353  (New  York  Code, 
§  339),  as  amended  by  Stats.  18G5-G6,  p.  707, 
which  read:  "Whenever  an  appeal  is  perfected  as 
provided  in  the  preceding  sections  in  this  chap- 
ter, it  shall  stay  all  fufther  proceedings  in  the 
court  below  upon  the  .iudgment  or  order  appealed 
from,  or  upon  the  matters  embraced  therein;  and 
on    appeal,    and    tiling   an    appeal    bond   on   appeal 


from  an  order  discharging  an  attachment.  8aid 
attachment  shall  not  be  dissolved,  but  shall  re- 
main in  full  force  until  the  cause  be  disposed  of 
on  appeal,  but  the  court  below  may  proceed  upon 
any  other  matter  embraced  in  the  action  and  not 
affected  by  the  order  appealed  from.  And  the 
court  below  may.  in  its  discretion.  disp"-nse  with 
or  limit  the  security  required  by  said  sections, 
when  the  appellant   is  an  executor,  administrator. 


§946 


APPEALS   IN    GENERAL. 


1062 


trustee,  or  other  person  acting  in  another's  right ; 
provided,  that  an  appeal  sliall  not  continue  in 
force  an  attachment,  unless  an  undertaking  be 
executed  and  filed  on  the  part  of  the  appellant, 
by  at  least  two  sureties,  in  double  the  amount  of 
the  debt  claimed  by  him,  that  the  appellant  will 
pay  all  costs  and  damages  which  the  respondent 
may  sustain  by  reason  of  the  attachment,  in  case 
the  order  of  the  court  below  be  sustained;  and 
unless,  also,  notice  of  the  appeal  be  given  within 
five  days  after  service  of  the  notice  of  the  entry 
of  the  order  appealed  from,  and  such  appeal  be 
perfected,  and  the  undertaking  in  this  section 
mentioned  be  filed  within  five  days  thereafter." 
The  changes  from  the  original  code  §  946  are 
noted  infra. 

3.  Amended  by  Code  Amdts.  1873-74,  p.  337, 
(1)  in  first  sentence,  inserting  "and  releases  from 
levy  property  which  has  been  levied  upon  under 
execution  issued  upon  such  judgment";  (2)  in 
final  sentence,  omitting  (a)  "from  an  order  dis- 
solving an  attachment,"  after  "an  appeal,"  and 
(b)    "and,"  before  "such  appeal"  be  perfected. 

3.  Repeal  by  Stats.  1901,  p.  173;  unconsti- 
tutional.   See  note  ante,  §  5. 

4.  Amended  by  Stats.  1913,  p.  316,  in  first 
sentence,  adding  the  proviso,  "provided  ...  by 
law." 

Construction  of  section.  The  effect  of  an 
appeal  from  a  judgment  is  purely  a  matter 
of  statutory  regulation,  to  be  determined  by 
a  construction  of  the  statute  under  which 
the  appeal  is  taken.  Ex  parte  Queirolo,  119 
Cal.  635;  51  Pac.  95G. 

Appeal  perfected  when.  Whenever  the 
undertaking  on  appeal  has  been  properly 
executed,  and  the  sureties,  if  excepted  to, 
have  justified,  or  the  court  has  dispensed 
with  security,  "an  appeal  is  perfected,"  in 
the  sense  in  which  these  words  are  used  in 
this  section  (Hill  v.  Finnigan,  54  Cal.  493); 
and  when  the  order  of  the  court,  fixing  the 
amount  of  the  undertaking  on  appeal  to 
stay  execution  in  a  foreclosure  suit,  has 
been  complied  with,  the  appeal  is  perfected. 
Hubbard  v.  University  Bank,  120  Cal.  632; 
52  Pac.  1070. 

Judgment  in  force  until  appeal  perfected. 
So  far  as  the  exeeut-on  of  the  judgment  is 
concerned,  the  judgment  of  the  trial  court 
remains  in  full  force  until  the  appeal  is 
perfected  by  the  proper  undertaking  for 
stay  of  proceedings,  and  the  justification 
of  the  sureties,  if  excepted  to.  Hill  v. 
Finnigan,  54  Cal.  493. 

What  undertaking  stays  proceedings.  The 
giving  of  the  ordinary  undertaking  on  ap- 
peal, mentioned  in  §  941,  ante,  stays  pro- 
ceedings in  the  court  below  upon  the 
judgment  or  order  appealed  from.  Rohr- 
bacher  v.  Superior  Court,  144  Cal.  631;  78 
Pac.  22;  Olsen  v.  Birch,  1  Cal.  App.  93;  81 
Pac.  656;  Los  Angeles  v.  Pomcroy,  132  Cal. 
340;  64  Pac.  477.  The  giving  of  the  under- 
taking mentioned  in  §  941,  ante,  on  appeal 
from  an  order  which  is  not  one  of  those 
specified  in  §§  942,  943,  944,  945,  ante,  and 
949,  post,  stays  all  proceedings;  hence,  a 
motion  for  a  stay  of  proceedings  will  be 
granted.  Los  Angeles  v.  Pomeroy,  132  Cal. 
3-10;  64  Pac.  477;  and  see  Estate  of  Woods, 
94  Cal.  567;  29  Pac.  1108;  Root  v.  Bryant, 
54  Cal.  183.  The  fact  that  an  undertaking 
on  appeal  is  insufficient  because  the  sure- 
ties are  not  good,  and  that  a  new  under- 


taking is  given  upon  exception  to  the 
sureties  upon  the  first  undertaking,  does 
not  affect  the  stay  of  proceedings,  which 
takes  place  upon  the  filing  of  the  required 
undertaking,  without  regard  to  the  suffi- 
ciency or  insufficiency  of  the  sureties.  Lee 
Chuck  v.  Quan  Wo  Chong  Co.,  SI  Cal.  222; 
15  Am.  St.  Rep.  50;  22  Pac.  594. 

Amount  of  undertaking  must  be  fixed. 
No  stay  of  execution  upon  appeal  is  ef- 
fectuated, unless  the  amount  of  the  under- 
taking is  fixed  by  the  court,  or  by  a  judge 
thereof.  United  States  Fidelitv  etc.  Co.  v. 
More,  155  Cal.  415;  101  Pac.  302. 

Undertaking  unnecessary  when.  No  un- 
dertaking on  appeal  from  a  judgment  is 
necessary  or  authorized  to  stay  proceedings 
as  to  moneys  deposited  in  court,  by  stipula- 
tion of  the  parties  to  the  action,  pending 
litigation.  Broder  v.  Conklin,  121  Cal.  289; 
53  Pac.  797. 

Appeal  stays  proceedings.  The  effect  of 
an  appeal  is  to  stav  the  proceedings  (Karry 
V.  Superior  Court,"  162  Cal.  281;  128  Pac. 
760),  and  to  remove  the  subject-matter  of 
the  order  from  the  jurisdiction  of  the  lower 
court,  and  that  court  is  without  power  to 
proceed  further  as  to  any  matter  embraced 
therein  until  the  appeal  is  determined. 
Stateler  v.  Superior  Court,  107  Cal.  536;  40 
Pac.  949;  Ex  parte  Queirolo,  119  Cal.  635; 
51  Pac.  956;  and  see  Ruggles  v.  Superior 
Court,  103  Cal.  125;  37  Pac.  211.  An  ap- 
peal from  an  order  denying  a  motion  to  set 
aside  a  judgment  for  want  of  findings  of 
fact  to  support  it,  which  was  dismissed 
because  it  was  not  an  appealable  order, 
cannot  operate  to  stay  proceedings  in  the 
trial  court,  nor  deprive  the  court  of  power 
to  hear  and  deny  a  motion  for  a  new  trial. 
Gregory  v.  Gregory,  102  Cal.  50;  36  Pac. 
364.  A  stay  of  proceedings  can  be  had 
only  of  orders  or  judgments  which  com- 
mand or  permit  some  act  to  be  done.  Bliss 
v.  Sujierior  Court,  62  Cal.  543. 

Proceedings  upon  the  judgment.  Pro- 
ceedings to  enforce  a  judgment  are  stayed 
by  the  filing  of  a  sufilcient  undertaking  on 
appeal  from  an  order  denying  a  new  trial. 
Owen  V.  Pomona  Land  etc.  Co.,  124  Cal. 
331;  57  Pac.  71;  and  see  Fulton  v.  Hanna, 
40  Cal.  278;  Holland  v.  McDade,  125  Cal. 
353;  58  Pac.  9;  Baldwin  v.  Superior  Court, 
125  Cal.  584;  58  Pac.  185;  Starr  v.  Kreuz- 
berger,  131  Cal.  41 ;  63  Pac.  135.  An  attempt 
to  collect  alimony  by  a  writ  of  execu- 
tion is  a  proceeding  upon  the  judgment, 
and  may  be  stayed  on  appeal.  Anderson  v. 
Anderson,  123  Cal.  445;  56  Pac.  61.  The 
right  of  the  appellant  to  have  the  execu- 
tion stayed,  })euding  an  appeal  from  an 
order  denying  a  new  trial,  is  not  impaired 
by  the  fact  that  the  appeal  from  the  judg- 
ment was  dismissed.  Tompkins  v.  Mont- 
gomery, 116  Cal.  120;  47  Pac.  1006;  and  see 
Fulton  V.  Hanna,  40  Cal.  278.  Where  the 
supreme  court,  upon  notice  to  the  respond- 
ent's   attorney,    permits    the    appellant    to 


1063 


POWER  OF  COURT  PENDING  APPEAL. 


§946 


file  an  undertaking  staying  execution  on 
a  judgment,  pending  an  appeal  from  the 
judgment,  and  from  an  order  denying  a 
new  trial,  the  issuance  of  execution  is 
stayed  until  both  api>eals  are  decided; 
hence,  the  issuance  of  execution  after  the 
dismissal  of  the  appeal  from  tiie  order 
denying  a  new  trial  is  impro])er,  ami  the 
amount  collected  on  the  judgment  will  be 
ordered  to  bo  restored.  Komine  v.  Cralle, 
83  Cal.  432;  23  Pac.  525.  A  judgment  de- 
claring the  forfeiture  of  a  cori)orate  char 
ter  is  stayed  by  the  giving  of  a  sulKcient 
undertaking,  under  this  section.  Have- 
meyer  v.  Superior  Court,  S-t  Cal.  327;  13 
Am.  St.  Eep.  192;  10  L.  K.  A.  627;  24  Pac. 
121.  An  appeal  from  an  order  setting 
aside  a  judgiiicnt  has  not  the  effect  of  re- 
viving the  judgment;  such  judgment  no 
longer  exists,  so  far  as  the  assertion  of  any 
rights  under  it  is  concerned,  until  it  is 
brought  into  force  again  by  a  reversal  of 
the  order  setting  it  aside.  Estate  of  Crozier, 
65  Cal.  332;  4  Pac.  109;  and  see  Pevcke 
V.  Keefe,  114  Cal.  212;  46  Pac.  7S.  "The 
provision  that  the  appeal  stays  all  proceed- 
ings upon  the  judgment  in  the  court  below 
does  not  restrict  its  effect  elsewhere.  Foster 
V.  Superior  Court,  115  Cal.  279;  47  Pac.  58. 

Proceedings  upon  the  order.  Pending  an 
appeal  from  an  order  modifying  a  decree 
of  divorce  awarding  the  custody  of  the 
children,  the  power  of  the  court  to  compel 
the  enforcement  of  such  modified  order  is 
suspended.  Ex  parte  Queirolo,  119  Cal. 
635;  51  Pac.  956.  An  appeal  from  an  order 
granting  a  new  trial  operates  to  suspend 
the  functions  of  the  order,  and  leaves  the 
judgment  subsisting,  for  the  purposes  of  an 
appeal  therefrom,  pending  the  appeal  from 
the  order.  Henry  v.  Merguire,  111  Cal.  1; 
43  Pac.  387.  An  appeal  by  an  executor 
from  an  order  directing  him  to  pay  a  cer- 
tain sum  as  an  unpaid  family  allowance, 
stays  all  proceedings;  hence,  he  cannot  be 
punished  for  contempt,  where  he  refuses  to 
obev  such  order.  Ruggles  v.  Superior  Court, 
103' Cal.  125;  37  Pac.  211.  Proceedings  on 
an  order  for  a  writ  of  assistance  are  stayed 
by  the  filing  of  an  undertaking  for  that 
purpose;  but  such  stay  is  not  permanent 
and  final,  pending  the  appeal,  since,  on  the 
failure  of  the  surety  to  justify,  it  becomes 
nugatory  and  of  no  avail.  Boyer  v.  Su- 
perior Court,  110  Cal.  401;  42  Pac.  892. 
Whether  an  order  ap])ealed  from  is  or  is 
not  appealable,  will  not  be  determined  in 
advance  of  the  hearing  of  the  appeal  upon 
its  merits;  and  while  a  motion  to  dismiss 
the  appeal  is  pending  and  undetermineij.  it 
is  the  duty  of  the  trial  court  to  refrain 
from  enforcing  the  order.  Hale  etc.  Siixer 
Mining  Co.  v.  Fox,  122  Cal.  56;  54  Pac  270. 

Pending  appeal,  court  cannot  change 
direction  as  to  undertaking.  When  the 
necessary  direction  and  bond  have  been 
given  for  a  stay  of  proceedings  upon  appeal 
from  a  judgment,  the  court  below  has  no 


further  control  over  the  matter,  and  cannot 
withdraw  its  direction,  nor  dis(diargc  the 
order  after  it  has  been  complied  with  and 
tlio  appeal  and  uuclertaking  have  been  per- 
fected. Lee  Chuck  v.  (^uan  Wo  ('hong  Co., 
81  Cal.  222;  15  Am.  St.  Wep.  5U;  22  Pac. 
594.  When  the  order  of  tlie  court,  fi.xing 
the  amount  of  the  undertaking  on  appeal 
to  stay  execution  in  a  foreclosure  suit,  has 
been  comi)lied  with,  the  appeal  is  per- 
fected, and  all  further  proceedings  in  the 
court  are  thereby  stayed,  and  the  court  has 
no  power  to  impose  further  conditions  upon 
the  ai)]iellaut;  hence,  the  court  has  no 
power  thereafter  to  require  an  undertak- 
ing to  be  given  in  a  larger  amount.  Hub- 
bard V.  University  Bank,  120  Cal.  632;  52 
Pac.  1070. 

Cannot  change  record.  While  an  ai>peal 
is  j)ending,  the  trial  court  has  no  jurisdic- 
tion to  allow  an  amendment  to  any  plead- 
ing. Kirbv  V.  Superior  Court,  68  Cal.  604; 
10  Pac.  119. 

Effect  of  appeal  from  judgment.  After 
an  ajipeal  from  a  judgment,  the  trial  court 
has  no  power  to  change  the  judgment  ap- 
jiealed  from  so  as  to  prevent,  in  effect,  a 
review  of  alleged  errors  brought  up  by  bill 
of  exceptions.  Reynolds  v.  Reynolds,  67 
Cal.  176;  7  Pac.  480.  The  superior  court 
cannot  deprive  the  appellate  court  of  juris- 
diction of  an  appeal  from  a  judgment,  by 
amending  it  while  the  appeal  is  pending. 
San  Francisco  Sav.  Union  v.  Myers,  72  Cal. 
161;  13  Pac.  403.  Pending  an  appeal  from 
a  judgment  of  divorce,  which  includes  a 
judgment  awarding  the  custody  of  minor 
children,  the  trial  court  has  no  jurisdiction 
to  modify  the  judgment  as  to  the  custody 
of  the  children.  Vosburg  v.  Vosburg.  137 
Cal.  493;  70  Pac.  473.  A  bill  of  exceptions, 
prepared  and  settled  as  the  basis  of  a  mo- 
tion for  a  new  trial,  and  upon  which  such 
motion  was  heard  and  denied,  and  which 
constitutes  the  record  upon  appeal  from 
the  order,  cannot  be  corrected  by  the  su- 
perior court  pending  an  appeal.  Baker  v. 
Borello,  131  Cal.  615;  63  Pac.  914.  Pend- 
ing an  ai)peal  from  an  order,  the  superior 
court  has  no  more  power  to  modify  it,  than 
it  has  to  proceed  and  enforce  it  in  its  en- 
tiretv.  Stateler  v.  Superior  Court,  107  Cal. 
536;'40Pac.949. 

Cannot  entertain  motions.  A  motion  to 
vacate  an  injunction,  contained  in  a  judg- 
ment, is  a  proceeding  upou  the  judgment, 
and  upon  the  matters  embraced  therein, 
within  the  meaning  of  this  section,  and 
cannot  be  entertained  by  the  court,  pend- 
ing an  appeal,  although  the  judgment  con- 
tained a  condition,  upon  the  performance 
of  which  the  defenilant  might  move  to  have 
the  judjiment  vacated  or  set  aside.  Rogers 
V.  Sujierior  Court,  126  Cal.  1S3;  5S  Pac.  452. 

Cannot  try  case.  Where  an  appeal  is 
taken  from  an  order  setting  aside  a  void 
judgment,  the  trial  court  cannot  try  the 
case  until  the  appeal  is  heard  and  deter- 


946 


APPEALS   IN   GENERAL. 


1064 


mined.    Livermore    v.    Campbell,    52    Cal. 
75. 
Cannot    set    aside    judgment    or    order. 

Pending  an  appeal  from  a  judgment,  and 
from  an  order  refusing  to  set  the  same 
aside,  the  trial  court  loses  jurisdiction  of 
the  cause,  and  has  no  authority  of  its  own 
motion,  to  set  the  judgment  aside.  Peycke 
V.  Keefe,  114  Cal.  212;  46  Pac.  78.  Pend- 
ing an  appeal  from  an  order  denying  a 
motion  for  a  new  trial,  the  trial  court  has 
no  authority  to  vacate  it  or  to  set  it  aside. 
Stewart  v.  Taylor,  68  Cal.  5;  8  Pac.  605; 
and  see  Kirby  v.  Superior  Court,  68  Cal. 
604;  10  Pac.  119. 

Cannot  forbid  certification  of  transcript. 
After  the  appeal  to  the  appellate  court  is 
complete,  the  action  is  removed  from  the 
court  below,  except  as  to  matters  not 
affected  by  the  appeal;  therefore  an  order 
of  the  trial  court,  forbidding  the  clerk  to 
certify  to  a  proposed  transcript  on  appeal, 
is  void.   People  v.  Center,  54  Cal.  236. 

Power  of  court  in  insolvency  proceedings. 
Pending  an  appeal  from  an  order  granting 
an  adjudication  in  insolvency,  the  court 
has  no  jurisdiction  to  compel  the  insolvent 
to  prepare  and  file  his  inventory  and  sched- 
ules, or  to  proceed  to  the  selection  of  an 
assignee,  or  to  call  a  meeting  of  creditors, 
or  to  do  any  further  thing  in  the  proceed- 
ing, except  only  such  things  as  may  be 
done  through  a  receiver  for  taking  and 
preserving  the  property  of  the  insolvent. 
Dennery  v.  Superior  Court,  84  Cal.  7;  24 
Pac.  147.  An  appeal  from  a  judgment  de- 
claring a  corporation  insolvent  suspends 
the  judgment  until  the  determination  of 
the  appeal,  and  while  the  appeal  is  pend- 
ing the  court  cannot  carry  into  execution 
that  part  of  its  judgment  authorizing  the 
appointment  of  a  receiver.  State  Invest- 
ment etc.  Co.  V.  Superior  Court,  101  Cal.  135; 
35  Pac.  549.  The  transfer  of  insolvency 
proceedings,  after  the  order  of  adjudi- 
cation had  been  made,  from  the  department 
in  which  they  had  been  pending  to  the  de- 
partment in  which  the  action  for  dissolu- 
tion of  the  corporation  was  pending,  cannot 
confer  upon  the  court  any  greater  power 
for  the  appointment  of  a  receiver,  pending 
an  appeal,  than  the  court  had  previously. 
State  Investment  etc.  Co.  v.  Superior  Court, 
101  Cal.  135;  35  Pac.  549. 

Injunction  stayed  when.  Pending  an  ap- 
peal, a  mandatory  injunction  is  stayed  and 
suspended.  Schwarz  v.  Superior  Court,  111 
Cal.  106;  43  Pac.  580;  Clute  v.  Superior 
Court,  155  Cal.  15;  132  Am.  St.  Eep.  54; 
99  Pac.  362.  An  injunction,  though  re- 
strictive in  form,  is  mandatory,  if  it  has 
the  effect  to  compel  the  performance  of  a 
substantive  act,  and  is  stayed  pending  ap- 
peal. Mark  v.  Superior  Court,  129  Cal.  1; 
61  Pac.  436.  Although,  pending  an  ap- 
peal, the  effect  of  a  prohibitory  injunction 
is  not  stayed  or  suspended,  yet  the  court 
cannot,  by  attempting  to  enforce  a  prohibi- 


tory injunction,  indirectly  enforce  a  man- 
datory injunction,  the  etfect  of  which  is 
suspended  on  appeal;  and  where  appellants 
were  ordered  to  remove  certain  trade-signs 
from  their  premises,  and  prohibited  from 
using  the  trade  name  thereon,  and  made 
no  use  of  such  name  pending  the  appeal, 
except  upon  signs  the  property  of  their 
lessors,  they  cannot  be  punished  for  con- 
tempt for  violation  of  the  prohibitory  in- 
junction for  merely  allowing  the  signs  to 
remain  in  the  same  condition  pending  the 
appeal.  Schwarz  v.  Superior  Court,  111  Cal. 
_  106;  43  Pac.  580.  Pending  an  appeal  from 
a  judgment  declaring  a  j^erson  entitled  to 
office  in  a  private  corporation,  all  proceed- 
ings in  the  trial  court  are  stayed:  the  court 
cannot,  after  appeal,  enjoin  the  other  di- 
rectors of  the  corporation  from  interfering 
with  the  right  of  such  plaintiff  to  the  office. 
Foster  v.  Superior  Court,  115  Cal.  279;  47 
Pac.  58.  An  injunction  is  not  dissolved  or 
superseded  by  an  appeal  from  the  judg- 
ment awarding  the  injunction.  Merced  Min- 
ing Co.  V.  Fremont,  7  Cal.  130.  Pending  , 
an  appeal  from  a  judgment  granting  a  per- 
petual injunction,  the  trial  court  is  not  de- 
prived of  its  power  to  punish  a  disobedience 
of  the  injunction  as  a  contempt.  Heinleu 
V.  Cross,  63  Cal.  44.  Pending  an  appeal 
from  a  judgment  declaring  that  the  plain- 
tiff was  elected  and  the  defendant  was  not 
elected  a  director  of  a  corporation,  and 
granting  no  other  relief,  the  plaintiff  will 
not  be  restrained  from  performing  his 
duties  as  such  director:  his  assuming  to  be 
such  director,  while  it  may  be  in  conse- 
quence of  the  judgment,  is  not  a  proceed- 
ing upon  the  judgment.  Dulin  v.  Pacific 
etc.  Coal  Co.,  98  Cal.  304;  33  Pac.  123.  An 
appeal  from  a  judgment  granting  a  per- 
petual injunction  does  not  suspend  such  in- 
junction during  the  pendency  of  the  appeal, 
where  it  is  merely  prohibitory.  Heinlen  v. 
Cross,  63  Cal.  44;  Schwarz  v.  Superior 
Court,  111  Cal.  106;  43  Pac.  580;  Eogers  v. 
Superior  Court,  126  Cal.  183;  58  Pac.  452. 

Effect  of  appeal  on  undertaking  to  pre- 
vent attachment.  An  undertaking  given 
to  a  sheriff  to  prevent  the  levy  of  an  at- 
tachment is  neither  destroyed  nor  affected 
by  the  giving  of  an  undertaking  to  stay 
the  enforcement  of  the  judgment  upon  an 
appeal  therefrom.  .Ayres  v.  Burr,  132  Cal. 
125;  64  Pac.  120. 

On  possession  of  real  property.  An 
undertaking  on  appeal  in  unlawful  de- 
tainer, given  before  the  removal  of  the 
personal  property  of  the  defendant,  stays 
the  proceedings,  and  the  defendant  is  en- 
titled to  remain  in  possession  pending  the 
appeal.  Lee  Chuck  v.  Quan  Wo  Chong  Co., 
81  Cal.  222;  15  Am.  St.  Rep.  50;  22  Pac. 
594.  An  appeal  by  a  defendant,  accom- 
panied by  his  abandonment  of  all  defenses, 
except  a  claim  for  greater  compensation, 
does  not  so  affect  the  judgment  as  to  de- 
stroy   the    plaintiff's    right    to    possession. 


1065 


APPEAL — STAY — EFFECT  OF. 


§04G 


Los   Angeles   etc.   Rv.   Co.    v.   Kiimpp,    104 
Cal.  20;  H7  Pae.  .859. 

On  powers  of  receivers.  Tlie  filing  of 
the  unilortakiiig  ojicratcs  as  a  suiKTscdoas, 
suspends  all  authority  of  the  receiver  under 
the  order,  withdraws  from  him  the  right 
to  the  control  and  possession  of  the  prop- 
erty involved,  and  restores  the  same  to 
the  appealing  party,  from  whom  it  has 
been  taken.  Jacobs  v.  Superior  Court.  138 
Cal.  364;  So  Am.  St.  Rep.  204;  (j,j  Pac.  82(5. 
The  functions  of  a  receiver,  api)ointed 
after  judgment  for  the  jnirpose  of  carrying 
the  judgment  into  effect,  are  susi)ended 
by  an  appeal  upon  which  a  sufficient  under- ' 
taking  is  given  to  stay  proceedings  upon 
the  judgment;  nor  can  a  receiver  be  ap- 
pointed to  carry  a  judgment  into  effect 
after  a  stay  bond  has  been  given.  Tlave- 
meyer  v.  Superior  Court,  84  Cal.  327;  18 
Am.  St.  Rep.  192;  10  L.  R.  A.  G27;  24  Pac. 
121.  The  functions  of  a  receiver,  ap- 
pointed in  involuntary  proceedings  against 
an  insolvent,  are  not  susjjended  during  an 
appeal  from  the  adjudication  in  such  pro- 
ceedings. In  re  Real  Estate  Associates, 
58  Cal.  356. 

On  motion  for  new  trial.  The  pendency 
of  an  ajipeal  from  a  judgment  does  not 
affect  the  jurisdiction  of  the  trial  court 
to  hear  and  determine  a  motion  for  a  new 
trial.  Rayner  v.  Jones,  90  Cal.  78;  27  Pac. 
24.  The  filing  of  an  undertaking  on  ap- 
peal from  a  judgment  does  not  stay  action 
upon  a  motion  for  a  new  trial,  and  the 
court  has  power,  pending  such  appeal,  to 
grant  a  new  trial:  proceedings  on  motion 
for  a  new  trial  are  not  in  the  direct  line 
of  the  judgment,  but  are  independent  and 
collateral  thereto.  Knowles  v.  Thompson, 
133  Cal.  245;  65  Pac.  468.  Pending  ap- 
peal, the  trial  court  has  jurisdiction  to 
issue  a  commission  to  take  the  deposition 
of  a  witness,  with  a  view  to  its  use  on  a 
new  trial,  should  one  be  awarded.  San 
Francisco  Gas  etc.  Co.  v.  Superior  Court, 
155  Cal.  30;  17  Ann.  Cas.  933;  99  Pac.  359. 

Appeal  suspends  judgment  as  evidence. 
The  effect  of  an  api>eal  from  a  judgment 
is  to  suspend  the  effect  of  the  judgment 
as  evidence  until  its  final  determination, 
even  though  the  execution  thereof  is  not 
stayed;  hence,  where  an  api)eal  is  taken 
from  a  judgment  foreclosing  a  mortgage, 
without  a  stay  of  execution,  and  the  mort- 
gagee made  a  sale,  pending  the  apjieal,  at 
which  he  became  the  purchaser,  and  after- 
wards conveyed  the  title,  pending  the  ap- 
peal, to  the  respondent,  the  effect  of  the 
reversal  of  the  judgment  is  to  nullify  the 
title  in  the  hands  of  the  respondent,  who 
was  bound  to  take  notice  of  all  the  pro 
ceedings  in  the  cause  and  of  the  defeasible 
title  of  his  grantor.  Hi  Xola  v.  Allison.  143 
Cal.  106;  101  Am.  St.  Rep.  84;  65  L.  R.  A. 
419;  76  Pac.  976. 

Effect  of  premature  appeal.  ^Vllere  an 
appeal  from  a  judgment  is  j)remature  and 


ineffectual,  the  trial  court  is  not  divested 
of  jurisdiction  to  enter  a  subsequent  ju<lg- 
ment  at  any  time:  the  apjudlatc  court  does 
not  acquire  any  jurisdiction  of  such  appeal, 
whether  its  attention  is  called  to  the  want 
of  jurisdiction  or  not.  Brady  v.  Hurke,  90 
Cal.  1;  27  Pac.  52.  Where  a  mandamus 
proceeding  against  an  officer  has  been  pre- 
maturely apjiealed.  an  ex  parte  order  sub- 
stituting the  successor  in  office  of  the 
appellant,  made  by  the  ai)pellate  court 
ina<lvertently,  is  invalid,  and  must  fall 
with  the  futile  ai)peal,  for  want  of  a  case 
to  supf)ort  it.  Home  for  Inebriates  v.  Kap 
Ian,  84  Cal.  486;  24  Pac.  119.  The  dis- 
missal of  an  apjieal  as  prematurely  taken 
does  not  oi)erate  as  an  affirmance  of  the 
judgment;  and  such  an  appeal  being  abso- 
lutely void,  it  does  not  deprive  the  court 
below  of  its  jurisdiction,  and  no  stay  of 
proceedings  is  effected  thereunder.  Estate 
of  Kennedy,  129  Cal.  384;  62  Pac  64. 

Motion  for  new  trial  does  not  stay  pro- 
ceedings. The  sujiorior  court  has  juris<lic- 
tion  to  preserve  the  status  quo  by  issuing 
a  restraining  order,  after  judgment  for 
the  defendants,  denying  an  injunction,  and 
pending  the  determination  of  a  motion  for 
a  new  trial.  Pierce  v.  Los  .Angeles.  159 
Cal.  516;  114  Pac.  818;  and  see  Pasadena 
V.  Superior  Court,  157  Cal.  786,  109  Pac. 
620,  where  the  authorities  are  cited  and  re- 
viewed. 

No  stay  where  proceedings  ended.  When 
the  existence,  of  the  judgment  appealeil 
from  affords  all  the  relief  awarded,  and 
there  is  no  proceeding  to  be  had  under  it, 
the  stay  provided  for  in  this  section  does 
not  apply.  Rogers  v.  Superior  Court,  126 
Cal.  183;  58  Pac.  452;  and  see  Foster  v. 
Superior  Court,  115  Cal.  279;  47  Pac.  58. 

Effect  of  stay.  The  stay  of  proceedings, 
])ending  appeal,  has  the  legitimate  effect 
of  keeping  them  in  the  condition  in  which 
they  were  when  the  stay  was  granted:  it 
operates  so  as  to  prevent  any  future  change 
in  the  condition  of  the  parties.  Schwarz 
V.  Superior  Court,  111  Cal.  106;  43  Pac 
580;  Vosburg  v.  Vosburg,  137  Cal.  493;  70 
Pac.  473;  Application  of  De  Lemos,  143 
Cal.  313;  76  Pac.  1115;  and  see  State  In 
vestment  etc.  Co.  v.  Superior  Court,  101 
Cal.  135;  35  Pac.  549.  The  superior  court, 
after  an  appeal  is  perfected  from  a  judg- 
ment, has  not  general  power  to  stay  exe- 
cution; but  where  execution  has  been 
stayed,  it  has  power  to  compel  the  sheriff 
to  respect  and  observe  such  stav.  Mannix 
V.  Superior  Court,  157  Cal.  730;  109  Pac. 
264.  A  stay  of  proceedings  upon  appeal 
from  an  order  for  the  ]iayment  of  alimony 
operates  as  a  supersedeas.  Mc.Vneny  v. 
Superior  Court,  150  Cal.  6;  S7  Pac.  i020. 
Tlu"  sureties  upon  an  undertaking  to  stay 
execution  on  appeal  cannot  be  liable  to 
any  motion  for  entry  of  judgment  against 
them,  so  long  as  the  principal  is  protected 
against   the  issuance  of  execution  aj^ainst 


946 


APPEALS   IN   GENERiiL. 


1066 


him.  Starr  v.  Kreuzberger,  131  Cal.  41;  63 
Pac.  134.  The  act  of  the  parties  in  pro- 
ceeding in  accordance  with  the  judgment 
is  not  affected  by  the  provision  that  the 
appeal  stays  the  enforcement  of  the  judg- 
ment, which  is  limited  to  proceedings  in 
the  court  below  on  the  judgment.  Eose  v. 
Mesmer,  131  Cal.  631;  63  Pac.  1010. 

Remedies  against  orders  made  pending 
appeal.  Where  an  action  of  interpleader 
has  been  dismissed,  and,  under  order  of  the 
court,  the  plaintiff  has  withdrawn  the 
money  deposited,  and  has  subsequently  ap- 
pealed from  an  order  setting  aside  the 
former  judgment  of  dismissal,  the  court 
has  no  jurisdiction,  pending  such  appeal, 
to  grant  an  order  for  the  repayment  of  the 
money  into  court,  and  prohibition  lies  to 
prevent  the  entering  of  such  order.  Kauf- 
man V.  Superior  Court,  108  Cal.  446;  41 
Pac.  476.  An  order  adjudging  a  person 
insolvent,  and  ordering  a  stay  of  proceed- 
ings, constitutes  one  order;  and  where  the 
appeal  is  from  the  whole  of  the  adjudica- 
tion, the  court  has  no  power  to  modify  the 
order  staying  the  proceedings,  pending  the 
appeal,  and  such  order  will  be  annulled  on 
certiorari.  Stateler  v.  Superior  Court,  107 
Cal.  536;  40  Pac.  949.  An  order  amend- 
ing a  judgment  appealed  from  is  erroneous, 
and  an  appeal  lies  from  such  order.  Bryan 
V.  Berry,  8  Cal.  130. 

Supersedeas.  The  object  of  a  writ  of 
supersedeas  is,  to  stay  proceedings  in  the 
trial  court  upon  the  judgment  appealed 
from,  and  to  suspend  its  enforcement  until 
a  determination  of  the  appeal.  Hoppe  v. 
Hoppe,  99  Cal.  536;  34  Pac.  222.  A  super- 
sedeas deprives  the  superior  court  of  all 
power  to  enforce  the  order  appealed  from, 
either  by  execution  or  by  proceedings  for 
contempt,  or  through  the  appointment  of 
a  receiver.  McAneny  v.  Superior  Court, 
150  Cal.  6;  87  Pac.  1020.  Upon  appeal 
from  a  judgment  in  an  action  to  determine 
water  rights,  which  confers  upon  the  plain- 
tiff the  right  to  lay  a  pipe  through  the 
land  of  the  defendant,  the  statutory  under- 
taking on  appeal  in  the  sum  of  three  hun- 
dred dollars  stays  proceedings  in  the  court 
below  upon  the  judgment;  and  a  super- 
sedeas will  issue  to  res'train  any  further 
proceedings.  Daly  v.  Ruddell,  129  Cal.  300; 
61  Pac.  1080.  Upon  appeal  from  a  judgment 
in  favor  of  a  pledgee  of  a  life-insurance 
policy,  foreclosing  the  lien  of  the  pledge, 
the  ordinary  bond  upon  appeal,  in  the  sum 
of  three  hundred  dollars,  is  sufficient  to 
stay  execution;  and  a  supersedeas  will 
issue  to  prevent  a  sale  of  the  policy  under 
the  decree,  pending  the  appeal.  Commer- 
cial etc.  Bank  v.  Hornberger,  134  Cal. 
90;  66  Pac.  74.  Where  the  appellant,  in 
a  state  court,  has  filed  a  supersedeas  bond 
staying  execution  of  the  judgment,  he  has 
the  right  to  insist  that  the  status  quo  shall 
be  preserved  until  the  final  adjudication  of 
the   controversy   upon   the   appeal;    hence, 


pending   such   appeal,   it   is   error   for   the 
state   court   to   order   the   receiver   of   the 
appellant's  property,  in  controversy,  to  turn 
it  over  to  a  United  States  marshal.    Isom 
v.    Rex    Crude    Oil    Co.,    147    Cal.    663;    82 
Pac.  319.     The  writ  of  supersedeas  is  di- 
rected to  the  court  whose  action  is  sought 
to  be  restrained,  or  to  some  one  of  its  offi- 
cers; it  is  limited  to  restraining  any  pro- 
ceeding upon  the  judgment  appealed  from, 
and  cannot  be  employed,  for  any  purpose, 
upon  persons  not  parties  to  the  judgment. 
Dulin    V.    Pacific    Wood    etc.    Co.,    98    Cal. 
304;  33  Pac.  123;  and  see  Rose  v.  Mesmer, 
131  Cal.  631;  63  Pac.  1010.     The  power  of 
a   guardian   is   stayed,   pending  an   appeal 
from    the    order    appointing    him,    by    the 
filing  of  a  proper  undertaking  on  appeal; 
but    if    he,    notwithstanding    such    appeal, 
threatens    to    act    as   guardian,    a   writ   of 
supersedeas    will    be    issued    against    him. 
Coburn  v.   Hynes,   161   Cal.   685;    120   Pac. 
26.     An  appeal  from  an  order  setting  aside 
the  satisfaction  of  a  judgment  has  not  the 
effect   of   restoring   the   entry   of   satisfac- 
tion,   nor    of    precluding   the    execution    of 
the  judgment  pending  the  ajjpeal;  and  exe- 
cution   will    not   be   stayed   by   a   writ    of 
supersedeas,  mandamus,  or  prohibition,  in 
the  absence  of  a  direction  from  the  trial 
judge.     Bateman    v.    Superior    Court,    139 
Cal.  141;  72  Pac.  922.     The  power  to  issue 
a  writ  of  supersedeas  is  one  of  the  inherent 
powers  of  a  court  of  appeals,  to  be  exer- 
cised in  any  proper  case,  when  it  appears 
necessary   to  protect  the  rights   of   a  liti- 
gant  until   final   determination  of   his   ap- 
peal.   Reed  Orchard  Co.  v.  Superior  Court, 
19  Cal.  App.  648;   128  Pac.  9,  18.     A  writ 
of  supersedeas  may  properly  be  issued  by 
the  appellate  court  to  arrest  further  action 
by  the  court  below,  after  the  issuance  of 
a  mandatory  injunction.    Clute  v.  Superior 
Court,  155  Cal.   15;   132  Am.  St.  Rep.  54; 
99    Pac.    362.     The    appellate    court    will 
grant   a  writ   of   supersedeas   to   stay   the 
■  execution  of  a  judgment,  where  an  order 
was  made,  granting  execution,  while  there 
was  a  proper  bond  on  file  to  stay  execu- 
tion.    Brown   v.   Rouse,    115    Cal.    619;    47 
Pac.  601.     Pending  an  appeal  from  an  order 
made    after    final    judgment    for    the    pay- 
ment of  money,  the  undertaking  on  appeal 
from   the   order   having  been   waived,   but 
no    appeal    having    been    taken    from    the 
judgment,  the  appellate   court  has  no  au- 
thority to  grant  a  stay  of  execution  upon 
the  judgment.    Carit  v.   Williams,  67   Cal. 
580;  8  Pac.  93.     Upon  appeal  from  a  judg- 
ment ordering  an  accounting  in  a  partner- 
ship business,  and  enjoining  the  defendants 
from  interfering  with  the  plaintiff  in  his 
conduct    of    the    business    as    a    managing 
partner,    the   appellate   court   will   deny   a 
writ  of  supersedeas,  where  the  amount  of 
a  stav  bond  upon  such  appeal  was  not  fixed. 
Doudell    V.    Shoo,   159    Cal.    448;    114   Pac. 
579.     A  writ  of  supersedeas  will  not  issue, 


1067 


EFFECT  ON  LEVY — MATTERS  NOT  AFl'ECTED. 


§946 


in  any  case,  where  the  statute  docs  not 
provide  for  a  stay  of  jiroccediiifis.  Kecd 
Orchard  Co.  v.  Superior  Court,  19  Cal.  App. 
648;  12S  Pac.  9,  18.  A  writ  of  supersedeaa, 
or  order  for  the  stay  of  proceedings  pend- 
ing on  an  appeal,  cannot  be  use<l  to  per- 
form the  functions  of  an  injunction  a^'ainst 
the  parties  to  the  action,  restraining  tlioni 
from  any  act  in  the  assertion  of  their 
rights,  other  than  to  iirevent  them  from 
using  the  proi-ess  of  the  court  to  enforce 
judgment.  Dulin  v.  Pacific  Wood  etc.  Co., 
98  Cal.  304;  33  Pac.  123;  Rose  v.  Mesmer. 
131  Cal.  631;  63  Pac.  1010.  Grounds  for 
staying  execution  of  a  judgment,  other 
than  upon  the  taking  of  an  appeal,  can- 
not be  urged  upon  a  motion  for  a  writ  of 
supersedeas  in  the  appellate  court,  but 
should  be  first  presented  in  the  trial  court. 
Swasey  v.  Adair,  SS  Cal.  203;  26  Pac.  83. 

Writ  of  prohibition.  Whether  the  ap- 
pellant is  a  party  aggrieved,  and  entitled 
to  appeal  from  an  ortier,  cannot  be  deter- 
mined upon  petition  for  a  writ  of  prohibi- 
tion to  prevent  the  trial  court  from  acting 
in  the  case,  until  the  appeal  is  heard  and 
determined.  Kaufman  v.  Superior  Court, 
lOS  Cal.  44(5;  41  Pac.  476. 

Release  from  levy  on  execution.  Under 
the  provisions  of  this  section  jirior  to  its 
amendment  in  1873-74,  the  perfecting  of 
an  appeal  from  a  money  judgment,  and 
the  filing  of  an  undertaking  to  stay  pro- 
ceedings, operated  merely  to  stay  proceed- 
ings on  the  judgment,  but  did  not  release 
from  levy  property  already  seized  bj'  the 
sheriff  under  an  execution  issued  on  the 
judgment  before  the  appeal  was  effected. 
Ewing  V.  Jacobs,  49  Cal.  72.  Upon  notice 
of  the  filing  of  the  notice  of  appeal,  and 
the  giving  of  the  undertaking  on  appeal, 
under  this  section,  to  stay  execution,  it 
is  the  duty  of  the  sheriff  to  release  from 
levy  all  property  taken  under  execution, 
regardless  of  the  sufficiency  or  insufficiency 
of  the  sureties,  and  he  cannot  retain  pos- 
session until  the  sureties  have  justified,  or 
until  their  justification  has  been  waived. 
Sam  Yuen  v.  McMann,  99  Cal.  497;  34  Pac. 
80.  A  sheriff  is  not  warranted  in  retain- 
ing money  collected  under  execution,  pend- 
ing an  appeal  from  the  judgment  on  which 
execution  has  not  been  stayed,  the  under 
taking  on  appeal  being  insufficient:  he 
should  pay  it  over  to  the  judgment  credi- 
tor, for  whom  it  was  collected.  Maze  v. 
Langford,  16  Cal.  A]^\  ^■^•'^;  117  Pac.  929. 

Effect  of  appeal  on  attachment.  Under 
this  section  and  §  ~^'l'^.  ante,  an  attachment 
may  be  continued  in  force,  pending  an  ap- 
peal by  the  plaintiff  from  a  judgment  in 
favor  of  the  defendant,  upon  the  plain- 
tiff's perfecting  his  appeal  and  filing  the 
required  undertaking;  and  this  does  not 
deprive  the  defendant  of  his  property  with- 
out due  process  of  law.  Primm  v.  Superior 
Court,  3  Cal.  App.  208;  84  Pac.  786.  This 
section  and  §  553,  post,  construed  together. 


permit  of  an  attachment  being  continued 
in  force,  pending  an  appeal  by  the  plain- 
tiff from  a  judgment  in  favor  of  the  de- 
fendant, ujion  the  j.laintiff'.s  jtcrfccting  his 
aiij)cal  and  filing  an  undertaking  as  re- 
quired V)y  the  final  clause  of  this  section. 
Priinm  v.  Superior  Court,  3  Cal.  App.  208; 
81  I'ac.  7SG.  Where,  i)ending  an  appeal  by 
the  plaintiff,  the  lien  of  an  attachment  on 
real  iiroi)erty  was  continued  by  an  order 
of  the  court,  under  this  section,  without 
authority,  and  the  effec^t  of  the  order  is 
to  imjtose  a  continuing  restraint  on  tho 
defendant's  right  to  the  untrammeled  en- 
joyment of  his  prof)erty,  he  is  entitled  to 
a  writ  of  i)rohil>itiou  restraining  the  court 
from  continuing  the  attachment;  and, 
under  such  circumstances,  the  order  will 
not  be  deemeil  a  comi)leted  judicial  act. 
Primm  v.  Sujierior  Court,  3  Cal.  App.  2<)H; 
84  Pac.  7S6. 

Proceedings  in  matters  not  affected  by 
order  appealed  from.  A  court  has  power 
to  proceed  upon  any  matter  in  an  action 
not  affected  by  the  order  appealed  from. 
Bliss  V.  Superior  Court,  02  Cal.  543;  Estate 
of  Thayer,  1  Cal.  App.  104;  81  Pac.  6."jS. 
An  appeal  from  an  order  refusing  to  dis- 
solve a  temporary  injunction  has  not  the 
legal  effect  of  suspending  the  jurisdiction 
of  the  court  over  so  much  of  the  action  as 
is  not  affected  by  the  order.  Bliss  v.  Su- 
perior Court,  62  Cal.  543;  and  see  Rogers 
v.  Superior  Court,  126  Cal.  183;  58  Pac.  452. 
The  settlement  and  filing  of  the  bill  of  ex- 
ceptions, after  judgment  and  appeal  taken, 
is  a  matter  embraced  in  the  action  and  not 
affected  by  the  judgment  appealed  from, 
and  is  within  the  power  of  the  court  after 
appeal  taken;  hence,  such  bill  of  excep- 
tions will  be  considered  on  appeal.  Colbert 
V.  Rankin,  72  Cal.  197;  13  Pac.  491. 
Pending  an  appeal  from  an  order  decree- 
ing a  partial  distribution  of  an  estate,  the 
court  is  not  <leprived  of  power  to  settle  the 
final  account  of  the  executor,  where  such 
account  docs  not  contain  any  item  relat- 
ing to  the  distribution.  Estate  of  Thayer, 
1  Cal.  App.  ](!4;  81  Pac.  658.  An  appeal 
from  an  order  granting  general  letters  of 
administration  has  only  the  effect  of  sus- 
pending the  order  appealed  from,  and  does 
not  in  any  manner  affect  or  suspend  the 
jurisdiction  of  the  court  over  the  distinct 
])roceedings  of  special  administration  of 
the  estate,  the  object  of  which  is  to  pre 
serve  the  estate  until  general  letters  testa- 
mentary or  of  administration  are  granted; 
hence,  the  court  has  jurisdiction,  pen<ling 
such  appeal,  to  order  the  administrator  to 
turn  over  all  the  property  in  his  possession, 
forthwith,  to  a  special  administrator  ap- 
pointed by  the  court.  Estate  of  Heaton, 
142  Cal.  116;  75  Pac.  662.  An  appeal  from 
an  order  revoking  the  probate  of  a  will  has 
not  the  effect  of  reviving  the  powers  and 
functions  of  the  former  executor;  an>l  the 
court  has  power  to  appoint  a  special  ad 


§946 


APPE.VLS   IN   GENERAL. 


1068 


ministrator  to  talce  charge  of  the  estate. 
Estate  of  Crozier,  65  Cal.  332;  4  Pac.  109. 
After  an  appeal  has  been  taken  from  an 
order  pendente  lite,  directing  the  husband 
to  pay  counsel  fees  in  an  action  by  the 
wife  for  permanent  support  and  mainte- 
nance, the  trial  court  has  power  to  direct 
the  payment  of  further  counsel  fees  to  en- 
able the  wife  to  prosecute  her  action  on 
appeal.  Ex  parte  Winter,  10  Cal.  291;  11 
Pac.  630.  Pending  an  appeal  from  a  de- 
cree of  divorce,  the  trial  court  still  has 
jurisdiction  to  grant  temporary  alimony, 
as  the  matter  is  not  affected  by  the  judg- 
ment appealed  from;  such  alimony  cannot 
be  granted  by  the  appellate  court.  Reilly 
V.  Eeilly,  60  Cal.  624.  Where  a  receiver  is 
appointed  at  the  request  of  the  plaintiff, 
for  a  purpose  ancillary  to  the  main  object 
of  the  action,  and  judgment  is  afterwards 
rendered  in  favor  of  the  defendant,  an  ap- 
peal by  the  plaintiff  from  the  judgment 
does  not  deprive  the  lower  court  of  juris- 
diction to  hear  and  determine  a  motion 
made  by  the  defendant  for  the  discharge 
of  the  receiver.  Baughman  v.  Superior 
Court,  72  Cal.  572;  14  Pac.  207.  Pending 
an  appeal,  the  approval  of  an  undertaking 
may  be  set  aside  by  the  trial  court;  and 
the'  filing  of  the  transcript  on  appeal  has 
not  the  effect  of  taking  away  such  power. 
Palmer  v.  Galvin,  2  Cal.  Unrep.  446;  6 
Pac.  99.  An  appeal  from  an  order  dis- 
missing a  motion  to  vacate  a  prior  order 
can  have  no  effect  to  stay  proceedings  on 
such  prior  order.  Credits  Commutation  Co. 
v.  Superior  Court,  140  Cal.  82;  73  Pac.  1009. 
An  adjudication  in  bankruptcy,  though 
filed  in  the  appellate  court,  by  a  defendant, 
subsequently  to  an  appeal,  does  not  stay 
the  appeal  in  the  state  court.  Eeynolds  v. 
Pennsvlvania  Oil  Co.,  150  Cal.  630;  89 
Pac.  610. 

Court  may  dispense  with  or  limit  se- 
curity. This  section  applies  to  cases  in 
which  the  executor,  administrator,  or 
guardian  is  a  party  plaintiff  or  defendant 
in  an  action,  and  he  appeals  from  a  judg- 
ment or  order  in  such  action;  but  it  does 
not  apply  to  an  appeal  by  an  adminis- 
trator from  an  order  directing  him  to  pay 
a  claim  against  the  estate.  Ex  parte  Or- 
ford,  102  Cal.  656;  36  Pac.  928.  An  appeal 
from  an  order  of  distribution  by  an  ex- 
ecutor does  not  entitle  him  to  claim  the 
benefit  of  §  965,  post,  as  to  undertakings 
on  appeal,  such  appeal  not  being  from  an 
order  made  in  the  settlement  of  the  estate 
of  which  he  is  executor;  and  to  entitle 
such  executor  to  the  benefit  of  §  946,  an 
order  must  be  made  dispensing  with  the 
undertaking,  within  the  time  allowed  for 
filing  the  same.  Estate  of  Skerrett,  80  Cal. 
62;  22  Pac.  85.  An  administrator,  in  ap- 
pealing from  an  order  revoking  his  ap- 
pointment, is  not  acting  in  another's  right, 


within  the  meaning  of  this  section,  pro- 
viding for  an  oriler  dispensing  with  the 
undertaking  on  appeal.  Estate  of  Daniel- 
son,  88  Cal.  4S0;  26  Pac.  505.  It  is  not 
indispensably  necessary  that  a  judgment 
should  have  been  rendered  against  an  ex- 
ecutor in  his  representative  capacity,  in 
order  to  warrant  the  county  in  dispensing 
with  the  undertaking;  but  it  is  sufficient  if 
a  showing  is  made  that  the  matter  in  liti- 
gation really  involves  the  rights  of  the 
estate,  and  that  if  the  judgment  shall  be 
affirmed  the  property  rights  of  such  estate 
will  be  affected  and  its  assets  diminished. 
Kirsch  v.  Derby,  93  Cal.  573;  29  Pac.  218. 
A  municipal  officer,  proceeded  against  in 
his  official  capacity,  and  not  as  an  in- 
dividual, is  within  this  section,  and  on 
appeal  by  him  the  undertaking  on  appeal 
may  be  dispensed  with.  Scheerer  v.  Edgar, 
67  Cal.  377;  7  Pac.  760;  Von  Schmidt  v. 
Widber,  99  Cal.  511;  34  Pac.  109.  The 
board  of  education  of  the  city  and  county 
of  San  Francisco  must,  upon  appeal,  give 
an  undertaking,  or  procure  an  order  of  the 
court  dispensing  with  it:  such  board  does 
not  represent  the  city  and  county.  Mitchell 
V.  Board  of  Education,  137  Cal.  372;  70 
Pac.  ISO.  To  entitle  an  executor  to  the 
benefit  of  this  section,  the  order  dispensing 
with  the  undertaking  must  be  made  within 
the  time  for  filing  the  same:  after  the  ap- 
peal has  lapsed,  it  cannot  be  restored  by 
an  order  subsequently  made:  and  a  diree 
tion  that  such  order  shall  be  entered,  nunc 
pro  tunc  is  unavailing.  Estate  of  Skerrett, 
80  Cal.  62;  22  Pac.  85.  To  entitle  certain 
parties  to  appeal,  without  filing  an  under- 
taking, the  order  dispensing  with  the  under- 
taking must  be  made  within  the  time  fixed 
by  law  for  filing  the  same.  Crowley  Launch 
etc.  Co.  V.  Superior  Court,  10  Cal.  App.  342; 
101  Pac.  935;  Estate  of  Skerrett,  80  Cal. 
63;  22  Pac.  85.  An  order  dispensing  with 
an  undertaking  on  appeal,  made  by  the 
judge  who  tried  the  case,  while  the  court 
was  in  session,  and  filed  with  the  clerk, 
but  not  entered  in  the  minutes,  is  an  order 
of  the  court,  within  this  section.  Von 
Schmidt  v.  Widber,  99  Cal.  511;  34  Pac. 
109. 

Necessity  that  executor  or  administrator  give 
bond  on  appeal  from  revocation  of  probate  or 
grant  of  letters.    Si-e  note  20  Ann.  Cas.  416. 

Effect  of  appeal  from  injunction  upon  jurisdic- 
tion of  trial  court  to  punisb  contempt  for  its  vio- 
lation.   See  note  14  L.  K.  A.   (X.  S.)    1150. 

Jurisdiction  to  award  temporary  alimony,  suit 
money,  or  counsel  fees  pending  appeal  in  divorce 
suit.     See  note  27  L.   II.  A.    (X.   S.  )    712. 

Power  of  trial  court  to  correct  its  record  after 
appeal.    See  note  31  L.  R.  A.   (X.  S.)   207. 

CODE  COMMISSIONERS'  NOTE.  Merced 
Mining  Co.  v.  Fremont,  7  Cal.  132:  Hicks  v. 
Michael,  15  Cal.  109;  Mokelumne  Hill  etc.  Min. 
Co.  V.  Woodburv,  10  Cal.  185;  Ross  v.  Austin,  2 
Cal.  183;  Woodbury  v.  Bowman,  13  Cal.  634; 
Smith  V.  Pollock,  2  Cal.  92;  Dobbins  v.  Dollar- 
hide,  15  Cal.  374. 


10G9 


UNDERTAKING JUSTIFICATION. 


§§04T,!)1,S 


§947.  Undertaking  may  be  in  one  instrument  or  several.  The  midcr- 
takin-is  prescribed  by  sections  nine  liiiiulred  and  rorty-oiie,  nine  hundred 
and  forty-two,  nine  hundred  and  forty-three,  and  nine  hundred  and  forty- 
five,  may  be  in  one  instrument  or  several,  at  the  option  of  the  appelhmt. 

niont,  and  one  for  the  j>aymcnt  of  waste 
and  such  doficioncy  as  niay  remain  duo 
after  the  sale  of  the  property,  and  all 
these  iin<lertakinf;8  may  he  in  one  instru- 
ment or  several,  at  the  ojttion  of  the  ai)F)el- 
lant.  Kn<;lun<l  v.  Lewis,  2.j  C'al.  'M7.  The 
undertakings  on  appeal  and  to  stay  execu- 
tion may  be  contained  in  one  instrument, 
where  the  undertakings,  and  the  objects 
for  which  they  are  executed,  can  be  clearly 
distinguished.  Sharon  v.  Sharon,  68  C'al. 
326;  9Pac.  187. 


Legislation  S  947.  Knaot.-d  March  11.  1872; 
b.Tspd  on  Practice  Act.  §  3r)4  (New  York  Code. 
S  340),  which  read:  "The  uiidertakiiif;  prescrilied 
by  sections  ;i48,  349,  350,  and  3.J2,  may  he  in 
one  instrument,  or  several,  at  the  uiuion  of  the 
appellant." 

Undertaking  may  be  in  several  instru- 
ments. If,  in  foreclosure  cases,  a  .judg- 
nioiit  in  personam  is  rendered  against  the 
defendants,  and  also  one  enforcing  the  lien, 
and  an  appeal  is  taken  from  the  whole 
judgment,  in  order  to  stay  proceedings 
upon  the  whole  judgment  the  appellant 
must  give  an  undertaking  for  costs,  one  in 
double   the   amount   of  the  personal  judg- 


CODE   COMMISSIONERS'  NOTE.     Englund   v. 
Lewis,  25  Cal.  356. 


§  948.  Justification  of  sureties  on  undertakings  on  appeal.  The  ad- 
verse party  may  except  to  the  sufficiency  of  the  sureties  to  any  of  the  un- 
dertakings mentioned  in  sections  nine  hundred  and  forty-one,  nine  hundred 
and  forty-two,  nine  hundred  and  forty-three,  and  nine  hundred  and  forty- 
five,  at  any  time  within  thirty  days  after  notice  of  the  filing  of  such  under- 
taking; and  unless  they  or  other  sureties,  within  twenty  days  after  tiie 
appellant  has  been  served  with  notice  of  such  exception,  justify  before  a 
judge  of  the  court  below,  upon  five  days'  notice  to  the  respondent  of  the 
time  and  place  of  ju.stification,  execution  of  the  judgment,  order,  or  decree 
appealed  from  is  no  longer  stayed;  and  in  all  cases  where  an  undertaking 
is  required  on  appeal  by  the  provisions  of  this  title,  a  deposit  in  the  court 
below  of  the  amount  of  the  judgment  appealed  from,  and  three  hundred 
dollars  in  addition,  shall  be  equivalent  to  filing  the  undertaking;  and  in 
all  cases  the  undertaking  or  deposit  may  be  waived  by  the  written  consent 
of  the  respondent. 


Justification   of  sureties.     Ante,  §  495. 

Legislation  §  948.  1.  Knacted  March  11,  1873; 
based  on  Practice  Act,  §  355  (New  York  Code, 
§341),  as  amended  by  Stats.  1865-66,  p.  708, 
which  read:  "An  undertaking  on  appeal  shall  be 
of  no  effect  unless  it  be  accompanied  by  the  affi- 
davit of  the  sureties  that  they  are  each  worth  the 
amount  specified  therein  over  and  above  all  their 
just  debts  and  liabilities  e.xclusive  of  property 
exempt  from  execution,  except  where  the  judg- 
ment exceeds  three  thousand  dollars  and  the  un- 
dertaking is  executed  by  more  than  two  sureties; 
they  may  state  in  their  afTfidnvit  that  they  are 
severally  worth  amounts  less  than  that  expressed 
in  the  undertaking,  if  the  whole  amount  be  equiva- 
lent to  that  of  two  sufficient  sureties.  The  ad- 
verse party,  however,  may  except  to  the  sufticieiicy 
of  the  sureties  to  the  undertaking  or  undertakinss 
mentioned  in  section  three  hundred  and  forty- 
nine,  three  hundred  and  fifty,  three  hundred  and 
fifty-one,  and  three  hundred  and  fifty-two,  at  anv 
time  within  thirty  days  after  the  filing  of  such 
undertaking;  and  unless  they  or  other  sureties, 
within  twenty  days  after  the  appellant  or  ap]>el- 
lants  shall  have  been  served  with  notice  of  such 
exception,  justify  before  a  judge  of  the  court  be- 
low, a  county  judge,  or  county  clerk,  upon  five 
days'  notice  to  the  appellant,  execution  of  the 
judgment  or  decree  appealed  from-  shall  be  no 
longer  stayed:  and  in  all  cases  where  an  under- 
taking is  required  on  appeal  by  the  provisions  of 
this  act  a  deposit  in  the  court  below  of  the 
amotint  of  the  judgment  appeali'd  from,  and  three 
hundred  dollars  in  addition,  shall  be  equivalent 
to  filing  the  undertaking,  and  in  all  cases  the 
undertaking    or    deposit    may    be    waived    by    the 


written  consent  of  the  respondent."  When  en- 
acted in  1872,  §  948  read  as  now.  except  for  the 
amendments  of  1873-74,  1880,  and  1905. 

3.  Amended  by  Code  Amdts.  1873-74.  p.  338. 
d)  omitting  "undertaking  or"  before  "undertak- 
ings"; (2)  substituting  "respondent  of  the  time 
and  place  of  justification"  for  "ai>pellant" ;  (3) 
inserting  "order"   after  "judgment." 

3.  Amended  by  Code  Amdts.  1S80.  p.  6,  (1) 
inserting  "any  of"  before  "the  nndertakinirs  men- 
tioned," (2)  omitting  "a  county  judjre"  after 
"court  below,"  and  (3)  substituting  "shall  be" 
for  "is"  before  "equivalent." 

4.  Amendment  by  Stats.  1901,  p.  173;  un- 
constitutional.    See  note  ante.  §  5. 

5.  Amended  by  Stats.  1905,  p.  155,  (1)  in- 
serting "notice  of"  before  "the  filing"  and  (2) 
omitting  "or  county  clerk"  after  "court  below." 

Exception  to  sureties.  An  objection  to 
the  form  of  the  affidavit  attached  to  an 
undertaking  on  apjieal  is  not  an  objection 
to  the  sufficiency  of  the  sureties,  nor  an 
objection  which  requires  them  to'  justify 
before  the  court  below.  Schacht  v.  Odell, 
52  Cal.  447.  The  time  to  except  to  the 
sureties  begins  to  run  from  the  filing  of 
the  undertaking,  and  not  from  the  service 
of  the  notice  of  appeal.  Brown  v.  Green, 
65  Cal.  21' 1;  ,'{  Pac.  Sll. 

Justification  of  sureties.     The  justifica 
tion  of  the  sureties  on  a  bond  is  a  thing 


948 


APPEALS   IN   GENERAL. 


1070 


apart  from  its  validity;  but  the  qualifica- 
tion of  the  sureties  is  a  material  part  of 
the  bond.  Maze  v.  Langford,  16  Cal.  App. 
743;  117  Pac.  929.  A  corporation  or- 
ganized for  the  purpose  of  becoming  a 
surety  upon  bonds  or  undertakings,  not- 
withstanding the  provisions  of  §§  1056, 
1057,  post,  may  be  required,  upon  excep- 
tion to  its  sufficiency  as  surety,  under  this 
section,  to  shovr  surplus  assets  equal  to 
the  amount  of  its  undertaking.  Fox  v. 
Hale  etc.  Mining  Co.,  97  Cal.  353;  32  Pac. 
446.  In  a  proper  case,  where  the  sureties 
on  a  stay  bond  have  been  excepted  to,  the 
appellant  may  give  a  new  notice  of  jus- 
tification, and,  at  the  time  noticed,  if  suffi- 
cient time  within  the  prescribed  limits  is 
left,  may  tender  a  new  bond,  the  sureties 
upon  which  may  then  justify.  Brown  v. 
Rouse,  115  Cal.  619;  47  Pac.  601.  Where, 
on  account  of  the  insufficiency  of  the 
undertaking  on  appeal,  the  appellant  files 
a  new  undertaking  in  the  appellate  court, 
approved  by  one  of  the  justices,  the  re- 
spondent cannot  require  the  sureties  in 
the  substituted  undertaking  to  justify. 
Stevenson  v.  Steinberg,  32  Cal.  373. 

Justification  before  whom.  Before  the 
amendment  to  this  section  in  1905,  the 
county  clerk  and  a  judge  of  the  superior 
court  were  vested  by  the  statute  with 
equal  authority -as  to  the  justification  of 
sureties.  Boyer  v.  Superior  Court,  110  Cal. 
401;  42  Pac.  892.  The  decision  of  the 
clerk  of  the  court,  upon  the  justification  of 
the  sureties  before  him,  could  not  be  re- 
viewed by  the  appellate  court;  the  statute 
designated  that  officer  as  a  tribunal  for 
hearing  and  determining  that  question,  and 
provided  no  mode  by  which  his  conclusion 
might  be  reviewed.  Kreling  v.  Kreling, 
116  Cal.  458;  48  Pac.  383;  Boyer  v.  Su- 
perior Court,  110  Cal.  401;  42  Pac.  892. 
Where  the  respondent  excepts  to  the  sure- 
ties on  the  undertaking  on  appeal,  the 
sureties  must  justify  before  a  county  judge 
of  the  county  where  the  suit  is  pending, 
where  that  officer  is  selected;  and  where 
such  justification  was  before  the  county 
judge  of  another  county,  where  the  sure- 
ties resided,  the  appeal  will  be  dismissed. 
Roush  V.  Van  Hagen,  18  Cal.  668  (decided 
before  the  amendment  to  this  section  in 
1880). 

Effect  of  failure  to  justify.  The  failure 
of  the  sureties  to  justify,  where  excepted 
to,  does  not  establish  a  failure  to  perfect 
the  appeal,  and  is  not  a  ground  for  a 
dismissal  of  the  appeal  (Schacht  v.  Odell, 
52  Cal.  447;  De  Jarnatt  v.  Marquez,  127 
Cal.  558;  78  Am.  St.  Rep.  90;  60  Pac.  45; 
Klingler  v.  Henderson,  137  Cal.  561;  70 
Pac.  617):  it  merely  affects  the  stay  of 
execution.  Swasey  v.  Adair,  83  Cal.  136; 
23  Pac.  284;  and  see  Wittram  v.  Cromme- 
lin,  72  Cal.  89;  13  Pac.  IGO.  There  is  no 
effectual  provision  for  the  justification  of 
the   sureties    on    the    undertaking   for    the 


appeal;  although  they  may  be  required  to 
justify  under  this  section,  yet,  if  they  fail 
to  justify,  the  only  consequence  is,  that 
the  execution  is  no  longer  stayed:  the  ap- 
peal would  therefore  be  effectual  although 
the  sureties  are  worthless.  Duncan  v. 
Times-Mirror  Co.,  109  Cal.  602;  42  Pac. 
147.  The  statutes  contemplate  but  one 
proceeding  to  stay  the  execution,  and  the 
failure  of  the  sureties  to  justify  leaves  the 
I^laintiff  in  a  ])osition  to  enforce  the  execu- 
tion of  his  judgment;  and  although  a  new 
undertaking  cannot  afterwards  be  filed  in 
the  court  below,  yet  the  appellate  court 
has  an  inherent  power  to  secure  to  the  ap- 
pellant the  fruits  of  a  successful  appeal, 
if  it  can  be  done  without  depriving  the 
respondent  of  a  substantial  right,  and  may 
make  an  order  to  operate  as  a  supersedeas, 
upon  proper  terms.  Hill  v.  Finnigan,  54 
Cal.  493.  Where  the  appellant  filed  the 
statutory  undertaking  to  stay  proceedings 
pending  the  appeal,  but,  through  a  mis- 
taken method  of  procedure,  failed  to  have 
the  sureties  justify  when  required,  and 
two  stay  bonds  were  disapproved  by  the 
clerk,  the  proceedings  were  not  thereby 
stayed;  yet,  good  faith  being  shown,  a  new 
stay  bond  will  be  permitted  to  be  filed  in 
the  appellate  court,  when  approved  by  the 
superior  judge  upon  notice,  and  a  writ  of 
supersedeas  will  be  granted.  Nonpareil 
Mfg.  Co.  V.  McCartney,  143  Cal.  1;  76  Pac. 
653.  A  stay  bond  upon  appeal  from  a 
judgment  foreclosing  a  mortgage  is  oper- 
ative, notwithstanding  the  pecuniary  in- 
sufficiency of  the  sureties,  until  the  failure 
of  the  sureties  to  justify  after  exception 
taken;  and  a  sale  made  after  the  giving  of 
such  stay  bond,  and  prior  to  exception 
taken  to  the  sureties,  is  void,  and  should 
be  set  aside  upon  motion.  Wheeler  v. 
Karnes,  130  Cal.  618;  63  Pac.  62. 

Waiver  of  undertaking.  Under  a  stipu- 
lation that  the  appellant  has  in  due  time 
given  and  filed  a  good  and  sufficient  under- 
taking on  appeal,  it  must  be  supposed 
either  that  a  good  and  sufficient  under- 
taking was  filed,  or  that  the  filing  of  the 
undertaking  was  waived.  Forni  v.  Yoell, 
99  Cal.  173;  33  Pac.  887.  Waiver  of  the 
undertaking  on  appeal  must  be  made  be- 
fore the  time  for  filing  the  undertaking 
has  expired;  Vjut  it  need  not  be  filed  within 
that  time,  if  it  is  required  to  be  filed  at  all. 
Newman  v.  Maldonado,  3  Cal.  Unrep.  540; 
30  Pac.  833.  A  stipulation  to  have  the 
case  placed  on  the  calendar  out  of  its  order 
for  hearing  does  not  constitute  a  waiver 
of  the  filing  of  the  undertaking  on  appeal. 
Little  V.  Jacks,  68  Cal.  343;  8  Pac.  856;  9 
Pac.  264;  11  Pac.  128.  Where  the  sureties 
on  a  stay  bond,  after  exception  to  their 
sufficiency,  offered  to  justify,  but  the  mat- 
ter was  continued,  from  time  to  time,  at 
the  respondent's  suggestion,  and  he  ap- 
parently abandoned  the  proceeding  to  jus- 
tify, his  coutentiou  that  the  sureties  failed 


1071 


UNDERTAKINGS  IN  CASES  NOT  SPECIFIED. 


§949 


tlio  suit  is  pi'iidinj;,  where  that  offircr  ii  lelocled, 
nii<l  wluTi-  Hiirh  juHtifliatinii  won  bofore  the 
county  juflei-  of  uiiothi-r  rouiity,  whi-re  the  nun-- 
tics  ri'siili-il,  thn  nppral  will  be  dismi««<'il.  Rounh 
V.  Van  IlaK'-n,  IH  Cal.  G<>H.  Justification  inadu 
before  a  county  ju<l(;e  of  a  county  other  than 
that  where  the  judtnient  wan  rendered,  in  not 
elTectual  for  any  purpose.  'I'evis  v.  O'Connell, 
21  Cal.  r>\'2.  A  failure  to  justify  when  excep- 
tions are  taken,  leaves  the  appeal  as  thoiiKh  no 
undertakinK  had  been  filed,  and  ineffectual  for 
any  purpose.  Lower  v.  Knox.  10  Cal.  490. 
After  notice  of  exception  to  the  sufficiency  of 
the  sureties,  they  cannot  justify  without  notice 
to  the  adverse  party.  .Stark  v.  Harri'tt.  1.5  Cal. 
361.  AVhen,  on  account  of  the  insuflicii-ncy  of 
the  undertaking  on  appeal,  the  appellant  filei  a 
ni'W  undertaking  in  the  appellate  court,  ap- 
proved by  one  of  the  justices,  the  respondent 
cannot  re(|uire  the  sureties  to  justify.  .Stevenson 
V.  Steinberc,  32  Cal.  373.  If  the  sureties  are 
e.\cei)ted  to,  and  appear  before  the  justice  to 
testify,  and  the  party  excepting  then  states  be- 
fore the  justice  that  ho  knows  the  sureties  to  be 
good,  and  only  excepted  because  his  attorney 
told  him  to  do  so,  this  is  a  waiver  of  justifica- 
tion.    Blair  v.  Hamilton,  32  Cal.  49. 


to  .I'listify  cannot  be  sustained,  lliihliard 
v.  University  Bank,  120  Cal.  632:  52  Pac. 
1070. 

Requisites  of  undertakings.  See  post, 
§  1057. 

CODE  COMMISSIONERS'  NOTE.  A  party 
pave  notice  of  justification  before  the  clerk  of 
the  court  on  the  7th  of  Noveml)er,  between  tho 
hours  of  10  A.  M.  and  5  P.  M.  of  that  day, 
and  the  sureties  appeared  upon  such  notice  soon 
after  ten  of  that  day.  It  was  held  that  the 
clerk  acted  properly  in  refusing  to  take  thi'ir 
justification,  the  opposite  party  being  absent, 
until  the  last  hour  stated  in  the  notice.  Lower 
v.  Knox,  10  Cal.  480.  A  respondi'nt  gave  notice 
April  20th,  excepting  to  the  sutliciency  of  the 
sureties  on  an  undertakiiii;  on  appeal,  and  ap- 
pellant then  gave  notice  that  the  sureties  would 
justify  on  the  25th  of  tlie  same  month,  and 
oiders  were  afterwards  made  extending  the  time 
of  justification  to  May  1st.  Held,  that  the 
statute  upon  this  point  is  peremptory,  and  that 
the  court  had  no  power  to  extend  the  time. 
Roush  V.  Van  Ilagcn,  17  Cal.  121.  Where  re- 
spondent excepts  to  the  sureties,  they  must  jus- 
tify  before   a   county   judge   of    the   county   where 

§  949.  Undertakings  in  cases  not  specified.  In  cases  not  provided  for 
in  sections  nine  hundred  and  i'orty-two,  nine  hundred  and  forty-three,  nine 
hundred  and  forty-four,  and  nine  hundred  and  forty-five,  the  perfecting'  of 
an  appeal  by  giving  the  undertaking  or  making  the  deposit  mentioned  in 
section  nine  hundred  and  forty-one,  stays  proceedings  in  the  court  below 
upon  the  judgment  or  order  appealed  from,  except  Avhere  it  directs  the  sale 
of  perishable  property;  in  which  ease  the  court  below  may  order  the  i)rop- 
erty  to  be  sold  and  the  proceeds  thereof  to  be  deposited,  to  abide  the  judt:- 
ment  of  the  appellate  court;  and  except,  also;  where  it  adjudges  the  defend- 
ant guilty  of  usurping,  or  intruding  into,  or  unlawfully  holding  a  public 
office,  civil  or  military,  within  this  state,  and  except,  also,  where  the  order 
grants,  or  refuses  to  grant,  a  change  of  the  place  of  trial  of  an  action;  and 
except  also  where  it  orders  a  corporation  or  its  officers  or  agents,  or  any 
of  them,  to  give  to  a  person  adjudged  to  be  a  director,  stockholder  or  mem- 
ber of  such  corporation  a  reasonable  opportunity  to  inspect  or  take  copies 
of  such  books,  papers  or  documents  of  the  corporation  as  the  court  finds 
that  such  director,  stockholder  or  member  is  entitled  by  law  to  inspect  or 

copy. 

provided  for  in  §§  942-945,  ante.  Kohr- 
bacher  v.  Sujierior  Court,  144  Cal.  631;  7S 
Pac.  22;  Olsen  v.  Birch,  1  Cal.  App.  99;  SI 
Pac.  656;  Los  Angeles  v.  Ponicroy,  132  Cal. 
340;  64  Pac.  477;  Carit  v.  Williams,  67  Cal. 
580;  S  Pac.  93. 

Construction  of  section.  The  provision 
of  this  section,  declaring  that  the  perfect- 
ing of  an  appeal  stays  proceedings  in  the 
court  below  upon  the  judgment  or  order 
ai>pealed  from,  creates  a  statutory  super- 
sedeas, or  a  suspension  of  the  power  of  the 
court  below  to  issue  an  execution  on  the 
judgment  or  decree  appealed  from,  or  if  a 
writ  of  execution  is  issued,  a  prohibition 
against  the  execution  of  the  writ.  Oulin 
v.  Pacific  Wood  etc.  Co.,  98  Cal.  304;  33 
Pac.  123.  The  amendment  to  this  section 
in  1905  did  not,  by  implication,  repeal 
§  1254,  post.  Keed  Orchard  Co.  v.  Superior 
Court,  19  Cal.  App.  648;  128  Pac.  9. 


Appeal  in  condemnation  proceedings  is  not  a 
stay  when.    See  post,  §  1257. 

Legislation  §  949.  1.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  3.">6  (New  York  Code, 
§  342),  which  read:  "In  cases  'not  provided  for 
in  sections  349,  350,  351,  and  352,  the  perfecting 
of  an  appeal,  by  giving  the  undertaking,  and  the 
justification  of  "the  sureties  thereon,  if  required, 
or  making  the  deposit  mentioned  in  section  348, 
shall  stay  proceedings  in  the  court  below  upon 
the  judgment  or  order  appealed  from:  except  that 
where  it  directs  the  sale  of  perishable  property, 
the  court  below  may  order  the  property  to  be 
.■iold,  and  the  proceeds  thereof  to  be  deposited,  to 
abide  the  judgment  of  the  appellate  court." 
When  enacted  in  1872,  §  949  read  as  at  present, 
exrcept  that  it  did  not  contain  the  last  two  excep- 
tions. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  403, 
adding   the   second   exception. 

3.  Amended  by  Stats.  1905,  p.  22,  adding 
the  last  exception. 

Scope  of  section.  This  section  refers 
only  to  a  stay  of  execution  upon  the  order 
or  judgment  appealed  from,   in   cases  not 


§949 


APPEALS   IN    GENERAL. 


1072 


Application  of  section.  This  section 
does  not  apply  where  there  is  not  an  ap- 
peal from  the  judgment,  but  only  from 
an  order  made  after  judgment,  denying  a 
motion  to  set  aside  an  execution.  Carit  v. 
Williams,  67  Cal.  5S0;  S  Pac.  93. 

Sufficiency  of  undertaking.  On  appeal 
from  a  judgment  foreclosing  liens  against 
a  vessel,  and  providing  for  a  sale  of  the 
vessel,  with  her  engines,  apparel,  etc.,  the 
undertaking  prescribed  by  §  941,  ante,  is 
sufficient  to  stay  execution,  and  an  under- 
taking under  §  942,  ante,  is  without  con- 
sideration and  void.  Olsen  v.  Birch,  1 
Cal.  App.  99;  81  Pac.  656.  On  appeal  from 
an  order  granting  a  new  trial,  an  under- 
taking for  damages  and  costs  is  a  sufficient 
undertaking  to  obtain  a  stay  of  proceed- 
ings pending  the  appeal.  Ford  v.  Thomp- 
son, 19  Cal.  118. 

Undertaking  not  required  is  void.  A 
stay  bond,  where  none  is  required,  is  with- 
out consideration  and  void.  Olsen  v.  Birch, 
ICal.  App.  99;  81  Pac.  656. 

Proceedings  stayed.  An  undertaking  on 
appeal,  under  §  941,  ante,  stays  the  pro- 
ceedings pending  the  appeal,  except  in  the 
cases  provided  for  in  §§  942-945,  ante, 
where  it  does  not  appear  that  the  property 
to  be  sold  under  the  execution  on  the  judg- 
ment appealed  from  is  perishable  property 
(Root  V.  Bryant,  54  Cal.  182);  hence,  a 
motion  to  stay  the  execution  will  be 
granted.  Cummings  v.  Cummings,  2  Cal. 
Unrep.  744;  13  Pac.  322;  Los  Angeles  v. 
Pomeroy,  132  Cal.  340;  64  Pac.  477.  A 
judgment  determining  the  right  to  money 
deposited  in  court  is  stayed  by  the  ordi- 
nary appeal  bond  for  costs,  although  a 
judgment  for  costs  is  also  made.  McCallion 
V.  Hibernia  Sav.  &  L.  Soc,  98  Cal.  442;  33 
Pac.  329.  Upon  appeal  from  a  judgment 
giving  the  plaintiff  the  right  to  lay  a  pipe 
through  the  land  of  the  defendant,  the  un- 
dertaking prescribed  by  §  941,  ante,  stays 
proceedings  in  the  court  below.  Daly  v. 
Euddell,  129  Cal.  300;  61  Pac.  1080.  On 
appeal  from  a  judgment  for  the  foreclosure 
of  a  mortgage  upon  personal  property,  exe- 
cution is  stayed  by  the  undertaking  on  ap- 
peal as  provided  by  §  941,  ante.  Snow  v. 
Holmes,  64  Cal.  232;  30  Pac.  806.  A  judg- 
ment foreclosing  a  pledge,  and  directing  a 
sale  of  the  pledged  property,  is  stayed  by 
an  undertaking  in  accordance  with  §  941, 
ante,  and  a  writ  of  supersedeas  will  issue 
to  prevent  the  execution  of  the  decree, 
pending  the  appeal.  Rohrbacher  v.  Su- 
perior Court,  144  Cal.  631;  78  Pac.  22.  An 
undertaking  on  appeal,  as  prescribed  by 
§  941,  ante,  stays  proceedings  on  the  judg- 
ment in  an  action  by  a  vendee  against  his 
vendor,  by  which,  after  directing  that  the 
plaintiff  recover  a  certain  sum  of  money 
from  the  defendant,  the  sale  of  the  land  is 
directed,  and  deficiency  judgment  provided 
for,  where,  at  the  time,  the  plaintiff  is  in 
possession  of  the  premises.   Owen  v.  Pomona 


Land  etc.  Co.,  124  Cal.  331;  57  Pac.  71.  A 
judgment  in  a  partnership  accounting,  ad- 
judging that  the  plaintiff'  is  entitled  to  a 
certain  sum,  and  directing  the  sale  of 
partnership  real  estate,  and  if  there  be 
any  deficiency,  a  judgment  for  such  defi- 
ciency against  the  defendant,  is  stayed  by 
the  undertaking  prescribed  by  §  941,  ante. 
Painter  v.  Painter,  98  Cal.  625;  33  Pac.  483. 
An  appeal  from  an  order  appointing  a  re- 
ceiver to  collect  alimony  does  not  operate 
to  enlarge  the  rights  of  the  plaintiff  to 
issue  an  execution  on  a  judgment  award- 
ing alimony,  so  as  to  prevent  its  being 
stayed  by  the  undertaking  required  by 
§  941,  ante.  Anderson  v.  Anderson,  123  Cal. 
445;  56  Pac.  61.  Where,  in  divorce  pro- 
ceedings, an  order  modifying  a  judgment 
awards  the  custody  of  a  child  of  the 
parties  to  the  father,  and  the  mother  de- 
livers the  child  to  the  father  in  pursuance 
thereof,  the  giving  of  an  undertaking  on 
appeal,  under  §  941,  ante,  does  not  entitle 
the  mother  to  the  custody  of  the  child, 
pending  the  appeal.  Application  of  De 
Lemos,  143  Cal.  313;  76  Pac.  1115.  A  de- 
cree in  partition,  settling  rights  of  prop- 
erty, is  stayed  by  an  undertaking  executed 
in  accordance  with  §  941,  ante.  Born  v. 
Horstmann,  80  Cal.  452;  22  Pac.  169.  Upon 
appeal  from  an  order  denying  a  motion  to 
set  aside  an  order  directing  execution  to 
issue,  the  giving  of  a  three-hundred-dollar 
undertaking  operates  to  stay  proceedings 
on  the  order  appealed  from,  but  proceed- 
ings on  a  former  judgment  and  execution 
are  not  stayed.  Weldon  v.  Rogers,  154  Cal. 
632;  98  Pac.  1070.  On  appeal  from  an 
order  refusing  to  vacate  a  prior  order  set- 
tling the  account  of  a  receiver,  and  di- 
recting him  to  pay  a  large  sum  of  money 
upon  certain  claims,  the  ordinary  bond  on 
appeal  merely  stays  the  order  appealed 
from,  but  can  have  no  effect  to  stay  pro- 
ceedings on  the  prior  order.  Credits  Com- 
mutation Co.  V.  Superior  Court,  140  Cal. 
82;  73  Pac.  1009.  Upon  an  appeal  from  an 
order  appointing  an  administrator,  an  un- 
dertaking under  §  941,  ante,  stays  all  pro- 
ceedings upon  the  order.  Estate  of  W^oods^ 
94  Cal.  566;  29  Pac.  1108.  An  order  direct- 
ing an  administrator  to  pay  money,  as  a 
family  allowance,  to  the  heir  of  the  estate, 
is  stayed  by  an  undertaking  given  as  re- 
quired by  §  941,  ante.  Pennie  v.  Superior 
Court,  89  Cal.  31;  26  Pac.  617.  A  proceed- 
ing on  a  decree  of  distribution  is  stayed 
by  an  undertaking  in  accordance  with 
§  941,  ante,  on  appeal  by  a  legatee  from 
such  decree.  Estate  of  Schedel,  69  Cal.  241; 
10  Pac.  334.  An  order  granting  an  adjudi- 
cation of  insolvency,  not  being  a  ease  in 
which  a  separate  stay  bond  is  required  on 
appeal,  is  stayed  by  the  ordinary  appeal 
bond  for  costs.  Dennery  v.  Superior  Court, 
84  Cal.  7;  24  Pac.  147.  An  appeal  from  a 
judgment  rendered  in  favor  of  the  contest- 
ant in  an  election  contest  has  the  effect  tO' 


1073 


ORDERS  NOT  STAYED   BY   AI'PEAL — PAPERS  ON. 


§930 


suspend  the  judgment;  hence,  where  the 
coiitestee  liad  entered  oflii-e  before  the  ren- 
dition of  tiie  jiidi^nuMit.  he  is  entitled  to 
retain  it  ]ienilin;,r  apiieal.  Day  v.  (iuiniiii;,', 
125  Cal.  ;j1'7;  5S  Pac  172.  An  apiieai  from 
a  .ju(|i,nnent  reniovin-i  a  board  of  suiht- 
visors,  ipso  facto,  ojterates  as  a  supersedeas, 
and  suspends  the  eifet-t  of  the  .iud>.^ment,  so 
as  to  restore  the  board  to  its  right  to  con- 
tinue in  oflice  until  the  final  determination 
of  the  ajjpeal.  Morton  v.  Broderiek,  118 
Cal.  474;  50  Pac.  G44.  A  .iudgment  grant- 
ing or  denying  an  application  for  a  writ 
of  mandamus  is  stayed  by  the  undertaking 
prescribed  by  §  941,  ante.  Palaehe  v.  Hunt, 
64  Cal.  47;!;  2  Pac.  24.1. 

Sale  of  perishable  property  not  stayed. 
Upon  apj)oal  from  a  judgment  foreclosing 
liens  on  personal  property,  described  as 
"mortgages  and  liens,"  the  court  having 
also  found  that  the  property  ordered  to  be 
sold  was  "perishable  jiroperty,"  the  ordi- 
nary three-hundred-dollar  bond  will  not 
stay  the  judgment  nor  warrant  a  writ  of 
supersedeas.  Tolle  v.  Heydenfeldt,  138  Cal. 
56;  70  Pac.  1013.  The  supreme  court  has 
power  to  order  a  stay  of  proceedings,  pend- 
ing an  appeal  from  an  order  directing  a 
sale  of  certain  property  as  perishable  prop- 
erty. Rogers  v.  Superior  Court,  158  Cal. 
467;  111  Pac.  357.  An  order  made  after 
final  judgment,  for  the  sale  of  perislialile 
property,  is  apjiealable,  notwithstanding  a 
stay  of  proceedings  by  virtue  of  an  appeal. 
Rogers  v.  Superior  Court,  158  Cal.  467;  111 
Pac.  357. 

Usurpation,  etc.,  of  public  ofTice.  An  ap- 
peal from  a  judgment  declaring  that  the 
defendant  had  usurped  and  intruded  into 
and  was  unlawfully  exercising  otfiee,  and 
that  the  relator  was  entitled  to  the  office, 
has  not  the  effect  of  staying  execution  of 
the  judgment.  Ex  parte  Henshaw,  73  Cal. 
486;  15  Pac.  110.  An  appeal  by  an  inter- 
vener in  an  action,  where  it  is  determined 
that  the  defendant  unlawfully  held  office 
and  that  the  relator  was  entitled  thereto, 
does  not  operate  to  stay  the  judgment. 
People  V.  Campbell,  138  Cal.  11;  70  Pac. 
918.  The  provision  in  this  section,  that 
the  appeal  does  not  stay  proceedings  upon 
the  judgment,  where  it  adjudges  the  ile- 
fendant  guilty  of  usurping  or  intruding 
into  or  unlp.wfully  holding  public  oilico, 
civil  or  military,  within  the  state,  author- 
izes the  construction,  that  proceedings  upon 

§  950.  What  papers  to  be  used  on  appeal  from  the  judginent.  On  appeal 
from  a  final  judgment,  the  appelhuit  must  iurnish  the  court  with  a  copy 
of  the  notice  of  appeal,  of  the  judgment  roll,  and  of  any  bill  of  exceptions 
upon  which  the  appellant  relies. 

Judgment  roll.    Ante,  §  670. 
Judgment.     What      orders      reviewable.     Post, 
§  956. 

Transcript. 

1.  Authentication  of.    Post.  §  053. 

2.  Contents.    Post,  §§  951,  952. 

1   Fair. — 68 


the  judgment  are  stayed  when  it  afTirins 
the  right  of  tiie  plaintiff  to  any  oflice  which 
is  not  public.  Foster  v.  .Sui>erior  Court,  ll.j 
Cal.  27!!;  47  Pac.  5H. 

Order  refusing  to  change  place  of  trial. 
An  ajipcal  from  an  order  refusing  to  change 
the  place  of  trial  does  not  operate  to  slay 
proceedings  in  the  lower  court,  lioweli  v. 
Thompson,  7(1  ('al.  635;  11  Pac.  7S!I;  and  see 
People  v.  Whitney,  47  Cal.  5S4.  .Although 
an  appeal  from  an  order  denying  a  motion 
to  (hange  the  place  of  trial  entitles  the 
aiii)ellant  to  a  continuance  of  the  case  in 
the  court  below  while  such  ai)i)eal  is  pend- 
ing, yet  it  <ioes  not  deprive  the  court  of 
jurisiliction  to  proceed  ami  try  the  action, 
in  su(di  sense  that  prohibition  would  lie. 
People  V.  Whitney,  47  Cal.  5S4.  Where  an 
order  refusing  to  change  the  place  of  trial 
is  reversed  on  appeal,  a  juilgment  remlered 
against  the  appellant  before  the  reversal 
of  the  order  will  be  reversed  on  an  apjieal 
therefrom,  without  inquiring  as  to  the  com- 
mission of  errors  on  the  trial,  although  the 
appellant  may  have  ajipeared  at  the  trial 
and  contested  the  right  of  the  respond- 
ent to  recover.  Howell  v.  Thompson,  70 
Cal.  635;  11  Pac.  789;  and  see  People  v. 
Whitney,  47  Cal.  584. 

Injunction.  An  appeal  from  a  judgment 
granting  a  jierpetual  injunction  <loes  not 
susjiend  the  injunction  during  the  pendency 
of  the  appeal,  nor  does  it  deprive  the  court 
in  which  the  judgment  was  rendereil  of  the 
jiower  to  punish  a  disobedience  of  the  in- 
iunction  as  a  contempt.  Heinlen  v.  Cross, 
63  (al.  44. 

Writ  of  assistance.  A  writ  of  assistance 
to  recover  the  possession  of  land.  soM 
under  mortgage  foreclosure  sale,  will  not 
be  stayed,  where  the  only  undertaking  on 
appeal  is  that  given  under  §  941,  ante. 
California  etc.  Savings  Bank  v.  Graves,  129 
Cal.  G49;  02  Pac.  259. 

Judgment  not  evidence,  pending  appeal. 
This  section  includes  a  judgment  whiidi  is 
self -executing;  and  an  appeal  therefrom 
does  not  impair  this  efl'ect,  except  that 
while  the  appeal  is  pending  it  is  not  avail- 
able as  evidence  of  the  facts  adjudged. 
Foster  v.  Superior  Court,  115  Cal.  279;  47 
Pac.  58. 

Implied  power  of  courts  to  issue  supersedeas. 

See  note  6"  .\ni.   St.   I^•I>.   714. 


CODE     COMMISSIONERS' 

Thompson,  19  Cal.  118. 


NOTE.      Ford     T. 


Legislation  8  950.     1.  Enacted  March  11.  1872| 

ba.seJ  on  Priiotice  .\rt,  §  :!4(i,  ns  ann'nded  by 
Stall.  lSG3-(i4.  p.  247.  which  read;  "On  an  ap- 
peal from  a  final  judgment,  the  appellant  .shall 
furnish  the  court  with  a  transcript  «f  the  notice 
of  appeal,   the   pleadings,   or  amended  pleading!, 


950 


APPEALS  IN  GENERAL. 


1074 


as  the  case  may  "be,  which  form  the  issues  tried 
in  the  case,  the  judgment,  and  such  other  parts 
of  the  judgment  roll,  and  no  more,  as  are  neces- 
sary to  present  or  explain  the  points  relied  on, 
and"  the  statement,  if  there  be  one,  certitied  by 
the  attorneys  of  the  parties  to  the  appeal,  or  by 
the  clerk,  to  be  correct.  On  appeal  from  a  judg- 
ment rendered  on  an  appeal,  or  from  an  order, 
the  appellant  shall  furnish  the  court  with  a  copy 
of  the  notice  of  appeal,  the  judgment  or  order 
appealed  from,  and  a  copy  of  the  papers  used  on 
the  hearing  in  the  court  below,  such  copies  to  be 
certified  in  like  manner  to  be  correct.  If  any 
written  opinion  be  placed  on  file  in  rendering  the 
judgment  or  making  the  order  in  the  court  below, 
a  copy  shall  be  furnished.  If  the  appellant  fail 
to  furnish  the  requisite  papers,  the  appeal  may 
be  dismissed."  When  enacted  in  1872,  §  950 
riNid:  "O.i  an  appeal  from  a  final  judgment,  the 
appellant  must  furnish  the  court  with  a  copy  of 
the  notice  of  appeal,  the  pleadings,  or  amended 
pleadings,  which  form  the  issues  tried  in  the  case, 
the  judgment,  bills  of  exception,  and  such  other 
parts  of  the  judgment  roll,  and  no  more,  as  are 
necessary  to  present  or  explain  the  points  relied 
on." 

2.  Amended  by  Code  Amdts.  1873-74, 
p.  338,  to  read:  "On  an  appeal  from  a  final 
judgment,  the  appellant  must  furnish  the  court 
with  a  copy  of  the  notice  of  appeal,  of  the  judg- 
ment roll,  and  of  any  bill  of  exceptions  or  state- 
ment in  the  case  upon  which  the  appellant  relies. 
Any  statement  used  on  motion  for  a  new  trial 
or  'settled  after  decisions  of  such  motion  when 
the  motion  is  made  upon  the  minutes  of  the 
court,  as  provided  in  section  six  hundred  and 
sixty-one,  or  any  bill  of  exceptions  settled,  as 
provided  In  sections  six  hundred  and  forty-nine 
or  six  hundred  and  fifty,  or  used  on  motion  for 
a  new  trial,  may  be  used  on  appeal  from  a  judg- 
ment equally  as  upon  appeal  from  the  order 
granting  or  refusing  the  new  trial." 

3.  Amendment  by  Stats.  1901,  p.  173;  un- 
constitutional.     See  note  ante,  §  5. 

4.  Amended  by  Stats.  1915,  p.  205,  (1)  in 
first  sentence,  striking  out  (a)  "an"  in  the 
phrase  "On  an  appeal,"  and  (b)  "or  statement 
in  the  case,"  after  "bill  of  exceptions";  (2) 
striking   out   the   second   sentence. 

Construction  of  section.  A  litigant's 
riglit  to  appeal  from  a  judgment,  and  bis 
right  to  appeal  from  an  order  refusing  a 
new  trial,  are  distinct  and  separate  rights. 
Vinson  v.  Los  Angeles  Pacific  R.  R.  Co.,  141 
Cal.  151;  74  Pac.  757  (7  Cal.  Unrep.  142,  72 
Pac.  840,  department  decision).  The  provis- 
ions of  the  first  sentence  of  this  section  are 
not  affected  or  impaired  by  the  provisions 
of  the  second  sentence.  "Wall  v.  Mines,  128 
Cal.  136;  60  Pac.  682.  This  section  is  not 
to  be  construed  as  authorizing  the  state- 
ment to  be  considered  upon  matters  which 
cannot  be  determined  upon  an  appeal  from 
the  judgment:  it  will  be  limited  to  such 
matters  as  are  authorized  to  be  heard  upon 
such  appeal.  Wall  v.  Mines,  128  Cal.  136; 
60  Pac.  682.  The  trial  court  is  not  author- 
ized to  say  what  papers  shall  be  used  on 
appeal:  that  is  a  matter  regulated  by  the 
code.    People  v.  Center,  54  Cal.  236. 

Contents  of  record.  A  bill  of  exceptions, 
based  upon  errors  of  law  occurring  at  the 
trial,  settled  within  thirty  days  after  judg- 
ment is  rendered,  becomes  a  part  of  the 
record  on  appeal  from  the  judgment.  Cald- 
well V.  Parks,  47  Cal.  640.  A  statement 
becomes  a  matter  of  record  without  the 
certificate  of  the  judge.    Reynolds  v.  Harris, 


8  Cal.  617.  If  the  appellant  desires  to 
show  error  in  the  instructions  to  the  jury, 
he  must  present  the  evidence  in  his  record 
on  appeal.  People  v.  McCauley,  1  Cal.  379; 
People  V.  Baker,  1  Cal.  403;  White  v.  Aber- 
nathy,  3  Cal.  426;  People  v.  Roberts,  6  Cal. 
214;  People  v.  Honshell,  10  Cal.  83;  People 
V.  Byrnes,  30  Cal.  206;  People  v.  Best,  39 
Cal.  690.  Where  the  record  contains  no 
copy  of  the  pleadings,  the  appeal  will  be 
dismissed.  Hart  v.  Plum,  14  Cal.  149.  The 
opinion  of  the  trial  judge  is  no  part  of  the 
record  on  appeal  (Wilson  v.  Wilson,  64 
Cal.  92;  27  Pac.  861;  Wilson  v.  Devine,  67 
Cal.  341;  7  Pac.  776);  nor  are  the  state- 
ments of  counsel  in  their  brief  (Hood  v. 
Hamilton,  33  Cal.  698;  Porter  v.  Peckham, 
44  Cal.  204) ;  nor  is  a  supplemental  affi- 
davit, filed  long  after  the  perfecting  of  the 
appeal  (R.  H.  Herron  Co.  v.  Westside  EleC' 
trie  Co.,  18  Cal.  App.  778;  124  Pac.  455); 
nor  is  a  mere  loose  sheet  of  unidentified 
paper  (Youmans  v.  H.  S.  Clarke  Co.,  19 
Cal.  App.  784;  127  Pac.  799);  nor  is  a 
statement,  not  prepared  and  filed  within 
the  time  prescribed  by  the  statute.  Ryan 
V.  Dougherty,  30  Cal.  218.  Where  there  is 
no  bill  of  exceptions  or  statement  of  the 
case,  or  other  like  record,  the  appeal  being 
upon  the  judgment  roll  alone,  the  orders 
of  the  court,  allowing  or  refusing  amend- 
ments to  the  answer,  do  not  constitute  any 
part  of  the  record  which  an  appellate  court 
may  review.  Segerstrom  v.  Scott,  16  Cal. 
App.  256;  116  Pac.  690.  Where  the  record 
discloses  no  reason  or  sufficient  showing 
why  a  motion  for  a  change  of  venue  should 
not  be  granted,  an  order  refusing  to  grant 
such  a  motion  cannot  be  justified  upon  the 
ground  that  the  refusing  or  granting  of 
such  orders  is  in  the  discretion  of  the  court. 
Carr  v.  Stern,  17  Cal.  App.  397;  120  Pac.  35. 

Opinion  of  court  is  no  part  of  record.  See 
note  post,  §  952. 

Amendment  and  completion  of  record. 
Where  the  record  is  incomplete,  the  appel- 
lant should  move  the  court  below,  at  the 
eaTliest  possible  moment,  to  supply  the  lost 
papers,  or  by  other  means  within  its  con- 
trol, to  complete  the  record.  Buekman  v. 
Whitney,  24  Cal.  267;  Bonds  v.  Hickman, 
29  Cal.  461.  A  stipulation  as  to  the  cor- 
rectness of  the  transcript  does  not  estop 
the  respondent  from  pleading  a  diminution 
of  the  record  and  having  it  completed. 
California  Wine  Ass'n  v.  Commercial  Union 
Fire  Ins.  Co.,  159  Cal.  49;  112  Pac.  858. 
The  lower  court  may  amend  the  record  and 
make  it  speak  the  truth.  Morrison  v.  Dap- 
man,  3  Cal.  255;  Anderson  v.  Parker,  6 
Cal.  197;  Branger  v.  Chevalier,  9  Cal.  172; 
Browner  v!  Davis,  15  Cal.  9;  Swain  v.  Na- 
glee,  19  Cal.  127;  Hagler  v.  Henckell,  27 
Cal.  491;  Estate  of  Sehroeder,  46  Cal.  304. 
For  the  purpose  of  amendment,  the  record 
remains  in  the  court  below,  although  the 
appeal  has  been  taken;  and  the  lower  court 
will  grant  amendments  or  supply  lost  rec- 


10" 


INSUFPICIENCY  OP  RECOKD — EFFECT  OF — JUDGMENT  ROLL. 


§950 


ords  in  all  cases  where  such  relief  would 
have  been  granted  in  case  no  appeal  liad 
been  taken.  Bucknian  v.  Whitney',  -i  Cal. 
267.  A  motion  to  Htrike  from  the  tran- 
script and  to  disreijard  a  certain  order  and 
finding,  on  tlie  ground  that  it  is  not  a  part 
of  the  record,  will  not  be  considered  until 
the  final  hearing  of  the  case.  Estate  of  Wil- 
liams, 4  Cal.  Unrep.  oil;  36  Pac.  6.  The 
appellate  court  may  order  a  document  to 
be  inserted  in  or  stricken  from  the  tran- 
script, in  order  to  ]>erfect  it;  but  it  cannot 
vary  or  amend  a  document  found  in  the 
record.  Bonds  v.  Hickman,  29  Cal.  4()1; 
Satterlee  v.  Bliss,  36  Cal.  489;  Thompson 
V.  Patterson,  54  Cal.  542;  Boyd  v.  Burrel, 
60  Cal.  280;  California  Wine  Ass'n  v.  Com- 
mercial Union  Fire  Ins.  Co.,  159  Cal.  49; 
112  Pac.  858.  The  a))pellate  court  has  no 
control  over  the  record  of  the  inferior  court 
from  which  the  appeal  lies,  and  cannot 
make  an  order  supplying  lost  records.  Buck- 
man  V.  Whitney,  24  Cal.  267;  Satterlee  v. 
Bliss,  36  Cal.  489;  Thompson  v.  Patterson, 

54  Cal.  542;  Boyd  v.  Burrel,  60  Cal.  280. 
A  bill  of  exceptions  cannot  be  amended  by 
the  appellate  court,  wliich  must  review  the 
order  upon  the  same  record  upon  which  it 
was  made.  Baker  v.  Borello,  131  Cal.  615; 
63  Pac.  914.  The  settled  statement  on 
motion  for  a  new  trial  cannot  be  amended 
by  the  appellate  court:  the  action  of  the 
trial  court  must  be  reviewed  upon  a  tran- 
script of  the  records  of  that  court.  Clare  v. 
Sacramento  Electric  etc.  Co.,  122  Cal.  504; 

55  Pac.  326. 

Effect  of  insufficiency  of  record.  Where 
the  transcript  does  not  contain  a  copy  of 
the  judgment  roll,  or  of  a  bill  of  excep- 
tions, or  of  a  statement  in  the  case,  the 
appeal  from  the  judgment  cannot  be  con- 
sidered. Welch  V.  Allen,  54  Cal.  211.  Where 
the  record  fails  to  show  that  the  complaint, 
answer,  findings,  and  judgment,  were  ever 
filed  in  the  court  below,  or  that  the  judg- 
ment was  ever  entered,  and  fails  to  contain 
a  certificate  to  the  papers  which  would  con- 
stitute the  judgment  roll,  and  further  fails 
to  show  that  the  statement  on  motion  for 
new  trial  was  filed,  or  that  the  order  deny- 
ing a  new  trial  was  ever  entered,  the  rec- 
ord is  insufficient,  and  the  judgment  must 
be  affirmed.  W^lls  v.  Kreyenhagen,  117 
Cal.  329;  49  Pac.  128. 

New  record.  Parties  are  powerless,  with- 
out the  consent  of  the  court,  to  make  up 
a  new  record  based  upon  former  rulings. 
Grunsky  v.  Field,  1  Cal.  App.  623;  82  Pac. 
979. 

Notice  of  appeal.  The  notice  of  appeal 
should  be  inclutled  in  the  transcript  on  ap- 
peal. Woodside  v.  Hewel,  107  Cal.  141;  40 
Pac.  103.  An  appeal  cannot  be  taken  from 
parts  of  two  judgments,  and  from  a  special 
order  made  after  judgment,  by  one  notice 
of  appeal,  and  on  one  undertaking  on  ap- 
peal.  Peoyile  v.  Center,  61  Cal.  191. 

Judgment  roll.  On  aj)iieal  from  a  judg- 
ment, without  a  statement  or  bill  of  excep- 


tions, nothing  is  part  of  the  record,  except 
the  judgment  roll,  and  no  (piestion  arising 
outside  of  the  roll  can  ho  couBidered. 
Wetlierbee  v.  Carroll,  33  Cal.  549.  An  ap- 
peal by  an  administrator  with  the  will  an- 
nexcil,  from  portions  of  a  det-rco  of  |>artial 
distribution,  is,  in  elTect,  an  appeal  from  a 
judgment,  and  may  be  taken  on  the  judg- 
ment roll  alone,  consisting  of  the  petitions 
of  the  parties,  the  ojipositions  thereto,  the 
findings  thereon,  and  the  decree  based  upon 
those  findings;  in  such  a  case,  no  bill  of 
exceptions  is  necessary:  the  clerk's  certifi- 
cate to  the  corrci'tness  of  the  transcript  is 
the  only  certification  required.  Plstate  of 
Broome,  162  Cal.  258;  122  F'ac.  470.  The 
judgment  roll,  on  appeal  from  an  order 
denying  a  motion  for  a  new  trial  of  the 
contest  of  a  will  after  jirobate,  should  in- 
clude at  least  the  petition  for  revocation 
of  the  probate,  the  answer  thereto,  the  ve.'- 
dict  of  the  jury,  and  the  judgment.  Estate 
of  Kilborn,  162  Cal.  4;  120  Pac.  762.  The 
bill  of  exceptions,  when  settled,  becomes 
a  part  of  the  judgment  roll.  Lunnun  v. 
Morris,  7  Cal.  App.  710;  95  Pac.  907.  .V 
stipulation  is  not  an  exception,  nor  a  state- 
ment on  appeal,  nor  a  part  of  the  judgment 
roll.  People  v.  Ilawes,  41  Cal.  632.  An 
order  granting  leave  to  a  party  to  amend 
his  answer  is  no  part  of  the  judgment  roll, 
and  is  not  required  to  be  entered  thereon. 
Segerstrom  v.  Scott,  16  Cal.  App.  256;  116 
Pac.  690.  Where  papers,  not  included  in 
the  judgment  roll,  are  required  upon  ap- 
peal, no  duty  is  imposed  upon  the  clerk  to 
certify  them.  Rose  v.  Lelande,  17  Cal. 
App.  308;  119  Pac.  532.  An  appeal  from 
a  judgment,  where  no  bill  of  exceptions  is 
filed,  has  the  effect  to  bring  up  only  the 
judgment  roll,  or  such  parts  of  it  as  are 
necessary  to  explain  the  points  relied  on; 
hence,  as  a  petition  for  certiorari  is  not  a 
part  of  the  judgment  roll,  it  is  not  brought 
up  on  such  appeal.  Reynolds  v.  County 
Court,  47  Cal.  6(J4. 

Necessity  for  bill  of  exceptions.  There 
is  no  provision  of  law,  which  dispenses  with 
a  bill  of  exceptions,  where  the  sufficiency 
of  the  evidence  to  sustain  the  decision  is 
sought  to  be  questioned  on  appeal.  Cali- 
fornia Portland  Cement  Co.  v.  Wentworth 
Hotel  Co.,  16  Cal.  App.  692;  118  Pac.  103. 
This  section  does  not  forbid  the  hearing  of 
an  aiii>eal  from  a  judgment,  unless  there  is 
a  bill  of  exceptions,  but  only  provides  that 
the  court  shall  be  furnished  with  a  copy 
of  an}'  bill  of  exceptions  upon  which  the 
appellant  relies.  Thompson  v.  Hancock,  51 
Cal.  110.  The  absence  of  a  bill  of  excep- 
tions is  not  a  ground  for  the  dismissal  of 
the  appeal,  but  rather  for  an  affirmance 
of  the  judgment,  if  there  is  nothing  in  the 
record  upon  which  the  action  of  the  su- 
jierior  court  can  be  properly  reviewed. 
Howell  V.  Howell,  101  Cal.  115;  35  Pac. 
443.  The  question  whether  the  trial  court 
erred  in  striking  out  portions  of  the  an- 
swer, cannot  be  presented  upon  an  appeal 


950 


APPEALS    IN    GENERAL. 


1076 


without  a  bill  of  exceptions.  Spence  v. 
Scott,  97  Cal.  181;  31  Pac.  52.  Where  the 
order  appealed  from  is,  in  effect,  a  judg- 
ment, and  can  be  reviewed  on  the  judg- 
ment roll,  a  motion  to  dismiss  the  appeal 
for  want  of  a  bill  of  exceptions  will  be 
denied.  Howell  v.  Howell,  101  Cal.  115;  35 
Pac.  443. 

Sufficiency  and  contents  of  bill  of  excep- 
tions. On  appeal  from  a  judgment,  any 
bill  of  exceptions  settled  may  be  used;  and 
the  fact  that  a  bill  of  exceptions  was  en- 
titled "A  bill  of  exceptions  on  motion  for 
a  new  trial,"  is  immaterial.  Bedan  v.  Tur- 
ner, 99  Cal.  649;  34  Pac.  442.  A  bill  of 
exceptions,  to  constitute  a  part  of  the  tran- 
script on  appeal,  must  be  settled  as  pro- 
vided in  §  649  or  §  650,  ante.  Witter  v. 
Andrews,  122  Cal.  1;  54  Pac.  276.  It  is 
not  intimated  that  §  650,  ante,  is  other  than 
directory,  or  that  the  failure  to  serve  the 
engrossed  bill  therein  provided  for,  when 
certified,  will  preclude  its  use  on  appeal. 
Eegents  of  University  v.  Turner,  159  Cal. 
541;  Ann.  Cas.  1912C,  1162;  114  Pac.  842. 
On  appeal  from  a  judgment,  the  appellant 
is  required  to  bring  up  only  the  judgment 
roll,  and  any  bill  of  exceptions  or  state- 
ment in  the  case  upon  which  he  relies; 
hence,  errors  committed  against  the  re- 
spondent need  not  be  shown  by  such  bill  of 
exceptions.  Klauber  v.  San  Diego  Street 
Car  Co.,  98  Cal.  105;  32  Pac.  876.  An 
erroneous  ruling  of  the  trial  court,  in  ren- 
dering judgment  on  the  pleadings  without 
a  trial  of  the  action,  may  be  reviewed  on 
an  appeal  from  the  judgment,  without 
being  incorporated  in  a  bill  of  exceptions, 
when  the  judgment  recites  that  it  was  ren- 
dered on  the  pleadings.  Weeks  v.  Gari- 
baldi, 73  Cal.  599;  15  Pac.  302.  When  the 
appellant  presents  his  record  in  the  form 
of  a  bill  of  exceptions,  which  presents  the 
objection  and  rulings  in  such  manner  that 
no  more  particular  presentation  is  needed 
to  call  the  court's  attention  to  the  errors 
relied  upon,  the  particular  errors  need  not 
be  specified  in  the  bill.  First  National 
Bank  v.  Trognitz,  14  Cal.  App.  176;  111 
Pac.  402.  Where  the  bill  of  exceptions 
shows  that  there  was  no  error  in  refusing 
a  continuance  to  the  defendant,  resort  can- 
not be  had,  upon  appeal,  to  the  defendant's 
affidavit  to  show  the  contrary.  Frost  v. 
Witter,  132  Cal.  421;  85  Am.  St.  Rep.  53; 
64  Pac.  705.  Affidavits,  used  on  motion 
after  judgment,  cannot  be  considered  on 
appeal  from  final  judgment,  where  they  are 
not  embodied  in  the  bill  of  exceptions,  or 
the  statement  is  not  settled  in  due  form. 
Welch  V.  Allen,  54  Cal.  211. 

May  be  used  on  all  appeals.  A  bill  of 
exceptions  is  equally  ajiplicatjle  to  any  and 
all  kinds  of  appeals  provided  for  bv  the 
code.  Brandt  v.  Clark,  81  Cal.  634;  22  Pac. 
863. 

Similarity  between  bill  of  exceptions  and 
statement.     The  legal  effect  of  a  document 


is  to  be  determined  by  the  matter  which  it 
contains;  when  settled,  there  is  no  sub- 
stantial difference  between  a  bill  of  excep- 
tions and  a  statement  of  the  case,  except 
that  the  latter,  in  addition  to  setting  forth 
the  exceptions  taken  at  the  trial,  must  also 
designate  the  particular  errors  attacked; 
the  particulars  in  which  the  evidence  is 
claimed  to  be  insufficient  must  be  specified 
in  either  document.  Pease  v.  Fink,  3  Cal. 
App.  371;  85  Pac.  657.  Where  the  appel- 
lant called  a  document  a  "statement," 
rather  than  a  "bill  of  exceptions,"  he  will 
not  be  deprived  of  his  appeal,  where  he 
was  not  entitled  to  a  statement  of  the  case, 
but  to  a  bill  of  exceptions.  Witter  v. 
Andrews,  122  Cal.  1;  54  Pac.  276.  Where 
an  appellant  set  forth  in  the  transcript  a 
document  entitled  an  "Engrossed  statement 
of  the  case,"  in  which  was  set  forth  all  the 
matters  essential  to  a  bill  of  exceptions,  it 
is  suf3Scient  as  such.  Pease  v.  Fink,  3  Cal. 
App.  371;  85  Pac.  657. 

Right  to  have  statement  settled.  A  party 
appealing  from  a  judgment  has  an  inde- 
pendent right  to  have  settled  a  statement 
of  the  case  to  be  used  upon  such  appeal. 
Vinson  v.  Los  Angeles  Pacific  E.  E.  Co., 
141  Cal.  151;  74  Pac.  757  (7  Cal.  Unrep. 
142,  72  Pac.  840,  department  decision). 

Waiver  of  statement.  A  statement,  if 
not  filed  in  time,  is  deemed  to  have  been 
waived.  Maeomber  v.  Chamberlain,  8  Cal. 
322;  but  see  Bryan  v.  Maume,  28  Cal.  238; 
Kayanagh  v.  Maus,  28  Cal.  262. 

Kinds  of  statements.  The  only  state- 
ment that  can  be  used  on  appeal  is  the  one 
used  on  the  hearing  of  a  motion  for  a  new 
trial,  or  the  subsequent  statement  desig- 
nated in  §  661,  ante.  Wall  v.  Mines,  128 
Cal.  136;  60  Pac.  682.  Compare  §§  659,  661, 
ante,  and  §§  951,  952,  post. 

Statement  on  motion  for  new  trial.  The 
principles  ajiplicable  to  statements  on  ap- 
peal apply  to  statements  for  new  trials. 
Dickinson  v.  Van  Horn,  9  Cal.  207.  A 
statement  of  the  case,  used  on  the  hearing 
of  the  motion  for  a  new  trial,  is  a  part  of 
the  record,  on  which  an  appeal  from  the 
judgment  may  be  heard.  Sharon  v.  Sharon, 
68  Cal.  326;  9  Pac.  187;  Scott  v.  Wood,  81 
Cal.  398;  22  Pac.  871;  Brind  v.  Gregory, 
122  Cal.  480;  55  Pac.  250;  and  see  People 
V.  Crane,  60  Cal.  279;  Somers  v.  Somers,  83 
Cal.  621;  24  Pac.  162.  The  requirement  of 
this  section,  that  the  appellant  must  fur- 
nish a  copy  of  any  statement  in  the  case, 
upon  which  he  relies,  must  be  held  to  in- 
clude the  statement  prepared  for  use  on 
the  motion  for  a  new  trial,  whether  or  not 
such  statement  had  been  actually  used:  the 
latter  ]iart  of  this  section  does  not  affect 
this  right.  Wall  v.  Mines,  128  Cal.  136;  60 
Pac.  682;  and  see  Brandt  v.  Clark,  81  Cal. 
634;  22  Pac.  863;  Jue  Fook  Sam  v.  Lord,  83 
Cal.  159;  23  Pac.  225;  Forni  v.  Yoell,  99 
Cal.  173;  38  Pac.  887;  Brind  v.  Gregory,  120 
Cal.  640;  53  Pac.  25;   Witter  v.  Andrews, 


1077 


STATEMENT  AND  EXAMINATION  ON  APPEAL — TRANSCRIPT. 


§1350 


122  Cal.  1;  54  Pae.  276;  Kellv  v.  Ning 
Yung  Ben  Ass'n,  138  Cal.  602;  72  Pac.  H8. 
On  appoal  from  a  judgment,  taken  more 
than  sixty  days  after  its  entry,  the  use  of 
a  statement  settled  to  be  used  upon  a 
motion  for  a  new  trial  is  not  involved  in 
a  motion  to  dismiss  the  aj)peal.  Wall  v. 
Minos,  128  Cal.  186;  60  Pae.  682.  An  order 
settling  the  account  of  an  executor  is  not 
a  final  judgment  upon  which  a  statement 
on  motion  for  a  new  trial  can  he  used. 
Estate  of  Franklin,  133  Cal.  ;"584 ;  6.j  Pac. 
1081.  A  statement  on  motion  for  a  new 
trial,  settled  and  filed  subsequently  to  the 
date  of  the  order  denying  a  new  trial,  may 
be  considered  on  appeal  from  the  judgment, 
even  though  it  cannot  be  resorted  to  for 
the  jiurpose  of  reviewing  such  order.  Blood 
V.  La  Serena  Land  etc.  Co.,  150  Cal.  764;  89 
Pac.  1090. 

Statement  on  appeal.  The  general  pur- 
pose of  statements  on  ap[)eal,  both  from 
judgments  and  orders,  is  to  provide  for 
errors  in  other  jiortions  of  the  field  of  liti- 
gation than  those  covered  by  statements 
on  motions  for  new  trial.  Quivey  v.  Gam- 
bert,  32  Cal,,^  304.  A  statement  on  appeal 
must  specify  the  grounds  or  errors  on 
which  the  appellant  relies  (Burnett  v. 
Pacheco,  27  Cal.  408) ;  and  there  is  no  dis- 
tinction, as  to  the  manner  in  which  a  state- 
ment is  to  be  prepared,  between  an  action 
at  law  and  a  suit  in  equity.  Barrett  v. 
Tewksbury,  15  Cal.  354;  Hutton  v.  Reed,  25 
Cal.  478;  People  v.  Banvard,  27  Cal.  470; 
Haggin  v.  Clark,  28  Cal.  162;  Cross  v.  Zane, 
45  Cal.  89;  Ferrer  v.  Home  Mutual  Ins. 
Co.,  47  Cal.  416.  Questions  of  law  and 
fact  raised  must  be  distinctly  set.  forth  in 
a  statement  on  appeal,  accompanied  with 
only  so  much  of  the  evidence  as  may  be 
necessary  to  show  their  pertinency  and 
materiality.  Barrett  v.  Tewksbury,  15  ("al. 
354;  Hutton  v.  Kee<l,  25  Cal.  478."  A  state- 
ment on  appeal  must  be  authenticated  and 
served.  Kavanagh  v.  Maus,  28  Cal.  261. 
The  time  for  making  and  filing  a  statement 
on  appeal  may  be  extended.  Bryan  v. 
Maume,  28  Cal.  238. 

Contents  of  statements  on  appeal  from 
probate  court.     See  note  ]iost,  §  963. 

Nature  of  case  on  appeal.  The  case 
made  by  the  record  on  appeal  is  regarded 
as  a  new  and  distinct  action.  Davidson  v. 
Dallas,  15  Cal.  75. 

Examination  on  appeal  confined  to  what. 
On  appeal  from  a  judgment,  the  examina- 
tion is  confined  to  the  judgment  roll,  and 
to  any  bill  of  exceptions,  statement  on 
motion  for  new  trial,  and  statement  of  the 
case,  on  which  appellant  relies;  the  ques- 
tion to  be  considered  must  arise  on  these 
papers,  and  if  they  do  not  thus  arise,  no 
duty  devolves  on  the  appellate  court  to  de- 
cide them,  tumeric  v.  Alvarado,  64  Cal. 
529;  2  Pae.  418.  The  only  papers  whieh 
can  be  considered  on  appeal  from  a  final 
judgment  are  the  notice  of  appeal  and  the 


judgment  roll,  where  there  is  no  hill  of  ex- 
cej>tions:  a  stipulation  for  juilgment  can- 
not be  considered.  .Spinetti  v.  lirignanlello, 
53  Cal.  281.  The  ajipellate  court  will  not 
examine  the  evitlence  for  the  purjiose  of 
finding  a  fact.  Ellis  v.  Jeans,  26  Cal.  272. 
A  bill  of  exceptions,  or  statement  of  the 
case,  may  be  considered  on  an  ai)peal  from 
the  judgment.  Mendocino  Countv  v.  Peters, 
2  Cal.  Ai>!).  24;  82  Pac.  1122;  Wall  v.  Mines, 
128  Cal.  136;  60  Pac.  682.  The  appeal  must 
be  disposed  of  on  the  record  as  it  comes 
up  to  the  court:  the  appellate  court  can- 
not interpolate  other  matters.  Daviilson  v. 
Dallas,  15  Cal.  75;  Rogers  v.  Tennant,  45 
Cal.  184;  Parrott  v.  Floyd,  54  Cal.  534. 
The  appellate  court  will  not  be  controlled 
l)y  the  views  or  the  reasoning  of  counsel, 
but  will  decide  the  case  upon  the  record. 
Hubbard  v.  Sullivan,  18  Cal.  508;  San 
Francisco  v.  Beideman,  17  Cal.  443.  The 
a|ii)el]ant  is  required  to  confine  himself  to 
the  objections  taken  at  the  trial  and  set 
out  in  the  record  (Clarke  v.  Hubcr,  25  Cal. 
593;  Davey  v.  Southern  Pacific  Co.,  116 
Cal.  325;  48  Pac.  117;  Frank  v.  Pennie, 
117  Cal.  254;  49  Pac.  208;  Dikeman  v. 
iVorrie,  36  Cal.  94;  McKay  v.  Riley,  65 
Cal.  623;  4  Pac.  667;  Howland  v.  Oaldand 
Consol.  Street  Ry.  Co.,  110  Cal.  513;  42 
Pac.  983);  he  cannot  be  allowed,  in  the 
appellate  court,  to  enlarge  the  grounds  of 
his  objections,  and  urge  new  ones  not  pre- 
sented in  the  first  instance  (Frank  v.  Pen- 
nie, 117  Cal.  254;  49  Pac.  208);  but  the 
respondent,  on  appeal,  may  justify  the  rul- 
ings of  the  court  upon  any  ground,  whether 
advanced  in  the  discussion  below  or  not. 
Clarke  v.  Ruber,  25  Cal.  593;  Davev  v. 
Southern  Pacific  Co.,  116  Cal.  325;  48  Pac. 
117. 

Contents  of  transcript.  Copies  of  such 
papers  as  are  designated  in  this  section 
must  be  set  out  in  and  be  made  a  part  of 
the  transcript.  San  Francisco  etc.  R.  R. 
Co.  V.  Anderson,  77  Cal.  297;  19  Pac.  517. 
It  cannot  be  said  that  the  verdict  shows 
prejudice  as  being  excessive,  where  the 
transcript  contains  no  testimony  as  to  the 
]ilaintiff's  injuries.  Kirk  v.  Santa  Barbara 
Ice  Co..  157  Cal.  591;  108  Pac.  509.  All 
matter  that  docs  not  tend,  in  some  degree, 
to  illustrate  the  points  made  upon  appeal 
should  be  omitted  from  the  transcript.  Es- 
tate of  Boyd,  25  Cal.  511.  The  undertak- 
ing on  appeal  should  not  be  embodied  in 
the  transcript.  San  Francisco  etc.  R.  R. 
Co.  V.  Anderson,  77  Cal.  297;  19  Pac.  517. 
Where  the  appeal  is  taken  on  the  judgment 
roll  alone,  the  transcript  need  not  contain 
a  statement  of  the  grounds  of  the  appeal. 
Solomon  v.  Reese,  34  Cal.  28.  Afiiilavits 
printed  in  the  transcript,  which  form  no 
part  of  the  record,  cannot  be  considered. 
Warren  v.  Russell,  129  Cal.  381;  62  Pac. 
75.  Where  the  transcript  purports  to  con- 
tain a  record  of  all  the  proceedings  of  the 
superior  court,   sought   to  be  leviewed   on 


§950 


APPEALS   IN   GENERAL. 


1078 


appeal,  it  is  sufficient  to  avoid  a  dismissal, 
under  the  rules  of  the  supreme  court. 
Tompkins  v.  Montgomery,  116  Cal.  120;  47 
Pac.  1006. 

Waiver  of  objections  to  transcript.  A 
stipulation  that  the  transcript  contains  all 
that  is  necessary  for  the  purposes  of  the 
appeal,  is  a  waiver  of  the  objection  that 
the  transcript  does  not  contain  all  the 
judgment  roll.  Solomon  v.  Reese,  31  Cal. 
28.  The  appellant  cannot  predicate  error 
on  a  record  to  which  he  has  consented. 
Grunsky  v.  Field,  1  Cal.  App.  623:  82  Pac, 
979. 

One  transcript  for  several  appeals.  On 
appeal  from  a  judgment,  and  from  an  order 
subsequent  to  the  judgment,  the  record  on 
each  appeal  may  be  included  in  one  tran- 
script. Sharon  v.  Sharon,  68  Cal.  326;  9 
Pac.  187.  Where,  on  four  appeals,  but  one 
transcript  is  made  up,  so  that  the  appel- 
late court  cannot  determine  on  what  the 
lower  court  acted,  the  appeals  will  be  dis- 
missed.   People  v.  Center,  61  Cal.  191. 

Time  for  filing  transcript.  As  an  appeal 
is  not  perfected  until  the  undertaking 
thereon  is  filed,  the  period  of  forty  days 
for  filing  the  transcript  does  not  commence 
until  such  undertaking  is  filed.  Wads- 
worth  V.  Wadsworth,  74  Cal.  104;  15  Pac. 
447.  The  time  within  which  a  transcript 
on  appeal  must  be  filed  does  not,  in  all 
cases,  commence  to  run  from  the  date  of 
perfecting  the  appeal;  if  there  is  an  unset- 
tled bill  of  exceptions  or  statement  which 
may  be  used  in  support  of  the  appeal,  the 
forty  days  does  not  begin  to  run  until  such 
bill  or  statement  is  settled.  Somers  v. 
Somers,  83  Cal.  621;  24  Pac.  162.  The 
forty  days'  time  within  which  the  tran- 
script may  be  served  and  filed,  under  the 
rule  of  the  supreme  court,  cannot  com- 
mence to  run  pending  a  proceeding  in  the 
trial  court  for  the  settlement  of  a  bill 
of  exceptions  for  use  in  the  appeal  from 
the  judgment.  Dernham  v.  Bagley,  151 
Cal.  216^;  90  Pac.  543.  The  time  within 
which  to  file  the  transcript  upon  appeal 
from  a  judgment  is  required  to  be  filed, 
is  not  extended  by  reason  of  a  pending  and 
unsettled  bill  of  exceptions  upon  appeal 
from  an  order  made  after  judgment,  which 
is  not  applicable  to  the  appeal  from  the 
judgment.  Butler  v.  Soule,  117  Cal.  226; 
49  Pac.  5.  A  bill  of  exceptions,  used  on 
the  motion  for  a  new  trial,  which  can  be 
used  on  appeal  from  the  judgment,  cannot 
be  held  to  excuse  the  delay  to  file  a  tran- 
script upon  appeal  from  the  judgment, 
where  such  bill  of  exceptions  had  been  set- 
tled more  than  forty  days  before  notice  of 
the  motion  to  dismiss  the  appeal  from  the 
judgment.  Bell  v.  Southern  Pacific  R.  R. 
Co.,  137  Cal.  77;  69  Pac.  692.  A  bill  of 
exceptions,  taken  upon  the  order  of  the 
court  refusing  to  vacate  its  order  for  the 
issuance  of  a  writ  of  assistance,  has  not 
the   effect   of   extending   the   time     within 


which  the  transcript  on  appeal  from  the 
judgment  in  the  case  must  be  filed.  Pignaz 
V.  Burnett,  121  Cal.  292;  53  Pac.  633. 
Where  a  motion  for  a  new  trial  is  pending, 
the  time  for  filing  the  transcript  on  an  ap- 
peal from  a  judgment  is,  under  the  rules 
of  the  supreme  court,  extended  for  forty 
da,ys  after  the  disposition  of  the  motion. 
People  V.  Bank  of  San  Luis  Obispo,  152 
Cal.  261;  92  Pac.  481.  The  transcript  on 
appeal  from  an  order  refusing  to  set  apart 
a  probate  homestead,  or  to  exempt  per- 
sonal property,  or  to  grant  a  family  allow- 
ance, must  be  filed  within  forty  days  after 
the  appeal  has  been  perfected,  notwith- 
standing the  pendency  of  proceedings  for 
a  new  trial.  Estate  of  Heywood,  154  Cal. 
312;  97  Pac.  825.  The  pendency  of  a  mo- 
tion to  vacate  a  judgment  is  no  excuse  for 
a  failure  to  file  the  transcript  on  appeal 
within  time.  Modoc  Co-operative  Ass'n  v. 
Porter,  11  Cal.  App.  270;  104  Pac.  710. 
The  filing  of  the  printed  transcript  on  the 
day  of  the  filing  of  the  motion  to  dismiss 
the  appeal  for  failure  to  file  such  tran- 
script, will  not  defeat  such  motion:  the 
filing  of  the  transcript  can  defeat  the  mo- 
tion, only  when  it  is  filed  before  the  notice 
of  motion  to  dismiss  is  served.  Ward  v. 
Healy,  110  Cal.  587;  42  Pac.  1071.  The 
pendency  of  a  motion  to  dismiss  an  appeal 
does  not,  of  itself,  extend  the  time  within 
which  the  appellant  is  required  to  file  his 
transcript.  White  v.  White,  112  Cal.  577; 
44  Pac.  1026.  The  filing  of  a  i^rinted  tran- 
script is  not  required  under  the  new 
method  of  appeal  provided  by  §§  953a, 
9a3b,  and  953c,  post;  hence,  the  rule  of  the 
supreme  court,  requiring  a  printed  tran- 
script to  be  filed  within  forty  days  after 
the  appeal  is  perfected,  is  inapplicable  to 
such  an  appeal.  Estate  of  Keating,  158 
Cal.  109;  110  Pac.  109. 

What  constitutes  filing.  The  fact  that 
the  printed  transcript  was  in  the  office  of 
the  express  company,  in  transit  to  the  clerk 
for  filing,  when  the  motion  to  dismiss  the 
appeal  was  served,  is  not  the  equivalent 
of  filing  such  transcript.  Ward  v.  Healy, 
110  Cal.  587;  42  Pac.  1071. 

Dismissal  of  appeal  for  defects  in  tran- 
script. The  objection  that  some  parts  of 
the  judgment  roll  have  been  omitted  from 
the  transcript  is  not  ground  for  the  dis- 
missal of  an  appeal,  in  the  first  instance; 
and  the  respondent  must  notify  the  appel- 
lant of  his  objections,  and  the  appellant 
will  then  have  an  opportunity  to  supply 
the  papers;  and  where  he  fails  to  do  so, 
he  must  take  the  risk  of  having  his  appeal 
dismissed.  Hellings  v.  Duval,  119  Cal.  199; 
51  Pac.  335.  An  appeal  cannot  be  dis- 
missed, where  the  entire  record  in  the 
transcript  must  be  examined  for  the  pur- 
pose of  ascertaining  the  sufficiency  of  the 
grounds  urged  in  support  of  the  motion; 
hence,  the  ground  for  a  dismissal,  set  forth 
in  the  notice  of  motion,  that  the  transcript* 


1079 


DISMISSAL  FOR  FAILURE  TO   FILE  TRANSCKII'T. 


§930 


does  not  contain  any  specifications  of  er- 
rors of  law,  or  the  particulars  in  which  the 
evidence  is  insuflicient  to  sup[»ort  the  ver- 
dict, Cijunot  be  considered.  Jarinan  v.  Rea, 
129  Cal.  157;  61  Pac.  790.  Where  the 
transcript  fails  to  show  the  papers  used 
on  the  hearing  in  the  court  below,  upon 
which  the  court  acted  in  making  and  ron- 
dering  the  order  a])pealed  from,  the  appeal 
will  not  be  dismissed,  as  the  question  in- 
volves an  examination  of  the  transcrijit, 
which  will  not  be  done  on  a  motion  to  dis- 
miss. Wolf  V.  Board  of  Supervisors,  143 
Cal.  333;  76  Pac.  1108.  Alleged  defects 
in  the  statement  of  the  case,  embodied  in 
the  transcript  on  appeal,  wull  not  be  con- 
sidered on  motion  to  dismiss  the  appeal, 
but  when  the  case  comes  up  on  its  merits. 
Richardson  v.  Eureka,  92  Cal.  64;  28  Pac. 
102.  Where  the  settled  bill  of  exceptions, 
properly  certified,  contains  the  order  ap- 
pealed from,  a  motion  to  dismiss  the  appeal, 
because  the  order  does  not  elsewhere  ap- 
pear in  the  transcript,  is  not  tenable.  Wolf 
V.  Board  of  Supervisors,  143  Cal.  333;  76 
Pac.  1108.  Proof  of  service  of  the  notice 
of  appeal  need  not  be  included  in  the  tran- 
si;:ript,  and  its  absence  therefrom  is  not 
a  ground  for  the  dismissal  of  the  appeal. 
Warren  v.  Hopkins,  110  Cal.  506;  42  Pac. 
986;  and  see  Modesto  Bank  v.  Owens,  121 
Cal.  223;  53  Pac.  552;  People  v.  Alameda 
Turnpike  Road  Co.,  30  Cal.  182;  Ellis  v. 
Bennet,  2  Cal.  Unrep.  302;  3  Pac.  801.  A 
motion  to  dismiss  an  appeal,  for  failure 
of  the  transcript  to  show  service  of  notice 
of  appeal,  will  be  denied,  where,  at  the 
hearing  of  the  motion,  proof  of  such  ser- 
vice was  made.  Estate  of  Stratton,  112 
Cal.  513;  44  Pac.  1028.  Where  the  evi- 
dence of  the  service  of  a  notice  of  appeal, 
as  contained  in  the  transcript,  is  defective, 
the  appellant  will  be  allowed  to  show,  by 
proper  proof,  that  a  sufficient  service  had 
been  made,  and  an  appeal  will  not  be  dis- 
missed for  such  failure  in  the  transcript. 
Knowlton  v.  MacKenzie,  110  Cal.  183;  42 
Pac.  580.  Interlineations  in  a  printed 
transcript  are  not,  per  se,  ground  for  dis- 
missing the  appeal  or  for  reprinting  the 
transcript.  Swasey  v.  Adair,  83  Cal.  136; 
23  Pac.  284. 

Dismissal  for  failure  to  file  transcript. 
An  appeal  will  be  dismissed  for  I'ailure  to 
file  the  printed  transcript  within  forty 
days  after  the  refusal  of  the  judge  to  set- 
tle or  certify  any  bill  of  exceptions,  which 
must  be  regarded  with  the  same  effect  as 
its  settlement.  White  v.  White.  112  Cal. 
577;  44  Pac.  1026.  The  appeal  will  be  dis- 
missed, where  there  is  a  failure  to  file  the 
transcript  within  .the  prescribed  time. 
Hart  V.  Kimberly,  5  Cal.  Unrep.  532;  46 
Pac.  618;  Johnson  v.'  Goodyear  Mining  Co., 
6  Cal.  Unrep.  274;  57  Pac.  383;  Warren 
V.  McGowan,  7  Cal.  Unrep.  190;  77  Pac. 
909.  Where,  after  taking  an  appeal,  a 
guardian  ad  litem  failed  to  file  a  bill  of 


exceptions  or  Btatemont  on  appeal,  and  did 
not  request  the  clerk  of  the  lower  court 
to  certify  any  transcrijjt  of  the  record  on 
appeal,  and  none  was  filed,  the  appeal  will 
be  dismissed.  In  re  Moss,  7  Cal.  Unrep. 
172;  74  Pac.  546.  Where,  as  to  certain 
resi>ondents,  an  aj)peal  is  to  be  considered 
upon  the  judgment  roll  alone,  without  a 
bill  of  exceptions,  and  no  transcript  is  filed 
or  served,  the  appeal,  as  to  such  respond- 
ents, will  be  dismissed,  although  they  are 
included  in  a  notice  of  ajipeal  with  others, 
on  whom  a  bill  of  exceptions  has  been 
served,  which  has  not  yet  been  settled. 
Emeric  v.  Alvarado,  106  Cal.  646;  40  Pac. 
11.  Where  no  transcript  on  appeal  was 
filed  within  the  time  prescribed  by  the 
rules  of  the  court,  and  no  extension  of 
time  was  obtained  for  that  purpose,  the 
motion  to  dismiss  the  appeal  will  prevail. 
Galloway  v.  Rouse,  63  Cal.  280.  An  ex- 
tension of  the  time  within  which  to  file  the 
transcript  may  be  granted  by  the  supreme 
court;  hence,  an  appeal  will  not  be  dis- 
missed, where  the  transcript  was  filed 
within  the  time  as  extended.  Meeker  v. 
Hoffer,  57  Cal.  140.  Where  the  transcript 
on  appeal  is  not  filed  within  the  time 
granted  by  the  supreme  court,  but  the  ap- 
pellant acted  in  good  faith,  upon  a  mis- 
taken construction  of  the  order  extending 
the  time,  and  the  transcript  was  served 
soon  after  such  time,  and  the  respondent 
is  not  injured,  the  ajtpeal  will  not  be  dis- 
missed. Brunnings  v.  Townsend,  6  Cal. 
Unrep.  647;  64  Pac.  106.  Where  the  clerk 
of  the  supreme  court  permitted  an  appel- 
lant, on  filing  a  written  transcript,  to  have 
it  printed  himse'if,  at  his  home  tov/n.  in- 
stead of  depositing  the  money  to  cover  the 
costs  thereof,  as  required  by  the  rules  of 
the  court,  and  the  appellant,  some  forty- 
eight  days  later,  filed  the  printed  tran- 
script, but,  prior  to  such  filing,  and  on  the 
same  day,  a  motion  to  dismiss  for  failure 
to  file  was  served  on  him,  such  permission 
of  the  clerk  was  a  waiver,  in  effect,  of  the 
rule  of  the  court,  which,  although  unau- 
thorized, so  far  excused  the  appellant,  that, 
under  the  circumstances  of  the  case,  the 
appeal  should  not  be  dismissed.  Ward  v. 
Healy,  110  Cal.  587;  42  Pac.  1071.  Failure 
to  file  the  transcript  within  the  time  lim- 
ited by  the  rule  of  the  court  and  the  stipu- 
lation of  the  parties,  will  not  justify  a  dis- 
missal of  the  appeal,  where  the  facts  and 
circumstances  presented  in  the  affidavit  in 
behalf  of  the  appellant  are  such  as  to  ex- 
cuse such  failure.  Esrey  v.  Southern  Pa- 
cific Co.,  4  Cal.  Unrep.  402;  35  Pac.  310; 
and  see  Carter  v.  Paige,  77  Cal.  64;  19  Pac. 
2.  A  motion  to  dismiss  an  appeal  for  fail- 
ure of  the  appellant  to  file  the  transcript 
within  forty  days  after  the  aippeal  was 
perfected,  will  be  denied,  where  there  is 
an  uncertified  bill  of  exceptions,  which  the 
judge  declined  to  sign  and  certify,  on  the 
ground   that   the   engrossed   bill   had   been 


§951 


APPEALS   IN    GENERAL. 


1080 


filed  in  the  clerk's  office,  and  that  he  had 
no  authority  to  certify  it.  Jackson  v. 
Puget  Sound  Lumber  Co.,  115  Cal.  632;  47 
Pac.  603.  A  motion  to  dismiss  an  appeal 
from  the  judgment,  because  the  transcript 
was  not  filed  in  time,  will  be  denied,  where 
the  bill  of  exceptions,  or  statement  on  mo- 
tion for  a  new  trial,  had  not  been  settled. 
Estate  of  Walkerly,  4  Cal.  Unrep.  819;  37 
Pac.  S93;  Pionaz  v.  Burnett,  119  Cal.  157; 
51  Pac.  48;  Bernard  v.  Sloan,  138  Cal.  746; 
72  Pac.  360;  San  Francisco  Law  etc.  Co. 
V.  State,  141  Cal.  354;  74  Pac.  1047;  Castro 
V.  Breidenbach,  143  Cal.  335;  76  Pac.  1114. 
"Where  the  superior  judge,  after  motion 
to  dismiss  the  appeal  for  failure  to  file  the 
transcript,  settled  the  statement,  which 
was  objected  to  because  of  irregularities, 
it  must  be  presumed  that  the  act  of  the 
judge  in  settling  the  statement  was  within 
his  jurisdiction,  and  the  appeal  will  not 
be  dismissed  for  failure  to  file  the  tran- 
script. Estate  of  Scott,  124  Cal.  671;  57 
Pac.  654.  A  motion  to  dismiss  an  appeal 
from  the  judgment^  for  failure  to  file  the 
transcript,  will  be  denied,  though  more 
than  forty  days  have  elapsed  after  the 
perfecting  of  the  appeal,  where  the  tran- 
script was  filed  within  forty  days  after  the 
settlement  of  a  statement  on  motion  for  a 
new  trial  made  upon  the  minutes  of  the 
court,  notwithstanding  more  than  sixty 
days  had  elapsed  after  the  entry  of  the 
order  denying  the  new  trial,  before  the 
statement  was  settled,  and  no  appeal  was 
taken  from  the  order.  Vinson  v.  Los 
Angeles  Pacific  E.  E.  Co.,  141  Cal.  151;  74 
Pac.  757.  A  motion  to  dismiss  an  appeal 
for  failure  to  file  the  transcript  in  time 
will  be  denied  unless  the  certificate  of  the 
clerk  justifies  it;  the  affidavit  of  the  re- 
spondent as  to  the  character  of  the  records 
kept  by  the  clerk  is  inadmissible  to  con- 
tradict the  latter's  certificate,  upon  which 
alone  the  motion  must  be  heard.  Chevassus 
V.  Burr,  134  Cal.  434;  66  Pac.  568. 

§  951.  What  papers  used  on  appeals  from  orders,  except  orders  grant- 
ing  new  trials.  On  appeal  from  a  judgment  rendered  on  an  appeal,  or  from 
an  order,  except  an  order  granting  a  new  trial,  the  appellant  must  furnish 
the  court  with  a  copy  of  the  notice  of  appeal,  of  the  judgment  or  order 
appealed  from,  and  of  papers  used  on  the  hearing  in  the  court  below. 

plies  to  records  on  appeal,  prepared  under 
§§  953a,  953c,  post:  a  notice  of  appeal  must 
be  included  in  every  record.  Merritt  v. 
Los  Angeles,  162  Cal.  47;  120  Pac.  1064. 

Appeal  perfected  how.  To  perfect  an 
appeal  from  an  order  heard  and  deter- 
mined, at  least  in  part,  upon  affidavits,  it 
is  necessary  for  the  appellant  to  follow 
either  the  method  prescribed  by  §§  953a, 
953b,  and  953c,  post,  or  that  prescribed  by 
the  rules  of  the  supreme  court.  Hibernia 
Sav.  &  L.  Soc.  V.  Doran,  161  Cal.  118;  118 
Pac.  526.  Upon  appeal  from  an  order 
denying   a   motion   to   vacate   a   judgment. 


No  dismissal  for  failure  to  serve  tran- 
script. Failure  of  the  appellant's  attor- 
ney to  serve  a  copy  of  the  transcript  on 
the  respondent's  attorney,  before  .  or  at 
the  time  of  filing,  is  not  a  ground  for  dis- 
missing the  appeal.  Estate  of  Boyd,  25 
Cal.  511. 

CODE  COMMISSIONEES'  NOTE.  1.  Notice 
of  appeal.  Transcript  must  show  that  notice 
of  appeal  was  filed  in  due  time.  Franklin  v. 
Reiner,  8  Cal.  340;  Hildreth  v.  Gwindon,  10 
Cal.  490;  Coleman  v.  Wilkins,  July  term,  1872. 
It  is  not  necessary  that  there  should  be  a  state- 
ment in  the  transcript  that  notice  of  appeal 
was  filed  and  served.  It  is  sufficient,  within 
the  rule  of  the  cases  cited  supra,  if  a  copy  of 
the  notice  of  appeal  and  of  the  proof  of  service 
appear  in  the  record.  Western  Pacific  R.  R.  Co. 
V.  Reed,  35  Cal.  621.  If  the  parties  stipulate 
that  notice  of  appeal  was  filed  in  the  court  be- 
low, and  served,  the  appellate  court  will  not  re- 
ceive evidence  to  contradict  the  stipulation,  nor 
will  it  dismiss  the  appeal  because  no  notice  was 
filed.     Bonds  v.  Hickman,  29  Cal.  460. 

2.  Undertaking.  A  statement  that  an  under- 
taking in  due  form  was  filed  within  the  time 
prescribed,  is  sufficient.  Wakeman  v.  Coleman, 
28  Cal.  58;  Franklin  v.  Goodman,  31  Cal.  458; 
see  also  Franklin  v.  Reiner,  8  Cal.  340;  Cook  v. 
Klink,  8  Cal.  352. 

3.  Pleadings.  Not  necessary  always  to  bring 
up  pleadings  in  full.  A  summary,  if  agreed  to 
by  the  attorneys,  will  in  most  cases  be  sufficient. 
Todd  v.  Winants,  36  Cal.  129. 

4.  Bills  of  exceptions,  and  other  parts  of  the 
judgment  roll.  Where  parties  in  the  same  ac- 
tion take  independent  appeals,  each  appeal  must 
be  heard  on  its  own  record.  Gates  v.  Walker, 
35  Cal.  289;  Fair  v.  Stevenot,  29  Cal.  486.  If 
an  appeal  is  taken  from  the  judgment,  and  also 
from  an  order  denying  a  new  trial,  the  appeal 
from  the  judgment  must  be  determined  on  the 
judgment  roll  alone.  Rush  v.  Casey,  39  Cal.  339. 
When  an  appeal  is  taken,  and  the  parties  rely 
upon  the  judgment  roll,  no  statement  of  grounds 
is  necessary.  Jones  v.  Petaluma,  36  Cal.  230. 
But  under  this  code  a  bill  of  exceptions,  based 
upon  the  fact  that  the  decision  or  verdict  is  not 
supported  by  the  evidence,  must  contain  a  specifi- 
cation of  the  particulars  in  which  the  evidence 
is  alleged  to  be  insufficient.      §  648.  ante. 

5.  What  should  be  omitted.  The  clerk's  min- 
utes. Mendocino  County  v.  Morris,  32  Cal.  145. 
Matters  that  do  not  illustrate  the  point,  Estate 
of  Boyd,  25  Cal.  512.  The  original  pleadings, 
where  they  have  been  superseded  by  amended 
ones.      Marriner  v.  Smith,  27  Cal.  649. 


Legislation  §  951.  1.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  346,  as  amended  by  Stats. 
1863-64,   p.    247.     See  ante.  Legislation  §  950. 

3.     Amended  by  Code  Amdts.  1873-74,  p.  339, 

(1)  inserting    "of"    before    "the    judgment,"    and 

(2)  substituting  "papers  used  on  the  hearing  in 
the  court  below"  for  "the  bill  of  exceptions  relat- 
ing thereto." 

3.  Amended  by  Stats.  1915,  p.  205,  striking 
out  "or  refusing,"  in  the  phrase  "granting  or 
refusing  a   new   trial." 

Construction  of  section.  This  section 
does  not  require  that  findings  in  supple- 
mentary proceedings  shall  be  brought  up 
by  a  bill  of  exceptions.  Lyons  v.  Marcher, 
119  Cal.  382;  51  Pac.  559. 

Application  of  section.     This  section  ap- 


1081 


PAPERS  ON  APPEAI., AUTIIENTICATIOX. 


§951 


of  dismiRsnl,  the  burden  is  upon  the  plain- 
tiffs apiioalinjf  from  the  order  to  have 
settled  a  bill  of  exceptions,  showing  the 
evidence  taken  ujion  the  hearing  of  such 
motion.  Estate  of  Dean,  149  Cal.  487;  87 
Pac.  i;'.. 

Copy  of  order  appealed  from.  The  ap- 
pellant must  furnish  copies  of  the  orders 
appealed  from;  and  if  the  record  has  been 
destroyed  by  fire,  he  must  have  the  record 
restored.  Estate  of  Hey  wood,  154  Cal.  312; 
97  Pac.  825.  The  reciuirement  of  this  sec- 
tion, that  the  appellant  must  furnish  the 
supremo  court  with  a  copy  of  the  order 
appealed  from,  indicates  that  a  copy  of 
the  order  must  be  furnished  the  apjiellant 
by  the  clerk  of  the  court  in  whi(di  it  was 
made,  and  not  by  the  clerk  of  the  court 
to  which  the  action  was  transferred.  Mans- 
field V.  O'Keefe,  133  Cal.  362;  65  Pac.  825. 
It  is  not  necessary  that  orders  api)ea]ed 
from  shall  be  contained  in  any  bill  of  ex- 
ceptions or  statement:  copies  of  the  or- 
ders, certified  by  the  clerk,  with  a  copy 
of  th?  notice  of  appeal,  are  sufficient  to 
sustain  the  appeal.  Brode  v.  Goslin,  158 
Cal.  699;  112  Pac.  280.  On  an  appeal  from 
an  order  dissolving  a  preliminary  injunc- 
tion, the  order  must  be  embodied  in  the 
transcript  on  appeal.  Kimple  v.  Conway, 
69  Cal.  71;  10  Pac.  1S9. 

Papers  used  on  the  hearing.  An  appeal 
from  an  order  dissolving  an  injunction 
must  be  heard  upon  the  papers  and  evi- 
dence used  on  the  hearing  in  the  court 
below,  which  must  be  incorporated  in  a 
bill  of  exceptions,  or  authenticated  by  the 
judge  as  having  been  used  at  the  hearing 
of  the  motion,  and  as  being  all  of  the 
papers  and  evidence  so  used;  and  upon 
failure  to  furnish  such  bill  of  exceptions 
or  authentication,  the  appeal  must  be  dis- 
missed. Spreckels  v.  Spreckels,  114  Cal. 
60;  45  Pac.  1022.  The  phrase  in  this  sec- 
tion, "papers  used  on  the  hearing,"  means 
all  of  the  papers.  Muzzv  v.  D.  H.  McEwen 
Lumber  Co.,  154  Cal.  685;  98  Pac.  1062. 
This  section  applies  only  to  orders  which 
are  themselves  appealable,  and  does  not 
relate  to  papers  used  on  the  hearing  which 
resulted  in  the  judgment;  hence,  papers 
used  on  the  hearing  of  an  application  to 
file  a  supplemental  complaint  need  not  be 
authenticated  by  a  bill  of  exceptions  on 
appeal  from  the  judgment.  Giddings  v.  76 
Land  etc.  Co.,  109  Cal.  116;  41  Pac.  788. 
Where  the  transcript  contains  no  bill  of 
exceptions,  and  no  showing  as  to  what 
papers  were  used  on  the  hearing  of  the 
order  appealed  from,  such  order  will  not 
be  reviewed.  Ellis  v.  Bennet,  2  Cal.  Unrep. 
302;  3  Pac.  801.  An  appeal  from  an  order 
revoking  a  temporary  restraining  order 
and  refusing  an  injunction  is  heard  upon 
the  papers  used  on  the  hearing  in  the  court 
below;  and  the  testimony  of  witnesses  con- 
tained in  the  record,  identified  by  the 
judge  as  having  been  given  on  the  hear- 


ing, will  be  treated  on  the  a[>peal  as 
written  affidavits.  Hunt  v.  Steese,  75  Cal. 
620;  17  I'ac.  920.  Upon  ai)peal  from  an 
order  of  confirmation,  it  is  the  duty  of  the 
ai)|)ellant  to  inaiic  the  return  of  sale,  used 
on  the  hearing  of  the  motion,  a  part  of 
the  record,  or  the  order  confirming  the 
sale  will  not  be  reviewed.  p]8tate  of  Rob- 
inson, 142  Cal.  152;  75  Pac.  777. 

Necessity  of  authenticating  papers  used 
on  hearing.  \Vhere  the  |>apers  found  in 
the  transcript  are  not  identified  as  having 
been  used  on  the  hearing  in  the  court 
below,  the  order  appealed  from  must  be 
affirmed.  White  v.  Longmire,  63  Cal.  232; 
and  see  Baker  v.  Snyder,  58  Cal.  617. 
When  the  record  on  ap[)eal  from  an  order 
changing  the  place  of  trial  fails  to  contain 
any  papers  identified  as  having  been  used 
in  the  lower  court  on  the  hearing  of  the 
motion  to  change,  such  motion  will  be  pre- 
sumed to  have  been  properly  made.  Mc- 
Aulay  V.  Truckee  Ice  Co.,  79  Cal.  50;  51 
Pac.  434;  and  see  Pardy  v.  Montgomery, 
77Cal.  326;  19  Pac.  530. 

Method  and  sufficiency  of  authentication. 
This  section  enumerates  a  list  of  jiapers, 
copies  of  which  must  be  furnished  the  ap- 
pellate court,  but  does  not  make  any  pro- 
vision as  to  authentication;  that  matter 
is  provided  for  by  rule  of  court,  requiring 
that  the  papers  and  evidence  be  authen- 
ticated by  incorporating  the  same  in  a  bill 
of  exceptions.  Harrison  v.  Cousins,  16  Cal. 
App.  515;  117  Pac.  564.  The  proper 
method  of  authenticating  papers  on  appeal 
is  by  a  bill  of  exceptions  certified  to  by 
the  judge.  Muzzy  v.  D.  H.  McEwen  Lum- 
ber Co.,  154  Cal".  685;  98  Pac.  1062.  On 
appeal  from  an  order  denying  a  motion  to 
vacate  a  judgment  of  dismissal,  all  of  the 
affidavits  and  evidence  used  upon  the  hear- 
ing must  be  authenticated  by  a  bill  of 
exceptions,  purporting  to  contain  them 
"all."  Estate  of  Dean,  149  Cal.  487;  87 
Pac.  13.  A  bill  of  exceptions,  certified  as 
settled  by  the  judge,  which  merely  refers 
to  numerous  papers  and  documents  as 
used  at  the  hearing,  which  are  not  incor- 
porated in  the  bill  of  exceptions,  is  in- 
sufficient, and  cannot  be  considered  upon 
appeal;  and  documents  omitted  from  the 
bill  of  exceptions  cannot  be  properly  au- 
thenticated by  stipulation  of  counsel  as  to 
the  correctness  of  file-marl\S  and  indorse- 
ments upon  documents  referred  to,  which 
are  ]>rinted  separately  in  the  transcript. 
San  Diego  Sav.  Bank  v.  Goodsell,  137  Cal. 
420;  70  Pac.  299.  Without  a  statutory  pro- 
vision authorizing  the  authentication  of 
copies  of  papers  in  some  other  way,  the 
only  proper  way  that  they  can  be  brought 
into  the  record  upon  appeal  and  identified 
is  by  bill  of  exceptions  or  statement;  and 
in  case  of  apjieal  from  any  decision  made 
after  judgment,  a  bill  of  exceptions  is  the 
only  proper  mode  of  authentication:  the 
certificate   of   the   judge   is   not   sufficient. 


§952 


APPEALS   IN    GENERAL. 


1082 


Herrlich  v.  McDonald,  80  Cal.  472;  22  Pac. 
299;  Somers  v.  Somers,  81  Cal.  608;  22 
Pac.  967.  The  rule  of  the  supreme,  court, 
providing  that  upon  an  appeal  from  an 
order  the  papers  or  evidence  used  on  the 
hearing  in  the  trial  court  must  be  authen- 
ticated by  a  bill  of  exceptions,  when  no 
other  mode  of  authentication  is  provided 
by  law,  was  intended  to  apply  only  to 
those  appeals  in  which  the  order  was 
sought  to  be  reversed  because  of  matters 
alleged  to  be  shown  by  affidavits,  or  evi- 
dence used  or  taken  on  the  hearing  in  the 
trial  court,  and  does  not  apply  when  the 
order  appealed  from  is  attacked  for  mat- 
ters appearing  upon  its  face;  hence,  the 
findings  of  the  court,  in  settling  the  ac- 
count of  an  executor,  need  not  be  authen- 
iicated  by  a  bill  of  exceptions,  being  a 
part  of  the  judgment  roll.  Miller  v.  Lux, 
100  Cal.  609;  35  Pac.  345.  As  the  statute 
prescribes  no  mode  in  which  the  papers 
used  on  the  hearing  in  the  court  below 
shall  be  authenticated,  the  appellate  court 
has  power  to  prescribe  by  rule  how  such 
papers  shall  be  brought  before  it  on  ap- 
peal; and  having  such  power,  it  has  the 
power  to  ratify  the  mode  adopted  by  the 
trial  court;  hence,  where  the  transcript 
contains  papers  used  on  the  hearing  in  the 
trial  court,  accompanied  by  the  certificate 
of  the  judge,  stating  what  papers  were 
used,  such  papers  are  properly  before  the 
appellate  court.  Pieper  v.  Centinela  Land 
Co.,  56  Cal.  173.  The  certificate  of  the 
judge,  reciting  that  the  affidavits  of  cer- 
tain persons  were  used  and  considered  on 
the  hearing  of  the  motion,  but  failing  to 
show  that  the  affidavits  set  out  in  the 
transcript  on  appeal  from  an  order  after 
judgment  are  the  same  as  those  used  and 
considered,  or  true  copies  of  them,  is  in- 
sufficient, and  the  appeal  should  be  dis- 
missed. Somers  v.  Somers,  81  Cal.  608;  22 
Pac.  967.  On  an  appeal  from  an  order  for 
counsel  fees  and  alimony,  made  pendente 
lite  in  an  action  for  divorce,  the  certifi- 
cate of  the  trial  judge  is  a  sufficient  iden- 
tification of  the  papers  used  on  the  hearing 
of  the  motion.  Schammel  v.  Schammel,  70 
Cal.  72;  11  Pac.  497;  and  see  Pieper  v. 
Centinela  Land  Co.,  56  Cal.  173.  Assuming 
that  the  clerk  has  power  to  authenticate 
papers  used  on  the  hearing  of  a  motion, 
such  authentication  is  insufficient,  if  it 
fails  to  state  that  the  papers  contained 
in  the  transcript  were  "all"  the  papers 
used  on  the  hearing.  Muzzy  v.  D.  H.  Mc- 
Ewen  Lumber  Co.,   154   Cal.   685;   98  Pac. 

§  952.  What  papers  to  be  used  on  appeal  from  an  order  granting  a  new 
trial.  On  appeal  from  an  order  granting  a  new  trial  the  appellant  mnst 
furnish  the  court  with  a  copy  of  the  notice  of  appeal,  of  the  order  appealed 
from,  the  judgment  roll  and  any  bill  of  exceptions  prepared  and  settled  as 
provided  in  section  six  hundred  fifty  of  this  code  subsequently  to  the  order 
granting  the  motion. 


1062.  Unless  the  affidavits,  etc.,  when 
used  on  a  motion,  are  then  indorsed  or 
marked  by  the  clerk,  his  certificate  to  the 
identity  of  such  papers  cannot  be  held  to 
be  determinative  of  the  fact,  as  against 
his  subsequent  statement,  that  he  signed 
the  certificate  by  mistake,  and  that  he 
did  not  know,  and  had  no  means  of  know- 
ing, whether  the  affidavits  were  or  were 
not  used  at  the  hearing  of  the  motion. 
Baker  v.  Snyder,  58  Cal.  617.  The  cer- 
tificates of  the  presiding  judge  and  of  the 
clerk,  made  after  the  service  and  the 
filing  of  the  notice  of  motion  to  dismiss 
the  appeal,  do  not  supply  defects  in  the 
transcript,  in  failing  to  contain  proof  of 
service  of  notice  of  appeal,  undertaking, 
bill  of  exceptions,  or  papers  used  on  mo- 
tion from  order  in  which  the  appeal  was 
taken.  Ellis  v.  Benuet,  2  Cal.  Unrep.  302; 
3  Pac.  801. 

Contents  of  bill  of  exceptions.  On  an 
appeal  from  an  order  denying  an  applica- 
tion to  fix  the  compensation  of  attorneys, 
which  application  was  submitted  "on  the 
files,  papers,  and  records  in  the  case,"  a 
will  and  codicil,  forming  a  part  of  such 
papers,  are  properly  included  in  the  bill  of 
exceptions.  Estate  of  Hite,  155  Cal.  448; 
101  Pac.  448. 

When  no  bill  of  exceptions  necessary. 
See  note  ante,  §  950. 

Contents  of  transcript.  On  an  appeal 
from  an  order  setting  aside  a  default,  the 
transcript  must  contain  a  bill  of  excep- 
tions, settled  and  signed  as  prescribed  by 
the  code.  Grazidal  v.  Bastanchure,  47  Cal. 
167.  Where  the  transcript  on  appeal  from 
an  order  granting  a  writ  of  assistance 
does  not  contain  a  copy  of  any  motion  or 
notice  of  motion  for  a  writ  of  assistance, 
or  order  to  show  cause  why  such  writ 
should  not  issue,  it  will  be  presumed  that 
the  order  appealed  from  was  made  upon 
an  ex  parte  application  against  the  defend- 
ant in  the  action;  hence,  the  appellants, 
not  being  parties  to  the  original  suit,  and 
not  having  been  made  parties  to  the  writ, 
are  not  parties  aggrieved,  and  have  no 
standing  on  appeal.  Miller  v.  Bate,  56  Cal. 
135.  The  undertaking  on  appeal  should 
not  be  embodied  in  the  transcript.  San 
Francisco  etc.  E.  R.  Co.  v.  Anderson,  77 
Cal.  297;  19  Pac.  517. 

Transcript  on  appeal.  See  also  note  ante, 
§950. 

CODE  COMMISSIONERS'  NOTE.      See  note  to 

§  950,  ante;  Harper  v.  Minor,  27  Cal.  109;  Glid- 
den  V.  Packard,  28  Cal.  649  ;  Paine  v.  Linhill,  10 
Cal.  370  ;  Freeborn  v.  Glazer,  10  Cal.  337. 


1083 


PAPERS  OX   APPEAL.   AFFIDAVIT,  BILL,  ETC. 


§952 


Legislation  8  952.  1.  Enacted  March  11,  1872, 
rpadiiig,  "§  95'2.  On  an  ai)pfal  from  iin  order  t;rant- 
ing  or  ri'fusinK  a  new  trial,  the  apju'llant  must 
furnish  the  cmirt  with  a  copy  of  the  not  ire  of 
motion  for  new  trial,  and  of  appeal,  and  of  the 
statement  provided  for  m  section  six  hundred  and 
sixty-one,  and  of  all  the  pleadings,  papers,  bills 
of  exception,  and  aflidavits  referred  to  and  mado 
part  of  such  staliinent." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  339, 
substituting,  at  end,  for  former  provision,  "a  co|)y 
of  the  notice  of  appeal,  of  the  order  appealed 
from,  and  of  the  papers  designated  in  section  six 
hundred  and  sixty-one  of  this  code." 

3.  Amended  by  Stats.  1901,  p.  174;  uncon- 
stitiitional.      See   note   ante,  §  r>. 

4.  Amended  by  Stats.  1915,  p.  20.5,  recast- 
ing the  section. 

Application  of  section.  This  section  ap- 
])lios  to  rocords  on  appeal  j)repared  under 
§§  9o3a,  953c,  post.  Merritt  v.  Los  Angeles, 
162  Cal.47;  120  Pac.  10G4. 

Notice  of  appeal.  A  notice  of  appeal 
must  be  included  in  every  record.  Merritt 
V.  Los  Anfjeles,  162  Cal.  47;  120  Pac.  1064. 
.  Original  papers  to  remain  on  file.  The 
originals  of  the  classes  of  ])apers  referred 
to  in  this  section  should  remain  on  file  in 
the  office  of  the  clerk  of  the  sui)erior  court, 
and  not  be  sent  up  to  the  reviewing  court. 
Knoch  V.  ITaizlip,  163  Cal.  20;  124  Pac.  997. 

Judgment  roll.  The  judgment  roll  must 
be  embodied  in  the  transcript,  on  appeal 
from  an  order  denying  a  new  trial.  Kimple 
V.  Conway,  69  Cal.  71;  10  Pac.  189. 

Affidavits  used  at  hearing.  Under  this 
section,  it  is  the  duty  of  the  appellant  to 
bring  up  not  only  the  judgment  roll  and 
the  bill  of  excejitions,  but  also  such  affi- 
davits as  may  have  been  used  on  the  hear- 
ing, properly  authenticated  in  the  bill  of 
exceptions;  and  in  the  absence  of  such 
showing,  it  will  be  conclusively  presumed, 
that  the  motion  was,  in  part,  based  on 
some  ground  upon  which  affidavits  could 
be  used;  that  affidavits  were  in  fact  used 
on  the  hearing;  and  that  such  affidavits 
were  sufficient  to  justify  the  court  in  mak- 
ing the  order  appealed  from.  Skinner  v. 
Horn,  144  Cal.  278;  77  Pac.  904.  Affidavits 
used  on  the  hearing  of  the  motion  for  a 
new  trial  must  be  incorporated  in  the  bill 
of  exceptions,  under  the  rules  of  the  su- 
preme court:  a  certificate  of  the  judge, 
authenticating  certain  affidavits  as  having 
been  used  upon  the  hearing  of  the  motion, 
without  showing  that  these  were  all  the 
papers  used  at  the  hearing,  is  insufficient. 
Melde  v.  Eeynolds,  120  Cal.  2.S4;  ;"2  Pac.  491. 

Statement  or  bill  of  exceptions.  Upon 
an  appeal  from  an  order  granting  or  re- 
fusing a  new  trial,  the  statement  or  bill 
of  excei)tions,  as  used  on  the  hearing  of 
the  motion  in  the  court  below,  must  be 
brought  up  to  the  appellate  court  by  the 
transcript  on  appeal:  where  the  transcript 
is  in  such  imperfect  condition  that  it  has 
to  be  disregarded,  there  remains  no  record 
upon  which  the  appellant  is  entitled  to  be 
heard.  Thomjison  v.  Patterson,  54  Cal.  542. 
A  stipulation  as  to  the  correctness  of  the 


transcript  does  not  estop  the  respondent 
from  objecting  to  the  sufficiency  of  the 
statement  to  .suj)port  the  motion  for  a  new 
trial.  Carver  v.  San  Joaquin  Cigar  Co., 
16  Cal.  App.  761;  118  Pac  92. 

Notice  of  motion  for  new  trial.  The 
notice  of  intention  to  move  for  a  new  trial 
constitutes  no  ])art  of  the  record  on  ap- 
peal from  an  order  granting  or  refusing 
a  new  trial.  Hook  v.  Hall,  68  Cal.  22;  8 
Pac.  596;  Eichardson  v.  Eureka,  92  Cal. 
64;  28  Pac.  102.  A  copy  of  the  notice 
of  intention  to  move  for  a  new  trial, 
though  printed  in  the  transcript,  cannot  be 
considered  as  a  part  of  the  record  on 
appeal,  where  it  is  not  authenticated  by  a 
bill  of  exceptions.  Dennis  v.  Gordon,  163 
Cal.  427;  125  Pac.  1063.  An  order  deny- 
ing a  motion  for  a  new  trial  is  a  part  of 
the  record;  and  where  it  recites  that  the 
motion  was  made  on  the  grounds  set  forth 
in  the  defendant's  notice  of  motion,  it 
sufficiently  shows  that  the  notice  was 
given:  it  is  not  necessary  that  the  notice 
shall  be  formallv  set  out.  Randall  v.  Duff, 
79  Cal.  115;  3  L.  R.  A.  754;  19  Pac.  532; 
21  Pac.  610. 

Papers  on  appeal,  where  motion  made  on 
minutes.  On  ajipcal  from  an  order  grant- 
ing or  refusing  a  new  trial,  on  the  min- 
utes of  the  court,  or  from  an  order  grant- 
ing a  new  trial  by  the  court  on  its  own 
motion,  a  statement  prepared  subsequently 
to  such  ruling  of  the  court,  with  the  judg- 
ment roll  and  a  copy  of  the  order,  con- 
stitute the  papers  on  which  the  same  is 
to  be  heard.  Emeric  v.  Alvarado,  64  Cal. 
529;  2  Pac.  418. 

Opinion  of  judge.  The  written  opinion 
of  the  trial  judge  is  not  a  part  of  the 
record  on  appeal  (Classen  v.  Thomas,  164 
Cal.  196;  128  Pac.  329;  Goldner  v.  Spencer, 
163  Cal.  317;  125  Pac.  347;  People  v. 
Quong  Sing,  20  Cal.  App.  26;  127  Pac. 
1052),  although  printed  in  the  transcript. 
Bouchard  v.  Abrahamseu,  4  Cal.  App.  430; 
88  Pac.  383. 

Order  granting  new  trial.  The  order  en- 
tered in  the  minutes  is  the  only  record  of 
the  court's  action  in  granting  a  new  trial, 
and  is  to  be  measured  bv  its  terms.  Clas- 
sen V.  Thomas,  164  Cal.  196;  128  Pac.  329. 

Record  on  appeal.  Except  in  the  case 
of  a  bill  of  exceptions  settled  after  judg- 
ment, or  on  an  ap[ieal  from  an  order 
granting  or  refusing  a  new  trial  made  on 
the  minutes  of  the  court,  the  record  on 
appeal  consists  of  copies  of  the  notice  of 
appeal,  the  judgment  roll,  and  the  bill  of 
exceptions,  statement,  and  affidavits  used 
on  the  hearing  of  the  motion.  Frost  v. 
Los  Angeles  Ry.  Co.,  165  Cal.  365;  132 
Pac.  442.  The  undertaking  on  appeal 
should  not  be  embodied  in  the  transcript. 
San  Francisco  etc.  R.  R.  Co.  v.  Anderson, 
77  Cal.  297;  19  Pac.  517.  On  appeal  from 
an  order  denying  a  new  trial,  a  notice  of 


§953 


APPEALS   IN   GENERAL. 


1084 


motion  for  relief,  under  §  473,  ante,  and  a 
minute-order  granting  it,  are  no  part  of 
the  record  on  appeal,  though  printed  in 
the  transcript,  if  they  are  not  embodied 
in  a  statement  or  bill  of  exceptions. 
King  V.  Dugan,  150  Cal.  258;  88  Pac.  925. 
On  appeal  from  an  order  refusing  a  new 
trial,  a  copy  of  the  notice  of  intention 
to  move  for  a  new  trial,  although  printed 
in  the  transcript,  cannot  be  considered  as 
a  part  of  the  record,  unless  it  is  authen- 
ticated by  a  bill  of  exceptions.  Dennis  v. 
Gordon,  163  Cal.  427;  125  Pac.  1063.  Affi- 
davits used  upon  a  motion  for  a  new  trial 
are  no  part  of  the  record  upon  appeal, 
unless  they  are  incorporated  in  a  bill  of 
exceptions;  if  not  so  incorporated,  they 
cannot  be  considered.  Skinner  v.  Horn, 
144  Cal.  278;  77  Pac.  904. 

Authentication.  On  an  appeal  from  an 
order  denying  a  motion  for  a  new  trial 
of  the  contest  of  a  will  after  probate,  it  is 
not  essential  that  the  papers  constituting 
the  judgment  roll,  or  the  order  denying 
the  motion,  shall  be  authenticated  by  being 
embodied  in  a  bill  of  exceptions:  the 
clerk's  certificate  is  a  sufficient  authenti- 
cation. Estate  of  Kilborn,  162  Cal.  4;  120 
Pac.  762.  It  is  not  within  the  functions 
of  the  clerk  of  the  court  to  certify  or  de- 
termine what  papers  were  used  on  the 
hearing  of  the  motion  for  a  new  trial,  and 
his  certificate  is  of  no  effect.  Melde  v. 
Eeynolds,   120   Cal.   234;    52  Pac.  491.     A 

§  953.  Copies  and  undertakings,  how  certified.  The  copies  provided  for 
in  the  last  three  sections  must  be  certified  to  be  correct  by  the  clerlv  or  the 
attorneys,  and  must  be  accompanied  with  a  certificate  of  the  clerk  or  attor- 
neys that  an  undertaking  on  appeal,  in  due  form,  has  been  properly  filed, 
or  a  stipulation  of  the  parties  waiving  an  undertaking. 

new  trial.  Melde  v.  Eeynolds,  120  Cal.  234; 
52  Pac.  491.  The  certification  by  the  clerk 
to  the  correctness  of  the  transcript  must 
be  accompanied  by  his  certificate  that  an 
undertaking  on  appeal,  in  due  form,  has 
been  properly  filed.  San  Francisco  etc. 
E.  E.  Co.  V.  Anderson,  77  Cal.  297;  19  Pac. 
517. 

Sufficiency  of  certificate  to  transcript. 
On  appeal  from  an  order  denying  a  new 
trial,  such  order  is  sufficiently  authenti- 
cated by  a  certificate  attached  to  the  tran- 
script, reciting  that  a  true  and  correct 
copy  of  the  order  is  therein  contained. 
Mendocino  County  v.  Peters,  2  Cal.  App. 
24;  82  Pac.  1122. 

Effect  of  absence  of  certificate.  A  tran- 
script, not  certified  by  the  clerk  of  the 
court,  nor  by  the  attorneys  in  the  case, 
as  provided  in  this  section,  cannot  be  con- 
sidered on  appeal.  Ellis  v.  Bennet,  2  Cal. 
Unrep.  302;  3  Pac.  801.  Appellant's  affi- 
davit as  to  the  correctness  of  the  tran- 
script of  the  record  cannot  bo  substituted 
for  a  certificate  to  the  transcript:  if  such 


certificate  that  the  record  contains  com- 
plete copies  of  the  records  and  documents 
on  file,  and,  among  others,  of  the  last  bill 
of  exceptions,  including  the  order  refusing 
a  new  trial,  is  sufficient  to  make  such  or- 
der a  part  of  the  record,  where  a  second 
bill  of  exceptions  recites  the  hearing  of 
the  motion,  and  states  that  the  court,  hav- 
ing heard  the  argument  of  counsel,  and 
being  fully  advised,  orders  that  such 
motion  be  denied.  Hagman  v.  Williams, 
88  Cal.  146;  25  Pac.  1111.  The  record  on 
appeal  from  an  order  denying  a  motion 
for  a  new  trial  sufficiently  shows  that  the 
order  was  made,  when  a  copy  of  the  min- 
ute order  to  that  effect  is  contained  in 
the  transcript,  properly  certified  in  the 
clerk's  certificate  attached  thereto.  Wor- 
ley  V.  Spreckels  Bros.  Commercial  Co.,  163 
Cal.  60;  124  Pac.  697. 

Time  for  filing  transcript.  Where  a 
motion  for  a  new  trial  has  been  made,  the 
time  for  filing  the  transcript  on  appeal 
from  the  judgment  begins  to  run  from  the 
date  of  the  entry  of  the  order  disposing 
of  the  motion  for  a  new  trial,  so  as  to 
give  an  immediate  right  of  appeal  there- 
from. Bell  V.  Staacke,  148  Cal.  404;  83 
Pac.  245. 

Use  of  papers  on  appeals  from  orders, 
except  orders  granting  or  refusing  new 
trials.    See  note  ante,  §  951. 

CODE  COMMISSIONERS'  NOTE.  See  note  to 
§  650,    ante. 


Legislation  g  953.  1.  Enacted  March  11.  1872 ; 
based  on  Practice  Act,  §  346,  as  amended  by  Stats. 
1863-64,  p.   247.     See  ante.  Legislation  §  950. 

3.  Amended  by  Code  Amdts.  1873-74.  p.  339, 
(1)  inserting  "or  attorneys"  after  "certificate  of 
the  clerk,"  and  (2)  inserting,  at  end  of  section, 
"or  a  stipulation  of  the  parties  waiving  an  under- 
taking." 

Powers  and  duties  of  clerk.  Whether 
certain  documents,  when  certified,  will  con- 
stitute a  sufficient  transcript  on  appeal, 
is  a  question  which  the  clerk  of  the  court 
cannot  determine:  it  is  his  duty  to  certify 
to  the  correctness  of  the  documents  in  the 
transcript,  if  they  are  correct  copies  of  the 
originals  in  his  custody,  and  transmit  them 
to  the  appellate  court;  and  if,  on  payment 
of  his  lawful  fees,  he  refuses  so  to  do, 
an  order  compelling  him  will  be  granted 
on  motion.  People  v.  Center,  54  Cal.  236. 
The  authority  of  the  clerk,  under  this 
section,  is  limited  to  certifying  to  the 
correctness  of  the  copies  of  the  papers 
designated  in  the  preceding  sections  as 
forming  the  record  on  appeal:  he  is  not 
authorized  to  certify  what  papers  were 
used  on  the  hearing  of  the  motion   for  a 


1085 


CERTIFICATIOX   OF   PAPERS — MOTION  TO  DISMISS. 


§953 


certificate  is  absent,  the  ajipcal  must  be 
dismissed.  Snipsic  Co.  v.  Riverside  Music 
Co.,  6  Cal.  App.  115;  91  Pac.  747.  Where 
the  clerk's  certificate  to  tlie  trauscrijit  says 
nothing;  as  to  any  bill  of  exceptions,  a 
purported  bill  of  exceptions,  inserted  in  the 
transcript,  cannot  be  considered.  Pereira 
V.  City  SaviufTs  Bank,  128  Cal.  45;  60  Pac. 
524. 

Effect  of  stipulation  as  to  correctness  of 
transcript.  A  stipulation  as  to  the  cor- 
rectness of  the  transcript  merely  obviates 
the  necessity  of  the  certificate  by  the 
clerk,  and  does  not  estop  the  respondent 
from  denying  the  sufficiency  of  the  state- 
ment. Leonard  v.  Shaw,  114  Cal.  69;  45 
liac.  1012. 

Sufficiency  of  certificate  as  to  undertak- 
ing. It  must  appear  from  the  clerk's  cer- 
tificate that  an  undertaking  on  ai)peal,  in 
due  form,  has  been  filed  in  time.  Pacific 
Mutual  Life  Ins.  Co.  v.  E.lgar,  132  Cal. 
197;  64  Pac.  260.  A  certificate  of  the 
clerk,  "that  a  sufficient  undertaking  on 
appeal,  in  due  form  of  law,  was  properly 
filed  therein,"  is  a  sufficient  compliance 
with  this  section.  Meeker  v.  Hoffer,  57 
Cal.  140.  A  certificate  of  the  clerk,  that 
"a  good  and  sufficient  undertaking  on  ap- 
peal was  properly  filed  herein,"  conforms 
with  the  requirements  of  this  section,  and 
is  prima  facie  sufficient.  Downing  v.  Rade- 
maeher,  136  Cal.  673;  69  Pac.  415.  In  the 
absence  of  any  certificate  by  the  clerk 
that  the  undertaking  on  appeal  is  in  due 
form,  or  of  any  copy  of  the  undertaking 
certified  by  him,  it  will  be  assumed,  on 
appeal,  that  the  instrument  on  file  is  not 
in  due  form.  Winder  v.  Hendrick,  54  Cal. 
275.  A  certificate  that  the  transcript  is 
correct  cannot  be  construed  as  certifying 
that  the  undertaking  on  appeal  is  in  due 
form  and  has  been  properly  filed,  though 
the  undertaking  is  set  out  in  the  tran- 
script, and  appears  to  be  in  proper  form. 
San  Francisco  etc.  R.  R.  Co.  v.  Anderson, 
77  Cal.  297;  19  Pac.  517;  Jones  v.  Iverson, 
3  Cal.  Unrep.  707;  31  Pac.  625;  Shay  v. 
Chicago  Clock  Co.,  Ill  Cal.  549;  44  Pac. 
237.  A  certificate  of  the  clerk,  "that  an 
undertaking  on  appeal  was  properly  filed 
in  my  office,"  giving  the  datp.  is  insuffi- 
cient, in  failing  to  recite  that  the  under- 
taking was  in  due  form;  the  expression 
"properly  filed"  is  not  the  equivalent  of 
nor  was  it  intended  to  include  the  words 
"in  due  form."  Winder  v.  Hendrick,  54 
Cal.  275.  The  insertion,  in  the  transcript, 
of  a  copy  of  the  undertaking  on  appeal, 
with  its  indorsements,  certified  by  the 
county  clerk  to  be  correct,  does  not  sat- 
isfy the  express  requirement  of  this  sec- 
tion, that  the  clerk  or  the  attorneys  must 
certify  that  an  undertaking  in  due  form 
has  been  properly  filed.  Swasey  v.  Adair, 
83  Cal.  136;  23  Pac.  284.  Where  the  tran- 
script does  not  contain  a  copy  of  the  un- 


dertaking on  api)eal,  and  the  certificate 
of  the  clerk,  so  far  as  it  relates  to  such 
undertaking,  does  not  conform  to  this 
section,  the  appeal  will  be  dismissed. 
Watson  V.  Cornell,  52  Cal.  644.  .V  certifi- 
cate of  the  clerk,  "that  an  undertaking 
in  due  form  of  law  is  on  file  in  my  ofBce," 
is  insufficient  to  show  that  an  undertaking 
on  api)eal  was  filed,  or  that  it  was  prop- 
erly fileil,  or  that  it  was  filed  in  time. 
I'acific  Mutual  Life  Ins.  Co.  v.  Edgar,  132 
Cal.  197;  64  Pac.  260.  A  certificate  of  the 
(derk,  "that  a  good  and  sufficient  under- 
taking on  apjieal,  in  due  form  of  law,  has 
been  executed,  and  is  now  on  file,  in  said 
action,  in  my  office,"  is  not  sufficient,  un- 
der this  section,  so  far  as  it  relates  to  the 
undertaking  on  appeal.  Watson  v.  Cornell, 
52  Cal.  644. 

Conclusiveness  of  certificate.  The  cer- 
tificate of  the  clerk,  that  an  undertaking 
on  appeal,  in  due  form,  has  been  properly 
filed,  is  not  conclusive;  and  the  appellate 
court  may  determine  whether  the  under- 
taking is  sufl3cieut  to  confer  jurisdiction. 
Duncan  v.  Times-Mirror  Co.,  109  Cal.  602; 
42  Pac.  147. 

Amended  certificate.  An  amended  cer- 
tificate, that  an  undertaking  on  appeal,  in 
due  form,  has  been  properly  filed,  may  be 
allowed  to  be  filed,  under  the  rules  of 
the  supreme  court.  Swasey  v.  Adair,  83 
Cal.  136;  23  Pac.  284. 

Motion  to  dismiss,  papers  not  furnished 
until  hearing.  Where,  upon  a  motion  to 
dismiss  the  appeal,  the  respondent  filed  a 
certificate  of  the  clerk,  showing  that  an 
undertaking  on  appeal,  in  due  form,  had 
been  filed,  which  was  not  objected  to  for 
insuflSciency,  the  appeal  will  not  be  dis- 
missed, though,  at  the  time  the  motion  was 
made,  no  such  certificate  was  on  file.  Shay 
V.  Chicago  Clock  Co.,  Ill  Cal.  549;  44  Pac. 
237;  and  see  Warren  v.  Hopkins,  110  Cal. 
506;  42  Pac.  986.  An  appeal  will  not  be 
dismissed  on  account  of  an  informal  cer- 
tificate to  the  transcript,  where,  at  the 
hearing  of  the  motion,  the  appellant  fur- 
nishes a  proper  certificate,  and  he  will  be 
allowed  to  add  such  certificate  to  the 
record.  Hellings  v.  Duval,  119  Cal.  199; 
51  Pac.  335.  A  motion  to  dismiss  an 
appeal,  because  the  transcript  filed  and 
served  was  not  authenticated,  will  be  de- 
nied, where,  at  the  hearing  of  the  motion, 
the  appellant  presented  another  copy,  prop- 
erly authenticated,  and  asks  leave  to  file 
the  same.  Swortfiguer  v.  White,  137  Cal. 
391;  70  Pac.  214. 

Certification  of  appeal  papers.  See  also 
notes  ante,  §§  950,  951,  952. 

CODE  COMMISSIONEKS'  NOTE.  A  stipula- 
tion by  thi'  attorneys,  that  the  transcript  is  cor- 
rect, but  takes  the  p!ace  of  the  clerk's  certificate 
that  the  papers  are  correct.  Todd  v.  Winants,  36 
Cal.  129.  See  also  Godchau.x  v.  Mulford,  26  Cal. 
319;  85  Am.  Dec.  178;  St.  John  v.  Kidd,  26  Cal. 
265. 


§  953a  APPEALS  IN  GENERAL.  1086 

§  953a.     Preparation  of  papers  on  appeal.     Notice  to  county  clerk.     Any 

person  desiring  to  appeal  from  any  judgment,  order  or  decree  of  the  supe- 
rior court  to  the  supreme  court  or  any  of  the  district  courts  of  appeal,  may, 
in  lieu  of  preparing  and  settling  a  bill  of  exceptions  pursuant  to  the  provis- 
ions of  section  six  hundred  fifty  of  this  code,  or  for  the  purpose  of  present- 
ing a  record  on  appeal  from  any  appealable  judgment  or  order,  or  for 
the  purpose  of  having  reviewed,  any  matter  or  order  reviewable  on  appeal 
from  final  judgment,  file  with  the  clerk  of  the  court  from  w^hose  judgment, 
order  or  decree  said  appeal  is  taken,  or  to  be  taken,  a  notice  stating  that  he 
desires  or  intends  to  appeal,  or  has  appealed  therefrom,  and  requesting  that 
a  transcript  of  the  testimony  offered  or  taken,  evidence  offered  or  received, 
and  all  rulings,  instructions,  acts  or  statements  of  the  court,  also  all  objec- 
tions or  exceptions  of  counsel,  and  all  matters  to  which  the  same  relate,  be 
made  up  and  prepared.  Said  notice  must  be  filed  within  ten  days  after 
notice  of  entry  of  the  judgment,  order  or  decree,  or  if  a  proceeding  on 
motion  for  new  trial  be  pending,  within  ten  days  after  notice  of  decision 
denying  said  motion,  or  of  other  termination  thereof. 

Upon  receiving  said  notice,  it  shall  be  the  duty  of  the  court  to  require  the 
stenographic  reporter  thereof  to  transcribe  fully  and  completely  the  phono- 
graphic report  of  the  trial.  The  stenographic  reporter  shall,  wnthin  twenty 
days  after  said  notice  has  been  filed  with  the  clerk,  prepare  a  transcript  of 
the  phonographic  report  of  the  trial  including  therein  copies  of  all  writings 
offered  or  received  in  evidence  and  all  other  matters  and  things  required  by 
the  notice  above  referred  to  to  be  therein  contained,  and  shall  file  the  same 
with  the  clerk  of  said  court  upon  [court.  Upon]  the  same  being  filed ;[,]  it 
shall  be  the  duty  of  the  clerk  forthwith  to  give  the  attorneys  appearing  in 
said  cause  notice  that  said  transcript  has  been  filed,  and  that  within  five 
days  after  the  receipt  of  said  notice  the  same  will  be  presented  to  the  judge 
for  approval.  At  the  time  specified  in  the  notice  of  the  clerk  to  the  attor- 
neys said  transcript  shall  be  presented  to  the  judge  for  his  approval,  and 
the  judge  shall  examine  the  same  and  see  that  the  same  is  a  full,  true  and 
fair  transcript  of  the  proceedings  had  at  the  trial,  the  testimony  offered 
or  taken,  evidence  offered  or  received,  instructions,  acts  or  statements  of 
the  court,  also  all  objections  and  exceptions  of  counsel  and  matters  to 
which  the  same  relate.  The  judge  shall  thereupon  certify  to  the  truth  and 
correctness  of  said  transcript  and  the  same  shall,  when  so  settled  and  allowed, 
be  and  become  a  portion  of  the  judgment  roll  and  may  be  considered  on  appeal 
in  lieu  of  the  bill  of  exceptions  now  provided  for  by  law. 

If  the  judgment,  order  or  decree  appealed  from  be  not  included  in  a 
judgment  roll,  the  party  desiring  to  appeal  shall  on  the  filing  of  said  notice 
specify  therein  such  of  the  pleadings,  papers,  records  and  files  in  said  cause 
as  he  desires  to  have  incorporated  in  said  transcript  in  addition  to  the  mat- 
ters hereinbefore  required  and  the  same  shall  be  included. 

The  respondents  on  said  appeal  may  at  the  time  said  transcript  is  pre- 
sented for  settlement  and  allowance,  require  the  insertion  therein  of  such 
other  papers,  files,  documents,  records  and  proceedings  of  said  cause  as 
they  then  desire  to  have  incorporated  therein,  and  the  said  papers,  files, 
documents,  records  and  proceedings  shall  when  so  incorporated  be  deemed 
fully  authentic  for  use  on  said  appeal.  The  parties  may  by  stipulation  omit 
any  matters  from  said  record  which  they  desire  to  so  omit. 


10S7 


NOTICES — DUTY  OP  CLERK  AND  REPORTER — TRANSCRIPT. 


§953a 


Legislation  g  953a.  1.  Addpd  bv  Stats.  1907, 
p.  750  (l.iiscd  on  §§  549-554,  licllinger  and  Cot- 
ton's Oi(';;()ii  Ann.  Codes  and  Slats.);  the  codo 
commissionor  sayinti  of  this  section  and  of 
§§  95:ilj  and  953o,  "Tliose  tliree  seitions  pro- 
vide for  a  new  and  alternative  nielliod  for  tlio 
preparation  of  records  to  be  u.sed  on  appeals 
from  judgments,  orders  or  decrees  of  the  su- 
perior court  to  the  supreme  court  or  district 
courts  of  appeal." 

2.  Amended  by  Stats.  1915,  p.  206,  (1)  in 
first  sentence,  adding  "or  for  the  purpose  of  pre- 
senting a  record  on  appeal  from  any  appealable 
judgment  or  order,  or  for  the  purpose  of  having 
reviewed  any  matter  or  order  reviewaltle  on  ap- 
peal from  final  judgment";  (2)  in  second  sen- 
tence, adding  the  clause  beginning  "or  if  a  pro- 
ceeding" ;  (3)  in  second  paragraph,  connecting 
the  beginning  of  the  third  sentence  with  the  end 
of  the  second  (an  evident  misconception  of  the 
meaning  of  the  text  on  the  part  of  the  printer)  ; 
the  former  punctuation  is  bracketed  in  the  text 
(which  see). 

Construction  of  sections.  This  section 
merely  provides  a  substitute  for  a  bill  of 
exceptions:  a  notice,  though  strictly  in  com- 
pliance therewith,  cannot  serve  as  a  valid 
notice  of  appeal.  Boling  v.  Alton,  162  Cal. 
297;  12  Pac.  461.  The  purpose  of  §§  953a, 
953b,  953c,  is  to  provide  a  method  for  pre- 
paring the  record  or  transcript  to  be  filed 
on  appeal;  none  of  the  proceedings  pre- 
scribed are  jurisdictional.  Smith  v.  Jac- 
card,  20  Cal.  App.  280;  128  Pac.  1026.  The 
rules  of  decision  are  not  changed  under  the 
alternative  method  of  appeal.  United  In- 
vestment Co.  V.  Los  Angeles  etc.  Ry.  Co., 
10  Cal.  App.  175;  101  Pac.  543.  The  alter- 
native for  loss  of  right  to  appeal  is  to  file  a 
printed  transcript  within  forty  days,  unless 
the  time  is  extended  or  the  appellate  court 
excuses  the  failure  so  to  file.  Kstate  of 
Keating,  158  Cal.  109;  110  Pac.  109.  The 
acts  of  1907  enacting  §§  941a,  941b,  941c, 
and  §§  953a,  953b,  953c,  are  entirely  inde- 
pendent of  each  other.  Lang  v.  Tilley  & 
Thurston  Co.,  161  Cal.  295;  119  Pac.  100. 

Constitutionality  of  sections.  The  alter- 
nati\t'  method  of  appeal  is  constitutional. 
Estate  of  McPhee,  154  Cal.  385;  97  Pac. 
878. 

Method  of  appeal.  To  perfect  an  appeal 
from  an  order,  either  the  old  or  the  new 
method  must  be  followed;  otherwise  there 
is  no  record  upon  which  the  court  can  re- 
view the  order.  Hibernia  Sav.  &  L.  Soc.  v. 
Boran,  161  Cal.  118;  118  Pac.  526;  and  see 
Credit  Clearance  Bureau  v.  Weary,  18  Cal. 
App.  467;  123  Pac.  54,8. 

Notice  of  entry  of  judgment.  The  appel- 
lant has  ten  days  after  notice  of  entry  of 
judgment  within  which  to  demand  a  tran- 
script of  the  evidence.  Shaw  v.  Blasevich, 
21  Cal.  App.  498;  132  Pac.  278.  Actual  no- 
tice of  entrv  waives  written  notice  thereof. 
Estate  of  Keating,  158  Cal.  109;  110  Pac. 
109.  Whether  notice  of  entry  was  given, 
is  a  question  of  fact.  Hecker  v.  Baker,  19 
Cal.  App.  667;   127  Pac.  654. 

Notice  of  appeal.  An  appellant  who  de- 
sires to  disjiense  with  a  bill  of  exceptions 
must  file  with  the  clerk  a  notice  stating  his 


desire  or  intention  to  appeal,  or  that  ho 
has  apfieaicd,  and  request  an  authenti- 
cateil  transcript.  Dvcr  Law  etc.  Co.  v. 
Salisbury,  17  Cal.  App.  395;  119  Pac.  947. 
To  aj>peal  under  this  section,  it  is  neces- 
sary to  file  with  the  clerk  a  request  for  a 
transcript.  Thomjjson  v.  American  Fruit 
Co.,  21  Cal.  App.  338;  131  Pac.  878.  The 
evidence  must  be  certified  by  the  judge; 
neither  the  certificate  of  the  clerk  nor  tho 
stipulation  of  counsel  can  take  the  place 
of  the  judge's  certificate.  Pouchau  v. 
Godeau,  21  Cal.  App.  365;  131  Pac.  879. 
An  appellant,  in  order  to  avail  himself 
of  the  alternative  method  of  appeal,  must 
present  a  transcript  consisting  of  copies 
of  the  "moving  papers,  the  evidence  taken 
upon  the  hearing  of  the  motion,  and  the 
rulings  of  the  court  thereon,  certified  by 
the  trial  judge:  the  clerk  cannot  certify 
this  record.  Thompson  v.  American  Fruit 
Co.,  21  Cal.  App.  338;  131  Pac.  178.  It  is 
not  necessary  to  serve  a  notice  of  appeal, 
but  it  must  be  filed  within  the  time  re- 
quired. Watson  V.  Dinglcv,  14  Cal.  App. 
88;  111  Pac.  106. 

Duty  of  clerk.  The  clerk  should  not 
send  up  original  files  of  papers,  in  lieu  of 
a  transcript,  to  be  certified  by  the  judge 
and  filed  upon  the  appeal  (Waterburv  v. 
Temescal  Water  Co.,  11  Cal.  App.  632;"  105 
Pac.  940);  otherwise  the  clerk  is  not  re- 
quired to  prepare,  authenticate,  and  send 
up  the  judgment  roll,  without  which  there 
is  no  record.  Dyer  Law  etc.  Co.  v.  Salis- 
bury, 17  Cal.  App.  373;  119  Pac.  947. 

Duty  of  reporter.  It  is  the  duty  of  the 
stenographic  reporter  to  make  a  transcript 
of  the  report  of  the  trial  within  twenty 
days  after  the  notice  of  appeal  has  been 
given,  and  to  file  such  transcript  with  the 
clerk:  he  cannot  refuse  so  to  file  it  until 
his  fees  arc  paid.  Gjurieh  v.  Fieg,  160  Cal. 
331;  116  Pac.  745. 

Contents  of  judgment  roll.  Since  the 
amendment  to  §  670,  ante,  in  1907,  bills  of 
exceptions  are  no  longer  made  a  part  of 
the  judgment  roll;  and  where  an  appeal 
is  taken  under  §  941b,  ante,  without  ser- 
vice of  the  notice  of  appeal,  the  proper 
record  upon  appeal,  under  this  section,  is 
a  transcript  to  be  certified  by  the  judge 
in  lieu  of  a  bill  of  exceptions,  which  be- 
comes a  part  of  the  judgment  roll.  Water- 
burv v.  Temescal  Water  Co.,  11  Cal.  App. 
632";  105  Pac.  940. 

Requirements  as  to  transcript.  Except 
where  the  transcript  has  been  settled  and 
allowed  by  the  trial  court,  the  appellant 
cannot  be  relieved  from  printing  his  tran- 
script on  appeal.  Waterbury  v.  Temescal 
Water  Co.,  11  Cal.  App.  032;  105  Pac.  940. 
Under  this  section,  no  printed  transcript 
of  the  record  is  required.  Williams  v. 
Hawkins,  20  Cal.  App.  161;  128  Pac.  754. 
An  appeal  taken  under  this  section,  and 
§§  953b.  953c,  post,  cannot  be  dismissed 
for   a   failure   to   file   a  printed   transcript 


§953b 


APPEALS   IN   GENERAL. 


1088 


within  forty  days,  in  the  absence  of  any 
rule  of  court  relative  to  the  time  in  which 
a  transcript  must  be  filed  under  the  new 
method  of  appeal.  Estate  of  Keating,  158 
Cal.  109;  110  Pac.  109.  It  is  the  duty  of 
appellant,  as  the  moving  party,  to  exer- 
cise diligence  to  secure  the  filing  of  his 
transcript.  Smith  v.  Jaccard,  20  Cal.  App. 
280;  128  Pac.  1026.  An  appeal  must  be 
dismissed,  where  the  transcript  has  not 
been  filed  in  time,  without  valid  excuse 
for  such  neglect.  Modoc  Co-operative  Ass'n 
V.  Porter,  11  Cal.  App.  270;  104  Pac.  710. 
The  record  of  an  appeal  taken  under 
the  alternative  method  may  be  reviewed, 
though  it  does  not  show  a  service  of  the 
notice  of  appeal,  nor  that  an  undertaking 
to  pay  the  cost  of  the  transcript  was 
given,  nor  that  there  was  any  notice  and 
request  for  a  transcript,  where  the  tran- 
script was  written  out  in  longhand  by 
the  appellant,  and  was  properly  certified 
and  authenticated  by  the  judge,  and  is 
before  the  appellate  court.  Carr  v.  Stern, 
17  Cal.  App.  397;  120  Pac.  35.  Neither  in 
the  statute  nor  in  the  rules  of  the  court 
is  any  penalty  prescribed  for  the  failure 
of  the  reporter  to  file  a  transcript  of  the 
proceedings  within  twenty  days:  this  pro- 
vision is  merely  directory,  and  failure  to 
file  such  transcript  within  the  time  allowed 
is  not  jurisdictional.  Smith  v,  Jaccard,  20 
Cal.  App.  280;  128  Pac.  1026.  Where  the 
appellant  would  have  the  testimony  con- 
sidered, as  well  as  the  judgment  roll,  he 
must  have  a  statement  or  a  bill  of  excep- 
tions settled  and  certified,  or  have  a 
transcript  approved  as  provided  in  this 
section.  Lane  v.  Tanner,  156  Cal.  135;  103 
Pac.  846. 

Necessity  for  authentication  of  record. 
To  perfect  an  appeal,  the  appellant  must 
follow  either  the  old  or  the  new  method; 
in  either  case,  the  record  must  be  exam- 
ined and  authenticated  by  the  trial  judge, 


who  knows  what  papers  were  used  on  the 
hearing:  it  is  not  for  the  clerk  to  deter- 
mine what  papers  or  evidence  the  court 
acted  upon.  Credit  Clearance  Bureau  v. 
Weary  &  Alford  Co.,  18  Cal.  App.  467; 
123  Pac.  548.  The  appellate  court  will 
not  review  an  order  ujion  a  record  not 
properly  authenticated.  Knox  v.  Schrag, 
18  Cal.  App.  220;  122  Pac.  969. 

Judge  should  certify  what  papers.  The 
new  method  of  preparing  records  on  ap- 
peal does  not  require  nor  authorize  the 
judge  to  certify  to  the  correctness  of  any 
papers,  except  such  as  form  p?rt  of  a 
transcript  designed  to  take  the  place  of  a 
bill  of  exceptions.  Knoch  v.  Haizlip,  163 
Cal.  20;  124  Pac.  997.  In  lieu  of  a  bill  of 
exceptions,  the  court  must  certify  the 
stenographic  notes  of  the  trial,  containing 
the  proceedings  and  evidence,  which  would 
form  no  part  of  the  record  unless  authen- 
ticated as  the  statute  provides:  he  ,is  not 
required  to  certify  the  pleadings  and 
orders  constituting  the  judgment  roll. 
Christenson  Lumber  Co.  v.  Seawell,  157 
Cal.  405;  108  Pac.  276.  On  appeal,  the 
phonographic  report  of  the  proceedings  of 
the  trial  must  be  settled  and  allowed  by 
the  judge  as  being  correct:  a  certificate 
by  the  reporter  is  not  a  proper  authentica- 
tion. Williams  v.  Lane,  158  Cal.  39;  109 
Pac.  873. 

Review  of  certification.  If  the  respond- 
ent wishes  to  have  the  certification  by  the 
judge  reviewed,  he  should  present  the 
matter  to  the  appellate  court  upon  a  bill 
of  exceptions.  Hecker  v.  Baker,  19  Cal. 
App.  667;  127  Pac.  654. 

Appellant  must  call  attention  to  evi- 
dence. The  appellant  must,  in  his  brief, 
direct  attention  to  the  evidence  in  sup- 
port of  his  point.  Wills  v.  Woolner,  21 
Cal.  App.  528;  132  Pac.  283. 

Perfecting  appeal  under  the  old  method. 
See  note  ante,  §  940. 


§  953b.  Payment  of  cost  of  transcript.  At  the  time  the  said  notice 
provided  for  in  the  last  section  is  filed  with  the  clerk  of  the  court,  the  appel- 
lant, or  person  intending  to  appeal,  shall  file  an  undertaking  in  an  amount 
to  be  fixed  by  the  clerk,  with  two  good  and  sufficient  sureties,  by  which  the 
party  giving  said  notice  shall  undertake  and  agree  to  pay  the  clerk  the 
cost  of  preparing  said  transcript,  or  may  arrange  personally  with  the  steno- 
graphic reporter  for  his  compensation. 

ell  v.  California  etc.  S.  S.  Co.,  154  Cal. 
731;  99  Pac.  202. 

Liability  on  undertaking.  The  appellant 
is  liable  on  his  undertaking  for  the  re- 
porter's fees,  upon  the  final  approval  of 
the  transcript  by  the  judge;  if  the  appel- 
lant does  not  pay  them,  his  sureties  are 
liable.  Gjurich  v.  Fieg,  160  Cal.  331;  116 
Pac.  745. 

Duty  to  make  and  file  transcript  of  re- 
port of  trial.    See  note  ante,  §  9.j.Ta. 

Certification  of  papers  by  judge.  See 
note  ante,  §  953a. 


Legislation  §  953b.  1.  Added  by  Stats.  1907, 
p.   751.      See  ante,  Legislation  §  953a. 

2.  Amended  by  Stats.  1915,  p.  207,  adding, 
at  end,  the  clause  beginning  "or  may  arrange." 

Construction  of  section.  See  note  ante, 
§  953a. 

Review  without  undertaking.  The  fail- 
ure to  file  an  undertaking  to  pay  the  cost 
of  the  transcript  does  not  preclude  a  re- 
view of  the  appeal;  no  cost  bond  is  re- 
quired. See  note  §  940,  ante;  Carr  v.  Stern, 
17  Cal.  App.  397;  120  Pac.  35;  Estate  of 
McPhee,  154  Cal.  385;  97  Pac.  878;  Mitch- 


1089 


TRANSCRIPT — BRIEFS — DISMISSAL   OF    APPEAL. 


§§  953c,  034 


§  953c.  Clerk  to  transmit  the  prepared  record  on  appeal.  Where,  on 
appeals  taken  i'roni  jiidmiit'iits.  oi-ilcrs  oi-  ileci-ces  of  the  superior  court  to 
the  supi-eme  court  or  district  courts  of  appeal  the  appellant  elects  to  avail 
himself  of  the  provisions  of  the  three  preceding  sections,  it  shall  be  the 
duty  of  the  clerk  of  the  court  from  which  the  appeal  is  taken,  within  ten 
days  after  the  prei)aration  of  the  record,  to  transmit  to  the  clerk  of  the 
court  to  which  the  appeal  is  taken,  the  record  prepared  in  accordance  with 
the  provisions  of  the  two  preceding  sections.  Said  record  shall  be  filed 
with  the  clerk  of  the  court  to  which  the  appeal  is  taken  and  no  transcript 
thereof  need  be  printed.  In  filing  briefs  on  said  appeal  the  parties  must, 
however,  print  in  their  briefs,  or  in  a  supplement  appended  thereto,  such 
portions  of  the  record  as  they  desire  to  call  to  the  attention  of  the  court. 

Williams   v.   Hawkins,   20   Cal.   App.    161; 

128  Pac.  754.     Where  the  attorney  for  the 


Legislation  S  953c.  Added  by  Stats.  1907, 
p.  751;  based  on  §§  549-554.  BellinKer  and  Tot- 
ton's  Ann.  Codes  and  Stats.  See  ante,  Legislation 
§  953a. 

Construction  of  section.    See  note  ante, 

Transcripts,     tyiJewritten     or     printed. 

The  papers  which,  under  the  old  mothod  of 
appeal,  would  not  properly  be  a  part  of 
the  bill  of  exceptions,  are  to  be  certified 
by  the  clerk  or  the  attorneys,  as  provided 
by  §  953,  ante;  with  respect  to  these 
papers,  the  main  effect  of  the  new  method 
of  appeal  seems  to  be  to  permit  the  use  of 
typewritten  instead  of  printed  copies. 
Knoch  V.  Haizlip,  163  Cal.  20;  124  Pac. 
997.  Typewritten  transcripts  are  author- 
ized. Lang  V.  Lilley  &  Thurston  Co.,  161 
Cal.  295;  119  Pac.  100.  It  is  not  only 
allowable  under  this  section,  but  desirable, 
that  a  printed  and  duly  authenticated 
copy  of  the  transcript  shall  be  filed  .in  the 
appellate  court,  in  lieu  of  the  original. 
Sevmour  v.  Oelrichs,  162  Cal.  318;  122  Pac. 
847. 

Requirements  as  to  briefs.  Where  type- 
written transcripts  are  filed  under  the  new 
method  of  preparing  records  on  appeal, 
prescribed  by  this  section  and  the  next 
two  preceding  sections,  the  law  requires 
the  respective  parties  to  print  in  their 
briefs,  or  in  a  supplement  thereto,  such 
parts  of  the  record  as  they  wish  to  call 
to  the  attention  of  the  court  (Estate  of 
McPhee,  156  Cal.  335;  104  Pac.  455;  Eous- 
sin  V.  Kirkpatrick,  8  Cal.  App.  7;  95  Pac. 
1123);  and  when  so  printed,  the  brief  be- 
comes part  of  the  record  upon  appeal. 
San  Joaquin  etc.  Irrigation  Co.  v.  Stevin- 
Bon,    16    Cal.    App.    235;      116    Pac.    378; 


ai>iiellant  wholly  fails  to  do  this,  the  suffi- 
ciency of  the  evidence  to  support  a  finding 
will  not  be  reviewed  upon  appeal.  Wil- 
liams V.  Hawkins,  20  Cal.  App.  161;  128 
Pac.  754.  It  is  not  enough  for  the  parties 
simply  to  refer  in  their  briefs  to  the  pages 
of  the  written  transcript.  Roussin  v. 
Kirkpatrick,  8  Cal.  App.  7;  95  Pac.  1123. 
Where  a  defendant  j)hysician's  want  of 
care  and  skill,  in  a  negligence  case,  is  re- 
lied on,  it  will  be  assumed  that  there  was 
no  evidence  of  such  want  of  care  or  skill, 
when  counsel  for  the  appellant  omits  to 
print  in  his  brief  any  part  of  the  testi- 
mony on  that  subject,  or  to  refer  to  any 
part  of  the  record  where  it  is  contained. 
Marcucci  v.  Vowinckel,  164  Cal.  693;  130 
Pac.  430.  The  court  will  not  incontinently 
refuse  to  consider  an  appeal,  though  the 
appellant's  brief  does  not  comply  strictly 
with  the  mandates  of  this  section,  where 
it  would  not  be  just  to  the  appellant  to 
dismiss  his  appeal.  San  .loaquin  etc.  Irri- 
gation Co.  V.  Stevinson,  16  Cal.  App.  235; 
116  Pac.  378.  The  rule  requiring  points 
and  authorities  to  be  filed,  confers  rights 
that  may  be  enforced  by  litigants.  Barn- 
hart  V.  Conley,  17  Cal.  App.  230;  119 
Pac.  200.  The  appellant  must,  in  his  brief, 
direct  attention  to  the  evidence  in  sup- 
port of  his  point.  Wills  v.  Woolner,  21 
Cal.  App.  528;  132  Pac.  283. 

Certification  of  papers  by  judge.  See 
note  ante,  §  953a. 

Disposition  of  appeal  where,  without  fault  of 
appellant,  record  is  lost  or  incomplete.  See  note 
25  L.  K.  A.   (N.  S.)   860. 


§954.  When  an  appeal  may  be  dismissed.  When  not.  If  the  appel- 
lant fails  to  furnish  the  requisite  papers,  the  appeal  may  be  dismissed ;  but 
no  appeal  can  be  dismissed  for  insufficiency  of  the  undertaking,  if  a  good 
and  sufficient  undertaking,  approved  by  a  justice  of  the  supreme  court  be 
filed  in  the  supreme  court,  or  (where  the  appeal  is  pending  before  a  dis- 
trict court  of  appeal  either  by  direct  appeal  thereto  or  by  transfer  thereto 
by  the  supreme  court,  if  a  good  and  sufficient  undertaking,  approved  by  a 

1  Fair. — 69 


954 


APPEALS  IN  GENERAL. 


1090 


justice  of  said  district  court  of  appeal,  be  filed  in  said  district  court,  before 
the  hearing  upon  motion  to  dismiss  the  appeal.  When  it  is  made  to  appear 
to  the  satisfaction  of  the  court  or  a  judge  thereof,  from  which  the  appeal 
was  taken,  that  a  surety  or  sureties  upon  an  appeal  bond  from  any  cause 
has  or  have  become  insufficient,  and  the  bond  or  undertaking  inadequate  as 
security  for  the  payment  of  the  judgment  appealed  from,  or  that  the  bond 
has  been  lost  or  destroyed,  the  last-named  court,  or  a  judge  thereof,  may 
order  the  giving  of  a  new  bond  with  sufficient  sureties,  as  a  condition  to 
the  maintenance  of  the  appeal.  The  said  bond  or  undertaking  shall  be  ap- 
proved by  the  last-named  court,  or  a  judge  thereof;  and  in  case  said  sure- 
ties fail  to  justify  before  said  last-named  court,  or  a  judge  thereof,  or  fail 
to  comply  with  the  order  to  appear  and  justify,  execution  may  issue  upon 
the  judgment  as  if  no  undertaking  to  stay  execution  had  been  given. 

Legislation  §  954.    1.  Enacted  March  11.  1873;       sidered,  where   the   transcript  upon  record 


based  on  Practice  Act,  §  346,  as  amended  by  Stats. 
1863-64,  p.  247.  See  ante,  Legislation  §  950. 
When  enacted  in  1872,  §  954  read:  "If  the  ap- 
pellant fails  to  furnish  the  requisite  papers,  the 
appeal  may  be  dismissed;  but  no  appeal  can  be 
dismissed  for  insufficiency  of  the  undertaking 
thereon,  if  a  good  and  sufficient  undertaking,  ap- 
proved by  a  justice  of  the  supreme  court,  be  filed 
in  the  supreme  court  before  the  hearing  upon 
motion   to   dismiss   the   appeal." 

2.  Amended  by  Stats.  1895,  p.  59,  to  read  as 
at  present,  except  for  the  amendments  of  1906 
and   1907. 

3.  Amended  by  Stats.  1906,  p.  52,  inserting 
"or  that   the  bond   has   been    lost   or   destroyed." 

4.  Amended  by  Stats.  1907,  p.  579.  (1)  omit- 
ting "thereon"  after  "insufficiency  of  the  under- 
taking," and  (2)  inserting,  after  "filed  in  the 
supreme  court,"  the  words  "or  (where  the  ap- 
peal is  pending  before  a  district  court  of  appeal 
either  by  direct  appeal  thereto  or  by  transfer 
thereto  by  the  supreme  court)  if  a  good  and  suffi- 
cient undertaking,  approved  by  a  .iustice  of  said 
district  court  of  appeal,  be  filed  in  said  district 
court";  the  code  commissioner  saying  of  the 
amendments,  "Amend  the  section  so  as  to  extend 
the  power  with  respect  to  the  acceptance  of 
bonds  to  district  courts  of  appeal." 

Construction  of  section.  This  section  is 
remedial,  and  should  receive  a  liberal  in- 
terpretation. Pacific  Paving  Co.  v.  Verso, 
11  Cal.  App.  383;  10.5  Pac.  136.  This  sec- 
tion necessarily  implies  that  there  may  be 
an  undertaking  which  is  insufficient,  and 
that  this  insufficiency  may  be  remedied 
by  a  new  undertaking:  when  the  original 
undertaking  is  itself  sufficient,  there  is 
no  room  for  the  application  of  the  sec- 
tion. Bay  City  Building  etc.  Ass'n  v. 
Broad,  128  Cal.  670;  61  Pac.  368.  An  ap- 
peal taken  under  §§  941a,  941b,  ante,  will 
not  be  dismissed,  where  it  is  taken  within 
six  months  from  the  entry  of  judgment. 
Larson  v.  Larson,  15  Cal.  App.  531;  115 
Pac.  340. 

Contents  of  notice  of  motion  to  dismiss. 
Good  practice  requires  that  the  grounds 
for  a  dismissal  of  an  appeal  shall  be  em- 
bodied in  the  notice  of  motion.  Newman 
V.  Maldonado,  3  Cal.  Unrep.  540;  30  Pac. 
833.  A  clerical  error  in  the  notice  of 
motion  to  dismiss  an  appeal  does  not  in- 
validate it,  nor  prevent  a  dismissal,  if 
otherwiso  proper.  Pacific  Paving  Co.  v. 
Bolton,  89  Cal.  154;  26  Pac.  650.  A  mo- 
tion to   dismiss  an  appeal  cannot  be  con- 


contains  a  notice  of  two  appeals,  and  the 
sufficiency  of  each  does  not  depend  upon 
the  same  considerations,  and  it  is  uncer- 
tain to  which  appeal  the  notice  of  the 
motion  is  directed.  De  la  Cuesta  v.  Cal- 
kins, 5  Cal.  Unrep.  163;  41  Pac.  1098. 

Service  of  notice.  The  service  of  a 
motion  to  dismiss  an  appeal  on  the  execu- 
trix of  an  executor  is  not  sufficient  to 
bring  parties  before  the  court,  where  it  is 
not  shown  that  such  executrix  has  been 
substituted  for  the  executor.  Chevassus  v. 
Burr,  134  Cal.  434;  66  Pac.  568.  The  bur- 
den is  upon  a  respondent,  who  moves  to 
dismiss  an  appeal  for  want  of  service  of 
notice  of  appeal  upon  an  adverse  party,  to 
show  from  the  record  that  the  party  not 
served  was  adverse  in  interest.  Niles  v. 
Gonzalez,  152  Cal.  90;  92  Pac.  74;  Potrero 
Nuevo  Land  Co.  v.  All  Persons,  155  Cal. 
371;  101  Pac.  12. 

Waiver  of  right  to  move  to  dismiss. 
The  right  to  move  for  a  dismissal  of  the 
appeal  is  not  waived  by  stipulating  to  the 
correctness  of  the  bill  of  exceptions,  or  of 
the  transcript  on  appeal.  San  Bernardino 
Countv  V.  Eiverside  County,  135  Cal.  618; 
67  Pac.  1047. 

Answer  to  motion.  Good  cause  for  fail- 
ure to  comply  with  a  rule  requiring  the 
printed  transcript  to  be  filed  within  the 
time  provided,  is  always  a  sufficient  an- 
swer to  a  motion  to  dismiss  the  appeal, 
based  on  the  ground  of  such  failure.  Eob- 
inson  v.  Robinson,  158  Cal.  117;  110  Pac. 
112. 

Matters  not  considered  on  motion  to  dis- 
miss. Where  the  motion  to  dismiss  an 
appeal  involves  an  examination  of  the 
entire  record,  and  incidentally  a  consid- 
eration of  the  merits  of  the  appeal,  it 
will  be  continued  until  the  hearing  upon 
the  merits.  Leonis  v.  Leffingwell,  6  Cal. 
Unrep.  219;  55  Pac.  897.  An  appeal  from 
a  judgment  will  not  be  dismissed,  on  mo- 
tion, in  advance  of  a  hearing  on  the 
merits,  where  the  determination  of  a  ques- 
tion involved  necessitates  an  examination 
of  the  record.    Quist  v.  Michael,  153  CaU' 


1091 


MOTION  TO  DISMISS — WHAT  CONSIDERED FUTILE  APPEAL. 


§954 


365;  95  Pac.  65S.  In  exceptional  cases, 
a  motion  to  dismiss,  which  involves  an 
examination  of  the  record,  Avill  be  enter- 
tained in  advance  of  the  heariiiy;  upon  the 
merits.  Ilibernia  Sav.  &  L.  iSoc  v.  Dorau, 
161  Cal.  118;  118  Pac.  526.  Where  a  mo- 
tion to  dismiss  an  appeal,  on  the  ground 
of  the  absence  of  a  bill  of  exceptions,  has 
been  denied  for  the  reason  that  such  ab- 
sence is  not  ground  for  dismissing  an 
appeal,  but  rather  for  a  judgment  of  allirm- 
ance,  if  there  is  no  error  in  the  record, 
a  motion  to  affirm  the  judgment,  made 
before  the  regular  hearing  of  the  appeal 
in  its  order  upon  the  calendar,  upon  the 
grounds  that  the  appeal  is  without  merit, 
and  merely  for  delay,  and  that  the  appeal 
is  from  a  judgment  directed  upon  a  former 
appeal,  and  is  a  contempt  of  court,  will 
be  denied,  it  appearing  that  counsel  on 
each  side  have  filed  briefs  upon  the  ques- 
tion whether  the  judgment  was  properly 
entered,  and  that  its  decision  involves  the 
examination  of  the  record  ujion  both  ap- 
peals. Eandall  v.  Duff,  105  Cal.  271;  38 
Pac.  739.  An  appeal  from  an  order  deny- 
ing a  new  trial  will  not  be  dismissed  for 
any  defect  in  the  proceedings  in  the  su- 
perior court  leading  up  to  the  order:  this 
would  involve  an  examination  of  the  ac- 
tion of  the  court  below,  which  can  be 
properly  had  only  on  the  hearing  of  the 
appeal.  Estate  of  Scott,  124  Cal.  671;  57 
Pac.  654.  An  appeal  from  an  order  deny- 
ing a  motion  for  a  new  trial  will  not  be 
dismissed,  on  motion,  and  the  court  will 
not  look  into  the  record  to  determine  the 
merits,  in  advance  of  a  hearing  thereon. 
Quist  V.  Michael,  153  Gal.  365;  95  Pac. 
658.  Upon  a  motion  to  dismiss  an  appeal, 
the  supreme  court  will  not  consider  any 
question  which  involves  an  examination 
of  the  record,  and  the  determination  of  the 
correctness  of  the  action  of  the  lower  court 
upon  the  facts  presented  to  it  (Estate  of 
Kasson,  135  Cal.  1;  66  Pac.  871;  Hibernia 
Sav.  &  L.  Soc.  V.  Cochran,  6  Cal.  Unrep. 
821;  66  Pac.  732),  or  the  failure  to  give 
an  undertaking  upon  an  appeal  from  an 
order,  which  failure  was  not  made  one 
of  the  grounds  of  the  motion  to  dismiss 
the  appeal  (Pignaz  v.  Burnett,  119  Cal. 
157;  51  Pac.  48),  or  any  error  in  settling 
the  statement  on  motion  for  a  new  trial 
(Estate  of  Scott,  124  Cal.  671;  57  Pac. 
654),  or  the  question  whether  other  par- 
ties should  have  been  made  parties  to  a 
motion  for  a  new  trial  (Watson  v.  Sutro, 
77  Cal.  609;  20  Pac.  88;  .Johnson  v.  Phenix 
Ins.  Co.,  146  Cal.  571;  80  Pac.  719),  or  mat- 
ters occurring  prior  to  the  order  appealed 
from.  Bell  v.  Staacke,  137  Cal.  307;  70 
Pac.  171.  The  appellate  court  should  not 
be  called  upon,  originally,  to  determine, 
upon  a  motion  to  dismiss  an  apj)eal, 
whether  the  ayipcllant  was  guilty  of  laches 
in  presenting  his  proposed  statement  and 
amendments   to    the    clerk   for   the   judge. 


Curtin  v.  Ingle,  155  Cal.  53;  99  Pac.  480. 
A  bill  of  exce])tion8  cannot  be  looked 
into,  upon  a  motion  to  dismiss  the  appeal, 
for  tlie  purjiose  of  determining  the  merits 
of  the  ruling  of  the  court:  but  it  must  be 
assumed  that  the  excej>tion  was  taken  in 
good  faith.  Melde  v.  Reynolds,  120  Cal. 
234;  52  Pac.  491.  The  merits  of  an  ap- 
peal cannot  be  considered  on  a  motion 
to  dismiss.  Swasey  v.  Adair,  83  Cal.  136; 
23  Pac.  284;  Steen  v.  Santa  Clara  Valley 
etc.  Lumber  Co.,  145  Cal.  564;  79  Pac.  171. 
Where  a  decree  of  foreclosure  directs  that 
the  assignee  in  insolvency  of  the  mort- 
gagor shall  be  paid  any  balance  remain- 
ing after  the  payment  of  the  amount 
found  due  and  expenses  upon  the  sale  of 
the  mortgaged  premises,  the  question  as 
to  whether  or  not  such  decree  was  valid 
and  binding,  in  so  far  as  it  directed  the 
payment  of  such  balance,  cannot  be  con- 
sidered upon  a  motion  to  dismiss  an  ap- 
peal from  the  order.  Vincent  v.  Collins, 
122  Cal.  387;  55  Pac.  129. 

Dismissal  of  premature  appeal.  Where 
an  oriler  is  made  appointing  a  guardian 
for  an  incompetent,  an  api)oal,  taken  sub- 
sequently to  the  filing  of  the  order,  but 
prior  to  its  entry  at  large  in  the  minutes 
of  the  court,  is  premature,  and  must  be 
dismissed.  Estate  of  Dunphy,  158  Cal.  1; 
109  Pac.  627. 

Of  frivolous  appeal.  An  appeal  will  not 
be  dismissed  on  the  ground  that  it  is  frivo- 
lous, or  is  taken  merely  for  delay  (Nevills 
V.  Shortridge,  129  Cal.  575;  62  Pac.  120), 
or  because  of  its  want  of  merit.  People  v. 
Perris  Irrigation  Dist.,  6  Cal.  Unrep.  349; 
58  Pac.  907. 

Of  futile  appeal.  W" here  the  appeal  is 
ineffective  and  futile,  it  will  be  dismissed. 
Suisun  Lumber  Co.  v.  Fairfield  School  Dis- 
trict, 19  Cal.  App.  587;  127  Pac.  349.  An 
appeal  from  a  judgment  on  an  election  con- 
test will  be  dismissed,  when  neither  the 
appellant  nor  the  public  can  have  any  in- 
terest in  the  result  of  the  appeal.  Broad- 
bent  V.  Keith,  17  Cal.  App.  3S9;  119  Pac. 
939.  After  the  affirmance  of  a  judgment 
in  favor  of  the  plaintiff  for  the  condemna- 
tion of  land,  an  appeal  by  the  defendant 
from  an  order,  made  after  the  judgment 
was  entere<l,  authorizing  the  plaintiff  to 
take  i)ossessiou  of  the  land,  pendente  lite, 
will  be  dismissed:  the  affirmance  of  the 
judgment  renders  the  order  functus  olficiOj 
and  the  questions  presented  become  en- 
tirely moot.  Mendocino  County  v.  Peters, 
2  Cal.  App.  34;  82  Pac.  1124.  Where  the 
judgment  appealed  from  has  been  satisfied, 
and  the  questions  presented  have  become 
merely  a  moot  case,  the  appeal  will  be  dis- 
missed. Moore  v.  Morrison,  130  Cal.  80; 
62  Pac.  268.  'An  appeal  from  an  order 
directing  the  abatement  of  a  nuisance,  and 
allowing  costs  to  the  plaintiff,  will  not  be 
dismissed,  where  the  defendant  has  abated 
the  nuisance,  but  has  not  paid  the  costs. 


§954 


APPEALS   IN   GENERAL. 


1092 


White  V.  Gaffney,  1  Cal.  App.  715;  82  Pae. 
1088.  Where  the  appeal  from  an  order 
granting  a  new  trial  was  affirmed,  the 
appeal  from  the  judgment  will  be  dis- 
missed: the  affirmance  of  the  order  has  the 
effect  to  set  aside  the  judgment.  Black- 
burn V.  Abila,  4  Cal.  Unrep.  982;  39  Pac. 
797.  An  appeal  which  raises  only  an  ab- 
stract question  will  be  dismissed.  Foster 
V.  Smith,  115  Cal.  611;  47  Pac.  591.  An 
appeal  by  a  defendant  from  a  judgment 
against  her  in  divorce  proceedings  must 
be  dismissed,  where,  prior  to  such  appeal, 
the  lower  court,  on  her  application,  made 
an  order  setting  aside  such  judgment. 
Storke  v.  Storke,  111  Cal.  514;  44  Pac. 
173.  A  motion  to  dismiss  an  appeal  on 
the  ground  that  a  reversal  of  an  order  dis- 
solving a  temporary  injunction  would  have 
no  legal  effect,  will  not  be  granted,  where 
such  effect  does  not  clearlv  appear.  Fox 
V.  Grayson,  6  Cal.  Unrep.  72";  53  Pac.  932. 

Dismissal  where  reversal  would  prove 
fruitless.    See  note  post,  §  957. 

Of  unauthorized  appeal.  Where  the  ap- 
pellant has  taken  a  valid  appeal  in  the 
first  instance,  a  second  appeal  is  unauthor- 
ized, and  will  be  dismissed.  People  v. 
Bank  of  San  Luis  Obispo,  152  Cal.  261; 
92  Pac.  481.  An  appeal  from  a  non-appeal- 
able order  must  be  dismissed  (Forrester  v. 
Lawler,  14  Cal.  App.  170;  111  Pac.  284; 
Hadsall  v.  Case,  15  Cal.  App.  541;  115  Pac. 
330);  but  not  where  there  is  also  an  appeal 
from  the  judgment,  upon  which  the  orders 
appealed  from  may  be  reviewed.  Wadleigh 
v.  Phelps,  147  Cal.  135;  81  Pac.  418. 

Dismissal  for  want  of  or  for  defect  in 
notice  of  appeal.  An  appeal  will  be  dis- 
missed, where  notice  of  appeal  was  not 
given  (Lent  v.  California  Fruit  Growers' 
Ass'n,  161  CaL  719;  121  Pac.  1002),  or  was 
not  filed  within  the  prescribed  time  (Ben- 
nett v.  Potter,  16  Cal.  App.  185;  116  Pac. 
681),  or  was  not  properly  served.  Estate 
of  Peudergast,  143  Cal.  135;  76  Pac.  962. 
An  appeal  from  an  order  denying  a  motion 
for  a  new  trial  will  not  be  dismissed  be- 
cause of  a  failure  to  serve  the  notice  of 
appeal  on  a  party  who  had  not  been  made 
a  party  to  the  motion.  Johnson  v.  Phenix 
Ins.  Co.,  152  Cal.  196;  92  Pac.  182.  Where 
an  appeal  can  be  decided  by  giving  to 
the  parties  thereto  such  relief  as  the  rec- 
ord warrants,  it  will  not  be  dismissed, 
though  the  notice  of  appeal  was  not  served 
on  an  alleged  necessary  party,  if  his  in- 
terests are  not  injuriously  affected  by  such 
decision.  Burnett  v.  Piercy,  149  Cal.  178; 
86  Pac.  603.  An  appeal  by  the  defendant 
will  not  be  dismissed,  where  the  notice  of 
appeal  gives  his  true  name,  though  the 
name  given  in  the  complaint  and  judgment 
is  a  misnomer.  Webster  v.  Board  of  Re- 
gents, 163  Cal.  705;  126  Pac.  974.  A  stipu- 
lation, that  "the  appeal  was  duly  per- 
fected," constitutes  an  appearance,  by  all 
of  th3  respondents  who  signed  the  stipu- 


lation, and  precludes  a  dismissal  thereof 
for  want  of  service  of  notice  upon  any  of 
them.  Burnett  v.  Piercy,  149  CaL  178';  86 
Pac.  603.  The  want  of  service  of  the  no- 
tice of  intention  to  move  for  a  new  trial 
is  not  a  ground  for  dismissing  an  appeal 
from  the  order  denving  a  new  trial.  Sutter 
County  V.  Tisdale^  128  Cal.  180;  60  Pac. 
757.  An  appeal  from  an  order  denying  a 
motion  for  a  new  trial  will  not  be  dis- 
missed for  want  of  service  of  notice  of 
appeal  upon  an  adverse  party,  where  the 
record  does  not  show  affirmatively  that 
the  party  not  served  was  an  adverse  party 
to  the  motion  in  the  court  below.  Niles 
V.  Gonzalez,  152  Cal.  90;  92  Pac.  74;  Po- 
trero  Nuevo  Land  Co.  v.  All  Persons,  155 
Cal.  371;  101  Pac.  12.  The  dismissal  of 
an  appeal  from  an  order  denying  a  motion 
for  a  new  trial,  on  the  ground  that  the 
notice  of  motion  to  move  for  a  new  trial 
was  not  served  and  filed  within  the  time 
allowed  by  law,  is  not  justified  where  the 
time  was  properly  extended.  Estate  of 
Eichards,  154  Cal.  478;  98  Pae.  528. 

Dismissal  of  appeal  for  defects  in  notice 
of  appeaL    See  also  note  ante,  §  940. 

For  want  of  prosecution.  An  appeal 
will  be  dismissed  for  unwarrantable  laches 
and  delay  of  the  appellant,  justifying  the 
conclusion  that  the  appeal  has  been  aban- 
doned. Estate  V.  Johnston,  14  Cal.  App. 
376;  112  Pac.  191.  Where  an  appeal  from 
a  judgment  refusing  to  annul  the  marriage 
of  the  plaintiff  with  the  defendant  was 
taken  too  late,  it  must  be  dismissed;  and 
an  objection  to  the  allowance  of  alimony 
to  the  defendant  cannot  be  considered. 
Hunter  v.  Hunter,  111  Cal.  261;  52  Am. 
St.  Eep.  180;  31  L.  R.  A.  411;  43  Pac.  756. 
Where  a  party  has  lost  his  right  of  appeal 
under  §§  953a,  953b,  and  953c,  ante,  and 
sustains  no  right  to  file  a  printed  tran- 
script under  the  old  method  of  appeal,  the 
appeal  must  be  dismissed.  Estate  of  Keat- 
ing, 158  CaL  109;  110  Pac.  109.  Where 
the  transcript  on  appeal  from  the  judg- 
ment is  not  filed  within  forty  days  from 
the  date  of  the  entry  of  the  order  dispos- 
ing of  the  motion  for  a  new  trial,  the 
appeal  from  the  judgment  must  be  dis- 
missed. Bell  V.  Staacke,  148  Gal.  404;  83 
Pac.  245;  Gervais  v.  Joyce,  15  Cal.  App. 
189;  114  Pac.  409;  Erving  v.  Napa  Valley 
Brewing  Co.,  16  Cal.  App.  41;  116  Pac. 
331;  Smith  v.  Jaccard,  20  Cal.  App.  280; 
128  Pac.  1026.  The  court  may  dismiss  an 
appeal  for  delay  in  filing  the  transcript, 
but  such  dismissal  will  be  for  want  of  dili- 
gence in  prosecuting  the  appeal,  and  not 
for  lack  of  jurisdiction  of  the  appeal. 
Smith  V.  Jaccard,  20  CaL  App.  280;  128 
Pac.  1026.  When  there  is  an  unexcused 
failure  to  file  the  transcript  on  appeal 
within  the  time  prescribed  by  the  rule  of 
the  court,  and  the  time  has  passed  for  pre- 
paring and  serving  a  bill  of  exceptions  or 
statement,   and   none   has   been   served   or 


1093 


DISMISSAL — WANT  OF  PROSECUTION,   OF  JIKISDICTION,   ETC. 


§'J54 


offered  for  settlement,  the  ai>peal  will  be 
dismissed.  Smith  v.  Solomou,  84  Cal.  537; 
24  Pac.  2S6.  An  ajipeal  taken  under 
§§  9.5.'5a,  9o3b,  and  953f',  ante,  cannot  bo 
dismissed  for  a  failure  to  file  a  transcript 
within  forty  days,  in  the  absence  of  any 
rule  i)rescribing  the  time  when  a  transcript 
prepared  under  those  sections  shall  be  filed. 
Estate  of  Keating,  LIS  Cal.  109;  110  Pac. 
109.  A  failure  to  file  the  transcript  within 
the  time  limited  by  law,  owing  to  the  re- 
porter's failure  to  file  a  transcript  of  the 
report  of  the  trial  with  the  clerk,  does  not 
warrant  the  dismissal  of  an  appeal  taken 
under  §§  953a  and  9;j3b,  ante.  Gjurich  v. 
Fieg,  160  Cal.  331;  116  Pac.  74.5.  After 
default  b}'  the  appellant,  the  subsequent 
filing  of  points  and  authorities  by  him  does 
not  affect  the  respondent's  right  to  a  <lis- 
missal.  Barnhart  v.  Conley,  17  Cal.  App. 
230;  119  Pac.  200.  While  the  appellate 
court  has  power  to  dismiss  an  appeal  for 
the  appellant's  failure  to  proceed  with 
proper  diligence  to  procure  the  settlement 
of  a  statement,  yet  the  proper  practice  is 
to  require  the  respondent  to  avail  himself 
of  such  objection  in  the  lower  court  when 
the  proceeding  for  the  settlement  of  the 
statement  is  pending.  Curtin  v.  Ingle,  155 
Cal.  53;  99  Pac.  4S0. 

For  want  of  averments  or  evidence  in 
lower  court.  An  appeal  from  the  refusal 
of  the  court  to  render  judgment  on  matters 
which  are  neither  supported  by  the  aver- 
ments nor  by  evidence,  will  be  dismissed. 
Bank  of  Visalia  v.  Curtis,  131  Cal.  178;  63 
Pac.  344. 

For  want  Oi  jurisdiction.  An  appeal 
will  be  dismissed,  where  the  appellate 
court  has  no  jurisdiction.  Pedlar  v.  Stroud, 
116  Cal.  461;  48  Pac.  371;  Continental 
Building  etc.  Ass'n  v.  Beaver,  6  Cal.  App. 
116;  91  Pac.  666;  Hanke  v.  McLaughlin, 
20  Cal.  App.  204;  128  Pac.  772.  An  ap- 
peal from  an  order  denying  a  new  trial 
in  an  action  for  divorce,  in  which  no 
money  question  is  involved,  abates  upon 
the  death  of  the  appellant,  and  the  appel- 
late court  is  deprived  of  all  authority  to 
review  the  action  of  the  superior  court, 
and  the  appeal  must  be  dismissed.  Begbie 
V.  Begbie.  128  Cal.  154;  49  L.  E.  A.  141; 
60  Pac.  667.  A  failure  to  serve  an  adverse 
party  with  the  notice  of  intention  to  move 
for  a  new  trial  is  not  a  reason  for  the  dis- 
missal of  the  appeal  on  the  ground  that 
the  court  has  not  acquired  jurisdiction. 
Johnson  v.  Pheni.x  Ins.  Co.,  146  Cal.  571; 
80  Pac.  719.  Failure  to  serve  the  adverse 
party  with  notice  of  the  intention  to  move 
for  a  new  trial,  or  with  the  draft  of  a 
statement  of  the  case,  does  not  deprive  the 
appellate  court  of  jurisdiction  to  hear  the 
appeal,  nor  constitute  a  reason  for  its  dis- 
missal upon  the  ground  that  the  court  has 
no  jurisdiction  to  hear  it.  Estate  of  Kyer, 
no' Cal.  556;  42  Pac.  \ns2. 

For  want  of  requisite  papers.  The  pro- 
vision of  this  section,  that  if  the  appellant 


fails  to  furnish  the  requisite  papers,  the 
ajipeal  may  be  dismissed,  is  to  be  con- 
strued in  connection  with  the  rules  of  the 
sufireme  court  as  to  the  correction  of  de- 
fects which  may  be  cured  upon  suggestion 
of  diminution  of  the  record,  an<l  not  as 
giving  to  the  respondent  the  absolute  right 
to  a  dismissal  of  the  api>eal  upon  the  mere 
showing  that  the  transcri[»t  filed  is  de- 
fective, but  as  authorizing  a  dismissal  of 
the  appeal  if  the  defen<lant  fails  to  fur- 
nish the  requisite  papers  after  the  <limi- 
nution  of  the  record  has  been  suggested. 
Woodside  v.  Hewel,  107  Cal.  141;  40  Pac. 
103.  An  appeal  may  be  dismissed,  where 
the  appellant  fails  to  furnish  the  requisite 
papers  (Bodley  v.  Ferguson,  25  Cal.  584), 
or  for  a  serious  nonconformity  of  the  tran- 
script to  the  rules  of  court.  Naylor  v. 
Adams,  15  Cal.  App.  548;  115  Pac.  335. 
A  motion  to  dismiss  an  a[)peal  for  a  fail- 
ure to  file  a  transcri])t  of  the  judgment 
roll  will  be  denied,  where,  before  the  hear- 
ing of  the  motion,  a  certified  transcript  of 
the  record  is  filed.  Poole  v.  Grand  Circle, 
17  Cal.  App.  229;  119  Pac.  201.  An  appeal 
from  a  judgment  will  not  be  dismissed, 
merely  because  some  part  of  the  judgment 
roll  is  omitted  from  the  transcri])t,  where 
it  does  not  appear  that  the  omitted  parts 
are  important:  an  omission,  if  deemed  im- 
portant, may  be  remedied  by  suggestion  of 
a  diminution  of  the  record.  Paige  v.  Reed- 
ing, 89  Cal.  69;  26  Pac.  787.  Where  the 
appellant  has,  in  evident  good  faith,  at- 
tempted to  comply  with  the  statute,  his 
appeal  from  the  judgment  will  not  be  dis- 
missed, where  there  is  doubt  and  uncer- 
tainty as  to  the  proper  procedure,  but  the 
court  will  allow  the  transcript  to  be  with- 
drawn for  a  proper  authentication,  within 
a  limited  time,  of  the  record.  Knoch  v. 
Haizlip,  163  Cal.  20;  124  Pac.  997.  An 
appeal  will  be  dismissed,  where  there  is 
no  properly  authenticated  record  on  appeal 
(Harrison  v.  Cousins,  16  Cal.  App.  516; 
117  Pac.  564;  Willow  Laud  Co.  v.  Gold- 
schmidt,  11  Cal.  App.  297;  104  Pac.  841; 
Muzzv  V.  D.  H.  McEwen  Lumber  Co.,  154 
Cal.  685;  98  Pac.  1062),  or  where  the 
record  is  insufllcient  (Dyer  Law  etc.  Co. 
V.  Salisbury,  17  Cal.  App.  393;  119  Pac. 
947),  or  where  no  judgment  was  entered 
(Granger  v.  Richards,  126  Cal.  635;  59  Pac. 
118),  or  for  a  failure  to  file  points  and 
authorities  within  the  time  prescribed  by 
a  rule  of  court.  Barnhart  v.  Conlev,  17 
Cal.  App.  230;  119  Pac.  200.  An  appeal 
from  an  order  of  the  superior  court  dis- 
missing an  appeal  from  a  justice's  court 
will  be  dismissed,  where  there  is  no  au- 
thenticated record,  by  bill  of  exceptions 
or  otherwise,  or  where  the  amount  in- 
volved is  less  than  three  hundred  dollars. 
Willow  Land  Co.  v.  Goldschmidt,  11  Cal. 
App.  297;  104  Pac.  841.  Where  the  judg- 
ment roll  embodied  in  the  transcript  fails 
to  show  that  any  judgment  has  been  given 
and  entered  in  the  action,  an  appeal,  pur- 


§954 


APPEALS   IN   GENERAL. 


1094 


porting  to  be  from  a  judgment  of  nonsuit, 
will  be  dismissed.  Granger  v.  Richards, 
126  Cal.  635,-  59  Pac.  118. 

For  want  of  undertaking.  An  appeal 
will  be  dismissed,  for  want  of  jurisdic- 
tion, where  the  undertaking  was  not  filed 
within  the  time  prescribed  by  §  940,  ante. 
Continental  Building  etc.  Ass'n  v.  Beaver, 
6Cal.  App.  116;  91  Pac.  666. 

For  insufficiency  of  undertaking.  Where 
the  appellate  court  has  jurisdiction  of  the 
case,  an  appeal  will  not  be  dismissed  be- 
cause the  undertaking  was  insufficient,  if 
a  new  undertaking  is  filed  in  the  appellate 
court.  Moyle  v.  Landers,  78  Cal.  99;  12 
Am.  St.  Eep.  22;  20  Pac.  241.  An  objec- 
tion to  the  sufficiency  of  sureties  in  an 
undertaking  on  appe:.!  does  not  entitle  the 
respondent  to  a  dismissal  of  the  appeal  if 
the  sureties  fail  to  justif}^  provided  the 
appellant  files  an  undertaking  in  the  su- 
preme court,  approved  by  one  of  the  jus- 
tices. Schacht  V.  Odell,  52  Cal.  447.  An  ^ 
undertaking  on  appeal  which  provides  that 
the  appellant  will  pay  all  damages  and 
costs  that  may  be  awarded  against  him 
on  the  appeal,  but  which  omits  the  phrase, 
"or  on  a  dismissal  thereof,"  is  not  a  totally 
defective  undertaking,  which  absolutely  re- 
quires the  dismissal  of  the  appeal,  but  is 
objectionable  only  for  insufficiency,  which 
may  be  remedied  by  the  filing  of  a  new 
undertaking  in  the  appellate  court.  Jar- 
man  v.  Eea,  129  Cal.  157;  61  Pac.  790. 
Where  the  new  undertaking,  as  well  as 
the  original,  contains  no  agreement  to  pay 
damages  and  costs  on  a  dismissal  of  the 
appeal,  it  is  insufficient,  and  the  appeal 
will  be  dismissed.  Estate  of  Fay,  126  Cal. 
457;  58  Pac.  936.  An  appeal  cannot  be 
dismissed  for  want  of  a  sufficient  under- 
taking, where  it  is  not  made  a  ground  of 
the  motion  of  a  respondent,  as  he  may 
have  waived  the  giving  of  the  undertak- 
ing. Clarke  v.  Mohr,  125  Cal.  540;  58  Pac. 
176.  A  single  undertaking  on  appeal  from 
the  judgment  and  the  order  denying  a  new 
trial,  must  refer  to  each  of  the  appeals, 
and  show  on  its  face  that  it  is  given  in 
consideration  of  both:  if  it  recites  but  one, 
the  other  appeal  will  be  dismissed.  Buch- 
ner  v.  Malloy,  152  Cal.  484;  92  Pac.  1029. 
Upon  a  motion  to  dismiss  an  appeal,  where 
there  is  a  single  undertaking  for  three  sepa- 
rate and  distinct  appeals,  the  fact  that  only 
one  of  the  orders  appealed  from  was  ap- 
pealable will  not  be  considered  so  as  to 
render  such  undertaking  the  undertaking 
on  the  appealable  order  onlv.  Estate  of 
Heydenfeldt,  119  Cal.  346;  "'51  Pac.  543. 
Where  an  undertaking  is  invalid  for  all 
purposes,  the  objections  cannot  be  obvi- 
ated by  the  filing  of  a  new  undertaking 
under  this  section.  Theisen  v.  Matthai, 
165  Cal.  249;  131  Pac.  747. 

Dismissal  of  appeal  for  defects  in  under- 
taking.   See  also  note  ante,  §  941. 

When  new  undertaking  may  be  filed.  It 
is  the  purxjose   of  this  section  to  allow  a 


sufficient  bond  to  be  given  to  supply  the 
defects  of  an  insufficient  bond.  Pacific 
Paving  Co.  v.  Verso,  11  Cal.  App.  383;  105 
Pac.  136.  It  is  contemplated  by  this  sec- 
tion, that  although  an  undertaking  has 
been  filed,  yet  it  may  be  of  such  a  charac- 
ter, or  in  such  a  form,  as  not  fully  to  in- 
demnify the  respondent  against  the  costs 
and  damages  which  he  may  sustain  by 
reason  of  the  appeal;  the  use  of  the  phrase, 
"insufficiency  of  the  undertaking,"  indi- 
cates a  distinction  between  an  undertak- 
ing which  does  not  fully  comply  with  all 
the  terms  of  §  941,  ante,  and  the  entire 
absence  of  an  undertaking;  and  an  under- 
taking may  be  filed  which  is  so  defective 
as  not  to  constitute  any  obligation  on  the 
sureties  therein,  and  which  is,  in  reality, 
no  undertaking  at  all;  in  such  a  case,  there 
is  more  than  mere  insufficiency, — there  is 
an  entire  want  of  indemnity  to  the  re- 
spondent,— and  this  section  does  not  apply. 
Jarman  v.  Eea,  129  Cal.  157;  61  Pac.  790. 
This  section  does  not  apply  where  the  un- 
dertaking given  is  void;  in  which  case  it 
is  as  though  no  undertaking  had  been  filed 
and  no  appeal  perfected  within  the  time 
allowed  by  law;  hence,  no  new  undertak- 
ing can  be  permitted  to  be  filed  in  the  ap- 
pellate court.  Estate  of  Heydenfeldt,  119 
Cal.  346;  51  Pac.  543;  and  see  Duffy  v. 
Greenbaum,  72  Cal.  157;  12  Pac.  74; 
Schurtz  V.  Eomer,  81  Cal.  244;  22  Pac. 
657;  McCormick  v.  Belvin,  96  Cal.  182;  31 
Pac.  16.  Where  the  undertaking  given  is 
void,  no  new  undertaking  can  be  filed  in 
the  appellate  court,  even  though  there 
was  an  undertaking  for  stay  of  execution. 
Duffy  v.  Greenebaum,  72  Cal.  157;  12  Pac. 
74;  and  see  Biagi  v.  Howes,  63  Cal.  384. 
An  undertaking  to  stay  execution  may  be 
filed  in  the  supreme  court,  after  an  appeal 
has  been  taken,  where  the  sureties  on  the 
former  undertaking  have  failed  to  justify 
(Tompkins  v.  Montgomery,  116  Cal.  120; 
47  Pac.  1006;  McClatchy  v.  Sperry,  6  Cal. 
Unrep.  345;  58  Pac.  529;  Nonpareil  Mfg. 
Co.  v.  McCartney,  143  Cal.  1;  76  Pac.  653); 
but  such  permission  will  not  be  granted 
without  a  showing  excusing  such  failure. 
Williams  v.  Borgwardt,  115  Cal.  617;  47 
Pac.  594.  The  tiling  of  a  new  undertak- 
ing in  the  supreme  court  is  limited  to  cases 
where  it  is  sought  to  remedy  a  defective 
undertaking:  no  amendment  of  an  under- 
taking can  be  allowed  where  there  is  no 
undertaking  to  amend.  Schurtz  v.  Eomer, 
81  Cal.  244;  22  Pac.  657;  Pacific  Pavinar  Co. 
V.  Bolton,  89  Cal.  154;  26  Pac.  650;  Wad- 
leigh  V.  Phelps,  147  Cal.  135;  81  Pac.  418. 
Where  the  undertaking  on  appeal  names 
the  court  and  the  department  thereof, 
gives  the  number  of  the  case,  and  accu- 
rately describes  the  judgment  and  the 
order  denying  a  new  trial,  a  mistake  in 
the  christian  name  of  the  plaintiff,  in  the 
title  of  the  ease,  is  within  this  section, 
and  a  new  undertaking,  approved  by  a 
justice  of  the  sui)reme  court,  is  authorized. 


1095 


DISMISSAL  FOR  DEFECTIVE   UNDERTAKING. 


§954 


Butler  V.  Ashworth,  100  Cal.  334;  34  Pac. 
780.  Where  the  recitals  in  an  undertak- 
ing fail  to  identify  the  appeal,  the  error  is 
incurable,  and  a  new  undertaking,  under 
this  section,  cannot  be  filed.  Little  v. 
Thatcher,  151  Cal.  558;  91  Pac.  321.  The 
neglect  of  one  of  the  sureties  to  sign  the 
undertaking  in  the  proper  place,  evidently 
through  a  mere  oversight,  renders  the  un- 
dertaking merely  insufficient;  and  a  new 
undertaking  on  appeal  may  be  filed.  Bay 
City  Building  etc.  Ass'n  v.  Broad,  128  Cal. 
670;  61  Pac.  368.  An  undertaking,  signed 
by  the  sureties  before  the  making  of  the 
order  denying  a  new  trial,  is  without  con- 
sideration, and  therefore  there  is  more 
than  insufficiency  in  such  undertaking,  and 
a  new  undertaking  cannot  be  filed  on  ap- 
peal. Stackpole  v.  Hermann,  126  Cal.  465; 
58  Pac.  935.  Where,  upon  two  appeals, 
one  from  an  order  dissolving  an  injunction 
and  the  other  from  the  judgment,  but  one 
undertaking  is  given,  reciting  both  ap- 
peals, and  specifying  a  joint  and  several 
obligation  in  the  sum  of  six  hundred  dol- 
lars for  the  two  appeals,  or  either  of 
them,  such  undertaking,  if  not  sufficient 
in  form,  affords  a  sufficient  basis  to  per- 
mit a  new  undertaking  to  be  filed  in  the 
supreme  court  for  each  appeal.  Spreckcls 
V.  Spreckels,  114  Cal.  60;  45  Pac.  1022. 
Appeals  taken  from  two  distinct  orders 
are  each  ineffectual,  and  will  be  dismissed, 
when  only  one  undertaking  on  appeal  is 
filed,  which  fails  to  designate  to  which  of 
the  appeals  it  was  intended  to  apply;  in 
such  case,  the  appellant  is  not  authorized, 
under  this  section,  to  file  new  undertak- 
ings. Home  and  Loan  Associates  v.  Wil- 
kins,  71  Cal.  626;  12  Pac.  799.  A  single 
undertaking  upon  three  orders,  separately 
and  independently  appealable,  and  none  of 
which  could  be  reviewed  upon  an  appeal 
from  the  others,  is,  in  legal  effect,  no  un- 
dertaking, and  the  defect  cannot  be  cured 
by  a  new  undertaking.  Wadleigh  v.  Phelps, 
147  Cal.  135;  81  Pac.  418.  An  undertak- 
ing on  appeal  from  an  order  denying  a 
new  trial,  filed  in  the  appellate  court,  is 
ineffectual,  where  no  undertaking  on  such 
appeal  was  filed  in  the  lower  court, 
although  the  undertaking  on  the  appeal 
from  the  judgment  was  filed,  but  contained 
no  reference  to  the  appeal  from  the  order 
denying  the  new  trial.  Schurtz  v.  Eomer, 
81  Cal.  244;  22  Pac.  657.  Unless  a  request 
is  made  for  leave  to  file  a  substituted  un- 
dertaking, appellant's  right  to  have  a 
proper  undertaking  approved,  as  provided 
by  law,  does  not  arise.  McAulay  v.  Tahoe 
Ice  Co..  3  Cal.  App.  642;  86  Pac.  912. 

New  undertaking  on  appeal  to  the  su- 
perior court.    Sec  note  jiost,  §  978. 

Result  of  failure  to  file.  The  failure  to 
file  a  good  and  sufficient  undertaking 
within  the  time  allowed  by  this  section, 
and  to  have  indorsed  thereon  the  approval 
of  a  justice  of  the  supreme  court,  in  place 


of  an  insufficient  and  irregular  undertak- 
ing, renders  the  appeal  ineffectual  (Wood 
V.  Peudola,  77  Cal.  82;  19  Pac.  183;  Dun- 
can v.  Times-Mirror  Co.,  109  Cal.  602;  42 
Pac.  147;  Jarman  v.  Rea,  129  Cal.  157;  61 
Pac.  790;  Zane  v.  De  Onativia.  135  Cal. 
440;  67  Pac.  685;  and  see  Estate  of  Wells, 
148  Cal.  659;  84  Pac.  37);  and  the  supreme 
court  has  no  discretion  to  permit  a  new 
undertaking  to  be  filed  after  the  hearing 
on  such  motion.  Duncan  v,  Times-Mirror 
Co.,  109  Cal.  602;  42  Pac.  147;  Zane  v. 
Do  Onativia,  135  Cal.  440;  67  Pac.  685. 

Effect  of  approval  of  new  undertaking. 
An  imperfection  in  the  recitals  of  an  un 
dertaking  on  appeal  from  an  order  denying 
a  motion  for  a  new  trial  may  be  reme- 
died by  filing,  in  the  supreme  court,  a  good 
and  sufficient  undertaking  containing  the 
proper  recital,  approved  by  a  justice  of 
that  court.  Buchner  v.  Malloy,  152  Cal. 
484;  92  Pac.  1029.  The  approval  of  an 
undertaking  substituted  for  one  held  in- 
sufficient, by  a  justice  of  the  supreme 
court,  amounts  not  only  to  a  determina- 
tion that  the  undertaking  is  such  in  form 
and  substance  as  the  statute  requires,  but 
also  of  its  sufficiency  as  to  the  sureties. 
Stevenson  v.  Steinberg,  32  Cal.  373. 

Justification  of  new  sureties.  The  appel- 
lant may  file  a  new  undertaking  in  the 
appellate  court,  but  the  respondent  cannot 
require  the  sureties  thereon  to  justify:  the 
justice  who  approves  the  bond  will  as- 
certain, by  examination  of  the  sureties, 
whether  they  possess  the  necessary  quali- 
fications. Stevenson  v.  Steinberg,  32  Cal. 
373.  The  provision  for  a  new  bond  when 
the  old  becomes  insufficient,  as  a  condi- 
tion for  the  maintenance  of  the  appeal, 
means,  merely,  that,  upon  the  failure  of 
the  new  sureties  to  justify,  execution  may 
issue  upon  the  judgment,  and  not  that  the 
api^eal  may  be  dismissed,  where  the  appel- 
lant had  perfected  his  appeal  by  giving 
the  ordinary  appeal  bond.  Mersfelder  v. 
Spring,  136  Cal.  619;  69  Pac.  251. 

For  disobedience  of  order  of  court.  The 
disobedience  of  an  appellant  to  an  order 
of  the  lower  court,  in  an  action  of  divorce, 
requiring  him  to  bring  a  child  into  this 
state,  whose  custody  was  awarded  to  the 
respondent  here,  but  to  the  appellant  by 
the  judgment  of  a  court  of  a  sister  state, 
is  not  a  legal  ground  for  dismissing  his 
appeal  from  the  judgment  and  from  an 
order  denving  a  new  trial.  Vosburg  v. 
Vosburg,  131  Cal.  628;  63  Pac.  1009. 

Dismissal,  where  appellant  has  no  attor- 
ney. An  appeal  cannot  be  dismissed  be- 
cause the  attorney  for  the  appellant  is  not 
an  attorney  of  record  in  the  case,  but  is  a 
member  of  a  firm  of  attorneys  who  ap- 
peared in  the  court  below  as  attorneys  of 
record.  Woodmen  of  the  World  v.  Rut- 
ledge,  133  Cal.  640;  65  Pac.  1105. 

Where  matter  settled  by  consent.  An 
ajipeal   from   a   consent  judgment   will   be 


§955 


APPEALS   IN    GENERAL. 


1096 


dismissed  (Hibernia  Sav.  &  L.  Soc.  v.  Way- 
mire,  152  Cal.  286;  92  Pac.  645;  Erlanger 
V.  Southern  Pacific  R.  R.  Co.,  109  Cal.  395; 
42  Pac.  31),  as  will  also  an  appeal,  where, 
during  the  pendency  thereof,  all  matters 
in  dispute  in  the  action  are  settled  by 
agreement  between  the  parties.  Nelson  v. 
Nelson,  153  Cal.  204;  94  Pac.  880;  Bank 
of  Martinez  v.  Jahn,  104  Cal.  238;  38  Pac. 
41.  The  resignation  of  the  guardian  of  a 
minor  operates  as  an  acquiescence  by  him 
in  a  previous  order  of  the  court,  annulling 
his  letters,  and  precludes  him  from  assign- 
ing any  error  in  such  order,  and  renders 
proper  an  order  dismissing  an  appeal,  upon 
the  ground  that  all  matters  involved  in  the 
appeal  were  disposed  of.  Guardianship  of 
Treadwell,  111  Cal.  189;  43  Pac.  584. 
Where  the  judgment  and  order  must  be 
affirmed  upon  the  record,  it  is  not  neces- 
sary to  pass  upon  a  motion  to  dismiss  the 
appeal  on  the  ground  that  the  controversy 
has  been  settled  out  of  court.  Erode  v. 
Gosslin,  16  Cal.  App.  632;  117  Pac.  778. 

Where  new  trial  granted.  An  appeal 
from  a  judgment  will  not  be  dismissed  be- 
cause a  new  trial  had  been  granted,  where 
the  order  granting  such  new  trial  has  been 
appealed  from.  Pierce  v.  Birkholm,  110 
Cal.  669;  43  Pac.  205. 

Refusal  to  dismiss  for  equitable  reasons. 
An  appeal  will  not  be  dismissed,  where  its 
dismissal  would  be  an  injustice.  San  Joa- 
quin etc.  Irrigation  Co.  v.  Stevinson,  16 
Cal.  App.  235;  116  Pac.  378. 

Affirmance  of  order  denying  improper 
motion.  An  appeal  from  an  order  deny- 
ing an  improper  motion  for  a  new  trial 
will  not  be  dismissed:  the  proper  course  is 
to  affirm  the  order.  Quist  v.  Sandman,  154 
Cal.  748;  99  Pac.  204. 

Dismissal  of  appeals.   See  note  ante,  §  939. 

§  955.  Effect  of  dismissal.  The  disn;jissal  of  an  appeal  is  in  effect  an 
affirmance  of  the  judgment  or  order  appealed  from,  unless  the  dismissal  is 
expressly  made  without  prejudice  to  another  appeal. 


When  proper  practice  not  to  dismiss 
appeal,  but  to  affirm  judgment.  See  note 
post.  §  957. 

Dismissal    of    appeal    for    informalities. 

See  note  ante,  §  953. 
Dismissal  of  appeal  from  new-trial  order. 

See  note  post,  §  963. 

Effect  of  dismissal.    See  note  post,  §  955. 

Rehearing.  If  an  appeal  has  been  dis- 
missed, a  rehearing  will  be  denied,  where 
the  record  shows  that  the  dismissal  was 
proper;  and  a  petition  for  the  rehearing 
of  an  order  of  dismissal  of  an  appeal  will 
be  denied,  where  the  record  shows  that, 
although  the  order  involved  was  an  ap- 
pealable order,  no  appeal  was  taken  there- 
from. Sheehan  v.  Lapique,  15  Cal.  App. 
517;  115  Pac.  965. 

Justification  of  sureties.  The  authority 
given  by  the  amendment  of  1895  to  this 
section  is  confined  to  the  ordering  of  a 
new  bond  upon  appeals  from  money  judg- 
ments: that  amendment  does  not  provide 
for  a  further  or  second  justification  of  the 
sureties  upon  the  original  bond.  Bover  v. 
Superior  Court,  110  Cal.  401;  42  Pac.  892. 

Eight  of  appellant  to  dismiss  appeal.  See  notes 
2  Ann.   Cas.  794;    11   Ann.   Cas.  966. 

Requirement  or  permission  of  new  or  addi- 
tional appeal  or  supersedeas  bond  in  appellate 
court.  See  notes  10  Ann.  Cas.  804;  17  Ann. 
Cas.  378;   9  L.  R.  A.    (N.  S.)    1054. 

CODE    COMMISSIONERS'    NOTE.      1.   Effect 

of  dismissal.  Rowland  v.  KrevenhuKen,  "24  Cal. 
57:  Chamberlin  v.  Reed,  16  Cal.  207;  Karth  v. 
Light,  15  Cal.  324. 

2.  Without  prejudice.  Gordon  v.  Wansey,  19 
Cal.  82;  Dooling  v.  Moore,  19  Cal.  81;  but  see 
§  955  of  this  code. 

3.  Fraud  in  procuring  dismissal.  Rowland  v. 
Kreyenhagen,  24  Cal.  52. 

4.'  Generally.  People  v.  Goldbury,  10  Cal.  312; 
Noriega  v.  Knight,  20  Cal.  172:  Lvnc-h  v.  Dunn, 
34  Cal.  518;  Dobbins  v.  Dollarhide,  15  Cal.  374; 
People  V.  Comedo,  11  Cal.  70;  Ricketson  v. 
Torres,  23  Cal.  636. 


Legislation  §  955.     Enacted  March  11,  1873. 

Dismissal  of  appeal  affirms  judgment. 
The  dismissal  of  an  appeal  from  a  judg- 
ment operates  as  an  affirmance  of  the 
judgment  (Barnhart  v.  Edwards,  128  Cal. 
572;  61  Pac.  176);  as  does  also  the  dis- 
missal of  an  appeal  from  a  judgment  by 
consent  (Spaeth  v.  Ocean  Park  Realty  etc. 
Co.,  16  Cal.  App.  329;  116  Pac.  329);  but 
the  dismissal  of  an  appeal  from  a  judg- 
ment, as  prematurely  taken,  does  not  oper- 
ate as  an  affirmance  of  the  judgment.  Es- 
tate of  Kennedy,  129  Cal.  384;  62  Pac.  64. 
The  dismissal  of  an  appeal  on  the  merits 
is  a  bar  to  second  appeal:  it  is,  in  effect, 
an  affirmance  of  the  judgment.  Karth  v. 
Light,  15  Cal.  324. 

Void  judgment  not  affirmed.  The  dis- 
missal of  an  appeal  from  a  judgment  is 
an   affirmance  of  the  judgment,  only  in  a 


limited  sense:  if  the  judgment  is  void  on 
its  face,  the  dismissal  of  the  appeal  in 
no  wise  cures  such  vital  defect;  at  most, 
it  prevents  a  second  appeal,  and  relieves 
the  order  or  judgment  from  attack  for 
error  or  irregularity  which  could  be  taken 
advantage  of  upon  appeal.  Sullivan  v. 
Gage.  145  Cal.  759;  79  Pac.  537. 

Dismissal  as  bar  to  second  appeal.  The 
dismissal  of  an  appeal  for  want  of  prose- 
cution, unless  it  is  made  expressly  "with- 
out prejudice,"  or  where  it  is  on  the  merits, 
is  a  bar  to  another  appeal.  Estate  of  Rose, 
80  Cal.  166;  22  Pac.  86;  and  see  Karth  v. 
Light,  15  Cal.  324.  The  dismissal  of  an 
appeal  because  there  is  nothing  to  appeal 
from  does  not  preclude  another  apj^eal  in 
the  same  case,  when  a' record  shall  have 
been  made  up,  upon  which  an  appeal  can 
be  taken.  Estate  of  Rose,  80  Cal.  166;  22 
Pac.  86. 


1097 


DISMISSAL  WITHOUT   PREJUDICE — WHAT   MAY  BE  REVIEWED. 


§956 


Effect  of  dismissal  for  defects  in  papers. 
The  dismissal  of  an  ai)i>i'al  fur  a  teehiiiral 
defect  in  the  notice  of  appeal  or  in  the 
undertaking,  or  the  like,  is  not  a  bar  to 
a  second  appeal,  and  does  not  amount  to 
an  aflirmance  of  the  judgment.  Karth  v. 
Light,  15  Cal.  324. 

Of  dismissal  without  prejudice.  The  dis- 
missal of  an  appeal  from  a  judgment,  be- 
cause of  the  failure  of  the  appellant  to 
file  the  transcript  within  the  time  pre- 
scribed, is,  in  effect,  an  affirmance  of  the 
judgment,  if  the  order  of  dismissal  does 
not  exi>ressly  provitle  that  it  is  made  with- 
out prejudice  to  the  right  of  the  ajipellant 
to  take  another  ai)peal;  and  a  second  ap- 
peal from  the  same  judgment  will  be  dis- 
missed.   Garibaldi  v,  Garr,  97  Cal.  2.j3;  32 


Pac.  170.  The  dismissal  of  an  appeal  for 
failure  to  file  the  requisite  papers,  unless 
e.\i)ressly  made  without  prejudice,  is  a  bar 
to  another  ajij)eal.  Spinetti  v.  Brignar- 
dello,  54  Cal.  521. 

Of  dismissal  as  to  heirs  not  served.  In 
a  case  involving  the  right  of  succession 
by  non-resident  heirs,  where,  as  to  the 
state,  the  right  of  each  distributee  of  a 
decedent's  estate  is  several  and  indepen- 
dent of  the  rights  of  others,  the  dismissal 
of  an  appeal  as  to  heirs  not  made  parties 
cannot  affect  the  right  of  appeal  by  the 
state  as  to  the  parties  served.  Estate  of 
Pendergast,  143  Cal.  135;  76  Pac.  9G2. 

CODE  OOMMISSIONEES'  NOTE.  See  sub- 
division 2  of  note  to  §  954,  ante;  see  also  Fulton 
V.  Cox,  40  Cal.  101;  Fulton  v.  Hanna,  40  Cal. 
278. 


§  956.  What  may  be  reviewed  on  appeal  from  judgment.  Upon  an  ap- 
peal from  a  judgment  the  court  may  review  the  verdict  or  decision,  and  any 
intermediate  ruling,  proceeding,  order  or  decision  Avhich  involves  the  merits 
or  necessarily  affects  the  judgment,  or  which  substantially  affects  the  rights 
of  a  party.  The  court  may  also  on  such  appeal  review  any  order  on  motion 
for  a  new  trial.  The  provisions  of  this  section  do  not  authorize  the  court  to 
review  any  decision  or  order  from  which  an  appeal  might  have  been  taken. 

Allen  V.  Allen,  159  Cal.  197;  113  Pac.  160; 
Dundas  v.  Laukershim  School  Dist.,  155 
Cal.  692;  102  Pac.  925;  Sequeira  v.  Collins, 
153  Cal.  426;  95  Pac  876;  Ronev  v.  Rey- 
nolds, 152  Cal.  323;  92  Pac.  847;  "Prownlee 
V.  Reiner,  147  Cal.  641;  82  Pac.  324;  Breid- 
enbach  v.  M.  McCormick  Co.,  20  Cal.  App. 
184;  128  Pac.  423;  West  v.  Mears,  17  Cal. 
App.  718;  121  Pac.  700.  Sufficiency  of  evi- 
dence not  reviewable,  where  appeal  not 
taken  within  sixty  days.  McGrath  v.  Hvde, 
81  Cal.  38;  22  Pac.  293. 

Judgment  reviewed  how.  A  judgment 
can  be  reviewed  only  by  a  direct  appeal, 
talvcn  after  its  entry.  Brison  v.  Brison,  90 
Cal.  323;  27  Pac.  186. 

Matters  not  affecting  party  complaining. 
An  intervener  cannot  complain  that  judg- 
ment for  plaintiff  is  ineffectual  or  imper- 
fect in  its  relation  to  other  parties.  Gray 
V.  Bonnoll,  19  Cal.  App.  243;  125  Pac.  355. 

Questions  of  law  and  fact.  In  a  criminal 
case,  the  question  whether  a  witness  was 
an  accomplice  is  one  for  the  jury,  where  the 
facts  are  in  dispute;  otherwise  it  is  a  ques- 
tion of  law  for  the  court.  People  v.  Coffey, 
161  Cal.  433;  39  L.  R.  A.  (N.  S.)  704;  119 
Pac.  901.  Where  the  only  question  that 
can  arise  upon  appeal  is  a  legal  one,  the 
appellate  court  is  limited  to  the  papers 
mentioned  in  the  first  subdivision  of  §  670. 
Crackel  v.  Crackel,  17  Cal.  App.  60U;  121 
Pac.  295. 

Matters  within  discretion  of  court.  The 
discretionary  power  of  the  court  will  not 
be  disturbed,  except  for  a  clear  abuse  of 
discretion.  Lang  v.  Lilley  &  Thurston  Co., 
164  Cal.  294;  128  Pac.  1U26;  Estate  of 
Everts,  163  Cal.  449;  125  Pac.  105S;  Smith 
V.  Riverside  Groves  Water  Co.,  19  Cal.  App. 


Legislation  8  956.  1.  Enacted  March  11.  1873, 
and  then  re.Td:  "Upon  an  appeal  from  a  judg- 
ment, the  court  may  review  the  verdict  or  decis- 
ion, if  e.xcepted  to,  or  any  intermediate  order,  if 
excepted  to,  which  involves  the  merits  or  neces- 
sarily affects  the  judgment." 

3.  Amended  by  Code  Amdts.  1875-76,  p-  ^2, 
to  read:  "§  956.  Upon  an  appeal  from  a  judg- 
ment the  court  may  review  the  verdict  or  decision, 
and  any  intermediate  order  or  decision  excepted 
to,  which  involves  the  merits  or  necessarily  affects 
the  judgment,  except  a  decision  or  order  from 
which  an  appeal  might  have  been  taken." 

3.  Amendment  by  Stats.  1901,  p.  174;  un- 
constitutional.     See  note  ante,  §  5. 

4.  Amended  by  Stats.  1915,  p.  328;  recast- 
ing the  section. 

Construction  of  section.  "Verdict  or  de- 
cision" means  something  different  from 
"any  intermediate  order  or  decision":  the 
latter  phrase  does  not  mean  the  written 
findings  of  fact  and  law  required  by  §§  632, 
633,  to  be  filed  with  the  clerk  as  a  result  of 
a  trial  on  the  merits;  hence,  an  intermedi- 
ate non-appealable  order  or  decision  ex- 
cepted to,  involving  the  merits  or  affecting 
the  judgment,  may  be  review-ed  on  appeal 
from  final  judgment,  taken  within  one  year 
from  its  entry,  and  without  any  specifica- 
tion, in  the  bill  of  exceptions,  of  the  par- 
ticulars in  which  the  evidence  is  insufficient 
to  justify  such  order  or  decision:  the  ex- 
ception to  such  intermediate  order  or  de- 
cision is  not  an  exception  to  the  verdict  or 
decision.  Clifford  v.  Allman,  84  Cal.  528; 
24  Pac.  292. 

Appeal  must  be  in  time.  An  appeal  from 
a  judgment,  not  taken  in  time,  cannot  be 
considered  (Chase  v.  Holmes,  19  Cal.  App. 
670;  127  Pac.  652);  nor  points  urged  on  an 
appeal  taken  more  than  six  months  after 
entrv  of  judgment.  Sessions  v.  Southern 
Pacific   Co.,    159   Cal.    599;    114   Pac.    982; 


§956 


APPEALS   IN   GENERAL. 


109S 


165;  124  Pac.  870;  Lamb  v.  "Wilke,  19  Cal. 
App.  286;  125  Pac.  757;  Jones  v.  Lewis,  19 
Cal.  App.  575;  126  Pac.  853;  McConnell  v. 
Imperial  Water  Co.,  20  Cal.  App.  8;  127 
Pac.  1036,  1037;  Smith  v.  Jaceard,  20  Cal. 
App.  280;  128  Pac.  1023,  1024;  Conwell  v. 
Varain,  20  Cal.  App.  521;  130  Pac.  23; 
Dieckmann  v.  Merkh,  20  Cal.  App.  655; 
130  Pac.  27.  The  granting  or  refusing  of 
a  temporary  injunction  is  a  matter  rest- 
ing largely  in  the  discretion  of  the  trial 
court.  Miller  &  Lux  v.  Madera  Canal  etc. 
Co.,  155  Cal.  59;  22  L.  E.  A.  (N.  S.)  391; 
99  Pac.  502.  The  principle  of  res  adjudi- 
cata  is  not  applicable  to  motions:  the 
granting  or  denying  of  permission  to  re- 
new a  motion  is  a  matter  of  discretion. 
Lawson  v.  Lawson,  15  Cal.  App.  496;  115 
Pac.  461.  An  order  granting  or  denying 
relief  under  §  473,  ante,  is  within  the  dis- 
cretion of  the  court,  and  will  not  be  dis- 
turbed on  appeal,  where  no  abuse  of 
discretion  is  shown  (Blumer  v.  Mayhew, 
17  Cal.  App.  223;  119  Pac.  202;  Dernham 
V.  Bagley,  151  Cal.  216;  90  Pac.  543);  nor 
will  an  order  quashing  the  service  of  sum- 
mons by  publication  be  disturbed  on  ap- 
peal, where  no  abuse  of  discretion  is  shown 
(Wilson  V.  Leo,  19  Cal.  App.  793;  127  Pac. 
1043);  nor  the  disallowance  of  an  amend- 
ment to  an  answer  (Cook  v.  Suburban 
Eealty  Co.,  20  Cal.  App.  538;  129  Pac. 
801);  nor  the  action  of  the  court  below 
in  dismissing  an  action  for  undue  delay 
in  serving  the  summons  (Witter  v.  Phelps, 
163  Cal.  655;  126  Pac.  593);  nor  an  order 
made  upon  application  for  a  temporary 
injunction  (Miller  &  Lux  v.  Madera  Canal 
etc.  Co.,  155  Cal.  59;  22  L.  E.  A.  (N.  S.) 
391;  99  Pac.  502);  nor  the  action  of  the 
court  in  dismissing  an  action  for  want  of 
prosecution.  Bell  v.  Solomons,  162  Cal. 
105;  121  Pac.  377.  In  the  absence  of  a 
bill  of  exceptions,  an  order  denying  de- 
fendant's motion  to  set  aside  a  judgment, 
and  for  leave  to  file  an  amended  answer, 
cannot  be  said,  upon  appeal,  to  involve  an 
abuse  of  discretion.  Zany  v.  Eawhide  Gold 
Mining  Co.,  15  Cal.  App.  373;  114  Pac. 
1026.  Whether,  in  any  case,  the  discre- 
tion of  the  court  has  been  abused  by  the 
denial  of  a  motion  to  permit  a  "view  of 
the  premises,"  depends  upon  the  circum- 
stances, and  the  burden  on  appeal  is  upon 
the  moving  party  to  show  affirmatively 
that  such  discretion  has  been  abused.  Peo- 
ple V.  .Sampo,  17  Cal.  App.  135;  118  Pac. 
957.  Injury  arising  from  an  unreasonable 
delay  in  prosecuting  an  action  is  imma- 
terial upon  the  question  whether  there  has 
been  an  abuse  of  discretion  in  dismissing 
the  action  upon  that  ground.  Gray  v. 
Times-Mirror  Co.,  11  Cal.  App.  155;  104 
Pac.  481. 

Orders  striking  out  pleadings.  Neither 
an  order  striking  out  a  portion  of  the  com- 
plaint (Swain  v.  Burnette,  76  Cal.  299;  18 
Pac.   394;     Wood   v.   Missouri   Pacific   Ey. 


Co.,  152  Cal.  344;  92  Pac.  868),  nor  an 
order  or  decision  striking  out  the  com- 
plaint, is  appealable,  but  may  be  reviewed 
upon  appeal  from  the  final  judgment. 
Clifford  V.  Allman,  84  Cal.  528;  24  Pac. 
292;  Alpers  v.  Bliss,  145  Cal.  565;  79  Pac. 
171. 

Orders  made  upon  demurrers.  The  ac- 
tion of  the  court,  either  in  sustaining  or 
overruling  a  demurrer,  can  be  reviewed 
only  upon  an  appeal  from  the  final  judg- 
ment. Wood  v.  Missouri  Pacific  Ey.  Co., 
152  Cal.  344;  92  Pac.  868;  Hadsall  v.  Case, 

15  Cal.  App.  541;  115  Pac.  330;  Hanke  v. 
McLaughlin,  20  Cal.  App.  204;  128  Pac. 
772.  An  order  overruling  a  demurrer  to 
a  complaint  will  not  be  reviewed  on  an 
appeal  by  the  plaintiff  from  a  judgment 
in  favor  of  the  defendant.  Bank  of  Na- 
tional City  V.  Johnston,  6  Cal.  Unrep.  418; 
60  Pac.  776. 

Questions  not  raised  in  trial  court.  Ob- 
jections that  should  have  been,  but  were 
not,  made  in  the  court  below,  such  as  those 
not  going  to  the  question  of  jurisdiction, 
cannot  be  raised  for  the  first  time  on  ap- 
peal. Estate  of  Dombrowski,  163  Cal.  290; 
125  Pac.  233;  Hardy  v.  Schirmer,  163  Cal. 
272;  124  Pac.  993;  Milwaukee  Mechanics' 
Ins.  Co.  v.  Warren,  150  Cal.  346;  89  Pac. 
93;  Parke  &  Lacy  Co.  v.  Inter  Nos  Oil 
etc.  Co.,  147  Cal.  490;  82  Pac.  51;  Doudell 
V.  Shoo,  20  Cal.  App.  424;  129  Pac.  478; 
Tubbs  V.  Delillo,  19  Cal.  App.  612;  127 
Pac.  514;  Keefe  v.  Keefe,  19  Cal.  App. 
310;  125  Pac.  929;  Kern  Vallev  Bank  v. 
Koehn,  19  Cal.  App.  247;  125  Pac.  358; 
Bartnett  v.  Hull,  19  Cal.  App.  91;  124  Pac. 
885;  Brandt  v.  Salomonson,  17  Cal.  App. 
397;  119  Pac.  946;  Kriste  v.  International 
Savings  etc.  Bank,  17  Cal.  App.  301;  119 
Pac.  666;  Pehl  v.  Fanton,  17  Cal.  App. 
250;  119  Pac.  400.  Except  in  the  cases 
specified  in  §  647,  ante,  an  exception  must 
be  taken  at  the  time  the  decision  is  made; 
if  not,  the  objection  to  the  ruling  cannot 
be  urged  on  appeal.  Eandall  v.  Freed,  154 
Cal.  299;  97  Pac.  669;  Napa  Valley  Pack- 
ing Co.  V.  San  Francisco  Eelief  etc.  Funds, 

16  Cal.  App.  461;  118  Pac.  469.  Before 
the  amendment  of  1909  to  §  647,  ante,  ob- 
jections to  testimony  were  disregarded 
on  appeal,  where  the  grounds  thereof  were 
not  stated  in  the  court  below.  Bakcrsfield 
etc.  E.  E.  Co.  V.  Fairbanks,  20  Cal.  App. 
412;  129  Pac.  610.  Error  cannot  be  urged 
for  the  first  time  on  appeal,  where  no  ob- 
jection was  made  in  the  court  below. 
Hardy  v.  Schirmer,  163  Cal.  272;  124  Pac. 
993.  Where  the  court  has  jurisdiction  of 
the  subject-matter  and  of  the  parties,  and 
where  no  objection  is  properly  made  in  the 
court  below  to  the  manner  of  procedure 
by  which  the  cause  was  brought  into  such 
court,  such  objection  cannot  be  made  for 
the  first  time  on  appeal  (Groom  v.  Bangs, 
153  Cal.  456;  96  Pac.  503);  nor  can  an 
objection  that  a  finding  was  not  within  the* 


1099 


REVERSAL  OF   ORDERS — SUFFICIENCY   OF    COMPLAINT. 


§956 


issue  be  raised  for  the  first  time  on  ap- 
peal (Kutz  V.  Obear,  15  Cal.  App.  435; 
115  Pac.  67);  nor  an  olijection  that  there 
was  a  variance  (Cargnaiii  v.  Cart^nani,  16 
Cal.  App.  96;  116  Pac.  :506);  nor  an  ob- 
jection that  there  was  a  variance  in  proof 
(Nielson  v.  Gross,  17  Cal.  App.  74;  118 
Pac.  725);  nor  an  objection  that  certain 
evidence  was  erroneouslv  admitted  (Peo- 
ple V.  Schafer,  161  Cal.  573;  119  Pac.  920; 
Crackel  v.  Crackel,  17  Cal.  App.  600;  121 
Pac.  295;  Burnett  v.  Lyford.  93  Cal.  114; 
28  Pac.  855);  nor  an  objection  that  cer- 
tain evidence  was  inadmissible,  where  the 
case  was  tried  upon  the  theory  that  it  was 
admissible  (Cargnani  v.  Cargnani,  16  Cal. 
App.  96;  116  Pac.  306);  nor  an  objection 
that  there  was  error  in  allowing  the  re- 
reading to  the  jury,  of  a  portion  of  the 
testimony  of  the  plaiutitr  (Hardy  v. 
Schirmer,  163  Cal.  272;  124  Pac.  993);  nor 
an  objection  that  the  questions  in  a  special 
verdict  were  improjjerly  phrased  (Xapa 
Valley  Packing  Co.  v.  San  Francisco  Kelief 
etc.  Funds,  16  Cal.  App.  461;  118  Pac.  469); 
nor  an  objection  that  causes  of  action 
were  improperly  joined.  "Worth  v.  Worth, 
155  Cal.  599;  "102  Pac.  663.  Where  the 
appellant  went  to  trial  in  the  court  below 
without  insisting  upon  a  disposition  of  his 
demurrer,  he  cannot  be  permitted  to  object 
upon  that  ground  in  the  appellate  court. 
De  Leon  v.  Higuera,  15  Cal.  483.  If  par- 
ties, in  an  action  for  the  sale  of  trust 
property,  and  to  have  the  proceeds  ap- 
plied to  the  payment  of  certain  debts, 
stipulate  that  the  proiierty  may  be  sold 
and  the  proceeds  distributed  among  the 
persons  and  parties  thereto,  the  defendant 
cannot,  because  of  such  stipulation,  urge 
for  the  first  time  on  appeal  that  the  plain- 
tiff has  no  right  to  maintain  the  action, 
or  that  the  complaint  is  insufficient  be- 
cause it  does  not  state  a  cause  of  action. 
Bank  of  Visalia  v,  Dillonwood  Lumber 
Co.,  148  Cal.  IS;  82  Pac.  374.  Where  per- 
mission to  amend  the  complaint,  after  a 
demurrer  thereto  is  sustained,  is  denied, 
it  is  too  late  to  make  the  point  for  the 
first  time  on  appeal,  when  nothing  ap- 
pears in  the  record  to  show  an  abuse  of 
discretion.  Varni  v.  Devoto,  10  Cal.  App. 
304;  101  Pac.  934.  Where  no  objection 
was  made  in  the  court  below  to  the  man- 
ner in  which  a  judgment  of  a  justice  of 
the  peace  was  pleaded,  and  it  seems  to 
have  been  treated  by  all  parties  as  a  suffi- 
cient statement  of  the  facts  therein  set 
out,  it  cannot  be  urged  for  the  first  time 
on  appeal  that  the  plea  of  such  judgment 
was  insufficiently  alleged.  Kriste  v.  Inter- 
national Savings  etc.  Bank,  17  Cal.  App. 
301;  119  Pac.  666.  Where  parties  have 
proceeded  to  trial  upon  a  pleading,  with- 
out objection  to  its  sufficiency  to  raise  a 
particular  issue,  and  evidence  has  been 
received  as  to  the  facts,  and  the  issue 
found  upon,  the  party  whose  duty  it  was 


to  object  will  not  be  heard,  in  the  appel- 
late court,  to  say  that  the  finding  is  not 
within  the  issue.  Rutz  v.  Obear,  15  Cal. 
App.  435;  115  Pac.  67;  California  Portland 
Cement  Co.  v.  Wentworth  Hotel  Co.,  16 
Cal.  App.  692;  US  Pac.  103.  Where  the 
defendant's  ansvv(!r  treats  the  issue  of  de- 
livery as  having  been  proi)erly  made,  ami 
evidence  is  heard  on  the  subject,  ami  tho 
court  makes  a  finding  in  determination  of 
such  issue,  it  is  too  late  to  object  on  ap- 
peal, for  the  first  time,  that  the  com[)Iaint 
fails  to  state  a  cause  of  action  in  tho 
particular  referred  to.  Hoover  v.  Lester, 
16  Cal.  App.  151;  116  Pac.  382.  Where 
both  parties  treat  a  certain  question  of 
fact  as  being  in  issue,  and  oITi-r  evidence 
regarding  it,  the  point  that  no  issue  is 
presented  by  the  [)leadings  is  waived,  and 
cannot  be  raised  on  appeal.  Milwaukee 
Mechanics'  Ins.  Co.  v.  Warren,  150  Cal. 
346;  89  Pac.  93.  A  special  objection  to 
the  admission  of  evidence  is  waived  by 
the  making  of  a  general  one,  and  cannot 
be  urged  for  the  first  time  on  appeal. 
French  v.  Atlas  Milling  Co.,  17  Cal.  App. 
226;  119  Pac.  203.  Where  no  objection 
was  made  to  the  admission  of  evidence 
of  a  fact,  and  the  trial  was  had  upon  the 
theory  that  the  fact  was  in  issue,  the  ob- 
jection that  the  finding  of  fact  was  outsi<le 
of  the  issues  will  not  be  considered  on  ap- 
peal. Peck  V.  Noee,  154  Cal.  351;  97  Pac. 
865.  A  party  will  not  be  heard  to  object 
to  a  verdict,  for  the  first  time  on  ajipeal 
from  the  judgment,  if  it  is  susceptible  of 
a  construction  that  may  have  a  lawful 
and  relevant  effect.  Reed  Orchard  Co.  v. 
Superior  Court,  19  Cal.  App.  648;  12S  Pac. 
9.  A  failure  to  interpose  any  objection  to 
the  settling  of  a  bill  of  exceptions  is  a 
waiver  of  such  objection.  Sheppard  v. 
Sheppard.  15  Cal.  App.  614;  115  Pac.  751. 

Sufficiency  of  complaint.  The  sufficiency 
of  the  complaint  will  be  reviewed  upon 
appeal  from  a  judgment  dismissing  the  ac- 
tion. Kinard  v.  Jordan,  10  Cal.  App.  219; 
101  Pac.  696.  An  objection  that  the  com- 
plaint does  not  state  facts  sufficient  to 
constitute  a  cause  of  action,  is  not  waived 
by  a  failure  to  demur,  nor  cured  by  ver- 
dict or  judgment,  and  may  be  urged  on 
appeal.  Bell  v.  Thompson,  147  Cal.  689; 
82  Pac.  327.  Objections  to  the  complaint, 
urged  upon  a  demurrer  thereto,  cannot  be 
considered  after  the  dismissal  of  an  ap- 
peal from  the  judgment:  the  insufficiency 
of  the  complaint  can  be  reviewed  only 
upon  such  an  appeal.  Cook  v.  Suburban 
Realty  Co.,  20  Cal.  App.  538;  129  Pac.  SOI. 
After  a  case  has  been  tried  on  an  amended 
complaint,  the  appellate  court  has  no 
power  to  consider  the  original  complaint 
for  any  purpose.  Brav  v.  Lowcry,  1G3  Cal. 
256;  124  Pac.  100^. 

Questions  presented  by  demurrer.  The 
defendant  is  entitled  to  the  decision  of 
the   appellate   court  on  all  questions  pre- 


956 


APPEALS   IN    GENERAL. 


1100 


sented  by  his  demurrer,  and  necessary  to 
the  decision  made.  Burke  v.  Maguire,  154 
Cal.456;  98Pae.  21. 

Exceeding  amount  claimed.  The  extent 
of  relief  is  governed  by  the  allegations  of 
the  complaint,  although  the  evideuee  shows 
that  the  plaintiff  is  entitled  to  a  judgment 
in  excess  of  the  amount  claimed  in  his 
complaint.  Tubbs  v.  Delillo,  19  Cal.  App. 
612;  127  Pac.  514. 

Evidence,  Upon  an  appeal  from  a  judg- 
ment entered  upon  granting  a  motion  for 
a  nonsuit,  all  reasonable  inferences  must 
be  resolved  in  favor  of  the  plaintiff,  in 
reviewing  the  evidence,  and  the  construc- 
tion of  the  evidence  most  favorable  to  the 
plaintiff"  must  be  given.  Union  Const.  Co. 
v.  Western  Union  Tel.  Co.,  163  Cal.  298; 
125  Pac.  242.  The  weight  of  evidence  is 
not  determined  by  the  number  of  wit- 
nesses: some  circumstances  almost  always 
crop  out  which  enable  the  court  to  deter- 
mine the  truth  of  the  matter.  Henley  v. 
Pacific  Fruit  Cooling  etc.  Co.,  19  Cal.  App. 
728;  127  Pac.  800.  The  question  whether 
or  not  the  evidence  on  a  given  subject  is 
clear  and  convincing  is  for  the  trial  court. 
Oldershaw  v.  Matteson  &  Williamson  Mfg. 
Co.,  19  Cal.  App.  179;  125  Pac.  263.  Where 
the  judgment  must  be  reversed,  and  the 
cause  sent  back  for  a  new  trial,  it  is 
neither  necessary  nor  proper  to  review  the 
evidence,  so  far  as  it  relates  to  damages 
awarded  to  the  plaintiff.  Knight  v.  Black, 
19  Cah  App.  518;  126  Pac.  512.  Written 
opinions  of  the  trial  judge,  although  em- 
bodied in  the  bill  of  exceptions  used  on 
appeal,  cannot  be  considered  in  deter- 
mining whether  or  not  the  findings  are 
sufficiently  supported  by  the  evidence. 
Goldner  v.  Spencer,  163  Cal.  317;  125  Pac. 
347.  On  an  appeal  taken  on  the  judgment 
roll  alone,  the  evidence  is  not  reviewable, 
and  its  sufficiency  to  support  the  findings 
is,  of  course,  not  to  be  questioned.  Archer 
V.  Harvey,  164  Cal.  274;  128  Pac.  410. 
Where  the  verdict  is  attacked  for  insuffi- 
ciency of  evidence,  the  power  of  the  ap- 
pellate court  begins  and  ends  with  the 
inquiry  whether  there  is  substantial  evi- 
dence, contradicted  or  uncontradicted, 
which,  in  itself,  would  support  the  con- 
clusion reached  by  the  jury.  Gjurich  v. 
Fieg,  164  Cal.  429;  129  Pac.  404. 

Review,  where  evidence  conflicting. 
Where  there  is  conflicting  evidence  on  a 
question  of  fact,  with  some  substantial  evi- 
dence to  support  it,  the  findings  and  con- 
clusion of  the  trial  court  will  not  be 
disturbed  on  appeal.  Suhr  v.  Lauterbach, 
164  Cal.  591;  130  Pac.  2;  Olaine  v.  Mc- 
Graw,  164  Cal.  424;  129  Pac.  460;  Cooke 
v.  Mesmer,  164  Cal.  332;  128  Pac.  '917; 
Home  Keal  Estate  Co.  v.  Los  Angeles 
Pacific  Co.,  163  Cal.  710;  126  Pac.  972; 
Burr  V.  United  Railroads,  163  Cal.  663; 
126  Pac.  873;  Walker  v.  Price,  163  Cal. 
617;   126  Pac.  482;   Wolf  v.  ^tna  Indem- 


nity Co.,  163  Cal.  597;  126  Pac.  470;  Cal- 
lahan V.  Marshall,  163  Cal.  552;  126  Pac. 
358;  Gallatin  v.  Corning  Irrigation  Co.,  163 
Cal.  405;  Ann.  Cas.  1914A,  74;  126  Pac. 
864;  Eimpau  v.  Baldwin,  163  Cal.  225;  124 
Pac.  1002;  Meloy  v.  Imperial  Land  Co., 
163  Cal.  99;  124  Pac.  712;  Channel  Com- 
mercial Co.  V.  Hourihan,  20  Cal.  App.  647; 
129  Pac.  947;  McCann  v.  McCann,  20  Cal. 
App.  567;  129  Pac.  965;  Oppenheimer  v. 
Radke  &  Co.,  20  Cal.  App.  518;  129  Pac. 
798;  Marston  v.  Watson,  20  Cal.  App.  465; 
129  Pac.  611;  Doudell  v.  Shoo,  20  Cal.  App. 
424;  129  Pac.  478;  Lundeen  v.  Nowlin,  20 
Cal.  App.  415;  129  Pac.  474;  McDougall  v. 
Eaton,  20  Cal.  App.  164;  128  Pac.  415; 
Eoot  v.  Greadwohl,  20  Cal.  App.  139;  128 
Pac.  418;  Wilson  v.  Leo,  19  Cal.  App.  793; 
127  Pac.  1043;  Henley  v.  Pacific  Fruit 
Cooling  etc.  Co.,  19  Cal.  App.  728;  127  Pac. 
800;  Blanck  v.  Commonwealth  Amusement 
Corporation,  19  Cal.  App.  720;  127  Pac. 
805;  Parker  v.  Herndon,  19  Cal.  App.  451; 
126  Pac.  183;  Boyer  v.  Gelhaus,  19  Cal. 
App.  320;  125  Pac.  916;  Lamb  v.  Wilke, 
19  Cal.  App.  286;  125  Pac.  757;  Oldershaw 
v.  Matteson  &  Williamson  Mfg.  Co.,  19 
Cal.  App.  179;  125  Pac.  263;  In  re  Prop- 
erty of  Carlin,  19  Cal.  App.  168;  124  Pac. 
868;  Scharpf  v.  Union  Oil  Co.,  19  Cal.  App. 
100;  124  Pac.  864.  On  appeal,  the  court 
will  not  review  conflicting  evidence.  Reeve 
V.  Colusa  Gas  etc.  Co.,  152  Cal.  99;  92  Pac. 
89.  The  appellate  court  cannot  weigh  con- 
flicting evidence  and  determine  according 
to  the  preponderance:  that  function  de- 
volves upon  the  trial  court  alone.  Eimpau 
V.  Baldwin,  163  Cah  225;  124  Pac.  1002. 
Ou  appeal  from  an  order  made  upon  con- 
flicting affidavits,  those  in  favor  of  the 
prevailing  party  must  be  taken  as  true, 
and  the  facts  stated  therein  must  be  con- 
sidered as  established.  Bernou  v.  Bernou, 
15  Cal.  App.  341;  114  Pac.  1000;  Budd  v. 
Superior  Court,  14  Cal.  App.  256;  111  Pac. 
628.  The  order  denying  an  application  for 
a  change  of  the  place  of  trial  will  not  be 
disturbed,  where  it  was  made  upon  con- 
flicting affidavits.  Carpenter  v.  Ashley,  15 
Cal.  App.  461;  115  Pac.  268. 

Rule  as  to  findings  and  verdict  on  con- 
flicting evidence.  The  jury  must  decide 
facts  in  dispute,  and  their  finding  will  not 
be  disturbed  on  appeal.  People  v.  Coffev, 
161  Cal.  433;  39  L.  R.  A.  (N.  S.)  704;  119 
Pac.  901.  A  finding  based  upon  conflicting 
evidence  is  conclusive  upon  the  appellate 
court,  if  there  is  some  substantial  evidence 
in  support  of  it.  Patterson  v.  San  Fran- 
cisco etc.  Ey.  Co.,  147  Cal.  178;  81  Pac. 
531;  Emerson  v.  Yosemite  Gold  Mining 
etc.  Co.,  149  Cal.  50;  85  Pac.  122;  Piercy 
v.  Piercy,  149  Cal.  163;  86  Pac.  507;  Cris- 
man  v.  Lanterman,  149  Cal.  647;  117  Am. 
St.  Rep.  167;  87  Pac.  89;  Moore  v.  Gould, 
151  Cal.  723;  91  Pac.  616;  Estate  of  John- 
son, 152  Cal.  780;  93  Pac.  1015;  Estate  of. 
Doolittle,   153  Cal.  29;   94  Pac.  240;   Fogg 


noi 


REVIEW  ON   COXFLICTIXG   EVIDENCE — SPECIFICATIONS. 


§956 


V.  Pcrris  Trrijration  Dist.,  154  Cal.  209; 
97  Pac.  316;  Ma.lison  v.  Octave  Oil  Co., 
154  Cal.  768;  99  Pac.  176;  De  Gottardi  v. 
Doiiati,  155  Cal.  109;  99  Pac.  492;  Duiiphy 
V.  Duiiphv,  161  Cal.  3S0;  Ann.  Cas.  19i:5B, 
1230;  38  L.  R.  A.  (N.  S.)  818;  119  Pac. 
512;  Consolidated  Lumber  Co.  v.  Fidelity 
etc.  Co.,  161  Cal.  397;  119  Pac.  506;  Smith 
V.  Siiibad  Development  Co.,  15  Cal.  Apj). 
166;  113  Pac.  701;  Martin  v.  Stone,  15  Cal. 
App.  174;  113  Pac.  706;  Estate  of  Weber, 
15  Cal.  App.  224;  114  Pac.  597;  Patton  v. 
Klcmmer,  15  Cal.  App.  459;  115  Pac.  62; 
Tench  v.  McMeekan,  17  Cal.  App.  14;  118 
Pac.  476;  People  v.  Delucchi,  17  Cal.  App. 
96;  118  Pac.  935;  Robinson  v.  American 
Fish  etc.  Co.,  17  Cal.  App.  212;  119  Pac. 
388;  West  v.  Mears,  17  Cal.  App.  718;  121 
Pac.  700.  Conflicts  of  testimony  are 
deemed  to  have  been  finally  resolved  in  the 
court  below.  Dunphv  v.  Dunphv,  161  Cal. 
380;  Ann.  Cas.  1913B,  1230;  38  L.  R.  A. 
(N.  S.)  818;  119  Pac.  512.  Where  the 
finding  of  the  trial  court  is  in  support  of 
the  evidence,  either  directly  or  by  fair 
inference  therefrom,  it  must  stand.  Tench 
v.  McMeekan,  17  Cal.  App.  14;  118  Pac. 
476;  Mentone  Irrigation  Co.  v.  Redlands 
Electric  Light  etc.  Co.,  155  Cal.  323;  17 
Ann.  Cas.  1222;  22  L.  R.  A.  (N.  S.)  382; 
100  Pac.  1082.  A  finding  against  the 
great  weight  and  preponderance  of  the  evi- 
dence can  be  maintained  on  the  doctrine 
of  "conflict,"  only  where  the  alleged  con- 
flict rests  upon  evidence,  either  direct  or 
circumstantial,  which  so  materiallj'  con- 
tradicts the  testimony  on  the  other  side, 
or  is  so  radically  inconsistent  with  it,  as 
to  leave  room,  in  a  fair  and  reasonable 
mind,  to  find  the  fact  either  way.  Hough- 
ton V.  Loma  Prieta  Lumber  Co.,  152  Cal. 
574;  93  Pac.  377.  The  rule  that  the  trial 
judge  is  the  final  arbiter  as  to  all  ques- 
tions of  fact,  where  the  evidence  is  con- 
flicting, applies  in  all  cases,  whether  the 
evidence  is  given  orally  or  by  deposition 
or  affidavit.  Sheehan  v.  Osborn,  138  Cal. 
512;  71  Pac.  622;  Crisman  v.  Lanterman, 
149  Cal.  647;  117  Am.  St.  Rep.  167;  87 
Pac.  89;  Meyerink  v.  Barton,  6  Cal.  Unrep. 
551;  62  Pac.  505;  Rounthwaite  v.  Roun- 
thwaite,  6  Cal.  Unrep.  878;  68  Pac.  304. 
The  rule  that  the  determination  of  a  jury 
or  of  a  trial  court,  u])on  matters  of  fact, 
in  cases  of  a  conflict  of  evidence,  is  deemed 
conclusive  upon  appeal,  if  there  is  any  sub- 
stantial evidence  to  support  such  deter- 
mination, applies  to  negligence  cases 
(Reeve  v.  Colusa  Gas  etc.  Co.,  152  Cal. 
99;  92  Pac.  89;  Scott  v.  San  Bernardino 
Valley  Traction  Co..  152  Cal.  604;  93  Pac. 
677;  Imperial  Valley  Mercantile  Co.  v. 
Southern  Pacific  Co.,  15  Cal.  Ai)p.  385;  114 
Pac.  1003);  and  to  cases  involving  the 
credibility  of  witnesses  and  the  weight  of 
evidence  (Roney  v.  Revnobls,  152  Cal.  323; 
92  Pac.  847;  Ernest  v.' McCauley,  155  Cal. 
739;  102  Pac.  924;  Carter  v.  Grosshaus,  17 


Cal.  App.  703;  121  Pac.  700);  and  to  crimi- 
nal cases  (Peojile  v.  Delucchi,  17  Cal.  App. 
96;  118  I'ac.  935;  People  v.  Barlow,  17 
Cal.  App.  375;  119  Pac.  940;  People  v. 
Moore,  155  Cal.  237;  100  Pac.  688;  People 
V.  Crosby,  17  Cal.  App.  518;  120  Pac.  441; 
People  v.  Bennett,  161  Cal.  214;  118  Pac. 
710);  and  to  a  finding  as  to  the  delivery 
of  a  deed  (Zihn  v.  Zihn,  153  Cal.  405;  95 
I'ac.  868);  and  to  a  finding  as  to  the  true 
location  of  a  disputed  boumlary  line 
(Spencer  v.  Clarke,  15  Cal.  App.  512;  115 
Pac.  248);  and  to  a  finding  as  to  whether 
a  deed  is  a  mortgage  (Anglo-Californian 
Bank  v.  Cerf,  147  Cal.  384;  81  Pac.  1077; 
Wadleigh  v.  Phelps,  149  Cal.  627;  87  Pac. 
93;  Couts  V.  Winston,  153  Cal.  686;  06 
Pac.  357;  Beckman  v.  Waters,  161  Cal. 
581;  119  Pac.  922);  and  to  a  finding  rela- 
tive to  mental  capacity,  validity  of  a  will, 
authority  to  issue  letters  of  administra- 
tion, etc.  Dunphy  v.  Dunphy,  161  Cal.  380; 
Ann.  Cas.  1913B,  1230;  38  L.  R.  A.  (X.  S.) 
818;  119  Pac.  512;  Estate  of  Doolittle,  153 
Cal.  29;  94  Pac.  240;  Estate  of  Weber,  15 
Cal.  App.  224;  114  Pac.  597;  Estate  of 
Hayden.  149  Cal.  680;  87  Pac.  275;  Col- 
lins V.  Maude,  144  Cal.  289;  77  Pac.  945); 
and  to  a  motion,  under  §  581a,  ante,  to  dis- 
miss for  want  of  service  of  summons.  Mc- 
Colgan  V.  Piercy,  17  Cal.  App.  160;  118 
Pac.  957.  A  clear,  specific  finding  of  the 
ultimate  fact  must  prevail  over  findings 
of  probative  facts,  where  there  is  no  neces- 
sary conflict  between  the  probative  facts 
found  and  the  finding  of  the  ultimate  fact: 
it  is  only  where  the  probative  facts  found 
are  necessarily  in  conflict  with  the  ulti- 
mate fact  found,  that  the  findings  of  pro- 
bative facts  can  prevail  over  a  clear  and 
express  finding  of  ultimate  fact.  People 
V.  McCue,  150  Cal.  195;  88  Pac.  899. 

Specifications  necessary  for  review  of 
evidence.  Whether  the  evidence  is  suffi- 
cient to  sustain  the  findings  cannot  be 
considered  on  appeal,  in  the  absence  of 
specifications  of  particulars.  Worth  v. 
Worth,  155  Cal.  599;  102  Pac.  663;  Anglo- 
Californian  Bank  v.  Cerf,  147  Cal.  384;  81 
Pac.  1077;  Estudillo  v.  Security  Loan  etc. 
Co.,  158  Cal.  71;  109  Pac.  884.  Specifica- 
tions of  insufficiency  of  the  evidence  are 
essential  to  a  review  thereof  to  ascertain 
w'hether  or  not  the  judgment  is  supported 
thereby.  California  Portland  Cement  Co. 
v.  Wentworth  Hotel  Co.,  16  Cal.  App.  692; 
118  Pac.  103.  The  sufficiency  of  the  evi- 
dence to  support  a  finding,  order,  decision, 
or  judgment  cannot  be  reviewed  on  ap- 
peal, when  the  bill  of  exceptions  contains 
no  specifications  of  the  particulars  in  which 
the  evidence  is  alleged  to  be  insufficient. 
Estate  of  Piper,  147  Cal.  606;  82  Pac.  246; 
Hawley  v.  Harrington,  152  Cal.  188;  92 
Pac.  177;  Guardianship  of  Baker,  153  Cal. 
537;  96  Pac.  12;  San  Luis  Water  Co.  v. 
Estrada,  117  Cal.  168;  48  Pac.  1075;  Cogh- 
lau   V.   (^Uiartararo,   15   Cal.  App.   662;   115 


§956 


APPEALS   IN    GENERAL. 


1102 


Pac.  664;  California  Portland  Cement  Co. 
V.  Wentworth  Hotel  Co.,  16  Cal.  App.  692; 
118  Pac.  103;  Layne  v.  Johnson,  19  Cal. 
App.  95;  124  Pac.  860;  Eousseau  v.  Cohn, 
20  Cal.  App.  469;  129  Pac.  618.  The  ap- 
pellate court  is  precluded  from  reviewing 
the  sufficiency  of  the  evidence,  either  upon 
an  appeal  from  the  judgment  or  from  an 
order  denying  a  new  trial,  and  must  accept 
the  findings  of  fact  made  by  the  trial 
court  as  correct,  where  the  evidence  is 
embodied  in  a  bill  of  exceptions  contain- 
ing no  specifications  of  the  particulars  in 
which  the  evidence  is  insufficient  to  sup- 
port the  findings.  Coghlan  v.  Quartararo, 
15  Cal.  App.  662;  115  Pac.  664.  An  affi- 
davit used  only  on  the  motion  for  a  new 
trial  cannot  be  considered  on  appeal  in 
determining  the  sufficiency  of  the  evidence 
to  support  the  findings.  Gallatin  v.  Corn- 
ing Irrigation  Co.,  163  Cal.  405;  Ann.  Gas. 
1914A,  74;  126  Pac.  864.  An  appellant 
cannot  complain  of  the  admission  of  evi- 
dence offered  by  himself.  Gjurich  v.  Fieg, 
164  Cal.  429;  129  Pac.  464. 

Reviewing  sufiiciency  of  evidence.  See 
also  note  ante,  §  939. 

Where  evidence  is  wanting.  Where  there 
is  an  entire  absence  of  evidence  to  sustain 
a  finding,  the  burden  is  on  the  party  sus- 
taining the  finding  to  call  attention  to 
enough  evidence  to  justify  it.  San  Luis 
Water  Co.  v.  Estrada,  117  Cal.  168;  48 
Pac.  1075.  When  the  appellate  court  must 
determine  whether  a  finding  of  the  trial 
court  is  without  substantial  affirmative 
evidence  to  support  it,  it  must,  like  the 
trial  court,  be  necessarily  guided  by  the 
means  furnished  by  the  law  for  measur- 
ing the  effect  of  the  production  or  with- 
holding of  certain  evidence.  Bone  v. 
Hayes,  154  Cal.  766:  99  Pac.  172.  In  a 
criminal  case,  a  court  of  appeal  will  pass 
only  upon  questions  of  law:  it  is  only 
w^here  there  is  an  entire  absence  of  evi- 
dence to  support  a  verdict  that  a  question 
of  fact  is  presented.  People  v.  Barlow,  17 
Cal.  App.  375;  119  Pac.  940. 

Review  of  instructions.  A  failure  of 
the  trial  court  to  instruct  on  given  points 
cannot  be  urged  on  appeal,  where  no  re- 
quest was  made  for  such  instructions. 
Hardy  v.  Schirmer,  163  Cal.  272;  124  Pac. 
993.  A  refusal  to  give  instructions  will 
not  be  considered  on  appeal,  where  the 
record  fails  to  give  all  the  instructions 
submitted  to  the  jury,  or  does  not  show 
that  the  instructions  refused  were  not  sub- 
stantially embodied  in  those  given.  Pat- 
ton  v.  Klemmer,  15  Cal.  App.  459;  115  Pac. 
62.  The  appellant  cannot  complain  of  in- 
structions requested  by  himself.  Grav  v. 
Ellis,  164  Cal.  481;  129  Pac.  791.  "The 
refusal  of  the  court,  upon  request,  to  direct 
the  jury  to  find  a  special  verdict  upon  a 
material  issue  is  erroneous.  Napa  Valley 
Packing  Co.  v.  San  Francisco  Relief  etc. 
Funds,  16  Cal.  App.  461;  118  Pac.  469. 


Review  of  verdict.  A  verdict  cannot  be 
based  upon  a  mere  general  statement,  con- 
sisting partly  of  imagination  and  partly 
of  opinion.  Scurich  v.  Ryan,  14  Cal.  App. 
750;  113  Pac.  123.  It  is  the  duty  of  an 
appellate  court  to  sustain  the  verdict, 
where  there  is  a  substantial  conflict  of  the 
evidence,  no  matter  how  much  it  may  pre- 
ponderate upon  the  other  side.  Fowden  v. 
Pacific  Coast  S.  S.  Co.,  149  Cal.  151;  86 
Pac.  178.  A  verdict  for  damages  for  per- 
sonal injuries  will  not  be  disturbed  on  ap- 
peal as  excessive,  unless  it  was  clearly  the 
result  of  passion  or  prejudice  on  the  part 
of  the  jury.  Bonneau  v.  North  Shore  R.  R. 
Co.,  152  Cal.  406;  125  Am.  St.  Rep.  68;  93 
Pac.  106.  The  power  of  the  appellate 
court  over  excessive  damages  exists  only 
when  the  facts  are  such  that  the  excess 
appears  as  a  matter  of  law,  or  is  such  as 
to  suggest,  at  first  blush,  passion,  preju- 
dice, or  corruption  on  the  j^art  of  the  jury. 
Bond  V.  United  Railroads,  159  Cal.  270; 
Ann.  Cas.  1912C,  50;  113  Pac.  366. 

Necessity  of  findings.  Before  a  judg- 
ment cau  be  entered  on  new  issues,  and 
before  the  matters  involved  can  be  re- 
viewed upon  appeal,  the  trial  court  must 
have  made  specific  findings.  Estate  of 
Yoell,  164  Cal.  540;  129  Pac.  999.  Where 
a  husband  sues  for  divorce  on  the  ground 
of  desertion,  and  the  wife  subsequently 
begins  an  action  for  maintenance,  a  find- 
ing in  her  action  cannot  dispense  with  a 
finding  in  the  husband's  action  upon  the 
issue  of  desertion.  Kusel  v.  Kusel,  147 
Cal.  52;  81  Pac.  297.  Where  the  admitted 
facts  show  that  a  finding  on  the  statute 
of  limitations  could  not  have  been  other- 
wise than  against  the  appellant,  a  findiug 
thereon  is  unnecessary.  Bell  v.  Adams,  150 
Cal.  772;  90  Pac.  118.  Where  the  defend- 
ant waives  his  claim  to  a  heavier  judg- 
ment, allegations  and  findings,  other  than 
those  necessary  to  sustain  the  judgment 
as  rendered,  will  be  treated  as  surplusage. 
Great  Western  Gold  Co.  v.  Chambers,  155 
Cal.  364;  101  Pac.  6.  Where  certain  find- 
ings necessarily  dispose  of  the  case,  it 
matters  not,  on  an  appeal  from  an  order 
denying  a  new  trial,  that  there  are  no 
findings  upon  other  issues,  or  that  find- 
ings upon  other  issues  are  conflicting,  or 
whether  other  findings  are  sufficiently  sup- 
ported by  the  evidence.  Black  v.  Harrison 
Home  Co.,  155  Cal.  121;  99  Pac.  494. 

Failure  to  make  findings.  The  failure 
of  the  trial  court  to  make  a  finding  of  fact 
upon  a  material  issue  renders  the  decision 
one  against  law,  and  a  motion  for  a  new 
trial  will  lie  on  that  ground.  Black  v. 
Harrison  Home  Co.,  155  Cal.  121;  99  Pac. 
494.  Where  the  findings  sustain  the  judg- 
ment, the  court's  failure  to  find  on  other 
issues  becomes  immaterial  on  appeal,  if  a 
finding  thereon  in  favor  of  the  appellant 
could  not  have  changed  the  judgment. 
Fogg   V.   Perris   Irrigation   Dist.,    154    Cal. 


1103 


REVIEW  OF  FINDINGS — EVIDENCE  AS  TO. 


§950 


209;  97  Pac.  316.  The  absence  of  a  finJ- 
iug  upon  an  issue  not  proveil,  or  the  failure 
of  the  court  to  act  in  the  absence  of  evi- 
dence sustaining  its  action,  constitutes  no 
error.  Murray  Show  Case  etc.  Co.  v.  Sul- 
livan, 15  Cal.  App.  475;  115  Pac.  259. 
Where  the  findings  sustain  the  judgment, 
a  failure  to  find  on  other  issues  is  imma- 
terial. Fogg  V.  Perris  Irrigation  Dist.,  154 
Cal.  209;  97  Pac.  316. 

Construction  of  findings.  The  findings 
are  to  lie  read  as  a  whole  (Flora  v.  Bimini 
Water  Co.,  161  Cal.  495;  119  Pac.  661); 
and  should  be  so  construed,  if  possible, 
as  to  uphold  the  judgment.  People  v. 
Quong  Sing,  20  Cal.  App.  26,  806;  127  Pac. 
1052,  1056;  Eossi  v.  Beaulieu  Vineyard, 
20  Cal.  App.  770;  130  Pac.  201;  Parker  v. 
Herndon,  19  Cal.  App.  451;  126  Pac.  183; 
W^agner  v.  El  Centre  Seed  etc.  Co.,  17  Cal. 
App.  387;  119  Pac.  952;  Flora  v.  Bimini 
Water  Co.,  161  Cal.  495;  119  Pac.  661; 
People  V.  McCue,  150  Cal.  195;  88  Pac.  899; 
Lomita  Land  etc.  Co.  v.  Eobinson,  154  Cal. 
36;  18  L.  K.  A.  (N.  S.)  1106;  97  Pac.  10. 
Where  the  appeal  is  upon  the  judgment 
roll  alone,  the  language  of  the  findings  is 
to  be  given  the  broadest  possible  meaning, 
when  that  is  necessary  to  support  the 
judgment.  Bell  v.  Adams,  150  Cal.  772; 
90  Pac.  118.  Findings  in  favor  of  the 
judgment  are  not  to  be  taken  as  absolutely 
true,  as  against  the  party  for  whom  the 
judgment  went.  Schroeder  v.  Schweizer 
Lloyd  etc.  Gesellschaft,  60  Cal.  467;  44 
Am.  Rep.  61. 

Review  of  findings.  Immaterial  findings 
need  not  be  considered  on  appeal.  Zihn  v. 
Zihn,  153  Cal.  405;  95  Pac.  868.  An  erro- 
neous finding  is  without  prejudice,  where 
the  judgment  gives  to  the  appellant  all 
the  reljef  to  which  he  would  be  entitled 
if  the  finding  were  in  his  favor.  Pugh  v. 
Moxley,  164  Cal.  374;  128  Pac.  1037. 
Where  a  finding  upon  a  material  issue  is 
without  evidence  to  support  it,  there  must 
be  a  new  trial.  Kaiser  v.  Barron,  153  Cal. 
474;  95  Pac.  879.  In  the  absence  of  a  bill 
of  exceptions  or  statement  of  the  case,  the 
findings  of  fact  made  by  the  lower  court 
are  conclusive  upon  appeal.  Bradley  Bros. 
V.  Bradley,  20  Cal.  App.  1;  127  Pac.  1044. 

Sufficiency  of  findings.  See  note  ante, 
§648. 

Presumptions  on  review  as  to  filing  of 
pleading.  Where  objection  is  made  that 
new  j)arties  plaintiff  and  defendant  were 
joined  in  an  amended  complaint  without 
leave  of  court,  it  must  be  presumed  upon 
appeal  that  the  amended  complaint  was 
filed  by  leave  of  court.  Harvey  v.  Meigs, 
17  Cal.  App.  353;  119  Pac.  941. 

As  to  extension  of  time.  Where  objec- 
tion is  made  for  the  first  time  on  appeal, 
to  the  consideration  of  a  bill  of  excep- 
tions, for  the  reason  that  it  was  not  settled 
and  allowed  in  time,  it  must  be  presumed 
that  the  time  was  extended  by  stii^ulation 


or  order  of  the  court.  Shoppard  v.  Shep- 
pard,  15  Cal.  App.  614;  115  Pac.  751. 

As  to  error.  The  presumption  is  in 
favor  of  the  regularity  of  the  proceedings 
of  the  court  below.  Shoppard  v.  Sheppard, 
15  Cal.  A])p.  614;  115  Pac  751;  Estate  of 
Young,  149  Cal.  177;  85  Pac.  145;  Witter 
V.  Kedwine,  14  Cal.  App.  393;  112  Pac.  311; 
Wagner  v.  United  Railroads,  19  Cal.  App. 
396;  126  Pac.  186;  Fox  v.  Mick,  20  Cal. 
App.  599;  129  Pac.  972;  Pollitz  v.  Wick- 
ersham,  150  Cal.  244;  88  Pac.  911;  Lomita 
Land  etc.  Co.  v.  Robinson,  154  Cal.  52; 
18  L.  R.  A.  (N.  S.)  1106;  97  Pac.  10;  Fox 
V.  Townsend,  149  Cal.  659;  87  Pac.  82. 
Error  is  not  presumed.  Title  Insurance 
etc.  Co.  V.  California  Development  Co.,  164 
Cal.  58;  127  Pac.  502.  The  trial  court 
has  discretion  to  permit  leading  questions; 
and  where  the  record  indicates  no  abuse 
thereof,  no  prejudicial  error  will  be  pre- 
sumed. Kinney  v.  Maryland  Casualty  Co., 
15  Cal.  App.  571;  115  Pac.  456.  Upon  ap- 
peal from  an  order  vacating  an  allowance 
of  attorneys'  fees  in  a  divorce  suit,  all  pre- 
sumptions are  in  favor  of  the  order.  Glass 
V.  Glass,  4  Cal.  App.  604;  88  Pac.  734. 

As  to  evidence  and  findings.  The  pre- 
sumption on  appeal  is,  that  findings  sjieak 
the  truth  (O'Connell  v.  Behan,  19  Cal.  App. 
Ill;  124  Pac.  1038);  that  there  was  evi- 
dence to  support  the  findings,  and  that  it 
was  sufficient  (Semi-Tropic  Spiritualists 
Ass'n  v.  Johnson,  163  Cal.  639;  126  Pac. 
488;  Newmire  v.  Ford,  20  Cal.  App.  337; 
128  Pac.  952;  Estate  of  Olson,  19  Cal.  App. 
379;  126  Pac.  171;  O'Connell  v.  Behan,  19 
Cal.  App.  Ill;  124  Pac.  1038;  California 
Portland  Cement  Co.  v.  Wentworth  Hotel 
Co.,  16  Cal.  App.  692;  118  Pac.  103);  that 
no  objection  was  made  to  the  introduction 
of  evidence  upon  which  findings  were  made 
(California  Portland  Cement  Co.  v.  Went- 
worth Hotel  Co.,  16  Cal.  App.  692;  118  Pac. 
103);  that  a  conflict  of  evidence  was  re- 
solved, by  the  jury,  in  favor  of  the  pre- 
vailing party  (Gjurich  v.  Fieg,  164  Cal. 
429;  129  Pac.  464);  that  findings  were 
waived,  where  none  appear,  upon  an  ap- 
peal from  the  judgment,  upon  the  judg- 
ment roll  alone.  Kritzer  v.  Tracy  En- 
gineering Co.,  16  Cal.  App.  287;  116  Pac. 
700.  Where  findings  are  waived,  the  ap- 
pellate court  must  assume  that  the  trial 
court  found  every  fact  necessary  to  sup- 
port the  judgment.  Jones  v.  Grieve,  15 
Cal.  App.  561;  115  Pac.  333.  The  want 
of  a  finding  on  an  issue  will  be  presumed, 
in  the  absence  of  a  showing  to  the  con- 
trary, to  be  the  result  of  a  failure  to  offer 
any  evidence  in  support  of  such  issue. 
Schoonover  v.  Birnbaum,  150  Cal.  734;  89 
Pac.  1108.  It  will  be  presumed  that,  on 
a  motion  to  dismiss  an  action,  where  the 
affidavits  were  conflicting,  the  court  below 
found  the  facts  to  be  as  asserted  by  the 
moving  and  prevailing  party.  Witter  v. 
Phelps,  163  Cal.  655;  126  Pac. '593. 


§956 


APPEALS   IN   GENERAL. 


1104 


As  to  instructions.  It  will  be  presumed 
on  appeal,  that  instructions  refused  were 
substantially  embodied  in  those  given 
(Patton  V.  Klemmer,  15  Cal.  App.  459; 
115  Pac.  62) ;  that  instructions  given  were 
applicable  to  the  proofs  (Cook  v.  Subur- 
ban Eealty  Co.,  20  Cal.  App.  538;  129  Pac. 
801);  that  instructions  refused  were  prop- 
erly disallowed.  Cook  v.  Suburban  Eealty 
Co.,  20  Cal.  App.  538;  129  Pac.  801. 

As  to  verdict.  All  presumptions  are  in 
favor  of  the  general  verdict.  Petersen  v. 
California  Cotton  Mills  Co.,  20  Cal.  App. 
751;  130  Pac.  169.  A  verdict  based  on 
conflicting  evidence  will  not  be  disturbed 
on  appeal,  if  there  is  any  substantial  evi- 
dence to  support  it:  it  must  be  assumed 
that  the  jury  resolved  the  conflict  in  favor 
of  the  prevailing  party.  Gjurieh  v.  Fieg, 
164  Cal.  429;  129  Pac.  464;  Leavens  v. 
Pinkham,  164  Cal.  242;  128  Pac.  399;  Per- 
kins V.  Blauth,  163  Cal.  782;  127  Pac.  50; 
Hall  V.  Clark,  163  Cal.  392;  125  Pac.  1047; 
Black  V.  Eiley,  20  Cal.  App.  199;  128  Pac. 
764. 

As  to  judgment.  Upon  an  appeal  upon 
the  judgment  roll  alone,  all  intendments 
are  in  support  of  the  judgment;  and  all 
proceedings  necessary  to  its  validity  are 
presumed  to  have  been  regularly  taken; 
and  any  matters  that  might  have  been 
presented  to  the  court  below,  that  would 
have  authorized  the  judgment,  will  be  pre- 
sumed to  have  been  thus  presented.  Seger- 
strom  V.  Scott,  16  Cal.  App.  260;  116  Pac. 
690.  On  appeal,  error  cannot  be  presumed 
from  the  absence  of  findings:  on  the  con- 
trary, every  intendment  goes  to  support 
the  judgment.  Kritzer  v.  Tracy  Engineer- 
ing Co.,  16  Cal.  App.  287;  116  Pac.  700. 
In  a  controversy  involving  a  homestead, 
it  will  be  presumed,  in  support  of  the 
judgment,  that  the  homestead  was  owned 
in  joint  or  common  tenancy  by  a  husband 
and  wife.  Sewell  v.  Price,  164  Cal.  265; 
128  Pac.  407.  It  will  be  presumed,  on  an 
appeal  from  a  second  judgment,  that  the 
former  judgment  was  for  good  cause  set 
aside.  Von  Schmidt  v.  Von  Schmidt,  104 
Cal.  547;  38  Pac.  361. 

As  to  service  of  notice  of  judgment. 
Where  the  record  fails  to  show  that  any 
notice  of  entry  of  judgment  was  served  on 
appellants,  it  must  be  assumed  that  no  such 
notice  was  served.  Fraser  v.  Sheldon,  164 
Cal.  165;  128  Pac.  33. 

As  to  motion  for  new  trial.  It  cannot 
be  presumed  on  appeal  that  a  motion  for 
a  new  trial  was  made  upon  the  ground 
that  the  decision  was  one  "against  law." 
Great  Western  Gold  Co.  v.  Chambers,  153 
Cal.  307;  95  Pac.  151. 

As  to  new-trial  orders.  It  will  be  as- 
sumed upon  appeal,  that  no  other  valid 
ground  for  a  new  trial  exists  than  that 
specified  in  the  order  granting  it  (Piercy 
V.  Piercy,  149  Cal.  163;  86  Pac.  507);  that 
an  order  denying  a  motion  for  a  new  trial 


was  made  upon  the  merits  (Boin  v.  Spreek- 
els  Sugar  Co.,  155  Cal.  612;  102  Pac.  937); 
that  a  settled  statement,  upon  which  the 
court  acted  in  rendering  its  decision,  and 
in  granting  a  new  trial,  constitutes  a  cor- 
rect statement  of  the  evidence.  McCann 
V.  McCann,  20  Cal.  App.  504;  129  Pac.  966. 

As  to  ordinance.  The  presumption  is, 
that  an  ordinance  proved  is  in  force,  until 
the  contrary  is  shown.  Wagner  v.  United 
Eailroads,  19  Cal.  App.  396;  126  Pac.  186. 

Legality  of  documents  presumed.  As  a 
city,  in  making  street  improvements,  is 
authorized  to  act  only  in  conformity  with 
the  statute,  it  must  be  assumed  that  a 
contract  for  street-work,  and  the  bond 
given  in  connection  therewith,  were  made 
in  compliance  with  the  statute,  particu- 
larly where  the  bond,  in  its  terms,  was 
phrased  according  to  the  statutory  require- 
ment. Eepublic  Iron  etc.  Co.  v.  Patillo,  19 
Cal.  App.  316;  125  Pac.  923. 

Injury  presumed  from  delay.  Injury  is 
presumed  from  an  unreasonable  delay  in 
prosecuting  an  action.  Gray  v.  Times- 
Mirror  Co.,  11  Cal.  App.  155;  104  Pac.  481. 

Objection  that  judgment  is  not  supported 
by  complaint  or  findings.  The  defect  that 
neither  the  complaint  nor  the  findings  sup- 
port the  judgment  may  be  reviewed  on 
appeal  from  the  judgment.  Van  Buskirk 
V.  Kuhns,  164  Cal.  472;  129  Pac.  587. 
Upon  an  appeal  upon  the  judgment  roll 
and  a  bill  of  exceptions,  where  the  record 
does  not  contain  the  evidence,  the  appel- 
late court  is  limited  to  a  consideration  of 
the  question  whether  the  findings  of  fact 
support  the  conclusions  of  law  and  the 
judgment  subsequently  rendered  and  en- 
tered thereon.  O'Counell  v.  Behan,  19  Cal. 
App.  Ill;  124  Pac.  1038.  The  claim  that 
the  findings  do  not  support  the  judgment 
is  not  available  on  motion  for  a  new  trial. 
Black  V.  Harrison  Home  Co.,  155  Cal.  121; 
99  Pac.  494. 

Time  of  appeal  as  affecting  review. 
Upon  an  appeal  perfected  under  §  941b, 
ante,  any  question  may  be  reviewed,  in- 
cluding the  claim  that  the  evidence  does 
not  sustain  the  findings,  which  could  be 
reviewed  upon  an  appeal  under  §  939,  ante, 
within  sixty  days  after  the  rendition  of 
the  judgment.  Fraser  v.  Sheldon,  164  Cal. 
165;  12S  Pac.  33.  An  appeal  taken  and 
perfected  under  §§  941a  and  941b,  ante, 
within  six  months  from  the  entry  of  judg- 
ment, is  in  season  to  permit  a  considera- 
tion and  review  of  the  evidence,  or  for 
any  other  purpose.  Larson  v.  Larson,  15 
Cal.  App.  531;  115  Pac.  340.  On  appeal 
from  the  judgment,  within  sixty  days  after 
its  entry,  the  insufficiency  of  the  evidence 
to  sustain  the  findings  may  be  reviewed 
under  a  proper  bill  of  exceptions.  Eussell 
V.  Banks,  11  Cal.  App.  450;  105  Pac.  261. 
On  an  appeal  from  the  judgment,  taken 
within  sixty  days  after  its  rendition,  the 
statement  on  motion  for  a  new  trial,  set- 


1105 


MATTERS  NOT  IX  RECORD. 


§956 


tied  and  filed  after  the  date  of  the  order 
denying  a  new  trial,  may  be  used  for  the 
purpose  of  determining  the  sufficiency  of 
the  evidence.  Blood  v.  La  Serena  Land 
etc.  Co.,  150  Cal.  764;  89  Pac.  1090.  The 
sufficiency  of  the  eviilence  to  sustain  the 
decision  cannot  be  considered  under  §  9;59, 
ante,  on  an  appeal  taken  more  than  si.xty 
days  after  the  entry  of  judgment.  Mor- 
com  V.  Baiersky,  16  Cal.  App.  480;  117 
Pac.  .^eO;  Union  Lumber  Co.  v.  Sunset 
Road  Oil  Co.,  17  Cal.  Ai)p.  460;  120  Pac. 
44;  Andrews  v.  Wheeler,  10  Cal.  App.  014; 
103  Pac.  144;  Kellv  v.  Ning  Yung  Benevo- 
lent Ass'n,  138  Cal.  602;  72  Pac.  148. 
Errors  of  law  may  be  reviewed  on  an  ap- 
peal from  a  judgment  taken  within  six 
months,  and  more  than  sixty  days  from 
the  time  of  its  entry.  Union  Lumber  Co. 
V.  Sunset  Road  Oil  Co.,  17  Cal.  App.  400; 
120  Pac.  44.  Where  the  appeal  is  not 
taken  within  sixty  daj-s  after  the  entry 
of  judgment,  the  case  is  before  the  appel- 
late court,  not  on  the  sufficiency  of  the 
evidence,  but  on  its  competency  and  ad- 
missibility alone.  Andrews  v.  Wheeler,  10 
Cal.  App.  014;  103  Pac.  144.  A  statement, 
containing  rulings  excei)ted  to  at  the  trial, 
may  be  reviewed,  as  to  such  rulings,  uy)on 
an  appeal  from  the  judgment  taken  after 
the  lai)se  of  sixty  days.  Kelly  v.  Ning 
Yung  Benevolent  "^ Ass'n,  13S  Cal.  602;  72 
Pac.  14S. 

Time  for  appeal  to  review  sufficiency  of 
evidence.   See  also  note  ante,  §  939. 

Matters  not  in  record.  Matters  not 
shown  by  the  record  are  not  involved  on 
an  appeal,  and  cannot  be  considered. 
Fresno  Planing  Mill  Co.  v.  Manning,  20 
Cal.  App.  766;  130  Pac.  196.  Testimony 
not  made  a  part  of  the  record  cannot  be 
considered  on  appeal.  People  v.  Ernsting, 
14  Cal.  App.  70S;  112  Pac.  913.  Where  a 
defendant  is  not  entitled  to  have  the  testi- 
mony incorporated  in  the  transcript,  tl^e 
mere  fact  that  it  is  inserted  in  the  record 
does  not  warrant  the  court  in  reviewing  or 
considering  it  for  any  purpose.  Crackel  v. 
Crackel,  17  Cal.  App.  600;  121  Pac.  295. 
An  objection  to  the  admission  of  evidence 
must  specify  the  grounds  on  which  it  is 
based:  in  the  absence  of  such  specification 
in  the  record,  a  ruling  admitting  the  evi- 
dence will  not  be  deemed  injurious.  Hardy 
V.  Schirmcr,  163  Cal.  272;  124  Pac.  993. 
The  appellate  court  will  not  review  an  ob- 
jection to  a  judgment,  if  there  is  no  show- 
ing whatever  in  the  record  on  apjieal  that 
the  objection  is  tenable.  Segerstrom  v. 
Scott,  'l6  Cal.  App.  200;  116  Pac.  690. 
Error  not  shown  by  the  record  cannot  be 
reviewed.  National  Bank  v.  Mulford,  17 
Cal.  App.  551;  120  Pac.  446;  West  v. 
Mears,  17  Cal.  App.  718;  121  Pac.  700. 
Alleged  error  in  the  admission  of  a  certain 
judgment  roll  in  evidence  will  not  be  con- 
sidered if  the  roll  is  not  incorporated  in 
1  Fair. — 70 


the  record.  Robinson  v.  Muir,  151  Cal. 
118;  9(J  Pac.  521.  A  map,  not  in  the  rec- 
ord, cannot  be  considered  on  appeal,  for 
any  purpose.  Callatin  v.  Corning  Irriga- 
tion Co.,  163  Cal.  405;  Ann.  Cas.  1914A,  74; 
126  Pac.  864.  The  a|)i)e]latc  court  will 
not,  in  advance  of  a  hearing  of  an  appeal 
on  its  merits,  consider  a  motion  to  strike 
from  the  transcript  matters  contained 
tlierein,  on  the  ground  that  tliey  were 
not  ]iroi)erly  authenticated;  if,  upon  a  con- 
sideration of  the  appeal,  such  matters 
have  no  place  in  the  record,  they  will  be 
disregarded.  Erode  v.  Goslin,  158  Cal.  (599; 
112  Pac.  280. 

Not  in  bill  of  exceptions  or  statement. 
Krror  in  excluding  evidmce  cannot  Ije 
shown  until  the  materialit}'*  of  the  |)ro- 
l)osed  evidence  appears  in  a  bill  of  excep- 
tions. Estate  of  Angle,  148  Cal.  102;  82 
Pac.  608.  On  ai)j>eal  taken  *upon  a  duly 
authenticated  bill  of  exceptions,  affidavits 
not  referred  to  nor  included  in  such  bill 
cannot  be  considered.   Schroeder  v.  Mauzy, 

16  Cal.  App.  451;  118  Pac.  459.  On  ap- 
peal, taken  only  upon  the  judgment  roll, 
without  any  statement  of  evidence  or  bill 
of  exceptions,  an  affidavit  cannot  be  used 
to  supply  any  matter  which  should  have 
been  presented  in  either  of  the  last- 
mentioned  forms.  B;  in  v.  National  Union 
Fire  Ins.  Co.,  19  Cal.  App.  778;  127  Pac. 
829. 

Matters  not  argued.  Rulings  and  alleged 
errors,  merely  referred  to  but  not  argued 
in  appellant's  brief,  will  receive  scant 
notice.  Perry  v.  Ayers,  159  Cal.  414;  114 
Pac.  46;  Dore  v.  Southern  Pacific  Co.,  163 
Cal.  182;  124  Pac.  817.  Errors  assigned, 
but  not  urged  or  argued  on  appeal,  will 
not  be  noticed.    National  Bank  v.  Mulford, 

17  Cal.  App.  551;  120  Pac.  446.  A  point 
presented  by  merely  stating  that  the  dourt 
erred,  citing  the  page  of  the  transcript, 
but  not  arguing  the  matter,  will  not  be 
considered.  Madeira  v.  Sonoma  Magnesite 
Co.,  20  Cal.  App.  719;  130  Pac.  175. 

Not  in  judgment  roll.  A  minute-entry 
by  the  clerk,  which  forms  no  part  of  the 
judgment  roll,  cannot  be  considered  for 
any  purpose,  upon  an  appeal  taken  upon 
the  judgment  roll  alone,  although  a  copy 
of  such  entry  is  brought  up  in  the  tran- 
script. Kritzer  v.  Tracy  Engineering  Co., 
16  Cal.  Apj).  2S7:  116  Pac.  7nO. 

Review  of  unauthenticated  record.  A 
record,  not  authenticated  either  as  required 
by  a  rule  of  court  or  any  provision  of  law, 
cannot  be  considered  on  ajijieal.  Harrison 
V.  Cousins,  10  ('al.  App.  516;  117  Pac.  564. 

Order  dismissing  action.  On  api>eal 
from  an  order  dismissing  an  action  for 
want  of  prosecution,  the  facts  ujion  which 
the  court  exercised  its  discretion  in  mak- 
ing such  order  may  be  reviewed,  but  the 
fact  that  a  cause  of  action  may  be  shown 
to  exist  in  favor  of  the  plaintiff  will  not 


956 


APPEALS   IN    GENERAL. 


1106 


be  considered.  Bell  v.  Solomons,  162  Cal. 
105;  121  Pac.  377. 

Eefusing  to  transfer  cause.  An  order 
refusing  the  transfer  of  a  cause  to  the 
Federal  courts  can  be  reviewed  upon  an 
appeal  from  the  final  .-judgment,  as  an  in- 
termediate order.  Tripp  v.  Santa  Rosa 
Street  R.  R.,  69  Cal.  631;  11  Pac.  219. 

Rulings  regarding  testimony.  Rulings 
made  during  the  progress  of  the  trial,  re- 
fusing to  strike  out  testimony,  may  be 
reviewed  on  an  appeal  from  the  judgment, 
if  properly  presented  by  the  record. 
Leavens  v.  Pinkham  &  McKevitt,  164  Cal. 
242;  128  Pac.  399. 

Exception  to  verdict.  Exceptions  to  the 
phraseology  of  questions  in  a  special  ver- 
dict, not  reserved,  cannot  be  considered  on 
appeal.  Napa  Valley  Packing  Co.  v.  San 
Francisco  Re^ef  etc.  Funds,  16  Cal.  App. 
461;  118  Pac.  469. 

Rehearing.  The  application  of  a  re- 
spondent for  a  rehearing  in  the  supreme 
court,  that  he  may  be  relieved  from  the 
consequences  of  his  omission  to  supply  cer- 
tain evidence  in  the  district  court  of  ap- 
peal having  original  jurisdiction  of  the 
appeal,  will  be  denied:  he  should  have 
sought  that  relief  in  the  district  court 
of  appeal.  Brown  v.  Coffee,  17  Cal.  App. 
386;  121  Pac.  309. 

Decision,  what  constitutes.  See  note 
ante,  §  633. 

Review  under  alternative  plan  of  ap- 
peal.   See  note  ante,  §  953c. 

Raising  question  of  variance  on  appeal. 
See  note  ante,  §  469. 

Judgment  raising  moot  question.  An 
appeal  from  a  judgment,  which  raises 
merely  a  moot  question,  will  not  be  con- 
sidered. Bradley  v.  Voorsanger,  143  Cal. 
214;  76  Pac.  1031. 

Judgment  or  order  by  consent.  A  judg- 
ment or  order  by  consent  will  not  be  re- 
viewed on  appeal  (Erlanger  v.  Southern 
Pacific  R.  R.  Co.,  109  Cal.  395;  42  Pac. 
31)  by  a  party  who  expressly  consented 
to  the  making  thereof.  Hibernia  Sav.  & 
L.  Soc.  v.  Waymire,  152  Cal.  286;  92  Pac. 
645. 

Order  refusing  to  vacate  order.  An  or- 
der refusing  to  vacate  an  order  substi- 
tuting a  person  as  plaintiff  is  reviewable 
only  upon  appeal  from  the  final  judgment. 
Grant  v.  Los  Angeles  etc.  Ry.  Co.,  116  Cal. 
71;  47  Pac.  872. 

Regarding  nonsuit.  An  order  granting 
a  motion  for  a  nonsuit  can  be  reviewed 
either  upon  an  appeal  from  the  judgment 
based  on  the  order  of  nonsuit,  or  upon 
an  appeal  from  the  order  denying  a  new 
trial.  Converse  v.  Scott,  137  Cal.  239;  70 
I'ac.  13.  The  granting  of  a  nonsuit  may 
be  reviewed  on  appeal,  as  error  of  law, 
where  it  was  excepted  to  and  specified  as 
such.  Martin  v.  Southern  Pacific  Co.,  150 
Cal.  124;  88  Pac.  701.  An  order  denying 
a  motion  for  a  nonsuit   may  be  reviewed 


on  an  appeal  from  the  judgment,  if  prop- 
erh'  presented  by  the  record.  Leavens  v. 
Pinkham  &  McKevitt,  164  Cal.  242;  128 
Pac.  399;  Fraser  v.  Sheldon,  164  Cal.  165; 
128  Pac.  33.  In  reviewing  an  order  deny- 
ing the  defendant's  motion  for  a  nonsuit, 
only  the  grounds  stated  therefor  in  the 
trial  court  can  be  considered  or  reviewed 
on  appeal.  Schroeder  v.  Mauzy,  16  Cal. 
App.  443;  118  Pac.  459;  Blood  v.  La  Serena 
Land  etc.  Co.,  150  Cal.  764;  89  Pac.  1090. 
The  reviewing  court  is  not  at  liberty  to 
consider  any  ground  of  nonsuit,  not  stated 
in  the  motion  therefor.  Breidenbach  v. 
M.  McCormick  Co.,  20  Cal.  App.  184;  128 
Pac.  423.  The  denial  of  a  motion  for  a 
nonsuit  will  not  be  disturbed  on  appeal, 
although  the  evidence,  at  the  close  of  the 
plaintiff's  case,  was  so  weak  that  it  might 
properly  have  been  granted,  if,  upon  the 
trial,  the  defect  is  overcome  by  evidence 
subsequentlv  introduced.  Peters  v.  South- 
ern Pacific  Co.,  160  Cal.  48;  116  Pac.  400. 

Regarding  cost-bill.  An  order  striking 
out  a  cost-bill  and  retaxing  the  costs  may 
be  reviewed  on  an  appeal  from  the  judg- 
ment, although  the  amount  involved  was 
less  than  three  hundred  dollars.  Quitzow 
V.  Perrin,  120  Cal.  255;  52  Pac.  632;  and 
see  Empire  Gold  Mining  Co.  v.  Bonanza 
Gold  Mining  Co.,  67  Cal.  406;  7  Pac.  810. 

Regarding  injunctions.  An  order  refus- 
ing to  dissolve  a  preliminary  injunction  is 
reviewable  on  an  appeal  from  a  final  judg- 
ment granting  a  permanent  injunction. 
Tehama  County  v.  Sisson,  152  Cal.  167;  92 
Pac.  64. 

Regarding  receivers.  An  order,  pending 
suit,  authorizing  a  receiver  to  take  charge 
of  and  conduct  a  business,  should  be  re- 
viewed upon  an  appeal  from  the  judgment. 
Free  Gold  Mining  Co.  v.  Spiers,  135  Cal. 
130;  67  Pac.  61.  An  order,  made  before 
judgment,  approving  the  account  of  a  re- 
ceiver in  foreclosure  proceedings,  and 
allowing  claims  against  the  receiver,  is 
reviewable  only  upon  an  appeal  from  the 
final  judgment  in  the  action.  Illinois  Trust 
etc.  Bank  v.  Pacific  Ry.  Co.,  99  Cal.  408; 
33  Pac.  1132. 

Order  appointing  receiver.  An  order, 
made  before  judgment,  appointing  a  re- 
ceiver, is  not  reviewable  upon  an  appeal 
from  a  final  judgment.  La  Societe  Fran- 
gaise  v.  District  Court,  53  Cal.  495. 

In  probate.  Upon  an  appeal  from  an 
order  settling  an  administrator's  account, 
all  the  proceedings  leading  up  to  it,  in- 
cluding the  evidence  upon  which  it  is 
based,  are  open  to  review.  Estate  of  Rose, 
80  Cal.  166;  22  Pac.  86.  On  appeal  from 
an  order  of  sale  of  community  property 
under  a  power  in  the  husband's  will,  error 
in  including  the  wife's  interest  in  the 
order  may  be  reviewed,  though  the  order 
is  valid  as  to  the  husband's  interest.  Es- 
tate of  Wickersham,  7  Cal.  Unrep.  70;  70 
Pac.  1079. 


1107 


ORDERS — INTERLOCUTORY  DECREE — ERROR. 


§056 


Orders  in  probate.  An  order  disniissinfj 
a  contest  to  the  j)robate  of  a  will  is  re- 
viewable uj)on  appeal  from  the  final  order 
or  judgment  admitting  the  will  to  probate. 
Estate  of  Edelman,  ]48  Cal.  233;  113  Am. 
St.  Rep.  231;  82  Pac.  9G2.  An  order  set- 
ting aside  a  decree  settling  the  final  ac- 
count of  an  executor,  although  not  directly 
appealable,  may  be  reviewed  on  an  appeal 
by  the  executor  from  a  subsequent  decree 
settling  his  final  account,  it  being  an  inter- 
mediate order  affecting  the  judgment. 
Estate  of  C'ahalan,  70  Cal.  604;  12  Pac.  427. 

Order  regarding  attachments.  Upon  an 
appeal  from  a  final  judgment,  the  court 
cannot  review  an  order  refusing  to  dis- 
solve an  attachment.  Allender  v.  Fritts, 
24  Cal.  447.  An  order  dissolving  an  at- 
tachment after  an  erroneous  order  of  non- 
suit, is  not  reviewable  upon  appeal  from 
the  judgment  of  nonsuit.  Kennedy  v. 
Meriekel,  8  Cal.  App.  378;  97  Pac."  81. 
Irregularities  in  an  attachment,  as  to  ita 
inception  or  form,  must  be  considered  on 
a  direct  appeal  from  an  order  refusing  to 
dissolve  the  attachment,  and  not  on  an 
appeal  from  the  judgment.  Mudge  v.  Stein- 
hart,  78  Cal.  34;  12  Am.  St.  Eep.  17;  20 
Pac.  147. 

Orders  in  partition.  Upon  appeal  from 
an  order  confirming  a  sale  in  an  action 
of  partition,  any  error  occurring  in  or 
prior  to  the  decree  of  partition,  which  is 
appealable,  cannot  be  reviewed;  and  the 
question  whether  the  complaint  does  or 
does  not  state  facts  sufficient  to  support 
that  decree,  or  whether  the  court  failed 
to  find  upon  a  material  issue  tendered  in 
an  answer  of  the  appellant,  cannot  be  con- 
sidered upon  such  appeal.  Holt  v.  Holt, 
131  Cal.  610;  63  Pac.  912. 

Interlocutory  decree.  An  interlocutory 
decree  cannot  be  reviewed  upon  an  appeal 
from  the  final  judgment.  Lorenz  v.  Jacobs, 
53  Cal.  24;  and  see  Barry  v.  Barry,  56  Cal. 
10.  An  interlocutory  judgment  in  divorce 
is  not  reviewable  on  appeal  from  a  final 
judgment:  an  appeal  from  that  determina- 
tion is  given  by  the  act  providing  for 
such  judgment.  Deyoe  v.  Superior  Court, 
140  Cal.  476;  98  Am.  St.  Rep.  73;  74  Pac. 
28.  Where  a  defendant  in  a  divorce  suit 
defaults,  and  appeals  from  the  interlocu- 
tory decree,  he  is  not  entitled  to  have  any 
bill  of  exceptions  settled,  or  certification 
of  evidence;  the  only  question  that  can 
be  considered  on  such  appeal  is  a  legal 
one,  and  the  appellate  court  is  limited  in 
its  examination  to  any  questions  arising 
upon  the  judgment  roll,  consisting  of  the 
papers  mentioned  in  §  670,  ante.  Crackel 
v.  Crackel,  17  Cal.  App.  600;  121  Pac.  295. 
An  interlocutory  decree  in  an  action  of 
partition  cannot  be  reviewed  upon  an  ap- 
peal from  the  final  judgment.  Barry  v. 
Barry,  56  Cal.  10;  Holt  v.  Holt,  131  Cal. 
610;  63  Pac.  912. 

Bill  of  exceptions.  An  unauthenticated 
bill  of  exceptions  cannot  be  considered  on 


appeal,  for  any  purpose  (Brode  v.  Gosslin, 
16  Cal.  App.  632;  117  Pac.  778);  nor  a  bill 
of  cxcei>tions,  not  served  within  the  time 
required  by  law.  Estate  of  Young,  149  Cal. 
173;  85  Pac.  145.  A  bill  of  exceptions, 
settled  within  the  time  required  for  its 
use  upon  an  appeal  from  the  judgment, 
may  be  considered  on  appeal,  though  origi- 
nally intended  for  use  uiton  a  motion  for 
a  new  trial,  the  proceedings  U[)on  which 
were  abandoned.  Dresser  v.  Allen,  17  Cal. 
App.  508;  120  Pac.  65.  The  effect  of  allow- 
ing an  amendment  to  a  bill  of  exceptions, 
settled  after  the  decision  is  rendered,  is 
simply  to  enable  the  appellate  court  to  re- 
view the  decision  of  the  lower  court,  in 
view  of  all  the  facts  which  that  court  had 
before  it  when  it  ma<le  its  decision.  Mer- 
ced Bank  v.  Price,  152  Cal.  697;  93  Pac. 
866. 

Consideration  of  exceptions  and  bills  of 
exceptions.    See  also  note  ante.  §  939. 

Review  of  bill  of  exceptions  or  state- 
ment.   See  also  note  ante;  §  950. 

Error.  Error  must  be  affirmatively 
shown,  before  a  judgment  can  be  disturbed. 
Title  Insurance  etc.  Co.  v.  California  De- 
velopment Co.,  164  Cal.  58;  127  Pac.  502. 
Although  the  court  may  be  precluded,  for 
good  reasons,  from  considering  an  appeal 
from  an  order  denying  a  new  trial,  yet  it 
may  consider  an  appeal  from  the  judg- 
ment, as  to  alleged  errors  of  law  occurring 
at  the  trial,  upon  the  statement  of  the  case 
used  upon  the  motion  for  a  new  trial  and 
found  in  the  record  on  appeal.  Carver  v. 
San  .Toaquin  Cigar  Co..  16  Cal.  App.  761; 
118  Pac.  92.  In  the  absence  of  specifica- 
tions of  particulars,  errors  of  law  will  not 
be  reviewed  on  appeal.  Estudillo  v.  Secu- 
rity Loan  etc.  Co.,  158  Cal.  71;  109  Pac. 
SS4. 

Harmless  error.  Constitutional  guaran- 
ties for  the  protection  of  person  or  prop- 
erty can  be  invoked  only  by  parties  whose 
rights  are  injuriously  affected  by  the 
alleged  disregard  of  such  guaranties. 
Scheerer  &  Co.  v.  Deming,  154  Cal.  138;  97 
Pac.  155.  Harmless  error  should  be  disre- 
garded on  appeal.  Estate  of  Packer,  164 
Cal.  525;  129  Pac.  778;  Navlor  v.  Ashton, 
20  Cal.  App.  544;  130  Pac.  ISl;  Lou.lell  v. 
Saoo,  20  Cal.  App.  424;  129  Pac.  478.  The 
appellate  court  will  not  undertake  to  decide 
abstract  questions  of  law,  at  the  request 
of  a  party  who  shows  no  substantial  right 
that  can  be  affected  by  a  decision  either 
way.  Streator  v.  Linscott,  153  Cal.  285; 
95  Pac.  42.  The  appellate  court  will  not 
consider  or  discuss  a  ruling  upon  a  question 
not  answered  b.v  a  witness.  People  v. 
Brown,  15  Cal.  App.  393;  114  Pac.  1004. 
Where  a  question  asked  on  cross-exam- 
ination is  not  in  fact  answered,  but  the 
answer  given  is  non-responsive  and  with- 
out injury,  the  error  is  harmless.  People 
V.  Kerr,  15  Cal.  App.  273;  114  Pac.  5S4. 
Where  the  court  has  ruled  in  favor  of  the 
plaintiff  upon  an  issue,  he  cannot  complain 


957 


APPEALS   IN    GENERAL. 


1108 


of  the  admission  of  evidence  thereupon. 
Woolwine  v.  Storrs,  148  Cal.  7;  113  Am. 
St.  Eep.  183;  82  Pae.  434.  A  ruling  ad- 
mitting evidence  is  not  deemed  injurious, 
unless  the  grounds  of  objection  thereto  are 
specified.  Hardy  v.  Schirmer,  163  Cal.  272; 
124  Pac.  993.  Rulings  of  the  trial  court, 
in  passing  upon  challenges  to  jurors  for 
cause,  will  not  be  reviewed  upon  appeal, 
unless  it  clearly  appears  that  prejudice 
resulted  therefrom  to  the  complaining 
party.  McKernan  v.  Los  Angeles  Gas  etc. 
Co.,  16  Cal.  App.  280;  116  Pac.  677.  The 
action  of  the  trial  court  in  not  allowing 
a  challenge  of  a  juror  for  bias  will  not 
be  reviewed  on  appeal,  unless  prejudice  or 
injury  is  shown.  Melone  v.  Sierra  Railway 
Co.,  151  Cal.  113;  91  Pac.  522.  An  appel- 
lant is  not  harmed  by  the  action  of  the 
court  in  submitting  erroneous  instructions, 
where  there  is  no  evidence  that  would  have 
sustained  a  finding  in  his  favor  under  the 
view  of  the  law  most  advantageous  to  him. 
Spear  v.  United  Railroads,  16  Cal.  App. 
637;  117  Pac.  956.  An  instruction,  given 
at  the  request  of  defendant,  though  erro- 
neous, will  not  be  considered  or  reviewed 
on  his  appeal.  People  v.  Arnold,  17  Cal. 
App  74;  118  Pac.  729.  Where  findings, 
actually  made,  are  sufficient  to  support  the 
judgment,  a  failure  to  find  upon  additional 
issues,  not  affecting  the  result,  is  imma- 
terial. Robinson  v.  Muir,  151  Cal.  H8;  90 
Pac.  521. 

Order  made  after  final  judgment.  An 
order  on  a  motion  to  tax  a  cost-bill,  made 
after  the  rendition  and  entry  of  final  judg- 
ment, can  be  reviewed  onlj^  on  a  direct 
appeal  from  the  order  itself.  Empire  Gold 
Mining  Co.  v.  Bonanza  Gold  Mining  Co., 
67  Cal.  406;  7  Pac.  810;  and  see  Quitzow 
V.  Perrin,  120  Cal.  255;  52  Pac.  632. 

Appealable  orders  reviewed  how.  The 
correctness  of  an  appealable  order  cannot 
be  reviewed  on  appeal  from  the  judgment. 

§  957.  Remedial  powers  of  an  appellate  court.  When  the  judgment  or 
order  is  reversed  or  modified,  the  appellate  court  may  make  complete  resti- 
tution of  all  property  and  rights  lost  by  the  erroneous  judgment  or  order, 
so  far  as  such  restitution  is  consistent  with  protection  of  a  purchaser  of 
property  at  a  sale  ordered  by  the  judgment,  or  had  under  process  issued 
upon  the  judgment,  on  the  appeal  from  which  the  proceedings  were  not 
stayed;  and  for  relief  in  such  cases  the  appellant  may  have  his  action 
against  the  respondent  enforcing  the  judgment  for  the  proceeds  of  the  sale 
of  the  property,  after  deducting  therefrom  the  expenses  of  the  sale.  When 
it  appears  to  the  appellate  court  that  the  appeal  was  made  for  delay,  it  may 
add  to  the  costs  such  damages  as  may  be  just. 


Bohn  V.  Bohn.  164  Cal.  532;  129  Pac.  791; 
Kennedy  v.  Merickel,  8  Cal.  App.  378;  97 
Pac.  81.  Upon  an  appeal  from  a  final 
judgment,  an  order,  which  is  itself  made 
by  statute  the  subject  of  a  distinct  appeal, 
cannot  be  reviewed.  Regan  v.  McMahon, 
43  Cal.  625.  In  the  absence  of  any  appeal 
from  appealable  orders,  the  action  of  the 
court  in  making  them  cannot  be  reviewed. 
De  Mitchell  v.  Croake,  20  Cal.  App.  643; 
129  Pae.  946. 

Review  on  appeal  from  judgment.  See 
note  post,  §  963. 

Order  not  involving  merits  nor  affecting 
judgment.  An  order  refusing  to  dismiss 
an  action  is  not,  in  itself,  appealable;  and 
where  it  does  not  involve  the  merits  of  the 
action,  nor  necessarily  affect  the  judgment 
rendered  therein,  nor  affect  any  substan- 
tial rights  of  the  defendant,  it  will  not 
be  reviewed  upon  appeal  from  the  judg- 
ment. Garthwaite  v.  Bank  of  Tulare,  134 
Cal.  237;  66  Pac.  326.  Where  a  decree  of 
divorce  reserves  the  question  as  to  the 
division  of  community  property  for  further 
consideration  and  adjudication,  an  order 
allowing  the  answer  to  be  amended  so  as 
more  particularly  and  specifically  to  deny 
that  there  was  any  community  property,  in 
no  way  involves  the  merits  or  necessarily 
affects  the  judgment  of  divorce,  and  is  not 
therefore  subject  to  review  on  appeal  of 
the  plaintiff  from  the  judgment  as  entered. 
Sharon  v.  Sharon,  77  Cal.  102;  19  Pac.  230. 

Power  of  appellate  court  to  consider  evidence 
not  produced  in  court  below.  See  note  9  Ann. 
Cas.  951. 

Review  on  appeal  from  final  judgment  of  inter- 
lofiitorv  n  lealable  order,  decision,  etc.,  not  there- 
tofore appealed  from.     See  note  11  Ann.  Cas.  552. 

Js,igiic  lo  review  order  granting  or  denying  mo- 
tion for  inspection  of  books  or  papers  apart  from 
appeal  from  final  judgment.  See  note  28  L.  R.  A. 
(K.  S.)    516. 


CODE    COMMISSIONERS'    NOTE. 
to  §  §  957  and  963  of  this  code. 


See   notes 


Judgment  reversed.    Post,  §  966. 
Costs  on  appeal. 

1.  Generally.    Post,  §  1034. 

2.  Costs  below,  etc.    Post,  §§  1022,   1039. 

3.  Where    modification    of    judgment.     Post, 
§  1027,  subd.  2. 

Review  on  appeal.    See  ante,  §  53. 

Legislation  §  957.     1.  Enacted  March  11,  1873. 
and   then   read:    "When   the  judgment   or  order   is 


reversed  or  modified,  the  appellate  court  may 
rnake  complete  restitution  of  all  property  and 
rights  lost  by  the  erroneous  judgment  or  order; 
and  when  it  appears  to  the  appellate  court  that 
the  appeal  was  made  for  delay,  it  may  add  to 
the   costs  such   damages  as  may  be  .just." 

3.   Amended  by  Code  Aradts.  1873-74,  p.  340. 

Construction  of  section.     This  section  is 
not  restrictive   of  the  right  of  the  appel-' 


1109 


POWER  OF  APPELLATE  COURTS — REVERSAL. 


§  957 


lant,  upon  the  reversal  of  the  judtiiiu'iit, 
to  the  reKtitutiou  of  the  projierty:  it  is  a 
remedial  statute,  aud  is  to  be  liberally 
construed.  Di  Nola  v.  .A.llison,  143  Cal.  lUU; 
101  Am.  St.  Rep.  84;  65  L.  R.  A.  419;  7(5 
Pac.  976.  It  applies  only  to  those  cases 
where  the  judgment  operates  upon  specific 
property  in  siich  -a  manner  that  its  title  is 
not  changed,  as  by  directing  the  possession 
of  real  estate,  or  the  delivery  of  documents 
or  of  particular  jiersonal  property  in  the 
hands  of  the  defendant,  and  the  like. 
Hewitt  V.  Dean,  91  Cal.  617;  25  Am.  St. 
Rep.  227;  28  Pac.  93;  aud  see  Farmer  v. 
Rogers,  10  Cal.  335.  The  rights  of  a  de- 
fendant whose  property  has  been  taken 
upon  a  judgment  which  is  subsequently 
reversed  do  not  de]iend  upon  the  jirovisions 
of  this  section.  Reynolds  v.  Harris,  14  Cal. 
667;  76  Am.  Dec.  459;  Di  Nola  v.  Allison, 
143  Cal.  106;  101  Am.  St.  Rep.  84;  65 
L.  R.  A.  419;  76  Pac.  976. 

Power  of  appellate  court.  On  appeal 
from  an  order  made  upon  affidavits,  in- 
volving the  decision  of  a  question  of  fact, 
the  appellate  court  is  bound  by  the  same 
rule  that  controls  it  where  oral  testimony 
is  presented  for  review.  Doak  v.  Bruson, 
152  Cal.  17;  91  Pac.  1001.  In  determining 
the  propriety  of  a  nonsuit,  the  appellate 
court  is  limited  to  the  consideration  of  the 
particular  grounds  upon  which  the  motion 
for  a  nonsuit  was  made.  Stanton  v.  Car- 
nahan,  15  Cal.  App.  527;  115  Pac.  339. 
The  appellate  court,  on  appeal  from  a 
part  of  a  judgment,  has  power  to  do  that 
which  justice  requires,  and  if  a  reversal 
is  ordered,  it  may  extend  it  as  far  as  may 
be  necessarv  to  accomplish  that  end. 
Whalen  v.  Smith,  163  Cal.  360;  Ann.  Cas. 
1913E,  1319;  125  Pac.  904.  The  appellate 
court  may  sustain  a  demurrer  to  the  com- 
plaint upon  other  grounds  and  for  other 
reasons  than  those  stated  in  the  court  be- 
low. Burke  v.  Maguire,  154  Cal.  456;  98 
Pac.  21;  Billesbach  v.  Larkey,  161  Cal. 
649;  120  Pac.  31.  In  reversing  the  judg- 
ment, the  appellate  court  has  power  to 
order  a  new  trial  of  the  issues.  Pollitz  v. 
Wickersham.  150  Cal.  238;  88  Pac.  911. 
Upon  an  appeal  from  the  judgment,  an  ap- 
pellate court  may  order  a  new  trial  as  to 
a  part  of  the  issues,  leaving  the  decision 
in  force  as  to  the  remainder.  Robinson  v. 
Muir,  151  Cal.  118;  90  Pac.  521.  On  ap- 
peal from  part  of  a  judgment,  where  the 
parts  not  appealed  from  are  not  so  inti- 
mately connected  with  the  part  appealed 
from  that  a  reversal  of  that  part  would 
require  a  reconsideration  of  the  whole  case 
in  the  court  below,  the  court  must  con- 
fine itself  to  the  part  appealed  from. 
Whalen  v.  Smith,  163  Cal.  360;  Ann.  Cas. 
1913E,  1319;  125  Pac.  904.  The  appellate 
court  has  power  to  issue  a  writ  of  super- 
sedeas, in  any  proper  case,  to  preserve  the 
rights  of  a  litigant  until  the  final  deter- 
mination of  his  appeal.  Reed  Orchard  Co. 
V.   Superior  Court,   19   Cal.  App.  648;    128 


Pac.  9.  The  appellate  court  has  no  power 
to  make  findings  from  the  evidence;  but 
where,  under  the  evidence,  findings  not 
made  are  necessary  to  the  projier  deter- 
mination of  the  rights  of  the  parties,  it 
will  order  a  new  trial  of  the  case.  Blood 
V.  La  Serena  Land  etc.  Co.,  113  Cal.  221; 
41  Pac.  1017.  The  appellate  court  has  no 
power  to  make  findings  of  fact;  and  where 
a  judgment  ia  reversed  for  insufficiency  of 
the  evidence  to  support  the  judgment,  a 
new  trial  must  be  awarded.  Kellogg  v. 
King,  114  Cal.  378;  55  Am.  St.  Rep.  74; 
46  Pac.  166. 

Power  of  court,  upon  remanding  cause. 
See  also  note  ante,  §  473. 

Reversal  of  judgment  for  error.  The 
ajtpellant  must  affirmatively  show  error, 
before  the  judgment  or  order  appealed 
from  will  be  reversed.  People  v.  Rhodes, 
17  Cal.  App.  789;  121  Pac.  935.  To  war- 
rant a  reversal  for  error  in  overruling  a 
demurrer  for  uncertainty  in  the  comjtlaint, 
prejudicial  error  must  be  shown.  Krieger 
V.  Feeny,  14  Cal.  App.  545;  112  Pac.  901. 
The  judgment  will  be  reversed  for  error 
of  the  court  in  striking  out  an  answer  to 
the  complaint,  which  seeks  to  have  a  for- 
feiture declared.  Knight  v.  Black,  19  Cal. 
App.  518;  126  Pac.  512.  A  judgment  dis- 
missing an  action  for  the  plaintiff's  failure 
to  appear  at  the  trial  must  be  reversed  for 
prejudicial  error,  where  it  affirmatively  ap- 
pears from  the  record  that  such  dismissal 
was  had  without  any  showing  made  to 
the  court,  of  notice  to  the  plaintiff  of  the 
time  of  trial.  Estate  of  Dean,  149  Cal. 
487;  87  Pac.  13.  A  judgment  and  order 
denying  the  appellant  a  new  trial  must  be 
reversed  for  prejudicial  error  apparent 
upon  the  record.  Musick  Consol.  Oil  Co.  v. 
Chandler,  158  Cal.  12;  109  Pac.  613.  Where 
the  court  improperly  refused,  upon  the 
appellant's  request,  to  submit  a  material 
question  for  a  special  verdict,  and  the  ap- 
pellant failed  to  move  in  time  for  judg- 
ment on  the  special  findings,  it  is  improper 
practice,  on  appeal,  to  direct  judgment  to 
be  entered  for  him,  but  the  judgment  and 
order  denying  a  new  trial  will  be  reversed 
for  error  appearing  in  the  record.  Napa 
Valley  Packing  Co.  v.  San  Francisco  Re- 
lief etc.  Funds,  16  Cal.  App.  461;  118  Pac. 
469.  Where  the  instructions  given  were 
substantially  conflicting,  there  must  be  a 
reversal  of  the  judgment.  Guthrie  v.  Car- 
ney. 19  Cal.  App.  144;- 124  Pac.  1045.  The 
judgment  cannot  be  reversed  because  of  an 
apparent  conflict  between  isolated  parts 
of  instructions,  if  all  of  them,  taken  as 
a  whole,  correctly  state  the  law  (Rialto 
Construction  Co.  v.  Reed,  17  Cal.  App.  29; 
118  Pac.  473);  nor  because  of  an  erroneous 
instruction,  unless  it  is  shown  that  harm 
resulted  therefrom.  Kirk  v.  Santa  Bar- 
bara Ice  Co.,  157  Cal.  591;  lOS  Pac.  509. 
An  error  in  omitting  to  find  upon  a  ma- 
terial fact  requires  not  only  a  reversal 
of    the   judgment,    but    also    of   the   order 


957 


APPEALS   IN    GENERAL. 


1110 


denying  a  motion  for  a  new  trial.  Lyden 
V.  Spohn-Patrick  Co.,  155  Cal.  177;  100 
Pac.  236.  The  judgment  will  not  be  re- 
versed because  of  erroneous  findings  upon 
immaterial  issues  (Forestier  v.  Johnson, 
164  Cal.  24;  127  Pac.  156;  De  Gottardi  v. 
Donati,  155  Cal.  109;  99  Pac.  492);  nor 
because  of  any  omission  in  conclusions  of 
law,  merely  as  to  matter  of  form  (Ander- 
son V.  Blean,  19  Cal.  App.  581;  126  Pac. 
859) ;  nor  for  a  slight  discrepancy  in 
items  of  costs  (Callan  v.  Empire  State 
Surety  Co.,  20  Cal.  App.  483;  129  Pac. 
978) ;  nor  because  of  erroneous  reasoning 
of  the  trial  court:  the  appellate  court  will 
uphold  the  judgment,  where  satisfied  of 
the  correctness  of  the  final  conclusion  of 
the  trial  court  (McKee  v.  Title  Insurance 
etc.  Co.,  159  Cal.  206;  113  Pac.  140);  nor 
because  of  the  exclusion  of  evidence,  where 
it  cannot  be  determined  that  such  exclu- 
sion was  erroneous.  Snowball  v.  Snowball, 
164  Cal.  476;  129  Pac.  7^4. 

For  want  of  jurisdiction.  The  judgment 
of  a  superior  court,  on  appeal  from  a  jus- 
tice's court,  rendered  without  jurisdiction, 
will  be  reversed,  with  directions  to  dismiss 
the  action  for  want  of  jurisdiction.  Bates 
V.  Ferrier,  19  Cal.  App.  79;  124  Pac.  889. 

For  abuse  of  discretion.  The  discretion 
of  the  trial  court,  under  the  former  sixth 
subdivision  of  §  581,  ante,  in  refusing  to 
dismiss  an  action  because  judgment  was 
not  entered  within  six  months  after  its 
rendition,  was  generally  upheld,  but  a 
judgment  of  dismissal  in  such  a  case  could 
be  reversed  for  an  abuse  of  discretion. 
Eickey  Land  etc.  Co.  v.  Glader,  153  Cal. 
179;  94  Pac.  768.  An  abuse  of  discretion 
must  be  shown,  to  justify  a  reversal  of 
judgment  because  of  a  ruling  either  grant- 
ing or  refusing  a,  continuance.  Marcucci 
V.  Vowinckel,  164  Cal.  693;  130  Pae.  430; 
Slieldon  v.  Landwehr,  159  Cal.  778;  116 
Pac.  44.  An  order  granting  a  new  trial 
for  want  of  evidence  to  support  the  ver- 
dict will  not  be  reversed  unless  an  abuse  of 
discretion  appears.  Estate  of  Everts,  163 
Cal.  449;  125  Pac.  1058. 

When  not  justified  by  complaint.  A  de- 
fault judgment,  in  excess  of  that  justified 
by  the  complaint,  the  amount  of  which 
excess  is  not  ascertainable  from  the  record, 
must  be  reversed,  and  remanded  for  fur- 
ther action.  First  State  Bank  v.  Blaek- 
inton,  16  Cal.  App.  141;  116  Pac.  311. 

When  not  justified  by  record.  The  ap- 
pellate court  will  not  look  beyond  the 
record  on  appeal,  and  the  judgment,  if  not 
justified  by  the  record,  will  be  reversed. 
Eeiss  V.  Brady,  2  Cal.  132. 

For  insufficiency  of  evidence.  Where 
insufficiency  of  the  evidence  is  relied  upon 
for  a  reversal,  a  general  specification, 
"that  the  evidence  is  wholly  insufficient 
to  justify  a  judgment  in  favor  of  the 
plaintiffs,"  is  improper,  as  not  giving  the 
particulars.  Eousseau  v.  Cohn,  20  Cal. 
App.  469;  129  Pac.  618. 


When    unsupported    by    findings.     The 

failure  to  find  upon  a  material  issue  is 
ground  for  a  reversal  of  the  judgment. 
Black  v.  Board  of  Police  Commissioners, 
17  Cal.  App.  310;  119  Pac.  674;  Rossi  v. 
Beaulieu  Vineyard,  20  Cal.  App.  770;  130 
Pac.  201;  Kusel  v.  Kusel,  147  Cal.  52;  81 
Pac.  297;  Lyden  v.  Spohn-Patrick  Co.,  155 
Cal.  177;  100  Pae.  236.  A  judgment  upon 
the  merits,  unsupported  by  findings,  must 
be  reversed.  Saul  v.  Moscone,  16  Cal.  App. 
506;  118  Pac.  452;  Johnson  v.  All  Night 
and  Day  Bank,  17  Cal.  App.  571;  120  Pac. 
432.  Where  the'  findings  do  not  support 
the  judgment,  there  must  be  a  reversal, 
and  the  case  remanded  for  a  new  trial 
(Fidelity  etc.  Co.  v.  Fresno  Flume  etc.  Co., 
161  Cal.  466;  37  L.  E.  A.  (N.  S.)  322;  119 
Pac.  646);  and  also  where  findings  are  not 
waived,  and  no  findings  sufficient  to  sup- 
port the  judgment  are,  by  the  court,  signed 
or  filed  in  the  cause.  Pierson  v.  Pierson,  15 
Cal.  App.  567;  115  Pac.  461.  The  failure 
of  the  court  to  find  upon  a  material  issue, 
when  properly  assigned  upon  motion  for  a 
new  trial,  requires  a  reversal  both  of  the 
judgment  and  of  the  order  denying  a  new 
trial.  Lvden  v.  Spohn-Patrick  Co.,  155 
Cal.  177;'l00  Pac.  236.  The  judgment  will 
be  reversed  where  it  aflfirmatively  appears 
that  the  findings  could  not  have  been  prop- 
erly made  in  any  possible  view  of  the  case. 
Bradley  Bros.  v.  Bradley,  20  Cal.  App.  1; 
127  Pac.  1044.  The  failure  to  find  upon 
some  issue  made  by  the  answer,  a  finding 
upon  which  would  merely  have  the  effect 
of  invalidating  a  judgment  fully  sup- 
ported by  the  findings  made,  is  not  ground 
for  reversal,  unless  it  is  shown  by  a  state- 
ment or  bill  of  exceptions  that  evidence 
was  submitted  in  relation  to  such  issue. 
People  V.  McCue,  150  Cal.  195;  88  Pac.  899. 

On  matter  of  fact  when.  The  judgment 
cannot  be  reversed  because  of  any  matter 
of  fact  not  offered  in  the  court  below. 
Wallace  v.  Eldredge,  27  Cal.  498. 

No  reversal  without  grounds.  Judgment 
will  not  be  reversed  unless  sufficient 
grounds  appear  therefor.  Hynes  v.  ATI 
Persons,  19  Cal.  App.  185;  125  Pac.  253. 

At  appellant's  instance  when.  A  judg- 
ment too  favorable  to  the  appellant  will 
not  be  reversed  at  his  instance,  where  the 
other  parties  raise  no  objections.  Stock- 
ton Lumber  Co.  v.  Schuler,  155  Cal.  411; 
101  Pac.  307. 

Reversal  of  judgment  by  consent.  A 
judgment  by  consent  will  not  be  reversed 
on  appeal.  Estate  of  Lorenz,  124  Cal.  495; 
57  Pac.  381. 

Where  reversal  fruitless.  Where  a  re- 
versal would  prove  fruitless,  the  appellate 
court  will  not  reverse  the  judgment  or  or- 
der appealed  from,  but  will  dismiss  the 
appeal.  Wright  v.  Board  of  Public  Works, 
163  Cal.  328;  125  Pac.  353.  An  order  made 
on  rival  applications  for  letters  of  admin- 
istration will  not  be  reversed  to  allow  the 
appellant  to  ofl'er  evidence  that  would  not 


1111 


EFFECT  OF  REVERSAL  OF  JUDGMENT. 


§  I).j7 


be  admissible  to  impair  the  effect  of  the 
case  made  by  the  other  applicant.  Est:ite 
of  McNeil,  155  Cal.  333;  lOU  Pac.  1086. 
Where,  upon  an  appeal  from  an  order  re- 
fusing an  injunction  pendente  lite,  the 
act  sought  to  be  enjoined  has  been  per- 
formed after  the  order  and  before  the  tlis- 
position  of  the  apj)eal,  the  order  will  not 
be  reversed,  l)ut  the  appeal  will  be  dis- 
missed. Wright  V.  Board  of  Public  Works, 
163  Lai.  328;  V25  Pac.  35:5. 

Judgment  reversed  in  part.  \  judgment 
may  be  aliirmed  iu  i)art  and  reversed  in 
part.  Nolan  v.  Hyatt,  163  Cal.  1;  124  Pac. 
439;  Delger  v.  Jacobs,  19  Cal.  App.  197; 
125  Pac.  258. 

Effect  of  reversal  of  judgment.  The 
effect  of  an  unqualified  reversal  is,  not  to 
entitle  the  appellant  to  a  judgment  upon 
the  findings,  but  to  remand  the  cause  for 
a  new  trial  (Hcidt  v.  Minor,  113  Cal.  385; 
45  Pac.  700);  therefore,  upon  an  unquali- 
fied reversal  of  the  judgment,  an  express 
direction  that  the  cause  be  remanded  for 
a  new  trial  is  unnecessary.  Falkner  v. 
Hendy,  107  Cal.  49;  40  Pac.  21.  Where 
the  judgment  is  reversed  and  the  cause  re- 
njanded  for  a  new  trial,  it  is  unnecessary 
to  review  and  pass  upon  an  objection  to 
the  complaint  which  may  be  obviated  by 
amendment.  Lissak  v.  Crocker  Estate  Co., 
119  Cal.  442;  51  Pac.  688.  The  reversal  of 
an  order  vacating  a  previous  order,  deny- 
ing a  petition  for  the  partial  distribution 
of  the  estate,  deprives  the  order  appealed 
from  of  all  vitality  and  force,  and  leaves 
the  order  denying  the  petition  in  full  force 
and  effect  until  it  is  expressly  set  aside 
or  reversed  upon  appeal.  Estate  of  Mitch- 
ell, 126  Cal.  248;  58  Pac.  549.  Upon  the 
reversal  of  a  judgment  for  an  erroneous 
overruling  of  a  demurrer  to  the  complaint, 
the  parties  are  restored  to  their  original 
rights,  and  upon  the  sustaining  of  the  de- 
murrer with  leave  to  amend,  the  plaintiff, 
instead  of  amending,  may  apply  to  the 
court  for  leave  to  dismiss  the  action  with- 
out prejudice,  and  the  court  may  order 
such  dismissal.  Richards  v.  Bradley,  129 
Cal.  670;  62  Pac.  316.  The  levy  of  a  tax, 
made  in  pursuance  of  a  judgment,  by  a 
board  of  supervisors,  is  not  set  aside  by 
the  reversal  of  the  judgment  on  appeal; 
nor  did  the  board,  by  its  compliance  with 
the  judgment,  lose  any  property  or  rights, 
of  which  restitution  could  be  made  in  case 
of  a  reversal.  San  Diego  School  District 
V.  Board  of  Supervisors,  97  Cal.  438;  32 
Pac.  517.  The  reversal  of  a  judgment,  on 
the  ground  that  it  is  not  supported  by  the 
findings,  does  not  necessarily  imply  that 
any  judgment  should  have  been  rendered 
on  such  findings.  Heidt  v.  Minor,  113  Cal. 
385;  45  Pac.  700.  A  reversal  of  judgment 
as  to  one  joint  tort-feasor  does  not  neces- 
sitate a  reversal  as  to  all  of  them.  Clark 
V.  Torchiana,  19  Cal.  App.  786;  127  Pac. 
831.     The    subsequent   reversal   of   an    un- 


stayed judgment  does  not  authorize  the 
successful  judgment  debtor  to  maintain  an 
action  against  the  sheriff  and  his  surety 
to  recover  moneys  collected  by  the  sheriff, 
and  paid  over  by  him  to  the  creditor,  peml- 
ing  an  aj)i)eal  from  the  judgment  on  which 
execution  has  not  been  stayed:  a  judg- 
ment, in  such  an  ai-tion,  against  the  sheriff 
and  his  suretv  will  be  reversed.  Maze  v. 
Langfonl,  16  Cal.  Apj),  713;  117  Pac.  929. 
An  appeal  from  a  distinct  and  indepemlent 
part  of  a  judgment  does  not  ordinarily 
bring  up  the  other  parts  for  review,  and 
a  reversal  of  the  part  appealeii  from 
does  not  affect  the  portions  not  dei)endent 
thereon:  they  will  stand  as  final  adjudica- 
tions. Whalen  v.  Smith,  163  Cal.  360;  Ann. 
Cas.  1913E,  1319;  125  Pac.  904.  The  re- 
versal of  a  judgment  foreclosing  a  mort- 
gage, with  directions  to  the  court  below 
to  enter  a  judgment  in  conformity  with 
the  opinion  of  the  supreme  court,  has  the 
effect  to  vacate  the  decree  reversed,  and  to 
leave  it  as  if  it  never  had  been  rendered, 
and  the  form  of  the  mandate  does  not 
change  the  reversal  to  a  modification,  nor 
authorize  the  trial  court  to  modify  the 
judgment  reversed;  and  this  is  so,  although 
the  reversal  directed  a  change  only  in  the 
sum  declared  due,  and  the  court  might 
have  ordered  an  affirmance  with  a  modi- 
fied judgment;  therefore  the  successor  of 
the  creditor  is  entitled  to  recover  posses- 
sion of  the  premises  sold  on  the  mortgage 
foreclosure.  Cowdery  v.  London  etc.  Bank, 
139  Cal.  298;  96  Am.  St.  Rep.  115;  73  Pac. 
196.  The  reversal  of  a  judgment  upon 
appeal  has  the  effect  to  set  aside  the  sale 
of  the  property  under  the  jmlgment,  where 
the  sale  was  made  to  the  plaintiff,  and 
the  appellant  is  restored  to  his  original 
estate  in  the  land.  Revnolds  v.  Harris,  14 
Cal.  667;  76  Am.  Dec.  459;  Di  Nola  v.  Alli- 
son, 143  Cal.  106;  101  Am.  St.  Rep.  84; 
65  L.  R.  A.  419;  76  Pac.  976.  Upon  the  re- 
versal of  the  judgment,  the  sale  to  the 
plaintiff  of  the  defendant's  property,  for 
the  satisfaction  of  the  ju<lgmont,  in  whole 
or  in  part,  will  be  set  aside.  Barnhart  v. 
Edwards,  128  Cal.  572;  61  Pac  176.  Where 
a  judgment  foreclosing  liens  for  labor  was 
reversed  so  far  as  it  awarded  counsel  fees, 
but  was  affirmed  in  other  respects,  and  no 
order  for  the  restitution  of  the  property 
sold  was  ever  made  by  the  appellate  or 
the  superior  court,  the  title  of  the  pur- 
chaser at  the  execution  sale  is  not  affected 
by  such  reversal.  Purser  v.  Cady,  5  Cal. 
Unrep.  707;  49  Pac.  180.  The  proceeds  of 
a  sale  of  property,  under  execution  on  a 
judgment  reversed  upon  appeal,  belong  to 
the  defendant:  they  cannot  constitute  pay- 
ment of  the  note  sued  on.  Carpy  v.  Dow- 
dell,  131  Cal.  499;  63  Pac.  180.  ^VLere  the 
facts  iu  the  case  are  stipulated  by  the  par- 
ties, and  the  judgment  is  reversed  upon 
appeal,  a  new  trial  will  not  be  ordered, 
but   judgment    will    be    ordered    upon    the 


957 


APPEALS   IN   GENERAL. 


1112 


stipulated  facts,  in  favor  of  tlie  opposite 
party.     Eureka    v.    McKay,    123    Cal.    666; 
56  Pae.  439. 
Effect   of   reversal   of  new-trial   orders. 

The  reversal  of  an  order  granting  a  new- 
trial  leaves  the  verdict  and  the  judgment 
standing.  Pierce  v.  Birkholm,  110  Cal.  669; 
43  Pac.  20.5.  The  reversal  of  an  order 
denying  a  new  trial  has  the  effect  to  set 
aside  the  judgment.  Estate  of  Kaufman, 
117  Cal.  288;  59  Am.  St.  Rep.  179;  49  Pac. 
192.  The  reversal  of  the  judgment  and 
the  order  refusing  a  new  trial  has  the  legal 
effect  to  vacate  the  judgment,  and  leave 
the  case  standing  for  trial  in  the  superior 
court.  Westall  v.  Altschul,  126  Cal.  164; 
58  Pae.  458.  "^'^here  the  judgment  and 
the  order  denying  a  new  trial  are  reversed, 
it  is  necessary  to  try  the  case  again.  Glas- 
sell  V.  Hansen,  149 'Cal.  511;  87  Pac.  200; 
Davis  V.  Le  Mesnager,  155  Cal.  520;  101 
Pac.  910;  Stein  v.  Leeman,  161  Cal.  502; 
119  Pac.  663.  The  reversal  of  an  order 
denying  a  new  trial,  upon  the  contest  of 
the  probate  of  a  will,  has  the  effect  to  set 
aside  the  judgment  denying  the  probate 
of  the  will.  Estate  of  Kaufman,  117  Cal. 
288;  59  Am.  St.  Eep.  179;  49  Pac.  192. 

Reversal  of  judgment.  See  also  note 
ante,  §  473. 

Modification  of  judgment.  An  excessive 
judgment  may  be  modified,  upon  the  excess 
being  remitted.  Curran  v.  Hubbard,  14 
Cal.  App.  733;  114  Pac.  81.  A  judgment 
may  be  modified,  where  there  is  a  slight 
discrepancy  in  items  of  costs.  Callan  v. 
Empire  State  Surety  Co.,  20  Cal.  App.  483; 
129  Pac.  978.  A  judgment  may  be  modi- 
fied, conditioned  upon  consent.  Clapp  v. 
Vatcher,  9  Cal.  App.  462;  99  Pac.  549.  An 
injunction  should  not  be  vacated  or  modi- 
fied without  notice,  except  in  urgent  cases, 
to  guard  against  serious  loss.  Hefflon  v. 
Bowers,  72  Cal.  270;  13  Pac.  690.  A  judg- 
ment for  damages,  based  upon  a  finding 
for  an  amount  greater  than  the  averments 
of  the  complaint,  will  not  be  reversed,  but 
modified  by  reducing  the  amount  to  that 
stated  in  the  complaint.  Kerrv  v.  Pacific 
Marine  Co.,  121  Cal.  564;  66  Am.  St.  Eep. 
65;  54  Pac.  89. 

Modification  of  judgment.  See  also  note 
ante,  §  473. 

Aflarmance  of  judgment  or  order  for  de- 
fects in  appeal.  The  judgment  will  be 
affirmed,  where  no  briefs  have  been  filed, 
and  no  oral  argument  has  been  made  (Del- 
ger  V.  Jacobs,  18  Cal.  App.  698;  124  Pac. 
95) ;  and  also  where  the  appellants  have 
practically  abandoned  their  appeal  except 
upon  a  single  point  that  has  no  merit. 
Carley  v.  Vallecita  Mining  Co.,  16  Cal. 
App.  781;  117  Pac.  1037.  An  appeal  from 
an  order  cannot  be  considered,  where  no 
properly  authenticated  record  is  presented: 
in  such  a  case  the  order  will  be  affirmed. 
Creilit  Clearance  Bureau  v.  Weary  &  Al- 
ford  Co.,  18  Cal.  App.  467;   123  Pac.  548. 


Where  the  supreme  court  has  become 
vested  with  jurisdiction  over  an  appeal 
from  an  order,  by  virtue  of  a  notice  of 
appeal  given  under  §  941a,  ante,  the  proper 
practice  is,  not  to  dismiss  the  appeal,  but 
to  affirm  the  order  for  lack  of  a  record 
showing  error.  Hibernia  Sav.  &  L.  Soc.  v. 
Doran,  161  Cal.  118;  118  Pac.  526.  An 
order  denying  a  motion  for  a  change  of 
venue,  upon  conflicting  affidavits  as  to  the 
possibility  of  a  fair  trial,  will  be  affirmed, 
where  the  voir  dire  examination  of  the 
jurors  is  not  in  the  record,  and  it  does  not 
appear  that  a  single  citizen  liable  for  jury 
duty  is  disqualified  from  giving  a  fair  and 
impartial  trial.  Carpenter  v.  Sibley,  15 
Cal.  App.  589;  119  Pac.  391. 

On  merits.  A  judgment  dismissing  an 
action,  on  the  ground  that  the  plaintiff  has 
not  prosecuted  it  with  reasonable  dili- 
gence, will  be  affirmed,  where  no  abuse 
of  discretion  is  shown.  Gray  v.  Times- 
Mirror  Co.,  11  Cal.  App.  155;  104  Pac.  481. 
Where  an  order  sustaining  a  demurrer  is 
general  in  its  terms,  it  must  be  affirmed, 
if  the  demurrer  was  well  taken  upon  any 
of  the  grounds  assigned  therefor.  MacMul- 
lan  V.  Kelly,  19  Cal.  App.  700;  127  Pac. 
819.  Where  the  defendant  offers  no  evi- 
dence, and  judgment  goes  for  the  plain- 
tiff, the  judgment  will  be  affirmed,  where 
the  complaint  states  a  cause  of  action. 
Bakersfield  etc.  R.  R.  Co.  v.  Fairbanks,  20 
Cal.  App.  412;  129  Pac.  610.  Where  the 
evidence  is  substantially  conflicting,  and 
there  is  sufficient  evidence  for  the  plain- 
tiff to  support  the  findings  in  his  favor, 
the  decision  of  the  trial  court  in  plain- 
tiff's favor  must  be  affirmed  upon  appeal. 
Doudell  v.  Shoo,  20  Cal.  App.  424;  129 
Pac.  478.  Where  the  findings  of  fact, 
under  the  pleadings,  support  the  judgment 
as  entered  by  the  trial  court,  the  plain- 
tiff's motion  for  a  different  judgment  is 
properly  denied,  and  upon  his  appeal  the 
order  denying  the  same  must  be  affirmed. 
Newmire  v.  Ford,  20  Cal.  App.  337;  128 
Pac.  952.  A  party  must  prove  his  case 
as  alleged:  he  cannot  have  an  affirmance 
of  a  judgment  in  his  favor,  upon  proof  of 
other  facts  not  alleged,  which  might  en- 
title him  to  the  relief  asked.  Rheingans 
V.  Smith,  161  Cal.  362;  Ann.  Cas.  19i3B, 
1140;  119  Pac.  494.  The  judgment  will  be 
affirmed,  where  it  is  supported  by  the  find- 
ings. Erode  v.  Gosslin,  16  Cal.  App.  632; 
117  Pac.  778.  The  judgment  will  not  be 
reversed  on  appeal,  where  the  appellant  has 
suffered  no  prejudice:  it  will  be  affirmed. 
Madary  v.  Fresno,  20  Cal.  App.  91;  128 
Pac.  340;  Snowball  v.  Snowball,  164  Cal. 
476;  129  Pac.  784;  Gjurich  v.  Fieg,  164 
Cal.  429;  129  Pac.  464;  Sewell  v.  Price, 
164  Cal.  265;  128  Pac.  407;  Wolf  v.  ^tna 
Indemnity  Co.,  163  Cal.  597;  126  Pac.  470; 
Callahan  v.  Marshall,  163  Cal.  552;  126 
Pac.  358;  Sherman  v.  Ayers,  20  Cal.  App. 
733;    130   Pac.    163;    Hunt   v.   Sharkey,   20" 


1113 


EFFECT  OF   AFFIRMANCE — RESTITUTION. 


§  9:.7 


Cal.  App.  finO;  130  Pae.  21;  Mentrv  v. 
Broadway  Bank  etc.  Co.,  20  Cal.  App. '38S; 
129  Pae.  470;  McDougall  v.  Eaton,  20  Cal. 
App.  164;  128  Pae.  415;  Dicekniann  v. 
Merkh,  20  Cal.  655;  130  Pae.  27;  Tiibbs 
V.  Delillo,  19  Cal.  App.  612;  127  Pae.  514; 
Wagner  v.  United  Railroads,  19  Cal.  App. 
396;  126  Pae.  186.  The  eourt  will  aflirm 
the  judgment,  with  damages  awarded 
against  the  a])pellants,  where  the  ajijieal 
was  frivolous,  and  taken  merely  for  delav. 
Bell  V.  Camm,  10  Cal.  App.  388;  102  Pae. 
225.  Where  a  justiee  of  the  supreme  court 
is  disqualified,  and  the  other  justices  are 
equally  divided  in  opinion,  and  there  is 
no  probability  of  an  immediate  change  in 
the  personnel  of  the  court,  the  judgment 
of  the  lower  eourt  will  be  aflirmcd.  Santa 
Rosa  Citv  R.  R.  v.  Central  (Street  Ry.  Co., 
112  Cal.  436;  44  Pae.  733;  Smith  v.  Ferris 
etc.  Ry.  Co.,  5  Cal.  Unrep.  889;  51  Pae. 
710.  Where  the  supreme  court  believes 
that  an  order  under  review  was  properly 
made,  its  duty  is  to  affirm  the  order, 
although  it  has,  in  another  case,  reversed 
an  order  similar  in  all  respects.  Bohn  v. 
Bohn.  164  Cal.  532;  129  Pae.  981. 

Effect  of  affirmance.  The  affirmance  of 
a  void  judgment  on  appeal,  upon  grounds 
not  touching  but  overlooking  its  invalid- 
ity, does  not  make  it  valid.  Pioneer  Land 
Co.  V.  Maddux,  109  Cal.  633;  50  Am.  St. 
Rep.  67;  42  Pae.  295.  An  order  granting 
a  new  trial  has  the  effect  to  vacate  the 
judgment,  and  the  affirmance  of  the  order 
on  appeal  leaves  nothing  in  the  court  be- 
low upon  which  an  appeal  from  the  judg- 
ment can  operate.  Etchas  v.  Oreiia,  121 
Cal.  270;  53  Pae.  789.  Where  the  order 
granting  a  new  trial  has  been  affirmed 
upon  appeal,  the  judgment  falls,  and  the 
appeal  should  be  dismissed,  at  the  costs 
of  the  respondent.  San  Jose  Safe  Deposit 
Bank  v.  Bank  of  Madera,  121  Cal.  543;  54 
Pae.  85. 

Effect  of  satisfaction  on  affirmance.  The 
affirmance  of  a  judgment  is  not  affected 
bv  the  fact  that  it  has  been  partly  satis- 
fied. Ryland  v.  Heney,  130  Cal.  426;  62 
Pae.  616. 

Restitution  discretionary  with  court.  The 
provision  of  this  section,  that  the  appel- 
late court  may  make  eomi)k'te  restitution 
of  all  property  and  rights  lost  by  an  erro- 
neous judgment  or  order  which  is  reversed 
or  modified,  is  not  mandatory  upon  the 
court,  and  does  not  give  the  apjiellant  an 
absolute  right  to  a  restitution  of  jiossos- 
sion,  but  the  power  conferred  thereby  is 
to  be  exercised  in  the  discretion  of  the 
court.  Spring  Vallev  Water  Works  v. 
Drinkhouse,  95  Cal.  220;  30  Pae.  218;  Yn- 
dart  V.  Den,  125  Cal.  85;  57  Pae.  761;  Tay- 
lor v.  Ellenberger,  6  Cal.  Unrep.  725;  65 
Pae.  832. 

Restitution  may  be  compelled  when  and 
how.  Restitution  may  be  ordered  when 
justiee    requires   it,   and    may    be    directed 


and  jirovidcd  for  in  the  original  action 
itself,  or  may  be  sought  in  a  separate 
action.  Ward'  v.  Sherman,  155  Cal.  287; 
100  Pae.  864. 

Restitution  upon  modification  of  judg- 
ment. .\  juilgmcnt  ilchtor  whose  judg- 
ment has  been  modified  on  af>peal,  merely 
to  the  extent  of  relieving  him  from  only 
a  part  of  the  juilgmont,  has  not  lost  any 
]iroperty  or  rights  by  the  erroneous  judg- 
ment so  as  to  entitle  him  to  the  restitution 
of  the  jJToperty,  unless  more  of  his  prop- 
erty has  been  taken  than  the  amount  for 
which  the  judgment  has  been  affirmed. 
Hewitt  V.  Dean,  91  Cal.  617;  25  Am.  St. 
Rep.  227;  28  Pae.  93.  Where  a  judgment 
of  foreclosure  is  modified  on  appeal,  merely 
as  to  an  excess  of  interest  allowecl,  the 
sale  under  foreidosure  will  not  be  set  asicle, 
and  the  defendant  is  entitled  only  to  the 
restitution  of  the  excess  of  interest;  and 
where  he  received  in  rents  and  profits  a 
greater  sum  than  such  interest,  a  restitu- 
tion of  the  amount  of  the  interest  will 
not  be  required.  Yndart  v.  Den,  125  Cal. 
85;  57  Pae.  761.  Where  a  judgment  direct- 
ing a  sale  of  property  to  satisfy  a  lien  is 
modified  by  merely  reducing  the  amount 
of  the  lien,  it  cannot  be  said  from  that 
fact  alone  that  the  appellant  has  lost  any 
property,  of  which  restitution  is  author- 
ize<l  to  be  made  by  setting  aside  the  order 
of  sale.  Barnhart  v.  Edwards,  128  Cal. 
572;  61  Pae.  176;  and  see  Johnson  v.  Lam- 
ping, 34  Cal.  293.  A  reduction  of  the 
amount  of  a  recovery  does  not  cause  prop- 
erty to  be  "lost,"  so  as  to  authorize  the 
appellate  court,  on  modifying  the  juilg- 
ment,  to  make  restitution  of  property  lost 
by  an  erroneous  judgment.  Barnhart  v. 
Edwards,  57  Pae.  1004. 

Upon  reversal.  Upon  reversal,  there 
should  be  restitution  of  things  lost  by 
reason  of  the  judgment  in  the  low^er  court, 
where  justice  requires  it,  and  the  prevail- 
ing party  be  placed  as  nearly  as  may  be 
in  the  condition  in  which  he  previously 
stood.  Ward  v.  Sherman.  155  Cal.  287;  100 
Pae.  864.  The  enforcement  of  a  judgment 
by  execution  before  the  expiration  of  the 
time  to  appeal  cannot  deprive  the  defend- 
ant of  the  right  to  appeal  from  the  judg- 
ment, and  in  ease  of  the  reversal  of  the 
judgment  on  appeal,  to  the  restitution  of 
all  i)roperty  and  rights  lost  by  reason  of 
the  judgment.  Kenney  v.  Parks,  120  Cal. 
22;  52  Pae.  40.  Where  a  mortgagee  pur- 
chases the  land  at  a  foreidosure  sale 
thereof,  and  sells  it  pending  an  appeal, 
the  reversal  of  the  judgment  restores  the 
mortgagor  to  his  original  estate,  and  he 
does  not  need  an  order  of  restitution  to 
enable  him  to  assert  his  right  thereto. 
Di  Nola  V.  Allison,  143  Cal.  106;  101  Am. 
St.  Rep.  84;  65  L.  R.  A.  419;  76  Pae.  796. 
Where  a  judgment,  under  which  personal 
property  has  been  sold  u]i<in  exerution  to 
the    judgment    creditor,    who    ajiplied    the 


§957 


APPEALS   IN   GENERAL. 


1114 


price  upon  the  judgment,  has  been  re- 
versed upon  appeal,  the  original  owner  is 
entitled  to  restitution  of  the  property,  or 
its  value.  Black  v.  Vermont  Marble  Co., 
137  Cal.  683;  70  Pac.  776.  Upon  the  re- 
versal of  a  decree  of  distribution,  the 
plaintiff  is  entitled  to  the  redelivery  of 
stock  which  had  been  turned  over  to  the 
defendant  in  pursuance  of  the  decree. 
Ashton  v.  Heydenfeldt,  124  Cal.  14;  56 
Pac.  624.  Upon  the  reversal  of  a  judg- 
ment, with  legal  interest,  under  this  sec- 
tion, costs  paid  by  the  respondent  may  be 
ordered  to  be  returned  to  him,  to  the  end 
that  the  status  quo  may  be  restored. 
Stockman  v.  Riverside  Laud  etc.  Co.,  64 
Cal.  57;  28  Pac.  116.  Upon  a  reversal  of 
an  order  for  a  writ  of  restitution,  the  ap- 
pellant is  entitled  to  be  restored  to  all 
that  he  has  lost  by  virtue  of  the  order, 
and  to  be  placed  in  the  same  position  as 
he  was  prior  to  the  execution  of  the  writ, 
by  the  removal  of  all  persons  who  have 
been  placed  in  possession  of  the  lands  by 
virtue  of  the  writ,  as  well  as  of  all  others 
who  have  come  in  under  him  after  that 
date.  Hyde  v.  Boyle,  105  Cal.  102;  38  Pac. 
643.  A  restitution  of  premises  taken  in 
condemnation  proceedings  will  not  be  made 
without  a  reversal  of  the  judgment  on  ap- 
peal, where  the  case  was  remanded  to  the 
lower  court  for  the  sole  purpose  of  de- 
termining the  amount  of  compensation  to 
which  the  appellant  is  entitled,  and  where 
the  money  deposited  with  the  trial  court 
was  amply  sufficient  to  satisfy  any  judg- 
ment for  damages  which  might  be  re- 
covered. Spring  Valley  Water  Works  v. 
Drinkhouse,  95  Cal.  220;  30  Pac.  218. 
Upon  the  reversal  of  a  decree  of  foreclos- 
ure, where  execution  was  not  stayed,  and 
the  mortgaged  property  was  sold  to  a  third 
party,  the  measure  of  damages  in  an  ac- 
tion for  restitution  is  limited  to  the  pro- 
ceeds of  the  sale  of  the  property,  after 
deducting  the  expenses  of  the  sale.  Dow- 
dell  V.  Carpy,  137  Cal.  333;  70  Pac.  167. 
Restitution  by  the  losing  party,  of  money 
which,  was  not  paid  after  nor  in  conse- 
quence of  the  judgment,  but  was  paid  in 
consequence  of  an  unappealed  order  made 
prior  to  the  judgment,  will  not  be  com- 
pelled upon  appeal,  where  the  judgment 
appealed  from  is  reversed.  Eevuolds  v. 
Reynolds,  2  Cal.  Unrep.  547;  8  Pac.  184. 

Action  to  enforce  judgment  for  proceeds 
of  sale.  Where  a  mortgagor,  in  an  action 
under  this  section  to  recover  the  proceeds 
of  a  foreclosure  sale,  the  judgment  having 
been  set  aside  upon  appeal,  alleged  in 
his  complaint  that  foreclosure  proceedings 
were  commenced  against  the  plaintiff,  in 
which  the  defendant,  a  second  mortgagee, 
was  joined  as  a  party,  and  filed  a  cross- 
complaint  asking  a  foreclosure  of  his 
mortgage,  and  that  an  order  of  sale  on 
the  judgment  foreclosing  both  mortgages 
was    duly   issued    by    the    clerk,    and    was 


thereupon  delivered  to  the  sheriff,  w^ho 
sold  the  land  to  the  defendant,  and,  after 
paying  the  first  mortgage,  there  remained 
a  balance,  a  right  of  action  is  not  shown 
against  the  second  mortgagee,  it  not  being 
shown  that  the  sheriff  had  applied  any 
part  of  the  proceeds  of  such  sale  to  the 
satisfaction  of  the  defendant's  debt.  Pat- 
ton  V.  Thomson,  3  Cal.  Unrep.  871;  33  Pac. 
97.  Attorney's'  fees  cannot  be  recovered 
in  an  action  to  recover  the  value  of  prop- 
erty sold  under  execution,  pending  an  ap- 
peal from  the  judgment.  Dowdell  v.  Carpy, 
137  Cal.  333;  70  Pac.  167. 

Damages,  where  appeal  taken  for  delay. 
The  remedy  for  a  frivolous  appeal,  or  for 
one  taken  merely  for  delay,  must  be  sought 
under  this  section,  and  not  by  a  motion  to 
dismiss.  Nevills  v.  Shortridge,  129  Cal. 
575;  62  Pac.  120.  Where  an  appeal  is 
frivolous  and  vexatious,  and  taken  merely 
for  the  purpose  of  delay,  that  is  a  matter 
which  can  only  be  determined  by  an  ex- 
amination of  the  record  on  appeal,  which 
cannot  be  done  on  a  motion  to  dismiss. 
Randall  v.  Duff,  104  Cal.  126;  43  Am.  St. 
Rep.  79;  37  Pac.  803.  Upon  a  motion  to 
dismiss  an  appeal,  and  for  damages,  where 
an  uncontradicted  affidavit  shows  that  the 
appeal  was  taken  for  delay,  damages  will 
be  allowed  upon  the  dismissal  of  the  ap- 
peal, though,  ordinarily,  the  court  will  not 
look  into  the  record  to  see  if  the  appeal 
is  frivolous.  McFadden  v.  Dietz,  115  Cal. 
697;  47  Pac.  777.  An  appeal  taken  merely 
for  delay,  no  transcript  being  filed,  will 
be  dismissed,  with  damages.  Koelling  v. 
Rutz,  108  Cal.  664;  41  Pac.  781.  Damages 
may  be  awarded  for  a  frivolous  appeal. 
Bell  V.  Camm,  10  Cal.  App.  388;  102  Pac. 
225.  Where  an  appeal  is  manifestly  frivo- 
lous, damages  will  be  added  upon  the 
affirmance  of  the  judgment,  as  a  penalty 
for  the  delay.  Clark  v.  Nordholt,  121  Cal. 
26;  53  Pac.  400;  Henehan  v.  Hart,  127  Cal. 
656;  60  Pac.  426;  Hearst  v.  Hart,  128  Cal. 
327;  60  Pac.  846.  Twenty  per  cent  of  the 
amount  of  the  judgment  may  be  added 
to  the  costs,  as  damages,  where  the  appeal 
is  taken  for  delay.  Shain  v.  Belvin,  79 
Cal.  262;  21  Pac.  747;  Williams  v.  Hall, 
79  Cal.  606;  21  Pac.  965.  Where  an  appeal 
is  without  merit,  and  it  appears  to  the 
appellate  court  to  have  been  taken  for 
delay,  the  mere  fact  that  the.  attorney  for 
the  appellant  acted  in  good  faith  in  its 
prosecution  will  not  relieve  the  appellant 
from  liability  for  damages,  under  this  sec- 
tion. Lemon  v.  Eucker,  80  Cal.  609;  22 
Pac.  471.  An  appeal  from  a  judgment, 
where  the  only  error  upon  the  record  is 
manifestly  a  trivial  clerical  error  in  the 
computation  of  interest,  which  would  have 
been  corrected  by  the  court  below  upon 
having  its  attention  called  to  the  matter, 
is  a  frivolous  appeal,  and  the  superior 
court  will  be  directed  to  make  a  proper 
correction  in  the  computation  of  interest, 


1115 


DEATH  OF  PARTY LAW  OF  CASE — RULE  OF  PROPERTY. 


§957 


and  the  appellate  court  will  require  the 
costs  to  be  paid  by  the  appellant,  and 
allow  the  respondent  damajrcs  for  delay 
as  part  of  the  costs  of  appeal.  Kountree 
V.  I.  X.  L.  Lime  Co.,  106  C'al.  62;  :{0  Pae. 
16.  The  issuance  of  an  order  of  sale  be- 
fore the  taxation  of  costs  is  not  premature, 
and  an  appeal  taken  after  the  taxation  of 
costs,  from  an  order  refusini^  to  vacate  the 
order  of  sale,  because  the  costs  were  in- 
serted in  the  decree  before  taxation,  is 
without  merit,  and  the  order  will  be 
affirmed,  wuth  dania<ies.  Janes  v.  Bullard, 
107  Cal.  130;40Pac.  108. 

Authoritative  effect  of  opinion.  An  order 
of  tho  supreme  court,  refusing  to  transfer 
a  cause  after  judgment  in  the  district 
court  of  appeal,  does  not  adopt  the  opinion 
of  the  court  of  apjieal  so  as  to  give  it.  in 
the  supreme  court,  the  authoritative  effect 
that  one  of  its  own  decisions  would  have. 
Bohn  V.  Bohn,  164  Cal.  532;  129  Pac.  9S1. 

Authority  of  trial  court  limited  how. 
After  the  supreme  court  has  determined 
that  the  complaint  states  facts  sufficient 
to  constitute  a  cause  of  action,  the  trial 
court  is  without  power  further  to  consider 
the  objection  that  the  complaint  does  not 
state  a  cause  of  action.  Neale  v.  Morrow, 
16.3  Cal.  44.-;  12.5  Pac.  10.53. 

Supreme  court  not  influenced  by  subordi- 
nate court.  The  supreme  court,  in  the  de- 
termination of  a  cause,  will  act  according 
to  its  own  legal  conviction,  although  in  a 
case  between  the  same  parties,  presenting 
identical  questions,  a  contrary  conclusion 
■was  reached  bv  the  district  court  of  ap- 
peal. Bohn  V.  Bohn,  164  Cal.  532;  129  Pac. 
'981. 

Disposition  of  case  after  death  of  party. 
Where  the  appellant  dies  after  the  argu- 
ment antl  submission  of  the  appeal,  and 
before  the  decision,  the  judgment  will  be 
entered  as  of  the  day  preceding  his  death. 
Ede  V.  Cuneo,  55  Pac.  772.  Where  the 
respondent  dies  after  the  submission  of 
the  appeal,  an  affirmance  of  the  judgment 
will  be  entered  nunc  pro  tunc  as  of  a  time 
prior  to  his  death.  Lucas  v.  Provines,  130 
Cal.  270;  62  Pac.  509;  McPike  v.  Heatou, 
131  CaL  109;  82  Am.  St.  Rep.  335;  63  Pac. 
179. 

Stare  decisis.  The  decision  of  a  former 
supreme  court  of  this  state,  unreversed  and 
unmodified,  must  be  followed  by  a  district 
court  of  appeal.  Canadian  Bank  of  Com- 
merce V.  Leale,  14  Cal.  App.  307;  111  Pac. 
759. 

Law  of  the  case.  Where  nothing  mate- 
rially new  ajipears  in  a  case,  the  views 
of  the  supreme  court,  upon  a  former  ap- 
peal, become  the  "law  of  the  case."  Smith 
V.  Goethe,  159  Cal.  62S;  Ann.  Cas.  1912C, 
1205;  115  Pac.  223;  Barrett-Hicks  Co.  v. 
Glas,  14  CaL  App.  297;  111  Pac.  760;  Conde 
V.  Sweeney,  16  Cal.  App.  157;  116  Pac.  319; 
Muller  V.  Swanton,  17  Cal.  App.  232;   119 


Pac.  200;  Lantz  v.  Fishburn,  17  Cal.  App. 
583;  120  Pac.  1068.  The  construction  given 
by  the  appellate  court  to  the  judgment  of 
the  trial  court,  in  determining  an  ai)peal 
therefrom,  becomes  the  law  of  the  case, 
and  is  binding  on  the  lower  court  in  all 
subsequent  proceedings,  and  whenever  its 
interpretation  is  material.  Gallatin  v. 
Corning  Irrigation  Co.,  163  Cal.  4n."j;  Ann. 
Cas.  1914 A,  74;  120  Pac.  864;  Oibb.s  v. 
Peterson,  163  Cal.  758;  127  Pac.  62.  The 
rule  of  the  law  of  the  case  is  apjilicable, 
only  where  the  same  matters  which  were 
determined  in  the  previous  appeal  are  in- 
volved in  the  second  appeal.  Flood  v. 
Temjdeton.  152  Cal.  148;  13  L.  R.  A. 
(N.  S.)  579;  92  Pac.  78;  .Jacks  v.  Deering, 
150  Cal.  272;  88  Pae.  909;  Estate  of  Hall, 
154  Cal.  527;  98  Pac.  269.  The  doctrine 
of  the  law  of  the  case  is,  in  a  very  limited 
class  of  cases,  applied  to  matters  of  evi- 
dence, as  distinguished  from  rulings  of 
law,  but  its  extension  is  not  looked  upon 
with  favor.  Allen  v.  Bryant,  155  Cal.  256; 
100  Pac.  704;  Smith  v.  Sinbad  Develop- 
ment Co.,  15  Cal.  App.  166;  113  Pae.  701. 
The  decision,  upon  a  former  appeal,  as  to 
the  interest  of  a  son  in  his  deceased 
father's  estate,  is  not  the  law  of  the  case 
as  to  his  right  of  inheritance  from  his 
mother.  Estate  of  Wiekersham,  153  Cal. 
603;  96  Pac.  311.  A  decision  upon  a 
former  appeal  is  not  the  law  of  the  case 
upon  a  subsequent  appeal  that  has  an  im- 
portant distinction  from  the  former  ap- 
])eal.  Hibernia  Sav.  &  L.  Soc.  v.  Farnham, 
153  Cal.  578;  126  Am.  St.  Rep.  129;  96 
Pac.  9. 

Rule  of  property.  The  rule  of  construc- 
tion, that  a  tax  deed  misreciting,  or  omit- 
ting to  recite,  any  one  of  the  facts  required 
by  the  statute  to  be  recited  has  no  effect 
at  all  as  a  conveyance,  has  become  a  rule 
of  property  that  courts  should  not  depart 
from.  Henderson  v.  De  Turk,  164  Cal.  296; 
128  Pac.  747. 

Rehearing.  A  petition  for  a  rehearing, 
and  not  a  motion  for  a  new  trial,  is  the 
j)roper  remedy  for  one  desiring  a  rehear- 
ing of  an  original  petition  in  the  supreme 
court  for  a  writ  of  prohibition,  after  a 
decision  has  been  rendered  thereupon. 
Granger's  Bank  v.  Superior  Court,  101  Cal. 
198;  35  Pac.  642.  A  rehearing  will  not 
be  granted  because  of  an  erroneous  state- 
ment of  fact,  upon  which  the  court  relied, 
which  was  contained  in  the  respondent's 
pleading,  where  the  allegations  of  the 
pleading  were  specifically  noticed  in  the 
ajipcllant's  brief,  and  the  respon>lent  paid 
no  attention  to  it,  and  made  no  suggestion 
that  it  was  a  clerical  or  other  error,  and 
relied  wholly  on  another  matter.  Buhman 
V.  Nickels,  1  Cal.  App.  266;  82  Pac.  85. 

Dictum.  Where  a  decision  is  based  upon 
two  iudcjiendent  lilies  of  reasoning,  neither 
can  be  said  to  be  dictum:  one  is  as  ueces- 


§958 


APPEALS  IN  GENERAL. 


111(> 


sarv   to   the   decision   as   the   other.    Pugh 
V.  Moxley,  164  Cal.  374;  128  Pac.  1037. 
Dismissal  of  appeal.    See  note  ante,  §  954. 

Power  of  appellate  court  upon  granting  new 
trial  to  limit  issues  to  be  tried  by  jury.  See  note 
7  Ann.  Cas.  116. 

Power  of  appellate  court  to  enter  final  judg- 
ment upon  reversing  civil  cause  for  insuflaciency 
of  evidence.    St-f  luite  8  Ann.  Cas.  873. 

CODE  COMMISSIONERS'  NOTE.  Restitu- 
tion of  property,  etc.  Reynolds  v.  Harris,  14  Cal. 
667;    76   Am.    Dec.    459;    Farmer   v.    Rogers,    10 


Cal.  335;  Raun  v.  Reynolds,  18  Cal.  283;  Gray 
V.  Dougherty,  25  Cal.  273;  Johnson  v.  Lamping, 
34  Cal.  296. 

2.  Costs  and  damages.  Cole  v.  Swanston,  1 
Cal.  51;  52  Am.  Dec.  288;  Pacheco  v.  Bemel, 
2  Cal.  150;  Bates  v.  Visher,  2  Cal.  355;  Buck- 
ley V.  Stebbins,  2  Cal.  149;  Russell  v.  Williams, 
2  Cal.  158;  Pinkham  v.  Wemple,  12  Cal.  449; 
De  Witt  V.  Porter,  13  Cal.  171;  Ricketson  v. 
Torres,  23  Cal.  649;  Harper  v.  Minor,  27  Cal. 
109;  Nickerson  v.  California  Stage  Co.,  10  Cal. 
520;  Jungerman  v.  Bovee,  19  Cal.  355;  Wilber 
V.  Sanderson,  43  Cal.  496;  Swimley  v.  Clark, 
1872. 


§  958.  On  judgment  on  appeal,  remittitur  must  be  certified  to  the  clerk 
of  the  court  below.  When  judgment  is  rendered  upon  the  appeal,  it  must 
be  certified  by  the  clerk  of  the  supreme  court  to  the  clerk  with  whom  the 
judgment  roll  is  filed,  or  the  order  appealed  from  is  entered.  In  cases  of 
appeal  from  the  judgment,  the  clerk  with  whom  the  roll  is  filed  must  at- 
tach the  certificate  to  the  judgment  roll,  and  enter  a  minute  of  the  judg- 
ment of  the  supreme  court  on  the  docket,  against  the  original  entry.  In 
cases  of  appeal  from  an  order,  the  clerk  must  enter  at  length  in  the  records 
of  the  court  the  certificate  received,  and  minute  against  the  entry  of  the 
order  appealed  from,  a  reference  to  the  certificate,  with  a  brief  statement 
that  such  order  has  been  affirmed,  reversed,  or  modified,  by  the  supreme 
court  on  appeal. 


Judgment  rendered  on  appeal.    Ante,  §§  43,  45. 

Remittitur.     Ante.  §  56. 

Judgment  becomes  final  thirty  days  after  it  Is 
filed.      See  Const.,  art.  VI,  §  2. 

Legislation  §  958.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act.  §  358),  (1)  substituting 
"must"  for  "shall"  in  all  instances,  and  (2)  omit- 
ting  "as  the   case  mav  be"   after   "modifiied." 

2.  Amendment  by "  Stats.  1901,  p.  174;  un- 
constitutional.   See  note  ante,  §  5. 

Jurisdiction  of  appellate  court  after  re- 
mittitur. As  a  general  rule,  the  supreme 
court  cannot  exercise  any  jurisdiction  over 
a  case  in  which  a  remittitur  has  been  is- 
sued by  its  order  and  filed  in  the  court 
below;  but  this  general  rule  rests  upon 
the  supposition  that  all  of  the  proceedings 
have  been  regular,  and  that  no  fraud  or 
imposition  has  been  practiced  upon  the 
court  or  the  opposite  party:  where  such 
is  the  case,  the  appellate  court  will  assert 
jurisdiction  and  recall  the  case.  Trumpler 
V.  Trumpler,  123  Cal.  248;  55  Pac.  1008; 
Richardson  v.  Chicago  Packing  etc.  Co., 
135  Cal.  311;  67  Pac.  769.  A  decision  ren- 
dered by  the  appellate  court,  reversing 
the  judgment  of  the  trial  court,  after  the 
death  of  the  respondent,  where  no  sug- 
gestion of  his  death  or  motion  to  substi- 
tute his  representatives  has  been  made,  is 
not  void,  but  merely  erroneous;  and  where 
no  fraud  or  imposition  has  been  practiced 
upon  the  appellate  court  upon  the  issuance 
of  the  remittitur,  the  judgment  of  reversal 
becomes  a  finality,  beyond  the  power  of 
the  appellate  court  to  modify  or  amend. 
Martin  v.  Wagner,  124  Cal.  204;  56  Pac. 
1023. 

Recalling  remittitur.  Where  the  remit- 
titur has  been  duly  and  regularly  issued, 
without  inadvertence,  the  supreme  court 
loses    jurisdiction    of    the    cause,   and    has 


no  power  to  recall  it.  Estate  of  Levinson, 
108  Cal.  450;  41  Pac.  483.  Where  the  re- 
mittitur conforms  to  the  judgment  as  ren- 
dered, it  will  not  be  recalled,  if  it  is  too 
late  to  amend  the  judgment.  San  Fran- 
cisco Sav.  Union  v.  Long,  6  Cal.  IJnrep. 
278;  56  Pac.  882.  Where  the  judgment 
rendered  by  the  appellate  court  is  void, 
the  remittitur  will  be  recalled,  and  the 
appeal  restored  to  the  calendar.  Martin 
V.  Wagner,  124  Cal.  204;  56  Pac.  1023. 
An  objection  to  an  application  to  recall 
a  remittitur,  on  the  ground  that  the  notice 
of  the  motion  did  not  specifically  state 
that  it  would  be  made  on  the  ground  that 
the  remittitur  failed  to  conform  to  the 
judgment,  will  not  be  sustained,  where  the 
terms  of  the  notice  otherwise  disclose  that 
this  was  the  ground  of  the  motion,  and  the 
opposite  side  was  not  prejudiced  by  the 
omission.  Baker  v.  Southern  California 
Ey.  Co.,  130  Cal.  113;  62  Pac.  302. 

Jurisdiction  of  lower  court  after  remit- 
titur. A  stay  of  execution  of  a  decree  of 
foreclosure,  pending  an  appeal  therefrom, 
ceases  to  operate  when  the  remittitur  from 
the  appellate  court  is  filed  in  the  clerk's 
oflSce  of  the  superior  court:  the  failure  of 
the  clerk  to  follow  the  directions  given 
in  this  section  cannot  deprive  the  superior 
court  of  its  jurisdiction,  nor  keep  alive  the 
stav  of  execution.  Granger  v.  Sheriff,  140 
Caf.  190;  73  Pac.  816.  After  the  time  of 
the  going  down  of  the  remittitur,  the  su- 
perior court  has  no  power  to  moilify  the 
judgment  of  the  supreme  court.  Estate  of 
Pichoir,  146  Cal.  404;  80  Pac.  512.  Where, 
upon  a  judgment  of  reversal  in  the  su- 
preme court,  a  judgment  for  costs  of  ap- 
peal  is   docketed   in   conformity   with   the 


1117 


JURISDICTION    AFTER    DECISION — APPEAI.S. 


§§959,003 


rule  of  siK-h  court,  and  with  this  section, 
the  trial  court  has  no  power  to  vacate  it; 
but,  in  so  far  as  it  has  been  (iocketi'd 
against  respondents  as  to  whom  the  judg- 
ment was  affirmed  by  the  supreme  court, 
the  trial  court  had  power  to  set  it  aside, 
BO  as  to  make  it  conform  to  the  decision 
upon  appeal,  (.'hapman  v.  Hughes,  3  Cal. 
App.  622;  S6  Pac.  90S;  and  see  Long  v. 
Superior  Court,  127  Cal.  686;  60  Pac.  464; 
Baker  v.  Southern  California  Ry.  Co.,  130 
Cal.  113;  62  Pac.  302. 

After  modification  of  judgment.  Where 
a  judgment  is  ordered  modified  by  the 
apj)ellate  court,  without  prescribing  the 
mode  of  modification,  the  mode  is  within 
the  discretion  of  the  court  below;  and 
where  the  former  judgment  was  vacated, 
and  a  new  judgment  made  to  cover  the 
whole  ground,  such  method  is  not  improper. 
Downing  v.  Eademacher,  138  Cal.  324;  71 
Pac.  343.  A  judgment  of  the  supreme 
court,  modifying  the  judgment  appealed 
from,  is  a  final  adjudication  of  the  rights 
of  the  parties  in  the  action,  and  the  su- 
perior court  is  without  jurisdiction  to 
make  any  further  judgment  or  order. 
Vance  v.  Smith,  132  Cal.  510;  64  Pac.  1078. 

Acts  done  by  authority  of  appellate 
court.  The  clerk  of  the  superior  court, 
in  making  the  entries  required  by  this 
section,  acts  by  authority  of  the  apiiellate 


court;  no  action  is  required  on  the  part 
of  the  superior  court  to  auth(jrize  the  entry 
or  the  issuance  of  execution  thereon;  and 
the  judgment  of  the  appellate  court  be- 
comes the  judgment  of  the  superior  court 
as  soon  as  the  remittitur  is  filed  and  the 
entry  is  made.  McMann  v.  Superior  Court, 
74  Cal.  106;  15  Pac.  448.  Where,  upon 
appeal,  it  was  held  erroneous  to  refuse 
permission  to  the  plaintiff"  to  file  an 
amended  complaint,  and  the  cause  was  re- 
manded for  a  new  trial,  with  leave  to  the 
parties  to  anieml  the  pleadings,  the  plain- 
tiff may,  after  the  r^  mittitur  goes  down, 
file,  without  leave  of  the  trial  court,  an 
amended  com])laint,  other  than  that  offered 
on  the  first  trial.  Pottkamp  v.  Buss,  o  Cal. 
Unrep.  462;  46  Pac.  169. 

Execution  for  costs  may  issue  when. 
The  five  years  within  which  an  execution 
may  be  issued  on  a  judgment  for  costs, 
incurred  in  the  supreme  court  on  ai>|>eal 
from  a  judgment,  commences  to  run  from 
the  time  that  a  minute  of  the  judgment 
of  the  supreme  court  is  entered  on  the 
docket  of  the  lower  court.  McMann  v. 
Superior  Court,  74  Cal.  106;  15  Pac.  448. 

CODE  COMMISSIONERS'  NOTE.  McMillan 
V.  Kichards,  12  Cal.  467;  Blanc  v.  Bowman,  22 
Cal.  '-'3;  ilarysvillc  v.  Buchanan,  3  Cal.  212; 
Argenti  v.  San  Francisco,  30  Cal.  458;  Meyer 
V.  Kohn,   33  Cal.  484. 


s  by  authority  ot  the  apiiellate 

§  959.  Provisions  of  this  chapter  not  applicable  to  appeals  to  superior 
courts.  The  provisions  of  this  chapter  do  not  apply  to  appeals  to  superior 
courts. 


courts 

Appeals  to  superior  courts.    Post,  §§  974-980. 

Legislation  g  959.    1.  Enacted  March  11,  1873. 
2.  Amended  by  Code  Amdts.  1880,  p.  7,  sub- 


stituting   "superior"    for   "county." 

3.   Repeal   by   Stats.   1901,  p.   174;   unconsti- 
tutional.   See  note  ante,  S  5. 


CHAPTER  II. 
APPEALS  TO  SUPKEME  COUKT. 


§  963.      Cases  !n  which  an  appeal  may  be  taken 

from  superior  court. 
§  964.      Appeals ;    in    what    cases    appealed    from 

justices'  courts. 
§  965.      Appeals  by  executors  and  administrators. 
§  9G6.      Acts     of     executors     and     administrators, 

where  appointment  vacated. 
§  967,  §  968.       [None  so  numbered.] 

Legislation  Chapter  II.  1.  Enacted  March  11, 
1872.  and  then  contained  only  one  sectioa 
(§  963),  relating  to  appeals  to  the  supreme  court. 

2.  Amended  by  Code  Amdts.  1880,  p.  14,  by 
"An   Act   to    amend   Chapters   Two    and   Three,    of 


§  969.  Appeal  from  prohate  court,  when  may  he 
taken.      [Repealed.] 

§  970.  Executors  and  administrators  not  required 
to  give  undertaking  on  appeal.  [Re- 
pealed.] 

§  971.  Acts  of  acting  administrator,  etc.,  not  in- 
validated by  reversal  of  order  appoint- 
ing him.     [Repealed.] 

Title  Thirteen,  of  Part  Two,  of  the  Code  of  Civil 
Procedure,  and  each  and  every  section  of  said 
Chapters  Two  and  ITiree,  and  to  substitute  new 
Chapters  Two  and  Three  to  take  the  place  thereof 
in  said  Code,  relating  to  appeals  in  civil  actions." 


§  963.  Cases  in  which  an  appeal  may  be  taken  from  superior  court.  An 
appeal  may  be  taken  from  a  superior  court  in  the  following  cases: 

1.  From  a  final  judgment  entered  in  an  action,  or  special  proceeding, 
commenced  in  a  superior  court,  or  brought  into  a  superior  court  from 
another  court; 

2.  From  an  order  granting  a  new  trial  in  an  action  or  proceeding  tried 
by  a  jury  where  such  trial  by  jury  is  a  matter  of  right,  or  granting  or  dis- 
solving an  injunction,  or  refusing  to  grant  or  dissolve  an  injunction,  or 
appointing  a  receiver,  or  dissolving  or  refusing  to  dissolve  an  attachment, 
or  changing  or  refusing  to  change  the  place  of  trial,  from  any  special  order 


§963 


APPEALS  TO  SUPREME  COURT. 


1118 


made  after  final  judgment,  from  any  interlocutory  Judgment,  order,  or 
decree,  hereafter  made  or  entered  in  actions  to  redeem  real  or  personal 
property  from  a  mortgage  thereof,  or  lien  thereon,  determining  such  right 
to  redeem  and  directing  an  accounting;  and  from  such  interlocutory  judg- 
ment in  actions  for  partition  as  determines  the  rights  and  interests  of  the 
respective  parties  and  directs  partition  to  be  made,  and  interlocutory  de- 
crees of  divorce. 

3.  From  a  judgment  or  order  granting  or  refusing  to  grant,  revoking  or 
refusing  to  revoke,  letters  testamentary,  or  of  administration,  or  of  guar- 
dianship ;  or  admitting  or  refusing  to  admit  a  will  to  probate,  or  against  or 
in  favor  of  the  validity  of  a  will,  or  revoking  or  refusing  to  revoke  the  pro- 
bate thereof;  or  against  or  in  favor  of  setting  apart  property,  or  making  an 
allowance  for  a  widoAv  or  child ;  or  against  or  in  favor  of  directing  the  parti- 
tion, sale  or  conveyance  of  real  property,  or  settling  an  account  of  an 
executor,  administrator  or  guardian;  or  refusing,  allowing  or  directing  the 
distribution  or  partition  of  an  estate,  or  any  part  thereof,  or  the  payment  of 
a  debt,  claim,  or  legacy,  or  distributive  share ;  or  confirming  or  refusing  to 
confirm  a  report  of  an  appraiser  or  appraisers  setting  apart  a  homestead. 


Appeal  from — 

Award.      See  post,  §  1289. 

Criminal  cases.      See  ante,  §  52 ;   Pen.  Code, 
§§  1237,  1238. 

Final  judgment.    Compare  ante,  §  939,  subd.  1. 

Orders.      Compare   ante,  §  939,   subd.  3. 

Probate  decisions,  generally.     Post,  §§  1714, 
1715. 
Appeal  lies  from — 

Decree  dissolving  corporation.  Seepost,  §  1233. 

Decree  of  final  distribution.     See  post,  §  1664. 

Decree    settling    account    of    trustee    under 
will.      See  post,  §  1701. 

Judgment  in  agreed  case.      See  post,  §  1140. 

Judgment  in  election  contest.   See  post,  §  1126. 

Order  allowing  attorney's  fee.    See  post,  §  1616. 
Contempt,  judgments  and   orders  in,  final   and 
conclusive.      See  post,  §  1222. 

Orders  reviewable  on  appeal  from  judgment. 
See   ante,  §  956. 

Special  administration,  granting.  No  appeal. 
Post,  §  1413. 

Legislation  §  963.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  347,  as  amended  by 
Stats.  1865-66,  p.  707),  and  then  read:  "§963. 
An  appeal  may  be  taken  to  the  supreme  court, 
from   the   district   courts,   in  the   following  cases: 

1.  From  a  final  judgment  entered  in  an  action 
or  special  proceeding  commenced  in  those  courts, 
or  brought   into   those   courts   from   other   courts; 

2.  From  an  order  granting  or  refusing  a  new 
trial;  from  an  order  granting  or  dissolving  an 
injunction;  from  an  order  refusing  to  grant  or 
dissolve  an  injunction;  from  an  order  dissolving, 
or  reftising  to  dissolve,  an  attachment ;  from  an 
order  changing,  or  refusing  to  change,  the  place 
of  trial:  from  any  special  order  made  after  final 
judgment,  and  from  such  interlocutory  judgment 
in  actions  for  partition  as  determines  the  rights 
and  interests  of  the  respective  parties,  and  di- 
rects partition  to  be  made." 

2.  Amended  by  Code  Amdts.  1S80,  p.  14,  (1) 
in  introductory  paragraph,  substituting  "a  su- 
perior court"  for  "the  district  courts";  (2)  in 
subd.  1,  substituting  (a)  "a  superior  court"  for 
"those  courts,"  in  both  instances,  and  (b)  "an- 
other court"  for  "other  courts";  (3)  in  subd.  2, 
substituting  "or"  for  "from  an  order."  at  the 
beginning  of  each  clause,  except  the  first;  (4) 
adding  subd.  3. 

3.  Amended  by  Stats.   1889,  p.  324,  in  subd. 

3.  (1)  changing  "granting,  refusing,  or  revoking 
letters"  to  "granting  or  refusing  to  grant,  revok- 
ing or  refusing  to  revoke,  letters,"  (2)  changing 
"sales"     to    "sale,"     (3)     inserting    "or"     before 


"legacy,"   and    (4)    changing   "the"   to   "a"   before 
"homestead." 

4.  Amended  by  Stats.  1897,  p.  209,  (1)  in 
subd.  2,  adding  "or  appointing  a  receiver,"  after 
"injunction";  (2)  in  subd.  3,  inserting  "or  ap- 
praiseis,"  after  "appraiser." 

5.  Amended  by  Stats.  1899,  p.  8,  in  subd.  2, 
(1)  changing  the  comma  to  a  semicolon,-  after 
"trial"  and  after  "final  judgment,"  and  (2)  in- 
serting the  clause  beginning  "from  any  inter- 
locutory"  and  ending  "an  accounting." 

6.  Amended  by  Stats.  1901,  p.  85,  (1)  re- 
storing punctuation  changed  in  1899,  and  (2)  in 
suVjd.  3,  inserting  "or  refusing  to  revoke,"  before 
"the  probate  thereof." 

7.  Repeal  by  Stats.  1901,  p.  174;  unconsti- 
tutional.     See  note  ante,  §  5. 

8.  Amended  by  Stats.  1915.  p.  209,  (1)  in 
introductory  paragraph,  striking  out  "to  the  su- 
preme court,"  after  "taken";  (2)  in  subd.  2, 
(a)  striking  out  "or  refusing,"  before  "a  new 
trial,"  and  inserting  after  these  words,  "in  an 
action  or  proceeding  tried  by  a  jury  where  such 
trial  by  jury  is  a  matter  of  right,"  and  (b)  in- 
serting at  end  of  subdivision,  "and  interlocutory 
decrees  of  divorce." 

Construction  of  code  sections.  Under  the 
third  subdivision  of  this  section,  there  is 
no  limitation  upon  the  character  of  the 
proceeding  in  which  the  order  directing  the 
conversance  is  made,  and  the  appellate  court 
will  not  limit  it.  Estate  of  Pearsons,  98 
Cal.  603;  33  Pac.  451.  The  remedy  by  mo- 
tion in  the  sujierior  court  to  set  aside  and 
vacate  a  .judgment  unsupported  by  the  find- 
ings, and  to  enter  another  judgment  in  ac- 
cordance therewith,  provided  for  in  §§  663, 
663^2,  ante,  is  merely  cumulative,  and  was 
not  designed  to  supersede  the  remedy  by 
appeal  provided  in  this  section;  upon  such 
appeal,  the  judgment  may  be  reversed,  and 
the  court  directed  to  enter  the  judgment 
required  bv  the  findings.  Patch  v.  Miller, 
125  Cal.  240;  57  Pac.  986. 

Appellate  jurisdiction.  Where  the  de- 
mand in  suit  is  merely  for  money,  the  su- 
j)reme  court  has  no  appellate  jurisdiction, 
unless  such  demand,  exclusive  of  interest,* 
amounts   to   three   hundred   dollars.   Heni- 


1119 


APPEALABILITY — FINAL  JUDGMENT,   WHAT   IS. 


§  m.i 


gan  V.  Ervin,  110  Cal.  37;  42  Pac.  457. 
The  amount  of  money  involved  in  an  ap- 
peal from  an  order  of  the  superior  court 
taxing  costs  is  not  determinative  of  the 
jurisdiction  of  the  appellate  court.  Mever 
V.  Perkins,  20  Cal.  App.  661;  130  Pac.  206. 
The  supreme  court  acquires  jurisdiction  im- 
mediately ui)on  the  filinpf  of  the  notice  of 
appeal;  the  failure  to  file  a  transcrijit  on 
appeal,  or  the  loss  or  destruction  of  it 
after  it  is  filed,  does  not  alFect  such  iuris- 
diction.  Estate  of  Davis,  1.51  Cal.  318;  121 
Am.  St.  Rep.  105;  80  Pac.  183. 

Writ  of  error.  A  writ  of  error  will  not 
be  granted  in  any  case  where  an  appeal 
lies:  the  remedy  by  appeal  is  exclusive  in 
such  cases.  Sacramento  etc.  E.  E.  Co.  v. 
Harlan,  24  Cal.  334. 

Appeal  must  be  authorized.  The  appeal 
must  be  authorized  by  a  statute  or  a  rule 
of  court.  Ajipeal  of  Houghton,  42  Cal.  35. 
The  right  of  appeal  comes  from  the  stat- 
ute, not  from  any  unauthorized  action  of 
the  court.  Estate  of  Overton,  13  Cal.  App. 
117;  108  Pac.  1021. 

Appealability  determined  how.  The  ap- 
pealability of  an  or<ler  is  determined,  not 
from  its  form,  but  from  its  legal  effect 
(Estate  of  West,  162  Cal.  352;  122  Pac. 
953) ;  but  this  case  seems  to  hold  to  the 
contrarv  of  former  rulings  upon  this  point. 
Estate  of  Bullock,  75  Cal.  419;  17  Pac.  540; 
Harper  v.  Hildreth,  99  Cal.  265;  33  Pac. 
1103.  Appeals  can  be  taken  only  from  such 
judgments  on  orders  as  are  mentioned  in 
tliis  section.  Estate  of  Moore,  86  Cal.  58; 
24  Pac.  816;  Estate  of  Walkerly,  94  Cal. 
352;  29  Pac.  719;  Estate  of  Hickev,  121 
Cal.  378;  53  Pac.  818;  Estate  of  Cahill.  142 
Cal.  628;  76  Pac.  383.  A  judgment  of  the 
superior  court  granting  a  divorce  is  ap- 
pealable. Sharon  v.  Sharon,  67  Cal.  185; 
7  Pac.  456.  All  judgments  rendered  in 
special  civil  proceedings  of  a  summary 
character  are  appealable;  hence,  a  judg- 
ment in  an  action  to  remove  a  board  of 
supervisors  can  be  reviewed  upon  appeal. 
Morton  v.  Broderick,  118  Cal.  474;  50  Pac. 
644.  An  order  on  proceedings  supplemen- 
tary to  execution,  that  a  garnishee  pay  to 
the  plaintiff  the  amount  of  his  indebted- 
ness, is,  in  effect,  a  judgment,  and  appeal- 
able. Bronzan  v.  Drobaz,  93  Cal.  647;  29 
Pac.  254.  The  decision  of  a  judge  at  cham- 
bers, in  quo  warranto  proceedings,  is  ap- 
pealable. Brewster  v.  Hartley,  37  Cal.  15; 
99  Am.  Dec.  237.  The  discharge  of  a 
debtor  in  bankruptcy  proceedings  is  ap- 
pealable. Fisk  V.  His  Creditors,  12  Cal. 
281.  An  appeal  lies  from  a  judgment  ren- 
dered by  the  trial  court  in  conformity  with 
the  directions  of  the  appellate  court. 
Tuffree  v.  Stearns  Ranchos  Co.,  124  Cal. 
306;  57  Pac.  69;  Lambert  v.  Bates,  148 
Cal.  146;  82  Pac.  767;  Randall  v.  Duff,  107 
Cal.  33;  40  Pac.  20.  The  confirmation  of 
the  report  of  a  referee,  and  an  order  that 
judgment  be  entered  for  the  plaintiff, 
without    pronouncing    judgment    upon    the 


facts  found,  and  a  determination  of  the 
I)arti(ular  relief  to  which  the  plaintiff  is 
entitled,  is  not  the  rendition  of  a  judi;mcnt 
from  which  an  appeal  may  Ite  taken.  Harris 
V.  San  Francisco  Sugar  Refining  Co..  41 
Cal.  393.  A  judgment  under  stipulation, 
being  a  judgment  by  consent,  is  not  appeal- 
able. I'acific  Paving  Co.  v.  Vizolich,  1  Cal. 
App.  281  ;  82  Pac.  82.  The  presentation  of 
the  claim  of  a  court  reporter  for  his  fees 
and  expenses  in  criminal  cases,  to  the  judge 
or  court,  for  allowance,  is  not  an  action  or 
special  jiroceeding  in  which  an  appeal  lies, 
under  this  section.  Pipher  v.  Superior 
Court,  3  Cal.  App.  626;  86  Pac.  904.  An 
order  or  judgment  of  nonsuit  is  not  ap- 
pealable. Kimple  v.  Conwav,  69  Cal.  71; 
10  Pac.  1S9;  Leavens  v.  Pinkham,  164  Cal. 
242;  128  Pac.  399;  Eraser  v.  Sheldon,  164 
Cal.  165;  128  Pac.  33. 

Final  judgment,  what  is.  The  term 
"final  judgment,"  as  used  in  the  first  sub- 
division of  this  section, .  applies  only  to 
those  judgments  known  at  common  law 
as  final  judgments,  and  does  not  apply 
to  the  statutory  determinations  termed 
''orders  or  judgments,"  defined  in  the  third 
subdivision;  hence,  the  right  of  ai)peal  is 
exjiressly  given  from  certain  of  such  orders 
or  judgments.  Estate  of  Smith.  98  Cal. 
636;  33  Pac.  744.  Where  the  judgment 
is  the  only  judgment  provided  for  in  the 
act,  it  is  a  final  judgment,  in  the  strictest 
sense  of  the  term.  People  v.  Bank  of  Men- 
docino County,  133  Cal.  107;  65  Pac.  124; 
and  see  Stockton  etc.  Agricultural  Works 
V.  Glen  Falls  Ins.  Co.,  98  Cal.  557;  33  Pac. 
633.  The  term  "final  judgment."  as  used 
in  the  second  subdivision  of  this  section, 
has  the  same  meaning  as  that  term  has  as 
used  in  the  first  subdivision.  Estate  of 
Calahan,  60  Cal.  232;  Estate  of  Smith.  98 
Cal.  636;  33  Pac.  744.  An  injunction 
against  a  bank,  in  proceedings  by  bank 
commissioners,  made  as  a  part  of  the  judg- 
ment adjudging  the  bank  insolvent,  is  final, 
and  appealable.  People  v.  Bank  of  Men- 
docino County,  133  Cal.  107;  65  Pac.  124. 
A  judgment  under  the  Bank  Commis- 
sioners' Act,  to  the  effect  that  the  corpora- 
tion is  insolvent;  that  it  is  unsafe  for  it 
to  continue  business;  that  the  property  of 
the  corjtoration,  jireviously  sequestered  and 
in  the  hands  of  the  commissioners,  be  de- 
livered to  it  for  the  purji6se  of  liquida- 
tion, to  be  administered  under  the  direc- 
tion of  the  bank  commissioners;  that  the 
injunction  applied  for  be  issued, — is  a  final 
judsment,  and  appealable.  The  order  re- 
fusing to  modifj'  such  injunction  was 
proper.  Peoj^Ie  v.  Bank  of  Mendocino 
County,  133  Cal.  107;  65  Pac.  124.  An 
order  fixing  the  compensation  of  a  receiver, 
and  taxing  it  as  costs  against  all  the  par- 
ties, and  directing  the  receiver  to  apply 
towards  its  payment  the  balance  of  the 
fund  remaining  in  his  hands,  is,  in  legal 
effect,  a  final  judgment  upon  a  collateral 
matter   arising   out   of   the   action,   an  1   is 


§963 


APPEALS  TO  SUPREME  COURT. 


1120 


appealable.   Grant  v.  Los  Angeles  etc.  Ry. 
Co.,   116   Cal.   71;   47   Pac.   872.     An   order 
settling  the  account  of  a  receiver,  and  di- 
recting the  payment   of  his   compensation 
by  cue  of  the  parties,  although  made  be- 
fore hual  judgment  in  the  action,  is  a  final 
determination  of  the  rights  of  the  parties 
to  the  matter  then  before  the  court,  and  is 
apjiealable.     Los   Angeles    v.    Los    Angeles 
City  Water  Co.,  134  Cal.  121;  66  Pac.  198. 
An  order  setting  aside  an  order  settling  an 
account    of   the    assignee    of   an    insolvent 
debtor,  reported  by  a  referee  in  an  action 
by   creditors    to     set    aside    and   vacate   a 
fraudulent  assignment  of  the  insolvent,  is 
not  a  final  judgment,  and  is  not  appealable. 
Etchebarne    v.    Eoeding,    89    Cal.    517;    26 
Pac.  1079.     The  fact  that  an  injunction,  by 
its   terms,  was  until  further  order  of  the 
court,  cannot  affect  its  character  as  part 
of   the  final  judgment,  nor  does  it  render 
such  judgment   any  the   less  final.    People 
V.    Bank    of    Mendocino    County,    133    Cal. 
107;    65   Pac.    124.     An    order   substituting 
a  party  as  plaintiff  is  not  a  final  judgment, 
and  is  not  appealable.    Welch  v.  Allen,  54 
Cal.  211.     An  order  made  during  the  trial 
is  not  an  order  which,  under  this  section, 
is   appealable.    Eddv  v.   American   Amuse- 
ment Co.,  21   Cal.  App.  487;    132  Pac.   83; 
Steinberg  v.  Jacobs,  21  Cal.  App.  765;  132 
Pac.   1060.     An   order,   made   before   judg- 
ment, in  an  action  to  foreclose  a  mortgage, 
directing  the   application   of  the  proceeds 
of  the   mortgaged   property,  is   not,   in  its 
nature,  a  final  judgment,  and  is  not  appeal- 
able.  Illinois  etc.  Sav.  Bank  v.  Pacific  Ry. 
Co.,  99   Cal.  407;  33  Pac.   1132.     An  order 
discharging  the  petitioner  in   proceedings 
on  habeas  corpus  is  not  a  final  judgment, 
and  is  not  appealable.    Ex  parte  White,  2 
Cal.  App.  726;  84  Pac.  242. 

Final  judgment.  See  also  note  ante, 
§939. 

Order  dismissing  action  is  final  judg- 
ment. An  order  dismissing  an  action  is 
such  a  final  judgment  as  that  an  appeal 
may  be  taken  therefrom.  Dempsey  v. 
Underhill,  156  Cal.  718;  106  Pac.  73; 
Marks  v.  Keenan,  140  Cal.  33;  73  Pac. 
751;  Bell  v.  Solomons,  162  Cal.  105;  121 
Pac.  377.  An  order  adjudging  that  the 
plaintiff  is  barred  from  all  equity  of  re- 
demption or  other  right  to  the  property, 
and  dismissing  the  action,  is  a  final  judg- 
ment as  respects  the  rights  of  the  plaintiff, 
and  is  appealable.  Byrne  v.  Hudson,  127 
Cal.  254;  59  Pac.  597.  An  order  dismiss- 
ing an  action  for  failure  to  return  the 
summons  within  the  statutory  period  of 
three  years,  entered  in  the  minutes  of  the 
court,  is  a  final  judgment,  for  the  pur- 
pose of  an  appeal  therefrom.  Pacific  Pav- 
ing Co.  v.  Vizelich,  141  Cal.  4;  74  Pac. 
352.  A  judgment  upon,  demurrer  in  an 
action  against  a  justice  of  the  peace  and 
the  sureties  upon  his  official  bond,  dis- 
missing the  action  as  to  the  sureties  and 
leaving  it  still  pending  against  the  justice, 


is  not  a  final  judgment  disposing  of  the 
merits  of  the  whole  case,  and  an  attempted 
separate  appeal  from  the  judgment  of  dis- 
missal in  favor  of  the  sureties  is  prema- 
ture, and  must  be  dismissed  upon  motion. 
Nolan  V.  Smith,  137  Cal.  360;  70  Pac.  166. 
An  order  dismissing  a  cause  as  to  certain 
of  the  defendants  is  not  appealable  (Gates 
V.  Walker,  35  Cal.  289);  nor  is  an  order 
refusing  to  dismiss  an  action.  Forrester  v. 
Lawler,  14  Cal.  App.  170;  111  Pac.  284; 
Garthwaite  v.  Bank  of  Tulare,  134  Cal. 
237;  66  Pac.  326. 

What  considered  on  appeal  from  order 
dismissing  action.  The  dismissal  of  an 
action  for  lack  of  prosecution  is  without 
regard  to  the  merits  or  demerits  of  the 
cause  of  action;  and  upon  a  review  on 
appeal  from  such  an  order,  the  fact  that 
the  records  show  a  cause  of  action  in  favor 
of  the  plaintiff  will  not  be  considered. 
Bell  V.  Solomons,  162  Cal.  105;  121  Pac. 
377.  Where  the  court  denies  a  plaintiff's 
motion  to  dismiss  an  action  in  interven- 
tion, for  a  delay  of  five  years  in  prosecu- 
tion after  the  plaintiff  has  filed  his  answer, 
and  of  its  own  motion  orders  the  entire 
action  to  be  dismissed,  the  plaintiff  cannot, 
on  an  appeal  from  the  order  of  dismissal, 
urge  as  error  the  denial  of  the  motion  to 
dismiss  the  action  in  intervention.  Demp- 
sey V.  Underhill,  156  Cal.  718;  106  Pac.  73. 
Matters  reviewable  upon  direct  appeal 
from  a  judgment  of  dismissal  will  not  be 
reviewed  on  an  appeal  from  an  order  re- 
fusing to  vacate  the  order  of  dismissal. 
Bell  V.  Solomons,  162  Cal.  105;  121  Pac. 
377. 

Appeal  does  not  lie  from  order  dismiss- 
ing proceedings  when.  No  appeal  lies  from 
an  order  improperly  dismissing  proceedings 
for  want  of  jurisdiction:  such  order  is  not 
a  judgment;  but  mandate  lies,  in  a  proper 
case,  to  compel  a  hearing.  Scott  v.  Shields, 
8  Cal.  App.  12;  96  Pac.  385. 

Regarding  default.  An  order  denying 
a  motion  to  set  aside  a  judgment  by  de- 
fault is  appealable  (McCormick  v.  Belvin, 
96  Cal.  182;  31  Pac.  16);  as  is  also  an 
order,  made  after  judgment,  refusing,  upon 
motion  of  the  plaintiff,  to  set  aside  the  de- 
fault of  a  defendant,  and  to  fix  a  time 
within  which  the  defendant  should  plead 
(Thompson  v.  Alford,  128  Cal.  227;  60  Pac. 
686) ;  and  an  order  refusing  to  relieve  the 
appellant  from  default  in  failing  to  serve  a 
notice  of  intention  to  move  for  a  new  trial 
within  the  statutory  time  (Steen  v.  Santa 
Clara  etc.  Lumber  Co.,  145  Cal.  564;  79  Pac. 
171);  and  an  appeal  may  be  taken  from  a 
judgment  by  default,  entered  by  the  clerk; 
and  the  existence  of  a  remedy  by  motion  in 
the  superior  court  to  set  it  aside,  if  irregu- 
lar or  void,  cannot  affect  the  right  of  ap- 
peal nor  justify  a  motion  to  dismiss  the 
appeal.  .Jameson  v.  Simonds  Saw  Co.,  144 
Cal.  3;  77  Pac.  662.  An  order  setting  aside 
a  defendant's  default,  entered  by  the  clerk,, 
but  ui^on  which  no  judgment  has  been  en- 


* 


1121 


CASES  COMMENCED  IN  JUSTICE  S  COURT — FINAL  JUDGMENT. 


§963 


tered,  is  not  appealable  (Rauer's  Law  etc. 
Co.  V.  Standley,  3  Cal.  App.  44;  S4  Pac. 
214;  Rose  v.  Lelande,  17  Cal.  App.  3US; 
119  Pac.  532;  Savage  v.  Smith,  154  Cal. 
325;  97  Pac.  S21);  nor  is  an  order  deny- 
ing a  motion  for  judgment  by  default,  and 
for  the  removal  of  a  guardian,  as  prayed 
for  in  the  defendant's  cross-complaint. 
Broadribb  v.  Tibbcts,  (iU  Cal.  412. 

Cases  commenced  in  justice's  court.  No 
api)eal  lies  to  the  supreme  court  from  any 
judgment  or  order  made  in  the  superior 
court  upon  appeal  from  the  judgment  of  a 
justice's  court,  and  no  writ  of  error  there- 
from is  tenable.  Pool  v.  Sujierior  Court,  2 
Cal.  App.  533;  84  Pac.  53.  The  supreme 
court  has  no  jurisdiction  of  an  appeal  from 
a  judgment  of  the  superior  court,  rendered, 
in  an  action  to  recover  the  rent  of  land,  on 
appeal  from  a  justice's  court,  although  the 
complaint  contains  an  allegation  of  the 
possession,  by  the  defendant,  of  the  de- 
mised premises.  O'Meara  v.  Hables,  163 
Cal.  240;  124  Pac.  1003.  An  action  bought 
in  a  justice's  court  to  enforce  disputed 
claims  of  emj)loyees  of  an  execution  debtor 
for  wages,  and  taken  by  appeal  to  the  su- 
perior court,  is  not  appealable  to  the  su- 
preme court,  under  the  first  subdivision  of 
this  section.  Edsall  v.  Short,  122  Cal.  533; 
55  Pac.  327.  A  special  order,  refusing  to 
strike  out  a  cost-bill,  in  the  superior  court, 
in  a  case  appealed  from  a  justice's  court, 
is  not  appealable  to  the  supreme  court, 
although  the  cost-bill  amounts  to  over  three 
hundred  dollars.  Henigan  v.  Ervin,  110 
Cal.  37;  42  Pac.  457.  Where  the  case  is 
one  in  which  the  supreme  court  has  ap- 
pellate jurisdiction  under  the  constitution, 
notwithstanding  the  fact  that  it  was  com- 
menced in  the  justice's  court,  the  practice 
of  taking  an  appeal  first  to  the  superior 
court  and  next  to  the  supreme  court  is 
probably  correct,  in  view  of  the  first  sub- 
division of  this  section.  Edsall  v.  Short, 
122  Cal.  533;  55  Pac.  327.  The  supreme 
court  has  jurisdiction  of  an  appeal  from 
an  order  of  the  superior  court,  on  cer- 
tiorari, annulling  an  order  of  a  justice's 
court.  Heinlen  v.  Phillips,  88  Cal.  557;  26 
Pac.  366;  but  see  contra,  Bienenfeld  v. 
Fresno  Milling  Co.,  82  Cal.  425;  22  Pac. 
1113. 

Separate  appeals.  Every  judgment,  and 
every  order  subsequent  to  judgment,  en- 
tered against  a  party,  is  the  subject  of  a 
distinct  and  separate  appeal,  and  must  be 
appealed  from  as  an  entirety;  no  separate 
appeal  lies  from  parts  of  two  judgments: 
each  should  be  appealed  from  by  a  notice 
and  an  undertaking  of  its  own.  People  v. 
Center,  61  Cal.  191;  Sharon  v.  Sharon,  68 
Cal.  326;  9  Pac.  187. 

Void  orders  and  judgment.  Void  orders 
are  appealable.  Estate  of  Bullock,  75  Cal. 
419;  17  Pac.  540.  Thus,  a  void  judgment 
of  a  superior  court,  rendered  upon  an  ap- 
peal from  a  void  judgment  of  a  justice  of 
the  peace,  is  appealable  (De  Jarnatt  v. 
1  Fair. — 71 


Marquez,  127  Tal.  55S;  78  Am.  St.  Rep.  90; 
60  Pac.  45);  as  is  also  a  void  judgment 
rendered  by  a  court  without  jurisdii-tion, 
or  coram  non  judice,  wiierc  it  is  entered  in 
form  as  a  judi;ment  in  the  record.**  of  the 
court,  upon  which  final  process  might  be 
issued.  Meried  Bank  v.  Rosenthal,  99  Cal. 
;;!);  31  Pac.  S49. 

Denying  continuance.  An  order  denying 
a  continuance  is  not  appealable.  Haraszthy 
V.  llorton,  -16  Cal.  545. 

What  may  be  reviewed  on  appeal  from 
the  judgment.     See  note  ante,  §  '.(."i;. 

New-trial  order  appealable  when.  \n 
order  granting  or  refusing  a  new  trial  is 
appealable  where  a  new  trial  is  authorized. 
People  V.  Oakland,  123  Cal.  145;  55  Pac. 
772;  Estate  of  Sutro,  152  Cal.  249;  92  Pac. 
4S6,  1027;  Harper  v.  Hildreth.  99  Cal.  265; 
33  Pac.  1103.  An  order  granting  or  deny- 
ing a  motion  for  a  new  trial  may  be  re- 
viewed upon  an  appeal  taken  in  time, 
notwithstanding  the  judgment  may  be  final. 
Houser  etc.  Mfg.  Co.  v.  Hargrove.  129  Cal. 
90;  61  Pac.  660.  An  order  granting  or 
denying  a  new  trial  in  a  contest  over  the 
probate  of  a  will  is  ajjpealable,  in  cases 
where  a  new  trial  is  authorized.  Estate  of 
Doyle,  68  Cal.  132;  8  Pac.  691;  Estate  of 
Baiiquier,  88  Cal.  302;  26  Pac.  178;  Estate 
of  Spencer,  96  Cal.  448;  31  Pac.  453;  Estate 
of  Smith,  98  Cal.  636;  33  Pac.  744;  Hart- 
mann  v.  Smith,  140  Cal.  461;  74  Pac.  7.  .■\n 
order  granting  a  motion  to  dismiss  proceed- 
ings on  motion  for  a  new  trial  is  appeal- 
able (Kokole  v.  Superior  Court,  17  Cal. 
App.  454;  120  Pac.  67);  as  is  also  an  order 
dismissing  a  motion  for  a  new  trial  for 
want  of  prosecution,  as  that  amounts  to  a 
denial  of  it.  Voll  v.  Hollis,  60  Cal.  569. 
An  order  refusing  to  dismiss  a  motion  for 
a  new  trial  is  not  appealable:  such  order 
does  not  finally  dispose  of  the  motion  itself 
(Griess  v.  State  Investment  etc.  Co.,  93 
Cal.  411;  28  Pac.  1041);  nor  is  an  order 
denying  a  motion  for  a  new  trial  in  an 
action  for  divorce  appealable,  where  there 
was  no  trial  upon  issues  of  fact,  and  judg- 
ment was  entered  for  want  of  an  answer: 
in  such  case  there  is  no  oflSce  to  be  sub- 
served by  a  new  trial.  Folev  v.  Foley,  120 
Cal.  33;  65  Am.  St.  Rep.  14*7;  52  Pac.  122. 
An  appeal  by  the  plaintiff  may  be  pre- 
sented with  an  appeal  by  the  defendants 
from  an  order  denving  their  motion  for  a 
new  trial.  Blood  v.'Munn,  155  Cal.  228;  100 
Pac.  694.  An  ajipeal  from  an  order  deny- 
ing a  new  trial,  taken  within  proper  time, 
may  be  considered,  though  the  appeal  from 
the  judgment  was  not  taken  in  time.  Chase 
v.  Holmes,  19  Cal.  App.  670;  127  Pac.  652. 
Where  the  appeal  from  the  judgment  was 
taken  more  than  six  months  after  its  en- 
try, that  appeal  may  be  dismissed,  and  the 
review  must  be  limited  to  the  appeal  from 
the  order  denving  a  new  trial.  Breiden- 
bach  v.  McCormick  Co.,  20  Cal.  App.  184; 
128  Pac.  423. 


§963 


APPEALS   TO   SUPREME  COURT. 


1122 


Review,  •where  no  abuse  of  discretion 
shown.  A  general  order  granting  a  new 
trial  to  the  plaintiff  will  not  be  disturbed 
upon  appeal,  if  there  is  any  ground  upon 
which  the  court  could  reasonably,  in  the 
exercise  of  a  proper  discretion,  have 
granted  a  new  trial.  Pollitz  v.  Wicker- 
sham,  150  Cal.  23S;  88  Pae.  911;  Witter  v. 
Redwine,  14  Cal.  App.  393;  112  Pac.  311; 
Hughes  V.  Rawhide  Gold  Mining  Co.,  16 
Cal.  App.  293;  116  Pac.  969;  Shea-Bocque- 
raz  Co.  V.  Hartman,  20  Cal.  App.  534;  129 
Pac.  807.  Where  there  is  a  substantial 
conflict  of  evidence,  the  granting  of  a  new 
trial  upon  the  ground  of  the  insufficiency 
of  the  evidence  is  conclusive  upon  the  ap- 
pellate court,  in  the  absence  of  a  showing 
that  the  action  of  the  trial  court  was  an 
abuse  of  discretion.  McCarthy  v.  Morris, 
17  Cal.  App.  723;  121  Pac.  696.  The  ac- 
tion of  the  trial  court  in  granting  or  deny- 
ing a  new  trial  will  not  be  disturbed  upon 
appeal,  where  no  abuse  of  discretion  is 
shown.  Serpiglio  v.  Downing,  14  Cal.  App. 
683;  112  Pac.  905.  The  trial  court  has 
a  discretion  in  granting  or  denying  a  new 
trial  on  the  ground  of  newly  discovered 
evidence,  and  such  discretion,  unless  a 
clear  abuse  thereof  is  shown,  will  not  be 
disturbed  upon  appeal.  Rockwell  v.  Italian- 
Swiss  Colony,  10  Cal.  App.  633;  103  Pac. 
162;  Smith  v.  Hyer,  11  Cal.  App.  597; 
105  Pac.  787;  Foley  v.  Northern  California 
Power  Co.,  14  Cal.  App.  401;  112  Pac.  467; 
Serpiglio  v.  Downing,  14  Cal.  App.  683;  112 
Pac.  905;  Union  Lumber  Co.  v.  Webster,  15 
Cal.  App.  165;  113  Pac.  891;  Spencer  v. 
Clarke,  15  Cal.  App.  512;  115  Pac.  248;  Es- 
tate of  Doolittle,  153  Cal.  29;  94  Pac.  240; 
Estate  of  Dolbeer,  153  Cal.  652;  15  Ann. 
Cas.  207;  96  Pac.  266;  People  v.  Bennett, 
161  Cal.  214;  118  Pac.  710;  People  v.  Selby 
Smelting  etc.  Co.,  163  Cal.  84;  Ann.  Cas. 
1913E,  1267;  124  Pae.  692.  The  action  of 
the  trial  court  in  granting  or  denying  a 
new  trial  for  insufficiency  of  the  evidence 
to  support  the  verdict  or  to  justify  the  de- 
cision, will  not  be  disturbed  upon  appeal, 
where  no  abuse  of  discretion  appears.  Es- 
tate of  Everts,  163  CaL  449;  125  Pac.  1058; 
Shea-Bocqueraz  Co.  v.  Hartman,  20  Cal. 
App.  534;  129  Pac.  807;  Walker  v.  Beau- 
mont Land  etc.  Co.,  15  Cal.  App.  726;  115 
Pac.  706;  Webster  v.  Suiter,  15  Cal.  App. 
390;  114  Pac.  1007;  Colon  v.  Tosetti,  14  Cal. 
App.  693;  113  Pae.  366;  Brown  v.  Northern 
Calif ornia  Power  Co.,  14  Cal.  App.  661;  114 
Pac.  54;  Witter  v.  Redwine,  14  Cal.  App. 
393;  112  Pac.  311.  Although  there  may  be 
some  conflict  in  the  testimony,  yet  it  is  the 
duty  of  the  trial  court  to  grant  a  new  trial 
on  the  ground  of  insufficiency  of  the  evi- 
dence, whenever  the  judge  is  convinced 
that  the  verdict  is  clearly  against  the 
weight  of  the  evidence;  and  his  action  in 
that  regard  will  not  be  disturbed,  unless 
an  abuse  of  discretion  is  shown.  Weisser 
V.  Southern  Pacific  Ry.  Co.,  148  Cal.  426;  7 
Ann.  Cas.  636;  83  Pac.  439. 


Order  granting  new  trial.   Contents.    Any 

limitation  of  an  order  granting  a  new  trial, 
to  be  effectual,  must  be  specified  in  the 
order  itself.  Classen  v.  Thomas,  164  Cal. 
196;  128  Pac.  329;  Weisser  v.  Southern 
Pacific  Rv.  Co.,  148  Cal.  426;  7  Ann.  Cas. 
636;  83  Pac.  439. 

Necessity  of  application  for.  On  appeal 
from  an  order  granting  a  new  trial,  the 
appellant's  objection,  that  the  order  was 
made  without  an  application  therefor  by 
respondent,  is  untenable,  where  the  record 
shows  that  a  hearing  was  had,  with  coun- 
sel for  both  parties  present,  and  that  the 
court  ordered  a  new  trial.  Hovey  v.  Thorp, 
17  Cal.  App.  677;  121  Pac.  303. 

Should  be  sustained  when.  On  appeal 
from  an  order  granting  a  new  trial,  it  is 
the  duty  of  the  appellate  court  to  sustain 
the  order,  if  it  can  be  upheld  upon  any 
ground  embodied  in  the  notice  of  intention. 
Shea-Bocqueraz  Co.  v.  Hartman,  20  CaL 
App.  534;  129  Pac.  807. 

Effect  of  order.  Where  the  plaintiff,  in 
an  action  for  personal  injuries,  obtains 
judgment  for  damages,  prior  to  his  death, 
proceedings  to  obtain  a  new  trial  operate 
merely  to  suspend  the  judgment  until  the 
final  disposition  of  the  motion;  if  the  mo- 
tion is  finally  denied,  the  judgment  for 
damages  will  stand.  Fowden  v.  Pacific 
Coast  S.  S.  Co.,  149  Cal.  151;  86  Pac.  178. 

Notice  of  order.  One  appealing  from  au 
order  denying  a  new  trial  is  not  entitled  to 
notice  of  the  entry  of  the  order:  he  must 
take  notice  and  inform  himself  thereof. 
Bell  V.  Staacke,  148  Cal.  404;  83  Pac.  245. 

"When  service  of  notice  necessary.  The 
time  for  the  doing  of  an  act,  or  the  taking 
of  a  step  in  a  proceeding  in  court,  begins- 
to  run  from  the  service  of  a  notice,  only  in 
cases  where,  by  some  law  or  rule  of  court^ 
it  is  so  provided.  Bell  v.  Staacke,  148  CaL 
404;  83  Pac.  245. 

Service  of  notice  of  motion  for  new  trial. 
A  failure  to  serve  the  notice  of  motion  for 
a  new  trial  on  an  adverse  party  necessi- 
tates a  denial  of  the  motion,  and,  on  ap- 
peal, an  affirmance  of  the  order  denying 
such  motion.  Johnson  v.  Phenix  Insurance 
Co.,  152  Cal.  196;  92  Pac.  182;  National 
Bank  v.  Mulford,  17  Cal.  App.  551;  120- 
Pac.  446. 

Review  of  order,  when  no  bill  presented. 
An  order  denying  a  new  trial  must  be  af- 
firmed on  appeal,  where  no  statement  was 
settled  upon  the  motion  for  a  new  trial.  De 
Mitchell  V.  Croake,  20  Cal.  App.  643;  129 
Pac.  946.  Where  there  is  no  settled  state- 
ment or  bill  of  exceptions  to  be  used  upon  a 
motion  for  a  new  trial,  the  order  denying 
a  new  trial  must  be  affirmed  upon  appeal 
therefrom.  Machado  v.  Kinney,  135  Cal. 
354;  67  Pae.  331.  Error  in  refusing  to 
settle  a  proposed  statement  to  be  used  on 
motion  for  a  new  trial  cannot  be  taken  ad- 
vantage of  by  an  appeal  from  the  order 
denying  the  motion:  the  proper  remedy  is 
a    proceeding    to    compel    the    settlement.' 


1123 


REVIEW  WITHOUT  BILL — LIMITED   HOW. 


§    903 


Estudillo  V.  Serurity  Loan  etc.  Co.,  l.'S 
Cal.  (j(5;  1U9  Pac.  SSL  Tlic  incorporation, 
in  a  bill  of  exceptions,  of  an  unsettled  pro- 
posed statement,  does  not  entitle  it  to  con- 
sideration, on  appeal,  as  a  statement  in 
support  of  the  motion  for  a  new  trial.  De 
Mitchell  V.  CroaUe,  20  Cal.  App.  G4.3;  129 
Pac.  946.  A  preliminary  objection  to  the 
hearing  of  an  appeal  from  an  oriler  deny- 
ing a  new  trial,  that  the  bill  of  oxi'ei)tinns 
was  not  presented  in  time,  is  without  merit. 
Bolliuoer  v.  Bollinger,  153  Cal.  19U;  94  Pac. 
770.  Where  the  record  on  appeal  from  an 
order  denying  a  new  trial  contains  no  bill 
of  exceptions  or  statement  of  the  case 
settled  and  signed  by  the  judge  who  tried 
the  case,  the  error  cannot  be  reviewed  on 
appeal.  Pereira  v.  City  Savings  Bank,  128 
Cal.  45;  60  Pac.  524.  Upon  appeal  from 
an  order  refusing  a  new  trial,  alleged 
errors  of  law  committed  at  the  trial  cannot 
be  reviewed,  where  the  bill  of  exceptions 
fails  to  indicate  any  ruling  of  the  court, 
or  any  exception  made  in  behalf  of  the  ap- 
pellant (Smith  V.  Smith,  163  Cal.  630;  126 
Pac.  475);  nor  can  an  alleged  error  in  ex- 
cluding depositions  be  considered,  where 
such  depositions  are  not  incorporated  in 
the  bill  of  exceptions,  and  the  record  shows 
no  error  in  the  ruling  (Oldershaw  v.  Mat- 
teson  &  Williamson  Mfg.  Co.,  19  Cal.  App. 
180;  125  Pac.  263);  nor  can  unauthenti- 
cated  affidavits,  charging  misconduct  of 
the  respondent,  be  considered,  where  they 
are  not  incorporated  in  a  bill  of  exceptions 
(Cook  V.  Suburban  Realty  Co..  20  Cal.  App. 
538;  129  Pac.  801);  nor  can  the  ground  of 
newly  discovered  evidence  be  reviewed, 
when  the  affidavits  showing  the  same  are 
not  referred  to  nor  included  in  the  au- 
thenticated bill  of  exceptions.  Schroeder 
V.  Mauzy,  16  Cal.  App.  443;  118  Pac.  459; 
West  V.  Mears,  17  Cal.  App.  718;  121  Pac. 
700.  Unauthenticated  affidavits  cannot  be 
considered  on  appeal  from  an  order  refus- 
ing to  vacate  a  judgment  and  to  grant  a 
new  trial.  Estate  of  Dean.  149  Cal.  487;  87 
Pac.  13.  An  order  granting  a  new  trial, 
based  upon  a  bill  of  exceptions,  should  be 
affirmed,  if  the  bill  can  jjroperly  be  con- 
sidered, and  justifies  the  order;  otherwise 
the  order  should  be  reversed.  Pollitz  v. 
Wickersham,  150  Cal.  238;  88  Pac.  911.  A 
statement  on  appeal  cannot  be  annexed  to 
an  order  granting  or  refusing  a  new  trial. 
Quivey  v.  Gambcrt,  32  Cal.  304. 

Effect  of  appeal.  An  appeal  from  an 
order  denying  a  new  trial  deprives  the  su- 
perior court  of  jurisdiction  to  set  aside 
such  order.  Merced  Bank  v.  Price,  152  Cal. 
S97;  93  Pac.  866. 

Review  limited  to  grounds  and  record 
of  trial  court.  An  order  denying  a  new 
trial  cannot  be  reviewed,  if  the  settled 
statement  used  upon  the  hearing  of  the 
motion  fails  to  show  the  motion  itself,  or 
the  grounds  upon  which  the  defendant  re- 
lied for  a  new  trial.  Carver  v.  San  .Toaquin 
Cigar  Co.,  16   Cal.  App.  761;   118  Pac.  92. 


T'pon  apjieal  from  an  or<ler  denying  a  new 
trial,  the  apjicilate  court  is  limited,  in  its 
review,  to  the  grounds  ujion  whiih  the 
lower  court  was  authorized  to  grant  or 
deny  a  new  trial,  ami  cannot  review  the 
sufficiency  of  the  pleadings  or  findings  to 
Kui)port  the  judgment,  nor  consider  any 
errors  in  the  conclusions  of  law  or  in  the 
judgment.  Swift  v.  Oi-cidental  Mining  etc. 
Co.,  141  Cal.  161;  74  Pac.  700;  Creat  West- 
ern Gold  Co.  V.  Chambers,  153  Cal.  307,  9.") 
Pac.  151;  Stockton  Iron  Works  v.  Walters, 
18  Cal.  App.  373;  123  Pac.  240;  Sebring  v. 
Harris,  20  Cal.  App.  56;  128  Pac.  7.  Even 
though  the  order  granting  a  new  trial  de- 
clares that  the  motion  is  granted  for  one 
or  more  reasons  only,  the  apjiellate  court  is 
not  precluded  from  considering  any  other 
assigned  ground  upon  which  the  motion 
should  have  been  granted,  subject  only  to 
the  limitation  that  the  trial  court  may  re- 
strict the  order  granting  the  motion,  so  as 
to  exclude,  as  a  ground  of  its  action,  the 
insufficiency  of  the  evidence;  but  such  ex- 
clusion, to  be  effectual,  must  be  declared 
in  the  order  itself.  Briggs  v.  Hall,  20  Cal. 
App.  372;  129  Pac.  288.  The  appellate 
court,  in  reviewing  an  order  granting  a 
new  trial,  is  not  limited  to  the  grounds  ex- 
pressly stated  in  the  order,  but  will  affirm 
the  order,  if  it  was  correctly  made,  upon 
any  ground  upon  which  the  motion  was 
based,  except  upon  the  single  question  as 
to  the  sufficiency  of  the  evidence,  where  it 
is  conflicting.  Thompson  v.  California  Con- 
struction Co.,  148  Cal.  35;  82  Pac.  367; 
Wendling  Lumber  Co.  v.  Glenwood  Lumber 
Co.,  153  Cal.  411;  95  Pac.  1029;  Brett  v. 
Frank,  153  Cal.  267;  94  Pac.  1051.  The 
action  of  the  trial  court  in  limiting  the 
ground  for  granting  a  new  trial,  does  not 
restrict  the  appellate  court  in  examining 
the  record  to  ascertain  any  other  ground 
for  granting  a  new  trial,  except  the  suffi- 
ciency of  the  evidence,  where  it  is  conflict- 
ing. Weisser  v.  Southern  Pacific  Ry.  Co., 
148  Cal.  426;  7  Ann.  Cas.  636;  83  Pac.  439. 
The  appellate  court  is  precluded  from  con- 
sidering the  defendant's  appeal  from  an 
order  denying  his  motion  for  a  new  trial, 
where  the  statement  of  the  ease,  as  settled 
b}'  the  trial  judge,  does  not  show  the  mo- 
tion or  the  grounds  therefor,  but,  on  his 
appeal  from  the  judgment,  the  court  may 
review  alleged  errors  of  law  occurring  at 
the  trial,  upon  the  statement  of  the  caso 
used  upon  the  motion  for  a  new  trial  and 
found  in  the  record.  Carver  v.  San  Joaquia 
Cigar  Co.,  16  Cal.  App.  761;  118  Pac.  92. 
An  order  granting  or  refusing  a  new  trial 
can  be  reviewed  onlj'  on  the  record  made 
and  settled  before  the  order  was  made. 
Ouivey  v.  Gambert,  32  Cal.  304;  Merce.l 
Bank  v.  Price,  152  Cal.  697;  93  Pac.  866. 
Upon  an  appeal  from  an  order  ilenying  a 
new  trial,  the  scope  of  the  inquiry  is  lim- 
ited to  the  order  appealed  from,  and  the 
judgment  roll  and  the  affidavits  or  bill  of 
exceptions  or  statement  used  on  the  hear- 


§963 


APPEALS    rO   SUPREME  COURT. 


1124 


ing  (Emcric  v.  Alvarado,  64  Cal.  529;  2 
Pac.  418) ;  and  where  the  record  does  not 
contain  the  notice  of  intention,  nor  show 
the  grounds  of  the  motion  or  order,  neither 
the  evidence  nor  the  order  itself  can  be  re- 
viewed thereon  (Morcom  v.  Baiersky,  16 
Cal.  App.  480;  117  Pac.  560);  nor  can  an 
affidavit,  not  shown  to  have  been  used  on 
the  motion  for  a  new  trial,  be  considered, 
though  it  states  good  grounds  for  a  new 
trial.  Broads  v.  Mead,  159  Cal.  765;  Ann. 
Cas.  1912C,  1125;  116  Pac.  46. 

Record  on  new  trial.  See  also  note  ante, 
§952. 

Sufficiency  of  evidence  to  sustain  find- 
ings. Whether  the  findings  are  supported 
by  the  evidence  may  be  reviewed  on  an  ap- 
peal from  an  order  denying  a  motion  for 
a  new  trial.  Suisun  Lumber  Co.  v.  Fairfield 
School  District,  19  Cal.  App.  587;  127  Pac. 
349.  On  appeal  from  an  order  denying  a 
new  trial,  the  sufficiency  of  the  evidence 
to  sustain  the  findings  is  reviewable,  but 
the  findings  cannot  be  examined  to  deter- 
mine whether  they  support  the  judgment: 
that  question  may  be  considered  only  on 
appeal  from  the  judgment.  Bennett  v.  Pot- 
ter, 16  Cal.  App.  183;  116  Pac.  681;  and 
see  Foster  v.  Butler,  164  Cal.  623;  130  Pac. 
6.  The  right  of  the  appellants  to  have  the 
sufficiency  of  the  evidence  to  sustain  the 
findings  reviewed,  upon  appeal  from  an 
order  denying  a  new  trial,  is  not  aff'eeted 
by  the  fact  that  the  appeal  was  not  taken 
within  sixty  days,  nor  by  their  failure  to 
move,  under  §§  663,  663a,  ante,  to  set  the 
judgment  aside.  J.  F.  Parkinson  Co.  v. 
Building  Trades  Council,  154  Cal.  581;  16 
Ann.  Cas.  1165;  21  L.  E.  A.  (N.  S.)  550;  98 
Pac.  1027. 

Review  of  evidence.  The  sufficiency  of 
the  evidence  to  support  a  finding  cannot  be 
reviewed  upon  appeal  from  an  order  deny- 
ing a  new  trial,  in  the  absence  of  specifica- 
tions of  insufficiency,  as  prescribed  in  §  648, 
ante.  Layne  v.  Johnson,  19  Cal.  App.  95; 
124  Pac.  860.  Although  the  record  on  ap- 
peal fails  to  contain  a  copy  of  the  notice 
of  intention  to  move  for  a  new  trial,  yet 
the  evidence  may  be  reviewed  on  appeal 
from  an  order  refusing  a  new  trial,  where 
the  record  does  contain  a  bill  of  exceptions 
in  which  the  insufficiency  of  the  evidence 
to  sustain  the  findings  is  specified.  Dennis 
V.  Gordon,  163  Cal.  427;  125  Pac.  1063. 
Where  the  bill  of  exceptions  does  not 
specify,  either  generally  or  specially,  the 
particulars  wherein  the  evidence  is  insuffi- 
cient, its  insufficiency  cannot  be  reviewed 
upon  appeal  from  the  order  denying  a  new 
trial.  First  National  Bank  v.  Trognitz,  14 
Cal.  App.  176;  111  Pac.  402. 

Conflicting  evidence.  The  supreme  court 
will  not  disturb  the  ruling  of  the  trial 
court,  on  a  motion  for  a  new  trial,  upon  the 
ground  of  insufficiency  of  the  evidence, 
where  the  evidence  is  conflicting.  Fowden 
V.  Pacific  Coast  S.  S.  Co.,  149  Cal.  151;  86 
Pac.  178.     It  is  the  duty  of  a  trial  judge 


to  grant  a  new  trial  if  he  is  not  satisfied 
with  the  verdict,  in  a  case  tried  by  a  jury, 
or  with  the  findings,  if  tried  by  the  court: 
he  is  not  bound  by  the  rule  as  to  conflict- 
ing evidence,  as  is  the  supreme  court. 
Pollitz  v.  Wickersham,  150  Cal.  238;  88  Pac. 
911.  Where  there  is  any  appreciable  con- 
flict in  the  evidence,  an  order  granting  a 
new  trial  for  insufficiency  of  the  evidence 
to  sustain  the  verdict  is  not  reviewable. 
Harloe  v.  Berwick,  7  Cal.  Unrep.  58;  70 
Pac.  1060.  The  action  of  the  trial  court  in 
granting  a  new  trial  upon  the  ground  that 
the  evidence  is  insufficient  to  justify  the 
decision,  is  not  open  for  review  on  appeal, 
if  there  is  any  appreciable  conflict  in  the 
evidence.  Hughes  Bros.  v.  Eawhide  Gold 
Mining  Co..  16  Cal.  App.  296;  116  Pac.  969; 
Briggs  V.  Hall,  20  Cal.  App.  372;  129  Pac. 
288.  An  order  granting  a  new  trial  will 
not  be  disturbed  ujion  appeal,  where  in- 
sufficiency of  the  evidence  to  justify  the 
decision  is  one  of  the  grounds  specified  in 
the  notice  of  intention,  and  where  the  rec- 
ord upon  appeal  does  not  disclose  whether 
or  not  the  evidence  was  conflicting:  it  is 
only  where  the  evidence  shows  an  uncon- 
tradicted state  of  facts  in  favor  of  a  party 
to  an  action  that  a  question  of  law  arises, 
which  an  appellate  court  may  consider. 
McCann  v.  McCann,  20  Cal.  App.  567;  129 
Pac.  965. 

Objection  to  evidence.  An  objection  to 
evidence,  on  the  ground  that  the  complaint 
does  not  state  a  cause  of  action,  cannot  be 
reviewed  upon  appeal  from  an  order  deny- 
ing a  new  trial.  Spaeth  v.  Ocean  Park 
Realty  etc.  Co.,  16  Cal.  App.  329;  116  Pac. 
980. 

Review  of  errors,  verdict,  and  decision. 
Only  upon  an  appeal  from  the  judgment 
can  the  court  consider  errors  apparent  upon 
the  judgment  roll,  or  review  the  verdict  or 
decision,  if  excepted  to,  or  errors  assigned 
on  a  statement  on  appeal:  such  matters 
cannot  be  considered  upon  an  appeal  from 
an  order  denying  a  new  trial.  Thompson  v. 
Patterson,  54  Cal.  542.  Error  in  overrul- 
ing a  motion  for  a  new  trial,  made  on  the 
ground  that  the  decision  was  one  "against 
law,"  may  be  reviewed  on  appeal  from  the 
order.  Great  W^estern  Gold  Co.  v.  Cham- 
bers, 153  Cal.  307;  95  Pac.  151.  The  fail- 
ure of  the  trial  court  to  make  a  finding  of 
fact  upon  a  material  issue  renders  the  de- 
cision one  "against  law,"  and  error  in 
overruling  a  motion  for  a  new  trial,  made 
on  that  ground,  may  be  reviewed  on  appeal 
from  the  order.  Great  Western  Gold  Co.  v. 
Chambers,  153  Cal.  310;  95  Pac.  151;  Lyden 
v.  Spohn-Patrick  Co.,  155  Cal.  177;  100  Pac. 
236;  Cargnani  v.  Cargnani,  16  Cal.  App.  96; 
116  Pac.  306.  A  verdict  or  other  decision 
of  fact  may  be  reviewed  upon  an  appeal 
from  an  order  denying  a  motion  for  a  new 
trial.  Schroeder  v.  Mauzy,  16  Cal.  App. 
443;  118  Pac.  459. 

Regarding  pleadings.  An  order  direct- 
ing that  a  complaint  be  made  more  definite  ' 


1125 


REVIEW  OF  PLEADIXOS  AND   FlNDlXtiS — ORDERS. 


§  9(33 


and  certain  is  not  appealable.  MfFarland 
V.  Holcomh,  123  Cal.  84;  5.1  Pac.  7G1.  No 
appeal  lies  from  an  order  sustaining  or 
overrulintj  a  demurrer.  Wood  v.  Missouri 
Pacific  liy.  Co.,  152  Cal.  344;  92  Pac.  S(iS; 
Foster  v.  Bowles,  138  Cal.  449;  71  Pac.  495; 
Hanke  v.  McLaughlin,  20  Cal.  App.  204;  128 
Pac.  772;  Hadsall  v.  Case,  15  Cal.  App.  541; 
115  Pac.  330;  Kinard  v.  Jordan,  10  Cal. 
App.  219;  101  Pac.  696;  Litch  v.  Kerns,  8 
Cal.  App.  747;  97  Pac.  897. 

Regarding  amendments.  An  order  amend- 
ing an  order  dismissing  a  comjilaint  in  iii- 
terfdeader,  limiting  such  dismissal  to  the 
defendants  who  demurred  to  such  com- 
plaint, is  appealable.  Kaufman  v.  Superior 
Court,  108  Cal.  446;  41  Pac.  476;  and  see 
Livermore  v.  Campbell,  52  Cal.  75.  An 
order  denying  a  motion  to  amend  the 
minutes  of  the  trial  court,  after  judg- 
ment, is  not  subject  to  review  by  the  oriji- 
nar}'  process  of  appeal.  Griess  v.  State 
Investment  etc.  Co.,  93  Cal.  411;  28  Pac 
1041. 

Of  pleadings,  findings,  and  conclusions 
of  law.  On  appeal  from  an  order  denying 
a  motion  for  a  new  trial,  no  question  as 
to  the  sufficiency  of  the  pleadings  or  find- 
ings can  be  reviewed:  such  questions  are 
reviewable  only  on  an  appeal  from  the 
judgment.  Estate  of  Keating,  162  Cal.  406; 
122  Pac.  1079;  Shaw  v.  Shaw,  160  Cal.  733; 
117  Pac.  1048;  Arrovo  Ditch  etc.  Co.  v. 
Baldwin,  155  Cal.  280;  100  Pac.  14;  Quist 
V.  Sandman,  154  Cal.  748;  99  Pac.  204; 
Crescent  Feather  Co.  v.  United  Upholster- 
ers Union,  153  Cal.  434;  95  Pac.  871;  Great 
Western  Gold  Co.  v.  Chambers,  153  Cal. 
307;  95  Pac.  151;  Kaiser  v.  Dalto,  140  Cal. 
167;  73  Pac.  828;  Sebring  v.  Harris,  20 
Cal.  App.  56;  128  Pac.  7;  Clark  v.  Torchi- 
ana,  19  Cal.  App.  786;  127  Pac.  831;  Stock- 
ton Iron  Works  v.  Walters,  18  Cal.  App. 
373;  123  Pac.  240;  Schroeder  v.  Mauzv,  16 
Cal.  App.  443;  118  Pac.  459;  Spaeth  v. 
Ocean  Park  Realty  etc.  Co.,  16  Cal.  App, 
329;  116  Pac.  980;  Bennett  v.  Potter,  16 
Cal.  App.  183;  116  Pac.  681.  It  cannot  be 
urged,  upon  reviewing  an  order  denying  a 
new  trial,  that  any  of  the  findings  made 
upon  sufficient  evidence  are  outside  of  the 
issues  pleaded.  Schroeder  v.  Mauzy,  16 
Cal.  App.  443;  118  Pac.  459.  That  the 
court  has  erroneously  applied  the  Jaw  to 
the  facts,  or  has  drawn  the  wrong  conclu- 
sion of  law  from  the  facts  found,  may  be 
reviewed  only  upon  an  appeal  from  the 
judgment:  such  matters  cannot  be  consid- 
ered on  appeal  from  an  order  denying  a 
new  trial.  Estate  of  Doyle,  73  Cal  564; 
15  Pac.  125;  Swift  v.  Occidental  Mining 
etc.  Co.,  141  Cal.  161;  74  Pac.  700;  Quist 
V.  Sandman,  154  Cal.  748;  99  Pac.  204. 
Conclusions  of  law  are  superseded  by  the 
judgment,  and  cannot  be  reviewed  on  ap- 
peal from  an  order  denying  a  new  trial: 
they  are  reviewable  only  on  api)eal  from 
the  judgment  or  from  an  order  made  under 


§§  663,  fi63a,  ante.  Mentone  Irrigation  Co. 
V.  Redlands  Electric  Light  etc.  Co.,  155  (Jal. 
323;  22  L.  K.  A.  (N.  S.)  3S2;  17  Ann.  Cas. 
1222;  100  Pac.  1082;  Elizalde  v.  Murphv, 
11  Cal.  A  [.p.  32;  103  I'ac.  904. 

Of  order  striking  out.  An  order  striking 
out  amended  allidasits,  fileil  upon  a  motion 
for  a  new  trial,  may  be  reviewed  upon  an 
appeal  from  an  order  denying  the  motion. 
Melde  V.  Reynolds,  120  Cal.  234;  52  Pac. 
491.  Orders  striking  out  pleadings  can  be 
reviewed  only  on  apjieal  from  the  judg- 
ment: they  are  not  reviewable  on  a|ipeal 
from  an  order  denying  a  motion  for  a  new 
trial.  Stockton  Iron  Works  v.  Walters,  18 
Cal.  App.  373;  123  Pac.  240.  On  apjical 
taken  only  from  an  order  denying  a  new 
trial,  an  order  striking  out  an  amendment 
to  the  answer  cannot  be  reviewed:  it  can 
be  reviewed  only  upon  an  appeal  from  the 
judgment.  Reclamation  District  v.  TIershey, 
160  Cal.  692;  117  Pac.  904. 

Refusing  to  vacate  appealable  order,  .\n 
order  refusing  to  vacate  an  unapjiealable 
order  is  not  appealable.  Harjicr  v.  llil- 
dreth,  99  Cal.  265;  33  Pac.  1103;  and  see 
Estate  of  Keane,  56  Cal.  407.  Thus,  an 
order  refusing  to  set  aside  an  order  refus- 
ing to  transfer  a  cause  to  a  Federal  court 
is  not  appealable.  Tripp  v.  Santa  Rosa 
Street  R.  R.,  69  Cal.  631;  11  Pac.  219.  An 
order  dismissing  an  action  as  to  certain 
defendants,  an  order  denying  leave  to  file 
an  amended  and  supplemental  complaint, 
and  an  order  denying  a  motion  to  intro- 
duce certain  evidence,  are  not  ai)pe:ilal)le; 
therefore  orders  denying  motions  to  vacate 
these  orders  are  not  appealable.  Harper 
V.  Hildreth,  99  Cal.  265;  33  Pac.  1103.  An 
order  denying  a  motion  to  vacate  an  order 
that  is  itself  appealable  is  not  appealable 
(Harper  v.  Hildreth,  99  Cal.  265;  33  Pac. 
1103;  and  see  Holmes  v.  McCIearv,  63  Cal. 
497;  Tripp  v.  Santa  Rosa  Street 'R.  R.,  69 
Cal.  631;  11  Pac.  219;  Eureka  etc.  R.  R. 
Co.  V.  McGrath,  74  Cal.  49;  15  Pac.  360; 
Larkin  v.  Larkin,  76  Cal.  323;  18  Pac.  396; 
Goyhinech  v,  Goyhinech,  80  Cal.  409;  22 
Pac.  175;  Deering  v.  Richardson-Kimball 
Co.,  109  Cal.  73;  41  Pac.  801).  unless  the 
record  presents  matters  for  consideration 
that  could  not  be  jiresented  ui)on  the  ap- 
peal from  the  original  order  or  judgment. 
Bell  v.  Solomons,  162  Cal.  105;  121  Pac. 
377.  Thus,  an  order  denying  a  motion  to 
vacate  an  order  denying  the  petition  of 
an  executor  for  the  allowance  of  compen- 
sation for  extraordinary  services,  and  to 
restore  the  cause  to  the  calendar,  is  not 
appealable  (Estate  of  Walkerly,  94  Cal. 
352;  29  Pac.  719);  nor  is  an  order  refusing 
to  set  aside  an  order  granting  a  writ  of 
assistance  appealable  (Davis  v.  Donner.  S2 
Cal.  35;  22  Pac.  879);  nor  an  order  re- 
fusing to  revoke  an  order  appointing  a 
guardian  of  a  minor  (Guardianship  of  Get 
Voung,  90  Cal.  77;  27  Pac.  15S);  nor  an 
order  denying  a  motion  to  set  aside  an  aj)- 


S963 


APPEALS  TO  SUPREME  COURT. 


1126 


pealable  order  that  does  not  present  any 
features  not  before  the  court  when  it  exer- 
cised its  judgment  upon  the  original  matter 
(Deering  v.  Richardson-Kimball  Co.,  109 
Cal.  73;  41  Pac.  801);  nor  an  order  refus- 
ing to  vacate  a  prior  order  or  judgment, 
where  the  order  docs  not  present  any  facts 
other  than  those  presented  on  appeal  from 
the  judgment  itself  (Kent  v.  Williams,  146 
Cal.  3;  79  Pac.  527);  nor  an  order  denying 
an  application  to  vacate  an  order  substi- 
tuting a  person  as  plaintiff  (Grant  v.  Los 
Angeles  etc.  Ry.  Co.,  116  Cal.  71;  47  Pac. 
872);  nor  an  order  refusing  to  vacate  a 
prior  order  refusing  to  vacate  a  judgment, 
or  denying  a  motion  for  a  new  trial.  Doyle 
v.  Republic  Life  Ins.  Co.,  125  Cal.  15;  57 
Pac.  G67.  An  order  refusing  to  set  aside 
an  order  dismissing  an  action  as  to  certain 
defendants  is  not  appealable:  such  order 
of  dismissal  is  a  final  judgment  when  en- 
tered, and  is  itself  appealable.  Tripp  v. 
Santa  Rosa  Street  R.  R.,  69  Cal.  631;  11 
Pac.  219;  Gates  v.  Walker,  35  Cal.  2S9. 
An  appeal  lies  from  an  order  striking  out 
a  statement  on  motion  for  a  new  trial 
(Calderwood  v.  Peyser,  42  Cal.  110;  Clark 
V.  Crane,  57  Cal.  629);  hence,  that  being 
an  appealable  order,  no  appeal  lies  from 
an  order  refusing  to  vacate  an  order  strik- 
ing such  a  statement  from  the  files.  Sy- 
mons  V.  Bunnell,  101  Cal.  223;  35  Pac.  770. 

Overruling  exceptions.  An  order  over- 
ruling exceptions  to  a  referee's  report  is 
not  appealable.  Peck  v.  Courtis,  31  Cal. 
207. 

Of  refusal  to  settle  statement.  The  re- 
fusal of  the  court  to  settle  the  statement 
on  motion  for  a  new  trial  cannot  be  re- 
viewed upon  an  appeal  from  the  judgment, 
and  from  an  order  denying  a  new  trial: 
the  remedy  therefor  is  by  mandamus.  Ma- 
chado  V.  Kinney.  135  Cal.  354;  67  Pac.  331; 
Hartmann  v.  Smith,  140  Cal.  461;  74  Pac.  7. 

Of  misconduct  of  district  attorney.  The 
misconduct  of  a  district  attorney  cannot 
be  regarded  on  a  motion  for  a  new  trial: 
it  can  be  reviewed  only  on  an  appeal  from 
the  judgment.  People  v.  Pang  Sui  Liu,  15 
Cal.  App.  260;  114  Pac.  582. 

Affirmance  of  order.  An  appeal  from  an 
order  denying  an  improper  motion  for  a 
new  trial  will  not  be  dismissed:  the  proper 
course  is  to  affirm  the  order.  Quist  v.  Sand- 
man, 154  Cal.  748;  99  Pac.  204.  Though 
an  order  granting  a  new  trial  does  not  spe- 
cify the  particular  ground  upon  which  it 
was  based,  yet  it  must  be  affirmed  upon 
ajjpeal,  if  there  is  any  ground  upon  which 
it  can  be  sustained.  Witter  v.  Redwine, 
14  Cal.  App.  393;  112  Pac.  311;  Petaluma 
v.  White,  152  Cal.  192;  92  Pac.  177;  Web- 
ster V,  Suiter,  15  Cal.  App.  390;  114  Pac. 
1007;  Pollitz  v.  Wickersham,  150  Cal.  238; 
88  Pac.  911. 

Reversal  of  order.  The  appellate  court 
will  not  disturb  the  action  of  the  trial 
court  in  denying  a  motion  for  a  new  trial, 


if,  upon  any  hypothesis,  it  can  be  sus- 
tained. Union  Lumber  Co.  v.  Webster,  15 
Cal.  App.  165;  113  Pac.  891.  Where  a  new 
trial  was  properly  denied  as  to  some  issues, 
and  erroneously  as  to  others,  the  order 
should  be  reversed  only  so  far  as  may  be 
necessary  to  correct  error  in  the  order, 
where  the  issues  are  entirelv  separate. 
Robinson  v.  Muir,  151  Cal.  liS;  90  Pac. 
521.  Upon  a  proper  appeal  from  an  order 
denying  a  new  trial,  where  the  grounds 
of  the  motion  are  insufficiency  of  the  evi- 
dence to  justify  the  decision,  and  that  the 
decision  is  against  law,  the  order  will  be 
reversed,  where  the  decision  is  against 
the  effect  of  the  evidence.  McGorray  v. 
Stockton  Sav.  &  L.  Soc,  131  Cal.  321;  63 
Pac.  479.  A  failure  to  find  upon  the  de- 
fendant's plea  of  estoppel,  where  there  is 
substantial  evidence  to  support  it,  is  re- 
versible error,  justifying  a  new  trial.  Ban- 
ning V.  Kreiter,  153  Cal.  33;  94  Pac.  246. 

Order  regarding  injunction.  An  order 
granting  an  injunction  is  appealable  (Sul- 
livan V.  Triunfo  Gold  etc.  Mining  Co.,  33 
Cal.  385;  Golden  Gate  etc.  Mining  Co.  v. 
Superior  Court,  65  Cal.  187;  3  Pac.  628); 
and  such  order,  made  without  due  notice 
of  the  application  therefor,  cannot  be  an- 
nulled in  a  proceeding  for  a  writ  of  review 
(Golden  Gate  etc.  Mining  Co.  v.  Superior 
Court,  65  Cal.  187;  3  Pac.  628);  and  an 
order  refusing  to  dissolve  an  injunction  is 
also  appealable  (Neumann  v.  Moretti,  146 
Cal.  31;  79  Pac.  512;  Tehama  County  v. 
Sisson,  152  Cal.  179;  92  Pac.  64);  but  the 
rule  was  otherwise  under  the  Practice  Act. 
AUender  v.  Fritts,  24  Cal.  447.  An  order 
striking  out  the  mandatory  portion  of  a 
preliminary  injunction  is  appealable  (Wolf 
V.  Board  of  Supervisors,  143  Cal.  333;  76 
Pac.  1108);  but  an  order  refusing  to  re- 
strain a  sheriff  from  executing  a  writ  of 
assistance  is  not  appealable  (Pignaz  v. 
Burnett,  119  Cal.  157;  51  Pac.  48);  nor 
is  a  mere  declaratory  order,  signed  by  a 
judge,  not  purporting  to  vacate  or  dissolve 
an  injunction,  but  merely  declaring  that 
the  injunction  is  no  longer  in  force,  wliich 
order  was  not  filed  with  the  clerk,  nor 
intended  to  be  entered  in  the  minutes  of 
the  court  (Devlin  v.  Rydberg,  132  Cal.  324; 
64  Pac.  396);  nor  js  the  refusal  of  an 
application  for  an  order  to  show  cause  why 
an  injunction  should  not  issue:  it  is  not 
an  order  refusing  to  grant  an  injunction. 
Grant  v.  .Tohuston,  45  Cal.  243. 

Regarding  receivers.  An  appeal  lies  from 
an  order  appointing  a  receiver  (First  Nat. 
Bank  v.  Superior  Court,  12  Cal.  App.  335; 
107  Pac.  322);  though  it  was  otherwise 
under  the  former  statute.  Emeric  v.  Alva- 
rado,  64  Cal.  529;  2  Pac.  418.  While  a 
direct  appeal  may  be  taken  from  an  order 
appointing  a  receiver,  yet  the  statute  does 
not  allow  an  appeal  from  ah  order  re- 
fusing to  vacate  the  appointment  of  ft 
receiver.    Title  Insurance  etc.  Co.  v.  Call- 


1127 


MANDAMUS — ATTACHMENT — ORDERS — BILLS. 


§9G3 


fornia  Development  Co.,  159  Cal.  484;  114 
Pac.  838.  An  order  made  poiidin<j  suit, 
authorizing  a  receiver,  appointed  to  take 
charge  of  and  work  the  property  involved 
in  such  suit,  is  not  appealable  (Free  Gold 
Mining  Co.  v.  Spiers,  135  Cal.  130;  67  Pac. 
61),  nor  is  an  order,  made  before  final 
judgment,  approving  the  account  of  a  re- 
ceiver. Rochat  v.  Gee,  91  Cal.  355;  27  Pac. 
670. 

Mandamus,  where  order  appealable.  An 
order  dismissing  a  petition  to  restore  to 
legal  capacity  one  adjudged  insane  by  the 
superior  court  of  another  county,  is  appeal- 
able; and  mandamus  does  not  lie  to  com- 
pel the  court  to  consider  such  application. 
Aldrich  v.  Superior  Court,  135  Cal.  12;  66 
Pac.  846. 

Regarding  attachment.  Under  the  Prac- 
tice Act,  an  appeal  did  not  lie  from  an 
order  refusing  to  dissolve  an  attachment. 
(Allender  v.  Fritts,  24  Cal.  447):  but  an 
appeal  now  lies  from  an  order  dissolving 
an  attachment  (Kennedy  v.  Merickel,  8 
Cal.  App.  378;  97  Pac.  81),  and  from  an 
order  refusing  to  dissolve  an  attachment; 
hence,  irregularities  in  an  attachment, 
merely  as  to  its  inception  or  form,  must 
be  considered  on  direct  appeal  from  the 
order  refusing  to  dissolve  the  attachment, 
and  not  on  appeal  from  the  judgment. 
Mudge  V.  Steinhart,  78  Cal.  34;  12  Am. 
St.  Rep.  17;  20  Pac.  147.  The  term  "an 
attachment,"  as  used  in  this  section,  is 
broad  enough  to  include  seizure  and  cus- 
tody under  the  writ,  as  well  as  the  writ 
itself;  therefore  an  order  discharjjing  a 
writ  of  attachment  in  respect  to  particular 
property  claimed  not  to  be  liable  to  seizure 
under  the  writ  is,  in  effect,  an  order  dis- 
solving the  attachment  as  to  such  prop- 
erty, and  is  appealable.  Risdon  Iron  etc. 
Works  V.  Citizens'  Traction  Co.,  122  Cal. 
94;  68  Am.  St.  Rep.  25;  54  Pac.  529. 

Regarding  place  of  trial.  An  order  chan- 
ging the  place  of  trial  is  appealable  (Chase 
V.  Superior  Court,  154  Cal.  789;  99  Pac. 
355);  as  is  also  an  order  denying  a  motion 
for  a  change  of  the  place  of  trial.  Bohn 
V.  Bohn,  164  Cal.  532;  129  Pac.  981. 

Refusing  transfer  of  cause.  An  order 
refusing  to  transfer  a  cause  to  a  Federal 
court  is  not  appealable.  Hopper  v.  Kalk- 
man,  17  Cal.  517. 

On  motion  to  strike  out.  An  order  strik- 
ing a  statement  from  the  files  is  appeal- 
able as  a  special  order  made  after  judg- 
ment (Symons  v.  Bunnell,  101  Cal.  223;  35 
Pac.  770);  as  is  also  an  order  striking 
from  the  files  an  undertaking  to  stay  exe- 
cution, and  directing  the  sheriff  to  pay  the 
moneys  collected  under  the  garnishment 
in  satisfaction  of  the  judgment  (Southern 
California  Ry.  Co.  v.  Superior  Court,  127 
Cal.  417;  59  Pac.  789);  and  a  special  order 
reducing  the  amount  of  the  judgment  by 
striking  out  the  costs  therefrom  (Klledge 
V.   Superior   Court,   131   Cal.   279;    63   Pac. 


360);  and  an  order  striking  out  compe- 
tent affidavits  use<l  upon  a  motion  for  a 
new  trial  ((iay  v.  Torrance,  145  Cal.  144; 
78  P;ic.  540);  but  an  onU-r  striking  from 
the  files  amended  affidavits  filed  in  siip|>ort 
of  a  motion  for  a  new  trial,  after  it  had 
been  made,  and  while  it  was  pending,  is 
not  ajipealable  (Melde  v.  Reynolds,  120 
Cal.  234;  52  Pac.  491);  nor  is  an  order 
made  on  a  motion  to  strike  out  portions 
of  a  pleading  (Wooil  v.  Missouri  Pacific 
Ry.  Co.,  152  Cal.  344;  92  I'.ic.  868);  nor 
an  order  directing  the  striking  out  of  the 
comnlaint,  or  a  part  thereof  (Clifford  v. 
Allman,  84  Cal.  528;  24  Pac.  292;  Swain 
V.  Burnette,  76  Cal.  299;  18  Pac.  394);  nor 
are  rulings,  made  during  the  trial,  refus- 
ing to  strike  out  testimonv.  Leavens  v. 
Piiikham,  164  Cal.  212;   12S  I'ac.  399. 

Order  modifying  judgment.  An  order  of 
the  trial  court,  mo<litying  a  judgment  in 
accordance  with  the  directions  of  the  su- 
preme court,  made  on  a  prior  appeal,  and 
also  the  judgment  as  modified,  is  appeal- 
able (Randall  v.  Duff,  104  Cal.  126;  43 
Am.  St.  Rep.  79;  37  Pac.  803);  as  is  also 
an  order  denying  a  motion  to  correct  a 
judgment,  or  the  file-mark  thereon,  where 
an  appeal  upon  the  judgment  roll  would 
not  present  all  the  facts  upon  which  the 
motion  is  based.  Tuffree  v.  Stearns  Ranchos 
Co.,  6  Cal.  Unrep.  134;  54  Pac.  826.  An 
order  denying  a  motion  for  a  different 
judgment  upon  the  findings  is  a  special 
order  made  after  final  judgment,  and  ap- 
pealable (Rahmel  v.  Lehndorff,  142  Cal. 
681;  100  Am.  St.  Rep.  154;  65  L.  R.  A. 
88;  76  Pac.  659);  but  otherwise  as  to  an 
order  adding  to  the  judgment  a  provision 
requiring  the  plaintiff  to  pay  the  guardian 
ad  litem  of  a  minor  defendant  the  sum 
of  two  hundred  dollars  for  his  services  as 
such:  such  portion  of  the  judgment,  be- 
ing merely  for  costs  or  expenses  taxable 
against  the  defendant,  and  not  amounting 
to  three  hundred  dollars,  is  insufficient  to 
confer  jurisdiction  on  the  supreme  court. 
Aronson  v.  Levison,  148  Cal.  364;  83  Pac. 
154. 

Eesarding  biU  of  exceptions  or  state- 
ment. An  order  refusing  to  settle  a  bill 
of  exceptions,  and  refusing  to  relieve  the 
party  presenting  it  from  an  objection  that 
it  was  not  served  in  due  season,  on  the 
ground  of  mistake,  inadvertence,  surprise, 
and  excusable  neglect,  is  appealable.  Stone- 
sifer  v.  Kilburn,  94  Cal.  33;  29  Pac.  332. 
An  order  denying  a  motion  to  settle  a 
statement  on  motion  for  a  new  trial  is  a 
special  order  ma<le  after  judgment,  and 
appealable  (Clark  v.  Crane,  57  Cal.  629); 
but  an  order  relieving  a  party  moving  for 
a  new  trial  from  his  failure  to  present 
his  bill  of  exceptions  for  settlement  within 
the  time  required  by  law.  upon  the  ground 
that  such  failure  was  excusable,  and  owing 
to  inadvertence,  is  not  ap])ealable,  as  it  is 
not  a  special  order  made  after  final  judg- 


§963 


APPEALS  TO  SUPREME  COURT. 


1128 


ment,  within  the  meaning  of  the  second 
subdivision  of  this  section,  although  it  was 
made  subsequently  to  the  entry  of  judg- 
ment (Kaltschmidt  v.  Weber,  136  Cal.  675; 
69  Pac.  497);  nor  is  the  certificate  of  a 
judge,  settling  an  engrossed  statement  on 
motion  for  a  new  trial,  an  appealable  order 
(Henry  v.  Merguire,  106  Cal.  142;  39  Pac. 
599;  but  see  Stonesifer  v.  Kilburn,  94  Cal. 
33;  29  Pac.  332);  nor  is  an  order  permit- 
ting the  amendment  of  a  statement  on 
motion  for  a  new  trial  in  a  contest  over 
the  probate  of  a  will,  appealable.  Estate 
of  Smith,  98  Cal.  636;  33  Pac.  744.  An 
order  striking  a  statement  on  motion  for 
a  new  trial  from  the  files  is  a  special  order 
made  after  final  judgment,  and  appealable. 
Calderwood  v.  Peyser,  42  Cal.  110;  Kim- 
ball V.  Semple,  31  Cal.  657;  Morris  v.  De 
Celis,  41  Cal.  331;  Dooly  v.  Norton,  41 
Cal.  439;  but  see  Quivey  v.  Gambert,  32 
Cal.  304;  Leffingwell  v.  Griffing,  29  Cal. 
192;  Ketchum  v.  Crippen,  31  Cal.  365.  An 
order  refusing  to  strike  out  a  statement 
on  motion  for  a  new  trial  is  not  a  special 
order  made  after  judgment,  but  an  inter- 
locutory order  in  the  proceedings  to  obtain 
a  new  trial,  and  is  in  a  different  line  of 
proceeding,  in  which  the  order  granting 
or  refusing  a  new  trial  is  the  final  and 
appealable  order;  therefore  it  is  not  ap- 
pealable.   Ketchum  v.  Crippen,  31  Cal.  365. 

Interlocutory  judgments,  orders,  and  de- 
crees. An  interlocutory  decree,  not  in- 
tended to  be  an  ultimate  adjudication  of 
the  merits,  is  not  a  final  decree.  Doudell 
V.  Shoo,  159  Cal.  448;  114  Pac.  579.  No 
appeal  lies  from  an  interlocutory  order, 
unless  it  is  designated  by  statute  as  one 
of  those  from  which  an  appeal  may  be 
taken.  Title  Insurance  etc.  Co.  v.  Califor- 
nia Development  Co.,  159  Cal.  484;  114 
Pac.  838.  An  interlocutory  decree,  in  cases 
other  than  those  prescribed  by  statute,  is 
not  appealable,  but  will  be  reviewed  on 
appeal  from  the  final  decree.  Watson  v. 
Sutro,  77  Cal.  609;  20  Pac.  88.  In  a  pro- 
ceeding in  partition,  an  interlocutory  de- 
cree is  indispensable  definitely  to  ascertain 
and  determine  the  rights  of  the  parties. 
Lorenz  v.  Jacobs.  53  Cal.  24.  In  an  action 
to  have  a  trust  declared  in  real  property, 
alleged  to  have  been  fraudulently  con- 
veyed, an  interlocutory  judgment  is  not 
appealable  (Duff  v.  Duff,  71  Cal.  513;  12 
Pac.  570);  nor  in  an  action  to  compel  the 
convevanee  of  real  property  (Kofoed  v. 
Gordon,  122  Cal.  314;  54  Pac.  1115);  nor 
does  an  appeal  lie  from  an  interlocutory 
decree  for  an  accounting,  in  an  action  to 
enforce  a  constructive  trust  (Grey  v.  Bren- 
nan,  147  Cal.  355;  81  Pac.  1014);  nor,  in 
such  an  action,  to  subject  a  trust  fund  to 
the  pavment  of  a  claim.  Grey  v.  Brennan, 
147  Cal.  355;  81  Pac.  1014. 

In  actions  for  divorce.  A  special  order, 
made  after  final  judgment,  in  favor  of  the 
plaintiff  in   an   action   for   divorce,   requir- 


ing the  defendant  to  pay  counsel  fees  and 
costs,  to  enable  the  plaintiff  to  contest  the 
defendant's  motion  for  a  new  trial,  is  ap- 
pealable, the  supreme  court  having  appel- 
late jurisdiction  over  all  questions  arising 
in  an  action  for  divorce,  on  the  ground 
that  it  is  a  case  in  equity,  regardless  of 
the  amount  involved  (Harron  v.  Harron, 
123  Cal.  508;  56  Pac.  334);  and  an  order 
directing  a  receiver  of  the  property  of  the 
husband  to  sell  it  for  the  purpose  of  satis- 
fying a  judgment  for  alimony,  is  appeal- 
able; regardless  of  whether  there  is  an 
excess  of  the  jurisdiction  of  the  court  in 
making  it,  the  remedy  by  appeal  is  con- 
clusive of  the  right  to  review  it  upon  cer- 
tiorari (White  V.  Superior  Court,  110  Cal. 
54;  42  Pac.  471);  and  an  order,  pendente 
lite,  directing  the  payment  of  alimony,  is 
appealable.  Sharon  v.  Sharon,  67  Cal.  185; 
7  Pac.  456. 

In  partition.  This  section  makes  pro- 
vision for  an  appeal  from  an  interlocutory 
judtjment  in  partition  proceedings.  Dore 
V.  Klumpke,  140  Cal.  356;  73  Pac.  1064. 
An  appeal  from  an  interlocutory  judgment 
in  partition  proceedings,  under  tiie  second 
subdivision  of  this  section,  is  only  "from 
such  interlocutory  judgment  as  determines 
the  rights  and  interests  of  the  respective 
parties,  and  directs  partition  to  be  made," 
and  not  from  an  interlocutory  decree  di- 
recting the  property  to  be  sold  and  the 
proceeds  distributed,  which  does  not  be- 
come final  until  the  sale  is  confirmed,  when 
an  appeal  may  be  had.  Hammond  v.  Cail- 
leaud.  111  Cal.  206;  52  Am.  St.  Rep.  167; 
43  Pac.  607.  An  interlocutory  decree  in 
partition  proceedings,  finally  determining 
the  rights  of  the  several  parties,  and  di- 
recting a  sale  of  the  property,  is  appeal- 
able (Holt  v.  Holt,  131  Cal.  610;  63  Pac. 
912;  Barry  v.  Barry,  56  Cal.  10);  and  to 
be  appealable,  it  must  definitely  ascertain 
the  rights  and  interests  of  the  parties  in 
the  subject-matter;  therefore  conclusions 
of  law,  which  form  the  basis  for  such  a 
decree,  cannot  be  appealed  from.  Lorenz 
V.  Jacobs,  53  Cal.  24;  Emeric  v.  Alvarado, 
64  Cal.  529;  2  Pac.  418.  An  order  con- 
firming a  sale  in  partition  is  conclusive 
upon  the  purchaser,  if  he  fails  to  appeal. 
Hammond  v.  Cailleaud,  111  Cal.  206;  52 
Am.  St.  Rep.  167;  43  Pac.  607.  The  in- 
terlocutory decree  in  partition,  directing 
a  sale,  is  to  be  regarded  as  a  final  judg- 
ment with  respect  to  subsequent  orders  in 
aid  of  its  execution;  and  a  tenant  in  com- 
mon in  possession  has  the  right  to  oppose 
the  confirmation  of  the  sale,  and  to  review, 
on  appeal,  an  order  confirming  such  sale. 
Gordon  v.  Graham,  153  Cal.  297;  95  Pac. 
145.  An  order  vacating  an  order  of  ref- 
erence and  the  proceedings  subsequent 
thereto,  in  partition  proceedings,  was  not 
appealable,  under  the  former  statute. 
Hastings  v.  Cunningham,  35  Cal.  549. 


1129 


CONDEMXATIOX ORDERS  Am'.R  JUDIIMENT. 


§9G3 


In  condemnation  proceedings.  A  final 
order  of  condciniiatioii,  iniulo  after  tlio 
judgment  awarding  damages  has  been 
affirmed,  adjudging  that  the  damages  and 
costs  awarded  to  the  defendants  have  been 
paid,  or  have  been  deposited  in  eonrt,  is 
a  special  order  made  after  final  judgment, 
and  appealable.  Los  Angeles  v.  Ponierov, 
132  Cal.  340;  64  Pac.  477;  Alameda  v. 
Cohen,  133  Cal.  .l;  6.")  Pae.  127;  Sacramento 
etc.  R.  K.  Co.  V.  Harlan,  24  Cal.  334. 

In  actions  to  redeem.  Tt  is  not  impera- 
tive upon  the  court,  in  all  actions  to  re- 
deem, to  make  an  interlocutory  order,  so 
as  to  give  the  opportunity  to  appeal:  the 
court,  in  its  discretion,  may  make  such 
an  order,  but  it  is  not  bound  to  do  so. 
Smith  V.  Goethe,  147  Cal.  72.5;  82  Pac.  3S4. 

Special  orders  m.ade  after  final  judgment. 
A  special  order,  made  after  final  judgment, 
is  appealable  (Bond  v.  United  Railroads, 
159  Cal.  270;  Ann.  Cas.  1912C,  50;  113  Pac. 
36(5;  Rogers  v.  Superior  Court,  158  Cal. 
467;  111  Pae.  357;  Aronson  v.  Levison,  148 
Cal.  364;  83  Pac.  154;  Los  Angeles  v.  Pome- 
roy,  132  Cal.  340;  64  Pac.  477;  Holt  v. 
James,  10  Cal.  App.  360;  101  Pac.  1065; 
Magee  v.  Superior  Court,  10  Cal.  App.  154; 
101  Pac.  532),  without  reference  to  any 
amount  in  value  that  may  be  involved  in 
the  order.  Southern  California  Rv.  Co.  v. 
Superior  Court,  127  Cal.  417;  59  Pac.  789. 
An  appeal  from  an  order  that  an  original 
judgment  be  carried  into  execution  is  not 
an  appeal  from  a  judgment,  but  from  an 
order  made  after  final  judgment.  Weldon 
v.  Rogers,  154  Cal.  632;  98  Pac.  1070.  The 
provisions  of  the  second  subdivision  of  this 
section,  relative  to  appeals  from  orders 
made  after  final  judgment,  are  not  appli- 
cable to  probate  proceedings.  Estate  of 
Wittmeier,  118  Cal.  255;  50  Pac.  393. 

Regarding  sales.  An  order,  made  after 
final  judgment,  authorizing  the  sale  of  per- 
ishable property,  notwithstanding  a  stay 
of  proceedings  by  virtue  of  an  appeal,  is 
appealable.  Rogers  v.  Superior  Court,  158 
Cal.  467;  111  Pac.  357.  An  order,  made 
after  judgment,  restraining  the  sale  of 
property,  pending  an  appeal,  is  appealable 
either  as  an  order  made  after  final  judg- 
ment, or  as  an  order  granting  an  injunc- 
tion. Stoddard  v.  Superior  Court,  lOS  Cal. 
303;  41  Pac.  278.  An  order  refusing  Lo 
confirm  part  of  a  sale  in  partition  proceed- 
ings, in  so  far  as  it  relates  to  a  particular 
purchaser,  is  appeal.ible  as  an  order  made 
after  final  judgment;  and  such  purchaser 
is  a  party  aggrieved,  who  is  entitled  to 
appeal  from  such  order.  Dunn  v.  Dunn, 
137  Cal.  51;  69  Pac.  847;  and  see  Hammond 
V.  Cailleaud,  111  Cal.  206;  52  Am.  St.  Rep. 
167;  43  Pac.  607. 

Regarding  deposits  in  court.  An  order 
directing  that  money,  paid  into  court  in 
satisfaction  of  a  judgment,  and  claimed 
by  a  third  party,  be  retained  by  the  clerk 
until  the  determination  of  proceedings  in- 


stituted to  ascertain  the  right  of  the  claim- 
ant to  the  money,  is  an  order  made  after 
final  juilgment,  ami  tlierefore  appealable: 
it  is  not  the  subject  of  review  liy  certio- 
rari. Slavoni<'  etc.  .\ss'n  v.  .Superior  Court, 
65  Cal.  50(1;    \  \':u-.  500. 

Appeal  from  order  made  after  final  judg- 
ment.   See  also  note  ante,  §  939. 

Order  made  on  motion  to  vacate  judg- 
ment. No  direct  appeal  lies  from  an  order 
refusing  a  motion  to  dismis.s  an  action, 
but,  for  error  aflfecting  the  jurisdiction, 
for  want  of  facts  to  support  sui-h  order, 
a  motion  may  he  made  to  vacate  the  judg- 
ment rendered  after  tri:il,  and  the  order 
made  upon  such  motion  is  appeahible,  and 
reviewable  upon  a  bill  of  excej'tions,  as 
an  order  made  after  judgment.  Hunting- 
ton Park  Improvement  Co.  v.  Superior 
Court,  17  Cal.  App.  692;  121  Pae.  701. 

Modifying  or  vacating  judgments  or 
orders.  An  order  setting  aside  a  judg- 
ment, entered  by  the  clerk,  even  if  only 
a  judgment  in  form,  and  invalid,  is  appeal- 
able (Livermore  v.  Campbell,  52  Cal.  75); 
as  is  also  an  order  refusing  to  set  aside 
and  vacate  a  judgment:  it  is  a  special  order 
made  after  final  judgment.  McCourtnev  v. 
Fortune,  42  Cal.  387;  Hibernia  Sav.  &  L. 
Soc.  V.  Cochran,  6  Cal.  Unrep.  821;  66  Pac. 
732.  An  order  refusing  to  set  aside  a 
judgment,  where  an  appeal  upon  the  judg- 
ment roll  would  not  present  all  the  facts 
upon  which  the  motion  is  based,  is  appeal- 
able (De  la  Montanva  v.  De  la  Montanva, 
112  Cal.  101;  53  Am.  St.  Rep.  165;  "32 
L.  R.  A.  82;  44  Pac.  345);  as  is  also  an 
order  denying  a  motion  made  under  §§  663, 
663a,  ante,  to  vacate  and  set  aside  the 
judgment,  as  not  supported  by  the  findings 
(Taylor  v.  Darling,  19  Cal.  App.  232;  125 
Pac.  249);  but  an  order  refusing  to  set 
aside  a  judgment,  on  the  ground  that  find- 
ings had  not  been  waived,  and  there  were 
no  findings  to  support  it,  is  not  appeal- 
able (Gregory  v.  Gregory,  3  Cal.  Unrep. 
836;  32  Pac.  531);  nor  is  an  order  refus- 
ing to  set  aside  a  judgment,  on  the  ground 
that  no  findings  or  conclusions  of  law  were 
filed,  and  that  they  were  not  waived,  where 
such  ground  existed  before  the  judgment 
was  entered,  and  would  have  been  review- 
able upon  an  appeal  from  the  ju<igment 
(Mantel  v.  Mantel,  135  Cal.  315;  07  Pac. 
75S) ;  nor  is  an  order  refusing  to  set  aside 
a  judgment,  and  to  enter  a  different  judg- 
ment on  the  findings,  appealable.  Birch  v. 
Cooper,  136  Cal.  636;  69  Pac.  420. 

Regarding  writs.  Any  error  committed 
in  issuing  a  writ  of  possession,  or  in  a  sub- 
sequent order  refusing  to  set  it  aside,  is 
reviewable  upon  appeal,  and  cannot  be  cor- 
rected by  mandamus.  Gutierrez  v.  .Superior 
Court,  106  Cal.  171;  39  Pac.  530.  An  or.ler 
refusing  to  quash  an  execution  is  a  special 
order  made  after  judgment,  and  appealable 
(Gil man  v.  Contra  Costa  County,  8  Cal.  52; 
6S  Am.  Dec.  290);  as  is  also  an  order  re- 


§963 


APPEA-LS  TO  SUPREME  COURT. 


1130 


fusing  a  motion  of  persons  in  possession  of 
lands  sold  under  foreclosure  of  a  mortgage, 
who  were  not  notified  of  an  ex  parte  order 
granting  a  writ  of  assistance  to  a  pur- 
chaser at  the  sale,  to  restrain  the  sheriff 
from  executing  the  writ;  and  the  fact  that 
the  motion  was,  in  effect,  a  motion  to 
vacate  the  order  granting  the  writ  and  to 
recall  the  writ,  does  not  justify  the  dis- 
missal of  the  appeal  from  the  order  refus- 
ing the  motion.  Pignaz  v.  Burnett,  119  Cal. 
157;  51  Pac.  48.  An  order  granting  a  writ 
of  assistance  is  appealable.  Davis  v.  Don- 
ner,  82  Cal.  35;  22  Pac.  S79;  Gordon  v. 
Graham,  153  Cal.  297;  95  Pac.  145.  A  writ 
of  prohibition  to  prevent  an  order  direct- 
ing payment  from  the  estate  of  a  decedent, 
on  the  ground  that  the  statute  under  which 
the  court  is  proceeding  has  been  repealed, 
will  not  issue,  since  such  order,  if  made, 
would  be  reviewable  by  appeal  under  the 
third  subdivision  of  this  section.  Cross  v. 
Superior  Court,  2  Cal.  App.  342;  83  Pac. 
815.  A  judgment  of  the  superior  court 
granting  or  denying  a  writ  of  mandate  is 
appealable  (Knowles  v.  Thompson,  133  Cal. 
245;  65  Pac.  468;  Palache  v.  Hunt,  64  Cal. 
473;  2  Pac.  245;  Heinlen  v.  Phillips,  88  Cal. 
557;  26  Pac.  366);  as  is  also  an  order  deny- 
ing a  writ  of  review.  Beaumont  v.  Samson, 
4  Cal.  App.  701;  89  Pac.  137. 

In  probate.  An  order  in  probate  pro- 
ceedings, refusing  compensation  for  ex- 
traordinary services  by  an  executor,  is  not 
a  special  order  made  after  final  judgment 
and  is  not  appealable  (Estate  of  Walkerly, 
94  Cal.  352;  29  Pac.  719);  nor  is  an  order 
of  the  probate  court,  refusing  to  quash  an 
execution,  appealable.  Blum  v.  Brownstono. 
50  Cal.  293.  Neither  an  original  order 
directing  the  place  of  interment  of  the 
body  of  a  deceased  person,  nor  an  order  re- 
fusing to  vacate  such  order,  is  appealable. 
Estate  of  Seymour,  15  Cal.  App.  287;  114 
Pac.  1023.  An  order  requiring  a  distributee 
to  restore  property  received  under  a  final 
decree  of  distribution  is  not  appealable  as 
a  special  order  made  after  final  judgment. 
Iversen  v.  Superior  Court,  115  Cal.  27;  46 
Pac.  817. 

Jurisdiction  of  probate  appeals.  Ap- 
peals lie  only  in  such  probate  matters 
as  may  be  provided  by  statute  (Estate  of 
Hathaway,  111  Cal.  270;  43  Pac.  754;  Es- 
tate of  Winslow,  128  Cal.  311;  60  Pac. 
931);  and  the  only  appealable  orders  in 
probate  matters  are  those  designated  in 
this  section.  Estate  of  Edelman,  148  Cal. 
233;  113  Am.  St.  Eep.  231;  82  Pac.  962; 
Estate  of  Walkerly,  94  Cal.  352;  29  Pac. 
719;  Estate  of  Bouyssou,  1  Cal.  App.  657; 
82  Pac.  1066.  The  third  subdivision  of 
this  section  is  the  only  authority  for  an 
appeal  in  any  probate  matter  (Estate  of 
•Seymour,  15  Cal.  App.  287;  114  Pac.  1023): 
the  second  subdivision,  relative  to  appeals 
from  orders  made  after  final  judgment,  is 
not  applicable  to  probate  proceedings.  Es- 
tate of  Wittmeier,  118  Cal.  255;   50  Pac. 


393;  Estate  of  Seymour,  15  Cal.  App.  287; 
114  Pac.  1023.  Wherever  an  order  or  de- 
cree involves  a  construction  of  the  proper 
exercise  of  the  duties  of  a  trustee  or  ad- 
ministrator, or  presents  a  question  as  to  his 
right  or  power  to  comply  therewith,  or 
wherever  obedience  thereto  might  subject 
him  to  liability,  he  mav  appeal.  Estate  of 
Welch,  106  Cal.  427;  39  Pac.  805.  An  order 
directing  an  administratrix  to  allow  her 
name  to  be  used  by  a  creditor  of  the  es- 
tate, in  a  suit  to  set  aside  a  conveyance  of 
the  decedent  as  having  been  made  to  de- 
fraud his  creditors,  is  not  appealable  (Es- 
tate of  Ohm,  82  Cal.  160;  22  Pac.  927);  nor 
is  an  order  commanding  the  dismissal  of  an 
action  brought  against  the  executor  of  an 
estate,  and  directing  the  discharge  of  the 
administrator,  upon  the  settlement  of  an 
account  not  yet  filed.  Estate  of  Bullock,  75 
Cal.  419;  17  Pac.  540.  A  statement  on  ap- 
peal from  a  probate  court  must  specify  the 
particular  errors  or  grounds  upon  which 
the  appellant  intends  to  rely.  Estate  of 
Boyd,  25  Cal.  511. 

Order  appointing  administrator.  An  ap- 
peal may  be  taken  from  an  order  appoint- 
ing an  administrator.  Estate  of  Davis,  151 
Cal.  318;  121  Am.  St.  Eep.  105;  86  Pac. 
1S3;  90  Pac.  711.  ■  A  public  administrator, 
who  has  applied  for  appointment  as  admin- 
istrator, has  a  right  to  appeal  from  an 
adverse  order  apisointing  another  adminis- 
trator, and  non-resident  heirs  may  join  in 
such  appeal.  Estate  of  Graves,  8  Cal.  App. 
254;  96  Pac.  972.  The  provision  of  the 
third  subdivision  of  this  section,  that  a 
judgment  or  order  granting,  refusing,  or 
revoking  letters  testamentary  or  of  admin- 
istration, was  directed  toward  orders  ap- 
pointing general  administrators,  and  not 
toward  orders  appointing  special  adminis- 
trators; therefore  an  order  appointing  a 
special  administrator  is  not  appealable. 
Estate  of  Carpenter,  73  Cal.  202;  14  Pac. 
677;  but  see  contra.  Estate  of  Crozier,  65 
Cal.  332;  4  Pac.  109. 

Regarding  appointment  of  guardian.  An 
order  appointing  a  guardian  of  a  minor  is 
appealable  (Guardianship  of  Get  Young,  90 
Cal.  77;  27  Pac.  158;  Ex  parte  Miller,  109 
Cal.  643;  42  Pac.  428);  as  is  also  an  order 
appointing  a  guardian  of  a  person  alleged 
to  be  incompetent,  to  manage  his  prop- 
erty, and  the  alleged  incompetent  is  an 
"aggrieved  party,"  who  has  a  right  of  ap- 
peal from  such  order  (In  re  Moss,  120  Cal. 
695;  53  Pac.  357);  but  an  order  setting 
aside  an  order  appointing  a  guardian  ad 
litem  for  an  incompetent  person,  is  not  ap- 
pealable. Estate  of  Hathaway,  111  Cal. 
270;  43  Pac.  754. 

Special  administrator  may  appeal.  A 
special  administrator,  with  authority  to 
preserve  and  protect  the  estate,  has  author- 
ity to  appeal  to  the  supreme  court  in  a 
suit  in  equity.  Davey  v.  Mulroy,  7  Cal. 
App.  1;  93  Pac.  297. 


1131 


ORDERS  IN  PROBATE — Rr.VIEW. 


§963 


Regarding  proTjate  of  wills.     Prior  to  the 

anionciment  of  this  section  in  1901,  an  ordor 
refusing  to  revoke  probate  of  will  was  not 
appealable  (Estate  of  Montgoinery,  5."j  Cal. 
210;  Estate  of  Sbarboro,  7U  Cal.  147;  11 
Pac.  563;  Estate  of  Hathaway,  111  Cal. 
270;  43  Pac.  7.54;  Estate  of  Winslow,  12S 
Cal.  311;  60  Pac.  931);  but  now  an  order 
refusing  the  probate  of  a  will  is  appeahable 
(Estate  of  Ilughston,  133  Cal.  321;  6.3  Pac. 
742;  Hartmann  v.  Smith.  140  Cal.  461;  74 
Pac.  7),  under  the  third  subdivision  of  this 
section,  and  not  under  the  first  subdivision. 
Estate  of  Fay,  14."j  Cal.  82;  104  Am.  St. 
Eep.  17;  78  Pac.  340.  The  only  appealable 
orders  in  probate  matters  are  those  desig- 
nated in  the  third  subdivision  of  this  sec- 
tion; and  an  order  dismissing  a  contest  of 
the  probate  of  a  will  after  probate  is  ap- 
pealable. Estate  of  Edelman,  148  Ca).  233; 
113  Am.  St.  Rep.  231;  82  Pac.  962.  An 
order  dismissing  the  contest  of  a  proved 
will  is,  in  effect,  an  order  refusing  to  re- 
voke the  probate  of  the  will,  and  aujieal- 
able  (Mahoney  v.  Superior  Court,  140  Cal. 
513;  74  Pac.  13);  but  an  order  revoking  an 
order  refusing  to  admit  a  will  to  probate  is 
not  appealable.  Estate  of  Bouyssou,  1  Cal. 
App.  657;  82  Pac.  1066.  For  orders  previ- 
ous to  the  change  in  the  statute,  sec  Estate 
of  Sbarboro,  70  Cal.  147;  11  Pac.  563.  An 
order  denying  a  motion  for  a  new  trial  in 
a  contest  over  the  probate  of  a  will  is  ap- 
pealable, where  there  is  an  appeal  from  a 
Judgment  or  order  in  such  contest  (Hart- 
mann V.  Smith,  140  Cal.  461;  74  Pac.  7; 
and  see  Estate  of  Spencer,  96  Cal.  448;  31 
Pac.  453) ;  as  is  also  an  order  directing  the 
payment  of  attorney's  fees  to  the  unsuc- 
cessful proponent  of  a  will.  Mousnier  v. 
Superior  Court,  159  Cal.  663;  115  Pac.  221. 

Regarding  trustee  in  -will.  An  order 
vacating  an  order  substituting  a  trustee 
for  the  one  appointed  in  a  will  is  not  ap- 
pealable. Estate  of  Moore,  86  Cal.  58;  24 
Pac.  816. 

Regarding  setting  aside  of  property.  An 
order  setting  apart,  or  refusing  to  set 
apart,  a  homestea<l  to  a  widow  is  appeal- 
able (Estate  of  Burns,  54  Cal.  223;  Gruwell 
v.  Seybolt,  82  Cal.  7;  22  Pac.  938;  Estate 
of  Harrington,  147  Cal.  124;  109  Am.  St. 
Eep.  118;  81  Pac.  546);  and  the  right  to 
have  such  order  reviewed  for  error  is  lost 
bv  failure  to  appeal  therefrom.  Gruwell  v. 
Seybolt,  82  Cal.  7;  22  Pac.  938.  An  order 
refusing  to  vacate,  in  part,  an  order  set- 
ting apart  a  homestead,  is  not  apjieaiable 
(Estate  of  Cahill,  142  Cal.  628;  76  Pac. 
383) ;  nor  is  an  order  of  the  probate  court, 
setting  aside  its  own  proceedings,  upon  the 
application  of  the  surviving  wife  to  have 
the  homestead  set  aside  to  her,  made  before 
the  final  order,  appealable.  Estate  of  John- 
son, 45  Cal.  257.  An  order  setting  aside  a 
homestead  in  insolvency  proceedings,  and 
such  personal  property  as  is  exempt,  is  ap- 
pealable. Noble  V.  Superior  Court,  109  Cal. 
523;  42  Pac.  155. 


Regarding  family  allowance.  An  appeal 
lies  from  an  original  order  granting  or  re- 
fusing to  grant  a  f'amilv  allowance  (Kstate 
of  Overton,  13  Cal.  App.  117;  108  Pac. 
1021;  Estate  of  Harrington,  147  Cal.  124; 
109  Am.  St.  Eep.  118;  81  Pac.  546;  Estate 
of  Stevens,  83  Cal.  322;  17  Am.  St.  Kep. 
252;  23  Pac.  379;  Estate  of  Nolan,  145  Cal. 
559;  79  Pac.  428);  and  this  rule  applies  to 
an  order  directing  the  payment  of  a  family 
allowance  for  a  widow,  in  the  case  of  an 
insolvent  estate,  for  a  period  subsequent 
to  one  year  after  the  granting  of  letters 
testamentary  or  of  administration  (Estate 
of  Treat,  162  Cal.  250;  121  Pac.  1003);  but 
no  appeal  can  be  taken  from  an  order  dis- 
continuing a  family  allowance.  Estate  of 
Overton,  13  Cal.  App.  117;  108  Pac.  1021. 
The  special  administrator  of  the  estate  of 
a  deceased  person  may  appeal  from  an 
order  directing  him  to  pay  arrearages  in 
the  family  allowance,  which  had  accrued 
since  the  suspension  of  the  general  admin- 
istrator, and  also  from  a  decree  of  partial 
distribution.  Estate  of  Welch,  1(J6  Cal. 
427;  39  Pac.  805.  An  order  directing  one 
who  has  been  appointed  guardian  of  the 
estate  of  a  minor,  but  who  has  never  given 
bonds,  to  pay  for  the  maintenance  of  the 
minor,  is  appealable.  Murphy  v.  Superior 
Court,  84  Cal.  592;  24  Pac.  310. 

Regarding  probate  sales.  An  order  of 
the  probate  court,  directing  the  sale  of  real 
property,  is  appealable  (Stuttnieister  v. 
Superior  Court,  71  Cal.  322;  12  Pac.  270; 
and  see  Estate  of  Corwin,  61  Cal.  IGl); 
as  is  also  an  order  directing  or  refusing  to 
direct  a  conveyance  of  real  estate  by  an 
executor  or  administrator  (Estate  of  Cor- 
win, 61  Cal.  160;  Estate  of  Bazzuro,  161 
Cal.  71;  118  Pac.  454);  and  an  order  di- 
recting a  resale  of  real  property,  which 
had  been  sold  by  the  administrator  and 
the  sale  confirmed  (Estate  of  Boland.  55 
Cal.  310);  and  an  order  confirming  a  sale 
of  real  property,  made  under  a  power  of 
sale  in  the  will,  and  directing  a  convey- 
ance thereof  to  be  made  (Estate  of  Pear- 
sous,  98  Cal.  603;  33  Pac.  451);  and  an 
order  setting  aside  a  prior  order  confirm- 
ing the  sale  of  land  belonging  to  the  estate 
of  a  deceased  person  (Estate  of  West,  162 
Cal.  352;  122  Pac.  953);  but  an  order  of 
the  probate  court,  directing  an  executor 
to  proceed  with  the  sale  of  real  property, 
previously  ordered  to  be  sold,  is  not  ap- 
pealable. Estate  of  Martin,  56  Cal.  208. 
An  order  refusing  the  confirmation  of  a 
sale  of  real  property,  and  refusing  to  hear 
evidence  thereon,  is,  in  effect,  an  order 
against  directing  the  sale  or  conveyance  of 
real  estate,  and  is  appealable.  Estate  of 
Leonis,  138  Cal.  194;  71  Pac.  171.  Under 
the  former  statute,  an  order  of  the  probate 
court  refusing  to  set  aside  an  order  for 
the  sale  of  real  property  was  not  appeal- 
able. Estate  of  Smith,  51  Cal.  563.  An 
order  authorizing  an  executor  to  mortgage 
the  lands  of  the  estate  is  an  order  direct- 


963 


APPEALS  TO   SUPREME   COURT. 


1132 


ing  the  conveyance  of  real  property,  and 
is  appealable.  Estate  of  McConnell,  74 
Cal.  217;  15  Pac.  746.  An  order  dismiss- 
ing a  petition  for  an  order  that  the  ex- 
ecutor of  an  estate  return  to  the  petitioner 
the  purchase-money  paid  for  real  estate  of 
the  testator,  in  pursuance  of  an  order  of 
the  court  confirming  the  sale  of  such  es- 
tate, is  not  appealable.  Estate  of  Wil- 
liams, 3  Cal.  Uurep.  7SS;   32  Pae.  241. 

Regarding  settlement  of  accounts  of  ex- 
ecutors and  administrators.  An  order  set- 
tling the  account  of  an  executor  is  not  a 
final  judgment,  within  the  meaning  of  the 
first  subdivision  of  this  section  (Estate  of 
Franklin,  133  Cal.  5S4;  6.5  Pac.  lOSl) ;  but, 
under  the  third  subdivision,  such  an  order 
is  appealable  (Estate  of  Richmond,  9  Cal. 
App.  402;  99  Pac.  554;  Estate  of  Sander- 
son, 74  Cal.  199;  15  Pac.  753;  Estate  of 
Eose,  80  Cal.  166;  22  Pac.  86;  Estate  of 
Grant,  131  Cal.  426;  63  Pac.  731),  if  the 
appeal  is  taken  within  sixty  days  (Estate 
of  Sanderson,  74  Cal.  199;  15  Pae.  753; 
§  1715,  post),  irrespective  of  the  amount 
involved,  and  though  a  decree  of  distribu- 
tion is  made  at  the  same  time  (Estate  of 
Delaney,  110  Cal.  563;  42  Pac.  981),  and 
although  the  letters  of  administration  have 
been  revoked.  Estate  of  McPhee,  154  Cal. 
385;  97  Pac.  878.  An  interlocutory  order 
settling  the  account  of  an  administrator, 
but  not  discharging  him  from  his  trust, 
is  appealable.  Estate  of  Rose,  80  Cal.  166; 
22  Pac.  86.  An  order  of  a  probate  court, 
setting  aside  an  order  by  which  the  annual 
account  of  an  executor  was  allowed,  is  not 
appealable  (Estate  of  Dunne,  53  Cal.  631; 
Estate  of  Cahalan,  70  Cal.  604;  12  Pac. 
427) ;  nor  is  an  order  vacating  a  prior  order 
settling  the  final  account  of  an  adminis- 
trator. Estate  of  Hickey,  121  Cal.  378;  53 
Pae.  818. 

Regarding  distribution.  A  decree  of 
final  distribution  is  appealable  (Estate  of 
Wiard,  83  Cal.  619;  24  Pac.  45;  Dalv  v. 
Peunie,  86  Cal.  552;  21  Am.  St.  Rep.  61; 
25  Pae.  67) ;  as  is  also  an  order  decreeing 
a  partial  distribution  of  an  estate,  upon 
the  petition  of  the  legatees  (Estate  of 
Mitchell,  121  Cal.  391;  53  Pae.  810);  there- 
fore relief  against  an  erroneous  decree 
cannot  be  had  in  equity  (Daly  v.  Pennie, 
86  Cal.  552;  21  Am.  St.  Rep.  61;  25  Pac. 
67);  but  an  order  refusing  to  postpone  a 
decree  of  final  distribution  is  not  appeal- 
able (Estate  of  Burdick,  112  Cal.  387;  44 
Pac.  734) ;  nor  is  an  order  declaring  an 
executor  or  administrator  in  contempt  for 
disobedience  of  a  decree  of  distribution 
(Estate  of  Wittmeier,  118  Cal.  255;  50  Pac. 
393) ;  nor  an  order  vacating  a  decree  of 
final  distribution  (Estate  of  Murphy,  128 
Cal.  339;  60  Pac.  930);  nor  an  order  vacat- 
ing a  decree  of  distribution  and  the  settle- 
ment of  the  final  account  of  the  executor 
(Estate  of  Calahan,  60  Cal.  232);  nor  an 
order  refusing  to  vacate  and  set  aside  a 
decree   of   final   distribution,   and   denying 


a  new  trial  (Estate  of  Wiard,  83  Cal.  619; 
24  Pac.  45);  nor  an  order  refusing  to  set 
aside  and  vacate  an  order  of  distribution, 
and  to  settle  the  final  account  of  an  ex- 
ecutor. Estate  of  Lutz,  67  Cal.  457;  8  Pac. 
39. 

Regarding  payment  of  claims.  An  order 
directing  the  payment  of  a  claim  by  an  ad- 
ministrator is  appealable:  no  limitation  as 
to  the  amount  of  the  debt  or  claim  being 
made  by  statute,  the  fact  that  the  claim 
is  less  than  three  hundred  dollars  does  not 
impair  the  right  of  appeal.  Ex  parte  Or- 
ford,  102  Cal.  656;  36  Pac.  928.  An  order 
directing  the  payment  of  a  preferred  claim 
against  an  estate  is  appealable,  notwith- 
standing a  previous  adjudication  that  it  is 
a  preferred  claim,  from  which  no  appeal 
has  been  taken  (Estate  of  Smith,  117  Cal. 
505;  49  Pac.  456);  and  an  order  dismiss- 
ing a  petition  to  have  an  administrator 
show  cause  why  a  claim  that  has  been  al- 
lowed should  not  be  paid,  is  appealable. 
Estate  of  McKinley,  49  Cal.  152.  The 
word  "claim",  includes  a  demand  for  coun- 
sel fees  allowed  by  the  court  to  the  admin- 
istrator for  the  services  of  his  attorney 
(Cross  v.  Superior  Court,  2  Cal.  App.  342; 
83  Pac.  815);  hence,  an  order  allowing 
counsel  fees  to  the  attorney  of  an  executor 
is  appealable.  Estate  of  Kruger,  123  Cal. 
391;  55  Pac.  1056.  The  demand  of  an  at- 
torney for  compensation  for  services  ren- 
dered an  administrator  during  the  progress 
of  the  settlement  of  the  estate  of  his  dece- 
dent, which  is  presented  to  the  adminis- 
trator, and  allowed  and  approved  by  the 
probate  court,  and  ordered  to  be  paid  out 
of  the  estate  in  the  due  course  of  ailminis- 
tration,  although  not  technically  a  "claim" 
against  the  estate  within  the  meaning  of 
this  section,  will  be  treated  as  such,  and 
the  order  directing  the  administrator  to 
pay  it  is  appealable  (Stuttmeister  v.  Su- 
perior Court,  72  Cal.  487;  14  Pac.  35); 
but  no  appeal  lies  from  an  order  vacating 
the  allowance  of  a  claim  against  an  estate. 
Kowalskv  V.  Superior  Court,  13  Cal.  App. 
218;  109  Pae.  158. 

New  trials  and  appeals  in  probate.  See 
also  note  post,  §§  1466,  1714. 

Judgment  in  special  proceeding.  An 
appeal  lies  from  a  judgment  in  a  special 
proceeding,  removing  an  officer.  Covarrn- 
bias  V.  Board  of  Supervisors,  52  Cal.  622. 
A  final  judgment  in  condemnation  pro- 
ceedings is  a  special  proceeding,  and  ap- 
pealable. Sacramento  etc.  R.  R.  Co.  v. 
Harlan,  24  Cal.  334.  Final  orders  in  a 
special  probate  proceeding  are  not  appeal- 
able, under  the  provision  of  this  section, 
that  an  appeal  lies  from  a  final  judgment 
entered  in  a  special  proceeding  commenced 
in  the  superior  court.  Estate  of  Ohm,  82 
Cal.  160;  22  Pac.  927. 

In  foreclosure  suit.  An  order,  in  an 
ordinary  foreclosure  action,  to  emjiower  a 
third  person,  who  is  not  a  party  to  the  ac- 
tion, and  who  is  designated  as  an  agent  of 


1133 


INSOLVEXCY — DISMISSAL  OF  APPEALS. 


§963 


the  court,  to  remove  aud  retain  a  certain 
defendant's  jiroperty,  is  not  appealable. 
Boca  etc.  K.  1\'.  Co.  v.  Superior  Court,  150 
Cal.  \A7;  S8  Pac.  715. 

In  insolvency.  An  order  setting  aside 
an  order  settling  an  account  of  the  as- 
signee of  en  insolvent  debtor,  reported  by 
a  referee  in  an  action  by  creditors  to  set 
aside  and  \acate  a  fraudulent  assignment 
of  the  insolvent,  is  not  a  special  order 
made  after  final  judgment,  and  is  not  aj)- 
pealable.  Ktchebarne  v.  Koediug,  89  Cal. 
517;  26  Pac.  I07!i. 

Appeal  dismissed  when.  A  motion  to 
dismiss  an  appeal  from  a  judgment,  on  the 
ground  that  the  transcript  does  not  contain 
a  complete  judgment  roll,  will  be  denied, 
where,  before  the  hearing  of  the  motion, 
the  defects  in  the  judgment  roll  are  reme- 
died. Eichardson  v.  Eureka,  92  Cal.  64;  28 
Pac.  102.  Upon  appeal  from  an  order 
denying  a  motion  to  vacate  and  set  aside 
a  judgment  and  an  order  denying  a  new 
trial,  and  to  stay  execution,  the  ex  parte 
certificate  of  the  judge,  that  certain  papers 
annexed  were  used  by  the  moving  party 
on  the  hearing  of  the  motion,  and  that 
he  used  no  other  evidence,  but  that  the 
court,  of  its  own  motion,  took  notice  of  its 
records,  is  not  the  equivalent  of  the  bill  of 
exceptions  required  by  the  rule  of  the  su- 
preme court,  and,  in  the  absence  of  such 
iaill,  the  appellant  is  not  entitled  to  be 
heard,  and  the  appeal  will  be  dismissed. 
Ramsbottom  v.  Fitzgerald,  128  Cal.  75;  60 
Pac.  522. 

Motion  to  dismiss.  The  rule  sometimes 
applied  by  the  appellate  court,  in  its  dis- 
cretion, that  the  merits  of  an  appeal  will 
not  be  considered  upon  a  motion  to  dismiss, 
will  not  be  applied  when  the  motion  is 
made  on  the  ground  that  the  order  is  not 
appealable.  Grev  v.  Brennan,  147  Cal.  355; 
81  Pac.  1014. 

CODE  COMMISSIONERS'  NOTE.  1.  Appeals 
from  final  judgments.  An  appeal  lies  from  a 
judgment  for  contempt.  Ware  v.  Robinson,  9 
Cal.  107;  Ex  parte  Rowe,  7  Cal.  175;  see  Briggs 
V.  McCullough,  36  Cal.  542.  From  a  judgment 
in  a  proceeding  for  the  condemnation  of  land. 
San  Francisco  etc.  R.  R.  Co.  v.  Mahoney,  29 
Cal.  112:  Sacramento  etc.  R.  R.  Co.  v.  Harlan, 
24  Cal.  334.  From  a  judgment  in  an  insolvent 
case.  People  v.  Rosborough,  29  Cal.  415.  For 
a  judgment  for  less  than  three  hundred  dollars, 
whon  the  amount  claimed  in  the  complaint  ex- 
ceeds that  sum.  Solomon  v.  Reese,  34  Cal.  28. 
From  a  judgment  rendered  at  chambers.  Brew- 
ster V.  Hartley,  37  Cal.  15;  99  Am.  Dec.  237. 
From  a  judgment  in  certiorari  cases.  Morley  v. 
Elkins,  37  Cal.  454.  From  a  judgment  in  a 
contested-election  case.  Dorsey  v.  Barry,  24 
Cal.  449;  Day  v.  Jones,  31  Cal.  261;  Knowles  v. 
Yates,  3i  Cal.  82.  From  a  decree  in  a  divorce 
case.  Conarit  v.  Conant,  10  Cal.  249;  70  Am. 
Dec.  717:  see  also  Neall  v.  Hill.  16  Cal.  145; 
76   Am.  Dec.   508;   Adams  v.   Woods,   18  Cal.  30. 

2.  From  what  orders  an  appeal  will  lie.  An 
order  setting  aside  a  decree  in  equity.  Kiddle 
V.  Baker,  13  Cal.  295.  An  order  changing  a 
judgment.  Bryan  v.  Berry,  8  Cal.  130.  An 
order  refusing  to  quash  an  execution.  Oilman  v. 
Contra  Costa  County,  8  Cal.  52;  68  Am.  Dec. 
290.  An  order  setting  aside  an  execution.  Bond 
V.  Pacheco,  30  Cal.  530.  An  order  granting  an 
injunction.  Sullivan  v.  Triunfo  Gold  etc.  Min. 
Co.,  33  Cal.  385. 


3.  From  what  orders  an  appeal  will  not  lie. 
An  order  grunting  n  nonsuit.  .Juan  v.  Ingoldsby, 
6  Cal.  439.  An  order  made  b<fi)ri'  final  judg- 
ment refusing  to  transfer  a  cause  to  a  United 
States  court.  Brooks  v.  Caldi'rwood,  19  Cal. 
124;  Hopper  v.  Kalkman,  17  Cal.  517.  An  or- 
der refusing  to  set  aside  »  former  order.  Horn 
V.  Volcano  Water  Co.,  18  Cal.  141;  Henly  v. 
Hastings,  3  Cal.  341.  An  order  overruling  a 
di'murrer.  Gates  v.  Walker,  35  Cal.  289;  Mo- 
raga  v.  Kmeric,  4  Cal.  308;  People  v.  Ah  Fong, 
12  Cal.  424.  From  an  order  admitting  a  parly 
to  bail  under  the  provisions  of  the  Habeas 
Corpus  Act.  People  v.  Schuster,  40  Cal.  627. 
From  an  order  sustaining  a  demurrer.  The  order 
can  only  be  reviewed  through  an  appeal  from 
the  judgment.  Hibberd  v.  Smith,  39  Cal.  145; 
Agard  v.  Valencia,  39  Cal.  292;  Daniels  v. 
Landsdale,  38  Cal.  567.  In  Briggs  v.  McCul- 
lough,  3G  Cal.  542,  the  question  was  raised, 
but  not  decided,  whether  an  appeal  lies  from 
an  order  made  after  final  judgment  adjudging  a 
judgment  debtor  guilty  of  contempt  for  not 
applying  his  property  on  the  execution.  An 
order  vacating  an  order  dismissing  a  cause. 
Gates  V.  Walker,  35  Cal.  289.  An  order  vacat- 
ing an  order  of  reference  and  the  proceedings 
had  under  it.  Hastings  v.  Cunningham,  35  Cal. 
549;  Johnson  v.  Hopkins,  6  Cal.  83;  Baker  v. 
Baker,  10  Cal.  527.  From  an  order  making  a 
new  party  defendant.  Beck  v.  San  Francisco, 
4  Cal.  375.  From  an  order  refusing  to  grant  a 
commission  to  take  testimony.  People  v.  Still- 
man,  7  Cal.  117.  From  an  interlocutory  order, 
except  in  the  cases  provided  by  the  code.  De 
Barry  v.  Lambert,  10  Cal.  503.  From  an  order 
of  court  refusing  to  set  aside  an  interlocutory 
judgment.  Stearns  v.  Marvin,  3  Cal.  376.  From 
an  order  overruling  a  motion  for  a  new  trial, 
when  the  party  fails  to  prosecute  his  motion 
before  the  district  court.  Mahoney  v.  Wilson, 
15  Cal.  43;  Frank  v.  Doane,  15  Cal.  304.  From 
an  order  denying  leave  to  intervene.  Wenborn 
v.  Boston,  23  Cal.  321.  From  an  order  made 
in  an  action  pending  in  the  district  court  staying 
all  proceedings  therein  until  the  further  direc- 
tion of  the  court.  Rhodes  v.  Graig,  21  Cal.  419. 
From  an  order  directing  a  statement  on  motion 
for  a  new  trial  to  be  settled.  Leffingwell  v. 
Griflfing,  29  Cal.  192.  From  an  order  striking 
out  a  statement  on  motion  for  a  new  trial. 
Quivey  v.  Gambert,  32  Cal.  304;  Ketchum  v. 
Crippen,  31  Cal.  365.  From  an  order  denying 
a  motion  to  certify  a  statement.  Genella  v. 
Relyea,  32  Cal.  159.  From  a  judgment  of 
nonsuit  rendered  on  motion  of  the  parly  appeal- 
ing. Sleeper  v.  Kelly,  22  Cal.  456.  From  an 
order  overruling  exceptions  to  a  referee's  re- 
port. Peck  v.  Courtis,  31  Cal.  207.  From  an 
order  refusing  to  amend  an  order  allowing  time 
to  move  for  a  new  trial.  Pendegast  v.  Kno.x,  32 
Cal.  73.  If  the  plaintiff  dismisses  the  action 
before  trial,  and  the  court,  on  defendant's  mo- 
tion, makes  an  order  restoring  the  cause  to  the 
calendiir,  no  appeal  lies  from  this  order.  Dimick 
V.  Deringer,  32  Cal.  488.  An  order  made  on 
motion  to  retax  costs.  Stevenson  v.  Smith,  28 
Cal.  102;  87  Am.  Dec.  107;  Lew  v.  Geteeson, 
27  Cal.  686;  Lasky  v.  Davis,  33  Cal.  677;  see 
also  Meeker  v.  Harris,  23  Cal.  285.  Orders 
that  are  not  appealable  can  only  be  reviewed 
through  an  appeal  from  the  judgment.  Gates 
V.   Walker,    35   Cal.   289. 

4.  Orders  in  partition.  An  appeal  does  not 
lie  from  an  interlocutory  judgment,  rendered  in 
partition,  determining  the  interests  of  the  sev- 
eral parties,  and  appointing  a  referee  to  make 
a  partition,  and  report  the  same  to  the  court. 
Gates  V.  Salmon,  28  Cal.  320.  An  interlocutory- 
judgment  in  partition,  which  adjudges  that  one 
of  the  paities  has  no  interest  in  the  property, 
is  not  a  final  judgment  as  to  him.  from  which 
he  can  appeal.  Peck  v.  Vandenberg,  30  Cal. 
11.  On  the  22d  of  April,  1863,  no  appeal  could 
be  taken  from  an  interlocutory  judgment,  in 
an  action  for  partition  to  be  made.  Nor  was  an 
appeal  from  such  a  judgment,  rendered  before 
the  passage  of  the  act,  given  by  the  act  of  March 
23,  1864.  Id.;  Moulton  v.  Ellmaker,  30  Cal.  527. 
The  act  of  1864,  allowing  appeals  to  be  taken 
from   an  interlocutory   order   in  partition,    deter- 


§§964,965 


APPEALS  TO  SUPREME  COURT. 


1134: 


a  demurrer  is  properly  sustained,  and  the  ad- 
verse party  denines,  after  leave,  to  amend,  the 
judgment  will  not  be  reversed  to  allow  an 
amendment.  Sutter  v.  San  Francisco,  36  Cal. 
112.  For  a  technical  variance  between  the  evi- 
dence, findings,  and  pleadings,  a  judgment  will 
not  be  reversed,  if  the  objection  is  taken  for 
the  first  time  in  the  appellate  court.  Dikeman 
V.  Norrie,  36  Cal.  94.  A  party  cannot  prose- 
cute two  separate  and  distinct  remedies  in  the 
supreme  court  for  a  review  of  the  same  question 
at  the  same  time.  Kirk  v.  Reynolds,  12  Cal. 
99.  An  appeal  from  a  judgment,  and  from  an 
order  denying  a  new  trial,  may  be  prosecuted 
separately,  or  the  two  appeals  may  1  ■  prose- 
cuted together.  Carpentier  v.  Williamson,  25 
Cal.  159. 


mining  the  rights  of  SPvcral  parties,  and  direct- 
ing a  partition,  did  not  apply  to  judgments  ren- 
dered before  its  passage.  Peck  v.  Courtis,  31 
Cal.  207. 

5.  Generally.  Error  must  affirmatively  ap- 
pear. Todd  V.  Winants,  36  Cal.  129.  If  the 
judgment  is  broader  than  the  facts  alleged  and 
found,  it  is  no  ground  for  a  new  trial.  The 
remedy  is  by  appeal  from  the  judgment.  Shep- 
ard  V.  McNeil,  38  Cal.  72.  If,  on  an  appeal 
from  an  order  refusing  to  grant  a  new  trial, 
the  order  is  reversed,  and  the  cause  remanded 
for  a  new  trial,  the  judgment  of  the  court  be- 
low is  vacated.  Fulton  v.  Hanna,  40  Cal.  278. 
A  finding  made  upon  conflicting  evidence  will 
not  be  disturbed  on  appeal.  Frost  v.  Harford, 
40  Cal.  165;  Lick  v.  Madden,  36  Cal.  208;  95 
Am.   Dec.   175;    King  v.   Meyer,    35   Cal.   646.      If 

§  964.    Appeals ;  in  what  cases  appealed  from  justices'  courts.     The  f ore- 

ti^oing  section  does  not  apply  in  cases  appealed  from  justices',  police,  or 
other  inferior  courts,  except  cases  of  forcible  entry  and  detainer,  and  cases 
involving  the  title  or  possession  of  real  property,  or  the  legality  of  any  tax, 
impost,  assessment,  toll,  or  municipal  fine,  or  in  which  the  demand,  ex- 
clusive of  interest,  or  the  value  of  the  property  in  controversy,  amounts  to 
three  hundred  dollars. 

Appeals  to  superior  court.    Post,  §§  974  et  seq. 
Forcible  entry  and  detainer.      Concurrent  juris- 
diction of  justices'  courts.    Ante,  §  113,  subd.  1. 

Legislation  §  964.  1.  Added  by  Cods  Amdts. 
1880,  p.  15. 

3.  Repeal  by  Stats.  1901,  p.  174:  unconsti- 
tutional. See  note  ante,  §  5.  See  ante,  Legislation 
Chapter  II. 


Test  of  jurisdiction.  V^here,  in  an  ac- 
tion commenced  in  the  justice's  court,  the 
sum  demanded  is  less  than  three  hundred 


dollars,  the  jurisdiction  of  the  justice,  as 
well  as  the  appellate  jurisdiction  of  the 
supreme  court,  must  be  tested  by  the  sum 
demanded  in  the  complaint;  but  the  costs, 
though  more  than  three  hundred  dollars, 
cannot  be  deemed  a  part  of  the  demand. 
Henigan  v.  Ervin,  110  Cal.  37;  42  Pac.  457. 
Appeals  from  justice's  court  to  superior 
court.    See  note  post,  §  974. 


§  965.  Appeals  by  executors  and  administrators.  When  an  executor, 
administrator,  or  guardian,  who  has  given  an  official  bond,  appeals  from  a 
judgment  or  order  of  the  superior  court  made  in  the  proceedings  had  upon 
the  estate  of  which  he  is  executor,  administrator,  or  guardian,  his  official 
bond  shall  stand  in  the  place  of  an  undertaking  on  appeal;  and  the  sureties 
thereon  shall  be  liable  as  on  such  undertaking. 


Probate  appeals.    Ante,  §  963,  subd.  3. 

Legislation  §  965.  1.  Added  by  Code  Amdts. 
18SO,  p.   15. 

2.  Amendment  by  Stats.  1901,  p.  171,  and 
renumbered  §  938  ;  repeal  by  Stats.  1901,  p.  174 ; 
unconstitutional.  See  note  ante,  §  5.  See  ante, 
Legislation  Chapter  II. 

Application  of  section.  This  section  ap- 
plies to  appeals  from  judgments  and  orders 
made  in  probate  proceedings;  therefore 
the  bond  of  an  administratrix  stands  in  the 
place  of  an  undertaking  on  appeal,  not 
only  for  the  purpose  of  perfecting  the  ap- 
peal, but  also  to  stay  procpedinps  under 
the  order  appealed  from,  directing  the  pay- 
ment of  a  debt  or  claim.  Ex  parte  Orford, 
102  Cal.  6.56;  36  Pac.  928;  and  see  In  re 
Sharp,  92  Cal.  577;  28  Pac.  783.  But  this 
section  does  not  apply  where  there  is 
nothing  in  the  record  to  show  that  the 
executors,  who  appealed,  ever  gave  any 
official  bond,  and  where  the  appeal  was  not 
from  an  order  made  in  proceedings  had 
upon  the  estate.  Pacific  Paving  Co,  v. 
Bolton,  89  Cal.  154;  26  Pac.  650, 


Necessity  of  giving  undertaking  on  ap- 
peal. Upon  an  appeal  by  an  administrator, 
who  has  given  an  official  undertaking,  from 
an  order  directing  him  to  make  a  convey- 
ance of  real  estate,  an  undertaking  on 
appeal  is  unnecessary.  Estate  of  Corwin, 
61  Cal.  160.  An  appeal  from  an  order  of 
distribution  by  the  executor  of  a  deceased 
heir  does  not  entitle  such  executor  to 
claim  the  benefit  of  this  section  as  to 
bonds  on  appeal,  the  appeal  not  being  from 
an  order  made  in  the  settlement  of  estate 
of  which  he  is  executor.  Estate  of  Sker- 
rett,  SO  Cal.  62;  22  Pac.  85.  An  appeal  by 
an  administrator  of  an  estate  from  an 
order  revoking  his  letters  is  not  a  pro- 
ceeding had  upon  the  estate  of  which  he  is 
executor,  within  the  meaning  of  this  sec- 
tion, providing  that  no  bond  need  be  given 
(Estate  of  Danielson,  88  Cal.  480;  26  Pac. 
505);  nor  is  an  appeal  by  a  special  admin- 
istratrix, subsequently  to  her  resignation, 
from  an  order  disallowing  her  accounts, 
within  the  meaning  of  this  section.  Estate 
of  McDermott,  127'Cal.  450;  59  Pac.  783 


1135  VACATION  OP  ORDERS — APPEALS  TO  SUPERIOR  COURTS.         §§  966-974 

Interest  warranting  appeal.     An  executor  adjudications  fixing  thoir  rights  and   dis- 

or  administrator  has,   in   general,  no  such  triliuting  the  estate  accordingly.   Estate  of 

interest  in  the  conflicting  claims  of  heirs  Welch,  106  Cal.  427;  39  Pae.  805. 
and   devisees  as  warrant  his   appeal   from 

§  966.  Acts  of  executors  and  administrators,  where  appointment  vacated. 
"When  the  judgment  or  order  appointing  an  executor,  or  administrator,  or 
guardian,  is  reversed  on  appeal,  for  error,  and  not  for  want  of  jurisdiction 
of  the  court,  all  lawful  acts  in  administration  upon  the  estate  performed 
by  such  executor,  or  administrator,  or  guardian,  if  he  have  qualified,  are 
as  valid  as  if  such  judgment  or  order  had  been  affirmed. 

Appointment    of    executor,    etc.,    appeal    from,  miRht  be  taken  to  the  supreme  court  from  a  final 

Ante,  §  9(i3,  subd.  3.  judgment  of  the  county  court. 

Restitution  on  reversal,   etc.    Ante,  §  957.  Acts    pending    appeal.      A    guardian    has 

Legislation  g  966.     Added     by     Code     Amdts.  not,  under  this  section,  the  right  to  act  as 

18SO,  p.  15.  such  pending  an  appeal  from  the  order  ap- 

The  original  §  966  was  based  on  Practice  Act,  Tir.;nf;r,n-   Viirv,      r'^v,,,..»,    ■■,     xj,.„^„     in    r'„i 

§359,     as     amended    by    Code     Amdts.     1866-67!  ^^^     i^^^^^or                            Hynes,    161    Cal. 

p.    846,    and   prescribed   in   what   cases   an   appeal  685  J  120  Pac.  26. 

[§§  967,  968,     There  never  have  been  any  sections  with  these  numbers.] 

§  969.  [Provided  when  appeal  might  be  taken  from  probate  court.  Re- 
pealed.] 

Legislation  §  969.    1.  Enacted  March  11,  1873.  4.  Repealed    by    Code     Amdts.     1880,    p.  64. 

2.  Amended  by  Code  Amdts.  1873-7-t,  p.  341.         See  post,  Legislation  Chapter  IV 

3.  Amended  by   Code  Amdts.  1877-78,  p.  104. 

§  970.  [Provided  that  administrators  were  not  required  to  give  under- 
taking on  appeal.     Repealed.] 

Legislation  §  970.     1.  Enacted  March  11,  1873.        See  post,  Legislation  Chapter  IV. 
3.   Repealed    by    Code    Amdts.     1S80,    p.     64. 

§  971.  [Provided  that  acts  of  administrator,  etc.,  were  not  invalidated 
by  reversal  of  order  appointing  him.     Repealed.] 

Legislation  §  971.     1.  Enacted  March  11,  1872.  3.   Repealed    by    Code    Amdts.    1880,    p     64 

3.   Amended  by  Code  Amdts.  1873-74,  p.  341.        See  post.  Legislation  Chapter  IV. 

CHAPTER  III. 
APPEALS    TO    SUPEEIOE    COURTS. 

§  974.     Appeal     from     judgment     of     justice's     or         §  978.     Undertaking  on  appeal 

.  o-T^       A   P°"f*  ''°'^''*-  .■  r  ,  c.   .  .  ^  ^''^^-  ^'''.'"^  °^  undertaking.'     Exception  to  and 

8  975.     Appeal  on  questions  of  law.      Statement.  justification   of   sureties 

§  976.     Appeal   on   questions   of   fact,    or   law   and  §  979.     Stay  of  proceedings  on  filing  undertaking. 

^'"■t-  §  980.     Powers  of  superior  court  on  appeal. 

§  977.    Transmission  of  papers  to  appellate  court.  §  981.      Fees  payable  on  filing  appeal. 

Legislation  Chapter  III.    1.  Enacted  March  11,        be  taken  to  the  supreme  court  from  county  courts 
1872,     and     then     contained     only     one     section  3.   Amended    by    Code    Amdts      18SO     p      14 

(§  966),  relating  to  the  time  when  appeals  might        See  ante,  Legislation  Chapter  H.  ' 

§  974.  Appeal  from  judgment  of  justice's  or  police  court.  Any  party 
dissatisfied  with  a  judgment  rendered  in  a  civil  action  in  a  police  or  jus- 
tice's court,  may  appeal  therefrom  to  the  superior  court  of  the  county,  at 
any  time  within  thirty  days  after  the  rendition  of  the  judgment.  The  ap- 
peal is  taken  by  filing  a  notice  of  appeal  with  the  justice  or  judge,  and 
serving  a  copy  on  the  adverse  party.  The  notice  must  state  whether  the 
appeal  is  taken  from  the  whole  or  a  part  of  the  judgment,  and  if  from  a 
part,  what  part,  and  whether  the  appeal  is  taken  on  questions  of  law  or 
fact,   or  both. 

Notice  of  appeal,  service  of,  on  adverse  party.  Stats.  1854,  Redding  ed.  p.   70.  Korr  ed.  p.  98), 

See   post.  >;§  10  10   et   seq.  ll)    inserting   "civil   action   in   a   nolice  or"   befora 

Legislation  §  974.     1.    Enacted  March  11.  1873  "justice's    court";     (2)    adding    "at"    before    "any 

(based    on    Practica    Act,  §  624,    as    amended    by  time";     (3)    substituting    "is"    for    "shall   be"   be- 


§974 


APPEALS   TO    SUPERIOR   COURTS. 


1136 


fore  "taken";  (4)  inserting  "or  jud^e"  after  "jus- 
tice";  and  (5)  substituting  "must"  for  "sliall" 
before   "state." 

2.  Amended  by  Code  Amdts.  1S80,  p.  15, 
substituting   "superior"  for  "county." 

3.  Amendment  by  Stats.  1901,  p.  175;  un- 
constitutional.   See  note  ante,  §  5. 

Jurisdiction.  The  steps  required  to  per- 
fect an  appeal  from  a  justice's  court  must 
be  completed  within  the  time  prescribed, 
in  order  to  give  jurisdiction  (Regan  v.  Su- 
perior Court,  14  Cal.  App.  572;  114  Pac. 
72;  Crowley  Launch  etc.  Co.  v.  Superior 
Court,  10  Cal.  App.  342;  101  Pac.  935); 
but  jurisdiction  is  acquired  of  an  appeal 
from  a  justice's  court,  where  all  the  neces- 
sary steps  were  taken  in  time  (Golden 
Gate  Tile  Co.  v.  Superior  Court,  159  Cal. 
474;  114  Pac.  978);  and  also  of  an  appeal 
from  the  judgment  of  a  justice  of  the 
peace,  in  an  action  tried  by  a  jury,  al- 
though when  the  appeal  was  taken  no  judg- 
ment had  been  entered  by  the  justice  in 
conformity  with  the  verdict.  Montgomerv 
V.  Superior  Court,  68  Cal.  407;  9  Pac.  720. 
On  appeal  from  a  justice's  court,  the  appel- 
lant, who  appeared  in  the  superior  court 
and  proceeded,  without  objection,  to  a  trial 
on  the  merits,  cannot  afterwards  question 
the  jurisdiction  of  the  superior  court  on 
the  ground  that  the  justice  had  not  entered 
the  judgment  in  his  docket  at  the  time  the 
appeal  was  taken.  Montgomery  v.  Superior 
Court,  68  Cal.  407;  9  Pae.'720. 

Nature  of  appeal  determined  how.  Where 
the  record  on  appeal  from  a  judgment  of 
a  justice  of  the  peace  contains  a  statement 
of  the  case,  the  superior  court  is  ca.lled 
upon  to  determine  the  nature  of  the  ap- 
peal. Smith  v.  Superior  Court,  2  Cal.  App. 
529;  84  Pac.  54. 

Appealable  judgments  or  orders.  An  ap- 
peal may  be  taken  to  the  superior  court 
on  questions  of  law  or  fact,  or  both,  from 
a  judgment  rendered  in  a  civil  action  in  a 
police  court  or  justice's  court.  Simpson  v. 
Police  Court,  160  Cal.  530;  117  Pac.  553; 
Baird  v.  Justice's  Court,  11  Cal.  App.  439; 
105  Pac.  259;  Bamberger  v.  Police  Court, 
12  Cal.  App.  153;  106  Pac.  894.  A  judg- 
ment by  default  in  a  justice's  court  is  ap- 
pealable (Tucker  v.  Justice's  Court,  120 
Cal.  513;  52  Pac.  808);  but  an  order  made 
by  a  justice  of  the  peace,  in  proceedings 
supplementary  to  execution,  requiring  a 
judgment  debtor  to  apply  designated  prop- 
erty to  the  satisfaction  of  the  judgment, 
is  not  in  the  nature  of  a  judgment,  and  is 
not  appealable:  the  omission  of  all  mention 
of  "orilers,"  in  this  section,  is  significant, 
and  shows  that  there  was  no  intention  to 
give  an  appeal  therefrom  (Wells  v.  Tor- 
rance, 119  Cal.  437;  51  Pac.  626);  nor  is 
an  order  of  a  justice  of  the  peace  vacating 
a  judgment  appealable  (Weimmer  v.  Suth- 
erland, 74  Cal.  341;  15  Pac.  849);  nor  an 
order  vacating  an  order  granting  a  motion 
to  open  a  judgment.  Merriman  v.  Walton, 
105  Cal.  403;  45  Am.  St.  Rep.  50;  30  L.  R.  A. 
786;  38  Pac.  1108.     The  mere  entry  of  the 


verdict  of  a  jury  by  the  justice,  in  his 
docket,  is  not  the  entry  of  the  judgment, 
and  will  not  support  an  appeal  taken  from 
the  judgment.  Thomson  v.  Superior  Court, 
161  Cal.  329;  119  Pac.  98. 

Time  of  appeal.  The  time  for  an  appeal 
from  a  justice's  judgment  begins  to  run 
upon  its  "rendition";  from  the  judgment 
of  a  court  of  record,  it  runs  from  the 
"entry"  of  judgment.  Thomson  v.  Superior 
Court,  161  CaL  329;  119  Pac.  98;  June  v. 
Superior  Court,  16  Cal.  App.  126;  116  Pac. 
293.  The  time  within  which  to  appeal 
from  a  judgment  of  a  justice's  court  is 
not  prolonged  by  any  proceedings  in  such 
court.  Hollenbeak  v.  McCoy,  127  Cal.  21; 
59  Pac.  201.  An  appeal  taken  after  the 
entry  of  the  verdict,  but  before  the  entry 
of  the  judgment,  is  premature,  and  the 
superior  court  does  not  acquire  jurisdiction 
thereof.  Thomson  v.  Superior  Court,  161 
Cal.  329;  119  Pac.  98;  June  v.  Superior 
Court,  16  Cal.  App.  126;  116  Pac.  293. 

How  perfected.  To  perfect  an  appeal 
from  a  justice's  court,  a  notice  of  appeal 
must  be  filed  with  the  justice,  a  copy  of 
such  notice  must  be  served  upon  the  ad- 
verse party,  and  a  written  undertaking 
must  be  filed;  and  all  these  things  are  ju- 
risdictional, and  must  be  done  within 
thirty  daj's  after  the  rendition  of  the 
judgment.  Stimpson  Computing  Scale  Co. 
V.  Superior  Court,  12  Cal.  App.  536;  107 
Pac.  1013;  Crowley  Launch  etc.  Co.  v. 
Superior  Court,  10  Cal.  App.  342;  101  Pac. 
935.  None  of  the  jurisdictional  prerequi- 
sites to  an  appeal  from  a  justice's  court 
can  be  dispensed  with;  nor  can  any  of 
them  be  supplied,  if  not  done;  nor  reme- 
died, if  fatally  defective,  after  the  time 
limited  by  statute.  McKeen  v.  Naughton, 
88  Cal.  462;  26  Pac.  364;  McCracken  v. 
Superior  Court,  86  Cal.  74;  24  Pac.  845; 
Coker  v.  Superior  Court,  58  Cal.  177. 

Eules  of  court  as  to  appeal.  The  su- 
perior court  may,  by  rule,  require  an  ap- 
pellant from  a  justice's  court,  within  thirty 
days  after  the  filing  of  the  transcript  upon 
appeal,  to  deposit  with  the  clerk  the  sum 
of  six  dollars  for  his  costs  upon  the  appeal, 
under  penalty,  for  failure  to  do  so,  of  a 
dismissal  of  the  appeal,  upon  motion,  after 
notice  to  the  appellant.  Eehymer  v.  Su- 
perior Court,  18  Cal.  App.  46'4;  123  Pac. 
340. 

Notice  of  appeal.  An  appeal  is  taken 
by  filing  and  serving  a  notice  of  appeal. 
Jeffries  Co.  v.  Superior  Court,  13  Cal.  App. 
193;  109  Pac.  147;  Moffat  v.  Green  wait, 
90  Cal.  368;  27  Pac.  296.  A  notice  of  ap- 
peal from  a  justice's  court  ig  sufficient  if 
signed  by  the  appellant  personally,  or  by 
any  one  he  may  select  for  that  purpose: 
the  attorney  of  record  need  not  sien  it. 
Totton  V.  Superior  Court,  72  Cal.  37;  13 
Pac.  72.  Where  an  appeal  is  taken  from 
the  whole  of  a  justice's  judgment,  the 
notice  of  appeal  is  not  required  to  state 
whether  the  appeal  is  taken  upon  questions 


1137 


NOTICE  OF  APPEAL UXDEKTAKING. 


§974 


of  law  or  fact.    Eaucr's  Law  etc.   Co.  v. 

Superior  Court,  10  Cal.  App.  423;  102  Pac. 
547.  A  mistake  in  the  date  of  a  judyinont, 
in  a  notice  of  appeal  served  on  a  respond- 
ent, is  not  material,  where  the  judKniont 
is  otherwise  correctly  described.  Sherman 
V.  Kollier^,  9  Cal.  17.  The  notice  of  ap- 
peal is  not  coni'lusive  as  to  the  nature  or 
character  of  the  ajipeal.  Smith  v.  Sujierior 
Court,  2  Cal.  App.  529;  84  Pac.  54.  A 
declaration  in  a  notice  of  appeal  from  a 
justice's  court,  that  it  is  taken  both  upon 
questions  of  law  and  fact,  is  not  conclu- 
sive: such  a  declaration  cannot  vary  the 
fact.  Peacock  v.  Suj)erior  Court,  1(J3  Cal. 
701;  12(5  Pac.  976. 

Service  of  notice.     A  copy  of  the  notice 
of  ajijioal   must   be  served   on   the  adverse 
party   (Green  v.  Rogers,  18  Cal.  App.  572; 
123  Pac.  974),  to  render  the  appeal  effec- 
tual, and  to  give  the  appellate  court  juris- 
diction   (Trobock    v.    Caro,    60    Cal.    301; 
Matthews  v.  Superior  Court,  70  Cal.  527; 
11   Pac.   665) ;   and   a  judgment   of   affirm- 
ance,   rendered    without    such    service,    is 
erroneous  (Trobock  v.  Caro,  60  Cal.  301); 
but  the  party  upon  whom  the  law  requires 
notice   to   be    served    may   voluntarily   ap- 
pear  and   submit   himself   to   the   jurisdic- 
tion of  the  court;  and  his  appearance  is  a 
waiver  of  the  want  of  notice.    Matthews 
V.  Superior  Court,  70  Cal.  527;  11  Pac.  665. 
A  notice  of  appeal  from  a  judgment  of  a 
justice  of  the  peace  may  be  served  on  the 
adverse  party  personally,  although  he  was 
represented    in    the    justice's    court    by    an 
attorney;  and  where  the  adverse  party  is 
a    corjjoration,    service    on    the    manager 
thereof   is   sufficient   to   give   the   superior 
court   jurisdiction.    Pacific    Coast   By.    Co. 
V.  Superior  Court,  79  Cal.  103;  21  Pac.  609. 
Where,   in   an   action   in   a   justice's   court 
against  married  women  on  an  express  con- 
tract, their  husbands  were  joined  as  par- 
ties,    but    judgment    was     rendered     only 
against  the  wives,  upon  an  appeal  by  the 
wives   the   husbands   are   not  adverse  par- 
ties upon  whom  notice  of  appeal  is  to  be 
served.    Terry  v.  Superior  Court,   110  Cal. 
85;    42    Pac.     464.     Adverse     parties    are 
those    who,   by   the   record,    appear   to    be 
interested   in   the  judgment,  so  that   they 
will  be  affected  by  its  reversal  or  nullifica- 
tion;   therefore    i)arties    not    served    with 
summons  in  a  justice's  court,  and  not  hav- 
ing apjieared,  are  not  parties  to  the  judg- 
ment,   and    are    not    adverse    parties    ujjon 
appeal  so  that  it  was  incumbent  that  they 
should   be    served   with   notice    of   appeal. 
Terry  v.   Superior   Court,   110   Cal.   85;   42 
Pac.  464;  Bullock  v.  Taylor,  112  Cal.  147; 
44   Pac.    457.     An   intervener,    if   there   is 
such  under  justice  court  practice,  and  a  de- 
fendant in  an  action  in  a  justice's  court  are 
adverse  parties,  and  must  be  served   with 
notice  of  apjieal.    Rossi  v.  Superior  Court, 
114  Cal.  371;  46  Pac.  177. 

Filing  of  notice.    The  filing  of  the  notice 
of  appeal  with  the  justice  of  the  peace  is 
1  Fair. — 72 


a  jurisdictional  prerequisite  to  the  appeal. 
Coker  v.  Sujierior  Court,  58  Cal.  177.  Tlio 
notice  of  ajipeal  is  not  required  to  be  filed 
prior  to  the  service  of  a  copy  thereof  upon 
the  adverse  party,  nor  nee<l  the  under- 
taking thereon  be  filed  simultaneously  with 
the  notice.  Hall  v.  Superior  Court,  71  Cal. 
550;  12  Pac.  672.  The  marking  of  the  fil- 
ing of  the  notice  of  appeal  by  a  justice 
of  the  peace  is  not  the  only  comjieteut  evi- 
dence of  the  filing  of  the  pajier;  nor  is  the 
absence  of  an  entry  in  the  justice's  docket 
to  that  effect  conclusive  proof  that  it  had 
not  been  filed.  Williams  v.  Superior  (.'ourt, 
5  Cal.  Unrep.  598;  47  Pac.  78;;. 

Failure  of  sureties  to  justify.  An  ap- 
peal is  taken  by  filing  a  notice  of  appeal 
with  the  justice,  and  serving  a  copy  on  the 
adverse  party:  the  fact  that  the  sureties 
did  not  justify  does  not  prevent  the  appeal 
from  having  been  taken.  Moffat  v.  Green- 
wait,  90  Cal.  368;  27  Pac.  296. 

Liability  of  sureties.  Where  the  bond 
given  upon  an  appeal  from  a  judgment  of 
a  justice's  court  is  conditioned  that  if  the 
appeal  should  be  dismissed,  the  sureties 
will  pay  the  judgment  an(i  costs,  the  sure- 
ties take  the  risk  that  the  appeal  may  be 
erroneously  dismissed.  Nolan  v.  Fidelity 
etc.  Co.,  2  Cal.  App.  1;  82  Pac.  1119. 

Effect  of  appeal.  The  effect  of  an  ap- 
peal from  a  judgment  of  a  justice's  court 
is  to  vacate  the  judgment,  and  to  require 
all  the  issues  of  fact  between  the  plaintiff 
and  the  defendant  to  be  tried  anew  in  the 
superior  court.  Rossi  v.  Superior  Court,  114 
Cal.  371;  46  Pac.  177. 

Conclusiveness  of  judgment  on  appeal. 
The  judgment  of  a  superior  court,  on  ap- 
peal from  a  justice's  court,  though  errone- 
ous, is  final  and  conclusive,  where  no  excess 
of  jurisdiction  appears,  and  where  there  is 
no  remedy  by  appeal.  Karry  v.  Superior 
Court,  162  Cal.  2S1 ;  122  Pac.  475. 

Cismissal  of  appeal.  Failure  to  take  an 
appeal  within  thirty  days  after  the  rendi- 
tion of  judgment  in  justices'  courts  is 
ground  for  dismissal.  Hollenbeak  v.  Mc- 
Coy, 127  Cal.  21;  59  Pac.  201.  The  dis- 
missal of  an  appeal  from  an  erroneous 
ju4giuent  of  a  justice  of  the  peace  has  the 
effect  to  affirm  such  erroneous  judgment, 
and  to  put  it  bej'ond  attack  for  any  error 
which  could  have  been  availed  of  on  ap- 
peal. Ritzman  v.  Burnham,  114  Cal.  522; 
46  Pac.  379. 

Appeal  from  recorder's  court.  The  code 
makes  no  provision  for  an  appeal  ^rom  a 
recorder's  court,  but,  under  the  provisions 
of  the  Municipal  Corporation  Act,  such  an 
appeal  is  taken  in  the  same  manner  as  ap- 
peals from  justices'  courts.  Regan  v.  Su- 
perior Court,  14  Cal.  App.  572;  114  Pac.  72. 
Action  on  judgment.  An  independent 
action  in  the  superior  court  on  a  money 
judgment  rendered  in  a  justice's  court  is 
barred,  under  §§  336,  685,  ante,  upon  the 
expiration  of  five  years  after  their  entry. 


975,  976 


APPEALS   TO   SUPERIOR   COURTS. 


1138 


Heinlen  Co.  v.  Cadwell,  3  Cal.  App.  80; 
84  Pac.  443. 

Police  court  may  appeal  from  superior 
court.  A  police  court  may  appeal  from  a 
.iudgment  of  the  superior  court,  prohibit- 
ing it  from  proceeding  in  a  civil  action, 
of  which  it  has  concurrent  jurisdiction 
with  justices  of  the  peace,  and  be  relieved 
from  any  writ  improperly  issued  so  pro- 
hibiting it.  Simpson  v.  Police  Court,  160 
Cal.  530;  117  Pac.  553. 

Civil  jurisdiction  of  justices  of  the  peace. 
See  note  ante,  §  112. 

Statement  unnecessary  when.  Upon  an 
appeal  from  a  justice's  court,  upon  ques- 
tions of  law,  where  the  alleged  errors  ap- 
pear in  the  copy  of  the  justice's  docket, 
or  in  the  copies  of  papers  sent  up  by  the 
justice,  as  required  by  this  section  and 
§  977,  post,  there  is  no  necessity  for  a 
statement.  Southern  Pacific  E.  R.  Co.  v. 
Superior  Court,  59  Cal.  471. 

Transfer  of  copy  of  docket.  Where  all 
the  papers  in  the  case,  on  an  appeal  from 
a  judgment  of  a  justice's  court,  have  been 
transferred,  except  a  copy  of  the  justice's 
docket,  the  superior  court  has  jurisdiction 


to  order  the  transfer  of  such  copy  of  the 
docket,  under  this  section.  Burgess  v.  Su- 
perior Court,  2  Cal.  Unrep.  741;  13  Pac. 
166. 

Remand  of  cause,  where  appeal  is  upon 
questions  of  law  alone.    See  note  post,  §  9S0. 

Waiver  of  failure  to  serve  or  defects  in  service 
of  process  by  appeal  from  justice's  court  to  court 
where  trial  must  be  de  novo.  See  note  34  L.  R.  A. 
(N.  S.)661. 

CODE  COMMISSIONEKS'  NOTE.  An  appeal 
does  not  lie  from  an  order  made  by  a  justice 
of  the  peace,  directing  property  alleged  to  have 
been  stolen,  and  discovered  and  brought  before 
the  justice  by  a  peace-officer,  by  virtue  of  a 
search-warrant  issued  by  the  justice,  to  be  de- 
livered to  the  owner.  People  v.  Halloway,  26 
Cal.  651.  An  appeal  lies  from  a  judgment  ren- 
dered in  a  justice's  court,  in  an  action  brought 
to  recover  the  penalty  from  an  overcharge,  un- 
der the  provisions  of  the  act  of  the  14th  of 
April,  1863,  concerning  street-railroads  in  this 
state.  Burson  v.  Cowles,  25  Cal.  535.  On 
appeal  from  a  justice's  court,  the  record  not 
showing  that  notice  of  appeal  had  been  served 
on  the  adverse  party,  appellant  may  prove  by 
his  affidavit  that  it  was  in  fact  served.  jNIendioca 
V.  Orr,  16  Cal.  368.  The  general  rule  regu- 
lating appeals,  which  provides  that  notice  may 
be  served  on  the  party  or  his  attorney,  governs 
cases  arising  in  justices'  courts.  Welton  v.  Gari- 
bardi,  6  Cal.  245. 


§  975.  Appeal  on  questions  of  law.  Statement.  When  a  party  appeals 
to  the  superior  court  on  questions  of  law  alone,  he  must,  within  ten  days 
from  the  rendition  of  judgment,  prepare  a  statement  of  the  case  and  file 
the  same  with  the  justice  or  judge.  The  statement  must  contain  the 
grounds  upon  w^hich  the  party  intends  to  rely  on  the  appeal,  and  so  much 
of  the  evidence  as  may  be  necessary  to  explain  the  grounds,  and  no  more. 
Within  ten  days  after  he  receives  notice  that  the  statement  is  filed,  the 
adverse  party,  if  dissatisfied  with  the  same,  may  file  amendments.  The 
proposed  statement  and  amendments  must  be  settled  by  the  justice  or  judge, 
and  if  no  amendment  be  filed,  the  original  statement  stands  as  adopted. 
The  statement  thus  adopted,  or  as  settled  by  the  justice  or  judge,  with  a 
copy  of  the  docket  of  the  justice  or  judge,  and  all  motions  filed  with  him 
by  the  parties  during  the  trial,  and  the  notice  of  appeal,  may  be  used  on 
the  hearing  of  the  appeal  before  the  superior  court. 


Settlement  of  statement  on  appeal.   Ante,  §  650. 

Legislation  §  975.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  625,  as  amended  by 
Stats.  1855,  p.  198),  (1)  substituting  "must" 
for  "shall"  after  "he"  and  after  "statement"; 
(2)  inserting  "or  judge"  after  "justice"  in  every 
instance;  (3)  substituting  (a)  "stands  as"  for 
"shall  be,"  and  (b)  "may"  for  "shall"  before 
"be  used." 


3.  Amended  by  Code  Amdts.  1880,  p.  16, 
substituting   "superior"   for   "countv." 

3.  Repeal  by  Stats.  1901,  p.  175;  unconsti- 
tutional.   See  note  ante,  §  5. 

CODE  COMMISSIONERS'  NOTE.  If  a  new 
trial  is  ordered  by  the  county  court,  it  should 
be  had  in  that  court.  People  v.  Freelon,  8  Cal. 
518. 


§  976.  Appeal  on  questions  of  fact,  or  law  and  fact.  When  a  party 
appeals  to  the  superior  court  on  questions  of  fact,  or  on  questions  of  both  law 
and  fact,  no  statement  need  be  made,  but  the  action  must  be  tried  anew  in 
the  superior  court. 


Conduct  of  trial.    Post,  §  980. 

Legislation  S  976.  1.  Enacted  March  11,  1873 
(based  on  Practice  Act,  §  626,  as  amended  by 
Stats.  1854,  Redding  ed.  p.  70,  Kerr  ed.  p.  99), 
BuV)stituting  "must"   for   "shall." 

3.  Amended  by  Code  Amdts.  1880,  p.  16, 
substituting  "superior"  for  "county,"  in  both  in- 
stances. 


3.  Repeal  by   Stats.   1901,   p.   175;   unconsti- 
tutional.   See  note  ante,  §  5. 

Appeal  on  question  of  law  and  fact.     On 

an  appeal  from  a  judgment  of  a  justice's 
court,  on  questions  of  both  law  and  fact, 
the  superior  court  has  original  jurisdic- 
tion to  try  the  case  without  a  statement^ 


1139 


PROCEDURE — JURISDICTION — TRANSMISSION  OF  PAPERS, 


§977 


if  there  was  any  trial  of  the  issues  in  the 
justice's  court,  with  or  without  jurisdic- 
tion. Arniant;ige  v.  SuiH'rior  Court,  1  Cal. 
Aj.p.  130;  SI  I'ue.  103:5. 

Procedure  and  jurisdiction.  On  an  ap- 
peal on  questions  of  both  law  and  fact, 
where  there  has  been  no  trial  on  issues  of 
fact  in  the  justice's  court,  tlie  superior 
court  must  entertain  and  decide  the  ap- 
peal as  upon  questions  of  law  alone;  and 
the  affirmance  of  a  judgment  of  the  justice 
in  overruling  a  demurrer  to  the  complaint 
is  the  proper  metiiod  of  procedure.  Fa- 
bretti  v.  Superior  Court,  77  Cal.  305;  19 
Pac.  481.  An  appeal  from  a  jlulgment  of 
a  justice's  court,  on  questions  of  both  law 
and  fact,  deprives  the  justice's  court  of 
all  jurisdiction  over  the  case,  and  vacates 
and  sets  aside  the  judgment  therein,  and 
the  case  is  thereafter  in  the  superior  court, 
and  the  rights  of  the  parties  are  to  be 
determined  by  the  action  of  that  court. 
Bullard  v.  McArdle,  98  Cal.  3.55;  35  Am. 
St.  Eep.  176;  33  Pac.  193.  The  superior 
court  has  jurisdiction  to  dismiss  an  action, 
on  motion,  on  an  appeal  taken  on  ques- 
tions of  both  law  and  fact.  Holbrook  v. 
Superior  Court,  106  Cal.  589;  39  Pac.  936. 

Jurisdiction.  Where  the  plaintiff  founds 
his  right  of  action  upon  the  allegation  that 
the  title  to  land  agreed  to  be  purchased 
by  him  is  invalid,  and,  according  to  his 
own  pleadings,  he  seeks  the  return  of  a 
purchase-deposit  upon  the  ground  of  such 
invalidity,  title  to  land  is  necessarily  in- 
volved in  the  action,  and  original  juris- 
diction is  not  in  the  justice's  court,  but 
in  the  superior  court.    Bates  v.  Ferrier,  19 

§  977.  Transmission  of  papers  to  appellate  court.  Upon  receiving  the 
notice  of  appeal,  and  on  payment  of  the  fees  of  the  ju.stice  or  judge,  payable 
on  appeal  and  not  included  in  the  judgment,  and  filing  an  undertaking  as 
required  in  the  next  section,  and  after  settlement  or  adoption  of  statement, 
if  any,  the  justice  or  judge  must,  within  five  days,  transmit  to  the  clerk 
of  the  sitperior  court,  if  the  appeal  be  on  questions  of  law  alone,  a  certified 
copy  of  his  docket,  the  statement  as  admitted  or  as  settled,  the  notice  of 
appeal,  and  the  undertaking  filed ;  or,  if  the  appeal  be  on  questions  of  fact, 
or  both  law  and  fact,  a  certified  copy  of  his  docket,  the  pleadings,  all 
notices,  motions,  and  all  other  papers  filed  in  the  cause,  the  notice  of  ap- 
peal, and  the  undertaking  filed;  and  the  justice  or  judge  may  be  compelled 
by  the  superior  court,  by  an  order  entered  upon  motion,  to  transmit  such 
papers,  and  may  be  fined  for  neglect  or  refusal  to  transmit  the  same.  A 
certified  copy  of  such  order  may  be  served  on  the  justice  or  judge  by  the 
party  or  his  attorney.  In  the  superior  court,  either  party  may  have  the 
benefit  of  all  legal  objections  made  in  the  justice's  or  police  court. 


Cal.  App.  79;  124  Pac.  889.  Where  a  de- 
fendant, sued  in  the  justice's  court  of  the 
wrong  county,  objected  to  the  jurisdiction 
by  a  motion  to  dismiss  the  action,  and  also 
by  special  demurrer,  and  afterwards,  not 
waiving  his  motion  or  demurrer,  in  his  an- 
swer to  the  merits,  pleaded,  in  a  separate 
defense,  facts  showing  that  the  court  had 
no  jurisdiction,  if  all  of  his  objections  to 
the  jurisdiction  were  overruled  and  the 
ease  determined  upon  the  merits,  the  de- 
fendant may  appeal  to  the  superior  court 
upon  questions  both  of  law  and  fact,  and 
he  is  not  bound  to  take  only  the  question 
of  jurisdiction  to  the  superior  court  upon 
a  statement  of  the  case.  Holbrook  v.  Su- 
perior Court,  106  Cal.  589;  39  Pac.  936. 
Where  a  want  of  jurisdiction  of  a  justice's 
court  appears  upon  the  record  transmitted 
from  such  court  to  the  appellate  court,  an 
objection  made  by  the  appellant  to  the  ap- 
pellate court,  trying  the  case  upon  the 
merits,  is  good  if  seasonably  made.  Bates 
V.  Ferrier,  19  Cal.  App.  79;  124  Pac.  889. 

Transfer  of  cases  to  the  superior  court. 
Slc  also  note  ante,  §  83S. 

Jurisdiction  of  appellate  court.  See  also 
note  post,  §  9^0. 

Trial  de  novo  in  the  superior  court.  See 
note  post,  §  9S0. 

Remand  of  cause,  where  appeal  is  upon 
questions  both  of  law  and  fact.  See  note 
post,  §  980. 

CODE   COMMISSIONERS'  NOTE.      No  appeal 

lies  to  tho  i-ouiily  toui't,  upo7i  questions  of  fact, 
from  a  judgment  by  default.  People  v.  El  Dorado 
County   Court,  10  Cal.  19. 


Legislation  S  977.  1.  Enacted  March  11.  1872 
(based  on  rractice  Act,  §  ()27,  as  ameiuled  by 
Stats.  1855,  p.  198),  (1)  inserting  "or  .iudce" 
after  "justice,"  in  each  instance,  (2)  inserting 
after  "next  section"  the  words  "and  after  settle- 
ment or  adoption  of  statement,  if  any,"  (3)  sub- 
stituting "must"  for  "shall"  before  "within,"  and 
(4)   inserting,  at  end,   "or  police"  before   "court.  " 

3.   Amended    by    Code    Amdls.    ISSO,    p.    16, 


substituting   "superior"   for   "county,"   in  each  in- 
stance. 

3.  Amended  by  Stats.  1897.  p.  210.  insert- 
ing (1)  "payable  on  appeal  an<l  not  included  in 
the  judgment"  before  "and  filing,"  (2)  "and  af; 
ter  settlement  or  adoption  of  statement,  if  any," 
after  "section,"  (3)  "all"  before  "other  papers," 
and  (4)  changing  comma  to  semicolon  before 
"and  the  justice." 


§978 


APPEALS  TO  SUPERIOR  COURTS. 


1140 


4.  Amendment  by  Stats.  1901,  p.  175;  un- 
constitutional.    See  note  ante,  §  5. 

Payment  of  costs  and  fees.  The  pay- 
ment of  the  costs  of  the  action  is  one  of 
the  conditions  upon  which  an  appeal  is 
allowed  from  a  judgment  of  a  justice  of 
the  peace.  McDermott  v.  Douglass,  5  Cal. 
89.  A  party  appealing  from  a  judgment 
of  a  justice  of  the  peace  must  pay  all  the 
fees  of  the  justice,  including  those  incurred 
by  the  respondent  as  well  as  by  the  ap- 
pellant on  the  trial,  and  those  on  appeal, 
before  the  justice  can  be  compelled  to  for- 
ward the  papers  to  the  clerk  of  the  su- 
perior court.  Webster  v.  Hanna,  102  Cal. 
177;  36  Pae.  421;  and  see  Bray  v.  Eedman, 
6  Cal.  287.  The  provision  of  this  section, 
in  reference  to  the  payment  of  fees,  refers 
to  the  making  out  of  the  papers;  the  pay- 
ment or  the  tender  of  the  fees  does  not 
strictly  constitute  a  condition  of  appeal, 
but  a  condition  precedent  to  sending  up 
the  papers,  and  this  condition  may  be 
waived  by  the  justice,  and  the  fees  paid 
at  any  time,  so  as  to  bring  the  case  up 
before  the  superior  court  within  the  period 
limited  by  the  rules  of  that  court.  People 
V.  Harris,  9  Cal.  571. 

Transmission  of  papers  required  when. 
No  statement  is  required  on  an  appeal 
taken  on  questions  of  both  law  and  fact, 
but  the  justice  certifies  and  transmits  all 
the  papers  in  the  cause,  including  a  copy 
of  his  docket,  to  the  superior  court,  and 
the  action  is  tried  anew  in  that  court. 
Nail  V.  Superior  Court,  11  Cal.  App.  27;  103 
Pac.  902. 


Right  to  compel.  It  is  the  duty  of  the 
justice,  under  this  section,  to  send  up  the 
notice  of  appeal  received  by  him;  and  the 
action  of  the  superior  court  in  refusing 
to  allow  an  appellant  the  opportunity  of 
moving  to  compel  the  justice  to  send  it  up, 
by  peremptorily  dismissing  the  appeal,  is 
error.     Sherman  v.  Eolberg,  9  Cal.  17. 

Return  of  papers  to  justice.  When  the 
papers  upon  an  appeal  from  a  justice's 
court  have  been  properly  filed  in  the  su- 
perior court,  the  justice  has  no  power  to 
recall  them  for  any  purpose,  nor  has  the 
superior  court  any  authority  to  cause  them 
to  be  returned  to  the  justice.  Budd  v. 
Superior  Court,  14  Cal.  App.  256;  111  Pae. 
628. 

CODE  COMMISSIONERS'  NOTE.  1.  Pay- 
ment of  costs.  One  of  the  conditions  upon 
which  an  appeal  is  allowed,  is  payment  of  costs. 
McUermott  v.  Douglass,  5  Cal.  "89.  The  fees 
must  be  paid,  or  tendered  unconditionally.  Peo- 
ple V.  Harris,  9  Cal.  571.  But  the  justice  may 
waive  payment,  and  if  he  sends  up  the  record 
without  payment,  it  is  no  ground  for  dismissal. 
Bray  v.  Redman,  6  Cal.  287. 

2.  Generally.  If  the  justice  fails  to  send  up 
the  notice  of  appeal,  it  is  error  to  refuse  to 
allow  appellant  the  opportunity  of  moving  to 
compel  the  justice  to  send  it  up,  by  peremptorily 
dismissing  the  appeal.  Sherman  v.  Rolberg,  9 
Cal.  17.  The  omission  of  the  words  "to  pay 
to"  will  not  invalidate  an  appeal  bond;  if  it 
did,  leave  should  be  granted  to  file  a  new  bond. 
Billings  V.  Roadhouse,  5  Cal.  71.  An  appeal 
is  made  by  filing  and  serving  the  notice  of 
appeal.  Both  must  be  done  to  complete  the 
appeal.  A  failure  to  notify  the  adverse  party 
is  fatal.  Whipley  v.  Mills,  9  Cal.  641.  See 
generally,  People  v.  Freelon,  8  Cal.  517. 


§978.  Undertaking  on  appeal.  An  appeal  from  a  justice's  or  police 
court  is  not  effectual  for  any  purpose,  unless  an  undertaking  be  filed  with 
two  or  more  sureties  in  the  sum  of  one  hundred  dollars  for  the  payment  of 
the  costs  on  the  appeal;  or,  if  a  stay  of  proceedings  be  claimed,  in  a  sum 
equal  to  twice  the  amount  of  the  judgment,  including  costs,  Avhen  the  judg- 
ment is  for  the  payment  of  money;  or  twice  the  value  of  property,  includ- 
ing costs,  when  the  judgment  is  for  the  recovery  of  specific  personal  prop- 
erty, and  must  be  conditioned,  when  the  action  is  for  the  recovery  of  money, 
that  the  appellant  will  pay  the  amount  of  the  judgment  appealed  from,  and 
all  costs,  if  the  appeal  be  withdrawn  or  dismissed,  or  the  amount  of  any 
judgment  and  all  costs  that  may  be  recovered  against  him  in  the  action  in 
the  superior  court.  "When  the  action  is  for  the  recovery  of  or  to  enforce 
or  foreclose  a  lien  on  specific  personal  property,  the  undertaking  must  be 
conditioned  that  the  appellant  will  pay  the  judgment  and  costs  appealed 
from,  and  obey  the  order  of  the  court  made  therein,  if  the  appeal  be  with- 
drawn or  dismissed,  or  any  judgment  and  costs  that  may  be  recovered 
against  him  in  said  action  in  the  superior  court,  and  Avill  obey  any  order 
made  by  the  court  therein.  When  the  judgment  appealed  from  directs  the 
delivery  of  possession  of  real  i)roperty,  the  execution  of  the  same  cannot  be 
stayed  unless  a  written  undertaking  be  executed  on  the  part  of  the  appel- 
lant, with  two  or  more  sureties,  to  the  effect  that  during  the  possession  of 
such  property  by  the  appellant,  he  will  not  commit,  or  suffer  to  be  com- 


1141 


UNDERTAKING DEPOSIT  IN  LIEU  OF. 


§978 


mitted,  any  waste  thereon,  and  that  if  the  appeal  be  dismissed  or  with- 
drawn, or  the  judgmi'iit  aflirnied,  or  jud<,Mnent  be  recovered  a<rainst  him  in 
the  action  in  the  superior  court,  he  will  pay  the  value  of  the  use  and  oc- 
cupation of  the  property  from  the  time  of  the  appeal  until  the  delivery  of 
possession  thereof;  or  that  he  will  pay  any  judgment  and  costs  that  may 
be  recovered  against  him  in  said  action  in  the  sui)erior  court,  not  exceed- 
ing a  sum  to  be  fixed  by  the  justice  of  the  court  from  which  the  appeal  is 
taken,  and  which  sum  must  be  specified  in  the  undertaking.  A  deposit  of 
the  amount  of  the  judgment,  including  all  costs  appealed  from  or  of  the 
value  of  the  property,  including  all  costs  in  actions  for  the  recovery  of 
specific  personal  property,  with  the  justice  or  judge,  is  equivalent  to  the 
filing  of  the  undertaking,  and  in  such  cases,  the  justice  or  judge  must  trans- 
mit the  money  to  the  clerk  of  the  superior  court,  to  be  by  him  paid  out  on 
the  order  of  the  court. 

effectual  appeal  is  taken.  McConky  v. 
Superior  Court,  56  Cal.  83.  The  provision 
of  this  section,  that  an  appeal  is  not 
effectual  for  any  purpose  unless  an  under- 
taking is  filed,  implies  that  when  the  un- 
dertaking is  filed  the  appeal  is  effectual. 
Moffat  V.  Greenwalt,  90  Cal.  368;  27  Pac. 
296.  The  amendment  to  this  section  in 
1880  did  not  repeal,  by  implication,  §  926, 
ante.  Swem  v.  Monroe,  148  Cal.  741;  83 
Pac.  1074.  This  section  adds  a  further 
condition  to  the  perfecting  of  the  appeal, 
and  all  the  steps  required  to  perfect  it 
must  be  completed  within  thirty  days. 
Regan  v.  Superior  Court,  14  Cal.  App.  572; 
114  Pac.  72. 

Condition  of  undertaking.  The  condi- 
tiou  of  the  bond  is  not  affected  by  the 
point  raised  on  appeal.  Nolan  v.  Fidelity 
etc.  Co.,  2  Cal.  App.  1;  82  Pac.  1119. 

Approval  of  undertaking.  Where  a  jus- 
tice of  the  peace  fails  to  reject  an  appeal 
bond  promptly,  his  subsequent  disapproval 
of  it  is  ineffectual,  and  the  appellate  court 
will  hold  that  the  bond  was  approved. 
People  V.  Harris,  9  Cal.  571. 

Deposit  in  lieu  of  undertaking.  This 
section  does  not  provide  for  a  deposit  in 
lieu  of  the  undertaking  on  appeal:  such  a 
provision  is  made  by  §  926,  ante.  Pacific 
Window  Glass  Co.  v.  Smith,  8  Cal.  App. 
762;  97  Pac.  898.  An  appeal  from  a  judg- 
ment of  a  justice's  court  is  perfected  by 
the  deposit,  with  the  justice,  of  money  in 
lieu  of  the  undertaking  on  appeal,  under 
§  926,  ante,  and  such  money  need  not  be 
transmitted  to  the  superior  court  as  pro- 
vided by  this  section.  Laws  v.  Troutt,  147 
Cal.  172;  81  Pac.  401.  A  deposit  of  money 
may  be  made  in  lieu  of  an  undertaking 
on  appeal;  and  it  cannot  be  withdrawn 
after  the  statutory  time  for  filing  an  un- 
dertaking, and  should  be  transmitted  to 
the  clerk  of  the  superior  court  as  security 
on  the  appeal.  Mullen  v.  Hunt,  67  Cal. 
69;  7  Pac.  121.  A  deposit,  with  the  jus- 
tice, of  the  requisite  amount  of  money, 
gives  the  superior  court  jurisdictfon  of  the 


Undertaking  on  appeal.    Compare  ante,  §  941. 
Sureties. 

1.  Justification.    Ante,  §  948. 

2.  Qualification.    Post,  §  1057. 

Legislation  g  978.  1.  Enacted  March  11,  18T3, 
tased  on  Practice  Act,  §  628,  as  amended  by 
Stats.  1860,  p.  305,  which  had  a  final  sentence 
(see  §  978a,  infra),  reading,  "The  adverse  party 
may,  however,  except  to  the  sufficiency  of  the 
sureties  within  five  days  after  the  filing  of  the 
undertaking,  and  unless  they  or  other  sureties 
justify  before  the  justice  before  whom  the  appeal 
is  taken,  within  five  days  thereafter,  upon  notice 
to  the  adverse  party,  to  the  amounts  stated  in  their 
affidavits,  the  appeal  shall  be  regarded  as  if  no 
such  undertaking  had  been  given."  The  changes 
made  in  adopting  the  s?ction  in  1872  consisted 
in  (1)  substituting  (a)  "or  police  court  is  not" 
for  "court  shall  not  be,"  and  (b)  "must"  for 
"shall,"  in  each  instance;  (2)  omitting  (a) 
"said"  before  "action  in  the  county  court."  and 
(b)  the  first  part  of  the  sentence  now  beginning 
"A  deposit,"  which  read,  "The  undertaking  shall 
be  accompanied  by  the  affidavits  of  the  sureties 
that  they  are  residents  of  the  county,  and  are 
each  worth  the  amount  specified  in  the  under- 
taking, over  and  above  all  their  just  debts  and 
liabilities,  e.xclusive  of  property  exempt  from  exe- 
cution; or  the  bond  shall  be  executed  by  a  suffi- 
cient number  of  sureties  who  can  justify,  in  the 
aggregate,  to  an  amount  equal  to  double  the 
amount  specified  in  the  bond,  or";  (3)  substitut- 
ing "or  judge  is,"  after  "justice,"  for  "an-d  such 
deposit  shall  be";  (4)  inserting  "or  judge"  after 
"justice,"  in  each  instance;  (5)  omitting  "in  this 
act  mentioned"  before  "and  in  such  cases"  ;  and 
(6)  omitting  "however"  before  "except,"  in  the 
final   sentence,   quoted   supra. 

3.  Amended  by  Code  Amdts.  1880.  p.  16.  (1) 
substituting  "superior"  for  "county,"  in  each  in- 
stance; (2)  in  sentence  beginning  "When  the 
action,"  inserting  "or  to  enforce  or  foreclose  a 
lien  on"  before  "specific  personal";  (3)  adding 
the  sentence  beginning  "When  the  judgment" ; 
(4)  in  final  sentence,  quoted  supra,  omitting  "be- 
fore whom  the  appeal  is  taken"  Ijefore  "within 
five   days." 

3.  Amendment  by  Stats.  1901,  p.  175;  un- 
constitutional.    See  note  ante,  §  5. 

4.  Amended  by  Stats.  1909,  p.  1064.  (1)  in 
first  sentence,  omitting  "the"  after  "value  of," 
and  (2)  omitting  the  final  sentence,  quoted  from 
Practice  Act,  supra. 

Construction  of  section.  The  word  "or," 
in  the  first  sentence  of  this  section,  join- 
ing the  clauses  referring,  respectively,  to 
the  undertaking  for  costs  on  appeal  and 
the  undertaking  for  a  stay  of  proceedings, 
manifestly  must  be  construed  as  moaning 
"and";  and  the  former  undertaking  is 
therefore  a  prerequisite,  without  which  no 


978a 


APPEALS   TO    SUPERIOR   COURTS. 


1142 


appeal  (Pacific  Window  Glass  Co.  v.  Smith, 
8  Cal.  App.  762;  97  Pac.  898),  although 
the  sum  deposited  greatly  exceeds  the 
amount  required  (Thomas  v.  Hawkins,  12 
Cal.  App.  327;  107  Pac.  578);  but  the  su- 
perior court  has  no  jurisdiction  if  the 
deposit  made  is  in  a  sum  less  than  one  hun- 
dred dollars.  Swem  v.  Monroe,  148  Cal. 
741;  S3  Pac.  1074. 

Liability  of  sureties.  The  liability  of 
the  sureties  upon  an  undertaking  to  stay 
proceedings,  pending  an  appeal  from  the 
judgment  of  a  justice's  court,  is  not  af- 
fected by  the  fact  that  there  was  a  mis- 
nomer of  the  defendant  in  the  body  of  the 
judgment,  which  was  amended  by  the  jus- 
tice, pending  the  appeal,  where  such  un- 
dertaking correctly  describes  the  judgment. 
Adler  v.  Staude,  136  Cal.  182;  68  Pac.  599. 

Action  upon  undertaking.  The  assign- 
ment of  a  judgment  only,  without  the  as- 
signment of  the  undertaking  on  appeal 
therefrom,  does  not  pass  to  the  assignee 
any  right  of  action  upon  the  undertaking 
on  appeal,  whether  the  judgment  was  as- 
signed pending  the  appeal  or  after  it  had 
become  final.  Chilstrom  v.  Eppinger,  127 
Cal.  326;  78  Am.  St.  Eep.  46;  59  Pac.  696. 
The  failure  to  file  the  undertaking  on  ap- 
peal from  a  judgment  of  a  justice  of  the 
peace  within  thirty  days  after  the  rendi- 
tion of  the  judgment  is  good  ground  for 
dismissing  the  appeal,  but  will  not  defeat 
a  recovery  on  a  stay  bond  given  at  any 
time  before  the  dismissal  of  the  appeal. 
Nolan  V.  Fidelity  etc.  Co.,  2  Cal.  App.  1; 
82  Pac.  1119. 

Allegations  of  complaint.  The  under- 
taking on  appeal  from  a  justice's  court 
to  the  superior  court  to  stay  execution  is 
an  indepjendent  and  absolute  contract  on 
the  part  of  the  sureties,  and  on  dismissal 
of  the  appeal  they  become  liable  to  pay 
the  amount  of  the  judgment  and  all  costs; 
and  to  discharge  themselves  from  such 
liability,  they  must  show  that  the  judg- 
ment has  been  satisfied,  either  by  a  return 
of  the  property,  or  by  payment  of  the 
amount  of  the  judgment  and  costs;  and  in 
an  action  against  the  sureties  on  such  un- 
dertaking, it  is  not  necessary  to  the  suffi- 
ciency of  the  complaint  to  allege  the 
issuance  and  return  of  the  execution  un- 
satisfied,   or   that    notice   of   the   dismissal 

§  978a.  Filing  of  undertaking.  Exception  to  and  justification  of  sure- 
ties. The  undertaking  on  appeal  must  be  filed  within  five  days  after  the 
filing  of  the  notice  of  appeal  and  notice  of  the  filing  of  the  undertaking 
must  be  given  to  the  respondent.  The  adverse  party  may  except  to  the 
sufficiency  of  the  sureties  within  five  days  after  the  filing  of  the  undertak- 
ing, and  unless  they  or  other  sureties  justify  before  the  justice  or  judge 
within  five  days  thereafter,  upon  notice  to  the  adverse  party,  to  the  amonnts 
stated  in  their  affidavits,  the  appeal  must  be  regarded  as  if  no  such  under- 
taking had  been  given. 


of  the  appeal  was  given,  or  that  demand 
was  made  prior  to  the  commencement  of 
the  action,  or  that  a  delivery  of  the  prop- 
erty could  not  be  had,  or  that  any  order 
was  made  by  the  superior  court  which  the 
appellant  failed  or  refused  to  obey.  Pieper 
V.  Peers,  98  Cal.  42;  32  Pac.  700.  An  alle- 
gation, in  an  action  on  a  stay  bond  given 
on  an  appeal  from  a  judgment  of  a  justice's 
court,  that  "judgment  was  rendered,"  etc., 
instead  of  "judgment  was  duly  made  and 
given,"  etc.,  is  sufficient.  Nolan  v.  Fidelity 
etc.  Co.,  2  Cal.  App.  1;  82  Pac.  1119. 

Undertaking  for  costs.  An  appeal  is 
perfected,  or  made  effectual,  by  filing  an 
undertaking  "for  the  payment  of  the  costs 
on  appeal."  Jeffries  Co.  v.  Superior  Courts 
13  Cal.  App.  193;  109  Pac.  147.  An  un- 
dertaking on  appeal  from  a  money  judg- 
ment, in  a  greater  sum  than  one  hundred 
dollars,  and  conditioned  for  the  payment 
of  the  costs  on  appeal,  is  sufficient  to  con- 
fer jurisdiction  on  the  superior  court, 
though  it  also  purports  to  be  given  to  stay 
execution.  Edwards  v.  Superior  Court,  15& 
Cal.  710;  115  Pac.  649.  The  expression, 
"all  costs,"  in  an  undertaking  conditioned 
to  pay  the  amount  of  the  judgment  and 
all  costs,  etc.,  includes  the  costs  on  appeal. 
Jones  V.  Superior  Court,  151  Cal.  589;  91 
Pac.  505.  The  superior  court  has  no  juris- 
diction to  entertain  an,  appeal,  where  no- 
bond  for  costs,  or  deposit  in  lieu  thereof, 
was  given.  Stimpson  Computing  Scale  Co. 
V.  Superior  Court,  12  Cal.  App.  536;  107 
Pac.  1013;  Thomas  v.  Hawkins,  12  CaL 
App.  327;  107  Pac.  578.  A  bond  on  attach- 
ment, given  months  prior  to  the  appeal, 
though  undertaking  to  pay  damages  and 
costs  awarded  on  appeal,  is  not  a  good  un- 
dertaking on  appeal.  Stimpson  Computing 
Scale  Co.  v.  Superior  Court,  12  Cal.  App. 
536;  107  Pac.  1013. 

Time  for  filing  undertaking.  See  note 
post,  §  978a. 

CODE  COMMISSIONEES'  NOTE.  When  th& 
appeal  bond  is  presented,  the  justice  must  act 
promptly ;  if  he  receives  the  bond  without  ob- 
jection, it  will  be  too  late  to  disapprove  it 
next  day.  People  v.  Harris,  9  Cal.  571.  If 
the  sureties  are  excepted  to,  and  appear  before 
the  justice,  and  the  party  then  states  that  he 
knows  them  to  be  good,  and  that  he  excepted 
to  them  for  the  sole  reason  that  his  attorney 
told  him  to  do  so,  he  waives  their  justification. 
Blair  v.  Hamilton,  32  Cal.  50. 


1143 


FILING  UNDERTAKIXG JUSTIFICATION  OF  SURETIES, 


§97Sa 


Legislation  g  978a.  Added  by  Stats.  1909, 
p.    1005.    Compare  ante,   LeKi.slation  §  978,   par.  1. 

Construction  of  section.  This  srction  is 
not  to  be  construed  as  if  the  word  "imme- 
diately" were  added  to  the  end  of  the  first 
sentence  thereof.  Golden  Gate  Tile  Co.  v. 
Sujicrior  Court,  159  Cal.  474;  114  Pac.  978. 

Time  of  filing  undertaking.  The  under- 
taking must  be  filed  within  the  j)reseribed 
time  from  the  rendition  of  the  judgment; 
to  give  jurisdiction.  Lane  v.  Superior 
Court,  5  Cal.  App.  7(52;  91  Pac.  405;  Mc- 
Keen  v.  Naughton,  88  Cal.  4G2;  2G  Pac. 
354.  The  time  for  filing  the  undertaking 
does  not  begin  to  run  at  the  time  of  the 
rendition  of  the  judgment:  it  begins  to 
run  at  the  time  of  the  filing  of  the  notice 
of  appeal,  and  continues  for  five  days  after 
the  filing  of  such  notice.  Eigby  v.  Superior 
Court,  162  Cal.  334;  122  Pac.  958.  The 
filing  and  service  of  the  notice  of  appeal 
is,  in  legal  effect,  a  notice  that,  under  the 
law,  the  appellant  must  file  his  undertaking 
within  five  days  thereafter,  to  make  his 
appeal  prima  facie  effective.  Jeffries  Co. 
V.  Superior  Court,  13  Cal.  App.  193;  109 
Pac.  147.  The  undertaking  must  be  filed 
within  five  days  after  the  perfecting  of 
the  appeal.  Stimpsou  Computing  Scale  Co. 
V.  Superior  Court,  12  Cal.  App.  536;  107 
Pac.  1013.  As  the  notice  of  appeal,  under 
§  974,  ante,  may  be  filed  at  any  time 
within  thirty  days  after  the  rendition  of 
the  judgment  appealed  from,  it  necessarily 
follows  that  the  time  for  filing  the  un- 
dertaking does  not  stop  with  the  expira- 
tion of  such  thirty  days,  but  may,  in  some 
cases,  be  filed  as  much  as  five  days  after 
the  thirtv-dav  period  has  elapsed.  Rigby 
V.  Superior  Court,  162  Cal.  334;  122  Pac. 
95S. 

Filing  of  undertaking.  The  filing  of  a 
written  undertaking  on  appeal  from  a 
judgment  of  a  justice's  court  is  a  juris- 
dictional prerequisite  to  the  appeal.  Mc- 
Keen  v.  Naughton,  88  Cal.  462;  26  Pac.  354. 
Under  this  section,  it  is  not  required  that 
the  undertaking  on  appeal  shall  he  filed  be- 
fore or  at  the  time  of  service  and  filing 
of  the  notice  of  appeal.  Coker  v.  Superior 
Court,  58  Cal.  177.  Where  a  notice  of 
appeal  from  a  judgment  of  a  justice's  court 
was  filed  one  day  after  the  service  thereof, 
and  the  undertaking  on  appeal  was  filed 
four  days  after  the  filing  of  the  notice, 
and  these  several  acts  were  done  within 
the  time  limited  by  statute,  the  appeal  was 
regularly  taken;  the  mere  order  in  which 
the  acts  are  done  is  not  material.  Hall  v. 
Superior  Court,  68  Cal.  24;  2  Pac.  509. 
Where  the  undertaking  on  appeal  was  de- 
livered and  left  at  the  office  of  the  justice 
of  the  peace  within  the  statutory  period 
of  thirty  days,  but  was  not  received  nor 
marked  "Filed"  by  him  until  two  days 
after  that  time,  the  appeal  will  not  be  dis- 
missed. Perkins  v.  Superior  Court,  4  Cal. 
Unrep.  788;37Pac.  780. 


Notice  of  filing.  Notice  of  the  filing  of 
the  undertaking  must  be  given.  Stimpson 
Computing  Scale  Co.  v.  Superior  Court.  12 
Cal.  App.  536;  107  Pac.  1013.  It  is  not  a 
step  in  the  perfecting  of  the  appeal,  but 
merely  a  part  of  the  collateral  proceeding 
to  justify  (Jeffries  Co.  v.  Superior  Court, 
13  Cal.  App.  193;  109  Pac.  147);  nor  is  it 
essential  to  the  jurisdiction  of  the  superior 
court,  of  the  apjieal  (Rigby  v.  Siij)erior 
Court,  162  Cal.  334;  122  Pac.  958;  Widrin 
V.  Sujierior  Court,  17  Cal.  Ai)p.  93;  118  Pac. 
550;  Blake  v.  Superior  Court,  17  Cal.  App. 
52;  118  Pac.  448;  Jeffries  v.  Superior  Court, 
13  Cal.  App.  193;  109  Pac.  147;  but  see 
Green  v.  Rogers,  18  Cal.  App.  572;  123  Pac. 
974);  and  the  omission  to  give  notice  is  a 
mere  irregularity,  as  no  time  is  fixed  within 
which  the  notice  is  to  be  given,  and  no 
penalty  is  attached  to  the  failure  to  give 
it.  Blake  v.  Superior  Court,  17  Cal.  App. 
51;  118  Pnc.  448;  Jeffries  v.  Superior 
Court,  13  Cal.  App.  193;  109  Pac.  147. 

Result  of  absence  of  undertaking.  The 
superior  court  cannot,  in  the  absence  of 
any  undertaking  on  appeal,  take  a  deposit 
in  lieu  of  a  bond;  nor  can  it  take  a  new 
bond.  Stimpson  Computing  Scale  Co.  v. 
Superior  Court,  12  Cal.  App.  536;  107  Pac. 
1013;  Bergevin  v.  Wood,  11  Cal.  App.  643; 
105  Pac.  935. 

Exception  to  sureties.  Exception  to  the 
sufficiency  of  the  sureties  upon  the  under- 
taking on  appeal  must  be  made  within  five 
days  after  the  filing  of  the  undertaking, 
without  reference  to  any  notice  of  its  fil- 
ing. Jeffries  Co.  v.  Superior  Court,  13  Cal. 
App.  193;  109  Pac.  147;  Widrin  v.  Superior 
Court,  17  Cal.  App.  93;  118  Pac.  550.  A 
party  excepting  to  the  sufficiency  of  the 
sureties  must  file  his  notice  of  exception 
with  the  justice:  no  such  exception  is  com- 
plete until  such  notice  is  filed;  and  where 
such  notice  has  been  filed,  the  justice 
should  hold  the  papers  for  a  further  period 
of  five  days  to  allow  justification  to  be 
made.  Budd  v.  Superior  Court,  14  Cal. 
Apj).  256;  111  Pac.  628.  The  objection  to 
the  sufficiency  of  the  sureties  may  be 
waived,  but  such  waiver  must  be  made 
within  the  five  days.  Crowley  Launch  etc. 
Co.  V.  Superior  Court,  10  Cal.  App.  342;  101 
Pac.  935. 

Filing  exception  to  sureties.  The  filing 
of  an  cxcej)tion  to  the  sureties,  with  a  jus- 
tice of  the  peace,  after  the  appeal  is  taken, 
is  not  suflEicient  to  require  the  sureties  to 
justify,  since  such  exception  must  be 
served  on  the  appellant.  Reynolds  v. 
County  Court,  47  Cal.  6i)4. 

Notice  of  justification.  Notice  for  the 
justification  of  sureties,  at  a  time  more 
than  five  days  after  the  service  of  the 
notice  of  exception  to  them,  is  ineffectual 
to  confer  jurisdiction  of  the  appeal  upon 
the  superior  court.  Randall  v.  Superior 
Court,  19  Cal.  App.  184;  124  Pac.  1058. 


979 


APPEALS   TO    SUPERIOR    COURTS. 


1144 


Justification.  The  adverse  party  is 
allowed  five  days  after  the  filing  of  no- 
tice excepting  to  the  sufficiency  of  sure- 
ties, within  which  to  submit  his  sureties 
for  the  purpose  of  having  them  justify; 
and  a  justification  within  five  days  after 
the  filing  of  the  notice,  though  more  than 
seven  days  after  the  service  thereof,  is  in 
time.  Budd  v.  Superior  Court,  14  Cal.  App. 
256;  111  Pae.  62S.  After  a  case  in  the 
justices'  court  of  the  city  and  county  of 
San  Francisco  has  been  assigned  for  trial 
to  a  particular  justice  thereof,  the  sureties 
on  an  undertaking,  after  due  notice  to  the 
adverse  party,  may  justify  before  any 
other  justice  of  the  same  court.  Werner 
V.  Superior  Court,  161  Cal.  209;  118  Pae. 
709.  The  qualification  by  the  sureties 
upon  an  undertaking  for  costs  on  appeal 
is,  in  the  absence  of  exception,  a  full  and 
complete  justification.  .Jeffries  Co.  v.  Su- 
perior Court,  13  Cal.  App.  193;  109  Pae. 
147.  The  justification  of  sureties  on  un- 
dertakings may  be  waived  by  the  failure 
of  the  party  excepting  to  appear  at  the 
time  set  for  justification.  Budd  v.  Superior 
Court,  14  Cal.  App.  2.56;  111  Pae.  628; 
Blair  v.  Hamilton,  32  Cal.  49.  A  motion  to 
dismiss  an  appeal  from  a  justice's  court 
to  the  superior  court,  because  of  the  fail- 
ure of  sureties  to  justify,  is  properly 
denied,  where  the  excepting  party  was  not 
present  at  the  time  fixed  for  justification. 
Budd  V.  Superior  Court,  14  Cal.  App.  256; 
111  Pae.  628.  The  justification  of  sureties 
after  notice  is  not  a  necessary  step  in 
taking  an  appeal.  .Jeffries  Co.  v.  Superior 
Court,  13  Cal.  App.  193;  109  Pae.  147. 

Effect  of  failure  to  justify.  Where  the 
sureties  fail  to  justify  in  time,  after  they 
have  been  excepted  to,  the  appeal  must 
be  regarded  as  if  no  undertaking  had  been 
given.  Crowley  Launch  etc.  Co.  v.  Superior 
Court,  10  Cal.  App.  342;  101  Pae.  935; 
Lane  v.  Superior  Court,  5  Cal.  App.  762; 
91  Pae.  405;  McCracken  v.  Superior  Court, 
86  Cal.  74;  24  Pae.  845.  The  provision 
of  this  section,  that  unless  the  sureties 
justify  within  five  days  after  an  excep- 
tion has  been  taken  to  their  sufficiency, 
the  appeal  must  be  regarded  as  if  no  un- 
dertaking had  been  given,  is  to  be  con- 
strued, not  as  having  the  effect,  ipso 
facto,  of  vacating  an  appeal  already  com- 
pleted, but  as  giving  to  the  respondent  the 
right  to  move  for  its  dismissal  on  the 
ground  that  since  it  was  taken  it  had  be- 
come ineffectual.  Moffat  v.  Greenwalt,  90 
Cal.  368;  27  Pae.  296.  The  sureties  on  an 
undertaking  on  appeal  from  a  judgment 
of  a  justice's  court  are  liable  on  their 
undertaking   on    the    dismissal   of   the    ap- 

§  979.  Stay  of  proceedings  on  filing  undertaking.  If  an  execution  be 
issued  on  the  filing  of  the  undertaking  staying  proceedings,  the  justice  or 
judge  must,  by  order,  direct  the  officer  to  stay  all  proceedings  on  the  same. 
Such  officer  must,  upon  payment  of  his  fees  for  services  rendered  on  the 


peal,  although  they  failed  to  justify.  Mof- 
fat V.  Greenwalt,  90  Cal.  368;  27  Pae.  296. 

New  undertaking.  The  superior  court 
has  power  to  authorize  the  appellant  to 
file  a  new  undertaking  on  appeal,  in  lieu 
of  an  undertaking  insufficient  in  form. 
Gray  v.  Superior  Court,  61  Cal.  337. 
Where  the  sufficiency  of  the  sureties  upon 
an  undertaking  on  appeal  from  a  justice's 
court  is  excepted  to,  the  appeal  cannot  be 
perfected  by  filing  a  new  undertaking, 
without  notice  to  the  adverse  party.  Wood 
V.  Superior  Court,  67  Cal.  115;  7  Pae.  200; 
Herting  v.  Superior  Court,  10  Pae.  514. 
The  signing  of  an  undertaking  on  appeal, 
by  a  new  surety,  in  place  of  one  who  fails 
to  justify,  does  not  render  the  undertak- 
ing sufficient,  where  he  is  not  mentioned 
in  the  body  of  the  undertaking,  nor  other- 
wise made  a  party  thereto;  and  such  de- 
fective undertaking  cannot  be  made  effect- 
ive by  the  action  of  the  superior  court 
in  allowing  the  appellant  to  file  a  new 
undertaking.  Bennett  v.  Superior  Court, 
113  Cal.  440;  45  Pae.  808.  A  defective  un- 
dertaking on  appeal  may  be  cured  by  the 
filing,  in  the  superior  court,  of  a  sufficient 
undertaking,  in  pursuance  of  leave  first 
obtained  from  that  court.  Werner  v.  Su- 
perior Court,  161  Cal.  209;  118  Pae.  709. 
A  superior  court  has  no  jurisdiction  to 
allow  a  new  bond  to  be  filed  after  it  has 
dismissed  an  appeal.  Bergevin  v.  Wood, 
11  Cal.  App.  643;  105  Pae.  935. 

New  undertaking  on  appeal  to  supreme 
court.    See  note  ante,  §  954. 

Jurisdiction  to  order  justification.  An 
order  requiring  sureties  to  justify  before 
the  superior  judge,  where  the  court  com- 
missioner before  whom  they  had  justified 
had  not  taken  the  oath  of  office,  is  within 
the  jurisdiction  of  the  superior  court. 
Gray  v.  Superior  Court,  61  Cal.  337.  The 
superior  court  has  no  power  to  extend  the 
time  within  which  the  sureties  on  an  un- 
dertaking on  appeal  from  a  judgment  of 
a  justice's  court  may  justify;  and  §  1054, 
post,  has  no  application  in  such  case.  Mc- 
Cracken V.  Superior  Court,  86  Cal.  74;  24 
Pae.  845. 

Waiver  of  justification.  The  failure  of 
the  respondent  to  appear  at  the  time  set 
for  the  justification  of  sureties,  to  whom 
he  has  excepted,  is  a  waiver  of  such  jus- 
tification. Bank  of  Escondido  v.  Superior 
Court,  106  Cal.  43;  39  Pae.  211. 

Justification  of  new  sureties.  The  su- 
perior court,  where  a  new  undertaking  is 
given  on  appeal  thereto,  may  order  the 
sureties  to  appear  and  justify  before  it. 
Gray  v.  Superior  Court,  61  Cal.  337. 


1145 


STAY — POWER  OX   APPEAL — J  LKISDICTION. 


§980 


execution,  thereupon  relinquish  all  property  levied  upon  and  deliver  the 
same  to  the  judgment  debtor,  together  with  all  moneys  collected  from  sales 
or  otherwise.  If  his  fees  be  not  paid,  the  officer  may  retain  so  much  of  the 
property  or  proceeds  thereof  as  may  be  necessary  to  pay  the  same. 


Legislation  S  979.  1.  En.ioted  March  11,  1872 
(biist'd  on  Practice  Act,  §G29).  (1)  omitting 
"nil"  before  "proceedings, "  (2)  insertint;  "or 
judge"  after  "justice,"  and  (3)  substitiiting 
"must"  for  "shall"  after  "officer." 

2.  Repealed  by  Code  Amdts.   1880.   p.   (i4,  in 


repealinK  original  code  chapters  IV  and  V,  q.v., 
I.egishition    T\'.    V.   pnKt. 

3.    Kc  cnaclrd   by  Code   Anidls.   18SO.   p.   17. 

CODE  COMMISSIONERS'  NOTE.  An  order 
staying  execution  cannot  be  reviewed  on  cer- 
tiorari.   Coulter  V.   Stark,  7  Cal.  244. 


§  980.  Powers  of  superior  court  on  appeal.  Upon  an  appeal  heard  upon 
a  statement  of  the  case,  the  su])crior  court  may  review  all  orders  affecting 
the  judgment  appealed  from,  and  may  set  aside,  or  confirm,  or  modify  any 
or  all  of  the  proceedings  suliseciuent  to  and  dependent  upon  such  judgment, 
and  may,  if  necessary  or  proper,  order  a  new  trial.  AVhen  the  action  is 
tried  anew,  on  appeal,  the  trial  must  be  conducted  in  all  respects  as  other 
trials  in  the  superior  court.  The  provisions  of  this  code  as  to  changing  the 
place  of  trial,  and  all  the  provisions  as  to  trials  in  the  superior  court,  are 
applicable  to  trials  on  appeal  in  the  superior  court.  For  a  failure  to  prose- 
cute an  appeal,  or  unnecessary  delay  in  bringing  it  to  a  hearing,  the  su- 
perior court,  after  notice,  may  order  the  appeal  to  be  dismissed,  with  costs; 
and  if  it  appear  to  such  court  that  the  appeal  was  made  solely  for  delay,  it 
may  add  to  the  costs  such  damages  as  may  be  just,  not  exceeding  twenty- 
five  per  cent  of  the  judgment  appealed  from.  Judgments  rendered  in  the 
superior  court  on  appeal  shall  have  the  same  force  and  effect  and  may  be 
enforced  in  the  same  manner  as  judgments  in  actions  commenced  in  the 
superior  court. 

provision  of  this  section,  purporting  to  au- 
thorize such  a  transfer,  is  in  conflict  with 
article  VI,  §  9,  of  the  constitution.  Luco 
V.  Superior  Court,  71  Cal.  .5.55;  12  Pac.  677; 
and  see  Gross  v.  Superior  Court,  71  Cal. 
382;  ]2Pac.2fi4. 

Construction  of  section.  The  provision 
of  this  section,  that,  upon  an  appeal  on 
questions  of  law  alone,  the  superior  court 
may  review  all  orders  affecting  the  .iudg- 
ment  appealed  from,  and  may  set  aside,  or 
confirm,  or  modify,  any  or  all  of  the  pro- 
ceedings subsequent  to  and  dependent 
upon  such  judgment,  and  may,  if  necessary 
or  proper,  order  a  new  trial,  confers  upon 
the  superior  court,  plenary  appellate  .iuris- 
dietion,  and  there  are  no  other  provisions 
which  limit  it  in  the  exercise  of  that 
jurisdiction.  Maxson  v.  Suj)erior  Court,  124 
Cal.  4(3S;  57  Pac.  379. 

Jurisdiction  of  superior  court.  The  su- 
perior court  acquires  no  jurisdiction  of  an 
appeal  from  a  justice's  court,  where  the 
undertaking  on  appeal  was  prematurely 
filed  before  the  filing  of  the  notice  of  ap- 
peal. Goodman  v.  Superior  Court,  19  Cal. 
.\pp.  457;  126  Pac.  185.  A  defendant, 
who,  after  appealing  to  the  superior  court 
upon  questions  of  law  and  fact,  seasonably 
challenges  the  jurisdiction  of  the  court  to 
try  the  action  upon  its  merits,  by  reason 
of  want  of  jurisdiction  of  the  justice'3 
court  over  the  subject-matter  of  the  action, 


Amendments.     Ante,  §  473. 
Trial  de  novo.    See  ante,  §  976. 
New  trial.    Ante,  §§  656  et  seq. 

Legislation  S  980.  1.  Enacted  March  11,  1S73 
(based  on  Practice  Act,  §  367,  as  amended  by 
stats.  18.54,  Redding  ed.  p.  66,  Kerr  ed.  p.  93), 
(1)  substituting  (a)  "a"  for  "the"  (of  Kerr's 
ed. ;  Redding  prints  the  article  "a")  before 
"statement,"  (b)  "such"  for  "said"  before  "judg- 
ment." (c)  "must"  for  "shall"  after  "trial."  (d) 
"code"  for  "act,"  and  (e)  "are"  for  "shall  be" 
before  "applicable";  (2)  omitting  "shall"  after 
"appeal";  and  (3)  inserting  "may"  before  "be 
enforced." 

2.  Amended  by  Code  Amdts.  1880,  p.  17, 
(1)  in  first  sentence,  changing  "c6unty"  to  "su- 
perior"; (2)  in  sentence  beginning  "When,"  (a) 
adding  "other"  before  "trials,"  and  (b)  chan- 
ging "district"  to  "superior"  ;  (3)  in  sentence  be- 
ginning "The  provisions,"  (a)  before  "court,"  in 
first  instance,  changing  "district"  to  "superior." 
and  (b)  in  second  instance,  "county"  to  "su- 
perior"; (4)  in  sentence  beginning  "For,"  (a) 
changing  "county"  to  "superior."  and  (b)  add- 
ing, after  "dismissed,"  the  words  "with  costs: 
and  if  it  appear  to  such  court  that  the  appeal 
was  made  solely  for  delay,  it  may  add  to  the 
costs  such  damages  as  may  be  just,  not  exceeding 
twenty-five  per  cent  of  the  judgment  appi'aled 
from";  and  (5)  in  sentence  beginning  ".Judg- 
ments," (a)  changing,  before  "court  on  appeal," 
"county"  to  "superior,"  (b)  adding  "shall"  after 
"appeal,"  and  (c)  changing  "district"  to  "supe- 
rior"  at  end  of  section. 

3.  Amendment  by  Stats.  1901,  p.  176;  un- 
constitutional.    See  note  ante,  §  5. 

Constitutionality  of  section.  An  appeal 
from  a  justice's  court  to  the  superior  court 
of  the  county  in  which  the  action  was 
'brought  cannot  be  transferred  for  trial  to 
the  superior  court  of  any  other  county;  the 


980 


APPEALS  TO  SUPERIOR  COURTS. 


1146 


appearing  upon  the  face  of  the  record,  is 
entitled  to  a  judgment  or  order  dismissing 
the  action  for  want  of  jurisdiction  to  try 
it  upon  its  merits.  Bartnett  v.  Hull,  19 
Cal.  App.  91;  124  Pac.  885.  Parties  can- 
not waive  jurisdiction  of  the  subject- 
matter,  nor  confer  it  by  consent.  Stimpson 
Computing  Scale  Co.  v.  Superior  Court,  12 
Cal.  App.  536;  107  Pac.  1013.  Where  a 
justice  of  the  peace  has  no  jurisdiction  of 
a  case,  but  an  appeal  is  taken  to  the  su- 
perior court,  and  the  case  is  there  heard 
de  novo,  without  objection  to  the  juris- 
diction, the  judgment  of  the  superior  court 
cannot  be  questioned.  Nolan  v.  Hentig,  138 
Cal.  2S1;  71  Pac.  440;  Bates  v.  Ferrier,  19 
Cal.  App.  79;  124  Pac.  889.  Upon  appeal 
from  the  judgment  of  a  justice  of  the 
peace,  the  court  of  review  may  admit  proof 
supplemental  to  the  record,  in  aid  of  its 
jurisdiction.  Los  Angeles  v.  Young,  118 
Cal.  295;  62  Am.  St.  Rep.  234;  50  Pac.  534. 

What  orders  reviewable.  The  superior 
court  may  review  all  orders  affecting  the 
judgment  appealed  from.  Baird  v.  Justice's 
Court,  11  Cal.  App.  439;  105  Pac.  259; 
Hamberger  v.  Police  Court,  12  Cal.  App. 
153;  106  Pac.  894;  Clark  v.  Minnis,  50 
Cal.  509.  The  superior  court  may  review 
the  order  refusing  to  transfer  the  cause, 
and,  in  a  proper  case,  may  direct  the 
justice  to  enter  an  order  transferring  the 
cause.  Clark  v.  Minnis,  50  Cal.  509.  An 
order  of  a  justice  of  the  peace,  refusing 
to  set  aside  a  sale  of  property  under  exe- 
cution, will  be  presumed  to  have  been  cor- 
rect, unless^  the  contrary  appears;  the 
action  of  the  justice  may  be  reviewed  by 
the  superior  court  upon  an  appeal  from 
the  judgment.  Peterson  v.  Weissbein,  65 
Cal.  42;  2  Pac.  730.  An  order  of  a  jus- 
tice of  the  peace,  refusing  to  dissolve  an 
attachment,  is  not  reviewable  in  the  su- 
perior court.  Nail  v.  Superior  Court,  11 
Cal.  App.  27;  103  Pac.  902. 

Afarmance  or  reversal  of  judgment. 
Where,  in  an  action  in  a  justice's  court, 
the  defendant,  who  was  served  with  the 
summons,  but  not  with  a  copy  of  the  com- 
plaint, appeared  specially  to  move  to  set 
aside  the  service,,  and  the  motion  was 
granted  and  judgment  entered  against  the 
•plaintiff,  who  took  an  appeal,  and  the  de- 
tendant  appeared  specially  in  the  superior 
court  for  the  purpose  of  moving  to  dismiss 
the  appeal,  the  superior  court  has  juris- 
diction only  to  afBrm  or  reverse  the  judg- 
ment, and  has  no  power  to  make  the  order 
in  question.  Southern  Pacific  R.  R.  Co.  v. 
Superior  Court,  59  Cal.  471.  Where  there 
has  been  no  trial  in  fact,  there  is  no  evi- 
dence to  be  embodied  in  a  statement  of 
the  case;  but  the  superior  court  is  author- 
ized to  reverse  the  judgment,  if  error  ap- 
pears in  the  copy  of  the  justice's  docket, 
or  in  the  papers  and  files  sent  up  from 
the  justice's  court.  Miklanschutz  v.  Su- 
perior  Court,  16   Cal.   App.   227;   116   Pac. 


376.  Upon  an  appeal  from  an  order  set- 
ting aside  the  service  of  summons  in  a 
justice's  court,  the  superior  court  cannot 
order  a  new  trial,  because  the  action  has 
not  been  tried;  the  superior  court,  there- 
fore, has  jurisdiction  merely  to  affirm  or 
reverse  the  justice's  judgment.  Southern 
Pacific  R.  R.  Co.  v.  Superior  Court,  59 
Cal.  471.  Where  an  appeal  is  taken  from 
a  judgment  of  a  justice  of  the  peace,  to 
the  superior  court,  upon  a  question  of  law, 
upon  a  record  showing  that  evidence  was 
adduced  by  both  parties,  which  clearly 
showed  that  the  right  of  possession  and 
title  to  the  land  mentioned  in  the  plain- 
tiff's case  was  involved,  it  is  the  duty  of 
the  superior  court  to  reverse  the  judgment. 
King  V.  Kutner-Goldstein  Co.,  135  Cal.  65; 
67  Pac.  10.  Upon  an  appeal  to  the  su- 
perior court  upon  a  question  of  law  alone, 
where  there  has  been  no  trial  of  issues  of 
fact,  but  the  ruling  of  the  justice's  court, 
upon  demurrer  to  the  complaint,  is  held 
erroneous,  the  suj^erior  court,  on  reversing 
the  cause,  cannot  retry  the  cause;  but  such 
reversal  does  not  have  the  effect  of  dis- 
missing the  action,  and  the  superior  court 
may  remand  the  cause,  with  instructions 
to  the  justice's  court  to  overrule  the  de- 
murrer, with  leave  to  the  plaintiff  to 
amend  if  so  advised.  Maxson  v.  Sujjerior 
Court,  124  Cal.  468;  57  Pac.  379. 

New  trial  proper  when.  Where  a  non- 
suit has  been  granted  on  the  trial  of  an 
appeal  from  a  justice's  court,  the  superior 
court  has  jurisdiction  to  grant  a  new  trial. 
Massman  v.  Superior- Court,  71  Cal.  582; 
12  Pac.  685.  Upon  an  appeal  from  a  judg- 
ment in  a  justice's  court,  setting  aside  a 
judgment  previously  rendered  and  dismiss- 
ing the  action,  the  superior  court  cannot 
affirm  the  judgment  set  aside,  which  was 
not  appealed  from  and  which  has  ceased 
to  exist:  its  jurisdiction  is  limited  to  a 
review  of  the  judgment  appealed  from, 
and  if  of  the  opinion  that  the  court  erred 
in  vacating  the  previous  judgment,  it 
should  reverse  the  judgment  appealed  from 
and  order  a  new  trial.  Sherer  v.  Superior 
Court,  94  Cal.  354;  29  Pac.  716.  Where  an 
appeal  to  a  superior  court  is  based  on  ques- 
tions of  law  alone,  the  proper  procedure 
is  to  remand  the  cause  for  trial  in  the 
justice's  court.  Smith  v.  Superior  Court, 
2  Cal.  App.  529;  84  Pac.  54.  The  superior 
court,  upon  an  appeal  on  questions  of  law 
alone,  has  jurisdiction  to  review  the  rul- 
ings of  the  justice's  court,  and  to  remand 
the  cause,  with  directions  to  the  lower 
court  to  jjroceed  in  accordance  with  the 
decision  of  the  appellate  court.  Maxson 
V.  Superior  Court,  124  Cal.  468;  57  Pac. 
379.  Upon  an  appeal  from  a  juclgment  of 
a  justice's  court,  taken  on  questions  of 
both  law  and  fact,  the  superior  court  has 
no  authority  to  remand  the  cause  to  the. 
justice's  court  for  a  fiial  de  novo:  i.t 
should  proceed  with  the  trial,  and  in  case 


1147 


NEW  TRIAL — TRIAL  DE  NOVO DISMISSAIi. 


of  refusal,  it  may  be  compelled  to  do  so 
by  mandamus.  Acker  v.  yiiperior  Court, 
6S  Cal.  245;  9  Pac.  109;  10  Pac.  416.  An 
appeal  from  a  judgment  of  a  justice's  court 
granting  a  nonsuit,  though  taken  on  ques- 
tions of  both  law  and  fact,  presents  a 
question  of  law  only,  and  the  superior 
court,  upon  reversal,  properly  refused  to 
grant  a  trial  de  novo,  and  remanded  the 
case  for  a  new  trial.  Smith  v.  Superior 
Court,  2  Cal.  App.  529;  84  Pac.  54.  The 
efifect  of  a  stipulation,  in  a  justice's  court, 
for  a  trial  upon  the  merits,  is  to  treat 
the  case  as  at  issue,  and,  after  such  a  stipu- 
lalion,  the  superior  court  has  jurisdiction 
to  vacate  a  judgment  taken  by  default, 
and  to  remand  the  case  to  the  justices' 
court  for  trial  upon  the  merits.  Miklau- 
■schutz  V.  Superior  Court,  16  Cal.  App.  226; 
116  Pac.  376. 

Trial  de  novo  in  the  superior  court.  A 
new  trial  on  appeal,  on  a  question  of  law 
alone,  is  properly  ordered  to  be  had  in 
the  superior  court.  Curtis  v.  Superior 
Court,  63  Cal.  435;  People  v.  Freelon,  8 
•Cal.  517.  Where  the  want  of  jurisdiction 
of  .the  justice's  court  appears  upon  the 
record  transmitted  to  the  superior  court, 
the  appellant's  objection  to  the  superior 
•court's  trying  the  case  anew  upon  the 
merits  is  good,  if  seasonably  made.  Bates 
V.  Ferrier,  19  Cal.  App.  79;  124  Pac.  889. 
A  new  trial  of  a  cause  in  the  superior 
■court  on  appeal  cannot  be  had,  unless  there 
has  been  a  trial  of  issues  of  fact  in  the 
justice's  court.  Maxson  v.  Superior  Court, 
124  Cal.  468;  57  Pac.  379;  and  see  People 
V.  County  Court,  10  Cal.  19;  Funkenstein 
V.  Elgutter,  11  Cal.  328;  Southern  Pacific 
E.  R.  Co.  V.  Superior  Court,  59  Cal.  471; 
Rickey  v.  Superior  Court,  59  Cal.  661; 
Myrick  v.  Superior  Court,  68  Cal.  98;  8 
Pac.  648.  Upon  an  appeal  from  a  judg- 
ment of  a  justice's  court,  in  favor  of  an 
intervener  and  the  defendant,  the  plaintiff 
has  the  right  not  only  to  have  the  superior 
court  fiass  upon  the  sufficiency  of  his  de- 
murrer to  the  complaint  in  intervention 
without  any  statement  of  the  case,  but  also 
to  have  tried  de  novo  all  the  issues  of  fact 
that  were  presented  in  the  justice's  court. 
Rossi  V.  Superior  Court,  114  Cal.  371;  46 
Pac.  177.  The  erroneous  entry  of  a  judg- 
ment of  dismissal  against  the  plaintiff  does 
not  deprive  him  of  his  right  to  appeal  upon 
■questions  of  both  law  and  fact,  so  as  to 
have  his  cause  tried  de  novo  in  the  su- 
perior court.  Peacock  v.  Sujicrior  Court, 
163  Cal.  701;  126  Pac.  976.  After  a  trial 
upon  the  merits  and  a  final  judgment  in 
the  justice's  court,  an  appeal  on  questions 
of  law  and  fact  will  compel  a  trial  do 
novo  in  the  superior  court.  Smith  v.  Su- 
perior Court,  2  Cal.  App.  529;  84  Pac.  54. 
"Where  an  appeal  is  taken  "on  questions 
of  fact"  or  "ou  questions  of  both  law  and 
fact,"  the  action  must  be  tried  anew  in 
the  suijerior  court.   Armantage  v.  Superior 


§980 


Court,  1  Cal.  App.  130;  81  Pac.  1033; 
Ketchum  v.  Superior  Court,  65  Cal.  494; 
4  Pac.  492.  When  an  appeal  from  a  jus- 
tice's court  is  perfected,  ui)on  questions  of 
both  law  and  fact,  the  case  is  removed 
to  the  superior  court  for  a  trial  de  novo, 
and  the  superior  court  must  try  the  case 
as  if  there  had  been  no  trial  in  the  jus- 
tice's court.  Kraker  v.  Superior  Court,  15 
Cal.  App.  651;  115  Pac.  663.  It  is  the 
duty  of  the  superior  court,  when  an  appeal 
to  it  has  been  duly  perfected,  to  deter- 
mine the  case  as  if  it  had  been  commenced 
by  the  plaintiff  therein.  Rabin  v.  Pierce, 
TO  Cal.  App.  734;  103  Pac.  771.  Upon  ap- 
peal from  a  justice's  court,  the  trial  in  the 
superior  court  is  anew,  and  must  be  con- 
ducted, in  all  respects,  as  other  trials  in 
the  superior  court.  Nail  v.  Superior  Court, 
11  Cal.  App.  27;  103  Pac.  902.  All  the 
provisions  of  this  code,  relative  to  the 
trial  of  cases  which  have  been  commenced 
within  the  original  jurisdiction  of  the  su- 
perior court,  are  made  applicable  to  the 
trial  de  novo  of  cases  within  its  appellate 
jurisdiction;  therefore  the  allowance  of 
amendments  to  pleadings  is  a  matter  within 
its  discretion.  Ketchum  v.  Superior  Court, 
65  Cal.  494;  4  Pac.  492.  The  power  given 
to  try  the  action  anew  does  not  give  the 
superior  court  jurisdiction  to  review  the 
action  of  the  justice's  court  in  an  ancil- 
lary proceeding,  such  as  an  attachment, 
but  the  trial  must  be  conducted  in  the  su- 
perior court  in  all  respects  as  other  trials 
in  the  superior  court;  and  the  judgment 
rendered  on  the  appeal  has  the  same  effect 
as  if  the  action  had  been  commenced  in 
the  superior  court,  and  as  if  there  had  been 
no  trial  in  the  justice's  court.  Nail  v.  Su- 
perior Court,  11  Cal.  App.  27;  103  Pac. 
902.  Where  the  superior  court,  without 
authority,  dismisses  an  appeal  taken  to  it 
from  a  justice's  court,  the  order  of  dis- 
missal may  be  annulled  on  writ  of  review, 
when  the  case  will  stand  for  trial  de  novo 
in  the  superior  court.  Kraker  v.  Superior 
Court,  15  Cal.  App.  654;  115  Pac.  66.'!. 

Judgment  necessary  to  appeal.  The  su- 
jierior  court  has  no  jurisdiction  of  an  ap- 
peal from  a  justice's  court,  in  which  there 
was  a  trial  by  jury,  but  no  judgment  had 
been  entered  in  the  docket  in  conformity 
with  the  verdict  when  the  appeal  was 
taken.  June  v.  Superior  Court,  16  Cal. 
App.  126;  116  Pac.  293. 

Dismissal  for  delay  in  filing  papers. 
The  sujKM'ior  court  has  jurisdiction  to 
ado])t  and  enforce  a  rule  that  the  record 
and  transcript  on  appeal  from  a  justice's 
court  must  be  filed  within  ten  days  after 
the  perfecting  of  the  appeal,  and  that,  in 
default  thereof,  the  appeal  will  be  dis- 
missed on  motion;  and  its  order  dismissing 
an  appeal  in  conformity  with  such  rule 
cannot  be  annulled  apon  certiorari.  Mc- 
Kay v.  Superior  Court,  86  Cal.  431;  25  Pac. 
10/ 


981 


APPEiVLS  TO  SUPERIOR  COURTS. 


1148 


For  failure  to  perfect  or  prosecute  ap- 
peal. The  power  of  the  superior  court 
to  dismiss  an  appeal  with  costs,  etc.,  ap- 
plies only  to  cases  wherein  there  was  a 
failure  technically  to  perfect  the  appeal; 
and  where  an  appeal  has  not  been  prop- 
erly perfected,  all  that  the  superior  court 
can  do  is  to  dismiss  it.  Rabin  v.  Pierce, 
10  Cal.  App.  734;  103  Pac.  771. 

Dismissal  for  failure  to  prosecute  appeal. 
A  failure  to  produce  in  the  appellate  court 
a  duly  certified  copy  of  the  docket  of  the 
justice  of  the  peace,  is  a  failure  to  prose- 
cute the  appeal,  within  the  meaning  of 
this  section,  and  is  a  ground  for  the  dis- 
missal of  the  appeal.  People  v.  Elkins, 
40  Cal.  642.  Where  the  defendant  has  ap- 
pealed to  the  justice's  court,  on  questions 
of  law  and  fact,  the  superior  court  is  with- 
out jurisdiction  to  dismiss  the  appeal  for 
want  of  prosecution,  and  to  render  a  judg- 
ment for  the  plaintiff  below.  Kraker  v. 
Superior  Court,  15  Cal.  App.  6.51;  115  Pac. 
663.  The  superior  court  has  no  power  to 
dismiss  an  appeal  for  want  of  prosecution 
by  the  appellant.  Rabin  v.  Pierce,  10  Cal. 
App.  734;  103  Pac.  771. 

Municipal  court  could  dismiss.  The  mu- 
nicipal court  of  appeals  had  jurisdiction  to 
dismiss  appeals  from  justices'  courts  (Alex- 
ander V.  Municipal  Court,  2  Cal.  Unrep. 
390;  4  Pac.  961);  and  it  had  power  to 
dismiss  an  appeal  for  failure  to  prosecute 
it;  and  such  dismissal,  although  erroneous, 
could  not  be  reviewed  on  certiorari.  Alex- 
ander V.  Municipal  Court,  66  Cal.  387;  5 
Pac.  675. 

Effect  of  dismissal.  Where  a  premature 
appeal  is  dismissed  by  the  superior  court, 
although  the  motion  was  not  made  upon 
that  ground,  it  cannot  be  compelled  to 
proceed  with   the   trial   of   the   ease   (.June 

§  981.  Fees  payable  on  filing'  appeal.  No  appeal  taken  from  a  judgment 
rendered  in  a  police  or  justice  court  in  civil  matters  shall  be  effectual  for 
any  purpose  whatever  unless  the  appellant  shall,  at  the  time  of  filing  the 
notice  of  appeal,  pay  in  addition  to  the  fee  payable  to  the  justice  of  the 
peace  on  appeal,  the  fees  provided  by  law  to  be  paid  to  the  county  clerk  for 
filing  the  appeal  and  for  placing  the  action  on  the  calendar  in  the  superior 
court.  Upon  transmitting  the  papers  on  appeal,  the  justice  or  judge  shall 
transmit  to  the  county  clerk  the  sura  thus  deposited  for  filing  the  appeal  in 
the  superior  court  and  for  placing  the  action  on  the  calendar.  No  notice  of 
appeal  shall  be  filed  unless  the  fees  herein  provided  for  are  paid  in  accord- 
ance vnth  the  provisions  of  this  section. 

Legislation  §981.    Added  by  Stats.  1915,  p.  236. 

CHAPTER  IV. 

APPEALS  FRO:\I  PROBATE  COURTS. 


V.  Superior  Court,  16  Cal.  App.  126;  116 
Pac.  293) ;  but  where  the  superior  court 
erroneously  dismisses  an  appeal  on  the 
theory  that  it  has  no  jurisdiction,  manda- 
mus lies  to  compel  it  to  hear  and  decide 
the  cause.  Peacock  v.  Superior  Court,  163 
Cal.  701;  126  Pac.  976;  Blake  v.  Superior 
Court,  17  Cal.  App.  51;  118  Pac.  448;  Wid- 
rin  V.  Superior  Court,  17  Cal.  App.  93;  118 
Pac.  550.  The  superior  court  can  vacate  its 
erroneous  order  of  dismissal.  Edwards  v. 
Su]>erior  Court,  159  Cal.  710;  115  Pac.  649. 

Papers  not  returnable  to  justice.  Where 
the  papers  upon  appeal  have  once  been 
properly  filed  in  the  superior  court,  the 
justice  has  no  power  to  recall  them  for  any 
purpose;  nor  has  the  superior  court  any 
authority  to  cause  the  papers  to  be  re- 
turned to  the  justice.  Budd  v.  Superior 
Court,  14  Cal.  App.  256;  111  Pac.  628. 

Transmission  of  judgment.  A  certified 
copy  of  the  judgment  of  the  superior  court, 
rendered  upon  an  appeal,  including  its 
directions  to  the  justice's  court,  is  sufficient 
for  the  transmission  of  the  judgment  to 
the  justice's  court.  Maxson  v.  Superior 
Court,  124  Cal.  468;  57  Pac.  379. 

Petition  for  rehearing.  A  petition  for 
a  rehearing,  after  a  judgment  rendered 
upon  an  appeal  from  a  justice's  court,  is 
unknown  to  the  law,  or  to  the  practice 
of  the  superior  court.  Fabretti  v.  Superior 
Court,  77  Cal.  305;  19  Pac.  481. 

Prohibition.  An  appeal  from  a  justice's 
court  will  not  be  disturbed  on  prohibition, 
where  the  superior  court  has  jurisdiction. 
Budd  V.  Superior  Court,  14  Cal.  App.  256; 
111  Pac.  628. 

CODE  COMMISSIONERS'  NOTE.  Cullen  v. 
Langridge,  17  Csl.  67;  People  v.  Harris.  9  Cal. 
573;  Hunter  v.  Hoole,  17  Cal.  418;  Escolle  v. 
Merle,  9  Cal.  94;  Cunningham  v.  Hopkins,-  8 
Cal.  33. 


CHAPTER  V. 

APPEALS  TO  COUNTY  COURTS. 


Legislation  Chapters  rV,  V.     1.  Enacted  March 
11,  1873.      See  §§  969-971,  §§  974-980,  ante. 


2.  Repealed  by  Code  Amdts.  1880,  p.  64,. by 
an  act  repealing  Chapters  IV,  V. 


1149 


PARTIES   IN    JOINT   ACTION. 


§989 


TITLE  XIV. 
I\riSCELLANEOUS  PROVISIONS. 

Chapter  T.  Proceedings  against  Joint  Debtors.     §§  98:^-994. 

II.  Offer  of  Defendant  to  Coniproniise.     §997. 

III.  Inspection  of  Writings.      §  lOUO. 

IV.  Motions  and  Orders.     §§  1003-1007. 

V.     Notices,  and  Filing  and  Service  of  Papers.     §§  1010-1019. 
VI.     Costs.     §§  1021-1():!9. 
VII.     General  Provisions.     §§  1045-1059. 


CHAPTER  I. 
PKOCEEDINGS  AGAINST  JOINT  DEBTORS. 


§  989.     Parties   not   summoned   in   action   on  joint  §  991. 

contract  may  be  summoned  after  judg-  §  992. 

nK'iit.  §  99r!. 

S  990.     Summons    in   that    case,    what   to    contain,  §  994. 

and  how  served. 


Affidavit  to  accompany  summons. 
Answer.      What   it   may  contain. 
What  constitute  the  pleadings  in  the  case. 
Issues,  how  tried.     Verdict,  what  to  be. 


§989.  Parties  not  summoned  in  action  on  joint  contract  may  be  sum- 
moned after  judgment.  When  a  .indgment  is  recovered  against  one  or  more 
of  several  persons,  jointly  indebted  upon  an  obligation,  by  proeeedintr  as 
provided  in  section  four  hundred  and  fourteen,  those  who  are  not  oritri- 
nally  served  w^ith  the  summons,  and  did  not  appear  to  the  action,  may  be 
summoned  to  show  cause  why  they  should  not  be  bound  by  the  judgment. 
in  the  same  manner  as  though  they  had  been  originally  served  with  the 
summons. 

ute,  no  action  could  be  maintained  against 
him  on  the  original  contract,  for  the  rea- 
son that  it  would  be  merged  in  the  first 
.iudgment,  and  the  merger  is  restrained 
only  for  the  purpose  and  to  the  extent  of 
enabling  the  proceedings  to  be  had  as  pre- 
scribed in  this  statute.  These  provisions 
vrould  be  useless  if  an  action  could  be 
maintained  on  the  judgment  against  a  de- 
fendant not  served  in  the  former  action. 
Tay  V.  Hawley.  ?,9  Cal.  93. 

Defendants  not  served,  how  bound  by 
judgment.  A  judgment  against  the  de- 
fendants served  in  an  action  against  sev- 
eral defendants  jointly  may  be  entered, 
and  those  not  served  may  be  brought  in 
and  bound  by  proceedings  under  this  chap- 
ter. Eobcrts  V.  Donovan,  70  Cal.  lOS;  9 
Pac.  ISO.  Where  a  judgment  is  rendered 
against  a  party  upon  several  promissory 
notes  signed  by  him,  and  one  of  the  notes 
is  also  signed  by  two  other  persons,  who 
are  made  parties  defendant,,  but  who  were 
not  served  with  process  and  do  not  appear, 
such  other  persons  may  be  brought  into 
court  to  show  cause  why  they  should  not 
be  bound  by  the  judgment,  to  the  extent 
of  the  note  which  they  signed,  and  they 
may  be  declared  bound  by  it.  Sneath  v. 
Griffin.  48  Cal.  438. 

Jurisdiction  over  joint  debtor.  The  ju- 
risdiction that  a  court  acquires  over  a 
joint  debtor  not  served,  after  a  judgment 


Cognate  provisions,    .'tnte,  §§  383,  414,  579. 

Joining  persons  severally  liable  upon  instru- 
ment.    Ante,  §  3R?.. 

Summons  served  on  one  defendant  out  of  sev- 
eral, plaintiff  may  proceed  against  him  alone. 
Ante,  §  414. 

Judgment  against  some  defendants,  proceeding 
continuing  against  others.    Ante,  §  .579. 

Release  of  one  joint  debtor  does  not  discharge 
others.    Civ.   Code,  §  1543. 

Legislation  8  989.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  368  (New  York  Code, 
§  375),  substituting  "four  hundred  and  fourteen" 
for  "thirty-two." 

Construction  of  chapter.  An  action  un- 
der this  chapter  is  really  an  action  on 
the  original  joint  contract,  and  matters 
of  defense  in  respect  to  the  judgment  are 
merely  incidental  to  the  action.  Tay  v. 
Hawley,  39  Cal.  93.  Proceedings  under 
this  chapter,  for  the  purpose  of  binding 
a  partner  by  a  judgment  recovered  against 
his  copartner,  are  in  the  nature  of  an  ac- 
tion upon  a  judgment;  and  neither  the 
pleadings  nor  the  judgment  in  the  origi- 
nal action  can  be  amended.  Waterman  v. 
Lipman,  67  Cal.  26;  6  Pac.  875;  Cooper 
V.  Burch,  140  Cal.  548;  74  Pac.  37.  Pro- 
ceedings under  this  chapter  furnish  the 
exclusive  mode  by  which  a  defendant,  who 
■was  not  served  with  summons,  can  be 
bound  by  the  judgment,  and  they  neces- 
sarily imply  that  he  is  not  already  bound, 
and  he  is  not  a  proper  party  to  an  action 
on  judgment.     Were  it  not  for   this   stat- 


§§990-992 


PROCEEDINGS  AGAINST  JOINT  DEBTORS. 


1150 


against  other  joint  debtors,  is  limited  to 
an  order  for  him  to  show  cause  why  he 
should  not  be  bound  to  the  sapie  extent 
as  his  co-obligors,  by  the  judgment  al- 
ready entered  against  them.  Cooper  v. 
Burch,  140  Cal.  548;  74  Pac.  37;  and  see 
Tay_  V.  Hawley,  39  Cal.  93.  Under  this 
section,  when  a  judgment  is  recovered 
against  one  or  more  of  several  persons, 
jointly  indebted  upon  an  obligation,  those 
not  originally  served  may  be  brought  in 
and  bound  by  the  judgment  already  en- 
tered against  their  co-obligors.  Melander 
V.  Western  National  Bank,  21  Cal.  App. 
462;  132  Pac.  265. 

Eight  of  incoming  defendant  to  plead. 
A  demurrer  to  the  original  complaint  by 
an  incoming  defendant  is  not  provided  for 
by  statute,  and  the  defendant  is,  in  ex- 
press terms,  denied  the  right  to  plead  the 
statute  of  limitations;  and  this  is  per- 
fectly proper,  if  the  complaint  is  to  re- 
main intact  for  all  purposes,  but  no  good 
reason  can  be  suggested  for  it,  if  it  might 
be  amended,  because,  as  the  amendment 
might  change  the  cause  of  action  from  a 
suit  upon  a  written  instrument  to  one  on 
parol  contract,  an  opportunity  would  then, 
for  the  first  time,  be  open  either  to  the 
defendant  or  his  co-obligors  to  avail 
themselves  of  the  benefit  of  the  statute. 
Cooper  V.  Burch,  140  Cal.  548;  74  Pac.  37. 

Judgment    against    alleged    copartners. 

§090,     Summons  in  that  case,  what  to  contain,  and  how  served.     The 

summons,  as  provided  in  the  last  section,  must  describe  the  judgment,  and 
require  the  person  summoned  to  show  cause  why  he  should  not  be  bound 
by  it,  and  must  be  served  in  the  same  manner,  and  returnable  within  the 
same  time,  as  the  original  summons.  It  is  not  necessary  to  file  a  new  com- 
plaint. 

Summons,    contents,    service,    etc.,    of. 

§§  407,   410   et  seq. 


Proceedings  under  this  chapter,  for  the 
purpose  of  binding  a  partner  by  a  judg- 
ment recovered  against  his  copartner,  are 
in  the  nature  of  an  action  upon  a  judg- 
ment; and  neither  the  pleadings  nor  the 
judgment  in  the  original  action  can  be 
amended.  Waterman  v.  Lipman,  67  Cal. 
26;  6  Pac.  875.  In  a  suit  against  two 
defendants,  alleged  to  be  copartners,  in 
which  summons  is  served  on  one  only,  a 
judgment  against  the  other  cannot  be  ren- 
dered: the  remedy  of  the  plaintiff  is  by 
proceedings  under  this  chapter.  Feder  v. 
Epstein,  69  Cal.  456;  10  Pac.  785.  A  judg- 
ment recovered  in  a  sister  state,  against 
several  defendants  as  copartners,  direct- 
ing that  it  be  enforced  against  the  joint 
property  of  all  the  defendants,  and  against 
the  separate  property  of  one,  who  was 
the  only  one  served,  is  not  void  as  to  such 
defendant,  and  action  may  be  maintained 
thereon  in  this  state.  Stewart  v.  Spaul- 
ding,  72  Cal.  264;  13  Pac.  661. 

Judgment  against  joint  debtors.  See 
note  post,  §  994. 

Efifect  of  judgment  against  co-trespasser  as  1)31 
to  action  against  otliers.  See  note  54  Am.  Dec. 
205. 

Effect  of  judgment  against  one  joint  tort-feasor 
upon  liability  of  the  other.  See  note  58  L.  K.  A. 
410. 

Validity  and  effect  as  against  defendant  not 
personally  served  wichin  the  state  of  a  judgment 
in  personam  against  joint  debtors.  See  note  35 
L.  It.  A.   (N.  S.J   312. 


Ante, 


Legislation  §  980.      Enacted    March    11,    1S73 
(based   on   Practice   Act,  §  369),    substituting    (1) 


"must"    for    "shall,"    in   both   instances,   and    (2) 
'is  not"  for   "shall  not  be,"   in  the   last  sentence. 

Due  process  in  service  on  joint  debtors.    See 
note  50  L.  R.  A.  595. 

§991.  Affidavit  to  accompany  summons.  The  summons  must  be  ac- 
companied by  an  affidavit  of  the  plaintiti,  his  agent,  representative,  or  at- 
torney, that  the  judgment,  or  some  part  thereof,  remains  unsatisfied,  and 
must  specify  the  amount  due  thereon. 

Legislation  §  991.  Enacted  March  11,  1873  "must"  for  "should,"  and  (2)  "must"  for  "shall." 
(based  on   Practice   Act,  §  370),   substituting    (1) 

§  992.  Answer.  What  it  may  contain.  Upon  such  summons,  the  defend- 
ant may  answer  within  the  time  specified  therein,  denying  the  judgment, 
or  setting  up  any  defense  which  may  have  arisen  subsequently;  or  he  may 
deny  his  liability  on  the  obligation  upon  which  the  judgment  was  recovered, 
by  reason  of  any  defense  existing  at  the  commencement  of  the  action. 

Answer,  generally.    Ante,  §  437. 

Legislation  8  992.  1.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §  371),  changing  "limita 
tion"  to  "limitations." 


Amendment    by    Stats.    1901,    p.    176;    un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by   Stats.   1907,   p.    600,    substi- 


tuting "by  reason  of  any  defense  existing  at  the 
commencement  of  the  action"  for  "except  a  dis- 
charge from  such  liability  by  the  statute  of  limi- 
tations" ;  the  code  commissioner  saying,  "This 
removes  the  prohibition  against  the  pleading  of 
the  statute  of  limitations  if  that  defense  existed 
at  the  commencement  of  the  action." 


1151  PLEADINGS— TRIAL OFFER  TO  COMPROMISE.  §§993-907 

§  993.  What  constitute  the  pleadings  in  the  case.  If  the  defeudant,  in 
his  answer,  denies  the  judgment,  or  sets  up  any  defense  which  may  have 
arisen  subsequently,  the  summons,  with  the  affidavit  annexed,  and  the  an- 
swer, constitute  the  written  allegations  in  the  case;  if  he  denies  his  liability 
on  the  obligation  upon  which  the  judgment  was  recovered,  a  copy  of  the 
original  complaint  and  judgment,  the  summons,  with  the  affidavit  annexed, 
and  the  answer,  constitute  such  written  allegations,  subject  to  the  right  of 
the  parties  to  amend  their  pleadings  as  in  other  cases. 

Legislalion  8  993.    1.  Enacted  March  11,  1872  stances,  and    (b)    "sots"  for  "set";   and    (3)   add- 

(bascd   on    Practice   Act,  §  372),   omitting   "shall"  ing   "subject   to   the  right  of  the   parties  to  amend 

before    "constitute,"   in    both   instances.  their  pleadings  as  in   other  cases";   the  code  com- 

3.   Amendment    by    .Stats.    1901,    p.    177;    un-  niissioner    sayins,    "thus    entitline    the    parties    to 

constitutional.     See  note  ante.  §  5.  amend     their    pleadings     as    in     other    cases     and 

3.    Amended  by  Stats.   1907,  p.  600,    (1)   sub-  changing  the   rule   adopted  in  Waterman  v.  Lipp- 

Stituting     (a)     "denies"     for    "deny,"    in    both    in-  man,  67  Cal.  26." 

§  994.  Issues,  how  tried.  Verdict,  what  to  be.  The  issues  formed  may 
be  tried  as  in  other  cases;  but  when  the  defendant  denies,  in  his  answer, 
any  liability  on  the  obligation  upon  which  the  judgment  was  rendered,  if 
a  verdict  be  found  against  him,  it  must  be  for  not  exceeding  the  amount 
remaining  unsatisfied  on  such  original  judgment,  with  interest  thereon. 

Trial.    Ante,  §§  607-G4,'5.  be.  rendered    against    a    joint    debtor    ap- 

Legislation  8  994.     Enacted   March    11,    1872  pearing  after  judo-ment  is  one  for  such  an 

(based  on  Practice  Act,  §373),   (1)   substituting  amount     as     remains    unsatisfied     on     the 

"must      for      shall.      and    (2)    inserting      not    e.x-  ....     -              ^       ^                        ^        ,       ,  .^ 

ceeding"   before   "the  amount."  original   .ludgment.     Cooper    V.    Burch,    140 

Judgment.     After    a    judgment    against       ^^^-  ^^^>  ^'^  ■P'^'^-  ^^• 
joint  debtors,  the  only  judgment  that  can 

CliAPTEE  II. 

OFFER  OF  DEFENDANT  TO  COMPROMISE. 

§  99  7.    Proceedings  on  offer  of  the  defendant  to  compromise  after  suit  brought. 

§  997.  Proceeding's  on  offer  of  the  defendant  to  compromise  after  suit 
brought.  The  defendant  may,  at  any  time  before  the  trial  or  judgment, 
serve  upon  the  plaintiff  an  offer  to  allow  judgment  to  be  taken  against  him 
for  the  sum  or  property',  or  to  the  effect  therein,  specified.  If  the  plaintiff 
accept  the  offer,  and  give  notice  thereof  within  five  days,  he  may  file  the 
offer,  with  proof  of  notice  of  acceptance,  and  the  clerk  must  thereupon 
enter  judgment  accordingly.  If  the  notice  of  acceptance  be  not  given,  the 
offer  is  to  be  deemed  withdrav/n,  and  cannot  be  given  in  evidence  upon  the 
trial;  and  if  the  plaintiff  fail  to  obtain  a  more  favorable  judgment,  he  can- 
not recover  costs,  but  must  pay  the  defendant's  costs  from  the  time  of  the 
offer. 
Offer.  ■  Construction  of  section.     The  true  mean- 

I:  Kiv"lenrt!ft°Sder^°^^osV:r2'674.  j^^  °f   this   section,   authorizing  the   clerk 

Compare  ante,  §  895.  to   enter  .judgment   upon   an    offer   on    the 

Judgment  by  confession.    Post,  §  1132.  part  of  the  defendant  to  suffer  judgment 

Legislation  §  997.  1.  Enacted  Jfarch  11.  1872;  *'or  a  specified  sum,  is,  that  he  can  enter 
based  on  Practice  Act,  §  390  (New  York  Code.  judgment  only  where  the  offer  is  ma<le 
§385),  (1)  substituting  (.i)  "must"  for  "shall"  after  action  is  brought  bv  the  filing  of  the 
before      thereupon      and    before      iiav.      and     (b)  i    •    j.  j        ,  -T  "  -■•  u^  v^i    k    v^ 

"is  to"  for  "shall"  before  "be  deemed."  and   (2)        complaint,   and   while   pending;    and   where 
"cannot"   for  "shall  not,"   in  both   instances.  a  partv  hands  to  the  clerk   the  comidaint, 

2.  Amended  by  Code  Aradts.  1873-74,  p.  342,  offer  of  -iudo-inent  ami  nnti,f>  nf  neepnf- 
(1)  substituting  "the  offer,  with  proof."  for  "the  °  ^^  ^l  lU(ij,menr,  ana  notii  e  or  actept- 
summons,  complaint,  and  offer,  with  an  affidavit."  ance  or  the  offer,  at  the  same  time,  and 
and  (2)  inserting  "upon  the  trial"  after  "evi-  the  clerk  thereupon  enters  judgment,  it 
■^T.^'Amendment  bv  Stats.  1901,  p.  177;  ua-  ^^  joi^.  and  not  merely  irregular;  to  hold 
constitutional.    See  note  ante,  §  5.  Otherwise    would    Simply    be    to    hold    that 


997 


OFFER  OF  DEFENDANT  TO  COMPROMISE. 


1152 


the  safeguards  whicli  the  law  has  throwu 
around  confessions  of  judgment  by  a 
debtor,  and  which  cautionary  provisions 
are  for  the  security  of  creditors,  are  nuga- 
tory. Crane  v.  Hirshfelder,  17  Cal.  582. 
The  clear  meaning  of  this  section  is,  that 
the  plaintiff  shall  have  five  days  in  which 
to  consider  the  proposal  made  by  the  de- 
fendant, and  if,  in  the  meantime,  with- 
out acceptance  by  the  plaintiff  in  the 
manner  prescribed,  the  trial  shall  have 
regularly  progressed  and  been  concluded, 
the  offer  of  compromise,  as  against  the 
plaintiff,  simply  goes  for  naught.  Scam- 
mon  V.  Denio,  72  Cal.  393;  14  Pac.  98. 

Time  of  making  offer.  The  plaintiff 
may  proceed  to  trial  on  the  day  set,  with- 
out regard  to  the  defendant's  offer,  where 
such  offer  is  made  within  five  days  prior 
to  the  time,  as  at  that  time  the  offer  is 
of  no  avail,  and  the  defendant  cannot,  by 
making  the  offer  on  the  eve  of  trial,  when 
plaintiff  is  all  prepared,  and  his  expenses 
nearly  all  incurred,  compel  him,  on  the 
spur  of  the  moment,  to  determine  whether 
he  shall  yield  a  part  of  what  he  may  con- 
sider a  just  and  legal  claim,  or  run  the 
hazard  of  losing  all  his  costs  and  neces- 
sary disbursements,  and  having  judgment 
against  him  for  the  costs  of  the  other 
party.  Scammon  v.  Denio,  72  Cal.  393;  14 
Pac.  98. 

Manner  of  making  offer.  In  an  action 
of  tort,  the  defendant  has  the  right  to 
offer  to  permit  the  plaintiff  to  take  judg- 
ment in  a  specified  sum,  but  should  not 
accompany  his  pleading  of  tender  with  ex- 
planatory, apologetic,  or  extenuating  mat- 
ters in  no  way  going  to  the  defense  of  the 
action.  Easier  v.  Sacramento  Gas  etc.  Co., 
158  Cal.  514;  111  Pac.  530.  In  an  action 
brought  to  recover  state  and  county  taxes, 
the  clerk  of  the  superior  court  has  no 
power,  notwithstanding  an  order  of  court, 
to  enter  a  judgment  for  a  single  sum, 
which  is  less  than  the  amount  alleged  in 
the  complaint  to  be  due  for  state  tax, 
county  tax,  penalties,  etc.;  and  the  dis- 
trict attorney,  by  accepting  an  offer  to 
allow  a  judgment  for  less  than  the  amount 
fixed  by  the  state  board,  cannot  estop  the 
state  from  claiming  such  amount;  but 
where  the  action  is  brought  to  recover 
several  sums  to  be  specified  in  the  judg- 
ment, an  offer  may  be  made  to  allow  judg- 
ment for  one  of  such  sums,  or  for  sums 
less  than  the  respective  sums  claimed  in 
the  complaint,  but  in  order  to  authorize 
the  clerk  to  enter  a  judgment  for  the 
amounts  named  in  the  offer,  it  must  be 
specified  in  the  offer  in  what  sum  judg- 
ment will  be  allowed  for  state  and  in 
what  sum  for  county  taxes.  Sacramento 
County  V.  Central  Pacific  E.  R.  Co.,  61  Cal. 
25U. 

Tender  made  to  whom.  A  tender,  pend- 
ing suit,  may  be  made  to  the  opposite 
party   i)crsonally,   and   need  not   be   made 


to  his  attorney,  whose  authority  to  con- 
trol the  suit  does  not  preclude  such  tender. 
Ferrea  v.  Tubbs,  125  Cal.  687;  58  Pac.  308, 

Effect  of  refusal  of  tender.  A  tender 
of  the  amount  due  on  a  debt  secured  by 
mortgage,  made  after  the  debt  falls  due, 
does  not  release  the  lien  of  the  mortgage; 
if  the  tender  was  made  in  good  faith,  and 
was  intended  to  be  kept  good,  the  mort- 
gagor could  have  paid  the  money  into 
court  on  the  commencement  of  a  proceed- 
ing to  compel  the  mortgagee  to  accept  it, 
and  to  satisfy  the  mortgage.  Himmelmann 
V.  Fitzpatrick,  50  Cal.  650.  The  refusal 
by  the  plaintiff,  pending  his  appeal  from 
a  judgment,  of  a  valid  tender  made  to  him 
by  the  defendant,  operates  as  a  release  by 
the  plaintiff,  as  judgment  creditor,  of  all 
interest  which  would  otherwise  have  ac- 
crued thereon  after  the  date  of  the  tender. 
Ferrea  v.  Tubbs,  125  Cal.  687;  58  Pac. 
308.  Where  a  tender  is  made  of  the  full 
amount  due,  before  suit  is  brought,  which 
tender  is  kept  good  and  brought  into 
court,  the  judgment  should  be  for  the 
plaintiff  for  the  amount  tendered,  and  for 
the  defendant  for  costs.  Curiae  v.  Abadie, 
25  Cal.  502.  In  an  action  to  enforce  the 
specific  performance  of  an  agreement  to 
issue  stock,  where  the  defendant,  before 
suit,  tenders  such  stock  as  the  court  finds 
it  was,  under  the  terms  of  contract,  to 
deliver,  and  keeps  such  tender  good,  judg- 
ment should  be  for  the  plaintiff  for  such 
stock,  and  for  the  defendant  for  costs. 
Williams  v.  Ashurst  Oil  etc.  Co.,  144  Cal. 
619;  78  Pac.  28. 

Offer  to  accept  less  than  full  amount 
revoked  how.  An  offer  of  the  obligee  to 
accept,  in  full  satisfaction,  less  than  the 
amount  due  him,  made  before  the  com- 
mencement of  the  suit  on  the  obligation, 
is  revoked  by  the  commencement  of  the 
suit,  if  not  accepted  before  that  time. 
Peachy  v.  Witter,  131  Cal.  316;  63  Pac. 
468. 

Agreement  to  settle.  An  agreement  to 
settle  a  claim  upon  which  suit  has  not  been 
begun,  is  not  supported  by  a  sufficient  con- 
sideration, when  the  party  seeking  to  en- 
force it  knew  his  claim  to  be  groundless, 
and  did  not  assert  it  in  good  faith.  Snow- 
ball v.  Snowball,  164  Cal.  476;  129  Pac. 
784. 

Duty  of  clerk  in  entering  judgment.  In 
entering  judgments,  the  clerk  acts  merely 
in  a  ministerial  capacity:  he  must  follow 
closely  the  forms  provided  by  law  for 
the  exercise  of  the  power  conferred  upon 
him,  or  his  acts  are  invalid.  Old  Settlers 
Investment  Co.  v.  White,  158  Cal.  236; 
110  Pac.  922. 

Eecovery  of  costs.  A  defendant,  who 
pleads  a  tender,  to  entitle  himself  to  costs, 
must  not  only  aver  a  tender,  but  also  aver 
that  he  has  always  been  and  is  ready  to 
pay  the  sum  tendered,  and  the  money  must 
be  brought  into  court.   Bryan  v.  Maume,  28 


1153 


ATTORNEY  S  FEE — INSPECTION  OF  DOCUMENTS,  ETC. 


§1000 


Cal.  238.  The  failure  of  the  plaintiff  to 
accept  an  offer  of  compromise  does  not 
preclude  him  from  the  right  to  recover 
costs,  aIthouf;h  the  judgment  rendered  in 
his  favor  is  for  a  less  amount  than  the 
offer,  if  the  trial  is  concludctl  within  five 
<lays  after  the  offer  was  made.  Scammou 
V.  Denio,  72  Cal.  393;  14  Pac.  9S.  The 
plaintiff  may  recover  costs  accruing  in  his 
favor  before  an  offer  of  judgment  by  the 
defendant,  although  he  may  recover  a  less 
favorable  judgment  than  was  offered. 
Douthitt  v.  Finch,  Si  Cal.  214;  24  Pac. 
929.  Where  a  plaintiff,  after  the  refusal 
of  an  offer  to  compromise,  recovers  a  judg- 
ment within  the  superior  court's  jurisdic- 
tion, but  less  than  the  amount  offered,  he 
is  not  entitled  to  costs.  Murphy  v.  Casey, 
13  Cal.  App.  781;  110  Pac.  95G. 

Eight  to  attorneys'  fees.  An  insuffi- 
cient tender,  in  an  answer  to  an  action  to 
foreclose  a  mortgage,  cannot  defeat  the 
right  to  attorneys'  fees.  McCoy  v.  Buck- 
ley, 11  Cal.  App.  241;  104  Pac.  705. 

CODE  COMMISSIONERS'  NOTE.  The  cog- 
novit   WAS    good    83    an    admissiou    in    pais    after 


answer  filed.  It  micht  he  different  If  the  cog- 
novit was  set  aside  by  the  court  upon  good  cause 
shown.  If  judKment  had  bi-'n  entered  upon  the 
cou'iiovit,  «nd  by  its  autliority,  tlu-n  the  amount 
ai'Uiiowledged  would  have  been  the  sum  of  the 
ju(lf;ment.  liut  where,  upon  declaration  and 
answer  denying  the  facts  alleged,  the  acknowl- 
ed(;ment  is  used  as  evidence,  interi-st  may  be 
given  by  way  of  damages.  Hirschfield  v.  Frank- 
lin, 6  Cal.  609.  We  think  that  the  true  mean- 
ing of  the  statute  aiitborizing  judgment  to  be 
entered  by  the  clerk  upon  an  ofTer  on  the  part 
of  the  defendant  to  suffer  judgment  for  a  speci- 
fied sum,  etc.,  is  that  judgment  can  be  entered 
only  when  the  offer  is  made  after  action  is 
brought  and  while  pending.  To  hold  that  a 
party  may  make  out  a  complaint,  and  then  get 
the  defendant  to  acknowledge  service,  and  to 
offer  to  pay  all  or  a  portion  of  an  avsumed 
demand,  and  then  for  the  plaintiff  to  file  these 
papers  as  parts  of  an  entire  arranEement  with 
the  clerk  and  have  him  enter  judgment,  which 
would  be  binding,  is  simply  to  hold  that  the 
safeguards  which  the  law  has  tlirown  around 
confessions  of  judgment  by  a  debtor,  and  which 
cautionary  provisions  are  for  the  security  of 
creditors,  are  nugatory.  A  judgment  entered 
under  such  circumstances  would  be  void,  and  not 
merely  irrepular.  This  case  is  distinguished 
from  the  ca.se  of  Patrick  v.  Montader,  13  Cal. 
434,  which  was  a  case  of  mere  irregularity 
not  affecting  the  jurisdiction.  Cran*  v.  Hirsb- 
felder,  17  Cal.  584. 


CHAPTER  III. 

INSPECTION  OF  WEITINGS. 

§  1000.    A  party  may  demand  inspection  and  copy  of  a  book,  paper,  etc. 

§  1000.     A  party  may  demand  inspection  and  copy  of  a  book,  paper,  etc. 

Any  court  in  which  an  action  is  pending,  or  a  judge  thereof  may,  upon 
notice,  order  either  party  to  give  to  the  other,  within  a  specified  time,  an 
inspection  and  copy,  or  permission  to  take  a  copy,  of  entries  of  accounts  in 
any  book,  or  of  any  document  or  paper  in  his  possession,  or  under  his  con- 
trol, containing  evidence  relating  to  the  merits  of  the  action,  or  the  defense 
therein.  If  compliance  with  the  order  be  refused,  the  court  may  exclude 
the  entries  of  accounts  of  the  book,  or  the  document,  or  paper  from  being 
given  in  evidence,  or  if  wanted  as  evidence  by  the  party  applying,  may 
direct  the  jury  to  presume  them  to  be  such  as  he  alleges  them  to  be ;  and 
the  court  may  also  punish  the  party  refusing  for  a  contempt.  This  section 
is  not  to  be  construed  to  prevent  a  party  from  compelling  another  to  pro- 
duce books,  papers,  or  documents  when  he  is  examined  as  a  witness. 

of  discovery,  other  than  §§  1459,  1460, 
post,  applying  to  probate  proceedings,  is 
contained  in  this  section.  Levy  v.  Superior 
Court.  105  Cal.  600;  29  L.  R.  A.  811;  38 
Pac.  965.  This  section  cannot  be  so  used 
as  to  draw  a  drag-net  of  inspection 
through  all  the  books  of  the  other  party, 
under  the  ostensible  motive  of  trying  to 
catch  something  which  the  other  side  had 
testified  was  not  there,  in  the  mean  time 
exposing  all  the  private  business  of  the 
defendant,  his  dealings  with  persons  other 
than  the  plaintiff,  his  method  of  conduct- 
ing his  affairs,  perhaps  his  financial  con- 
dition, and  other  matters  vitally  important 
to  his  welfare:  there  is  no  warrant  in  law 
for  such  a  forcible  violation  of  a  person's 


Items  of  an  account.    Ante,  §  454. 

Compelling    production    of    books,    etc.     Post, 

§§  iunr,    et   seq.     See   also   post,    §§  1938,  1939. 
Contempt.    Post,  §§  1209  et  seq. 

Legislation  8  1000.  1.  Enacted  March  11, 
1872:  based  on  Practice  Act,  §  446  (New  York 
Code  §  388),  substituting  "is"  for  "shall"  in  last 
sentence. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  342, 
(1)  substituting  "entries  of  accounts  in  any 
book,  or  of  any  document"  for  "any  book,  docu- 
ment" ;  (2)  inserting  "the  entries  of  accounts  of" 
after  "exclude";  (3)  inserting  "or  the"  before 
"document,"  in  second  sentence;  and  (3)  substi- 
tuting "them"  for  "it"  after  "resume"  and  after 
"alleges." 

3.  Amended  by  Code  Amdts.  1880,  p.  72, 
omitting  "or  a  county  judge,"  after  "or  a  judge 
thereof,"   in  first   line. 

Construction  of  section.     The  only  pro- 
vision in  this  code,  in  the  nature  of  a  bill 
1  Fair. — 73 


1003 


INSPECTION   OF   WRITINGS — MOTIONS  AND   ORDERS. 


1154 


privacy.  Ex  parte  Clarke,  126  Cal.  235; 
77  Am.  St.  Eep.  176;  46  L.  R.  A.  835;  58 
Pac.  546. 

Showing  required  to  obtain  order.  There 
must  be  a  substantial  showing  that  the 
documeut  or  book  sought  for  contaius  ma- 
terial evidence  in  favor  of  the  party  ask- 
ing for  it:  an  inquisitorial  examination 
was  not  contemplated  by  the  framers  of 
the  statute.  Ex  parte  Clarke,  126  Cal.  235; 
77  Am.  St.  Eep.  176;  46  L.  R.  A.  835;  58 
Pac.  546. 

Order  granted  when.  Originally,  an  or- 
der for  the  production  of  a  paper,  docu- 
ment, or  book  vras  made  only  when  the 
document  was  one  declared  on  in  the  bill 
or  set  up  as  a  defense,  or  where  the  party 
asking  for  it  had  an  interest  in  the  docu- 
mei't  itself,  as  where  it  was  a  contract 
between  the  parties  and  only  one  copy 
existed,  or  where  the  instrument  was,  in 
the  very  nature  of  things,  material  evi- 
dence, as  where  it  was  alleged  to  be 
forged  or  altered,  and  that  it  would  on 
its  face  show  the  facts  alleged,  or  where 
the  books  belonged  to  both  parties,  as  in 
a  suit  between  partners,  or  principal  and 
agent,  or  trustee  and  beneficiary;  but, 
afterwards,  such  orders  were  extended  so 
as  to  include  other  grounds  for  the  pro- 
duction of  i^apers,  but  the  principles  ap- 
plicable generally  to  the  forced  production 
of  papers  are  as  above  stated.  Ex  parte 
Clarke,  126  Cal.  235;  77  Am.  St.  Rep.  176; 
46  L.  R.  A.  835;  58  Pac.  546. 

Undue  inquisition.  A  court  is  bound  to 
protect  a  party  against  undue  inquisition 
into  his  affairs;  and  it  would  be  difficult 
to  imagine  a  more  striking  instance  of 
undue  inquisition  than  an  order  comi^elling 
a  defendant  to  produce  for  inspection  all 
his  books,  upon  the  mere  suspicion,  against 
positive  evidence  to  the  contrary,  that 
they  might  possibly  contain  some  evidence 
favorable  to  the  plaintiff,  and  without 
pointing  to  any  particular  part  of  the 
books  over  which  this  suspicion  was  sup- 
posed to  hover.  Ex  parte  Clarke,  126  Cal. 
235;  77  Am.  St.  Rep.  176;  46  L.  R.  A.  835; 
58  Pac.  546. 

Inspection  of  original  documents.  Where 
the  defendant  has  forgotten  the  execution 


of  the  instruments  alleged,  or  doubts  the 
correctness  of  their  description  or  copy 
in  the  complaint,  he  should,  before  an- 
swering, take  the  requisite  steps  to  obtain 
an  inspection  of  the  original.  Curtis  v. 
Richards,  9  Cal.  34.  Whether  a  copy  of 
the  contract  upon  which  an  action  is 
based  is  or  is  not  set  forth  in  the  com- 
plaint, the  defendant  may  always  demand 
and  obtain  an  inspection  of  the  original 
by  pursuing  the  course  prescribed  in  this 
section;  and  if,  upon  such  inspection,  it 
appears  that  the  complaint  misrepresents 
the  contract,  or  has  omitted  a  substantial 
part  of  it,  such  misrepresentation  or  omis- 
sion is  a  matter  of  defense,  but  it  is  not 
available  as  a  ground  of  general  demurrer, 
because  it  does  not  appear  upon  the  face 
of  the  complaint.  Byrne  v.  Luning  Co., 
4  Cal.  Unrep.  895;  38  Pac.  454.  Where 
deeds  or  other  documents  have  been  ad- 
mitted in  evidence,  the  opposing  counsel 
have  a  right  to  inspect  them  at  any  time 
during  the  progress  of  the  trial:  it  will 
not  be  inferred  on  appeal  that  no  damage 
resulted  from  a  refusal  to  permit  such  in- 
spection. Pope  v.  Dalton,  40  Cal.  638. 
Copies  of  records,  called  for  in  the  taking 
of  a  deposition,  in  which  such  copie"  are 
incorporated,  are  as  admissible  as  any 
other  part  of  the  deposition,  without  a 
production  of  the  original  records.  Madera 
Ry.  Co.  v.  Raymond  Granite  Co.,  3  Cal. 
App.  668;  87  Pac.  27. 

Production  of  documents  by  witness. 
The  production  of  documents  by  a  witness, 
when  his  examination  discloses  the  posses- 
sion of  or  control  over  the  same,  is  within 
the  meaning  of  the  last  sentence  of  this 
section.  Morehouse  v.  Morehouse,  136  Cal. 
332;  68  Pac.  976. 

Power  to  compel  production  of  books  and 
papers.     See  note   41   Am.   St.  Rep.   388. 

Effect  of  calling  for  and  inspecting  document 
to  make  it  admissible  in  evidence.  See  note  33 
L.  R.  A.  (N.  S.)  552. 

CODE      COMMISSIONERS'    NOTE.      A    court 

may  order  a  party  to  produce  books  and  papers 
before  the  court.  Barnstead  v.  Empire  Mining 
Co.,  5  Cal.  299.  The  opposing  counsel  have  the 
right  to  inspect,  at  any  time  during  the  progress 
of  the  trial,  all  papers,  books,  deeds,  or  other 
documents  which  have  been  admitted  in  evi- 
dence.   Pope  V.  Dalton,  40  Cal.  638. 


CHAPTER  IV. 
MOTIONS  AND  ORDERS. 


§  IOCS.     Order  and  motion  defined. 

I  1004.     Motions  and  orders,  where  made. 

§  1005.     Notice  of  motion.     When  must  be  given. 


§  1006.     Transfer  of  motions  and  orders  to  show 

cause. 
§  1007.     Orderforpaymentof  money, how  enforced. 


§  1003.  Order  and  motion  defined.  Every  direction  of  a  court  or  judge, 
made  or  entered  in  writing,  and  not  included  in  a  judgment,  is  denominated 
an  order.     An  application  for  an  order  is  a  motion. 


Motion. 

1.  Heard  before  court  commissioners. 
§  259,  subd.  1. 

2.  Notice  of.    Post,  §  1005. 


Order. 

1.   Enforcement.    Ante.  §  128,    subd.   4. 
■'i-nte,  2.   Final  effect  of,  as  estoppel.    Post,  §  1908. 

3.  Renewing  application  for.    Ante,  §§  182,  183. 

4.  Vacating.    Ante,  §  937. 


1155 


ORDERS  AND   MOTIONS — DEFINITIONS. 


§1003 


Legislation  8  1003.  EnactPd  March  11,  1S72; 
re-enaclmi'ut  of  Practice  Act,  §515  (New  York 
Code,  §  400). 

Construction  of  section.  In  the  enaot- 
nieut  of  tliis  scctioii  there  was  no  intention 
of  abolishing  the  power  of  a  court  of 
equity  to  pronounce  what  in  equity  prac- 
tice was  called  an  interlocutory  decree  or 
decretal  order,  but  only  to  provide  that 
that  which  finally  determined  the  rijjhts 
of  the  parties  should  be  called  a  judgment, 
and  that  every  other  direction  of  a  court 
or  judge,  made  or  entered  in  writing, 
should  be  denominated  an  order.  Thomp- 
son V.  "White.  6:!  ('al.  50.J. 

Conflict  of  sections.  No  prohibition  of 
such  intermediate  deterniiiuitions  by  a 
court  of  equity  as  the  exigencies  of  a  case 
may  demand  is  made  by  this  section,  and 
it  is  not  in  conflict  with  §  1S7,  ante. 
Thompson  v.  White,  63  Cal.  505. 

Order,  defined  and  illustrated.  In  a 
legal  sense,  an  order  means  a  decision 
given  in  an  action  pending,  and  during  the 
progress  thereof.  Nellis  v.  .Justices'  Court, 
20  Cal.  App.  394;  129  Pac.  472.  An  or- 
der, as  distinguished  from  a  final  judg- 
ment, is  the  judgment  or  conclusion  of 
the  court  upon  any  motion  or  proceeding. 
Estate  of  Rose,  80  Cal.  166;  22  Pac.  86. 
An  order  is  the  judgment  or  conclusion  of 
the  court  or  judge  upon  any  motion  or 
proceeding,  and  includes  cases  where 
affirmative  relief  is  granted,  or  where  re- 
lief is  denied.  Oilman  v.  Contra  Costa 
County,  8  Cal.  52;  68  Am.  Dec.  290.  An 
order  is  a  decision  made  during  the  pro- 
gress of  the  cause,  either  prior  or  subse- 
quent to  final  judgment,  settling  some 
point  of  practice,  or  some  question  col- 
lateral to  the  main  issue  presented  by  the 
pleadings,  and  necessary  to  be  disposed  of 
before  such  issue  can  be  passed  upon  by 
the  court,  or  necessary  to  be  determined 
in  carrying  into  execution  the  final  judg- 
ment. Loring  v.  Illsley,  1  Cal.  24;  Estate 
of  Smith,  98  Cal.  636;  33  Pac.  744.  The 
action  of  the  court  upon  the  demand  for 
a  change  of  the  place  of  trial  is  an  order. 
Bohn  V.  Bohn,  16  Cal.  App.  182;  116  Pac. 
568.  A  paper  signed  by  the  justices  of 
the  supreme  court,  extending  the  time  to 
file  a  transcrij^t,  is  an  order  of  court,  be- 
fore the  filing  thereof.  Desmond  v.  Faus, 
83  Cal.  134;  23  Pac.  303.  An  order  of 
sale  of  mortgaged  premises,  for  the  entire 
debt,  after  its  maturity,  made  upon  mo- 
tion after  judgment  of  foreclosure  and 
sale,  is  an  order  made  after  judgment. 
Byrne  v.  Hoag,  126  Cal.  283;  58  Pac.  688. 
A  judgment  refusing  to  admit  a  will  to 
probate  is  not  a  final  judgment,  but  an 
order  of  the  court,  and  an  order  subse- 
quent thereto  is  not  an  order  made  after 
final  judgment.  Estate  of  Smith,  9S  Cal. 
636;  33  Pac.  744.  A  mere  memorandum, 
entered  in  the  rough  minutes  of  the  clerk, 
is    not    an    order.      Brpwnell   v.   Superior 


Court,  157  Cal.  703;  109  Pac.  91.  A  rul- 
ing made  during  the  jirogress  of  a  trial, 
either  admitting  or  excluding  evidence,  is 
not  an  order,  within  the  meaning  of  thi»j 
section.  McGuire  v.  Drew,  83  Cal.  225; 
23  Pac.  312.  A  mere  declaration  by  the 
judge,  that  an  injunction  is  no  longer  in 
force,  not  being  a  "direction,"  <loes  not 
constitute  an  "order."  Devlin  v.  Rvdberg, 
132  Cal.  324;  64  Pac.  390.  An  oVder  is 
not  a  judgment.  Scott  v.  Shields,  8  Cal. 
App.  12;  96  Pac.  385.  An  interlocutory 
decree  is  an  order,  and  not  a  judgment, 
in  so  far  that,  except  where  expressly 
provided  by  statute,  an  appeal  does  not 
lie,  but  it  may  be  reviewed  upon  an  ap- 
peal from  the  judgment.  Watson  v.  Sutro, 
77  Cal.  609;  20  Pac.  88.  An  interlocutory 
decree  settling  the  account  of  an  admin- 
istrator, is  not  a  final  judgment,  but  a 
mere  order.  Estate  of  Rose,  80  Cal.  166; 
22  Pac.  86.  An  order  of  a  justice  of  the 
peace,  under  proceedings  supplementary  to 
execution,  requiring  the  judgment  debtor 
to  apply  designated  property  to  the  satis- 
faction of  the  judgment,  does  not  consti- 
tute a  judgment,  within  the  meaning  of 
§974,  ante.  Wells  v.  Torrance,  119  Cal. 
437;  51  Pac.  626. 

Character  of  order  as  determined  by  its 
contents.  The  character  of  the  court's 
action  or  direction  is  to  be  determined  by 
the  nature  of  the  action  itself,  considered 
in  the  light  of  the  authority  of  the  court 
in  the  premises,  rather  than  by  what  it 
is  designated  by  the  court:  a'  direction 
for  a  further  sale  of  mortgaged  premises, 
under  §  728,  ante,  is  an  order,  although 
designated  by  the  court  a  "decree  of  fore- 
closure and  order  of  sale."  Evrne  v.  Hoag, 
126  Cal.  283;  58  Pac.  688'  Where  an 
order,  required  to  be  made  by  the  court, 
is  entitled  and  filed  in  the"  court,  and 
bears  the  seal  of  the  court,  it  will  not  be 
considered  as  an  order  of  the  judge  at 
chambers,  although  in  drafting  the  onler 
the  judge  employs  the  introductory  phrase, 
"It  appearing  to  me,"  and  in  the  testatum 
clause  says,  "In  witness  whereof,  I  have 
hereunto  set  my  hand,"  etc.  Oaks  v. 
Rodgers,  48  Cal.  197. 

Ex  parte  orders.  The  substitution  of  an 
executor,  upon  the  suggestion  of  the  death 
of  a  party  to  the  action,  may  be  made 
upon  an  ex  parte  application.  Campbell  v. 
West,  93  Cal.  653;  29  Pac.  219.  An  ex 
parte  order  allowing  an  intervention  mav 
be  properly  made.  Kimball  v.  Richardson- 
Kimball  Co.,  Ill  Cal.  386;  43  Pac.  1111. 

Discretion  of  court  in  making  order. 
Where  the  allowance  of  an  order  rests  in 
the  discretion  of  the  court,  the  exercise 
of  the  power  must,  in  a  great  degree, 
depend  upon  the  special  circumstances  of 
the  case,  and  be  so  governed  as  to  prevent 
delays  and  to  promote  justice;  and  where 
no  meritorious  defense  is  asserted,  and  no 
leave  to  answer  is  asked,  iu  the  court  be 


1003 


MOTIONS  AND   ORDERS. 


1156 


low,  the  appellate  court  will  not  reverse 
the  judgmeut  and  open  the  case  for  an- 
other trial.  Thornton  v.  Borland,  12  Cal. 
439. 

Jurisdiction  presumed.  Where  a  court 
makes  an  order,  and  it  does  not  appear 
upon  the  face  of  the  record  that  it  did 
not  have  jurisdiction  to  make  it,  it  will 
be  presumed,  in  a  collateral  attack,  that 
the  parties  were  before  the  court,  and  that 
the  proper  proceedings  were  had  to  author- 
ize the  court  to  make  the  order.  Clark  v. 
Sawyer,  48  Cal.  133. 

Entry  of  orders.  The  order  of  the  court 
should  be  entered  in  such  terms  as  to  ex- 
press with  precision  the  object  to  be 
attained.  Jenkins  v.  Frink,  27  Cal.  337. 
It  is  the  duty  of  the  clerk  to  enter  the 
motion,  and  the  order  made  thereon,  in  the 
minutes  of  the  court,  and  the  entry  should 
state,  in  substance,  the  grounds  on  which 
the  motion  is  based,  as  stated  by  counsel 
making  it,  but  these  grounds  need  not,  in 
all  eases,  be  entered  in  full  in  the  minutes; 
and  if  counsel  refers  to  any  document  filed 
in  the  case  for  a  statement  of  the  grounds 
of  the  motion,  the  entry  may,  and  for 
the  sake  of  brevity  should,  refer  to  the 
same  document.  Williams  v.  Hawley,  144 
Cal.  97;  77  Pac.  762.  An  order  to  the 
clerk  to  enter  in  the  minutes,  nunc  pro 
tunc,  an  order  alleged  to  have  been  made 
in  open  court,  cannot  properly  be  made  by 
the  judge  at  chambers,  where  there  is 
nothing  in  the  record  to  show  that  such 
order  was  made.  Hegeler  v.  Henckell,  27 
Cal.  491.  An  order  nunc  pro  tunc  may  be 
made  to  correct  a  mistake  in  failing  to 
enter  an  order  which  was  actually  made, 
or  which  should  have  been  made  as  a 
matter  of  course;  but  an  omission  to  make 
an  order  dispensing  with  an  appeal  bond 
cannot  be  supplied  by  an  order  nunc  pro 
tunc  after  the  time  for  making  it  has 
elapsed.  Estate  of  Skerrett,  80  Cal.  62; 
22  Pac.  8.5.  Where  an  order  appealed  from 
was  actually  made,  but  was  not  entered 
upon  the  record,  the  appellate  court  may 
grant  leave  to  have  an  order  entered  nunc 
pjro  tunc  certified  up,  and  if  it  appears  to 
be  the  proper  order,  it  is  sufficient.  Lee 
Chuck  V.  Quan  Wo  Chong  Co.,  81  Cal.  222; 
15  Am.  St.  Rep.  50;  22  Pac.  594.  The 
proof  of  service  of .  summons  may  be 
amended,  after  judgment  entered,  by  in- 
serting a  fact  omitted  from  the  affidavit, 
and  order  allowing  such  amendment  en- 
tered nunc  pro  tunc  as  of  a  date  before 
judgment.  V^oodward  v.  Brown,  119  Cal. 
283;  63  Am.  St.  Rep.  108;  51  Pac.  2.  The 
court  has  jurisdiction  to  have  an  order 
entered  nunc  pro  tunc,  substituting  par- 
ties plaintiff;  and  its  action  in  making 
such  order  is  conclusive  against  any  col- 
lateral attack.  Crim  v.  Kessing,  89  Cal. 
478;  23  Am.  St.  Rep.  491;  26  Pac.  1074. 
The  clerk  has  no  authority  to  enter  upon 
the  minutes  of  the  court  a  certified  coj^y 


of  an  order,  without  any  direction  of  the 
court  therefor.  Devlin  v.  Rydberg,  132 
Cal.  324;  64  Pac.  396.  The  validity  of  an 
order  does  not  depend  upon  the  entry  by 
the  clerk,  but  upon  the  fact  that  the  order 
has  been  made;  and  whenever  it  is  shown 
that  an  order  has  been  made  by  the  court, 
it  is  as  effective  as  if  it  had  been  entered 
of  record  by  the  clerk.  Niles  v.  Edwards, 
95  Cal.  41;  30  Pac.  134.  There  is  no  pro- 
vision of  law  requiring  that  all  orders  of 
a  court  shall  be  entered  at  length  in  its 
minutes,  in  order  that  they  may  be  effect- 
ive; and  every  direction  of  a  court  or 
judge  is  an  order,  whether  merely  made 
in  writing  or  entered  in  the  minutes;  but 
if  it  is  not  entered,  it  should  be  filed,  so 
that  it  may  form  a  part  of  the  record  in 
the  case.  Von  Schmidt  v.  Widber,  99  Cal. 
511;  34  Pac.  109. 

Orders  proved  by  records.  The  records 
of  a  court  are  the  best  evidence,  and  the 
only  evidence,  of  the  orders  made  by  it. 
Clark  V.  Crane,  57  Cal.  629. 

Certified  copy  of  order.  A  certified  copy 
of  an  order  required  to  be  furnished  on 
an  appeal  should  be  furnished  and  certi- 
fied by  the  clerk  of  the  court  making  the 
order,  and  in  whose  minutes  it  is  entered. 
Mansfield  v.  O'Keefe,  133  Cal.  362;  65  Pac. 
825. 

Contempt  for  disobeying  order.  A  party 
is  not  in  contempt  of  court  for  not  com- 
plying with  an  unauthorized  or  unlawful 
order.  Hennessy  v.  Nicol,  105  Cal.  138;  38 
Pac.  649. 

Modifying  or  vacating  orders.  A  condi- 
tional order,  vacating  a  sale  by  assignees 
in  insolvency,  cannot  be  amended  so  as  to 
become  absolute,  without  notice  to  the 
purchaser.  Thompson  v.  Superior  Court, 
119  Cal.  538;  51  Pac.  863.  An  order  made 
without  notice  may  be  set  aside  without 
notice;  hence,  if  an  order,  made  without 
notice,  setting  aside  an  order  also  made 
without  notice,  is  void,  it  follows  that  the 
first  order  was  also  void.  Coburn  v.  Pacific 
Lumber  etc.  Co.,  46  Cal.  32.  Orders  im- 
providently  and  unintentionally  made  may 
be  set  aside,  but  the  parties  interested 
have  a  right  to  be  heard  on  the  question, 
and  are  entitled  to  notice;  that  a  given  or- 
der was  so  made  will  not  be  presumed  on 
appeal,  but  the  fact  must  be  affirmatively 
shown.  Wunderlin  v.  Cadogan,  75  Cal.  617; 
17  Pac.  713.  An  order  made  through  in- 
advertence or  mistake  may  be  set  aside; 
and  if  the  question  of  mistake  or  inad- 
vertence is  disputed,  the  decision  of  the 
judge  upon  any  controverted  fact  is  not 
open  to  review.  People  v.  Curtis,  113  Cal. 
68;  45  Pac.  180.  An  interlocutory  decree, 
or  decretal  order,  may  be  entered  in  equity 
cases,  and  in  cases  other  than  those  in  par- 
tition; it  is  not  conclusive,  but  may  be 
mollified  on  the  final  hearing,  as  the  law 
and  the  evidence  may  require.  Thomp- 
son   V.   White,    76    Cal.    381;    18   Pac.   399. 


1157 


MOTION — APPLICATION — LEAVE  TO  RIJNEW. 


§  1003 


An  order  obtained  by  means  of  an  artifice 
and  trick  practiced  uj>on  the  court  may 
be  set  aside  bv  the  court  that  made  it. 
Page  V.  Page,  "77  Cal.  83;  19  Pac.  183. 
The  judge  of  the  court,  having  made  an 
order  ui)un  which  the  parties  have  acted, 
cannot,  v^'ithout  any  statutory  authority, 
change  his  mind  and  discharge  his  order: 
such  action  of  the  judge  would  lead  to 
great  uncertainty,  inconvenience,  and  in 
some  cases  to  wrong  and  injustice;  hence, 
a  judge,  having  directed  a  stay  of  execu- 
tion ujion  the  giving  of  an  undertaking, 
cannot  arbitrarily  set  aside  his  stay  after 
the  order  is  perfected.  Lee  Chuck  v.  Quan 
Wo  Chong  Co.,  81  Cal.  222;  15  Am.  St. 
Ee]>.  r-,0;  22  Pac.  594. 

Motion  and  application,  defined.  A 
motion  is  an  application  for  an  order. 
Brownell  v.  Superior  Court,  157  Cal.  703; 
109  Pac.  91.  A  motion  is  an  application 
for  an  order  or  direction  of  the  court  not 
included  in  a  judgment.  Estate  of  Har- 
rington, 147  Cal.  124;  109  Am.  St.  Kcp. 
118;  81  Pac.  546.  The  application  made 
upon  the  demand  for  a  change  of  the  place 
of  trial  is  designated  a  motion.  Bohn  v. 
Bohn,  16  Cal.  App.  179;  116  Pac.  568. 
"Motion"  and  "application"  are  really  the 
same  thing.  Weldon  v.  Rogers,  151  Cal. 
432;  90  Pac.  1062. 

What  constitutes  a  motion.  A  motion 
is  jM-operly  an  application  for  a  ruling  or 
order,  made  viva  voce  to  a  court  or  judge. 
It  is  distinguished  from  the  more  formal 
applications  for  relief  by  petition  or  com- 
jilaint.  The  grounds  of  the  motion  are 
often  required  to  be  stated  in  writing  and 
filed,  and  in  practice  the  form  of  the 
application  itself  is  often  reduced  to  writ- 
ing and  filed;  but  the  making  up  and  filing 
of  the  application  itself  is  not  the  making 
of  a  motion.  If  nothing  more  were  done, 
it  would  not  be  error  in  the  court  entirely 
to  ignore  the  proceeding.  The  attention 
of  the  court  must  be  called  to  it,  and  the 
court  must  be  moved  to  grant  the  order. 
People  V.  Ah  Sam,  41  Cal.  645.  A  verified 
petition  to  compel  a  receiver  to  pay  over 
funds  to  the  petitioner  is  in  the  nature 
of  a  motion,  in  which  the  moving  party 
makes  a  prima  facie  case  by  his  sworn 
statement;  and  it  is  immaterial  whether 
the  statement  be  termed  a  com|ilaint,  or  a 
petition  in  the  nature  of  a  complaint,  or 
an  affidavit,  it  being  evidence  which  is  to 
be  met  at  the  hearing  upon  the  order  to 
show  cause;  and  if  not  so  met,  the  court 
is  authorized  to  treat  the  statements  of 
the  verified  petition  as  established  facts. 
California  Title  Insurance  etc.  Co.  v.  Con- 
solidated Piedmont  Cable  Co.,  117  Cal.  237; 
49  Pac.  1. 

Motion  may  be  made  by  whom.  One 
who  is  not  a  party  to  a  proceeding  cannot 
make  a  motion  therein.  Estate  of  Aveline, 
53  Cal.  259. 

Successive  motions.  A  motion  to  open 
a  default  and  a  motion  to  vacate  a  judg- 


ment may  be  separate  and  distinct  from 
each  other,  and  dejicnd  upon  a  different 
record,  and  seek  a  different  relief;  and  a 
party  is  not  j)recluded  from  making  one  of 
these  motions  because  the  other  has  been 
denied.  Thompson  v.  Alford,  128  Cal.  227; 
60  Pac.  686. 

Time  to  file  counter-afi&davits  on  motion. 
The  granting  of  time  to  file  couiitcr-alli- 
davits  on  motion  is  a  matter  within  the 
discretion  of  the  court.  Pierson  v.  Mc- 
Cahill,22Cal.  127. 

Judicial  notice  in  determining  motion. 
In  all  motions  before  a  .judge,  during  the 
progress  of  a  trial,  he  may  act  on  his  own 
knowledge  in  regard  to  things  which,  in 
their  nature,  are  better  known  to  himself 
than  they  could  be  to  others.  Southern 
California  Motor  Road  Co.  v.  San  Ber- 
nardino Nat.  Bank,  100  Cal.  316;  34  Pac. 
711. 

Leave  to  renew  motion.  If,  after  the 
decision  of  a  motion,  it  is  desired  to  pre- 
sent any  new  facts  for  the  consideration 
of  the  court,  the  proper  practice  is  to  ask 
for  leave  to  renew  the  motion;  and  if  it 
is  desired  to  review  the  action  of  the  court 
upon  an  appeal,  it  is  sufficient  to  present 
the  order  in  connection  with  a  bill  of  ex- 
ceptions containing  the  matter  upon  which 
the  court  based  its  action.  Harper  v.  Hil- 
dreth,  99  Cal.  265;  33  Pac.  1103.  Leave  to 
renew  a  motion  may  be  given  after  the 
original  motion  has  been  denied.  Hitch- 
cock V.  McElrath,  69  Cal.  634;  11  Pac.  487; 
and  see  Kenney  v.  Kelleher,  63  Cal.  442. 
It  is  quite  usual,  when  a  motion  is  denied, 
which  the  moving  party  desires  to  renew, 
to  have  the  entry  show  that  it  was  denied 
without  prejudice;  but  leave  to  renew  need 
not  be  given  at  the  time  of  the  denial:  it 
may  be  given  at  any  time  afterwards,  as 
well;  and  when  given,  it  may  be  acted 
upon.  Bowers  v.  Cherokee  Bob,  46  Cal. 
279.  Leave  to  renew  a  motion  may  be 
given  after  the  original  motion  is  denied, 
and  the  granting  or  refusal  of  leave  is 
within  the  legal  discretion  of  the  court, 
and  will  not  be  interfered  with,  except 
in  case  of  abuse;  and  it  is  not  an  abuse 
of  discretion  to  grant  leave  upon  the  same 
facts  more  fully  stated.  Kenney  v.  Kelle- 
her, 63  Cal.  442.  In  all  ordinary  motions, 
where  the  jurisdiction  is  not  limited  by 
statute,  it  is  discretionary  with  the  court 
or  judge  hearing  and  denying  the  motion, 
to  grant  leave  for  its  renewal;  and  this 
discretionary  power  will  be  presumed  to 
have  been  properly  exercised,  unless  the 
contrary  appears.  Hitchcock  v.  McElrath, 
69  Cal."  634;  11  Pac.  487;  and  see  Bowers 
V.  Cherokee  Bob,  46  Cal.  279.  It  is  within 
the  discretion  of  the  court  to  allow  a  mo- 
tion to  be  renewed,  although  it  had  pre- 
viouslv  been  denietl.  Mace  v.  O'Reillev,  70 
Cal.  231;  11  Pac.  721.  The  doctrine  of 
res  adjudicata,  in  its  strict  sense,  does  not 
apply  to  motions  made  in  the  course  of 
practice,  such  as  a  motion  for  an  alias  writ 


§1004 


MOTIONS  AND   ORDERS, 


1158 


of  possession,  or  a  motion  for  an  order 
requiring  a  sheriff  to  execute  a  writ;  and 
the  court  may,  upon  proper  showing,  allow 
a  renewal  of  such  a  motion,  once  decided; 
but  such  leave  will  not  be  granted  unless 
a  new  state  of  facts  has  arisen  since  the 
former  hearing,  or  the  facts  were  not  then 
presented  by  reason  of  surprise  or  excus- 
able neglect  of  the  moving  party.  Ford  v. 
Dovle,  4  C'al.  635;  Bowers  v.  Cherokee  Bob, 
46"Cal.  279;  Kenney  v.  Kelleher,  63  Cal. 
442;  Estate  of  Hairin-ton,  147  Cal.  124; 
109  Am.  St.  Eep.  US;  81'Pac.  546. 

Error  in  granting  motion.  On  motion 
for  a  new  trial,  it  is  irregular  for  the  court, 
without  hearing  or  notice,  to  reverse  its 
first  judgment  and  render  a  contrary  one. 
Mitchell  V.  Hackett,  14  Cal.  661.  The  ab- 
sence of  counsel  for  the  opposing  party, 
at  the  time  set  for  the  hearing  of  the  mo- 
tion, which  resulted  in  a  certain  order, 
does  not  cure  or  waive  error  therein.  Ly- 
becker  v.  Murray,  5S  Cal.  186. 

Grounds  of  motion  and  of  review.  The 
provision  of  the  statute  indicating  the  gen- 
eral ground  or  reason  upon  which  the  mo- 
tion may  be  based,  as  that  an  attachment 
may  be  discharged  upon  the  ground  that 
the  writ  was  improperly  issued,  does  not 
obviate  the  necessity  of  specifying  the 
points  of  objection  upon  which  the  moving 
party  will  rely;  and  if  the  point  be  stated, 
it  may  be  possible  for  the  opposite  party 
to  answer  it,  and  the  object  of  the  rule 
is  to  give  him  a  fair  opportunity  to  do  so. 
Freeborn  v.  Glazer,  10  Cal.  337.  The  par- 
ticular grounds  upon  which  it  will  be  based 
should  be  stated  in  the  motion  for  a  new 
trial:  there  may  be  ample  grounds  for 
granting  the  motion  for  one  reason,  and 
none  whatever  for  another.  Williams  v. 
Hawley,  144  Cal.  97;  77  Pac.  762.  The 
only  ground  upon  which  a  motion  for  a 
nonsuit  can  be  reviewed  upon  appeal  is  that 
specifically  stated  when  the  motion  was 
made.  Bronzan  v.  Drobaz,  93  Cal.  647;  29 
Pac.  254.  Where  a  statement  of  errors  of 
law  occurring  at  the  trial,  and  of  the  in- 
sufficiency of  the  evidence  to  justify  the 
findings,  in  the  bill  of  exceptions,  shows 
the  grounds  of  the  motion  for  a  new  trial, 
a  reference  thereto  is  a  sufficient  statement 
of   the   grounds   of   the   motion.     Williams 

§  1004.  Motions  and  orders,  where  made.  IMotions  mnst  be  made  in  the 
county,  or  city  and  county,  in  which  the  action  is  pending.  Orders  made 
out  of  court  may  be  made  by  the  .judge  of  tlie  court  in  any  part  of  the  state. 

may  be   made  by  the  judge  of  the   court  in   any 
part  of  the   state." 

2.  Amended  by  Code  Amdts.  1880,  p.  12. 

Construction  of  section.  This  section 
onl}-  prescribes  the  venue  of  such  motions 
as  may  be  made  out  of  court,  but  it  does 
not  say  what  such  motions  are.  Larco  v. 
Casaneuava,  30  C'al.  560. 

What  business  must  be  transacted  in 
court.  The  general  rule  is,  that  all  judi- 
cial business  must  be  transacted  in  court; 


V.  Hawley,  144  Cal.  97;  77  Pac.  7G2.  An 
appeal  will  not  be  dismissed  for  want  of  a 
sufficient  undertaking,  where  such  is  not 
made  the  ground  of  the  motion,  as,  had 
such  ground  been  stated,  it  might  have 
been  made  to  appear  that  the  undertaking 
was  waived.  Clarke  v.  Mohr,  125  Cal.  540; 
58  Pac.  176.  Where  the  granting  of  a  mo- 
tion is  proper  on  one  of  the  grounds  stated, 
the  court  mav  disregard  the  other  grounds. 
Toy  V.  Haskell,  128  Cal.  558;  79  Am.  St. 
Eep.  70;  61  Pac.  89.  The  grounds  need 
not  be  stated  at  length  in  making  an  oral 
motion,  but  the  court  must,  in  some  way, 
be  informed  thereof,  and  this  may  be  done 
by  reference  to  some  paper  on  file  in  the 
action.  Williams  v.  Hawley,  144  Cal.  97; 
77  Pac.  762.  A  motion  in  an  action  for 
wrongful  death,  that  all  proceedings  be 
stayed  until  some  other  heir  or  heirs  are 
brought  in  as  parties,  is  properly  denied, 
in  the  absence  of  a  showing  of  the  ex- 
istence of  any  other  heirs.  Salmon  v. 
Eathjens,  152  Cal.  290;  92  Pac.  733. 

Mandamus  to  compel  determination  of 
motion.  Mandamus  will  issue  from  the  su- 
preme court  to  compel  a  superior  judge  to 
hear  and  determine  a  motion,  made  in  an 
action  pending  in  his  court,  for  a  change 
of  venue  to  the  place  of  residence  of  the 
defendant.  Hennessy  v.  Nicol,  105  Cal. 
138;  38  Pac.  649. 

What  entry  or  record  is  necessary  to  complete 
order.    See  note  28  L.  R.  A.  621. 

CODE  COMMISSIONERS'  NOTE.  There  ap- 
pears to  be  no  statute  of  limitations  against  a 
motion.  It  may  be  made  at  any  time  when 
there  is  no  unreasonable  delay.  Reynolds  v. 
Harris,  14  Cal.  668;  76  Am.  Dec.  459.  Ob- 
jection is  made  that  there  was  a  want  of  due 
notice  of  the  motion.  Verbal  notice,  it  is  true, 
is  not  such  notice  as  the  statute  requires.  When 
the  statute  speaks  of  notice,  it  means  written 
notice,  or  notice  in  open  court,  of  which  a 
minute  is  made  by  the  clerk.  Borland  v.  Thorn- 
ton, 12  Cal.  448.  An  application  for  an  order 
is  a  motion.  Jenkins  v.  Frink,  27  Cal.  337. 
If  a  party,  in  his  notice  of  motion,  asks  for  a 
specific  relief,  or  for  such  further  order  as 
may  be  just,  the  court  may  afford  any  relief 
compatible  with  the  facts  of  the  case.  People 
V.  Turner,  1  Cal.  152.  An  appeal  lies  from 
an  order  made  by  a  judge  at  chambers,  setting 
aside  an  e.xecution,  etc.  Bond  v.  Pacheco,  30 
Cal.  530.  See  also  §  166,  ante,  notes  3,  4,  5,  6, 
8,  commenting  on  Bond  v.  Pacheco,  30  Cal.  530, 
and  Larco  v.  Casaneuava,  30  Cal.  563. 


Power  of  judge  at  chambers.  Ante,  §§  165, 
166,  176. 

Court  commissioner's  control  of  ex  parte  mo- 
tions.   Ante,  §  259,  subd.  1. 


Legislation  §  1004.  1.  Enacted  March  11, 
1872:  based  on  Practice  Act,  §  516  (New  York 
Code,  §  401),  which  read:  "Motions  shall  be  made 
in  the  county  in  which  the  action  is  brought,  or 
in  an  adjoining  county  in  the  same  district." 
When  enacted  in  1872,  §  1004  read:  "Motions 
must  be  made  in  the  county  in  which  the  action 
is  pending,  or  in  an  adjoining  county  in  the 
same  judicial  district.      Orders  made  out  of  court 


1159 


CHAMBERS,  AND   COURT,   DEFINED — NOTICE  OF   MOTION. 


§  1005 


the  authority  to  transact  such  business  out 
of  court  is  exceptional,  and  does  not  exist, 
unless  expressly  authorized  by  statute. 
Carpenter  v.  Nutter,  127  Cal.  61;  59  Pac. 
301.  It  is  absolutely  essential  to  the  valid- 
ity of  a  judgment,  that  it  be  rendered  by  a 
court  of  competent  jurisdiction,  at  the  time 
and  place  and  in  the  form  prescribed  by 
law.  Norwood  v.  Kenfield,  34  Cal.  329.  An 
order  for  alimony  and  the  custody  of  chil- 
dren, pendente  lite,  can  only  be  made  by 
the  court  in  which  the  action  for  divorce 
is  pending,  Bennett  v.  Southard,  35  Cal. 
688. 

Business  done  in  chambers.  An  order 
dispensing  with  an  undertaking  on  appeal 
by  a  municipal  officer  may  be  made  by  a 
judge  of  the  superior  court  from  which  the 
appeal  is  taken,  by  a  writing  signed  by 
him  during  the  progress  of  another  trial, 
and  tiled  in  the  case,  but  not  entered  in 
the  minutes  of  the  court.  Von  Schmidt  v. 
Widber,  99  Cal.  511;  34  Pac.  109.  An 
order  extending  the  time  for  the  prepara- 
tion of  a  statement  or  bill  of  exceptions 
should  be  made  by  the  judge  who  tried  the 
case;  such  order  need  not  be  made  in  court, 
and  it  may  be  made  by  the  judge  in  any 
part  of  the  state.  Matthews  v.  Superior 
Court,  68  Cal.  638;  10  Pac.  128.  A  judge's 
chambers  are  not  confined  to  the  place  for 
the  usual  transaction  of  judicial  business 
not  required  to  be  done  in  open  court,  but 
chamber  business  may  be  done  wherever 
the  judge  may  be  found,  within  the  proper 
jurisdiction  of  the  court.  Estate  of  Lux, 
100  Cal.  593;  35  Pac.  341;  and  see  Von 
Schmidt  v.  Widber,  99  Cal.  511;  34  Pac. 
109. 

Acts  of  judge  as  acts  of  court.  Under 
the  present  constitution,  whenever  a  judge 
of  the  superior  court  is  present  at  the  place 
designated  for  the  transaction  of  judicial 
business,    and    there    assumes    to    transact 


such  business,  his  acts  may  be  considered 
as  the  acts  of  the  court  of  which  he  is  a 
jud<re.  Von  Schmidt  v.  Widber,  99  Cal. 
511;  34  Pac.  109. 

Court,  defined.  The  term  "court,"  as 
used  in  this  code,  means,  sometimes,  the 
place  where  the  court  is  held;  sometimes, 
the  tribunal  itself;  sometimes,  the  in- 
dividual presiding  over  the  tribunal;  in 
many  ca^es  it  is  used  synonymously,  as 
well  as  intercliani^eably,  with  the  term 
"judge";  and  whether  the  act  is  to  be  per- 
formed by  the  judge  or  the  court,  is  gen- 
erally to  be  determined  by  the  character 
of  the  act,  rather  than  by  the  designation. 
Von  Schmidt  v.  Widber,  99  Cal.  511;  34 
Pac.  109. 

CODE    COMMISSIONERS'   NOTE.      Where  the 

judge  who  tried  the  cause  goes  to  the  county 
in  his  district  not  adjoining  the  one  where  the 
trial  was  had,  to  hold  court,  before  the  time 
for  filing  amendments  to  the  statement  on  mo- 
tion for  a  new  trial  has  expired,  the  moving 
party  prosecutes  the  motion  with  due  diligence, 
if  he  brings  the  same  to  a  hearing  when  the 
judge  returns  or  .first  holds  court  in  a  county 
adjoining  the  one  in  which  the  case  was  tried. 
Warden  v.  Mendocino  County,  32  Cal.  658.  Sec- 
tion 137  of  the  Civil  Code  (concerning  divorces) 
provides  that  the  court  where  the  action  is  pend- 
ing may  make  an  order  for  the  support  of  the 
wife  and  the  maintenance  of  the  children  during 
the  progress  of  the  action.  Section  1004  of  the 
Code  of  Civil  Procedure  provides  that:  "Motions 
must  be  made  in  the  county  in  which  the  action 
is  pending,  or  in  an  adjoining  county  in  the 
same  judicial  district.  Orders  made  out  of 
court  may  be  made  by  the  judge  of  the  court 
in  any  part  of  the  state."  An  order  for  alimony 
and  for  the  custody  of  the  children  during  the 
pendency  of  the  suit,  can  only  be  made  by  the 
court  in  which  the  action  for  divorce  is  pend- 
ing. It  was  held  that  the  statute  concerning 
divorces  did  not  authorize  the  judge  at  chambers 
to  make  the  order,  and  the  application  must  be 
made  to  the  court.  Section  1004  of  this  code, 
above  quoted,  applies  only  to  such  motions  as 
the  judge  is  authorized  to  hear  at  chambers, 
and  what  these  motions  are  has  been  defined 
in  Bond  v.  Pacheco,  30  Cal.  532;  and  in  Larco 
v.  Casaneuava,  30  Cal.  564 ;  see  Bennett  v. 
Southard,  35  Cal.  691;  see  notes  to  §  166,  ante. 


§  1005.  Notice  of  motion.  When  must  be  given.  When  a  written  notice 
of  a  motion  is  necessary,  it  must  be  given,  if  the  court  is  held  in  the  county 
in  which  at  least  one  of  the  attorneys  of  each  party  has  his  office,  five  days 
before  the  time  appointed  for  the  hearing ;  otherwise,  ten  days.  When  the 
notice  is  served  by  mail,  the  number  of  days  before  the  hearing  must  be 
increased  one  day  for  ever>^  twenty-five  miles  of  distance  between  the  place 
of  deposit  and  the  place  of  service ;  such  increase,  however,  not  to  exceed 
in  all  thirty  days;  but  in  all  eases  the  court,  or  a  judge  thereof,  may  pre- 
scribe a  shorter  time. 


Written,    notice   must   be.    Post,  §  1010. 

Order  made  without  notice.    Ante,  §  937. 

Service  of  papers,  generally.  Post,  §§  1010  et 
seq. 

Legislation  §  1005.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act.  §  517  (New  York 
Code,  §  402).  which  read:  "When  a  written  no- 
tice of  a  motion  is  necessary,  it  shall  be  given, 
if  the  court  be  held  in  the  same  district  with 
both  parties,  five  days  before  the  time  appointed 
for  the  hearing;  otherwise,  ten  days:  but  the 
court  or  judge  may,  by  an  order  to  show  cause, 
prescribe  a  shorter  time."  When  §  1005  was  en- 
acted in  1872,  (1)  "must"  was  substituted  for 
"shall";  and  (2)  after  the  words  "ten  days,"  the 


section  was  changed  to  read,  beginning  a  new 
sentence,  "When  the  notice  is  served  by  mail,  the 
number  of  days  before  the  hearing  must  be  in- 
creased one  day  for  every  twenty-five  miles  of 
distance  between  the  place  of  deposit  and  the 
place  of  service;  such  increase,  however,  not  to 
exceed  in  all  ninety  days;  but  the  court,  or  judge, 
or  countv  judge,  mav  prescrit)e  a  shorter  time." 

2.  Amended  by  Code  Amdts.  1880,  p.  13,  to 
read  as  at  present,  except  for  the  amendment  of 
1907. 

3.  Amendment  by  Stats.  1901,  p.  177;  un- 
constitutional.    See  note  ante.  §  5. 

4.  Amended  by  Stats.  1907,  p.  601.  (1)  sub- 
Btituting  "is  held  in  the  county  in  which  at  least 


§1005 


MOTIONS  AND   OEDERS. 


1160 


©ne  of  the  attorneys  of  each  party  has  his  office" 
for  "be  held  in  the  same  county,  or  city  and 
county  with  both  parlies"  :  the  code  commissioner 
saying,  "The  amendment  allows  the  notice  of  mo- 
tion to  be  for  tive  days  whenever  the  court  is 
held  in  the  county  in  which  one  of  the  attorneys 
has  his  office.  This  is  the  rule  of  court  already 
adopted  in  most  jurisdictions  of  the  superior 
cotirt,  and  the  amendment  makes  the  practice 
uniform  throughout  the  state." 

ApplicatiOH  of  section.  This  section  lias 
no  application  in  cases  where  a  party  re- 
ceives notice  to  which  he  is  not  entitled; 
and  where  the  court  chooses  to  give  notice, 
it  may  be  of  such  length  as  the  court  sees 
fit.    Mudd  V.  Mudd,  98  Cal.  320;  33  Pac.  114. 

Necessity  of  notice.  A  rule  of  court  es- 
tablishing regular  days  for  the  hearing  of 
motions,  does  not  dispense  with  the  notice 
required  bv  the  code.  Bohn  v.  Bohn,  164 
Cal.  532;  129  Pac.  981. 

Motions  placed  on  calendar  how.  A  mo- 
tion to  change  the  place  of  trial,  like  a  de- 
murrer filed,  goes  upon  the  calendar,  to  be 
called  for  hearing  in  the  regular  order  of 
business.  Bohn  v.  Bohn,  16  Cal.  App.  182; 
116  Pac.  568. 

Notice,  what  constitutes.  An  order  to 
show  cause  why  a  commission  to  take  tes- 
timony should  not  issue,  when  served  upon 
the  adverse  party,  is  equivalent  to  a  notice 
of  motion,  and  no  further  notice  is  required, 
Dambmann  v.  White,  48  Cal.  439. 

Form  and  contents  of  notice.  A  demand 
for  a  change  of  the  place  of  trial  is  not 
such  a  motion  as  requires  written  notice, 
under  this  section.  Bohn  v.  Bohn,  16  Cal. 
App.  182;  116  Pac.  568. 

Waiver  of  written  notice.  Even  if  writ- 
ten notice  were  necessary  upon  an  applica- 
tion for  a  change  of  the  place  of  trial,  it  is 
waived  where  counsel  appears  and  resists 
the  application.  Bohn  v.  Bohn,  16  Cal.  App. 
182;  116  Pac.  568. 

Notice  of  motion  as  affecting  order. 
Where  a  party,  in  his  notice  of  motion 
served  on  the  adverse  party,  asks  for  a 
specific  relief,  or  for  such  other  or  further 
order  as  may  be  just,  the  court  may  afford 
any  relief  compatible  with  the  facts  of  the 
case  presented.  People  v.  Turner,  1  Cal. 
152.  A  notice  of  a  motion  to  discharge  a 
writ  of  attachment  should  specify  the 
grounds  of  the  motion,  and  wherein  it  will 
be  urged  that  the  writ  was  improperly  is- 
sued: a  notice  of  motion  to  dissolve  an 
attachment,  "because  the  said  writ  was 
improperly  issued,"  is  insufficient.  Free- 
born v.  Glazer,  10  Cal.  337.  A  notice  of 
motion  for  judgment  upon  the  pleadings, 
specifying  that  it  would  be  made  "upon 
the  pleadings,  papers,  files,  and  records 
in  said  action,  and  upon  the  ground  that 
the  answer  on  file  herein  constitutes  no 
defense  to  the  cause  of  action,  or  any 
portion  thereof,  stated  in  complaint,"  is 
sufficient,  and  states  a  T)roper  ground  for 
the  motion.  Hearst  v.  Hart,  128  Cal.  327; 
60  Pac.  846. 

Time  of  notice.  The  non-residence  of 
the  plaintiff   cannot   affect   or   extend   the 


time  required  for  the  service  of  notice  of 
a  motion  to  dissolve  an  attachment.  Finch 
v.  MeVean,  6  Cal.  App.  272;  91  Pac.  1019. 
Where  the  notice  of  an  application  by  a 
plaintiff  for  an  injunction  was  given  for  a 
shorter  time  than  that  prescribed,  and  the 
defendant  does  not  appear  to  the  motion, 
the  order  granting  the  injunction  must  be 
deemed  to  have  been  made  without  notice, 
and  the  defendant  may,  ex  parte,  apply 
to  the  court  to  dissolve  it.  Johnson  v. 
Wide  West  Mining  Co.,  22  Cal.  479.  A 
filed  motion  to  retax  costa  need  not  be 
served;  but  notice  of  the  hearing  of  the 
motion  must  be  given  for  five  days,  unless 
the  court,  by  order,  shortens  the  time. 
Furtinata  v.  Butterfield,  14  Cal.  App.  25; 
110  Pac.  962. 

Notice  is  not  motion.  The  notice  of  mo- 
tion is  distinct  from  the  motion  itself, 
and  notice  alone  is  not  sufficient,  on  appeal, 
to  show  the  making  of  the  motion.  Herr- 
lich  V.  McDonald,  80  Cal.  472;  22  Pac.  299. 
The  mere  giving  of  notice  is  not  a  proceed- 
ing in  court;  and  where  the  place  of  trial 
of  an  action  is  changed,  it  is  not  necessary 
to  the  validity  of  a  motion  to  dissolve  an 
injunction  that  the  court  in  which  notice 
was  made  had  jurisdiction  at  that  time: 
it  is  sufficient  if  it  had  jurisdiction  when 
the  motion  was  made.  Younglove  v.  Stein- 
man,  SO  Cal.  375;  22  Pac.  189. 

Notice  as  part  of  record.  A  motion  may 
be  made  orallj',  though  it  is  better  practice 
to  have  it  made  in  writing,  or  entered  in 
the  minutes  of  the  court;  but  in  every  case 
where  it  is  desired  to  review  a  motion 
on  appeal,  it  should  be  made  part  of  the 
record  by  a  bill  of  exceptions,  showing 
that  the  motion  was  made,  and  the  ground 
upon  which  it  was  made:  it  is  not  suffi- 
cient to  embody  the  notice  of  the  motion 
in  the  record,  for  such  notice  is  distinct 
from  the  motion  itself;  and  error  in  the 
granting  of  a  motion  must  be  made  affirma- 
tively to  appear  in  the  record.  Herrlich 
V.  McDonald,  80  Cal.  472;  22  Pac.  299. 

Time  for  making  motion.  A  reasonable 
time  for  the  making  of  a  motion  is,  in  the 
absence  of  a  statutory  limitation,  a  ques- 
tion largely  within  the  discretion  of  the 
trial  court.  Frank  Co.  v.  Leopold  &  Per- 
ron Co.,  13  Cal.  App.  59;  108  Pac.  878. 

Extension  of  time  for  filing  of  papers. 
The  statutes  fixing  the  time  for  the  filing 
of  papers  are  merely  directory,  and  it  is 
always  within  the  power  of  the  court,  in 
the  exercise  of  a  proper  discretion,  to  ex- 
tend the  time  fixed  by  law,  whenever  the 
ends  of  justice  demand  such  extension. 
Wood  V.  Forbes,  5  Cal.  62. 

CODE  COMMISSIONERS'  NOTE.  The  su- 
preme court  has  always  luld,  that  statutes,  fix- 
ing the  time  for  filing  papers  in  a  cause,  are 
merely  directory,  and  that  the  court  has  it 
always  in  its  power,  in  the  exercise  of  a  proper 
discretion,  to  extend  the  time  fixed  by  law 
whenever  the  ends  of  justice  would  seem  to 
demand  such  an  extension.  Wood  v.  Forbes,  5 
Cal.    62.      Notice   of   an   application   by   plaintiff, 


1161 


TRANSFER  OF    MOTION — ORDER   ENFORCED    HOW.  §§  1006,  1007 


for  an  injunction,  must  ho  eiven  for  the  Irn^lh 
of  time  prescribed  in  §  1005  of  this  code.  If 
given  for  a  shorter  time,  and  defeiidaiit  does 
not  appear,  he  may  reRjird  the  injunction  thus 
obtained  as  t'l'anted  without  notice,  and  move 
to  dissolve  the  same  under  §  532,  ,inte.  .lolin- 
son  V.  Wide  West  Minins  Co.,  22  t'al.  479.  If 
there  is  any  ambiguity  in  the  terms  of  the 
notice,  rendering  its  meaning  doubtful,  the  con- 
struct inn  must  be  most  strongly  against  the 
plaintiff  who  Rave  the  notice.  "  Carpentior  v. 
Thurston,  30  Cal.  125.  It  is  regular  and  proper 
to  suggest  the  death  of  a  party  in  any  court 
and  at  any  stage  of  tlie  proceedings.  It  has 
now  been  suggested,  and  it  is  our  duty  to  stop, 
whetlier  there  is  any  motion  to  dismiss  or  not. 
It  is  said,  however,  that  we  cannot  act  upon 
the  affidavit,  because  the  appellant  was  entitled 
to  five  days'  or  more  notice  of  the  motion  to 
dismiss,  also,  to  a  service  of  the  afiidavit  of  the 
moving  party.  This  might  have  been  a  good 
objection  to  hearing  the  motion  at  all,  at  the 
time  it  was  made,  or  until  notice  should  be  given  • 

§  1006.  Transfer  of  motions  and  orders  to  show  cause.  When  a  notice 
of  motion  is  given,  or  an  order  to  show  cause  is  made  returnable  before  a 
judge  out  of  court,  and  at  the  time  fixed  for  the  motion,  or  on  the  return- 
day  of  the  order,  the  judge  is  unable  to  hear  the  parties,  the  matter  may  be 
transferred  by  his  order  to  some  other  judge,  before  whom  it  might  origi- 
nally have  been  brought. 


and  service  made.  But  no  such  objection  was 
made  at  the  time  the  motion  was  submitted. 
The  motion  was  submitted  on  its  merits,  on 
briefs  to  b«  filed,  and  tiie  objection  of  want  of 
notice  is  now  made  in  the  brii-fs  for  the  first 
time.  The  objection  was  therefore  waived  by 
not  taking  it  in  time.  The  object  of  the  notic* 
is,  that  the  party  may  not  be  taken  by  surprise; 
that  he  may  come  with  countfr-aflidaVits,  or  be 
otherwise  prepand  to  meet  it.  'I'liere  was  evi- 
dently no  surprise  in  this  case,  and  the  motion 
was  submitted  on  its  merits.  As  in  the  case 
of  Sanchez  v.  Roach,  5  Cal.  248.  the  affidavit 
of  the  death  of  the  defendant  was  not  contra- 
dicted, and  it  appears  that  he  died  before  the 
service  of  the  notice  of  app)  a),  and  that  all 
of  the  proceedings  since  the  verdict,  except  the 
entry  of  judgment  in  accordance  with  it,  are 
ineffectual  for  any  purpose  as  against  the  de- 
fendant. See  .Judson  v.  Love,  35  Cal.  464. 
Motion  to  dismiss  appeal  as  to  party  deceased. 
Id. 


Notice  of  motioa.    Ante,  §  1005. 

Legislation  S  1006.  Enacted  March  11,  1872; 
re-enactment  of  Practice  Act,  §  518  (New  York 
Code.  §  404). 

Notice  of  transfer.  The  transfer  of  a 
case  from  one  department  of  the  superior 
court,  where  the  same  is  pending,  to  an- 
other department  of  the  same  court,  upon 
the  application   of  a  party   to   the  action. 


should  be  upon  notice  to  the  opposite 
party;  but  such  is  not  the  rule  where  the 
judges,  for  the  more  convenient  dispatch 
of  business,  or  for  any  other  reason  they 
may  deem  necessary,  make  an  order  assign- 
ing or  transferring  cases  for  trial  to  any 
one  or  more  of  the  several  departments  of 
such  court.  Bell  v.  Peck,  104  Cal.  35;  37 
Pac.  766. 


§  1007.     Order   for   payment   of   money,   how   enforced.     Whenever   an 

order  for  the  payment  of  a  sum  of  money  is  made  by  a  court,  pursuant  to 

the  provisions  of  this  code,  it  may  be  enforced  by  execution  in  the  same 

manner  as  if  it  were  a  judgment. 

why  he  had  not  obeyed  the  order.  Van 
Cleave  v.  Bacher,  79  Cal.  600;  21  Pac.  954. 
An  order  allowing  alimony  and  counsel 
fees,  pendente  lite,  in  divorce  proceedings, 
and  providing  for  the  enforcement  thereof 
by  execution,  is  appealable.  Sharon  v. 
Sharon,  75  Cal.  1;  16  Pac.  345. 

Fine  for  contempt.  A  fine  imposed  for 
contempt  of  court  is  a  judgment  or  order 
for  the  payment  of  money,  and  may  be 
enforced  bv  execution.  In  re  Tyler,  64  Cal. 
434;  1  Pac.'8S4. 

Decree  of  distribution.  A  decree  of  dis- 
tribution is  not  such  a  judgment  or  order 
for  the  j)ayment  of  money  against  an  ad- 
ministrator as  may  be  enforccil  bv  execu- 
tion. Estate  of  Kennedy,  129  Cal."3S4;  62 
Pac.  64. 


Enforced  by  execution.    Ante,  §  §  681  et  seq. 

Contempt.     Post,  §§  1209  et  seq. 

Legislation  §  1007.      Enacted  March  11,   1872. 

Construction  of  section.  This  section  is 
merely  a  cumulative  remedy  for  the  en- 
forcement of  an  order  to  pay  money,  as 
for  the  enforcement  of  a  fine  in  a  proceed- 
ing for  contempt.  Ex  parte  Karlson,  160 
Cal.  378;  Ann.  Cas.  1912D,  1334;  117  Pac. 
447. 

Order  for  alimony  or  attorneys'  fees. 
An  execution  may  be  issue.!,  in  a  divoroa 
case,  upon  an  order  allowing  alimony  or 
attorneys'  fees.  Robinson  v.  Robinson,  79 
Cal.  511;  21  Pac.  1095.  An  execution  may 
be  issued  for  alimony  allowed  by  a  decree 
or  order  of  the  court,  without  first  giving 
the  defendant  an  opportunity  to  show  cause 


§1010 


NOTICES,   AND  FILING  AND   SERVICE  OF  PAPERS. 


1162 


CHAPTER  V. 

NOTICES,  AND  FILING  AND  SERVICE   OF  PAPERS. 


§  1010.  Notices  and  papers,  how  served.  §  1016. 

§  1011.  When  and  how  served. 

I  1012.  Service  by  mail,  when.  §  1017. 

§1013.  Service  by  mail,  how.  §1018. 

§1014.  Appearance.     Notices  after  appearance.  §1019. 

§  1015.  Service  on  non-residents. 


Preceding  provisions  not  to  apply  to  pro- 
ceeding  to   bring  party   into   contempt. 

Service  by  telegraph. 

fNo  section  with  this  number.] 

Service  of  pleKdings  in  action  for  divorce 
for  adultery. 


§  1010.  Notices  and  papers,  how  served.  Notices  must  be  in  writing, 
and  the  notice  of  a  motion,  other  than  for  a  new  trial,  must  state  when,  and 
the  grounds  upon  which  it  will  be  made,  and  the  papers,  if  any,  upon 
which  it  is  to  be  based.  If  any  such  paper  has  not  previously  been  served 
upon  the  party  to  be  notified  and  was  not  filed  by  him,  a  copy  of  such  paper 
must  accompany  the  notice.  Notices  and  other  papers  may  be  served  upon 
the  party  or  attorney  in  the  manner  prescribed  in  this  chapter,  when  not 
otherwise  provided  by  this  code. 

to  determine  that  the  proper  notice  has 
been  given;  such  notice  must  be  in  writ- 
ing, and  contain  a  statement  of  the  relief 
sought,  and  be  given  at  lease  five  days 
before  the  hearing.  Rundberg  v.  Belcher, 
118  Cal.  .589;  50  Pac.  670.  The  settlement 
of  a  bill  of  exceptions  in  a  criminal  case 
must  be  upon  written  notice;  and  §  1171 
of  the  Penal  Code,  providing-  for  the  set- 
tlement of  a  bill  upon  at  least  two  days' 
notice,  must  be  construed  with  this  sec- 
tion. Page  V.  Superior  Court,  122  Cal.  209; 
54  Pac.  730.  Notice  of  appearance,  given 
for  a  client  by  his  attorney,  need  not 
necessarily  be  in  writing  (Salmonson  v. 
Streiffer,  13  Cal.  App.  39o;  110  Pac.  Hi); 
but,  in  an  action  in  a  justice's  court,  the 
notice  setting  the  cause  for  trial  is  juris- 
dictional, and  must  be  given  in  writing 
(Elder  V.  Justice's  Court,  136  Cal.  364;  68 
Pac.  1022);  and  such  notice  must  form  a 
part  of  the  record;  and  there  must  be  an 
entry  thereof,  and  of  the  mode  in  which 
it  is  given,  in  the  justice's  docket,  in  order 
to  authorize  him  to  proceed  upon  the  trial 
of  the  case  and  render  a  judgment  therein. 
•Jones  V.  Justice's  Court,  97  Cal.  523;  32 
Pac.  575. 

Object  and  waiver  of  written  notice.  The 
object  of  a  written  notice,  and  the  only 
purpose  it  can  subserve,  is  to  bring  home 
to  the  party  knowledge  of  a  fact  upon 
which  he  is  called  upon  to  act;  but  the 
right  to  a  written  notice,  like  any  other 
civil  right,  may  be  waived.  Barron  v. 
Deleval,  58  Cal.  95. 

Shortening  time  of  notice.  An  order 
shortening  the  time  of  notice,  by  the 
judge,  will,  in  the  absence  of  a  showing 
to  the  contrary,  be  deemed,  upon  appeal, 
to  have  been  made  for  sufficient  cause. 
California  Mortgage  etc.  Bank  v.  Graves, 
129  Cal.  649;  62  Pac.  259;  and  see  Damb- 
mann  v.  White,  48  Cal.  39. 

Effect  of  actual  notice.  An  appeal  may 
be  dismissed  for  the  causes  mentioned  in 
the  statutes,   after  notice;   the   court   may 


Legislation  §  1010.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act,  §  519,  which  read: 
"Written  notices  and  other  papers,  when  required 
to  be  served  on  the  party  or  attorney,  shall  be 
served  in  the  manner  prescribed  in  the  ne.xt  three 
sections,  when  not  otherwise  provided;  but  noth- 
ing in  this  title  shall  be  applicable  to  original  or 
final  process,  or  any  proceedings  to  bring  a  party 
into  contempt."  When  enacted  in  1872.  §  1010 
read:  "Notices  must  be  in  writing,  and  notices 
and  other  papers  may  be  served  upon  the  party 
or  attorney  in  the  manner  prescribed  in  this  chap- 
ter, when  not  otherwise  provided  by  this  code." 

2.  Amendment  by  Stats.  1901,  p.  177;  un- 
constitutional.    See  note  a)ite.  §  5. 

3.  Amended  by  Stats.  1907,  p.  601;  the  code 
commissioner  saying,  "Requires  the  notice  to  state 
when,  and  the  grounds  and  papers  upon  which, 
the  motion  will  be  made.  Codifies  what  the  ac- 
tual practice  is  to-day,  and  what  is  generally  pro- 
vided for  in  rules  of  court." 

Necessity  of  notice.  An  application, 
under  §  709,  ante,  by  a  surety  who  has  paid 
more  than  his  share  of  a  judgment,  for 
execution  against  his  co-sureties,  must  be 
upon  notice,  under  this  section  and  those 
following.  Davis  v.  Heimbach,  75  Cal.  261; 
17  Pac.  199.  Where  a  statute  or  contract 
requires  the  giving  of  notice,  and  there  is 
nothing  in  the  context,  or  in  the  circum- 
stances of  the  case,  to  show  that  any  other 
form  of  notice  was  intended,  personal 
notice  will  be  required.  Stockton  Automo- 
bile Co.  v.  Confer,  154  Cal.  402;  97  Pac. 
881. 

Necessity  of  written  notice.  Where  a 
statute  speaks  of  notice  of  a  motion,  a 
written  notice  is  meant,  or  a  notice  in  open 
court,  of  which  a  minute  is  made  by  the 
clerk.  Borland  v.  Thornton,  12  Cal.  440. 
It  is  essential  that  the  notice  in  a  legal 
proceeding  shall  be  in  writing,  in  order 
that  the  rights  of  the  party  to  be  affected 
by  it  shall  be  protected,  as,  otherwise,  in 
many  cases,  mischievous  results  would  fol- 
low: any  other  practice  should  therefore 
be  discountenanced.  Flateau  v.  Lubeck, 
24  Cal.  364.  A  substitution  of  attorneys, 
by  order  of  the  court,  involves  judicial 
action,  and  the  requirement  of  a  notice 
as  the  basis  of  such  order  necessarily  im- 
plies  the    exercise    of   sufficient   discretion 


1163 


NOTICE  OF  APPEARANCE,  ETC. — WAIVER, 


§1010 


err  as  to  tlie  kinrl  or  length  of  the  notice; 
but  if  the  aiijicllant  had  notice  in  fact, 
the  order  of  dismissal  is  not  void;  the 
notice  is  not  the  means  by  which  jurisdic- 
tion was  obtained,  for  that  had  already 
been  acquired  by  the  appeal.  People  v. 
Elkins,  40  Cal'.  6-12.  A  provision  in  a 
judgment  for  a  forfeiture  of  the  plaintiff's 
riglits  within  twenty  days  after  written 
notice  of  the  entry  of  the  judgment  if  no 
redemption  should  be  made  within  that 
period,  must  be  construed  as  requiring  a 
separate  written  notice  expressly  intended 
for  the  purpose  of  starting  the  period  of 
time  mentioned  in  the  judgment;  and  a 
mere  iucidental  recital  of  the  rendering  of 
the  judgment,  in  a  notice  of  motion  for  a 
new  trial,  is  not  a  sufficient  compliance 
with  the  terms  of  the  judgment  respecting 
written  notice,  nor  is  the  actual  knowledge 
by  the  plaintiff  of  the  rendition  of  the 
judgment  material  upon  the  question  of 
such  com]diance.  Bvrne  v.  Hudson,  127  Cal. 
254;  .19  Pac.597. 

Notice  of  appearance.  The  giving  of 
any  mere  notice,  other  than  exjiress  notice 
of  appearance,  does  not  constitute  a  notice 
(Of  appearance.  Salmonson  v.  Streiffer,  13 
Cal.  App.  395;  110  Pac.  144. 

Notice  of  decision  or  entry  of  judgment. 
Whore,  under  the  various  code  provis- 
ions, notice  of  a  decision  is  required  to 
be  given,  w'ritten  notice  is  usually  in- 
tended; and  the  principle  involved  in  nearly 
all  the  cases,  relating  to  the  time  within 
which  to  perform  certain  acts,  where  time 
is  given  after  notice  of  the  decision,  is 
substantially  the  same,  and  the  seeming 
discrepancies  between  a  few  of  the  cases 
is  to  be  found  in  the  fact  of  confounding 
the  question  as  to  what  is  a  sufficient  ser- 
vice of  notice,  with  the  very  distinct  one 
of  a  waiver  of  notice,  and  what  amounts 
to  such  waiver.  Forni  v.  Yoell,  99  Cal. 
173;  33  Pac.  887.  It  was  formerly  held 
that  a  party  intending  to  move  for  a  new 
trial  had  a  right  to  wait  for  a  notice  in 
writing  of  the  decision  from  the  adverse 
party,  before  giving  notice  of  his  inten- 
tion, and  that  he  was  entitled  to  such 
notice  of  the  decision  before  he  w^as  called 
upon  to  act,  although  he  was  present  in 
court  when  the  decision  was  rendered, 
waived  findings,  and  asked  for  a  stay  of 
proceedings  on  the  judgment:  it  was  not 
enough  that  the  party  had  knowledge  of 
the  judgment  or  order;  nor  was  oral  com- 
munication, presence  in  court,  or  hearing 
decision  announced  or  order  or  judgment 
declared,  sufficient  (Biagi  v.  Howes,  66 
Cal.  469;  6  Pac.  100);  but,  by  later  decis- 
ions, under  §  659,  ante,  which  provides 
that  a  motion  for  a  new  trial  must  be  made 
within  ten  days  after  "notice  of  the  decis- 
ion," where  it  appears  affirmatively  that 
the  party  moving  had  actual  notice  of  the 
decision,  no  formal  service  of  a  written 
notice  bj^  the  opposite  party  is  necessary 
(California  Improvement  Co.  v.  Baroteau, 


no  Cal.  136;  47  Pac.  1018);  and  written 
notice  of  judgment  may  be  waivcil  (Gard- 
ner v.  Stare,  135  Cal.  118;  67  Pac.  5;  Gray 
V.  Winder,  77  Cal.  525;  20  Pac.  47;  Wad"- 
dingham  v.  Tubbs,  95  Cal.  249;  30  Pac. 
527);  but  where  the  record  shows  no  legal 
waiver,  an  affidavit  of  the  opposite  party 
cannot  be  used  to  show  actual  notice  or 
knowledge  of  the  fact  that  the  decision 
has  been  rendered:  the  intent  of  the  stat- 
ute requires  written  notice,  and  cannot  be 
thus  defeated.  Mallory  v.  See,  129  Cal.  356; 
61  Pac.  1123.  To  set  the  time  in  motion 
within  which  the  appellant  must  serve  and 
file  his  notice  of  intention  to  move  for  a 
new  trial,  the  respondent  must  serve  upon 
the  attorney  for  the  apjiellant  a  written 
notice  of  the  decision.  Estate  of  Richar<is, 
154  Cal.  478;  98  Pac.  528.  A  notice  of  in- 
tention to  move  for  a  new  trial,  by  the 
party  in  whose  favor  judgment  has  been 
rendered,  served  upon  the  adverse  party, 
which  contains  the  title  of  the  cause,  and 
which  states  that  "a  motion  will  be  made 
to  set  aside  and  vacate  the  decision  and 
judgment  heretofore  rendered  and  entered 
herein,"  contains  a  sufficient  notice  in  writ- 
ing that  a  decision  of  the  court  had  there- 
tofore been  rendered  to  require  the  adverse 
party  to  serve  and  file  his  notice  of  inten- 
tion to  move  for  a  new  trial  within  ten 
davs  thereafter.  Waddingham  v.  Tubbs.  95 
Cal.  249;  30  Pac.  527;  Forni  v.  Yoell,  99 
Cal.  173;  33  Pac.  887;  and  see  Mallorv  v. 
See,  129  Cal.  356;  61  Pac.  1123.  The  "ser- 
vice of  a  copy  of  the  findings  and  judgment 
upon  the  attornej's  of  the  defeated  party, 
after  the  entry  of  the  judgment,  is  suffi- 
cient uotice  of  the  entry  of  the  judgment. 
Kelleher  v.  Creciat,  89  Cal.  38;  26  Pac.  619. 
Waiver  of  notice.  Waiver  of  notice  may 
be  made  bv  the  party  entitled  thereto. 
Forni  v.  Yoell,  99  Cal.  173;  33  Pac.  887. 
Written  notice  of  the  overruling  of  a  de- 
murrer is  not  required;  but  conceding  that 
such  notice  is  required,  it  is  waived  by  the 
attorney  for  the  party  appearing  in  court 
at  the  hearing  and  applying  for  leave  to 
answer  within  a  certain  time.  Barron  v. 
Deleval,  58  Cal.  95.  Written  notice  of  the 
overruling  of  a  demurrer  is  waived  by  the 
presence  in  court  of  the  attorney  for  the  de- 
murring partv,  at  the  time  of  the  ruling 
thereon.  Wall  v.  Heald,  95  Cal.  364;  30  Pac. 
551.  Where  a  party  appears  and  argues 
a  motion,  he  cannot  com])laiu  that  sufficient 
notice  thereof  was  not  given  him.  Naylor 
V.  Adams,  15  Cal.  App.  353;  114  Pac.  997. 
Where  the  defendant  was  present  in  court 
when  an  application  was  made  to  file  an 
amended  proof  of  service  of  summons  nunc 
pro  tunc,  and  raised  no  objection  for  want 
of  previous  notice  of  the  application,  but 
proceeded  to  argue  the  question  at  length 
and  took  an  exception  to  the  ruling,  his  ac- 
tion was,  in  effect,  a  waiver  of  the  notice. 
Herman  v.  Santee,  103  Cal.  519;  42  Am.  St. 
Eep.  145;  37  Pac.  509. 


§1010 


NOTICES,    AND   FILING   AND    SERVICE   OF   PAPERS. 


1164 


Waiver  of  notice  of  decision  and  entry 

of  judgment.  The  object  of  the  law  is  to 
give  ten  days  after  actual  knowledge  of 
the  decision  in  which  to  give  notice  of  in- 
tention to  move  for  a  new  trial,  and  that 
object  is  fully  attained  when  the  record 
shows  that  the  party  entitled  to  notice  has 
acted  in  court  upon  actual  knowledge  of 
the  decision:  such  action  constitutes  a 
waiver  of  formal  notice;  and  a  notice  of 
motion  for  a  new  trial,  given  fourteen 
years  after  such  waiver,  is  too  late,  though 
no  formal  written  notice  of  the  decision 
was  ever  given,  and  though  some  of  the 
parties  moving  for  a  new  trial  were  minors 
at  the  time  of  the  waiver.  Gray  v.  Winder, 
77  Cal.  525;  20  Pac.  47.  A  defendant,  who 
gave  notice  of  a  motion  to  dismiss  an  ac- 
tion, upon  the  ground  that  the  findings  and 
decision  of  the  court  upon  the  final  submis- 
sion of  the  action  have  been  filed  for  more 
than  six  months  without  entry  of  judg- 
ment, must  be  held  to  have  waived  notice 
of  the  decision  as  of  the  time  of  making 
such  motion.  Forni  v.  Yoell,  99  Cal.  173;  33 
Pac.  887.  By  taking  an  appeal  from  a 
judgment,  without  waiting  for  notice  of  the 
decision,  the  losing  party  waived  such  no- 
tice; and  a  notice  of  intention  to  move  for 
a  new  trial,  given  more  than  ten  days 
thereafter,  came  too  late.  People  v.  Center, 
9  Pac.  Coast  L.  J.  776.  Mere  knowledge 
that  a  decision  has  been  given  is  not  the 
equivalent  of  notice;  but  the  giving  of 
actual  notice  may  be  waived  by  the  party 
entitled  to  it.  The  evidence  of  such  waiver 
must  be  clear  and  uncontradicted,  and  not 
dependent  upon  oral  testimony  or  ex  parte 
aflfidavits.  The  rule  would  seem  to  be,  that 
written  notice  of  the  filing  of  the  decision 
is  in  all  cases  required,  unless  waived  by 
facts  appearing  in  the  records,  files,  or 
minutes  of  the  court.  A  written  admis- 
sion, by  the  party  entitled  to  notice,  of 
knowledge  that  the  decision  had  been  made, 
filed  with  the  clerk,  or  entered  upon  the 
minutes  of  the  court,  dispenses  with  the 
necessity  of  giving  such  notice,  and  a  mo- 
tion to  the  court,  or  other  proceeding,  by 
a  party,  which  presumes  his  knowledge  that 
the  decision  has  been  made,  and  by  which 
he  seeks  to  protect  his  own  interest  as 
against  the  right  of  the  other  party  under 
the  decision,  is  a  waiver  of  his  right  to  a 
notice  of  the  decision.  Gardner  v.  Stare, 
135  Cal.  118;  67  Pac.  5;  Mallory  v.  See,  129 
Cal.  356;  61  Pac.  1123;  Forni  v.  Yoell,  99 
Cal.  173;  33  Pac.  887.  A  losing  party  mov- 
ing for  a  stay  of  execution,  which  is 
granted,  and  asking  further  findings,  which 
are  made,  all  of  which  appears  in  the 
minutes  of  court,  waives  a  formal  notice  of 
the  decision,  and  by  such  action  must  be 
held  to  have  had  actual  knowledge  thereof. 
Gray  v.  Winder,  77  Cal.  525;  20  Pac.  47; 
Gardner  v.  Stare,  135  Cal.  118;  67  Pac.  5, 
Notice  of  the  decision  must  be  held  to  have 
been  waived,  where  the  prevailing  party 
had  actual  knowledge  thereof,  and  partici- 


pated in  and  opposed  the  motion  for  a  new 
trial.  Mullallv  v.  Irish-American  Benevo- 
lent Society,  69  Cal.  559;  11  Pac.  215.  The 
statutory  provision  requiring  written  no- 
tice is  subject  to  the  rule,  that  any  one 
may  waive  the  advantage  of  a  law  in- 
tended solely  for  his  benefit;  and  when  a 
party  acts  as  if  he  had  formal  notice  of  a 
decision,  such  acts  constitute  a  waiver  of 
such  formal  notice.  Mallory  v.  See,  129  Cal. 
356;  61  Pac.  1123;  and  see  Gray  v.  Winder, 
77  Cal.  525;  20  Pac.  47.  Actual  notice  of 
the  entry  of  an  order,  judgment,  or  decree 
appealed  from,  establir'ied  by  the  record, 
dispenses  with  or  waives  written  notice 
thereof.  Estate  of  Keating,  158  Cal.  109; 
110  Pac.  109. 

Service  of  notice.  The  service  of  writ- 
ten notices  and  other  papers,  except  origi- 
nal and  final  process,  subpoenas,  writs,  etc., 
must  be  made  upon  the  attorney  of  a  party, 
where  he  has  appeared  by  attorney.  People 
v.  Alameda  Turnpike  Eoad  Co.,  30  Cal.  182. 
Where  notice  is  required  to  be  given,  but 
the  person  to  be  served  is  not  indicated  in 
the  statute,  the  plain  inference  is,  that  the 
party  intended  is  the  one  who  is  to  be  pro- 
ceeded against.  Davis  v.  Heimbach,  75  Cal. 
261;  17  Pac.  199.  The  statute  defining  the 
duties  of  a  sheriflp  does  not  give  to  nor  im- 
pose upon  him  exclusively  the  duty  of  serv- 
ing all  process  and  notices,  but  merely 
requires  that  he  shall  serve  all  notices  and 
process  directed  to  him  or  placed  in  his 
hands  for  service.  Hibernia  Sav.  &  L.  Soc. 
v.  Clarke,  110  Cal.  27;  42  Pac.  425.  Where 
the  record  of  a  justice's  court  shows  ser- 
vice of  a  written  notice  of  the  time  of 
trial,  it  cannot,  upon  certiorari,  bo  contra- 
dicted by  evidence  dehors  the  record.  Los 
Angeles  v.  Young,  118  Cal.  295;  62  Am.  St. 
Eep.  234;  50  Pac.  534. 

Affidavit  served  with  notice.  An  afl^davit 
of  one  of  the  defendants,  served  with  no- 
tice of  a  motion  to  vacate  a  judgment  by 
default,  though  not  embodied  in  the  notice, 
is  a  substantial  compliance  with  this  sec- 
tion. Broderick  v.  Cochran,  18  Cal.  App. 
202;  122  Pac.  972.  An  affidavit  not  re- 
ferred to  in  the  notice  of  motion  to  set 
aside  a  default,  filed  after  subinission.  can- 
not be  considered  on  appeal,  although  filed 
by  leave  of  court.  Forrest  v.  Knox,  21  Cal. 
App.  363;  131  Pac.  894. 

Waiver  of  objections  to  service.  An 
acknowledgment  of  service,  indorsed  on  a 
notice  of  appeal,  "Due  service  of  a  copy 
of  the  within  notice  is  hereby  accepted  to 
have  been  made,"  stating  day,  month,  and 
year,  merely  admits  that  the  notice  was 
served  at  a  certain  date,  and  is  not  a 
waiver  of  an  objection  that  service  was 
made  too  late.  Towdy  v.  Ellis,  22  Cal.  650. 
The  objection  of  a  district  attorney,  that 
no  notice  of  the  settlement  of  a  bill  of  ex- 
ceptions in  a  criminal  case  was  given,  is 
not  overcome  by  proof  that  verbal  notice 
thereof  was  given  to  his  clerk,  and  cannot, 
be  deemed  waived,  where  the  proposed  bill 


1165 


CORRECTING  RECORD — SERVICE  OF  KOTICE. 


§1011 


ordinarily,  a  court  would  require  notice  of 
the  motion  to  be  given  to  all  parties  inter- 
ested, but  it  has  the  power  to  make  the 
correction  without  such  notice.  Crim  v. 
Kessing,  89  Cal.  47S;  23  Am.  St.  Rep.  49); 
26  Pac.  1074.  Clerical  misprisions,  which 
are  apparent  upon  the  record,  may  be  cor- 
rected by  the  court,  on  its  own  motion, 
with  or  without  notice.  Dickey  v.  (iibsou, 
113  Cal.  26;  54  Am.  St.  Kep.  321;  4.",  I'ac. 
15.  Clerical  niisiuisidns  in  the  judf^ment, 
the  record  affording  the  evidence  thereof, 
may  be  corrected  at  any  time  by  the  court, 
upon  its  own  motion,  or  upon  motion  of  an 
interested  party,  with  or  without  notice; 
but  where  an  inspection  of  the  record  does 
not  show  error,  notice  of  a  motion  to  ameml 
the  judgment  will  be  required  to  be  given 
the  parties  to  be  affected  thereby.  Scam- 
man  V.  Bonslett,  118  Cal.  93;  62  Am.  St. 
Kep.  226;  50  Pac.  272. 

Appeal.  A  finding  or  ruling  as  to  no- 
tice, made  upon  conflicting  evidence,  will 
not  be  disturbed  upon  appeal.  Rauer  v. 
Silva,  128  Cal.  42;  60  Pac.  525. 

Definition  of  motion  and  order.  See  note 
ante,  §  1003. 


was  not  served  upon  the  district  attorney, 
and  he  did  not  know  of  its  preparation  or 
existence  until  after  its  presentation  to  the 
judge.  Page  v.  Superior  Court,  122  Cal. 
209;  54  Pac.  730.  A  notice  of  motion  to 
quash  the  service  of  summons  must  specify 
the  objections  made  to  the  service  of 
process;  otherwise  such  objections  must  be 
deemed  to  have  been  waived.  Dickinson  v. 
Zubiate  Mining  Co.,  11  Cal.  App.  656;  106 
Pac.  123. 

Correcting  record,  with  or  without  notice. 
Durinij  term-time,  when  terms  of  court  were 
held,  the  record  could  be  amended  in  any 
manner,  so  as  to  be  made  conformable  to 
the  facts;  but  after  the  expiration  of  the 
term,  it  could  be  amended  only  where  the 
record  itself  showed  error;  and  in  such 
cases  the  record  could  not  be  amended  un- 
less it  contained  something  to  amend  by. 
Branger  v.  Chevalier,  9  Cal.  172.  All  courts 
of  record  have  the  inherent  power  to  cor- 
rect their  -records  so  that  they  shall  con- 
form to  the  actual  facts  and  speak  the 
truth  of  the  case,  and  such  correction  may 
be  made  at  any  time,  either  upon  the  mo- 
tion of  the  court  itself  or  at  the  instance 
.of    any    party    interested    in    the    matter; 

§  1011.  When  and  how  served.  The  service  may  be  personal,  by  de- 
livery to  the  party  or  attorney  on  whom  the  service  is  required  to  be  made, 
or  it  may  be  as  follows : 

1.  If  upon  an  attorney,  it  may  be  made  during  his  absence  from  his  office, 
by  leaving  the  notice  or  other  papers  with  his  clerk  therein,  or  with  a  per- 
son having  charge  thereof;  or  when  there  is  no  person  in  the  office,  by 
leaving  them  between  the  hours  of  nine  in  the  morning  and  five  in  the  after- 
noon, in  a  conspicuous  place  in  the  office ;  or,  if  it  is  not  open  so  as  to  admit 
of  such  service,  then  by  leaving  them  at  the  attorney's  residence,  with  some 
person  of  not  less  than  eighteen  years  of  age,  if  his  residence  is  in  the  same 
county  with  his  office;  and  if  his  residence  is  not  known,  or  is  not  in  the 
same  county  with  his  office,  or  being  in  the  same  county  it  is  not  open,  or 
there  is  not  found  thereat  any  person  of  not  less  than  eighteen  years  of  age, 
then  by  putting  the  same,  inclosed  in  a  sealed  envelope,  into  the  post-office 
directed  to  such  attorney  at  his  office,  if  known;  otherwise  to  his  residence, 
if  known;  and  if  neither  his  office  nor  his  residence  is  known,  then  by  de- 
livering the  same  to  the  clerk  of  the  court  for  the  attorney; 

2.  If  upon  a  party,  it  may  be  made  by  leaving  the  notice  or  other  paper 
at  his  residence,  between  the  hours  of  eight  in  the  morning  and  six  in  the 
evening,  with  some  person  of  not  less  than  eighteen  years  of  age ;  and,  if 
his  residence  is  not  known,  by  delivering  the  same  to  the  clerk  of  the  court 
for  such  party. 


Service,   ou   attorney.    Post,  §  1015. 

Sheriflf  serving,  duty  of,  to  exhibit.  See  Pol. 
Code,  §  4169. 

Coroner  to  serve,  when  sheriff  a  party.  See 
Pol.   Code,  §  4172. 

Elisor  may  be  appointed  to  execute,  when.  Sec 
Pol.  Code,  §  4173. 

Sheriff,  justified  when.    See  Pol.  Code,  S  4168. 

Legislation  §  1011.  1.  Enacted  M.irch  11, 
1873,  in  e.xact  language  of  Practice  Act,  §  520 
(New  York  Code,  §  409),  which  read;  "The  ser- 


vice may  be  personal,  by  delivery  to  the  party  or 
attorney,  on  whom  the  service  is  required  to  bo 
made,  or  it  m.Ty  be  as  follows:  1st.  If  upon  an 
jittorney.  it  in:iy  be  made  durinp  his  absence  from 
his  office,  by  leaving  the  notice  or  other  papiTS 
with  his  clerk  therein,  or  with  a  person  having 
charge  thereof;  or  when  there  is  no  person  in  the 
olliro,  by  leaving  them,  between  the  hours  of 
eight  in  the  morning  and  six  in  the  afternoon,  in 
a  oonsijicuous  place  in  the  oflice;  or  if  it  be  not 
open,  so  as  to  admit  of  such  service,  then  by 
leaving    them    at    the    attorney's    residence,    with 


§1011 


NOTICES,    AND    FILING  AND    SERVICE   OF   PAPERS. 


1166 


some  person  of  suitable  age  and  discretion;  and 
if  his  residence  be  not  known,  then  by  putting 
the  same,  inclosed  in  an  envelope,  into  the  post- 
oiJice,  directed  to  such  attorney:  2d.  If  upon  a 
party,  it  may  be  made  by  leaving  the  notice  or 
other  paper  at  his  residence  between  the  hours 
of  eight  in  the  morning  and  six  in  the  evening, 
with  some  person  of  suitable  age  and  discretion; 
and  if  his  residence  be  not  known,  by  putting  the 
same,  inclosed  in  an  envelope,  into  the  post-office 
directed  to  such  party." 

2.  Amendment  by  Stats.  1901,  p.  178;  un- 
constitutional.    See  note  ante,  §  5. 

3.  Amended  by  Stats.  1907,  p.  602;  the  code 
commissioner  saying,  "Changes  the  hours  during 
which  notice  may  be  served  at  an  attorney's  office 
in  his  absence,  so  that  the  hours  shall  be  from 
nine  to  five  instead  of  from  eight  to  six;  excuses 
the  leaving  of  papers  at  an  attorney's  residence 
if  in  a  county  other  than  that  of  his  office;  pro- 
vides means  of  service  when  his  residence  is  in 
another  county,  or  when  neither  his  office  nor  his 
residence  is  known." 

Construction  of  chapter.  The  notice  of 
appeal  may  be  served  personally,  or  in 
any  of  the  other  modes  prescribeil  by  this 
chapter.    Columbet  \.  Pacheco,  46  Cal.  650. 

Service  upon  adverse  party  or  his  attor- 
ney. An  order  to  show  cause  why  a  .judg- 
ment should  not  be  set  aside  must  be 
served  ufjon  the  adverse  party  or  his  at- 
torney: and  the  setting  aside  of  the  judg- 
ment upon  such  order,  without  service,  is 
void.    Vallejo  V.  Green,  16  Cal.  160. 

Personal  service.  The  delivery  which 
constitutes  a  personal  service,  under  this 
section,  need  not  be  made  by  the  individ- 
ual who  is  attempting  to  make  the  service, 
but  can  be  effected  through  a  clerk  or 
messenger,  or  through  any  agency  by 
which  a  delivery  can  be  made,  and  when 
the  notice  is  so  delivered,  the  service  be- 
comes a  personal  service;  the  fact  that 
the  person  upon  whom  the  service  is  to 
be  made  resides  or  has  his  ofBee  in  a  dif- 
ferent place  from  that  of  the  person  mak- 
ing the  service  does  not  require  that  the 
service  shall  be  made  by  mail,  nor  pre- 
clude a  personal  service,  and  the  person 
seeking  to  make  the  service  can  avail  him- 
self of  any  agency,  such  as  an  express 
company  or  the  post-office,  with  as  much 
effect  as  if  he  had  employed  any  other 
messenger,  and  notice  through  such  agency 
renders  the  service  personal,  and  the  proof 
of  such  delivery  establishes  a  personal  ser- 
vice. Heinlen  v.  Heilbron,  94  Cal.  636;  30 
Pac.  8.  The  receipt  of  a  notice  served  by 
mail,  when  admitted  by  the  party  or 
proved,  amounts,  in  law,  to  a  personal  ser- 
vice. Shearman  v.  Jorgensen,  106  Cal.  4S3; 
39  Pac.  863. 

Admission  of  personal  service.  A  writ- 
ten statement  at  the  foot  of  the  notice 
of  appeal,  "Service  admitted,"  giving  the 
date,  and  signed  by  the  attorneys  of  the 
adverse  party,  means  that  personal  service 
was  admitted.  Brown  v.  Green,  65  Cal. 
221;  3  Pac.  811. 

Service  upon  one  having  charge  of  office. 
Where  a  notice  of  ajijieal  was  left  in  a 
conspicuous  place  upon  the  desk  in  the 
oflBee  of  the  attorney  for  the  party  to  be 


served,  during  his  absence  therefrom,  and 
in  the  presence  of  the  person  in  charge 
of  the  office  at  the  time,  and  after  calling 
his  attention  to  the  paper  thus  served,  the 
notice  was,  in  contemplation  of  law,  left 
with  a  person  having  charge  of  the  office, 
as  provided  in  this  section,  and  the  stTvice 
was  sufficient.  People  v.  Perris  Irrigation 
Dist.,  142  Cal.  601;  76  Pac.  381.  The  clerk 
or  other  person  in  charge  of  the  office  of 
the  attorney  of  the  adverse  party,  upon 
whom  the  statute  permits  a  written  notice 
to  be  served,  has  no  implied  authority  to 
waive  the  written  notice,  or  to  bind  his 
principal  by  any  agreement  in  reference 
to  the  case.  Page  v.  Superior  Court,  122 
Cal.  209;  54  Pac.  730. 

Service  at  residence  or  by  mail.  The 
service  by  mail  authorized  by  this  section 
does  not  contemplate  a  delivery  as  a  part 
of  the  service,  as  by  the  provision  of 
§  1013,  post,  the  service  is  complete  at  the 
time  of  deposit  in  the  post-office;  such  a 
service  is  termed  a  substituted  service,  and 
is  intended  to  take  the  place  of,  and  to 
be  equivalent  in  point  of  law  and  in  effect 
to,  a  personal  service;  but,  as  such  service 
is  contrary  to  the  general  rule,  it  is  in- 
cumbent upon  a  party  who  would  avail 
himself  of  such  substituted  service,  to  have 
it  clearly  appear  upon  the  record  that  the 
ease  is  one  in  which  such  service  is  per- 
mitted, and  that  the  mode  pointed  out  by 
the  statute  for  making  such  service  has 
been  strictly  followed.  Heinlen  v.  Heil- 
bron, 94  Cal.  636;  30  Pac.  8.  Absence 
from  the  state,  of  a  purchaser  at  sheriff's 
sale,  does  not  excuse  the  service  of  notice 
of  motion  to  set  aside  the  sale;  personal 
service  is  not  required:  the  notice  may  be 
served  by  leaving  it  at  his  residence,  if 
known,  with  some  person  of  suitable  age 
and  discretion,  or,  if  his  residence  is  not 
known,  by  inclosing  it  in  an  envelope  and 
depositing  it  in  the  post-office,  addressed  to 
him.  Eckstein  v.  Calderwood,  34  Cal.  658. 
In  the  case  of  known  residence  in  the 
same  city,  the  service  must  be  made  at 
such  place,  as  prescribed  in  this  section: 
service  by  mail  is  improper.  Ko.yer  v. 
Benedict,  4  Cal.  App.  48;  87  Pac.  231. 

Constructive  service.  In  all  cases  in 
which  the  statute  allows  a  constructive 
service,  or  in  which  jurisdiction  may  be 
obtained  by  a  prescribed  form  of  notice, 
of  which  the  real  party  in  interest  had  no 
actual  notice,  and  did  not  appear  or  sub- 
ject himself  to  the  jurisdiction  of  the 
court,  the  mode  of  service  prescribed  by 
the  statute  must  be  strictly  pursued.  Peti- 
tion of  Tracey,  136  Cal.  385;  69  Pac.  20. 

Service  by  posting.  Service  of  notice 
by  posting  upon  the  property  affected  con- 
stitutes an  excejDtion  to  the  rule  requiring 
personal  notice,  and  he  who  would  avail 
himself  thereof  must  establish  by  proof 
the  facts  bringing  the  case  within  the  ex- 
ception. Hall  V.  Capps,  107  Cal.  513;  40 
Pac.  809. 


1167 


SERVICE,  PROOF  OP — DEFECTIVE  SERVICE. 


§1011 


Service  on  Sunday  or  holiday.  The  ser- 
vice of  a  proposed  statement  is  not  in- 
valid or  void  because  made  on  a  Sunday 
or  on  a  legal  holiday,  although  it  need  not 
have  been  made  until  the  following  <lay; 
nor  is  such  service  "judicial  business," 
within  the  meaning  of  §  5  of  arti'de  VI  of 
the  constitution.  Reclamation  District  v. 
Hamilton,  112  Cal.  603;  44  Pac.  1074. 

Objections  to  service.  An  objection, 
that  an  amemled  complaint  was  served  on 
the  appellant  personally,  and  not  on  bis 
attorney,  must  be  taken  in  the  lower  court 
by  motion,  and  will  not  be  entertained  for 
the  first  time  on  appeal.  Campbell  v.  West, 
93  Cal.  653;  29  Pac.  219.  Notice  of  the 
presentation  of  a  proposed  statement  or 
bill  of  exceptions,  and  the  amendments 
thereto,  to  the  judge  for  settlement,  pur- 
suant to  §650,  ante,  is  essential;  and  sub- 
sequent notices  of  the  fact  of  presenta- 
tion, after  it  has  been  made,  and  of  a  time 
for  settlement,  are  too  late,  and  it  is  error 
for  the  judge  to  settle  the  statement  or 
bill,  against  the  objection  of  the  adverse 
partv.  Witter  v.  Andrews,  122  Cal.  1;  54 
Pac."276. 

Defective  service,  power  of  court.  The 
premature  service  of  a  notice  of  intention 
to  move  for  a  new  trial,  or  the  failure  to 
serve  such  notice,  cannot  deprive  the  ap- 
pellate court  of  jurisdiction  to  hear  an 
appeal  from  an  order  denying  the  motion, 
nor  constitute  ground  for  dismissing  the 
appeal.  Bell  v.  Staacke,  137  Cal.  307;  70 
Pac.  171.  Under  no  circumstances  is  the 
discretion  of  the  court  in  striking  out  an 
answer,  not  served  in  the  mode  prescribed 
by  statute,  to  be  exercised  arbitrarily,  but 
it  must  be  governed  by  legal  rules,  in  or- 
der to  do  justice  according  to  law,  or  to 
the  analogies  of  law,  as  near  as  may  be, 
and  it  must  be  exercised,  within  these  limi- 
tations, so  as  to  promote  substantial  jus- 
tice in  the  case.  Lybecker  v.  Murray,  58 
Cal.  186;  and  see  Ex  parte  Hoge.  48  Cal. 
3;  Ex  parte  Marks,  49  Cal.  680.  It  is 
error  to  strike  out  an  answer  filed  in  time, 
but  not  served  until  two  davs  afterwards. 
Lybecker  v.  Murray,  58  Cal.'^  186. 

Service,  and  not  proof  of  service,  gives 
jurisdiction.  The  fact  of  the  service,  and 
not  the  proof  of  the  service,  gives  the 
court  jurisdiction;  and  where  the  service 
was  in  fact  made,  but  proof  thereof  is 
defective  or  insufficient,  the  court  may 
allow  the  proof  of  service  to  be  amended 
and  filed  nunc  pro  tunc  as  of  the  date  of 
the  judgment.  Herman  v.  Santee.  103  Cal. 
519;'  42  Am.  St.  Rep.  145;  37  Pac.  509. 
The  fact  of  the  service  of  notice,  rather 
than  the  evidence  thereof,  gives  the  court 
jurisdiction,  and  service  of  a  notice  of 
appeal  may  be  shown  in  other  modes  than 
by  being  incorporated  in  the  transcript. 
Sutter  County  v.  Tisdale,  128  Cal.  180;  60 
Pac.  757. 

Proof  of  service,  sufficiency  of.  The 
record   must   contain   evidence   of   the   ser- 


vice of  the  notice  of  intention  to  move  for 
a  new  trial,  or  it  must  clearly  ajjpcar 
therefrom  that  service  of  the  notice  was 
waive<l.  Calderwood  v.  Brooks,  28  Cal. 
151.  Proof  of  service,  not  personal,  must 
show  a  strict  compliance  with  the  require- 
ments of  the  statute;  and  where  made  by 
leaving  the  notice  at  the  attorney's  office, 
it  must  appear  whether  it  was  left  with 
his  clerk,  or  with  the  person  in  charge,  or 
in  a  consjiicuous  place  therein,  and  that 
at  the  time  of  service  the  attornev  was 
absent.  Doll  v.  Smith,  32  Cal.  475.  In 
case  of  constructive  service,  by  leaving 
the  notice  in  a  conspicuous  place  in  the 
office,  the  proof  must  show  that  the  attor- 
ney served  was  at  such  time  absent  from 
his  office.  Dalzell  v.  Superior  Court,  67  Cal. 
453;  7  Pac.  910.  A  statement  on  the  back 
of  a  notice  of  motion  for  a  new  trial, 
signed  by  the  attorney  of  the  moving 
party  stating  that  the  notice  was  served 
at  a  certain  time,  is  not  evidence  of  ser- 
vice. Calderwood  v.  Brooks,  28  Cal.  151. 
Where  a  decree  recites  due  service  of  no- 
tice by  publication  or  by  posting,  such 
recital  is  sufficient  to  prove  service,  as 
against  a  collateral  attack.  Crew  v.  Pratt. 
119  Cal.  139;  51  Pac.  38.  The  proof  of 
service  of  a  notice  of  appeal,  originally 
defective,  may  be  cured  by  an  affiilavit 
filed  in  pursuance  of  leave  granted  for 
that  purpose.  Schloesser  v.  Owen,  134  Cal. 
546;  66  Pac.  726.  The  notice  of  setting  a 
cause  for  trial  in  a  justice's  court  is  juris- 
dictional, and  must  be  served  as  prescribed 
in  this  chapter,  and  proof  of  such  service 
is  as  essential  as  in  case  of  the  summons; 
the  notice  cannot  be  verbal,  and  cannot 
be  waived  by  conversation  over  the  tele- 
phone, in  which  the  attorney  for  the  de- 
fendant consented  to  the  setting  of  the 
case.  Elder  v.  Justice's  Court,  136  Cal. 
364;  68  Pac.  1022. 

Proof  of  service  by  affidavit.  The  ser- 
vice of  a  notice,  if  not  shown  by  an 
official  certificate,  or  by  the  admission  of 
the  party  served,  must  be  proved  by  the 
affidavit  of  some  competent  person,  and 
the  affidavit  of  a  third  person  is  entitled 
to  as  much  weight  as  that  of  the  party  or 
his  attorney.  Moore  v.  Besse,  35  Cal.  184. 
An  affidavit  of  service  of  notice  upon  an 
attorney  is  insufficient  to  show  construct- 
ive service,  by  leaving  the  notice  at  his 
office,  if  his  absence  from  his  office  is  not 
deducible  from  the  facts  stated.  Dalzell 
v.  Superior  Court,  67  Cal.  453;  7  Pac.  910. 
An  affidavit  stating  that  the  affiant  left  a 
true  copy  of  the  notice  at  the  office  of 
the  attorneys  for  the  defendant,  naming 
them,  is  insufficient  to  prove  service  of 
the  notice.  Gallardo  v.  Atlantic  etc.  Tele- 
graph Co.,  49  Cal.  510.  The  affidavit  of 
service,  in  cases  other  than  actual  personal 
service,  must  show  that  all  the  require- 
ments of  the  law  to  effect  service  have 
been  complied  with,  and  also  the  existence 
of    the    conditions    authorizing    service    in 


§1011 


NOTICES,    AND   FILING  AND   SERVICE   OF   PAPERS. 


1168 


the  mode  adopted.  Mohr  v.  Byrne,  131 
Cal.  288;  63  Pac.  341.  An  affidavit  of  ser- 
vice, stating  that  the  notice  was  served 
on  the  attorney  for  the  respondent  by 
leaving  it  on  the  desk  of  the  attorney,  in 
the  front  room  of  his  law  office,  between 
the  hours  of  eight  in  the  morning  and  six 
in  the  afternoon,  and  that  there  was  no 
person  in  said  front  room  at  the  time,  is 
insufficient  to  show  constructive  service  of 
the  notice  upon  the  attorney  during  his 
absence  from  his  office.  Dalzell  v.  Superior 
Court,  67  Cal.  453;  7  Pac.  910.  A  new 
affidavit  of  service,  free  from  objection, 
may  be  filed,  by  leave,  in  the  appellate 
court,  to  obviate  an  objection  to  the  origi- 
nal proof  of  service.  Martin  v.  Ornelas, 
139  Cal.  41;  72  Pac.  440.  The  fact  of 
service  of  notice  of  appeal  from  a  jus- 
tice's court  may  be  proved  by  affidavit, 
pending  a  motion  to  dismiss.  Dalzell  v. 
Superior  Court,  67  Cal.  453;  7  Pac.  910. 

What  constitutes  personal  service.  See  note  16 
L.  R.  A.  200. 

First  and  last  days  in  computing  time  on  mo- 
tions and  orders.    See  note  49  L.  R.  A.  222. 

CODE  COMMISSIONERS'  NOTE.  1.  Service 
on  attorney,  where  attorneys  have  been  changed. 
If  the  attorney  in  an  action  is  changed,  but 
no  regular  substitution  made,  in  the  manner 
pointed  out  by  §  285  of  this  code,  all  notices 
mav  be  served  on  the  attorney  of  record.  Grant 
V.  White,  6  Cal.  55;  Roussin  v.  Stewart,  33  Cal. 
208  ;    see  §  285,  ante,  and  notes. 

2.  Evidence  of  service  of  notice.  The  follow- 
ing indorsement  appeared  upon  the  notice  of  the 
defendant's  motion  for  a  new  trial:  "Service 
admitted  of  the  within  notice,  Nov.  17th,  1863. 
Served  D.  C,  Nov.  17th,  1863,  by  sending  notice 
in  envelope  (paying  postage)  directed  to  D.  C. 
San  Francisco.  W.  H.  F."  The  notice  was 
signed  by  "W.  H.  F.,  attorney  for  the  defend- 
ant." The  indorsement  affords  no  evidence  of 
the  service,  for  it  is  not  an  admission  by  the 
plaintiff  of  service,  and  the  service  by  mail  is 
not  verified  by  the  certificate  of  an  officer  au- 
thorized to  make  service,  nor  by  the  affidavit  of 
any  person.  Service  upon  a  party  may  be  per- 
sonal, or  by  leaving  the  notice  at  his  residence, 
or  by  mail,  if  his  residence  is  not  known.  It 
does  not  appear  that  the  plaintiff's  residence 
was  unknown,  and  therefore  the  service  by  mail 
did  not  constitute  a  legal  service.  Calderwood  v. 
Brooks,  28  Cal.  154. 

3.  Waiver  of  service  of  notice.  If  it  is  not 
shown  by  the  record  that  the  party  opposing  an 
application  for  new  trial  proposed  any  amend- 
ments to  the  statement,  or  participated  in  its 
settlement,  it  will  be  presumed  that  he  waived 
service  of  notice.  Calderwood  v.  Brooks,  28  Cal. 
154. 

4.  When  acknowledgment  of  service  does  not 
waive  objection  that  service  was  made  too  late. 
It  is  claimed  that  the  appeal  from  the  order 
refusing  a  new  trial  was  not  taken  within  sixty 
days  after  the  order  was  made,  and  that  there- 
fore the  appeal  from  that  order  must  be  dis- 
missed. To  this  it  is  replied,  that  the  respondent 
has  waived  this  objection  by  the  terms  of  his 
acceptance  of  the  service  of  notice  of  appeal, 
which  is  in  these  words:  "Due  service  of  a 
copy  of  the  within  notice  is  hereby  accepted 
to  have  been  made  this  twentieth  day  of  Feb- 
ruary, 1863,"  and  we  are  referred  to  the  cases 
of  Talman  v.  Barnes,  12  Wend.  227,  and  Struver 
V.  Ocean  Ins.  Co.,  9  Abb.  Pr.  23.  In  those 
cases  it  was  held  that  an  admission  of  "due 
service  of  a  notice"  is  a  waiver  of  the  objection 
that  it  was  not  served  in  time.  In  this  case  the 
acceptance  only  admits  that  the  notice  was  duly 
served    at    a    certain    date,    and    cannot    be    con- 


sidered   as    a    waiver    of    the    objection.     Towdy 
V.  Ellis,  22  Cal.  657. 

5.  Affidavit  of  service  of  notice  of  appeal 
may  contain  what.  The  affiant,  in  his  affidavit 
of  service,  says  he  "served  the  within  notice  on 
the  plaintiff,  by  leaving  a  copy  of  the  same  at 
the  office  of  J.  G.  D.,  plaintiff's  attorney,  in 
the  town  of  Red  Bluff,  on  the  23rd  day  of  July, 
1866."  This  affidavit  fails  to  show  a  number 
of  facts  essential  to  constitute  a  valid  service. 
It  does  not  appear  whether  the  attorney  was 
absent,  or  whether  any  clerk  was  present,  or 
anybody  in  charge  of  the  office  or  not.  If  the 
attorney  is  present,  the  service  must  be  per- 
sonal; if  a  clerk,  or  some  one  in  charge  of  the 
office,  it  is  necessary  to  leave  the  notice  with 
such  clerk,  or  person  in  charge.  If  no  one  is 
present,  it  must  be  left  "in  a  conspicuous  place 
in  the  office."  In  this  instance,  for  aught  that 
appears  to  the  contrary,  it  may  have  been  put 
in  the  stove,  or  some  other  place  where  it  was 
not  likely  to  be  found.  If  there  was  no  person 
in  the  office,  service  could  only  be  effected  by 
leaving  the  notice  "between  the  hours  of  eight 
in  the  morning  and  six  in  the  afternoon."  The 
time  when  the  notice  was  left  does  not  appear. 
The  affidavit  fails  to  show  these  essential  facts, 
and  therefore  fails  to  show  a  valid  service. 
Doll  V.   Smith.  32  Cal.  476. 

6.  Service  of  notice  of  appeal  supplying  proof 
of  service  pending  appeal.  The  statute  does  not 
expressly  provide  how  proof  of  service  of  the 
notice  of  appeal  must  be  made.  It  is  not 
doubted  that  the  certificate  of  the  sheriff,  or  the 
admission  of  the  respondent's  attorney,  is  com- 
petent proof  of  service;  but  it  is  insisted  that 
service  cannot  be  proved  by  the  affidavit  of  a 
third  person.  The  practice  of  proving  service 
by  affidavit  has  prevailed  for  many  years,  and, 
so  far  as  we  are  apprised,  without  objection  to 
the  present  time.  Service  of  the  notice,  if  not 
shown  by  an  official  certificate,  or  by  the  admis- 
sion of  the  party  served,  must  be  proven  by  the 
affidavit  of  some  competent  person.  No  reason 
is  suggested,  and  none  occurs  to  us,  why  less 
value  should  be  assigned  to  the  affidavit  of  a 
third  person  than  to  that  of  the  appellant  or 
his  attorney.  The  affidavit  on  which  the  appel- 
lant relies  for  proof  of  service  is  defective.  The 
affiant,  acting  in  behalf  of  the  appellant  and 
his  attorneys,  mailed  a  copy  of  the  notice  at 
Santa  Cruz,  directed  to  respondent's  attorneys 
at  San  Francisco ;  but  he  does  not  state  that 
he,  or  those  for  whom  he  acted,  resided  at 
Santa  Cruz.  This  code  (§  1012)  provides  that 
"service  by  mail  may  be  made  when  the  person 
making  the  service,  and  the  person  on  whom  it 
is  to  be  made,  reside  in  different  places,  be- 
tween which  there  is  a  regular  communication 
by  mail."  The  notice  of  appeal  is  signed  by 
appellant's  attorney,  and  he,  and  not  his  agent, 
must  be  regarded  as  "the  person  making  the 
service."  Schenck  v.  McKie,  4  How.  Pr.  245. 
No  presumption  arises  that  he  resided  at  Santa 
Cruz  from  the  circumstance  that  the  action  was 
tried  at  that  place.  The  fact  that  he  resided 
there  should  have  been  shown  by  the  affidavit, 
under  the  rule  that  a  party  relying  upon  sub- 
stituted service  must  show  a  strict  compliance 
with  the  requirements  of  the  statute.  People 
V.  Alameda  Turnpike  Road  Co.,  30  Cal.  182; 
Doll  V.  Smith,  32  Cal.  475.  The  counsel  did  not 
offer  to  supply  the  facts  omitted  from  the  affi- 
davit. We  have  heretofore  indicated  the  course 
to  be  pursued  in  this  respect.  When  the  notice 
of  appeal  has  been  properly  served,  whether  by 
personal  or  substituted  service,  the  appellant, 
upon  the  hearins  of  the  respondent's  motion  to 
dismiss  the  appeal  on  the  ground  that  there  is 
no  proof  of  service,  or  that  the  proof  is  defective, 
may  move  for  leave  to  supply  the  omitted  proof. 
Upon  leave  being  granted,  the  appellant  may 
file  in  the  court  below  the  requisite  affidavit, 
or  official  certificate  of  service,  and  a  certified 
copy  thereof  may  be  annexed  to  the  record  in 
this  court.  This  proof  may  be  made  and  the 
certified  copy  procured  before  the  hearing  of 
the  respondent's  motion,  when  there  is  sufficient 
time  after  the  defect  is  discovered.  Moore  v. 
Besse,  35  Cal.  166,  187. 


1169 


SERVICE  BY  MAIL — PROOF  OP. 


§§  1012,1013 


§  1012.  Service  by  mail,  when.  Service  bj^  mail  may  be  made,  where  the 
person  making  the  service,  and  the  person  on  whom  it  is  to  be  made,  reside 
or  have  their  offices  in  different  places,  between  which  there  is  a  regular 
communication  by  mail. 


Legislation  g  1012.  1.  Knacted  March  11, 
18~U,  in  the  exact  lanf;iia<rp  of  Practice  Act, 
§   r>-2l    (New  York  Code,    S   -110). 

2.  Amended  by  Code  Amdts.  1873-74,  p.  343. 
insortiiiR  "or  have  their  offices"  after  "reside." 

Sufficiency   of    affidavit   of   service.     To 

brin<j  a  case  within  this  section,  it  must 
be  showu  by  affidavit  that  the  parties 
"reside  or  have  their  offices  in  different 
places";  if  they  have  a  known  residence 
in  the  same  city,  §  1011,  ante,  is  ai)plica- 
ble.  Koyer  v.  Benedict,  4  Cal.  App.  4S; 
87  Pac.  231.  An  affidavit  of  service  by 
mail  is  insufficient,  if  it  does  not  show 
that  the  attorneys  for  the  plaintiff  and 
the  defendant  reside  in  different  places 
and  that  there  is  a  regular  communication 
by  mail  between  them.  Rubenstiue  v.  Su- 
perior Court,  18  Cal.  App.  128;  122  Pac. 
820;  Linforth  v.  White,  129  Cal.  188;  61 
Pac.  910.  Service  by  mail,  of  notice  of 
default  in  a  justice's  court,  is  insufficient, 
if  it  fails  to  show  that  the  person  who 
made  the  service  and  the  person  served 
resided  or  had  offices  at  different  places. 
Towusend  v.  Parker,  21  Cal.  App.  317;  131 
Pac.  766. 


Service  by  mail.    See  note  post,  §  1013. 

CODE  COMMISSIONERS'  NOTE.  See  note 
6  to  §  1011,  ante;  Moore  v.  Besse,  3,5  Cal.  186. 
A  party  relying  upon  a  service  by  mail  or  other- 
wise tlian  by  actual  service  on  the  proper  per- 
son, must  show  a  strict  compliance  with  the 
ref|uirements   of  the  statute.     Hross  v.   Nicholson, 

1  How.  Pr.  158;  Schenck  v.  McKie,  4  How.  Pr. 
247;  also  Anonymous,  1  Hill  (N.  Y.),  217. 
218;  Smith  v.  Acker,  23  Wend.  677;  Birdsall 
V.    Taylor,    1    How    Pr.    89;    Paddock    v.    Beebee, 

2  Johns.  Cas.  (N.  Y.)  117.  It  will  be  observed 
that  by  §  1012  of  this  code,  service  by  mail  is 
good  only  where  the  person  making  the  service, 
and  the  person  on  whom  it  is  to  be  made,  reside 
in  different  places  between  which  there  is  no 
regular  communication  by  mail.  The  affidavit 
of  P.  does  not  show  that  there  was  a  regular 
communication  by  mail  b<'tween  his  place  of 
re.sidence  and  the  place  of  residence  of  defend- 
ant's attorneys,  nor  that  there  was  any  com- 
munication whatever  by  mail  between  tlie  two 
places,  and  we  cannot  judicially  know  or  intend 
there  was.  The  affidavit  fails  to  show  that  the 
service  attempted  to  be  made  was  effectual. 
Where  service  is  sought  to  be  made  by  mail,  it 
should  appear  that  the  conditions  on  which  its 
validity  depends  had  existence,  otherwise  the 
evidence  must  be  held  insuflicient  to  establish 
the  fact  of  service.  People  v.  Alameda  Turn- 
pike Road  Co.,  30  Cal.  184. 


§1013.  Service  by  mail,  how.  In  case  of  service  by  mail,  the  notice  or 
other  paper  must  be  deposited  in  the  post-office,  in  a  sealed  envelope,  ad- 
dressed to  the  person  on  whom  it  is  to  be  served,  at  his  office  or  place  of 
residence,  and  the  postage  paid.  The  service  is  complete  at  the  time  of 
the  deposit,  but  if,  within  a  given  number  of  days  after  such  service,  a  right 
may  be  exercised,  or  an  act  is  to  be  done  by  the  adverse  party,  the  time 
within  which  such  right  may  be  exercised  or  act  be  done  is  extended  one 
day  for  every  twenty-five  miles  distance  between  the  place  of  deposit  and 
the  place  of  address;  such  extension,  however,  not  to  exceed  thirty  davs  in 
all. 


Distance.    Ante,  §  1005. 

Legislation  §  1013.  1.  Enacted  March  11, 
187a;  b,-\sed  on  Practice  Act,  §  522,  as  amended 
by  Stats.  1861,  p.  497,  which  read:  "In  case  of 
service  by  mail,  the  notice,  or  other  paper,  shall 
be  deposited  in  the  post-oflice,  addressed  to  the 
person  on  whom  it  is  to  be  served,  at  his  place 
of  residence,  and  the  postage  paid.  And  in  such 
case,  the  time  of  service  sliall  be  increased  one 
day  for  every  twenty-five  miles  distance,  between 
the  place  of  deposit  and  the  place  of  address; 
provided,  that  service  in  any  case  shall  be  deemed 
complete  at  the  end  of  ninety  days  frnni  tlie  date 
of  its  deposit  in  the  post-office."  When  §  1013 
was  enacted  in  1872,  it  read  the  same  as  at  pres- 
ent, except  for  the  amendments  of  1873—74  and 
1907. 

2.  Amended  by  Code  Amdts.  1873-74.  p.  343. 
(1)  inserting  "office  or"  after  "his";  (.2)  chan- 
ging semicolon  to  comma  after  "deposit"  and 
after  "address." 

3.  Amendment  by  Stats.  1901,  p.  178;  un- 
constitutional.    See  note  ante.  §  5. 

4.  Amended  by  Stats.  1907,  p.  602,  (1)  in; 
serting  "in  a  sealed  envelope"  after  "post-office," 
and  (2)  substituting  "thirty"  for  "ninety":  the 
code  commissioner  saying,  "Directs  that  notices 
deposited   in    the   post-office   be   inclosed   in   sealed 

1  Fair. — 74 


envelopes,   and  substitutes   'thirty'   for   'ninety'   in 
the  last  line." 

Application  of  section.  This  section 
applies,  according  to  its  terms,  where  some 
act  must  be  done  or  right  exercised  within 
a  certain  number  of  ^iays  after  service, 
and  not  to  the  ri^ht  to  be  present  at  a 
proceeding,  of  which  a  prescribed  notice 
must  be  given;  hence,  it  does  not  ai>itly  to 
a  notice  of  the  time  set  for  the  justifica- 
tion of  the  sureties  on  an  appeal  bond 
(Brown  v.  Eouse,  11-5  Cal.  619;  47  Pac. 
601);  nor  does  it  apply  where  notice  that 
a  cause  has  been  set  for  trial  has  been 
given  by  mail;  and  the  party  so  notified 
cannot  claim  the  time  given  by  this  sec- 
tion after  the  mailing  of  such  notice,  be- 
fore a  legal  trial  can  be  had.  Eltzroth  v. 
Eyan,  91  Cal.  5S4;  27  Pac.  9;i2.  The  time 
of  filing  a  paper,  such  as  a  notice  of  ap- 
peal, where  the  same  is  forwarded  to  the 


§1014 


NOTICES^   AND   FILING   AND    SERVICE   OP   PAPERS. 


1170 


clerk  by  mail,  is  not  extended  by  the  pro- 
visions of  this  section.  McDonald  v.  Lee, 
132  Cal.  252;  6-1  Pac.  250.  This  section 
has  been  applied  to  the  service  of  amend- 
ments to  a  proposed  bill  of  exceptions  to 
be  used  on  motion  for  a  new  trial.  Pre- 
fumo  V.  Russell,  148  Cal.  451;  83  Pac.  810. 

Essentials  of  service  by  mail.  A  notice 
of  appeal  need  not  be  deposited  in  the 
post-otfice  at  any  particular  place:  the  only 
essentials  are  residence  or  offices  in  dif- 
ferent places,  and  a  regular  mail  com- 
munication between  the  place  of  mailing 
and  the  place  of  destination.  Luck  v. 
Luck,  83  Cal.  574;  23  Pac.  1035. 

Person  making  service.  Where  service 
is  made  by  mail,  and  the  notice  of  appeal 
is  signed  by  the  appellant's  attorney,  he, 
and  not  his  agent  who  deposits  the  paper 
in  the  post-office,  must  be  regarded  as  the 
person  making  the  service.  Moore  v.  Besse, 
35  Cal.  184. 

Service  is  complete  when.  The  service 
of  notice  of  appeal  is  complete  at  the  time 
of  the  deposit  in  the  post-office,  where  the 
service  is  made  by  mail;  and  the  time  to 
file  the  undertaking  on  appeal  commences 
to  run  from  the  time  of  such  deposit. 
Brown  v.  Green,  65  Cal.  221;  3  Pac.  811. 

Sufficiency  of  affidavit  of  service.  Ser- 
vice by  mail  is  good  only  where  the  per- 
son making  the  service,  and  the  person 
on  whom  it  is  to  be  made,  reside  in  differ- 
ent places,  between  which  there  is  a  regu- 
lar communication  by  mail;  and  a  party 
relying  upon  such  service  must  show  a 
strict  compliance  with  the  requirements  of 
the  statute;  and  if  the  affidavit  of  ser- 
vice does  not  show  that  there  was  a  regu- 
lar communication  by  mail  between  such 
places,  nor  that  there  was  any  communica- 
tion whatever  betv/een  the  two  places,  the 
court  cannot  judicially  know  or  intend 
that  there  was,  and  the  proof  of  service 
is  insufficient.  People  v.  Alameda  Turn- 
pike Eoad  Co.,  30  Cal.  182.  A  party  rely- 
ing upon  service  by  mail,  or  otherwise 
than  by  actual  service  upon  the  proper 
person,  must  show  a  strict  compliance  with 
the  requirements  of  the  statute;  and  the 
affidavit  of  service  should  show  that  the 
person  making  the  service  and  the  person 
served  resided  or  had  their  offices  at  dif- 
ferent places,  between  which  there  was 
regular  communication  by  mail.  People  v. 
Alameda  Turnpike  Road  Co.,  30  Cal.  182; 
Moore  v.  Besse,  35  Cal.  183;  Linforth  v. 
White,  129  Cal.  188;  61  Pac.  910.  Where 
the  affidavit  of  the  proof  of  service  by  mail 
fails  to  show  that  the  person  making  the 
service  and  the  person  on  whom  it  is  made 
reside  or  have  their  offices  in  different 
places,  between  which  there  is  a  regular 
communication   by   mail,  it   is  insufficient. 

§  1014.     Appearance.     Notices  after  appearance.     A  defendant  appears 
in  an  action  when  he  answers,  demurs,  or  gives  the  plaintiff  written  notice 


Hogs  Back  Consol.  Mining  Co.  v.  New 
Basil  Consol.  Mining  Co.,  63  Cal.  121. 
The  affidavit  must  show  where  the  parties 
reside;  and  if  both  the  party  making  the 
service  and  the  party  served  reside  or 
have  their  offices  in  the  same  place,  the 
service  should  be  personal.  Cunningham 
V.  Warnekey,  61  Cal.  507. 

Effect  of  insufficient  proof  of  service. 
A  default  entered  on  insufficient  proof  of 
service  by  mail  will  be  vacated  and  set 
aside.  Hogs  Back  Consol.  Mining  Co.  v. 
New  Basil  Consol.  Mining  Co.,  63  Cal.  121. 

Admission  of  service.  The  admission  of 
service  of  notice  of  appeal  as  of  a  certain 
day  is  an  admission  that  service  was  made 
on  that  day,  although  the  party  making 
the  service  and  the  party  served  resided 
or  had  their  offices  in  different  counties. 
Brown  v.  Green,  65  Cal.  221;  3  Pac.  811. 
Proof  of  service  in  the  record,  that  a  copy 
of  the  notice  of  appeal  had  been  deposited 
in  the  post-office,  addressed  to  the  attor- 
ney of  the  resi^ondent,  at  a  place  con- 
fessedly not  his  office  or  place  of  resi- 
dence, is  insufficient,  for  the  reason  that 
the  ai^pellant  has  failed  to  show  that  any 
notice  of  appeal  has  been  served;  juris- 
diction, however,  does  not  depend  upon 
the  proof  of  service,  but  upon  the  fact 
that  service  has  been  made;  and  on  a 
motion  to  dismiss  an  appeal  upon  the 
ground  that  the  record  does  not  show  a 
sufficient  service  of  the  notice,  the  appel- 
lant may  show  by  other  proof  that  the 
notice  was  properly  served,  and  an  affi- 
davit by  the  attorney  for  the  respondent, 
that  he  actually  received  such  notice 
through  the  post-office,  is  sufficient.  Hein- 
len  V.  Heilbron,  94  Cal.  636;  30  Pac.  8. 

Time  and  distance  computed  how.  Un- 
der this  section  and  §  650,  ante,  where 
notice  of  a  decision  is  served  by  mail  upon 
the  attorney  of  the  adverse  party,  whose 
office  and  residence  are  distant  seventy 
miles  from  the  place  of  deposit,  the  latter 
has  twelve  days  from  the  date  of  the  de- 
posit within  which  to  serve  and  file  a 
notice  of  his  intention  to  move  for  a  new 
trial.  Sullivan  v.  Wallace,  73  Cal.  307; 
14  Pac.  789.  The  distance  between  the 
place  of  mailing  the  notice  and  the  place 
to  which  it  is  addressed  is  a  question  of 
fact,  to  be  determined  by  proper  evidence; 
and  the  act  of  the  legislature  defining  the 
legal  distances  from  each  county  seat  to 
the  state  capitol,  etc.,  has  no  application, 
being  made  for  the  purpose  of  computing 
the  mileage  allowances  for  certain  officers. 
Neely  v.  Naglee,  23  Cal.  154. 

CODE  COMMISSIONERS'  NOTE.  See  §  1005. 
If  a  notice  is  served  liy  mail,  the  distance 
which  it  is  required  to  travel  is  a  fact  to  be 
determined  by  proper  evidence.  Neely  v.  Naglee, 
23  Cal.  154. 


1171 


APPEARAXCE — WHAT  CONSTITUTES. 


§  IQU 


of  his  appearance,  or  Avlicn  an  attorney  gives  notiee  of  appearance  for  him. 
After  appearance,  a  defendant  or  liis  attorney  is  entitled  to  notice  of  all 
subsequent  proceedings  of  which  notice  is  required  to  be  given.  But  where 
a  defendant  has  not  appeai-ed,  service  of  notice  or  papers  need  not  be  made 
upon  him  unless  he  is  imprisoned  for  want  of  bail. 

\ntc,  §§  400,       ant  from  insisting  upon  a  dismissal  of  the 


Appearance,  waiver  of  summons. 
41(i. 

Notice  of  subsequent  proceedings,  how  given. 
Post,  s  ioir>. 

Appearance  in  forcible  entry  and  detainer,  be- 
fore day  fixed.    Sop  post,  §  1170. 

Legislation  S  1014.  Enactpd  March  11,  1872; 
based  on  Practice  .\ct,  §  523  (New  York  Code, 
§  414),  substituting  (1)  "appears"  for  "shall  be 
deemed  to  appear,"  (2)  "is"  for  "shall  be,"  and 
(3)  "is"  for  "be"  before  "imprisoned." 

Object  of  section.  This  section  was  in- 
tended to  settle  all  disputes  as  to  what 
shall  eon.stitute  an  appearance.  Vrooman 
V.  Li  Po  Tai,  113  Cal.  302;  4.^  Pac.  470; 
McDonald  v.  Agnew,  122  Cal.  448;  .55  Pac. 
125;  Salmonson  v.  Streiffer,  13  Cal.  App. 
395;  110  Pac.  144;  Western  Lumber  etc. 
Co.  V.  Merchants'  Amusement  Co.,  13  Cal. 
App.  4;  108  Pac.  891;  and  see  Steinbach  v. 
Leese,  27  Cal.  293. 

Construction  of  section.  The  words  "an- 
swers" and  "demurs,"  as  used  in  this  sec- 
tion, are  obviously  words  of  enumeration, 
and,  on  appeal,  the  court  will  not,  on 
recognized  principles,  interpolate  into  the 
text,  notices  of  motions  for  new  trials, 
notices  of  appeal,  or  any  other  paper 
served  incidentally  in  the  conduct  of  .judi- 
cial proceedings,  the  direct  and  principal 
purpose  of  which  is  to  give  notice,  not  of 
appearance,  but  of  a  step  taken,  or  about 
to  be  taken,  in  the  cause.  Steinbach  v. 
Leese,  27  Cal.  293. 

What  constitutes  appearance.  A  de- 
fendant cannot  appear  in  an  action  so  as 
to  give  the  court  jurisdiction  of  his  per- 
son, except  by  answering,  demurring,  or 
giving  the  plaintiff  written  notice  that  he 
appears.  Steinbach  v.  Leese,  27  Cal.  295. 
Verbal  authority  to  enter  judgment,  given 
by  a  defendant  to  a  plaintiff,  is  not  an 
appearance  in  the  action,  nor  a  power  of 
attorney  to  confess  judgment:  it  cannot 
take  the  place  of  an  answer  upon  the  judg- 
ment roll,  so  as  to  dispense  with  the  sum- 
mons and  return  as  part  thereof.  Siskivou 
County  Bank  v.  Hoyt,  132  Cal.  81;  64  Pac. 
118.  The  written  consent  of  the  defend- 
ant to  the  entry  of  judgment  as  prayed, 
signed  by  his  attorney,  constitutes  a  suffi- 
cient appearance.  Foote  v.  Richmond,  42 
Cal.  439.  An  unfiled  stipulation  that  the 
plaintiff  may  at  any  time  enter  a  default 
of  the  defendant,  and  take  judgment 
thereon,  and  that  execution  should  be 
stayed  while  specified  payments  were 
made,  is  in  lieu  of  an  answer  admitting 
the  allegations  of  the  complaint,  and  is  a 
consent  to  the  jurisdiction  of  the  court, 
and  to  the  entry  of  the  appearance  of  the 
defendant,  and  of  judgment  after  the  time 
limited  by  statute,  and  estojis  the  defeud- 


action,  on  the  ground  that  the  plaintiff 
has  not  served  the  summons  within  three 
years,  or  prosecuted  the  action  with  dili- 
gence. Cooper  v.  Gordon,  125  Cal.  296;  37 
Pac.  1006.  A  stipulation  extending  the 
time  to  plead,  if  it  could  be  considered 
as  an  a[)pearance,  must  be  made  before 
the  expiration  of  the  three  years  {pre- 
scribed by  §  3S1,  ante,  or  it  cannot  be  held 
a  bar  to  a  dismissal.  Grant  v.  Mc Arthur. 
137  Cal.  270;  70  Pac.  88.  The  taking  an<l 
filing  of  a  stipulation  extending  the  time 
to  answer,  and  accepting  and  acting  upon 
an  agreement  contained  therein  to  grant 
successive  extensions  in  consideration  of 
certain  payments  made,  does  not  consti- 
tute an  appearance.  Vrooman  v.  Li  Po 
Tai,  113  Cal.  302;  45  Pac.  470.  A  notice 
that  the  defendant  will  move  to  dissolve 
an  attachment  issued  in  a  cause  is  not 
such  an  appearance  in  the  case  as  will 
authorize  a  judgment  by  default.  Glidden 
V.  Packard,  28  Cal.  649. 

Voluntary  appearance  confers  jurisdic- 
tion. Where  the  court  cannot  acijuire 
jurisdiction  of  an  action,  except  by  trans- 
fer from  another  court,  the  voluntary  ap- 
pearance of  the  defendant  cannot  confer 
jurisdiction.  Descalso  v.  Municipal  Court, 
60  Cal.  296.  .After  the  voluntary  appear- 
ance of  a  non-resident  defendant,  the  court 
has  jurisdiction  to  render  a  personal  judg- 
ment against  him.  Hodgkins  v.  Dunham, 
10  Cal.  App.  690;  103  Pac.  351.  The  vol- 
untary appearance  of  a  party  gives  the 
court  jurisdiction  over  his  person,  with  the 
same  effect  as  if  he  had  been  brought  in 
by  the  service  of  summons;  such  appear- 
ance, within  the  three  years  prescribed  by 
§  581,  ante,  obviates  the  necessity  of  any 
service  of  summons  within  that  period. 
Union  Savings  Bank  v.  Barrett,  132  Cal. 
453;  64  Pac.  713.  Where  an  executor  vol- 
untarily appears,  such  appearance  has  the 
same  effect  as  if  he  had  been  serveil  with 
summons.  Union  Savings  Bank  v.  Barrett, 
132  Cal.  453;  64  Pac.  713.  The  voluntary 
appearance  of  an  executor,  in  proceedings 
relating  to  the  estate,  is  a  waiver  of  tlie 
issuance  and  service  of  a  citation  on  him. 
Estate  of  .Johnson,  45  Cal.  257.  Whore  a 
person,  not  a  party  to  an  original  action, 
was  served  with  copies  of  the  order  and 
of  the  papers  on  which  it  was  based,  re- 
quiring him  to  appear  for  examination, 
and  he  did  appear  and  was  examined,  the 
court  had  jurisdiction  of  his  person  in 
the  sujiplementarv  proceedings.  Brouzau 
V.  Drobaz,  93  Cal.  647;  29  Pac.  254. 


1014 


NOTICES,    AND   FILING  AND    SERVICE   07   PAPERS. 


1172 


Appearance  by  demurrer.  A  demurrer 
constitutes  an  appearance;  and  where  a 
demurrer  is  on  tile,  and  not  acted  upon, 
a  default  cannot  be  entered.  Hestres  v. 
Clements,  21  Cal.  425;  Dudley  v.  Superior 
Court,  13  Cal.  App.  271;  110  Pac.  146.  _  A 
defendant,  by  demurring  to  a  complaint, 
necessarily  appears  and  submits  himself 
to  the  jurisdiction  of  the  court,  notwith- 
standing a  recital  in  the  demurrer  to  the 
contrary,  and  that  his  appearance  is  only 
for  the  purpose  of  demurring;  and  default 
and  judgment  for  failure  to  answer  after 
the  overruling  of  the  demurrer  may  be 
regularly  entered.  McDonald  v.  Agnew, 
122  Cal.  448;  55  Pac.  125.  In  an  action 
against  several  defendants,  one  of  whom 
had  not  been  served  with  summons,  where 
a  demurrer  was  served  and  filed,  beginning 
with  the  words,  "And  now  come  the  de- 
fendants," etc.,  and  signed  by  the  attor- 
neys of  record,  there  was  an  appearance 
of  all  the  defendants,  under  this  section. 
Rowland  v.  Coyne,  55  Cal.  1. 

Appearance  by  answer.  The  answer  of 
the  defendants  to  a  complaint  is  a  volun- 
tary appearance  by  them,  and  is  equiva- 
lent to  personal  service  upon  them  of  the 
summons  and  a  copy  of  complaint.  Ghira- 
delli  v.  Greene,  56  Cal.  629.  In  probate 
proceedings,  where  a  party  appears  and 
moves  to  dismiss  on  the  ground  of  de- 
fective service  of  the  citation,  and  upon 
the  overruling  of  such  objection,  answers 
to  the  merits,  such  answer  gives  the  court 
jurisdiction,  and  it  is  immaterial  whether 
a  citation  ever  issued.  Abila  v.  Padilla, 
14  Cal.  103.  Where  an  attorney  appears 
for  only  some  of  several  defendants,  and 
afterwards  inadvertently  files  an  answer 
for  all,  but,  on  discovering  his  mistake, 
obtains  an  order  allowing  him  to  with- 
draw his  answer  and  substitute  a  new  one 
limited  to  the  defendants  for  whom  he 
intended  to  answer,  the  court  acquires  ju- 
risdiction only  of  those  for  whom  the  at- 
torney finally  appears.  Forbes  v.  Hyde, 
31  Cal.  342.  A  voluntary  appearance  is 
a  waiver  of  all  defects  of  process,  even 
when  objection  is  taken  in  the  same  ac- 
tion; and,  under  the  practice  in  this  state, 
the  plaintiff,  by  filing  his  complaint,  goes 
himself  into  court,  and  although  he  should 
not  take  out  a  summons,  he  cannot  object 
to  the  defendant  coming  in  and  answer- 
ing, any  more  than  he  can  object  to  the 
defendant's  voluntary  appearance  after  he 
has  taken  out  a  summons  which  he  does 
not  serve;  and  quite  as  little  can  the  de- 
fendant, in  a  collateral  action,  object  that 
there  is  no  action  pending,  after  volun- 
tarily putting  in  an  answer  to  a  complaint 
on  file.   Hayes  v.  Shattuck,  21  Cal.  51. 

General  appearance.  An  appearance  for 
any  purpose,  other  than  to  question  the 
jurisdiction  of  the  court,  is  general.  Zobel 
V.  Zobel,  151  Cal.  98;  90  Pac.  191.  A 
general  appearance  by  a  defendant  waives 


all  question  as  to  the  service  of  process, 
and  is  equivalent  to  personal  service.  Cali- 
fornia Pine  Box  etc.  Co.  v.  Superior  Court, 
13  Cal.  App.  65;  108  Pac.  882;  Western 
Lumber  etc.  Co.  v.  Merchants'  Amusement 
Co.,  13  Cal.  App.  4;  108  Pac.  891;  Hodg- 
kins  V.  Dunham,  10  Cal.  App.  690;  103  Pac. 
351.  A  defendant  who  appears  and  asks 
some  relief,  which  can  be  granted  only 
on  the  hypothesis  that  the  court  has  juris- 
diction, submits  to  the  jurisdiction  of  the 
court  as  completely  as  if  he  had  been  regu- 
larly served  with  process.  Zobel  v.  Zobel, 
151  Cal.  98;  90  Pac.  191.  A  motion  to  set 
aside  the  service  of  summons  may  be  made 
without  entering  a  general  appearance  in 
the  action.  Eldridge  v.  Kay,  45  Cal.  49. 
Where  a  party  wishes  to  insist  upon  the 
objection  that  he  is  not  in  court  for  want 
of  jurisdiction  over  his  person,  he  must 
specially  appear  for  that  purpose  only,  and 
must  keep  out  for  all  other  purposes,  if 
he  would  refrain  from  making  a  general 
appearance;  and  if  he  should  raise  any 
other  question,  or  ask  for  any  relief  which 
can  only  be  granted  upon  the  hypothesis 
that  the  court  has  jurisdiction  of  his  per- 
son, his  appearance  in  general,  though 
termed  special.  Securitv  etc.  Trust  Co.  v. 
Boston  etc.  Fruit  Co.,  126  Cal.  418;  58  Pac. 
941;  59  Pac.  296.  An  appearance  for  the 
purpose,  only,  of  making  a  motion  to  dis- 
miss is  not  a  general  appearance  which 
waives  the  right  to  make  the  motion.  Lin- 
den Gravel  Mining  Co.  v.  Sheplar,  53  Cal. 
245.  Where  a  motion  to  set  aside  a  judg- 
ment shows  that  relief  is  sought  upon  the 
ground  of  the  excusable  neglect  of  the  de- 
fendant in  not  properly  examining  a  copy 
of  the  summons  and  complaint,  the  appear- 
ance of  the  attorney  for  the  defendant  is 
general,  and,  in  the  absence  of  a  substitu- 
tion of  attorneys,  a  notice  of  appeal  may 
be  served  upon  such  attorney.  Thompson 
V.  Alford,  128  Cal.  227;  60  Pac.  686.  An 
appearance  for  the  purpose  of  making  an 
application  for  a  continuance  or  postpone- 
ment of  some  matter  pending  before  the 
court,  is  a  general,  voluntary,  personal  ap- 
pearance, and  is  followed  by  the  conse- 
quences of  personal  appearance.  Zobel  v. 
Zobel,  151  Cal.  98;  90  Pac.  191. 

Special  appearance.  A  defendant  has 
the  right  to  appear  for  the  special  pur- 
pose of  moving  to  dismiss  for  a  defective 
summons;  and  where  the  court  denies  the 
motion,  a  general  appearance  afterwards, 
and  an  answer,  do  not  operate  as  a  waiver 
of  the  right,  nor  cure  the  error.  Lyman 
V.  Milton,  44  Cal.  630.  The  provision  of 
§  581,  ante,  that  an  action  shall  be  dis- 
missed if  the  summons  is  not  served  and 
returned  within  three  years,  is  mandatory; 
and  a  defendant  served  with  summons 
after  that  time  is  entitled  to  such  dis- 
missal, even  though  he  has  made  default, 
if  he  has  not  appeared  generally  in  the 
action,  but   only   specially   to   demand  the 


1173 


NOTICE — APPEARANCE  BY  ATTORNEY. 


§1014 


dismissal.  Sharpstein  v.  Eells,  132  Cal. 
507;  6-4  Pac.  lOSO.  A  notice  that  the  de- 
fendant api)ears  in  the  action  for  the  sole 
purpose  of  makings  a  motion  to  quash  the 
summons  in  the  action,  and  to  dismiss  the 
action,  is  a  suflieient  appearance  to  entitle 
the  defendant  to  be  heard  upon  the  motion. 
Lander  v.  Flemming,  47  Cal.  614.  A  spe- 
cial appearance  for  the  purpose  of  quash- 
ing the  summons  or  proof  of  service,  is 
not  a  general  submission  to  the  jurisiiic- 
tion  of  the  court.  McDonald  v.  Aguew, 
122  Cal.  44S;  55  Pac.  125.  A  special  ap- 
pearance to  move  to  dismiss,  and  to  jiro- 
cure  an  order  extending  the  time  to  plead 
one  day  after  the  ruling  on  the  motion, 
does  not  amount  to  an  appearance  author- 
izing the  entry  of  a  default.  Kennedy  v. 
Mulligan,  136"  Cal.  556;  69  Pac.  291.  A 
special  appearance  to  move  to  strike  out 
an  amended  complaint,  and,  ancillary  to 
such  motion,  to  ask  for  an  extension  of 
the  time  to  move  or  to  plead  until  such 
motion  shall  be  disposed  of,  is  not  an  ap- 
pearance, within  the  meaning  of  this  sec- 
tion. Povpers  v.  Braly,  75  Cal.  237;  17  Pac. 
197.  A  party  ought  not  to  be  allowed 
the  benefit  of  any  proceeding,  unless  he 
also  assumes  the  responsibility  for  it;  his 
appearance  for  one  purpose  is  a  good  ap- 
pearance in  the  action;  and  a  party"  should 
not  be  allowed  to  appear  only  for  the  pur- 
pose of  moving  to  set  aside  the  default,  for 
the  purpose  of  first  moving  the  dismissal 
of  the  suit,  and  if  that  motion  should  be 
unsuccessful,  to  answer  upon  the  merits. 
Douglass  v.  Pacific  Mail  S.  S.  Co.,  4  Cal. 
304.  The  appearance  of  a  party  for  the 
purpose  of  objecting  to  a  void  judgment 
does  not  cure  the  defect  in  such  judgment. 
Gray  v.  Hawes,  8  Cal.  562. 

Notice  of  appearance.  The  written  no- 
tice of  appearance  -provided  for  in  this 
section,  is  a  document  to  be  drawn  up 
especially  for  that  purpose,  the  service 
of  which  is  to  antedate  or  to  be  contem- 
poraneous with  the  service  of  all  other 
notices  and  papers.  Steinbach  v.  Leese,  27 
Cal.  295.  A  formal  notice  in  writing, 
given  by  the  defendants,  and  addressed 
to  the  clerk  of  the  court,  declaring  that 
"herewith  we  do  ent^er  our  appearance," 
which  appearance  is  coupled  with  a  eon- 
sent  that  judgment  may  be  entered  in 
favor  of  the  plaintiff  as  prayed  for  in  the 
complaint,  is  a  strict  compliance  with  this 
section.  Anglo-Californian  Bank  v.  Gris- 
wold,  153  Cal.  692;  96  Pac.  353. 

Time  for  filing.  Neither  this  section  nor 
§  5S1,  ante,  requires  an  ajipearance  to  be 
filed  within  any  specified  time.  Anglo- 
Califoruian  Bank  v.  Griswold,  153  Cal. 
692;  96  Pac.  353. 

Appearance  by  attorney.  An  attorney's 
appearance  is  presumably  lawful,  and  the 
burden  of  proof  rests  upoa  the  party  deny- 
ing such  authority  to  sustain  his  denial. 
People  V.  Western  Meat  Co.,  13  Cal.  App. 


.539;  110  Pac.  338;  Hayes  t.  Shattuck,  21 
Cal.  51.  In  the  absence  of  a  statutory  re- 
quirement that  the  authority  of  an  at- 
torney shall  be  evidenced  by  writing,  it  is 
always  presumed  that  an  attorney  appear- 
ing and  acting  for  a  party  to  a  cause  has 
authority  so  to  do;  and  where  an  appear- 
ance was  made  by  an  attorney,  without 
objection  from  the  parties  for  several  years 
thereafter,  they  will  not  be  heard  to  say 
that  such  ajipearance  was  unauthorized, 
upon  the  hearing  of  a  motion  to  dismiss 
for  failure  to  return  the  summons.  Pacific 
Paving  Co.  v.  Vizelich,  141  Cal.  4;  74  Pac. 
352.  An  appearance  by  an  attorney  is 
prima  facie  evidence  that  he  has  been  re- 
tained in  the  cause:  it  wouhl  be  a  danger 
ous  practice  to  afford  litigants  an  oppor- 
tunity of  availing  themselves  of  the  plea 
of  mistake  of  counsel,  in  order  to  escape 
from  the  judgments  of  courts.  Suydam  v. 
Pitcher,  4  Cal.  2S0.  Although  the"  author- 
ity of  an  attorney  appearing  in  an  action 
is  presumed,  yet  the  court  can  always  re- 
quire evidence  of  his  authorization,  and 
may  correct  mistakes  and  rectify  any  un- 
authorized appearance.  San  Francisco  Sav- 
ings Union  v.  Long,  123  Cal.  107;  55  Pac 
708.  An  appearance  entered  by  an  at- 
torney, whether  authorized  or  not,  is  a 
good  and  sufficient  appearance  to  bind  the 
party,  except  in  those  cases  where  traud 
has  been  used,  or  it  is  shown  that  the  at- 
torney is  unable  to  respond  in  damages. 
Suydam  v.  Pitcher,  4  Cal.  280.  The  unau- 
thorized appearance  of  an  attorney  in  an 
action  is  not  a  sufficient  ground  to  disturb 
the  judgment,  unless  fraud  or  collusion,  or 
the  insolvency  of  the  attorney,  can  be 
shown;  the  remedy  is  against  the  attorney. 
Sampson  v.  Ohleyer,  22  Cal.  200.  At  com- 
mon law,  and  by  the  express  letter  of  our 
statute,  an  appearance  by  an  attorney 
amounts  to  an  acknowle<lgment  or  waiver 
of  service.  Suydam  v.  Pitcher,  4  Cal.  280. 
Where  summons  has  not  been  served  upon 
any  one  of  several  defendants  in  an  action, 
an  appearance  by  an  attorney  at  the  re- 
quest of  one  of  the  defendants,  although 
f)urporting  to  be  in  behalf  of  all,  is  not 
lainding  upon  those  who  did  not  authorize 
the  appearance.  Merced  County  v.  Hicks, 
67  Cal.  108;  7  Pac.  179.  Tho"ugh  an  at- 
torney, other  than  the  attorney  of  record, 
may  appear  for  an  appellant  in  the  trial 
court,  yet  such  apjiearauce  does  not  author- 
ize him  subsequently  to  sign  a  notice  of 
motion  for  a  new  trial,  without  a  proper 
substitution  in  the  trial  court' as  attorney 
of  record  for  the  moving  party;  nor  does 
the  recognition  of  such  attorney  as  the  at- 
torney for  such  party  upon  a  former  appeal 
operate  to  waive  an  objection  to  his  want 
of  authority  to  sign  such  notice.  McMahon 
v.  Thomas,"  114  Cal.  588;  46  Pac.  732.  A 
party  may  appear  in  his  own  proper  person, 
or  by  attorney,  but  he  cannot  do  both. 
Boca  etc.  R.  R.  Co.  v.  Superior  Court,  150 


1014 


NOTICES,    AND   FILING  AND    SERVICE   OF   PAPERS. 


1174 


Cal.  153;  88  Pac.  718.  Where  a  defendant 
in  divorce  proceedings  was  charged  with 
contempt  of  court  in  refusing  to  obey  its 
order  respecting  alimony,  and  conceals  him- 
self to  avoid  the  service  of  process,  and 
the  court  orders  service  upon  his  attorney 
of  record,  who  appears  for  him  in  answer 
to  the  order,  and  submits  evidence  upon  the 
merits,  without  objection  to  the  want  of 
personal  service,  the  court  has  jurisdiction 
over  the  defendant,  and  it  was  not  neces- 
sary that  he  should  appear  personally,  nor 
could  he  be  required  to  be  present.  Foley 
V.  Foley,  120  Cal.  33;  65  Am.  St.  Rep.  147; 
52  Pac.  122.  A  party  to  an  action  must  be 
heard  in  court  through  his  attorney;  and 
the  court  has  not  power,  nor  authority  of 
law,  to  recognize  any  other  person  in  the 
conduct  or  disposition  of  the  case,  than  the 
attorney  of  record;  hence,  a  stipulation 
signed  by  a  party,  providing  for  certain 
steps  in  the  action,  will  be  disregarded. 
Toy  V.  Haskell,  128  Cal.  558;  79  Am.  St. 
Eep.  70;  61  Pac.  89. 

Waiver  of  summons  by  appearance. 
Voluntary  answers  or  demurrers  to  a  com- 
plaint are  equivalent  to  the  due  service  of 
summons,  and  are  a  waiver  of  the  right  to 
take  advantage  of  any  defect  in  the  issu- 
ance, service,  or  return  of  the  summons. 
Adams  v.  Hopkins,  141  Cal.  19;  77  Pac.  712. 
Waiver  of  service,  notice,  and  rights. 
Putting  in  an  answer  is  an  appearance, 
and  must  be  held  to  be  a  waiver  of  the 
mere  formality  of  issuing  a  summons,  the 
service  of  which,  in  such  case,  becomes 
unnecessary.  Hayes  v.  Shattuck,  21  Cal. 
51. 

Waiver  of  notice.  An  appearance  at  the 
hearing  of  a  motion,  and  resisting  such  mo- 
tion on  the  merits,  without  any  objection 
to  the  sufficiency  of  the  notice  of  the 
motion,  is  a  waiver  of  the  usual  notice  of 
the  motion.  Toy  v.  Haskell,  128  Cal.  558; 
79  Am.  St.  Eep.  70;  61  Pac.  89.  Notice  of 
motion  to  change  the  place  of  trial  is  not 
required  to  be  given  defendants  who  have 
not  appeared  in  the  action;  and,  if  such  de- 
fendants appear  and  take  part  on  the  hear- 
ing of  such  motion,  they  cannot  be  heard 
to  complain,  and  must  be  deemed  to  have 
waived*  previous  service  of  the  moving 
papers.  Wood  v.  Herman  Mining  Co.,  139 
Cal.  713;  73  Pac.  588.  The  notice  of  ap- 
peal corresponds  to  the  summons,  and,  like 
the  issuance  of  the  summons,  may  be 
waived;  and  a  voluntary  appearance  is 
equivalent  to  personal  service  of  the  no- 
tice; but  a  mere  waiver  of  the  service  is 
insufficient:  there  must  be  given,  in  addi- 
tion, a  notice  of  appearance,  either  in  per- 
son or  by  an  attorney.  Hibernia  Sav.  &  L, 
Soe.  V.  Lewis,  111  Cal.  519;  44  Pac.  175. 
The  requirement  of  §  285,  ante,  that  notice 
of  a  change  of  attorneys  shall  be  served 
upon  the  adverse  party,  is  for  the  benefit 
of  the  adverse  party,  and  may  be  waived 
by  him  or  his  attorney;  and  where  the  at- 
torney for  a  respondent  admitted,  in  writ- 


ing, the  service  of  a  copy  of  a  notice  of 
appeal,  without  objecting  that  it  was  signed 
by  an  attorney  other  than  the  attorney  of 
record  of  the  appellant,  the  notice  of  sub- 
stitution will  be  held  to  have  been  waived. 
Livermore  v.  Webb,  56  Cal.  489. 

Waiver  of  rights.  The  special  appear- 
ance of  a  defendant  to  move  to  strike  out 
parts  of  the  complaint,  contemporaneously 
with  the  filing  of  the  demurrer,  whether 
under  a  rule  of  court  or  otherwise,  is  not 
a  waiver  of  his  right  to  move  for  a  change 
of  venue.  Wood  v.  Herman  Mining  Co.,  139 
Cal.  713;  73  Pac.  588. 

Waiver  of  irresularities,  generally.  An 
appearance  by  the  defendant  for  the  pur- 
pose of  taking  advantage  of  irregular  sum- 
mons by  a  motion  to  dismiss,  "is  not  a 
waiver  of  his  rights  so  as  to  cure  the  de- 
fect: had  he  answered  without  any  objec- 
tion, he  could  not  afterwards  complain. 
Deidesheimer  v.  Brown,  8  Cal.  339.  An- 
swering after  the  denial  of  a  motion  to  set 
aside  the  service  of  summons,  is  not  a 
waiver  of  the  objection  upon  which  the 
motion  was  based.  Kent  v.  West,  50  Cal. 
185.  An  appearance,  and  a  motion  to  set 
aside  a  judgment,  upon  which  it  is  ad- 
mitted that  the  defendant  was  actually 
served  with  summons,  is  a  waiver  of  any 
irregularity  in  the  service.  Thompson  v. 
Alford,  135  Cal.  52;  66  Pac.  983.  A  writ- 
ten notice,  signed  by  attorneys,  that  "We 
have  been  retained  by,  and  appear  hereby 
for,  the  above-named  defendant  in  the 
above-entitled  action,"  is  a  sufficient  ap- 
pearance and  a  waiver  of  summons.  Dyer 
v.  North,  44  Cal.  157. 

Appearance  not  part  of  judgment  roll. 
It  is  not  required  that  an  appearance  be 
made  a  part  of  the  judgment  roll.  Western 
Lumber  etc.  Co.  v.  Merchants'  Amusement 
Co.,  13  Cal.  App.  4;  108  Pac.  891;  Brown  v. 
Caldwell,  13  Cal.  Apii.  29;  108  Pac.  874. 

Service  of  notice  of  appeal.  The  notice 
of  appeal  need  not  be  served  upon  a  de- 
fendant who  has  not  been  served  with  sum- 
mons nor  appeared  in  the  action.  Clarke  v. 
Mohr,  125  Cal.  540;  58  Pac.  176. 

Waiver  of  special  appearance  by  pleading  to 
merits.    See  note  4  Ann.  Cas.  290. 

Appearance  for  purpose  of  moving  to  set  aside 
attachment  for  lack  of  jurisdiction  as  general  or 
special  appearance.    Sne  note  IS  Ann.  Cas.  913. 

Taking  steps  to  contest  a  cause  on  the  merits 
after  a  special  appearance  as  waiver  of  objections 
to  jurisdiction  over  the  person.  See  note  16 
L.  K.  A.  (N.  S.)  177. 

CODE  COMMISSIONERS' NOTE.  1.  Appear- 
ance in  general.  If  the  appearance  of  parties 
is  shown  in  general  terms  by  the  record,  the 
appearance  will  be  confined  to  those  parties 
served  with  process.  Chester  v.  Miller,  13  Cal. 
558.  If  the  defendant  appears  for  the  sole  pur- 
pose of  taking  advantage  of  irregular  summons 
by  a  motion  to  dismiss,  it  does  not  amount  to 
a  waiver  of  his  rights  so  as  to  cure  the  defect; 
and  if  the  motion  so  made  to  dismiss  is  over- 
ruled, and  defendant  answers,  it  is  not  such 
an  appearance  as  waives  the  irregularity.  Dei- 
desheimer V.  Brown,  8  Cal.  339;  Gray  v.  Hawes, 
8  Cal.  569.  A  notice  given  by  an  attorney  to* 
plaintiff's  attorney  that  defendant  will  move,  be- 


1175 


SERVICE — ON   NON-RESIDENTS — ON  ATTORNEY. 


§1015 


fore  a  court  cominissioiuT,  for  the  disKoliition 
of  an  attachment,  is  not  an  ui)|><'araiice  in  the 
action.  Glidtli'n  v.  P.uUard,  2H  C'al.  649.  If 
the  court  order.s  plaintiff  to  a7)p('ar  and  show 
cause  why  a  judKnu-nt  in  his  favor  should  not 
be  set  aside,  and  it  is  not  shown  that  a  copy 
of  the  order  was  served  on  plaintiff  or  his 
attorney,  or  that  any  notice  was  (jiven  of  tho 
time  at  which  the  matter  was  to  he  heard,  tlie 
court  must  not  set  aside  the  judgment.  Vallejo 
V.  Green,  16  Cal.  160.  Where  a  case  was  trans- 
ferred, and  jurisdiction  given  to  a  maKistrate, 
by  consent  of  parties,  the  appi-arance  of  defend- 
ant, and  his  consent  fixing  the  time  of  trial, 
were  a  waiver  of  his  right  to  be  brought  in  by 
complaint  and  summons.  Cronise  v.  C'arghill,  4 
Cal.  120.  A  defendant  cannot  appear,  e.\cept  by 
answering,  demurring,  or  giving  the  plaintiff 
written  notice  that  he  appears;  and  the  service 
of  notice  of  appearance  must  antedate  or  bear 
even  date  with  the  service  of  all  other  papers. 
Steinback  v.  Leesc,  27  Cal.  297. 

2.  Appearance  by  an  attorney  at  law.  A 
party  to  a'n  action  may  appear  in  his  own  proper 
person,  or  by  attorney,  but  he  cannot  do  both. 
If  he  appears  by  attorney,  such  attorney  must 
control  and  manage  the  case.  Board  of  Commis- 
sioners V.  Younger,  29  Cal.  147;  87  Am.  Dec. 
164.  The  right  of  an  attorney  of  record  to 
manage  and  control  the  action  cannot  be  ques- 
tioned by  the  adverse  party.  Board  of  Commis- 
sioners V.  Younger,  29  Cal.  147;  87  Am.  Dec. 
164.      It    is    presumed    that    an    attorney    is    au- 


thorized to  appear  for  parties  for  whom  he 
enters  an  npjiearance  in  an  action,  unlets  some- 
thing to  the  cdntrary  ai>pear».  Haves  v.  Shat- 
tuck,  21  Cal.  51;  Willson  v.  Cleavel'und,  30  Cal. 
192;  Holmes  v.  Rogers,  1.3  Cul.  191.  And  such 
action  will  not  be  reviewed  on  the  ground  of 
mistake,  unless  the  mistake  be  without  any 
fault  or  ni'gligi-nce  of  either  tlie  party  or  bin 
attorney.  Holmes  v.  Rogers,  1  .J  Cal.  11)1.  And 
the  opposing  party  cannot  deny  the  authority  of 
the  attorney  so  appearing  to  prosi-cute  the  ac- 
tion. Turner  v.  Caruthers,  17  Cal.  431.  An 
appearance  entered  by  an  attorney,  whether  au- 
thorized or  not,  is  a  good  and  Buidicient  appear- 
ance to  bind  the  parly,  except  in  those  cases 
where  fraud  has  been  used,  or  it  is  shown  that 
the  attorney  is  unable  to  respond  in  daniuges. 
Suydam  v.  Pitcher,  4  Cal.  280.  Even  if  the 
appearance  of  the  attorney  was  wholly  unauthor- 
ized, yet  if  there  was  no  fraud  and  no  allegation 
of  insolvency,  the  party  would  not  have  a  right 
to  attack  the  judgment  on  that  ground.  Holmes 
V.  Rogers,  13  Cal.  191;  Carpentier  v.  Oakland, 
30  Cal.  440.  An  attorney  should  communicate 
to  his  client  whatever  information  he  ac(|uires 
in  relation  to  the  suit,  and  notice  to  him  is 
constructive  notice  to  his  client.  Bierce  v.  Red 
Bluff  Hotel  Co.,  31  Cal.  160.  For  power  and 
authority  of  attorney  to  bind  client,  etc.,  see 
§§  28;}.  284,  ante,  and  notes. 

3.  Appearance  of  party  by  mistake  of  attor- 
ney. Forbes  v.  Hyde,  31  Cal.  342;  see  §406, 
ante,  note  3. 


§  1015.  Service  on  non-residents.  When  a  plaintiff  or  a  defendant,  wlio 
has  appeared,  resides  out  of  the  state,  and  h;is  no  attorney  in  the  action  or 
proceeding,  the  service  may  be  made  on  the  clerk  for  him.  But  in  all  eases 
where  a  party  has  an  attorney  in  the  action  or  proceedins:,  the  service  of 
papers,  when  required,  must  be  upon  the  attorney  instead  of  the  party, 
except  service  of  subpcjenas,  of  writs,  and  other  process  issued  in  the  suit, 
and  of  papers  to  bring  him  into  contempt.  If  the  sole  attorney  for  a  party 
is  removed  or  suspended  from  practice,  then  the  party  has  no  attorney 
within  the  meaning  of  this  section.  If  his  sole  attorney  has  no  known  office 
in  this  state,  notices  and  papers  may  be  served  by  leaving  a  copy  thereof 
with  the  clerk  of  the  court,  unless  such  attorney  shall  have  tiled  in  the 
cause  an  address  of  a  place  at  which  notices  and  papers  may  be  served  on 
him,  in  which  event  they  may  be  served  at  such  place. 

Dection  with  this  section;  and  such  notice 
must  be  served  upon  the  attorney  of  the 
party,  and  not  upon  the  partv  hiuiself.  Es- 
tate of  Nelson,  128  Cal.  242;*  60  Pac.  772; 
Mohr  V.  Byine,  131  Cal.  2SS;  63  Pac.  341; 
Jones  V.  MeGarvey,  6  Cal.  Unrep.  277;  56 
Pac.  896.  Service  of  a  notice  to  dissolve 
an  attachment  must  be  made  upon  the  at- 
torney for  the  plaintiff.  Finch  v.  McVean, 
6  Cal.  App.  272;  91  Pac.  1019.  The  notice 
of  appeal  must  be  served  on  the  attorneys 
for  tiie  adverse  party,  who  have  appeared 
in  the  action.  Linforth  v.  White.  129  Cal. 
ISS;  61  Pac.  910. 

What  attorney  must  be  served.  Service 
of  the  notice  of  appeal  on  the  attorney  of 
record  for  the  adverse  party  is  sufficient. 
Matthews  v.  Superior  Court,  70  Cal.  527; 
11  Pac.  665.  Service  of  the  notice  of  ap- 
peal on  the  attorney  who  signed  the  origi- 
nal answer  of  the  defendant,  although 
another  attorney  signed  the  amended  an- 
swer, where  there  was  no  substitution  of 
attorneys,  is  good,  although  the  defendant 


Attorney. 

1.  Authority  of.     Ante,  §  283. 

2.  Duties    of.     Ante,  §  282. 

3.  Disbarred  when.    Ante,  §§  287-299. 
Service,  how  made.    Ante,  §  1011. 

Legislation  g  1015.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act,  §  524  (New  York 
Code,   §   415),   substituting  "must"  for  "shall." 

3.  Amendment  by  Stats.  1901,  p.  179;  un- 
constitutional.    See  note  ante.  §  5. 

3.  Amended  by  Stats.  1907,  p.  602,  (1)  in- 
serting "service"  before  "of  subpoenas,"  and  (2) 
adding  the  last  two  sentences;  the  code  commis- 
sioners saying,  "The  amendment  adds  the  last 
two  sentences  and  is  intended  to  supply  a  m  ule 
of  serving  notices  and  papers  when  the  attorney 
for  a  party  has  been  removed  or  suspended  or 
has  no  known  office  within  the  state." 

Service  must  be  on  attorney  when.     The 

provision  of  this  section  is  controlling,  and 
requires  the  service  of  the  notice  of  apjjcal 
to  be  made  upon  the  attorney  of  the  ad- 
verse party,  when  such  party  has  an  at- 
torney. Abrahms  v.  Stokes,  39  Cal.  150; 
and  see  Grant  v.  White,  6  Cal.  55.  The 
provision  of  §  940,  ante,  that  the  notice  of 
appeal  shall  be  served  upon  the  adverse 
party  or  his  attorney,  must  be  read  in  eon- 


1016,  1017         NOTICES,   AND   FILING  AND    SERVICE   OF   PAPERS. 


1176 


represented  by  such  attorney  was  dead  at 
the  time  of  service.  Lacoste  v.  Eastland, 
117  Cal.  673;  49  Pac.  1046. 

Effect  of  service  on  attorney.  Service 
of  a  cross-complaint  on  the  plaintiff's  at- 
torneys sets  the  time  running  within  which 
they  must  answer  or  demur  thereto.  Bitter 
V.  Braash,  11  Cal.  App.  258;  104  Pac.  592. 

Service  must  be  on  party  when.  After 
the  appearance  of  a  party  by  attorney, 
only  such  writs  and  process  as  affect  the 
party,  as  distinguished  from  the  litigation, 
are  required  to  be  served  upon  the  party 
personally.  Finch  v.  McVean,  6  Cal.  App. 
272;  91  Pac.  1019. 

Service  on  party  in  contempt  proceed- 
ings.    See  note  post,  §  1016. 

Effect  of  special  appearance.  The  special 
appearance  of  an  attorney,  for  the  purpose 

§  1016.  Preceding  provisions  not  to  apply  to  proceeding  to  bring  party 
into  contempt.  The  foregoing  provisions  of  this  chapter  do  not  apply  to 
the  service  of  a  summons  or  other  process,  or  of  any  paper  to  bring  a  party 
into  contempt. 

Legislation  §  1016.  Enacted  March  11,  1872; 
based  on  Practice  Act,  §  519.  See  ante,  Legis- 
lation §  1010. 

Construction  of  code, 
press    provision    in    the 


of  a  motion  before  demurrer  or  answer,  is 
not  such  an  appearance  as  to  entitle  him, 
or  the  parties  represented  by  him,  to  notice 
of  subsequent  motions  and  proceedings. 
"Wood  v.  Herman  Mining  Co.,  139  Cal.  713; 
73Pac.5SS. 

Waiver  of  notice.  There  may  be  a  waiver 
of  notice  of  decision;  but  no  rule  of  waiver 
applies  when  written  notice  is  served  by 
mail  or  otherwise;  in  such  eases  there  is 
nothing  to  waive.  Estate  of  Richards,  154 
Cal.  478;  98  Pac.  528.  An  application  to 
stay  execution,  made  on  the  same  day  on 
which  the  notice  of  decision  was  mailed 
by  defendant  to  plaintiff's  attorney,  cannot 
operate  as  a  waiver  of  service  of  the  notice. 
Estate  of  Eichards,  154  Cal.  478;  98  Pac. 
528. 


There  is  no  ex- 
code  as  to  the 
mode  of  service  of  the  order  to  show  cause 
upon  a  corporation  in  contempt  proceed- 
ings. Golden  Gate  Consol.  etc.  Mining  Co. 
v.  Superior  Court,  65  Cal.  187;  3  Pac.  628. 

Construction  of  section.  An  order  to 
show  cause  why  a  party  should  not  be 
punished  for  contempt  is  a  "paper  to  bring 
a  party  into  contempt,"  within  the  meaning 
of  this  section;  and,  ordinarily,  the  service 
of  such  paper,  like  that  of  summons,  must, 
in  the  case  of  a  corporation,  be  upon  the 
president  or  other  head  of  the  corpora- 
tion, secretary,  cashier,  or  managing  agent 
thereof.  Golden  Gate  Consol.  etc.  Mining 
Co.  V.  Superior  Court,  65  Cal.  187 ;  3  Pac.  628. 


Necessity  for  service.  Before  a  party 
can  be  brought  into  contempt  for  not 
complying  with  an  order,  such  order  must 
be  served  upon  him,  and  the  mere  delivery, 
to  a  person  in  another  state,  of  a  certified 
copy  of  the  order  is  not  such  a  service  as 
the  law  requires.  Johnson  v.  Superior  Court, 
63  Cal.  578;  Hennessy  v.  Nicol,  105  Cal. 
138;  38  Pac.  649. 

Service  on  attorney  when.  Where  the 
officers  of  a  corporation,  charged  with  con- 
tempt in  disobeying  a  legal  order,  willfully 
conceal  themselves  to  avoid  service  of  an 
order  to  show  cause  why  they  should  not  be 
adjudged  guilty  of  a  contempt,  the  court 
may  order  that  service  be  made  upon  its 
attorney  in  the  action.  Golden  Gate  Consol. 
etc.  Mining  Co.  v.  Superior  Court,  65  Cal. 
187;  3  Pac.  628. 


§  1017.  Service  by  telegraph.  Any  summons,  writ,  or  order  in  any  civil 
suit  or  proceeding,  and  all  other  papers  requiring  service,  may  be  trans- 
mitted by  telegraph  for  service  in  any  place,  and  the  telegraphic  copy  of 
such  writ,  or  order,  or  paper  so  transmitted,  may  be  served  or  executed  by 
the  officer  or  person  to  whom  it  is  sent  for  that  purpose,  and  returned  by 
him,  if  any  return  be  requisite,  in  the  same  manner,  and  with  the  same  force 
and  effect  in  all  respects,  as  the  original  thereof  might  be  if  delivered  to 
him,  and  the  officer  or  person  serving  or  executing  the  same  has  the  same 
authority,  and. is  subject  to  the  same  liabilities,  as  if  the  copy  were  the 
original.  The  original,  when  a  Avrit  or  order,  must  also  be  filed  in  the  court 
from  which  it  was  issued,  and  a  certified  copy  thereof  must  be  preserved 
in  the  telegraph-office  from  which  it  was  sent.  In  sending  it,  either  the 
original  or  the  certified  copy  may  be  used  by  the  operator  for  that  purpose. 
"Whenever  any  document  to  be  sent  by  telegraph  bears  a  seal,  either  private 
or  official,  it  is  not  necessary  for  the  operator,  in  sending  the  same,  to  tele- 


1177 


PLEADINGS — ACTION — ATTORNEYS '   FEES. 


§§  1018-1021 


graph  a  description  of  the  seal,  or  any  words  or  device  thereon,  but  the 
same  may  be  expressed  in  the  telegraphic  copy  by  the  letters  "L.  S.,"  or  by 
the  word  "seal." 


Legislation  S  1017.      Enacted  ^[ar^h  11,  1872; 
based  on  Stats.  1862,  p.  2912,  §  17. 

Validity  of  notice  sent  by  telegraph.    See  note 


61  L.  R.  A.  9.Tri. 

CODE  COMMISSIONEES*  NOTE.    Stats.  1862, 
p.  288, 


§  1018.     [No  section  with  this  number.] 

§  1019,  Service  of  pleadings  in  action  for  divorce  for  adultery.  When 
in  an  action  for  divorce  adultery  is  charged  against  either  party  and  the 
person  with  whom  such  adultery  is  alleged  to  have  been  committed  by  such 
party  is  named  in  any  of  the  pleadings,  a  copy  of  such  pleadings  must  be 
personally  served  on  such  named  person;  or,  in  case  such  named  person 
cannot  be  found,  such  notice  of  the  action  and  of  the  connection  of  such 
person  thercAvith  shall  be  given  as  shall  be  ordered  by  the  court ;  the  said 
person  so  served  shall  have  the  right  to  appear  and  plead  and  be  heard  in 
such  action  in  the  same  manner  and  to  the  same  extent  as  the  parties  to  the 
action. 

Legislation  §  1019.     Added    by    Stats.     1909, 
p.  974. 


CHAPTER  VI. 

COSTS. 


§  1021. 

§  1022. 
§  1023. 

§  1024. 

§  1025. 
§  1026. 


§  1027. 
§  1028. 
§  1029. 

S  1030. 


Compensation     of     attorneys.     Costs     to 

parties. 
When  allowed  of  course  to  plaintiff. 
Several  actions  brought  on  a  single  cause 

of  action  can   carry  costs  in  but  one. 
Defendant's    costs    must    be    allowed    of 

course,  in  certain    cases. 
Costs,  when  in  the  discretion  of  the  court. 
When    the    several    defendants    are    not 

united  in   interest,   costs  may   be   sev- 
ered. 
Costs  on  appeal. 
Referee's  fees. 
Continuance,    costs   may    be   imposed   as 

condition  of. 
Costs  when  a  tender  is  made  before  suit 

brought. 


§  1031.  Costs  in  action  by  or  against  an  admin- 
istrator, etc. 

§  1032.    Costs  in   a  review  other  than  by  appeal. 

§  1033.     Filing  of  and  affidavit  to  bill  of  costs. 

§  1034.  Costs  on  appeal,  how  claimed  and  recov- 
ered. 

§  1035.  Interest  and  costs  must  be  included  by 
the    clerk    in    the   judgment. 

§  1036.  When  plaintiff  is  a  non-resident  or  for- 
eign corporation,  defendant  may  re- 
quire security  for  costs. 

§  1037.  If  such  security  be  not  given,  the  action 
may  be  dismissed. 

§  1038.     Costs  when  state  is  a  party. 

§  1039.     Costs  when  county  is  a  party. 


of 


§  1021.  Compensation  of  attorneys.  Costs  to  parties.  The  measure  and 
mode  of  compensation  of  attorneys  and  counselors  at  law  is  left  to  the  agree- 
ment, express  or  implied,  of  the  parties;  but  parties  to  actions  or  proceed- 
ings are  entitled  to  costs  and  disbursements,  as  hereinafter  provided. 

Application  of  section.  The  sections  com- 
])risinor  this  chapter,  jiroviding  for  costs 
generally,  have  no  application  to  proceed- 
ings in  probate,  the  costs  of  which  are  regu- 
lated by  §  1720,  post,  which  must  prevail, 
as  being  a  later  special  enactment  in  rela- 
tion to  costs  in  such  proceedings.  Estate  of 
Olnistea.l,  120  ('al.  447;  .12  Pac.  S04. 

Attorneys'  fees  as  part  of  relief  granted. 
Counsel  fees  are  not  recoverable  by  the 
prevailing  party,  either  in  an  action  at  law 
or  in  a  suit  in  equity,  except  where  ex- 
pressly allowed  by  statute.  Estate  of  01m- 
stead,  120  Cal.  447;  52  Pac.  804;  and  see 
Miller  v.  Kehoe,  107  Cal.  340;  40  Pac.  4S.5; 
Bates  V.  Santa  Barbara  County.  90  Cal. 
543;  27  Pac.  438.  The  measure  and  amount 
of  compensation  of  attorneys  and  counsel- 
ors is  left  to  the  agreement  of  the  parties. 


Counsel  fees. 

1.  Action    for    contribution    by    co-owner 
Irrigation-ditch.    See  Civ.  Code,  §  843. 

2.  Action  on  fencing  bond.    Post,  §  1251. 

3.  Foreclosure.     Post,  §  1500.     See   post,   Ap- 
pendix, tit.  "Mortgages." 

4.  Probate  matter.    Post,  §  1718. 
Costs  and  counsel  fees. 

1.  Mechanics'  liens.    Post,  §  1195. 

2.  Partition.    Ante,  §§  796,   798,   801. 
Costs  i^  particular  actions.    See  specific  title. 

Legislation  8  1021.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act,  §  494  (New  York 
Code,  §  203),  as  amended  by  Stats.  1855,  p.  250. 
which  read:  "The  measure  and  mode  of  compen- 
sation of  attorneys  and  counselors  shall  be  left 
to  the  agreement,  express  or  implied,  of  the  par- 
ties; but  there  shall  be  allowed  to  the  prevailing 
party  in  any  action  in  the  supreme  court,  district 
court,  superior  court  of  the  city  of  San  Fran- 
cisco, and  county  courts,  his  costs  and  necessary 
disbursements  in  the  action,  or  special  proceed- 
ing in  the  nature  of  an   action." 

2.  Amendment  by  Stats.  1901,  p.  179;  un- 
constitutional.   See  note  ante.  §  5. 


1021 


COSTS. 


1178 


Engel  V.  Ehret,  21  Cal.  App.  112;  130  Pac. 
1197.  Counsel  fees  cannot  be  allowed  as 
a  part  of  the  judgment,  unless  expressly 
authorized  by  law.  Bates  v.  Santa  Barbara 
County,  90  Cal.  543;  27  Pac.  438.  Where 
property  was  pledged  to  secure  notes  which 
provided  for  reasonable  attorneys'  fees  in 
an  action  thereon,  the  pledgee,  in  a  subse- 
quent action  to  foreclose  the  pledge,  is  en- 
titled to  the  attorneys'  fees  allowed  in  a 
former  action  upon  the  notes,  as  against 
the  assignee  of  the  pledgor;  but  where 
there  was  no  further  express  stipulation  for 
attorneys'  fees  in  case  of  foreclosure  or 
sale  of  the  pledged  property,  no  further 
fees  can  be  recovered  in  the  action  to  fore- 
close the  lien  and  to  have  the  interest  of 
the  assignee  of  the  pledgor  declared  subject 
thereto.  Commercial  Savings  Bank  v.  Horn- 
berger,  140  Cal.  16;  73  Pac.  625.  Where  a 
judgment  has  been  rendered  in  an  action, 
without  a  provision  for  attorneys'  fees,  and 
the  judgment  has  become  final  by  affirmance 
upon  appeal,  the  trial  court  cannot,  upon 
motion  th3refor,  order  the  amount  ex- 
pended by  the  plaintiff  for  attorneys'  fees 
to  be  paid  to  him  out  of  the  money  for 
which  judgment  was  rendered,  and  which 
has  been  paid  in  to  court  in  satisfaction  of 
the  judgment.  Wickersham  v.  Crittenden, 
103  Cal.  582;  37  Pac.  513.  Counsel  fees  not 
paid  can  in  no  case  be  recovered  as  dam- 
ages; but  the  prevailing  party  in  an  action 
of  replevin  cannot  recover  counsel  fees, 
even  though  paid,  as  damages  for  the  tak- 
ing and  withholding  or  detention  of  the 
property,  or  for  its  conversion,  where  no 
other  expense  than  counsel  fees  appears  to 
have  been  incurred  in  the  pursuit  of  the 
property.  Hays  v.  Windsor,  130  Cal.  230; 
62  Pac.  395.  Attorneys'  fees  are  not  re- 
coverable in  an  action  for  conversion,  as 
damages  incurred  in  the  pursuit  of  the 
property,  under  §  3336  of  the  Civil  Code, 
nor  as  costs  iij  the  action.  Nicholls  v. 
Mapes,  1  Cal.  App.  349;  82  Pac.  265. 
Where  there  is  no  agreement  to  pay  counsel 
fees,  or  that  property  upon  which  a  lien  is 
sought  to  be  foreclosed  shall  be  security 
therefor,  the  court  cannot  allow  counsel 
fees  as  a  part  of  its  judgment.  Commercial 
Savings  Bank  v.  Hornberger,  140  Cal.  16; 
73  Pac.  625.  Courts  of  equity  will,  in 
proper  cases,  and  where  justice  requires  it, 
allow  attorneys'  fees  as  part  of  the  relief 
granted.  Estate  of  Olmstead,  120  Cal.  447; 
52  Pac.  804;  and  see  Alemany  v.  Wen- 
singer,  40  Cal.  288;  Wickershan/v.  Critten- 
den, 103  Cal.  582;  37  Pac.  513;  Miller  v. 
Kehoe,  107  Cal.  340;  40  Pac.  485.  Counsel 
fees  may  be  awarded,  in  some  suits  in 
equity,  in  the  discretion  of  the  court;  but 
where  the  parties  in  such  suits  are  hostile 
litigants,  and  each  employs  his  own  at- 
torney and  contests  the  main  issues  of  the 
ease,  the  refusal  of  the  court  to  allow  the 
successful  party  his  attorney's  fees  is  not 
an  abuse  of  discretion.   Salmina  v.  Juri,  96 


Cal.  418;  31  Pac.  365.  The  costs  of  litiga- 
tion, including  reasonable  fees  to  counsel, 
in  a  proceeding  for  the  sale  of  property 
held  in  trust,  are  a  proper  cliarge  on  the 
trust  fund,  and  should  be  allowed  by  the 
court.  Alemany  v.  Wensinger,  40  Cal.  288. 
Counsel  fees  cannot  be  allowed  the  losing 
party  in  an  action  by  the  assignee  of  an 
insolvent  to  recover  property  on  the  theory 
that  the  defendant  held  such  property  in 
trust,  where  the  defendant  contested  in 
good  faith  for  the  purpose  of  having  the 
ownership  of  the  property  judicially  de- 
termined. Sanger  v.  Eyan,  122  Cal.  52;  54 
Pac.  522.  The  provision  for  attorneys'  fees 
in  §  1195  post,  as  it  read  before  the  amend- 
ment of  1911,  was  unconstitutional.  Build- 
ers' Supply  Depot  v.  O'Connor,  150  Cal. 
265;  119  Am.  St.  Rep.  193;  11  Ann.  Cas. 
712;  17  L.  R.  A.  (N.  S.)  909;  88  Pac.  982; 
Mannix  v.  Tryon,  152  Cal.  31;  91  Pac.  983. 
The  statute  concerning  libel,  allowing  the 
same  counsel  fees  to  the  prevailing  party, 
plaintiff  or  defendant,  is  not  subject  to  any 
constitutional  objection.  Skroeki  v.  Stahl, 
14  Cal.  App.  1;  110  Pac.  957.  Counsel  fees 
cannot  be  allowed  an  executor  for  services 
rendered  in  probating  the  will,  except  as 
an  incident  to  some  judgment  or  order  of 
the  court;  the  probate  judge  is  clothed  with 
discretion  to  order  costs  to  be  paid  "by  any 
party  to  the  proceedings,  or  out  of  the  as- 
sets of  the  estate,  as  justice  may  require," 
and  this  discretion  cannot  be  exercised 
until  there  is  something  upon  which  it  may 
be  based;  hence,  until  a  will  has  been  ad- 
mitted to  or  denied  probate,  the  court  has 
no  power  to  appropriate  the  funds  of  the 
estate  to  aid  either  the  proponent  or  the 
contestant.  Henry  v.  Superior  Court,  93 
Cal.  569;  29  Pac.  230;  Estate  of  Olmstead, 
120  Cal.  447;  52  Pac.  804;  and  see  Estate 
of  Marrev,  65  Cal.  287;  3  Pac.  896;  Estate 
of  Parsons,  65  Cal.  240;  3  Pac.  817;  Es- 
tate of  Jessup,  80  Cal.  625;  22  Pac.  260; 
Henry  v.  Superior  Court,  93  Cal.  569;  29 
Pac.  230.  Attorneys'  fees  are  no  part  of 
the  costs  that  may  be  allowed  or  taxed 
against  a  party  on  the  contest  of  a  will. 
Estate  of  Olmstead,  120  Cal.  447;  52  Pac. 
804.  The  general  rule  is,  that  counsel  fees 
are  not  recoverable  as  costs,  by  the  prevail- 
ing party,  either  in  actions  at  law  or  in 
suits  in  equity;  in  equity,  the  ordinary 
costs  are  awarded  or  withheld,  in  the  dis- 
cretion of  the  court;  and  where  counsel  fees 
are  allowed,  it  generally  proceeds  on  the 
ground  of  the  contumacy  of  the  party,  or 
that  the  relief  granted  would  be  ineffectual 
without  such  allowance.  Williams  v.  Mac- 
Dougall,  39  Cal.  80.  Counsel  fees  are  not 
recoverable  as  costs;  and  a  special  prayer 
for  costs  does  not  include  counsel  fees;  nor 
does  a  stipulation  in  a  mortgage,  making 
couns3l  fees  a  charge  secured  by  the  mort- 
gage, make  such  charge  part  of  the  costs 
of  the  action.  Brooks  v.  Forrington,  117 
Cal.  219;  48  Pac.  1073. 


1179 


LIEN  OF  ATTORNEY — RIGHT  TO   COSTS. 


§1021 


Detormination  of  amount  of  attorneys' 
fees.  Where  there  is  foiidieting  e\iiioiico 
as  to  tlie  value  ol'  the  serviees  renileied  by 
the  attorney,  and  the  amount  allowed  by 
the  court  finds  support  in  the  evidence,  such 
amount  will  not  be  disturbed  on  appeal. 
Estate  of  Levinson,  108  Cal.  4.30;  41  Pac. 
483.  The  amount  of  an  attorney's  fee, 
where  the  allowance  of  such  is  proper,  must 
be  determined  by  the  court,  and  no  evi- 
dence of  the  value  of  the  services  rendered 
is  necessary.  Woodward  v.  Brown,  119  Cal. 
283;  63  Am.  St.  Kep.  108;  .51  Pac.  2.  The 
court,  without  hearing  any  testimony,  may 
determine  what  amount  will  be  reasonable 
as  counsel  fees,  in  cases  where  such  are  re- 
coverable. McNamara  v.  Oakland  Building 
etc.  Ass'n,  131  Cal.  336;  63  Pac.  670.  In 
partition  proceedings,  in  fixing  the  amount 
of  the  attorney's  fees  and  the  referee's 
fees,  the  trial  court  is  allowed  a  wide  dis- 
cretion, and  the  order  will  not  be  disturbed 
on  appeal,  unless  a  clear  abuse  of  discre- 
tion is  shown.  Treadwell  v.  Treadwell,  134 
Cal.  158;  66  Pac.  197. 

Retaining-fee  of  attorney.  An  attorney 
is  always  entitleil  to  his  retaining-fee  in 
advance,  unless  he  stipulates  to  the  con- 
trary; and  in  an  action  against  an  attorney 
for  negligence,  it  is  only  necessary  to  aver 
generally  that  he  was  retained;  but  if  it  is 
alleged  that  he  was  retained  in  considera- 
tion of  a  certain  sum,  it  must  also  be 
averred  that  he  was  paid  the  same.  Ca- 
villaud  v.  Yale,  3  Cal.  108;  58  Am.  Dee. 
388. 

Lien  of  attorney  for  his  fee.  An  at- 
torney has.  by  law,  no  lien  for  his  services, 
upon  a  judgment  recovered  in  favor  of  his 
client:  he  must  recover  therefor  in  the 
ordinary  mode,  by  an  action.  Gage  v. 
Atwater,  136  Cal.  170;  68  Pac.  581.  An  at- 
torney has  no  lien  upon  a  judgment  re- 
covered by  him  in  favor  of  his  client,  for 
a  quantum  meruit  compensation  for  his  ser- 
vices. Ex  parte  Kyle,  1  Cal.  331;  Mansfield 
V.  Dorland,  2  Cal.  507;  Russell  v.  Couway, 
11  Cal.  93.  Where  a  mortgage  provides  for 
the  payment  of  a  promissory  note,  but  does 
not  purport  to  secure  the  payment  of  at- 
torneys' fees,  a  stipulation  in  the  mortgage 
for  counsel  fees  does  not  authorize  the 
making  of  such  fees  a  lien  upon  the  prop- 
erty, nor  the  inclusion  of  them  in  the  de- 
cree of  sal3.  Irvine  v.  Perry,  119  Cal.  352; 
51  Pac.  544. 

For  his  costs.  An  attorney  has  no  lien 
for  costs  in  an  action,  by  which  he  can  dis- 
turb the  satisfaction  of  the  judgment  en- 
tered bv  his  client.  Hogan  v.  Black,  66  Cal. 
41;  4  Pac.  9-13. 

Action  by  attorney  for  his  fee.  An  at- 
torney ma}'  have  an  action  to  recover  the 
amount  agreed  upon,  or  the  value  of  his 
services,  where  he  is  employed  by  a  person 
capable  of  making  a  contract  which  shall 
bind  him  or  those  whom  he  may  renresent; 
and  the  fact  of  the  existence  of  the  con- 


tract, and  the  amount  agreed  upon  or  value, 
may  be  submitted  to  a  jury.  Cole  v. 
Superior  Court,  6:!  ('al.  SG;  •<!(  .\m.  Rep.  78. 

Right  to  and  liability  for  costs.  Where  a 
transferee,  pending  a  .suit,  permits  it  to  be 
prosecuted  in  the  name  of  the  original  par- 
lies, there  is  no  rule  of  law  that  prevents 
them  from  recovering  the  costs  of  suit. 
Crittenden  v.  San  Francisco  Savings  Union, 
157  Cal.  201;  107  Pac.  103.  Where  four 
parties,  having  each  brought  an  action 
against  certain  defendants,  made  separate 
and  distinct  agreements  to  submit  the  mat- 
ters in  controversy  to  arbitration,  and  at 
the  hearing  a  common  trial  of  the  several 
causes  was  agreed  upon,  and  damages  were 
awarded  to  the  plaintiffs  severally  for  dif- 
ferent amounts,  and  an  award  was  made 
to  them  jointly  for  the  amount  of  the  costs, 
and  the  defendants  paid  the  damages  as 
awarded,  but  refused  to  pay  the  costs,  the 
defendants  are  not  estopped  from  disputing 
the  validity  of  the  award  as  to  costs 
jointly  awarded  against  them,  either  by 
consenting  to  a  common  trial  or  by  paying 
the  separate  sums  awarded  as  damages. 
Springer  v.  Schultz,  64  Cal.  454;  2  Pac.  32. 
Where  a  mortgagee  is  made  a  defendant 
with  the  owners  of  the  fee,  and  unites  with 
them  in  contesting  an  action,  he  is,  with 
them,  liable  for  the  costs,  should  they  fail 
in  their  defense.  Pinheiro  v.  Bettencourt, 
17  Cal.  App.  Ill;  ll<8  Pac.  941.  A  married 
woman  is  liable  for  costs  in  an  action 
brought  by  her  as  sole  plaintiff,  concerning 
her  separate  property.  Leonard  v.  Town- 
send,  26  Cal.  435.  The  acceptance  of  a 
continuance,  granted  upon  condition  that 
the  party  asking  it  pay  designated  items 
of  costs,  is  tantamount  to  an  agreement  to 
pay  the  sums  imposed.  Bashore  v.  Superior 
Court,  152  Cal.  3;  91  Pac.  SOI. 

Statutory  right  to  costs.  The  right  to 
recover  costs  is  purely  statutory,  and  their 
recovery  is  governed  by  the'  statute  in 
force  at  the  time  the  right  to  have  them 
taxed  occurs.  Begbie  v.  Begbie,  128  Cal. 
154;  49  L.  R.  A.  141;  60  Pac.  667;  Meyer  v. 
Perkins,  20  Cal.  App.  661;  130  Pac.  206. 
The  right  of  the  prevailing  party  to  costs 
is  statutory;  and  all  the  costs  in  "the  action 
may  be  recovered  by  the  plaintiff  if  he  re- 
covers judgment  for  more  than  three  hun- 
dred dollars  upon  any  one  cause  of  action, 
and  the  costs  of  a  second  trial  are  recover- 
able by  the  plaintiff  in  such  case  notwith- 
standing the  withdrawal  upon  appeal  of  the 
cause  of  action  then  tried.  Fox  v.  Hale  etc. 
Mining  Co.,  122  Cal.  219;  54  Pac.  731.  In 
the  absence  of  a  statute  allowing  costs, 
none  can  be  recovered  by  either  party. 
Williams  v.  Atchison  etc.  Rv.  Co.,  156  Cal. 
140;  134  Am.  St.  Rep.  117;  19  Ann.  Cas. 
1260;  103  Pac.  885;  Mever  v.  Perkins.  20 
Cal.  App.  661;  130  Pac.  206;  Dulev  v.  Pea- 
cock, 17  Cal.  App.  418;  119  Pac.  1086; 
Murphy  v.  Casey,  13  Cal.  App.  781;  110 
Pac.   956;   Linforth   v.   San   Francisco   Gas 


§1021 


COSTS. 


1180 


etc.  Co.,  9  Cal.  App.  434;  99  Pac.  716.     The 

"percentage  act"  of  February  9,  1S66,  allow- 
ing the  prevailing  party  five  per  cent  on 
the  amount  recovered  in  certain  actions 
tried  in  San  Francisco,  was  not  repealed  on 
the  adoption  of  the  codes  (Whitaker  v. 
Haynes,  49  Cal.  596);  and  was  constitu- 
tional. Corwin  v.  Ward,  35  Cal.  195;  95 
Am.  Dec.  93.  The  party  ultimately  pre- 
vailing in  the  action  is  entitled  to  recover 
from  the  losing  party  the  costs  of  previous 
trials,  where  legitimate  and  properly  taxed. 
Senior  v.  Anderson,  130  Cal.  290;  62  Pac. 
563.  The  statute  does  not  specify  what 
shall  constitute  costs.  Bond  v.  United  Rail- 
roads, 20  Cal.  App.  124;  128  Pac.  786. 

Costs  as  incident  to  judginent.  Costs  are 
an  incident  to  the  judgment,  to  be  taxed 
by  the  clerk  or  the  court,  and  cannot  be 
given  by  the  jury  by  way  of  damages. 
Shay  V.  Tuolumne  Water  Co.,  6  Cal.  286. 
Costs  are  but  a  part  of  and  incident  to  the 
judgment;  and  if  the  court,  by  abatement 
of  the  action,  loses  power  to  render  any 
judgment  in  the  case-,  it  is  powerless  to 
render  any  judgment  for  the  costs  incurred 
therein;  and  upon  the  abatement  of  an  ac- 
tion or  appeal  by  the  death  of  a  party, 
there  can  be  no  judgment  for  costs  in  favor 
of  the  survivor.  Begbie  v.  Begbie,  128  Cal. 
154;  49  L.  R.  A.  141;  60  Pac.  667. 

Interest  on  costs.  The  costs  incurred  by 
a  plaintiff  upon  a  former  trial,  which  form 
part  of  the  final  decree,  do  not  carry  inter- 
est. Huellmantel  v.  Huellmantel,  124  Cal. 
583;  57  Pac.  582. 

Stay  of  execution,  and  retaxing  costs. 
W^here  items  are  included  in  the  cost-bill, 
which  are  not  properly  taxable,  it  affords  no 
just  ground  for  refusing  to  issue  an  execu- 
tion or  to  recall  one:  the  remedy  is  by 
motion  to  retax.  Meeker  v.  Harris,  23  Cal. 
285.  Where  a  judgment  for  costs  has  been 
executed  by  the  sheriff,  the  court  is  author- 
ized to  stay  the  execution  in  the  hands  of 
the  sheriff,  until  an  application  can  be 
made  to  the  court  to  retax  and  adjust  the 
costs.  Ex  parte  Burrill,  24  Cal.  350.  Where 
the  court,  in  the  exercise  of  its  discretion, 
divided  the  costs  so  as  to  award  to  each 
party  the  costs  incurred  in  the  trial  of 
issues  found  in  favor  of  each,  if  one  of  the 
issues  was  erroneously  found  in  favor  of 
the  defendant,  the  cost  of  the  trial  of  that 
issue  should  be  relaxed  in  favor  of  the 
plaintiff.  Bathgate  v.  Irvine,  126  Cal.  135; 
77  Am.  St.  Rep.  158;  58  Pae.  442. 

Waiver  of  costs.  Where  the  fees  and  ex- 
penses of  a  sheriff  for  the  keeping  of  prop- 
erty held  under  a  writ  of  attachment  are 
not  claimed  by  the  plaintiff  in  the  memo- 
randum of  costs,  and  are  not  included  in  the 
judgment,  the  failure  so  to  claim  and  in- 
clude them  in  the  manner  required  by  the 
statute  is  a  waiver  of  such  costs,  and  pre- 
cludes a  recovery  thereof  from  the  defend- 
ant. Hotchkiss  V.  Smith,  108  Cal.  285:  41 
Pac.  304. 


Costs  in  case  of  appeal.  Where  the  judg- 
ment in  the  first  trial  is  reversed  upon  ap- 
peal, and  a  new  trial  had,  the  costs  of  the 
first  trial  are  part  of  the  final  bill  of  costs. 
Visher  v.  Webster,  13  Cal.  58;  Stoddard  v. 
Treadwell,  29  Cal.  281.  An  applicant  for 
a  writ  of  review  from  the  appellate  court 
to  the  superior  court  and  a  judge  thereof, 
to  compel  the  certification  of  a  transcript 
of  the  record,  must  pay  to  the  clerk  of  the 
latter  court  the  fees  fixed  by  law  '.'or  mak- 
ing and  certifying  the  return  of  the  writ; 
and  the  clerk  cannot  be  required  to  per- 
form that  service  without  prepayment  of 
the  fees  therefor.  I.  X.  L.  Lime  Co.  v. 
Superior  Court,  143  Cal.  170;  76  Pac.  973. 

Appeal  as  to  costs.  An  error  of  the 
court,  in  refusing  to  allow  a  party  costs, 
cannot  be  revicAved  on  an  appeal  from  an 
order  denying  a  new  trial:  such  error  can 
be  reviewed  or  corrected  only  on  appeal 
from  the  judgment.  Stevenson  v.  Smith, 
28  Cal.  102;  87  Am.  Dec.  107.  A  question 
as  to  costs,  not  made  in  the  trial  court, 
nor  embraced  in  the  grounds  of  the  ap- 
peal, will  not  be  considered  by  the  appel- 
late court.  Stoddard  v.  Treadwell,  29  Cal. 
281.  A  mistake  in  the  computation  of 
interest,  or  taxation  of  costs,  cannot  be 
attacked  for  the  first  time  on  appeal:  the 
party  complaining  must  first  move  in  the 
trial  court  to  correct  the  computation,  or 
to  retax  the  costs,  and  thus  obtain,  dis- 
tinctly, the  judgment  of  that  court  upon 
the  disputed  items,  before  resort  can  be 
had  to  a  higher  tribunal.  Guy  v.  Frank- 
lin, 5  Cal.  416.  The  allowance  of  costs  in 
a  suit  in  equity  is  within  the  discretion 
of  the  court,  and,  without  a  statement  or 
bill  of  exceptions,  that  discretion  will  not 
be  reviewed  upon  appeal.  Faulkner  v. 
Hendy,  103  Cal.  15;  36  Pac.  1021.  Though 
costs  were  ascertained  and  adjudged  after 
the  entry  of  the  judgment  by  the  clerk, 
yet  the  law  considers  such  action  of  the 
court  as  having  preceded  the  final  judg- 
ment, and  such  action  may  therefore  be 
reviewed  on  appeal  from  the  judgment. 
Lasky  v.  Davis,  33  Cal.  677.  A  judgment 
for  costs  only,  for  or  against  any  one  of 
the  parties,  plaintiff  or  defendant,  is  not 
a  final  judgment,  and  an  appeal  from  such 
a  judgment  must  be  dismissed  upon  mo- 
tion. Nolan  V.  Smith,  137  Cal.  360;  70 
Pac.  166.  Where  a  judgment  allows  costs, 
but  does  not  fix  the  amount  thereof,  and 
this  was  done  afterwards,  upon  a  motion 
to  retax  costs,  and  after  the  court  had 
stricken  out  the  cost-bill,  the  subsequent 
orders  are  proceedings  relating  to  the  judg- 
ment, and  become  a  part  of  it,  and  the 
error  in  allowing  costs  may  be  corrected 
upon  appeal  from  the  judgment,  by  strik- 
ing out  the  costs  allowed.  Quitzow  v.  Per- 
rin,  120  Cal.  255;  52  Pac.  632.  An  appel- 
lant cannot  raise  the  question  as  to  the 
proper  adjustment  of  costs,  where  the  ap- 
.  peal  is  upon  the  judgment  roll  alone.    Ma- 


1181 


COSTS  ON  APPEAL — TEST  OF  JURISDICTION. 


§1021 


dera  Countv  v.  Eavmond  Granite  Co.,  139 
Cal.  128;  72  Pae.  915.  An  order  striking 
out  a  cost-bill,  made  after  the  rendition 
and  entry  of  final  judgment,  is  appealable, 
and  can  be  reviewed  without  an  appeal 
from  the  judgment.  Yorba  v.  Dobner,  90 
Cal.  337;  27  Pae.  185.  A  special  onler, 
made  after  entry  of  judgment,  reducing 
such  judgment  by  striking  out  the  costs, 
is  appealable.  Elledge  v.  Superior  Court, 
131  Cal.  279;  63  Pae.  360.  A  special  order 
after  judgment,  refusing  to  strike  out  a 
cost-bill  in  the  superior  court,  in  a  case 
appealed  from  a  justice's  court,  is  not  ap- 
pealable to  the  supreme  court,  although 
the  cost-bill  amounts  to  over  three  hun- 
dred dollars.  Henigan  v.  Ervin,  110  Cal. 
37;  42  Pae.  457.  An  order  denying  de- 
fendant's motion  to  strike  out  plaintiff's 
cost-bill  is  not  an  order  directing  the  pay- 
ment of  money,  within  the  purview  of 
§'942,  ante;  and  a  bond  executed  in  double 
the  amount  of  the  cost-bill,  upon  appeal 
from  such  order  by  the  defendant,  has  no 
statutory  authority,  and  cannot  operate 
to  stay  execution;  and  the  plaintiff  is  not 
entitled  to  judgment  against  the  sureties 
thereon,  upon  motion,  that  being  a  sum- 
mary remedy  created  by  the  statute,  and 
applicable  only  to  undertakings  allowed 
by  it.  Eeay  v.  Butler,  118  Cal.  113;  50 
Pae.  375.  The  memorandum  of  costs  forms 
no  part  of  the  judgment  roll;  and  the 
court,  having  only  the  judgment  roll  be- 
fore it,  cannot  review  an  order  to  retax 
costs.   Kelly  v.  McKibben,  54  Cal.  192. 

Amount  as  test  of  appellate  jurisdiction. 
Where  an  action  is  dismissed  upon  the 
motion  of  the  plaintiff,  and  judgment  is 
entered  in  favor  of  the  defendant  for  costs, 
the  plaintiff  can  appeal  only  as  to  the  por- 
tion of  the  judgment  awarding  costs;  and 
where  the  amount  of  the  costs  is  less  than 
three  hundred  dollars,  the  supreme  court 
has  no  jurisdiction.  Oullahan  v.  Morris- 
sey,  73  Cal.  297;  14  Pae.  864.  In  all 
cases,  legal  or  equitable,  where  the  appel- 
late court  has  jurisdiction  of  the  matter 
brought  in  controversy  in  the  lower  court, 
the  appealability  of  an  order  made  before 
or  after  final  judgment  is  not  controlled 
or  affected  by  the  amount  involved;  hence, 
where  the  trial  court  has  jurisdiction  of 
an  action  to  quiet  title,  the  supreme  court 
has  jurisdiction  of  an  appeal  from  an  order 
striking  out  a  cost-bill  in  an  amount  less 
than  three  hundred  dollars.  Sierra  Union 
Water  etc.  Co.  v.  Wolff,  144  Cal.  430;  77 
Pae.  103S;  and  see  Harron  v.  Ilarron,  123 
Cal.  508;  56  Pae.  334;  128  Cal.  303;  60 
Pae.  932;  Southern  California  Ry.  Co.  v. 
Superior  Court,  127  Cal.  417;  59  Pae.  789; 
Elledge  v.  Superior  Court,  131  Cal.  279; 
63  Pae.  360. 

Allowance  of  costs  in  equity  and  at  law.  See 
note  16  Am.  Dec.  405. 

What  recoverable  as  costs.  See  note  88  Am. 
Dee.  181. 

Allowance  of  costs  in  mandamus.  See  note  30 
Am.  St.  Rep.  561. 


Constitutionality  of  statutes  requiring  prepay- 
ment or  taxation  as  costs  of  jury  fees.  See  notua 
5   Ami.   fan.   !t:U)  ;    12    Ann.   Cns.    37H. 

Taxation  as  costs  of  feef.  mileage,  etc.,  of  wit- 
ness subpcenaed,  but  not  callud  on  to  tebtlfy.  See 
notf  6  .\nn.  CaR.    10  17. 

Expense  of  procuiing  bond  in  action  ai  item  of 
taxable  costs.  Sic  notes  19  Ann.  Cas.  1261;  48 
L.  H.  A.  r,9\. 

Constitutionality  of  statutes  allowing  attorney's 
fees  to  successful  party.  See  note  79  .\m.  St. 
Kep.   178. 

Validity  of  statute  allowing  taxation  as  costs 
of  attorney's  fees  in  action  for  personal  service. 
See  note    17   Ann.  Cas.  2H'i. 

CODE  COMMISSIONERS'  NOTE.  An  attor- 
ney has  a  lien  for  his  costs  upon  a  judtment 
recovered  by  him,  wiiich  may  Vje  enforced  upon 
giving  notice  to  the  adverse  party  not  to  pay 
the  judgment  until  the  amount  of  <'ost»  be  paid; 
and  in  some  cases  where  there  has  been  collu- 
sion between  the  parties  to  cheat  the  attorney, 
the  court  has  required  the  client  to  satisfy  them. 
But  this  practice  is  confined  to  some  certain 
and  fixed  amount  allowed  to  an  attorney  by  stat- 
ute, and  is  not  e.xtended  to  cases  where  an 
attorney  or  counselor  claims  a  quantum  meruit 
compensation  for  his  services.  In  this  state 
we  have  no  statute  giving  costs  to  attorneys, 
and  they  must  consequently  recover  for  their 
services    in   the    ordinary    mode.     Ex    parte    Kyle, 

1  Cal.  331;  see  also  Mansfield  v.  Dorland,  2 
Cal.  507;  Russell  v.  Conway,  11  Cal.  103.  Plain- 
tiffs, before  the  action  was  commenced,  agreed 
to  give  their  attorneys,  as  compensation,  one 
third  of  the  judgment,  with  costs.  After  judg- 
ment was  obtained  and  execution  issued,  the 
plaintiffs  compromised  with  defendant  for  less 
than  the  amount  of  the  judgment,  and  entered 
satisfaction  upon  the  record.  And  it  was  de- 
cided that  the  attorneys  had  no  lien  upon  the 
judgment,  and  could  not  disturb  the  satisfaction 
entered  by  the  plaintiffs.     Mansfield   v.    Dorland, 

2  (.al.  507.  An  attorney  is  entitled  to  his  re- 
taining fee  in  advance,  unless  he  stipulates  to 
the  contrary.  Cavillaud  v.  Yale,  3  Cal.  103; 
58  Am.  Dec.  388.  In  a  suit  for  compensation 
as  attorney  in  a  certain  proceeding,  it  i.s  not 
competent  to  prove  the  value  of  the  attorney's 
services  in  another  proceeding.  A  person  who 
is  not  a  lawyer  cannot  be  a  competent  witness 
to  prove  the  value  of  legal  services.  Hart  v. 
Vidal,  6  Cal.  56.  As  to  how  receivers,  author- 
ized to  employ  counsel  (and  to  stipulate  that 
tlie  compensation  of  such  counsel  shall  be  left 
to  the  court),  should  provide  for  the  payment 
of  such  compensation  to  counsel,  see  Adams  v. 
Woods,  8  Cal.  306.  In  suits  by  attorneys  to 
recover  compensation  for  legal  services,  unskill- 
ful or  negligent  conduct,  or  the  skill  employed 
in  the  case,  is  an  important  inquiry.  A  suit 
may  be  won,  and  yet  tlie  attorney  be  guilty  of 
great  negligence.  Bridges  v.  Paige,  13  Cal.  642. 
The  allowance  of  costs  rests  in  the  discretion  of 
the  court  of  original  jurisdiction.  And  where, 
on  sustaining  a  demurrer  to  a  complaint,  on  the 
ground  that  the  complaint  did  not  state  facts 
suflicient  to  constitute  a  cause  of  action,  the 
court  gave  judgment  for  the  defendant  for  full 
costs,  including  a  jury  fee.  ft  was  not  such 
an  abuse  of  discretion  as  to  warrant  interference 
by  the  supreme  court.  Harvey  v.  Chilton.  11 
Cal.  119.  A  mortgage  contained  a  stipulation 
for  all  the  costs  of  foreclosure,  including  coun- 
sel fees,  not  exceedine  five  per  cent  of  the 
amount  due.  The  limitation  of  five  per  cent 
was  held  to  apply  to  counsel  fees  alone,  and 
the  complainant  could  recover  the  whole  of  his 
costs  by  operation  of  the  statute,  and  inde- 
pendently of  any  stipulation.  Gronfier  v.  Min- 
turn,  5  Cal.  492.  A  person  having  an  interest 
in  mortgaged  premises,  subsequent  to  the  mort- 
gage, is  a  proper  party  to  the  foreclosure  suit, 
but  cannot  be  made  liable  for  the  costs  of  fore- 
closure beyond  those  occasioned  by  his  own 
separate  defense.  Luninp  v.  Brady,  10  Cal.  267. 
If  the  plaintiff  in  ejectment  recovers  judgment, 
he  is  entitled  to  the  costs,  although  his  recovery 
is  for  only  a  portion  of  the  demanded  premi.ses. 
Havens  v.  Dale,  30  Cal.  547.      If  a  judgment  for 


1022 


COSTS. 


1182 


plaintiff  is  not  given  by  the  appellate  court,  and 
a  new  trial  is  awarded,  if  plaintiff  recovers 
judgment  on  the  second  trial,  he  is  entitled  to 
his  costs  in  the  court  below,  incurred  on  the 
first  trial.  Stoddard  v.  Treadwell,  29  Cal.  281. 
If  the  entry  of  several  judgments  increases  the 
costs,  it  might  be  ground  for  relaxing  or  appor- 
tioning them.  Lick  v.  Stockdale,  18  Cal.  219. 
"Where  a  judgment  is  against  two,  but  only 
one  appeals,  and  the  appeal  is  dismissed  with 
twenty  per  cent  damages,  the  damages  with  the 
costs  do  not  become  part  of  the  original  judg- 
ment, and  the  redemptioner  is  not  bound  to 
pay  them  when  he  redeems  from  a  sale  under 
the  judgment.  The  clerk  below  can  issue  execu- 
tion for  these  damages  and  costs.  IMcMillan  v. 
Vischer,  14  Cal.  241.  Where  costs  are  imposed 
as  condition  for  reopening  a  case  after  the  ad- 
journment of  the  term,  the  acceptance  of  the 
costs  of  the  opposite  party  is  not  a  consent  to 
have  the  cause  reinstated.  Carpentier  v.  Hart, 
5  Cal.  406.  Costs,  by  way  of  indemnity,  should 
not  be  taxed  in  case  of  a  nonsuit.  Rice  v. 
Leonard,  5  Cal.  61.  A  mandamus  is  not  the 
proper  remedy  when  an  inferior  court  refuses 
to  enter  a  judgment  for  costs.  The  party  should 
appeal,  or  sue  for  his  costs.  Peralta  v.  Adams, 
2  Cal.  595.  An  error  in  computing  interest 
or  taxing   costs   cannot  be  attacked  for  the  first 


time  in  an  appellate  court.  The  party  com- 
plaining must  move  in  a  court  below  to  relax 
the  costs,  etc.,  and  thus  obtain  distinctly  the 
judgment  of  the  court  of  original  jurisdiction 
upon  the  disputed  items,  before  resort  can  be 
had  to  a  higher  tribunal.  Guy  v.  Franklin,  5 
Cal.  417.  The  judgment  of  the  supreme  court, 
on  appeal,  and  costs  consequent  thereon,  is  final, 
and  the  court  below  cannot  prevent  immediate 
execution  of  the  judgment  of  this  court  so  re- 
mitted. The  clerk  of  the  supreme  court,  in 
entering  up  the  judgment,  adds  the  words  "with 
costs,"  and  annexes  to  the  remittitur  a  copy 
of  the  bill  of  costs  filed;  these  words  are  a 
sufficient  awarding  of  costs  for  the  clerk  below 
to  issue  an  execution.  Marysville  v.  Buchannan, 
3  Cal.  212.  In  an  action  to  compel  execution 
of  conveyance,  a  demand  before  the  commence- 
ment of  the  action  is  only  material  as  atfecting 
costs.  Unless  plaintiff  demanded  the  execution 
of  the  deed,  he  would  not  be  entitled  to  costs. 
Jones  V.  Petaluma,  36  Cal.  230.  Before  grant- 
ing an  order  to  release  a  party  from  a  judgment 
against  him,  the  court  should,  as  a  condition 
precedent,  require  him  to  pay  all  costs  accruing 
to  the  adverse  party  up  to  the  time  of  service 
and  filing  of  notice  of  motion  therefor.  Leet 
V.  Grants,  36  Cal.  288. 


§  1022,  When  allowed  of  course  to  plaintiff.  Costs  are  allowed  of  course 
to  the  plaintiff,  upon   a  judgment  in  his  favor,  in  the  following  eases: 

1.  In  an  action  for  the  recovery  of  real  property ; 

2.  In  an  action  to  recover  the  possession  of  personal  property,  where  the 
value  of  the  property  amounts  to  three  hundred  dollars  or  over ;  such  value 
shall  be  determined  by  the  jury,  court,  or  referee  by  whom  the  action  is 
tried ; 

3.  In  an  action  for  the  recovery  of  money  or  damages,  when  plaintiff 
recovers  three  hundred  dollars  or  over; 

4.  In  a  special  proceeding ; 

5.  In  an  action  which  involves  the  title  or  possession  of  real  estate,  or  the 
legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine. 

real  estate.  Coffman  v.  Bushard,  164  Cal. 
663;  130  Pac.  42o.  An  action  to  quiet 
title  to  a  right  of  way  being  an  action 
involving  the  title  to  or  the  possession  of 
real  estate,  the  prevailing  party  therein 
is  entitled  to  costs:  a  direction  that  each 
party  pav  his  own  costs  is  erroneous. 
Schmidt  V.  Klotz,  130  Cal.  223;  62  Pac. 
470.  An  action  involving  the  protection 
of  an  easement  over  defendant's  land,  in 
which  issue  is  joined  upon  the  easement, 
is  within  the  fifth  subdivision  of  this  sec- 
tion, and  the  plaintiff,  though  he  recovers 
only  a  portion  of  the  title  or  possession 
involved,  is  to  be  allowed  his  costs  as  of 
course;  the  form  of  the  action,  and  the 
fact  that  equitable  relief  is  sought,  are 
immaterial.  Hoyt  v.  Hart,  149  Cal.  722; 
87  Pac.  569.  The  allowance  of  costs  does 
not  depend  upon  the  form  or  nature  of  the 
action,  but  upon  the  fact  whether  the 
case  comes  within  the  terms  of  the  statute 
relating  to  costs;  therefore,  in  an  action 
to  quiet  title,  where  the  plaintiff  recovers 
as  to  any  jiart  of  the  property  involved, 
although  judgment  is  in  favor  of  the  de- 
fendant tor  part,  the  plaintiff  is  entitled 
to  recover  his  costs  as  of  course.  Sierra 
Union    Water   etc.   Co.   v.   Wolff,   144   Ca>. 


Costs. 

1.  Discretionary  ■when.     Post,  §§  1025,  1027. 

2.  In    actio;!    for    usurpation    of     franchise. 
See  ante,  §§  809,  810. 

3.  In  partition.    See  ante,  §§  768,   769,   771, 
796,  799. 

Subd.  2.  Personal  property.  Value.  Post, 
§  1025. 

Subd.   3.     Money  or  damages.    Post.  §  1025. 

Subd.  4.  Special  proceeding,  generally.  Post, 
§§  1063-1821. 

Legislation  §  1022.  Enacted  March  11.  1872; 
based  on  Practice  Act,  §  495  (New  York  Code, 
§  304),  as  amended  by  Stats.  1869-70,  p.  65_,  (1) 
in  introductory  paragraph,  substituting  "are"  for 
"shall  be"  before  "allowed";  (2)  in  subd.  3, 
changing  "where"  to  "when";  and  (3)  in  subd.  4, 
omitting  at  end,  after  "proceeding,"  the  words 
"in  the  nature  of  ati  action." 

Construction  of  section.  The  words  "of 
course,"  as  used  in  this  section,  mean  "as 
a  matter  of  right";  and  in  the  cases  herein 
provided  for,  the  question  of  costs  is  not 
left  to  the  discretion  of  the  court:  they 
follow  the  judgment.  Schmidt  v.  Klotz, 
130  Cal.  223;  62  Pac.  470. 

Actions  for  recovery  of  real  property. 
Under  the  first  and  fifth  subdivisions  of 
this  section,  the  plaintiff  in  an  equitable 
suit,  the  purpose  of  which  is  to  recover 
real  property,  is,  upon  a  judgment  in  his 
favor,  entitled  to  his  costs  as  a  matter  of 
right:    such    action    involves    the    title    to 


1183 


AMOUNT  OF  RECOVERY,  WHEN  CONTROLLING. 


§1022 


430;  77  Pac.  1038.  Where  the  defendant 
took  issue  with  the  plaintiff  and  appel- 
lant as  to  the  latter's  ownership  in  fee, 
and  the  latter  was  decreed  to  be  the  owner 
in  fee,  he  is  entitled  to  his  costs  as  a 
matter  of  right.  Petitpierre  v.  Maguire, 
155  Cal.  242;  100  Pac.  690.  An  action  in- 
volving the  protection  of  an  easement  over 
the  defendant's  land,  in  which  issue  is 
.ioined  upon  the  easement,  is  an  action 
involving  the  title  to  or  the  possession  of 
real  estate,  within  the  fifth  subdivision 
of  this  section.  Hoyt  v.  Hart,  149  Cal. 
722;  87  Pac.  569.  An  action  to  annul  a 
deed  made  by  a  testator,  in  his  lifetime, 
to  the  defendant,  brought  by  the  heirs  at 
law,  who  were  devisees  under  the  will,  is 
an  action  involving  the  title  to  the  land, 
and  in  which  the  prevailing  party  is  en- 
titled to  costs  as  a  matter  of  right.  Gib- 
son V.  Hammang,  145  Cal.  454;  78  Pac.  953. 
In  an  action  to  determine  the  priority  of 
water  rights,  the  amount  of  damages  re- 
covered is  immaterial,  as  affecting  the 
costs.  Marius  v.  Bicknell,  10  Cal.  217; 
Esmond  v.  Chew,  17  Cal.  336.  In  an  ac- 
tion to  foreclose  mechanics'  liens  in  San 
Francisco,  the  prevailing  parties  formerly 
were  entitled  to  recover,  as  costs,  the 
percentage  on  the  amount  recovered,  as 
fixed  by  the  act  of  February  9,  1866. 
Golden  Gate  Lumber  Co.  v.  Sahrbacher, 
105  Cal.  114;  38  Pac.  635. 

Right  to  costs  in  other  actions.  Where 
the  grantee,  who  is  a  necessary  party  to 
an  action  for  the  foreclosure  of  a  mort- 
gage, contests  his  personal  liability  for 
a  deficiency,  he  is  liable  for  costs  in  the 
action,  when  failing  in  that  defense.  Tu- 
lare County  Bank  v.  Madden,  109  Cal.  312; 
41  Pac.  1092.  Upon  mandamus  against  a 
county  treasurer,  the  costs  of  the  proceed- 
ing are  properly  chargeable  against  the 
defendant  personally.  Power  v.  Mav,  123 
Cal.  147;  55  Pae.  796.  The  fact  that  an 
undertaking  is  dispensed  with,  upon  an 
appeal  by  a  county  auditor,  who  is  con- 
testing a  claim  against  a  county  as  illegal, 
does  not  necessawly  imply  that  a  personal 
judgment  for  costs  or  damages  may  not 
be  rendered  against  him  on  the  merits  of 
the  case  for  refusal  to  issue  the  warrant 
improperly,  without  just  cause  to  doubt 
the  validity  of  the  claim.  Lamberson  v. 
Jefferds,  116  Cal.  492;  48  Pac.  485;  Power 
v.  May,  123  Cal.  147;  55  Pac.  796.  Where 
the  owner  of  a  building,  in  an  action  to 
foreclose  a  mechanic's  lien,  pays  into  court, 
before  the  trial  of  the  action,  the  residue 
of  the  fund  properly  remaining  in  his 
hands  as  due  to  the  contractor,  to  be  ap- 
plied toward  payment  of  the  claimants  of 
liens,  he  is  not  liable  for  interest  or  costs. 
Hooper  v.  Fletcher,  145  Cal.  375;  79  Pac. 
418. 

Amount  of  recovery  as  controlling  costs. 
The  only  limitation  upon  the  riyht  of  the 
prevailing  party  to  recover  costs  incurred 


by  him,  whether  the  recovery  is  for  the 
whole  or  a  i)ortion  of  his  claim,  or  whether 
his  claim  is  made  up  of  one  or  of  several 
causes  of  action,  is,  that  he  shall  have 
recovered  three  hundred  dollars  or  over. 
Fox  v.-Hale  etc.  Mining  Co.,  122  Cal.  219; 
54  Pac.  731.  The  ad  damnum  clause  in  a 
complaint  constitutes  the  test  of  jurisdic- 
tion; and  while  it  may  be  that  the  true 
amount  may  sometimes  be  increased  for 
the  purpose  of  bringing  the  case  within 
the  jurisdiction  of  the  superior  court,  yet 
the  inevitable  consequence  of  not  being 
able  to  recover  the  jurisdictional  sum,  so 
as  to  carry  costs,  will  probably  be  suffi- 
cient to  prevent  such  practice  from  be- 
coming common,  and  the  saving  of  costs 
will  compensate  the  defendants  in  the  rare 
instances  in  which  they  may  be  first 
brought  into  the  superior  court  instead 
of  the  justice's  court.  Greenbaum  v.  Mar- 
tinez, 86  Cal.  459;  25  Pac.  12.  Computa- 
tion of  the  amount  of  recovery  as  con- 
trolling costs  means  the  damages  assessed 
by  the  jury  eo  nomine,  exclusive  of  the 
costs  which  they  may  arbitrarily  find. 
Shay  y.  Tuolumne  Water  Co.,  6  Cal.  286. 
The  amount  recovered  or  demanded  does 
not  control  the  question  of  costs  in  cases 
where  superior  and  justices'  courts  have 
concurrent  jurisdiction.  Clark  v.  Brown, 
141  Cal.  93;  74  Pac.  548.  Ordinarily,  the 
only  penalty  for  the  recovery  of  less  than 
the  jurisdictional  amount  is  the  loss  of  the 
costs.  Pratt  v.  Welcome,  6  Cal.  App.  475; 
92  Pac.  500.  Costs  cannot  be  awarded  to 
a  plaintiff,  where  his  recovery  is  reduced 
to  less  than  three  hundred  dollars  by  a 
counterclaim.  Poswa  v.  Jones,  21  Cal.  App. 
664;  132  Pac.  629.  In  an  action  to  re- 
cover several  judgments  for  proportionate 
amounts  of  a  debt  of  a  corporation,  there 
is  no  authority  for  a  joint  judgment  for 
costs  against  all  the  defendants;  and  if 
the  plaintiff  does  not  recover  a  judgment, 
either  joint  or  several,  for  three  hundred 
dollars  or  over,  he  is  not  entitled  to  re- 
cover costs.  Derby  v.  Stevens,  64  Cal.  287; 
30  Pac.  820.  Where  no  question  is  made 
of  the  good  faith  of  the  plaintiff  in  bring- 
ing a  suit  in  a  superior  court  for  a  sum 
exceeding  three  hundred  dollars,  the  only 
penalty  for  a  recovery  of  less  than  the 
jurisdictional  amount  is  the  loss  of  the 
costs.  Pratt  y.  Welcome,  6  Cal.  App.  475; 
92  Pac.  500. 

Costs  after  dismissal.  The  plaintiff, 
where  the  answer  seeks  no  affirmative  re- 
lief, has  an  unqualified  right  to  dismiss 
his  action  upon  tender  of  the  clerk's  fee 
for  entering  the  dismissal;  the  court  has 
no  jurisdiction  to  order  the  clerk  not  to 
enter  the  dismissal  until  the  plaintiff  shall 
have  paid  the  costs  of  the  defendant,  and 
to  order  the  case  reset  for  trial  upon  the 
refusal  of  the  plaintiff  to  comply  with  such 
condition;  the  costs  which  follow  the  dis- 
missal cannot  be  made  a  prerequisite  con- 


§§  1023, 1024 


COSTS. 


1184 


dition  of  the  entry  of  dismissal.  Hopkins 
V.  Superior  Court,  136  Cal.  552;  69  Pac. 
299. 

Costs  on  judgment  by  confession.  See 
note  post,  §  1025. 

CODE  COMMISSIONERS'  NOTE.  1.  Costs 
in    action    for    recovery    of    real    property.      In 

ejectment,  if  plaintiff  recovers  judgment,  he  is 
entitled  to  costs,  even  if  he  recovers  a  part  only 
of  the  demanded  premises.  Havens  v.  Dale,  30 
Cal.  547.  If,  in  an  action  concerning  water 
privileges  and  damages  for  diversion  of  water, 
judgment  is  rendered  for  less  than  two  hundred 
dollars,  it  will  carry  costs.  Marius  v.  Bicknell, 
10  Cal.  217. 

2.  Costs  in  action  to  recover  personal  prop- 
erty. If  the  plaintiff  in  a  suit  for  recovery 
of  possession  of  personal  property  takes  the 
property  at  the  commencement  of  the  action, 
and  the  defendant  asks  a  return  of  it,  and  the 
defendant  was  entitled  to  the  property  at  the 
commencement  of  the  action,  but  his  right  to 
possession  of  the  property  ceased  and  rested  in 
the  plaintiff  before  trial,  the  judgment  should 
leave  the  property  in  plaintiff's  possession,  but 
award  costs  to  defendant.  O'Connor  v.  Blake, 
29  Cal.  312.  A  defendant  in  replevin  who 
recovers  judgment,  the  jury  failing  to  find  the 
value  of  the  property  to  exceed  two  (now  three) 
hundred  dollars,  is  nevertheless  entitled  to  his 
costs,  where  the  plaintiff's  complaint  states  its 
value  at  a  sum  exceeding  that  amount.  Edgar 
V.  Gray,  5  Cal.  267. 


3.  Costs  in  action  for  recovery  of  money  or 
damages.  The  party  obtaining  judgment  in  an 
action  for  the  recovery  of  money  or  damages,  is 
entitled  to  his  costs,  and  the  court  has  no  dis- 
cretion in  awarding  them.  Stoddard  v.  Tread- 
well,  29  Cal.  281.  Costs  of  a  suit  form  no 
liart  of  the  matter  in  dispute,  and  the  supreme 
court  has  no  jurisdiction  of  an  appeal,  if  the 
amount  involved  is  less  than  three  hundred  dol- 
lars, although  the  costs  added  thereto  may  in- 
crease it  beyond  that  sum.  Dumphy  v.  Guindon, 
13  Cal.  30;  overruling  Gordon  v.  Ross,  2  Cal. 
157;  see  Zabriskie  v.  Torrey,  20  Cal.  174; 
Meeker  v.  Harris,  23  Cal.  286;  see  also  §44, 
ante,  note  6.  Costs  will  not  be  given  plaintiff, 
unless  he  recovers  judgment  for  the  sum  of 
three  hundred  dollars  in  an  action  for  money 
or  damages.  Costs  are  incident  to  the  judg- 
ment, and  cannot  be  given  by  the  jury  by  way 
of  damages.  Shay  v.  Tuolumne  Water  Co.,  6 
Cal.  286.  The  position  of  the  appellant  is,  that 
the  jury,  having  found  that  the  ditch  was  not 
a  nuisance,  the  case  is  to  be  regarded,  so  far 
as  the  costs  are  concerned,  as  a  simple  action 
for  damages  for  injuries  to  the  property  of 
the  plaintiff.  If  this  position  be  correct,  no 
costs  were  taxable  to  either  party  under  the 
statute,  the  damages  recovered  being  less  than 
two  hundred  dollars.    Votan  v.  Reese,  20  Cal.  90. 

4.  Generally.  Formerly  the  value  of  the  prop- 
erty mentioned  in  subdivision  2,  and  the  amount 
to  be  recovered  by  plaintiff  under  subdivision  3, 
was  fixed  at  two  hundred  dollars,  instead  of 
three  hundred  dollars,  and  the  decisions  quoted 
above  were  rendered  when  the  law  stood  thus. 


J  1023.  Several  actions  brought  on  a  single  cause  of  action  can  carry- 
costs  in  but  one.  When  several  actions  are  brought  on  one  bond,  undertak- 
ing, promissory  note,  bill  of  exchange,  or  other  instrument  in  writing,  or  in 
any  other  case  for  the  same  cause  of  action,  against  several  parties  who 
might  have  been  joined  as  defendants  in  the  same  action,  no  costs  can  be 
allowed  to  the  plaintiff  in  more  than  one  of  such  actions,  which  may  be  at 
his  election,  if  the  party  proceeded  against  in  the  other  actions  were,  at 
the  commencement  of  the  previous  action,  openly  within  this  state;  but  the 
disbureements  of  the  plaintiff  must  be  allowed  to  him  in  each  action. 

Several  parties,  who  might  have  been  joined  of  the  wrong-doers  had  been  paid  and  sat- 
isfied, though  the  judgment  for  damages 
against  the  other  wrong-doers  is  also  sat- 
isfied and  extinguished  thereby,  yet  the 
plaintiff  is  entitled  to  recover  the  costs 
of  a  separate  action  against  the  other 
wrong-doers.  Butler  v.  Ashworth,  110  Cal. 
614;  43  Pac.  4,  386. 


as  defendants.    Ante,  §  383 

Legislation  §  1023.  1.  Enacted  March  11, 
1872:  based  on  Practice  Act,  §  496  (New  York 
Code,  §  304),  substituting  (1)  "can"  for  "shall" 
after  "costs,"  and  (2)  "must"  for  "shall"  before 
"be  allowed." 

2.  Amendment  by  Stats.  1901,  p.  180;  un- 
constitutional.    See  note  ante,  §  5. 

Construction  of  section.  "Where  several 
acts  of  tort-feasors  contribute  to  the  same 
injury,  there  can  be  but  one  satisfaction 
in  damages  therefor;  yet  if  the  acts  are 
not  joint,  the  case  is  not  within  this  sec- 
tion, which  prevents  the  recovery  of  costs 
in  more  than  one  action,  where  the  de- 
fendants, sued  separately,  might  have  been 
joined  as  defendants;  and  in  such  case, 
where  the  judgment  and  costs  against  one 


CODE  COMMISSIONERS'  NOTE.  If  an  ac- 
tion was  commenced  against  several  defendants, 
and  there  was  a  judgment  in  their  favor,  they 
cannot  all  be  allowed  separate  costs,  but  can 
only  recover  jointly,  as  though  there  had  been 
but  one  defendant.  Rice  v.  Leonard,  5  Cal.  61. 
In  ejectment,  if  the  entry  of  such  several  judg- 
ments increases  the  costs,  it  might  be  ground 
for  retaxing  or  apportioning  them.  Lick  v.  Stock- 
dale,  18  Cal.  219. 


§  1024.     Defendant's  costs  must  be  allowed  of  course,  in  certain  cases. 

Costs  must  be  allowed  of  course  to  the  defendant  upon  a  judgment  in  his 
favor  in  the  actions  mentioned  in  section  ten  hundred  and  twenty-two,  and 
in  special  proceedings. 


Special  proceedings,  generally.  Post,  §§  1063- 
1821. 

Legislation  §  1024.  1.  Enacted  March  11, 
1872:  based  nn  Practice  Act,  §  497  (New  York 
Code,  §  305),  substituting  (1)  "must"  for  "shall," 
(2)  "ten  hundred  and  twenty-two"  for  "four  hun- 
dred  and  ninety-five,"   and   .(3)    "in   special   uro- 


ceedings"    for    "in    a    special    proceeding    in    the 
nature  of  an  action." 

2.   Amendment    by    Stats.    1901,    p.    180;    un- 
constitutional.   See  note  ante,  §  5. 

Costs  for  defendant  upon  judgment  in 
his    favor.     The    defendant    can    recover 


1185 


COSTS  IN  DISCRETION  OP  COURT  WHEN. 


§1025 


costs  only  "upon  a  .iudgment  in  his  favor." 
Fox  V.  Hale  etc.  Mining  Co.,  122  Cal.  219; 
51Pac.  731. 

Where  plaintiff  nonsuited.  Where  the 
plaintiff  is  nonsuited  upon  a  jury  trial,  the 
jury  fees  may  properly  be  made  payable 
by 'the  plaintiff.  Fairchild  v.  King,  102 
Cal.  320;  36  Pac.  649. 

Against  cross-complainant.  Where  per- 
sona, by  their  cross-complaint  filed  in  an 
action  to  quiet  title,  make  it  necessary 
for  another  party  to  such  action  to  con- 
tinue his  appearance  in  court,  he  may  re- 
cover whatever  costs  he  is  thus  compelled 
to  incur,  from  the  parties  who  unjustly 
bring  or  keep  him  in  court.  Summerville 
V.  March,  142  Cal.  554;  100  Am.  St.  Rep. 
145;  76  Pac.  388. 

Against  intervener.  An  intervener,  by 
filing  his  complaint  in  intervention,  makes 
the  relator  a  defendant  thereto,  and  upon 
judgment  in  favor  of  the  relator  against 
the  intervener,  the  relator  is  entitled  to 
recover  costs  against  him.  People  v.  Camp- 
bell, 138  Cal.  11 ;  70  Pac.  918. 

Where  defendant  recovers  less  than  three 
hundred  dollars.  Upon  the  failure  of  ti.e 
plaintiff  to  recover  in  an  action,  costs  are 
to  be  allowed  as  of  course  to  the  defend- 
ant, notwithstanding  the  recovery,  by  the 
defendant,  of  less  than  three  hundred  dol- 
lars upon  his  counterclaim.  Davis  v.  Hur- 
gren,  125  Cal.  48;  57  Pac.  684. 

In  suit  for  injunction.  In  a  suit  for  an 
injunction,  where  all  the  issues  made  by 
the  pleadings  are  found  for  the  defend- 
ant, he  is  entitled  to  judgment  for  his 
costs.  Van  Horn  v.  Decrow,  136  Cal.  117; 
68  Pac.  473.  In  an  action  to  determine  the 
title  to  land,  and  to  enjoin  the  defendant 
from  trespassing  upon  the  same  and  from 
asserting  any  title  thereto,  and  the  court 
decides  that  the  plaintiff  has  no  cause  of 
action,    the    defendant    is    entitled    to    his 


costs.  Lawrence  v.  Getchell,  2  Cal.  Unrep. 
267;  2  Pac.  746. 

In  replevin.  A  defendant  in  replevin, 
who  recovers  judgment,  the  jury  failing 
to  find  the  value  of  the  property  to  be 
greater  than  the  amount  necessary  to  carry 
costs,  is  nevertheless  entitled  to  costs, 
where  the  plaintiff's  complaint  states  its 
value  at  a  sum  exceeding  that  amount. 
Edgar  v.  Gray,  5  Cal.  267. 

In  action  to  determine  title.  Where  the 
court,  in  an  action  to  determine  title,  de- 
cides that  the  plaintiff  has  no  cause  of 
action,  the  defendant  is  entitled,  as  of 
course,  to  his  costs  and  disbursements. 
Lawrence  v.  Getchell,  2  Cal.  Unrep.  267; 
2  Pac.  746. 

In  suits  for  specific  performance.  A  suit 
for  the  specific  performance  of  contract 
to  convey  land  involves  the  title  to  real 
estate,  and  therefore  the  defendant  is  en- 
titled to  costs  against  the  plaintiff  as  a 
matter  of  right,  upon  a  judgment  in  his 
favor;  and  where  specific  performance  is 
refused  because  of  the  fraudulent  misrep- 
resentations of  the  plaintiff,  and  the  de- 
fendant is  free  from  blame,  costs  to  the 
defendant  follow  as  of  course.  Kelly  v. 
Central  Pacific  R.  R.  Co.,  74  Cal.  565;  16 
Pac.  390. 

Joint  judgment  for  costs.  Costs,  by  way 
of  indemnity,  should  not  be  taxed  in  case 
of  a  nonsuit;  the  statute  looks  to  an  actual 
determination  of  the  cause  upon  its  mer- 
its; so,  where  an  action  has  been  com- 
menced against  several  defendants,  and 
there  has  been  a  judgment  in  their  favor, 
they  are  not  all  entitled  to  recover  costs, 
but  can  recover  only  jointly,  as  though 
there  had  been  but  one  defendant.  Rice 
V.  Leonard,  5  Cal.  61.  Defendants,  who 
were  sued  jointly,  but  who  answered  sepa- 
rately, may  be  awarded  a  joint  judgment 
for  costs.  Leadbetter  v.  Lake,  118  Cal. 
515:  50  Pac.  686. 


§  1025.     Costs,  when  in  the  discretion  of  the  court.     In  other  actions  than 

those  mentioned  in  section  ten  hundred  and  twenty-two,  costs  may  be  al- 
lowed or  not,  and,  if  allowed,  may  be  apportioned  between  the  parties,  on 
the  same  or  adverse  sides,  in  the  discretion  of  the  court;  but  no  costs  can 
be  allowed  in  an  action  for  the  recovery  of  money  or  damages,  when  the 
plaintiff  recovers  less  than  three  hundred  dollars,  nor  in  an  action  to  recover 
the  possession  of  personal  property,  when  the  value  of  the  property  is  less 
than  three  hundred  dollars. 

not  rest  in  the  discretion  of  the  court, 
but  they  follow  the  judgment:  the  allow- 
ance of  costs  rests  in  the  discretion  of  the 
court,  only  in  such  cases  as  are  provided 
for  by  statute.  Stoddard  v.  Treadwell,  29 
Cal.  281.  Where  there  has  been  no  tender 
of  indemnity  before  suit  on  a  lost  promis- 
sory note,  the  plaintiff  is  not  entitled  to 
costs,  unless  the  defendant  has  waived  a 
tender,  in  which  case  the  costs  are  in  the 
discretion  of  the  court.    Randolph  v.  Har- 


Proceedings  by  execution  creditor  to  appraise 
homestead,    costs   of.     See   Civ.   Code,  §  1259. 

Legislation  g  1025.  1.  Enacted  March  11, 
1873;  based  on  Practice  Act,  §  498  (New  York 
Code,  §  306),  as  amended  by  Stats.  1865-66, 
p.  847,  substituting  (1)  "ten  hundred  and  twenty- 
two"  for  "four  hundred  and  ninety-five,"  and  (2) 
"can"  for  "shall"   before   "be  allowed." 

2.  Amendment  by  Stats.  1901,  p.  180;  un- 
constitutional.    See  note  ante,  §  ">. 

Costs  in  discretion  of  court  when.     Where 
costs  are   allowed   to   the   i)revailing  party 
as  a  matter  of  course,  their  allowance  does 
1  Fair. — 75 


§1025 


COSTS. 


1186 


ris,  28  Cal.  561;  87  Am.  Dec.  139.  The 
discretion  conferred  upon  the  court  by  this 
section  does  not  justify  the  allowance  of 
costs  not  properly  chargeable  as  such,  such 
as  for  the  making  of  maps,  surveys,  etc. 
Bathgate  v.  Irvine,  126  Cal.  135;  77  Am. 
St.  Eep.  158;  58  Pac.  442.  A  plaintiff  who 
fails  to  recover  against  a  defendant  is  not 
entitled  to  any  costs,  notwithstanding  the 
fact  that  they  were  largely  incurred  in 
defending  against  a  counterclaim  of  such 
defendant,  upon  which  the  defendant  also 
failed  to  recover;  in  such  case  the  court 
is  allowed  no  discretion  as  to  costs.  Ben- 
son V.  Braun,  134  Cal.  41;  66  Pac.  1.  In 
an  action  to  abate  a  nuisance,  whether 
considered  as  a  suit  in  equity,  or  as  a 
special  proceeding  by  virtue  of  consti- 
tutional provisions  and  the  statute,  the 
allowance  of  costs  lies  in  the  discretion 
of  the  court.  McCarthy  v.  Gaston  Ridge 
Mill  etc.  Co.,  144  Cal.  542;  78  Pac.  7.  In 
an  action  to  quiet  title  to  the  waters  of 
a  stream,  the  part  of  the  decree  therein, 
that  neither  party  recover  costs,  is  within 
the  equitable  discretion  of  the  court. 
Gutierrez  v.  Wege,  145  Cal.  730;  79  Pac. 
449.  The  trial  court  has  power  to  dis- 
allow the  costs  of  taking  depositions, 
where  it  appears  that  such  taking  was 
unnecessary.  Lomita  Land  etc.  Co.  v.  Eob- 
inson,  154  Cal.  36;  18  L.  R.  A.  (N.  S.) 
1106;  97  Pac.  10.  The  allowance  of  costs 
lies  in  the  discretion  of  the  court  in  ac- 
tions of  foreclosure  (Irvine  v.  Perry,  119 
Cal.  352;  51  Pac.  544),  and  also  in  actions 
for  divorce.  Brenot  v.  Brenot,  102  Cal. 
294;  36  Pac.  672. 

Costs  in  eq.uity  cases.  The  general  rule, 
that  in  suits  in  equity  the  costs  may  be 
apportioned  according  to  the  discretion  of 
the  court,  has  been  modified  in  this  state 
by  statutory  provisions  regulating  the 
allowance  of  costs.  Hoyt  v.  Hart,  149  Cal. 
722;  87  Pac.  569;  Beal"  v.  Stevens,  72  Cal. 
451;  14  Pac.  186.  In  suits  in  equity,  costs 
are  discretionary,  both  in  the  trial  court 
and  in  the  appellate  court.  Forsyth  v. 
Butler,  152  Cal.  396;  93  Pac.  90;  Beal  v. 
Stevens,  72  Cal.  451;  14  Pac.  186.  Costs, 
in  suits  in  equity,  are  always  in  the  dis- 
cretion of  the  court,  and,  whether  they 
are  granted  or  withheld,  they  are  but  as 
incident  to  and  no  part  of  the  relief 
sought:  a  party  getting  the  relief  sought 
may  be  compelled  to  pay  costs.  Abram 
V.  Stuart,  96  Cal.  235;  31  Pac.  44.  In 
suits  in  equity,  in  which  the  right  to 
divert  and  use  certain  waters  is  involved, 
costs  are  allowed,  apportioned,  or  with- 
held in  the  discretion  of  the  court.  Gal- 
latin V.  Corning  Irrigation  Co.,  163  Cal. 
405;  Ann.  Cas.  1914A,  74;  126  Pac.  864; 
Beal  v.  Stevens,  72  Cal.  451;  14  Pac.  186. 
In  an  action  for  an  injunction,  where  the 
issues  for  the  determination  of  which  the 
costs  were  chiefly  incurred  were  decided 
against  the  plaintiff,  the  action  of  the  trial 


court  in  granting  a  judgment  in  favor  of 
the  defendants  for  their  costs  is  not  an 
abuse  of  discretion,  although  the  injunc- 
tion is  granted  in  favor  of  the  plaintiff. 
Abram  v.  Stuart,  96  Cal.  235;  31  Pac.  44. 
In  an  action  for  an  injunction,  costs  lie 
in  the  discretion  of  the  court.  Esmond  v. 
Chew,  17  Cal.  336. 

Costs  against  co-defendants.  Where  both 
husband  and  wife,  as  defendants,  answer 
in  an  action  to  set  aside  a  deed  to  the 
wife,  and  judgment  is  rendered  for  the 
plaintiff,  costs  are  properly  charged  against 
both  defendants.  Collins  v.  O'Laverty,  136 
Cal.  31;  68  Pac.  327. 

Against  trust  fund.  A  trust  fund  may 
be  charged  with  the  costs  of  an  action  to 
preserve  the  fund.  Alemany  v.  Wensinger, 
40  Cal.  288. 

Judgment  for  less  than  three  hundred 
dollars.  Costs  are  not  allowable,  in  the 
superior  court,  in  any  case  in  which  the 
judgment  is  for  less  than  three  hundred 
dollars,  regardless  of  whether  such  judg- 
ment is  awarded  after  the  issues  are  ac- 
tually tried,  or  is  entered  without  trial 
by  the  agreement  of  the  parties.  Murphy 
V.  Casey,  13  Cal.  App.  781;  110  Pac.  956; 
Bemmerly  v.  Smith,  136  Cal.  5;  68  Pac. 
97;  Quitzow  v.  Perrin,  120  Cal.  255;  52 
Pac.  632;  Edwards  v.  Crepin,  68  Cal.  37; 
8  Pac.  616.  Costs  cannot  be  awarded  to 
a  plaintiff,  when  his  money  is  reduced  to 
less  than  three  hundred  dollars  by  a  coun- 
terclaim. Poswa  V.  Jones,  21  Cal.  App. 
664;  132  Pac.  629.  The  act  of  March  23, 
1872,  concerning  actions  for  libel  and 
slander,  did  not  give  a  plaintiff  recover- 
ing judgment  any  costs  beyond  the  amount 
allowed  by  the  general  law;  therefore,  a 
plaintiff  in  such  an  action,  who  recovered 
less  than  three  hundred  dollars,  was  not 
entitled  to  costs.  Jacobi  v.  Baur,  55  Cal. 
554.  In  an  action  for  damages  and  for  an 
injunction,  where  the  injunction  is  denied, 
a  judgment  for  less  than  three  hundred 
dollars  does  not  carry  costs.  Himes  v. 
Johnson,  61  Cal.  259;  Brown  v.  Delavau, 
63  Cal.  303.  The  provision  of  this  sec- 
tion, that  costs  cannot  be  allowed  in  an 
action  for  the  recovery  of  money  or  dam- 
ages, where  the  plaintiff  recovers  less  than 
three  hundred  dollars,  evidently  applies  to 
both  parties  to  the  action,  and  forbids  the 
recovery  of  costs  by  either  party.  An- 
thony V.  Grand,  101  Cal.  235;  35  Pac.  859; 
Frese  v.  Mutual  Life  Ins.  Co.,  11  Cal.  App. 
387;  105  Pac.  265.  An  action  to  foreclose 
a  lien  is  an  action  in  equity,  and  costs 
are  properly  allowed  therein,  against  the 
necessary  parties  to  the  action,  who  ap- 
pear and  make  affirmative  defenses  against 
the  claim  of  the  plaintiff,  notwithstand- 
ing judgment  is  for  less  than  three  hun- 
dred dollars,  and  in  such  case  the  superior 
court  has  concurrent  jurisdiction  with  that 
of  justices  of  the  peace,  and  the  plaintiff 
is  entitled  to  costs,  whether  he  seeks  re- 


1187 


COSTS — TRANSCRIPT  AS — OF   APPEAL. 


§1025 


lief  in  one  jurisdiction  or  the  other.  Clark 
V.  Brown,  141  Cal.  93;  74  Pae.  548.  The 
recovery  of  a  ju(l<;meut  for  less  than  three 
hundred  dollars  affects  only  the  question 
of  costs,  and  not  the  jurisdiction  of  the 
court,  where  the  ad  damnum  clause  of  the 
complaint  is  for  a  greater  amount.  Sulli- 
van V.  California  Realty  Co.,  142  Cal.  201; 
75  Pae.  767.  Where  the  plaintiff,  in  an 
action  for  money,  recovers  less  than  three 
hundred  dollars,  he  is  not  entitled  to  costs, 
and  the  allowance  of  costs  in  such  case  is 
erroneous;  but  where  no  costs  are  in  fact 
entered  in  the  judgment,  and  a  blank  space 
after  the  provision  therefor  is  left  unfilled, 
the  error  is  harmless.  Boland  v.  Ashurst 
Oil  etc.  Co.,  145  Cal.  405;  78  Pae.  871. 

Costs  as  controlled  by  damages.  In  an 
action  for  damages  for  trespass  on  real 
property,  and  for  an  injunction  to  restrain 
threatened  waste,  the  equitable  awarding 
of  costs  is  not  controlled  by  the  amount 
of  damages  recovered.  Bemmerly  v.  Smith, 
136  Cal.  5;  68  Pae.  97. 

Cost  of  transcript.  Where  no  applica- 
tion appears  to  have  been  made  to  the 
superior  judge,  directing  the  official  court 
reporter  to  transcribe  the  evidence,  a  party 
who  has  paid  cash  to  such  reporter  to  pro- 
cure a  transcript  of  the  evidence,  is  not 
entitled  to  recover  the  same  as  costs.  Blair 
V.  Brownstone  Oil  etc.  Co.,  20  Cal.  App. 
316;  128  Pae.  1022. 

Payment  of  costs  as  prerequisite  to  re- 
lief. A  condition  that  the  defendant  shall 
pay  the  p]aintift"s  costs,  in  an  order  grant- 
ing a  new  trial,  is  sufficiently  complied 
with,  where  the  defendant  tendered  the 
real  amount  of  costs  within  the  time  lim- 
ited by  the  order,  although  less  than  the 
amount  stated  in  the  judgment,  and  there- 
after moved  to  retax  the  costs.  Higuerra 
V.  Bernal,  46  Cal.  580.  A  condition  that 
plaintiff  shall  pay  a  certain  amount  of 
costs,  in  an  order  granting  him  a  new 
trial,  cannot  be  complained  of  by  the  de- 
fendant, nor  does  it  indicate  that  the  act 
of  the  court  in  granting  the  new  trial  was 
erroneous.  Anglo-Nevada  Assurance  Corp. 
V.  Ross,  123  Cal.  520;  56  Pae.  335;  and 
see  Brooks  v.  San  Francisco  etc.  Ry.  Co., 
110  Cal.  173;  42  Pae.  570.  Where  an 
order  was  made,  setting  aside  a  judgment 
for  want  of  jurisdiction,  by  reason  of  a 
false  return  of  service  of  summons,  costs 
cannot  be  imposed.  Waller  v.  Weston,  125 
Cal.  201;  57  Pae.  892.  In  condemnation 
proceedings,  the  only  requirement  of  the 
statute  is  the  payment  of  the  sum  of 
money  assessed,  within  thirty  days  after 
final  judgment,  which  excludes  the  idea 
that  the  payment  of  interest  on  such 
amount,  or  the  payment  of  costs,  is  in- 
cluded. San  Francisco  etc.  Ry.  Co.  v. 
Leviston,  134  Cal.  412;  66  Pae.  473.  In 
an  action  to  enforce  a  resulting  trust  in 
land,  where  the  proof  showed  the  plaintiff 


entitled  to  a  conveyance  only  upon  the 
payment  of  the  defendant's  lien,  which 
jiaynient  he  had  not  tendered,  he  is  not 
entitled  to  such  relief,  except  upon  pay- 
ment of  costs.  Bell  V.  Solomons,  142  Cal. 
59;  75  Pae.  649. 

Costs  of  appeal.  The  appellate  courts 
have  a  discretion  to  determine  what  are 
the  necessary  costs  incurred  upon  the 
appeal,  notwithstanding  the  memorandum 
of  costs  claimed  upon  the  appeal  is  filed 
in  the  lower  court.  Blair  v.  Brownstone 
Oil  etc.  Co.,  20  Cal.  App.  316;  128  Pae. 
1022.  The  allowance  or  disallowance  of 
items  for  expense  and  disbursements  in- 
curred upon  the  trial  of  an  action  must 
be  left,  in  nearly  every  instance,  to  the 
discretion  of  the  judge  before  whom  the 
cause  was  tried,  subject  to  review  upon 
appeal;  and  the  same  principle  applies  to 
its  taxation  of  expenses  in  the  appellate 
court.  Bond  v.  United  Railroads,  20  Cal. 
App.  124;  128  Pae.  786;  Blair  v.  Brown- 
stone Oil  etc.  Co.,  20  Cal.  App.  316;  128 
Pae.  1022.  Where,  upon  appeal  from  the 
judgment,  and  an  order  denying  a  new 
trial,  the  order  is  affirmed,  but  the  cause 
is  remanded,  with  directions  to  modify 
the  judgment,  and  no  directions  concern- 
ing the  costs  of  appeal,  the  clerk's  power 
is  limited,  under  the  rules  of  the  supreme 
court,  to  the  entry  of  judgment  for  costs, 
only  on  the  appeal  from  the  judgment. 
Crittenden  v.  San  Francisco  Savings  Union, 
157  Cal.  201;  107  Pae.  103. 

CODE  COMMISSIONERS'  NOTE.  See  note 
to  §  1022,  ante.  Costs  in  equity  are  always  in 
tke  discretion  of  the  court,  and,  whether  granted 
or  not,  are  but  incidents  to,  and  no  part  of,  tha 
relief  sought.  Gray  v.  Dougherty,  25  Cal.  282. 
In  an  action  for  damages  to  a  mining  claim, 
and  for  an  injunction,  plaintiffs  obtained  judg- 
ment   for    one    hundred    dollars,    and    costs    taxed 

at    $ ,    a    perpetual    injunction    being    granted 

also.  All  costs  of  trial  were  denied,  except  as 
to  costs  accrued  by  reason  of  the  injunction 
granted,  and  it  was  held  that  this  is  a  case 
where  the  allowance  of  costs  is  in  the  discretion 
of  the  court  below.  Esmond  v.  Chew,  17  Cal. 
336.  In  an  action  upon  a  lost  note,  if  indem- 
nity was  not  tendered  by  plaintiff  before  suit 
brought,  he  cannot  recover  costs,  unless  the 
defendant  has  waived  the  tender,  and  then  costs 
rest  in  the  discretion  of  the  court.  Randolph  v. 
Harris,  23  Cal.  562;  87  Am.  Dec.  139.  When 
surety  by  mortgage,  without  personal  liability, 
not  to  be  taxed  with  costs,  in  an  action  to 
foreclose  the  mortgage  and  subject  the  securities 
in  his  hands  to  the  payment  of  the  notes.  See 
facts  of  the  case.  Van  Orden  v.  Durham,  35 
Cal.  148.  The  county  court  may  render  judg- 
ment against  appellant  for  costs,  on  dismissal  of 
an  attempted  appeal  from  a  judgment  of  a  jus- 
tice's court,  by  reason  of  the  failure  of  ap- 
pellant to  perfect  his  appeal,  or  for  want  of 
jurisdiction  of  the  subject-matter  of  the  appeal. 
Blair  v.  Cummings,  39  Cal.  669;  People  v. 
County  Court  of  Placer  County,  Sup.  Ct.  Cal., 
October  term,  1869  (not  reported).  In  a  pro- 
ceeding for  the  sale  of  property  held  in  trust 
for  religious  or  charitable  purposes,  the  costs  of 
litigation  and  reasonable  counsel  fees  are  a 
proper  charge  upon  the  trust  fund,  and  should 
be  allowed  out  of  it  by  the  court.  Alemany  v. 
Wen.singer,  40  Cal.  289;  see  Von  Schmidt  v. 
Huntington,  1  Cal.  55, 


1026, 1027 


COSTS. 


1188 


§1026.  When  the  several  defendants  are  not  united  in  interest,  costs 
may  be  severed.  When  there  are  several  defendants  in  the  actions  men- 
tioned in  section  ten  hundred  and  twenty-two,  not  united  in  interest,  and 
making  separate  defenses  by  separate  answers,  and  plaintiff  fails  to  recover 
judgment  against  all,  the  court  must  award  costs  to  such  of  the  defendants 
as  have  judgment  in  their  favor. 


Judgment,  for  some  defendants.    Ante,  §  578. 
Costs,  wliere  several  defendants.    Ante,  §  1023. 

Legislation    §    1026.      1.   Enacted     March     11, 
1872;  based  on  Practice  Act,  §  499   (New  York 


Code,  §  306),  substituting  (1)  "ten  hundred  and 
twenty-two"  for  "four  hundred  and  ninety-five," 
and   (2)   "must"  for  "shall." 

3.   Repealed     by     Stats     1901,     p.     180;     un- 
constitutional.   See  note  ante,  §  5. 


§  1027.  Costs  on  appeal.  The  prevailing  party  on  appeal  shall  be  en- 
titled to  his  costs  excepting  when  judgment  is  modified,  and  in  that  event 
the  matter  of  costs  is  Avithin  the  discretion  of  the  appellate  court.  The 
party  entitled  to  costs,  or  to  whom  costs  are  awarded,  may  recover  all 
amounts  actually  paid  out  by  him  in  connection  with  said  appeal  and  the 
preparation  of  the  record  for  the  appeal,  including  the  costs  of  printing 
briefs ;  provided,  however,  that  no  amount  shall  be  allowed  as  costs  of  print- 
ing briefs  in  excess  of  fifty  dollars  to  any  one  party.  The  appellate  court 
may  reduce  costs  in  case  of  the  insertion  of  unnecessary  matter  in  the 
record. 


Legislation  §  1027.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act,  §  500  (New  York 
Code,  §  306),  and  then  read:  "§  1027.  In  the 
following  cases  the  costs  of  appeal  is  [sic]  in 
the  discretion  of  the  court:  1.  When  a  new  trial 
is  ordered;  2.  When  a  judgment  is  modified." 

2.   Amended  by   Stats.   1913.   p.   1033. 

Costs  included  what.  The  costs  upon 
appeal  are  properly  the  costs  in  the  ap- 
pellate court,  and  the  costs  of  making  up 
the  appeal  in  the  court  below,  including 
the  cost  of  making  out  the  transcript; 
and  where  a  case  is  remanded  for  further 
proceedings,  and  the  costs  are  awarded  in 
the  appellate  court  in  general  items,  costs 
upon  api)eal,  only,  are  meant,  with  the 
costs  of  the  former  trial  left  to  abide  the 
event  of  the  suit.  Gray  v.  Gray,  11  Cal. 
341.  A  transcript  of  the  reporter's  notes, 
used  for  the  purpose  of  preparing  the 
statement  on  motion  for  a  new  trial,  can- 
not be  taxed  as  costs  upon  appeal.  Bank 
of  Woodland  v.  Hiatt,  59  Cal.  5S0. 

Costs,  where  judgment  is  modified. 
Where  the  judgment  is  modified  because 
of  an  apparent  error,  which  the  appellant 
might  have  had  corrected  in  the  trial  court 
on  motion,  the  respondent  will  not  be 
taxed  with  costs.  Cassin  v.  Marshall,  18 
Cal.  689;  Noonan  v.  Hood,  49  Cal.  293. 

Coots  of  frivolous  appeal.  The  costs  of 
appeal,  and  damages  for  delay  as  part  of 
the  costs  of  appeal,  will  be  allowed,  where 
the  only  error  upon  the  record  is  a  trivial 
clerical  error  in  the  computation  of  in- 
terest; such  an  appeal  is  essentially 
frivolous,  as  the  error  would  have  been 
corrected  by  the  trial  court,  upon  its  at- 
tention being  called  to  it.  Eouutree  v. 
I.  X.  L.  Lime  Co.,  106  Cal.  62;  39  Pac.  16. 

Of  former  appeal.  In  awarding  judg- 
ment to  a  plaintiff  after  a  second  trial,  it 


is  error  to  include  the  costs  of  a  former 
appeal,  upon  which  costs  were  awarded  to 
the  defendant.  Huellmantel  v.  Huellman- 
tel,  124  Cal.  583;  57  Pac.  582. 

Certificate  to  transcript.  The  supreme 
court  has  not  the  power  to  compel  the 
respondent's  counsel  to  agree  to  the  cer- 
tification of  the  transcript  upon  appeal, 
regardless  of  the  merits  or  outcome  of  the 
appeal,  under  absolute  penalty  for  re- 
fusal; and  its  rule  does  not  relieve  the 
appellant  from  the  duty  of  advancing  the 
cost  of  the  clerk's  certification  of  the  tran- 
script, nor  relieve  him  from  the  burden  of 
paying  such  cost  if  his  appeal  is  not  suc- 
cessful, but  allows  the  respondent  the 
privilege  of  saving  possible  expense  if  the 
appeal  is  successful,  and  precludes  the  ap- 
pellant from  recovering  such  cost  if  the 
transcript  is  not  presented  to  the  respond- 
ent for  approval.  Loftus  v.  Fischer,  113 
Cal.  286;  45  Pac.  328;  114  Cal.  131;  45 
Pac.  1058. 

Power  of  appellate  court  to  award  costs  on  dis- 
missal of  appeal  for  want  of  jurisdiction.  See 
note  13  Ann.  Cas.  1048. 

CODE  COMMISSIONEES'  NOTE.  In  an  ac- 
tion for  ejectment,  the  court  below  rendered 
judgment  for  possession  and  damages,  the  finding 
not  authorizing  a  judgment  for  damages,  yet  the 
whole  judgment  for  both  possession  and  dam- 
ages was  affirmed  in  the  supreme  court,  upon 
respondent's  remitting  the  damages,  and  paving 
the  costs  of  appeal.  Doll  v.  Feller,  16  Cal.  433. 
If  judgment  of  the  court  below  is  reversed,  and 
a  new  trial  had,  the  costs  of  the  first  trial  are 
part  of  the  final  bill  of  costs.  Visher  v.  Webster, 
13  Cal.  58.  A  judgment  for  too  much  interest 
will  be  modified  by  the  supreme  court  in  that 
particular,  and  then  be  permitted  to  stand  at 
appellant's  cost.  Where  the  supreme  court  modi 
fies  the  judijment  below  for  an  apparent  error, 
which  appellant  might  have  had  corrected  below 
by  specific  motion,  respondent  will  not  be  taxed 
with  costs.  Cassin  v.  Marshall,  18  Cal.  689 
Tyron   v.   Sutton,    13    Cal.   491.      Judgment   being 


1189 


KEFEKEE's  fees COSTS  AS  CONDITION — EXECUTORS.       §§  1028-1031 


affirmed  in  part  and  reversed  in  part,  the  re- 
gpondent  was  alUiwed  his  costs  in  the  court 
below,  but  made  to  pay  the  costs  of  the  appeal. 
Cole  V.  Swanstun,  1  ciil.  51;  .52  Am.  Dec.  288. 
The  costs  upon  appeal  are,  properly,  the  costs 
in  this  court,  and  the  cost  of  making  up  the 
appeal  in  the  court  below,  including  the  cost 
of  making  out  the  transcript.  The  costs  of  the 
former  trial  are  not  included,  but  abide  the 
event  of  the  suit.  Gray  v.  Gray,  H  Cal.  341. 
Where  a  judgment  of  the  court  was  incorrect 
in  part,  and  its  judgment  accordingly  modified, 
the  appellants  recover  the  costs  of  their  appeal. 
Welch  V.  Sullivan,  8  Cal.  512.  The  person  who 
is  responsible  for  the  erroneous  proceedings, 
after  the  remittitur  was  sent  down  from  the 
supreme  court,  must  pay  the  costs  of  those  pro- 
ceedings, and  the  costs  consequent  on  a  second 
appeal  caused  by  them.  Argenti  v.  San  Fran- 
cisco, 30  Cal.  458.  When  the  case  is  remanded 
by  the  supreme  court  for  further  proceedings, 
and    costs    are    awarded    in    general    terms,    the 


costs  awarded  include  only  the  costs  made  on 
the  appeal  to  the  supreme  court.  The  costs  of 
the  former  trial  are  not  included,  but  abide 
the  event  of  the  suit.  E.x  parte  Burrill,  24  Cal. 
350;  Gray  v.  Gray,  11  Cal.  341.  If  the  printed 
transcript  in  the  supreme  court  is  unnecessarily 
long,  the  party  who  is  to  blame  for  this  will  be 
adjudged  to  pay  the  costs  of  printing  thus  un- 
necessarily incurred,  or  a  share  thereof.  People 
V.  Holden,  28  Cal.  129.  Action  in  which  each 
party  made  to  pay  his  own  costs  on  appeal. 
See  Bradbury  v.  Barnes,  19  Cal.  120.  In  which 
costs  of  motion  in  supreme  court  not  allowed. 
Swain  v.  Naglee,  19  Cal.  127.  In  which  appel- 
lant paid  costs  in  supremo  court.  .Jungerman 
V.  Bovee,  19  Cal.  354.  In  which  appellant  made 
to  pay  costs,  although  the  judgment  is  reversed. 
Kenifr  v.  The  Cynthia,  18  Cal.  669.  .Tudgment 
affirmed  as  to  a  mandamus,  but  reversed  as  to 
costs.  McDougal  v.  Roman,  2  Cal.  80.  Costs 
on  partial  success.  See  Brooks  v.  Calderwood, 
34  Cal.  563. 


§  1028.  Referee's  fees.  The  fees  of  referees  are  five  dollars  to  each  for 
every  day  spent  in  the  business  of  the  reference ;  but  the  parties  may  atrree, 
in  writing,  upon  any  other  rate  of  compensation,  and  thereupon  such  rates 
shall  be  allowed. 

Reference,  generally.    Ante,  §§  638-645.  Discretion    of    court.     The    court    has    a 

Vlf'  partition,     compensation     of.      Ante,  ^i^^e  discretion  in  fixing  the  compensation 

§§  768,  796.  of  a  referee,  and  is  not  restricted  to   the 

2.  In  probate.    Post,  §  1508.  allowance    of   five    dollars   per   day.     Mes- 

Legislation  §  1028.     Enacted  March  11,  1S73  nager  V.  De  Leouis,  140  Cal.  402;   73  Pac. 

(based    on    Practice    Act,     §     504),    substituting  1052 

"are"  for  "shall  be"  before  "five."  *" 

§  1029.  Continuance,  costs  may  be  imposed  as  condition  of.  When  an 
application  is  made  to  a  court  or  referee  to  postpone  a  trial,  the  payment 
of  costs  occasioned  by  the  postponement  may  be  imposed,  in  the  discretion 
of  the  court  or  referee,  as  a  condition  of  granting  the  same. 

Postponement,  generally.    Ante,  §§  595,   596.  What  COStS  may  be  imposed.      The  court 

has  a  right  to  impose  costs,  other  than 
those  properly  taxable,  as  a  condition  for 
postponing  the  trial,  and  to  proceed  there- 
with upon  the  refusal  of  the  party  apply- 
ing for  the  postponement  to  comply  there- 
with. Pomeroy  v.  Bell,  118  Cal.  636;  50 
Pac.  683. 

Imposition  of  terms   on   granting  continuance. 
See  note  Ann.  Cas.  1913A,  308. 


Legislation  g  1029.  Enacted  March  11,  1873, 
in  the  exact  language  of  Practice  Act,  §  505,  as 
amended  by  Stats.  1855,  p.  251. 

Discretion  of  court.  The  imposition  of 
costs  upon  granting  a  continuance  on  ac- 
count of  the  sudden  illness  of  the  attorney 
of  the  party  making  the  request,  is  not 
an  abuse  of  discretion.  Eltzroth  v.  Eyan, 
91  Cal.  584;  27  Pac.  932. 

§  1030.  Costs  when  a  tender  is  made  before  suit  brought.  When,  in  an 
action  for  the  recovery  of  money  only,  the  defendant  alleges  in  his  answer 
that  before  the  commencement  of  the  action  he  tendered  to  the  plaintiff  the 
full  amount  to  which  he  was  entitled,  and  thereupon  deposits  in  court,  for 
plaintiff,  the  amount  so  tendered,  and  the  allegation  be  found  to  be  true, 
the  plaintiff  cannot  recover  costs,  but  must  pay  costs  to  the  defendant. 


Tender.     Post,  §  2076. 

Offer  to  compromise.    Ante,  §  997. 

Legislation  §  1030.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §  506),  (1)  omitting 
"the"  before  "plaintiff."  in  first  instance,  and 
(2)  substituting  (a)  "cannot"  for  "shall  not" 
before  "recover,"  and  (b)  "must"  for  "shall" 
before  "pay." 

CODE  COMMISSIONERS'  NOTE.  If  tender 
was  made  of  the  amount  due  before  action  and 
kept  good  during  action,  the  judgment  should 
be   for  plaintiff,   but   the  defendant   is   entitled   to 


costs.  Curiae  v.  Abadie,  25  Cal.  502.  Defend- 
ant must  not  only  plead  tender  before  the  suit 
brought,  but  that  he  has  always  been  and  now 
is  ready  and  willing  to  pay  the  same,  and  the 
money  should  be  brought  into  court.  Bryan  v. 
Maume,  28  Cal.  239.  The  tender  can  be  made 
only  by  a  party  in  interest.  See  Mahler  v.  New- 
baur,  32  Cal.  168;  91  Am.  Dec.  571.  On  the 
subject  of  tender  generally,  see  Civ.  Code, 
§§  1485—1505,  and  notes.  The  rules  heretofore 
existing,  as  to  the  effect  of  offer  of  perform- 
ance, are  somewhat  modified,  and  in  many  re- 
spects altogethor  changed. 


§  1031.     Costs  in  action  by  or  against  an  administrator,   etc.     In   an 

action  prosecuted   or   defended   by    an   executor,    administrator,   trustee    of 


§§1032,1033 


COSTS, 


1190 


jased  on   Practice  Act,   §   507    (New  York 
317),  substituting  (1)  "must"  for  "shall. 


express  trust,  or  a  person  expressly  authorized  by  statute,  costs  may  be  re- 
covered as  in  action  by  and  against  a  person  prosecuting  or  defending  in 
his  own  right;  but  such  costs  must,  by  the  judgment,  be  made  chargeable 
only  upon  the  estate,  fund,  or  party  represented,  unless  the  court  directs 
the  same  to  be  paid  by  the  plaintiff  or  defendant,  personally,  for  misman- 
agement or  bad  faith  in  the  action  or  defense. 

probate  court.  Meyer  v.  O'Eourke,  150 
Cal.  177;  88  Pac.  706.  When  a  judgment 
is  rendered  against  an  executor  for  costs, 
but  such  costs  are  not  made  chargeable 
against  the  estate,  it  amounts  to  a  per- 
sonal .judgment  against  the  executor,  which 
may  be  enforced  by  execution.  Stevens  v. 
San  Francisco  etc.  R.  R.  Co.,  103  Cal.  252; 
37  Pac.  146.  Where  an  action  to  quiet 
title  against  an  executor  is  contested  by 
him,  and  judgment  is  for  the  plaintiff,  the 
court  has  a  discretion  to  award  costs 
against  the  executor  personally,  though 
there  was  no  finding  of  mismanagement  or 
bad  faith;  and  he  cannot,  upon  appeal, 
have  them  removed  from  his  individual 
shoulders  and  cast  upon  the  estate  he  rep- 
resents. Meyer  v.  O'Rourke,  150  Cal.  177; 
88  Pac.  706. 

Effect  of  waiver  as  against  executor. 
The  fact  that  the  plaintiffs,  at  the  hearing 
of  the  motion  for  a  change  of  venue, 
waived  their  claim  for  costs  against  the 
executors  personally,  and  agreed  to  look 
to  the  estate  alone  for  them,  does  not 
affect  the  right  of  the  executors  to  a 
change  of  venue  to  the  county  of  their 
residence.  Thompson  v.  Wood,  115  Cal. 
301;  47  Pac.  50. 


Costs   against  executor,  etc.     Post,  §  1509. 

1/egislation  §  1031.  1.  Enacted  March  11, 
1873;  ba 

Code,   §   31     .  .  .. 

and   (2)    "directs"  for  "shall  direct." 

2.  Amendment  by  Stats.  1901,  p.  180;  un- 
constitutional.    See  note  ante,  §  5. 

Construction  of  section.  This  section 
does  not  forbid  the  taxation  of  a  memo- 
randum of  costs  against  an  executor,  in 
an  action  prosecuted  or  defended  by  him, 
but  merely  provides  that  such  costs  must, 
by  the  judgment,  be  made  chargeable  only 
upon  the  estate,  unless  the  court  directs 
the  same  to  be  paid  by  the  executor.  Reay 
V.  Butler,  99  Cal.  477;  33  Pac.  1134.  When 
a  judgment  for  costs  should  be  against  an 
administrator,  and  when  it  should  be 
"made  chargeable  only  upon  the  estate," 
are  questions  about  which  this  section  and 
§  1509,  post,  are  somewhat  conflicting. 
Leonis  v.  Leffingwell,  126  Cal.  369;  58  Pac. 
940. 

No  conflict  between  this  section  and 
§  1509,  post.    See  note  post,  §  1509. 

Costs  against  trust  property.  Where  an 
action  was  brought  by  the  plaintiff  as  trus- 
tee of  an  express  trust,  and  there  was 
no  charge  of  bad  faith  or  mismanagement 
on  his  part,  costs  are  chargeable  only 
against  the  trust  property.  Sterling  v. 
Gregory,  149  Cal.  117;  85  Pac.  305. 

Against  executor.  In  the  absence  of  a 
special  statute  as  to  costs  against  an  ex- 
ecutor, they  should  be  imposed  upon  him 
individually,  leaving  him  to  seek  an  al- 
lowance   for    payment    thereof    from    the 

§  1032.  Costs  in  a  review  other  than  by  appeal.  When  the  decision  of  a 
court  of  inferior  jurisdiction  in  a  special  proceeding  is  brought  before  a 
court  of  higher  jurisdiction  for  a  review,  in  any  other  way  than  by  appeal, 
the  same  costs  must  be  allowed  as  in  cases  on  appeal,  and  may  be  collected 
by  execution,  or  in  such  manner  as  the  court  may  direct,  according  to  the 
nature  of  the  case. 

Special  proceedings,  generally.  Post,  §§  1063— 
1821. 

Costs  on  appeal.    Ante,  §  1027;  post,  §  1034. 

Legislation  §  1032.  Enacted  March  11,  18T3 
(based  on  Practice  Act,  §  508),  substituting 
"must"  for  "shall." 

§  1033.  Filing  of  and  affidavit  to  bill  of  costs.  The  party  in  whose  favor 
the  judgment  is  rendered,  and  who  claims  his  costs,  must  deliver  to  the 
clerk,  and  serve  upon  the  adverse  partj^,  within  five  days  after  the  verdict, 
or  notice  of  the  decision  of  the  court  or  referee,  or,  if  the  entry  of  the  judg- 
ment on  the  verdict  or  decision  be  stayed,  then,  before  such  entry  is  made, 
a  memorandum  of  the  items  of  his  costs  and  necessary  disbursements  in  the 


CODE  COMMISSIONERS'  NOTE.  Executors 
and  administrators  are  individually  responsible 
for  costs  recovered  against  them;  but  they  must 
not  be  reimbursed  for  such  costs  in  their  admin- 
istration accounts,  unless  it  appears  that  the 
action  has  been  prosecuted  or  resisted  without 
just  cause.    Hicox  v.  Graham,  6  Cal.  169. 


CODE    COMMISSIONERS'  NOTE.      It   will  be 

observed  that  §  509  of  the  old  Practice  Act 
has  been  omitted.  This  was  intentional,  and 
the  tax  heretofore  known  as  the  court  tax  is  no 
longer  a  cost  charge. 


1191 


FILING  COST-BILL — FAILURE  TO  FILE. 


§  1033 


action  or  proceeding,  which  memorandum  must  be  verified  by  the  oath  of 
the  party,  or  his  attorney  or  a.iijent,  or  by  the  clerk  of  his  attorney,  statin? 
that  to  the  best  of  his  knowledge  and  belief  the  items  are  correct,  and  that 
the  disbursements  have  been  necessarily  incurred  in  the  action  or  proceed- 
insc.  A  party  dissatisfied  Avith  the  costs  claimed  may,  within  five  days  after 
notice  of  filinj;  of  the  bill  of  costs,  file  a  motion  to  have  the  same  taxed  by 
the  court  in  which  the  judgment  was  rendered,  or  by  the  judge  thereof  at 
chambers.  By  the  decision  of  the  court,  or  referee,  herein  referred  to,  is 
meant  the  signing  and  filing  of  the  findings  of  fact  and  conclusions  of  law. 

Repeal  of  statute.  The  act  of  1871-72, 
providing  that  the  party  demanding  a  jury 
shall  pay  the  fees  thereof,  in  case  they 
shall  be  discharged  without  finding  a  ver- 
dict, but  that  such  fees  may  be  recovered 
as  costs  on  his  obtaining  a  judgment  after- 
wards, and  that  no  further  proceedings 
shall  be  allowed  until  the  fees  are  paid, 
was  not  repealed  on  the  adoption  of  the 
codes.  Carpenter  v.  Jones,  121  Cal.  362; 
53Pae.  842. 

Time  of  filing  cost-bill.  In  an  action 
at  law,  a  cost-bill  should  be  filed  within 
five  days  after  the  verdict,  unless  the 
entry  of  judgment  thereon  was  stayed,  or 
the  case  was  reserved  for  argument  upon 
briefs,  in  which  case,  if  filed  prior  to  the 
entry  of  the  judgment,  it  would  be  in 
time.  Bedolla  v.  Williams,  15  Cal.  App. 
738;  115  Pac.  747.  A  ruling  of  the  trial 
court,  granting  a  motion  for  a  nonsuit  on 
the  contest  of  a  will,  is  not  the  judgment 
of  the  court,  and  the  proponents'  cost-bill 
is  filed  in  time  if  filed  within  five  days 
after  the  judge  signed  the  draft  of  the 
form  of  the  judgment,  which  was  after- 
wards entered  in  the  minute-book.  Estate 
of  Purcell,  164  Cal.  300;  128  Pac.  932. 
Where  a  cost-bill  and  the  judgment  are 
filed  on  the  same  day,  it  must  be  pre- 
sumed that  the  filing  of  the  cost-bill  pre- 
ceded the  entry  of  the  judgment.  Bedolla 
v.  Williams,  15  Cal.  App.  738;  115  Pac. 
747.  Where  the  entry  of  judgment  is 
stayed,  a  memorandum  of  costs  may  be 
filed  at  any  time  before  such  entry  is 
made.  Taylor  v.  McConigle,  120  Cal.  123; 
52  Pac.  159. 

Extension  of  time.  An  extension  of 
time  to  file  a  cost-bill  may  be  granted  by 
the  trial  judge.  Beilby  v.  Superior  Court, 
138  Cal.  si;  70  Pac.  1024. 

Failure  to  file.  The  recovery  of  costs 
is  a  matter  regulated  exclusively  by  stat- 
ute, and  the  mode  pointed  out  for  that 
purpose  must  be  strictly  pursued.  Chapiu 
v.  Broder,  16  Cal.  403.  The  omission  from 
this  section  of  that  clause  of  the  original 
§  510  of  the  Practice  Act,  which  provided 
that  a  failure  by  the  prevailing  party  to 
file  his  memorandum  of  costs  within  the 
time  limited  should  be  deemed  a  waiver 
of  his  costs,  is  not  a  material  defect;  the 
code  contemplates  that  such  shall  be  the 
result,  since  the  only  costs  the  clerk  is 
authorized  to   insert  in  the  judgment  are 


Legislation  §  1033.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act,  §  510,  as  amended 
by  Stats.  1855,  p.  251,  which  read  :  "The  party  in 
■whose  favor  judgment  is  rendered,  and  who  claims 
his  costs,  shall  deliver  to  the  clerk  of  the  court, 
within  two  days  after  the  verdict  or  decision  of 
the  court,  a  memorandum  of  the  items  of  his 
costs  and  necessary  disbursements  in  the  action 
or  proceeding;  which  memorandum  shall  be  veri- 
fied by  the  oath  of  the  party,  or  his  attorney, 
stating  that  the  items  are  correct,  and  that  the 
disbursements  have  been  necessarily  incurred  in 
the  action  or  proceeding."  When  §  1033  was  en- 
acted in  1872,  "must"  was  substituted  for  "shall," 
in  both  instances. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  343. 
to  read  as  at  present,  except  for  the  amendment 
of  1899. 

3.  Amended  by  Stats.  1899,  p.  22,  adding 
the  last  sentence. 

4.  Amendment  by  Stats.  1901,  p.  181;  un- 
constitutional.   See  note  ante,  §  5. 

Construction  of  section.  The  provisions 
of  this  section  are  not  intended  to  be 
directory;  no  right  is  created,  apart  from 
the  remedy  provided  for  its  enforcement, 
and  in  respect  to  this  remedy,  there  is 
no  room  for  construction;  and  failure  to 
comply  with  the  provisions  of  the  section 
not  only  extinguishes  the  remedy,  but  for- 
feits the  right  itself.  Chapin  v.  Broder,  16 
Cal.  403.  The  object  of  this  section  is  to 
give  the  prevailing  party,  who  claims 
costs,  five  days  after  he  has  knowledge 
of  the  verdict  or  decision  in  which  to  serve 
and  file  his  memorandum;  should  he  have 
knowledge  of  such  decision,  it  would  be 
an  idle  act  to  require  the  service  of 
notice  of  that  fact;  and  where  such  party 
gives  notice  of  the  decision  to  the  opposite 
party  for  the  purpose  of  starting  the  time 
within  which  the  motion  for  a  new  trial 
can  be  made,  he  must  be  held  to  have  had 
notice  of  the  decision,  and  to  have  waived 
any  formal  notice  thereof.  O'Neil  v.  Dona- 
hue, 57  Cal.  226.  This  section  is  not  to  be 
construed  literally,  so  as  to  subvert  the 
settled  practice  of  serving  and  filing  a 
written  notice  of  the  motion  to  tax  the 
costs,  specifying  the  objections  to  the  cost- 
bill,  and  the  time  when  the  application  to 
the  court  or  judge  will  be  made  to  correct 
or  strike  it  out:  such  practice  is  a 
substantial  compliance  with  the  statute. 
Carpy  v.  Dowdell,  129  Cal.  244;  61  Pac. 
1126.  This  section  must  be  invoked  in 
aid  of  §  1034,  post,  to  prevent  the  latter 
section  from  being  Unconstitutional,  as 
allowing  property  to  be  taken  without 
notice  or  an  opportunity  to  be  heard.  Bell 
V.  Superior  Court,  150  Cal.  31;  87  Pac. 
103L 


1033 


COSTS. 


1192 


those  claimed,  and  "taxed  or  ascertained," 
in  the  manner  provided.  Eiddell  v.  Har- 
rell,  71  Cal.  254;  12  Pac.  67;  and  see 
Chapin  v.  Broder.  16  Cal.  403.  Conced- 
ing, without  deciding,  that  relief  can  be 
granted  for  inadvertence  or  excusable 
neglect  in  failing  to  file  a  cost-bill  in  time, 
under  §  473,  ante,  such  relief  will  not  be 
granted  upon  an  affidavit  showing  mere 
forgetfulness  to  file  it  in  time,  owing  to 
press  of  other  business.  Dow  v.  Boss,  90 
Cal.  562;  27  Pac.  409;  Galindo  v.  Koach, 
130  Cal.  3S9;  62  Pac.  597.  A  judgment 
for  costs,  entered  by  the  clerk,  in  the  ab-  ' 
sence  of  the  filing  or  service  of  a  memo- 
randum of  costs,  is  without  jurisdiction, 
and  void;  and  a  party  failing  to  file  his 
memorandum  waives  all  claim  for  costs. 
Riddell  v.  Harrell,  71  Cal.  254;  12  Pac. 
67;  and  see  Chapin  v.  Broder,  16  Cal.  403. 

Waiver  of  notice.  The  right  to  written 
notice  of  the  actual  time  of  the  filing  of 
a  cost-bill  may  be  waived.  Bell  v.  Thomp- 
son, S  Cal.  App.  483;  97  Pac.  158. 

"Who  may  verify.  An  attorney  who  veri- 
fies the  memorandum  need  not  be  the  at- 
torney of  record,  but  it  is  sufficient  if  he 
was  employed  to  assist  in  the  case:  any 
one  who  has  knowledge  of  the  facts  may 
verify  the  memorandum.  Yorba  v.  Dobner, 
90  Cal.  337;  27  Pac.  185;  and  see  Burnham 
V.  Hayes,  3  Cal.  115;  58  Am.  Dec.  389. 

Striking  out  cost-bill.  Where  a  party, 
entitled  to  costs,  neglects  to  serve  and 
file  his  memorandum  thereof  until  more 
than  five  days  have  elapsed  after  he  has 
knowledge  of  the  decision  of  the  court, 
though  no  written  notice  of  it  has  been 
served  upon  him,  the  filing  is  too  late,  and 
the  costs  will  be  stricken  out  on  motion. 
Dow  V.  Ross,  90  Cal.  562;  27  Pac.  409; 
and  see  Mallory  v.  See,  129  Cal.  356;  61 
Pac.  1123.  Although  the  allowance  or  dis- 
allowance of  items  of  costs  incurred  upon 
the  trial  of  an  action  must  be  left,  in 
nearly  every  case,  to  the  discretion  of  the 
trial  court,  and  the  memorandum  of  costs, 
when  properly  verified,  should,  unless  con- 
troverted, control  the  decision  of  the  court, 
where  the  charges  appear  on  their  face  to 
be  for  proper  and  necessary  disbursements, 
yet,  where  any  charges  do  not  so  appear, 
the  burden  of  proof  is  on  the  party  claim- 
ing the  costs,  and,  in  the  absence  of 
evidence  justifying  and  sustaining  the 
charges,  they  should  be  stricken  out  on 
motion.  Miller  v.  Highland  Ditch  Co.,  91 
Cal.  3  03;  27  Pac.  536';  Barnhart  v.  Kron, 
88  Cal.  447;  26  Pac.  210.  A  cost-bill  filed 
before  the  filing  of  the  findings  and  the 
entry  of  judgment  is  premature,  and  will 
be  stricken  out  on  motion.  Sellick  v.  De 
Carlow,  95  Cal.  644;  30  Pac.  795.  A  mo- 
tion to  strike  out  a  cost-bill  will  be  denied, 
where  it  was  filed  in  time,  and  there  is  no 
tenable  objection  to  it.  Bedolla  v.  Wil- 
liams, 15  Cal.  App.  738;  115  Pac.  747. 

Amendment.  After  the  expiration  of 
the  time  limited  by  this  section  for  serving 


and  filing  a  memorandum  of  costs,  an 
amendment  of  such  memorandum  cannot 
be  had  so  as  to  insert  additional  items  of 
disbursement;  nor  can  a  judgment  for  such 
additional  items  be  rendered,  in  the  ab- 
sence of  a  showing  that  the  omission  was 
excusable  on  some  of  the  grounds  men- 
tioned in  §  473,  ante.  Galindo  v.  Eoach, 
130  Cal.  389;  62  Pac.  597.  An  order  allow- 
ing an  amendment  to  a  cost-bill,  made 
after  the  time  had  passed  for  filing  a  cost- 
bill  but  in  furtherance  of  justice,  and 
where  notice  of  such  order  was  had  and 
no  objection  made,  is  effective.  Legg  & 
Shaw  Co.  V.  Worthington,  157  Cal.  488; 
108  Pac.  284. 

Motion  to  tax  costs.  The  time  of  notice 
of  the  hearing  of  a  motion  to  retax  costs 
may,  under  §  1005,  ante,  be  shortened  by 
the  court.  Furtinata  v.  Butterfield,  14  Cal. 
App.  25;  110  Pac.  962.  The  universal 
practice  has  been  to  serve  and  file  written 
notice  of  the  motion  to  tax  the  cost-bill 
as  the  equivalent  of  filing  a  motion  within 
five  days,  and  on  the  day  designated  in 
the  notice,  or  on  the  day  to  which  the 
hearing  should  have  been  postponed,  to 
call  up  the  notice  and  make  the  motion 
viva  voce,  a  note  of  the  motion  being 
made  by  the  clerk  in  his  minutes:  this, 
practice  is  a  sufficient  compliance  with 
the  statute.  Kishlar  v.  Southern  Pacific 
R.  R.  Co.,  134  Cal.  636;  66  Pac.  848.  A 
filed  motion  to  retax  costs  need  not  be 
served.  Furtinata  v.  Butterfield,  14  Cal. 
App.  25;  110  Pac.  962. 

Motion  to  tax  or  retax  costs.  It  is  suffi- 
cient, in  the  notice  of  a  motion  to  have 
the  costs  taxed  by  the  court,  to  specify 
certain  items  of  costs  in  the  cost-bill  as 
objected  to,  and  to  state  that  they  are  not 
legally  chargeable  as  costs,  and  were  not 
necessary  disbursements  in  the  action;  it 
is  not  necessary  that  any  affidavit  shall 
accompany  the  notice,  this  section  does 
not  specify  what  the  motion  must  contain, 
nor  upon  what  kind  of  evidence  it  shall 
be  heard,  but,  upon  the  hearing  of  the 
motion,  any  competent  evidence,  oral  or 
written,  may  be  presented  to  the  court. 
Senior  v.  Anderson,  130  Cal.  290;  62  Pac. 
563;  Lomita  Land  etc.  Co.  v.  Robinson,  154 
Cal.  36;  18  L.  R.  A.  (N.  S.)  1106;  97  Pac.  10. 

Necessity  of  including  items  in  cost-biU. 
The  fees  of  the  officers  of  the  court  must 
be  claimed  in  the  memorandum  of  costs; 
and,  in  the  absence  of  such  memorandum, 
the  clerk  has  no  authority  to  insert  such 
fees  in  the  judgment.  Chapin  v.  Broder,  16 
Cal.  403.  Counsel  fees  allowed  in  an  ac- 
tion of  slander,  in  addition  to  the  other 
costs,  must  be  included  in  the  cost-bill  as 
filed,  or  they  are  waived.  McKiuuey  v. 
Egberts,  2  Cal.  Unrep.  532;  8  Pac.  3. 

Costs  allowed  by  referee,  but  not  by 
court.  Costs  allowed  by  a  referee  against 
a  garnishee,  but  not  allowed  in  the  order 
of  court  confirming  the  report,  cannot  be 
collected   in    an   action    on   the   judgment. 


1193 


WITNESS   FEES — BRIEFS — LIEN    STATEMENTS. 


§1033 


Bronzan  v.  Drobaz,  93   Cal.   647:   29  Pac. 

254. 

Costs  relating  to  common  fund.  Costs 
may  be  allowed  iu  a  suit  in  equit}',  for 
the  iirescrvation  or  distribution  of  a  fund, 
■where  all  the  parties  have  a  common  in- 
terest. Hays  V.  Windsor,  130  Cal.  230;  62 
Pac.  39.'). 

Witness  fees.  The  payment  of  a  fee  to 
a  witness,  who  attends  by  request,  though 
not  served  with  a  subj)a>na,  is  a  necessary 
disbursement,  as  much  so  as  when  paid  to 
a  witness  who  has  l)ecn  subpcnnaed.  Lin- 
forth  V.  San  Francisco  Gas  etc.  Co.,  9  Cal. 
App.  434;  99  Pac.  716.  Fees  of  witnesses 
subpoenaed  in  good  faith,  but  not  sworn 
on  the  trial,  may  be  allowed  as  costs:  it 
may  have  been  that  their  testimony  be- 
came unnecessary  by  reason  of  a  modifica- 
tion of  the  pleadings,  or  the  exclusion  by 
the  court  of  the  testimony  offered.  Ran- 
dall V.  Falkner,  41  Cal/  242.  A  party  in 
■whose  favor  judgment  is  rendered,  -who 
voluntarily  attends  the  trial  without  being 
subpoenaed  by  the  opposite  party,  and 
■while  there  is  called  as  a  ■witness  by  the 
latter,  is  not  entitled  to  ■witness  fees  or 
mileage.  Beal  v.  Stevens,  72  Cal.  451;  14 
Pac.  186.  The  fees  of  ■witnesses  who  re- 
fused to  receive  the  same  cannot  be  al- 
lowed as  costs;  nor  can  any  charge  be 
made  in  the  cost-bill  for  filing  the  same. 
Linforth  v.  San  Francisco  Gas  etc.  Co.,  9 
Cal.  App.  434;  99  Pac.  716.  The  right  to 
witness  fees  is  statutory,  and  a  party  is 
required  to  pay  only  those  fees  which  are 
authorized.  Naylor  v.  Adams,  15  Cal.  App. 
353;  114  Pac.  997.  The  statute  fixes  the 
fees  of  witnesses;  and  the  allowance  of 
a  further  sum  to  a  physician,  who  testi- 
fied as  an  expert,  cannot  be  allowed  to  an 
administrator.  Estate  of  Levinson,  108 
Cal.  450;  41  Pac.  483.  An  expert  witness, 
rot  called  by  the  court  nor  by  agreement 
of  the  parties,  may  be  allowed  the  usual 
fees  for  attendance,  where  he  is  in  attend- 
ance, but  not  for  his  services  as  an  expert. 
Linforth  v.  San  Francisco  Gas  etc.  Co.,  9 
Cal.  App.  434;  99  Pac.  716.  Expert  wit- 
nesses should  be  allowed  only  the  usual 
fees  for  daily  attendance  and  mileage  as 
witnesses,  and  the  costs  allowed  cannot 
properly  include  their  pay  as  experts,  nor 
the  expenses  incurred  by  them  in  making 
surveys  or  preparing  maps,  not  ordered  by 
the  court.  Bathgate  v.  Irvine,  120  Cal. 
135;  77  Am.  St.  Rep.  158;  58  Pac.  442. 
The  power  of  the  .judge  to  order  payment 
of  witness  fees  must  be  given  by  a  statute 
uniform  throughout  the  state.  Turner  v. 
Siskiyou  County,  109  Cal.  332;  42  Pac.  434. 

Depositions.  Where  depositions  are 
necessary,  the  costs  of  taking  them  may 
be  allowed  (Lomita  Land  etc.  Co.  v.  Rob- 
inson, 154  Cal.  36;  18  L.  R.  A.  (N.  S.) 
1106;  97  Pac.  10),  and  are  properly  in- 
cluded in  the  cost-bill  of  the  party  taking 
them.  California  etc.  Co.  v.  Schiappa- 
Pietra,    151    Cal.    732;    91   Pac.    593.     The 


cost  of  taking  depositions  forms  no  part 
of  the  damages  in  an  action  for  conver- 
sion, and  should  be  determined  in  the 
cost-bill.  Xicholls  v.  Mapes,  1  Cal.  App. 
349;  82  Pac.  265. 

T-anscrlpt  of  testimony,  and  copies  of 
papers.  Items  of  costs  paid  without  con- 
sent of  the  parties  or  by  onlcr  of  the  court, 
for  a  transcript  of  the  reporter's  notes  and 
for  copies  of  excluded  papers  withdrawn, 
are  improper,  and  should  be  rejected  upon 
taxation  of  costs.  Senior  v.  Anderson,  130 
Cal.  290;  62  Pac.  563.  Where  the  tran- 
script of  the  testimony  was  written  up 
under  a  previous  order  of  the  court,  direct- 
ing that  the  expense  be  borne  equally  by 
both  sides,  the  prevailing  party  is  entitled 
to  include  the  amount  paid  by  him  for 
such  expense  as  part  of  the  costs  in  the 
case.  Bell  v.  Pleasant,  145  Cal.  410;  104 
Am.  St.  Rep.  61;  78  Pac.  957.  An  item  of 
costs,  paid  for  copies  of  numerous  papers, 
which  were  not  offered  in  evidence,  and 
the  need  of  which  was  not  explained,  nor 
shown  to  have  been  reasonably  appre- 
hended, should  be  stricken  out.  Senior  v. 
Anderson,  130  Cal.  290;  62  Pac.  563. 

Printing  of  briefs.  The  printing  of 
briefs  to  be  used  upon  appeal  cannot  be 
taxed  either  as  costs  or  as  disbursements. 
Bond  v.  United  Railroads,  20  Cal.  App. 
124;  128  Pac.  786;  Blair  v.  Brownstone  Oil 
etc.  Co.,  20  Cal.  App.  316;  128  Pac.  1022. 
An  item  of  costs  charged  for  "printing 
points"  does  not  represent  an  obligation 
of  the  defendant,  and  the  plaintiff  is  not 
authorized  to  include  it  in  the  bill  for  the 
amount  due.  Hiberuia  Sav.  &  L.  Soc.  v. 
Behnke,  121  Cal.  339;  53  Pac.  812. 

Expense  of  filing  mechanic's  lien.  The 
expense  of  filing  mechanics'  liens  is  prop- 
erly included  as  part  of  the  costs  and  dis- 
bursements, upon  foreclosure  thereof. 
Builders'  Supplv  Depot  v.  O'Connor,  150 
Cal.  265;  119  Am.  St.  Rep.  193;  11  Ann. 
Cas.  712;  17  L.  R.  A.  (N.  S.)  909;  88  Pac. 
982. 

Premium  on  bond.  The  charge  of  a 
surety  company  for  a  replevin  bond  is  not 
a  proper  item  in  a  cost-bill.  Williams  v. 
Atchison  etc.  Ry.  Co.,  156  Cal.  140;  134 
Am.  St.  Rep.  117;  19  Ann.  Cas.  1260;  103 
Pac.  885. 

Insurance-money,  Insurance-money,  paid 
by  a  sheriff  on  attached  property,  is  not 
a  projier  item  of  costs.  Galindo  v.  Roach, 
130  Cal.  389;  62  Pac.  597. 

Including  costs  in  judgment.  No  dis- 
tinction is  made  between  the  fees  of  offi- 
cers of  the  court  and  other  expenses,  and 
disbursements  of  every  character  are 
placed  upon  the  same  footing;  a  party 
entitled  to  costs  is  required  to  claim  them 
in  a  particular  manner,  and  when  prop- 
erly claimed,  it  is  the  duty  of  the  clerk 
to  include  them  in  the  judgment,  but, 
until  they  are  so  claimed,  he  is  not  vested 
with  any  authority  for  that  purpose. 
Chapin  v'.  Broder,  16  Cal.  403.     Where  the 


§1034 


COSTS. 


1194 


statute  provides  that  the  clerk  shall  in- 
clude the  costs  in  the  judgment,  he  has 
no  authority  to  insert  the  amount  of  the 
costs  in  the  judgment  at  some  subsequent 
time,  as  his  authority  terminates  with 
the  entry  of  the  judgment,  and  if,  by  mis- 
take or  otherwise,  the  costs  are  omitted, 
the  remedy  is  by  motion  to  amend  the 
judgment;  no  title  passes  to  the  purchaser 
of  land  sold  upon  execution  under  such 
a  judgment.  Emeric  v.  Alvarado,  64  Cal. 
529;  2  Pac.  418;  and  see  Chapin  v.  Broder, 
16  Cal.  403.  The  insertion  of  costs  in  the 
judgment  is  a  mere  ministerial  act  of  the 
clerk,  which  can  be  performed  only  in 
the  cases  where  the  statute  allows  it. 
Eiddell  v.  Harrell,  71  Cal.  254;  12  Pac.  67; 
Chapin  v.  Broder,  16  Cal.  403. 

Payment  of  costs  as  condition.  The 
payment  of  reporter's  fees,  where  a  jury 
has  been  discharged,  cannot  be  required  as 
a  condition  of  setting  the  cause  for  a  sec- 
ond trial.  Carpenter  v.  Jones,  121  Cal. 
362;  53  Pac.  842.  The  refusal  of  the  clerk 
to  indorse  any  filing  upon  the  decision 
and  judgment  until  after  the  filing  of  the 
cost-bill,  upon  the  alleged  ground  that  the 
calendar  fee  had  not  been  paid,  cannot 
prejudice  the  rights  of  the  party  tiling  the 
cost-bill.  Beck  v.  Pasadena  Lake  Vineyard 
etc.  Co.,  130  Cal.  50;  62  Pac.  219. 

Deposit  of  jury  fees.  The  court  may  re- 
quire the  party  demanding  a  jury  to  de- 
posit the  fees.  Bank  of  Lassen  County  v. 
Sherer,  108  Cal.  513;  41  Pac.  415. 

§  1034.  Costs  on  appeal,  how  claimed  and  recovered.  Whenever  costs 
are  awarded  to  a  party  by  an  appellate  court,  if  he  claims  such  costs,  he 
must,  within  thirty  days  after  the  remittitur  is  filed  with  the  clerk  below, 
deliver  to  such  clerk  a  memorandum  of  his  costs,  verified  as  prescribed  by 
the  preceding  section,  and  thereafter  he  may  have  an  execution  therefor  as 
upon  a  judgment. 

Cost-bill  filed  in  trial  court.  A  memo- 
randum of  the  costs  upon  appeal  is  not 
necessary  to  be  filed  in  the  supreme  court, 
upon  a  judgment  awarding  costs:  such 
costs  should  be  claimed  in  the  trial  court. 
Gray  v.  Gray,  11  Cal.  341.  The  memoran- 
dum of  costs  indorsed  on  the  remittitur 
by  the  clerk  of  the  supreme  court  should 
not  be  regarded  as  a  sufficient  memoran- 
dum of  costs;  and  if  the  prevailing  party 
intends  to  collect  the  fees  for  filing  tl;ie 
notice  of  appeal  and  the  expenses  of  pre- 
paring the  transcript  of  the  record,  these 
should  be  embodied  in  a  memorandum  of 
costs  and  filed  with  the  clerk  of  the  trial 
court,  at  the  time  of  filing  the  remittitur 
there,  or  withiu  the  time  thereafter  pre- 
scribed by  the  statute  in  other  cases.  Ez 
parte  Burrill,  24  Cal.  350. 

Costs,  where  land  involved  is  sold. 
Where  land  involved  in  actions  is  sold 
pending  appeal,  and  the  transferee  per- 
mits the  prosecution  of  the  action  to  be 
continued  in  the  name  of  the  original  par- 


Decision,  defined.  In  cases  where  a  non- 
suit is  granted,  the  "decision"  referred  to 
in  this  section  must  be  understood  to  mean 
a  judgment  entered  upon  a  motion.  Estato 
of  Purcell,  164  Cal.  300;  128  Pac.  932. 

CODE  COMMISSIONEBS'  NOTE.  This  sec- 
tion has  been  held  not  to  apply  to  costs  on  ap- 
peal to  the  supreme  court.  Gray  v.  Gray,  11 
Cal.  341.  If  the  opposing  party  fail  to  file  his 
cost-bill,  or  to  give  notice  within  the  proper 
time,  the  vacation  of  the  judgment  is  not  on 
that  account  absolute.  Gregory  v.  Haynes,  21 
Cal.  443.  If  items  are  included  in  the  bill  of 
costs  vi'hich  are  not  properly  taxable,  the  party 
should  move  to  amend  or  retax  the  costs,  and  no 
just  grounds  are  afforded  for  refusing  to  issue 
an  execution  or  recalling  one.  Meeker  v.  Harris, 
23  Cal.  285.  If  the  original  bill  of  costs  is 
filed  within  the  time  prescribed,  an  amend- 
ment allowed  after  the  time  relates  back  to 
the  time  of  filing,  and  forms  a  part  of  the  origi- 
nal. An  affidavit  by  the  attorney  of  the  party 
accompanving  the  bill  of  costs  is  good.  Burnham 
V.  Hays,  3  Cal.  115;  58  Am.  Dec.  389.  A  memo- 
randum of  the  costs  should  be  filed  in  the  office 
of  the  clerk  of  the  court  below  at  the  time 
of  filing  the  remittitur  there,  or  within  the 
time  specified  by  the  statute  thereafter.  Ex 
parte  Burrill,  24  Cal.  350;  see  also  Eaton  v. 
Palmer,  11  Cal.  341.  The  court  cannot  add 
to  the  judgment  the  costs  of  the  prevailing  party 
after  the  time  for  filing  the  same  has  expired, 
and  after  an  appeal  has  been  perfected.  If  it 
does  so,  the  proper  and  only  remedy  is  by  an 
appeal  from  the  order.  Jones  v.  Frost,  28  Cal. 
245.  If  the  costs  on  appeal  are  not  entered 
on  the  judgment-docket  in  the  court  below,  they 
are  not  a  lien  on  property  until  the  levy  of  an 
execution.  Or  if  the  clerk's  and  sheriff's  fees 
were  inserted  in  the  judgment,  when  not  so 
claimed,  the  judgment  is  so  far  void,  and  may 
be  attacked  collaterally.  Chapin  v.  Broder,  16 
Cal.  403. 


Remittitur.    Ante,  §  958. 

Legislation  §  1034.  1.  Enacted  March  11, 
1872;  based  on  Practice  Act,  §  665,  as  amended 
by  Stats.  1854,  Redding  ed.  p.  73,  Kerr  ed.  p.  108, 
which  read:  "Whenever  costs  are  awarded  to  a 
party  by  an  appellant  [sicl  court,  such  party 
may  have  an  execution  for  the  same  on  filing  re- 
mittitur with  the  clerk  of  the  court  below;  and 
it  shall  be  the  duty  of  such  clerk,  whenever  the 
remittitur  is  filed,  to  issue  the  execution  upon  ap- 
plication therefor,  and  whenever  costs  are  awarded 
to  a  party  by  an  order  of  any  court,  such  party 
may  have  an  execution  therefor  in  like  manner  as 
upon  a  judgment." 

2.  Amendment  by  Stats.  1901,  p.  181;  un- 
constitutional.    See  note  ante,  §  5. 

Construction  of  section.  This  section, 
standing  alone,  would  be  unconstitutional, 
because  of  its  failure  to  provide  for  notice 
and  an  opportunity  for  the  adverse  party 
to  be  heard,  but  this  is  avoided  by  con- 
struing it  with  §  1033,  ante,  so  as  to  re- 
quire service  of  the  memorandum  of  costs 
upon  the  opposite  party,  and  an  oppor- 
tunity for  relaxation  before  execution  can 
properly  be  issued  thereupon.  Bell  v. 
Superior  Court,  150  Cal.  31;  87  Pac.  1031. 


1195 


EXECUTION  FOR  COSTS — JUDGMENT  AS  TO. 


§1034 


ties,  those  parties  may  recover  costs  of 
suit.  Crittenden  v.  San  Francisco  Savings 
Union,  157  Cal.  201 ;  107  Pac.  103. 

Transcript  of  evidence  as  costs.  The 
allowance  of  costs  on  ajipeal  includes,  in 
addition  to  the  costs  and  disbursements 
paid  and  incurred  up  to  the  entry  of  judg- 
ment, only  such  costs  and  disbursements 
as  the  appellant  was  put  to  by  reason  of 
the  taking  of  the  appeal;  therefore  tlie 
reporter's  transcript  of  the  evidence,  when 
not  ordered  by  the  court,  although  used  in 
preparing  the  record  on  appeal,  is  not  a 
proper  item  to  be  recovered  upon  the  re- 
versal of  the  judgment.  Bank  of  Woodland 
V.  Iliatt,  59  Cal.  580. 

Transcript  on  appeal.  The  appellant 
may  be  limited  in  his  recovery  of  costs  for 
the  transcript  on  appeal,  where  a  much 
briefer  record  would  have  been  sufficient. 
Estate  of  Pease,  149  Cal.  167;  85  Pac.  149. 
Where  an  appellant  includes  in  the  tran- 
script irrelevant  matter,  he  cannot  recover 
costs  for  procuring  or  printing  the  same. 
Sichel  V.  Carrillo,  42  Cal.  493.  The  cost 
of  printing  a  transcript  will  not  be  taxed 
against  the  respondent,  by  reason  of  hav- 
ing proposed  amendments  to  the  statement, 
by  incorporating  therein  the  greater  part 
of  the  evidence  in  the  case,  for  the  pur- 
pose of  showing  that  the  exclusion  of  the 
testimony  sought  to  be  stricken  out  would 
not  change  the  result.  Duffy  v.  Duffy,  104 
Cal.  602;  38  Pac.  443.  Where  a  judgment 
is  reversed,  additional  costs  will  not  be 
imposed  on  the  respondent  on  account  of 
his  inserting  in  the  transcript  a  large 
amount  of  unnecessary  matter,  as  by  the 
reversal  he  will  be  required  to  pay  the 
expense  of  printing  the  same.  Estate  of 
Eobinson,  106  Cal.  493;  39  Pac.  862. 

Costs  of  printing  briefs.  See  note  ante, 
§  1033. 

Execution  for  costs.  Where  costs  are 
awarded  by  the  judgment  of  the  appellate 
court,  the  clerk  of  the  trial  court,  upon  the 
going  down  of  the  remittitur,  must  attach 
it  to  the  judgment  roll,  and  enter  a  minute 
of  the  judgment  on  the  docket,  against  the 
original  entry;  the  judgment  thereafter 
stands  as  the  judgment  of  the  trial  court, 
and,  on  the  application  of  the  party  in 
whose  favor  it  is  given,  the  clerk  must 
issue  execution,  and  in  doing  so,  he  acts, 
not  by  authority  of  the  trial  court,  but 
of  the  appellate  court.  McMann  v.  Su- 
perior Court,  74  Cal.  106;  15  Pac.  448. 

Statute  of  limitations.  The  statute  of 
limitations,  as  to  costs  awarded  by  the 
appellate  court,  commences  to  run  from 
the  entrv  thereof  in  the  docket.  McMann 
V.  Superior  Court,  74  Cal.  106;  15  Pac.  448. 

Application  for  modification  of  judg- 
ment as  to  costs.  Where  a  party  desires 
a  modification  of  the  judgment  as  to  costs, 
the  proper  api>lication  therefor  should  be 
made  within  the  time  allowed  for  filing  a 


petition  for  a  rehearing.  Gray  v.  Gray,  11 
Cal.  341.  A  judgment  may  be  modifieil  as 
to  costs.  Petitj)ierre  v.  Maguire,  155  Cal. 
242;  100  Pac.  690. 

Costs  upon  reversal  or  modification. 
Upon  the  reversal  or  modification  of  a 
judgment  or  ortler  appealed  from,  without 
any  direction  as  to  the  costs  of  appeal, 
the  clerk  of  the  trial  court  should  enter 
upon  the  record,  and  insert  in  the  remit- 
titur, a  judgment  that  the  appellant  re- 
cover the  costs  of  appeal.  Crittenden  v, 
San  Francisco  Savings  Union,  157  Cal.  201; 
107  Pac.  103. 

Power  of  trial  court  after  case  is  re- 
manded. Where,  upon  appeal  from  the 
judgment  and  from  an  order  denying  a 
new  trial,  the  order  is  affirmed,  but  the 
cause  is  remanded,  with  directions  to  mod- 
ify the  judgment,  and  no  directions  con- 
cerning the  costs  of  appeal,  the  clerk  has 
no  authority  to  enter  upon  the  record,  or 
to  insert  in  the  remittitur  on  the  appeal 
from  the  order,  a  judgment  that  the  ap- 
pellant recover  the  costs  of  such  appeal; 
under  the  rules  of  the  supreme  court,  his 
power  is  limited  to  the  entry  of  judgment 
for  costs  only  on  the  appeal  from  the 
judgment.  Crittenden  v.  San  Prancisco 
Savings  Union,  157  Cal.  201;  107  Pac.  103. 
The  trial  court  cannot  vacate  or  set  aside 
a  judgment  for  costs  on  appeal,  docketed 
in  conformity  with  the  rules  of  the  su- 
preme court  and  §  958,  ante;  but  it  may 
set  aside  such  judgment,  so  as  to  make 
it  conform  to  the  judgment  upon  appeal. 
Chapman  v.  Hughes,  3  Cal.  App.  622;  86 
Pac.  90S.  Though  the  clerk  of  the  su- 
preme court  enters  upon  the  record,  and 
inserts  in  the  remittitur  on  each  of  two 
appeals,  one  from  the  judgment  and  the 
other  from  an  order  denying  a  motion  for 
a  new  trial,  a  direction  that  the  appellant 
recover  the  costs  thereof,  the  trial  court 
errs  in  striking  out  the  memorandum  of 
costs  filed  in  connection  with  the  appeal 
from  the  judgment,  where  the  order  deny- 
ing a  new  trial  was  affirmed,  but  the  cause 
was  remanded  with  directions  to  modify 
the  judgment.  Crittenden  v.  San  Fran- 
cisco Savings  Union,  157  Cal.  201;  107  Pac. 
103. 

Taxation  by  superior  court  of  expenses 
in  appellate  court.    See  note  ante,  §  1025. 

CODE  COMMISSIONERS'  NOTE.  On  the  re- 
quest of  the  succtssful  piuty,  the  clerk  of  the 
court  below  must  issue  an  e.xecution  for  the  costs 
included  in  the  memorandum,  and  the  costs  of 
the  clerk  of  the  supreme  court  as  certified  by 
him  on  the  remittitur.  Ex  parte  Burrill,  24  Cal. 
350;  Mayor  etc.  of  Marysville  v.  Buchanan,  3 
Cal.  212;"  People  v.  Jones,  20  Cal.  50.  Where 
a  judgment  is  against  two,  one  only  of  whom  ap- 
peals, and  the  appeal  is  dismissed,  with  twenty 
per  cent  damages,  the  damages  with  the  costs 
are  not  a  part  of  the  original  judgment,  and 
the  redemptioner  is  not  bound  to  pay  them  on 
redemption  from  a  sale  under  the  judgment. 
The  court  below  can  issue  execution  for  the 
damages  and  costs.  McMillan  v.  Vischer,  14  Cal. 
241. 


§1035 


COSTS. 


119G 


§  1035.  Interest  and  costs  must  be  included  by  the  clerk  in  the  judgment. 
The  clerk  must  include  in  the  judgment  entered  up  by  him,  any  interest  on 
the  verdict  or  decision  of  the  court,  from  the  time  it  was  rendered  or  made, 
and  the  costs,  if  the  same  have  been  taxed  or  ascertained;  and  he  must, 
within  two  days  after  the  same  are  taxed  or  ascertained,  if  not  included  in 
the  judgment,  insert  the  same  in  a  blank  left  in  the  judgment  for  that  pur- 
pose, and  must  make  a  similar  insertion  of  the  costs  in  the  copies  and  docket 
of  the  judgment. 


Interest  on  judgments.  See  Civ.  Code,  §§  1917, 
1918,  1920. 

Legislation  §  1035.  Enacted  March  11,  1872; 
based  on  Practice  Act.  §  511  (New  York  Code, 
§  310),  as  amended  by  Stats.  1861,  p.  494, 
substituting  (1)  "must"  for  "shall"  in  the  three 
instances,  and  (2)  "are"  for  "shall  be"  before 
"taxed." 

Construction  of  section.  Cases  where 
the  judgment  is  not  rendered  immediately 
on  the  rendition  of  the  verdict,  or  on  the 
filing  of  the  findings  of  facts  found  by  the 
court  or  referee,  are  provided  for  by  this 
section.    Gray  v.  Palmer,  28  Cal.  416. 

Interest.  The  provisions  of  this  section 
create  a  right  to  interest  from  the  rendi- 
tion of  the  judgment,  in  the  party  in 
whose  favor  the  decision  is  made,  and  he 
cannot  be  deprived  of  such  right  because 
the  court  formulates  the  judgment  to  be 
entered,  instead  of  leaving  it  to  the  action 
of  the  clerk  alone.  Barnhart  v.  Edwards, 
128  Cal.  572;  61  Pac.  176.  Interest  on  a 
note  sued  on  should  be  computed,  at  the 
rate  fixed  in  the  note,  from  its  maturity 
to  the  date  of  the  decision,  and  the 
amount  thereof  added  to  the  principal; 
the  resulting  sum  thereafter  bears  interest 
at  the  legal  rate.  United  States  Nat.  Bank 
V.  Waddingham,  7  Cal.  App.  172;  93  Pac. 
1046;  Guy  V.  Franklin,  5  Cal.  416.  Where 
the  settlement  of  an  account  by  the  court 
involves  the  amount  due  upon  a  note,  it 
should  embrace  the  whole  amount  due  for 
principal  and  interest  at  that  date,  and 
that  amount  should  bear  interest  there- 
after, as  a  whole,  at  the  legal  rate,  and 
not  according  to  the  rate  stipulated  in  the 
note.  Murdock  v.  Clarke,  88  Cal.  384;  26 
Pac.  601.  Where  the  clerk  delays  to  en- 
ter judgment  for  nearly  two  years  after 
the  rendition  thereof,  he  should  then  enter 
the  judgment  as  of  the  time  of  its  rendi- 
tion for  the  amount  due  at  the  commence- 
ment of  the  action,  with  interest  to  the 
date  of  entry.  Cutting  Fruit  Packing  Co. 
V.  Canty,  141  Cal.  692;  75  Pac.  564.  A 
judgment  entered  on  a  verdict  should  be 
for  the  amount  of  the  verdict,  with  in- 
terest, at  the  legal  rate,  from  the  day 
on  which  it  was  returned  by  the  jury;  and 
the  clerk  has  no  authority  to  include  in 
the  amount  of  the  judgment  the  interest 
which  has  accrued  on  the  verdict  from 
the  time  of  its  rendition  until  the  time 
of  the  entry  of  judgment,  and  provide  that 
such  gross  amount  shall  thereafter  bear 
legal    interest.     Alpers    v.    Schammel,    75 


Cal.  .590;  17  Pac.  708.  Where  judgment 
was  not  entered  until  one  year  after  the 
rendition  of  the  verdict,  the  clerk  should 
include  therein  interest  on  the  amount  of 
the  verdict  from  the  time  of  its  rendition. 
Golden  Gate  Mill  etc.  Co.  v.  Joshua  Ilendy 
Machine  Works,  82  Cal.  184;  23  Pac.  45. 
In  a  final  decree,  interest  at  seven  per 
cent  per  annum,  without  compounding, 
upon  unpaid  alimony  allowed  in  a  former 
decree,  may  be  allowed  from  the  date  of 
maturitv  of  each  installment.  Huellmantel 
V.  Huellmantel,  124  Cal.  583;  57  Pac.  582. 
In  an  action  to  enforce  a  mechanic's  lien, 
the  contractor  is  entitled  to  interest  on  the 
respective  payments  to  be  made  under 
the  contract,  from  the  dates  when  they 
became  due,  and  not  upon  the  gross 
amount,  from  the  commencement  of  the 
action.  Knowles  v.  Baldwin,  125  Cal.  224; 
57  Pac.  988.  In  an  action  of  quantum 
meruit,  interest  is  not  allowed  until  judg- 
ment is  rendered:  interest  cannot  be  al- 
lowed upon  unliquidated  demands  before 
judgment.  American-Hawaiian  Engineer- 
ing etc.  Co.  V.  Butler,  17  Cal.  App.  764; 
121  Pac.  709;  Burnett  v.  Glas,  154  Cal.  249; 
97  Pac.  423.  Where  a  judgment  is  modi- 
fied upon  appeal,  reducing  the  amount 
thereof,  interest  is  properly  computed 
from  the  time  of  the  original  rendition  of 
the  judgment  (Clark  v.  Dunnam,  46  Cal. 
204):  the  correction  by  the  superior  court, 
in  such  case,  is  not  a  new  decision  upon 
the  issues.  Barnhart  v.  Edwards,  128  Cal. 
572;  61  Pac.  176. 

Insertion  of  costs  in  judgment.  The 
insertion  of  costs  in  the  judgment  is  a 
mere  ministerial  act  of  the  clerk,  depend- 
ing entirely  upon  the  filing  of  a  memo- 
randum for  its  authority;  and  where  no 
memorandum  is  served  on  the  opposite 
party,  and  none  filed,  a  judgment  for  costs 
is  void.  Riddell  v.  Harrell,  71  Cal.  254; 
12  Pac.  67;  and  see  Chapin  v.  Broder,  16 
Cal.  403.  The  insertion,  in  the  decree,  of 
the  amount  of  costs  as  claimed  by  the 
plaintiif,  before  they  are  taxed  or  properly 
ascertained,  is  a  mere  clerical  misprision, 
not  affecting  the  validity  of  the  decree, 
nor  the  order  of  sale  issued  thereon;  and 
the  subsequent  taxing  of  the  costs  by  the 
court  is  an  amendment  and  a  curing  of 
the  error  (Janes  v.  Bullard,  107  Cal.  130; 
40  Pac.  108) ;  and  an  order  reducing  the 
amount  of  the  costs  erroneously  entered 
by  the  clerk,  without  awaiting  the  deter- 


1197 


SECURITY  FOR  COSTS  WHEN — BOND. 


§  1036 


mination  of  a  motion  to  rctax  the  costs, 
also  operates  to  cure  such  error.  Foley  v. 
Califnrina  Horseshoe  Co.,  115  Cal.  184;  56 
Am.  St.  Kep.  87;  47  Pac.  42. 

Interest  on  judgment.    See  note  17  L.  R.  A.  612. 

CODE  COMMISSIONERS'  NOTE.  A  judg- 
ment can  propt'ily  Liear  iiitHi-cst  only  from  tho 
time  it  is  pronounced.  If  there  be  interest  due 
on  the  demand  on  which  the  action  is  brought, 
it  sliould  be  included  in  the  judgment  when  en- 
tered. Bibend  v.  Liverpool  Fire  etc.  Ins.  Co., 
30  Cal.  78.  Where  the  judgment  of  the  court 
below  is  reversed,  and  the  case  remanded  for 
further  proceedings,  and  costs  are  awarded  in 
general  terms,  the  costs  awarded  include  only 
the  costs  made  on  the  appeal  to  the  supreme 
court.  The  costs  of  the  former  trial  abide  the 
event  of  the  suit.  The  clerk  of  the  court  below 
can  issue  an  e.xecution  for  the  costs  included  in 
the  memorandum  and  the  costs  as  certified  by 
the  clerk  of  the  supreme  court  on  the  remittitur. 
E.x  parte  Burrill,  24  Cal.  350.  Costs  constitute 
a  part   of   the  judgment,   and   though   ascertained 


and  adjudged  by  the  court  after  an  entry  of 
the  judgment  by  the  clerk  may  have  been  made, 
yet  the  law  considers  such  action  of  the  court 
us  having  preceded  the  final  judgment.  Lasky 
V.  Davis,  33  Cal.  677.  After  a  judgment  is  en- 
tered and  the  record  completed,  the  clerk  has 
no  power  to  fill  up  the  blank  left  for  costs. 
The  court  alone  is  competent  to  relieve,  by 
amendment,  where  costs  are  omitted.  Chapin  v. 
Broder,  16  Cal.  403.  Without  any  express  con- 
tract in  writing,  made  by  the  testator,  pro- 
viding for  a  higher  rate  of  interest  then  ten 
per  cent  per  annum,  the  executors  have  no 
authority  to  consent  to  the  entry  of  a  judgment 
bearing  a  greater  rate  of  interest  than  ten  per 
cent  per  annum ;  and  must  be  charged  with  tho 
excess  of  interest  in  their  final  account.  Estate 
of  Isaacs,  30  Cal.  10.").  In  ejectment,  if  th'^ 
plaintiff  recovers  judgment,  he  is  entitled  to 
full  costs,  notwithstanding  he  recover*  a  less 
interest  than  he  sued  for.  Havens  v.  Dale,  30 
Cal.  547.  And  although  the  answer  admitted 
his  right  to  the  interest  recovered,  but  raised  an 
issue  on  the  question  of  the  ouster  from  the 
part  recovered.    Lawton  v.  Gordon,  37  Cal.  203. 

§  1036.  When  plaintiff  is  a  non-resident  or  foreign  corporation,  defend- 
ant may  require  security  for  costs.  When  the  plaintiff  in  an  action  or 
special  proceeding  resides  out  of  the  state,  or  is  a  foreign  corporation,  secu- 
rity for  the  costs  and  charges,  which  may  be  awarded  against  such  plaintiff, 
may  be  required  by  the  defendant.  "When  required,  all  proceedings  in  the 
action  or  special  proceeding  must  be  stayed  until  an  undertaking,  executed 
by  two  or  more  persons,  is  filed  with  the  clerk,  to  the  effect  that  they  will 
pay  such  costs  and  charges  as  may  be  awarded  against  the  plaintiff  by  judg- 
ment, or  in  the  progress  of  the  action  or  special  proceeding,  not  exceeding 
the  sum  of  three  hundred  dollars.  A  new  or  an  additional  undertaking  may 
be  ordered  by  the  court  or  judge,  upon  proof  that  the  original  undertaking 
is  insufficient  security,  and  proceedings  in  the  action  or  special  proceeding 
stayed  until  such  new  or  additional  undertaking  is  executed  and  filed. 


Qualification   of    sureties.     Post,  §  1057. 

Legislation  §  1036.  1.  Enacted  March  11, 
ISrSJ;  based  on  Practice  Act,  §  512  (New  York 
Code,  §  303),  (1)  substituting  "must"  for  "shall" 
before  "be  stayed,"  and  (2)  "is"  for  "be"  before 
"filed"  and  before  "executed." 

3.  Amendment  by  Stats.  1901,  p.  181;  un- 
constitutional.    See  note  ante.  §  5. 

3.  Amended  by  Stats.  1903,  p.  187,  adding 
"or  special  proceeding"  after  "action,"  in  each 
instance. 

Construction  of  code  sections.  This  sec- 
tion vests  the  defendant  with  the  right  to 
security  for  costs,  and  the  court  cannot, 
against  his  will,  deprive  him  of  it;  nor,  by 
application  of  the  principle,  Expressio 
unius  est  exclusio  alterius,  does  this  sec- 
tion prevent  the  court  from  requiring  se- 
curity for  costs  as  a  condition  for  allowing 
an  amendment  to  the  complaint,  under 
§473,  ante.  Clune  v.  Sullivan,  56  Cal.  249. 
An  order  requiring  security  for  costs  to  be 
filed  within  ten  days  is  ineffectual  for  any 
purpose,  because,  under  this  section  and 
§  1037,  post,  the  parties  have  thirty  days 
in  which  to  file  the  undertaking  to  secure 
costs.  Estate  of  Dean,  149  Cal.  487;  87  Pac. 
13.  The  amount  of  the  bond,  as  well  as 
the  conditions  thereof,  are  prescribed  by 
the  code,  and  the  court  has  no  power  to 
change  either;  uor  has  it  power  to  deprive 


the  defendant  of  his  right  to  the  bond, 
against  his  will,  such  right  being  vested 
in  him  by  the  statute;  and  when  the  de- 
mand for  security  for  costs  is  made,  the 
law  itself  enjoins  further  proceedings  on 
the  part  of  the  plaintiff  until  the  demand 
is  complied  with  according  to  the  provis- 
ions of  the  code;  and  after  the  undertak- 
ing or  bond,  in  the  sum  and  in  the  form 
specified,  is  given,  a  new  or  additional 
undertaking  may  be  ordered  by  the  court, 
when  the  first  is  deemed  insufficient;  but 
the  court  has  no  power  to  dispense  with 
the  giving  of  the  first  bond  or  undertaking. 
Meade  v.  Bailey,  137  Cal.  447;  70  Pac.  297. 
Insufficient  bond  on  appeal.  An  under- 
taking on  attachment,  given  months  prior 
to  the  appeal,  by  a  foreign  corporation,  to 
secure  damages  and  costs  on  appeal,  is  not 
a  sufficient  bond  on  appeal.  Stimpson 
Computing  Scale  Co.  v.  Superior  Court,  12 
Cal.  App.  536;  107  Pac.  1013. 

Right  of  defendant  to  demand  security  for  costs 
after  answer.    See  note  8   .Vnn.  Cas.  944. 

Sufficiency  of  cost  bond  with  respect  to  form 
and  contents.    See  note  Ann.  Cas.   1913U,  575. 

CODE  COMMISSIONERS'  NOTE.  Defendant 
served  on  plaintiff,  a  non-resident,  notice  to  giva 
security  for  costs,  the  notice  not  being  accom- 
panied with  an  order  staying  proceedings,  and 
on    the    next    day    judgment    was     rendered     for 


§§  1037-1039 


COSTS. 


1198 


defendant,  and  plaintiff  appealed  to  the  supreme  The  undertaking  on  appeal  ^^s  sufficient  secu- 
court.  Motion  to  dismiss  the  appeal  was  de-  r.ty  for  costs  subsequently  incurred.  Comstock 
nied,    because,    after   judgment,    it    came   too   late.         v.  Clemens,  19  Cal.  *  7. 

§  1037.     If  such  security  be  not  given,  the  action  may  be  dismissed.     After 

the  lapse  of  thirty  days  from  the  service  of  notice  that  security  is  required, 

or  of  an  order  for  new  or  additional  security,  upon  proof  thereof,  and  that 

no  undertaking  as  required  has  been  filed,  the  court  or  judge  may  order 

the  action  or  special  proceeding  to  be  dismissed. 

Dismissal  of   action.     Where   the  notice 
to    give    security    for    costs    is    not    accom 


Legislation  §  1037.  1.  Enacted  March  11, 
lS7a.  in  exact  language  of  Practice  Act,  §  514. 

2.  Amendment  by  Stats.  1901,  p.  181;  un- 
constitutional.    See  note  ante.  §  5. 

3.  Amended  by  Stats.  1903.  p.  188,  inserting 
"or  special  proceeding"  after  "action." 

Construction  of  section.  A  contest  to 
revoke  the  probate  of  a  will  is  not  an  ac- 
tion provided  for  in  this  section;  and,  in 
such  a  proceeding,  a  non-resident  con- 
testant is  not  required  to  give  the  security 
for  costs.  Estate  of  Joseph,  118  Cal.  660; 
50  Pac.  768. 

Time  for  giving  security.  An  order  re- 
quiring additional  security  to  be  given 
within  ten  days  is  ineffectual,  where  the 
statute  allows  thirty  days  to  comply  with 
such  an  order.  Estate  of  Dean,  149  Cal. 
487;  87  Pac.  13. 


panied  with  an  order  staying  proceedings, 
and,  on  the  day  after  service  thereof,  judg- 
ment is  rendered,  a  motion  for  dismissal, 
made  after  the  appeal  is  taken,  will  not  be 
granted;  the  motion  comes  too  late,  and 
the  undertaking  on  appeal  is  sufficient  se- 
curity for  costs  subsequently  incurred. 
Comstock  V.  Clemens,  19  Cal.  77.  A  judg- 
ment of  dismissal  for  failure  to  file  the 
undertaking  is  not  upon  the  merits,  and 
only  concludes  the  matter  then  directly 
adjudged,  and  is  not  a  bar  to  a  subsequent 
action,  founded  upon  the  same  cause  of 
action,  by  the  same  plaintiff,  after  becom- 
ing a  resident  of  the  state.  Rosenthal  v. 
McMann,  93  Cal.  505;  29  Pac.  121. 

§  1038,     Costs  when  state  is  a  party.     When  the  state  is  a  party,  and  costs 
are  awarded  against  it,  they  must  be  paid  out  of  the  state  treasury. 


No  security  required  of  state.    Post,  §  1058. 

Legislation  §  1038.      Enacted  March  11,  1S73. 

Construction  of  section.  This  section 
deals  merely  with  costs,  as  such:  it  does 
not  include  counsel  fees  for  services  ren- 
dered in  an  action  to  which  the  state  is  a 
party.  Sullivan  v.  Gage,  145  Cal.  759;  79 
Pac.  537. 

Costs  payable  by  state  when.     Where  an 

§  1039.     Costs  when  county  is  a  party.     When  a  county  is  a  party,  and 
costs  are  awarded  against  it,  they  must  be  paid  out  of  the  county  treasury. 

sarily  imply  that  a  personal  judgment  for 
costs  or  damages  may  not  be  rendered 
against  him  on  the  merits  of  the  case  for 
refusal    to    issue    the    warrant    improperly. 


execution  issued  on  a  judgment  against  a 
defaulting  purchaser  of  state  lands  was  re- 
turned unsatisfied,  the  cost  of  publication 
of  summons,  taxed  properly  as  costs  against 
the  defendant,  must  be  paid  by  the  state 
out  of  the  general  fund.  Lawrence  v.  Booth, 
46  Cal.  187. 

Liability  of  state  for  costs.    See  notes  8  Ann. 
Cas.  398;   42  L.  R.  A.  41. 


No  security  required  of  county.    Post,  §  1058. 

Legislation  §  1039.      Enacted  March  11,  1873. 

Personal  judgment  against  county  au- 
ditor. The  fact  that  an  undertaking  is 
dispensed  with  upon  an  appeal  by  a  county 
auditor,  who  is  contesting,  as  illegal,  a 
claim   against   a    county,   does   not   neces- 


without  just  cause  to  doubt  the  validity 
of  the  claim.  Lamberson  v.  Jefferds,  116 
Cal.  492;  48  Pac.  485. 


1199 


PAPERS — LOST — WITH   DEFECTIVE    TITLE. 


§§  1045, 1046 


CHAPTER  VII. 

GENERAL  PROVISIONS. 


§  1045.    liost  papers,  how  supplied. 

§1046.    Papers    without    the    title   of   the   action, 

or  with  defective  title,   may  be  valid. 
§  1046a.  Filing  of  papers  nunc  pro  tune. 
§  1047.     Successive  actions  on  the  same  contract, 

etc. 
§  1048.     Consolidation  of  several  actions  into  one. 
§  1049.     Actions,  when  deemed  pending. 
§  1050.     Actions  to  determine  adverse  claims,  and 

by  sureties. 
§  1051.    Testimony,   when    to    be    taken    by   the 

clerk. 
§  1052.     The  clerk  must  keep  a  register  of  actions. 
§  1053.     Two  of  three  referees,   etc.,   may  do  any 

act. 


§  1054.    Time  within  which  an  act  is  to  be  done 

may  be  extended. 
5  1055.     Action  against  officer  for  official  acts. 
§  1056.     Corporations  may  become  cnreticii  on  un- 
dertakings and  bonds. 
§  1057.     Undertakings     mentioned     in    this    code, 

requisites  of. 
§  1057a.  Justification     by    corporate     security    on 

bonds.      Procedure.      County    clerk    to 

issue  certificate.      Fee. 
§  1058.     People     of    state    not     required    to    give 

bonds  when  state  is  a  party. 
§  1059.     Surety    on    appeal    substituted    to    righti 

of  judgment  creditor. 


§  1045.  Lost  papers,  how  supplied.  If  an  oricjinal  pleadinj?  or  paper  be 
lost,  the  court  may  authorize  a  copy  thereof  to  be  filed  and  used  instead  of 
the  orisjinal. 


Legislation  S  1045.      Enacted  March  11.  1873. 

Construction  of  section.  The  fact  that 
the  summons  in  an  action  was  lost  for  a 
time  cannot  make  any  difference,  on  a 
motion  to  dismiss  under  §  581,  ante:  the 
remedy  for  such  loss  is  provided  for  in  this 
section.  Grant  v.  McArthur,  137  Cal.  270; 
7UPac.  88. 

Appellate  court  cannot  substitute  copy. 
The  appellate  court  has  no  control  over  the 
records  of  the  trial  court,  and  in  case  of 
the  loss  of  the  judgment  roll,  an  order 
substituting  copies  thereof  is  within  the 
province  of  the  trial  court.  Buckman  v. 
Whitney,  28  Cal.  555. 

Presumption  of  substitution.  Where  the 
judgment  roll  contains  a  copy  of  a  paper, 
instead  of  the  original,  it  will  be  inferred 
that  the  original  had  been  lost,  and  that 
a  copy  was  substituted  therefor  by  order 
of  the  court  upon  a  proper  showing.  Sichler 
V.  Look,  93  Cal.  600;  29  Pac.  220. 

Effect  of  substitution.  An  order  au- 
thorizing copies  of  papers  to  be  filed  is  a 
determination  that  they  are  correct  copies 
of  the  originals,  and  the  copies  thus  sub- 
stituted are  entitled  to  the  same  weight 
as  original  papers.  Hibernia  Sav.  &  L.  Soc. 
V.  Matthai,  116  Cal.  424;  48  Pac.  370;  and 
see  Knowlton  v.  Mackenzie,  110  Cal.  183; 
42  Pac.  580. 

Discretion  of  court,  and  practice.  The 
substitution  of  papers,  or  of  pleadings,  is 
always  within  the  discretion  of  the  court, 
and  no  notice  of  the  motion  to  apply  there- 
for need  be  given,  when  the  notice  can  be 


of  no  use.  Benedict  v.  Cozzens,  4  Cal.  381. 
Where  a  pleading  in  a  pending  action  is 
lost,  its  place  can  only  be  supplied  by  mo- 
tion based  upon  affidavits  showing  what 
the  lost  pleading  contained,  and  the  ser- 
vice of  personal  notice,  upon  the  opposite 
party,  of  the  intention  to  move,  which 
notice  must  be  sufficiently  explicit  to  ad- 
vise him  of  what  is  intended,  as  well  as  to 
enable  him  to  controvert  the  affidavits  sub- 
mitted.   People  V.  Cazalis,  27  Cal.  522. 

Evidence  where  judgment  roll  is  lost. 
The  judgment-book  should  be  admitted  as 
competent  evidence  of  the  matters  consid- 
ered and  passed  upon  by  the  court  in  case 
the  judgment  roll  in  the  action  is  lost. 
Simmons  v.  Threshour,  118  Cal.  100;  50 
Pac.  312. 

Review  on  appeal.  Where  the  judgment 
roll,  or  any  part  of  the  record  in  the  trial 
court,  has  been  lost,  the  trial  court,  upon 
proper  proof,  may  supply  its  place  by 
copies,  and  direct  that  the  proved  copies 
be  substituted  for  the  lost  papers,  and  that 
they  shall  constitute  the  record,  or  portion 
of  it  lost;  here  the  functions  of  the  trial 
court  end;  and  if  either  party  is  dissatis- 
fied with  an  order  of  the  trial  court  in 
supplying  a  lost  record,  it  may  be  reviewed 
by  an  appeal  from  the  order.  Buckman  v. 
Whitney,  28  Cal.  555. 

Disposition  of  appeal,  where  without  fraud  of 
appellant,    the  record  ia  lost.     See  note  25  L.  R.  A. 

(N.  S.)  860. 

CODE  COMMISSIONERS'  NOTE.  Buckman 
V.  Whitney,  24  Cal.  267;  Buckman  v.  Whitney, 
28  Cal.  555. 


§  1046.  Papers  without  the  title  of  the  action,  or  with  defective  title,  may 
be  valid.  An  affidavit,  notice,  or  other  paper,  without  the  title  of  the  action 
or  proceeding  in  which  it  is  made,  or  with  a  defective  title,  is  as  valid  and 
effectual  for  any  purpose  as  if  duly  entitled,  if  it  intelligibly  refer  to  such 
action  or  proceeding. 

Legislation  S  1046.     Enacted  March  11,  1872;  Title  Of  notice.      A   notice  of  the  taking 

based   on    Practice    Act,    §    5.'!1    (New    York   Code,  i;         i  -i-         •  ^   •  i-  i   i.  r 

§  406),  substituting  "is"  for  "shall  be."  ©^  ^  deposition  IS  not  invalid  by  reason  of 


1046a-1048 


GENERAL   PROVISIONS. 


1200 


an  error  in  the  title  of  the  cause,  where 
no  other  suit  was  pending  between  the  par- 
ties named,  and  no  one  was  misled  by  the 
defective  title.  Mills  v.  Dunlap,  3  Cail.  94. 
A  notice  of  intention  to  move  for  a  new 
trial,  directed  to  and  served  on  the  at- 
torneys who  were  attorneys  for  all  of  the 
plaintiifs,  is  not  rendered  insufficient  be- 
cause the  name  of  one  of  the  plaintiffs  was 
inadvertently  omitted  in  the  caption  of 
the  notice.  Cook  v.  Sudden,  94  Cal.  443; 
29  Pac.  949.  A  notice  of  appeal,  which  is 
duly  entitled  as  to  the  court  and  the  de- 
partment thereof  in  which  the  action  was 
tried,  and  which  intelligibly  refers  to  the 
number  of  the  case  and  to  the  judgment 
and  order  denying  the  defendant's  motion 
for  a  new  trial,  is  not  invalidated  because 
of  a  mistake  in  the  christian  name  of  the 
plaintiff  in  the  title  of  the  cause  in  such 
notice.  Butler  v,  Ashworth,  100  Cal.  334; 
34  Pac.  780. 

Of   affidavit.     It   is    not    necessary    that 


the  affidavit  upon  which  a  writ  of  mandate 
is  issued  shall  contain  the  title  of  the  ac- 
tion or  proceeding  in  which  it  is  made: 
such  affidavit,  not  duly  entitled,  is  as  valid 
as  if  it  were.  McCrary  v.  Beaudry,  67  Cal. 
120;  7  Pac.  264.  An  affidavit  on  motion 
for  a  change  of  venue,  attached  to  both 
the  notice  and  the  demand,  not  fully  stat- 
ing the  title  of  the  action,  but  referring 
to  the  "above-entitled  action,"  must  be 
held  to  refer  to  the  action  entitled  in  the 
notice  and  the  demand,  and  is  sufficient, 
under  this  section.  Watt  v.  Bradley,  95 
Cal.  415;  30  Pac.  557. 

New  undertaking,  where  first  one  defect- 
ive. Where  an  appeal  is  bona  fide,  and 
not  taken  for  delay,  appellate  courts  will 
always  permit  a  new  undertaking  to  be 
filed,  where  the  original  is  defective. 
Coulter  V.  Stark,  7  Cal.  244. 

CODE  COMMISSIONERS'  NOTE.  Mills  v. 
Dunlap,  3  Cal.  94. 


§  1046a.  Filing  of  papers  nunc  pro  tunc.  In  all  cases  brought  under  the 
provisions  of  any  act  providing  for  the  establishment  and  quieting  of  title 
to  real  property  in  cases  where  the  public  records  in  the  office  of  the  county 
recorder  have  been,  or  shall  hereafter  be,  lost  or  destroyed,  in  whole  or  in 
any  material  part  by  flood,  fire  or  earthquake,  all  papers  filed  under  order 
of  court  nunc  pro  tunc  as  of  the  date  when  they  should  have  been  filed,  shall 
have  the  same  force  and  effect  as  if  filed  on  the  date  when  they  should  have 
been  filed. 


Legislation  §  1046a.     Added    by    Stats.  1909, 
p.  1055. 


Nunc  pro  tunc  entry  of  judgment.    See  note  4 
Am.  St.  Rep.  828. 


§  1047.     Successive  actions  on  the  same  contract,  etc.     Successive  actions 

may  be  maintained  upon  the  same  contract  or  transaction,  whenever,  after 

the  former  action,  a  new  cause  of  action  arises  therefrom. 

plete  at  the  time  of  such  repudiation,  and 
a  single  and  entire  cause  of  action  at  once 
arises:  it  is  not  a  continuous  breach,  giv- 
ing rise  to  new  causes  of  action  as  long  as 
it  continues.  Abbott  v.  76  Land  &  Water 
Co.,  161  Cal.  42;  118  Pac.  425. 


Splitting  entire  demand  into  several  causes  of 
action.    See  note  24  Am.  Dpc.  61. 

Right  of  buyer  to  maintain  separate  action  for 
non-delivery  of  each  installment  under  entire  con- 
tract.   See  note  3  L.  R.  A.    (N.  S. )    1042. 

Right  to  sue  on  separate  items  of  account  for 
goods  sold  on  stated  periods  of  credit.  See  note 
13  L.  R.  A.  (N.  S.)  529. 


Action,    defined.    Ante,  §  22. 

Legislation  §  1047.  Enacted  March  11,  t873, 
in  the  exact  language  of  Practice  Act,   §   525. 

Application  of  section.  The  rule  stated 
in  this  section  has  no  application  to  actions 
for  additional  damages  on  account  of  some 
particular  breach  involved  in  a  former  ac- 
tion. Abbott  V.  76  Land  and  Water  Co., 
161  Cal.  42;  118  Pac.  425. 

Breach  of  contract.  The  absolute  re- 
pudiation, by  the  vendor,  of  a  contract  for 
the  sale   of  land  is   a   single  breach,  com- 

§1048.  Consolidation  of  several  actions  into  one.  Whenever  two  or 
more  actions  are  pending  at  one  time  between  the  same  parties  and  in  the 
same  court,  upon  causes  of  action  which  might  have  been  joined,  the  court 
may  order  the  actions  to  be  consolidated. 

Legislation  §  1048.  Enacted  March  11,  1873; 
based  on  Practice  Act,  §  526  (New  York  Code, 
§  167),  omitting  "into  one"after  "consolidated." 

Actions   that   might   have   "been   joined. 

Where  the  causes  of  action  sued  on  in  sev- 
eral actions  might  have  been  united  in  one 
action,  the  court  may  order  a  consolidation. 
Smith   V.   Smith,   80   Cal.   323;   21   Pac.   4; 


Wolters  V.  Rossi,  126  Cal.  644;  59  Pac.  143. 
A  party  cannot  be  deprived  of  the  right 
to  attorneys'  fees  under  the  Vrooman  Act 
by  a  consolidation  of  the  actions.  Realty 
Construction  etc.  Co.  v.  Superior  Court, 
165  Cal.  543;  132  Pac.  1048. 

Suits  upon  distinct  causes.     The   appel- 
late court  will  not  consolidate  suits  brought 


1201 


ACTION   PENDING    WHEN — HOW   LONG. 


§  1049 


upon  distinct  causes  of  action.  Wallace  v. 
EJdredge,  27  Cal.  49S. 

Jurisdiction  after  consolidation.  A  jus- 
tice's court  has  jurisdiction  of  three  sepa- 
rate actions  to  recover  the  same  property, 
the  value  of  which  is  within  the  jurisdic- 
tional amount,  after  the  same  are  consoli- 
dated.   Cariaga  v.  Dryden.  29  Cal.  307. 

Evidence  after  consolidation.  Deposi- 
tions taken  in  any  one  of  the  actions  con- 
solidated are  admissible  on  the  trial  after 
consolidation.  Wolters  v.  Kossi,  126  Cal. 
614;  59rac.  143. 

Mechanic's  lien  cases.  Upon  the  con- 
solidation of  actions  to  foreclose  me- 
chanics' liens,  the  plaintiffs  become  actors 
against  each  other,  as  well  as  against  the 
owners,  and  each  is  entitled  to  reduce  or 
to    avoid    the    lien    of    the    others    by    any 

§  1049.  Actions,  when  deemed  pending.  An  action  is  deemed  to  be 
pending  from  the  time  of  its  commencement  until  its  final  determination 
upon  appeal,  or  until  the  time  for  appeal  has  passed,  unless  the  judgment  is 
sooner  satisfied. 


e'^idence  that  would  have  that  effect;  and 
the  nonsuit  of  one  plaintiff  as  to  certain 
defendants,  merely  determines  that  he  is 
entitled  to  nothing  as  against  those  de- 
fendants, and  he  still  remains  a  party  to 
the  consolidated  action  as  against  the 
owners  or  the  other  lien  claimants.  Ken- 
nedv  &  Shaw  Lumber  Co.  v.  Dusenbery, 
116"Cal.  124;  47  Pac.  1008. 

Appeal,  An  irregular  order,  consolidat- 
ing actions,  will  not  be  reviewed  on  appi-al, 
unless  an  exception  was  taken  in  the  lower 
court.  Bangs  v.  Dunn,  66  Cal.  72;  4  Pac. 
963. 


See  note  58  Am.  Dec. 


Consolidation  of  actions. 
508. 

CODE     COMMISSIONEES'     NOTE.      But     the 

supreme  court  will  not  consolidate  actions 
brought  upon  distinct  causes  of  action.  Wallace 
V.  Eldredge,  27  Cal.  498. 


Legislation  §  1049.  1.  Enacted  March  11, 
1872. 

2.  Amendment  by  Stats.  1901,  p.  182;  un- 
constitutional.    See  note  ante,  §  5. 

Construction  of  code  sections.  This  sec- 
tion does  not  purport  to  prescribe  a  rule  of 
evidence,  but  merely  to  determine  the 
condition  of  an  action  after  judgment  has 
been  rendered,  and,  inferentially,  the  effect 
of  the  judgment.  Cook  v.  Ceas,  143  Cal. 
221;  77  Pac.  65.  It  has  no  bearing  upon 
the  construction  to  be  given  §  336,  ante. 
Feeney  v.  Hinckley,  6  Cal.  Unrep.  666; 
64  Pac.  408. 

What  actions  included.  An  action  for 
divorce  is  included  in  this  section,  and, 
under  the  authority  to  grant  alimony 
pendente  lite,  the  court  may  make  an  al- 
lowance after  judgment  has  been  entered. 
Grannis  v.  Superior  Court,  143  Cal.  630; 
77  Pac.  647.  The  settlement  of  a  guar- 
dian's account  is  a  proceeding,  within  the 
meaning  of  this  section,  and  is  pending 
until  the  time  allowed  for  appeal  there- 
from has  expired.  Cook  v.  Ceas,  143  Cal. 
221;  77  Pac.  65. 

Pendency  continues  how  long.  An  ac- 
tion is  deemed  to  be  pending  from  the  time 
that  a  complaint  is  filed.  Ex  parte  Jout- 
sen,  154  Cal.  540;  98  Pac.  391.  An  action 
is  pending  after  the  entry  of  default,  and 
until  the  entry  of  final  judgment  (Abadie 
V.  Lobero,  36  Cal.  390),  and  while  an  ap- 
peal from  the  judgment  is  pending,  or  until 
the  time  for  such  an  appeal  has  expired. 
People  V.  Bank  of  San  Luis  Obispo,  159 
Cal.  65;  Ann.  Cas.  1912B,  1148;  112  Pac. 
866.  Until  the  time  for  an  appeal  has  ex- 
pired, if  the  judgment  has  not  been  sooner 
satisfied,  the  action  is,  under  this  section, 
to  be  deemed  as  pending,  and  the  proceed- 
ings therein  are  admissible,  under  proper 
pleadings,  in  abatement  of  a  subsequent 
1  Fair. — 76 


action  for  the  same  cause.  Harris  v.  Barn- 
hart,  97  Cal.  546;  32  Pac.  589.  The  sus- 
taining of  a  demurrer  to  a  complaint  does 
not  render  the  action  one  no  longer  pend- 
ing. Ex  parte  Joutsen,  154  Cal.  540;  98 
Pac.  391.  An  action  is  not  pending  after 
the  judgment  has  been  satisfied.  Delger  v. 
Jacobs,  19  Cal.  App.  197;  125  Pac.  258. 
A  motion  to  be  substituted  as  a  party  de- 
fendant is  a  recognition  of  the  action  as  a 
penrling  one.  Anderson  v.  Schloesser,  153 
Cal.  219;  95  Pac.  885. 

Eifect  on  later  action.  The  judgment 
in  an  action  pending,  the  time  for  appeal 
from  which  not  having  expired,  cannot 
constitute  a  bar  to  recovery  in  another  ac- 
tion between  the  same  parties,  relating  to 
the  same  subject  matter.  Naftzger  v 
Gregg_._99  Cal.  83;  37  Am.  St.  Eep.  23;  33 
Pac.  757.  While  an  action  is  pending  as 
provided  by  this  section,  the  judgment  ren- 
dered therein  cannot  be  a  bar  to  the  prose- 
cution of  a  subsequent  action.  Story  v. 
Story  &  Isham  Commercial  Co.,  100  Cal. 
41;  34  Pac.  675.  Though  a  former  judg- 
ment cannot  be  pleaded  in  bar  to  another 
action  or  cross-complaint  for  the  same 
cause  while  the  former  action  is  pending, 
yet  the  pendency  of  the  action  is  good 
ground  for  a  continuance  of  the  later  ac- 
tion until  the  former  action  is  finally  de- 
termined, and  would  be  good  ground  for 
dismissal  of  the  later  action,  in  which  a 
cross-complaint  is  filed  upon  the  same  cause 
of  action.  Brown  v.  Campbell,  100  Cal. 
635;  38  Am.  St.  Rep.  314;  35  Pac.  433. 

Satisfaction  of  judgment.  The  satisfac- 
tion of  a  judgment  makes  it  final,  though 
the  time  for  aj'peal  has  not  expired;  and, 
where  necessary  to  sustain  the  judgment 
against  the  sureties  on  an  injunction  bond, 
it  will  be  presumed,  in  the  absence  of  alle- 
gation   or    showing    to    the    contrary,    that 


§  1049 


GENERAL   PROVISIONS. 


1202 


the  judgment  was  satisfied.  Alaska  Im- 
provement Co.  V.  Hirsch,  119  Cal.  249;  47 
Pac.  124.  A  forced  payment  by  execution 
sale  against  a  non-consenting  judgment 
debtor  cannot  be  held  such  satisfaction  of 
the  judgment  as  will  abridge  any  of  his 
rights  upon  or  under  appeal.  Warner  Bros. 
Co.  V.  Freud,  131  Cal.  639;  82  Am.  St.  Eep. 
400;  63  Pac.  1017;  Kenney  v.  Parks,  120 
Cal.  22;  52  Pac.  40;  Vermont  Marble  Co. 
V.  Black,  123  Cal.  21;  55  Pac.  599;  Yndart 
V.  Den,  125  Cal.  85;  57  Pac.  761. 

Sale  of  mortgaged  property  pending  ap- 
peal. Where  an  appeal  was  taken  from  a 
judgment  foreclosing  a  mortgage,  without 
a  stay  of  execution,  and  the  mortgagee 
made  a  sale,  pending  the  appeal,  at  which 
time  he  became  the  purchaser,  and  after- 
wards conveyed  the  title,  pending  the  ap- 
peal, to  the  respondent,  the  effect  of  the 
reversal  of  the  judgment  is  to  nullify  the 
title  in  the  hands  of  the  respondent,  who 
was  bound  to  take  notice  of  all  the  pro- 
ceedings in  the  cause  and  of  the  defeasible 
title  of  his  grantor.  Di  Nola  v.  Allison, 
143  Cal.  106;  101  Am.  St.  Eep.  84;  65 
L.  E.  A.419;  76  Pac.  976. 

Evidence  on  plea  of  abatement.  Where 
an  answer  contains  a  plea  of  abatement 
by  reason  of  the  pendency  of  another  ac- 
tion, and  also  a  defense  on  the  merits 
the  better  practice  is,  to  require  the  de 
fendant  to  present  his  evidence  on  the  plea 
of  abatement  at  the  opening  of  his  defense 
Leonard  v.  Flynn,  89  Cal.  535;  23  Am.  St 
Eep.  500;  26  Pac.  1097. 

Jurisdiction  after  entry  of  judgment 
The  jurisdiction  of  the  court  over  the  sub 
ject-matter  of  the  suit  and  the  parties 
is  exhausted  by  the  entry  of  final  judg 
ment,  unless  preserved  in  some  mode  au 
thorized  by  statute;  such  judgment  is 
conclusive  not  only  as  to  the  relief  granted 
but  also  as  to  the  relief  withheld  or  denied 
and  thereafter  any  further  judgment  or 
other  proceeding  materially  involving  the 
judgment  is  a  mere  nullity.  White  v. 
White,  130  Cal.  597;  80  Am.  St.  Eep.  150; 
22  Pac.  1062.  The  court  loses  jurisdiction 
over  the  cause  when  the  judgment  becomes 
final,  and  it  cannot  thereafter  set  aside  or 
modify  the  judgment,  unless  by  the  ex- 
press authority  of  some  statute;  the  reason 
for  the  rule  being,  that  there  must  be  some 
finality  in  legal  proceedings,  and  a  period 
beyond  which  they  cannot  extend,  and  the 
safety  and  tranquillity  of  the  parties  re- 
quiring that  their  interests  shall  not  be 
constantly  suspended,  nor  their  repose 
liable  to  be  disturbed  at  any  moment,  at 
the  discretion  of  the  court.  Brackett  v. 
Banegas,  99  Cal.  623;  34  Pac.  344.  The 
pendency  of  an  action,  by  virtue  of  this 
section,  until  the  time  for  appeal  has 
passed,  has  not  the  effect  to  authorize  the 
trial  court  to  amend  or  alter  its  judgment 
efter  it  has  been  finally  entered  in  that 
court.  O'Brien  v.  O'Brien,  124  Cal.  422;  57 
Pac.  225.     The  modification  of  a  judgment 


or  supplemental  decree,  changing  the  prop- 
erty rights  of  the  parties  in  a  divorce  suit, 
cannot  be  made  after  the  decree  has  be- 
come final  and  the  time  for  appeal  has 
passed,  where  no  reservation  of  right  to 
make  the  same  was  made  in  the  decree,  if 
such  reservation  could  be  made.  O'Brien 
v.  O'Brien,  130  Cal.  409;  62  Pac.  598;  and 
see  Howell  v.  Howell,  104  Cal.  45;  43 
Am.  St.  Eep.  70;  37  Pac.  770.  The  rendi- 
tion of  judgment  in  a  suit  for  divorce  does 
not  exhaust  the  jurisdiction  of  the  court: 
it  may  grant  allowances  to  the  wife  during 
the  pendency  of  an  appeal,  and  until  the 
judgment  becomes  final.  Bruce  v.  Bruce, 
160  Cal.  28;  116  Pac.  66;  Dunphy  v.  Dun- 
phy,  161  Cal.  87;  118  Pac.  445.  The  power 
of  the  trial  court  to  make  an  allowance 
to  a  wife  for  her  support,  as  alimony,  or 
for  the  purpose  of  defending  or  prosecuting 
an  action  for  divorce,  is  not  exhausted 
upon  the  rendition  of  the  judgment,  but 
may  be  exercised  at  any  time  during  the 
pendency  of  an  appeal.  Bohnert  v.  Bohnert, 
91  Cal.  428;  27  Pac.  732. 

Finality  of  judgment.  Although  a  judg- 
ment may  be  final  with  reference  to  the 
court  which  pronounced  it,  and,  as  such, 
be  the  subject  of  an  appeal,  yet  it  is  not 
necessarily  final  with  reference  to  the 
property  or  rights  affected,  so  long  as  it  is 
subject  to  appeal  and  liable  to  be  reversed; 
and  a  judgment,  in  order  to  be  admissible 
in  evidence  for  the  purpose  of  proving 
facts  therein  recited,  must  be  a  final  judg- 
ment in  the  cause,  and  if  the  action  in 
which  the  judgment  is  rendered  is  still 
pending,  necessarily  the  judgment  is  not 
final.  Hills  v.  Sherwood,  33  Cal.  474;  Es- 
tate of  Blythe,  99  Cal.  472;  34  Pac.  108. 
Until  litigation  on  the  merits  is  ended, 
there  is  no  finality  to  the  judgment,  in 
the  sense  of  a  final  determination  of  the 
rights  of  the  parties,  although  it  may  have 
become  final  for  the  purpose  of  an  appeal. 
Gillmore  v.  American  Central  Ins.  Co.,  65 
Cal.  63;  2  Pac.  882;  Feeney  v.  Hinckley, 
134  Cal.  467;  86  Am.  St.  Eep.  290;  66  Pac. 
580.  A  final  adjudication  of  the  subject- 
matter  is  not  made  by  a  judgment  for  costs 
only,  for  or  against  one  of  the  parties, 
plaintiff  or  defendant.  Nolan  v.  Smith,  137 
Cal.  360;  70  Pac.  166. 

Judgment  as  evidence.  The  effect  of  a 
judgment  as  evidence  of  the  matters  deter- 
mined by  it  is  suspended  by  an  appeal, 
even  though  its  execution  is  not  stayed. 
Di  Nola  v.  Allison,  143  Cal.  106;  101 
Am.  St.  Eep.  84;  65  L.  E.  A.  419;  76  Pac. 
976.  The  operation  of  a  final  judgment  is 
suspended  by  an  appeal  therefrom,  and, 
pending  such  appeal,  the  judgment  is  not 
admissible  in  another  case  as  evidence,  even 
between  the  same  parties.  Harris  v.  Barn- 
hart,  97  Cal.  546;  32  Pac.  589.  Only  a 
final  judgment  upon  the  merits  prevents  a 
further  contest  upon  the  same  issue,  and 
becomes  evidence  in  another  issue,  be- 
tween  the   same   parties   or   their   privies;* 


1203 


ACTIONS — ADVERSE  CLAIMS — SURETIES, 


§1050 


and  until  a  final  jufigment  is  reached,  the 
propoodingjs  are  subject  to  change  and 
modification,  are  imi)ert'ect  and  inchoate, 
and  can  avail  nothing,  as  a  bar  or  as  evi- 
dence, until  the  judgment,  with  its  verity 
as  a  record,  settles  finally  and  conclusively 
the  question  at  issue;  whenever  the  judg- 
ment fails  to  fix  and  dotcrniiiie  the  ulti- 
mate rights  of  the  parties,  whenever  it 
leaves  room  for  a  final  decision  yet  to  be 
made,  it  is  not  admissible  in  another  ac- 
tion, for  the  plain  reason  that  it  has  finally 
decided  and  settled  nothing:  until  the  judg- 
ment comes,  no  man  can  know  what  the 
ultimate  decision  will  be.  Estate  of  Blythe, 
99  Cal.  472;  34  Pac.  108.  A  judgment  of 
divorce  is  not  available  in  any  civil  ac- 
tion involving  the  status  of  the  parties 
as  unmarried  persons,  until  the  expiration 
of  the  time  limited  for  appeal.  Estate  of 
Wood,  137  Cal.  129;  69  Pac.  900.  Upon 
an  application  for  a  writ  of  assistance, 
the  judgment  is  admissible  in  evidence,  al- 
though an  appeal  therefrom  is  pending. 
California  Moitgage  etc.  Bank  v.  Graves, 
129  Cal.  649;  62  Pac.  259. 

Attack  on  judgment.     The  fact  that  the 
case   is   no  longer  "pending"  interferes   in 


no  way  with  any  attack  on  the  judgment, 
based  upon  any  reason  for  which  the  judg- 
ment should  be  held  absolutely  void.  Fox 
v.  Townscnd.  2  Cal.  A  pp.  193;  83  Pac.  272. 

Statute  of  limitations.  The  statute  of 
limitations  does  not  begin  to  run  against 
an  action  upon  the  judgment  from  the  date 
of  its  entry,  but  only  after  the  lapse  of 
the  period  within  which  an  appeal  might 
be  taken  from  the  judgment,  if  none  is 
taken  therefrom,  or  after  the  final  deter- 
mination following  an  appeal  so  taken. 
Feeney  v.  Hinckley,  134  Cal.  467;  86  Am. 
St.  Rep.  290;  66  Pac.  580. 

Accrual  of  cause  of  action  upon  judg- 
ment. A  cause  of  action  uj)on  a  judgment 
does  not  accrue  until  the  judgment  be- 
comes final.  Hills  v.  Sherwood,  33  Cal. 
474;  Feonev  v.  Hinckley,  134  Cal.  467;  86 
Am.  St.  Rep.  290;  66  Pac.  580. 

Motion  for  new  trial  as  stay.  A  motion 
for  a  new  trial  does  not  stay  or  suspend 
the  operation  of  a  final  judgment  in  the 
cause,  in  the  absence  of  an  order  of  the 
court  to  that  effect.  Harris  v.  Barnhart,  97 
Cal.  546;  32  Pac.  589. 

When  action  is  pending.  See  note  Ann.  Cas. 
1912A,   843. 


§  1050.  Actions  to  determine  adverse  claims,  and  by  sureties.  An  action 
may  be  brought  by  one  person  against  another  for  the  purpose  of  determin- 
ing an  adverse  claim,  which  the  latter  makes  against  the  former  for  money 
or  property,  upon  an  alleged  obligation;  and  also  against  two  or  more  per- 
sons, for  the  purpose  of  compelling  one  to  satisfy  a  debt  due  to  the  other, 
for  which  plaintiff  is  bound  as  a  surety. 

ment  thereon,  and  the  plaintiflP  replied, 
alleging  fraud  in  procuring  the  note,  the 
action  is  one  purely  statutory  and  equi- 
table, in  which  a  jury  trial  cannot  be  de- 
manded as  a  matter  of  right,  although 
legal  issues,  incidental  to  the  equitable 
issue,  must  be  determined  in  arriving  at 
a  decision.  Taylor  v.  Ford,  3  Cal.  Unrep. 
297;  24  Pac.  942.  In  an  action  to  deter- 
mine an  adverse  claim  which  the  defendant 
asserted  against  the  plaintiff  upon  a 
promissory  note,  where  the  defendant  filed 
an  answer  and  cross-complaint  which  was, 
in  form  and  substance,  a  complaint  upon 
the  note,  with  a  prayer  for  judgment 
against  the  plaintiff  for  the  amount  due 
thereon,  a  jury  trial  should  be  allowed, 
unless  waived.  Taylor  v.  Ford,  92  Cal.  419; 
29  Pac.  441.  In  order  that  a  court  may 
try  and  conclusively  settle  all  adverse 
claims  to  property  sought  to  be  applied 
to  the  satisfaction  of  a  judgment,  all 
known  adverse  claimants  should  have  an 
opportunity  to  be  heard;  otherwise  they 
will  not  be  bound  by  anv  order  made. 
Deering  v.  Richardson-Kimball  Co.,  109 
Cal.  73;  41  Pac.  801. 

Action  of  quia  timet.  A  bank,  which 
has  paid  checks  claimed  by  the  depositor 
to  be  forgeries,  may  maintain  an  action 
to  determine  its  liabilitv  therefor.  Ger- 
man Sav.  &  L.  Soc.  v.  Collins,  145  Cal.  192; 
78  Pac.  637. 


Quieting  title  to   realty.     Ante,  §§  738  et  seq. 
Surety  may  compel  principal  to  perform  obli- 
gation.    See    Civ.    Code,  §  2846. 

Legislation  §  1050.  Enacted  March  11.  1873 
(based  on  Practice  Act,  §  527),  (1)  omitting 
"the"  before  "plaintiff,"  and  (2)  susbtituting 
"a  surety"  for  "security." 

Construction  of  section.  The  action  con- 
templated by  this  section  was  intended  as 
a  substitute  for  the  proceeding  in  chan- 
cery to  co-npel  the  creditor  to  sue,  and  it 
may  be  doubted  whether  any  other  action 
by  the  surety  against  the  creditor  is  al- 
lowed. Dane  v.  Corduan,  24  Cal.  157;  85 
Am.  Dec.  53.  Where  the  claim,  though 
adverse,  is  not  upon  an  obligation  between 
the  parties,  but  is  an  obligation  or  duty 
of  a  third  party  to  one  of  them,  this  sec- 
tion does  not  apply.  Gagossian  v.  Arake- 
lian,  9  Cal.  App.  571 ;  99  Pac.  1113. 

Action  to  determine  adverse  claim.  A 
plaintiff,  by  bringing  an  action  to  test  a 
claim  made  against  him,  cannot  deprive 
the  defendant  of  his  right  of  action:  were 
he  permitted  to  do  so,  the  defendant  would 
be  deprived  of  the  remedies  of  arrest  ami 
attachment,  either  of  which,  in  a  proper 
case,  may  be  resorted  to;  and  the  fact  that 
the  plaintiff  gave  an  injunction  bond  does 
not  matter.  King  v.  Hall,  5  Cal.  83. 
Where,  in  an  action  to  determine  an  ad- 
verse claim  made  by  the  defendant,  he  sets 
up  a  promissory  note  and  demanded  pay- 


§1051 


GENERAL   PROVISIONS. 


1204 


Action  against  county  or  state.  One 
county  may  maintain  an  action  against 
another  county,  under  the  County  Govern- 
ment Act,  as  for  money  had  and  received, 
in  a  proper  case,  after  the  presentation  of 
its  claim  to  the  board  of  supervisors  of  the 
latter.  Colusa  County  v.  Glenn  County,  117 
Cal.  434;  49  Pae.  457.  A  complaint,  al- 
leging that  an  ordinance  under  which  a  tax 
was  imposed  is  void,  and  that  a  claim 
under  such  ordinance  is  made  upon  the 
plaintiff  for  the  payment  of  the  tax,  and 
praying  that  such  ordinance  be  declared 
void,  cannot  be  sustained,  under  this  sec- 
tion, as  the  state  and  its  political  subdi- 
visions cannot  be  sued,  except  as  specially 
authorized  by  statute,  and  general  lan- 
guage creating  new  remedies  or  prescribing 
procedure  does  not  authorize  such  actions. 
Whittaker  v.  Tuolumne  County,  95  Cal. 
100;   30   Pac.   1016. 

Determinirjg  amount  due  on  mortgage. 
Where  the  consideration  for  a  part  of  the 
property  conveyed,  a  portion  of  the  pur- 
chase price  of  which  was  secured  by  mort- 
gage, fails,  the  mortgagor  may,  under  this 
section,  maintain  an  action  to  determine 
the  amount  due  on  the  mortgage,  and  in 
such  case  the  court  may  determine  the 
amount  to  which  the  plaintiff  is  entitled, 
and  reduce  the  note  and  mortgage  accord- 
ingly. Hoffman  v.  Kirby,  136  Cal.  26;  68 
Pac.  321. 

Burden  to  maintain  claim.  The  ordinary 
rule  is,  that  the  plaintiff  is  the  party 
charged  with  the  duty  of  diligence  in 
prosecuting  the  action  as  the  issues  are 
presented,  and  whenever  an  issue  of  law 
or  of  fact  is  presented,  the  duty  is  upon 
the  plaintiff  diligently  to  pursue  the  ac- 
tion; but  in  an  action  brought  under  this 
section,  by  one  per?on  against  another,  for 
the  purpose  of  determining  an  adverse 
claim  made  by  the  latter,  the  rule  is  modi- 
fied, and  the  burden  is  cast  upon  the  de- 
fendant to  set  forth  and  maintain  his 
claim,  and  it  might  be  said  that  he  would 
not  come  within  the  reason  of  the  rule. 
Mowrv  v.  Weisenborn,  137  Cal.  110;  69 
Pac.  971. 

Action  by  and  subrogation  of  surety.  A 
decree  of  ecpiity,  obtained  at  the  suit  of  a 
surety,  and  requiring  the  creditor  to  sue 
the  principal  debtor,  is  not  a  bar  to  an 
action  against  the  surety,  though  the  cred- 
itor fails  to  sue  the  principal  debtor,  unless 

§  1051.  Testimony,  when  to  be  taken  by  the  clerk.  On  the  trial  of  an 
action  in  a  court  of  record,  if  there  is  no  shorthand  reporter  of  the  court  in 
attendance,  either  party  may  require  the  clerk  to  take  down  the  testimony 
in  writing. 

Legislation  §  1051.  Enacted  March  11,  1S73; 
baseil  on  Practice  Act,  §  663.  The  code  com- 
missioners say  this  section  was  based  on  Prac- 
tice Act,  §  633,  but  .that  section  related  to  an 
entirely  different  matter;  namely,  requiring  jus- 
tices of  the  peace  to  receive  moneys  collected 
by  the  constable  or  sheriff.  The  section,  how- 
ever,   was    undoubtedly    based    on    Practice    Act, 


the  suretj'  specifically  performs  the  condi- 
tions imposed  by  the  decree.  Dane  v.  Cor- 
duan,  24  Cal.  157;  85  Am.  Dec.  53.  Where 
a  complaint  alleges  that  the  plaintiff  be- 
came surety  for  the  payment  of  rent  under 
a  lease,  and  prays  that  the  amount  due 
be  ascertained,  and  that  the  principal  be 
compelled  to  pay  the  same,  a  judgment 
exonerating  the  plaintiff  from  all  liability 
and  awarding  him  costs  cannot  be  sus- 
tained. McDougald  v.  Argonaut  Land  etc. 
Co.,  117  Cal.  87;  48  Pac.  1021.  Where  the 
property  of  the  maker  of  a  note  is  at- 
tached in  an  action  against  him  and  his 
indorser,  and  an  undertaking  for  the  re- 
lease of  such  property  is  conditioned  that 
the  sureties  will  pay  any  judgment  that 
may  be  recovered  against  the  maker  of  the 
note,  such  sureties  cannot,  on  paying  the 
judgment,  be  subrogated  to  any  right  not 
/possessed  by  their  principal,  and  they  can- 
not take  an  assignment  of  the  judgment 
and  enforce  it  against  the  indorser.  March 
V.  Barnet,  121  Cal.  419;  66  Am.  St.  Rep. 
44;  53  Pac.  933.  In  an  action  by  a  surety 
to  have  the  amount  due  the  creditor  ascer- 
tained, and  to  compel  the  principal  to  pay 
the  same,  the  creditor  may  set  up  the  obli- 
gation and  obtain  judgment  for  the  amount 
due  him;  and  the  plaintiff  having  brought 
the  suit,  asking  relief  in  equity,  the  court, 
having  obtained  jurisdiction,  will  decide 
the  whole  case,  and  not  permit  litigation 
by  piecemeal.  McDougald  v.  Hulet,  132 
Cal.  154;  64  Pac.  278.  Where  a  void  judg- 
ment is  entered  against  a  surety  upon  an 
undertaking  on  appeal,  which  the  surety 
voluntarily  pays,  the  principal  to  the  under- 
taking, who  had  indemnified  the  surety 
against  loss,  cannot  maintain  a  suit  in 
equity  to  charge  the  custodians  of  the 
money,  as  trustees  for  the  surety,  and  for 
its  repayment  to  the  surety.  More  v. 
Churchill,  155  Cal.  368;  101  Pac.  9. 

General  principles  of  interpleader  and  when 
maintainable.    See  note  35  Am.  Dec.  695. 

Right  of  interpleader.  See  note  91  Am.  St. 
Rep.  593. 

Necessity  that  bill  or  complaint  in  interpleader 
show  that  alleged  claim  has  reasonable  basis  on 
which  to  rest.      See  note  Ann.  Cas.  19130,  1)96. 

Interpleader  by  one  karing  contract  with  one 
of  parties  defining  his  rights  or  obligations  as  to 
subject-matter.    See  note  10  L.  R.  A.  (N.  S.)  748. 

CODE  COMMISSIONERS'  NUTE.  Smith  v. 
Sparrow,  13  Cal.  596;  King  v.  Hall,  5  Cal.  82; 
Dane  v.  Corduan,  24  Cal.  157;  85  Am.  Dec.  53. 


§  663,  as  amended  by  Stats.  1S."4,  Redding  ed. 
p.  73,  Kerr  ed.  p.  102,  §  75,  which  read:  "On 
the  trial  of  any  action  iii  a  court  of  record,  either 
party  may  require  the  clerk  to  take  down  the 
testimony  in  writing." 

Testimony  taken  down  by  clerk.     Testi- 
mony  taken   down   by   the   clerk,   and    his' 


1205  REGISTRY   OF  ACTIONS — REFEREES — TIME  EXTENDED.       §§  1052-1054 

statement    in    respect    to    the    decision    of  is    sufficient,    the     evidence    being    in    the 

court,   cannot   take   the   place  of   a  bill   of  transcript:  the  statement  need  not  contain 

exceptions,  nor  be  used  as  a  record  on  ap-  the  evidence.     Darst  v.  Rust,  14  Cal.  81. 
peal.    Gunter  v.  Geary,  1  Cal.  462;   Pierce  qode    COMMISSIONEES'    NOTE.     The    evi- 

V.  Minturn,  1  Cal.  4(U;  Castro  v.  Arniesti,  deiut-  taktn  down  by  tin-  cl.rk  is  no  part  of  the 

14  Cal.  38.     A  reference,  in  a  statement  on  io<ord,  unlcs.s  maJe  so  by  »  bill  of  t-xctptions. 

appeal,  to  the  evidence  as  taken  down  by  Wilson  v^  Mi.ldloton,  2  Cal.  54;  Pierce  v.  Min- 

./ i      ,'  ...     ,,  i.      i!   ii  i-  turn,    1   Cal.   470;    Gunter   v.   Geury,    1    Cal.   4t>i; 

the  clerk,  with  the  consent  or  the  parties,  Castro  v.  Armesti,  14  Cal.  38. 

§  1052.  The  clerk  must  keep  a  register  of  actions.  The  clerk  must  keep 
anione:  the  records  of  the  court  a  register  of  actions.  He  must  enter  therein 
the  title  of  the  action,  with  brief  notes  under  it,  from  time  to  time,  of  all 
papers  filed  and  i)roceedings  had  therein. 

Records  of  court.   Ante,  §§  668,  672,  633.  in    the    register   are    those   which    form    a 

Legislation  8  1052.  Enacted  March  11.  1872  proper  connection  between  the  pleadings 
(based  on  Pr;icticH  Act,  §  528),  substituting  and  the  judgment,  and  such  that  the  legis- 
"musf '  for  "shall,"  in  both  instances.  ^.^^^^^  j^^g  deemed  proper  to  be  evidenced 

What  must  be  set  out  in  register  of  ac-  by  a  permanent  memorandum  thereof.  Von 
tions.     The  matters  required  to  be  set  out       iSchmidt  v.  Widber,  99  Cal.  511;  34  Pac.  109. 

§  1053.  Two  of  three  referees,  etc.,  may  do  any  act.  When  there  are 
three  referees,  or  three  arbitrators,  all  must  meet,  but  two  of  them  may  do 
any  act  which  might  be  done  by  all. 

References,     and     trials     by    referees.     Ante,  Legislation  8  1053.     Enacted  March   11,   1872 

§§  638-645.  (ba.sed     on     Practice     Act,     §     529),     substituting 

■   Arbitrations,  generally.    Post,  §§  1231-1290.  "must"  for  "shall." 

§  1054.  Time  within  which  an  act  is  to  be  done  may  be  extended.  When 
an  act  to  be  done,  as  provided  in  this  code,  relates  to  the  pleadings  in  the 
action,  or  the  undertakings  to  be  filed,  or  the  justifications  of  sureties,  or 
the  preparation  of  bills  of  exceptions,  or  of  amendments  thereto,  or  to  the 
service  of  notices  other  than  of  appeal,  the  time  allowed  by  this  code,  unless 
otherwise  expressly  provided,  may  be  extended,  upon  good  cause  shown,  by 
the  judge  of  the  superior  court  in  and  for  the  county  in  which  the  action  is 
pending,  or  by  the  judge  who  presided  at  the  trial  of  said  action;  but  such 
extension  shall  not  exceed  thirty  days,  without  the  consent  of  the  adverse 
party ;  except  that  when  it  appears  to  the  judge  to  whom  said  application 
is  made,  that  the  attorney  of  record  for  the  party  applying  for  said  exten- 
sion is  actually  engaged  in  attendance  upon  a  session  of  the  legislature  of 
this  state,  as  a  member  thereof;  in  which  case  it  shall  be  the  duty  of  said 
judge  to  extend  said  time  until  said  session  of  the  legislature  adjourns,  and 
thirty  days  thereafter. 

Time.  not    exceed    thirty    days,    beyond    the    time    pre- 

1.  Computation  of  time.    See  ante,  §  12.  scribed   by   this   act,   without    the   consent   of   the 

2.  Extension  of.   Ante,  §  473.  adverse   party."      When   enacted   in   1872,    §  1054 
Continuance    during    attendance    upon    legislai-  read   as    follows:    "When   the   act   to   be   done   re- 

ture.     See  ante,  §  595.  lates  to  the  pleadings  in  the  actfon,  or  the  under- 
takings to  be  filed,  or  the  justification  of  sureties, 

Legislation    §    1054.       1.   Enacted     March     11,  or    the    service    of   notices,    other    than    of    appeal, 

1872;  based  on  Practice  Act,   §  530    (New  York  the    time    allowed   by   this   code   may,    before    the 

Code,  §  407),   as  amended  by  Stats.   1S61,  p.  591,  time     expires,     be     extended,     upon"    good     cause 

which    read:    "The   time   within    which    an    act    is  shown,  by  the  court  in  which  the  action   is  pend- 

to  be  done,  as  provided  in  this  act,   shall  be  com-  ing,    or    the    judge    thereof,     but    such    extension 

puted   by   excluding    the    first   day,    and    including  cannot  exceed   twentv  days." 

the   last;    if   the   last   day   be    Sunday,    it    shall   be  2.  Amended  by  Code  Amdts.  1873-74.  p.  344, 

excluded.     When   the  act   to  be  done  relates   to  the  (1)    changing    "the"    to    "an"    before    "act,"     (2) 

pleadings    in    the  action,  or  the   undertakings    to  be  inserting    (a)     "the"    before    "sureties,"     (b)    "as 

filed,    or   the   justification   of   sureties,    or    the   ser-  provided    in    this    code"    after    "to    be    done."    and 

vice  of  notices,  other  than  of  appeal,  or  the  prep-  (c)    "the  preparation  of  statements,  or  of  bills  of 

aration   of    statements,    or   of   bills    of    exceptions,  exceptions,    or    of    amendments    thereto,    or    to," 

or    of   amendments    thereto,    the    time    allowed    by  after    "sureties,"    (3)    omitting    "before    the    time 

this  act   may  be  extended,  upon  good  cause  shown,  expires"  before  "be  extended,"    (4)   inserting  "or, 

by   the   court    in   which   the   action   is   pending,    or  in   the  absence  of  such  judge   from   the   county  in 

the   judge   thereof,  or  in  the  absence   of   such  judge  which     the  action  is  pending,  by  the  county  judge." 

from   the   county   in   which   the   action   is   pending,  after    "judge    thereof,"    (5)    substituting    "thirty" 

by    the   county    judge;    but    such    extension    shall  for    "twenty"    before    "days,"    and     (6)     adding 


§1054 


GENEKAL    PROVISIONS. 


1206 


"without  the  consent  of  the  adverse  party,"  at 
the  end  of  section. 

3.  Amended  by  Code  Amdts.   1880,  p.   7,  (1) 

changing  "the"  to  "a,"  before  "judge  thereof,"  and 
(2)  omitting  "or  in  the  absence  of  such  judge 
from  the  county  in  which  the  action  is  pending, 
by  the  county  judge." 

4.  Amended  by  Stats.  1889,  p.  45,  substitut- 
ing "the  judge  of  the  superior  court  in  and  for 
the  county  in  which  the  action  is  pending,  or  by 
the  judge  who  presided  at  the  trial  of  said  ac- 
tion" for  "court  in  which  the  action  is  pending 
or  a  judge  thereof." 

5.  Amended  by  Stats.  1895,  p.  12,  adding 
the  exception. 

6.  Amendment  by  Stats.  1901,  p.  182;  un- 
constitutional.    See  note  ante,  §  5. 

7.  Amended  by  Stats.  Extra  Sess.  1906,  p.  9, 

(1)  in  first  clause,  substituting  "justifications" 
for  "justification,"  in  the  phrase  "or  the  justifi- 
cations of  sureties";  (2)  adding  a  proviso,  at 
the  end  of  the  exception  added  in  1895,  reading, 
"provided,  however,  that  from  and  after  the 
passage  of  this  act  to  and  including  tiie  twenty- 
eighth  day  of  February,  nineteen  hundred  and 
seven,  the  judge  shall  have  power  to  extend  the 
foregoing  time  as  to  any  matter  enumerated  in 
this  section  for  not  exceeding  ninety  days,  and 
shall  also  have  power  during  said  period  to  ex- 
tend by  order,  for  not  exceeding  ninety  days, 
the  time  for  filing  and  serving  notices  of  appeal 
and  for  the  performance  of  any  act  in  any  action 
or  special  proceeding  required  by  this  code  to 
be  done  within  a  specified  time." 

8.  Amended  by  Stats.  1915,  p.  203,  (1)  in 
first  clause,  (a)  striking  out  "of  statements,  or," 
from  the  phrases  "or  the  preparation  of  state- 
ments, or  of  bills  of  exceptions,"  and  (b)  in- 
serting "unless  otherwise  expressly  provided," 
after  the  words  "the  time  allowed  by  this  code"  ; 

(2)  striking  out  the  proviso  added  in  1906 
(which  see,  par.  7,  supra). 

Construction  of  section.  There  is  no 
time  "within  which  an  act  is  to  be  done," 
within  the  meaning  of  this  section;  hence, 
it  has  no  application  in  the  case  of  publica- 
tion of  summons.  Savings  and  Loan  Society 
V.  Thompson,  32  Cal.  347.  This  section 
simply  limits  the  power  of  the  court  to 
extend  the  time  for  giving  notices  or  for 
the  service  of  proposed  statements  or  bills 
of  exception  without  the  consent  of  the  ad- 
verse party;  it  does  not  limit  the  authority 
of  attorneys  under  §  283,  ante,  nor  pre- 
scribe the  exclusive  mode  for  giving  notices 
or  making  service.  Simpson  v.  Budd,  91 
Cal.  488;  27  Pac.  758.  The  provision  of 
§  940,  ante,  that  an  appeal  is  ineffectual 
for  any  purpose  unless  an  undertaking  is 
filed  within  five  days,  is  subject  to  the 
provision  of  this  section,  that  the  time 
for  filing  an  execution  may  be  extended 
not  exceeding  thirty  days.  Wadsworth  v. 
Wadsworth,  74  Cal.  104;  15  Pac.  447. 
Where  the  time  for  the  doing  of  an  act 
has  not  been  extended  by  order  of  court, 
such  act  must  be  done  within  the  time  pre- 
scribed. Tregambo  v.  Comanche  Mill  etc. 
Co.,  57  Cal.  501. 

Application  of  section.  This  section  is 
limited,  by  its  terms,  to  cases  where  time 
is  allowed  by  some  provision  of  the  code 
for  the  doing  of  some  act,  and  was  de- 
signed to  enable  the  court  or  judge  to 
grant  time  additional  to  that  allowed  by 
the  code,  upon  good  cause  shown.  Vestal 
V.  Young,  147  Cal.  715;  82  Pac.  381.  It 
has  no   application  to  an   act  required  to 


be  done  in  a  justice's  court,  in  order  to 

perfect  an  appeal  to  the  superior  court; 
hence,  an  order  by  the  superior  court,  ex- 
tending the  time  for  the  justification  of 
the  sureties  on  an  undertaking  on  appeal, 
filed  in  a  justice's  court,  is  void.  Mc- 
Cracken  v.  Superior  Court,  86  Cal.  74;  24 
Pac.  845.  Nor  has  this  section  any  appli- 
cation to  the  time  which  the  court  may 
allow  in  which  the  plaintiff  may  file  an 
amended  complaint;  and  the  extension  of 
time  allowed  therefor  is  within  the  dis- 
cretion of  the  court.  A^estal  v.  Young,  147 
Cal.  715;  82  Pac.  381.  The  service  and 
filing  of  a  memorandum  of  costs  is  fairly 
within  a  proper  construction  of  this  sec- 
tion, being  substantially  a  notice  "other 
than  of  appeal."  Beilby  v.  Superior  Court, 
138  Cal.  51;  70  Pac.  1024. 

Power  of  court  to  extend  time.  Where 
time  has  been  extended  by  stipulation  of 
the  parties,  the  court  has  power  to  grant 
a  further  extension,  not  exceeding  thirty 
days,  if  the  application  is  made  before  the 
time  as  extended  by  stipulation  has  ex- 
pired. Curtis  V.  Superior  Court,  70  Cal. 
390;  11  Pac.  652.  The  consent  of  the 
adverse  party  to  one  extension  of  time 
beyond  thirty  days  does  not  give  the  judge 
any  additional  authority  to  make  any  fur- 
ther extensions.  Bunnel  v.  Stockton,  83 
Cal.  319;  23  Pac.  301.  An  extension  of 
time  to  plead,  for  a  certain  time  after 
the  receipt  of  the  remittitur  in  another 
case,  is  void,  and  beyond  the  power  of  the 
court,  to  any  extent  beyond  the  thirty 
davs  permitted  by  this  section.  Baker  v. 
Superior  Court,  71  Cal.  583;  12  Pac.  685. 
In  cases  to  which  this  section  applies,  an 
extension  can  be  granted  only  within  the 
period  during  which  the  right  to  give  a 
notice  is  still  alive.  Union  Collection  Co. 
V.  Oliver,  162  Cal.  755;  124  Pac.  435.  It 
is  essential  that  any  order  extending  time 
shall  be  made  before  the  party  seeking 
such  extension  is  in  default;  and  if  he 
permits  the  time  within  which  he  may  act 
to  elapse  without  acting,  any  subsequent 
order  giving  him  time  to  act  does  not 
avail  to  revive  his  right.  Freese  v.  Freese, 
134  Cal.  48;  66  Pac.  43.  Where  the  stat- 
ute absolutely  fixes  the  time  within  which 
an  act  must  be  done,  it  is  peremptory;  the 
act  cannot  be  done  at  any  other  time, 
unless  during  the  prescribed  time  it  has 
been  extended  by  an  order  made  for  that 
purpose,  under  authority  of  law.  Connor 
v.  Southern  California  Motor  Road  Co., 
101  Cal.  429;  35  Pac.  990;  and  see  Tre- 
gambo V.  Comanche  Mill  etc.  Co.,  57  Cal. 
501;  Wills  V.  Rhen  Kong,  70  Cal.  548;  11 
Pac.  780.  When  a  statute  fixes  the  time 
within  which  an  act  must  be  done,  the 
court  has  no  power  to  enlarge  it,  although 
it  relates  to  a  mere  matter  of  practice; 
thus,  where  a  statute  declares  that  a  judge 
at  chambers  may  grant  a  new  trial  if 
application  is  made  within  ten  days  aftef 
judgment,   an   order   granting   an   applica- 


1207 


TIME  TO  PLEAD NEW  TRIAL — BILL. 


1054 


tion,  made  on  the  eleventh  day,  is  void. 
Roush  V.  Van  Hagen,  17  Cal.  12L  The 
statute  providing  that  an  act  must  be  done 
within  a  certain  time,  or  within  such  fur- 
ther time  as  may  be  granted,  is  per- 
emptory, and  an  omission  to  perform  the 
act  is  a  waiver  of  the  right  conferred. 
Easterby  v.  Larco,  24  Cal.  179.  An  order 
extending  time  cannot  be  made  by  a  dis- 
qualified judge.  Johnson  v.  German  Ameri- 
can Ins.  Co..  150  Cal.  336;  88  Pae.  985. 

Time  to  plead.  An  order  extending  the 
time  of  the  moving  party  to  plead,  until 
one  day  after  the  decision  of  the  motion 
to  vacate  the  service  of  summons,  is  an 
attempt  to  extend  the  time  to  plead,  be- 
yond the  thirty  days,  without  the  consent 
of  the  plaintiff,  and  is  void.  Kennedy  v. 
Mulligan,  136  Cal.  556;  69  Pac.  291.  An 
order  extending  the  time  to  answer,  until 
after  the  decision  of  a  motion  relating  to 
the  complaint,  but  not  fixing  the  date  for 
filing  the  answer,  must  be  held  to  grant 
such  time  as  the  court  might  fix  when  it 
ruled  upon  such  motion,  or  in  case  no  time 
was  then  fixed,  a  reasonable  time  there- 
after, which,  by  analogy,  would  be  the 
statutory  time  allowed  for  answering  in 
other  cases;  hence,  a  default  entered  im- 
mediately after  the  denial  of  such  motion 
is  unauthorized.  Willson  v.  Cleaveland,  30 
Cal.  192.  Orders  attempting  to  extend 
the  time  to  plead,  more  than  thirty  days, 
are  in  excess  of  jurisdiction,  and,  there 
being  no  plain,  speedy,  and  adequate  rem- 
edy, are  reviewable  on  certiorari.  Gibson 
v."  Superior  Court,  83  Cal.  643;  24  Pac. 
152;  Baker  v.  Superior  Court,  71  Cal.  583; 
12  Pac.  685.  The  fact  that  the  defendant 
relied  upon  an  order  extending  his  time 
to  plead,  which  was  in  excess  of  the  juris- 
diction of  the  court,  is  an  important  fact 
to  be  considered  upon  a  motion  to  set  aside 
a  default.  Kennedy  v.  Mulligan,  136  Cal. 
556;  69  Pac.  291.  No  advantage  can  be 
taken  of  the  court's  act  in  extending  time 
to  plead,  demur,  or  move,  beyond  thirty 
days,  if  within  the  time  covered  by  stipu- 
lation between  the  parties.  Voorman  v. 
Superior  Court,  149  Cal.  266;  86  Pac.  694. 

Notice  of  motion  for  new  trial.  Before 
the  expiration  of  the  ten  days  allowed  by 
statute  within  which  to  move  for  a  new 
trial,  the  court,  or  a  judge  thereof,  may 
extend  the  time,  not  exceeding  thirty 
days,  within  which  to  serve  and  file  a 
notice  of  the  motion;  but  such  extension 
cannot  be  made  after  the  time  fixed  by 
statute  has  expired.  Burton  v.  Todd,  68 
Cal.  485;  9  Pac.  663.  The  time  for  service 
of  notice  of  intention  to  move  for  a  new 
trial  may  be  extended  within  the  limits 
of  this  section.  Estate  of  Richards,  154 
Cal.  478;  98  Pac.  528.  The  time  named  in 
an  order  extending  the  time  to  give  notice 
of  intention  to  move  for  a'  new  trial  com- 
mences to  run  at  the  expiration  of  the  ten 
days  allowed  by  statute  for  the  notice,  no 


reference  having  been  made  to  the  date 
of  the  order  as  the  i>oint  of  time  from 
which  the  extension  was  to  be  computed. 
Emeric  v.  Alvarado,  64  Cal.  529;  2  Pac. 
418.  An  order  extending  the  time  to 
prepare  and  file  a  motion  for  a  new  trial 
has  the  effect  of  extending  the  time  to 
prepare  and  file  a  notice  of  motion  for 
such  new  trial.  Cottle  v.  Leitch,  43  Cal. 
320.  Where  the  transcript  fails  to  show 
that  any  objection  was  made  in  the  trial 
court  to  the  hearing  of  a  motion  for  a  new 
trial  on  the  ground  that  it  came  too  late, 
the  appellate  court  will  presume  that  the 
time  was  extended  by  consent  of  the  par- 
ties. Patrick  v.  Morse,  64  Cal.  462;  2  Pac. 
49. 

Statement  and  bill  of  exceptions  on  mo- 
tion for  new  trial.  This  section  has  no 
applicability,  where  express  provision  is 
made  for  a  particular  subject  in  another 
section;  as,  where  the  section  regarding 
the  time  for  filing  a  statement  on  motion 
for  a  new  trial  provides  that  no  extension 
for  a  longer  period  than  twenty  days  shall 
be  made.  Cottle  v.  Leitch,  43  Cal.  320. 
The  judge  who  tries  the  case  has  power 
to  make  tin  order  extending  the  time  to 
prepare  and  serve  a  statement  or  bill  of 
exceptions  on  motion  for  a  new  trial. 
Matthews  v.  Superior  Court,  68  Cal.  638; 
10  Pac.  128.  An  order  extending  the  time 
within  which  to  prepare  a  statement  on 
motion  for  a  new  trial,  carries  with  it  the 
same  extension  of  time  to  serve  the  state- 
ment. Bryant  v.  Sternfeld,  89  Cal.  611; 
26  Pac.  1091.  The  time  to  prepare  and 
serve  a  bill  of  exceptions  may  be  extended 
thirty  days,  in  addition  to  the  ten  days 
allowed  bv  §  659,  ante.  Moffat  v.  Cook, 
65  Cal.  236;  3  Pac.  805.  A  judge  cannot 
grant  an  extension  of  time  to  present  a 
bill  of  exceptions,  exceeding  in  the  aggre- 
gate a  period  of  thirty  days,  without  the 
consent  of  the  opposite  party;  nor  can  he 
grant  two  or  more  extensions  of  thirty  days 
each,  nor  an  extension  of  time  after  the 
moving  party  has  made  default.  Cameron 
V.  Areata  etc.  R.  R.  Co.,  129  Cal.  279;  61 
Pac.  955.  An  extension  of  time  in  which 
to  prepare  a  statement  on  motion  for  a 
new  trial,  though  within  the  limit  of 
thirtj'  days,  is  void,  if  the  time  previously 
allowed  to  the  moving  party  had  fully 
elapsed  while  the  mover  was  in  default. 
Freese  v.  Freese,  134  Cal.  48;  66  Pac.  43. 
An  order  granting  a  party  time  within 
which  to  file  a  statement  to  be  used  on  a 
motion  for  a  new  trial,  made  before  a 
notice  of  intention  to  move  for  a  new  trial 
has  been  given,  must  be  construed  as  ex- 
tending the  time  from  the  date  of  the 
order,  and  not  from  the  time  the  notice 
is  given.  Easterby  v.  Larco,  24  Cal.  179; 
Jenkins  v.  Frink,  27  Cal.  337.  Proposing 
amendments  to  a  statement  on  motion  for 
a  new  trial,  filed  too  late,  will  not  operate 
as  a  consent  to  a  void  extension  of  time, 


1054 


GENERAL   PROVISIONS. 


1208 


if  an  objection  is  at  the  time  expressly  re- 
served: the  better  practice  is,  to  reserve 
such  objection,  rather  than  to  move  to 
strike  the  statement  from  the  files.  Cottle 
v.  Leitch,  43  Cal.  320.  The  court  has 
power,  under  this  section  and  the  third 
subdivision  of  §  6.59,  ante,  to  extend  the 
time  within  which  to  give  notice  of  the 
time  for  presenting  a  proposed  statement 
on  motion  for  a  new  trial,  and  amendments 
thereto,  to  the  judge  for  settlement,  and 
to  extend  the  time  for  the  settlement  of 
the  same  for  a  corresponding  period,  the 
only  requisite  being  that  when  such  notice 
is  given,  the  adverse  party  must  have  five 
days'  notice  of  the  presentation.  Douglas 
v.  Southern  Pacific  Co.,  151  Cal.  242;  90 
Pae.538. 

Statement  on  appeal.  Neither  the  court 
nor  judge  has  power  to  extend  the  time 
for  appellant  to  make  and  file  a  statement 
on  appeal  from  a  judgment  more  than 
thirty  days  beyond  the  twenty  days  al- 
lowed by  law,  without  the  consent  of 
the  other  party;  but  an  order  extending 
the  time  more  than  thirty  days  beyond  the 
twenty  days  allowed  by  law,  is  good  for 
the  thirty  days,  without  the  consent  of 
the  other  party.  Bryan  v.  Maume,  28  Cal. 
238.  An  adverse  party  does  not  consent 
to  an  extension  of  time  for  more  than 
thirty  days  because  he  fails  to  object 
thereto;  nor,  if  a  statement  on  appeal  is 
not  filed  and  served  in  time,  does  he  waive 
the  default  by  not  returning  the  copy  of 
the  statement  served  on  him.  Bryan  v. 
Maume,  28  Cal.  238. 

Afladavits  on  motion  for  new  trial.  An 
application  for  an  extension  of  time  within 
which  to  file  aflSdavits  on  motion  for  a 
new  trial  should  show  substantially  what 
the  intended  afilda^its  will  contain;  should 
indicate  the  misconduct  of  the  jury; 
should  state  the  nature  of  the  newly  dis- 
covered evidence,  etc.  People  v.  Win- 
throp,  118  Cal.  85;  50  Pae.  390.  Under  the 
first  subdivision  of  §  659,  ante,  the  court 
has  power  to  extend  the  time  for  filing 
affidavits  on  motion  for  a  new  trial  to 
more  than  thirty  days  beyond  the  statu- 
tory time:  the  limitation  on  the  court's 
power  of  extending  time  in  other  classes 
of  cases,  imposed  by  §  1054,  has  no  appli- 
cation to  such  a  case.  Oberlander  v.  Fixen, 
129  Cal.  690;  62  Pac.  254. 

Notice  of  appeal.  The  reason  for  ex- 
cepting matters  of  appeal  from  the  power 
to  extend  the  time  was,  that  to  allow  an 
extension  of  time  to  file  a  notice  of  appeal 
would  be,  virtually,  to  allow  the  court  the 
power  to  extend  the  time  for  taking  an 
appeal.    Hari(er  v.  Minor,  27  Cal.  107. 

To  file  undertaking  on  appeal.  The  time 
to  file  an  undertaking  on  appeal  may  be 
extended.  Schloesser  v.  Owen,  134  Cal. 
546;  66  Pac.  720. 

Notices  other  than  of  appeal.  Under  this 
section,  the  power  given  to  superior  courts, 


and  the  judges  thereof,  to  extend  the  time 
for  the  service  of  notices,  other  than 
notices  of  appeal,  includes  the  power  to 
extend  the  time  for  filing  such  notices. 
Burton  v.  Todd,  68  Cal.  485;  9  Pac.  663. 
Under  this  section,  there  may  be  an  ex- 
tension of  time  in  which  to  give  actual 
notice.  Douclas  v.  Southern  Pacific  Co., 
ISlCal.  242;  90Pac.  538. 

Order  may  be  made  where.  An  order 
extending  time  need  not  be  made  in  court: 
it  may  be  made  in  any  part  of  the  state, 
bv  the  jvidge  of  the  court.  Matthews  v. 
Superior  Court,  68  Cal.  638;  10  Pac.  128. 

Made  how.  An  order  extending  the  time 
fixed  by  statute  should,  in  all  cases,  be  in 
writing,  and  either  entered  on  the  minutes 
of  the  court,  in  open  session,  or  signed  by 
the  judge,  and  filed  with  the  papers  in  the 
case  within  the  time  prescribed.  Camp- 
bell V.  Jones,  41  Cal.  515.  Although  the 
code  does  not  require  that  an  order  extend- 
ing time  shall  be  filed  or  served,  yet  the 
correct  practice  is  to  file  and  serve  it;  and 
where  a  default  was  entered  before  the 
expiration  of  the  time  as  extended,  the 
plaintiff  being  ignorant  of  the  order,  it 
should  be  opened  upon  pavment  of  costs. 
Swift  V.  Canovan,  47  Cal.  86^. 

Computation  of  time.  Where  the  last 
day  of  the  period  of  extension  fixed  by 
an  order  is  Sunday,  that  day  should  be 
excluded;  that  is  to  say,  it  is  not  to  be 
computed  as  any  portion  of  the  time 
granted  by  the  order,  but  is  a  supplemen- 
tary day  superadded  by  law.  Muir  v.  Gal- 
loway, 61  Cal.  498.  Where  the  time  in 
which  to  serve  a  bill  of  exceptions,  as  ex- 
tended by  order  of  the  court,  expires  on 
Sunday,  the  moving  party  has  the  follow- 
ing Monday  in  which  to  make  the  service; 
and,  notwithstanding  previous  orders  have 
been  made  extending  the  time  for  service 
for  twenty  days,  the  court  has  power,  on 
such  Monday,  to  grant  a  further  extension 
of  ten  days.  Frassi  v.  McDonald,  122  Cal. 
400;  55  Pac.  139.  A  stipulation  extend- 
ing the  time  to  answer  for  the  week  end- 
ing July  4th,  that  day  and  the  next  being 
holidays,  has  the  effect  of  permitting  an 
answer  to  be  filed  on  Monday,  .July  6th, 
and  a  default  entered  on  that  day  is  pre- 
mature. Crane  v.  Crane,  121  Cal.  99;  53 
Pac.  433.  A  fraction  of  a  day  may  be 
regarded  when  the  question  relates  to  the 
relative  order  of  occurrences  happening  on 
the  same  day,  involving  the  legality  or 
priority  of  prior  rights;  but  it  is  not  to  be 
regarded  when  measuring  or  computing  the 
time  from  one  date  to  another.  Scoville 
v.  Anderson,  131  Cal.  590;  63  Pac.  1013. 

Power  of  judge  pro  tem.  to  extend  time  given 
for  preparing  or  filing  bill  of  exceptious.  See 
note  42  L.  K.  A.   (N.  S.)   623. 

CODE  COMMISSIONEKS'  NOTE.  Computa- 
tion of  time.  See  §  12  of  this  code,  and  note. 
Tlie  word  "month"  means  a  calendar  month,  un- 
less otherwise  expressed.  §  17,  subd.  6,  of  this 
code;  Savings  and  Loan  Society  v.  Thompson, 
32  Cal.  347. 


1209 


OFFICIAL  ACTS — INDEMNITY    BOND — SURETIES.  §§  1055,  1056 


§  1055.  Action  against  oflficer  for  official  acts.  If  an  action  is  broucrht 
aerainst  any  officer  or  person  ioi-  an  act  I'or  tl'.e  doing  of  which  he  had  there- 
tofore received  any  valid  bond  or  covenant  of  indemnity,  and  he  gives  sea- 
sonable notice  thereof  in  writing  to  the  persons  who  executed  such  bond  or 
covenant,  and  permits  them  to  conduct  the  defense  of  sucli  action,  tlie  judg- 
ment recovered  therein  is  conclusive  evidence  against  the  persons  so  notified ; 
and  the  court  may,  on  motion  of  the  defendant,  upon  notice  of  five  days,  and 
upon  proof  of  such  bond  or  covenant,  and  of  such  notice  and  permission, 
enter  judgment  against  them  for  the  amount  so  recovered  and  costs. 

unless  he  gave  them  written  notifp  of  the 
action  against  him.  Dennis  v.  Packard  2S 
Cal.  101. 

Judgment  on  Indemnifying  bond.  A  mo- 
tion for  a  judgment  against  the  sureties 
on  an  indemnity  bond  may  be  made  under 
this  section,  although  the  judgment  is  a 
several  judgment,  in  dififerent  amounts, 
against  the  sureties  on  the  bon.l,  the  obli- 
gation of  the  sureties  being  for  several 
different  amounts,  for  which  they  have 
become  liable  on  the  bond.  This  section 
should  be  construed  as  authorizing  the  en- 
try of  judgment  against  the  sureties  for 
the  amount  named  in  the  bond,  and  for 
which  each  has  become  liable,  but  not  to 
exceed  the  amount  recovered,  including 
costs  of  the  action.  Moore  v.  McSleeper', 
102  Cal.  277;  36  Pae.  593.  The  provision 
of  this  section,  making  the  judgment  con- 
clusive evidence  against  the  indemnifier, 
when  notified  of  the  action,  is  founded 
upon  the  principle,  that,  under  such  cir- 
cumstances, the  action  is,  in  substance, 
against  the  indemnifier,  and  that  he  has, 
in  that  action,  an  opportunity  to  make  any 
defense  that  may  exist;  therefore,  where 
the  indemnifier  has  been  notified  of  the 
action,  he  cannot  maintain  a  bill  in  equity 
to  set  aside  the  judgment,  except  under 
such  conditions  as  would  have  enabled  him 
to  maintain  it  had  he  been  the  nominal 
as  well  as  the  real  party  defendant  in  the 
first  action.  Dutil  v.  Pa\'heco,  21  Cal.  438; 
82  Am.  Dec.  749.  The  recovery  of  a  judg- 
ment against  a  sheriff  is  a  sufficient  show- 
ing for  a  prima  facie  case  against  the  sure- 
ties; and  the  burden  is  upon  them  to  show 
that  the  judgment  has  been  satisfied  by 
themselves,  or  by  a  return  of  the  property 
sued  for,  or  that  the  property  with  which 
to  satisfy  it  is,  or  sliould  be,  still  in  the 
l)ossession  of  the  sheriff.  Moore  v.  Mc- 
Sleeper, 102  Cal.  277;  36  Pac.  593. 

Conclusiveness  against  indemnitors  of  judg- 
ments against  principals.  See  note  22  Am.  St. 
Rep.  204. 

When  surety  becomes  liable  on  contract  of  in- 
demnity.   Seo  note  1  Am.   Dec.  4  7. 

Duty  and  liability  of  officer  on  receiving  a  bond 
of  indemnity.    .See  note  15  .\m.  .St.  Kep.  315. 

CODE  COMMISSIONERS'  NOTE.  Dennis  v. 
Packard,  28  Cal.  101;  Dutil  v.  Pacheco,  21  Cal. 
438;  82  Am.  Dec.  749.  .\u  indemnifying  bond 
takes  effect  from  its  delivery.  Buflfendeau  v. 
Brooks,  28  Cal.  641. 


Legislation  S  1055.  1.  Enacted  March  11, 
1873;  based  on  Practice  Act,  §  645,  which  road: 
"If  an  action  be  brought  against  a  sheriff  for  an 
act  done  by  virtue  of  his  office,  and  he  give 
•written  notice  thereon  (sic)  to  the  sureties  on 
any  bond  of  indemnity  received  by  him.  the 
judgment  recovered  therein  shall  be  conclusive 
evidence  of  his  right  to  recover  against  such 
sureties;  and  the  court  or  judge  in  vacation  may, 
on  motion,  upon  notice  of  five  days,  order  judg- 
ment to  be  entered  up  against  them  for  the 
amount  so  recovered,  including  costs."  When 
§  1055  was  enacted  in  1872,  (1)  "is"  was  sub- 
stituted for  "be"  before  "brought,"  (2)  "gives" 
for  "give,"  (3)  "thereof"  for  "thereon,"  and  (4) 
"is"  for  "shall  be"  before  "conclusive." 

3.  Amended  by  Code  Amdts.  1880,  p.  73,  sub- 
stituting (1)  "be"  for  "is"  before  "brought," 
(2)  "give"  for  "gives,"  and  (3)  "shall  be"  for 
"is"   before   "conclusive." 

3.  Amendment  by  Stats.  1901,  p.  182;  un- 
constitutional.    See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  309;  the  code 
commissioner  saying,  "The  amendment  extends 
the  provisions  of  the  section  to  all  persons  en- 
titled to  rely  upon  bonds  of  indemnity,  instead  of 
restricting  such  provisions  to  the  sheriff,  as  in 
the  present  section." 

Jurisdiction  of  motion  for  judgment.     A 

motion  for  a  several  judgment  against  the 
sureties  upon  an  indemnity  bond,  where 
the  several  liability  of  each  surety  is  less 
than  three  hundred  dollars,  is  not  without 
the  jurisdiction  of  the  superior  court,  the 
motion  not  being  an  independent  action 
against  the  sureties,  but  simply  a  supple- 
mental motion,  made  for  judgment  against 
the  sureties,  in  an  action,  of  which  the 
superior  court  had  jurisdiction,  and  in 
which  it  had  already  proceeded  to  judg- 
ment against  the  sheriff  as  a  defendant. 
Moore  v.  McSleeper,  102  Cal.  277;  36  Pac. 
593. 

Notice  to  indemnifi:er.  Full  notice  should 
be  given  to  the  indemnifier,  of  the  pen- 
dency of  the  suit,  what  will  be  required 
of  him,  and  the  consequences  liable  to 
follow  his  failure  to  defend  the  action; 
mere  knowledge  or  information  is  entirely 
insufficient;  and  unless  the  party  to  the 
action  so  notifies  the  indemnifier,  a  reason- 
able time  before  the  trial,  he  may  well 
suppose  that  the  party  needs  no  assistance 
from  him,  and  may  rely  upon  that  sup- 
position. Sampson  v.  Ohleyer,  22  Cal.  200. 
Where  judgment  is  recovered  against  a 
sheriff  for  an  act  done  by  virtue  of  his 
office,  he  cannot  afterwards  have  judg- 
ment against  the  sureties  on  the  indem- 
nifying bond  upon   a  notice  of  five  days, 

§  1056.     Corporations  may  become  sureties  on  imdertaking-s  and  bonds. 
In  all  eases  where  an  undertaking  or  bond,  with  any  number  of  sureties,  is 


§  1057  GENERAL.   PROVISIONS.  1210 

authorized  or  required  by  any  provision  of  this  code,  or  of  any  law  of  this 
state,  any  corporation  with  a  paid-up  capital  of  not  less  than  one  hundred 
thousand  dollars,  incorporated  under  the  laws  of  this  or  any  other  state  of 
the  United  States  for  the  purpose  of  making,  guaranteeing,  or  becoming  a 
surety  upon  bonds  or  undertakings  required  or  authorized  by  law,  or  which, 
by  the  laws  of  the  state  where  it  was  originally  incorporated  has  such  power, 
and  which  shall  have  complied  with  all  the  requirements  of  the  law  of  this 
state  regulating  the  formation  or  admission  of  these  corporations  to  transact 
such  business  in  this  state,  may  become  and  shall  be  accepted  as  security  or 
as  sole  and  sufficient  surety  upon  such  undertaking  or  bond,  and  such  cor- 
porate surety  shall  be  subject  to  all  the  liabilities  and  entitled  to  all  the 
rights  of  natural  persons'  sureties;  provided,  that  the  insurance  commis- 
sioner shall  have  the  same  jurisdiction  and  powers  to  examine  the  affairs 
of  such  corporations  as  he  has  in  other  cases;  shall  require  them  to  file 
similar  statements  and  issue  to  them  a  similar  certificate.  And  whenever 
the  liabilities  of  any  such  corporation  shall  exceed  its  assets,  the  insurance 
commissioner  shall  require  the  deficiency  to  be  paid  up  in  sixty  days,  and 
if  it  is  not  so  paid  up,  then  he  shall  issue  a  certificate  showing  the  extent 
of  such  deficiency,  and  he  shall  publish  the  same  once  a  week  for  three 
weeks,  in  a  daily  San  Francisco  paper.  And,  until  such  deficiency  is  paid 
up,  such  company  shall  not  do  business  in  this  state.  In  estimating  the  con- 
dition of  any  such  company,  the  commissioner  shall  allow  as  assets  only 
such  as  are  allowed  under  existing  laws  at  the  time,  and  shall  charge  as 
liabilities,  in  addition  of  eighty  per  cent  of  the  capital  stock,  all  outstanding 
indebtedness  of  the  company,  and  a  premium  reserve  equal  to  fifty  per 
centum  of  the  premiums  charged  by  said  company  on  all  risks  then  in  force. 

Legislation  §  1056.     Added    by    Stats.    1889,  corporation     surety,    by    its    second    viee- 

p.  215;  a  codification  of  the  act  of  Stats.  1885,  president  and  its  assistant  secretary,  with 

^f  'ltn^'^r:i\^t^'  '''Tl::'l%&rToll  the  seal  of  the  corporation  afBxed   will  not 

§  1056    (based  on  Practice   Act,  §  646)   was  re-  be  held  void,  as  not  being  properly  signed, 

pealed  by   Code   Amdts.    1880,    p.    Ill,    and   pro-  |^   ^.j^g    absence   of   anything   to   show   that 

r^hlanguigl  rthrtountLs^of''°Montere%,''sTn  such   officers  were  not   authorized   to   sign 

Luis    Obispo,    Santa    Barbara,    Los    Angeles,    and  and    deliver    the    undertaking.     Gutziel    V. 

San  Diego.  Pennie,  95  Cal.  598;  30  Pac.  836. 

Construction  of  code  sections.  The  pro-  Designation  of  agent  by  foreign  surety 
visions  of  this  section  and  §  1057,  post,  do  corporation.  When  a  foreign  surety  cor- 
not  make  the  acceptance  of  such  surety  poration  has  filed  with  the  insurance  corn- 
corporation  as  sole  and  sufficient  surety  missioner  the  designation  of  its  agent,  as 
upon  an  undertaking  imperative,  no  matter  required  by  §  616  of  the  Political  Code, 
what  the  disparity  between  its  amount  and  that  is  all  that  is  required  of  it  in  the 
the  amount  of  the  corporation  assets,  but  matter  of  naming  an  agent  upon  whom 
it  may  be  required,  upon  exception  to  its  process  may  be  served,  to  entitle  it  to  do 
sufficiency  as  surety,  under  §  948,  ante,  to  business  in  this  state;  and  the  certificate 
show  surplus  assets  equal  to  the  amount  of  the  commissioner  is  prima  facie  evi- 
of  its  undertaking.  Fox  v.  Hale  etc.  Min-  dence  that  the  surety  company  has  com- 
ing Co.,  97  Cal.  353;  32  Pac.  446.  plied  with  the  requirement  of  that  section, 

Execution   of   surety   bond.     An    under-  although    it    does   not   expressly   so    state, 

taking  on  appeal,  signed  in  behalf  of  the  Gutzeil  v.  Pennie,  95  Cal.  598;  30  Pac.  836. 

§  1057.  Undertakings  mentioned  in  this  code,  requisites  of.  In  any  case 
where  an  undertaking  or  bond  is  authorized  or  required  by  any  law  of  this 
state,  the  officer  taking  the  same  must,  except  in  the  case  of  such  a  corpora- 
tion as  is  mentioned  in  the  next  preceding  section,  require  the  sureties  to 
accompany  it  with  an  affidavit  that  they  are  each  residents  and  householders, 
or  freeholders,  within  the  state,  and  are  each  worth  the  sum  specified  in  the 
undertaking  or   bond,  over  and   above   all  their  just   debts   and  liabilities', 


1211 


UNDERTAKING — SURETY  COMPANY — JUSTIFICATION. 


§  1057 


exclusive  of  property  exenipt  from  execution  ;  but  when  the  amount  specified 
in  the  undertakin<;  or  bond  exceeds  three  thousand  dollars,  and  there  are 
more  than  two  sureties  thereon,  they  may  state  in  their  affidavits  that  they 
are  severally  worth  amounts  less  than  the  amount  specified  in  the  under- 
taking or  bond,  if  the  whole  amount  is  equivalent  to  that  of  two  sufficient 
sureties.  Any  eori)oration  such  as  is  mentioned  in  the  next  preceding  sec- 
tion, may  become  sole  surety  on  such  bond.  No  such  corporation  must  be 
accepted  in  any  case  as  a  surety  when  its  liabilities  exceed  its  assets  as 
ascertained  in  the  manner  provided  in  section  ten  hundred  and  fifty-six. 
Whenever  an  undertaking  has  been  given  and  approved  in  any  action  or 
proceeding,  and  it  is  thereafter  made  to  appear  to  the  satisfaction  of  the 
court  that  any  surety  upon  such  undertaking  has  for  any  reason  become 
insufficient,  the  court  may,  upon  notice,  order  the  giving  of  a  new  undertak- 
ing, with  sufficient  sureties,  in  lieu  of  such  insufficient  undertaking.  In  case 
such  new  undertaking  so  retiuired  shall  not  be  given  within  the  time  re- 
quired by  such  order,  or  in  case  the  sureties  thereon  fail  to  justify- 
thereon  when  required,  all  rights  obtained  by  the  filing  of  such  original 
undertaking  shall  immediately  cease. 


Applied  to  guardians.    Post,  §  1809. 

Legislation  §  1057.  1.  Enacted  March  11, 
l-875i;  based  on  Practice  Act,  §  050,  as  amended 
by  Stats.  1854,  Redding  ed.  p.  71.  Kerr  ed. 
p.  100,  §  62,  which  read:  "In  all  cases  where  an 
^indertaking  with  sureties  is  required  by  the  pro- 
visions of  said  act,  the  judge,  justice,  clerk,  or 
other  officer  taking  the  same,  shall  require  the 
sureties  to  accompany  the  same,  with  an  affidavit 
that  they  are  each  "worth  the  sum  specified  in 
the  undertaking,  over  and  above  all  their  just 
debts  and  liabilities,  exclusive  of  property  ex- 
empt from  execution ;  provided,  that  when  the 
amount  specified  in  the  undertaking  exceeds  three 
thousand  dollars,  and  there  are  more  than  two 
sureties  thereon,  they  may  state  in  their  affida- 
vits that  they  are  severally  worth  amounts  less 
than  that  expressed  in  the  undertaking,  if  the 
whole  amount  be  equivalent  to  that  of  two  suffi- 
cient sureties."  When  §  1057  was  enacted  in 
1872,  (1)  "this  code,  the"  was  substituted  for 
"said  act,"  (2)  the  words  "judge,  justice,  clerk, 
or  other"  were  omitted,  (3)  "must"  was  substi- 
tuted for  "shall,"  in  both  instances,  (4)  "it"  was 
substituted  for  "the  same"  after  "accompany," 
(5)  the  words  "are  each  residents  and  house- 
holders or  freeholders  within  the  state,  and"  were 
added,  and  (6)  "but"  was  substituted  for  "pro- 
vided  that"   before    "when   the   amount." 

3.  Amended  by  Stats.  1SS9.  p.  216,  to  read 
as  at  present,   except  for  the  amendment  of  1907. 

3.  Amendment  by  Stats.  1901,  p.  183 ;  un- 
constitutional.    See  note  ante,  §  5. 

4.  Amended  by  Stats.  1907,  p.  308,  (1)  sub- 
stituting (a)  "is"  for  "be"  before  "equivalent." 
(b)  "sole  surety  on  such  bond"  for  "one  of  such 
sureties,"  (c)  "must"  for  "shall"  before  "be  ac- 
cepted," (d)  "when"  for  "whenever"  before  "its 
liabilities,"  (e)  omitting  "shall"  before  "exceed," 
and  (2)  adding  the  last  two  sentences;  the  code 
commissioner  saying,  "'Hie  change  consists  in 
the  addition  of  the  last  two  sentences,  and  author- 
izes the  court  to  exact  a  new  undertaking  in  any 
case  in  which  it  is  shown  that  any  surety  on  a 
bond  has  become  insufficient,  thus  avoiding  all 
possible  doubt  of  the  court's  power  in  the  prem- 
ises." 

Sufficiency  of  undertaking.  An  affidavit 
to  a  stay  bond,  which  fails  to  state  that 
the  sureties  are  freeholders  or  householders, 
omits  an  element  essential  to  the  validity 
of  the  bond.  Maze  v.  Langford,  16  Cal. 
App.  743;  117  Pac.  92?.  An  undertaking 
on  attachment  is  insufficient  to  sustain  the 
writ,  if  the  affidavit  of  the  sureties  omits 


to  state  the  material  fact  that  they  are 
householders  or  freeholders;  and  a  writ 
issued  upon  an  undertaking,  not  accom- 
panied by  an  affidavit  of  the  sureties,  as 
required  by  this  section,  is  irregularly  and 
improperly  issued,  and  must  be  discharged 
upon  application.  Tibbet  v.  Tom  Sue,  122 
Cal.  206;  54  Pac.  741.  The  requirement 
of  this  section,  that  the  sureties  shall  jus- 
tify by  affidavit,  is  intended  solely  for 
the  protection  of  the  obligees;  and  it  does 
not  lie  in  the  mouth  of  the  sureties  to 
ob.iect  to  the  sufficiency  of  the  bond,  be- 
cause of  their  failure  to  comply  with  this 
provision.  Carpenter  v.  Furrey,  128  Cal. 
66.5;  61  Pac.  ."^69. 

Justification  and  qualification  of  sure- 
ties. A  prima  facie  justification  of  the 
sureties  is  established  by  the  affidavit 
required  by  this  section;  and  where  no 
counter-showing  is  made  against  the  suffi- 
ciency of  sureties,  the  justification  will 
be  deemed  complete.  Bank  of  Escondido 
V.  Superior  Court,  106  Cal.  43;  39  Pac.  211. 
The  qualification  of  sureties  on  a  bond,  as 
distinguished  from  their  justification,  is 
a  material  part  of  the  bond.  Maze  v.  Lang- 
ford,  16  Cal.  App.  743;  117  Pac.  929. 

Waiver  of  justification  of  sureties.  See 
note  ante,  §  97Sa. 

Bond  of  surety  corporation.  Surety  cor- 
porations are  exempted,  by  the  provisions 
of  this  section,  from  annexing  to  their 
undertakings  the  usual  affidavit  required 
of  natural  persons,  as  to  being  freeholders, 
etc.;  but  from  the  language  of  another 
provision  of  the  section,  it  seems  to  be 
implied  that  the  undertakings  of  such  a 
corporation  shall  be  accompanied  by  an 
affidavit  showing  that  its  liabilities  do  not 
exceed  its  assets,  computed  according  to 
the  rule  of  the  statute;  that  is.  the  corpo- 
ration may  execute  bonds  in  such  amount 
as  other  provisions  of  the  statute  author- 


§  1057a  GENERAL   PROVISIONS.  1212 

ize.  Fox  V.  Hale  etc.  Mining  Co.,  97  Cal.  householders,  the  defect  may  be  supplied 
353;  32  Pac.  446.  Any  corporation  organ-  by  filing  a  new  undertaking  in  the  appel- 
ized  for  the  purpose  of  carrying  on  the  late  court,  as  provided  by  §  954,  ante, 
business  of  becoming  a  surety  on  bonds  Schacht  v.  Odell,  52  Cal.  447. 
and  undertakings  is  included  within  the  cODE  COMMISSIONEES'  NOTE.  The  affi- 
term  "surety  companies,"  and  is  authorized  davit  is  sufficient  if  it  substantially  complies 
to  become  the  sole  surety  on  any  under-  with  this  section.  Taaffe  v.  Rosenthal,  7  Cal. 
takino-  or  hnTi<l  rpniiirPfl  hv  nnv  law  of  ^^^-  ^^  undertaking  stands  on  the  same  foot- 
taking   or    Donu   requirea    Dy   any   law   or  j,^^  ^^^^^  ^  ^^^_^^     Canfleld  v.  Bates,  13  Cal.  606. 

this  state,  and  may  be  accepted  as  such  if  the  undertaking  is  defective,  but  has  been 
bv    the    approving    authority    in    lieu    of    a        given    in    good     faith,     the    court    should    permit 

bond  with  natural  persons  as  sureties.    San  ^^%/^l7  J°.  ^.',^  ''ol^'^/;'!:}*   °T  J^l'T'^^'^^r^ 

T     .       „,  .  ,-.  ^  -.,         ,  -,  ^^    A>,    1  V-    Hopkins,   8   Cal.    33;    Coulter  v.   stark,    7    Cal. 

Luis    Obispo    County    v.    Murphy,    162    Cal.  244;    Bryan    v.    Berry,    8    Cal.    130.      An    under- 

5SS;  Ann.  Cas.  1913D,  712;  123  Pac.  808.  taking  executed  by  plaintiff  to  the  defendant  by 

Filing    of    new    undertaking.      Where    an  ?    ^V""S   name,    may    be    sued    upon    by    the    de- 

,   .      ^.         .  1      j^      ii  ^-    •  J.   ji  fendaut,   and  he  may  describe  it  as  given  to  him, 

objection  is  made  to  the  sufeeiency  of  the  and  show  that  he  was  the  party  intended.    Mor- 

undertaking,  as  that  the  aflBdavit  fails  to  gan  v.  Thrift,  2  Cal.  563. 
state  that  the  sureties  are  freeholders   or 

§  1057a.     Justification    by    corporate    security    on    bonds.     Procedure. 

County  clerk  to  issue  certificate.  Fee.  Whenever  the  surety  on  a  bond  or 
undertaking  authorized  or  required  by  any  law  of  this  state  is  a  corporation 
of  the  state  or  a  foreign  corporation,  authorized  to  become  surety  on  bonds 
or  undertakings  in  the'  state,  and  exception  is  taken  to  the  sufficiency  of 
such  surety  as  required  by  lav^^,  such  corporate  surety  may  justify  on  such 
bond  or  undertaking  as  follows: 

Any  agent,  attorney  in  fact,  or  officer  of  such  corporation  shall  submit  to 
the  court,  judge,  officer,  board  or  other  person  before  whom  the  justification 
is  to  be  made: 

First — The  original,  or  a  certified  copy  of,  the  power  of  attorney,  by-laws 
or  other  instrument  showing  the  authority  of  the  person  or  persons  who 
executed  the  bond  or  undertaking  to  execute  the  same ; 

Second — A  certified  copy  of  the  certificate  of  authority  issued  by  the 
insurance  commissioner  as  required  by  section  596  of  the  Political  Code, 
showing  that  the  corporation  is  authorized  to  transact  business ; 

Third — A  certificate  from  the  county  clerk  of  the  county  or  city  and 
county  in  which  the  bond  or  undertaking  is  filed,  showing  that  the  said 
certificate  of  authority  has  not  been  surrendered,  revoked,  canceled,  an- 
nulled or  suspended,  or  in  the  event  that  it  has  been,  that  renewed  author- 
ity to  act  under  such  certificate  has  been  granted,  as  provided  for  in  section 
625a  of  the  Political  Code ; 

Fourth — A  financial  statement  showing  the  assets  and  liabilities  of  such 
corporation  at  the  end  of  the  quarter  calendar  year  next  preceding  the  date 
of  the  execution  of  the  bond  or  undertaking ;  such  financial  statement  must 
be  verified  under  oath  by  the  president,  or  a  vice-president  and  attested  by 
the  secretary  or  an  assistant  secretary  of  such  corporation. 

Upon  complying  with  the  foregoing  provisions  and  it  appearing  that  the 
bond  or  undertaking  was  duly  executed,  that  the  corporation  is  authorized 
to  transact  business  in  the  state,  and  that  its  assets  exceed  its  liabilities  in 
an  amount  equal  to  or  in  excess  of  the  amount  of  the  bond  or  undertaking, 
the  justification  of  the  surety  shall  be  complete  and  it  shall  be  accepted  as 
the  sole  and  sufficient  surety  on  the  bond  or  undertaking. 

The  county  clerk  of  any  county  or  city  and  county  shall,  upon  request, 
issue  the  certificate  hereinbefore  provided  for,  which  certificate  shall  state 
whether  or  not  the  certificate  of  authority  of  such  corporation  has  been  sur- 
rendered, revoked,  canceled,  annulled  or  suspended,  and  in  the  event  that 


^^13  BOND— PEOPLE  NOT  TO  GIVE— SURETY  ON.  §§  1058,  1059 

it  has,  whether  or  not  renewed  authority  to  act  under  such  certificate  of 
authority  has  been  granted  as  provided  in  section  625a  of  the  Political  Code. 
For  each  certificate  issued  the  county  clerk  shall  receive  a  fee  of  fifty  cents 
to  be  paid  by  the  person  obtaininfr  the  certificate. 

Legislation  g  1057a.  Added  by  Stats.  1911.  laws  and  part.s  of  laws  and  all  s.-ctions  of  either 
p.  Al...  Jhe  act  lidding  this  section  had  a  re-  of  the  codes  in  conflict  herewith  are  hereby  ex 
pealing    clause    at    the    end    thereof,    readiiiR,    "All         pressly    repealed." 

§  1058.  People  of  state  not  required  to  give  bonds  when  state  is  a  party. 
In  any  civil  action  or  proceeding  wherein  the  state,  or  the  people  of  the 
state,  is  a  party  plaintiff,  or  any  state  officer,  in  his  official  capacity  or  on 
behalf  of  the  state,  or  any  county,  city  and  county,  city,  or  town,  is  a  party 
plaintiff  or  defendant,  no  bond,  written  undertaking,  or  security  can  be 
required  of  the  state,  or  the  people  thereof,  or  any  officer  thereof,  or  of  any 
county,  city  and  county,  city,  or  toAvn;  but  on  complying  with  the  other 
provisions  of  this  code  the  state,  or  the  people  thereof,  or  any  state  officer 
acting  in  his  official  capacity,  have  the  same  rights,  remedies,  and  benefits 
as  if  the  bond,  undertaking,  or  security  were  given  and  approved  as  required 
by  this  code. 

^^Costs.  against  state  or  county.    Ante,  §§  1038,  ig  defendant  in  a  suit,  and  appeals,  is  not 

exempted    from   filing   an   undertaking   on 

-s^|^.«\^"°°    8    1058.     1.  Enacted    March    11.  appeal    (Von    Schmidt    v.    Widber,    3    Cal. 

18<2:   based   on   Stats.    1856,   p.   26,   and   Stats.  rj„^„^     oo-      no    n         coon      i.    i.    >^l 

1863-64,   p.   261.  Unrep.   83.);   32   Pac.  532);   but  the   court 

2.  Amended  by  Code  Amdts.  1880,  p.  76,  in-  has    refused    to    dismiss    the    appeal    of    a 

serting  "city  and  county"  after  "county."  county    auditor,    representing    the    county, 

Necessity  of  bond  by  state.     The  state,  where  no  undertaking  was  given.   Laniber- 
wheu  it  is  a  party  defendant,  comes  within  son  v.  Jefferds,  116  Cal.  492;  48  Pac.  485. 
the  exemption  of  this  section,  as  well  as  By   city   and  county.     This   section   ap- 
when  it  is  a  party  plaintiff.    San  Francisco  plies  to  the  city  and  county  of  San  Fran- 
Law  etc.  Co.  V.  State,  141  Cal.  354;  74  Pac.  cisco.   Morgan  v.  Menzies,  60  Cal.  341. 
1047.  By  board  of  education.     The   board   of 

By  county.     An  ordinance  of  a  county,  education  of  a  city  and  county  must  give 

providing  that  in  an  action  by  the  county  an    undertaking    on    appeal.     Mitchell    v. 

to  recover  a  license  tax  a  writ  of  attach-  Board  of  Education,  137  Cal.  372;  70  Pac. 

ment  may  issue  without  bonds,  is  in  bar-  180. 

mony    with    this    section,    and    also    with  By   corporation.     A   corporation   joining 

§  3360   of   the   Political   Code,   and   is   not  with   a   municipality   in   an   appeal   is   not 

void  as  being  a  special  law  regulating  the  relieved    from    the    necessity    of    filing    a 

practice    of    courts    of    justice.     San    Luis  proper   undertaking,   and,   in    the   absence 

Obispo  County  v.  Greenberg,  120  Cal.  300;  of   such   undertaking,   the   appeal   of   such 

52  Pac  797.  corporation    will    be    dismissed.     Meyer   v. 

By  county  oflacer.     Although  county  offi-  San  Diego,  130  Cal.  60;  62  Pac.  211. 

cers  are  not  mentioned  in  this  section,  yet.  Undertaking  by  city  and  county  is  void. 

where  the  county  is  the  real  party  in  in-  An   undertaking  on  attachment,  given   by 

terest,  and  is  represented  by  a  county  offi-  a  city  and  county,  is  in  contravention  of 

cer,  not  acting  in  his  individual  right,  but  the  policy  of  the  law,  and  therefore  void 

in  behalf  of  the  county,  the  case  is  within  as  a   common-law   bond.    Morgan   v.   Men- 

the  reason  of  the  rule  prescribed  by  this  zies,  60  Cal.  341. 

!fn*'''!;'o    ^^'"^.'l'"''"' /■    Jefferds     116    Cal.  CODE  COMMISSIONERS' NOTE.    Stats.  1864. 

492;    48   Pac.   48o.     A   county   oiScer,  who       p.  261 ;  1856,  p.  26. 

§  1059.    Surety  on  appeal  substituted  to  rights  of  judgment  creditor. 

Whenever  any  surety  on  an  undertaking  on  appeal,  executed  to  stay  pro- 
ceedings upon  a  money  judgment,  pays  the  judgment,  either  with  or  with- 
out action,  after  its  affirmation  by  the  appellate  court,  he  is  substituted  to 
the  rights  of  the  judgment  creditor,"  and  is  entitled  to  control,  enforce,  and 
satisfy  such  judgment,  in  all  respects  as  if  he  had  recovered  the  same. 

Subrogation   of   surety    ou    appeal   bond.     See  be  made   by   a   surety,  before  he  can   pro- 
antf,  §  7(1'.).  ceod    under    this    section;    he    can    be    re- 
Legislation  §    1059.      Added  by  Code  Amdts.  imbursed,  under  it,  onlv  for  what   he  has 
1873-74,  p.  344.  expended.    Estate   of  Ilill,   67   Cal.  23S;    7 
Reimbursement  of  surety.    Payment  must  Pac.  664. 


INDEX. 


(i) 


INDEX. 

VOL.  I.     PARTS  I,  II.     §§  1-1059. 


ABANDONMENT. 

Action,  of,  nonsuit,  §  581. 

ABATEMENT. 

Action   not  abated   by   iloath,   disability, 

or  transfer  when,  §  .'5S."). 
Alienation   or  termination  of  title  pond- 
ing action,  effect  of.  §§  740,  747. 
Continuance  of  action  against  successor 

or  r0)>.5sentati\'e,  §  'ASo. 
Nuisance,  of,  §  731. 
Partition  proceedings,  effect  of  death  or 

insolvency  of  party,  §  763. 
Pleas  in,  §  430. 
Successive    actions,    right    to    maintain, 

S  1047. 
Termination    of   plaintiff's   title   pending 

suit,  verdict  and  judgment  in  case  of, 

§  740. 

ABBREVIATIONS. 

I'Se  of,  in  judicial  proceedings,  §  186. 

ABSENCE.     See  Absentee. 

Chief  justice  of  supreme  court,  of,  pro- 
ceedings in  ease  of,  §  46. 

Evidence,  of,  motion  to  postpone  trial, 
§595. 

Judge,  of,  proceedings  in  case   of,  §  139. 

Judge,  of,  settlement  of  bill  or  state- 
ment, §  653. 

Justice  of  peace,  of,  reassignment  and 
transfer  of  action,  §  90. 

Order  in  absence  of  party  deemed  ex- 
cepted to,  §  647. 

Presiding  justice  of  peace,  substitute, 
§85. 

Publication  of  summons  in  case  of, 
§§412,  413. 

State,  from,  running  of  statute,  §  351. 

Superior  judge,  of,  authority  of  court 
commissioner,  §  259. 

Superior  judge,  of,  holding  court  bv  an- 
other, §160. 

Trial  in  absence  of  party,  §  594. 

Waiver  of  jury  by,  §  631. 

Witness,  of,  postponement  of  trial  for, 
§595. 

ABSENTEE.     See  Absence. 

Publication    of   summons,  §§  412,  413. 

ABSTRACT   OF  JUDGMENT. 

In  justice's  court,  §  897. 

Justice's,  filing,  in  superior  court,  §  898. 

Justice's,  filing,  in  superior  court,  issu- 
ing execution  on,  §  899. 

Justice's,  lien  of  where  filed  with  re- 
corder, §  900. 

Justice's,  no  lien  unless  filed  with  re- 
corder, §  900. 


ABSTRACT  OF  TITLE. 

In    jiartition,  §§  799,   SUO. 

In     fiartition,     cost     of,     allowed     when, 

§  799. 

ACCIDENT. 

A'ew  tri.il  on  ground  of,  §  657. 

ACCOUNT.     See  Accounting. 

Bill  of  particulars.  See  Bill  of  Particu- 
lars. 

Copies  of,  right  to  take.  See  Inspection 
of  Writings. 

f'op.^'7  f,'i\''ng  to  adverse  party  on  de- 
mand and  effect  of  refusal,  §  454. 

Delivery  of  copy  to  adverse  partv 
§§  454,  886. 

Exhibiting  original  and  delivering  copy 
to  adverse  party,  §  886. 

Further,  when  court  may  order,  §  454. 

General  or  defective,  further  account, 
§454. 

Inspection  of.  See  Inspection  of  Writ- 
ings. 

Interlocutory  judgment  ordering,  time 
to  appeal,  §  939. 

Items  of,  need  not  be  pleaded,  §  454. 

.Tudge    may   receive,   at   chambers,  §  166. 

Limitation  of  action  on,  §  344. 

Pleading,  how  to  state  account  in,  §  454. 

Pleading  in  justice's  court,  §  886. 

Reference  of,  on  judgment  by  default, 
§585. 

Reference  of,  powers  and  duties  of  ref- 
eree, §  639. 

Reference  of,  when  ordered,  §  639. 

ACCOUNTING.     See  Account. 

Rents  and  profits  after  execution,  for, 
§707. 

ACCUSATION. 

Attorney,  accusation  against,  §§  290-297. 

See  Attorney. 

ACKNOWLEDGMENT. 

Certificate  of  redemption,  acknowledg- 
ment of,  §  703. 

Court  commissioner's  power  to  take, 
§259. 

Debt,  acknowledgment  so  as  to  remove 
bar  of  statute, §  360. 

Justice  of  peace  may  take,  §  179. 

Justice  of  supreme  court  may  take, 
§179. 

Police  judge  may  take,  §  179. 

Satisfaction   of  judgment,   of,  §  675. 

Superior  judge  may  take,  §  179. 
ACTIONS. 

Abatement  not  worked  by  death,  dis- 
ability, or  transfer  when,  §  385. 

Abatement  of.     See  Abatement. 


(iii) 


IV 


INDEX.      VOL.    I.       §§1-1059. 


ACTIONS.      (Continued.) 

Alienation  of  realty  not  to  prejudice, 
§  747. 

Appeal,  action  deemed  pending  during, 
§  1049. 

By  whom  prosecuted,  §  30. 

Civil  and  criminal,  actions  are,  §  24. 

Civil,  arises  out  of  obligations  or  in- 
juries, §  25. 

Civil,  definition  of,  §§  22,  30. 

Code,   effect   of   on    pending   actions,  §  8. 

Commenced  by  filing  complaint,  §  405. 

Complaint.     See  Complaint. 

Consolidation  of,  when  mav  be  ordered, 
§  1048. 

Criminal,  Penal  Code  provides  for  prose- 
cution of,  §  31. 

Deposit  in  court.     See  Deposit  in  Court. 

Determine  adverse  claims,  to,  §  1050. 

Dismissal  of.     See  Dismissal. 

Division  of  actions,  into  civil  and  crimi- 
nal, §  24. 

Executor  or  administrator  may  sue  with- 
out joining  beneficiaries,  §  369. 

Extension  of  time,  in  general,  §  1054. 

Form  of,  one  only,  §  307. 

Interpleader,  when  and  how  maintained, 
§386. 

Intervention,  how  and  when  effected, 
§387. 

Is  civil  or  criminal,  §  24. 

Joined,  what  actions  may  be,  §  427.  See 
Joinder  of  Actions. 

Judicial  remedies,  defined,  §  20. 

Justices'  courts,  in.     See  justices'  Court. 

Kinds  of,  §  24. 

Limitation  of,  §§  312-362.  See  Limita- 
tion of  Actions. 

Lis  pendens,  §  409. 

Local,  what  are,  §  392. 

Merger  of  civil  and  criminal,  §  32. 

Misjoinder  of,  demurrer  for,  §§  430,  444. 

Nonsuit.     See  Nonsuit. 

Notice  of  pendency  of  action  affecting 
real  property,  §  409. 

Paper  with  defective  title,  when  valid, 
§  1046. 

Particular  actions.  See  the  particular 
title. 

Parties,  other,  when  court  may  order 
in, §  389. 

Parties  to.     See  Parties. 

Pending,   as   ground  for  demurrer,  §  430. 

Pending,  deemed  to  be  during  appeal, 
§  1049. 

Pending,  how  affected  by  code,  §  8. 

Pending,  when   deemed  to   be,  §  1049. 

Place  of,  §§  392-400.     See  Place  of  Trial. 

Pleadings  in.     See  Pleadings. 

Real  party  in  interest  to  prosecute, 
§367. 

Realty,  to  recover  injuries  to,  §  392. 

Realty,  to  recover,  where  brought,  §  392. 

Receiver  may  bring  and  defend,  §  568. 

Register  of,  must  be  kept  by  clerk, 
§  10.52. 

Register  of,  what  to  be  entered  in, 
§  1052. 


ACTIONS.     (Continued.) 

Remedies,  defined,  §  20. 

Remedies  divided  into  actions  and  spe- 
cial proceedings,  §  21. 

Ships,  against,  §§  813-827.  See  Ship- 
ping. 

Special  proceeding  included  under,  in 
statute  of  limitation,  §  363. 

State,  actions  against.     See  State. 

Successive  actions,  right  to  maintain, 
§  1047. 

Surety,  by,  §  1050. 

Survival  of,  §  385. 

Survival  of,  statute  of  limitation,  §§  353, 
355. 

Title  of,  §  426. 

Title  of,  paper  with  defective,  when 
valid,  §  1046. 

Transfer  of,  §§  397-400.  See  Place  of 
Trial. 

Transitory,  §  395. 

Trustee  may  sue  without  joining  bene*- 
ficiaries,  §  369. 

When  commenced,  §  350. 

ACTION  TO  QUIET  TITLE.     See  Quiet- 
ing Title. 

ADJOURNMENT. 

Amendment  in  justice's  court,  adjourn- 
ment on,  §  859. 

Construed  as  recesses,  and  not  to  pre- 
vent court's  sitting,  §  74. 

Continuance.     See  Continuance. 

Holidays,  on,  §  135. 

Holiday,  to,  proceedings  in  case  of, 
§135. 

fn  justice's  court,  §§  873-877. 

Judge,  absence  of,  adjournment  by  clerk, 
§139. 

Superior  court,  of,  §  74. 

Supreme  courf,  of,  §  48. 

Trial  in  police  court,  §  931. 

While  jury  out,  §  617. 

While  jury  out,  sealed  verdict,  §  617. 

ADMIRALTY.     See   Shipping. 

ADMISSION. 

Attorney,  admission  to  practice,  §§  275-- 
280.    "See   Attorney,  I. 

By  failure  to  verify  answer,  §  446. 

Continuance,  denial  of  on  admission  of 
evidence,  §  595. 

Contract  set  out  in  answer,  when  deemed 
admitted,  §  448. 

Evidence,  admission  of,  denial  of  con- 
tinuance, §  595. 

Service  of  summons,  of,  §  415. 

Written  instruments  in  complaint  deemed 
admitted  when,  §§  447-449. 

ADMONITION. 

Of  jury,  on  separation,  §  611. 

ADULTERY.     See  Divorce. 

Co-respondent,   copy   of  pleadings   to  be 

served  on,  §  1019. 
Co-respondent,  may  appear  and  be  heard,. 

§  1019. 


INDEX.      VOL.    I.       §§  1-1059. 


ADULTERY.     (Continued.) 

L'o-iespondeiit,  notice,  where  eanuot  be 
found,  how  given,  §  1U19. 

ADVERSE  CLAIM. 

Personal  property,  to,  action  to  deter- 
mine, §  1050. 

Quieting  title,  §§  7.']S-751.  See  Quieting 
Title. 

Real  property,  parties  defendant,  §  ."iSO. 

Real  property,  to,  action  to  determine, 
§738. 

Writ  of  possession,  right  to,  on  recovery, 
§  :5S0. 

ADVERSE  POSSESSION. 

Descent  cast,  right  of  possession  not 
affected  by,  §  327. 

Disabilities,  action  after  ceasing  of, 
§328. 

Disabilities  excluded  from  time  to  com- 
mence actions,  §  328. 

Disabilities  not  to  exceed  twenty  years. 
§  328. 

Disabilities  suspending  statute  enumer- 
ated, §  328. 

Entry,  sufiiciency  of,  as  a  claim,  §  320. 

Entry,  action  on,  when  to  be  brought, 
§320. 

Entry  under  claim  of  title  deemed  ad- 
verse, §  322. 

Improvements  as  a  set-off,  §  741. 

Inclosure  and  boundaries,  §  325. 

Infant,  against,  §  328. 

.Judgment,  under,  §§  322,  323. 

Landlord  and  tenant,  presumption  as  to 
tenant's    possession,  §  326. 

Landlord  and  tenant,  relation  of,  aa 
affecting,  §  326. 

Lunatic,  against,  §  328. 

Mesne  profits,  §  336. 

Mining  claim,  inclosure  of,  §  321. 

Occupation  deemed  under  legal  title,  un- 
less adverse,  §  321. 

Occupation  under  claim  of  title  not 
founded   on  writing,  §  324. 

Occupation  under  judgment,  when  ad- 
verse, §§  322,  323. 

Occupation  under  written  instrument, 
when  adverse,  §§  322,  323. 

Possession  presumed  in  holder  of  legal 
title,  §  321. 

Possession  not  under  instrument,  ex- 
tends how  far,  §  324. 

Possession  of  part,  wliether  possession 
of  whole,  §§  322,  323. 

Prisoner,  against,  §  328. 

Redemption  of  mortgage,  §§  346,  347. 

Seisin  within  five  vears  necessary, 
§§518,  319. 

State,  against,  §§  3L5,  317. 

Taxes,  payment  of,  necessary  to,  §  325. 

What  constitutes,  under  claim  of  title 
not   written,  §  325. 

Written  instrument,  not  founded  on, 
§§  324,  325. 

Written  ins'trument  or  judgment,  under 
§§322,  323. 


AFFIDAVIT.     See  subject  in  question. 

Afrirniatioiis.     See  Afiirmation. 

Amendment,  for  order  to  allow,  §  473. 

Appeal,  a  part  of  record  on,  §  GGl. 

Arrest,  for,  of  defendant,  §  481. 

Arrest,  for,  of  defendant  in  justice's 
court,  §  862. 

Arrest,  on  motion  to  vacate  order  of, 
or  to   reduce   bail.  §  503. 

Attachment,  for,  §  538. 

Attachment,  for  discharge  of,  §  557. 

Attachment,  for,  in  justice's  court,  §  8G6. 

Change  of  judges,  for,  on  ground  of 
bias,   etc.,  §  170. 

Changing  place  of  trial  in  justices' 
courts,  for,  §  833. 

Claim  for  exemption  from  jury  duty, 
of,  §  202. 

Continuance,  on  motion  for,  §  595. 

Costs,  of,  §  1033. 

Court  commissioner  may  take,  §  259. 

Defective  title  to,  validity,  §  1046. 

Defendant,  for  trial  in  proper  county, 
§396. 

Deputy  justice's  clerk,  authority  of,  to 
take,  §  86. 

Injunction,  for  vacating  or  modifying, 
§  532. 

.Judicial  officers  may  take,  §  179. 

Juror  may  make,  of  misconduct  of  jury, 
§657. 

Justice  of  peace  may  take,  §§  86,  179. 

New  trial,  motion  for,  on  affidavit,  pro- 
cedure, §  659.     See   New   Trial. 

New  trial,  motion  for,  when  made  on, 
§  658. 

Particular  proceedings,  affidavits  in. 
See  particular  title. 

Plaintiff's,  denj-ing  execution  of  instru- 
ment set  out  in   answer,  §  448. 

Police  judge  may  take,  §  179. 

Postponement  of  trial,  for,  in  absence  of 
witness,  §  595. 

Prejudice,  of,  §  ]70. 

Publication  of  summons,  for,  §  412. 

Publication  of  summons,  for,  as  part  of 
judgment-roll,  §  670. 

Redemptioner   from    execution,   of,  §  705. 

Referee,  on  objections  to  appointment 
of,  §  642. 

Relief  from  default  judgment  in  jus- 
tice's   court,   for,  §  859. 

Replevin,  in,  §§  510,  519,  520. 

Service   of  summons,   of,  §  415. 

State  a  party,  when,  §  446. 

Summotis  to  joint  debtor  after  judgment, 
for,  §  991. 

Superior  judge  may  take.  §  ]79. 

Supreme  court  justice  may  take,  §  179. 

Sureties,  of,  §  1057. 

Sureties,  of,  on  bond  to  stay  money  judg- 
ment, §  942. 

Title,  want  of,  or  defective,  effect  of, 
§  1046. 

Transfer  of  action  to  another  justice  of 
peace,  on  ground  of  interest,  etc.,  for 
§90. 


VI 


INDEX.      VOL.    I.       §§  1-1059. 


AFFIDAVIT.     (Coutinued.) 

Vacating   or   modifying   injunction,   for, 

§532. 
Value,   of,   in   claim    and    delivery,   does 

not  bind  officer   when,  §  473. 
Verification  of  pleadings,  §  446. 
Who  may  take,  §§  86,  179,  259. 

AFFINITY.     See  Consanguinity. 

Judge  or  justice,  as  disqualifying,  §  170, 
Juror,  as  disqualifying,  §  602. 
Meaning  of,  §  17. 
Receiver,  as  disqualifying,  §  566. 
Referee,  as  disqualifying,  §  641. 

AFFIRMATION. 

Court   commissioner,   power  of,   to   take, 

§259. 
Oath  includes,  §  17. 
Oaths.     See  Oaths. 

AFFIRMATrVTE  RELIEF. 

Dismissal,  where  affirmative  relief  asked, 

§581. 
When  granted,  §  666. 

AFFRAYS. 

Justice's  court  has  jurisdiction  over, 
§115, 

AGENCY. 

Authority  of  agent  to  buy  or  sell  realty, 
to  be   written,  §  973. 

Default  judgment,  examination  of  agent 
of  plaintiff,  §  585. 

,Toint  authority,  majority  may  act,  §  15. 

Referee,  relation  of,  disqualifies,  §  641. 

Relationship  of  principal  and  agent  dis- 
qualifies juror, §  602. 

Replevin,  from  agent,  §  512. 

Replevin,  service  of  order  on  agent, 
§512, 

AGREEMENTS.     See  Contracts. 

ALIAS. 

Execution  from  justice's  court,  §  903. 
Summons    from    justice's    courts,  §§  846, 

847. 
Summons,  time  for  issuance  of,  §  408. 
Summons  will  issue  when,  §  408. 

ALIEN. 

Admission  as  attorney,  declaration  of 
intention  to  become  citizen,  §  275. 

Admission  of  attorney  from  foreign 
country,  §  279. 

Limitation  of  actions  affecting,  §  354. 

ALIENATION. 

Effect  of,  on  action,  §§  740,  747. 

ALLEGATIONS.  See  Answer;  Com- 
plaint; Pleading. 

Denials  of,  how  made,  §  437. 

If  not  controverted,  deemed  admitted, 
§462. 

Id  particular  actions.  See  particular 
title. 


ALLEGATIONS.     (Continued.) 

In  pleadings  against  joint  debtors,  §  993, 
Material,   what   are,  §  463. 
Redundant,  sham,  and  irrelevant,  strik- 
ing out,  §  453. 
To   be   liberally   construed,  §  452. 
Variance,  §§  469-471.     See  Variance. 
When  deemed  admitted,  §  462. 
When  deemed  controverted,  §  462. 

ALMSHOUSE. 

Officer  or  attendant  exempt  from  jury 
duty,  §  200. 

AMBIGUITY. 

Pleading,  in,  demurrer  for,  §§  430,  444. 

AMENDMENT. 

Allowance  of,  power  of  court,  §  473. 
Answer,   before,   effect    of.  §  472. 
Answer,  before,  right  of,  §  472. 
Answer  to,  time  for,  §§  432,  472. 
Attachment,  of  writ,  affidavit  or  under- 
taking, §  558. 

Bill  of  exceptions,  to,  §  650.  See  Excep- 
tions. 

Code,  of,  how  made,  §  19. 

Complaint,  defendant  must  answer, 
§432. 

Complaint,  failure  to  answer,  default, 
§432. 

Complaint,  filing  and  serving  amend- 
ments, §§  432,   472. 

Complaint,   of,  proceedings   on,  §  432. 

Conclusions  of  law,  of,  §  663. 

Copy  of  amendments,  filing  and  serving, 
§432. 

Default  for  failure  to  answer,  §  432. 

Demurrer,  after,  of  course,  §  472. 

Demurrer,  before,  §  472. 

Demurrer  to,  §  472. 

Fictitious  name,  §  474. 

Filing  of,  §  472. 

How  made,  §  472. 

Justice's  court,  adjournment  and  costs 
on  amendment  in,  §  859. 

Justice's  court,  amendment  in,  §  859. 

Justice's  court,  in.  See  Justices'  Courts, 
V. 

Mistake  in  any  respect,  correcting  by, 
§473. 

New  parties,  bringing  in  by,  §  3S9. 

Notice  of,  what  may  be  allowed  after, 
§  473. 

Of  course,  without  costs,  §  472. 

Order  allowing  or  refusing  deemed  ex- 
cepted to,  §  647. 

Orders,  power  of  court  to  amend,  §  128, 
subd.  8. 

Party,  adding  or  striking  out  name  of, 
§473. 

Party,  correcting  mistake  in  name  of, 
§  473. 

Pleading,  of,  time  for,  from  what  time 
runs,  §  476. 

Pleading,  of,  when  there  is  a  variance, 
§§  469,  470. 


INDEX.      VOL.    I.       §§  1-1059. 


Vll 


AMENDMENT.      (Continued.) 

Pleadings,  of,  to  bring  in  necessary  par- 
ties, §  389. 

Pleadings,  of,  on  demurrer  in  justice's 
court,  §  858. 

Pleadings,  to,  in  general,  §  47.'5. 

Power  of  courts  generally,  §  128,  subd.  8. 

Process,  of,  power  of  court,  §  128. 

Eight  to  amend  once  as  of  course  and 
Avithout  costs,  §  472. 

Serving  of,  §  472. 

Statement,  amendments  to,  §§  659,  6GI. 

Striking  out  name  (if  party,  §  473. 

Supplemental  pleadings,  §  4d4. 

Supplemental  pleadings.  See  Supple- 
mental Pleadings. 

Terms  may  be  imposed,  §  473. 

Time  for,  power  to  extend,  §  1054. 

To  pleadings  or  proceedings  generally, 
§473. 

Variance,  in  case  of,  §§  469,  470. 

What  amendments  may  be  allowed, 
§473. 

What  may  be  allowed  after  notice,  §  473. 

ANCHORAGE. 

Vessels  liable  for,  §  813. 

ANIMALS. 

When  and  to  what  extent  exempt  from 
execution,  §  690. 

ANOTHER  ACTION  PENDING. 

Ground  for  demurrer,  §  430. 

ANSWER.     See  Pleadings. 

Abatement,  plea  in,  §  430. 

Absence  of,  what  relief  granted  plain- 
tiff, §  580. 

Account,  items  of,  §  454. 

Admissions  of  allegations  by  failure  to 
deny,  §  462. 

Allegations.     See  Allegations. 

Allowing,  after  time  limited  by  code, 
§473. 

Allowing,  after  judgment,  where  sum- 
mons not  served,  §  473. 

Allowing,  where  demurrer  overruled, 
§472. 

Amended  complaint,  failure  to,  default, 
§472. 

Amended   complaint,   to,   time   for,  §  472. 

Amended   pleading,   to,  §  472. 

Amendment  of,  §§  472,  473. 

Answering  to  part  of  complaint  and  de- 
murring to  balance,  §  441. 

Appearance,  answer  is,  §  1014. 

Complaint,  amended,  to,  §  432. 

Construction  of,  §  452. 

Contains  what,  §  437. 

Countercl.aims,  §§  437-440. 

Counterclaims,  mav  contain  several, 
§441. 

Counterclaims.     See  Counterclaim. 

Cross-complaint,  §  442. 

Cross-complaint,  demurrer  to  answer  to, 
§422. 

Cross-complaint.     See   Cross-complaiat. 


ANSWER.      (Continued.) 

Cross-comjilaint,  answer  or  demurrer  to, 
§§  422,  442. 

Default  for  failure  of,  when  entered, 
§  585.     See  Default. 

Defective  heading  to,  §  1046. 

Defense  not  raised  by,  waived,  §5  434, 
439. 

Defenses,  may  contain  as  many  as  de- 
fendant has,  §  441. 

Defenses  must  be  stated  separately, 
§  441. 

Defenses  to  refer  to  causes  of  action 
they  answer,  §  441. 

Demand  for  inspection  of  instruments 
and  refusal  of,  §  449. 

Demur  to  part  of  complaint  and  reply 
to  part,  §  441. 

Demurrer  and,  at  same  time,  §  431. 

Demurrer,  matters  not  appearing  on  face 
of  complaint,  §  433. 

Demurrer  not  waived  by  answer  at  same 
time,  §  472. 

Demurrer  overruled,  allowing  answer, 
§472. 

Demurrer,  overruling,  time  to  answer 
runs   from   notice,  §  476. 

Demurrer  to,  §§  422,  443,  444. 

Demurrer  to,  ground  of,  §  444. 

Demurrer  to,  overruling,  facts  of  an- 
swer  deemed    denied,  §  472. 

Demurrer  to,  time  to  file,  §  443. 

Disclaimer,  §  739. 

Filed,  must  be,  §  465. 

General  denial  puts  in  issue,  what,  §  437. 

General  denial,  when  sufficient,  §  437. 

Generally,  §  437. 

Genuineness  of  instruments,  how  contro- 
verted, §  448. 

Genuineness  of  instruments,  when  ad- 
mitted, §§  447,  448. 

Genuineness  of  instruments,  when  not 
admitted,  §  449. 

Information  and  belief,  denial  on,  §  437. 

In  particular  actions.  See  particular 
title. 

Irrelevant,    may    be    stricken    out,  §  453. 

Joint  debtor  brought  in  after  judgment, 
of,  §  992. 

Justice's  court,  in,  §  852.  See  Justices' 
Courts,  V. 

Lost,  how  supplied,  §  1045. 

Material  allegations  in  complaint,  not 
controverted,    deemed    true,  §  462. 

Material  allegations,  what  are,  §  463. 

New  matter,  may  contain,  §  437. 

New  matter  in,  deemed  denied,  §  462. 

Objection  not  appearing  on  complaint, 
may   be   taken   by,  §  433. 

Objections  to  complaint  waived  when, 
§  434. 

Particular  proceeding,  in.  See  particu- 
lar title. 

Plea  in  abatement.  §  430. 

Pleading,  as  a,  §  422. 

Police  court,  in.  oral  or  written,  §  931. 

Police  court,  when  may  be  made,  §  931. 


Vlll 


INDEX.      VOL.    I.       §§  1-1059. 


ANSWER.     (Continued.) 

Eedundant  matter,  striking  out,  §  453. 

Served,  must  be,  §  465. 

Shall  contain  what,  §  4.37. 

Sham,   may   be   stricken   out,  §  453. 

Signature  to,  §  446. 

Specific  denial,  when   necessary,  §  437. 

Striking  out  sham  and  irrelevant  an- 
swers, §  453. 

Supplemental,  when  allowed,  §  464. 

Supplemental  pleadings.  See  Supple- 
mental Pleadings. 

Time  for,  §  407. 

Time  for,  allowing,  after  time  limited 
by  code,  §  473. 

Time  for,  extending,  §§  473,   1054. 

Time,  power  of  court  to  extend,  §  1054. 

Unverified  complaint,  general  denial, 
§  437. 

Variance,  amendment,  allowing,  in  case 
of,  §§469,   470. 

Verification   of,  §  446. 

Verified  complaint,  failure  to  verify  an- 
swer,  §  446. 

Verified  complaint,  specific  denial  neces- 
sary, §  437. 

Waiver  of  objections  not  taken  bv, 
§  434. 

Waiver  of  summons  by,  §  406. 

What  to  contain,  §  437. 

Written  instrument,  setting  out,  in, 
§§  448,  449. 

Written  instrument,  when  complaint  sets 
forth,  §§447-449. 


APPEALS. 

I.  Parties  to;  code  provisions  govern. 
II.  Jurisdiction  of  supreme  court;   who 
may    appeal,    aiid    in  what    cases 
may  be  taken. 
m.  Within  what  time  to  be  taken. 
IV.  Hov/  taken;  notice,  undertaking,  or 

deposit. 
V.  Questions,    how    presented    for    re- 
view;   on   transcript   prepared   by 
clerk;    alternative  method;   record 
on  appeal. 
VT.  Effect  of  appeal;    stay   of  proceed- 
ings. 
VII.  Dismissal   of  appeal. 
/III.  Hearing    and    review;     preference; 
brietfs. 
IX.  Judgment  on;  remedial  powers;   re- 
versal. 
X.  Rehearing  and  hearing  in  bank. 
XI.  Costs  and  damages  on  appeal. 
XII.  Remittitur. 

XIII.  Appeals  from  inferior  courts. 

XIV.  Miscellaneous. 

I.     Parties  to;  code  provisions  govern. 

Appellant,  definition  of,  §  938. 
Appellant,  who  is,  §  938. 


APPEALS.     I.  Parties  to;  code  provisions 

govern,     (Continued.) 
Judgment  reviewable  as  code  prescribes, 

§936. 
Order    reviewable     as     code     prescribes, 

§  936. 
Parties,  how  designated,  §  938. 
Respondent,  definition  of,  §  938. 
Respondent,  who  is,  §  938. 

II.  Jurisdiction  of  supreme  court;  who 
may  appeal,  and  in  what  cases  may  be 
taken. 

Accounts,  order  settling,  §  963. 

Any  aggrieved  party  may  appeal,  §  938. 

Attachment,  orders  relating  to,  §  963. 

Attorney,  judgment  suspending,  is  re- 
viewable, §  287. 

Attorney  or  representative  may  appeal 
on  death  of  party  entitled  to,  §  941b. 

Causes  in  which  may  be  taken,  §  963. 

Debt  or  claim  against  estate,  order  for 
payment  of,  §  963. 

Distribution  of  estate,  order  relating  to, 
§963. 

Divorce,  interlocutory  decrees  in,  §  963. 

Executor's  or  administrator's  account, 
order  settling,  §  963. 

Family  allowance,  order  relating  to, 
§  963. 

Guardian's  account,  order  settling,  §  963. 

Homestead,  order  on  report  of  ap- 
praisers, §  963. 

Homestead,  order  relating  to,  §  963. 

Injunctions,  orders  relating  to,  §  963. 

Interlocutory  decrees  in  divorce,  §  963. 

Interlocutory  decree  in  partition,  §  963. 

Interlocutory  decree  or  order  in  suit  to 
redeem,  §  963. 

Judgments  from  which  may  be  taken, 
§963. 

Judgment,  order  vacating  may  be  re- 
viewed on  appeal,  §  663a. 

Jurisdiction  of  supreme  court,  §§  ol,  52, 
53,  963.     See  Supreme  Court. 

Legacy  or  distributive  share,  order  for 
payment  of,  §  963. 

Letters  testamentary  or  of  guardianship, 
orders  relating  to,  §  963. 

May  be  taken  in  what  cases,  §  963. 

New  trial,  appeal  from  orders  respect- 
ing, §  963. 

New  trial,  order  for,  made  by  court  with- 
out apiilication  of  parties,  §  662. 

Orders  from  which  may  be  taken,  §  963. 

Partition,  orders  in,  §  963. 

Place  of  trial,  orders  relating  to  change 
of,  §  963. 

Probate,  orders  in,  §  963.     See  Wills. 

Receiver,  appeal  from  appointment  of, 
§963. 

Sale  or  conveyance  of  realty,  order  re- 
lating to,  §  963. 

Special  orders  after  final  judgment,  §  963. 


INDEX.       VOL.    I.       §§  1-1059. 


IX 


APPEALS,  n.  Jurisdiction  of  supreme 
court;  who  may  appeal,  and  in  what 
cases  may  be  taken.     (ContiinuMl.) 

Superior  court,  judgments  on  apjieal  to, 
what  appealable,  §  9(14. 

Wills,  orders  or  decrees  relating  to,  §  9G3. 

Who  may  appeal,  §  938. 

III.     Within  what  time  to  be  taken. 

Alternative  method,  under.     See  post,  V. 

After  rendition  of  judgment  or  order 
and  before  formal  entry  not  to  be  dis- 
missed, §  939. 

Attachment,  order  respecting,  §  939. 

Attachment,  within  what  time  appeal  to 
be  taken  to  continue,  §  946. 

Change  of  venue,  order  relating  to,  §  939. 

Evidence,  time  for  appeal  to  review, 
§  939. 

Final  judgment,  §  939. 

Final  judgment,  orders  after,  §  939. 

In  various  cases,  §  939. 

Injunctions,  order  respecting,  §  939. 

Interlocutory  judgment,  §  939. 

Judgment  on  appeal  from  inferior  court, 
§  939. 

New  trial,  order  relating  to,  time  for  ap- 
peal, §  939. 

Partition,  order  respecting  report  of 
referee, §  939. 

Receiver,  order  relating  to,  §  939. 

Special  order  made  after  final  judgment, 
§  939. 

W'here  proceedings  on  motion  for  new 
trial  are  pending,  §  939. 

Within  what  time  may  be  taken,  §  939. 

IV.  How  taken;  notice,  undertaking,  or 
deposit. 

Alternative  method,  under.     See  post,  V. 

Deposit  in  lieu  of  undertaking,  §§  940, 
941,  948,  949. 

Deposit,  waiver  of,  §  948. 

How  taken,  generally,  §  940. 

Notice  of,  §  940. 

Notice  of,  appellant  must  furnish  eopv, 
§§950-952. 

Notice  of,  filing  and  serving,  §  940. 

Notice  of,  need  not  be  served  on  party 
defaulting  or  not  appearing,  §  G50. 

Notice  of,  time  for,  cannot  be  extended, 
§  1054. 

Undertaking,  attachment,  on  appeal 
from,  §  940. 

Undertaking,  certificate  of  filing  of  or 
waiver  of,  §  953. 

Undertaking,   conditions  of,  §  941. 

Undertaking,  dispensing  with  or  limit- 
ing, when  appellant  is  executor,  trus- 
tee, etc.,  §  946. 

Undertaking,  exception  may  be  made  to 
sureties,  §  948. 

Undertaking,  exception  to  sureties,  time 
for,  §  94S. 

Undertaking,  executor,  official  bond  sufH- 
eient,  §  965. 

Undertaking,  how  certified,  §  953. 


APPEAIiS.  IV.  How  taken;  notice,  un- 
dertaking, or  deposit.     (Continued.) 

Undertaking,  in  cm.sch  not  specified,  §  949. 

Undertaking,  insufficient,  dismissal,  §  954. 

Undertaking,  insufficient,  new  bond, 
§954. 

Undertaking,  justification  of  sureties, 
and  time  for,  §  948. 

Undertaking,  justification  of  sureties, 
execution  on  failure  of,  §  954. 

Undertaking,  may  be  in  one  instrument 
or  several,  §  947. 

Undertaking,  necessary,  unless  waived, 
§940. 

Undertaking,  new  bond,  justification  of 
sureties  and  effect  of  failure  to  jus- 
tify, §  950. 

Undertaking,  new  bond,  on  loss  or  de- 
struction of,  §  954. 

Undertaking,  new  bond  on  sureties  be- 
coming insufficient, §  950. 

Undertaking,  official  bond  of  guardian 
sufficient,  §  965. 

Undertaking,  requisites  of,  §  941. 

Undertaking,  sureties,  judgment,  where 
parable  in  specified  kind  of  nionev, 
§  942. 

Undertaking,  sureties,  stipulation  for 
judgment  against,  in  several  amounts, 
§  942. 

Undertaking,  sureties,  subrogation  of, 
§  1059. 

Undertaking,  time  of  filing,  §  940. 

Undertaking,  time  to  file,  extension  of, 
§  1054. 

Undertaking  to  stay  proceedings.  Sec 
post,  VI. 

Undertaking,  waiver  of,  §§  940,  948. 

Undertaking,  where  judgment  directs 
payment  of  money,  §  942. 

Undertaking,  where  judgment  directs 
delivery  of  documents  or  persoualtv, 
§  943. 

Undertaking,  where  judgment  directs 
appointment  of  receiver,  §  943. 

Undertaking,  where  judgment  directs 
sale  of  personalty  on  foreclosure, 
§  943. 

Undertaking,  where  judgment  directs 
sale  or  delivery  of  realty,  §  945. 

Undertaking,  where  judgment  for  sale  of 
mortgaged  premises  and  payment  of 
deficiency,  §  945. 

V.  Questions,  how  presented  for  review; 
on  transcript  prepared  by  clerk;  al- 
ternative msthod;  record  on  appeal. 

Affitlavit,  ])art  of  record  on,  §  661. 

Alternative  method,  death  of  party  en- 
titled \o  appeal,  right  of  attorney  to 
take,  §94 lb. 

Alternative  method,  effect  of,  §  941c. 

Alternative  method,  notice,  how  entitled, 
§941b. 

Alternative  method,  notice  need  not  be 
served  on  parties  or  attorneys,  §  941b. 


INDEX.       VOL.    I. 


;§  1-1059. 


APPEALS.  V.  Questiors,  how  presented 
for  review;  or  transcript  prepared  by- 
clerk;  alternative  method;  record  on 
appeal.     (Continued.) 

Alternative  method,  time  for  appeal 
where  proceedings  on  motion  for  new 
trial  pending,  §  941b. 

Alternative  method,  notice  transfers 
cause  to  higher  court  without  further 
action,  §  941b. 

Alternative  method,  notice  to  identify 
judgment,  order  or  decree,  §  941b. 

Alternative  method,  notice,  what  to 
state,  §  941b. 

Alternative  method,  notice,  within  what 
time  to  file,  §  941b. 

Alternative  method,  provided  for,  §  941a. 

Alternative  method,  taken  bj'  filing 
notice,  §  941b. 

Bill  of  exceptions,  appellant  must  fur- 
nish, when,  §  950. 

Bill  of  exceptions.     See  Exceptions. 

Certificate  of  clerk  as  to  correctness  of 
transcript,  §  953. 

Certification  of  undertakings  and  copies 
§  953. 

Copies,  how  certified,  §  953. 

Findings  of  referee,  how  reviewed,  §  645. 

Judgment,  bill  of  exceptions  from  order 
vacating,   how   prepared,  §  663a. 

Judgment  roll,  what  constitutes.  §  670. 

Judgment  roll.     See  Judgment  Roll. 

Papers,  dismissal  for  failure  to  furnish, 
§  954. 

Papers  to  be  used  on  appeal  from  judg- 
ment, §  950. 

Papers  to  be  used  on  appeal  from  judg- 
ment rendered  on  appeal,  §  951. 

Papers  to  be  used  on  appeal  from  orders, 
except  orders  granting  new  trials, 
§  951. 

Papers  to  be  used  on  appeal  from  order 
granting  new  trial,  §  952. 

Record  on,  what  constitutes,  on  appeal 
from  order  on  motion  for  new  trial, 
§661. 

Transcript  by  clerk  and  reporter,  appeal 
on,  in  lieu  of  bill  of  exceptions,  §  953a. 

Transcript  by  clerk  and  reporter,  briefs 
to  print  portions  of  the  record  re- 
ferred to,  §  9u3c. 

Transcript  by  clerk  and  reporter,  clerk 
to  transmit  to  higher  court,  §  953c. 

Transcript  by  clerk  and  reporter,  court 
to  require  reporter  to  repair,  §  953a. 

Transcript  by  clerk  and  reporter,  duty 
of  reporter,  §  953a. 

Transcript  by  clerk  and  reporter,  ex- 
amination, approval  and  certification, 
§  953a. 

Transcript  by  clerk  and  reporter  filing 
of,  §  953c.  - 

Transcript  by  clerk  and  reporter,  need 
not  be  printed,  §  953c. 

Transcript  by  clerk  and  reporter,  notice 
by  clerk  that  it  has  been  prepared  and 
filed,  §  953a. 


APPEALS.  V.  Questions,  how  presented 
for  review;  on  transcript  prepared  by 
clerk;  alternative  method;  record  on 
appeal.     (Continued.) 

Transcript  by  clerk  and  reporter,  notice 
by  clerk  that  it  will  be  presented  to 
judge,  §  953a. 

Transcript  by  clerk  and  reporter,  notice 
itself  transfers  cause  to  higher  court, 
§  941b. 

Transcript  by  clerk  and  reporter,  notice 
need  not  be  served,  §  941b. 

Transcript  by  clerk  and  reporter,  notice 
of  filing  and  settlement,  §  953a. 

Transcript  by  clerk  and  reporter,  notice 
to  prepare,  contents  of,  §  953a. 

Transcript  by  clerk  and  reporter,  notice 
to  prepare,  time  to  file,  §  953a. 

Transcript  by  clerk  and  reporter,  part  of 
judgment  roll,  §  953a. 

Transcript  by  clerk  and  reporter,  per- 
sonal arrangement  with  reporter  for 
compensation,  §  953b. 

Transcript  by  clerk  and  reporter,  pre- 
sentment to  judge,  §  953a. 

Transcript  by  clerk  and  reporter,  re- 
spondent may  incorporate  what  papers, 
§  953a. 

Transcript  by  clerk  and  reporter,  specify- 
ing matters  desired  to  be  incorporated 
in,  §  953a. 

Transcript  by  clerk  and  reporter,  stipu- 
lations to  omit  matters,  §  953a. 

Transcript  by  clerk  and  reporter,  under- 
taking to  pay  cost  of,  §  953b. 

Transcript  by  clerk  and  reporter,  what 
may  contain,  §  953a. 

Transcript  by  clerk  and  reporter,  what 
papers  may  be  incorporated,  §  953a. 

VI.     Effect  of  appeal;  stay  of  proceedings. 

Action  is  deemed  pending  during,  §  1049. 

Alternative  method  of  appeal,  effect  of, 
§  941c. 

Attachment,  undertaking  to  continue, 
§946. 

Authority  of  lower  court  where  order 
directs  sale  of  perishable  property, 
§949. 

Effect  of  appeal,  and  the  giving  of  se- 
curity, §  946. 

Effect  of  appeal  from  judgment  that  one 
was  intruding  into  office  or  franchise, 
§949. 

Effect  of  appeal  from  order  on  motion 
for  change  of  venue,  §  949. 

Effect  of  appeal  from  order  that  corpora- 
tion permit  inspection  of  books,  §  949. 

Effect  of,  on  attachment,  §  946. 

Effect  of,  on  power  of  court  below,  §  946. 

Execution,  property  levied  on,  released 
by,  §  946. 

Judgment  for  delivery  of  documents  or 
personalty,  stay  of,  what  necessarA', 
§943. 

Lien  of  judgment  ceases  on  appeal,  §  671. 


INDEX.       VOL.    I.       §^  1-1059. 


XI 


APPEALS.  VI.  Effect  of  appeal;  stay  of 
proceedings.     (Coutinue.l.) 

Keleuscs  property  t'lom  levy  unless 
uudertakin<;  filed,  §  94G. 

Stay  of  judgment  ou,  how  affects  liea 
of  judgiiieiit,  §  671. 

Stay,  perfection  of  appeal  is  not,  in  what 
cases,  §  949. 

Stay,  perfection  of  appeal  operates  as, 
when,  §  949. 

Stay,  what  necessary  where  judgment 
directs  execution  of  conveyance  or 
other  instrument,  §  044. 

Stays  proceedings  below,  §  946. 

Undertaking  to  stay  deficiency  judg- 
ment, §  945. 

Undertaking  to  stay  judgment  appoint- 
ing receiver,  §  943. 

Undertaking  to  stay  judgment  directing 
foreclosure  of  chattel  mortgage,  §  94  3. 

Undertaking  to  stay  judgment  for  de- 
liverv  of  documents  or  personal  prop- 
erty,"§  943. 

Undertaking  to  stay  judgment  for  pay- 
ment of  money,  §  942. 

Undertaking  to  stay  judgment  for  sale 
or  delivery  of  realty,  §  945. 

Undertaking  to  stay  judgment  of  fore- 
closure and  for  payment  of  deficiency, 
§  945. 

Undertaking  to  stay  money  judgment, 
affidavits  of  sureties,  §  942. 

Undertaking  to  stay  money  judgment, 
liability  of   sureties,  §  942. 

Undertaking  to  stay  money  judgment, 
requisites,  §  942. 

VII.     Dismissal  of  appeal. 

Effect  of,  as  an  aflSrmance  of  judgment 
or  order,  §  955. 

For  failure  to  furnish  requisite  papers, 
§  954. 

Insufficient  undertaking,  §  954. 

Insufficient  undertaking,  new  undertak- 
ing, §  954. 

Lost  or  destroyed  bond,  new  bond, 
§954. 

New  undertaking,  justification  of  sure- 
ties and  effect  of  failure  to  justify, 
§  954. 

Not  to  be  dismissed  because  taken  after 
rendition  of  judgment  or  order  and  be- 
fore formal  entry,  §  939. 

Sureties  becoming  insufficient,  §  954. 

When  will  be  dismissed,  and  when  not, 
§  954. 

VIII.  Hearing  and  review;  preference; 
briefs. 

Appealable  order  or  decision  not  review- 
able on  appeal  from  judgment.  §  9.16. 

Brief  on  appeal  on  transcript  by  clerk 
and  reporter  to  print  parts  of  record 
referred  to, §  953c. 

Contested  election  eases,  preference 
given    to,  §  57. 

Error  not  presumed  prejudicial,  §  475. 


APPEALS.  VIII.  Hearing  and  review; 
preference;  briefs.     (Continued.) 

Errors  not  affecting  substantial  rights 
disregarded, §  475. 

New  trial,  order  on  motion,  right  to  re- 
view  on    appeal   from  judgment,  §  956. 

Orders  reviewable  ou  appeal  from  judg- 
ment, §  956. 

Probate  proceedings,  preference  given, 
§  57. 

Questions  reviewable  where  alternative 
method  of  taking  appeal  adopted, 
§941c. 

Keview  of  finding  as  to  claims  of 
mariners,  §  82G. 

Review,  what  subject  to,  §  956. 

What  may  be  reviewed  on  appeal  from 
judgment,  §  956. 

IX.  Judgment  on;  remedial  powers;  re- 
versal. 

Certificate  from  supreme  court  to  be  at- 
tached to  judgment  roll,  §  958. 

Certifying  judgment  to  court  below, 
§  958. 

Court  may  take  what  action,  §  956. 

Decision  to  be  in  writing,  §  53. 

Error  disregarded  unless  substantial 
rights  affected,  §  475. 

Judgment  on  appeal,  certificate  of,  at- 
tachment or  entry  of,  §  958. 

.Judgment,  when  becomes  final,  §  4. 

•Judgment.     See  Supreme  Court. 

Minute  of  judgment  to  be  entered  on 
docket   in   court    below,  §  958. 

Modifying  judgment  on,  §  957. 

New  trial,  passing  on  question  of  law  in- 
volved, §  53. 

Order,  judgment  on,  proceedings  below, 
on  receipt  of  certificate,  §  958. 

Powers  of  supreme  court,  §§  53,  957. 

Remedial  powers  of  appellate  court, 
§§53,957. 

Remedy  of  appellant  on  reversal  where 
property  sold  on  execution,  §  957. 

Reversal  of  judgment,  restitution  of 
rights,  §  957. 

Reversal,  new  action,  within  what  time 
may  be  brought,  §  355. 

Reversal  not  decreed,  except  for  substan- 
tial errors,  §  475. 

Reversal  of  judgment,  rights  of  execu- 
tion purchaser  on,  §  708. 

Reversal  of  order  appointing  guardian, 
validity  of  acts,  §  966. 

Reversal  of  order  appointing  executor, 
validity  of  acts,  §  966. 

Reversal,  restitution  where  property  sold 
under  execution,  §  957. 

X.     Rehearing  and  hearing  in  bank. 
Ordering  case  to  be  heard  in  bank,  §  44. 
Rehearing,  §  44. 

XI.     Costs  and  damages  on  appeal. 

Costs  of,  discretionary  with  court  in 
what  cases,  §  1027. 


xu 


INDEX.      VOL.    I.       §§  1-1059. 


APPEALS.  XI.  Costs  and  damages  on  ap- 
peal.     (Continued.) 

Costs  on,  how  claimed  and  recovered, 
§  1034. 

Costs  on  review,  other  than  by  appeal, 
§  1032. 

Costs,  prevailing  party  entitled  to,  §  1027. 

Costs,  what  allowed  as,  §  1027. 

Costs,  where  judgment  is  modified,  §  1027. 

Damages,  when  appeal  for  delay,  §§  957. 
980. 

Memorandum  of,  filing  and  serving, 
§  1034. 

XII.     Eemittitur. 

Certificate  from  supreme  court  attaching 

to  judgment  roll,  §  958. 
Certifying    judgment     to     court     below, 

§958. 
Judgment  to  be  remitted  to  court  from 

which  appeal  taken,  §  53. 
Minute    of   judgment   to   be    entered    on 

docket  in  court  below,  §  958. 
Order,  judgment  on,  proceedings  of  clerk 

on  receiving  certificate  from  supreme 

court,  §  958. 
Proceedings  on,  generally,  §  958. 
Remittiturs  in  transferred  cases,  §  56. 

Xni.     Appeals  from  inferior  courts. 

Bond,  justification  of  sureties  on,  §§  92, 
978a. 

Bond,  time  to  file,  §  978a. 

Code,  provisions  of,  applicable,  §  980. 

Code  provisions  not  applying  to  appeals, 
§959. 

Costs,  I  980. 

Damages,  where  taken  for  delay,  §  980. 

Deposit  in  lieu  of  undertaking,  §  978. 

Dismissal,  §  980. 

Docket  of  justice  of  peace  must  contain 
receipt  of  notice  of,  §  911. 

Docket  of  justice  of  peace  to  contain  re- 
ceipt of  bond  on  appeal,  §  911. 

Fees,  justice  to  pay  fees  collected  to 
county  clerk,  §  981. 

Fees,  notice  of  appeal  not  to  be  filed 
until  fees  are  paid,  §  981. 

Fees  of  county  clerk  to  be  paid  before 
appeal  effectual,  §  981. 

Fine  for  not  transmitting  papers,  §  977. 

Hearing,  what  may  be  used  on,  §  975. 

Howtaken,  §§92,  974. 

Judgment,  effect  and  enforcement  of, 
§980. 

Judgment  of  superior  court  on,  what  ap- 
pealable, §  964. 

•Justice's  court,  in.  See,  also.  Justices' 
Courts.  XXIII. 

Notice,  filed  with  justice's  clerk,  §  92. 

Notice  of,  filing  and  serving,  §  974. 

Notice,  what  to  state,  §  974. 

Objections  made  in  justice's  or  police 
court,  §  977. 

Papers  to  be  filed  with  justice's  clerk, 
§92. 

Powers  of  superior  court,  §  980, 


APPEALS.     XIII.  Appeals    from    inferior 

courts.      (Continued.) 
Proceedings  in  superior  court  on,  §  980. 
Provisions  of  code  applicable,  §  9S0. 
Provisions  of  code  not  applicable,  §  959. 
Questions  both  of  law  and  fact,  action  to 

be  tried  anew,  §  976. 
Questions  both  of  law  and  fact,  no  state- 
ment necessary, §  976. 
Questions    of    fact,    action    tried    anew, 

§976. 
Questions   of   fact,   no   statement   neces- 
sary, §  976. 
Questions  of  law,  hearing,  what  may  be 

referred  to  on, §  975. 
Questions     of    law,     original    statement 

stands  where  no  amendment  proposed, 

§  975. 
Questions  of  law,  statement,  contents  of, 

§  975. 
Questions  of  law,  statement,  amendments 

to,  §  975. 
Questions   of  law,  statement,  settlement 

of,  §§92,  975. 
Questions  of  law,  statement,  time  to  file, 

§975. 
Relinquishment    of    property    levied    on 

where  undertaking  filed,  §  979. 
Statement    and    amendments,   settlement 

of,  §§92,  975. 
Stay  of  proceedings,  officers'  fees,  §  979. 
Stay  of  proceedings  on  filing  undertak- 
ing, §  979. 
Supreme  court,  appeal  to,  from  justice's 

court,  §  964. 
Sureties,   exception   to,   and  justification 

of,  §§92,  978a. 
Time  for  appeal,  §§  939,  974. 
Transfer   of   papers,   what   papers   to   be 

transmitted,  §  977. 
Transmission  of  papers,  §  977. 
Transmission  of   papers,  compelling  the, 

§  t^77. 
Trying  cause  anew,  §  980. 
Undertaking,  requisites  of,  §  978. 
Undertakir./-,  notice  of  filing  to  be  given, 

§97Sa. 
Undertaking,  sureties  on,  adverse  parties 

may  except  to,  §  978a. 
Undertaking,  sureties,  time  to  except  to, 

§  978a. 
Undertaking,    sureties,    justification    of, 

§  978a. 
Undertaking,   sureties,   effect    of   failure 

to  justify,  §  978a. 
Undertaking,  when  to  be  filed,  §  97Sa. 
Who  may  make,  §  974. 

XIV.     Miscellaneous. 
Death  pending,  extension  of  time  to  sue, 

§  355. 
Probate    proceedings,    appeals    in.     See 

Wills. 

APPEARANCE. 

Ansv/er  is,  §  1014. 

Attorney,  appearance  by,  §  1014, 


INDEX.      VOL.    I.       §§  1-1059. 


Xlll 


APPEARANCE.     (Continued.) 

Attorney,  appearance  by  without  author- 
ity, §  287. 

Attorney,  on  accusation  for  removal, 
§§  292,  29.3. 

Bill  of  exceptions  need  not  be  served  on 
party  not  appearing,  §  ()50. 

Cures  defective  service,  §  582. 

Defendant,  of,  equivalent  to  personal 
service,  §  416. 

Demurrer  is,  §  1014. 

Effect  of,  where  summons  not  issued  or 
served, §  581a. 

Infants.     See  Infants. 

Insane  persons.     See  Insane  Persons. 

Joint  contract,  appearance  where  one  de- 
fendant appears  or  is  served,  §  406. 

Justice's  court,  place  of  trial  where  de- 
fendant voluntarily  appears,  §  833. 

.Justice's  court,  in,  time  for,  §  845. 

Justices'  courts,  in.  See  Justices'  Courts' 
XV. 

Justices'  courts  in  townships  of  two  hun- 
dred and  fifty  thousand,  appearance  in, 
§100. 

Justice's  court,  trial  in,  when  party  fails 
to  appear,  §  884. 
•     Justice's  court,   waiver  of  summons   by, 
§841. 

Legislature,  before.     See  Legislature. 

Notice  of,  §  1014. 

Notice  need  not  be  given  defendant  not 
appearing  unless  imprisoned,  §  1014. 

Notice  to  be  given  to  party  or  his  at- 
torney after,  §  1014. 

Notice  waived  by,  §  1306. 

Proceedings  to  compel,  in  supplementary 
proceedings, §  715. 

Summons,  time  for,  to  be  inserted  in, 
§407. 

Time  for,  §407. 

Time  for  where  order  of  arrest  on  sum- 
mons, §  845. 

Trial  of  actions  on.  §  581a. 

Vessels,  actions  against,  who  may  appear 
and  defend,  §  821. 

Waiver  of  findings  by  failure  to  appear, 
§634. 

Waiver  of  jury  trial  by  failure  to  make, 
§§  631,883. 

Waiver  of  summons  by,  §§  406,  416. 

What  constitutes,  §  1014. 

APPELLANT. 

Who  is,  §  936. 

APPLICATIONS. 

Repeated,  for  same  order,  forbidden,  §§ 
182,  183. 

APPORTIONMENT. 

Partition  exi>enses,  of,  §  798. 
Superior    court,    apportionment    of    busi- 
ness on  extra  session,  §  67b. 

APPRAISEMENT. 

Appointment  of  appraisers  at  chambers, 

§  166. 
Homestead,     of,     ajipeal     from     report, 

§§939,963. 


ARBITRATION. 

Arbitrators,  all  must  meet,  but  majority 

may  act,  §  1053. 
Award,  majority  may  agree  upon,  §  1053. 

ARGUMENT. 

Appeal,  on.     See  Appeals,  VILL 

Case  may  be  brought  before  court  for, 
when,  §  665. 

Entry  of  order  reserving  case  for  argu- 
ment on  special  verdict,  §  628. 

Order  of  counsels',  §  (507. 

Reserving  case  for,  §§  664,  6C5. 

ARMS. 

Exemption  of  arms,  uniforms,  and  ac- 
couterments,  §  690. 


ARREST  AND  BAIL. 

I.  Arrest. 

II.  BaU. 

I.     Arrest. 

Affidavit  and  order  of  arrest  to  be  de- 
livered to  sheriff,  and  copy  to  defend- 
ant, §484. 

Affidavitfor,  §§481,  862. 

Appearance,  time  for,  where  order  of 
arrest  on  summons,  §  845. 

Arrested  party,  application  by,  for  post- 
ponement of  trial  in  justice's  court, 
§876. 

Code  prescribes  only  mode  of,  §  478. 

Concealment,  removal  or  disposal  of  per- 
sonalty, as  ground  of,  §  479. 

Defendant,  when  subject  to,  §  479. 

Embezzlement,  for,  §  479. 

Entry  of  judgment  in  justice's  court 
when  defendant  subject  to,  §  803. 

Escape,  liability  of  sheriff,  §  501. 

Execution,  arrest  on,  §  682. 

Filing  order  of  arrest,  return  and  copy 
of  undertaking,  §  492. 

Fine  or  penaltv,  in  action  for,  §  479. 

Fraud,  for,  §  479. 

Crounds  for,  §  479. 

How  made,  §  485. 

Joinder  of  action  for,  with  action  for  in- 
jury to  character  or  person,  §  427. 

.Judgment  debtor,  of,  §§  682,684. 

Juror,  to  compel  attendance,  §  238. 

Justice's  court,  in,  §§  861-865.  See  Jus- 
tices' Courts,  VIII. 

Limit  on  right  of,  §  478. 

Malicious,  joinder  of  action  with  action 
for  injury  to  character  or  person.  §  427. 

Manner  of,  prescribed  by  code,  §  478. 

Motion  to  vacate,  §  503. 

Motion  to  vacate,  affidavit,  §  503. 

Motion  to  vacate,  when  granted,  §  504. 

Notice  must  be  given  defendant  not  ap- 
pearing, who  is  under,  §  1014. 

Order  for,  when  to  be  given  defendant, 
§  484. 

Order  of,  bv  whom  made,  §  480. 

Order  of,  filing,  §  492. 

Orderof,  form  of,  §  483. 


XIV 


INDEX.       VOL.    I. 


!§  1-1059. 


ARREST    AND    BAIL.     I.  Arrest.     (Con- 
tinued.) 

Order  of,  undertaking  of  plaintiff,  §  482. 

Order  of,  when  made,  §  483. 

Order,  service  of,  §  484. 

Order,  to  be  given  to  sheriff,  §  484. 

Quo  warranto,  in,  §  804. 

Eescue  of  defendant,  liability  of  sheriff, 
§501. 

Sheriff,  liability  of  on  escape,  §  501. 

Sheriff,  returns,  etc.,  §  492. 

Supplementary     proceedings,     arrest     of 
debtor  when  ordered,  §  715. 

Undertaking  for,  §§  482,  862. 

Usurpation   of   office,   arrest   of  usurper, 
§804. 

Vacating  arrest,  §§  503,  504. 

"When    defendant   about    to   leave   state, 
§479. 

When  defendant  about  to  remove  or  dis- 
pose of  property,  §  479. 

When  propertv  concealed  or  disposed  of, 
§  479. 

II.     BaU. 

Acceptance    of    undertaking   by    sheriff, 
§492. 

Acceptance,   refusal   by   plaintiff   to   ac- 
cept bail,  §  492. 

Acceptance,  refusal,  failure  to  serve  no- 
tice of,  operates  as  acceptance,  §  492. 

Allowance  of,  exonerates  sheriff,  §  49ti. 

Allowance  of,  manner  of,  §  496. 

Conditions  of,  §  487. 

Defendant  discharged  on  giving,  §  4S6. 

Delivery  of  undertaking  to  sheriff,  §  492. 

Deposit,  certificate  of,  §§497,  498. 

Deposit,  defendant  discharged  on  giving, 
§§486,497. 

Deposit,    how    applied    or    disposed    of, 
§  500. 

Deposit  instead  of  bail,  §  497. 

Deposit,  pavment  into  court  by  sheriff, 
liability  for  default,  §  498. 

Deposit,  substituting  bail  for,  §  499. 

Deposit,   to  be  applied  to   satisfy  judg- 
ment, §  500. 

Deposit  when  bail  reduced,  §  497. 

Exonerated  by  death  or  imprisonment  of 
defendant,  §  491. 

Exonerated    by    surrender   of   defendant 
when,  and  when  not,  §§  488,  489. 

Exoneration    by    legal    discharge    of    de- 
fendant from  obligation,  §  491. 

Failure  to  object  to,  §  492. 

Filing   of  undertaking,  §§  482,   492. 

How  given,  §  487. 

How  proceeded  against,  §  490. 

Judgment    against    sheriff,    proceedings 
on,  §  502. 

Justification,  §  494. 

Justification,  manner  of,  §§  494,  495. 

Justification,  notice,  §  493. 

New  undertaking  when  other  bail  given, 
§493. 

Qualifications  of,  §494. 

Reduction,    defendant     may    move     for, 
§  503. 


ARREST  AND  BAIL.  H.  Bail.  (Con- 
tinued.) 

Reduction,  motion  for,  affidavit,  §  503. 

Reduction,  when  granted,  §  504. 

Sheriff,  liability  of  on  escape,  §  501. 

Sheriff,  proceedings  on  judgment  against 
sheriff  as  bail,  §  502. 

Sheriff  when  liable  as,  and  his  discharge, 
§501. 

Substituting  for  deposit,  §  499. 

Sureties,  liability  of,  §  487. 

Surrender  by  defendant  himself,  §  488. 

Surrender  of  defendant,  time  for,  and 
how   accomplished,  §§  488,  489. 

Surrender  of  defendant  by  bail,  §§  488, 
489. 

Time  to  serve,  notice  of  rejection  of, 
§492. 

Undertaking  of  bail,  provisions  and  con- 
ditions  of,  §  487. 

Undertaking,  original,  sheriff  to  retain, 
until   filed,  §  492. 

Undertaking,  sheriff  to  file  copy  of  with 
clerk  of  court,  §  492. 

ASSAULT. 

Jurisdiction  of  justice's  court,  §  115. 
Limitation   of  action  for,  §  340. 

ASSEMBLY. 

To  present  impeachments,  §  37. 

ASSESSMENT. 

Claim  and   deliverv,   affidavit   as   to,   in, 

§510. 
Costs    of     course    in    action    involving, 

§§  1022,  1024. 
Limitation  of  action  for  stock  sold  for, 

§  341. 
Limitation  of  action  to  contest,  §  349. 

ASSIGNMENT. 

Bill  or  note,  effect  on  defenses,  §  368. 

Chose,  of,  not  to  prejudice  defense, 
§§  368,  385. 

Counterclaim  not  barred  by,  when.  §  440. 

Cross-demand  not  barred  by,  §  440. 

Not  to  prejudice  right  of  set-off,  §  368. 

Redemptioner  to  produce   copy  of,  §  705. 

Transfer  of  interest  does  not  abate  ac- 
tion, §  385. 

Transfer  of  interest  in  action,  proceed- 
ings on,  §  385. 

ASSISTANCE. 

Execution,  generally,  §  682. 
Writ   of  possession,   right   to,   in   suit   to 
determine  adverse  claim,  §  380. 

ASSOCflATES.     See  Association. 

Judgment   against,   binds  joint   property 

of  associates,  §  388. 
Judgment   binds   individual    property    of 

parties  served,  §  388. 
Judgment    in    action    against,    effect    of, 

§  388. 
May  be  sued  under  common  name,  §  388. 
Summons,    how    served   in    suit    against, 

§388. 


INDEX.      VOL.    I.       §§  1-1059. 


XV 


ASSOCIATION.     See  Associates. 
Service   on, §  411. 

ASYLUMS. 

Oiliccr   or   attendant   exempt   from   jury 
duty,  §  200. 


ATTACHMENTS, 

I.  Issuance,  form,  and  contents. 
II.  Undertaking  on. 

III.  What  may  be  attached. 

IV.  Levy;  property,  how  attached;   lien 

of. 
V.  Garnishment. 

VI.  Claim  of  property;  preferred  claims. 
VII.  Release;     discharge;     judgment    for 
defendant. 
VIII.  Sale  of  property;  disposition  of  prop- 
erty or  proceeds;   increase  or  de- 
ficiency;   collection  of   debts   and 
credits. 
IX.  Inventory  and  return  by  sheriff. 
X.  Miscellaneous  provisions. 


ATTACHMENTS.      IV.    Levy;     property, 

how  attached;  lien  of.     (Continued.) 
Credits,  how  attached,  §  542. 
Custody,     personal     jjroperty     must     be 

talten  in,  when,  §  542. 
Debts,  how  attaclied,  §  542. 
Exemption  of  property  from.     See  Exe- 
cutions. 
Growing  crops,  §  542. 
Lien,  attacliment  is,  on  realty,  §  542a. 
Lien    ceases   wlien   judgment   stayed    on 

appeal,  §  671. 
Lien,  duration  of,  §  542a. 
Lien,  extension  of,  §  542a. 
Lien,  proceedings  on  attachment  barred 

after  three  years,  §  542a. 
Personal  property,  how  attached,  §  542. 
Personal     property    not     susceptible     of 

manual  delivery,  how  attaclied,  §  542. 
Personal  property  susceptible  of  manual 

delivery,  how  attached,  §  542. 
Real  property,  how  attached,  §  542. 
Recorder  to  index  attachment  of  realt}', 

§542. 
Shares  of  stock,  how  attached,  §  542. 
Writ  to  be  executed  without  delay,  §  542. 


I.     Issuance,  form,  and  contents. 
Affidavit,  amendment  of,  §  558. 
Affidavit  for,  what  to  contain,  §  538. 
Amendment  of  writ,  §  558. 
Directed  to  sheriff,  §  540. 
Form  of,  §  540. 
Justices'      courts,      in.     See      Justices' 

Courts,  VIIL 
Several    writs     may    issue    to     different 

sheriffs   or   constables,  §  540. 
Time  to  issue,  §  537. 

When  and  in  what  cases  may  issue,  §  537. 
What  writ  to  state,  §  540, 

II.    Undertaking  on. 

Amendment   of,  §  558. 

Amount    of,  §  539. 

Delivered  to  defendant  on  judgment  in 
his  favor,  §  553. 

Exception  to  sureties,  §  539. 

Generally,  §  539. 

Justitication   of  sureties,  §  539. 

Requisites,  §  539. 

Vacating,  for  failure  of  sureties  to  jus- 
tify, §  539. 

III.     What   may   be   attached. 
Corporation,  shares  of  stock  may  be  at- 
tached, §  541. 
Debts  may  be  attached,  §  541. 
Exemption  from.     See  Executions. 
Vessels,  attachment  of.     See  Shipping. 
What  property  subject  to,  §  541. 

IV.     Levy;    property,   how  attached;   lien 
of. 
Attorney    to    give    written    instructions 
what  to  attach,  §  543. 


V.     Garnishment. 

Credits    on   personalty    in    possession    of 

third  person,  attachment  of,  §  543. 
Debts  and  credits,  how  attached,  §  542. 
Examination   of   defendant,   delivery   of 

property  to  sheriff  after,  §  545. 
Examination    of     defendant     on     oatli, 

§  545. 
Garnishee,  citation  to  appear,  §  545. 
Garnishee,     examination     of,     on     oath, 

§  545. 
Garnishee,   liability  of,  §  544. 
Garnishee    not    delivering    up    propcrtv, 

liability   of,  §  544. 
Garnishee,  service  on,  §§  542,  543. 

Memorandum    of    credits,    garnishee    to 

give,  §  54{r. 
Memorandum,    party    refusing,    to     pay 

costs,  §  546. 

VI.  Claim  of  property;   preferred  claim. 

Third  person,  property  claimed  by,  how 
tried,  §  549. 

VII.  Release;    discharge;    judgment    for 

defendant. 

Delivery  of  undertaking,  property,  or 
money  to  defendant,  when  judgment 
in    his   favor,  §  553. 

Discharge,  at  what  time  may  be  moved 
for,  §  556. 

Discharge,  because  improperly  or  irregu- 
larly issued. §  558. 

Discharge,  collection  by  sheriff,  receipt 
of  sheriff  a  discharge,  §  547. 

Discharge,  defendant  may  apply  for, 
wholly   or  in   part,  §  554. 


XVI 


INDEX.      VOL.    I.       §§1-1059. 


ATTACHMENTS.       VII.  Release;  dis- 

charge;     judgment      for      defendant. 

(Continued.) 

Discharge,   grounds  for,  §§  .556,   558. 

Discharge,  motion  because  of  irregular- 
ity, amendment,  etfect  on  motion, 
§  558. 

Discharge,  motion  for,  affidavit,  coun- 
ter-affidavit,   and    evidence,  §  557. 

Discharge,   motion   for,    notice    of,  §  554. 

Discharge,  motion  for,  when  may  be 
made,  §§  554,   556. 

Discharge  on  judgment  for  defendant, 
§553. 

Discharge,  recording  and  indexing  cer- 
tified copy  of  order,  §  559. 

Judgment  for  defendant,  what  to  be  de- 
livered to  him,  where  no  appeal  per- 
fected, §  553. 

Release  of,  delivery  of  property  and  pro- 
ceeds to  defendant,  §  554. 

Eelease  of,  on  giving  undertaking, 
§§  537,  554. 

Eelease  of,  on  real  propertv,  manner  of, 
§  560. 

Eelease  of,  on  real  property,  recording, 
§§  559,  560. 

Eelease  of,  on  realty,  recording  and  in- 
dexing certified  copy  of  order,  §  559. 

Eelease  of,  proceedings  for,  §  554. 

Eelease  of,  proceedings  for,  before 
whom  taken,  §  554. 

Eelease  of  property  on  judgment  for  de- 
fendant, §  553. 

Eelease  of,  undertaking  for,  terms  and 
conditions  of,  §§  554,  555. 

Eelease  of,  undertaking  for,  justification 
of   sureties,  §§  554,   555. 

Eelease  of,  undertaking  of  defendant, 
amount   of,  §§  540,   555. 

Eelease  of,  upon  what  terms  granted, 
§  555. 

Eelease  of,  when  granted,  §§  554,  555. 

Undertaking  by  defendant,  when  suit 
may  be  brought  on,  §  552. 

Undertaking  of  defendant,  amount  of, 
§  540. 

VIII.  Sale  of  property;  disposition  of 
property  or  proceeds;  increase  or  de- 
ficiency; collection  of  debts  and 
credits. 

Accounts  collected,  receipt  of  sheriff  for, 
§547. 

Accounts  may  be  collected  without  suit, 
§547. 

Balance  due,  execution  for,  §§  550,  551. 

Balance  due,  how  collected,  §§  551,  552. 

Credits  attached,  collection  by  sheriff, 
§  547. 

Debts  attached,  collection  by  sheriff, 
§547. 

Delivery  of  property  or  proceeds  to  de- 
fendant when  judgment  satisfied, 
§§550,    551. 

Judgment,  sheriff  to  satisfy,  out  of  pro- 
ceeds, §  550. 

Judgment,  sheriff  to  satisf}',  out  of  what 
property, §  550. 


ATTACHMENTS.  VIII.  Sale  of  prop- 
erty; disposition  of  property  or  pro- 
ceeds; increase  or  deficiency;  collec- 
tion of  debts  and  credits.  (Con- 
tinued.) 

Perishable  property,  how  sold,  §  547. 

Perishable  property,  proceeds  of,  §  550. 

Sale  of  property,  manner  of,  §  548. 

Sale  of  property,  may  be  as  under  execu- 
tion, §  548. 

Sale  of  property,  notice,  §§  548,  550. 

Sale  of  property  under  execution,  §  550. 

Sale  of  property  where  interests  of  par- 
ties require,  §  548. 

IX.     Inventory  and  return  by  sheriff. 
Inventory,  full,  sheriff  to  make,  §  546. 
Inventory,  how  made,  §  546. 
Memorandum   of  property,  §§  545,  546. 
Return  of  writ,  manner  of,  §  559. 
Return  of  writ,  time  for,  §  559. 
Eeturn,  what  to  state,  §  546. 

X.    Miscellaneous  provisions. 

Appeal  does  not  stay  unless  undertaking 
filed,  §  946. 

Appeal  from  order  respecting,  time  for, 
§939. 

Appeal  lies  from  order  respecting,  §  963. 

Judgment  for  plaintiff,  how  satisfied, 
§  550. 

Juror,  compelling  attendance  by  attach- 
ment, §  238. 

Justice's  court,  attachment  in,  §§  866- 
869.     See  Justices'  Courts,  VIII. 

Eecorder,  how  to  index  attachments, 
§542. 

ATTORNEY. 

I.  Admission;  license;  who  may  act  as; 

disqualification;  roll  of  attorneys. 
II.  Compensation  of. 
III.  Appointment  of. 

IV.  Change  and  substitution  of;  death  of. 
V.  Duties  and  powers  of. 
VI.  Removal  or  suspension. 
VII.  Miscellaneous  provisions. 

I.  Admission;  license;  who  may  act  as; 
disqualification;  roll  of  attorneys. 

Admission  after  examination,  §  277. 

Admission,  certificate  of,  and  license, 
§  277. 

Admission,  examination  of  candidates 
for,  §  276. 

Admission  from  other  state  or  country, 
§§  277,   279. 

Admission,  oath  on,  §  278. 

Admission  to  practice  law  on  diploma 
from  college  of  law  of  St.  Ignatius 
University,  §  280b. 

Admission  on  diploma  from  Hasting  Col- 
lege of  Law,  §  280a. 

Admission  on  diploma  from  Leiand  Stan- 
ford .Junior  University,  §  280b. 

Admission  on  diploma  from  San  Fran- 
cisco Law  School,  §  280b. 


INDEX.      VOL.    I. 


XVll 


ATTOKNEY.  I.  Admission;  license;  who 
may  act  as;  disqualification;  roll  of 
attorneys.     (Continued.) 

Admission  on  diploma  from  University 
of   Hanta  Clara,  §  2S0b. 

Admission  on  diploma  from  University 
of  Southern   California,  §  280b. 

Admission  on  diploma  from  Young 
Men's  Christian  Association  Law  Col- 
lege of  San  Francisco,  §  280b. 

Admission,   qualifications   for,  §  275. 

Admission,  testimonials  as  to  good  moral 
character,  §  276. 

Admission,  who  may  be  admitted  as, 
§275. 

Alien,  declaration  of  intention  to  become 
citizen,  §  275. 

Contempt,  practicing  without  license, 
§281. 

Disqualification,  judge  or  justice  having 
acted   as,  §  170. 

Disqualification  of  county  clerk  to  prac- 
tice, §  171. 

Disqualification  of  judge  to  practice. 
§171. 

Disqualification,  receiver,  attorney  dis- 
qualified to  be,  when,  §  566. 

Disqualification,  justice  not  to  practice 
before  another  justice,  §  103, 

Examination  of,  §  276. 

License,  may  practice  without,  in  what 
courts,  §  281. 

License  of  attorney,  §§  277-279. 

License,  oath  of  attorney,  indorsement 
of,  on,  §  278. 

License,  practicing  without,  is  contempt, 
§281. 

License,  practicing  without,  penalty  for, 
§281. 

List  of  attorneys,  clerks  of  district 
courts  of  appeal  to  transmit  to  su- 
preme court,  §  280. 

Roll,  attorney  must  sign,  §  280. 

Eoll  of,  how"  kept,  §  280. 

EoU  of,  clerk  of  district  courts  of  appeal 
to  keep  list  of,  §  280. 

Receiver,  disqualification  of  attorney  to 
act  as,  §  566. 

Roll  of,  striking  name  from,  §  299.  See 
post,  VI. 

What  courts  attorneys  may  practice  in, 
§277. 

Who  may  act  as,  in  justice's  court,  §  842. 

Who  may  act  as,  in  police  court,§  281. 

Who  may  not  act  as,  in  justice's  court, 
§96. 

II.     Compensation  of. 

Compensation  of,  left  to  parties,  §  1021. 

Fee  as  costs  in  action  for  wages  in  jus- 
tice's court,  §  924. 

Fees  in  foreclosure  suit,  §  726. 

Fees  in  partition,  §§  796,  798. 

Fees,  in  partition  proceedings  as  costs, 
§  763. 

Fees  where  injunction  vacated  or  dis- 
solved in  case  involving  waters,  §  532. 


ATTORNEY.      (Continued.) 

III.     Appointment  of. 
Appointment    of,    to   represent   party   in 

partition,  §  763. 
Partition,    appointment   of   attorney    in, 

§  763. 

IV.     Change  and  substitution  of;  death  of. 

Ceasing  to  act,  notice  to  appoint  substi- 
tute, §  286. 

Death  of  attorney,  notice  to  appoint  sub- 
stitute, §  286. 

Removal  of,  notice  to  appoint  substitute, 
§  286. 

Right  to  change   attorney,  §  284. 

Substitution,   how   made,  §284. 

Substitution,  notice  of,  §  285. 

V.     Duties  and  powers  of. 

Attachment,  attorney  may  give  written 
instructions   what  to   attach,  §  543. 

Authority  of,  §  283. 

Authority  to  acknowledge  satisfaction 
of  judgment,  §  283. 

Authority  to  bind  client,  §  283. 

Authority  to  receive  money,  and  dis- 
charge claim,  §  283. 

Death  of  party  entitled  to  appeal,  right 
of,  to  appeal,  §  941b. 

Duties  of,  generally,  enumerated,  §  282. 

.Jury  duty,  exempt  from,  §  200. 

May  practice  in  what  courts,  §  277. 

Pleadings,  subscribing  and  verifying, 
§  446. 

Receiver,  disqualification  to  act  as,  §  566. 

Replevin,  may  require  sheriff  to  take 
property  in, §  511. 

Retraxit,  authority  to  enter,  §  581. 

Satisfaction    of   judgment   by,  §  675. 

Service  may  be  on,  when,  and  when  not, 
§  1015. 

Service   of  intervention   on, §  387. 

Service  on,  for  non-resident,  §  1015. 

Service  on,  manner  of,  §  1011. 

Service  where  attorney  has  no  known 
office  in  state,  §  1015. 

Stipulations    of,  §  283. 

Verification  of  pleading  by,  §  446. 

Waiver  of  jury  by  attorney,  §  631. 

VI.     Removal  or  suspension. 

Accusation,  answer  to,  §§  293,  294,  296. 

Accusation,  appearance  to,  §  293. 

Accusation,  citation  to  answer,  §  292. 

Accusation,  contents  of  and  what  to  re- 
cite, §  292. 

Accusation,  demurrer  to,  §  295. 

Aceu.sation,  denial  of,  may  be  oral,  with- 
out oath,  §  295. 

Accusation,  objection,  no  particular 
form  necessary, §  295. 

Accusation,  objection  to  or  denial  of, 
§294. 

Accusation,  objection  to,  to  be  written, 
§  295. 

Accusation,  refusal  to  answer,  proceed- 
ings on,  §  297.  ■ 


XVIU 


INDEX.      VOL.    I.       §§  1-1059. 


ATTORNEY.     VI.  Removal  or  suspension. 

(Continued.) 
Accusation,  service  of,  §  292. 
Accusation,  service  by  publication,  when 

allowed   and   manner  of,  §  292. 
Accusation,    service    of    and    answer    to, 

§292. 
Accusation  to  be  verified,  §  291. 
Accusation  to  be  written,  §  290. 
Accusation,  what   must   state,  §  291. 
Appearance   after    accusation,  §  293. 
Appearance,    want    of,    proceedings    on, 

§293. 
Appearing  without   authority,  §  2S7. 
Citation,  §  292. 

Conviction  of  crime,  removal  for,  §  287. 
Conviction    of    felony    or    misdemeanor, 

clerk  to  transmit  copy  of  to  supreme 

court,  §  288. 
Grounds  for,  §  287. 
.Judgment,  §§  297,  299. 
Judgment  on  plea  of  guilty,  §  297. 
Judgment  on  refusal  to  answer,  §  297. 
Judgment   reviewable   on   appeal   by   su- 
preme  court,  §  287. 
Lending  name  to  another,  removal   for, 

§287. 
Notice  to  appoint  substitute  on  removal 

or  suspension,  §  286. 
Plea  of  guilty,  proceedings  on,  §  297. 
Proceedings,  how  instituted,  §  289. 
Proceedings  taken   upon  information   of 

another,  when,  §  289. 
Proceedings,  when  to  be  taken  by  court, 

§289. 
Eeference  to  take  deposition,  §  298. 
Removal  or  suspension,  order  may  be  re- 
viewed on  appeal,  §  287. 
Removal  or  suspension,  what  courts  may 

order,  §  287. 
Service    where    removed    or    suspended 

from  practice,  §  1015. 
Striking  name  from  roll,  §  299. 
Trial  on  denial  of  charges,  §  297. 

Vn.     Miscellaneous  provisions. 

Argument,  order  of,  at  trial,  §  607. 
Attendance  of,  on  legislature,  postpone- 
ment of  trial  for,  §  595. 
Contempt  for  practicing  without  license, 

§  281. 
Conviction   of   crime,   certificate   thereof 

to  supreme  court,  §  288. 
Death   of,   notice   to   appoint   substitute, 

§286. 
Exemption  from  jury  duty,  §  200. 
Exemption  of  property  of,  §  690. 
Judge     pro     tempore,    attorney    may    be 

selected  to   act   as,  §  72. 
Legislature,  continuance  of  trial  during 

attendance  of,  attorney  at,  §  595. 
Legislature,    extension    of     time    during 

attendance  on,  §  1054. 
List   of   attorneys   to   be    transmitted    to 

supreme  court,  §  280. 
Receiver,  disqualification  of  attorney  to 

act   as,  §  566. 
Supreme    court,    attorneys    of,    who    are, 

§275. 


ATTORNEY-GENERAL. 

Election  of,  where  prescribed,  §  262. 

May  practice  in  what  courts,  §  277. 

Need  not  verify  pleadings,  §  440. 

Powers  and  duties  of,  prescribed  by 
Political   Code   and   Penal   Code,  §  262. 

Usurping  office  or  franchise,  action  by, 
against  party,  §§  803-810.  See  Usur- 
pation of  Office. 

AUCTION. 

Bids.     See  Bids. 

Execution,  sale  on,  refusal  of  purchaser 

to  pay,  §§  695,  696. 
Execution  sale  to  be  at,  §  694. 
Partition  sale  to  be  at,  §  775. 
Sale  of  attached  vessel  at,  §  824. 

AUTHENTICATION. 

Seal,  affixing,  to  authenticated  copies, 
§153. 

AWARD.     See  Arbitration. 

B 

BAGGAGE. 

Sheriff  may  not  interfere  with,  on  at- 
tachment   of   vessel,  §  820. 

BAIL.     See  Arrest  and  Bail. 

BAILIFF. 

Of  supreme  court,  provisions  relating  to. 
§§265,  266. 

BANKRUPTCY. 

Jurisdiction    of    superior    court    in    cases 

of,  §  76. 
Jurisdiction   of   supreme   court   in   cases 

of,  §  52. 

BANKS. 

Dissolution.     See  Corporations. 

Limitation  of  action  against,  for  de- 
posit, §  348. 

Limitation    of     action    for    payment    of 
forged  or  raised  check,  §  340. 
BATTERY. 

.Jurisdiction  of  justice's  court,  §  115. 

Limitation  of  action  for,  §  340. 

BENEFICIARY. 

Need  not  be  joined  as  plaintiff,  §  369. 

BEQUESTS.     See  Wills. 

BICYCLES. 

Exemption  of,  §  690. 
BID. 

Execution  sale,  at.  §§  694-697. 
Liability  of  sheriff,  §  697. 
Officer  may  refuse,  when,  §  696. 
Refusal  to  pay,  §§  695-697. 

BILL  OF  COSTS.     See  Cosls. 

BILL    OF   EXCHANGE.     See    Negotiable 
Instruments. 
Complaint  may  be  copy  of,  §  853. 

BILL     OF     EXCEPTIONS.     See    Excep- 
tions. 
BILL  OF  PARTICULARS. 

Account,  items  of,  need  not  be  pleaded, 
§  454. 


INDEX.      VOL.    I.       §§  1-1059. 


XIX 


BILL  OF  PARTICULARS.     (Contiuued.) 
Demand  for,  §  454. 
Duty  to  furnish  on  demand,  §  454. 
Failure    to    furnish,    evidence    of,    pre- 
cluded, §  454. 
Further,  where  ordered,  §  454. 

BLANKS. 

Papers  issued  by  justice  of  peace  to  bo 
without,  except  subpoenas,  §  920. 

BOARD. 

Majority  may  act,  §  15. 

BOARD  OF  SUPERVISORS. 

Selection  of  jurors,  §  204. 

BOAT.     See  Shipping. 

BOND.     Surety;  Undertaking. 

Action  on,  justice's  jurisdiction,  §  112. 

Administrator's.  See  Executors  and  Ad- 
ministrators, III. 

Appeal.     See  Appeal,  IV. 

Appeal  in  justice's  court,  on.  See  Ap- 
peals,  XIII;   .Justices'   Courts,   XXTII. 

Approval  by  judge  at  chambers,  §  166. 

Chambers,  judge  may  approve   at,  §  166. 

City  or  town  need  not  give,  §  1058. 

Claim  of  property,  bond  on.  See  Execu- 
tions. 

Commissioner's  or  elisor's,  under  sale  on 
foreclosure,  §§  726,  729. 

Copy  of,  as  complaint  in  justice's  court, 
§853. 

Corporation  as  surety,  §§  1056,  1057. 

Court  commissioner,  power  to  take  and 
approve,  §  259. 

Executor's.  See  Executors  and  Admin- 
istrators, III. 

Fraudulent  conveyance,  bond  by  grantee 
in  suit  to  set  aside.  See  Fraudulent 
Conveyances. 

Indemnity.     See  Indemnity. 

Injunction,  bond  on  vacation  or  modifica- 
tion of,  §  532. 

Injunction,  respecting  waters,  vacated, 
bond  in  ease  of,  §  532. 

Injunction,  on.     See  Injunctions. 

Issuance  of  for  public  improvements, 
taxpayer  cannot  enjoin,  §  526a. 

Justice's  clerk,  of,  §  86. 

Limitation  in  action  on,  §  340. 

Municipalities  need  not  give,  §  1058. 

New,  failure  to  file,  where  sureties  be- 
come  insufficient,  rights   cease,  §  1057. 

New,  may  be  required  where  sureties  be- 
come insufficient,  §  1057. 

Not  required  of  state,  county,  city,  town, 
or  officer,  §  1058. 

Officer  need  not  give,  in  action  in  official 
capacity,  §  1058. 

Qualifications  of  sureties,  §  1057. 

Receiver,  of.     See  Receivers. 

Requisites  of,  in  general,  §  1057. 

Sale  of,  bonds  for  public  improvements 
cannot  be  enjoined,  §  526a. 

Several  actions  on,  costs  and  disburse- 
ments in  case  of, §  1023. 


BOND.     (Continued.) 

State  or  municipalities  need  not  give, 
§  1058. 

Surety  companies.  See  Surety  Com- 
panies. 

Taxpayer  cannot  enjoin  issuance  or  sale 
of  for   public   improvements,  §  526a. 

Time  to  file,  power  to  extend,  §  1054. 

Vacation  or  modification  of  injunction, 
bond  on,  §  532. 

BOOKS. 

Copies  from,  right  to  take.  See  Inspec- 
tion of  Writings. 

Inspection  may  be  ordered  and  copy 
taken,  §  1000. 

Inspection  of,  right  of.  See  Inspection 
of  Writings. 

Judgment-book  to  be  kept,  §  668. 

BOUNDARY. 

Adverse  possession,  §  325. 
Change    of,    succession    of    justices     of 
peace,  §  107. 

BREACH  OF  PEACE. 

.Jurisdiction,  §  115. 

BREACH  OF  PROMISE. 

To  marry,  sitting  of  court,  private,  §  125. 

BRIDGES. 

Cutting  trees  or  timber  to  repair,  dam- 
ages, §  734. 

BRIEFS. 

On  appeal.     See  Appeals,  VIII. 

BUILDING  AND  LOAN  ASSOCIATION. 

Exemption  of  shares  of  stock,  §  690. 
No  limitation  to  action  to  recover  money 
or  property  deposited  with  §  348. 

BUILDINGS. 

Exemption  of  building  material,  §  690. 

BURNT  OR  DESTROYED  RECORDS  OR 
DOCUMENTS. 

Nunc  pro  tunc  order,  papers  filed  under, 
effectual,  §  1046a. 

Proceedings  to  establish  title,  papers 
filed  nunc  pro  tunc  under  order  effect- 
ual, §  1046a. 

BUSINESS. 

Associates  may  be  sued  by  common 
name,  §  388. 


CALENDAR. 

Causes  must  remain  on,  till  when,  §  593. 
Clerk  must  enter  causes  on,  §  593. 
Dropping  causes  from,  §  593. 
Iniunction,    preference    of    hearing    and 

trial,  §  527. 
Restoring  causes  to.  §  593. 

CAPACITY. 

Want  of,  a  ground  of  demurrer,  §  430. 

CARRIER. 

Vessels,  liability  of,  on  contract  to  carry, 
§813. 


XX 


INDEX.      VOL.    I.       §§  1-1059. 


CAUSE  OF  ACTION.     See  Actions. 

CERTIFICATE. 

Appeal,  certificate  to  transcript,  §  953. 
Attorney's    admission     and     license,     of, 

§§277,  278. 
Certified  copies.     See  Certified  Copies. 
Clerk's,  of  jurors  drawn,  §  219. 
Deposit,   instead   of   bail,   certificate   of, 

§497. 
Execution  sale,  of,  §§  698,  699,  700a. 
Phonographic  reporter's  competency,  of, 

§270. 
Eedemption,  of,  §  703. 
Seal,  to,  §  153. 
Service  of  summons,  of,  §  415. 

CERTIFIED  COPIES.     See  Certificate. 

CERTIORARI.     See  Review. 

CESTUI  QUE  TRUST.     See  Tnists. 
Need  not  be  joined  as  plaintiff,  §  369. 

CHALLENGE.     See  Jurors. 

CHAMBERS. 

Duty  of  sheriff  to  provide,  §  144. 
Power  of  court  at,  §  176. 
Power  of  judges  at,  §§  165, 166. 
Writs  and  process,  necessary,  may  be  is- 
sued at,  §  166. 

CHANGE    OF    VENUE.       See    Place     of 
Trial. 

CHARITABLE  ORGANIZATIONS. 

Officers    or   employees    of,    exempt   from 
jury  duty,  §  200. 

CHATTEL  MORTGAGE. 

Undertaking    on    appeal    from    order    of 
foreclosure,  §  943. 

CHECKS. 

Limitations  in  action  on  forged  or  raised 
check,  §  340. 

CHIEF     JUSTICE.     See     Supreme     Court 
Justices. 

CHILDREN.     See  Infant. 

CHOSE  IN  ACTION. 

Assignment  of,  not  to  prejudice  defense, 
§368. 

CITATION, 

Attorney,  to  answer  accusation,  §  292. 
Garnishee,  to,  §  545. 

CITIZEN. 

Bailiffs  and  secretaries  of  supreme  court 

shall  be,  §  265. 
.Justice  of  peace  shall  be,  §  159. 

CITY.     See  Municipal  Corporation, 

CITY  AND  COUNTY. 

Action   by   or  against,   stipulation   as   to 

place  of  trial,  §  394. 
Transfer  of  actions  by  or  against,  §  394, 
Venue  of  actions  against,  §  391. 

CITY  ATTORNEY. 

Nuisance,  may  sue  to  abate,  §  731. 


CITY  ATTORNEY.      (Continued.) 

Nuisance,  city  attorney  and  district  at- 
torney have  concurrent  right  to  abate, 
§731. 
Nuisance,    to    abate,    when    directed    by 
supervisors,  §  731. 

CIVIL  ACTION.     See  Actions. 

CLAIM  AND  DELIVERY. 

AfR<lavit  for,  must  state  what,  §  510. 

Affidavit  for,  necessary,  §  510. 

Affidavit  for,  when  and  where  filed, 
§  520. 

Affidavit  misstating  value  does  not  bind 
sheriff  or  sureties,  §  473. 

Affidavit,  who  to  make,  §  510. 

Agent,  service  of  order  on,  §  512. 

Agent,  taking  property  from,  §  512. 

Alternative  judgment  in  favor  of  plain- 
tiff or  defendant,  §  667. 

Answer,  claim  to  be  made  before,  §  509. 

Application  to  be  made  party  in  action 
to  recover  personalty'',  §  389. 

Claim  of  property,  duty  of  sheriff,  §  519. 

Concealed  property,  how  taken,  §  517. 

Costs  of  course  allowed  when,  §  1022. 

Costs  when  recovery  less  than  three  hun- 
dred dollars,  §  1025. 

Damages  for  detention,  §  667. 

Delivery  to  defendant,  §  515. 

Delivery  to  plaintiff,  §§  514,  515. 

Delivery,  when  may  be  claimed,  §  509. 

Fees  and  expenses  for  taking  and  keep- 
ing, §  518. 

Issues  of  fact,  how  tried  in,  §  592. 

Judgment  in  action  against  sheriff  or 
sureties   should  give   real  value,  §  473. 

Judgment  in  the  alternative,  for  plain- 
tiff or  defendant,  §  667. 

Justice's  court,  in,  §  870.  See  Justices' 
Courts,  XVIII. 

Justice's  court,  in,  where  to  be  brought, 
§  832. 

Limitation  of  action  of,  §  338. 

Notice,   when   and  where   filed,  §  520. 

Plaintiff,  when  may  claim  propertv, 
§  509. 

Possession,  duty  of  sheriff  to  take,  §  512. 

Property,  how  kept  by  sheriff,  §  518. 

Protection  of  plaintiff  in  possession  after 
deliver}'  to  him,  §  521. 

Redelivery,  defendant  excepting  to  sure- 
ties cannot  reclaim  property,  §§  513, 
514. 

Redelivery,  failure  to  claim,  delivery  of 
property  to  plaintiff,  §  514. 

Redelivery,  undertaking,  justification  of 
sureties,  §  515. 

Redelivery,  undertaking  of  defendant, 
§514. 

Redelivery,  when  defendant  entitled  to, 
§514. 

Requisition  to  sheriff  to  take  property, 
§511. 

Service  of  copy  of  affidavit,  notice  and 
undertaking,  upon  whom  and  how 
made,  §  512. 

Service  of  order  on  defendant,  §  512. 


INDEX.      VOL.    I.       §§  1-1059. 


XXl 


CLAIM  AND   DELIVERY.      (Continued.) 

Sheriff,  diitv  of,  to  take  possession,  §  512. 

Sheriff,  fees  of,  §  518. 

Sheriff,  liability  for  defendant's  sureties, 
§515. 

Sheriff,  liability  of,  for  plaintiff's  sure- 
ties, §513. 

Sheriff,  liability  to  third  person,  §  512. 

Sheriff  may  show  true  value  in  action 
against  him,  §  473. 

Sheriff's   return,  §  520. 

Sheriff  to  retain  property,  pending  jus- 
tification  of  defendant's  sureties,  §  575. 

Third  person,  claim  of  property  by,  §  519. 

Third  person,  claim  of  property  by,  affi- 
davit, §  519. 

Third  person,  claim  of  property  by,  un- 
dertaking of  plaintiff,  §  519. 

Third  person,  claim  of  property  by, 
validity,  §  519. 

Time  when  delivery  may  be  demanded, 
§509. 

Title,  effect  of  judgment  on,  §  1908. 

Undertaking,  action  on,  sureties  may 
show  real  value,  §  473. 

Undertaking  of  defendant,  §  514. 

Undertaking  of  plaintiff,  exception  to 
sureties,  defendant  cannot  reclaim 
property  afterwards,  §§  513,  514. 

Undertaking  of  defendant,  justification 
of  sureties,  §  515. 

Undertaking  of  defendant,  justification 
of  sureties,  failure  of,  §  515. 

Undertaking  of  defendant,  liability  of 
sheriff  for  sureties,  §  515. 

Undertaking  of  plaintiff,  §  512. 

Undertaking  of  plaintiff,  and  proceed- 
ings in  serving  order,  §  512. 

Undertaking  of  plaintiff,  exception  to 
sureties,  §  513. 

Undertaking  of  plaintiff,  exception  to 
sureties,  failure  to  make,  waiver  bv, 
§513. 

Undertaking  of  plaintiff,  qualification  of 
sureties,  §  516. 

Undertaking  of  plaintiff  where  third  per- 
son claims  property,  §  519. 

Undertaking,  responsibility  of  sheriff  for 
plaintiff's  sureties,  §  513. 

Undertaking,  when  and  where  filed, 
§520. 

Verdict  in,  requisites  of,  §  G27. 

Verdict  in,  what  to  find  and  assess,  §  637. 

When  lies,  §  509. 

Who  may  maintain  action,  §  509. 

CLAIM  OF  PROPERTY. 

In  attachment,  §  549. 

In  execution,  §§  689,  694.    See  Execution. 

In  replevin,  §  519. 

CLAIMS. 

Adverse,  §§  738-751.     See  Adverse  Claim. 
Preferred,  claims  for  wages  are,  §  825. 

CLERGYMEN. 

Exemption  of,  from  jury  duty,  §  200. 

CLERK. 

Absence  of  judge,  duty  in  case  of,  §  139. 


CLERK.      (Continued.) 

Appeal,  notice  to  clerk  on,  §  953a. 
Appeal,  transmission  of  record  on,  §  953c. 
Calendar,  entry  of  causes  of,  §  503. 
Certified  list  of  jurors  to  be  filed   with, 

§208. 
County  clerk.     See  County  Clerk. 
Dejiosit  in  court,  duties  of.     See  Deposit 

in  Court. 
Election  of,  where  prescribed,  §  262. 
Judgment,  to  enter,  §  664. 
Judgment,  time  to  enter,  §  664. 
Judgment-book  to  keep,  §  668. 
Judgment-docket,  to  keep,  §§  671-673. 
Judgment  roll,  to  make  up,  §  670. 
Jury,  drawing  of,  §§  215,  219. 
Justice's,  §  86-97.     See  .Justice's  Clerk. 
Must  enter  causes  on  calendar,  §  593. 
Must  indorse   on   complaint,   what,  §  406. 
Must  keep  register  of  actions,  §  1052. 
Partition    sale,    to    invest    proceeds    of, 

§789. 
Partition   sale,   duty   of,   on   investment, 

§791. 
Register  of  actions,  to  keep,  §  1052. 
Register  of  actions,  what  to  be  entered 

in,  §  1052. 
Roll  of  attorneys,  to  keep,  §  280. 
Seal  of  court,  to  keep,  §  152. 
Service  may  be  made  on,  when,  §  1015. 
Supreme  court,  election   of,  §  262. 
Supreme  court,  of,  §  2G2. 
Testimony,  to  take,  when  no   shorthand 

reporter,  §  1051. 

CLOSED  DOORS. 

Trial  with,  §  125. 

CLOUD   ON  TITLE.     See  Quieting  Title. 
Parties  in  action  to  remove,  §  381. 

CODE  OF  CIVIL  PROCEDURE. 

Action  pending,  how  affects,  §  8. 
Amendment  of,  §  19. 
Cited,  enumerated,  etc.,  how,  §  19. 
Construction  of  provisions  in  derogation 

of  common  law,  §  4. 
Construction  of  provisions  similar  to  ex- 
isting laws,  §  5. 
Construction  of  words  and  phrases,  §  16. 
Construction  of.     See  Construction. 
Construed   liberally,  §  4. 
Continuation    of   existing  statutes,  §  5. 
Divided  into  four  parts,  §  1. 
Establishes  law  on  subjects  to  which  it 

relates,  §  4. 
Forms  and  rules  of  pleading  prescribed 

by,  §  421. 
Is  continuation  of  statutes  and  common 

law,  §  5. 
Justice's    court,    sections    applicable    to, 

§  925. 
Limitation  statute,  how  code  affects,  §  9. 
No   statute   continued   in   force   because 

consistent  with,  §  18. 
Not  retroactive,  §  3. 
Oflice,  repeal  of,  by  code,  §  7. 
Penal  Code,   provides  for  prosecution  of 

criminal   action,  §  31. 


XXll 


INDEX.       VOL.    I.       §§  1-1059. 


CODE    OF    CIVIL    PROCEDURE.      (Con- 
tinued.) 
Private  statutes  not  repealed  by,  §  18. 
Eepeal  by,  does  not  affect  existing  rights, 

§18. 
Repeal  by,  does  not  revive  former  laws, 

§18. 
Repealing  effect,  §  18. 
Retroactive  effect,  §  3. 
Rights  existing  or  accrued  not  affected 

by,  §  18. 
Rights  not  affected  by,  §  8. 
Statutes  consistent  with,  effect  on,  §  18. 
Statutes  in   derogation    of   common    law, 

construction  of,  §  4. 
Statutes  not  expressly  continued  in  force 

repealed  by,  §  18. 
Statutes  repealed  by,  §  18. 
Tenure  of  office,  how  affected  by,  §§  6,  7. 
When  takes  effect,  §  2. 
Words   in,   construction   of.     See   Words 

and  Phrases. 

CODICIL. 

Will  includes,  §  17. 

COLOR  OF  TITLE.  See  Adverse  Posses- 
sion. 

COMMISSION. 

To  take  testimony.     See  Deposition. 

COMMISSIONER.       See     Court     Commis- 
sioner. 
Findings  of,  force  and  effect  of,  §  644. 
Findings,  judgment  on,  §  644. 
Foreclosure,  suits  for,  commissioners  in, 

§726. 
Insurance.     See  Insurance  Commissioner. 

COMMON  LAW. 

(!ode  continuation  of,  §  5. 
Statutes   in   derogation    of,   construction 
of,  §  4. 

COMPENSATION.     See  Salary. 

Attorney's  generally,  §  1021.  See  Attor- 
neys, II. 

Commissioner's  at  foreclosure  sale,  §  729. 

Elisor's,  for  summoning  jurors,  §  228. 

Judge  presiding  over  extra  session  of  su- 
perior court,  §  67b. 

Partition  proceedings,  in.  See  Parti- 
tion. 

Referees,  §  1021. 

COMPLAINT.  See  Justices'  Courts; 
Pleading. 

Action  commenced  by  filing,  §  405. 

Action  commenced  when  filed,  §  350. 

Allegations,  material,  not  controverted, 
deemed  true,  §  462. 

Allegations,  material,  what  are,  §  463. 

Amended,  answer  to,  §  472. 

Amended,  filing  and  service  of,  §  472. 

Amended,  in  partition,  §  761. 

Amended  of  course,  §  472. 

Amendment  of,  §§  472,  473.  See  Amend- 
ment. 

Answer  to,  shall  contain  what,  §  437. 
See  Answer. 


COMPLAINT.     (Continued.) 

Boats,  in  actions  against,  §§  814,  815. 

Causes  of  action  to  be  separately  stated, 
§427. 

Cloud  on  title,  §  738. 

Conditions   precedent,  §  457. 

Contains  what,  §  426. 

Death,  §  385. 

Default  of  defendant,  judgment  cannot 
exceed  amount  demanded,  §  580. 

Defective  heading,  §  1046. 

Demand  for  inspection  of  instruments 
and  refusal  of,  §  449. 

Demurrer,  sustaining,  time  to  amend, 
§476. 

Demurrer  to,  §§  422,  430,  431. 

Demurrer  to.     See  Demurrer. 

Description  of  real  property,  in  eject- 
ment, §  455. 

Ejectment,  in,  description  of  property, 
§455. 

Fictitious  name,  when  party  may  be 
sued  by,  §  474. 

First  pleading  of  plaintiff,  §  425. 

Genuineness  of  instruments,  how  contro- 
verted, §  448. 

Genuineness  of  instruments  in,  when  ad- 
mitted, §  447. 

Genuineness  of  instrument,  when  not  ad- 
mitted, §  449. 

In  particular  actions.  See  particular 
title. 

Indorsed,  how,  §  406. 

Indorsement  on  by  clerk  of  day,  year 
and  month  of  filing,  §  406. 

Joinder,  what  actions  may  be  joined, 
§427. 

Judgment  roll  as  part  of,  §  670. 

Justice's  court,  in.  See  Justices'  Courts, 
V. 

Libel,  how  stated  in,  §  460. 

Liberally  construed,  §  452. 

Lost,  how  supplied,  §  1045. 

Material  allegations  not  controverted 
taken  as  true,  §  462. 

New  matter  in  answer  deemed  denied, 
§462. 

Objection  not  appearing  on,  may  be 
taken  by  answer,  §  433. 

Objections  to,  what  cannot  be  waived, 
8  434. 

Objections,  when   deemed  waived,  §  434. 

Particulars  of  claim,  §  454. 

Partition,in,  §  753. 

Pleading,  as  a,  §  422. 

Police  court,  in,  §§  929-931. 

Quo  warranto,  in,  requisites,  §  804. 

Service  of,  copy  to  be  served  on  each  de- 
fendant, §  410. 

Service  of,  with  summons,  §  410. 

Ships,  in  actions  against,  §§  814,  815. 

Signature  to,  §  446. 

Slander,  how  stated  in,  §  460. 

Statement  of  cause  of  action,  how  made, 
§426. 

Statutes  pleaded  how,  §  459. 

Supplemental,  in  partition,  §  761. 

Supplemental,  when  allowed,  §  464. 


INDEX.      VOL.    I.       §§  1-1059. 


XXlll 


COMPLAINT.      (Continued.) 

Time,  power  of  court  to  extend,  §  1054. 

Variance,  amendment,  §§  469,  470. 

Verification  not  necessary  where  state, 
county,  or  oflScer  a  party,  §  44C. 

Verification  of,  §  446. 

Verification  of.     See  Verification. 

Verified,  in  action   against  ship,  §  815. 

What  to  contain,  §  426. 

Written  instruments,  demand  for  inspec- 
tion, §  449. 

COMPOUNDING. 

See  Compromise, 

COMPROMISE. 

Costs  on  offer  of,  §  997. 

Guardians  or  guardians  ad  litem,  author- 
ity to  compromise  claim,  §  372. 

Judgment,  entry  of,  on  acceptance  of 
offer,  §  997. 

Offer  of,  as  evidence,  §§  895,  997. 

Offer  of,  before  trial  in  justice's  court, 
and  its  effect,  §  895. 

Offer  of,  how  made,  and  its  effect,  §  997, 

Receiver  may,  §  568. 

COMPUTATION. 

Of  time  §  12. 

Superior  judge  of  years  of  office  of,  §  G9. 

CONCEALED. 

Defendant,  service,  how  made  on,  §412. 
Property,  possession  of,  how  demanded, 
§  517. 

CONCLUSIONS     OF     LAW.      See     Court 
Commissioners;    Findings;    "Reference. 
Erroneous,  vacation  of  judgment,  §§  663, 
6631/.. 

CONCURRENT  JURISDICTION. 

Justices'     courts     and     superior     courts, 

§  113. 
Justices'   courts   and   superior   courts,   in 

cases  of  forcible  entry, §  113. 

CONDITIONS. 

Precedent,  how  pleaded,  §§  457,  459. 

CONDUCTOR. 

Exempt  from  jury  duty,  §  200. 

CONFESSION  OF  JUDGMENT.     See  .Jus- 
tices' Courts,  XX. 

CONFLICTING  CLAIMS. 

(Quieting  title  to.     See  Quieting  Title. 

CONFLICT  OF  LAWS. 

Attachment,  §  537. 

Injunction    to    stay    proceedings    in    for- 
eign state,  §  526. 
Limitation  of  actions,  §  361. 

CONSANGUINITY.     See  Affinity. 

.Tudge  or  justice,  as  disqualifying,  §  170. 
Juror,  as  disqunlifving,  §  602. 
Receiver,  as  disqualifying,  §  566. 
Referee,  as  disqualifying,  §  641. 

CONSENT. 

Waiver  of  findings  by,  §  634. 
Waiver  of  jury  by,  §  631. 


CONSENT.     (Continued.) 

W'ant    of,    reference    ordered    on    motion 

when,  S  63!'. 

CONSOLIDATION. 

Of  actions,  when  njiay  be  ordered,  §  1048. 

CONSTABLES. 

Attorney,   constable   may   not   act   as,   in 

justice's  court,  §  842. 
Exemption  of  property  of,  §  690. 
Limitation  of  action  against,  §  339, 

CONSTITUTION. 

Attorneys  to  support,  §  282. 

CONSTRUCTION. 

Code  continuation  of  statutes  and  com- 
mon law,  §  5. 

Code  liberally  construed,  §  4. 

Code,  of,  rules  of,  §§4,  5,  7. 

Code,  of.     See  Code  of  Civil  Procedure. 

Instruments.     See  Contracts. 

Particular  words.  See  Words  and 
Phrases. 

Phrases,  of,  §  16.    See  Words  and  Phrases. 

Pleadings,  liberally  construed,  §  452. 

Statutes  in  derogation  of  common  law, 
§4. 

Statutes,  of.     See  Statutes. 

Technical  words  and  phrases,  of,  §  16. 

Words,  as  to  tense,  gender,  number,  §  17. 

Words,  of,  §  16.     See  Words  and  I'hrases. 

Words,  particular,  in  code,  §  17.  See 
Words  and  Phrases. 

CONSTRUCTIVE  NOTICE.     See  Notice. 

CONSTRUCTIVE  SERVICE. 

Service  by  publication.     See  Summons. 

CONTEMPT. 

Attorney,  practicing  law  without  license, 
§  281. 

Disobedience  of  order  for  inspection  of 
writings,  §  1000. 

Justice's  court,  in,  §§  906-910.  See  Jus- 
tices' Courts,  XVII. 

Non-residents,   service   of   papers,  §  1015. 

Power  of  judicial  officer  to  punish  for, 
§178. 

Practicing  law  without  license,  §  281. 

Repeated  applications  for  orders,  §  183. 

Second  application  for  order  a,  §  183. 

Service  of  process  in,  §§  1015,  1016. 

Subsequent  applications  for  orders  re- 
fused by  another  judge,  §  183. 

Supplementary  proceedings,  disobeying 
orders  in, §  721. 

Writings,  disobedience  to  order  for  in- 
spection of,  §  1000. 

CONTINUANCE. 

Absence  of  attorney,  §  595. 

Absence  of  evidence,  showing  required, 
§  595. 

Absence  of  judge,  proceedings  on,  §  139. 

Absence  of  party,  §  595. 

Absence  of  witness,  admission  as  to  testi- 
mony, §  595. 

Absence  of  witness,  affidavit,  what  to 
state, §  595. 

Absence  of  witness,  procedure,  §  595. 


XXIV 


INDEX.      VOL.    I.       §§  1-1059. 


CONTINTTANCE.     (Continued.) 

Adjournment.     See  Adjournment. 

Affidavit  for,  §  595. 

Attorney,  party  or  witness  attending  on 
legislature,  §  595. 

Costs  may  be  imposed  as  condition  of, 
§  1029. 

Deposition  of  witnesses  may  be  taken 
on,  §  596. 

Depositions  taken  on,  as  evidence,  §  596. 

Jury,  continuance  of  cause  when  jury  re- 
quired, §  214. 

Jury,  demand  of,  continuance  of  cause, 
§214. 

Justice's  court,  §§  873-877.  See  Justices' 
Courts,  XIII. 

Legislature,  attendance  of  attorney, 
party,  or  witness  on,  §  595. 

Mining  property,  continuance  of  action 
involving,  to  do  development  work, 
§595. 

Order  refusing  deemed  excepted  to,  §  647. 

Partition,  continuance  in,  for  purpose  of 
determining  respective  claims,  §  774. 

Temporary  restraining  order,  continu- 
ance of  hearing,  §  527. 

CONTKACTS. 

Adverse  claim  arising  out  of,  action  to 
determine,  §  1050. 

Arrest,  defendant  when  subject  to,  in  ac- 
tion on, §  479. 

Attachment,  when  ground  for,  §  537. 

Breach  of,  not  enjoined  where  not  spe- 
cifically enforceable,  §  526. 

Issues  of  fact,  how  tried  in  actions  aris- 
ing out  of,  §  592. 

Joinder  of  actions  arising  out  of,  §  427. 

Joinder  of  persons  severally  liable,  §  383 

•Joint.     See  Joint  Contracts. 

Limitation  of  action  on  unwritten,  §  339. 

Limitation  of  action  on  written,  §  337. 

Limitation  of  action  on  written,  executed 
out  of  state,  §  339. 

Obligation  arises  from  contract  or  opera- 
tion of  law,  §  26. 

Obligation,  definition,  §  26. 

Seal.     See  Seal. 

Set  out  in  answer,  when  deemed  ad- 
mitted, §  448. 

Several  actions  on,  costs  and  disburse- 
ments in  ease  of,  §  1023. 

Specific  kind  of  money,  contract  payable 
in, §  667. 

Successive  actions  on,  §  1047. 

CONTRIBUTION.     See  Surety. 

Judgment  debtors,  among,  right  of,  §  709. 
Judgment    debtors,    contribution    among, 
how  enforced,  §  709. 

CONVEYANCE.     See  Deeds. 

CONVICTION. 

Attorney,  conviction  of  crime,  proceed- 
ings on,  §  288. 

COPARCENERS. 

Anv  number  may  sue  or  defend  for  all, 

§§  381,  .384. 
Joinder  of,  as  parties,  §§  381,  384. 


COPARCENERS.     (Continued.) 

Parties  in  suits  concerning,  §§  381,384. 
Partition.     See  Partition, 

COPY. 

Amendments,  copies  to  be  served,  §  432. 
Demanding,  of  writing,  §  1000. 
Lost  paper,  of,  when  may  be  used,  §  1045. 
Lost  pleading  or  paper,  supplied  by  copy, 

§  1045. 
Eecord,  copy  requires  seal,  §  153. 
Writing,  demanding  copy  of,  §  1000. 
Writing,  pleadings,  effect  of  setting  forth 

in,  §§  447-449. 

CORONER. 

Election  of,  where  prescribed,  §  262. 
Limitation  of  action  against,  §  339. 
Powers    and    duties    of,    prescribed    by 
Political  Code  and  Penal  Code,  §  262. 

CORPORATION. 

Appeal  from  order  directing  inspection 
of  books,  etc.,  as  a  stay,  §  949. 

Attachment  of  stock,  §§  541,  532. 

Dissolution,  receiver,  at  whose  instance 
appointed,  §  565. 

Dissolution,  receiver,  duties  of,  §  565. 

Dissolution,  receiver  of,  when  appointed, 
§§564,565. 

Execution,  stocks,  etc.,  subject  to,  §  688. 

Foreign,  new  or  additional  security  for 
costs,  §  1036. 

Foreign,  publication  of  summons,  §§  412, 
413. 

Foreign,  security  for  costs,  §  1036. 

Foreign,  security  for  costs,  dismissal 
where  not  given,  §  1037. 

Foreign,  security  for  costs  may  be  re- 
quired, §  1036. 

Foreign,  security  for  costs,  stay  until 
filed, §  1036. 

Foreign,  security  for  costs,  time  to  give, 
§  1037. 

Foreign,  service  of  summons  on,  §  411. 

Injunction  to  suspend  business  of,  neces- 
sity of  notice,  §  531. 

Juror,  relationship  to  officer  of  corpora- 
tion as  a  disqualification,  §  602. 

Limitation  of  actions  against  directors 
and  stockholders,  §  359. 

Limitation  of  action  to  recover  stock 
sold  for  delinquent  assessment,  §  341. 

Proceedings  against  corporation  unlaw- 
fully exercising  franchise,  §  803. 

Quo  warranto,  §  803. 

Receiver  for,  on  insolvency  or  forfeiture, 
§  564. 

Receiver  upon  dissolution  of,  §§  564,  565. 

Shares  in  corporation,  how  levied  on, 
§  688. 

Stock  and  interest  in,  subject  to  execu- 
tion, §  688. 

Stock,  attachment  of,  §§  541,  542. 

Stock  sold  for  delinquent  assessment, 
limitation  of  action  to  recover,  §  341. 

Stockholders,  limitation  of  actions 
against,  §  359. 

Summons,  publication,  §§  412,  413. 

Summons,  service  on,  §  411. 


INDEX.      VOL.    I.       §§  1-1059. 


XXV 


CORPORATION.     (Continued.) 

Surety,  cor})oratiou  as.     See  Surety. 
Surety  or  guarantor,  as,  §§  1056,  1057. 
Usurpation      of     francliise     by,     action 

against,  §  S03.     See       Usurpation       of 

Oflice  or  Franchise. 
Verification    of    pleading    by    oflieer    of, 

§  44G. 
Verification,  who  may  make,  §  44G. 

COSTS. 

Actions  expressly  authorized  by  statute, 

costs  in,  §  lUIil. 
Affidavit  of,  §  lu;^3. 
Allowance  of,  authorized,  §  1021. 
Allowed   defendant,   of   course,   in   what 

actions,  §  1024. 
Allowed  plaintiff,  of  course,  in  what  ac- 
tions, §  1022. 
Amendment     for     variance,     costs     on, 

§§469,470. 
Amendment,     imposition     of     terms     on 

allowance  of,  §§  473,  859. 
Amendment  of  pleading,  of  course,  with- 
out, §  472. 
Amount  of  recovery  as  determining  right 

to, §§  1022,  1025. 
Answer,  after  time,  imposition  of  terms, 

§473. 
Answer,  imposing  costs,  on  allowance  of, 

§472. 
Answer,  sham,  on  striking  out,  §  453. 
Appeal,  frivolous,  on,  §§  957,  980. 
Appeal,   of,   discretionary   with   court   in 

what  cases,  §  1027. 
Appeal,  on,  execution  therefor,  §  1034. 
Appeal,  on,  how  claimed  and  recovered, 

§  1034. 
Appeal,  on,   memorandum  of,  filing  and 

service,  §  1034. 
Appeal,    on,    memorandum,    verification, 

§  1034. 
Appeal,  on  review  of  special  proceedings 

other  than  by  appeal,  §  1032. 
Appeal,  remittitur,  costs  after,  §  1034". 
Appeal  to  superior  court,  on,  §  9S0. 
Appeal,  on.     See,  also,  Appeals,  XI. 
Apportionment  of,  §  1025. 
Assessment,    action    involving    validity, 

§§1022,1024. 
Attachment,   on   refusal   to   give    memo- 
randum, §  546. 
Attorneys'    fees,    in    action    in    justice's 

court  for  wages,  §  924. 
Attorneys'  fees,  in  foreclosure,  §  726. 
Attorneys'  fees,  in  injunction  suits,  §  532. 
Attorneys'  fees,  in  partition,  §§  763,  796, 

798. 
Attorneys'  fees.     See  Attorneys,  II. 
Bill  of,  contents  of,  §  1033. 
Bill  of,  filing  and  serving,  time  for,  §  1033. 
Bill  of,  motion  to  tax,  §  1033. 
Bill  of,  notice  of  motion  to  tax,  time  to 

file,  §  1033. 
Bill  of,  verification  of,  §§  1033, 1034. 
Change  of  venue  in  justice's  court,  costs 

on,  §  836. 
Change  of  venue,  who  to  pay,  §  309. 


COSTS.      (Continued.) 

Compromise,  costs  when  offer  of,  rejected, 

§§  895,997. 
Continuance,  costs  may  be  imposed  as  a 

condition  of,  §  1029. 
Corporation,    non-resident,    undertaking 
for  costs,  §  1036. 

County,  against,  how  paid,  §  1039. 

Damages,   costs   in   actions   for,   §§  1022, 
1025. 

Default  judgment  includes,  §  585. 

Defendant,   allowed,  of   course,   in   what 
actions,  §  1024. 

Defendants,  several,  not  united  in  inter- 
est, costs,  §  1026. 

Discretionary,  are,  in  what  cases,  §§  1025, 
1027. 

Execution  purchaser  refusing  to  comply 
w-ith  bid,  liability  for,  §  695. 

Executors,      actions     by      and     against, 
§§  1031,  1059. 

Fees  of  referee,  amount  of,  §  1028. 

Fees  of  shorthand  reporters,  §  274. 

Fine,  municipal,  action  involving  valid- 
ity of,  §§  1022,  1024. 

Foreclosure  suit,  in,  §  726. 

Frivolous  appeal,  on,  §§  957,  980. 

Garnishee  refusing  to  give  memorandum 
of  credits  subject  to, §  546. 

Judgment  by  default,  allowance  of,  §  585. 

Judgment,  costs  to  be  included  in,  §  1035. 

.Judgment,  insertion  of,  in,  §  1035. 

Judgment,    relief    from,    imposition     of 
terms,  §§  473,  859. 

Justice's  court,  in,  included  in  judgment, 
§896. 

Justice's    court,    in,    on    amendment    of 
pleadings,  §  859. 

Justice's  court,  in,  prevailing  party  en- 
titled to,  §  924. 

Justice's   court,  in,  where  offer   of  com- 
promise, §  895. 

Justice's   court,   in,  §§  91,   896,   924.     See 
.Justices'  Courts,  XXII. 

Money,  costs  in  action  for  recovery  of, 
§§1022,1025. 

Non-resident  plaintiff  a  foreign  corpora- 
tion, undertaking  for,  §  1036. 

Nonsuit,  on,  §  581. 

Of  course,  to  defendant,  in  what  cases, 
§  1024. 

Of    course,   to    plaintiff,   in    what    cases, 
§  1022. 

Partition,  in,   §§  768,   769,  771,  796,  799. 
See  Partition. 

Partition,  of,  a  lien  on  shares  of  parcen- 
ers, §  796. 

Plaintiff  allowed,  of  course,  in  what  ac- 
tions, §  1022. 

Poor  litigants,  waiver  of  fees,  §  91. 

Postponement  of  trial,  on,  §  1029. 

Quiet  title,  not  allowed  on  default  or  dis- 
claimer, §  739. 

Quo  warranto,  in,  §  809. 

Real  estate,  actions  involving  title  to  or 
possession  of,  §§  1022,  1024. 

Real  property,  in  action  for  recovery  of, 
§§  1022,1024. 

Referee's  fees,  §§  768, 1028. 


XXVI 


INDEX.      VOL.    I.       §§  1-1059. 


COSTS.      (Continued.) 

Remittitur,  filing  costs  after,  §  1034. 

Eeview  of  special  proceedings,  other 
than  by  appeal,  on,  §  1032. 

Security,  additional  or  new,  or  non-resi- 
dent or  a  foreign  corporation, §  1036. 

Security  for,  in  justices'  courts,  §  923. 

Security  not  given  for,  action  dismissed, 
§  1037. 

Security,  time  to  give  for,  §  1037. 

Security,  when  plaintiff  non-resident  or 
a  foreign  corporation, §  1036. 

Security  where  plaintiff  non-resident  or 
a  foreign  corporation,  stay  until  given, 
§  1036. 

Separate  defenses,  costs  in  case  of,  §  1026. 

Several  actions  brought  on  single  cause, 
carry  costs  in  but  one,  §  1023. 

Several  defendants  not  united  in  inter- 
est, costs,  §  1026. 

6ham  answer,  costs  on  striking  out,  §  453. 

Shorthand  reporter,  fees  of,  §  271. 

Special  proceedings,  costs  of  course  in, 
§§1022,1024. 

Special  proceedings,  costs  of  review  of, 
other  than  by  appeal,  §  1032. 

State,  awarded  against,  how  paid,  §  1038. 

Statute,  costs  in  actions  expressly  au- 
thorized by,  §  1031. 

Tax,  impost,  or  assessment,  action  in- 
volving validity,  §§  1022, 1024. 

Tender,  how  affects,  §  1030. 

Three  hundred  dollars,  not  allowed  when 
recovery  less  than,  §  102.5. 

Transfer  of  action  to  another  court,  for, 
§  39&. 

Trustees,  in  actions  by  and  against,  §  1031. 

Undertaking,  additional,  when  plaintiff 
non-resident,  §  1036. 

Undertaking,  when  plaintiff  non-resident 
or  foreign  corporation,  §  1036. 

Usurpation  of  office  or  franchise,  costs 
in  action  for,  §§  809,810. 

Verification  of  memorandum  of  costs, 
§  1033. 

Wages,  attorneys'  fees  as  in  actions  for 
in  justices'  courts,  §  924. 

When  allowed  in  discretion  of  court, 
§  1025. 

When  tender  made  before  suit,  §  1030. 

CO-TENANTS. 

Any  number  mav  sue  or  defend  for  all, 

§§  381,  384. 
Parties,  claimants  under  common  source 

of  title  may  unite,  §  381. 
Parties  in  suit  concerning,  §§  381,  384. 
Partition    and'  disribution    of   estates   of 

decedents.     See  Estates  of  Decedents. 
Partition,  may  sue  for,  §  752. 
Partition,  §§  752-801.     See  Partition. 
Waste,  liability  for,  §  732. 

COUNSEL.     See  Attorney. 

COUNTERCLAIM. 

Answer   may   contain    as   many   counter- 
claims as  defendant  may  have,  §  441. 
Answer  to  contain,  §  437. 
Assignment,  when  does  not  bar,  §  440. 


COUNTERCLAIM.      (Continued.) 

Basis  for,  what  is,  §  438. 

Controverted,  allegations  are  deemed, 
when,  §  462. 

Cross-complaint.     See  Cross-complaint. 

Cross-demand,  when  deemed  compen- 
sated, §  440. 

Cross-demand.     See  Cross-demand. 

Death,  when  does  not  bar,  §  440. 

Deemed  denied,  §  462. 

Demurrer  to,  and  grounds  of,  §§  443,  444. 

Demurrer  to,  time  to  file,  §  443. 

Dismissal  in  case  of,  §  581. 

Judgment  when  affirmative  relief  de- 
manded, §  666. 

Judgment  when  counterclaim  exceeds 
plaintiff's  demand,  §  666. 

Jury  must  find  amount  of  recovery  when, 
§626. 

Justice's  court,  in,  §§  855,  856,  886.  See 
Justices'  Courts,  VI. 

Misjoinder,  demurrer  for,  §  444. 

Must  arise  out  of  what  transaction  or 
obligation,  §  438. 

Omission  to  set  up,  effect  of,  §§  439,  856. 

Separately  stated,  must  be,  §  441. 

Transaction  which  must  arise  out  of, 
§438. 

Verdict  on  counterclaim  for  money  to 
find  amount,  §  626. 

Waiver  by  failure  to  set  up,  §§  439,  856. 

What  constitutes,  §  438. 

When  to  be  set  up,  §  438. 

COUNTY. 

Actions  affecting,  transfer  of,  to  another, 
county,  §  394. 

Actions  affecting,  where  brought,  §  394. 

Bond,  need  not  give,  in  action,  §  1058. 

Change  in  boundary,  succession  of  jus- 
tice, §  107. 

Complaint  must  show  where  filed,  §  426. 

Costs  against,  how  paid,  §  1039. 

Enjoining  illegal  expenditures  or  waste 
by  officers,  §  526a. 

Includes  city  and  county,  §  17. 

Injunction  by,  undertaking  not  required, 
§  529. 

Limitation  in  actions  on  claims  rejected 
by  supervisors,  §  342. 

New,  justice  has  authority  of  prede- 
cessor, §  916. 

Officers  of,  exempt  from  jury  duty,  §  200. 

Summons,  service  of  on,  §  411. 

Summons  must  state  where  complaint 
filed,  §  407. 

Venue,  action  brought  in  wrong  county, 
change  of,  §  396. 

Venue,  action  brought  in  wrong  county, 
trial  of,  §  396. 

Venue  of  actions  by  or  against,  §  394. 

Venue  of  action  by  or  against  city  and 
county,  §  394. 

Verification  of  pleadings  by,  §  446. 

Verification  not  necessary  where  action 
is  by,  §  446. 

COUNTY  CLERK. 

Authenticated  copy  of  documents,  seal 
necessary  to,  §  153. 


INDEX.      VOL.    I.       §§  1-1059. 


xxvu 


COUNTY  CIiERK.     (Continued.) 

Certified  list  of  jurors,  to  be  placed  with, 
§  2U8. 

Deposit  in  court,  duties  of.  See  Deposit 
iu  Court. 

Disqualification  to  practice  law,  §  171. 

Duty  of,  as  to  list  of  jurors,  §  209. 

Election  of,  whore  prescribed,  §  202. 

Fees  of,  prepayment  of  on  appeal  to  su- 
perior court,  §  9S1. 

Investment  in  name  of,  of  proceeds  in 
partition  sale,  §  789. 

Investment  in  name  of,  of  proceeds  of 
partition  sale,  duty  of,  §  791. 

Law  partner,  cannot  have,  §  171. 

Service  may  be  made  on,  when,  §  1015. 
See  Clerk. 

COUNTY  COURT. 

Transfer  of  books,  records,  and  actions 
to  superior  court,  §  79. 

COUNTY  TREASUEEE.     See  Treasury. 
Deposit  in  court  must  be  paid  to,  §  573. 

COURSE  OF  PROCEEDING. 

When  code  does  not  specifically  provide 
for,  §187. 

COURT  COMMISSIONER. 

Appoiutmeut,  §  2.58. 

Compensation  of,  §§  259,  729. 

Death  of,  elisor  to  execute  deed,  §  726. 

Feesof,  §§259,  729. 

Findings,  exceptions  to,  §  645. 

Foreclosure,  appointment  of,  on,  §  726. 

Law  partner,  cannot  have,  §  172. 

May  not  grant  injunction,  §  259. 

Kot  to  have  partner  practicing  law,  §  172. 

Number  of  commissioners,  §  258. 

Oath  of,  on  foreclosure,  §  729. 

Powers  of,  §  259. 

Powers  of,  limitation  on,  §  259. 

Qualifications,  §  258. 

Eeference  may  be  made  to.     See  Eefer- 

ence. 
Reference  to,  report  to  be  made  within 

twenty  days,  §  643. 
Report,  findings  of  fact,  and  conclusions 

of  law,  separately  stated,  §  643. 
Report  of  conclusions,  §  259. 
Report    of    conclusions,    exceptions    to, 

§  259. 
Review  of  finding,  §§  259,  645. 
Sale,  report  of,  §  729. 
Sale  under  foreclosure,  fees  on,  §  729. 
Seal  of,  §  259.       , 

Seal,  authentication  of  act  with,  §  259. 
Undertaking  of,  on  foreclosure,  §  729. 

COURT    REPORTER.     See    Phonographic 
Keporters. 

COURTS. 

Abbreviations,  use  of,  §  186. 

Absence  of  judge,  proceedings  in  case  of, 

§139. 
Adjournment  for  absence  of  judge,  §  139. 
Adjournment  for  holiday's,  §  135. 
Adjournment  of,  while  jury  out,  §  617. 
Always   open   for   what   purposes,   §§  73, 

134,  617. 


COURTS.     (Continued.) 

Breach   of   promise  of   marriage,  private 

sittings    in    actions    for,  §  125. 
Calendar,  §  593.     See    Calendar. 
Chambers,   powers  at.     See   Chambers. 
Change  in  jjlaee  of  holding,  §§  142-144. 
Change  in  place  of  holding,  parties  must 

appear,  §  143. 
Change  in  place  of  holding,  wlien  judge 

may  order,  §  142. 
Classification  of,  §  33. 
Contempt    in    justice's    court.     See    .lus- 

tices'  Courts,  XVII. 
Criminal  conversation,  private  sitting  in 

action   for,  §  125. 
Days  on  which,  may  be  held,  §  133. 
Days  on  which,  may  not  be  open,  §  134. 
Decision  of,  facts  found  and  conclusions 

of    law    must    be    stated    separately, 

§  633. 
Decision  of   on   question   of   fact,   filing, 

§632. 
Decision  of,  on  question  of  fact  must  bo 

written,  §  632. 
Decision,  time  for  giving,  §  632. 
Deposit  in  court.     See  Deposit  in  Court. 
Divorce,   private   sitting   in    actions   for, 

§125. 
Duties    and    powers    incident    to,  §§  128- 

130. 
English,  proceedings  to  be  in,  §  185. 
Enumeration  of  courts  of  justice,  §  33. 
Extra   sessions   of  superior   courts.     See 

Superior   Courts. 
Figures,   use   of,  §  186. 
Holidays,    courts    not    open,    except    for 

what  purposes,  §  134. 
Holidays,  holding  court  on  day  following, 

§135. 
Impeachment,  of  judges.     See  Impeach- 
ment. 
Injunction  to  stay  proceedings  in,  whea 

granted,  and  when  not,  §  526. 
Issues  triable  by,  §§  591,  592. 
Judges.     See  Judges. 
Judicial  days,  §§  133-135. 
Judicial  remedies  defined  and  classified, 

§§20,  21. 
Jurisdiction,  means  to  carry  into  effect, 

§  187. 
Jurisdiction    of.     See   .Jurisdiction. 
Justice's.     See  .Justices'   Courts. 
Motions  refused  for  informality,  second 

application,  §  182. 
Non-judicial  days,  §  134. 
Non-judicial      days,     appointments     on, 

§  T35. 
Oaths,  power  to  administer,  §  12S. 
Officers  of,  powers  and  duties  prescribed 

bv    Political    Code    and    Penal    Code, 

§262. 
Order,    refusal    of,    second    application, 

§  182. 
Orders.     See  Orders. 
Place   of  holding,  provisions   respecting, 

§§  142-144. 
Police    court,   provided   for   in    Political 

Code,  §  121. 


XXVlll 


INDEX.      VOL.    I.       §§  1-1059. 


COURTS.     (Continued.) 

Power  of,  to  which  an  action  is  trans- 
ferred, §  399. 

Power  to  amend  and  control  process, 
§  128. 

Power  to  compel  attendance  of  wit- 
nesses, §  128. 

Power  to  compel  obedience  to  judg- 
ments, orders,  process,  §  128. 

Power  to  control  ministerial  officers, 
§128. 

Power  to  enforce   order,  §  128. 

Powder  to  provide  means  to  carry  juris- 
diction into  effect,  §  187. 

Powers  and  duties  incident  to,  §§  128- 
130. 

Probate.     See  Probate  Court. 

Process,  power  to  amend  and  control, 
§  128. 

Process.     See    Process. 

Publicity    of    proceedings,  §§  124,    125. 

Record,   courts   of,  what  are,  §  34. 

Records.     See    Records. 

Reporter,  §§  268-274.  See  Phonographic 
Reporter. 

Rooms,  directing  sheriff  to  provide  suit- 
able, §  144. 

Rooms,  suitable,  provided  by  sheriff,  ex- 
pense, how  payable,  §  144. 

Rules,  power  of  court  of  record  to  make, 
§129. 

Rules,  take  effect  when,  §  130. 

Rules  of.     See  Courts;  Rules. 

Seal  of,  failure  of  supervisors  to  pro- 
vide,  order  on  sheriff,  §  151. 

Seal   of,  supervisors   to   provide,  §  151. 

Seal  of,  supervisors  failure  to  provide, 
order  on  sheriff,  §  151. 

Seals,  what  courts  shall  have,  §  147. 

Seals  of.     See  Seal. 

Seduction,  private  sittings  in  actions  for, 
§125. 

Sessions  of,  §  73.  See  Superior  Court; 
Supreme  Court. 

Sittings,  public,  §  124. 

Sittings,  private,  may  be  held  in  what 
cases,  §  125. 

Subsequent  applications  for  orders  re- 
fused,   contempt,  §  182. 

Subsequent  applications  for  orders  re- 
fused, when  prohibited,  §  182. 

Superior.     See  Superior  Court. 

Supreme.     See  Supreme  Court. 

Vacancv,  proceedings  not  affected  by, 
§  184." 

What  are  the  courts   of  justice,  §  33. 


COURTS  OF  IMPEACHMENT. 

peachment. 


See   Im- 


CREDITORS,     See  Debtors. 
Defrauding,   arrest,  §  479. 
Receiver,   appointment  of,  in   action   by, 

§  564. 
Redemption,  right   of,  §§701,  702. 

CRIME. 

Conviction  of,  as  ground  for  removal  of 
attorney,  §  287. 


CRIMINAL  ACTION.     See  Actions. 

Holidays,  court  may  exercise  powers  of 

magistrate    on,  §  134. 
Limitation     of     action     on     undertaking 

given  in, §  340. 
Penal  Code  provides  for  §  31. 

CRIMINAL  CONVERSATION. 

Civil  or  criminal,  actions  are,  §  24. 
Sitting  of  court,  private,  §  125. 

CRIMINAL  LAW. 

Holiday,  court  may  act  as  magistrate  on, 
§134. 

Imprisonment,  effect  on  statute  of  limi- 
tations, §  352. 

Juvenile    court,  §  131. 

.Jury,  manner  of  impaneling,  §  251. 

Penal  Code  provides  for  prosecution  of 
criminal  action,  §  31. 

Probationary  treatment  of  juvenile  of- 
fenders, §  131. 

CROSS-COMPLAINT. 

Answer  to,  §§  422,  442. 
Counterclaim.     See  Counterclaim. 
Cross-demand.     See  Cross-demand. 
Demurrer  to,  §§  422,  442. 
Demurrer  to   answer  to,  §§  422. 
Necessary  parties,  to  bring  in,  §  389. 
One  of  defendants'  pleadings,  §  422. 
Service   of,  §  442. 
Summons  must  be  issued  and  served  ou 

parties  who  have  not  appeared,  §  442. 
"When  proper,  §  442. 

CROSS-DEMAND.  See  Counterclaim: 
Cross-complaint. 

Assignment  does  not  bar,  when,  §  440. 

Death   of  party  does  not  affect,  §  440. 

Omission   to   set   up.   fatal,  §  439. 

When  cross-demands  deemed  compen- 
sated, §  440. 

CURRENCY. 

Recovering  specific,  §  667. 

CUSTODY. 

Abstract  of  title  in  partition,  custody  of, 
§  799. 

CUSTOM. 

Local,  governs  actions  concerning  mining 

claims,  §  748. 
Mining  customs,   usages,   or   regulations, 

admissibility  of,  §  748. 


D 

DAMAGES. 

Amount,  stating  in  complaint,  §  426. 
Appeal,  damages  for  delay,  §§  957,  980. 
Complaint,  stating  amount  in,  §  426. 
Costs  in  actions  for,  §§  1022,  1025. 
Death  of  human  being,  for,  §  377. 
Default,  on  judgment  by,  §  585. 
Excessive,  as  ground  for  new  trial,  §  657. 
Execution,  recovery  by  purchaser  at  tor 

injury  to   property,  §  746. 
Exemplary,    unmarried    female    may    re-. 

cover,    for   seduction,  §  374. 


INDEX.      vol..    1.      §§  1-1059. 


XXIZ 


DAMAGES.     (Continued.) 

Forcible  or  unlawful   entry   or  detainer, 

treble  damages  in,  §  T.S"). 
Improvement,  setting  off  value  of,  §  741. 
Inj^inction  respecting  waters,  vacated  or 

modified  when  bond  for  damages  given, 

§  532. 
Issues   of  fact,   how   tried   in   action   for 

damages,  §  592. 
Joinder  of   claims   for,  §  427. 
Jury,  when  to  be  assessed  by,  on  failure 

to  answer,  §  585. 
Libel,  §  461. 

Must  be  claimed  in  complaint,  §  426. 
Neglect   causing   death,   damages,  §  377. 
Neglect,   damages   for   death   caused   by, 

limitation    of    action,  §  339. 
Nuisance,  for,  §  731. 
Eealty,    for    injury    to,    after    execution 

sale    and    before    delivery,    purchaser 

may  recover,  §  746. 
Replevin,  in,  for  detention,  §  667. 
Seduction,   for,  8  374. 
Sheriff,  liability  of,  §  682. 
Slander,  §  461. 
Treble,  for  waste,  trespass,  etc.,  §§  732- 

735. 
Treble,  in  forcible  entry,  §  735. 
Trees    or    timber,    cutting    or    carrying 

away,  §§  733-734. 
Trespass,  treble,  in,  §§733,   734. 
Usurpation  of  office,  for,  §  807. 
Waste,  treble,  for,  §  732. 
Wrongful  death,  for,  §  377. 

DAYS. 

Holidays.     See  Holidays. 
Judicial,  §§  133-135. 

DEATH.     See  Estates  of  Decedents;  Guar- 
dian  and   Ward. 

Abatement  of  action  by,  §  385. 

Action  for,  who  may  bring,  §§  376,  377. 
See  Wrongful  Death. 

Adverse   possession,   effect   of   death   on 
§327. 

Attorney,  of,  notice  to  appoint  successor 
§286. 

Bail  exonerated  by  death  of  defendant 
§  491. 

Child,  of,  who  may  sue  for,  §  376. 

Continuance      of      action      against     sue 
cessor  or  representative,  §  385. 

Counterclaim  not  barred  by,  when,  §  440 

Court      commissioner,      apy)ointment      of 
elisor  to  execute  deed,  §  726. 

Damages   for,  §  377. 

Decision    or    verdict,    death    after,   and 
before  judgment,  §  669. 

Elisor,   appointment   to   execute   deed   on 
death  of  commissioner,  §  726. 

Execution  after,  §  686. 

Heirs  may  sue  for,  §  377. 

Infant,  who  may  sue  for,  and  who  liable, 
§376. 

Judge,   of,   settlement   of   bill   of   excep- 
tions or  statement  in  case  of,  §  653. 

Limitation,  effect  of,  §§  327,  353,  355. 


DEATH.      (Continued.) 

Limitation,    extension    of    time    to    sue, 

§§  353,  355. 
Limitation  of  action  for,  §  340. 
Negligence,  caused  by,  who  may  sue  for, 

§  377. 
Negligence,  child,  death  caused   by,  who 

may  sue,  §  376. 
Partition,     death     pending     proceedings, 

effect    of    and    proceedings    on,  §§  763, 

766. 
Party  entitled  to  appeal,  of,  right  of  at- 
torney   or    representative    to    appeal, 

§941b. 
Party,  of,  effect  on  action,  §  385. 
Place   of    trial   in    action   for    wrongful 

death, §  395. 
Possession,    right    of,    not    affected    by, 

§327. 
Representative  may  sue  for,  §  377. 
Set-off  not  affected,  §  440. 
Survival  of  actions,  §  385. 
Verdict,  death  after  and  before  decision, 

§  669. 
Who  may  sue  for,  §§  376,  377. 

DEBTOR.     See  Creditors;  Debts. 

Action  to  compel  satisfaction  of  debt  for 
which  one  bound  as  surety,  §  1050. 

Appointment  of  receiver  in  action  by 
creditor,  §  564. 

Arrest.     See  Arrest  and  Bail. 

Attachment.     See  Attachments. 

Execution.     See  Execution. 

Supplementary  proceedings.  See  Supple- 
mentary Proceedings. 

Relationship  of,  disqualifies  jury,  §  602. 

DEBTS.     See     Attachments;      Execution; 
Supplementary  Proceedings. 
Attachment  of,  §§  541,  542. 
Compromise.     See  Compromise. 
Contribution   among  debtors,  §  709. 
Creditors.     See  Creditors. 
Debtors.     See  Debtor. 
Executions,  seizure  on,  §  688. 
Receiver  may  collect,  §  568. 

DECEDENTS'  ESTATES.     See  Estates  of 
Decedents. 

DECISION. 

Appeals,  on.  See  Appeals,  IX;  Supreme 
Court. 

Death  after  decision  and  before  judg- 
ment, §  669. 

Deemed  excepted  to,  §  647. 

Demurrer,  on,  notice  of,  §  476. 

Exceptions  to,  how  presented,  settled  or 
allowed,  §  650. 

Exceptions  to,  when  to  be  taken,  §  646. 

Facts  and  conclusions  separately  stated, 
§  633. 

.Judgment.     See  .Judgment. 

Meaning  of,  §  1033. 

Must  be  filed  within  thirty  days,  §  632. 

Must  be  in  writing,  §§  49, "632.' 

On  motion  for  new  trial,  §  660. 

Referees,  findings  of.     See  Reference. 

When  subject  to  review  on  appeal,  §  956. 


XXX 


INDEX.      VOL.    I.       §§  1-1059. 


DECISION  OF  REFEREE. 

Findings  of  fact  and  law  must  be  sepa- 
rately stated, §  643. 

DECLARATION.     See  Evidence. 
Oath  includes,  §  17. 

DECLARATION  OF  INTENTION. 

Attorney,  alien,  §  275. 

DEEDS. 

Mortgage  not  deemed,  §  744. 
Sheriff's,  §  703.     See   Sheriff's   Deed. 

DEFAULT. 

Account,  how  taken  or  examined,  when 

necessary, §  5S5. 
Actions  on  contracts  for  money  or  dam- 
ages, clerk  to  enter,  §  585. 
Against  non-resident,  §  585. 

Amendments,  default  for  failure  to  an- 
swer, §  432. 

Amount  of  judgment  in   action   on   con- 
tract for  money  or  damages,  §  585. 

Bill  of  exceptions  need  not  be  served  on 
party  defaulting,  §  650. 

Costs  on,  §  585. 

Damages,  assessment  of,  on,  §  585. 

Demand  alleged,  proof  of,  §  585. 

Entry  of,  clerk  to  enter  when,  §  585. 

Entry   of  judgment   on,   clerk   to     enter, 
when,  §  585. 

Examination  of  plaintiff  or  agent,  §  585. 

For  failure  to  answer,  §  585. 

For    failure    to    answer    amended   com- 
plaint, §§  432, 872. 

Includes  costs,  §  585. 

Judgment  by,  cannot  exceed  amount  de- 
manded, §  580. 

Judgment    by,    relief   from,    in    justice's 
court,  §  859. 

Judgment  by,  relief  that  may  be  granted 
in  case  of, §  585. 

Judgment  roll  in  case  of,  §  670. 

Justice's  court,  in.     See  Justices'  Courts, 
XX. 

Non-resident,  default  judgment  against, 
proceedings  on, §  585. 

Plaintiff    to    apply   to     court   for   relief 
when,  §  585. 

Procedure  in  case  of,  §  585. 

Procedure  where  service  by  publication, 
§  585. 

Proof,  court  hears,  when,  §  585. 

Quiet  title,  costs  not  allowed  where  de- 
fendant does  not  answer,  §  739. 

Quieting  title  against  unknown  owners, 
default  not  entered,  §  751. 

Reference,  when  may  be  ordered,  §  585. 

Relief  cannot  exceed  amount  demanded, 
§580. 

Relief  from  judgment  by,  §  473. 

Summons,     publication     of,     proceedings 
and  judgment  in  case  of,  §  585. 

What  papers  need  not  be  served  on  party 
defaulting,  §  650. 

What   relief   may   be   awarded   plaintiff, 
§580. 

When  entered,  §  585. 


DEFECT. 

In  account,  further  account  may  be  or- 
dered, §  454. 
In  pleadings,  when  disregarded,  §  475. 
Of  parties,  ground  for  demurrer,  §  430. 

DEFENDANT.     See  Parties. 
Pleadings  of,  §  422. 

Summons    where    defendants    reside    in 
different  counties,  §  406. 

DEFENSES.     See  Answer. 

Assignment  not  to  prejudice,  §  368. 

Must  be  separately  stated,  §  441. 

Order  of,  at  trial,  §  607. 

Particular  actions.     See  particular  title. 

Several,  how  stated,  §  441. 

Several  may  be  stated  in  answer,  §  441. 

Written  instrument,  founded  on,  §  448. 

DEFICIENCY  JUDGMENT. 

On   foreclosure   of   mortgage,  §  726.     See 

Foreclosure  of  Mortgage. 
Undertaking  to  stay,  §  945. 

DEFINITION.     See  Words  and  Phrases. 
Action,  §  22. 
Affinity,  §  17. 
Appellant,  §  938. 
Civil  action,  §  30. 

Complaint  in  justice's  court,  §  853. 
Decision  of  court  or  referee,  §  1033. 
Defendant,  §  308. 
Depose,  §  17 
Docket,  §  672. 
Exception,  §  646. 
General  verdict,  §  624. 
Grand  jury,  §  192. 
Injunction,  §  525. 
Injury  to  person,  §  29. 
Injury  to  property,  §  28. 
Issue,  §§  588,  878. 
.Judgment,  §  577. 
Judicial  remedies,  §  20. 
Jury,  §  190. 

.Jury  of  inquest,  §  195. 
Material  allegations,  §  463. 
Month,  §  17. 
Motion,  §  1003. 
New  trial,  §  656. 
Nuisance,  §  731. 
Obligation,  §  26. 
Order,  §  1003. 
Person,  §  17. 
Personal  property,  §  17. 
Plaintiff,  §  308. 
Pleadings,  §  420. 
Process,  §  17. 
Property,  §  17. 
Real  property,  §  17. 
Redemptioner,  §  701. 
Respondent,  §  938. 
Seal,  §  14. 
Section,  §  134. 
Special  proceedings,  §  23. 
Special  verdict,  §  624. 
State.  §  17. 
Testifv,  §  ]7. 
Trial  jury,  §  193. 
Trustee,  §  369. 


INDEX.      VOL.    I.       §§  1-1059. 


ZXXl 


DEFINITION.      (Continued.) 
United  States,  §  17. 
Verdict,  §  624. 
Will,  §  17. 
Writ,  §  17. 

DELIVERY.     See  Claim  and  Delivery. 

DEMAND. 

For  bill  of  particulars,  §  454. 
Inspection    of    written    instrument,    de- 
mand for,  §  449. 
Relief,  demand  of,  in  complaint,  §  426. 

DEMURRER. 

Accusation  in  proceeding  to  remove  at- 
torney, to,  §  295. 

Answer,  allowing,  where  demurrer  over- 
ruled, §  472. 

Amended  pleading,  to,  §  472. 

Answer  and,  at  same  time,  §  4.31. 

Answer,  filing  of,  not  a  waiver  of  de- 
murrer, §  472. 

Answer,  to,  §§  422,  443. 

Answer,  to,  grounds  for,  §  443. 

Answer,  to,  overruling,  facts  of  answer 
deemed  denied,  §  472. 

Answer,  to  part  of,  §  443. 

Answer  to  part  and  demurrer  to  part, 
§441. 

Answer,  to,  time  for,  §  432. 

Appearance,  demurrer  is,  §  1014. 

As  a  pleading,  §  422. 

Complaint,  may  be  taken  to  whole  or 
any  part  of,  §  431. 

Complaint,  to,  must  specify  grounds, 
§431. 

Complaint,  to,  time  for,  §  430. 

Counterclaim,  to,  §§  443,  444. 

Cross-complaint,  demurrer  to  answer  to, 
§422. 

Cross-complaint,  to,  §§  422,  442. 

Grounds  for,  §§  430,  431. 

Grounds  of,  to  be  specified,  §  431. 

Intervention,  to,  §  387. 

Issues  raised  by, §  589. 

Judgment  on,  proceedings  after,  §  636. 

Judgment  roll,  copy  of  order  on,  is  part 
of,  §  670. 

Justice's  court,  in,  §§  854,  856-858,  860. 
See  Justices'  Courts,  V. 

Objection  to  complaint  waived  when, 
§434. 

Order  sustaining  or  overruling,  deemed 
excepted  to, §  647. 

Overruled,  allowing  answer,  §  472. 

Overruling  demurrer  to  answer,  facts  al- 
leged deemed  denied,  §  472. 

Overruling,  imposition  of  terms  in  allow- 
ing answer,  §  472. 

Overruling,  time  to  answer  runs  from 
notice,  §  476. 

Sustaining,  time  to  amend  runs  from  no- 
tice, §  476. 

Time  for,  extending,  §§  473,  1054. 

Time  within  which  may  be  taken  to  an- 
swer, §  443. 

Time  within  which  must  be  taken  to 
complaint,  §  430. 


DEMURRER.      (Continued.) 

To  what  pleadings  may  be  taken,  §  422. 
Waived,   not,   by   filing  answer   at   same 

time,  §  472. 
Waiver,  by  failure  to  demur,  §  434. 
Waiver  of  summons  by,  §  406. 
When  defendant  may  demur,  §  430. 
Whole    or    part    of    complaint,    may    be 

taken  to,  §  431. 

DENIAL.     See  Answer, 

DENTISTS. 

Ivveiiiption  of  property  of,  §  690. 

DEPOSE. 

Includes  what,  §  17. 

DEPOSIT.     See  Deposit  in  Court. 
Appeal  to  superior  court,  on,  §  978. 
In   lieu   of   bail,  §§  497-500.     See   Arrest 

and  Bail. 
In  lieu  of  undertaking,  on  appeal,  §§  940, 

941,948. 
Instead     of     undertaking,     in     justice's 

court,  §  926. 

DEPOSIT  IN  COURT. 

Appointment  of  clerk  to  receive,  how 
long  continues,  and  revocation  of, 
§573. 

Appointment  of  clerk  to  receive,  to  be 
filed  with  treasurer,  §  573. 

By  one  interpleading,  §  386. 

Clerk  depositing  money  with  treasurer 
not  discharged  until  certificate  of  au- 
ditor that  duplicate  receipt  filed,  §  188. 

Clerk  to  deposit  money  with  treasurer 
and  file  duplicate  receipt  with  auditor, 
§  188. 

Clerk  of  court,  money  dei)Osited  with 
treasurer,  by,  how  withdrawn,  §  188. 

Conditions  of,  §  572. 

Defendant  may  make,  and  ask  for  order 
of  substitution  when,  §  .386. 

Moneys  to  be  delivered  to  clerk  or  depu- 
ties, §  573. 

Must  be  paid  to  clerk  and  deposited  with 
county  treasurer,  §  573. 

Of  proceeds  of  jiartition,  §  773. 

Of  surplus  after  foreclosure,  §  727. 

Of  surplus  on  sale  of  boat,  §  825. 

On  appeal,  §§  926,  940,  941,  948. 

Order  for,  how  enforced,  §  574. 

Pavment  to  county  treasurer,  his  liabil- 
ity therefor,  S  573. 

Payment  to  county  treasurer,  how  kept 
by  him,  §  573. 

Sheriff  required  to  take  money  when, 
§  574. 

Sheriff  to  deposit  bail  money  in  court, 
§  498. 

Treasurer,  duties  of,  §  573. 

Treasurer  liable  for,  on  oflBcial  bond, 
§  572. 

Trustee,  by,  §  572. 

When  court  may  order,  §  572. 

DEPOSITION. 

Continuance,  deposition  of  witness  on, 
as  evidence,  §  596. 


xxxu 


INDEX.      VOL.    I,       §§  1-1059. 


DKPOSITION.     (Continued.) 

Continuance,  deposition  of  witnesses 
may  be  taken  on,  §  596. 

Court  commissioner  may  take,  §  259. 

Depose,  defined,  §  ]7. 

Jurors,  on  deliberation,  may  not  take 
with  them,  §  612. 

Justice  of  peace  may  take,  §  179. 

Justice  of  supreme  court  may  take,  §  179. 

Justice's  court,  postponement  of  trial, 
testimony  may  be  taken  on,  §  876. 

Police  judge  may  take,  §  179. 

Postponement  of  trial,  deposition  of  wit- 
ness on,  admissible,  §  596. 

Postponement  of  trial,  testimony  may 
be  taken  on,  §§  596,876. 

Eeference  to  take,  in  proceeding  to  re- 
move attorney,  §  298. 

Superior  judge  may  take,  §  179. 

Supreme  judge  may  take,  §  179. 

Witness'  testimony  may  be  taken  on 
postponement  of  trial,  §§  596,  876. 

DEPUTY  CLERK.     See  Clerk. 

DEPUTY  SHERIFF,     See  Sheriff. 

DESCENT. 

Eight  or  possession  not  affected  by  de- 
scent cast,  §  327. 

DESCRIPTION. 

Boundaries.     See   Boundary. 
Real  property,  in  pleading,  §  455. 
Survey,  description  of  property  in  order 
for,'§  743. 

DESTROYED  RECORDS  AND  DOCU- 
MENTS. See  Burnt  or  Destroyed 
Records  or  Documents. 

DETINUE. 

Limitation  of  action   of,  §  338. 

DIRECTOR. 

Limitation  of  action  against,  §  359. 

DISABILITY. 

Action  not  abated  by,  §  385. 

Infant.     See  Infant. 

Insane  persons,  of.     See  Insane  Persons. 

Judgment  in  suit  to  quiet  title  conclu- 
sive notwithstanding,  §  750. 

Justice's,  proceedings  thereon,  §  922. 

Justice's  reassignment  and  transfer  of 
actioi',  §  90. 

Married  women,  of.  See  Married 
Women. 

Presiding  justice's,  substitute,  §  85. 

Superior  judge's,  holding  court  by  an- 
other, §160. 

Statute  of  limitations,  effect  on,  §  328. 
See  Limitation  of  Actions. 

DISBURSEMENTS.     See  Costs. 

DISCLAIMER. 

In  action  to  quiet  title,  costs  not  al- 
lowed, §  739. 

DISCONTINUANCE. 

Enteiing,  §  581. 


DISCRETION  OF  COURT. 

Costs  of  appeal,  when  in,  §  1027. 

Costs   on   postponement  of   trial   are   in, 

§  1029. 
Expenses  of  referees  in  partition,  §§  768, 

796. 
On  allowance  of  costs,  §  1025. 
Order  of  trial,  §  607. 
To  order  reference  in  accusation  against 

attorney,  §  298. 

DISMISSAL.  See  Appeals,  VII;  Judg- 
ments. 

Consent  of  party,  dismissal  on,  §  581. 

Court  may  grant,  on  its  own  motion, 
when,  §§  581a,  583. 

Court  may  grant,  when,  §§  581,  581a. 

Either  party  may  take,  when,  §  594. 

How  made,  §  581. 

In  justice's  courts,  §  890.  See  Justices' 
Courts,  XL 

Notice  of  motion,  §  583. 

Of  action,  grounds  for,  §§  581,  581a,  583. 

On  motion  of  party,  when  granted, 
§§  581,  581a,  583. 

Plaintiff,  when  may  dismiss,  §  581. 

Provisional  remedy,  undertaking,  deliv- 
ery to  defendant,  and  action  on,  §  581. 

Security  for  costs,  for  failure  of  foreign 
corporation  to  give, §  1037. 

Summons,  failure  to  serve  and  return, 
§581a. 

Summons,  failure  to  serve  and  return, 
where  defendant  absent  or  conceals 
himself,  §  581a. 

To  be  entered  in  clerk's  register  when, 
§581. 

To  be  entered  on  minutes  of  court  when, 
§581. 

Transfer  of  action,  dismissal  after  where 
fees  not  paid, §  581b. 

Transfer  of  action,  filing  transferred 
pleadings  anew  without  fee  after  dis- 
missal, §  581b. 

DISQUALIFICATION.  See  Affinity;  Con- 
sanguinity. 

.Turors,  of,  §  602. 

Justices  and  judges,  of,  §§  170,  833. 

Justices  and  judge,  change  of  place  of 
trial.     See  Place  of  Trial. 

Justices  or  judge,  waiver  of,  §  170. 

Receiver,  of.     See  Receiver. 

Referees,  of,  §  641. 


DISTRIBUTION. 

dents. 


See    Estates    of    Dece- 


DISTRICT  ATTORNEY. 

Nuisance,  city  attorney  and  district  at- 
torney have  concurrent  right  to  abate, 
§731. 

Nuisance,  may  sue  to  abate,  §  731. 

Nuisance,  to  abate,  when  directed  by 
supervisors,  §  731. 

DISTRICT  COURT. 

Transfer  of  books,  records,  and  actions 
to  superior  court,  §  79. 


INDEX.       VOL.    I.       §§  1-1050. 


XXXIll 


DISTEICT  COURTS  OF  APPEAL. 

Aj)plic;iiit   for   admission   to   i)raetice,   to 

examine,  §  276. 
Attorneys    admitted    to    supreme    court 

may  practice  in,  §  277. 
Examination  of  attorneys  by,  §  276. 
Who  entitled  to  practice  law  in,  §  277. 

DISTRICT  OF  COLUMBIA. 

Included  in  terms  "state"  and  "United 
States,"  §  17. 

DIVORCE. 

Adultery,  pleadings  to  be  served  on  co- 
respondent, §  1019. 

Adultery,  co-respondent  mav  appear  and 
be  heard, §  1019. 

Adultery,  notice  how  given  co-respond- 
ent who  cannot  be  found,  §  1019. 

Complaint,  facts  required  to  be  stated, 
§  426a. 

Interlocutory  decree  in,  appealable,  §  903. 

Interlocutory  decree  in,  time  to  appeal 
from,  §  940. 

.Jurisdiction   of  proceedings  for,  §  7G. 

Sitting  of  court,  private,  §  125. 

DOCKET. 

Entries  made  how,  §  672. 

Execution  may  issue  on,  of  predecessor, 

§916. 
How  kept,  §  672. 

Inspection,  open  for  public,  §  67.3. 
Is  what,  §  672. 

Judgment,  how  and  when  entered,  §  671. 
Justices    of   peace,    of,  §§  911-918.     See 

Justices'  Courts,  X. 
Redemptioner   must  produce,  §  705. 
Satisfaction,  entering,  §  675. 
Transcript    of,    when    filed    in    another 

county,  judgment  becomes  lien  there, 

§674. 
What  to  contain,  §  672.  » 

DOCTORS.     See  Physicians. 

DOCUMENT. 

Burnt.  See  Burnt  or  Destroyed  Records 
or  Documents. 

Production  and  inspection  of.  See  In- 
spection of  Writings. 

DOMICILE.     See  Residence. 

DRAINAGE  DISTRICT. 

Disqualification  of  judge  or  justice  iu 
actions  in  relation  to  and  proceedings 
on,  §  170. 

DRUGGIST. 

Exempt  from  jury  duty,  §  200. 

E 

EARNINGS. 

Exemption  of,  §  690. 

EJECTMENT. 

Alienation  pending  suit  does  not  preju- 
dice, §  747. 

Costs  of  course,  when  allowed,  §§  1022, 
1024. 


EJECTMENT.     (Continued.) 

Description    of    [)roi)orty    in    complaint, 

§455. 
Improvements  as  set-oiT,  §  741. 
•Joinder   of  causes  of   action   with,  §  427. 
Measurement  of  shafts,  tunnels,  etc.,  on 

land,  §  742. 
Mining  claims,  evidence  of   custom   and 

usage,  §  748. 
Parties,  §§  380,  381. 
Parties   defendant,   unknown,   claims   of,- 

how  determined,  §§  749-751. 
Parties   defendant,   who   may   be   joined 

as,  §379. 
Summons  to  unknown  defendants,  §§  750, 

751. 
Survey  of  land  in  dispute,  liability   for 

injury  done  by,  §  743. 
Survev  of  land,  order  for,  entry  under, 

§§  742,  743. 
Survey  of  land,  order  for,  what  to  con- 
tain and  how  served,  §  743. 
Survey    of    land,    order    may    issue    for, 
•      §  742. 
Termination   of   plaintiff's  title   pending 

suit,  effect  of,  §  740. 
Unknown    claimants,    determining    title 

of,  §  751. 
Unknown  claimants,  summons  to,  §§  750, 

751. 
Verdict   in,  §  625. 
Writ  of  possession,  §  380. 
Writ    of    possession    or    assistance.     See 

Assistance. 

ELECTIONS. 

Attorney-genera],  §  262. 

Clerk   of  supreme   court,  §  262. 

Contest,  appeal,  preference  of  hearing  in 

supreme  court,  §  57. 
Coroners,  §  262. 
County  clerk,  §  262. 
Holiday,  day  on  which  election   is  held 

is,  §  10. 
Justices  of  peace  in  township,  time   of, 

§  103. 
Preference    given    to    contested   election 

cases  on  appeal,  §  57. 
Public  officers,  of,  prescribed  by  Political 

Code,  §  262. 
Reporter  of  decisions  of  supreme  court, 

§262. 
Sheriffs,  §  262. 

Superior  judges,  election  of  §  65. 
Supreme  judges,  election  of  §  40. 

ELISOR. 

Appointment     of,   in    foreclosure    suits. 

See  Foreclosure. 
Appointment    of,   to    execute     deed     on 

death  of  court  commissioner,  §  726. 
Compensation  of,  for  summoning  jurors, 

§228. 
Summoning    jurors   to    complete     panel, 

§§  226.  227. 
Summoning  jury  forthwith,  §  226. 

To  sell  encumbered  property,  §  726. 


XXXIV 


IXDEX.       VOL.    I. 


i§  1-1059. 


EMBEZZLEMENT. 

Arrest  for,  §  479. 

Arrest  in  justice's  court  in  case  of,  §  861. 

Reference  in,  provisions  as  to  do  not 
affect  jurisdiction  of  railroad  commis- 
sion, §  640. 

Eeference  in,  residence  of  referees  where 
public  body  is  plaintiff,  §  640. 

EMPLOYMENT.  See  Master  and  Ser- 
vant. 

ENGINEER. 

Exempt  from  jury  duty,  §  200. 

ENGLISH  LANGUAGE. 

Proceedings  iu  court  to  be  in  Eno;]islij 
§  185. 

ENTRY. 

Judgment,  entry  of.     See  .Tudgments. 
Real     estate,   on,    limitation    of     action, 

§§320,  328. 
Verdict,  of,  §§625,  628. 

EQUITY. 

Adverse     claim,     action     to     determine, 

§  1050. 
Quieting  title.     See  Quieting  Title. 

ERROR. 

In  law,  as  ground  for  new  trial,  §  657. 
Injury  not  presumed  from,  §  473. 
Not   affecting   substantial   rights,   disre- 
garded, §  475. 
Xot  presumed  prejudicial,  §  475, 

ESCAPE. 

Liability  of   sheriff,  §  501. 
Limitation  of  action  for,  §§  339,  340. 

ESTATE. 

Estates  for  life.     See  Life  Estates. 
Estate  for  years.     See  Tenant  for  Years. 

ESTATE  FOR  LIFE.     See  Life  Estates. 

ESTATE  FOR  YEARS.  See  Tenant  for 
Years. 

ESTATE  IN  COMMON.  See  Co-tenants; 
Partition. 

ESTATES  OF  DECEDENTS.  See  Execu- 
tors and  Administrators;  Probate 
Court. 

Appealability  of  order  relating  to  dis- 
tribution, §  963. 

Appealability  of  order  relating  to  home- 
stead, §  963. 

Appeal  lies  from  order  directing  or  re- 
fusing partition,  §  963. 

Appeal  lies  from  order  relating  to  pay- 
ment of  claims,  §  963. 

Appeal  lies  from  order  refusing  partition 
of  estate,  §  963. 

Appeal  lies  from  what  orders  respecting 
new  trials  and  appeals,  §  963. 

Appraisers  may  be  appointed  at  cham- 
bers, §  166. 

Costs,  liability  of  executor  for,  §  1031. 

Inventory  mav  be  received  at  chambers, 
§  166. 


ESTATES  OF  DECEDENTS.     (Continued.) 

Order  for   sale   of   property,   appeal   lies 
from,  §  963. 

Payment  of  debts,  appealability  of  order 
relating  to,  §  963. 
EVICTION. 

Of  execution  purchaser,  redress,  §  708. 
EVIDENCE.     See    Depositions;  Variance; 
Witnesses. 

Clerk  to  take  testimony  when  no  short- 
hand reporter,  §  1051. 

Compromise,   evidence   of   order   of,   not 
admissible,  §§  895,  997. 

Copies  from   books,   account,   etc.,   right 
to  take,  §  1000. 

Disregard  of  evidence,  court  may,  on  its 
own  motion,  grant  new  trial,  §  662. 

Docket-book    of    justice,    entries    in,    as 
evidence,  §  850. 

Errors  in  ruFiugs  disregarded  unless  sub- 
stantial injury, §  475. 

Examination     of     witnesses.     See    Wit- 
nesses. 

Execution-book  as  evidence,  §  683. 

Exception,  order  on  motion  to  strike  out 
evidence  deemed  excepted  to,  §  647. 

Exception,    ruling    on    objection    to    evi- 
dence deemed  excepted  to,  §  647. 

Exclusion  of  witnesses  from  courtroom, 
§  125. 

Inspection  and  production  of  documents. 
See  Inspection  of  Writings. 

Insufficiency  of  evidence  as  ground  for 
new  trial,  §  657. 

Justice's  docket,  prima  facie,  §  912. 

Local  customs  and  usages  in  actions  con- 
cerning mining  claims,  §  748. 

New  trial   for   disregard   evidence,  §  662. 

Newly    discovered    evidence,    as   ground 
for  new  trial,  §  657. 

Notice,    refusal    to    produce    books    and 
papers,  exclusion  of  evidence,  §  1000. 

Notice,    refusal    to    produce     books    and 
papers,   presumption    on,  §  1000. 

Offering  further  evidence  after  original 
case  closed, §  607. 

Order  of  introducing,  §  607. 

Order    of,    where     several     defendants, 
§  607. 

Rebuttal,  §  607. 

Reporter's  notes,  prima  facie,  §  273. 

Reports  of  phonographic  reporter,  prima 
facie  correct,  §  273. 

Ruling  on  objection  to,  deemed  excepted 
to,  §  647. 

Striking  out  order  granting  or  denying, 
deemed  accepted  to,  §  647. 

Usage,  §  748. 

Variance.     See  Variance. 

View  of  premises  by  jury,  §  610. 

Will,   admissible   where    action    to    qnict 
title  involves  gift  or  trust  under,  §  T-S. 

Writings,  inspection  and  production  of. 
See  Inspection  of  Writings. 
EXCEPTIONS. 

Absence    of    party,   decision    in,    diK.-'r^il 
excepted  to,  §  647. 


lAUEX.       VOi-.    1.       i5§  1-lU.')!). 


XXXV 


EXCEPTIONS.     (Continued.) 

After  judgment,  how  settled,  §  651. 

Bill  of,  all  exceptions  relied  on  to  be  con- 
tained in, §  650. 

Bill  of,  amendments  to,  adverse  party 
may  propose,  §  650. 

Bill  of,  amendments  to,  if  none  pre- 
pared, bill  may  be  presented  without 
notice,  §  650. 

Bill   of,  amendments   to   generally,  §  650. 

Bill  of,  amendments  to,  time  to  file, 
§650. 

Bill  of,  amendments  to,  service  of,  §  650. 

Bill  of,  amendments  to,  time  to  serve, 
extension  of,  §  1054. 

Bill  of,  application  for  new  trial,  when 
may  be  made  on,  §  65S. 

Bill  of,  certifying,  §  650. 

Bill  of,  decision  by  tribunal  other  than 
a  judge,  presentment,  settlement  and 
signing,  §  649. 

Bill  of,  decision  other  than  by  judicial 
officer,  presentment  and  settlement  of, 
§  650. 

Bill  of,  delivery  to  absent  judge,  §  650. 

Bill  of,  delivery  to  clerk,  and  dutv  of, 
§  650. 

Bill  of,  delivery  to  judge,  §  650. 

Bill  of,  engrossing,  time  for,  §  650. 

Bill  of,  evidence,  how  much  to  be  stated, 
§648. 

Bill  of,  evidence,  substance  of  reporter's 
notes  only  to  be  stated,  §  648. 

Bill  of,  filing  with  clerk,  §  650. 

Bill  of,  how  prepared  on  appeal  from 
order  vacating  judgment,  §  663a. 

Bill  of,  may  be  settled  and  signed  after 
officer  or  judge  ceases  to  be  such,  §  653. 

Bill  of,  must  contain   what,  §  650. 

Bill  of,  on  trial  before  referee,  prepara- 
tion, service,  amendment,  and  settle- 
ment, §  650. 

Bill  of,  preparation,  manner  of,  §  650. 

Bill  of,  preparation,  time  for,  §  650. 

Bill  of,  preparation,  time,  extension  of, 
§650. 

Bill  of,  presentation  and  settlement  on 
decision  by  judicial  officer  other  tlian 
judge,  §  653. 

Bill  of,  presenting  to  judge,  time  of,  and 
notice   of,  §§  649,   650. 

Bill  of,  presentment  of,  delivery  to  clerk 
and  duty  of  clerk,  §  650. 

Bill  of,  presentment  of,  to  be  presented 
to  judge  or  delivered  to  clerk,  §  650. 

Bill  of,  referee,  presentment  and  settle- 
ment where  ease  tried  before,  §  650. 

Bill  of,  refusal  to  allow,  application  to 
supreme  court  to   prove  same,  §  652. 

Bill  of,  service  of,  §  650. 

Bill  of,  service  of  certified  bill,  time  for, 
§  650. 

Bill  of,  service  of,  not  necessary  on 
party  defaulting  or  not  appearing, 
§650. 

Bill  of,  settlement  by  officer  other  than 
judge,  §  649. 

Bill  of,  settlement  by  referee,  §  650. 


EXCEPTIONS.      (Continued.) 

Bill  of,  settlement  by  supreme  court, 
manner  and  (!(Tect  of,  §  652. 

Bill  of.  settlement  of,  engrossing  and 
certifying,  §  650. 

Hill  of,  settlement,   notice  of,  §  650. 

Bill  of,  settlement,  notice  unnecessary, 
when,  §  650. 

Bill  of,  settlement,  on  death,  disqualifi- 
cation, absence  or  refusal  of  judge  or 
officer,  §  653. 

Bill  of,  settlement  of,  procedure,  §  65u. 

Bill  of,  settlement  of,  signing  and  filing 
of,  §§  649,  650. 

Bill  of,  settlement  of,  striking  out  re- 
dundant  and   useless   matter,  §  65u. 

Bill  of,  settlement,  service  on  adverse 
party, §  650. 

Bill  of  exceptions,  settlement  of,  notice 
of  time  of,  §  650. 

Bill  of,  settlement,  time  of,  judge  to  des- 
ignate, §  650. 

Bill  of,  settlement  to  be  made  at  time 
designated, §  650. 

Bill  of,  settlement,  to  decision  after 
judgment,  §  651. 

Bill  of,  settlement  without  notice  to  ad- 
verse party, §  650. 

Bill  of,  signature  by  judge  or  referee, 
§  650. 

Bill  of,  striking  out  redundant  matter, 
§  650. 

Bill  of,  time,  extension  of,  §  1054. 

Bill  of,  to  decision  after  judgment,  set- 
tlement of,  §  651. 

Bill  of,  to  decision  bv  officer  other  than 
judge,  §§  649,  650.  " 

Bill  of,  to  decision  may  be  presented  at 
time  made,  §  649. 

Bill  of,  to  decision,  to  be  signed  by 
judge  and  filed  with  clerk,  §  649. 

Bill  of,  what  to  contain,  §  650. 

Continuance,  order  refusing,  deemed  exe- 
cuted to,  §  647. 

Court  commissioners'  findings,  exception 
to,  how  made,  §  645. 

Decisions  after  judgment,  bill  of  excep- 
tions, preparation  and  settlenu'nt  of, 
§  651. 

Decisions  after  judgment,  exceptions, 
how  presented,  settled,  and  allowed, 
§  651. 

Decision  other  than  by  a  judge,  present- 
ment, settlement  and  signing  of  bill 
of   exceptions,  §§  649,   650. 

Defined,  §  646. 

Demurrer,  order  sustaining  or  overrul- 
ing, deemed  excepted  to,  §  647. 

Documents  on  file,  how  incorporated, 
§  648. 

Filing  with  clerk,  §  649. 

Final  decision  deemed  excepted  to.  §  647. 

Form  of,  generally,  §  648. 

Form  of,  when  made  on  insufficiency  of 
evidence, §  648. 

Insufficiency  of  evidence,  on  ground  of, 
requisites,  §  648. 


XXXVl 


i:^Di<.x.     VOL.  I.     §§1-1059. 


EXCEPTIONS.     (Continued.) 

Interlocutory  order  or  decision  deemed 
excepted  to,  §  647. 

Judge  out  of  office  may  settle,  §  653. 

Matters  deemed  excepted  to,  §  647. 

Order  or  decision  from  which  appeal  lies 
deemed  excepted  to,  §  647. 

Order,  when  deemed  excepted  to,  §  647. 

Pleading,  amendment,  order  allowing  or 
refusing,  deemed  excepted  to,  §  647. 

Pleading,  order  striking  out,  deemed  ex- 
cepted to,  §  647. 

Eeferee's  findings,  to,  how  made,  §  645. 

Eeferee,  presentment  and  settlement  of 
bill  of  exceptions  where  case  tried  be- 
fore, §  650. 

Settlement  of,  time  for,  §§  649,  650. 

Signing  by  judge  or  judicial  officer, 
§649. 

Statement  on  appeal.     See  Statement. 

Statement  on  motion  for  new  trial. 
See  New  Trial. 

Sureties,  to.     See  Surety. 

Time   for,  §  64<5. 

Verdict  deemed  excepted  to,  §  647. 

What  deemed  excepted  to,  §  647. 

EXECUTION.  See  Supplementary  Pro- 
ceedings. 

After  five  years,  §  685. 

Against  the  person,  §  632. 

Amount  of  property  to  be  seized,  §  691, 

Any  debtor  of  defendant  may  pay  cred- 
itor when,  §  716. 

Appeal,  remedy  on  reversal  where  prop- 
erty on  execution,  §  957. 

Appeal,  restitution  where  property  sold 
under,  and  judgment  reversed,  §  957. 

Assistance,  writ  of.     See  Assistance. 

Attached  property  may  be  sold  as  under, 
when,  §  548. 

Attached  property,  sale  under,  §  550. 

Book  as  evidence,  §  683. 

Book,  how  kept  and  what  to  contain, 
§683. 

Book,  open  to  inspection,  §  683. 

Claim  of  property,  bond,  amount  of  and 
conditions  in,  §  7101/-. 

Claim  of  property,  bond,  claimant  may 
give  and  release  property,  §  710. 

Claim  of  property,  bond,  estimate  of 
value  and  new  bond,  §  712i^. 

Claim  of  property,  bond,  filing  and  serv- 
ing of,  §  711. 

Claim  of  property,  bond,  justification,  ap- 
proval and   disapproval,  §§  712,  71214. 

Claim  of  property,  bond,  justification, 
manner  of,  §  713. 

Claim  of  property,  bond  of,  objections 
to,  §§711%,  712M.. 

Claim  of  property,  bond,  when  becomes 
effectual,  §  713yo. 

Claim  of  property,  how  made,  §  689. 

Claim  of  property,  indemnitv  and  under- 
taking on, §  689. 

Claim  of  propcrtv,  new  bond  on  disap- 
proval of  old,  §§  712,  7121/2. 


EXECUTION.     (Continued.) 

Claim    of     property,    proceedings   where 

portion  of  realty  to  be  sold  is  claimed, 

§■694. 
Company,   interests    in,    how   levied    on, 

§688. 
Contribution  among  defendants,  right  of 

and  how  enforced,  §  709. 
Corporation,   shares    in,    how   levied    on, 

§688. 
Costs  on  appeal,  for,  §  1034. 
Counties,   issuing   to    different,    at    same 

time,  §  687. 
County,  issuing  to  another,  right  of  and 

procedure, §  687. 
Credits,  how  levied  on,  §  688. 
Death   of  party,  when  may  issue  after, 

§686. 
Debts,  how  levied  on,  §  688. 
Dormant  judgment,  on,  §  685. 
Enforcement,    when    judgment    requires 

performance  of  particular  act,  §  684. 
Enforcement,    when    judgmenjt    requires 

sale  of  property, §  684. 
Enforcing  order  by,  §  1007. 
Excess    in     proceeds,    how    disposed    of, 

§691. 
Executed  how,  §  691. 
Exempt,  what  property  is,  §  690. 
Form  of,  §  682. 

Gold-dust,  how  returned,  §  688. 
Inspection,  execution-book  open  to,  §  683. 
Issuance  after  death,  §  686. 
Issuance  of,  after  five  years,  §  685- 
Issuance  of,  time  of,  §  681. 
Issuance,   time    of,   when    stayed   or   en- 
joined, §  681. 
Issuance,   to   whom   issued   when    affect- 
ing realty  which  becomes  part  of  an- 
other county,  §  687. 
Issuance,  to  whom  issued  when  property 

required  to  be  delivered,  §  687. 
Issuance,  to  whom  may  issue,  §  687. 
Issue,  may,  to  any  sheriff,  §  687. 
Issue  of,  where  judgment  for  delivery  of 

property, §  682. 
Issued  to  different  county,  how  executed, 

§  682. 
Issues  in  name  of  people,  §  628. 
Issuing    to    different    counties    at    same 

time,  §  687. 
Judgment  barred  by  limitation,  on,  §  685. 
Judgment,  manner  of  enforcing,  §  684. 
Judgments  against  officers,  how  enforced, 

§710. 
Justice's    court,    from,  §§  901-905.     See 

Justices'  Courts,  XXI. 
Justice's  judgment  docketed  in  superior 

court,  on,  §  899. 
Leasehold   when    subject   to    redemption 

after  sale  on  execution  and  when  not, 

§  700a. 
Levy,  amount  of  property  to  be  seized, 

§691. 
Levy,  defendant  may  indicate   property 

when,  §  691. 
Levy,  how  made,  §§  682,  688,  691. 


INDEX.      VOL.    I.       §§  1-1059. 


XXXVll 


EXECUTION.     (Continued.) 

Levy,  property  in  hands  of  heirs,  ten- 
ants, trustees,  etc.,  §  682. 

Levy,   property  subject  to,  §  688. 

Levy  to  be  made  only  on  part  of  prop- 
erty, if  sufficient,  §  691. 

Lew,  until,  property  not  afifected  by, 
§  688. 

Levy,  writ,  how  executed,  §§  682,  688, 
691. 

Limitation,  judgment  barred  by,  §  68o. 

Limitation  of  action  against  officer  for 
money  collected  upon,  §  339. 

Limitation  of  action  against  officer  for 
seizure,  §  341. 

May  issue  to  any  sheriff,  §  6S7. 

May  issue  at  same  time  to  dilferent  coun- 
ties, §  687. 

Money,  amount  and  kind  of,  payable  in, 
§682. 

Money,  execution  for,  how  levied,  §  684. 

Money,  order  for  payment  of.  enforce- 
able by, §  1007. 

Name  of  people,  issues  in,  §  682. 

Order  of  court,  enforcing  by,  §  1007. 

Payment  by  any  creditor,  sheriff's  re- 
ceipt, §  716. 

Payment  in  specific  kind  of  money,  how 
executed, §  682. 

People,  to  issue  in  name  of,  §  682. 

Performance  of  act,  how  enforced,  §  684. 

Person,  against  the,  after  return  unsatis- 
fied, §  684. 

Person,  against  the,  how  executed,  §§ 
682,  684. 

Personal  property,  how  subjected  to, 
§§  682,  684. 

Possession,  writ  of.     See  Assistance. 

Property,  how  subjected  to,  §§  682,  684, 
688. 

Property  in  hands  of  heirs,  tenants,  trus- 
tees, etc.,  §  682. 

Property  not  afifected  bv,  until  levy, 
§  688. 

Property  not  capable  of  manual  delivery, 
how  levied  on,  §  688. 

Property,   what   subject   to,  §  688. 

Keal  property,  how  subjected  to,  §§  682, 
684,  688. 

Eeceiver  in  aid  of,  §  564. 

Record  of,  as  evidence,  §  683. 

Recording  and  indexing,  where  realty 
levied  on, §  683. 

Redemption,  action  by  redemptioner  for 
accounting  of  rents  and   profits,  §  707. 

Redemption  by  a  redemptioner,  §  703. 

Redemption  by  judgment  debtor,  §  703. 

Redemption,  certificate  of,  filing  and  re- 
cording, §  703. 

Redemption,  judgment  creditor  may  re- 
deem  estate   of   decedent,  §  1505. 

Redemption,  leasehold  sold  under  execu- 
tion, when  subject  of  and  when  not, 
§  700a. 

Redemption,  notice  of,  giving  and  filing 
of,  §  703. 

Redemption,  notice  to  be  filed  with  re- 
corder when,  §  703. 


EXECUTION.     (Continued.) 

Redemption   of   realty,   who   may   efifect, 

§701. 
Redemption,  payment  in  kind  of  money 

specified  in  judgment,  §  704. 
Redemption,  [layments  may  be  made  to 

whom,  §  704. 
Redemption,    property    subject    to,   with 

what   exception,  §  700a. 
Redemption,   rents   and    profits   a  credit 

on, §  707. 
Redemption,  rents  and  profits,  action  for 

accounting,  §  707. 
Redemption,  rents  and  profits,  time,  ex- 
tension   of,   where    purchaser    fails   to 

account,  §  707. 
Redemption,  restraining  waste  until  time 

expires,  §  707. 
Redemption,   right   of,  §  700a. 
Redemption,      successive      redemptions, 

amount  to  be  paid,  §  703. 
Redemption,   successive   redemptions  au- 
thorized, §  703. 
Redemption,       successive       redemptions, 

time  for,  §  703. 
Redemption,   tender   equivalent   to   pay- 
ment, §  704. 
Redemption,  time  within  which  may  be 

had,  §§  702,  703. 
Redemption,    time,   extension    of    where 

purchaser  fails  to  account,  §  707. 
Redemption,  what  property  not  subject 

of,  §  700a'. 
Redemptioner,  affidavit  by,  §  705. 
Redemptioner,  defined,  §  701. 
Redemptioner,  what   he  must   do   to   re- 
deem, §  705. 
Redemptioner,    what    must    pay,  §§  702, 

703. 
Redemptioners,  who  may  redeem,  §  701. 
Release  of  property,  how  effected,  §  688. 
Rents  and  profits  from  time  of  sale  till 

redemption,  §  707. 
Rents   and  profits  from  time   of  sale  to 

execution,  accounting  for,  §  707. 
Rents   and   profits  from  time  of  sale  to 

redemption,  statement  of,  §  707. 
Requisites  of,  §  682. 
Return,    gold-dust     to     be    returned     as 

money,  §  688. 
Return  of,  recording  where  realty  levied 

on, §  683. 
Returnable   to   whom,  §  683. 
Returnable  when,  §  683. 
Sale,  absolute  in  what  cases,  §  700a. 
Sale,  after  sufficient  property  sold,  sale 

to  stop,  §  694. 
Sale,  between    what    hours    to    be    held, 

§694. 
Sale,  certificate  of,  §§  698,  699. 
Sale,  certificate  of,  filing  duplicate  with 

recorder, §  700a. 
Sale,  certificate  of  sale,  sheriff  to  give, 

§  700a. 
Sale,  certificate     of,    what     to     contain, 

§  700a. 
Sale,  damages  to  realty,  purchaser  may 

recover  for,  §  746. 


XXXVlll 


INDEX.       VOL.    I, 


1-1059. 


EXECUTION.     (Continued.) 

Sale,  deed,  purchaser,  when  entitled  to, 
§703. 

Sale,  delivery  of  property  not  suscep- 
tible  of  manual  delivery,  §  699. 

Sale,  delivery  of  property  susceptible  of 
manual  delivery,  §  698. 

Sale,  enjoining  injury  to  property  after, 
and  before  conveyance,  §  745. 

Sale,  evicted  purchaser,  remedy  of,  §  708. 

Sale,  excess  in  proceeds,  how  disposed 
of,  §  691. 

Sale,  how  conducted,  §  69-1. 

Sale,  judgment  directing,  how  enforced, 
§684. 

Sale,  manner  of,  §§  693,  694. 

Sale,  notice,  how  given,  §  692. 

Sale,  notice  in  case  judgment  specifies 
kind  of  money  payable  in,  §  692. 

Sale,  notice  in  case  of  perishables,  §  692. 

Sale,  notice  in  case  of  personalty,  §  692. 

Sale,  notice  in  case  of  realty,  §  692. 

Sale,  notice,  penalty  for  defacing  or 
taking  down,  §  693. 

Sale,  notice  where  judgment  payable  in 
specified  kind  of  money,  §  692. 

Sale,  notice,  without,  penalty,  §  693. 

Sale,  officer,  liability  for  proceedings  on 
refusal  of  purchaser  to  pay,  §  697. 

Sale,  officer  or  deputy  not  to  purchase, 
§  694. 

Sale,  order  of,  judgment  debtor  may  di- 
rect, §  694. 

Sale,  personalty,  delivery  of  and  certifi- 
cate, §  698. 

Sale,  personalty,  manner  of,  §  694. 

Sale,  property  not  susceptible  of  deliv- 
ery, certificate  of  sale,  §  699. 

Sale,  purchaser,  eviction  from  property, 
rights  on, §  708. 

Sale,  purchaser,  failure  to  get  possession 
because  of  irregularity,  rights  of, 
§708. 

Sale,  purchaser,  failure  to  get  posses- 
sion, revival  of  judgment  in  favor  of, 
§708. 

Sale,  purchaser  may  recover  damages  for 
injuries   to   realty, §  746. 

Sale,  purchaser,  rights  of,  on  a  reversal 
or  discharge  of  judgment,  §  708. 

Sale,  purchaser,  rights  of,  where  prop- 
erty attached,  §  700. 

Sale,  purchaser,  title  of,  §  700. 

Sale,  purchaser,  waste  by,  restrained, 
§706. 

Sale,  real  property,  manner  of,  §  694. 

Sale,  real  property,  on  claim  of  portion 
by  third  person,  §  694. 

Sale,  real  property,  rents  from  time  of 
sale  until   redemption,  §  707. 

Sale,  refusal  of  purchaser  to  pa^',  liabil- 
ity of,  §  695. 

Sale,  refusal  of  purchaser  to  pay,  liabil- 
ity of  sheriff,  §  697. 

Sale^  refusal  of  purchaser  to  pay,  pro- 
ceedings on,  §  695. 

Sale,  refusal  of  purchaser  to  pay,  subse- 
quent bid  refused, §  696. 


EXECUTION.      (Continued.) 

Sale,  relation  of  title  of  purchaser,  §  700. 
Sale,  to  be  at  public  auction,  §  694. 
Sale,  to  be  in   separate   lots   or  parcels, 

§694. 
Sale,   to   cease   when  sufficient   property 

sold, §  694. 
Sale,  what  bids  may  be  refused,  §  696. 
Sale,  what  title  passes,  §  700. 
Sale,  when  absolute,  §  700a. 
Sale,  when  conveyance  to  be  made,  §  703. 
Satisfaction   of  judgment   by   return   of, 

§  675. 
Sheriff's   deed,  when   purchaser   entitled 

to,  §  703. 
Ships,   against,   application   of   proceeds, 

§  825. 
Stay  of,  power  of  court  as  to,  §  681a. 
Subrogation  by  debtor  paying,  §  709. 
Subrogation  of  surety  paying,  §  709. 
Supplementary    proceedings,  §§  714-721. 

See  Supplementary  Proceedings. 
Third  person,  claim  of  property  by,  §  689. 
Time  of,  issuance  after  five  days,  §  685. 
Time  within  which  may  issue,  §  681. 
Time    within    which     may    issue,    when 

stayed  or  enjoined,  §  681. 
To  issue   in  name   of  people,  §  682. 
To  whom   may  issue,  §  687. 
To   issue   to   whom,   when   concerns   real 

property,  §  687. 
To   whom    to    issue,    when    property    re- 
quired to  be  delivered,  §  687. 
Until    levy,    property    not    affected    bv, 

§  688. 
Vessels,  against,  application  of  proceeds, 

§825. 
Waste,  enjoining,  after  sale  on  execution 

and  before  conveyance,  §  745. 
"Waste  may  be  restrained  until   time  to 

redeem  expires,  §  706. 
Waste,  what  is  not,  §  706. 
What  liable  to  be  seized  on,  §  688. 
What  property  exempt  from,  §  690. 
What  to  contain,  §  682. 
What  to  require,  §  682. 
Who  may  issue,  §  682. 
Whom  to  be  directed  to,  §  682. 
Writ  of,  how  executed,  §  691. 
Writ  to  require  what  of  sheriff,  §  682. 

EXECUTION-BOOK,  §  683. 

EXECUTORS  AND  ADMINISTRATORS. 

See  Estates  of  Decedents;  Probate 
Court;   Wills. 

Accounting  and  settlement,  appealabil- 
ity of  order  relating  to,  §  963. 

Account  may  be  received  at  chambers, 
§166. 

Action  by,  beneficiaries  need  not  be 
joined,  §  369. 

Action  by,  within  what  time  may  be 
brought,  §§  353,  355. 

Actions  against,  within  what  time  ma}' 
be  brought,  §  353. 

Appeal  from  justice's  judgment,  dis- 
pensing with  bond,  §  946. 


INDEX.      VOL.    I.       §§  1-1039. 


XXXIX 


EXECfUTOES  AlTD  ADMINISTRATOES. 

(Continued.) 
Appeal   lies  from   order  revoking  or  re- 
fusing to  revoke  letters  testamentary. 

etc.,  §  963. 
Appeal  lies  from  what  order  respecting, 

§  963. 
Appointnnent,  certificate   of,  seal,  §  153. 
Bon<l.  judge  mav  apfirove,  at  chambers, 

§  166. 
Bond,  stands  as  security  on  appeal,  §  965. 
Code     sections     governing    appointment, 

powers    and    duties,  §  304. 
Costs,  allowance  of,  to,  §  1031. 
Costs,     individually     liable     for,     when, 

§1031. 
Costs  in  actions  by  or  against  executors, 

liability   for,  §  1*031. 
Death    caused    by    negligence,    may    sue 

for,  §  377. 
Death  pending  appeal,  extension  of  time 

to  sue,  §  355. 
Death,  wrongful,  may  sue  for,  §  377. 
Dispensing     with     security     on     appeal, 

§946. 
Execution  after  death  of  party,  executor 

may  have  issued,  §  686. 
Execution,     issuance     of,     after     death, 

§  686. 
Extension    of    time   to    sue    on    death    of 

person, §  353. 
Judge    niaj'    issue    letters    of    chambers, 

§  166. 
Judgment  after  death,  how  paid,  §  669. 
Letters    of    administration,    appeal    lies 

from  order  granting  or  refusing,  §  963. 
Letters    testamentary,   appeal    lies    from 

order  granting  or  refusing,  §  963. 
Liability  of  executor  for  costs,  §  1031. 
Limitation     of    action     by    or    against, 

§§  353,   355. 
May  sue  without  joining  persons  benefi- 
cially interested,  §  369. 
Negligence  causing  death,  mav  sue  for, 

§377. 
OfHcial  bond,  sufficient,  §  965. 
Orders   relating   to   issuing,   refusing   to 

issue,  or  revoking  letters,  appealable, 

§963. 
Eeversal  of  order  appointing,  validity  of 

acts,  §  966. 
Eevoeation,   appeal   lies    from    order   re- 
voking  or  refusing   to   revoke   letters 

testamentary,  etc.,  §  963. 
Substitution  of,  as  party,  §  385. 
Suspension,     judge      may     suspend     at 

chambers,  §  166. 
Wrongful  death,  may  sue  for,  §  377. 

EXEMPLAEY  DAMAGES.     See  Damages. 

EXEMPTION. 

Answer  of  insurance  company  claiming, 

what  to  state,  §  437a. 
From  jnrv  duty,  §  200. 
From  jury  duty,  affidavit.  §  202. 
Judgment  against  officers,  how  enforced, 

§710. 


EXEMPTION.      (Continued.) 

What   property   exempt   from   execution, 
§690. 

EXHIBITS. 

Demand   for  inspection   of   original,   and 

refusal  of,  §  449. 
Genuineness   of  instruments  annexed  to 

ploading.s,  when   admitted,  §§  447,  448. 
Genuineness    or    instruments   annexed   to 

pleadings,  when  not  admitted,  §  449. 

EXONEEATION. 

Of  bail,  §§  4.SS,  489,  491. 

EX  PAETE  OEDEES. 

Vacation   and   modification   of,  §  937. 

EXPEESS  AGENT. 

Exempt  from  jury  duty,  §  200. 

EXTENSION  OF  TIME. 

In  general,  §  1054. 

EXTEA  SESSIONS. 

Of  superior  court.     See  Superior  Court. 


FACTS. 

Conclusions  of  law  not  supported  by 
finding  of  fact,  setting  aside  judgment 
for,  §663.  ''     ^ 

Errors  in,  setting  aside  judgment  for, 
§  663. 

Findings  of.     See  Findings. 

Instructions.     See  Instructions. 

Insufficiency  of,  ground  for  demurrer, 
§430. 

Issue  of  fact,  how  it  arises,  §  590. 

Issues  of  fact,  by  whom  tried,  §  592. 
See  Issues. 

Question  of  fact  not  arising  upon  plead- 
ing, reference  of,  §  639. 

Eeference  to  ascertain,  §  638. 

Keference  to  try  issues  of  fact,  §  638. 

Special  issues  not  made  by  pleadings, 
how  tried,  §  309. 

To  be  stated  in  complaint,  §  426. 

When  general  or  special  may  be  givc- 
§625. 

FALSE  IMPEISONMENT, 

Limitation  of  action  for,  §  340. 

FAEMEE. 

What  property  of,  exempt  from  execu- 
tion, §  690. 

FATHEE.     See  Parent  and  Child. 

FEDEEAL  COUETS. 

Judgment,  limitation  of  action  on,  §  336. 
Proceedings  in,  not  staved  bv  injunction, 
§  526. 

FEES. 

Appeal  to  superior  court,  justice  to  pay 
fees  collected  to  county  clerk,  §  981. 

Appeal  to  superior  court,  prepayment  of 
county  clerk's  fees  in  case  of,  §  9S1. 

Attorney,  of,  not  chargeable  as  costs 
generally,  §  1021. 


xl 


INDEX.       VOL.    I.       ^§  1-1059. 


FEES.      (Continued.) 

Attorney,  of,  left  to  agreement  of  par- 
ties, §'1021. 

Attorneys,  generally.     See  Attorneys,  II. 

Costs.     See  Costs. 

Court  commissioner's,  §  259. 

Filing  transcript  of  judgment  against 
officer,  fee  for,  §  710. 

Justice's  court,  in,  §  91. 

Justice's  court,  in,  collection,  report,  and 
payment  into  treasury,  §§  103,  103b. 

Justice's  court,  in,  payment  of,  §  91. 

Justices,  fees  of,  j-eport  of  and  payment 
into  treasury, §  103. 

Justices  in  cities  of  second  class,  of, 
§  102a. 

Justices'  courts.  See  Justices'  Courts, 
XXII. 

Officer's  when  proceedings  stayed  on  ap- 
peal  to    superior    court,  §  979. 

Official  reporter's,  §  274. 

Referees',  §§  768,  1028. 

Transfer  of  actions,  dismissal  where  fees 
not  paid,  §  581b. 

Transfer  of  actions,  filing  transferred 
pleadings  anew  without  fee  after  dis- 
missal, §  581b. 

Venue,  on  change  of,  §  399. 

FELONY. 

Conviction  of  attorney  of,  certificate 
thereof  to  supreme  court,  §  288. 

Conviction  of,  suspension  or  removal  of 
attorney,  §§  287,  289. 

FEMININE. 

Masculine  gender  includes,  §  17. 

FERRY. 

Keeper  of,  exempt  from  jury  duty,  §  200. 

FICTITIOUS  NAME. 

Suing  party  by,  §  474. 

FIDUCIARY  RELATION. 

Judgment  for  money  received  in,  payable 
in  same  kind  of  money,  §  667. 

FIGURES. 

Numbers  may  be  expressed  by  figures,  or 
numerals,  §  186. 

FILING. 

Pleadings  subsequent  to  complaint,  §  465. 

FINDINGS.  See  Court  Commissioner; 
Eeference. 

Commissioner's,  effect  and  force  of,  §  644. 

Commissioner's,  judgment  on,  §  644. 

Conclusions  of  law  inconsistent  with,  va- 
cation of  judgment,  §  663. 

Conclusions  of  law  not  supported  by 
findings  of  fact,  setting  aside  judg- 
ment for,  §  663. 

Judgment  on,  §  633. 

•Judgment  roll,  as  part  of,  §  670. 

Must  be  in  writing,  and  filed  within 
thirty  days,  §  632. 

Notice  of  motion  to  set  aside  judgment 
for  errors  in,  how  made,  Eind  hearing 
of,  §  66311.. 

Of  fact  and  conclusions  of  law  must  be 
stated  separately,  §  633. 


FINDINGS.     (Continued. 

Of  fact  may  be  waived  hov. ,  §  634. 
Referee's,  effect  and  force  of,  §§  644,  645. 
Referee's,  how  excepted  to  and  reviewed, 

§  645. 
Referee's,  judgment  on,  §  644. 
Referee's,  must  state  conclusions  of  law 

and  fact  separately,  §  643. 
Referees  to  report  within  twenty  days, 

§643. 
Service  of,  §  634. 

Signing  of,  constitutes  decision,  §  1033. 
Signing  of,  judge  not  to  sign    until  five 

davs  after  service  of  on  other  party, 

§  634. 
"Waived  by  consent  in  writing,  §  634. 
Waived  by  failure  to  appear,  §  634. 
Waived  by  oral  consent  in  court,  entered 

in  minutes,  §  634. 
Waived,  how  findings  of  fact  are,  §  634. 

FINE.     See  Penalty. 

Arrest   for,   in  justice's   court,  §  861. 

Arrest  in  action  for,  §  479. 

Claim  and  delivery,  affidavit  in  relation 
to,  §  510. 

Contempt,  for,  before  justice  of  peace, 
§909. 

Costs  of  course,  in  action  involving, 
§§  1022,  1024. 

Juror,  for  failure  to  attend,  §  238. 

Justice's  court,  recovery  in,  §  112. 

Justices  in  cities  of  second  class,  disposi- 
tion of  fines  by,  §  102a. 

Police  court,  violation  of  ordinance, 
§932. 

Transmitting  papers  on  appeal  to  su- 
perior court,  for  not,  §  977. 

Usurpation  of  office,  for,  §  809. 

FIRE. 

Burnt  records  or  documents.  See  Burnt 
or  Destroyed  Records  or  Documents. 

Nunc  pro  tunc  filing  of  papers  destroyed 
by,  §  1046a. 

FIRE  COMPANY. 

Apparatus  pertaining  to,  exempt,  §  690. 

FIRE  DEPARTMENT. 

Actions  for  damages  or  on  contract  to 
be  brought  against  city,  §  390. 

Apparatus  of,  exemption  of,  §  690. 

Members  of  department  cannot  be  sued 
for  damages  or  on  contract,  §  390. 

Members  of,  exempt  from  jury  duty, 
§200. 

FIREMEN. 

Exemption  of  from  jury  duty,  §  200. 

FISHERMAN. 

What  property  of,  exempt,  §  690. 

FISHING-BOAT. 

Exemption  of,  §  690. 

FORCIBLE    ENTRY    AND    UNLAWFUL 
DETAINER. 

Appeal     in,     jurisdiction      of     supreme 

court,  §  52. 
Damages,  treble,  in,  §  735. 
Evidence,  what  may  be  given,  §  838. 


INDEX.       VOL.    I.     .§§1-1059. 


zli 


FORCIBLE    ENTRY    AND    UNLAWFUL 

DETAINER.      (Continued.) 
Execution,  justice  may  grant  stay  not  to 

exceed  ten  dayg,  §  901a. 
Jurisdiction,  concurrent,  of  superior  and 

justice's  court,  §  113. 
.Jurisdiction  in  cases  of,  §§  76,  113. 
Jurisdiction  of  justice's  court,  §§  113,  838. 
Jurisdiction  of  supreme  court  in  case  of, 

§52. 
Justice's    court,    jurisdiction    of,  §§  113, 

838. 
Justice's  court,  summons  may  be  served 

■out  of  county,  §  848. 
Rent,  treble  damages,  §  735. 
Summons     in     justice's     court     may     be 

served  out  of  county,  §  848. 
Treble  damages  in,  §  73.5. 

FORECLOSURE  OF  MORTGAGE. 

Action,  but  one  allowed  for  recovery  of 
debt,  §  72tj. 

Action  to  be  in  accordance  with  code, 
§  726. 

Appeal  from  decree  of  foreclosure  of 
mortgage  of  personaltv,  bond  on, 
§  943. 

Appeal  lies  from  interlocutory  judgment 
in  action  to  redeem,  §  963. 

Attorneys'  fees,  §  726. 

But  one  action  for  recovery  of  debt, 
§726. 

Chattel  mortgage,  of,  undertaking  on  ap- 
peal from,  §  943. 

Commissioner,  appointment  of,  §  726. 

Commissioner,  compensation  of,  §  729. 

Commissioner,  conduct  of  sale,  §  726. 

Commissioner,  death,  disqualification,  ab- 
sence of,  elisor,  §  726. 

Commissioner,  oath  and  undertaking  of, 
§§  726,  729. 

Commissioner,  powers  and  duties  of, 
§§  726,  729. 

Commissioner,  report  of,  affidavits  show- 
ing notice  of  time  and  place  of  sale, 
§729. 

Commissioner,  report  of,  force  of,  §  729. 

Commissioner,  report  of,  to  contain  what, 
§729. 

Commissioner,  report,  time  to  make, 
§729. 

Commissioner,  report  of,  verification  of, 
§729. 

Conveyance,  mortgage  not  deemed  to  be, 
whatever  its  terms,  so  as  to  avoid, 
§744. 

Costs  and  expenses,  §  726. 

Debt  falling  due  at  different  times,  pro- 
ceedings in  case  of,  §  728. 

Decedent's  estate,  deficiency  judgment, 
§  1578. 

Decedent's  estate,  mortgage  of,  §  1578. 

Decedent's  estate,  redemption,  §  1505. 

Deficiency  judgment,  estate  of  decedent, 
§  1578. 

Deficiency  judgment,  how  entered,  §  726. 

Deficiency,  personal  liability  for,  §  726. 

Deficiency  judgment,  when  entered,  §  726. 

Elisor,  powers  and  duties  of,  §  726. 


FORECLOSURE  OF  MORTGAGE.      (Con- 
tinued.) 
Elisor  to  sell,  oath  and  undertaking  of, 

§  726. 

PHisor,  when  appointed,  §  726. 

Exclusive  remedy,  §  726. 

Injunction  to  prevent  injury  to  property 
pending,  S  745. 

Installments,  proceedings  when  debt  pav- 
able  in,  §  728. 

Interlocutory  judgment  in  action  to  re- 
deem, time  for  appeal,  §  939. 

Lis  pendens,  filing,  §  409. 

Necessary,  whatever  the  terms  of  the  in- 
vestment, §  744. 

Parties,  who  need  not  be  made,  §  726. 

Personal  property,  foreclosure  of  mort- 
gage, bond  on  appeal,  §  943. 

Place  of  trial,  §  392. 

Pleading  written  instruments,  §§  447-449. 

Proceedings,  in  general,  §  726. 

Proceedings  when  debt  falls  due  at  dif- 
ferent times,  §  728. 

Receiver,  appointment  of,  §  564. 

Redemption,  note  of  record  of  mortgage 
to   be  producc<l,  §  705. 

Redemption  of  estate  of  decedent,  §  1505. 

Redemption.       See     Executions;     Mort- 


Sale,  manner  of,  §  726. 

Sale  may  be  directed,  §  726. 

Sale  of  land  in  several  counties,  manner 
of,  §  726. 

Surplus,  disposition  of,  §  727. 

Surplus  money  to  be  deposited  in  court, 
§  727. 

Undertaking  on  appeal  where  judgment 
decrees  sale  of  personalty  on  foreclos- 
ure, §  943. 

Undertaking  to  stay,  on  appeal,  §  945. 

Unrecorded  conveyances  and  encum- 
brances, §  726. 

Waste,  enjoining,  §  745. 

FOREIGN  CORPORATION. 

Costs,  new  or  additional  security,  §  1036. 
Costs,  security  for,  dismissal  for  failure 

to  file,  §  1037. 
Costs,  security  for,  time  to  give,  §  1037. 
Costs,  stay  until  security  for,  filed,  §  1036. 
Security    for    costs    may    be    required, 

§  1036. 
Service  on,  §  411. 

Summons,  publication,  §§  412,  413. 
Surety,  acting  as.     See  Surety. 

FOREIGN  JUDGMENTS. 

Proceedings  in  sister  state  on,  not 
stayed,  §  526. 

FOREIGN  LAWS. 

Statutes  of  limitations,  §  361. 

FOREIGN  RESIDENT. 

Summons,  how  served  on,  §  412. 

FOREIGNER.     See  Alien. 

FORFEITURE. 

Justice's   court,   recovery   of,   in,  §  112. 
Lease,   of,  §§  1161,   1179.     See    Landlord 
and  Tenant. 


3^1ii 


INDEX.      VOL..    1.       §§  1-1059. 


FORFEITURE.      (Continued.) 

Limitation  of  action  on,  §§  338,  340. 
Limitation    of    action    to    recover    from 

stoclcliolders  or  directors,  §  359. 
On  sale  under  execution,  witliout  notice, 

§  693. 
Place  of  trial  in  action  for,  §  393. 
Venue     where      offense     committed     on 

waters  in  several  counties,  §  39.5. 

FORGERY. 

Limitations  in  actions  against  bank  pay- 
ing forged  or  raised  check,  §  340. 

FORMS.     See  Forms  of  Actioi;  Forms  of 

Pleading. 
Abstract  of  judgment,  §  897. 
Notice  of  hearing  in  justice's  court,  §  850. 
Process     issued     by    justice's     clerks    in 

townships     in     counties      of     seventh 

class,  §  103b. 
Satisfaction      of     mortgage,      form      of, 

§  67oa. 
Seal  of  superior  court,  of,  §  149. 

FORMS  OF  ACTION. 

But  one  form,  §  307. 

FORMS  OF  PLEADING. 

Code  prescribes,  §  421, 

FRANCHISE. 

Action  against  party  usurping,  §  803. 

Usurpation  of,  proceedings  bv  attorney- 
general,  §  803. 

Usurpation,  §§  S02-810.  See  Usurpation 
of  OflSce  and  Franchise. 

FRAUD. 

Arrest  for,  §  479. 

Arrest  for,  in  justice's  court,  §  861. 
Limitation  of  actions  for,  §  338. 
Limitation   of  actions,  how  affected  by, 

§338. 
Receiver,  appointment  of,  §  564. 

FRAUDULENT  CONVEYANCE. 

Appointment  of  receiver  in  action  to  va- 
cate, §  564. 
Bond   by   grantee   on    suit   to   set   aside 

filing  of,   and  serving  copy,  §  677%. 
Bond   by   grantee   on   suit   to    set   aside 

form,  condition,  and  amount  of,  §  677 
Bond   by   grantee   on   suit   to   set   aside 

manner    of    justification     of    sureties 

§  6791/0. 
Bond   by   grantee   on    suit    to   set   aside 

objections  to  sureties,  §  678. 
Bond   by   grantee   on   suit   to   set   aside 

new  bond  may  be  given  when.  §  679. 
Bond    by   grantee    on    suit    to    set    aside 

when  becomes  effective,  §  680. 
Bond   by   grantee   on   suit   to   set   aside 

judgment,  when   may  be  rendered   on 

§  6801/2. 
Bond   by   grantee   on    suit   to   set   aside 

objection    that    estimated    value    less 

than     market    value,     proceedings    on 

§§  678,  679. 
Bond   by   grantee   on    suit   to   set   aside 

sureties,    justification,     approval     and 

disapproval,  §§  678,  eTSVo,  67911.. 


FRAUDULENT      CONVEYANCE.      (Con 

tiuued.) 
Bond,  grantee  may  give,  on  suit  to  set 

aside,  §  676. 
Bond  on  suit  to  set  aside,  grantee  giving 

may  convey  or  encumber,  §  676. 

FUNDS.     See  Receivers. 

Restraining      illegal      expenditure      of, 
§  526a. 

FURNITURE. 

Exempt  from  execution,  §  690. 

FUTURE. 

Included  in  present  tense,  §  17. 

FUTURE  ESTATES. 

Protecting  in  partition,  §  781. 


G 

GARNISHMENT.     See  Attachment. 

Garnishee,  when  liable  to  plaintiff,  §  544. 

GENDER. 

Of  words  in  code,  construction  of,  §  17. 

GENERAL  DENIAL.     See  Answer. 

GIFT. 

Actions  involving  validity  of  gifts  under 

will.     See  Wills. 
Action    to     quiet     title,     involving    gift 

under  will,  will  admissible,  §  738. 
Action  to  quiet  title,  involving  validity 

of  gift   under    will,   conclusiveness   oi 

determination,  §  738. 
Action    to    quiet    title,   validity    of    gift 

under  will  may  be  determined,  §  738. 

GOLD-DUST. 

Levy  on  under  execution,  how  returned. 

§  688. 

GOVERNOR. 

Direction    to    attorney-general    to    bring 

quo  warranto,  §  803. 
Judge,  appointing,  to  preside  over  extra 

session   of  superior  court,  §  67a. 
Request   of,   to     superior    judge    to    hold 

court  for  another,  §  160. 
Vacancv  in   superior  court,  governor   to 

fill,  §70. 

GRAND  JURY. 

Ballot-box,   depositing   name    in,  §  209. 

Constituted,  how,  §  242. 

Defined,  §  192. 

Drawing,  certifying,  and  listing,  §  241. 

Drawing  names  by  clerk,  §  242. 

Drawing  of,  order  for,  §  241. 

Drawn,  how,  §  241. 

Impaneled,  when  may  be,  §  241. 

Impaneling,  §§  241-243. 

Impaneling,    manner    of,    prescribed    bv 

Penal  Code,  §  243. 
List  of  jurors,  by  whom  and  when  made. 

§  204. 
List  of,  to  be  placed  with  county  clerk, 

§  204. 
Names  of  jurors,  how  drawn,  §  242. 


INDEX.       VOL.    I.       §§  1-1059. 


xliii 


GRAND  JUHY.     (Continued.) 

Names  of  jurors  not  drawn  to  be  placed 
on   list  for  succeeding  year,  §  211. 

Names  of  .iurors  not  impaneled  to  be  re- 
placed in  box,  §  241. 

Names  to  be  drawn  from  grand-iury  box, 
§211. 

Number  of  jurors,  §§  192,  241,  242. 

Number  of  times  to  be  drawn  each  year, 
§241. 

Order  for.  §  241. 

Panel,  how  filed,  §  242. 

Selecting  and  listing  of  grand  jurors  re- 
quired, §  204. 

Superior  court  may  direct  drawing  of, 
when,  §  241. 

When  may  be  impaneled,  §  241. 

Who  competent  to  act.  §  198. 

AVho  not   competent  to  act,  §  199. 

GROWING  CROPS. 

Attachment  of,  §  542, 

GROWING  TREES. 

Damages  for  cutting  or  injury,  §§  73.3, 
734. 

GUARANTOR.     See  Surety. 

GUARDIAN  AD  LITEM.  See  Infant;  In- 
sane  Persons. 

Appointment  of,  in  justice's  court,  §  843. 

Appointment  of,  where  general  guardian, 
§372. 

Compromise  of  case,  authority  of  as  to, 
§  372. 

For  infant,  when  may  be  appointed, 
§372. 

For  lunatic,  how  appointed,  §§  373,  843. 

Infant  or  insane  person  to  appear  by 
general  guardian,  or  by,  §  372. 

When  may  be  appointed,  §  372. 

GUARDIAN  AND  WARD. 

I.  Who  entitled  to   act;    appointment; 

practice. 
II.  Letters  of  guardianship. 

III.  Qualification;   bond. 

IV.  Powers,   duties,    and  liabilities;    ac- 

tions. 
V.  Partition  of  property. 
VI.  Accounting. 
VII.  Appeals. 
VIII.  Termination  of  authority. 
IX.  Miscellaneous  provisions. 

Guardian    ad    litem.     See    Guardian    ad 

Litem. 
Insane  persons,  of.     See  Insane  Persons. 

I.     Who    entitled    to    act;     appointment; 
practice. 

Appointment,  certificate  of,  to  be  sealed, 
§  153. 

Appointment,  chambers,  power  to  ap- 
point in, §  166. 

Appointment,  code  sections  governing, 
§  304. 


GUARDIAN    AND    WARD.     I.  Who    en- 
titled to   act;    appointment;   practice. 

(Continued.) 

Appointment  in  justice's  court.  See  Jus- 
tices' Courts,  XV. 

A]i[)ointm('nt  of  guardian  ad  litem.  See 
(iiiardiiin  ad  Litem. 

Chambers,  power  to  grant  special  let- 
ters at,  §  166. 

Insane  person,  appointment  of  guardian 
for.     See  Insane  Persons. 

Juror,  relation  of  guardian  and  ward  as 
aflFccting  qualification  of,  §  602. 

Eeforee,  relation  of  guardian  and  ward 
as  affecting  qualification  of,  §  641. 

II.    Letters  of  guardianship. 

Appeal  lies  from  orders  granting  or  re- 
fusing, §  963. 

Ajipeal  lies  from  orders  revoking  or  re- 
fusing to  revoke,  §  963. 

III.     Qualification;  bond. 
Bond,    may   be    approved    at     chambers, 

§  166. 
Bond,    official,    sufficient  on    appeal   by 

guardian,  §  965. 

IV.  Powers,  duties,  and  liabilities;  ac- 
tions. 

Appearance  by,  in  justice's  court,  for  in- 
fant or  incompetent,  §  843. 

Code  sections  governing  powers  and 
duties,  §  304. 

Compromise  of  •case,  authority  as  to, 
§372. 

Death  of  ward,  guardian  may  sue,  §  376. 

Death  of  ward,  who  may  be  sued,  §  376. 

Guardians  ad  litem.  See  Guardians  ad 
Litem. 

Infant  to  appear  by,  or  by  guardian  ad 
litem,  §  372. 

Injury  to  ward,  guardian  may  sue  for, 
§  376. 

Injury  to  ward,  who  may  be  sued,  §  376. 

Insane  person  appears  by  general  guar- 
dian or  guardian  ad  litem,  §  372. 

Powers  and  duties,  code  sections  govern- 
ing, §  304. 

Proxies,  guardian  may  give,  §  321b. 

Relationship  of  guardian  disqualifies  ref- 
eree, §  641. 

Seduction  of  ward,  guardian  may  sue 
for,  §  375. 

Service   of   summons   on  guardian,  §  411. 

Share  of  infant  on  partition,  payment  of, 
to  guardian, §§  793,  794. 

Share  of  insane  person  on  partition,  pay- 
ment of,  to  guardian,  §  794. 

Shares  of  stock  of  infant  or  insane  per- 
son, guardian  to  represent,  §  313. 

Waste,  liability  for,  §  732. 

V.     Partition  of  property. 
Partition,  consent  by  guardian    to    and 

execution  of  release  by,  §  795. 
Partition,  guardian  may  assent  to,  §  795. 


iiliv 


INDEX.       VOL.    I. 


1-1059. 


GUARDIAN  AND  WARD.  V.  Partition 
of  property.     (Continued.) 

Partition  of  property,  guardian  cannot 
purchase,  except  for  ward,  §  783. 

Partition  of  property,  release  by  guar- 
dian, §  795. 

Partition,  securities  for  purchase  money 
may  be  taken  in  name  of  guardian, 
§777. 

Partition,  share  of  infant,  payment  of 
to  guardian,  §§  793,  794. 

VI.     Accounting. 

Appealability  of  order  relating  to,  §  963. 

VII.     Appeals. 

Appeal  by  guardian,  official  bond  suffi- 
cient, §  965. 

Appeal  from  order  respecting  letters, 
time   for,  §  939. 

Appeal  lies  from  order  relating  to,  §  963. 

Order  and  judgments  relating  to  guar- 
dianship appealable,  §  963. 

Eeversal  of  order  appointing  guardian, 
validity  of  acts,  §  966. 

VIII.     Termination  of  authority. 
Chambers,    power    of    judge    to    suspend 
guardian  at,  §  166. 

IX.     Miscellaneous  provisions. 

Juror,   guardian  or   ward   disqualified   to 

act  as,  §  602. 
Referee,    relationship    of    guardian    and 

ward  disqualifications,  §  641. 

H 

HABEAS  CORPUS. 

Superior  court   or  judge  may  issue,  §  76. 
Supreme  court  may  issue,  §  51. 
Supreme  judge,  issuance  of,  by,  §  54. 

HASTINGS  LAW  SCHOOL. 

Diploma  from,  effect  of,  §  2S0a. 

HEARING.     See  Trial. 

New  trial,  on  motion  for,  §  660.  See 
New  Trial. 

Particular  proceeding,  in.  See  particu- 
lar title. 

HEARSAY.     See  Evidence. 

HEIRS.     See  Estates  of  Decedents. 
May  sue  for  wrongful  death,  §  377. 

HIGHWAY. 

Cutting  trees  or  timber  to  repair,  dam- 
ages, §  734. 
Injuring  trees,  etc.,  in,  §§  733,  734. 
Partition    proceedings    affecting,  §  764. 

HOLIDAYS. 

Acts  not  to  be  done  on,  §  13. 

Acts  which  may  be  done  on,  §§  10,  134. 

Adjournment  to  non-judicial  day,  pro- 
ceedings in  case,  §  1^5. 

Computation  of  time,  if  last  day  falls  on 
holiday,  it  is  excluded,  §  12. 


HOLIDAYS.     (Continued.) 

Courts  may  perform  what  acts  on,  §  134. 

Courts  not  open  on,  except  when,  §  134. 

Holding  court  on  day  following,  §  135. 

Injunctions,  writs  of,  may  be  issued  and 
served   on,  §  76. 

Judicial  days,  §  133. 

Holiday  falling  on  next  day  celebrated, 
§§  10,  11. 

Non-judicial  days,  §  134. 

Performance  on  day  following,  §  13. 

Prohibition,  writ  of,  may  be  issued  and 
served  on, §  76. 

Saturdaj'-  afternoon   a  half-holiday,  §  10. 

Saturday  afternoon,  what  acts  may  be 
done  on,  §  10. 

Saturday  afternoon,  process  may  be 
issued,  filed  or  served  on,  §  10. 

Saturday  afternoon,  written  instruments 
may  be  executed,  served  or  filed  on, 
§  10. 

School  holidays  enumerated,  §  10. 

School,  power  of  school  boards  to  de- 
clare, §  10. 

Schools,  exercises  to  be  held  on  holi- 
days by,  §  10. 

What  days  are,  §  10. 

HOMESTEAD. 

Appraisers'  report,  appeal  from,  §  963. 
Association,     exemption     of     shares     in, 
§  690. 

HOSPITALS. 

Limitations  in  actions  by  state  for  hos- 
pital dues,  §  345. 

Officer  or  attendant  exempt  from  jury 
duty,  §  200. 

HOUSEHOLDER. 

Exemption  of  property,  §  690. 

HUSBAND  AND  WIFE.  See  Divorce; 
Marriage. 

Action  by  for  damages  to  wife,  conse- 
quential damages  to  husband  recover- 
able without  separate  statement,  §  427. 

Married  women  as  parties.  See  Married 
Women. 

Married  woman  may  sue  or  be  sued  alone 
when,  §  370. 

Married   women.     See    Married    Women. 

Wife  as  party,  husband,  when  to  be 
joined,  §  370. 

Wife  may  defend  action  against  herself 
and  husband,  §  371. 


ILLNESS.     See  Sickness. 

IMPEACHMENT. 

Court  of,  impeachment  to  be  presented  by 

assembly,  §  37. 
Court  of,  is  court  of  record,  §  34. 
Court  of,  is  the  senate,  §  36. 
Court  of,  jurisdiction  of,  §  37. 
Court   of,   officers   of  senate   are   officers 

of.  §  38. 
Court   of,   procedure   provided    in    Penal 

Code,  §  39. 


INDEX.      VOL.    I.       §§  1-1059. 


xJv 


IMPEACHRIENT.     (Continued.) 

Court   of,   senate,   quorum   of,  what  con- 
stitutes, §  36. 
Court  of,  senators  to  be  upon  oath,  §  36. 

IMPRISONMENT.     See    Arrest. 

Bail  arc  exonerated  bv  imprisonment  of 

defendant,  §  4&1. 
Civil   aetions,   in.     See  Arrest   and  Bail. 
Debtor  in  supplementary  proceedings,  of, 

§  715. 
Judgment  debtor,  of,  §  6S2. 
Limitations  of  actions,  how  affected  by, 

§  352. 
Statute  of  limitations,  effect  on,  §  353. 

IMPHOVEMENT  BONDS. 

Sale  of  cannot  be  enjoined  by  taxpayer, 
§  5 26 a. 

IMPROVEMENTS. 

Apportionment    of,    in    partitions,  §§  763, 

764. 
Ejectment,  as  set-off  in,  §  741. 
Partition    of   site    of    town    or    city,   in, 

§  763.  ^         ' 

INADVERTENCE. 

Relief   from,   by   amendment,  §  473. 

INDEMNITY. 

Judgment  against  principal,  conclusive 
against  surety,  when,  §  1055. 

Judgment  against  sheriff,  conclusiveness 
against    sureties,  §  1055. 

Judgment,  entry  of  against  surety  on  five 
days'  notice,  §  1055. 

Sheriff,  indemnity  to,  on  claim  of  prop- 
erty, §  689. 

INDEX. 

To  justice's  docket,  §  913. 

INDICTMENTS. 

Appellate  jurisdiction  in  cases  of,  §  52. 

INDORSEMENT. 

Complaint,  on  by  clerk,  §  406. 

INFANT,  See  Guardian  ad  litem;  Parent 
and  Child. 

Adverse  possession  against,  §  328. 

Appearance  of,  in  justice's  court,  by 
guardian, §  843. 

Appears  by  general  guardian  or  guar- 
dian ad  litem,  §  372. 

Guardian  ad  litem  for,  §§  372,  373.  See 
Guardian   ad  Litem. 

Guardian  ad  litem  in  justice's  court,  luw 
and  when  appointed,  §  843. 

Guardian  ad  litem,  when  appointed, 
§372. 

Juvenile  offenders.  See  Probation  Offi- 
cers. 

Limitations  of  action,  effect  of  infarcv, 
§§  328,  352.     See  Limitation  of  Action. 

Partition,  sale,  guardian  not  to  be  inter- 
ested in,  except  for  infant,  §  783. 

Partition  sale  on  credit,  security  in  name 
of  guardians,  §  777. 

Partition,  sale,  payment  of  proeeedi  of, 
to  guardian,  §  793. 


INFANT.     (Continued.) 

i'artition,    unequal,    compenpntion,  §  702. 

Party,  as.     See  Guardian  ad  Litem. 

Probationarv  treatment  of  juvenile  of- 
fenders, §"131. 

Service  of  summons  on,  §  411. 

Wrongful  deatii  of  or  injury  to,  who 
may  sue  for,  §  376. 

Wrongful  death  of,  who  liable  for,  §  370. 

INFORMATION, 

In   action  for  usurpation   of  oflice,  §  803. 

INFORMATION    AND   BELIEF, 

Denial  of  allegation  on,  §  437, 

INJUNCTION. 

Aflidavits  or  verified  complaint,  may  be 
issued  on,  §  527. 

Affidavits,  service  of,  §  527. 

Affidavits,  what  to  show,  §  527. 

Answer,  after,  must  be  on  notice  or  order 
to  show  cause,  §  528. 

Appeal  from  order  respecting,  time  for, 
§  939. 

Appeal  lies  from  what  orders  respecting, 
§963. 

Bonds  for  public  improvements,  issuance 
or  sale  of  cannot   be  enjoined,  §  526a. 

Conclusiveness  of  judgment  against  sure- 
ties on  bond,  §  532. 

Corporation  to  suspend  business  of,  ne- 
cessity of  notice,  §  531. 

Corporation,  to  suspend  business  of, 
when  state  a  party,  §  531. 

Court  commissioner  may  not  grant,  §  259. 

Court  in  which  action  brought  may 
grant,  §  525. 

Defined,  §  525. 

Definition  of  injury  to  person,  §  29. 

Definition  of  injury  to  property,  §  28. 

Denied  in  what  cases,  §  526. 

Dissolution,  §§532,  533. 

Dissolution,    affidavits,  §  532. 

Dissolution,  evidence,  §  532, 

Dissolution,  notice,  §  532. 

Dissolution,  procedure,  §  532. 

Dissolution  where  water  rights  con- 
cerned, damages  and  counsel  fees, 
§  532. 

Dissolution,  where  water  rights  involved, 
on  giving  bond,  §  532. 

Enforceable  as  order  of  court  where 
granted  by  judge,  §  525. 

Execution,  enjoining  injury  after  sale 
and   before  conveyance,  §  745, 

Execution,  enjoining,  time  for  issuance 
in  case  of, §  6S1. 

Foreclosure,  injury  to  property  enjoined 
pending,  §  745. 

Funds,  illegal  expenditure  of  city  ox 
county,  restraining,  §  526a, 

Granted  by  judge,  enforceable  as  order 
of  court,  §  523. 

Granted  in  what  cases,  §  526. 

Grounds  for  granting,  §  526. 

Hearing,  §  530, 

Ilolidavs,  may  be  issued  and  served  on. 
§76. 


xlvi 


INDEX.      VOL.    I. 


1-1059. 


INJUNCTION.      (Continued.) 

Irreparable   injury,   restraining,  §  326. 

.Tudge  may  grant,  §  525. 

Judge,  order  by  judge  enforced  as  court 

order,  §  525. 
Judgment,    where    waters    involved,    in- 
cludes   damages    and    attornevs'    fees, 

§  532. 
Kinds  of,  §  27. 

Limitation  of  action,  effect  on,  §  356. 
May  be  issued  or  served  any  day,  §  134. 
Modifying,  §§  532,    533.     See    post,    this 

subject. 
Modifying,  notice  of,  §  532. 
Notice,    necessity   of,   before     enjoining 

business  of  corporation,  §  531. 
Notice  of  motion  to  modify  or  dissolve, 

§532. 
Notice,     where     granted     after     answer, 

§528. 
Nuisance,  against,  §  731. 
OflEicers.  action  to  restrain  illegal  expen- 
diture or  waste  hj,  §  526a. 
Order    to    show    cause,    procedure,  §  530. 
Order   to   show    cause,    restraining  order 

pending  hearing,  §  530. 
Order  to  show  cause,  when  issued.  §  529. 
Order  to  show  cause,  where  granted  after 

answer,  §  528. 
Preliminary,  affidavits   of  parties,  filing 

and  serving,  §  527. 
Preliminary,    granted    on    what    papers, 

§  527. 
Preliminary,  granted   on   what   showing, 

§  527. 
Preliminary,      granting      of,      procedure, 

§  527. 
Preliminary,     hearing,     precedence     of, 

§  527. 
Preliminary,  notice  of,  §  527. 
Preliminary,  time  of  granting,  §  527. 
Preliminary,  trial,  precedence  of,  §  527. 
Preliminary,   trial  to  be  set  for  earliest 

day  possible,  §  527. 
Eestraining     defendant     until     decision, 

§528. 
Eestraining  order,  when  issued,  §  530. 
Sunday,  writ  may  be  served  on,  §  76. 
Taxpayer,   action  by,   to  restrain   illegal 

expenditure  by  officer,  §  526a. 
Taxpayer,   action   by,   to   restrain   waste 

by  officer,  §  526a. 
Taxpayer  cannot  enjoin  issuance  or  sale 

of  bonds  by  officer,  §  526a. 
Temporary,  disqualified  judge  may  issue 

pending  appointment  of  and  action  by 

another  judge,  §  170. 
Temporary  restraining  order,  cause  to  be 

set   for  trial   at   earliest   possible   date 

and  have  precedence,  §  527. 
Temporary  restraining  order,  dissolution 

where  applicant  not  ready  to  proceed  or 

fails  to  serve  papers.  §  527. 
Temporary    restraining    order,     continu- 
ance of  hearing,  right  of  defendant  to, 

§527. 


INJUNCTION.      (Continued.) 

Temporary     restraining     order     granted 

without    notice,    time    of    return    of, 

§527. 
Temporary     restraining     order,     hearing 

given   precedence   over   other  matters, 

§527. 
Temporary  restraining  order,  hearing  on, 

duty  to  proceed  and  dismissal,  §  527. 
Temporary     restraining    order,    hearing, 

party  obtaining  mnst  be  ready  to  pro- 
ceed, §  527. 
Temporary   restraining   order,   notice    of 

to  be  given, §  527. 
Temporary      restraining     order,     notice, 

when  may  be  granted  without,  §  527. 
Temporary  restraining  order,  procedure, 

§  527. 
Temporary  restraining  order,  service  of 

complaint,    affidavits   and    points    and 

authorities,  §  527. 
Undertaking,  exception  to  sureties,  §  529. 
Undertaking,        judgment         conclusive 

against  sureties  in  suit  on  bond,  §  532. 
Undertaking,    justification     of     sureties, 

§  529. 
Undertaking,    not    required    of    married 

woman  in  suit  against  husband,  §  529. 
Undertaking,     not     required     of     state, 

county,  or  city,  §  529. 
Undertaking  required,  §  529. 
Vacating  or  modifying,  §  533. 
Vacating  or  modifying,  affidavit,  §  532. 
Vacating  or  modifying,  evidence,  §  532. 
Vacating  or  modifying,  in  cases  involv- 
ing  waters,   damages,  attorneys'   fees, 

§532. 
Vacating  or  modifying,  in  cases  involving 

water  rights  on  giving  bond,  §  532. 
Vacating  or  modifying,  notice   of,  §  532. 
Vacating  or  modifying,  procedure,  §  532. 
Waste,  §§  526,  745. 
Waste   after   execution   sale   and   before 

conveyance,  §  745. 
Waste,  enjoining,  §  526. 
Waste   of   public    money   or   property'  by 

officer,  right  to  enjoin,  §  526a. 
Waste  pending  foreclosure  of  mortgage, 

§745. 
Waste,    pending    time    to    redeem,    en- 
joined, §  706. 
Waters,  dissolving  or  modifying,  on  giv- 
ing bond,  §  532. 
Waters,    diversion,    increase    or    diminu- 
tion,  not    enjoined     on     giving     bond, 

when,  §  530. 
Waters,    enjoining    diversion    or    use    of, 

refusing    injunction,  on    giving    b'^nd, 

§  530. 
Waters,  injunction  against   diversion   or 

use  of,  notice  of  application  for,  §  530. 
Waters,  suit  involving,  attorney's  fee  on 

vacating  or  dissolving,  §  532. 
What  is,  §  525. 
When  denied,  §  526. 
When   diversion   of  waters  not   enjoined 

on  giving  bond,  §  530. 


INDEX.      VOL.    I.       §§  1-1059. 


xlvii 


INJUNCTION.      (Continued.) 
When  may  be  granted,  §  526. 
Who  may  grant,  §  525. 

INJURIES. 

Child,  to,  father,  motlior  or  guanlian 
may  sue  for,  §  376. 

Civil  action  arises  from,  §  25. 

Death,  causing,  §§  376,  377.  See  Wrong- 
ful Death. 

Issues  of  fact,  how  tried,  §  592. 

.Toinder  of  claims  for,  §  427. 

Kinds  of,  enumerated,  §  27. 

Liability  for,  after  sale  on  execution, 
§74  6. 

Liability  of  steamers  and  vessels  for, 
§813. 

Liability,  on  eutrv  for  survey  of  land, 
§  742. 

Place  of  trial  in  actions  for,  §§  395,  832. 

To  child,  father,  etc.,  may  sue  for,  §  37G. 

To  person,  defined,  §  29. 

To  property,  defined,  §  28. 

INQUEST. 

Jury  of,  defined,  §  195. 

.Tury  of,  hov?  summoned,  §§  235,  254. 

.Tury  of.     See  Jury. 

^.fanner  of  impaneling  jury  of,  §  254. 

INSANE  ASYLUM. 

Limitations  in  actions  by  state  for  hos- 
pital dues,  §  345. 

INSANE  PERSONS.     See   Guardians. 

Adverse   possession  against,  §  328. 

Appear  by  general  guardian  or  guardian 
ad  litem,  §  372. 

Appearance  by,  in  justice's  court,  by 
guardian, §  843. 

Guardians,  generally.  See  Guardian  and 
Ward. 

Guardian  ad  litem,  appointment  of,  al- 
though there  is  a  general  guardian, 
§372. 

Guardian  ad  litem  for,  how  appointed, 
§  373. 

Guardian  ad  litem  in  justice's  court,  how 
and  when  appointed,  §  843. 

Guardian  ad  litem  to  appear  by,  or  by 
guardian, §  372. 

Guardian  ad  litem,  when  appointed, 
§372. 

Guardian  may  receive  proceeds  of  par- 
tition, §  794. 

Limitation  of  action,  §§  328,  352. 

Partition,  insanity  of  person  pending, 
effect  of,  and  proceedings,  §  763. 

Partition  proceedings,  death  of  party,  ef- 
fect of  and  proceedings  on,  §  763. 

Partition,  payment  of  proceeds  of,  to 
guardian, §  794. 

Service  of  summons  on,  §  411. 

INSANITY.     See  Insane  Persons. 

Effect  of,  on  limitation  of  actions,  §§  328, 
352. 

INSOLVENCY.     See  Bankruptcy. 

Supreme  court,  jurisdiction  of  over,  §§  52, 
76. 


INSPECTION  OF  WRITINGS. 

Contempt   for  disobedience   to  order   re- 
specting, §  1000. 
Copies  of  books,  accounts,  writings,  etc., 

right   to  take,  §  1000. 
Docket  of  judgment  open  for  in^^pection, 

§  673. 
Execution-book     is    open     to    inspection, 

§  683. 
Notice    on    order     to     |)rodui"e     wri'Jii;--. 

§  10(JO. 
Presumjttion   on  refusal   to  comply   with 

order  for,  §  1000. 
Refusal    of    inspection,   its    effect,  §§  449, 

1000. 
When   may   be   demanded,  §  1000. 
Written   instrument,   demand  for,  §  4  49. 

INSTRUCTIONS. 

Cost  of  taking  down  and  transcribing, 
chargeable  against  county,  §  274a. 

Courts  open  any  day  to  give,  §  134. 

Erroneous,  disregarded,  unless  substan- 
tial rights  affected,  §  475. 

Exception  to,  giving  of,  refusing  or  mod- 
ifying instruction  deemed  excepted 
to,  §  647. 

Further,  after  jury    retired,  §  614. 

fJeneral  nature  and  requisites  of,  §  60S. 

Holidays,  may  be  given  on,  §  134. 

Law,  court  may  state  such  matters  of 
law  as  it  deems  necessary,  §  608. 

Mav  be  taken  down  and  transcribed, 
§*^274a. 

Modifying,  giving,  or  refusing  to  give, 
deemed  excepted  to,  §  647. 

New  trial,  for  disregard  or  misappre- 
hension of,  §  662. 

Special,  duty  of  court  respecting,  §  609. 

Testimony,  court  stating,  to  inform  jury 
thev  are  exclusive  judges  of  facts, 
§  608. 

Written  statement  of  points  of  law, 
court  to  furnish,  when,  §  60S. 

Written    statement     of    points     of     law. 

Court  to  sign,  when,  §  608. 

INSTRUMENTS.  See  Construction;  Con- 
tracts. 

Demand  for  inspection,  §  449. 

Pleaded  how,  in  justice's  court,  §§  886, 
887. 

Pleading,  genuineness  of,  how  admitted 
or  controverted,  §§  447-449. 

INSURANCE. 

Exemption  of  moneys  arising  from  life 

insurance,  §  690. 
Insurers    in    separate    policies    may     be 

joined,  §  383. 
Several     judgments,   where   insurers     on 

different  policies  joined,  §  383. 

INSURANCE  COMMISSIONER. 

Corporation  formed  to  act  as  surety,  ex- 
amination into,  by  insurance  commis- 
sioner, and  duties  of,  §  1056. 


xlviii 


INDEX.      VOL.    I.       §§  1-1059. 


INSURANCE  COMPANIES. 

Answer  claiming  exemption  from  liabil- 
ity, what  to  state,  §  437a. 

INSURRECTION. 

Change  of  place  of  holding  court,  on  ac- 
count of,  §  142. 

INTEREST. 

Disbursements  in  partition  proceedings, 

on,  §  801. 
Disqualifying  judge  or  justice,  §  170. 
Foreclosure,  debt  falling  due  at  different 

times,  §  728. 
Judgment,  insertion  of,  in,  §  1035. 
Judgment,  on,  §§  682,  1035. 
Rebate,  on  foreclosure,  §  728. 
Receiver,    funds    in    hands    of,    may    be 

invested  upon  interest,  §  569. 
Redemptioner     must     pay     what,  §§  702, 

703. 
Referee,  interest  disqualifying,  §  641. 

INTERLOCUTORY  JUDGMENTS. 

Appeal,  time  for,  §  939. 
Appealability  of,  §  963. 
Order   of   decision   deemed    excepted   to, 
§647. 

INTERPLEADER. 

When  and  how  maintained,  §  380. 

INTERVENTION. 

Answer  to,  §  387. 

Demurrer  to,  §  387. 

Services    of,    on    parties    and    attorneys, 

§387. 
Time  to  answer  or  demur,  §  387. 
"When  and  how  effected,  §  387. 
Who  may  intervene,  §  387. 

INVENTORY, 

Of  attached  property,  §  546, 

INVESTMENTS, 

Receiver,  funds  in  hands  of  may  be  in- 
vested upon  interest,  §  569. 

IRREGULARITY. 

Of    proceedings,    ground    for    new    trial, 

§657. 
Effect  of,  in  proceedings  on  judicial  sale, 

§708. 

IRRELEVANT  MATTER. 

May  be  stricken  out,  §  453. 

IRRIGATION. 

Injunction  to  prevent  diversion,  refusal 
on  giving  bonds,  §  532, 

ISSUES, 

Bringing  to  trial,  §  594. 

By  whom  tried,  and  order  of  trial,  §  592. 

Calendar,  §  593. 

Defined,  §  588. 

Fact,  issues,  of  how  tried,  §  592. 

Fact,  jury,  how  waived,  §  631. 

Fact,  notice  of  hearing,  §  594, 

Fact,  of,  how  arises,  §  590. 

Fact,  of,  reference,  §  592. 

Fact,  of,  trial  of,  by  court,  §  592. 


ISSUES.      (Continued.) 

Fact,  tried  by  jury,  generally,  §  592. 
General  denial  puts  in  issue  what,  §  437. 
In  proceedings  against  joint  debtor  after 

judgment,  how  tried,  §  994. 
Justices'  courts,  in.     See  Justices'  Courts, 

XIV. 
Kinds  of,  §  588. 

Law,  issue  of,  to  be  first  tried,  §  592. 
Law,  of,  how  tried,  §  591. 
Law,   of,   how  tried    in    justice's    court. 

§881. 
Law,  of,  proceedings  after  determination 

of,  §  636. 
Law,  raised  by  demurrer,  §  589. 
Reference  of,  when  ordered,  §  638. 
Special,  not  made  by  pleading,  how  tried, 

§309. 
When  arise,  §  588. 

ITEMS. 

Account,  of,  need  not  be  pleaded,  §  454. 
See  Account. 


JOINDER. 

Misjoinder,  demurrer  for,  §  430. 

Of    causes     of    action,   what   permitted, 

§427. 
Parties,  of.     See  Parties. 
What  actions  may  be  joined,  §  427. 

JOINT  AUTHORITY.     See  Majority. 
Majority  may  act,  §  15, 

JOINT  CONTRACT, 

Action  on,  in  justice's  court,  service  out- 
side of  county,  §  848. 

Appearance,  by  other,  where  one  defend- 
ant appears,  §  406. 

Service  of  summons  or  appearance,  where 
one  or  more  appear,  §  406, 

JOINT  DEBTORS. 

Appearance  by  other,  where  one  or  more 
appear,  §  406. 

Contribution,  §  709. 

Judgment  in  proceedings  after  judgment 
against  a  joint  debtor,  r.ot  to  exceed 
amount  remaining  unsatisfied,  §  994. 

New  complaint  need  not  be  filed  in  pro- 
ceedings against,  after  judgment, 
§990. 

Not  summoned  in  original  action  may  be 
summoned  after  judgment,  §  9S9. 

Proceedings  against,  after  judgment, 
amendment    of   pleadings.  §  993. 

Proceedings  against,  after  judgment,  an- 
swer, §  992. 

Proceedings  against,  after  judgmeut,  de- 
fenses, §992. 

Proceedings  against,  after  judgment,  is- 
sue, how  tried,  §  994. 

Proceedings  against,  after  judgment, 
new  complaint  need  not  be  filed.  §  990. 

Proceedings  against  after  judgment, 
verdict  not  to  exceed  amount  unsatis- 
fied, §  994. 


INDEX.      VOL.    I.       §§  1-1059. 


zlix 


JOINT  DEBTORS.     (Continued.) 

Proceedings     against,     after     judgment, 

what  constitutes  the  pleadings,  §  993. 
Several,   part   served   may   be   proceeded 

against,  §  414. 
Summons,  service  and  return  of,  §  990. 
Summons    to,    after   judgment,    affidavit 

for,  §  991. 
Summons    to,    after   judgment,    what    to 

contain, §  990. 
Those  served  may  be  proceeded  against, 

§414. 

JOINT-STOCK  COMPANIES. 

Non-resident,  service  of  summons  on, 
§411. 

JOINT  TENANTS,  See  Co-tenants;  Par- 
tition. 

Any  number  may  sue  or  defend  for  all, 
§§  381,  384. 

Parties  in  suits  concerning,  §§  381,  384. 

Partition,  may  sue  for,  §  752. 

Waste,  liability  for,  §  732. 

JUDGES.  See  Courts;  Justices  of  the 
Peace;  Probate  Court;  Superior  Court; 
Superior  Judge;  Supreme  Court  Jus- 
tice. 

Absence  of,  adjournment,  §  139. 

Absence  of,  proceedings  in,  §  139. 

Acknowledgments,  may  take,  §  179. 

Affidavit  of  prejudice,  proceedings  on, 
§170. 

Affidavits,  may  take,  §  179. 

Attorney  acting  as  judge  pro  tempore, 
oath,  authority,  and  powers  of,  §  72. 

Attorney,  agent  or  solicitor,  not  to  act 
as,  §  171. 

Attorney  may  be  selected  to  act  as  judge 
pro  tempore,  §  72. 

Bill  of  exceptions.     See  Exceptions. 

Chambers,  powers  at,  §§  165,  166.  See 
Chambers. 

Change  of,  for  bias,  etc.,  procedure,  §  170. 
See  Place  of  Trial. 

Changing  place  of  holding  court,  §§  142, 
143. 

Decision,  meaning  of,  §  1033. 

Depositions,  may  take,  §  179. 

Directing  sheriff  to  provide  suitable 
rooms,  §  144. 

Disqualification,  affidavit  of,  proceedings 
on,  §  170. 

Disqualification,  changing  place  of  trial 
for,  §§  397,  398. 

Disqualification,  disqualified  judge  may 
issue  temporary  injunction  pending  ap- 
pointment of  new  judge,  §  170. 

Disqualification  of,  change  of  trial  for, 
procedure.     See  Place  of  Trial. 

Disqualification  of,  designation  of  an- 
other judge  to  act,  §  170. 

Disqualification  of  judge,  proceedings 
on,  §  170. 

Disqualification  to  practice  law,  §  171. 

Disqualification  to  sit  or  act,  what  mat- 
ters amount  to,  §  170. 

Disqualification,  waiver  of,  §  170. 


JUDGES.     (Continued.) 

Election  of  superior  judges,  §  65. 

Election  of  supreme  justices,  §  40. 

Exemi)tion  of  property  of,  §  690. 

Incidental  powers  and  duties  of  courts, 
§§ 128-130. 

Law,  not  to  practice,  §  171. 

Means  to  carry  jurisdiction  into  effect, 
§  187. 

Opinions.     See  Opinions. 

Partner  practicing  law,  not  to  have, 
§  172. 

Powers  of,  at  chambers,  §§  165,  166. 

Powers  of  judicial  officers  in  conduct  of 
proceedings,  §  177. 

Powers  of,  out  of  court,  §  176. 

Powers  may  be  enforced  by  contempt 
proceedings,  §  178. 

Pro  tempore,  causes  may  be  tried  before, 
§72. 

Pro  tempore,  qualifications  and  appoint- 
ment of,  §  72. 

Pro  tempore,  proceedings  before,  effect 
of,  §  72. 

Pro  tempore  oath  of,  §  72. 

Eesidence  of  superior  judges,  §  158. 

Rules,  power  to  make,  §  129. 

Rules,  when  take  effect,  §  129. 

Subsequent  applications  for  orders  re- 
fused, when  prohibited,  §  1S2. 

Superior  court.     See  Superior  Court. 

Vacancy  in  office  does  not  affect  proceed- 
ings, §  184. 

JUDGMENT.  See  Execution;  Judgment 
Roll;  Probate  Court. 

Acknowledgment  of  satisfaction,  any 
judge  or  justice  may  take,  §  179. 

Actions  on,  how  pleaded,  §  456. 

Administrator  or  executor,  against.  See 
Executors  and  Administrators. 

Adverse  claim,  determining,  §§  739  et  seq. 
See  Quieting  Title. 

Adverse  possession  under,  what  consti- 
tutes, §§  322,  323. 

Affirmative  relief  to  defendant,  §  666. 

Against  one  party,  may  be,  and  action 
proceed  as  to  others,  §  579. 

Answer,  absence  of,  what  relief  granted 
plaintiff,  §  580. 

Appeal,  costs  on,  when  judgment  modi- 
fied, §  1027. 

Appeal  from  final  judgment,  what  pa- 
pers to  be  used  on, §  950. 

Appeal  from  interlocutory,  time  for, 
'       §  939. 

Appeal  from.     See  Appeals. 

Appeal  from  orders  after  final,  §  963. 

Appeal  from,  time  f or,  §  939. 

Appeal  may  be  taken  from  what,  §  963. 

Appeal,  reversal  of,  not  decreed  except 
for  substantial  error,  §  475. 

Appeal  to  superior  court,  force  and  effect 
of  judgment  on,  §  980. 

Appeal  to  superior  court.  See  Appeals, 
XIIT. 

Appealability  of  interlocutory  judg- 
ments, §  963. 


INDEX.      VOL.    I.       §§  1-1059. 


JUDGMENT.      (Continued.) 

Arrest  of  debtor,  §§  682,  684. 

Associates  in  business,  against,  effect  of, 
§388. 

Attachment,  in,  how  satisfied,  §  550. 

Attorney's  authority  to  acknowledge  sat- 
isfaction of,  §  283. 

Attorney,  on  accusation  against.  See 
Attorneys,  VI. 

Barred  by  limitation,  execution  on,  §  685. 

Bill  of  exceptions,  settling  after,  §  651. 

Book,  decrees  to  be  entered  in,  §  658. 

Book  to  be  kept  by  clerk,  §  668. 

Claim  and  delivery,  in.  See  Claim  and 
Delivery. 

Clerk,  duty  to  enter  judgment,  §  664. 

Conclusive  as  to  whom,  in  partition, 
§  766. 

Conclusiveness  of.     See  Kes  Adjudicata. 

Contribution  among  debtors,  §  709. 

Copy  of,  as  part  of  judgment  roll,  §  670. 

Costs,  insertion  of,  in,  §  1035. 

Counterclaim  exceeding  plaintiff's  de- 
mands, judgment,  §  666. 

Counterclaim,  judgment  where  affirma- 
tive relief  demanded,  §  666, 

Death  of  party  before  judgment,  but 
after  decision,  §  669. 

Death  of  party  before  judgment,  but 
after  decision,  not  a  lien,  §  669. 

Death  of  party,  when  execution  may  is- 
sue after,  §  686. 

Decision,  exceptions  to,  how  presented, 
settled,  or  allowed,  §  650. 

Decision  from  which  appeal  may  be 
taken  deemed  excepted  to,  §  647. 

Decision,  meaning  of,  §  1033. 

Decision  means  signing  and  filing  of 
findings  of  fact  and  conclusions  of  law, 
§  1033. 

Decision  must  be  written,  §  632. 

Decision  to  be  filed  within  thirty  days 
after  submission,  §  632. 

Decision.     See  Decision. 

Deemed  excepted  to,  §  647. 

Default.     See  Default. 

Defined,  §  577. 

Demurrer,  on,  proceedings  after,  §  636. 

Dismissal.     See  Dismissal. 

Docket,  how  kept,  §  672. 

Docket  is  what,  §  672. 

Docket,  opeu  for  inspection,  §  673. 

Docket,  what  to  contain,  §  672. 

Docketing,  §  671. 

Dormant,  execution  on,  §  685. 

Election  contest.     See  Elections. 

Enforcing,  manner  of,  §  684. 

Entry  of,  §  671. 

Entry  of,  duty  of  clerk,  §  664. 

Entry  of,  judgment  ineffectual  until, 
§  664. 

Entry  of  judgment  rendered  on  special 
verdict,  §  628. 

Entry  of  judgment  upon  decision,  §  633. 

Entry  of  judgment  upon  verdict,  time  of, 
§664. 

Excepted  to,  final  decision  deemed,  §  647. 

Execution  on,  §  682. 


JUDGMENT.      (Continued.) 

Execution  on,  after  five  years,  §  685. 

Execution  on  dormant,  §  685. 

Execution  on,  power  of  court  to  stav, 
§  681a. 

Execution.     See  Execution. 

Expires  when,  §§  671,  674,  681,  685. 

Extra  sessions  of  superior  court,  of,  ef- 
fect of,  §  67b. 

Filing  transcript  with  recorder  of  an- 
other county,  §  674. 

Findings,  conclusions  of  law  not  sup- 
ported by.  See  Vacation,  post,  this 
title. 

Findings,  judgment  on,  §  633. 

Findings  of  fact  and  conclusions  of  law, 
to  be  stated  separately,  §  633. 

Findings.     See  Findings. 

Foreign,  effect  of.     See  Ees  Adjudicata. 

How  carried  into  effect.     See  Execution. 

Interest  included  in,  §  1035. 

Interest,  insertion  of,  in,  §  1035. 

Interest  on, §§  682,  1035. 

Interlocutory,  appeal  lies  from,  §  963. 

Interlocutory,  decision  deemed  excepted 
to,  §  647. 

Interlocutory  judgment,  appeal,  time  to 
take,  §  939. 

Joint  debtors,  proceedings  against,  after 
judgment,  §§  989-994. 

Joint  debtors,  those  served  may  be  pro- 
ceeded against,  §  414. 

Joint  debtors.     See  Joint  Debtors. 

Judgment-book,  clerk  to  keep,  §  670. 

Judgment  roll,  what  papers  constitute, 
§  670. 

.Judgment  roll.     See  Judgment  roll. 

Jurisdiction,  burden  of  proving  where 
judgment  pleaded,  §  456. 

Justices'  courts,  in.  See  Justices'  Courts, 
XX. 

Lien  continues  how  long  in  another 
county,  §  674. 

Lien,  duration  of,  §  671. 

Lien,  none,  on  death  before  judgment 
and  after  decision,  §  669. 

Lien  of,  in  another  county,  when  tran- 
script filed  there,  §  674. 

Lien  on  estate  of  decedent,  when  not, 
§669. 

Lien  on  real  property  in  another  county, 
§  674. 

Lien,  stay  on  appeal,  effect  on,  §  671. 

Lien,  when  begins,  §  671. 

Limitation  of  action  on,  §  336. 

Limitation  of  action,  on  reversal  of, 
§  355. 

Limitation  on,  enforcing  after  five  years, 
§  685. 

May  be  against  one  party  and  action 
proceed  as  to  others,  §  579. 

May  be  for  or  against  one  or  more  of 
the  parties,  §  578. 

May  determine  rights  of  part"es  on  each 
side  as  between  themselves,  §  578. 

Merits,  to  be  on,  except  when,  §  582. 

Mistake,  impeaching  foreign  judgment 
for,  §  1915. 


INDEX.      VOL.    I.       §§  1^1059. 


li 


JUDGMENT.      (Continued.) 

Money  or  currency,  contract  payable  in 
specified  kind  of,  §  (567. 

Money  or  currency,  particular  kind  of, 
received  in  fiduciary  capacity,  §  667. 

New  trial.     See  New  Trial. 

Nonsuit,  grounds  for,  §  ,581. 

Nonsuit  may  be  entered  when,  §  581. 

Nonsuit,  §§  581,  582.     8oe  Nonsuit. 

Occupation  of  land  under,  when  adverse, 
§322. 

Officers,  judgment  against,  how  enforced, 
§  710. 

Particular  proceedings.  See  particular 
title. 

Payable  in  kind  of  money  alleged  in 
complaint,  §  667. 

Payable  in  kind  of  money  received  by 
person  in  fiduciary  relation,  §  667. 

Payable  in  kind  of  money  specified  in 
obligation,  §  667. 

Payable  in  specified  kind  of  money,  no- 
tice at  execution  sale,  §  692. 

Pleading,  §  456. 

Pleading,  jurisdictional  facts,  §  456. 

Proceedings  after,  against  joint  debtor 
not  summoned  in  original  action, 
§§  989-994. 

Receiver  to  carry  into  effect,  §  564. 

Receiver,  when  appointed  after,  §  564. 

Referee's  finding,  on,  §  644. 

Referee's  report  in  partition,  judgment 
in.     See  Partition. 

Relief  from,  for  mistake,  inadvertence, 
surprise  etc.,  §  473. 

Relief  from,  when  defendant  not  per- 
sonally served, §  473. 

Relief  that  can  be  awarded  plaintiff, 
§580. 

Remitting  to  superior  court  on  case 
transferred  to  supreme  court,  §  56. 

Remittitur  from   supreme   court,  §  958. 

Rendered  in  cause  appealed  to  superior 
court,  force  of,  §  9S0. 

Replevin,  alternative,  judgment  in,  §  667. 

Replevin,  in.     See  Replevin. 

Res  adjudicata.     See  Res  Adjudicata. 

Review  of.     See  Appeal. 

Reviving  after  five  years,  §  685. 

Reviving  in  favor  of  purchaser  under 
execution, §  708. 

Revivor  of,  when  execution  purchaser 
evicted,  §  708. 

Satisfaction,  attorney  may  acknowledge, 
§283. 

Satisfaction  of,  acknowledgment  or  in- 
dorsement of,  §  675. 

Satisfaction   of  by   attorney,  §  675. 

Satisfaction  of,  by  return  of  execution, 
§675. 

Satisfaction  of,  how  made,  §  675. 

Setting  aside,  in  equity,  §  473. 

Settling  bill  of  exceptions  after,  §  651. 

Special  verdict,  judgment  on,  to  be  en- 
tered, §  628. 

Sureties,    conclusiveness    against,  §  1055. 

Sureties,  entry  of,  against,  on  five  days' 
notice,  §  1055. 


JUDGMENT.     (Continued.) 

Time  for  entering,  when  postponed, 
§  664. 

Time  for  entering,  when  trial  by  jury, 
§664. 

Termination  of  right  pending  action, 
judgment  in  case  of,  §  740. 

Time  for  entry,  §  671. 

Time  to  enter  judgment  on  verdict,  §  664. 

Transcript  filed  in  any  county,  judgment 
becomes  lien  there,  §  674. 

Transferred  cases,  in,  proceedings  after, 
§400. 

Vacated,  judgment  may  be,  and  another 
judgment  entered  when,  §  663. 

Vacation  of,  appeal  from  order  Ijill  of 
exceptions,  how  prepared,  §  663a. 

Vacation,  in  what  cases  superior  court 
may  vacate  its  judgment,  §  i^i^i'A. 

Vacation,  motion  for,  notice  of,  §  663a. 

Vacation,  motion  for,  when  to  be  made, 
§  663a. 

Vacation,  notice  of  intention,  what  to 
state,  §  663a. 

Vacation  of,  grounds  for,  §  663. 

Vacation  of,  motion  for  hearing  and  no- 
tice, §  663a. 

Vacation  of,  notice  of  motion  for,  time 
to  file,  §  663a. 

Vacation  of,  order  granting,  how  re- 
viewed on  appeal,  §  663a. 

Vacation  of  special  verdict,  judgment  on, 
§663. 

Vacation,  relief  from,  time  of  motion 
for,  §  473. 

Verdict,  judgment  on,  when  to  be  en- 
tered, §  664. 

Verdict,  special,  entry  of  judgment  on, 
§  628. 

Verdict,  special,  judgment  on  to  be  en- 
tered, §  628. 

When  defendant  entitled  to  affirmative 
relief,  §  666. 

JUDGMENT-BOOK. 

Decrees  to  be  entered  in,  §  668. 
To  be  kept  by  clerk,  §  668. 

JUDGMENT  BY  DEFAULT.    See  Default. 

JUDGMENT  ROLL. 

A  part  of  record  on  appeal,  §  661. 
Appellant  must  furnish,  §  950. 
Judgment  on  appeal  to  be  attached  to, 

§958. 
Transcript  by  clerk  and  reporter  in  bill 

of  exceptions  is  part  of,  §  953a. 
"What  papers  constitute,  generally,  §  670. 

JUDICIAL  DAYS.     See  Holidays. 

Wliat  are,  and  what  are  not,  §§  133-135. 

JUDICIAL  OFFICER.     See  Judges. 

Acknowledgments    and    affidavits,    may 

take,  §  179. 
Contempts,  may  punish  for.  §  178. 
Enumeration  of  powers,  §  177. 
Exempt  from  jury  duty,  §  200. 
Incidental  powers  and  duties  of,  §§  176- 

179. 


lii 


INDEX.      VOL.    I.       §§  1-1059. 


JUDICIAL  OFFICER.      (Continued.) 
In  general,  §§  156-161. 
Jurisdiction,  means  to  carry  into  effect, 

§  187. 
Partner    practicing    law,    not    to    have, 

§  172. 
Powers   of,   as  to   conduct    of    business, 

§177. 
Powers  of,  out  of  court,  §  176. 
Settlement    of    bill     of    exceptions   by, 

§653. 
Vacancy,  effect  of,  §  184. 

JUDICIAL  REMEDY.     See  Eemedies. 
JUDICIAL  SALE.     See  Execution. 

JURISDICTION.       See    Courts;     Justices' 

Courts,  II. 
Acquired  at  what    stage   of  proceeding, 

§  416. 
Appearance  cures  want  of  service,  §  581. 
Appearance     is     equivalent     to    service, 

§416. 
Authority  of  court  where   no   procedure 

provided,  §  187. 
Concurrent,     of    justices'     and     superior 

courts,  in  what  cases,  §  113. 
Court  of  impeachment,  of,  §  37. 
Demurrer  for  want  of,  §  430. 
Judgment  when  amount  in  excess  of  re- 
mitting excess,  §  894. 
Justice     of     peace,     of.     See     Justices' 

Courts,  II. 
Means  to  carry  into  effect,  §  187. 
Objection  of  want  of,  cannot  be  waived, 

§434. 
Pleading  judgment,  jurisdictional  facts, 

§456. 
Superior  court.     See  Superior  Court. 
Supreme  court.     See  Supreme  Court. 
Transferred  cause,  §  399. 
Waived,  not,  by  failure  to  object,  §  434. 

JUROR.     See  Jury.  • 

Admonition,  on  separation,  §  611. 

Affidavit  of,  misconduct  of  jury,  §  657. 

Attendance  of,  compelling,  by  attach- 
ment, §  238. 

Attendance  of,  how  enforced,  §  238. 

Ballot-box,  §§  215,  219. 

Challenge,  either  party  may,  §  601. 

Challenge  for  cause,  grounds  for,  §  602. 

Challenge,  how  tried,  §  603. 

Challenge  in  justices'  courts,  §  885. 

Challenge  is  to  individual  jurors,  §  601. 

Challenge,  parties  to  join  in,  when,  §  601. 

Challenge,  peremptory,  how  taken,  §  601. 

Challenge,  peremptory,  number  of,  §  601. 

Challenge,  peremptory  or  for  cause,  is, 
§601. 

Challenge,  who  may  be  examined  as  wit- 
ness on, §  613. 

Clerk's  certificate  and  list  of,  to  be  de- 
livered to  sheriff,  §  219. 

Clerk's  certificate  of  drawing,  §  219. 

Clerk  to  call  list  of  jurors  summoned, 
§246. 

Clerk,  when  shall  draw,  §  215. 


JUROR.      (Continued.) 

Competent,  who  are,  §  198. 

Competent,  who  are  not,  §  199. 

Debtor  and  creditor,  relationship  of,  dis- 
qualifies, §  602. 

Deliberation,  may  decide  in  court  or  re- 
tire, §  613. 

Deliberation  of,  how  conducted,  §  613. 

Deliberation  of,  what  papers,  etc.,  may 
or  may  not  take  with,  §  612. 

Deliberation,  three  fourths  can  find  ver- 
dict, §  613. 

Deposit    of    names    in    grand    and    trial 
jury-box,  §  209. 

Disobedience  by,  punishment  of,  §  238. 

Drawing,  and  summoning  forthwith,  how 
and  when  done,  §  226. 

Drawing,    by    clerk,    how   conducted,    §§ 
219,  600. 

Drawing,  by  clerk,  preservation  of  bal- 
lots   drawn,  §  219. 

Drawing,   by  clerk,   rejection   of   names, 
§219. 

Drawing,   clerk's  certificate  of,  §  219. 

Drawing,   clerk   to   draw   in  presence   of 
court,  §  215. 

Drawing,  clerk  to  draw  names  from  box, 
§600. 

Drawing,  clerk  to  preserve  ballots,  §  220. 

Drawing,  clerk,  when  to  draw,  §  215. 

Drawing,    for    courts    of    record,  §§  214- 
220. 

Drawing,  jury,  when  to  be  drawn,  §  214. 

Drawing,  names,  copying  and  certifying, 
§  219. 

Drawing,  names  of  jurors  not  drawn  to 
be  replaced  in  box,  §  220. 

Drawing,  names  to  be  drawn  from  jury- 
box,  §  211. 

Drawing,   order    for,   what    to     specify, 
§  214. 

Drawing,  order  for,  when  made,  §  214. 

Drawing,  proceedings  when  jurors  dead, 
insane,  incompetent,  etc.,  §  219. 

Drawing,  superior  judge  may  direct  jury 
to  be  drawn,  §  241. 

Elisor,     compensation     for     summoning 
jurors,  §  228. 

Elisor,   summoning  of  jurors   by,  §§  226, 
227. 

Excuse  from  service,  grounds  for,  §  201. 

Excuses,  hearing  of,  §  246. 

Exempt  from  jury  duty,  who  are,  §  200. 

Exemption  to  serve  as,  affidavit  of,  §  202. 

Exemption     to     serve    as,   how   claimed, 
§202. 

Fine  for  non-attendance,  §  238. 

Illness  of  juror,  proceedings  on,  §  615. 

Impaneling  jury.     See  Jury. 

Inquest,   how  summoned,  §  235.     See  In- 
quest. 

Insufficient   number    of   jurors,   proceed- 
ings in  case  of,  §§  226,  227. 

Justice's  or  police  court,  for,  how  sum- 
moned, §§  230,   231. 

Justice's  or  police  court,  summoning,  re- 
turn of  officer,  §  232. 

List  of,  by  whom  and  when  made,  §  204. 


INDEX.      VOL.    J.       §§  1-1059. 


liii 


JimOR.     (Continued.) 

List  of,  clerk  to  dispose  of,  how,  §  209. 
List  of,  clerk's  duty  as  to,  §  209. 
List  of,  how  made  and  kept,  §§  205,  206. 
List  of,  number  of  names,  S  206. 
List  of,  to  be  placed  with  county  clerk 
§208. 

Misconduct  of.     See  Jury. 

Names  of  jurors  not  drawn  to  be  placed 
on  list  for  succeeding  year,  §  211. 

Names  of  persons  not  serving  to  be  re- 
placed, §  220. 

Names  to  be  written  on  slips  and  kept 
in  sealed  box,  §  246. 

Oath  of,  §  604. 

Omissions  of  certain  names  from  lists, 
§219. 

Order  for,  clerk,  when  to  draw,  §  215. 

Order  of  judge  for  drawing  jury,  §  214. 

Polling,  §  618. 

Polling,  disagreement  on,  proceedings, 
§618. 

Qualifications  and  exemptions  of,  §§  198- 

202. 
Eeferee,  disqualified  as,  §  641. 
Regular  jurors  to  serve  one  year,  §  210. 
Regular  jurors,  who  are,  §  210. 
Selecting    and    returning    for    courts    of 

record,  §§  204-211. 
Selection  of,  §  204. 
Selection  of,  how  made,  §  205. 
Selection  of,  in  proportion  to  population, 

§206. 
Selection  of,  lists  to  contain  how  many 

names,  §  206. 
Selection  of,  who  may  be  selected,  §  205. 
Selection  of,  who  to  make,  §  204. 
Separation,  §§  611,  613. 
Service   as   a  juror  previously  as  a   dis- 
qualification, §  602. 
Sheriff,  list  to  be  given  to,  for  service, 

§219. 
Sheriff,  list  to  summon  how,  §  225. 
Sheriff  to  summon,  return  of  list,  §  225. 
Sick,  proceedings  in  case  of,  §  615. 
Summoning,    for    courts    not    of    record, 

§§  230-232. 
Summoning,    for    courts    not    of    record, 

ofScer's  return,  §  232. 
Summoning,  for  courts  of  record,  §§  225- 

228. 
Summoning,  for  justices'  or  police  courts, 

§  230. 
Summoning  juries  of  inquest,  §  235. 
Summoning,  to  complete  panel,  §  227. 
Superior   judge    may   direct   jury   to    bo 

drawn,  §  241. 
To  serve  one  year,  §  210. 
Verdict  of.     See  Verdict. 
When    may    be    drawn    and    summoned 

forthwith,  §  226. 
Who  competent  to  act  as,  §  198. 
Who  exempt  from  jury  duty,  §  200. 
Who  may    be    excused    from    jnrv    duty, 

§  201. 
Who  not  competent  to  act  as,  §  199. 


JURY.     See  .Turor. 

Adjournment    of    court    while    jury    out. 

§617. 
Admonition,  on  separation,  §  Oil. 
Agreement  upon  verdict,  procecdinga  m 

case  of,  §  618. 
Changing    place    of   trial,   for    impartial, 

§397. 
Courts  open  any  day  to  discharge,  §  134. 
Court  open  for  every  purpose  connected 

with  cause  submitted  to,  §  617. 
Defined,  §  190. 
Definition  of  trial,  §  193. 
Deliberation,   duty   of   officer  in   charge, 

§613. 
Deliberation,  how  conducted,  §  613. 
Deliberation   of,  what  papers,  etc.,  may 

and  may  not  take  with  them,  §  612. 
Deliberation,    three    fourths    can    find    a 

verdict,  §  613. 
Discharge     before     verdict,     retrial     of 

cause, §  616. 
Discharge  of,  may  be  discharged  on  holi- 
day, §  134. 
Docket  of  justice  of  peace  must  contain 

demand  for,  §  911. 
Drawing.     See   .Juror. 

Exempt  from  jury  duty,  who  are,  §  206. 

Formation  of,  §  600. 

Grand  jury,  defined,  §  192. 

Grand  jury,  §§  241-243.     See  Grand  Jury. 

Holiday,  may  be  discharged  on,  §  134. 

Impaneling  grand  juries,  §§  241,  242. 

Impaneling,    in    courts    not    of    record, 

§§  250,    251. 
Impaneling,   in    criminal    case,    must    be 

as    prescribed    by    Penal    Code,  §§  247, 

251. 
Impaneling,     in     justices'     and     police 

courts,  manner  of,  §§  250,  251. 
Impaneling  trial  jurors  in  courts  of  rec- 
ord, §§  246,  247. 
Impaneling  trial  jury,  manner  of,  §§  246, 

247. 
Impartial    trial,    change    of    venue    for 

want  of,  §  397. 
Inquest,  how  summoned,  §  235. 
Inquest,  impaneling  jury  of,  §  254. 
Inquest,  jury  of,  defined,  §  195. 
Inquest.     See  Inquest. 
Issues  of  fact  to  be  tried  by,  §  592. 

Justice's  court,  in.  See  Justice's  Courts, 
XVI. 

Kinds  of,  §  191. 

May  decide  in  court  or  retire  and  de- 
liberate, §  613. 

Misconduct  of,  affidavit  of  jury,  §  657. 

Misconduct  of,  new  trial,  §  657. 

Must  find  amount  of  recovery  when, 
§§  626,  627. 

Number  of  grand  jury.  §  192. 

Number  of  trial  jury,  §  194. 

Ordinance,  action  for  violation  of,  jury 
trial,  §  932. 

Panel,  counties  having  several  judg»?9, 
common  panel  drawn  when,  §  248. 


liv 


INDEX.      VOL.    I.       §§1     ■"^59, 


JURY.      (Continued.) 

Panel,    counties    having    several    judges, 

panel  in  attendance  may  serve  before 

any   judge,  §  248. 
Panel,    counties    iiaving    several    judges, 

separate  panels  for  each  judge,  when 

drawn,  §  248. 
Panel,    counties    having    several    judges, 

separate   panel,   not    to   serve   another 

judge,  §  248. 
Panel,    summoning    jurors    to    complete, 

§227. 
Police    court,    when    defendant    entitled 

to,  in   civil  action,  §  932. 
Polling,  §  618. 
Polling,  proceedings  where  jury  disagree, 

§618. 
Polling,  verdict  complete  if  no  disagree- 
ment, §  618. 
Postponement  of  trial  in  justice's  court 

when  jury  demanded,  §  874. 
Powers    of,    generally,  §  190. 
Quieting  title,  jury  trial   in  action  for, 

§  738. 
Eecovery,    must   find    amount   of,    when, 

§§026,627. 
Separation,  §§  611,  613. 
Sick  juror,  proceedings  in  case  of,  §  615. 
Summoning.     See  .Juror. 
Trial   by,  of  special  issue  not  made   by 

pleadings,  §  309. 
Trial  by,  when,  and  how  waived,  §  631. 
Trial  jury,  defined,  §  193. 
Trial.     See  Trial. 
Verdict,  how  declared,  §  618. 
Verdict,    informal    or    insufficient,    pro 

ceedings  on,  §  619. 
Verdict,     prevented,     retrial     of     cause 

§  616. 
Verdict,  sealed,  §  617. 
Verdict,  sealed,  rendered  during  adjourn 

ment,  §  617. 
Verdict,    three    fourths    can   find,  §§613 

618. 
Verdict  of,  §§  624-628.    See  also  Verdict 
View  by,  of  premises,  §  610. 
Waived,  how,  §  631. 
Waiver  by  failure  to  appear,  §  631. 
Waiver  by   oral    consent    in    open    court 

entered  in  minutes,  §  631. 
Waiver    by    written    consent    filed    with 

clerk, §  631. 
What   cases   to   be  tried  by   unless  jury 

waived,  §§  592,   631. 
Waiver  of,  §  592. 

JURY  OF  INQUEST.     See  Inquest. 

JUSTICE'S  CLERK. 

Cities  and  counties,  appointment,  §  86. 

Cities  and  counties,  attorney,  disqualifi- 
cation to  act  as,  §  96. 

Cities  and  counties,  bond,  additional, 
§86. 

Cities  and  counties,  bond  and  oath,  §  86. 

Cities  and  counties,  cashier,  appointment 
and  salary,  §  86. 

Cities  and  counties,  civil  service  laws, 
clerk  and  assistants  entitled  to  bene- 
fits of  after  six  months'  service,  §  86. 


JUSTICE'S  CLERK.     (Continued.) 

Cities  and  counties,  deputies,  appoint- 
ment of,  §  86. 

Cities  and  counties,  deputies,  authority 
of,  to  take  affidavits  and  oaths,  §  86. 

Cities  and  counties,  deputies,  clerks  and 
messengers,  number,  appointment  and 
salaries,  §  86. 

Cities  and  counties,  deputies,  liability 
for,  §  86. 

Cities  and  counties,  disqualification  to 
act  as  attorney,  §  96. 

Cities  and  counties,  docket,  duty  to  keep, 
§  93. 

Cities  and  counties,  fees  paid  in  actions, 
duty  as   to,  §  91. 

Cities  and  counties,  holds  office  during 
good  behavior,  §  86. 

Cities  and  counties,  may  administer 
oaths  and  take  affidavit,  §  86. 

Cities  and  counties,  minutes  of  proceed- 
ings, filing,  §  93. 

Cities  and  counties,  oath  and  bond,  §  86. 

Cities  and  counties,  office  hours,  §  88. 

Cities  and  counties,  records  of  proceed- 
ings of  courts,  shall  keep,  §  89. 

Cities  and  counties,  powers  of  clerk  and 
of  his  deputies,  §  86. 

Cities  and  counties,  salaries  of  clerks 
and  assistants,  how  paid,  §  86. 

Cities  and  counties,  salaries  of  clerk  and 
assistants  to  be  in  lieu  of  fees,  §  86. 

Cities  and  counties,  subpoenas,  issue  by 
clerk, §  87. 

Cities  and  counties,  term  of  office,  §  86. 

Cities  of  second  class,  clerks,  appoint- 
ment, term  of  office,  bond  and  powers, 
§  101. 

Cities  of  second  class,  clerks,  duties  of, 
§§  101,  102. 

Cities  of  second  class,  Ci»i-k,  fees,  fines 
and  penalties,  §  102a. 

Cities  of  second  class,  clerk,  office  hours, 
§99. 

Cities  of  second  class,  cierk,  offices  and 
rooms  for,  §  99. 

Cities  of  second  class,  clerks,  salaries  of, 
§ lG2b. 

Cities  of  second  class,  clerks,  salaries  to 
be  in  lieu  of  fees,  §  102b. 

Cities  of  second  and  one-half  class  class, 
clerk,  appointment,  confirmation,  term 
of  office  and  bond,  §  lOS^/o. 

Cities  of  second  and  one-half  class,  clerk, 
powers  and  duties,  §  103 1/^. 

Cities  of  second  and  one-half  class,  clerk, 
salary  of,  §  103Vo. 

Cities  of  third  class,  appointment  and 
term  of  office,  §  103i/o. 

Cities  of  third  class,  bond  of,  §  103i/£>. 

Cities  of  third  class,  duties  and  powers 
of,  §1031/0. 

Cities  of  third  class,  justices  in,  to  have 
clerk,  §  1031/0. 

Cities  of  third  class,  salary,  §  103*/^. 

Docket.     See  Justices'   Courts,  X. 

Townships  of  between  250,000  and 
400,000,  clerk  and  deputies,  appoint- 
ment and  term  of  office,  §  101. 


INDEX.      VOL.    I.       §§  1-1059. 


Iv 


JTrSTICE'S  CLERK.      (Continued.) 

Townships  between  250,000  and  400,000, 

clerk   and  deputies,  salaries  of,  §  102b. 
Townships  in   counties  of  seventh   class, 

all    pleadings    and    papers    to    be    filed 

with.  §  103b. 
Townships  in  counties  of  seventh   class, 

appointment,   number,   term    of    olHce, 

§  103b. 
Townships  in  counties  of  seventh  class, 

clerk  and  deputies,  salaries  of,  §  lO.'Ui. 
Townships   in   counties  of  seventh  class, 

fees,    collection,    report    and    payment 

into  treasury,  §  10;?b. 
Townships  in  counties  of  seventh  class, 

deputies,   appointment,  term  of  office, 

duties,  powers  anrl  salaries,  §  103b. 
Townships  in  counties  of  seventh  class, 

form  of  process  issued  by,  §  103b. 
Townships  in  counties  of  seventh  class, 

oath   and   bond,  §  103b. 
Townships  in  counties  of  seventh  class, 

office  hours,  §  103b. 
Townships  in  counties  of  seventh  class, 

powers  and   duties   of,  §  103b. 
Townships  in  counties  of  seventh  class, 

supervisors  to  provide  suitable  offices, 

§  103b. 
Townships,   power   to    administer   oaths, 

§  103a. 
Townships,  power  to  issue  summons  and 

writs,  §  103a. 


JUSTICES'  COURTS.     See  Justice's  Clerk; 
Justices  of  the  Peace. 
I.  Nature   of;    holding   of,    and   ses- 
sions; code  provisions  applicable; 
number  of. 
II.  Jurisdiction. 

III.  Attorneys  in,  who  may  act  as. 

IV.  Actions,   how   commenced;    assign- 

ment of  causes  in. 
V.  Pleadings. 
VI.  Counterclaim. 
VII.  Summons. 
VIII.  Attachments;  arrest. 
IX.  Process;  subpoenas. 

X.  Dockets;  records;  minutes, 
XI.  Compromise;  dismissal. 
XII.  Place  of  trial. 

XIII.  Continuance. 

XIV.  Trial;  practice;  rules;  Issues. 

XV.  Appearance;    appearance    by   guar- 

dian. 

XVI.  Jury. 
XVII.  Contempt. 

XVin.  Particular  actions  in. 
XIX.  Verdict. 

XX.  Judgments. 
XXI.  Executions  and  supplementary  pro- 
ceedings. 


JUSTICES'  COURTS.     (Continued.) 

1.  Executions. 

2.  Supplementary  proceedings. 
XXII.  Costs;    fees;   undertakings. 

XXIII.  Appeals. 

I.  Nature    of;    holding    of,    and    sessions; 
code  provisions  applicable;  number  of. 
Always  open,  §§  89,   104. 
Are  courts  of  peculiar  and  limited  juris- 

diction,  §  92.'). 
Cities  of  second  class,  sessions  of,  §  99. 
Code  provisions  applicable  to,  §§  8G9,  870, 

925. 
Number  of,  in   townships,  §  103. 
Number  of,  at   least   one   court   in   each 

township,  §  103. 
Number   of,  two   may  be   established    in 

townships  by  supervisors,  when,  §  103. 
Place  of  holding,  §  104. 
Record,  justices'  courts  are  not  courts  of, 

§34. 
Sessions,  number  of,  §  85. 
Sessions,  where  held,  §  104. 
Townships  between  250.000  and  400,000, 

sessions  of  court,  §  99. 

II.  Jurisdiction. 

Action   for   collection   of  licenses,  §  103. 

Action  in  wrong  jurisdiction,  objection 
to,  appeal,  §  890. 

Action  in  wrong  jurisdiction,  objection 
to,  waiver,  §  890. 

Certifying  cases  to  superior  court,  §  92. 

Cities,  jurisdiction   of,  §  103. 

Cities  of  first  and  one-half  class,  juris- 
diction of,  §  103. 

Cities  of  second  class,  jurisdiction  of, 
§§  99,  100,  103. 

Cities  of  third  classs,  jurisdiction  of, 
§  103. 

Cities  of  fourth  class,  jurisdiction  of, 
§  103. 

Civil,  §§  112,  838. 

Civil,  includes  what  causes,  §  112. 

Concurrent  with  superior  court,  §  113. 

Criminal  jurisdiction,  §  115. 

Does  not  extend  to  ships,  seamen's 
wages,  etc.,  §  114. 

Evidence  not  admissible  upon  what  ques- 
tions, §  838. 

Excess,  remission  of,  §  894. 

Forcible  entrv  and  detainer,  jurisdiction 
in, §  838. 

Tn  general,  §§  89,  103. 

In   townships,  §  103. 

Not  to  trench  upon  jurisdiction  of  courts 
of  record, §  114. 

Ordinance,  jurisdiction  for  violation  of, 
§  103. 

Restricted.  §  114. 

Ships,  proceedings  against,  does  not  ex- 
tend to,  §  114. 

Territorial  extent.  §§  94,  106. 

Townships,  jurisdiction  and  powers  of, 
§103. 


Ivi 


INDEX.      VOL.    I.       §§  1-1059. 


JUSTICES'    COURTS.       II.   Jurisdiction. 

(Continued.) 
Townships    between    two    hundred    and 

fifty     thousand     and      four     hundred 

thousand,   jurisdiction   of,  §  99. 
Transfer   to   superior    court,   jurisdiction 

of  superior  court,  §  838. 
Violation   of  ordinance,  §  103. 
When  amount  found  due  exceeds,  excess 

remitted,  §  894. 
Wrong,  objection  to  action  in,  §  890. 

III.  Attorneys  in,  who  may  act  as. 

Attorney   may   practice   without   license 

in,  §  281. 
License  not  necessary  to  practice,  §  281. 
Power  of  attorney  to  act  as  counsel  in 

justice's   court,  §  96. 
Who  may  act  as,  §  842. 
Who  may  not  act  as,  §  98. 

IV.  Actions,  how  commenced;  assignment 
of  causes  in. 

Action  commenced  by  filing  complaint, 
§  839. 

Assignment  of  causes  by  presiding  jus- 
tice, §§  89,  90. 

Eeassignment  and  transfer  of  actionSj 
§90. 

V.  Pleadings. 
Actions,  how  entitled,  §  89. 
Actions   in,  form,  §  89. 
Amended   pleading,    adverse   party   may 

answer  or  demur,  §  860. 
Amended   pleading,  answer  or  demurrer 

to,   time   to   file,  §  860. 
Amended    pleading,    failure    to    answer, 

proceedings  on, §  872. 
Amendment    of   pleadings,    adjournment 

on,  §§859,  874. 
Amendment  of  pleadings,  costs  as  a  con- 
dition, §  859. 
Amendment     of     pleadings,     demurrer, 

§858. 
Amendment    of    pleadings,    in    general, 

§859. 
Amendment    of    pleadings    on    demurrer 

sustained,  time  for,  §  858. 
Amendment  of  pleadings,  right  of,  §  859. 
Answer  in,  §  852. 
Answer  in,     plaintiff     may     demur     to, 

when,  §  857. 
Answer  may  contain  what,  §  855. 
Answer,  time  for  appearance  of  defend- 
ant, §  845. 
Answer,  time  to,  §  845. 
Answer,  when  demurrer  overruled,  §  858. 
Answer,  in  general.     See  Answer. 
Complaint,  action  commenced  by   filing, 

§  839. 
Complaint,  date  of  filing,  indorsement  of, 

§840. 
Complaint,  defined,  §  853. 
Complaint,     filing,     commences     action, 

§839. 
Complaint  in,  §  852. 


JUSTICES'  COUBTS.  V.  Pleadings.  (Con- 
tinued.) 

Complaint  may  be  copy  of  instrument, 
§  853. 

Complaint,  in  general.     See  Complaint. 

Copy  of  account,  bill,  note,  bond,  or 
other  instrument  as  complaint,  §  853. 

Demurrer,  generally,  §  852. 

Demurrer,  amending  pleadings,  where 
sustained,  §  858. 

Demurrer,  judgment  by  default  after, 
§  872. 

Demurrer,  proceedings  where  sustained 
or  overruled,  §  858. 

Demurrer  sustained,  dismissal  on  failure 
to  amend,  §  890. 

Demurrer  to  answer,  §  852. 

Demurrer  to  answer,  grounds  for,  §  857. 

Demurrer  to  answer,  proceedings  on, 
§858. 

Demurrer  to  answer,  sustaining,  proceed- 
ings on  failure  to  amend  answer,  §  872. 

Demurrer  to  answer,  time  for,  §  857. 

Demurrer  to  complaint,  §  852. 

Demurrer  to  complaint,  overruling,  pro- 
ceedings on  failure  to  answer,  §  872. 

Demurrer  to  complaint,  proceedings  on, 
§858. 

Demurrer  to  complaint,  time  for,  §  854. 

Demurrer,  in  general.     See  Demurrer. 

Dismissal  on  failure  to  amend  where  de- 
murrer sustained,  §  890. 

Exhibiting  original  and  furnishing  copy 
of  instrument  to  adverse  party,  §  886. 

Instrument  attached  to  complaint  or 
filed  with  clerk,  admitted,  unless  de- 
nied under  oath,  §  887. 

Pleading  written  instrument,  genuine- 
ness admitted  when,  §  887. 

Pleadings,  amendment  in  general,  §  859. 

Pleadings,  amendment  on  demurrer, 
§858. 

Pleadings,  entry  of  oral,  §  851. 

Pleadings  in,  are  what,  §  852. 

Pleadings,  filing  of,  §§  89,  851. 

Pleadings,  form  of,  §  851. 

Pleadings,  oral,  §  851. 

Pleadings,  verification,  §  851. 

Pleadings,  what    are   allowed,  §  852. 

Pleadings,  in  general.     See  Pleading. 

VI.  Counterclaim, 

Answer  may  contain,  §  855. 

Counterclaim  upon  account  or  instru- 
ment for  payment  of  money,  exhibit- 
ing original  and  furnishing  copy,  §  886. 

Dismissal  in   case  of,  §  890. 

Omission  to  set  up,  fatal,  §  856. 

Vn.  Summons. 

Alias,  form  of,  §  846. 
Alias,  number  of,  §  847. 
Alias,  time  for  appearance,  §  846. 
Alias,  time  to  issue,  §  847. 
Alias,  when  may  issue,  §  846. 
Blanks,  to  be  issued  without,  §  920. 
County,  cannot  ordinarily  be  served  out- 
side of,  §  848. 


INDEX.       VOL.    1.       §§  1-1059. 


Ivii 


JUSTICES'      COURTS.       VII.     Summons. 

(Continued.) 
County,  may  be  served  outside,  in  what 

cases,  §  848. 
County,  service  outside  of,  certificate  to 

summons,  §  849. 
County,   service    outside    of,    manner    of, 

§§  848,  849. 
County,   service    outside    of,   publication 

of,  §  849. 
County,    service    outside    of,    return    of, 

§849. 
Directed  to  defendant,  §  844. 
How  served,  §  849. 

Indorsement  of  attorney's  name,  §  844. 
In  general.     See  Summons. 
May  be  waived  how,  §  841. 
Must  contain  what,  §  844. 
Must  issue  within  year,  §  840. 
Parties,    summons    must    name,  §  844. 
Process.     See  also  post,  IX. 
Return  of,  §§  87,  849. 
Service    outside    of    county,    manner    of, 

§§  848,849. 
Territorial  limitation  on  service  of,  §  848. 
Time    for    appearance,    specification    of, 

§845. 
To  be  issued  without  blanks,  §  920. 
To  be   served   out   of  county,   certificate 

to,  §  849. 
Waiver  by  appearing  and  pleading,  §  841. 
Waiver  of,  by  writing,  §  841. 
What  to  contain,  §  844. 
Who  may  serve,  §  849. 

VIII.  Attachment;  arrest. 

Arrest  and  imprisonment,  when  defend- 
ant subject  to,  judgment  to  state  fact, 
§  893. 

Arrest,  entry  of  judgment  when  defend- 
ant subject  to, §  893. 

Arrest,  judgment  where  defendant  sub- 
ject  to,  §  893. 

Arrest  of  defendant,  affidavit  for,  §  862. 

Arrest  of  defendant,  certificate  of,  §  864. 

Arrest  of  defendant,  discharge  on  giv- 
ing bond,  §  876. 

Arrest  of  defendant,  females  cannot  be 
arrested, §  861. 

Arrest  of  defendant,  for  embezzlement, 
§861. 

Arrest  of  defendant  for  fraud,  §  861. 

Arrest  of  defendant,  grounds  for,  §  861. 

Arrest  of  defendant  in  action  for  fine  or 
penalty,  §  861. 

Arrest  of  defendant,  officer  must  notify 
plaintiff,  §  864. 

Arrest  of  defendant,  undertaking  for, 
§862. 

Arrest  of  defendant,  when  may  be  or- 
dered, §  861. 

Arrest  where  defendant  about  to  depart 
from  state,  §  861. 

Arrested  defendant,  custody  of,  §  865. 

Arrested  defendant,  discharge  of  on  con- 
tinuance at  plaintiff's  request,  §  876. 

Arrested  defendant  must  be  taken  be- 
fore justice  at  once,  §  863. 


JUSTICES'  COURTS.     VHI.  Attachment; 

arrest.     (Continued.) 

Arrested  defendant,  postponement  at  re- 
quest of,  undertaking,  §  876. 

Arrested  defendant,  proceedings  if  jus- 
tice absent,  disqualified,  etc.,  §  SG3. 

Attachment,  affidavit  for,  §  866. 

Attachment,  affidavit,  wliat  to  state, 
§  866. 

Attachment,  direction  of  writ  to  sheriff, 
§  868. 

Attachment,  sections  of  code  applicable 
to, §  869. 

Attachment,  in  what  cases  issued,  §S66. 

Attachment,  issuance  of,  duty  of  sheriff, 
§866. 

Attachment,  issuance  of,  time  of,  §  866. 

Attachment,  substance  of  writ  §  868. 

Attachment  to  be  issued  on  affidavit, 
§  866. 

Attachment  to  be  served  out  of  the 
county,  certificate  to, §  868. 

Attachment,  undertaking  on,  §  867. 

Attachments,  form  of,  and  contents, 
§868. 

Attachments,  several  writs  may  issue  at 
same  time,  §  868. 

Attachments,  to  whom  directed,  §  868. 

Attachments,  what  to  require,  §  868. 

IX.    Process;  subpcena. 

All  papers,  except  subpoenas,  to  be  is- 
sued without  blanks,  §  920. 

Cities  of  second  class,  process  retura  of, 
§100. 

Process,  by  whom  issued,  §  91. 

Process  may  issue  to  any  part  of  county, 
§919. 

Process,  on  whose  order  to  issue,  §  91. 

Process,  over  what  territory  reaches, 
§§93,106. 

Process,  returnable  to  whom,  §  89. 

Process,  service  of,  by  sheriff  and 
deputy,  §  87. 

Process  upon  docket  of  predecessor, 
§916. 

Subpoena,  clerk  may  issue,  §  87. 

Subpoena,  issuance  and  service  of,  §  87. 

Subpcena  may  issue  to  any  part  of 
county,  §  919. 

Subpcena  to  be  issued  without  blanks. 
§920. 

Successor  has  power  of  predecessor  to 
issue, §  916. 

Summons.     See  ante,  VII. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, process,  issuance  and  return  of, 
§§  100,  101,  102. 

X.     Dockets;  records;  minutea. 

Docket,  a  public  record,  §§  93,  914. 

Docket,  clerk  to  keep,  and  what  to  con- 
tain, §  93. 

Docket,  date  of  trial  and  hearing  to  be 
entered  on,  §  850. 

Docket,  deposited  where,  on  vacancy, 
and  before  successor  appointed,  §  91  "i 


]viii 


INDEX.       VOL.    I.       §§  1-1059. 


JUSTICES'  COURTS.  X.  Dockets;  rec- 
ords;   minutes.      (Continued.) 

Docket,  entries  in,  force  and  effect  of, 
§93. 

Docket,  entries  in,  time  of  making,  §  912. 

Docket,  entries  prima  facie  evidence, 
§§850,  912. 

Docket,  entries  to  be  under  title  of  ac- 
tion, §  912. 

Docket,  entries  where  one  justice  sits 
for  another,  §  922. 

Docket,  entry  of  date  of  mailing  notice 
of  hearing  on,  §  850. 

Docket,  every  justice  must  keep,  §  911. 

Docket,  how  kept,  §  93. 

Docket,  index  to  docket  must  be  kept, 
§  913. 

Docket,  index  to,  how  kept,  §  913. 

Docket  must  be  delivered  to  successor 
or  county  clerk,  §  914. 

Docket  of  predecessor,  process  or  execu- 
tion on,  §  916. 

Docket,  to  contain  what,  §§  911,  913. 

Filing  papers  and  pleadings,  §  89. 

Minutes  of  proceedings,  justice  shall 
take  and  certify  to  clerk,  §  93. 

Papers  to  be  kept  as  public  records, 
§914. 

Record  of  proceedings  kept  in  clerk's 
office,  §  89. 

Records  and  official  papers  to  be  deliv- 
ered to  successor,  §  914. 

Townships  between  250,000  and  400,000, 
papers,  transcripts  of  records  in,  issu- 
ing, signing  and  certifying,  §  102. 

Townships  between  250,000  and  400,000, 
pleadings  and  papers  filing  and  rec- 
ord of,  §  102. 

Transcript  of  entries  in  docket  prima 
facie  evidence, §  912 

XI.     Compromise ;    dismissal. 

Compromise,  costs  in  case  of  offer  of, 
§  895. 

Compromise,  effect  of  accepting  offer  to, 
§895. 

Compromise,  effect  of  refusing  offer  to, 
§895. 

Compromise,  evidence  not  admissible, 
§  895. 

Dismissal,  actions  may  be  dismissed 
when,  §  890. 

Dismissal,  failure  to  amend,  where  de- 
murrer sustained, §  890. 

Dismissal  for  failure  to  make  appear- 
ance, §  890. 

Dismissal,  judgment  of,  where  action  in 
wrong  jurisdiction,  §  890. 

Dismissal,  voluntary,  §  890. 

Dismissal,  want  of  prosecution,  §  890. 

Dismissal,  where  counterclaim  or  af- 
firmative  relief   sought,  §  890. 

Dismissal  where  provisional  remedy  al- 
lowed, delivery  of  bond  to  defend- 
ant, §  890. 

Dismissal  without  prejudice,  in  what 
cases  may  be  entered,  §  890. 


JUSTICES'   COURTS.      (Continued.) 

XII.  Place  of  trial. 

Changing,  affidavits,  §  833. 

Changing,  because  of  interest,  §  90. 

Changing,  costs  on,  §  836. 

Changing,  effect  of  order   changing,  §  836. 

Changing,  for  disqualification,  §  833. 

Changing,  grounds  for,  §  833. 

Changing,  limitation  on  right  to  change, 
§834. 

Changing,  power  of  court  to  which  case 
transferred, §  836. 

Changing,   proceedings  after,  §  836. 

Changing,  to  what  court  cause  may  be 
transferred, §  835. 

Changing,  transmitting  papers,  §  836. 

Claim  and  delivery,  where  to  be  brought, 
§  832. 

Generally,  §  832. 

In  what  township  or  citj',  §  832. 

Non-resident,  action  against,  to  be  com- 
menced in  what,  §  832. 

Replevin,  action  in,  to  be  commenced 
where,  §  832. 

Township  or  city,  action  may  be  com- 
menced in  what,  §  832. 

Transfer  of  proceedings,  §  90. 

Transfer  to  superior  court,  effect  of, 
§838. 

Transfer  to  superior  court,  in  what  cases 
required,  §  838. 

Transfer  to  superior  court,  proceedings 
on,  §  838. 

Where  parties  voluntarily  appear  and 
plead   without   summons,  §  832. 

Where  several  jointly  or  jointly  and  sev- 
erally bound,  §  832. 

XIII.  Continuance. 

Admission  of  evidence,  effect  of,  on  mo- 
tion for,  §  876. 

Affidavit  and  showing  necessary,  §  876. 

Deposition  of  witnesses,  on  postpone- 
ment of  trial,  §  876. 

Depositions  of  witnesses  present,  §  876. 

Grounds  of,  §  876. 

Length  of,  §  876. 

Length  of,  where  granted  on  court's 
own  motion,  §  874. 

Not  granted  for  more  than  ten  davs, 
unless  upon  undertaking  to  pay  judg- 
ment, §  877. 

Trial,  adjournment  not  to  be  over 
twenty-four  hours,  §  873. 

Trial,  continuance  of,  without  adjourn- 
ment, §  873. 

Trial,  court  may  postpone  of  own  mo- 
tion when,  §  874. 

Trial,  postponement  by  consent  of  par- 
ties, §  875. 

Trial,  postponement  by  court  of  own 
motion,  grounds  for,  §  874. 

Trial,  postponement  for  amendment  of 
pleadings,  §  874. 

Trial,  postponement  for  want  of  testi- 
mony, affidavit  as  to  evidence,  §  876. 


INDEX.      VOL.    1.       §§  1-1059. 


lix 


JUSTICES'  COURTS.     XIII.  Continuance. 

(Continued.) 

Trial,  postponement  for  want  of  testi- 
mony, when  denied,  §  87(). 

Trial,  postponement  on  court's  own  mo- 
tion, length  of,  §  874. 

Trial,  postponement  upon  application  of 
arrested  party,  undertaking,  s  876. 

Trial,  postponement  upon  ai>plication  of 
party,   deposition   of  witness,  §  876. 

Trial,  jiostponement  upon  application  of 
party,  for  want  of  testimony,  §  876. 

Trial,  postponement  upon  application  of 
party,  grounds  for,  §  876. 

Trial,  postponement  upon  application  of 
party,  how  obtained,  §  876. 

Trial,  postponement  upon  application  of 
party,  length  of,  §  876. 

Trial,  postponement  u]>on  application  of 
party  under  arrest,  §  876. 

Trial,  postponement  upon  application  of 
plaintiff  discharges  defendant  under 
arrest,  §  876. 

Trial,  postponement  when  jury  de- 
manded, §  874. 

"Where  defendant  under  arrest,  §  876. 

XIV.     Trial;  practice;  rules;  issues. 

Date  of  trial  and  hearing  to  be  entered 
in  docket,  §  850. 

Evidence  not  admissible  upon  what  ques- 
tions, §  838. 

Exhibiting  original  instrument  and  de- 
livering copy   of  adverse  party,  §  886. 

Hearing,  date  of,  to  be  entered  in 
docket,  §  850. 

Hearing,  fixing  day  of,  §  850. 

Hearing,  notice  by  mail,  manner  of, 
§850. 

Hearing,  notice  by  mail,  when  per- 
mitted, §  850. 

Hearing,  notice  of,  date  of  mailing  to 
be  entered  in  docket,  §  850. 

Hearing,  notice  of,  form  of,  §  850. 

Hearing,  notice  of,  returning  and  filing, 
§  850. 

Hearing,  notice  of,  service  of,  §  850. 

Hearing,  notice  of,  time  of,  §  850. 

Hearing,  notice  of,  to  be  given,  §  850. 

Issue  of  fact,  how  raised,  §  880. 

Issue  of  fact  tried  by  court  where  jury 
waived,  §  882. 

Issue  of  fact  tried  by  jury,  unless 
waived,  §  882. 

Issue  of  law,  how  raised,  §  879. 

Issue  of  law  triable  by  court,  §  881. 

Issues,  classified,  §  878. 

Issues,  defined,  §  878. 

Issues,  how  arise,  §  878. 

Notice  of  trial,  form  and  service,  §  850. 

Notice  of  trial,  return  and  entrv  of, 
§  850. 

Notice,  to  whom  given,  §  850. 

One  hour  in  which  to  ap{)ear  after  time 
fixed  in  notice,  §  850. 

Practice,  general  doctrines  regulating, 
§  95. 


JUSTICES'  COURTS.  XIV.  Trial;  prac- 
tice; niles;   issues.     (Continued.) 

Kules,  power  to  make  and  limitations 
on,  §  1)5. 

Rules,  when  to  go  into  effect,  §  95. 

Trial,  continuance  of,  without  adjourn- 
ment, §  S7.'l. 

Trial,  continuance  or  adjournment  of. 
See  ante,  XIII. 

Trial,  date  to  be  entered  on  docket, 
§  850. 

Trial  may  proceed  when  party  fails  to 
appear,  S  884. 

Trial  must  commence  within  hour,  5  873. 

Trial,  notice  of,  entry  of  service  in 
docket,  §  850. 

Trial,  notice  of,  evidence  of  service, 
§850. 

Trial,  notice  of,  form  of,  §  850. 

Trial,  notice  of,  form  and  service  there- 
of, §  850. 

Trial,  notice  of,  how  served,  §  850. 

Trial,  notice  of,  how  served  where 
party  has  appeared  by  attorney,  §  850. 

Trial,  notice  of,  time  of  service,  §  850. 

Trial,  notice  of,  to  be  given,  §  850. 

Trial,  notice  of,  to  whom  given,  §  850. 

Trial,  notice  of,  return  and  filing  of, 
§  850. 

Trial,  notice  of,  when  may  be  served  by 
mail,  §  850. 

Trial,  notice  of,  who  may  serve,  §  850. 

Trial,  parties  entitled  to  one  hour  in 
which  to  appear,  §  850. 

Trial,  time  when  must  be  commenced, 
§873. 

XV.     Appearance;    appearance     by    guar- 
dian. 

Appearance,  dismissal  for  failure  to 
make,  §  890. 

Appearance,  failure  of,  trial  may  pro- 
ceed on, §  884. 

Appearance,  hour  for,  §  850. 

Appearance,  fixing  time  for  trial,  §  850. 

Appearance  of  defendant,  time  for,  §  845. 

Appearance,  parties  entitled  to  one  hour 
for,  §  850. 

Appearance,  voluntary,  place  of  trial, 
§  832. 

Appearing  and  pleading,  waiver  of  sum- 
mons by,  §  841. 

Guardian  ad  litem,  how  appointed  for 
defendant.  §  843. 

Guardian  ad  litem,  how  appointed  for 
plaintiff,  §  843. 

Guardian  ad  litem,  time  of  appointment 
of,  §  843. 

Guardian  mav  appear  for  infant  or  luna- 
tic. §  843. 

Infant  may  appear  by  guardian,  §  843. 

Insane  person  maj'^  appear  bv  guardian. 
§  843. 

Parties  entitled  to  one  hour  to  appear 
at  trial.  §  850. 

Parties  may  appear  in  person  or  by  ar- 
tornev,  §842. 


]x 


INDEX.      VOL-    I.       §§  1-1059. 


JUSTICES'  COURTS.  XV.  Appearance; 
appearance  by  guardian.    (Continued.) 

Time  for  appearance  where  alias  sum- 
mons issued,  §  846. 

Townships  of  between  250,000  and  400,- 
000,  appearance  in,  §  100. 

XVI.     Jury. 

Docket  must  contain  names  of  jury  and 
demand  for,  §  911. 

Impaneling  jury  in,  §  250. 

Impaneling,  manner  of,  §§  250,  231. 

Issue  of  fact  to  be  tried  by  jury,  unless 
waived,  §  882. 

Jurors,  challenges  are  peremptory  or  for 
cause,  §  885. 

Jurors,  challenges  for  cause,  grounds 
for,  §  885. 

Jurors,  challenges  for  cause  to  be  tried 
by  justice,  §  885. 

Jurors,  challenges,  three  peremptory  al- 
lowed, §  885. 

Jurors,  how  summoned,  §§  230,  231. 

List  of  jurors  summoned  to  be  callecj, 
§250. 

Manner  of  impaneling,  §  251. 

Names  to  be  drawn  from  box,  §  250. 

Names  to  be  written  on  slips,  and  folded 
and  placed  in  box,  §  250. 

Postponement  of  trial  where  jurv  de- 
manded, §  874. 

Proceedings  in  forming,  §  250. 

Summoning  jury  in  justice's  court, 
§§  230-232. 

Summoning,  of,  officer's  return,  §  232. 

Waived  by  consent,  §  883. 

Waived  by  failure  to  appear,  §  883. 

Waived  bv  failure  to  demand,  §  883, 

Waived  how,  §  883. 

XVII.    Contempt. 

Conviction  must  be  entered  in  docket, 
§910. 

Disobedience  to  order  or  process,  §  90G. 

Disorderly  conduct,  §  906. 

Fine  or  imprisonment  for,  §  909. 

In  presence  of  justice,  proceedings  for, 
§907. 

In  presence  of  justice,  punished  sum- 
marily, §  907. 

In  what  cases  justice  may  punish  for, 
§906. 

Not  in  presence  of  justice,  proceedings 
for.  §  908. 

Punishment  for,  §  909. 

Eescuing  person  or  property,  §  906. 

What  acts  are,  §  906. 

Witnesses,  disobedience  by,  §  906. 

XVIII.     Particular  actions  in. 

Account,  action  on,  exhibition  and  in- 
spection of,  §  886. 

Account,  action  on,  furnishing  copy, 
§  886. 

Bill  of  particulars,  §  454. 

Claim  and  delivery,  action,  where  to  be 
brought,  §  832. 


JUSTICES'  COURTS.  XVIII.  Particular 
actions  in.     (Continued.) 

Claim  and  delivery,  in,  code  sections 
applicable,  §  870. 

Claim  and  delivery,  plaintiflf  may  claim 
delivery  of  property,  §  870. 

Claim  and  delivery,  procedure,  §  870. 

Genuineness  of  instrument  sued  on,  ad- 
mitted when,  §  887. 

Joint  obligation,  action  on,  service  out- 
side of  county,  §  848. 

Licenses,  actions  for  collection  of,  §  103. 

Written  instruments,  action  on,  exhibi- 
tion and  inspection,  §  886. 

Written  instruments,  action  on,  furnish- 
ing copy,  §  886. 

XIX.     Verdict. 
Docket  must  contain,  §  911. 
Judgment    on,    to    be    entered    at    once, 
§891. 

XX,     Judgments. 

Abstract,  filing  in  county  of  defend- 
ant's residence,  §  905. 

Abstract,  filing  in  superior  court,  right 
to  execution,  §  899. 

Abstract  may  be  filed  in  office  of  county 
clerk  of  county  where  rendered,  §  898. 

Abstract  of  judgment,  filing  and  docket- 
ing in  superior  court,  §  898. 

Abstract  of  judgment,  form  of,  §  897. 

Abstract  of  judgment,  justice  to  give  on 
request,  §  897. 

Abstract  of  judgment  must  be  recorded 
to  create  lien  on  lands,  §  900. 

Abstract,  time  of  receiving,  clerk  to 
note  and  enter,  §  898. 

Arrest  and  imprisonment,  when  defend- 
ant subject  to,  judgment  to  state  fact, 
§893. 

Arrest,  judgment  where  defendant  sub- 
ject to,  §  893. 

By  default,  amount  of,  §  871. 

By  default,  proceedings  on,  §  871. 

By  default,  relief  for  mistake,  surprise, 
neglect,  §  859. 

By  default,  relief  from,  affidavit,  §  859. 

By  default,  relief  from,  time  to  apply, 
§859. 

By  default,  when  defendant  fails  to  an- 
swer amended  complaint,  §  872. 

B}-  default,  when  demurrer  to  answer 
sustained, §  872. 

By  default,  when  demurrer  to  complaint 
overruled,  §  872. 

By  default,  when  rendered,  §  871. 

Confession  of  judgment  may  be  entered, 
§  112. 

Confession  of,  may  be  entered  in  any 
court,  §  889. 

Dismissal,  judgment  of,  when  action  in 
wrong  jurisdiction,  §  890. 

Dismissal  without  prejudice,  in  what 
cases  may  be  entered,  §  890. 

Dismissal.     See  ante.  XI. 

DocVoting,  in  superior  court,  right  of, 
§  898. 


INDEX.      VOL.    I.       §§1-1059. 


Ixi 


JUSTICES'     COUETS.       XX.  Judgments. 

(Continued.) 

Docketing,  in  superior  court,  right  to 
execution, §  899. 

Docket  must  contain,  §  911. 

Entered,  must  be  within  thirty  days  of 
submission,  §  892. 

Entry  of,  judgment  ineffectual  for  any 
purpose  until,  §  89.3. 

Entry  of.  judgment  to  be  entered  at 
close  of  trial  by  court,  §  892. 

Entry  of,  manner  of,  §  89."^. 

Entry  of,  must  be  entered  within  ten 
days  after  submission,  §  892. 

Entry,  verdict,  judgment  upon,  to  be  en- 
tered at  once,  §  891. 

Excess,  remission  of,  and  entry  of  judg- 
ment for  residue,  §  894. 

Lien  of,  extends  how  long,  §  900. 

Lien  of  judgment  on  land,  extent  of, 
§900. 

Lien  on  land  from  time  of  filing  ab- 
stract, §  900. 

Lien  of,  duration  of,  §  900. 

Lien  of,  filing  successive  abstracts  and 
continuing  lien,  §  900. 

Lien  on  land,  not,  unless  abstract  filed  in 
county,  §  900. 

Eemitting  amount  in  excess  of  juris- 
diction, §  894. 

Eendered,  judgment  to  be  within  thirty 
days  of  submission,  §  892. 

Rendition  of,  notice  of,  time  to  serve, 
§893. 

Eendition  of  judgment,  notice  of,  jus- 
tice  to  give  to  parties,  §  893. 

Eendition  of,  notice  of,  judgment,  how 
given,  §  893. 

Verdict,  judgment  on,  to  be  entered  at 
once,  §891. 

XXI.     Executions  and  supplementary  pro- 
ceedings. 

1.     Executions. 

Alias,  may  be  issued,  §  903. 

Blanks,  to  be  issued  without,  §  920. 

Boundaries,  change  of,  justice  may  issue 
execution  on  docket  of  predecessor, 
§916. 

Contents  of,  §  902. 

Date,  §  902. 

Directions,  what  to  contain,  §  902. 

Docket  must  contain  statements  relat- 
ing to, §  911. 

Docketing  judgment  in  superior  court, 
execution  in  case  of,  §  899. 

Duty  of  officer  receiving,  §  904. 

Form   of,  §  902. 

In  another  county,  §  905. 

Manner  of  exeeuting,  §  904. 

May  issue  within  five  years,  §  901. 

New  county,  justice  may  issue  execu- 
tion on  docket  of  predecessor.  §  916. 

On  judgment  docket  in  superior  court, 
§899. 

Power  of  officer  receiving,  §  904. 

Eenewal,  manner  of,  §  903. 

Renewal  of,  authorized,  §  903. 


JUSTICES'  COURTS.  XXI.  Executions 
and  supplementary  proceedings.  1. 
Executions.     (Continued.) 

Renewal,  .successive  renewals,  §  903. 

Stay  of,  not  to  exceed  ten  days,  §  901a. 

Stay  of,  power  to  grant,  §  901a. 

Subscription,  §  902. 

Successor  in   office  may  issue,  §  901. 

Time   within   which   may  issue,  §  901. 

To  be  issued  without  unfilled  blanks, 
§920. 

To  contain  statement  of  what,  §  902. 

To  whom  directed,  §  9(12. 

Upon  docket  of  preceding  justice,  §  916. 

Who  may  issue,  §  901. 

2.     Supplementary  proceedings. 
Supplementary     proceedings     authorized 

in,  §  905. 
Supplementary    proceedings,     provisions 

of  code  applicable,  §  905. 

XXII.     Costs;  fees;  undertakings. 

Costs,  attorney's  fee  in  action  for  wages, 
?  924. 

Costs,  deposit  or  security  may  be  re- 
quired  for,  §  923. 

Costs,  in  cases  compromise  offered  be- 
fore trial,  §  895. 

Costs  included  in  judgment,  §  896. 

Costs,  justice  to  tax,  §  897. 

Costs,  prevailing  party  entitled  to  what, 
§924. 

Deposit  instead  of  undertaking,  §  926. 

Fee,  attorney's  recovering  as  costs  in  ac- 
tion for  wages,  §  924. 

Fees,  collection  and  report  of,  §  103. 

Fees  for  issuance  and  service  of  process, 
§91. 

Fees,  inability  to  pay,  §  91. 

Fees.  iu<lgment  not  to  be  rendered  until 
paid,  §  91. 

Fees,  payment  in  advance,  §  91. 

Fees,  payment  in  advance,  when  ex- 
cused, §  91. 

Securitv  for  costs,  justice  mav  reriuire, 
§  923". 

Undertaking,  deposit  in  lieu  of,  §  92G. 

XXIII.     Appeals. 
Attachment     when     only     continued     in 

force  by,  §  946. 
Bond,    dispensing     with    on    appeal    by 

executor,  trustee,  etc.,  §  946. 
Certificates,       transcripts       and       other 

papers,  §  92. 
Docket  to  contain  what,  §  911. 
How  taken,  §  92. 
Judgments    of   superior    court    on,    what 

appealable,  §  964. 
Notice,  filing  of,  §  92. 
Papers  to  be  filed,  §  92. 
Power  of  lower  court  to   proceed   nftnr, 

§946. 
Property    levied    on,    relensp   of,     where 

sureties  excepted  to,  §  946. 
Property  released  from   execution,  §  946. 
Statements,  who  to  settle,  §  92. 


Ixii 


INDEX.      VOL.    I. 


;§  1-1059. 


JUSTICES'     COURTS.       XXIII.  Appeals. 

(Continued.) 

Stays  all  proceedings  upon  judgment  or 
order,  §  946. 

Superior  court,  from  matter  taken  to, 
time  for,  §  939. 

Superior  court,  proceedings  brought  into, 
appealability,  §  964. 

Sureties,   justification   of,  §  92. 

To  superior  court,  §§  974-980.  See  Ap- 
peals. 

To  supreme  court,  §  964. 

Transcripts  in  cases  certified  to  superior 
court,  §§  92,  838. 

JUSTICES    OF    THE    PEACE.     See    Jus- 
tices'  Courts. 

I.  Generally. 

II.  In  cities  and  in  cities  and  counties. 
III.  In  townships. 

I.     Generally. 

Acknowledgment,  affidavit,  deposition, 
may  take,  §  179. 

Attachment,  issuance  of.  See  Justices' 
Courts,  VIII. 

Blanks  must  be  filled  in  all  papers  is- 
sued by,  except  subpoenas,  §  920. 

Boundaries,  change  of,  power  over  pro- 
ceedings begun  before  predecessor, 
§916. 

Change  of  venue  for  bias,  etc.,  proce- 
dure, §  170. 

Citizen,  justice  must  be,  §  159. 

Clerk,  §§86  et  seq.     See  Justice's  Clerk. 

Constable  may  not  act  as  attorney,  §  842. 

County,  new,  creation  of,  power  of  jus- 
tice over  proceedings  begun  before 
predecessor,  §  916. 

Death,  papers,  records  and  dockets  to  be 
deposited  where,  §  91.5. 

Deposition,  may  take,  §  179. 

Disability  or  absence  of,  attendance  of 
another  justice,  adjournment  resum- 
ing jurisdiction,  §  922. 

Disability  or  absence  of,  attendance  of 
another  justice,  entry  of  proceedings, 
§922. 

Disability  or  absence  of,  attendance  of 
another  justice  in  his  behalf,  §  922. 

Disability  or  absence  of,  attendance  of 
another  justice,  powers  of,  §  922. 

Disqualification  of,  what  matters 
amount  to,  §  170. 

Disqualification  to  practice  law,  §  171. 

Disqualification  of,  proceedings  on, 
§  170. 

Disqualification,  waiver  of,  §  170. 

Disqualified,  transfer  of  cause  to  an- 
other, §  .398. 

Docket.     See  Justices'  Courts,  X. 

Expiration  of  office,  must  deliver  papers 
and  dockets  to  successor,  §  914. 

Moneys  collected,  must  receive  and  pay 
same  to  parties,  §  921. 

Not  to  have  law  partner,  §  172. 


JUSTICES  OF  THE  PEACE.  I.  Gener- 
ally,     (Continued.) 

Not  to  practice  before  justice's  court, 
§  171. 

Police  judge,  act  conferring  power  to 
act  as,  I  11.5,  note. 

Process.     See  Justices'  Courts,  IX. 

Qualification  of,  §  159. 

Eesidence  of,  §  159. 

Salary,  oath  that  no  cases  undecided 
over  thirty  days  before  drawing,  §  892. 

Subpoenas.     See  Justices'  Courts,  IX. 

Successor  has  authority  of  predecessor, 
§916. 

Successor,  power  and  authority  over  ex- 
isting proceedings,  §  916. 

Successor,  when  superior  court  shall 
designate,  §  918. 

Successors  of  others,  what  justices  are, 
§§  98,  107,  916,  917. 

Term  of  office,  §  110. 

Transfer  of  action  to  another  court, 
manner  of,  §§  398,  399. 

Vacancy,  papers  and  dockets  to  be  de- 
posited where,  §  915. 

II.     In  cities  and  in  cities  and  counties. 

Cities  and  counties,  absence  or  dis- 
ability, reassignment  and  transfer  of 
action,  §  90. 

Cities  and  counties,  any  justice  may 
hold  court,  §  85. 

Cities  and  counties,  attorney  at  law, 
must  be,  §  85. 

Cities  and  counties,  attorney,  right  to 
appear  as,  before,  §  96. 

Cities  and  counties,  attorney,  when  not 
to  act  as,  §  96. 

Cities  and  counties,  clerk  of,  not  to  act 
as  attorney, §  96. 

Cities  and  counties,  clerk  of.  See  Jus- 
tice's Clerk. 

Cities  and  counties,  disqualification  to 
act  as  attorney,  §  96. 

Cities  and  counties,  election  of,  §  85. 

Cities  and  counties,  elector  of  city  and 
county,  must  be,  §  85. 

Cities  and  counties,  fees,  payment  into 
treasury,  §  91. 

Cities  and  counties,  minutes  of  proceed- 
ings, to  keep,  §  93. 

Cities  and  counties,  minutes,  to  be  cer- 
tified, returned  and  filed,  §  93. 

Cities  and  counties,  number  of,  §  85. 

Cities  and  counties,  number  of  sessions, 
§85. 

Cities  and  counties,  office-rooms,  how 
provided, §  88. 

Cities  and  counties,  office  and  office 
hours,  §  88. 

Cities  and  counties,  offices,  expense  of, 
how  met,  §  88. 

Cities  and  counties,  pleadings  and 
papers  to  be  certified,  returned  and 
filed,  §  93. 

Cities  and  counties,  presiding,  appoint- 
ment  and   removal,  §  85. 


INDEX.       VOL.    I.       §§  1-1059. 


Ixiii 


JUSTICES     OF     THE     PEACTE.       II.  In 

cities    and    in    cities    and    counties. 

(Coiitinueil.) 

Cities  and  counties,  presiding,  assign- 
ment of  causes  by,  §§  S9,  90. 

Cities  and  counties,  presiding,  disability 
or  absence  of,  substitute,  §  85. 

Cities  and  counties,  presiding  justice, 
salary  of,  §  97. 

Cities  and  counties,  qualifications  of, 
§85. 

Cities  and  counties,  rooms,  attendants 
and  supplies  to  be  furnished,  §  <S,S. 

Cities  and  counties,  salary  of,  §  97. 

Cities  and  counties,  salary  to  be  sole 
compensation,  §  97. 

Cities  and  counties,  sheriff  and  deputies, 
ex-oflicio  officers,  §  87. 

Cities  and  counties,  sheriff  may  be  di- 
rected to  furnish  rooms,  etc.,  §  88. 

Cities  and  counties,  succession  of  jus- 
tices, transfer  of  records,  etc.,  §  98. 

Cities  and  counties,  successors  of  others, 
what  justices  are,  §§  98,  917. 

Cities  and  counties,  successors,  powers 
and  jurisdiction  of,  §§  98,  916. 

Cities  and  counties,  supervisors  to  fur- 
nish suitable  rooms,  §  88. 

Cities,  officers  to  be  provided  for,  §  103. 

Cities  of  first  class,  fees,  report  and  pay- 
ment into  treasury, §  103. 

Cities  of  first  class,  justices  must  have 
been  admitted  to  practice  law,  §  103. 

Cities  of  first  class,  justices  not  to  prac- 
tice before  another  justice  or  have 
law  partner,  §  103. 

Cities  of  first  class,  justices,  salaries  are 
sole  compensation,  §  103. 

Cities  of  first  class,  salaries,  how  paid, 
§103. 

Cities  of  first  and  one-half  class,  fees, 
report  of  and  payment  into  treasury, 
§  103. 

Cities  of  first  and  one-half  class,  jus- 
tices in,  number  of,  §  103. 

Cities  of  first  and  one-half  class,  jus- 
tices, powers,  §  103. 

Cities  of  first  and  one-half  class,  jus- 
tices, must  have  been  admitted  to 
practice,  §  103. 

Cities  of  first  and  one-half  class,  jus- 
tices not  to  practice  before  another 
justice  or  have  law  partner,  §  103. 

Cities  of  first  and  one-half  class,  salaries 
are  sole  compensation,  §  103. 

Cities  of  first  and  one-half  class,  jus- 
tices, salaries  of,  §  103. 

Cities  of  second  class,  fees,  report  of 
and  payment  into  treasury,  §  103. 

Cities  of  second  class,  justices,  powers, 
§103. 

Cities  of  second  class,  justices  not  to 
practice  before  another  justice  or 
have  law  partner,  §  103. 

Cities  of  second  class,  justices  must  have 
been  admitted  to  practice,  §  103. 

Cities  of  second  class,  justices,  number 
of,  §§  99,  103. 


JUSTICES     OF     THE     PEACE.       II.  In 
cities    and    in    cities     and     counties. 

(Continued.) 
Cities    of    second     class,   justices,   oflSce 

hours,  §  99. 
Cities   of  second   class,   justices,   powers 

and   authority,  §  100. 
Cities  of  second   class,  justices,  salaries 

of,  §  103. 
Cities  of  second   class,  justices,  salaries 

are  sole  compensation,  §  103. 
Cities  of  second  class,  justices,  salaries 

to  be  in  lieu  of  fees,  §  102b. 
Cities  of  second  class,  offices  and  rooms 

for,  §  99. 
Cities  of  second  class,  powers,  §  99. 
Cities  of  second  class,  presiding  justice, 

§99. 
Cities  of  second  and  one-half  class,  fees, 

report  of  and  payment  into  treasury, 

§  103. 
Cities  of  second  and  one-half  class,  jus- 
tices   not   to    practice    before    another 

justice   or  have   law   partner,  §  103. 
Cities  of  second  and  one-half  class,  jus- 
tices    must    have     been    admitted    to 

practice,  §  103. 
Cities  of  second  and  one-half  class,  jus- 
tices, number  of,  §  103. 
Cities  of  second  and  one-half  class,  jus- 
tices, salaries  of,  §  103. 
Cities  of  second  and  one-half  class,  jus- 
tices,  salaries   are   sole    compensation, 

§§  103,  103yo. 
Cities  of  third  class,  clerk,  appointment, 

confirmation,  term  of  office  and  bond, 

§  10311'. 
Cities  of  third  class,  clerk,  powers  and 

duties  of,  §  10314. 
Cities    of   third   class,    clerk,    salary    of, 

§  1031 -J. 
Cities  of  third  class,  fees,  report  of  and 

payment   into   treasury,  §  103. 
Cities    of    third   class,    justices,    powers, 

§  103. 
Cities    of     third     class,     justices    not    to 

practice  before  another  or  to  have  law 

partner.  §  103. 
Cities  of  third  class,  justices  must  have 

been  admitted  to  practice,  §  103. 
Cities   of   third    class,  justices,    number 

and  election  of,  §  103. 
Cities  of  third  class,  justices,  salaries  of. 

§  103. 
Cities    of    third    class,   justices,     salaries 

are   sole   compensation,  §§  103,    ]03i->. 
Cities  of  fourth  class,  fees,  report  of  and 

payment    into    treasury,  §  103. 
Cities  of  fourth  class,  powers,  §  103. 
Cities   of   fourth   class,  justices,   number 

and  election   of,  §  103. 
Cities  of   fourth  class,   justices,  salaries 

of,  §103. 
Cities   of   fourth   class,  salaries   are   sole 

compensation,  §  103. 

III.     In  townships. 
Change    in    boundaries   of    township   or 
county,  succession  of  justices,  §  107. 


Ixiv 


INDEX.      VOL.    I.       §§1-1059. 


JUSTICES     OF     THE     PEACE.     III.  In 

townships.     (Continued.) 

Election  of,  §  103. 

Eligibility,  admission  to  practice  law, 
§  103. 

Eligibility,  general  requirements,  §  159. 

Holding  court  for  another  justice,  effect 
of  proceedings,  §  105. 

Holding  court  for  another,  entries  in 
docket,  §  105. 

Holding  court  for  another,  power  of, 
§105. 

.Jurisdiction    of,  §  106. 

Not  to  have  law  partner,  §  103. 

Not  to  practice  before  another  justice, 
§103. 

Salaries,  how  paid,  §  103. 

Salary  to  be  sole  compensation,  §  103. 

Succession  of  justices,  on  change  of 
boundaries,  §  107. 

Successor,  on  change  of  boundaries, 
§107. 

Successors  of  others,  what  justices  are, 
§§  107,  916,  917. 

To  be  provided  with  suitable  offices, 
§103. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand,  composed   of   six  justices,  §  99. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, fees,  accounting  for  and  pay- 
ment into  treasury, §  102a. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, fees,  fines  and  penalties  become 
property  of  county,  §  102a. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, fees  to  be  paid  in  advance, 
§  102  a. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, office  hours,  §  99. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, powers  and  duties  of,  §§  100,  101, 
102. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, powers  of  justices,  §  99. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, presiding  justice  of,  §  99. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, rooms  for,  duty  of  supervisors, 
§99. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, salary  is  in  lieu  of  fees,  §  102b. 

Townships  between  two  hundred  and 
fifty  thousand  and  four  hundred  thou- 
sand, salary  of  justices,  §  102b. 

"Vacancies,   how   filed,  §111. 

What  justice  may  hold  court  for  an- 
other, §  105. 

Where  held,  §  104. 


JUSTICES  OF  SUPERIOR  COURT.     See 

Judges;      Superior      Court;      Superior 
Judges. 

JUSTICES   OF   SUPREME    COURT,     See 

Supreme  Court  Justices. 

JUSTIFICATION       OF       SURETY.      See 

Surety. 
By  surety  company,  §  1057a. 

JUVENILE  OFFENDERS. 

Probationary  treatment  of  juvenile  of- 
fenders, §  131. 

Probation   officer,  appointment  of,  §  131. 

Probation  officer,  powers  and  duties  of, 
§  131. 

Probation  officer,  receives  no  compensa- 
tion, §  131.     See  Probation  Officers. 


LAKE. 

Venue  of  action  for  offense  on  lake 
situated   in   several  counties,  §  393. 

LANDLORD  AND  TENANT. 

Adverse   possession   between,  §  326. 
Joinder  of  landlord  as  party  defendant, 

where  tenant  in  possession,  §  379. 
Leasehold   of   less   than    two   years   not 

subject    to    redemption    after    sale    on 

execution, §  700a. 
Leasehold,   when   subject   to   redemption 

after  sale  ~on  execution,  §  700a. 
Presumption   as   to   tenant's    possession, 

§326. 
Rents.     See  Rents. 
Ward,  lease  of  estate  of.     See  Guardian 

and  Ward,  V. 

LARCENY. 

Petit,  justice  has  jurisdiction  of,-§  115. 

LAW.  See  Code  of  Civil  Procedure;  Stat- 
utes. 

Conclusions  of,  erroneous,  vacation  of 
judgment,  §  663. 

Conclusions  of.  See  Conclusions  of  Law; 
Findings. 

Decision  against,  as  ground  for  new 
trial,  §  657. 

Error  in,  as  ground  of  new  trial,  §  657. 

Instructions.     See  Instructions. 

Issues  of,  §§  588-594.     See   Issues. 

Issues  of,  by  whom  tried,  §  592. 

Issues  of,  to  be  first  disposed  of,  §  592. 

Judgment  for  defendant  on  issue  of, 
reference,  when  ordered,  §  636. 

Judgment  for  plaintiff  on  issue  of,  pro- 
ceedings after,  §  636. 

LEASE.       See      Landlord      and      Tenant; 
Rents. 
Infant,    of   property    of.     See    Guardian 
and  Ward,  V. 

LEASEHOLD. 

Execution,  sale  on,  of  lease  of  less  than 

two  years,  absolute,  §  700a. 
When   subject  to  redemption   after  sale 

on  execution,  §  700a. 


INDEX.      VOL.    I.       §§  1-1039, 


Ixv 


LEGISLATIVE  ACTS. 

By    tminifipality,   not   enjoined,  §  52G. 

LEGISLATURE. 

('onlinuaiice  because  of  attendance  of 
party,  witness,  or  attorney  on  legis- 
lature, §  59."). 

Extension  of  time  during  attendance, 
§  1054. 

Impeachment, §5  36-39.  See  Impeach- 
ment. 

LELAND     STANFORD     JUNIOR     UNI- 
VERSITY. 

Admission  to  practice  law  on  diploma 
from,  §  2S0b. 

LETTER  OF  ATTORNEY.     See  Power  of 
Attorney. 

LETTERS  PATENT.     See  Patent. 

LEVEE  DISTRICTS. 

Disqualification  of  judge  or  justice  in 
actions  in  relation  to,  and  proceedings 
on,  §  170. 

LEVY.     See  Execution. 

LIBEL. 

Answer,  §  461. 

Complaint,  §  460. 

Justification,  §  461. 

Ijimitation   of   action   for,  §  340. 

Mitigating    circumstances,    evidence    of, 

§461. 
Pleading  in  actions  for,  §§  460,  461. 

LIBRARY. 

Exempt   from   execution,  §  690. 

LICENSE. 

Attorney's,  §§  277-281. 
.Jurisdiction    of    justice's    court    of    suits 
for  collection   of,  §  103. 

LIEN. 

Action  to  foreclose,  in  justice's  court, 
summons  may  be  served  out  of  county, 
§  848. 

Action  to  foreclose,  on  realty,  where 
brought,  §§  78,  392.  See  Foreclosure 
of  Mortgage. 

Appeal  lies  from  interlocutory  judgment 
in  action  to  redeem,  §  963. 

Attachment,  ceases  when  judgment 
stayed  on  appeal,  §  671. 

Attachment  of,  §  542a.  See  Attach- 
ments, IV. 

Death,  judgment  after,  not  a  lien,  §  669. 

Defendant's,  pleading,  in  partition,  §  758. 

Dismissal  in  action  to  enforce,  failure 
to  serve  and  return  summons,  §  581a. 

Interlocutory  judgment  in  action  to  re- 
deem, time   for   appeal,  §  939. 

Judgment  after  death,  not  to  be  a, 
§  669. 

.Judgment,  effect  of  appeal,  §  671. 

Judgment  in  another  county,  when  tran- 
script filed  there.  §  674. 

Judgment,  when  begins  and  when  ex- 
pires, §§  671,  674. 


LIEN.      (Continued.) 

Justice,  judgment  of.  lien  of,  §  900.     See 

.Justices'  Courts,  XX. 
Justice's    court,    action    to    enforce,    in. 

§  113. 
Justice's  judgment  a  lien  on  realty  when, 

§900. 
Partition.     See  Partition. 
Place  of  trial  of  suit  to  foreclose,  §  392. 
Realty,   action    to   enforce    lien    against, 

to  be  brought  in  county  where  land  is, 

§  78.     _ 
Redemption  from,  note  of  record,  to  be 

produced,  §  705. 
Redemption  from,  procedure,  §  705. 
Redemption,  lienor   ma.y   redeem,  §  7';l. 
Redemptioner     must     pay     what,  §5  7C2, 

703. 
Vessels,  on,  §  813.     See  Shipping. 

LIFE  ESTATE. 

J^artition.     See  Partition. 
Setting  off  in  partition,  §  770. 
Waste,  liability  of  tenant  for,  §  732. 

LIMITATION  OF  ACTION. 

Absence  from  state,  how  affects  running 
of  statute,  §  351. 

Absence,  leaving  state  after  action  ac- 
crues, effect  of,  §  351. 

Account,  action,  when  accrues,  §  344. 

Account,  mutual,  open  and  current, 
§§337,344. 

Account,   open   book-account,  §  337. 

Acknowledgment  must  be  in  writing, 
§360. 

Action  already  commenced  not  affected 
by  statute,  §  362. 

Action  barred  before  code  takes  effect, 
§  362. 

Action  barred  by  foreign  statute,  §  361. 

Action  barred,  not  affected  by  statute, 
§362. 

Action  can  only  be  commenced  within 
times  prescribed  in  codes,  §312. 

"Action"  includes  special  proceeding, 
§  363. 

Action,  when  commenced,  §  3.50. 

Action  commenced  before  code  takes 
effect,  §  362. 

Actions  for  relief  not  specifically  pro- 
vided for,  §  343. 

Actions  other  than  for  recovery  of 
realt.v,   limitations   generally,  §  335. 

Administrators  or  executors,  actions  by 
and  against,  §  353. 

Adverse  possesssion.  See  Adverse  Pos- 
session. 

Aliens,  effect  of  war,  §  354. 

Answer,  how  pleaded,  §  458. 

Appeal,  time  for  taking,  §  939. 

Appeals,  reversal  on,  time  for  commenc- 
ing new  action,  §  355. 

Assault,  for,  §  340. 

Assessment,  action  to  recover  stock  sold 
for,  §  341. 

Assessment  under  local  improvement, 
contest  of.  §  349. 

Bail  bond,  §  340. 


Ixvi 


INDEX.       VOL.    I.       §§  1-1059. 


LIMITATION  OF  ACTION.    (Continued.) 
Bank^     pavment    of     forged    or     raised 

cheek,  §340. 
Banks,  deposits  in,  §  348. 
Battery,  §  340. 

Bond  in  criminal  action,  §  340. 
Book-aceount,  open,  §  339. 
Building  and  loan  associations,  no  limi- 
tation to  recover  deposits  in,  §  348. 
Burden    of    proving    action    is    barred, 

§  458. 
Cases  not  specifically  provided  for,  §  343. 
Cheek,    payment    of    forged    or    raised, 

§  340. 
City,    action    against,    for    damages    by 

mob    or   riot,  §  340. 
Claim  and  delivery,  §  338. 
Code,    actions    can    only    be    commenced 

within  times  prescribed   in,  §  312. 
Code,     actions     already     commenced     or 

barred  not  affected  by,  §  362. 
Code,  effect  of,  on  existing  statute,  §  9. 
Code,   time   already   run   at   passage    of, 
deemed  part  of  limitations  prescribed 
by,  §  9. 
Conflict  of  laws  as  to,  §  361. 
Constable,  against,  §§  339,  340. 
Contest    of   assessment    under   local    im- 
provement act,  §  349. 
Contract    not    founded    upon    instrument 

in  writing,  §  339. 
Contract,  written,  executed  out  of  state, 

§339. 
Contracts,  not  in  writing,  §  339. 
Conversion,  §  338. 
Coroner,  against,  §  339. 
Corporation,  action  to  recover  stock  sold 

for   delinquent   assessment,  §  341. 
County,    on    claim    against,    rejected  by 

supervisors,  §  342. 
Criminal   action,   undertaking    given    in, 

§  340. 
Current  account,  §  344. 
Damages  for  death,  §  340. 
Damages  for  seizing  or  detaining  prop- 
erty by  tax-collector,  §  341. 
Death,  §  340. 
Death    of    party,    action    by    or    against 

representative,  §§  353,  355. 
Death  of  party,  effect  of,  §§  353,  355. 
Depositor,  action  for  payment  of  raised 

or  forged  check,  §  340. 
Deposits     in     bank     or    trust     companv, 

§  348. 
Detinue,  §  338. 
Directors,     for     penalty     or     forfeiture, 

against,  §  359. 
Disabilities,  absence  from  state,  §  351. 
Disabilities  affecting  operation   of   stat- 
ute, §§  328,  352,  354. 
Disabilities,  effect  of  two  or  more,  §  358. 
Disabilities,    injunction    staying    action, 

effect  of,  §  356. 
Disabilities,  statutory  prohibition  of  ac- 
tion, effect  of,  §  3.56. 
Disability    must    exist    when     action    ac- 
crues, §  357. 
Entrv   on   land,   within   what   time   must 
be^made,  §  320. 


LIMITATION  OF  ACTION.    (Continued.) 
Escape,  §§339,  340. 
Execution  from  justice's   court,   time  to 

issue,  §  901. 
Execution,    non-payment  of    money   col- 
lected  on,  §  339. 
Execution  on  barred  judgments,  §  685. 
Execution,  time  to  issue,  §§  6S1,  685. 
Existing   causes    of   action   not    affected 

by,  §  362. 
Extension  of  time,  in  general,  §  1054, 
False   imprisonment,  §  340. 
Five  year  limitations,  §§  336,  347. 
Four  year  limitations,  §§  337,  343, 
Foreign  statute  of,  bar  of,  §  361. 
Forfeiture,  for,  §§  ?38,  340,  359. 
Fraud,  §  338. 
Fraud,     statute,     when     begins   to     run, 

§338. 
Grantee  of  state,  action  by,  §  316. 
Grant,  void,  by  state,  action  to  recover 

property, §  317. 
Hospital     dues,     actions    by     state    for, 

§345. 
Imprisonment,  effect  on,  §§  328,  352. 
Infant,  effect  of  statute  on,  §§  328,  352. 
In  general,  §  312. 

Injunction  staying  commencement  of  ac- 
tion, effect  of,  §  356. 
Insanity,  effect  of  statute,  §§  328,  352. 
Judgment  barred  by,  execution  on,  §  685. 
Judgment  of  Federal  court,  §  336. 
Judgments,  §  336. 
Landlord    and    tenant,    relatioin    of,    as 

affecting,  §  326. 
Leaving     state     after     action     accrues, 

§351. 
Liability  created  by  statute,  §  338. 
Libel,  for,  §  340. 
Liens  on  vessels,  §  813. 
Loan  society,  against,  §  348. 
Local    improvement    act,    contest    of   as- 
sessment under,  §  349. 
Lunatic,  concerning,  §§  328,  352,   1272. 
Married    women,    effect    of    statute    on, 

§352. 
Mesne  profits  of  realty,  §  336. 
Mistake,  §  338. 
Mistake,    statute,    when    begins    to   run, 

§338. 
Mob   or   riot,  for,   against   municipality, 

§340. 
Mortgage,  action  to  redeem,  §  346. 
Mortgage,  where  several  mortgages,  and 

some  not  entitled  to  redeem,  §  347. 
Municipality,  contest   of   assessment  by, 

under   local   improvement   act,  §  349. 
Mutual  account,  on,  §  344. 
Negligence,    damages   for   death     caused 

by,  §  340. 
Negligence,  injury,  because  of,  §  340. 
New  promise  must  be  in  writing,  §  360. 
Obligations  in  writing,  §§  337,  339. 
Obligations  not  in  writing,  §  339. 
No    provision    for,    running    in    case    of, 

§  343. 
Officer,  against,  §§  339  341. 
Officer,  for  escape,  against,  §§  339,  3^0. 


INDEX,     vol.,  I.     ;^^  1-1059. 


Ixvii 


LIMITATION  OF  ACTION.    (Continued.) 

Oflicer,  for  money  collected  upon  execu- 
tion, against,  §  '.V69. 

Officer,  for  seizing  goods  for  taxes, 
against,  §  341. 

Officer,  in  relation  to  ]iro[icrty  seized, 
§  841. 

Officer  de  facto,  against,  §  .'41. 

One  year  limitation,  §  .'MO. 

Other  slates,  limitation   hi\v.s  of,  §  361. 

()[)en  account.  §  344. 

Patent  to  land,  §§  316,  317. 

Patentee  of  state,  by,  §§  31G,  317. 

Patentee  of  state,  by,  void  patent,  §  317. 

Penalty,  §§  338,  340,  3;"9. 

People.     See  post,  State,  this  title. 

People,  action  by  state  or  on  behalf  of, 
§  34.3. 

Personal  actions,  limitations  in,  gen- 
erally, §  335. 

Personal  property,  action  for  detaining 
or  injuring,  §  338. 

Personal  property,  tax-collector  seizing, 
§341. 

Pleading  the  statute,  how  done,  §  458. 

Prisoner,  concerning,  §§  328,  352. 

Profits,  mesne,  of  real  property,  §  336. 

Prohibition  of  action,  effect  of,  §  356. 

(^ui  tarn  action,  §  340. 

Keal  property,  action  by  grantee  of 
state,  §§316,  317. 

Real  property,  action  bv  state,  §§  315, 
317. 

Real  property,  action  by  state  to  re- 
cover void  grant,  §  317. 

Real  property,  action  to  redeem  mort- 
gage, §§  346,  347. 

Real  property,  actions  other  than  for 
recovery  of,  limitations  generally, 
§335. 

Real  property,  disabilities  excluded  from 
time  to  commence  actions,  §  328. 

Real  property,  disabilities  not  to  exceed 
twenty  years,  §  328. 

Real  property,  disabilities  suspending 
operation  of,  §  328. 

Real  property,  disabilities,  time  to  sue 
after  ceasing  of,  §  328. 

Real  property,  entry  on,  action  must  be 
brought  within  one  year  thereafter, 
§  320. 

Real  property,  entry  on,  must  be  made 
within  five  years,  §  320. 

Real  property,  mesne  profits  of,  §  336. 

Real  property,  occupation  deemed  under 
legal  title  unless  adverse,  §  321. 

Real  property,  occupation  under  written 
instrument  or  judgment,  when  ad- 
verse, §§  322,  323. 

Real  property,  payment  of  taxes,  §  32-5. 

Real  property,  people,  actions  by,  in 
respect  to, §  315. 

Real  property,  possession  not  under  in- 
strument extends  how  far,  §  324. 

Real  property,  possession  of  part, 
whether  possesssion  of  whole,  §§  322, 
323, 324. 

Real  property,  possession,  presumjition 
as  to,  §  32l". 


LIMITATION  OF  ACTION.    (Continued.) 

lical  projicrt}-,  riglit  of  possession  not 
affeited  l)V  descent  cast,  §  327. 

Real  property,  seisin,  necrissarv  to  main- 
tain or  defend  action,  §§  31S,  319. 

ifeal   [)roperty,  seisin,  rents,  §  319. 

Real  f>roi)erty,  seisin,  within  fi\e  vears, 
§§318,319. 

Heal  property,  trespass  on, §  338. 

Real  property,  what  constitutes  adverse 
possession  under  claim  of  title  not 
written,  §  325. 

Real  property,  what  constitutes  adver.se 
l>nssession  under  written  instrument 
or  judgment,  §  323. 

Redemption  for,  §  346. 

Redemi>tion  where  several  mortgagors, 
some    not    entitled    to   redeem,  §  347. 

Relief  not  otherwise  provided  for,  §  343. 

Rents,  what  seisin  necessary  in  action  or 
defense  arising  out  of,  §  319. 

Rejilevin,  in,  §  338. 

Retroactive,   statute   is   not,  §  362. 

Reversal  of  judgment,  effect  of,  §  355. 

Reversal,  on  appeal,  time  for  aew  action, 
§  355. 

Revival  of  debt,  §  360. 

Riot,  §  340. 

Savings  bank,  deposits   in,  §  348. 

Seduction,  §  340. 

Seisin,  within  five  years  to  recover  pos- 
session of  real  property,  §§  318,  319. 

Sheriff,   against,  §§  339,   340,   341. 

Sister   state,  limitation   laws  of,  §  361. 

Six  months'  limitations,  §§  341,  342. 

Slander,  §  340. 

Special  proceeding  included  under  "ac- 
tion," §  363. 

State,  actions  for  hospital  dues,  §  345. 

State,  actions  generally,  §  345. 

State,  actions  in  name  of,  or  for  benefit 
of,  §  345. 

State,  by,  for  penalty  or  forfeiture, 
§340. 

State,  by  respecting  real  property,  §  315. 

State,  by,  respecting  real  property,  void 
patent,  §  317. 

State,  grantee  of,  action  by,  §  316. 

State,  on  contract  executed  out  of,  §  339. 

State,  on  contract  executed  within, 
§337. 

Statute,  action  on,  §  340. 

Statute,  liability  created  by,  §  338. 

Statutory  penalty  or  forfeiture.  §  340. 

Stock  sold  for  delinquent  assessment, 
§341. 

Stockholders  for  penalty  or  forfeiture, 
against,  §  359. 

Stockholders,  action  to  enforce  liability, 
§  359. 

Summons,  for  issue  and  return   of.  §  581. 

Tax-collector,  for  seizing  goods,  §  341. 

Three  vear  limitations,  5§  338,  345. 

Thirty  "day  limitations,  §  349. 

Time  within  which  an  act  is  to  be  done 
may   be   extended,  §  1054. 

Title  insurance  policy,  action  on  when 
accrues,  §  339. 


Ixviii 


INDEX.     VOL.  I.      §§  1-1059. 


LIMITATION  OF  ACTION.    (Continued.) 
Title    insurauc-e   policy,   action    on   when 

barred, §  339. 
Trespass  on   land,  for,  §  338. 
Trespass  to  personalty,  for,  §  338. 
Trover,  for,  §  338. 
Trust  company,  deposits  in,  §  348. 
Two  year  limitations,  §  339. 
Undertaking     in     criminal     action,     on, 

§340. 
Unwritten   obligation,  on,  §  339. 
Use  and  occupation,  §  336. 
War,   effect   of,   on   running   of   statute, 

§354. 
What  law  governs,  §  362. 
When  action  is  commenced,  §  3.50. 
Where   not  otherwise   specified,  §  343. 
Writing  executed  in  this  state,  §  337, 
Writing  executed  out  of  state,  §  339. 
Writen  obligation  or  liability,  §  337. 

LIS  PENDENS. 

Filing  of,  §  409. 

Filing  of,  in   suit  to   quiet   title,  §§  749, 

751. 
Notice  from,  §  409. 
Partition,  in,  §  755. 
Plaintiff   in    partition    to    record    notice 

of,  §  755. 

LOAN  SOCIETY. 

Limitation  of  actions  against,  §  345^ 

LOCAL  IMPROVEMENT  ACT. 

Limitation  of  action  to  contest  assess- 
ment, §  349. 

LOS  ANGELES  CITY. 

Justice's  clerk  in.     See  Justices'  Courts. 
Justice's  court  in.     See  .Justices'  Courts. 
Justices  of  the  peace  in.     See  Justices' 
Courts. 

LOS  ANGELES  COUNTY. 

Additional  judges,  appointment,  term  of 
office,  and  election,  §  67a. 

Additional  judges,  creation  of  three  for, 
§  67a. 

Additional  judges,  salaries,  §  67a. 

Judgment,  order,  etc.,  of  any  session  of 
court  as  effective  as  if  all  judges  pre- 
sided, §  67a. 

Presiding  judge,  election,  duties,  and  re- 
moval   of,  §  67a. 

Sessions  of  superior  court  of,  §  67a. 

Superior  court,  any  one  or  more  of 
judges  may  hold  court,  §  67a. 

Superior  court,  judgments  and  orders  of 
any  session  as  effective  as  if  all  judges 
presided, §  67a. 

Superior  court,  number  of  judges  of, 
§67a. 

Superior  court,  number  of  sessions  of, 
§67a. 

Superior  court,  presiding  judge,  selection 
and  removal  of,  §  67a. 

Superior  court,  six  additional  judges,  ap- 
pointment, terms  of  office  and  salaries, 
§67a. 

Superior  judges,  number  of,  §§  66,  67a. 


LOST  DOCUMENTS. 

Burnt  records  and  documents.  See 
Burnt  or  Destroyed  Records  or  Docu- 
ments, 

Papers,  how  supplied,  §  1045. 

Summons,  issuance  of  alias,  §  4U8. 

T.UNATIC.     See  Insane  Persons. 


M 

MAGISTRATE, 

Courts  open  any  day  to  exercise  power 
of,  in  criminal  action,  §  134. 

MAIL. 

Notice  of  hearing  in  justice's  court,  ser- 
vice by,  §  850. 
Service   by.     See   Service. 

MAIL-CARRIER, 

Exempt   from   jury    duty,  §  200. 

MAJORITY. 

Arbitrators,    may    act,  §  1053. 

Joint  authority,  majority  may  act,  §  15. 

MALICIOUS  MISCHIEF. 

Justice's     court     has     jurisdiction     over, 
§115. 

MALICIOUS  PROSECUTION. 

Joinder  of  actions,  §  427. 

MANDAMUS. 

Chambers,  supreme   court  justice  not  to 

grant  at,  §  165. 
Superior  court  or  judge  may  issue,  §  76. 
Supreme  court  justice  may  not  grant,  at 

chambers,  §  165. 
Supreme   court   may   issue,  §  51. 
What  courts  may  issue,  §  51. 

MARINERS.     See  Shipping. 

MARITIME  LAW.     See  Shipping. 

MARK, 

Included    in    signature    or    subscription, 

§17. 
Signature   by,   to   be   witnessed   by   two 

persons,  §  17. 

MARRIAGE.     See  Divorce;   Husband  and 

Wife;  Married  Woman. 
Affinity,  meaning  of,  §  17. 
Breach     of     promise,     private     sittings, 

§  125. 
Limitation  of  actions,  effect  of,  on,  §  352. 

MARRIED   WOMAN.     See    Husband   and 
Wife;    Marriage. 

Actions  by  or  against,  husband,  when  to 
be  joined,  §  370. 

Injunction    by,    undertaking    not    neces- 
sary, §  529. 

Limitation  of  actions  in  cases  of,  §  352. 

May  defend  action  against  herself  and 
husband,  §  371, 

May  sue  or  be  sued  alone  when,  §  370. 

Parties,  as,  joinder  of  husband,  §  370. 

Wife    as    party,    husband,    when    to    be   ■ 
joined, §  370. 


INDEX.       VOL.    I.       §§  1-1059. 


Ixix 


MASCULINE. 

Includes    ff'nnnino,   etc,  §  17, 

MASTER  AND  SERVANT. 

Attorney's  fot'.  allowing,  as  costs  in  ac- 
tion for  wages.  §  924. 
Relation.shif)   of,   discjualifies  juror,  §  602. 
Relalionsliij)     of,      ilis(iualifies      referee, 
§  641. 

MATERIAL  ALLEGATIONS.     See  Plead- 
ing. 

MATERIAL  OBJECTS. 

.Turv  may  be  taken  to  view  the  premises, 
§"610." 

McENERNEY    ACT.     See    Burnt    or    De- 
stroyed  Records  or  Documents. 

MECHANICS'  LIENS. 

Projierty  of  mechanic,  exemption  of, 
§  690.' 

MEMORANDUM. 

Of    attached    property,  §§  .545,    54C. 

Of  costs,  on  appeal,  §  10.34. 

Of  costs,  to  be  furnished,  §  1033. 

MENTALLY    INCOMPETENT.     See     In- 
sane Persons. 

MERGER. 

Of  civil  and  criminal  remedies,  §  3'J. 

MERITS. 

Judgments  to  be  on,  §  582. 

MESNE  PROFITS. 

Limitation    of   actions   for,  §  336. 

METES  AND  BOUNDS. 

Description    by,  §  455. 

MILITARY  OFFICER. 

Exempt  from  jury  duty,  §  200. 

MINERS.     See  Mines  and  Mining. 
What  property  of  exempt,  §  690. 

MINES  AND  MINING. 

Action  to  recover  mine,  survey  of  tun- 
nels, shafts,  and  drifts,  §  742. 

Continuance  of  action  in  involving,  to 
do   development  work,  §  595. 

Exemption   of  miner's   property,  §  690. 

Local   rules  govern   actions,  §  748. 

Mining  customs,  proof  of,  in  actions  con- 
cerning mining  claims,  §  748. 

Survey,  entry    under,  §§  742,    743. 

Survey,  liability  for  injury  done  bv, 
§  743. 

Survey,  order  for,  what  to  contain,  and 
how  served,  §  743. 

MINISTER. 

Exempt  from  jury  duty,  §  200. 

MINOR.     See  Infant;  Probation  Officer. 

MINUTES. 

Of    court,    motion    for    new    trial,    when 

made   on,  §  658. 
Of   proceedings   in   justice's   court,  §  93. 

MISCONDUCT   OF  JURY. 

New  trial  for,  §  657. 


MISDEMEANOR. 

Conviction  of  attorney,  certificate  there- 
of  to   supreme   court,  §  288. 

Conviction  of,  removal  of  attorney, 
§§  287,   289. 

•Jurisdiction  of  justices,  §  115. 

Number  of   trial  jury,  §  194. 

MISJOINDER.     See    Parties;    Pleading. 

MISTAKE. 

As  ground  for  relief  from  ilefault  judg- 
ment in  justice's   court,  §  859. 

In  pleading,  amendment  correcting, 
§473. 

Limitation  of  action,  how  affected  bv, 
§338. 

Relief  from  judgment  or  order  on 
ground  of,  §  473. 

MOB. 

Limitation  of  action  against  munici- 
pality for,  §  340. 

MONEY. 

Action    or   counterclaim    for,   verdict   to 

find   amount,  §  626. 
Adverse   claim   to,   action   to   determine, 

§  1050. 
Costs,     allowance     of,     in     action     for, 

§§ 1022,  1025. 
Deposit  in  court.     See  Deposit  in  Court. 
Execution   for,   how   levied,  §  684. 
Execution,  how  carried  into  effect  where 

payable  in  specific  kind  of,  §  682. 
Execution   sale,  notice,  where  judgment 

payable  in  specific  kind  of,  §  692. 
General  or  special  verdict  discretionary 

in  action  for  recovery  of,  §  625. 
Order  for  payment  of,  may  be  enforced 

by   execution,  §  1007. 
Specified  kind  of,  in  judgments,  §  667. 

MONTH. 

Means  calendar  month,  §  17. 

MORTGAGE. 

Accounting  on  redemption  by  one  of 
several  mortgagors,  §  347. 

Adverse  possession  bars  action  to  re- 
deem by  mortgagor,  §  346. 

Appeal  lies  from  interlocutory  judgment 
in  action  to  redeem,  §  963. 

Chattel,  foreclosure,  bond  on  appeal, 
§943. 

Conveyance,  mortgage  not  deemed  to  be, 
whatever  its  terms,  §  744. 

Foreclosure,  action  for,  must  be  brought 
where,  §  392. 

Foreclosure,  appointment  of  receiver, 
§  564. 

Foreclosure  of  chattel,  bond  on  appeal, 
§943. 

Foreclosure  of,  §§  726-729.  See  Fore- 
closure of  Mortgages. 

Interlocutory  judgment  in  action  to  re- 
deem,  time   for  appeal,  §  939. 

Limitation  of  action  to  redeem,  §  346. 

Limitation  of  action  to  redeem,  when 
two  or  more  mortgages,  §  347. 

Place  of  trial  of  suit  to  foreclose,  §  392. 


Jxx 


INDEX.      VOL.    1. 


1-1059. 


MORTGAGE.      (Continued.) 

Purchase-money  in  partition,  mortgage 
for,  §  777. 

Eedemption  by  one  of  several  mort- 
gagors, §  347. 

Eedemption,  note  of  record  to  be  pro- 
duced, §  705. 

Eedemption  of  part  of  premises,  limita- 
tion of  action,  §  347. 

Eedemption,  right  of  action  for,  against 
mortgagee    in    possession.  §  346. 

Satisfaction,  form  of,  §  67.5a. 

Satisfaction,  time  of  entry  of,  §  675a. 

Satisfaction  to  be  entered  after  sale, 
§  675a. 

MOTHER.     See  Parent  and  Child. 
Death  of  child,  may  sue  for,  §  376. 
Injury  of  child,  may  sue  for,  §  376. 
Seduction,   may   sue   for,  §  375. 

MOTIONS.     See   Order. 

Attachment,  to  discharge,  §§  556,  557. 

Defined,  §§  1003. 

Informality,  refused  for,  second  appli- 
cation, §^182. 

Injunction,  to  vavate  or  modify,  §  532. 

Judgment,  to  vacate,  §  663. 

New  trial,  for.     See  New  Trial. 

Notice  of,  copies  of  papers  on  which 
based  to  be  served  with,  §  1010. 

Notice  of,  time  for,  when  served  by 
mail,  §  1005. 

Notice  of,  time  to  be  given,  §  1005. 

Notice  of,  what  to  state,  §  1010. 

Postpone  trial,  to,  for  absence  of  testi- 
mony, §  595. 

Eeference  ordered  on,  in  what  eases, 
§  639. 

Eepetition  of,  second  application  where 
refused  for  informality,  §  182. 

Eepetition  of  where  refused  may  be 
punished   for   contempt,  §  183. 

Eepetition  of  where  refused  prohibited, 
§182. 

Eepetition  permitted  where  refused  for 
informality,  §  182. 

Transfer  of  motion  to  another  judge, 
when  may  be  made,  §  1006. 

Where  to  be  made,  §  1004. 

MULTIPLICITY  OF  SUITS. 

Injunction  to  prevent,  §  526. 

MUNICIPAL    CORPORATIONS. 

Action     by,     transfer     of,     to     another 

county,  §  394. 
Action   by  or  against,  stipulation   as  to 

place  of  trial,  §  394. 
Action  by,  place  of  trial  of,  §  394. 
Assessment  under  local  improvement  act, 

limitation   of   action   to   contest,  §  349. 
Bond,   need   not   give,   in   action,  §§  526, 

1058. 
City  and  county.     See  City  and  County. 
Cutting    or    injuring    trees    in,    damages 

for,  §  733. 
Enjoining  illegal   expenditures  or  waste 

by  officers,  §  526a. 
Funds,    restraining    illegal    expenditure 

of,  §  526a. 


MUNICIPAL  CORPORATIONS.  (Con- 
tinued.) 

Injunction  by,  undertaking  not  required, 
§  529. 

Legislative  act  by,  not  enjoined,  §  526. 
•  Limitation  of  action  against,  for  dam- 
ages by   mob   or  riot,  §  340. 

Limitation  of  action  to  contest  local 
assessment,  §  349. 

Ordinance,  how  pleaded  in  police  court, 
§  929. 

Partition  of  property  included  in  site  of, 
§763. 

Partition  proceedings  affecting  streets, 
§  763. 

Partition,  proceedings  in  where  site  of 
city  or  town  included  within  exterior 
boundaries  of  property,  §  763. 

Service  of  summons  on,  §  411. 

Venue,  change  of,  on  actions  by,  §  394. 

Venue  of  actions  against,  §  394. 

MUNICIPAL  COURT  OF  APPEALS. 

Transfer  of  books,  papers,  and  actions 
to  superior  court,  §  79. 

IVrUNICIPAL  CRIMINAL  COURT. 

Transfer  of  books,  papers,  and  actions  to 
superior   court,  §  79. 

MUSIC  TEACHERS. 

Exemption  of  property  of,  §  690. 

N 

NAME. 

Complaint  mvist  contain,  §  426. 
Fictitious,  suing  party  by,  §  474. 
Summons  must  contain,  §  407. 
Verdict,   each   juror's    must    be    entered, 
§628. 

NATIONAL  GUARD. 

Members  of,  exempt  from  jury  duty, 
§200. 

NATURALIZATION. 

Superior  courts  have  power  of,  §  76. 

NECESSARY  PARTIES.  See  Married 
Women. 

NE  EXEAT. 

Abolished,  §  478. 

NEGLIGENCE.  See  Death;  Injuries; 
Wrongful  Death. 

Action  for  by  husband  and  wife,  conse- 
quential damages  to  husband  recov- 
erable without  separate  statement, 
§427. 

Causing  death,  who  liable,  §§  376,  377. 

Causing  death,  who  may  sue  for,  §§  376, 
377. 

Damages  for  death,  §  377. 

Excusable,  as  ground  for  relief  from  de- 
fault in  justice's  court,  §  859. 

Father  may  sue  for  injury  to  minor  child, 
§376. 

Fire  department,  action  for  damages 
will  not  lie  against,  §  390.  See  Fire 
Department. 

Issues  of  fact,  how  tried  in  action  for 
injuries,  §  592, 


INDEX.       VOL.    I.       §§  1-1059. 


Ixxi 


NEGLIGENCE.      (Continued.) 

Liiinitatiou    of     action    for    damages    for 

death  caused  by,  §  340. 
Place  of  trial  of  action  for,  §  395. 
Eelief  from  judgment  or  order  on  ground 

of  excusable,  §  47;i. 

NEGOTIABLE  INSTRUMENT. 

Assigmiieut  of  hill  or  note,  etiect  on  de- 
fenses, §  36S. 

Attached  to  complaint  or  filed  with 
clerk,  admitted,  unless  denied  under 
oath, §  887. 

Com{)laint  on  in  justice's  court  may  be 
co})y  of.  §  S53. 

Joinder  of  parties  in  suits  respecting, 
§  383. 

Set-off,  cross-demands  deemed  compen- 
sated, §  440. 

Several  actions  on,  costs  and  disburse- 
ments in   case  of,  §  1023. 

Transfer  of,  not  affected  by  set-off,  §  368. 

NEUTER. 

Included  in  masculine,  §  17. 

NEWLY  DISCOVERED  EVIDENCE. 

New  trial,  §  657.     See  New  Trial. 

NEW  MATTER. 

Answer  may   contain,  §  437. 

Answer,   in,   deemed   controverted,  §  462. 

In  answer,  deemed  denied,  §  462. 

NEW  PARTIES. 

Bringing  in,  §  389. 

NEW  PROMISE. 

Effect  on  limitation,  §  360. 

NEWSPAPER. 

Proof  of  publication  of  summons,  §  413. 

NEW  TRIAL. 

Abuse  of  discretion,  §  657. 
Accident  or  surprise,  for,  §  657. 
Affidavit,   motion,   when   made   on,  §  658. 
Affidavits,  motion  on,   counter-affidavits, 

§  659. 
Affidavits,  motion   on,   counter-affidavits, 

power    to    extend    time    to    serve    and 

file,  §  659. 
Affidavits,  motion   on,   counter-affidavits, 

time  to  file  and  serve,  §  659. 
Affidavits,    motion    on,    time    to   file    and 

serve,  §  659. 
Affidavits,    motion    on,    time   to   file    and 

serve,   power   to   extend,  §  659. 
Affidavits,   motion    on,    to    be    filed    with 

clerk  and  served  on  other  party,  §  659. 
Affidavits,    motion    to    be    made    on,    in 

what  cases,  §  658. 
Appeal    from    order   granting,    papers   to 

be  used  on,  §  952. 
Appeal  from  order  respecting,  time  for, 

§  939. 
Appeal  lies  from  order  granting,  §  963. 
Aj)pcal,   reviewing   order   on    motion   for 

new    trial    on    appeal    from    iudgnient, 

§  956. 
Appeal,  review  of  order  on  court's  own 

motion  on,  §  662. 


NEW  TRIAL.     (Continued.) 
Appeals.     See  Appeals. 
Application   for,  when   may  be   made  on 

bill  of  exceptions,  §  058. 
Application  for,  when   may  be  made  on 

minutes  of  court,  §  658. 
Application   for,  when  must  be  made  on 

affidavit,  §  658. 

Bill    of    exceptions,    motion,    when    made 

on,  §  658. 
Bill  of  exceptions  on  motion  for,  may  be 

used  on  a}>peal,  §  950. 
Bill  of  exceptions.     Sec  Exceptions. 
By  order  of  court,  §  662. 
Chance   verdict,  §  657. 
Costs  of  appeal  discretionary  where  new 

trial   granted,  §  1027. 
Court  may  order,  without  ajiplication  of 

parties,  when,  §  662. 
Court's  own  motion,  order  for  new  trial 

on, §  662. 

Damages,  excessive,  §  657. 

Decision  against  law,  §  657. 

Defined,  §  656. 

Discretion,  abuse  of,  §  657. 

Error  in  law,  for,  §  657. 

Evidence,  for  insufficient,  §  657. 

Evidence,  for  newly  discovered,  §  657, 

Excessive  damages,   for,  §  657. 

Fair  trial,  prevention   of,  §  657. 

Grounds  for,  §  657. 

Hearing  of  motion,  time  for,  §  660. 

Hearing  of  motion  to  be  at  earliest  prac- 
tical time,  §  660. 

Hearing  of  motion,  what  pleadings,  or- 
ders and  evidence  may  be  referred  to 
on,  §  600. 

Hearing  on  motion  for,  proceedings 
where  no  report  or  certified  tran- 
script  of  the   evidence,  §  660. 

Hearing  on  motion  for,  precedence  of, 
§660. 

Hearing  on  motion,  if  evidence  not 
transcribed,  reporter  to  attend  aud 
read   notes,  §  660. 

Irregularity    of   proceedings,  §  657. 

.Tury,  for  misconduct  of,  §  657. 

Law,  decision  against,  §  657. 

Minutes  of  court,  motion,  when  made 
on,  §  658. 

Misconduct  of  jury,  for,  §  657. 

Misconduct  of  jury  may  be  shown  by 
affidavits  of  jurors,  §  657. 

Motion  for,  failure  to  decide  within 
three  months  equivalent  to  denial  of 
motion,  §  600. 

Motion  for,  to  be  based  on  what  papers, 
§  658. 

Motion  for  to  be  decided  within  three 
months,  §  660. 

Motion  for  to  be  determined  at  earliest 
practicable  moment,  §  660. 

Motion  for  to  be  made  on  affidavits  in 
what   cases,  §  65S. 

Motion  for  to  be  made  on  minutes  of 
court  in   what  cases.  §  658. 

Newly  discovered  evidence,  §  657. 


Ixxii 


INDEX.      VOL.    I.       §§  1-1059. 


NEW  TEIAL.     (Continued.) 

Notice  of  intention  to  move  for,  time 
for  filing  and  serving  cannot  loe  ex- 
tended, §  659. 

Notice  of  intention  to  move  for,  time  to 
file   and   serve,  §  659. 

Notice  of  intention  to  move  for,  what 
to   contain, §  659. 

Order  for  may  be  made  on  court's  own 
motion,  when,  §  662. 

Order   for  on   court's   own   motion,  §  662. 

Order  preventing  fair  trial,  §  657. 

Papers,   upon   what   motion  based,  §  658. 

Passion  or  prejudice,  on  court's  own  mo- 
tion, for,  §  667. 

Statement,  motion  when  made  on,  §  658. 

Statement  need  not  be  served  on  party 
defaulting  or  not  appearing,  §  650. 

Statement  on  appeal.     See  Statement. 

Statement  settled  after  motion  for,  may 
be  used  on  appeal,  §  950. 

Surprise,  for,  §  657. 

Time  for  appeal  where  proceedings  on 
motion  for  new  trial  are  pending, 
§§  939,  941b. 

Time  to  decide  motion  for,  §  660. 

Time  to  file  notice  of  intention  to  move 
for,  §  659. 

Time  to  hear  motion  for,  §  659. 

Verdict,  chance,  §  657. 

Verdict,  prevention  of,  new  trial  in  case 
of,  f  616. 

When  may  be  granted,  §  657. 

When  verdict  prevented,  §  616. 

NON-JUDICIAL  DAY.     See  Holidays. 

NON-RESIDENT. 

Attachment   of,  §  537. 

Contempt,  §  1015. 

Corporation.     See  Foreign  Corporations. 

Costs,  dismissal  for  failure  to  give  secur- 
ity, §  1037. 

Costs,  new  or  additional  security  for, 
§  1036. 

Costs,  security  for,  may  be  required, 
§  1036. 

Costs,  security  for,  time  to  give,  §  1037. 

Costs,  staying  proceedings  until  security 
filed, §  1036. 

Default  judgment,  proceedings  on,  §  585. 

Partition  affecting,  §§  757,  762,  788,  789. 

Place  of  trial  of  action  against,  §  395. 

Pleadings  of,  by  whom  and  how  verified, 
§  446. 

Publication  of  summons,  §§  412,  413,  757. 

Service   on,  manner   of,  §  1015. 

Subpoenas,  §  1015. 

NONSUIT. 

Affirmative  relief,  effect  of  claim  to  on 
nonsuit  at  instance  of  plaintiff,  §  581. 

Consent  of  party,  on, §  581. 

Counterclaim,  effect  of,  on  nonsuit  at 
instance   of   plaintiff,  §  581. 

Court  may  grant,  when,  §  581. 

Grounds  for,  §  581. 

Merits,  in  what  cases  judgments  to  be 
on,  §  582. 

On  failure  of  party  to  appear,  §  581. 


NONSUIT.      (Continued.) 

On  failure  to  prove  case  for  jury,  §  581. 

On  motion  of  parties,  when  granted, 
§581. 

On   plaintiff   abandoning   action,  §  581. 

Order  granting  or  denying,  deemed  ex- 
cepted  to, §  647. 

Provisional  remedy,  undertaking,  deliv- 
ery to  defendant,  and  action  on,  §  5S1. 

When  may  be  entered,  §  581. 

NOTARY. 

Seals,  records,  and  furniture  exempt, 
§690. 

NOTES.     See   Negotiable   Instruments. 

NOTICE.     See  subject  in  question. 

Administration,  of  application  for  let- 
ters of.  See  Executors  and  Adminis- 
trators. 

Appeal,  of,  §  940. 

Appeal  to  superior  court,  of,  §  974. 

Appearance,  notice  must  be  given  after, 
to  party  or  his  attorney,  §  1014. 

Appearance,  notice  need  not  be  given 
defendant  failing  to  make,  unless  un- 
der arrest,  §  1014. 

Appearance,  notice  of,  §  1014. 

Attached  property,  of  sale  of,  §§  54S, 
550. 

Attached  vessel,  of  sale  of,  §  824. 

Attachment,  notice  of,  motion  to  dis- 
charge, §§  554,   556. 

Attorney,  notice  to  appoint  substitute 
on  death,  removal,  or  suspension, 
§286. 

Attorney,  of  change  of,  §  285. 

Attorney,  substitution  of,  notice  of, 
§285. 

Bill  of  exceptions,  in  settling,  §  650. 

Books,  documents  or  papers,  notice  to 
produce  and  effect  of  refusal,  §  1000. 

Calendar,  restoring  causes  to,  on,  §  593. 

Claim  and  delivery,  in,  when  and  where 
to  be  filed,  §  520. 

Constructive,  lis  pendens,  §  409. 

Death  or  change  of  attorney,  of,  §  286. 

Defective  title,  notice  with,  when  valid, 
§  1046. 

Execution  sale,  of,  §  692. 

Execution  sale,  of,  liability  for  defacing 

or  taking  down,  §  693. 
Execution    sale,    selling    without   notice, 

§693. 
Form  of,  §  1010. 
Form    of   notice   of   hearing    in    justice's 

court,  §  850. 
Hearing,  justice's  court,  §  850.     See  .Jus- 
tice's Courts,  XIV. 
Hearing,  notice  of,  §  594. 
Injunction    against    diversion    of    water, 

notice  of,  §  530. 
Injunction,  dissolution,  notice  of  motion, 

§532. 
Injunction,  notice  of,  §§  528,  531. 
Injunction,    notice    of     applieation    for, 

§§  527,  530. 
Injunction,  preliminary,  notice  of,  §  527. 


INDEX.      VOL.    I.       §§  1-1059. 


Ixxiii 


NOTICE.      (Continued.) 

Inspection  of  writings,  notice  of  demand 
for,  §  1000. 

Judgment  in  justice's  court,  notice 
of  rendition  of,  §  893.  See  Justices' 
Courts,   XX. 

Lien-holders,  to,  to  appear  before  ref- 
eree in  partition,  §  762. 

Lis   pendens,  §  409.     See  Lis  Pendens. 

Mail,  service  by,  time  for,  §  1005. 

Motion,  of,  copies  of  papers  to  be  served 
with,  §  1010. 

Motion,  to,  time  for,  §  1005. 

Motion,  of,  what  to  state,  §  1010. 

Must  be  given  defendant  of  all  proceed- 
ings, after  appearance,  §  1014. 

Need  not  be  given  defendant  not  ap- 
pearing, unless  under  arrest,  §  1014. 

New  trial,  notice  of  settlement  of  bill 
of  exceptions  on,  §  650. 

New  trial,  notice  of  settlement  of  state- 
ment, §  659. 

New  trial,  of  intention  to  move  for, 
§  659. 

Non-residents,  notices,  upon  whom 
served, §  1015. 

Orders  made  without,  how  vacated  or 
modified,  §  937. 

Partition,   of,  §  755. 

Partition  sale,  of,  §  775. 

Eedemption  from  execution,  of,  §  703. 

Eequisites  of,  §  1010. 

Served  how,  §§  1010,  1011. 

Service  of,  time  for,  §  1005. 

Service  of,  §§  1011-1017.     See  Service. 

Service,  time  for,   extension   of,  §  1054. 

Surety,  notice  of  entry  of  judgment 
against,  §  1055. 

Temporary  restraining  order,  notice  of, 
§527. 

Title,  want  of,  or  defective,  effect  of, 
§  1046. 

Time  to  answer  or  amend  runs  from, 
§476. 

Trial  in  justice's  court,  notice  of.  See 
Justices'  Courts,  XIV. 

Trial,  of,  §  594. 

Trial,  of,  when  cause  transferred  to  an- 
other justice's  court,  §  836. 

Vacation  of  judgment,  hearing  of  mo- 
tion, time  for  and  notice  of,  §  6G314. 

Vacation  of  judgment,  time  to  serve  and 
file,  §  6631/2. 

Vacation  of  judgment,  to  be  given, 
§  6631/0. 

What  notices  need  not  be  served  on 
party  defaulting  or  not  apx^earing, 
§650. 

Written,  must  be,  §  1010. 

NUISANCE. 
Abating,  §  731. 

Action   for,   who   may   bring,  §  731. 
Damages  for,  §  731. 
Defined,  §  731. 
Enjoining,  §  731. 
.Tudgment  may  provide  for  enjoining  or 

abating,  §  731. 
Jurisdiction,  superior  court,  §  76. 


NUISANCE.     (Continued.) 

•Jurisdiction,  supreme  court,  §  52. 

Public,  city  attorney  may  sue  to  abate, 
§731. 

Public,  city  attorney,  to  abate,  when 
directed  by  supervisors,  §  731. 

Public,  concurrent  right  of  district  at- 
torney and  city  attorney  to  abate, 
§731. 

Public,  district  attorney  may  sue  to 
abate,  §  731. 

Public,  district  attorney  to  abate,  when 
directed  by  supervisors,  §  731. 

Who  may  sue  for,  §  731. 

NUMBER.     See  Numbers. 

Singular  or  plural  words  in  code,  con- 
struction of,  §  17. 

NTTMBERS.     See  Number. 

Mav  be  expressed  by  figures,  or  numer- 
als, §  186. 

NUMERALS. 

Use  of,  §  186. 

NUNC  PRO  TUNC. 

Papers  filed  nunc  pro  tunc  under  order 
of  court  where  records  destroyed 
effectual,  §  1046a. 


OATH. 

Affirmation,  oath  includes,  §  17. 

Attorney  acting  as  judge  pro  tempore, 
oath   of,  §  72. 

Attorney's,  §  278. 

Commissioner  or  elisor's,  to  sell  encum- 
bered property,  §§  726,  729. 

Court  commissioner  may  take,  §  259. 

Declaration,    oath   includes,  §  17. 

Deputy,  justice's  clerk,  authority  of,  to 
administer,  §  86. 

Includes  affirmation  or  declaration,  §  17. 

Judicial  officers  may  administer,  §§  128, 
177. 

Juror's,  §  604. 

.Tustice's  clerk's,  §  86. 

Justices'  clerks  and  deputies  in  town- 
ships in  counties  of  seventh  class, 
power  to  administer,  §  103b. 

Justices'  clerks  in  townships,  power  to 
administer,  §  103a. 

Particular  officer,  of.  See  particular 
title. 

Phonographic  reporter's,  §  272. 

Power   of   court   to  administer,  §  128. 

Power  of  judicial  officer  to  administer, 
§  177. 

Prisoner's,   on   his   discharge,  §  1148. 

Receiver's,  §  567. 

Who  may  administer,  §§  86,  128,  177, 
259. 

OBJECTIONS. 

Evidence,  rulings  on  deemed  to  be  ex- 
cepted  to,  §  647. 

To  appointment  of  referee,  how  tried, 
§642. 


Ixxiv 


INDEX.       VOL.    I.       §§  1-1059. 


OBJECTIONS.      (Continued.) 

Waived,    if    not    taken    by   demurrer    or 

answer,  §  434. 
When    talten    by   demurrer    or    answer, 

§433. 

OBLIGATION. 

Arises    from    contract    or    operation    of 

law,  §  26. 
Definition,  §  26. 

OFFER  TO  COMPROMISE. 

Generally,  §  997. 

In  justice's  court,  §  895. 

Proceedings  on,  §  997. 

OFFICE.     See  Officer. 

Appeal  from  judgment  that  one  is  usurp- 
ing office  does  not  stay,  §  949. 

Exercise  of  public  or  private  office  not 
enjoined, §  526. 

Repeal  by  code,  §'  7. 

Tenure,  how  code  affects,  §  6. 

Usurpation  of,  §§  802-810.  See  Usurpa- 
tion of  Office  or  Franchise. 

"Vacancy  in  office  of  judge  does  not 
affect  proceedings, §  184. 

Vacancy  in  office  of  justice,  supervisors 
to  fill,  §  111. 

Vacancy  in  office  of  supreme  court,  §  42. 

Vacancy  in  office  of  superior  judge,  §  70, 

OFFICE  HOURS. 

.Tustices  and  deputies,  §  88. 

OFFICER.     See  Office. 

Authority    of    majority,  §   15.     See    Ma- 
jority. 
Bond,  need  not  give,  in  action  of  official 

capacity,  §  1058. 
Contest  of  election.     See  Elections. 
De   facto,   limitation    of   action   against, 

§341. 
Enjoining  illegal  expenditures  or  waste 

by,  §  526a. 
Exempt  from  jury  duty,  §  200. 
Impeachment,  §§  36-39.     See     Impeach- 
ment. 
.Joint  authority,  majority  may  act,  §  15. 
Judgment    against,    conclusive     against 

sureties,  when,  §  1055. 
.Judgment  against,  how  enforced,  §  710. 
.Judicial,  affidavits,  etc.,  taking,  §  179. 
Judicial,    contempt,    power    in    cases    of, 

§178. 
Judicial,    controlling    power    of     courts 

over   proceedings,  §  128. 
.Judicial,  exempt  from  jury  duty,  §  200. 
Judicial,    powers    of    courts,    generallv, 

§  128. 
Judicial,   powers,   etc.,  of,   out   of  court, 

§  176. 
Judicial,   to   have   no  partner  practicing 

law,  §  172. 
I^imitation  of  action  against,  §§  339,  341. 
Limitation  of  action  against,  for  escape 

of  prisoner,  §  340. 
Majority  may  act,  §  15.     See  Majority. 
Ministerial,  powers  of,  prescribed  where, 

§262. 


OFFICER.      (Continued.) 

Oaths,    who    authorized    to    administei, 

§§  86,  128,  177,  259. 
Particular  officers.     See  particular  title. 
Probation.     See   Probation   Officers. 
Replevin,    not     bound     by    affidavit    of 

value  in,  when,  §  473. 
Salaries.     See  Salary. 
Sale  or  bonds  by  officers  for  public  im- 
provements cannot  be  enjoined,  §  526a. 
Secretaries  of  supreme  court,  §§  265,  266. 
Supreme   court,   of,  §§  262,  265,  266. 
Supreme    court,    of,    traveling   expenses, 

§47. 
Usurpation     of     office,  §§  802-810.     See 

Usurpation  of  Office  or  Franchise. 
Venue  of  actions  against,  §  393. 
Verification  not  necessary  where  action 

is  by,  §  446. 
Verification  of  pleading,   when   officer   a 

party,  §  446. 
Taxpayer    can    enjoin    waste    of     public 

money  or  property,  §  526a. 

OFFICIAL  BONDS.     See  Bond. 

OFFICIAL       REPORTER.       See      Phono- 
graphic Reporter. 

OPINIONS. 

Of  supreme  court  to  be  in  writing,  §  49. 

Superior  judge,  cost  of  taking  down  and 
transcribing  chargeable  against  coun- 
ty, §  274a. 

Superior  judge,  may  be  taken  down  and 
transcribed,  §  274a. 

ORAL   INTERROGATORIES.     See    Depo- 
sitions. 

ORDER.     See  Motions. 

Amend,  power  of  court  to,  §  128. 

Appeal  from,  time   for,  §  939. 

Appeal  from,  what  appealable,  §  963. 

Appeal  from,  what  papers  to  be  used 
on,  §§  951,   952. 

Appeal  from.     See   Appeals. 

Appeal  lies  from  special  orders  after 
final   judgment,  §  963. 

Arrest,  §§  478-504.     See  Arrest  and  Bail. 

Chambers,  granting  or  discharge  at, 
§  165. 

Contempt,  disobedience  or  resistance  of, 
§906. 

Court  commissioners,  power  to  hear  and 
make,  §  259. 

Deemed   excepted   to,  when,  §  647. 

Defined,  §  1003. 

Enforcement  of  by  execution,  §  1007. 

Ex  parte  orders,  vacation  and  modifica- 
tion of,  §  937. 

Extra  sessions  of  court,  of,  effect  of, 
§67b. 

Inadvertence,  relief  from,  where  made 
through,  §  473. 

Injunction,  to  show  cause  why  should 
not  issue,  §  530. 

Inspection   of  writings,   for,  §  1000. 

Judgment  roll,  orders  striking  out  plead- 
ing are  part  of,  §  670. 


INDEX.      VOL.    I.       §§  1-1059. 


Ixxv 


ORDER.     (Continued.) 

Jurisdiction   of  justice's  court  over  vio- 
lation, §  io;{. 
Nunc    pro    tunc,    filing    under    effectual, 

in  proceedings  to  establish  title  where 

records   burnt,  §  lU4Ga. 
Out    of   court   and    without    notice,    how 

vacated  or  modified,  §  937. 
Payment    of     money,    for,    enforced    by 

execution,  §  1007.' 
Power  of  judges  to   grant   and  hear,  at 

chambers,  §§  1G5,   16(i. 
Power    of     judicial     officers    to    compel 

obedience   to, §  177. 
<5uo   warranto,   for    arrest   of   defendant 

in, §  804. 
Relief   from,    for    mistake,    surprise,    ne- 
glect, etc.,§  473. 
Removal    of     attorney    for    disobeying, 

§287. 
Repeated  applications,  when  a  contempt, 

§  183. 
Repeated     application     for,    prohibited, 

§§  182,  183. 
Reviewed,   how,  §  936. 
Revocation  of  order  refused  by  another 

judge,  §  183. 
Summons,  for   publication   of,  §  413. 
Staving   execution    of,   power   of   judge, 

§"6813. 
Surprise,  relief  from,  §  473. 
Survey,  for,  §§  742,  743. 
Survey  of  land,  order  for,  in  ejectment, 

§§  742,  743. 
Telegraph,  service  by,  §  1017. 
Transfer  of  order  to  show  cause,  when 

may  be  made,  §  1006. 
Where  may  be  made,  §  1004. 

ORDER  OF  PROOF.     See  Evidence,  XIII. 

ORDINANCE. 

Conditions  precedent  to  rights  under, 
performance  of,  how  pleaded,  §  459. 

How  pleaded,  §  459. 

How  pleaded  in  police  court,  §  929. 

Jurisdiction  of  justice  of  peace,  §  103. 

Violation  of,  trial,  when  by  court  and 
when  by  jury,  §  932. 

ORIGINAL     JURISDICTION.      See      Su- 
perior court;  Supreme  Court. 


PAPERS. 

Lost,  how  supplied,  §  1045. 

Service  of,  §§  1011-1017.     See  Service. 

To  be  furnished  by  appellant  on  appeal, 

§§950,  953a. 
What  may  be  taken  by  jury  on  retiring, 

§612. 
With   defective   title   or   defective   title, 

when  valid,  §  1046. 

PARCENERS.     See  Partition. 

PARENT  AND  CHILD. 

Father    may    sue    for    death    of     minor, 
§  376. 


PARENT  AND  CHILD.     (Continued.) 
Mother  may  sue  for  death  of  child  when, 

§  376. 
Mother    may    sue    for    injury    to    minor 

child   when,  §  376. 
Seduction   of   daughter,  father   may   sue 

for,  §  375. 
Seduction  of  daughter,  mother  may  sue 

for,   when,  §  375. 
Service  of  summons  on  parent  in  action 

against  child,  §  411. 
Who  may  be  sued  for  death  or  injury  of 

minor,  §  376. 

PARTICULARS. 

Bill   of,  §§454,   853. 

PARTIES. 

Abate,  transfer  of  interest  does  not 
cause  action  to,  §  385. 

Abatement  by  death,  etc.,  §  385. 

Absence  of,  order  made  during,  deemed 
excepted  to, §  647. 

Absence  of  party  in  attendance  on  legis- 
lature, continuance   for,  §  595. 

Action  to  be  in  name  of  party  in  inter- 
est, §  367. 

Adding,  §§389,  473. 

Additional,   how   brought  in,  §  389. 

Administrator,   as,  §  369. 

Administrator  or  executor  may  sue  with- 
out  joining   beneficiary,  §  369. 

Adverse  claim,  action  to  determine, 
§§380,  381,  738. 

Amended  and  supplemental  pleadings  to 
bring  in  necessary,  §  389. 

Amendment   changing,  §  473. 

Application  to  be  made  party,  by  inter- 
ested person,  §  389. 

Assignment  of  chose  not  to  prejudice 
defense, §  368. 

Associates  may  be  sued  under  common 
name,  §  388. 

Associates  may  sue  by  common  name, 
§  388. 

Attendance  on  legislature,  postponement 
of  trial  for,  §  595. 

Beneficiaries  need  not  be  joined  when, 
§  369. 

Bills  of  exchange,  joinder  of  parties 
in  action  on,  §  383. 

Change  of,  order  relating  to,  part  of 
judgment   roll,  §  670. 

Child,  parent  may  sue  for  injury  or 
death   of,  §  376. 

Child,  parent  may  sue  for  seduction  of 
daughter,  §  375. 

Claimants  under  common  source  of  title 
may  unite,  §  381. 

Cloud  on  title,   suit  to  remove,  §  381. 

Common  interest,  one  may  sue  or  defend 
for   all,  §  382. 

Consent,  refusal  to  give,  making  one 
a  defendant,  §  382. 

Contracts,  joinder  of  persons  severally 
liable,  §  383. 

Copaiveners,  §§  381,  384. 

Co-tenants,  §§381,  384. 


Ixxvi 


INDEX.      VOL.    1.       §§  1-1059. 


PARTIES.      (Continued.) 

Co-tenants    may    sue    or    defend    jointly 

or  severally,  §  384. 
Co-tenants,  part  may  sue  or  defend  for 

all,  §§381,  384. 
Court  may  order  in  other,  when,  §  389. 
Death    of,    when    not    to    abate     action, 

§385. 
Death   or   disability   of  party,   effect   of, 

§385. 
Death,    substitution     of     representative, 

§  385. 
Death,   who   may   sue   for,  §§  376,   377. 
Defect   of,   demurrer   for,  §  430. 
Defendant,  definition  of,  §  308. 
Defendant  in  action  against  vessel,  §  814. 
Defendant    in    action    to    determine    ad- 
verse claims  to  realty,  §  380. 
Defendants,  proceedings  where  part  only 

served,  §  414. 
Defendant,   improper   joinder   of   person 

as,  place  of  trial,  §  395. 
Defendant,  substitution  for,  §  386. 
Defendants,  those  united  in  interest  to 

be  joined  as,  §  382. 
Defendants,  who  may  be  joined  as,  §  379. 
Defense  by  one,  for  benefit  of  all,  §  382. 
Definition    of    plaintiff    and     defendant, 

§308. 
Designated   as    plaintiff   and    defendant, 

§308. 
Disabilities,  effect  on  statute  of  limita- 
tions.    See  Limitation  of  Actions. 
Disability  of,  when  not  to  abate  action, 

§384. 
Ejectment,    in,    summons     to     unknown, 

§§  750,  751. 
Executors  may  sue  without  joining  bene- 
ficiary, §  369. 
Fictitious  name,  substituting  real  name, 

}  474. 
Fictitious     name,    when     party    may    be 

sued  by,  §  474. 
Fire  department,  actions  for  injuries  by, 

§390. 
Foreclosure,  to,  who  need  not  be  made, 

§726. 
Franchise,   in   action   for   usurpation   of, 

§§  803,  808. 
Guardian  ad  litem,  how  appointed,  §  373. 
Heirs  may  sue  for  wrongful  death,  §  377. 
Husband  and  wife,  §§  370,  371. 
Incompetent,    to     appear     by    guardian, 

§372. 
Infant,  to  appear  by  guardian,  §  372. 
Infants  as.     See  Infant. 
Insane   person,    to    appear    bv    guardian, 

§  372. 
Insane  persons,  as.     See  Insane  Persons. 
Insurers   in   separate      policies    may    be 

joined,  §  383. 
Interest,  in,  when  to  join,  §  382. 
Interest,  real  party  in,  to  sue,  §  367. 
Interpleader,  when  and  how  maintained, 

§386. 
Intervention,    how    and    when   Effected, 

§387. 
Intervention,  who   may   intervene,  §  387. 


PARTIES.      (Continued.) 

Joinder,  improper,  of  defendant,  to  de- 
termine place  of  trial,  §  395. 

Joinder,  married  woman  as  party,  joinder 
of  husband,  §§  370,  371. 

Joinder  of  defendants  in  action  to  de- 
termine adverse  claims  to  real  estate, 
§380. 

Joinder  of  insurers  in  separate  policies, 
§383. 

Joinder  of,  in  suits  respecting  negoti- 
able instruments,  §  383. 

Joinder  of  those  united  in  interest, 
§§  378,   382. 

Joinder  of  those  severally  liable  upon 
same  obligation,  §  383. 

Joinder,  parties  holding  under  a  com- 
mon source   of   title,  §§  381,   384. 

Joinder,  sureties,  §  383. 

Joinder,  trustee  may  sue  without  joining 
beneficiary, §  369. 

Joint  contracts.     See  Joint  Contracts. 

Joint  debtors,  after  judgment,  §  989. 
See  Joint  Debtors. 

Joint  tenants,  §§  381,  384. 

Judge  or  justice  who  is  party  is  dis- 
qualified, §  170. 

Judgment  against  one,  action  to  proceed 
against  others,  §  579. 

Judgment  may  be  for  or  against  one  or 
more  of  the,  §  578. 

Judgment  may  determine  rights  of  par- 
ties as  between  themselves,  §  578. 

Justice's  court,  in,  appear  in  person,  or 
by  attorney,  §  842. 

Landlord,  joinder  of,  as  defendant, 
where  tenant  in  possession,  §  379. 

Legislature,  extension  of  time  during  at- 
tendance on, §  1054. 

Married  woman  as  party,  husband  must 
be  joined  and  when  not,  §  370. 

Married  woman  may  defend  suit 
against  herself  and  husband,  §  371. 

Married  woman  as.  See  Married 
Woman. 

Misjoinder,  demurrer  for,  §  430. 

Mortgage,  in   action  to  redeem,  §  346. 

Names  of,  complaint  to  contain,  §  426. 

Names  of,  summons  to  contain,  §  407. 

Negligence  causing  death  or  injury,  who 
may  sue  for,  §§  376,  377. 

Negotiable  instruments,  joinder  in  suit 
on,  §  383. 

New,  bringing  in,  §§  389,  473. 

Non-joinder,  demurrer  for,  §  430. 

Numerous,  one  or  more  may  sue  or  de- 
fend for  benefit  of  all,  §  382. 

Ofiice,  in  action  for  usurpation  of,  §§  803, 
808. 

One  may  sue  or  defend  for  all  when, 
§  382. 

Other,  court  may  order  in,  §  389. 

Parent  may  sue  for  injury  or  death  of 
child,  §376. 

Parent  may  sue  for  seduction  of 
daughter,  §  375. 

Parent  may  sue  whom  for  death  or  in- 
jury of  child,  §  376. 


INDEX.      VOL.    I.       §§  1-1059, 


Ixxvii 


PARTIES.      (Continuod.) 

Particular  proceeding,  in.  See  particu- 
lar title. 

Pavtition,  in.     See  Partition. 

Place  of  trial  where  person  improi)erIy 
joined  as  defendant,  §  395. 

Plaintiflf,  definition   of,  §  308. 

Plaintiffs,  those  united  in  interest  to  be 
joined  as,  §  382. 

Plaintiffs,  who  may  be  joined  as,  §  378. 

Production   of  books  and  papers,  §  1000. 

Promissory  notes,  joinder  of  parties  in 
actions  on,  §  383. 

Quietinj?  title,  in,  §§  346,  738. 

Quo  warranto,  in,  §§  803,  808. 

Real  part}^  in  interest  to  sue,  §  367. 

Redemption  from  mortgage,  in  action 
for,  §  346. 

Refusal  to  join,  person  made  a  defend- 
ant, 8  382. 

Representative  maj'  sue  for  wrongful 
death, §  377. 

Representative,  substitution   of,  §  38.5. 

Seduction,  who  may  sue  for,  §§  374,  375, 

Service  on,  manner  of,  §§  1010,  1011. 

Striking  out,  §  473. 

Substitution  of,  §§  385,  386. 

Substitution  of  parties  making  claim 
on  defendant,  §  386. 

Substitution  of  successors  in  interest, 
§385. 

Substitution,  where  party  interpleads, 
§387. 

Suit  by  one,  for  benefit  of  all,  §  382. 

Sureties,  joinder  of,  in  suit  on  obliga- 
tion, §  383. 

Sureties  on  same  or  separate  instru- 
ments, joinder   of,  §  383. 

Tenants  in  common,  §§  381,  384. 

Tenants  in  severalty,  §  381. 

Transfer  of  action  does  not  abate  it, 
§385. 

Transfer  of  interest,  action  does  not 
abate,  §  385. 

Trust,  suit  to  establish,  §  381. 

Trustee  may  sue  without  beneficiary, 
§369. 

Trustee  of  express  trust,  who  is,  §  369. 

Trustee  of  express  trust  may  sue  with- 
out joining  beneficiary,  §  369. 

Unknown,  fictitious  name,  §  474. 

Unknown,  in  suit  to  quiet  title,  sum- 
mons to,  §§  750,  751. 

Unmarried  female  may  recover  for  own 
seduction,  §  374. 

Vessel,  defendant  in  action  against, 
§814. 

When  one  or  more  may  sue  or  defend 
for  all,  §  382, 

PARTITION. 

Abstract  of  title,  by  whom  made,  §  800. 
Abstract  of  title,  correction  of,  §  800. 
Abstract  of  title,  court  may  order  party 

to  procure,  when,  §  799. 
Abstract  of  title,  custody  of,  §  799. 
Abstract  of  title,   expense  of,  §  799. 
Abstract  of  title,  generally,  §  799. 


PARTITION.     (Continued.) 

Abstract  of  title,   how   verifie.l,  §  SCO. 
Abstract  of  title,  keeping  for  inspection, 

§  799. 
Abstract    of     title,    notice    of     making, 

§  799. 
Abstract  of  title,   notice  that  it  is  o|)cn 

for  inspection,  §  799. 
Abstract  of  title,  plaintiff  mav  procure, 

§  799. 
Action  for,  when  lies,  §  7.')2. 
Action  for,  who  may  bring,  §  7.")2. 
Action,   where   brought,  §  392. 
Agreement  as  to  shares  on  sale,  filing  of, 

§  790. 
Allotting  and  locating  shares  of  jiartics, 

§764. 
Allowance   for    action     brought     or     de- 
fended by  one,  §  798. 
Allowance  of  expenses  paid  by  one  ten- 
ant, §  798. 
Answer,    admission     bv    failure    to    file, 

§  758. 
Answer  in,  what  to  contain,  §  758. 
Appeal  from  order  respecting,  time  for, 

§939. 
Appeal  lies  from  what  orders  respecting, 

§963. 
Attorney,   appointment   of,   on   death   or 

disability  of  party,  §  763. 
Attorney   appointed   to   represent    party 

allowed   reasonable  compensation   tax- 
able as  costs,  §  763. 
Attorneys'  fees,  costs  include,  §  796. 
City   included    in    property,   proceedings 

in  case  of,  §  763. 
Compensation    of     tenant   whose     estate 

has  been  sold,  §  778. 
Compensation    of     tenant    whose     estate 

sold,  court  may  fix,  §  779. 
Compensation,    when    unequal     partition 

ordered, §  792. 
Compensatory   adjustment,  §  792. 
Complaint  in  case  of  unknown  party  or 

interest,  §  753. 
Complaint    must    set    forth   interests    of 

parties,  §  753. 
Complaint    must    set    forth    what    facts, 

§  753. 
Complaint,  where  interest  is  unknown  or 

contingent,  §  753. 
Complete,   when   impracticable,   proceeil- 

ings   on,  §  760. 
Contingent  interest,  protection  of,  §  "SI. 
Conveyance    by    co-tenant    pending    at- 

tion,  effect  of,  §  766. 
Conveyances    to    be    executed     on     con- 
firmation of  sale,  §  785. 
Conveyances  to  be  recorded,  §  787. 
Conveyances,  who  are  barred  bv,  §  787. 
Costs,"abstract  of  title,  §§  799,  800. 
Costs  include   attorneys'  fees,  §  796. 
Costs,  interest  on.  §  801. 
Costs,  judgment  for,  how  enforced,  §  79<J. 
Costs,   lien   on   undivided   share,   subject 

to, §  769. 
Costs    may    be    included    in     judgmei.1, 

§  796. 


lx> 


XVlll 


INDEX.       VOL.    1. 


i§  1-1059. 


PARTITION.      (Continued.) 

Costs  of,  a  lien  on  shares  of  parceners, 
§  796. 

Costs  of,  application  of  proceeds  of  sale 
to,  §  771. 

Costs  of  litigation  between  parties,  pay- 
ment of,  §  796. 

Costs  of  previous  litigation,  incurred  by 
one  tenant,  §  798. 

Costs  of  pjroceedings,  apportionment  of, 
§§  768,  769. 

Costs  of.  when  restricted  to  certain  par- 
ties, §  796. 

Counsel  fees  a  lien  on  shares,  §  796. 

Counsel  fees,  incurred  by  one  tenant, 
§798. 

Death  of  party,  effect  on  the  judgment, 

§  766. 
Death  or  disability  pending,  proceedings 

on, §  763. 
Death    pending     proceedings,    effect    of, 

§766. 
Disbursements,   interest  on,  §  801. 
Dismissal,    failure    to    serve   and    return 

summons,  §  581a. 
Division  of  propertv  must  be  made  how, 

§  764. 

Encumbered  property,  application  of 
proceeds, §  771. 

Estate  for  life  or  years,  tenant  of,  com- 
pensation awarded  to,  §  778. 

Estate  for  life  or  years,  tenant  of,  pro- 
ceedings on  refusal  to  accept  com- 
pensation, §  779. 

Estate  for  life  or  years,  unknown  tenant 
of,  protection  of,  §  780. 

Estate  for  life,  when  may  be  set  off  in 
property  not  sold,  §  770. 

Estate  for  years,  when  may  be  set  off 
in   property  not  sold.  §  770. 

Expenses,  abstracts  of  title,  §§  799,  800 

Expenses,  interest  on,  §  801. 

Expenses  of,  how  apportioned,  §§  768 
769,  771. 

Expenses  of  litigation  between  parties 
payment  of,  §  796. 

Expenses  of  litigation  paid  by  one  ten 
ant,  for  common  benefit,  allowance  of 
§798. 

Fees,  apportionment  of,  §§  768,  798. 
Future  interests,   court    must    ascertain 

and  secure,  §  781. 
Future  interests,  how  protected,  §  781. 
Guardian    cannot    purchase,    except    for 

ward,  §  78.3. 
Guardian      mav     receive      proceeds     of, 

§§  793,  794.  " 
Guardian  of  person  under  disability  may 

consent  to  and  execute  releases,  §  ~9~). 
Guardian   receiving  procee<ls,   must   give 

undertaking,  §  794. 
Improvements,  apportionment  of.  §  764. 
Improvements,  appraisement  of,  §  763. 
Improvements   by   tenant,    rights    where 

site  of  city  included  in  property,  §  763. 
Improvements  by  co-tenant,  value  of  to 

be  excluded,  §  764. 


PARTITION.      (Continued.) 

Improvements  to  be  excluded  from  valu- 
ation in  making  allotments,  §  764. 

Improvements,  in  partition  of  site  of 
town  or  city,  prior  right  of  purchase 
of,  §  763. 

Infant,  consent  by  guardian  to  partition 
and  release  by,  §  795. 

Infant,  securities  for  share  of,  §  777. 

Infant's    share,    payment     to     guardian, 

§§  793,  794. 
Infant's   share,   taking  securities   for   in 

name  of  guardian,  §  777. 
Infant,  unequal  partition,  compensation, 

§792. 
Insane   person,   consent   by   guardian   to 

partition  and  release  by,  §§  795,   1772. 
Insane   person,  payment   of  share   of,   to 

guardian, §  794. 
Insanity  of  person,  pending,  proceedings 

on, §  763. 
Interest  on  disbursements,  §  801. 
Investment   of  proceeds   of  unknown   or 

absent  owner,  §§  788,  789,  791. 
Judgment  in,  binds  whom,  §§  766,  767. 
Judgment  in,   effect   of   death   of   party, 

§  766. 
Judgment  in,  not  to  affect  what  tenants 

for  years,  §  767. 
Judgment    confirming   report,    protection 

of  rights  of  persons  not  in  bein^,  §  766. 
Judgment    on    report    of    referee,    upon 

whom  binding,  §  766. 
.Judgment   on   report   of   referee,   conclu- 
siveness of,  §  766. 
Judgment  to  be  entered  on  confirmation 

of  report  of  referee,  §  766. 
Lien,  appointment  of  referee  to  incjuire 

into, §  761. 
Lien,    notice    to    be    given    of,    on    sale, 

§775. 
Lien    of     defendant,    answer     must     set 

forth, §  758. 
Lien  on  undivided  interest  a  charge  on 

share  assigned  such  party,  §  769. 
Lien  on  undivided  share  subject  to  costs, 

§769. 
Lien,  proceeds  of  sale  to  be  applied  to 

discharge  of,  §  771. 
Lien-holder  holding  other  securities,  pro- 
ceedings in  case  of, §  772. 
Lien-holders    must    be    made    parties,    or 

referee  appointed  to  determine  rights, 

§761. 
Lien-holders   not   of  record   need   not   be 

made  parties,  §  754. 
Lien-holders,    notice    to    appear    before 

referee,  §  762. 
Lien-holders,     notice     to     appear,     how 

served,  §  762. 
Lien-holders,  notice  to,  where  absent  or 

residence    unknown,  §  762. 
Lien-holders,    purchase    by,    proceedings, 

§786. 
Lis    pendens,    plaintiff   to    record    notice 

of,  §  755. 
Lunatic's  estate,  §§  792,  794,  795. 


INDEX.      VOL.    1.       !^>^  1-lUr/J. 


Ixxix 


PARTITION.     (Continued.) 

Mortgaged  property,  application  of  pro- 
ceeds of,  §  771. 

Must  be  according  to  rights  of  parties 
as   determined   by   court,  §  764. 

Non-residents  claiming  lien,  notice  to 
appear,  how  served,  §  7C2. 

Non-residents,  service  on,  by  publication, 
§757. 

Notice   of,  §  75o. 

Partial,  jtrocecdings  in,  §  760. 

Partial,  when   to  be  ordered,  §  760. 

Parties,  death  or  disability  of,  pending 
the   action,   proceedings   on,  §  76.'5. 

Parties,  lien-holders  must  be  made,  §  761. 

Parties,  non-resident,  service  by  publi- 
cation, §  757. 

Parties,  ordering  in  lien-holders,  §  761. 

Parties,  purchasers  and  lien-holders  not 
of  record  need  not  be  made,  §  754. 

Parties,  rights  of  all,  may  be  ascer- 
tained, §  759. 

Parties,  unknown,  rights  of,  may  be  con- 
sidered  together,  §  759. 

Parties,  unknown  owners,  rights  of  to  be 
considered,  §  759. 

Parties,  unknown,  service  by  publica- 
tion, §  757. 

Payments  by  one  tenant  for  common 
benefit,  allowance  of,  §  798. 

Place  of  trial  of  suit  for,  §  392. 

Proceedings  where  party  dies  or  beconu>s 
incompetent,  §  763. 

Proceedings  where  site  of  city  or  town 
included  within  interior  limits  of  prop- 
erty, §  763. 

Proceedings  when  lien-holder  purchases, 
§786. 

Proceeds,  agreement  as  to,  and  proceed- 
ings on,  §  790. 

Proceeds  belonging  to  unknown  or  ab- 
sent party,  duty  of  county  clerk  in- 
vesting, §  791. 

Proceeds  belonging  to  unknown  or  ab- 
sent party  invested  in  county  clerk's 
name,  §  789. 

Proceeds  belonging  to  unknown  parties 
or  non-residents  must  be  invested, 
§788. 

Proceeds,  conflicting  claims  to,  proceed- 
ings  on, §  774. 

Proceeds,  deposited  in  court  when, 
§§773,' 774. 

Proceeds,  distribution  of,  §§  771,  773, 
785. 

Proceeds,  distribution  of,  party  holding 
other  securities  may  be  compelled  to 
exhaust,  §  772. 

Proceeds,  guardian  of  infant  or  lunatic 
may  receive,  §§  793,  794. 

Proceeds,  how  disposed  of  to  protect 
future  interests,  §  781. 

Proceeds,  non-residents  or  unknown 
owners  of,  disposition,  §  788. 

Proceeds  of  encumbered  property,  api)li- 
cation  of,  §  771. 

Proceeds,  order  confirming  s°le  may  di- 
rect disposition   of,  §  785. 


PARTITION.      (Continued.) 

Proceeds,  order  directing  investment  of 
share  of  infant,  lunatic,  or  non-resi- 
dent, §  776. 

Proceeds,  payment  into  court,  continu- 
ing cause  to  detemiino  claims,  §  774. 

Proceeds,  taking  testimony  to  determine 
rights,  §  774. 

Keferee  cannot  purchase  at  sale,  §  783. 

Keferee,  new,  court  may  appoint,  §§  763, 
766. 

Eeferee,  single,  powers  of,  §  763. 

Keferee  to  determine  rights  of  lien-hold- 
ers, §  761. 

Keferee  to  determine  rights  of  lien-hold- 
ers, notice  to  appear  before,  §  762. 

Eeferee  to  determine  rights  of  lien-hold- 
ers, notice  to  appear  before,  service 
on  absentees,  §  762. 

Referee  to  determine  rights  of  lien-hold- 
ers, report  of,  §  762. 

Referees,  allotment  and  division  of 
property, §  764. 

Referees,  city  or  town  site,  duty  in  i>ar- 
titioning,  §  763. 

Referees,  duties  of,  in  making  partition, 
§764. 

Referees,  expenses  and  fees  of,  appor- 
tionment of,  §  768. 

Referees,  number  of,  §  763. 

Referees,  one  to  be  appointed,  when, 
§763. 

Referees,  qualifications  of,  §  76;;. 

Referees,  report  may  be  confirmed,  modi- 
fied, or  set  aside,  §  766. 

Referees,  single  referee  may  be  ap- 
pointed by  consent,  §§  763,  797. 

Referees,  single  referee,  powers  and  du- 
ties of,  §  763. 

Referees,  surveyor,  employment  of,  §  764. 

Referees,  three  to  be  appointed,  §  763. 

l^eferees,  when  appointed  to  make,  §  763. 

Report,  appeal  from,  time  to  take,  §  739. 

Report,  confirmation  of,  judgment  on, 
§766. 

Report  may  be  confirmed,  changed,  modi- 
fied or  set  aside,  §§  763,  766. 

Report,  motion  to  confirm,  change,  mod- 
ify or  set  aside,  §  765. 

Report  of  referees,  court  may  affirm, 
modify  or  set  aside,  §§  763,  766. 

Report  of  referees  to  contain  what, 
§§  765,  784. 

Report,  referees,  to  make,  §  765. 

Rights  of  all  parties  may  be  determined, 
§§  759,  774. 

Road  or  street,  setting  apart  portion  for, 
§§  763,  764. 

Road  or  street,  setting  apart  portion 
for,  effect  on  existing  roads  and 
streets,  §  764. 

Sale,  agreement  as  to  shares,  filing  of, 
§790. 

Sale,  auction,  to  be  at,  §  775. 

Sale,  before  ordering,  title  to  be  ascer- 
tained, §  759. 

Sale,  confirmation  of,  conveyances  to  be 
executed, §  785. 


Ixxx 


INDEX.      VOL.    I.       §§  1-1059. 


PARTITION.      (Continued.) 

Sale,  confirmation  or  setting  aside  of, 
§§  784,  785. 

Sale,  conveyance  must  be  recorded  in 
county,  §  787. 

Sale,  conveyance  will  bar  whom,  §  787. 

Sale,  co-tenant  purchasing,  receipt  for 
claim,  §  786. 

Sale,  credit,  court  must  direct  terms  of, 
§776. 

Sale,  encumbered  property,  application 
of  proceeds,  §  771. 

Sale,  future  or  contingent  interests,  pro- 
tection of,  §  781. 

Sale,  guardian  of  infant  or  lunatic  may 
receive  proceeds, §§  793,  794. 

Sale,  guardian  of  infant  party  may  not 
be  interested  in,  §  783. 

Sale,  highest  bidder,  sale  to  be  to,  §  775. 

Sale,  improvements  on  town  site,  ap- 
praisement of,  §  763. 

Sale,  improvements  on  town  site,  prior 
right  of  purchase,  §  763. 

Sale,  increased  bid,  offer  of,  proceedings 
on,  §  784. 

Sale,  increased  bid  to  be  ten  per  cent, 
§784. 

Sale,  lien-holder  purchasing,  receipt  for 
claim,  §  786. 

Sale,  lots  to  be  sold  separately,  §  782. 

Sale,  mortgaged  property,  application  of 
proceeds,  §  771. 

Sale,  new,  when  ordered,  §  784. 

Sale,  notice  of,  and  its  requisites,  §  775. 

Sale  of  site  of  town  or  city,  improve- 
ments, right  of  co-tenant  making  im- 
provements to  purchase,  §  763. 

Sale  of  site  of  town  or  city,  when  or- 
dered, §  763. 

Sale  of  specific  tract  by  tenant  in  com- 
mon, how  such  land  allotted,  §  764. 

Sale,  order  confirming,  to  direct  disposi- 
tion of  proceeds,  §  785. 

Sale,  order  to  direct  investment  of  pro- 
ceeds, §  776. 

Sale,  private,  how  conducted,  §  775. 

Sale,  private,  when  may  be  ordered, 
§775. 

Sale,  proceedings  when  lien-holders  pur- 
chases, §  786. 

Sale,  proceeds  to  be  applied  in  discharge 
of  lien,  §  771. 

Sale,  referee,  no  person  to  be  purchaser 
for  benefit  of,  §  783. 

Sale,  referee  not  to  be  interested  in, 
§783. 

Sale,  purchasers,  who  may  not  be,  §  783. 

Sale,  report  of,  filing,  §  784. 

Sale,  report  of,  referees  must  make, 
§784. 

Sale,  report  of,  requisites  of,  §  784. 

Sale,  return  of,  hearing  and  proceedings, 
§784. 

Sal,  rights  of  all  persons  may  be  ascer- 
tained, §  759. 

Sale,  rights  of  unknown  parties  to  ba 
ascertained, §  759. 


PARTITION.     (Continued.) 

Sale,  securities,  agreement  as  to,  and  re- 
ceipt and  filing  of,  §  790. 

Sale,  securities,  delivery  of  and  receipt 
for,  §  790. 

Sale,  securities,  duty  of  clerk  in  whose 
name  taken,  §  791. 

Sale,  securities  for  purchase-money  for 
share  of  infant,  §  777. 

Sale,  securities  for  purchase-money,  in 
whose  name  to  be  taken,  §§  777,  7St*, 
790. 

Sale,  securities  for  purchase-monty,  ref- 
erees may  take,  §  777. 

Sale,  securities,  in  whose  name  taken, 
§§  789,  790. 

Sale,  securities  taken  by  referee,  distri- 
bution of,  §  773. 

Sale,  setting  aside  of,  §§  784,  785. 

Sale,  tenant  for  life  or  years,  compen- 
sation, consent  to  receive  and  filing 
and  entry  of,  §  778. 

Sale,  tenant  for  life  or  years  entitled  to 
reasonable  compensation,  §  778. 

Sale,  tenant  for  life  or  years,  proceed- 
ings where  consent  to  compensation 
not  given, §  779. 

Sale,  tenant  for  life  or  years,  protection 
of  rights  of,  §  780. 

Sale,  tenant  for  life  or  years,  unknown, 
protection  of  rights  of,  §  780. 

Sale,  terms  of,  order  to  direct,  §  776. 

Sale,  terms  of,  to  be  made  known  at 
time,  §  782. 

Sale  to  be  at  auction,  §  775. 

Sale,  when  may  be  ordered,  §  763. 

Sale,  who  may  not  purchase,  §  783. 

Specific  tract,  of,  conveyed  by  one  ten- 
ant, §  764. 

Summons  must  be  directed  to  whom, 
§756. 

Summons,  publication  of,  description  of 
property, §  757. 

Summons,  service  may  be  by  publication 
when,  §  757. 

Surveyor,  fees  of,  apportionment  of, 
§768. 

Surveyor  may  be  employed,  §  764. 

Tenant  for  life  or  years,  consent  to  com- 
pensation and  filing  and  entry  of, 
§778. 

Tenant  for  life  or  years,  proceedings  on 
refusal   to   accept  compensation,  §  779. 

Tenant  for  life  or  years,  to  receive  rea- 
sonable compensation,  §  778. 

Tenant  for  life  or  years,  unknown,  pro- 
tection of  rights  of,  §  780. 

Tenants  for  years,  when  not  affected 
by,  §  767. 

Townsite,  proceedings  on  partition  of, 
§763. 

Trial,  rights  of  all  parties  may  be  deter- 
mined, §  759. 

Unequal,  compensation  adjudged  in, 
§792. 

Unequal,  compenFation  where  unknown 
owners  or  infants,  §  792. 


INDEX.      VOL.    1.       §§  1-1059. 


Ixxxi 


PARTITION.      (Continued.) 

Unknown      or      unascertained      owners, 

rights,  how  protected,  §§  7G3,  76G. 
Unknown    owners,    court    must     protect, 

§§  763,    780. 
Unknown    owners,   investment     of     pro- 
ceeds, §§  788,  789. 
Unknown  owners  or  interests,  protection 

of  rights  of,  §§  7G3,  780. 
Unknown     owners  ,  unequal     partition, 

compensation,  §  792. 
Unknown  owners,  service  on  may  be  by 

publication,  §  757. 
Vested  future  interests  to  be  protected, 

§781. 
When  action  may  be  brought,  §  752. 
When    property   includes   city   or   town, 

proceedings, §  763. 
Where  action  for,  must  be  brought,  §  392. 
Who  may  maintain,  §  752. 

PARTNERSHIP. 

Judicial  officer  not  to  have  partner  prac- 
ticing law,  §  172. 

Juror,  partner  disqualified  to  act  as, 
§  602. 

Receiver  for,  §  564. 

Referee,  partner  cannot  be,  §  641. 

Suit,   firm  name,  §  388. 

PATENT. 

Limitation  of  actions  by  patentee  of 
state,  §§316,  317. 

Void,  action  to  recover  property,  limi- 
tation of,  §  317. 

PENALTY.     See  Pine. 

Arrest  for,  in  justice's  court,  §  861. 

Arrest  in  action  for,  §  479. 

Defacing  or  taking  down  notice  of  exe- 
cution sale,  for,  §  693. 

Execution  sale,  for  taking  down  notice 
of,  §  693. 

Execution  sale  without  notice,  for,  §  693. 

Justice's  court,  action  to  recover  iu, 
§112. 

Limitation  of  action  on,  §§  338,  340. 

Limitation  of  action  to  recover,  from 
stockholders  and  directors,  §  359. 

Place  of  trial  of  action  to  recover,  §  392. 

Practicing  law  without  license,  for,  §  281. 

Selling  under  execution  without  notice, 
for,  §  693. 

Sheriff,  liability  of,  §  682. 

Venue  of  action  to  recover,  §  393. 

Venue,  offense  committed  on  waters  in 
several   counties,  §  395. 

PENDENCY  OF  ACTION.     See  Lis  Pen- 
dens. 
As  ground  of  demurrer,  §  430. 
Code,  effect  of  on  pending  actions,  §  8. 
Notice   of,  filing   of,  §  409. 
When  action  deemed  pending,  §  1049. 

PENSIONS. 

p]xemption   of,  from   execution,  §  690. 

PEOPLE.     See  State. 

Execution  to  be  in  name  of,  §  682. 
Security,  do  not  give,  §§  529,  1058. 


PERFORMANCE. 

Of     conditions   precedent,   how   averred, 

§§  457,   459. 
Time  of,  of  act,  may  be  extended,  §  1054. 

PERISHABLE  PROPERTY. 

Ajiiieal     fi-orn     judi^incrit    directing    sale 

does  not  stay,  §  949. 
Attachment  of,  property,  how  sold,  §  547. 
Attachment  of,  proceeds  of  sale  of,  duty 

of  sheriff  as  to,  §  547. 
Attachment     of,    proceeds     of    sale     of, 

§  550. 
Notice  of   execution   sale   of,  §  692. 

PERSON. 

Definition  of  injury  to,  §  29. 

Includes  corporation,  §  17. 

Joinder  of  actions  for  injuries  to,  §  427. 

PERSONAL  INJURIES.     See  Negligence. 

PERSONAL  PROPERTY. 

Action  to  foreclose  lien  in  justice's 
court,  summons  may  be  served  out  of 
county,  §  848. 

Action  to  recover,  application  to  be 
made  party,  §  389. 

Action  to  recover.  See  Claim  and  De- 
livery. 

Adverse  claim  to,  action  to  determine, 
§  1050. 

Attachment  of,  manner  of,  §  542. 

Claim  and  delivery.  See  Claim  and  De- 
livery. 

Conflicting  claims  to,  dismissal  for  fail- 
ure to  serve  or  return  summons,  §  581a. 

Execution,  how  subjected  to,  §§  682,  6S4. 

Execution  sale  of,  how  delivered,  §§  698, 
699. 

Execution  sale  of,  manner  of,  §  694. 

Execution  sale  of,  notice,  §  692. 

Includes  what,  §  17. 

Joinder  of  actions  concerning,  §  427. 

Limitation  of  action  for  injury  to,  §  338. 

PESTILENCE. 

As  cause  for  removal  of  court,  142. 

PETITIONS. 

Particular  proceedings,  in.  See  particu- 
lar title. 

PETIT  LARCENY.  . 

.Justice  has  jurisdiction  of.  §  115. 

PHONOGRAPHIC  REPORTER. 

Absent,   clerk   to  take   testimony,  §  lOol. 

Appeal,  to  transcribe  report  of  trial,  for 
purpose  of,  §  953a. 

Appeal,  transcribing  report  of  trial  for 
jiurpose  of,  §  953a. 

Appeal,  transcription  of  record,  duty  of 
reporter,  §  953a. 

Appeal,  transcript  on,  rights  and  duties 
of  reporter  in  relation  to.  See  Ap- 
peals, V. 

Appointment  and  tenure  of  office,  §  269. 

Attention  to  duties  in  person,  §  271. 

Attention  to  duties  in  person,  excuse 
from,  §  271. 


Jxxxii 


INDEX,      VOL.    I. 


1-1059. 


PHONOGRAPHIC      REPORTER.        (Con- 
tinued.) 

Clerk  to  take  down  testimony  where 
there  is  no,  §  1051. 

Compensation  of,  §  274. 

Compensation  of,  how  paid,  274. 

Compensation  of,  right  to  demand  fees 
in  advance,  §  274. 

Competency,  certificate  of,  §  270. 

Competency,  test  of,  270. 

Costs,  taxing  fees  of  reporters  as,  §  274. 

Duties  of,  §  269. 

Duty  to  attend  on  hearing  of  motion  for 
new  trial  and  read  notes,  §  660. 

Examination  of,  as  to  qualifications, 
§270. 

Fees  of,  §§  274,  274b. 

Fees  of,  taxing  as  costs,  274. 

Fees  of,  where  one  temporarily  ap- 
pointed, §  274. 

Fees  of,  who  to  pay,  §  274. 

Instructions  and  opinions,  appointment 
of  reporter  to  transcribe  where  no 
ofiicial  reporter,  274a. 

Instructions  and  opinions,  judge  may  or- 
der transcription  and  charge  cost 
against  county, §  274a. 

Judges  may  order  matter  to  be  taken 
down  and  charged  against  county, 
§  274a. 

Number  of,  §  269. 

Oath  of,  §272. 

Pro  tempore,  oath  of,  §  272. 

Pro  tempore,  fees  and  compensation  of, 
§  274. 

Pro  tempore,  report  of,  prima  facie  evi- 
dence, §  273. 

Pro  tempore  reporter,  official  reporter 
not  to  be  appointed,  unless  transcrip- 
tions are  completed  and  filed,  §  270. 

Pro  tempore,  when  appointed,  §  271. 

Qualifications  of,  and  how  tested,  §  270. 

Reference  to  report  of,  on  hearing  mo. 
tion  for  new  trial,  §  660. 

Report  of,  prima  facie  evidence,  §  273. 

Supreme  court,  for,  provided  for  in  Po- 
litical Code,  §  268. 
Transcript  of  notes,  prima  facie  eovrect, 
§273. 

PHRASES. 

Interpretation  of.  See  Words  and 
Phrases. 

PHYSICIANS. 

Exempt  from  jury  duty,  §  200. 
Exemption  of  property  of,  §  690. 

PLACE  OF  HOLDING  COURT. 

Provisions  respecting,  §§  142-144. 

PLACE  OF  TRIAL. 

Absence  or  disability  of  justice,  trans- 
fer of  action,  §  90. 

Actions  in  wrong  county,  may  be  tried 
there  when,  §  396. 

Affidavit  of  prejudice,  but  one  change 
allowed,  §  170. 

Any  county,  action  may  be  tried  in,  un- 
less change  demanded,  §  396. 


PLACE  OF  TRIAL.      (Continued.) 

Appeal  from  order  on  motion  for  change, 

time  for,  §  939. 
Appeal     lies     from     order     relating     to 

change,  §  963. 
Change     of,     action    by    city   or    county, 

§394. 
Change    of,    affidavit    of    prejudice,    and 

counter-affidavit,  §  170. 
Change  of,  affidavit  of  prejudice,  trans- 
fer of  cause  on, §  170. 
Change   of,  appeal   from   order  does  not 

stay, §  949. 
Change  of,  costs  of,  §  399. 
Change  of,  demand  for,  how  made,  §  396. 
Change  of,  demand  for  when  to  be  made, 

§396. 
Change   of,   disqualification   of  judge   or 

justice,  §§  397,  398. 
Change     of,     disqualification     of     judge 

where  more  than  one  judge  in  county, 

§  170. 
Change  of,  how  made,  §  399. 
Change  of,  in  justices'  courts.     See  Jus- 
tices' Courts,  XII. 
Change  of,  jurisdiction  of  court  to  which 

transfer  made,  §  399. 
Change  of  motion  or  order  may  be  trans- 
ferred to  another  judge  when,  §  1006. 
Change  of,  order  to  show  cause  may  be 

transferred    to    another    judge,   when, 

§  1006. 
Change  of,  power  of  court  to  which  trans- 
ferred, §§  399,  836. 
Change    of,    stipulation  as  to,  in  action 

against  citv,  county  or  city  and  count}', 

§394. 
Change   of,   to  what    court    transferred, 

§398. 
Change  of,  transmission  of  papers,  §  399. 
Change  of  where  brought  by  or  against 

city,  county  or  city  and  county,  §  394. 
Change   of,   where   real   estate   involved, 

transmitting,  filing,  docketing,  and  re- 
cording judgment,  §  400. 
Change  of,  where  justice  prejudiced,  §  90. 
City,  action  by  or  against,  transfer  of, 

§  394. 
City,     action     by     or     against,     where 

brough,  §  394. 
City,  stipulation  as  to  place  of  trial  in 

action  against,  §  394. 
Civil  actions,  general  rules  as  to,  §  392- 

395. 
Claim    and    delivery   in   justice's   court, 

§832. 
County     or     city     and     county,     action 

against,  where  brought,  §  394. 
County    or    city    and    county,    action    by, 

transfer  of,  to  another  county,  §  394. 
County  or  city  and  county,  stipulation  as 

to    place    of    trial    in    action    against, 
§394. 
County   where   cause   of  action   or  some 

part  thereof  arose,  when  to  be  brought 

in,  §  393. 
Death,  of  action  for  wrongful,  §  395. 


INDEX.      VOL.    1,       §§  1-1059. 


Ixxxiii 


PLACE  OF  TRIAL.      (Continued.) 

Defendant  improperly  joined,  effect  of 
on,  §  395. 

Defendant  joined  to  have  trial  in  liis 
county,  §  395. 

Disqualification  of  judge  or  justice  ami 
proceedings  on.  See  Judges;  Superior 
Judge. 

Foreclosure  of  mortgage  or  lieu  on 
realty,  where  brought,  §  392. 

Forfeiture,  action  to  recover,  §  393. 

Forfeiture,  to  recover  for  offense  on 
waters  in  several  counties,  §  393. 

Justice's  court,  place  of  trial.  See  Jus- 
tices' Courts,  XII. 

Lien  on  realty,  venue  of  action  to  fore- 
close, §§  78,  392. 

May  be  changed  when,  §  397. 

May  be  tried  in  any  county,  unless  de- 
fendant objects,  §  396. 

Mortgage,  venue  of  action  to  foreclose 
lien,  §  392. 

Motion  may  be  transferred  to  another 
judge,  when,  §  1006. 

Negligence,  of  action  for  injuries  from, 
§395. 

Non-resident,  when  defendant  is,  §  395. 

Offense  committed  on  lake  or  stream  in 
several   counties,  §  393. 

Office,  act  done  under  or  by  virtue  of, 
§393. 

Officer,  action  against,  §  393. 

Officer,  person  doing  act  by  command  of, 
action  against,  §  393. 

Order  to  show  cause  may  be  transferred 
to  another  judge,  when,  §  §  1006. 

Partition,  suit  for,  §  392. 

Penalty,  action  to  recover,  §  393. 

Penalty,  to  recover  for  offense  on  stream 
in  several  counties,  §  393. 

Quieting  title,  action  to  be  brought  in 
county  where  land  is,  §  78. 

Eeal  property,  actions  concerning,  §  392. 

Eealty,  place  of  trial,  when  property  lies 
in  two  counties,  §  392. 

Eealty,  transfer  of  action  to  another 
county,  proceedings  after  judgment, 
§  400. 

Eesidence,  in  action  for  negligence  or 
death, §  395. 

Eesidence  of  defendant,  when  unknown, 
§395. 

Residence,  when  determines,  §  395. 

Eesidence,  where  defendant  improperly 
joined, §  395. 

Eesidence,  where  defendant  joined  to 
have  trial  in  his  county,  §  395. 

Transfer,  dismissal  of  actions  after  trans- 
fer for  non-payment  of  fees,  §  581b. 

Transfer,  filing  anew  transferred  plead- 
ings without  fee  where  action  dis- 
missed, §  581b. 

Transfer  to  another  court,  costs  of,  §  399. 

Transfer  to  another  court,  manner  of, 
§§  398,  399. 

Transfer  to  another  court,  papers  to  be 
transmitted,  §  399. 

Transfer  when   judge   disqualified,  §  398. 


PLACE  OF  TRIAL.      (Continued.) 

Transferred  cases  respecting  realty,  pro- 
ceedings after  judgment,  §  400. 

Transitory  actions,  §  395. 

Waiver  where  action  brought  in  wrong 
county,  §  396. 

When  defendant  about  to  leave  state, 
§  395. 

Wrong  county,  action  brought  in  may  be 
tried  there  unless  diauge  demanded, 
§  396. 

PLAINTIFF.     See   Parties. 
Pleadings  of,  §  422. 

PLEA.     See  Answer. 

PLEADING.  See  Answer;  Complaint; 
Counterclaim;    Demurrer. 

Account,  how  to  be  stated,  §  454. 

Action  is  commenced  by  filing  complaint, 
§  405. 

Allegations  not  denied,  when  deemed 
controverted, §  462. 

Allegations  not  denied,  when  deemed 
true,  §  462. 

Amended,  filing,  §  472. 

Amended,  service  of,  §  472. 

Amendments,  service  of  on  party  de- 
faulting, or  not  appearing,  §  650. 

Allegations,  material.  See  post,  this 
subject. 

Amended,  to  bring  in  necessary  parties, 
§389. 

Amendment  changing   parties,  §  473. 

Amendment    correcting   mistake,  §  473. 

Amendment,  in  justice's  court.  See  Jus- 
tices' Courts,  V. 

Amendment  of  course,  §  472. 

Amendment  of  course,  filing  and  service 
of,  §  472. 

Amendment,  postponing  trial  in  justice's 
court,  §  874. 

Amendment,  time  for,  when  demurrer 
sustained  or  overruled,  §  476. 

Amendment,  when  variance,  §§  469,  470. 

Amendment  without  costs,  §  470. 

Answer.     See  Answer. 

Bill  of  particulars,  §  454.  See  Bill  of 
Particulars. 

Board,  determination  of,  §  456. 

('ode  prescribes  forms  and  rules  of,  §  421. 

Complaint.     See  Complaint. 

Conditions  precedent,  performance  of, 
§§  457,  459. 

Consolidation  of  actions,  §  1048. 

Construction   of,   to   be   liberal,  §  452. 

Cross-complaint,  §  442.  See  Cross-com- 
plaint. 

Cross-demand,  §§  439,  440.  See  Cross- 
demand. 

Defect  in,  to  be  disregarded  unless  sub- 
stantial rights  affected,  §  475. 
Defendant,  pleadings  of.  §  422. 
Defined.  §  420. 

Demurrer,  §§  430,  431.  See  Demurrer. 
Descrij)tion  of  real  property-  in,  §  455. 
Designation  of  parties  to  actions,  §  308. 


Ixxxiv 


INDEX.      VOL.    I. 


1-1059. 


PLEADING.      (Continued.) 

Determination  of  court,  officer  or  board, 
§456. 

Enlarging  time  for,  §§  473,  1054. 

Error  in,  to  be  disregarded  unless  sub- 
stantial rights  affected,  §  475. 

Extension  of  time  respecting,  §§  473, 
1054. 

Facts,  what  to  be  pleaded,  §  426. 

Fictitious  name,  when  party  may  be  sued 
by,  §  474. 

Filing,  §  465. 

Form  of  action,  but  one,  §  307. 

Form  of,  prescribed  by  code,  §  421. 

Genuineness  of  instrument,  when  admit- 
ted, §§  447,  448. 

Genuineness  of  instrument,  when  not 
admitted,  §  449. 

Heading  defective,  validity  of,  §  1046. 

Inspection  of  instrument,  demand  for, 
and  refusal  of,  §  449. 

Instruments,  genuineness  of,  how  con- 
troverted, §  448. 

Instruments,  genuineness  of,  when  ad- 
mitted, §  448. 

Irrelevant  and  redundant  matter  may  be 
stricken  out,  §  453. 

Issue  not  made  by,  how  tried,  §  309. 

Issues.     See  Issues. 

Items  of  account,  need  not  be  pleaded, 
§454. 

Joined,  what  actions  may  be,  §  427. 

Joint  debtor,  action  against,  after  judg- 
ment, §§  989,  994. 

Judgment  roll,  as  part  of,  §  670. 

Judgments,  §  456. 

Justice's  court,  in.  See  .Justices'  Courts, 
V. 

Libel,  answer  in  action  for,  §  461. 

Libel,  complaint  in  action  f :-,  §  460. 

Limitation,  statute  of,  §  458. 

Lost,  how  supplied,  §  1045. 

Material  allegation  defined,  §  463. 

Material  allegation  not  controverted, 
taken  as  true,  §  462. 

Names  of  pleadings,  §  422. 

Objections  to,  waiver,  §  434. 

Officer,  determination  of,  §  456. 

Ordinance,  §  459. 

Ordinance  in  police  court,  §  929. 

Particulars,  bill  of,  §  454.  See  Bill  of 
Particulars. 

Parties,  §§  367-380.     See  Parties. 

Performance,  §§  457,  459. 

Plaintiff,  pleadings  of,  §  422. 

Private  statutes,  §  459. 

Real  property,  how  described,  §  455. 

Rule  by  which  sufficiency  governed  pre- 
scribed by  code,  §  421. 

Separately  stated,  causes  of  action  to  be, 
§427. 

Separately  stated,  defenses  must  be, 
§441. 

Service  of,  §  465. 

Sham  answer  may  be  stricken  out,  §  453. 

Slander,  answer  in  actions  for,  §  461. 

Slander,  complaint  in  action  for,  §  460. 

Special  issues  not  made  by  pleadings, 
how   tried,  §  309. 


PLEADING.     (Continued.) 

Statute  of  limitations,  §  458. 

Statute,  private,  §  459. 

Striking  out,  order  deemed  excepted  to, 
§647. 

Striking  out,  ordeis  striking  out,  part 
of  judgment  roll,  §  670. 

Striking  out  redundant  and  irrelevant 
matter,  §  453. 

Striking  out  sham  answer,  §  453. 

Subscription  to,  §  446. 

Supplemental,  for  revival  of  judgment, 
§685. 

Supplemental,  in  partition,  §  761. 

Supplemental,  to  bring  in  necessary  par- 
ties, §  389. 

Supplemental,  when  allowed,  §  464. 

Time,  power  of  court  to  extend,  §§  473, 
1054. 

Title,  defective,  or  want  of,  effect  of, 
§  1046. 

Variance,  amendment,  §§  469,  470. 

Variance,  immaterial,  how  provided  for, 
§470. 

Variance,  what  is  not,  but  a  failure  of 
proof,  §  471. 

Variance,  when  material,  §  469. 

Variance.     See  Variance. 

Verification,  affidavit,  §  446. 

Verification,  by  attorney,  §  446. 

Verification,  by  attorney,  what  to  state, 
§446.  _ 

Verification  by  officer  of  corporation, 
§446. 

Verification  by  one  other  than  party, 
§446. 

Verification,  manner  of,  §  446. 

Verification,  party  to  make,  generally, 
§  446. 

Verification,  when  necessary,  §  446. 

Verification,  who  may  make,  when  corpo- 
ration a  party,  §  446. 

Verification.     See  Verification. 

What  constitute  the  pleadings  in  proceed- 
ings against  joint  debtor  after  judg- 
ment, §  993. 

What  pleadings  are  allowed,  §  422. 

Written  instrument  in  justice's  court, 
§886. 

Written  instruments,  §§  447-449. 

Wrongful  death,  action  for,  §  395. 

PLURAL. 

Includes  singular,  §  17. 

POLICE  COURT.     See  Police  Judge. 

Action  in,  commenced  by  filing  com- 
plaint, §  929. 

Answer  may  be  oral  or  written,  §  931. 

Answer,  when  may  be  made,  §  931. 

Appeal,  judgment  of  superior  court  on, 
what  appealable,  §  964. 

Appeal  to  superior  court,  §§  974-980. 
See  Appeals,  XIII. 

Attorney,  license  not  necessary  to  prac- 
tice as,  in,  §  281. 

Attorney  may  practice  without  license 
in  what  courts,  §  281. 

Complaint,  filing,  §  929. 

Complaint  in.  to  be  verified,  §  929. 


INDEX.      VOL.    I.       §§  1-1059. 


Ixxxv 


POLICE  COUET.      (Continued.) 
Complaint   to  contain   what,  §  929. 
Impaneling  jury  in   criminal  case,  Penal 

Code  governs,  §  2')\.  . 

Imj)aneling  jury,  manner  of,  §|^0,  '2')]. 
Jurisdiction,     organization     andltpowers 

provided  for  in  Political  Code,  1 121. 
Jurors  for,  how  summoned,  §§  2;{lj*2;il. 
Ordinance,  how  j)leaded,  §  929.     5 
Ordinance,    violation    of,    how    pleaded, 

§  929. 
Organization,    jurisdiction     and     jiowers 

provided  for  in  Political  Code,  §  121. 
Proceedings    conducted    as    in    justice's 

court,  §  9.').'{. 
Provided  for  in  Polil-ical  Code.  §  121. 
jiecord,  police  courts-  are  not  courts  of, 

§34. 
Seal,  has,  §  147. 
Seal,  form  of,  §  150. 
Summons,  time  for  issuing,  §  930. 
Summons,  time  for  return   of,  §  9.''0. 
Trial,  adjournment,  §  931. 
Trial  by  court,  in  what  cases  will  be  had 

on  violating  ordinance,  §  932. 
Trial  by  jury,  when  defendant  entitled 

to,  on  violating  ordinance,  §  932. 
Trial,  time  for,  §  931. 

POLICE  JUDGE.     See  Police  Court. 

Act  conferring  upon  justice  power  to  act 

as.  ?     '  1,  note. 
May     take     acknowledgment,     affidavit, 

deposition,  §  179. 

POLLING  JURY. 

Right  of,  and  proceedings  on,  §  618. 

POSSESSION. 

Action  involving  possession  of  realty, 
publication  of  summons,  evidence  re- 
quired before  granting  relief,  §  585. 

Adverse,  §§  318  et  seq.  See  Adverse 
Possession. 

Parties  defendant,  who  may  be  joined 
in  action  for,  §  379. 

Personalty,  actions  involving  possession, 
costs  in,  §§  1022,  1024. 

Eealty,  action  to  recover,  costs  of  course 
allowed  where.  §§  1022,  1024. 

Writ  of,  plaintiff  in  action  to  determine 
adverse  claim  may  have,  §  380. 

Writ  of.     See  Assistance. 

POSTPONEMENT.  See  Continuance;  Jus- 
tices' Courts,  XIII. 

Costs  may  be  imposed,  §  1029. 

Mandamus,  on.  §  1090. 

Trial,    §§  595,  596. 

Trial  justice's  court.  §§  873-876.  See 
.Justices'  Courts,  XITI. 

POWER  OF  ATTORNEY. 

To  act  as  counsel  in  justice's  court,  §  96. 

POWERS. 

Particular  person  or  ofTicer,  of.  See  par- 
ticular title. 

PRACTICE.     See  Trial. 

Action,  when  commenced,  §  350. 


PRACTICE.      (Continued.) 

Argument,  bringing  up  case  for,  §  664. 

Bills  of  oxcejition.     See  Exceptions. 

(-'alendar.     See   Calendar. 

Clerk  taking  testimony,  when  no  short- 
hand  reporter,  §  1051. 

Consolidation  of  actions,  when  mav  be 
ordered, §  1048. 

Costs.     See  Costs. 

Error  disregarded,  unless  substantial 
rights  affected,  §  475. 

Issues.     See  Issues. 

Justice's  court,  of.  See  Justices'  Courts, 
XIV. 

Motions.     See  Motions. 

Orders  out  of  court  without  notice,  how 
vacated   or  modified,  §  937. 

Orders.     See  Order. 

Particular  proceedings.  See  particular 
title. 

Power  of  court  where  procedure  not  spe- 
cifically provided, §  187. 

Preference.     See  Preference. 

Special  issues  not  put  in  issue  by  plead- 
ings, trial  of,  §  309. 

Successive  actions,  right  to  maintain, 
§  1047. 

Time,  extension  of,  power  as  to,  §  1054. 

Time.     See  Time. 

Vacancy  in  office  of  judge  does  not  af- 
fect proceedings,  §  184. 

PREFERENCE. 

Appeal,  on.     See  Appeals,  VIII. 

Election  contests,  preference  of,  on  ap- 
peal, §  57. 

Injunction,  hearing  and  trial  on  motion 
for,  §  527. 

New  trial,  preference  of  motion  for,  over 
other  matters,  §  660. 

Probate  appeals,  preference  given  to, 
§57. 

Probate  proceedings,  preference  of  on 
appeal,  §  57. 

PRESCRIPTION.    See  Adverse  Possession. 

PRESENT. 

Includes  future,  §  17. 

PRESUMPTIONS. 

Disputable,  shorthand  notes,  prima  facie 
correct,  §  273. 

PRIEST. 

Exempt  from  jury  duty,  §  200. 

PRIMA    FACIE    EVIDENCE.     See    Evi- 
dence. 

PRIMARY  EVIDENCE.     See  Evidence. 

PRINCIPAL  AND  AGENT.     See  Agency. 

PRINCIPAL  AND  SURETY.     See  Surety. 

PRINTING. 

Inchulod  in  writing,  §  17. 

PRISON. 

State,  officer  or  attendant  of.  exempt 
from  jury  duty,  §  200. 


Ixxxvi 


INDEX.      VOL.    I.       §§  1-1059, 


PRISONER. 

Adverse  possession  against,  §  328. 
Escape,  limitation  of  action  for,  §  340. 
Limitation  of  action  in  case  of  imprison- 
ment, §§  328,  352. 

PRIVATE  SITTINGS. 

fn  certain  cases,  §  12-j. 

PRIVATE  STATUTE. 

How  pleaded,  §  459. 

PROBATE  COURT. 

Appealability  of  orders  of,  §  963. 

Appeals,   preference   given,  §  57. 

Chambers,  power  of  court  at,  §  166. 

Guardian,  appointment  of.  See  Guar- 
dian and  Ward,  1. 

Power  of,  at  chambers,  §  166. 

Preferences  given  to  appeals  in  probate, 
§57. 

Transfer  of  books,  papers,  and  actions 
to  superior  court,  §  79. 

Writs  and  process  necessary  may  be  is- 
sued at  chambers,  §  166. 

PROBATION  OFFICER. 

Appointment,     intention     of     act,  §  131, 

subd.  9. 
Conditions    of  probation,    furnishing    to 

child,  §  131,  subd.  11. 
Conditions    of    probation,    violation    of, 

proceedings  on, §  131,  subd.  10. 
Courts,  in  what  courts  to  serve,  §  131. 

subd.  12. 
Creation  of  office  of,  §  131,  subd.  7. 
Deputies,  appointment  of,  §  131,  subd.  7. 
Deputies,  appointment,  intention  of  act, 

§  131,  subd.  9. 
Deputies,   additional,  serve  without   sal- 
ary, §,  131,  subd.  5. 
Deputies,    additional,    appointment    and 

removal  of,  §  131,  subd.  5. 
Deputies,  allowance  and  payment  of  ex- 
penses, §  131,  subd.  6. 
Deputies,    creation    of    office    of   deputy, 

§  131,  subd.  7. 
Deputies,    duties    and    powers    of,  §  131, 

subd.  8. 
Deputies,  in  what  courts  to  serve,  §  131, 

subd.  12. 
Deputies,  number  of,  §  131,  subd.  5. 
Deputies,  powers  of  peace-officers,  have, 

§  131,  subd.  13. 
Deputies,  removal  of,  §  131,  subd.  7. 
Deputies,  term  of  office,  §  131,  subd.  7. 
Duties  of,  §  131,  subds.  8,  10,  11. 
Examining     into     institutions,      §      131, 

subd.  4. 
Expenses,    allowance    and    payment    of, 

§  131,  subd.  6. 
Inquiry    into    antecedents    of    offender, 

duty,  §  131,  subd.  10. 
Inquiry  into  character,  antecedents,  etc., 

of  person  arrested  and  report  to  court, 
§  131,  subd.  10. 
Number  of,  §  131,  subd.  5. 
Office  of,  creation  of,  §  131,  subd.  7. 
Peace-officers,     have     powers     of,  §  131, 

subd.  13. 


PROBATION    OFFICER.     (Continued.) 

Probation  committee,  appointment  of, 
§  131,  subd.  1. 

Probation  committee,  appointment  of 
officers  and  deputies,  §  131,  subd.  7. 

Probation  committee,  compensation,  act 
without,  §  131,  subd.  3. 

Probation  committee,  institutions,  exam- 
ining into,  §  131,  subd.  4. 

Probation  committee,  institutions,  re- 
port on,  §  131,  subd.  4. 

Probation  committee,  intention  of  act, 
§  131,  subd.  9. 

Probation  committee,  number  of,  §  131, 
subd.  1. 

Probation  committee,  oath  and  qualifica- 
tion, §  131,  subd.  1. 

Probation  committee,  term  of  office,  §  131, 
subd.  2. 

Probation  committee,  vacancies,  how 
filled  and  term  of  appointee,  §  131, 
subd.  2. 

Records,  keeping  and  inspection  of, 
§  131,  subd.  10. 

Recommendation  for  or  against  proba- 
tion, §  131,  subd.  10. 

Rfciiioval  of,  §  131,  subd.  7. 

Report  and  recommendation  on  child, 
§  131,  subd.  10. 

Report  of  violation  of  terms  of  proba- 
tion, §  131,  subd.  11. 

Report  on  child  released  on  probation, 
§  131,  subd.  10. 

Same  committees,  deputies  and  officers 
as  under  Juvenile  Court  Act,  §  131, 
subd.  9. 

Term  of  office  of,  §  131,  subd.  7. 

Terms  and  conditions  of  probation,  §  131, 
subd.  11. 

Violation  of  terms  and  conditions  of  pro- 
bation, report  of,  §  131,  subd.  11. 

PROCEDURE.     See     Pleading;     Practice, 
Trial. 
Particular  court  in.     See  particular  title. 

PROCEEDINGS  IN  REM. 

Judgment  in  action  to  quiet  title,  effect 
of,  §  751. 

PROCESS.     See  Summons. 

Abbreviations,  §  186. 

Amendment  of,  power  of  court,  §  128. 

Chambers,  power  of  judge  at,  to  issue, 
§§  165,  166. 

Contempt,  for  abuse  of,  §  906. 

Defined,  §  17. 

Execution  of,  where  new  county  formed, 
§687. 

How  far  extends,  §78. 

Issuance  and  return  of  in  justices'  courts 
in  townships  of  between  250,000  and 
400,000,  §§  100,  101,  102. 

Issuance,  service,  filing,  etc.,  of,  on  Sat- 
urday afternoon,  valid,  §  10. 

Joint  debtors,  to,  after  judgment,  §§  989- 
991. 


INDEX.       VOL.    I.       §§  1-1059. 


Ixxxvii 


PROCESS.      (Continued.) 

Justices'  clerks  and  deputies  in  town- 
ships in  counties  of  seventh  class,  issu- 
ance and  form  of,  §  10:U). 

Justices'  clerks  in  townships  may  issue, 
§  103a. 

Justices'  courts,  from  duty  of  sheriff  and 
deputy  to  serve,  §  87. 

Justice's  court,  in,  payment  of  fees,  §  91. 

Justice's  court,  may  issue  to  any  part  of 
county,  §  919. 

Justice's  court,  issuance  in,  §  91. 

Justice's  court,  to  be  issued  without 
blanks,  §  920. 

Language  to  be  used  in,  §  185. 

Mistake,  relief  from,§  473. 

Mode  of  carrying  jurisdiction  into  effect, 
§187. 

Power  of  court  to  amend  and  control, 
§128. 

Power  of  judges  at  chambers  to  issue, 
§§  165,  166. 

Return  of,  in  justice's  court,  §§  87,  89. 

Service  by  telegraph,  §  1017. 

Service  of,  must  be  on  party,  §  1015. 

Service  on  associates   in    business,  §  388. 

Service  on  necessary  parties  ordered  in 
by  court,  §  389. 

Service  on  persons  transaction  business 
under  common  name,  §  388. 

Signifies  what,  §  17. 

Superior  court,  process  of,  extends  to  all 
parts  of  state,  §  78. 

Telegraph,  service  by,  §  1017. 

PRODUCTION     OF     DOCUMENTS.     Seo 

Inspection  of  Writings. 

PROFITS. 

From  time  of  execution  to  redemption, 
§  707.  _ 

Mesne,  limitation  of  actions  for,  §  336. 

Holidays,  may  be  issued  and  served  on, 
§76. 

Limitation  of  action,  effect  of  prohibi- 
tion, §  356. 

May  be  issued  or  served  any  day,  §  134. 

Superior  judge  or  court  may  issue,  §  76. 

Supreme  court  justice  may  not  grant  at 
chambers,  §  165. 

Supreme  court  may  issue,  §  51. 

PROMISSORY    NOTES.     See    Negotiable 
Instrument. 
Joinder  of  parties  to  commercial  paper, 
§  383. 

PROOF.     See  Evidence. 

PROPERTY. 

Definition  of  injury  to,  §  28. 
Includes  real  and  personal,  §  17. 
Joinder  of  actions  for  injuries  to,  §  427. 

PROSECUTION. 

Dismissal    for   want    of,   on    court's    own 

motion,  §  583. 
Dismissal    of   action    for    want    of,  §  583. 
Failure  of  plaintiff  to  bring  case  to  trial, 

dismissal,  §  583. 
Notice  of  motion  to  dismiss  inr  want  of, 

§583. 


PRO  TEMPORE  JUDGE.     See  Judges. 

PRO  TEMPORE  REPORTER.     See  Phouo- 

grapliic   K'cpoi  tcis. 

PROVISIONAL  REMEDIES.  S.'e  Arrest 
and  Bail;  Attachment;  Claim  and  De- 
livery; Deposit  in  Court;  Injunction; 
Receiver. 

Dismissal  in  case  of,  delivery  of  bond  to 
defendant,  §  890. 

Dismissal  or  nonsuit,  delivery  of  un- 
dertaking to  defendant  and  action  on, 
§  581. 

PUBLICATION. 

Default,  where  service  by,  procedure, 
§  5S5. 

Judgment-roll,  where  summons  served 
by,  §  670. 

Notice  to  lien-holders,  on  partition,  ser- 
vice of,  by,  §  762. 

Service  or  unknown  or  non-resident  par- 
ties in   partition,  §  757. 

Summons  in  partition,  §  757. 

Summons,  of,  default  for  failure  to  an- 
swer, procedure  in  case  of,  and  relief 
granted, §  585. 

Summons  to  unknown  parties  in  suit  to 
quiet  title,  §  750. 

Summons,  when  and  how  made,  §§  412, 
413.     See  Summons. 

PUBLIC  IMPROVEMENTS. 

Bonds  for,  taxpayer  cannot  enjoin  issu- 
ance on  sale  of,  §  520a. 

PUBLIC  LAND. 

Action   to   quiet   title   to,   against   state. 

See  State. 
Void  letters  patent,  limitation  of  action 

to  recover  land,  §  317. 

PUBLIC  OFFICER.     See  Officer. 

PUBLIC  PROPERTY. 

Exemption  of,  §  690. 

PUBLIC  STATUTES.     See  Statutes. 


QUALIFICATION. 

Sureties.     See    Surety. 

QUALIFICATIONS. 

Justices,   of,  §§  103,   159. 

Receiver,  who  may  not  be  appointed  as, 

§566. 
Referees,  qualifications  of,  §§  640,  611. 
Superior  court,  of  judges  of.  §  157. 
Supreme  court,  of  justices  of,  §  156. 

QUESTIONS  OF  LAW  AND  FACT. 

Issues  of  fact,  how  tried,  §  592. 
Issues  of  fact,  to  be  tried  by  jury,  un- 
less waived,  §  SS2. 
Issues.     See   Issues. 
Law,  to  be  decided  by  court,  §  591. 
Writ  of  possession,  §  380. 

QUIETING  TITLE. 

Action  involving  validity  of  gift  or 
trust  under  wilj,  conclusiveness  of  de- 
termination, §  738. 


Ixxxviii 


INDEX.      VOL.    I.       §§  1-1059. 


QUIETING  TITLE.      (Continued.) 

Action     involving    validity     of     gift    or 
trust     under     will,     will     admissible, 
§  738. 
Action  lies  to   determine   adverse   claim 

in  what  cases,  §  738. 
Action   to   be   brought   in   county   where 

land  is,  §  78. 
Action,  who  may  bring,  §  738. 
Action   by   possessor,   complaint,   allega- 
tions, and  verification,  §  749. 
Action  by  possessor,  cumulative,  remedy 

is,  §  751. 
Action   by   possessor,   default,  judgment 

not  to   be  entered  by,  §  751. 
Action   by  possessor,   effect   of  as  judg- 
ment, in  rem,  §  751. 
Action    by    possessor    for    twenty    years 

lies,  §  749. 
Action    by    possessor,    hearing   and    evi- 
dence, §  751. 
Action   by   possessor,   hearing,   proof   of 
service   of   summons   and  filing   of  lis 
pendens,  §  751. 
Action    by    possessor,    judgment    conclu- 
sive,      notwithstanding       disabilities, 
§  750. 
Action  by  possessor,  judgment  does  not 

affect  state  or  United  States,  §  751. 
Action  by  possessor,  judgment  does  not 

bind  what  interests,  §  751. 
Action   by   possessor,   judgment   in,   and 

conclusiveness  of,  §§  750,  751. 
Action  by  possessor,  judgment,  effect  of 

in  rem,  §  751. 
Action   by  possessor,  jurisdiction,   court 
has,    to    inquire    into    and    determine 
what  questions,  §  751. 
Action    by    possessor,    lis    pendens,    con- 
tents of,  §  749. 
Action   by  possessor,  lis  pendens,   proof 

of  filing,  §  751. 
Action   by   possessor,  lis  pendens   to   be 

filed, §  749. 
Action  by  possessor,  parties  defendant, 

who  to  be  made,  §  749. 
Action  by  possessor,  summons,  form  and 

contents  of,  §  750. 
Action  by  possessor,  summons,  personal 

service  necessary  when  known,  §  750. 
Action  by   possessor,   summons,  publica- 
tion, manner  of,  §  750. 
Action  by  possessor,   summons,   publica- 
tion of,  §  750. 
Action  by  possessor,   summons,   publica- 
tion of,  how  made,  §  749. 
Action   by  possessor,   summons,   publica- 
tion of,  when  authorized,  §  749. 
Action   by  possessor,   summons,   publica- 
tion of,  when  deemed  complete,  §  751. 
Action    by    possessor,    summons,    service 

and  posting,  proof  of,  §  751. 
Action    by    possessor,    summons,    service 

of  afiidavit  as  to,  §  750. 
Action    by    possessor,    summons,    service 
on    unknown    or    nonresident    defend- 
ants, §  750. 
Action   by   possessor,   summons,   time   to 
issue,  §  750. 


QUIETING  TITLE.      (Continued.) 
Action    by    possessor,    unknown    defend- 
ants, action  against,  lis  pendens  to  be 
filed  in  ten  days,  §  749. 
Action    by    possessor,    unknown    defend- 
ants,  how   may   be   described   in   com- 
plaint, §  749. 
Action    by    possessor,    unknown    parties, 

action   lies   against,   when,  §  749. 
Action    by   possessor,    unknown    parties, 
claims  of,  how  determined,  §§  749-751. 

Action  by  possessor,  unknown  parties, 
hearing  of  adverse  claim  and  judg- 
ment, §  751. 

Action  by  possessor,  unknown  parties, 
how   described   in   complaint,  §  749. 

Action  by  possessor,  unknown  parties, 
judgment  by  default  not  entered, 
§751. 

Action  by  possessor,  unknown  parties, 
judgment  conclusiveness  of,  §§  750, 
751. 

Action  by  possessor,  unknown  parties, 
rights    and    liabilities,  §  750. 

Action  by  possessor,  unknown  parties, 
summons,   how   designated   in,  §  750. 

Action  by  possessor,  unknown  parties, 
summons,  how  served,  §  750. 

Action  by  possessor,  unknown  parties, 
summons,  publication  of,  §  750. 

Action  by  possessor,  who  may  bring, 
§749. 

Adverse  claim  to  money  or  property,  ac- 
tion to  determine,  §  1050. 

Adverse  claim,  parties  in  suit  to  de- 
termine, §§  380,    381. 

Conclusiveness  of  determination  of  gift 
or  trust  in  action  to  quiet  title,  §  738. 

Costs,  plaintiff  cannot  recover,  on  de- 
fault or  disclaimer,  §  739. 

Co-tenants  may  unite  in  suit  to  deter- 
mine  adverse   claim,  §  381. 

Default,   costs  not   allowed,  §  739. 

Disclaimer,  costs  not  allowed,  §  739. 

Dismissal,  failure  to  serve  and  return 
summons,  §  581. 

Entry  upon  survey  and  measuiement  of 
property,  §§  742,   743. 

Gift  under  will,  determination  of  valid- 
ity in,  §  738. 

Heirs  or  devisees,  quieting  title  bv, 
§  1452. 

Improvements,  setting  off  against  dam- 
ages, §  741. 

Injunction,  when  granted,  §  526. 

.Jury  trial,  right  to,  §  738. 

Landlord  may  be  joined  as  party  defend- 
ant where  property  in  possession  of 
tenant,  §  379. 

Money  or  property,  action  to  determine 
adverse  claim  to,  §  1050. 

Parties,  §§  379,  738. 

Parties  defendant,  §  380. 

Parties  holding  under  common  source 
may  join,  §  381. 

Party,  application  by  interested  person 
to  be  made,  §  389. 


INDEX.      VOL.    1.       §§  1-1059. 


Ixxxix 


QUIETING  TITLE.      (Continued.) 

Publication  of  summons,  evidence  of 
possession,  what  necessary  before  re- 
lief granted,  §  585. 

Publication  of  summons,  evidence  re- 
quired, where  plaintiff  relies  on  paper 
title,  §585. 

Publication  of  summons,  evidence  re- 
quired where  title  or  possession  in- 
volved where  defendant  does  not  an- 
swer, §  585. 

State,  against.     See  State. 

Survey,  etc.,  of  property,  §§  742,  743. 

Title,  termination,  during  action,  judg- 
ment in  case  of,  §  740. 

Trust  under  will,  determinntion  of  val- 
idity, §  738. 

Tunnels,  shafts  or  drifts,  entry  upon, 
survey  and  measurement  of,  §§  742, 
743. 

Who  may  bring,  §  738. 

Wills,  determination  of  validity  of  gift 
or  trust  under  will  in,  §  738. 

Writ  of  possession,  right  to,  on  recovery, 
§380. 

QUI  TAM  ACTION. 

limitation  of,  §  340. 

QUORUM. 

Arbitrators,  §  1053. 

Majority  may  act  where  joint  authority 
given,  §  15.     See  Majority. 
Keferences,  §  1053. 

Senate  sitting  as  court  of  impeachment, 
quorum  of,  §  36. 

QUO    WARRANTO.     See    Usurpation     of 
Office  and  Franchise. 
Superior  court  or  judge  may  issue,  §  76. 


R 

RAILROAD  COMMISSIONERS. 

Provisions  as  to  reference  in  eminent  do- 
main proceedings  do  not  affect  juris- 
diction of,  §  640. 

RAILROAD    CORPORATION.     See    E ail- 
roads. 

RAILROADS.     See    Railroad    Corporation. 
Exemption  of,  employees  from  jury  duty, 
§200. 

REAL  PROPERTY. 

Acknowledgment  of  conveyance,  any 
judge  or  justice  may  take,  §  179. 

Action  affecting,  landlord  may  be  joined, 
where  tenant  in  possession,  §  379. 

Action  against  state  to  quiet  title  to 
lands  sold  by  state.     See  State. 

Action  involving  title  or  possession,  pub- 
lication of  summons,  evidence  re- 
quired before  granting  relief  on  de- 
fault, §  585. 

Action  respecting,  must  be  brought 
where,  §  392. 

Action  to  determine  conflicting  claims, 
application  to  be  made  party,  §  389. 


REAL  PROPERTY.      (Continued.) 

Action  to  recover,  application  to  be 
made  party,  §  389. 

Action  to  recover,  general  or  special  ver- 
dict discretionary,  §  (J25. 

Action  to  recover,  possession,  costs  of 
courts  allowed   when,  §  1022. 

Action  to  recover.     See  Kjectment. 

Adverse  claim.     See  C^uieting  Title. 

Adverse  possession  of,  §§  318  et  seq. 
See  Adverse  Possession. 

Attachment  of,  duration  and  extension 
of  lien,  §  542a. 

Attachment  of,  manner  of,  §  542. 

Attachment  of,  release,  §  559. 

Claimants  under  common  source  of  titli' 
may  unite,  §  381. 

Cloud  on  title,  parties  in  suit  to  remove. 
§381. 

Co-extensive  with  lands,  tenements  anl 
hereditaments,  §  17. 

Conflicting  claims  to,  dismissal  for  fail- 
ure to  serve  or  return  summons,  §  5S]:i. 

Costs  of  course  in  action  involving  titio 
of    possession,  §§  1022,    1024. 

Co-tenants,  parties  in  suits  concerning, 
§381. 

Defendants  in  action  to  determine  ad- 
verse claims,  §  380. 

Definition  of,  §  17. 

Description  of,  in   pleading,  §  455. 

Ejectment.     See  Ejectment. 

Execution  affecting,  to  issue  to  whom. 
§  687. 

Execution,  how  subjected  to,  §§  682,  684. 

Execution  purchaser  may  recover  for  in- 
jury to,  after  sale  and  before  de- 
livery, §  746. 

Execution  on,  return  of,  §  6S3, 

Execution  sale  of,  how  conducted,  §  694. 

Execution  sale,  injury  to,  after,  §  746. 

Execution  sale  of,  manner  of,  §  694. 

Execution  sale  of,  notice,  §  692. 

Execution  sale  of,  redemption,  701. 

Execution  sale  of,  what  title  passes, 
§  700. 

Executions.     See    Execution. 

Injury  to,  after  execution  sale  and  be- 
fore delivery,  §  746. 

Issues  of  fact,  how  tried  in  action  to  re- 
cover, §  592. 

.Joinder  of  claims  to  recover.  §  427. 

Judgment  after  death  not  lien  on,  §  669. 

Judgment  for  delivery   of,  §  682, 

Judgment  lien  on,  in  another  countv, 
§  674. 

.Judgment  of  justice's  court  a  lien  ou. 
when,  §  900. 

Lien  on,  action  to  foreclose,  where 
brought,  §§  78,  392. 

Limitation  of  actions  respecting.  See 
Limitation    of   Actions. 

Lis  pendens,  filing  of,  in  action  relating 
to, §  409. 

Mortgage  on,  action  to  foreclose,  where 
brought,  §  392. 

Mortgage  on.  See  Foreclosure  of  Mort- 
gages; ifortgages. 


xc 


INDEX.       VOL.    I.       §§  1-1059. 


KEAL  PROPERTY.     (Cr utinued.) 

New  parties  in  action  relating  to,  bring- 
ing in, §  389. 

Parties  in  action  respecting,  §  379. 

Partition   of,  §§  752-801.     See   Partition. 

Party,  application  of  person  to  be  made, 
in   action   respecting,  §  389. 

Place  of  trial  of  actions  concerning, 
§  392. 

Pleadings,  description  in,  §  455. 

Presumptions  as  to  possession  of,  §  321. 

Publication  of  summons  in  actions  in- 
volving, manner  of,  §  749. 

Publication  of  summons  in  actions  in- 
volving, when   authorized,  §  749. 

Quieting  title,  §  738-751.  See  Quieting 
Title. 

Return  of  execution  on,  §  683. 

Suit  to  recover.     See  Ejectment. 

Transferred  cases  concerning,  proceed- 
ings after  judgment,  §  400. 

Trespass  on,  limitation  of  action  for, 
§338. 

Undertaking  on  appeal  to  stay  judgment 
for  sale  or  delivery  of  realty,  §  945. 

REBUTTAL. 

Evidence  in,  §  607. 

RECEIPT. 

For  securities  in  partition  proceedings, 
§790. 

Sheriff's  for  accounts  collected  in  at- 
tachment, §  547. 

RECEIVER. 

Action,  may  bring,  §  568. 

Action  may  defend,  §  568. 

Appeal  from  order  appointing  receiver, 
time  to  take,  §  939. 

Appeal  lies  from  order  appointing,  §  963. 

Appointed,  may  be,  in  what  cases,  §§  564, 
565. 

Attorney,  cannot  be,  when,  §  566. 

Code  sections  governing  appointment, 
powers  and  duties,  §  304. 

Collection  of  debts,  rents,  etc.,  §  568. 

Compromise,  may,  §  568. 

Corporation,  for,  at  whose  instance  ap 
pointed, §  565. 

Corporation,  for,  duties  of,  §  565. 

Corporation,  for,  on  dissolution,  duties 
of,  §  565. 

Corporation,  for,  on  dissolution,  forfeit- 
ure, or  insolvency,  §§  564,  565. 

Creditor,  appointment  in  action  by,  §  564. 

Debts,    may    collect,  §  568. 

Disqualification  of  persons  to  act  as, 
§566. 

Ex  parte  application  for,  additional  un- 
tertaking,  §  566. 

Ex  parte  application  for,  undertaking, 
§  566. 

Execution  in  aid  of,  §  564. 

Foreclosure,   appointment   in,  §  564. 

Fraudulent  purchase,  appointment  in  ac- 
tion to  vacate,  §  564. 

Funds  in  hands  of,  court  can  only  order 
on  consent,  §  569. 

Grounds  for  appointing,  §  564. 


RECEIVER.     (Continued.) 

Interested  persons  cannot  be  appointed, 
§  566. 

Investment,  funds  in  hands  of,  may  be 
invested,  on  order  of  court,  §  569. 

Investment  of  funds  in  hands  of,  order 
for  consent  to,  §  569. 

Judgment,  after,  to  dispose  or  preserve 
property,  §  564. 

Judgment,  appointment  after,  §  564. 

.Judgment,  to  carry  into  effect,  §  564. 

Oath  of,  §  567. 

Partnership  eases,  appointment  in,  §  564. 

Party  cannot  be  appointed  without  writ- 
ten consent,  §  566. 

Possession  of  property,  §  568. 

Powers,  §  568. 

Qualifications,  who  may  not  be  ap- 
pointed, §  566. 

Eents,  may  receive,  §  568. 

Unclaimed  fund,  disposition  of,  §  570. 

Unclaimed  fund  in  hands  of,  publication 
of  notice  of,  §  570. 

Undertaking,  additional,  on  appointment 
of,  §  566. 

Undertaking  of,  §  567. 

Undertaking  on  appeal,  to  stay  judgment 
appointing,  §  943. 

Undertaking  on  ex  parte  application  for, 
§  566. 

When  may  be  appointed,  §§  564,  565. 

Who  may  not  act  as,  without  consent  of 
parties,  §  566. 

RECLAMATION  DISTRICTS. 

Disqualification  of  judge  or  justice  in  ac- 
tions in  relation  to,  and  proceedings 
on,  §  170. 

RECORDERS. 

Filing  abstract  of  justice's  judgment 
with,  §  900. 

RECORDING.     See  Eegistration. 

RECORDS.     See  Evidence;  Lis  Pendens. 
Abstract  of  justice's  judgment  must  be 

recorded,  to  create  lien  on  land,  §  900. 
Actions,  of,  clerk  must  keep,  §  1052. 
Appeal,  what  constitutes  record  on,  §  661. 
As  evidence.     See  Evidence. 
Attachment,    release    of,    how    recorded, 

§  559. 
Attachment,  release  of,  to  be   recorded, 

§  559. 
Attachments,  how  indexed.  §  542. 
Attachments,  recorder  to  index,  §  542. 
Copy  of,  seal,  §  153. 
Courts  of,  what  are,  §  34. 
Docket,  justice's,  a  public,  §  93. 
Execution,  return  of,  §  683. 
Judicial.     See  .Judgments. 
Lis  pendens,  §  409. 
Partition,  of  conveyance  in,  §  787. 
Public,    dockets    and   papers    of   justice, 

§914. 
Register  of  actions,  what  to  be  entered 

in,  §  1052. 
Saturday  afternoon,  instruments  may  be 

recorded  on, §  10. 


INDEX.      VOL.    I,       §§  1-1059. 


XCl 


RECORDS.      (Continued.) 

Transfer  from  old  court  to  new,  §§  55,  79. 
What  constitutes,  on  ai)peal,  §  661. 

REDEMPTION. 

A]^pealability  from  an  order  or  decree  in 
action  to  redeem  from  mortgajje  or 
lien,  §  963. 

Execution,  from,  §§  701,  707.  See  Exe- 
cution. 

Execution  from,  notice,  §  703. 

Execution,  from,  payment  of  taxes,  in- 
terest, liens,  §§  702",  703. 

Execution,  from,  who  may  make,§  701. 

Mortgage,  limitation  of  action  to  redeem, 
§346. 

Mortgage,  note  of  record  of,  to  be  pro- 
duced, §  705. 

Mortgage.     See  Mortgages. 

Payment,  to  whom  to  be  made,  §  704. 

What  necessary  to,  §  705. 

REFEREES.     See  Reference. 

REFERENCE. 

Account,  of  long,  §  639. 

Account,  reference  of,  on  judgment  by 
default,  §  585. 

Account,  reference  of,  powers  and  duties 
of  referees,  §  639. 

Account,  reference  of  questions  involv- 
ing, §  639. 

Account,  where  taking  of  necessary 
after  judgment  for  defendant  on  issue 
of  law,  §  636. 

Agreement  for,  to  be  filed  with  clerk,  or 
entered  on  minutes,  §  638. 

Agreement  of  parties,  ordered  on,  in 
what  cases,  §  638. 

All  issues  in  action  may  be  referred  by 
consent,  §  638. 

All  must  meet,  but  a  majority  may  act, 
§  1053. 

Attorney,  accusation  against,  §  298. 

Attorney,  to  take  depositions  in  proceed- 
ings to  remove,  §  298 

Bill  of  exceptions,  settlement  by  referee, 
§  650. 

Compulsory,  when  may  be  ordered  by 
court  on  its  own  motion,  §§  636,  639. 

Consent,  by,  in  what  cases  may  be  or- 
dered, §  638. 

Consent,  reference  ordered  without,  on 
motion,  in  what  cases,  §  639. 

Continuance,  costs  may  be  imposed  as 
condition  of,  §  1029. 

Costs,  filing  of  bill  of,  affidavit  to,  §  1033. 

Costs,  filing  of  bill  of,  time  of,  §  1033. 

Cost-bill.     See  Costs. 

Court  commissioner,  to,  §  640. 

Decision  of,  what  constitutes,  §  1033. 

Default,  reference,  when  mav  be  or- 
dered, §  585. 

Demurrer,  when  ordered  after  judgment 
for  defendant  on,  §  636. 

Depositions,  to  take,  in  proceeding  to  re- 
move attorney,  §  298. 

Eminent  domain,  in.  See  Eminent  Do- 
main. 


REFERENCE.      (Continued.) 

Eact  necessary  to  determination,  ordered 

to  ascertain,  when,  §  G38. 
Fact,     question     of,     not     arising     upon 

pleadings,  reference  of,  §  639. 
Failure  of  parties  to  a  giro,  appointment 

by  judge,  §  640. 
Findings,    arc    part     of    judgment     roll, 

§  670. 
Finding,  effect  and  force  of,  §§  644,  645. 
Finding    has    force    of    special    verdict 

when,  §  645. 
Finding,  how  excepted  to  and  reviewed, 

§  645. 
Finilings  of,  judgment  on,  §  644. 
For  information  of  court,  §§  638,  639. 
Issue,  of,  by  court,  §  592. 
Judgment  on  finding,  §  644. 
Judgment  roll,   findings  of  referee   part 

of,  §  670. 
May    be    ordered    upon    application     of 

party    or    on    its    own    motion,    when, 

§§636,639. 
Motion,  ordered  on,  in  what  eases,  §  639. 
Objections  to  referee,  affidavits  on,  §  642. 
Objections  to  referee,  court  to  hear  and 

dispose  of,  §  642. 
Objections  to  referee,  grounds  of,  §  641. 
Ordered  on  motion  in  what  cases,  §  639. 
Ordered    upon    agreement    of    parties    in 

what  cases,  §  638. 
Partition   proceedings,  in,  §§  761   et   seq. 

See  Partition. 
Partition,      to      determine      lien-holdors* 

rights,  §  761. 
Question  not  arising  upon  pleadings,  of, 

§639. 
Referees,     additional,     appointment     of 

where  original  do  not  agree,  §  640. 
Referees,  bill  of  exceptions,  presentment 

and  settlement  of  where  case  tried  be- 
fore, §  650. 
Referees,  all  to  meet,  but  majority  may 

act,  §  1053. 
Referees,  decision  of,  meaning  of,  §  1033. 
Referees,  disqualification  of,  grounds  for, 

§641. 
Referees,  eminent  domain,  in.     See  En>i- 

nent  Domain. 
Referees,  fees  of,  amount  of,  §§  768,  1028. 
Referees,  number  of,  §  640. 
Referees,  objection  to  grounds  for,  §  641. 
Referees,    objections    to,    procedure    on, 

§642. 
Referees,  partition,  in.     See  Partition. 
Referees,  proceedings  where  they  lio  not 

agree,  §  640. 
Referees,  qualifications  of,  §§  640,  641. 
Referees,  quorum,  §  1053. 
Referee,  residence,  §§  640,  641. 
Referees,  what  disqualifies,  §  641. 
Referees,  who  may  not  act  as,  §  641. 
Report,  findings  of  fact,  and  conclusion=? 

of  law,  separately  stated,  §  643. 
Report  to  be  made  within  twenty  days, 

§643. 
Seamen,  of  claims  of,  §  826. 


XCll 


INDEX.      VOL.    I.       §§  1-1059. 


EEFERENCE.     (Continued.) 

Special  proceeding,  when  ordered  in, 
§639. 

Statement  on  motion  for  new  trial,  when 
case  tried  before  referee, §  659. 

Supplementary  proceedings,  disobedience 
of,  contempt,  §  721. 

When  may  be  ordered  upon  consent  of 
parties,  §§  638,639. 

When  ordered  after  judgment  on  de- 
murrer, §  636. 

When  parties  do  not  consent,  §  639. 

EEGISTER. 

Of  actions,  clerk  must  keep,  §  1052. 

EEGISTRATION.     See  Records. 

Saturday  afternoon,  instruments  may  be 
recorded  on,  §  10. 

REHEARING. 

In  supreme  court,  §  43. 

EEIiATIONSHIP.     See    Affinity;    Consan- 
guinity. 

RELEASE. 

Attachment,  release  of.  See  Attach- 
ments. 

RELIEF.     See  Judgment. 

REMEDIES.     See  Actions. 

Cumulative,  action  by  possession  to  quiet 

title,  §  751. 
Cumulative,  action  to  quiet  title  is,  §  751. 
Judicial,  defined  and  classified,  §§  20,  21. 
Merger  of  civil  and  criminal,  §  32. 

REMITTITUR. 

Certifying  to  clerk  of  court  below,  §  958. 
In  transferred  cases,  §  56. 

REMOVAL    OF    CAUSES.     See    Place    of 
Trial. 

RENEWAL. 

Application  for  order,  of,  §  182. 
Execution  in  justice's  court,  renewal  of, 
§903. 

RENTS.     See    Execution;    Forcible    Entry 

and  Unlawful  Detainer;  Landlord  and 

Tenant. 
From  time   of  execution  to   redemption, 

§707. 
Limitation  of  actions  respecting,  §§  319, 

336. 
Receiver  may  collect,  §  568. 

REPLEVIN.     See  Claim  and  Delivery. 

REPORTER. 

Phonographic.     See     Phonographic     Re- 
porter, 
Supreme  court  decisions,  §  262. 
Supreme  court.     See  Supreme  Court. 

RES  ADJUDICATA.     See  Judgment. 

Conclusiveness,  action  involving  validity 
of  gift  or  trust,  §  738. 

RESCUE. 

Liability  of  sheriff,  §  501. 
When  a  contempt,  §  906. 


RESIDENCE. 

Non-resident,    place    of    action    against, 

§395. 
Of  justice  of  peace,  §  159. 
Of  superior  judges,  §  158. 

RESPONDENT. 

What  may  require  to  be  inserted  in  tran- 
script on  appeal,  §  953a. 
Who  is,  §  938. 

RESTITUTION. 

Of  property  on  reversal,  §  957. 

RETROACTIVE, 

Force  of  code,  §  3. 

Statute  of  limitations,  §  362. 

RETURN.     See  Execution;  Summons. 
Execution,  of,  time  for,  §  683. 
Officer  summoning  jurors,  of,  §§  227,  232. 
Summons  returned  how,  §  410. 

REVERSAL. 

On  appeal. 


See  Appeals,  IX. 


REVIEW. 

Appeal,  on.     See  Appeals,  VIII. 
Appeal,  other  than  by,  costs  on,  §  1032. 
Chambers,  powers  at,  §§  165,  166. 
Costs,  §  1032. 

Superior  court  or  judge  may  issue,  §  76. 
Supreme  court  justice  may  not  grant,  at 

chambers,  §  165. 
Supreme  court  may  issue,  §§  51,  54. 

REVIVAL. 

Judgment,  revival  of,  after  five  years, 
power  of  court,  §  685. 

Judgment,  revival  of,  in  favor  of  execu- 
tion purchaser,  §  708. 

RIOTS. 

.Justice's  court  has  jurisdiction,  §  115. 
Limitation  of  action  against  municipal- 
ity for,  §  340. 

RIVERS. 

Venue  of  action  for  offense  on  river  sit- 
uated in  several  counties,  §  393. 

ROLL  OF  ATTORNEYS. 

How  kept,  §  280. 

ROOMS. 

Courts,  for.     See  particular  court, 

ROUTS. 

Justice's  court  has  jurisdiction  over, 
§  115. 

RULES. 

Allowances  to  officers  for  services  cannot 
be  given  by,  §  129. 

Courts  of  record  may  make  for  their 
government  and  government  of  offi- 
cers, §  129. 

Evidence,  of.     See  Evidence. 

Inconsistent  with  code,  repealed,  §  18. 

Of  construction  of  code,  §  4. 

Of    court,   courts    of   record   may    make, 

■      §  129. 


INDEX.      VOL.    I. 


SS 


1-1059. 


XCIU 


EULES.     (Continued.) 

Of  court,  limitation  on  power  to  make, 
§129. 

Of  justice's  court,  §  95. 

Pleading,  of.     See  Pleading. 

Practice,  rules  of  in  particular  proceed- 
ing.    See  particular  title. 

Superior  court,  time  of  taking  effect, 
§  130. 

Supreme  court,  time  of  taking  effect, 
§  130. 

Taxes,  charges  or  penalties  cannot  be  im- 
posed by,  §  129. 

To  be  spread  upon  record,  printed  and 
filed  with  clerk  of  court,  §  130. 

When  take  effect,  §  130. 


SACRAMENTO  COUNTY. 

Number  of  superior  judges,  §  66. 

SALARY. 

Deputy  sheriff's,  in  justice's  courts,  §  S7. 
Justices   of  the   peace.     See  .Justices   of 

the  Peace. 
.Justice's  clerk.     See  .Justice's  Clerk. 
Lien  for.     See  Lien. 

SALES.     See    Execution;    Foreclosure    of 
Mortgage;  Partition. 

SAN  FRANCISCO. 

Classification  of  judges  as  to  terms  of 
otEce,  §  6S. 

Judgments  and  orders  of  any  session 
held  by  one  or  more  judges  as  effective 
as  if  all  judges  presided, §  67. 

Number  of  superior  judges,  §  67. 
'     Presiding    judge,    election    and    removal 
of,  §  67 

Presiding  judge  to  distribute  and  pre- 
scribe order  of  business,  §  67. 

Superior  court,  any  one  or  more  of 
judges  may  hold  court,  §  67 

Superior  court,  four  additional  judges, 
appointment,  term  of  office  and  sala- 
ries, §  67. 

Superior  court,  presiding  judge,  duties 
of,  §  67. 

Superior  court,  presiding  judge  to  pre- 
scribe times  of  holding  special  ses- 
sions, §  73. 

Superior  court,  proceedings  of  one  ses- 
sion as  effective  as  if  all  judges  pre- 
sided, §  67. 

Superior  court,  sessions  of,  number  of, 
§67. 

SANITY.     See  Insane  Persons. 

SAN  JOAQUIN  COUNTY. 

Number  of  judges,  §  66. 

SANTA  CLARA  COUNTY. 

Number  of  judges,  §  66. 

SATISFACTION. 

Attorney  may  acknowledge,  §  283. 
Mortgage,  foreclosure,  entry  of  satisfac- 
tion on  margin  of  record,  §  675a. 
Of  judgment,  how  made,  §  675. 


SATURDAY.     See  Holidays. 
Afternoon  a  half-holiday,  §  10. 
Afternoon,  what  acts  valid  on,  §  10. 

SAVINGS    AND    LOAN    ASSOCIATION. 

See  Corporations. 

SAVINGS  BANK. 

Limitation  of  action  again8t,§  348. 

SCHOOLS. 

Holidays     See  Holidays 

SCIRE  FACIAS. 

Abolished,  §802. 

SEAL. 

Certificate   of  appointment   of   executor, 

administrator    or    guardian,    necessary 

to, §  153. 
Certificate  of  probate  of  will,  necessary 

to, §  153. 
Court  commissioner,  of,  §  259. 
Court,  of,  clerk  to  keep,  §  152. 
Courts,  of,  how  provided,  §  151. 
Courts,    of,    to    what    documents    to    be 

affixed,  §  153. 
Court,  of,  when  private  seal  used,  §  151. 
Court,  superior  court,  form  of,  §  149. 
Courts,  what  courts  must  have,  §  147. 
Defined,  §  14. 

Execution,  to  have  seal,  §  682. 
Guardian,  §  153. 
Police  court,  of,  §  150. 
Record,  copy  of,  necessary  to,  §  153. 
Superior  court,  of,  §  149. 
Supreme  court,  of,  §  148. 
Telegram,  how  described  in,  §  1017. 
To  what  document  to  be  affixed,  §  153. 
What  courts  shall  have,  §  147. 
What  includes,  §  14. 
Writ,  necessary  for,  §  153. 

SEALED  VERDICT. 

Jury  may  bring  in,  when,  §  617. 

SEAMEN.     See  Shipping. 

Exempt  from  jury  duty,  §  200. 
Exemption  of  earnings  of,  §  690. 

SEARCHER  OF  RECORDS. 

What  property  of,  exempt,  §  690. 

SECRETARY. 

Of  supreme  court,  §§  265,  266. 

SECTION. 

Meaning  of,  §  17. 
Refers  to  what,  §  17. 

SEDUCTION. 

Father  may  sue  for  daughter's,  §  375. 

Guardian  may  sue  for  seduction  of  ward, 
§375. 

Limitation  of  action  for,  §  340. 

Mother  may  sue  for  daughter's,  when, 
§375. 

Sitting  of  court,  private  in  action  for, 
§  125. 

Unmarried  female  may  recover  ex- 
emplary damages  for  own,  §  374. 

Unmarried  female  may  sue  for  her  own, 
§374. 


XCIV 


INDEX.      VOL.    I.       §§  1-1059. 


SEISIN. 

Within  five  years,  when  necessary  to  re- 
cover realty,  §§  318,  Sl'J. 

SENATE.     See  Impeachment;  Legislature. 
SERVANT.     See  Master  and  Servant. 

SERVICE.     See  Process. 

Accusation  against  attorney,  service  of 
by  publication,  §  292. 

Appearance,  equivalent  to,  §  416. 

Appearance,  defendant  or  his  attorney 
entitled  to  notice  of  all  proceedings 
after,  §  1014. 

Appearance,  failure  to  make,  service  not 
necessary  in  ease  of,  §  1014. 

Association,  on,  §§  388,  411. 

Attorney,  how  made  where  attorney  has 
no  known  office  in  state,  §  1015. 

Attorney,  on,  manner  of,  §  1011. 

Attorney,  on,  where  attorney  removed  or 
suspended  from  practice,  §  101.5. 

Attorney,  service  may  be  on,  when,  and 
when  not,  §  1015. 

Bill  of  exceptions  and  amendments.  See 
Exceptions. 

Bill  of  exceptions,  of,  §  650. 

Clerk,  may  be  made  on,  when,  §  1015. 

Complaint,  copy  of,  §§  410,  527. 

Contempt  proceedings,  §  1016. 

Corporation,  on,  §  411. 

Expense  of,  included  in  costs,  §  1021. 

Injunction,  of  complaint  and  affidavit, 
§  527. 

Mail,  bv,  computation  of  time,  and  ex- 
tension of,  §§  1005,  1013. 

Mail,  by,  how  made,  §§  1011,  1013. 

Mail,  by,  when  complete,  §  1013. 

Mail,  by,  when  mav  be  made,  §§  1011, 
1012. 

Need  not  be  made  if  defendant  does  not 
appear,  §  1014. 

Non-resident,  on  attorney,  §  1015. 

Non-resident,  on,  manner  of,  §  1015. 

Notice  and  papers,  how  served,  §  1011. 

Notice,  after  appearance  defendant  en- 
titled to  all,  §  1014. 

Particular  proceeding,  in.  See  particular 
title. 

Party,  on,  manner  of,  §  1011. 

Party,  service,  when  must  be  on,  §  1015. 

Personal,  may  be,  §  1011. 

Personal,  upon  whom  made,  §  1011. 

Pleadings  subsequent  to  complaint,  §  465. 

Proof  of,  §  415. 

Publication,  by,  §§  412,  413,  415.  See 
Summons. 

Several  defendants,  some  served,  pro- 
ceedings against  those  served, §  414. 

Substituted.     See  Summons. 

Summons.     See  Summons. 

Telegraph,  by,  authorized,  §  1017. 

Telegraph,  by,  manner  of,  §  1017. 

Telegraph,  by,  powers  and  duties  of  ofii- 
cers,  §  1017. 

Times  for,  extension  of,  §  1054. 

What  papers  need  not  be  served  on  party 
defaulting  or  not  appearing.  §  050. 


SESSIONS. 

Extra,   of  superior  court.     See   Superior 

Court. 
Supreme  court,  of,  §  47. 

SET-OFF. 

Assignment    of   chose    not    to    prejudice, 

§  .368. 
Bill  or  note,  assignments  not  affected  b" 

set-off,  §  368. 
Cross-demands       deemed       compensated, 

§440. 
Cross-demands  not  affected  by  death  or 

assignment,  §  440. 
Improvements,  as,  in  ejectment,  §  741. 

SHAM  ANSWER. 

Striking  out,  §  453. 

SHARES. 

Of  stock.     See  Corporation. 

SHERIFF.  See  Arrest  and  Bail;  Attach- 
ment; Execution;  Justices'  Courts. 

Absence  of  judge,  duty  in  case  of,  §  139. 

Action  against,  for  official  acts,  §  1055. 

Action  against,  notice  to  sureties  ou 
bond,  effect  of,  §  1055. 

Arrest  by,  how  made,  §  485. 

Attachment  of  vessel,  §§  819,  820. 

Attorney,  disqualification  to  act  as,  §  TiS. 

Bail,  discharge  from  liability  as,  §  501. 

Bail,  liability  as,  on  official  bond,  §  502. 

Bail-monev  to  be  deposited  in  court, 
§498. 

Bail,  when  liable  as,  §  501.  See  Arrest 
and  Bail. 

Courts,  rooms,  chambers,  etc.,  for,  pro- 
viding, and  expense  of,  §§  88,  144. 

Deed  when  to  be  executed,  §  703. 

Deposit  in  court,  sheriff,  when  to  take, 
§574. 

Deputies,  in  justices'  courts,  duties,  §  87. 

Deputies,  in  justices'  courts,  liability  for, 
§87. 

Deputies,  in  justices'  courts,  salary,  §  87. 

Disqualification  to  act  as  attorney,  §  96. 

Dutv  to  provide  suitable  rooms  for  judge, 
§  144. 

Duty  to  provide  rooms  for  justice,  §  88. 

Election  of,  where  prescribed,  §  2G2. 

Escape,  limitation  of  action  against,  for, 
§340. 

Execution,  levving,  liability  to  plaintiff, 
§  682. 

Execution  ma.y  issue  to  any,  §  687. 

Execution,  not  to  purchase  at,  §  694. 

Execution,  penalty  for  selling  under, 
without  notice,  §  693. 

Execution  sale     See  Execution. 

Execution,  writ  of,  requires  what  of, 
§  682. 

Ex-officio  officer  of  justice's  court,  §  87. 

Expenses  of  providing  suitable  rooms, 
how  paid,  §§  88,144. 

Indemnity  to,  on  claim  of  property,  §  689. 

Indemnity  to.     See  Indemnity. 

Judgment  against,  conclusive  against 
surties,  when,  §  1055. 

Jurors,  list  of,  to  be  delivered  to  sheriff, 
§  219. 


INDEX.      VOL.    1.       §§  1-1059. 


xcv 


SHERIFF.     (Continued.) 
.Jurors,  summoning  fortliwfth,  §  22G. 
Jurors,    summoning    to    comi)lete    panel, 

§227. 
.Tustice's    court,    duty    to    provide    rooms 

for,  §  88. 
Justice's    court,    duty    to    serve    process, 

etc.,  issued  by,  §  87. 
Justice's  court,  sheriff  an  officer  of,  §  87. 
Justice's   court,   sheriff,   attendance   and 

duties  of,  §  87. 
Justice's  court,  sheriff,  deputy,  duties  of, 

§87. 
.Justice's  court,  sheriff,  deputy,  salary  of, 

§87. 
Justice's   court,   sheriff,   ex-officio    officer 

of,  §  87. 
Justice's  court,  sheriff,  liability  for  depu- 
ties, §  87. 
Justice's  court,  sheriff,  liability  on  bond, 

§  87. 
Justice's    court,    summoning    jurors    for, 

§§  230-232. 
Liability    for   taking    property    of    third 

person  under  execution,  §  689. 
Liability  on  bond  for  duties  in  justices' 

courts,  §  87. 
Liabilitv    to    third    person    in    replevin, 

§519/ 
Limitation  of  action  against,  §§  339.  340. 
Official  bond,  liability  on,  of  sheriff,  as 

bail,  §  502. 
Powers  and  duties  of,  prescribed  by  Po- 
litical and  Penal  Codes,  §  262. 
Powers   and   duties  on  service   of   paper 

by  telegraph,  §  1017. 
Receipt  of,  for  accounts  collected  in  at- 
tachment, §  547. 
Eequisition  to,  in  replevin,  §  511. 
Seals   for   courts,  duty  to   provide,  §  I.jI. 
Summon  jurors,  how  to,  §  225. 
Summoning  jurors  for  courts  of   record, 

§§  225-227. 
Sureties'  liability  for  default  on  deposit 

made  in  lieu  of  bail,  §  498. 
To  notify  plaintiff  of  arrest,  §  864, 

SHERIFF'S  DEED. 

When  to  be  executed,  §  703. 

SHIPPING. 

Actions  relating  to,  against  whom  to  bo 

brought,  §  814. 
Appearance,  who  may  enter  and  defend 

action,  §  821. 
Attached      vessel,      claims      of      seamen 

against,   how   proved,  §  826. 
Attached  vessel,  notice  of  sale,  §  824. 
Attached  vessel,  sale  of,  application   of 

proceeds, §  824. 
Attached  vessel,   sale   of,  application  of 

proceeds    where    claim    for    wages    in- 
volved, §  825. 
Attached    vessel,    sale    of,    at    auction, 

§824. 
Attachment   of  vessel,   claim   for  wages 

may     be     asserted     notwithstanding, 

§  825. 
Attachment    of    vessel,    clerk    to    issue, 

§  818. 


SHIPPING.      (Continued.) 

Attachment  of   vessel,  custody,  §  820. 

Attachment  of  vessel,  discharge  of,  how 
procured, §  822. 

Attachment  of  vessel,  discharge  of,  on 
motion,  §  823. 

Attachment  of  vessel,  discharge  of,  un- 
dertaking or  deposit,  §  822. 

Attachment  of  vessel,  discharge  of, 
where  claim  of  mariner  or  seaman 
filed,  §  825. 

Attachment  of  vessel,  duty  of  sheriff  in 
executing  writ,  §  820. 

Attachment  of  vessel,  right  of,  §  817. 

Attachment  of  vessel,  sheriff  may  not 
interfere  with  merchandise,  baggage, 
etc.,  §  820. 

Attachment  of  vessel,  sheriff  must  exe- 
cute writ  without  delay,  §  820. 

Attachment  of  vessel,  time  for,  §  817. 

Attachment  of  vessel,  undertaking,  §  818. 

Attachment  of  vessel,  undertaking,  ex- 
ception to  sureties,  §  821. 

Attachment  of  vessel,  undertaking,  jus- 
tification of  sureties,  §  821. 

Attachment  of  vessel,  writ,  what  to  di- 
rect sheriff"  to  do,  §  819. 

Attachment  of  vessel,  who  may  defend 
action,  §  821. 

Attachment  of  vessel,  writ  to  be  di- 
rected to  what  sheriff,  §  819. 

Claim,  mariner  or  seaman  may  file,  §  825. 

Claim  of  mariner  or  seaman,  affidavit, 
§825. 

Claim  of  mariner  or  seaman,  contest  of, 
proceedings  on, §  826. 

Claim  of  mariner  or  seaman,  failure  to 
contest,  admission,  §  826. 

Claim  of  mariner  or  seaman,  reference 
of,  on  contest,  §  826. 

Claim  of  mariner  or  seaman,  rights  on 
filing,  §  825. 

Claim  of  mariner,  review  of  finding  of 
clerk   or  referee   respecting,  §  826. 

Claim  of  seaman,  proof  of,  §  826. 

Claims  for  which  vessels  are  liable,  §  813. 

Complaint  against  unknown  owners, 
§815. 

Complaint  must  be  verified  in  action 
against  vessel,  §  815. 

Execution  against  ship,  where  claim  for 
wages  asserted,  apjilication  of  pro- 
ceeds, §  825. 

Exemption  of  property  of  master,  officer, 
or  seaman,  §  690. 

Fishing-boat,  exemption  of,  §  690. 

Jury  duty,  emplovee  of  vessel  is  exempt 
from,  §  200. 

Justice's  court  has  no  jurisdiction,  §  114. 

Lien-holders  made  defendants,  claims  to 
be  alleged,  §  814. 

Lien-holders  may  be  made  defendants  in 
actions,  §  814. 

Liens,  duration  of,  §  813. 

Liens  on  vessels,  what  demands  consti- 
tute, S  813. 

Liens,  preference  between,  §  813. 

Liens,  priority  of,  §  813. 


XCVl 


INDEX.      VOL.    1.       §§  1-1059, 


SHIPPING.      (Continued.) 

Notice  of  sheriff's  sale,  what  to  contain, 
§827. 

Owners,  action  to  be  against,  §  81-1. 

Owners  unknown,  designation  of,  in  ac- 
tion, §  814. 

Parties  defendant  in  actions  against  ves- 
sel, §  814. 

Parties  defendant,  lien-holders  may  be 
made,  §  814. 

Sale  of  vessel,  notice,  what  to  contain, 
§  827. 

Sale,  proceeds,  how  to  be  applied,  §§  824, 
825. 

Sale,  sheriff,  when  to  sell  vessel,  §  824. 

Seamen's  wages,  exemption  of,  §  690. 

Seamen's  wages,  justice's  court  has  no 
jurisdiction,  §  114. 

Summons,  service  may  be  on  master, 
mate,  etc.,  when,  §  816. 

Summons,  service  to  be  on  owners  of 
vessel,  if  they  can  be  found,  §  816. 

Unknown    owners,    action    against,  §  814. 

Vessels  are  liable  for  what  claims,  §  813. 

Vessels  liable  for  injuries,  §  813 

Vessels  liable  for  services,  §  813. 

Vessels  liable  for  supplies,  §  813. 

Vessels  liable  for  wharfage  and  anchor- 
age, §  813. 

Vessels  liable  for  work  and  labor,  §  813. 

Vessels  liable  on  contract  to  carry,  §  813. 

Wages  of  seamen,  claim  of,  against  at- 
tached vessel,  proof  of,  §  826. 

Wages  of  seamen  may  be  asserted  not- 
withstanding attachment  of  ship,  how, 
§825. 

SHORTHAND    REPORTER.     See    Phono- 
graphic  Reporter. 

SICKNESS. 

Juror,  proceedings  in  case  of,  §  615. 
Justice,  transfer  of  cause,  §  90. 
Superior   judge,    appointment   of   substi- 
tute by  governor,  §  160. 

SIGNATURE. 

Includes  mark,  §  17. 

Mark,  signature  by,  to  be  witnessed  by 

two  persons,  §  17. 
When  admitted,  §§  446-449. 
When  admitted  in  justice's   court,  §  887. 

SINGULAR. 

Includes  plural,  §  17. 

SISTER  STATE. 

Limitation  laws  of.  §  361. 
Proceedings    in,    on    judgment    of,    not 
stayed,  §  526. 

SITTINGS. 

Public  and  private,  §§  124,  125. 

SLANDER. 

Answer  in,  §  461. 
Justification,  §  461. 
Limitation  of  action  for,  §  340. 
Mitigating    circumstances,    evidence    of, 

§  461. 
Pleading  in  actions  for,  §  460. 


SONOMA  COUNTY. 

Number  of  judges,  §  66. 

SOUTHERN      CALIFORNIA      COLLEGE 
OF  LAW. 

Diploma  admits  to  jractice  without  ex- 
amination, §  280b. 

SPECIAL  ISSUE. 

May  be  tried  by  jury  when,  §  309. 

Not  made  by  pleadings,  how  tried,  §  309. 

SPECIAL  PROCEEDINGS. 

"Action"  includes,  §  363. 

Appellate  jurisdiction  of  supreme  court 
over,  §  52. 

Arbitrations.     See   Arbitration. 

Certiorari.     See  Review. 

Costs  of  course,  when  allowed,  §§  1022, 
1024. 

Costs  on  review,  other  than  by  appeal, 
§  1032. 

Defined,  §  23. 

Depositions  in.     See  Depositions. 

Dissolution  of  corporations.  See  Corpo- 
rations. 

Election  contest.     See  Elections. 

.Judgments  in,  appealability,  §  963. 

Jurisdiction  of  superior  court  over,  §  76. 

Jurisdiction  of  supreme  court  over,  §  52. 

Particular  proceeding.  See  particular 
title. 

Prohibition,  writ  of.     See  Prohibition. 

Reference,  when  ordered  in,  §  639. 

Remedies,  divided  into  actions  and  spe- 
cial proceedings,  §  21. 

Security  for  costs,  failure  of  non-resi- 
dent or  foreign  corporation  to  give, 
dismissal,  §  1037. 

Security  for  costs  required  of  non-resi- 
dent  or  foreign  corporation,  §  1036. 

What  constitutes  generally,  §  23. 

Writ   of  review.     See   Review. 

SPECIAL  VERDICT. 

Vacation  of  judgment  on,  and  entry  of 
different  judgment,  §  663. 

STANFORD  UNIVERSITY. 

Admission  to  practice  law  on  diploma 
from,  §  280b. 

STATE. 

Answer  must  be  verified  when  state 
party,  §  446. 

Bonds  not  required  of,  §§  529,  1058. 

Costs,  when  state  a  party,  paid  out  of 
treasury,  §  1038. 

Execution  to  be  in  name  of  people,  §  682. 

Grantee  of,  limitation  of  action,  §  316. 

Includes  District  of  Columbia  and  terri- 
tories, §  17. 

Injunction  by,  undertaking  not  required, 
§  529. 

Injunction  suspending  business  of  corpo- 
ration, §  531. 

Judgment  in  suit  to  quiet  title  does  not 
bind, §  751. 

Limitations  in  action  for  hospital  dues,  _ 
§  345. 


INDEX.      VOL.    I.       §§  1-1059. 


XCVll 


STATE.      (Continued.) 

Limitations  in  actions  by,  generally, 
§  345. 

Limitation  of  action  by,  for  forfeiture 
or  penalty,  §  340. 

Limitation  of  action  by,  respecting  real 
property,  §§  315,  317. 

Verification  not  necessary  wliere  a  plain- 
tiff, §  446. 

Security,  people  do  not  give,  §§  529,  105S. 

STATE  LANDS.     See  Public  Lands. 
Action   against   state   to   quiet   title   to. 
See  State. 

STATEMENT.     See   New   Trial. 

Judges  have  same  power  as  in  settling 
bills  of  exceptions,  §  653. 

Justice's  court,  appeal  from,  §  92.  See 
Appeals. 

New  trial,  motion,  when  made  on  state- 
ment, §  658. 

New  trial,  power  of  judges  in  settling 
and  certifying,  §  653. 

Police  court,  statement  on  appeal  from. 
See  Appeals,  XIII. 

Proceedings  on  death,  disqualificatiou, 
absence  or  refusal  of  judge,  §  653. 

STATE  PRISON. 

Officer    or    attendant    exempt    from   jury 

duty,  §  200. 

STATUTE  OF  LIMITATIONS.  See  Limi- 
tation of  Actions, 

STATUTES.  See  Code  of  Civil  Procedure; 
Evidence;  Law. 

Code,  consistent  with,  not  continued  in 
force,  §  18. 

Code,  construed  as  continuation  of  stat- 
ute substantially  same,  §  5 

Code,  inconsistent  with,  repealed,  §  IS. 

Code,  private  statute  not  repealed  bv, 
§  18. 

Code,  repeal  by,  does  not  revive  former 
law,  §  18. 

Code  repeals  statutes  on  matters  cov- 
ered by,  §  18. 

Code,  retroactive,  is  not,  §  3. 

Conditions  precedent  to  rights  under, 
how  pleaded,  §  459. 

Execution  of,  bj'^  officers  not  enjoined, 
§  526. 

Limitation  of  action  upon  statute  for 
penalty  or  forfeiture,  §  340. 

Not  continued  in  force  because  con- 
sistent with  code,  §  18. 

Not  expressly  continued  in  force,  re- 
pealed, §  18. 

Pleading  private,  §  459. 

Private,  not  repealed  by  code,  §  18 

Remedies.     See  Remedies. 

Repeal  by  code  does  not  revive  former 
laws,  §  18. 

Repeal  of,  does  not  revive  former  law, 
§  18. 

Retroactive,  code  is  not,  §  3. 

Section,  meaning  of,  §  17. 


STAY.     See  Appeals,  VL 

Execution  in  justice's  court,  not  to  ex- 
ceed ten  days,  §  901a. 

Execution,  of,  time  of,  excluded  in  com- 
puting time  within  which  may  issuo, 
§  681. 

Execution,  power  of  court  to  stay, 
§  68 la. 

Execution,  power  of  justice  to  stay, 
§  901a. 

Granting,  until  securitv  given  for  costs, 
§  1036. 

Injunction,  when  and  when  not  granted 
to  stay,  §  526. 

STEAMERS.     See  Shipping. 

ST.  IGNATIUS  UNIVERSITY. 

xVdmission  to  practice  law  on  diploma 
from   law  college   of,  §  280b. 

STENOGRAPHER.      See  Phonographic-  Re- 
porter. 

STIPULATION. 

For  transfer  of  action  to  another  court, 
§  398. 

Of  attorney,  §  283. 

Place  of  trial,  stipulation  as  to  in  ac- 
tion against  city,  county  or  city  and 
county,  §  394. 

To  omit  matter  from  record  on  appeal, 
§953a. 

STOCK.     See  Corporations. 

Limitation  of  action  to  recover,  sold  for 
delinquent  assessment,  §  341. 

STOCKHOLDER. 

Limitation  of  action  against,  §  359. 

STREAM. 

Venue  of  action  for  offense  on  stream 
situated  in  several  counties,  §  393. 

STREET  RAILROADS. 

Exemption  of  employees  of  from  jury 
duty,  §  200. 

STREETS.     See  Highways. 

Limitation  of  action  to  contest  assess- 
ment under  local  improvement  act, 
§349. 

Partition   proceedings  affecting,  §  764. 

STRIKING  OUT. 

Irrelevant  and  redundant  matter  in 
pleading,  §  453. 

Order  striking  out  part  of  judgment  roll, 
§670. 

Order  striking  out  pleading  deemed  ex- 
cepted to,  §  647. 

Sham  answer,  §  453. 

SUBPCENA. 

Justice  of  peace  may  issue,  to  any  part 

of  county,  §  919. 
Justice's  clerk  may  issue,  §  87. 
Service  of,  must  be  on  party,  §  1015. 

SUBROGATION.     Of  judgment  debtor,  and 

proceedings  to  obtain,  §  709. 
Of  surety  on  appeal  bond,  §  1059. 
Surety,  subrogation  of,  and   proceed ir^s 

to  obtain, §  709. 


< 


xevm 


INDEX.     VOL.  1.      §§  1-1059. 


SUBSCKIPTION, 

Includes  mark,  §  17. 

SUBSTITUTED    SERVICE.     See   Service; 
Summons. 

SUBSTITUTION.     See  Subrogation. 
Attorney,  of.     See  Attorney. 
Of  parties  to  action,  §§  385,  386. 
Person  making  claim  on  defendant,  sub- 
stitution of,  §  386. 

SUCCESSIVE  ACTIONS. 

Right  to  maintain,  §  1047. 

SUCCESSOR. 

In    interest,    substitution    of,    as    party, 

§  385. 
What    justices    of    peace    successors    of 

others,  §§98, 107,  917. 
Who    to    designate    succeeding    justice, 

§  918. 

SUMMARY  PROCEEDINGS.     See  Arrest 
and  Bail;  Forcible  Entry  and  Unlaw- 
ful Detainer;  Special  Proceedings. 
Particular   writs.     See   subject   in    ques- 
tion. 

SUMMONS.     See  Process;  Forcible  Entry 

and  Unlawful  Detainer. 
Affidavit    for    publication,    as    part    of 

judgment  roll,  §  670. 
Alias,  from  justice's  court,  §§  846,  847. 
Alias,  how  issued,  §  408. 
Alias,  time  of  issuance,  §  408. 
Alias,  when  will  issue,  §  408. 
Appearance  equivalent  to  service,  §§  41G, 

581a. 
Appearance,     waiver     of     summons     by, 

§406. 
Complaint  ,must  be  served  with,  §  410. 
Contains  what,  §  407. 
Cross-complaint,    summons   to   be   issued 

and  served  upon  parties  who  have  not 

appeared,  §  442. 
Defendants    residing    in    different    coun- 
ties, issuance  of  summons,  §  406. 
Directed  how,  §  407. 
Dismissal,   failure   to   serve   and   return, 

where    defendant    absent    or    conceals 

himself,  §  581a. 
Dismissal  for  failure  to  return  summons, 

§  581a. 
Dismissal  of  action  for  failure  to  issue 

or  return, §  581a. 
Ejectment,   to   unknown    defendants    in, 

§§750,751. 
Execution  of,  where  new  county  formed, 

§  687. 
Failure    to    issue,    dismissal    of,    action 

§  581a. 
Failure  to  issue  or  return,  cured  by  ap- 
pearance, §  581a. 
Failure  to  return,  dismissal  of  action  for, 

§  581a. 
Failure   to   serve,   relief  from   judgment 

and  allowing  answer,  §  473. 
Foreign      corporation,     service     of,     on, 

§§411-413. 
Form  of,  §  407. 


SUMMONS.     (Continued.) 

Issuance,  time  of,  §§  406,  581a,  750. 

Issued  how,  §  407. 

Issued  under  seal,  §  407. 

Joint  contract,  service  where  one  or 
more  appear,  §  406. 

Joint  debtor,  after  judgment,  affidavit 
for,  §  991. 

Joint  debtors  may  be  summoned  after 
judgment,  §  989. 

Joint  debtors  not  summoned  in  original 
action,  what  to  contain,  §  990. 

Joint  debtors,  those  served  may  be  pro- 
ceeded against,  §  414. 

.Joint  debtors.     See  .loint  Debtors. 

Judgment,  relief  from,  and  allowing  an- 
swer, where  summons  not  served,  §  473. 

Judgment  roll,  on  service  by  publication, 
§  670.. 

Judgment  roll,  part  of  where  complaint 
not  answered,  §  670. 

Jurisdiction  of  action  acquired  when, 
§416. 

Justices'  clerks  and  deputies  in  town- 
ships in  counties  of  seventh  class,  is- 
suance and  form  of,  §  103b. 

Justices'  clerks  in  townships,  power  to 
issue,  §  103a. 

Justice's  court,  alias  summons  in,  §§  846, 
847. 

Justice's  court,  from,  service  by  sheriff 
and  deputy,  §  87. 

Justice's  court,  to  be  served  out  of 
county,  certificate  to,  §  849. 

Justice's  court,  to  be  served  out  of 
county,   publication   of,  §  849. 

Justice's  court,  to  be  served  out  of 
county,  service  and  return, §  849. 

Justice's  court,  who   may  serve,  §  849. 

Justice's  court  in.  See  Justices'  Courts, 
VII. 

Limitation  on  time  for  issuing,  §  581a. 

Limitation  on  time  for  return,  §  581a. 

Lost,  alias,  issuance  of,  §  408. 

Must  contain  what,  §  407. 

Partition,  in,  §§  756,  757. 

Personal  service,   when   necessary,  §  411. 

Police  court,  in,  §  930. 

Proof  of  service  by  admission  of  defend- 
ant, §415. 

Proof  of  service,  certificate  or  affidavit 
must  state  what,  §  415. 

Proof  of  service,  how  made,  §  415. 

Proof  of  service  in  case  of  publication, 
§  415. 

Proof  of  service  made  by  person  other 
than  sheriff,  §  415. 

Proof  of  service  made  by  sheriff,  §  415. 

Publication,  affidavit,  §§  412,  750. 

Publication,  affidavit  as  to,  filing  of,  cer- 
tificate of  residence,  §  412. 

Publication  of,  certificate  of  residence, 
effect  of  on  right  to,  §  412. 

Publication,    concealed    defendant,  §  412. 

Publication,  depositing  summons  and 
complaint  in  post-office,  §  413. 

Publication,  foreign  corporation  having 
no  agent,  etc.,  §§  412,  413. 


INDEX.      VOL.    1. 


!§  1-1059. 


XCIX 


SUMMONS.      (Continued.) 

Publication,  in  partition,  §  757. 

Publication,  in  suit  to  determine  adverse 
claim,  §  750. 

Publication  in  suit  to  determine  adverse 
claim   against   unknown   owners,  §  750. 

Publication,  judgment  roil,  on  service 
by,  §  670. 

Publication,  manner  of,  §  413. 

Publication,  non-resident,  §§  412,  413. 

Publication,  order,  what  to  direct,  §  413. 

Publication,  personal  service  of  com- 
plaint and  summons  out  of  state, 
effect  of,  §  413. 

Publication,  procedure  to  obtain  order 
for,  §  412. 

Publication  of,  procedure  where  defend- 
ant fails  to  answer,  §  585. 

Publication,  time  and  frequency  of, 
§413. 

Publication,  when,  and  how  made,  §  412. 

Publication,  when  complete,  §  413. 

Publication,  when  may  be  ordered,  §  412. 

Publication  of,  default  for  failure  to  an- 
swer, procedure,  §  585. 

Quieting  title,  summons  in  action.  See 
Quieting  Title. 

Relief  from  judgment  when  no  personal 
service,  §  473. 

Eeturn  by  person  other  than  sheriff, 
§410. 

Eeturn  by  sheriff,  manner  of,  §  410. 

Return,  limitation  of  time  for,  §  581a. 

Returned  how,  §  410. 

Served  how,  §410,411. 

Service  by  person  other  than  sheriff, 
§410. 

Service  by  publication,  in  partition  suit, 
§757. 

Service  by  sheriff,  manner  of,  §  410. 

Service  by  telegraph,  §  1017. 

Service  in  action  against  vessels,  §  816. 

Service  of,  certificate  of,  §  410. 

Service  of  gives  jurisdiction,  §  416. 

Service  of,  jurisdiction  of  defendant  ac- 
quired on,  §  416. 

Service  on  county,   city,   or   town,  §  411. 

Service  on  domestic  corporation,  §  411. 

Service  on  foreign  corporation,  §  411. 

Service  on  guardian,  §  411. 

Service  on  infant  under  fourteen,  §  411. 

Service  on  insane  person,  §411. 

Service  on  non-resident  joint-stock  com- 
pany doing  business  here,  §  411. 

Service  on  part  of  defendants,  procedure 
after,  §  414. 

Service,  personal,  when  necessary,  §  411. 

Service  to  be  on  defendant  personally 
when,  §  411. 

Service  where  parties  associated  in  busi- 
ness, §  388. 

Service  where  parties  transact  business 
under  common  name,  §  388. 

Signed  by  clerk,  §  407. 

Telegraph,  transmission  by,  for  service, 
§  1017. 

Time  to  answer,  §  407. 

Time  to  issue,  §  581a. 


SUMMONS.      (Continued.) 
Time  to  return,  §  581a. 
Unknown    defendants   in    ejectment,   to, 

§§750,751. 
Waiver  of,   by  appearing  and  pleading, 

§406. 
Waiver  of,  in  writing,  §  406. 
What  to  contain,  §  407. 
When  may  be  issued,  §  406. 
Who  may  serve,  §  410. 

SUNDAYS.     See  Holidays. 
Are  holidays,  §  10. 

Holiday  falling  on  Sunday,  next  day 
celebrated,  §§  10,11. 

SUPERINTENDENT. 

Of  railroad,  exempt  from  jury  duty, 
§200. 

SUPERIOR  COURT.  See  Courts;  .Judges; 
Probate  Court;  Superior  Judge. 

Adjournments  construed  as  recesses,  and 
not  to  prevent  sitting,  §  74. 

Adjournment  for  absence  of  judge,  duty 
of  sheriff  or  clerk,  §  139. 

Adjournment  from  day  to  day  for  ab- 
sence of  judge,  §  139. 

Adjournment  to  next  regular  session, 
§  140. 

Always  open,  for  what  purposes,  §§  73, 
134,  617. 

Appeal     to,  §§  974-980.       See    Appeals, 

xm. 

Apportionment  of  business  where  more 
than  one  judge,  §§  66,  67. 

Certified  copy  of  list  of  jurors  to  be  filed 
with  clerk  of,  §  208. 

Certifying  cases  to,  from  justice's  court, 
§92. 

Chambers.     See  Chambers. 

Costs  on  review,  other  than  by  appeal, 
§  1032. 

Docketing  judgment  of  justice's  court, 
§898. 

Docketing  judgment  of  justice's  court, 
execution,  §  899. 

Extra  sessions,  apportionment  of  busi- 
ness where  more  than  one  judge,  §  67a. 

Extra  sessions,  apportionment  of  busi- 
ness where  but  one  judge,  §  67a. 

Extra  sessions,  apportionment  of  busi- 
ness, rules  relating  to  transfer  of  busi- 
ness, §  67a. 

Extra  sessions,  compensation  of  judge 
presiding  over,  §  67a. 

Extra  sessions,  duration  of,  §  67b. 

Extra  sessions,  governor,  judge  desig- 
nated by,  to  sit,  §  67a. 

Extra  sessions,  governor  may  designate 
judge  to  sit  when,  §  67a. 

Extra  sessions,  judges  may  invite  an- 
other judge  to  sit,  §  67b. 

Extra  sessions,  judgments,  orders,  and 
proceedings,  effect  of,  §  67b. 

Extra  sessions  of,  when  may  be  held, 
§  67b. 

Extra  sessions,  place  of  holding,  §  67b. 


IKDEX.       VOL.    I.       §§  1-1069. 


SUPERIOR  COURT.      (Continued.) 

Extra   sessions,   powers   of  jutlge   presid- 
ing over,  §  67a. 
Extra  sessions,  retransferring  unfinished 

business,  §  67b. 
Extra  sessions,  time  of  holding,  §  67b. 
Extra   sessions,    who   may   preside    over, 

§  67a. 
Holding  court  by  one  judge  for  another, 

§§71,160. 
Incidental  powers  and  duties,  §§  128-130. 
Judges  of.     See  Judges;  Superior  Judges. 
Jurisdiction,     appellate,     has,     in     what 

cases,  §  77. 
Jurisdiction    is    original    and    appellate, 

§75. 
Jurisdiction,     concurrent     with    justices' 

courts,  §  113. 
Jurisdiction,  original,  has,  in  what  cases, 

§76. 
Jurisdiction.     See  Jurisdiction. 
Justices  of  peace,  shall  designate  which 

of  two,  is  successor,  when,  §  918. 
Mandamus,  issuance  of.     See  Mandamus. 
May  vacate  its  judgment,  in  what  cases, 

§663. 
Particular    county,    of.     See    particular 

title. 
Phonographic     reporter     for,  §§  269-274. 

See  Phonographic  Reporter. 
Place  of  holding,  provisions  concerning, 

§§  142-144. 
Powers   respecting   conduct    of    proceed- 
ings, §  128. 
Powers    of    on    appeal,  §  980.     See    Ap- 
peals, IX. 
Process    extends    to    all    parts    of   state, 

§78. 
Record,    superior    courts    are    courts    of, 

§34. 
Remitting  judgment  to,  §  56. 
Review,   writ    of,    issuance    of,   by.     See 

Review. 
Rooms  for,  how  provided  and  furnished, 

§144. 
Rules,  power  to  make,  §  129.     See  Rules. 
Rules,  when  take  effect,  §§  129,  130. 
Seal,  has,  §  147. 
Seal  of,  §  149. 
Seal.     See  Seal. 

Sessions  held  at  county  seats,  §  73. 
Sessions,  number  of,  in   counties  having 

two  or  more  judges,  §§  66,  67. 
Sessions,  regular,  when  held,  §  73. 
Sessions,  special,  when  held,  §  73. 
Sessions  of,  by  judge  of  another  court, 

§  160. 
Sessions,   extra.     See   ante,   this   title. 
Sittings  to  be  public,  §  124. 
Sittings  may  be  private  in  what   cases, 

§125. 
Transfer     of    action    to    another    court, 

manner  of,  §§  398,  399. 
Transfer  of  books,  records,  and  actions 

to  superior  court,  §  79. 
Transfer   to,   from   justice's   court,  juris- 
diction, §  838. 


SUPERIOR  COURT.      (Continued.) 

Transfer    to,    from   justice's   court,   when 

and  how  effected,  §  838. 
Vacation     of     judgment,     grounds     for, 

§  663.     See  Judgment. 
Writs,  power  of  to  issue,  §  76. 

SUPERIOR    JUDGE.      See     Judges;     Su- 
perior Court. 

Absence,  illness,  or  disability,  appoint- 
ment of  substitute,  §  160. 

Absence  of,  authority  of  court  commis- 
sioner, §  259. 

Absence  of,  proceedings  in  case  of,  §  139. 

Acknowledgment,  may  take,  §  179. 

Affidavit,  may  take,  §  179. 

Attorney  may  be  selected  to  act  as,  §  72. 

Certiorari,  issuance  of  writ  of.  See  Re- 
view. 

Chambers,  at,  powers  of,  §  166.  See 
Chambers. 

Change  of,  for  bias,  etc.,  procedure, 
§  170. 

Computation  of  term,  §  69. 

Deposition,  may  take,  §  179. 

Disqualification,  change  of  trial  for,  pro- 
cedure.    See  Place  of  Trial. 

Disqualification  of,  designation  of  an- 
other judge  to  act,  §  170. 

Disqualification,  disqualified  judge  may 
issue  temporary  injunction  pending 
appointment  of  new  judge,  §  170. 

Disqualification  of,  proceedings  on,  §  170. 

Disqualification  of,  what  matters  amount 
to,  §  170. 

Disqualified,  transfer  of  cause  to  an- 
other, §  398. 

Election  of,  §§  65,157. 

Eligibility,  §  157. 

Expenses  of,  incurred  in  holding  court 
for  another,  §  160. 

Extra  sessions  of  superior  court.  See 
Superior  Court. 

Guardianship  matters,  powers  of,  at 
chambers,  in,  §  166. 

Holding  court  for  another  at  request  of 
governor,  §  160. 

Holding  court  in  another  countv,  power 
of,  §  71. 

Ineligible  to  any  other  officer  or  public 
employment,  §  161. 

Jurors,  designating  the  estimated  num- 
ber of,  §  204. 

Jurors,  selection  of,  §  204. 

Law,  cannot  practice,  §  171. 

Law  partner,  cannot  have,  §  172. 

Mandamus,  issuance   of.     See  Mandamus. 

May  hold  court  in  another  county  when, 
§7L 

May  order  matter  taken  down  in  short- 
hand and  transcribed  and  charged 
against  county,  §  274a. 

May  take  acknowledgment,  affidavit, 
deposition,  §  179. 

Not  to  have  law  partner,  §  172. 

Number  of  judges,  §§  65,  66,  67,  67a. 

Opinions  of,  transcribing  of  and  charg-' 
ing  against  county,  §  274a. 


INDEX.      VOL.    I.       §§  1-1059. 


CI 


SUPEEIOR  JUDGE.      (Continued.) 

Order  of,  directing  jury  to  be  drawn, 
§214. 

Order  of,  to  impanel  grand  jury,  §  241. 

Powers  out  of  court,  §  17(5. 

Probate.     See  Probate  Court. 

Probate  matters,  power  of,  at  chambers, 
in, §  166. 

Probation  officer.     See  Probation  Officer. 

Qualifications  of,  §  157. 

Residence,  place  of,  §  158. 

Eeview,  writ  of,  issuance  of.  See  Re- 
view. 

Sickness,  absence  or  disability,  request- 
ing some  other  judge  to  sit,  §  160. 

Successor  to  justice,  superior  judge,  when 
to  designate,  §  918. 

Term  of  office,  §  6S. 

Vacancy  in,  appointee  holds  until  next 
general  election,  §  70. 

Vacancy  in  office,  governor  to  fill,  §  70. 

Vacancy  in,  one  elected  to  fill,  holds  for 
remainder  of  unexjiired  term,  §  70. 

Writs,  power  of,  to  issue,  §  76. 

SUPERVISORS. 

Selection  of  jurors,  §§  204,  205. 
Vacancy  in  office  of  justice,  supervisors 
to  fill'.  §  111. 

SUPPLEMENTAL.     See  Pleading. 

Complaint    and    answer,    when    allowed, 

§464. 
Complaint  in  partition,  §  761. 
Pleadings  to  bring  in  necessary  parties, 

§389. 
Pleadings  to  re^^ve  judgment,  §  685. 

SUPPLEMENTARY  PROCEEDINGS. 

Arrest  of  debtor,  when  ordered,  §  715. 

Commitment  of  debtor,  §  715. 

Contempt  for  disobeying  orders  in,  §  721. 

Debtor,  before  whom  may  be  required  to 
answer,  §  712. 

Debtor  must  answer  concerning  prop- 
erty, when,  §§  714,715. 

Debtor  need  not  answer  outside  of 
county  of  residence,  §  714. 

Debtor  of  defendant  may  pay  creditor 
when,  §  716. 

Disobeying  orders  in,  punishment,  §  721. 

Examination  of  debtor  of  judgment 
debtor,  §  717. 

Justice's  court,  in.  See  Justices'  Courts, 
XXII. 

Ordering  property  applied  on  execution, 
§  719. 

Proceedings  against  third  person  assert- 
ing claim,  §  720. 

Proceedings  against  third  person  deny- 
ing indebtedness  to  judgment  debtor, 
§  720. 

Proceedings  to  apply  property  on  judg- 
ment. §  715. 

Proceedings  to  compel  answer,  §§  714, 
715. 

Proceedings  to  compel  debtor  to  appear, 
§  71.5. 

Proceedings  v.-liere  debtor  of  defendant 
denies  debt,  §  720. 


SUPPLEMENTARY  PROCEEDINGS. 

(Continued.) 
Undertaking  not  to  dispose  of  property, 

requiring  of  defendant,  §  715. 
Undertaking  of  debtor,  when  required  to 

compel  appearance,  §  715. 
Witnesses    may    be    required    to    appear 

and  testify,  §  718. 

SUPREME    COURT.     See    Supreme    Court 

•Justices. 
Adjournments    do   not    prevent   sittings, 

§48. 
Adjournment,  one  or  more  may  adjourn 

court,  §  43. 
Appeal  from  judgment,  may  take  what 

action  on,  §  956. 
Appeals  to.     See  Appeals. 
Appellate  jurisdiction  of,  §  52. 
Apportionment    of    business    to    depart- 
ments by  chief  justice,  §  44. 
Attorneys    of,    who    are,  §  275.     See    At- 
torney. 
Attorneys,    removal    or    susi)ension    of, 

§287. 
Bailiffs,     appointment     and     tenure     of 

office,  §  266. 
Bailiffs,  duties  of,  §  266. 
Bailiffs,    number    and    qualification    of, 

§265. 
Bill    of    exceptions,    application    to,    for 

proving,  §  652. 
Certiorari,  issuance  of.     See  Review. 
Chambers,  powers  in,  §  165. 
Chief  justice,  absence  of,  proceedings  on, 

§46. 
Chief  justice,  disability  of,  proceedings 

on,  §  46. 
Clerk  of,  §  262. 
Clerk  of,  election  of,  §  262. 
Concurrence  of  three  justices  necessary 

to  transaction  of  business,  §  54. 
Consists  of  what,  §  40. 
Convening  of  court  by  chief  justice   or 

associate  justices,  §  45. 
Court  in  bank,  chief  justice  to  preside, 

§45. 
Court  in  bank,  convening,  §  45. 
Court  in  bank,  judgment,  concurrence  of 

four  justices  necessary,  §  45. 
Court    in    bank,    judgment,    finality    of, 

§45. 
Court     in     bank,    judgment,     rehearing, 

§  45. 
Court  in  bank,  ordering  case  to  be  heard 

by.  §  44. 
Court  in  bank,  presence  of  four  justices 

necessary. §  45. 
Decision,  all  questions  to  be  passed  upon, 

§  53. 
Decisions    to    be    written    and    reasons 

stated.  §§49,53. 
Department,    chief    justice    may    sit    in 

either,  §  43. 
Department,     disagreement     of     judges, 

transmitting  case  to  other  departmf^nt 

or  to  court  in  bank,  §  43. 
Denartment,  interchanges  between  judges, 

§  43. 


cu 


INDEX.      VOL.    I.       §§  1-1059. 


SUPREME  COURT.      (Continued.) 

Deiaartment,  judgment,  when  becomes 
final,  §  43. 

Department,  presiding  justice  of,  §  43. 

Department,  rehearing  case  where  three 
judges  do  not  concur,  §  43. 

Department,  three  justices  necessary  to 
transact  business,  §  43. 

Departments,  assignment  of  judges  to, 
§43. 

Departments,  judgment,  concurrence  of 
three  judges  necessary,  §  43. 

Departments,  judgment,  rehearing,  §  44. 

Departments,  number  of,  §  43. 

Departments,  one  or  more  justices  may 
adjourn,  §  43. 

Departments,  powers  of,  in  hearing 
causes,  §  43. 

Election   contest,   preference   given, §  57. 

Expense  of  rooms,  etc.,  how  defrayed, 
§47. 

Expenses  of,  appropriations  for,  §  47. 

Expenses,  traveling,  §  47. 

Hearing  in  bank  after  judgment  in  de- 
partment, §  44. 

Incidental  powers  of,  §§  128-130. 

Judgment,  all  questions  of  law  to  be 
passed  upon  where  new  trial  granted, 
§53. 

Judgment  in  bank,  concurrence  of  four 
justices  necessary,  §  45. 

Jurisdiction,  appellate,  §  52. 

Jurisdiction  is  original  and  appellate, 
§50. 

Jurisdiction,  original,  §  51. 

Justices  of.  See  Supreme  Court  Jus- 
tices. 

Mandamus,  issuance  of.     See  Mandamus. 

Officers  of,  traveling  expenses,  §  47. 

Open  always  for  business,  §  47. 

Ordering  case  to  te  heard  in  bank.  §  44. 

Phonographic  reporter,  provided  for  in 
Political  Code,  §  268. 

Place  of  holding  court,  §  47. 

Probate  appeal,  preference  given,  §  57. 

Records,  transfer  of  from  old  to  new 
court,  §  55. 

Record,  supreme  court  is  court  of,  §  34. 

Rehearing  after  judgment  in  depart- 
ment, §§  44,  45. 

Remedial  powers  of,  §  53. 

Remittitur,  §§  .53,  56. 

Reporter,  duties  and  powers  of,  pre- 
scribed by  Political  Code  and  Penal 
Code,  §  262. 

Reporter  of  decisions,  election  of,  §  262. 

Review,  writ  of,  issuance  of.  See  Re- 
view. 

Rooms,  furniture,  etc.,  how  provided 
for,  §  47. 

Rules  of,  when  take  effect,  §  130. 

Rules,. power  to  make,  §  129.     See  Rules. 

Seal,  has.  §  147. 

Seal  of,  duplicates,  §  148. 

Seal  of.     See  Seal. 

Secretaries,  appointment  and  tenure  of 
office,  _§§  265,266. 

Secretaries,  duties  of,  §  266. 


SUPREME  COURT.      (Continued.) 

Secretaries,  number  and  qualification  of, 
§265. 

Sessions,  §  47. 

Terms,  §  47. 

Transfer  of  records,  actions,  and  pro- 
ceedings from  old  court  to  new  court, 
§55. 

Traveling  expenses  of  justices,  §  47. 

Vacancy,  election  to  fill,  §  42. 

Vacancy  in,  appointee  to  hold  until  next 
general  election,  §  42. 

Vacancy  in,  governor  to  fill,  §  42. 

What  constitutes,  §  40. 

When  and  where  held,  §  47. 

Writ  of  habeas  corpus,  any  judge  may 
issue,  §  54. 

Writs,  concurrence  of  three  judges  neces- 
sary to  issuance,  §  54. 

Writs,  what  may  issue,  §  51. 

Where  held,  §  47. 

SUPREME   COURT   JUSTICES.     See   Su- 
preme Court. 
Acknowledgments,  may  take,  §  179. 
Adjournment,  one  or  more  may  adjourn 

court,  §  43. 
Affidavits,  may  take,  §  179. 
Bill  of  exceptions,  power  of,  respecting 

settlement  of,  §  653. 
Bill  of  exceptions,  settlement  by,  §  652. 
Chambers,  powers  at,  §  165. 
Chief   justice,    absence    or    inability    of, 

selection  of  substitute,  §  45. 
Chief    justice,    convening    of    court    by, 

§45. 
Chief  justice,  eligibility,  §  156. 
Chief  justice  to  apportion  business,  §  44. 
Classification    of,   for   purpose   of   deter- 
mining term  of  office,  §  40. 
Court,  convening  of  by,  §  45. 
Depositions,  may  take,  §  179. 
Disqualification  of,  what  matters  amount 

to,  §  170. 
Disqualification,  waiver  of,  §  170. 
Election  of  judges,  §  40. 
Eligibility,  §  156. 
Expenses,  traveling,  of,  §  47. 
Ineligible   to   any   other   office   or  public 

employment,  §  161. 
Law,  cannot  practice,  §  171. 
Law  partner,  not  to  have,  §  172. 
Mandamus,  issuance  of.     See  Mandamus. 
May     take     acknowledgment,     afiidavit, 

deposition,  §  179. 
Not  to  have  law  partner,  §  172. 
.Judgment  in  bank,  rehearing  of,  §  45. 
Judgment  in  bank,  when  becomes  final, 

§  45. 
Judgment  in  department,  concurrence  of 

three  justices  necessary,  §  43. 
Judgment    in    department,    hearing    in 

bank  of,  §  44. 
Judgment  in  department,  when  becomes 

final,  §  44. 
Judgment,  may  affirm,  reverse,  or  modifv, 

§  53. 
Judgment,   powers   of   supreme   court  in 

relation  to,  §  53. 


INDEX.      VOL.    I.       §§  1-1059. 


Clil 


StJPREME  COURT  JUSTICES.  (Con- 
tinued.) 

Judgment  to  in  writing,  §  53. 

Judgment  to  be  remitted,  §  53. 

Judgment  on  appeal.     See  Appeals,  TX. 

Partner  practicing  law,  not  to  have, 
§172. 

Powers  of,  out  of  court,  §  170. 

Qualifications  of,  §  irjli. 

Kemedial  powers  of,  §  1)57. 

Term  of  office,  §  40. 

Term  of  office,  computation  of,  §  41. 

Traveling  expenses,  §  47. 

SURETY.  See  Bond;  Surety  Companies; 
Undertakings. 

Action  to  compel  satisfaction  of  debt  for 
which  surety  bound,  §  1050. 

Affidavit  of  sureties,  §  1057. 

Affidavit  of  sureties,  what  to  state, 
§  1057. 

Ajipeal,  on.     See  Appeals,  IV. 

Attachment,  in,  exception  to,  §  539. 

Attachment,  in,  justification  of,  §  539. 

Contribution,  §  709. 

Corporation  as,  deficiency  of  assets,  pro- 
ceedings in  case  of,  §  1056. 

Corporation  as,  jurisdiction,  powers  and 
duties  of  insurance  commissioners 
over,  §  1056. 

Corporation  as,  may  act  with  other  sure- 
ties when,  §  1067. 

Corporation  as,  not  to  act  where  de- 
ficiency of  assets,  §  1056. 

Corporations  as,  assets,  how  estimated, 
§  1056. 

Corporations  as,  powers  and  liabilities, 
§  1056. 

Corporations  authorized  to  act  as, 
§§  1056,  1057. 

Corporations,  conditions  requisite  to 
acting  as,  §  1056. 

Corporations,  what  may  act  as,  §  1056. 

Exception  to,  in  attachment  in  justice's 
court,  §  867. 

Exception  to,  on  appeal  bond  to  superior 
court,  §  978. 

Exception  to,  on  attachment  of  vessel, 
§821. 

Exception  to,  on  appeal  to  supreme 
court.     See  Appeals,  IV. 

Exception   to,   on   injunction,  §  529. 

Exception  to,  waiver  by  failure  to  make, 
§§513,529. 

Exception  to,  where  bond  given  by  gran- 
tee in  suit  to  set  aside  fraudulent  con- 
veyance, §  678. 

Indemnity.     See  Indemnity. 

Injunction,  upon,  exception  to   §  529. 

Insufficient,  sureties  becoming,  new 
bond,  failure  to  file,  rights  to  cease, 
§  1057. 

Insufficient  sureties  becoming,  new  bond 
may  be  ordered,  §  1057. 

Joinder  of,  in  action  on  negotiable  in- 
strument, §  383. 

Joinder  of  sureties  on  same  or  separate 
instruments,  §  .^83. 

Judgment  against  principal  conclusive 
against,  when,  §  1055. 


SURETY.      (Continued.) 

Judgment  against  sheriff,  conclusiveness 
against  sureties,  §  1055. 

Judgment,  entry  of,  against,  on  five 
day's  notice,  §  1055. 

Justification  of,  extension  of  time  for, 
§  1054. 

Justification  of,  in  attachment,  §§  554, 
555. 

Justification  of,  in  justice's  court,  §  92. 

Justification  of,  on  appeal,  §  948. 

Justification  of,  on  appeal  bond  to  su- 
perior court,  §  978. 

Justification  of,  on  attachment  of  vessel, 
§  821. 

Justification  of,  on  claim  and  delivery, 
§  513. 

Justification  of,  on  giving  bail,  §§  493. 
494,  495. 

Justification  of,  power  of  court  commis- 
sioner, §  259,  subd.  3. 

Justification  of  where  bond  given  by 
grantee  in  suit  to  set  aside  fraudu- 
lent conveyance,  §  678%. 

Liability  of,  on  undertaking  to  stay 
money  judgment,  §  942. 

New  bond  where  sureties  become  insuffi- 
cient, rights  cease  on  failure  to  file, 
§1057. 

Objection  to,  waiver  of,  by  failure  to  ex- 
cept, §§  513,529. 

Paying  judgment,  compelling  repay- 
ment, §  709. 

Qualifications  of  sureties,  §  1057. 

Qualifying  in  several  amounts,  when 
permitted,  §  1057. 

Referee,  surety  cannot  be,  §  641. 

Eeplevin  bond,  on,  when  not  bound  by 
affidavit  of  value,  §  473. 

Replevin,  in,  exception  to,  §  513. 

Replevin,  in,  justification  of,  §  515. 

Several  amounts,  sureties,  when  may 
qualify  in,  §  1057. 

Subrogation  of  surety  on  appeal  bond, 
§  1059. 

Subrogation  of  surety  on  paying  judg- 
ment, §§  709, 1059. 

Subrogation,  right  of,  and  proceedings 
to  obtain, §  709. 

Waiver  of  objection  by  failure  to  make, 
§§513,529. 

SURETY  COMPANIES. 

Certificate  of  authority  to  do  business, 
§  105 7a. 

Justification  by,  manner  of  and  proce- 
dure. §  1057a. 

Justification,  when  complete,  §  1057a. 

SURGEONS.     See  Physicians. 
SURPRISE. 

Amendment  on  ground  of,  §  473. 

As  ground  for  relief  from  default  judg- 
ment in  justice's  court,  §  859. 

New  trial  on  ground  of,  §  657. 

Relief  from  judgment  or  order  on 
ground  of,  §  473. 

SURVEY. 

Order  to  allow,  in  action  of  ejectment, 
§  742. 


eiv 


INDEX.       VOL.    I.       §§  1-1059. 


SURVIVAL. 

Action  not  abated  by  death,  disability, 
or  transfer,  when,  §  385.  See  Abate- 
ment. 

Continuance  of  action  against  suc- 
cessor or  representative, §  385. 

Death,  effect   on  limitations,  §§  353,  355. 

SUSPENSION. 

Executors  or  administrators,  of.  See 
Executors  and  Administrators. 

Statute  of  limitations,  of.  See  Limita- 
tion  of  Actions. 

SUTTER  COUNTY. 

One  superior  Judge  for  Sutter  and  Yuba 

counties,  §  65. 
Residence  of  superior  judge  of,  §  158. 

SWAMP  LAND  DISTRICT. 

Discjualification  of  judge  or  justice  in 
actions  in  relation  to,  and  proceed- 
ings on,  §  170. 


TAXATION.     See   Tax-collector. 

Adverse  possession,  payment  of  taxes 
necessary  to, §  325. 

Claim  and  delivery,  affidavit  in,  as  to 
taxes,  §  510. 

Costs  in  course  in  action  involving 
taxes,  §§  1022,1024. 

Limitation  of  action  against  tax-col- 
lector, §  341. 

Reuemptioner  must  pav  what  taxes, 
§§  702,  703. 

Taxpayer  can  enjoin  issuance  or  sale  of 
bonds  for  public  improvements,  §  .52Ga. 

TAX-COLLECTOR. 

Limitation  of  action  pgainst,  for  seizure 
of  goods,  §  341. 

TEACHER. 

Exempt  from  jury  duty,  §  200. 
Of    music,    exemption    of    property    of, 
§  690. 

TEAMSTER. 

Propertv  of,  exempt  from  execution, 
§  690.' 

TELEGRAPH. 

Line,    employee    of,    exempt     from    jury 

duty,  §  200. 
Seal,  how  described  by  telegraph,  §  1017. 
Service  by,  authorized,  §  1017. 
Service.by,  manner  of,  §  1017. 
Service  by,  powers  and  duties  of  officer, 
§  1017. 
TENANT.     See  Landlord  and  Tenant. 
TENANT  FOR  LIFE.     See   Life  Estate. 

TENANT  FOR  YEARS. 

Judgment  in  partition  does  not  affect, 
§  767. 

Partition.     See    Partition. 

Setting  off  of  estate  for  years  in  parti- 
tion, §  770. 

Waste,  liability  for,  §  732. 


TENANT   IN   COMMON. 

Any  member  may  sue  or  defend  for  all, 

§§  381,  384. 
Parties  in  suits  concerning,  §§  381,  384. 
Partition,  §§  752-801.     See  Partition. 
Waste,  liability  for,  §  732. 

TENDER. 

Before  suit  affects  costs  how,  §  1030. 
Keeping  good,  §  1030. 

Payment,  tender  is  equivalent  to,  on  re- 
demption, §  704. 

TENSE. 

of   words  in   code,  §  17. 

TENURE  OF  OFFICE.     See  Office. 

TERMS  OF  COURT. 

Sessions  of  court.  See  Superior  Court; 
Supreme   Court. 

TERRITORY. 

Included  under  state  and  United  States, 
§17. 

TESTIFY. 

Includes  what,  §  17. 

TESTIMONY.     See  Evidence. 

THINGS  IN  ACTION.     See  Choses  in  Ac- 
tion. 

TIMBER. 

Damages  for  cutting  or  carrying  away, 
§§733,734. 

TIMxI. 

Action  eomenced  when,  §  350. 

Alias  summons,  time  of  issuance  of, 
§408. 

Amend,  time  to  where  demurrer  sus- 
tained, §  476. 

Amendments,  time  to  answer,  §  432. 

Answer,  after  judgment  where  summons 
not  served,  §  473. 

Answer,   extension   of   time   for,  §  473. 

Answer,  notice  in  summons  of  time  for, 
§  407. 

Answer,  time  for,  §  407. 

Answer,  time  for  where  demurrer  over- 
ruled, §  476. 

Appeal,  exception  to  sureties  on,  §  948. 

Appeal,  justification  of  sureties  on  ap- 
peal, §  948. 

Appeal,  notice  of,  time  to  file,  §  941b. 

Appeal  to  superior  court,  §§  939,  974. 

Appeal  to  superior  court,  statement  on, 
amendments,    time    to    file,  §  975. 

Appeal  to  superior  court,  statement  on, 
time  to  file,  §  975. 

Appeal  to  superior  court,  time  to  file 
bond  on,  §  978a. 

Appeal  to  superior  court,  transmission 
of   papers,  §  977. 

Appeal  to  supreme  court,  time  of  taking, 
§  939. 

Appeal  to  supreme  court,  time  to  take 
where  motion  for  new  trial  pending, 
§§  939,941b. 

Appeal,  undertaking,  time  to  file,  §  940. 

Arrest,  order  for,  §  483. 


INDEX.      VOL.    I.       §§  1-1059. 


cv 


TIME.     (Continued.) 

Arrested     defendant,     surrender     of    by 
trial,  §§  488,489. 

Attachment   in    justice's   court,   time   of 
issuance  of,  §  86G 

Attachment,  justification   of  sureties   on 
undertaking  to  release,  §  oi54. 

Attachment,  motion  to  discharge,  §§  5.j4, 
5.36. 

Attaeliment  of  vessel,  §  817. 

Attachment,  time  of  issuance,  §  537. 

Attachment,  time  of  return,  §  559. 

Bill  of  exceptions,  amendments,  time  to 
file,  §  650. 

Bill  of  exceptions,  engrossing  and  serv- 
ing time  for,  §  650. 

Bill  of  exceptions,  notice  of  presentment 
to  judge,  §  650. 

Bill  of  exceptions,  preparation  and  set- 
tlement, §§  649,  650. 

Bill   of   exceptions,   proceedings   in   rela- 
tion to.     See  Exceptions. 

Bill  of  exceptions,  time  to  prepare  and 
serve,  §  650. 

Bill  of  exceptions,  time  to  prepare  and 
serve   amendments,  §  650. 

Bill     of     exceptions,     time     to     present, 
§§649,650. 

Bill   of   exceptions,    time    to    present    to 
judge,  §  649. 

Change  of  venue,  of  demand  for,  §  396. 

Claim  of  mariner  or  seaman,  time  to  con- 
test, §  826. 

Code  takes  effect  when,  §  2. 

Computation   of,   rule  for,  §  12. 

Computation    for    term    of    office    of    su- 
preme  judge,  §  41. 

Computation  of,   when   service   by   mail, 
§  1013. 

Computation  of,  when  last  day  falls  on 
holidays,  §  12. 

Contest  of  seaman's  claim,  §  826. 

Continuance  in  justice's  court,  length  of, 
§§874,876. 

Cost-bill,  on  appeal,  time  to  file,  §  1034. 

Cost-bill,  time  to  file,  §  1033. 

Costs,  motion  to  tax,  time  for,  §  1033. 

Costs,  security  for,  time  to  give,  §  1037. 

Court   commissioner,   report   of,   time   to 
make,  §  729. 

Decision,  time  for,  §  632. 

Default,   relief   from,   in   justice's    court, 

time  to  apply  for,  §  859. 
Delivery    of    property    in    claim   and    de- 
livery, when  may  be  demanded,  §  509. 

Demurrer,  extending  time  to  file,  §  473. 

Demurrer,    overruling,    time    to    answer 
runs  from  notice,  §  476. 

Demurrer,     sustaining,     time     to     amend 

runs  from  notice,  §  476. 
Demurrer  to  answer,  time  for,  §  443. 
Demurrer,  time  to  answer  or  amendment, 

where  overruled  or  sustained,  §  476. 
Entries  in  justice's  docket,  time  of  mak- 
ing, §  912. 
Exception,  time  of  taking,  §  646. 
Exception    to    sureties,   time   for,  §§  513, 
529. 


TIME.     (Continued.) 

Execution,  issuance,  after  five  years, 
§  685. 

Execution,  return   of,  time  for,  §  683. 

Execution,  time  within  which  to  issue, 
§681. 

Execution,  time  for  which  judge  may 
stay,  §  681a. 

Extension  of,  during  attendance  of  at- 
torney upon  legislature,  §  1054. 

Extension  of,  power  of  court  as  to, 
§§  473, 1054. 

Findings,  of  service  of,  §  634. 

Foreclosure,  report  of  commissioner  in, 
time  to  file,  §  729. 

Guardian  ad  litem,  appointment  in  jus- 
tice's court,  §  843. 

Holiday,  computation  of  time  where  last 
day  falls  on,  §  12. 

Injunction  prior  to  trial  continues  no 
longer   than   twelve   months,  §  527. 

Injunction,  time  of  granting,  §§  527,  528. 

Injunction,  time  of  issuing,  §  527. 

Intervention,  time  to  answer  or  demur, 
§387. 

Justice's  judgment,  service  of  notice  of 
rendition  of,  §  893. 

Judgment,  duration  of  lien,  §  671. 

Judgment  on  verdict,  time  of  entry  of, 
§§664,671. 

Judgment,  relief  from,  time  to  move  for, 
§473. 

Judgment,  vacation  of,  hearing  of  mo- 
tion, §  663a. 

Judgment,  vacation  of,  notice  of  mo- 
tion, §  663a. 

Justice's  court,  alias  summons,  time  to 
issue,  §  847. 

Justice's  court,  answer  or  demurrer  to 
amended  pleading  in,  time  for,  §  860. 

Justice's  court,  demurrer  to  answer  in, 
time  for,  §  857. 

Justice's  court,  demurrer  to  complaint  in, 
time  for,  §  854. 

Justices'  courts,  entry  of  judgment  in, 
§  892. 

Justices'  courts,  issuance  of  attachment 
in, §  866. 

Justice's  court,  lien  of  judgment  in, 
duration  of,  §  900. 

Justice's  court,  hearing  in,  §  850. 

Justice's  court,  judgment  in,  to  be  en- 
tered within  ten  days  after  submis- 
sion, §  892. 

Justice's  court,  judgment  upon  verdict 
in,  to  be  entered  at  once,  §  891. 

Justice's  court,  motion  to  vacate  judg- 
ment in, §  859. 

Justice's  court,  notice  of  time  in,  ser- 
vice of,  §  850. 

Justice's  court,  postponement  of  trial, 
time  of,  §§  874,  875,  876,  877. 

Justice's  court,  stay  in,  not  to  exceed 
ten   days,  §  901a. 

Justice's  court,  summons  in,  to  issue 
within  one  year,  §  840. 

Justice's  court,  time  for  appearance, 
§  845. 


CVl 


INDEX.      VOL.    I.       §§  1-1059. 


TIME.     (Continued.) 
Justice's     court,     time     for     appearance 

where   alias  summons   issued,  §  846. 
Justice's  court,  time  for  commencement 

of  trial  in,  §  873. 
Justice's   court,   time   of   making  entries 

in  docket,  §  912. 
Justice's  court,  time  to  amend  in,  §  858. 
Justice's  court,  time   to  answer,  §  845. 
Justice's  court,   time  within   which   exe- 
cution may  issue,  §  901. 
Justice's  judgment,  duration  of  lien   of, 

§900. 
Justification    of    sureties    on    bail    bond, 

notice  of,  §  493. 
Lien     of     judgment     filed     in     another 

county,  duration  of,  §  674. 
Lien   on   vessels,   duration   of,  §  813. 
Limitation   on   time   for  issuing  and   re- 
turning summons,  §  581. 
Lis  pendens  in  suit  to  quiet  title,  time 

to  file,  §  749. 
Mail,    extension    of    time    where    service 

is  by,  §  1013. 
Mail,  where  notice  served  by,  §  1005. 
"Month"   means   calendar   month,  §  17. 
Mortgage,     entry     of     satisfaction     of, 

§  675a. 
New    trial,    affidavits,    time    to    file    and 

serve,  §  659. 
New  trial,  notice   of  intention   to   move 

for,  time  to  file  and  serve,  §  659. 
New  trial,  time  to  file  counter-aflSdavits 

on  motion  for,  §  659. 
Notice  of  hearing,  §  594. 
Notice  of  justification  of  sureties,  §  712. 
Notice  of  motion,  time  of  service,  §  1005. 
Notice  of  rejection  of  bail,  §  492. 
Notice,  where  made  by  mail,  §  1003. 
Order,    relief    from,    time    to    move    for, 

§473. 
Pending,    action    deemed    to    be,    during 

what  time,  §  1049. 
Police    court,    summons    in,    issuance    of, 

§  930. 
Quieting     title,     issuance     of     summons, 

§  750. 
Eedemption,  §§  702,  703,  707. 
Eehearing,  §§  44,  45. 
Relief  against  default  in  justice's  court, 

application  for,  §  859. 
Report  of  referee  or  court  commissioner, 

time  to  make,  §  643. 
Return    of    temporary    restraining   order 

granted  without  notice,  §  527. 
Rules   of    court,    time    of    taking    effect, 

§130. 
Rules  of  supreme  court  take  effect  when, 

§130. 
Seaman,  claim  of,  time  to  contest,  §  826. 
Sheriff's     deed,     time     for    issuance     of, 

§703. 
Summons  in  civil  action  in  police  court, 

time  of  issuing  or  return,  §  930. 
Summons   in   justice's   court,    alias,   time 

for  issuance,  §  847. 
Summons  in  suit  to  quiet  tille,  time   to 
post  copy  on  property,  §  750. 


TIME.     (Continued.) 

Summons,  justice's  court,  time  for  issu- 
ance, §  840. 

Summons  in  police  court,  issuance  of, 
§930. 

Summons,  time  for  issuance  of,  §§  406, 
581a. 

Summons,  time  to  serve,  §  581a. 

Summons,  time  for  return  of,  §  581a. 

Summons,  time  to  answer,  §  407. 

Summons,  time  to  issue,  in  suit  to  quiet 
title,  §  750. 

Summons  to  joint  debtor  after  judg- 
ment, time  to  serve  and  return,  §  990. 

Summons,  when  to  be  issued  and  re- 
turned, §  581a. 

Surrender  bv  bail  of  arrested  defendant, 
time  for,  §§488,  489. 

Venue,  of  demand  for  change  of,  §  396. 

Within  which  an  act  is  to  be  done,  may 
be  extended, §  1054. 

Within  which  summons  may  issue  on 
complaint,  §§  406,  581a,  840. 

TITLE. 

Abstract  of,  in  partition,  §§  799,800. 

Action  involving,  to  real  estate,  costs 
allowed  of  course  when,  §  1022. 

Action  involving  title  to  realtj^,  publi- 
cation of  summons,  evidence  required 
before  granting  relief,  §  585. 

Adverse  claim,  action  to  determine, 
§  1050. 

Code,  title  of,  §  1. 

Complaint  to  contain,  §  426. 

Co-tenants  may  unite  in  suit  relating  to, 
§381. 

Defective  title  or  want  of  title  on 
papers,  effect  of,  §  1046.  - 

Parties  defendant  in  actions  involving, 
§379. 

Quieting,  §§  738-751.     See  Quieting  Title. 

State,  action  against  to  quiet  title.  See 
State. 

TITLE  INSUEANCE  COMPANIES. 

Action  on  policy,  limitation  of,  §  339. 

TOLL. 

Costs  of  course  in  action  involving, 
§  1022. 

TOLL-GATE. 

Keeper  of,  exempt  from  jury  duty,  §  200. 

TOETS, 

Definition  of  injury  to  person,  §  29. 
Definition  of  injury  to  property,  §  28. 
Joinder  of  actions  for,  §  427. 
Kinds  of,  §  27. 

TOWN. 

Partition   of  property  included  in  town 

site,  §  763. 
Service  of  summons,  on,  §  411. 

TOWNSHIP. 

Change  in  boundary,  succession  of  jus- 
tices, §  107. 

Justices  ^'i.  See  Justices'  Courts;  Jus- 
tices of  the  Peace. 


INDEX.      VOL.    I.       §§  1-1059. 


evil 


TEANSCRIPT. 

Appeal^  in.     See  Appeals,  V. 

Compensation    of    reporter,  §  274. 

Justice's  court,  §  92. 

Of  docket  filed  in  another  county,  judg- 
ment becomes  lien   there,  §  674. 

Of  entries  in  justice's  docket,  prima 
facie  evidence,  §  912. 

On  transfer  of  cause  from  justice's  to 
superior  court,  §  838. 

Phonographic  reporters,  on  appeal.  See 
Appeals,   V. 

Phonographic  reporters,  prima  facie  cor- 
rect, §  273. 

Eeference  to,  on  hearing  of  motion  for 
new  trial,  §  660. 

TRANSFER. 

Of  action  to  another  court,  manner  of, 
§399. 

Of  action  to  another  court,  when  proper, 
§397. 

Of  interest  in  action,  proceedings  on, 
§385. 

Venue,  change  of.     See  Place  of  Trial. 

Books,  papers  and  records  of,  to  new 
supreme  court  when  new  constitution 
adopted,  §  55. 

Business,  of,  when  extra  sessions  of  su- 
preme court  held,  §  67b. 

TRANSFERRED  CASE. 

Eemittitur,  §  56. 

TREASURER. 

Deposit  in  court  must  be  paid  to,  §  573. 
Deposit     with,  §  573.     See      Deposit     in 

Court. 
Money     deposited     with     treasurer     uy 

clerk  of  court,  how  withdrawn,  §  188. 

TREBLE  DAMAGES.     See  Damages. 

TRESPASS. 

Justice's  court,  action  for,  in,  §  112. 
Land,     on,     limitation     of     action     for, 

§  338. 
Personalty,  to,  limitation  of  action  for, 

§338. 
Timber,     cutting,     damages     for,  §§  733, 

734. 
Trees,  cutting,  damages  for,  §§  733,  734. 

TRIAIj.     See  Instructions;    Jurors;   Jury; 

Practice. 
Absence  of  party,  bringing  issue  to  trial 

in, §  594. 
Adjournment.     See  Adjournment. 
Admonition  to  jury  on  separation,  §  611. 
Argument,   case  may  be  brought  before 

court  for,  when,  §  665. 
Argument,    ease     reserved   for,    bringing 

before  court,  §  665. 
Argument,  order  of,  §  607. 
Argument,     reserving     case     for,  §§  664, 

665. 
Argument,    submission    of    case    without, 

§  607. 
Attorney,    trial    of    accusation     against, 

§297. 
Calendar,   causes,   how  must   be   entered 

on,  §  953. 


TRIAL.     (Continued.) 

Calendar,    causes    must    remain    on,    till 

when,  §  593. 
Calendar,  droj)ping  cause  from,  §  593. 
Calendar,    restoring   cause    to,  §  593. 
Challenge     of     jurors,  §§  601-603.       See 

Jurors. 
Change   of,  where   county   designated   is 

not  proper  county,  §  397. 
Changing   place   of,   for   convenience    of 

witnesses,  §  397. 
Changing     place    of,     for     disability    of 

judge,  §  397. 
Changing   place    of,   for   impartial    iury, 

§397. 
Changing  place  of,  grounds  for,  §  397. 
Changing  place  of.     See  Place  of  Trial. 
Clerk    must     keep     register   of     actions, 

§  1052. 
Clerk  taking  testimony,  when  no  short- 
hand reporter,  §  1051. 
Compromise,  offer  of,  how  made,  and  its 

effect,  §  997. 
Conduct  of,  §§  607-619. 
Conduct  of,  powers  of  judge,  §§  177,  178. 
Consolidation   of  actions,  when  may   be 

ordered, §  1047. 
Continuance,  costs  on,  §  1029. 
Continuance.     See  Continuance. 
Court,  by,  §  631. 
Decision  of  court,  facts  and  conclusions 

of    law    must    be    stated    separately, 

§  633. 
Decision    of   court   on    question   of   fact, 

filing,  time  for,  §  632. 
Decision    of    court   on    question    of   fact 

must  be  written,  §  632. 
Deposit  in  court,  §  573.     See  Deposit  in 

Court. 
Dismissal.     See  Dismissal. 
Error     disregarded     unless     substantial 

rights  affected,  §  475. 
Evidence.     See  Evidence. 
Exceptions,  §§  646-653.     See  Exceptions. 
Findings  of  fact  and  conclusions  of  law 

must  be  stated  separately,  §  633. 
Findings   of  fact   may   be  'waived   how, 

§634. 
Findings.     See  Findings. 
Hearing,    either   party   may    bring    issue 

to,  §  594. 
Hearing  in  absence  of  party,  §  594. 
Hearing,  notice  of,  §  594. 
Inspection   of   writings,   order   for.     See 

Inspection  of  Writings. 
Instructions.     See    Instructions. 
Issue    of    law,    proceedings    after    deter- 
mination of.  §§  636. 
Issue,  §§  588-596.     See  Issues. 
Issues,  by  whom  triable,  §§  309,  591,  592. 
Joint  debtor,  proceedings  against,  when 

not     summoned     in     original     action, 

§§  989-994. 
Judge,  powers  of,  in  conduct  of  proceed 

ings,  §  177. 
.Tudoment      on      demurrer,      proceedings 

after,  §  636. 
Jurors.     See  .Jurors. 


CVlll 


INDEX.      VOL.    I.       §§  1-1059. 


TBIAL.      (Continued.) 

Jury,  admonition  to,  on  separation, 
§'611. 

Jury,  deliberation  of,  how  conducted, 
§613. 

Jury,  deliberation  of,  what  papers,  etc., 
may  and  may  not  taice  with  them, 
§612. 

Jury,  discharge  of,  before  verdict,  re- 
trial, §  616. 

Jury,   how  and   when   waived,  §  631. 

Jury,  polling,  §  618. 

Jury.     See  Jury. 

Justice's  court  in.  See  Justices'  Courts, 
XIV. 

New,  §§  606-6631/2.     See    New    Trial. 

Notice  of  hearing,  §  594. 

Order  of  proceeding  on  trial,  §  607. 

Order  of,  where  several  defendants, 
§607. 

Place  of.  See  Justices'  Courts,  XII  ; 
Place  of  Trial. 

Police  court,  in,  §§  929-933.  See  Police 
Court. 

Powers  of  judge  in  conduct  of  proceed- 
ings, §  177. 

Private,  in  what  cases  may  be  had, 
§125. 

Eeferee's  findings  must  state  conclu- 
sions of  law  and  fact  separately, 
§643. 

Reference,  §§  638-645.     See    Reference. 

Sick  juror,  proceedings  in  case  of,  §  615. 

Sittings  to  be  public,  §  124. 

Sittings,  when   may   be   private,  §  125. 

Special  issue,  not  made  by  pleadings, 
trial  of,  §  309. 

Statement  on  appeal.     See  Statement. 

Verdict,  how  declared,  §  618. 

Verdict,  informal,  proceedings  on,  §  619. 

Verdict,  sealed,  rendered  during  ad- 
journment, §  617. 

Verdict,  prevented,  retrial  of  cause, 
§616. 

Verdict.     See  Verdict. 

View  by  jury  of  premises,  conduct  of, 
§610. 

View  by  jury  of  premises,  when  allowed, 
§610. 

TROVER. 

Damages  for  cutting  and  carrying  away 
trees, §  733. 

TRUST     COMPANIES.        See      Trustees; 
Trusts. 
Limitation   of   actions   against,  §  348. 

TRUSTEES.  See  Trust  Companies; 
Trusts. 

Appeal  by,   dispensing  with   bond,  §  946. 

Beneficiaries,  may  sue  without  joining, 
§369. 

Costs  in  action  by  and  against,  §  1031. 

Deposit  in  court  by,  of  subject  of  litiga- 
tion, §  572. 

Express  trust,  trustee  of,  who  is,  §  369. 

Joinder  of  claims   against,  §  427. 


TRUSTEES.     (Continued.) 

Judgment  against  trustee  receiving  par- 
ticular kind  of  money  or  currency, 
§  667. 

Appeal  by  trustee  from  justice's  judg- 
ment, dispensing  with  bond,  §  946. 

TRUSTS,      See  Trust  Companies;  Trustees. 

Action  to  quiet  title  involving  trust 
under  will,  conclusiveness  of  deter- 
mination, §  738. 

Action  to  quiet  title  involving  trust 
under  will,  will  admissible,  §  738. 

Action  to  quiet  title,  validity  may  be  de- 
termined, §  738. 

Injunction  where  obligation  arises  from, 
■§  526. 

Parties  in  suit  to  establish,  §  381. 

TYPEWRITERS. 

Exempt  from   execution,  §  690. 

TYPEWRITING. 

Writing   includes,  §  17. 


u 

UNDERTAKING.     See   Bond;    Surety. 

Actions  on,  jurisdiction  of,  justice's 
court,  §  112. 

Affidavit  of  sureties,  §  1057. 

Appeal  to  superior  court,  on,  §  978. 

Appeals,  §§  940-949.     See  Appeals,  IV. 

Arrest  of  defendant  in  justice's  court, 
for,  §  862. 

Arrest  of  defendant,  on,  §§  482,  487. 

Attachment,  in,  §§  539,   540,  554. 

Attachment  in  justice's  court,  on,  §  867. 

Attachment  of  vessel,  on,  §  818. 

Attachment  of  vessel,  on  discharge  of, 
§822. 

Commissioner  or  elisor  to  sell  encum- 
bered property,  §§  726,  729. 

Continuance  over  ten  days  in  justice's 
court,  undertaking  to  pay  judgment 
in  case  of,  §  877. 

Corporation  acting  as  surety.  See 
Surety. 

Costs  by  non-resident  or  foreign  corpora- 
tion, for,  §  1036. 

County  or  city  and  countv  need  not  give, 
§  1058. 

Court  commissioners,  power  to  take  and 
approve,  §  259. 

Elisor,  of,  to  sell  encumbered  property, 
§  726. 

Fraudulent  conveyance,  by  grantee  on 
suit  to  set  aside.  See  Fraudulent 
Conveyance. 

Guardian,  of,  receiving  proceeds  of  par- 
tition sale,  §  794. 

Indemnity.     See   Indemnity. 

Injunction,  upon,  §  529. 

Judgment,  conclusiveness  against  sure- 
ties, §  1055. 

Judgment,  entry  of,  against  sureties  on 
five   days'  notice,  §  1055. 

Jurisdiction  of  justice  in  action  on, 
§112. 


INDEX.      VOL.    I.       §§  1-1059. 


CIX 


UNDERTAKING.      (Continued.) 

Liiiiitatiou   in  action   on,  §  34U. 

Municipality  need  not  give,  §  IO08. 

New,  failure  to  file,  where  sureties  in- 
sutfif'ient,  rights  to  cease,  §  1057. 

New,  may  be  required,  wiiere  sureties 
become  insuflSeient,  §  10.j7. 

Office,  action  for  usur[)ation  of,  under- 
taking where  brought  on  relation  of 
private  person, §  SIO. 

Officer  need  not  give,  §  1058. 

Particular  proceeding,  in.  See  particu- 
lar title. 

Quo  warranto,  in,  §  810. 

Receiver,  of  applicant  for,  §  567. 

Receiver,  on  appointment  of,  §  066. 

Replevin,  in,  §§  512,  514,  519,  520.  See 
Claim  and  Delivery. 

Requisites  of,  in  general,  §  1057. 

Several  actions  on,  costs  and  disburse- 
ments in  case  of,  §  1023. 

State,  county,  city,  town,  or  officer  need 
not  give,  §  1058. 

Supplementary  proceedings,  in,  §  715. 

Time  for  filing,  extension  of  time  for, 
§1054. 

UNITED  STATES. 

Includes   District   of   Columbia   and    the 

territories,  §  17. 
Judgment  in  suit  to  quiet  title  does  not 
bind, §  751. 

UNITED  STATES  COURTS. 

Proceedings  in,  not  stayed  by  injunc- 
tion, §  526. 

UNIVERSITY  OF  CALIFORNIA. 

Admission  to  practice  law  on  diploma 
from,  §  280b. 

UNIVERSITY  OF  SANTA  CLARA. 

Admission  of  graduates  to  practice  law 
without  examination,  §  280b. 

UNIVERSITY     OF     SOUTHERN     CALI- 
FORNIA COLLEGE  OF  LAW. 

Diploma  admits  to  practice  law  without 
examination,  §  280b. 

UNLAWFUL   DETAINER.     See    Forcible 
Entry  and  Unlawful  Detainer. 

UNMARRIED  FEMALE. 

May  recover  for  own  seduction,  §  374. 

USAGE.     See  Evidence. 

Local,  governs  actions  concerning  min- 
ing claim,  §  748. 

USURPATION  OF  OFFICE  AND  FRAN- 
CHISE. 

Action,      attorney-general      may     bring, 

when,  §  803. 
Action,     attorney-general,     when     must 

bring,  §  803. 
Action,    governor    may    direct    bringing, 

§  803. 
Action,  one  may  be  brought  against  all 

persons  claiming  office,  §  808. 
Action  to  be  in  name  of  people,  §  803. 
Action,  upon  whose  information  brought, 

§  803. 


USURPATION  OF  OFFICE  AND  FRAN- 
CHISE.     (Continued.) 

Appeal  from  judgment  that  one  is  usurp- 
ing office  does  not  stay,  §  949. 

Arrest  of  defendant  for  receiving  fees, 
§  804. 

Arrest,  proceedings  on,  §  804. 

Arrest,  who  may  order,  §  804. 

Complaint  in  action  for,  §  804. 

Complaint  may  set  forth  name  of  persoa 
entitled,  §  804. 

Complaint,   what  may  state,  §  804. 

Corporation  unlawfully  exercising  fran- 
chise, proceedings  against,  §  S()3. 

Costs,  when  defendant  liable  for,  §  809. 

Damages  may  be  recovered  by  claimant, 
§  80/. 

Fine  for,  §  809. 

Information,  §  803. 

Judgment  in  favor  of  claimant  entitles 
him  to  office,  §  806. 

Judgment  may  determine  rights  of 
either  or  both  parties,  §  805. 

Judgment  may  determine  rights  of  in- 
cumbent and  claimant,  §  805. 

Judgment,  where  defendant  guilty,  §  809. 

Oath  and  bond  of  claimant  on  taking 
office,  §  806. 

Rights  of  several  claimants  may  be  de- 
termined in  single  action,  §  808. 

Scire  facias  abolished,  §  802. 

Several  claimants,  right  may  be  deter- 
mined in  single  action,  §  808. 

Undertaking  in  action  for,  when  brought 
on  relation  of  private  person,  §  810. 

USURPER.  See  Usurpation  of  Office  and 
Franchise. 


VACANCY. 

Judge's  office,  effect  of,  §  184. 

Justice's  office,  how  filed,  §  111. 

Justice's  office,  in,  §  915. 

Proceedings    in    court    not    affected    by, 

§184. 
Superior  judgeship,   vacancy  in,  §  70. 
Supreme  judgeship,  vacancy  in,  §  42. 

VACATION. 

Arrest,  vacation  of,  §  503. 

Arrest,  vacation  of  order  for,  §  504. 

Judgment,    of,    grounds     for,  §  663.     See 

Judgment. 
Order  refused  by  another  judge,  §  183. 
Superior  court  may  vacate  its  judgment 

in  what  cases,  §  663. 

VARIANCE. 

Failure     of     proof,     and     not    variance, 

when,  §  471. 
Immaterial,    how   provided    for,  §  470. 
Material,  how  provided   for,  §  469. 
Material,  when  only  deemed  to  be,  §  469. 
Variance  between   allegation   and   proof, 

amendment,  §5  469,  470. 
What  not  deemed  to  be,  §  471. 


ex 


INDEX.      VOL.    I.       §§  1-1059. 


VENDOR  AND  VENDEE. 

Receiver,    appointment    of,    in    suit   by 
vendor  to  vacate  sale,  §  564. 

VENIRE.     See  Juror. 

VENUE.     See  Place   of  Trial. 

VERDICT. 

Adjournment,  bringing  in  sealed  verdict 

during,  §  617. 
Affidavit   of  jurors   to   show   misconduct 

of  jurors,  §  657. 
Amount    of    recovery,    jury     must   find, 

when,  §§  626,  627. 
Chance,  new  trial,  §  657. 
Claim  and  delivery,  verdict  in,  what  to 

find  and  assess,  §  627. 
Clerk,  duty  of,  §  618. 
Counterclaim  for  money,  verdict  to  find 

amount,  §  626. 
Courts  open  any  day  to  receive,  §  134. 
Death  after,  judgment  on,  §  669. 
Death    after    verdict    and    before    judg- 
ment, §  669 
Declared  how,  §  618. 

Directing  findings  upon  particular  ques- 
tions of  fact,!  625. 
Entry,  manner  of,  §  628. 
Entry  to  be  made,  §§  625,  628. 
Excepted  to,  deemed,  §  647. 
Exception    to,    for    insufficiency    of   evi- 
dence, form  of,  §  648. 
Findings,  special,  filing  and  entry,  §  625. 
Findings    upon    particular    questions    of 

fact,  directed  on  request,  §  625. 
Form  of,  §  618. 

General   controlled  by   special,   if  incon- 
sistent, §  625. 
General,  defined,  §  624. 
General,  findings   upon    particular    ques- 
tions   of   fact   directed   upon    request, 
§  625. 
General   or   special,   in    what    cases    dis- 
cretionary, §  625. 
General  or  special,  verdicts  are,  §  624. 
General,   when   may  be   rendered.  §  625. 
Holiday,  may  be  received  on,  §  134. 
In  actions  to  recover  realty,  §  740. 
In    proceedings    against    joint    debtors, 

§  994. 
Informal    or   insufiicient,    proceedings   in 

case  of, §  619. 
Interest  on,  to  be  included  in  judgment, 

§  1035. 
Is  general  or  special,  §  624. 
Judgment    not    supported    by,    notice    of 
motion    to    set   aside,   and   hearing   of, 
§  663a. 
Judgment  not  supported  hy  verdict,  set- 
ting aside,  §  663. 
Judgment     on,     when     to     be     entered, 

§  664. 
Judgment  roll,  as  part  of,  §  670. 
Jury,  discharge  of,  before  retrial,  §  616. 
Justice's  court,   in,  §851. 
Justice's  court,    entry    of    judgment    on 

verdict  in,  §  891. 
Money,     action     for,     verdict     to     find 

amount,  §  626. 
Polling  jury,  §  618. 


VERDICT.      (Continued.) 

Polling  jury,  proceedings  where  jury  dis- 
agree, §  618. 

Polling  jury,  verdict  complete  if  no  dis- 
agreement, §  618. 

Prevented,   retrial    of   cause,  §  616. 

Process,  bringing  in  sealed  verdict  dur- 
ing, §  617. 

Replevin,   in,  §  627. 

Review  of,  on  appeal,  §  956. 

Sealed,  rendered  during  recess  or  ad- 
journment, §  617. 

Special,  controls  general,  if  inconsistent, 
§625. 

Special,  court   may   direct,   when,  §  625. 

Special,  defined,  §  624. 

Special,  entry,  how  to  be  made,  §  628. 

Special,  entry  of,  to  be   made,  §  628. 

Special,  filing   and   entry   of,  §  625. 

Special,  inconsistent  with  general,  con- 
trols, §  625. 

Special,  judgment  rendered  in,  to  be  en- 
tered, §  628. 

Special,  must  be  filed  and  entered,  §  625. 

Special,  order  reserving  case  to  be  en- 
tered, §  628. 

Special,  requisites  of,  §  624. 

Special,  vacation  of  judgment  entered 
on, §  663. 

Special,  when  may  be  rendered,  §  625. 

Specific  personal  property,  in  action  to 
recover,  §  627. 

Three-fourths  jury  may  render,  §§  613, 
618. 

Vacation  of,  on  court's  own  motion, 
grounds  for.  §  662. 

Written,  must  be,  §  618. 

VERIFICATION. 

Accusation  against  attorney  to  be  veri- 
fied, §  291. 

Affidavit,  verification   to  be  by,  §  446. 

Affidavit,  what    to    state,  §  446. 

Answer  to  be  verified  where  complaint 
verified,  §  437. 

Attorney,  verification  by,  §  446. 

Commissioner  at  foreclosure  sale,  verifi- 
cation  of  report   of,  §  729. 

Complaint  in  action  against  vessel  to 
be  verified,  §  815. 

Corporation  a  party,  any  officer  may 
make,  §  446. 

Cost-bill,   verification    of,  §§  1033,   1034. 

County   a  plaintiff,   not   necessary,  §  446. 

Genuineness  and  execution  of  instru- 
ment are  not  admitted  when,  §  449. 

Genuineness  and  execution  of  instru- 
ment in  complaint  are  not  admitted 
when,  §  447. 

Genuineness  and  execution  of  written 
instrument  in  answer  admitted,  unless 
denied  under  oath,  §  448. 

Iniunction,  complaint  for,  must  be  veri- 
fied, §  527. 

Injunction  may  be  issued  on  verified 
complaint,  §  527. 

Manner   of,  §  446. 

Necessary    when,  §  446. 

Oflicer  a   plaintiff,  not  necessary,  §  448. 

Party  to  make,  generally,  §  446. 


INDEX.      VOL.    I.       §§  1-1059. 


C\l 


VERIFICATION.      (Continued.) 
Party,  by  one  other  than  a,  §  446. 
Pleadings,    verification    of,  §  446. 
Police  court,  complaint  in,  to  be  verified, 

§929. 
State  a  plaintiff,  no  necessary,  §  446. 
Vessels,  complaint  in   action   against   to 

be  verified,  §  815. 
Where   officer  or  state  a   plaintiff,  §  446. 
Where    written    instrument    attached    to 

pleading,  §§  447,  S87. 

VESSELS.     See   Shipping. 

VESTED  RIGHTS. 

Not  affected  by  code,  §  8. 

VIEW  OF  PREMISES. 

By  jury,  §  610. 

VOLUNTARY    ASSOCIATION.     See    As- 
sociates; Association. 


w 

WAGES. 

Exemption  of,  from  execution,  §  690. 
Fee   of  attorney  as  costs  in   action   for, 

in  justice's  court,  §  924. 
Lien  for.     See  Lien. 
Seamen's,  §  825,  826.     See  Shipping. 

WAIVER. 

Action  brought  in  wrong  county,  what 
is  waiver   of,  §  396. 

Appeal,  deposit  or  bond  on,  waiver  of, 
§§940,948. 

Demurrer  not  waived  by  filing  answer  at 
same  time,  §  472. 

Disqualification  of  judges,  waiver  of, 
§170. 

Findings,  waiver  of,  §  634.  See  Find- 
ings. 

Jury  in  justice's  court,  of,  how  effected, 
§883. 

Jury,  of,  §§  592,  631. 

Objections  to  complaint,  when  waived, 
§434. 

Objections,  what  cannot  be  waived,  §  434. 

Summons  in  justice's  court,  of,  §  841. 

Summons,  waiver  of  issuance  of,  by  ap- 
pearance, §  406. 

Sureties,  waiver  by  failure  to  object, 
§§513,539. 

Undertaking  on  appeal,  of,  §  940. 

Undertaking  or  deposit  on  appeal,  §  94S. 

WANT  OF  PROSECUTION. 

Dismissal,  failure  to  issue  or  serve  sum- 
mons, §  581. 

Dismissal  on  court's  own  motion,  §  583. 

Failure  of  plaintiff  to  bring  case  to  trial, 
§583. 

Notice  of  motion  to  dismiss,  §  583. 

WAR. 

As  cause  for  removal  of  court,  §  142. 
Limitation   of   actions,  how   affected  by 
war,  §  354. 

WARDS.     See  Guardian  and  Ward. 

WARRANT. 

For  salary  of  justice  of  peace,  §  103. 


WASTE. 

Cutting  or  injuring  trees,  damages  for, 
§733. 

Damages,  treble,  for,  §§  732-735. 

Enjoining,  pending  foreclosure,  §  745. 

Execution  sale,  waste  by  purchaser  re- 
strained, §  706. 

Execution  sale,  waste  by  purchaser,  what 
is  not,  §  706. 

Foreclosure,  enjoining  waste,  §  745. 

Guardians,  by,  §  732. 

Joint  tenants,  by,  §  732. 

Public  money  or  property,  right  to  en- 
join waste  of  by  officer,  §  ."j2ua. 

Public  officers,  by,  enjoining,  §  526a. 

Restraining,  during  time  to  redeem  from 
execution,  §  706. 

Security  against,  on  appeal,  §§  945,  978. 

Tenant  in  common,  by,  §  732, 

Tenants,  by,  §  732. 

What  is  not,  §  706. 

WATERS. 

Injunction  respecting,  vacation  or  modi- 
fication of,  §  532. 

Injunction  to  prevent  diversion,  diminu- 
tion, or  increase,  refusal  of  bond,  §  530. 

Offense  on  lake  or  stream  in  several 
counties,  venue  of  action,  §  393. 

Running  in  several  counties,  venue  of 
action  for  penalty  or  forfeiture,  §  395. 

WELLS. 

Implements  for  putting  down,  exemption 
of,  §  690. 

WHARFAGE. 

Vessels  liable  for,  §  813. 

WIFE.     See  Husband  and  Wife. 

WILLS. 

Action  to  quiet  title  involving  gift  or 
trust  under,  conclusiveness  of  deter- 
mination, §  739. 

Action  to  quiet  title  involving  gift  or 
trust  under,  will  admissible,  §  738. 

Action  to  quiet  title,  validity  of  gift  or 
trust  under,  may  be  determined,  §  738. 

Certificate  of  probate,  to  be  sealed,  §  153. 

Codicil,  will  includes,  §  17. 

Legacy  or  devise,  appealability  of  order 
refusing  or  allowing  payment  of,  §  963. 

Order  admitting  or  refusing  admission  to 
probate,  appealable,  §  963. 

Order  or  judgment  relating  to  validity 
of  will,  appealable,  §  963. 

Orders  in  probate  proceedings,  what  ad- 
missible, §  963. 

Probate,  certificate  of,  to  be  sealed,  §  153. 

WITNESSES.     See  Evidence;  Depositions. 
Absence    of,    postponement    of   trial    for, 

§  595. 
Attendance,  power  of  judicial  officer  to 

compel,  §  177. 
Changing  place  of  trial  for  convenience 

of.  §  397. 
Clerk  to  take  testimony  when,  §  1051. 
Compelling,  to  produce  books  and  papers, 

§  1000. 
Contempt  in  justice's  court,  §  906. 


cxn 


INDEX.       VOL.    I. 


1-1059. 


WITNESSES.      (Continued.) 

Continuance  because  of  absence  of.  See 
Continuance. 

Deposition  of,  on  postponement  of  trial, 
§  596. 

Depo.sitions.     See  Depositions. 

Disqualified  as  referee,  §  641. 

Docket  of  justice  of  peace  must  contain 
names  of,  §  911. 

Evidence  of.     See  Evidence. 

Exclusion  of,  from  courtroom,  §  12.5. 

Juror  as,  §  60Xi. 

.Juror,  trial  of  challenge,  witnesses,  §  603. 

On  trial  of  challenge  of  juror,  §  603. 

Power  of  court  to  compel  attendance, 
§  128. 

Power  of  judicial  officer  to  compel  at- 
tendance of,  §  177. 

Keferee,  disqualified  as,  §  611. 

Subpcena,  how  served,  §  1015. 

Subscribing,  mark,  §  17. 

Supplementary  proceedings,  at,  §  718. 

WORDS     AND     PHRASES.     See     Defini- 
tions. 

Abbreviations.  §  186. 

"Action"  includes  special  proceedings, 
§363. 

Attinity,  §  17. 

Construed  according  to  context  and  ap- 
proved usage,  §  16. 

County  includes  city  and  county,  §  17. 

Depose,  §  17. 

Joint  authority,  words  giving,  §  15. 

Masculine  gender,  §  17. 

Month,  §  17. 

Oath,  §  17. 

Person,  §  17. 

Personal  property,  §  17. 

Plural  number,  words  in,  §  17. 

Present  tense,  words  in,  §  17. 

Process,  §  17. 

Property,  §  17. 

Eeal  property,  §  17. 

Seal,  §  14. 

Section,  §  17. 

Signature,  §  17. 

Singular  number,  words  in,  §  17. 

State, §  17. 

Subscription,  §  17. 

Technical  words  and  phrases,  §  16. 

Testify,  §  17. 

Typewriting,  writing  includes,  §  17. 

United  States,  §  17. 

Will,  §  17. 

Writ,  §  17. 

Writing,  §  17. 
WRITINGS.     See  Written  Instruments. 

Includes  what,  §  17. 
WRITS. 

Court  commissioner,  power  to  hear  mo- 
tions for,  §  259 

Defined,  §  17. 

Justices'  clerks  and  deputies  in  town- 
ships in  counties  of  seventh  class  by, 
issuance  and  form  of,  §  103b. 

Justices'  courts  in  townships  of  two  hun- 
dred and  fifty  thousand  and  over,  issu- 
ance of  in,  §  101. 

Justices'  clerks  in  townships,  power  to 
issue,  §  103a. 


WRITS.      (Continued.) 

Particular  writ.     See  particular  title. 
Power  of  judges  to  grant  and  discharge, 

at  chambers,  §§  165,  166. 
Scire  facias  abolished,  §  802. 
Seal,  necessity  of,  §  153. 
Service  of,  must  be  on  party,  §  1015. 
Superior    court    may    issue    what    writs, 

§  76. 
Superior  judge,  power  of,  to  issue,  §  76. 
Supreme  court,  power  of,  to  issue,  §  51. 
Telegrapn,  service  by,  §  1017. 

WRITS    OF    ASSISTANCE.     See    Assist- 
ance. 

WRITS     OF    POSSESSION.     See     Assist- 
ance. 
In  suit  to  determine  adverse  claim  §  380. 

WRITS  OF  PROHIBITION.     See  Prohibi- 
tion. 

WRITS  OF  REVIEW.     See  Review. 

WRITS  OF  SCIRE  FACIAS. 

A'bolished,  §  802. 

WRITTEN  INSTRUMENTS. 

Adverse  possession  under  written  instru- 
ments, §§  322,  323. 

Annexed  to  pleadings,  denial  of,  manner 
of,  §§  447,448,887. 

Construction  of,  lex  loci  controls,  §  337. 

Exhibiting  original  and  delivering  copj"^ 
to  adverse  party,  §  886. 

Inspection  of,  demand  for,  §  440. 

Inspection  of.     See  Inspection  of  Writ- 
ings. 

Limitation  of  actions  on,  §  337. 

Lost,  how  supplied,  §  1045. 

Notice  to  produce.     See  Evidence. 

Pleading,  genuineness  of,  how  admitted 
or  controverted,  §§  447-449,  887. 

Pleading,  in  justice's  court,  and  admis- 
sion of  genuineness,  §§  886,  887. 

Seal.     See  Seal. 
WRONGFUL  DEATH.     See  Death. 

Damages  for,  §  377. 

Guardian   may   sue   for   death   of   ward, 
§376. 

Heirs  may  sue  for,  §  377. 

Limitation  of  action  for,  §  339. 

Parent  may  sue  for  death  of  minor,  §  376. 

Representatives,  when  may  sue  for,  §  377. 

Who  may  be  sued  for,  §§  376,  377. 

Who  may  sue  for,  §  377. 
WRONGS.     See  Torts;  Wrongful  Death. 

Definition  of  injury  to  person,  §  29. 

Definition  of  injury  to  property,  §  28. 

.Joinder  of  actions  for,  §  427. 

Kinds  of,  §  27. 


YOUNG  MEN'S   CHRISTIAN   ASSOCIA- 
TION. 

Admission   to    practice   law   on    diploma 
from  Law  College  of,  §  280b. 
YUBA  COUNTY. 

One  superior  judge  for  Yuba  and  Sutter 
counties,  §  65. 

Residence  of  superior  judge,  §  158. 


SCIICn^  C7  LAV/  LIBRARY 
UNIVERSITY  OF  CALIFOUNLA: 

LOS  ANGELES 


